THE READING OF That Famous and Learned Gentleman, Robert Calais 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 Commonwealth, 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 Public a Necessity, that I did conceive this Learned Piece upon the Laws of Sewers would come seasonably abroad, and find an Entertainment suitable to the usefulness of it at this time, when the Country is almost become Unpassable by the late Troubles; wherein the endeavour was more to be secured at home from them that were abroad, then to Traffic 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 add to your Cheer is, That I had public 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 withal, the misfortune is mine, and I must Keep it. Farewell. ❧ 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 the 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, etc. What grounds shall be said to be left by the Sea. The Readers Tenets thereupon. The Shore what. Seacoasts 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, What 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 King's Counsels 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 Tithes 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, etc. for an Annuity 3. For Common of Pischary in Fens, etc. 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, What 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 Entailed, or not. 2. Whether it be an ordinary Entail 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 kinds 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 proceed, 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 kinds 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 manner. 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 Labours. 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 complete 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 yourselves the best Companions of my forepast and present life. I made a question, when it came to my turn to read, 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 myself both in Credit and Conscience bound to undertake this burdensome place, for the maintenance and preservation of the honour 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 practice of my Profession spent, but, I hope, little consumed thereof; In which time I launched forth my Ship (In profundum maris) for a Voyage to the Sea, and now she is returned to your Shores, furnished and balist with Merchandise of several estimates: By my Ship I mean my Statute which I read on, which be the Laws of Sewers; the Merchandise 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 intent the Officers of this Law; the Merchant's place I reserve unto myself: The Wares brought home be of divers sorts, some only fit for the Imperial Majesty of a King, and these be Royal Prerogatives, showing forth their splendour 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 Merchandise, 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 kind acceptance. Marvel not, I pray you, at these my Sealike salutations, for this day I am become god Neptune's 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 Volumes 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 practice 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 Country of Lincolnshire, and other Maritine places of this Kingdom, than this is. And Fifthly, His Majesty's 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 adjoining 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 wisdom 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 God's determinate will set open, and that the Seas did Suum excedere modum, no power of man's 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 Country; 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, than it may give satisfaction in this kind, that these Laws of Sewers were in these times of great iminency and authority; For there I find two several Writs or Commissions of that nature, The one authorising 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. adds some more power and strength thereto then was before, having backed 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 find 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 circumquaque 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 shows it, viz, A general Act for granting Commissions of Sewers within the Realm, without any word of Restraint, other than 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 straddling and Morgan's Case in Plo. Com. the straddling 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 Politic 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 Entitled 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 Styles may give help in the Exposition, and may serve as an Index or Table to find out the matter, yet it is not fit to rely 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 corpse of the Act perform as much as the Title promised, whereby the Inland Countries of Nottingham, Northampton, Huntingdon, Bedford and the like, may have the use of this Statute as well as the Maritine Countries of Lincoln, York, Cambridge, Norfolk, Suffolk, Kent, Sussex, Hampshire, Devon, Cornwall, Gloucester, 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 intent 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 Countries, which stood in most need thereof, and especially Lincolnshire, where be the huge great and vast Fens and Marshes: 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 Virtue, high Understanding, and Divine Wisdom, 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 read 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 myself 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 intent, 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 kind favour, made choice of them to frame my Reading upon; wherein, if upon your perusal you find 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 choice 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 intent 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 Countries, 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 Majesty's Subjects, which be Owners and Farmers thereof. Thirdly, whereas Navigation, both for the Exporting of our Homebred Commodities, and for the Importing of Foreign Merchandizes is the chief enriching 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 hindrances 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 Majesty's 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 Manor 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 than 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 join 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 intent 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 Manor 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 lie in a foreign County; and so of an Advowson appendent, 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 Manor by Parol, the Advowson appendent, Villains Regardant, and Rents and Services by Attornment of Tenants, will not pass to the Feoffee, till the demesns and Lands be first conveyed. But if the Feoffment be by Deed, than 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 only, 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 shown her the Land, than they married, and he entered in claiming to her use; and these Lands were thereby well conveyed to the said woman by this Livery within the view, in another County. Now it is fit to be declared, what view is sufficient, for there be two manner 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 Manor 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 view 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 view. 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 view. Sed est un altar diversity concernant view Carsi un fait Feoffment de B. acre que gist del altar part dam Mountain tout horse del view, lafoy Liverey de ceo nest bone sans express view tamen tout voile passer per view de part & sic in mon case on part' gist south le flood deal mere ceo non obstant passe ut parcel del manor. Ascuns aver teneus & ceo Knightley pur un in 28. H. 8. in 28. H. 8. Dier que Livercy deins le veiwe doit touts foits este fait in cases de necessity ceo urging in respect deal chose ou del person, deal chose quia leterre gist del further side dun grand ewe ou in le ewe ou ne puit host facile access del person, quia que le Feoffor ou Feoffee soit lame ou infirm, & detraher ceo in question Jeo aye missed mon case quia le Feoffment & Liverey fuit ad plenitudinem maris tamen Jeo sue de opinion que Liverey deins le veiwe puit este fait sans ascun matter de necessity ceo urging & ceo Jeo collect per le liver the 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 blind: So a Major and Commonalty, Dean and Chapter, or other corporate and politic 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 politic 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 altar main. 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 one's person, and where not; as in the Case of Thomas Duke of Norfolk, where upon conveyance of divers Manors to Philip Earl of Arundel his Son, there was a Proviso, That the Duke might revoke the same upon signifying of his mind under his own proper hand in writing, etc. 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 settled 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 than 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 expressly tied to this view. And we see in views in an Assize, the under Sheriff, or 36. H. 8. Dier. the Sheriff's 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, than the Livery may in such a Case be given and taken by Attorneys within the view, as well as in Combs Case in Sir Edward's 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 alleged 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, than a Deputy cannot make a Deputy; but yet he is not merely 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 jointly, one of them cannot take it; and if in our Case the Lessee had died before entry, the Livery might have been made to his Executors, and powers and authorities cannot be apportioned and come to Executors in such manner; Ergo, It is more than a power of a Letter of Attorney for the reasons aforesaid, and for these ensuing: 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 join 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 join in Advoury. And in many Cases, the Lessee shall have aid 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 aid 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 join in this Letter of Attorney; and hereby I suppose I have conveyed a good Estate in the manner 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 Admiral's Charter. in it, Quod habeat potestatem in causis maritimis ac omnia bona waviata Flotsan jetsan & 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 King's 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 the 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, Murder, or other Felony be done on the sea coast, the Offenders shall be tried 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 attach 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 tie 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 King's 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 alleged in Sir Henry Constables Case by way of Custom 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, Customs 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, Lacy's Case. and that is Lacies Case, where one was stricken on the Seas, and died on the Land, that the Common Law could not try this murder: It is true, because that trial 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, than 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 undique circumdatus aquis, pag. 153. And with this agreeth Britton, in his Title of Purchase, England of Anglia itself is not Insula, because it is not undique circumdatus aquis. But England and Scotland be one entire 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. joins to the Sea, but towards some parts of Scotland. Gernsey and Jernsey be Islands on the Sea, but it seems by the Resolutions in calvin's 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 only 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 Derby 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 favour of these books, that is, no necessary cause to avoid that Office; for in my Opinion the said Office of the Earl of Derby 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 situate in the midway between England and Ireland. Sed de qua utrique 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 called Silly, situate 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, than 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, than 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 utraque parte fluminis prope ripam praedia possident pro modo latitudinis cujuscunque 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 quoque erit in metienda vicinitate insularum quia potest quis in hoc de facili decipi ponatur igitur punctus quod in medio inter utrumque 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 usque 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 calvin's 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 ancient Laws of that Nation upon the conquest are extinct; but the Law is not so of another Christian Region, as Calais, Calais. Guienne. Bulloign. Ireland. Guienne, Bulloign and the like. And although Ireland was under the obeisance 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 been 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 satisfy 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 Custom 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 accrue 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 oftentimes ruled for the King against the Subject; for at Crossed in the county of Lincoln, 1600. Acres were gained from the Sea, affront the Manor 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 Custom 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 man's Manor, which were not fit a subject should have this large Inheritance by pretence of such allowed Custom; 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 than 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 Manor 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 Tithes 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 alleged 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 wild 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 Manor 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 custom, but that which lieth in use, which is the life of them both; but lands and grounds which have always been Sea, could not be nor lie in use, and therefore they cannot be claimed, nor the same can be bounded out by prescription or custom; 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 Manor, 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 custom can fetch lands further than 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 foe. 