The Doctor and Student (1518)

Christopher St. Germain

The twentieth question of the student, which of two sons shall inherit

Stud. A man hath two sons; one born before espousals, and the other after espousals, and the father by his will bequeatheth to his son and heir all his goods: which of these two sons shall have the goods in conscience?

Doct. As I said in our first dialogue in Latin, the last chapter, the doubt in this case dependeth not in the knowing what conscience will in this case, but rather the knowing which of the sons shall be judged heir, (that is to say) whether he shall be taken for heir, that is heir by the spiritual law, or he that is heir by the law of the realm, or else that it shall be judged for him that the father took for heir.

Stud. As to that point, admit the father’s mind not to be known, or else that his mind was that he should be taken for heir that should be judged for heir by the law, that in this case it ought to be judged by; and then I pray thee, shew me thy mind therein: for though the question be not directly depending upon the point to see what conscience will in this case, yet it is right expedient for the well ordering of conscience, that it be known after what law it shall be judged; for if it ought to be judged after the temporal law who should be heir, then it were against conscience, if the judges in the spiritual law should judge him for heir that is the heir by the spiritual law, and I think they should be bound to restitution thereby. And therefore, I pray thee, shew me thine opinion, after what law it shall be judged.

Doct. Methinketh that in this case it shall be judged after the law of the church; for it appeareth that the bequest is of goods: and therefore if any suit shall be taken upon the execution of the will for the bequest, it must be taken in the spiritual court; and when it is depending in the spiritual court, methinketh it must be judged after the spiritual law; for of the temporal law they have no knowledge, nor they are not bound to know it, as methinketh; and more stronger not to judge after it. But if the bequest had been of a chattel real, as of a lease for term of years, or of a ward, or such other, then the matter should have come in debate in the king’s court; and then I think the judges there should judge after the law of the realm, and that is, that the younger brother is heir: and so methinketh the diversity of the courts shall make the diversity of judgment.

Stud. Of that might follow a great inconvenience, as me seemeth, for it might be such a case that both. chattels real and chattels personal were in the will, and then, after thine opinion, the one son shall have the chattels personal, and the other son the chattels real; and it cannot be conveniently taken, as methinketh, but that the father’s will was, that the one son should have all, and not be divided. Therefore methinketh that he shall be judged for heir that is heir by the Common law, and that the judges spiritual in this case be bound to take notice what the Common law is: for sith the things that be in variance be temporal, that is to say, the goods of the father, it is reason that the right of them in this realm shall be determined by the law of the realm.

Doct. How may that be? For the judges spiritual know not the law of the realm, ne they cannot know it as to the most part of it; for much part of the law is in such speech that few men have the knowledge of it, and there is no means, ne familiarity of study between them that learn the said laws; for they be learned in several places; and after divers ways, and after divers manners of teachings, and in divers speeches, and commonly the one of them have none of the books of the other: and to bind the spiritual judges to give judgment after the law that they know not, ne that they cannot come to the knowledge of it, seemeth not reasonable.

Stud. They must do therein as the king’s judges must do when any matter cometh before them that ought to be judged after the spiritual law, whereof I put divers cases in our first dialogue in English, the sixth chapter; that is to say, they must either take knowledge of it by their own study, or else they must enquire of them that be learned in the law of the church, what the law is; and in like wise must they do. But it is to doubt, that some of them would be loth to ask any such question in such case, or to confess that they are bound to give their judgment after the temporal law: and surely they may lightly offend their conscience.

Doct. I suppose that some be of opinion that they are not bound to know the law of the realm; and verily, to my remembrance, I have not heard that judges of the spiritual law are bound to know the law of the realm.

Stud. And I suppose that they are not only bound to know the law of the realm, or to do that in them is to know it, when the knowledge of it openeth the right of the matter that dependeth before them: but that they be also bound to know where, and in what case they ought to judge after it: for in such cases they must take the king’s law as the law spiritual to that point, and are bound in conscience to follow it, as it may appear by divers cases, whereof one is this. Two joint-tenants be of goods, and the one of them by his last will bequeathed all his part to a stranger, and maketh the other joint-tenant his executor, and dieth: if he to whom the bequest is made sue the other joint-tenant upon the legacy as executor, etc. upon this matter spewed, the judges of the spiritual law are bound to judge the will to be void, because it is void by the law of the realm, whereby the joint-tenant hath right to the whole goods by the title of the survivor, and is judged to have the goods as by the first gift; which is before the title of the will, and must therefore have preferment as the eldest title; and if the judges of the spiritual court judge otherwise, they are bound to restitution. And by like reason the executors of a man that is outlawed at the time of his death, may discharge themselves in the spiritual court of the performing of the legacies, because they be chargeable to the king; and yet there is no such law of utlagary in the spiritual law.

