depending upon others and many such double contingents may be put The Case of Sir Edward Cook put in the end of the Rector of Cheddingtons Case out of 12 Lib. Ass pl. 5. in my 12 lib. Assize opinion doth not disalow the second Condition for there the Case is That A. Leased to B. upon condition That if A. or his heirs pay to B. Ten pounds within a certain day that they might re-enter and if A. nor his heirs should not pay the Ten pounds within the time Then if B. paid to A. Ten pounds at another day that he should have Fee Both A. and B. failed in payment and A. entred and being put out brought an Assize and nihil Caepit per breve this doth not prove that one condition cannot depend upon another neither can I see well what Exposition to make of so uncertain a Case so that I take this Case to be no evidence against mine But in the 14 H. 8. fol. 15. there is a Case which in my 14 H. 8. fol. 15. opinion makes more against my double condition then any other which is put by Brudnel Chief Justice that is If A. be bound in an Obligation to B. upon condition to infeoff I. S. before Easter ensuing then the Obligation to be void and if he do not infeoff him then to pay Ten pounds at Pentecost then the Obligation to be void The Feoffment is not made before Easter therefore Brudnel held the Obligation was forfeit and that the second Condition was not good But there is a Quaere set upon that Case and so it may well be for I see it commonly done that if a defesans be made of a Statute which is broken and so the Statute becomes forfeit yet a new defesans may defeat it and so in my opinion may the second Condition in this Case avoid the Obligation if the first conclusion had not been in the Case I shall adde this Case also as a conceit that is A. infeoffs B. upon condition if A. go to Lincoln he shall have the A Conceit Lands to him and the heirs of his body and if he go to Boston he shall have it for Ten years and he goes first to Boston I do here hold these Conditions being put promiscuously without distinction of the times of the Conditions which shall be first performed and which the second that the Fee is decreased into an Estate for years and can never increase into an Estate in tail by performing of the second Condition because the Livery out of which it should grow was quite destroyed by the first decreaser So that my intent Sâ—â—ond Point appears that one Condition may depend upon another upon the said distinction but whether by the performance of the first Condition in my Case there will an Estate come to B. or not I meant it for a question for B. had before an Estate for his own life then is it not possible that his Estate can hereby be increased by having the Land also for the life of C. if it be admitted argumenti gratia that B. shall or may have both these Estates stand in him both at one time for if C. dyed first then is B. never like to have any benefit thereof And if B. himself should dye before C. then also were it impossible for B. to make any use of this Estate for the life of C. unless it were in him to grant away to another as in the Case of the Office in the 1 H. 7. where an Office 1 H. 7. 29. Crofts Case is granted to the King the King could not have the Office himself and so in that point for the King to take by the grant he could not yet by that book it was in him to grant over to another which might have it And like to this is the Case where I. S. is Parson of the Church of Dale and the Patron grants the next avoidance this grant can he himself take no benefit by unless he resign yet if he dye it shall come to his Executors But I take the Law to be in my Case that B. shall not by the first Condition have both the Estates in him at once that is for his own life and after for the life of C. but that the Estate of B. by the first Condition shall be decreased or changed from his own life into the life of C. and shall be melted and newly molded by this Condition for an Estate may as well decrease as increase by a Condition and yet the Lord Staffords principal Case was That Queen Elizabeth did grant the Mannor to Tindal and the heirs of his body upon condition upon payment of Twenty shillings to her by Tindal that he should have the Reversion to him and his heirs and there it is holden for Law that by the payment of Twenty shillings the Reversion in Fee simple shall increase to Tindal and shall not alter or drown the Estate Tail which is an excellent Case but alter the putting of that Case and then it may alter the Law also that is I give Land to I. S. and the heirs of his body upon condition A Conceit if he pay me Twenty shillings that he shall have the said Lands to him and his heirs In my conceit by the performance of this condition the Estate Tail is by increase changed into a Fee simple in which note the difference between Tindals Case and this where upon payment of 20. s. the reversion is granted to him and his heirs and where the words be That upon payment of Twenty shillings he shal have the Lands to him and his heirs In the first Case the Fee-simple accrewing shall not alter the Estate Tail but in the second Case by the Fee increasing the Estate Tail is determined and changed into a Fee simple quod quaere Admitting the first condition did increase the Estate of B. from his own life to the life of C. and the second condition is performed by the which another Estate will accrew to B. as I take it will because an Estate decreased is parcel of the first Estate then what Estate B. hath got by this new Limitation is the question And in my Opinion he hath at the most but gotten an Estate again for his own life and that the Limitation to the heirs of the body of his father is utterly void be his father dead or alive for if his father be dead his elder brother is the heir of his body within these words of Limitation who cannot take the Lands by descent Littleton estate Tail from B. his Brother or from his Father but as the Case is put in Littletons Title Tail and in the 4 and 5 Ma. in Dier Ereswoulds 4 5 Ma. Dier Case where Lands were given to the eldest son and the heirs of the body of his father this is a good Estate in Tail being made to the eldest son because he is capable to take the Lands in
again to their Successors And in the Case of Sir Henry Nevil in Plo. Com. an Office of a Parker was granted to two and an Annuity for the exercise of it and it is there resolved that the Annuity might not be severed from the Office and so it might be said in my Case That the Mannor which belongs to the Office was at the first laid thereto or given therewithal for the maintenance of the Officer in his place by the Founder and so may not be severed therefrom without his consent And touching the intailing of the Office of the Ranger of a Forest it is held in Mancels Case in the Comment of Mr. Plowden that the Office of a Bayliff or Receiver of the Rents of a Mannor may be intailed So an use and a Copy-hold because these concerned and depended upon Land But the Office of the Master of the Hawks or the Mastership of the Horse could not be given in Tail within the Statute of West 2. de donis conditionalibus nor an Annuity which chargeth the person Yet all these may be given or granted within these intailed limitations but yet they are no intails within that Statute I am of opinion That the Office of a Ranger of a Forest cannot of it self be given in Tail but having a Mannor belonging to it make the question of more moment For as the Office Dese is not intailable so the Land per se may be intailed But Land in our case is not the principal but the accessary accessorium sequitur suum principale and therefore seeing the Land follows the Office as the shadow doth the body and passeth out of his own kinde by the ceremony belonging to the Office and not by the ceremony by which Land is transferred and passed I should therefore take it that the Estate of the Land should be such as the Office of it self might bear which could not be intailed yet because in the said Case of the Forester with Land belonging to it is taken to be in Tail in 1 H. 7. aforesaid with a remainder 1 H. 7. thereof over in Fee I am therefore concluded to make any further question of it and so I leave it as I found it and do passe to the argument of the other points Second Point The second Common Law Point is Whether this gift in my Case be a Frank-mariage or another intail I have observed in Books that there be five things incident to a gift in Frank-mariage viz. First it must be to or with a Cosin within the four degrees Secondly the word Frank-mariage must be literally expressed Thirdly the Reversion must be left at the time of the gift in the donor and then there be two other things follow as consequents Fourthly acquital of payment of Rents and services And Fiftly warranty to secure the Estate And the want of these or any of these in the creation doth destroy that Estate in the conception Here seems to be two Impediments in my Case to hinder this gift to take root as a Frank mariage It is made abnepti which is the Cosin in the fourth degree and the last in those gifts whereby the gift that way cannot have his full operation for that the first Heir of their bodies is out of the former priviledges But in regard I take it that a Frank mariage doth more respect his original creation In incepto then the descent of the priviledges to the Heirs In suo progressu I take this to be no impediment to hinder this from being a gift in Frank mariage But here the words in the gift preceding the words Frank mariage do differ much from it for by the special limitation the Heirs Females shall inherit with the Heirs Males Simul Semel as Heirs in common But in the Case of the Frank mariage Heirs Males shall first inherit single and for want of them then