The Doctor and Student (1518)
Christopher St. Germain
The thirteenth question of the student, whether a man whose wife dies
before he can possess her land, in conscience shall be tenant by the courtesy
Stud. A man seised of certain land, in fee hath a daughter, which is his heir apparent, the daughter taketh an husband, and they have issue; the father dieth seised, and the husband as soon as he beareth of his death goeth toward the land to take possession, and before he can come there his wife dieth: whether ought he to have the land in conscience for term of his life as tenant by the courtesy, because he hath done that in him was, to have had possession in his wife’s life, so that he might have been tenant by the courtesy according to the law; or that he shall neither have it by the law nor conscience?
Doct. Is it clearly holden in the law, that he shall not be tenant by the courtesy in this case, because he had not possession in deed ?
Stud. Yea, verily, and yet upon a possession in law a woman shall have her dower; but no man shall be tenant by the courtesy of land without his wife have possession in deed.
Doct. A man shall be tenant by the courtesy of a rent though his wife die before the day of payment, and in like wise of an advowson though she die before the avoidance.
Stud. That is truth; for the old custom and maxim of the law is, that he shall be so: but of land there is no maxim that serveth him, but his wife have possession in deed.
Doct. And what is the reason that there is such a maxim in the law of the rent, and of the advowson, rather than of land, when the husband doth as much as in him is, to have possession, and cannot?
Stud. Some assign the reason to he, because it is impossible to have possession in die: of the rent, or of advowson, before the day of payment of the rent, or before the avoidance of the advowson.
Doct. And so it is impossible that lie should have possession in deed of land, if his wife die so soon that he may not by a possibility come to the land after his father’s death, and in her life, as the case is.
Stud. The law is such as I have shewed thee before and I take the very cause to be, for that there is a maxim serveth for the rent and the advowson, and not for the lands, as I have said before: and, as it is said in the eighth chapter of our first dialogue, it is not alway necessary to assegn a reason or consideration why the maxims of the law of England were first ordained and admitted for maxims; but it sufficeth that they have been always taken for law, and that they be neither contrary to the law of reason, nor to the law of God, as this maxim is not: and therefore, if the husband in this case be not holpen by conscience, he can not be holpen by the law.
Doct. And if the law help him not, conscience cannot help him in this case; for conscience must always be grounded upon some law and it cannot in this case be grounded upon the law of reason, nor upon the law of God for it is not directly by those laws that a man shall be tenant by courtesy, but by the custom, of the realm; and therefore if the custom help him not, he can nothing have in this case by conscience; for conscience never resisteth the law of man, nor addeth nothing to it, but where the law of man is in itself directly against the law of reason, or else the law of God, and then properly it cannot be called a law, but a corruption; or where the general grounds of the law of man work in any particular case against the said laws, as it may do, and yet the law good, as it appeareth in divers places in our first dialogue in Latin; or else where there is no law of man provided for him that hath right to a thing by the law of reason, or by the law of God: and then sometime there is remedy given to execute that in conscience, as by a subpoena, but not in all cases; for sometime, it shall be referred to the conscience of the party, and upon this ground, that is to say, that when there is no title given by the Common law, that there is no title by conscience. There be divers other cases, whereof I shall put some for an example: As if a reversion be granted unto one, but there is no attornment, or if a new rent be granted by word without deed; there is no remedy by conscience, unless the said grants were made upon consideration of money, or such other. And in like wise where he that is seised of lands in fee-simple maketh a will thereof, that will is void in conscience, because the ground serveth not for him whereby the conscience should take effect, that is to say, the law. And if the, tenant make a feoffment of the land that he holdeth by priority, and taketh estate again and dieth, (his heir within age) the lord of whom the land was first holden by priority shall have no remedy for the body by conscience; for the law that first was with him, is now against him, and therefore conscience is altered in like wise as the law altereth. And divers and many cases like be in the law, that were too long to rehearse now. And thus methinketh, that if the law be as thou sayest, the husband in this case hath neither right by the law nor conscience.