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The Doctor and Student (1518)

Christopher St. Germain

DIALOGUE 1, CHAPTER 8
Of the fourth ground of the law of England

The fourth ground of the law of England standeth in divers principles that be called in the law maxims, the which have been always taken for law in this realm; so that it is not lawful for any that is learned to deny them; for every one of those maxims is sufficient authority to himself. And which is a maxim, and which not, shall alway be determined by the judges, and not by twelve men. And it needeth not to assign any reason why they were first received for maxims, for it sufficeth that they be not against the law of reason, nor the law of God, and that they have always been taken for a law. And such maxims be not only holden for law, but also other cases like unto them, and all things that necessarily follow upon the same are to be reduced to the like law; and therefore most commonly there be assigned some reasons or considerations why such maxims be reasonable, to the intent that other cases like may the more conveniently be applied to them. And they be of the same strength and effect in the law as statutes be. And though the general customs of the realm be the strength and warrant of the said maxims, as they be of the general customs of the realm; yet because the said general customs be in a manner known through the realm, as well to them that be unlearned as learned, and may lightly be had and known, and that with little study, and the maxims be only known in the king’s courts, or among them that take great study in the law of the realm, and among few other persons; therefore they be set in this writing, for several grounds, and he that listeth may so account them, or if he will, he may take them for no ground, after his pleasure. Of which maxims I shall hereafter shew thee part.

First, There is a maxim that escuage uncertain maketh knight’s service.

Also there is another maxim, that escuage certain makes socage.

Also, that he that holdeth by castle-guard, holdeth by knight’s service, but he holdeth not by escuage: and that he that holdeth by xxs. to the guard of a castle, holdeth by socage.

Also there is a maxim, that a discent taketh away an entry.

Also, that no prescription in lands maketh a right.

Also, that a prescription of rent and profits apprender out of land maketh a right.

Also, that the limitation of a prescription generally taken is from the time that no man’s mind runneth to the contrary.

Also, that assigns may be made upon lands given in fee, for term of life, or for term of years, though no mention be made of assigns; and the same law is of a rent that is granted; but otherwise it is of a warranty, and of a covenant.

Also, that a condition to avoid a freehold cannot be pleaded without deed; but to avoid a gift of chattel, it may be pleaded without deed.

Also, that a release or confirmation made by him, that at the time of the release or confirmation made had no right, is void in the law, though a right come to him after; except it be with warranty, and then it shall bar him to all right that he shall have after the warranty made.

Also, that a right or title of action that only dependeth in action, cannot be given or granted to none other but only to the tenant of the ground, or to him that hath the reversion or remainder of the same land.

Also, that in an action of debt upon a contract, the defendant may wage his law: but otherwise it is upon a lease of lands for term of years, or at will.

Also, that if an exigent, in case of felon, be awarded against a man, he hath thereby forthwith forfeited his goods to the king.

Also, if the son be attainted in the life of the father, and after he purchaseth his charter of pardon of the king, and after the father dieth; in this case the land shall escheat to the lord of the fee, insomuch that though he have a younger brother, yet the land shall not descend to him for by the attainder of the elder brother the blood is corrupt, and the father-in-law died without heir.

Also, if an abbot or prior alien the lands of his house, and dieth; in this case, though his successor have right to the lands, yet he may not enter, but he must take his action that is appointed him by law.

Also, there is a maxim in the law, that if a villein purchase lands, and the lord enter, he shall enjoy the land as his own: but if the villein alien before the lord enter, the alienation is good. And the same law is of goods.

Also, if a man steal goods to the value of twelve pence, or above, it is felony, and he shall die for it. And if it be under the value of twelve pence, then it is but petit larceny, and he shall not die for it, but shall be otherwise punished after the discretion of the judges, except it be taken from the person; for if a man take any thing, how little soever it be, from a man’s person, feloniously, it is called robbery, and he shall die for it.

Also, he that is arraigned upon an indictment of felony, shall be admitted, in favor of life, to challenge thirty-six jurors peremptorily: but if he challenge any above that number, the law taketh him as one that hath refused the law, because he hath refused three whole inquests, and therefore he shall die: but with cause he may challenge as many as he hath cause of challenge to. And farther, it is to be understood, that such peremptory challenge shall not be admitted in appeal, because it is at the suit of the party.

Also, the land of every man is in the law inclosed from other, though it lie in the open field: and therefore if a man do a trespass therein, the writ shall be, Quare clauses fregit.

Also, the rents, commons of pasture, of turbary, reversions, remainders, nor such other things which lie not in manual occupation, may not be given nor granted to none other without writing.

Also, that he that recovereth debt or damages in the king’s courts, by such an action wherein a capias lay in the process, may within a year after the recovery have a capias ad satisfaciendum, to take the body of the defendant, and to commit him to prison till he have paid the debt and damages: but if there lay no capias in the first action, then the plaintiff shall have no capias ad satisfaciendum, but must take a fieri facias, or an elegit within the year, or a scire facias after the year, or within the year, if he will.

Also, if a release or confirmation be made to him that, at the time of the release made, had nothing in the land, etc., the release or confirmation is void, except in certain cases, as to vouch, and certain other which need not here to be remembered.

Also, there is a maxim in the law of England, that the king may disseise no man, nor that no man may disseise the king, ne pull any reversion or remainder out of him.

Also, the king’s excellency is so high in the law, that no freehold may be given to the king, nor be derived from him, but by matter of record.

Also, there was sometime a maxim and a law of England, that no, man should have a writ of right but by special suit to the king, and for a fine to be made in the chancery for it. But these maxims be changed by the statute of magna charter, cap. 16, where it is said thus, nulli negabimus, nuulli vendemus rectum vel justitiam. And by the words, Nulli negabimus, a man shall have a writ of right of course in the chancery without suing to the king for it: and by the words, Nulli vendemus he shall have it without fine. And so many times the old maxims of the law be changed by statutes. Also, though it be reasonable, that for the manifold diversities of actions that be in the laws of England, there should be diversities of process, as in the real actions after one manner, and in personal actions after another manner; yet it cannot be proved merely by reason, that the same process ought to be had, and none other: for by statute it might be altered. And so the ground of the said process is to be referred only to the maxims and customs of the realm.

And I have shewed thee these maxims before rehearsed, not to the intent to shew thee specially what is the cause of the law in them, for that would ask a great respite: but I have shewed them only to the intent that thou mayest perceive that the said maxims, and other like, may be conveniently set for one of the grounds of the laws of England. Moreover there be divers cases whereof I am in doubt whether they be only maxims of the law, or that they be grounded upon the law of reason; wherein I pray thee let me hear thine opinion.

Doct. I pray thee shew those cases that thou meanest; and I shall make thee answer therein as I shall see cause.

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