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2 14< Case of Impeachment of Waste.

as mines, which are called by some arboressubterrane<e,
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
porcelane, such as they have in China, which porce-
lane 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 ; in-
heritable 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 dig-
nity as to be matter of inheritance if it be once se-
ase vered. And this is not because it becometh move-
in- able, for there be moveable inheritances, as villains in
S ross > anc * dignities which are judged hereditaments;

not local, but because by their severance they lose their nature
of perpetuity, which is of the essence of an inherit-
ance.
aw ^ nc * nerem I do not a Itok admire the wisdom of

with phiio- the laws of England, and the consent which they have
quish- W ^ *ke wl * s dom f philosophy and nature itself: for
between it is a maxim in philosophy, that in regione elementari
n ^ 1 ^ es * &ternum 9 msi per propagationem speciei, aut
per successionem parlium.

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



Case of Impeachment of Waste. 2 1 5

whatsoever it containeth, they are corruptible indivi-
dually, and maintained only by succession of parts,
and that iasteth no longer than they continue fixed to
the main and mother globe of the earth, and is de-
stroyed by their separation.

According to this I find the wisdom of the law, by
imitation of the course of nature, to judge of inherit-
ances 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.

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, Scioliy may esteem them.

And therefore now that we have opened the nature
of inheritable and transitory, let us see, upon a divi-
sion 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 com-
petitors in this case.

First, In general the law doth assign to the lessor The consent
those parts of the soil conjoined, which have obtained of the L law

i . i i i I i r i Wlt h ^e

the reputation to be durable, and or continuance, and civil lav, in



such as being destroyed, are not but by long time re thc .

, , J . . . J . . . guishmg be-

newed ; and to the termmors it assigneth such inte- tween inhe-



ress as are tender and feeble against the force of time,
but have an annual or seasonable return or revenue. estates,
And herein it consents again with the wisdom of the 7 c 1 ,'
civil law; for our inheritance and particular estate is their
in effect their dominium and usus-fructus ; for so
was conceived upon the ancient statute of
lations, 4 Hen. VII. which was penned, " that
" owner of the land should re-edify the houses of H - 7 -
" husbandry/' that the word ozvner, which answereth
to dominus, was he that had the immediate inherit-
ance ; and so ran the latter statutes. Let us see
therefore what judgment the law maketh of a timber-
tree j and whether the law doth not place it within



216 Case of Impeachment of Waste.

the lot of him that hath the inheritance as parcel
thereof.

The writ of First, It appeareth by the register out of the words
ge*h C the P fei- f * ne wri * of waste, that the waste is laid to be ad
ling timber exkteredatioiiem, which presupposeth htereditalem: for
jLr<fc//vT there cannot be a disinherison by the cutting down of
mm. the tree, except there was an inheritance in the tree,

quin privatio pncsupponit acf.inn.

The statute Again it appeareth out of the words of the statute

ter^tS^I f Gloucester, well observed, that the tree and the

cutset re* soil are one entire thing, for the words are quod

Bot'^MM* recuperet rent vastatam ; and yet the books speak,

vastaium. and the very judgment in waste is, quod recupertt

locum vastatum, which shews, 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 con-

22H.6.f.i3. tinues. And therefore it is notably ruled in 22 H. VI.

f. 13. that if the terminor do first cut down 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.

Muiiiu's And farther proof may be fitly alledged out of Mul-

lin'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 ; c< 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 re-
putation the law gives to the trees, even after they are
severed by grant, as may be plainly inferred out of
Co. p. 4. Herlackenden's case, L, Coke, p. 4. f. 62. I mean the
principal case ; where it is resolved, that if the trees
being excepted out of a lease granted to the lessee, or
if the grantee of trees accept a lease of the land, the
property of the trees drown not, as a term should
drown in a freehold, but subsist as a chattel divided ;
which shews 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



Case of Impeachment of Waste.

they are re-annexed. 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 re-affixed, for par la copulantur cum pa-
ribus.

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 pu-
nished " for the inheritance sake which was once in
him."

But this will receive a great denl 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 t firmarius,
which is the word of the statute of Marlebridge,
cometh, as I conceive, a Armando ; because he makes word /
the profit of the inheritance, which otherwise should rn
be upon account, and uncertain, firm and certain; and
accord in v\yfeodi t firma, fee-farm, is a perpetuity cer-
tain. 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 superjicie, not in pro-

fundo, he hath but tunicam feme, little more than the

vesture.

If we had fir- timber here, as they have in Mus-
covy, 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 propugnaciilnmTte e
luereditatis, the fortress and defence of the land, be-^ 1 ;^
longeth not to the lessee, but to the owner of the ii> W^
heritance.



218 Case of Impeachment of Waste.



^ essec ' s es tete is not accounted of that dig-
that it can do homage, because it is a badge of
in the binod, continuance in the blood of lord and tenant. Neither

Particular r> . . . r

tenants of tor my own opinion can a particular tenant or a manor

Sfnot* ^ ave a ^ P our .file marier, ou pour faire \fitz chevalier;

have aid. because it is given by law upon an intendment of con-

tinuance of blood and privity between lord and te-

nant.

