INSTRUCTIONS FOR JURYMEN▪ ON THE Commission of Sewers; SHOWING  

1. What they are to Survey and View.  
2. What to Inquire and Present.  
3. How.   
DELIVERED In a Charge to 3. several-Juries, at a Session of Sewers, holden at Spalding, in the County of Lincoln.  
To which is added, Two other Charges; The One concerning lovel's Works.  
The Other touching the River of Glean, in the said County.  
LONDON, Printed by T. Leach, for Tho. Johnson, at the Golden-Key in St. Paul's Churchyard. 1664   

Licenced,  
AUGUST the 1st. 1664. Roger L'Estrange.   

Gentlemen, You of these several Juries,  
When I look upon you, & consider the persons, 1. To whom I am to speak: Some of you Men grown Grace in this employment, and that know as much what belongs to it, as I can tell you: Or when I look upon others, 2. Before whom I am to speak, Gentlemen much better able to do it than myself, I cannot but think some such thing may befall Me, as did that Philosopher of Ephesus, who most presumptuously undertook to instruct Hannibal in the Discipline of War: A Self-conceited man, bred up another way, and in studies of another Nature; yet out of 1. Arrogancy, and 2. Ignorance, would give Hannibal a Discipline in his own Art, wherein he was so famously eminent (I would spare it, without 1. Envy, and 2. Offence, To the 1. Living, and the 2. Dead) That for Valour and Wisdom, he was to be reckoned One, even amongst the Greatest Generals that ever appeared in the Head of an Army: And what I have to speak to you here, may prove as that he did there, not only Needless, but Absurd and ridiculous.  
However, yet (under Favour of those that hear it) Give me leave, though not in a way, To 1. Instruct you in your Duty, as if I thought you Ignorant: No, nor yet To 2. Direct you, as if I thought you Unskilful, or Unexperienced; But only To 3. Remind, or Remember you of it.  
You are here three several Juries, of 1. Survey, and 2. Inquiry: And for order and method I shall reduce all that I have to say to you, to Three general heads. First, I shall declare to you What you are to View, in order to your Survey. Secondly, What you are to Present in order to your Inquiry: And Thirdly, How you are to Present, so as to perfect both. These three, I conceive comprehend your whole Duty. The First tells you what you are to travel and ride about, when you are gone from hence. The Second tells you what you are to do, when you come hither again. The Third tells you in what manner you are to do it; of these with as much clearness and shortness as I may.  

1. Wha● to View  For the First, what you are to View. I do take it, they are all such things as are properly within the defence of the Laws of Sewers, and do concern, either 1. Navigation, or 2. draining, or 3. common Land-passage in such Maritime Countries as this is.  

Navigation.  First then, One great end of your View and Enquiry, is to preserve Navigation; that is, according to the common use of the Word in matters of Sewers, all manner of passage by water; and this doth not only 1. employ the Merchant, and many more under him, and make him to abound; but it also 2. enriches the Common Treasury by Customs, and 3. upholds the general Trade and Traffic of the whole Nation; and is in a special manner advantageous to such Countries as this, that are adjacent to the Sea: for hereby, as you may Export many of your home-growing Commodities, and sell them abroad at the dearest Rates, So such as are Imported, and brought in 1. from foreign Countries, or 2. from other Countries within your own, you buy them with the 1. first, and at the 2. cheapest; and other Upland-places cannot have them, but 1. from you, or 2. after you.  
Now the Commission of Sewers, in a matter of such great import as this of Navigation, is very exact and careful, 1. First, In respect of all kinds of Navigation, 1. Whether it be with Vessels 
Of Ships, Boats, Ballingers.  of the greatest bulk, as Ships. 2. Or with Vessels of the smallest kind, as Boats. 3. Or with Vessels of a middle nature, as Ballingers; which many take to signify certain kinds of Vessels, immediately employed about the lading or unloading of Ships; in some of the greatest Rivers of this Nation (as I am informed) there be some of the greater sort of Vessels, of this very name, and for this very use; and are freshwater Vessels, of the greatest bulk, framed with Oars, and without Sails: I shall neither trouble myself, nor you, about the Original of the Word: There be, would fetch it far enough, from an Hebrew Radix; but if I should follow 
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉  Minsius in this his Opinion, I should have a farther trouble to tell you who brought it hither; therefore I shall only, and plainly tell you, in the Commission, I take it to signify the same with your Naviculae Actuariae amongst the Latins, such as be the Ballingers, or Balasters, properly so called, we have already spoken of: As also your Barges, and your Keels, and all other kinds of your greater freshwater Vessels, carrying Anchors in them; by the one they are distinguished from Ships, by the other from Boats.  

In Rivers, Streams, and other Floods.  2. Secondly, In this Point of Navigation the Commission is very exact, in respect of all Waters that be in any manner Navigable; I mean in case they be so 1. of common right, (which being once spoken, I would have it understood in every part of my Discourse; for the Commission defends not any Navigation, nor any watercourse, but the common watercourse, and the common Navigation only) and then, whether it be in greater or in lesser Waters, in smother or in rougher Currents; that is, in 1. Rivers, 2. Streams, or 3. other Floods, doubtless it is to be preserved; and the Commission doth in specie, and in particular, nominate every one of them.  

Drayning.  The second sort of things you are to view, are such as concern draining, and these be such as directly preserve your Country, and do immediately concern the very Being, both 1. of the Country, and 2. of you in it. Now these are of two sorts, First, such as preserve the Country from being Drowned, by keeping out the Waters. Secondly, such as make the Country dry, by issuing out the Waters.  
Those Defences that preserve the Country from being Drowned, by keeping out the Waters, the principal of them; and such as are expressly named 
Walls, and Banks.  in the Commission, are 1. your Walls, and 2. your Banks▪ I shall not be overcurious in the distinguishing of them: such as distinguish them in regard of the Materials whereof they consist, and will have a Bank to be only of Earth, and a Wall only of Stone, will hardly derive our English Wall, from the Lain Vallum; for, that that was usually of Earth, is out of all question. For my part, I conceive the difference to be ●ather in the manner of the Defence: So that if they be main Defences, both for height, and strength, and security; if they do, Vallo munire, be of the like defence to the Country, that an Entrenchment is to an Army; I do take them to be Walls, though made of Earth; such as your Sea-walls are, both in Fact, and in Name. 2. And all smaller, and weaker Defences, I take to be Banks.  
Now your Walls, or your Banks, (it matters not much by which of these Names you usually call them, for they are both expressly in the Commission) are of three several sorts, or kinds. 
1. Rivers 2. Banks.  First, such as defend against the Rivers, and your other greater Sewers, and the fresh-waters therein Descending; and these have a twofold benefit. 1. The one, in that they make a stream, and inchanel the waters, which makes very much to Navigation. 2. The other, in that they secure the Country, and preserve the same from Inundation, which certainly makes as much to draining: and Gent. such may be the violence of some of these Rivers, and that I may speak with relation to our own particular concernments, that of Welland is known to be such, that if it be not kept within Banks, and the Banks thereof strongly defended, some parts of this Country will be in yearly danger of being drowned, either Northernly, as far as Boston, or Southernly, as far as Sutton, or Easternly, upon the Towns that suffered under it this last Winter; even as the Winds shall chance to drive the Waters, and the Fens. And therefore I would have you take so far notice of your danger, as now, while you may, to prevent it; and, by securing of these River-Banks, to secure your Country.  

Fen-Banks.  2. Secondly, other Banks there be that are main Defences against the Fens, and that vast Body of waters, usually lying upon that Level: These you commonly call your outring Banks, and they have always been esteemed as the main defence and security of your several Townships: Some of you, of some of these Juries, I am sure have reason to look upon them as such; and with what Eyes and Hearts you lately beheld and felt your own danger and damage, and it might have been your utter Destruction, even from hence, many of you cannot but remember now; And this I am sure of, Wets and Winds may come again.  
3. Thirdly, other Banks there be, that are main defences against the Sea, that raging Enemy: But because by the 
Sea-Banks.  imbanking of the Marshes, there is at present, a handsome anticipation as to you in this Country, and other persons, and their Estates, lie between you and the charge, and before you and the danger, so that the Sea cannot much hurt you, before it destroy them: Therefore I shall not speak much to you about these Banks, only I would have you see to them so far, that they be not 1. weakened, or 2. demolished, nor for any private Man's pleasure, profit or command whatsoever, 3. cut through, or 4. in any other manner made indefensable. These Banks, you know, are the common known defence of the whole Country; and for the upholdin of the other Marsh-Banks, there is ● farther Obligation, than private Interest, and the mere will of the Owne● And truly considering what great Batteries the Sea, of late years, hath mad upon them, & what strong assaults upo● the Country, I would not have the common defence of the whole Country, altogether neglected, and regardlessly lef upon other men's scores, only because they are a little more immediately concerned in the danger, and are sure to be drowned before us: And so I have done with such defences as preserve the Country from being drowned, by keeping out the waters.  

Watercourses.  Secondly, Other things there be within the Defence of the Commission of Sewars, that make the Country dry, by issuing out the waters; and these are your Water-gangs, or your common watercourses of all sorts, from the very Gutter, to the River; To give you particular notice of such as are particularly named in the Commission: There is,  

Gutters.  1. First your Gutter, which is the mallest Channel of water; And I have ●en in some Upland Towns, where Gutters, and a common Ditch, or in ohers, a Brook, have been the only ewars, and where they alone have e'en sufficient to avoid the whole mishief of that water: But where there have been no other Sewars but these, hay have seldom come under the diretion of a Commission, the Court Leets have been sufficient, and have served he turn to order them.  

Ditches.  2. Secondly, Ditches, The Latins all them Fosse, a Fodiendo, as being made with the Spade; For, Fossa est receptaculum Aquae manu facta, saith Ul●ian, and for any Grammarians pleasure ● dare not alter it; but he hath said so before me, and I must crave leave to use his words, and say so after him.  
And though these Ditches consist of larger channels than Gutters, yet I take them to have the smallest current of waters: Hence the Learned Reader, upon the Statute of Sewars, calls them a current of water, in infimo gradu, in the lowest degree imaginable.  
Your Ditches in this Country, are, or ought I know, of private use an charge, and are not under the Direction of the Commission, further than, 1. A they may relate to some general or common Good, or 2. may be the cause oh some general or common Mischief; but in the Countries above us there are some ancient remains of these common Ditches, though for the present they are most of them dry and deserted; and considering the little use that now i made of them, I have heard some wonder, to what purpose they were at first devised: For my own part, I doubt not, but that in ancienter times they have been of prime use, even in this very respect of draining; but I take it since such Countries as this, that lie between the Sea and them, have been gained, and made useful, they have been left as useless; and so much concerning them. Other watercourses there be, that have both considerable 1. Channels, and 2. Currents, and are very beneficious and useful to you in matter of Drayning, and they follow in the Commission, where  

Trenches  3. Thirdly, You have Trenches; which for distinction from the rest, I ache to be currents of water, trenched eep, and sunk within soil; such as have either 1. no banks raised above oil, or 2. very small ones, and those ather raised by the cleansing and purgng of them, to give a swifter and readier passage to the waters, than to de●end against them: These are those your Latins properly call Incilia, passages for water cut deep into the ●oyl; and they are the petty conveyances of any downfall of waters into your main Sewars.  

Sewars.  4. Fourthly, Sewars; and they are to be accounted amongst your grand Issuers of water; from whence I conceive they carry their name (Sewars, quasi Issuers.) I shall take his opinion, who delivers them to be Currents of water, kept in on both sides with banks; and in some sense, they may be called, a certain kind of a little or small River. But as for the derivation of the word Sewar, from two of our English words, Sea and Were, or as others will have it, Sea and Ward, give me leave, now I have mentioned it, to leave it to your judgements. However this word, Sewar, is very famous amongst us, both for giving the Title to the Commission of Sewars itself, and for being the ordinary name of most of your common Watercourses, for draining in the Country; and therefore I presume, there are none of you, of these Juries, but both know 1. what your Sewars signify, and also in particular 2. what they are; and of a thing so generally known, and of such general use, I shall use no more words to you, but that you have a special regard and care of them.  
And thus much of your Watercourses, which relate only to draining, and have no living Fountains from whence they are fed, but are only Drains, and serve to discharge and carry off the surplusage of other waters; such other waters I mean, as either 1. have their immediate downfall from the Heavens amongst us, 2. or descend from Upland Countries to us, 3. or are the Over-stowings of Rivers and greater Streams upon us. Four kinds there are of them, as you have heard; two of them of private and particular charge and benefit only, as your 1. Gutters, and 2. your Ditches: other two of common and general charge and use, as 3. your Trenches, and 4. your Sewers. Now will you see, how they stand in order, and relate one to another? Take it briefly thus. Your 1. Gulters, they bring the waters from off your Grounds to your Ditches. 2. Your Ditches, they bring the waters down to your Trenches. 3. Your Trenches, they carry them out to your Sewers. And 4. your Sewers, they carry them away to the Sea. And of them thus much.  
The remaining Watercourses, mentioned in the Commission, are such as relate both to draining, and also to Navigation, and that in an Eminent Manner: And they are your Streams, and your Rivers.  

Streams.  5. Fifthly, Streams, I do take for such Currents of water, as have both a 1 Certain, and a 2 Constant Source from whence they Flow. You may make two sorts of them. First, such as do convey the water from the Fountain to the River: some of these, which do descend from greater Springs, are Navigable from the very head. As to give you an example of one that lies within the charge of one of these Juries; and withal, to charge them, take special notice of it. Burne-●i is such a Stream, and though this, as all other Streams of this nature, be Navigable but with Boats, that is with Vessels of the smallest size only, yet as I formerly told you, such Navigation is to be preserved. However these Streams are a great advancement to all Navigation; whereupon, the Author of the Readins upon the Statute of Sewars, no less truly than eloquently, calls the Springs from whence they Flow, the very Vital Spirits of all the Rivers in the Land. Secondly, other Streams there be, which have been devised to make a Navigable passage from one great River to another, call them Leams or Streams, it matters not much, as long as you signify the same thing with me; and these very prudently have been devised, as helps to enlarge Navigation, and so far only to be suffered, as they enlarge it, and better it: For where, 1. they either make Navigation worse, by diverting the water, or 2. endanger the Country, by overflowing the Level, they are, as I shall hereafter tell you, within the power and view of the Commission of Sewars indeed, but as impediments and annoyances, to be reform, or removed, and n that case, are rather to be esteemed, Waters out of Course, than Watercourses. And thus much concerning Streams, which I take to be sufficiently distinguished from all the former Waer-Courses, in that they have a certain, and a constant Fountain or Source, from whence they Flow, which the other want.  

