The Doctor and Student (1518)
Christopher St. Germain
Of the third ground of the law of England
The third ground of the law of England standeth upon divers general customs of old time used through all the realm, which have been accepted and approved by our sovereign lord the king, and his progenitors, and all his subjects. And because the said customs be neither against the law of God, nor the law of reason, and have been alway taken to be good and necessary for the commonwealth of all the realm; therefore they have obtained the strength of a law, insomuch that he that doth against them, doth against justice: and these be the customs that properly be called the common law. And it shall alway be determined by the justices whether there be any such general custom or not, and not by twelve men. And of these general customs, and of certain principles that be called maxims, which also take effect by the old custom of the realm (as shall appear in the chapter next following), dependeth most part of the law of this realm. And therefore our sovereign lord the king, at his coronation, among other things, taketh a solemn oath that he shall cause all the customs of his realm faithfully to be observed.
Doct. I pray thee shew me some of these general, customs.
Stud. I will with good-will; and first, I shall shew thee how the custom of the realm is the very ground of divers courts in the realm, that is to say, of the chancery, of the king’s bench, of the common pleas, and the exchequer, the which be courts of record; because none may sit as judges in these courts, but by the king’s letters patents. And these courts have divers authorities, whereof it is not to treat at this time. Other courts there be also only grounded by the custom of the realm, that be of much less authority than the courts before rehearsed. As in every shire within the realm there is a court that is called the county, and another that is called the sheriff’s torne; and in every manor is a court that is called a court-baron, and to every fair and market is incident a court that is called a court of piepowders. And though in some statutes is made mention sometime of the said courts; yet nevertheless, of the first institution of the said courts, and that such courts should be, there is no statute nor law written in the laws of England. And so all the ground and beginning of the said courts depend upon the custom of the realm; the which custom is of so high authority, that the said courts ne their authorities, may not be altered, ne their names changed, without parliament.
Also by the old custom of the realm, no man shall be taken, imprisoned, disseised, nor otherwise destroyed, but he be put to answer by the law of the land: and this custom is confirmed by the statute of magna charta, cap. 26.
Also by the old custom of the realm, all men great and small shall do and receive justice in the king’s courts: and this custom is confirmed by the statute of Marlb., cap. I.
Also by the old custom of the realm, the eldest son is only heir to his ancestor; and if there be no sons, but daughters, then all the daughters shall be heirs. And so it is of sisters and other kinswomen. And if there be neither son, daughter, brother, nor sister, then shall the inheritance ascend to the next kinsman or kinswoman of the whole blood to him that had the inheritance, of how many degrees soever they be from him. And if there be no heir general nor special, then the land shall escheat to the lord of whom the land is holden.
Also by the old custom of the realm, lands shall never ascend or descend from the son to the father or mother, nor to any other ancestor on the right line, but it shall rather escheat to the lord of the fee.
Also if an alien have a son that is an alien, and after is made denizen, and hath another son, and after purchaseth, lands, and dieth; the youngest son shall inherit as heir, and not the eldest.
Also if there be three brethren, and the middest brother purchase lands, and dieth without heir of his body; the eldest brother shall inherit as heir to him, and not the younger brother.
And if land in fee-simple descend to a man by the part of his father, and he dieth without heir of his body; then the inheritance shall descend to the next heir of the part of his father. And if there be no such heir of the part of his father, then if the father purchaseth the lands, it shall go to the next heir of the father’s mother, and not to the next heir of the son’s mother, but it shall rather escheat to the lord of the fee. But if a man purchase lands to him and to his heirs, and die without heir of his body, as is said before; then the land shall descend to the next heir of the part of his father, if there be any; and if not, then to the next heir of the part of his mother.
Also if the son purchaseth lands in fee, and dieth without heir of his body: the land shall descend to his uncle, and shall not ascend to his father: but if the father have a son, though it be many years after the death of the elder brother, yet that son shall put out his uncle, and shall enjoy the lands as heir to the elder brother for ever.
Also by the custom of the realm, the child that is born before espousals is bastard, and shall not inherit.
Also the custom of the realm is, that no manner of goods nor chattels, real nor personal, shall ever go to the heir, but to the executors, or to the ordinary, or administrators.
Also the husband shall have all the chattels personals that his wife had at the time of the espousals or after, and also chattels real, if he overlive his wife, but if he sell or give away the chattels real, and die, by that sale or gift the interest of the wife is determined, or else they shall remain to the wife, if she overlive her husband. Also the husband shall have all the inheritance of his wife, whereof he was seised in deed in the right of his wife during the espousals, in fee, or in fee-tail general, for term of life, if he have any child by her, to hold as tenant by the curtesy, of England; and the wife shall have the third part of the inheritance of her husband, whereof he was seised in deed or in law after the espousals, etc. But in that case the wife at the death of her husband must be of the age of nine years, or above, or else she shall have no dowry.
Doct. What if the husband at his death be within the age of nine years?
