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
by the Tenure of his house or lands bound to avoid the waters there needed no Prescription to have been alleaged Also in 5 H. 7. fol. 3. there is a like Presentment made 5 H. 7. against an Abbot Quod ipse predecessores sui ought to repair a gutter ratione tenurae terrar ' suar ' but because in that case the Presentment did not set forth where those Lands lay which were charged the Presentment for that cause was holden to be void So that there is a great difference between a Tenure charge and a charge imposed upon Land by Prescription For in the case where a Tenant holdeth his Land to repair a Bridge Wall or Bank of the Lord of the Fee The Lord in this case may distrain the Tenant of Common right by the Common Laws of England But where ones Land is charged by Prescription and Custom there is no remedy to force and compel the Tenant to do the repairs but by Presentment and upon a Presentment process may be awarded against him to distrain him to make the repairs And if upon a Presentment made by the Laws of Sewers I. S. is charged to repair a Sewer and a Distringas ad reparandum be awarded against him the Sheriff may distrain the party in any place within the power of the Commission of Sewers But this being a judicial Distress which issueth out of the Rolls the Justices are tied to the limits and bounds of the Commission Yet in 19 H. 6. fol. 7. the 19 H. 6. Case was That the Admiral of England hath jurisdiction in causes arising onely on the Seas and he hath no jurisdiction or power to meddle with any thing done upon the Land Yet upon a Presentment made in the Admiral Court one was Presented and Amerced and a Distress for this Amerciament was taken on the Land and exception was thereto taken that the Distress was taken out of the jurisdiction of that Court But there Newton chief Justice and the rest of the Iustices said That the power of the Admiral to hold plea was restrained by Statute to matters arising on the Seas but Executions were not so And I have further observed by the Book of 8. R. 2. Fitzher 8. R. 2. Avoury 253. that where no place is certainly prescribed to distrain in that in such a case the Distress may be taken in any place within the power and jurisdiction of the Court out of which the Writ or Warrant of Distress doth issue As if one be amerced in a Court Leet or in a Court Baron he may be distrained for these Amerciaments in any place within the jurisdiction of these Courts and for an Amerciament set and imposed in the Sheriffs Turn a Distress may be taken for it in any place of the county for so far the power of that Court doth extend it self But in the case of a sess rate or tax imposed by the Commissioners of Sewers a Distress for any of those may be taken in any place within the Realm of England for in this case the Distress is meerly grounded upon the Statute and is bounded by the same limits which is as large as the Realm of England And hereupon by this construction made in this legal maner all the words in the said clause of this Statute have their full operation And although in Rooks case the Distress was there taken on the ground charged yet that doth not prove but that a Distress might have been taken in any other place for I verily take it that the place where the distress was taken in that case was not intended any material point though in my succeeding argument for another purpose I shall make it one So that my opinion touching distresses to be taken in cases of Sewers appears to stand upon these three distinctions First that the Lord of whom the grounds be holden to make the repairs must distrain on the the grounds so holden and not elswhere Secondly that upon a Distringas ad reparandum or Amovendum upon a Presentment which issueth out of the Rolls of that Court and is a judicial process a Distress must thereupon be taken within the bounds of the Commission of Sewers Ex congruitate Thirdly a Distress for a rate or sesse or tax assessed and imposed by the Commissioners of Sewers may be taken in any part or place within the Realm of England for this is a Distress grounded upon the Statute and is as large as the extent thereof And so the difference appears where the Distress is guided by the Commission and where by the Statute Whose goods may be distrained IT comes now in turn to be handled whose goods may be distrained and taken within these Laws For the words of Distress be put so generally in this Statute that they must receive their exposition by the Rules of the Common Law in regard these Laws do give no special direction therein and therefore the Distress mentioned in Rooks case may in this place be questioned For there Carter was assessed but the goods of Rooks were distrained and taken for the said Assess and no challenge or exception was there made of it and no marvel for it was specially found that the goods were taken and distrained on the grounds charged for otherwise that Distress had been tortious wherein I take this diversity That where grounds are chargeable to repairs of defences and a Sess is thereon imposed by the Commissioners of Sewers the goods of a Stranger may be taken therefore on the grounds Sessed and this is warranted by Rooks Case But Rooks being a Stranger his goods could not in any sort have been taken for the Sess imposed upon Carter but on the grounds charged and the like Law for Rents and Services issuing out of Lands the goods of a Stranger Levant and Couchant on the grounds so holden may be distrained for Rents and Services by 7 H. 7. 