Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	edward_n	knight_n	sir_n	8,077	5	7.4650	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Act and Ordinance heretofore made concerning the Premises in that Act recited not being contrary nor before then repealed should stand then in force But the said Judges did hold opinion that all the said Statutes stood unrepealed and acordingly made their Report to the Lords of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

Jury in whose default the same happened Thirdly the Commissioners are to enquire What person or persons ought or be bound by Custom Prescription Tenure Covenant or otherwise or for or by reason of what lands or grounds he or they be tyed or bound to do the repairs and where those grounds do lye and who be the owners thereof Fourthly also it must be inquired by Jury What grounds lye within the hurt or danger of waters either within the surrounder by the sea or the inundation of the fresh waters and to whom they do belong Fifthly and if a new Sluce Goat or other defence is to be erected built and made or a new Sewer Gutter or Trench to be cast this may be determined of by the view and survey of the Commissioners and so may the aptness of the places where they are to be set or cast and the length height bredth and depth of them for these things are proper for a view and survey But what persons hold Lands and Tenements within the Level which are fit to be chargeable thereunto and the quantity of their Lands are to be inquired of by Jury And these few causes I have put for example sake and if any other fall out within the like reason then they are to receive the same construction Sixthly in every case where an Amerciament is to be imposed it must be by presentment of good and lawful men upon their Oaths Et hoc per statutum de Magna Charta cap. 14. nulla miserecord ' ponatur nisi per Sacramentum proborum legalium hominum de viceneto c. Surveyors presentment BUt it hath been used that Surveyors of the Sewers have made presentments of defaults of things governed by these Laws but whether such a presentment be binding or not is a good point It is clear in my opinion that they can make no presentment but such as happeneth within their view and survey and what those things be they formerly appeared They cannot present that I. S. is bound by prescription custom covenant or otherwise to repair such a Wall Bank or Sewer for this is not within their Office In Kelloways Reports fol. 141. there is a custom alleaged that Kelloways Rep. fol. 141. two men within the provost might present the Articles of the Leet But I doubt of such Presentment though it have a custom to strengthen it I take this difference that an Original Presentment Surveyors cannot make as to present I. S. that by the Tenure of his Lands he ought to repair such a Bridge Wall Bank or other Defence But the Surveyors may make a supplemental Presentment as for example if it hath been presented before by a Jury that I. S. ought to have repaired such a Ditch and hath not done the same and day is given him by the Commissioners of Sewers to do the same if the same be not repaired at the day the Surveyor may present in this case the not repairing because this is but an Oath of assistance ad informandum conscientiam Judicis for the Amerciament shall be imposed by the force of the said former Presentment and this latter Presentment by the Surveyors is onely to give the Justices notice of the parties farther neglect to the end they may impose the greater Amerciament And a Presentment by Surveyors is not traversable being of so smal esteem in Law as our Law will not vouchsafe to take an issue upon it for their act herein is not in the ordinary legal form What Commissioners of Sewers may do by Discretion DIscretion is the herb of grace that I could wish every Commissioner of Sewers well stored withal for the makers of this Statute had an intention to make it of great use being literally nominated nine or ten times in this Law for this cause I have inserted in my Case but note that the word Wisdom is coupled with it and the word Good is annexed to them both as best shewing of what pure mettal they should be made of After your good wisdom and discretion There be three several degrees of discretion Discretio generalis Discretio legalis Discretio specialis Discretio generalis is required of every one in every thing that he is to do or attempt Legalis discretio is that which Sir Edward Cook meaneth and setteth forth in Rooks and Keighlies Cases Hoc est scire pro legem quod sit justum and this is meerly to administer Iustice according to the prescribed rules of the Law and herein is this discretion limited that it go not beyond or besides those Laws which are to be executed And this discretion is to be governed by the Laws for Cicero saith Sapientis est judicis cogitare tantum sibi esse permissum quantum Cicero sit Commissum aut creditum The third discretion is where the Laws have given no certain rule to be directed by in a case within the power of this Commission there the Commissioners are to order these affairs with such wisdom and judgement that although their censure be not framed in a Rule of Law yet they are to do therein secundum aequum bonum and herein discretion is the absolute Iudge of the Cause and gives the rule But in the case of Legal discretion there discretion is but a servant and is tyed to attend upon the Law and there the Law directs the censure and discretion is but to do the same wisely temporally for ipsae etenim leges cupiunt ut jure regantur Sir Ed. Cook in Book Case 5 Report gives this rule to the Cato Commissioners That although the words of the Commission be That they should do according to their discretions yet their proceedings ought to be limited and bounded within the Rules of Law and Reason for that discretion is a Science to discern betwixt falsity and truth between right and wrong between shadows and substance betwixt equity and colourable glosses and the Commissioners ought not to follow their wills and private affections for That talis discretio discretionem confundit And therefore now I will declare in few words in what things these Commissioners are to be ruled by good discretion First the quantity of Fines be left to the discretion of the Commissioners Item Imprisonment of the bodies of the offenders when they deserve and the time how long lieth much in their discretion Item it lieth in their grave wisdoms and discretions when and where to erect new Walls Banks and other Defences and what sums of Money to Raise and Levy therefore The election of Officers lieth in their discretion It lieth many times in their discretion whom to fine and whom to imprison I take it this word Discretion used in the Statute giveth power to the Commissioners to order businesses there arising in course of equity for hoc nihil aliud est but to proceed secundum aequum bonum I have put these few Cases as examples to direct and instruct what may be done by

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