And that the Statute of 1 H. 4. extended to such Weres Kiddels c. and other lets as were erected before the Raign of King Ed. the first and which have been inhanuced and exalted sithence and so was out of all those Laws because there was no such inhauncing And the Statute of 23 H. 8. which I now read on did not alter the former Statutes in these points But provided That all and every Statute Act and Ordinance heretofore made concerning the Premises in that Act recited not being contrary nor before then repealed should stand then in force But the said Judges did hold opinion that all the said Statutes stood unrepealed and acordingly made their Report to the Lords of the Councel There be many private Statutes made for the abating private Weres in some Streams which are not within my intent to recite further then by naming of them because I take it they are not confirmed by the Statute I read on As 11 H. 7. cap. 5. Southampton 14 H. 8. cap. 13. 23 H. 8. cap. 18. Havens 25 H. 8. cap. 7. for killing Fry of Salmons 27 H. 8. Rastal Havens 9 10 11. In 19 Jacobi Regis there was a great Cause depending in the Court of the Dutchy at Westminster between Benedict Hall Esquire Plaintiff and Iohn Mason George Worral and Thomas Powel Defendants which was in effect as followeth That Queen Mary was seized of the Manor of Monmouth with the Appurtenances in that County and of a Free fishing in the River of Wye and of a Were and a Fish yard there which were erected in the time of the said Queen in the place where an old Foundation of an ancient Were did stand This Were had been letten by the said Queen and also by Queen Elizabeth under the Seal of the said Dutchy by yearly Rents and so there were ancient presidents shewn in that Court whereby it appeared that the ancient Were there had been letten to Farm by the Earls and Dukes of Lancaster and by the Kings and Dukes for a long time for yearly Rents So that it was manifest that it was an ancient Were time out of memory And this Were and Fishyard and the Profits of Fishing were letten by the Kings Majesty that now is under the Seal of the Dutchy of Lancaster in the Tenth year of his Raign to one Iohn Abrahall Esquire for One and thirty years for and under the yearly Rent of Six pounds thirteen shillings and four pence payable to his Majesty his Heirs and Successors And the said Abrahal being so thereof possessed did afterwards in the Tenth year assign the same to one William Hall Esquire by reason whereof the said William Hall was thereof possessed and in the 12. year of this King made his last Will and Testament and did thereby ordain the complainant his Executor and after dyed by and after whose decease the Complainant came to be possessed of the said Lease and Term therein to come and in the Nineteenth Jacobi Regis the Commissioners of Sewers in those parts caused a Jury to be impanelled and sworn touching this Were Fishyard and gave therein a Verdict to this effect that is That Benedict Hall the complainant was possessed of the said Were called Monmouth Were upon the River of Wye which was excessive high and hurtful and was an impediment to the common passage of Boats Barks and Ballangers up and down the said River and by means thereof they could not passe but in great danger which if the said Were were not Boats of two or three Tuns might passe the River and that the said Were had been the death drowning of one of the Kings Subjects and is the cause of the scarcity dearness and want of Salmons and other fish within the said River by reason many of them were taken in gins of the said Were when they were out of season and that the same was a great abuse wrong enormity and annoyance to the whole Country Whereupon the said Commissioners made an Ordinance or Decree setting forth thereby in effect as followeth That whereas it did appear to them as well by the examination of Witnesses as by the said Verdict of the Jurors and by their view that the said Were was a great let and hinderance to the common passage of Boats and Ballangers up and down the River indangering of the lives of the Kings Subjects and to the destruction of Fish as the Salmons and Fry thereof They therefore Ordered That the said Were should be overthrown and that the Timber and Stone thereof should be removed whereby the Channel should be cleared for passage of Boats And accordingly did direct their Warrant under their Hands and Seals to the defendants Authorizing them thereby to overthrow the said Were which they performed accordingly And all this matter of the verdict of the Jury and Decree of the Commissioners were set forth at large in the Defendants answers and after examination and publication of witnesses the Cause came to be heard in the said Dutchy Court before Sir Humfrey May Knight Chancellor of the Dutchy Sir John Denham Knight one of his Highness Barons of the Exchequer an assistant to that Court and Sir Tho Chamber lain Knight one of the Kings Justices of his Bench another assistant of the said Court and Sir Edward Mosley Knight Attorney of the said Court who were of opinion That the said Were being an anclent Were by Prescription and Custom it ought not to have been overthrown by the Decree of the Commissioners of Sewers and that the said verdict of the Jurors was defective because though they presented the said Were to be over high and inhaunced yet in regard they did not present in quanto nor in qua parte the said Were was inhaunced above the ancient assize therefore they esteemed the said Verdict of no validity But now it comes next in time and turn to declare my opinion touching and concerning Bridges Mills Mil-Dams Milstanks Floodgates Hecks Locks and Hebbingweres which in the said Statutes be set forth for Lets Impediments and Annoyances wherein they are to receive their exposition according to the said cases of Weres without other distinctions for if they have had continuance time out of memory then are they the proper and peculiar inheritances of the King or of his Subjects allowed by ancient Custom confirmed by long use and to remain established without overthrowing or destroying But if they have been inhaunced or inlarged over their ancient and accustomed assize then the inlargement and excess is onely to be abated and no more for the Statute of 1 H. 4. saith That there must be left sufficient substance of the ancient And if any new Were Stank Stake Floodgate Kiddel or other thing have of late been erected on the Rivers which is an annoyance or hurtful then the same may be ordered by the Commissioners to be abated overthrown destroyed and pulled down because the same was erected without lawful warrant or authority And so as
