The Doctor and Student (1518)

Christopher St. Germain

The second question of the student whether goods of outlaws be forfeit

Stud. If a man be outlawed, and never had knowledge of the suit, whether may the king take all his goods and retain them in conscience, as he may by the law?

Doct. What is the reason why they be forfeited by the law in that case?

Stud. The very reason is, for that it is an old custom, and an old maxim in the law, that he that is outlawed shall forfeit his goods to the king: and the cause why that maxim began was this, When a man had done a trespass to another, or another offence wherefore process of outlawry lay, and he that the offence was done to had taken an action against him according to the law, if he had absented himself, and had no lands, there had been no remedy against him: for, after the law of England no man shall be condemned without answer, or that he appear and will not answer, except it be by reason of any statute. Therefore, for the punishment of such offenders as will not appear to make answer, and to be justified in the king’s courts, hath been used, without time of mind, that an attachment in that case should be directed against him returnable in the King’s Bench or the Common Place: and if it were returned thereupon that he had nought whereby lie might be attached, that then should go forth a capias to take his person, and after an alias capias, and then a pluries; and if it were returned upon every of the said capias, that he could not be found, and he appeared not, then should an exigent be directed against him, which should have so long a day of return, that five counties might be holden before the return thereof, and in every of the said five counties the defendant to be solemnly called, and if he appeareth not, then, for his contumacy and disobedience of the law, the coroners to give judgment that he shall be outlawed, whereby he shall forfeit his goods to the king, and leese divers other advantages in the law, that needeth not here to be, remembered now. And so because he was in this ,case called according to the law, and appeared not, it seemeth that the king hath good title to the goods both in law and conscience.

Doct. If he had knowledge of the suit in very deed, it seemeth the king hath good title in conscience, as thou sayeth. But if he had no knowledge thereof, it seemeth not so; for the default that is adjudged in him (as appeareth by thine own reason) is his contumacy and disobedience of the law, and if he were ignorant of the suit, then there can be assigned to him no disobedience, for a disobedience implieth a knowledge of that he should have obeyed unto.

Stud. It seemeth in this case that he should be compelled to take knowledge of this suit at his peril: for sith he hath attempted to offend the law, it seemeth reason that he shall be compelled to take heed what the law will do against him for it; and not only that, but that he should rather offer amends for his trespass, than to tarry till he were sued for it. And so it seemeth the ignorance of the suit is of his own default, specially sith in the law is set such order that every man may know, if he will, what suit is taken against him, and may see the records thereof when he will: and so it seemeth that neither the party nor the law be not bounden to give him no knowledge therein. And over this I would somewhat move farther in this matter thus: that though that action were untrue, and the defendant not guilty, that yet the goods be forfeited to the king, for his not appearance, in law, and also in conscience, and that for this cause: the king, as sovereign and head of the law, is bounden of justice to grant such writs, and such processes, as be appointed in the law to every person that will complain, be his surmise true or false; and thereupon the king (of justice) oweth as well to make process to bring the defendant to answer when he is not guilty, as when he is guilty: and then when there is a maxim in the law, that if a man be outlawed, in such manner as before appeareth, that lie shall forfeit all his goods to the king, and maketh no exception whether the action be true or untrue, it seemeth that the said maxim more regardeth the general ministration of justice, than the particular right of the party, and therefore the property by the outlawry, and by the said maxim ordained for ministration of justice is altered, and is given to the king, as before appeareth, and that both in law and in conscience, as well as if the action were true. And then the party that is so outlawed is driven to sue for his remedy against him that hath so caused him to be outlawed upon an untrue action.

Doct. If he hath not sufficient to make him recompence, or die before recovery can be had, what remedy is had then?

Stud. I think no remedy: and for a farther declaration in this case, and in such other like cases, where the property of goods may be altered without consent of the owner, it is to consider, that the property of goods is not given to the owners directly by the law of reason, nor by the law of God, but by the law of man, and is suffered by the law of reason, and by the law of God so to be. For at the beginning all goods were in common, but after they were brought by the law of man into a certain property, so that every man might know his own: and then when such property is given by the law of man, the same law may assign such conditions upon the property as it listeth, so they be not against the law of God, ne the law of reason, and may lawfully take away that it giveth, and appoint how long the property shall continue. And one condition that goeth with every property in this realm, is, If he that hath the property be outlawed according to such process as is ordained by the law, that he shall forfeit the property unto the king. And divers other cases there be also, whereby property in goods shall be altered in the law, and the right in lands also, without assent of the owner, whereof I shall shortly touch some without saying any authority therein, for the more shortness. First, By a sale in open market the property is altered. Also goods stolen and seised for the king, or waived, be forfeit, unless appeal or indictment be sued. Also strays, if they be proclaimed, and be not after claimed by the owner within the year, be forfeit; and also a deodand is forfeit (to whomsoever the property was before, except it belonged to the king) and shall be disposed for the soul of him that was slain therewith; and a fine with a nonclaim at the Common law was a bar, if claim were not made within a year, as it is now by statute if the claim be not made within five years. And all these forfeitures were ordained by the law upon certain considerations, which I omit at this time: but certain it is that none of them were made upon a better consideration than this forfeiture of utlagary was. For if no especial punishment should have been ordained for offenders that would absent themselves, and not appear when they were sued in the king’s courts, many suits in the king’s courts should have been of small effect. And sith this maxim was ordained for the execution of justice, and as much done therein by the common law as policy of man could reasonably devise, to make the party have knowledge of the suit, and now is added thereto by the statute made the sixth year of H. VIII, that a writ of proclamation shall be sued if the party be dwelling in another shire: it seemeth that such title, as is given to the king thereby, is good in conscience, especially seeing that the king is bound to make process upon the surmise of the plaintiff, and may not examine, but by plea of the party, whether the surmise be true or not. But if the party be returned five times called, where indeed he was never called (as in the second case of the last chapter of the said dialogue in Latin is contained), then it seemeth the party shall have good remedy by petition to the king, specially if he that made the return be not sufficient to make recompence, or die before recovery can be had.

Doct. Now sith I have heard thine opinion in this case, whereby it appeareth that many things must be seen, or a full and plain declaration can be made in this behalf, and seeing also that the plain answer to this case shall give a great light to divers other cases that may come by such forfeiture: I pray thee give me a farther respite ere that I shew thee my full opinion therein, and hereafter I shall right gladly do it. And therefore I pray thee, proceed now to some other case.