The reading of that famous and learned genrleman, Robert Callis ... upon the statute of 23 H.8, Cap. 5, of Sewers, as it was delivered by him at Grays-Inn in August, 1622. Callis, Robert, fl. 1634. 1647 Approx. 530 KB of XML-encoded text transcribed from 123 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2007-01 (EEBO-TCP Phase 1). A32252 Wing C304 ESTC R23882 07916387 ocm 07916387 40438

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Early English books online. (EEBO-TCP ; phase 1, no. A32252) Transcribed from: (Early English Books Online ; image set 40438) Images scanned from microfilm: (Early English books, 1641-1700 ; 1200:13) The reading of that famous and learned genrleman, Robert Callis ... upon the statute of 23 H.8, Cap. 5, of Sewers, as it was delivered by him at Grays-Inn in August, 1622. Callis, Robert, fl. 1634. [7], 235 p. Printed for William Leak and are to be sold at his shop, London : 1647. Reproduction of original in the Bodleian Library.

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eng Sewerage -- Great Britain. 2006-06 Assigned for keying and markup 2006-07 Keyed and coded from ProQuest page images 2006-08 Sampled and proofread 2006-08 Text and markup reviewed and edited 2006-09 Batch review (QC) and XML conversion

THE READING OF That Famous and Learned Gentleman, Robert Callis Eſq Sergeant at Law, Upon the Statute of 23 H. 8. Cap. 5. OF SEWERS: As it was delivered by him at Grays-Inn, in AUGUST, 1622.

Quod omnes tangit, ab omnibus ſupportari debet.

LONDON: Printed for William Leak, and are to be ſold at his Shop, at the Sign of the Crown in Fleetſtreet, between the Temple-Gates, MDCXLVII.

READER,

AMongſt other Decays in the Common-wealth, thoſe of Bridges, Calceys, Havens and Ports are not of the leaſt Conſideration, as the Gates that open and let in Commerce, and the ways that convey and lead it through the Kingdom: And it ſeemed to me to be of ſo Publique a Neceſsity, that I did conceive this Learned Piece upon the Laws of Sewers would come ſeaſonably abroad, and finde an Entertainment ſutable to the uſefulneſs of it at this time, when the Countrey is almoſt become Ʋnpaſſable by the late Troubles; wherein the endeavor was more to be ſecured at home from them that were abroad, then to Traffique with them. If you can ſit down to a cold Reading, here is one ſerved out to you at my coſt; all that I ſhall adde to your Cheer is, That I had publique allowance to make the Invitation: If the Printer have committed Infanticidium, lay the blame upon him; but if he have delivered the preſs of it ſo imperfectly, that it will be only fit to move Pity, and to Beg withall, the misfortune is mine, and I muſt Keep it.

Farewel.
The chiefeſt matters in this Book, as they lie diſpoſed in each days work of the Reading. In the firſt Lecture, THe Readers grave Speech. The Cauſes wherefore he read on this Statute. Antiquity of the Laws of Sewers. The Extent of this Law. The neceſſary uſe of this Law. The Diviſion of this Law. The firſt Caſe put for tbe firſt Lecture. The Points of the firſt Caſe. The Readers Argument upon the firſt Caſe. The Readers Argument upon this Statute and Commiſſion. The Definition of Iſlands, &c. What grounds ſhall be ſaid to be left by the Sea. The Readers Tenets thereupon. The Shore what. Sea-Coaſts what. Creeks what. Arm of the Sea what. Diverſity between a Shore, Coaſt and Creek. Bay, Fleet and Mere, what. A Port what. Diverſity between Creek, Haven and Port. Diverſity between grounds gained and grounds left. The Concluſion of the Reader upon his firſt Lecture. In the ſecond Lecture, VVHat buſineſſes on Land this Law doth Defend, and what Offences it Reformeth. The Caſe for the ſecond Lecture. The Points thereof both at the Common Law, and on the Statute. The Argument on the ſecond Caſe. Two Conceits of the Readers. Bank what. Wall what. River what. The property of running waters, in whom. A Sewer what. A Gutter what. Ditches, Pools, Ponds, what. Streams, Conduits, Springs, what. Caſes put by the Reader upon them. Bridges, and proviſion for them. Calcey what- Goats, for what uſe. New Defences. Arguments pro & con for New Defences. The Kings Councels Order. What View and Survey is. What may be done by Officers of Sewers by Survey only. What may be done by Jury. What may be done by their Diſcretion. The ſeveral degrees of Diſcretion. In what things Commiſſioners are to be ruled by good Diſcretion. Nine ſeveral ways for keeping and repairing Defences, 1. Frontage. 2. Ownerſhip. 3. Preſcription. 4. Cuſtom. 5. Tenure. 6. Covenant. 7. Vſus rei. 8. Townſhip. 9. This Law of Sewers. Whether one may be Taxed for Tythes by the Law of Sewers, or not. Whether a Copyholder for his Copyhold, and a Lord for his Freehold of that Soil, ſhall be aſſeſſed. Four tenets concerning Copyholders. What Lands and other things, and what perſons, and in what degree they are to be aſſeſſed towards Repairs by this Law in this caſe. 1. High Mountainous grounds by Preſcription Cuſtom and Tenure. 2. Dean and Chapter, &c. for an Annuity 3. For Common of Piſchary in Fens, &c. 4. For a Ferry. 5. For Herbage. 6. For free paſſage on a River. Parks, Warrens, cum multis aliis. The large Extent of the word Tenement. Charge on the Level by Commiſſioners of Sewers nine ſeveral ways. The Readers Concluſion of the ſecond Lecture. In the third Lecture, VVHat Law is. The Caſe for the third Lecture. This Caſe divided into three Points at the Common Law, and five upon the Statute. 1. Point, Whether an Office may be Intailed, or not. 2. Whether it be an ordinary Intail or franck-Mariage; and what things incident to franck-Mariage. 3. How a Baſtard may inherit Land. The Sewers a Court of Juſtice. How Courts had their beginning. The Reaſons that Sewers are a Count. Impriſonment by Commiſſioners of Sewers. In what caſe Commiſſioners may Impriſon, Fine and Amerce. The qualities of a Fine. Amerciaments what. A Diſtreſs, and the ſeveral kindes of it. In what place a Diſtreſs may be taken. Whoſe goods may be diſtrained. Where property of Goods is alterable without conſent. Sale of Goods by the Law of Sewers. Whoſe Goods may be ſold by this Law. Where a Replevin lieth, and where not. Caſes reconciled concerning Replevins. A perpetual charge upon Land. Sales of Lands. For what cauſe Lands may be ſold. What Lands are to be ſold. What Perſons and Eſtates are bound hereby. To whom Lands may be decreed by this Law. Legal proceedings, where Traverſable, and where not. Whether the Laws of Sewers will permit any Exemptions. The Readers Concluſion on the third Lecture. In the fourth Lecture, THree Points at the Common Law, and four upon the Statute. How a competent Commiſſioner muſt be qualified; and if not, how puniſhed. What qualities makes a free Citizen a competent Commiſſioner. The Puniſhment the Roman Laws did inflict upon Strangers. Exile deſcribed. Abjuration a legal Exile. What a man Exiled forfeiteth. How many ways a Freeman of a City or Borough may be made. What kindes of Habitation the Freeman ſhould be of. What be, and what be not valueable Subſtance. What Goods will enable one to be a Commiſſioner, and what not. What are Hereditaments in this Law. An utter Barriſter is a fit Comiſſioner. Whether a Woman may be a competent Commiſſioner within this Statute. An Infant above Fourteen, and under Twenty one years, a Commiſſioner. Whether Laws and Ordinances made by a diſabled Commiſſioner be void, or not. Ten Impediments or Annoyances this Statute ſpeaketh of, viz. 1. Streams. 2. Mills. 4. Bridges. 3. Ponds 5. Fiſhgarths. 6. Mildams. 7. Locks. 8. Hebbingweres. 9. Hecks: and 10. Floodgates. Theſe Impediments and Annoyances diſcourſed of. To make a Stream Navigable. The Readers Concluſion on the fourth Lecture. In the fifth Lecture, A Short Speech of the Readers. A brief Repetition what is handled in the four former Lectures. Commiſſioners of Sewers have power to make, conſtitute and ordain Laws, Ordinances and Decrees, and the ſame to amend, or make new. Things conſiderable in making new Laws and Ordinances. A Law, Ordinance and Decree, what they are, and their difference. Laws and Ordinances for ſale of Lands, how to be perfected, and in what maner. Repealing of Laws. What grounds to be obſerved in Repealing of Laws. How far the power of Commiſſioners extends therein. The Readers Concluſion of all his Labors.
Lectura prima.