give evil Language to Commissioners in Court or disturb the peace there or hinder the business of the Court in a Turbulent fashion he may be by them Fined or committed to Prison or both at the discretion of the Commissioners for by 34 H. 6. fol. 24. in every case when a man is fined he may be imprisoned and by 19 H. 6. fol. 67 in every case where one is Imprisoned he may be Fined and 34 H. 6. our Law in express words gives the Commissioners power 19 H. 6. to set fines and then by the opinion of the said Books ex consequenti they may Imprison If one oppose against a Law of Sewers not legally in questioning the same but refractory contemning thereof or by disswading persons assessed not to pay such or not to obey the Law I am of opinion that a person is both Fineable and Imprisonable and if this be done in facie Curiae it aggravates the contempt and this is the Rebelling which this Statute speaketh of If one do refuse to obey the Decree Rule Order of the Court especially if it be done in affront of the Commissioners when they be in execution of their Commission This is a contempt and he is to be imprisoned for such his disobedience and this agreeth with 37 H. 6. fol. 14. In Termino Pasche 12 Jac. in the Kings Bench the Case 37. H. 6. there was in debate between Hitley and Carier where certain 12 Jac. Commissioners of Sewers in the counties of Huntington and Northampton made a Law That certain Townships in those counties were assessed to a work of Sewers and one town was rated to Five pounds and because the same was not paid the Commissioners caused a Warrant to be directed to the said Carier to distrain for it and he distrained the cattel of Hetley one of the Inhabitants and Hetley brought an Action of Trespass in the Kings Bench against Carier and arrested him thereupon and upon complaint made to Sir Anthony Mildmay and Sir John Boyer Knights and other the Commissioners of Sewers they caused Hetley to be attached by their Warrant and committed him till he should release his Actions brought against Carier and until he should be delivered out of the Prison by Warrant to be granted by them But afterwards Hetley procured a Habeas corpus cum causa out of the Kings Bench and was removed where all the said matter appeared and thereupon Attachments were awarded against the said Commissioners and Sir John Boyer appearing was by Cook chief Justice Crook Dodderidg and Houghton Justices committed to the Kings Bench Prison and was fined Two hundred pounds but was after delivered Ex favore Regis sed non ex Rigore Legis And in my opinion The said Commissioners in this case in making a Warrant to attache Hetley and in imprisoning of him for the said causes did exceedingly erre and the rather because they took upon them to overrule the Justices of the Kings Bench being of a higher and greater authority then they were of But this is no president to impeach the power of the Commissioners of Sewers for committing persons offending their authorities to Prison if their proceedings therein be consonant to the Laws of this Realm but they were punished in this Case not for executing their power but for exceeding their limits and the bounds of their Commission If a Collector or Expenditor or other Officer of Sewers have been negligent in the execution of his Office and place he his fineable therefore though his offence be but neglect because he was an Officer and was also sworn to execute the same duly But I take it a neglect in another ordinary person is not to be punished And if one be rated to pay towards repairs and he neglect to pay the same at the days and times appointed he is not fineable therefore but is to be Amerced in this Case If a Collector or Officer of Sewers do distrain a man or do any other act contrary to an Inhibition of Sewers to him directed by the Commissioners of Sewers he may be fined and imprisoned simile factum fuit in 7 H. 4. fol. 33. 7 H. 4. If a Purpresture be committed in the Kings streams as in fixing Piles or Stakes therein or in stopping straitning or diverting the course of the waters from their ancient chanels or courses these offences being presented the offenders are fineable therefore if in the Presentment they be found to be done vi armis or be presented by the name of Purprestures for by 19 H. 6. fol. 8. if the offence be done 19 H. 6. with force and so presented then the offender is fineable Beechers Case but otherwise it is if the offence be not found but omitted for then an Amerciament is onely due And it is said in Dier 7 Eliz. fol. 240. That for a Purpresture one is fineable and a Purpresture may be committed in aquis Regiis as well 1 Eliz. fol. 240. as in viis Regiis by the opinion of Glanvil And in Keleways Report fol. 141. And a Purpresture is taken to be an offence done to the King imediately or to His possessions But if the like offence Purpresture be done to a Subject or to his Lands it is termed a Nusans Nusans The Abbot of Mellefont was fined for erecting a Were in the royal River of Boyne in Ireland which is expressed in the Irish Reports in the Case of the Royal Pischary of the Ban in Ireland and this was a Purpresture If one do refuse to accept an Office of Sewers being thereto duly elected by the Commissioners he is fineable therefore for in Greslies Case 8. Report One being elected Greslies Case and chosen Constable did refuse to take the Office and he was fined And if an Officer do misdemean himself in his Office he is fineable for in 10 H. 6. fol. 6. A Tythingman did refuse 10. H. 6. to make Presentment being thereto required and he was fined therefore So in case of the Sewers if one of the Jury or which is a Surveyor refuse to make Presentment when he is required by the Commissioners he is to be fined So if a Juror depart after he is sworn on the Jury or before he be sworn after his appearance be recorded he is to be fined And if an Expenditor or Collector Officers of Sewers be required by the Court to accompt for the moneys received and laid out by them and they refuse they may be punished by fines And if the Sheriff upon Writ or Warrant directed to him to return a Jury before the Commissioners and he make no return thereof nor doth not attend when he is required he is to be fined by the Commissioners Also an Officer of this Court is fineable for falsities done by him in his Office for these are a violation of his Oath and is a breach of that trust which the Court reposed in him at his election and entrance
