Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/160

 146 //. FROM THE llOO'S TO THE 1800'S on lands which they had neither the intelHgence nor the legal power to develope, divided from their own kindred by feelings of injustice and oppression, and especially at daggers drawn with their expectant heirs, whose utmost neglect and disobedi- ence they would be powerless to correct by threats of dis- herison. To suggest that Edward was a willing party to such an act of folly, is a monstrous calumny on his fair fame, and a gross outrage on the probabilities. Happily, the Statute De Donis was not destined to endure. Though, like much of Edward's legislation, it has never been formally repealed,^ it has, unlike much of that legislation, long been rendered a dead letter by the more cruel process of contemptuous evasion. In spite of the solemn provisions of the Statute, the principle laid down by it was defeated by the use of a legal fiction so indecently transparent, that it proves conclusively the unpopularity of the rule which it so successfully destroyed.^ Before the judges, without whose connivance such an evasion would have been impossible, allowed themselves to sanction it, we may be quite sure that they had satisfied themselves of the feebleness of the force behind the Statute. Unfortunately, it is at present quite impossible to say at what date the convenient fiction of _the laid profane hands on the Ark of the Covenant in the year 1887. But it only ventured to remove the merest trappings, leaving the substance untouched — and meaningless. ' If A, the owner of an entailed estate, wished to sell it to B, he got B to bring an action against him (A), asserting that the land belonged already to him (B), and that A was an interloper. Thereupon A attempted no defence on the merits, but merely pleaded that the estate had been entailed upon him, or one of his ancestors, by C, who had then guaranteed, or " warranted," its title. This process, technically known as " vouching to warranty," was repeated as often as was necessary to maintain a decent appearance of truth, but was finally assumed by an impecunious person (usually the crier of the court) who, for the modest fee of fourpence, was willing to take upon himself the responsibility of defending the case. A convenient adjournment allowed the fictitious claimant (B), to "imparl" (or talk) with the fictitious defendant (the crier), and, on the resumption of the trial, the latter failed to appear, having, in all probability, retired to spend his fourpence at the nearest alehouse. Thereupon, after solemn proclamation, he was pronounced in default, the claim of B was established by the judgement of the court (which, of course, no one could dispute), and the disappointed heirs of A were compensated, in theory, by a decree that the defaulting crier should give them lands of equal value. There were heavy fees all through this process, which may perhaps account for its success and complexity.
 * An impious Parliament, moved thereto by an impious committee,