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The Doctor and Student (1518)
Christopher St. Germain
If a clerk be promoted to the title of his patrimony, and after selleth his patrimony, and after falleth to poverty, whether shall he have his title therein
Stud. In the said sum called rosella, in the title Clericus quartos, the 24th article, it is asked, If a clerk be promoted to the title of his patrimony, whether he may alien it at his pleasure; and whether in that alienation the solemnity needeth to be kept, that is to be kept in alienations of things of the church? And it is answered there, that it may not be aliened no more than the goods of a spiritual benefice, if it be accepted for a title, and expressly assigned unto him, so that it should go as into a thing of the church, except he have after another benefice whereof he may live. But if it be secretly assigned to his title, some agree it may be aliened. And in this case, by the laws of the realm, it may be lawfully aliened, whether it be secretly or openly assigned to the title; for the ordinary, ne yet the party himself, after the old custom of the realm, have no authority to bind any inheritance by authority of the spiritual law; and therefore the land, after it is assigned and accepted to be his title, standeth in the self-same case to be bought, sold, charged, or put in execution, as it did before. And therefore it is somewhat to be marvelled, that ordinaries will admit such. land for a title, to the intent that he that is promoted should not fall into extreme poverty, or go openly a begging, without knowing how the Common law will serve .therein: for of mere right all inheritances within this realm ought to be ordered by the king’s laws, and inheritance cannot be bound in this realm but by fine, or some other matter of record, or by feoffment, or such other, or, at least by a bargain that changeth an use. And over that to assign a state for term of life to him that hath a fee-simple before, is void in the laws of England, without it be by such a matter that it work by way of conclusion or estoppel: and in this case is no such matter of conclusion; and therefore all that is done in such case in assigning of the said title is void. Also there is no interest that a man hath in any manor, lands or tenements for term of life, for term of years, or otherwise, but that, he by the law of the realm may put away his right therein if he will. And then when this man alieneth his land generally, it were against the law of the realm that any interest of such a title should remain in him against his own sale: and there is no diversity, whether the assignment of the title were open or secret, and so the title is void to all intents. And in like wise, if a house of religion, or any other spiritual man that hath granted a title after the custom used in such titles, sell all the lands and goods that they have, that sale in the laws of England is good as against the title, and the buyer shall never be put to answer to the title. Also some say, that upon the common titles that be made daily in such case, that if he fall to poverty that hath the title, he is without remedy; for they be so made, that at the Common law there is no remedy for them; and if he take a suit in the spiritual court, many men say that a Prohibition or a Praemunire lieth. And therefore it were good for ordinaries in such case to counsel with them that be learned in the law of the realm, to have such a form devised for making of such titles, that if need be, would serve them that they be made unto; or else let them be promoted without any title, and to trust in God, that if they serve him as they ought to do, he will provide for them to have sufficient for them to live upon. And besides these cases that I have remembered before, there be many other cases put in the said sums for well-ordering of conscience, that, as methinketh, are not to be observed in this realm, neither in law nor conscience.
Doct. Dost thou then think that there was default in them that drew the said sums, and put therein such cases, and such solutions, that as thou thinkest, hurt conscience, rather than to give any light to it, specially in this realm?
Stud. I think no default in them, but I think that they were right well and charitably occupied, to take so great pain and labour as they did therein, for the wealth of the people, and clearing of their conscience; for they have thereby given a right great light in conscience to all countries where the law civil and the law canon be used to temporal things. But as for the laws of this realm they know them not, ne they were not bound to know them and if they had known them, it would little have holpen them for the countries that they most specially made their treatises for. And in this country also they be right necessary and much profitable to all men, for such doubts as rise in conscience in divers other manners not concerning the laws of the realm. And I marvel greatly, that none of them that in this realm are most bounden to do that in them is to keep the people in a right judgment, and in a clearness of conscience, have done no more in time passed to have the law of the realm known than they have done for though ignorance may sometimes excuse, yet the knowledge of the truth, and the true judgment, is much better and sometime though ignorance excuseth in part, it excuseth not in all; and therefore methinketh they did very well if they would yet be callers on to have that point reformed as shortly as they could. And now because thou hast now satisfied my mind in many of these questions that I have made, I purpose for this time to make an end.
Doct. I pray thee yet shew me, or that thou make an end, more of these cases, that after thine opinion be set in divers books of learning of conscience, that, as thou thinkest, for lack of knowledge of the law of the realm, do rather blind conscience, than give a light unto it: for if it be so, then surely, as thou hast said, it would be reformed.
For I think verily, the laws of the realm in many cases must in this realm be observed as well in conscience, as in the judicial courts of the realm.
Stud. I will with good-will shew to thee shortly some other questions that be made in the said sum, to give thee .another occasion to see therein the opinions of the said sums, and to see farther thereupon how the opinions and the laws of the realm do agree together. And yet besides these questions that I intend to shew unto thee, there be many other questions of the said sums that had as great need to be more plainly declared according to the laws of the realm, as those that I shall shew thee hereafter, or as I have spoken of before. But to the cases that I shall speak of hereafter I will shew thee nothing of my conceit in them, but shall leave it to others that will of charity take some farther pain hereafter in that behalf.