The Doctor and Student (1518)

Christopher St. Germain

The first question of the doctor, of the law of England and conscience

I have heard say that if a man that is bound in an obligation pay the money, but he taketh no acquittance, or if he take one, and it happeneth him to leese it, that, in that case, he shall be compelled by the laws of England to pay the money again. And how may it be said then that that law standeth with reason and conscience? For as it is grounded upon the law of reason that debts ought of right to be payed, so it is grounded upon the law of reason (as it seemeth) that when they be payed, that he that payed them should be discharged.

Stud. First, Thou shalt understand that it is not the law of England that if a man that is bound in an obligation pay the money without acquittance, or if he take ac quittance and leese it, that therefore the law determineth that he ought of right to pay the money eftsoons, for that law were both against reason and conscience. But though it is so, that there is a general maxim in the law of England that in an action of debt sued upon an obligation the defendant shall not plead that he oweth not the money, ne can in no wise discharge himself in that action, but he have acquittance, or some other writing sufficient in the law, or some other thing like, witnessing that he hath paid the money; that is ordained by the law to avoid a great inconvenience that else might happen to come to many people; that is to say, that every man by a nude parole and by a bare averment should avoid an obligation. Wherefore, to avoid that inconvenience, the law hath ordained, that as the defendant is charged by a sufficient writing, that so he must be discharged by sufficient writing or by some other thing of as high authority as the obligation is. And though it may follow thereupon that, in some particular case, a man by occasion of that general maxim may be compelled to pay the money again that he payed before; yet, nevertheless, no default can be thereof assigned in the law. For like as makers of law take heed to such things as may oft fall, and do much hurt among the people, rather than to particular cases: so in likewise the general grounds of the law of England heed more what is good for many than what is good for one singular person only. And because it should be a hurt to many, if an obligation should be so lightly avoided by word; therefore the law especially preventeth that hurt under such manner as before appeareth; and yet intendeth not, nor commandeth not, that the money of right ought to be paid again, but setteth a general rule, which is good and necessary to all the people, and that every man may well keep, without it be through his own default. And if such default happen in any person, whereby he is without remedy at the common law, yet he may be holpen by a subpoena; and so he may in many other cases where conscience serveth for him, that were too long to rehearse now.

Doct. But I pray thee show me under what manner a man may be holpen by conscience; and whether he shall be holpen in the same court, or in another.

Stud. Because it cannot be well declared where a man shall be holpen by conscience, and where not, but it be first known what conscience is, therefore, because it pertaineth to thee most properly to treat of the nature and quality of conscience, therefore I pray thee that thou wilt make me some brief declaration of the nature and quality of conscience, and then I shall answer to thy question as well as I can.

Doct. I will with good-will do as thou sayest: and to the intent that thou mayest the better understand that I shall say of conscience, I shall first shew thee what sinderesis is, and then what reason is, and then what conscience is; and how these three differ among themselves, I shall somewhat touch.