MY most worthy Fellows and Companions of this noble and renowned Society, the Hour­glass of my puisne time is run, and I am now come to take possession of your Readers place; wherein I must hazard to your cen­sures the fortunes of my inability: These Twenty and six years compleat I have had continuance here, and in that time I have only taken the measure and length of your Hall: And herein I acknowledge Grayes-Inn to be the Patron of my best fortunes, and your selves the best Companions of my forepast and present life. I made a question, when it came to my turn to reade, Whether I should turn therefrom or not, being then troubled about Two things, Charge and Care, both which I put into a pair of Scales, wherein I thought Charge weighed heavy and solid (for ibi ponebantur solidi) Care notwithstanding had his equal weight with the other, and poised the Scales even: Yet I considered the small Substance I had got came by my Profession, I therefore took my self both in Credit and Conscience bound to undertake this burthensome place, for the maintenance and preservation of the honor of this house; and with that I put Charge and Care in one Scale, and Resolution in the other, which scaled them both up. Twenty years likewise of my last past time, I have in the practise of my Profession spent, but, I hope, little consumed thereof; In which time I lanched forth my Ship (In pro­fundum maris) for a Voyage to the Sea, and now she is re­turned to your Shores, furnish'd and ballist with Merchan­dize [Page 2] of several estimates: By my Ship I mean my Statute which I read on, which be the Laws of Sewers; the Mer­chandize be the weighty matters therein contained: By the Governors and Rulers of this Ship, I mean the grave and prudent Commissioners who are put in charge and trust with the execution of these Laws: By the Mariners, I in­tend the Officers of this Law; the Merchants place I re­serve unto my self: The Wares brought home be of divers sorts, some only fit for the Imperial Majesty of a King, and these be Royal Prerogatives, shewing forth their splen­dor like the Flower de Lice in the Crown; others belong to high Nobility, and some be useful for the homely Com­monalty; the rest which shall remain, I have cast under Hatches for my last days Mart, when I mean to make chaf­fer on them all. But though I seem to make these Markets of my Legal Merchandize, yet I do not mean to set such Rates upon them as Merchants use to do, which be all for (utile dulce) for I only set one price upon all, which is your kinde acceptance. Marvel not, I pray you, at these my Sea-like salutations, for this day I am become god Neptunes Orator, and I mean to display the power of his Empire; for my Statute, my Cases, and my Argument, will all depend upon the Element of Water, over which, as Poets feign, Neptune hath chief predominance. Well, now my Ship is at shore, and I have cast Anchor there, and to my great comfort I see many Chapmen attending the Mar­ket, and therefore now presently I will unlock, and set open the closet of my Store, which be contained in the fair Vo­lumns of the Law, and especially in that Law made and Enacted in the Parliament held in the 23. year of Hen. the 8. Chapt. 5. which is A general Act concerning the Com­missioners of Sewers for all the Realm of England.

The causes wherefore I made choice to read upon this Law, be five in number; Viz.

1 First, For the Antiquity of these Laws of Sewers, though this Statute bear date but 23. Henry 8.

2 Secondly, For the Largity and extent thereof, which [Page 3] appears in the stile of this Statute, and there termed, A ge­neral Act for all the Realm of England.

3 Thirdly, For the necessary use thereof, which continu­al practise and daily experience teacheth us.

4 Fourthly, I have had a more desire to read upon these Laws, because never any Reader did heretofore under­take the same; and upon perusal of this Statute, and upon due consideration taken of others, I thought I could not make my choice of a more fitting, and more necessary Law, nor more profitable for my Native Countrey of Lincoln­shire, and other Maritine places of this Kingdom, then this is.

5 And Fifthly, His Majesties general care, which these Laws require at His hands, and his special care, by the which His Highness of late hath taken these Laws into His gracious and provident protection.

And upon due consideration taken of all these Cases, I resolved to proceed in the Exposition of this Statute, be­ing made perpetual by the Statute of 3. Edward 6. cap. 8.

And to speak something of the three first causes, I am of Antiquity of these Laws. Opinion for the Reasons and Authorities ensuing, That the Laws of Sewers have been and be of great Antiquity, and have told over as much time and as many years as any other Laws of this Realm have done: For as Mr. Cambden in his Cambden. Britannia saith, Quod insula Britannia avida in mare omni ex parte se projecit; Therefore this Realm adjoyning on every side upon the Sea, could not be safe without those provident Laws made and used for the defence thereof.

And although it is said in Scripture, That Almighty God In Manasses Prayer King of Judah. hath bound the Seas by the word of his Commandment, and had shut up the Deep, and sealed it with his terrible and glorious Name; yet God, who bestowed wisedom on man, it was his pleasure he should providently use it over the rest of the Creatures, not giving way that he should be remiss or presumptuous in any thing, which by his foresight or judgement might be prevented, helped and relieved.

It is true, that at the Flood, Cum cateracta Coeli fuerint Genesis cap. 7. [Page 4] operta, when the windows of Heaven were by Gods de­terminate will set open, and that the Seas did Suum excedere modum, no power of mans hand could stay the swallowing and devouring surges of the Seas and Waters; yet then notwithstanding had God appointed that his Servant Noah and his Children, and such Creatures as he appointed, should be preserved by the Ark, which was a work of their own hands; Therefore the Laws of God and Na­ture have appointed man to make provision for the necessary defence and safety of himself and of his Countrey; And the Laws of this Realm, most of which have received their primam essentiam from the Divine Laws of the Almighty, and have fetched their Pedigree from the Law of Nature, have a principio bene so predominant in this Kingdom of England, that they have never been wanting at any time, to provide for the safety thereof.

And if the Register be so ancient a Book as Sir Edward Cook in one of his Epistles hath there declared it to be, then it may give satisfaction in this kinde, that these Laws of Sewers were in these times of great iminency and autho­rity; For there I finde two several Writs or Commissions of that nature, The one authorizing certain persons to sur­vey the defences in the parts of Holland in the County of Lincoln; The other for the viewing and surveying of the Register in Oyer and Ter­miner. surrounded grounds lying between the two Rivers Humber and Auckholin in the said County of Lincoln; And the first of the said Commissions is set down verbatim in Fitz. nat. bre. fo. 113. Yet the first Statute which appears to us Fitz. Nat. bre. fol. 113. in Print, wherein the frame of a Commission of Sewers is set down, is the Statute of 6. Henry 6. Chapt. 5. Yet I make no question but the said Commissions expressed in the Ri­gister, 6. H. 6. cap. 5. and Fitz. na. bre. were in their forms long before Henry the 6. time; and that the Statute of Hen. 6. addes some more power and strength thereto then was before, having backt them with the power of the Parliament; and it is something additional in matter, as it was in power, as by both the Commissions compared together is apparent.

[Page 5] I do likewise finde in the 38. Edw. 3. Lib. Ass. plac. 15. That 38. Ed. 3. lib. Ass. pl. 15. a Commission was awarded to inquire of Bridges, and of the repairs thereof, which is a branch of these Laws: And Sir Edward Cook in his 10. Report in the Case of the Isle of Ely, saith, That the Kings of this Realm, before the making of any Statute of Sewers, might grant Commissions for the surveying and repairing of Walls, Banks and Rivers, and other defences. And of the same opinion is the books of Sir John Davies in his Irish Reports, in the Case of the Royal Pischary of the Banne. And Sir Edward Cook hath in Sir John Davies Reports. his first Case set the first Statute of Sewers to be in time the 9. H. 3. which is in Magna Charta the first volumn of of Statutes, and the most ancient that be extant in our 9. H. 3. Laws.

By all which is manifest, that these Laws have been received into the government of this Realm, in time as an­cient as any other were; And I am the rather herein con­firmed, for that in the ancient Commission expressed in the Register aforesaid, there be these words, That the King Ratione dignitatis suae regiae ad providendum salvationi regni sui circumqua (que) fuit astrictus: Wherein it is hereby made plain, That the King by the Tenure and Prerogative of His Crown, was bound to see and foresee the safety of this Realm; and so this Law is a Prerogative Law, and seems to be as ancient as any Laws of this Realm, and all Pre­rogatives be without limitations of time; Neither can it be presumed, that all or any Kings till the time of Hen. 6. were so improvident as to want these Laws, without the which the Realm could not be defended from the violence of that unmerciful enemy the Sea; wherein I do conclude, That these Laws of Sewers be as ancient as any other Laws of this Kingdom be.

The extent of this Law.

For the extent of this Law, the Title of this Statute shews it, viz, A general Act for granting Commissions of Sewers within the Realm, without any word of Restraint, other then these (where need should require) And although [Page 6] Expounders of the Laws be not tied to make the Title their Text, either for the body or the bounds of it, yet it may serve to give some direction in the Exposition thereof: But to make the Title to be the ground in the material Exposi­tion of the Law, may lead the Expositor many times into error: For in Stradling and Morgans Case in Plo. Com. the Stradling and Morgan. Title of the Statute was, For the true answering for the Re­venues of the King, and the words in the body did extend the same to the Receivers of Subjects; but there the Judges and Expounders of that Law went with the Title in a Sta­tute made in 23. Eliz. the Title of the Statute was For Po­litique 23. Eliz. Constitutions for the Navy; and in that Statute there was a new Fish day provided, which no man would have looked for under such a Title.

And Lucian an ancient Greek Poet compiled a Book, and in the Frontispiece thereof Intituled the same A Book of True Reports; where looking into it, there was not any thing true therein: So it appears though in Acts and Books the Titles and Stiles may give help in the Exposition, and may serve as an Index or Table to finde out the matter, yet it is not fit to relye upon them, but that they may be used or refused as occasion shall serve.

Howsoever there is better concord betwixt the Title and the Body of my Statute, for the corps of the Act perform as much as the Title promised, whereby the Inland Coun­treys of Notingham, Northampton, Huntington, Bedford and the like, may have the use of this Statute as well as the Ma­ritine Countreys of Lincoln, York, Cambridge, Norfolk, Suf­folk, Kent, Sussex, Hampshire, Devon, Cornwal, Glocester, Che­ster and Lancashire, if not in all, yet in part, as hereafter I shall make it appear in my second Lecture upon this Law.

And although both the Statute of 6. Hen. 8. and the Re­gister, and Fitz. Nat. Brev. make all of them mention in those Commissions of the County of Lincoln and of no other County, yet doubtless the Lawmakers and Judges of this Realm, and the Expositors did intend then, and did ex­tend them to all the Parts and Counties of the Realm. [Page 7] And yet I take it, that the first Original and the chief use of these Laws, was in the said Maritine Countreys, which stood in most need thereof, and especially Lincolnshire, where be the huge great and vast Fens and Marishes: But yet not­withstanding they may serve generally for all the Realm of England, as the extent of this Statute I read on hath bound­ed them.

So herein my conclusion is, That the extent of this Sta­tute is as large as the Realm of England.

The necessary use of it.

From the Title I am now come to the Preamble of this Statute, where the words be very solid and weighty; that is, That the King nothing earthly so highly weighing as the ad­vancing the common Profit, Wealth and Commodity of this Realm: By the which it may appear, That the making of this Law was of all other thought to be most necessary, and of greatest consequence, when the King preferred the same before any earthly thing: And the Kings care herein be­came his Royal Person very worthily, because by this Sta­tute Safety was brought to the Realm, and Wealth and Pro­fit to the People thereof; greater and better fruits then which, no humane Law can produce: And the chief exe­cution of this Law was most aptly left to the King, Ratione regiae dignitatis suae, whose Office doth, as the Philosopher truly saith, contain in it great Vertue, high Understanding, and Divine Wisedom, to whose high Government, as well our Persons as our Laws be committed, and the defence thereof is applied to his grave foresight.

And truly I have taken upon me to reade on those Laws of Sewers, as Mr. Marrow did in former times take upon him to Expound in his reading the Laws of the Justices of Peace, hoping this work of mine may prove as acceptable to the Commissioners of Sewers, as that of his was bene­ficial to the Justices of Peace; the use whereof being no less commodious to the Commonwealth then that of the Peace, being both general Laws of great use and esteem, and my self being for many years past a Commissioner in the [Page 8] County of Lincoln, I found that these Laws were dark and intricate, and came not usually within the reach and under­standing of such as were not well seen and studied in the Laws.

And because I found the use of them to be wondrous necessary, I did intend, when occasion served me, to break the Ice, and enter seriously into the Exposition of them. And therefore seeing these Laws being in time most ancient, in extent most large, and for the use most necessary, I have, with your kinde favor, made choise of them to frame my Reading upon; wherein, if upon your perusal you finde any scapes or errors, which may soon fall from Opinion, haec amice corrige, and such of them as you shall bestow your liking upon, hiis utere mecum; and this shall suffice touching my choise made of this Statute.

And as I have formerly declared and delivered the causes which stirred me up, and the reasons which confirmed me to read upon this Statute; Now I do intend to break it up, and I do divide it into these several branches or parts:

1 First, to make provision to resist the over flowing of the Sea upon the large Marsh grounds lying in the Maritine Countreys, which commonly be the surest for soundness, the greatest for compass, and the best for profit of all the Sheep-walks and Commons of this Realm, which take prejudice and loss only by the rage of the Sea.

2 Secondly, to provide also that the great fresh Rivers and Streams may have their passages made clear, and that their Walls, Banks and other Defences be repaired, kept and main­tained, whereby the fair, delightful, pleasant and fruitful Meadows and Pasture grounds which lie in the greatest abundance upon or near the Rivers, Brooks and Streams may be preserved from the inundation of fresh Waters, which many times annoy them, to the great and inestima­ble damage of His Majesties Subjects, which be Owners and Farmers thereof.

3 Thirdly, whereas Navigation, both for the Exporting of our Homebred Commodities, and for the Importing of [Page 9] Foraign Merchandizes is the chief inriching of this Nation, therefore Ports, Havens, Rivers, and other Navigable Streams and their dependencies, be put within the defence of this Law, being Ostia & janua Regni, for that by the mainte­nance of these the wealth of the Realm is increased, and the Inland Cities, Boroughs and Towns are made partakers with ease and small cost of the Seas Commodities.

4 Fourthly, likewise this Law giveth redress and remedy for the removing of such lets and impediments as are either hinderances to Navigation, or stops whereby the abundant Waters cannot have their free passage to the Sea.

5 And fifthly, because in the surrounded grounds there be most commonly the greatest use of Bridges, Calceys, Pas­sages and Ways, therefore this Statute hath taken order for them also, whereby his Majesties people may in those places for their persons and their goods have both Salvum & securum conductum.

In these five parts be all the whole materials of this great and worthy Law contained; and therefore according to the said division I have framed a Case for the first Lecture upon this Law.

The first Case.

A. Leaseth to B. a Mannor on the Sea Coasts for years, which hath incrementum & decrementum maris by pre­scription in the County of Chester, and the City there, (where a Commission of Sewers is) remainder to C. in Fee, Livery is given and taken by Attorneys at full Sea within the view; the Sea then leaves One hundred Acres of Land with the Shore divided in part from the continent by a Na­vigable Haven; The Lease expired, C. enters, the Prince ejects him, and the King seizeth this Relinquished ground.

My Opinion is, That the King hath a part, the Prince a part, and the Subject a part of this ground; and that it is all within this Statute, but no part thereof within this Commission.

Points of the Common Law.

The Points of this Case be three at the Common Law, and five by this Statute.

1 First, Whether Livery of Lands may be made within the view in another County, or not?

2 Secondly, Whether Livery by the view may be given or taken by Attorneys or not?

3 Thirdly, Whether in this case Livery and Seisin may be made by Attorneys, or that of necessity it must be made to the Lessee for years, and who must joyn in making of the Letter of Attorney to take the Livery? All which Points I must maintain Affirmatively, else C. the Subject cannot have any Lands at all.

The Readers Argument.

And as it comes to my turn, I intend to maintain the con­clusion of my Case: And first of the first Point.

Livery and Seisin is one of the most ancient approved [Page 11] Ceremonies of the Law which hath been used for convey­ing of Lands; and the Law hath a more respect thereto then to any other: And it cannot be denied, but that it is the most perfect form of any, by the which the Freehold and In­heritance of Lands is transferred from one to another, and all Subjects may give and take Lands by this Ceremony; but the King only is excepted, whose Prerogative is such, That as Lands cannot be taken from him, as King, but by Re­cord; so Lands cannot be given or granted to him, as King, but by Record: And in the same degree is a County Pala­tine in his County, because he hath there Jura Regalis: And this Livery and Seisin may be actually and really done and performed, or else it may be done within the view of the Lands intended to be conveyed.

And as touching Livery and Seisin to be actually effected if the Feoffment contain Lands in two several Counties, and Livery and Seisin be made in one County in name of both, this will not pass the Lands in another county, be­cause the Land passeth by the Livery, which is local, and not by the Deed.

But in an exchange of Land in two several Counties by Deed, the same is good, for there the Land passeth by the Deed.

But if one make a Feoffment of a Mannor lying in De­mesn in the County of L. and in services in the County of M. these services, and so Rents, will pass by attornment of the Tenants, though they lye in a foraign County; and so of an Advowson appendant, and such like, because those rents and services pass not by the local ceremony of Live­ry and Seisin, but by the ceremony of Attornment, which is personal, and depends upon the person which is transi­tory; wherein I take this difference, That if a Feoffment be made of a Mannor by Parol, the Advowson appendant, Villains Regardant, and Rents and Services by Attorn­ment of Tenants, will not pass to the Feoffee, till the de­mesns and Lands be first conveyd.

But if the Feoffment be by Deed, then the Rents and Ser­vices [Page 12] will pass by Attornment of the Tenants, and deli­very of the Deeds, before Livery and Seisin be made to pass the demesns.

Then seeing that Land in one County will not pass by Feoffment, by express Livery made in an other County; if then the same may be passed and conveyed by Livery within the view, is the question of our Case: And in my opinion they may, because it is a ceremony performed by the eye, which is a member or instrument which hath his ope­ration by aspect, Tam procùl quam propè.

But express Livery and Seisin, which is done by the hand, cannot in reason be extended to another place then where the body is: And although the eye be fixed in the head, annexed to the body, yet like the Sun, his beams are carried afar of.

And this Livery by the view, is not a Livery in the County where the body is, but properly in the County where the Land lay, which was the object of the eye; and in this case it is said to be Livery onely, and not Live­ry and Seisin, because the Seisin is properly when the party enters, and the entry of the party is that which perfects the work, which is in proprio commitatu. And for authority in the point, 28. Ed. 3. fo. 11. there is a Case according to my opinion, where the Husband at the Church door, when 18. E. 3. fo. 11. he was to take one to wife, he made a Deed of Feoffment of Lands lying in another County to the said woman, and then delivered the Deed to her, and shewed her the Land, then they married, and he entred in claiming to her use; and these Lands were thereby well conveyed to the said wo­man by this Livery within the veiw, in another County.

Now it is fit to be declared, what view is sufficient, for there be two maner of views, The one general, the other special: In the special view, every particular piece of ground is to be seen; but in the general view it sufficeth to take notice of the grounds by the place they lie in: and in my opinion. The general view in my Case will suffice. For if one make a Feoffment in Fee of a whole Island, or of a whole Man­nor [Page 13] or Town, and make Livery thereof within the view, this is good; and yet it is not possible to view every particu­lar piece of ground at once, for Trees, Houses and Hills might so be interposed, that the view could not be taken of some part thereof, yet notwithstanding veiw of the rest will pass.

Also if Lands be covered with Water, Ice or Snow, these will pass well in a Feoffment or Livery in the veiw.

In Brook Title View plac. 101. the Case there may give Brook 101. the rule to our Case; for there it is said in a Writ of view, It is not necessary that all particulars in Specie should be put in view, but to see the fields where the grounds lie pro­miscuously it will suffice, and is a good and perfect veiw.

Sed est vn auter diversitie concernant veiwe Carsi vn fait Feoffment de B. acre que gist del auter parte dam Mountaine tout hors del veiwe, la Liuerey de ceo nest bone sans expres veiwe tamen tout voile passer per veiwe de parte & sic in mon case on part' gist south le floud del mere ceo non obstant passe vt parcel del mannor.

Ascuns aver teneus & ceo Knightley pur vn in 28. H. 8. in 28. H. 8. Dier (que) Liuercy deins le veiwe doit touts foits este fait in cases de necessity ceo vrging in respect del chose ou del person, del chose quia leterre gist del furder side dun grand ewe ou in le ewe ou ne puit oste facile accesse del person, quia (que) le Feoffor ou Feoffee soit lame ou infirme, & detraher ceo in question Jeo aye mist mon case quia le Feoffment & Liuerey fuit ad plenitudinem maris tamen Jeo sue de opinion que Liuerey deins le veiwe puit este fait sans ascun matter de necessity ceo vrging & ceo Jeo collect per le liuer de 42. Ed. 3. Fitz. Feoffments 54. when the Son did give back the Lands to his Father as freely as his Father had 42. Ed. 3. formerly given the same to him; and this was within the view: and it doth not appear that either this Livery or the other made to the said woman in 28. Ed. 3. were made of any necessity urging the same.

And there be some persons which can neither give nor take by Livery within the view, and that is where the Feoffor or Feoffee is blinde: So a Major and Commonalty, Dean [Page 14] and Chapter, or other corporate and politique capacities cannot give or take within the view. Some have held a difference, that a Parson of a Church might not take by Li­very within the view to him and his Successors, because that came to him in his politique capacity, which had no Eyes; but if he were seized in the right of his Church, that he might infeoff I. S. thereof by Livery within the view, because this was a wrong to the Church, and there­fore A Conceit. was in the power of his natural capacity, which had Eyes.

But the main Point in my Case is, Whether Livery with­in the view may be given and taken by Attorneys; and whether the view is so incident to the person, that it cannot be imparted to another.

It is true, that the personal view cannot be lent to another, or divided from the person, no more can the personal touch or act of my hand be imparted to another; and yet ex­press Livery, which is the deed and act of the hand, may be done per auter maine.

Sir Francis Englefields Case in the seventh Report of Sir 7. Reports. Englefields Case. Edward Cook, gives us a pretty difference, where the act to be done is unseparably tied to ones person, and where not; as in the Case of Thomas Duke of Norfolk, where upon con­veyance of divers Mannors to Philip Earl of Arundel his Son, there was a Proviso, That the Duke might revoke the same upon signifying of his minde under his own proper hand in writing, &c. This power of Revocation was not transferred to the Queen by the Attainder of the Duke, because it was inseparably tied to his own proper hand: But the principal Case there of Englefield, where the Canc. in Combs Case. Lands were setled upon his Kinsman, with power, That upon tender of a Ring by him he might revoke the uses, and this was forfeit by his attainder, and the Queen by a Letter of Attorney made to two, did tender the Ring; for this was not precisely or literally tied to Englefields person, no more then payment of Money, or such like.

And so in our Case, though by the Law I take it that [Page 15] Livery within the view must be in the view of both the parties, yet this may be done by Attorneys; for as my own hand is not precisely tied by the Law to an express Livery, no more is my own eye expresly tied to this view.

And we see in views in an Assize, the under Sheriff, or 36. H. 8. Dier. the Sheriffs Bailiffs, by his direction, may make the view; and yet the Writ is direct to the Sheriff to do the same; Morse & Pen­ningtons Case. and in those Cases an intellectual view will serve, as if the Jurors know the Land; but such an intellectual view will not serve in a Feoffment, but there the view must be actual.

Yet I take this difference, that if a Letter of Attorney be di­rected to A. B. to make Livery and Seisin, he cannot do the same within the view, for therein he doth not pursue his war­rant; but if the Letter of Attorney be special, to give or take Livery within the view, I am of Opinion, then the Livery may in such a Case be given and taken by Attorneys with­in the view, as well as in Combes Case in Sir Edwards Cooks 9. Report, where it is affirmed that a surrender of a Copy­hold may be given and taken by Attorneys, which is as personal as this is in the taking part, because Fealty ought to be made.

Some things may in this Case be further aleaged in this third point, which I now have in hand, that is, Who must make the Letter of Attorney on the Feoffees part, whe­ther the Lessee for years, or he in the remainder, or both of them: For Lessee for years, it is to be noted, that his Estate hath not any perfection thereby, and he seems himself but a Deputy, and if so, then a Deputy cannot make a Deputy; but yet he is not meerly a Deputy, for if there be two Lessees, the Remainder in Fee to I. S. one of the Lessees may take the Livery and Seisin; yet if a letter of Attorney be made to two joyntly, one of them cannot take it; and if in our Case the Lessee had dyed before entry, the Livery might have been made to his Ex­ecutors, and powers and authorities cannot be apportioned and come to Executors in such maner; Ergo, It is more [Page 16] then a power of a Letter of Attorney for the reasons afore­said, and for these insuing: For the Lessee for years cannot be prohibited from taking his Livery by the Lessor, but a Let­ter of Attorney may be countermanded; yet the Lessee alone cannot make this Letter of Attorney, neither can he in the remainder make the same, because he could not him­self accept of the present Livery, neither can he meddle with the present possession which a Livery and Scisin yields.

But I am of Opinion, That Lessee for years, and he in remainder, must joyn in the Letter of Attorney, for these Reasons:

1 First, they were both one party to the Deed, so ought they to be to the Letter of Attorney, which is to give life thereunto.

2 Secondly, they be but in Law one Tenant.

Thirdly, they should joyn in Advoury.

3 And in many Cases, the Lessee shall have ayd of him in remainder, for the privity between their Estates; and al­though the Lessee gets no Estate by the Livery, yet he as­sists himself thereby, with the ayd and strength of him in the remainder, and the Livery goes through his Estate, and so passeth into the remainder.

Therefore my conclusion is, that they shall joyn in this Letter of Attorney; and hereby I suppose I have conveyed a good Estate in the maner to I. S. in the remainder, to maintain my position for him in the end of my Case, and here I end my three Common Law points, and now am come to the Statute.

The Readers Argument upon the Statute and Commission.
The Sea within the Realm of England.

FIrst, touching our Mare Anglicum, in whom the interest therein is, and by what Law the Government thereof is, is a fit question and worth the handling. And in my Argument therein, I hope to make it manifest by many proofs and precidents of great worth and esteem, that the King hath therein these powers and properties, videlicet.

• 1. Imperium Regale.
• 2. Potestatem legalem.
• 3. Proprietatem tam soli quam aquae.
• 4. Possessionem & Proficuum tam Reale quam Personale.

And all these he hath by the Common Laws of England: in the 6. R. 2. Fitz. Prot. 46. it is said, That the Sea is with­in 6. R. 2. the Legiance of the King, as of his Crown of England; This proves that on the Seas the King hath Dominationem & Imperium ut Rex Angliae, and this by the Common Law of England.

The Charter of the Admiral of England hath these words Admirals Charter. in it, Quod habeat potestatem in causis maritimis ac omnia bona waviata Flotsan Ietsan & Lagan ac omnia bona Mercimonia & ca­talla in mare depordita seu extra mare projecta ac omnia & singula casualia tam in vel super mare vel littora crecas vel coster as maris quam in vel super aquas dulces portus flumina rivos aut alios locos superinundatos quoscunque inter Fluxum & refluxum maris ceu aquae ad plenitudinem à quibuscunque primis pontibus versus Mare per totum Regnum Angliae.

1 Imprimis, this Charter is under the great Seal of England, quod est Lex Angliae.

2 The King grants to the Admiral thereby power in Ma­ritine Causes, which proves the Kings legal power and jurisdiction on the Seas.

3 He grants to him bona in mare deperdita super mare emer­gentia [Page 18] & extra mare projecta, which be Profits arising on the Sea.

4 And all these are said to be per totum Regnum Angliae; Ergo, the Seas be infra Regnum Angliae.

In the Eleventh Chapt. de Prerogativa Regis it is de­clared, Quod Rex habebit wreccum Maris per totum Regnum & Prerogativa Regis, cap. 11. Balenas & Sturgiones captos in Mari vel alibi infra Reg­num Angliae: and this was by the Common Laws before ever this Statute was made; for as the King was and is rhe most Excellent Creature within his Realm, so the most Excellent things which Land and Sea afford are appropriate unto him. And this Statute also proves the Sea to be infra Regnum Angliae, and that the profits therein, and thereon a­rising belong to the King by the temporal Laws of England.

In the Case of Sir Henry Constable in the Fifth Report of Sir E. Cook, it is said, That Flotsan, Jetsan and Lagan are goods Sir Henry Con­stables Case. on or in the Sea, and that they belong to the King, and the King by his Charter granted them to the Admiral.

The Statute of the 18. Edward 3. Let the Sea be open to all Stat: 18. E. 3. 28. H. 8. Strangers: and the Statute of 28. H. 8. Chapt. 15. If any Treason, Murther, or other Felony be done on the sea coast, the Offendors shall be tryed in such county as the King shall appoint by Commission to be directed to the Admiral and others, to try the same per Sacramentum duodecem, which is by Jury.

And the Statute 31. H. 6. Chapt. 4. there is a Restraint, 31. H. 6. That no Subject do attache any Stranger in amity within this Realm on the Sea.

Here the Statute Laws are in force on the Seas, as appears by the examples; but these seem to tye the person only. Sir John Davies.

And in the Irish Reports of Sir John Davies, in the Case of the Royal Pischary of the Banne, it is said, That the Sea is the Kings proper Inheritance.

And Mr. Bracton lib. 2. Chap. 12. in his Title de acquirendo Bracton. L. 2. Ch. 12. rexum dominio, setteth forth a prescription in these words, Quod I. S. & antecessores sui fuerunt quiet' de Theolonio & aliis consuetudinibus dandis per totum Regnum Angliae tam per terram quam per mare; and many times in that Chapter he reiterates [Page 19] the same words; which is a strong proof that the Sea is infra Regnum Angliae, and that the King Governs there by his Common Laws of England; for that prescription is a main and material point of the Common Law: And the like is alleaged in Sir Henry Constables Case by way of Custome in the Citizens, as of Bristol, to have Flotsan on the Seas be­tween the high water and the low water marks.

So I take it I have proved the King full Lord and owner of the Seas, and that the Seas be within the Realm of Eng­land; and that I have also proved it by Ancient Books and Authorities of the Laws, and by Charters, Statutes, Cu­stomes and Prescriptions, that the Government therein is by the Common Laws of this Realm.

One Case and one Statute seem to sway to the contrary, Lacies Case. and that is Lacyes Case, where one was stricken on the Seas, and dyed on the Land, that the Common Law could not try this murther: It is true, because that tryal was to be by Ju­ry, which must come out of a proper county, which could not in this case, because the Sea was not within county ground, and so no Jury could be summoned there.

And I acknowledge that the King ruleth on the Sea by the Laws Imperial, as by the Roll of Oleron and other; but that Le Roll de Oleron. is only in the particular Case of Shipping, and for Merchants and Mariners: But the King hath neither the properties of the Sea, nor the real and personal profits there arising, but by the Common Laws of England, and in proof thereof the Book 15. and 16. Eliz. in Dyer, where the grounds gained from the Sea pertained to the Queen, which must 15. 16. Eliz. Dyer. needs be by the Common Law of England; for no Law gives the King any soil but only the Common Laws of England; so this is sufficient proof for the real profits, and for the personal profit the Charter of the Admiralty and other Cases aforesaid make it manifest.

And there is a Statute made in 1. R. 2. Chapt. which re­strains 1 R. 2. Rast. Admiralty. the Admiral that he do not meddle with any thing done within the Realm but on the Seas; by which it may be collected, that the Seas be not within the Realm of Eng­land: [Page 20] But in my opinion the intent of that Statute did ra­ther limit the Admiral how far he should extend his Juris­diction, then any way to set forth the bounds of this Realm: wherein my conclusion herein is, That my Statute hath his extent within all the Realm of England; and that English Seas being within the Realm, be within the bounds of my said Statute of Sewers, and that Statute Law is in full power on the Seas, as by the Cases and Statutes mentioned former­ly doth appear.

Of Islands.

BEcause in my Case in matter, though not in express De Insulis. words there is an Island, therefore it comes now fitly in turn to declare whose the same is in ownership, and what Laws the same is to be governed by: And first, of the de­finition thereof: Justinian in Suis Institutionibus saith, that Difinitio Insule. Insula est locus undi (que) circumdatus aquis, pag. 153. And with this agreeth Britton, in his Title of Purchase, England of Anglia it self is not Insula, because it is not undi (que) circumdatus aquis. But England and Scotland be one intire Island, and the most Scotia. famous in the whole world; England, take it per se est peninsu­la, that is penè Insula, almost an Island; for on all parts it Peninsula. joyns to the Sea, but towards some parts of Scotland.

Gernsey and Jernsey be Islands on the Sea, but it seems by the Resolutions in Calvins Case 7. Report, That they be Gernsey. Jernsey. not within the Realm, nor governed by these Laws, be­cause the King hath them by His Title of France.

The Isle of Man was in times past a petty Kingdom, and had a King, but he was onely as a Viceroy, and under the Man. King of England as by a Record.

Where Artold King of Man made suit to the King of England to come into England; but whether Man be with­in the Realm or not, seems to be put without question in Sir Edward Cooks Case of Calvin, and by Kelwayes Reports, 11. H. 8. that it is not, for there an office found after the death of the Earl of Darby by a Writ out of the Chancery 11. H. 8. Kelwayes R. [Page 21] of England was avoided, because as the said books do affirm Man was not within the Realm of England; but under the favor of these books, that is, no necessary cause to avoid that Office; for in my Opinion the said Office of the Earl of Darby was void, quia in Man breve Domini regis non Currebat, and so in the county of Palatine of Chester, breve Domini regis non Currit, 161. tamen Committatus Cestriae est in­fra Regnum Angliae. Mr. Cambden in his History de Insulis is Cambden. of Opinion, that Man was a Member of the Realm of Eng­land: and therein he hath these words, That Man is an Island scituate in the midway between England and Ireland. Sed de qua utri (que) terrarum applicari de Jure debuerat ab antiquis non ambigebatur demum in hunc modum lis ista quievit quoniam advectos perculi Causa venemosos haec terra vermes admisit ergo Eam Britannis applicandum Censura Communis dictavit, by which it may appear, that the Isle of Man was within the Realm of England; or at the least a member thereof.

But I do take the Isle of Wight Originally to be parcel of England, and is a part of the County of Hampshire, and was Wight. as it were divorced from the continent as was Cecily from Italy; the one, as Poets feign, was parted from the continent or main Land by an Earthquake; the other, as is imagined, by the rage and violence of the Sea: Insula vectis inquit Camb­denus in suis insultis Britannicis, Fol. 707. est pars Commitatus Cambden 707. Hamtoniae & à Continente Britanniae avulsa est ut Cohaesisse uvi­debatur, for many do imagine that it was torn from the main Land by the violence of waters, as of late years parcel of the Spurnhead in Yorkshire, which before did adhere to the conti­nent was torn therefrom by the Sea, and is now in the nature of Island: Yet the same is within the Realm of England, and remains parcel of Yorkshire; and the like is said of the Island cald Silly, scituate Many other ancient Islands there be, which being in the English Seas be parcel of this Realm, which I will pass over to avoid prolixity.

But in our Case a new Island is risen up in the Eng­lish Seas, to whom the same in point of property and owner­ship Nova. Insula. shall belong, and what Laws the same shall be governed [Page 22] by, comes now justly to be disputed of. Justinian in his Institutes, De rerum Divisione, saith, Quod insula in mari nata Justinian. (ut Delos) est primi occupantis. And Britton, one of our anci­ent Britton 86. Writers in his book Titulo Purchase, fol. 86. saith, That if a new Island rise up in the Sea, datur primo occupanti, and agreeth fully with Justinian therein; but saith he, If it be taken or divorced from the continent, then it continueth to the former owner; but clearly our Law of England doth not agree with either of those Authors in the point of owner­ship. For if as I have formerly delivered it, the Sea in proper­ty, possession and profit, tam in aqua quam in solo, belongs to the King in the right of His Crown of England, as I take the Law clearly to be, then it followeth as a consequent, That the grounds which was the Kings when it was covered with waters, is His also when the waters have left it; For our Law admits not any thing, either real or personal to go pri­mo occupanti; but when an owner cannot be found, the Common Law gives it Domino Regi, as Waifs, Strays, Wreck of the Sea, Treasure found, Escheated lands, and such like; so that my opinion is conceived in this, that in point of owner­ship and property, the said new Island is the Kings.

But yet I am likewise of opinion, That a new Island risen from the bottom of the Sea, although it be within the Realm, yet it is neither within county, Parish nor Town of this Realm, till the King by his Edict or Proclamation have so declared it.

There may be Islands also within the Land compassed about with fresh Rivers, as the Isle of Axholm in the county of Lincoln, and Sheppey in the county of Kent, and divers others. But Mr. Bracton in his Book de acquirende rerum Bracton. Liber. 1. cap. 2. dominio, doth very well deliver the Law concerning his new Islands which arise in great Rivers; his words be these, Habet etiam locum eadem species accessionis Insula nata in flumine quod si quidem medeam partem teneat Communis est eorum qui pro indiviso ab utra (que) parte fluminis prope ripam praedia possident pro modo latitudinis cujuscun (que) fundi que latitudo prope ripam sit que si alteri parti proximior sit, eorum est tanta qui abea parte [Page 23] prope ripam praedia possident: Si autem insula in Mari nata sit quod raro accidit occupantis fit. Domini Regis non tamen credas proprium alicujus agrum informam insulae redact insulam esse ut ecce flumen dividatur in superiori parte & circuit agrum alicujus & demum infra in quo casu ejus erit ager cujus prius fuerat: Cavendum quo (que) erit in metienda vicinitate insularum quia potest quis in hoc de facili decipi ponatur igitur punctus quod in medio inter utrum (que) agrum & secundum hoc si insula Citra, punctum sit vel hujus tant' vel illius tant' erit si autem sit & citra punctum & in ipso puncto & ultra tunc proindiviso: Communis erit ut tantam mihi de ipso insula cedat qua continentur in medietate pun­cti us (que) ad agrum meum. Si autem insula rotunda inveniatur hoc observetur quod omnè quod propinquiùs est mihi cedat, & ita vicino cedat quod ei vicinius erit.

But whether the Laws of this Realm be of force in the said new sprung up Sea Islands, or not, is a question: It ap­pears in Calvins Case, and in the Case of the Tanistry in the Irish Reports, That if the King conquer an Island or Nation, the same is no part of England, nor the Laws of England there in force, till the King shall so declare the same, but the own proper Laws seem to be in force there; but if the King conquer a Nation from an Infidel, there the an­tient Laws of that Nation upon the conquest are extinct; but the Law is not so of another Christian Region, as Callis, Callis. Guyen. Bulloign. Ireland. Guyen, Bulloign and the like. And although Ireland was under the obeysance of the King, yet the Laws of Eng­land were not there in force, till the King so declared the same.

And although Wales before the Reign of E. 1. was with­in the Fee of the King of England, yet was it not parcel Wales. thereof, till the Statute of 12. E. 1. so made it; and al­though that Statute so annexed Wales to England, yet being but by the word or figure adjuncta, the Laws of England were not totally in force there till the Statute 27. H. 8. so declared them, as is holden in Rice Thomas Case in Plo. Com. but not­withstanding whether Wales be within my Statute, or not, is questionable, for these Reasons following: First, it is [Page 24] clear that a general Law unstinted and unbounded shall ex­tend to Wales as well as to England; but our Law grants Commissions within the Realm of England, and so pre­cisely prescribes it to bounds, and it may seem that the Parli­ament took it so in 1. Mar. Cap. 11. where Commissioners of Sewers were authorized in the county of Glamorgan, which, as may be objected, need not, if Wales had bin formerly com­prised: and some new Statutes, as that of Alehouses in 1. Ja. Cap. 9. and that of Rogues, 1. Ja. Cap. 7. extend the same to the Realm of England and Dominion of Wales, as if Wales should not be contained in the words (the Realm of England) yet notwithstanding in my opinion this Statute of 23. H. 8. extends to Wales; for although the Statute of the 1. Mar. gave power to Commissioners in Glamorganshire, that was for a special purpose, which, as was conceived, the Sta­tute of 23. H. 8. did not in England extend thereunto, that as for the carrying away of the sand which was thrown upon their grounds; but in that Statute it may well be perceived, that the Statute of 23. H. 8. was of force there; and in­serting the words, Dominion of Wales, in the said Statute of Poor and Rogues, was rather of superabundance to sa­tisfie some which might nodum in scirpo querere, make a doubt where none was, then that they were there put for any necessity requiring the same: But I am of opinion, that in this new sprung up Island the Laws of England are there in force, because when it was Sea the same was under the Government of these Laws; and although the nature and quality thereof be changed, viz. Dry Land for full sea, yet the same Laws and Government remain in force; so that I hold this new Island within the Statute, and that the pro­perty thereof is the Kings.

Now occasion and time gives me fit opportunity to treat of Grounds which be newly gained from the Seas. If as I have formerly declared, the Grounds be the Kings when they be covered with Waters, it must needs be held an in­fallible ground, that they be also the Kings when the Wa­ters have left them dry; and when the Waters had their [Page 25] being on the same, the whole Profit there arising did apper­tain to the King; yet I have known in some Countries where the Frontagers have claimed those grounds so left, by a pretended Custome of Frontagers, and some probable reason might be shown, wherefore they should have the same, for as their grounds was nearest the Sea, and so next to the charge to repair the defence, and next to the loss where any overflow happened, it might therefore seem reasonable, that as they were put to the greatest charge, and in peril of the loss of their Lands, that so if Lands were left by the Sea affront them, that these Lands might accrew unto them as a reciprocal consideration for their charge and loss; but I take it that of late the Law hath in these Cases been often-times ruled for the King against the Subject; for at Crost in the county of Lincoln, 1600. Acres were gained from the Sea, affront the Mannor of sir Valentine Brown there, yet he was put to obtain a grant from the King thereof: and one Bushey of St. Kegneys claimed grounds left by the Sea, by the said pretended Custome of Frontage, but they were decreed against him in the Court of Wards, in 12. Jac. R. in which Case I was of Counsel: For it were inconvenient that the subject should have Frontage, and yet no bounds prescribed thereto; so that Ten thousand Acres might be left affront a mans Mannor, which were not fit a subject should have this large Inheritance by pretence of such al­lowed Custome; and I suppose I may herein say in this Case, as Mr. Plowden doth of his silver Mines, That it is inconvenient a subject should have the silver Mines in his grounds, for so might he become richer then the King.

