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
the charge for the erecting maintaining of the new ones are to be laid on the Level So that it behoveth Commissioners to be careful in these affairs else things in the conclusion may fall out contrary to their expectations for it is well said That Rerum progressus ostendunt multa quae in initio nec praecaveri aut praevideri possunt In making new Laws and Ordinanes these things are also considerable First what the matter of the Law is which is to be Enacted Secondly when the matter is known then to weigh it well whether if it be made if then it will prove necessary and behoofful for the good of the people and this necessary point is to be scanned by the counsel and advise of the most discreet and experienced persons and of the best tryed judgements in matters of this native And thirdly to consider what charge the work will cost for the which this Law must be made for in Scriptures he is not counted sapient that before he build a house will not first count the charge of it And fourthly what persons must bear this charge least it prove too burthensome and this must be directed by the ability of the people which are to be charged and by the the safety and commodity they are to have by the work I observe also that this Statute useth three words which are all powerful in signification and operation videlicet Laws Ordinances and Decrees and I think it fitting for me so near as I can both to deliver the definitions of them and the differences between them A Law A Law is properly a matter which hath taken his essence and power by a Custom time out of memory as the Common Laws have done Or else is a matter Acted and Enacted in Parliament by the King and the great Counsel of the Realm and by the Authority thereof for the ordering of mens Bodies Lands and Goods and such a Law is hereby intended because the Laws which the Commissioners shall make have the power of an Act of Parliament to strengthen and assist them and they are to receive life and perfection from this Statute I read on Ordinance AN Ordinance is a word having a more private and less powerful signification then the word Law hath for it is a Law but of a secundary power enacted by a Corporation Company or Commission proceeding meerly out of the Power and Prerogative of the King by Charter Grant or Commission warranting the same as those Corporations Societies and Companies which have power by Charters or Patents to make the same as is set forth in the cases of the City of London and of the Chamberlain of Londons Case in Sir Edward Cooks Reports Also Ordinances may be made by the power of a Court as in a Court Baron to make Orders or by the Inhabitants of a Town by Custom for the ordering of their Commons Repairing of their Churches and Highways And these are more properly by-Laws then Laws for a Law is either the Common Law Customary Law or an Act of Parliament all which are of greater force then any Laws made by these secundary means which of themselves are of little or no strength but as they are assisted by other primary powers Decree A Decree is neither a Law nor Ordinance in proper definition but is only a Sentence or Judgement in a Court of Justice delivered or declared by the Judges there by and through the power strength of a general former Law for Decretum est Sententia lata super Legem So that a Law is a general direction for a multitude An Ordinance is a subordinate direction proceeding out of a more general power And a Decree is a Sentence delivered for or against a particular person grounded upon the said Laws and Ordinances Continuance of Laws IT comes now fitly for me in turn and course to declare the continuance of these Laws Ordinances and Decrees for it is to be observed that some of them be but temporary though others perpetual The words in our Statute are That every Statute and Ordinance made before the Statute of 23 H. 8. concerning the things and matters therein mentioned as well in the time of H. 8. as of any of his Progenitors not being contrary to this Statute or heretofore repealed shall stand in force for ever and are commanded to be put in due Execution But this clause is intended of all Acts of Parliament made touching the Sewers and be not intended or meant of Laws and Ordinances made by the Commissioners of Sewers themselves Laws and Decrees made for sale of Lands by the Powers and Authorities of this Statute are to be made and ingrossed into Parchment and certified under the Seals of the Commissioners into the Chancery and the Kings Royal assent had thereto under the Privy Seal shall also stand good and effectual And all Laws and Ordinances written in parchment and indented and under the Seals of the Commissioners whereof the one part shall remain with the Clerk of the Sewers and the other part to remain in such places as the Commissioners should appoint notwithstanding the same be not certified into the Chancery nor the Kings Royal assent be had thereto shall continue in force till the same shall be altered 13 