Patterson v. M'Causland

¶1This case standing *71ready for hearing, and the attorneys of the parties having been fully heard, the proceedings were read and considered.

¶2The evidence here relied on to contradict and discredit the testimony of the witnesses who have been produced tó prove the marking of this black oak as a boundary, is founded on a presumption, derived from what is alleged to be the regular course of nature in the growth of forest trees. 1 have met with no instance, in the books, in which proof of this kind had been received and respected in a court of justice.

¶3A presumption is an inference as to the existence of a fact, not actually known, arising from its usual or necessary connection with others which are known, (a) The whole force of the presumptive evidence, here offered, rests, therefore, upon the fact of the alleged regular and invariable course of nature in the formation and growth of trees, being well known; or at least, on its being susceptible of, or having been clearly established by proof. For, if the course of vegetation, in this particular, be irregular, unknown, or on any account incapable of proof, then no inference can be deduced from it worthy of any consideration whatever as evidence. The point then to be here determined is, whether, in the growth of trees, a concentric layer of wood under the bark is a regular and invariable annual formation or not ? This is a question involving an inquiry into the physiology of forest trees, which merits a most careful consideration.

¶4The law respects the regular course of nature in every way; and, consequently, in all eases, in so far as the course of nature is known, all such facts, as well in regard to the revolution of the seasons, as to animals and vegetables ; as the mating of birds, and their co-operation in rearing their young, the blooming time of roses, and the like, are received as being in themselves, entirely trustworthy; or as facts from which inferences as to the truth of other facts may be safely drawn. (b) In questions of bastardy, the time of access being proved, the known term of gestation, reckoning from the time of birth, is always received as a most satisfactory kind of presumptive evidence, (c) So too, in all the various questions in relation to the right of property, connected with a continuance of life, facts, so far as they are known, in regard to the *72probability, the expectation, and the average duration of human life, have always been, in like manner, admitted as evidence; or, as a ground from which presumptive evidence of the existence of other facts may be fairly deduced, (d)And there can be no doubt, that the regular and known course of nature in the formation of vegetables may be as safely relied on as direct, or as presumptive evidence, as in that of animals. The only point of difficulty, as to both, being the establishment of the truth of that which is alleged to be the uniform and regular course of nature.

¶5Little seems to be known as to the duration of the lives of trees of any kind; and yet, as a man may have an inheritance in fee simple, in lands as long as such tree shall grow; (e) it might become as important to ascertain the expectation of the life of such a tree, in order to set a present value upon such a base fee, as to ascertain the expectation of the life of a cestui que vie, for the purpose of putting a present value upon an estate for life. The olive tree, so highly valued for its fruit from the most remote ages to the present time, is said to be remarkable for its longevity. The ancients limited its existence to two hundred years, but modem authors assert, that, in climates suited to its constitution, it survives its fifth century, (f)But it is believed, that few of the common fruit trees of our country, apple, pear, or cherry, live to an hundred years of age.

¶6By the common law of England, where the owner of a forest, in which others had a right of common for their cattle, felled the timber trees, he was allowed to inclose it so as to exclude such commonable cattle for three years thereafter, to prevent them from browzing and eating down the young spring before it had grown up beyond their reach; which term of inclosure was, by a statute passed in the year 1482, extended to seven years, for the more effectual preservation of the young growth; (g) which new growth, it has been held in England, will attain a sufficient size to be cut as timber fit for many uses at twenty years of age. (h) But the plantations which have been made in modern times, in England, so *73far as they have gone, afford perhaps the only, or certainly the least questionable evidence as to the growth and age of forest trees. In such cases it has been observed, that oaks and beech are not fit for use, as limber, until they attain about fifty or sixty years of age; but that the Scotch fir, (pinus sylvestris,) larch, (larix,) ash, and cbesnut, become fit for use after a growth of twenty or thirty years. The larch, in particular, than which there is no tree in England of quicker growth, is said, on an average in favourable situations, to increase until fifty years of age, at the rale of half an inch in diameter and two feet and a half in height each year. Instances are mentioned where in Scotland, young oaks, valuable for their hark alone, are usually cut at from twelve to twenty-five years old. (i)