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 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.

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

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

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

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.

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. 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.

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 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. 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 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:

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.

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.

Thirdly, whereas Navigation, both for the Exporting of our Homebred Commodities, and for the Importing of 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.

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.

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.

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

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

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.

Points on this Statute.

Firſt, Whether the Engliſh Seas be within this Realm of England, and what Intereſt the King hath there, and what Intereſt a Subject may have therein by cuſtom and preſcription, and what is meant by the ſaid words, Incrementum & Decrementum maris?

Secondly, Whoſe theſe new Iſlands be which ariſe there, and wherher they be ſaid to be within the Realm, and what Laws govern the ſame; for that it appears in my Caſe, that the ground left between the Sea and the Haven is an Iſland?

Thirdly, Whether the King ſhall have all the grounds by His Prerogative, or the Subject by the ſaid Preſcription, or the Prince as participating of both? or whether every one ſhall have a part thereof, according to my Concluſion?

Fourthly, Whether the grounds left by the Sea be within this Statute and Commiſſion, both or either of them, or neither of them?

Fifthly, What a Haven, a Shore, and the Coaſts be in definition, and the ſeveral properties thereof?

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 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 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 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 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 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 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:

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.

Secondly, they be but in Law one Tenant.

Thirdly, they ſhould joyn in Advoury.

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.

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

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

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

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 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: 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. 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 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 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 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 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, 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 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 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 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:

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.

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.

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.

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. 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. 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.

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 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 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? 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:

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.

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

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.

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 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.

Finis primae Lecturae.
Initium ſecundae Lecturae.

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.

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.

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

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

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?

Points upon the Statute.

Imprimis, Whether Commiſſioners have power to decree a new bank, a new drain, and other new defences, or not? And herein the qualities and properties of Rivers, Streams and Banks, and their dependants, are to be treated of.

Secondly, Whether they may decree the ſaid new defences by view and ſurvey? And herein is to be handled, What Commiſſioners of Sewers may do by ſurvey, and what they may do by their diſcretion, and what they may do by Jury.

Thirdly, in what caſes Aſſeſſes and Taxes may be laid and impoſed, and on what things, and in what maner they are to be impoſed; and whether the Rates ſet upon the perſons in any caſe be well done or not, and where the fault is if any be.

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 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 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 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 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 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 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 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. 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 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. 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. 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 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 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 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;

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.

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.

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.

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.

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 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. 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 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 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 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 no ſuch new River or drain could be made by the Commiſſioners of Sewers by the power of theſe Laws.

Argumentum in contrarium.

The reaſons and authorities put on the other part are weighty and ponderous, and require a very good anſwer; which I ſhall endeavor to give thereto: It is true, that the words of this Statute and Commiſſion bear much with the ſaid former expoſition; So I hope to finde words in this The Law it ſelf in words extend to it. Statute alſo, which will tend as much the other way: And they be in the fore-part thereof, viz. That daily conſidering the great damages and loſſes which have happened in many and divers parts of this Realm, as well by the contagious flowing ſurges and courſe of the ſea, in and upon Marſh grounds, and other low places heretofore through politique wiſdom won and made profitable for the Commonwealth of this Realm, &c. And theſe grounds which have been ſo won, could not be ſo kept and preſerved, but by banking and new fencing in; which proves directly, that the ſaid new Banks and new fencing might be made for the inning and keeping of the ſaid new won grounds: And alſo the Statute The expired Law of H. 6. giveth aid to this expoſition. of 6 Hen. 6. Cap. 5. gave the Commiſſioners of Sewers power to repair the ancient Banks, and Walls and fences & eadem, & alia de novo conſtruere; by which words the Commiſſioners which had their power from that Statute, might make new defences, as Banks, Walls and ſuch like: And ſo is the opinion of Sir Edward Cook delivered upon the ſaid Statute of H. 6. in his Caſe of the Iſle of Ely, which being obſerved and granted, makes ſtrongly for this part; for that the Statute of 23 H. 8. doth not only confirm all former Statutes of the Sewers then in Eſſe, but alſo gives authority to the Commiſſioners to do after the Tenure and effect of all and ſingular the Statutes and Ordinances before that time made: And although the ſaid Statute of H. 6. was in time then expired, yet the form and effect of it may be followed and obſerved: And to that end I take this diverſity between a Law repealed and a Law expired, for a repealed Law is made void and fruſtrate, as either unworthy or unneceſſary for ſome reſpects to be any longer continued or put in execution, and therefore was forbidden to be uſed or practiſed; but a Law expired in time, though it hath loſt his vigor and force, yet it is like a vertuous man deceaſed, his life and actions may be worthy imitation, though the date of days be at an end; but a Law repealed is like a man condemned for ſome offence, whoſe life and actions are neither of them worthy imitation, unleſs it be to do the contrary: And the ſaid Statute of H. 6. was a worthy Law, which this Statute intended not to come ſhort on, but to extend further then the Limits of that Law did reach unto: alſo the ſaid Statute of H. 6. is uſed by Sir Edward Cook in the pleading of Rooks Caſe in his 15. Rep. where he could Rooks Caſe. make there no other uſe of it, ſeeing it was in time expired, then only by way of imitation.

Alſo we muſt conceive, that theſe Laws of Sewers are of great and urgent neceſſity and uſe for the good of the whole The equity of this Law will help this expoſition. Commonwealth of the Realm, and therefore the intent thereof may be extended in expoſition beyond the letter of the words; for the words be (and the ſame to make new) which according to the bare words in a literal conſtruction, cannot extend to new ones where none was before, but to the reedifying of the decayed old ones; but the learned expoſitor, whoſe conſtructions be not ſo much grounded upon the letter as upon the ſence, may in equal juſtice extend the ſence to new making, as wel as to renewing of defences; for Mr. Bract. Bracton. li. 1. Cap. 3. defineth equity to be Rerum convenientia quae in paribus cauſis paria deſider at jura & omnia bene coequiper at & dicitur equitas quaſi equalitas: And if the grave and learned Judges have in private affairs introduced this equity to direct, inlarge or diminiſh the letter of the Laws in the ſence of conſtruction, as by many preſidents we finde in Mr. Plow. Com. in Hill and Granges Caſe, fol. 178. and in many other authorities à forciori ſhall this Statute of 23 H. 8. be expounded Hill & Granges Caſe. with as much favorable equity as can be, to inlarge the letter of the Law in the ſence of conſtruction, becauſe it tends ſo much to the advancement of the Commonwealth, Et qui heret in littera heret in corticè. And if the makers of the Law, when this Statute was put into the frame, had been demanded, whether their meaning was to have it extended to the making of theſe new defences where either juſt occaſion or neceſſity did inforce it; they would have anſwered, That they ſo intended it; for the ſoul and life of the Law lieth in the ſenſible expoſition thereof, and not in the bare letter, as Mr. Plow. alſo fully demonſtrates in his Com. in Eaſton and Studs Caſe.