Eliz. cap. 9. repealed or made void by another Commission of Sewers although the former Commission by the which these Laws were made were determined by Supersedeas The Commission is to continue for ten years from the date thereof by force of the Statute of 13 Eliz. yet notwithstanding 13 El. all Laws and Ordinances which are written in parchment indented and sealed by the Commissioners of Sewers without certifying into the Chancery or the Kings Royal assent had thereto shall notwithstanding the determination of the Commission by the expiration of the said ten years continue in force for one whole year next insuing to be put in execution for that time by six Justices of the Peace whereof two to be of the Quorum but then the power of the Justices of the Peace is ceased by the corning of a new Commission of Sewers All other Laws and Ordinnces of Sewers which are but made and writ in paper or which be but in parchment and not Indented or which be indented also if not sealed continue in force no longer then that Commission continueth by the power whereof they were made And so by this short declaration I have made the Commissioners may the better observe how long time Laws and Ordinances of Sewers are to continue in force yet though they lose their vigor they may notwithstanding be revived by the power of a new Commission or remain for presidents for after ages to imitate Repealing of Laws IN this last place I intend to deliver my opinion what Laws Ordinances and Decrees may be repealed altered or made void by the Commissioners of Sewers Therefore it is first to be considered what grounds are to be observed in repealing or
constructions be not so much grounded upon the letter as upon the sence may in equal justice extend the sence to new making as wel as to renewing of defences for Mr. Bract. Bracton li. 1. Cap. 3. defineth equity to be Rerum convenientia quae in paribus causis paria desider at jura omnia bene coequiper at dicitur equitas quasi equalitas And if the grave and learned Judges have in private affairs introduced this equity to direct inlarge or diminish the letter of the Laws in the sence of construction as by many presidents we finde in Mr. Plow Com. in Hill and Granges Case fol. 178. and in many other authorities à forciori shall this Statute of 23 H. 8. be expounded Hill Granges Case with as much favorable equity as can be to inlarge the letter of the Law in the sence of construction because it tends so much to the advancement of the Commonwealth Et qui heret in littera heret in corticè And if the makers of the Law when this Statute was put into the frame had been demanded whether their meaning was to have it extended to the making of these new defences where either just occasion or necessity did inforce it they would have answered That they so intended it for the soul and life of the Law lieth in the sensible exposition thereof and not in the bare letter as Mr. Plow also fully demonstrates in his Com. in Easton and Studs Case And whereas it is formerly alleaged that the wariness of the Common Law was such in these Cases that it admitted not one such new Trench River or new cut to be made without the awarding out of the writ of Ad quod dam ' directed to the Escheator an Officer sworn to enquire first what damage it might be if such a new cut or drain were made and then upon his inquisition returned there might be one made if by the inquisition it were found convenient else not to be proceeded further in But in answer thereto being the argument set down in the said Case of the Isle of Ely I am of Opinion That there may be more wary and circumspect proceedings by this Commission then in the Ad quod damn ' by the Escheator for there be many Commissioners which be all sworn and in the Ad quod damn ' there is but one the Escheator plus vident oculi quam oculus tutius est rem ' committere pluribus quam uni and in my Opinion it is much better to commit this weighty business to many Commissioners of great gravity experince learning wisdom and integrity then to one Escheator who may perhaps want all those vertues And further whereas in the said Case of the Isle of Ely it is inferred or rather feared that by giving this power to the Commissioners of Sewers they may thereby stop up the havens of this Kingdom that fear is needles for I finde that neither by the letter nor the sence of these Laws any such exposition can be made either to the stopping up or hindring of their currents and passages But to proceed in my former discourse in making new defences I know that in the 43 and 44 Eliz. a great controversie did arise in the county of Lincoln about the building and erecting of two new Goats at 43 44 Eliz. Skirbeck and Langrate for the draining of the waters out of South Holland Fens into Boston Haven which work Sir Edward Dymock Knight did further what he might by the strength of himself and his friends and it was opposed by the Countrey of Kesteven and the very exception thereto taken was That the Commissioners of Sewers could not by the power of their