The Doctor and Student (1518)

Christopher St. Germain

The fourth question of the student, whether a man may be of counsel

Stud. If he that is the very heir be certified by the ordinary, bastard, end after bring an action as heir against another person, whether may any man, knowing the truth, be of counsel with the tenant, and plead the said certificate against the demandant by conscience or not?

Doct. Is the law in this case, that all other against whom, the demandant hath title shall take advantage of this certificate, as well as he at whose suit lie is certified bastard?

Stud. Yea verily, and that for two causes, whereof the one is this. There is an old maxim in the law, that a mischief shall be rather suffered than an inconvenience and then in this case if another writ should afterward be, sent to another bishop in another action, to certify whether he were a bastard or not peradventure the bishop would certify that he were mulier, that is to say, lawfully begotten, and then he should recover as heir: and so he should in one self court be taken as mulier and bastard. For avoiding of which contrariosity, the law will suffer no more writs to go forth in that case, and suffereth also all men to, take advantage of the certificate, rather than to suffer such a contradiction in the court, which in the law is called an inconvenience. And the other cause is, because, this certificate of the bishop is the highest trial that is in the law in this behalf: but this is not understood but where bastardy is laid in one that is party to the writ; for if bastardy be laid-in one that is a stranger to the writ, as if vouchee pray in aid for such other, then that bastardy shall he tried by twelve men, by which trial he in whom the bastardy is laid shall not be concluded, because he is not privy to the trial, and may have no attaint; but he that is party to the issue may have attaint, and therefore he shall be concluded, and none other but he. And forasmuch as the said maxim was ordained to eschew an inconvenience (as before appeareth) it seemeth that every man learned may with conscience plead the said certificate for avoiding thereof, and give counsel therein to the party according unto the law, or else the said inconvenience must needs follow. But yet nevertheless I do not mean thereby, that the party may after, when he hath barred the demandant by the said certificate, retain the land in conscience by reason of the said certificate: for though there be no law to compel him to restore it, yet I think well that he in conscience is bound to restore it, if lie knew that the demandant is the very true heir, whereof I have put divers cases like in the seventeenth chapter of our first dialogue in Latin. But my intent is, that a man learned in the law, in this case, and other like, may with conscience give his counsel according to the law, in avoiding of such things as the law thinketh should for a reasonable cause be eschewed.

Doct. Though he that doth not know whether he be a bastard or not may give his counsel, and also plead the said certificate; yet I think that he that doth know himself to be the very true heir may not plead it: and that is for two causes, whereof the one is this: every man is bound by the law of reason to do as he would be done to: but I think that if he that pleadeth that certificate were in like case, lie would think that no man, knowing the certificate to be untrue, might with conscience plead it against him, wherefore no more may he plead it against none other. The other cause is this: Although the certificate be pleaded, yet is the tenant bounden in conscience to make restitution thereof, as thou hast said thyself; and then in case that he would not make restitution, then he that pleadeth the plea should run thereby in Like offence, for he hath holpen to set the other man in such a liberty, that he may chose whether he will restore the land or not; and so he should put himself to jeopardy of another man’s conscience. And it is written, Eccl. 3, Qui amat Periculum Peribit in illo, that is, He that wilfully will put himself in jeopardy to offend, shall perish therein. And therefore it is the surest way, to eschew perils, for him that knoweth that he is heir, not to plead it. And as for the inconvenience that thou sayest must needs, follow, but the certificate be pleaded as to that it may be answered, that it may be pleaded by some other that knoweth not that heis very heir: and if the case be so far put, that there is none other learned there but he, then methinketh that he shall rather suffer the said inconvenience, than to hurt his own conscience; for always charity beginneth at himself, and so every man ought to suffer ail other offences rather than himself would offend. And now
that thou knowest mine opinion in this case, I pray thee proceed to another question.