The Doctor and Student (1518)
Christopher St. Germain
How recoveries in the king’s courts to defeat tailed land stands with conscience
I have heard say, that when a man that is seised of lands in the tail selleth the land, that it is commonly used, that he that buyeth the land, shall, for his surety, and for the avoiding of the tail in that behalf, cause some of his friends to recover the said lands against the said tenant in tail which recovery, as I have been credibly informed, shall be had in this manner. The demandants shall suppose in their writ and declaration, that the tenant had no entry but by such a stranger as the buyer shall list to name and appoint, where indeed the demandants never had possession thereof, nor yet the said stranger. And thereupon the said tenant in tail shall appear in the court, and by assent of the parties shall vouch to warrant one that he knoweth well hath nothing to yield in value. And the vouchee shall appear, and the demandants shall declare against him; and thereupon lie shall take a day to imparl at the same term, and at that day by assent and covin of the parties he shall make default; upon which default, because it is a default in despite of the court, the demandants shall have judgment to recover against the tenant in tail, and he over in value against the vouchee, and this judgment and recovery in value is taken for a bar of the tail for ever. How may it therefore be taken, that the law standeth with conscience, that as it seemeth, alloweth and favoureth such feigned recoveries?
Stud. If the tenant in tail sell the land for a certain sum of money, as is agreed betwixt them, at such a price as is commonly used of other lands, and for the surety of the sale suffereth such a recovery as is aforesaid; what is the cause that moveth thee to doubt whether the said contract, or the recovery made thereupon, for the surety of the buyer that hath truly paid his money for the same, should stand with conscience?
Doct. Two things cause me to doubt therein. One is, for that after our Lord had given the land of behest to Abraham and to his seed, that is to say, to his children, in possession alway to continue, he said to Moses, as it appeareth, Levit. 25, The Land shall not be sold for ever, for it is nine: and then our Lord assigned a certain manner how the land might be redeemed in the year. of Jubilee, if it were sold before. And forasmuch as our Lord would that the land so given to Abraham, and his children, should not be sold for ever, it seemeth that he doth against the ensample of God that alieneth or selleth the land that is given to him and to his children, as lands entailed be given. Another cause is this: It appeareth by the commandment of God, that Thou shalt not covet the house of thy neighbour, etc. And if that concupiscence be prohibited, more stronger than the unlawful taking and withholding thereof is prohibited: and forasmuch as tailed land, when the ancestor is dead, is a thing that of right is belonging to his heir, for that he is heir according to the gift, how may the land with right or conscience be holden from him?
Stud. Notwithstanding the prohibition of Almighty God, whereby the land that was given to Abraham, and to his seed, might not be aliened for ever, yet land within walled towns might lawfully be aliened for ever, except the lands of the Levites, as appeareth in the said 25th chapter of Leviticus. And so it appeareth, that the said prohibition was not general for every place, and that among the Jews. And it appeareth also, that it was given only to Abraham and his children, and so it was not generally to all people. And it appeareth also, that it extended not but only to the land of promission, as it appeareth by the words of the said chapter, where it is said thus, All the region of our possession shall be sold under the condition of redeeming; whereby appeareth that lands in other countries be not bound to that. condition, and as they be not bound to that condition, by the same reason it followeth that they be not bound to the same succession. Therefore that said law, that wills that the land given to Abraham, and to his seed, shall not be sold for ever, bindeth no land out of the land of promission; and some men will say, that sithen the passion of our Lord was promulgate and known, bindeth not there. And to the second reason, which is grounded upon the commandment of God; it must needs be granted that it is not lawful to any man unlawfully to covet the house of his neighbour, and that then more stronger he may not unlawfully take it from him. But then it remaineth for thee yet to prove how in this case this tailed land, that is sold by his ancestor, and whereof a recovery is had recorded in the king’s court; may be said the lands of the heir.
Doct. That may be proved by the law of the realm, that is to say, by the statute of Westm. 2, cap. I, where it is said thus: The will of the giver expressly contained in the deed of his gift shall be from henceforth observed, so that they to whom the tenements be so given shall not have power to alien, but that the lands after their death shall remain to the issue, or return to the donor, if the issue fail. By the which statute it appeareth evidently, that though they, to whom the tenements were so given, aliened them away, that yet nevertheless they in law and conscience, by reason of the said statute, ought to remain to their heirs, according to the gift; for it is holder commonly by all doctors, that the commandments and rules of the law of man, or of a positive law that is lawfully made, bind all that be subjects to the law according to the mind of the maker, and that in the court of conscience.
Stud. Dost thou think that if a man offend against a statute penal, that he offendeth in conscience? Admit that he do it not of a wilful disobedience, or that he will not obey the law: for if he do it of disobedience, I think he offendeth.
