The Doctor and Student (1518)

Christopher St. Germain

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

Stud. Whether may a man with conscience be of counsel with the plaintiff in action at the common law, knowing that the defendant hath sufficient matter in conscience whereby he may be discharged by a subpoena in the chancery, which he cannot plead at the common law, or not?

Doct. I pray thee put a case, thereof in certain, for else the question is very general.

Stud. I will put the same case that thou puttest in our first dialogue in Latin, the twelfth chapter, that is to say, If a man bound in an obligation pay the money, and taketh no acquittance, so, that by the common law he shall be compelled to pay the money again, for such consideration as appeareth in the fifteenth chapter of the said dialogue where it is shewed evidently how the law in that case is, made upon a good reasonable ground, much necessary for all the people, howbeit that a man may sometime, through his own default, take hurt thereby: herein I pray thee shew me thine opinion.

Doct. This case seemeth to be like to the case that thou hast next before this, and that he that knoweth the payment to be made doth not as. he would be done to, if he gave counsel that an action should be taken to have it paved again.

Stud. If he be sworn to give counsel according to the law, as serjeants at the law be, it seemeth he is bound to give counsel according to the law, for else. he should not perform his oath.

Doct. In these words (according to the law) is understood the law of God, and the law of reason, as well as the law and customs of the realm: for as thou hast said thyself, in our first dialogue in Latin, that the law of God, and the law of reason, be two special grounds of the laws of England, wherefore (as methinketh) he may give no counsel (saving his oath) neither against the law of God, nor the law of reason. And certain it is, that this article, that is to say, that a man shall do as he would be done to, is grounded upon both the said laws. And first that it is grounded upon the law of reason, it is evident of itself. And in the sixth chapter of St. Luke it is said, Et prout vultis ut faciant vobis homines, et vos facite illis similiter; that is to say, All that other men should do to you, do you to them: and so it is grounded upon the law of God. Wherefore if he should give counsel against the defendant in that case, he should do against both the said laws.

Stud. If the defendant had no other remedy but the common law, I would agree well it were as thou sayest, but in this case he may have good remedy by a subpoena: and this is the way that shall induce him directly to his subpoena, that is to say, when it appeareth that the plaintiff shall recover by law.

Doct. Though the defendant may be discharged by subpoena, yet the bringing in of his proofs there will be to the charge of the defendant, and also the proofs may die or they come in. Also there is a ground in the law of reason, Quod nihil possimus contra veritatem, (that is) We may do nothing against the truth; and sith he knoweth it is truth that the money is payed, he may do nothing against the truth; and if he should be of counsel with the plaintiff, lie must suppose and aver that it is the very due debt of the plaintiff, and that the defendant with-holdeth it from him unlawfully, which he knoweth himself to be untrue wherefore he may not with conscience in this case be of counsel with the plaintiff, knowing that the plaintiff is paid already. Wherefore if thou be contented with this answer, I pray thee proceed to some other question.

Stud. I will with good-will.