The works of Francis Bacon, lord chancellor of England.

THE
CASE OF IMPEACHMENT OF WASTE.
ARGUED
BEFORE ALL THE JUDGES IN THE EXCHEIIQUER CHAMBER.
TiHE case needs neither repeating nor opening. First, That if that clause should be taken in
The point is, in substance,, but one, familiar to be the sense which the other side would force upon
put, but difficult to beresolved; that is, Whether, it, that it were a clause repugnant to the estate
upon a lease without impeachment of waste, the and void.
property of the timber trees, after severance, be Secondly, That the sense which we conceive
not in him that is owner of the inheritance. and give is natural in respect of the words; and
The case is of great weight, and the question for the matter agreeable to reason and the rules
of great difficulty: weighty it must needs be, for of law.
that it doth concern, or may concern all the lands And, lastly, That if the interpretation seem
in England; and difficult it must be, because this ambiguous and doubtful, yet the very mischief
question sails in confiuentiis aquarum, in the itself, and consideration of the commonwealth,
meeting or strife of two great tides. For there is ought rather to incline your lordships' judgment
a strong current of practice and opinion on the to our construction.
one side, and there is a more strong current, as I My first assertion therefore is, that a timber
conceive, of authorities, both ancient and late, on tree is a solid parcel of the inheritance; which
the other side. And, therefore, according to the may seem a point admitted, and not worth the
reverend custom of the realm, it is brought now labouring. But there is such a chain in this
to this assembly; and it is high time the question case, as that which seemeth most plain, if it is
receive an end, the law a rule, and men's con- sharply looked into, doth invincibly draw on that
veyances a direction. which is most doubtful. For if the tree be parcel
This doubt ariseth and resteth upon two things of the inheritance unsevered, inherit in the reverto be considered; first, to consider of the interest sion, severance will not alien it, nor the clause
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, abs- sense teacheth there be, of the soil and earth,
que imnpetitione vasti: for within these two parts that are raised and eminent, as timber trees,
branches will aptly fall whatsoever can be perti- rocks, houses. There be parts that are sunk and
nently spoken in this question, without obscuring depressed, as mines, which are called by some
the question by any other curious division. arbores subterranex, because that as trees have
For the first of these considerations, which is great branches and smaller boughs and twigs, so
the interest or property of a timber tree, I will have they in their region greater and smaller
maintain and prove to your lordships three things. veins; so if we had in England beds of porcelain,
First, That a timber tree, while it groweth, is such as they have in China, which porcelain is a
merely parcel of the inheritance, as well as the kind of a plaster buried in the earth, and by length
soil itself. 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 stone, gravel, loam, clay, and the like.
where the inheritance was before. And thus Now, as I make all these much in one degree.
much by the rules of the common law. so there is none of them, not timber trees, not
And, thirdly, I will show that the statute of quarries, not minerals nor fossils, but hath a
Gloucester doth rather corroborate and confirm double nature; inheritable and real while it is
the property in the lessor than alter it, or transfer contained within the mass of the earth, and tranit to the lessee. sitory and personal when it is once severed.
And for the second consideration, which is For even gold and precious stone, which is more
the force of that clause, absque impetitione vasti, I durable out of earth than any tree is upon the
will also uphold and make good three other earth, yet the law doth not hold of that dignity
assertions. as to be matter of inheritance if it be once sever268