cannot be imparted to another It is true that the personal view cannot be lent to another or divided from the person no more can the personal touch or act of my hand be imparted to another and yet express Livery which is the deed and act of the hand may be done per auter maine Sir Francis Englefields Case in the seventh Report of Sir 7. Reports Englefields Case Edward Cook gives us a pretty difference where the act to be done is unseparably tied to ones person and where not as in the Case of Thomas Duke of Norfolk where upon conveyance of divers Mannors to Philip Earl of Arundel his Son there was a Proviso That the Duke might revoke the same upon signifying of his minde under his own proper hand in writing c. This power of Revocation was not transferred to the Queen by the Attainder of the Duke because it was inseparably tied to his own proper hand But the principal Case there of Englefield where the Canc. in Combs Case Lands were setled upon his Kinsman with power That upon tender of a Ring by him he might revoke the uses and this was forfeit by his attainder and the Queen by a Letter of Attorney made to two did tender the Ring for this was not precisely or literally tied to Englefields person no more then payment of Money or such like And so in our Case though by the Law I take it that Livery within the view must be in the view of both the parties yet this may be done by Attorneys for as my own hand is not precisely tied by the Law to an express Livery no more is my own eye expresly tied to this view And we see in views in an Assize the under Sheriff or 36. H. 8. Dier the Sheriffs Bailiffs by his direction may make the view and yet the Writ is direct to the Sheriff to do the same Morse Penningtons Case and in those Cases an intellectual view will serve as if the Jurors know the Land but such an intellectual view will not serve in a Feoffment but there the view must be actual Yet I take this difference that if a Letter of Attorney be directed to A. B. to make Livery and Seisin he cannot do the same within the view for therein he doth not pursue his warrant but if the Letter of Attorney be special to give or take Livery within the view I am of Opinion then the Livery may in such a Case be given and taken by Attorneys within the view as well as in Combes Case in Sir Edwards Cooks 9. Report where it is affirmed that a surrender of a Copy-hold may be given and taken by Attorneys which is as personal as this is in the taking part because Fealty ought to be made Some things may in this Case be further aleaged in this third point which I now have in hand that is Who must make the Letter of Attorney on the Feoffees part whether the Lessee for years or he in the remainder or both of them For Lessee for years it is to be noted that his Estate hath not any perfection thereby and he seems himself but a Deputy and if so then a Deputy cannot make a Deputy but yet he is not meerly a Deputy for if there be two Lessees the Remainder in Fee to I. S. one of the Lessees may take the Livery and Seisin yet if a letter of Attorney be made to two joyntly one of them cannot take it and if in our Case the Lessee had dyed before entry the Livery might have been made to his Executors and powers and authorities cannot be apportioned and come to Executors in such maner Ergo It is more then a power of a Letter of Attorney for the reasons aforesaid and for these insuing For the Lessee for years cannot be prohibited from taking his Livery by the Lessor but a Letter of Attorney may be countermanded yet the Lessee alone cannot make this Letter of Attorney neither can he in the remainder make the same because he could not himself accept of the present Livery neither can he meddle with the present possession which a Livery and Scisin yields But I am of Opinion That Lessee for years and he in remainder must joyn in the Letter of Attorney for these Reasons First they were both one party to the Deed so ought they to be to the Letter of Attorney which is to give life thereunto Secondly they be but in Law one Tenant Thirdly they should joyn in Advoury And in many Cases the Lessee shall have ayd of him in remainder for the privity between their Estates and although the Lessee gets no Estate by the Livery yet he assists himself thereby with the ayd and strength of him in the remainder and the Livery goes through his Estate and so passeth into the remainder Therefore my conclusion is that they shall joyn in this Letter of Attorney and hereby I suppose I have conveyed a good Estate in the maner to I. S. in the remainder to maintain my position for him in the end of my Case and here I end my three Common Law points and now am come to the Statute The Readers Argument upon the Statute and Commission The Sea within the Realm of England FIrst touching our Mare Anglicum in whom the interest therein is and by what Law the Government thereof is is a fit question and worth the handling And in my Argument therein I hope to make it manifest by many proofs and precidents of great worth and esteem that the King hath therein these powers and properties videlicet 1. Imperium Regale 2. Potestatem legalem 3. Proprietatem tam soli quam aquae 4. Possessionem Proficuum tam Reale quam Personale And all these he hath by the Common Laws of England in the 6. R. 2. Fitz. Prot. 46. it is said That the Sea is within 6. R. 2. the Legiance of the King as of his Crown of England This proves that on the Seas the King hath Dominationem Imperium ut Rex Angliae and this by the Common Law of England The Charter of the Admiral of England hath these words Admirals Charter in it Quod habeat potestatem in causis maritimis ac omnia bona waviata Flotsan Ietsan Lagan ac omnia bona Mercimonia catalla in mare depordita seu extra mare projecta ac omnia singula casualia tam in vel super mare vel littora crecas vel coster as maris quam in vel super aquas dulces portus flumina rivos aut alios locos superinundatos quoscunque inter Fluxum refluxum maris ceu aquae ad plenitudinem à quibuscunque primis pontibus versus Mare per totum Regnum Angliae Imprimis this Charter is under the great Seal of England quod est Lex Angliae The King grants to the Admiral thereby power in Maritine Causes which proves the Kings legal power and jurisdiction on
