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THE ARGUMENTS IN LAW,
SIR FRANCIS BACON, KNIGHT,
THE KING'S SOLICITOR-GENERAL,
IN CERTAIN GREAT AND DIFFICULT CASES.
TO MY LOVING FRIENDS AND FELLOWS,
READERS, ANCIENTS, UTTER-BARRISTERS, AND STUDENTS, OF GRAY’S-INN.
I do not hold the law of England in so mean an account, but that which other laws are held worthy of, should be due likewise to our laws, as no less worthy for our state. Therefore when I found that not only in the ancient times, but now at this day, in France, Italy, and other nations, the speeches, and, as they term them, pleadings, which have been made in judicial cases, where the cases were mighty and famous, have been set down by those that made them, and published ; so that not only a Cicero, a Demosthenes, or an Æschines, hath set forth his Orations, as well in the judicial as deliberative ; but a Marrian and a Pavier have done the like by their pleadings; I know no reason why the same should not be brought in use by the professors of our law for their arguments in principal cases. And this I think the more necessary, because the compendious form of reporting resolutions, with the substance of the reasons, lately used by Sir Edward Coke, lord chief justice of the king's bench, doth not delineate or trace out to the young practisers of law a method and form of argument for them to imitate. It is true I could have wished some abler person had begun; but it is a kind of order sometimes to begin with the meanest. Nevertheless, thus much I may say with modesty, that these arguments which I have set forth, most of them, are upon subjects not vulgar; and therewithal, in regard of the commixture, which the course of my life hath made of law with other studies, they may have the more variety, and perhaps the more depth of reason : for the reasons of municipal laws, severed from the grounds of nature, manners, and policy, are like wall. flowers, which though they grow high upon the crests of states, yet they have no deep root: besides, in all public services I ever valued my reputation more than my pains ; and therefore in weighty causes I always used extraordinary diligence; in all which respects I persuade myself the reading of them will not be unprofitable. This work I knew not to whom to dedicate, rather than to the Society of Gray's Inn, the place whence my father was called to the highest place of justice, and where myself have lived and had my procedure so far, as by his Majesty's rare if not singular grace, to be of both his councils : and therefore few men, so bound to their societies by obligation, both ancestral and personal, as I am to yours ; which I would gladly acknowledge, not only in having your name joined with mine own in a book, but in any other good office and effect which the active part of my life and place may enable me unto toward the Society, or any of you in particular. And so I bid you right heartily farewell.
Your assured loving friend and fellow,
CASE OF IMPEACHMENT OF WASTE,
ARGUED BEFORE ALL THE JUDGES
IN THE EXCHEQUER CHAMBER.
The case needs neither repeating nor opening. Secondly, That the sense which we conceive and The point is in substance but one, familiar to be put, give, is natural in respect of the words; and for the but difficult to be resolved ; that is, Whether, upon matter agreeable to reason and the rules of law. a lease without impeachment of waste, the property And lastly, That if the interpretation seem ambiof the timber-trees, after severance, be not in him guous and doubtful, yet the very mischief itself, and that is owner of the inheritance ?
consideration of the commonwealth, ought rather to The case is of great weight, and the question of incline your lordship's judgment to our construction, great difficulty : weighty it must needs be, for that it doth concern, or may concern, all the lands in My first assertion therefore is, that a timber-tree England ; and difficult it must be, because this ques- is a solid parcel of the inheritance; which may seem tion sails in confluentiis aquarum, in the meeting or a point admitted, and not worth the labouring. But strife of two great tides. For there is a strong cur there is such a chain in this case, as that which rent of practice and opinion on the one side, and seemeth most plain, if it is sharply looked into, doth there is a more strong current, as I conceive, of au-invincibly draw on that which is most doubtful. For thorities, both ancient and late, on the other side. if the tree be parcel of the inheritance unsevered, And therefore, according to the reverend custom of inherent in the reversion, severance will not alien it, the realm, it is brought now to this assembly ; and nor the clause will not divest it. it is high time the question receive an end, the law To open therefore the nature of an inheritance: a rule, and men's conveyances a direction.
