in their Convocation house a Councel meerly consisting of the Clergy and then are confirmed in Parliament of which house also they are a Member And therefore in my opinion seeing Tythes are so sacred a duty that a Lay-man could not have any help for at the Common Law and were exempt from temporal and prophane uses I am therefore of opinion That they are not to be rated or taxed by the general words of these Laws Yet I am of opinion that Tythes in the hand of a Temporal or Lay-man are to be rated by these Laws for when they are come into his hands Tunc res spirituales fiunt temporales transeunt decimae in Catalla But I must here leave these Ecclesiastical persons and their Church livings There is another point of this Law will reach unto some of their possessions as to their Gleab Lands which belong to their Churches and their Meadow and Pasture grounds for these be not sacred as Tythes be But came to them by the benevolent gifts of Laymen and not ex duo dei evangelii as Tythes did and so they took that burthen with them from the Lay-donor which after may be imposed upon them And therefore such Parsons Vicars or other Spiritual persons which hold a plough Land in Culture are chargable by the Statute of 2 Mar. towards the repair of the highways as other Lay men be But in that Statute there be Ecclesiastical Officers used as Churchwardens whereby it was conceived that that Statute had an eye to bring Ecclesiastical persons within the reach of it And so for their houses and grounds I take them to be within these Laws of the Sewers for the own Lands are also chargeable thereunto and yet on earth within His Dominions He is said to be caput Ecclesiae and as much reason were it to exempt His possessions as theris if the respect of the person should bear any such sway in the Case Also I do finde by divers ancient Records That Abbeys Priories and other Spiritual possessions have been chargeable to the repair of Bridges Calceys Banks and High-ways by Custom and Prescription as appeareth also by the Books of 11 H. 4. fol. 82 83. and 44 Ed. 3. Fitz. 11 H 4. 44. E. 3. Title Bar. pl. 301. and I take it that by a very express and special Custom or Prescription a portion of Tythes in a Clergy mans hand may be charged with the the repairs of Bridges Ways Walls or Sea Banks but not without a direct affirmative Custom for I suppose that they may as well indure a charge in this kinde as a charge in a Modus decimandi And so I conclude this part of the Case That the person was not to be sessed for his Tythes by the general words of of this Law A Copyholder HEre is also a Copyholder taxed within my Case for his Copyhold Land and whether he for his Copy-hold and the Lord for the Freehold of that soil shall be assessed therefore is another question A Copyhold by the Custom of the Manor yieldeth and affordeth to the Lord Seigniory Rent Fines due upon admittances and such like duties but the Copyholder hath the real and visible profits of the soil therefore both Lord Copyholder receive Et commodum salvationem by the said defences And therefore the words of this Law be exceeding copious and full in this point of sesse viz. To inquire who hath and holdeth any Lands or Tenements or Common of pasture or fishing or hath or may have any hurt or damage or losse by any means in or near the said places and in this case the Lord holdeth the said Land in Tenure though not in Culture and many ways may have hurt and damage As if the Copyhold were overflowed by the Sea the Lord should lose his Freehold of the soil his Seigniory yearly Rents and Fines for admittances and all other perquesites So that the said words of this Stature beat mainly upon him But as there be reasons to be urged against him so there be matters to exempt him from this charge and to lay the burthen on the Copyholder First though he be Lord of the Copyhold yet he is seized of the Freehold thereof but in Imagination and construction of the Law for the Copyholder is pernor and taker of the visible and substantial profits Secondly the charge of repairs respect the possessioner in presenti which is easie to be found out and not imaginary owners as the Lord is And Thirdly if the Lord owner should both be charged pro una eademque re which the Law doth never permit for this is not like the Case of Lord and Commoner they there shall be charged the one for his Soil and the other for his Common for in this case the Lord is the immediate proprietor of the Soil and he hath the present and real occupation thereof as well as the Commoner hath the use of his Common and therefore they shall both be taxed to these repairs diversis tamen respectis But for the Copyholder it may be objected that he is not within this Statute for in Heidons Case in Sir Edward Hcidons Case Cooks 3 Report it is truly said That a Copyholder is not within the Laws and Statutes which alter the Service Tenure Interest of the Land or other thing in prejudice of the Lord and this is the cause that a Copyholders Lands cannot be extended or put in execution upon the Statute of Westminster the Second nor in extent upon the Statute of Acton Burnel and De mercatoribus for if they should then might the Sheriff make the Lord new Tenants without surrender and admittances which is contrary to Custom the life and essence of all Copyholds yet there is another good rule put in the said Case of Heidon that is That where a Statute is made for the general good and wealth of the Realm and that no prejudice can come to the Lord by alteration of Tenure Service Estate or Custom there Copyholds may well be within those Statutes Therefore now it is to be considered whether this Statute of Sewers will in any sort hurt or prejudice the Lord or no for it is certain that these Laws tend as much to the wealth and welfare of this Realm as any can do and in rating and assessing these Copyholds to the repairs of Banks Walls and Sewers c. it alters neither the Copyholders interest nor the Lords Tenure nor doth it in any sort prejudice the custom of the Manor But then it may be objected That if sesse be imposed upon a Copyholder for his Land and be not paid these Laws gives sale of Lands which indeed is the onely clause of this Statute which is material to exempt a Copyholder out of these Laws for clearly I take it That Commissioners of Sewers have no power to decree the Copyhold Land away for non-payment of the sesse Yet I am of opinion that a Copyholder though he be not within
that part of the Statute which giveth sale of Lands yet he is within the other part thereof for divers Reasons One I finde by experience and in divers presidents that many Copyholds have been and be charged with repairs of Bridges and other defences in divers parts of this Realm by customs Also if a Lord grant a Copyhold to I.S. and his heir by Copy Tenendum by the repairs of such a Wall Bank or Bridge this bindes this Copyhold thereto in point of charge And lastly this Statute bindes such to the repairs which may have good by the doing or hurt by the neglect And it is apparant that by over flowing or inundation a Copy-holders Land sustains equal damage with other Lands and for these Reasons I resolve that a Copyhold is within these Laws And shortly touching Copyholds I do confine them to these four heads My four Tenents concerning Copyholds First a Copyhold is sessable towards these repairs for his Copyhold Secondly that the Lord of the Copyhold is not to be taxed for the Soil of the Copyhold for although he might come to it by forfeiture committed yet that is a forain possibility and although he be seized in Law of the Freehold yet because the Issues and Profits go with the Copy-holder this Law therefore will not charge him for the Soil Thirdly in respect the Copyhold rent is a rent of Assize and rents be within the express letter of this Statute and because his rents by the overflowing of the Sea be lost therefore the Lord shall be assessed for it if it be of value Fourthly I am of opinion that a Copyhold may not be sold by the Commissioners of Sewers and yet Copy-holders be within other parts of this Law Now because it is a high point in this Statute in what maner to rate tax and assesse by the judicious power of these Laws and in regard my Case toucheth all maner of Sesses and Rates which be or may be imposed by these Laws I will therefore spread it abroad and I do intend to treat of what Lands and other things are to be assessed towards the repairs in my Case and what persons to be assessed and in what degree Wherein first I am of opinion that one is not to be assessed for his high and descending grounds for so it appears Register was the opinion of Brudnel in the 12 H. 8. fol. 3. where he saith That if a mans ground be surrounded with waters he may make a trench in his own grounds to let the waters run downwards and to descend upon his neighbors grounds for water is an element descendable jure naturae And also high descending grounds can have no such use of Walls and Banks as other grounds scituate lower may have for the waters can have no force against them and therefore the owner is not chargeable therefore and the words of the Commission expressed in the Register be Qui defentionem Commodum salvationem per Predict as Wallias Guttur as pontes Calceta gurgites habere poterint nullatènus parcantur And the Charter of Rumney Marsh seems to bear the same sence viz. Quod pro securitate dicti Marisci districtiones fiant ita quod aequè fiant secundum portiones majores minores quas homines habent in eodem Marisco But high grounds by nature need not Engines of art to defend them And in Rooks case in Sir Rooks Case Edward Cooks 5. Report and Keighleys Case it is truly declared That the grounds lying on the Level which are in apparant danger subject to surrounder are only chargeable to repairs by this Law But yet grounds lying on high Mountainous places may be by Custom Prescription or Tenure liable and stand chargeable to repairs of Walls Banks Sewers Goats and other Defences And in such cases though they be never so high yet these Laws will reach unto them but no charge is to be imposed on them by this Statute and by force thereof onely without a special Custom or Prescription to warrant the same Annuity IF a Dean and Chapter or other Corporate persons or Body Politique be by Prescription to pay a yeerly Annuity to I. S. and his Heirs I. S. is not sessable for his Annuity yet the said Corporate or Politique persons pay the same in respect of their Lands which lie in danger of surrounding and so the grounds be subject to these Laws but it issueth not thereout And the said Corporate and Politique persons are not charged in their Lands but in respect of their Lands to pay the same Commons THose persons which have Common of Pischary Turbary or of Pasture in great Fens Marishes and Wastes may be charged but Commoners in agris seminatis after the corn severed as stock Commons which be of a smal value are not to be charged for their Commons but for their Lands Ferry HE which had a Ferry over a River was in 37 lib. Assiz pl. 10. charged to repair the River and so for a Ferry one may be charged by this Law Herbage HE which hath the Vesture or Herbage of grounds as Prima tonsura vel vestura terrae may be charged to the repairs Free passage IT appears likewise that those persons which had passage for their Boats on the River were to be rated towards the repairs in 37 Lib. Assiz pl. 10. but this is to be intended of those persons which had free and customary passage thereon as a liberty and inheritance and was not meant nor intended of poor Boatmen which come thereon with their Boats accidentally by the general Custom of the Realm Parks Warrens Chases A Man for his Park of Dear and Warren of Conies shall be charged if these liberties lie within the Level but for Chases I suppose one is not chargeable onely for Dear which be ferae naturae not bound to certain precincts but in that case the owner is onely to be taxed for the Soil Mart Fair or Market ALso if one have only the liberty of a Mart Fair or Market to be kept in a place which is subject to surrounder In my Opinion because they are but casual in their profits and not continuall in their being although they be conscribed to place and circuit yet being no part of the Soil nor of the issues and profits thereof they are not taxable within these Laws Offices THe Office of the Clerk of the Market Town Clerk or such like although these Officers be confined to a certain place and precincts within the Level which is subject to surrounder are notwithstanding exempt from these taxations Proxies Synods HE which hath Proxies or Synods of Annual sums of money such as was in the Case of Proxies in the Irish Reports is not sessable within this Law for although the person is charged therefore in respect of the grounds yet the same doth not issue thereout The Morgager for the Title he hath by the Condition to reduce the Lands back again to him or he which hath
title to Land by Action Condition or Entry or he which hath a contingent use shall not be taxed for them Neither was Cestui que use at the Common Law before the Statute of 27 H. 8. of uses nor is the Bargainee of Land before the Deed be inrolled sessable by this Law Neither is one who hath the presentation or nomination to a Church as Patron or he which is Founder for his foundership Taxable within this Statute yet they be Tenements the largest words of charge within this Law but the Law intends the immediate possession of such Tenements which be proficuous and not these things which be Tenements in Law and which be but conveyances and their fruit is Ceremony without Substance This Law setteth down such things for the which one is chargeable viz. He which hath Lands Tenements Rents Commons of Pasture Profit of Fishing or other Commodities and such as have Safety Profit Defence or any other Commodity These be the words of charge recited by this Law This word Land is of large extent for it reacheth to house Arrable Pasture Meadow Mills Tofts and to all other Edifices Moors Marishs Woods Wood grounds for all these the earth is the substance Et omne solo cedet and the several increases thereof be but qualities The word Tenements is of larger extent then Lands for it containeth all which the word Lands doth and all things else which lyeth in Tenure so that I think it shall be but labor lost to enter further into the particulars thereof Lord and Tenant IF there be Lord and Tenant and the Tenant holdeth of the Lord by yearly Rent services the Lord may be rated as well for his Rent as the Tenant for his Land to Annual repairs as well as to accidental by reason of these words in the Statute that is That every one be rated and taxed according to the rate of every persons Rent Tenure or profit here be full words to charge the Lord for his Rent and so Rent charges and Rent seck shall be subject to sesses in this kinde for otherwise the Tenant of the grounds may be undone thereby in regard the Rents going and issuing out of the grounds may amount to as much almost as the yearly value of the grounds do But if the Rents be so smal as they are scarce worth the gathering then in discretion the Commissioners may spare them for De minimis non Curat Lex Also whether the remainder man and he in Reversion depending upon an Estate in Tail shall be rated and taxed or not by the power of these Laws is an apt question for this place and therein my opinion is That being dry and fruitlesse Remainders and Reversions they shall not be sessed to the repairs but the Tenant in Tail in possession shall be solely charged for it is more to be feared that Tenant in Tail will cut off the Remainder and Reversion by a Recovery then that the Sea shall drown his Estate by an overflow Lessee for years and he in Reversion IN the Case of the Lessee for years and for life and those in Reversion and Remainder there is a greater cause of dispute then between Tenant in Tail and he in the Reversion And because it is an often Case I have therefore taken the more pains to resolve the same First the Lessee is in the present possession and so is subject to all ordinary charges