philosophy in the consent which they have with the distinguishing between perwisdom of philosophy and nature itself: petual and for it is a maxim in philosophy, that transitory. "in regione elementari nihil est æternum, nisi per propagationem speciei, aut per successionem partium."

And it is most evident, that the elements themselves, and their products, have a perpetuity not in individuo, but by supply and succession of parts. For example, the vestal fire, that was nourished by the virgins at Rome, was not the same fire still, but was in perpetual waste, and in perpetual renovation. So it is of the sea and waters, it is not the same water individually, for that exhales by the sun, and is fed again by showers. And so of the earth itself, and mines, quarries, and whatsoever it containeth, they are corruptible individually, and maintained only by succession of parts, and that lasteth no longer than they continue fixed to the main and mother globe of the earth, and is destroyed by their separation.

According to this I find the wisdom of the law, by imitation of the course of nature, to judge of inheritances and things transitory; for it alloweth no portions of the earth, no stone, no gold, no mineral, no tree, no mould, to be longer inheritance than they adhere to the mass, and so are capable of supply in their parts for by their continuance of body stands their continuance of time.

Neither is this matter of discourse, except the deep and profound reasons of law, which ought chiefly to be searched, shall be accounted discourse, as the slighter sort of wits, Scioli, may esteem them. And therefore now that we have opened the nature of inheritable and transitory, let us see, upon a division of estates, and before severance, what kind of interests the law allotteth to the owner of inheritance, and what to the particular tenant; for they be competitors in this case.

The consent of the law with the civil law in the distinguishing between inherit

ance and par

ticular estates, which hath re

First, In general the law doth assign to the lessor those parts of the soil conjoined, which have obtained the reputation to be durable, and of continuance, and such as being destroyed, are not but by long time renewed; and to the lation to their terminors it assigneth such interests as are tender and feeble against the force usus-fructus. of time, but have an annual or seasonable return or revenue. And herein it consents again with the wisdom of the civil law; for our inheritance and particular estate is in effect their dominium and usus-fructus; for so it was conceived upon the

division of dominium and

ing timber to

dationem.

that the waste is laid to be ad exhære- poseth the felldationem, which presupposeth herædi- be ad exhæretatem; for there cannot be a disinherison by the cutting down of the tree, except there was an inheritance in the tree, "quia privatio præsupponit actum."

rem vastatam,

tatam.

Again it appeareth out of the words The statute of of the statute of Gloucester, well ob- Gloucester, served, that the tree and the soil are quod recuperet one entire thing, for the words are not locum vas"quod recuperet rem vastatam;" and yet the books speak, and the very judgment in waste is, " 'quod recuperet locum vastatam," which shows, that res and locus are in exposition of law taken indifferently; for the lessor shall not recover only the stem of the tree, but he shall recover the very soil, whereunto the stem continues. And therefore it is notably ruled in 22 H. VI. f. 13, that if the terminor do first cut down the tree, and then destroy the stem, the lessor shall declare upon two several wastes, and recover treble damages for them severally. But, says the book, he must bring but one writ, for he can recover the place wasted but once.

22 H. 6. f. 13.

And farther proof may be fitly Mullin's case. alleged out of Mullin's case in the commentaries, where it is said, that for timber-trees tithes shall not be paid. And the reason of the book is well to be observed; "for that tithes are to be paid for the revenue of the inheritance, and not for the inheritance itself."

Nay, my lords, it is notable to consider what a reputation the law gives to the trees, even after they are severed by grant, as may be plainly inferred out of Herlackenden's case, L. Coke, p. 4, Co. p. 4. f. 62. f. 62. I mean the principal case; where it is resolved, that if the trees being excepted out of a lease granted to the lessee, or if the grantee of trees accept a lease of the land, the property of the trees drown not, as a term should drown in a freehold, but subsist as a chattel divided; which shows plainly, though they be made transitory, yet they still to some purpose savour of the inheritance: for if you go a little farther, and put the case of a state tail, which is a state of inheritance, then I think clearly they are re-annexed. But on the other side, if a man buy corn standing upon the ground, and take a lease of the same ground, where the corn stands, I say plainly it is re-affixed, for "paria copulantur cum paribus."