sense teacheth there be, of the soil and earth, parts This doubt ariseth and resteth upon two things that are raised and eminent, as timber-trees, rocks, to be considered; first, to consider of the interest houses. There be parts that are sunk and depressed, and property of a timber-tree, to whom it belongeth: as mines, which are called by some arbores subterand secondly, to consider of the construction and ranece, because that as trees have great branches and operation of these words or clause, absque impeti- smaller boughs and twigs, so have they in their retime vasti: for within these two branches will aptly gion greater and smaller veins: so if we had in fall whatsoever can be pertinently spoken in this England beds of porcelane, such as they have in question, without obscuring the question by any which porcelane is a kind of a plaster buried in the other curious division.
earth, and by length of time congealed and glazed For the first of these considerations, which is the into that fine substance; this were as an artificial interest or property of a timber-tree, I will maintain mine, and no doubt part of the inheritance. Then and prove to your lordships three things.
are there the ordinary parts, which make the mass First, That a timber-tree, while it groweth, is of the earth, as stone, gravel, loam, clay, and the like. merely parcel of the inheritance, as well as the soil Now as I make all these much in one degree, so itself.
there is none of them, not timber-trees, not quarries, And, secondly, I will prove, that when either na not minerals or fossils, but hath a double nature; ture, or accident, or the hand of man hath made it inheritable and real, while it is contained within the transitory, and cut it off from the earth, it cannot mass of the earth; and transitory and personal, change the owner, but the property of it goes where when it is once severed. For even gold and prethe inheritance was before. And thus much by the cious stone, which is more durable out of earth than rules of the common law.
any tree is upon the earth; yet the law doth not And, thirdly, I will show that the statute of Glou hold of that dignity as to be matter of inheritance if cester doth rather corroborate and confirm the pro- it be once severed.
And this is not Nevil's case perty in the lessor, than alter it, or transfer it to the because it becometh movable, for there proving there lessee.
be movable inheritances, as villains in And for the second consideration, which is the gross, and dignities which are judged force of that clause, absque impetitione vasti, I will hereditaments ; but because by their severance they also uphold and make good three other assertions. lose their nature of perpetuity, which is of the es
First, That if that clause should be taken in the sence of an inheritance. sense which the other side would force upon it, that And herein I do not a little admire it were a clause repugnant to the estate and void. the wisdom of the laws of England, and the law with
ances which are not local.
The consent of
The statute of
philosophy in the consent which they have with the that the waste is laid to be ad eahære- poseth the fell. distinguishing
ing timber to between per wisdom of philosophy and nature itself : dationem, which presupposeth herædi- be ad exharepetual and transitory.
dationem. for it is a maxim in philosophy, that tatem ; for there cannot be a disinhe
“in regione elementari nihil est æter rison by the cutting down of the tree, except there num, nisi per propagationem speciei, aut per succes was an inheritance in the tree, “ quia privatio prasionem partium.”
supponit actum.” And it is most evident, that the elements them Again it appeareth out of the words selves, and their products, have a perpetuity not in of the statute of Gloucester, well ob- Gloucester, individuo, but by supply and succession of parts. served, that the tree and the soil are
quod recuperet For example, the vestal fire, that was nourished by one entire thing, for the words are not locum vasthe virgins at Rome, was not the same fire still, but quod recuperet rem vastatam ;" and was in perpetual waste, and in perpetual renovation. yet the books speak, and the very judgment in waste So it is of the sea and waters, it is not the same is, “quod recuperet locum vastatam,” which shows, water individually, for that exhales by the sun, and that res and locus are in exposition of law taken is fed again by showers. And so of the earth itself, indifferently; for the lessor shall not recover only and mines, quarries, and whatsoever it containeth, the stem of the tree, but he shall recover the very they are corruptible individually, and maintained soil, whereunto the stem continues. And therefore only by succession of parts, and that lasteth no it is notably ruled in 22 H. VI. f. 13,
22 H. 6. f. 13. longer than they continue fixed to the main and that if the terminor do first cut down mother globe of the earth, and is destroyed by their the tree, and then destroy the stem, the lessor shall separation.
declare upon two several wastes, and recover treble According to this I find the wisdom of the law, damages for them severally. But, says the book, by imitation of the course of nature, to judge of in he must bring but one writ, for he can recover the heritances and things transitory; for it alloweth no place wasted but once. portions of the earth, no stone, no gold, no mineral, And farther proof may be fitly no tree, no mould, to be longer inheritance than they alleged out of Mullin's case in the adhere to the mass, and so are capable of supply in commentaries, where it is said, that for timber trees their parts: for by their continuance of body stands tithes shall not be paid. And the reason of the their continuance of time.