Commission make a Law for the erecting of these new Goats where never any stood there before And that Case proceeded so far as the same came in the end before the two chief Justices Popham and Anderson who both delivered their opinions that the said new Goats if they were found to be profitable for the good and safety of the county might be erected by the power of this Statute but they then wished and advised that the Commissioners should be wary provident and circumspect to advise deliberately before hand that they by the opinion of experienced persons in those affairs the said new works should in all appearance seem to be profitable to the Common weal if they were effected that Commissioners should not in any sort make such devices at the suit prosecution and request of private persons for their private peculiar good who many times sought their own ends under pretence of the publike good And a like great controversie did arise in 12 Jac. in the counties of Cambridge Huntington and Northampton about the making of new cuts and drains in the Isle of Ely by the power of the Commissioners of Sewers which being much opposed the same came in the end to be heard before the King and Councel wherein this Order was conceived as followeth The Kings Councels Order HIs Majesties Attorney-General having according to an Order of this Board of the Thirteenth of October last called unto him the Kings learned Councel and taking Information of such Complaints as were first exhibited unto this Board touching sundry Suits and Vexations moved of late by certain obstinate and ill-disposed persons against His Majesties Commissioners of Sewers for the counties of Lincoln Huntington Northampton and Cambridge and their Officers and Ministers for executing the Orders and Decrees of the Commissioners to the manifest destruction and inundations of many large Levels and parts of the said counties And having by their Lordships like Directions upon advised consideration weighed and compared the said late and undue proceeding with ancient Laws of this Realm appearing in divers notable Records in the point now questioned with the continual and concurrent practise of ancient and later times and also the Opinions of the Lord Popham late Chief Justice delivered in writing very exactly and fully upon the said Questions touching the Power and Authority of the said Commission and thereupon making Report at large unto their Lordships this day in full Counsel of the whole state of the cause Forasmuch as thereby it appeared That these Inventions and Disturbances consist upon Four heads wherein the extent of the Commission was questioned upon pretext and conceit of Law First that the Commissioners of Sewers had not Authority to cause new Banks Drains or Sluces to be made where there had not been any before Secondly that they might not lay the Tax or Rate upon Hundreds Towns or Inhabitants thereof in general but upon the first Presentment or Judgement to charge every man in particular according to the quantity of his Land or Common Thirdly that they had not power sufficient to commit to prison persons refractory and disobedient to their Orders Warrants and Decrees And lastly that Actions of Trespass False Imprisonment and other Proces at the Common Law have been
brought against some of their Officers and Ministers for executing their Decrees and Warrants Their Lordships finding in their wisdoms that it can neither stand with Law nor with common Sense or Reason that in a cause of so great consequent the Law can be so void of Providence as to restrain the Commissioners of Sewers from making new works to restrain the fury of the Waters aswel as to repair the old where necessity doth require it for the safety of the country or to cause a charge upon the Towns or Hundreds in general that are interessed in the benefit or loss without attending particular Survey or Admeasurement of Acres when the service is to have speedy and sudden execution or that a Commission of so high a nature and of so great use to the Commonwealth and evident necessity and of so ancient jurisdiction both before the Statute and since should want means of 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
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
the words of this Statute are sufficient to yield the party the benefit of a Traverse if there be cause and for president in the point Chart. of Romney Marsh pag. 23 and 24. one Godfrey Ro. Marsh being presented that he ought to repair a Bank or Wall and that he did neglect to do the same and he came in and pleaded a Plea thereto before the said Commissioners and in 19 lib. Assiz plac 6. there were divers Presentments before Commissioners of Oyer and Terminer for Nusances done in the River of Lee and the same were there traversed and tryed And the Statute of 1 H. 4. cap. 12. 