And it is no less worthy the note, what an operation the inheritance leaveth behind it in matter of waste, even when it is gone, as appeareth in the case of tenant after possibility, who shall not be punished: for though the new reason be, because his estate was not within the statute of Gloucester; yet I will not go from my old master Littleton's reason, which speaketh out of the depth of the common law, he shall not be punished" for the inheritance' sake which was once in him.”

But this will receive a great deal of illustration, by considering the terminor's estate, and the nature thereof, which was well defined by Mr. Heath, who spake excellent well to the case, that it is such as he

The deriva

tion and force

of the word firmarius.

ought to yield up the inheritance in as good plight as he received it; and therefore the word firmarius, which is the word of the statute of Marlebridge, cometh, as I conceive, a firmando; because he makes the profit of the inheritance, which otherwise should be upon account, and uncertain, firm and certain; and accordingly feodi firma, fee-farm, is a perpetuity certain. Therefore the nature and limit of a particular tenant is to make the inheritance certain, and not to make it worse.

1. Therefore he cannot break the soil otherwise than with his ploughshare to turn up perhaps a stone, that lieth aloft; his interest is in superficie, not in profundo, he hath but tunicam terræ, little more than the vesture.

If we had fir-timber here, as they have in Muscovy, he could not pierce the tree to make the pitch come forth, no more than he may break the earth. | So we see the evidence, which is propugnaculum hæreditatis, the fortress lum hæredita and defence of the land, belongeth not to the lessee, but to the owner of the

The evidence propugnacu

tis.

And for the tree, which is now in question, do but consider in what a revolution the law moves, and as it were in an orb: for when the tree is young and tender, germen terræ, a sprout of the earth, the law giveth it to the lessee, as having a nature not permanent, and yet easily restored: when it comes to be a timber-tree, and hath a nature solid and durable, the law carrieth it to the lessor. But after again if it become a sear and a dotard, and its solid parts grow putrefied, and, as the poet saith, non jam mater alit tellus, viresque ministrat," then the law returns it back to the lessee. This is true justice, this is suum cuique tribuere; the law guiding all things with line of measure and proportion.

The phrase that the les

see hath a special property in the tree, very improper; for he hath but the profits of the tree.

66

And therefore that interest of the lessee in the tree, which the books call a special property, is scarce worth that name. He shall have the shade, so shall he have the shade of a rock; but he shall not have a crystal or Bristol He diamond growing upon the rock. shall have the pannage; why? that is the fruit of the inheritance of a tree, as herb or grass is of the soil. He shall have seasonable loppings; why? so he shall have seasonable diggings of an open mine. So all these things are rather profits of the tree, than any special property in the tree. But about words we will not differ.

So as I conclude this part, that the reason and wisdom of law doth match things, as they consort,

ascribing to permanent states permanent interest, and to transitory states transitory interest; and you cannot alter this order of law by fancies of clauses and liberties, as I will tell you in the proper place.

And therefore the tree standing belongs clearly to the owner of the inheritance.

Now I come to my second assertion, that by the severance the ownership or property cannot be altered; but that he that had the tree as part of the inheritance before, must have it as a chattel transitory after. This is pregnant and followeth of itself, for it is the same tree still, and, as the Scripture saith, "uti arbor cadet, ita jacet."

The owner of the whole must needs own the parts; he that owneth the cloth owneth the thread, and he that owneth an engine when it is entire, owneth the parts when it is broken; breaking cannot alter property.

And therefore the book in Herlackenden's case doth not stick to give it Herlackensomewhat plain terms; and to say that

den's case.

it were an absurd thing, that the lease which hath a particular interest in the land, should have absolute property in that which is part of the inheritance: you would have the shadow draw the body, and the twigs draw the trunk. These are truly called absurdities. And therefore in a conclusion so plain, it shall be sufficient to vouch the authori ties without enforcing the reasons.

