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
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
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
petty matters the Lessee for years shall be at the sole charge for these may be spent in his own time So I suppose my meaning is herein well perceived which is That in petty annual and ordinary repairs the Lessee alone shall do the same but where the same wants in great timber or when a new defence is to be built they shall both be at the charge And with this the Statute of 7 Jac. cap. 20. doth directly in reason agree withal out of 7 Jac. cap. 20. which Statute it is plainly to be observed that in the great repairs as also in the new building as well the Lessor as the Lessee shall be both at the charge Yet in the Statute of 3 Ed. 6. cap. 8. there is a clause in effect That all Lots Scots and sums of money hereafter to be rated by the Commissioners of Sewers upon the Kings Lands shall be gathered or levied by distress on those grounds as in case of other persons and that all Bills of acquittance signed with the hand of such Receiver or Collector shall be a sufficient Warrant to the Auditors and Receivers and other the Kings Officers for allowance to the Farmer or Tenant to the Kings Majesty Whereby it appeareth that the Farmer of the King shall not be at the charge but His Majesty yet by the Statute 13 Eliz. cap. 9. it may be collected that the Lessor for years shall be charged but all 13 Eliz cap. 9. these are to be reconciled with my said diversity But now it may be objected to me Sir do you think it reasonable or possible for Commissioners of Sewers to take notice at the Nota. first of every private mans inheritance and the several Estates which the parties have therein when it will scarce be possible by private search to finde them out To this I answer That it is not reasonable to tie the Commissioners to such difficult and obscure businesses but it is sufficient for the Commissioners to impose or lay the rate tax or sesse on the grounds or on the visible possessors thereof and if the money so rated be demanded on the Lessee for years or for life or if the goods be distrained therefore or they be compelled to pay the same then they may come before the Commissioners and shew forth their lease and make it appear that I. S. hath the Reversion and as the case is to be charged as well as himself and upon due proof thereon made the Commissioners upon hearing the parties on both sides may apportion the tax on either of them as in Justice Discretion and true Judgement is requisite And so if a tax be set upon Land the owner may come in before the Commissioners and make it to appear before them that I. D. hath a common and Rent thereout and upon proof thereof made the Commissioners are to lay the charge accordingly And so it shall not tie the Commissioners at the first to lay the charge upon every particular person for that were opus in finitum impossibile but to relieve the parties upon their complaint and this may be easily done and it stands with the Justice of these Laws so to do And if the parties grieved will not complain for relief let it be justly accompted their own folly and no injustice of the Commissioners for the very Statute directs that such as are 1 H. 4. ch 12. grieved shall have relief upon their complaints which confirms my opinion in this point Taxes Rates and Sessments imposed meerly by the Laws of Sewers I Have formerly put nine several matters to tie men to the repairs and this by the Laws of Sewers is the last but not the least of them I propose these to be by the Laws of Sewers because they be not backed helped aided or assisted by Customs Prescriptions Common right or by any other Rule of the Common Law or by Tenure or Covenant or any act of the party as all the rest be but are only composed made ordered and directed by the sole power and authority of these Laws of Sewers and these are such as fall out of all the fomer rules and therefore in nova causa novum remedium est adhibendum But yet before I enter into my own works I will set down and declare the opinions delivered in Rooks and Keighleys Case which seemed one of them opposite to the other for in Rooks Case it is said That if one be bound in respect of his Lands to repair a Wall or Bank by Tenure Prescription or otherwise that yet the Commissioners of Sewers could not assess the said party alone to repair the same and said that the Commissioners were not tied to the Rules of Prescription Tenure Custom or otherwise but ought to assess all the Level to do the same which are to have good thereby But this being mistaken is very justly and discreetly altered in the said Case of Keighley by the Author himself for how could it be presumed that the learned makers of this worthy Law would have stricken down at