or custome can fetch lands further then the low water-mark Grounds left But now what grounds shall be said a leaving by the Sea is a point in my Case also for it is certain that at spring-tides the Sea useth to overflow the Marshes in Lincolnshire and Norfolk and returneth within a short space again these being usual and annual be not accounted grounds left or gained from the sea so because the Marshes in Lincolnshire and the Sands in Lincolnshire be overflown every twelve hours and then dry again are not accounted grounds left or gained from the sea because the sea hath daily her recourse thereon and therefore in 15 and 16 Eliz. in Dier fo 326. 15. Eliz. Dyer 326. in the Case there was a quantity of ground was left by the Sea and whether the King or he whose grounds were adjoyning should have them was there made a question but in that Case there is an excellent president set down very apt for the handling of this point put in 43 E. 3. Contra 43. E. 3. Abbot'de Ramsey de quodam processu in Scacario facto versus dict' Abbot ad ostendendum quare Sexagint ' acrae marisci in manus dom ' Regis non debent sesiri quas predict ' Abbas appropriavit sibi domui suae sine licentia Regis super quandam presentation virtute cujusdam generalis Commission ' de terris à Rege detentis concelatis Abbas respondit quod ipse tenet maner ' de Brauncest quod scituatum est juxta mare et quod est ibid quidam mariscus qui aliquando per fluxum maris minoratur aliquando per de fluxum maris augetur absque hoc quod appropriavit sibi prout per presentation ' predic ' supponebatur And the Attorney of the King maintained the contrary and therupon the King and the Abbot were at an issue so by the Case I gather these matters First That if by little the Sea sometimes decrease and leave some parcel to the Land and some other times run over the same again this ground belongs not to the King for these be grounds whereto the subject may have a property as in the grounds of the shore but otherwise it is where great quantity of ground which had always been drowned before is left that belongs to the King Also by this president the Law was taken to be that these grounds left by the Sea to the Land were in the County of Norffolk whereto they did adjoyn and in my opinion within that Parish whereto they lay for there was a Presentment which was by a Jury of Nofolk and the Jury taken to try an Issue must be de viceneto ejusdem commitatus but note there the Presentment was by a Jury de Corpore Commitatus in 22. lib. Assis pl. 93. The Case was That 22. lib. Ass pl. 93. a River of water did run between two Lordships and the soil of one side together with the River of water did wholly belong to one of the said Lordships and the River by little and little did gather upon the soil of the other Lord but so slowly that if one had fixed his eye a whole day thereon together it could not be perceived by this petty and unperceivable increase the increasement was got to the owner of the River but if the River by a sudden and unusuall flood had gained hastily a great parcel of the other Lords ground he should not thereby have lost the same and so of petty and unperceivable increasements from the sea the King gains no property for De minimis non Curat Rex but put the case the sea overflow a field where divers mens gounds lye promiscuously and there continueth so long that the same is accounted parcel of the sea and then after many years the sea goes back and leaves the same but the grounds are so defaced as the bounds thereof be clean extinct and grown out of knowledge it may be the King shall have those grounds yet in Histories I finde that Nilus every year so overflows the grounds adjoyning that their bounds are defaced thereby yet they are able to set them out by the Art of Geometry These grounds in my Case which are left by the sea and The Prince count Palatine of Chester lye from the haven next to the shore are as I have formerly delivered it within the county Palatine of Chester and therefore whether the Prince or the King shall have them is now my question The Prince hath not only Jura Regalia but also Escheta Regalia within his said Palatinate and so in my opinion is not only owner of the county but Lord of the Prerogatives there and all Jurisdiction is to the Prince only a Writ of Error lieth in the Kings Bench of a Judgement there like an Appeal to Caesar then he is Lord of those Laws by which the Freehold and Inheritance of those lands be ruled wherefore then should not these lands belong to his Grace And first it is usual to have a Commission directed to enquire of these Lands ut de terris concelatis and this inquiry shall be by Commission if that Commission be to issue out of the county Palatine of Chester then the Lands would questionless fall to the Prince and the inquiry to be made of the Freeholders of the said county Palatine The Case put in Barkleys Case in the Comment of Mr. Plowden fo 129. doth force much against the Princes Title for there it is put that the Bishop of Durham had Liberties and Priviledges in Terris suis inter Fluvios de Tyne de Tese and afterward purchased moe Lands between these two Rivers the said Liberties and Priviledges shall not extend thereto and so if one have a Warren in his Lands in Dayle and he purchaseth other Lands there his Warren cannot be extended upon these new purchased Lands for saith the Book Things or Priviledges confined to certain Precincts or Dominions cannot be extended further though the Dominion be inlarged and that they shall not be inlarged with the inlargement but the County Palatine vested in the Prince is prescribed within no other bounds then the word County doth confine it and therefore this falling to be within the county should be properly his and as I am imformed the Prince hath special words therefore in his Charters if it were granted that these grounds could be claimed by Charters but I am clear of Opinion That no increase of the new left grounds can possibly become within the county of the city of Chester for the bounds thereof cannot extend over that circle which their Charter hath confined them to and so for the causes and reasons formerly declared I take it That the said Island is the Kings the ground left between the haven and the ancient shore belongs to the Prince as Earl of Chester and the shore because of the said prescription appertains to C. the Subject as parcel of the said Mannor and so