And although the division be good, that was made by Mr. Heath, that there be four manners of severances, that is, when the lessee fells the tree, or when the lessor fells it, or when a stranger fells it; or when the act of God, a tempest, fells it; yet this division tendeth rather to explanation than to proof, and I need it not, because I do maintain that in all these cases the property is in the lessor.

And first for damages.

and power to grant.

For damages, look into the books of the law, and you shall not find the lessee shall ever recover damages, not as they are a badge of property; for the damages, which he recovereth, are of two natures, either for the special property, as they call it, or as he is chargeable over. And for this, to avoid length, I will select three books; one where the lessee shall recover treble damages; another where he shall recover but for his special property; and the third where he shall recover for the body of the tree, which is a special case, and standeth merely upon a special reason.

For if the lessor die, whereby his action is gone, then the disseisor is likewise discharged, otherwise than for the special property.

The second book is 9 E. IV. f. 35, 9 E. 4. f. 35. where it is admitted, that if the lessor himself cut down the tree, the lessee shall recover but for his special profit of shade, pannage, loppings, because he is not charged over.

The third is 44 E. III. f. 44, where 44 E. 3. f. 44. it is said, that if the lessee fell trees to repair the barn, which is not ruinous in his own default, and the lessor come and take them away, he shall have trespass, and in that case he shall recover for the very body of the tree, for he hath an absolute property in them for that intent.

And that it is only for that intent ap38 Ass. f. 1. peareth notably by the book 38 Ass. f. 1. If the lessee after he hath cut down the tree employ it not to reparations, but employ other trees of better value, yet it is waste; which showeth plainly the property is respective to the employment. Nay, 5 E. IV. f. 100, goeth farther, 5 E. 4. f. 100. and showeth, that the special property which the lessee had was of the living tree, and determines, as Herlackenden's case saith by severance; for then " magis dignum trahit ad se minus dignum:" for it saith, that the lessee cannot pay the workmen's wages with those parts of the tree which are not timber. And so I leave the first demonstration of property, which is by damages; except you will add the case of 27 H. VIII. f. 13, 27 H. 8. f. 13. where it is said, that if tenant for life and he in the reversion join in a lease for years, and lessee for years fell timber-trees, they shall join in an action of waste; but he in the reversion shall recover the whole damages: and great reason, for the special property was in the lessee for years, the general in him in the reversion, so the tenant for life meane had neither the one nor the other.

Now for the seisure, you may not look for plentiful authority in that: for the lessor, which had the more beneficial remedy by action for treble damages, had little reason to resort to the weaker remedy by seisure, and leases without impeachment were then rare, as I will tell you anon. And therefore the question of the seisure came chiefly in experience upon the case of the windfalls, which could not be punished by action of waste.

First, therefore, the case of 40 E. 40 E. 3. pl. 22. III. pl. 22, is express, where at the king's suit, in the behalf of the heir of Darcy who was in ward, the king's lessee was questioned in waste, and justified the taking of the trees, because they were overthrown by winds, and taken away by a stranger. But Knevet saith, although one be guardian, yet the trees, when by their fall they are severed from the freehold, he hath no property of the chattels, but they appertain to the heir, and the heir shall have trespass of them against a stranger, and not the guardian, no more than the bailiff of a minor. So that that book rules the interest of the tree to be in the heir, and goes to a point farther, that he shall have trespass for them; but of seisure there had been no question.

2 H. 7. f. 14.

34 E. 3. f. 5.

So again in 2. H. VII. the words of Brian are, that for the timber-trees the lessor may take them; for they are his; and seemeth to take some difference between them and the gravel. The like reason is of the timber of an house, as appears 34 E. III. f. 5, abridged by Brook, tit. waste, pl. 34, when it is said, it was doubted who should have the timber of a house which fell by tempest; and saith the book, it seems it doth appertain to the lessor; and good reason, for it is no waste, and the lessee is not bound to re-edify it and therefore it is reason the lessor have it; but Herlackenden's case goes farther, where it is said that the lessee may help himself with the timber, if he will re-edify it; but clearly he hath no interest but towards a special employment.