and with this agreeth Jeffrays Jeffrays Case Case in Sir Edwards Cook 5 Report for there the Case was resolved that where the Inhabitants of a Town were assessed towards the repair of a Church there the Lessee for years was charged and not the Lessor though he had a yearly Rent reserved For in point of the Rent this Case and that will differ by reason Rents be expresly within this Law but I now speak of a Lessee where no Rent is reserved In 17 Ed. 4. fol. 6 a Tenth was granted to the 17 Ed. 4. King by Parliament of the value of their Lands and the Lessee for years was charged therewithal and so was the Law there taken if the Parliament had given the Tenth part of the issues and profits of the Lands The Case of the Proxies in the Irish Reports doth in my Opinion in reason resemble this Case for the Case was Case of Proxies there That the Bishop of Meath in Ireland had a Proxy of fifteen shillings payable out of the Commandry of Kells then parcell of the possessions of St. Johns all which came to the Crown by the dissolution of Monasteries in that Kingdom and after the said Bishop granted the said Proxies to Queen Elizabeth and after Q. Elizabeth made a Lease of the Commandry to Dr. Forth reserving a yearly Rent without mentioning the Proxy And it was there resolved That Doctor Forth the Lessee for years should be at the charge to pay the said Proxy with all the arrerages thereof which did incur in his time And so in the case of a Rent charge the Lessee is chargeable and he is to pay the Tythes and the Composition money due therefore So that these Cases sway strongly against the Lessee for years to lay the whole charge upon him and to exempt the Lessor But yet we must here distinguish and make a difference between Annual repairs in ordinary things and extraordinary repairs for to furnish the defence with petty reparations they shall be laid only upon the Lessee for years or for life but if a new Wall Bank or Goat or Sewer be to be built new and erected or if the ancient defences be decayed in the main timber or in the principal parts thereof here as well the Lessor as the Lessee shall be put to the charge for these things be not ordinary and annual charges but do reach from the beginning of the Lease to the top of the Inheritance as for petty reparations they are by intendment to continue but for a short time which are likely to be spent during the term and lease but these new defences are apparantly done to save the Inheritance And this difference holds good correspondency with other Cases in our Law as in 49 Ed. 3. fol. 1. and 3 Eliz. in Dyer fol. 198. and in 49 Ed. 3. 3 Eliz. Dier that Book again fol. 134. and in divers other Books it is holden for Law That if a house in Lease decay in the Groundsels Post or Balk in the great timber in direct wearing by tract of time and not in default of the Lessee the Lessee may take and cut up timber growing on the grounds leased to repair the same and the Lessee shall be at charges of workmanship for the repairs are in matter of right and do the Lessee good during his Lease and the Lessor after the expiration thereof And because these great repairs extend to both their goods therefore they shall both be contributory thereto But if a house be decayed in splinting thack walling or in such
case and so the words of the Statute and of the Law may herein be satisfied Now I hope I have fully instructed the Commissioners wherein they may learn whom to Imprison when to Fine and how to Amerce in a legal and orderly sort and according to the ancient and approved Rules of Law and of the grand Charter for in those things they are to direct their discretions by the said Rules and they are to be guided thereby and are not to proceed therein according to their own wills And herein I shall conclude the second point of this part of the Law that is That Commissioners of Sewers have power to Imprison to Fine and to Amerce And that B. for refusing to obey their Order was justly imprisoned and C. was as justly fined And for the reasons and causes aforesaid the Commissioners in their discretions though the offences of both were alike yet they had power to imprison the one and to fine the other And now I do intend to proceed to the fourth point of my Case and the third point I intend to handle in a more convenient place Distress THe point of Distress in my Case is grounded upon these 4 Point words of this Law viz. And all those persons and every of them to tax assess distrain and punish as well within the metes limits and bounds of old time accustomed or otherwise or elswhere within the Realm of England Three sorts of Distresses First there be divers kindes of Distresses viz. Judicial which always issueth out of the Rolls of the Court. Secondly Ministerial and such Distresse is to be performed by the Officers of these Laws without any judgement directing the same Thirdly and there is a Distress of Common right not given nor awarded by Judgement in Court or by Warrant of the Commissioners but incident to the thing it self And first of the Iudicial Distress which is awarded by the Court upon a presentment found of a Nusans or in the recovery of an assize of Nusans or in an Action of the case as it appears by the 42 Assiz plac 15. 32 Ed. 3. 23. and 7 H. 4. 8. there a Distringas ad Amovendum shall be 32 Ed. 3. 7 H. 4. awarded to remove the Nusans and so in case of a decay presented As if I. S. suffer a Bank or Wall to decay and that be presented a Distringas ad reparandum shall be directed to the Sheriff to distrain I. S. to repair the same Secondly a Distress Ministerial is where one is assessed or rated to pay a certain sum of mony towards the repairing of a Wall Bank Sewer or Goat here upon Warrant from the Commissioners of Sewers the Officer expressed in that Warrant may distrain the cattel of the party which ought to pay the said Rate and Sess and which did neglect to pay the same And yet where there is a Rate and Sess imposed upon one by the Commissioners of Sewers I am of opinion that the Collector or Officer may distrain therefore without any express Warrant from the Commissioners so to do and my reason is grounded upon the Statute which is this because the Statute and Commission which be the general Laws do of themselves in this case give a distress And therefore in these cases the Warrant of the Commissioners is superfluous like to the Case in 20 Eliz. Dyer 20 Eliz. fol. 362. where a Fine was levied of Lands to the intent that I. S. should have and receive a yearly Rent thereout although in the conveyances there was no mention made that the party might distrain for the same Yet in that Book it is mentioned to be adjudged That the owner of that Rent might distrain for the same because the Statute of 27 H. 8. in 27 H. 8. that Case gave a distress Upon which Statute the said conveyance was grounded So if their be two coparceners to whom Land doth descend and they make partition and for more equality she that hath the better part doth grant to the other and her Heirs a yearly Rent out of her Land but limits no clause or power of distress she to whom this yearly Rent is granted may distrain therefore And so may a Bailiff distrain for an Amerciament in a Leet without a Warrant because the general Law gives a Distress in these cases Thirdly and as touching a Distress of common right It is in case where one doth hold his Land of his Lord as of his Mannor to repair a Bank Wall or other work of Sewers the Lord of whom these Lands be holden may distrain his Tenant of common right to compel him to make these repairs and the Distress given in the said Case of the coparceners and in the said Case of Amerciament in a Court of Leet seem both to be Distresses of Common right And that the Law is that a Distress lyeth for a Rate Lot or Tax imposed by the Commissioners of Sewers it is manifest by the Case of Rooks in Cooks 5 Report which is full and direct authority in the point In what place a Distress is to be taken NOw touching the place where these distresses are to be taken comes next into our consideration wherein the quality of the matter distrained for and the power from whence the distresses are derived are to be considered of And therefore if a Lord do distrain his Tenant Ratione tenurae for to repair a Wall Bank or other defence this Distress must be taken on the Ground holden by this Tenure and not elsewhere for these grounds are chargeable therewithal as the opinion of Iustice Sylliard is 21 Ed. 4. fol. 38. But not as that Case is but in point of Tenure 21 Ed. 4. for there the Case was That a presentment was found in hec verba videlicet Iuratores present ' quod est communis Regia via in Parochia Sancti Martini in Campis in Com' Middlesex inter Hospitia Epis ' Dunelmensis Epis ' Norwich totalitur superundat ' aquis quod tam domini spirituales quam temporales Justiciarii domini Regis Servientes ad legem omnes alii Legis ministri omnes alii per viam illam versus Westmonaster ' itinerantes pro legibus domini Regis ibidem ministrandis observandis sepius impediuntur per quod via illa totalliter superinundata existit excessu emanationis aquae pluvialis ibidem remanent ' quam quidem aquam Episcopus Norwicensis rationae tenurae suae ibidem evacuaere debuit quod ipse omnes predecessores sui ratione Tenurae suae ibidem evacuaere debent And in this case I take it the Land was charged not as in respect the Bishop of Norwich did hold the same of some Lord by the Tenure to repair the Sewer to avoid the water but his Land stood charged with the same as a charge imposed thereon by Custom or Prescription as by the president it self appeareth for if the Bishop of Norwich had been
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
further in proof of my said opinion the Case of the Lord Cromwel in 15 El. in Dier fol. 322. doth come fully thereto which is That a Replevin in an Avowry was made for a pain and forfeiture of Ten shillings due for the breach of a By-law Contra ordinem Curiae and alleaged to make By-laws within the Manor by the Custom thereof In which Case it is apparant that the proper goods of the party are to be distrained therefore and not the goods of a Stranger Levant and Couchant on the grounds And in the 47 Ed. 3. fol. 12. the Prior of Tindals Case 47 Ed. 3. where the Prior was amerced and another mans goods were taken and distrained on the grounds of the Prior for the said Amerciament and the Distress was not well taken and so my opinion may be conceived that for an assess the goods of a Stranger may be distrained on the grounds charged but may not there be taken for a Fine or Amerciament which be collateral duties and attends upon the person and do not charge the Soil This discourse being thus ended I shall now enter into a matter of greater moment and yet because these matters be frequent in businesses of the Sewers that which I shall here pretermit I will in some other place more fully discourse of Goods sold THe further matter of this point will rest upon this whether goods distrained and taken for a Sess and Rate of Sewers may be sold or not which point hath been oftner practised then the Law truly decided But before I shall touch upon the main I will make an Ingresse to treat of such matters whereby the property of a mans goods may be altered without his consent And first at the Common Law if a mans goods be wrecked waived or taken as strays or sold in Market overt the property may be altered Secondly by Custom as in London upon a Foraign attachment goods may be attached and sold to another and in 10 El. Dyer fol. 279. B. a Custom is alleaged to be in York of Foraign goods there bought and sold are seizeable by the Corporation and so in case of a Heriot Custom Thirdly But the King by his Charter cannot take the properties of my goods from me as in the Case of London Cooks Rep. the Case of Austen and Waltham where King Henry the 6. granted to the Corporation of Dyers there by Charter That if upon search they should finde any Clothes died with Logwood that they seized them as forfeit but resolved that this Grant was in that point void Fourthly by a By-law in a Court Leet or Baron the property of my goods cannot be taken from me And fifthly by a Judgement against one at the Common Law although a mans person nor his Lands were lyable thereto yet his goods were These five grounds being first taken I shall now examine the particular of our Case in question touching the Law made by the Commissioners for sale of goods and against this sale many things may be alleaged First this Statute I read on gives a Distresse and a Distresse is but a gage or pledge and cannot be sold for if a Lord distrain his Tenants Cattel for Rent and Services he cannot sell the Distresse And although in 10 11 El. Dier fol. 280. a return irreplevisable was awarded to the Lord or Avowant yet he cannot sell this Distresse nor work them by the opinion of that Book Secondly the Statute of 7 Jac. cap. 20. Rastal Marshes and Fens doth enact that a Commission in the nature of this of ours should be directed to the Bishop of Norwich and others for the Recovery of Fen-grounds where for an assess imposed and for Fines and Amerciaments expresse power is given by that Statute to sell the parties goods which doth refuse to pay Ergo without such an expresse clause a sale of goods could not have been lawful And by the Statute of 1 and 3 Jac. the forfeitures of Alehousekeepers 1 3 Jac. may be levied by sale of their goods by the expresse letter of these Laws and so it may be inferred that our Statute wanting such an express clause to authorize a sale therefore no sale can be But much may be said to the contrary for although in cases of sale the Laws be tender yet it is plain that both our Common Law Customs and Courts of Justice daily use them and are frequent in those sales And we know that a Distresse is properly a pledge to be detained till satisfaction be made and then to be restored and is not to be sold Yet in 3 H. 7. fol. 4. a Distresse taken for an Amerciament 3. H. 7. in a Leet or Law-day may be sold as well in the case where the Subject hath by Charter or Prescription the profits of the said Courts as where the King himself hath them and all the reason which that Book yieldeth for it is because they be the Kings Courts But a Distress taken for an Americament in a Court Baron cannot be sold and in 22 Assiz plac 72. it is said That if one recover a Debt in a Court Baron the goods of the Debtor could not be sold therefore 22 Assiz Yet I have seen always in practise that for Debts and Damages recovered in the County Courts the goods of the Debtors have and be usually sold for them by Levarifacias and in my opinion this is used per totam Angliam and a sale in such a case in a Court Baron by Custom is good and with this agreeth the Book of 7 H. 4. fol. 27. and 21 H. 7. fo 40. in a Leet Court one prescribed and alleaged a Custom to 7 H. 4. 21 H. 7. have of every one which made an affray within his Liberty a certain sum of money and prescribed also to distrain for it and to sell the Distresse and with this agreeth 11 H. 4. 14. and 11 H. 4. fol. 2. A Distresse taken for the Knights Fees of the Parliament was sold Therefore now let us see and examine well by what authority our Officers of Sewers may sell the Distresses taken The words in our Statute which are most powerful in this point be these viz. To depute and assign diligent faithful and true Keepers Bailiffs Surveyors Collectors Expenditors and other Officers for the safety conservation reparation and making repairing reforming and amending of the Premises and every of them and to hear the accompt of the Collectors and other Ministers of and for the receipt and laying out of the money that shall be levied and paid in and about the same Here is the word Levy used and money levied is properly upon a Sale Execution or Forfeiture And the words of our Statute go furthet viz. And to distrain or otherwise to punish the debtors and distrainers of the same by Fines Amerciaments Pains or other like means after their good discretious and no likelier means to these is there any then to make sale of the