brought against some of their Officers and Ministers for executing their Decrees and Warrants Their Lordships finding in their wisdoms that it can neither stand with Law nor with common Sense or Reason that in a cause of so great consequent the Law can be so void of Providence as to restrain the Commissioners of Sewers from making new works to restrain the fury of the Waters aswel as to repair the old where necessity doth require it for the safety of the country or to cause a charge upon the Towns or Hundreds in general that are interessed in the benefit or loss without attending particular Survey or Admeasurement of Acres when the service is to have speedy and sudden execution or that a Commission of so high a nature and of so great use to the Commonwealth and evident necessity and of so ancient jurisdiction both before the Statute and since should want means of coertion for obedience to their Orders Warrants and Decrees when as the performance of them the preservation of many Thousands of His MAJESTIES Subjects Lives Goods and Lands doth depend It plainly appearing That it will be a direct frustrating and overthrow of the authority of the said Commission of Sewers if the Commissioners their Officers and Ministers should be subject to every Suit at the pleasure of the Delinquent in His Majesties Court of the Common Law and so to weary and discourage all men from doing their duties in that behalf For the Reason aforesaid and for the supreme Reason above all reasons which is the salvation of the Kings Land and People Their Lordships did Order That the persons formerly Committed by this Board for their contempt concerning this cause shall stand Committed until they release or sufficiently discharge such Actions Suits and Demands as they have brought at the Common Law against the Commissioners of Sewers or any the Ministers or Officers of the said Commission saving unto them nevertheless any Complaint or Suit for any Oppression or Grievance before the Court of Sewers or this Table if they receive not Justice at the Commissioners hands And their Lordships further Order That Letters from the Table shall be written to the Commissioners of Decrees of like nature when it should be found needful requiring incouraging and warranting them to proceed in the execution of their several Commissions according unto former practise and usuage Any late disturbance opposition or conceit of Law whereupon the said disturbance hath been grounded notwithstanding with admonition nevertheless That care be taken that there be no just cause of complaint given by any abuse of the said Commission Examinat ' per Edmunds Cleric ' Consilii Present at this Order making were 1. The Kings Majesty in Person 2. The Archbishop of Canterbury 3. L. Chancelor Elsmeare 4. L. Treasure Earl of Suffolk 5. L. Steward D. de Lenox 6. L. Admiral Howard Earl of Notingham 7. L. Chamberlain Earl of Pembroke 8. E. of Arundel Howard 9. Viscount Wallingford 10. Viscount Fenton 11. Andrews Bishop of Ely 12. Lord Wotton 13. Lord Cary. 14. Secretary Winwood 15. Secretary Lake 16. Sir Foulk Grevil Chancelor of the Exchequer 17. Master of the Rolls Cesar 18. Sir Francis Bacon Attorney-General All of them of the Privy-Councel This Order is in some points legal and may stand for a direction in matters of Law and the other parts thereof may stand for a president of State and it thereby plainly appeareth that the Kings learned Counsel were of Opinion That the said new works might be Ordered and Decreed to be done by the Commissioners of Sewers and that the same had warrant from former presidents But the last allegation on the contrary party is very forcible against this argument That by the making and erecting of these new Defences the inheritance of private persons are thereby prejudiced whereon they be built yet as Cato saith Vix ulla Lex fieri potest quae omnibus utilis sit sed si majori Cato parti proficiat sufficit and therefore this Objection I thus Answer That these new works are not to be undertaken but upon urgent necessity in defence of the countrey or for the safety thereof so that the Commonwealth be therein deeply interessed and ingaged and things which concern the Commonweal are of greater accompt in the Law then the interest of private persons And so it is 13 H. 8. fol. 16. That the Commonwealth 13. H. 8. shall be preferred before the private Estate and for the good of the Commonwealth a private person shall receive damage if otherwise it cannot be eschewed as a private mans house shall be pulled down if the next house thereto be on fire to save the Town and the Suburbs of a City may be pulled down in time of War to save the City and Bulwarks may be raised on private mens grounds for defence of the Realm And what greater enemy can there be then the Sea who threatens with his merciless waves to swallow up all before it but that the hand of the Almighty hath tied Pro ch 8. ver 27. and bound him in the fetters of his eternal decree and given policy and means to man to keep him from invading the Land by artificial works proper for such services Therefore in my Opinion by the very true intent and meaning of the said Statute and by a just equal and reasonable construction it should lie in the power of the Commissioners of Sewers upon just and urgent occasions and considerations to make Orders and Decrees for erecting and making of new Banks new Walls Goats Streams Sluces and other necessary Defences against the overflowing of the Sea For Ubi nova fit maris incursio ibi novum est apponendum remedium with this caution That under the pretence of the Commonweal a private mans welfare be not intended to the charge trouble and burthen of the countrey And with this also That where any mans particular interest and inheritance is prejudiced for the Commonwealths cause by any such new erected works That that part of the countrey be ordered to recompence the same which have good thereby according as is wisely and discreetly Ordered by two several Statutes the one made in Anno 27 Eliz. cap. 22. 27 El. c. 22. Rastal Havens and Rivers is where the Commissioners have power to compound and agree with the Lords and owners of the grounds through which the new cuts are to be made And the other 3 Jac. Reg. cap. for bringing the new stream 3 Jac. to London and although these Statutes hold not in the general Cases of Sewers but are applied to the said particular matters therein expressed yet they may serve as good Rules to direct our Commissioners to imitate upon like occasion happening The second Point upon this Statute It appeareth by my Case That the Commissioners of Sewers did decree a new Bank to be raised and a new River to be cast and an old Sewer to be repaired upon their view survey
