cutor, the se

cond executor shall be execu

tor to the first testator.

But otherwise,

if the adminis trator die

cutor, or if adcommitted of

administrators

may retain; be. cause the exe cutors are

charged to pay fore legacies.

some debts be

Property by legacy is where a man Executors or maketh a will and executors, and giveth legacies, he or they to whom the legacies are given must have the assent of the executors, or one of them, to have his legacy, and the property of that lease, or other goods bequeathed unto him, is said to be in him; but he may not enter nor take his legacy without the assent of the executors, or one of them, because the executors are charged to pay debts before legacies. And if one of them assent to pay legacies, he shall pay the value thereof of his own purse if there be not otherwise sufficient to pay debts.

But this is to be understood by debts of record to the king, or by bill and bond sealed, or arrearages of rent, servants' or workmen's wages; and not debts of shop-books, or bills unsealed, or contract by word; for before them legacies are to be paid.

And if the executors doubt that they Executor may

pay which le

executors do want they may

But if an administrator die intestate, then his administrator shall not be exe-shall not have enough to pay every pay he will cutor or administrator to the first. But legacy, they may pay which they list first the making his exe in that case the bishop, whom we call first; but they may not sell any special y legacy ministration be the ordinary, is to commit the adminis- legacy which they will to pay debts, to pay debis. his goods. tration of the first testator's goods to or a lease of goods to pay a money-legacy. But his wife, or next of kin, as if he had died intes- they may sell any legacy which they will to pay tate. Always provided, that that which the exe- debts, if they have not enough besides. cutor did in his lifetime is to be allowed for good. If a man make a will, and make no And so if an administrator die, and executors, or if the executors refuse, make his executor, the executor of the the ordinary is to commit administraadministration administrator shall not be executor to tion cum testamento annexo, and take the first intestate; but the ordinary must bonds of the administrators to perform to annexo. new commit the administration of the the will, and he is to do it in such sort as the goods of the first intestate again. executor should have done, if he had been named.

In both cases the ordinary shall comunit

of the goods of the first intestate.

executor

When a will is made, and no named, admibe committed

nistration is to

cum testamen

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 Cicero, a Demosthenes, or an Æschines hath set forth his orations, as well in the judicial as deliberative, but a Marion 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,

FRANCIS BACON. 267

THE

CASE OF IMPEACHMENT OF WASTE.

ARGUED

BEFORE ALL THE JUDGES in the EXCHEQUER CHAMBER.

THE case needs neither repeating nor opening. First, That if that clause should be taken in The point is, in substance, but one, familiar to be the sense which the other side would force upon put, but difficult to be resolved; that is, Whether, it, that it were a clause repugnant to the estate upon a lease without impeachment of waste, the and void. 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.

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 lordships' 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, inherit in the reversion, severance will not alien it, nor the clause

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 belong-will not divest it. eth and, secondly, to consider of the construc- To open, therefore, the nature of an inheritance; tion 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.

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 porcelain, such as they have in China, which porcelain is a kind of a plaster buried in the earth, and by length of time congealed and glazed into that fine subAnd, secondly, I will prove, that when either stance, this were as an artificial mine, and no nature or accident, or the hand of man hath made doubt part of the inheritance. Then are the ordiit transitory, and cut it off from the earth, it can-nary parts, which make the mass of the earth, as not 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.

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 nor 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 sever

Nevil's case proving there which are not local.

and dignities which are judged hereditaments; but because by their severance they lose their nature of perpetuity, which is of the essence of an inheritance.

ed. And this is not because it be- ritance and particular estate is in effect their are inheritances cometh movable, for there be mov-dominium and usus-fructus; for so it was conable inheritances, as villains in gross, ceived upon the ancient statute of depopulations, 4 Hen. 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 inhe ritance; 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.

The consent of the law with philosophy in

between perpetual and tran sitory.

And herein I do not a little admire the wisdom of the laws of England, distinguishing and the consent which they have with the wisdom of philosophy and nature itself: 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 the 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.

The writ of

waste supposeth the felling ber to be ad ex

hæredationem.

First, It appeareth by the register out of the words of the writ of waste, that the waste is laid to be ad exhæredationem, which presupposeth hæreditatem : 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.

The statute of

quod recuperet

not locum vas.

Again it appeareth out of the words of the statute of Gloucester, well ob- Gloucester, served, that the tree and the soil are rem vastatam, one entire thing, for the words are, quod latum. recuperet rem vastutam; and yet the books speak, and the very judgment in waste is quod recuperet locum vastatum, 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 terAccording to this I find the wisdom of the law, minor do first cut down the tree, and by imitation of the course of nature, to judge of then destroy the stem, the lessor shall declare inheritances and things transitory; for it allow-upon two several wastes, and recover treble

eth 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.

The consent of the law with the civil law in

22 H. 6. f. 13.

damages for them severally. But, says the book, he must bring but one writ, for he can recover the place wasted but once.

And farther proof may be fitly alleged out of Mullin's case in the commentaries, Mullin's case. 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."

Co. p. 4, L. 62.

And, therefore, now that we have opened the Nay, my lords, it is notable to consider what a nature of inheritable and transitory, let us see, reputation the law gives to the trees, even after upon a division of estates, and before severance, they are severed by grant, as may be plainly what kind of interests the law allotteth to the inferred out of Herlackenden's case, owner of inheritance, and what to the particular | L. Coke, p. 4, f. 62. I mean the printenant, for they be competitors in this case. cipal case; where it is resolved, that if the trees First, In general the law doth assign being excepted out of a lease granted to the lessec, to the lessor those parts of the soil con- or if the grantee of trees accept a lease of the land, the distinguish joined, which have obtained the repu- the property of the trees drown not, as a term heritance and tation to be durable, and of continu- should drown in a freehold, but subsist as a chat. bath relation to ance, and such as being destroyed are tel divided; which shows plainly, though they not but by long time renewed; and to be made transitory, yet they still to some purpose and out frue the terminors it assigneth such inte- savour of the inheritance: for if you go a little the stat. 4 H. 7. rests as are tender and feeble against the farther, and put the case of a state tail, which is force of time, but have an annual or seasonable a state of inheritance, then I think clearly they return or revenue. And herein it consents again are reannexed. But, on the other side, if a man with the wisdom of the civil law; for our inhe-buy corn standing upon the ground, and take a

ing between in

particular estates, which

their division of dominium

Owner in