2. and 11 H. 7. 4. 7 H. 7. 11 H. 7. But put the case a little further that in the Sessions Court of the Sewers A. B. is amerced for Non-payment of his Sesse towards the repairs of a work of Sewers and in this case I am of opinion that the proper goods of A. B. are to be distrained for this Amerciament and not the goods of a stranger going on his grounds charged to the said assess because this Amerciament is a collateral charge which falls on the person of the offendor who was to pay the Assels and doth not in any sort charge the grounds and this opinion hath warrant from the Case in 41 Ed. 3. fol. 26. Br. Leet 4. for there A. B. was amerced in a 41 Ed. 3. Court of Leet for receiving and keeping one in his house which was not sworn to the King in which Case it was holden that no goods could be distrained for this Amerciament but only the proper goods of the party amerced although the goods of others were Levant and Couchant on his ground And
what maner Repealing of Laws What grounds to be observed in Repealing of Laws How far the power of Commissioners extends therein The Readers Conclusion of all his Labors Lectura prima MY most worthy Fellows and Companions of this noble and renowned Society the Hour-glass of my puisne time is run and I am now come to take possession of your Readers place wherein I must hazard to your censures the fortunes of my inability These Twenty and six years compleat I have had continuance here and in that time I have only taken the measure and length of your Hall And herein I acknowledge Grayes-Inn to be the Patron of my best fortunes and your selves the best Companions of my forepast and present life I made a question when it came to my turn to reade Whether I should turn therefrom or not being then troubled about Two things Charge and Care both which I put into a pair of Scales wherein I thought Charge weighed heavy and solid for ibi ponebantur solidi Care notwithstanding had his equal weight with the other and poised the Scales even Yet I considered the small Substance I had got came by my Profession I therefore took my self both in Credit and Conscience bound to undertake this burthensome place for the maintenance and preservation of the honor of this house and with that I put Charge and Care in one Scale and Resolution in the other which scaled them both up Twenty years likewise of my last past time I have in the practise of my Profession spent but I hope little consumed thereof In which time I lanched forth my Ship In profundum maris for a Voyage to the Sea and now she is returned to your Shores furnish'd and ballist with Merchandize of several estimates By my Ship I mean my Statute which I read on which be the Laws of Sewers the Merchandize be the weighty matters therein contained By the Governors and Rulers of this Ship I mean the grave and prudent Commissioners who are put in charge and trust with the execution of these Laws By the Mariners I intend the Officers of this Law the Merchants place I reserve unto my self The Wares brought home be of divers sorts some only fit for the Imperial Majesty of a King and these be Royal Prerogatives shewing forth their splendor like the Flower de Lice in the Crown others belong to high Nobility and some be useful for the homely Commonalty the rest which shall remain I have cast under Hatches for my last days Mart when I mean to make chaffer on them all But though I seem to make these Markets of my Legal Merchandize yet I do not mean to set such Rates upon them as Merchants use to do which be all for utile dulce for I only set one price upon all which is your kinde acceptance Marvel not I pray you at these my Sea-like salutations for this day I am become god Neptunes Orator and I mean to display the power of his Empire for my Statute my Cases and my Argument will all depend upon the Element of Water over which as Poets feign Neptune hath chief predominance Well now my Ship is at shore and I have cast Anchor there and to my great comfort I see many Chapmen attending the Market and therefore now presently I will unlock and set open the closet of my Store which be contained in the fair Volumns of the Law and especially in that Law made and Enacted in the Parliament held in the 23. year of Hen. the 8. Chapt. 5. which is A general Act concerning the Commissioners of Sewers for all the Realm of England The causes wherefore I made choice to read upon this Law be five in number Viz. First For the Antiquity of these Laws of Sewers though this Statute bear date but 23. Henry 8. Secondly For the Largity and extent thereof which appears in the stile of this Statute and there termed A general Act for all the Realm of England Thirdly For the necessary use thereof which continual practise and daily experience teacheth us Fourthly I have had a more desire to read upon these Laws because never any Reader did heretofore undertake the same and upon perusal of this Statute and upon due consideration taken of others I thought I could not make my choice of a more fitting and more necessary Law nor more profitable for my Native Countrey of Lincolnshire and other Maritine places of this Kingdom then this is And Fifthly His