1 H. 4. doth plainly admit of a Traverse wherein the words be That in case if any feel himself greived by execution or otherwise against right and reason let him pursue and he shall have right But I verily suppose that those things which the Justices of Sewers do by their view or by survey and discretion are so binding as in those cases no Traverses are to be admitted because these things are meerly the acts of the Court and of the Justices themselves and if they Fine a man for his contempt in Court by a Record of their own view and not upon a Presentment the party shall not be received to Traverse this and in Doctor Bonhams Case it is said That the act of a Judge is not Traversable if he be the absolute Judge of the Cause But in cases done or certified by such as be no absolute Judges of the Cause as Commissioners of Bankrupts which certifie one a Bankrupt he may Traverse this in an action brought as was done in the Case of Cut and Delaber in 7 Jac. in the Cut and Delaber 7 Jac. common place and Vernies Case 1 Mar. Dier fol. 89. no Averment could be taken to the certificate of a Judge and with this agreeth 7 H. 7. fol. 4. 7 H. 7. But although a Traverse may be taken to a Presentment in the Court of Sewers yet times and seasons must be observed for if a Presentment be there made it may be Traversed for the reasons cause presidents formerly mentioned Yet if the cause have been there so far proceeded in as the Commissioners make a decree thereupon I take it then no Traverse at all can be taken because a decree is the final Judgement of the Court and is an act Judicial which cannot be traversed and tryed by a Jury for that were to refer the Judgement of the Court to be examined by a Jury which may not be admitted and at the Common Law after Judgement no Traverse can be taken And if one be Indicted at the general Session of the Peace this is traversable but if the party suffer himself to be Outlawed upon the said Indictment there no Traverse lieth but a Writ of Error So if in our Sessions of the Sewers the cause proceed to a decree the party grieved is to take his way by preferring a Bill of Reversal in maner as is done in the High Court of Chancery and so he may have the cause here throughly examined Other legal proceedings THe words of the Statute which give the legal proceedings be these viz. That the Commissioners of Sewers may hear and determine all and singular the Premises as well at our suit as at the suit of any other complaining before them after the Laws and Customs aforesaid or otherwise by any other ways or means these words give the party remedy to sue before the Justices of Sewers for such things as are contained within these Laws and which have their dependency thereon In Colshils case in Dier fol. 175. the party preferred his Colshils case Bill of complaint to the Commissioners containing the effect of his Title to the Office in question and these were special Commissioners of Oyer and Terminer Justices of the general Oyer and Terminer may hear and determine Usury by the Statute of 13 Eliz. cap. 8. yet if I. S. be bound 13 Eliz. in a Bond of Ten pounds principal debt and for Forty shillings for Interest although this Bond be for payment for usury yet an Action of Debt doth not lie thereupon before the said Commissioners but an information may be preferred against the lender there to punish him So by our Statute of Sewers an Action of Trespass lieth not for a Trespass done within the reach of this Commission yet Distinguendum est for put the case a sesse is laid upon a man and the goods of I. S. not chargeable thereto be taken and distrained who is not chargeable to the payment thereof I. S. in my opnion though this case have but the countenance of this Commission may have his Action or prefer his complaint before the Commissioners in this Court of Sewers for the recovery of his damages And although this be but a private Action yet the Distress being taken by an authority drawn from the power of this Commission the party distrained may have his remedy in this Court by his private Action because it sprung by the colour of the general power of this Court If A. B. have a several Pischary in the River of Witham which is a River within the Commission of Sewers and the said Pischary by these Laws is chargeable to the repairs thereof if C. D. disseiz him thereof or commit a Trespasse by Fishing therein A. B. can neither have an Assize nor Action of Trespasse within this Court So if a Royal or common River hath his current through the town of Dale and one A. B. is tyed to repair the Banks there by Tenure Prescription or otherwise which notwithstanding in his default are broken down and the waters breaking out overflow the grounds of C. D. thereto adjoyning yet C. D. hath not any remedy to recover his damages against A. B. in this Court for the losse of his grounds but he is put to his private Action therefore at the Common Law and with this agreeth the Case of Keighley But if A. B. be presented therefore before our Commissioners of Sewers they may order A. B. to repair the breach but cannot award damages to C. D. for our Commissioners of Sewers are herein like to Justices of Peace and to Stewards of Leets and Law-days which have power originally to meddle only with the publike wrong Yet by the power of their Commission and of this Statute they many times accidentally meet with private injuries as by the insuing cases may appear If a Township be assessed by a Law of Sewers and the goods of one of the Inhabitants be taken for the sesse that party upon his complaint to these Justices of Sewers may have processe out of this Court to call before them the rest of the Inhabitants which were subject to the said sess to cause them to contribute towards the parties damage who was solely distrained for them all for otherwise this Court should fail of justice in his own proper materials the Statute of 1