So it is not fitting that a subject should have the grounds left by the Sea, when so much may happen to be left as the Kings own Lands in the Realm come to; and so because nimium se exaltat in prerogativam Regis, I am of opinion the new gained grounds from the Sea appertain to the King as a Royal Escheat, and not to the subject; but in my Case here is a prescription where the owner of the Mannor hath Incrementum & decrementum Maris; of what force this is of, [Page 26] is now to be argued; therefore I will now declare what in­terest a subject can or may challenge in the seas, in grounds gained therefrom.

Personal profits arising on the sea, subjects may have and challenge by custom and prescription, as to have free Pis­chary on the sea; and a Parson had Tythes of Fish gotten in the sea by the inhabitants of his parish; & yet the sea, nor any part thereof is not in any Parish, but it followed the person.

In Sir Henry Constables Case, the Citizens of Bristol Sir Henry Con­stables Case. claimed Flotsan (which be goods floating in the sea) by custom, in Bracton Chap. 12. one aleaged to be dis­charged Bracton. of Toll or Custom on the seas by prescription, in the Case of the Swans; in Sir Edward Cooks 7. Report, one prescribed to have a game of wilde Swans at Abbot­berry, in a Creek of the sea, which is a member or arm of Case of Swans. the sea: and in Sir Henry Constables aforesaid, it is taken and received for Law, that a Subjects Mannor may extend to the low water-mark by prescription; and seeing all these a subject may have in and on the Sea, wherefore then should he not have all the grounds left by the Sea by prescription? To that I answer, That he cannot have claim in any thing by prescription and custome, but that which lyeth in use, which is the life of them both; but lands and grounds which have always been Sea, could not be nor lye in use, and therefore they cannot be claimed, nor the same can be bounded out by prescription or custome; yet lands between the high-water mark and low-water mark the bounds there­of may be prescribed to belong to, or to be parcel of the Mannor, because in every twelve hours, or in every day they lie dry, and so a Subject all that time may have use of them, and so of all the rest of the said things, but in that which never lay in use, no custom or prescription could take hold on, insomuch that in my Opinion, no prescription or custome can fetch lands further then the low water-mark.

Grounds left.

But now what grounds shall be said a leaving by the Sea, is a point in my Case also, for it is certain that at spring­tides the Sea useth to overflow the Marshes in Lincolnshire and Norfolk, and returneth within a short space again; these being usual and annual, be not accounted grounds left or gained from the sea; so because the Marshes in Lincolnshire and the Sands in Lincolnshire be overflown every twelve hours, and then dry again, are not accounted grounds left or gained from the sea, because the sea hath daily her recourse thereon: and therefore in 15 and 16 Eliz. in Dier fo. 326. 15. Eliz. Dyer 326. in the Case there was a quantity of ground was left by the Sea, and whether the King, or he whose grounds were ad­joyning should have them, was there made a question; but in that Case there is an excellent president set down, very apt for the handling of this point, put in 43 E. 3. Contra 43. E. 3. Abbot'de Ramsey de quodam processu in Scacario facto versus dict' Abbot ad ostendendum quare Sexagint' acrae marisci in ma­nus dom' Regis non debent sesiri quas predict' Abbas appropriavit sibi & domui suae sine licentia Regis super quandam presentation virtute cujusdam generalis Commission' de terris à Rege detentis & concelatis. Abbas respondit quod ipse tenet maner' de Brauncest quod scituatum est juxta mare et quod est ibid quidam mariscus qui aliquando per fluxum maris minoratur & aliquando per de flu­xum maris augetur abs (que) hoc quod appropriavit sibi prout per pre­sentation' predic' supponebatur. And the Attorney of the King maintained the contrary, and therupon the King and the Ab­bot were at an issue; so by the Case I gather these matters:

First, That if by little the Sea sometimes decrease and leave some parcel to the Land, and some other times run over the same again, this ground belongs not to the King; for these be grounds whereto the subject may have a pro­perty, as in the grounds of the shore, but otherwise it is where great quantity of ground which had always been drowned before is left, that belongs to the King.

Also by this president the Law was taken to be, that these grounds left by the Sea to the Land, were in the Coun­ty [Page 28] of Norffolk, whereto they did adjoyn, and in my opini­on within that Parish whereto they lay; for there was a Pre­sentment, which was by a Jury of Nofolk, and the Jury taken to try an Issue must be de viceneto ejusdem commitatus: but note there, the Presentment was by a Jury de Corpore Commitatus, in 22. lib. Assis. pl. 93. The Case was, That 22. lib. Ass. pl. 93. a River of water did run between two Lordships, and the soil of one side, together with the River of water, did wholly belong to one of the said Lordships, and the River by little and little did gather upon the soil of the other Lord, but so slowly, that if one had fixed his eye a whole day thereon together, it could not be perceived; by this petty and unperceivable increase, the increasement was got to the owner of the River; but if the River by a sudden and unusu­all flood had gained hastily a great parcel of the other Lords ground, he should not thereby have lost the same: and so of petty and unperceivable increasements from the sea, the King gains no property, for De minimis non Curat Rex; but put the case the sea overflow a field where divers mens gounds lye promiscuously, and there continueth so long, that the same is accounted parcel of the sea, and then after many years the sea goes back and leaves the same, but the grounds are so defaced, as the bounds thereof be clean extinct and grown out of knowledge, it may be the King shall have those grounds; yet in Histories I finde that Nilus every year so overflows the grounds adjoyning, that their bounds are defaced thereby; yet they are able to set them out by the Art of Geometry.

These grounds in my Case which are left by the sea, and The Prince count Palatine of Chester. lye from the haven next to the shore, are as I have former­ly delivered it, within the county Palatine of Chester; and therefore, whether the Prince or the King shall have them, is now my question: The Prince hath not only Jura Regalia, but also Escheta Regalia within his said Palatinate, and so in my opinion is not only owner of the county, but Lord of the Prerogatives there, and all Jurisdiction is to the Prince, only a Writ of Error lieth in the Kings Bench of a Judge­ment [Page 29] there, like an Appeal to Caesar, then he is Lord of those Laws by which the Freehold and Inheritance of those lands be ruled, wherefore then should not these lands belong to his Grace? And first it is usual to have a Commission di­rected to enquire of these Lands ut de terris concelatis, and this inquiry shall be by Commission; if that Commission be to issue out of the county Palatine of Chester, then the Lands would questionless fall to the Prince, and the inquiry to be made of the Freeholders of the said county Palatine. The Case put in Barkleys Case in the Comment. of Mr. Plow­den, fo. 129. doth force much against the Princes Title; for there it is put, that the Bishop of Durham had Liberties and Priviledges in Terris suis inter Fluvios de Tyne de Tese, and af­terward purchased moe Lands between these two Rivers, the said Liberties and Priviledges shall not extend thereto; and so if one have a Warren in his Lands in Dayle, and he purchaseth other Lands there, his Warren cannot be ex­tended upon these new purchased Lands, for saith the Book, Things or Priviledges confined to certain Precincts or Domi­nions, cannot be extended further, though the Dominion be in­larged, and that they shall not be inlarged with the inlargement; but the County Palatine vested in the Prince, is pre­scribed within no other bounds then the word County doth confine it; and therefore this falling to be within the county, should be properly his, and as I am imformed, the Prince hath special words therefore in his Charters, if it were granted that these grounds could be claimed by Charters; but I am clear of Opinion, That no increase of the new left grounds can possibly become within the county of the city of Chester; for the bounds thereof can­not extend over that circle which their Charter hath con­fined them to: and so for the causes and reasons formerly declared, I take it, That the said Island is the Kings, the ground left between the haven and the ancient shore, be­longs to the Prince as Earl of Chester; and the shore be­cause of the said prescription appertains to C. the Subject as parcel of the said Mannor; and so according to my said [Page 30] conclusion of my Case, here the King hath a part, the Prince a part, and the Subject a part of the grounds left by the Sea.

My Tenets therefore be these:

1 First, that the Subject may have the grounds of the Sea to the low-water mark, and that no Custome can ex­tend the ownership of a Subject further.

2 That a Subject cannot have the grounds to the low-water mark, but by custom and prescription, and I take it that it is very disputable whether grounds before they be relinquish­ed by the Sea, may be gained by Charter and grant from the Crown; I suppose they may.

3 That the words incrementum & decrementum maris are fully described by the said Record of 43 E. 3. of the Abbot of Ramsey: that is, That if the decrease of the Sea be by little and unperceiveable means, and grown only in long tract of time, whereby some addition is made to the Frontagers grounds, these by these words may appertain to the subject; and herein the said words have no other operation, but Lands left to the shore by great quantities, and by a sudden occasion and perceiveable means, accrew wholly to the King.

4 That the increase to the said County Palatine, for the causes aforesaid, doth appertain to the Prince as Earl of Chester.

The Shore.

BUt now I am arrived at the continent, and the first ground I set my foot on is the shore, which in Latine is called Littus Maris, it taketh the name wholly from the sea, as partaking most with her nature, and so Ex digniori parte appellatur; yet it is not all one with the Sea, nor with the Land, but participates with them both: And Mr. Bracton in his second Book, Chap. 12. saith, That Littora Maris Bracton. accessoria, what the shore is appears by Justinian the Emperor in his Institutes, lib. 2. pag. 141. and is there thus defined, Justinian. [Page 31] Littus Maris est quous (que) maximus Hibernicus, & jus fluctus eluderet & quous (que) fluctus Maris in estate longius exestuat; and with this agreeth Cicero Topicorum, The shore is not counted for lands or grounds gained from the Sea, or left by it, because at Cicero. every full Sea it is covered with the waters thereof. In the 13. Chapter of St. Matthews Gospel, ver. 2, 3. it is said, That Mat. 13. 2, 3. our Savior Jesus went into a ship and sate there, and the whole multitude stood on the shore, and he spake unto them: Hereby it appears, that the shore was the dry land, because they stood thereon; and it was a great quantity of ground, for thereon stood a multitude, and it was near the brink of the water, because they heard Jesus speak unto them out of the ship. In point of property and owner­ship it is the Kings, as Lord of the seas; but as Sir Henry Constables Case is, a subject may have the same, as belong­ing to his Mannor by prescription. In the Imperial Law which the Civilians use, the sea shore is held to be common to all, and that it is as lawful for Diogenes the poor Cinick, as Cressus the rich King, Casam. 161. Ponere & retia siccare; but our Common Law of England doth in reason much surpasse either the Imperial Law or the Civil Law, in distin­guishing upon these; for it is said, Rex in ca habit proprietatem sed populus habet usum ibidem necessarium: so that as to the lading and unlading of ships, and for drying of Nets there, and for other necessary businesses, the subjects have these uses therein, but the soil and grounds thereof belong pro­perly dom' Regi. And a subject may have the same by prescri­ption, and therefore such as hold the shore to be the extreme point both of land and water be in a great error, for as Iusti­nian saith in his Institutes, Quod gemmae & lapilli praeciosi inve­niuntur, which can be taken no otherwise sed super terram aqua relictam: so that this shall suffice to have said concern­ing the sea shore.

Sea Coasts.

THe coasts of the sea come next in order to be treated of: Costera maris be words well known, but their confined definition is hard to be found out; yet certainly they con­tain the shore and banks, for by the Statute of 27. Eliz. Chap. 24. an Act was made for the mending of the banks and 27 Eliz. 24. sea works on the sea coasts; but in the 7. Chap. of Maccabees coasts have a larger extent, for there Demetrius Son of Se­leucus departed from Rome, and came to a city of the sea Maccabees 7. coasts: here a whole city is set on the sea coasts, and in Iustine treating of Alexander the great, it is reported of him, that he entred into Licia and Pamphilia, and won and conquered all Justine. the sea coasts; this could be taken for no less then whole countreys; for Alexanders great minde and huge Army, could not march on a molehil, or small tract of ground: In St. Mark, Chap. 7. it is thus written, That Jesus departing from the Coasts of Tyre and Sydon, came to Galile, so that it may thereby be gathered, That these coasts were neer the sea, for our Savior was no sooner out of the coasts but he was on the sea, which shews that sea and coasts be contiguè Iacentia, yet no certain definition can I finde of the words Coasts of the Sea, but by these and such like descriptions; yet this I gather and collect thereby, that in respect of the whole World, a whole Kingdom lying next may be said to be a sea coast, and a whole county in respect of a Kingdom; and in my opinion the next town and territories thereof lying next to the seas, be in our Law taken to be the sea coasts and no other; and therefore some do much erre which take coast to be the edge of Land next the water, and shore to be the brinks of the water next the Land quasi duo opposita.

And because Creeks, Havens and Ports be all of them within the charge of this Law, and this Statute was ma­terially made in defence thereof, and as they differ in appel­lation, so they vary in definition, yet they do in some things agree in the material; I will therefore deliver my opinion of them.

Creeks.

CReeks of the sea is an Inlet of sea cornered into the main Land, shooting with a narrow passage into some Angle of the Land, and therein stretching it self more then ordinary into the Land, and so holdeth not even quarter with the Levant sea; and such Creeks or Inlets we com­monly term in the Law to be arms of the sea: for like as the arm of a man shooteth out from the body, so by a me­taphor the inlet or corner of the sea let into the Land, is called an arm of the sea; and although it go far into the land, yet the points of land on both sides may well be discovered: and this appears in that great arm of the sea on Humber, where it runs betwixt Lincolnshire and Yorkshire, the points of either county may be seen at once, and seem to stand even over the one to the other.

Arm of the Sea.

ANd an arm of the Sea is said to extend into the Land so far as the flow and reflow goeth: In the Patent of the Admiral of England I finde this word Creek used; for there the King granteth to him omnia bona mercimonia & Catalla in vel super Mare littora cre­cas & Costeras Maris, but it differs much both from the shore and coast; for a shore is sometimes dry Land, and sometimes water, a coast is always dry land, but the Creek is always sea and new land: In the Statute 28 H. 8. Chap. 15. Rastals tryal, A. It is that all felonies, &c. done upon the Sea, Haven or Creek, where the Admiral hath Jurisdiction, shall be tryed in such county which the King shall appoint; by the Statute it is manifest that the Creek is not all one with the sea, nor the same that a Haven is, by the Statute made in the 4 H. 8. Chap. 20. Rastal ships, 5. ap­points 4 H. 8. cap. 20. that all Merchandizers entring in or going out of the Realm of England, should be charged and discharged in Diversity be­tween the shore. [Page 34] great Ports, and not in Creeks or small arrivals; by which A Coast. Statute it is apparant that a Creek is not all one that a Port is: A Creek. But yet here it seemeth to be an Inlet of the sea where ships may have their arrivals, as at Fosdyke, Stow, Wainflet, and Creek. such like; and I take it that a Bay and a Creek be all one, Bay. and that a Mere and a Fleet be also of that nature, and that all these rather vary in words then in matter. Fleet & Mere.

A Port.

A Port is a harbor and safe arrival for ships, boats, and ballengers of burthen, to fraught and unfraught them at, as by the said Statute of 4 H. 4. appeareth: In the Irish Re­ports, Fol. 56. Ports be said to be Ostia & Ianuae Regni; I take a Port to be some special place in some great Borough, where arrival of ships be, as the Cinque Ports, which be Do­ver, Sandwich, Rye, Rumney, and Winchesley, the most famous in this Realm, and these be places of great priviledges: and Bo­ston, Hull, Lyn and Plymouth, be also Ports and Port Towns, where special offices & officers belonging to them, touching Merchants & Merchandizers. And the said Statute of 4 H. 4. directed that Merchants should be charged and discharged at great Ports, was for that there were Officers for the King, deputed to receive His Highness customs and profits there­upon arising; hereupon came that Officer called Portgreve, Hollingshead. which signifieth the Governor of the Port, as Mr. Cambden Cro: p. 120. 6. noteth page 244. the difference between a Creek, a Haven Cambden 244. and a Port, be these;

Diversity between a Creek, Haven and Port.

A Creek is a corner of the sea let into the land farther then ordinary, and more then the sea is, but it is no usual or accustomed place of arrival for ships; and commonly it hath neither safe harbor nor legal priviledge.

A Haven is properly a safe place of harbor for ships, but may be without any priviledge at all, of which kinde I know some.

[Page 35] And a Port is not onely a safe harbor for ships of the greatest burthen, but it is also always graced with legal pri­viledges; and this appears so by the Statute of Magna Charta, Magna Charta, cap. 9. cap. 9. Quod omnes Communitates & Barones dequin (que) portibus & omnes alii portus habeant omnes libertates & liberas Consuetu­dines, which proveth my former difinition of Ports to be true.

After all these difinitions and distinctions, I have now prepared my Case ready to receive his censure upon the last conclusion; that is, That all the said grounds were within this Statute, but no part thereof within this Commission of Sewers: and therefore it is first to be noted, That these grounds were left by the sea since the awarding of this Commission, and the words of the Preamble of this Sta­tute speaks of grounds heretofore won; which word (Here­tofore won) seemeth to tie the Statute and Commission, both to grounds left or won before the said Statute, and not such as be won after, like to the Statute of West. 2. de Do­nis conditionalibus quod ad dona prius facta non extenditur, which excludeth out of that Statute all gifts made before. And the words (Heretofore and hereafter) are words of con­sequence in point of time; and wheresoever they are spoken, they come with an Emphasis, as if they required express ob­servance; and so is the Statute of 32 H. 8. cap. 28. of Leases, that Statute is of all Leases hereafter to be made by Cove­nant in tail, with such cautions and proviso's as be limited and set down in that Statute, should be good Leases for­merly made, though all the proviso's in the said Statute were observed, were notwithstanding by reason of the said word Hereafter out of the relief of that Statute.

And so in the Statute of Wills 32. H. 8. which had these words in it, All persons having Lands, or which hereafter should have, might devise; this did not make good any de­vises of Lands made before: but if this should pass for currant, then I should not perform my word in my conclusion, which puts it all within the Statute; and this exception, if it were material, would not put it onely out of [Page 36] the Commission, but the Statute also; yet notwithstand­ing though the construction made of all the said former Sta­tutes, stand with Law, by reason of the said words (Here­tofore and hereafter) yet in this Statute of Sewers, the same be not material, neither be the said words (Heretofore won) to be precisely observed, because they be placed in the Pre­amble of the Statute, and not in the enacting part of the Law, as in the said former Statute they were: And Expo­sitions are not tyed to Titles and Preambles, which many times comes short of the parts of the Law, but to the body and enacting part of the Statute, which is the matter and substance: And hereupon the Statute of 21 H. 8. cap. 15. of Leases recites in the Preamble thereof, That whereas divers Leases had aforetime been made for Incomes and great Fines, and yet after the Lessors did suffer Recoveries, if at this day a Lease be made, and that without Fine or Income, yet such a Lessee shall be received to falsifie the recovery had against his Lessor notwithstanding: The Preamble of that Statute seems to remedy no Lessees, but such as made Fines and were made before that Statute, but the said words were not put in the body or enacted part of the Statute: and so it is in our Statute; the words (Heretofore won) be only put in the pre­amble and not in the material part of the Law, and so the Exposition is not to be tyed hereto; so notwithstanding this exception, these grounds though gained since the Statute, are within the relief thereof.

The second cause wherefore these new grounds should not be within this Law, is, Because these Lands be increa­sed beyond the bounds since the making of these Laws, and so it may be alleaged that they cannot extend to the new in­largement: for Mr. Plow. in his Com. fol. 129. saith, That Laws Plow. Com. and Priviledges tied to a certain Place or Precinct, cannot be fol. 129. extended or inlarged beyond the ancient Bounds, although the Predinct be inlarged. As the Case in 7 H. 6. fol. 32. 7 H 6. fol. 32. where in a Nativo habendo, a Villain had remained a yeer and a day in London, which was ancient Demesn, and there was a priviledge, that every Villain and Bondslave which had re­mained [Page 37] a day and a year in London, the Lord might not seize him; and the Villain pleaded that he had remained a year and a day there, and so took himself to be within that priviledge; but because since the said liberty granted the bounds of London were much increased, therefore it was there held, that the said liberty and priviledge did not extend to the new inlargement. And the Case is also put in the said Coment. that the Bishop of Durham had divers liberties in his Lands lying between the two Rivers of Tyne and Tese, and after he purchased other Lands there, the said liberties did not extend to the said new purchased Lands; and the like Law is if one have a Warren in his Mannor and Lands in Dale, after he purchase more grounds there, his Warren doth not extend unto them. And so where one had by Charter the Lands of persons forfeited for Treason, he could not have by the said ancient Charter, Lands for­feited for Treason by Tenants in Tail, because the forfeiture of them was given by a late Statute since the Charter, but his non obstantibus: I am of Opinion, That this Statute I now treat on extendeth to these new gained grounds: and I take a difference between a special Law of Priviledges, and Liberties which is stint­ed or bounded either by Statute, Charter or Custom, the same can by no construction be made to exceed the bounds; but the general Law of this Kingdom, as this Law of ours is, the extents thereof be as large as the whole Realm is, and they be not tied to stinted limits, as particular private Charters and Customs be; and so I conclude, That in point of extent, this Statute of 23 H. 8. is tied to no other bounds then to the Kingdom of England.

Diversity between grounds gained and grounds left.

THe third matter is that which I have grounded the con­clusion of my Case upon, and that is, Whether the grounds in my Case newly left by the sea to the shore, and the shore be such grounds as be within this Commission? [Page 38] And in my opinion they be not: And therefore to maintain my opinion herein, I take a difference between grounds left by the Sea, and grounds gained from the sea; for grounds left are of no value, and bring forth no fruit or encrease at all, but the uppermost part thereof are sand, which these Laws take no hold of; for the Commission extends only to grounds won and made profitable for the Commonwealth of this Realm, which Terra relicta yield not, for no pro­fit at all thereof ariseth, till the sand be inned and gained; and these Laws made the Commissioners Savers and not Gainers, and therefore did extend the Commission but to the utttermost banks and walls, and left the shore as grounds possessed by the sea, and so be put pro in defenso by this Law; and therefore I do make my conclusion as fol­loweth:

1 First, That the Seas, Creeks and Bays are all within this Statute in point of extent; but that they and the shores, and the relinquish'd grounds, be all of them out of this Com­mission of Sewers to be dealt withal thereby.

2 Secondly, That Ports and Havens are totally the waters, as well as the walls and banks thereof, within the Com­mission of Sewers.

3 Thirdly, The shore and grounds left by the sea when they are put as in Gainage, are then and not before within the power of the Commission of Sewers.

4 Fourthly, although the grounds left by the sea are not in point of defence within the Commission of Sewers, yet a wall or bank may be thereon raised for the aid and succor of the countrey, but not for any cause where the defence extends but to themselves. And although the grounds that have been gained from the sea in the county of Lincoln and elswhere in this Realm, yet that was done at the labor of private men, and not by the Commission of Sewers, which aims at the general good, and not at private Com­modities.

So that Super totam materiam, I am of opinion with the conclusion of my Case, that is, That the said new Island is [Page 39] the Kings, the grounds left to the shore pertains to C. the subject; and that because they are all of them within the Realm of England, they are therefore within the extent of this Statute: But in regard they are grounds left only, and not gained nor made profitable for the Commonwealth of this Realm, they are not therefore within this Commission. And so I conclude my Argument as I did my Case: in which, I hope, I have neither injured the Subject in his private Inheritance, nor wronged Prerogative in any point.

FOrasmuch as the first day I went perambu­lation about the Sea, and of all which be­long to her Empire and Dominion; wherein I did survey her bounds, her qualities and her government: Now I do intend to go a progress through the Land, and to take a view of the fair goodly Rivers which make their voyage to the Sea, for these my Statute hath taken into her protection. And this second day I purpose to call a Court of Oyer and Terminer: And I do intend, with your gentle patience, to examine all the particulars there arising. And because the said Statute of 23 H. 8. must be my chief guide to direct my fairest passage through these uncouth ways, I will pray aid thereon; and I will now proceed to declare what business on Land this Law hath undertaken to defend, and what offences it purposeth to reform: And accordingly the said Law doth distribute it self into these particular Branches:

I.First, Into matters of defence this Statute maintain­eth, are these follow­ing, viz.

• 1. Walls.
• 2. Banks.
• 3. Ditches.
• 4. Gutters.
• 5. Sewers.
• 6. Goats.
• 7. Calceys.
• 8. Bridges.

2 [Page 42]Secondly, Into matters of Offence which this Statute term­eth Lets, Impediments and Annoyances which are to be put down or reformed, as cause shall require;

• 1. Streams.
• 2. Mills.
• 3. Ponds.
• 4. Fishgarths.
• 5. Mildams.
• 6. Locks.
• 7. Hebbingwers
• 8. Hecks.
• 9. Floodgates.
• 10. Other like Lets and Impe­diments.

And to the end I might fully examine this part of the Statute which produceth these matters, I have framed a Case, which doth give occasion in this days exercise to di­spute of all them.

The Case for the second Lecture.

A. Leaseth his Mannor in the county of Lincoln, in which Second Case. be Copyholds, to B. a yonger Son for his life, upon condition to have it for the life of C. upon condition to have it to him and the heirs of the body of his Father. A Co­pyhold is forfeit, the first Condition is performed, the Com­missioners of Sewers in that county upon view survey, and by their discretion decree a new bank where none was be­fore to resist the Sea, and a new River to be cut to drain the superfluous waters in S. and an old Sewer in D. to be repaired; and by inquisition assesses B. the Lessee for the Mannor, the Copyholder for the Copyhold Land, and the Town of S. and also the Parson there for his Tythes, be­cause they lie all in the Level; the second condition is per­formed, B. enters in the Copyhold.

My conclusion is, That this new Bank, new River, and old Sewer be well decreed, but the said sesse is void in toto & in qualibet parte.

Points at the Common Law.

The Points of this Case are three at the Common Law, and three upon this Statute; but all of them are so woven within another, that every one of them go hand in hand from the beginning to the end of the Case.

1 Imprimis, Whether the Duplicate Condition be good, or not?

2 Secondly, What Estate B. the yonger Son hath by the first Condition, and what Estate he hath got by the second?

3 Thirdly, A Copyhold becomes forfeit to the Lord, and before the Lord take advantage of it his Estate is changed, Whether by the change of his Estate the benefit of the for­feiture be lost, or not?

Argumentum Lectoris.

Seeing it hath been the ancient order for the Reader of this place to maintain the Conclusions of his Case, I shall therefore endeavor my self to perform that order which Custom hath imposed upon me; and accordingly as I have concluded, so I take the Law to be.

And touching the first Point, it hath been challenged and drawn in question upon some Opinion delivered in the Re­ctor [Page 44] of Cheddingtons Case in Sir Edward Cooks first Report; where it said, That one contingent cannot depend upon another: Sir Ed. Cooks 1 Report. But more strictly it is called to an accompt in the Lord Staf­fords Case in Sir Edward Cooks eighth Report; for there it is Cook, Rep. 8. held, That one possibility cannot depend upon another possibility; and this Case is there put, That if A. let Lands to B. for years, upon condition to have it for life, and upon condition to have Fee, that the Fee simple can never increase by the second condition; but as he saith in another Case, Amicus Plato Amicus Socrates sed magis amica veritas, his rule taken in the first Case is very general, and the Lord Staffords Case admits distinctions, which in my Argument I shall apply my self unto.

And some differences I shall take in this Point in que­stion; therefore I shall thus distinguish, That if upon per­formance of the first Condition, the Original Estate be de­termined upon which both the first and second Condition were built and grounded, the second Condition and in­crease thereupon is utterly void; but if the first Estate be not destroyed nor confounded upon the first Condition per­formed, the second Condition and Estate thereof which shall be gotten thereby, may then well grow upon the old stock. To explain this by Example, If A. give Land to B. in Fee simple, upon condition to have the Land in Tail, upon condition to have for Life; here because the first E­state and Livery by the first Condition is not destroyed, therefore the second Condition should well stand in force. So I do make a Lease to A. for twenty years, upon con­dition to have the Land for forty years, upon condition to have Fee; this first Condition and second Condition may have both their full operations: for by the performance of the first Condition, the lease of twenty years is not destroy­ed, but stands on foot; and therefore the original Estate remaining unconfounded, the Fee simple may well increase by the performance of the second Condition: But if a Lease be made to A. for his life, upon condition to have in Tail, upon condition to have Fee; the second Condition [Page 45] here is utterly void, because by the performance of the first Condition, A. had an Estate in Tail, which drowned and destroyed his Estate for life; and so because every decreasing and increasing Estate is to depend upon the first Estate which receives the Livery, which is the life of all, there­fore the second Estate can never accrew in this case: and this is true reason, as I take it, of the said Case put in the Lord Staffords Case; for there the Case for years was destroyed by the Lease for life, which came by the first Lord Staffords Case. Condition, and so the Fee simple there could never accrew by the second Condition. And in answer to the said general ground taken in the Rector of Cheddingtons Case, That one Rector de Cheddingtons Case. contingent or possibility cannot depend upon another; under fa­vor I take it, not that I am bound thereby, neither was it the meaning of Sir Edward Cook, as I take it, to extend the same so largely as they are there put, because I finde many Au­thorities of great account which are against the said general position.

And first in the 38 H. 8. Br. Feoffments, pl. 71. a Feoff­ment 38 H. S. was made to the use of A. and his heirs, until I. S. paid him Ten pounds, and then to I. S. and his heirs, and so to the third person; and what is this but one condition, con­tingent and possibility to depend upon another, for these contingents there were held good, and were built upon a sure foundation.

And so in Digs Case in Sir Edward Cooks Reports, where a Feoffment is made to the use of A. and his heirs, with Digs Case. power of Revocation, and after of new Limitation of E­states; these be also contingents and possibilities depend­ing upon others, and many such double contingents may be put.

The Case of Sir Edward Cook put in the end of the Re­ctor of Cheddingtons Case out of 12 Lib. Ass. pl. 5. in my 12 lib. Assize opinion doth not disalow the second Condition; for there the Case is, That A. Leased to B. upon condition, That if A. or his heirs pay to B. Ten pounds within a certain day, that they might re-enter; and if A. nor his heirs should not pay the Ten [Page 46] pounds within the time; Then if B. paid to A. Ten pounds at another day, that he should have Fee: Both A. and B. failed in payment, and A. entred, and being put out, brought an Assize, and nihil Caepit per breve; this doth not prove that one con­dition cannot depend upon another, neither can I see well what Exposition to make of so uncertain a Case, so that I take this Case to be no evidence against mine.

But in the 14 H. 8. fol. 15. there is a Case which in my 14 H. 8. fol. 15. opinion makes more against my double condition then any other, which is put by Brudnel Chief Justice; that is, If A. be bound in an Obligation to B. upon condition to in­feoff I. S. before Easter ensuing, then the Obligation to be void; and if he do not infeoff him, then to pay Ten pounds at Pentecost, then the Obligation to be void: The Feoff­ment is not made before Easter, therefore Brudnel held the Obligation was forfeit, and that the second Condition was not good: But there is a (Quaere) set upon that Case, and so it may well be, for I see it commonly done, that if a de­fesans be made of a Statute which is broken, and so the Sta­tute becomes forfeit, yet a new defesans may defeat it; and so in my opinion may the second Condition in this Case avoid the Obligation, if the first conclusion had not been in the Case.

I shall adde this Case also as a conceit; that is, A. infeoffs B. upon condition, if A. go to Lincoln he shall have the A Conceit. Lands to him and the heirs of his body, and if he go to Boston he shall have it for Ten years; and he goes first to Boston.

I do here hold these Conditions being put promiscuously, without distinction of the times of the Conditions which shall be first performed, and which the second, that the Fee is decreased into an Estate for years, and can never increase into an Estate in tail by performing of the second Condi­tion, because the Livery out of which it should grow was quite destroyed by the first decreaser. So that my intent S [...]ond Point. appears, that one Condition may depend upon another upon the said distinction; but whether by the performance [Page 47] of the first Condition in my Case there will an Estate come to B. or not, I meant it for a question: for B. had before an Estate for his own life; then is it not possible that his Estate can hereby be increased by having the Land also for the life of C. if it be admitted argumenti gratia, that B. shall or may have both these Estates stand in him both at one time: for if C. dyed first, then is B. never like to have any benefit thereof: And if B. himself should dye before C. then also were it impossible for B. to make any use of this Estate for the life of C. unless it were in him to grant away to another, as in the Case of the Office in the 1 H. 7. where an Office 1 H. 7. 29. Crofts Case. is granted to the King, the King could not have the Office himself; and so in that point for the King to take by the grant, he could not, yet by that book it was in him to grant over to another which might have it. And like to this is the Case where I. S. is Parson of the Church of Dale, and the Patron grants the next avoidance, this grant can he himself take no benefit by, unless he resign, yet if he dye it shall come to his Executors.

But I take the Law to be in my Case, that B. shall not by the first Condition have both the Estates in him at once, that is, for his own life, and after for the life of C. but that the Estate of B. by the first Condition, shall be decreased or changed from his own life into the life of C. and shall be melted and newly molded by this Condition; for an Estate may as well decrease as increase by a Condition: and yet the Lord Staffords principal Case was, That Queen Eliza­beth did grant the Mannor to Tindal and the heirs of his body, upon condition upon payment of Twenty shillings to her by Tin­dal, that he should have the Reversion to him and his heirs; and there it is holden for Law, that by the payment of Twenty shillings, the Reversion in Fee simple shall increase to Tindal, and shall not alter or drown the Estate Tail, which is an excellent Case, but alter the putting of that Case, and then it may alter the Law also; that is, I give Land to I. S. and the heirs of his body, upon con­dition A Conceit. if he pay me Twenty shillings, that he shall have [Page 48] the said Lands to him and his heirs: In my conceit by the performance of this condition, the Estate Tail, is by increase changed into a Fee simple; in which, note the difference between Tindals Case and this, where upon payment of 20. s. the reversion is granted to him and his heirs: and where the words be, That upon payment of Twen­ty shillings he shal have the Lands to him and his heirs: In the first Case, the Fee-simple accrewing shall not alter the Estate Tail, but in the second Case, by the Fee increasing, the E­state Tail is determined and changed into a Fee simple, quod quaere.

Admitting the first condition did increase the Estate of B. from his own life to the life of C. and the second condition is performed, by the which another Estate will accrew to B. as I take it will, because an Estate decreased, is parcel of the first Estate; then what Estate B. hath got by this new Limitation, is the question: And in my Opinion, he hath at the most but gotten an Estate again for his own life, and that the Limitation to the heirs of the body of his father is utterly void, be his father dead or alive; for if his father be dead, his elder brother is the heir of his body, within these words of Limitation, who cannot take the Lands by descent Littleton estate Tail. from B. his Brother, or from his Father; but as the Case is put in Littletons Title Tail, and in the 4 and 5 Ma. in Dier Ere­swoulds 4 & 5 Ma. Dier. Case, where Lands were given to the eldest son, and the heirs of the body of his father; this is a good Estate in Tail, being made to the eldest son, because he is capable to take the Lands in both degrees. And in 2 E. 3. the Case 2 E. 3. is famous, and is known by the name of Roberges Case, where Lands were given to her and to the heirs of the hus­band of her body begotten; and it was there held, That if her husband were then dead, and left any heir which he had by her, they might take joyntly with her; for that it was not pos­sible to take by descent from the said Roberges, because he which takes it must not be heir to her, but to the hus­band, who never held any Estate therein: And so to be short, I am of Opinion, That no estate of inheritance [Page 49] be gained by B. by these words, The heirs of the body of his father.

The Case upon the third Point is this, a Mannor is gran­ted Third Point. to one for his life, upon condition to have it for the life of C. then a Copyhold, is forfeit, and before the Lord seize, his Estate is altered or changed; if now he can take advan­tage of this forfeiture or not, wherein the altering of the Estate of one to another is of like force, as where it alters in the parties self, against which it may be said, That if Te­nant for life make waste, and then he in the reversion grant over the reversion, the Grantee shall not now punish this waste; and so Mr. Perkins, fol. 20. If a Tenant alien in Mortmain, and Perkins, so. 20. then the Lord grant away his Signiory, the Grantee shall not enter for this Mortmain: so by Fitz. in his Nat. bre. in his admeasure­ment Fitz. Har. Nat. brc. of Dower, If a Garden assign to a woman more dower then she ought to have, and then grant his Gardenship over, the Grantee cannot have an admeasurement of Dower against her: and so Binghams Case in Sir Edward Cook 2. Rep. where there was Tenant for life, remainder in Fee of a Tenancy holden Binghams Case, Cook 2 Rep. by Knights service, and he in remainder died, his heirs with­in age, and then the Lord granted away his Signiory, and then Tenant for life dyed, by which the said heir was to have been in ward; yet because the Signiory was granted away after the inception of the Wardship, before it was per­fectly due, it was there held, that neither the grant nor the grantee should have the same: So Lessee for life without im­peachment Bokenhams Case in Dicr. of wast, remainder for his own life, the priviledge is lost; but yet notwithstanding, I do hold that in this Case B. after he hath by the performance of the Condition alter­ed his Estate which he had when the forfeiture was commit­ted; yet shall he afterward take advantage thereof well enough: As if there be Tenant for life, the Remainder for life to I. S. and the first Tenant for life commit waste or for­feiture, he in the reversion cannot punish this during the life of him in the remainder for life, but after his death he may: also if one make a Lease for years, upon Condition to be void, and the Lessor grant away his reversion, the [Page 50] Grantee may enter for breach of this Condition by 11 H. 7. 17. and yet here the Estate in reversion is altered from 11 H. 7. 17. one to another; and I doubt not, but if a Tenant for life be the remainder in Fee to another of a Mannor, and a Copyhold is forfeit, and then Tenant for life dyed, that he in re­mainder may enter into this Copyhold; and yet this E­state is altered into a possession from a remainder; and in the Case, although the Estate in B. be altered, yet it is by de­creaser, and so thereby it is parcel of the old Estate he had before: and therefore it is like to a Case where the husband and wife were Tenants in special Tail, and they recove­red by Assize, and then the husband dyed, and after his death without issue, the wives Estate being altered from an Estate Tail, into an Estate of possibility of issue extinct, was again put out and disseized, and she brought a Writ of Re­disseisin, 2 H. 4. 17. & 26 H. 6. title Ayd pl. 77. which will not lie but on the first Estate, and against the first parties, and yet it was maintained, because it was parcel of her former Estate: And so in this Case, although the Estate of B. was altered from his own life into the life of C. yet I am of Opinion, That he might take advan­tage of this forfeiture, because the Customary Estate is ut­terly void thereby.

Points upon the Statute.

I am determined before I enter into the discourse of new defences in my Case, to deliver my Opinion touching the Walls, Banks and other ancient defences, which have had their being time out of memory, and in truth be the very materials and memorials of Antiquity: And because Banks and Walls be the first named in the Commission, they shall therefore have the first place in my argument, being the most ancient and approved defences, as well against the rage of the Seas, as against the violence of fresh waters, that either Art or Nature have produced.

Bank.

THe Bank of the sea is the utmost border of dry land, and is of the same materials with the grounds wherein and whereon it standeth; it is sometimes natural, and in some places artificial: Natural, as Mountains raised higher then other grounds adjoyning as it pleased the Creator, when the first huge Chaos was separated, divided and distributed; Arti­ficial, when it is cast by mans hand. Justinian the Emperor treating of these in his Institutes, and his title de rerum divisione describeth them in this maner, Riparum usus est publicus illar' verò domin' ad eos pertinet qui proximior praediis domini sunt, ita (que) naves ad eas appellere funes arboribus ibi natis Religare onus aliquod, in his Reponere cuilibet liberum est, by which autho­rity it appeareth, that the ownership and property of the sea bank and banks of great Rivers, be to them whose grounds are next thereto adjoyning, and the Trees, Grass and other things thereon growing, belong to the owner of the soil, but the use of the banks is common to all the Kings liege people, as to tie the ships and boats to the Trees, and to tow them to and fro, and to lade and unlade their Mer­chandizes thereon, and for fishers to dry their nets on. And as the owner of the soil and proprietor of the grounds, cannot justifie the digging or casting of them down, whereby the people shall be hindred of their necessary use thereof, no more can the people which have but necessarium usum, fell up the Trees, or mow the grass thereon growing, neither ought they to dig ballast there, but every one, as well owner as user, Sic uti suo ut alienum non laedat. I cannot more apt­ly compare a Bank of the Sea, or of a navigable River, then to a Highway, for that the property thereof is to him whose ground is next adjoyning, and the use thereof is common to all men, and the power thereof the King hath by His Laws, Proprietas Domino, usus populo, potestas Regi: wherein for more clear Illustration of this matter, I put this Case, Proprietas Domo usus po­pulo. That I. S. doth cut the Sea bank, or the bank of a great Potestas Regi. [Page 52] River; and I. B. which hath occasion to pass thereby, falleth unawares into the cut, and is hurt in body or goods, the party which cutteth this Bank incureth these mulcts: For first, the owner of the soil may have his Action of Trespass, quare solum fodit, and he which fell therein may have his Action upon the Case against the digger of that cut, for to 8 E 4 9. 27 H. 8. 27. 2 E. 4. 9. recover his damage for his special hurt, and the offendor may also be indicted at the Kings suit for the general wrong done to the Kings people: And the like Law is of high­way.

A Wall doth differ in point of ownershhip from a Bank, first, in respect of the materials the same is made on, for a Bank is made Ex solo & fundo qua ex suis propriis naturis sunt cadem cum terra super qua edificatur, but so is not a Wall, for it is an artificial edifice, not of the materials arising of the place where it standeth, but which be brought thither and built there, ad propria onera & costagia partis; so that the ownership & property of a Wall doth appertain to him who is bound to repair the same, though his ground lye not next thereto; but of a Bank the property and ownership is his whose grounds adjoyn thereto: And this shall, I hope, suffice to have said of Banks and Walls, the two first defences nominated in the Commission of Sewers.