9 E. 4. f. 35.

Now you have had a case of the timber-tree, and of the timber of the house, now take a case of the mine, where that of the tree is likewise put, and that is 9 E. IV. f. 35, where it is said by Needham, that if a lease be made of land wherein there is tin, or iron, or lead, or coals, or quarry, and the lessor enter and take the tin or other materials, the lessee shall punish him for coming upon his land, but not for taking of the substances. And so of great trees; but Danby goes farther, and saith, the law that gives him the thing, doth likewise give him means to come by it; but they both agree that the interest is in the lessor. And thus much for the seisure.

For the grant; it is not so certain a badge of property as the other two; for a man may have a property, and yet not grantable, because it is turned into a right, or otherwise suspended. And therefore it is true, that by the book in 21 H. VI. that if the lessor grant the trees, the grantee shall not take them, no not after the lease expired; because this property is but de futuro, expectant; but 'tis as plain on the other side that the lessee cannot grant them, as was resolved in two notable cases, namely, the case of Marwood and Sanders, 41 El. in communi banco; where it was ruled, that the tenant of the inheritance may make a feoffment with exception of timbertrees; but that if lessee for life or years set over his estate with an exception of the trees, the exception is utterly void; and the like resolution was in the case between Foster and Mills plaintiff, Foster and and Spencer and Boord defendant, 28 Spencer's Eliz. rot. 820.

Marwood and Sanders. C.

case.

Now come we to the authorities, which have an appearance to be against us, which are not many, and they be easily answered, not by distinguishing subtilly, but by marking the books advisedly.

f. 44.

1. There be two books that seem to cross the authorities touching the inter- 7 H. 6.44 E. 3. est of the windfalls, 7 H. VI. and 44 E. III. f. 44, where, upon waste brought and assigned in the succision of trees, the justification is, that they were overthrown by wind, and so the lessee took them for fuel, and allowed for a good plea; but these books are reconciled two ways: first, look into both the justifications, and you shall find that the plea did not rely only in that they were windfalls,

but couples it with this, that they were first sear, and then overthrown by wind; and that makes an end of it, for sear trees belong to the lessee, standing or felled, and you have a special replication in the book of 44 E. III. that the wind did but rend them, and buckle them, and that they bore fruit two years after. And 2ndly, you have ill luck with your windfalls, for they be still apple-trees which are but wastes per accidens, as willows or thorns are in the sight of a house; but when they are once felled they are clearly matter of fuel.

Another kind of authorities, that make show against us, are those that say that the lessee shall punish the lessor in trespass for taking the trees,

5 H. 4. f. 29. 1 Ma. f. 90.

which are 5 H. IV. f. 29, and 1 Mar. Dier. f. 90, Mervin's case; and you might add if you will 9 E. IV. the case vouched before unto which the answer is, that trespass must be understood for the special property, and not for the body of the tree; for those two books speak not a word, what he shall recover, nor that it shall be to the value. And therefore 9 E. IV. is a good expositor, for that distinguisheth where the other two books speak indefinitely; yea, but 5 H. IV. goes farther, and saith, that the writ shall purport arbores suas, which is true in respect of the special property; neither are writs to be varied according to special cases, but are framed to the general case, as upon lands recovered in value in tail, the writ shall suppose donum, a gift.

13 H. 7. f. 9.

And the third kind of authority is some books, as 13 H. VII. f. 9, that say, that trespass lies not by the lessor against the lessee for cutting down trees, but only waste; but that it is to be understood of trespass ri et armis, and would have come fitly in question, if there had been no seisure in this case.

Upon all which I conclude, that the whole current of authorities proveth the properties of the trees upon severance to be in the lessor by the rules of the common law and that although the common law would not so far protect the folly of the lessor, as to give him remedy by action, where the state was created by his own act; yet the law never took from him his property; so that as to the property, before the statute and since, the law was ever one.