And whereas it is formerly alleaged, that the warineſs of the Common Law was ſuch in theſe Caſes, that it admitted not one ſuch new Trench, River or new cut to be made, without the awarding out of the writ of Ad quod dam' directed to the Eſcheator, an Officer ſworn to enquire, firſt, what damage it might be if ſuch a new cut or drain were made? and then upon his inquiſition returned, there might be one made, if by the inquiſition it were found convenient, elſe not to be proceeded further in: But in anſwer thereto, being the argument ſet down in the ſaid Caſe of the Iſle of Ely, I am of Opinion, That there may be more wary and circumſpect proceedings by this Commiſſion, then in the Ad quod damn' by the Eſcheator; for there be many Commiſſioners which be all ſworn, and in the Ad quod damn' there is but one, the Eſcheator, plus vident oculi quam oculus & tutius eſt rem' committere pluribus, quam uni, and in my Opinion, it is much better to commit this weighty buſineſs to many Commiſſioners of great gravity, experince, learning, wiſdom and integrity, then to one Eſcheator, who may perhaps want all thoſe vertues: And further, whereas in the ſaid Caſe of the Iſle of Ely, it is inferred, or rather feared, that by giving this power to the Commiſſioners of Sewers, they may thereby ſtop up the havens of this Kingdom; that fear is needles, for I finde, that neither by the letter nor the ſence of theſe Laws, any ſuch expoſition can be made, either to the ſtopping up or hindring of their currents and paſſages. But to proceed in my former diſcourſe in making new defences: I know that in the 43, and 44 Eliz. a great controverſie did ariſe in the county of Lincoln, about the building and erecting of two new Goats at 43 & 44 Eliz. Skirbeck and Langrate, for the draining of the waters out of South Holland Fens into Boſton Haven; which work Sir Edward Dymock Knight, did further what he might, by the ſtrength of himſelf and his friends; and it was oppoſed by the Countrey of Keſteven: and the very exception thereto taken, was, That the Commiſſioners of Sewers could not by the power of their Commiſſion make a Law for the erecting of theſe new Goats where never any ſtood there before: And that Caſe proceeded ſo far, as the ſame came in the end before the two chief Juſtices, Popham and Anderſon, who both delivered their opinions, that the ſaid new Goats, if they were found to be profitable for the good and ſafety of the county, might be erected by the power of this Statute; but they then wiſhed and adviſed, that the Commiſſioners ſhould be wary, provident and circumſpect to adviſe deliberately before hand, that they by the opinion of experienced perſons in thoſe affairs, the ſaid new works ſhould in all appearance ſeem to be profitable to the Common weal, if they were effected; & that Commiſſioners ſhould not in any ſort make ſuch devices at the ſuit, proſecution and requeſt of private perſons for their private & peculiar good, who many times ſought their own ends under pretence of the publike good. And a like great controverſie did ariſe in 12 Jac. in the counties of Cambridge, Huntington and Northampton, about the making of new cuts and drains in the Iſle of Ely by the power of the Commiſſioners of Sewers, which being much oppoſed, the ſame came in the end to be heard before the King and Councel, wherein this Order was conceived as followeth.

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 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 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 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 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 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 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 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 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.

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.

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.

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.

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.

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 Commiſſioners of Sewers take notice by view or ſurvey of ſuch things as are done or committed in their abſence?

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.

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?

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?

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.

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.

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

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.

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. 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.

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

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

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.

The election of Officers lieth in their diſcretion.

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

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 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 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. 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 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 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 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 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 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 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 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 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, 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. 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.

Firſt, though he be Lord of the Copyhold, yet he is 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.

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.

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 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.

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

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.

Thirdly, in reſpect the Copyhold rent is a rent of Aſſize, 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.

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 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 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, 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 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 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; 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.

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.

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.

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.

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

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.

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.

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

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.

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:

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.

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.

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.

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

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 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.

Finis ſecundae Lecturae.
Lectura tertia.

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:

Either in puniſhing the body and perſon of the delinquent with Impriſonment, Fine, or Amerciament.

Or in doing execution upon the offendors goods By diſtreſs, or by the Abſolute ſale thereof.

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.

Points at the Common Law. Imprimis, Whether this Office may be intailed or not? Secondly, Whether it be an ordinary Intail, or a Frank-mariage? Thirdly, Whether the Baſtard be inheritable to this Eſtate, or not? Points upon the Statute. Firſt, Whether the Commiſſioners have a Court, or only the ſtrength of the Commiſſion without a Court? 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? Thirdly, Whether this Law doth admit of any pleas, and eſpecially of pleas of diſcharge? 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? 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 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. 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.)

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

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

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.

Fourthly, acquital of payment of Rents and ſervices.

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, 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.

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 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,

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.

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.

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;

Firſt, by Preſcription.

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

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.

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. Juſtices, and one cannot properly be a Juſtice or a Judge but in a Court.

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.

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.

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

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.

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 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 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 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 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 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, 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:

Firſt, the party in that caſe is impriſonable.

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.

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

Fourthly, every Fine ought to be reaſonable.

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 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. 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 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 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.

Three ſorts of Diſtreſſes.

Firſt, there be divers kindes of Diſtreſſes (viz.) Judicial, which always iſſueth out of the Rolls of the Court.

Secondly, Miniſterial, and ſuch Diſtreſſe is to be performed by the Officers of theſe Laws, without any judgement directing the ſame.

Thirdly, and there is a Diſtreſs of Common right, not given nor awarded by Judgement in Court, or by Warrant of the Commiſſioners, but incident to the thing it ſelf.

And firſt of the Iudicial Diſtreſs which is awarded by the Court upon a preſentment found of a Nuſans, or in the recovery of an aſſize of Nuſans, or in an Action of the caſe, as it appears by the 42 Aſsiz. plac. 15. 32 Ed. 3. 23. and 7 H. 4. 8. there a Diſtringas ad Amovendum ſhall be 32 Ed. 3. 7 H. 4. awarded to remove the Nuſans; and ſo in caſe of a decay preſented; As if I. S. ſuffer a Bank or Wall to decay, and that be preſented, a Diſtringas ad reparandum ſhall be directed to the Sheriff to diſtrain I. S. to repair the ſame.

Secondly, a Diſtreſs Miniſterial is where one is aſſeſſed or rated to pay a certain ſum of mony towards the repairing of a Wall, Bank, Sewer or Goat; here upon Warrant from the Commiſſioners of Sewers, the Officer expreſſed in that Warrant may diſtrain the cattel of the party which ought to pay the ſaid Rate and Seſs, and which did neglect to pay the ſame: And yet where there is a Rate and Seſs impoſed upon one by the Commiſſioners of Sewers, I am of opinion that the Collector or Officer may diſtrain therefore without any expreſs Warrant from the Commiſſioners ſo to do; and my reaſon is grounded upon the Statute, which is this, becauſe the Statute and Commiſſion which be the general Laws, do of themſelves in this caſe give a diſtreſs. And therefore in theſe caſes, the Warrant of the Commiſſioners is ſuperfluous, like to the Caſe in 20 Eliz. Dyer. 20 Eliz. fol. 362. where a Fine was levied of Lands, to the intent that I. S. ſhould have and receive a yearly Rent thereout, although in the conveyances there was no mention made that the party might diſtrain for the ſame: Yet in that Book it is mentioned to be adjudged, That the owner of that Rent might diſtrain for the ſame, becauſe the Statute of 27 H. 8. in 27 H. 8. that Caſe gave a diſtreſs. Upon which Statute the ſaid conveyance was grounded. So if their be two coparceners to whom Land doth deſcend, and they make partition, and for more equality ſhe that hath the better part doth grant to the other and her Heirs a yearly Rent out of her Land, but limits no clauſe or power of diſtreſs, ſhe to whom this yearly Rent is granted may diſtrain therefore; And ſo may a Bailiff diſtrain for an Amerciament in a Leet without a Warrant, becauſe the general Law gives a Diſtreſs in theſe caſes.

Thirdly, and as touching a Diſtreſs of common right, It is in caſe where one doth hold his Land of his Lord as of his Mannor, to repair a Bank, Wall or other work of Sewers; the Lord of whom theſe Lands be holden may diſtrain his Tenant of common right to compel him to make theſe repairs; and the Diſtreſs given in the ſaid Caſe of the coparceners, and in the ſaid Caſe of Amerciament in a Court of Leet, ſeem both to be Diſtreſſes of Common right: And that the Law is, that a Diſtreſs lyeth for a Rate, Lot or Tax impoſed by the Commiſsioners of Sewers, it is manifeſt by the Caſe of Rooks in Cooks 5 Report, which is full and direct authority in the point.

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 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 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.

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.

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.

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 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 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.

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.

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.

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.

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

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.

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, 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.