The letter of this Statute and Commission, seem to ex­tend only to Banks, Walls, and other defences standing and being by the coasts of the sea and Marish grounds there­to adjoyning; but whether the Banks and Walls of fresh Ri­vers which have their courses to the sea be within this statute or not, hath heretofore bred some question; but for my own part, I am cleer of opinion that they be within the pro­vision of these Laws, for there be two mischiefs recited in the Statute; the first is, for not maintaining the Walls and Banks against the sea, by reason whereof great hurt hath happened thereby, by the overflowing thereof: and the other, by the inundation of fresh water-courses through Landfloods, which have done some damage to the grounds next adjoyning; and these Laws apply a remedy to both [Page 53] these grievances, that is, by repairing the Walls and Banks next the sea, and by maintaining of the defences of the fresh Inland Rivers, to cause them keep their waters within their Channels. And I take it there be words in the Statute that will bear this construction, viz. That by the rage of the sea, flowing and reflowing, and by means of the Trenches of fresh waters descending, and having their courses to the sea, by divers ways be so dirupt, lacerate and broken, &c. And also in the preamble of the Statute the words there be, that by reason of the outragious flowing sur­ges & course of the sea in & upon Marsh grounds, and other low places heretofore through politique wisdom won and made profitable for the great Common-wealth of this Realm, as also by occasion of Lands, waters, and other outragious springs, in and upon Meadows, Pastures and low grounds adjoyning to Rivers, Streams, and Currents, wherein the waters are to have their courses. And what keeps the fresh waters within this Channel but good and serviceable Walls and Banks, and what things doth this Law intend to be dirupt, lacerate and broken, but the Walls, Banks and other defences which pent up their waters; and these words extend more properly to the Walls and Banks of fresh Inland Rivers then to sea coasts. And I do finde some ancient Authority in the point out of the Charter of Romney Marsh, pag. where the words be, Ad di­striction' Romney Marsh. faciend' ad reparand' Wallia & watergaugia ejusdem marisei contra maris impetum inundationem aliarum aquar' dul­cium; which last words can have no other construction or interpretation, but to extend the same to the Banks and and Walls of Navigable, and other fresh Rivers and water­gauges of fresh streams. And the Statute of 1 H. 4. Cap. 12. makes the scruple cleer wherein the words be, that the com­mon 1 H. 4. cap. 12. passage of ships and boats in great Rivers of England, were oftentimes disturbed by leaving of weres, &c. and provided a remedy therein; so hereby it is manifest that fresh Navigable streams are within these Laws.

Private Walls and Banks.

BUt all Banks and Walls wherein waters be pent are not within the provision of these Laws, but only such as belong to common and publique Rivers and ditches, Sew­ers and streams: for Walls and Banks made and erected as fences to mens private grounds, and there set or made to ditches, gutters and streams, for the drayning and watering of mens private grounds are not within these Laws, for these Laws take cognisance and notice of none but of such as tend to the good service of the Common-wealth, and there­fore whereas in the Ports of Holland in the county of Lin­coln, and in other parts of this Realm, divers private per­sons have for inning and safety of their Marshes and Marsh grounds, cast great banks for those private uses: these banks are not within the protection and defence of these Laws to be maintained; but I am of opinion, That they may be extirped if they be letting and a hinderance to the common good of the countrey where they be erected.

Forasmuch as I am now in hand with Walls and Banks, the defences to Rivers, Sewers, Ditches and Gutters, I therefore take it, that it will hold good correspondency here in this place, to treat of them and of their dependencies. A River therefore is a running Stream, pent in on either side with Walls and Banks, and beareth that name as well where the waters flow and reflow, as where the waters have their current one way, as is expressed in the Case of the Pischary of the Banne in Ireland: In the Statute of 4 H. 7. Cap. 15. 4 H. 7. 23 H. 8 [...]. l. Ass. pl. 11 Thames is termed a River: In 34 Lib. Ass. pl. 11. and in Plow. Com. fol. 129. Tyne and Tese be both named Rivers: and in 19 H. 7. Cap. 18. Severn is said to be a River; Trent, Humber, Boston Haven, Lyn Haven, and Tyber, Orontes, Eu­phrates 19 H 7. and Anfidies, near which Hanibal the Carthaginean General struck the Battel of Canna, be all of them in Hi­stories of great authority named Rivers.

Rennatus Choppinus in his Treatise de Dominio Franciae, Choppinus. [Page 55] Lib. 1. Tit. 16. de fluminibus, saith, That Fluminum duo sunt genera Regalia quaedam, alia Bannalia sive privata, Regalia dicuntur ex quibus principes Jure patrimoniali vectigall capit in quibus modum & tempus piscationis constituit: and Sir John Davies in his Irish Reports in the said Case of Banne, saith, That so far as the Sea doth flow and reflow, it is a Royal Stream, and the fishings therein belong to the Crown; but where the same doth not flow and reflow, Tertennants of both sides, de Com­muni Jure, have the Pischary; yet a Subject may have the free fishing in the Royal streams by custom and prescription: And in the River of Thames tam aqua quam solum pertinuit Dom' Re­gi, and by Charter they were conveyed to the Lord Major of London, and Citizens of the same. In Lib. Intrac. fol. 666. In veteri lib. Int. fol. 666. there is a president put in this maner, That an Action of Trespass was brought Quare le defend' piscat'est in sua separali pischaria & pisces inde, videlicet, duos Salmones caepit; the Defendant justified, and said, That he was seized of the Mannor of Dale, which doth extend it self us (que) ad medium aquae de V. quae est eadem pischaria in qua supponitur pischatio­nem predict', fieri exaustriali parte, and that the Plaintiff eodem tempore quo, fuit sesitus de manerio de Sale quod se ex­tendit us (que) ad medium fili aquae predic' ex boreali parte ejusdem aquae & quod ipse defendens & omnes quorum statum ipse ha­bet in predic' manerio de Dale, à tempore quo non extat memoria hominum in contrario seisit' fuerant de predic' australi parte de predic' aquae ut de separali pischaria sua: in which pleading it appears, That the Lords on either side the River, owe the River by several moyeties, and the several moyeties and the several parts of the fishing as incident thereto.

It may also here, as I take it, be moved for an apt que­stion, In whom the property of running waters was; for Nat. br. fo. 123 P. C. 164. in Natura Brevium, fol. 123. there is a quod permitt' ha­bere liberam pischariam in aquae ipsius L. whereby it appears, That the Plaintiff had property in those waters; and in Plo. Com. 154. one granted aquam suam in L. and the Pischary passed thereby, and so did the soil also in my opinion: for in 12 H. 7. fol. 4. a precipe quod reddat is brought de una 12 H. 7. fol. 4. [Page 56] acra terrae Cu' aqua Cooperta. In my conceit the Civil Law makes prettier and neater distinctions of these then our Common Law doth; for there it is said, That naturali ratione quaedam sunt Communia ut Aer. Aqua profluens, mare & littora maris: I concur in opinion with them, that the ayre is common to all; and I hold my former definitions touching the properties of the sea and the sea shores: But that there should be a property fixed in running waters, I cannot be drawn to that opinion; for the Civil Law saith further, quod aqua profluens non manet in certo loco sed procul fuit extra ditione in Ejus cujus flumen est ut ad mare tandem perveniat; for in my opinion it should be strange that the Law of property should be fixed upon such uncertainties, as to be altered in­to Meam, Tuam, Suam, before these words can be spoken, and to be changed in every twinckling of an eye, and to be more uncertain in the proprietor, then a Camelion of his Colours. Our Common Law, which of all others is the most certain, did not set his property upon a Dear in Parks, Conneys or Hares in Warrens, nor on Fishes in running Streams; all which be more permanent then running waters be: And therefore I am of opinion, that taking this word Aqua for the bare running water, there can be no property therein, but as the same is incident to the soil, taking them two for one, it is drawn with the property thereof: and this difference is apparant by 12 H. 7. aforesaid; And Mr. Lyu­wood puts a difference inter Fluvium & flumen; for saith he, Est perennis decursus aquar' sed flumen est propria ipsa aqua.

Let it not be held Questionable, whether Rivers of both kindes be within these Laws or not, though they be not put among the defences which this Statute speaketh of; for that expresly those things which are termed Lets and Impedi­ments, are commanded by this Statute to be removed out of the Rivers and Streams for hindring the waters; and Navi­gation being so carefully provided for cannot be supported, unless Rivers Navigable be maintained: and these Rivers are like the veins of a mans body, by means whereof the in­crease of the grounds near thereunto adjoyning are abun­dantly [Page 57] multiplyed, and the waters which trouble the Level are conveyed away thereby: so that I am clear of Opinion, that Rivers and their Channels, Waters and Banks, are all of them fully within the defence of these Laws, howso­ever some which would have no new Rivers cast by the power of these Laws, would extend the words but to the re­pairs, and not to the River it self.

Sewer.

A Sewer, whereupon these Laws took their name, hath been no great stranger to our Common Laws of this Realm, being perfectly described, though not precisely defi­ned in our Law; some mincing the word, compound it of two words, Sea and were, saying, that nomina sunt consonantia re­bus; and there is some coherence between the name and the nature of the thing. Authorities in Law will best decide the question, and therefore 20 H. 6. fol. 1. an action of waste 20 H. 6. fol. 1. is brought there against Tenant by the courtesie, for suffer­ing a Sewer in part of the grounds to be unrepaired, by rea­son whereof his grounds in L. which the Defendent held by the courtesie of England, were sorrounded; so that by this book it is made manifest, that the Sewer is a fresh water trench compassed in on both sides with a bank, and is a small current or little River. And in 12 H. 4. fol. 7. an Action of the Case was brought for stopping of a Sewer in 12 H. 4. fol. 7. Dale, by reason whereof the waters did overflow the banks, and drown the Plantiffs Meadow grounds: So these two Cases sufficiently declare what a Sewer is; and Hollingshead in his Chronicle termeth the Fleet Dike in London a Sewer; and I am of opinion, That it is a diminutive of a River, and by express words Sewers be within these Laws & sic est in 39 H. 6. 31.

Gutter.

A Gutter is of a less size, and of a narrower passage and current then a Sewer is; and as I take it, a Gutter is the diminutive of a Sewer: and the difference between them is, That a Sewer is a common publike stream, and a Gutter is a straight private running water; and the use of a Sewer is common, and of a Gutter peculiar, and by express words also a Gutter is within these Laws & ceo est sic mention' 39 H. 6. 31.

Ditches.

A Ditch Fossa is also described in our Books, as in 12 H. 4. 7. where an Action upon the Case was brought against the Mr. of S. Marks in Bristol, for that he was bound by the tenure of his Land to cleanse a Ditch there; he did neglect to do the same, by means whereof the waters therein were stop­ped, and did thereby surround the Plaintiffs grounds; so that hereby it is apparent, That a Ditch is a kinde of current of waters in infimo gradu. And Mr. Cambden in Sua Lin­colniensi Historia doth there describe Fosdyke to be Fossa incibis Cambden. quam Henricus Prinus per septem miliaria à Withania in Trentum perduxit ut Lincolniensibus ad subvehenda necessaria usui esset; this Ditch is at this day a current and passage for Boats of small burthen in Winter, but in Summer none at all; though of late great sums of money hath been expended thereupon Sed tamen ad huc nihil inde boni venit: at the best it is the worst in all that countrey, and is of so slow a current ut non videtur currere omnino: It serves in many places for a fence to divide Lordships, and is a great trough to swallow up waters thereabouts, which otherwise would lie upon the Level, and of it I say no more, but Spero meliora & expecto.

Other famous Ditches there be, as that in the North-East part of the city of York, which is in a maner a standing Water: And there is an old forlorn Dike on the Fen [Page 59] sides in the county of Lincoln, called Caredike, more ancient then profitable, for it doth, as many other of those unusual Ditches do, run cross to the ordinary currents of waters in those parts: For where the Seas (for example) stand East from the main Land, and so the ordinary currents run all from West to East directly towards the Sea, this runs North and South, obvious and cross to the natural current of the waters, which is the true cause wherefore their currents be so slow, small or none at all. There is another of them on Newmarket Heath quae admiranda Fossa vocat' the Devils Dike: and in Wiltshire there is a Ditch famous, called Wansdike, or Mercurii Fossa, which serves for a division of countreys, and so be Fossa Limitania, and are either altogether dry Dikes, and contain commonly no more waters then those that fall into them: None of these Ditches be within these Laws, but such of them which have a kinde of current, and which in some sort partake with the Rivers.

Pools.

A Pool is a meer standing water, without any current at all, and hath seldom or never any issue to convey away the waters; but a Ditch hath no constant standing, nor any apparent current: A Pool is properly the Inheritance of some private, but a Fosse or Ditch is in use common. Pools be not within this Law for two causes; the one, Be­cause both in property and use they be private and peculiar: The other is, Because these Laws seem to extend to grounds casually, and not continually drowned & ad eaquae frequentius accidunt Jura ad aptantur; yet all Pools be not excluded from the helps of these Laws: for such as adjoyn to great Rivers, and lie upon the sides thereof without division, they are in a maner part of the Rivers; and of their kinde is the two famous Pools called Brayford and Swanpool, both near unto the city of Lincoln.

Ponds.

A Pond is a standing Ditch cast by labor of mans hand in his private grounds for his private use, to serve his house and houshold with necessary waters; but a Pool is a low plat of ground by nature, and is not cast by mans hand. I finde a Pond within my Law I read on in expressis ter­minis, not as a thing defended thereby, but as a Let and Im­pediment: And had I not found him therein named, I should not by any Exposition have here brought it in a­mongst the water Instruments; for I much marvel what impediment a Pond can be at all, unless by casting of Tren­ches from the River to the same, it shall be a means to take thereinto some of the waters of the River, and may there­by hinder Navigation; but this is far fetcht.

Streams.

STreams be not any of these, for all these have their proper peculiar Banks, Bounds and Channels, and are put in amongst them; but a Stream is properly a current of waters running over the Level at random, and be not kept in with Banks or Walls, and so Linwood saith, that Flumen which is a Stream nihil aliud est quam ipsa aqua.

Conduits.

A Conduit or ought thereto belonging is not within these Laws in any sort, whether it pertain to a private per­son, or to a Town or Corporation.

Springs.

SPrings I finde within this Statute, but coupled with such a word, that they thereby seem to be excluded and exiled quite from claiming any priviledge of defence by these [Page 61] Laws; for the word (Outragious) being joyned therewith, doth signifie the meaning of these Laws to take them to be hurtful, and not helpful; but all this cometh of the word Out­ragious, which being but a quality annexed upon accident, may upon just occasion be taken away. And the word Springs of it self is both in appellation and operation, very beneficial for the Commonwealth: for I may justly term them the vital Spirits of many the great and Royal Rivers of this Kingdom, as of Thames, Trent, and such like: And therefore I am willing to let such of them as be not outra­gious and hurtful, to take up a place of defence within these Laws; for the Trent at the head is derived from Springs, as many other Rivers be: and I give both the essence and assistance to them, and so in my opinion they are worthy the protection of these Laws: and I doubt not but the waters issuing and gushing from the outragious Springs, may by the provident & discreet care of the Commissioners be so order­ed, as the same may be applyed & imployed to necessary uses.

So now I have run through, like a swift stream, the qualities of these Rivers, Gutters, Sewers and Ditches, and of all their dependancies, and wherein they are to have aid and assistance of these Laws of Sewers, being in truth the very materials of these Laws: yet for a little better explanation of their several natures and kindes, I shall therefore put these Cases;

1 First, If the Town of A. want water by the driness of the season for the use of their cattel, or for other houshould affairs, as for brewing, washing and such like; and in the Town of B. which doth adjoyn thereto, there is plenty of waters, more perhaps then is necessary for use there, the Commissioners of Sewers have no power by any of these Laws, for any of the said purposes, to make any order or decree to relieve the Town of A. with waters from B. for this Statute makes but two uses of Rivers, Sewers and Streams, the one for draining, the other for sailing; and being for neither of these purposes, the Commissioners have no power to deal therein.

[Page 62] 2 But if two towns do adjoyn, and in either of them there is a River Navigable, and by accident one of them is dried up, and the other aboundeth with waters, more perhaps then there is necessary use of; I am in the case of opinion, that the Commissioners of Sewers have power by the Com­mission to make a Law or Ordinance to relieve the River which wants waters, out of the abundance of waters which the other River hath, in help and supply of Navigation.

3 But put the case that I. S. keeps Boats for his own necessary uses and occasions, and for no other purpose, the Commissioners have no warrant by their Commission to relieve I. S. with waters for this his own private use, for that their power is the Republike; Yet if I. S. hath used with his Boats to carry and recarry for the common use of the people in general, then he is within the relief of these Laws.

4 The new Stream and cut which was now of late made and cast by Mr. Middleton from Ware to London, could not have been done by the power of these Laws, because it was not made for the draining or sailing, but for houshold affairs, and therefore special Statutes were enacted to begin, continue and perfect that work in 3, 4 Jac. Regis; and after the stream was effected, these two Statutes brought the same within 3, 4 Jac. Reg. the power of these Laws.

And now seeing my Law hath brought me in my argu­ment and discourse among the things defended by these Laws; I shall now make a little digression from my Case, to treat of Bridges, and Calceys and Goats, the proper inventions and works of mens hands, and pertinent to this place to be treated of by the order of this Statute; and they be three material instruments which this Statute by name hath been careful to take order for.

Bridges.

BRidges are diversly taken in these Statutes, for some are thereby to be maintained, and other some are to be ex­tirped or reformed as lets and impediments; wherein I think it not amiss for instruction, to open some other leading Statutes which have provided for them.

The first Statute of Bridges is in Magna Charta, cap. 15. Magna Charta, cap. 15. nulla villa nec liber homo distringatur facere pontes nisi qui ab an­tiquo & de jure facere Consueverant tempore Henrici Aui' nostr' this word (facere) is to be construed in the sence of Reparareor Manutenere, for other construction it cannot have. And if this Statute should be in force, I take it that it would abate much the power of the Commissioners of Sewers; for it seemeth by the letter of it, that either no Bridges were to be repair­ed, but such as were made in the time of H. 2. and before; H. 2. neither should any be bound to repair them, but such as in His time had then used, and were bound to repair them: but this Statute is neither repealed, nor must be abridged, as not to extend to Bridges made sithence; and I take it, under favor, that it stands on surrounded grounds, which this Statute hath to do with; as also for such Bridges as the Sta­tute of 22 H. 8. cap. hath power over, which are Bridges 22 H. 8. standing on High ways, for both these Statutes do in my Opinion oppose the said Statute of Magna Charta: Howsoever Sir Edward Cook in his Cases of the Isle of Ely Case of the Isle of Ely. recites the said Statute as it were in force at this day; and if so, then the exposition must be made, as I take it, that all Bridges made and erected since are out of the inhibition of that Statute, or else that Statute is totally repealed: For otherwise all Bridges builded since should not be repaired, because no person or town should be obliged to do them: And then were the power of Commissioners of Sewers al­most altogether inhibited, touching Bridges, and their hands closed up for medling therewithal; but I take this Statute of Sewers in full strength to deal with such Bridges as come within the reach of it.

[Page 64] Bridges within the Law of Sewers, are such as lye on or near surrounded grounds, especially if they be not only placed there for free passage, but also for strength, to de­fend the violence of the waters, as many of this kinde be; viz. London Bridge, Rochester Bridge, the great Bridges at Lincoln, Boston Bridge, and the like; and such as lye on Inland and high countreys, over high ways, as Burton, Trent, Ware, Wainsford, Huntington and such like, be within the said Statute of 22 H. 8. and I make little doubt of it, but all the said last mentioned Bridges are also within the provision of the said Laws of Sewers, for they lie and are built over such Rivers as be all of them within these Laws.

The Statute of 22 H. 8. extends not to Bridges lying out 22 H. 8. of highways; but the Statute of Sewers doth extend to such also: And therefore if a Bridge stand on a common Sewer, Ditch or Gutter which hath his current to the Sea, or to some River, the Commissioners of Sewers hath power over such, either to repair the same, or to extirp it, as just cause and occasion shall require.

Also private Bridges are within these Laws, as if I. S. and his Ancestors, owners of such a House, have had and used to have a Bridge over a greater or less River to the Church, and to his Pasture Grounds, or to his Common, this Bridge, and all other of this kinde, are within this Statute of Sewers; viz. to be put down or reformed if they be impediments to the Common-wealth, and also to be maintained, if thereby the same be any material defence against the rage and violence of the waters, otherwise not, but for putting down such Bridges which have been by prescription. I hope the Commissio­ners of Sewers will be well advised therein, seeing time hath given great approbation of them, and therefore I shall handle this point more fully, when I come to treat of Lets and Impediments, where that part of this Statute comes most fit to be handled.

The Statute of 22 H. 8. extends to the repairing and a­mending [Page 65] of Bridges onely, but if it be fit to take an Arch away, or to adde a new Arch thereto, or to erect and build a new Bridge where none was before, this is most fit to be done by the Commissioners of Sewers, whose power may be extended thereto.

All Bridges set upon Rivers by persons without authority, may be pulled down by the Commissioners of Sewers, and the parties punished; for no man ought of his own autho­rity to be so bold with the common and high ways or streams, as to erect Bridges or other Engines thereon with­out lawful Warrant.

Bridges in highways, where there is no stream under, but onely some petty Land stream at rain and wet seasons, these be dry Bridges, and be not within this Statute of Sew­ers, but yet they be within the Statute of 22 H. 8. if they stand on highways: In 14 Jacobi Regis it was found by in­quisition taken at the city of Lincoln in the Guild-Hall there, 14 Jac. before Sir Thomas Grantham Knight, and my self, and other Commissioners of the Sewers, that the great Bridge at Brace­bridge near the city of Lincoln, and standing upon the River of Wytham thirty miles from the Sea, was fallen into great de­cay, whereby carts, carriages & men on horse-back could not pass over the same, as in times past had been used, in defect of Hen. Sapcots Esq who ought to repair a part thereof, by rea­son of his Mannor of Bracebridge; and of Bartholmew Gregge, who by reason of his house standing at the Bridge foot, called the Hermitage, on the North side of the River, ought to repair another part; and of the Corporation of Lincoln, who was to repair a part thereof; and of the country of Moreland, who used to repair another part: And the same was decreed accordingly. But Mr. Sapcot without cause finding himself grieved thereat, preferred his Bill into the Exchequer Chamber against Sir Thomas Grantham and others, to be relieved therein; and did alleage, That the same stood far from the sea, pretending thereby that the Commissioners of Sewers had no power to deal with the same: but at the hearing of the Cause in Anno 16. Jac. [Page 66] he was over-ruled in that and all other parts of this Suit.

A Calcey.

A Calcey or Calsway is a passage made by art of Earth, Gravel, Stones and such like, on or over some high or Common way leading through surrounded grounds for the safe passage of the Kings liege people, and these Calceys have always been expressed in the ancient Commissions of the Sewers in the Register, Fitz. nat. bre. and in the Statute of 6 H. 6. cap 5. but not any Calceys be in these Laws, but Register F. H. N. B. 6. H. 6. such as be over surrounded and low grounds, as that of Barston Bank, Southy Bank, and such like: but touching Calceys lying in Towns and Villages which be in the high uplandish Countries, this Law doth not in any sort extend unto them, but all Calceys leading over the said Bridges, and near unto them, are provided for by this Law; yet no private Calceys are to be dealt withal by the said Commissioners.

Goats.

GOats be usual Engines erected and built with Per­cullesses and doors of timber, stone or brick, invented first in Lower Germany, and after brought into England, and used here by imitation and experience, hath given so great approbation of them, as they are now, and that with good reason and cause inducing the same, accounted the most useful instruments for draining the waters out of the Land into the Sea: There is a twofold use made of them, the one when fresh waters flows and descends upon the low grounds where these Engines are always placed, and whereto all the channels where they stand have their cur­rents and drains directed, the same is let out by these into some creek of the Sea; and if at some great floods the Seas break into the Lands, the salt water usually have their re­turns [Page 67] through these back to the Sea: Many of these Goats which are placed on highways, serve also for Bridges. This Goat is no such imaginary Engine as the Mills be which some rare wise men of late have invented, but this Invention is warranted by experience, the other is rejected as altogether chargeable and illusory: Yet these Engines seems to me not to be very ancient here in this Kingdom, for that I do not finde them mentioned in any of the ancient Cōmissions granted, before this statute did express the same; and surely this Statute was so curious in the special repeti­tion of such defences in specie as it intended to defend and maintain, that I am of Opinion, it can scarce be drawn to extend to any other: And therefore I do agree with the Opinion of Sir Edward Cook in his Case of the Isle of Ely, that an artificial Mill, and such like new invented Engines, are not to be erected by the power of these Laws, but be­ing once erected and proved by experience to be beneficial to the publique State, they may be continued and maintain­ed by the authority of this Statute.

New defences.

HItherto I have proceeded onely in the handling and dis­coursing of the old and ancient defences which be help­ful both to Sea and Land: And therefore I am now de­sirous to enter into the argument of new defences, being a matter very fit and apt to be disputed on: And to give some warrant to my argument therein, I have so composed my Case, as both old and new be therein contained, wherein the point will be shortly this, Whether the new River and new Bank mentioned in my Case, could be ordered to be made by the power and authority of these Laws: And those which would take a part to argue on the contrary, may alleage much matter, and many reasons to make good their arguments; first, out of the words of the Law it self, for thereby it seemeth, that this Statute can bear no such expo­sition by reason; the words thereof literally taken, seem to [Page 68] extend onely to the old and ancient defences, and not to the erecting of new: And the words thereof in this point be these;

Forasmuch as the Walls, Banks, Ditches, &c. by the rage of the Seas, and by the fresh waters descending, be so lacerate, di­rupt and broken, the Commission therefore doth authorize the Earls of Lincoln, Rutland and Exeter; Robert Lord Wil­loughby of Grimsthrop, Sir William Welby, Sir Thomas Grantham, and Sir John Hatcher, Knights, whereof three to be of the Quorum, to survey and amend the said Walls, and Banks, Ditches, &c. in all places necessary, and the same as oft as need shall be to make new: Upon these words of the Statute, do those which argue against the new Defences infer, That the Commissioners have not any power to cause new Banks, new Walls, or other de­fences to be erected; and so take a difference between the words nova construere, & de novo construere, the first ex­tending to erect new ones where none were before, and the other purporting the erecting of a new one where before an old one stood: and the words which inforce this exposition, be penned strongly to that purpose; for first, they have power to repair and amend, What? such Walls and Banks as were before, and the same to build new; which words, The same, literally taken, must needs extend to such old fences as were before; and the construction being so made, excludes clearly the power to make new ones where none was before: and this exposition may be exampled in other Cases of like quality, as in 22 H. 6. fo. 18. where it is said, 2 [...]. H. 6. That if Lessee for years suffer a house to fall down, and before an Action of Waste be brought against him, he buildeth another in the same place where the former stood, of the same quality and quan­tity, that shall excuse him in the Action of Waste: but so would it not have done if he had builded the same in all points answerable in another place, for the one is renewed, the other a new one: and in the 10 H. 7. fol. 18. in the 10. H. 7. fol. 18. Abbot of Thorntons Case, the words in a Lease were, That the Lessee should repair a Chappel leased to him, and the same [Page 69] de novo construere & constructam curare, which words there bear the same sence in exposition: And the Statute of Magna Charta cap. 16. seemeth, touching Banks, to sway Magna Charta Cap. 16. the same way; for there the Statute is, Quod nullae repariae defendantur nisi illae quae fuerunt in defenso tempore Henrici Regis avi nostri & per eosdem locos & eosdem terminos sicut esse consue­verunt tempore suo; this makes much against erecting of new Banks, if it be in force: for if no person should be bound to repair such as were built since that time, then were it vain to build new ones. Sir Edward Cook in his Case of the Isle of Ely, is strongly of the same opini­on, Case of the Isle of Ely. That no new River should be made and cast by the power of this Commission; for the case there is, That the Commissioners of Sewers in those parts made an order and decree, That a new River should be cut out of the old River there called Owse, through the main Land seven Miles unto another part of the said River: And the question there was, Whether the Commissioners of Sewers had any such power or not? and he there deli­vered his opinion expresly, That they had not; and affirms it, That it was dangerous and incovenient that Commissioners of Sewers should have any such Power and Authority, for then they might thereby stop up the Havens, which are the Ports of the Realm: And for the justifying of this opinion therein, he alleageth Fitzher. Na. Bre. fol. 225. and the Register, fol. Fitz. Na. 13. Fol. 225. Regist. 252. 252. that in case where a new River or Stream was desired to be made, the Writ of Ad quod damn' was to be awarded, which should first be directed to the Escheator of that county, to the end he must enquire and certifie what da­mage it might be if such a cut should be made, or a new Trench cast; and so concluded directly against the making of new Rivers and drains by the Commissioners of Sewers. And truly there is one thing more which makes strong on that side, which is, That a new River, drain or cut, cannot be made but through some mans private Inheritance, and to the prejudice thereof, which is a matter very conside­rable: So that all these things laid together, might very well move Sir Edward Cook to be of the said opinion, That [Page 70] no such new River or drain could be made by the Com­missioners of Sewers by the power of these Laws.

The Kings Councels Order.

HIs Majesties Attorney-General having ac­cording to an Order of this Board of the Thirteenth of October last, called unto him the [Page 74] Kings learned Councel; and taking Information of such Complaints as were first exhibited unto this Board, touching sundry Suits and Vexations moved of late by certain obstinate and ill-disposed persons, against His Majesties Commissioners of Sewers, for the counties of Lincoln, Huntington, Northampton and Cambridge, and their Officers and Ministers, for executing the Orders and Decrees of the Commissioners, to the manifest destru­ction and inundations of many large Levels and parts of the said counties: And having by their Lordships like Directions, upon advised conside­ration, weighed and compared the said late and undue proceeding with ancient Laws of this Realm, appearing in divers notable Records in the point now questioned, with the continual and concurrent practise of ancient and later times; and also the Opinions of the Lord Popham, late Chief Justice, delivered in writing very exactly and fully upon the said Questions, touching the Power and Authority of the said Commission; and there­upon making Report at large unto their Lord­ships this day in full Counsel, of the whole state of the cause; Forasmuch as thereby it appeared, That these Inventions and Disturbances consist upon Four heads, wherein the extent of the Com­mission was questioned, upon pretext and conceit of Law: First, that the Commissioners of Sewers had not Authority to cause new Banks, Drains or [Page 75] Sluces to be made where there had not been any before. Secondly, that they might not lay the Tax or Rate upon Hundreds, Towns or Inhabi­tants thereof in general, but upon the first Pre­sentment or Judgement to charge every man in particular, according to the quantity of his Land or Common. Thirdly, that they had not power sufficient to commit to prison persons refractory and disobedient to their Orders, Warrants and Decrees. And lastly, that Actions of Trespass, False Imprisonment, and other Proces at the Common Law, have been brought against some of their Officers and Ministers for executing their Decrees and Warrants; Their Lordships finding in their wisdoms, that it can neither stand with Law, nor with common Sense or Reason, that in a cause of so great consequent the Law can be so void of Providence, as to restrain the Commissi­oners of Sewers from making new works to re­strain the fury of the Waters, aswel as to repair the old where necessity doth require it for the safety of the country, or to cause a charge upon the Towns or Hundreds in general that are interessed in the benefit or loss, without attending particular Survey or Admeasurement of Acres, when the ser­vice is to have speedy and sudden execution, or that a Commission of so high a nature, and of so great use to the Commonwealth, and evident ne­cessity, and of so ancient jurisdiction, both before [Page 76] the Statute and since, should want means of coer­tion for obedience to their Orders, Warrants and Decrees, when as the performance of them, the preservation of many Thousands of His MA­JESTIES Subjects Lives, Goods and Lands doth depend; It plainly appearing, That it will be a direct frustrating and overthrow of the authority of the said Commission of Sewers, if the Commissioners, their Officers and Ministers should be subject to every Suit at the pleasure of the Delinquent in His Majesties Court of the Common Law, and so to weary and discourage all men from doing their duties in that behalf: For the Reason aforesaid, and for the supreme Reason above all reasons, which is the salvation of the Kings Land and People, Their Lordships did Order, That the persons formerly Committed by this Board for their contempt concerning this cause, shall stand Committed until they release or sufficiently discharge such Actions, Suits and De­mands as they have brought at the Common Law against the Commissioners of Sewers, or any the Ministers or Officers of the said Commission; saving unto them nevertheless any Complaint or Suit for any Oppression or Grievance before the Court of Sewers, or this Table, if they receive not Justice at the Commissioners hands. And their Lordships further Order, That Letters from the Table shall be written to the Commissioners [Page 77] of Decrees of like nature, when it should be found needful, requiring, incouraging and warranting them to proceed in the execution of their several Commissions, according unto former practise and usuage, Any late disturbance, opposition or conceit of Law whereupon the said disturbance hath been grounded notwithstanding; with ad­monition nevertheless, That care be taken that there be no just cause of complaint given by any abuse of the said Commission.

Examinat' per Edmunds Cleric' Consilii.

Present at this Order making, were,

• 1. The Kings Majesty in Person.
• 2. The Archbishop of Canterbury.
• 3. L. Chancelor Elsmeare.
• 4. L. Treasure Earl of Suffolk.
• 5. L. Steward D. de Lenox.
• 6. L. Admiral Howard Earl of Notingham.
• 7. L. Chamberlain Earl of Pembroke.
• 8. E. of Arundel, Howard.
• 9. Viscount Wallingford.
• 10. Viscount Fenton.
• 11. Andrews Bishop of Ely.
• 12. Lord Wotton.
• 13. Lord Cary.
• 14. Secretary Winwood.
• 15. Secretary Lake.
• 16. Sir Foulk Grevil Chan­celor of the Exchequer.
• 17. Master of the Rolls Cesar.
• 18. Sir Francis Bacon At­torney-General.

All of them of the Privy-Councel.

This Order is in some points legal, and may stand for a direction in matters of Law, and the other parts thereof [Page 78] may stand for a president of State; and it thereby plainly appeareth, that the Kings learned Counsel were of Opinion, That the said new works might be Ordered and Decreed to be done by the Commissioners of Sewers, and that the same had warrant from former presidents.

But the last allegation on the contrary party is very forci­ble against this argument, That by the making and erecting of these new Defences, the inheritance of private persons are thereby prejudiced whereon they be built; yet as Cato saith, Vix ulla Lex fieri potest quae omnibus utilis sit sed si majori Cato. parti proficiat sufficit; and therefore this Objection I thus Answer, That these new works are not to be undertaken but upon urgent necessity in defence of the countrey, or for the safety thereof, so that the Commonwealth be therein deeply interessed and ingaged; and things which concern the Commonweal are of greater accompt in the Law, then the interest of private persons.

And so it is 13 H. 8. fol. 16. That the Commonwealth 13. H. 8. shall be preferred before the private Estate, and for the good of the Commonwealth a private person shall receive da­mage, if otherwise it cannot be eschewed; as a private mans house shall be pulled down, if the next house thereto be on fire to save the Town; and the Suburbs of a City may be pulled down in time of War, to save the City; and Bul­warks may be raised on private mens grounds for defence of the Realm: And what greater enemy can there be then the Sea, who threatens with his merciless waves to swallow up all before it, but that the hand of the Almighty hath tied Pro ch. 8. ver. 27. and bound him in the fetters of his eternal decree, and given policy and means to man to keep him from invading the Land by artificial works, proper for such services: There­fore in my Opinion, by the very true intent and meaning of the said Statute, and by a just, equal and reasonable con­struction, it should lie in the power of the Commissioners of Sewers, upon just and urgent occasions and considera­tions, to make Orders and Decrees for erecting and making of new Banks, new Walls, Goats, Streams, Sluces, and [Page 79] other necessary Defences against the overflowing of the Sea; For Ubi nova fit maris incursio ibi novum est apponendum remedium, with this caution, That under the pretence of the Commonweal a private mans welfare be not intended to the charge, trouble and burthen of the countrey: And with this also, That where any mans particular interest and inhe­ritance is prejudiced for the Commonwealths cause, by any such new erected works, That that part of the countrey be ordered to recompence the same which have good thereby, according as is wisely and discreetly Ordered by two se­veral Statutes, the one made in Anno 27 Eliz. cap. 22. 27 El. c. 22. Rastal Havens and Rivers, is where the Commissioners have power to compound and agree with the Lords and owners of the grounds through which the new cuts are to be made; And the other 3 Jac. Reg. cap. for bringing the new stream 3 Jac. to London: and although these Statutes hold not in the general Cases of Sewers, but are applied to the said particular matters therein expressed, yet they may serve as good Rules to direct our Commissioners to imitate upon like occasion happening.

The second Point upon this Statute.

It appeareth by my Case, That the Commissioners of Sewers did decree a new Bank to be raised, and a new River to be cast, and an old Sewer to be repaired upon their view, survey and discretion. The words of this Commission upon which I framed this part of the Case be these (videlicet) We have assigned you Theophilus Earl of Lin­coln, Robert Lord Willoughby of Earsby, Sir George Man­ners Knight, Sir Philip Tyrwhit, and Sir John Wray, Knights and Baronets, Sir William Pelham, Sir John Read, Sir Edward Ascough, Sir Hamond Knights, Anthony Erby Esq Quor'; the said Earl, Lord, and Sir George Manners, we will to be three to survey the Walls, Banks, Drains, Sewers, &c. and the same to cause to be repaired, amended or put down as cause shall require, after your wisdom and discretions, and to do after our Statutes; as also to inquire by the oathes of law­ful and honest men of those places where such default be. By the Tenor of which words I conceive, That Commissio­ners [Page 80] of Sewers have power by their Commission to pro­ceed three maner of ways; (viz.) first, By Survey: 2. By Jury: 3. By discretion; wherein it behoveth Com­missioners of Sewers to know perfectly, how to use and dispose of their powers with due understanding of these parts of this Commission and Law: And the better to pre­pare them herein, I shall take some pains to declare unto them what they may do by survey without a Jury, and what by Jury, and what by their discretion, without both Sur­vey and Jury.

View and Survey.

VIew is the primary part of Survey, and Survey is much, but not altogether directed by view. It is true, that view is of great use in the Common Law, and it is to be done and performed in person, and such views are taken in Tryals of Assizes; yet by the 36 Hen. 8. in Dyer fol. 61. Peningtons Case. a very personal view needeth not in an Assize, if upon exa­mination of the Jurors it may appear, that a competent num­ber of them know the grounds in question, in such sort as they can put the party in possession if he recover; but in an Action of Waste, an express personal view is both required and requisite, for the words of that Writ directs the She­riff Accedere ad locum vastatum; In a word, there is a di­versity between a view and a survey, for by the view one is to take notice only by the eye, but to survey is not only to take notice of a thing by the eye, but also by using other ceremonies and circumstances, as the hand to measure, and the foot to pace the distances.

And the Commissioners Surveyors have power to take information by examination of others: And although Judge Fitz. in 27 H. 8. fol. 27. holds a Surveyor of very small esteem in his power and authority, that is, That he may hear, see and say nothing Oier voier & rien dier: Yet under the favor of that book, I take a Surveyor to be of more esteem and authority; for by an old Statute made [Page 81] in 4 Edw. 1. Rastal Surveyors, first, he is there described to be a man which is to view the work, and to make inquity, 4 Ed. 1. and to set down which be Copyholds, which be Freeholds, &c. whereby it appeareth, that a Surveyor is an actor, and not a looker on, as Mr. Fitzherbert would have him; so by these descriptions the Commissioners may inform them­selves what is meant by the word Survey, put in the Statute: And many of our Statutes take notice of such an Officer as a Surveyor; For in the Statute of Bridges and highways, there be such Officers appointed; and in the Statute made for the erection of the Court of Wards and Liveries, there is a grave Officer appointed, who is called the Surveyor gene­ral of that Court, and he is a Judge in matters there handled.

And there is also an Officer in this Statute of Sewers, cal­led a Surveyor, who hath no judicial power, but is meerly an Officer.

What things Officers of Sewers may do by Survey onely.

EVery thing which Commissioners of Sewers are to do, must be by true understanding of their authorities; and this must be so done, that they make such distinctions, differences and applications as may stand with knowledge, skil and learning; or otherwise their proceedings will prove irregular: And therefore it is not only meet to describe the Officer Surveyor as formerly I have done, but also his Office, which I now mean to do.

1 First, Commissioners of Sewers may view the Defences, and thereby may inform themselves which stands in need of repairing and amending, and which not; and wherein the defaults and defects appear to be, and what they be.

2 Secondly, they may by survey take notice and know­ledge, by conference with Carpenters, Masons, Smiths and other Officers, what things are fitting to be provided for effecting the works, and what sums of money will be spent for the finishing thereof.

[Page 82] 3 Thirdly, the Commissioners may by view and survey, take knowledge of the lets, impediments and annoyances in the Banks, Walls, Rivers, Streams, Gutters, Sewers, and of the height and lowness of the said Banks and Walls; and may thereby discover and finde out the wants, imper­fections, weakness and strength of them, and so may cause the lets and impediments to be removed, and the wants to be supplied, and the weak places strengthned, as cause shall require.

4 Fourthly, also by survey onely they may sufficiently in­form themselves of the incroachment, and of the straitness, depth, wideness and shallowness of the Rivers, Streams, Gutters and Sewers, and may view the defects in these kindes.

These things I have produced as proper to be performed by view and survey of the Commissioners; and now I shall proceed to the rest.

Things to be done by a Iury.

1 FIrst, what person or persons did erect and set up any let and impediments, as a Floodgate, Mill-dam or such like, must be found by Jury; for here the words of the Statute are to be observed, which are these, And also to inquire by the oathes of good and lawful men of the said shire or shires, place or places, where such defaults or annoyances be, as well within liberties as without, by whom the truth may rather be known through whose default the said hurts and damages have happend, or who hath, or holdeth any Lands or Tenements, or Common of pasture, or profit of fishing, or hath or may have any hurt, loss or disadvantage by any maner of means in the said places, as well near to the said Dangers, Lets or Impediments, as inhabit or dwell thereabouts, by the said Walls, Ditches, &c. So that the first Article is full within the words of this Statute; and therefore it must be done by Jury, and no other accusation is of sufficient strength in the Law to put a man to his answer. And herein the makers of these Laws did sagely, for how should [Page 83] Commissioners of Sewers take notice by view or survey of such things as are done or committed in their absence?

2 Secondly, if any Wall, Bank, River, Sewer, or other defence be defective by neglect or sufferance of such as should repair the same, the Commissioners of Sewers are to inquire by Jury in whose default the same happened.

3 Thirdly, the Commissioners are to enquire, What person or persons ought or be bound by Custom, Prescription, Tenure, Covenant or otherwise; or for or by reason of what lands or grounds he or they be tyed or bound to do the repairs, and where those grounds do lye, and who be the owners thereof?

4 Fourthly, also it must be inquired by Jury, What grounds lye within the hurt or danger of waters, either within the surrounder by the sea, or the inundation of the fresh waters, and to whom they do belong?