decree of the sale must be directed by and depend upon the sesse But if after the general sesse be laid the same be after assessed upon particular persons by particular sums by the said Commissioners then upon default of payment their Lands making default may be decreed from them by the power of this Statute If an assesse or charge of payment be laid upon certain Lands without mentioning the Owner the Lands cannot be decreed from him by this Law for the words of the Statute be That if any person or persons assessed to any Lot or Charge do not pay So that I shall take it that no decree for sale of Land can be made but where there is a person certainly assessed by name Lands cannot be decreed away from the owners for default of payment of Fines Amerciaments or Pains for though these be sums of money or charges imposed by the Commissioners of Sewers of persons certain for matters touching these Laws yet because they were not sessed or rated towards the repairs of any works of Sewers but be set upon the parties as mulcts and punishments and be due to the King therefore no decree of Lands can be made for any of them Now the second part of this clause is what Lands may be decreed by the authority of the said Statute and thereby it appears they must be such Lands as lie and be within the power of this Commission of Sewers and herein rests a difference between the case of a Distresse for a sesse which may be taken in any place within this Realm and the decree of sale of Lands for Non-payment of a sesse which must lie within the bounds and extent of the Commission for this Distresse is circumscribed to the extent of the Statute which is over the whole Realm and the sale is tyed to the limits of the Commission And I am also of opinion that no Land can be sold away by the decree of the Commissioners of Sewers but such as were charged with the sesse If one hold his Lands in Comitat ' Eborum to repair a Sea-bank in the County of Lincoln and the Owner is assessed therefore and makes default of payment the Commissioners of Sewers in the county of Lincoln may give warrant to distrain for this sesse in the county of York but they cannot decree away by sale those Lands lying there which were charged with the sesse A Copyholders Land cannot be decreed against him by this Law for if it might then these customary Lands should be transferred from one to another contrary to the Customs of the Manors whereof they be parcel and it would infringe that rule which is delivered in Heidons Case Heidons Case in Cooks 3 Report which is when an Act of Parliament doth alter the service Tenure and interest of the Land or other thing in prejudice of the Lord or of the Custom of the Manor or of the Tenant there the general words of such a Statute doth not extend to Copyholds And in this case if any sale should be made by the Commissioners all the said rules should be infringed for it were contrary to the Custom to passe these Lands without surrender it were in prejudice of the Lord to have Copyhold-land passed and he to have no Fine And I am likewise of opinion that the Freehold of these Lands could not be passed away for a sesse or a lay because the Lord hath but the shadow and the Copyholder hath the substance But if the Lords Rents of Assize should be assessed as they ought to be and he do neglect to pay then these Rents might be decreed from him and so may all other Lands Tenements and Hereditaments decreed in respect whereof one is sessable and sessed by the Laws The third Branch of this clause is the direct point in my case viz. What persons what estates be bound by these decrees And first of the Heirs in Tail whether they be bound by a decree made against the Donees in Tail their Ancestors is the question In the handling whereof I hold it sitting to shew in what cases the Heirs in Tail have been bound by the act of their Ancestors and the reasons and causes thereof And therefore if a Disseisor make a Gift in Tail and the Donee in Tail grant a Rent to the Dissessee for release of his right this will binde the Heir in Tail for that by this release his Estate which before was defeisable is now confirmed as by the Books of 44 Ed. 3. 22. and 20 Ed. 4. 13. 44 Ed. 3. 20 Ed. 4. 46 Ed. 3. appeareth and so in 46 Ed. 3. a gift in Tail was made Ita quod the Donee might alien to the benefit of the Heirs in Tail and and this by Judge Welbey was held a condition which bound the Heir in Tail for his benefit And in 12. Ed. 4. 1. Tregouse and Taltarms Case was That a recovery against Tenant 12 Ed. 4. in Tail with a Voucher by him over did binde the heirs in Tail by the Common Law by reason of the intended recompence which was to come to him by the Voucher and so a lineal warranty with assets and a collateral warranty without assets were and be both of them bars to the Issues by reason also of the intended recompences and these are things which were originally tied to those Estates and were incidents to them ab initio And therefore this shall suffice to treat of bars to the Issues in Tail by the Common Laws and now I shall proceed to shew in what cases they were barred of their Estates by the Statutes of this Realm By the Statute of 16 R. 2. cap. 5. The Lands and Tenements 16 R. 2. of one attaint in a Premunire are to be forfeited to the King and in 21 Eliz. one Trudgin was Tenant in Tail 11 El. and was attainted in a Premunire and the question was Whether Intailed Lands were forfeited against the Issues in Tail or not And in Doctor Forsters case in Cooks 11 Report C. 11 Rep. it is there said to be resolved that the general words of that Statute did not repeal the Statute of Westminster 2. of Intails and so the forfeiture was there resolved to continue but for the life of Trudgin and did not binde the Issues in Tail A Judgement in Debt against Tenant in Tail or if he be bound in a Statute or in a Recognizance in the nature of a Statute the Lands Intailed were not extendable nor to be held in extent by the Statutes of Westminster 2. Acton Burnel or by the Statute de Mercatoribus by any of the general words of these Laws but the Statute of 33 H. 8. cap. 39. by expresse words bindeth the heir in Tail for their Lands 23 H. 8. whose Ancestors stood indebted to the King by Judgement Recognizance Obligation or other specialty But the Statute of 26 H. 8. cap. 13. Enacts That every 26 H. 8. one which shall be
attainted of Treason shall forfeit the Lands whereof he is seized of any Estate of Inheritance and by this Statute Intailed Lands were forfeited and the words Of any Estate of Inheritance were the words which gave that forfeiture the one in Fee simple the other in Fee tail and the word any presupposeth more Estates of Inheritance then one But whether a Decree of sale of Lands made by Commissioners of Sewers shall binde the heirs in Tail is the point of my case and in my opinion I think they shall be barred for the causes and reasons following First the words of the Statute of Sewers be That such a Decree shall binde all and every person and persons that at the making of the same Decree had any interest in such Lands Tenements Hereditaments in Uso Possession Remainder or Reversion their heirs and assigns So that by expresse words it bindes the heirs and it would have bound the heirs of a Tenant in Fee simple without the word Heirs expressed in the Statute therefore the word Heirs needed not but onely for the binding of the heirs in Tail Also if these Lands were charged by Prescription as many Lands be then were the Lands originally bound and the heirs in Tail stand charged with these sesses as well as Land in Fee simple And lastly this is a Law enacted for the preservation of the Commonweal and is more to be favored then particular Estates of heirs in Tail But the case of the Premunire was penal in point of a forfeiture which is to be strictly taken for the King and favorably for the subject and therefore in my opinion the heirs in Tail shall be bound in these cases of sale and the rather because they be within the words of the Statute videlicet Heirs generally put which extends to heirs in Tail as well as to heirs in Fee simple and because the sesse and charge shall binde both alike so in my opinion the sale shall binde both in regard the sale depends upon the charge and sesse If a Prebend Parson or Vicar Dean Bishop or such like which be seized of Lands in their politique capacity be sessed to repairs of works of Sewers their Lands cannot be decreed away from them in such sort as to binde their successors for as this Statute of Sewers extend to binde Lands by decrees in perpetuity so the Statute of 1 and 13 and 14 Eliz. restrain Alienations and where those Statutes restrain them I am of opinion that this general Statute of Sewers doth not dispence with those Statutes In Croft Crofts and Howels Case and Howels Case in Plow Comment a fine with Proclamations and non-claim by five years did binde the Corporation of the Mystery of the Cooks in London for their right in Lands and so all other Corporations which are absolute of themselves and needed not the assent of any other as Majors and Commonalties Deans and Chapters Master and Fellows of Colledges But the Law is otherwise of Parsons Vicars Prebends and such like And the like exposition do I make of them in this Statute of Sewers But I will here make a distinction I am notwithstanding of opinion That the Parsons Vicars Prebends and such like for their own neglect are bound during their times but not their successors after them And note this Statute though it mention heirs yet it doth not at all mention successors which is worthy of consideration also And in my opinion this Statute as to Decrees to be made of Lands will binde women Covert Baron Infants persons that be non sanae mentis and such like because it is a Law made for the safety of the Commonwealth And so it is held in Zouches case in the Com. That the Statute of 4 H. 7. of fines had bound Infants Ideots and Women Court Baron had they not been excepted in that Statute A forciori Zouches Case shall they be comprised in this Statute for the Statute of fines was made for the peace of the Weal-publique but the Statute of Sewers was made for the safety thereof If there be two Tenants in Common which be sessed towards the repairs of a Wall Bank or such like work of Sewers and one of them do neglect to pay his proportionable part Whether Commissioners may decree a moyety without partition both of the sesse and Land is a question for their Estates are several though there be a community in taking of the profits And therefore the matter is whether the assesse shall attend upon the possession which is in Common or upon their Estates which be several And although Commissioners in assesse be not bound to take notice of their Estate yet if they take upon them to decree a mans Lands from him they are then to take notice of his Estate and of all other circumstances necessarily depending thereupon In 22 H. 6. fol. 12. if a Trespasse be done upon Lands which are held in Common they are to joyn in an Action but if one of them die that Action shall survive for though they were joynt in the personalty yet they disjoyned in the realty And if two Tenants in Common of Land joyn in a grant of Ten pounds rent charge out of their Lands the Grantee shall have Ten pounds yearly of either by the opinion of Mr. Perkins But if a sesse of Ten pounds be laid and imposed upon them by this Law of Sewers this sesse shall not double as the Rent should yet in this case of a joynt assess imposed upon Tenants in Common and one would pay his moyety and his companion refuseth the Commissioners of Sewers cannot sell a moyety of the Land for that it is a joynt sess and was not imposed by moyeties and the sale doth depend upon the sess and all may not be sold for that one Tenant in Common cannot prejudice his companion in things of Realty The fourth matter is to whom Lands may be decreed by this Law for by the words of the Statute it appeareth That the Commissioners have power to decree Lands for default of payment for years for life in Tail or in Fee simple whereby the Law intended they should make their decrees for sale according to the quantity of the sess and so should use moderation in the Estates they made or sold therefore and it was not intended they should sel the Feesimple away for sess which might be satisfied with the making of a less Estate And I am of opinion that this decree doth make the Estate with the help of this Statute according to the limitation which should therein be declared and that the party shall have Estate according as the same is thereby limited unto him and this is no equitable decree which bindes the person onely as Chancery decrees be but it bindes the Land and therefore the Commissioners may not decree Lands to a Corporation as to a Major and Commonalty Dean and Chapter or such like which be Mortmain for the general words of this Statute
and a Villain for years and a Captive taken in the Wars be for there shall be paid for him a Ransom as is mentioned in the Register fol. 102. Moneys due upon Statutes Judgements Recognizances Bonds Bills or Contracts be not valueable substances within this Statute for by this Statute it must be clear and not doubtful or accidental as Moneys out of hand be which is like to a Bird in the Bush yet these be all valueable and are valued in Inventories taken in the Ecclesiastical Courts But yet the Executors or Administrators shall not be charged for assets for them till they have received them And in 25 H. 8. in Dier fol. 5. Obligations are not held valueable but things in action and if one 25 H. 8. have got goods by tort and wrong to the value of One hundred pounds yet this is clear valueable substance within this Law for although the word clear be inserted into the Statute yet that relates to the value and not to the title of those goods And if one have goods as Executor or Administrator these are not his own and therefore do not inable him to be a Commissioner within this Law Neither do the goods of the Church inable the Parson Vicar or Curate nor the goods of a Corporation do not inable the Major and Aldermen or Citizens of a City or Town Corporate for these do not belong to their particular persons neither did this stock in my case which is demised to B. and C. make them competent Commissioners within this Statute because they had not the property therein but onely the use and occupation thereof And although in this Statute it is not declared in what place these goods which should inable a man to be a Commissioner of Sewers should be in it will suffice if the party have them in any place within the Realm for this very Law calls them Moveable substance And herein I end my Free Citizen and in my opinion E. had neither Freedom in his person nor real Estate in Land nor moveable substance in any sort to make him a competent Commissioner within this Law yet if a Freeman be destitute of goods or want perfection in his Freedom if notwithstanding he have Lands to the value of forty Marks per annum then he shall be allowed a Commissioner within this Statute Touching which point of Lands I now intend to proceed in In the handling of this matter it is to be considered which be Hereditaments within this Law for the other two words Lands and Tenements need no exposition wherein I am of opinion That Messuages Cortages Toâ—â—s Crofts Houses Land Meadow Pasture Feedings Moors Marishes Heaths Furs Mills Orchards Gardens Hopyards Rents of Annuities Prima vestura terrae Pischaries Tythes Pensions Portions Proxies Parks Warrens are all of them Hereditaments within this part of this Law for the word Hereditament is a word of the larger size and largest extent in our Law being Omne quod Haereditari potest and yet every Hereditament is not within this branch for it hath two other words joyned therewithal videlicet yearly value And therefore Franchises and Liberties as Waifs Strayes Felons goods Deodans Fines Amerciament Profits of Courts Fairs Markets Ferries Hundreds Leets and such like are all of them out of this Statute in this point because they be not of a certain yearly value but be