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 adjoining should have them, was there made a question; but in that Case there is an excellent precedent 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' Abbess 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 absque hoc quod appropriavit sibi prout per presentation' predic' supponebatur. And the Attorney of the King maintained the contrary, and thereupon 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 precedent the Law was taken to be, that these grounds left by the Sea to the Land, were in the County of Norfolk, whereto they did adjoin, 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 unusual flood had gained hastily a great parcel of the other Lord's 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 men's gounds lie 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 find that Nilus every year so overflows the grounds adjoining, 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. lie 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 King's Bench of a Judgement there, like an Appeal to Caesar, than 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 inquire 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, than 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, foe. 129. doth force much against the Prince's Title; for there it is put, that the Bishop of Durham had Liberties and Privileges in Terris suis inter Fluvios de Tyne de Tese, and afterward purchased more Lands between these two Rivers, the said Liberties and Privileges 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 Privileges confined to certain Precincts or Dominions, cannot be extended further, though the Dominion be enlarged, and that they shall not be enlarged with the enlargement; 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 Manor; 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 Custom 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 perceivable means, accrue 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 Latin 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 quousque maximus Hibernicus, & jus fluctus eluderet & quousque 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 Saviour Jesus went into a ship and sat there, and the whole multitude stood on the shore, and he spoke 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 Manor 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 Cynic, as Croesus the rich King, Casam. 161. Ponere & retia siccare; but our Common Law of England doth in reason much surpass 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 justinian 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 justine treating of Alexander the great, it is reported of him, that he entered into Licia and Pamphilia, and won and conquered all Justine. the sea coasts; this could be taken for no less than whole countries; for Alexander's great mind and huge Army, could not march on a molehill, 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 Galilee, so that it may thereby be gathered, That these coasts were near the sea, for our Saviour was no sooner out of the coasts but he was on the sea, which shows that sea and coasts be contiguè jacentia, yet no certain definition can I find 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 err 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 itself 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 find 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 trial, A. It is that all felonies, etc. done upon the Sea, Haven or Creek, where the Admiral hath Jurisdiction, shall be tried 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 entering 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 apparent 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 harbour and safe arrival for ships, boats, and ballengers of burden, 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 & januae 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 privileges: 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, Holinshed. 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 than ordinary, and more than the sea is, but it is no usual or accustomed place of arrival for ships; and commonly it hath neither safe harbour nor legal privilege. A Haven is properly a safe place of harbour for ships, but may be without any privilege at all, of which kind I know some. And a Port is not only a safe harbour for ships of the greatest burden, but it is also always graced with legal privileges; and this appears so by the Statute of Magna Charta, Magna Charta, cap. 9 cap. 9 Quod omnes Communitates & Barones dequinque portibus & omnes alii portus habeant omnes libertates & liberas Consuetudines, which proveth my former definition 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 provisoes as be limited and set down in that Statute, should be good Leases formerly made, though all the provisoes 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, than 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 only 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 tied 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 falsify 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 tied 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 alleged that they cannot extend to the new enlargement: for Mr. Blow. in his Com. fol. 129. saith, That Laws Blow. Com. and Privileges tied to a certain Place or Precinct, cannot be fol. 129. extended or enlarged beyond the ancient Bounds, although the Predinct be enlarged. As the Case in 7 H. 6. fol. 32. 7 H 6. fol. 32. where in a Nativo habendo, a Villain had remained a year and a day in London, which was ancient Demesn, and there was a privilege, 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 privilege; but because since the said liberty granted the bounds of London were much increased, therefore it was there held, that the said liberty and privilege did not extend to the new enlargement. And the Case is also put in the said Comment. 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 Manor 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 Privileges, 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 increase 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 Saviours 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 relinquished 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 succour of the country, 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 elsewhere in this Realm, yet that was done at the labour 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 intent 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 intent, 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 itself 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 Let's, Impediments and Annoyances which are to be put down or reform, 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 Manor in the county of Lincoln, in which Second Case. be Copyholds, to B. a younger 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 Manor, the Copyholder for the Copyhold Land, and the Town of S. and also the Parson there for his Tithes, 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 younger 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 manner 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 endeavour myself 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 account 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 myself 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 accrue 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 accrue 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 favour 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 find 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 disallow 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. entered, 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, than the Obligation to be void; and if he do not infeoff him, then to pay Ten pounds at Pentecost, than 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 add 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. died first, then is B. never like to have any benefit thereof: And if B. himself should die 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 die 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 moulded 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 Manor 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 altar 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 shall have the Lands to him and his heirs: In the first Case, the Fee-simple accrueing 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 accrue 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 Littleton's 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 jointly 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 Manor 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 altars in the party's 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 than 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 Knight's service, and he in remainder died, his heirs within age, and then the Lord granted away his Signiory, and then Tenant for life died, 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 waist, remainder for his own life, the privilege 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 Manor, and a Copyhold is forfeit, and then Tenant for life died, 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 died, and after his death without issue, the wife's 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 Aid 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 memorial 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 than other grounds adjoining as it pleased the Creator, when the first huge Chaos was separated, divided and distributed; Artificial, when it is cast by man's hand. Justinian the Emperor treating of these in his Institutes, and his title de rerum divisione describeth them in this manner, Riparum usus est publicus illar' verò domin' ad eos pertinet qui proximior praediis domini sunt, itaque 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 adjoining, 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 King's liege people, as to tie the ships and boats to the Trees, and to tow them to and fro, and to lad 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 justify the digging or casting of them down, whereby the people shall be hindered 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 aught 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 adjoining, 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 King's suit for the general wrong done to the King's 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 lie not next thereto; but of a Bank the property and ownership is his whose grounds adjoin 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 adjoining; 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 clear 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 watercourses through Landfloods, which have done some damage to the grounds next adjoining; 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, etc. And also in the preamble of the Statute the words there be, that by reason of the outrageous flowing surges & course of the sea in & upon Marsh grounds, and other low places heretofore through politic wisdom won and made profitable for the great Commonwealth of this Realm, as also by occasion of Lands, waters, and other outrageous springs, in and upon Meadows, Pastures and low grounds adjoining 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 intent to be dirupt, lacerate and broken, but the Walls, Banks and other defences which penned 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 find some ancient Authority in the point out of the Charter of Romney Marsh, pag. where the words be, Ad distriction ' Romney Marsh. faciend' add 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 clear 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 wears, etc. 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 penned are not within the provision of these Laws, but only such as belong to common and public Rivers and ditches, Sewers and streams: for Walls and Banks made and erected as fences to men's private grounds, and there set or made to ditches, gutters and streams, for the draining and watering of men's 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 Commonwealth, 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 hindrance to the common good of the country 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, penned 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 Blow. 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 Tiber, Orontes, Euphrates 19 H 7. and Anfidies, near which Hannibal the Carthaginean General struck the Battle 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 precedent put in this manner, 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 Manor of Dale, which doth extend itself usque 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 usque 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, own the River by several moieties, and the several moieties 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 quoth 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 praecipe quod reddat is brought de una 12 H. 7. fol. 4. acra terrae Cum ' aqua Cooperta. In my conceit the Civil Law makes prettier and neater distinctions of these than 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 air 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 twinkling of an eye, and to be more uncertain in the proprietor, than a Chameleon 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 than 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 apparent 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 kinds be within these Laws or not, though they be not put among the defences which this Statute speaketh of; for that expressly those things which are termed Lets and Impediments, are commanded by this Statute to be removed out of the Rivers and Streams for hindering 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 man's body, by means whereof the increase of the grounds near thereunto adjoining are abundantly multiplied, 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 itself. 