The Mortmain Act 1967 : its genesis and interpretation

Abstract

The word mortmain literally means "dead hand". The expression may well have originated from the rich symbolism of Germanic law; the effect of a culture where every concept of political and social power as well as of friendship and peace, was expressed through the hand. The phrase however took on its most widespread usage with the onset of Feudalism. Those who lived in the condition of serfs were considered manus mortuas, and this derived from the usage whereby the Lord exercised his ius spolii on the death of the serf. If the Lord did not find anything to take as spoil the right hand of the dead serf was presented for him to clasp as a symbol of his lordship and also of the fact that the serf could serve him no longer. Furthermore, the expression also derives from the macabre analogy with the hand of a dead man which, contracted with rigor cadavericus, would not let loose anything which it has grasped. "Men in mortmain" were the serfs of the glebe and vassals of the Lord, who could not dispose of their property by will. The "Right of Mortmain" was the fee that the serf or vassal paid in order to be freed from the former incapacity; and the same expression also referred to the right of the landlord to succeed to the vassal who died without male heirs. "Mortmain entities" were those which did not pay succession duty. As the English feudal adage had it "a dead hand yieldeth no service."