one blow so many thousand Prescriptions Customs Tenures Covenants and uses as be within this Realm which be tied and bound to do and make the repairs in this kinde some in consideration of houses and land others for yearly Rents and for other causes which to have set at liberty and to have imposed the charge on the Levellers would have wrought and brought a wondrous innovation change and alteration in these works all which by this exposition are freed and saved But yet there be certain Cases which of meer necessity lay the charge upon the Level which are as follows The charge upon the Level FIrst if any grounds were heretofore by Custom Prescription Tenure or otherwise obliged and bound to repair any Wall Bank River Sewer Goat Sluce Jetty or other Defence which grounds so charged have been of late devoured and overflown by the Sea and so remain The Commissioners of Sewers are in that case tied to lay the charge now upon the Level which stand in danger of taking hurt by the not making the repairs or which are to receive good by the doing thereof Secondly also if A. B. be bound by the Tenure of his land to repair a Bridge Calcey or Bank and he dieth without heirs whereby the Land escheateth to the Lord of the Fee in this Case the Tenure is ended and the chief Lord is not bound to the repairs and therefore now the charge must lie on the the Level and so is the Law if this Tenure had been in other sort extinguished Thirdly where no persons or grounds can be known which ought to make the repairs by Tenure Prescription Custom Covenant or otherwise then the Commissioners of Sewers are to lay the charge on the Level Fourthly if John à Stile be chargeable to make the repairs and be not able to do the same here the Level are to be charged to assist him therein as appears in Keighleys
fol. 57. in Winbish and Tailboys Case it is said That if there be a Bastard Eigne and Mulier puisne and the Bastard after the death of the Ancestor entreth into intailed Lands and dyeth seized this doth not binde the Mulier in case of Estates Tail as it doth in an Estate of Fee simple and voucheth for Authority in the point 39 Ed. 3. plac ultimo where the Case is That Lands were given in Tail to I. S. the Remainder 39 Ed. 3. in Tail to C. and I. S. hath Issue by a woman a Bastard and dyeth seized and then the Bastard dyeth seized having Issue he in the Remainder may recover the Land against the Issue of the Bastard affirming That the continuance of possession in the Bastard shall not be prejudicial to him in Remainder To which Opinion I do subscribe because he in the Remainder is a stranger in blood and so cannot be concluded as the Mulier shall be for a Mulier indeed is like a graft drawn out of both the bloods of Father and Mother so the Bastard is a slip which is derived from the same Stock and had his being therefrom And for my own Opinion considering the Statute of Westminster 2. de Donis doth accept of Gifts in Tail made before Mariage upon the hope and expectation of a succeeding Mariage to perfect the same even so the Mariage succeeding to a Bastards birth gives him and his Issue a priviledge in these cases of descent which is denied to other Bastards or meer Strangers And I see no reason wherefore that maxime and principle of Law should be altered by the said Statute of West 2. but because Mountagues Opinion in Mr. Plow Com. sways the other way I will therefore submit this Point to men of greater judgement then my own So that if the Law fall out for the Bastard Issue then she should have title to the half part belonging to the Females and to no part belonging to the heirs Males And with this Conclusion I do here end my Common Law Points and will now resort to the handling of my Statute Points The Sewers are a Court of Iustice I Am desirous to attribute to this Law all the honor and dignity which may in any sort belong to it and therefore I am unwilling to forget any thing which may materially tend to the upholding and maintaining thereof wherein amongst the rest and the chiefest of them all it is To prove the Commissioners of Sewers a Court of Justice I know some Opinion hath been to the contrary and held That the Commissioners had only the power of a Commission and not any Court and I suppose much may be said to maintain that opinion First because in expressis terminis there is no Court ordained by this Statute or by any other and without words express in the point they can have no Court. Secondly by presidents in the like case it hath been held no Court as in the Case of the City of London in Sir Edward Cooks 8 Report The King granted to the Major and Commonalty Plenum integrum scrutinium gubernationem The Case of the City of London correctionem omnium singularum misteriarum and it was resolved That they had no Court in this case because no Court was granted