accidental and depend in contingency by the opinion in Butler and Bakers Case Cooks 3 Report But as it is there said If these things have heretofore been usually letten and demised for certain yearly Rents then they may be Hereditaments of clear yearly value within this Law All Offices and Vocations as Physitians Chyrurgions or Trades as Merchants Mercers Grocers Drapers and such like be neither Hereditary nor of certain yearly value and therefore they be not within this Law though perhaps one gain thereby Five hundred pounds per annum Also dry reversions or remainders depending upon Estates for lives are out of this branch for the words of the Statute be having which is in praesenti and not futuro Neither is an Advowson of force in this point though it be assets in a Formdon yet it is no assets in an Action of debt brought against Executors Homages Fealties Escuages Heriots Reliefs Nomine paenes and such like be Hereditaments but because they are not of yearly value they are not therefore within this Law Also if a Commissioner of Sewers be seised of a Rent or Annuity payable every second year it doth not inable him to sit because it is not Annual which is intended yearly and every year as the Pryor of Plymptons Case in Dier fol. 133. is but if one do grant to I. S. an Annuity or Rent of Forty Marks in Fee payable at the feast of Easter yearly if the grantee will then come for it to such a place is of certain yearly value within this Law But put the case that A. is seised of Land in Fee and grant to B. Forty Marks per annum for his life only I am of opinion that B. is no sufficient qualified Commissioner within this Law But if A. be seised of a Rent of Forty Marks per annum in Fee and he grant the same to B. for his life he is a competent Commissioner within this Law differentia apparet Our Statute goeth on in these words That the Commissioner which would sit without exception must have in Lands Tenements or Hereditaments of the clear yearly value of Forty Marks to his own use Therefore a man seised of Lands to that value in the right of his wife although he take the Rents and Profits to his own use yet this will not inable him to be a Commissioner within this Law but he must have them in ejus usu ad ejus usum A Feoffee to a use before the Statute of 27 H. 8. of uses was no competent Commissioner within our Statute for he had the Land then to another mans use Neither was Cestui que use sufficiently qualified to be a Commissioner Two Tenants in common or coparceners of Forty pounds Lands per annum are neither of them of sufficient ability to be Commissioners within this Law And the like Law is of two Joyntenants of Land of that yearly value for though they be seised per my and per tout yet in truth and in a legal construction either of them be seised but of a moyety So that if two Joyntenants Tenants in common or coparceners be seised of Lands of the yearly value of Threescore pounds either of them may sit by this Commission A Dean and Chapter Major and Commonalty Master of a Colledge and Fellows which be seised of Lands and Tenements of the yearly value of a Hundred pounds per annum are not in respect thereof to sit If a Bishop Dean Chancellor Archdeacon Prebend Parson or Vicar be seised of Lands in Jure Ecclesiae of the clear yearly value of Forty Marks I suppose these may
THE READING OF That Famous and Learned Gentleman Robert Callis Esq Sergeant at Law Upon the Statute of 23 H. 8. Cap. 5. OF SEWERS As it was delivered by him at Grays-Inn in AUGUST 1622. Quod omnes tangit ab omnibus supportari debet LONDON Printed for William Leak and are to be sold at his Shop at the Sign of the Crown in Fleetstreet between the Temple-Gates MDCXLVII READER AMongst other Decays in the Common-wealth those of Bridges Calceys Havens and Ports are not of the least Consideration as the Gates that open and let in Commerce and the ways that convey and lead it through the Kingdom And it seemed to me to be of so Publique a Necessity that I did conceive this Learned Piece upon the Laws of Sewers would come seasonably abroad and finde an Entertainment sutable to the usefulness of it at this time when the Countrey is almost become Vnpassable by the late Troubles wherein the endeavor was more to be secured at home from them that were abroad then to Traffique with them If you can sit down to a cold Reading here is one served out to you at my cost all that I shall adde to your Cheer is That I had publique allowance to make the Invitation If the Printer have committed Infanticidium lay the blame upon him but if he have delivered the press of it so imperfectly that it will be only fit to move Pity and to Beg withall the misfortune is mine and I must Keep it Farewel ⧠The chiefest matters in this Book as they lie disposed in each days work of the Reading In the first Lecture THe Readers grave Speech The Causes wherefore he read on this Statute Antiquity of the Laws of Sewers The Extent of this Law The necessary use of this Law The Division of this Law The first Case put for tbe first Lecture The Points of the first Case The Readers Argument upon the first Case The Readers Argument upon this Statute and Commission The Definition of Islands c. What grounds shall be said to be left by the Sea The Readers Tenets thereupon The Shore what Sea-Coasts what Creeks what Arm of the Sea what Diversity between a Shore Coast and Creek Bay Fleet and Mere what A Port what Diversity between Creek Haven and Port. Diversity between grounds gained and grounds left The Conclusion of the Reader upon his first Lecture In the second Lecture VVHat businesses on Land this Law doth Defend and what Offences it Reformeth The Case for the second Lecture The Points thereof both at the Common Law and on the Statute The Argument on the second Case Two Conceits of the Readers Bank what Wall what River what The property of running waters in whom A Sewer what A Gutter what Ditches Pools Ponds what Streams Conduits Springs what Cases put by the Reader upon them Bridges and provision for them Calcey what Goats for what use New Defences Arguments pro con for New Defences The Kings Councels Order What View and Survey is What may be done by Officers of Sewers by Survey only What may be done by Jury What may be done by their Discretion The several degrees of Discretion In what things Commissioners are to be ruled by good Discretion Nine several ways for keeping and repairing Defences 1. Frontage 2. Ownership 3. Prescription 4. Custom 5. Tenure 6. Covenant 7. Vsus rei 8. Township 9. This Law of Sewers Whether one may be Taxed for Tythes by the Law of Sewers or not Whether a Copyholder for his Copy-hold and a Lord for his Freehold of that Soil shall be assessed Four tenets concerning Copyholders What Lands and other things and what persons and in what degree they are to be assessed towards Repairs by this Law in this case 1. High Mountainous grounds by Prescription Custom and Tenure 2. Dean and Chapter c. for an Annuity 3. For Common of Pischary in Fens c. 4. For a Ferry 5. For Herbage 6. For free passage on a River Parks Warrens cum multis aliis The large Extent of the word Tenement Charge on the Level by Commissioners of Sewers nine several ways The Readers Conclusion of the second Lecture In the third Lecture VVHat Law is The Case for the third Lecture This Case divided into three Points at the Common Law and five upon the Statute 1. Point Whether an Office may be Intailed or not 2. Whether it be an ordinary Intail or franck-Mariage and what things incident to franck-Mariage 3. How a Bastard may inherit Land The Sewers a Court of Justice How Courts had their beginning The Reasons that Sewers are a Count. Imprisonment by Commissioners of Sewers In what case Commissioners may Imprison Fine and Amerce The qualities of a Fine Amerciaments what A Distress and the several kindes of it In what place a Distress may be taken Whose goods may be distrained Where property of Goods is alterable without consent Sale of Goods by the Law of Sewers Whose Goods may be sold by this Law Where a Replevin lieth and where not Cases reconciled concerning Replevins A perpetual charge upon Land Sales of Lands For what cause Lands may be sold What Lands are to be sold What Persons and Estates are bound hereby To whom Lands may be decreed by this Law Legal proceedings where Traversable and where not Whether the Laws of Sewers will permit any Exemptions The Readers Conclusion on the third Lecture In the fourth Lecture THree Points at the Common Law and four upon the Statute How a competent Commissioner must be qualified and if not how punished What qualities makes a free Citizen a competent Commissioner The Punishment the Roman Laws did inflict upon Strangers Exile described Abjuration a legal Exile What a man Exiled forfeiteth How many ways a Freeman of a City or Borough may be made What kindes of Habitation the Freeman should be of What be and what be not valueable Substance What Goods will enable one to be a Commissioner and what not What are Hereditaments in this Law An utter Barrister is a fit Comissioner Whether a Woman may be a competent Commissioner within this Statute An Infant above Fourteen and under Twenty one years a Commissioner Whether Laws and Ordinances made by a disabled Commissioner be void or not Ten Impediments or Annoyances this Statute speaketh of viz. 1. Streams 2. Mills 4. Bridges 3. Ponds 5. Fishgarths 6. Mildams 7. Locks 8. Hebbingweres 9. Hecks and 10. Floodgates These Impediments and Annoyances discoursed of To make a Stream Navigable The Readers Conclusion on the fourth Lecture In the fifth Lecture A Short Speech of the Readers A brief Repetition what is handled in the four former Lectures Commissioners of Sewers have power to make constitute and ordain Laws Ordinances and Decrees and the same to amend or make new Things considerable in making new Laws and Ordinances A Law Ordinance and Decree what they are and their difference Laws and Ordinances for sale of Lands how to be perfected and in
left to the King Ratione regiae dignitatis suae whose Office doth as the Philosopher truly saith contain in it great Vertue high Understanding and Divine Wisedom to whose high Government as well our Persons as our Laws be committed and the defence thereof is applied to his grave foresight And truly I have taken upon me to reade on those Laws of Sewers as Mr. Marrow did in former times take upon him to Expound in his reading the Laws of the Justices of Peace hoping this work of mine may prove as acceptable to the Commissioners of Sewers as that of his was beneficial to the Justices of Peace the use whereof being no less commodious to the Commonwealth then that of the Peace being both general Laws of great use and esteem and my self being for many years past a Commissioner in the County of Lincoln I found that these Laws were dark and intricate and came not usually within the reach and understanding of such as were not well seen and studied in the Laws And because I found the use of them to be wondrous necessary I did intend when occasion served me to break the Ice and enter seriously into the Exposition of them And therefore seeing these Laws being in time most ancient in extent most large and for the use most necessary I have with your kinde favor made choise of them to frame my Reading upon wherein if upon your perusal you finde any scapes or errors which may soon fall from Opinion haec amice corrige and such of them as you shall bestow your liking upon hiis utere mecum and this shall suffice touching my choise made of this Statute And as I have formerly declared and delivered the causes which stirred me up and the reasons which confirmed me to read upon this Statute Now I do intend to break it up and I do divide it into these several branches or parts First to make provision to resist the over flowing of the Sea upon the large Marsh grounds lying in the Maritine Countreys which commonly be the surest for soundness the greatest for compass and the best for profit of all the Sheep-walks and Commons of this Realm which take prejudice and loss only by the rage of the Sea Secondly to provide also that the great fresh Rivers and Streams may have their passages made clear and that their Walls Banks and other Defences be repaired kept and maintained whereby the fair delightful pleasant and fruitful Meadows and Pasture grounds which lie in the greatest abundance upon or near the Rivers Brooks and Streams may be preserved from the inundation of fresh Waters which many times annoy them to the great and inestimable damage of His Majesties Subjects which be Owners and Farmers thereof Thirdly whereas Navigation both for the Exporting of our Homebred Commodities and for the Importing of Foraign Merchandizes is the chief inriching of this Nation therefore Ports Havens Rivers and other Navigable Streams and their dependencies be put within the defence of this Law being Ostia janua Regni for that by the maintenance of these the wealth of the Realm is increased and the Inland Cities Boroughs and Towns are made partakers with ease and small cost of the Seas Commodities Fourthly likewise this Law giveth redress and remedy for the removing of such lets and impediments as are either hinderances to Navigation or stops whereby the abundant Waters cannot have their free passage to the Sea And fifthly because in the surrounded grounds there be most commonly the greatest use of Bridges Calceys Passages and Ways therefore this Statute hath taken order for them also whereby his Majesties people may in those places for their persons and their goods have both Salvum securum conductum In these five parts be all the whole materials of this great and worthy Law contained and therefore according to the said division I have framed a Case for the first Lecture upon this Law The first Case A. Leaseth to B. a Mannor on the Sea Coasts for years which hath incrementum decrementum maris by prescription in the County of Chester and the City there where a Commission of Sewers is remainder to C. in Fee Livery is given and taken by Attorneys at full Sea within the view the Sea then leaves One hundred Acres of Land with the Shore divided in part from the continent by a Navigable Haven The Lease expired C. enters the Prince ejects him and the King seizeth this Relinquished ground My Opinion is That the King hath a part the Prince a part and the Subject a part of this ground and that it is all within this Statute but no part thereof within this Commission Points of the Common Law The Points of this Case be three at the Common Law and five by this Statute First Whether Livery of Lands may be made within the view in another County or not Secondly Whether Livery by the view may be given or taken by Attorneys or not Thirdly Whether in this case Livery and Seisin may be made by Attorneys or that of necessity it must be made to the Lessee for years and who must joyn in making of the Letter of Attorney to take the Livery All which Points I must maintain Affirmatively else C. the Subject cannot have any Lands at all Points on this Statute First Whether the English Seas be within this Realm of England and what Interest the King hath there and what Interest a Subject may have therein by custom and prescription and what is meant by the said words Incrementum Decrementum maris Secondly Whose these new Islands be which arise there and wherher they be said to be within the Realm and what Laws govern the same for that it appears in my Case that the ground left between the Sea and the Haven is an Island Thirdly Whether the King shall have all the grounds by His Prerogative or the Subject by the said Prescription or the Prince as participating of both or whether every one shall have a part thereof according to my Conclusion Fourthly Whether the grounds left by the Sea be within this Statute and Commission both or either of them or neither of them Fifthly What a Haven a Shore and the Coasts be in definition and the several properties thereof The Readers Argument And as it comes to my turn I intend to maintain the conclusion of my Case And first of the first Point Livery and Seisin is one of the most ancient approved Ceremonies of the Law which hath been used for conveying of Lands and the Law hath a more respect thereto then to any other And it cannot be denied but that it is the most perfect form of any by the which the Freehold and Inheritance of Lands is transferred from one to another and all Subjects may give and take Lands by this Ceremony but the King only is excepted whose Prerogative is such That as Lands cannot be taken from him as King but by Record so Lands cannot be given