5 Fifthly, and if a new Sluce, Goat or other defence is to be erected, built and made, or a new Sewer, Gutter or Trench to be cast, this may be determined of by the view and survey of the Commissioners, and so may the aptness of the places where they are to be set or cast, and the length, height, bredth and depth of them; for these things are proper for a view and survey: But what persons hold Lands and Tenements within the Level, which are fit to be charge­able thereunto, and the quantity of their Lands are to be in­quired of by Jury. And these few causes I have put for example sake: and if any other fall out within the like reason, then they are to receive the same construction.

6 Sixthly, in every case where an Amerciament is to be im­posed, it must be by presentment of good and lawful men upon their Oaths, Et hoc per statutum de Magna Charta, cap. 14. nulla miserecord' ponatur nisi per Sacramentum proborum & le­galium hominum de viceneto, &c.

Surveyors presentment.

BUt it hath been used, that Surveyors of the Sewers have made presentments of defaults of things governed by these Laws; but whether such a presentment be binding or not, is a good point. It is clear in my opinion, that they can make no presentment, but such as happeneth with­in their view and survey, and what those things be they for­merly appeared. They cannot present that I. S. is bound by prescription, custom, covenant or otherwise, to repair such a Wall, Bank or Sewer, for this is not within their Office. In Kelloways Reports fol. 141. there is a custom alleaged, that Kelloways Rep. fol. 141. two men within the provost might present the Articles of the Leet, But I doubt of such Presentment, though it have a custom to strengthen it: I take this difference, that an Original Presentment Surveyors cannot make, as to pre­sent I. S. that by the Tenure of his Lands he ought to re­pair such a Bridge, Wall, Bank or other Defence; But the Surveyors may make a supplemental Presentment; as for example, if it hath been presented before by a Jury, that I. S. ought to have repaired such a Ditch, and hath not done the same, and day is given him by the Commissioners of Sewers to do the same, if the same be not repaired at the day, the Surveyor may present in this case the not re­pairing, because this is but an Oath of assistance, ad infor­mandum conscientiam Judicis, for the Amerciament shall be imposed by the force of the said former Presentment; and this latter Presentment by the Surveyors, is onely to give the Justices notice of the parties farther neglect, to the end they may impose the greater Amerciament: And a Present­ment by Surveyors is not traversable, being of so smal esteem in Law, as our Law will not vouchsafe to take an issue upon it, for their act herein is not in the ordinary legal form.

What Commissioners of Sewers may do by Discretion.

DIscretion is the herb of grace that I could wish every Commissioner of Sewers well stored withal, for the makers of this Statute had an intention to make it of great use, being literally nominated nine or ten times in this Law, & for this cause I have inserted in my Case; but note, that the word Wisdom is coupled with it, and the word (Good) is an­nexed to them both, as best shewing of what pure mettal they should be made of, After your good wisdom and discretion.

There be three several degrees of discretion, Discretio generalis, Discretio legalis, Discretio specialis.

1 Discretio generalis is required of every one in every thing that he is to do or attempt.

2 Legalis discretio is that which Sir Edward Cook meaneth and setteth forth in Rooks and Keighlies Cases, Hoc est scire pro legem quod sit justum; and this is meerly to administer Iustice according to the prescribed rules of the Law; and herein is this discretion limited, that it go not beyond or besides those Laws which are to be executed: And this dis­cretion is to be governed by the Laws, for Cicero saith, Sapientis est judicis cogitare tantum sibi esse permissum quantum Cicero. sit Commissum aut creditum.

3 The third discretion is where the Laws have given no certain rule to be directed by in a case within the power of this Commission, there the Commissioners are to order these affairs with such wisdom and judgement, that although their censure be not framed in a Rule of Law, yet they are to do therein secundum aequum & bonum; and herein discretion is the absolute Iudge of the Cause, and gives the rule: But in the case of Legal discretion, there discretion is but a servant, and is tyed to attend upon the Law; and there the Law di­rects the censure, and discretion is but to do the same wisely & temporally; for ipsae etenim leges cupiunt ut jure regan­tur. Sir Ed. Cook in Book Case 5 Report, gives this rule to the Cato. [Page 86] Commissioners, That although the words of the Commission be, That they should do according to their discretions, yet their pro­ceedings ought to be limited and bounded within the Rules of Law and Reason; for that discretion is a Science to discern betwixt falsity and truth, between right and wrong, between shadows and substance, betwixt equity and colourable glosses, and the Com­missioners ought not to follow their wills and private affections; for, That talis discretio discretionem confundit: And therefore now I will declare in few words, in what things these Com­missioners are to be ruled by good discretion.

1 First, the quantity of Fines be left to the discretion of the Commissioners.

2 Item, Imprisonment of the bodies of the offenders when they deserve, and the time how long, lieth much in their discretion.

3 Item, it lieth in their grave wisdoms and discretions, when and where to erect new Walls, Banks and other De­fences, and what sums of Money to Raise and Levy therefore.

4 The election of Officers lieth in their discretion.

5 It lieth many times in their discretion whom to fine, and whom to imprison.

6 I take it this word Discretion used in the Statute, giveth power to the Commissioners to order businesses there ari­sing in course of equity, for hoc nihil aliud est, but to proceed secundum aequum & bonum.

I have put these few Cases as examples to direct and instruct what may be done by discretion, omit­ting many other, because I had rather trust to the worst certain Law, then to give too much way to the uncer­tain discretion of the Commissioners, according to the old saying, Quoad fieri possit quàm plurima legibus ipsis defini­antur Aristotle Ret. quam paucissima vero judicis arbitrio relinquantur; and herein I suppose I have made good my word in this, that I have proved by my Argument, That the said new Bank and new River might well be decreed by the view and survey of the Commissioners, and by their good discretion, and [Page 87] so might the said old Sewer be repaired; and therefore these being ended, I will now proceed to the handling of the rest remaining.

My former labor hath been to expound and declare what defences, as well against the overflowing of the sea, as against the inundation of fresh waters, were and be to be maintained, and also new erected by the Tenor and power of these Laws: So that now it comes very aptly to be handled, for what causes, considerations and matters one shall or may be tyed to the repairing and keeping thereof, which I take to be these nine several ways.

1. By Frontage. 2. By Ownership. 3. By Prescription. 4. By Custome. 5. By Tenure. 6. By Covenant. 7. Per usum rei. 8. A Township. 9. By these Laws of Sewers.

I suppose I shall produce sufficient Warrant and Autho­rities for to maintain all these distinctions, wherein I am desirous that Commissioners of Sewers, for whose learning and instruction I have taken these pains, would apply them­selves to do their duties and service herein carefully and advisedly, and like to skilful Physitians, would apply fitting Medicines to the curing of every disease, else shall they oftentimes Opprimere insontes & dimittere reos: But if they will seriously cast their eyes upon these insuing Cases, they will be very helpful to them in their proceedings.

Frontage.

FRontage is where the grounds of any man do joyn with the brow or front thereof to the Sea, or to great or royal streams; and in case of the sea or royal River, the property of the Banks and grounds adjoyning are and be­long to the subject, whose lands do but and bound thereon, but the soil of the sea and royal Rivers do appertain to the King, as formerly in my Tractate of Rivers may appear. But in case of petty and mean Rivers and streams, the soil of them, as well as the banks thereof, do appertain to them whose grounds adjoyn thereto; so that Frontage and Owner­ship [Page 88] in base inferior Rivers do not differ, but in great streams and the sea they do vary as aforesaid: And in 37 lib. Assiz. plac. 10. it seems that the Frontagers are bound to 37 assiz. pl. 10. the repairs; and in 8 H. 7. he whose grounds are next adjoyn­ing to a Highway, is bound to repair the same. And by 8 H. 7. these cases there is no difference touching repairs of the High streams and the highways in my opinion.

Ownership.

THe Ownership of a Bank, Wall or other Defence is a sufficient warrrant to impose the charge of the repairs thereof upon him, without being tied thereto by prescription, as appears in 8 H. 7. fol. 5. and it stands with 8 H. 7. reason, that every man should be bound to repair his own; and the consideration is also moving, for that his grounds which lie nearest the waters are soonest subject to drowning, and if any increase be upon the small Rivers it falls to his share.

Prescription and Custom.

PRescription and Custom are much of one quality, for in both of them the efficient matter is (use to repair) and the Law hath taken notice of them in many of our books: Prescription doth not binde or tie one to the repair of any thing, unless it be ratione terrae; and in this it doth differ from Custom: for if it be presented that A. B. and his Ancestors have time out of memory used to repair such a Bank, Wall or other Defence, this Presentment is void, and doth not binde the party pro ut constat in 21 E. 4. 38. 21 Ed. 4. 7 H. 4. 19 H. 7. 45 E. 3. 7 H. 4. 31. 19 H. 7. Kelwey fol. 52. and 45 E. 3. But bo­dies politique or coprorate may be by Custom bound to re­pairs, without making mention in the Presentment or In­dictment that they are to do the same ratione talis Messuagii terrae aut tenementi; And to that purpose be the books of 21 E. 4. 38 and 44 Ed. 3. Fitzherb. Title Bar. plac. 103. for 21. E. 4. 44 E. 3. [Page 89] there a Prior was presented, that he and his Predecessors had used time out of memory to repair such a Bridge, which was in decay, and this presentment, though it charged no Land, was good: And in 19 Hen. 7. aforesaid, it is 19 H. 7. said, that one might be bound to repair a Bank or Wall ratione Resiantiae, but this could not be otherwise taken but that he was charged to do the same for the house he dwelt in, for Resiantia imports so much.

Also if a man and his Ancestors have voluntarily made a defence for a long season, this will not binde his Heir there­to, though he have assets descended to him in Fee-simple, for descending charges will not binde the Heirs, unless he descending have assets, as an equal consideration to binde him thereto; neither will descending assets of Land binde an Heir in this case, unless the Land it self be really tyed and charged.

Tenure.

A Man by the Tenure of his Land may be bound to re­pair a Wall, Bank or other Defence mentioned in this 11 H. 7. Law, and in proof thereof the Book Case of 11 H. 7. fol. 12. is full in the point; where it is said, That if before the Sta­tute of Westminster the Third, a man had made a Feoffment in Fee; or if since that Statute one had made a Gift in Tail, to hold the same by repairing a Bridge, the said Feoffee and Donee and his heirs should have been bound by the said Tenure to repair the said 12 H. 7. Bridge; and with this agree the books of 12 H. 7. 18. and 24 H. 8. 24 H. Br. Case fel. 9. and in Porters Case in Sir Edward Cooks Porters Case. first Report, it is said, That if Lands were given to repair Ways, Bridges, Calceys or such like, this doth binde the Owners of those Lands to do those repairs in perpetuity: And in the Case of 12 H. 4. fol. 7. the Prior of St. Marks in Bristol was obliged and bound by the tenor of his Land to repair a common Sewer: and this enough to satisfie this point.

Covenant.

SO likewise a man may be bound by his Covenant to re­pair a Wall, Bank, Sewer or other such like matter, and he may binde himself and his heirs to do the same; but yet this Covenant will not binde his heirs after his death, unless there be left assets in Fee simple to descend to the said heir from the said Ancestor which made the Covenant. 28 & 29 H. 8. Dier. fol. 33.

Wherein I take this difference between a Covenant to binde an Heir, and a Prescription; for by Covenant the Heir shall be bound to the repairs, if he have assets descen­ded to him from that Ancestor; but the Heir shall not be bound by prescription to repair, though he have assets de­scended from his Ancestor who repaired the said defences: But if Land be charged therewithal by Tenure or otherwise, as a charge imposed upon Land by prescription, then the said Lands are therewithal chargeable in cujuscun (que) manus devenerint, quod nota.

It appears by the Statute of 43 El. cap. 4. That if Lands, Rents, Annuities, Goods or Chattels, be given towards 43 El. 4. the repairing of Bridges, Ports, Havens, Calceys or Sea banks, that the same shall be so imployed by that Statute: So that Goods, Chattels and Annuities, be charge­able to these repairs by the force of that Statute, as well as Lands, Houses and Grounds, in case any such thing shall happen to come before the Commissioners of Sewers.

But note besides all the former matter, That an Heir shall not be bound by the Covenant of his Ancestor, though he have assets descended, unless he be bound expresly by the word Heirs in the Covenant.

Vsus rei.

I Now intend to declare where use shall tie one to the re­pairs of the defences mentioned in this Law (I do not hereby mean that use which I have formerly mentioned in Prescription and Custom, which is use to repair) but the use I intend in this place, is, the use which one is to have of the defence or thing which is to be repaired: As where one and his Ancestors have used to have the use of the River or waters by sailing up and down the same, or have used to have a Ferry on or over them, or a Staith to go up and down, or a Crane to draw up waters, or some other Engine to draw up the waters for the use of their houses; These uses which men have of these things may be causes and considerations sufficient to tie them to the repairs of the Walls, Banks and Rivers: 37 lib. Assiz. And for warrant in this learning is the Book of 37 lib. Assiz. plac. 10. for there were some persons which were bound to repair the River, because they had passage on it with their boats, and others were charged because they had free fishing in the River; and in my opinion it stands with good reason, and agreeable to Law, That those per­sons, before others, should be bound and tied to the re­pairs of such things whereof they have peculiar and se­veral profits and use of more then others have: And it is manifest, that this very Statute aims full at this point, when it directed that such persons should be rated, taxed and sessed towards the repairs, which had profit of fishing and other commodities in the Rivers.

But least some may mistake my meaning and learning also in the said former Cases, I will therefore make the same plain by distinction, which is this, That Frontage, Owner­ship, and this use I last spake of, do not binde any to the re­pairing and maintaining of Walls, Banks, Bridges, Sewers or other Defences, when and where any other man or Cor­poration [Page 92] be bound to do the same by Prescription, Custom, Tenure or Covenant: For the said three parts, Frontage, Ownership and Usus rei, be but implicite ties onely in con­struction of Laws, and serve the turn onely when no other person or persons are bound expresly thereunto; and this distinction may be maintained by the Book of 8 H. 7. 8. H. 7. fol. 5. and other Books, where it is said, That he whose grounds is next adjoyning is bound to repair, unless some other be bound to do the same by Tenure or Prescription: Whereby it followeth, that if one be bound to do the same by special Tenure or Prescription, it freeth the Frontager.

Note also another difference, that in cases where a Fron­tager and one who hath liberum passagium on the River, and a man which hath a free Pischary there, are not any one of them bound to make the repairs alone, but all alike to­gether: and so is the Book of 37 Assiz. plac. 10. and I suppose the Book of 38 Assiz. plac. 15. maintains this point with me; for there the Law is declared to be, That he which 37, 38 Assiz. is bound by prescription to repair, is bound peremptorily alone to do the work, and not any other; and if no such person can be found, then the parties whose grounds do adjoyn, and those which have free fishing in the River, and free passage thereon, be all of them to do and perform the same joyntly, and no one of them is a dis­charge for the other, because they shall be in consimili casu. So by this which hath been said touching these matters, the Commissioners may see and behold how carefully and un­derstandingly the Laws of this Realm have indeavored to do equal Justice; and my desire is, that they would as care­fully put them in execution.

A Township Assessed.

IT hath been held for a great question, Whether a Town­ship or Hundred in general might be assessed and taxed to the Sewers, without imposing the same on particular persons? And Sir Edward Cook in the Case of the Isle of [Page 93] Ely, is of opinion directly, That a Tax, Rate or a Sesse Case of the Isle of Ely. could not nay might not be set or imposed upon a Town, or upon the Inhabitants of a Town; for saith he, The taxa­tion, sessment or charge ought to have these qualities; It ought to be according to the quantity of their lands by number of Acres and Pearches, or by the tenor of profit of fishing and Common of pasture, which if it should be laid upon a Town, it would hold none of those proportions: and his opinion is not alone in this very point, for in the ancient Charter of Rumney Marsh, Rumney Marsh Case. pag. 50. it is said, Quod unusquis (que) proportione, ac peri­culo incumbentium aequae contribuat; And page 12 and 39 of the same Charter, the Taxations is expressed to be Acres, Perches and Carucates; and our Statute in express wordsis, And all those persons and every of them to tax and assess, charge, distrain and punish, as well within the Limits, Leets and Bounds of old time accustomed, or otherwise, or elswhere within this Realm of England, after the quantities of their Lands, Tenements and Rents, and by the number of Acres and Perches, and after the rate of every persons portion, tenure or profit, or after the quantity of their Common of pasture, or fishing, by such ways and means as you the Lord Fitz williams, Sir Francis Vane, and Sir Thomas Mounson Knight and Baronet, Sir Edward Dimock, Sir William Armin, Sir Thomas Gran­tham, Sir George Ftiz williams, Knights, Richard Tothe­by and Edward King, Esquires, whereof three to be of the Quorum, shall seem most convenient: These words literally taken, afford the construction to be according to the opinion of Sir Edward Cook.

But on the other part I finde by many ancient Book; and Authorities of the Law, that Taxations and Charges have been generally laid upon Townships and Hundreds in matters of this kinde, as in the 37 lib. Assize plac. 10. Four several Townships were charged with the repairs of a River, because they had passage thereon with Boats; and in 38 lib. Assiz. plac. 15. a Township was there charged with 37 & 38. assiz. the repair of a Bridge: And the Statute of Magna Charta, cap. 15. quod nulla villa nec liber homo distringatur facere pontes nisi [Page 94] qui ab antiquo facere consueverunt; so that if ab antiquo a Town­ship had used to repair Bridges, it was tyed thereunto by the implyed construction of this Statute: And the Statute of 22 H. 8. cap. 5. gave authority to Iustices of Peace to charge a County, Hundred or Town with the repair of Bridges, if no certain person were specially tyed to the repair thereof: and many times in ancient Statutes and Books of our Law, we shall finde Townships and Hundreds charged generally, as in Doctor and Student, fol. 74. a Township was amerced; and by the ancient and famous Statute of Win­chester a Township shall be amerced for the escape of a Robber by the highway: And 3 Ed. 3. Title Corone in Fitz. pl. 293. a Township was amerced for the escape of a Mur­therer; and in 11 H. 4. 2. Brook 94. a Town was sessed for the expences for the Knight of the Parliament and might be levied on any persons goods of the town; and this was for the uncertainty of the persons, and for the infiniteness of the number of them, as it is said in Richard Godfreys Case.

But it may haps be objected on the other part, That if a Town or Hundred may be joyntly taxed, then it might so come to pass, that one mans goods which had no grounds subject to the charge, and which could reap nor take any hurt thereby, might come to be distrained for the whole tax, rate or sess of the Town; and another man which had great quantities of grounds there subject to danger might escape free; and therefore such exposition to be made of the said Law, were not within the rule and compass of equality.

And another objection may also be made, That it is true, that by an express Statute or Custom, an assess, rate or tax may be laid upon a Town or Hundred, as was done by the said Statute of the 22 H. 8. and others formerly menti­oned; but such exposition were contrary to the letter of this Statute of 23 H. 8. of Sewers.

I do confess, that if these two objections could not be answered, I should change my opinion: It is true, That if a tax or sess had been set upon a Hundred by the said Sta­ture [Page 95] of Winchester, for the escape of a Robber, and that charge had been levied upon one mans goods of the Town, as it might have been, he had had no remedy to cause his fellow Townsmen to be contributers to him to bear equal share with him; and so if the party robbed had recovered by Action against the Hundred, and the goods of one in the Hundred had been taken in execution, he had no means to get contribution: And yet that Law carried that defect with it Three hundred years, or thereabouts, till in the 27 year of Queen Eliz. cap. 13. wherein Order was taken, that if some one or few mens goods were taken in execution upon the Recovery in an Action taken against the Hundred by the party Robbed, he or they should have contribution, which before that Statute of 27 of Elizabeth could not be had.

But to give answer to the two objections: First, if in our case of the Sewers, a Township should be Taxed, yet this Tax could not be taken or Levied, but only of such as had grounds within the charge, which had good by the repair, or might have hurt by the neglect thereof; for in 11 H. 4. fol. 35. it is said for Law, That if a town be assessed in the Tax, and the Collector doth distrain the goods of a man of the town who was not chargeable thereto, that party may have and take his Action of Trespass against the Distrainer and Collector, for that he at his peril must look well to it, that he whose goods were taken were subject to the charge.

So in our case of the Sewers, if the goods of one which was not subject to the Tax or Assess imposed were taken, he might have his Action of Trespass against the distrainer, and should recover his damages thereby; so this salve cures one of the said maladies.

But then the case goes further, That if the goods of one man of the town should be taken for the whole Sesse of the Town, and he is such a person as in truth is chargeable thereunto, he can have no Action against the distrainer for taking his Cattle, for he is such a person as cannot excuse himself but that he is chargeable: This indeed draws the Case to a desperate issue, for this [Page 96] seems to be as great a mischief as ever the Statute of Win­chester did ever suffer, which was remedied by the said Sta­tute of 27 Eliz. but our Case hath not such a Cure provi­ded; Therefore it puts me to the old adage of Law, Better it is to suffer a mischief to one or moe particular persons, then to permit an inconvenience to the whole Commonwealth which con­cerns a multitude: But yet I shall give this objection a better answer, I hope, then with an old adage; for in our Case the party whose goods are taken for the whole town, is not without a fitting and convenient remedy; for when his goods be taken and he is constrained to pay the whose sess­ment of the Town, he may make his complaint to the Commissioners of Sewers, and may give in the particular names of every Townsman, and the quantity of each mans Estate which be charged thereto, or the true value of their Lands, and may crave of the Commissioners of Sewers for to make a Law to make them all to contribute, eve­ry one according to his portion of Land: And in my opi­nion the Commissioners of Sewers have power to impose a proportionable rate upon every of them, according to the quantity and quality of his ground, by way of contribu­tion, and may award Process to force and compel them to pay the same to the said party; whereby it plainly appears, that the party so distrained hath a direct remedy to come by his losses. In Doctor and Student a whole town was amerced, and they met together by common consent, and Assessed and Rated every man equally according to his ability, and alowed of as a good cause.

But Commissioners of Sewers may if they can come to the knowledge of the certainty of every mans Estate, rate in the primary and original Sesse every person according to his several quantity of Estate, which may be done in this maner, when the Commissioners be agreed how much to lay upon such a town, then to send for three or four of the Inhabitants, and cause them to give in every mans Estate; and to make and appoint them Sessors to rate every man, or else the Commissioners themselves, having true intelligence [Page 97] of every mans Land, may easily set the rate and charge upon every particular person in an even and proportionable sum; and thus every man at the first shall know his own rate, as in the assessing of the Subsidy, and no man shall be burthened with his Neighbors charge; and these were good courses to be used within both the letter and sence of these Laws: And this course was used by the Four and twenty Jurators in Kent in Rumney Marsh, who always upon their Oaths set Chart. of Rum­ney. down every particular mans ground in certain, and their just pag. 50. quantities, and accordingly were the parties severally taxed.

Howsoever the Tax in my opinion generally imposed upon the town is good, as appears by many Authorities and Books before remembred, even by this Statute, as well as by Custom; for in the said Book of the 37 and 38 lib. Assiz. 37 and 31 lib. Assiz. it doth not appear that the Townships there rated were so taxed by any Custom, but meerly by the Law of the Land; and so is the learning delivered to be in the Councels Order aforesaid.

And I do remember, that at the Assizes held at Lincoln in Anno 12. Jacobi, in a Tryal before Sir Edward Cook then Judge of Assize, in the Case of Sir Philip Conisby Knight, the town of Mauton was assessed five pounds, and Twigmore as much, and a distress was taken for non-payment there­of, and was justified in a Replevin, and the verdict passed for the distrainer, and no great scruple was then made of the said Assess laid and imposed generally upon the towns; which Case I specially noted, because it was tryed and passed for current before the said Sir Edward Cook, who had the year before reported the Law in his Tenth Report to the contrary. And I am also of Opinion, that if a new defence be agreed to be made, as a Wall, Bank, Sewer or any other, and a Sesse is appointed for this work, and laid upon a town, That the same is a good Sesse and well laid, as well as in the Case of old repairs, where Custom may give Warrant unto it, and the Commissioners in their discretion may so do in imitation of the said former rules and presidents, and it stands with good wisdom and discretion to [Page 98] imitate and follow ancient and approved Laws and Sta­tutes made in Parliament, which are done by the wisdom of the whole Realm: And in my conceit a decree made which hath no reference or dependency to former presidents, may be doubted whether it be legitimate or not, having no ancient Laws to patronize it. And thus I conclude my third point of my Case, That a Township may be taxed by the Laws of Sewers.

Tythes.

HEre is likewise in my Case a Parson Rated and Sessed for his Tythes, and is now to be put to the question, whether by these Laws he may be taxed for them, or not. The ancient Commissions of this kinde have very strict words in them to tie every one to the charge of these de­fences, being for the preservation of the Commonweal; and this Statute extends it self with a long and large arme to fetch and reach every man that hath grounds lying within the Level, and which partake of the good which the de­fences brings to them, to be contributory to the charge.

It is true that Ecclesiastical and Spiritual persons, as Parsons & Vicars hold their Ecclesiastical living exempt ab omni one­re seculari, for they do not hold their Churches of any Lord, but of the Lord of Heaven, in respect of the spiritual ser­vice they do therefore: And I take it, that Parsons and Vicars hold not their Churches in free alms, for then the Founder should be their Lord in point of Tenure and ser­vice, which I have not observed to be so in any: And in our Law Books it appears, that Spiritual persons were exempted from Lay and Temporal charges, as in Magna Charta, cap. 14. A Spiritual person shall not be amerced according to his Spiritual living: In Fitz. Nat. bre. fol. 228. there Fitz. Nat. bre. is a Writ directed by the King to his Officers and Ministers, forbidding them that they take not any Toll, Murage or Pontage of Ecclesiastical Parsons, Vicars and such like; and the said Writ sheweth, that by the Custom of the [Page 99] Realm no such exactions ought to be taken of them: And there is another Writ there to discharge them for paying Customs de bonis suis Ecclesiasticis vel de aliis pro sustentatione sua emptis; And also they have this priviledge, That the Sheriff nor any Lay-Officer are not permitted to meddle with their Ecclesiastical possessions; for in 20 H. 6. fol. 20. and in many other Books, it is held, that in a Writ of Sum­mons the Sheriff may not Summon a Spiritual person on his Spiritualities, but he must rather that he is Clericus beneficiatus non habens laicum feodum; and upon this return the party is to take a Writ directed to the Bishop, to Summon him on his Spiritualties: And therefore if the possessions of Spiritual persons are had in such great esteem in our Law, what then shall be done with Tythes which are said to be due Iure Divine, I have not read that they shall be charged to any thing but to the repair of the Temple in the 18 chapt. of Numbers the 21, 22, 23, 24, 25, 26, 27, and 28, verses, The Lord said, I have given to the Children of Levi all 18 chapt Num­bers. the Tenth in Israel for an Inheritance; and yet the Levites paid a Tenth thereout to the Priests; and so Clergymen in times past paid a Tenth to the Pope; and in imitation, or rather in reformation thereof by the Statute of 26 H. cap. 3. the 26 H. 8. like is now paid to the King, as Supreme head and Gover­nor of the Church here on earth: So here be charges paid out of the Tythes, but they be Spiritual charges. And in Mr. Seldens History of Tythe pag. 13. it appears by Col­lection and Connexion of Stories divine, That the first or Selden. the first year Tythe was paid to the Levite, The second to Feast at Jerusalem, and the third to the Poor: And had not the Statute of 43 of Eliz. cap. 2. made the Parson and the Vicar liable and chargeable to the relief of the Poor, which was in imitation as it seemeth of the Mosaical Law, they had not been bound or tyed to do the same; for it is held to be more charity to relieve the Church then the Poor: And in payment of Taxes and Subsidies they are granted in their Convocation house, a Councel meerly consisting of the Clergy, and then are confirmed in Parlia­ment, [Page 100] of which house also they are a Member. And there­fore in my opinion, seeing Tythes are so sacred a duty, that a Lay-man could not have any help for at the Common Law, and were exempt from temporal and prophane uses, I am therefore of opinion, That they are not to be rated or tax­ed by the general words of these Laws; Yet I am of opinion, that Tythes in the hand of a Temporal or Lay-man are to be rated by these Laws, for when they are come into his hands Tunc res spirituales fiunt temporales & transeunt decimae in Catalla.

But I must here leave these Ecclesiastical persons and their Church livings: There is another point of this Law will reach unto some of their possessions, as to their Gleab Lands which belong to their Churches, and their Meadow and Pasture grounds, for these be not sacred, as Tythes be, But came to them by the benevolent gifts of Laymen, and not ex duo dei & evangelii as Tythes did; and so they took that burthen with them from the Lay-donor, which after may be imposed upon them: And therefore such Parsons, Vicars or other Spiritual persons which hold a plough Land in Culture, are chargable by the Statute of 2 Mar. towards the repair of the highways, as other Lay men be: But in that Statute there be Ecclesiastical Officers used, as Churchwardens, whereby it was conceived, that that Statute had an eye to bring Ecclesiastical persons with­in the reach of it: And so for their houses and grounds I take them to be within these Laws of the Sewers, for the own Lands are also chargeable thereunto, and yet on earth within His Dominions He is said to be caput Ecclesiae, and as much reason were it to exempt His possessions as theris, if the respect of the person should bear any such sway in the Case.

Also I do finde by divers ancient Records, That Abbeys, Priories, and other Spiritual possessions, have been charge­able to the repair of Bridges, Calceys, Banks and High­ways, by Custom and Prescription,, as appeareth also by the Books of 11 H. 4. fol. 82, 83. and 44 Ed. 3. Fitz. 11 H 4. 44. E. 3. [Page 101] Title Bar. pl. 301. and I take it, that by a very express and special Custom or Prescription, a portion of Tythes in a Clergy mans hand may be charged with the the repairs of Bridges, Ways, Walls or Sea Banks, but not without a direct affirmative Custom; for I suppose that they may as well indure a charge in this kinde, as a charge in a Modus decimandi.

And so I conclude this part of the Case, That the person was not to be sessed for his Tythes by the general words of of this Law.

A Copyholder.

HEre is also a Copyholder taxed within my Case for his Copyhold Land, and whether he for his Copy­hold, and the Lord for the Freehold of that soil, shall be assessed therefore, is another question.

A Copyhold by the Custom of the Manor yieldeth and affordeth to the Lord Seigniory Rent, Fines due upon admittances, and such like duties; but the Copyholder hath the real and visible profits of the soil, & therefore both Lord & Copyholder receive Et commodum & salvationem, by the said defences: And therefore the words of this Law be exceeding copious and full in this point of sesse (viz.) To inquire who hath and holdeth any Lands or Tenements, or Common of pasture, or fishing, or hath or may have any hurt, or damage or losse by any means, in or near the said places; and in this case the Lord holdeth the said Land in Tenure, though not in Culture, and many ways may have hurt and damage; As if the Copyhold were overflowed by the Sea, the Lord should lose his Freehold of the soil, his Seigniory, yearly Rents and Fines for admittances, and all other perquesites: So that the said words of this Stature beat mainly upon him. But as there be reasons to be urged against him, so there be matters to exempt him from this charge, and to lay the burthen on the Copyholder.

1 First, though he be Lord of the Copyhold, yet he is [Page 102] seized of the Freehold thereof, but in Imagination and construction of the Law, for the Copyholder is pernor and taker of the visible and substantial profits.

2 Secondly, the charge of repairs respect the possessioner in presenti, which is easie to be found out, and not imagi­nary owners as the Lord is.

3 And Thirdly, if the Lord & owner should both be charged pro una eadem (que) re, which the Law doth never permit, for this is not like the Case of Lord and Commoner, they there shall be charged, the one for his Soil, and the other for his Common; for in this case the Lord is the immediate proprietor of the Soil, and he hath the present and real occupation thereof, as well as the Commoner hath the use of his Common; and therefore they shall both be taxed to these repairs diversis tamen respectis.

But for the Copyholder it may be objected, that he is not within this Statute; for in Heidons Case in Sir Edward Hcidons Case. Cooks 3 Report, it is truly said, That a Copyholder is not within the Laws and Statutes which alter the Service, Tenure, Inte­rest of the Land, or other thing in prejudice of the Lord; and this is the cause that a Copyholders Lands cannot be exten­ded or put in execution upon the Statute of Westminster the Second, nor in extent upon the Statute of Acton Burnel and De mercatoribus, for if they should, then might the Sheriff make the Lord new Tenants, without surrender and ad­mittances, which is contrary to Custom, the life and essence of all Copyholds; yet there is another good rule put in the said Case of Heidon, that is, That where a Statute is made for the general good and wealth of the Realm, and that no preju­dice can come to the Lord by alteration of Tenure, Service, Estate or Custom, there Copyholds may well be within those Sta­tutes; Therefore now it is to be considered, whether this Statute of Sewers will in any sort hurt or prejudice the Lord or no; for it is certain, that these Laws tend as much to the wealth and welfare of this Realm, as any can do; and in rating and assessing these Copyholds to the repairs of Banks, Walls and Sewers, &c. it alters [Page 103] neither the Copyholders interest, nor the Lords Tenure, nor doth it in any sort prejudice the custom of the Manor.

But then it may be objected, That if sesse be imposed upon a Copyholder for his Land, and be not paid, these Laws gives sale of Lands, which indeed is the onely clause of this Statute which is material, to exempt a Copyholder out of these Laws; for clearly I take it, That Commissio­ners of Sewers have no power to decree the Copyhold Land away for non-payment of the sesse: Yet I am of opinion, that a Copyholder, though he be not within that part of the Statute which giveth sale of Lands, yet he is within the other part thereof, for divers Reasons.

One I finde by experience, and in divers presidents, that many Copyholds have been and be charged with re­pairs of Bridges and other defences in divers parts of this Realm by customs: Also if a Lord grant a Copyhold to I.S. and his heir by Copy Tenendum by the repairs of such a Wall, Bank or Bridge, this bindes this Copyhold thereto in point of charge.

And lastly, this Statute bindes such to the repairs which may have good by the doing, or hurt by the neglect: And it is apparant, that by over flowing or inundation, a Copy­holders Land sustains equal damage with other Lands; and for these Reasons I resolve that a Copyhold is within these Laws: And shortly touching Copyholds, I do confine them to these four heads.

My four Tenents concerning Copyholds.

1 First, a Copyhold is sessable towards these repairs for his Copyhold.

2 Secondly, that the Lord of the Copyhold is not to be taxed for the Soil of the Copyhold; for although he might come to it by forfeiture committed, yet that is a forain possibility: and although he be seized in Law of the Free­hold, yet because the Issues and Profits go with the Copy­holder, this Law therefore will not charge him for the Soil.

3 Thirdly, in respect the Copyhold rent is a rent of Assize, [Page 104] and rents be within the express letter of this Statute, and because his rents by the overflowing of the Sea be lost, there­fore the Lord shall be assessed for it if it be of value.

4 Fourthly, I am of opinion, that a Copyhold may not be sold by the Commissioners of Sewers, and yet Copy­holders be within other parts of this Law.

Now because it is a high point in this Statute, in what maner to rate, tax and assesse by the judicious power of these Laws: and in regard my Case toucheth all maner of Sesses and Rates which be or may be imposed by these Laws, I will therefore spread it abroad: and I do intend to treat of what Lands and other things are to be assessed, towards the repairs in my Case, and what persons to be assessed, and in what degree.

Wherein first I am of opinion, that one is not to be assessed for his high and descending grounds, for so it ap­pears Register. was the opinion of Brudnel in the 12 H. 8. fol. 3. where he saith, That if a mans ground be surrounded with waters, he may make a trench in his own grounds to let the waters run down­wards, and to descend upon his neighbors grounds, for water is an element descendable (jure naturae) And also high descen­ding grounds can have no such use of Walls and Banks, as other grounds scituate lower may have, for the waters can have no force against them, and therefore the owner is not chargeable therefore; and the words of the Commission expressed in the Register be, Qui defentionem Commodum & salvationem per Predict as Wallias, Guttur as, pontes, Calceta & gurgites habere poterint nullatènus parcantur. And the Char­ter of Rumney Marsh seems to bear the same sence (viz.) Quod pro securitate dicti Marisci districtiones fiant ita quod aequè fiant secundum portiones majores & minores quas homines habent in eodem Marisco; But high grounds by nature need not Engines of art to defend them: And in Rooks case in Sir Rooks Case. Edward Cooks 5. Report, and Keighleys Case, it is truly de­clared, That the grounds lying on the Level which are in appa­rant danger subject to surrounder, are only chargeable to repairs by this Law; But yet grounds lying on high Mountainous [Page 105] places may be by Custom, Prescription or Tenure liable and stand chargeable to repairs of Walls, Banks, Sewers, Goats and other Defences: And in such cases though they be never so high, yet these Laws will reach unto them, but no charge is to be imposed on them by this Statute, and by force thereof onely without a special Custom or Prescripti­on to warrant the same.

Annuity.

IF a Dean and Chapter or other Corporate persons or Body Politique be by Prescription to pay a yeerly Annui­ty to I. S. and his Heirs, I. S. is not sessable for his Annuity, yet the said Corporate or Politique persons pay the same in respect of their Lands which lie in danger of surrounding, and so the grounds be subject to these Laws, but it issueth not thereout: And the said Corporate and Politique persons are not charged in their Lands, but in respect of their Lands to pay the same.

Commons.

THose persons which have Common of Pischary, Tur­bary, or of Pasture in great Fens, Marishes and Wastes, may be charged, but Commoners in agris seminatis after the corn severed, as stock Commons which be of a smal value, are not to be charged for their Commons, but for their Lands.

Ferry.

HE which had a Ferry over a River was in 37 lib. Assiz. pl. 10. charged to repair the River, and so for a Ferry one may be charged by this Law.

Herbage.

HE which hath the Vesture or Herbage of grounds, as Prima tonsura vel vestura terrae, may be charged to the repairs.

Free passage.

IT appears likewise, that those persons which had passage for their Boats on the River, were to be rated towards the repairs in 37 Lib. Assiz. pl. 10. but this is to be intended of those persons which had free and customary passage thereon, as a liberty and inheritance, and was not meant nor intended of poor Boatmen which come thereon with their Boats accidentally, by the general Custom of the Realm.

Parks, Warrens, Chases.

A Man for his Park of Dear, and Warren of Conies, shall be charged if these liberties lie within the Level; but for Chases I suppose one is not chargeable onely, for Dear which be ferae naturae not bound to certain precincts, but in that case the owner is onely to be taxed for the Soil.

Mart, Fair or Market.

ALso if one have only the liberty of a Mart, Fair or Market to be kept in a place which is subject to sur­rounder, In my Opinion because they are but casual in their profits, and not continuall in their being, although they be conscribed to place and circuit, yet being no part of the Soil, nor of the issues and profits thereof, they are not taxable within these Laws.

Offices.

THe Office of the Clerk of the Market, Town Clerk, or such like, although these Officers be confined to a certain place and precincts within the Level which is sub­ject to surrounder, are notwithstanding exempt from these taxations.

Proxies, Synods.

HE which hath Proxies or Synods of Annual sums of money, such as was in the Case of Proxies in the Irish Reports, is not sessable within this Law; for although the person is charged therefore in respect of the grounds, yet the same doth not issue thereout.

The Morgager for the Title he hath by the Condition to reduce the Lands back again to him, or he which hath title to Land by Action, Condition or Entry, or he which hath a contingent use shall not be taxed for them.

Neither was Cestui que use at the Common Law before the Statute of 27 H. 8. of uses, nor is the Bargainee of Land before the Deed be inrolled sessable by this Law.

Neither is one who hath the presentation or nomination to a Church as Patron, or he which is Founder for his foun­dership, Taxable within this Statute, yet they be Tenements, the largest words of charge within this Law; but the Law intends the immediate possession of such Tenements which be proficuous, and not these things which be Tenements in Law, and which be but conveyances, and their fruit is Ceremony without Substance.

This Law setteth down such things for the which one is chargeable, viz. (He which hath Lands, Tenements, Rents Commons of Pasture, Profit of Fishing or other Commodities and such as have Safety, Profit, Defence or any other Commodity These be the words of charge recited by this Law: This word Land is of large extent, for it reacheth to house [Page 108] Arrable, Pasture, Meadow, Mills, Tofts, and to all other Edifices, Moors, Marishs, Woods, Wood grounds, for all these the earth is the substance Et omne solo cedet, and the several increases thereof be but qualities.

The word Tenements is of larger extent then Lands; for it containeth all which the word Lands doth, and all things else which lyeth in Tenure: so that I think it shall be but labor lost to enter further into the particulars thereof.

Lord and Tenant.

IF there be Lord and Tenant, and the Tenant holdeth of the Lord by yearly Rent services, the Lord may be rated as well for his Rent, as the Tenant for his Land, to Annual repairs, as well as to accidental, by reason of these words in the Statute (that is, That every one be rated and taxed ac­cording to the rate of every persons Rent, Tenure or profit) here be full words to charge the Lord for his Rent; and so Rent charges, and Rent seck shall be subject to sesses in this kinde: for otherwise the Tenant of the grounds may be un­done thereby, in regard the Rents going and issuing out of the grounds may amount to as much almost as the yearly value of the grounds do: But if the Rents be so smal as they are scarce worth the gathering, then in discretion the Commissioners may spare them, for De minimis non Curat Lex.

Also whether the remainder man, and he in Reversion depending upon an Estate in Tail, shall be rated and taxed, or not, by the power of these Laws, is an apt question for this place; and therein my opinion is, That being dry and fruitlesse Remainders and Reversions, they shall not be sessed to the repairs, but the Tenant in Tail in possession shall be solely charged: for it is more to be feared, that Tenant in Tail will cut off the Remainder and Reversion by a Recovery, then that the Sea shall drown his Estate by an overflow.

Lessee for years, and he in Reversion.

IN the Case of the Lessee for years and for life, and those in Reversion and Remainder, there is a greater cause of dispute then between Tenant in Tail, and he in the Rever­sion: And because it is an often Case, I have therefore taken the more pains to resolve the same.

First, the Lessee is in the present possession, and so is sub­ject to all ordinary charges; and with this agreeth Jeffrays Jeffrays Case. Case in Sir Edwards Cook 5 Report; for there the Case was resolved, that where the Inhabitants of a Town were assessed towards the repair of a Church, there the Lessee for years was charged, and not the Lessor, though he had a yearly Rent reserved: For in point of the Rent this Case and that will differ, by reason Rents be expresly within this Law; but I now speak of a Lessee where no Rent is reserved: In 17 Ed. 4. fol. 6, a Tenth was granted to the 17 Ed. 4. King by Parliament, of the value of their Lands, and the Lessee for years was charged therewithal, and so was the Law there taken, if the Parliament had given the Tenth part of the issues and profits of the Lands.