the Females I do agree the Law that in cases where the special words of limitation may in construction be made to agree with the word and limitation of Art contained in Frank mariage the gift shall be taken a Frank mariage as in the Case of 2 H. 3. It. suff Fitz. Mordanc plac 52. where Lands were given 2 H. 3. in Frank mariage to R. S. cum Alicia sorore le donor it a quod post mortem dictae Aliciae puerorum suorum the Land should revert to the donor and this was adjudged a Gift in Frank mariage and the words It a quod were holden of no validity neither will the words of Reservandum Redendum Tenendum or Warrantizandum though they vary from the nature of a Frank mariage yet they shall not destroy the same as an Habendum may do which is the word whose proper place is to create the Estate and therefore if any thing come therein which is repugnant thereunto the same will alter the quality of the gift And with this agreeth the Case in 45 Edward the 3. Title Tail 14 and 31. where Lands were given to I. S. in Frank mariage with B. the daughter 45 E. 3. of the donor Habendum to them and their heirs and this was held a Fee simple and no Frank mariage And the like Law is where Lands are granted in Frank mariage the remainder in Fee to I. S. and his heirs the Frank mariage is defeated by the opinion in Br. Cases and so in my Case because there can be no reconciliation between the special words of limitation in my Case and the word Frank mariage I am therefore of opinion that this gift is an Estate in Tail according to the special limitation and no Frank mariage Third Point Whether the Bastard shall inherit to have an Estate in Tail is the third Common Law question for I am clear of opinion that a Bastard cannot inherit to a gift in Frank mariage because adultery and fornication which is the seed of every Bastard is opposite to mariage and in breach of that powerful link and knot of Matrimony which is an Ordinance derived from the Divine power of the Almighty And therefore seeing mariage is the material consideration of such a gift Bastardy the opposite can never being out of the consideration come within the priviledges to inherit this Estate So if I give Lands to I. and S. and to the heirs of their two bodies lawfully begotten their Bastard cannot inherit to this gift because he is not heir of their two bodies lawfully begotten But if the word Lawfully had been out of the limitation then I see no reason but that a Bastard may inherit to an Estate in Tail as to a Fee simple conditional which he might have done at the Common Law seeing an Estate Tail may be made before mariage as expecting to be confirmed thereby and so a Bastard born before mariage is by the consummation of a succeeding Mariage made capable to inherit to them if his possession continue without disturbance to his death Yet in Plow Com.
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
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
examine this part of the Statute which produceth these matters I have framed a Case which doth give occasion in this days exercise to dispute of all them The Case for the second Lecture A. Leaseth his Mannor in the county of Lincoln in which Second Case be Copyholds to B. a yonger Son for his life upon condition to have it for the life of C. upon condition to have it to him and the heirs of the body of his Father A Copyhold is forfeit the first Condition is performed the Commissioners of Sewers in that county upon view survey and by their discretion decree a new bank where none was before to resist the Sea and a new River to be cut to drain the superfluous waters in S. and an old Sewer in D. to be repaired and by inquisition assesses B. the Lessee for the Mannor the Copyholder for the Copyhold Land and the Town of S. and also the Parson there for his Tythes because they lie all in the Level the second condition is performed B. enters in the Copyhold My conclusion is That this new Bank new River and old Sewer be well decreed but the said sesse is void in toto in qualibet parte Points at the Common Law The Points of this Case are three at the Common Law and three upon this Statute but all of them are so woven within another that every one of them go hand in hand from the beginning to the end of the Case Imprimis Whether the Duplicate Condition be good or not Secondly What Estate B. the yonger Son hath by the first Condition and what Estate he hath got by the second Thirdly A Copyhold becomes forfeit to the Lord and before the Lord take advantage of it his Estate is changed Whether by the change of his Estate the benefit of the forfeiture be lost or not Points upon the Statute Imprimis Whether Commissioners have power to decree a new bank a new drain and other new defences or not And herein the qualities and properties of Rivers Streams and Banks and their dependants are to be treated of Secondly Whether they may decree the said new defences by view and survey And herein is to be handled What Commissioners of Sewers may do by survey and what they may do by their discretion and what they may do by Jury Thirdly in what cases Assesses and Taxes may be laid and imposed and on what things and in what maner they are to be imposed and whether the Rates set upon the persons in any case be well done or not and where the fault is if any be Argumentum Lectoris Seeing it hath been the ancient order for the Reader of this place to maintain the Conclusions of his Case I shall therefore endeavor my self to perform that order which Custom hath imposed upon me and accordingly as I have concluded so I take the Law to be And touching the first Point it hath been challenged and drawn in question upon some Opinion delivered in the Rector of Cheddingtons Case in Sir Edward Cooks first Report where it said That one contingent cannot depend upon another Sir Ed. Cooks 1 Report But more strictly it is called to an accompt in the Lord Staffords Case in Sir Edward Cooks eighth Report for there it is Cook Rep. 8. held That one possibility cannot depend upon another possibility and this Case is there put That if A. let Lands to B. for years upon condition to have it for life and upon condition to have Fee that the Fee simple can never increase by the second condition but as he saith in another Case Amicus Plato Amicus Socrates sed magis amica veritas his rule taken in the first Case is very general and the Lord Staffords Case admits distinctions which in my Argument I shall apply my self unto And some differences I shall take in this Point in question therefore I shall thus distinguish That if upon performance of the first Condition the Original Estate be determined upon which both the first and second Condition were built and grounded the second Condition and increase thereupon is utterly void but if the first Estate be not destroyed nor confounded upon the first Condition performed the second Condition and Estate thereof which shall be gotten thereby may then well grow upon the old stock To explain this by Example If A. give Land to B. in Fee simple upon condition to have the Land in Tail upon condition to have for Life here because the first Estate and Livery by the first Condition is not destroyed therefore the second Condition should well stand in force So I do make a Lease to A. for twenty years upon condition to have the Land for forty years upon condition to have Fee this first Condition and second Condition may have both their full operations for by the performance of the first Condition the lease of twenty years is not destroyed but stands on foot and therefore the original Estate remaining unconfounded the Fee simple may well increase by the performance of the second Condition But if a Lease be made to A. for his life upon condition to have in Tail upon condition to have Fee the second Condition here is utterly void because by the performance of the first Condition A. had an Estate in Tail which drowned and destroyed his Estate for life and so because every decreasing and increasing Estate is to depend upon the first Estate which receives the Livery which is the life of all therefore the second Estate can never accrew in this case and this is true reason as I take it of the said Case put in the Lord Staffords Case for there the Case for years was destroyed by the Lease for life which came by the first Lord Staffords Case Condition and so the Fee simple there could never accrew by the second Condition And in answer to the said general ground taken in the Rector of Cheddingtons Case That one Rector de Cheddingtons Case contingent or possibility cannot depend upon another under favor I take it not that I am bound thereby neither was it the meaning of Sir Edward Cook as I take it to extend the same so largely as they are there put because I finde many Authorities of great account which are against the said general position And first in the 38 H. 8. Br. Feoffments pl. 71. a Feoffment 38 H. S. was made to the use of A. and his heirs until I. S. paid him Ten pounds and then to I. S. and his heirs and so to the third person and what is this but one condition contingent and possibility to depend upon another for these contingents there were held good and were built upon a sure foundation And so in Digs Case in Sir Edward Cooks Reports where a Feoffment is made to the use of A. and his heirs with Digs Case power of Revocation and after of new Limitation of Estates these be also contingents and possibilities
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
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
