Why Could the Church Not Be Allowed to Own Land Forever? It Never Died

Under the medieval system of landholding, a lord's income came substantially from events, particularly the death of a tenant, which triggered a payment from the heir, and which could produce control of the land and of the heir's marriage if the heir was a child. An institution such as a monastery or a chantry never dies, never has an heir and never marries, so land granted to one produced none of those payments ever again and passed permanently out of the system. The phrase used, translating as dead hand, describes land held in a grip that never relaxes. From the lord's point of view the land had simply gone.

Grants to religious institutions were made for reasons that were compelling at the time:

• •Prayers for the donor's soul, understood as reducing time in purgatory
• •A perpetual endowment paying a priest to say those prayers forever
• •Burial within the institution and commemoration by name
• •Genuine piety, and the social expectation surrounding it
• •Provision for family members entering religious life
• •Occasionally, evading the obligations of ordinary tenure deliberately

English kings legislated repeatedly and the sequence shows how difficult the problem was to close. A provision in Magna Carta already addressed a device by which land was granted and taken back as a tenancy. A statute of 1279 prohibited granting land into these hands without royal licence, with forfeiture as the penalty. A further statute of 1290 closed a workaround. Legislation of 1391 extended the rules to cover guilds and boroughs, which had been used as intermediaries. The system settled into one where grants were possible but required a licence for which a fee was paid, which converted a prohibition into a revenue stream, a pattern common in medieval regulation.

Legislation of this kind produces workarounds immediately and the medieval ones are ingenious. Land was granted to individuals who held it on trust for the institution, which kept the legal title in mortal hands while the benefit went where intended, and that device is one of the origins of the trust in English law. Collusive lawsuits were staged, with the institution suing for land and the supposed owner declining to defend, so a court awarded it and no grant had technically been made. Guilds and town corporations were used as intermediaries until legislation caught them in 1391. Each closure produced the next evasion, which is why the statutes had to be re-enacted so many times.

The underlying concern outlived the feudal payments that prompted it, which is why restrictions survived long after the original reason had gone. The later objection was economic, that land locked into perpetual institutional ownership cannot be sold, improved or put to better use, and that accumulating it indefinitely removes an ever-growing share of the country from circulation. Similar restrictions were adopted in other European countries and in several American states, and dissolution of monastic property in various countries settled the question by force. Modern law has related doctrines limiting how long property can be tied up by a trust, which address the same worry about the dead controlling the living.

An institution never dies, so land granted to one never triggered the death payments that were a lord's main income from it and passed permanently out of the system. English statutes from 1279 required a royal licence, which eventually turned a prohibition into a fee. The later objection was economic rather than feudal, that land locked up forever cannot be sold or improved, which is the concern behind modern limits on trusts.