Rivers.  6. The Sixth Watercourse named in he Commission, is a River, and this properly is made up of Streams, and is no other thing than many Streams incorporate into one, and so becomes Naviable to the Sea. Besides, that Rivers re greater waters than Streams, a River and a Stream, differ also in Exitu, that ●, in their Outfall for the Outfall of a tream is commonly a River, but the ommon Outfall of a River is the Sea. Many are the benefits and advantages of a River, even such as be of private Concernment, wherein certainly, many particular Persons may have good Right and Interest; and whereof, such as in truth have so, further than as at some times they may cross the main end of the Commission of Sewers, ought not to be debarred the Enjoyment, or limited in the Use. But I shall say no more of these, a being not comprised within the Commission; only I shall tell you, that suc there are, and that the Commission o Sewers was not made, nor intended, 't Destroy them, but only to Regulate them so as that particular Convenienci● might not become general Mischief But to come home to the Commission from whence? and whither? Is it th' your Ships sail? but 1. From, and 2. T your Ports, & your Havens? and they a nothing else but secure Harbours up● your Rivers. 1. Your Havens, Harbours f security only. 2. Your Ports▪ (as the woe is usually here taken amongst us in o English language) besides that, places 1. Privilege, and 2. Defence too; wh● is it, that your Boats, and Barges, ● Balingers', and other Vessels, have th' common passage? Is it not upon your Rivers? These two for Navigation; but give me leave to ask you a third Question, What is it that doth conduce so much to matter of Drayning, as your Rivers do? Other drains you have, I confess; But your Rivers, 1. They are the grand conveyors of the water from the Fountain to the Sea, which they ought to bear down, 1. in their own Channels, 2. and other adjacent receptacles, till they discharge it there: And so they carry away the mischief, 1. of Springs wholly, and 2. of Land-waters also, as to the greatest part of it.  
Again, 2. The Rivers they keep open a Channel or vent into the Sea, and so give an Outfall, both, 1. to their own waters, and 2. to all your other Drains too; without which, your Drains all of them would be useless; For you had as good have no Drain, as they to have no Outfall: So that I may well say, without Rivers, there would be neither 1. Navigation, nor 2. Draining to any purpose. Therefore, Gentlemen, It concerns you, to take special notice of your Rivers. There are some, four as I take it, in the whole County, that be Navigable, and two of them are now under your view, the one of Welland▪ the other of Glean: The one of these▪ namely that of Welland, 'tis said, must drown all Holland, Est adhuc in Fatis, and I pray God we in this careless Age see it not in Facto: An old saying it is, and loath I would be, that we in our days should convey the sad remembrance of the Truth of it to following Generations.  

Floods.  7. Besides Rivers, there is in the Commission mention made of Floods; which doubtless, are 1. either Waters, 2. or Watercourses; and for my part, I take them to be nothing else but your greater Rivers▪ Both Flood and River, as to the words, have their derivation a Fluendo, the one in Greek, the other in Latin; and till I be better instructed, I shall hold with the Civilians, That, Flumen à Rivo discernendum est, vel Magnitudine, vel circum-colentium existimatione, That is, Floods are nothing else but your greatest Rivers, or those Rivers are Floods which have been accustomedly so called.  
And falling here upon that thing we call common estimation, give me leave to tell you, That it may be, some words that I have hitherto explained, and some others that I shall have occasion to speak hereafter, may not agree altogether with that usual and accustomed ●ense you have of them; and no wonder, for I have endeavoured to difference words, as they are used in the Commission, and not as they are used in ●our common Language. Certain it is, ●. That every word is not throughly ●eighed before it be spoken, 2. Neiher are any words used in full and exact Propriety, So that the same word must ●f necessity have different significations; ometimes in a larger, sometimes in a ●ricter sense; even accordingly, as it is said. Now in this ambiguity of words, think I have good reason to follow the Commission, and to conceive a rational ●nse and difference of them: 1. as they ●e, or 2. in likelihood are there used, ●ther than to follow common Language, wherein I am sure there is no ord whatsoever, but what is commonabused. And this is all I shall reply to any who shall have a mind to play the Critic upon what I have spoken.  
And thus I have done with your Watercourses, and have brought down the waters, 1. from the Springs, by your Sreams and your Rivers to the Sea, and 2. from off your Lands, by your Drains to their Out-fall, where I find an Engine 1. of excellent, and 2. approved use in Draining, and finding it named in the Commission, I cannot handsomely overpass it, without taking some notice of it, and that is a Goat, or as you more commonly call it, a Sluice.  

Goats.  Hitherto we have spoken of Watercourses, and that is, of water, in decursu, of water, in its descent, or current only: I have but one word more to speak of the water now, and that is, of the water in exitu, in its Out-fall. Your Drains they indeed bring the waters down, but your Goats they let them out; and are Instruments of Draining, so Artificially devised, that during the Ebbing of the Sea, they are always open to let out the Land-waters, and during the Flowing thereof they are always shut, to keep out the Salt and the Sea-waters.  

Floodgates.  Of like use, with your Goats, and uces, are your Floodgates; and as I ●nceive, so far as they are beneficial to ●u in matter of Draining, are to be ●teemed parts of them, or at most, and here they are sole, but imperfect moels and parcels of them. For if they e impediments to Navigation, or ●raining, they are then either to be eeemed as Locks, or in a more peculiar ●anner, belong to the Water-Miller, f which more hereafter. And so I have done with all those things you are o view, which concerns, 1. either Naigation, 2. or Draining.  

Land-passage.  A third sort of things you are to view oo, which are within the defence of he Commission of Sewers, and they oncern common Land-passage, in such Maritime Countries as this is: These are such as maintain a Way amongst us; and that, 1. either upon the Land, as your Calsey, or 2. over the Waters, as your Bridges; without both which this Country would be altogether unpassable, and would be a place both Invius, & Avius, without any passage, 1. in it, or 2. to it; cut off from the Upland Countries above us, and cut in pieces amongst ourselves. And as your works of Sewars, 1. which relate to Draining, make the Country habitable, 2. and Navigation makes you maintain a Traffic, o● Trade, with other Countries, 3. so your Bridges, and your Calseys, these make an intercourse, and a way for Trade amongst yourselves within your own Country here at home.  
But before I proceed further, give me leave to give you some account of the Method I now proceed in; It may be thought, and for mine own part, I myself have had thoughts that way; that although it be a thing altogether undeniable, that the words Pontes & Calceta, that is, Bridges and Calseys, be expressly contained in all the Commissions of Sewars that ever were yet in use, either at Common-Law, or by Statute-Law; yet that the Commissioners of Sewars had no further to meddle about them, than as things relating to Navigation, or Draining: Well let this be granted, yet I take it to be a thing undeniable too, that they do conduce to these ends; not only, 1. by defending against the Waters, but also 2. by preserving a passage over the Waters; and so preveuting Fords, and such like obstructive and inconvenient Passages within them: and this benefit of common Land-Passage being the main end hese Works were principally made and contrived for, I shall crave leave to propound them to you accordingly.— And yet further, in as ancient Escripts of Sewars as ever came to my view, and are at this hour preserved ●mongst ●he Records of this Court, I do find, hat Calseys and Bridges have in the execution of the Commission been taken notice of as common Land-Passages: These ancient Inquisitions I have seen, he one without Date, the other taken Nono Edwardi Secundi, and the third Quarto Henrici Quinti. 1. Wherein oncerning Calseys I do find, that Garwick Calsey, in the Parts of Keste●en, was presented u●on Great Hale, Town there, and the Abbot of Bardy to be repaired and sustained, pro Hominibus Peditibus, & Equitibus, hat is, both for Foot-Passage, and for Horse-Passage. And I also find, Brigge-Dike Calsey Presented, as Regia strata pro quibuscunque Legeis Domini Regis de super transitur is de Kesteven usque ad partes de Hollande: And the Decays thereo to be, in Magnum periculum plurimorum de Populo Domini Regis super dictum calcetum transeuntium: And this I take to be full enough, and sufficiently to prove, that as Calseys of themselves are common Land-Passages, so that heretofore, the Commissioners of Sewers have taken Cognizance of them as such. 2. And as for Bridges, I find them Presented in the said Inquisitions▪ not only in respect of the 1. Passage of the Water, 2. or of Boats under them; but also in respect 3. of Land-Passage over them. Thus Burton Bridge, cum Calcetis, is Presented to be, Alta via, & Regia strata; and in such manner to be repaired, it a quod Homines Pedites & Equites securè omni tempore possint transire, so as to be a safe Passage for Horse and Foot. And other Bridges are therein Presented, to be repaired, not only to such a breadth and depth, as 1. shall not minuere Latitudinem Sewerarum, pro transitu aquae celerius habenda; but also shall be 2. pro sufficienti transitis Carectarum & Quadrigarum, a sufficient Passage for Horse, Wagon, and Cart.— And all this was done by virtue of the Commission of Sewers as it stood at the Common Law; and no man can say, but that the Extent of the Commission is much larger, and the Power of the Commissioners much greater now than then it was, as having received several Additions and Enlargements: but no Restraint in any thing, saving only the Commission is now to be executed by six Commissioners, when as then two would have served; nay, which I more wonder at, in the ancient Inquisition, taken Nono Edwardi secundi, I find, the want of a Ferry-Boat at Cathmouth, or rather Wathmouth, Presented upon the Prior of Haverholme; and that, Debet invenire ad ducendum Homines Pedites ultra aquam, tam nocti, quam diei.— So then, certain it is, that there are Precedents of Sewers, to warrant such Proceedings; the only Question is, How far the Commission of Sewers will warrant such Precedents; the Resolution whereof I shall willingly leave to others: For my own part, I know not how to slight, much less out of any conceit of mine own, to censure and condemn Precedents of such great Antiquity; And having spoken this to clear the Method I am to proceed in, I now proceed on.  

Calseys.  1. First then, concerning your Calseys, they are common Passage ways upon the Land, made of Stone, Sand, or Gravel: and they have their Name A Calce; the usual Stone it should seem, whereof most Calseys have formerly been made.— These Calseys we find expressly within the Defence of the Commission of Sewers, as now it is, and was Enacted in Henry the 8 this time. But look above that, to the First Statute Commission of Sewers in Henry the 6 this time, and there you find them likewise. Look higher above that, to to the Commission of Sewers as it stood at the Common Law▪ and there you shall find them expressly named too. Enough I think to prove that the Commissioners of Sewers have something to do with some kind of Calseys; and that, as they are things different both am Walls and Bridges. And was there ● other Provision for the maintaining ● Calseys amongst us, and in such Mari●e, and Fenny, and Moorish Counts as this is, devoid of Stone, and ch like Materials, more than the ornary Provision for the maintaining of e Highways, (I mean than the ornary Statutes?) they, all of them, you experimentally know it) would ever maintain any one Calsey amongst ●— But I will not now undertake, to ll you in particular, what Calseys are ●thin the warrantable Defence of the ommission of Sewers; but having region to what I have formerly spoken, all only tell you, that all such Cal●s as are either 1. a Defence, or eer, or Boundary against the Waters any manner whatsoever; 2. Or are eject to Decay by the continual Beat d Rage of the Waters; 3. And have retofore been under the View of the immission, and here Presented, are 't to be excluded your View and re.  

Bridges.  2. Secondly, Bridges. And they ● your common Passage-wayes over your Rivers, and your other drains and Watercourses. And doubtless, 〈◊〉 Bridges that have constant Currents 〈◊〉 Water under them, are within t● reach of this Commission, and may 〈◊〉 virtue thereof be upheld and repaire● 1. Not only those Bridges that be 〈◊〉 public use, and for common passage 2. but even private and particular Me● Bridges too, if they be of public Benefit: In like manner, as private Me● Bridges may be pulled down, if th● be fowd to be of public Damage.  
And thus I have done with the Fi● Part of my Discourse, and have, according to my weak Abilities, told yo● What those Things are you ought 〈◊〉 View.— And to bring them all into 〈◊〉 short Recapitulation, they concern 〈◊〉 either Land-Passage, 2. or VVat● Passage, 3. or the Passage of the VV●ter itself. So 1. as it may be kept wit in the bounds allotted to it, 2. and t● Country defended against it.  
But there is one thing more I 〈◊〉 not so much to speak to you of it, as speak against you for it. You are here so many of every Jury, and it may be for show ride together a day or two upon your View, and so post it over; but your main Information, whereupon you ground your Presentments, you take it altogether upon trust, from one or two such as be impanelled amongst you of every Town; this is to praecipitate your business: and all Praecipitations are commonly accompanied with Oversights, and they cause Mistakes and Errors. Shall I tell you the Mischief of this? I have observed it; 1. Every Town would have their Assessment as small as might be, 2. and every Officer would have his years work as easy as might be; and so, when these are the Men that give the only Information to the Court, and are in a manner wholly entrusted with the View, and with the Presentment, never any thing to Purpose hath been, nor likely ●s to be Presented: But because something needs must, yet that, but 1. for Formality, and 2. Works of mere Necessity, and 3. as little as may be; so that let the Commissioners 1. Offer, or 2. Design, what they 1. may, or 2. can; yet Jurors will 1. do, and 2. find no more, than 1. what, and 2. as they list. And no wonder, when Views and Presentments have been so slenderly made, if that good have not come to the Country, by the Commission, that some may have expected.— For a full Remedy, I could wish that others, (the Commissioners I mean) who chiefly indeed ought to do it, would join with you in the View too▪ and so make 1. the View chiefly their Acts, as properly it ought to be: and the Enquiry yours. But because that perhaps might be a thing of two great a Charge and Inconveniency,— for the present, give me leave to tell you, it is your Duty, all of each Jury, to make your View together; and upon your View, to take full Information together, of what you shall think fit to Present, and not to leave that which is the main End you View for, to one or two of a Town only, and they likely enough to be partial in the business. And thus much 1. for what you are to View, and 2. for you that are to View it, that is, all of you together, that be of each several Jury.  