Gen. cap. 1. of all other creatures being finished the Heavens adorned and the Earth replenished God said Let us make man in our own Image after our likeness and let him have Dominion over the fish of the Sea and over all the Earth and every creeping thing that creepeth upon the Earth So God Created man in his own Image in the Image of God Created he him Male and Female Created he them and said unto them Be fruitful and multiply and replenish the earth and subdue it and have Dominion over the fish of the Sea and over the foul of Heaven and over every living thing that moveth upon the earth This was the first Commission that ever was granted and it passed under the Divine immediate Seal of the Almighty extended over the whole world and by the vertue of the word Dominamini in the Plural number God coupled the woman in Commission with the man But in the 18 Chapter of Exodus Verse 21. Jethro adviseth and counselleth Exodus 18. Moses his Son in law to provide out of all the people men of truth hating covetousness and place such over them to be Rulers of Thousands Rulers of Hundreds and over Fifties Tens where by the word Men twice repeated by Jethro and this place of Scripture seemed to exclude wholly from Government and the former Commission extended over Fishes Birds and Beasts and neither over men nor women And in the first of the Corinthians Chapter 14. it is said by Saint Paul Let the women keep silence in the Churches for it is not permitted to them 1 Cor. 14. to speak And in Grendons Case in the Comment fol. 497. Dyer saith That women could not administer the Sacraments nor were they permitted to say Divine Service And in the second Chapter of Timothy Verse 12. he saith We suffer not the woman 2 Tim. to rule over the man but this last of Timothy may be most aptly applyed to husband and wife I remember out of the Abbey Book of Evesham this Note worthy of observation Quod Alicia Peeres Regis miniona supra modum mulierum nimis supergressa sui etiam sexus fragilitatis feminiae Immemor nunc Justiciarios Regis nunc in foro ecclesiastico juxta doctores sedendo pro defensione causarum suadere etiam contra jus postulare minime verebatur unde propter scandalum petierunt à rege in Parliament ' tent ' An. 50. Ed. 3. penitùs amoveri but hereby I collect that she was not in Commission with the Judges Temporal or Spiritual but was a favorite of the Kings and took upon her to intermeddle in businesses nothing concerning her But whether the Text meant it for a woman to sit Judge in a Court of Justice was contra modum mulierum or because she sate there to wrest righteous Judgement I refer to the readers of that History For Debora was Judge of Israel and Judged the people as the fourth of Judges hath it Dyer indeed saith in Grendons Case That divers Churches were appropriated to Prioresses and Nanneries whereof women were the Governesses whereby and by the said Chapter of the Corinthians it appears that women might be admitted to have Rule and Government over the possessions and persons Temporal and Ecclesiastical but were not admitted to have curam animarum nor to meddle with the administration of the Service or Sacraments And for Temporal Governments I have observed women to have from time to time been admitted to the highest places For in ancient Roman Histories I finde Endochia and Theodora admitted at several times into the sole Government of the Empire and here in England our late famous Queen Elizabeth whose Government was most renowned And Semiramis governed Syria and the Queen of the South which came to visit Solomon for any thing that appears to the contrary was a sole Queen And to fall a degree lower we have presidents that King Richard the first and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regents of this Realm in their absence in France And the wise and renowned Lady Margaret Countess of Richmond was put in Commission and Humfrey de Bohune Earl of Hereford was by Tenure Constable of England which is a Judge in Martial affairs and he died without issue Male by reason whereof the Office amongst other things descended to his two Daughters and Co-heirs And in the 12 of Elizabeth in Dier it is holden for Law That although this was an Office of Justice yet they might execute the same by deputy for in truth women were unfit Martialists to judge of matters of that nature and yet it is clear a deputy doth nothing in his own name but in the name of his Master or Mistriss therefore the Martial Court was to be kept in their names But yet I will descend a step lower doth not our Law Temporal and Spiritual admit of women to be Executrixes and Administratrixes and hereby they have the rule or ordering of great Estates and many times they are Gardianesses in Chivalry and have thereby also the government of many great Heirs in the Kingdom and of their Estates And in 10 H. 7. a man devised his Lands to be sold by a 10 H. 7 woman and died and she sold the same to her husband So by these Cases it appeareth that the Common Law of this Kingdom submitted and committed many things to their government yet the Statute of Justices of the Peace is like to Jethroes counsel to Moses for there they speak of men to be Justices and seemeth thereby to exclude women But our Statute of Sewers is Commission of Sewers shall be granted by the King to such person and persons as the said Lords should appoint So the words persons stands indifferently for either Sex And therefore although by the weakness of their Sex they are unfit to travel and they be for the most part uncapable of learning to direct in matters of Judicature for which causes they have been discreetly spared yet I am of opinion for the authorities reasons and causes aforesaid that this honorable Countess being put into Commission of the Sewers the same is warrantable by the Law and the Ordinances and Decrees of Sewers made by her and the other Commissioners of Sewers are not to be impeached for that cause of her Sex And I conclude here that although in discretion women have been secluded as unfit yet they are not in Law to be excluded as uncapable If an Infant above the age of Fourteen and under the age of One and twenty be made a Commissioner his infancy shall be no cause to disable the Laws made by him yong Daniel was Judge over both the Elders And in Little Brook fol. The case is a Parson or Prebend being within age made a Lease for years of his benefice and would but could not after avoid it for his Nonage for seeing the Church had made him of full age to discharge the spiritual
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
according to my said conclusion of my Case here the King hath a part the Prince a part and the Subject a part of the grounds left by the Sea My Tenets therefore be these First that the Subject may have the grounds of the Sea to the low-water mark and that no Custome can extend the ownership of a Subject further That a Subject cannot have the grounds to the low-water mark but by custom and prescription and I take it that it is very disputable whether grounds before they be relinquished by the Sea may be gained by Charter and grant from the Crown I suppose they may That the words incrementum decrementum maris are fully described by the said Record of 43 E. 3. of the Abbot of Ramsey that is That if the decrease of the Sea be by little and unperceiveable means and grown only in long tract of time whereby some addition is made to the Frontagers grounds these by these words may appertain to the subject and herein the said words have no other operation but Lands left to the shore by great quantities and by a sudden occasion and perceiveable means accrew wholly to the King That the increase to the said County Palatine for the causes aforesaid doth appertain to the Prince as Earl of Chester The Shore BUt now I am arrived at the continent and the first ground I set my foot on is the shore which in Latine is called Littus Maris it taketh the name wholly from the sea as partaking most with her nature and so Ex digniori parte appellatur yet it is not all one with the Sea nor with the Land but participates with them both And Mr. Bracton in his second Book Chap. 12. saith That Littora Maris Bracton accessoria what the shore is appears by Justinian the Emperor in his Institutes lib. 2. pag. 141. and is there thus defined Justinian Littus Maris est quousque maximus Hibernicus jus fluctus eluderet quousque fluctus Maris in estate longius exestuat and with this agreeth Cicero Topicorum The shore is not counted for lands or grounds gained from the Sea or left by it because at Cicero every full Sea it is covered with the waters thereof In the 13. Chapter of St. Matthews Gospel ver 2 3. it is said That Mat. 13. 