Doct. If it be but only a statute that is called Popular, it bindeth not in conscience to the payment of the penalty, till it be recovered by the law, and then it doth bind in conscience: but if a statute be made principally to remedy the hurt of one party, and for that hurt it giveth a penalty to the party, in that case the offender of the statute is bound immediately to restore the damages to the value of the hurt, as it is upon the statute of waste; but the penalty above the hurt he is not bound to pay fill judgment be given, as it is said before. But statutes, by the which it is assigned who shall have right or property to these lands and tenements, or to these goods or chattels, if it be not against the law of God nor against the law of reason, bind all them that be subject to the law in law and conscience. And such a statute is the statute of Westminster 2, whereof we have treated before; wherefore it must be observed by conscience.
Stud. But some hold that the statute of Westm. 2 was made of a singularity and presumption of many that were at the said parliament, for exalting and magnifying of their own blood; and therefore they say that that statute made by such a presumption bindeth not in conscience.
Doct. It is very perilous to judge for certain that the said statute was made of such presumption as thou speakest of: for there be many considerations to prove that the said statute was not made of such presumption, but rather of a very good mind of all the parliament, or at the least of the most part thereof, and for the commonwealth of all the realm; and first in the king, the which in the said parliament was the head, and most chief and principal part of the parliament, (as he is in every parliament) cannot be noted to be such intent: for it is not necessary, nor was it not, then in use, that lands of the crown should be entailed. And in spiritual men, ne yet in certain burgesses and citizens of the said parliament, which at that time had no land, there can be noted no such singularity; nor yet in the noblemen and gentlemen, nor such other as were of the said parliament, and had lands and tenements. It is not good to judge in certain that they did it of such presumption; but it is good and expedient in this case, as it is in other cases that be in doubt, to hold the surer way, and that is; that it was made of charity, to the intent that he, nor the heirs of him to whom the land was given, should not fall into extreme poverty, and thereby haply run into offence against God. And though it were true, as they say, that it was not made of charity, but of presumption and singularity, as they speak of: nevertheless, forasmuch as the statute is not against the law of God, nor against the law of reason, it must be observed by all them that be subjects unto that law. For as John Gerson, in the treatise that he entitled in Latin, De vita spirituali animae, the fourth lesson, and the third corollary, saith, that God wills that makers of laws judge only of outward things, and reserve secret things to him. And so it appeareth that man may not judge of the inward intent of the deed, but of such things as be apparent and certain: but it is not apparent that there was any such corrupt intent in the makers of the said statute: how may it therefore be said that the law is good or rightwise, that not only suffereth such things against the statute, but also against the commandment of God?
Stud. To that some answer and say, that when the land is sold, and a recovery is had thereupon in the king’s court of record, that it sufficeth to bar the tail in conscience; for they say, that as the tail was first ordained by the law, so they say that by the law it is adnulled again.
Doct. Be thou thyself judge, if in that case there be like authority in the making of the tail as there is in the adnulling thereof: for it was ordained by authority of parliament, the which is alway taken for the most high court in this realm before any other, and it is adnulled by a false supposal, for that, that they that be named demandants should have right to the land, where in truth they never had right thereto: whereupon followeth a false supposal in the writ, and a false supposal in the declaration, and a voucher to warrant by covin of such a person as hath nothing to yield in value; and thereupon by covin and collusion of the parties followeth the default of the vouchee, by the which default the judgment shall be given. And so all the judgment is derived and grounded of the untrue supposal and covin of the parties, whereby the law of the realm, that hath ordained such a writ of entry to help them that have rights to lands or tenements, is defrauded, the court is deceived. the heir is disherited, and, as it is to doubt, the buyer and the seller, their heirs and assigns, having knowledge of the tail, be bound to restitution. And verily I have heard many times, that after the law of the realm such recoveries should be no bar to the heir in the tail, if the law of the realm might be therein indifferently heard.
Stud. I cannot see but that after the law of the realm it is a bar of the tail; for when the tenant in tail hath vouched to warranty, and the vouchee hath appeared and entered into the warranty, and after hath made default in despite of the court, whereupon judgment is given for the demandant against the tenant, and for the tenant that he shall recover in value against the vouchee; if the heir in the tail should after bring his formedon, and recover the lands entailed, and after the vouchee purchaseth lands, then should the heir also have execution against him to the value of the lands intailed, as heir to his ancestor that was tenant in the first action, and so he should have his own lands, and also the lands recovered in value. And therefore, because of the presumption that the vouchee may purchase lands after the judgment, some be of opinion that it is in the law a good bar of the tail.