¶7I do not understand, however, that any of these historical accounts of the plantations of forest trees have, as yet, covered as much as the lapse of an hundred years. They make no mention of the expectation of life that may be attributed to any such trees ; nor do they speak of the average term of the existence of any of them. It has been said that in England the oak attains an age, in some instances, of more than a thousand years ; but that the beech, the ash, and the sycamore, (acer pseudo platanus,) most likely never live half so long. But all plants, as well as all animals, are alike subject to the inexorable law of mortality, as is sufficiently shewn by the bountiful provision made by nature for their reproduction. Hence, and from the well known fact, that all plants are subject to diseases, it necessarily follows, that all trees, like animals, have an average and ultimate term of existence beyond which their lives are rarely extended, or cannot be prolonged. (j)

¶8*74The existence of many forests over the same tracts of country, by which they are now occupied in Europe, have been known to stand as they now do for many centuries past; but whether their continuance has been kept up by the prolonged life of the greater proportion of the trees of which they are composed; or altogether, Jike nations of human creatures, by a succession of generations, leaving no individuals now alive of all those of which they were formerly composed, there seems to be no means of ascertaining. Most of the forests of our own country are, from all appearances, of as long standing as any others on the face of the globe; and there are doubtless many lofty trees now growing which had given umbrage to Powhatan, that distinguished chief of many tribes. But beyond the time of the first settlement of our own country by Europeans, all our knowledge in relation to it can only be derived from inference and conjecture.

¶9On considering the slow growth of most forest trees; and on observing in all ancient forests how few appearances there are of any changes or renewals, there is much reason to believe, that the most durable of forest trees have an almost indefinite length of life.(k) The white mulberry was introduced into Virginia about the year 1623, for the purpose of rearing silk worms; (l) and some of the same species of mulberry trees, which had been set out in Georgia, for a similar purpose, were, in 1802, alive at an hundred years of age. (m) The Norway spruce fir, (abies picea,) is allowed to be one of the tallest trees of the old continent. The finest stocks of it are straight bodied, from one hundred and twenty to one hundred and fifty feet in height; and from three to five feet in diameter; and are said to be a hundred years in acquiring that size. (n) The common elm, (ulmus compestris,) is reckoned one of the finest trees of the temperate zone of Europe. Several stocks of it, which had been planted in France about the year 1580, survived in 1819; that is, were about two hundred and forty years of age; and had then attained twenty-five or thirty feet of circumference, and eighty or ninety feet of height, (o) In France, at Sancerre, in the department of the Cher, one hundred and twenty miles from Paris, there was, in 1819, in existence a chesnut tree, (castanea vasca,) which, at six feet from the ground, was thirty feet in circumference. Six *75hundred years ago it was called the great chesnut; and though it is supposed to be more than a thousand years old, its trunk was still perfectly sound, and its brandies were annually laden with fruit, (p)

¶10All forest trees have a range of climate within which they flourish best, and far beyond which they will not grow, or cannot be propagated; and even within the range of their appropriate climate, they are all more or less affected by the soil and situation in which they happen to be rooted. As the great Parent, nature, rolls round the seasons of the changeful year, all of them assume different external appearances in succession. That they do not put forth their foliage or bloom in winter is obvious; but how they are, in other respects and internally, affected by the revolutions of the seasons, seems to be a mystery. Yet an opinion has become very prevalent, that the structure of their wood, visible on dissection, affords evidence of the periodical progress of nature in effecting their enlargement.