or granted to him as King but by Record And in the same degree is a County Palatine in his County because he hath there Jura Regalis And this Livery and Seisin may be actually and really done and performed or else it may be done within the view of the Lands intended to be conveyed And as touching Livery and Seisin to be actually effected if the Feoffment contain Lands in two several Counties and Livery and Seisin be made in one County in name of both this will not pass the Lands in another county because the Land passeth by the Livery which is local and not by the Deed. But in an exchange of Land in two several Counties by Deed the same is good for there the Land passeth by the Deed. But if one make a Feoffment of a Mannor lying in Demesn in the County of L. and in services in the County of M. these services and so Rents will pass by attornment of the Tenants though they lye in a foraign County and so of an Advowson appendant and such like because those rents and services pass not by the local ceremony of Livery and Seisin but by the ceremony of Attornment which is personal and depends upon the person which is transitory wherein I take this difference That if a Feoffment be made of a Mannor by Parol the Advowson appendant Villains Regardant and Rents and Services by Attornment of Tenants will not pass to the Feoffee till the demesns and Lands be first conveyd But if the Feoffment be by Deed then the Rents and Services will pass by Attornment of the Tenants and delivery of the Deeds before Livery and Seisin be made to pass the demesns Then seeing that Land in one County will not pass by Feoffment by express Livery made in an other County if then the same may be passed and conveyed by Livery within the view is the question of our Case And in my opinion they may because it is a ceremony performed by the eye which is a member or instrument which hath his operation by aspect Tam procùl quam propè But express Livery and Seisin which is done by the hand cannot in reason be extended to another place then where the body is And although the eye be fixed in the head annexed to the body yet like the Sun his beams are carried afar of And this Livery by the view is not a Livery in the County where the body is but properly in the County where the Land lay which was the object of the eye and in this case it is said to be Livery onely and not Livery and Seisin because the Seisin is properly when the party enters and the entry of the party is that which perfects the work which is in proprio commitatu And for authority in the point 28. Ed. 3. fo 11. there is a Case according to my opinion where the Husband at the Church door when 18. E. 3. fo 11. he was to take one to wife he made a Deed of Feoffment of Lands lying in another County to the said woman and then delivered the Deed to her and shewed her the Land then they married and he entred in claiming to her use and these Lands were thereby well conveyed to the said woman by this Livery within the veiw in another County Now it is fit to be declared what view is sufficient for there be two maner of views The one general the other special In the special view every particular piece of ground is to be seen but in the general view it sufficeth to take notice of the grounds by the place they lie in and in my opinion The general view in my Case will suffice For if one make a Feoffment in Fee of a whole Island or of a whole Mannor or Town and make Livery thereof within the view this is good and yet it is not possible to view every particular piece of ground at once for Trees Houses and Hills might so be interposed that the view could not be taken of some part thereof yet notwithstanding veiw of the rest will pass Also if Lands be covered with Water Ice or Snow these will pass well in a Feoffment or Livery in the veiw In Brook Title View plac 101. the Case there may give Brook 101. the rule to our Case for there it is said in a Writ of view It is not necessary that all particulars in Specie should be put in view but to see the fields where the grounds lie promiscuously it will suffice and is a good and perfect veiw Sed est vn auter diversitie concernant veiwe Carsi vn fait Feoffment de B. acre que gist del auter parte dam Mountaine tout hors del veiwe la Liuerey de ceo nest bone sans expres veiwe tamen tout voile passer per veiwe de parte sic in mon case on part ' gist south le floud del mere ceo non obstant passe vt parcel del mannor Ascuns aver teneus ceo Knightley pur vn in 28. H. 8. in 28. H. 8. Dier que Liuercy deins le veiwe doit touts foits este fait in cases de necessity ceo vrging in respect del chose ou del person del chose quia leterre gist del furder side dun grand ewe ou in le ewe ou ne puit oste facile accesse del person quia que le Feoffor ou Feoffee soit lame ou infirme detraher ceo in question Jeo aye mist mon case quia le Feoffment Liuerey fuit ad plenitudinem maris tamen Jeo sue de opinion que Liuerey deins le veiwe puit este fait sans ascun matter de necessity ceo vrging ceo Jeo collect per le liuer de 42. Ed. 3. Fitz. Feoffments 54. when the Son did give back the Lands to his Father as freely as his Father had 42. Ed. 3. formerly given the same to him and this was within the view and it doth not appear that either this Livery or the other made to the said woman in 28. Ed. 3. were made of any necessity urging the same And there be some persons which can neither give nor take by Livery within the view and that is where the Feoffor or Feoffee is blinde So a Major and Commonalty Dean and Chapter or other corporate and politique capacities cannot give or take within the view Some have held a difference that a Parson of a Church might not take by Livery within the view to him and his Successors because that came to him in his politique capacity which had no Eyes but if he were seized in the right of his Church that he might infeoff I. S. thereof by Livery within the view because this was a wrong to the Church and therefore A Conceit was in the power of his natural capacity which had Eyes But the main Point in my Case is Whether Livery within the view may be given and taken by Attorneys and whether the view is so incident to the person that it
the Seas He grants to him bona in mare deperdita super mare emergentia extra mare projecta which be Profits arising on the Sea And all these are said to be per totum Regnum Angliae Ergo the Seas be infra Regnum Angliae In the Eleventh Chapt. de Prerogativa Regis it is declared Quod Rex habebit wreccum Maris per totum Regnum Prerogativa Regis cap. 11. Balenas Sturgiones captos in Mari vel alibi infra Regnum Angliae and this was by the Common Laws before ever this Statute was made for as the King was and is rhe most Excellent Creature within his Realm so the most Excellent things which Land and Sea afford are appropriate unto him And this Statute also proves the Sea to be infra Regnum Angliae and that the profits therein and thereon arising belong to the King by the temporal Laws of England In the Case of Sir Henry Constable in the Fifth Report of Sir E. Cook it is said That Flotsan Jetsan and Lagan are goods Sir Henry Constables Case on or in the Sea and that they belong to the King and the King by his Charter granted them to the Admiral The Statute of the 18. Edward 3. Let the Sea be open to all Stat 18. E. 3. 28. H. 8. Strangers and the Statute of 28. H. 8. Chapt. 15. If any Treason Murther or other Felony be done on the sea coast the Offendors shall be tryed in such county as the King shall appoint by Commission to be directed to the Admiral and others to try the same per Sacramentum duodecem which is by Jury And the Statute 31. H. 6. Chapt. 4. there is a Restraint 31. H. 6. That no Subject do attache any Stranger in amity within this Realm on the Sea Here the Statute Laws are in force on the Seas as appears by the examples but these seem to tye the person only Sir John Davies And in the Irish Reports of Sir John Davies in the Case of the Royal Pischary of the Banne it is said That the Sea is the Kings proper Inheritance And Mr. Bracton lib. 2. Chap. 12. in his Title de acquirendo Bracton L. 2. Ch. 12. rexum dominio setteth forth a prescription in these words Quod I. S. antecessores sui fuerunt quiet ' de Theolonio aliis consuetudinibus dandis per totum Regnum Angliae tam per terram quam per mare and many times in that Chapter he reiterates the same words which is a strong proof that the Sea is infra Regnum Angliae and that the King Governs there by his Common Laws of England for that prescription is a main and material point of the Common Law And the like is alleaged in Sir Henry Constables Case by way of Custome in the Citizens as of Bristol to have Flotsan on the Seas between the high water and the low water marks So I take it I have proved the King full Lord and owner of the Seas and that the Seas be within the Realm of England and that I have also proved it by Ancient Books and Authorities of the Laws and by Charters Statutes Customes and Prescriptions that the Government therein is by the Common Laws of this Realm One Case and one Statute seem to sway to the contrary Lacies Case and that is Lacyes Case where one was stricken on the Seas and dyed on the Land that the Common Law could not try this murther It is true because that tryal was to be by Jury which must come out of a proper county which could not in this case because the Sea was not within county ground and so no Jury could be summoned there And I acknowledge that the King ruleth on the Sea by the Laws Imperial as by the Roll of Oleron and other but that Le Roll de Oleron is only in the particular Case of Shipping and for Merchants and Mariners But the King hath neither the properties of the Sea nor the real and personal profits there arising but by the Common Laws of England and in proof thereof the Book 15. and 16. Eliz. in Dyer where the grounds gained from the Sea pertained to the Queen which must 15. 16. Eliz. Dyer needs be by the Common Law of England for no Law gives the King any soil but only the Common Laws of England so this is sufficient proof for the real profits and for the personal profit the Charter of the Admiralty and other Cases aforesaid make it manifest And there is a Statute made in 1. R. 2. Chapt. which restrains 1 R. 2. Rast Admiralty the Admiral that he do not meddle with any thing done within the Realm but on the Seas by which it may be collected that the Seas be not within the Realm of England But in my opinion the intent of that Statute did rather limit the Admiral how far he should extend his Jurisdiction then any way to set forth the bounds of this Realm wherein my conclusion herein is That my Statute hath his extent within all the Realm of England and that English Seas being within the Realm be within the bounds of my said Statute of Sewers and that Statute Law is in full power on the Seas as by the Cases and Statutes mentioned formerly doth appear Of Islands BEcause in my Case in matter though not in express De Insulis words there is an Island therefore it comes now fitly in turn to declare whose the same is in ownership and what Laws the same is to be governed by And first of the definition thereof Justinian in Suis Institutionibus saith that Difinitio Insule Insula est locus undique circumdatus aquis pag. 153. And with this agreeth Britton in his Title of Purchase England of Anglia it self is not Insula because it is not undique circumdatus aquis But England and Scotland be one intire Island and the most Scotia famous in the whole world England take it per se est peninsula that is penè Insula almost an Island for on all parts it Peninsula joyns to the Sea but towards some parts of Scotland Gernsey and Jernsey be Islands on the Sea but it seems by the Resolutions in Calvins Case 7. Report That they be Gernsey Jernsey not within the Realm nor governed by these Laws because the King hath them by His Title of France The Isle of Man was in times past a petty Kingdom and had a King but he was onely as a Viceroy and under the Man King of England as by a Record Where Artold King of Man made suit to the King of England to come into England but whether Man be within the Realm or not seems to be put without question in Sir Edward Cooks Case of Calvin and by Kelwayes Reports 11. H. 8. that it is not for there an office found after the death of the Earl of Darby by a Writ out of the
Chancery 11. H. 8. Kelwayes R. of England was avoided because as the said books do affirm Man was not within the Realm of England but under the favor of these books that is no necessary cause to avoid that Office for in my Opinion the said Office of the Earl of Darby was void quia in Man breve Domini regis non Currebat and so in the county of Palatine of Chester breve Domini regis non Currit 161. tamen Committatus Cestriae est infra Regnum Angliae Mr. Cambden in his History de Insulis is Cambden of Opinion that Man was a Member of the Realm of England and therein he hath these words That Man is an Island scituate in the midway between England and Ireland Sed de qua utrique terrarum applicari de Jure debuerat ab antiquis non ambigebatur demum in hunc modum lis ista quievit quoniam advectos perculi Causa venemosos haec terra vermes admisit ergo Eam Britannis applicandum Censura Communis dictavit by which it may appear that the Isle of Man was within the Realm of England or at the least a member thereof But I do take the Isle of Wight Originally to be parcel of England and is a part of the County of Hampshire and was Wight as it were divorced from the continent as was Cecily from Italy the one as Poets feign was parted from the continent or main Land by an Earthquake the other as is imagined by the rage and violence of the Sea Insula vectis inquit Cambdenus in suis insultis Britannicis Fol. 707. est pars Commitatus Cambden 707. Hamtoniae à Continente Britanniae avulsa est ut Cohaesisse uvidebatur for many do imagine that it was torn from the main Land by the violence of waters as of late years parcel of the Spurnhead in Yorkshire which before did adhere to the continent was torn therefrom by the Sea and is now in the nature of Island Yet the same is within the Realm of England and remains parcel of Yorkshire and the like is said of the Island cald Silly scituate Many other ancient Islands there be which being in the English Seas be parcel of this Realm which I will pass over to avoid prolixity But in our Case a new Island is risen up in the English Seas to whom the same in point of property and ownership Nova Insula shall belong and what Laws the same shall be governed by comes now justly to be disputed of Justinian in his Institutes De rerum Divisione saith Quod insula in mari nata Justinian ut Delos est primi occupantis And Britton one of our ancient Britton 86. Writers in his book Titulo Purchase fol. 86. saith That if a new Island rise up in the Sea datur primo occupanti and agreeth fully with Justinian therein but saith he If it be taken or divorced from the continent then it continueth to the former owner but clearly our Law of England doth not agree with either of those Authors in the point of ownership For if as I have formerly delivered it the Sea in property possession and profit tam in aqua quam in solo belongs to the King in the right of His Crown of England as I take the Law clearly to be then it followeth as a consequent That the grounds which was the Kings when it was covered with waters is His also when the waters have left it For our Law admits not any thing either real or personal to go primo occupanti but when an owner cannot be found the Common Law gives it Domino Regi as Waifs