to convey the fee simple to another though he still did not possess it himself. It was this ruling of the courts against which the statute De donis was directed. It made this interpretation illegal and declared that conditional grants must be interpreted strictly according to the terms of the grant. It thus restored the logical feudal development and perpetuated the system of entails, but this of course only made it necessary for the lawyers to devise some other method of breaking the entail. It is not necessary for the purposes of this book to follow in detail the historical development by which the devices for defeating the purpose of these statutes against free alienation, especially of De donis, were put into final form, notwithstanding many opposing acts of parliament by the way. It is important that the two chief results be briefly stated. Early provisions against grants in mortmain had been met by a collusive lawsuit called a recovery. A wishes to convey a piece of land to the monastery of X but cannot obtain permission to do so. By common understanding the monastery brings suit against A for the land, alleging a title to it superior to his. A allows the suit to go by default, and the land is transferred to the monastery by judgment of the court. This forms the basis of the action later called a common recovery, which was put into final form by the end of the fifteenth century and was used generally to break, or "bar" entails. The common recovery was the recovery elaborated, chiefly by an application of the doctrine of warranty, a doctrine which goes back in some of its forms into Saxon times and which was used in this case to make the title of the new owner more secure. B wishing to purchase from A an entailed estate brings suit as above, but A instead of defaulting himself "vouches to warranty" a third person C, from whom he alleges he obtained the land and who is under obligation to, warrant his title. C appears in court and accepts the obligation, thus taking the place of A in the case, but then disappears leaving the case to go by default BARRING ENTAIL 167 and the land to be transferred to B by a judgment of the court. By this process the claims of the heirs of A were effectually cut off since they would be told that C was the one against whom they must proceed and not B who really had the land, and for C's duties a man without property was carefully selected usually a subordinate of the court. In time all pretence of an actual trial was dropped, and all that was necessary was to have the records of the court made out as if the trial had taken place and to pay the required fees. The common recovery continued in use until a simpler method of barring entails was introduced in the nineteeth century. The other method of defeating the statutes against free alienation of land, and at the same time of accomplishing a variety of other purposes, was also a development of an earlier practice, the practice of nominally conveying property to one person really for the use of another. In law the ownership was vested in A; in practice the use and enjoyment belonged to B. This method, as developed after the legislation of Edward I, gave rise to the doctrine of uses, and in more modern times, in application to a wide variety of purposes to the law of trusts. Naturally, as in the case of recoveries, the history has been one of elaboration and the earlier stages are the simpler, but the development has been so logical that the simpler serves to explain the more elaborate. If A wishes to give an estate of land to a church or monastery, a thing he cannot do directly after the statute of Mortmain, he conveys it instead to B, stating in the deed the fact that it is for the use of the church. In law the grant is not to the church but to the man B. He is trusted by the donor to allow the church to have the management and proceeds of the land. The trust is considerable, because, if he does not choose to do so, there is no remedy in law. The land is his on the face of the documentary evidence, and the common law will not go behind that. The statute of Mortmain, however, is avoided, because no land has been in form given to the church. The practice in this simpler form was soon forbidden by another statute, but its application to a great variety of needs, and the ease with which the form was varied, led to its employment for a wide range of purposes. A man could escape his obligatory feudal payments, break an entail under the statute De donis, escape some of the penalties of treason, or, since he could not make a will bequeathing land feudally held, convey his land to the use of his last will and testament. Several trustees came to be named instead of one, with power to fill vacancies, in order to get a nominal owner who would not die. Statutes were made in vain from time to time against these various forms; some way was found to avoid them all. Before long equity took notice of the practice and began, especially in the fifteenth century, to enforce the trust, as a matter of justice and conscience. Thus from the original simple beginning, there followed in time a vast development which has come down to us, and corresponding to this, there was an equally great enlargement of the body of equity jurisprudence. BIBLIOGRAPHICAL NOTE.-G. B. Adams, The Origin of the English Constitution, 1920. J. F. Baldwin, The King's Council, 1913. C. Bémont, Simon de Montfort, 1884. F. J. C. Hearnshaw, Leet Jurisdiction in England, 1908. C. L. Kingsford, The Song of Lewes, 1890. K. Norgate, The Minority of Henry III, 1912. R. Pauli, Simon de Montfort, Translation of U. M. Goodwin, 1876. G. W. Prothero, Simon de Montfort, 1877. T. F. Tout, The Administrative History of Medieval England, 2 Vols., 1920; Edward I, 1893. CHAPTER VII THE ORIGIN OF PARLIAMENT Vastly important as was the legal development of the thirteenth century for the whole Anglo-Saxon world, there was taking place at the same time an institutional change which was of greatly wider influence, for its results were in the nineteenth century to be extended to the advantage of all mankind. This change was the transformation of the great council into parliament which was not quite but nearly completed before the century closed. It is accurate enough to call the process one of change, but in truth the old great council went on in the new parliament with only slight changes and is present in it today in the house of lords almost exactly as it existed under Henry II. The process by which parliament was formed was the introduction into meetings of the great council of certain elements of the community which, in the days when unmodified feudal ideas were ruling, had no standing in it. In tracing the origin of parliament, we have to trace the steps by which these elements were introduced and the probable reasons for the innovation. A great economic and social change was taking place in the thirteenth century, one of whose results began to make itself felt soon after the middle of the century. This change was the rise to an interest in public affairs of two new classes alongside the older feudal ruling classes or, if it is too much to say to an interest in what we should mean today by the political control of the state, at least to a position of interest in the influence which public policy might have on their own affairs. They speedily became also of importance in their support and resources to the ruling classes, or to the government of the day. These two classes were the knights of the country districts and the burgesses of the towns. The knights were of course an older class, one of the feudal classes, but the change which was taking place in the thirteenth century made out of them a new class, in some respects peculiar to England, whose peculiarity and significance will be discussed later. The smallest of the minor barons who was the tenant in chief of the king for a single knight's fee or less could never have had any great interest in political feudalism. He could have only a domanial court from which he could hope for no political independence. His military service could never have been a source of much pride or consideration, and his court service to the king, so far as we can tell, was generally left unperformed, performed only on special occasions. The decline in political feudalism, which in the thirteenth century affected all feudal classes, affected the knights most rapidly and thoroughly. The demands connected with the Provisions of Oxford show that fact clearly. Meantime their class was being enlarged. The distinction in anything but form between these minor tenants in chief and the rear tenants of single knight's fees, who held of mesne lords, must always have been somewhat artificial, and rather early in the long reign of Edward I it was even in form swept away. All holders of twenty pounds' worth of land of whomsoever holding were brought under the same military regulations and the same distraint of knighthood. With the rise of prices during the century many holders of fractional fees also came to have the required income and became in law knights as they had undoubtedly been earlier classed by custom. A class was forming, the beginning of the country gentry of England, which finds a chief political interest in the management of county business, long in their hands and greatly increased in importace by the itinerant justice system, and which finds by degrees its personal and sometimes its public interests not quite the same as those of |