The Doctor and Student (1518)

Christopher St. Germain

Of the second ground of the law of England

The second ground of the law of England is the law of God: and therefore for punishment of them that offend against the law of God, it is enquired of many courts in this realm, if any hold any opinion secretly, or in any other manner against the true catholick faith; and also if any general custom were directly against the law of God, or if any statute were made directly against it: as if it were ordained that no alms should be given for no necessity, the custom and statute were void. Nevertheless the statute made in the thirty-fourth year of king Edward III., whereby it is ordained, that no man, under pain of imprisonment, shall give any alms to any valiant beggars that may well labour, that they may so be compelled to labour for their living, is a good statute, for it observeth the intent of the law of God. And also by authority of this law there is a ground in the laws of England, that he that is accursed shall maintain no action in the king’s court, except it be in very few cases; so that the same excommunication be certified before the king’s justices in such manner as the law of the realm hath appointed. And by the authority also of this ground the law of England admitteth the spiritual jurisdiction of dismes and offerings, and of all other things that of right belong unto it; and receiveth also all laws of the church duly made, and that exceed not the power of them that made them. Insomuch that in many cases it behoveth the king’s justices to judge after the laws of the church.

Doct. How may that be, that the king’s justices should judge in the king’s courts after the law of the church? for it seemeth that the church should rather give judgment in such things as it may make laws of, than the king’s justices,

Stud. That may be done in many cases, whereof I shall for an example put this case: If a writ of right of ward be brought of the body, etc. And the tenant confessing the tenure, and the nonage of the infant, saith, that the infant was married in his ancestor’s days, etc., whereupon twelve men be sworn, which give this verdict that the infant was married in the life of his ancestor, and that the woman in the life of his ancestor sued a divorce, whereupon sentence was given that they should be divorced, and that the heir appealed, which hangeth yet undiscussed, praying the aid of the justice to know whether the infant in this case shall be said married or no: in this case, if the law of the church be that the said sentence of divorce standeth in his strength and virtue until it be annulled upon the said appeal, that the infant at the death of his ancestor was unmarried, because the first marriage was annulled by that divorce, and if the law of the church be, that the sentence of the divorce standeth not in effect till it be affirmed upon the said appeal then is the infant yet married, so that the value of his marriage cannot belong unto the lord: and therefore in this case judgment conditional shall be given, etc. And in likewise the king’s justices in many other cases shall judge after the law of the church, like as the spiritual judges must in many cases form their judgment after the king’s laws.

Doct. How may that be, that the spiritual judges should judge after the king’s laws? I pray thee shew me some certain case thereof.

Stud. Though it be somewhat a digression from our first purpose, yet I will not withsay thy desire, but will with good-will put thee a case or two thereof, that thou mayest the better perceive what I mean. If A. and B. have goods jointly, and A. by his last will bequeathe his portion therein to C. and maketh the said B. his executor, and dieth, and C. asketh the execution of this will in the spiritual court in this case the judges there be bound to judge that will to be void, because it is void by the laws of this realm. And likewise if a man be outlawed, and after, by his will, bequeath certain goods to John at Stile, and make his executors, and die, the king seiseth his goods, and after giveth them again to the executors, and after John at Stile sueth a citation out of the spiritual court against the executors, to have execution of the will: in this case the judges of the spiritual court must judge the will to be void, as the law of the realm is that it is; and yet there is no such law of forfeiture of goods by outlawry in the spiritual law.