and discretion The words of this Commission upon which I framed this part of the Case be these videlicet We have assigned you Theophilus Earl of Lincoln Robert Lord Willoughby of Earsby Sir George Manners Knight Sir Philip Tyrwhit and Sir John Wray Knights and Baronets Sir William Pelham Sir John Read Sir Edward Ascough Sir Hamond Knights Anthony Erby Esq Quor ' the said Earl Lord and Sir George Manners we will to be three to survey the Walls Banks Drains Sewers c. and the same to cause to be repaired amended or put down as cause shall require after your wisdom and discretions and to do after our Statutes as also to inquire by the oathes of lawful and honest men of those places where such default be By the Tenor of which words I conceive That Commissioners of Sewers have power by their Commission to proceed three maner of ways viz. first By Survey 2. By Jury 3. By discretion wherein it behoveth Commissioners of Sewers to know perfectly how to use and dispose of their powers with due understanding of these parts of this Commission and Law And the better to prepare them herein I shall take some pains to declare unto them what they may do by survey without a Jury and what by Jury and what by their discretion without both Survey and Jury View and Survey VIew is the primary part of Survey and Survey is much but not altogether directed by view It is true that view is of great use in the Common Law and it is to be done and performed in person and such views are taken in Tryals of Assizes yet by the 36 Hen. 8. in Dyer fol. 61. Peningtons Case a very personal view needeth not in an Assize if upon examination of the Jurors it may appear that a competent number of them know the grounds in question in such sort as they can put the party in possession if he recover but in an Action of Waste an express personal view is both required and requisite for the words of that Writ directs the Sheriff Accedere ad locum vastatum In a word there is a diversity between a view and a survey for by the view one is to take notice only by the eye but to survey is not only to take notice of a thing by the eye but also by using other ceremonies and circumstances as the hand to measure and the foot to pace the distances And the Commissioners Surveyors have power to take information by examination of others And although Judge Fitz. in 27 H. 8. fol. 27. holds a Surveyor of very small esteem in his power and authority that is That he may hear see and say nothing Oier voier rien dier Yet under the favor of that book I take a Surveyor to be of more esteem and authority for by an old Statute made in 4 Edw. 1. Rastal Surveyors first he is there described to be a man which is to view the work and to make inquity 4 Ed. 1. and to set down which be Copyholds which be Freeholds c. whereby it appeareth that a Surveyor is an actor and not a looker on as Mr. Fitzherbert would have him so by these descriptions the Commissioners may inform themselves what is meant by the word Survey put in the Statute And many of our Statutes take notice of such an Officer as a Surveyor For in the Statute of Bridges and highways there be such Officers appointed and in the Statute made for the erection of the Court of Wards and Liveries there is a grave Officer appointed who is called the Surveyor general of that Court and he is a Judge in matters there handled And there is also an Officer in this Statute of Sewers called a Surveyor who hath no judicial power but is meerly an Officer What things Officers of Sewers may do by Survey onely EVery thing which Commissioners of Sewers are to do must be by true understanding of their authorities and this must be so done that they make such distinctions differences and applications as may stand with knowledge skil and learning or otherwise their proceedings will prove irregular And therefore it is not only meet to describe the Officer Surveyor as formerly I have done but also his Office which I now mean to do First Commissioners of Sewers may view the Defences and thereby may inform themselves which stands in need of repairing and amending and which not and wherein the defaults and defects appear to be and what they be Secondly they may by survey take notice and knowledge by conference with Carpenters Masons Smiths and other Officers what things are fitting to be provided for effecting the works and what sums of money will be spent for the finishing thereof Thirdly the Commissioners may by view and survey take knowledge of the lets impediments and annoyances in the Banks Walls Rivers Streams Gutters Sewers and of the height and lowness of the said Banks and Walls and may thereby discover and finde out the wants imperfections weakness and strength of them and so may cause the lets and impediments to be removed and the wants to be supplied and the weak places strengthned as cause shall require Fourthly also by survey onely they may sufficiently inform themselves of the incroachment