book is well to be observed ; " for that tithes are to Neither is this matter of discourse, except the be paid for the revenue of the inheritance, and not deep and profound reasons of law, which ought for the inheritance itself.” chiefly to be searched, shall be accounted discourse, Nay, my lords, it is notable to consider what a as the slighter sort of wits, Scioli, may esteem them. reputation the law gives to the trees, even after they
And therefore now that we have opened the na are severed by grant, as may be plainly inferred out ture of inheritable and transitory, let us see, upon a of Herlackenden's case, L. Coke, p. 4,
Co. p. 4. f. 62. division of estates, and before severance, what kind f. 62. I mean the principal case ; of interests the law allotteth to the owner of inherit where it is resolved, that if the trees being excepted ance, and what to the particular tenant; for they be out of a lease granted to the lessee, or if the grantee competitors in this case.
of trees accept a lease of the land, the property of The consent of First, In general the law doth assign the trees drown not, as a term should drown in a
to the lessor those parts of the soil con freehold, but subsist as a chattel divided; which
joined, which have obtained the reputa- shows plainly, though they be made transitory, yet guishing be kween inherit- tion to be durable, and of continuance, they still to some purpose savour of the inheritance: ance and par. and such as being destroyed, are not for if you go a little farther, and put the case of a which hath re. but by long time renewed; and to the state tail, which is a state of inheritance, then I lation to their terminors it assigneth such interests as division of do
think clearly they are re-annexed. But on the other are tender and feeble against the force side, if a man buy corn standing upon the ground, usus-fructus.
of time, but have an annual or season and take a lease of the same ground, where the corn able return or revenue. And herein it consents again stands, I say plainly it is re-affixed, for “ paria copuwith the wisdom of the civil law; for our inherit- lantur cum paribus.” ance and particular estate is in effect their dominium And it is no less worthy the note, what an operand usus-fructus; for so it was conceived upon the ation the inheritance leaveth behind it in matter of
ancient statute of depopulations, 4 Hen. waste, even when it is gone, as appeareth in the Owner in the VII. which was penned, “ that the case of tenant after possibility, who shall not be
owner of the land should re-edify the punished : for though the new reason be, because houses of husbandry,” that the word owner, which his estate was not within the statute of Gloucester ; answereth to dominus, was he that had the imme- yet I will not go from my old master Littleton's diate inheritance; and so ran the later statutes. reason, which speaketh out of the depth of the comLet us see therefore what judgment the law maketh mon law, he shall not be punished " for the inheritof a timber-tree; and whether the law doth not ance' sake which was once in him.” place it within the lot of him that hath the inherit But this will receive a great deal of illustration, ance as parcel thereof.
by considering the terminor's estate, and the nature First, It appeareth by the register thereof, which was well defined by Mr. Heath, who The writ of
out of the words of the writ of waste, spake excellent well to the case, that it is such as he
the law with the civil law in the distin
of the word
ought to yield up the inheritance in as good plight | ascribing to permanent states permanent interest,
as he received it; and therefore the and to transitory states transitory interest ; and tion and force word firmarius, which is the word of you cannot alter this order of law by fancies of
the statute of Marlebridge, cometh, as clauses and liberties, as I will tell you in the profirmarius.
I conceive, a firmando; because he per place. makes the profit of the inheritance, which other And therefore the tree standing belongs clearly wise should be upon account, and uncertain, firm to the owner of the inheritance. and certain ; and accordingly feodi firma, fee-farm, Now I come to my second assertion, that by the is a perpetuity certain. Therefore the nature and severance the ownership or property cannot be alterlimit of a particular tenant is to make the inheritance ed; but that he that had the tree as part of the certain, and not to make it worse.
inheritance before, must have it as a chattel transi. 1. Therefore he cannot break the soil otherwise tory after. This is pregnant and followeth of itself, than with his ploughshare to turn up perhaps a for it is the same tree still, and, as the Scripture stone, that lieth aloft; his interest is in superficie, saith, “ uti arbor cadet, ita jacet.” not in profundo, he hath but tunicam terre, little The owner of the whole must needs own the parts; more than the vesture.
he that owneth the cloth owneth the thread, and he If we had fir-timber here, as they have in Mus-that owneth an engine when it is entire, owneth covy, he could not pierce the tree to make the pitch the parts when it is broken; breaking cannot alter come forth, no more than he may break the earth. property.