The Case of the Proxies in the Irish Reports doth in my Opinion in reason resemble this Case; for the Case was Case of Pro­xies. there, That the Bishop of Meath in Ireland had a Proxy of fifteen shillings payable out of the Commandry of Kells, then parcell of the possessions of St. Johns, all which came to the Crown by the dissolution of Monasteries in that Kingdom; and after the said Bishop granted the said Proxies to Queen Elizabeth, and after Q. Elizabeth made a Lease of the Commandry to Dr. Forth, reserving a yearly Rent, without mentioning the Proxy; And it was there resolved, That Doctor Forth the Lessee for years should be at the charge to pay the said Proxy, with all the arrera­ges thereof which did incur in his time: And so in the case of a Rent charge, the Lessee is chargeable, and he is to pay the Tythes, and the Composition money due therefore: So that these Cases sway strongly against the Lessee for years, [Page 110] to lay the whole charge upon him, and to exempt the Lessor.

But yet we must here distinguish and make a difference between Annual repairs in ordinary things, and extraordi­nary repairs for to furnish the defence with petty reparations, they shall be laid only upon the Lessee for years or for life; but if a new Wall, Bank or Goat, or Sewer be to be built new, and erected; or if the ancient defences be decayed in the main timber, or in the principal parts thereof, here as well the Lessor as the Lessee shall be put to the charge, for these things be not ordinary and annual charges, but do reach from the beginning of the Lease to the top of the Inheritance: as for petty reparations they are by intendment to continue but for a short time, which are likely to be spent during the term and lease; but these new defences are ap­parantly done to save the Inheritance: And this difference holds good correspondency with other Cases in our Law, as in 49 Ed. 3. fol. 1. and 3 Eliz. in Dyer fol. 198. and in 49 Ed. 3. 3 Eliz. Dier. that Book again fol. 134. and in divers other Books it is holden for Law, That if a house in Lease decay in the Groundsels, Post or Balk, in the great timber, in di­rect wearing by tract of time, and not in default of the Lessee; the Lessee may take and cut up timber growing on the grounds leased to repair the same, and the Lessee shall be at charges of workmanship, for the repairs are in matter of right, and do the Lessee good during his Lease, and the Lessor after the expiration thereof: And because these great repairs extend to both their goods, therefore they shall both be contributory thereto: But if a house be decayed in splinting, thack, walling, or in such petty matters, the Lessee for years shall be at the sole charge, for these may be spent in his own time.

So I suppose my meaning is herein well perceived, which is, That in petty, annual and ordinary repairs, the Lessee alone shall do the same; but where the same wants in great timber, or when a new defence is to be built, they shall both be at the charge: And with this the Statute of [Page 111] 7 Jac. cap. 20. doth directly in reason agree withal; out of 7 Jac. cap. 20. which Statute it is plainly to be observed, that in the great repairs, as also in the new building, as well the Lessor as the Lessee shall be both at the charge: Yet in the Statute of 3 Ed. 6. cap. 8. there is a clause in effect, That all Lots, Scots and sums of money hereafter to be rated by the Commissioners of Sewers upon the Kings Lands, shall be gathered or levied by di­stress on those grounds as in case of other persons; and that all Bills of acquittance signed with the hand of such Receiver or Col­lector, shall be a sufficient Warrant to the Auditors and Re­ceivers, and other the Kings Officers, for allowance to the Farmer or Tenant to the Kings Majesty; Whereby it appeareth, that the Farmer of the King shall not be at the charge, but His Majesty; yet by the Statute 13 Eliz. cap. 9. it may be col­lected, that the Lessor for years shall be charged, but all 13 Eliz cap. 9. these are to be reconciled with my said diversity.

But now it may be objected to me; Sir do you think it rea­sonable or possible for Commissioners of Sewers to take notice at the Nota. first of every private mans inheritance, and the several Estates which the parties have therein, when it will scarce be possible by private search to finde them out?

To this I answer, That it is not reasonable to tie the Com­missioners to such difficult and obscure businesses; but it is sufficient for the Commissioners to impose or lay the rate, tax or sesse on the grounds, or on the visible possessors thereof: and if the money so rated be demanded on the Lessee for years, or for life; or if the goods be distrained therefore, or they be compelled to pay the same, then they may come before the Commissioners, and shew forth their lease, and make it appear, that I. S. hath the Reversion, and as the case is, to be charged as well as himself; and upon due proof thereon made, the Commissioners upon hearing the parties on both sides may apportion the tax on either of them, as in Justice, Discretion and true Judgement is requisite. And so if a tax be set upon Land, the owner may come in before the Commissioners, and make it to appear before them, that I. D. hath a common, and Rent thereout; and upon proof [Page 112] thereof made, the Commissioners are to lay the charge ac­cordingly: And so it shall not tie the Commissioners at the first to lay the charge upon every particular person, for that were opus in finitum & impossibile, but to relieve the parties upon their complaint; and this may be easily done, and it stands with the Justice of these Laws so to do: And if the parties grieved will not complain for relief, let it be justly accompted their own folly, and no injustice of the Com­missioners; for the very Statute directs, that such as are 1 H. 4. ch. 12. grieved shall have relief upon their complaints, which con­firms my opinion in this point.

Taxes, Rates and Sessments imposed meerly by the Laws of Sewers.

I Have formerly put nine several matters to tie men to the repairs, and this, by the Laws of Sewers is the last, but not the least of them: I propose these to be by the Laws of Sewers, because they be not backed, helped, aided or as­sisted by Customs, Prescriptions Common right, or by any other Rule of the Common Law, or by Tenure or Covenant, or any act of the party, as all the rest be, but are only composed, made, ordered and directed by the sole power and authority of these Laws of Sewers: and these are such as fall out of all the fomer rules, and therefore in nova causa novum remedium est adhibendum: But yet before I enter into my own works, I will set down and declare the opinions delivered in Rooks and Keighleys Case, which seemed one of them opposite to the other: for in Rooks Case it is said, That if one be bound in respect of his Lands to repair a Wall or Bank by Tenure, Prescription or otherwise, that yet the Commissioners of Sewers could not assess the said party alone to re­pair the same; and said, that the Commissioners were not tied to the Rules of Prescription, Tenure, Custom or otherwise, but ought to assess all the Level to do the same, which are to have good thereby: But this being mistaken, is very justly and discreet­ly altered in the said Case of Keighley by the Author him­self; [Page 113] for how could it be presumed, that the learned makers of this worthy Law would have stricken down at one blow so many thousand Prescriptions, Customs, Tenures, Co­venants and uses, as be within this Realm, which be tied and bound to do and make the repairs in this kinde, some in consideration of houses and land, others for yearly Rents, and for other causes, which to have set at liberty, and to have imposed the charge on the Levellers, would have wrought and brought a wondrous innovation, change and alteration in these works; all which by this exposition are freed and saved: But yet there be certain Cases which of meer necessity lay the charge upon the Level, which are as follows:

The charge upon the Level.

1 FIrst, if any grounds were heretofore by Custom, Pre­scription, Tenure or otherwise obliged and bound to re­pair any Wall, Bank, River, Sewer, Goat, Sluce, Jetty, or other Defence, which grounds so charged have been of late devoured and overflown by the Sea, and so remain; The Commissioners of Sewers are in that case tied to lay the charge now upon the Level, which stand in danger of taking hurt by the not making the repairs, or which are to receive good by the doing thereof.

2 Secondly, also if A. B. be bound by the Tenure of his land to repair a Bridge, Calcey or Bank, and he dieth with­out heirs, whereby the Land escheateth to the Lord of the Fee, in this Case the Tenure is ended, and the chief Lord is not bound to the repairs, and therefore now the charge must lie on the the Level, and so is the Law if this Tenure had been in other sort extinguished.

3 Thirdly, where no persons or grounds can be known, which ought to make the repairs by Tenure, Prescription, Custom, Covenant or otherwise, then the Commissioners of Sewers are to lay the charge on the Level.

4 Fourthly, if John à Stile be chargeable to make the re­pairs [Page 114] and be not able to do the same, here the Level are to be charged to assist him therein, as appears in Keighleys Case.

5 Fifthly, if I. S. by reason of his Lands or otherwise be tied to repair the Sea bank, but the hazard is so apparant dangerous to the country, that I. S. in all likelihood cannot repair the same: and so the country might be in danger to be overflown ere I. S. alone could do it, here also the country on that Level are to be rated and taxed towards the same: Keighleys Case.

6 Sixthly, if the Sea at the Spring tides, or at extraor­dinary casual swelling Tides or Floods, have broke down the fences, and overthrown the Banks, and drowned the country without any default in the party who was tied to have repaired the same; the Level shall in this case make up the breach, for things which happen extraordinarily by the Sea or great waters, which neither policy of man could prevent, nor industry or force could resist, are count­ed irevitable and undefenceable, and so is the Law in the Case of Lessee for years or for life if they suffer by neglect their Banks or Walls to be broken down, and their grounds surrounded, they be punishable in an Action of Waste: But if those grounds by the extraordinary rage and violence of the Sea or waters be born down, and their grounds surrounded thereby, they are in this case freed from all Wastes; and in proof thereof the Case in 28 and 29 H. 8. Dier fol. 33. is much to this purpose, where one 28 H. 8. Dier. made a Lease for years of grounds to I. S. lying near the River of Eye, and the Lessee covenanted to repair the Banks of the River to preserve the Meadow from surrounder; yet after an extraordinary flood, the Banks were broken down, and the Meadows were surrounded, and it was there holden to be no breach of Covenant. Nota, this was in ☞ the Case of a fresh River, whereby in this Case the Law must lay the charge of the Level, if any danger be likely to ensue by the protracting of time.

7 Seventhly, if one do hold his Land by the yearly pay­ment of Ten shillings towards the repair of a Wall, if this [Page 115] money will not defray the charge, the rest must be laid on the Level.

8 Eighthly, if a new Wall or Bank be to be erected, or a new Sewer, Trench or River to be cast, or Sluce or new Goat to be built, in these cases the Commissioners must lay the charge on the Level which are to take benefit thereby, as well for new building thereof, as with the maintaining of them: for in the Case of new defences there can be no Pre­scription, Custom or Tenure bound to do the same.

9 And lastly, In case there be a great Port in the country, by the which the whole country hath benefit; for the Ports and Havens as hath been said, be Ostia & januae Regni, and are the defences to the whole country tempore pacis & tem­pore belli, and are these places, by means whereof the up­land countreys be made partakers of the sea Commodities; therefore in my opinion, the extraordinary repairs of these be not altogether tyed to the Level, as in other cases, nor to Prescription or Custom of repairing, which extends but to ordinary defects, but upon great and urgent necessities: for the safety of the Port, upon the welfare whereof the safety of the country doth depend, the whole country are obliged and bound to contribute towards the repairs, for these reasons following:

1 First, for that in time of peace it is the Gate which openeth it self to let in from Foraign parts the Ships and Barques, which bring hither to this Island such Merchandi­zes, Wares and Commodities, both for our profit and plea­sure as we have need to use.

2 Secondly, at these Ports we ship out to Foraign Nations our excess of Corn, Cloth, Skins, Lead and other Wares, wherewithal we do abound, and receive in truck therefore other things more useful and necessary for us.

3 Thirdly, in time of War we have shipping here for our Soldiers, and means at the easiest charge to Transport them to such places as the King and Councel shall direct.

4 Fourthly, in those Ports are commonly great Havens, which are the chief receptacles of all our fresh waters, into [Page 116] which the waters which drown the grounds of the coun­treys adjoyning are conveyed.

5 And lastly, it appears by divers Authors, that a country well furnished with Ports and Havens, is not more strength­ned then honored thereby; and if it be as lawful as conve­nient to put a case of Chronicle Law upon it, in the 28 year Eliz. in Holingshead Chronicles, it appeareth what great care the Queen and the Lords of the Privy Counsel, and the Hol. Cron. Knights and Gentlemen of Kent took for the repairing of Dover Haven, what preparation was made for it, what moneys Levied, and how forward all the country was to effect that work, may be a Spectacle to others for to lend their helping hands to the maintaining of such worthy works, being of all other the most Honorable to our Na­tion, and the most useful to the inriching thereof; for which causes in my opinion, because the Mountains as well as the Valleys have both Salvationem defentionem & commodum thereby, therefore in time of need the one as well as the other should be charged by the power of this Commission, to contribute to the extraordinary repairing of the same.

I have now proceeded in this point of Sess so far, that I take it, I may justly here make my full period of this days exer­cise; and I have taken up the more time herein, because thereupon a main part and strength of this Law consists: And therefore I will now apply my self to my conclusion, in the which I have already proceeded so far, that I have made it in some sort to appear, that some of the Sesses in par­ticular are not well imposed, as the Lessee in case of the new defences was not alone chargeable, for that he in the rever­sion was to contribute thereto, and that no imposition ought to have been laid upon, the Parson for his Tythes, but the owner of the Soil was to be charged for all; so that these two be already ruled for me: But yet if any of the Sesses should be good, then I should fail in my conclusion; I shall therefore set forth in few words, that all the Sesses are void.

And the cause is this, That the draining of the super­fluous [Page 117] waters in S. appeareth by my Case to be only com­modious for S. and that D. the other town had no good thereby: And it appears also, that by the repairing of the ancient Sewer in D. that town only had benefit thereby, therefore to assess S. to repair in D. and D. to contribute to S. where in those Cases there could be no benefit, is directly against the letter and sence of these Laws; but herein either of them ought to have been at charge with that, by the which it took benefit, and that not otherwise; and therefore the mixture marred all the matter: And so upon all this I con­clude my Arguments as I did my Case, that the new Bank, new River, and old Sewer were well decreed, but that the assess is void in toto & in qualibet parte.

IN my two preceding Cases; the main body of this great Law were contrived, and therefore I took a greater & larger compass in my Arguments therein, then otherwise I would have done; and I am now come to the execution of these Laws; wherein the life and livelihood of all Laws consist: And it may well be said of execution, as Mr. Plowden in Zouch and Stowels Case, Plow. com. in his Commentaries, fol. 358. saith of a fine, that it is finis fructus exitus & effectus Legis; so is execution the fruit, issue and end of the Law, and without it nothing is effectu­al, and till it come nothing is material; for to begin a Suit and stay at the declaration, were a fruitless enterprise; and to proceed on to Judgement, and to go no further, were like a Traveller which undertook a journey, and returns or sits down without further moving, before he came at the end of his intended progress.

Law, as Cicero saith, is but mutus Magistratus, the Ma­gistrate is Lex loquens; but I shall adde something, which Cicero. upon the matter is the sum of all things, that is, That exe­cutio est Lex agens: And because I esteem the time to be almost lost or mispent which is prologued out in preambles, I will therefore now briefly divide this part of this Statute into these insuing heads:

1 Either in punishing the body and person of the delinquent with

• Imprisonment,
• Fine, or
• Amerciament.

2 [Page 120]Or in doing execution upon the offendors goods By distress, or by the Absolute sale thereof.

3 Or otherwise in exten­ding upon the Real Estate, By charging the Land in per­petuity, or temporarily; or by the absolute sale thereof.

The true and due execution of all these in a just, legal, equal and qualified decree, requireth of all other parts of Law this greatest and truest discretion, consideration, wis­dom and judgement of the Commissioners: And I take it, it may stand as a ground infallible, that there be as many de­grees of punishments, as there be offences; It behooveth therefore the Commissioners to be circumspect, that they apply to every offence his due punishment; for it is injustice to punish the offence committed in a wrong degree, to pro­nounce a Traytors judgement upon a Fellon, or a Fellons judgement upon a Traytor, is grand misprision; to impri­son the body, or to fine the person, where an Amerciament is onely due, is not onely injustice in the Commissioners, but thereby also their discretions are to be drawn in question and censured.

And seeing the Statute doth so much lie upon discretion of the Commissioners, as in many parts of this Law it is mentioned; It seemeth the Parliament did give them to understand, That such as were to meddle in those affairs, should be both discreet and wise, and should strive to be­come learned in those affairs.

And therefore for the better furnishing of them with the true understanding of the said parts of this Statute, I have framed a Case thereupon, which doth give just occasion to treat fully of them all.

The third Case.

A. Gave the Office of a Ranger of a Forest, to which a Mannor is belonging to I. S. & Abnepti, and to the heirs, males and females, of their bodies in Franck mari­age, and dieth: B. and C. their legitimate son and daugh­ter, and D. their bastard daughter enter, and dieth in seisin, and E. her daughter enters: The Commissioners of Sewers at a Court make a Law, That a Goat shall be repaired, and assesse severally A. B. C. and E. to do it, upon surmise, that they all had benefit: B. and C. refuse to obey, for which B. is imprisoned, and C. is fined; A. and E. tender pleas of discharge, which are refused, and they are seve­rally amerced, and a Law made, that A. should be distrained, and for non-payment the distress to be sold, without alowance of Replevin, and the interest of E. should be also sold, because she hath nothing to be distrained by.

I conclude, the Commissioners of Sewers have done due Justice upon the Offenders in every part of this Law.

Argumentum Lectoris.

The passages of this Case are both at the Common Law and by this Statute; The Common Law is the means, but the Statute is the matter I must insist upon: But seeing the Statute Law can receive no due construction, but by the rules of the Common Law, I have therefore made a har­monial composition of them both in my Case, and I do distinguish and branch out my Case into these ensuing points.

• 1 Imprimis, Whether this Office may be intailed or not?
• 2 Secondly, Whether it be an ordinary Intail, or a Frank-mariage?
• 3 Thirdly, Whether the Bastard be inheritable to this Estate, or not?

• [Page 122]1 First, Whether the Commissioners have a Court, or only the strength of the Commission without a Court?
• 2 Secondly, Whether Commissioners of Sewers have power to imprison and to fine? if so, then whether they have well behaved themselves in this Case, or not?
• 3 Thirdly, Whether this Law doth admit of any pleas, and especially of pleas of discharge?
• 4 Fourthly, Whether the Law made touching the distress be well made, because it seemeth prima facie to oppose a main point of the Common Law, in denying of Reple­vins?
• 5 Fifthly and lastly, if the Law made for sale of Lands of Tenements in Tail be warranted by this Statute, or not?

These be the materials of this Case, wherein you may perceive by the beginning, what you are to expect in the sequel and conclusion of my argument.

These Points upon the Statute are of great consequence and importance, and tend much into the powers of these Laws: In the handling whereof, according to my wonted fashion, I intend to maintain the Affirmatives of my Case.

First Point.

I did not intend it a point of any importance in my Case, Whether Land might belong to an Office; for that in the 1 H. 7. fol. 28. in Sir Robert Crofts Case, it is re­solved it might: For there Land did belong to the Office 1 H. 7. of a Forester, and might belong to the Office of the Warden of the Fleet, and also to a Corody which was no Office, and these, as well as to a spiritual Office, Parson, Vicar, Prebend or such like; but whether or no these Lands might be parted from the office by alienation, I thought that an ar­gumentable point: in 6 H. 8. Dyer f. 2. Empsons case it is said, 6 H. 8. if the King create a Duke, & grant to him an anuity to main­tain his Dignity, that Annuity was so incident to his Dignity as it could not be severed therefrom; and so of Lands be­longing [Page 123] to a Parson, Vicar, Bishop or such like, because they were given to the maintenance of them in their places, and therefore if these were severed, they might be recontinu­ed again to their Successors.

And in the Case of Sir Henry Nevil in Plo. Com. an Office of a Parker was granted to two, and an Annuity for the exercise of it; and it is there resolved, that the Annuity might not be severed from the Office: and so it might be said in my Case, That the Mannor which belongs to the Office was at the first laid thereto, or given therewithal for the maintenance of the Officer in his place by the Founder, and so may not be severed therefrom without his consent. And touching the intailing of the Office of the Ranger of a Forest, it is held in Mancels Case in the Comment of Mr. Plowden, that the Office of a Bayliff or Receiver of the Rents of a Mannor may be intailed; So an use and a Copy­hold, because these concerned and depended upon Land. But the Office of the Master of the Hawks, or the Master­ship of the Horse could not be given in Tail within the Statute of West. 2. de donis conditionalibus, nor an Annuity which chargeth the person; Yet all these may be given or granted within these intailed limitations, but yet they are no intails within that Statute.

I am of opinion, That the Office of a Ranger of a Forest cannot of it self be given in Tail, but having a Mannor be­longing to it, make the question of more moment; For as the Office Dese is not intailable, so the Land per se may be intail­ed: But Land in our case is not the principal, but the accessary & accessorium sequitur suum principale; and therefore seeing the Land follows the Office, as the shadow doth the body, and passeth out of his own kinde by the ceremony belong­ing to the Office, and not by the ceremony by which Land is transferred and passed, I should therefore take it, that the Estate of the Land should be such as the Office of it self might bear, which could not be intailed; yet because in the said Case of the Forester, with Land belonging to it, is taken to be in Tail in 1 H. 7. aforesaid, with a remainder 1 H. 7. [Page 124] thereof over in Fee, I am therefore concluded to make any further question of it, and so I leave it as I found it, and do passe to the argument of the other points.

Second Point.

The second Common Law Point is, Whether this gift in my Case be a Frank-mariage or another intail; I have observed in Books that there be five things incident to a gift in Frank-mariage (viz.)

1 First, it must be to or with a Cosin within the four degrees.

2 Secondly, the word Frank-mariage must be literally expressed.

3 Thirdly, the Reversion must be left at the time of the gift in the donor; and then there be two other things fol­low as consequents.

4 Fourthly, acquital of payment of Rents and services.

5 And Fiftly, warranty to secure the Estate.

And the want of these or any of these in the creation doth destroy that Estate in the conception.

Here seems to be two Impediments in my Case to hinder this gift to take root as a Frank mariage; It is made abnepti, which is the Cosin in the fourth degree, and the last in those gifts, whereby the gift that way cannot have his full opera­tion, for that the first Heir of their bodies is out of the for­mer priviledges: But in regard I take it that a Frank mariage doth more respect his original creation In incepto then the descent of the priviledges to the Heirs In suo progressu, I take this to be no impediment to hinder this from being a gift in Frank mariage. But here the words in the gift preceding the words Frank mariage do differ much from it, for by the special limitation the Heirs Females shall inherit with the Heirs Males, Simul & Semel as Heirs in common; But in the Case of the Frank mariage Heirs Males shall first in­herit single, and for want of them then the Females.

I do agree the Law, that in cases where the special words of limitation may in construction be made to agree with the word, and limitation of Art contained in Frank mariage, [Page 125] the gift shall be taken a Frank mariage, as in the Case of 2H. 3. It. suff. Fitz. Mordanc. plac. 52. where Lands were given 2 H. 3. in Frank mariage to R. S. cum Alicia sorore le donor it a quod post mortem dictae Aliciae & puerorum suorum, the Land should re­vert to the donor; and this was adjudged a Gift in Frank mariage, and the words It a quod were holden of no validity; neither will the words of Reservandum Redendum Tenendum or Warrantizandum; though they vary from the nature of a Frank mariage, yet they shall not destroy the same as an Habendum may do, which is the word whose proper place is to create the Estate: and therefore if any thing come therein, which is repugnant thereunto, the same will alter the quality of the gift: And with this agreeth the Case in 45 Edward the 3. Title Tail 14 and 31. where Lands were given to I. S. in Frank mariage with B. the daugh­ter 45 E. 3. of the donor Habendum to them and their heirs, and this was held a Fee simple, and no Frank mariage. And the like Law is where Lands are granted in Frank mariage, the remainder in Fee to I. S. and his heirs; the Frank mariage is defeated by the opinion in Br. Cases and so in my Case, because there can be no reconciliation between the special words of limitation in my Case, and the word Frank mariage: I am therefore of opinion, that this gift is an Estate in Tail, according to the special limitation, and no Frank mariage.

Third Point.

Whether the Bastard shall inherit to have an Estate in Tail, is the third Common Law question; for I am clear of opinion, that a Bastard cannot inherit to a gift in Frank mariage, because adultery and fornication, which is the seed of every Bastard is opposite to mariage, and in breach of that powerful link and knot of Matrimony, which is an Ordinance derived from the Divine power of the Al­mighty: And therefore seeing mariage is the material con­sideration of such a gift, Bastardy the opposite can never (being out of the consideration) come within the priviledges to inherit this Estate.

[Page 126] So if I give Lands to I. and S. and to the heirs of their two bodies lawfully begotten, their Bastard cannot inhe­rit to this gift, because he is not heir of their two bodies lawfully begotten; But if the word Lawfully had been out of the limitation, then I see no reason but that a Bastard may inherit to an Estate in Tail, as to a Fee simple condi­tional, which he might have done at the Common Law, seeing an Estate Tail may be made before mariage, as expecting to be confirmed thereby; and so a Bastard born before mariage is by the consummation of a succeeding Mariage made capable to inherit to them, if his posses­sion continue without disturbance to his death: Yet in Plow. Com. fol. 57. in Winbish and Tailboys Case, it is said, That if there be a Bastard, Eigne and Mulier puisne, and the Bastard after the death of the Ancestor entreth into intailed Lands, and dyeth seized, this doth not binde the Mulier in case of Estates Tail, as it doth in an Estate of Fee simple: and vouch­eth for Authority in the point, 39 Ed. 3. plac. ultimo, where the Case is, That Lands were given in Tail to I. S. the Remain­der 39 Ed. 3. in Tail to C. and I. S. hath Issue by a woman a Bastard, and dyeth seized, and then the Bastard dyeth seized, having Issue, he in the Remainder may recover the Land against the Issue of the Bastard; affirming, That the continuance of possession in the Ba­stard shall not be prejudicial to him in Remainder: To which Opinion I do subscribe, because he in the Remainder is a stranger in blood, and so cannot be concluded as the Mulier shall be; for a Mulier indeed is like a graft drawn out of both the bloods of Father and Mother: so the Bastard is a slip which is derived from the same Stock, and had his being therefrom.

And for my own Opinion, considering the Statute of Westminster 2. de Donis doth accept of Gifts in Tail made before Mariage, upon the hope and expectation of a suc­ceeding Mariage to perfect the same, even so the Mariage succeeding to a Bastards birth gives him and his Issue a pri­viledge in these cases of descent, which is denied to other Bastards or meer Strangers. And I see no reason where­fore [Page 127] that maxime and principle of Law should be altered by the said Statute of West. 2. but because Mountagues Opinion in Mr. Plow. Com. sways the other way; I will therefore submit this Point to men of greater judgement then my own: So that if the Law fall out for the Bastard Issue, then she should have title to the half part belonging to the Fe­males, and to no part belonging to the heirs Males: And with this Conclusion I do here end my Common Law Points, and will now resort to the handling of my Sta­tute Points.

The Sewers are a Court of Iustice.

I Am desirous to attribute to this Law all the honor and dignity which may in any sort belong to it; and there­fore I am unwilling to forget any thing which may mate­rially tend to the upholding and maintaining thereof: wherein amongst the rest, and the chiefest of them all, it is, To prove the Commissioners of Sewers a Court of Justice: I know some Opinion hath been to the contrary, and held, That the Commissioners had only the power of a Com­mission, and not any Court; and I suppose much may be said to maintain that opinion,

1 First, because in expressis terminis there is no Court or­dained by this Statute, or by any other, and without words express in the point, they can have no Court.

2 Secondly, by presidents in the like case it hath been held no Court, as in the Case of the City of London, in Sir Ed­ward Cooks 8 Report, The King granted to the Major and Commonalty Plenum & integrum scrutinium gubernationem The Case of the City of London. & correctionem omnium & singularum misteriarum, and it was resolved, That they had no Court in this case, because no Court was granted to them by the Patent, as it is holden in Doctor Bonhams Case, fol. 119 in the same Report, wherein the principal Case there put sways the same ways; for there the Physitians had power to imprison, and to fine offendors, yet they had not any Court thereby.

[Page 128] And so if a Commission issue out of the Chancery to examine matters in a Suit there depending, and to Oyer and Terminer the same, yet hereby these Commissioners have not any Court; for in that case the Commission is derived out of the proper power of the Chancery, which is the Court, for that cause eo instante when it is in Commission: And one Cause cannot uno eodem (que) tempore depend in several Courts; neither have the Commissioners upon the Statutes of Ban­krupts and charitable uses any Courts: nor the Commissio­ners in the Case of 1 & 2 Eliz. Dier fol. 175. which had power to hear and determine the Office of the Exigenter, had not any Court, but only the power of a Commission: For in truth these are all of them rather Ministerial then Judicial Commissions, and so a Court is not proper to them.

Yet I am of Opinion, That the Commissioners of Sewers have an eminent Court of Record: It is true, that Courts had their beginnings in three sorts;

1 First, by Prescription.

2 Secondly, by Charter-grant from the Crown. And,

3 Thirdly, by Act of Parliament.

1. The Courts, Hundred and Leet began by custom, and so did the eminent Courts of Westminster-Hall.

2. Courts in Corporations most of them took their be­ginnings by Charters. And,

3. The Courts of first Fruits and Tenths, and the Court of Wards and Liveries were erected by Act of Parliament, the one in 32, the other in 33 Hen. 8. But to bring the que­stion nearer home to our Statute of Sewers, which is but additamentum legibus antiquis Sewerarum, for they have been used from the beginning of Laws, though perhaps not known by that name: And yet before the 6 H. 6. they were known by that name, as by the perusal of that Statute may be collected: And therefore for the causes and reasons here­after ensuing, I hold the same to be a Court.

1 First, for that the Statute of 12 Ed. 4. cap. 7. and our very Statute of 23 H. 8. calls the Commissioners of Sewers 12 Ed. 4. [Page 129] Justices, and one cannot properly be a Justice or a Judge but in a Court.

2 Secondly, here be legal Proceedings and Process; for this Statute saith, That the Commissioners may make and direct all Writs, Precepts, Warrants, and other Commandments, to all She­riffs, Bailiffs, and other Ministers, &c. And the Statute of 1 H. 4. cap. 12. hath these words in it (That he that thinks 1 H. 4. himself grieved may pursue and he shall have right) and where there be legal proceedings, and where parties grieved may come in and have remedies for the wrongs and injuries done to them, there is properly a Court of Justice to have them in: But in Doctor Bonhams Case the Physitians had no legal proceedings, and therefore parties grieved could have no remedy, which was the reason they had not a Court.

3 And thirdly, the chief reason wherefore I take it that Commissioners of Sewers have a Court, is, Because the Commission of Sewers is a member of the ancient and re­nowned Court of Oyer and Terminer, which was and is a Court of great esteem, power and authority; and so it was needless to erect a new Court in this case, as it was needful to erect and found the Court of Wards and first Fruits, the first would else have remained in the Chancery, to the which primarily it did belong, and the other was a new reve­nue, and wanted a Court to direct or dispose of them.

4 Fourthly, the Commissioners have a Clerk proper to themselves to Register their Laws.

5 Fifthly, the Commissioners have power to make Or­ders and Decrees, which are Judgements in effect, and some of them cannot be reversed but by Act of Parlia­ment.

6 And lastly, Writs of Error have been brought to reverse Judgement given in that Court.

For all which causes I do conclude, That the Commissi­oners of Sewers have a Court of Record, although it be not holden in aliquo loco certo: So was the Kings Bench a Court of more Eminency then this; But ubicunque fueri­mus in Angliae, and for express Authority in the point of [Page 130] Gregories Case in the 6 Report of Cook chief Justice, that the Sewers is a Court of Record.

Imprisonment imposed by the Commissioners of Sewers.

IT is a point of high consequence, whether Com­missioners of Sewers have power by these Laws to Im­prison the body of a man for any thing touching the same, for that Imprisonment of the body seemeth to sway some­what against the grand Charter of England, and against the liberty of a free-born Subject; and it is said in Bonhams case, 28 H. 8. in Dyer, that liberty is a thing which the Law much favoreth: and I finde in our Books of Law, That the Judges have been very careful and curious, in not extending words contained in Charters to the Imprisonment of mens bodies, unless they were express in the point: And therefore in Clerks case in Sir Ed. Cooks 5 Report, fol. 64. Clarks Case. The case is, That the Term was to be kept at St. Albans, and the Major there and his brethren did assess every towns­man towards erecting and building of the Courts of Justice, and made an Order, That he which should refuse to assist and pay should be imprisoned; and one being Arrested and impri­soned, brought his Action of false imprisonment against the Major, who pleaded in effect, That they were incorporate by King Edward 6. and had power granted to them in their Major of St. Albans. Charters to make Ordinances, by reason whereof they made the said Order, and so justified the imprisonment: But it was adjudged against the Major, for that by the said Char­ter they had not any power to make an Ordinance to impri­son a mans body, for that were against the grand Charter in Magna Charta, cap. 29. Quod nullus liber homo imprisonetur Magna Charta. nisi per legem terrae: But by that Book they might have in­flicted a penalty, and have distrained, or brought an Action of Debt for it. In Doctor Bonhams case in the 8. Report, King Hen. 8. incorporated the Physitians of London, and gave them power by Charter to examine the Imperites, & to finde [Page 131] out the defects Et pro delictis suis in non bene exequendo faci­endo & utendo illos per punitionem eorum delinquentium per fines amerciamentum & imprisonomentum corporum suorum: So hereby it appears, that by the Kings Letters Patents they had power to imprison the Body; but I finde their Charters confirmed by Act of Parliament: Yet in 2 Eliz. Dier fol. 175. the Case is, That the Queen did award a Commission di­rected to certain Commissioners, to Hear and Determine the con­troversies betwixt Scrogs and Colshil touching the Office of the Exigenter, and that if Scrogs should refuse to obey to make answer before them, they should commit him to Prison; but the validity of this last Commission I much doubt of. I am of Opinion, That the Commissioners of Bankrupts and cha­ritable uses, have no power to commit any man; but if any abuse or misdemeanor be committed in contempt or dero­gation of their Authorities, they may make Certificate thereof into the Chancery, and refer the punishment thereof to the will and discretion of the Lord Chancelor or Lord Keeper for the time being.

In Godfreys Case in the 11 Report, there is a discourse what Godfreys Case. Courts have power to Imprison, and which not, and there it is said, Some Courts may Fine, but not Imprison, as the Courts Leet and Sheriff turn; some others could neither Fine nor Imprison, as Courts Baron and County Courts; and some could neither Fine, Imprison nor Amerce, as Ec­clesiastical Courts; And some may Imprison and not Fine, as chief Constables at their Petty Sessions for an affray done in disturbance of them; And other Courts there were which might Fine, Imprison and Amerce, as the eminent Courts of Westminster.

So that Imprisonment is not incident to every Court, nor to every offence; Yet I am of opinion that the Com­missioners of Sewers may Imprison the body, for it is not only a Court of Record, but is authorized by Act of Par­liament; and I suppose that there be words in the Com­mission and Statute which will bear this construction, which are as follow, viz. And all such as ye shall finde negligent, gain­saying [Page 132] or rebelling in the works, reparation or reformation of the premises, or negligent in the due execution of the Commissioners, That ye Compel them by Distress, Fines and Amerciaments, and by other Punishments, ways or means, &c. Which words are strong, and large enough to authorize the Commissioners of Sewers upon just Cause to Imprison the body; But here they are to be careful, and not to think that they may Im­prison, Fine or Amerce in any case, because the words be generally put together: But this construction must be there­of made, That they may Imprison where Imprisonment is due, and Fine in cases Fineable, and Amerce in cases Amerciable, and Distrain where a Distress properly lyeth by the Rules of Law; and they may not Imprison, where by the Laws Imprisonment is not due, but every one of the said punnishments is to be used in its proper kinde; for these words promiscuously put together, must be ordered by a just and legal construction, according to the Rules of Law and Reason.

And I have known the words of a Statute generally and promiscuously put together, have been marshalled accord­ing to their distributive operations, as the Statute of 1 Rich. 3. which is, That all Feoffments, Gifts, Grants, Releases and Confirmations of Lands made by Cestui que use should be good; Yet though these words were generally put together, not­withstanding the wise and discreet Sages and Expositors of our Laws have so Marshalled the words of this Statute, that they made construction thereof according to the Rules and reason of the Laws, That is, That Cestui que use in Possession might make a Feoffment; and that Cestui que use in Reversion or Remainder might grant the Land, and Cestui que use of a discontinued Estate might release or con­firm: and yet the words of this Statute were general, howsoever Reason must be the Expositor, that every thing be done in due form of Law, and not in preposterous maner.

And these matters being thus passed over, I shall endea­vor my self to declare in what cases Commissioners of Sewers may Imprison, Fine and Amerce, and where not.

Imprisonment, Fine and Amerciament.
Fines.

IF one give evil Language to Commissioners in Court, or disturb the peace there, or hinder the business of the Court in a Turbulent fashion, he may be by them Fined or committed to Prison, or both, at the discretion of the Commissioners; for by 34 H. 6. fol. 24. in every case when a man is fined, he may be imprisoned; and by 19 H. 6. fol. 67 in every case where one is Imprisoned he may be Fined; and 34 H. 6. our Law in express words gives the Commissioners power 19 H. 6. to set fines: and then by the opinion of the said Books ex consequenti they may Imprison.

If one oppose against a Law of Sewers not legally in questioning the same, but refractory contemning there­of, or by disswading persons assessed not to pay such, or not to obey the Law, I am of opinion that a person is both Fine­able and Imprisonable; and if this be done in facie Curiae, it aggravates the contempt; and this is the Rebelling which this Statute speaketh of.

If one do refuse to obey the Decree, Rule, Order of the Court, especially if it be done in affront of the Commissio­ners, when they be in execution of their Commission, This is a contempt, and he is to be imprisoned for such his diso­bedience, and this agreeth with 37 H. 6. fol. 14.

In Termino Pasche 12 Jac. in the Kings Bench, the Case 37. H. 6. there was in debate between Hitley and Carier, where cer­tain 12 Jac. Commissioners of Sewers in the counties of Huntington and Northampton made a Law, That certain Townships in those counties were assessed to a work of Sewers, and one town was rated to Five pounds; and because the same was not paid, the Commissioners caused a Warrant to be di­rected to the said Carier, to distrain for it, and he distrained the cattel of Hetley one of the Inhabitants, and Hetley [Page 134] brought an Action of Trespass in the Kings Bench against Carier and arrested him thereupon, and upon complaint made to Sir Anthony Mildmay, and Sir John Boyer Knights, and other the Commissioners of Sewers, they caused Hetley to be attached by their Warrant, and com­mitted him till he should release his Actions brought against Carier, and until he should be delivered out of the Prison by Warrant to be granted by them: But afterwards Hetley pro­cured a Habeas corpus cum causa out of the Kings Bench, and was removed, where all the said matter appeared; and there­upon Attachments were awarded against the said Com­missioners; and Sir John Boyer appearing, was by Cook chief Justice, Crook, Dodderidg and Houghton, Justices, com­mitted to the Kings Bench Prison, and was fined Two hun­dred pounds; but was after delivered Ex favore Regis sed non ex Rigore Legis.

And in my opinion, The said Commissioners in this case in making a Warrant to attache Hetley, and in imprisoning of him for the said causes did exceedingly erre, and the rather, because they took upon them to overrule the Justices of the Kings Bench, being of a higher and greater autho­rity then they were of; But this is no president to impeach the power of the Commissioners of Sewers for committing persons offending their authorities to Prison, if their pro­ceedings therein be consonant to the Laws of this Realm; but they were punished in this Case, not for executing their power, but for exceeding their limits, and the bounds of their Commission.

If a Collector, or Expenditor, or other Officer of Sewers have been negligent in the execution of his Office and place, he his fineable therefore, though his offence be but neglect, because he was an Officer, and was also sworn to execute the same duly.

But I take it, a neglect in another ordinary person is not to be punished.

And if one be rated to pay towards repairs, and he neg­lect to pay the same at the days and times appointed, he [Page 135] is not fineable therefore, but is to be Amerced in this Case.

If a Collector or Officer of Sewers do distrain a man, or do any other act contrary to an Inhibition of Sewers to him di­rected by the Commissioners of Sewers, he may be fined and imprisoned & simile factum fuit in 7 H. 4. fol. 33. 7 H. 4.

If a Purpresture be committed in the Kings streams, as in fixing Piles or Stakes therein, or in stopping, straitning or diverting the course of the waters from their ancient cha­nels or courses, these offences being presented, the offen­ders are fineable therefore, if in the Presentment they be found to be done vi & armis, or be presented by the name of Purprestures; for by 19 H. 6. fol. 8. if the offence be done 19 H. 6. with force, and so presented, then the offender is fineable, Beechers Case but otherwise it is if the offence be not found, but omitted, for then an Amerciament is onely due. And it is said in Dier 7 Eliz. fol. 240. That for a Purpresture one is fineable, and a Purpresture may be committed in aquis Regiis as well 1 Eliz. fol. 240. as in viis Regiis, by the opinion of Glanvil: And in Keleways Report, fol. 141.

And a Purpresture is taken to be an offence done to the King imediately, or to His possessions; But if the like of­fence Purpresture. be done to a Subject or to his Lands, it is termed a Nusans. Nusans.

The Abbot of Mellefont was fined for erecting a Were in the royal River of Boyne in Ireland, which is expressed in the Irish Reports in the Case of the Royal Pischary of the Ban in Ireland, and this was a Purpresture.

If one do refuse to accept an Office of Sewers, being thereto duly elected by the Commissioners, he is fineable therefore, for in Greslies Case 8. Report, One being elected Greslies Case. and chosen Constable, did refuse to take the Office, and he was fined.

And if an Officer do misdemean himself in his Office he is fineable, for in 10 H. 6. fol. 6. A Tythingman did refuse 10. H. 6. to make Presentment being thereto required, and he was fined therefore. So in case of the Sewers, if one of the Jury, [Page 136] or which is a Surveyor, refuse to make Presentment when he is required by the Commissioners, he is to be fined. So if a Juror depart after he is sworn on the Jury, or be­fore he be sworn, after his appearance be recorded, he is to be fined; And if an Expenditor or Collector, Officers of Sew­ers, be required by the Court to accompt for the moneys received and laid out by them, and they refuse, they may be punished by fines.

And if the Sheriff upon Writ or Warrant directed to him to return a Jury before the Commissioners, and he make no return thereof, nor doth not attend when he is required, he is to be fined by the Commissioners.

Also an Officer of this Court is fineable for falsities done by him in his Office, for these are a violation of his Oath, and is a breach of that trust which the Court reposed in him at his election and entrance into his Office, and therefore the Offence is greater in him then in another man.

