The Doctor and Student (1518)
Christopher St. Germain
Divers cases where conscience is to be ordered after the law
The eldest son shall have and enjoy his father’s lands at the common law in conscience, as he shall in the law. And in Burgh-english the younger son shall enjoy the inheritance, and that in conscience. And in Gavelkind all the sons shall inherit the land together, as daughters, at the common law; and that in conscience. And there can be no other cause assigned why conscience in the first case is with the eldest brother, and in the second with the younger brother, and in the third case with all the brethren; but because the law of England, by reason of divers customs, doth sometime give the land wholly to the eldest son, sometime to the youngest, and sometime to all. Also if a man of his mere motion make a feoffment of two acres of land lying in two several shires, and maketh livery of seisin in the one acre in the name of both; in this case the feoffee hath right but only in the acre whereof livery of seisin was made, because he hath no title by the law: but if both acres had been in one shire, he had had good right to both. And in these cases the diversity of the law maketh the diversity of conscience.
Also, if a man of his mere motion make a feoffment of a manor, and saith not, to have and to hold, etc., with the appurtenances; in that case the feoffee hath right to the demesne lands, and to the rents, if there be atturnments, and to the common pertaining to the manor; but he hath neither right to the advowsons, appendant, if any be, nor to the villeins regardant. But if this term, with the appurtenances, had been in the deed, the feoffee had right in conscience, as well to the advowsons and villeins, as to the residue of the manor. But if the king, of his mere motion, give a manor with the appurtenances, yet the donee hath neither right in law nor conscience to the advowsons nor villeins. And the diversity of the law, in these cases, makes the diversity of conscience.
Also, if a man make a lease for a term of years, yielding to him and to his heirs a certain rent, upon condition that if the rent be behind by forty days, etc., that then it shall be lawful to the lessor and his heirs to re-enter; and after the rent is behind, the lessor asketh the rent according to the law, and it is not payed, the lessor dieth, his heir entereth; in this case his entry is lawful both in law and conscience. But if the lessor had died before he had demanded the rent, and his heir demand the rent, and because it is not payed, he re-entereth; in that case his re-entry is not lawful neither in law nor conscience.
Also, if the tenant in dower sow her land, and die before the corn is ripe; the corn in conscience belongeth to her executors, and not to him in reversion: but otherwise it is in conscience of grass and fruits. And the diversity of the law maketh there also the diversity in conscience.
Also, if a man seized of lands in his demesne as of fee bequeath the same by his last will to another, and to his heirs, and dieth; in this case the heir, notwithstanding the Will, hath a right to the land in conscience. And the reason is, because the law judgeth that will to be void; and as, it is void in the law, so it is void in conscience.
Also, if a man grant a rent for term of life, and make a lease of land to the same grantee for term of life, and the tenant alieneth both in fee; in this case he in the reversion hath good title to the land both in law and conscience, and not to the rent. And the reason is, because the land by the alienation is forfeited by the law to him in the reversion, and not the rent.
Also, if lands be given to two men, and to a woman in fee, and after one of the men enter-marrieth with the woman, and alieneth the land, and dieth; in this case the woman hath right but only to the third part: but if the man and the woman had been married together before the first feoffment, then the woman, notwithstanding the alienation of her husband, should have had right in law and conscience to the one half of the land. And so in these two cases conscience doth follow the law of the realm. Also, if a man have two sons, one before espousals, and another after espousals, and after the father dieth seised of certain lands; in this case the younger son shall enjoy the lands in this realm, as heir to his father both in law and conscience. And the cause is, because that son born after espousals is by the law of this realm the very heir, and the elder son is a bastard. And of these cases, and many other like in the laws of England, may be formed the syllogism of conscience, or the true judgment of conscience, in this manner. Sinderesis ministreth the major thus, Right wiseness is to be done to every man: upon which major the law of England ministereth the minor thus, The inheritance belongeth to the son born after espousals, and not to the son born before espousals: then conscience maketh the conclusion, and saith, Therefore the inheritance is in conscience to be given to the son born after espousals. And so in other cases infinite may be formed by the law, the syllogism or the right judgment of conscience, wherefore they that be learned in the law of the realm say, that in every case where any law is ordained for the disposition of lands and goods, which is not against the law of God, nor yet against the law of reason, that the law bindeth all them that be under the law in the court of conscience, that is to say, inwardly in his soul. And therefore it is somewhat to marvel, that spiritual men have not endeavored themselves in time past to have more knowledge of the king’s laws than they have done, or than they yet do: for by the ignorance thereof they be ofttimes ignorant of that that should order them according to right and justice, as well concerning themselves, as other that come to them for counsel. And now, forasmuch as I have answered to thy questions as well as I can; I pray thee that thou wilt shew me thy opinion in divers cases formed upon the law of England, wherein I am in doubt what is to be holden therein in conscience.
Doct. Shew me thy questions, and I will say as me thinketh therein.