¶11‘Wood in vegetable anatomy, is that more or less hard and compact substance, rvhich makes up the bulk of the trunk and branches of a tree or shrub, and is concealed from view by the bark. When cut transversely, the wood is found to consist of numerous concentric layers, very distinct in the fir, and in trees of cold or temperate countries in general; less so in those appropriated to a tropical climate. The external part of each circular layer being much the most hard and compact, often with somewhat of a horny appearance, distinguishes the limits of each. Scarcely any two layers of the same tree are precisely alike, in the proportion which this compact part bears to the rest; nor does any one layer exhibit a precise uniformity of diameter in its whole circle.’ (q) And it is also said, that ‘the bark of trees annually changes into lifeless wood; whence the concentric rings, which are seen in the trunk of trees, when they are felled, are annually produced; and are said generally to he thicker on that side of the trunk, which grows towards the south, than on the northern side; and thicker in the summers most favourable to vegetation than the contrary. These rings, as they lose their vegetable life, and at the same time a part of their moisture by evaporation or absorption, gradually become harder and of a darker colour; insomuch, that by counting their number, it is said that not only the age of the tree, but that the mildness or moisture *76of each summer during the time of its growth, may be estimated by the respective thickness of the rings of timber.’ (r)

¶12The Linnaean hypothesis was, that the pith added a layer every year to the wood internally. But on its being observed, that many trees grew vigorously, the pith or a part of which had rotted so as to leave them almost entirely hollow, that hypothesis was abandoned as totally erroneous. And on its being discovered, that the food of a tree, after having been taken in by the root, and, some how, carried up and digested into sap by the leaves, was assimilated and added to the bulk of its trunk and limbs in layers immediately under its bark, the opposite hypothesis was adopted, that trees were increased in size by those external additions alone.

¶13Hence it was, perhaps, that upon a more careful examination of the organs of vegetables, they were classed, in reference to the visible arrangement of those organs, into two great groups, the first called exogenous, because of their having the vascular tissue arranged in concentric cylinders around a common axis, the pith; and the second, endogenous, having this tissue disposed in bundles, and not in cylinders. In the first class, the tubes and woody fibre are arranged in concentric bands, having the cellular tissue, in part, packed in between them; and in part forming lines, called the medullary rays, cutting them at right angles, and radiating from the axis of the stem. Such stems increase by the regular addition of new layers on the outside of the old wood; and are thence termed exogenous stems, or growers outwardly, as the name imports. This is the structure of almost all the forest trees of our Union. In the second class, the tubes and woody fibre are disposed in bundles throughout the stem; the interstices being filled up with cellular tissue. The stems having this structure do not increase in diameter, after they are once fairly formed, but only in solidity. This they do by the addition of new bundles of tubes and woody fibre internally. Hence, they have received the name of endogenous or growers inwardly, (s) Again it was observed, *77on the first appearance above ground of the nascent plant, that it in many cases exhibited a pair of thick fleshy lobes of the seed, hav*78ing some resemblance to leaves; these were called cotyledons. The common garden bean, the peach, the oak, and a great variety *79of other plants are alike in this respect; and have thence been denominated dicotyledonous plants. Another class, on their first appearance exhibit only one such leaf or cotyledon, such as Indian corn, the cabbage tree, (chamaerops pálmelo,) &c.; and hence they have been called monocotyledonous plants. Those of the first kind having been found to have stems of the exogenous structure, and those of the latter to be always of an endogenous formation, the two classes have been and may as well be designated by the one name as the other. (t)

¶14Then assuming that this was the only mode by which exogenous trees were enlarged, and because the sap flowed more freely and obviously in summer than in winter, it was affirmed, that the number of those concentric layers, counting from the surface to the centre, demonstrated the number of years the tree had been growing. But as has been seen, it is admitted, that in the wood of forest trees of the temperate zone, in which those concentric layers have been noticed, it has been observed, that each layer is composed of a great number of thinner and scarcely distinguishable ones, which in some cases assume a more or less conspicuous appearance than usual; in consequence of the fluctuations of the seasons, or accidental checks on the growth of the tree; as hard winters render the outside, or poms part of each circle, more decided ; while favourable summers make the circle itself altogether broader.