So we see the evidence, which is And therefore the book in HerlackThe evidence
propugnaculum hæreditatis, the fortress enden's case doth not stick to give it Herlackenlum haredita- and defence of the land, belongeth not somewhat plain terms; and to say that
to the lessee, but to the owner of the it were an absurd thing, that the lease which hath inheritance.
a particular interest in the land, should have abso So the lessee's estate is not accounted lute property in that which is part of the inheritHomage importeth con of that dignity, that it can do homage, ance : you would have the shadow draw the body, tinuance in
because it is a badge of continuance in and the twigs draw the trunk. These are truly Particular the blood of lord and tenant. Neither called absurdities. And therefore in a conclusion seigniories for my own opinion can a particular so plain, it shall be sufficient to vouch the authorishall not have tenant of a manor have aid “ pour file ties without enforcing the reasons.
marier, ou pour faire fitz chevalier;" And although the division be good, that was made because it is given by law upon an intendment of by Mr. Heath, that there be four manners of serecontinuance of blood and privity between lord and rances, that is, when the lessee fells the tree, or tenant.
when the lessor fells it, or when a stranger fells it; And for the tree, which is now in question, do or when the act of God, a tempest, fells it; yet this but consider in what a revolution the law moves, division tendeth rather to explanation than to proof, and as it were in an orb: for when the tree is young and I need it not, because I do maintain that in all and tender, germen terre, a sprout of the earth, the these cases the property is in the lessor. law giveth it to the lessee, as having a nature not And therefore I will use a distribu
Three arsopermanent, and yet easily restored : when it comes tion which rather presseth the proof. ments of pro to be a timber-tree, and hath a nature solid and dur- The question is of property. There be per citur able, the law carrieth it to the lessor. But after three arguments of property; damages, and power to
grant. again if it become a sear and a dotard, and its solid seisure, and grant: and according to parts grow putrefied, and, as the poet saith, “non these I will examine the property of the trees Ly jam mater alit tellus, viresque ministrat," then the the authority of books. law returns it back to the lessee. This is true jus And first for damages. tice, this is suum cuique tribuere; the law guiding all For damages, look into the books of the law, and things with line of measure and proportion. you shall not find the lessee shall ever recover dam
And therefore that interest of the ages, not as they are a badge of property ; for the The phrase
lessee in the tree, which the books call damages, which he recovereth, are of two natures, see hatha spe- a special property, is scarce worth that either for the special property, as they call it, or as property
name. He shall have the shade, so he is chargeable over. And for this, to avoid length, very impro
shall he have the shade of a rock; but I will select three books; one where the lessee shall hath but the he shall not have a crystal or Bristol recover treble damages; another where he shall profits of the
diamond growing upon the rock. He recover but for his special property; and the third
shall have the pannage; why ? that is where he shall recover for the body of the tree, the fruit of the inheritance of a tree, as herb or grass which is a special case, and standeth merely upon a is of the soil. He shall have seasonable loppings; special reason. why ? so he shall have seasonable diggings of an The first is the book of 44 E. III. f.
44 E 3 [ 27. open mine. So all these things are rather profits 27, where it is agreed, that if tenant for of the tree, than any special property in the tree. life be, and a disseisor commit waste, the lessee But about words we will not differ.
shall recover in trespass as he shall answer in So as I conclude this part, that the reason and waste; but that this is a kind of recovery of damages, wisdom of law doth match things, as they consort, though per accidens, may appear plainly.
that the les
in the tree,
per; for he
38 Ass. f. 1.
9 E. 4. f. 35.
5 E. 4. f. 100.
For if the lessor die, whereby his action is gone, So again in 2. H. VII, the words of
2 H. 7. f. 14. then the disseisor is likewise discharged, otherwise Brian are, that for the timber-trees the than for the special property.
lessor may take them ; for they are his; and seemeth The second book is 9 E. IV. f. 35, to take some difference between them and the gravel. 9 E. 4. 1. 35.
where it is admitted, that if the lessor The like reason is of the timber of himself cut down the tree, the lessee shall recover
34 E. 3. f. 5.
an house, as appears 34 E. III, f. 5, but for his special profit of shade, pannage, loppings, abridged by Brook, tit. waste, pl. 34, when it is said, because he is not charged over.
it was doubted who should have the timber of a The third is 44 E. III. f. 44, where house which fell by tempest; and saith the book, it 44 E. 3. f. 44.