Disposition and of good Estate should be put into these Commissions of Sewers the Statute did make choice of four Honorable persons to have and take the nomination of such as should for their Integrity Learning Wealth Wisdom and Experience be worthy to be put into this Commission And therefore the Lord Chancellor Lord Treasurer and the two Lord chief Justices for the time being have by this Statute the nomination of our Commissioners But as these great persons of Honor by their high places are most commonly busied in matters of great importance they many times refer these matters to others by means whereof divers persons in some countreys have of late years crept into Commission which this Statute doth not allow of which do not only want knowledge and experience but which are also transported and carried away with selfwill and serve most commonly to make a faction of the greater number to carry away businesses when the graver and wiser sort are forced being overladen with popular voices to give way to run into contrary courses and are made to surcease from making good and wholsom Laws and Ordinances and sometimes are as it were forced to agree to those which are whose even as the Roman Dictator Fabius having joyned to him the froward Minutius was by the violent stream of his colleague so crossed and overswayed not out of judgement but selfwill that he was forced to give way to Minutius frowardness though it tended almost to the hazard and the overthrow of the whole Roman Army And because the Commissioners are the persons through whose hands the execution of all these Laws must passe I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them And I intend to purge the Commission of such of them as these Laws have disalowed and to that purpose I have framed this insuing case which I take it will give us occasion to call them all into question and to sever the just from the unjust the sufficient from the unsufficient and the learned from the illiterate The Case A. demiseth to B. and C. Land of the yearly value of Sixty pounds cum stauro of the value of Two hundred pounds for their lives the Remainder to D. a free Citizen of Lincoln B. and D. disseise C. of the Land and take the stock C. releaseth to D. the goods absolutely and the Land upon Condition D. dieth in Exile E. his son and heir enters B. and C. who enter for the Condition broken E and Francis Countes Dowager of Warwick and three other Commissioners of the Quorum of Sewers make a Law to raise a Were erected upon a River navigable at the costs of the party because it hindred the current of waters My conclusion is That here be competent Commissioners in number and in Estate which made this Law and that this Law is well decreed within this Statute The case I do distribute in these points viz. Three at the Common Law and four upon this Statute the points I intend by the Common Law are these First whether the Sixty pounds stock can be demised and letten for life with the Remainder over as this case is Secondly whereas B. and C. be two Joyntenants in possession whether one of the Joyntenants and a stranger can so disseise the other Ioyntenant as to transfer thereby an interest and Estate to the stranger Thirdly because the Release dependeth upon the disseisin the question is in what maner it doth inure and whether it shall expel B. out of that moyety because it is made to the stranger and then what is reduced by the Condition whether a possession action or a right Points upon this Statute First whether the Son of the free Citizen exiled is a disabled Commissioner in respect of his person and whether he hath such an Estate either in Lands or goods as will satisfie this Law Secondly whether the Countess may be a competent Commissioner within this Statute Thirdly whether a joynt interest in Lands or goods will make the Ioyntenant a sufficient inabled Commissioner within this Statute Fourthly whether the Were as this case is be raced down or not And hereupon I intend to lay open the whole division touching the Lets Impediments and Annoyances which this Statute speaketh of Argumentum Lectoris I meant it not for a point in this case whether goods might be let with Land nor whether a stock might be leased with a Farm because I finde the Books of 1 H. 6. 