and of the straitness depth wideness and shallowness of the Rivers Streams Gutters and Sewers and may view the defects in these kindes These things I have produced as proper to be performed by view and survey of the Commissioners and now I shall proceed to the rest Things to be done by a Iury. FIrst what person or persons did erect and set up any let and impediments as a Floodgate Mill-dam or such like must be found by Jury for here the words of the Statute are to be observed which are these And also to inquire by the oathes of good and lawful men of the said shire or shires place or places where such defaults or annoyances be as well within liberties as without by whom the truth may rather be known through whose default the said hurts and damages have happend or who hath or holdeth any Lands or Tenements or Common of pasture or profit of fishing or hath or may have any hurt loss or disadvantage by any maner of means in the said places as well near to the said Dangers Lets or Impediments as inhabit or dwell thereabouts by the said Walls Ditches c. So that the first Article is full within the words of this Statute and therefore it must be done by Jury and no other accusation is of sufficient strength in the Law to put a man to his answer And herein the makers of these Laws did sagely for how should Commissioners of Sewers take notice by view or survey of such things as are done or committed in their absence Secondly if any Wall Bank River Sewer or other defence be defective by neglect or sufferance of such as should repair the same the Commissioners of Sewers are to inquire by
in their Convocation house a Councel meerly consisting of the Clergy and then are confirmed in Parliament of which house also they are a Member And therefore in my opinion seeing Tythes are so sacred a duty that a Lay-man could not have any help for at the Common Law and were exempt from temporal and prophane uses I am therefore of opinion That they are not to be rated or taxed by the general words of these Laws Yet I am of opinion that Tythes in the hand of a Temporal or Lay-man are to be rated by these Laws for when they are come into his hands Tunc res spirituales fiunt temporales transeunt decimae in Catalla But I must here leave these Ecclesiastical persons and their Church livings There is another point of this Law will reach unto some of their possessions as to their Gleab Lands which belong to their Churches and their Meadow and Pasture grounds for these be not sacred as Tythes be But came to them by the benevolent gifts of Laymen and not ex duo dei evangelii as Tythes did and so they took that burthen with them from the Lay-donor which after may be imposed upon them And therefore such Parsons Vicars or other Spiritual persons which hold a plough Land in Culture are chargable by the Statute of 2 Mar. towards the repair of the highways as other Lay men be But in that Statute there be Ecclesiastical Officers used as Churchwardens whereby it was conceived that that Statute had an eye to bring Ecclesiastical persons within the reach of it And so for their houses and grounds I take them to be within these Laws of the Sewers for the own Lands are also chargeable thereunto and yet on earth within His Dominions He is said to be caput Ecclesiae and as much reason were it to exempt His possessions as theris if the respect of the person should bear any such sway in the Case Also I do finde by divers ancient Records That Abbeys Priories and other Spiritual possessions have been chargeable to the repair of Bridges Calceys Banks and High-ways by Custom and Prescription as appeareth also by the Books of 11 H. 4. fol. 82 83. and 44 Ed. 3. Fitz. 11 H 4. 44. E. 3. Title Bar. pl. 301. and I take it that by a very express and special Custom or Prescription a portion of Tythes in a Clergy mans hand may be charged with the the repairs of Bridges Ways Walls or Sea Banks but not without a direct affirmative Custom for I suppose that they may as well indure a charge in this kinde as a charge in a Modus decimandi And so I conclude this part of the Case That the person was not to be sessed for his Tythes by the general words of of this Law A Copyholder HEre is also a Copyholder taxed within my Case for his Copyhold Land and whether he for his Copy-hold and the Lord for the Freehold of that soil shall be assessed therefore is another question A Copyhold by the Custom of the Manor yieldeth and affordeth to the Lord Seigniory Rent Fines due upon admittances and such like duties but the Copyholder hath the real and visible profits of the soil therefore both Lord Copyholder receive Et commodum salvationem by the said defences And therefore the words of this Law be exceeding copious and full in this point of sesse viz. To inquire who hath and holdeth any Lands or Tenements or Common of pasture or fishing or hath or may have any hurt or damage or losse by any means in or near the said places and