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 courtesy, for suffering a Sewer in part of the grounds to be unrepaired, by reason whereof his grounds in L. which the Defendant held by the courtesy 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 Plaintiffs Meadow grounds: So these two Cases sufficiently declare what a Sewer is; and Holinshed 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 than 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 public stream, and a Gutter is a strait 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 kind 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 burden 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 country, 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 manner a standing Water: And there is an old forlorn Dike on the Fen sides in the county of Lincoln, called Caredike, more ancient than 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 countries, 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 kind of current, and which in some sort partake with the Rivers. Pools. A Pool is a mere 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 adjoin to great Rivers, and lie upon the sides thereof without division, they are in a manner part of the Rivers; and of their kind 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 labour of man's hand in his private grounds for his private use, to serve his house and household with necessary waters; but a Pool is a low plat of ground by nature, and is not cast by man's hand. I find 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 fetched. 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 aught 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 find within this Statute, but coupled with such a word, that they thereby seem to be excluded and exiled quite from claiming any privilege of defence by these Laws; for the word (Outrageous) being joined therewith, doth signify the meaning of these Laws to take them to be hurtful, and not helpful; but all this cometh of the word Outrageous, which being but a quality annexed upon accident, may upon just occasion be taken away. And the word Springs of itself 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 outrageous 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 outrageous Springs, may by the provident & discreet care of the Commissioners be so ordered, as the same may be applied & employed 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 dependencies, 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 kinds, I shall therefore put these Cases; First, If the Town of A. want water by the dryness of the season for the use of their cattle, or for other household affairs, as for brewing, washing and such like; and in the Town of B. which doth adjoin 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 adjoin, 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 Republic; Yet if I. S. hath used with his Boats to carry and recarry for the common use of the people in general, than 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 household 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 men's 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. Bridge's are diversely taken in these Statutes, for some are thereby to be maintained, and other some are to be extirped or reform 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 sense 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 since; and I take it, under favour, 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, than 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 meddling 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 lie 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 kind be; viz. London Bridge, Rochester Bridge, the great Bridges at Lincoln, Boston Bridge, and the like; and such as lie on Inland and high countries, over high ways, as Burton, Trent, Ware, Wainsford, Huntingdon 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 kind, are within this Statute of Sewers; viz. to be put down or reform if they be impediments to the Commonwealth, 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 only, but if it be fit to take an Arch away, or to add 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 only 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 myself, 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 horseback 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 Manor of Bracebridge; and of Bartholomew Gregge, who by reason of his house standing at the Bridge foot, called the Hermitage, on the North side of the River, aught 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 allege, 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 overruled 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 King's 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. Goat's 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 find them mentioned in any of the ancient Commissions 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 public State, they may be continued and maintained by the authority of this Statute. New defences. HItherto I have proceeded only 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 allege much matter, and many reasons to make good their arguments; first, out of the words of the Law itself, for thereby it seemeth, that this Statute can bear no such exposition by reason; the words thereof literally taken, seem to extend only 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, etc. by the rage of the Seas, and by the fresh waters descending, be so lacerate, dirupt and broken, the Commission therefore doth authorise 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, etc. 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 enforce 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 Chapel leased to him, and the same de novo construere & constructam curare, which words there bear the same sense 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 expressly, 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 than they might thereby stop up the Havens, which are the Ports of the Realm: And for the justifying of this opinion therein, he allegeth 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 inquire and certify 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 man's 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 endeavour 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 find words in this The Law itself in words extend to it. Statute also, which will tend as much the other way: And they be in the forepart 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 politic wisdom won and made profitable for the Commonwealth of this Realm, etc. 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 vigour and force, yet it is like a virtuous 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 than 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 re-edifying of the decayed old ones; but the learned expositor, whose constructions be not so much grounded upon the letter as upon the sense, may in equal justice extend the sense to new making, as well 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, enlarge or diminish the letter of the Laws in the sense of construction, as by many precedents we find in Mr. Blow. 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 favourable equity as can be, to enlarge the letter of the Law in the sense 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 enforce 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. Blow. also fully demonstrates in his Com. in Easton and Studs Case. And whereas it is formerly alleged, 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 inquire, 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 proceed 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, experience, learning, wisdom and integrity, then to one Escheator, who may perhaps want all those virtues: 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 find, that neither by the letter nor the sense of these Laws, any such exposition can be made, either to the stopping up or hindering 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 controversy 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 Country 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 public good. And a like great controversy did arise in 12 Jac. in the counties of Cambridge, Huntingdon 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 Council, wherein this Order was conceived as followeth. The King's Counsels Order. HIs Majesty's Attorney-General having according to an Order of this Board of the Thirteenth of October last, called unto him the King's learned Council; 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 Majesty's Commissioners of Sewers, for the counties of Lincoln, Huntingdon, 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 practice 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 Sluices 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 Process 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 coercion for obedience to their Orders, Warrants and Decrees, when as the performance of them, the preservation of many Thousands of His MAJESTY'S 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 Majesty's 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 King's 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, encouraging and warranting them to proceed in the execution of their several Commissions, according unto former practice 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 Edmund's Cleric' Consilii. Present at this Order making, were, 1. The King's Majesty in Person. 2. The Archbishop of Canterbury. 3. L. Chancellor Elsmeare. 4. L. Treasure Earl of Suffolk. 5. L. Steward D. de Lenox. 6. L. Admiral Howard Earl of Nottingham. 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 Chancellor 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 precedent of State; and it thereby plainly appeareth, that the King's 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 precedents. 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 country, or for the safety thereof, so that the Commonwealth be therein deeply interessed and engaged; and things which concern the Commonweal are of greater account in the Law, than 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 man's 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 men's 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, Sluices, 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 man's welfare be not intended to the charge, trouble and burden of the country: And with this also, That where any man's particular interest and inheritance is prejudiced for the Commonwealths cause, by any such new erected works, That that part of the country be ordered to recompense 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 Earsbie, Sir George Manners Knight, Sir Philip Tyrwhit, and Sir John Wray, Knights and Baronet's, 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, etc. 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 oaths 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 manner 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 Trials 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 place 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 favour 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, etc. 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 merely an Officer. What things Officers of Sewers may do by Survey only. 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, skill and learning; or otherwise their proceed 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 find 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 strengthened, as cause shall require. Fourthly, also by survey only they may sufficiently inform themselves of the encroachment, and of the straitness, depth, wideness and shallowness of the Rivers, Streams, Gutters and Sewers, and may view the defects in these kinds. 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 oaths 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 happened, 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 manner 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, etc. 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 inquire, 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 tied or bound to do the repairs, and where those grounds do lie, and who be the owners thereof? Fourthly, also it must be inquired by Jury, What grounds lie 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 Sluice, 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, breadth 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, than 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, etc. 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 alleged, 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 only to give the Justice's 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 small 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 showing of what pure metal 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 merely to administer justice 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 judge of the Cause, and gives the rule: But in the case of Legal discretion, there discretion is but a servant, and is tied 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 proceed 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 labour 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 tied 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 Custom. 