Majesties general care which these Laws require at His hands and his special care by the which His Highness of late hath taken these Laws into His gracious and provident protection And upon due consideration taken of all these Cases I resolved to proceed in the Exposition of this Statute being made perpetual by the Statute of 3. Edward 6. cap. 8. And to speak something of the three first causes I am of Antiquity of these Laws Opinion for the Reasons and Authorities ensuing That the Laws of Sewers have been and be of great Antiquity and have told over as much time and as many years as any other Laws of this Realm have done For as Mr. Cambden in his Cambden Britannia saith Quod insula Britannia avida in mare omni ex parte se projecit Therefore this Realm adjoyning on every side upon the Sea could not be safe without those provident Laws made and used for the defence thereof And although it is said in Scripture That Almighty God In Manasses Prayer King of Judah hath bound the Seas by the word of his Commandment and had shut up the Deep and sealed it with his terrible and glorious Name yet God who bestowed wisedom on man it was his pleasure he should providently use it over the rest of the Creatures not giving way that he should be remiss or presumptuous in any thing which by his foresight or judgement might be prevented helped and relieved It is true that at the Flood Cum cateracta Coeli fuerint Genesis cap. 7. operta when the windows of Heaven were by Gods determinate will set open and that the Seas did Suum excedere modum no power of mans hand could stay the swallowing and devouring surges of the Seas and Waters yet then notwithstanding had God appointed that his Servant Noah and his Children and such Creatures as he appointed should be preserved by the Ark which was a work of their own hands Therefore the Laws of God and Nature have appointed man to make provision for the necessary defence and safety of himself and of his Countrey And the Laws of this Realm most of which have received their primam essentiam from the Divine Laws of the Almighty and have fetched their Pedigree from the Law of Nature have a principio bene so predominant in this Kingdom of England that they have never been wanting at any time to provide for the safety thereof And if the Register be so ancient a Book as Sir Edward Cook
Chancery 11. H. 8. Kelwayes R. of England was avoided because as the said books do affirm Man was not within the Realm of England but under the favor of these books that is no necessary cause to avoid that Office for in my Opinion the said Office of the Earl of Darby was void quia in Man breve Domini regis non Currebat and so in the county of Palatine of Chester breve Domini regis non Currit 161. tamen Committatus Cestriae est infra Regnum Angliae Mr. Cambden in his History de Insulis is Cambden of Opinion that Man was a Member of the Realm of England and therein he hath these words That Man is an Island scituate in the midway between England and Ireland Sed de qua utrique terrarum applicari de Jure debuerat ab antiquis non ambigebatur demum in hunc modum lis ista quievit quoniam advectos perculi Causa venemosos haec terra vermes admisit ergo Eam Britannis applicandum Censura Communis dictavit by which it may appear that the Isle of Man was within the Realm of England or at the least a member thereof But I do take the Isle of Wight Originally to be parcel of England and is a part of the County of Hampshire and was Wight as it were divorced from the continent as was Cecily from Italy the one as Poets feign was parted from the continent or main Land by an Earthquake the other as is imagined by the rage and violence of the Sea Insula vectis inquit Cambdenus in suis insultis Britannicis Fol. 707. est pars Commitatus Cambden 707. Hamtoniae à Continente Britanniae avulsa est ut Cohaesisse uvidebatur for many do imagine that it was torn from the main Land by the violence of waters as of late years parcel of the Spurnhead in Yorkshire which before did adhere to the continent was torn therefrom by the Sea and is now in the nature of Island Yet the same is within the Realm of England and remains parcel of Yorkshire and the like is said of the Island cald Silly scituate Many other ancient Islands there be which being in the English Seas be parcel of this Realm which I will pass over to avoid prolixity But in our Case a new Island is risen up in the English Seas to whom the same in point of property and ownership Nova Insula shall belong and what Laws the same shall be governed by comes now justly to be disputed of Justinian in his Institutes De rerum Divisione saith Quod insula in mari nata Justinian ut Delos est primi occupantis And Britton one of our ancient Britton 86. Writers in his book Titulo Purchase fol. 86. saith That if a new Island rise up in the Sea datur primo occupanti and agreeth fully with Justinian therein but saith he If it be taken or divorced from the continent then it continueth to the former owner but clearly our Law of England doth not agree with either of those Authors in the point of ownership For if as I have formerly delivered it the Sea in property possession and profit tam in aqua quam in solo belongs to the King in the right of His Crown of England as I take the Law clearly to be then it followeth as a consequent That the grounds which was the Kings