The Doctor and Student (1518)
Christopher St. Germain
The seventeenth question of the student, if a man counsels another that he has a right to land, and great suit and charges follow, what danger is this to him that gave counsel
Stud. A man hath a villein for term of life, the villein purchaseth lands in fee, as in the case of the last chapter, and the tenant for term of life entereth, and after the villein dieth: he in the reversion pretending that the tenant for term of life hath nothing in the land but for term of life of the villein, asketh counsel of one that sheweth him that he hath good right to the land, and that he may lawfully enter, and through that counsel he in the reversion entereth, by reason of the which entry great suits and expenses follow in the law, to the great hurt of both parties: what danger is this to him that gave the counsel?
Doct. Whether meanest thou that he that gave the counsel gave it willingly against the law, or that he was ignorant of the law
Stud. That he was ignorant of the law: for if he knew the law, and gave counsel to the contrary, I think him bound to restitution, both to him against whom he gave the counsel, and also to his client, (if he would not have sued but for his counsel) of all that they be damnified by it.
Doct. Then will I yet farther ask thee this question; whether he of whom he asked counsel gave himself to learneng and to have knowledge of the law after his capacity? Or that he took upon him to give counsel, and took no study competent to have learning? For if he did so, I think he be bounden in conscience to restitution of all the costs and damages that he sustained to whom he gave counsel, if he would not have sued but through his counsel, and also to the other party. But if a man that hath taken sufficient study in the law mistake the law in some point that it is hard to come to the knowledge of, he is not bounden to such restitution, for he hath done that in them is but if such a man knowing the law give counsel against the law, he is bound in conscience to restitution of costs and damages, (as thou hast said before) and also to make amends for the untruth.
Stud. What if he ask counsel of one that he knoweth is not learned, and he giveth him counsel in this case to enter, by force whereof he entereth ?
Doct. Then be they both bound in conscience to restitution; that is to say, the party, if he be sufficient, and else the counsellor, because he assented, and gave counsel to the wrong.
Stud. But what is the counsellor in that case bounden to him that he gave counsel to?
Doct. To nothing: for there was as much default in him that asked the counsel as in him that gave it; for he asked counsel of him that he knew was ignorant; and in the other was default for the presumption, that he would take upon him to give counsel in that he was ignorant in.
Stud. But what if he that gave the counsel knew not but that he that asked it had trust in him, that he could and would give him good counsel, and that he asked counsel for to order well his conscience, howbeit that the truth was that he could not so do?
Doct. Then is he that gave the counsel bounden to offer to the other amends, but yet the other may not take it in conscience.
Stud. That were somewhat perilous; for haply he would take it, though he have no right to it, except the world be well amended.
Doct. What thinkest thou in that amendment?
Stud. I trust every man will do now in this world as they would be done to, speak as they think, restore where they have done wrong, refuse money if they have no right to it, though it be offered them, do that they ought to do by conscience, and though that they cannot be compelled to it by no law; and that none well give counsel but that they shall think to be according to conscience, and if they do, to do what they can to reform it, and not to intermit themselves with such matters as they be ignorant in, but in such cases to send them that ask the counsel to other that they shall, think be more cunning than they are.
Doct. It were very well if it were as thou hast said but, the more pity, it is not alway so; and especially there is great default in givers of counsel: for some, for their own lucre and profit, give counsel to comfort other to sue that they know have no right, but I trust there be but few of them; and some for dread, some for favour, some for malece, and some upon confederacies, and to have as much done for them another time to hide the truth. And some take upon them to give counsel in that they be ignorant in, and yet when they know the truth well not withdraw that they have misdone, for they think it should be greatly to their rebuke; and such persons follow not this counsel, that saith, That we have unadvisedly done, let us with good advice revoke again.”
Stud. And if a man give counsel in this realm after as his learning and conscience giveth him, and regardeth the laws of the realm, giveth he good counsel?
Doct. If the law of the realm be not in that case against the law of God, nor against the law of reason, he giveth good counsel: for every man is bound to follow the law of the country where he is, so it be not against the said laws; and so may the cases be that he may bind himself to restitution.
Stud. At this time I will no farther trouble thee in this question.