The Doctor and Student (1518)

Christopher St. Germain

The sixth question of the doctor, whether the colors that be given at the common law stand with conscience, because they be most commonly feigned

Doct. I pray thee let me hear thy mind to what intent such colours be given, and sith they be commonly untrue, how they may stand with conscience?

Stud. The cause why such colours be given is this There is a maxim and a ground of the law of England, that if the defendant or tenant in any action plead a plea that amounteth to the general issue, that he shall be compelled to take the general issue; and if he will not, he shall be condemned for lack of answer; and the general issue in assise is, that he that is named the disseisor hath done no wrong, nor no disseisin and in a writ of Entry in the nature of assise the general issue is, that he disseised him not; and in an action of trespass, that he is not guilty. And so every action hath his general issue assigned by the law: and the tenant must of necessity either take the general issue, or plead some plea in abatement of the writ, to the jurisdiction to the party, or else some bar, or some matter by way of conclusion. And therefore if John at Stile infeoff H. Hart of land, and a stranger bringeth an assise against the said H. Hart for the land, whose title he knoweth not; in this case, if he should be compelled to plead to the point of the assise, that is to say, that he hath done no wrong, ne no disseisin, the matter should be put to the mouths of twelve laymen, which be not learned in the law; and therefore better it is that the law be so ordered, that it be put in the determination of the judges, than of laymen. And if the said H. Hart, in the case before rehearsed, would plead in bar of the assise, that John at Stile was seised, and infeoffed him, by force whereof he entered, and asked judgment if that assise should lie against him; that plea were not good, for it amounteth but to the general issue, and therefore he shall be compelled to take the general issue, or else the assise shall be awarded against him for lack of answer. And therefore to the intent the matter may be shewed and pleaded before the judges, rather than before the jury, the tenants use to give the plaintiff a colour, that is to say, a colour of action, whereby it shall appear that it were hurtful to the tenant to put that matter that he pleadeth to the judgment of twelve men: and the most common colour that is used in this case is this: When he hath pleaded that such a man infeoffed him, as before appeareth, it is used that he shall plead farther, and say that the plaintiff claiming by a colour of a deed of feoffment made by the said feoffor before the feoffment made to him, where no right passed by the deed, entered, upon whom he entered, and asked judgment if the assise lie against him. In this case, because it appeareth to be a doubt to unlearned.men, whether the land passed by the deed without livery or not; therefore the law suffereth the tenant to have that special matter to bring the matter to the determination of the judges. And in such case the judges may not put the tenant, from the plea, for they knew not as judges but that it is true; and so if any default be, it is in the tenant, and not in the court. And though the truth be, that there were no such deed of feoffment made to the plaintiff as the tenant pleadeth; yet methinketh there is no default in the tenant, for he doth it to a good intent, as before appeareth.

Doct. If the tenant know that the feoffor made no such deed of feoffment to the plaintiff, then there is a default in the tenant to plead it, for he wittingly saith against the truth; and it is holden by all doctors, that every lie is an offence, more or less; for if it be of malice, and to the hurt of his neighbour, then it is called mendaciur perniciosurn, and that is deadly sin; and if it be in sport, and to the hurt of no man, nor of custom used, ne of pleasure that he hath in lying, then it is venial sin, and it is called in Latin mendacium jocosusm: and if it be to the profit of his neighbour, and to the hurt of no man, then it is also venial sin, and it is called in Latin mnendacium o ciosur; and thought it be the least of those three, yet it is a venial sin, and would beeschewed.

Stud. Though the midwives of Egypt lied when they had reserved the male-children of the Hebrews, saying to the king Pharaoh, that the Hebrews had women that were cunning in the same craft, which ere they came had reserved the children alive, where indeed they themselves of pity, and of dread of God reserved them; yet Saint Hierome expounded the text following, which saith, that our Lord therefore gave them houses, that is to be understood that he gave them spiritual houses, and that they had therefore eternal reward: and if they sinned by that lie, although it were but venial, yet I cannot see how they should have therefore eternal reward. And also if a man intending to, slay another, ask me where that man is; is it not better for me to lie, and say I cannot tell where he is, though I know it, than to shew where he is, whereupon murther should follow?