¶15Hence it is evident, from what is thus stated by the advocates of this notion, of each layer’s being an evidence of a year’s growth, that it is founded upon the apparent effects of the revolution of the seasons in the temperate zone. But the roots of carrots, beets, &c., which are the growth of a single season; and indeed the roots of all perennial trees, as well those of the endogenous as of the exogenous class, are also formed of concentrical layers; (u) and the wood of the trunks of most of the forest trees of the torrid zone are evidently formed in the same way; although some of them may exhibit slighter traces of such concentric rings than others. But the wood of none of the endogenous class of plants, among which is the cabbage tree, (chamaerops pálmelo,) of *80our country, exhibit any such indications of the. formation of successive concentrical layers, as are to be found in a stem of the oak, pine, &c. (w)

¶16The conspicuous formation of successive layers of wood is, however, not only confined to trees of a particular class, but even among them the formation of such layers differs materially, according to their respective species, ages, and situation, when growing in their several appropriate climates. And yet a tree of one species engrafted upon the stock of another of the same species, will grow vigorously, producing fruit of a different kind, and wood of a very dissimilar appearance from that on which it grows. It is remarkable, that the branches of the resinous trees consist almost wholly of wood, of which the organization is even more perfect than in the body of the tree; the reverse is observed in trees with deciduous leaves. (x)There are six times more concentrical circles in a given space of the yellow pine, (pinus mitis,) than there are in the pitch pine, (pinus regida,) or loblolly pine, (pinus tceda.) (y)The wood of the black oak, (quercus tinctorial) is coarse grained with empty pores; (z)that of the red oak, (quercus rubra,) is also coarse grained, with pores large enough for the passage of a hair, (a) The wood of the sweet gum, (liquidamber styraciftua,) when sawn into boards, is observed to be transversely marked at considerable distances, with blackish belts; (b) that of the black gum, (nyssa sylvatica,) and its genus, has its fibres interwoven and collected in bundles. It is difficult to split the wood, which in the arrangement of its tubes and woody fibres strikingly resembles that of a tree of the endogenous class, (c) The internal structure of the sugar maple, (acer saccharinum,) seems to undergo several changes in the course of its life. As the growing tree rises to maturity the grain of its wood becomes more undulated or curled; and, at an advanced age, by an inflexion of its fibres, from the circumference toward the centre, there are produced a kind of spots, which, when the wood is polished, resemble bird’s eyes, (d)So, too, as age advances, the wood of the oak likewise undergoes some sensible changes; for, it has been said by a person in Eng*81land, that of a multitude of oaks he had felled there, he counted the concentrical rings of one of about thirty-four inches in diameter, which was sound at the butt, as nearly as he could ascertain them, to the number of two hundred; but those of the last fifty years growth, next the bark, were so thin, he could not count them with certainty; though, as he thought, with sufficient accuracy to ground a calculation upon as to the proper age for felling timber; ranging as to oaks from one to two hundred years of age; and as to elms from fifty to a hundred years of age. (e)

¶17There is, according to the law of England, not only a custom as to what may properly be regarded as timber; (f) but also a custom as to what is called a husbandlike manner as well in regard to the best season as to the proper growth at which trees should be cut. And to prevent the violation of such customs an injunction, may be obtained, (g)Yet there does not appear to have been any clear well settled rules laid down as to what is to be deemed the proper age, size and season for cutting timber of any description. What, in some of the old books, is called Sylva Caedua, coppice, or under growth, was not considered as fitto be cut sooner than at twenty years growth. But latterly the common forest growth seems to have been regarded as timber, not according to its age, but by its size and utility. It would seem to have been held, in England, that the proper season for cutting timber was when the sap was down; that is, in the winter season after the trees had been divested of their foliage, (h)In this country, it is believed, there are no legal rules in relation to this matter. But it has been said, that after the forest trees have parted with their leaves in autumn, that their organs still continue their functions, though more slowly, during the whole winter; and in so doing accumulate a considerable quantity of matter in the vascular tissue of the stem; which matter, except the resin of the pine, being often of a nature rather to accelerate than prevent decay, is believed to be liquified and carried up in the spring, and then by the newly formed leaves digested, and sent down again for the nourishment and enlarge*82ment of the tree. Whence, and from actual observation, it has been confidently asserted, that the best season to cut timber, as well as to prune fruit trees, to prevent the dry rot in the timber, or in that part of the living tree from which the amputated limb has been taken, is during the summer when the trees are in full foliage, and their sap is in pure and active circulation. (i)

