THE

CASE OF IMPEACHMENT OF WASTE.

THE case needs neither repeating nor opening.1 The point in substance is 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 received an end, the law a rule, and men's conveyances a direction.

1 Bacon makes a note in the MS.: "The case to be had from Mr. Heath or Serj. Finch;" which gives a further indication of time, for Finch was not called to the coif till Easter, 1615. Dugdale, Origines Juridiciales. The case is obviously Lewis Bowles' case 11 Co. 79. S. C. 1 Roll. 177. It was decided in the K. B. against the plaintiff, who thereupon talked of bringing error: apparently he did so and had Bacon for his counsel. We may assume he was unsuccessful, as the law remained undisturbed.

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 belongs; 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 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 consid

eration 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 proving there there be moveable inheritances, as villains in

Nevil's case

are inheri

tances which

are not local. gross, and dignities which are judged heredit7 Co. 121. aments; but because by their severance they lose their nature of perpetuity, which is of the essence of an inheritance.

The consent of the law with philosophy in distinguishing

petual and transitory.

And herein I do not a little admire the wisdom of the laws of England, and the consent which they have with the wisdom. between per- 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 ad