Doct. I suppose that in that case thou hast put that the vouchee may bar the heir in tail of his recovery in value, because he hath recovered the first lands. Nevertheless I will take a respite to be advised of that recovery in value. And if thou canst yet shew me any other consideration, why the said recoveries should stand with conscience, I pray thee let me hear thy conceit therein; for the multitude of the said recoveries is so great, that it were great pity that all should be bound to restitution that have lands by such recoveries, sith there is none (as far as I can hear) disposed them to restore.
Stud. Some men make another reason to prove that the said recoveries should be sufficient by the law to avoid the statute of Westminster, and if they be sufficient thereto, they be sufficient in conscience.
Doct. What is their reason therein?
Stud. In the seventh year of Henry VIII, cap. 4, among other things it is enacted, that all recoverers, their heirs and assigns, may avow and justify for rents, services and customs by them recovered, as they against whom they recovered might have done. And then they say, that when the parliament gave to such recoverers authority to avow and justify for such rents, customs, and services, as they recovered, that the intent of the parliament was, that such recoverers should have right to that for the which they should avow or justify: for else they say that it should be in vain to give them such power, and that the parliament should else be taken in manner as fortifiers of wrongful titles: and so they say that such recoverers, by reason of the said statute, have right by the law.
Doct. That statute, as it seemeth, was made only to give to the recoverers a form to avow and justify, which they had not before, though they had recovered upon a good title. And the cause why they had no form to avow or justify the said statute was, forasmuch as the recoverers did not by the pretence of their action affirm the possession of him or them against whom they recovered, nor claimed not by them, but rather disaffirmed and destroyed their estate. And therefore they cannot alledge any continuance of their title by them, as they may that have rents or services, or such other, of the grant of other by deed or by fine. And therefore, as it seemeth, the most principal intent of the statute was, that such recoverers should avow and justify for rents, services and customs, as they should or might do that had them by fine or deed; not having any respect as it seemeth whether they recovered against tenant in fee simple or in fee-tail; nor whether the recoveries were had upon a rightful title. And therefore, as me seemeth, thee said statute neither affirmeth nor disaffirmeth the title of recoverers, whereby they do avow: for if a man had right before the recovery, the right should remain unto him notwithstanding the said statute; and so me seemeth that the title of them that have the land entailed by such recoveries is nothing fortified nor affirmed by the said statute, but that they are in the same case as they were before. What thinkest thou therein?
Stud. This matter is great; for, as thou sayest, there be so many that have tailed lands by such recoveries, that it were great pity and heaviness to condemn so many persons, and to judge that they all were bound to restitution. For I think there be but few in this realm that have lands of any notable value, but that they or their ancestors, or some other by whom they claim, have had part thereof by such recoveries: insomuch that lords spiritual and temporal, knights, squires, rich men and poor, monasteries, colleges and hospitals have such land, for such recoveries have been used of long time: who may think therefore, without great heaviness, that so many men should be bound to restitution, and that yet, as thou say est, no man disposeth him to make restitution? And so I am in a manner perplexed, and wott not what to say in this case, but that yet I trust that ignorance may excuse many persons in that behalf.
Doct. Ignorance of the deed may excuse, but ignorance of the law excuseth not,. but it be invincible, that is to say, that they have done that in them is to know the truth: as to counsel with learned men, and to ask them what the law is in that behalf; and if they answer them that they may do this or that lawfully, then they be thereby excused in conscience; but yet in man’s law they be not thereby discharged: but they that have taken upon them to have knowledge of the law, be not excused by ignorance of the law; ne no more are they that have a wilful ignorance, and that would rather be ignorant than to know the truth, and therefore they will not dispose them to ask. any counsel in it. And if it be of a thing that is against the law of God, or the law of reason, no man shall be excused of ignorance; and so there be but few that be excused by ignorance.
Stud. What then? Shall we condemn so many and so notable men?
Doct. We shall not condemn them, but we shall give them their peril.
Stud. Yet I trust their danger is not so great that they should be bound to restitution: for John Gerson saith in his. said book called “De unitate ecclesiastica, consideratione secunda,” Quod communis error facit jus, that is to say, A common error maketh a right. Of which words, as it seemeth, some trust may be had, that though it were fully admitted the said recoveries were first had upon an unlawful ground, and against the good order of conscience, that yet nevertheless, forasmuch as they have been used of long time, so that they have been taken of divers men that have been right well learned, in manner as for a law, that the buyers partly be excused, so that they be not bound to restitution. And moreover, it is certain that the statute of Westminster 2, nor none other statute made by man, cannot be of greater value or strength than was the bond of matrimony that was ordained of God. And though that bond of matrimony was indissolvable, yet nevertheless Moses suffered a bill of refusal of the Jews, which in Latin is called Libellumn repudii, and so they might thereby forsake their wives, as it appeareth Deut. 22. And therefore like as a dispensation was suffered against that bond, so it seemeth it may be against this statute.