in this case the Lord holdeth the said Land in Tenure though not in Culture and many ways may have hurt and damage As if the Copyhold were overflowed by the Sea the Lord should lose his Freehold of the soil his Seigniory yearly Rents and Fines for admittances and all other perquesites So that the said words of this Stature beat mainly upon him But as there be reasons to be urged against him so there be matters to exempt him from this charge and to lay the burthen on the Copyholder First though he be Lord of the Copyhold yet he is seized of the Freehold thereof but in Imagination and construction of the Law for the Copyholder is pernor and taker of the visible and substantial profits Secondly the charge of repairs respect the possessioner in presenti which is easie to be found out and not imaginary owners as the Lord is And Thirdly if the Lord owner should both be charged pro una eademque re which the Law doth never permit for this is not like the Case of Lord and Commoner they there shall be charged the one for his Soil and the other for his Common for in this case the Lord is the immediate proprietor of the Soil and he hath the present and real occupation thereof as well as the Commoner hath the use of his Common and therefore they shall both be taxed to these repairs diversis tamen respectis But for the Copyholder it may be objected that he is not within this Statute for in Heidons Case in Sir Edward Hcidons Case Cooks 3 Report it is truly said That a Copyholder is not within the Laws and Statutes which alter the Service Tenure Interest of the Land or other thing in prejudice of the Lord and this is the cause that a Copyholders Lands cannot be extended or put in execution upon the Statute of Westminster the Second nor in extent upon the Statute of Acton Burnel and De mercatoribus for if they should then might the Sheriff make the Lord new Tenants without surrender and admittances which is contrary to Custom the life and essence of all Copyholds yet there is another good rule put in the said Case of Heidon that is That where a Statute is made for the general good and wealth of the Realm and that no prejudice can come to the Lord by alteration of Tenure Service Estate or Custom there Copyholds may well be within those Statutes Therefore now it is to be considered whether this Statute of Sewers will in any sort hurt or prejudice the Lord or no for it is certain that these Laws tend as much to the wealth and welfare of this Realm as any can do and in rating and assessing these Copyholds to the repairs of Banks Walls and Sewers c. it alters neither the Copyholders interest nor the Lords Tenure nor doth it in any sort prejudice the custom of the Manor But then it may be objected That if sesse be imposed upon a Copyholder for his Land and be not paid these Laws gives sale of Lands which indeed is the onely clause of this Statute which is material to exempt a Copyholder out of these Laws for clearly I take it That Commissioners of Sewers have no power to decree the Copyhold Land away for non-payment of the sesse Yet I am of opinion that a Copyholder though he be not within
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
I take it these few distinctions do fully declare my opinion touching those matters The Statute of 23 H. 8. which I read on touching and concerning Lets Impediments and Annoyances hath these words in it in effect And the Commission giveth Authority to Edmond Lord Sheffield Sir Philip Tyrwhit Sir Nicholas Sanderson Knights and Baronets Sir Richard Aurcots Sir John Thorold Sir John Read Sir Charls Bouls Sir Ralph Maddison Sir William Hansord Sir Francis South Knights Thomas Tyrwhit John Bolles and Nicholas Hamerton Esquires whereof the said Baronet and Baronets were of the Quorum to survey the Walls Streams Ditches Banks Gutters Sewers Goats Calceys Bridges Trenches Mills Mildams Floodgates Ponds Locks Hebbingweres and other Impediments Lets and Annoyances and the same to cause to be made corrected repaired amended put down or reformed as cause shall require after their wisdoms and discretions and therein to ordain and do after the form tenor and effect of all and singular the Statutes or Ordinances made before the first day of March in the 23 year of H 8. touching the Premises or any of them as also to inquire by the Oaths of honest and lawful men of the said shire or shires place or places where such defaults or annoyances be as well within liberties as without by whom the truth may rather be known through whose default the said hurt and damages have happened and who hath or holdeth any Lands or Tenements or Common of Pasture or profit of fishing or hath or may have any hurt loss or disadvantage by any maner of means in the said places as well near to the said Dangers Lets and Impediments as inhabiting or dwelling near about the said Walls c. and Impediments aforesaid and all those persons to tax assess and distrain In a former clause