Doct. The deed that the midwives of Egypt did in saving the children was meritorious, and deserved reward everlasting, if they believed in God, and did good deeds beside, as it -is to suppose they did, when they for the love of God refused the death of the innocents: and then, though they made a lie after, which was but venial sin, that could not take from them their reward, for a venial sin doth not utterly extinct charity, but letteth the fervour thereof: and therefore it may well stand with the words of Saint Hierome, that they had for their good deed eternal houses, and yet the lie that they made to be a venial sin. But nevertheless, if such a lie that is of itself but venial, be affirmed with an oath, it is always mortal, if he know it to be false that he sweareth. And to the other question, it is not like to this question that we have in hand, as me seemeth: for sometime a man for the eschewing of the greater evil may do a less evil, and then the less is no offence in him; and so it is in the case that thou hast put, wherein because it is less offence to say he woteth not where he is, though he know where he is, than it is to shew where he is, where upon murther should follow, it is therefore no sin to say he woteth not where he is: for every man is bound to love his neighbour, and if he shew in this case where he is, knowing his death should follow thereupon, it seemeth that he loved him not, ne that he did not to him as he would be done to. But in the case that we be in here, there is no such sin eschewed: for though the party pleadeth the general issue, the jury might find the truth in every thing; and therefore in that he saith that the plaintiff, claiming it by the colour of a deed of feoffment, where nought passed, entered, etc., knowing that there was no such feoffment, it was a lie in him, and a venial sin, as methinketh. And every man is bound to suffer a deadly sin in his neighbour, rather than a venial sin in himself.

Stud. Though the jury upon a general issue may find the truth, as thou sayest, yet it is much more dangerous to the jury to inquire of many points, than to inquire only of one point. And forasmuch as our Lord hath given a commandment to every man upon his neighbour; therefore every man is bound to foresee as much as in him is, that by him no occasion of offence come to his neighbour. And for the same cause the law hath ordained divers maxims and principles, whereby issue in the king’s court may be joined, upon one point in certain, as nigh as may be, and not generally, lest offence might follow thereupon against God, and a hurt also unto the jury. Wherefore it seemeth that he loveth not his neighbour as himself, ne that he doth not as he would be done to, that offereth such danger to his neighbour, where he may well and conveniently keep it from him, if he will follow the order of the law; and it seemeth that he putteth himself wilfully in jeopardy that doth it, as it is written, Eccles. 3, Qui amat periculum in illo peribit, that is to say, he that loveth peril shall perish in it, and he that putteth his neighbour in peril to offend, putteth himself in the same, and so should he do, me seemeth, that would wilfully take the general issue, where he might conveniently have the special matter. And furthermore, it is no offence in princes and rulers to suffer contracts, and buying and, selling in markets and fairs, though both perjury and deceit should follow thereupon; because such contracts be necessary for the commonwealth: so it seemeth likewise, that there is no default in the party that pleadeth such a special matter, to avoid from his neighbour the danger of perjury, ne yet in the court, though they induce him to it, as they do sometime for the intent before rehearsed. And in like wise some will say, that if rulers of cities and commonalties sometime for the punishment of felons, murtherers, and such other offenders, will (to the intent they would have them confess the truth) say to them that be suspected, that they be informed of such certain defaults or misdemeanors in the offenders, and that they do to the intent to have them confess the truth, that though they were not so informed, that yet it is no offence to say they were so informed, because they do it for the commonwealth: for if offenders were suffered to go unpunished, the commonwealth would eftsoons decay and utterly perish.

Doct. I will take advisement upon thy reason in this matter till another season, and I will now ask thee another question somewhat like unto this: I pray thee let me hear thy mind therein.

Stud. Let me hear thy question, and I shall with goodwill say as I think therein.