it is said, that if the lessee fell trees to seems it doth appertain to the lessor; and good repair the barn, which is not ruinous in his own de- reason, for it is no waste, and the lessee is not bound fault, and the lessor come and take them away, he to re-edify it: and therefore it is reason the lessor shall have trespass, and in that case he shall recover have it ; but Herlackenden's case goes farther, where for the very body of the tree, for he hath an abso- it is said that the lessee may help himself with the lute property in them for that intent.
timber, if he will re-edify it; but clearly he hath And that it is only for that intent ap no interest but towards a special employment.
peareth notably by the book 38 Ass. f. Now you have had a case of the timber-tree, and 1. If the lessee after he hath cut down the tree of the timber of the house, now take a case of the employ it not to reparations, but employ other trees mine, where that of the tree is likewise put, and of better value, yet it is waste; which showeth that is 9 E. IV. f. 35, where it is plainly the property is respective to the employment. said by Needham, that if a lease be
Nay, 5 E. IV. f. 100, goeth farther, made of land wherein there is tin, or iron, or lead,
and showeth, that the special property or coals, or quarry, and the lessor enter and take which the lessee had was of the living tree, and de- the tin or other materials, the lessee shall punish termines, as Herlackenden's case saith by sever him for coming upon his land, but not for taking of ance; for then“ magis dignum trahit ad se minus the substances. And so of great trees; but Danby dignum :" for it saith, that the lessee cannot pay the goes farther, and saith, the law that gives him the workmen's wages with those parts of the tree which thing, doth likewise give him means to come by it; are not timber. And so I leave the first demonstra- but they both agree that the interest is in the lessor. tion of property, which is by damages; except you | And thus much for the seisure.
will add the case of 27 H. VIII. f. 13, For the grant; it is not so certain a badge of 27 H. 8. f. 13.
where it is said, that if tenant for life property as the other two; for a man may have a and he in the reversion join in a lease for years, property, and yet not grantable, because it is turned and lessee for years fell timber-trees, they shall join into a right, or otherwise suspended. And therefore in an action of waste ; but he in the reversion shall it is true, that by the book in 21 H. VI. that if the recover the whole damages: and great reason, for lessor grant the trees, the grantee shall not take the special property was in the lessee for years, the them, no not after the lease expired; because this general in him in the reversion, so the tenant for property is but de futuro, expectant; but 'tis as life meane had neither the one nor the other. plain on the other side that the lessee cannot grant
Now for the seisure, you may not look for plenti-them, as was resolved in two notable cases, namely, ful authority in that: for the lessor, which had the the case of Marwood and Sanders, 41 more beneficial remedy by action for treble damages, El. in communi banco; where it was had little reason to resort to the weaker remedy by ruled, that the tenant of the inheritance seisure, and leases without impeachment were then may make a feoffment with exception of timberrare, as I will tell you anon. And therefore the trees; but that if lessee for life or years set over his question of the seisure came chiefly in experience estate with an exception of the trees, the exception upon the case of the windfalls, which could not be is utterly void; and the like resolution was in the punished by action of waste.
case between Foster and Mills plaintiff, Foster and First, therefore, the case of 40 E. and Spencer and Boord defendant, 28 Spencer's 40 E. 3. pl. 22.
III. pl. 22, is express, where at the Eliz, rot. 820. king's suit, in the behalf of the heir of Darcy who Now come we to the authorities, which have an was in ward, the king's lessee was questioned in appearance to be against us, which are not many, waste, and justified the taking of the trees, because and they be easily answered, not by distinguishing they were overthrown by winds, and taken away by subtilly, but by marking the books advisedly. a stranger. But Knevet saith, although one be 1. There be two books that seem to guardian, yet the trees, when by their fall they are cross the authorities touching the inter. 7 H. 6.44 E. 3. severed from the freehold, he hath no property of est of the windfalls, 7 H. VI. and 44 E. the chattels, but they appertain to the heir, and the III. f. 44, where, upon waste brought and assigned in heir shall have trespass of them against a stranger, the succision of trees, the justification is, that they and not the guardian, no more than the bailiff of a were overthrown by wind, and so the lessee took minor. So that that book rules the interest of the them for fuel, and allowed for a good plea ; but tree to be in the heir, and goes to a point farther, these books are reconciled two ways : first, look into that he shall have trespass for them; but of seisure both the justifications, and you shall find that the there had been no question.
plea did not rely only in that they were windfalls,