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 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 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 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.

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 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. 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 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 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:

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.

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.

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.

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 nor his goods were not expreſly bound by the Laws of Sewers.

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.

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.

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.

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 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 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 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.

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

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

Thirdly, what perſons, what Eſtates and Intereſts are to be bound thereby.

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.

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.

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 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 all other Lands, Tenements and Hereditaments decreed, in reſpect whereof one is ſeſſable and ſeſſed by the Laws.

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. 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, 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, 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 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.

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.
Traverſe.

TO enter into theſe parts of my Law, I think it fit to begin with Traverſe, and to deliver my opinion, whether ſuch Pleas and Proceedings are to be admitted into this Court; for a Traverſe is a Plea of the party, containing matter to the contrary of that that the party ſtands accuſed of, or which is laid to his charge: And in ſome caſes our books and authorities of Law admit the party to a Traverſe, and in other caſes the ſame is to be denyed; for in the 5 H. 7. fol. 9. & 45 Ed. 3. fol. & 28 H. 8. in Dier, fol. 13. if one be preſented in a Leet Court for a Blowipe or any other perſonal 5 H. 7. 45 Ed. 3. 28 H. 8. wrong, this Preſentment is not Traverſable, but the party is without remedy therein, though the Preſentment be falſe and the matter of it untrue; and the Law is ſo alſo of ſuch a Preſentment made in a Sheriffs Turn: and herewithall agreeth the books of 2 R. 3. 11. and 19 H. 8. 11. 2 R. 3 19 H. 8. 5 H. 7. 8 Ed. 4. Fitz, Aſsiz. plac. 442. and 8 Ed. 4. 5. and the reaſon thereof is delivered in 5 H. 7. becauſe no Proceſſe is there awardable againſt the party to call him to anſwer: Yet in the ſame Book of 5 H. 7. it is ſaid, That if a Preſentment be made which toucheth a mans Freehold, he may there Traverſe the ſame. But I take it the party muſt firſt remove the Preſentment into the Kings Bench, and there Traverſe it; for in the Court Leet, in my opinion, there can be no Traverſe taken or tryed, no more where the Preſentment toucheth Freehold, then where it only concerneth a perſonal wrong: Therefore the reaſon alleaged in 5 H. 7. cannot be the true cauſe wherefore in perſonal wrongs the Preſentments cannot be traverſed; but the very true reaſon therein is, as I take it, becauſe theſe petty Preſentments be of ſuch petty trifling matters, that in avoidance of trouble the Law eſteemed them not worthy of Traverſe and Tryal; and Juſtice Fairfax in 5 H. 7. is of opinion, That a Preſentment made before Iuſtices of Peace in a Seſsions is traverſable: and with this agreeth Stanford, fol. 183. and in other Courts of Law there oftentimes fall out matters which one ſhall not be admitted to take a Traverſe unto, and in ſome other caſes he ſhall, as by theſe ſucceeding authorities may appear. In the 37 Aſsiz. plac. 7. a Preſentment was taken before Green and Ingham, Juſtices of the Kings Bench, That I. S. who had killed A. had goods to the value of Eighty pounds in the hands of one John Lombard; and upon this Preſentment a Scire-facias was awarded againſt John Lombard, to ſhew cauſe wherefore theſe goods ſhould not be ſeized to the Kings uſe: John Lombard came in and tendred a Plea to the Preſentment, that theſe goods were not the felons, but that they were delivered to him to keep to the uſe of a Cardinal of Rome, and he was there admitted to this Plea; and with this agreeth 45 Ed. 3. fol. 26. expreſly: Yet in that book and Mr. Stanford, fol. 185. it is holden for Law, That if it be preſented before a Coroner that I. S. killed A. B. and fled for the ſame fact, and after upon his tryal he is acquit, yet he ſhall forfeit his goods upon the Fugam fecit before the Coroner, and he ſhall not be received to take any traverſe to the ſaid Preſentment in that point. The difference in which two caſes is this in my opinion, that a ſtranger, as Iohn Lombard was, in the the firſt Caſe, ſhall not be peremptorily concluded; for it were no reaſon one mans goods ſhould be forfeited in another mans default, and he ſhould have no anſwer thereunto: But in the other Caſe, in Terror of Felons, though he be acquitted of the Felony, yet he is not acquitted of the flying, and he may be guilty notwithſtanding his acquittal. There be other caſes in the Law which admit no Traverſe, as in James Bags caſe Cook 11. Rep. James Bag Caſe. where a Writ was directed to the Major and Burgeſſes of Plymouth to reſtore Bag to his Aldermans place there, which they had put him from, and they return a cauſe ſufficient to bar him, which notwithſtanding is falſe; yet he ſhall not be received to his Traverſe therein; neither could a Traverſe be admitted in the Certificate of the Biſhop, wherein was contained, that I. A. Parſon of Dle had refuſed to pay his diſmes to the King, by means whereof the Parſon loſt his benefice, which caſe is in Br. caſes, temp. He. 8. pl. 332. Br. Caſe. 7 H. 4. 21 H. 7. and Dier, fol. 116. and 7 H. 4. fol. 4. and 21 H. 7. 8. and many other Books be, that no Averments ſhall be taken to the returns of Sheriffs to take any Iſſue thereupon.

And in Dr Bonhams caſe upon a Habeas corpus the Phyſitians returned the cauſe of his impriſonment, which was falſe; yet he could not be admitted to traverſe the ſame. But yet by the opinion of theſe Books, an Action upon the caſe lieth againſt the Major and Aldermen, & againſt the Biſhop, for their certificates, and againſt the Sheriff for their falſe returns; and if Juſtifications be made by them they may be traverſed: But theſe will not reduce the parties to their former liberties (viz) not the Alderman to his place, nor the Parſon to his Church, but damages in thoſe caſes are only recoverable.

Theſe caſes I have put as Reaſons and Arguments againſt our Caſe of Sewers; But yet I am of opinion, that a Traverſe may be taken to a Preſentment made in this Court of Sewers, and herein this Court may be reſembled to a Seſſions of the peace: And this Commiſſion of Sewers gives the Commiſſioners of Sewers power to hear & to determine at the Kings ſuit, as well as at the ſuit of the party; and a Traverſe lyeth of a Preſentment found before Commiſſioners of Oyer and Terminer, and is triable before them by the Books of 29 Aſsiz. pl. 33. and 12. lib. Aſsiz. 21. and 29 Aſſiz. 12 Aſſiz. pl. Com. the Earl of Leiceſters Caſe in Plow. Com. fol. 397. and the words of this Statute are ſufficient to yield the party the benefit of a Traverſe if there be cauſe; and for preſident in the point, Chart. of Romney Marſh pag. 23, and 24. one Godfrey Ro. Marſh. being preſented that he ought to repair a Bank or Wall, and that he did neglect to do the ſame, and he came in and pleaded a Plea thereto before the ſaid Commiſſioners, and in 19 lib. Aſsiz. plac. 6. there were divers Preſentments before Commiſſioners of Oyer and Terminer for Nuſances done in the River of Lee, and the ſame were there traverſed and tryed: And the Statute of 1 H. 4. cap. 12. 1 H. 4. doth plainly admit of a Traverſe, wherein the words be, That in caſe if any feel himſelf greived by execution or otherwiſe againſt right and reaſon, let him purſue and he ſhall have right: But I verily ſuppoſe, that thoſe things which the Juſtices of Sewers do by their view, or by ſurvey and diſcretion, are ſo binding as in thoſe caſes no Traverſes are to be admitted, becauſe theſe things are meerly the acts of the Court, and of the Juſtices themſelves: and if they Fine a man for his contempt in Court by a Record of their own view, and not upon a Preſentment, the party ſhall not be received to Traverſe this: and in Doctor Bonhams Caſe it is ſaid, That the act of a Judge is not Traverſable, if he be the abſolute Judge of the Cauſe; But in caſes done or certified by ſuch as be no abſolute Judges of the Cauſe, as Commiſsioners of Bankrupts, which certifie one a Bankrupt he may Traverſe this in an action brought, as was done in the Caſe of Cut and Delaber in 7 Jac. in the Cut and Delaber. 7 Jac. common place; and Vernies Caſe 1 Mar. Dier, fol. 89. no Averment could be taken to the certificate of a Judge; and with this agreeth 7 H. 7. fol. 4. 7 H. 7.