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 ten-
der, germen terra y 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 its solid parts grow putrified,
and as the poet saith, non jam mater alit tdlus viresque
minis fraty then the law returns it back to the lessee.
This is true justice, this is smim caique trlbuere j the
law guiding all things with line of measure and pro-
portion.

The pinase, And therefore that interest of the lessee in the tree,
M harii'a*" wnicn * ne books call a special property, is scarce worth
special pro- that name. He shall have the shade, so shall he have
uee^ei Ac tne sna ^e of a rock ; but he shall not have a crystal or
improper; Bristol diamond growing upon the rock. He shall
have the pannage j why? that is the fruit of the in-
ike heritance 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 pro-
perty in the tree. But about words we will not differ.
So as I conclude this part, that the reason and wis-
dom of law doth match things, as they consort, as-
cribing to permanent states permanent interest, and to
transitory states transitory interest ; and you cannot
alter this order of law by fancies of clauses and liber-
ties, as I will tell you in the proper place. And
therefore the tree standing belongs clearly to the owner
of the inheritance.






Case of Impeachment of Waste. 219

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 inherit-
ance 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, it a 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 intire, owneth the
parts when it is broken ; breaking cannot alter pro-
perty.

And therefore the book in Herlackenden's case doth Heriacken-
not stick to give it somewhat plain terms ; and to say dc
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 en-
forcing the reasons.

And although the division be good, that was made
by Mr. Heath, that there be four manners of seve-
rances, 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 tend-
eth 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 distribution which rather Three argu-
presseth the proof. The question is or property. JUjJJJt^
There be three arguments of propertv damages, sei- damages,

,. r r , ' T .,, . seisure, and

sure, and grant : and according to these I will examine p>wer to
the property of the trees by the authority of books. & rant -

And first for damages.

For damages, look into the books of the law, and
you shall not find the lessee shall ever recover da-
mages, not as they are a badge of property ; for the
damages, which he recovereth, are of two natures,
either for the special property, as they call it, or as he



220 Case of Impeachment of Waste.

is chargeable over. And for this, to avoid length,
I will select three books, one 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 spe-
cial case, and standeth merely upon a special reason.

44E.f.27. The first is the book of 44 E. III. 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 accident, 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.

9E.4.f.35. The sesond book is 9 E. IV. f. 35. where it is ad-
mitted, 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.

44E.3.f. 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.

38 ASS. f. i. And that it is only for that intent appeareth notably
by the book 38 Ass. f. 1. If 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
sheweth plainly the property is respective to the em-
ployment.

5E. 4.f. Nay, 5 E. IV. f. 100. goeth farther and sheweth,

i0a that the special property which the lessee had was of
the living tree, and determines, as Herlackenden's
case saith, by severance ; for then mtigis dignum trahit
ad se minus dignum : for it saith, that the lessee cannot
pay the workmens wages with those parts of the tree
which are not timber. And so I leave the first de-
monstration of property, which is by damages ; ex-

27 H. sf. cent you will add the case of 27 H. VIII. f. 13. where
it is said, that if. tenant for life and he in the reversion



Case of Impeachment of Waste. 221

join in a lease for years, and lessee for years fell timber-
trees, they shall join in action of waste; but he in
the reversion shall recover the whole damages : and
great reason, for the special property was in the lessee
for years, the general in him in the reversion, so the
tenant for life meane had neither the one nor the other.

Now for the seisure, you may not look for plentiful
authority in that : for the lessor, which had the more
beneficial remedy by action for treble damages, had
little reason to resort to the weaker remedy by seisure,
and leases without impeachment were then rare, as I
will tell you anon. And therefore the question of the
seisure came chiefly in experience upon the case-of the
windfalls, which could not be punished by action of
waste.

First, therefore, the case of 40 E. III. pi. 22. is ex-40E.Spi.
press, where at the King's suit, in the behalf of the 22>
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.

So again in 2 H. VII. the words of Brian are, that an.T.f. 14.
for the timber- trees the lessor may take them ; for they
are his ; and seemeth to take some differeace between
them and the gravel.

The like reason is of the timber of an house, as ap- 34 E s.f.5.
pears 34 E. III. f. 5. abridged by Brook, tit. waste*
pi. 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



222 Case of Impeachment of Waste.

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.

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

9E.4f.55. 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 land, but not for taking of the
substances. And so of great trees : but Danby goes
farther, and saith, the law that gives him the thing,
doth likewise give him means to come by it; but they
both agree that the interest is in the lessor. And thus
much for the seisure.

