The Doctor and Student (1518)
Christopher St. Germain
Of the first ground of the law of England
The first ground of the law of England is the law of reason, whereof thou hast treated before in the second chapter, the which is kept in this realm, as it is in all other realms, and as of necessity it must needs be, (as thou hast said before.)
Doct. But I would know what is called the law of nature after the laws of England.
Stud. It is not used among them that be learned in the laws of England to reason what thing is commanded or prohibited by the law of nature, and what not, but all the reasoning in that behalf is under this manner. As when any thing is grounded upon the law of nature, they say, that reason will that such a thing be done; and if it be prohibited by the law of nature, they say it is against reason, or that reason will not suffer that to be done.
Doct. Then I pray thee show me what they that be learned in the laws of the realm hold to be commanded or prohibited by the law of nature, under such terms, and after such manner, as is used among them that be learned in the said laws.
Stud. There be put by them that be learned in the laws of England two degrees of the law of reason, that is to say, the law of reason primary, and the law of reason secondary. By the law of reason primary be prohibited in the laws of England murder (that is, the death of him that is innocent), perjury, deceit, breaking of the peace, and many other like. And by the same law also it is lawful for a man to defend himself against an unjust power, so he keep due circumstance. And also if any promise be made by menace to the body, it is by the law of reason void in the laws of England. The other is called the law of secondary reason, the which is divided into two branches, that is to say, into a law of secondary reason general, and into a law of secondary reason particular. The law of a secondary reason. general is grounded and derived of the general law, or general custom of property, whereby goods moveable and immoveable. be brought into a certain property, so that every man may know his own thing. And by this branch be prohibited in the laws of England disseisins, trespass in lands and goods, rescuss, theft, unlawful with-holding of another man’s goods, and such other. And by the same law it is a ground in the law of England that satisfaction must be made for a trespass, and that restitution must be made of such goods as one man hath that belong to another man; the debts must be paid, covenants fulfilled, and such other. And because disseisins, trespass in lands and goods, theft, and other had not been known, if the law of property had not been ordained; therefore all things that be derived by reason out of the said law of property, be called the law of reason secondary general, for the law of property is generally kept in all countries.
The law of reason secondary particular is the law that is derived of divers customs general and particular, and of divers maxims and statutes ordained in this realm. And it is called the law of reason secondary particular, because the reason in that case is derived of such a law that is only holden for law in this realm, and in none other realm.
Doct. I pray thee shew me some special case of such a law of reason secondary particular, for an example.
Stud. There is a law in England, which is a law of custom, that if a man take a distress lawfully, that he shall put it in pound overt, there to remain till he be satisfied of that he distrained for. And then thereupon may be asked this question, that if the beasts die in pound for lack of meat, at whose peril die they? whether die they at the peril of him that distrained, or of him that oweth the beasts?
Doct. If the law be as thou sayest, and that a man for a just cause taketh a distress, and putteth it in the pound overt, and no law compelleth him that distrained to give them meat, then it seemeth of reason that if the distress die in pound for lack of meat, that it died at the peril of him that oweth the beasts, and not of him that distrained; for in him that distrained there can be assigned no default, but in the other may be assigned a default, because the rent was unpaid.
Stud. Thou hast given a true judgment, and who hath taught thee to do so but reason derived of the said general custom? And the law is so full of such secondary reasons derived out of the general customs and maxims of the realm, that some men have affirmed that all the law of the realm is the law of reason. But that cannot be proved, as me seemeth, as I have partly shewed before, and more fully will shew after. And it is not much used in the laws of England, to reason what law is grounded upon the law of the first reason primary, or on the law of reason secondary, for they be most commonly openly known of themselves; but for the knowledge of the law of reason secondary is greater difficulty, and therefore therein dependeth much the manner and form of arguments in the laws of England.
And it is to be noted, that all the deriving of reason in the law of England proceedeth of the first principles of the law, or of something that is derived of them: and therefore no man may right wisely judge, no groundly reason in the laws of England, if he be ignorant in the first principles. Also all birds, fowls, wild beast of forest and warren, and such other, be excepted by the laws of England out of the said general law and custom of property: for by the laws of the realm no property may be of them in any person, unless they be tame. Nevertheless the eggs of hawk, herons, or such other as build in the ground of any person, be adjudged by the said laws to belong to him that oweth the ground.