of this Statute the Commission giveth power to survey the Walls Banks Ditches Gutters Sewers Goats Calceys Bridges Streams In which clause these as necessary Defences are ordered to be repaired Then comes another clause wherein these things are recited as Lets and Impediments videlicet Streams Mills Bridges Ponds Fishgarths Mildams Locks Hebbingweres Hecks and Floodgates So that by these two clauses the first sort were to be maintained and not destroyed and the second sort should have been destroyed and not repaired And if these two first clauses had been alone then the Commissioners had been bound to maintain the one and destroy the other without any toleration but then came in the said third clause which is the clause of moderation and therein as well the Defences as the Lets and Impediments come all in one clause promiscuously put together and so the words amend correct repair and put down is therein referred to them all so as in my opinion all defences as Walls Banks Sewers Calceys Goats c. be not to be maintained because in tract of time some may prove unnecessary and unuseful which for that cause may be pulled down so all Mills Mildams Floodgates Weres Stanks Stakes Kiddels and such like are not to be put down and overthrown but such as are ancient and are thereby grown to be the proper inheritances of men and such also which are useful and necessary are to be maintained kept and repaired for in some great Havens and Ports great abundance of Piles and Timberposts are set in the waters to stay the rage force and violence of the waters for the safegard of the Port and Haven It were a very ridiculous exposition of this Law to urge the Commissioners to overthrow those things which are helpful and not hurful for this Statute did foresee that these Mildams Stakes Stanks Floodgates Weres c. were not at all times and in all places hurtful and therefore was the said clause of the Statute inserted which gave the Commissioners power to put down such as were Lets and Annoyances in truth and where they were used for strengths and were of good use to maintain the same And this construction I take it is fully maintained by this Statute but more especially by the Statute of 7 Jacobi cap. 20. where Peres Piles Jetties and the like set for fortifications 7 Jac. Reg. cap 20. and strengths are expresly ordered to be maintained And upon this part of this Law I do collect these insuing matters First that if one do erect and build a Were Mill Mildam or other thing on a River Navigable to the hinderance of Navigation or if there was an ancient Were which was inhaunced of late years the Commissioners of Sewers are to order him that did erect the one and he which did inhaunce the other to pull down the first and to abate the excess of the other at the Costs and charges of the owner and if he or his Assigns or Heir shall contrary to the Decree Order or Judgement of the Commissioners after the same hath been reformed relevy the same again or do continue the same contrary to order the punishment of One hundred Marks is to be imposed upon the offendors as by the Statute of 1 H. 4. and 12 H. 4. formerly appeareth And if one which is a stranger of his meer malice or own 1 H. 4. 12 H. 4. wrong doth pitch down Piles or set down Stakes in the Rivers and Streams he is to be fined or amerced for this offence as the case shall require and he is to be ordered to remove the Nusans at his own costs and charges and if it cannot be found out who did the Nusans then the Commissioners of Sewers are to order those to remove that annoyance which in all likelyhood are to sustain most damage thereby Et ita factum fuit in 42 lib. Assiz plac 15. and 42 lib. Assiz this Statute extendeth to Rivers and Streams Navigable as well as to such as be not Navigable And touching the removing of Nusances I shall put the Commissioners some presidents ruled and adjudged in our Books of Law which come fully to the purpose of the matters and things I now treat of In 32 Ed. 3. fol. 8. an assize of Nusans was brought by A. against B. for that B. had made a Trench over a River 32 Ed. 3. and drew away thereby part of the waters and stream another way then that which it did formerly use to run and thereby surrounded the grounds of A. and the assize passed for the Plaintiff it was adjudged that the waters should be removed into the ancient current channel at the costs of the Defendant and the Plaintiff recovered his damages Et quod defendens capiatur out of which case I observe these things First though an assize was a private Action yet the Nusans was tam querenti quam populo to the Plaintiff for drowning and surrounding of his grounds to the people in changing or diverting the ancient course of the waters so that for the people the offendor was ordered to reform the Nusans to the King he was fined and the Plaintiff for his own private