1. and many others full in the point that they may And although by the taking of them back again by the Lessor they will thereby suspend no rent yet in the original demise they may be a cause to increase the rent but my point herein is double First whether they will passe in Remainder as my case doth limit them Secondly whether they will inable B. and C. to be Commissioners of Sewers alowed by this Statute I do not onely finde stock let with Farms but also joyned in Real actions with Land for in the Writ of Assize the words be Quod vicecomes faciat Tenement ' illud reseisiri de catallis quae in ipso capta fuerint ipsum Tenement ' cum catallis esse in pace usque c. These doubtless were such goods as stocked the grounds and which usually went with the same for in ancient times when any farmed grounds they usually farmed the stock thereon going and this appears by ancient presidents Sed nunc aliud tempus In the Writ of Ejectione firmae in the Register be contained these words Ostensum quare vi armis manerium de Dale quod C. prefat ' A. dimisit ad terminum qui nondum preteriit intravit bona catalla ejusdem A. ad valentiam c. in eodem manerio inventa caepit asportavit So that in those Writs of Assize and Exjectione firmae the one to recover the Freehold the other the Leasehold We finde goods which went with the Manor or Farm made parcel of the plaint and I take it damages shall be increased therefore for these were such goods as stockt the Farms And in Wrotsly and Adams Case in Plo. Com. Exception was Wrotsley and Adams Case taken in abatement of the Writ because the words bona Catalla were left out of the same Yet in my opinion no estate neither in presenti nor in remainder can be made of Goods or Cattel neither shall they go with the Land in point of Estate but shall passe to the Lessee and after to him in the remainder as a dependancy upon the Farm And the Heir shall have Heir-looms together with the Mansion House as things necessary concurrent therewithal yet the Heir-looms have no descending qualities but they do go with and wait upon the house as necessary Instruments fitting to be used therewith neither can it be gathered by the Book of 37 H. 6. fol. 30. that the Book called The Grail which
Gen. cap. 1. of all other creatures being finished the Heavens adorned and the Earth replenished God said Let us make man in our own Image after our likeness and let him have Dominion over the fish of the Sea and over all the Earth and every creeping thing that creepeth upon the Earth So God Created man in his own Image in the Image of God Created he him Male and Female Created he them and said unto them Be fruitful and multiply and replenish the earth and subdue it and have Dominion over the fish of the Sea and over the foul of Heaven and over every living thing that moveth upon the earth This was the first Commission that ever was granted and it passed under the Divine immediate Seal of the Almighty extended over the whole world and by the vertue of the word Dominamini in the Plural number God coupled the woman in Commission with the man But in the 18 Chapter of Exodus Verse 21. Jethro adviseth and counselleth Exodus 18. Moses his Son in law to provide out of all the people men of truth hating covetousness and place such over them to be Rulers of Thousands Rulers of Hundreds and over Fifties Tens where by the word Men twice repeated by Jethro and this place of Scripture seemed to exclude wholly from Government and the former Commission extended over Fishes Birds and Beasts and neither over men nor women And in the first of the Corinthians Chapter 14. it is said by Saint Paul Let the women keep silence in the Churches for it is not permitted to them 1 Cor. 14. to speak And in Grendons Case in the Comment fol. 497. Dyer saith That women could not administer the Sacraments nor were they permitted to say Divine Service And in the second Chapter of Timothy Verse 12. he saith We suffer not the woman 2 Tim. to rule over the man but this last of Timothy may be most aptly applyed to husband and wife I remember out of the Abbey Book of Evesham this Note worthy of observation Quod Alicia Peeres Regis miniona supra modum mulierum nimis supergressa sui etiam sexus fragilitatis feminiae Immemor nunc Justiciarios Regis nunc in foro ecclesiastico juxta doctores sedendo pro defensione causarum suadere etiam contra jus postulare minime verebatur unde propter scandalum petierunt à rege in Parliament ' tent ' An. 50. Ed. 3. penitùs amoveri but hereby I collect that she was not in Commission with the Judges Temporal or Spiritual but was a favorite of the Kings and took upon her to intermeddle in businesses nothing concerning her But whether the Text meant it for a woman to sit Judge in a Court of Justice was contra modum mulierum or because she sate there to wrest righteous Judgement I refer to the readers of that History For Debora was Judge of Israel and Judged the people as the fourth of Judges hath it Dyer indeed saith in Grendons Case That divers Churches were appropriated to Prioresses and Nanneries whereof women were the Governesses whereby and by the said Chapter of the Corinthians