2. What to Present.  And so I come to the Second Part of my Discourse, to tell you, What you are to Present. And I do take it, they are all Transgressions against the Laws of Sewers, of what kind soever they be. Now these, as all other Transgressions, are either 1. Delicta, or 2. Commissa; I can English, nor distinguish them no better, than in your usual terms, 1. Defaults, or 2. Offences: 1. Defaults, when that is not done that aught; 2. Offences, when that is done that ought not.  
Defaults, they are Amerceable only; and although a direct Act of the Will may be upon a bare Omission, and a Man may make his Default wilful; yet because Defaults may also be of bare Neglect, Sine Prauâ Dispositione, of Indisposition only, without an evil Disposition, therefore they are left in Misericordia, to be set in the Mercy of you that are Jurors.  
Offences, are most of them Fineable, as being always willingly done; nay, many times, Vi, & Armis, with Force, and in full Contempt of the Authority that should Regulate them; and therefore, as being Crimes, and of a higher Nature, are subject to a higher Penalty, and to the Censure, and Discretion of the Court.  
And truly Gentlemen, all these Defaults and Offences you are to View too, otherwise, how can you truly Inform the Court what they are?— But 1. such things as be within the Defence of the Commission of Sewers, you are to View, so as to have them Preserved and Maintained: 2. these Defaults and Offences that be within the Correction of the Commission of Sewers, you are to View, so as to have them Remedied o● Removed; so that the former are properly the subject of your View, these of your Presentment.  

Defaults  But to go forward. I have heretofore told you, What things you are to View; now, without repeating any thing that I have formerly spoken, I am briefly to tell you, What Defaults in them you are to Present.  

In Goats, or Floodgates; in Calseys, & Bridges.  1. First, Your 1. Goats, or Sluices or Floodgates; and 2. your Calseys and 3. your Bridges; they are to be 1 Upheld, and 2. Repaired: so that in case 1. they be 1. Lacerate, or 2. Broken, and want 1. Repairing, 2. or be Dirupt, that is, 1. Decayed, or 2. Ruined, and require 2. making of new, you are to make Presentment of them accordingly.  

In Watercourses.  2. Secondly, Your Watercourses, all the sorts of them, whether they be for 1. Navigation, 2. or draining, 3. or both, are, to pursue the words of the Commission, to be 1. Cleansed, and 2. Purged; and their Channels maintained in their ancient 1. Bredths, and 2. Depths: so that in case they, or any part of them, 1. be Foul, and want 1. Roading, 2. Hooking, or 3. other Cleansing; 2. or be Landed up and want 1. Ditching, or 2. Opening, you are to make your Presentment accordingly.  

In Walls, and Banks.  3. Thirdly, and Lastly, Your Walls, and your Banks, those main Works of Sewers, that defend either 1. the whole Country, or 2. your several Townships, they are to be of 1. Height, 2. Breadth, and 3. Strength sufficient to do it; so that in case you find them 1. Broken, with Gools in them, 2. or otherwise, weak and deficient, for want of 1. Flagging, 2. Piling, or 3. Skirting; 3. or any ways insufficient, for want of 1. Heightening, or 2. Strengthening, you are to make particular Presentment, according as the Default shall be.— And truly Gentlemen, In such Works as these, that are the immediate Defence of your Country, and Townships, you are to be careful in your View and Enquiry; and to see, First, Whether they be of their accustomed Height and Strength; and if they be not, such Defaults to Present upon the Persons that ought to maintain them so. Secondly, Whether they be of sufficient Height and Strength, for suppose they be of their usual and accustomed Heights, and upon some great Alterations, either in respect of the Sea itself, or of other great Rivers or Streams, (whether they be 1. out of the Power, or 2. beyond the Authority of the Commissioners of Sewers, to help or redress) this will not defend the Country. I confess in this case there are no Persons in default, that you can Present, unless some, that in some few particular places may have covenanted for the draining of you: And such as these, if there be any such, are to do their Covenant: for in respect of them, not the accustomed greatness of their works, but the performance of the work they have undertaken, is to be looked at. But suppose, as to most of your defensive Banks, there be none such; in this case certainly, though there be no Default, yet a Defect there is, and you ought to certify the Commissioners of it, and how much the said Banks ought of New to be exalted, to make sufficient Defence: And in such a dangerous Necessity, the Commissioners (as I conceive) ought not to sit still, & see the Country Drowned: you would all say, they were in Default, if they should do so; but they may, and aught to impose a new Charge for the doing of it upon the Level; the Persons there I mean, that be concerned in the hurt or loss: 'Tis clear, the Commissioners may Impose such a Charge by way of Reparations, for the making up of a Bank wherein was no Default, post Damnum Acceptum, in case of a sudden Breach; as upon Extraordinary Floods and Winds, such Breaches often do happen; and if they might not Impose the like by way of Prevention, ad Damnum Evitandum, the Commission would be deficient in its main End, and would not sufficiently provide for the Preservation of the Country against the Waters; which, though it be not the only, yet it is the chief thing the Commission was made for; and by express words thereof, Power is given to make Ordinances and Provisions, as well for safeguard and conservation, as for redress.— And so much in particular concerning the Defaults you are to Present.  

Offnces in things of  Besides those Defaults, Secondly, Offences there be too, that you are to Inquire of, and Present, and they particularly mentioned in the Commission. 1. Some wbereof are in things of general use, and at least are to be Reform; 2. Others are in things of 1. general, or 2. particular abuse, and may be Destroyed.  

1. General Use, as,  1. First, To begin with those Offences that be in things of general use, they are either 1. in Bridges, or 2. in dreams, or 3. in Goats. The things ●emselves are of general use, and we ●ve spoken of them before, as they be within the Defence of the Commission 〈◊〉 Sewers; and certainly so they are all 〈◊〉 them, for the Country cannot want ●em: but we find them named over a●in in the Commission, or in the Sta●te that gives Authority to the Commission, and therein ranked and sorted longest such things as be ad Nocumen●m, and may be mischievous, and in ●at sense speak we of them now, but ery briefly.  

Bridges.  1. First, Bridges. And I do take it, ●ey may be Annoyances in respect of ●e undue contrivance of them; for in ●se you shall find any Bridges 1. so ●rait, that they hinder and check the current of the Waters; 2. or so Narrow, 3. or so Low, that they 1. hiner Navigation, or 2. make it danger's, you are to make Presentment of ●em, that they may be reform and arrected: No reason you should make ●e Passage more, or more easy by and, to make a Water-passage less, or ●ss safe.  

Streams.  2. Secondly, Streams. These we fi● likewise mentioned over again among those things that are to be reform; an● surely so they ought, in case you find any made of new, that 1. either dive● the Waters, to the destruction of Navigation; 2. or surcharge the Rivers, t● the endangering of the Country.  

Goats.  3. Thirdly, Goats. And these a● the last of those things we find named over again in the Commission, that m● be ad Nocumentum. Mischief enoug may be done by them, 1. in dry yea the Rivers destroyed, 2. in wet yea the Towns.— The Goats within t● Defence of the Commission, 1. a● Goats of general use for Drayning, an let the Water out whither it shoul● 2. There are Goats, most of them f● private men's benefit only, and take t● Water out, and carry the Water, fro● whence, and whither it should not And truly Gentlemen, I do not know any one thing of general or particule use in this Country, more of late abuse● than these Goats or Tunnells have bee● in open Defiance as it were of the Commission of Sewers itself, by a sort 〈◊〉 eople, that more esteem the steeping f a Glean of Hemp, than the 1. neces●ry supply, or 2. the general mischief ●f a whole Town, or Country. There 〈◊〉 not a Goat of them, 1. that were ●aken up, to be laid down again, without express order from the Court, 2. Nor of them that were untaken up, to ●un without Licence and Gage allotted ●y two Commissioners; and therefore, ●n your Enquiry take special notice of ●ll such as have been Offenders in this ●ind.  

2. General Abuse, as,  2. Secondly, Other Offences there ●e in things of general abuse; such I ●ean, as always tend to some general mischief, and cannot be in an ordinary way allowable; and these you are to Present, that without any more ado, they may be restrained, or demolished; and they are 1. Locks, 2. Gores, and 3. Ponds.  

Locks.  1. First, Locks. These I conceive to be upon the Channels of your Rivers, or other Watercourses, and are Dams, thrown in of Earth, or otherwise devised of art; and these are full stops to Navigation, and to draining, both to the Passage of the Water, and to all Passage by Water too, the one is locked up the other is locked out.  

Gores.  2. Secondly, Gores. These, according to the vulgar use of the word I conceive to be upon the Banks o your Rivers, or other Watercourses and are nothing else but great Breaches or great Cuts, wilfully made there Thus a whole River in a little time 〈◊〉 dis-chanelled, and turned upon th● Country; and by such attempts as these are, you may soon have the Rivers dry and the Country drowned: And thus according to the vulgar acception of th● word, a Gore and a Gool seem to be the same thing: But for my own part I am rather of Opinion, that a Gor● and a Gorce are the same thing, an● that both of them are corruptions of th● Latin word, Gurges: Now this wor● Gurges, is used in the Commission o● Sewers, as it was at the Common Law and a Man by the Law may have a righ● thereto, as appears by the Writ, D● Gurgite Habendo; and these Gurgite were expressly under the Defence of tha ancient Commission: As also, I conceive, they were within the Defence 〈◊〉 the Commission of Sewers in Henry●●e ●●e 6 this. time, and seem therein to be englished Wears. Certain it is, Places ●●ey were in drains to take Fish in, ●●d in drains might be tolerated; ●●ough in the ancient Statutes, for the reservation of the Rivers, such of ●em in Rivers as were disturbances to Navigation, were ordered to be pul●ed down. But I may have occasion at ●nother time to speak more fully to this purpose, and for the present shall take ●●em in the vulgar sense, because I ●ould not disorder the Method I proeed in.  

Ponds.  3. Thirdly, Ponds. These I conceive to be Waters penned or bounded up 〈◊〉 some Receptacle distant from the Ri●er, 1. where they are kept in, when ●hey might as well be drained out, and ●o mischief the Country; For, if I mitake not, Ponds, Lakes, Pools, and Receptacles of Water, as to matter of Sewers, signify all the same thing, and 〈◊〉 rational, or a gradual difference is all ●hat can be imagined amongst them. 2. Or else they are Waters drawn from the Rivers, and mischief the Rivers: so● way or other, they are an Impedimen either 1. to Navigation, or else 2. 〈◊〉 draining. Neither would I once ha● spoken of them, had they not been f● such expressly mentioned in the Commission.— And because some may agr● in Opinion with the Reader upon t● Statute of Sewers, and think these Pon● to be of small & inconsiderable Mischie I shall only acquaint you with an Inqusition of Sewers, taken at Stamfor 6 to. Edwardi 6ti. wherein dive● Ponds, or Pools, nigh the River 〈◊〉 Welland, and over against Peakald, an Cowbitt, were as then Presented, i that the Owners and Farmers thereof did by Trenches and Gutters, take suc abundance of Waters into the sai Ponds, as 1. both destroyed the Rive of Welland, and 2. drowned Deepin● Fen. And so I have done with a such Offences as be in things 1. 〈◊〉 general use, or 2. general abuse amongst us.  

3. Particular Abuse, from the▪  3. A third sort of Offences you ar● to Present, that lie in things that are o particular abuse, by some sort of Men at are of some particular Dealing or ●ployment only.— Usual it is in the ●orld, every Man would manage his ●n right to his greatest advantage, d so he may but get, he cares not 1. ●o, nor 2. how many loses by it; but is aught not so to be.— 1. No, not ways in things wherein a Man may ve an Exclusive Property against all ●hers; for even in some of them, Sic ●ortet uti Suo, ut Alienum non Laedat, Man ought so to make use of what is s own, as not to damnify his Neighbour. 2. But in such things wherein a ●an hath only a right at large with owers, (though their rights be 1. in seeral respects, and may lie 2. in seve●l prendures) there certainly 'tis not 〈◊〉 the power of every one, or of any ●e, to exclude the rest; who, though 〈◊〉 another kind perhaps, yet have as ood a right as the best. 3. Much less ●ay any particular Man do it, ad Pub●cum Nocumentum, to the general ●ammage of the whole Country, or of he Commonwealth.— And no less is he Mischief, if either draining, or Navigation be hindered, for than Reipublicae Interest, ne quis re suâ, mal●utatur, the whole Commonwealth i concerned in the wrong. And not only 1. a general Good is to be preferred be for a particular, but also 2. a genera Mischief always to be heeded before 〈◊〉 particular Good.— Now two sorts o Men are dealing in the Waters, 1▪ your Miller, and 2. your Fisher; an● both of them more covetous of a particular benefit they get, than sensible o any general harm they do there.  

1. Miller, in his Mill, Mill-dam, and Floodgates.  1. First, The Miller, (the Water-Miller I mean) and he hath his 1. Mill, his 2. Mill-dam, and his 3. Flood gates, things obstructive to 1. Navigation and to 2. draining, every one of them; and in case 1. new Ones be made where none was before, 2. or the ancient Ones be enhanced and enlarged abov● what they were before, 1. such Enhaunsements you are particularly to Present, and, by the Power of thi● Commission, they may be 1. abated 2. such new-erected ones you are to Present, and, by the Power of this Commission, they may be 2. prostrated and over-turned.  

2. Fisher, in his Fishgarthes', Wears, Hebbingweares, Keddles, and Hecks.  2. Secondly, The Fisher. And abundance of Devices he brings along with him, as 1. Fishgarthes, 2. Wears, 3. Hebbingweares, 4. Keddles, and 5. Hecks, all of them Engines and Devices to catch Fish; and ●y stopping or straightening of the Rivers, ●ll of them Impediments to Navigation, ●nd for such particularly reckoned up in ●he Commission; and in case any of ●hese Wears 1. have not been warranted by sufficient 1. Prescription, or 2. Custom, but 3. have been erected de Novo, 1. in, or 2. after the time of Edward the First, without Authority of Parliament, they may be Presented ●ere, and demolished. Or in case 2. ●uch as are warranted by sufficient pre●ription or authority, have any ways e'en enlarged and exalted above their ●tient Assizes, that enlargement ought articularly to be Presented, 1. wherein, and 2. how much it is: and they ought ●o be corrected and reform, that is, educed to what they were, and De ●ure ought to be.  
And so I have done with all such ofences as are Certi Nominis, and parti●larly expressed in the Commission: 
All other Impediments, Le's, and Annoyances.  But besides these, what offence soever shall be committed, that shall be, 1. either Obstructive, 2. or Destructive, to, 1. Navigation, or, 2. Draining, doubtless you are to Inquire of it, an● Present it. All which, that you either know, or can imagine: All of them, I say, are comprised in the Commission under the general terms, of, 1. Impediments, 2. Le's, and 3. other Annoyances: So that what things soever, shall in any manner or kind whatsoever, 1▪ either impede and hinder, 2. or let and destroy, 1. Navigation, or 2 Draining, 3. or shall in respect of either of them, be, Ad Nocumentum that is, be real Annoyances, or general Mischiefs, you are to make particular Presentment of them, and we her to take order, that they be reform and redressed.— And so I have done with the second part of my Discourse And have told you what you are to present; wherein, as to your Duty, have endeavoured to express my se fully and plainly: And I have observe a Method upon the Commission, as 't that end only, which, I confess, ma admit of some just exceptions: And u● on occasion hereafter, I may endeavour either to Clear, or Alter: However, I hope it may be excused, if it be considered, that I had not the least Vestigium of any man before, so as to Direct me, and to Follow him in it.  