title to Land by Action Condition or Entry or he which hath a contingent use shall not be taxed for them Neither was Cestui que use at the Common Law before the Statute of 27 H. 8. of uses nor is the Bargainee of Land before the Deed be inrolled sessable by this Law Neither is one who hath the presentation or nomination to a Church as Patron or he which is Founder for his foundership Taxable within this Statute yet they be Tenements the largest words of charge within this Law but the Law intends the immediate possession of such Tenements which be proficuous and not these things which be Tenements in Law and which be but conveyances and their fruit is Ceremony without Substance This Law setteth down such things for the which one is chargeable viz. He which hath Lands Tenements Rents Commons of Pasture Profit of Fishing or other Commodities and such as have Safety Profit Defence or any other Commodity These be the words of charge recited by this Law This word Land is of large extent for it reacheth to house Arrable Pasture Meadow Mills Tofts and to all other Edifices Moors Marishs Woods Wood grounds for all these the earth is the substance Et omne solo cedet and the several increases thereof be but qualities The word Tenements is of larger extent then Lands for it containeth all which the word Lands doth and all things else which lyeth in Tenure so that I think it shall be but labor lost to enter further into the particulars thereof Lord and Tenant IF there be Lord and Tenant and the Tenant holdeth of the Lord by yearly Rent services the Lord may be rated as well for his Rent as the Tenant for his Land to Annual repairs as well as to accidental by reason of these words in the Statute that is That every one be rated and taxed according to the rate of every persons Rent Tenure or profit here be full words to charge the Lord for his Rent and so Rent charges and Rent seck shall be subject to sesses in this kinde for otherwise the Tenant of the grounds may be undone thereby in regard the Rents going and issuing out of the grounds may amount to as much almost as the yearly value of the grounds do But if the Rents be so smal as they are scarce worth the gathering then in discretion the Commissioners may spare them for De minimis non Curat Lex Also whether the remainder man and he in Reversion depending upon an Estate in Tail shall be rated and taxed or not by the power of these Laws is an apt question for this place and therein my opinion is That being dry and fruitlesse Remainders and Reversions they shall not be sessed to the repairs but the Tenant in Tail in possession shall be solely charged for it is more to be feared that Tenant in Tail will cut off the Remainder and Reversion by a Recovery then that the Sea shall drown his Estate by an overflow Lessee for years and he in Reversion IN the Case of the Lessee for years and for life and those in Reversion and Remainder there is a greater cause of dispute then between Tenant in Tail and he in the Reversion And because it is an often Case I have therefore taken the more pains to resolve the same First the Lessee is in the present possession and so is subject to all ordinary charges and with this agreeth Jeffrays Jeffrays Case Case in Sir Edwards Cook 5 Report for there the Case was resolved that where the Inhabitants of a Town were assessed towards the repair of a Church there the Lessee for years was charged and not the Lessor though he had a yearly Rent reserved For in point of the Rent this Case and that will differ by reason Rents be expresly within this Law but I now speak of a Lessee where no Rent is reserved In 17 Ed. 4. fol. 6 a Tenth was granted to the 17 Ed. 4. King by Parliament of the value of their Lands and the Lessee for years was charged therewithal and so was the Law there taken if the Parliament had given the Tenth part of the issues and profits of the Lands The Case of the Proxies in the Irish Reports doth in my Opinion in reason resemble this Case for the Case was Case of Proxies there That the Bishop of Meath in Ireland had a Proxy of fifteen shillings payable out of the Commandry of Kells then parcell of the possessions of St. Johns all which came to the Crown by the dissolution of Monasteries in that Kingdom and after the said Bishop granted the said Proxies to Queen Elizabeth and after Q. Elizabeth made a Lease of the Commandry to Dr. Forth reserving a yearly Rent without mentioning the Proxy And it was there resolved That Doctor Forth the Lessee for years should be at the charge to pay the said Proxy with all the arrerages thereof which did incur in his time And so in the case of a Rent charge the Lessee is chargeable and he is to pay the Tythes and the Composition money due therefore So that these Cases sway strongly against the Lessee for years to lay the whole charge upon him and to exempt the Lessor But yet we must here distinguish and make a difference between Annual repairs in ordinary things and extraordinary repairs for to furnish the defence with