But although a Traverſe may be taken to a Preſentment in the Court of Sewers, yet times and ſeaſons muſt be obſerved; for if a Preſentment be there made, it may be Traverſed for the reaſons, cauſe & preſidents formerly mentioned; Yet if the cauſe have been there ſo far proceeded in as the Commiſſioners make a decree thereupon, I take it then no Traverſe at all can be taken, becauſe a decree is the final Judgement of the Court, and is an act Judicial which cannot be traverſed and tryed by a Jury, for that were to refer the Judgement of the Court to be examined by a Jury, which may not be admitted; and at the Common Law, after Judgement no Traverſe can be taken: And if one be Indicted at the general Seſſion of the Peace, this is traverſable; but if the party ſuffer himſelf to be Outlawed upon the ſaid Indictment there, no Traverſe lieth, but a Writ of Error: So if in our Seſſions of the Sewers, the cauſe proceed to a decree, the party grieved is to take his way by preferring a Bill of Reverſal in maner as is done in the High Court of Chancery, and ſo he may have the cauſe here throughly examined.

Other legal proceedings.

THe words of the Statute which give the legal proceedings be theſe (viz.) That the Commiſsioners of Sewers may hear and determine all and ſingular the Premiſes, as well at our ſuit, as at the ſuit of any other complaining before them, after the Laws and Cuſtoms aforeſaid, or otherwiſe, by any other ways or means; theſe words give the party remedy to ſue before the Juſtices of Sewers for ſuch things as are contained within theſe Laws, and which have their dependency thereon: In Colſhils caſe in Dier, fol. 175. the party preferred his Colſhils caſe. Bill of complaint to the Commiſſioners, containing the effect of his Title to the Office in queſtion, and theſe were ſpecial Commiſſioners of Oyer and Terminer: Juſtices of the general Oyer and Terminer, may hear and determine Uſury by the Statute of 13 Eliz. cap. 8. yet if I. S. be bound 13 Eliz. in a Bond of Ten pounds principal debt, and for Forty ſhillings for Intereſt, although this Bond be for payment for uſury, yet an Action of Debt doth not lie thereupon before the ſaid Commiſſioners, but an information may be preferred againſt the lender there to puniſh him.

So by our Statute of Sewers an Action of Treſpaſs lieth not for a Treſpaſs done within the reach of this Commiſſion, yet Diſtinguendum eſt; for put the caſe a ſeſſe is laid upon a man, and the goods of I. S. not chargeable thereto be taken and diſtrained, who is not chargeable to the payment thereof, I. S. in my opnion (though this caſe have but the countenance of this Commiſſion) may have his Action or prefer his complaint before the Commiſſioners in this Court of Sewers for the recovery of his damages: And although this be but a private Action, yet the Diſtreſs being taken by an authority drawn from the power of this Commiſſion, the party diſtrained may have his remedy in this Court by his private Action, becauſe it ſprung by the colour of the general power of this Court.

If A. B. have a ſeveral Piſchary in the River of Witham, which is a River within the Commiſſion of Sewers, and the ſaid Piſchary by theſe Laws is chargeable to the repairs thereof, if C. D. diſſeiz him thereof, or commit a Treſpaſſe by Fiſhing therein, A. B. can neither have an Aſſize nor Action of Treſpaſſe within this Court.

So if a Royal or common River hath his current through the town of Dale, and one A. B. is tyed to repair the Banks there by Tenure, Preſcription or otherwiſe, which notwithſtanding in his default are broken down, and the waters breaking out overflow the grounds of C. D. thereto adjoyning, yet C. D. hath not any remedy to recover his damages againſt A. B. in this Court for the loſſe of his grounds, but he is put to his private Action therefore at the Common Law; and with this agreeth the Caſe of Keighley: But if A. B. be preſented therefore before our Commiſſioners of Sewers, they may order A. B. to repair the breach, but cannot award damages to C. D. for our Commiſſioners of Sewers are herein like to Juſtices of Peace, and to Stewards of Leets and Law-days, which have power originally to meddle only with the publike wrong; Yet by the power of their Commiſſion, and of this Statute, they many times accidentally meet with private injuries, as by the inſuing caſes may appear.

If a Townſhip be aſſeſſed by a Law of Sewers, and the goods of one of the Inhabitants be taken for the ſeſſe, that party upon his complaint to theſe Juſtices of Sewers may have proceſſe out of this Court to call before them the reſt of the Inhabitants which were ſubject to the ſaid ſeſs, to cauſe them to contribute towards the parties damage who was ſolely diſtrained for them all, for otherwiſe this Court ſhould fail of juſtice in his own proper materials; & the Statute of 1 H. 4. c. 12. ſaith, That he which is grieved, let him have remedy: And if the goods of a man taken for his tax or 1 H. 4. ſeſs be ſold for the payment thereof, for more moneys then his ſeſs came to, the Juſtices of Sewers have power to cauſe the Officer to reſtore the overplus Et cum hoc concordat the Charter of Rom. Marſh.

If the Commiſſioners of Sewers appoint the Officers to take ſo many trees of I. S. at ſuch a price, for the repairing of a defence againſt the ſea, or to make a trench over the grounds of I. D. and thereto erect ſomething toward theſe actions, I. S. hath remedy to come by his moneys in this Court, and the other party over whoſe grounds this trench is made, may be relieved in recompence to be made to him for the hurt in his grounds.

If Laborers or Workmen, as Carpenters, Maſons, Smiths, Dikers, or other perſons be ſet on work by the power of theſe Laws, they may by the ſame power recover their wages before the Juſtices of Sewers; for the original cauſe ſprung out of the power of this Commiſſion, and this is there determinable, as incident to the authority of that Court: But if the original cauſe did not ariſe out of this Commiſſion, as in ſome of the preceding caſes they did not, then hath this Court no Juriſdiction of the matters depending thereon: And I do ground this diverſity upon the reaſon of the Book caſe put in 1 R. 3. fol. 4. where it is ſaid, 1 R. 3. That if the original cauſe do belong to the Court Chriſtian, although in the proceedings therein ſome matters happen which depend on the principal, which do belong to the Temporal Court, Yet Acceſſarium ſequitur ſuum principale, and theſe matters ſhall alſo be determined in the Court Chriſtian: And ſo if in a cauſe at the Temporal Law, as in a Quare impedit, and in the proceedings therein, ſome matter do ariſe depending on the principal cauſe, which belongeth to the Court Chriſtian, yet the Temporal Court ſhall continue his Juriſdiction thereof: And with this diverſity agreeth Kelleways Kelleways Rep. Report, fol. 110. ſo in our Court of Sewers, although a thing happen in the proceedings, which if it ſtood meerly of it ſelf would not pertain ad eor' examen, notwithſtanding if it be but a matter accidental, and have his dependance upon a principal matter which is determinable in this Court, the other alſo ſh a be here determinable.

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.

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.

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.

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.

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.

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 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.

Finis hujus tertiae Lecturae.
Lectura quarta.

