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THE ARGUMENTS IN LAW,

OF

SIR FRANCIS BACON, KNIGHT,

THE KING'S SOLICITOR-GENERAL,

IN CERTAIN GREAT AND DIFFICULT CASES.

TO MY LOVING FRIENDS AND FELLOWS,

THE

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 Eschines, 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 wallflowers, 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,

FRANCIS BACON.

THE

CASE OF IMPEACHMENT OF WASTE,

ARGUED BEFORE ALL THE JUDGES

IN THE EXCHEQUER CHAMBER.

THE case needs neither repeating nor opening. The point is in substance but one, familiar to be put, but difficult to be resolved; that is, Whether, upon a lease without impeachment of waste, the property of the timber-trees, after severance, be not in him that is owner of the inheritance ?

The case is of great weight, and the question of great difficulty: weighty it must needs be, for that it doth concern, or may concern, all the lands in England; and difficult it must be, because this question sails in confluentiis aquarum, in the meeting or strife of two great tides. For there is a strong current of practice and opinion on the one side, and there is a more strong current, as I conceive, of authorities, both ancient and late, on the other side. And therefore, according to the reverend custom of the realm, it is brought now to this assembly; and it is high time the question receive an end, the law a rule, and men's conveyances a direction.

This doubt ariseth and resteth upon two things to be considered; first, to consider of the interest and property of a timber-tree, to whom it belongeth: and secondly, to consider of the construction and operation of these words or clause, absque impetitione vasti: for within these two branches will aptly fall whatsoever can be pertinently spoken in this question, without obscuring the question by any other curious division.

For the first of these considerations, which is the interest or property of a timber-tree, I will maintain and prove to your lordships three things.

First, That a timber-tree, while it groweth, is merely parcel of the inheritance, as well as the soil itself.

And, secondly, I will prove, that when either nature, or accident, or the hand of man hath made it transitory, and cut it off from the earth, it cannot change the owner, but the property of it goes where the inheritance was before. And thus much by the rules of the common law.

And, thirdly, I will show that the statute of Gloucester doth rather corroborate and confirm the property in the lessor, than alter it, or transfer it to the lessee.

And for the second consideration, which is the force of that clause, absque impetitione vasti, I will also uphold and make good three other assertions.

First, That if that clause should be taken in the sense which the other side would force upon it, that it were a clause repugnant to the estate and void.

Secondly, That the sense which we conceive and give, is natural in respect of the words; and for the matter agreeable to reason and the rules of law.

And lastly, That if the interpretation seem ambiguous and doubtful, yet the very mischief itself, and consideration of the commonwealth, ought rather to incline your lordship's judgment to our construction.

My first assertion therefore is, that a timber-tree is a solid parcel of the inheritance; which may seem a point admitted, and not worth the labouring. But there is such a chain in this case, as that which seemeth most plain, if it is sharply looked into, doth invincibly draw on that which is most doubtful. For if the tree be parcel of the inheritance unsevered, inherent in the reversion, severance will not alien it, nor the clause will not divest it.

To open therefore the nature of an inheritance: sense teacheth there be, of the soil and earth, parts that are raised and eminent, as timber-trees, rocks, houses. There be parts that are sunk and depressed, as mines, which are called by some arbores subterraneæ, because that as trees have great branches and smaller boughs and twigs, so have they in their region greater and smaller veins: so if we had in England beds of porcelane, such as they have in which porcelane is a kind of a plaster buried in the earth, and by length of time congealed and glazed into that fine substance; this were as an artificial mine, and no doubt part of the inheritance. Then are there the ordinary parts, which make the mass of the earth, as stone, gravel, loam, clay, and the like.

Now as I make all these much in one degree, so there is none of them, not timber-trees, not quarries, not minerals or fossils, but hath a double nature; inheritable and real, while it is contained within the mass of the earth; and transitory and personal, when it is once severed. For even gold and precious stone, which is more durable out of earth than any tree is upon the earth; yet the law doth not hold of that dignity as to be matter of inheritance if it be once severed. And this is not Nevil's case because it becometh movable, for there proving there are inheritbe movable inheritances, as villains in ances which gross, and dignities which are judged are not local. hereditaments; but because by their severance they lose their nature of perpetuity, which is of the essence of an inheritance.

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philosophy in the consent which they have with the distinguishing between per- wisdom of philosophy and nature itself: petual and transitory. for it is a maxim in philosophy, that "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

division of dominium and

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 ancient statute of depopulations, 4 Hen. Owner in the VII. which was penned, "that the owner of the land should re-edify the houses of husbandry," that the word owner, which answereth to dominus, was he that had the immediate inheritance; and so ran the later statutes. Let us see therefore what judgment the law maketh of a timber-tree; and whether the law doth not place it within the lot of him that hath the inheritance as parcel thereof.

stat. 4 H. 7.

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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, 22 H. 6. 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.

Mullin's case.

And farther proof may be fitly 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.

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.

ought to yield up the inheritance in as good plight | ascribing to permanent states permanent interest, 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.

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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 lessee hath a special property in the tree, very impro

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 diamond growing upon the rock. He 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,

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 authorities 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.

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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.

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44 E. 3. f. 44.

The third is 44 E. III. f. 44, where 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, 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.

27 H. 8. f. 13.

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,

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