3. How to Present.  One thing more remains, and that is, How you are to Present: And truly, Gentlemen, I would have your Presentments, both 1. Formal, 2. and Fair, 1. as to the substance or matter of them, Fair, and Just, and Justifiable, however; 

Fair.  
Formal.   2. and as for the Form of them, I shall blame no Man for questioning and insisting upon that too, as much as 1. the Nature of the Work, and 2. the End of the Commission will permit. But I would have it well considered, that it is not in works of this nature as in particular Causes, which other where are between Person and Person only: In them dispute matter of Form as long as you please, and if you miss one way, to it again another, there is but one Person suffers by it all the while, and he may be relieved well enough at last too:— But in works of this nature (in some of them at least, nay, in most of them) the whole Country is concerned; And I hold it no great discretion to dispute the Formalities and Necessities of a Presentment, while the whole Country may be drowned: for in such a Case, who must make the Recompense? But to come home to the business, all that I have to say to you, is, that your Presentments ought to be certain.  

Certain in respect of▪ Person.  1. Certain. First, In respect of the Person, that it may be known who you Present. Persons here in England have 1. Names, and Surnames, distinguishing them from such as be of other Names; and 2. they have places of abode, and other additions, distinguishing them from such as be of the same Name; and as many of these are to be expressed, as may sufficiently demonstrate the Person you Present, that it may certainly be known who it is you mean.  

Default.  2. Secondly, Your Presentment ought to be certain, in respect of the 1▪ Default, or 2. Offence, that it ma● be known what you Present, and tha aught to be as particular and certain a may be too, both in respect 1. of th' thing, what: 2. the place, where 3. the manner, how: and 4. the quantity, how much is in Default: and in respect of Offences, 5. the time, also when, would be some ways ascertained too, though not so exactly as in some criminal Causes, the very day and hour; yet so, as in your ordinary Actions of Trespass, so far I say at least.— And truly Gentlemen, nothing can carry the Form of a Presentment, that hath not these two Certainties, and that in all the respects and degrees I have mentioned. Commendable, nay admirable hath been the diligence and care of former Ages in this kind, who have gone, not by guess, and at random, but 1. to the Persons certainly, by their exact 1. Terrages, and 2. Aggistment Books: and 2. to the Default, by Admeasurements, and have ascertained a Presentment to a Foot: thus it hath been, but how is it now?— I have oberved in some of your Presentments, 1. That for the Persons you would Present, not so much as their Names are to be found in them, they being no otherwise expressed than by supposition, as Owner of such Lands, or Heir, or Assignee to one deceased, and these signify just nobody the Court can take notice of, without another Jury to inquire who they be. 2. In others of them, if you have Presented the Persons fully, yet they, upon perusal of your Verdict, could not certainly know for what: so that having 1. many Works of the same condition in several parcels, or 2. much Work contigiously adjacent in one, they could not certainly know what thereof to amend, so as to amend what was Presented; and all this, because you have not ascertained the 1. Default, or if that, not 2. the just and proper Place of it. These are the common Imperfections and Uncertainties of most of your Presentments, and I tell you plainly of them, that no more such may be offered to the Court.  

Annoyance.  3. Thirdly, Your Presentments ought to be certain in respect of the Annoyance or Mischief, whether it be so, in respect of 1. draining, or 2. Navigation, or 3. common Land-passage; and therein to express 1. wherein, and 2. how much the Country may be endamaged, or endangered, as to any, or all of them.  

Charge.  4. Fourthly, and Lastly, Your Presentments, in some particulat Cases, aught to be certain too in respect of the Charge; and in them you ought particularly to express what it is makes the Person you Present chargeable, that is, liable to do the Work you Present him for: And this holds in all such Persons as are chargeable to any Works of Sewers, by Prescription, Custom, Tenure, or Covenant.  
I have observed, that amongst the Persons chargeable to these Works of Sewers, 1. Some of them are more principally concerned in the Benefit, than in the Charge, much more by far, even almost beyond comparison how much: And yet, I know not how it comes to pass, but some of these, I think I may speak it too truly, have not had sufficient respect to the Commissioners, and their Proceedings, though all for their necessary Defence and Preservation. 2. Others imagine themselves to be equally, if not more concerned in the Charge, than in the Benefit: Such I mean, as have had shares of Land, or other Recompense, for doing of certain Works, and now would go away with the Profit of that, but would leave borh Charge and Danger too upon the Country, if they might: So that now it is come to that pass, that if you make not your Presentments certain, nay perfect and complete in all punctilios imaginable: though to your apprehensions they be never so slight and trivial, yet in Works of greatest Importance and Necessity, such as wherein the safety and defence of the whole Country may be concerned, nothing at all will be done by many Men, now a dries, unless it be by Certiorari to remove your Presentments, and then to find some fault or error in them, and so to avoid them.  
And truly Gentlemen, considering that your Presentments are the Basis and Foundation of the Commissioners proceedings, and that an Error there is like a Foundation-Errour, no mending of it, but all must down for it; it concerns you, to be more careful in the Forming of them, than you have formerly been; you see other Men of late have been more industrious than formerly in the questioning of them.  
For besides, that the uncertainty of ●our Presentments are 1. a Delay to the Execution of the Commission; they are also an 2, unhandsome Disparagement to the Court itself, to admit that here, which, upon Examination, will not hold good otherwhere.— Therefore, shall advise you, not to trust too much to yourselves. and to your own plain meanings; No, nor to what I have told you neither; for I am not of that Profession to instruct you fully herein: And what I have spoken, I have spoken altogether under favour, and leave of such as are: And seeing things this way far out, I have rather told you, 1. how your Presentments should not be, in respect of their common and ordinary Imperfections, 2. than perfectly, how they should be: I shall therefore advise you, I say. to have recourse to the Clerk of Sewers, and to consult and advise with him about the Form of drawing your Presentments, 1. the Matter of them, that is, ●. What to Present, and 2. Who; God forbid, but that, in regard of the Oath you have taken, should be left 1. wholly, and 2. only to yourselves. But as 2. for the Form of them, that is, 3. How to Present, what, and whom you think needful; in that, I say, the Clerk of Sewers may be helpful to you, and can be injurious to nobody.  
And so I have given you a rude, and a slight draught of your whole Duty, 1. What you are to do, 2. and How as to the substantial part of it. Some few Motives I would add to excite you to the doing of it.  

Motives from  There are but three honourable Motives I know of, that fall directly under the notion, that your Moral Philosopher calls, Bonum Honestum, and they are 1. Prudence, 2. Justice, and 3. Religion; to these three all other Notions of this nature may easily be reduced. I am not ignorant, that some seem to make them inclusive one of another, and so perhaps would make but one of all three; and very true it is, that Religion is the highest part of Justice, and that Religion and Justice are two of the highest parts of Prudence: but as to my present purpose, I shall make three of them; and then 1. the first of Prudence, concerns you as Men, endowed with Reason, and differing ●m the Beasts: 2. the second of Juce, concerns you as Common-wealthsen, living under Government, and ●fering from people merely barrous: 3. the third of Religion, conrns you as Christians, living under a kristian Government, and differing am all other Nations and Men, that eier are 1. of no Religion, or 2. of a false ●e. Three rational Motives they are, r above 1. the sordidness of Lucre, or the brutishness of Pleasure. I will be ●t short, but something I shall speak am every one of them, taken strictly, ●d in their proper Notions.  

Prudence.  1. First then, From Prudence. In ●se there was no Law to compel, yet, ut of common Prudence, Works of ●is nature (to say the least of them) ●e not to be neglected. First, They nrich your Country; Hence the usual ●●le in such ancient Inquisitions of ewers as I have seen, in some is, proommodo Patriae: In others, pro Utiliate, or pro Ubertate Patriae: For the ommon 1. Benefit, and 2. Fruitfulless, or the 3. common Wealth of the Country. Nay, Secondly, more: They reserve your Country: Hence the ancient style of the Commission it see was, pro Salvatione Patriae, ad Proudendum Salvationi Regni nostri: So ' ● literally expressed in the Form of t● Commission, by the common Law: A● for the Safety and Preservation of t● Commonwealth of England, the ve● words of the Commission, by virt● whereof we now sit.— You have thr● great Enemies, 1. the Sea on one sid● 2. the Fen waters on another, and 〈◊〉 the Rivers in the midst of you; whic were they not, by the due and dilige● Execution of this Commission, all ke● within their bounds, would soon swallow you up, 1. Stock, 2. Men, 3. Country, and 4. All.  

Justice.  2. Secondly, From Justice. First Law it is: Et Fiat quod L●x Jubet we all say: Laws are therefore mad that they may be executed. More, Secondly, 'Tis Lex Loci, the grand an peculiar Law of the Place, as I may ca● it; if other Countries may want it, w● in this cannot I am sure. And Thirdly 'Tis Lex Personarum too. You of thes Juries are now more immediately concerned in it, and more to look after it than most other Men: The Commissioners are now to View with your ●es, and to receive Information from ●ur mouths, you are the Men that re●esent the several Wapontakes where you dwell; and 'tis now, in a specil manner, become your particular ust and duty, truly to inform the ●ourt, what, by virtue of this Commission, is 1. fit, or 2. needful to be one there: and I hope you will be ●reful that you do discharge it.  

Religion  3. Thirdly, From Religion. And ●at is an Oath you have here taken, ●at you will discharge it. Shall I tell ou what an Oath is? 'Tis the very trongest Bond in Religion, and some ay, Religion itself hath its Name, a Ligando, as being nothing else but a ●ond to God-ward.— Now an Oath is ●o less than a Bond upon the Soul itself, Numb. 30. V. 3.) than an Obligation ●pon your Consciences, as you are Christian Men. Deum invoco Testem in Animam meam: I call God for a Record upon my Soul, saith the blessed Apostle (2. Cor. C. 1. V. 23.) And, So help me God, and his holy Gospels, that is, So help me God in Christ, say every one of you: You 1. contest God, you 2. oppignorate your Salvation: it may be both 1. a Soul-matter, and 2. a Salvation-matter, and therefore not lightly to be esteemed. 1. God, he is the God of Truth, and is there any of you dare deal falsely with him? and be 1. knowingly, yea 2. wilfully, and 3. stubbornly Negligent? And 1. not endeavour, nay, which is worse, 2. obstinately, and 3. absolutely refuse to discharge your Duty (as some very lately here before you have done) wherein you are thus solemnly engaged? however, in truth, and according to the best of your skill. 2. God, he is the God of Righteousness, and is there any of you, in an unjust way, for 1. Malice, or 2. Favour, or 3. Fear, or 4. Corruption, 1. dare not to do what you ought, or 2. dare to do what you ought not? If you dare, let me tell you, 3. God, he is the God of Vengeance too. Et qui fecit Testem caveat vindicem: He that hath made God a Witness, let him take heed he make him not a Revenger too; for he will not be a Witness in vain: neither will he suffer any of you, or us, no, not the best of us all, to take his Name in vain:— But Notions of this kind you ought to hear from another place, and therefore here I forbear them; only give me leave to tell you, That an Oath is a thing so Sacred, that the very Whore in the Commedian, she is at her Aliud si scirem Sanctius: There was nothing in the World she knew of greater Religion, or Obligation. And 'tis a sad complaint, in this later Age of the World, against Christian Perjury: Christianus Fecit, nil Mirum, nec Novum: That we Christians should make no more account of it; the very Turks upbraid us with it.  
So Gentlemen, to conclude, here is a the threefold Obligation upon you in this business; 1. the first, a Rational Obligation from Prudence: 2. the second, a Civil Obligation from Justice: 3. and the third, a Sacred Obligation from Religion: Let some of these, or all of them at least, make you both 1. careful, and 2. conscientious to discharge it. And so I trouble you no further with words, but leave you to your Work.  
DIXI.   

A Charge of Sewers: 1. As to lovel's Works, 2. And the Charge of them: Occasioned upon his Assigns being Outed in Deeping Fen; and the Reentry of the Owners and Commoners there, Anno Domini, 1657.  
Gentlemen, You of this Jury,  
TO give you some account upon what business you are called hither: It cannot be unknown to you, that one Thomas Lovel Esquire, some years heretofore, by virtue of certain Laws of Sewers, and of an Act of Parliament, became an Undertaker for the draining of two great Wastes in this County:— The one of them called Deeping Fen, understanding by that name, as I shall do throughout my whole Discourse, and as I have Warrant for it from a Law of Sewers made ●o that purpose, all the Fens in that Continent, between the two Rivers of Welland and Glean.— The other Thurlby Fen, and Burn Southfen. Some of you seem to be of those years, that I question not▪ but you did personally know the Man himself; and might also know both 1. the Condition of the said Fens, and 2. the Charge of all Works of Sewers relating thereto, before lovel's intermeddling.  

lovel's Undertaking a great Work, in respect of, 1. The Persons Interessed.  This Undertaking of his, I may well call a great Work, if mere Undertake make one: 1. Great, First. In respect of the Persons Interessed: For in the said Wastes, besides Cowbitt, and Caswick, and the odd Houses in Gretford, and Tofte; no fewer than twenty Towns in the parts of Kesteven and Holland, have right of Common: three whereof are Market Towns, and they of as good trading and traffic as most generally in the County. 2. Great, 
2. The End Intended: not in respect of,  Secondly, In respect of the End Intended, which was the great Benefit and Profit, that upon the draining of the said Wastes was to ensue; not only to the Commoners, and other persons, Owners therein; but also to the Commonwealth, and Realm of England itself.— And I would I could add, that it had been great, Thirdly, In respect 
3. The End Obtained.  of the End Executed too; that is, a great Work in the Performance, or a great Work perfected: but this being wanting, I may with much truth, and propriety of language say, it hath proved no Work at all. This great defailance is the cause of this present Meeting, and is the occasion of your present Enquiry:— For your better direction wherein, I shall propound three things: First, What the Covenants or Contract on the part of Lovel was. Secondly, Lovel for the present being legally Outed from his third part in those Fens, or in most of them, what now is to be done, as to the Works he hath left. And Thirdly, Where, and how they are to be charged.  