IT appeareth by this Statute I read on, that the Law makers made it not the leaſt part of their care to have ſuch perſons put in truſt with the execution thereof, as ſhould be of great wiſdom and approved experience. And becauſe that perſons of profound wiſdoms, deep Experience, tryed Learning, generous Diſpoſition, and of good Eſtate, ſhould be put into theſe Commiſſions of Sewers, the Statute did make choice of four Honorable perſons to have and take the nomination of ſuch as ſhould for their Integrity, Learning, Wealth, Wiſdom and Experience, be worthy to be put into this Commiſſion. And therefore the Lord Chancellor, Lord Treaſurer, and the two Lord chief Juſtices for the time being, have by this Statute the nomination of our Commiſſioners; But as theſe great perſons of Honor by their high places are moſt commonly buſied in matters of great importance, they many times refer theſe matters to others, by means whereof divers perſons in ſome countreys have of late years crept into Commiſsion, which this Statute doth not allow of, which do not only want knowledge and experience, but which are alſo tranſported and carried away with ſelfwill, and ſerve moſt commonly to make a faction of the greater number to carry away buſineſſes, when the graver and wiſer ſort are forced (being overladen with popular voices) to give way to run into contrary courſes, and are made to ſurceaſe from making good and wholſom Laws and Ordinances, and ſometimes are as it were forced to agree to thoſe which are whoſe; even as the Roman Dictator Fabius having joyned to him the froward Minutius, was by the violent ſtream of his colleague ſo croſſed and overſwayed, not out of judgement, but ſelfwill, that he was forced to give way to Minutius frowardneſs, though it tended almoſt to the hazard and the overthrow of the whole Roman Army: And becauſe the Commiſſioners are the perſons through whoſe hands the execution of all theſe Laws muſt paſſe, I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them: And I intend to purge the Commiſſion of ſuch of them as theſe Laws have diſalowed, and to that purpoſe I have framed this inſuing caſe, which I take it will give us occaſion to call them all into queſtion, and to ſever the juſt from the unjuſt, the ſufficient from the unſufficient, and the learned from the illiterate.

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:

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

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.

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.

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.

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

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

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.

Argumentum Lectoris.

I meant it not for a point in this caſe, whether goods might be let with Land, nor whether a ſtock might be leaſed with a Farm, becauſe I finde the Books of 1 H. 6. 1. and many others full in the point that they may. And although by the taking of them back again by the Leſſor they will thereby ſuſpend no rent, yet in the original demiſe they may be a cauſe to increaſe the rent: but my point herein is double.

Firſt, whether they will paſſe in Remainder, as my caſe doth limit them.

Secondly, whether they will inable B. and C. to be Commiſsioners of Sewers alowed by this Statute.

I do not onely finde ſtock let with Farms, but alſo joyned in Real actions with Land: for in the Writ of Aſsize the words be, Quod vicecomes faciat Tenement' illud reſeiſiri de catallis quae in ipſo capta fuerint & ipſum Tenement' cum catallis eſſe in pace uſ que , &c. Theſe doubtleſs were ſuch goods as ſtocked the grounds, and which uſually went with the ſame, for in ancient times when any farmed grounds, they uſually farmed the ſtock thereon going, and this appears by ancient preſidents; Sed nunc aliud tempus.

In the Writ of Ejectione firmae in the Regiſter be contained theſe words, Oſtenſum quare vi & armis manerium de Dale quod C. prefat' A. dimiſit ad terminum qui nondum preteriit intravit & bona & catalla ejuſdem A. ad valentiam, &c. in eodem manerio inventa caepit & aſportavit. So that in thoſe Writs of Aſsize and Exjectione firmae, the one to recover the Freehold, the other the Leaſehold: We finde goods which went with the Manor or Farm made parcel of the plaint; and I take it, damages ſhall be increaſed therefore; for theſe were ſuch goods as ſtockt the Farms. And in Wrotſly and Adams Caſe in Plo. Com. Exception was Wrotſley and Adams Caſe. taken in abatement of the Writ, becauſe the words (bona & Catalla) were left out of the ſame: Yet in my opinion, no eſtate, neither in preſenti nor in remainder can be made of Goods or Cattel, neither ſhall they go with the Land in point of Eſtate, but ſhall paſſe to the Leſſee, and after to him in the remainder, as a dependancy upon the Farm: And the Heir ſhall have Heir-looms, together with the Manſion Houſe, as things neceſſary concurrent therewithal, yet the Heir-looms have no deſcending qualities, but they do go with and wait upon the houſe, as neceſſary Inſtruments fitting to be uſed therewith; neither can it be gathered by the Book of 37 H. 6. fol. 30. that the Book called The Grail (which was deviſed by will to A. one of the executors 37 H. 6. to have the occupation during his life, the remainder thereof in like maner to B. for his life, and after to be diſpoſed by the executors to the Churchwardens of Dale) that it did paſſe to A. and B. in point of Eſtate, but only the uſe and occupation thereof was diſpoſed to be ruled according to the ſaid Limitations, but the property remained in the executors.

So in Paramore and Yardleys Caſe in the Com. and Paramore. Yardleys caſe. Mannnings caſe. in Matthew Mannings Caſe in Cooks Reports, a Term of years could not be deviſed to A. for life, the Remainder thereof to B. for his life, to paſſe in this maner in point of Eſtate; neither could theſe Eſtates be made thereof, but by conſtruction the ſame was diſpoſed of to go by way of executory deviſe; and ſo the ſtock in my caſe was not transferred in point of Eſtate with the Land, but in point of executory diſpoſition of the Occupation and uſe thereof onely; and therefore if one let a ſtock of cattel or ſheep with grounds at the end of the Term, the goods as acceſſary with the Land as principal ſhall return to the Leſſor, and during the Term the Leſſor hath the property of them, and the Leſſee the poſſeſſion thereof, and the Leſſee ſhall have the yearly profits thereof for his Rent; and here I do end this firſt point, and will proceed to the reſt.

The ſecond Point.

There be two Joyntenants, and one of them and an eſtranger do diſſeiſe the other; what intereſt the ſtranger gaineth thereby is the queſtion.

I am clear of Opinion, as many books be, That one Joyntenant may diſſeiſe his companion by an expreſſe Ouſter, but when a ſtranger joyneth therein, in what part that doth alter the caſe is the matter; for if the ſtranger ſhould get a joynt Eſtate in poſſeſsion with the Joyntenant whom he joyned withal, that were to make a double Joynttenancy in uno eodem que gradu: for the Joyntenant which committed the diſſeiſin, which hath the poſſeſsion, and the Joyntenant which was diſſeiſed and which hath the right, do hold Joyntenancy ſtill; for by 36 Ed. 3. right may hold 36 Ed. 3. Ioyntenancy with a poſſeſsion, and the one may take by ſurvivor from the other, in 9 H. 7. fol. 23. That he in Remainder and a ſtranger may diſſeiſe Tenant for life, and ſhall be both diſſeiſors; but in that caſe they were both ſtrangers to the particular Eſtate: Alſo it is manifeſt that one Ioyntenancy may be built upon another, As if two Joyntenants be diſſeiſed by other two Joyntenants of the right ſemel, but not ſimul: But in our principal caſe, Whether one Ioyntenant might hold the poſſeſsion of a Moyety with his firſt companion in Ioynture, with his moyety in right, and can alſo uno tempore hold Ioyntenancy in poſſeſsion with a ſtranger, of the moyety upon which the diſſeiſin was committed, I ſuppoſe he cannot, becauſe then he ſhould hold partnerſhip with both of one thing: And therefore in my opinion the ſtranger getteth nothing in my caſe, but is onely a Coadjutor, and no Diſſeiſor, which gets the Tenancy.

The third Point.

But admit the ſtranger did get a moyety of a moyety by joyning in the diſſeiſin, then what alteration this releaſe will work in my caſe is the next queſtion.

It is true as Mr. Littelton ſaith, That if there be two Littleton. Diſſeiſors, and the Diſſeiſee releaſe to one of them, he ſhall hold his companion out of all; the like Law is in my caſe of two abaters and two intruders: but if two diſſeiſors be, and they make a Leaſe for years, rendring Rent, and then the Diſſeiſee releaſeth to one of the Diſſeiſors; I ſuppoſe this releaſe ſhall inure to both, becauſe the Leſſee for years, whoſe Eſtate ſhall be ſtrengthned by this releaſe, is in by the Title under both of them, and now they are Tenants of a Reverſion onely, and of a Rent thereto incident, which was not got by the diſſeiſin, but was compoſed by the Legal contract of the parties.

So if two be admitted to a Copyhold by Tort, or to an Office in a Court of Juſtice unlawfully, though their entry be unlawful, yet becauſe they came in by admittance, which is at the door of Juſtice; I ſuppoſe therefore, that if a releaſe be made to one of them by the diſſeiſee, it ſhall inure to both, becauſe they had ſome colour and countenance to enter, more then expreſſe diſſeiſors or intrudors have.

