The Doctor and Student (1518)

Christopher St. Germain

The first question of the student whether conscience is ordered after the law

Stud. If any infant that is of the age of twenty years, and hath reason and wisdom to govern himself, selleth his land, and with the money thereof buyeth other land of greater value than the first was, and taketh the profits thereof; whether .may the infant ask his first land again in conscience, as he may by the law.

Doct. What thinkest thou in that question?

Stud. Me seemeth, that, forasmuch as the law of England in this article is grounded upon a presumption, that is to say, that infants commonly afore they be of the age of twenty-one years be not able to govern themselves, that yet, forasmuch as that presumption faileth in this infant, that he may not in this case with conscience ask the land again that he hath sold to his great advantage, as before appeareth.

Doct. Is not this sale of the infant, and the feoffment made thereupon, if any where, voidable in the law?

Stud. Yes, verily.

Doct. And if the feoffee have no right by the bargain, nor by the feoffment made thereupon, whereby should he then have right thereto, as thou thinkest?

Stud. By conscience, as me thinketh, for the reason that I have made before.

Doct. And upon what law should that conscience be grounded that thou speakest of? for it cannot be grounded by the law of the realm, as thou hast said thyself. And methinketh, that it cannot be grounded upon the law of God, nor upon the law of reason: for feoffments nor contracts be not grounded upon neither of those laws, but upon, the law of man.

Stud. After the law of property was ordained, the people might not conveniently live together without contracts; and therefore it seemeth that contracts be grounded upon the law of reason, or at least upon the law that is called Jus gentium.

Doct. Though contracts be grounded upon the law that is called Jus gentium, because they be so necessary, and so general among all people; yet that proveth not that contracts be grounded upon the law of reason: for though the law called Jus gentium be much necessary for the people, yet it may be changed. And therefore if it were ordained by statute, that there should be no sale of land, ne no contract of goods, and if there were, that it should be void, so that every man should continue still seized of his lands, and possessed of his goods; the statute were good. And then if a man against that statute sold his land for a sum of money, yet the seller might lawfully retain his land according to the statute: and then he were bound to no more but to repay the money that he received, with reasonable expences in that behalf. And so in like wise me thinketh that in this case the infant may with good conscience re-enter into his first land; because the contract after the maxims of the law of the realm is void; for, as I have heard, the maxims of the law be of as great strength in the law; as statutes. And some think that in this case the infant is bound to no more, but only to re-pay the money to him that he sold his land unto, with such reasonable cost and charges as he hath sustained by reason of the same. But if a man sell his land by a sufficient and lawful contract, though there lack livery of seisin or such other solemnities of the law, yet the seller is bound in conscience to perform the contract. But in this case the contract is sufficient, and so me thinketh great diversity betwixt the cases.

Stud. For this time I hold me contented with thy opinion.