2 3. our Savior Jesus went into a ship and sate there and the whole multitude stood on the shore and he spake unto them Hereby it appears that the shore was the dry land because they stood thereon and it was a great quantity of ground for thereon stood a multitude and it was near the brink of the water because they heard Jesus speak unto them out of the ship In point of property and ownership it is the Kings as Lord of the seas but as Sir Henry Constables Case is a subject may have the same as belonging to his Mannor by prescription In the Imperial Law which the Civilians use the sea shore is held to be common to all and that it is as lawful for Diogenes the poor Cinick as Cressus the rich King Casam 161. Ponere retia siccare but our Common Law of England doth in reason much surpasse either the Imperial Law or the Civil Law in distinguishing upon these for it is said Rex in ca habit proprietatem sed populus habet usum ibidem necessarium so that as to the lading and unlading of ships and for drying of Nets there and for other necessary businesses the subjects have these uses therein but the soil and grounds thereof belong properly dom ' Regi And a subject may have the same by prescription and therefore such as hold the shore to be the extreme point both of land and water be in a great error for as Iustinian saith in his Institutes Quod gemmae lapilli praeciosi inveniuntur which can be taken no otherwise sed super terram aqua relictam so that this shall suffice to have said concerning the sea shore Sea Coasts THe coasts of the sea come next in order to be treated of Costera maris be words well known but their confined definition is hard to be found out yet certainly they contain the shore and banks for by the Statute of 27. Eliz. Chap. 24. an Act was made for the mending of the banks and 27 Eliz. 24. sea works on the sea coasts but in the 7. Chap. of Maccabees coasts have a larger extent for there Demetrius Son of Seleucus departed from Rome and came to a city of the sea Maccabees 7. coasts here a whole city is set on the sea coasts and in Iustine treating of Alexander the great it is reported of him that he entred into Licia and Pamphilia and won and conquered all Justine the sea coasts this could be taken for no less then whole countreys for Alexanders great minde and huge Army could not march on a molehil or small tract of ground In St. Mark Chap. 7. it is thus written That Jesus departing from the Coasts of Tyre and Sydon came to Galile so that it may thereby be gathered That these coasts were neer the sea for our Savior was no sooner out of the coasts but he was on the sea which shews that sea and coasts be contiguè Iacentia yet no certain definition can I finde of the words Coasts of the Sea but by these and such like descriptions yet this I gather and collect thereby that in respect of the whole World a whole Kingdom lying next may be said to be a sea coast and a whole county in respect of a Kingdom and in my opinion the next town and territories thereof lying next to the seas be in our Law taken to be the sea coasts and no other and therefore some do much erre which take coast to be the edge of Land next the water and shore to be the brinks of the water next the Land quasi duo opposita And because Creeks Havens and Ports be all of them within the charge of this Law and this Statute was materially made in defence thereof and as they differ in appellation so they vary in definition yet they do in some things agree in the material I will therefore deliver my opinion of them Creeks CReeks of the sea is an Inlet of sea cornered into the main Land shooting with a narrow passage into some Angle of the Land and therein stretching it self more then ordinary into the Land and so holdeth not even quarter with the Levant sea and such Creeks or Inlets we commonly term in the Law to be arms of the sea for like as the arm of a man shooteth out from the body so by a metaphor the inlet or corner of the sea let into the Land is called an arm of the sea and although it go far into the land yet the points of land on both sides may well be discovered and this appears in that great arm of the sea on Humber where 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
seem most convenient These words literally taken afford the construction to be according to the opinion of Sir Edward Cook But on the other part I finde by many ancient Book and Authorities of the Law that Taxations and Charges have been generally laid upon Townships and Hundreds in matters of this kinde as in the 37 lib. Assize plac 10. Four several Townships were charged with the repairs of a River because they had passage thereon with Boats and in 38 lib. Assiz plac 15. a Township was there charged with 37 38. assiz the repair of a Bridge And the Statute of Magna Charta cap. 15. quod nulla villa nec liber homo distringatur facere pontes nisi qui ab antiquo facere consueverunt so that if ab antiquo a Township had used to repair Bridges it was tyed thereunto by the implyed construction of this Statute And the Statute of 22 H. 8. cap. 5. gave authority to Iustices of Peace to charge a County Hundred or Town with the repair of Bridges if no certain person were specially tyed to the repair thereof and many times in ancient Statutes and Books of our Law we shall finde Townships and Hundreds charged generally as in Doctor and Student fol. 74. a Township was amerced and by the ancient and famous Statute of Winchester a Township shall be amerced for the escape of a Robber by the highway And 3 Ed. 3. Title Corone in Fitz. pl. 293. a Township was amerced for the escape of a Murtherer and in 11 H. 4. 2. Brook 94. a Town was sessed for the expences for the Knight of the Parliament and might be levied on any persons goods of the town and this was for the uncertainty of the persons and for the infiniteness of the number of them as it is said in Richard Godfreys Case But it may haps be objected on the other part That if a Town or Hundred may be joyntly taxed then it might so come to pass that one mans goods which had no grounds subject to the charge and which could reap nor take any hurt thereby might come to be distrained for the whole tax rate or sess of the Town and another man which had great quantities of grounds there subject to danger might escape free and therefore such exposition to be made of the said Law were not within the rule and compass of equality And another objection may also be made That it is true that by an express Statute or Custom an assess rate or tax may be laid upon a Town or Hundred as was done by the said Statute of the 22 H. 8. and others formerly mentioned but such exposition were contrary to the letter of this Statute of 23 H. 8. of Sewers I do confess that if these two objections could not be answered I should change my opinion It is true That if a tax or sess had been set upon a Hundred by the said Stature of Winchester for the escape of a Robber and that charge had been levied upon one mans goods of the Town as it might have been he had had no remedy to cause his fellow Townsmen to be contributers to him to bear equal share with him and so if the party robbed had recovered by Action against the Hundred and the goods of one in the Hundred had been taken in execution he had no means to get contribution And yet that Law carried that defect with it Three hundred years or thereabouts till in the 27 year of Queen Eliz. cap. 13. wherein Order was taken that if some one or few mens goods were taken in execution upon the Recovery in an Action taken against the Hundred by the party Robbed he or they should have contribution which before that Statute of 27 of Elizabeth could not be had But to give answer to the two objections First if in our case of the Sewers a Township should be Taxed yet this Tax could not be taken or Levied but only of such as had grounds within the charge which had good by the repair or might have hurt by the neglect thereof for in 11 H. 4. fol. 35. it is said for Law That if a town be assessed in the Tax and the Collector doth distrain the goods of a man of the town who was not chargeable thereto that party may have and take his Action of Trespass against the Distrainer and Collector for that he at his peril must look well to it that he whose goods were taken were subject to the charge So in our case of the Sewers if the goods of one which was not subject to the Tax or Assess imposed were taken he might have his Action of Trespass against the distrainer and should recover his damages thereby so this salve cures one of the said maladies But then the case goes further That if the goods of one man of the town should be taken for the whole Sesse of the Town and he is such a person as in truth is chargeable thereunto he can have no Action against the distrainer for taking his Cattle for he is such a person as cannot excuse himself but that he is chargeable This indeed draws the Case to a desperate issue for this seems to be as great a mischief as ever the Statute of Winchester did ever suffer which was remedied by the said Statute of 27 Eliz. but our Case hath not such a Cure provided Therefore it puts me to the old adage of Law Better it is to suffer a mischief to one or moe particular persons then to permit an inconvenience to the whole Commonwealth which concerns a multitude But yet I shall give this objection a better answer I hope then with an old adage for in our Case the party whose goods are taken for the whole town is not without a fitting and convenient remedy for when his goods be taken and he is constrained to pay the whose sessment of the Town he may make his complaint to the Commissioners of Sewers and may give in the particular names of every Townsman and the quantity of each mans Estate which be charged thereto or the true value of their Lands and may crave of the Commissioners of Sewers for to make a Law to make them all to contribute every one according to his portion of Land And in my opinion the Commissioners of Sewers have power to impose a proportionable rate upon every of them according to the quantity and quality of his ground by way of contribution and may award Process to force and compel them to pay the same to the said party whereby it plainly appears that the party so distrained hath a direct remedy to come by his losses In Doctor and Student a whole town was amerced and they met together by common consent and Assessed and Rated every man equally according to his ability and alowed of as a good cause But Commissioners of Sewers may if they can come to the knowledge of the certainty of every mans Estate rate in the primary and original