¶18But all trees, although standing within the general range of their appropriate climate, are very materially affected by the peculiar soil and situation in which they may happen to be rooted, (j)Even the great white pine, (pinus strobus,) the lofty chief of our forests, which in some instances elevates its top to the height of a hundred and eighty feet from the ground; (k) and the beautiful flowering poplar, (liriodendron tulipefera,) which may be ranked next to it in stature, and only after the oak in utility, exhibit, in the texture of their wood as well as in their size, the most unequivocal evidence of the generosity or unfriendliness of the soil in which they stand. (l) But such is the peculiar constitution of the white oak, (quercus alba,) which for general use is considered as the most valuable of all the timber trees of our Union, that it attains its largest size and greatest perfection in the cold and comparatively barren soil of those swampy plains, many of which extend in considerable tracts along the borders of the Chesapeake, and on the right and left shores of the lower Potomac; while on the otherwise fertile soils, west of the mountains, it is by no means so remarkable for its size. Whence it may be strongly inferred, that a tree, the texture and density of the wood of all the species being known to be alike, may in one situation attain a much larger size, and in a transverse section of its trunk exhibit a greater number of concentric circles than another of the same age the growth of a different situation.

¶19If it be true that trees are enlarged chiefly or only by the formation of successive concentrical layers, then it necessarily follows, that those layers, as the tree enlarges, must become wider as well as longer each year, so as to embrace the whole of its increased dimensions; and consequently the quantity of wood formed each year, supposing the several concentrical layers to be of the same *83thickness, must increase annually in a compound ratio. But although such a rate of increase may well be supposed to he carried on during the early years of its growth, there is every reason to believe, as was observed of the diminished thickness of the last fifty outside rings of the before mentioned English oak, in the two hundred of them which were counted from its centre to its surface, that the concentrical layers become thinner and less distinguishable as the tree grows older; and in proportion as its roots find it difficult to draw an increased supply from the soil in which it stands. These concentrical layers, as they are successively laid on, not only prevent the previous ones from thickening, or enlarging in any way, except by rising upward, which it is said they do not do; but as it is thought the continually increasing pressure, produced by the laying on of new layers, becomes so great as in many instances to occasion decay and a hollowness of the tree. (m)

¶20*84Supposing it to be true, that all 'our forest trees are sustained only by the circulation carried on immediately under their bark, *85as has been inferred from seeing many of them grow vigorously which were entirely hollow, then it would seem, that, on a total stop being put to that channel of circulation, death would ensue as certainly, and almost as suddenly as by cutting the arteries of an animal.

¶21Yet it has been observed, that early in the spring, before any thing like a leaf has been put forth, the vine particularly, and some forest trees, the sugar maple, &c. on a transverse incision being made into their wood pour forth a quantity of sap, which is always seen to proceed from the wood, and not from any layer near the bark; which shews that the vascular tissue of the stem, by some supposed to be mere dead wood, contributes largely, if not altogether, to supplying the plant with that portion of its nutriment which it certainly does, and must in a very great degree derive from the earth. And it is not uncommon to see forest trees, which in the winter or summer had been belted by a chop made all round into the wood of the trunk, near the ground, put out their usual amount of foliage in the following spring and sustain themselves during the year; which proves that there is a flow of sap through the wood of the trunk which contributes largely to the support of the vitality of the plant. In corroboration of this, it has been also observed, that besides the ordinary longitudinal vessels, there is what is called the silver grain, or medullary rays, consisting of numerous thin plates radiating from the, pith to the circumference, intersecting the concentrical layers, and visible in almost all kinds of wood; in the oak every tube is touched by them at short distances, and slightly diverted from its course. These plates, it is supposed, perform some important functions in the circulation of the sap. (n)