petty reparations they shall be laid only upon the Lessee for years or for life but if a new Wall Bank or Goat or Sewer be to be built new and erected or if the ancient defences be decayed in the main timber or in the principal parts thereof here as well the Lessor as the Lessee shall be put to the charge for these things be not ordinary and annual charges but do reach from the beginning of the Lease to the top of the Inheritance as for petty reparations they are by intendment to continue but for a short time which are likely to be spent during the term and lease but these new defences are apparantly done to save the Inheritance And this difference holds good correspondency with other Cases in our Law as in 49 Ed. 3. fol. 1. and 3 Eliz. in Dyer fol. 198. and in 49 Ed. 3. 3 Eliz. Dier that Book again fol. 134. and in divers other Books it is holden for Law That if a house in Lease decay in the Groundsels Post or Balk in the great timber in direct wearing by tract of time and not in default of the Lessee the Lessee may take and cut up timber growing on the grounds leased to repair the same and the Lessee shall be at charges of workmanship for the repairs are in matter of right and do the Lessee good during his Lease and the Lessor after the expiration thereof And because these great repairs extend to both their goods therefore they shall both be contributory thereto But if a house be decayed in splinting thack walling or in such
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
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
Jury in whose default the same happened Thirdly the Commissioners are to enquire What person or persons ought or be bound by Custom Prescription Tenure Covenant or otherwise or for or by reason of what lands or grounds he or they be tyed or bound to do the repairs and where those grounds do lye and who be the owners thereof Fourthly also it must be inquired by Jury What grounds lye within the hurt or danger of waters either within the surrounder by the sea or the inundation of the fresh waters and to whom they do belong Fifthly and if a new Sluce Goat or other defence is to be erected built and made or a new Sewer Gutter or Trench to be cast this may be determined of by the view and survey of the Commissioners and so may the aptness of the places where they are to be set or cast and the length height bredth and depth of them for these things are proper for a view and survey But what persons hold Lands and Tenements within the Level which are fit to be chargeable thereunto and the quantity of their Lands are to be inquired of by Jury And these few causes I have put for example sake and if any other fall out within the like reason then they are to receive the same construction Sixthly in every case where an Amerciament is to be imposed it must be by presentment of good and lawful men upon their Oaths Et hoc per statutum de Magna Charta cap. 14. nulla miserecord ' ponatur nisi per Sacramentum proborum legalium hominum de viceneto c. Surveyors presentment BUt it hath been used that Surveyors of the Sewers have made presentments of defaults of things governed by these Laws but whether such a presentment be binding or not is a good point It is clear in my opinion that they can make no presentment but such as happeneth within their view and survey and what those things be they formerly appeared They cannot present that I. S. is bound by prescription custom covenant or otherwise to repair such a Wall Bank or Sewer for this is not within their Office In Kelloways Reports fol. 141. there is a custom alleaged that Kelloways Rep. fol. 141. two men within the provost might present the Articles of the Leet But I doubt of such Presentment though it have a custom to strengthen it I take this difference that an Original Presentment Surveyors cannot make as to present I. S. that by the Tenure of his Lands he ought to repair such a Bridge Wall Bank or other Defence But the Surveyors may make a supplemental Presentment as for example if it hath been presented before by a Jury that I. S. ought to have repaired such a Ditch and hath not done the same and day is given him by the Commissioners of Sewers to do the same if the same be not repaired at the day the Surveyor may present in this case the not repairing because this is but an Oath of assistance ad informandum conscientiam Judicis for the Amerciament shall be imposed by the force of the said former Presentment and this latter Presentment by the Surveyors is onely to give the Justices notice of the parties farther neglect to the end they may impose the greater Amerciament And a Presentment by Surveyors is not traversable being of so smal esteem in Law as our Law will not vouchsafe to take an issue upon it for their act herein is not in the ordinary legal form What Commissioners of Sewers may do by Discretion DIscretion is the herb of grace that I could wish every Commissioner of Sewers