Sesse every person according to his several quantity of Estate which may be done in this maner when the Commissioners be agreed how much to lay upon such a town then to send for three or four of the Inhabitants and cause them to give in every mans Estate and to make and appoint them Sessors to rate every man or else the Commissioners themselves having true intelligence of every mans Land may easily set the rate and charge upon every particular person in an even and proportionable sum and thus every man at the first shall know his own rate as in the assessing of the Subsidy and no man shall be burthened with his Neighbors charge and these were good courses to be used within both the letter and sence of these Laws And this course was used by the Four and twenty Jurators in Kent in Rumney Marsh who always upon their Oaths set Chart. of Rumney down every particular mans ground in certain and their just pag. 50. quantities and accordingly were the parties severally taxed Howsoever the Tax in my opinion generally imposed upon the town is good as appears by many Authorities and Books before remembred even by this Statute as well as by Custom for in the said Book of the 37 and 38 lib. Assiz 37 and 31 lib. Assiz it doth not appear that the Townships there rated were so taxed by any Custom but meerly by the Law of the Land and so is the learning delivered to be in the Councels Order aforesaid And I do remember that at the Assizes held at Lincoln in Anno 12. Jacobi in a Tryal before Sir Edward Cook then Judge of Assize in the Case of Sir Philip Conisby Knight the town of Mauton was assessed five pounds and Twigmore as much and a distress was taken for non-payment thereof and was justified in a Replevin and the verdict passed for the distrainer and no great scruple was then made of the said Assess laid and imposed generally upon the towns which Case I specially noted because it was tryed and passed for current before the said Sir Edward Cook who had the year before reported the Law in his Tenth Report to the contrary And I am also of Opinion that if a new defence be agreed to be made as a Wall Bank Sewer or any other and a Sesse is appointed for this work and laid upon a town That the same is a good Sesse and well laid as well as in the Case of old repairs where Custom may give Warrant unto it and the Commissioners in their discretion may so do in imitation of the said former rules and presidents and it stands with good wisdom and discretion to imitate and follow ancient and approved Laws and Statutes made in Parliament which are done by the wisdom of the whole Realm And in my conceit a decree made which hath no reference or dependency to former presidents may be doubted whether it be legitimate or not having no ancient Laws to patronize it And thus I conclude my third point of my Case That a Township may be taxed by the Laws of Sewers Tythes HEre is likewise in my Case a Parson Rated and Sessed for his Tythes and is now to be put to the question whether by these Laws he may be taxed for them or not The ancient Commissions of this kinde have very strict words in them to tie every one to the charge of these defences being for the preservation of the Commonweal and this Statute extends it self with a long and large arme to fetch and reach every man that hath grounds lying within the Level and which partake of the good which the defences brings to them to be contributory to the charge It is true that Ecclesiastical and Spiritual persons as Parsons Vicars hold their Ecclesiastical living exempt ab omni onere seculari for they do not hold their Churches of any Lord but of the Lord of Heaven in respect of the spiritual service they do therefore And I take it that Parsons and Vicars hold not their Churches in free alms for then the Founder should be their Lord in point of Tenure and service which I have not observed to be so in any And in our Law Books it appears that Spiritual persons were exempted from Lay and Temporal charges as in Magna Charta cap. 14. A Spiritual person shall not be amerced according to his Spiritual living In Fitz. Nat. bre fol. 228. there Fitz. Nat. bre is a Writ directed by the King to his Officers and Ministers forbidding them that they take not any Toll Murage or Pontage of Ecclesiastical Parsons Vicars and such like and the said Writ sheweth that by the Custom of the Realm no such exactions ought to be taken of them And there is another Writ there to discharge them for paying Customs de bonis suis Ecclesiasticis vel de aliis pro sustentatione sua emptis And also they have this priviledge That the Sheriff nor any Lay-Officer are not permitted to meddle with their Ecclesiastical possessions for in 20 H. 6. fol. 20. and in many other Books it is held that in a Writ of Summons the Sheriff may not Summon a Spiritual person on his Spiritualities but he must rather that he is Clericus beneficiatus non habens laicum feodum and upon this return the party is to take a Writ directed to the Bishop to Summon him on his Spiritualties And therefore if the possessions of Spiritual persons are had in such great esteem in our Law what then shall be done with Tythes which are said to be due Iure Divine I have not read that they shall be charged to any thing but to the repair of the Temple in the 18 chapt of Numbers the 21 22 23 24 25 26 27 and 28 verses The Lord said I have given to the Children of Levi all 18 chapt Numbers the Tenth in Israel for an Inheritance and yet the Levites paid a Tenth thereout to the Priests and so Clergymen in times past paid a Tenth to the Pope and in imitation or rather in reformation thereof by the Statute of 26 H. cap. 3. the 26 H. 8. like is now paid to the King as Supreme head and Governor of the Church here on earth So here be charges paid out of the Tythes but they be Spiritual charges And in Mr. Seldens History of Tythe pag. 13. it appears by Collection and Connexion of Stories divine That the first or Selden the first year Tythe was paid to the Levite The second to Feast at Jerusalem and the third to the Poor And had not the Statute of 43 of Eliz. cap. 2. made the Parson and the Vicar liable and chargeable to the relief of the Poor which was in imitation as it seemeth of the Mosaical Law they had not been bound or tyed to do the same for it is held to be more charity to relieve the Church then the Poor And in payment of Taxes and Subsidies they are granted
Disposition and of good Estate should be put into these Commissions of Sewers the Statute did make choice of four Honorable persons to have and take the nomination of such as should for their Integrity Learning Wealth Wisdom and Experience be worthy to be put into this Commission And therefore the Lord Chancellor Lord Treasurer and the two Lord chief Justices for the time being have by this Statute the nomination of our Commissioners But as these great persons of Honor by their high places are most commonly busied in matters of great importance they many times refer these matters to others by means whereof divers persons in some countreys have of late years crept into Commission which this Statute doth not allow of which do not only want knowledge and experience but which are also transported and carried away with selfwill and serve most commonly to make a faction of the greater number to carry away businesses when the graver and wiser sort are forced being overladen with popular voices to give way to run into contrary courses and are made to surcease from making good and wholsom Laws and Ordinances and sometimes are as it were forced to agree to those which are whose even as the Roman Dictator Fabius having joyned to him the froward Minutius was by the violent stream of his colleague so crossed and overswayed not out of judgement but selfwill that he was forced to give way to Minutius frowardness though it tended almost to the hazard and the overthrow of the whole Roman Army And because the Commissioners are the persons through whose hands the execution of all these Laws must passe I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them And I intend to purge the Commission of such of them as these Laws have disalowed and to that purpose I have framed this insuing case which I take it will give us occasion to call them all into question and to sever the just from the unjust the sufficient from the unsufficient and the learned from the illiterate The Case A. demiseth to B. and C. Land of the yearly value of Sixty pounds cum stauro of the value of Two hundred pounds for their lives the Remainder to D. a free Citizen of Lincoln B. and D. disseise C. of the Land and take the stock C. releaseth to D. the goods absolutely and the Land upon Condition D. dieth in Exile E. his son and heir enters B. and C. who enter for the Condition broken E and Francis Countes Dowager of Warwick and three other Commissioners of the Quorum of Sewers make a Law to raise a Were erected upon a River navigable at the costs of the party because it hindred the current of waters My conclusion is That here be competent Commissioners in number and in Estate which made this Law and that this Law is well decreed within this Statute The case I do distribute in these points viz. Three at the Common Law and four upon this Statute the points I intend by the Common Law are these First whether the Sixty pounds stock can be demised and letten for life with the Remainder over as this case is Secondly whereas B. and C. be two Joyntenants in possession whether one of the Joyntenants and a stranger can so disseise the other Ioyntenant as to transfer thereby an interest and Estate to the stranger Thirdly because the Release dependeth upon the disseisin the question is in what maner it doth inure and whether it shall expel B. out of that moyety because it is made to the stranger and then what is reduced by the Condition whether a possession action or a right Points upon this Statute First whether the Son of the free Citizen exiled is a disabled Commissioner in respect of his person and whether he hath such an Estate either in Lands or goods as will satisfie this Law Secondly whether the Countess may be a competent Commissioner within this Statute Thirdly whether a joynt interest in Lands or goods will make the Ioyntenant a sufficient inabled Commissioner within this Statute Fourthly whether the Were as this case is be raced down or not And hereupon I intend to lay open the whole division touching the Lets Impediments and Annoyances which this Statute speaketh of Argumentum Lectoris I meant it not for a point in this case whether goods might be let with Land nor whether a stock might be leased with a Farm because I finde the Books of 1 H. 6. 