But if a Son and a Stranger diſſeiſe the Father, and after the Father dyeth, and the right deſcend to the ſon, by this releaſe in Law, and by the acceſſion of the right by deſcent to the tortious poſſeſſion, it doth inure only to the ſon; and although this releaſe was upon condition, which by the breach thereof ſeemeth to ſet the Releſſor in the ſame ſtate he was before, yet it doth not admit the Joynt diſſeiſor which was expelled thereby to become a copartner again with his fellow: As if the ſon and a ſtranger diſſeiſe the father, and the father dyeth, the ſtranger hereby is expelled by the deſcent of this right to the ſon; yet if after a more near Heir is born, as the Elder brother dyed his wife Einſent with a ſon, which after the deceaſe of the Grandfather is born, whereby the Inheritance of this Land is his; yet the other Joynt diſſeiſor which was expelled by the deſcent of the right of his fellow diſſeiſor, by the departure of the right with the poſſeſſion, cannot enter upon his fellow diſſeiſor, in my opinion.

But now the queſtion is further, what is reduced by this condition, the right only which was releaſed, or the poſſeſſion together with this right; for if but a right be reduced, then a deſcent hapning may perchance Toll the entry of the Releſſor, and ſo he may be put to his Writ of right in Fee: And if it be a right of an inferior degree; as in our caſe it was but for life, then he ſhould be with out remedy.

But in my opinion where the releaſe doth inure by way of 17 Aſſiz. pl. 2. 17. Ed. 3. entry and Feoffment being upon condition, it may in that caſe by the breach of the condition reduce the poſſeſſion, and give the Releſſor a Re-entry, becauſe in Intelligenti a legis the Land was paſſed thereby, and not a right only; But if it had inuted by way of Mitter le droit only, I take it Bevils Caſe 4 Report. then it would reduce but a right; But in our caſe I ſuppoſe if it had had any working at all, it was by Entry and Feoffment; yet I think nothing did inure thereby to the ſtranger, which in my caſe is called D. becauſe he wanted the Freehold whereupon it ſhould inure.

And ſo I end my Common Law points, and I will now in hand with my Statute.

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.

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

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.

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:

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

The other, of Forty pounds for his contempt.

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.

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.

Firſt, he muſt be free of a City, &c. If he want any of theſe, then he is out of this Branch of this Statute. Secondly, he muſt be there Reſciant, and Thirdly, he muſt have in clear moveable Subſtance, One hundred pounds; and Therefore what perſon is ſuch a Freeman, is now to be handled.

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;

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

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.

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.

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,

Firſt, by Service in his Apprentiſhip.

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

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, 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 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 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 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, 〈1 page duplicate〉 〈1 page duplicate〉 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 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.

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 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, 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 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 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 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. 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, 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 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.

Firſt, in the forfeiture of a Hundred Marks.

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

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:

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.

Secondly, to ſurvey the Weres, Mills, Stanks, Stakes and Kiddels in old time made and levied before the time of 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.

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.

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.

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.

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.

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 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;

The one is the periſhing of the Kings people;

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, 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 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 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, 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 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 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.

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:

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 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 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 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.

Finis hujus quartae Lecturae.
Quinta Lectura.

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 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;

Firſt, I delivered my opinion touching the extent of this Statute, which was as large as the Realm of England; and that the Engliſh ſeas were within the Realm.

I made it to appear, that the Dominion and Empire of theſe ſeas, The legal power of Adminiſtration of Juſtice, The property, profit and poſſeſſion thereof, doth appertain to the King.

And that theſe profits were of two kindes, Real and Perſonal.

The Real profits were the grounds relinquiſhed by the ſea, which were always ſuch grounds as had been always before covered with waters: But ſhores and ſuch grounds which Alternis vicibus, were wet and dry, were not accounted relinquiſhed grounds, and that relinquiſhed grounds belonged to the King; but the ſhore and caſual drowned grounds might belong to a ſubject.

The Perſonal Profits of the Sea did conſiſt in Wreck. Flotſan. Jetfan. Ligan; and great fiſhes, which are due to the King by the Royal Prerogative of his Crown; But ſubjects might have the Inheritance of the firſt four by Preſcription, and of the laſt by Charter from the King.

Then I deſcended into Iſlands; Which are of two ſorts:

Firſt, on the ſea, old ones and new ones, That both were within the Kings power, and the new ones His in property.

Freſh Iſlands in the Land might belong to ſubjects; The nature of them all were, that they were undi que circumdatae aquis.

I then landed at the ſhore, which in definition containeth thoſe grounds which extend from the loweſt Ebb to the higheſt Flood; That the King had the property thereof de Jure, a ſubject might have it ex perquiſito, and the people had their uſum neceſſarium.

I proceeded further to the Coaſts, whoſe content and contingent I deſcribed ſo near as by Hiſtories I could inform my ſelf; And ſhores and coaſts I held them to be Maris acceſſoria.

From theſe I proceeded to Creeks, Havens and Ports, and theſe I ſet forth in their ſeveral kindes.

And I concluded with the compaſs of my Statute and my Commiſsion, and with the diverſity thereof, That within the circle of my Statute, Seas, Iſſes, Shores, Coaſts, Ports, Havens, Creeks gained, and relinquiſhed grounds were comprehended, becauſe that might depend (in poſſe) but yet the Commiſſioners which was (in preſenti operative) did extend but to the utmoſt Banks and Walls towards the ſeas: And I concluded the points of my Caſe with the difference between grounds left and grounds gained from the ſeas; and thus I ended my firſt Lecture.

The ſecond Lecture.

IN my ſecond Lecture I came on Land, and took upon me to ſet forth her friends from her foes; her friends I counted ſuch as had defended her from the violence of the ſeas, and from inundation of ſalt waters.

And theſe were her friends (viz.) Banks, Sewers, Goats, Calceys and Bridges; theſe are to be maintained and repaired, and are the Defences which I fully treated of.

And theſe were the enemies, Streams, Mills, Ponds, Fiſhgarths, Mildams, Locks, Hebbingweres, Hecks and Floodgates.

Theſe are Lets and Impediments which this Statute ſpeaketh of, and are to be corrected, reformed or put down as cauſe ſhall require.

I ſhewed then that Rivers were of two kindes, Royal and Common Rivers; That there were other inferior kindes of thoſe watery inſtruments which might take place after Rivers, as Ditches, Gutters, Sewers, Pools, Ponds, Springs.

That water is the ſubſtantive of all theſe, and if it be a running water at random, then it is a ſtream; if it be a running water, and pent within Walls or Banks, then it is a River, Gutter, Ditch or Sewer; Theſe in their ſeveral kindes I did diſtinguiſh; And Springs I held to be the vital ſpirit of them all.

I then deſcribed the Commiſſioners maner of proceedings, which might be three maner of ways; By view and ſurvey, and wherein they conſiſted. By Jury, and on what parts that ſtood. By diſcretion, and the diverſities and definition thereof.

After theſe I took upon me, by how many ſeveral ways the defences might be maintained, which were nine in in number, 1. Frontage. 2. Ownerſhip. 3. Preſcription, 4. Cuſtom. 5. Tenure. 6. Covenant. 7. Uſus Rei. 8. A Townſhip; and 9. By the Laws of Sewers.

All theſe I proved by Reaſons, Preſidents and Authorities, and did at large diſcourſe of them.

Then I came by the courſe of this Caſe to treat of Seſſes, Taxes and Lays ſet by Commiſſioners of Sewers, whereby I found ſome Inheritances there were which were ſubject to theſe ſeſſes; as thoſe that follow Houſes, Land, Meadow, Paſture, Woods, Heaths, Furs, Moors, Mariſhes, Rents, Ferries, Piſcharies, Commons, Free paſſage, Parks, Warrens.

And many Inheritances I found in reaſon freed from theſe Taxes and Lays, as Tythes in Spiritual hands, Annuities, Chaſes, Penſions, Proxies, Portions, Marts, Fairs, Markets, Offices, things in Action, Conditions, Contingents, Uſes, Preſentations, Founderſhips.

I alſo found theſe Seſſes of three kindes, viz. Cuſtomary, and then they may binde the Mountains as well as the Valleys. Hereditary, and then the particular Tenant and the Reverſion muſt both contribute. Temporary, which bound the Poſſeſſor.