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 Physicians, 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 ensuing Cases, they will be very helpful to them in their proceed. Frontage. FRontage is where the grounds of any man do join 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 adjoining 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 adjoin 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 adjoining 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 warrant 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 soon 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 bind 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 bind 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 politic 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 dwelled 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 bind his Heir thereto, though he have assets descended to him in Fee-simple, for descending charges will not bind the Heirs, unless he descending have assets, as an equal consideration to bind him thereto; neither will descending assets of Land bind an Heir in this case, unless the Land itself be really tied 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 Porter's Case in Sir Edward Cooks Porter's Case. first Report, it is said, That if Lands were given to repair Ways, Bridges, Calceys or such like, this doth bind 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 satisfy 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 bind himself and his heirs to do the same; but yet this Covenant will not bind 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 bind 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, than the said Lands are therewithal chargeable in cujuscunque 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 employed 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 expressly by the word Heirs in the Covenant. Vsus rei. I Now intent 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 intent 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 than 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 spoke of, do not bind 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 implicit ties only in construction of Laws, and serve the turn only when no other person or persons are bound expressly 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 adjoining 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, than the parties whose grounds do adjoin, and those which have free fishing in the River, and free passage thereon, be all of them to do and perform the same jointly, 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 endeavoured 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 unusquisque 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 elsewhere 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 find 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 kind, 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 tied thereunto by the employed construction of this Statute: And the Statute of 22 H. 8. cap. 5. gave authority to justices of Peace to charge a County, Hundred or Town with the repair of Bridges, if no certain person were specially tied to the repair thereof: and many times in ancient Statutes and Books of our Law, we shall find 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 Murderer; and in 11 H. 4. 2. Brook 94. a Town was sessed for the expenses 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 Godfrey's Case. But it may haps be objected on the other part, That if a Town or Hundred may be jointly taxed, than it might so come to pass, that one man's 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 man's 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 rob 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 men's 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 man's 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 allowed of as a good cause. But Commissioners of Sewers may if they can come to the knowledge of the certainty of every man's Estate, rate in the primary and original Sesse every person according to his several quantity of Estate, which may be done in this manner, 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 man's Estate; and to make and appoint them Sessors to rate every man, or else the Commissioners themselves, having true intelligence of every man's 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 burdened with his Neighbour's charge; and these were good courses to be used within both the letter and sense 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 man's 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 remembered, 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 merely by the Law of the Land; and so is the learning delivered to be in the Counsels Order aforesaid. And I do remember, that at the Assizes held at Lincoln in Anno 12. Jacobi, in a Trial 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 nonpayment 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 tried 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 precedents, 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 precedents, may be doubted whether it be legitimate or not, having no ancient Laws to patronise it. And thus I conclude my third point of my Case, That a Township may be taxed by the Laws of Sewers. Tithes. HEre is likewise in my Case a Parson Rated and sess for his Tithes, 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 kind 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 itself with a long and large arm 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 showeth, 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 privilege, 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 Tithes which are said to be due jure Divine, I have not read that they shall be charged to any thing but to the repair of the Temple in the 18 chapped. 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 chapped Numbers. the Tenth in Israel for an Inheritance; and yet the Levites paid a Tenth thereout to the Priests; and so Clergymen in times passed 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 Tithes, but they be Spiritual charges. And in Mr. Seldens History of Tithe pag. 13. it appears by Collection and Connexion of Stories divine, That the first or Selden. the first year Tithe 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 tied to do the same; for it is held to be more charity to relieve the Church than the Poor: And in payment of Taxes and Subsidies they are granted in their Convocation house, a Council merely consisting of the Clergy, and then are confirmed in Parliament, of which house also they are a Member. And therefore in my opinion, seeing Tithes are so sacred a duty, that a Layman could not have any help for at the Common Law, and were exempt from temporal and profane 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 Tithes in the hand of a Temporal or Layman 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 Tithes be, But came to them by the benevolent gifts of Laymen, and not ex duo dei & evangeliis as Tithes did; and so they took that burden 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 chargeable 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 find 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 Tithes in a Clergy man's 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 endure a charge in this kind, 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 Tithes 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 Seignory 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 loss 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 Seignory, 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 burden 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 easy to be found out, and not imaginary owners as the Lord is. And Thirdly, if the Lord & owner should both be charged pro una eademque 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 altar 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, etc. it altars neither the Copyholders interest, nor the Lord's Tenure, nor doth it in any sort prejudice the custom of the Manor. But than 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 only 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 nonpayment 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 find by experience, and in divers precedents, 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 binds this Copyhold thereto in point of charge. And lastly, this Statute binds such to the repairs which may have good by the doing, or hurt by the neglect: And it is apparent, that by over flowing or inundation, a Copy-holders' 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 Tenants 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 foreign 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 rend 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 Copy-holders' be within other parts of this Law. Now because it is a high point in this Statute, in what manner to rate, tax and assess by the judicious power of these Laws: and in regard my Case toucheth all manner of Sesses and Rates which be or may be imposed by these Laws, I will therefore spread it abroad: and I do intent 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 man's 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 neighbour's 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 situate 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 sense (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 apparent 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 only without a special Custom or Prescription to warrant the same. Annuity. IF a Dean and Chapter or other Corporate persons or Body Politic be by Prescription to pay a yearly Annuity to I. S. and his Heirs, I. S. is not sessable for his Annuity, yet the said Corporate or Politic 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 Politic 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, Marshes and Wastes, may be charged, but Commoners in agris seminatis after the corn severed, as stock Commons which be of a small 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 Coneys, shall be charged if these liberties lie within the Level; but for Chases I suppose one is not chargeable only, for Dear which be ferae naturae not bound to certain precincts, but in that case the owner is only 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 continual 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 enrolled 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 Arable, Pasture, Meadow, Mills, Tofts, and to all other Edifices, Moors, Marishes, 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 than Lands; for it containeth all which the word Lands doth, and all things else which lieth in Tenure: so that I think it shall be but labour 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 Rend 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 Rend, Tenure or profit) here be full words to charge the Lord for his Rent; and so Rend charges, and Rend seck shall be subject to sesses in this kind: 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 small 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 fruitless 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 Edward's 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 expressly 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, than parcel of the possessions of St. John's, 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 arrearages thereof which did incur in his time: And so in the case of a Rend charge, the Lessee is chargeable, and he is to pay the Tithes, 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 apparently 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 King's 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 King's Officers, for allowance to the Farmer or Tenant to the King's 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 man's inheritance, and the several Estates which the parties have therein, when it will scarce be possible by private search to find 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, than they may come before the Commissioners, and show 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 Rend 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 accounted 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 merely 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 aught 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, Tenors, Covenants and uses, as be within this Realm, which be tied and bound to do and make the repairs in this kind, 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 mere 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, Sluice, 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, than 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 apparent 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 Sluice 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 countries be made partakers of the sea Commodities; therefore in my opinion, the extraordinary repairs of these be not altogether tied 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 itself to let in from Foreign parts the Ships and Barks, 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 Foreign Nations our excess of Corn, Cloth, Skins, Led 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 Council 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 countries' adjoining are conveyed. And lastly, it appears by divers Authors, that a country well furnished with Ports and Havens, is not more strengthened then honoured 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 Honourable to our Nation, and the most useful to the enriching 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 myself 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 Tithes, 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, than 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 sense 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, Blow. come. 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 add 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 misspent which is prologued out in preambles, I will therefore now briefly divide this part of this Statute into these ensuing heads: Either in punishing the body and person of the delinquent with Imprisonment, Fine, or Amerciament. Or in doing execution upon the offenders 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 Traitor's judgement upon a Felon, or a Felon's judgement upon a Traitor, is grand misprision; to imprison the body, or to fine the person, where an Amerciament is only due, is not only 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 Manor is belonging to I. S. & Abnepti, and to the heirs, males and females, of their bodies in Frank marriage, 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 assess 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 nonpayment the distress to be sold, without allowance 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 entailed or not? Secondly, Whether it be an ordinary Entail, 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 fancy 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 wont fashion, I intent to maintain the Affirmatives of my Case. First Point. I did not intent 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 Manor 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 Bailiff or Receiver of the Rents of a Manor may be entailed; 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 entailed 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 itself be given in Tail, but having a Manor belonging to it, make the question of more moment; For as the Office Dese is not intailable, so the Land per se may be entailed: 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 kind 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 itself might bear, which could not be entailed; 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 pass 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 entail; 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 Cousin 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 marriage; It is made abnepti, which is the Cousin 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 privileges: But in regard I take it that a Frank marriage doth more respect his original creation In incepto than the descent of the privileges to the Heirs In suo progressu, I take this to be no impediment to hinder this from being a gift in Frank marriage. But here the words in the gift preceding the words Frank marriage 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 marriage 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 marriage, the gift shall be taken a Frank marriage, as in the Case of 2 H. 3. It. suff. Fitz. Mordanc. plac. 52. where Lands were given 2 H. 3. in Frank marriage 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 marriage, 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 marriage, 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 marriage 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 marriage. And the like Law is where Lands are granted in Frank marriage, the remainder in Fee to I. S. and his heirs; the Frank marriage 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 marriage: I am therefore of opinion, that this gift is an Estate in Tail, according to the special limitation, and no Frank marriage. 