Bracton: Thorne Edition: English. Volume 2, Page 339

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Volume 2, Page 339

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[001] [it is treasure when] while engaged in one thing fortune has given him another.]¹
[002] [because] though treasure is no one's property and belonged in times past to the
[003] finder by the law of nature, it is now the property of the lord king by the jus gentium.²
[004] There are other things said to be res nullius, as wreck of the sea [and] great fish, as
[005] the sturgeon and the whale, [and others [said] to have no owner, as stray animals
[006] which no one pursues, claims or avows,] which belong to the lord king because of
[007] his privilege³ or to those to whom the king has granted such liberty. We thus must
[008] see what ought to be termed wreck.

What wreck is; and concerning great fish, that is, sturgeon and whale.

[010] [It is clear that quasi-abandoned property may [not] be called wreck, as where
[011] something has been thrown from a ship to lighten it,⁴ [but what has been thrown]
[012] with no intention of retaining or reclaiming it may properly be called wreck since
[013] the thing cast away is taken as abandoned.] [Whether a thing has been abandoned
[014] or not may be ascertained by presumptions, as where a book has been cast aside,
[015] whether it is found shut or open, when it might easily be shut, and so of similar
[016] objects.] ⁵ If a ship is broken and no living soul escapes from it that may properly be
[017] called wreck, [especially if the owner has drowned,⁶ ⁷because the true owner, coming
[018] from afar, [may prove] by certain proofs and signs that the things are his, as where
[019] a dog is found alive and it can be established that he is its master; it will be presumed
[020] that he is also the owner of the things, and so if certain marks have been placed
[021] on the wares and goods.]⁸ ⁹and everything from it that reaches the land will belong
[022] to the lord king, nor may anyone other than the king claim or have anything
[023] therefrom, though he possesses an estate near the sea-shore, unless he enjoys the
[024] special privilege of having wreck.¹⁰ This is so if the goods are found on the sea-shore,
[025] and the same is true if they are found close to the shore, or far out at sea provided
[026] it can be proved that they would have landed on the shore. But what if they are
[027] found at sea so far from the shore that where they would have landed, in what
[028] territory or district, cannot be established? Everything so found will then be the
[029] property of the finder, [it is said to be res nullius; sailors call it ‘lagan;’]¹¹ because
[030] there is no one, the king no more than any private person, who may have a privilege
[031] therein, because of the uncertain outcome. With respect to sturgeon the practice
[032] is for the king to have it entire because of his

Notes

1. D. 41.1.63.3: ‘nemo enim servorum opera thensaurum quaerit nec eapropter tunc terram fodiebat, sed alii rei operam insumebat et fortuna aliud dedit.’

2. Supra 41, 47, 58

3. Supra 47, 58, 167, 293

4. Goods abandoned for lightening a ship are not derelict: Inst. 2.1, 47-8, D. 41.1.9.8, 41.2.21.1, 2; supra 129, 167; cf. Guterbock 104 n.

5. Section begins here

6. ‘et maxime . . . fuerit,’ from line 17

7-8. ‘[quia] verus dominus . . . et rebus,’ from lines 21-5; om: ‘Et quod huiusmodi . . . sit quod,’ redactor's introductory phrase

9-10. ‘et quidquid ... privilegio,’ from lines 17-20; supra 58, 167

11. ‘maris laganum,’ Leg. Henr. 10.1: Liebermann, i, 556