The Doctor and Student (1518)

Christopher St. Germain

Where ignorance of the law excuseth in the laws of England, and where not

Stud. Ignorance of the law (though it be invincible) doth not excuse as to the law but in few cases; for every man is bound at his peril to take knowledge what the law of the realm is, as well the law made by statute as the common law: but ignorance of the deed, which may be called the ignorance of the truth of the deed, may excuse in many cases.

Doct. I put the case that a statute penal be made, and it is enacted, that the statute shall be proclaimed by such a day in every shire, and it is not proclaimed before the day, and after the day a man offends against the statute; shall he run in the penalty?

Stud. I think yea, if there be no farther words in the statute to help him; that is to say, that if the proclamation be not made, that no man shall be bound by the statute. And the cause is this: there is no statute made in this realm but by the assent of the lords spiritual and temporal, and of all the commons; that is to say, by the knights of the shire, citizens and burgesses, that be chosen by assent of the commons, which in the parliament represent the estate of the whole commons: and every statute there made is of as strong effect in the law, as if all the commons were there present personally at the making thereof. And like as there needed no proclamation, if all were there present in their own person; so the law presumed there needeth no proclamation when it is made by their authority: and then when it is enacted, That it shall be proclaimed, etc., that is but of the favour of the makers of the statute, and not of necesssity; and it cannot therefore be taken, that their intent was that it should be void if it were not proclaimed. Nevertheless some be of opinion, that if a man before the day appointed for the proclamation offend the statute, that he should not in, that case be punished; for they say that the intent of the makers of the statute shall be taken to be, that none should be punished before the day; which is a doubt to some other. But admit it to be as they say, that be shall be excused, yet he is not. excused by the ignorance of the law, but because the intent of the makers excuseth him.

Doct. It is enacted in the 7th year of Rich. II., cap. 6, That every sheriff shall proclaim the statute of Winchester three times every year in every market town, to the intent the offenders shall not be excused by ignorance, and it seemeth by these words, That if no proclamation be made, that the offender may be excused by ignorance.

Stud. Some take the intent of that statute to be, that the people by that proclamation should have knowledge of the statute of Winchester, to the intent that the forfeiture therein may be taken as well in conscience as in law; and some take the statute to the of such effect as thou speakest of, that is to say, that no forfeiture should grow upon the statute of Winchester against them that were ignorant, but proclamation were made according to the said statute of Richard. And if it be so taken, the statute of Winchester is of small effect against most part of the people; for certain it is that the said proclamation is not made: but admit it to be as they say, then they that be ignorant be excused by the said particular estatute specially made in that case, and not by the general rules of the law: and sometimes, in divers statutes penal, they that be ignorant be excused by the same statute, as it is upon the statute of Rich. II., the 13th year, the 2d statute, and the last chapter, where it is enacted, That if any person take a benefice by provision, that he shall be banished the realm, and forfeit all his goods, and that if he be in the realm, he avoid within six weeks after he hath accepted it, and that none shall receive him that is so banished after the said six weeks, upon like forfeiture if he have knowledge: and so he that hath no knowledge is excused by the express words of the statute. And in like wise he that offendeth against Magna Charta is not excommenged, but he have knowledge that it is prohibit that he doth. For they be only excommenged by the sentence called Sententia late super chartus, that do it willingly, or that do it by ignorance, and correct not themselves within fifteen days after they have warning. And sometime they that be ignorant of the statute be excused from the penalty of the statute, because it shall be taken that the intent of the makers of the statute was, that none should be bound but they that have knowledge: but that any man shall be discharged in the law by ignorance of the law, only for that he is ignorant, I know few cases, except it might be applied to infants that be in their infancy, and within years of discretion; for if ignorance of the law should excuse in the law, many offenders would pretend ignorance.

Doct. Shall an infant that hath discretion, and knoweth good from evil, be punished by a penal statute that he is ignorant in?

Stud. If the statute be, that for the offence he should have corporal pain, I think he shall be excused, and have no corporal pain; but I suppose that that is not for the ignorance; for though he knew the statute, and willingly offended, yet I think he shall have no corporal pain as where he pleads joint-tenancy by deed that is found against him, or if he plead a record in assise, and faileth of it at his day: but that is because the law presumeth, that it was not the intent of the makers of the statute that he should have that punishment. But if he be of years of discretion to know good from evil, whether he shall then forfeit the penalty of a penal statute, it is more doubt: for it is commonly holden, that if an infant had not been excepted in the statute of forejudgment, that the forejudgment should have bound him, and so shall his cesser, and his levying of a cross against the statute or if he be gardein of a prison, and suffer a prisoner to escape, he shall pay the debt, because the statutes be general: and if he should by the statutes be bound within age, like reason will that he may by a statute penal leese his goods.

Doct. If an infant do a murther or felony at such years as he hath discretion to know the law, shall not he have the punishment of the law, as one of full age?

Stud. I think yea; but that is by an old maxim of the law for eschewing of murders and felonies: and so it is of a trespass. But these cases run not upon the ground of ignorance, but with what acts infants shall be punishable or not punishable for the tenderness of their age, though they be not ignorant.

Doct. Be not yet knights and noblemen, that are bound most properly to set their study to acts of chivalry, for defence of the realm, and husbandmen, that must use tillage and husbandry for the sustenance of the commonalty, and that may not by reason of their labour put themselves to know the law, discharged by ignorance of the law?

Stud. No verily: for sith all were makers of the statute, the law presumeth that all have knowledge of that that they make, as it is said before; and as they be bound at their peril to take knowledge of the statute that they make, so be all them that come after them. And as for knights and other nobles of the realm, me seemeth that they should be bound to take knowledge of the law, as well as any other within the realm, except them that give themselves to the study and exercise of the law, and except spiritual judges, that in many cases be bound to take knowledge of the law of the realm, as it is said before in Chap. 25. For though they be bound to acts of chivalry for defence of the realm, yet they be bound also to acts of justice, and that (it seemeth) more than other be, by reason of their great possessions and authority, and for the well-ordering of the tenants, servants and neighbours, that many times have need of their help; and also that they be oft called to be of the king’s council, and to the general councils of the realm, where their counsel is right expedient and necessary for the commonwealth. And therefore if the noblemen of this realm would see their children brought up in such manner, that they should have learning and knowledge more than they have commonly used to have in time past, specially of the grounds and principles of the law of the realm, wherein they be inherit, (though they had not the high cunning of the whole body of the law, but after such manner as Mr. Fortescue in his book that he entituleth the book, De laudibus legum Anglia, advertiseth the prince to have knowledge of the laws of the realm) I suppose it would be a great help hereafter to the ministration of justice of this, realm, a great surety for himself, and a right great gladness to all the people. For certain it is, the more part of the people would more gladly hear that their rulers and governors intended to order them with wisdom and justice, than with power and great retinues. But ignorance of the deed many times excuseth in the laws of England: and I shall shortly touch some cases thereof, to shew where it shall excuse, and where it shall not excuse; and then the reader may add to it after his pleasure, and as he shall think to be convenient.