Strays Wreck of the Sea Treasure found Escheated lands and such like so that my opinion is conceived in this that in point of ownership and property the said new Island is the Kings But yet I am likewise of opinion That a new Island risen from the bottom of the Sea although it be within the Realm yet it is neither within county Parish nor Town of this Realm till the King by his Edict or Proclamation have so declared it There may be Islands also within the Land compassed about with fresh Rivers as the Isle of Axholm in the county of Lincoln and Sheppey in the county of Kent and divers others But Mr. Bracton in his Book de acquirende rerum Bracton Liber 1. cap. 2. dominio doth very well deliver the Law concerning his new Islands which arise in great Rivers his words be these Habet etiam locum eadem species accessionis Insula nata in flumine quod si quidem medeam partem teneat Communis est eorum qui pro indiviso ab utraque parte fluminis prope ripam praedia possident pro modo latitudinis cujuscunque fundi que latitudo prope ripam sit que si alteri parti proximior sit eorum est tanta qui abea parte prope ripam praedia possident Si autem insula in Mari nata sit quod raro accidit occupantis fit Domini Regis non tamen credas proprium alicujus agrum informam insulae redact insulam esse ut ecce flumen dividatur in superiori parte circuit agrum alicujus demum infra in quo casu ejus erit ager cujus prius fuerat Cavendum quoque erit in metienda vicinitate insularum quia potest quis in hoc de facili decipi ponatur igitur punctus quod in medio inter utrumque agrum secundum hoc si insula Citra punctum sit vel hujus tant ' vel illius tant ' erit si autem sit citra punctum in ipso puncto ultra tunc proindiviso Communis erit ut tantam mihi de ipso insula cedat qua continentur in medietate puncti usque ad agrum meum Si autem insula rotunda inveniatur hoc observetur quod omnè quod propinquiùs est mihi cedat ita vicino cedat quod ei vicinius erit But whether the Laws of this Realm be of force in the said new sprung up Sea Islands or not is a question It appears in Calvins Case and in the Case of the Tanistry in the Irish Reports That if the King conquer an Island or Nation the same is no part of England nor the Laws of England there in force till the King shall so declare the same but the own proper Laws seem to be in force there but if the King conquer a Nation from an Infidel there the antient Laws of that Nation upon the conquest are extinct but the Law is not so of another Christian Region as Callis Callis Guyen Bulloign Ireland Guyen Bulloign and the like And although Ireland was under the obeysance of the King yet the Laws of England were not there in force till the King so declared the same And although Wales before the Reign of E. 1. was within the Fee of the King of England yet was it
the Exposition is not to be tyed hereto so notwithstanding this exception these grounds though gained since the Statute are within the relief thereof The second cause wherefore these new grounds should not be within this Law is Because these Lands be increased beyond the bounds since the making of these Laws and so it may be alleaged that they cannot extend to the new inlargement for Mr. Plow in his Com. fol. 129. saith That Laws Plow Com. and Priviledges tied to a certain Place or Precinct cannot be fol. 129. extended or inlarged beyond the ancient Bounds although the Predinct be inlarged As the Case in 7 H. 6. fol. 32. 7 H 6. fol. 32. where in a Nativo habendo a Villain had remained a yeer and a day in London which was ancient Demesn and there was a priviledge that every Villain and Bondslave which had remained a day and a year in London the Lord might not seize him and the Villain pleaded that he had remained a year and a day there and so took himself to be within that priviledge but because since the said liberty granted the bounds of London were much increased therefore it was there held that the said liberty and priviledge did not extend to the new inlargement And the Case is also put in the said Coment that the Bishop of Durham had divers liberties in his Lands lying between the two Rivers of Tyne and Tese and after he purchased other Lands there the said liberties did not extend to the said new purchased Lands and the like Law is if one have a Warren in his Mannor and Lands in Dale after he purchase more grounds there his Warren doth not extend unto them And so where one had by Charter the Lands of persons forfeited for Treason he could not have by the said ancient Charter Lands forfeited for Treason by Tenants in Tail because the forfeiture of them was given by a late Statute since the Charter but his non obstantibus I am of Opinion That this Statute I now treat on extendeth to these new gained grounds and I take a difference between a special Law of Priviledges and Liberties which is stinted or bounded either by Statute Charter or Custom the same can by no construction be made to exceed the bounds but the general Law of this Kingdom as this Law of ours is the extents thereof be as large as the whole Realm is and they be not tied to stinted limits as particular private Charters and Customs be and so I conclude That in point of extent this Statute of 23 H. 8. is tied to no other bounds then to the Kingdom of England Diversity between grounds gained and grounds left THe third matter is that which I have grounded the conclusion of my Case upon and that is Whether the grounds in my Case newly left by the sea to the shore and the shore be such grounds as be within this Commission And in my opinion they be not And therefore to maintain my opinion herein I take a difference between grounds left by the Sea and grounds gained from the sea for grounds left are of no value and bring forth no fruit or encrease at all but the uppermost part thereof are sand which these Laws take no hold of for the Commission extends only to grounds won and made profitable for the Commonwealth of this Realm which Terra relicta yield not for no profit at all thereof ariseth till the sand be inned and gained and these Laws made the Commissioners Savers and not Gainers and therefore did extend the Commission but to the utttermost banks and walls and left the shore as grounds possessed by the sea and so be put pro in defenso by this Law and therefore I do make my conclusion as followeth First That the Seas Creeks and Bays are all within this Statute in point of extent but that they and the shores and the relinquish'd grounds be all of them out of this Commission of Sewers to be dealt withal thereby Secondly That Ports and Havens are totally the waters as well as the walls and banks thereof within the Commission of Sewers Thirdly The shore and grounds left by the sea when they are put as in Gainage are then and not before within the power of the Commission of Sewers Fourthly although the grounds left by the sea are not in point of defence within the Commission of Sewers yet a wall or bank may be thereon raised for the aid and succor of the countrey but not for any cause where the defence extends but to themselves And although the grounds that have been gained from the sea in the county of Lincoln and elswhere in this Realm yet that was done at the labor of private men and not by the Commission of Sewers which aims at the general good and not at private Commodities So that Super totam materiam I am of opinion with the conclusion of my Case that is That the said new Island is the Kings the grounds left to the shore pertains to C. the subject and that because they are all of them within the Realm of England they are therefore within the extent of this Statute But in regard they are grounds left only and not gained nor made profitable for the Commonwealth of this Realm they are not therefore within this Commission And so I conclude my Argument as I did my Case in which I hope I have neither injured the Subject in his private Inheritance nor wronged Prerogative in any point Finis primae Lecturae Initium secundae Lecturae FOrasmuch as the first day I went perambulation about the Sea and of all which belong to her Empire and Dominion wherein I did survey her bounds her qualities and her government Now I do intend to go a progress through the Land and to take a view of the fair goodly Rivers which make their voyage to the Sea for these my Statute hath taken into her protection And this second day I purpose to call a Court of Oyer and Terminer And I do intend with your gentle patience to examine all the particulars there arising And because the said Statute of 23 H. 8. must be my chief guide to direct my fairest passage through these uncouth ways I will pray aid thereon and I will now proceed to declare what business on Land this Law hath undertaken to defend and what offences it purposeth to reform And accordingly the said Law doth distribute it self into these particular Branches I. First Into matters of defence this Statute maintaineth are these following viz. 1. Walls 2. Banks 3. Ditches 4. Gutters 5. Sewers 6. Goats 7. Calceys 8. Bridges Secondly Into matters of Offence which this Statute termeth Le ts Impediments and Annoyances which are to be put down or reformed as cause shall require 1. Streams 2. Mills 3. Ponds 4. Fishgarths 5. Mildams 6. Locks 7. Hebbingwers 8. Hecks 9. Floodgates 10. Other like Lets and Impediments And to the end I might fully
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
Arguments as I did my Case that the new Bank new River and old Sewer were well decreed but that the assess is void in toto in qualibet parte Finis secundae Lecturae Lectura tertia IN my two preceding Cases the main body of this great Law were contrived and therefore I took a greater larger compass in my Arguments therein then otherwise I would have done and I am now come to the execution of these Laws wherein the life and livelihood of all Laws consist And it may well be said of execution as Mr. Plowden in Zouch and Stowels Case Plow com in his Commentaries fol. 358. saith of a fine that it is finis fructus exitus effectus Legis so is execution the fruit issue and end of the Law and without it nothing is effectual and till it come nothing is material for to begin a Suit and stay at the declaration were a fruitless enterprise and to proceed on to Judgement and to go no further were like a Traveller which undertook a journey and returns or sits down without further moving before he came at the end of his intended progress Law as Cicero saith is but mutus Magistratus the Magistrate is Lex loquens but I shall adde something which Cicero upon the matter is the sum of all things that is That executio est Lex agens And because I esteem the time to be almost lost or mispent which is prologued out in preambles I will therefore now briefly divide this part of this Statute into these insuing heads Either in punishing the body and person of the delinquent with Imprisonment Fine or Amerciament Or in doing execution upon the offendors goods By distress or by the Absolute sale thereof Or otherwise in extending upon the Real Estate By charging the Land in perpetuity or temporarily or by the absolute sale thereof The true and due execution of all these in a just legal equal and qualified decree requireth of all other parts of Law this greatest and truest discretion consideration wisdom and judgement of the Commissioners And I take it it may stand as a ground infallible that there be as many degrees of punishments as there be offences It behooveth therefore the Commissioners to be circumspect that they apply to every offence his due punishment for it is injustice to punish the offence committed in a wrong degree to pronounce a Traytors judgement upon a Fellon or a Fellons judgement upon a Traytor is grand misprision to imprison the body or to fine the person where an Amerciament is onely due is not onely injustice in the Commissioners but thereby also their discretions are to be drawn in question and censured And seeing the Statute doth so much lie upon discretion of the Commissioners as in many parts of this Law it is mentioned It seemeth the Parliament did give them to understand That such as were to meddle in those affairs should be both discreet and wise and should strive to become learned in those affairs And therefore for the better furnishing of them with the true understanding of the said parts of this Statute I have framed a Case thereupon which doth give just occasion to treat fully of them all The third Case A. Gave the Office of a Ranger of a Forest to which a Mannor is belonging to I. S. Abnepti and to the heirs males and females of their bodies in Franck mariage and dieth B. and C. their legitimate son and daughter and D. their bastard daughter enter and dieth in seisin and E. her daughter enters The Commissioners of Sewers at a Court make a Law That a Goat shall be repaired and assesse severally A. B. C. and E. to do it upon surmise that they all had benefit B. and C. refuse to obey for which B. is imprisoned and C. is fined A. and E. tender pleas of discharge which are refused and they are severally amerced and a Law made that A. should be distrained and for non-payment the distress to be sold without alowance of Replevin and the interest of E. should be also sold because she hath nothing to be distrained by I conclude the Commissioners of Sewers have done due Justice upon the Offenders in every part of this Law Argumentum Lectoris The passages of this Case are both at the Common Law and by this Statute The Common Law is the means but the Statute is the matter I must insist upon But seeing the Statute Law can receive no due construction but by the rules of the Common Law I have therefore made a harmonial composition of them both in my Case and I do distinguish and branch out my Case into these ensuing points Points at the Common Law Imprimis Whether this Office may be intailed or not Secondly Whether it be an ordinary Intail or a Frank-mariage Thirdly Whether the Bastard be inheritable to this Estate or not Points upon the Statute First Whether the Commissioners have a Court or only the strength of the Commission without a Court Secondly Whether Commissioners of Sewers have power to imprison and to fine if so then whether they have well behaved themselves in this Case or not Thirdly Whether this Law doth admit of any pleas and especially of pleas of discharge Fourthly Whether the Law made touching the distress be well made because it seemeth prima facie to oppose a main point of the Common Law in denying of Replevins Fifthly and lastly if the Law made for sale of Lands of Tenements in Tail be warranted by this Statute or not These be the materials of this Case wherein you may perceive by the beginning what you are to expect in the sequel and conclusion of my argument These Points upon the Statute are of great consequence and importance and tend much into the powers of these Laws In the handling whereof according to my wonted fashion I intend to maintain the Affirmatives of my Case First Point I did not intend it a point of any importance in my Case Whether Land might belong to an Office for that in the 1 H. 7. fol. 28. in Sir Robert Crofts Case it is resolved it might For there Land did belong to the Office 1 H. 7. of a Forester and might belong to the Office of the Warden of the Fleet and also to a Corody which was no Office and these as well as to a spiritual Office Parson Vicar Prebend or such like but whether or no these Lands might be parted from the office by alienation I thought that an argumentable point in 6 H. 8. Dyer f. 2. Empsons case it is said 6 H. 8. if the King create a Duke grant to him an anuity to maintain his Dignity that Annuity was so incident to his Dignity as it could not be severed therefrom and so of Lands belonging to a Parson Vicar Bishop or such like because they were given to the maintenance of them in their places and therefore if these were severed they might be recontinued