Now come I to the third assertion, that the statute of Gloucester hath not transferred the property of the lessee upon an intendment of recompence to the lessor; which needs no long speech: it is grounded upon a probable reason, and upon one special book.

The reason is, that damages are a recompence for property; and therefore that the statute of Gloucester giving damages should exclude property.

The authority seems to be 12 E. IV. f. 12 E. 4. f. 8. 8, where Catesbey affirming that the lessee at will shall have the great trees, as well as lessee for years or life; Fairfax and Jennings correct it with a difference, that the lessor may take them in the case of tenant at will, because he hath no remedy by the statute, but not in case of the termors.

This conceit may be reasonable thus far, that the lessee shall not both seise and bring waste; but if

66

he seise, he shall not have his action; if he recover by action, he shall not seise: for a man shall not have both the thing and recompence; it is a bar to the highest inheritance, the kingdom of heaven, receperunt mercedem suam." But at the first, it is at his election, whether remedy he will use, like as in the case of trespass; where if a man once recover in damages, it hath concluded and turned the property. Nay, I invert the argument upon the force of the statute of Gloucester thus: that if there had been no property at common law, yet the statute of Gloucester, by restraining the waste, and giving an action, doth imply a property: whereto a better case cannot be put than the case upon the statute "de donis conditionalibus," where there are no words to give any reversion or remainder; and yet the statute giving a ing an action A statute givformedon, where it lay not before, being implieth an inbut an action, implies an actual reversion and remainder.

terest.

Thus have I passed over the first main part, which I have insisted upon the longer, because I shall have use of it for the clearing of the second.

That appears by 5 Hen. V. where it is said, that if lessee for years without impeachment of waste accept a confirmation for life, the privilege is gone.

8.

And so are the books in 3 E. III. and 28 H. VIII. that if a lease be made 3 E. 3 28 H. without impeachment of waste pour autre vie, the remainder to the lessee for life, the privilege is gone, because he is in of another estate; so then plainly it amounts to no grant of property, neither can it any ways touch the property, nor enlarge the special property of the lessee: for will any man say, that if you put Marwood and Sanders's case of a lease without impeachment of waste, that he may grant the land with the exception of the trees any more than an ordinary lessee? Or shall the windfalls be more his in this case than in the other? for he was not impeachable of waste for windfalls no more than where he hath the clause. Or will any man say, that if a stranger commit waste, such a lessee may seise? These things, I suppose, no man will affirm. Again, why should not a liberty or privilege in law be as strong as a privilege in fact? as in the case of tenant after possibility: Or where there is a lessee for life the remainder for

life? for in these cases they are privileged from waste, and yet that trenches not the property.

Now therefore to take the second course, that it should be as a real power annexed to the state; neither can that be, for it is the law that moldeth estates, and not men's fancies. And therefore if men by clauses, like voluntaries in music, run not upon the grounds of law, and do restrain an estate more than the law restrains it, or enable an estate more than the law enables it, or guide an estate otherwise than the law guides it, they be mere repugnancies and vanities. And therefore if I make a feoffment in fee, provided the feoffee shall not fell timber, the clause of condition is void. And so on the other side, if I make a lease with a power that he shall fell timber it is void.

So if I make a lease with a power that he may make feoffment, or that he may make leases for forty years, or that if he make default I shall not be received, or that the lessee may do homage; these are plainly void, as against law, and repugnant to the state. No, this cannot be done by way of use, except the words be apt, as in Mildmay's case; neither is this clause, in the sense that they take it, any better.

Therefore laying aside these two constructions, whereof the one is not maintained to be, the other cannot be; let us come to the true sense of this clause, which is by way of discharge of the action, and no more: wherein I will speak first of the words, then of the reason, then of the authorities which prove our sense, then of the practice, which is pretended to prove theirs; and lastly, I will weigh the mischief how it stands for our construction or theirs.