¶22*86It has been often said, not only that the age of a tree may be ascertained by the number of its concentrical layers; but that their closeness or distance from each other indicates the slowness, or the rapidity of their growth. The concentrical layers of the wood of the live oak, {quercus virens,) are very close, and it is very hard and heavy. The concentrical layers of the wood of the white cedar, (thuya occidentalism which grows near the falls of the Potomac, are also very close; as many as one hundred and seventeen have been found in a log of little more than thirteen inches in diameter; but the wood is very light, soft, and fine grained. Yet the closeness of the concentrical layers of the wood in these two species of trees, differing so widely in all other respects, is said to shew the extreme slowness of their growth, (o) The rapid growth of the catalpa, and the loblolly pine, is said to be proved by the great width of their concéntrica] layers, (p) But the wood of the locust, (robinia pseudo acacia,) is finer in its grain than any of the oaks, and much harder, when seasoned, than any of them, except the live oak. The locust converts its sap into perfect wood every third year; which is not done by oaks in less than every tenth or fifteenth year; and at twenty-five years of age it yields twice the mass of wood of any other tree. (q)

¶23The eminent botanist who has given us the most full, accurate, and instructive account of all our forest trees, appears to have frequently adverted to this general opinion, that the concentrical layers in the wood of such trees afforded evidence as well of their progress in vegetation as of their age. In speaking of the white cedar, (cupressus thyoides,) he says, thatc the concentrical circles are always perfectly distinct, even in stocks of considerable size; but their number and compactness prove that the tree arrives at its full growth only after a long lapse of years. I have counted two hundred and seventy-seven annual layers in a trunk twenty-one inches in diameter, and five feet from the ground; and forty-seven in a plant only eight inches thick at the surface, which proved it *87to be already fifty years old. I was told that the swamp in which it grew had been burnt at least half a century before, and had been re-pcopled from a few stocks that escaped the conflagration, or perhaps by the seeds of the preceding year.’ (r) From which it wmuld seem, that the number of the concentrical circles in the young cedar being found to correspond so nearly with the known lapse of time within which it must have grown, after all the old ones had been destroyed, might have induced this botanist to speak of this fact as a corroboration of the general opinion; yet he merely states the circumstance, and leaves the matter to the judgment of the reader. But in another place he has distinctly given us to understand, that however disposed to treat this opinion with respect, he himself had no great confidence in its correctness. In treating of the hemlock spruce, (abies canadensis,) he says, ‘The hemlock spruce is always larger and taller than the black spruce ; it attains the height of seventy or eighty feet, with a circumference from six to nine feet, and uniform for two-thirds of its length. But if the number and distance of the concentric circles afford any certain criterion of the longevity of trees, and the rapidity of their vegetation, it must be nearly two centuries in acquiring such dimensions. (s)

¶24The inferences deducible from the apparent number of concentrical layers found in the trunk of a tree, upon an inspection of a transverse section of it, is, however, a kind of evidence which can only be obtained by a posthumous examination. Such examination of the bodies of animals are common, and have often been found very instructive in relation to the purposes for which they have been made; but it is believed such an examination never was made with a view to ascertain the age of the animal, or when it would attain such a maturity as would give the greatest value and utility to its body, or that of similar animals. Post mortem examinations of the bodies of animals, are often made with a view to ascertain points of comparative anatomy; to observe the organization of the body, so as thereby the better to understand how living creatures of the same species should be treated in health, or in disease; or to ascertain what may have been the immediate *88cause of its death. So, too, the post mortem, examination of a tree can be of no value for any other purpose; except it be to find a rule for ascertaining its age, and thereby the ages of living trees of the same species ; or to find a rule for determining the rate per annum at which they may be expected to continue their enlargement until they reach the ultimate term of their lives.

¶25But assuming it to be true, that the number of the concentrical rings observed in the trunk of a tree, do always exactly correspond with the number of years of its age, then at least one important step would seem to have been made by such post mortem examinations towards ascertaining the ages of trees in general; as for example, if by the felling of an oak of thirty-four inches in diameter, it should be found to have two hundred concentric layers ; and, consequently, to be two hundred years old; and so to have increased in diameter at the rate of one-twelfth part of an inch annually; and then, assuming it to be true, that all the immediately adjacent and similarly situated oaks had increased in diameter at the same average annual rate; it follows, that the' age of every living oak in a similar soil and exposure, might from the measurement of its circumference, be exactly ascertained by a post mortem examination of any one, and so of every other species of trees. Let us follow out this hypothesis, and see to what it will lead.