1. lovel's Undertaking.  Touching the First, the Covenants upon which lovel's Undertaking was grounded, may be reduced to two Heads: First, What he was to Do. Secondly, What he was to Have.  

1. lovel's Works.  As to the First, what he was to Do: the principal Works, omitting those of less concernment, as being not much material to our purpose, were these.  

The draining, and keeping dry the Fens.  1. First, 1. The draining of the said Fens, and 2. the continuing of the same for ever, firm, dry, and depasturable Grounds for cattle at all times of the year: a commendable Work doubtless, had he performed it. Antiquity hath made famous mention, and hath given famous testimony to Works of this nature: the very designation of them is recorded by Suetonius, to the fame and honour of that great Emperor Julius Caesar: and that, inter Majora opera, amongst those renowned and Imperial Works, or Designs of his, such as, to follow the expression of that Author, were de ornandâ Instruendâque urbe, de Tuendo Ampliandoque Imperio: For the Magnificence, and the Enlargement of the City and Empire, this very Work, Pomptinas paludis siccare, is reckoned for one. The like testimony was once to have been found in Livy, and the draining of those very Fens was recorded by him amongst the Consular Works of Cornelius Cethegus, the only Work that made his Consulship famous: And lest after Ages should altogether know nothing of it, Florus, who reduced the Books of Livy into an Epitome, and contracted that larger Book of his, wherein mention was made, amongst other things, of this particular Work, into Nineteen Lines; yet even amongst them affords room for this Expression, in honour both of the Consul, and of his Work: Pomptinae paludes à Cornelio Cethego Consul, cui ea Provincia evenerat, Siccatae: Agerque ex iis Factus. Such a worthy Work was it, in the esteem of Antiquity, of Fens to make Fields. But to digress no further, but to come home to Lovel, and the Works he was to do, amongst these was,  

The Maintaining the Fen-Banks.  2. Secondly, The repairing, maintaining, and keeping for ever, the Banks encompassing the said Fens: which Banks, to avoid all future Ambiguities and Scruples, are named in the said Laws, and therein particularly expressed: 1. Some whereof are for the Preservation of the said Fens from the Rivers, 2. Others of them are for the Preservation of some of the Towns concerned in the Undertaking, from the said Fens.  

The Rivers of Welland and Glean.  3. Thirdly, The maintaining and keeping the two Rivers of Welland and Glean for ever, with sufficient Diking, Roading, and Scouring: That is, the River of Welland, so far as the County of Lincoln is charged therewith, from the beginning of Deeping Bank at the Bar: And the River of Glean, from Basson Spout, unto their Out-fall into the Sea, at or near the place where both the said Rivers do meet.  

All Fen-Draynes  4. Fourthly, The maintaining and keeping sufficiently Diked, Cleansed, and Scoured for ever, all manner of drains, Sewers, and Passages for the Water, and all other Water-works, 1. which at the making of the said Laws were in use for the draining of the said Fens, and should be to that use, 1. continued, or 2. enlarged by the said Lovel: As also 2. all such other drains, as should by the said Lovel, or his Assigns, be devised, and made of new, at their discretions, for that use and purpose. These four, I conceive, are the material Points of lovel's Charge, what he was to do. And to prevent any weakness or mistaking of mine own, I have pursued the very Letter of the said Laws, and have given them to you in Charge here, as I find them there.  


2. lovel's Recompense a third part of the Fens.  
H●ld subject   As to the Second, What Lovel was to have: 'twas a full third part of all the said Fens, amounting to 10885. Acres, as I account them: A Recompense as great, and as full, as any Undertaker whatsoever in these parts, originally, and upon the first Onset, either had, or desired. Look into the present Level of the Earl of Bedford▪ Or into that sometime the Earl of Lindseyes: Or into that heretofore of Sr. Anthony Thomas, and you shall find none of them had more than a third Foot, some of them not so much,— And this third part he was to have in Fee-simple, to him, his Heirs, and Assigns for ever. Subject, First, To a Condition 
To a Condition of Reentry.  of Reentry, on the behalf of the Owners and Commoners, upon such 1. Default, and 2. Certificate: 1. in such manner, and 2. during such time, as in the said Laws is expressed. And Secondly, Subject to a Charge of all 
To a Charge of Works.  manner of Banks, Sewers, Rivers, Goats, Sluices, drains, and other Works whatsoever, for the Inning, Drayning, or keeping dry of the said Fens.  
And Gentlemen, This is all I have to say to you, concerning Lovel, and his Undertaking: both 1. as to his Works, what he was to do: and 2. as to his Recompense, what he was to have: which if any here shall think Extravagant or Impertinent, and not pursuant to the present business, I shall crave his pardon: For my own part, I did not know how to fall upon the following parts of my Discourse, without speaking this, as a Foundation to it: nor how to break into them, with that clearness and fullness I desire, without relating it.  

2. The Jury to Present.  And so I come to the second part of my Discourse; Lovel for the present being Outed from his third part in these Fens, or in most of them, (the Commoners having lately made such a legal Reentry upon them, and in such manner, as by the said Laws is directed) what now is to be done as to the Works he hath left.  
And truly Gentlemen, To deal plainly with you, I must, in the first place, confess myself not to be of that Profession, or Ability, as to give you sufficient Instruction herein: only somewhat I would speak, out of a desire I have to give you some Light in the business: and that not only 1. with submission to all present on the Bench, in case of a better Judgement: but also with a 2. desire, they would be pleased, to observe and correct my mistake. For my own part, (I speak it clearly) I am neither so contentious, nor conceitedly ambitious, as to have any Error of mine maintained, and thereby to lead you into a worse; and it may be such a one as may be destructive to the whole business you are now about: But to go forward.  

1. What Works Lovel had in Charge.  To speak your business in few words: It is to Inquire, and to Present in particular, First, All such Works as Lovel, or his Assigns, had in use, and were charged withal: 1. which either directly tended to the draining of the said Fens, or 2. were put upon his Charge in order thereunto. And Secondly, 
2. What Defects are in such of them, as are to be continued.  What Defects in particular are in such of the same, as are 1. fit, and 2. necessary to be continued.— For I observe to you, and you are to take special notice of it, that the Works in the Charge of Lovel, and his Assigns, are of several kinds.  

lovel's Works.  1. First, Some of them of ancient charge and use. Secondly, Others of them are of lovel's, or his Assigns own 
1. Some of his own devising: whereof,  devising, Works made by him, or them, de Novo, at their own pleasures and discretions: For Lovel had power to continue what ancient drains he pleased; and also, at his will and pleasure, to make new drains, either 1. within the Fens, or 2. without towards the Sea, of what quantity, depth, or wideness, should in his own discretion be best, and of most advantage for the perfecting of the Work. Neither could this Power, in such manner as it was granted to Lovel, be any ways 1. unreasonable, or 2. injurious. 1. Not unreasonable, because these Works were to be made at his only charge, and as for the success of them, that was likewise to be wholly upon his sole adventure and hazard. 2. Nor injurious, for none could ever have had just cause of complaint,— in case 1. the work of Drayning had, according to the Covenants of his undertaking. been perfected in all the Fens:— and 2. the particular Provisions under which the said new Works and drains were to have been made, and to have run, or been made use of, had been observed: to wit, 1. that they run not above soil, 2. or to the hurt of any person or persons, 3. or to the hurt or crossing of any other Drayn. But Lovel neither 1. perfecting the one, 2. nor observing these other, some of those Works that he had power to make, are now become, not only injurious, but altogether intolerable: For amongst these new Works of lovel's own devising,  

Some Drayn one Fen, by Drowning the other: and are not to be continued.  1. First, Some of them are such, as Drayn one Fen, by turning the Waters thereof into the other, and there leaving them: These I know not well whether to call Works of Drayning, or Works of Drowning rather. I confess a new device it was of lovel's, by such Works as these, to Drown well nigh thirty thousands of Acres, for the Gaining or draining of three. And not to speak in the dark, but to give you a plain instance: In case Thurlby Tunnel shall, upon your Enquiry, appear to be a new Work, devised by Lovel for the draining of that Fen; and shall appear mischievous to the 1. making, or 2. increasing the surrounder of Deeping Fen, you are to give special notice of her in your Presentment: and therein to express, 1. quo Jure, that is, by what Law or Right she lies: and 2. ad quod Damnum, to what Damage or Mischief she runs. lovel's proper Work was to have drained these Fens: And I deny not, but that the manner of Drayning was wholly in his power and discretion: But this I say, lovel had not power to Drown, or to increase and double the surrounder of Waters in any of them, and then to leave them, and to leave the mischief of such other Waters upon them, as before never annoyed them. And give me leave, seeing it falls directly to my purpose, to observe to you the present condition of Deeping Fen.  
On the one side of it, First, All the Waters of Thurlby, and Burn Fen, and of that part of the Country descending into that Fen, are wholly issued into it. Secondly, The Overflowings of the River of Glean, and the whole mischief thereof, upon all Floods, and increase of Waters, is wholly avoided upon it; and all this mischief falls directly upon the said Fen since lovel's time, and by new Works of his devising: such as is, 1. the tunnel aforesaid, and 2. the Slakers on Basson Bank, and 3. the exalting the Banks for Defence on Thurlby and Burne side, much above their ancient heights: Works contrived on purpose for the 1. turning the Waters in hither, and the 2. taking them off from Thurlby and Burne Fen, which was formerly their ancient Receptacle: and, upon that score only, heretofore esteemed one of the best Pike-Fens in the Country.— On the other side of it, besides the surrounder thereof by its own proper Waters; such 1. as fall either immediately upon it, or 2. have their course into it, 3. to look upon the River of Welland, that great River, and well to consider the great violence thereof: one half of whose streams, not long since, had their passage to the Sea another way, through Croyland; and yet even then, a great part of its Over-flowings upon all Floods, received by South-Ea Lake, and otherwhere into the great Level: Now I say, to consider the said great River, 1. banked out on all hands securely from thence: 2. lost below in its Out-fall to the Sea: and the violent streams and rage thereof, 3. thrust and straitened into one Channel above: and 4. turned wholly upon this one poor Fen: This I say, being well considered; and this being the present condition of this Fen, it concerns us all nearly, to look carefully to it, and to keep out all such of these Waters, as legally may 1. either be kept out of it, 2. or kept off from it: otherwise the truth is, this Fen will not be long able to contain them, but must of necessity discharge them, to the unavoidable destruction of such Towns as are seated below it towards the Sea.  
And although I know many of an Opinion, that by the Commission, such Works of lovel's as these may be totally removed, and destroyed, a Fundamento: yet it is unquestionably certain, that the mischief of them may, and aught to be totally removed: And to that purpose, 1. some of them may be abated, 2. others of them are to be stopped up, and made useless: if otherwise, they cannot be made harmless. But besides these,  

Others tend directly to draining: and are to be continued.  2. Secondly, Other Works there ●e of lovel's devising, that have no mischief in them, but directly tend to ●he work of Drayning, as 1. either to ●ll, 2. or to some of the Fens by him undertaken; and these you are also to ●ake notice of, and particularly to Pre●ent: 1. what they are, and 2. how necessary or useful they may be. And ●o much concerning those Works that were wholly devised of new by Lovel, or by some of his Assigns; and 1. how ●ar, and 2. to what purpose you are to ache notice of them in your Enquiry and presentment.  

2. Other Works of ancient use; whereof,  But, as I formerly told you, besides those Works of lovel's own devising, de Novo, there were others upon his Charge too, that were of ancient charge and use: Such I mean, as were in charge upon the Country, and in use, 1. for the draining of the Fens, or 2. for the Preserving of the Towns against them, time out of mind, before ever Lovel intermeddled. Now these likewise will fall under a twofold consideration.  

Some continued on, without Alteration.  1. First, Such as were time out of mind ancient drains, or Banks, or other Works, continued on by Lovel, or his Assigns, in their ancient way and course, without any 1. exalting, or 2. enlargement, or any other 3. change or alteration whatsoever, 4. or with such small or slight alteration, as in effect is to be esteemed none at all. And such as these you are to take special notice of in your Enquiry, and in your Verdict to Present them in particular, what they are, and to distinguish them from the rest.  

Others continued on, with great Alterations and Enlargements.  2. Secondly, Such other ancient Works as are continued on by Lovel, and his Assigns, but not in their ancient way and proportion, but with much alteration, from what time out of mind, I may say, from what time within mind; they have been. Such drains I mean, as have for the greatest, or a great part of them, 1. been altered in their Channels, and made of new: or if continued in their old Channels, yet 2. therein much enlarged, beyond and above their former 1. Bredths, and 2. Depths, For Lovel, and his Assigns, had power, both 1. to continue such ancient drains as he should think fit, in their old and accustomed wideness and breadth: and also such other as he should think fit, 2. to enlarge at his and their own will and pleasure.— So Gentlemen, as I take it, this will be one considerable Point in your Charge: and in your Enquiry you are to take special and particular notice of all such drains and Works so altered and enlarged: and in your Verdict particularly to express, 1. wherein, and 2. how much that alteration is.  
And so I have done with the second part of my Discourse, and have told you, 1. what now is to be done, as to the Works Lovel hath left; and 2. with what differences and distinguishments you are to observe them, and Present them. 1. Some of them, as I told you, are not to be continued, in such use as at present is made of them at least, as those of his own devising, that are mischievous; and of these you are to take no other notice in your Presentment, but that 1. they, or 2. their mischief however, may be removed. 2. All the other of them are to be continued, at least not to be destroyed; and under such distinctions as I formerly observed them to you, you are to take notice of them, 1. in what condition they are, and 2. how useful they may be, and 3. to Present the defects there of, that where necessity is, they may be repaired and amended.  

3. The Works to be charged, either upon  And so I come to the third part of my Discourse, to tell you, how these Works are to be Charged, and who they be that ought to repair them; it would be otherwise to small purpose to Present them.  
In this case there are but three ways imaginable, where the Charge of them should at present either 1. rest, or 2. be 
1. The ancient Charge-bearers.  cast; and that is, either, First, Upon the ancient Charge-bearers, and those that are now in their Right, according to their former Allotments and Apportionments, before lovel's intermeddling. 

