The Doctor and Student (1518)

Christopher St. Germain

The fourth question of the doctor, of the wreck of the sea

Doct. I pray thee let me now hear thy mind how the law of England concerning goods that be wrecked upon the sea may stand with conscience, for I am in great doubt of it.

Stud. I pray thee let me first hear thine opinion, what thou thinkest therein.

Doct. The statute of West. I, that speaketh of wrecks is, That if any man, dog, or cat, come alive unto the land out of a ship, or barge, that it shall not be judged for wreck so that if the party to whom the goods belong come within a year and a day, and prove them to be his, that he shall have them; or else that they shall remain to the king. And methinketh that the said statute standeth not with conscience; for there is no lawful cause why the party ought to forfeit his goods, ne the king or lords ought to have them, for there is no cause of forfeiture in the party, but rather a cause of sorrow or heaviness; and so the law seemeth to add sorrow upon sorrow. And therefore doctors hold commonly that he that hath such goods is bound to restitution, and that no custom may help; for they say it is against the commandment of God, Levit. I9, where it is commanded, that a man shall love his neighbour as himself, and that they say he doth not that taketh away his neighbour’s goods. But they agree, that if any man have cost and labour for the saving of such goods wrecked, specially for such goods as would perish if they lay still in the water, as sugar, paper, salt, meal, and such others, that he ought to be allowed for his costs and labour, but he must restore the goods, except he could not save them without putting his life in jeopardy for them; and then if he put his life in such jeopardy, and the owner by common presumption had had no way to have saved them, then it is most commonly holden that he may keep the goods in conscience. But of other goods that would not so lightly perish, but that the owner might of common presumption save them himself, or that might be saved without any peril of life, the takers of them be bound to restitution to the owner, whether he come within the year, or after the year. And methinketh this case is somewhat like to a case that I shall put. If there were a law and custom in this realm, or if it were ordained by statute, that if any alien came through the realm in pilgrimage, and died, that all his goods should be forfeit; that law should be against conscience, for there is no cause reasonable why the said goods should be forfeit: and no more methinketh there is of wreck.

Stud. There be divers cases where a man shall leese his goods, and no default in him: as where beasts stray away from a man, and they be taken up, and proclaimed, and the owner hath not heard of them within the year and the day, though he made sufficient diligence to have heard of them; yet the goods be forfeited, and no default in him. And so it is where a man killeth another with the sword of John at Stile, the sword shall be forfeit as a deodand, and yet no default is in the owner. And so methinketh it may be in this case; and that sith the Common law, before the said statute, was, that the goods wrecked upon the sea shall be forfeit to the .king, that they be also forfeited now after the statute, except they be saved by following the statute; for the law must needs reduce the properties of all goods to some man; and when the goods be wrecked, it seemeth the property is in no man: but admit that the property remain still in the owner, then if the owner, percase, would never claim, then it should not be known who ought to have them, and so might they be destroyed, and no profit come of them: wherefore methinketh it reasonable that the law shall appoint who ought to have them, and that hath the law appointed to the king, as sovereign and head over the people.

Doct. In the cases that thou hast put before of the stray and deodand there be considerations why they be forfeit, but it is not so here: and methinketh that in this case, it were not unreasonable that the law would suffer any man that would take them, to take and keep them to the use of the owner, saving his reasonable expences; and this methinketh were more reasonable law, than to pull the property out of the owner without cause. But if a man in the sea cast his goods out of the ship as forsaken,, there doctors hold that every man may take them lawfully that will; but otherwise it is (as they say) if he throw them out for fear that they should overcharge the ship.

Stud. There is no such law in this realm of goods forsaken: for though a man waive the possession of his goods, and saith he forsaketh them, yet by the law of the realm the property remaineth still in him, and he may seise them after when he will. And if any man in the mean time put the goods in safeguard to the use of the owner, I think he doth lawfully, and that he shall be allowed for his reasonable expences in that behalf, as he shall be of goods found but he shall have no property in them, no more than in goods found. And I would agree, that if a man prescribe, that if he find any goods within his manor, that he should have them as his own, that that prescription were void for there is no consideration how the prescription might have a lawful beginning, but in this case methinketh there is.

Doct. What is that?

Stud. It is this: The king, of the old custom of the realm, as the lord of the narrow sea, is bound, as it is said, to scour the sea of the pirates and petit robbers of the sea and so it is read of the noble king Saint Edgar that he would twice in the year scour the sea of such pirates: but I mean not thereby that the king is bound to conduct his merchants upon the sea against all outward enemies, but that he is bound only to put away such pirates and petit robbers. And because that cannot be done without great charge, it is not unreasonable if he have such goods as be wrecked upon the sea toward the charge.

Doct. Upon that reason I will take a respite till another time.