Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	baron_n	knight_n	sir_n	7,313	5	7.6299	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A32252	The reading of that famous and learned genrleman, Robert Callis ... upon the statute of 23 H.8, Cap. 5, of Sewers, as it was delivered by him at Grays-Inn in August, 1622.	Callis, Robert, fl. 1634.	1647 (1647)	Wing C304; ESTC R23882	167,039	246

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Act and Ordinance heretofore made concerning the Premises in that Act recited not being contrary nor before then repealed should stand then in force But the said Judges did hold opinion that all the said Statutes stood unrepealed and acordingly made their Report to the Lords of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

heir from the said Ancestor which made the Covenant 28 29 H. 8. Dier fol. 33. Wherein I take this difference between a Covenant to binde an Heir and a Prescription for by Covenant the Heir shall be bound to the repairs if he have assets descended to him from that Ancestor but the Heir shall not be bound by prescription to repair though he have assets descended from his Ancestor who repaired the said defences But if Land be charged therewithal by Tenure or otherwise as a charge imposed upon Land by prescription then the said Lands are therewithal chargeable in cujuscunque manus devenerint quod nota It appears by the Statute of 43 El. cap. 4. That if Lands Rents Annuities Goods or Chattels be given towards 43 El. 4. the repairing of Bridges Ports Havens Calceys or Sea banks that the same shall be so imployed by that Statute So that Goods Chattels and Annuities be chargeable to these repairs by the force of that Statute as well as Lands Houses and Grounds in case any such thing shall happen to come before the Commissioners of Sewers But note besides all the former matter That an Heir shall not be bound by the Covenant of his Ancestor though he have assets descended unless he be bound expresly by the word Heirs in the Covenant Vsus rei I Now intend to declare where use shall tie one to the repairs of the defences mentioned in this Law I do not hereby mean that use which I have formerly mentioned in Prescription and Custom which is use to repair but the use I intend in this place is the use which one is to have of the defence or thing which is to be repaired As where one and his Ancestors have used to have the use of the River or waters by sailing up and down the same or have used to have a Ferry on or over them or a Staith to go up and down or a Crane to draw up waters or some other Engine to draw up the waters for the use of their houses These uses which men have of these things may be causes and considerations sufficient to tie them to the repairs of the Walls Banks and Rivers 37 lib. Assiz And for warrant in this learning is the Book of 37 lib. Assiz plac 10. for there were some persons which were bound to repair the River because they had passage on it with their boats and others were charged because they had free fishing in the River and in my opinion it stands with good reason and agreeable to Law That those persons before others should be bound and tied to the repairs of such things whereof they have peculiar and several profits and use of more then others have And it is manifest that this very Statute aims full at this point when it directed that such persons should be rated taxed and sessed towards the repairs which had profit of fishing and other commodities in the Rivers But least some may mistake my meaning and learning also in the said former Cases I will therefore make the same plain by distinction which is this That Frontage Ownership and this use I last spake of do not binde any to the repairing and maintaining of Walls Banks Bridges Sewers or other Defences when and where any other man or Corporation be bound to do the same by Prescription Custom Tenure or Covenant For the said three parts Frontage Ownership and Usus rei be but implicite ties onely in construction of Laws and serve the turn onely when no other person or persons are bound expresly thereunto and this distinction may be maintained by the Book of 8 H. 7. 8. H. 7. fol. 5. and other Books where it is said That he whose grounds is next adjoyning is bound to repair unless some other be bound to do the same by Tenure or Prescription Whereby it followeth that if one be bound to do the same by special Tenure or Prescription it freeth the Frontager Note also another difference that in cases where a Frontager and one who hath liberum passagium on the River and a man which hath a free Pischary there are not any one of them bound to make the repairs alone but all alike together and so is the Book of 37 Assiz plac 10. and I suppose the Book of 38 Assiz plac 15. maintains this point with me for there the Law is declared to be That he which 37 38 Assiz is bound by prescription to repair is bound peremptorily alone to do the work and not any other and if no such person can be found then the parties whose grounds do adjoyn and those which have free fishing in the River and free passage thereon be all of them to do and perform the same joyntly and no one of them is a discharge for the other because they shall be in consimili casu So by this which hath been said touching these matters the Commissioners may see and behold how carefully and understandingly the Laws of this Realm have indeavored to do equal Justice and my desire is that they would as carefully put them in execution A Township Assessed IT hath been held for a great question Whether a Township or Hundred in general might be assessed and taxed to the Sewers without imposing the same on particular persons And Sir Edward Cook in the Case of the Isle of Ely is of opinion directly That a Tax Rate or a Sesse Case of the Isle of Ely could not nay might not be set or imposed upon a Town or upon the Inhabitants of a Town for saith he The taxation sessment or charge ought to have these qualities It ought to be according to the quantity of their lands by number of Acres and Pearches or by the tenor of profit of fishing and Common of pasture which if it should be laid upon a Town it would hold none of those proportions and his opinion is not alone in this very point for in the ancient Charter of Rumney Marsh Rumney Marsh Case pag. 50. it is said Quod unusquisque proportione ac periculo incumbentium aequae contribuat And page 12 and 39 of the same Charter the Taxations is expressed to be Acres Perches and Carucates and our Statute in express wordsis And all those persons and every of them to tax and assess charge distrain and punish as well within the Limits Leets and Bounds of old time accustomed or otherwise or elswhere within this Realm of England after the quantities of their Lands Tenements and Rents and by the number of Acres and Perches and after the rate of every persons portion tenure or profit or after the quantity of their Common of pasture or fishing by such ways and means as you the Lord Fitz williams Sir Francis Vane and Sir Thomas Mounson Knight and Baronet Sir Edward Dimock Sir William Armin Sir Thomas Grantham Sir George Ftiz williams Knights Richard Totheby and Edward King Esquires whereof three to be of the Quorum shall

