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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 owner, but the property of it goeth 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 state 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 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, inhering 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 subterranea,—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 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 with 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 because it becometh moveable, for there be moveable inheritances, as villains in gross, 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.

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

[blocks in formation]

Nevil's case

proving there ances which

are inheritare not local.

7 Co. 121.

The consent with phila between pertransitory.

of the law

sophy in distinguishing

petual and

The consent of the law

with the civil law in the distinguish

ing between inheritance

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 interest the law allotteth to the owner of inheritance, and what to the particular tenant; for they be competitors in this case.

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 termor it assigneth such interests as are tender, and feeble against the force of time, but have an annual, or seasonable return or revenue. And herein it consents again with the wisdom of the and particular civil law; for our inheritance and particular estate is in effect hath relation their dominium and usus-fructus; for so it was conceived upon sion of domi- the ancient statute of depopulations, 4° Hen. VII. which was penned, that the owner of the land should re-edify the houses of Owner in the husbandry, that the word owner (which answereth to dominus) was, he that had the immediate inheritance, and so ran the later statutes.

estates, which

to their divi

nium and usus-fructus.

stat. 4 H. 7.

The writ of waste suppos

timber to be

1

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.

First, it appeareth by the register out of the words of the eth the felling 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.

ad exhareda

lionem.

Gloucester is,

ret rem talam, not

locum vasta

tum.

The statute of Again it appeareth out of the words of the statute of Glouquod recupe-cester well observed that the tree and the soil are one entire thing; for the words are quod recuperet rem vastatam, 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 wherewith the stem continues. And therefore it is notably 2 H. 6. f. 13. ruled in 22 H. VI. f. 13., that if the termor do first cut down "There" in the MS.

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.

lins.

And farther proof may be fitly alleged out of Mullin's case Soby v. Moin the Commentaries, where it is said that for timber trees tithes Plowd. 470. 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, 4. Co. 62. p. 4. f. 62. I mean the principal case; where it is resolved that if the trees being excepted out of a lease be granted to the lessee, or if the grantee of trees accept a lease of the land, the property of the trees drowns' not, as a term should drown in a freehold, but subsists 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 reannexed. 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 reaffixed, 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 termor'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 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 un

"Drown" in the MS.; and so "subsist " (for "subsists") below.

The deriva

tion and force

of the word

firmarius.

The evidences

certain, firm and certain; and accordingly feodi firma, — feé÷ 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.

First 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, propugnacu the fortress and defence of the land, belongeth not to the lessee, but to the owner of the inheritance.

lum hæreditatis.

Homage importeth conti

blood.

So the lessee's estate is not accounted of that dignity, that it nuance in the can do homage, because it is a badge of continuance in the blood of lord and tenant. Neither, for my own opinion, can a particular tenant of a manor have aid, pour file marier, ou pour faire fitz chevalier; because it is given by law upon an inducement of continuance of blood and privity between lord and

Particular tenants of seigniories shall not have aid.

The phrase that the

lessee hath a special property in the

tree, very improper; for he hath but

tenant.

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 his solid parts grow putrified, 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.

He

And therefore that interest of the lessee in the tree which the books call a special property is scarce worth that name. 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 profits of the rock. He shall have the pannage1; 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

the tree.

Swine-food, acorns, &c.

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