The Doctor and Student (1518)
Christopher St. Germain
Of what law this question is to be understood; that is to say, where conscience shall be ruled after the law
The law whereof mention is made in this question, that is to say, where conscience shall be ruled by the law, is, not, as me seemeth, to be understood only of the law of reason, and of the law of God, but also of the law of man, that is not contrary to the law of reason, nor the law of God, but it is superadded unto them for the better ordering of the commonwealth: for such a law of man is always to be set as a rule in conscience, so that it is not lawful for a man to frame it on the one side, neon the other: for such a law of man hath not only the strength of man’s law, but also the law of reason, or of the law of God, whereof it is derived. For laws made by men, which have received of God power to make laws, be made by God. And therefore conscience must be ordered by the law, as it must be upon the law of God and upon the law of reason. And furthermore, the law whereof mention is made in the latter end of the chapter next before, that is to say, in the question wherein it is asked where the law is to be left and forsaken for conscience, is not to be understood of the law of reason. nor of the law of God; for those two laws may not be left. Nor is it not to be understood of the law of man that is made in particular cases, and that is consonant to the law of reason, and to the law of God, that yet that law should be left for conscience: for of such a law made by man, conscience must be ruled, as it is said before. Nor it is not to be understood of a law made by man commanding or prohibiting any thing to be done that is against the law of reason or the law of God. For if any law made by him, bind any person to any thing that is against the said laws, it is no law, but a corruption, and manifest error. Therefore, after them that be learned in the laws of England, the said question, that is to say, where the law is to be left for conscience, and where not, is to be understood in divers manners, and after divers rules, as hereafter shall somewhat be touched.
First, Many unlearned persons believe that it is lawful for them to do with good conscience all things, which if they do them, they shall not be punished therefore by the law, though the law doth not warrant them to do that they do, but only, when it is done, doth not for some reasonable consideration punish them that do it, but leaveth it only to his conscience. And therefore many persons do ofttimes that they should not, and keep as their own that that in conscience they ought to restore. Wherefore there is the law of England in this case.
If two men have a wood jointly, and the one of them selleth the wood, and keepeth all the money wholly to himself; in this case his fellow shall have no remedy against him by law: for as they, when they took the wood jointly, put each other in trust, and were content to occupy together: so the law suffereth them to order the profits thereof according to the trust that each of them put the other in. And yet if one took all the profits, he is bound in conscience to restore the half to his fellow: for, as the law giveth him right only to half the land, so it giveth him right only in conscience to half the profits. And yet nevertheless, it cannot be said in that case, that the law is against conscience, for the law never willeth, ne commandeth that one should take all the profits, but leaveth it to their conscience; so that no default can be found in the law, but in him that taketh all the profits to himself may be assigned default, who is bound in conscience to reform it, if he will save his soul, though he cannot be compelled thereto by the law. And therefore in this case, and other like, that opinion which some have, that they may do with conscience all, that they shall not be punished for by the law if they do it, it is to be left for conscience; but the law is not to be left for conscience.
Also many men think, that if a man have land that another hath title to, if he that hath the right shall not, by the action that is given him by the law to recover his right by, recover damages, that then he that hath the land is also discharged of damages in conscience; and that is a great error in conscience; for though he cannot be compelled to, yield the damages by no man’s law, yet he is compelled thereto by the law of reason, and by the law of God, whereby we be bound to do as we would be done to, and that we should not covet our neighbour’s goods. And therefore if tenant in tail be disseised, and the disseisor dieth seised, and then the heir in the tail bringeth a formedon, and recovereth the land, and no damages, for the law giveth him no damage in that case; yet the tenant by conscience is bound to yield damages to the heir in tail from the death of his ancestor. Also it is taken by some men, that the law must be left for conscience, where the law doth not suffer a man to deny that he hath before affirmed in court of record, or for that he hath wilfully excluded himself thereof for some other cause: as if the daughter that is, only heir to her father will sue livery with her sister that is a bastard, in that case he shall not be received to say that her sister is a bastard; insomuch that if her sister take half the land with her, there is no remedy against her by the law. And no more there is of diversity in other estopples, which were too long to rehearse now. And yet the party that may take advantage by such an estopple, by the law, is bound in conscience to forsake that advantage, especially if he were so estopped by ignorance, and not by his own knowledge and assent. For though the law in such cases giveth no remedy to him that is estopped, yet the law judgeth not that the other hath right unto the thing that is in variance betwixt them.
And it is to be understood, that the law is to be left for conscience, where a thing is tried and found by verdict against the truth; for in the common law the judgment must be given according as it is pleaded and tried, like as it is in other laws, that the judgment. must be given according to that that is pleaded and proved. And it is to be understood, that the law is to be left for conscience, where the cause of the law doth cease: for when the cause of the law doth cease, the law also doth cease in conscience, as appeareth by this case hereafter following.
A man maketh a lease for term of life, and after a stranger doth waste: wherefore the lessee bringeth an action of trespass, and hath judgment to recover damages, having regard to the treble damages that he shall yield to him in the reversion: and after he in the reversion, before action of waste sued, dieth, so that the action of waste is thereby extincted: then the tenant for term of life, though he may sue execution of the said judgment by the law, yet he may do it by conscience; for in conscience he may take no more than lie is hurted by the said trespass, because he is not charged over with treble damages to his lessor. Also, it is to be understood, where a law is grounded upon a presumption, if the presumption be untrue, then the law is not to be holden in conscience. And now I have spewed thee somewhat of the question, that is to say, where the law shall be ruled after conscience, I pray thee shew me whether there be not like diversities in other laws, betwixt law and conscience.
Doct. Yes, verily, very many, whereof thou hast recited one before, where a thing that is untrue is pleaded and proved; in which case judgment must be given according, as well in the law civil as in the law canon. And another case is, that if the heir make not his inventory, he shall be bound after the law civil to all the debts, though the goods amount not to so much: and the law canon is not against that law, and yet in conscience, the heir, which in the laws of England is called an executor, is not in that case charged with the debts, but according to the value of the goods. And now I pray thee shew me some cases where conscience shall be ruled after law.
Stud. I will with good-will shew thee somewhat as methinketh therein.