For the grant ; it is not so certain a badge of pro-
perty as the other two ; for a man may have a property,
and yet not grantable, because it is turned into a right,
or otherwise suspended. And therefore it is true, that
by the book in 21 H. VI. that if the lessor grant the
trees, the grantee shall not take them, no not after the
lease expired; because this property is but de futuro,
expectant; but 'tis as plain on the other side that the
lessee cannot grant them, as was resolved in two nota-

Marwood ble cases, namely, the case of Marwood and Sanders,

andsanders. 4 j | j n commun i banco ; where it was ruled, that the
tenant of the inheritance may make a feoffment with
exception of timber-trees ; but that if lessee for life or
years set over his estate with an exception of the trees,
the exception is utterly void ; and the like resolution

Foster and was in the Sase between Foster and Mills plaintiff, and

Spencer's Spencer and Boord defendant, 28 Eliz. rot. 820.

Now come we to the authorities which have an ap-
pearance to be against us, which are not many, and
they be easily answered, not by distinguishing subtilly,
but by marking the books advisedly.

1. There be two books that seem to cross the au-

17 H 6 - thorities touching the interest of the windfalls, 7 H. VI.

H E ' 3f ' and 44 E. 3. f. 44. where, upon waste brought and



Case of Impeachment of Waste. 223

assigned in the succision of trees, the justification is,
that they were overthrown by wind, and so the lessee
took them for fuel, and allowed for a good plea ; but -
these books are reconciled two ways : first, look into
both the justifications, and you shall find that the plea
did not rely only in that they were windfalls, but
couples it with this that they were first sear, and then
overthrown by wind ; and that makes an end of it, for
sear trees belong to the lessee, standing or felled, and
you have a special replication in the book of 44 E. III.
that the wind did but rend them, and buckle them,
and that they bore fruit two years after. And 2dly,
you have ill luck with your windfalls, for they be still
apple-trees which are but wastes per accidens, as wil-
lows or thorns are in the sight of a house ; but when
they are once felled they are clearly matter of fuel.

Another kind of authorities, that make shew against
us, are those that say that the lessee shall punish the
lessor in trespass for taking the trees, which are 5 H. IV. 5 H 4 f. w.
f. 29. and 1 Mar. Dier. f. 90. Mervin's case ; and you l Ma - f - 90 -
might add if you will 9 E. IV. the case vouched before :
unto which the answer is, that trespass must be under-
stood for. the special property, and not for the body of
the tree ; for those two books speak not a word, what
he shall recover, nor that it shall be to the value.
And therefore 9 E. IV. is a good expositor, for that
distinguished where the other two books speak inde-
finitely ; yea, but 5 H. IV. goes farther, and saith, that
the writ shall purport arbores suas, which is true in
respect of the special property ; neither are writs to be
varied according to special cases, but are framed to
the general case, as upon lands recovered in value in
tail, the writ shall suppose domim, a gift.

And the third kind of authority is some books, asisn.Tf.A
13 H. VII. f. 9. that say, that trespass lies not by the
lessor against the lessee for cutting down trees, but
only waste ; but that it is to be understood of trespass
vi ct arniis, and would have come fitly in question, if
there had been no seisure in this case.

Upon all which I conclude, that the whole current
of authorities proveth the properties of the trees upon



224 Case of Impeachment of Waste.

severance to be in the lessor by the rules of the com-
mon law ; and that although the common law would
not so far protect the folly of the lessor, as to give him
remedy by action, where the state was created by his
own act : yet the law never took from him his property ;
so that as to the property, before the statute and since,
the law w r as ever one.

Now come I to the third assertion, that the statute
of Gloucester hath not transferred the property of the
lessee upon an intend ment of recompense to the lessor j
which needs no long speech : it is grounded upon a
probable reason, and upon one special book.

The reason is, that damages are a recompense for
property ; and therefore that the statute of Gloucester
giving damages should exclude property. The au-
12E.4 f. 8. thority seems to be 12 E. 4. f. 8. where Catesbey
affirming that the lessee at will shall have the great
trees, as well as lessee for years or life ; Fairfax and Jen-
nings correct it with a difference, that the lessor may
take them in the case of tenant at will, because he
hath no remedy by the statute, but not in case of the
termors.

This conceit may be reasonable thus far, that the
lessee shall not both seise and bring waste; but if he
seise, he shall not have his action; if he recover by
action, he shall not seise : for a man shall not have
both the thing and recompense ; it is a bar to the
highest inheritance, the kingdom of heaven, receperunt
mercedem sitam. But at the first, it is at his election,
whether remedy he will use, like as in the case of
trespass: where if a man once recover in damages, it
hath concluded and turned the property. Nay, I
invert the argument upon the force of the statute of
Gloucester thus : that if there had been no property at
common law ; yet the statute of Gloucester, by re-
straining the wastey and giving an action, doth imply
a property : whereto n better case cannot be put than
.the case upon the statute de donis condilionatibus,
where there are no words to give any reversion or
remainder; and yet the statute giving a formedon,
where it lay not before, being but an action, implies an



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 19 of 46)