I have learned in Books that a Fine hath these qualities with it:

1 First, the party in that case is imprisonable.

2 Secondly, the cause for which it is imposed is not traver­sable, being meerly the Act of the Court, but if it be im­posed upon a presentment found by Jury, then the cause is traversable.

3 Thirdly, all fines ought to be assessed, abated or increased in Plena curia, and not elswhere.

Fourthly, every Fine ought to be reasonable.

4 And therefore I shall put the Commissioners of Sewers in minde as the Statute of 34 Ed. 3. cap 1. did the Justices of Peace, that those Fines that they should impose for any 34 Ed. 3. offence coming before them should be reasonable, having respect to the quantity and quallity of the offence, for Ex­cessus in re qualibit jure reprobatur communi.

But because in Godfries Case it is said, that Commitment of the body to Prison is incident to a Fine, as by a Gapias pro Fine also may be collected; Yet I hold it questionable, whether the Fine shall precede the commitment, or the commitment the [Page 137] Fine. But for my own opinion, I hold that this lyeth much in the discretion of the Justices, and I finde cases and pre­sidents both ways; for in 41 Assiz. plac. 12. an Officer was imprisoned quous (que) finem fecerit, where the Imprison­ment preceded the fine: and with this agreeth 7 H. 6. fol. 25. 7 H. 6. and in 33 H. 6. fol. 21. one was fined, and after Imprisoned for it, and there the fine did precede the Imprisonment. 33 H. 6.

But upon all these I take the Law to be, that if one be fined, and this Fine may be levied by the Justices, as Ju­stices of the Peace may do (but not Justices of Sewers) there the Imprisonment may be quous (que) finem fecit, because the Fine is leviable by them: But the Law is not so of Commissioners of Sewers, because they have no power to Levy but to extreat the Fines into the Kings Exchequer. Howsoever one before them may be both imprisoned and fined Diversis tamen respectibus, The one for the wrong done, the other for the contempt or disobedience to the Court; As for example, if one refuse to be a Collector, he is finable to the King, because hereby the Commonweal is without an Officer; and he may also be imprisoned for disobeying the Justices command: and yet in my opinion it lieth much, if not altogether in the discretion of the Commissioners to impose or inflict both the said punishments, or one of them, at their pleasures, being not therein precisely limited by this Statute.

Amerciaments.

AMerciaments be not so grievous as Fines be, for they be derived of the word Miserecordia which signifieth mode­ration & mercy; and to that end was the Writ in the Register Moderata miserecordia devised, where one is outragiously amer­eed he might be relieved by suing forth that writ, which writ and the Law in that case is grounded upon the grand Char­ter Magna Charta. cap 14. Quod nullus liber homo amercietur nisi secundum quan­titatem delicti: And that none of the said Amerciaments be imposed Sed per Juramentum legalium hominum de viceneto.

Glanvil in his Book saith, Est autem miserecordia Domini Glauvil. [Page 138] Regis qua quis per Juramentum legalium hominum de viceneto eatenus amerciand' est: And Fleta lib. 1. cap. 48. saith, Quod Fleta. liber home non amercietur nisi per sacramentum parium suorum. And with these agreeth Bracton lib. 3. cap. 1. and Fitz. Nat. bre. fol. 72. and if the Steward set an Amerciament upon a Bracton. man on his own head it is void.

By which authorities it plainly appeareth, that Amercia­ments are to be imposed by a Jury, or by the Oaths of good and lawful men; and therefore I have heretofore much marvelled, when sometimes I have seen Justices of Sewers take upon them to set down Amerciaments, without assist­ance of the Jury, which act of theirs was directly against the said great Charter of England, and contrary to the said authorities of Law.

So that there is a difference between the imposing of Fines which are done by the Justices, and Amerciaments which be by Jury, or otherwise, per sacramentum parium: So is there great diversity between the offences of the one kinde, and the other; For if one do suffer a Wall, Bank, or other work of Sewers to fall into decay for want of re­pairing, which he was bound to maintain by Frontage, Tenure, Custom or Covenant, he is in this case to be Amer­ced therefore: And so if one be bound by any of the said tyes to repair a Bridge, Calcey, Goat, Getty, Sluce, or to Cleanse a River, if the same by his neglect be left undone or unrepaired, he is therefore amerceable. So if one be presented for casting Dirt, Sand, Ballast, or other anoy­ance into the Rivers or Streams, or for digging down the Banks, or for pulling down the Walls thereof; if the pre­sentment do not express the same to be done with force, or therein be wanting the word Purpresture, the party pre­sented is then but amerceable therefore: So when one is tyed to cleanse the Rivers for passage of Boats and Ballan­gers, or for the draining of the waters, if he suffer Sand­beds to lye and choak up the Channel, he is Amerceable, and not Fineable therefore; for no permission, sufferance, neglect or Nonfeasans can be found to be by force, because [Page 139] they consist not in Agendo, & sic in similibus casibus; Yet some cases following fall out of these rules pro ut sequuntur. As if the violence of waters was so great, either by breaking in of the sea in an extraordinary maner, or by a sudden flood or inundation of fresh waters after a Rain, that thereby the defences are broken down, or caused Sand­beds or other Nusances to be, these being presented, no man is Amerceable therefore, because the same could not have been prevented by policy, nor resisted by strength.

In 42 lib. Assiz. plac. 15. a Presentment was, That I. S. 42 lib. Ass. had suffered trees to grow into the water, and lay in the Stream, by reason whereof ships were hindred in their passage; and there was a Writ awarded directed to the Sheriff to remove the Nusans: but Knivet Justice said there, That I. S. should not be Amer­ced, because the Nusans was no act of his, but the Trees grew so naturally of themselves.

But perhaps it will be objected to me, Can no Amercia­ments be set but by a Jury, or by the Oathes of twelve men?

Yes, I am opinion it may be done by the presentment of the Surveyors of the Sewers, for that is per Sacramentum pa­rium as the Law appoints; and in a Nonsuit we see daily that in such case the Plaintiff is to be amerced, and this Amercia­ment shall be assessed by the Coroners of the county, as ap­pears in Greisleys case; and so the words of the Statute and of the Law may herein be satisfied.

Now I hope I have fully instructed the Commissioners, wherein they may learn whom to Imprison, when to Fine, and how to Amerce in a legal and orderly sort, and accor­ding to the ancient and approved Rules of Law, and of the grand Charter; for in those things they are to direct their discretions by the said Rules, and they are to be guided thereby, and are not to proceed therein according to their own wills.

And herein I shall conclude the second point of this part of the Law, that is, That Commissioners of Sewers have power to Imprison, to Fine, and to Amerce; And [Page 140] that B. for refusing to obey their Order was justly imprison­ed, and C. was as justly fined: And for the reasons and causes aforesaid, the Commissioners in their discretions, though the offences of both were alike, yet they had power to imprison the one and to fine the other. And now I do intend to proceed to the fourth point of my Case, and the third point I intend to handle in a more convenient place.

Distress.

THe point of Distress in my Case is grounded upon these 4 Point. words of this Law, viz. And all those persons and every of them to tax, assess, distrain and punish, as well within the metes, limits and bounds of old time accustomed, or otherwise, or els­where within the Realm of England.

In what place a Distress is to be taken.

NOw touching the place where these distresses are to be taken, comes next into our consideration, wherein the quality of the matter distrained for, and the power from whence the distresses are derived, are to be consider­ed of.

And therefore if a Lord do distrain his Tenant Ratione tenurae, for to repair a Wall, Bank or other defence, this Distress must be taken on the Ground holden by this Te­nure and not elsewhere, for these grounds are chargeable therewithal, as the opinion of Iustice Sylliard is 21 Ed. 4. fol. 38. But, not as that Case is, but in point of Tenure; 21 Ed. 4. for there the Case was, That a presentment was found in hec verba videlicet Iuratores present' quod est communis Regia via in Parochia Sancti Martini in Campis in Com' Middlesex inter Hospitia Epis' Dunelmensis & Epis' Norwich totalitur superundat' aquis & quod tam domini spirituales quam temporales & Justicia­rii domini Regis & Servientes ad legem & omnes alii Legis mi­nistri & omnes alii per viam illam versus Westmonaster' itine­rantes pro legibus domini Regis ibidem ministrandis & observan­dis sepius impediuntur per quod via illa totalliter superinundata existit excessu emanationis aquae pluvialis ibidem remanent' quam quidem aquam Episcopus Norwicensis rationae tenurae suae ibidem evacuaere debuit & quod ipse & omnes predecessores sui ratione Tenurae suae ibidem evacuaere debent: And in this case I take it the Land was charged, not as in respect the Bishop of Nor­wich did hold the same of some Lord by the Tenure, to repair the Sewer to avoid the water; but his Land stood charged with the same as a charge imposed thereon by Cu­stom or Prescription, as by the president it self appeareth; for if the Bishop of Norwich had been by the Tenure [Page 143] of his house or lands bound to avoid the waters, there needed no Prescription to have been alleaged.

Also in 5 H. 7. fol. 3. there is a like Presentment made 5 H. 7. against an Abbot, Quod ipse & predecessores sui, ought to repair a gutter ratione tenurae terrar' suar'; but because in that case the Presentment did not set forth where those Lands lay which were charged, the Presentment for that cause was holden to be void: So that there is a great difference between a Tenure charge, and a charge imposed upon Land by Pre­scription; For in the case where a Tenant holdeth his Land to repair a Bridge, Wall or Bank of the Lord of the Fee, The Lord in this case may distrain the Tenant of Common right by the Common Laws of England: But where ones Land is charged by Prescription and Custom, there is no remedy to force and compel the Tenant to do the repairs but by Presentment, and upon a Presentment process may be awarded against him to distrain him to make the repairs.

And if upon a Presentment made by the Laws of Sewers, I. S. is charged to repair a Sewer, and a Distringas ad repa­randum be awarded against him, the Sheriff may distrain the party in any place within the power of the Commission of Sewers. But this being a judicial Distress which issueth out of the Rolls, the Justices are tied to the limits and bounds of the Commission; Yet in 19 H. 6. fol. 7. the 19 H. 6. Case was, That the Admiral of England hath jurisdiction in causes arising onely on the Seas, and he hath no jurisdiction or power to meddle with any thing done upon the Land: Yet upon a Presentment made in the Admiral Court one was Present­ed and Amerced, and a Distress for this Amerciament was taken on the Land, and exception was thereto taken, that the Distress was taken out of the jurisdiction of that Court: But there Newton chief Justice and the rest of the Iustices said, That the power of the Admiral to hold plea was restrained by Statute to matters arising on the Seas, but Executions were not so.

And I have further observed by the Book of 8. R. 2. Fitz­her. 8. R. 2. Avoury 253. that where no place is certainly prescribed [Page 144] to distrain in, that in such a case the Distress may be taken in any place within the power and jurisdiction of the Court, out of which the Writ or Warrant of Distress doth issue: As if one be amerced in a Court Leet or in a Court Baron, he may be distrained for these Amerciaments in any place within the jurisdiction of these Courts; and for an Amercia­ment set and imposed in the Sheriffs Turn a Distress may be taken for it in any place of the county; for so far the power of that Court doth extend it self.

But in the case of a sess, rate or tax imposed by the Com­missioners of Sewers, a Distress for any of those may be taken in any place within the Realm of England; for in this case the Distress is meerly grounded upon the Statute, and is bounded by the same limits, which is as large as the Realm of England: And hereupon by this construction made in this legal maner, all the words in the said clause of this Statute have their full operation.

And although in Rooks case the Distress was there taken on the ground charged, yet that doth not prove but that a Distress might have been taken in any other place; for I ve­rily take it, that the place where the distress was taken, in that case was not intended any material point, though in my suc­ceeding argument for another purpose I shall make it one. So that my opinion touching distresses to be taken in cases of Sewers, appears to stand upon these three distinctions.

1 First, that the Lord of whom the grounds be holden to make the repairs, must distrain on the the grounds so holden, and not elswhere.

2 Secondly, that upon a Distringas ad reparandum or Amo­vendum upon a Presentment, which issueth out of the Rolls of that Court, and is a judicial process, a Distress must thereupon be taken within the bounds of the Commission of Sewers Ex congruitate.

3 Thirdly, a Distress for a rate, or sesse, or tax assessed and imposed by the Commissioners of Sewers may be taken in any part or place within the Realm of England; for this is a Distress grounded upon the Statute, and is as large as the [Page 145] extent thereof. And so the difference appears where the Distress is guided by the Commission, and where by the Statute.

Whose goods may be distrained.

IT comes now in turn to be handled, whose goods may be distrained and taken within these Laws; For the words of Distress be put so generally in this Statute, that they must receive their exposition by the Rules of the Common Law, in regard these Laws do give no special direction therein; and therefore the Distress mentioned in Rooks case may in this place be questioned: For there Carter was assessed, but the goods of Rooks were distrained and taken for the said Assess, and no challenge or exception was there made of it; and no marvel, for it was specially found that the goods were taken and distrained on the grounds char­ged, for otherwise that Distress had been tortious; wherein I take this diversity, That where grounds are chargeable to repairs of defences, and a Sess is thereon imposed by the Commissioners of Sewers, the goods of a Stranger may be taken therefore on the grounds Sessed; and this is war­ranted by Rooks Case. But Rooks being a Stranger, his goods could not in any sort have been taken for the Sess im­posed upon Carter, but on the grounds charged: and the like Law for Rents and Services issuing out of Lands, the goods of a Stranger Levant and Couchant on the grounds so holden may be distrained for Rents and Services, by 7 H. 7. 2. and 11 H. 7. 4. 7 H. 7. 11 H. 7.

But put the case a little further, that in the Sessions Court of the Sewers, A. B. is amerced for Non-payment of his Sesse towards the repairs of a work of Sewers; and in this case I am of opinion, that the proper goods of A. B. are to be distrained for this Amerciament, and not the goods of a stranger going on his grounds charged to the said assess, because this Amerciament is a collateral charge, which falls on the person of the offendor who was to pay the [Page 146] Assels, and doth not in any sort charge the grounds: and this opinion hath warrant from the Case in 41 Ed. 3. fol. 26. Br. Leet 4. for there A. B. was amerced in a 41 Ed. 3. Court of Leet, for receiving and keeping one in his house which was not sworn to the King; in which Case it was holden, that no goods could be distrained for this Amercia­ment, but only the proper goods of the party amerced, although the goods of others were Levant and Couchant on his ground: And further in proof of my said opinion, the Case of the Lord Cromwel in 15 El. in Dier, fol. 322. doth come fully thereto, which is, That a Replevin in an Avowry was made for a pain and forfeiture of Ten shil­lings, due for the breach of a By-law, Contra ordinem Curiae, and alleaged to make By-laws within the Manor by the Custom thereof: In which Case it is apparant, that the proper goods of the party are to be distrained therefore, and not the goods of a Stranger Levant and Couchant on the grounds.

And in the 47 Ed. 3. fol. 12. the Prior of Tindals Case, 47 Ed. 3. where the Prior was amerced, and another mans goods were taken and distrained on the grounds of the Prior for the said Amerciament, and the Distress was not well taken; and so my opinion may be conceived, that for an assess the goods of a Stranger may be distrained on the grounds charged, but may not there be taken for a Fine or Amer­ciament, which be collateral duties, and attends upon the person and do not charge the Soil.

This discourse being thus ended, I shall now enter into a matter of greater moment; and yet because these matters be frequent in businesses of the Sewers, that which I shall here pretermit I will in some other place more fully dis­course of.

Goods sold.

THe further matter of this point will rest upon this, whe­ther goods distrained and taken for a Sess and Rate of Sewers may be sold, or not; which point hath been oftner practised then the Law truly decided: But before I shall touch upon the main, I will make an Ingresse to treat of such matters whereby the property of a mans goods may be altered without his consent.

1 And first, at the Common Law, if a mans goods be wrecked, waived or taken as strays, or sold in Market, overt the property may be altered.

2 Secondly, by Custom, as in London upon a Foraign at­tachment goods may be attached and sold to another: and in 10 El. Dyer, fol. 279. B. a Custom is alleaged to be in York of Foraign goods there bought and sold are seizeable by the Corporation, and so in case of a Heriot Custom.

3 Thirdly, But the King by his Charter cannot take the properties of my goods from me, as in the Case of London Cooks Rep. the Case of Austen and Waltham, where King Henry the 6. granted to the Corporation of Dyers there by Charter, That if upon search they should finde any Clothes died with Logwood, that they seized them as forfeit; but resolved, that this Grant was in that point void.

4 Fourthly, by a By-law in a Court Leet or Baron, the pro­perty of my goods cannot be taken from me.

5 And fifthly, by a Judgement against one at the Com­mon Law, although a mans person nor his Lands were lyable thereto, yet his goods were.

These five grounds being first taken, I shall now ex­amine the particular of our Case in question touching the Law made by the Commissioners for sale of goods; and against this sale many things may be alleaged.

1 First, this Statute I read on gives a Distresse, and a Di­stresse is but a gage or pledge, and cannot be sold; for if a Lord distrain his Tenants Cattel for Rent and Services, [Page 148] he cannot sell the Distresse: And although in 10 & 11 El. Dier, fol. 280. a return irreplevisable was awarded to the Lord or Avowant, yet he cannot sell this Distresse, nor work them by the opinion of that Book.

2 Secondly, the Statute of 7 Jac. cap. 20. Rastal Marshes and Fens doth enact, that a Commission in the nature of this of ours should be directed to the Bishop of Norwich, and others for the Recovery of Fen-grounds; where for an assess imposed, and for Fines and Amerciaments, ex­presse power is given by that Statute to sell the parties goods which doth refuse to pay, Ergo, without such an expresse clause a sale of goods could not have been lawful.

And by the Statute of 1 and 3 Jac. the forfeitures of Ale­housekeepers 1 & 3 Jac. may be levied by sale of their goods, by the ex­presse letter of these Laws: and so it may be inferred, that our Statute wanting such an express clause to authorize a sale, therefore no sale can be.

But much may be said to the contrary; for although in cases of sale the Laws be tender, yet it is plain, that both our Common Law, Customs and Courts of Justice daily use them, and are frequent in those sales: And we know that a Distresse is properly a pledge to be detained till satis­faction be made, and then to be restored, and is not to be sold: Yet in 3 H. 7. fol. 4. a Distresse taken for an Amer­ciament 3. H. 7. in a Leet or Law-day may be sold as well in the case where the Subject hath by Charter or Prescription the profits of the said Courts, as where the King himself hath them; and all the reason which that Book yieldeth for it, is, because they be the Kings Courts: But a Distress taken for an Americament in a Court Baron cannot be sold, and in 22 Assiz. plac. 72. it is said, That if one recover a Debt in a Court Baron, the goods of the Debtor could not be sold therefore: 22 Assiz. Yet I have seen always in practise, that for Debts and Damages recovered in the County Courts, the goods of the Debtors have and be usually sold for them by Levarifacias; and in my opinion this is used per totam Angliam: and a sale in such a case in a Court Baron by Custom is good; and [Page 149] with this agreeth the Book of 7 H. 4. fol. 27. and 21 H. 7. fo. 40. in a Leet Court one prescribed and alleaged a Custom to 7 H. 4. 21 H. 7. have of every one which made an affray within his Liberty, a certain sum of money, and prescribed also to distrain for it, and to sell the Distresse: and with this agreeth 11 H. 4. 14. and 11 H. 4. fol. 2. A Distresse taken for the Knights Fees of the Parliament was sold. Therefore now let us see and examine well by what authority our Officers of Sewers may sell the Distresses taken. The words in our Statute which are most powerful in this point, be these (viz.) To depute and assign diligent, faithful and true Keepers, Bailiffs, Survey­ors, Collectors, Expenditors, and other Officers for the safety, conservation, reparation, and making, repairing, reforming and amending of the Premises and every of them, and to hear the ac­compt of the Collectors and other Ministers, of and for the receipt and laying out of the money that shall be levied and paid in and about the same: Here is the word (Levy) used, and money levied is properly upon a Sale, Execution or Forfeiture; And the words of our Statute go furthet (viz.) And to distrain, or otherwise to punish the debtors and distrainers of the same by Fines, Amerciaments, Pains, or other like means after their good discretious; and no likelier means to these is there any, then to make sale of the debtors goods for non-payment of his sesse, and it is consonant to other Laws: also in an­other part of this Statute are used these words, And the Clerk by the Commissioners to be assigned to have Two shillings per diem of the Rates, Taxes, Lots and Waives as shall be as­sessed or lost by authority of the said Commission, to be levied or paid by their discretions: And so it seemeth by the very ex­presse letter of this Law, the Taxes, Sesses and Rates may be levied by the discretion of the Commissioners, which if they please may be by sale of the offendors goods: And in many parts of this Starute, the Justices of Sewers have power to make Laws, Ordinances and Decrees, which being done according to reason, shall be held for firm and inviolable: And therefore upon just cause in my opinion, the Commissioners may make a Law or Ordinance for the sale [Page 150] of goods in furtherance of this service; and this be­ing a Law which tendeth so much to the service of the Commonwealth, and is so profitable and commodious for the same, it is therefore good reason to extend the same, and the exposition thereof, as far as the letter and intent of the letter shall reach; which may be as far as shall stand with reason, and rules of other Laws, Statutes, Customs and Usages of other Courts which have power in sale of goods in causes of this nature, is not altogether without president: For in the Charter of Romney Marsh, pag. 36 & 37. Ch. Romney Marsh. It is said in these words in a debate between Hamo and God­frey, Et predictus Hamo concessit prose & aliis quod computabit cor' vigint' quatuor Jurat' elect' de patria super districtionibus & averiis capt' predicti Godfredi pro predict' Walliis & water­gangiis repar' ab initio istius placiti us (que) nunc &c. & districti­ones illas secundum quantitatem portionis sibi contingent interim pro predict' Walliis & watergangiis reparandum sicut predict' est per predict' districtiones quod idem Hamo & alii satisfacient in omnibus quod injunctum fuerit per predicti comput' inter eos de surplusagio recepto de averiis venditis predict' Godfredi occasione praedict'. Hereby it is manifest, that Hamo the Bailiff sold the cattel of Godfrey to make the repairs of the Walls and the Waterganges; and our Statute gives power to the Com­missioners of Sewers to do after the customs of Romney Marsh, which by this president formerly vouched, war­rants the sale of goods: yet herein I am of opinion, that the Bailiffs which distrain cannot Ex osficio without a spe­cial Warrant first directed to them for that purpose from the Commissioners, make sale of goods distrained for a Lay, Tax or a Sesse of Sewers; And I take it, it were a good Warrant for the Commissioners to make an advised special Law of Sewers for sale of goods distrained upon a just oc­casion, before they direct any Warrant Ex subito to the Bailiffs, or for any such purpose.

But now herein follows a matter of some consequence, and worthy the handling, That if by the Laws of Sewers goods may be sold towards the repairs of these works, as [Page 151] in my opinion they may, Then whose goods may be sold is the question next to be decided; wherein to be brief, I am firm of opinion, That no goods can or ought to be sold by the power of these Laws of Sewers, but only the pro­per goods of the party Sessed and Taxed, though the goods and chattels of other men be Levant and Couchant on the grounds Sessed to the repairs: For I hold it not consonant to reason, nor that it stands with any rule of Law, That the goods and chattels of a stranger should be absolutely taken away from him, and sold for the debt and default of another man. And to this purpose the Case put in the 3 Eliz. Dier fol. 199. may fitly be applied to this point, where 3 Eliz. a Custom is alleaged for a Lord of a Manor to have and take the best which his Tenant had at his death; and if such best beast should be esloyned, that then he might have and take the best beast of any other Levant and Couchant upon the Land; and this was adjudged a void custom, as to the goods of a stranger to be made subject to such a forfeiture.

Thus far I have pursued my Argument in discoursing upon these Distresses, and touching such matters as do depend thereon, because in my experience I have found them the readiest part of the execution of these Laws; and I have heretofore beheld much enormious proceedings therein, both in the Commissioners and in their Officers, and there­fore I thought it very needful to have treated thereon for their better directions in these affairs hereafter.

Replevins.

YEt as I finde Distresse to be the most useful execution of these Laws of Sewers, so I have seen the proceedings therein much stayed and interrupted by the usual suing of Replevins, by which means the said Distresses taken by the authority of these Laws have been set at liberty, and the works of Sewers have been much letted and hindred there­by: And therefore the fifth point in my Case doth mini­ster a good occasion to enter into the serious examination of them.

[Page 152] And now my intent is, to declare in what case a Replevin doth lie, and where not; and surely this point hath hereto­fore been much stirred in, and not without some cause, for the very Statute seemeth to allow of Replevins in these words, (viz.) That if any Action of Trespass, or any other Action shalbe at­tempted against any person for taking any Distress, or for any other thing concerning the Law of Sewers, that the Defendant in such Action may make Avowry, cognisance or justification, for the taking of the said Distress, Trespass or other Act, where­of the Plaintiff complained was done by the authority of the Com­mission of Sewers, for a Lot or Tax assessed by the said Commissi­on, or for other such act or cause as the Defendant did by the said Commission: And in what action can a man so properly make his Avowry, Cognisance or Justification as in a Replevin, being a word only apt for that action; and a Distresse is de sua natura, properly replevisable by the Common Law: and for direct authority in the point, it appears in Rooks Case, that a Replevin was there sued for the delivery of the Distresse taken by the power of these Laws of Sewers: But I must here distinguish, for I am of opinion a Replevin doth not lie, nor ought not to be granted from the Sheriff, or any of his Deputies, for that the Sewer is a Judicial Court of Record, & of greater authority then the power of the She­riff, which in these cases was but Ministerial; and the highest authority that he hath is but vicontiel, which is much infe­rior to the power of this Commission; and therefore the Sheriff is not of sufficient power to supercede a Court of higher power. Yet if one sue a Replevin, which afterward in Bank was abated, and a return of the Cattel there award­ed, another Replevin did lie by the opinion of the Book of 34 H. 6. fol. 37. and so it appeareth by the Statute of Westminster, cap. 2. but these new Replevins came out of the 34 H. 6. said Courts where the former was, for it is not likely, that the Sheriff could make deliverance by his warrant of Cattel, contrary to the award and return of a Court of Justice in a Retorno habendo; and therefore by the same Statute of Secunda deliberatione, is now to be awarded out of the Rolls [Page 153] of the Court whence the Retorno habendo came: And if one would resemble this case with other authorities, and with the reason of other Book cases of the Law, it will be made thereby apparant, that the higher Court may take or re­move a cause out of the inferior Court, but not Econtra, neither can the inferior Court supersede the superior: For if one be impleaded in the Kings Court at Westminster, and in coming towards London he is arrested in a Corporation Court, he may be delivered thence by the power of the superior Court to the which he was attendant, & the power of the inferior Court shall be superceded thereby, as the Law is declared in divers of our Books; By the which it is plain, that ones person being in the priviledge and protection of the Kings Court, could not justly be Imprisoned by the power of an inferior Court: And in Stringfellows Case in 3 Ed. 6. Dier fol. 67. The goods of one were seized by the 3 Ed. 6. Sheriff by processe out of the Chancery for a Subject, and after seisure, and before delivery thereof was made, a Writ of Prerogative came out of the Exchequer, rehearsing thereby, that the King was to be served before any other, and command the Sheriff to levy the same on the goods of the same Debtor; And whether these goods that lay un­der the power of a Processe in one Court might be taken from thence by the power of another Court, was the que­stion; and the better opinion therein, as I take it was, that they could not, for that by the former Processe they were priviledged from all other Jurisdictions, Powers and Autho­rities, especially if they were of an inferior degree: Yet there be two cases which not being curiously looked into make shew as if the Law were otherwise; the one is in the 11 H. 4. fol. 2. where the goods of I. S. were taken in Exe­cution by the Sheriff by a fieri facias which came out of 11 H. 4. the Kings Court of Westminster, and the Sheriff sold them to I. D. and there was a Replevin sued in that case, but no deliverance made of the Cattel in Court: and the other case is in 7 H. 4. fol. 28. goods were taken by a Levy which issued out of a Court Baron, and they were sold by the 7 H. 4. [Page 154] Bailiff, & there was also a Replevin sued, but no deliverance made of the Cattel in Court, neither would the Court order the Defendant to gage deliverance: so that by these two cases it may seem what a Replevin did lie though another Court had formerly the Jurisdiction of the Cattel taken by the Distresse: But, under favor, I hope I shall easily reconcile these books, and shall make it to appear that they do not make against my opinion formerly deliver­ed upon this diversity, That when the goods were seized or taken by Processe, and remained by the vertue thereof in the hands of the Sheriff or of his Bailiffs, during that time no Replevin did lie in the Case; but after such time as the goods or cattel were sold away, as in the said two Cases formerly alleaged they were, then against the party that bought them, or any other, a Replevin did lie in the Case; for after the sale they were out of the protection of the former parties, and then a Replevin might well take hold of them, being out of all other Jurisdiction. And the same difference I take in this Case of the Sewers, that is, That so long as goods distrained by Warrant and Process out of this Court of Sewers remain in the custody thereof, they be not replevisable by the Warrant of the Sheriff or of his Deputies, but after they be sold away, then by the sale thereof they are out of the protection and priviledge of the Court of Sewers, and then the Sheriff may cause them to be delivered by Replevin. Yet it may be objected unto me, that in Rooks case a Replevin was taken against him which detained the distresse by Warrant of the Commissio­ners of Sewers; it is true, the Book is so, which case I admit, and that the Replevin was well granted there; yet I take it, it doth not contradict my said opinion, because there Carter was assessed, but the goods of Rooks were taken and detain­ed for the Sesse, and Rooks did sue the Replevin, which he might well do, because against him or his goods there was not any Law of Sewers extant or in force, neither was he or his goods within the priviledge or jurisdiction of these Laws of Sewers: But if Carters Cattel had been taken, who [Page 155] was the very party sessed, he could have had no Replevin from the Sheriff or his Deputies to deliver his Cattel.

But although a Replevin doth not lie in the case afore­said from the Sheriff or his Deputies, Ex officio to deliver a Distresse of Sewers, yet out of the Kings Courts at Westminster a Replevin doth lie in those cases: And the Charter of Romney Marsh pag. 18. doth afford us in this Ch Romney Marsh. case a very good president; for there complaint was made to the King, setting forth thereby, That whereas his High­nesse had appointed and authorized Henry de Bathonia to be his Justice, and to determine the differences depending and touching the repairing of the defences of the said Marsh, he had ordained, that Distresses might be taken according to the 24. Jurators, It a quod nullus vicecomes aut alius balivus noster intromittat in districtionibus illis, tu tamen (meaning the Sheriff of Kent) nihilominus districtiones illas propter hoc factum per vigint quatuor Juratores in prejudicio considera­tionis eorundem reluxasti, tibi igitur precipimus quod districti­onibus illis in nullo te intromittas; and in the same Charter the like matter is there also so determined of, pag. 7. By the which may be collected, that the Sheriff Ex officio might not meddle with such Distresses: and in the same Charter, pag. 8. the words be further, Quod siquis de conside­ratione predict' districtionis se injuste gravat' sentiret & inde conqueri vellet ad ipsum Dominum Regem querelam suam defer­ret & ipse in Curia sua justiciam fieri facere reservasset; where­by it is manifest, that a Replevin lay for a Distresse taken in the Kings Court, for that they be of a superior authority and jurisdiction to these inferior Courts of Sewers: And therefore the Replevins which our Statute aims to give way to, are intended to be taken out of the Kings Courts, which in Law and Justice ought to be obeyed, and not from the Sheriff or his Officers by vertue of their Office only.

But in my case the Commissioners made a Law, that the goods of A. should be sold without allowance of Reple­vin, which is a good Law upon the distinctions and diversi­ties aforesaid; that is, that A. who was the person assessed [Page 156] might not have or take a Replevin because he was a person bound expresly by the Law, nor that the Sheriff or his Officers Ex Officio might grant a Replevin to deliver the same, being under the power of this Law of Sewers.

But the Kings Courts at Westminster may in those cases of Sewers deliver the Distresses; and this construction made of this Statute, as I take it, stands with Law and reason: And in the 31 Ed. 3. Brook, Replevin, plac. 60. the Case is put, a man did grant to A. B. a rent out of his grounds, 13 Ed. 3. with power that if it were behinde that he might distrain therefore, and detain the Distresse against gages and pledges; and yes it was adjudged, that if the Rent were behinde and the grantor distrained, he could not detain this Distresse against the Replevin: Yet here were the direct words of the party himself to the contrary, but his words could not overrule the Law: So that upon all these matters, I hold these Tenents following:

1 Imprimis, To make a general Law to restrain all Reple­vins, granted either from the Sheriff or the Kings Courts, is no good Law or Ordinance of Sewers; for that Reple­vins de jure are in such cases grantable out of the Kings Courts, and such a general Law savors too much of oppres­sion, in stopping up the Gates of Justice.

2 Secondly, for a Sheriff or his Deputy to grant and award Warrants of Replevin Ex officio, to deliver goods or cat­tle distrained, and detained for a Tax and Law of Sewers, is in my opinion against Law, and need not to be obeyed, for that the Distres was Sub protectione superioris Curiae, which is of a higher degree then a Sheriffs Ministerial Warrant.

3 Thirdly, if a Distresse be taken and sold for a Sesse of Sewers, a Replevin lyeth against the buyer, for by the sale the goods and cattel were put out of the protection of the Court of Sewers.

4 Fourthly, if a Rate or Tax be imposed by the Laws of Sewers upon I. S. & the goods of Iohn a Downs be taken there­fore on the ground of I. S. which were charged, I. D. may sue a Replevin of his said cattel from the Sheriff, for that he [Page 157] nor his goods were not expresly bound by the Laws of Sewers.

5 Fifthly, a Replevin lyeth out of the Kings Courts of Westminster, to deliver a Distresse taken and detained by the Laws of Sewers, for that they be Courts de altiore natura.

6 Sixthly, a Distresse taken by a Lord on his Tenant for not repairing a work of Sewers, which by the Tenure of his Land he ought to do and repair, the Tenant may sue a Re­plevin from the Sheriff Ex officio to deliver the Distresse, for that this Distresse was not taken or detained by Warrant, Judgement or Decree of Sewers.

7 Seventhly, If upon a Judgement given in the Kings Court, or upon a Decree made in this Court of Sewers, a Writ or Warrant of Distringas ad Reparandum, or of that nature be awarded, and the parties goods be thereby taken, these goods ought not to be delivered by Replevin to be taken either out of this Court, or out of any other Court of the Kings, because it is an Execution out of a Judgement.

8 Eighthly, although one grant a Rent out of his Land with clause of Distresse, and with Grant or Covenant that the Grantee may distrain and detain this Distresse till he shall be satisfied his Rent, Yet a Replevin lieth in that Case.

A perpetual charge.

SO now I have fully and: at large declared my opinion touching Distresses and Replevins; wherein, I hope, I have fully satisfied the first point of my Case: I intend therefore now to proceed to the sixth point, which con­cerns charges and sales of Lands to be made by the Com­missioners of Sewers by the power and authority of this Law.

And, first I suppose the question may be extended to this, that is, Whether the Commissioners of Sewers can impose [Page 158] a perpetual charge upon Land to repair a work of Sewers for ever by the power of these Laws.

I do here acknowledge, that this is a knotty Point, yet something may be alleaged in maintenance of this Opinion Affirmatively: For in the parts of Holland in the County of Lincoln, almost every one knows which part he is to repair and maintain in perpetuity; And Experien­tia est optima interpres rerum; And it appeareth by the Charter of Romney Marsh, pag. 12. That the use there was to impose perpetual charges on singular persons; Char. Romney Marsh, pag. 12. For the words there be these, Juratores per eor' sacrament' mensur abunt per perticam omnes terr as & Tenementa quae infra dictum Mariscum periculo subiacent quibus mensueration' factis viginti quatuor per communitatem prius electi & jurati habito respectu ad quantitatem Walliar' terrar' & Tenement' quae pe­riculo subiacent per eor' Sacramentum ordinabunt quantum ad pre­dictarum Walliar' sustentationem & reperationem faciend' & su­stinend' ad quemlibet pertineat, ita quod proportion' acrar' terrar' periculo subiacent' singulis assignetur sua portio perticar' & predict' assignatio fiat per locos certos ita ut scietur ubi & per quae loca; ad quantum, singuli defendere teneantur. These words in this Charter seem to be plain, That by the Laws established in Romney Marsh, the Commissioners had power to assign to eve­ry man his portion to repair in perpetuity; but I finde no such words in our Statute: And whereas it may be said, that our Commissioners have power to make sale of the Lands; Ergo, They may charge them perpetually; but this is a non sequitur for that, for the sale they have expresse War­rant, but not so for the charge: And powers and authorities must be duly pursued, and are not to be taken by equitable or argumentable collections or implications, so that it may seem the Laws of Sewers were never held so perdurable as to binde mens Lands with perpetual charges: And there­fore this difference I take, That by the Custom of a town or country, every one may know his particular portion, which the owners of grounds are obliged and bound to re­pair perpetually; but without such a Custom it hath been [Page 159] held, That the Commissioners of Sewers cannot binde any mans inheritance to a perpetual charge, by any power or au­thority given by this Statute; but in the said case of Romney Marsh, the Custom there maintained this point: yet Not a bene verba hujus Statuti, which be these (viz.) And to make and ordain Statutes, Ordinances and Provisions from time to time as the case shall require, for the safegard, conservation, redresse, correction or reformation of the Premises and every of them, and the parties liable to the same, necessary and behoofful after the Laws & Customs of Romney Marsh in the county of Kent, or otherwise, by any ways or means after their own wisdoms and discretions: These be the words, and this is the clause which must make good this perpetual charge, for that it doth formerly ap­pear, that such like Laws and Customs there were in Romney Marsh as this is; and therefore I may conclude this point, that the Commissioners in imitation of the said Ordinance of Romney Marsh, may make Decrees to binde Lands to per­petual charges: Yet Sir Edward Cook in Keighlies case sets it down as resolved, That the several Commissioners of Sewers throughout all England, are not bound to pursue the Laws and Cu­stoms of Romney Marsh; but in case where some particular place within their Commission have such Laws & Customs as Romney Marsh hath, there they might pursue them. But in my own opinion, the Commissioners may, if they please, make Ordinances and Laws like to those of Romney Marsh, where there hath not been any such use; and the words of the Statute, as I take it, will bear that construction; and the said opinion of Sir Edward Cook, is not directly against this. And upon Decrees for sales of Land, it is usual in these Decrees to binde those Lands to the perpetual repairs.

Sales of Lands.

THe words of the Statute which be made for sales of Lands be these, Provided always, That if any person or persons being assessed or taxed to any lot or charge for any Lands, Tenements or Hereditaments within the Limits of any Commission [Page 160] hereafter to be directed, do not pay the said lot and charge according to the Order and Assignment of the Commissioners, having power of the execution of the said Commission, &c. by reason whereof if it shall happen, the said Commissioners for lack of payment of such lot & charge, to Decree and Ordain the said Lands and Tene­ments from the owner or owners thereof, and their heirs, and the heirs of every of them, to any person or persons for term of years, term of life, Fee simple, or Fee tail, for payment of the same lot and charge: Then every such Decree and Ordinance so by them ingrossed into Parchment, and certified under their seals into the Kings Court of Chancery, with the Kings royal assent had to the same, shal binde al and every person and persons that at the making of the same Decree had any interest in such Lands, Tenements and Hereditaments in use, posession, reversion or remainder, their heirs and Feoffee and every of them, and not to be in any wise reform­ed, unless it were by authority in Parliament hereafter to be sum­moned and holden within the Realm.

And also that the same Laws, Ordinances and Decrees to be made and ordained by the Commissioners, or any six of them, by authority of the said Commission, shall binde as well the Lands, Tenements and Hereditaments of our Soveraign the King, as all and every other person and persons, and their heirs, and such their interest as they shall fortune to have in any Lands, Tene­ments and Hereditaments, or other casual profit, advantage or com­modity whatsoever they be, whereunto the said Laws, Ordinances and Decrees shall in any wise extend, according to the true pur­port, meaning and intent of the said Laws.

This Clause or Proviso was strangely placed in this Sta­tute, as if this Statute had not been the first Father of it, and as if this Law had made some addition to a former Law: But I take it, that this Statute was, and is, the first and only Law which gave sale of Lands in cases of Se­wers, and this Clause stands upon these four pillars.

1 Imprimis, for what cause Lands may be sold by the Com­missioners of Sewers.

2 Secondly, what Lands are to be sold within these Laws.

[Page 161] 3 Thirdly, what persons, what Estates and Interests are to be bound thereby.

4 Fourthly, to what persons these Lands may be sold or decreed.

The Statute is, If any person sessed do not pay; whereby it is manifest, that the Lands are to be sold for sesses and charges imposed by the Commissioners which lyeth in payment on­ly, and they may not be decreed away for any other cause or matter: And therefore if one hold his Land to repair a Wall, Bank, Sewers or other work of Sewers, and he neglect to repair the same, the Commissioners of Sewers cannot for this cause decree the Lands away from the owner, because this charge lay not in payment: And I cannot gather out of the words of this Statute, that Lands can be decreed for any cause then for Non-payment of a Lot, Sess or Charge, by reason this word Payment is reiterated three or four times in this branch of the Statute, and no other words be coupled with it to infer any other or larger exposition.

If I. S. do hold his Lands of the Lord of a Manor by the payment of Twenty shillings yearly or other sum, to­wards the repairs of a work of Sewers, and he do neglect to pay the same, whereby the work is unrepaired, although this is a charge which lyeth in payment, yet because it grows due by Tenure by the Common Law, and was not imposed by the force of this Statute, therefore the Lands of I. S. cannot be decreed from him by the Non-payment thereof, by the tenor and vertue of this Law of Sewers.

But if the Lands of one be generally charged to re­pair such a Wall or other work of Sewers by Prescri­ption, Covenant or otherwise, and the Commissioners im­pose a sesse and rate upon him to repair it, and he do not, there in this case, although the charge was by the rules of the Common Laws, yet because the sesse and rate was set upon him by the power of this Statute, I am of opinion, that for neglect of payment the said Lands may be sold by the decree of the Commissioners of Sewers.

[Page 162] So if one do hold his Lands for the payment of Twenty shillings to repair a Bank, and the Commissioners of Sewers do order the party to pay the Twenty shillings at a time by them prescribed (not being contrary to the usual days of payment) and he do neglect to pay, The Commissioners may decree his Lands from him, because this charge, by reason of the said Order, had got the force and power of this Statute.