well stored withal for the makers of this Statute had an intention to make it of great use being literally nominated nine or ten times in this Law for this cause I have inserted in my Case but note that the word Wisdom is coupled with it and the word Good is annexed to them both as best shewing of what pure mettal they should be made of After your good wisdom and discretion There be three several degrees of discretion Discretio generalis Discretio legalis Discretio specialis Discretio generalis is required of every one in every thing that he is to do or attempt Legalis discretio is that which Sir Edward Cook meaneth and setteth forth in Rooks and Keighlies Cases Hoc est scire pro legem quod sit justum and this is meerly to administer Iustice according to the prescribed rules of the Law and herein is this discretion limited that it go not beyond or besides those Laws which are to be executed And this discretion is to be governed by the Laws for Cicero saith Sapientis est judicis cogitare tantum sibi esse permissum quantum Cicero sit Commissum aut creditum The third discretion is where the Laws have given no certain rule to be directed by in a case within the power of this Commission there the Commissioners are to order these affairs with such wisdom and judgement that although their censure be not framed in a Rule of Law yet they are to do therein secundum aequum bonum and herein discretion is the absolute Iudge of the Cause and gives the rule But in the case of Legal discretion there discretion is but a servant and is tyed to attend upon the Law and there the Law directs the censure and discretion is but to do the same wisely temporally for ipsae etenim leges cupiunt ut jure regantur Sir Ed. Cook in Book Case 5 Report gives this rule to the Cato Commissioners That although the words of the Commission be That they should do according to their discretions yet their proceedings ought to be limited and bounded within the Rules of Law and Reason for that discretion is a Science to discern betwixt falsity and truth between right and wrong between shadows and substance betwixt equity and colourable glosses and the Commissioners ought not to follow their wills and private affections for That talis discretio discretionem confundit And therefore now I will declare in few words in what things these Commissioners are to be ruled by good discretion First the quantity of Fines be left to the discretion of the Commissioners Item Imprisonment of the bodies of the offenders when they deserve and the time how long lieth much in their discretion Item it lieth in their grave wisdoms and discretions when and where to erect new Walls Banks and other Defences and what sums of Money to Raise and Levy therefore The election of Officers lieth in their discretion It lieth many times in their discretion whom to fine and whom to imprison I take it this word Discretion used in the Statute giveth power to the Commissioners to order businesses there arising in course of equity for hoc nihil aliud est but to proceed secundum aequum bonum I have put these few Cases as examples to direct and instruct what may be done by
heir from the said Ancestor which made the Covenant 28 29 H. 8. Dier fol. 33. Wherein I take this difference between a Covenant to binde an Heir and a Prescription for by Covenant the Heir shall be bound to the repairs if he have assets descended to him from that Ancestor but the Heir shall not be bound by prescription to repair though he have assets descended from his Ancestor who repaired the said defences But if Land be charged therewithal by Tenure or otherwise as a charge imposed upon Land by prescription then the said Lands are therewithal chargeable in cujuscunque manus devenerint quod nota It appears by the Statute of 43 El. cap. 4. That if Lands Rents Annuities Goods or Chattels be given towards 43 El. 4. the repairing of Bridges Ports Havens Calceys or Sea banks that the same shall be so imployed by that Statute So that Goods Chattels and Annuities be chargeable to these repairs by the force of that Statute as well as Lands Houses and Grounds in case any such thing shall happen to come before the Commissioners of Sewers But note besides all the former matter That an Heir shall not be bound by the Covenant of his Ancestor though he have assets descended unless he be bound expresly by the word Heirs in the Covenant Vsus rei I Now intend to declare where use shall tie one to the repairs of the defences mentioned in this Law I do not hereby mean that use which I have formerly mentioned in Prescription and Custom which is use to repair but the use I intend in this place is the use which one is to have of the defence or thing which is to be repaired As where one and his Ancestors have used to have the use of the River or waters by sailing up and down the same or have used to have a Ferry on or over them or a Staith to go up and down or a Crane to draw up waters