2. Or Lovel.  
3. Or the Commoners in the Fens.   2. Or else, Secondly, Upon Lovel, his Heirs, or Assigns, in case he or they be bound thereto. 3. Or Thirdly, in the last place, To use the Authority of the present Commission of Sewers, and to lay the Charge of them, 1. upon the whole Fens, and the Commoners therein, that receive the benefit of them, 2. or to assign and decree some reasonable 1. part of the Fens, or the 2. profits of it, as to that purpose— And here give me leave to observe to you, that no new Charge is to be imposed upon the Fens, or the Commoners, by virtue of the Commission, (without the Owners and Commoners consent thereto) but 1. where the ancient Charge is 1. unknown, or 2. extinguished: 2. and where Lovel, his Heirs, and Assigns, are 1. acquitted, or 2. are not in a condition or capacity, by the power of the Commission, to be compelled. This way of Charge I mentioned to you in the last place, and it is only to be made use of in the last place, when all other ways fail: and for 1. necessity, or 2. conveniency to supply their defects. And having observed this to you, I now proceed to declare unto you, with as much wariness and cautiousness as I can, where the Works, formerly in Charge of Lovel, according to the distinctions I observed amongst them, are now to be charged.  
1. And in the first place, we have already told you, that amongst the Works of lovel's own devising, some 

1. Such Works of lovel's devising, as are not to be continued, are not to be charged.  
2. Such as are to be continued, are to be charged.   of them are not to be continued, b reason of their mischief; and therefore, as to these, you need not inquire who is chargeable: And of them I shall need say no more, but, that if any Persons of their own accord, would offer to bear the Charge of them, they are not to be admitted, because the Works themselves are not to be suffered.  
2. Secondly, As to the rest of the drains and Works devised by Lovel, or his Assigns, that are of use and benefit, you are to consider well where to Charge them; for, without apparent mischief and danger to the Country, they can neither be 1. left, nor 2. lost.— And as to these, I take 
But not by way of ancient Charge: but upon  it to be clear, that no ancient Charge can be put upon them, because they themselves are not ancient Works. They are Works, de Novo, of lovel's own devising, and could not be in Charge before they were in Being: 'Tis true, that some of them, if not all of them, do supply the use of such ancient Works as by Lovel were deserted, and are now irrecoverably decayed and lost: But, as I take it, though Lovel might at his pleasure transfers the Work; yet because that was not the same Work, in Individuo, with the ancient one, but another, and a new Work in lieu of it, he could not transferr the ancient Charge, and affix that to a new Work of his own devising: but the ancient Work being extinguished and lost, the ancient Charge is extinguished and lost with it, and no Law I know of can remove it hither to these new ones. So then, the Charge of these Works must be put 1. either upon 
Lovel: Or, The Fens.  Lovel, his Heirs, or Assigns, that first devised them: 2. Or else upon the Fens, that receive the immediate and whole benefit of them.  

3. Works of lovel's enlarging, to be continued, and their Enlargements to be charged:  3. Thirdly, As to those other drains and Works that Lovel made not, but only made use of; Works of ancient Charge, and continued on, but with great Alterations and Enlargements. As to these, I conceive, 1. If they should be reduced to their ancient Charge, that would be to little purpose, for that would not maintain them in their present Enlargements. 2. Or if the drains and Works themselves should be reduced to their ancient Proportions, that would be of worse consequence; for as to most of them, they are in that manner contrived, and fitted to their present Channels and Currents, that to reduce them now to what formerly they were, would be little less than to spoil 
Not upon the ancient Charge-bearers: but upon  and destroy them. And I take it to be clear, 3. That the ancient Charge cannot be enlarged in a proportion to the Enlargement of the Works; for the ancient Charge, was a Charge fixed by the common Law, upon certain Persons, by reason of their Tenure of certain Lands or Manors, or for other certain consideration: A known fixed Charge, and ascertained, and not to be stretched no more than the Law itself 
Lovel: Or,  that fixed it.— Now that Lovel might well charge himself, and his Heirs, and Assigns, as to these Enlargements, I hold it agreeable both to Law and Reason, because they were Works done 1. by his own will, 2. and upon his own adventure: but that Lovel thereby, should at his own pleasure, and for his own advantage, increase the Charge of another, and lay a new Encumbrance upon another man's Lands and Estate, I, for my part, hold unreasonable, and altogether improbable.— So these Works likewise, have none to maintain them, in the proportion they are now in, unless they, as to their particular Enlargements, may be charged 1. upon Lovel, his Heirs, and Assigns, 
The Fens.  that enlarged them: 2. or upon the Fens that shall receive profit thereby.  

4. Works of ancient Charge unaltered.  4. But Fourthly, and in the last place: To come to such ancient Works as Lovel made use of in their ancient way and course, 1. without any alteration at all, or 2. without any great one worth the taking notice of: And of these I cannot speak my mind clearly to you, without distinguishing them, so as I may make an 1. Equitable difference amongst them at least, even as they stand in relation to Lovel, and his Assigns: and a 2. Legal difference amongst them, as they stand in relation to the Fens, and the Commoners therein.  

1. Such ●s Lovel had no consideration for: upon lovel's neglect and abeyance,  1. First then, Some of these are such as Lovel charged himself withal, without any reason or consideration, more than his bare will and pleasure: And thus the River of Glean, so far as the Town of Surfleet was anciently charged with the same, became lovel's Charge and Work: 'Tis true, they of Surfleet have lovel's Covenant for their discharge, but that is no absolute Discharge, but only a bare Covenant, such as it is, without Consideration too, to discharge, or save harmless; which if he do, it is well, and no more can be desired; 
Return to their ancient Charge.  but if he do not, they of Surfleet, as I take it, may be compelled by the Commissioners of Sewers, to do their work in their ancient manner and charge: and they have their remedy over at Law against Lovel, for not performing his Covenant, where they 
lovel could not Charge the Fen-Lands with them longer than they were in his own hands.  may take it.— However, this I think I may speak clearly to you, that although Lovel might charge the third part of these Fens, wherein they of Surfleet never had any interest, for the doing of this particular Work of theirs, whilst the said third part was in his own possession and disposal: Yet, I take it, such Charge is now become void, or suspended at least, upon the Reentry of the Commoners, and during their holding of it: Lovel could create a Charge therein no further than 1. as for his own Estate, and 2. whilst it was in his own hands: the Owners, and the Commoners, he could not, by any act of his, damnify.— So Gentlemen, You are to make special Presentment of the River of Glean, and to express how far they of Surfleet have been anciently, and of right chargeable with the same. And you are also to make Enquiry 1. into the ancient Charge of so much of the said River, and 2. into the present Defects thereof; and to make particular Presentment of them, upon such Persons in particular, 1. inhabiting, or 2. holding any Lands or Manors in the said Town, as of right aught to amend them.  

2. Such ancient Works as Lovel had Consideration for, in the first place, are to be Charged upon his Heirs and Assigns.  2. Secondly, Other ancient Works there are, that Lovel continued on, in their ancient course, without alteration, and took upon his Charge upon reasonable consideration and recompense; 1. Such Works of this nature as you shall find, as I take it, the Charge of them, in the first place, even for the present, is to be laid upon Lovel, his Heirs, & Assigns, and not otherwhere, but upon their neglect and default. 2. And if the Charge of these 1. ancient Works that were made before Lovel▪ time, then much more, and à Fortiori, 
As also, all such other Works, as were of lovel's 1. devising, or 2. enlarging.  the Charge of all such other Works also, as were of lovel's own 2. devising, 3. or enlarging: for they in a more peculiar manner relate unto him, and carry, as it should seem, his special mark and stamp upon them.— And to clear this to you, as to all these very Works in particular, (all which, that they were expressedly in the Charge of Lovel, I declared unto you at large in the first part of my Discourse, wherein I told you, what Lovel was to do) as 

A double Charge upon Lovel.  
1. By way of Covenant.   to all of them, I say, there is, by the Law, a double Charge upon Lovel.  
1. First, A Charge upon Lovel, his Heirs, and Assigns, and every of them, by way of Covenant, at their own proper costs and charges, for all times for ever hereafter, to repair, maintain, and keep them; and thereof, (to bring it home to my present purpose) for ever to discharge, exonerate, acquit, or save harmless, as well the Queen's Majesty that then was, her Heirs, and Successors, as all other Persons, their Heirs, and Assigns, of and for their repairing and amending their several parts or allotments of the same.— So Gentlemen, Take notice of it; here is an 1. absolute Charge upon Lovel, his Heirs, and Assigns for ever: and 2. a Discharge, by way of Covenant, as to all other persons. And a Covenant, we all know, is a good ground of Charge, in Cases of Sewers; and is binding to the Heir, 1. in case case he be named therein, as in this he is: 2. and hath Assetts descended. So that in case you shall find Lovel to have an Heir, who holdeth Lands in descent from him; though the Lands lie out of the Country, and the View of the Commission: yet the Heir, by reason of them, is chargeable to these very Works: I say not, that such Lands are chargeable, but that such Lands are Assetts in the hands of the Heir, making him chargeable.  

2. By way of Tenure.  2. Secondly, There is a Charge upon Lovel, his Heirs, and Assigns, by way of Tenure: he or they had certain Lands, that is, 1. the third part of these Fens, 2. or some of them being part of the said undertaking, made, and ●o be held subject to this Charge, by ●he Act of Parliament thereupon. The continual maintaining of these Works; and thereby the keeping dry of these Fens, is the expressed Consideration Lovel had these Lands for: And, as I conceive, the Charge of these Works shall go along with these Lands, and with every part of them, in cujuscunque manus devenerint, be Owners of them who will, under lovel's title.— So Gentlemen, I conceive it will be one very considerable Point in your Charge, to Present 1. how much of the said Lands is in the present possession of Lovel, his Heirs, or Assigns: 2. where the said Lands lie: 3. and who are the present Owners and Tenants thereof.  

The-Commoners Reentry neither a Suspension nor Extinguishment of lovel's Duty.  As for the late Reentry of the Owners and Commoners upon part of them, I for my own part conceive, that by the Intendment of these Laws, such Reentry was never conditioned for an acquittal on the behalf of Lovel: but was therein inserted altogether in favour, and for the benefit of the Commoners and Owners; and, as I take it, is nothing else but a mere penalty upon Lovel for his default; and during it, a suspension of his right: but is neither a suspension, nor extinguishment of his duty.  

If lovel's Heirs be without Assetts, and his Assigns out of Possession, then in their neglect and abeyance,  So then, 1. lovel's Heirs are chargeable to these Works, but so far only as they have Assetts descended: 2. and lovel's Assigns are chargeable also, but so far only, and so long as they are Owners, Et Dum Tenent Terras, and are Terretenants, and hold the Lands, or any of them, upon which this Charge is fixed.— But put the case, 1. lovel have no Heir with Assetts in his hands to charge him, 2. and that the Assigns of Lovel should be Outed the Fens, in Toto, and should stand at abeyance, that is, 1. neither do these Works themselves, nor 2. yet part with their right to these Lands, so as that others therewith may be procured to do them; nor so much as look after them, or us, but at their own time, and when they shall please. For certain 
1. Ancient Works unaltered will return to their ancient Charge.  it is, 1. a right of Reentry they have upon us, when ever they shall do their Works: and 2. 'tis a very great question, whether we have any compulsory power at all upon them, during their dis-possession: or 3. that being Outed in part, should be Acquitted in part; and as to these particular Fens and Works; and should stand at like abeyance, as to us, and them.— In this case, when ever it shall be or happen, during the Acquital, or other Dismission, 
2. New Works are to be charged upon the Fens.  or Intermission of lovel's Assigns; and supposing the Inability, or Incapacity of his Heir: 1. These ancient Works unaltered, will return to their ancient Charge: And all the rest of the Works, such as were of lovel's own 2. devising, or 3. enlarging, as to their 
3. Ancient Works altered and enlarged, are to be charged, both upon the 1. ancient Charge-Bearers, as to their ancient Proportions: and 2. upon the Fens, as to their Enlargements.  particular Enlargements only; and are so to be continued on by the Commissioners, for the common good, may by them, and by virtue of this their present Commission, be charged upon the Fens, and the Commoners that receive the immediate benefit of them.— And in case of such Failer on the part of lovel's Heirs, and Assigns, can, according to what I have formerly told you, no where else be charged.  
And to avoid all difficulties, as to the defraying of the Charge of these Works wherein the Commoners in these Fens shall be any ways concerned, I shall propound this to you, as a way of the greatest ease, and of the greatest equity: That the third part of these Fens, formerly held by Lovel, may still be held on in severalty: and that 
lovel's third part still to be held in severalty; and with the Commoners consent, that way employed and decreed.  with the consent of the Owners and Commoners, the profits of it may be disposed of, for the discharge of them. And if they shall think good to desire it, a Decree of Sewers may be drawn up to that purpose.  
And thus far we have pursued Lovel, and his Works: But what if other Works, 1. that were never in the Charge of Lovel: 2. nor in the Charge of any other Person, appear to be of 
The Out-fall of Welland.  necessity, and of such great necessity, as that without them, the maintaining or perfecting these Works in the Charge of Lovel would be to little use or purpose: Such as I conceive, may be the opening of the Sands, and the making of a new Current or Channel in the River of Welland, for some Miles together further towards the Sea than ever heretofore the said River was in charge. I shall leave the 1. Necessity of this Work wholly to your considerations; and withal to consider well, and to inform the Court, 2. what is the true cause of the present decay or loss of the River of Welland in its ancient Out-fall; that in case of a new Charge, it may be imposed 1. upon them that occasioned it, and 2. upon such Lands as are gained by it.  

All other Defaults and Offences.  And thus I have altogether done with the grand Business of your Charge and Enquiry. But besides this, 1. what other Works of Sewers you shall find in Default, or 2. what Offences you shall find committed, contrary to the Laws of Sewers, 1. either upon your own View and Knowledge, 2. or upon sufficient Information from others, in your Enquiry, you are to take special notice of them; And such Works in Default, you are to Present 1. upon the Persons that ought to repair them: and such Offences you are to Present 2. upon the Persons that committed them.  
And now Gentlemen, I have spoken my mind to you 1. freely, and 2. plainly; And in any thing I have spoken wherein 1. you are not satisfied, you may consult the Court: and in any thing wherein 2. the Court is not satisfied, I do humbly desire it, they would be pleased better to inform you.  
DIXI.   