dispose of them Fourthly the Commissioners have a Clerk proper to themselves to Register their Laws Fifthly the Commissioners have power to make Orders and Decrees which are Judgements in effect and some of them cannot be reversed but by Act of Parliament And lastly Writs of Error have been brought to reverse Judgement given in that Court For all which causes I do conclude That the Commissioners of Sewers have a Court of Record although it be not holden in aliquo loco certo So was the Kings Bench a Court of more Eminency then this But ubicunque fuerimus in Angliae and for express Authority in the point of Gregories Case in the 6 Report of Cook chief Justice that the Sewers is a Court of Record Imprisonment imposed by the Commissioners of Sewers IT is a point of high consequence whether Commissioners of Sewers have power by these Laws to Imprison the body of a man for any thing touching the same for that Imprisonment of the body seemeth to sway somewhat against the grand Charter of England and against the liberty of a free-born Subject and it is said in Bonhams case 28 H. 8. in Dyer that liberty is a thing which the Law much favoreth and I finde in our Books of Law That the Judges have been very careful and curious in not extending words contained in Charters to the Imprisonment of mens bodies unless they were express in the point And therefore in Clerks case in Sir Ed. Cooks 5 Report fol. 64. Clarks Case The case is That the Term was to be kept at St. Albans and the Major there and his brethren did assess every townsman towards erecting and building of the Courts of Justice and made an Order That he which should refuse to assist and pay should be imprisoned and one being Arrested and imprisoned brought his Action of false imprisonment against the Major who pleaded in effect That they were incorporate by King Edward 6. and had power granted to them in their Major of St. Albans Charters to make Ordinances by reason whereof they made the said Order and so justified the imprisonment But it was adjudged against the Major for that by the said Charter they had not any power to make an Ordinance to imprison a mans body for that were against the grand Charter in Magna Charta cap. 29. Quod nullus liber homo imprisonetur Magna Charta nisi per legem terrae But by that Book they might have inflicted a penalty and have distrained or brought an Action of Debt for it In Doctor Bonhams case in the 8. Report King Hen. 8. incorporated the Physitians of London and gave them power by Charter to examine the Imperites to finde out the defects Et pro delictis suis in non bene exequendo faciendo utendo illos per punitionem eorum delinquentium per fines amerciamentum imprisonomentum corporum suorum So hereby it appears that by the Kings Letters Patents they had power to imprison the Body but I finde their Charters confirmed by Act of Parliament Yet in 2 Eliz. Dier fol. 175. the Case is That the Queen did award a Commission directed to certain Commissioners to Hear and Determine the controversies betwixt Scrogs and Colshil touching the Office of the Exigenter and that if Scrogs should refuse to obey to make answer before them they should commit him to Prison but the validity of this last Commission I much doubt of I am of Opinion That the Commissioners of Bankrupts and charitable uses have no power to commit any man but if any abuse or misdemeanor be committed in contempt or derogation of their Authorities they may make Certificate thereof into the Chancery and refer the punishment thereof to the will and discretion of the Lord Chancelor or Lord Keeper for the time being In Godfreys Case in the 11 Report there is a discourse what Godfreys Case Courts have power to Imprison and which not and there it is said Some Courts may Fine but not Imprison as the Courts Leet and Sheriff turn some others could neither Fine nor Imprison as Courts Baron and County Courts and some could neither Fine Imprison nor Amerce as Ecclesiastical Courts And some may Imprison and not Fine as chief Constables at their Petty Sessions for an affray done in disturbance of them And other Courts there were which might Fine Imprison and Amerce as the eminent Courts of Westminster So that Imprisonment is not incident to every Court nor to every offence Yet I am of opinion that the Commissioners of Sewers may Imprison the body for it is not only a Court of Record but is authorized by Act of Parliament and I suppose that there be words in the Commission and Statute which will bear this construction which are as follow viz. And all such as ye shall finde negligent gainsaying or rebelling in the works reparation or reformation of the premises or negligent in the due execution of the Commissioners That ye Compel them by Distress Fines and Amerciaments and by other Punishments ways or means c. Which words are strong and large enough to authorize the Commissioners of Sewers upon just Cause to Imprison the body But here they are to be careful and not to think that they may Imprison Fine or Amerce in any case because the words be generally put together But this construction must be thereof made That they may Imprison where Imprisonment is due and Fine in cases Fineable and Amerce in cases Amerciable and Distrain where a Distress properly lyeth by the Rules of Law and they may not Imprison where by the Laws Imprisonment is not due but every one of the said punnishments is to be used in its proper kinde for these words promiscuously put together must be ordered by a just and legal construction according to the Rules of Law and Reason And I have known the words of a Statute generally and promiscuously put together have been marshalled according to their distributive operations as the Statute of 1 Rich. 3. which is That all Feoffments Gifts Grants Releases and Confirmations of Lands made by Cestui que use should be good Yet though these words were generally put together notwithstanding the wise and discreet Sages and Expositors of our Laws have so Marshalled the words of this Statute that they made construction thereof according to the Rules and reason of the Laws That is That Cestui que use in Possession might make a Feoffment and that Cestui que use in Reversion or Remainder might grant the Land and Cestui que use of a discontinued Estate might release or confirm and yet the words of this Statute were general howsoever Reason must be the Expositor that every thing be done in due form of Law and not in preposterous maner And these matters being thus passed over I shall endeavor my self to declare in what cases Commissioners of Sewers may Imprison Fine and Amerce and where not Imprisonment Fine and Amerciament Fines IF one