If a charge be generally laid upon a Township, Hundred or Rape, which is not paid according to the Commissioners Order, no Lands can be decreed in this case, because no persons or Lands be in this case particularly charged, and the decree of the sale must be directed by, and depend upon the sesse: But if after the general sesse be laid, the same be after assessed upon particular persons by particular sums by the said Commissioners, then upon default of payment, their Lands making default may be decreed from them by the power of this Statute.

If an assesse or charge of payment be laid upon certain Lands without mentioning the Owner, the Lands cannot be decreed from him by this Law; for the words of the Statute be (That if any person or persons assessed to any Lot or Charge do not pay) So that I shall take it, that no decree for sale of Land can be made but where there is a person certainly assessed by name.

Lands cannot be decreed away from the owners for de­fault of payment of Fines, Amerciaments or Pains; for though these be sums of money or charges imposed by the Commissioners of Sewers of persons certain for matters touching these Laws, yet because they were not sessed or rated towards the repairs of any works of Sewers, but be set upon the parties as mulcts and punishments, and be due to the King, therefore no decree of Lands can be made for any of them.

2 Now the second part of this clause is, what Lands may be decreed by the authority of the said Statute; and there­by it appears they must be such Lands as lie and be within [Page 163] the power of this Commission of Sewers; and herein rests a difference between the case of a Distresse for a sesse which may be taken in any place within this Realm, and the decree of sale of Lands for Non-payment of a sesse which must lie within the bounds and extent of the Commission; for this Distresse is circumscribed to the extent of the Statute, which is over the whole Realm, and the sale is tyed to the limits of the Commission: And I am also of opinion, that no Land can be sold away by the decree of the Commissioners of Sewers, but such as were charged with the sesse.

If one hold his Lands in Comitat' Eborum to repair a Sea­bank in the County of Lincoln, and the Owner is assessed therefore, and makes default of payment, the Commissio­ners of Sewers in the county of Lincoln may give warrant to distrain for this sesse in the county of York; but they can­not decree away by sale those Lands lying there which were charged with the sesse.

A Copyholders Land cannot be decreed against him by this Law, for if it might, then these customary Lands should be transferred from one to another, contrary to the Customs of the Manors whereof they be parcel; and it would infringe that rule which is delivered in Heidons Case Heidons Case. in Cooks 3 Report, which is when an Act of Parliament doth alter the service, Tenure and interest of the Land or other thing, in prejudice of the Lord, or of the Custom of the Manor, or of the Tenant, there the general words of such a Statute doth not extend to Copyholds: And in this case if any sale should be made by the Commissioners, all the said rules should be infringed, for it were contrary to the Custom to passe these Lands without surrender; it were in prejudice of the Lord to have Copyhold-land passed, and he to have no Fine: And I am likewise of opinion, that the Freehold of these Lands could not be passed away for a sesse or a lay, because the Lord hath but the shadow, and the Copyholder hath the substance; But if the Lords Rents of Assize should be assessed as they ought to be, and he do neglect to pay, then these Rents might be decreed from him; and so may [Page 164] all other Lands, Tenements and Hereditaments decreed, in respect whereof one is sessable and sessed by the Laws.

3 The third Branch of this clause is the direct point in my case (viz.) What persons & what estates be bound by these decrees? And first of the Heirs in Tail, whether they be bound by a decree made against the Donees in Tail their Ancestors, is the question; In the handling whereof I hold it sitting, to shew in what cases the Heirs in Tail have been bound by the act of their Ancestors, and the reasons and causes thereof.

And therefore if a Disseisor make a Gift in Tail, and the Donee in Tail grant a Rent to the Dissessee for release of his right, this will binde the Heir in Tail, for that by this re­lease his Estate which before was defeisable is now con­firmed, as by the Books of 44 Ed. 3. 22. and 20 Ed. 4. 13. 44 Ed. 3. 20 Ed. 4. 46 Ed. 3. appeareth: and so in 46 Ed. 3. a gift in Tail was made Ita quod the Donee might alien to the benefit of the Heirs in Tail; and and this by Judge Welbey was held a condition which bound the Heir in Tail for his benefit: And in 12. Ed. 4. 1. Tregouse and Taltarms Case was, That a recovery against Tenant 12 Ed. 4. in Tail, with a Voucher by him over, did binde the heirs in Tail, by the Common Law, by reason of the intended re­compence which was to come to him by the Voucher; and so a lineal warranty with assets, and a collateral warranty without assets, were and be both of them bars to the Issues, by reason also of the intended recompences; and these are things which were originally tied to those Estates, and were incidents to them ab initio: And therefore this shall suffice to treat of bars to the Issues in Tail by the Common Laws; and now I shall proceed to shew in what cases they were barred of their Estates by the Statutes of this Realm.

By the Statute of 16 R. 2. cap. 5. The Lands and Tene­ments 16 R. 2. of one attaint in a Premunire are to be forfeited to the King; and in 21 Eliz. one Trudgin was Tenant in Tail, 11 El. and was attainted in a Premunire, and the question was, Whether Intailed Lands were forfeited against the Issues in Tail, or not? And in Doctor Forsters case in Cooks 11 Re­port, C. 11 Rep. [Page 165] it is there said to be resolved, that the general words of that Statute did not repeal the Statute of Westminster 2. of Intails, and so the forfeiture was there resolved to con­tinue but for the life of Trudgin, and did not binde the Issues in Tail.

A Judgement in Debt against Tenant in Tail, or if he be bound in a Statute or in a Recognizance in the nature of a Statute, the Lands Intailed were not extendable nor to be held in extent by the Statutes of Westminster 2. Acton Burnel, or by the Statute de Mercatoribus by any of the gene­ral words of these Laws; but the Statute of 33 H. 8. cap. 39. by expresse words bindeth the heir in Tail, for their Lands 23 H. 8. whose Ancestors stood indebted to the King by Judge­ment, Recognizance, Obligation or other specialty.

But the Statute of 26 H. 8. cap. 13. Enacts, That every 26 H. 8. one which shall be attainted of Treason, shall forfeit the Lands whereof he is seized of any Estate of Inheritance; and by this Statute Intailed Lands were forfeited; and the words (Of any Estate of Inheritance) were the words which gave that forfeiture, the one in Fee simple, the other in Fee tail; and the word (any) presupposeth more Estates of Inheritance then one.

But whether a Decree of sale of Lands made by Com­missioners of Sewers shall binde the heirs in Tail, is the point of my case; and in my opinion I think they shall be barred, for the causes and reasons following:

First, the words of the Statute of Sewers be, That such a Decree shall binde all and every person and persons that at the making of the same Decree had any interest in such Lands, Te­nements & Hereditaments in Uso, Possession, Remainder or Reversi­on, their heirs and assigns: So that by expresse words it bindes the heirs; and it would have bound the heirs of a Tenant in Fee simple, without the word (Heirs) expressed in the Sta­tute; therefore the word (Heirs) needed not, but onely for the binding of the heirs in Tail.

Also if these Lands were charged by Prescription, as many Lands be, then were the Lands originally bound, [Page 166] and the heirs in Tail stand charged with these sesses, as well as Land in Fee simple.

And lastly, this is a Law enacted for the preservation of the Commonweal, and is more to be favored then particu­lar Estates of heirs in Tail: But the case of the Premunire was penal in point of a forfeiture, which is to be strictly taken for the King, and favorably for the subject; and therefore in my opinion, the heirs in Tail shall be bound in these cases of sale, and the rather because they be within the words of the Statute, videlicet, Heirs generally put, which extends to heirs in Tail, as well as to heirs in Fee simple; and because the sesse and charge shall binde both alike, so in my opinion the sale shall binde both, in regard the sale depends upon the charge and sesse.

If a Prebend, Parson or Vicar, Dean, Bishop or such like, which be seized of Lands in their politique capacity be sessed to repairs of works of Sewers, their Lands can­not be decreed away from them in such sort as to binde their successors; for as this Statute of Sewers extend to binde Lands by decrees in perpetuity, so the Statute of 1 and 13 and 14 Eliz. restrain Alienations, and where those Sta­tutes restrain them, I am of opinion, that this general Statute of Sewers doth not dispence with those Statutes. In Croft Crofts and Ho­wels Case. and Howels Case in Plow. Comment. a fine with Proclama­tions and non-claim by five years did binde the Corporati­on of the Mystery of the Cooks in London for their right in Lands, and so all other Corporations which are absolute of themselves, and needed not the assent of any other, as Majors and Commonalties, Deans and Chapters, Master and Fellows of Colledges: But the Law is otherwise of Parsons, Vicars, Prebends, and such like; And the like exposition do I make of them in this Statute of Sewers. But I will here make a distinction; I am notwithstanding of opinion, That the Parsons, Vicars, Prebends, and such like, for their own neglect, are bound during their times, but not their successors after them; And note, this Statute though it mention heirs, yet it doth not at all mention suc­cessors, [Page 167] which is worthy of consideration also: And in my opinion this Statute as to Decrees to be made of Lands will binde women, Covert Baron, Infants, persons that be non sanae mentis and such like, because it is a Law made for the safety of the Commonwealth: And so it is held in Zouches case in the Com. That the Statute of 4 H. 7. of fines had bound Infants, Ideots and Women Court Ba­ron, had they not been excepted in that Statute; A forciori Zouches Case. shall they be comprised in this Statute, for the Statute of fines was made for the peace of the Weal-publique, but the Statute of Sewers was made for the safety thereof.

If there be two Tenants in Common which be sessed towards the repairs of a Wall, Bank or such like work of Sewers, and one of them do neglect to pay his proportion­able part, Whether Commissioners may decree a moyety without partition both of the sesse and Land, is a question; for their Estates are several, though there be a community in taking of the profits: And therefore the matter is, whe­ther the assesse shall attend upon the possession which is in Common, or upon their Estates which be several: And although Commissioners in assesse be not bound to take no­tice of their Estate, yet if they take upon them to decree a mans Lands from him, they are then to take notice of his Estate, and of all other circumstances necessarily depen­ding thereupon: In 22 H. 6. fol. 12. if a Trespasse be done upon Lands which are held in Common, they are to joyn in an Action, but if one of them die that Action shall sur­vive, for though they were joynt in the personalty, yet they disjoyned in the realty; And if two Tenants in Common of Land joyn in a grant of Ten pounds rent charge out of their Lands, the Grantee shall have Ten pounds yearly of either by the opinion of Mr. Perkins: But if a sesse of Ten pounds be laid and imposed upon them by this Law of Sewers, this sesse shall not double as the Rent should; yet in this case of a joynt assess imposed upon Tenants in Com­mon, and one would pay his moyety, and his companion refuseth, the Commissioners of Sewers cannot sell a moye­ty [Page 168] of the Land, for that it is a joynt sess, and was not im­posed by moyeties, and the sale doth depend upon the sess, and all may not be sold; for that one Tenant in Common cannot prejudice his companion in things of Realty.

4 The fourth matter is to whom Lands may be decreed by this Law; for by the words of the Statute it appeareth, That the Commissioners have power to decree Lands for default of payment for years, for life, in Tail, or in Fee simple; where­by the Law intended they should make their decrees for sale, according to the quantity of the sess, and so should use mo­deration in the Estates they made or sold therefore; and it was not intended they should sel the Feesimple away for sess which might be satisfied with the making of a less Estate.

And I am of opinion, that this decree doth make the Estate, with the help of this Statute, according to the limi­tation which should therein be declared, and that the party shall have Estate according as the same is thereby limited unto him; and this is no equitable decree which bindes the person onely, as Chancery decrees be, but it bindes the Land; and therefore the Commissioners may not decree Lands to a Corporation, as to a Major and Commonalty, Dean and Chapter or such like, which be Mortmain, for the general words of this Statute do not repeal the Statute of Mortmain in my opinion.

And herein I shall end my Argument touching decrees; and I take it, though the interest of E. was intail, yet the sale thereof might be made by this Statute for the causes and rea­sons aforesaid: And now only remains under my censure to declare my opinion, whether the Commissioners of Se­wers did Justice, in refusing to admit of Pleas of discharge which were tendred to them by A. and E. wherein may come justly into our considerations these things, (viz.) Whether Traverses, Pleas of Exemptions, and other legal proceedings, may be had in this Court of Sewers, or not; saving I adde this, that these decrees of sale being binding, must be certified into the Chan­cery, with the Kings Royal assent had thereto.

Legal proceedings.

Exemptions.

IT may be a grand question, Whether these Laws of Sewers will permit any Exemptions to any person or per­sons, and by the strict penning of the words of this Com­mission it seems to oppose all such priviledges and dis­charges, as Exemptions be; The ancient Commission which is in the Register, and in Fitz. Nat. Br. are exceeding strict; for the words therein be, Ita quod aliquibus tenentibus terrarum seu Tenementum seu communiam pasturae seu Pischariae habentibus diviti vel pauperi vel alteri cujuscun (que) fuerit condi­tionis Status aut dignitatis qui defension' habere potuerint per predict' Wallias Guttur as Fossata sueras portes calceta & gurgi­tes seu etiam damnum per trencheas predict' sustinent vel poterint sustinere sive fuerint infra libertates sivè extra non parcantur in hac parte; And the words in our Statute be in effect, And all such which reap profit or sustain damage, shall be assessed; which words seem not to admit of discharges: Yet in my opinion out of the strict words of these Commissions there be some Exemptions, though not expressed in words, yet supplyed in reason, and are to be added in construction.

1 First, for the grounds lying betwixt the Seabanks and the Seas are in reason exempted from the charge of the Banks and Walls, because they can take no safety thereby.

2 Secondly, those grounds which be upon an assent, and not on the Level, are also by the rule of reason exempted from assesses to be imposed only by the power of these Laws.

3 Thirdly, where one or moe be tyed to repair a Bank, Wall or other defence by Custom, Prescription, Tenure or otherwise, all others be in Law and reason exempted.

4 Fourthly, a Parson & Vicar with cure are not to be assessed for their Tythes, and divers of the Hereditaments formerly mentioned in Assesses be by the rule of reason exempted.

5 Fifthly, but whether one may be discharged and exempted from the repairs of the works of Sewers by any special Custom or Prescription, is a great question of our case, in regard both the old and new Commissions Quod nul­lus [Page 177] in hac parte parcatur seem to Toll all Prescriptions and Customs of discharge, and to admit of none of them: And the Charter of Romney Marsh pag. 31, 32, and 33. beareth the same exposition; for there Godfrey pleaded a Plea to dis­charge him of the repairs of the Walls and Watergauges, because he claims his Lands by Charter from the King, and also prescribed generally in non reparando, but he durst not abide his Plea; for there pag. 39. it is said, That all having Lands should contribute, and that none might be spared; and also pag. 53. be these words, Quod starent ordinationi Jurator' pre­dictor' nulla consuetudine resistente; which words be direct in the point against such general discharges claimed by blinde customs: Yet I have been credibly informed, that Sir George Fitzwilliams Knight, had a Custom in his Town and Manor of Mabblethorp in the County of Lincoln, called Swiftage, whereby he challenged to be freed from being charged to the repairs of the Seabanks, because in consideration there­of he and his Ancestors have used in regard of their Manor there to do some other repairs as beneficial for the Com­monwealth; and in my opinion, in such a special Custom one may be exempted; like to the case of Tithes, wherein one could not by the Common Laws prescribe in a non deciman­do, yet in a modus decimandi he may, because there is some competent consideration given in lieu thereof; And so in my opinion one cannot generally prescribe or alleage a Custom to be freed and clearly exempted from the repairs of Sewers, but by special Custom he may, as in the said case of sir George Fitzwilliams.

And therefore the Commissioners of Sewers in my case did very justly and discreetly refuse the said general pleas of discharge tendred to them by A. and E. and so I super totam materiam conclude my Argument as I did my Case, That the Commissioners of Sewers did administer true Ju­stice in all the parts of these Laws.

The Case.

A. demiseth to B. and C. Land of the yearly value of Sixty pounds cum stauro of the value of Two hundred pounds for their lives, the Remainder to D. a free Citizen of Lincoln, B. and D. disseise C. of the Land and take the stock, C. releaseth to D. the goods absolutely, and the Land upon Condition; D. dieth in Exile, E. his son and heir enters, B. and C. who enter for the Condition bro­ken, E and Francis Countes Dowager of Warwick, and three other Commissioners of the Quorum of Sewers, make a Law to raise a Were, erected upon a River navigable at the costs of the party, because it hindred the current of waters.

My conclusion is, That here be competent Commissio­ners in number and in Estate which made this Law, and that this Law is well decreed within this Statute.

The case I do distribute in these points, viz. Three at the Common Law, and four upon this Statute; the points I intend by the Common Law are these:

[Page 181] 1 First, whether the Sixty pounds stock can be demi­sed and letten for life, with the Remainder over, as this case is.

2 Secondly, whereas B. and C. be two Joyntenants in possession, whether one of the Joyntenants and a stranger can so disseise the other Ioyntenant as to transfer thereby an interest and Estate to the stranger.

3 Thirdly, because the Release dependeth upon the disseisin, the question is, in what maner it doth inure, and whether it shall expel B. out of that moyety, because it is made to the stranger; and then what is reduced by the Condition, whe­ther a possession, action, or a right.

Points upon this Statute.

1 First, whether the Son of the free Citizen exiled is a disabled Commissioner, in respect of his person; and whether he hath such an Estate, either in Lands or goods, as will satisfie this Law.

2 Secondly, whether the Countess may be a competent Commissioner within this Statute.

3 Thirdly, whether a joynt interest in Lands or goods will make the Ioyntenant a sufficient inabled Commissioner within this Statute.

4 Fourthly, whether the Were, as this case is, be raced down or not.

And hereupon I intend to lay open the whole division, touching the Lets, Impediments and Annoyances which this Statute speaketh of.

The parts of the Statute whereupon I do ground my sub­sequent matters, doth contain in it these words (viz.) That if any person or persons of what Estate or Degree soever he or they be of, that from henceforth do take upon him or them to sit by vertue of the said Commissions, not being first sworn ac­cording to the Tenor of the Oath expressed in the Statute; or if any person so named and sworn do sit, not having Lands, Tenements or other Hereditaments in Fee-simple, Fee tail, or for term of life, to the clear yearly value of Forty Marks above all charges to his own use, Except he be Resciant and Free of any City, Borough or Town Corporate, have moveable substance of the clear value of One hundred pounds, or else be learned in the Laws of this Realm, in and concerning the same; That is to say, admitted in one of the principal Inns of Court for an utter Barrister, shall forfeit Forty pounds for every time that he shall attempt so to do, the one moyety to the King, the other moyety to the party that will sue there­fore, &c.

So that by this clause it is manifest, that every one that is not qualified in one of these degrees, is no competent Com­missioner within this Statute.

1 First, that he be an utter Barrister in one of the four Inns of Court.

2 Secondly, or have Lands, Tenements or Hereditaments of the clear yearly value of Forty Marks above all charges, in Fee simple, Fee tail, or for life.

3 Thirdly, or be Free or Resciant in some City, Borough or Town Corporate, and have moveable substance of the clear value of One hundred pounds.

And that person which is not within one of the said three parts, and yet doth take upon him to sit in the execution of this Commission, incurs two penalties:

1 The one, the forfeiture of his discretion for his pre­sumption.

2 The other, of Forty pounds for his contempt.

[Page 187] And therefore for the more clear examination of these things, I will observe that method in my Argument, which my Case hath formerly prescribed to me.

1 And first of all, I shall proceed to the personal abilities, and first of the son of the free Citizen of Lincoln, I am of opinion, that every Commissioner of this kinde must be in­dowed with these three qualities.

I am of opinion, that every Subject born within the Kings Dominion is a Freeman of this Realm, as ap­peareth by the Grand Charter, cap. 14. yea though he be a Bondslave to a Subject; but a stranger born is no Freeman of the Kingdom, till the King have made him Denizen, in whose power alone, without the help of any other, one may be made free: And to be a Freeman of the Realm, the place of his birth is held more material then the quality of his Parents; for if Aliens have a childe in England it is free of the Kingdom: yet by the Opinion of Hussey Chief Justice in 1 R. 3. fol. 4. and in Calvins case of the Post Nati, it is holden for Law, That if Ambassadors of this Realm have children born in France, or elswhere where the Father and Mother be natural born Subjects, the children are free of the Realm of England; but if either the Father or the Mother of such children were an Alien, then are not those children free. One out of the Kings protection, is, as I take it, for that time no Freeman of the Realm: But in what case a man Exiled is in, sorteth the nearest to our question.

Exile is one of the Eight Punishments which the Roman Laws did inflict upon Strangers, which be videlicet,

• 1. Damnum.
• 2. Imprisonamentum.
• 3. Plagae.
• 4. Compensatio.
• 5. Ignominia.
• 6. Exilium.
• 7. Servitudo.
• 8. Mors.

Mr. Bracton doth in this maner describe Exile, that is, Cer­ti loci interdictio, and doth distribute it into Four heads; That is to say,

1. Specialis, hoc est interdictio talis provinciae Civitatis Burgi aut villae.

2. Generalie, Interdictio totius Regni & aliquando est.

3. Temporaria, pro duobus tribus quatuor aut pluribus annis aut, &c.

4. Perpetua, pro termino vitae & Exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertferdiae & Nor­folciae per Regem Richardum secundum, Et aliquando per Judi­cium terra ut sit in casu Piers de Gaveston & etiam in casu Hu­gonis de le Spencer junioris qui ambo fuorunt exilit' per Judi­cium in Parliamento.

Abjuration also was a legal Exile by the Judgement of the Common Law, as also by the Statute Law; and in the Statute of Westminster the Second, Cap. 35. He which ra­visheth a Ward, and cannot render the Ward unmarried, or the value of his Mariage, must abjure the Realm; and this is a general Abjuration: And by a Statute made in 31 Ed. 1. 31 Ed. 1. Butchers are to be abjured the Town, if they offend the fourth time in selling measled flesh; and this is a special Abjuration.

But I must put this Case to a further question, which is, What a man Exiled doth forfeit thereby? And in my opi­nion he forfeits these things following;

1 First, he loseth thereby the freedom and liberty of the Nation out of which he is Exiled.

[Page 189] 2 Secondly, he forfeits his Freedom in the Borough or City where he was free; for he which forfeits the Freedom of the whole Realm, by consequence forfeits his Freedom in every part thereof.

3 Thirdly, he is of as little esteem in our Law as if he were dead, for his Heir may enter, and so may his Wife enter into her own Lands, and may sue an Action as a woman sole, by 31 Ed. 1. & 1 H. 4. 31 Ed. 1. 1 H. 4. 1.

4 And fourthly, in my opinion he shall forfeit those Lands to the King, which he shall purchase in the Realm during his Banishment, qued vide 15 Ed. 3. Fitz. Petition' plac. 2. But there in that case Hugh Spencer was banished by a Judge­ment in Parliament, which gave a forfeiture of his Lands; howsoever I take him as strongly barred from purchasing in the Realm during his Banishment, as an Alien is, for fit alienigina by his Banishment, and he is in a worse case then an Alien, because he taketh with him Indignatio principis: But a banished man forfeits neither Title of Honor, as Knighthood, which is de jure gentium, nor the Lands he had before he was Exiled, unless by special Judgement given in a legal course they be so decreed.

Then our case goes further, That E. is not Exiled himself, but D. his Father was Exiled, whose Heir E. is: now whe­ther by the Exilement of the Father, the liberty and free­dom which E. might claim in the City of Lincoln by being the Son and Heir of a Freeman, be forfeit for his Fathers Banishment, or not, is the matter of my Case.

A Freeman of a City or Borough may be made divers maner of ways, as appeareth in the Case of the City of London in Sir Edward Cooks 8 Report, fol. 126. That is to say,

1 First, by Service in his Apprentiship.

2 Secondly, by Birth, by being the Son of a Freeman.

3 Thirdly, by Purchase, and that is by the Common. Councel of the City: And at Bristol by Mariage.

In the Chronicles in the Raign of Richard the 2. it is said, Freedom was obtained but by two means, videlicet, By Service, and by Birth; yet it seems it may be obtained by purchase, [Page 190] because the Centurion claimed his Freedom thereby in the 22 Chapter of the Acts of the Apostles. In the Irish Reports, Acts 22. 8. fol. 12. it is said, That one may be a Freeman by Birth, Mariage and Service: Saint Paul indeed was born at Tarsus in Cicilia which was under the obedience of the Romans, he chal­lenged therefore to be a citizen of Rome; but I take it the text there took it but to be National Freedom, which is such a general Freedom, as Calvin being born in Scotland claimed & had in England, because he was born under the obedience of the King of England; But that made not Saint Paul Free of the private Customs, Priviledges and Franchises of Rome, no more then Calvins birth made him a free Citizen of Lin­coln to the peculiar Customs of that City.

If one be born in a City of Parents that are not free, the childe hereby is no Citizen by birth; and if one be born of Free Parents out of the place of Priviledges, as out of Lincoln, he yet is a Freeman by Birth: Yet in the Charter Grant of Yarmouth the words were, Concessimus Burgensibus de Magna Yermutha de villa predict' oriundis, that they should have such Liberties and such; so that it may be the special words of the Charter may alter the case: yet in the case of the City of London, Cooks 8. Report, the King Cooks 8 Rep. by his Letters Patents could not make one a Freeman of Lon­don, yet he may thereby make him a Freeman of the Kingdom.

But whether those that are Free by Birth, Service or Mari­age be Freemen within my Statute, or not, is a question; be­cause the words thereof be absolutè posita to all purposes: And therefore I take it, that this Statute intends it of such as have challenged their Freedom, and which have taken the Freemans Oath, and are admitted into the Society and fellowship of the Freemen, Citizens and Burgesses; for in James Bags Case in the 11 Rep. such a one is taken for a per­fect Freeman, and no other: So in my opinion E. the son of D. is no competent Freeman of the City of Lincoln with­in the branch of this Statute; But admit he were, then it may be objected to me, that by the Exilement of the fa­ther [Page 191] the Freedom of the son was forfeit, by reason he was by this Exilement become no free Citizen. But in answer thereunto I say briefly, That if theson had attained this Free­dom by the death of his father, as a thing descendible, then it had been forfeit by his fathers Banishment, but the son had this Freedom by his own birth, as a purchase, and not by the death of his father by descent, Ergo, it was not for­feited by his fathers Exilement. Like to the case where I. S. hath many children, and then he confesseth himself Villain to I. D. in a Court of Record, yet his children formerly born are Freemen and no Villains, because they were free by their own births, but the Inheritance is inthralled, be­cause it is to come to the Heir by descent: So that I am of opinion, that if E. had otherwise been a competent Freeman, as he was not, then the Exilement of his father could not have disabled him.

Our Freeman which this Statute speaketh of, must not only be Free of the City or Borough, but he must also there be resciant; for these words are materially placed in the said Law, and here E. was the son of D. a Free Citizen of Lincoln, who did there reside and dwell, and every childe is part of the fathers family, for the Husband and Wife, Father and Children, Master and Servant are of a Family; and a Ward is part of his Gardians family: But in our case when D. was Banished, he then forewent his local Habitation, and so his said son could not then be of his family, nor could be intended to dwell with him who had no Habitation in the Realm: And I am of opinion, that this Statute requireth an actual habitation or resciancy, and not a Mathematical or Imaginary resciancy, such a one as was in Geffries Case in Cooks 5 Report; for there the case was, That one did personally and locally dwell and reside at Dale Jeffreys Case. and occupied Lands in Sale; here the party was in Law, but not in fact, an Inhabitant in Sale, and was there assessed as an Inhabitant to the repair of that Church; But this Commissioner of ours is bound to such resciancy as a Mini­ster is to his resciancy, which in Butler and Goodhals Case [Page 192] in Cooks Report ought to be locally and personally abiding in the Parish where his Parsonage or Vicarage house is, for resciancy or residency have a like signification, and be both of them words of that efficacy, as they tie a man to his perso­nal and actual abode and habitation with their family: But put the case that in Lincoln there be places exempt out of the Freedom of the City, and yet within the Circle of the Walls, as Saint Martins doth in London, I take it if a Free­man dwell there, this is no resciancy intended within this Statute, because the words of our Law be, That he be Re­sciant and Free of the City, which going together draweth his Habitation to the place where his Freedom is: And with this agreeth the Decree made for London touching Tithes in Anno Dom. 1535. which did not extend to Saint Martins, because it was In but not Of London, Doctor Graunts Case, Cooks 11 Report.

Our Freeman must also have in clear moveable substance to the value of a hundred pounds; this word (Substance) would have extended as well to ones real Estate as to his personal, if it had gone alone; but being coupled with the word Move­able, declares plainly that it onely extends to the personal Estate: And I take it, that these words (Moveable substance) doth not onely contain and extend to such things Quae dese movere possint, as live goods, Horses, Oxen, Sheep, and such like, but also to such things quae de se movere non possint, as Plate, Jewels, ready money, Utensils of house, Merce­ry, Drapery, and other wares and goods of value, Hay, Corn, goods of Husbandry, and Housewifery; but Birds and Beasts of Parks and Warrens, and Doves in Dovehouses, be not valueable sustance; a Hive of Bees, and a Villain for years, and a Captive taken in the Wars be, for there shall be paid for him a Ransom, as is mentioned in the Re­gister, fol. 102. Moneys due upon Statutes, Judgements, Recognizances, Bonds, Bills or Contracts, be not valueable substances within this Statute; for by this Statute it must be clear, and not doubtful or accidental, as Moneys out of hand be, which is like to a Bird in the Bush; yet these be all [Page 193] valueable, and are valued in Inventories taken in the Eccle­siastical Courts: But yet the Executors or Administrators shall not be charged for assets for them, till they have re­ceived them: And in 25 H. 8. in Dier, fol. 5. Obligations are not held valueable, but things in action; and if one 25 H. 8. have got goods by tort and wrong to the value of One hun­dred pounds, yet this is clear valueable substance within this Law; for although the word clear be inserted into the Statute, yet that relates to the value, and not to the title of those goods: And if one have goods as Executor or Ad­ministrator, these are not his own, and therefore do not inable him to be a Commissioner within this Law.

Neither do the goods of the Church inable the Parson, Vicar or Curate, nor the goods of a Corporation do not inable the Major and Aldermen, or Citizens of a City, or Town Corporate, for these do not belong to their particu­lar persons, neither did this stock in my case, which is de­mised to B. and C. make them competent Commissioners within this Statute, because they had not the property there­in, but onely the use and occupation thereof.

And although in this Statute it is not declared in what place these goods which should inable a man to be a Com­missioner of Sewers should be in, it will suffice if the party have them in any place within the Realm, for this very Law calls them Moveable substance: And herein I end my Free Citizen, and in my opinion E. had neither Freedom in his person, nor real Estate in Land, nor moveable substance in any sort to make him a competent Commissioner within this Law; yet if a Freeman be destitute of goods, or want perfection in his Freedom, if notwithstanding he have Lands to the value of forty Marks per annum, then he shall be allowed a Commissioner within this Statute: Touching which point of Lands I now intend to proceed in.

In the handling of this matter it is to be considered, which be Hereditaments within this Law; for the other two words Lands and Tenements need no exposition; where­in I am of opinion, That Messuages, Cortages, To [...]s, [Page 192] [...] [Page 193] [...] [Page 194] Crofts, Houses, Land, Meadow, Pasture, Feedings, Moors, Marishes, Heaths, Furs, Mills, Orchards, Gardens, Hopyards, Rents of Annuities, Prima vestura terrae, Pischaries, Tythes, Pensions, Portions, Proxies, Parks, Warrens are all of them Hereditaments within this part of this Law, for the word Hereditament is a word of the larger size and largest extent in our Law, being Omne quod Haereditari potest; and yet every Hereditament is not within this branch, for it hath two other words joyned therewithal (videlicet) yearly value: And therefore Franchises and Liberties, as Waifs, Strayes, Felons goods, Deodans, Fines, Amerciament, Profits of Courts, Fairs, Markets, Ferries, Hundreds, Leets, and such like, are all of them out of this Statute in this point, because they be not of a certain yearly value, but be acci­dental and depend in contingency, by the opinion in But­ler and Bakers Case Cooks 3 Report; But as it is there said, If these things have heretofore been usually letten and demised for certain yearly Rents, then they may be Hereditaments of clear yearly value within this Law. All Offices and Vocations, as Physitians, Chyrurgions or Trades, as Merchants, Mer­cers, Grocers, Drapers, and such like, be neither Heredi­tary, nor of certain yearly value, and therefore they be not within this Law, though perhaps one gain thereby Five hundred pounds per annum. Also dry reversions or remain­ders depending upon Estates for lives are out of this branch, for the words of the Statute be (having) which is in praesenti and not futuro.

Neither is an Advowson of force in this point, though it be assets in a Formdon, yet it is no assets in an Action of debt brought against Executors; Homages, Fealties, Es­cuages, Heriots, Reliefs, Nomine paenes, and such like, be Hereditaments, but because they are not of yearly va­lue, they are not therefore within this Law.

Also if a Commissioner of Sewers be seised of a Rent or Annuity payable every second year, it doth not inable him to sit because it is not Annual, which is intended yearly, and every year, as the Pryor of Plymptons Case in [Page 195] Dier, fol. 133. is, but if one do grant to I. S. an Annuity or Rent of Forty Marks in Fee, payable at the feast of Easter yearly, if the grantee will then come for it to such a place, is of certain yearly value within this Law.

But put the case that A. is seised of Land in Fee, and grant to B. Forty Marks per annum for his life only; I am of opinion that B. is no sufficient qualified Commissioner within this Law.

But if A. be seised of a Rent of Forty Marks per annum in Fee, and he grant the same to B. for his life, he is a compe­tent Commissioner within this Law differentia apparet.

Our Statute goeth on in these words, That the Commissio­ner which would sit without exception, must have in Lands, Te­nements or Hereditaments of the clear yearly value of Forty Marks to his own use; Therefore a man seised of Lands to that value in the right of his wife, although he take the Rents and Profits to his own use, yet this will not inable him to be a Commissioner within this Law, but he must have them in ejus usu & ad ejus usum.

A Feoffee to a use before the Statute of 27 H. 8. of uses, was no competent Commissioner within our Statute, for he had the Land then to another mans use; Neither was Ce­stui que use sufficiently qualified to be a Commissioner.

Two Tenants in common, or coparceners of Forty pounds Lands per annum are neither of them of sufficient ability to be Commissioners within this Law.

And the like Law is of two Joyntenants of Land of that yearly value, for though they be seised per my and per tout, yet in truth, and in a legal construction, either of them be sei­sed but of a moyety: So that if two Joyntenants, Tenants in common, or coparceners be seised of Lands of the year­ly value of Threescore pounds, either of them may sit by this Commission.

A Dean and Chapter, Major and Commonalty, Master of a Colledge and Fellows, which be seised of Lands and Tenements of the yearly value of a Hundred pounds per annum are not in respect thereof to sit.

[Page 196] If a Bishop, Dean, Chancellor, Archdeacon, Prebend, Parson or Vicar be seised of Lands in Jure Ecclesiae of the clear yearly value of Forty Marks, I suppose these may sit Commissioners by this Statute, for they have these Lands in eorum usu during the time they continue in their places, which in intendment of Law is for their lives; but yet by the intendment of Law they are not to sit in the execution of any humane affairs, and therefore seeing their persons are out of the intendment of this Law, so likewise should their Church livings be: but this is but a conceit, for although they be not persons having these Lands within the Statute of 32 H. 8. of Wills, which is a having to dispose, yet they may be within our Statute, which is a having to retain.

If an Executor have a Villain for years which purchaseth Land of Forty Marks per annum, he may sit in the execution of this Commission, for till his Lord enter he hath them to his own use; but if the Executor enter, then neither the Villain nor Executor can sit a Commissioner by this Law.

If an Alien purchase Lands of sufficient value in Fee, he in respect of his person is a disabled person to sit, neither is he a person having Lands, because he is not seised there­of to his own use, but to the use of the King; But if he be made a Denizen, then in his person he is made ca­pable.

The Warden of the Fleet who hath Lands belonging to his Office, may in respect thereof sit a Commissioner by this Law.

But shall a Termor or Lessee for years of Land of good value be thrust out of Commission, and be counted neither a sufficient Landed man, nor his Term and Lease to be ac­cepted moveable substance, and not only so, but that his Farm shall be a further disablement unto him, as the Statute of 13 El. cap. 9. seemeth to purport; the words of which Statute be, That no Farmer or Farmers for Term of years, of any Maners, Lands or Tenements, lying or being within the Precincts or Limits of any such Commission of Sewers, which [Page 197] be or which hereafter may be ordered and chargeable by any Laws, Ordinances and Constructions made or to be made by vertue of any such Commission wherein he or they shall be named or appointed Commissioner or Commissioners, not having Estate in Freehold within the Realm, of or in Manors, Lands or Tenements of the yearly value of Forty pounds, shall any time hereafter have power to sit, or in any wise intermeddle with the execution of such Commission or Commissions, during the time he or they shall continue or be such Farmer or Farmers of any such Maner, Lands and Tenements, and shall not have Estate of Freehold as afore­said; but that every such Commission having respect only to every such person or persons for such and so long time as he or they shall be or continue Farmer or Farmers of any such Manors, Lands or Tenements, shall be denied and judged in Law as void.

But yet in the closing up of that Statute of 13 El. there is a Proviso to this effect, Provided always, that it shall be lawful for any Commissioner, being also a Farmer, and not having Lands or Tenements to the clear yearly value of Forty pounds of Freehold, to sit by vertue of the said Commission, and have his voice and full authority with others to make and establish Ordi­nances for Sewers, according to the Tenure of the Commission touching and concerning all Lands and Tenements within the Precinct of every such Commission, other then such Lands and Tenements as he or they for the time hold and enjoy as Farmer, as he or they might have done before the making of that Statute; but he could not have sitten in execution of this Commission before the making of this Statute, unless he had besides his lease Lands to the value of Forty Marks per annum: And therefore a Lease for years is no inablement at all, but a disablement, as this Statute declares.

But the times when this having of Lands, &c. will suf­fice to qualifie a Commissioner to sit within this Law, is now to be considered of, wherein I am opinion, that the When having must be referred to the Then sitting: For the words of the Statute be, That none take upon him to sit, not ha­ving Lands to the yearly value of Forty Marks; so that if he have not Lands of that value when he is first made a Commissio­ner, [Page 198] yet if he have so much when he sitteth upon the Com­mission it will satisfie this Law; and if once he have Land of that value and sitteth, and after sell the Land away, or if they be evicted from him, he is then disabled to sit as a Commissioner by this Statute: And so if he were but Tenant for the life of I. S. and I. S. dieth, he ought not to sit: In 12 H. 7. 7. a Juror which was to pass upon tryal of Land was to have Forty shillings per annum of Freehold, and 12 H. 7. 7. after he was impanelled, and before he was sworn, he sold a­way his Land, and when he came to be sworn, he was chal­lenged for want of Freehold, but the chalenge was disalow'd, for after he was impanelled, his land (though after sold away) was chargeable with the issues which he after might lose in that matter; and with this agreeth 14 H. 7. 2. by Frowick: But our Statute is more precisely penned, which is, That none do presume to sit, unless he have Lands of that value, or be, &c. therefore when he sits he must have the Lands.

And if A. do bargain and sell his Lands to B. by Deed intended of that value, and before the Inrolment of the Deed B. do sit as Commissioner, and after the Deed is In­rolled, yet this doth not qualifie his offence, and the rela­tion of the working of this Deed doth not assist him to take off the penalty of this Law.

Also a man disseised is during the Disseisin disabled to sit, for he had not then power to devise the Lands by the Sta­tute of 32 H. 8. of Wills, for that Statute doth as ours doth, use the word Having in presenti, and not in futuro.

And thus much I thought convenient upon this occasion to deliver my opinion, when the Commissioner must have his Lands of Forty Marks per annum to inable him to sit as a Commissioner within this Statute.

To Treat of the utter Barister I need not, for when he hath taken the Oath mentioned in the Statute, he is an abso­lute and compleat Commissioner within this Law, to all purposes, although he have neither Lands or Goods, ac­cording as the Statute appointeth others to have.

The second question.

The second question in my case touching this Statute, is, Whether the Countess of Warwick be a compatible Com­missioner within this Statute.

Although it is uncouth in our Law to have women Ju­stices and Commissioners, and to sit in places of Judica­ture, yet by the Authorities ensuing you shall finde this a point worth insisting upon, both in Humane and in Divine learning; for in Genesis, Chapter the first, after the creation Gen. cap. 1. of all other creatures being finished, the Heavens adorned, and the Earth replenished, God said, Let us make man in our own Image, after our likeness, and let him have Dominion over the fish of the Sea, and over all the Earth, and every creep­ing thing that creepeth upon the Earth: So God Created man in his own Image, in the Image of God Created he him, Male and Female Created he them; and said unto them, Be fruitful and multiply, and replenish the earth, and subdue it, and have Dominion over the fish of the Sea, and over the foul of Heaven, and over every living thing that moveth upon the earth: This was the first Commission that ever was granted, and it passed under the Divine immediate Seal of the Almighty, & extended over the whole world; and by the vertue of the word Dominamini in the Plural number, God coupled the woman in Commission with the man. But in the 18 Cha­pter of Exodus, Verse 21. Jethro adviseth and counselleth Exodus 18. Moses his Son in law to provide out of all the people men of truth, hating covetousness, and place such over them to be Rulers of Thou­sands, Rulers of Hundreds and over Fifties & Tens; where by the word Men twice repeated by Jethro, and this place of Scri­pture seemed to exclude wholly from Government, and the former Commission extended over Fishes, Birds and Beasts, and neither over men nor women: And in the first of the Corinthians, Chapter 14. it is said by Saint Paul, Let the wo­men keep silence in the Churches, for it is not permitted to them 1 Cor. 14. to speak. And in Grendons Case in the Comment. fol. 497. Dyer saith, That women could not administer the Sacraments, nor were they permitted to say Divine Service. And in the second [Page 200] Chapter of Timothy, Verse 12. he saith, We suffer not the wo­man 2 Tim. to rule over the man; but this last of Timothy may be most aptly applyed to husband and wife.