¶26It has been found, that a larch tree, in England, will, under favourable circumstances, increase, until fifty years of age, at the rate of half an inch annually in diameter; and that some elms, planted in France in the year 1580, if what is said of their circumference be correct, had increased at the same rate in diameter until two hundred and forty years of age. (t) But it has been observed, that the latter concentrical layers of wood in an oak of no more than two hundred years of age, were so much thinner than those of its youth, as to be scarcely distinguishable; and that other kinds of trees, known to be of rapid growth in early life, have been found, by actual measurement, after they had attained a considerable age, to have remained nearly of the same circumference during the lapse of twenty years, (u)Therefore, after allowing *89for differences in soil and situation, let it be presumed, that in all trees, growing in their proper climates, of three hundred years of age and upwards, each one of their concentrical layers has, during their whole lives, on an average, annually added one-sixteenth part of an inch to their diameters. Then according to such a mode of calculation, the before mentioned great chesnut tree of France, of thirty feet in circumference, must have been nine hundred and sixty years old; and thus it would seem, that the tradition and conjectures, as to its age, were nearly correct. According to the same mode of calculation, the great sycamore, (platanus occidentalism) on the right bank of the Ohio, above Marietta, which was found, in the year 1802, to be at least fifteen feet in diameter, must have been then fourteen hundred and forty years of age. (w) But a much larger sycamore has been described by Pliny, as being then, in the first century of the Christian era, alive and standing in Syria, whose trunk, hollowed by time, afforded a retreat, for the night, to the Homan consul Lycinius Mutianus, with eighteen of his retinue. The interior of this grotto was seventy-five feet in circumference, and the summit of the tree resembled a small forest, (x) This great sycamore must have been then, according to this mode of calculation, more than two thousand years old. (y)

¶27*90On contemplating the traces of what appears to have been the long since abandoned fortifications, mounds, &c., found in the great valley of the Ohio, and in other parts of our country, there seems to be a disposition, in some, to consider them as the remains of a people partially or altogether civilized; and in order to shew that a sufficient 'time had elapsed for such a people, like some of the Greeks who have sunk into the barbarism of Albanians, to fall back into the condition of the savage tribes first found, by Europeans, to be inhabiting this country, the large forest trees, which had grown up out of those remains, have been felled, and the concentric rings of their trunks counted for the purpose of thus eviscerating from them evidence of the lapse of some hundreds of years since those supposed fortifications had been abandoned. But merely plausible deductions, or bold flights of fancy, however ingenious or striking, cannot be received as matters of history, much less as judicially established truths, (z)

¶28*91From what has been said, it appears, then, that some mere annual roots, and the roots of all trees, as well as the wood of most of our forest trees, exhibit the appearance, in a transverse section, of having been formed by a succession of concentrical layers; that the wood of a variety of trees which are only the growth of the torrid zone, are obviously formed in the same way: and therefore, that such concentrical layers cannot with certainty be pronounced to be the result of a succession of summer growths ; or any one of them to be the growth of only one year, or of any other given space of time. It also appears, that the wood of some trees, of the growth of the temperate as well as of the torrid zone, does not, in a transverse section of it, exhibit the least appearance whatever of any concentrical layers; and that in the wood of those trees, which is so constructed, the formation of such layers is said to be checked by accident, to be much affected by soil and situation, and even by the peculiarities of the successive seasons; and moreover, that they always become thinner and more indis*92tinct as the tree grows older; and that the fibres of the wood of some are very singularly disposed, appearing to have been collected into bundles; or to have undergone some peculiar inflexions as the tree advanced in age. We know that, here, roses do not bloom in January, that apples do not ripen so early as April, nor cherries so late as October; and we also know, that some forest trees bring their fruit to maturity annually, and others only biennially ; that some trees are of the monada class, having the male and female organs on the same tree, and that others are of different sexes, or of the diada class, having the males and females in distinct trees. These peculiarities, and the periodical fructification of trees being known, as in the case of the known terms of the incubation and gestation of animals, the law respects and confidently relies upon such a known regular course of nature. But no series of observations, by botanists or cultivators, have as yet demonstrated that any portion of the wood of a tree, as visible to the naked eye on dissection, was, like its fruit, the result of successive periodical formations, known to have been made within certain spaces of time; nor have philosophers, with the aid of chemistry or the microscope, been as yet able, in this and a multitude of other particulars, to detect the latent operations of the vital principle in vegetation; leaving all questions as to its gradual or periodical progress, still covered up in the most impenetrable obscurity. (a)