for a Distresse taken in the Kings Court for that they be of a superior authority and jurisdiction to these inferior Courts of Sewers And therefore the Replevins which our Statute aims to give way to are intended to be taken out of the Kings Courts which in Law and Justice ought to be obeyed and not from the Sheriff or his Officers by vertue of their Office only But in my case the Commissioners made a Law that the goods of A. should be sold without allowance of Replevin which is a good Law upon the distinctions and diversities aforesaid that is that A. who was the person assessed might not have or take a Replevin because he was a person bound expresly by the Law nor that the Sheriff or his Officers Ex Officio might grant a Replevin to deliver the same being under the power of this Law of Sewers But the Kings Courts at Westminster may in those cases of Sewers deliver the Distresses and this construction made of this Statute as I take it stands with Law and reason And in the 31 Ed. 3. Brook Replevin plac 60. the Case is put a man did grant to A. B. a rent out of his grounds 13 Ed. 3. with power that if it were behinde that he might distrain therefore and detain the Distresse against gages and pledges and yes it was adjudged that if the Rent were behinde and the grantor distrained he could not detain this Distresse against the Replevin Yet here were the direct words of the party himself to the contrary but his words could not overrule the Law So that upon all these matters I hold these Tenents following Imprimis To make a general Law to restrain all Replevins granted either from the Sheriff or the Kings Courts is no good Law or Ordinance of Sewers for that Replevins de jure are in such cases grantable out of the Kings Courts and such a general Law savors too much of oppression in stopping up the Gates of Justice Secondly for a Sheriff or his Deputy to grant and award Warrants of Replevin Ex officio to deliver goods or cattle distrained and detained for a Tax and Law of Sewers is in my opinion against Law and need not to be obeyed for that the Distres was Sub protectione superioris Curiae which is of a higher degree then a Sheriffs Ministerial Warrant Thirdly if a Distresse be taken and sold for a Sesse of Sewers a Replevin lyeth against the buyer for by the sale the goods and cattel were put out of the protection of the Court of Sewers Fourthly if a Rate or Tax be imposed by the Laws of Sewers upon I. S. the goods of Iohn a Downs be taken therefore on the ground of I. S. which were charged I. D. may sue a Replevin of his said cattel from the Sheriff for that he nor his goods were not expresly bound by the Laws of Sewers Fifthly a Replevin lyeth out of the Kings Courts of Westminster to deliver a Distresse taken and detained by the Laws of Sewers for that they be Courts de altiore natura Sixthly a Distresse taken by a Lord on his Tenant for not repairing a work of Sewers which by the Tenure of his Land he ought to do and repair the Tenant may sue a Replevin from the Sheriff Ex officio to deliver the Distresse for that this Distresse was not taken or detained by Warrant Judgement or Decree of Sewers Seventhly If upon a Judgement given in the Kings Court or upon a Decree made in this Court of Sewers a Writ or Warrant of Distringas ad Reparandum or of that nature be awarded and the parties goods be thereby taken these goods ought not to be delivered by Replevin to be taken either out of this Court or out of any other Court of the Kings because it is an Execution out of a Judgement Eighthly although one grant a Rent out of his Land with clause of Distresse and with Grant or Covenant that the Grantee may distrain and detain this Distresse till he shall be satisfied his Rent Yet a Replevin lieth in that Case A perpetual charge SO now I have fully and at large declared my opinion touching Distresses and Replevins wherein I hope I have fully satisfied the first point of my Case I intend therefore now to proceed to the sixth point which concerns charges and sales of Lands to be made by the Commissioners of Sewers by the power and authority of this Law And first I suppose the question may be extended to this that is Whether the Commissioners of Sewers can impose a perpetual charge upon Land to repair a work of Sewers for ever by the power of these Laws I do here acknowledge that this is a knotty Point yet something may be alleaged in maintenance of this Opinion Affirmatively For in the parts of Holland in the County of Lincoln almost every one knows which part he is to repair and maintain in perpetuity And Experientia est optima interpres rerum And it appeareth by the Charter of Romney Marsh pag. 12. That the use there was to impose perpetual charges on singular persons Char. Romney Marsh pag. 12. For the words there be these Juratores per eor ' sacrament ' mensur abunt per perticam omnes terr as Tenementa quae infra dictum Mariscum periculo subiacent quibus mensueration ' factis viginti quatuor per communitatem prius electi jurati habito respectu ad quantitatem Walliar ' terrar ' Tenement ' quae periculo subiacent per eor ' Sacramentum ordinabunt quantum ad predictarum Walliar ' sustentationem reperationem faciend ' sustinend ' ad quemlibet pertineat ita quod proportion ' acrar ' terrar ' periculo subiacent ' singulis assignetur sua portio perticar ' predict ' assignatio fiat per locos certos ita ut scietur ubi per quae loca ad quantum singuli defendere teneantur These words in this Charter seem to be plain That by the Laws established in Romney Marsh the Commissioners had power to assign to every man his portion to repair in perpetuity but I finde no such words in our Statute And whereas it may be said that our Commissioners have power to make sale of the Lands Ergo They may charge them perpetually but this is a non sequitur for that for the sale they have expresse Warrant but not so for the charge And powers and authorities must be duly pursued and are not to be taken by equitable or argumentable collections or implications so that it may seem the Laws of Sewers were never held so perdurable as to binde mens Lands with perpetual charges And therefore this difference I take That by the Custom of a town or country every one may know his particular portion which the owners of grounds are obliged and bound to repair perpetually but without such a Custom it hath been held That the Commissioners of Sewers cannot binde any mans inheritance to a
perpetual charge by any power or authority given by this Statute but in the said case of Romney Marsh the Custom there maintained this point yet Not a bene verba hujus Statuti which be these viz. And to make and ordain Statutes Ordinances and Provisions from time to time as the case shall require for the safegard conservation redresse correction or reformation of the Premises and every of them and the parties liable to the same necessary and behoofful after the Laws Customs of Romney Marsh in the county of Kent or otherwise by any ways or means after their own wisdoms and discretions These be the words and this is the clause which must make good this perpetual charge for that it doth formerly appear that such like Laws and Customs there were in Romney Marsh as this is and therefore I may conclude this point that the Commissioners in imitation of the said Ordinance of Romney Marsh may make Decrees to binde Lands to perpetual charges Yet Sir Edward Cook in Keighlies case sets it down as resolved That the several Commissioners of Sewers throughout all England are not bound to pursue the Laws and Customs of Romney Marsh but in case where some particular place within their Commission have such Laws Customs as Romney Marsh hath there they might pursue them But in my own opinion the Commissioners may if they please make Ordinances and Laws like to those of Romney Marsh where there hath not been any such use and the words of the Statute as I take it will bear that construction and the said opinion of Sir Edward Cook is not directly against this And upon Decrees for sales of Land it is usual in these Decrees to binde those Lands to the perpetual repairs Sales of Lands THe words of the Statute which be made for sales of Lands be these Provided always That if any person or persons being assessed or taxed to any lot or charge for any Lands Tenements or Hereditaments within the Limits of any Commission hereafter to be directed do not pay the said lot and charge according to the Order and Assignment of the Commissioners having power of the execution of the said Commission c. by reason whereof if it shall happen the said Commissioners for lack of payment of such lot charge to Decree and Ordain the said Lands and Tenements from the owner or owners thereof and their heirs and the heirs of every of them to any person or persons for term of years term of life Fee simple or Fee tail for payment of the same lot and charge Then every such Decree and Ordinance so by them ingrossed into Parchment and certified under their seals into the Kings Court of Chancery with the Kings royal assent had to the same shal binde al and every person and persons that at the making of the same Decree had any interest in such Lands Tenements and Hereditaments in use posession reversion or remainder their heirs and Feoffee and every of them and not to be in any wise reformed unless it were by authority in Parliament hereafter to be summoned and holden within the Realm And also that the same Laws Ordinances and Decrees to be made and ordained by the Commissioners or any six of them by authority of the said Commission shall binde as well the Lands Tenements and Hereditaments of our Soveraign the King as all and every other person and persons and their heirs and such their interest as they shall fortune to have in any Lands Tenements and Hereditaments or other casual profit advantage or commodity whatsoever they be whereunto the said Laws Ordinances and Decrees shall in any wise extend according to the true purport meaning and intent of the said Laws This Clause or Proviso was strangely placed in this Statute as if this Statute had not been the first Father of it and as if this Law had made some addition to a former Law But I take it that this Statute was and is the first and only Law which gave sale of Lands in cases of Sewers and this Clause stands upon these four pillars Imprimis for what cause Lands may be sold by the Commissioners of Sewers Secondly what Lands are to be sold within these Laws Thirdly what persons what Estates and Interests are to be bound thereby Fourthly to what persons these Lands may be sold or decreed The Statute is If any person sessed do not pay whereby it is manifest that the Lands are to be sold for sesses and charges imposed by the Commissioners which lyeth in payment only and they may not be decreed away for any other cause or matter And therefore if one hold his Land to repair a Wall Bank Sewers or other work of Sewers and he neglect to repair the same the Commissioners of Sewers cannot for this cause decree the Lands away from the owner because this charge lay not in payment And I cannot gather out of the words of this Statute that Lands can be decreed for any cause then for Non-payment of a Lot Sess or Charge by reason this word Payment is reiterated three or four times in this branch of the Statute and no other words be coupled with it to infer any other or larger exposition If I. S. do hold his Lands of the Lord of a Manor by the payment of Twenty shillings yearly or other sum towards the repairs of a work of Sewers and he do neglect to pay the same whereby the work is unrepaired although this is a charge which lyeth in payment yet because it grows due by Tenure by the Common Law and was not imposed by the force of this Statute therefore the Lands of I. S. cannot be decreed from him by the Non-payment thereof by the tenor and vertue of this Law of Sewers But if the Lands of one be generally charged to repair such a Wall or other work of Sewers by Prescription Covenant or otherwise and the Commissioners impose a sesse and rate upon him to repair it and he do not there in this case although the charge was by the rules of the Common Laws yet because the sesse and rate was set upon him by the power of this Statute I am of opinion that for neglect of payment the said Lands may be sold by the decree of the Commissioners of Sewers So if one do hold his Lands for the payment of Twenty shillings to repair a Bank and the Commissioners of Sewers do order the party to pay the Twenty shillings at a time by them prescribed not being contrary to the usual days of payment and he do neglect to pay The Commissioners may decree his Lands from him because this charge by reason of the said Order had got the force and power of this Statute If a charge be generally laid upon a Township Hundred or Rape which is not paid according to the Commissioners Order no Lands can be decreed in this case because no persons or Lands be in this case particularly charged and the
sit Commissioners by this Statute for they have these Lands in eorum usu during the time they continue in their places which in intendment of Law is for their lives but yet by the intendment of Law they are not to sit in the execution of any humane affairs and therefore seeing their persons are out of the intendment of this Law so likewise should their Church livings be but this is but a conceit for although they be not persons having these Lands within the Statute of 32 H. 8. of Wills which is a having to dispose yet they may be within our Statute which is a having to retain If an Executor have a Villain for years which purchaseth Land of Forty Marks per annum he may sit in the execution of this Commission for till his Lord enter he hath them to his own use but if the Executor enter then neither the Villain nor Executor can sit a Commissioner by this Law If an Alien purchase Lands of sufficient value in Fee he in respect of his person is a disabled person to sit neither is he a person having Lands because he is not seised thereof to his own use but to the use of the King But if he be made a Denizen then in his person he is made capable The Warden of the Fleet who hath Lands belonging to his Office may in respect thereof sit a Commissioner by this Law But shall a Termor or Lessee for years of Land of good value be thrust out of Commission and be counted neither a sufficient Landed man nor his Term and Lease to be accepted moveable substance and not only so but that his Farm shall be a further disablement unto him as the Statute of 13 El. cap. 9. seemeth to purport the words of which Statute be That no Farmer or Farmers for Term of years of any Maners Lands or Tenements lying or being within the Precincts or Limits of any such Commission of Sewers which be or which hereafter may be ordered and chargeable by any Laws Ordinances and Constructions made or to be made by vertue of any such Commission wherein he or they shall be named or appointed Commissioner or Commissioners not having Estate in Freehold within the Realm of or in Manors Lands or Tenements of the yearly value of Forty pounds shall any time hereafter have power to sit or in any wise intermeddle with the execution of such Commission or Commissions during the time he or they shall continue or be such Farmer or Farmers of any such Maner Lands and Tenements and shall not have Estate of Freehold as aforesaid but that every such Commission having respect only to every such person or persons for such and so long time as he or they shall be or continue Farmer or Farmers of any such Manors Lands or Tenements shall be denied and judged in Law as void But yet in the closing up of that Statute of 13 El. there is a Proviso to this effect Provided always that it shall be lawful for any Commissioner being also a Farmer and not having Lands or Tenements to the clear yearly value of Forty pounds of Freehold to sit by vertue of the said Commission and have his voice and full authority with others to make and establish Ordinances for Sewers according to the Tenure of the Commission touching and concerning all Lands and Tenements within the Precinct of every such Commission other then such Lands and Tenements as he or they for the time hold and enjoy as Farmer as he or they might have done before the making of that Statute but he could not have sitten in execution of this Commission before the making of this Statute unless he had besides his lease Lands to the value of Forty Marks per annum And therefore a Lease for years is no inablement at all but a disablement as this Statute declares But the times when this having of Lands c. will suffice to qualifie a Commissioner to sit within this Law is now to be considered of wherein I am opinion that the When having must be referred to the Then sitting For the words of the Statute be That none take upon him to sit not having Lands to the yearly value of Forty Marks so that if he have not Lands of that value when he is first made a Commissioner yet if he have so much when he sitteth upon the Commission it will satisfie this Law and if once he have Land of that value and sitteth and after sell the Land away or if they be evicted from him he is then disabled to sit as a Commissioner by this Statute And so if he were but Tenant for the life of I. S. and I. S. dieth he ought not to sit In 12 H. 7. 