The Doctor and Student (1518)
Christopher St. Germain
Divers cases wherein the student doubteth whether they be only maxims of the law, or that they be grounded upon the law of reason
The law of England is, that if a man command another to do a trespass, and he doth it, that the commander is a trespasser. And I am in doubt, whether that it be only by a maxim of the law, or that it be by the law of reason. Also, I am in doubt upon what law it is grounded, that the accessary shall not be put to answer before the principal, etc.
Also, the law is, that if an abbot buy a thing that cometh to the use of the house, and dieth, that his successor shall be charged. And I am somewhat in doubt upon what ground that law dependeth.
Also, that he that hath possession of land, tho’ it be by disseisin, hath right against all men but against him that hath right.
Also, that if an action real be sued against any man that hath nothing in the thing demanded, the writ shall abate at the common law.
Also, that by the alienation of the tenant, hanging the writ, or his entry into religion, or if he be made a knight, or if she be a woman, and take an husband hanging the writ, that the writ shall not abate.
Also, if land and rent that is going out of the same land, come into one man’s hand of like estate, and like surety of title, the rent is extinct.
Also, if land descend to him that hath right to the same land before, he shall be remitted to his better title, if he will.
Also, if two titles be concurrent together, that the eldest title shall be preferred.
Also, that every man is bound to make recompence for such hurt as his beasts shall do in the corn or grass of his, neighbour, though he know not that they were there.
Also, if the demandant or plaintiff, hanging his writ, will enter into the thing demanded, his writ shall abate. And it is many times very hard and of great difficulty to know what cases of the law of England be grounded upon the law of reason, and what upon custom of the realm; and though it be hard to discuss it, it is very necessary to be known, for the knowledge of the perfect reason of the law. And if any man think that these cases before rehearsed be grounded upon the law of reason, then he may refer them to the first ground of the law of England, which is the law of reason, whereof is made mention in the fifth chapter. And if any man think that they be grounded upon the law of custom, then he may refer them to the maxims of the law, which be assigned for the fourth ground of the law of England, whereof mention is made in the eighth chapter, as before appeareth.
Doct. But I pray thee shew me by what authority it is proved in the laws of England that the cases which thou hast put before in the eighth chapter, and such other which thou callest maxims, ought not to be denied, but ought to be taken as maxims. For sith they cannot be proved by reason, as thou agreest thyself they cannot, they may as lightly be denied as affirmed, unless there be some sufficient authority to approve them.
Stud. Many of the customs and maxims of the laws of England be known by the use and the custom of the realm so apparently that it needeth not to have any law written thereof. For what needeth it to have any law written that the eldest son shall inherit his father, or that all the daughters shall inherit together as one heir, if there be no son: or that the husband shall have the goods and chattels of his wife that she hath at the time of the espousals, or after or that a bastard shall not inherit as heir; or the executors shall have the disposition of all the goods of their testator; and if there be no executors, that the ordinary shall have it, and the heir shall not meddle with the goods of his ancestor, but if any particular customs help him?
The other maxims and customs of the law that be not so openly known among the people may be known partly by the law of reason, and partly by the books of the laws of England, called Years and Terms, and partly by divers records remaining in the king’s courts, and in the treasury, and specially by a book called the Register, and also by divers statutes, wherein many of the said customs and maxims be oft recited, as to a diligent searcher will evidently appear.