It is an ignorant mistaking of any man to take impeachment for impedimentum, and not for impetitio; for it is true that impedimentum doth extend to all hinderances, or disturbances, or interruptions, as well in pais as judicial. But impetitio is merely a judicial claim or interruption by suit in law, and upon the matter all one with implacitatio. Wherein first we may take light of the derivation of impetitio, which is a compound of the preposition in, and the verb peto, whereof the verb peto itself doth signify a demand, but yet properly such a demand as is not extra judicial: for the words "petit judicium, petit auditum brevis," etc. are words of acts judicial; as for the demand in pais, it is rather requisitio than petitio, as "licet sæpius requisitus;" so much for the verb peto. But the preposition in enforceth it more, which signifies against; as "Cicero in Verrem, in Catilinam :" and so in composition, to inveigh, is to speak against; so it is such a demand only where there is a party raised to demand against, that is an adversary, which must be in a suit in law; and so it is used in records of law.

As Coke, lib. 1. f. 17, Porter's case, it was pleaded in bar, that "dicta domina regina nunc ipsos Johannem et Henricum Porter petere seu occasionare non debet," that is, implacitare.

So likewise Coke 1. 1, f. 27, case of Alton woods, "quod dicta domina regina nunc ipsum proinde aliqualiter impetere seu occasionare non debet."

So in the book of entries f. 1, lit. D. 15 H. VII. rot. 2, "inter placita regis, et super hoc venit W. B. commonachus abbatis W. loci illius ordinarii, gerensque vices ipsius abbatis, ad quoscunque clericos de quolibet crimine coram domino rege impetitos sive irritatos calumniand'." So much ex vi et usu termini.

For reason: first, it ought to be considered, that the punishment of waste is strict and severe, because the penalty is great, treble damages, and the place wasted: and again, because the lessee must undertake for the acts of strangers: whereupon I infer, that the reason which brought this clause in use, ab initio, was caution to save, and to free men from the extremity of the penalty, and not any intention to countermand the property.

:

Add to this that the law doth assign in most cases double remedy, by matter of suit, and matter in pais; for disseisins, actions and entries; for trespasses, action and seisure; for nuisances, action and abatement and, as Littleton doth instruct us, one of these remedies may be released without touching the other. If the disseissee release all actions, saith Littleton, yet my entry remains; but if I release all demands or remedies, or the like words of a general nature, it doth release the right itself. And therefore I may be of opinion, that if there be a clause of grant in my lease expressed, that if my lessee or his assigns cut down and take away any timber-trees, that I and my heirs will not charge them by action, claim, seisure, or other interruption, either this shall inure by way of covenant only, or if you take it to inure by way of absolute discharge, it amounts to a grant of property in the trees, like as the case of 31 Assis. I grant, that if I pay not you 101. per annum at such feasts, you shall distrain for it in my manor of Dale, though this sound executory in power, yet it amounts to a present grant of a rent. So as I conclude that the discharge of action the law knows, grant of the property the law knows, but this same mathematical power being a power amounting to a property, and yet no property, and knit to a state that cannot bear it, the law knoweth not, "tertium penitus ignoramus."

31 Assis. A clause that

sounds to a power

amounts to a property, if the state bear

it.

For the authorities, they are of three kinds, two by inference, and the third direct.

42 E. 3.

f. 23, 24.

The first I do collect upon the books of 42 Ed. III. f. 23, and 24, by the difference taken by Mowbray, and agreed by the court, that the law doth intend the clause of disimpeachment of waste to be a discharge special, and not general or absolute; for there the principal case was, that there was a clause in the lease, that the lessor should not demand any right, claim, or challenge in the lands during the life of the lessee. It is resolved by the book, that it is no bar in waste; but that if the clause had been, that the lessee should not have been impeached for waste, clearly a good bar; which demonstrates plainly, that general words, be they never so loud and strong, bear no more than the state will bear, and to any other purpose are idle. But special words that inure