I remember out of the Abbey Book of Evesham this Note worthy of observation, Quod Alicia Peeres Regis minio­na supra modum mulierum nimis supergressa, sui etiam sexus & fragilitatis feminiae Immemor, nunc Justiciarios Regis, nunc in foro ecclesiastico juxta doctores sedendo, & pro defensione causarum suadere & etiam contra jus postulare minime verebatur, unde pro­pter scandalum petierunt à rege in Parliament' tent' An. 50. Ed. 3. penitùs amoveri; but hereby I collect, that she was not in Com­mission with the Judges Temporal or Spiritual, but was a favorite of the Kings, and took upon her to intermeddle in businesses nothing concerning her: But whether the Text meant it for a woman to sit Judge in a Court of Justice, was contra modum mulierum, or because she sate there to wrest righteous Judgement, I refer to the readers of that History; For Debora was Judge of Israel, and Judged the people as the fourth of Judges hath it. Dyer indeed saith in Grendons Case, That divers Churches were appropriated to Prioresses and Nanneries, whereof women were the Governesses; whereby and by the said Chapter of the Corinthians it appears, that women might be admitted to have Rule and Government over the possessions and persons Temporal and Ecclesiasti­cal, but were not admitted to have curam animarum, nor to meddle with the administration of the Service or Sa­craments.

And for Temporal Governments, I have observed wo­men to have from time to time been admitted to the highest places; For in ancient Roman Histories I finde Endo­chia and Theodora admitted at several times into the sole Government of the Empire: and here in England our late famous Queen Elizabeth whose Government was most re­nowned: And Semiramis governed Syria; and the Queen of the South which came to visit Solomon, for any thing that appears to the contrary, was a sole Queen: And to fall a degree lower, we have presidents that King Richard [Page 201] the first, and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regents of this Realm in their absence in France: And the wise and renowned Lady Margaret, Countess of Richmond was put in Com­mission, and Humfrey de Bohune Earl of Hereford was by Tenure Constable of England, which is a Judge in Martial affairs, and he died without issue Male, by reason whereof the Office (amongst other things) descended to his two Daughters and Co-heirs: And in the 12 of Elizabeth, in Dier, it is holden for Law, That although this was an Office of Justice, yet they might execute the same by deputy; for in truth women were unfit Martialists to judge of matters of that nature; and yet it is clear, a deputy doth nothing in his own name, but in the name of his Master or Mistriss, therefore the Martial Court was to be kept in their names: But yet I will descend a step lower; doth not our Law Tem­poral and Spiritual admit of women to be Executrixes and Administratrixes? and hereby they have the rule or order­ing of great Estates, and many times they are Gardianesses in Chivalry, and have thereby also the government of many great Heirs in the Kingdom, and of their Estates.

And in 10 H. 7. a man devised his Lands to be sold by a 10 H. 7 woman, and died, and she sold the same to her husband: So by these Cases it appeareth, that the Common Law of this Kingdom submitted and committed many things to their government; yet the Statute of Justices of the Peace is like to Jethroes counsel to Moses, for there they speak of men to be Justices, and seemeth thereby to exclude women: But our Statute of Sewers is, Commission of Sewers shall be granted by the King to such person and persons as the said Lords should appoint; So the words persons stands indifferent­ly for either Sex; And therefore although by the weakness of their Sex they are unfit to travel, and they be for the most part uncapable of learning to direct in matters of Judicature, for which causes they have been discreetly spared, yet I am of opinion, for the authorities, reasons and causes afore­said, that this honorable Countess being put into Com­mission [Page 202] of the Sewers, the same is warrantable by the Law; and the Ordinances and Decrees of Sewers made by her and the other Commissioners of Sewers, are not to be impeach­ed for that cause of her Sex.

And I conclude here, that although in discretion women have been secluded as unfit, yet they are not in Law to be excluded as uncapable.

If an Infant above the age of Fourteen, and under the age of One and twenty be made a Commissioner, his infan­cy shall be no cause to disable the Laws made by him; yong Daniel was Judge over both the Elders. And in Little Brook, fol. The case is, a Parson or Prebend being within age made a Lease for years of his benefice, and would but could not after avoid it for his Nonage, for seeing the Church had made him of full age to discharge the spiri­tual Office, our Common Law thought it fit to inable him to dispose of his Temporalties: and in 21 H. 7. fol. 12 & 13. 11 H. 7. the case is put by Bridges, and confirmed by Justice Sylliard, and was not denied by any, that an Obligation made by a Major and Commonalty, Dean and Chapter, Abbot and Covent, shall not be avoided for the Nonage of the Major, Dean or Abbot; yet all these serve in place of government, howbeit in the said matters their Nonages shall not impeach them: And in the third of Isaiah it is said, I will give them 3 Isa. children to their Princes, and babes to rule over them; noting thereby an unfitness in them to govern, but debarred them not of the place: and of this matter this shall suffice.

But now admit, as oftentimes it falls out, that Com­missioners shall sit in the execution of this Commission of Sewers, which have not taken the Oath, which have not Lands of value, or which is not a free Citizen, and yet there be Ordinances, Decrees, and Laws made at those times; Now whether those Laws and Ordinances so made by a dis­abled Commissioner be void or not, is the question; or whether the disabled Commissioner shall only undergo the penalty of Forty pounds.

There was a Statute made in 6 H. 8. cap. 10. whereby it 6. H. 8. [Page 203] was Enacted, That the Chancellor of England for the time be­ing should make no Commission to any person or persons (except he had Lands and Tenements of Estate of Freehold to the yearly va­lue of Twenty pounds, or else be Justice of the Quorum) within any of the shires where he should be made a Commissioner; and if any such Commission were directed to any person or persons not having Lands or Tenements to the yearly value of Twenty pounds, or not being one of the Justices learned of the Quorum, as aforesaid, That then every such Commission, and all Presentments and Accusations had and presented before any such Commissio­ners, be utterly void and of none effect.

But this Statute is in time expired long ago, and there­fore it is no interruption to our Commissioner; for although the Statute of 23 H. 8. which I read on hath a Clause in it in effect, That all & every Statute and Ordinance heretofore made concerning the Premises, made in the time of the said King, or of any of his Progenitors, not being contrary to that Statute, should stand in force; yet these words do not set on foot a Statute expired in time, as that of 6 H. 8. is: Also in the said Sta­tute of 13 Eliz. if a Termor or Lessee for years be in Com­mission, all Laws made which concern Lands whereof he is a Farmer are void as to him vide antea.

But to relie on our Statute of 23 H. 8. in my opinion it 23 H. 8. doth not avoid any of the Laws and Ordinances made by disabled Commissioners, but doth onely inflict the punish­ment and penalty of Forty pounds a piece upon every of them, for every time they and every of them shall sit in or about the execution of this Commission; yet it seemed in the case de Jure Regis Ecclesiastico, That whereas the Statute of first of Elizabeth which authorized the Queen to grant Commissions to natural born subjects, that if she had granted the same to an Alien, that acts done by him had been void.

But now my case proceeds to the next point or step, and that is touching the Law and Ordinance made to race the said Were; I inferred this clause in my case, because I had not formerly occasion or fit opportunity to treat of the Lets, [Page 204] Impediments and Annoyances which be contained within this Statute of 23 H. 8. and therefore I took this occa­sion to close up this days exercise with the discourse of them.

These by name are such Impe­diments & An­noyances as this Statute speaketh of,

• 1. Streams.
• 2. Mills.
• 3. Bridges.
• 4. Ponds.
• 5. Fishgarths.
• 6. Mildams.
• 7. Locks.
• 8. Hebbingweres.
• 9. Hecks, and
• 10. Floodgates.

And the rest must be cōprised with­in these general words (videlicet) Other like Lets and Impediments.

And the discourse upon all these will rest most upon the Statutes heretofore made touching the same.

And the first Statute thereof made is in Magna Charta, Mag. Chart. cap. 23. cap. 23. Omnes kidelli deponantur de cetero penitus per Thame­siam & Medweyam & per totam Angliam nisi per costeram ma­ris; This extends not to the Kings, keddles per keble in 13 H. 7. 35. what this word kidellum signifieth, appeareh by the title of that Statute, which is Weres.

The next Statute to this is, 25 Ed 3. cap. 4. which doth Enact, That all Mills, Weres, Stanks, Stakes & Kiddels were levied 25. E. 3. and set in the time of King Edward (that Kings Grandfather) and after, whereby Ships and Boats were disturbed, that they might not pass the Rivers as they were wont, should be cut and pul­led down without being relieved.

The said first Statute is general, that all Weres should be put down but by the Seacosts, yet this word (All) are intended of such only as were erected without lawful War­rant; and the said Statute of 25 Ed. 3. doth explain the generality of the said former Statute; For thereby it ap­pears, That Weres erected in Navigable Rivers where Ships and Boats were wont to sail, should be extirped, because they were a hinderance to Navigation; but this [Page 205] extends only to Navigable Streams which have been Navi­gable by use and Custom; and it is manifest by this Statute, that these Weres which were so to be put down must be only such as were erected in the time of Ed. the first and sithence, because those seemed to be erected without lawful authority, and being but erected in those times, they had not the countenance of Custom and Prescription to strengthen them.

The next Statute in time is that of 45 Ed. 3. cap. 2. which confirms the said Statute of 25. Ed. 3. and then adding thereto, that if any such annoyance be done, it shall be pulled down, and that he which shall relevy such annoyance, and be thereof duly attainted, he shall incur the penalty of One hundred Marks to the King, to be levied by the Estreats of the Exchequer; and the penalty is thereby given for the inhauncing of such Weres, Mills, Stanks, Stakes and Kiddels: This Statute is in part a confirmation of the said Statute of 25 Ed. 3. and in other part thereof it is a new 45 Ed. 3. Act in these points.

1 First, in the forfeiture of a Hundred Marks.

2 Secondly, this is the first Statute in my opinion made against inhauncing of such things which are counted an­noyances.

3 And Thirdly, it gives the like penalty against him which shall relevy the annoyance, as against the inhauncer: And because this Statute depends upon the said Statute of 25 Ed. 3. it extendeth therefore but to Navigable Streams.

The Statute of 1 H. 4. cap. 12. is a Statute in these points of great consequence, and it doth also confirm the said two former Statutes of Ed. 3. and doth thereto also make additions in these insuing points:

1 First, that Justices should be assigned to survey and keep the waters and great Rivers, and to correct and amend the defaults, as well by survey, advice and and discretion, as by inquest.

2 Secondly, to survey the Weres, Mills, Stanks, Stakes and Kiddels in old time made and levied before the time of [Page 206] Ed. the first, and them which they should finde too much in­haunced or straitned, to correct, pull down and amend; saving always a reasonable substance of Weres, Mills, Stanks, Stakes and Kiddels so in old time made and levied.

3 Thirdly, and if any such annoyances of Weres, Mills, Stanks, Stakes and Kiddels of passages, and straitning in old time made and levied, be adjudged and awarded by the said Justices to be pulled down & amended, he that hath the Freehold of the same shall make thereof Execution at his own costs within half a year after notification thereof made, upon pain of a Hundred Marks; and he which shall relevy, or inhaunce or straiten them against the said judgement, shall forfeit One hundred Marks to the King, to be paid into the Exchequer.

4 Fourthly, and he which shall finde himself grieved by Execution or otherwise in this behalf against right and reason, he may pursue and have right.

1 First, by this Statute I collect these matters; First if that a Were, Mill, Stank, Stake or Kiddel be newly or of late years built and erected in any Streams without Warrant or lawful authority, the same may be caused to be pulled down by Order of the Commissioners of Sewers, at the costs of the party which erected the same.

2 Secondly, If Weres, Mills, Stanks, Stakes or Kiddels have stood and been time out of memory in Rivers or Streams, and so have Warrant from Custom and Prescri­ption, these may not be cut up or pulled down by the Com­missioners of Sewers, because long use and Custom, which is a Law of this Kingdom, hath established them.

3 Thirdly, If there have been Weres, Mills, Stanks, Stakes or Kiddels time out of memory in Rivers or Streams, which of late years have been inhaunced, inlar­ged, or otherwise exceeded the ancient size and accustomed compasse, the excesse in those cases is only to be abated and pulled down; but so far as the ancient Size did extend to is not to be impeached: For the words of the said Statute [Page 207] be, That there be reserved always the reasonable substance thereof in old times accustomed.

And in my opinion the generality of the said Statute of Magna Chart. cap. 23. is restrained by the succeeding Statutes, if the exposition should have been as large as the letter is.

And these three distinctions do fully declare the true effect of the said preceding Statutes.

Then next in Order of time is the Statute of 4 H. 4. 4 H. 4. cap. 11. which reciteth, That by Weres, Stakes and Kiddels in the water of Thames, and in other great Rivers through the Realm, the common passage of Ships and Boats be disturbed, and much people perished; and also the yong fry of fish destroyed, and against reason wasted and given to swine to eat; Therefore this Statute Enacts, That all former Statutes thereof made be holden, kept and put in execution.

Here be two things which none of the former Statutes took order for;

1 The one is the perishing of the Kings people;

2 The other the destroying of the Fry of Fish which were occasioned by the erecting of these Weres, Mills, &c. Yet these are businesses which are otherwise provided for, and be not pertinent to these Laws of Sewers: And there­fore I shall passe them over without any other further expla­nation thereof.

The Statute of 12 H. 4. cap. 7. doth confirm all the said former Statutes made against Lets, Impediments and An­noyances; 12 H. 4. And doth further Enact, That if contrary to the Award, Rule or Judgement of the Commissioners made according to the Statute of 1 H. 4. it be found, that any Weres, Fish­garths, Mills, Mildams, Locks, Hebbingweres, Stakes, Kid­dels, Hecks or Floodgates be made, levied, inhaunced, strait­ned or inlarged against the said Statute, the offendors therein con­trary to the aforesaid Award, Rule and Judgement being warned by the Sheriff or under Sheriff of the County upon a Scire faci­as to that purpose directed where those annoyances be, and within three Moneths after such garnishment do not wholly amend, break down and avoid the said making, levying and inhauncing, [Page 208] straitning or inlarging, That the party being defective in that behalf shall forfeit One hundred Marks to the King, to be levied by Estreats out of the Exchequer; and if the Offendor, his Heirs, Assignee or Assigns, or any of them do defer or con­tinue the same default, contrary to the Award, Rule and Judge­ment of the Commissioners, he or they shall forfeit One hundred Marks, the one moyety to the King, the other moyety to the party that will sue for the same.

And also it was further enacted, That if any person or per­sons, other then such against whom such Award, Rule or Judge­ment was made, or any of them, do presume to occupy or continue any of the Weres, Fishgarths and Impediments aforesaid, or other incumbrances, he shall forfeit for every default for every Moneth One hundred Marks, the one half to the King, the other half to the party that will sue.

It appeareth, that this Statute speaketh of Milldams, Locks, Hebbingweres, Hecks and Floodgates, which the other Statute never speaketh of; so in extent thereof it hath more inlargement: And in my opinion all the foresaid Statutes did extend only to Navigable Streams and Rivers, with ships and Boats.

In the Tenth Report of Sir Edward Cook, the case of Che­ster Mills upon the River of Dee, was as insueth, That a Causey or Milstank of stone in the River of Dee, in the City of Chester, was made and erected for the necessary maintenance of certain Mills, some of the Kings, others of the Subjects, which stood at the end of the Causey; were of late by the Decree of the Commissioners of Sewers Ordered, That a breach therein of ten Roods or Pearches should be made, which Causey or Milstank was by the agreement of all parties erected before the time of Edw. the first, and so had conti­nuance without any inhauncing or exaltation: And whether this Decree was warranted by any of the said Statutes or not, was the question, which was referred by the Lords of the Counsel to the two Chief Justices, Fleming and Cook, and to Tanfield the Lord Cheif Baron, to be considered on; and the said Chief Justices and chief Baron declared their [Page 209] opinion, That the said decree was not warranted by any of the said Statutes; for they said that the two Statutes of 25 Ed. 3. & 45 Ed. 3. extended but to such impediments as were set up and erected in the time of Ed. 1. and after; and that the generality of the Statute of Mag. Char., cap. 23. was restrained by these two Statutes; And that the Statute of 1 H. 4. exten­ded to such Weres, Kiddels, &c. and other lets as were ere­cted before the Raign of King Ed. the first, and which have been inhanuced and exalted sithence, and so was out of all those Laws, because there was no such inhauncing.

And the Statute of 23 H. 8. which I now read on, did not alter the former Statutes in these points; But provided, That all and every Statute, Act and Ordinance heretofore made concerning the Premises in that Act recited, not being contrary nor before then repealed, should stand then in force: But the said Judges did hold opinion, that all the said Statutes stood unrepealed, and acordingly made their Report to the Lords of the Councel.

There be many private Statutes made for the abating pri­vate Weres in some Streams which are not within my intent to recite, further then by naming of them, because I take it they are not confirmed by the Statute I read on; As 11 H. 7. cap. 5. Southampton: 14 H. 8. cap. 13. 23 H. 8. cap. 18. Havens: 25 H. 8. cap. 7. for killing Fry of Salmons, 27 H. 8. Rastal Havens 9, 10, 11.

In 19 Jacobi Regis there was a great Cause depending in the Court of the Dutchy at Westminster, between Benedict Hall Esquire, Plaintiff, and Iohn Mason, George Worral, and Thomas Powel, Defendants; which was in effect as followeth, That Queen Mary was seized of the Manor of Monmouth, with the Appurtenances in that County, and of a Free fishing in the River of Wye, and of a Were and a Fish yard there, which were erected in the time of the said Queen, in the place where an old Foundation of an ancient Were did stand: This Were had been letten by the said Queen, and also by Queen Elizabeth, under the Seal of the said Dutchy by yearly Rents, and so there were ancient presidents shewn [Page 210] in that Court, whereby it appeared, that the ancient Were there had been letten to Farm by the Earls and Dukes of Lancaster, and by the Kings and Dukes for a long time for yearly Rents: So that it was manifest that it was an ancient Were time out of memory: And this Were and Fishyard, and the Profits of Fishing were letten by the Kings Maje­sty that now is, under the Seal of the Dutchy of Lancaster, in the Tenth year of his Raign, to one Iohn Abrahall Esquire, for One and thirty years, for and under the yearly Rent of Six pounds thirteen shillings and four pence payable to his Majesty his Heirs and Successors; And the said Abrahal being so thereof possessed, did afterwards in the Tenth year assign the same to one William Hall Esquire, by reason where­of the said William Hall was thereof possessed; and in the 12. year of this King, made his last Will and Testament, and did thereby ordain the complainant his Executor, and after dyed; by and after whose decease the Complainant came to be possessed of the said Lease and Term therein to come; and in the Nineteenth Jacobi Regis, the Commissioners of Sewers in those parts caused a Jury to be impanelled and sworn; touching this Were & Fishyard, and gave therein a Verdict to this effect; that is, That Benedict Hall the complainant was pos­sessed of the said Were, called Monmouth Were, upon the River of Wye, which was excessive high and hurtful, and was an impedi­ment to the common passage of Boats, Barks and Ballangers up and down the said River, and by means thereof they could not passe but in great danger, which if the said Were were not, Boats of two or three Tuns might passe the River; and that the said Were had been the death & drowning of one of the Kings Subjects, and is the cause of the scarcity, dearness and want of Salmons, and other fish within the said River, by reason many of them were taken in gins of the said Were, when they were out of season, and that the same was a great abuse, wrong, enormity and annoyance to the whole Country.

Whereupon the said Commissioners made an Ordinance or Decree, setting forth thereby in effect as followeth, That whereas it did appear to them, as well by the examination of Wit­nesses, as by the said Verdict of the Jurors, and by their view, [Page 211] that the said Were was a great let and hinderance to the common passage of Boats and Ballangers up and down the River, indan­gering of the lives of the Kings Subjects, and to the destruction of Fish, as the Salmons and Fry thereof; They therefore Or­dered, That the said Were should be overthrown, and that the Timber and Stone thereof should be removed, whereby the Channel should be cleared for passage of Boats; And accordingly did di­rect their Warrant under their Hands and Seals to the defen­dants, Authorizing them thereby to overthrow the said Were, which they performed accordingly: And all this mat­ter of the verdict of the Jury, and Decree of the Commissio­ners were set forth at large in the Defendants answers; and after examination and publication of witnesses, the Cause came to be heard in the said Dutchy Court before Sir Hum­frey May Knight, Chancellor of the Dutchy, Sir John Den­ham Knight, one of his Highness Barons of the Exche­quer, an assistant to that Court, and Sir Tho: Chamber lain Knight, one of the Kings Justices of his Bench, another assistant of the said Court, and Sir Edward Mosley Knight, Attorney of the said Court, who were of opinion, That the said Were being an anclent Were by Prescription and Custom, it ought not to have been overthrown by the De­cree of the Commissioners of Sewers, and that the said verdict of the Jurors was defective, because though they presented the said Were to be over high and inhaunced, yet in regard they did not present in quanto nor in qua parte, the said Were was inhaunced above the ancient assize, therefore they esteemed the said Verdict of no validity.

But now it comes next in time and turn to declare my opinion touching and concerning Bridges, Mills, Mil-Dams, Milstanks, Floodgates, Hecks, Locks and Heb­bingweres, which in the said Statutes be set forth for Lets, Impediments and Annoyances, wherein they are to receive their exposition according to the said cases of Weres, with­out other distinctions; for if they have had continuance time out of memory, then are they the proper and peculiar inheritances of the King, or of his Subjects, allowed by [Page 212] ancient Custom, confirmed by long use, and to remain established without overthrowing or destroying: But if they have been inhaunced or inlarged over their ancient and ac­customed assize, then the inlargement and excess is onely to be abated, and no more; for the Statute of 1 H. 4. saith, That there must be left sufficient substance of the ancient: And if any new Were, Stank, Stake, Floodgate, Kiddel, or other thing have of late been erected on the Rivers, which is an annoyance or hurtful, then the same may be ordered by the Commissioners to be abated, overthrown, destroyed and pulled down, because the same was erected without lawful warrant or authority: And so as I take it, these few distin­ctions do fully declare my opinion touching those matters.

The Statute of 23 H. 8. which I read on touching and concerning Lets, Impediments and Annoyances, hath these words in it in effect, And the Commission giveth Authority to Edmond Lord Sheffield, Sir Philip Tyrwhit, Sir Nicho­las Sanderson, Knights and Baronets, Sir Richard Aurcots, Sir John Thorold, Sir John Read, Sir Charls Bouls, Sir Ralph Maddison, Sir William Hansord, Sir Francis South, Knights, Thomas Tyrwhit, John Bolles, and Nicholas Hamerton, Esquires, whereof the said Baronet and Baronets were of the Quorum, to survey the Walls, Streams, Ditches, Banks, Gutters, Sewers, Goats, Calceys, Bridges, Trenches, Mills, Mildams, Floodgates, Ponds, Locks, Hebbingweres, and other Impediments, Lets and Annoyances, and the same to cause to be made, corrected, repaired, amended, put down or reformed, as cause shall require, after their wisdoms and discretions; and therein to ordain and do after the form, tenor and effect of all and singular the Statutes or Ordinances made before the first day of March, in the 23 year of H 8. touching the Premises, or any of them; as also to inquire by the Oaths of honest and lawful men of the said shire or shires, place or places, where such defaults or an­noyances be, as well within liberties as without, by whom the truth may rather be known through whose default the said hurt and damages have happened; and who hath or holdeth any Lands or Tenements, or Common of Pasture, or profit of fishing, or hath [Page 213] or may have any hurt, loss or disadvantage by any maner of means in the said places, as well near to the said Dangers, Lets and Impediments, as inhabiting or dwelling near about the said Walls, &c. and Impediments aforesaid, and all those persons to tax, assess and distrain.

In a former clause of this Statute, the Commission giveth power to survey the Walls, Banks, Ditches, Gut­ters, Sewers, Goats, Calceys, Bridges, Streams; In which clause these as necessary Defences are ordered to be re­paired.

Then comes another clause, wherein these things are re­cited as Lets and Impediments, videlicet, Streams, Mills, Bridges, Ponds, Fishgarths Mildams, Locks, Hebbing­weres, Hecks and Floodgates; So that by these two clauses, the first sort were to be maintained and not destroyed, and the second sort should have been destroyed and not re­paired.

And if these two first clauses had been alone, then the Com­missioners had been bound to maintain the one and destroy the other, without any toleration; but then came in the said third clause, which is the clause of moderation, and there­in as well the Defences, as the Lets and Impediments, come all in one clause promiscuously put together; and so the words (amend, correct, repair and put down) is therein referred to them all: so as in my opinion all defences, as Walls, Banks, Sewers, Calceys, Goats, &c. be not to be main­tained, because in tract of time some may prove unnecessa­ry and unuseful, which for that cause may be pulled down: so all Mills, Mildams, Floodgates, Weres, Stanks, Stakes, Kiddels, and such like, are not to be put down and over­thrown, but such as are ancient and are thereby grown to be the proper inheritances of men, and such also which are useful and necessary are to be maintained, kept and repaired; for in some great Havens and Ports, great abundance of Piles and Timberposts are set in the waters to stay the rage, force and violence of the waters for the safegard of the Port and Haven.

[Page 214] It were a very ridiculous exposition of this Law, to urge the Commissioners to overthrow those things which are helpful; and not hurful; for this Statute did foresee, that these Mildams, Stakes, Stanks, Floodgates, Weres, &c. were not at all times and in all places hurtful, and therefore was the said clause of the Statute inserted, which gave the Commissioners power to put down such as were Lets and Annoyances in truth, and where they were used for strengths and were of good use to maintain the same: And this construction I take it is fully maintained by this Statute, but more especially by the Statute of 7 Jacobi, cap. 20. where Peres, Piles, Jetties, and the like, set for fortificati­ons 7 Jac. Reg. cap 20. and strengths, are expresly ordered to be main­tained.

And upon this part of this Law I do collect these insuing matters:

1 First, that if one do erect and build a Were, Mill, Mildam, or other thing on a River Navigable, to the hin­derance of Navigation; or if there was an ancient Were which was inhaunced of late years, the Commissioners of Sewers are to order him that did erect the one, and he which did inhaunce the other, to pull down the first, and to abate the excess of the other at the Costs and charges of the owner: and if he or his Assigns or Heir, shall contrary to the Decree, Order or Judgement of the Commissioners, after the same hath been reformed, relevy the same again, or do continue the same contrary to order, the punishment of One hundred Marks is to be imposed upon the offendors, as by the Statute of 1 H. 4. and 12 H. 4. formerly appeareth.

And if one which is a stranger of his meer malice or own 1 H. 4. 12 H. 4. wrong doth pitch down Piles, or set down Stakes in the Rivers and Streams, he is to be fined or amerced for this offence, as the case shall require, and he is to be ordered to remove the Nusans at his own costs and charges; and if it cannot be found out who did the Nusans, then the Com­missioners of Sewers are to order those to remove that an­noyance which in all likelyhood are to sustain most damage [Page 215] thereby, Et ita factum fuit, in 42 lib. Assiz. plac. 15. and 42 lib. Assiz. this Statute extendeth to Rivers and Streams Navigable, as well as to such as be not Navigable.

And touching the removing of Nusances, I shall put the Commissioners some presidents ruled and adjudged in our Books of Law which come fully to the purpose of the matters and things I now treat of.

In 32 Ed. 3. fol. 8. an assize of Nusans was brought by A. against B. for that B. had made a Trench over a River, 32 Ed. 3. and drew away thereby part of the waters and stream an­other way then that which it did formerly use to run, and thereby surrounded the grounds of A. and the assize passed for the Plaintiff; & it was adjudged, that the waters should be re­moved into the ancient current & channel at the costs of the Defendant, and the Plaintiff recovered his damages Et quod defendens capiatur; out of which case I observe these things:

First, though an assize was a private Action, yet the Nu­sans was tam querenti quam populo to the Plaintiff, for drowning and surrounding of his grounds; to the people, in changing or diverting the ancient course of the waters, so that for the people the offendor was ordered to reform the Nusans, to the King he was fined, and the Plaintiff for his own pri­vate wrong recovered his damages.

In 19 Ed. 3. lib. Assize, plac. 6. A presentment was found by Jury before Commissioners, that certain persons by 19 Ed. 3. name had turned the course of the River of Lee, which is there termed the Kings Stream, and runs from Ware to Waltham, and so to London, and had fixed and pitched Piles and Stakes therein, by means whereof Boats and Ballangers were hindred in their passages up and down the River, and upon this Presentment it was awarded, that those persons which were presented by name, and which had done part of the Nusans, should reform the same; and because some of the parties names could not be discovered which had done other part of the said Nusans, It was Ordered, That the She­riff should be commanded by Writ to him to be directed to reform that part of the Nusans, taking therein to his assistance [Page 216] those persons who had grounds next adjoyning; And quod defendentes sint in miserecordia dom' Regit, because the Nusans was not found to be done by force.

In 19Ed. 3. fol. 23. in the Action upon the Case for a Nusans done, the judgement in part was, That the Nusans should be removed & cum hoc concordat, 7 H. 4. 8. upon these three cases I observe, 7 H. 4.

That be the Action private or popular, always one part of Judgement was, That the Nusans should be removed at the costs and charges of him or them which did it.

Therefore these cases do fully maintain my opinion for­merly delivered: And although in all the said cases it appear­eth, that there was a legal course taken to remove the Nu­sances, yet there is another course alowed of by the Law, and that is by abating of the Nusans, in pulling or cutting the same down; and the Law is expresse so in the point in 9 Ed. 4. fol. 35. as if it be a Nusans done to I. S. he or some 9 Ed. 4. other by his directions may overthrow the Nusans; but if it be done ad nocumentum populi, as in the high or royal streams, then any person prejudiced thereby may abate the same.

To make a stream navigable.

BUt it hath been objected to me by way of Interogation, Can the Commissioners of Sewers make an unnavi­gable River or Stream to become or to be made Navigable by these Laws of Sewers, yea or no? Touching which I shall deliver my opinion as followeth:

If this could have been done by the Commissioners of Sewers, then what should it have needed to have procured Acts of Parliament for the doing thereof, as 9 H. 6. cap. 9. to make the River of Lee Navigable, and 6 H. 8. cap. 17. a Statute to make the River at Canterbury Navigable; and and in 31 H. 8. cap. 4. to make the River of Ex near Exeter Navigable: and 27 Eliz. cap. 20. to make a River Naviga­ble at Plymouth; and in 3 Jac. 10. cap. for making Thames [Page 217] Navigable in the Counties of Oxford, Berks, Wilts, and Glocester: These in truth are good Arguments, but not con­vincing Proofs; for I am of opinion, that if Streams can­not be made Navigable unless there were certain Mills, Weres, Stanks or Kiddels removed which be the Inheri­tances of private persons, and have had continuance time out of memory, then directly the Commissioners of Sewers have not power to raze or impair these by the removing thereof, to make the Stream Navigable: But in these cases a new private Act of Parliament must be obtained for the effecting thereof, which was the occasion many of the said private Statutes were obtained: But if none of these In­heritable incumbrances stand in the way, but that by the cleansing or deeper casting of the Channel the same may be made Navigable, Then I am of opinion, the Commissio­ners of Sewers have power to do the same, and there be words in our Statute will bear this Exposition (videlicet) And to cleanse and purge the Trenches, Streams, Sewers, Gutters and Ditches, in all places necessary.

And herewithal I intend to close up this days exercise with this short conclusion; that is, That E. was no sufficient Free­man, nor was resciant, nor had goods of value to make him a competent Commissioner; That notwithstanding B. and C. and the Countesse of Warwick were competent Commissio­ners, and they joyning with Three of the Quorum had power to make and ordain Laws of Sewers; and because this Were was newly erected, therefore the Law and Ordinance made to raze it and to pull it down was a good Law, and war­ranted by this Statute, &c.

GEnerous Auditors, my fellows and friends of this most famous and renowned Inns of Court, I have sailed so far within the Land, that my ship hath taken up her har­bor in the Inland streams, and I my self am got up to the highest Mountains, to the end I might take the view and survey of all my former days labors; and this being the last day of my reading, I must now make my accompt to you of my Stewardship: The Talent which was delivered me when I entered upon my first days Exercise, was this worthy Sta­tute of Sewers, which I have put forth to the best use I could in my poor skill and understanding; But in the casting up of my Accompts, it may be it wil come short of your ex­ctations; if it do, I pray you help to increase it out of your a­bundant store; and consider with your selves, that your Rea­der took in hand to read upon a Maiden-law, which never be­fore this time abide his Exposition in any Inns of Court, and our Law Books are exceeding scarce in the handling of mat­ters of this kinde & nature; and so I wanted those means and helps which many other Readers have had, who have taken upon them to make their readings of Statutes formerly read on, and which have received a more plentiful Exposi­tion in our Books and Terms of the Law then this of mine hath done.

It hath been the ancient custom of this house, for the Reader in his last days Exercise to make a brief repetition [Page 220] in the maner of an Index, of the most substantial heads of his Statute, and of his divisions: And because every profession is most graced when it is followed and trode out in the steps of learned Predecessors, I intend therefore to be no changling, nor mean I to produce or bring up new usages, least old Custom should forget what her self had been: In this maner therefore do I make my Repeti­tion;

This is the extent of my accompt, wherein I think I have done my self some wrong in making so short a Breviate, in omitting many things which I truly took pains in; but because you were all present and privy to my layings out, I hope though I have omitted them in my extreats, you will allow me them in Summa totalis.

But by your good favors I intend not to break Custom or Promise in any thing; for I have some stock more left, which I told you when I began I had cast under hatches, which now also I mean to distribute amongst you; And because there is some part of this as yet left untreated of, I will now therefore proceed to the unfolding thereof.

And the same consisteth in these words of the Law, That the Commissioners hereafter named in any Commission, ac­cording to the purport of the same, have full power and autho­rity to make, constitute and ordain Laws, Ordinances and De­crees, and the same Laws and Ordinances so made to repeal, re­form, amend and make new, as the cases necessary shall require in that behalf.

So that whereas other Judges have power onely Jus dice­re, these Commissioners have also power Jus facere; yet this Statute gives not the Commissioners of Sewers abso­lute power and authority to make and ordain Laws but se­cundum quid; for these Laws which they are to make, must be for the safegard, conservation, redress, correction and reformation, and more then these, they must be necessa­ry and behoofful; so they must not be made out of self-will, and affection, but after their Wisdoms and Dis­cretions.

Wherein I conceive, that never a sentence in this Statute is seasoned with more variety of caveats and grave dire­ctions [Page 228] then this Statute is in this very clause of making new Laws; so that these Laws ought to be made to amend, not to make worse; they must be necessary, not nugatory, they are to be composed with wisdom, and disposed of with good discretion, and they ought chiefly to be made Pro bono publico, and not Pro privato alicujus.

New Laws are to be ordained for these purposes onely, that is, either for making and erecting of new necessary de­fences, or for the overthrowing of some unnecessary Lets and Annoyances, or for the continuance of the ancient.

And in alteration, new addition, or diminution of a Wall, Bank, Sewer, Goat, Calcey or other Engine, a new Law is to be made for the effecting thereof.

Also if an ancient Wall, Bank or other Defence be worn out of use, and is altogether unnecessary; but in the Wis­dom and Discretion of the Commissioners, and that a new one in another place were more convenient for the safety of the countrey; this must be all done by a new Law.

But here a matter of Law will arise, and another matter of great caution: The matter of Law will rest in this, Whe­ther an ancient Wall, Bank or other Defence which is grown out of use, may be overthrown and pulled down; and in my opinion it may, by the said third clause of the Statu [...]e, wherein power is given either to maintain them or to put them down.

But because I have formerly handled this point, I will therefore proceed to the caution, which is of great weight and importance; for whereas one or moe persons are by Tenure, Covenant, Custom, Prescription or otherwise bound and tied to repair and maintain the said ancient Bank, Wall, Sewer, or other Defence at their several and peculiar charges; if then the Commissioners of Sewers should make a Law to overthrow or remove the same, and should execute the same accordingly; and then should make a Law to erect and build a new Wall, Bank or other defence in another place more convenient, yet the parties which were bound to maintain & repair the former old Defences, should not so be [Page 229] tied and bound to repair and maintain these new erected ones, because by the destroying of the ancient Walls and Banks, the Prescriptions, Customs, Tenures and Cove­nants were either utterly dissolved, or otherwise suspended; & the charge for the erecting & maintaining of the new ones are to be laid on the Level: So that it behoveth Commis­sioners to be careful in these affairs, else things in the con­clusion may fall out contrary to their expectations; for it is well said, That Rerum progressus ostendunt multa quae in initio nec praecaveri aut praevideri possunt.

In making new Laws and Ordinanes these things are also considerable;

1 First, what the matter of the Law is which is to be Enacted.

2 Secondly, when the matter is known, then to weigh it well, whether if it be made, if then it will prove neces­sary and behoofful for the good of the people; and this necessary point is to be scanned by the counsel and advise of the most discreet and experienced persons, and of the best tryed judgements in matters of this native.

3 And thirdly, to consider what charge the work will cost, for the which this Law must be made; for in Scriptures he is not counted sapient that before he build a house will not first count the charge of it.

4 And fourthly, what persons must bear this charge, least it prove too burthensome; and this must be directed by the ability of the people which are to be charged, and by the the safety and commodity they are to have by the work.

I observe also that this Statute useth three words, which are all powerful in signification and operation, videlicet, Laws, Or­dinances and Decrees; and I think it fitting for me, so near as I can, both to deliver the definitions of them, and the diffe­rences between them.

Laws and Decrees made for sale of Lands by the Powers and Authorities of this Statute, are to be made and ingrossed into Parchment, and certified under the Seals of the Com­missioners into the Chancery, and the Kings Royal assent had thereto, under the Privy Seal, shall also stand good and effectual.

And all Laws and Ordinances written in parchment, and [Page 232] indented, and under the Seals of the Commissioners, where­of the one part shall remain with the Clerk of the Sewers, and the other part to remain in such places as the Commis­sioners should appoint (notwithstanding the same be not certified into the Chancery, nor the Kings Royal assent be had thereto) shall continue in force till the same shall be al­tered, 13 Eliz. cap. 9. repealed or made void by another Commission of Sewers, although the former Commission by the which these Laws were made were determined by Supersedeas.

The Commission is to continue for ten years from the date thereof by force of the Statute of 13 Eliz. yet not­withstanding 13 El. all Laws and Ordinances which are written in parchment, indented and sealed by the Commissioners of Sewers, without certifying into the Chancery, or the Kings Royal assent had thereto, shall notwithstanding the deter­mination of the Commission by the expiration of the said ten years, continue in force for one whole year next insuing, to be put in execution for that time by six Justices of the Peace, whereof two to be of the Quorum, but then the power of the Justices of the Peace is ceased by the corning of a new Commission of Sewers.

All other Laws and Ordinnces of Sewers which are but made and writ in paper, or which be but in parchment, and not Indented, or which be indented also, if not sealed, con­tinue in force no longer then that Commission continueth by the power whereof they were made.

And so by this short declaration I have made, the Com­missioners may the better observe how long time Laws and Ordinances of Sewers are to continue in force; yet though they lose their vigor they may notwithstanding be revived by the power of a new Commission, or remain for presi­dents for after ages to imitate.

Repealing of Laws.

IN this last place I intend to deliver my opinion, what Laws, Ordinances and Decrees may be repealed, altered or made void by the Commissioners of Sewers.

Therefore it is first to be considered, what grounds are to be observed in repealing or altering former Laws.

It appears in Esther, that the Laws of the Medes and Persians were so perdurable, as they could never be changed: And in my opinion there is required as great foresight, judgement, and as sound discretion and mature delibera­tion in repealing of old Laws, as in making new ones; For Quae preter consuetudinem & morem major' fiunt ne (que) placent ne (que) recta videmur.

I have noted how carefully and constant the Lords of the Parliament House were in the 20 year of H. 3. when they all cried out aloud Nolumus leges Angliae mutare.

Seeing therefore there ought to be great care in making Laws, so must there be great heed taken in repealing of Laws.

And because Commissioners of Sewers have power herein, I will therefore deliver my opinion how far that power will extend: And if one note this Branch of the Statute well, he shall well perceive the Judicious care taken by the Parliament in penning of it; For the words be, That the Commissioners of Sewers should have Power and Authority to make, constitute and ordain Laws, Ordinances and Decrees, and the same Laws and Ordinances (omitting the word Decrees) to alter, repeal and make void; for a Decree is a Judge­ment, and is Finis operis, and a Judgement cannot be re­versed without a Writ of Error: Neither can a Sentence or a Decree in Chancery be reversed without a Bill of Re­view; neither can the Commissioners of Sewers reverse a Judgement or Decree of Sewers Judiciously pronounced, which is a Judgement upon a Tryal betwixt the King and the party, or betwixt party and party, without a Bill of [Page 234] Reversal; for it is truly said, Quod naturale est unum quod [...] dissolvi eo ligamine quo ligatum est.

A Writ of Error lay at the Common Law for to reverse a Judgement given by Commissioners of Sewers when the Commission was in Latine, as is set forth in the Register, being then one of the special Commissions of Oyer and Terminer; but since the Commission was put into the English frame, the Writs of Error ceased.

A Law for sale of Lands ingrossed into parchment, and certified into the Kings Court of Chancery, with the Kings Royal assent had thereto, is not reversable without an Act of Parliament; but then the said sale must be made accord­ing to the form, frame and power of this Statute.

For put the Case that A. B. holdeth his Lands of I. S. by the payment of Twenty shillings yearly towards the repair of such a Bridge, Bank or Wall, it fortuneth that A. B. paid the Twenty shillings yearly to his Lord for that pur­pose, who neglecteth to pay it, though he be thereto Or­dered and Assessed to pay the same to the said repairs by the Commissioners of Sewers, the seigniory of Twenty shillings yearly is to be decreed, and not the Land, for that the fault was in I. S. and not in A. B. the owner of the Land.

If any persons be by Prescription, Custom, Tenure, Covenant or otherwise, bound to repair Walls, Banks or other defences of Sewers, the Commissioners have not any power by their Commission to repeal, alter or make void any of these, because these are establisht by the Common Law, and Customs of the Realm, and not by the power of the Commission of Sewers: But their power is to re­peal, alter or make void Laws and Ordinances made by themselves, or by the power of their Commission: And so the words of their Commission plainly describe it; For thereby they have power to make Laws and Ordinances, and the same to repeal, alter and make void, so they must be the same and no other: And herein I end all my Argu­ments and discourse upon this Statute, for I accompt all the rest which remaineth unspoken of not to be worthy of [Page 235] a Readers dialect, because I have fully handled all the materials of this worthy Law; And therefore I may justly [...]clude my Argument with this, That Finitum est hoc opus [...] consumatum.