1. and many others full in the point that they may And although by the taking of them back again by the Lessor they will thereby suspend no rent yet in the original demise they may be a cause to increase the rent but my point herein is double First whether they will passe in Remainder as my case doth limit them Secondly whether they will inable B. and C. to be Commissioners of Sewers alowed by this Statute I do not onely finde stock let with Farms but also joyned in Real actions with Land for in the Writ of Assize the words be Quod vicecomes faciat Tenement ' illud reseisiri de catallis quae in ipso capta fuerint ipsum Tenement ' cum catallis esse in pace usque c. These doubtless were such goods as stocked the grounds and which usually went with the same for in ancient times when any farmed grounds they usually farmed the stock thereon going and this appears by ancient presidents Sed nunc aliud tempus In the Writ of Ejectione firmae in the Register be contained these words Ostensum quare vi armis manerium de Dale quod C. prefat ' A. dimisit ad terminum qui nondum preteriit intravit bona catalla ejusdem A. ad valentiam c. in eodem manerio inventa caepit asportavit So that in those Writs of Assize and Exjectione firmae the one to recover the Freehold the other the Leasehold We finde goods which went with the Manor or Farm made parcel of the plaint and I take it damages shall be increased therefore for these were such goods as stockt the Farms And in Wrotsly and Adams Case in Plo. Com. Exception was Wrotsley and Adams Case taken in abatement of the Writ because the words bona Catalla were left out of the same Yet in my opinion no estate neither in presenti nor in remainder can be made of Goods or Cattel neither shall they go with the Land in point of Estate but shall passe to the Lessee and after to him in the remainder as a dependancy upon the Farm And the Heir shall have Heir-looms together with the Mansion House as things necessary concurrent therewithal yet the Heir-looms have no descending qualities but they do go with and wait upon the house as necessary Instruments fitting to be used therewith neither can it be gathered by the Book of 37 H. 6. fol. 30. that the Book called The Grail which
was devised by will to A. one of the executors 37 H. 6. to have the occupation during his life the remainder thereof in like maner to B. for his life and after to be disposed by the executors to the Churchwardens of Dale that it did passe to A. and B. in point of Estate but only the use and occupation thereof was disposed to be ruled according to the said Limitations but the property remained in the executors So in Paramore and Yardleys Case in the Com. and Paramore Yardleys case Mannnings case in Matthew Mannings Case in Cooks Reports a Term of years could not be devised to A. for life the Remainder thereof to B. for his life to passe in this maner in point of Estate neither could these Estates be made thereof but by construction the same was disposed of to go by way of executory devise and so the stock in my case was not transferred in point of Estate with the Land but in point of executory disposition of the Occupation and use thereof onely and therefore if one let a stock of cattel or sheep with grounds at the end of the Term the goods as accessary with the Land as principal shall return to the Lessor and during the Term the Lessor hath the property of them and the Lessee the possession thereof and the Lessee shall have the yearly profits thereof for his Rent and here I do end this first point and will proceed to the rest The second Point There be two Joyntenants and one of them and an estranger do disseise the other what interest the stranger gaineth thereby is the question I am clear of Opinion as many books be That one Joyntenant may disseise his companion by an expresse Ouster but when a stranger joyneth therein in what part that doth alter the case is the matter for if the stranger should get a joynt Estate in possession with the Joyntenant whom he joyned withal that were to make a double Joynt-tenancy in uno eodemque gradu for the Joyntenant which committed the disseisin which hath the possession and the Joyntenant which was disseised and which hath the right do hold Joyntenancy still for by 36 Ed. 3. right may hold 36 Ed. 3. Ioyntenancy with a possession and the one may take by survivor from the other in 9 H. 7. fol. 23. That he in Remainder and a stranger may disseise Tenant for life and shall be both disseisors but in that case they were both strangers to the particular Estate Also it is manifest that one Ioyntenancy may be built upon another As if two Joyntenants be disseised by other two Joyntenants of the right semel but not simul But in our principal case Whether one Ioyntenant might hold the possession of a Moyety with his first companion in Ioynture with his moyety in right and can also uno tempore hold Ioyntenancy in possession with a stranger of the moyety upon which the disseisin was committed I suppose he cannot because then he should hold partnership with both of one thing And therefore in my opinion the stranger getteth nothing in my case but is onely a Coadjutor and no Disseisor which gets the Tenancy The third Point But admit the stranger did get a moyety of a moyety by joyning in the disseisin then what alteration this release will work in my case is the next question It is true as Mr. Littelton saith That if there be two Littleton Disseisors and the Disseisee release to one of them he shall hold his companion out of all the like Law is in my case of two abaters and two intruders but if two disseisors be and they make a Lease for years rendring Rent and then the Disseisee releaseth to one of the Disseisors I suppose this release shall inure to both because the Lessee for years whose Estate shall be strengthned by this release is in by the Title under both of them and now they are Tenants of a Reversion onely and of a Rent thereto incident which was not got by the disseisin but was composed by the Legal contract of the parties So if two be admitted to a Copyhold by Tort or to an Office in a Court of Justice unlawfully though their entry be unlawful yet because they came in by admittance which is at the door of Justice I suppose therefore that if a release be made to one of them by the disseisee it shall inure to both because they had some colour and countenance to enter more then expresse disseisors or intrudors have But if a Son and a Stranger disseise the Father and after the Father dyeth and the right descend to the son by this release in Law and by the accession of the right by descent to the tortious possession it doth inure only to the son and although this release was upon condition which by the breach thereof seemeth to set the Relessor in the same state he was before yet it doth not admit the Joynt disseisor which was expelled thereby to become a copartner again with his fellow As if the son and a stranger disseise the father and the father dyeth the stranger hereby is expelled by the descent of this right to the son yet if after a more near Heir is born as the Elder brother dyed his wife Einsent with a son which after the decease of the Grandfather is born whereby the Inheritance of this Land is his yet the other Joynt disseisor which was expelled by the descent of the right of his fellow disseisor by the departure of the right with the possession cannot enter upon his fellow disseisor in my opinion But now the question is further what is reduced by this condition the right only which was released or the possession together with this right for if but a right be reduced then a descent hapning may perchance Toll the entry of the Relessor and so he may be put to his Writ of right in Fee And if it be a right of an inferior degree as in our case it was but for life then he should be with out remedy But in my opinion where the release doth inure by way of 17 Assiz pl. 2. 17. Ed. 3. entry and Feoffment being upon condition it may in that case by the breach of the condition reduce the possession and give the Relessor a Re-entry because in Intelligenti a legis the Land was passed thereby and not a right only But if it had inuted by way of Mitter le droit only I take it Bevils Case 4 Report then it would reduce but a right But in our case I suppose if it had had any working at all it was by Entry and Feoffment yet I think nothing did inure thereby to the stranger which in my case is called D. because he wanted the Freehold whereupon it should inure And so I end my Common Law points and I will now in hand with my Statute The parts of the Statute whereupon I do ground my subsequent
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
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
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
