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. 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 rever sion, 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 tran sitory 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 ed. And this is not because it be- ritance and particular estate is in effect their 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, and dignities which are judged hereditaments; 4 Hen. VII. which was penned, "that the owner but because by their severance they lose their of the land should re-edify the houses of husnature of perpetuity, which is of the essence of bandry," that the word owner, which answereth an inheritance. 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 Berished 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 statute of quod recuperet Det um 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 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 contingance 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. 22 H. 6. f. 13. Co. p. 4, f. 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, 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 the terminors it assigneth such inte- savour of the inheritance: for if you go a little 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 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." The derivation word firmary. น. 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 and force of the 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, 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. 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. Homage im ance in the cular tenants of not have aid. So the lessee's estate is not accountporteth continued of that dignity, that it can do hoblood. Parti. mage, because it is a badge of continuseigniories shall ance 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 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, The the pr 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 for bet shall he have the shade of a rock; but de 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, ascribing to permanent states permanent interest, 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. And therefore the tree standing belongs clearly to the owner of the inheritance. 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. enden's case doth not stick to give it c 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 ance: 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. arm! power grat 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. And first for damages. Now, for the seisure, you may not look for plentiful authority in that: for the lessor, which For damages, look into the books of the law, had the more beneficial remedy by action for and you shall not find the lessee shall ever recover treble damages, had little reason to resort to the damages, not as they are a badge of property; for weaker remedy by seisure, and leases without the damages, which he recovereth, are of two impeachment were then rare, as I will tell you natures, either for the special property, as they anon. And, therefore, the question of the seisure call it, or as he is chargeable over. And for this, came chiefly in experience upon the case of the to avoid length, I will select three books, one, windfalls, which could not be punished by action 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. The first is the book of 44 E. III. 4 E&LET f. 27, where it is agreed, that if tenant for life be, and a disseisor commit waste, the lessee shall recover in trespass as he shall answer in waste; but that this is a kind of recovery of damages, though per accidens, may appear plainly. For if the lessor die, whereby his action is gone, then the disseisor is likewise discharged, otherwise than for the special property. The second book is 9 E. IV. f. 35, where it is admitted, that if the lessor himself cut down the tree, the lessee shall recover but for his special profit of shade, pannage, loppings, because he is not charged over. 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 appeareth notably by the book 38 Ass. f. 1. If 35 Am. 1 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. Nay, 5 E. IV. f. 100, goeth farther 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. t. 13, where it is said, that FIL 8, 13, if tenant for life, and he in the revermon join a lease for years, and lessee for years of waste. 40 E. 3, pl. 22. First, therefore, the case of 40 E. 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 manor. 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. 34 E. 3, 1.5. 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 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 trees 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 lard, but not for taking of the substances. And so of great trees: |