7. a Juror which was to pass upon tryal of Land was to have Forty shillings per annum of Freehold and 12 H. 7. 7. after he was impanelled and before he was sworn he sold away his Land and when he came to be sworn he was challenged for want of Freehold but the chalenge was disalow'd for after he was impanelled his land though after sold away was chargeable with the issues which he after might lose in that matter and with this agreeth 14 H. 7. 2. by Frowick But our Statute is more precisely penned which is That none do presume to sit unless he have Lands of that value or be c. therefore when he sits he must have the Lands And if A. do bargain and sell his Lands to B. by Deed intended of that value and before the Inrolment of the Deed B. do sit as Commissioner and after the Deed is Inrolled yet this doth not qualifie his offence and the relation of the working of this Deed doth not assist him to take off the penalty of this Law Also a man disseised is during the Disseisin disabled to sit for he had not then power to devise the Lands by the Statute of 32 H. 8. of Wills for that Statute doth as ours doth use the word Having in presenti and not in futuro And thus much I thought convenient upon this occasion to deliver my opinion when the Commissioner must have his Lands of Forty Marks per annum to inable him to sit as a Commissioner within this Statute To Treat of the utter Barister I need not for when he hath taken the Oath mentioned in the Statute he is an absolute and compleat Commissioner within this Law to all purposes although he have neither Lands or Goods according as the Statute appointeth others to have The second question The second question in my case touching this Statute is Whether the Countess of Warwick be a compatible Commissioner within this Statute Although it is uncouth in our Law to have women Justices and Commissioners and to sit in places of Judicature yet by the Authorities ensuing you shall finde this a point worth insisting upon both in Humane and in Divine learning for in Genesis Chapter the first after the creation
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
purposes to make any order or decree to relieve the Town of A. with waters from B. for this Statute makes but two uses of Rivers Sewers and Streams the one for draining the other for sailing and being for neither of these purposes the Commissioners have no power to deal therein But if two towns do adjoyn and in either of them there is a River Navigable and by accident one of them is dried up and the other aboundeth with waters more perhaps then there is necessary use of I am in the case of opinion that the Commissioners of Sewers have power by the Commission to make a Law or Ordinance to relieve the River which wants waters out of the abundance of waters which the other River hath in help and supply of Navigation But put the case that I. S. keeps Boats for his own necessary uses and occasions and for no other purpose the Commissioners have no warrant by their Commission to relieve I. S. with waters for this his own private use for that their power is the Republike Yet if I. S. hath used with his Boats to carry and recarry for the common use of the people in general then he is within the relief of these Laws The new Stream and cut which was now of late made and cast by Mr. Middleton from Ware to London could not have been done by the power of these Laws because it was not made for the draining or sailing but for houshold affairs and therefore special Statutes were enacted to begin continue and perfect that work in 3 4 Jac. Regis and after the stream was effected these two Statutes brought the same within 3 4 Jac. Reg. the power of these Laws And now seeing my Law hath brought me in my argument and discourse among the things defended by these Laws I shall now make a little digression from my Case to treat of Bridges and Calceys and Goats the proper inventions and works of mens hands and pertinent to this place to be treated of by the order of this Statute and they be three material instruments which this Statute by name hath been careful to take order for Bridges BRidges are diversly taken in these Statutes for some are thereby to be maintained and other some are to be extirped or reformed as lets and impediments wherein I think it not amiss for instruction to open some other leading Statutes which have provided for them The first Statute of Bridges is in Magna Charta cap. 15. Magna Charta cap. 15. nulla villa nec liber homo distringatur facere pontes nisi qui ab antiquo de jure facere Consueverant tempore Henrici Aui ' nostr ' this word facere is to be construed in the sence of Reparareor Manutenere for other construction it cannot have And if this Statute should be in force I take it that it would abate much the power of the Commissioners of Sewers for it seemeth by the letter of it that either no Bridges were to be repaired but such as were made in the time of H. 2. and before H. 2. neither should any be bound to repair them but such as in His time had then used and were bound to repair them but this Statute is neither repealed nor must be abridged as not to extend to Bridges made sithence and I take it under favor that it stands on surrounded grounds which this Statute hath to do with as also for such Bridges as the Statute of 22 H. 8. cap. hath power over which are Bridges 22 H. 8. standing on High ways for both these Statutes do in my Opinion oppose the said Statute of Magna Charta Howsoever Sir Edward Cook in his Cases of the Isle of Ely Case of the Isle of Ely recites the said Statute as it were in force at this day and if so then the exposition must be made as I take it that all Bridges made and erected since are out of the inhibition of that Statute or else that Statute is totally repealed For otherwise all Bridges builded since should not be repaired because no person or town should be obliged to do them And then were the power of Commissioners of Sewers almost altogether inhibited touching Bridges and their hands closed up for medling therewithal but I take this Statute of Sewers in full strength to deal with such Bridges as come within the reach of it Bridges within the Law of Sewers are such as lye on or near surrounded grounds especially if they be not only placed there for free passage but also for strength to defend the violence of the waters as many of this kinde be viz. London Bridge Rochester Bridge the great Bridges at Lincoln Boston Bridge and the like and such as lye on Inland and high countreys over high ways as Burton Trent Ware Wainsford Huntington and such like be within the said Statute of 22 H. 8. and I make little doubt of it but all the said last mentioned Bridges are also within the provision of the said Laws of Sewers for they lie and are built over such Rivers as be all of them within these Laws The Statute of 22 H. 8. extends not to Bridges lying out 22 H. 8. of highways but the Statute of Sewers doth extend to such also And therefore if a Bridge stand on a common Sewer Ditch or Gutter which hath his current to the Sea or to some River the Commissioners of Sewers hath power over such either to repair the same or to extirp it as just cause and occasion shall require Also private Bridges are within these Laws as if I. S. and his Ancestors owners of such a House have had and used to have a Bridge over a greater or less River to the Church and to his Pasture Grounds or to his Common this Bridge and all other of this kinde are within this Statute of Sewers viz. to be put down or reformed if they be impediments to the Common-wealth and also to be maintained if thereby the same be any material defence against the rage and violence of the waters otherwise not but for putting down such Bridges which have been by prescription I hope the Commissioners of Sewers will be well advised therein seeing time hath given great approbation of them and therefore I shall handle this point more fully when I come to treat of Lets and Impediments where that part of this Statute comes most fit to be handled The Statute of 22 H. 8. extends to the repairing and amending of Bridges onely but if it be fit to take an Arch away or to adde a new Arch thereto or to erect and build a new Bridge where none was before this is most fit to be done by the Commissioners of Sewers whose power may be extended thereto All Bridges set upon Rivers by persons without authority may be pulled down by the Commissioners of Sewers and the parties punished for no man ought of his own authority to be so bold with the common and
high ways or streams as to erect Bridges or other Engines thereon without lawful Warrant Bridges in highways where there is no stream under but onely some petty Land stream at rain and wet seasons these be dry Bridges and be not within this Statute of Sewers but yet they be within the Statute of 22 H. 8. if they stand on highways In 14 Jacobi Regis it was found by inquisition taken at the city of Lincoln in the Guild-Hall there 14 Jac. before Sir Thomas Grantham Knight and my self and other Commissioners of the Sewers that the great Bridge at Bracebridge near the city of Lincoln and standing upon the River of Wytham thirty miles from the Sea was fallen into great decay whereby carts carriages men on horse-back could not pass over the same as in times past had been used in defect of Hen. Sapcots Esq who ought to repair a part thereof by reason of his Mannor of Bracebridge and of Bartholmew Gregge who by reason of his house standing at the Bridge foot called the Hermitage on the North side of the River ought to repair another part and of the Corporation of Lincoln who was to repair a part thereof and of the country of Moreland who used to repair another part And the same was decreed accordingly But Mr. Sapcot without cause finding himself grieved thereat preferred his Bill into the Exchequer Chamber against Sir Thomas Grantham and others to be relieved therein and did alleage That the same stood far from the sea pretending thereby that the Commissioners of Sewers had no power to deal with the same but at the hearing of the Cause in Anno 16. Jac. he was over-ruled in that and all other parts of this Suit A Calcey A Calcey or Calsway is a passage made by art of Earth Gravel Stones and such like on or over some high or Common way leading through surrounded grounds for the safe passage of the Kings liege people and these Calceys have always been expressed in the ancient Commissions of the Sewers in the Register Fitz. nat bre and in the Statute of 6 H. 6. cap 5. but not any Calceys be in these Laws but Register F. H. N. B. 6. H. 6. such as be over surrounded and low grounds as that of Barston Bank Southy Bank and such like but touching Calceys lying in Towns and Villages which be in the high uplandish Countries this Law doth not in any sort extend unto them but all Calceys leading over the said Bridges and near unto them are provided for by this Law yet no private Calceys are to be dealt withal by the said Commissioners Goats GOats be usual Engines erected and built with Percullesses and doors of timber stone or brick invented first in Lower Germany and after brought into England and used here by imitation and experience hath given so great approbation of them as they are now and that with good reason and cause inducing the same accounted the most useful instruments for draining the waters out of the Land into the Sea There is a twofold use made of them the one when fresh waters flows and descends upon the low grounds where these Engines are always placed and whereto all the channels where they stand have their currents and drains directed the same is let out by these into some creek of the Sea and if at some great floods the Seas break into the Lands the salt water usually have their returns through these back to the Sea Many of these Goats which are placed on highways serve also for Bridges This Goat is no such imaginary Engine as the Mills be which some rare wise men of late have invented but this Invention is warranted by experience the other is rejected as altogether chargeable and illusory Yet these Engines seems to me not to be very ancient here in this Kingdom for that I do not finde them mentioned in any of the ancient Cōmissions granted before this statute did express the same and surely this Statute was so curious in the special repetition of such defences in specie as it intended to defend and maintain that I am of Opinion it can scarce be drawn to extend to any other And therefore I do agree with the Opinion of Sir Edward Cook in his Case of the Isle of Ely that an artificial Mill and such like new invented Engines are not to be erected by the power of these Laws but being once erected and proved by experience to be beneficial to the publique State they may be continued and maintained by the authority of this Statute New defences HItherto I have proceeded onely in the handling and discoursing of the old and ancient defences which be helpful both to Sea and Land And therefore I am now desirous to enter into the argument of new defences being a matter very fit and apt to be disputed on And to give some warrant to my argument therein I have so composed my Case as both old and new be therein contained wherein the point will be shortly this Whether the new River and new Bank mentioned in my Case could be ordered to be made by the power and authority of these Laws And those which would take a part to argue on the contrary may alleage much matter and many reasons to make good their arguments first out of the words of the Law it self for thereby it seemeth that this Statute can bear no such exposition by reason the words thereof literally taken seem to extend onely to the old and ancient defences and not to the erecting of new And the words thereof in this point be these Forasmuch as the Walls Banks Ditches c. by the rage of the Seas and by the fresh waters descending be so lacerate dirupt and broken the Commission therefore doth authorize the Earls of Lincoln Rutland and Exeter Robert Lord Willoughby of Grimsthrop Sir William Welby Sir Thomas Grantham and Sir John Hatcher Knights whereof three to be of the Quorum to survey and amend the said Walls and Banks Ditches c. in all places necessary and the same as oft as need shall be to make new Upon these words of the Statute do those which argue against the new Defences infer That the Commissioners have not any power to cause new Banks new Walls or other defences to be erected and so take a difference between the words nova construere de novo construere the first extending to erect new ones where none were before and the other purporting the erecting of a new one where before an old one stood and the words which inforce this exposition be penned strongly to that purpose for first they have power to repair and amend What such Walls and Banks as were before and the same to build new which words The same literally taken must needs extend to such old fences as were before and the construction being so made excludes clearly the power to make new ones where none was before and this exposition may be exampled