A Charge of Sewers: As to the Charge of the River of Glean, from Newbury, through the Town of Surfleet, to the Sea; 1. That it was the ancient Charge of the Town of Surfleet: And 2. That during the Outer of Lovel, his Heirs, and Assigns, and their Failer and Neglect, they of Surfleet are for the present bound to Maintain it,  
Gentlemen, You of this Jury,  
YOU have heard a Petition, and the Order of the Court thereupon, read here; and they give you a short account upon what Business you are called hither: 'Tis to set out some 1. speedy, and 2. effectual Course, for the Ditching of the River of Glean, from a place called Newbury, through the Town of Surfleet, to its Outfall. This is the present work, both of us here, that be of the Court; and of you, that be of the Jury: And upon the whole matter, I shall propound three things to your Considerations: 1. The first shall be concerning the Necessity of the Work. 2. The second concerning the Persons upon whom the Work at present is to be Charged. 3. And the third concerning the Manner of that Charge.  


1. The Necessity of the Work.  
1. 'Tis for the Preservation of Navigation.   As to the First: Though the Petition in its own words be full, and requires no Commentator; yet out of it I shall instance in these particulars.  
1. First, 'Tis for the Preservation of Navigation: The loss of this 1. deprives many particular Men (that way ●red and subsisting) of their Employments and Livelihoods, 2. it deprives the Country itself of many rich Commodities and Advantages; and as to these parts, 3. it destroys and blocks up that general Trade and Commerce they have formerly had by this River with the other parts of this Nation. So Gentlemen, You are to Inquire, 1. Whether Boats, Barges, and other Navigable Vessels, can have such 1. full, and 2. clear Passage upon this River, as of right they ought, and have been accustomed to have: And if not, 2. You are to certify the Court of it, and the Cause why they cannot have it. The Law of this Land is, and always hath been very careful of Navigation, and will admit nothing that shall be to the 1. Deterioration, much less to the 2. Destruction of it. And the Preservation thereof is one of the main Ends the Commission of Sewers itself was made for.  

2. 'Tis for the Preservation of a great part of the Country.  2. Secondly, 'Tis for the Preservation of a very great and considerable part of the Country. This River is the only Outfall (that can lawfully be claimed) for the draining of the whole Township of Pinchbeck, and for the draining of a great part of the Township of Spalding; and upon the loss of this River, would unavoidably follow the loss and destruction of one of these Townships at the least. But besides these two, many other Towns, Fields, Meadows, and Fens, in the adjacent parts of Kesteven, have, of ancient Right and Custom, issued their Waters by this River to the Sea; and they all, of necessity, must sustain great and inestimable Damages in the loss of it: A loss too great, not only to the particular Persons having Interest; but also to the Body of the Commonwealth, in losing such a part of itself; and no ways by the Commissioners of Sewers to be suffered or endured. For, Gentlemen, I would have you take notice of it, that the Preservation of Towns and Grounds, heretofore through politic wisdom won, and made profitable for the benefit of the Commonwealth, is the chief thing within the charge and care of this Commission.  
The Seacoasts upon this Country (you all very well know) is a flat, and a loose Sand; and would soon silt, and stop up the Outfalls of the whole Country, was it not for the Rivers, and the constant Streams of Water issuing down their Channels. And I observe, that it hath been the prudence and providence of our Predecessors, and such others as have been employed for the Preservation of this Country, to preserve the Outfalls of the Rivers in their full deepness; and to lay what force of Water they could upon them, either by fins, or such other Devices, for the scouring out of the Sand.— Now this River of Glean, as to this very part of it from Newbury, that you now have in charge, 1. it being the Out-fall to the whole River, and 2. it being at present so greatly obstructed, that by reason thereof, this River cannot discharge its own Waters into the Sea: Look a little back upon the mischief of it: First, Those Waters rebound upon the Fens, and cause a great surrounder there; From whence, Secondly, Upon all winds and storms, they rage against the Defensive Banks of the Towns, and cause a daily danger and fear there. And Thirdly, They obstruct the Outfalls of all your other drains:— So that for the present, what violence of Waters soever shall come upon the said Townships, either by downfall, or otherwise, (such is their sad condition) they must receive all of it in, and can issue little or none of it out.— And thus this River of Glean, and that other of Welland, heretofore the two principal Ornaments of this Country, and the chief riches and delights of the Towns through which they had their Currents, are now, 1. for want of maintainting, and 2. by reason of other abusings, become the greatest Mischiefs: And those Towns, heretofore the principal in the Country, are now become little better than mere Ponds and Pools, nay very Seas, as in truth, whoever at present will look upon them, shall find them such.  

3. 'Tis for the Preservation of many other Works of Sewers.  3. Thirdly, 'Tis for the Preservation of many very great and considerable Works of Sewers, lately repaired for the good of the Country: As 1. Blue Goat, 2. Burtons' Goat, 3. the several drains leading to each of them; all which depend wholly upon the gaining of the Out-fall of this River; which if once effectually Ditched, these very Works would preserve: and if not, 1. the Works themselves will be altogether useless, and 2. great sums of Money expended about them, will be utterly lost.  
And so I have done with the first part of my Discourse, and, I hope, have therein sufficiently intimated to you, the Necessity of the Work, and that the Necessity of it is so great, that, without unsufferable damage and danger to the Country, it can admit of no delay. In majoribus Causis, major adhibenda est Cura: The greater import and necessity the business is of, the greater also ought to be the care of such as are trusted in the management of it. The Commissioners you see have sufficiently testified theirs, 1. in giving it a particular Consideration, and 2. directing you, as a particular Jury for Enquiry in this mighty Business: And I doubt not, but that you will all of you endeavour to manifest your care and diligence in doing of your parts; as the Commissioners have in doing theirs.  

2. The Persons Chargeable.  And so I come to the second part of my discourse, to declare unto you, the Persons upon whom this Work for the present is to be charged.  

The Charge upon Lovel, his Heirs, and Assigns, by Laws of Sewers 41. and 42. Eliz. by Act of Parliament 1. Jacobi.  Clear it is, that the Charge thereof for many years last passed, ever since the 41 st. and 42 d. of Queen Elizabeth, by certain Laws of Sewers then made: or at least ever since the First of King James, by Act of Parliament, in Confirmation of those Laws, hath been upon Lovel, his Heirs, and Assigns; The words are, That Lovel, his Heirs, and Assigns, at his and their own proper costs and Charges, (amongst many other things) shall also for ever maintain and keep the Rivers of Glean and Welland with sufficient▪ Diking, Roading, and Scouring: to wit, (the River of Welland, as is therein expressed) and this of Glean, from a place called Basson Spout, unto its Out-fall into the Sea. (So that this part of Glean, from Newbury, through Surfleet, to its Out-fall, was undoubtedly included in lovel's Charge, and was a part of his Work.) And also shall thereof discharge, exonerate, acquit, or save harmless, as well the Queen's Majesty (that then was) her Heirs, and Successors, as all other person and persons, their Heirs, and Assigns, of and for the repairing and amending of their several Parts and Allotments in either of the said Rivers.  
These words are all, that any person, formerly liable to the maintaining of these Rivers, can allege, 1. either to charge Lovel, 2. or to discharge himself.— And I shall consider how far these words may operate: First, As to the Charge upon Lovel, his Heirs, and Assigns. And Seconly, As to the discharge of such other Persons as were formerly liable thereto.  

1. How far the Charge imposed extends upon 1. Lovel.  1. For the First: As to the Charge imposed upon 1. lovel, his 2. Heirs, and 3. Assigns, how far it shall extend upon them; that I may proceed therein with the greater clearness, I shall take them severally. And,  
1. First, As to Lovel, the Person that bound himself to the doing of these Works, I take it to be a full Charge upon him, both as to his 1. Person, and 2. as to his Estate.— But he many years since is dead and gone, and so 1. no help from him for the present at all, 2. much less any present and speedy help, such as the Necessity of this Work requires.  

2. His Heirs.  2. Secondly, As to his Heirs, they being herein expressly mentioned, I take it to be a Charge to them likewise, so far as Heirs by the Law are chargeable; that is, 1. so long, and 2. so far as they have Assetts descended. The Laws of this Nation (give me leave to speak it) are not so hard in this Point, as those sometimes of the Kingdom of Israel, where the Children might be made Bondslaves to satisfy the Father's Creditor: No, they burden not the Heir, where the Heir hath no benefit. And as to any Estate 1. of his own industrious Acquest, 2. or of Gift, 3. or Right from others; they burden not that neither: And 1. no farther, nor 2. no longer is the Heir liable, than so far, and so long as he hath Assetts in descent. Now in case you make Enquiry after lovel's Heirs as to this particular, I doubt it will be to little purpose: Lovel confesseth himself to have spent his whole Estate in these Works, and very unlikely are his Heirs to hold Lands from him otherwhere, who never enjoyed from him one Foot of these in the Fens. So then, Inquire you 1. may, and 2. ought after them; but if no Assetts be in their hands, no Relief will be had from them in this business.  

3. His Assigns  3. Thirdly, As to his Assigns, they are Persons, I confess, of great Estates, and Honour too; but I conceive, can de Facto, no longer be forced to the Charge of these Works, than de Facto, they are Terretenants, and hold the Lands whereupon the Charge of them is fixed: So that for the present, they being Outed from the Benefit of the One, (the Commoners having lately made their Reentry there) they cannot, during such Reentry, and the Commoners holding, be compelled to the Charge of the Other. No Assignee is further chargeable by the Law, than he is Terretenant: The Assignee of himself is no privy, but an extraneous Person: And present Possession, and an actual Estate, 1. in these particular Lands, is it must make him liable, as Assetts 2. in general do the Heir.— But I would not herein be mistaken, for I take it, that lovel's Assigns have at present a Right in these Lands, though they have no Possession, and that in case they ever hereafter make use of this Right, they are the rightful Persons, that de Jure, aught to bear the Charge of these Works: And I could heartily wish it, that they would either undertake the One, or else wholly disclaim the Other. But this I say, that during their Outer from the Possession of these Lands, they are no ways under the Power of the Commission, so as to be enforced to this Charge:— For their Right to these Lands, is no other, than what they may 1. waive, and 2. disclaim. And it is only a conditional Right, depending upon the performance of such Works as are altogether in their choice, either 1. to do, or 2. to desert▪ If they do Recover, they may Re-enter; and then all that can be said of them, is, that if they do Re-enter upon their former Estate, they must also Re-imburse, and Recompense what hath been done, and laid out by others in their Default.  
But because some may imagine perhaps, that the Fen-Lands formerly in 
4. The Fen-Lands.  lovel's Possession, may be as yet liable to the Charge of these Works. 4. I will therefore in the Fourth place, say something as to them.— And I shall confess, that these Lands whilst they were in the Possession of 1. lovel, 2. his Heirs, or 3. Assigns, were chargeable; and that by express words in the Act of Parliament, he and they did hold the same subject to this Charge.  
But these Lands being before lovel's intermeddling, 1. clear, and unlyable, and 2. such as wherein the Persons chargeable to this particular Work under your Enquiry never had any Interest; Lovel neither 1. did, nor 2. could create a Charge thereupon, further than 1. as to his own Estate, and 2. whilst it was in his own Possession: His own Estate therein make subject he 1. might, and 2. did; but the Owners, and the Commoners, and their Rights therein, (as I have formerly spoken it upon another occasion from hence) he neither 1. did, nor 2. could, by any Act of his, damnify.— And therefore, you may observe it, the words in the Act of Parliament are, That Lovel, his Heirs, and Assigns, shall hold the said Lands subject to the Charge of these Works. Expressly signifying, that the said Lands were made subject to this Charge, whilst they were in 1. his, or 2. their holding, and no longer.  
And to clear this above all exception: Upon such neglect and default of Lovel, his Heirs, and Assigns, as in the said Laws is expressed, and accordingly certified, the Owners and Commoners may Re-enter upon these Lands, and them have and hold: Now I ask, How? The very words of the Law in this Point are clear and full; namely, as in their former Right, and as in their former Estate: But they, in their former Estate, were never chargeable to this Work; 'twas only Lovel undertook it: Nor now shall be upon their Reentry, in case Lovel desert or neglect it: 'Twas lovel's Charge 1. originally, and 2. only; none of theirs.  
But to put this Point a little higher: First, Suppose that lovel's Assigns 1. should wholly 1. waive their Right, and 2. desert these Works; and should never hereafter 1. Recover, or 2. Re-enter: certainly in this case the Lords and Commoners of these Lands shall not be charged with other Works than of their own proper maintenance, and shall not at all be charged with foreign Works, that belong to other Towns, only because Lovel (who had sometimes an Estate under limitation in these Lands, and that subject to Forfeiture too) of his own accord undertook them. Or Secondly, Suppose lovel's Assigns, during this their Outer, 1. should wholly disclaim their Right, or 2. that their Right should otherways be dis-annulled; and a new Composition should by the Lords, Owners, and Commoners of these Lands, be made with a new Undertaker; doubtless they might do it with respect to their own Interest only, and are no ways bound to treat Covenants therein, for the benefit of others, because Lovel admitted them.  
And now Gentlemen, To make some short Recapitulation of what I have hitherto spoken to this Point: Clear it is, First, That the Fen-Lands sometimes lovel's, while they are in the Commoners Possession, are not liable to this Charge. Clear it is, Secondly, That Lovel is dead and gone, and so norelief from him. Clear it is, Thirdly, That lovel's Heirs for want of Assetts are not in Law responsable. Clear it is, Fourthly, That lovel's Assigns are, during their Outer from the Possession of these Lands, not compellable. Now this Work being of such present and urgent Necessity, what further is to be done in it? and where is it for the present to be charged?  
Doubtless such Persons as were formerly charged with this work before lovel's time, are now, during his neglect and failer, to perform it: And there is the more Equity as to this particular Work; for that Lovel did freely, and of his own accord undertake this Work, without any Consideration whatsoever for it; and they upon whom this Work is chargeable, may in this respect only, well give Lovel, and his Assigns thanks, for freeing them so long from it for nothing. And for the better clearing of this, I shall, according to the Method I formerly propounded,  