when it was covered with waters is His also when the waters have left it For our Law admits not any thing either real or personal to go primo occupanti but when an owner cannot be found the Common Law gives it Domino Regi as Waifs Strays Wreck of the Sea Treasure found Escheated lands and such like so that my opinion is conceived in this that in point of ownership and property the said new Island is the Kings But yet I am likewise of opinion That a new Island risen from the bottom of the Sea although it be within the Realm yet it is neither within county Parish nor Town of this Realm till the King by his Edict or Proclamation have so declared it There may be Islands also within the Land compassed about with fresh Rivers as the Isle of Axholm in the county of Lincoln and Sheppey in the county of Kent and divers others But Mr. Bracton in his Book de acquirende rerum Bracton Liber 1. cap. 2. dominio doth very well deliver the Law concerning his new Islands which arise in great Rivers his words be these Habet etiam locum eadem species accessionis Insula nata in flumine quod si quidem medeam partem teneat Communis est eorum qui pro indiviso ab utraque parte fluminis prope ripam praedia possident pro modo latitudinis cujuscunque fundi que latitudo prope ripam sit que si alteri parti proximior sit eorum est tanta qui abea parte prope ripam praedia possident Si autem insula in Mari nata sit quod raro accidit occupantis fit Domini Regis non tamen credas proprium alicujus agrum informam insulae redact insulam esse ut ecce flumen dividatur in superiori parte circuit agrum alicujus demum infra in quo casu ejus erit ager cujus prius fuerat Cavendum quoque erit in metienda vicinitate insularum quia potest quis in hoc de facili decipi ponatur igitur punctus quod in medio inter utrumque agrum secundum hoc si insula Citra punctum sit vel hujus tant ' vel illius tant ' erit si autem sit citra punctum in ipso puncto ultra tunc proindiviso Communis erit ut tantam mihi de ipso insula cedat qua continentur in medietate puncti usque ad agrum meum Si autem insula rotunda inveniatur hoc observetur quod omnè quod propinquiùs est mihi cedat ita vicino cedat quod ei vicinius erit But whether the Laws of this Realm be of force in the said new sprung up Sea Islands or not is a question It appears in Calvins Case and in the Case of the Tanistry in the Irish Reports That if the King conquer an Island or Nation the same is no part of England nor the Laws of England there in force till the King shall so declare the same but the own proper Laws seem to be in force there but if the King conquer a Nation from an Infidel there the antient Laws of that Nation upon the conquest are extinct but the Law is not so of another Christian Region as Callis Callis Guyen Bulloign Ireland Guyen Bulloign and the like And although Ireland was under the obeysance of the King yet the Laws of England were not there in force till the King so declared the same And although Wales before the Reign of E. 1. was within the Fee of the King of England yet was it
high ways or streams as to erect Bridges or other Engines thereon without lawful Warrant Bridges in highways where there is no stream under but onely some petty Land stream at rain and wet seasons these be dry Bridges and be not within this Statute of Sewers but yet they be within the Statute of 22 H. 8. if they stand on highways In 14 Jacobi Regis it was found by inquisition taken at the city of Lincoln in the Guild-Hall there 14 Jac. before Sir Thomas Grantham Knight and my self and other Commissioners of the Sewers that the great Bridge at Bracebridge near the city of Lincoln and standing upon the River of Wytham thirty miles from the Sea was fallen into great decay whereby carts carriages men on horse-back could not pass over the same as in times past had been used in defect of Hen. Sapcots Esq who ought to repair a part thereof by reason of his Mannor of Bracebridge and of Bartholmew Gregge who by reason of his house standing at the Bridge foot called the Hermitage on the North side of the River ought to repair another part and of the Corporation of Lincoln who was to repair a part thereof and of the country of Moreland who used to repair another part And the same was decreed accordingly But Mr. Sapcot without cause finding himself grieved thereat preferred his Bill into the Exchequer Chamber against Sir Thomas Grantham and others to be relieved therein and did alleage That the same stood far from the sea pretending thereby that the Commissioners of Sewers had no power to deal with the same but at the hearing of the Cause in Anno 16. Jac. he was over-ruled in that and all other parts of this Suit A Calcey A Calcey or Calsway is a passage made by art of Earth Gravel Stones and such like on or over some high or Common way leading through surrounded grounds for the safe passage of the Kings liege people and these Calceys have always been expressed in the ancient Commissions of the Sewers in the Register Fitz. nat bre and in the Statute of 6 H. 6. cap 5. but not any Calceys be in these Laws but Register F. H. N. B. 6. H. 6. such as be over surrounded and low grounds as that of Barston Bank Southy Bank and such like but touching Calceys lying in Towns and Villages which be in the high uplandish Countries this Law doth not in any sort extend unto them but all Calceys