is not of sufficient power to supercede a Court of higher power Yet if one sue a Replevin which afterward in Bank was abated and a return of the Cattel there awarded another Replevin did lie by the opinion of the Book of 34 H. 6. fol. 37. and so it appeareth by the Statute of Westminster cap. 2. but these new Replevins came out of the 34 H. 6. said Courts where the former was for it is not likely that the Sheriff could make deliverance by his warrant of Cattel contrary to the award and return of a Court of Justice in a Retorno habendo and therefore by the same Statute of Secunda deliberatione is now to be awarded out of the Rolls of the Court whence the Retorno habendo came And if one would resemble this case with other authorities and with the reason of other Book cases of the Law it will be made thereby apparant that the higher Court may take or remove a cause out of the inferior Court but not Econtra neither can the inferior Court supersede the superior For if one be impleaded in the Kings Court at Westminster and in coming towards London he is arrested in a Corporation Court he may be delivered thence by the power of the superior Court to the which he was attendant the power of the inferior Court shall be superceded thereby as the Law is declared in divers of our Books By the which it is plain that ones person being in the priviledge and protection of the Kings Court could not justly be Imprisoned by the power of an inferior Court And in Stringfellows Case in 3 Ed. 6. Dier fol. 67. The goods of one were seized by the 3 Ed. 6. Sheriff by processe out of the Chancery for a Subject and after seisure and before delivery thereof was made a Writ of Prerogative came out of the Exchequer rehearsing thereby that the King was to be served before any other and command the Sheriff to levy the same on the goods of the same Debtor And whether these goods that lay under the power of a Processe in one Court might be taken from thence by the power of another Court was the question and the better opinion therein as I take it was that they could not for that by the former Processe they were priviledged from all other Jurisdictions Powers and Authorities especially if they were of an inferior degree Yet there be two cases which not being curiously looked into make shew as if the Law were otherwise the one is in the 11 H. 4. fol. 2. where the goods of I. S. were taken in Execution by the Sheriff by a fieri facias which came out of 11 H. 4. the Kings Court of Westminster and the Sheriff sold them to I. D. and there was a Replevin sued in that case but no deliverance made of the Cattel in Court and the other case is in 7 H. 4. fol. 28. goods were taken by a Levy which issued out of a Court Baron and they were sold by the 7 H. 4. Bailiff there was also a Replevin sued but no deliverance made of the Cattel in Court neither would the Court order the Defendant to gage deliverance so that by these two cases it may seem what a Replevin did lie though another Court had formerly the Jurisdiction of the Cattel taken by the Distresse But under favor I hope I shall easily reconcile these books and shall make it to appear that they do not make against my opinion formerly delivered upon this diversity That when the goods were seized or taken by Processe and remained by the vertue thereof in the hands of the Sheriff or of his Bailiffs during that time no Replevin did lie in the Case but after such time as the goods or cattel were sold away as in the said two Cases formerly alleaged they were then against the party that bought them or any other a Replevin did lie in the Case for after the sale they were out of the protection of the former parties and then a Replevin might well take hold of them being out of all other Jurisdiction And the same difference I take in this Case of the Sewers that is That so long as goods distrained by Warrant and Process out of this Court of Sewers remain in the custody thereof they be not replevisable by the Warrant of the Sheriff or of his Deputies but after they be sold away then by the sale thereof they are out of the protection and priviledge of the Court of Sewers and then the Sheriff may cause them to be delivered by Replevin Yet it may be objected unto me that in Rooks case a Replevin was taken against him which detained the distresse by Warrant of the Commissioners of Sewers it is true the Book is so which case I admit and that the Replevin was well granted there yet I take it it doth not contradict my said opinion because there Carter was assessed but the goods of Rooks were taken and detained for the Sesse and Rooks did sue the Replevin which he might well do because against him or his goods there was not any Law of Sewers extant or in force neither was he or his goods within the priviledge or jurisdiction of these Laws of Sewers But if Carters Cattel had been taken who was the very party sessed he could have had no Replevin from the Sheriff or his Deputies to deliver his Cattel But although a Replevin doth not lie in the case aforesaid from the Sheriff or his Deputies Ex officio to deliver a Distresse of Sewers yet out of the Kings Courts at Westminster a Replevin doth lie in those cases And the Charter of Romney Marsh pag. 18. doth afford us in this Ch Romney Marsh case a very good president for there complaint was made to the King setting forth thereby That whereas his Highnesse had appointed and authorized Henry de Bathonia to be his Justice and to determine the differences depending and touching the repairing of the defences of the said Marsh he had ordained that Distresses might be taken according to the 24. Jurators It a quod nullus vicecomes aut alius balivus noster intromittat in districtionibus illis tu tamen meaning the Sheriff of Kent nihilominus districtiones illas propter hoc factum per vigint quatuor Juratores in prejudicio considerationis eorundem reluxasti tibi igitur precipimus quod districtionibus illis in nullo te intromittas and in the same Charter the like matter is there also so determined of pag. 7. By the which may be collected that the Sheriff Ex officio might not meddle with such Distresses and in the same Charter pag. 8. the words be further Quod siquis de consideratione predict ' districtionis se injuste gravat ' sentiret inde conqueri vellet ad ipsum Dominum Regem querelam suam deferret ipse in Curia sua justiciam fieri facere reservasset whereby it is manifest that a Replevin lay