it appears that women might be admitted to have Rule and Government over the possessions and persons Temporal and Ecclesiastical but were not admitted to have curam animarum nor to meddle with the administration of the Service or Sacraments And for Temporal Governments I have observed women to have from time to time been admitted to the highest places For in ancient Roman Histories I finde Endochia and Theodora admitted at several times into the sole Government of the Empire and here in England our late famous Queen Elizabeth whose Government was most renowned And Semiramis governed Syria and the Queen of the South which came to visit Solomon for any thing that appears to the contrary was a sole Queen And to fall a degree lower we have presidents that King Richard the first and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regents of this Realm in their absence in France And the wise and renowned Lady Margaret Countess of Richmond was put in Commission and Humfrey de Bohune Earl of Hereford was by Tenure Constable of England which is a Judge in Martial affairs and he died without issue Male by reason whereof the Office amongst other things descended to his two Daughters and Co-heirs And in the 12 of Elizabeth in Dier it is holden for Law That although this was an Office of Justice yet they might execute the same by deputy for in truth women were unfit Martialists to judge of matters of that nature and yet it is clear a deputy doth nothing in his own name but in the name of his Master or Mistriss therefore the Martial Court was to be kept in their names But yet I will descend a step lower doth not our Law Temporal and Spiritual admit of women to be Executrixes and Administratrixes and hereby they have the rule or ordering of great Estates and many times they are Gardianesses in Chivalry and have thereby also the government of many great Heirs in the Kingdom and of their Estates And in 10 H. 7. a man devised his Lands to be sold by a 10 H. 7 woman and died and she sold the same to her husband So by these Cases it appeareth that the Common Law of this Kingdom submitted and committed many things to their government yet the Statute of Justices of the Peace is like to Jethroes counsel to Moses for there they speak of men to be Justices and seemeth thereby to exclude women But our Statute of Sewers is Commission of Sewers shall be granted by the King to such person and persons as the said Lords should appoint So the words persons stands indifferently for either Sex And therefore although by the weakness of their Sex they are unfit to travel and they be for the most part uncapable of learning to direct in matters of Judicature for which causes they have been discreetly spared yet I am of opinion for the authorities reasons and causes aforesaid that this honorable Countess being put into Commission of the Sewers the same is warrantable by the Law and the Ordinances and Decrees of Sewers made by her and the other Commissioners of Sewers are not to be impeached for that cause of her Sex And I conclude here that although in discretion women have been secluded as unfit yet they are not in Law to be excluded as uncapable If an Infant above the age of Fourteen and under the age of One and twenty be made a Commissioner his infancy shall be no cause to disable the Laws made by him yong Daniel was Judge over both the Elders And in Little Brook fol. The case is a Parson or Prebend being within age made a Lease for years of his benefice and would but could not after avoid it for his Nonage for seeing the Church had made him of full age to discharge the spiritual
Office our Common Law thought it fit to inable him to dispose of his Temporalties and in 21 H. 7. fol. 12 13. 11 H. 7. the case is put by Bridges and confirmed by Justice Sylliard and was not denied by any that an Obligation made by a Major and Commonalty Dean and Chapter Abbot and Covent shall not be avoided for the Nonage of the Major Dean or Abbot yet all these serve in place of government howbeit in the said matters their Nonages shall not impeach them And in the third of Isaiah it is said I will give them 3 Isa children to their Princes and babes to rule over them noting thereby an unfitness in them to govern but debarred them not of the place and of this matter this shall suffice But now admit as oftentimes it falls out that Commissioners shall sit in the execution of this Commission of Sewers which have not taken the Oath which have not Lands of value or which is not a free Citizen and yet there be Ordinances Decrees and Laws made at those times Now whether those Laws and Ordinances so made by a disabled Commissioner be void or not is the question or whether the disabled Commissioner shall only undergo the penalty of Forty pounds There was a Statute made in 6 H. 8. cap. 10. whereby it 6. H. 8. was Enacted That the Chancellor of England for the time being should make no Commission to any person or persons except he had Lands and Tenements of Estate of Freehold to the yearly value of Twenty pounds or