leading over the said Bridges and near unto them are provided for by this Law yet no private Calceys are to be dealt withal by the said Commissioners Goats GOats be usual Engines erected and built with Percullesses and doors of timber stone or brick invented first in Lower Germany and after brought into England and used here by imitation and experience hath given so great approbation of them as they are now and that with good reason and cause inducing the same accounted the most useful instruments for draining the waters out of the Land into the Sea There is a twofold use made of them the one when fresh waters flows and descends upon the low grounds where these Engines are always placed and whereto all the channels where they stand have their currents and drains directed the same is let out by these into some creek of the Sea and if at some great floods the Seas break into the Lands the salt water usually have their returns through these back to the Sea Many of these Goats which are placed on highways serve also for Bridges This Goat is no such imaginary Engine as the Mills be which some rare wise men of late have invented but this Invention is warranted by experience the other is rejected as altogether chargeable and illusory Yet these Engines seems to me not to be very ancient here in this Kingdom for that I do not finde them mentioned in any of the ancient Cōmissions granted before this statute did express the same and surely this Statute was so curious in the special repetition of such defences in specie as it intended to defend and maintain that I am of Opinion it can scarce be drawn to extend to any other And therefore I do agree with the Opinion of Sir Edward Cook in his Case of the Isle of Ely that an artificial Mill and such like new invented Engines are not to be erected by the power of these Laws but being once erected and proved by experience to be beneficial to the publique State they may be continued and maintained by the authority of this Statute New defences HItherto I have proceeded onely in the handling and discoursing of the old and ancient defences which be helpful both to Sea and Land And therefore I am now desirous to enter into the argument of new defences being a matter very fit and apt to be disputed on And to give some warrant to my argument therein I have so composed my Case as both old and new be therein contained wherein the point will be shortly this Whether the new River and new Bank mentioned in my Case could be ordered to be made by the power and authority of these Laws And those which would take a part to argue on the contrary may alleage much matter and many reasons to make good their arguments first out of the words of the Law it self for thereby it seemeth that this Statute can bear no such exposition by reason the words thereof literally taken seem to extend onely to the old and ancient defences and not to the erecting of new And the words thereof in this point be these Forasmuch as the Walls Banks Ditches c. by the rage of the Seas and by the fresh waters descending be so lacerate dirupt and broken the Commission therefore doth authorize the Earls of Lincoln Rutland and Exeter Robert Lord Willoughby of Grimsthrop Sir William Welby Sir Thomas Grantham and Sir John Hatcher Knights whereof three to be of the Quorum to survey and amend the said Walls and Banks Ditches c. in all places necessary and the same as oft as need shall be to make new Upon these words of the Statute do those which argue against the new Defences infer That the Commissioners have not any power to cause new Banks new Walls or other defences to be erected and so take a difference between the words nova construere de novo construere the first extending to erect new ones where none were before and the other purporting the erecting of a new one where before an old one stood and the words which inforce this exposition be penned strongly to that purpose for first they have power to repair and amend What such Walls and Banks as were before and the same to build new which words The same literally taken must needs extend to such old fences as were before and the construction being so made excludes clearly the power to make new ones where none was before and this exposition may be exampled
in their Convocation house a Councel meerly consisting of the Clergy and then are confirmed in Parliament of which house also they are a Member And therefore in my opinion seeing Tythes are so sacred a duty that a Lay-man could not have any help for at the Common Law and were exempt from temporal and prophane uses I am therefore of opinion That they are not to be rated or taxed by the general words of these Laws Yet I am of opinion that Tythes in the hand of a Temporal or Lay-man are to be rated by these Laws for when they are come into his hands Tunc res spirituales fiunt temporales transeunt decimae in Catalla But I must here leave these Ecclesiastical persons and their Church livings There is another point of this Law will reach unto some of their possessions as to their Gleab Lands which belong to their Churches and their Meadow and Pasture grounds for these be not sacred as Tythes be But came to them by the benevolent gifts of Laymen and not ex duo dei evangelii as Tythes did and so they took that burthen with them from the Lay-donor which after may be imposed upon them