The Doctor and Student (1518)

Christopher St. Germain

If a man be excommenged, whether he may be assoiled without making satisfaction

Stud. In the sum called summa rosella, in the title absolution quarter, the second article, it is said, that he that is excommunicate for a wrong, if he be able to make satisfaction, ought not to be assoiled, but he do satisfy; and that they offend that do assoil him, but yet nevertheless he is assoiled; and if he be not able to make amends, that he must yet be assoiled, taking sufficient gage to satisfy if he be able hereafter, or else that he make an oath to satisfy, if he be able. And these sayings in many things hold not in the laws of England.

Doct. I pray thee shew wherein the law of the realm varieth therefrom.

Stud. If a man be excommunicate in the spiritual court for debt, trespass, or such other things as belong to the king’s crown, and to his royal dignity, there he ought to be assoiled without making any satisfaction, for the spiritual court exceedeth their power in that they held plea in those cases, and the party, if he will, may thereupon have a Praemunire facias, as well against the party that sued him as against the judge, and therefore in this case they ought in conscience to make absolution without any satisfaction, for they not only offended the party, in calling him to answer before them of such things as belong to the law of the realm, but also the king; for he, by reason of such suits, may leese great advantages by reason of the writs originals, judicials, fines, amerciaments, and such other things as might grow to him, if suits had been taken in his courts according to his laws. And according to this saying it appeareth in divers statutes, that if h man lay violent hands upon a clerk, and beat him, that for the beating amends shall be made in the king’s court; and for the laying of violent hands upon the clerk, amends shall be made in the Court-christian. And therefore if the judge in the Court-christian would award the party to yield damages for the beating, he did against the statute. But admit that a man be excommenged for a thing that the spiritual court may award the party to make satisfaction of, as for the not inclosing of the church-yard, or for not apparelling of the church conveniently; then I think the party must make restitution, or lay a sufficient caution, if he be able, or he be assoiled; but if the party offer sufficient amends, and have his absolution, and the judge will not make him his letters of absolution, if the excommengement. be of record in the king’s court, then the. king may write unto the spiritual judge, commanding him that he make the party his letters of absolution, upon pain of contempt: and if the said excommunication be not of record in the king’s court, then the party may in such. case have his action against the judge spiritual, for that he would not make him his letters of absolution. But if he be not able to make satisfaction, and therefore the judge spiritual will not assoil him, what the king’s laws may do in this case I am somewhat in doubt, and will not much speak of it at this time; but, as I suppose, he may as well have his action in that case for the not assoiling him, as where he is assoiled, and that the judge will not make him his letters of absolution. And I suppose the same law to be, where a man is accursed for a thing that the judge hath no power to accurse him in, as for debt, trespass, or such other.

Doct. There he may have other remedies, as a Praemunire facias, or such other: and therefore I suppose the other action lieth not for him.

Stud. The judge and the party may be dead, and then no Praemunire lieth; and though they were alive, and were condemned in Praemunire, yet that should not avoid the excommengement: and there I think the action lieth, specially if he be thereby delayed of actions that he might have in the king’s court if the said excommengement had not been.