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MY LOVING FRIENDS AND FELLOWS,
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 weighty and famous, have been set down by those that made them, and published, so that not only a Cicero, or a Demosthenes, or an Æschines hath set forth his orations, as well in the kind judicial as deliberative, but a Marrian' 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 mcanest. 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 there withal, in regard of the commixture that 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 roots. Besides, in all public service 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.
I No doubt the Plaidoyers de Mirion are meant, though the earliest edition mentioned in the Bibliothèque de Droit, by Camus and Dupin, is of 1625. I have not found the name of Pavier.
2 In the first draft, “ Common Pleas": and then follows" as it is far best for the science of Law itself, so nevertheless it doth not,” &c.
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 proceeding so far as, by his Majesty's rare if not singular grace, to be of both his counsels, 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,
I. THE ARGUMENT BEFORE THE JUDGES IN THE EXCHEQUER
CHAMBER, TOUCHING THE CLAUSE OF IMPEACHMENT OF
II. THE ARGUMENT IN Lowe's CASE, TOUCHING TENURES, IN THE
III. THE ARGUMENT OF TIIE LADY Stanhope's CASE, TOUCHING
THE CLAUSE OF REVOCATION OF USES, IN THE King's
IV. THE SEVERAL ARGUMENTS PROVING THE JURISDICTION OF THE
COUNCIL OF THE MARCHES OVER THE FOUR ENGLISH
CASE OF IMPEACHMENT OF WASTE.
The case needs neither repeating nor opening.' The point in substance is 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 received an end, the law a rule, and men’s conveyances a direction.
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 belongs; and secondly, to consider of the construction 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
1 Bacon makes a note in the MS. : “ The case to be had from Mr. Heath or Serj. Finch ”; which gives a further indication of time, for Finch was not called to the coif till Easter, 1615. Dugdale, Origines Juridiciales. The case is obviously Lewis Boules' ca e 11 Co. 79. S. C. 1 Roll. 177. It was decided in the K. B, against the plaintiff, who thereupon talked of bringing error: apparently he did so and had Bacon for his counsel. We may assume he was unsuccessful, as the law remained undis. turbed.