And therefore such Parsons Vicars or other Spiritual persons which hold a plough Land in Culture are chargable by the Statute of 2 Mar. towards the repair of the highways as other Lay men be But in that Statute there be Ecclesiastical Officers used as Churchwardens whereby it was conceived that that Statute had an eye to bring Ecclesiastical persons within the reach of it And so for their houses and grounds I take them to be within these Laws of the Sewers for the own Lands are also chargeable thereunto and yet on earth within His Dominions He is said to be caput Ecclesiae and as much reason were it to exempt His possessions as theris if the respect of the person should bear any such sway in the Case Also I do finde by divers ancient Records That Abbeys Priories and other Spiritual possessions have been chargeable to the repair of Bridges Calceys Banks and High-ways by Custom and Prescription as appeareth also by the Books of 11 H. 4. fol. 82 83. and 44 Ed. 3. Fitz. 11 H 4. 44. E. 3. Title Bar. pl. 301. and I take it that by a very express and special Custom or Prescription a portion of Tythes in a Clergy mans hand may be charged with the the repairs of Bridges Ways Walls or Sea Banks but not without a direct affirmative Custom for I suppose that they may as well indure a charge in this kinde as a charge in a Modus decimandi And so I conclude this part of the Case That the person was not to be sessed for his Tythes by the general words of of this Law A Copyholder HEre is also a Copyholder taxed within my Case for his Copyhold Land and whether he for his Copy-hold and the Lord for the Freehold of that soil shall be assessed therefore is another question A Copyhold by the Custom of the Manor yieldeth and affordeth to the Lord Seigniory Rent Fines due upon admittances and such like duties but the Copyholder hath the real and visible profits of the soil therefore both Lord Copyholder receive Et commodum salvationem by the said defences And therefore the words of this Law be exceeding copious and full in this point of sesse viz. To inquire who hath and holdeth any Lands or Tenements or Common of pasture or fishing or hath or may have any hurt or damage or losse by any means in or near the said places and in this case the Lord holdeth the said Land in Tenure though not in Culture and many ways may have hurt and damage As if the Copyhold were overflowed by the Sea the Lord should lose his Freehold of the soil his Seigniory yearly Rents and Fines for admittances and all other perquesites So that the said words of this Stature beat mainly upon him But as there be reasons to be urged against him so there be matters to exempt him from this charge and to lay the burthen on the Copyholder First though he be Lord of the Copyhold yet he is seized of the Freehold thereof but in Imagination and construction of the Law for the Copyholder is pernor and taker of the visible and substantial profits Secondly the charge of repairs respect the possessioner in presenti which is easie to be found out and not imaginary owners as the Lord is And Thirdly if the Lord owner should both be charged pro una eademque re which the Law doth never permit for this is not like the Case of Lord and Commoner they there shall be charged the one for his Soil and the other for his Common for in this case the Lord is the immediate proprietor of the Soil and he hath the present and real occupation thereof as well as the Commoner hath the use of his Common and therefore they shall both be taxed to these repairs diversis tamen respectis But for the Copyholder it may be objected that he is not within this Statute for in Heidons Case in Sir Edward Hcidons Case Cooks 3 Report it is truly said That a Copyholder is not within the Laws and Statutes which alter the Service Tenure Interest of the Land or other thing in prejudice of the Lord and this is the cause that a Copyholders Lands cannot be extended or put in execution upon the Statute of Westminster the Second nor in extent upon the Statute of Acton Burnel and De mercatoribus for if they should then might the Sheriff make the Lord new Tenants without surrender and admittances which is contrary to Custom the life and essence of all Copyholds yet there is another good rule put in the said Case of Heidon that is That where a Statute is made for the general good and wealth of the Realm and that no prejudice can come to the Lord by alteration of Tenure Service Estate or Custom there Copyholds may well be within those Statutes Therefore now it is to be considered whether this Statute of Sewers will in any sort hurt or prejudice the Lord or no for it is certain that these Laws tend as much to the wealth and welfare of this Realm as any can do and in rating and assessing these Copyholds to the repairs of Banks Walls and Sewers c. it alters neither the Copyholders interest nor the Lords Tenure nor doth it in any sort prejudice the custom of the Manor But then it may be objected That if sesse be imposed upon a Copyholder for his Land and be not paid these Laws gives sale of Lands which indeed is the onely clause of this Statute which is material to exempt a Copyholder out of these Laws for clearly I take it That Commissioners of Sewers have no power to decree the Copyhold Land away for non-payment of the sesse Yet I am of opinion that a Copyholder though he be not within