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 Aschines 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. 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.

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 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.

are inheritances cometh movable, for there be movable 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.

The consent of the law with philosophy in distinguishing between perpetual and transitory.

ed. And this is not because it be- ritance and particular estate is in effect their
dominium and usus-fructus; for so it was con-
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 hus-
bandry," 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.

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 in philosophy
that in regione elementari nihil est æternum, nisi First, It appeareth by the register out
per propagationem speciei, aut per successionem of the words of the writ of waste, that
partium.
the waste is laid to be ad exhæredation-
And it is most evident that the elements them-em, which presupposeth hæreditatem :
selves, 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 tim

ber to be ad ex

hæredationem.

The statute of quod recuperet

not locum vas

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. 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 tatum. 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, 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.

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

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.

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."

Co. p. 4, f. 62.

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, f. 62. I mean the principal 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 lessee, the civil law in to the lessor those parts of the soil conor 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 tation to be durable, and of continu- should drown in a freehold, but subsist as a chatance, 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 usus 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

heritance and particular es

tates, which

hath relation to

their division of dominium

tus. Owner in

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 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 ought to yield up the inheritance in as good plight as he received it; and therefore the word firmarius, which is the word

The derivation

word firmari

Us.

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 tribucre; 'the law guiding all things with line of measure and proportion.

The Phase that the lessee hath a special proper.

in the tree, the profits of the tree.

very improper; for he hath but

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.

terest; 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.

So as I conclude this part, that the reason and and force of the of the statute of Marlebridge, cometh, wisdom of law doth match things, as they conas I conceive, a firmando; because he sort, ascribing to permanent states permanent makes the profit of the inheritance, which other-interest, and to transitory states transitory inwise should be upon account, and uncertain, firm and certain; and, accordingly, feodi firma, feefarm, 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.

Homage im

ance in the

cular tenants of

Now come I to my second assertion, that by the severance the ownership or property cannot be altered; but that he that had the trees 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 Herlack- Herlackenden's enden's case doth not stick to give it case. somewhat plain terms; and to say that it were an absurd thing, that the lessee which hath a particular interest in the land, should have an absolute property in that which is part of the inherit

So the lessee's estate is not accountporteth continued of that dignity, that it can do hoblood. Parti- mage, because it because it is a badge of continuseigniories shall ance in the blood of lord and tenant. not have aid. Neither for my own opinion can a par-ance: you would have the shadow draw the body, ticular tenant of a manor have aid pour file marier, ou pour faire fitz chevalier; because it is given by law upon an intendment of continuance of blood and privity between lord and 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 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.

And therefore I will use a distribu- | fell timber trees, they shall join in an action of tion which rather presseth the proof. waste; but he in the reversion shall recover the The question is of property. There be whole damages: and great reason, for the special three arguments of property; damages, property was in the lessee for years, the general seisure, and grant: and according to these I will in him in the reversion, so the tenant for life examine the property of the trees by the authority meane had neither the one nor the other. of books.

So again in 2 H. VII. the words of The third is 44 E. III. f. 44, where | Brian are, that, for the timber trees, the 44 E. 3, f. 44. it is said, that if the lessee fell trees to lessor may take them; for they are his; and repair the barn, which is not ruinous in his own seemeth to take some difference between them default, and the lessor come and take them away, and the gravel. 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.

The like reason is of the timber of a house, as appears 34 E. III. f. 5, abridged by Brook, tit. Waste, pl. 34, when it is And that it is only for that intent appeareth | said, it was doubted who should have the timber notably by the book 38 Ass. f. 1. If of a house which fell by tempest; and, saith the

38 Ass. f. 1. 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.