And here I ended my ſecond days Lecture.

The third Lecture.

MY third Lecture I did diſtribute into three general heads, which were meerly the grounds of the execution of theſe Laws.

Which conſiſted either in puniſhing the body and perſon of the Delinquent with 1. Impriſonment. 2. Fine: and 3. Amerciament.

Or in doing Execution upon the Offendors Eſtate, 1. By Diſtreſs: or 2. By ſale thereof.

Or otherwiſe in extending it upon a mans perſonal Eſtate, by 1. Charging of the Land perpetually: or 2. By the abſolute ſale thereof.

And under theſe general Rules I compriſed theſe particulars which follow:

Firſt, for the Honor of this Commiſſion, and for the more neceſſary execution of theſe Laws, I found them out a Court, wherein I ſet forth in what caſes Commiſſioners might Impriſon the Bodies of Delinquents, and in what caſes they might impoſe a fine, and when Amerciaments be due; and then I ſhewed that for ſome tranſgreſſions neither Impriſonment, Fine nor Amerciament was to be impoſed.

I then came to Diſtreſſes, and held a treble diſtinction of them (videlicet) that ſome were 1. Judicial, and iſſued out of the Judicial Records of this Court. 2. Other Miniſterial. 3. The third Legal; wherein all theſe Diverſities I ſcrewed out by proved Authorities.

Then I ſhewed in what places theſe Diſtreſſes might be taken, when upon the Land charged, when within any place within the extent of this Commiſſion, and ſometimes within any place of this Realm; And when the proper goods of the party might be taken, and when the goods of ſtrangers, and when goods may be ſold by this Law.

Afterwards according to the order preſcribed me by my Caſe, I declared that there were ſome Interrupters to the Execution of theſe Diſtreſſes.

The one was by ſuing Replevins, wherein I took theſe diverſities:

That a Sheriff being an inferior Officer could not of his own power deliver a diſtreſs taken by warrant of Sewers; But that the Commiſſioners of Sewers are bound to obey a Replevin coming out of the Kings Courts at Weſtminſter, Quia de altiori natura; Thus yet notwithſtanding goods taken by a Judgement were exempted from that Replevin.

Then I proceeded to the charge of Lands, whether a perpetual charge might be impoſed, or not.

And from thence I came to Sales, and thoſe I diſtributed into four points; Firſt, for what cauſe. 2. What Lands. 3. Whoſe Lands. 4. To whom theſe Lands might be ſold.

I after came into the Tractate of Legal proceedings, which may be uſed in our Court of Sewers; and firſt when and which preſentments of Sewers are traverſable, and which not.

And then wherein a party wronged may have his juſtice in this Court, and in what caſes not.

And whether the ſtrict words of the Statute would admit of Exemptions, and the difference of them, that ſome were general, others ſpecial; and therein I ended the Third days Exerciſe.

The fourth Lecture.

THe fourth day I treated of the Ability and Non-ability of the Commiſſioners, either by reaſon of ſome perſonal defect, whether it conſiſted in Sex, Exile or other impediment that way.

And what Eſtate and value of Lands made one a competent Commiſſioner, and what did the contrary; and the times when the Commiſſioner muſt have this Eſtate.

Then I delivered my opinion upon the words of the Statute, which be valuable Hereditaments to inable a Commiſſioner, and which were not.

Then I proceeded to intreat of a Commiſſioners Ability in goods and moveable ſubſtance, and which were moveable ſubſtances within this Statute, and which not.

And becauſe in the Citizen-Commiſſioner Three things were required to make him able (viz.) Freedom, Eſtate in goods, and Reſciancy, I therefore handled fully all theſe parts thereof.

After all which, becauſe I had before this time no fitting opportunity to treat of Lets and Impediments, I therefore in this Lecture diſpoſed my caſe in ſuch ſort as it took hold of them all.

And firſt, becauſe the Statute I read on confirmed all other former Laws concerning the ſame, I therefore repeated them all from Magna Charta to this very time, and gave an explanation or declaration of them all.

I then diſtributed the learning of theſe Laws into 3 heads:

Firſt, that theſe which had the ſtrength of a Cuſtom, and were grown to be particular Inheritances of private perſons, could not be extirped.

Secondly, and whereas ſome were newly erected without Authority, they might be overthrown.

Thirdly, and whereas ſome were ancient, and were exalted above or beyond the ancient aſsize, the exceſſe might only be abated; with theſe differences I ſatisfied theſe Statutes.

Then came I to our Statute I read on, & therein I took new diverſities that was upon the Three Clauſes of my Statute.

The firſt did maintain the defences.

The ſecond deſtroyed the offences.

And the third was a general Clauſe, reciting the defences and offences together, and did give the Commiſsioners power to reform or amend, repair or put down, as cauſe ſhould require.

Wherein I publiſhed this learning thereupon, That if an old Wall, Bank, Bridge or other Defences, were found to be out of uſe, it might be extirped.

And if a Were, Mill, Mildam, Stanks, Stakes, Piles or Floodgates were found beneficial to the publike good, they might be preſerved and maintained.

And I vouched ſome preſidents, at whoſe charges the ſaid Lets and Impediments ſhould be removed, and I ended my Argument with this, In what caſes Commiſſioners of Sewers might make unnavigable Rivers navigable, and and where not; and in that I concluded my fourth Exerciſe.

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 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 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;

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

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.

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.

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.

A Law.

A Law is properly a matter which hath taken his eſſence and power by a Cuſtom time out of memory, as the Common Laws have done; Or elſe is a matter Acted and Enacted in Parliament by the King and the great Counſel of the Realm, and by the Authority thereof, for the ordering of mens Bodies, Lands and Goods; and ſuch a Law is hereby intended, becauſe the Laws which the Commiſſioners ſhall make have the power of an Act of Parliament to ſtrengthen and aſſiſt them, and they are to receive life and perfection from this Statute I read on.

Ordinance.

AN Ordinance is a word having a more private and leſs powerful ſignification then the word Law hath; for it is a Law but of a ſecundary power, enacted by a Corporation, Company or Commiſſion, proceeding meerly out of the Power and Prerogative of the King by Charter, Grant or Commiſſion warranting the ſame, as thoſe Corporations, Societies and Companies which have power by Charters or Patents to make the ſame; as is ſet forth in the caſes of the City of London, and of the Chamberlain of Londons Caſe in Sir Edward Cooks Reports.

Alſo Ordinances may be made by the power of a Court, as in a Court Baron to make Orders, or by the Inhabitants of a Town by Cuſtom, for the ordering of their Commons, Repairing of their Churches and Highways: And theſe are more properly by-Laws then Laws; for a Law is either the Common Law, Cuſtomary Law, or an Act of Parliament; all which are of greater force then any Laws made by theſe ſecundary means, which of themſelves are of little or no ſtrength but as they are aſſiſted by other primary powers.

Decree.

A Decree is neither a Law nor Ordinance in proper definition, but is only a Sentence or Judgement in a Court of Juſtice, delivered or declared by the Judges there, by and through the power & ſtrength of a general former Law, for Decretum eſt Sententia lata ſuper Legem.

So that a Law is a general direction for a multitude.

An Ordinance is a ſubordinate direction, proceeding out of a more general power.

And a Decree is a Sentence delivered for or againſt a particular perſon, grounded upon the ſaid Laws and Ordinances.

Continuance of Laws.

IT comes now fitly for me in turn and courſe to declare the continuance of theſe Laws, Ordinances and Decrees; for it is to be obſerved, that ſome of them be but temporary, though others perpetual.

The words in our Statute are, That every Statute and Ordinance made before the Statute of 23 H. 8. concerning the things and matters therein mentioned, as well in the time of H. 8. as of any of his Progenitors, not being contrary to this Statute, or heretofore repealed, ſhall ſtand in force for ever, and are commanded to be put in due Execution: But this clauſe is intended of all Acts of Parliament made touching the Sewers, and be not intended or meant of Laws and Ordinances made by the Commiſſioners of Sewers themſelves.

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 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 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 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.

FINIS.