do not repeal the Statute of Mortmain in my opinion And herein I shall end my Argument touching decrees and I take it though the interest of E. was intail yet the sale thereof might be made by this Statute for the causes and reasons aforesaid And now only remains under my censure to declare my opinion whether the Commissioners of Sewers did Justice in refusing to admit of Pleas of discharge which were tendred to them by A. and E. wherein may come justly into our considerations these things viz. Whether Traverses Pleas of Exemptions and other legal proceedings may be had in this Court of Sewers or not saving I adde this that these decrees of sale being binding must be certified into the Chancery with the Kings Royal assent had thereto Legal proceedings Traverse TO enter into these parts of my Law I think it fit to begin with Traverse and to deliver my opinion whether such Pleas and Proceedings are to be admitted into this Court for a Traverse is a Plea of the party containing matter to the contrary of that that the party stands accused of or which is laid to his charge And in some cases our books and authorities of Law admit the party to a Traverse and in other cases the same is to be denyed for in the 5 H. 7. fol. 9. 45 Ed. 3. fol. 28 H. 8. in Dier fol. 13. if one be presented in a Leet Court for a Blowipe or any other personal 5 H. 7. 45 Ed. 3. 28 H. 8. wrong this Presentment is not Traversable but the party is without remedy therein though the Presentment be false and the matter of it untrue and the Law is so also of such a Presentment made in a Sheriffs Turn and herewithall agreeth the books of 2 R. 3. 11. and 19 H. 8. 11. 2 R. 3 19 H. 8. 5 H. 7. 8 Ed. 4. Fitz Assiz plac 442. and 8 Ed. 4. 5. and the reason thereof is delivered in 5 H. 7. because no Processe is there awardable against the party to call him to answer Yet in the same Book of 5 H. 7. it is said That if a Presentment be made which toucheth a mans Freehold he may there Traverse the same But I take it the party must first remove the Presentment into the Kings Bench and there Traverse it for in the Court Leet in my opinion there can be no Traverse taken or tryed no more where the Presentment toucheth Freehold then where it only concerneth a personal wrong Therefore the reason alleaged in 5 H. 7. cannot be the true cause wherefore in personal wrongs the Presentments cannot be traversed but the very true reason therein is as I take it because these petty Presentments be of such petty trifling matters that in avoidance of trouble the Law esteemed them not worthy of Traverse and Tryal and Justice Fairfax in 5 H. 7. is of opinion That a Presentment made before Iustices of Peace in a Sessions is traversable and with this agreeth Stanford fol. 183. and in other Courts of Law there oftentimes fall out matters which one shall not be admitted to take a Traverse unto and in some other cases he shall as by these succeeding authorities may appear In the 37 Assiz plac 7. a Presentment was taken before Green and Ingham Justices of the Kings Bench That I. S. who had killed A. had goods to the value of Eighty pounds in the hands of one John Lombard and upon this Presentment a Scire-facias was awarded against John Lombard to shew cause wherefore these goods should not be seized to the Kings use John Lombard came in and tendred a Plea to the Presentment that these goods were not the felons but that they were delivered to him to keep to the use of a Cardinal of Rome and he was there admitted to this Plea and with this agreeth 45 Ed. 3. fol. 26. expresly Yet in that book and Mr. Stanford fol. 185. it is holden for Law That if it be presented before a Coroner that I. S. killed A. B. and fled for the same fact and after upon his tryal he is acquit yet he shall forfeit his goods upon the Fugam fecit before the Coroner and he shall not be received to take any traverse to the said Presentment in that point The difference in which two cases is this in my opinion that a stranger as Iohn Lombard was in the the first Case shall not be peremptorily concluded for it were no reason one mans goods should be forfeited in another mans default and he should have no answer thereunto But in the other Case in Terror of Felons though he be acquitted of the Felony yet he is not acquitted of the flying and he may be guilty notwithstanding his acquittal There be other cases in the Law which admit no Traverse as in James Bags case Cook 11. Rep. James Bagâ— Case where a Writ was directed to the Major and Burgesses of Plymouth to restore Bag to his Aldermans place there which they had put him from and they return a cause sufficient to bar him which notwithstanding is false yet he shall not be received to his Traverse therein neither could a Traverse be admitted in the Certificate of the Bishop wherein was contained that I. A. Parson of Dle had refused to pay his dismes to the King by means whereof the Parson lost his benefice which case is in Br. cases temp He. 8. pl. 332. Br. Case 7 H. 4. 21 H. 7. and Dier fol. 116. and 7 H. 4. fol. 4. and 21 H. 7. 8. and many other Books be that no Averments shall be taken to the returns of Sheriffs to take any Issue thereupon And in Dr Bonhams case upon a Habeas corpus the Physitians returned the cause of his imprisonment which was false yet he could not be admitted to traverse the same But yet by the opinion of these Books an Action upon the case lieth against the Major and Aldermen against the Bishop for their certificates and against the Sheriff for their false returns and if Justifications be made by them they may be traversed But these will not reduce the parties to their former liberties viz not the Alderman to his place nor the Parson to his Church but damages in those cases are only recoverable These cases I have put as Reasons and Arguments against our Case of Sewers But yet I am of opinion that a Traverse may be taken to a Presentment made in this Court of Sewers and herein this Court may be resembled to a Sessions of the peace And this Commission of Sewers gives the Commissioners of Sewers power to hear to determine at the Kings suit as well as at the suit of the party and a Traverse lyeth of a Presentment found before Commissioners of Oyer and Terminer and is triable before them by the Books of 29 Assiz pl. 33. and 12. lib. Assiz 21. and 29 Assiz 12 Assiz pl. Com. the Earl of Leicesters Case in Plow Com. fol. 397. and