Doct. By occasion of that thou hast said before, I would ask of thee this question. If a parson of a church alien a portion of dismes according as the spiritual law hath ordained, is not that alienation sufficient, though it have not the solemnities of the temporal law?

Stud. I am in doubt therein, if the portion be under the fourth part of the value of the church; but if it be to the value of the fourth part of the church or above, it is not sufficient, and therefore was the writ of right of dismes ordained. And if in a writ of right of dismes it be adjudged in the king’s court for the patron of the successor of him that alieneth, because the alienation was not made according to the Common law: then the judges of the spiritual law are bound to give their judgment according to the judgment given in the king’s court. And in like wise, if a parson of a church agree to take a pension for the tithe of a mill, or if the pension be to the fourth part of the value of the church, or above, then it must be aliened after the solemnities of the king’s laws, as lands and tenements must; or else the patron of the successor of him that alieneth may bring a writ of right of dismes, and recover in the king’s court; and then the judges of the spiritual court are bound to give judgment in the spiritual courts accordingly, as is aforesaid, foci I have heard say, that a writ of right of dismes is given by the statute of Westm. 2, and that speaketh only of dismes, and not of pensions.

Stud. Where a parson of a church is wrongfully deforced of his dismes, and is let by an indicavit to ask his dismes in the spiritual court, then the patron may have a writ of right of dismes by the statute that thou speakest of, for there lay none at the common law; for the parson had there good right, though he were let by the indicavit to sue for his right. But when the parson had no remedy at the spiritual law, there a writ of right of dismes lay for the patron by the common law, as well of pensions as of dismes; and some say that in such case it lay of less than of the fourth part, by the common law, but that I pass over. And the reason why it lay at the common law, if the dismes or, pensions were above the fourth part, etc., was this: By the spiritual law the alienation of the parson with the assent of the bishop, and of the chapter, shall bar the successor without assent of the patron, and so the patron might leese his patronage, and be not assenting thereto: for his incumbent might have no remedy but in the spiritual court, and there he was barred: wherefore the patron in that case shall have his remedy by the common law, where the assent of the ordinary and chapter without the patron shall not serve, as it is said before. But where the incumbent had good right by the spiritual law; there lay no remedy for the patron by the common law, though the incumbent were let by an indicavit. And for that cause was the said statute made, and it lieth as well by the equity for offerings. and pensions, as for dismes. Then, farther, I would think that where the spiritual court may hold plea of a temporal thing, that they must judge after the temporal law, and that ignorance shall not excuse them in that case; for by taking of their office they have bound themselves to have knowledge of as much as belongeth to their office, as all judges be, spiritual and temporal. But if it were in argument in this case, whether the eldest son might be a priest, because he is a bastard in the temporal law, that should be judged after the spiritual law, for the matter is spiritual.

Doct. Yet notwithstanding all the reasons that thou hast made, I cannot see how the judges of the spiritual law shall be compelled to take notice of the temporal law; seeing that the most part of it is in the French tongue; for it were hard that every spiritual judge should be compelled to learn the tongue. But if the law of the realm were set in such order, that they that intend to study the law canon .might first have a sight of the law of the realm, as they have now of the law civil, and that some books and treatises were made of cases of conscience concerning those two laws, as there be now concerning the law civil and the law canon; I would assent that it were right expedient, and then reason might serve the better, that they should be compelled to tale notice of the law of the realm, as they be now bound in such countries as the law civil is used to take notice of that law.

Stud. Methinketh thine opinion is right good and reasonable, but till such an order be taken, they are bound, as I suppose, to enquire of them that be learned in the Common law, what the law is, and so to give their judgment according, if they will keep themselves from offence of conscience. And forasmuch as thou hast well satisfied my mind in all the questions before, I pray thee now that I may somewhat feel thy mind in divers articles that be written in divers books for the ordering of conscience upon the law canon or civil: for methinketh that there be slivers conclusions put in divers books, as in the sums called summa angelica and summa rosella, and divers other for the good order of conscience, that be against the law of this realm, and rather bind conscience, than do give any light to it.

Doct. I pray thee shew me some of these cases.

Stud. I will with good-will.