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The Doctor and Student (1518)
Christopher St. Germain
The sixth question of the student concerning tailed lands
If tenant in tail be disseised, and die, and an ancestor collateral to the heir in tail release with a warranty, and die, and the warranty descendeth upon the heir in the tail; whether is he thereby barred in conscience, as he is in the law?
Doct. Because your principal intent at this time is to speak of recoveries, and not of warranties, and also because it hath been of long time taken for a principal maxim, of the law, that it should be a bar to the heirs as well that claim by a fee-simple as by state-tail, and for that also that it was not put away by the said stat. of Westm. 2, which ordained the tail; I will not at this time make thee an answer therein, but will take a respite to be advised.
Stud. Then, I pray thee, yet, or we depart, shew me what was the most principal cause that moved thee to move this question of recoveries had of tailed lands.
Doct. This moved me thereto: I have perceived many times that there be many and divers opinions of these recoveries, whether they stand with conscience or not, and that it is to doubt that many persons run into offence of conscience thereby; and therefore I thought to feel thy mind in them, whether I could perceive that it were clear that they served to break the tail in law and conscience, or that it were clearly against conscience so to break the tail, or that it were a matter in doubt; and if it appeared a matter in doubt, or that it appeared that the matter were used clearly against conscience, then I thought to do somewhat to make the matter appear as it is, to the intent that they that have the rule and charge over the people, as well the spiritual men as temporal men, should the rather endeavour them to see it reformed, for the commonwealth of the people, as well in body as in soul. For when anything is used to the displeasure of God, it hurteth not only the body, but also the soul: and temporal rulers have not only cure of the bodies, but also of the souls, and shall answer for them if they perish in their default. And because it seemeth by the more apparentt reason that the tails be not broken, ne fully avoided, by the said recoveries, and that yet nevertheless the great multitude of them that be passed is right much to be pondered: therefore it were very good to prohibit them for time to come, to put away such ambiguities and doubts as arise now by occasion of the said recoveries, and so they be put as snares to deceive the people, and so will they be as long as they be suffered to continue. And methinketh verily that it were therefore right expedient, that tailed lands should from henceforth either be made so strong in the law that the tail should not be broken by recovery, fine with proclamation, collateral warranty, nor otherwise; or else that all tails should be made fee-simple, so that every man that list to sell his land, may sell it by his bare feoffment, and without any scruple or grudge of Conscience: and then there should not be so great expences in the law, nor so great variance among the people, ne yet so great offence of conscience as there is now in many persons.
Stud. Verily methinketh that thy opinion is right good and charitable in this behalf, and that the rulers be bound in conscience to look upon it, to see it reformed and brought into good order. And verily, by that thou hast said therein, thou hast brought me into remembrance, that there be divers like snares concerning spiritual matters suffered among the people, whereby I doubt that many spiritual rulers be in great offence against God. As it is of the point that spiritual men have spoke so much of, that priests should not be put to answer before laymen, especially of felonies and murders; and of the statute of 45 E. 3, cap. 3, where it is said that a prohibition shall lie where a man is sued in the spiritual court for tithe of wood that is above the age of twenty years, by the name of Sylva caedua, as it was done before; and they have in open sermons, and in divers other open communications and counsels, caused it to be openly notified and known, that they should be all accursed that put priests to answer, or that maintain the said statute, or any other like to it. And after, when they, have right well perceived that, notwithstanding all that they have done therein, it hath been used in the same points through all the realm in like manner as it was before, then they have sat still and let the matter pass; and so when they have brought many persons in great danger, but most specially them that have given credence to their saying, and yet by reason of the old custom have done as they did before, then there they left them. But verily it is to fear, that there is to themselves right great offence thereby, that is to say, to see so many in so great danger as they say they be, and to do no more to bring them out of it, than they have done for it. If it be true, as they say, they
ought to stick to it with effect in all charity, till it were reformed: and if be not as they say, then they have caused many to offend that have given credence to them, and yet contrary to their own conscience do as they did before, and that percase should not have offended if such sayings had not been. And so it seemeth that they have in these matters done either too much or too little.
And I beseech Almighty God, that some good man may so call upon all these matters that we have now communed of, so that they that be in authority may somewhat ponder them, and to order them in such manner, that offence of conscience grow not so lightly thereby hereafter as it hath done in times past. And verily He that on the cross knew the price of man’s soul, will hereafter ask a right strait accompt of rulers for every soul that is under them, and that shall perish through their default.
Thus I have shewn unto thee, in this little dialogue, how the law of England is grounded upon the law of reason, the law of God, the general customs of the realm, and upon certain principles that be called maxims, upon the particular customs used in divers cities and countries, and upon statutes which have been made in divers parliaments by our sovereign lord the king, and his progenitors, and by the lords spiritual and temporal, and all the commons of the realm. And I have also shewed thee in the 9th chapter of this book, under what manner the said general customs and maxims of the law may be proved and affirmed, if they were denied: and divers other things be contained in this present dialogue, which will appear in the table that is in the latter end in the book, as to the readers will appear. And in the end of the said dialogue I have at thy desire shewed thee my conceit concerning recoveries of tailed lands, and thou hast upon the said recoveries shewn me thine opinion. And I beseech our Lord set them shortly in a good clear way: for surely it will be right expedient for the well-ordering of conscience in many persons, that they be so. And thus the God of peace and love be alway with us. Amen.