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 marriage, because adultery and fornication, which is the seed of every Bastard is opposite to marriage, 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 marriage is the material consideration of such a gift, Bastardy the opposite can never (being out of the consideration) come within the privileges 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, than 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 marriage, as expecting to be confirmed thereby; and so a Bastard born before marriage is by the consummation of a succeeding Marriage made capable to inherit to them, if his possession continue without disturbance to his death: Yet in Blow. 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 entereth into entailed Lands, and dyeth seized, this doth not bind 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 Marriage, upon the hope and expectation of a succeeding Marriage to perfect the same, even so the Marriage succeeding to a Bastard's birth gives him and his Issue a privilege in these cases of descent, which is denied to other Bastards or mere Strangers. And I see no reason wherefore that maxim and principle of Law should be altered by the said Statute of West. 2. but because Mountagues Opinion in Mr. Blow. Com. sways the other way; I will therefore submit this Point to men of greater judgement than my own: So that if the Law fall out for the Bastard Issue, than 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 justice. I Am desirous to attribute to this Law all the honour 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 precedents 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 bonham's Case, fol. 119 in the same Report, wherein the principal Case there put sways the same ways; for there the Physicians had power to imprison, and to fine offenders, 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 instant when it is in Commission: And one 'Cause cannot uno eodemque 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 Proceed 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, etc. 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 proceed, 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 bonham's Case the Physicians had no legal proceed, 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 King's Bench a Court of more Eminency than this; But ubicunque fuerimus in Angliae, and for express Authority in the point of Gregory's 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 freeborn Subject; and it is said in bonham's case, 28 H. 8. in Dyer, that liberty is a thing which the Law much favoreth: and I find 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 men's bodies, unless they were express in the point: And therefore in Clerk's case in Sir Ed. Cooks 5 Report, fol. 64. Clarks Case. The case is, That the Term was to be kept at St. Alban, 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. Alban. 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 man's 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 bonham's case in the 8. Report, King Hen. 8. incorporated the Physicians of London, and gave them power by Charter to examine the Imperites, & to find 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 King's Letters Patents they had power to imprison the Body; but I find 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 misdemeanour 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 Chancellor or Lord Keeper for the time being. In Godfrey's Case in the 11 Report, there is a discourse what Godfrey's 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 Court's 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 find 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, etc. Which words are strong, and large enough to authorise 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 lieth 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 kind; 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 marshaled 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 Marshaled 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 manner. And these matters being thus passed over, I shall endeavour myself 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 dissuading 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 fancy 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 King's 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 Huntingdon 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 Carrier, to distrain for it, and he distrained the cattle of Hetley one of the Inhabitants, and Hetley brought an Action of Trespass in the King's 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 King's 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 King's 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 attach Hetley, and in imprisoning of him for the said causes did exceedingly err, and the rather, because they took upon them to overrule the Justices of the King's Bench, being of a higher and greater authority than they were of; But this is no precedent to impeach the power of the Commissioners of Sewers for committing persons offending their authorities to Prison, if their proceed 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 King's streams, as in fixing Piles or Stakes therein, or in stopping, straightening or diverting the course of the waters from their ancient channels 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, than the offender is fineable, Beechers Case but otherwise it is if the offence be not found, but omitted, for then an Amerciament is only 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 immediately, 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 departed 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 account 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 merely the Act of the Court, but if it be imposed upon a presentment found by Jury, than the cause is traversable. Thirdly, all fines ought to be assessed, abated or increased in Plena curia, and not elsewhere. Fourthly, every Fine aught to be reasonable. And therefore I shall put the Commissioners of Sewers in mind 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 quality 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 lieth much in the discretion of the Justices, and I find cases and precedents both ways; for in 41 Assiz. plac. 12. an Officer was imprisoned quousque 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 quousque 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 King's 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 Justice's 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 outrageously 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 kind, 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 ties to repair a Bridge, Calcey, Goat, Getty, Sluice, 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 annoyance 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 tied to cleanse the Rivers for passage of Boats and Ballangers, or for the draining of the waters, if he suffer Sand-beds to lie and choke 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 manner, or by a sudden flood or inundation of fresh waters after a Rain, that thereby the defences are broken down, or caused Sand-beds or other Nuisances 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 hindered 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 Oaths 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 intent to proceed to the fourth point of my Case, and the third point I intent 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 meats, limits and bounds of old time accustomed, or otherwise, or elsewhere within the Realm of England. Three sorts of Distresses. First, there be divers kinds of Distresses (viz.) Judicial, which always issueth out of the Rolls of the Court. Secondly, Ministerial, and such Distress 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 itself. And first of the judicial 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 money 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 cattle 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 Manor, 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 lieth 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 justice 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 juratores 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 precedent itself 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 alleged. Also in 5 H. 7. fol. 3. there is a like Presentment made 5 H. 7. against an Abbot, Quod ipse & predecessores sui, aught 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 one's 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 only 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 justices 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 itself. 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 merely 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 manner, 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 elsewhere. 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 tortuous; 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 sess; 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 Session's Court of the Sewers, A. B. is amerced for Nonpayment 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 Cromwell 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 alleged to make By-laws within the Manor by the Custom thereof: In which Case it is apparent, 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 man's 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 oftener practised then the Law truly decided: But before I shall touch upon the main, I will make an Ingress to treat of such matters whereby the property of a man's goods may be altered without his consent. And first, at the Common Law, if a man's 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 Foreign attachment goods may be attached and sold to another: and in 10 El. Dyer, fol. 279. B. a Custom is alleged to be in York of Foreign 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 find 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 man's person nor his Lands were liable 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 alleged. First, this Statute I read on gives a Distress, and a Distress is but a gage or pledge, and cannot be sold; for if a Lord distrain his Tenants cattle for Rent and Services, he cannot sell the Distress: And although in 10 & 11 El. Dier, fol. 280. a return irreplevisable was awarded to the Lord or Avowant, yet he cannot sell this Distress, 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, express power is given by that Statute to sell the party's goods which doth refuse to pay, Ergo, without such an express 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 express letter of these Laws: and so it may be inferred, that our Statute wanting such an express clause to authorise 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 Distress 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 Distress 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 King's 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 practice, 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 alleged 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 Distress: and with this agreeth 11 H. 4. 