to them by the Patent as it is holden in Doctor Bonhams Case fol. 119 in the same Report wherein the principal Case there put sways the same ways for there the Physitians had power to imprison and to fine offendors yet they had not any Court thereby And so if a Commission issue out of the Chancery to examine matters in a Suit there depending and to Oyer and Terminer the same yet hereby these Commissioners have not any Court for in that case the Commission is derived out of the proper power of the Chancery which is the Court for that cause eo instante when it is in Commission And one Cause cannot uno eodemque tempore depend in several Courts neither have the Commissioners upon the Statutes of Bankrupts and charitable uses any Courts nor the Commissioners in the Case of 1 2 Eliz. Dier fol. 175. which had power to hear and determine the Office of the Exigenter had not any Court but only the power of a Commission For in truth these are all of them rather Ministerial then Judicial Commissions and so a Court is not proper to them Yet I am of Opinion That the Commissioners of Sewers have an eminent Court of Record It is true that Courts had their beginnings in three sorts First by Prescription Secondly by Charter-grant from the Crown And Thirdly by Act of Parliament 1. The Courts Hundred and Leet began by custom and so did the eminent Courts of Westminster-Hall 2. Courts in Corporations most of them took their beginnings by Charters And 3. The Courts of first Fruits and Tenths and the Court of Wards and Liveries were erected by Act of Parliament the one in 32 the other in 33 Hen. 8. But to bring the question nearer home to our Statute of Sewers which is but additamentum legibus antiquis Sewerarum for they have been used from the beginning of Laws though perhaps not known by that name And yet before the 6 H. 6. they were known by that name as by the perusal of that Statute may be collected And therefore for the causes and reasons hereafter ensuing I hold the same to be a Court. First for that the Statute of 12 Ed. 4. cap. 7. and our very Statute of 23 H. 8. calls the Commissioners of Sewers 12 Ed. 4. Justices and one cannot properly be a Justice or a Judge but in a Court. Secondly here be legal Proceedings and Process for this Statute saith That the Commissioners may make and direct all Writs Precepts Warrants and other Commandments to all Sheriffs Bailiffs and other Ministers c. And the Statute of 1 H. 4. cap. 12. hath these words in it That he that thinks 1 H. 4. himself grieved may pursue and he shall have right and where there be legal proceedings and where parties grieved may come in and have remedies for the wrongs and injuries done to them there is properly a Court of Justice to have them in But in Doctor Bonhams Case the Physitians had no legal proceedings and therefore parties grieved could have no remedy which was the reason they had not a Court. And thirdly the chief reason wherefore I take it that Commissioners of Sewers have a Court is Because the Commission of Sewers is a member of the ancient and renowned Court of Oyer and Terminer which was and is a Court of great esteem power and authority and so it was needless to erect a new Court in this case as it was needful to erect and found the Court of Wards and first Fruits the first would else have remained in the Chancery to the which primarily it did belong and the other was a new revenue and wanted a Court to direct or
matters doth contain in it these words viz. That if any person or persons of what Estate or Degree soever he or they be of that from henceforth do take upon him or them to sit by vertue of the said Commissions not being first sworn according to the Tenor of the Oath expressed in the Statute or if any person so named and sworn do sit not having Lands Tenements or other Hereditaments in Fee-simple Fee tail or for term of life to the clear yearly value of Forty Marks above all charges to his own use Except he be Resciant and Free of any City Borough or Town Corporate have moveable substance of the clear value of One hundred pounds or else be learned in the Laws of this Realm in and concerning the same That is to say admitted in one of the principal Inns of Court for an utter Barrister shall forfeit Forty pounds for every time that he shall attempt so to do the one moyety to the King the other moyety to the party that will sue therefore c. So that by this clause it is manifest that every one that is not qualified in one of these degrees is no competent Commissioner within this Statute First that he be an utter Barrister in one of the four Inns of Court Secondly or have Lands Tenements or Hereditaments of the clear yearly value of Forty Marks above all charges in Fee simple Fee tail or for life Thirdly or be Free or Resciant in some City Borough or Town Corporate and have