or some other Engine to draw up the waters for the use of their houses These uses which men have of these things may be causes and considerations sufficient to tie them to the repairs of the Walls Banks and Rivers 37 lib. Assiz And for warrant in this learning is the Book of 37 lib. Assiz plac 10. for there were some persons which were bound to repair the River because they had passage on it with their boats and others were charged because they had free fishing in the River and in my opinion it stands with good reason and agreeable to Law That those persons before others should be bound and tied to the repairs of such things whereof they have peculiar and several profits and use of more then others have And it is manifest that this very Statute aims full at this point when it directed that such persons should be rated taxed and sessed towards the repairs which had profit of fishing and other commodities in the Rivers But least some may mistake my meaning and learning also in the said former Cases I will therefore make the same plain by distinction which is this That Frontage Ownership and this use I last spake of do not binde any to the repairing and maintaining of Walls Banks Bridges Sewers or other Defences when and where any other man or Corporation be bound to do the same by Prescription Custom Tenure or Covenant For the said three parts Frontage Ownership and Usus rei be but implicite ties onely in construction of Laws and serve the turn onely when no other person or persons are bound expresly thereunto and this distinction may be maintained by the Book of 8 H. 7. 8. H. 7. fol. 5. and other Books where it is said That he whose grounds is next adjoyning is bound to repair unless some other be bound to do the same by Tenure or Prescription Whereby it followeth that if one be bound to do the same by special Tenure or Prescription it freeth the Frontager Note also another difference that in cases where a Frontager and one who hath liberum passagium on the River and a man which hath a free Pischary there are not any one of them bound to make the repairs alone but all alike together and so is the Book of 37 Assiz plac 10. and I suppose the Book of 38 Assiz plac 15. maintains this point with me for there the Law is declared to be That he which 37 38 Assiz is bound by prescription to repair is bound peremptorily alone to do the work and not any other and if no such person can be found then the parties whose grounds do adjoyn and those which have free fishing in the River and free passage thereon be all of them to do and perform the same joyntly and no one of them is a discharge for the other because they shall be in consimili casu So by this which hath been said touching these matters the Commissioners may see and behold how carefully and understandingly the Laws of this Realm have indeavored to do equal Justice and my desire is that they would as carefully put them in execution A Township Assessed IT hath been held for a great question Whether a Township or Hundred in general might be assessed and taxed to the Sewers without imposing the same on particular persons And Sir Edward Cook in the Case of the Isle of Ely is of opinion directly That a Tax Rate or a Sesse Case of the Isle of Ely could not nay might not be set or imposed upon a Town or upon the Inhabitants of a Town for saith he The taxation sessment or charge ought to have these qualities It ought to be according to the quantity of their lands by number of Acres and Pearches or by the tenor of profit of fishing and Common of pasture which if it should be laid upon a Town it would hold none of those proportions and his opinion is not alone in this very point for in the ancient Charter of Rumney Marsh Rumney Marsh Case pag. 50. it is said Quod unusquisque proportione ac periculo incumbentium aequae contribuat And page 12 and 39 of the same Charter the Taxations is expressed to be Acres Perches and Carucates and our Statute in express wordsis And all those persons and every of them to tax and assess charge distrain and punish as well within the Limits Leets and Bounds of old time accustomed or otherwise or elswhere within this Realm of England after the quantities of their Lands Tenements and Rents and by the number of Acres and Perches and after the rate of every persons portion tenure or profit or after the quantity of their Common of pasture or fishing by such ways and means as you the Lord Fitz williams Sir Francis Vane and Sir Thomas Mounson Knight and Baronet Sir Edward Dimock Sir William Armin Sir Thomas Grantham Sir George Ftiz williams Knights Richard Totheby and Edward King Esquires whereof three to be of the Quorum shall
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
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
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
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
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