14. and 11 H. 4. fol. 2. A Distress taken for the Knight's 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 account 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 debtor's goods for nonpayment 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 express 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 offenders 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 precedent: 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 usque nunc etc. & 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 cattle 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 precedent 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, Than 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 aught to be sold by the power of these Laws of Sewers, but only the proper goods of the party sess and Taxed, though the goods and chattels of other men be Levant and Couchant on the grounds sess 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 alleged 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 enormous proceed 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 find Distress to be the most useful execution of these Laws of Sewers, so I have seen the proceed 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 hindered 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 shallbe 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 Distress 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 Distress 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 than 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 supersede a Court of higher power. Yet if one sue a Replevin, which afterward in Bank was abated, and a return of the cattle 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 cattle, 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 apparent, 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 King's 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 superseded thereby, as the Law is declared in divers of our Books; By the which it is plain, that one's person being in the privilege and protection of the King's 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 process out of the Chancery for a Subject, and after seizure, 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 Process 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 Process they were privileged 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 show 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 King's 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 cattle 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 cattle in Court, neither would the Court order the Defendant to gauge deliverance: so that by these two cases it may seem what a Replevin did lie though another Court had formerly the Jurisdiction of the cattle taken by the Distress: But, under favour, 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 Process, and remained by the virtue 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 cattle were sold away, as in the said two Cases formerly alleged 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 privilege 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 distress 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 privilege or jurisdiction of these Laws of Sewers: But if Carters cattle had been taken, who was the very party sessed, he could have had no Replevin from the Sheriff or his Deputies to deliver his cattle. But although a Replevin doth not lie in the case aforesaid from the Sheriff or his Deputies, Ex officio to deliver a Distress of Sewers, yet out of the King's 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 precedent; for there complaint was made to the King, setting forth thereby, That whereas his Highness 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 Distress taken in the King's 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 King's Courts, which in Law and Justice ought to be obeyed, and not from the Sheriff or his Officers by virtue 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 expressly 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 King's 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 behind that he might distrain therefore, and detain the Distress against gauges and pledges; and yes it was adjudged, that if the Rent were behind and the grantor distrained, he could not detain this Distress 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 Tenants following: Imprimis, To make a general Law to restrain all Replevins, granted either from the Sheriff or the King's Courts, is no good Law or Ordinance of Sewers; for that Replevins de jure are in such cases grantable out of the King's Courts, and such a general Law savours 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 Distress was Sub protectione superioris Curiae, which is of a higher degree than a Sheriffs Ministerial Warrant. Thirdly, if a Distress be taken and sold for a Sesse of Sewers, a Replevin lieth against the buyer, for by the sale the goods and cattle 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 john a Downs be taken therefore on the ground of I. S. which were charged, I. D. may sue a Replevin of his said cattle from the Sheriff, for that he nor his goods were not expressly bound by the Laws of Sewers. Fifthly, a Replevin lieth out of the King's Courts of Westminster, to deliver a Distress taken and detained by the Laws of Sewers, for that they be Courts de altiore natura. Sixthly, a Distress 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 Distress, for that this Distress was not taken or detained by Warrant, Judgement or Decree of Sewers. Seventhly, If upon a Judgement given in the King's 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 party's 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 Distress, and with Grant or Covenant that the Grantee may distrain and detain this Distress 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 intent 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 alleged 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' add 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 find 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 express 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 bind men's 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 bind any man's 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 safeguard, conservation, redress, correction or reformation of the Premises and every of them, and the parties liable to the same, necessary and behooveful 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 bind 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 bind 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, etc. 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 engrossed into Parchment, and certified under their seals into the King's Court of Chancery, with the King's royal assent had to the same, shall bind all and every person and persons that at the making of the same Decree had any interest in such Lands, Tenements and Hereditaments in use, possession, 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 bind as well the Lands, Tenements and Hereditaments of our Sovereign 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 lieth 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 Nonpayment 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 lieth 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 Nonpayment thereof, by the tenor and virtue 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 assess 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 Distress for a sesse which may be taken in any place within this Realm, and the decree of sale of Lands for Nonpayment of a sesse which must lie within the bounds and extent of the Commission; for this Distress is circumscribed to the extent of the Statute, which is over the whole Realm, and the sale is tied 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 Sea-bank 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, than 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 pass 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, than 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 show 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 bind 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 bond 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 bind the heirs in Tail, by the Common Law, by reason of the intended recompense 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 recompenses; 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 show 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 Praemunire are to be forfeited to the King; and in 21 Eliz. one Trudgin was Tenant in Tail, 11 El. and was attainted in a Praemunire, and the question was, Whether Entailed Lands were forfeited against the Issues in Tail, or not? And in Doctor forster's 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 bind 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 Entailed 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 express 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 Entailed 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 than one. But whether a Decree of sale of Lands made by Commissioners of Sewers shall bind 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 bind 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 express words it binds 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 only for the binding of the heirs in Tail. Also if these Lands were charged by Prescription, as many Lands be, than 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 favoured then particular Estates of heirs in Tail: But the case of the Praemunire was penal in point of a forfeiture, which is to be strictly taken for the King, and favourably 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 bind both alike, so in my opinion the sale shall bind 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 politic capacity be sessed to repairs of works of Sewers, their Lands cannot be decreed away from them in such sort as to bind their successors; for as this Statute of Sewers extend to bind 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 dispense with those Statutes. In Croft Crofts and Howels Case. and Howels Case in Blow. Comment. a fine with Proclamations and non-claim by five years did bind 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 Colleges: But the Law is otherwise of Parsons, Vicars, prebend's, 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, prebend's, 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 bind 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, Idiots 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-public, 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 moiety 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 assess shall attend upon the possession which is in Common, or upon their Estates which be several: And although Commissioners in assess be not bound to take notice of their Estate, yet if they take upon them to decree a man's 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 Trespass be done upon Lands which are held in Common, they are to join in an Action, but if one of them die that Action shall survive, for though they were joint in the personalty, yet they disjoined in the realty; And if two Tenants in Common of Land join in a grant of Ten pounds rend 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 joint assess imposed upon Tenants in Common, and one would pay his moiety, and his companion refuseth, the Commissioners of Sewers cannot sell a moiety of the Land, for that it is a joint sess, and was not imposed by moieties, 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 sell 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 binds the person only, as Chancery decrees be, but it binds 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 entail, 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 tendered to them by A. and E. wherein may come justly into our considerations these things, (viz.) Whether Traverses, Pleas of Exemptions, and other legal proceed, may be had in this Court of Sewers, or not; saving I add this, that these decrees of sale being binding, must be certified into the Chancery, with the King's Royal assent had thereto. Legal proceed. 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 Proceed 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 denied; 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 herewithal 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 Process 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 man's Freehold, he may there Traverse the same. But I take it the party must first remove the Presentment into the King's Bench, and there Traverse it; for in the Court Leet, in my opinion, there can be no Traverse taken or tried, no more where the Presentment toucheth Freehold, then where it only concerneth a personal wrong: Therefore the reason alleged 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 Trial; and Justice Fairfax in 5 H. 7. is of opinion, That a Presentment made before justices 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 King's 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 show cause wherefore these goods should not be seized to the King's use: John Lombard came in and tendered 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. expressly: 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 trial 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 john Lombard was, in the the first Case, shall not be peremptorily concluded; for it were no reason one man's goods should be forfeited in another man's 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 Alderman's 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 dimes to the King, by means whereof the Parson lost his benefice, which case is in Br. cases, temp. Herald 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 bonham's case upon a Habeas corpus the Physicians 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 King's suit, as well as at the suit of the party; and a Traverse lieth 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 Leicester's Case in Blow. 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 precedent 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 Nuisances done in the River of Lee, and the same were there traversed and tried: 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 grieved 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 merely 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 bonham's 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 certify 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 & precedents 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 tried 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 manner as is done in the High Court of Chancery, and so he may have the cause here throughly examined. Other legal proceed. THe words of the Statute which give the legal proceed 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 Trespass by Fishing therein, A. B. can neither have an Assize nor Action of Trespass within this Court. So if a Royal or common River hath his current through the town of Dale, and one A. B. is tied 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 adjoining, yet C. D. hath not any remedy to recover his damages against A. B. in this Court for the loss 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 public wrong; Yet by the power of their Commission, and of this Statute, they many times accidentally meet with private injuries, as by the ensuing 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 process 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 party's 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 than his sesses 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 recompense to be made to him for the hurt in his grounds. If Laborers or Workmen, as Carpenters, Masons, smith's, 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 proceed 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 proceed 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 proceed, which if it stood merely of itself would not pertain ad eor' examen, notwithstanding if it be but a matter accidental, and have his dependence upon a principal matter which is determinable in this Court, the other also sha 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 privileges 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 cujuscunque 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 siuè 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 supplied 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 more be tied 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 Tithes, 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 blind 