Stud. I suppose she shall yet have her dower. Also the old law and custom of the realm is, that after the death of every tenant that holdeth his land by knights service, the lord shall have the ward and marriage of the heir, till the heir come to the age of twenty-one years; and if the heir in that case be of full age at the death of his ancestor, then he shall pay to his lord his relief, which at the common law was not certain, but by the statute of magna charter it is put in certain; that is to say, for every whole knight’s fee to pay C. s. and for a whole barony, to pay a hundred marks for relief, and for a whole earldom to pay C. l. and after that rate. And if the heir of such a tenant be a woman, and she, at the death of her ancestor, be within the age of fourteen years, then by the common law she should have been in ward only till fourteen years, but by the stat. of W. I, in such case she shall be in ward till sixteen years. And if at the death of her ancestor she be of the age of fourteen years, or above, she shall be out of ward, though the land be holden of the king, and then she shall pay relief as an heir male shall.
Also of lands holden in socage, if the ancestor die, his heir being within the age of fourteen years, the next friend to the heir, to whom the inheritance may not descend, shall have the ward of his body and lands till he shall come to the age of fourteen years, and then he may enter. And when the heir cometh to the age of twenty-one years, then the guardian shall yield him an account for the profits thereof by him received.
Also such an heir in socage, for his relief, shall double his rent to the lord the year following the death of his ancestor: as if his ancestor held by 12d. rent, the heir in the year following shall pay the 12d. for his rent and other 12d. for his relief; and the relief he must pay, though he be within age at the death of his ancestor.
Also there is an old law and custom in this realm, that a freehold by way of feoffment, gift, or lease, passeth not without livery of seisin be made upon the land according, though a deed of feoffment be thereof made and delivered: but by way of surrender, partition and exchange, a freehold may pass without livery.
Also if a man make a will of land whereof he is, seised in his demesne as of fee, that will is void: but if it had stood in feoffee’s hands, it had been good. And also in London such a will is good by the custom of the city, if it be enrolled.
Also a lease for term of years is but a chattel by the law, and therefore it may pass without any livery of seisin: but otherwise it is of a state for term of life, for that it is a freehold in the law, and therefore livery must be made, or else the freehold passeth not.
Also by the old custom of the realm a man may distrain for rent-service of common right; and also for a rent reserved upon a gift in tail, a lease for term of life, of years, and at will: and in such case the lord may distrain the beasts of tenants, as soon as they come upon the ground; but the beasts of strangers that come in but by manner of an escape he may not distrain, till they have been levant and couchant upon the ground. But for debt upon an obligation, nor upon a contract, nor for account, ne yet for arrearages of account, nor for no manner of trespass, reparations, nor such other, no man may distrain.
And, by the old custom of the realm, all issues that shall be joined between party and party in any court of record within the realm, except a few whereof it needeth not to treat at this time, must be tried by twelve free and lawful men of the visne, that be not of affinity to none of the parties; and, in other courts that be not of record, as in the county, court-baron, hundred, and such other like, they shall be tried by the oath of the parties, and not otherwise, unless the parties assent that it shall be tried by the homage. And it is to be noted that lords, barons, and all peers of the realm be excepted out of such trials, if they will, but if they will wilfully be sworn therein, some say it is no error and they may, if they will have a writ out of the chancery directed to the sheriff, commanding him that he shall not impanel them upon no inquest.
And of this that is said before it appeareth, that the customs aforesaid, or other like unto them, whereof be very many in the laws of England, cannot be proved to have the strength of law only by reason. For how may it be proved by reason that the eldest son shall only inherit his father, and the younger to have no part; or that the husband shall have the whole land for term of his life as tenant by the curtesy, in such manner as before appeareth, and that the wife shall have only the third part in the name of her dower; and that her husband shall have all the goods of his wife as his own, and that if he die, the wife living, that his executors shall have the goods, and not the wife? All these and such other cannot be proved only by reason, that it should be so, and no otherwise, although they be reasonable; and that, with the custom therein used, sufficeth in the law, and a statute made against such general customs ought to be observed, because they be not merely the law of reason.
Also the law of property is not the law of reason, but the law of custom, howbeit that it is kept, and is also most necessary to be kept, in all realms, and among all people; and so it may be numbered among the general customs of the realm. And it is to understand that there is no statute that treateth of the beginning of the said customs, ne why they should be holden for law; and therefore after them that be learned in the laws of the realm, the old custom of the realm is the only and sufficient authority to them in that behalf. And I pray thee shew me what doctors hold therein, that is to say, whether a custom only be a sufficient authority of any law.
Doct. Doctors hold that a law grounded upon a custom is the most surest law; but this thou must always understand therewith, that such a custom is neither contrary to the law of reason, nor the law of God. And now I pray thee shew me somewhat of the maxims of the laws of England, whereof thou hast made mention before in the 4th chapter.
Stud. I will with good-will.