moveable substance of the clear value of One hundred pounds And that person which is not within one of the said three parts and yet doth take upon him to sit in the execution of this Commission incurs two penalties The one the forfeiture of his discretion for his presumption The other of Forty pounds for his contempt And therefore for the more clear examination of these things I will observe that method in my Argument which my Case hath formerly prescribed to me And first of all I shall proceed to the personal abilities and first of the son of the free Citizen of Lincoln I am of opinion that every Commissioner of this kinde must be indowed with these three qualities First he must be free of a City c. If he want any of these then he is out of this Branch of this Statute Secondly he must be there Resciant and Thirdly he must have in clear moveable Substance One hundred pounds and Therefore what person is such a Freeman is now to be handled I am of opinion that every Subject born within the Kings Dominion is a Freeman of this Realm as appeareth by the Grand Charter cap. 14. yea though he be a Bondslave to a Subject but a stranger born is no Freeman of the Kingdom till the King have made him Denizen in whose power alone without the help of any other one may be made free And to be a Freeman of the Realm the place of his birth is held more material then the quality of his Parents for if Aliens have a childe in England it is free of the Kingdom yet by the Opinion of Hussey Chief Justice in 1 R. 3. fol. 4. and in Calvins case of the Post Nati it is holden for Law That if Ambassadors of this Realm have children born in France or elswhere where the Father and Mother be natural born Subjects the children are free of the Realm of England but if either the Father or the Mother of such children were an Alien then are not those children free One out of the Kings protection is as I take it for that time no Freeman of the Realm But in what case a man Exiled is in sorteth the nearest to our question Exile is one of the Eight Punishments which the Roman Laws did inflict upon Strangers which be videlicet 1. Damnum 2. Imprisonamentum 3. Plagae 4. Compensatio 5. Ignominia 6. Exilium 7. Servitudo 8. Mors. Mr. Bracton doth in this maner describe Exile that is Certi loci interdictio and doth distribute it into Four heads That is to say 1. Specialis hoc est interdictio talis provinciae Civitatis Burgi aut villae 2. Generalie Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae Exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertferdiae Norfolciae per Regem Richardum secundum Et aliquando per Judicium terra ut sit in casu Piers de Gaveston etiam in casu Hugonis de le Spencer junioris qui ambo fuorunt exilit ' per Judicium in Parliamento Abjuration also was a legal Exile by the Judgement of the Common Law as also by the Statute Law and in the Statute of Westminster the Second Cap. 35. He which ravisheth a Ward and cannot render the Ward unmarried or the value of his Mariage must abjure the Realm and this is a general Abjuration And by a Statute made in 31 Ed. 1. 31 Ed. 1. Butchers are to be abjured the Town if they offend the fourth time in selling measled flesh and this is a special Abjuration But I must put this Case to a further question which is What a man Exiled doth forfeit thereby And in my opinion he forfeits these things following First he loseth thereby the freedom and liberty of the Nation out of which he is Exiled Secondly he forfeits his Freedom in the Borough or City where he was free for he which forfeits the Freedom of the whole Realm by consequence forfeits his Freedom in every part thereof Thirdly he is of as little esteem in our Law as if he were dead for his Heir may enter and so may his Wife enter into her own Lands and may sue an Action as a woman sole by 31 Ed. 1. 1 H. 4. 31 Ed. 1. 1 H. 4. 1. And fourthly in my opinion he shall forfeit those Lands to the King which he shall purchase in the Realm during his Banishment qued vide 15 Ed. 3. Fitz. Petition ' plac 2. But there in that case Hugh Spencer was banished by a Judgement in Parliament which gave a forfeiture of his Lands howsoever I take him as strongly barred from purchasing in the Realm during his Banishment as an Alien is for fit alienigina by his Banishment and he is in a worse case then an Alien because he taketh with him Indignatio principis But a banished man forfeits neither Title of Honor as Knighthood which is de jure gentium nor the Lands he had before he was Exiled unless by special Judgement given in a legal course they be so decreed Then our case goes further That E. is not Exiled himself but D. his Father was Exiled whose Heir E. is now whether by the Exilement of the Father the liberty and freedom which E. might claim in the City of Lincoln by being the Son and Heir