The Doctor and Student (1518)
Christopher St. Germain
The second question of the student whether conscience is ordered after the law
If a man that hath lands for term of life be impanelled upon an inquest, and thereupon leeseth issues and dieth; whether may those issues be levied upon him in the reversion in conscience, as they may be by the law?
Doct. If they may be levied by the law, what is the cause why thou dost doubt whether they may be levied by conscience?
Stud. For there is a maxim in the laws of England, that where two titles run together, the eldest title shall be preferred. And in this case the title of him in the reversion is before the title of the forfeiture of the issues. And therefore I doubt somewhat whether they may be lawfully levied.
Doct. By that reason it seemeth thou art in doubt what the law is in this case; but that must necessarily be known, for else it were in vain to argue what conscience will therein.
Stud. It is certain that the law is such; and so it is like wise if the husband forfeit issues, and die, those issues shall be levied on the lands of the wife.
Doct. And if the law be such, it seemeth that conscience is so in like wise: for sith it is the law, that for execution of justice every man shall be impanelled when need requireth; it seemeth reasonable, that if he will not appear, that he should have some punishment for his not appearance, for else the law should be clearly frustrate in that point. And the pain, as I have heard, is, that he shall lose issues to the king for his not appearance. Wherefore it seemeth not inconvenient, nor against conscience, though the law be, that those issues shall be levied of him in the reversion, for that the condition was secretly understood in the law to pass with the lease, when the lease was made. And therefore it is for the lessor to beware, and to prevent the danger at the making of the lease, or else it shall be adjudged his own default. And then this particular maxim, whereby such issues shall be levied upon him in the reversion, is a particular exception in the law of England, from the general maxim that thou hast remembered before, that is to say, that where two titles run together, that the eldest title shall be preferred; and so in this case the general maxim in the point shall hold no place, neither in law nor in conscience, for by this particular maxim the strength of the general maxim is restrained to every intent, that is to say, as well in law as in conscience.