Doct. As to that reason that thou hast last made of a bill of refusal, let all purchasers of land hear what our Lord saith in the Gospel of the Jews, of that bill of refusal; Matthew 19, where he saith thus, For the hardness of your hearts Moses suffered you to leave your wives: for at the beginning it was not so. Of which words doctors hold commonly, that though such a bill of refusal was lawful, so that they that refused their wives thereby should be without pain in the law, that yet it was never lawful so that it should be without sin. And so likewise it may be said in this case, that such recoveries be suffered for the hardness of the hearts of Englishmen, which, desire land and possession with so great greediness, that they can not be withdrawn from it neither by the law of God, nor of the realm. And therefore the rich men should not take the possessions of poor men from them by power, without colour of title, that is to say, neither by open disseisin, or by the only sale of the tenant in tail, and so to hold them against the express words of the statute; such recoveries have been suffered. And though for their great multitude they may haply be without pain as to the law of the realm; yet it is to fear that they be not without offence as against God. And as to the other reason, that a common error should make a right, those words, as me seemeth, be to be thus understood, that a custom used against the law of man shall be taken in some countries for law, if the people be suffered so to continue. And yet some men call such a custom an error, because that the continuance of that custom against the law was partly an error in the people, for that they would not obey the law that was made by their superiors to the contrary of that custom. But it is to be understood, that the said recoveries, though they have been long used, may not be taken to have the strength of a custom; for many, as well learned as unlearned, have always spoken against them and yet do. And furthermore, as I have heard say, a custom or prescription in this realm against the statutes of the realm prevails not in the law.
Stud. Though a custom in this realm prevaileth not against a statute as to the law, yet it seemeth that it may prevail against the statute in conscience: for though ignorance of a statute excuseth not in the law, nevertheless it may excuse in conscience; and so it seemeth that it may do of a custom.
Doct. But if such recoveries cannot be brought into a lawful custom in the law, it seemeth they may not be brought into a custom in conscience; for conscience must alway be grounded upon the law, and in this case it cannot be grounded upon the law of reason, nor upon the law, of God and therefore if the law of man serve not, there is no ground whereupon conscience in this case may be grounded. And at the beginning of such recoveries, they were taken to be good, because the law should warrant them to be good, and not by reason of any custom: and so if the reason of the law will not serve in the recoveries, the custom cannot help; for an evil custom is to be put away. And therefore me seemeth that the recoveries be not without offence against God, though haply for their great multitude, and that there should not be as it were a subversion of the inheritance of many in this realm, as well of spiritual as temporal, they be without pain in the law of the realm; except such recoveries as by the common course of the law be voidable in the law by reason of some use, or of some other special matter: but what pain that is, I will not temerously judge, but commit it to the goodness of our Lord, whose judgment be very deep and profound: nor I will not fully affirm that they that have lands by such recoveries ought to be compelled to restitution: but this seemeth to me to be good counsel, that every man hereafter hold that is certain, and leave that is uncertain, and that is, that he keep himself from such recoveries, and then he shall be free from all scrupulousness of conscience in that behalf.
Stud. It seemeth that in this question thou ponderest greatly the said statute of Westminster 2, and that though it be but only a law made by man, that yet, forasmuch as it is not against the law of reason nor the law of God, thou thinkest that it must be holden in conscience: and over that, as it seemeth, thou art somewhat in doubt whether those recoveries be any bar to the heir in the tail by the law of the realm, unless that he have in value in deed upon the vouchee; and that thou wilt thereupon take a respite, or thou shew thy full mind therein: and in likewise thou thinkest, as I take it, that those recoveries cannot be brought into a custom, but that the longer that they be suffered to continue, if they be not good by the law, the greater is the offence against God. And therefore thou ponderest little that custom, but yet thou agreest that it is good to spare the multitude of them that be past, lest a subversion of the inheritance of many of this realm might follow, and great strife and variance also, if they should be adnulled for the time past, except there be any other special cause to avoid them by the law, as thou hast touched in the last reason but thou thinkest that it were good, that from henceforth such recoveries should be clearly prohibited, and not be suffered to be had in use, as they have been before; and thou counsellest all men therefore to refrain themselves from such recoveries hereafter.
Doct. Thou takest well that I have said, and according as I have meant it.
Stud. Now, I pray thee, sith I have heard thy question of these recoveries, according to thy desire, that thou wouldest answer me to some particular questions concerning tailed lands, whereof thou hast at this time given us occasion to speak.
Doct. Shew me these questions, and I will shew thee my mind therein with good-will.