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 allege 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 tendered 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, tried Learning, generous Disposition, and of good Estate, should be put into these Commissions of Sewers, the Statute did make choice of four Honourable 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 Honour 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 countries 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 wholesome Laws and Ordinances, and sometimes are as it were forced to agree to those which are whose; even as the Roman Dictator Fabius having joined 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 pass, I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them: And I intent to purge the Commission of such of them as these Laws have disallowed, and to that purpose I have framed this ensuing 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 Countess 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 hindered 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 intent by the Common Law are these: First, whether the Sixty pounds' stock can be demised and let for life, with the Remainder over, as this case is. Secondly, whereas B. and C. be two joint-tenants in possession, whether one of the joint-tenants and a stranger can so disseise the other joint-tenant as to transfer thereby an interest and Estate to the stranger. Thirdly, because the Release dependeth upon the disseisin, the question is, in what manner it doth inure, and whether it shall expel B. out of that moiety, because it is made to the stranger; and than 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 satisfy this Law. Secondly, whether the Countess may be a competent Commissioner within this Statute. Thirdly, whether a joint interest in Lands or goods will make the joint-tenant a sufficient enabled Commissioner within this Statute. Fourthly, whether the Were, as this case is, be razed down or not. And hereupon I intent 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 find 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 pass in Remainder, as my case doth limit them. Secondly, whether they will enable B. and C. to be Commissioners of Sewers allowed by this Statute. I do not only find stock let with Farms, but also joined 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 usque, etc. 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 precedents; 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, etc. 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 find 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 stocked the Farms. And in Wrotsly and Adam's Case in Plo. Com. Exception was Wrotsley and Adam's 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 cattle, neither shall they go with the Land in point of Estate, but shall pass to the Lessee, and after to him in the remainder, as a dependency 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 manner to B. for his life, and after to be disposed by the executors to the Churchwardens of Dale) that it did pass 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 manning's 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 pass in this manner 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 only; and therefore if one let a stock of cattle 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 joint-tenants, 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 express Ouster, but when a stranger joineth therein, in what part that doth alter the case is the matter; for if the stranger should get a joint Estate in possession with the Joyntenant whom he joined withal, that were to make a double joint-tenancy in uno eodemque gradu: for the joint-tenant which committed the disseisin, which hath the possession, and the joint-tenant which was disseised and which hath the right, do hold joint-tenancy still; for by 36 Ed. 3. right may hold 36 Ed. 3. joint-tenancy 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 joint-tenancy may be built upon another, As if two joint-tenants be disseised by other two joint-tenants of the right semel, but not simul: But in our principal case, Whether one joint-tenant might hold the possession of a Moiety with his first companion in jointure, with his moiety in right, and can also uno tempore hold joint-tenancy in possession with a stranger, of the moiety upon which the disseisin was committed, I suppose he cannot, because than he should hold partnership with both of one thing: And therefore in my opinion the stranger getteth nothing in my case, but is only a Coadjutor, and no Disseisor, which gets the Tenancy. The third Point. But admit the stranger did get a moiety of a moiety by joining in the disseisin, than 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, rendering Rend, 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 strengthened by this release, is in by the Title under both of them, and now they are Tenants of a Reversion only, 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 than express 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 tortuous 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 Joint 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 died 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 Joint 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, than a descent happening 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, than 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 Reentry, 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 virtue 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 movable 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 moiety to the King, the other moiety to the party that will sue therefore, etc. 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 movable 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 kind must be endowed with these three qualities. First, he must be free of a City, etc. If he want any of these, than he is out of this Branch of this Statute. Secondly, he must be there Resciant, and Thirdly, he must have in clear movable 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 King's 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 than the quality of his Parents; for if Aliens have a child in England it is free of the Kingdom: yet by the Opinion of Hussey Chief Justice in 1 R. 3. fol. 4. and in calvin's case of the Post Nati, it is holden for Law, That if Ambassadors of this Realm have children born in France, or elsewhere 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 King's 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 manner 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, etc. 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 Marriage, must abjure the Realm; and this is a general Abjuration: And by a Statute made in 31 Ed. 1. 31 Ed. 1. Butcher's 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 than an Alien, because he taketh with him Indignatio principis: But a banished man forfeits neither Title of Honour, 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 Father's Banishment, or not, is the matter of my Case. A Freeman of a City or Borough may be made divers manner 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 Apprenticeship. Secondly, by Birth, by being the Son of a Freeman. Thirdly, by Purchase, and that is by the Common. Council of the City: And at Bristol by Marriage. In the Chronicles in the Reign 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, Marriage 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, Privileges and Franchises of Rome, no more than calvin's 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 child hereby is no Citizen by birth; and if one be born of Free Parents out of the place of Privileges, 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 Marriage 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 Freeman's 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, than 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, than it had been forfeit by his father's 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 father's 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 enthralled, 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, than 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 child is part of the father's family, for the Husband and Wife, Father and Children, Master and Servant are of a Family; and a Ward is part of his Guardians family: But in our case when D. was Banished, he then forwent 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 aught 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 martin's 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 martin's, because it was In but not Of London, Doctor Grants Case, Cooks 11 Report. Our Freeman must also have in clear movable 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 Movable, declares plainly that it only extends to the personal Estate: And I take it, that these words (Movable substance) doth not only 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. Money's 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 enable him to be a Commissioner within this Law. Neither do the goods of the Church enable the Parson, Vicar or Curate, nor the goods of a Corporation do not enable 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 only the use and occupation thereof. And although in this Statute it is not declared in what place these goods which should enable 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 Movable 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 movable 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, than he shall be allowed a Commissioner within this Statute: Touching which point of Lands I now intent 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 Messages, Cortages, To●●s, Crofts, Houses, Land, Meadow, Pasture, Feeding, Moors, Marshes, Heaths, Furs, Mills, Orchards, Gardens, Hopyards, Rents of Annuities, Prima vestura terrae, Pischaries, Tithes, 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 joined therewithal (videlicet) yearly value: And therefore Franchises and Liberties, as Waifs, Strays, 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 Baker's Case Cooks 3 Report; But as it is there said, If these things have heretofore been usually let and demised for certain yearly Rents, than they may be Hereditaments of clear yearly value within this Law. All Offices and Vocations, as Physicians, Chirurgeons 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 seized of a Rent or Annuity payable every second year, it doth not enable him to sit because it is not Annual, which is intended yearly, and every year, as the Prior 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 seized 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 seized 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 seized 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 enable 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 man's 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 joint-tenants of Land of that yearly value, for though they be seized per my and per tout, yet in truth, and in a legal construction, either of them be seized but of a moiety: So that if two joint-tenants, Tenants in common, or coparceners be seized 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 College and Fellows, which be seized 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 seized 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, than 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 seized 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 movable 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 Manners, 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 virtue 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 Manner, 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 virtue 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 than 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, etc. will suffice to qualify 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 satisfy 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 trial 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 challenge was disalowed, 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, etc. 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 Enrolled, yet this doth not qualify 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 enable 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 complete 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 find 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 virtue 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 & Ten; 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 applied to husband and wife. I remember out of the Abbey Book of Evesham this Note worthy of observation, Quod Alicia Peers 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 favourite 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 sat there to wrest righteous Judgement, I refer to the readers of that History; For Deborah 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 find 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 precedents that King Richard the first, and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regent's of this Realm in their absence in France: And the wise and renowned Lady Margaret, Countess of Richmond was put in Commission, and Humphrey 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 Coheirs: 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 Mistress, 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 honourable 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; young 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 enable 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 Justice's 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 rely 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 only 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 authorised 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 raze 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 comprised 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 Wears. The next Statute to this is, 25 Ed 3. cap. 4. which doth Enact, That all Mills, Wears, Stanks, Stakes & Kiddels were levied 25. E. 3. and set in the time of King Edward (that King's 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 Wears 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 Wears erected in Navigable Rivers where Ships and Boats were wont to sail, should be extirped, because they were a hindrance 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 Wears which were so to be put down must be only such as were erected