Office our Common Law thought it fit to inable him to dispose of his Temporalties and in 21 H. 7. fol. 12 13. 11 H. 7. the case is put by Bridges and confirmed by Justice Sylliard and was not denied by any that an Obligation made by a Major and Commonalty Dean and Chapter Abbot and Covent shall not be avoided for the Nonage of the Major Dean or Abbot yet all these serve in place of government howbeit in the said matters their Nonages shall not impeach them And in the third of Isaiah it is said I will give them 3 Isa children to their Princes and babes to rule over them noting thereby an unfitness in them to govern but debarred them not of the place and of this matter this shall suffice But now admit as oftentimes it falls out that Commissioners shall sit in the execution of this Commission of Sewers which have not taken the Oath which have not Lands of value or which is not a free Citizen and yet there be Ordinances Decrees and Laws made at those times Now whether those Laws and Ordinances so made by a disabled Commissioner be void or not is the question or whether the disabled Commissioner shall only undergo the penalty of Forty pounds There was a Statute made in 6 H. 8. cap. 10. whereby it 6. H. 8. was Enacted That the Chancellor of England for the time being should make no Commission to any person or persons except he had Lands and Tenements of Estate of Freehold to the yearly value of Twenty pounds or else be Justice of the Quorum within any of the shires where he should be made a Commissioner and if any such Commission were directed to any person or persons not having Lands or Tenements to the yearly value of Twenty pounds or not being one of the Justices learned of the Quorum as aforesaid That then every such Commission and all Presentments and Accusations had and presented before any such Commissioners be utterly void and of none effect But this Statute is in time expired long ago and therefore it is no interruption to our Commissioner for although the Statute of 23 H. 8. which I read on hath a Clause in it in effect That all every Statute and Ordinance heretofore made concerning the Premises made in the time of the said King or of any of his Progenitors not being contrary to that Statute should stand in force yet these words do not set on foot a Statute expired in time as that of 6 H. 8. is Also in the said Statute of 13 Eliz. if a Termor or Lessee for years be in Commission all Laws made which concern Lands whereof he is a Farmer are void as to him vide antea But to relie on our Statute of 23 H. 8. in my opinion it 23 H. 8. doth not avoid any of the Laws and Ordinances made by disabled Commissioners but doth onely inflict the punishment and penalty of Forty pounds a piece upon every of them for every time they and every of them shall sit in or about the execution of this Commission yet it seemed in the case de Jure Regis Ecclesiastico That whereas the Statute of first of Elizabeth which authorized the Queen to grant Commissions to natural born subjects that if she had granted the same to an Alien that acts done by him had been void But now my case proceeds to the next point or step and that is touching the Law and Ordinance made to race the said Were I inferred this clause in my case because I had not formerly occasion or fit opportunity to treat of the Lets Impediments and Annoyances which be contained within this Statute of 23 H. 8. and therefore I took this occasion to close up this days exercise with the discourse of them These by name are such Impediments Annoyances as this Statute speaketh of 1. Streams 2. Mills 3. Bridges 4. Ponds 5. Fishgarths 6. Mildams 7. Locks 8. Hebbingweres 9. Hecks and 10. Floodgates And the rest must be cōprised within these general words videlicet Other like Lets and Impediments And the discourse upon all these will rest most upon the Statutes heretofore made touching the same And the first Statute thereof made is in Magna Charta Mag. Chart. cap. 23. cap. 23. Omnes kidelli deponantur de cetero penitus per Thamesiam Medweyam per totam Angliam nisi per costeram maris This extends not to the Kings keddles per keble in 13 H. 7. 35. what this word kidellum signifieth appeareh by the title of that Statute which is Weres The next Statute to this is 25 Ed 3. cap. 4. which doth Enact That all Mills Weres Stanks Stakes Kiddels were levied 25. E. 3. and set in the time of King Edward that Kings Grandfather and after whereby Ships and Boats were disturbed that they might not pass the Rivers as they were wont should be cut and pulled down without being relieved The said first Statute is general that all Weres should be put down but by the Seacosts yet this word All are intended of such only as were erected without lawful Warrant and the said Statute of 25 Ed. 3. doth explain the generality of the said former Statute For thereby it appears That Weres erected in Navigable Rivers where Ships and Boats were wont to sail should be extirped because they were a hinderance to Navigation but this extends only to Navigable Streams which have been Navigable by use and Custom and it is manifest by this Statute that these Weres which were so to be put down must be only such as were erected in the time of Ed. the first and sithence because those seemed to be erected without lawful authority and being but erected in those times they had not the countenance of Custom and Prescription to strengthen them The next Statute in time is that of 45 Ed. 3. cap. 2. which confirms the said Statute of 25. Ed. 3. and then adding thereto that if any such annoyance be done it shall be pulled down and that he which shall relevy such annoyance and be thereof duly attainted he shall incur the penalty of One hundred Marks to the King to be levied by the Estreats of the Exchequer and the penalty is thereby given for the inhauncing of such Weres Mills Stanks Stakes and Kiddels This Statute is in part a confirmation of the said Statute of 25 Ed. 3. and in other part thereof it is a new 45 Ed. 3. Act in these points First in the forfeiture of a Hundred Marks Secondly this is the first Statute in my opinion made against inhauncing of such things which are counted annoyances And Thirdly it gives the like penalty against him which shall relevy the annoyance as against the inhauncer And because this Statute depends upon the said Statute of 25 Ed. 3. it extendeth therefore but to Navigable Streams The Statute of 1 H. 4. cap. 12. is a Statute in these points of great
been always before covered with waters But shores and such grounds which Alternis vicibus were wet and dry were not accounted relinquished grounds and that relinquished grounds belonged to the King but the shore and casual drowned grounds might belong to a subject The Personal Profits of the Sea did consist in Wreck Flotsan Jetfan Ligan and great fishes which are due to the King by the Royal Prerogative of his Crown But subjects might have the Inheritance of the first four by Prescription and of the last by Charter from the King Then I descended into Islands Which are of two sorts First on the sea old ones and new ones That both were within the Kings power and the new ones His in property Fresh Islands in the Land might belong to subjects The nature of them all were that they were undique circumdatae aquis I then landed at the shore which in definition containeth those grounds which extend from the lowest Ebb to the highest Flood That the King had the property thereof de Jure a subject might have it ex perquisito and the people had their usum necessarium I proceeded further to the Coasts whose content and contingent I described so near as by Histories I could inform my self And shores and coasts I held them to be Maris accessoria From these I proceeded to Creeks Havens and Ports and these I set forth in their several kindes And I concluded with the compass of my Statute and my Commission and with the diversity thereof That within the circle of my Statute Seas Isses Shores Coasts Ports Havens Creeks gained and relinquished grounds were comprehended because that might depend in posse but yet the Commissioners which was in presenti operative did extend but to the utmost Banks and Walls towards the seas And I concluded the points of my Case with the difference between grounds left and grounds gained from the seas and thus I ended my first Lecture The second Lecture IN my second Lecture I came on Land and took upon me to set forth her friends from her foes her friends I counted such as had defended her from the violence of the seas and from inundation of salt waters And these were her friends viz. Banks Sewers Goats Calceys and Bridges these are to be maintained and repaired and are the Defences which I fully treated of And these were the enemies Streams Mills Ponds Fishgarths Mildams Locks Hebbingweres Hecks and Floodgates These are Lets and Impediments which this Statute speaketh of and are to be corrected reformed or put down as cause shall require I shewed then that Rivers were of two kindes Royal and Common Rivers That there were other inferior kindes of those watery instruments which might take place after Rivers as Ditches Gutters Sewers Pools Ponds Springs That water is the substantive of all these and if it be a running water at random then it is a stream if it be a running water and pent within Walls or Banks then it is a River Gutter Ditch or Sewer These in their several kindes I did distinguish And Springs I held to be the vital spirit of them all I then described the Commissioners maner of proceedings which might be three maner of ways By view and survey and wherein they consisted By Jury and on what parts that stood By discretion and the diversities and definition thereof After these I took upon me by how many several ways the defences might be maintained which were nine in in number 1. Frontage 2. Ownership 3. Prescription 4. Custom 5. Tenure 6. Covenant 7. Usus Rei 8. A Township and 9. By the Laws of Sewers All these I proved by Reasons Presidents and Authorities and did at large discourse of them Then I came by the course of this Case to treat of Sesses Taxes and Lays set by Commissioners of Sewers whereby I found some Inheritances there were which were subject to these sesses as those that