consequence and it doth also confirm the said two former Statutes of Ed. 3. and doth thereto also make additions in these insuing points First that Justices should be assigned to survey and keep the waters and great Rivers and to correct and amend the defaults as well by survey advice and and discretion as by inquest Secondly to survey the Weres Mills Stanks Stakes and Kiddels in old time made and levied before the time of Ed. the first and them which they should finde too much inhaunced or straitned to correct pull down and amend saving always a reasonable substance of Weres Mills Stanks Stakes and Kiddels so in old time made and levied Thirdly and if any such annoyances of Weres Mills Stanks Stakes and Kiddels of passages and straitning in old time made and levied be adjudged and awarded by the said Justices to be pulled down amended he that hath the Freehold of the same shall make thereof Execution at his own costs within half a year after notification thereof made upon pain of a Hundred Marks and he which shall relevy or inhaunce or straiten them against the said judgement shall forfeit One hundred Marks to the King to be paid into the Exchequer Fourthly and he which shall finde himself grieved by Execution or otherwise in this behalf against right and reason he may pursue and have right First by this Statute I collect these matters First if that a Were Mill Stank Stake or Kiddel be newly or of late years built and erected in any Streams without Warrant or lawful authority the same may be caused to be pulled down by Order of the Commissioners of Sewers at the costs of the party which erected the same Secondly If Weres Mills Stanks Stakes or Kiddels have stood and been time out of memory in Rivers or Streams and so have Warrant from Custom and Prescription these may not be cut up or pulled down by the Commissioners of Sewers because long use and Custom which is a Law of this Kingdom hath established them Thirdly If there have been Weres Mills Stanks Stakes or Kiddels time out of memory in Rivers or Streams which of late years have been inhaunced inlarged or otherwise exceeded the ancient size and accustomed compasse the excesse in those cases is only to be abated and pulled down but so far as the ancient Size did extend to is not to be impeached For the words of the said Statute be That there be reserved always the reasonable substance thereof in old times accustomed And in my opinion the generality of the said Statute of Magna Chart. cap. 23. is restrained by the succeeding Statutes if the exposition should have been as large as the letter is And these three distinctions do fully declare the true effect of the said preceding Statutes Then next in Order of time is the Statute of 4 H. 4. 4 H. 4. cap. 11. which reciteth That by Weres Stakes and Kiddels in the water of Thames and in other great Rivers through the Realm the common passage of Ships and Boats be disturbed and much people perished and also the yong fry of fish destroyed and against reason wasted and given to swine to eat Therefore this Statute Enacts That all former Statutes thereof made be holden kept and put in execution Here be two things which none of the former Statutes took order for The one is the perishing of the Kings people The other the destroying of the Fry of Fish which were occasioned by the erecting of these Weres Mills c. Yet these are businesses which are otherwise provided for and be not pertinent to these Laws of Sewers And therefore I shall passe them over without any other further explanation thereof The Statute of 12 H. 4. cap. 7. doth confirm all the said former Statutes made against Lets Impediments and Annoyances 12 H. 4. And doth further Enact That if contrary to the Award Rule or Judgement of the Commissioners made according to the Statute of 1 H. 4. it be found that any Weres Fishgarths Mills Mildams Locks Hebbingweres Stakes Kiddels Hecks or Floodgates be made levied inhaunced straitned or inlarged against the said Statute the offendors therein contrary to the aforesaid Award Rule and Judgement being warned by the Sheriff or under Sheriff of the County upon a Scire facias to that purpose directed where those annoyances be and within three Moneths after such garnishment do not wholly amend break down and avoid the said making levying and inhauncing straitning or inlarging That the party being defective in that behalf shall forfeit One hundred Marks to the King to be levied by Estreats out of the Exchequer and if the Offendor his Heirs Assignee or Assigns or any of them do defer or continue the same default contrary to the Award Rule and Judgement of the Commissioners he or they shall forfeit One hundred Marks the one moyety to the King the other moyety to the party that will sue for the same And also it was further enacted That if any person or persons other then such against whom such Award Rule or Judgement was made or any of them do presume to occupy or continue any of the Weres Fishgarths and Impediments aforesaid or other incumbrances he shall forfeit for every default for every Moneth One hundred Marks the one half to the King the other half to the party that will sue It appeareth that this Statute speaketh of Milldams Locks Hebbingweres Hecks and Floodgates which the other Statute never speaketh of so in extent thereof it hath more inlargement And in my opinion all the foresaid Statutes did extend only to Navigable Streams and Rivers with ships and Boats In the Tenth Report of Sir Edward Cook the case of Chester Mills upon the River of Dee was as insueth That a Causey or Milstank of stone in the River of Dee in the City of Chester was made and erected for the necessary maintenance of certain Mills some of the Kings others of the Subjects which stood at the end of the Causey were of late by the Decree of the Commissioners of Sewers Ordered That a breach therein of ten Roods or Pearches should be made which Causey or Milstank was by the agreement of all parties erected before the time of Edw. the first and so had continuance without any inhauncing or exaltation And whether this Decree was warranted by any of the said Statutes or not was the question which was referred by the Lords of the Counsel to the two Chief Justices Fleming and Cook and to Tanfield the Lord Cheif Baron to be considered on and the said Chief Justices and chief Baron declared their opinion That the said decree was not warranted by any of the said Statutes for they said that the two Statutes of 25 Ed. 3. 45 Ed. 3. extended but to such impediments as were set up and erected in the time of Ed. 1. and after and that the generality of the Statute of Mag. Char. cap. 23. was restrained by these two Statutes