2. How far other Persons, formerly liable, are discharged. Not absolutely:  2. In the second place, declare unto you, How far this Charge upon Lovel, his Heirs, and Assigns, shall operate, as to the Discharge of the Persons formerly liable: And I take it to be clear,  
That, as to the Persons formerly liable, there is 1. no absolute Discharge, 2. nor other Discharge at all, further 
But, ex re Facta, if Lovel do the Works.  than Lovel, his Heirs, and Assigns, ex re Factâ, by doing of the Work on their behalves, shall make the Discharge; that is, (to speak plainly) there is to them no Discharge at all, only a Covenant to them there is, on lovel's part, that he will discharge them: There are no such words, either in the Laws of Sewers, or in the Act of Parliament; nor no such sense can be put upon them, as that the Persons formerly liable, shall be discharged the Works: but only, that Lovel, his Heirs, and Assigns, shall do the Works; and that Lovel, his Heirs, and Assigns shall them thereof discharge, acquit, exonerate, and save harmless: 1. which if he do, it is well; and it is his Covenant that he shall do it: 2. but if he do not, the Persons formerly liable, may and aught, by the Court, upon his 
Upon lovel's neglect and failer, they may again be charged with them.  neglect and failer, be charged therewith; and they have their remedy otherwhere against Lovel, for not doing what he undertook to do.— And I take this to be very clear, if ever the case be as now it is; that is, 1. if the Work be a Work of 1. ancient, and 2. known Charge, as this is: and 2. if that Lovel, his Heirs, and Assigns, be none of them in a condition to be compelled thereunto; as we have formerly proved, that for the present they are not.— For certain it is, the Commissioners must not neglect these Works, because Lovel neglects them; neither must they suffer the Country to be lost and ruined for want of them, because Lovel, and his Heirs, are lost, and gone, and ruined in their Estates, and cannot do them; nor his Assigns compelled to do them.  
So Gentlemen, Out of my Discourse hitherto, I hope I have sufficiently demonstrated three things to you: The first is, that this Work is of present necessity, and must be done. The second is, that Lovel, his Heirs, and Assigns, are none of them in a condition; so as de Facto, to be compelled to do it. The third is, that during this their Failer, the Work is to be done, and for the present is to be done by such Persons as were formerly chargeable thereto. 
Who the Persons formerly liable to this particular Work are.  Now that I may close up this second part of my Discourse: 4. A fourth thing remains for you to Inquire of, that is, Who these Persons are that were formerly chargeable? This indeed is properly your work, but I shall crave leave, out of the ancient Records of this Court, to inform you something about it.  
I do find, by three ancient Inquisitions, remaining here amongst the Records of this Court: 1. the one without date, 2. the other Nono Edwardi Secundi, 3. the third Quarto Henrici Quinti, that the Charge of this River, from the beginning of Surfleet, (which hath been always accounted from Newbury) and so downwards to the Sea, 1. 
The Town of Surfleet.  hath, and 2. ought to be born by the Town of Surfleet. These three ancient Inquisitions, in express words, speak this Charge full and directly. 4. And the same Charge I find partly intimated likewise in a parcel of an old Inquisition, taken 17. Edwardi 2 di. here also preserved. 5. The same Charge I find again full and direct, in an Inquisition, taken 6 to. Edwardi 6ti. 6. And Lastly, By Laws and Orders of Sewers, Octavo Elizabethae, (the very Age Lovel begun his Work in) I do find, that consentient and pursuant to all the former Inquisitions, the same in like manner was again charged and ordered upon the Lords, Owners, Freeholders', & Inhabitants of Surfleet, as hath been accustomed. And lest there should be any quarrel or question about the ancient bound of the Sea, I do therein find the said River in express words (and I would have you take special notice of them) charged upon them of Surfleet, from Newbury, through Surfleet: to the Out-fall of the Water of Glean into the River of Welland; nothing can be more full or plain.— But because I would clear myself, so as to deal truly with you in this Point, and would not be suspected of partiality, or interest, I shall desire, that the Clerk of Sewers may read the Records themselves to you, here in open Court; and you, upon his reading, may examine these Copies of them, for your use and direction.  
Here the Clerk of Sewers read the Records, and the Foreman of the Jury examined the Copies of them then delivered.  
So Gentlemen, I hope you are all fully satisfied, as to the ancient Charge of this River, both 1. before, and 2. to lovel's time: You have had all the ancient Records that I know preserved in this Court, as concerning this particular, produced in the case; and they all sufficiently attest it, and they all agree in their testimony.  
Let not the several and different Names of this River trouble you.— Besides such Names 1. as it borroweth from the Towns through which it runs, as being sometimes called Pinchbeck River, sometimes Surfleet River, sometimes Basson River, or Basson-Ea, two other famous names it hath, and as I have been informed, from two great Springs from whence it ariseth; the one of Burne, from whence it is called Burne-Ea, and Burne-old-Ea: the other (which I shall no ways affirm, but as I have been by some told so only) of Glean, from whence it is called the River of Glean.— You see ancient Inquisitions have often the name of 1. Basson-Ea, a Town not far distant from us, nigh which it runneth; and of 2. Burne-old-Ea, as being the Spring nighest us in these parts, from whence a great branch of it ariseth, and so to us best known: But in lovel's Law, it hath only the name of the 3. River of Glean, under which name accordingly we give it to you in Charge; and which Name, for that very cause, I would desire you to use in your Verdict and Presentment. But certain it is, call it the River of Glean, Basson-Ea, Burne-Ea, or what other Name you please, that from the In-fall of Burne Water, (nigh the place where St. Nicholas his Cross, and Captain lovel's own House heretofore stood) and so downwards to the Sea, 'tis all but one and the same Channel; so that this difference of Names need not trouble you; for as to this part of the River under your Enquiry, they are all of them but several Names of the same River, imposed in respect 1. of the several Fountains from whence it ariseth, or 2. in respect of the several Towns through which it passeth; and in some Records one Name is used, in some another.— And having spoken this for the better understanding of the Records, I have altogether done with the second part of my Discourse, concerning the Persons upon whom this Work is to be charged.  

3. The Manner of the Charge.  And so I come to the third part of my Discourse, concerning the manner of this Charge, to wit, How it is 1. to be Imposed, 2. and Born.  
In the foregoing part of my Discourse, I have told you, that this River, from Newbury, to its Out-fall, is to be charged for the present upon the ancient Charge-bearers: But so,  

1. No more to be Imposed, but the ancient Charge of  1. First, As you lay no more but the ancient Charge upon them; For in case Lovel, or his Assigns, have any ways enlarged this River, they are not bound to maintain those Enlargements, but only its ancient Channel; and to ascertain this, you are to Inquire into the ancient proportion of this River; and what was formerly, and before lovel's time, its ancient depth and breadth: And to use few words, 'tis to 
6. Foot deep, 40. Foot wide, if the old Banks permit.  be 1. six Foot deep at the least, as appears by the Inquisition 6. Edwardi 6ti. and to be 2. forty▪ Foot wide, from Cate-Bridge, (a place near Basson) downwards to the Sea, if the old Banks will so permit; as appears by the Orders of Sewers 8. Elizabethae: And in the ancient Inquisition 17. Edwardi 2 di. a particular Reason is rendered, why it should be of this wideness, from the House as then of one Richard Cheyle, (probably standing either 1. about, or 2. above Newbury) downwards: Quià conveniens est, quòd cursus Aquae in suo exitu sit largior quam in suo introitu.  
2. And Secondly, The Owners and Inhabitants of the Town of Surfleet, out of my precedent Discourse, sufficiently appear to have been the ancient Charge-bearers, and upon whom the Work at present is to be charged: But the Records express no more, than in 
2. The Manner how that Charge was born to be Enquired after, whether by 1. Acridge or 2. Frontage, or 3. Agistment, or 4. Commonage.  general words, 1. a Charge only upon the Town of Surfleet, or a Charge 2. upon the Lords, Owners, Freeholders, or Inhabitants of Surfleet. Now I would have you Inquire into the ancient Manner of that Charge, and how it was formerly born, whether 1. by Acridge, 2. or by Frontage, 3. or by Agistment, 4. or by common Men-Works; doubtless, by one, or some of these ways it was born: And you are to inform the Court, 1. by which, and 2. how much of the same; by any of which in particular: so that the same ancient Charge may be imposed in the same manner it anciently was, and in no other. And so much concerning the grand Business of your Charge and Enquiry.  
Now if any of you ask, why no more 
Why no more of this River, but this part of it only put upon Enquiry,  of this River is put upon your Enquiry, than this part of it from Newbury to the Sea? I shall answer: First, That this part is in the greatest Decay. Secondly, That this part being in Decay, is of the greatest Mischief, and is the sole cause of most of the Mischiefs aforesaid. And Thirdly, That this part of it must first be repaired, as being the Out-fall to the rest; here the Work must of necessity be begun: And when this shall be effected, I doubt not, but, as some recompense of your labours, you shall see Glean, with very small repairs above, 1. an useful, 2. a commodious, 3. and a pleasant River again.  
And as it is your main Business to observe this River, and to Inquire into 1. the Defects of it, and 2. the Charge of it; so that 1. the Waters, 2. and Boats, may have a clear, and a free, and an interrupted Current and Passage in it again: So I would have you also take some notice of the great Bridge 
Surfleet Bridge.  that is over it at Surfleet; to two ends would I have you observe this Bridge: First, To cause the Water to pass under it again, as anciently it hath done, and as of right it ought. And Secondly, To cause safe Land-Passage over it again; and to that end to take notice of the 1. Ruins, or 2. other Decays thereof, and to Present them upon such Persons as aught to Repair them.  

The particular Inconveniencies upon Holland, and therein upon the two Towns of Pinchbeck and Spalding.  I have observed, that in all great Works and Undertake, both 1. the Contrivance of the Works themselves, and 2. the Mischiefs upon the Failer, have always fallen heavy upon this Country of Holland; and in a special manner upon the two Towns of Pinchbeck and Spalding. I may truly say, we have always been, In Parte Deteriori. 1. Whose Pastures have been cut asunder, mangled and spoilt, by the making of their drains, but ours? 2. Whose Grounds have been socked, by the running of their drains, but ours? 3. Whose Towns have been, yea at present are, over-flowed and drawned, by the breaking of their Banks, or by the miscarriage of their other Works, but ours? And upon Failer, 1. they of Kesteven can suffer no more than in the loss of their Commons; 2. 'tis we in Holland that do suffer in the loss of our Towns: They may suffer in their Fens, 'tis we that suffer in our Estates and Habitations.— So that both 1. the Work of Drayning, 2. and the Neglect of Drayning, though in different degrees, yet if in any thing, or any where mischievous, 'tis so to us here in Holland: And if any where in Holland, 'tis so to these two Towns of Spalding and Pinchbeck: For besides 1. the particular mischief, which always falls 1. first, and 2. heaviest upon these two Towns; and is now fallen upon them, to the utter ruin and undoing of many particular Persons and Families; and it may be, to the very desertion and desolation of the Towns themselves; three Parts of one of them is at this very instant depopulate and forsaken; both 1. Man, and 2. Beast, are fled and gone. 2. They must, I say, besides their suffering under it. be at all the Charge too for the remedy of it, or else it must rest upon them. Other Towns as rightfully concerned in Works of Sewers, for the removing of it as they, without a compelling Power, will do just nothing.— And doubtless, had other Towns (as rightfully concerned in the Charge as these) 1. born their equal share to such Works as have been done, 2. and had done such other Works as they ought to have done, these Towns had not been such a sad spectacle as now they are; nor in a such a sad, woeful, drowned condition, as now they are in.  
To conclude: 1. The great Mischief that now at present is upon these two Towns, and a great part of it 1. caused, or 2. continued at least, by reason of this Obstruction of the River of Glean in its Out-fall: 2. And the Persons at whose Charge it ought for the present to be removed, you have heard declared unto you at large; 'tis now put upon your Enquiry, what you will find. I doubt not, but you will well consider, 1. both the miserable and calamitous Condition of these Towns, 2. and the urgent Necessity of the Work; and that you will Present it upon such Persons, 1. as may be compelled to do it, and 2. during the failer and neglect of Lovel, of right aught to do it: No more is required of you, and I hope you will do no less.  
DIXI.   

The Petition occasioning the foregoing Charge of Sewers.  
To the Right Worshipful, the Commissioners of Sewers, for the County of Lincoln, and therein for these parts of Holland: The humble Petition of the Surveighour, Dikereenes, and other the Inhabitants of the Town of Pinchbeck, in the County and Parts aforesaid.  
SHOWETHS,  
THat whereas your Petitioners, and other the Inhabitants and Land-Owners within the Town of Pinchbeck, have for some years last passed, been at extraordinary Charges and Expenses, in and about the Repairing of a certain Sea-Goat, called Blew-Goat, and in Opening and Ditching divers drains, and other Works of Sewers, for the necessary Defence and Preservation of the said Towns: Yet so it is, 1. that all the said Works are, and will continue useless; 2. and great sums of Money thereabout expended, will be altogether lost; 3. and your Petitioners, and their Estates, and the whole Township of Pinchbeck, in daily danger of being destroyed and drowned; unless some speedy course be taken for the Ditching of the River of Glean, from Newbury, through the Township of Surfleet, to its Out-fall: for which whole space, it being within the County of Lincoln aforesaid, the said main River is so landed and silted up, that 1. your Petitioners can have no Out-fall thereby for their drains and Waters into the Sea, 2. nor Boats, and Navigable Vessels, their usual passage thereupon, as of right they ought, and have been accustomed to have; to the great and inestimable Damages 1. of your Petitioners, and 2. of the Commonwealth.  
In Consideration of the Premises, your Petitioners humbly pray, That this Court would be pleased to set some 1. speedy, and 2. effectual Order and Course, for the Ditching and Opening of so much of the said River.  
And forasmuch as the Heirs and Assigns of Lovel, Persons heretofore upon their Covenant liable to the Ditching of the said River, 1. have for many years last passed refused, and neglected to perform the same: 2. and for the present have not any thing in Possession, whereby they may be compelled thereunto: 3. and forasmuch as the speedy effecting of the said Work is of great Import & Necessity: 4. and the Fen-Lands heretofore in the Possession of Lovel, his Heirs, and Assigns, sometimes liable to the Charge thereof, are, since the Reentry of the Commoners, and other Owners thereinto, become, and during their holding of them, stand discharged of lovel's Covenant:  
Your Petitioners further pray,  
That 1. during this Intermission of Lovel, his Heirs, and Assigns; and 2. their Outer from the said Lands, the Court would be pleased to settle the Charge of so much of the said River upon such Persons, as anciently, before lovel's undertaking thereof, were, and of right are liable thereto: And to that purpose would be pleased to cause a Jury to Inquire thereof, and to do all such other and further Acts as shall be conducing thereunto.  
And your Petitioners, as in Duty bound, shall Pray, etc.  
FINIS.