¶29*93In this case the block here produced, has been cut out so deep from the trunk of this black oak, as to include, -with the bark and all the newly formed layers of wood, eighteen others which had been formed when the chop mark was made. Judging from the appearance of the block, and the segment of the circle formed by its outside, I should suppose that the tree was about one foot in diameter, and was at present in a youthful and vigorous state of vegetation. The block distinctly exhibits the new wood as being in every way perfectly united over the whole of the chop mark. Immediately over the chop mark there is much horny -wood in which no concentrical layers are visible; but on one side of the chop mark, and where the concentrical layers appear to be a perfectly natural continuation of those into which the chop mark had been made, there can be counted no more than twelve additional concentrical layers. These new layers differ very much in thickness one from another, and altogether measure as much in diameter as the eighteen which had been previously formed. The whole or a part of the epidermis, or outside bark through which the chop mark was made, apparently still remains, with a perfectly formed new bark so closed over it as to leave nothing more than a scar or cicatrice where the chop mark had been made.

¶30The witnesses testify, that this chop mark was shewn as having been made in the year 1791, now thirty-nine years ago, in accordance with which, if the hypothesis that each concentrical layer denotes the lapse of a year, be correct, there should have been found that number of concentrical layers; but there are no more than twelve; and, consequently, the testimony of the witnesses, or the evidence derived from this hypothesis must be rejected. There is nothing whatever, in addition to this hypothesis, to impeach the credibility of the witnesses.

¶31*94I have nowhere met with the mention of any one single instance, in which the number of the concentrical layers, which could be distinctly counted, in the transverse section of the trunk of any forest tree, of a foot or more in diameter, had been found exactly to correspond with the years of its age, as otherwise well and positively known and ascertained. Fiet it is most manifest, that until the regular, uniform, and exact coincidence between the number of the concentric layers in the wood of trees and the years of their age, has been so demonstrated by observation and proof, as the term of gestation of animals has been, &c., there can be no clear and sure foundation for the hypothesis, that the number of such concentrical layers does denote the age of trees, or the progress of their growth. But even if this notion were shewn to be well founded, it would call for evidence destructive of that by which it was given. The production of the necessary evidence of the lapse of years, by cutting out, as in this instance, a block of sufficient dimensions to exhibit a distinct view of the number of the concentrical layers, formed since the time in question, might occasion the death of the very boundary tree intended to be shewn and re-established; so that the production of such evidence would, by destroying that of which it had been a component part, prevent a recurrence to the same kind of proof thereafter; or, in other words, to prove a living boundary by such means, it would be necessary to destroy it. This hypothesis, however, resting, as it yet does, altogether upon speculation and conjecture, cannot be judicially regarded as affording evidence worthy of any consideration whatever.

¶32Rejecting this hypothesis, the testimony of the witnesses stands in all respects unimpeached, and the line must be carried to the black oak, as called for and proved; and, consequently, no vacancy is left between Jolly’s First Attempt, and Long Fought and Dear Bought, over which a resurvey from Litten’s Fancy, can be so extended as to embrace any part of M’ Causland’s First Attempt.

¶33Whereupon it is Ordered, that the caveat of Robert M’Causland be sustained; that the caveat of Patterson &f Ellicott be overruled; and that Patterson &f Ellicott pay the costs of both caveats, to be taxed by the Register.