else be Justice of the Quorum within any of the shires where he should be made a Commissioner and if any such Commission were directed to any person or persons not having Lands or Tenements to the yearly value of Twenty pounds or not being one of the Justices learned of the Quorum as aforesaid That then every such Commission and all Presentments and Accusations had and presented before any such Commissioners be utterly void and of none effect But this Statute is in time expired long ago and therefore it is no interruption to our Commissioner for although the Statute of 23 H. 8. which I read on hath a Clause in it in effect That all every Statute and Ordinance heretofore made concerning the Premises made in the time of the said King or of any of his Progenitors not being contrary to that Statute should stand in force yet these words do not set on foot a Statute expired in time as that of 6 H. 8. is Also in the said Statute of 13 Eliz. if a Termor or Lessee for years be in Commission all Laws made which concern Lands whereof he is a Farmer are void as to him vide antea But to relie on our Statute of 23 H. 8. in my opinion it 23 H. 8. doth not avoid any of the Laws and Ordinances made by disabled Commissioners but doth onely inflict the punishment and penalty of Forty pounds a piece upon every of them for every time they and every of them shall sit in or about the execution of this Commission yet it seemed in the case de Jure Regis Ecclesiastico That whereas the Statute of first of Elizabeth which authorized the Queen to grant Commissions to natural born subjects that if she had granted the same to an Alien that acts done by him had been void But now my case proceeds to the next point or step and that is touching the Law and Ordinance made to race the said Were I inferred this clause in my case because I had not formerly occasion or fit opportunity to treat of the Lets Impediments and Annoyances which be contained within this Statute of 23 H. 8. and therefore I took this occasion to close up this days exercise with the discourse of them These by name are such Impediments Annoyances as this Statute speaketh of 1. Streams 2. Mills 3. Bridges 4. Ponds 5. Fishgarths 6. Mildams 7. Locks 8. Hebbingweres 9. Hecks and 10. Floodgates And the rest must be cōprised within these general words videlicet Other like Lets and Impediments And the discourse upon all these will rest most upon the Statutes heretofore made touching the same And the first Statute thereof made is in Magna Charta Mag. Chart. cap. 23. cap. 23. Omnes kidelli deponantur de cetero penitus per Thamesiam Medweyam per totam Angliam nisi per costeram maris This extends not to the Kings keddles per keble in 13 H. 7. 35. what this word kidellum signifieth appeareh by the title of that Statute which is Weres The next Statute to this is 25 Ed 3. cap. 4. which doth Enact That all Mills Weres Stanks Stakes Kiddels were levied 25. E. 3. and set in the time of King Edward that Kings Grandfather and after whereby Ships and Boats were disturbed that they might not pass the Rivers as they were wont should be cut and pulled down without being relieved The said first Statute is general that all Weres should be put down but by the Seacosts yet this word All are intended of such only as were erected without lawful Warrant and the said Statute of 25 Ed. 3. doth explain the generality of the said former Statute For thereby it appears That Weres erected in Navigable Rivers where Ships and Boats were wont to sail should be extirped because they were a hinderance to Navigation but this extends only to Navigable Streams which have been Navigable by use and Custom and it is manifest by this Statute that these Weres which were so to be put down must be only such as were erected in the time of Ed. the first and sithence because those seemed to be erected without lawful authority and being but erected in those times they had not the countenance of Custom and Prescription to strengthen them The next Statute in time is that of 45 Ed. 3. cap. 2. which confirms the said Statute of 25. Ed. 3. and then adding thereto that if any such annoyance be done it shall be pulled down and that he which shall relevy such annoyance and be thereof duly attainted he shall incur the penalty of One hundred Marks to the King to be levied by the Estreats of the Exchequer and the penalty is thereby given for the inhauncing of such Weres Mills Stanks Stakes and Kiddels This Statute is in part a confirmation of the said Statute of 25 Ed. 3. and in other part thereof it is a new 45 Ed. 3. Act in these points First in the forfeiture of a Hundred Marks Secondly this is the first Statute in my opinion made against inhauncing of such things which are counted annoyances And Thirdly it gives the like penalty against him which shall relevy the annoyance as against the inhauncer And because this Statute depends upon the said Statute of 25 Ed. 3. it extendeth therefore but to Navigable Streams The Statute of 1 H. 4. cap. 12. is a Statute in these points of great