follow Houses Land Meadow Pasture Woods Heaths Furs Moors Marishes Rents Ferries Pischaries Commons Free passage Parks Warrens And many Inheritances I found in reason freed from these Taxes and Lays as Tythes in Spiritual hands Annuities Chases Pensions Proxies Portions Marts Fairs Markets Offices things in Action Conditions Contingents Uses Presentations Founderships I also found these Sesses of three kindes viz. Customary and then they may binde the Mountains as well as the Valleys Hereditary and then the particular Tenant and the Reversion must both contribute Temporary which bound the Possessor And here I ended my second days Lecture The third Lecture MY third Lecture I did distribute into three general heads which were meerly the grounds of the execution of these Laws Which consisted either in punishing the body and person of the Delinquent with 1. Imprisonment 2. Fine and 3. Amerciament Or in doing Execution upon the Offendors Estate 1. By Distress or 2. By sale thereof Or otherwise in extending it upon a mans personal Estate by 1. Charging of the Land perpetually or 2. By the absolute sale thereof And under these general Rules I comprised these particulars which follow First for the Honor of this Commission and for the more necessary execution of these Laws I found them out a Court wherein I set forth in what cases Commissioners might Imprison the Bodies of Delinquents and in what cases they might impose a fine and when Amerciaments be due and then I shewed that for some transgressions neither Imprisonment Fine nor Amerciament was to be imposed I then came to Distresses and held a treble distinction of them videlicet that some were 1. Judicial and issued out of the Judicial Records of this Court 2. Other Ministerial 3. The third Legal wherein all these Diversities I screwed out by proved Authorities Then I shewed in what places these Distresses might be taken when upon the Land charged when within any place within the extent of this Commission and sometimes within any place of this Realm And when the proper goods of the party might be taken and when the goods of strangers and when goods may be sold by this Law Afterwards according to the order prescribed me by my Case I declared that there were some Interrupters to the Execution of these Distresses The one was by suing Replevins wherein I took these diversities That a Sheriff being an inferior Officer could not of his own power deliver a distress taken by warrant of Sewers But that the Commissioners of Sewers are bound to obey a Replevin coming out of the Kings Courts at Westminster Quia de altiori natura Thus yet notwithstanding goods taken by a Judgement were exempted from that Replevin Then I proceeded to the charge of Lands whether a perpetual charge might be imposed or not And from thence I came to Sales and those I distributed into four points First for what cause 2. What Lands 3. Whose Lands 4. To whom these Lands might be sold I after came into the Tractate of Legal proceedings which may be used in our Court of
Sewers and first when and which presentments of Sewers are traversable and which not And then wherein a party wronged may have his justice in this Court and in what cases not And whether the strict words of the Statute would admit of Exemptions and the difference of them that some were general others special and therein I ended the Third days Exercise The fourth Lecture THe fourth day I treated of the Ability and Non-ability of the Commissioners either by reason of some personal defect whether it consisted in Sex Exile or other impediment that way And what Estate and value of Lands made one a competent Commissioner and what did the contrary and the times when the Commissioner must have this Estate Then I delivered my opinion upon the words of the Statute which be valuable Hereditaments to inable a Commissioner and which were not Then I proceeded to intreat of a Commissioners Ability in goods and moveable substance and which were moveable substances within this Statute and which not And because in the Citizen-Commissioner Three things were required to make him able viz. Freedom Estate in goods and Resciancy I therefore handled fully all these parts thereof After all which because I had before this time no fitting opportunity to treat of Lets and Impediments I therefore in this Lecture disposed my case in such sort as it took hold of them all And first because the Statute I read on confirmed all other former Laws concerning the same I therefore repeated them all from Magna Charta to this very time and gave an explanation or declaration of them all I then distributed the learning of these Laws into 3 heads First that these which had the strength of a Custom and were grown to be particular Inheritances of private persons could not be extirped Secondly and whereas some were newly erected without Authority they might be overthrown Thirdly and whereas some were ancient and were exalted above or beyond the ancient assize the excesse might only be abated with these differences I satisfied these Statutes Then came I to our Statute I read on therein I took new diversities that was upon the Three Clauses of my Statute The first did maintain the defences The second destroyed the offences And the third was a general Clause reciting the defences and offences together and did give the Commissioners power to reform or amend repair or put down as cause should require Wherein I published this learning thereupon That if an old Wall Bank Bridge or other Defences were found to be out of use it might be extirped And if a Were Mill Mildam Stanks Stakes Piles or Floodgates were found beneficial to the publike good they might be preserved and maintained And I vouched some presidents at whose charges the said Lets and Impediments should be removed and I ended my Argument with this In what cases Commissioners of Sewers might make unnavigable Rivers navigable and and where not and in that I concluded my fourth Exercise This is the extent of my accompt wherein I think I have done my self some wrong in making so short a Breviate in omitting many things which I truly took pains in but because you were all present and privy to my layings out I hope though I have omitted them in my extreats you will allow me them in Summa totalis But by your good favors I intend not to break Custom or Promise in any thing for I have some stock more left which I told you when I began I had cast under hatches which now also I mean to distribute amongst you And because there is some part of this as yet left untreated of I will now therefore proceed to the unfolding thereof And the same consisteth in these words of the Law That the Commissioners hereafter named in any Commission according to the purport of the same have full power and authority to make constitute and ordain Laws Ordinances and Decrees and the same Laws and Ordinances so made to repeal reform amend and make new as the cases necessary shall require in that behalf So that whereas other Judges have power onely Jus dicere these Commissioners have also power Jus facere yet this Statute gives not the Commissioners of Sewers absolute power and authority to make and ordain Laws but secundum quid for these Laws which they are to make must be for the safegard conservation redress correction and reformation and more then these they must be necessary and behoofful so they must not be made out of self-will and affection but after their Wisdoms and Discretions Wherein I conceive that never a sentence in this Statute is seasoned with more variety of caveats and grave directions then this Statute is in this very clause of making new Laws so that these Laws ought to be made to amend not to make worse they must be necessary not nugatory they are to be composed with wisdom and disposed of with good discretion and they ought chiefly to be made Pro bono publico and not Pro privato alicujus New Laws are to be ordained for these purposes onely that is either for making and erecting of new necessary defences or for the overthrowing of some unnecessary Lets and Annoyances or for the continuance of the ancient And in alteration new addition or diminution of a Wall Bank Sewer Goat Calcey or other Engine a new Law is to be made for the effecting thereof Also if an ancient Wall Bank or other Defence be worn out of use and is altogether unnecessary but in the Wisdom and Discretion of the Commissioners and that a new one in another place were more convenient for the safety of the countrey this must be all done by a new Law But here a matter of Law will arise and another matter of great caution The matter of Law will rest in this Whether an ancient Wall Bank or other Defence which is grown out of use may be overthrown and pulled down and in my opinion it may by the said third clause of the Statuâ—e wherein power is given either to maintain them or to put them down But because I have formerly handled this point I will therefore proceed to the caution which is of great weight and importance for whereas one or moe persons are by Tenure Covenant Custom Prescription or otherwise bound and tied to repair and maintain the said ancient Bank Wall Sewer or other Defence at their several and peculiar charges if then the Commissioners of Sewers should make a Law to overthrow or remove the same and should execute the same accordingly and then should make a Law to erect and build a new Wall Bank or other defence in another place more convenient yet the parties which were bound to maintain repair the former old Defences should not so be tied and bound to repair and maintain these new erected ones because by the destroying of the ancient Walls and Banks the Prescriptions Customs Tenures and Covenants were either utterly dissolved or otherwise suspended