in the time of Ed. the first and since, 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 enhancing of such Wears, 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 enhancing of such things which are counted annoyances. And Thirdly, it gives the like penalty against him which shall relevy the annoyance, as against the enhancer: 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 ensuing 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 Wears, Mills, Stanks, Stakes and Kiddels in old time made and levied before the time of Ed. the first, and them which they should find too much enhanced or straitened, to correct, pull down and amend; saving always a reasonable substance of Wears, Mills, Stanks, Stakes and Kiddels so in old time made and levied. Thirdly, and if any such annoyances of Wears, 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 enhance 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 find 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 Wears, 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 Wears, Mills, Stanks, Stakes or Kiddels time out of memory in Rivers or Streams, which of late years have been enhanced, enlarged, or otherwise exceeded the ancient size and accustomed compass, the excess 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 Wears, 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 young 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 King's people; The other the destroying of the Fry of Fish which were occasioned by the erecting of these Wears, Mills, etc. Yet these are businesses which are otherwise provided for, and be not pertinent to these Laws of Sewers: And therefore I shall pass 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 Wears, Fishgarths, Mills, Mildams, Locks, Hebbingweres, Stakes, Kiddels, Hecks or Floodgates be made, levied, enhanced, straitened or enlarged against the said Statute, the offenders 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 Months after such garnishment do not wholly amend, break down and avoid the said making, levying and enhancing, straightening or enlarging, 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 Offender, 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 moiety to the King, the other moiety to the party that will sue for the same. And also it was further enacted, That if any person or persons, other than such against whom such Award, Rule or Judgement was made, or any of them, do presume to occupy or continue any of the Wears, Fishgarths and Impediments aforesaid, or other encumbrances, he shall forfeit for every default for every Month 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 enlargement: 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 ensueth, 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 enhancing 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 Chief 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 Wears, Kiddels, etc. and other lets as were erected before the Reign of King Ed. the first, and which have been inhanuced and exalted since, and so was out of all those Laws, because there was no such enhancing. 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 accordingly made their Report to the Lords of the Council. There be many private Statutes made for the abating private Wears in some Streams which are not within my intent to recite, further than 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 kill Fry of Salmon, 27 H. 8. Rastal Havens 9, 10, 11. In 19 Jacobi Regis there was a great Cause depending in the Court of the Duchy at Westminster, between Benedict Hall Esquire, Plaintiff, and john 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 let by the said Queen, and also by Queen Elizabeth, under the Seal of the said Duchy by yearly Rents, and so there were ancient precedents shown in that Court, whereby it appeared, that the ancient Were there had been let 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 let by the King's Majesty that now is, under the Seal of the Duchy of Lancaster, in the Tenth year of his Reign, to one john 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 died; 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 pass but in great danger, which if the said Were were not, Boats of two or three Tuns might pass the River; and that the said Were had been the death & drowning of one of the King's Subjects, and is the cause of the scarcity, dearness and want of Salmon, 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 hindrance to the common passage of Boats and Ballangers up and down the River, endangering of the lives of the King's Subjects, and to the destruction of Fish, as the Salmon 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, Authorising 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 Duchy Court before Sir Humphrey May Knight, Chancellor of the Duchy, 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 King's 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 enhanced, yet in regard they did not present in quanto nor in qua parte, the said Were was enhanced 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, Mildams, 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 Wears, 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 enhanced or enlarged over their ancient and accustomed assize, than the enlargement and excess is only 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, than 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 Baronet's, Sir Richard Aurcots, Sir John Thorold, Sir John Read, Sir Charles Bowls, Sir Ralph Maddison, Sir William Hansord, Sir Francis South, Knights, Thomas Tyrwhit, John Bolles, and Nicholas Hammerton, Esquires, whereof the said Baronet and Baronet's 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 reform, 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 manner 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, etc. 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, than 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, etc. 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, Wears, 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 safeguard 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, Wears, etc. 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 expressly ordered to be maintained. And upon this part of this Law I do collect these ensuing matters: First, that if one do erect and build a Were, Mill, Mildam, or other thing on a River Navigable, to the hindrance of Navigation; or if there was an ancient Were which was enhanced of late years, the Commissioners of Sewers are to order him that did erect the one, and he which did enhance 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 reform, relevy the same again, or do continue the same contrary to order, the punishment of One hundred Marks is to be imposed upon the offenders, as by the Statute of 1 H. 4. and 12 H. 4. formerly appeareth. And if one which is a stranger of his mere 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, than the Commissioners of Sewers are to order those to remove that annoyance which in all likelihood 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 Nuisances, I shall put the Commissioners some precedents 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 than 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 tamburlaine 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 King's 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 hindered 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 adjoining; And quod defendentes sint in miserecordia dom' Regit, because the Nusans was not found to be done by force. In 19 Ed. 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 Nuisances, yet there is another course allowed of by the Law, and that is by abating of the Nusans, in pulling or cutting the same down; and the Law is express 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, than 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 Gloucester: 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, Wears, 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 encumbrances 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 intent to close up this days exercise with this short conclusion; that is, That E. was not sufficient Freeman, nor was resciant, nor had goods of value to make him a competent Commissioner; That notwithstanding B. and C. and the Countess of Warwick were competent Commissioners, and they joining 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, etc. Finis hujus quartae Lecturae. Quinta Lectura. Generou 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 harbour in the Inland streams, and I myself am got up to the highest Mountains, to the end I might take the view and survey of all my former days labours; and this being the last day of my reading, I must now make my account to you of my Stewardship: The Talon 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 Accounts, it may be it will come short of your exctations; if it do, I pray you help to increase it out of your abundant store; and consider with yourselves, 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 kind & 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 manner 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 trod out in the steps of learned Predecessors, I intent therefore to be no changeling, nor mean I to produce or bring up new usages, least old Custom should forget what herself had been: In this manner 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 kinds, 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 King's 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 undique 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 myself; 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 kinds. 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 shown then that Rivers were of two kinds, Royal and Common Rivers; That there were other inferior kinds 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, than it is a stream; if it be a running water, and penned within Walls or Banks, than it is a River, Gutter, Ditch or Sewer; These in their several kinds I did distinguish; And Springs I held to be the vital spirit of them all. I then described the Commissioners manner of proceed, which might be three manner 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, Precedents 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, Marshes, Rents, Ferries, Pischaries, Commons, Free passage, Parks, Warrens. And many Inheritances I found in reason freed from these Taxes and Lays, as Tithes 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 kinds, viz. Customary, and then they may bind the Mountains as well as the Valleys. Hereditary, and then the particular Tenant and the Reversion must both contribute. Temporary, which bond 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 merely 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 Offenders Estate, 1. By Distress: or 2. By sale thereof. Or otherwise in extending it upon a man's 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 Honour 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 shown that for some transgressions neither Imprisonment, Fine nor Amerciament was to be imposed. I than came to Distresses, and held a triple 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 shown 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 King's 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 proceed, 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 enable a Commissioner, and which were not. Then I proceeded to entreat of a Commissioners Ability in goods and movable substance, and which were movable 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 excess 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 public good, they might be preserved and maintained. And I vouched some precedents, 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 account, wherein I think I have done myself 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 favours I intent 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 only 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 safeguard, conservation, redress, correction and reformation, and more than these, they must be necessary and behooveful; 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 chief to be made Pro bono publico, and not Pro privato alicujus. New Laws are to be ordained for these purposes only, 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 country; 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 more 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, Tenors 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 behooveful 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 tried 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, lest it prove too burdensome; 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 men's 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 than the word Law hath; for it is a Law but of a secundary power, enacted by a Corporation, Company or Commission, proceeding merely 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 London's 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 than Laws; for a Law is either the Common Law, Customary Law, or an Act of Parliament; all which are of greater force than 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 engrossed into Parchment, and certified under the Seals of the Commissioners into the Chancery, and the King's 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 King's 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 King's 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 ensuing, 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 than 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 vigour they may notwithstanding be revived by the power of a new Commission, or remain for precedents for after ages to imitate. Repealing of Laws. IN this last place I intent 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 neque placent neque 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 Trial 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 Latin, 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 engrossed into parchment, and certified into the King's Court of Chancery, with the King's 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 signory 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, altar or make void any of these, because these are established 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, altar 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, altar 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 account 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.