The works of Francis Bacon, lord chancellor of England.

CASE OF IMPEACHMENT OF WASTE. 269
Nevils case ed. And this is not because it be- ritance and particular estate is in effect their
proving there
are inheritances cometh movable, for there be mov- domlinium and qusus-fructus; for so it was conwhich are not
carel.no able 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.
And herein I do not a little admire ritance; and so ran the later statutes. Let us see
tlcslaw winth the wisdom of the laws of England, therefore what judgment the law maketh of a
distinguishiing and the consent which they have with timber tree; and whether the law doth not place
between perpetual and tan' the wisdom of philosophy and nature it within the lot of him that hath the inheritance
sitory. itself: for it is a maxim in philosophy as parcel thereof.
that in regione elementari 4nihil est rternum, nisi First, It appeareth by the register out The writ of
per propagationer speciei, aut per successionerm of the words of the writ of waste, that 1wastesupposeth
partium. the waste is laid to be ad exhwredation- be. tobea.
And it is most evident that the elements them- em, which presupposeth Ihreditatem:
selves, and their products, have a perpetuity not for there cannot be a disinherison by the cutting
in individuo, but by supply and succession of down of the tree, except there was an inheritance
parts. For example, the vestal fire that was in the tree, quiaprivatiopr supponit actum.
nourished by the virgins at Rome was not the Again it appeareth out of the words Thestatuteof
same fire still, but was in perpetual waste and of the statute of Gloucester, well ob- GloUdcretr,
in perpetual renovation. So it is of the sea and served, that the tree and the soil are l aot,....tn'..'
waters, it is not the same water individually, for one entire thing, for the words are, quod tatum.
that exhales by the sun, and is fed again by the recuperet remi vastatam; and yet the books speak,
showers. And so of the earth itself, and mines, and the very judgment in waste is quod recuperet
quarries, and whatsoever it containeth, they are locum vastatum, which shows, that res and locus
corruptible individually, and maintained only are in exposition of law taken indifferently; for
by succession of parts. and that lasteth no longer the lessor shall not recover only the stem of the
than they continue fixed to the main and mother tree, but he shall recover the very soil, whereunto
globe of the earth, and is destroyed by their the stem continues. And therefore it is notably
separation. ruled in 22 H. VI. f. 13, that if the ter- 22 H. 6..13.
According 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 damages for them severally. But, says the book,
mineral, no tree, no mould to be longer inherit- he must bring but one writ, for he can recover the
ance than they adhere to the mass, and so are place wasted but once.
capable of supply in their parts; for by their con- And farther proof may be fitly alleged out of
tinuance of body stands their continuance of time. Mullin's case in the commentaries, Mts's ease.
Neither is this matter of discourse, except the where it is said, that for timber trees
deep and profound reasons of law, which ought tithes shall not be paid. And the reason of the
chiefly to be searched, shall be accounted dis- book is well to be observed; for that tithes are
course, as the slighter sort of wits, Scioli, may to be paid for the revenue of the inheritance, and
esteem them. not for the inheritance itself."
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, co.p.4, f..
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
The consent of First, In general the law doth assign being excepted out of a lease granted to the lessee,
the ay I5hPn to the lessor those parts of the soil con- i or if the grantee of trees accept a lease of the land,
the distninguih. joined, which have obtained the repu- the property of the trees drown not, as a termn
ing between inaertiance and tation to be durable, and of continu- should drown in a freehold, but subsist as a chat,
particatar estatrels, n to ante, and such as being destroyed are tel divided; which shows plainly, though they
otf rdi iu'n not but by long time renewed; and to be made transitory, yet they still to some purpose
tntd usOvsefruci 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 I are reannexed. But, on the other side, if a man
with the wisdom of the civil law; for our inhe- I buy corn standing upon the ground, and take a
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