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
according to my said conclusion of my Case here the King hath a part the Prince a part and the Subject a part of the grounds left by the Sea My Tenets therefore be these First that the Subject may have the grounds of the Sea to the low-water mark and that no Custome can extend the ownership of a Subject further That a Subject cannot have the grounds to the low-water mark but by custom and prescription and I take it that it is very disputable whether grounds before they be relinquished by the Sea may be gained by Charter and grant from the Crown I suppose they may That the words incrementum decrementum maris are fully described by the said Record of 43 E. 3. of the Abbot of Ramsey that is That if the decrease of the Sea be by little and unperceiveable means and grown only in long tract of time whereby some addition is made to the Frontagers grounds these by these words may appertain to the subject and herein the said words have no other operation but Lands left to the shore by great quantities and by a sudden occasion and perceiveable means accrew wholly to the King That the increase to the said County Palatine for the causes aforesaid doth appertain to the Prince as Earl of Chester The Shore BUt now I am arrived at the continent and the first ground I set my foot on is the shore which in Latine is called Littus Maris it taketh the name wholly from the sea as partaking most with her nature and so Ex digniori parte appellatur yet it is not all one with the Sea nor with the Land but participates with them both And Mr. Bracton in his second Book Chap. 12. saith That Littora Maris Bracton accessoria what the shore is appears by Justinian the Emperor in his Institutes lib. 2. pag. 141. and is there thus defined Justinian Littus Maris est quousque maximus Hibernicus jus fluctus eluderet quousque fluctus Maris in estate longius exestuat and with this agreeth Cicero Topicorum The shore is not counted for lands or grounds gained from the Sea or left by it because at Cicero every full Sea it is covered with the waters thereof In the 13. Chapter of St. Matthews Gospel ver 2 3. it is said That Mat. 13. 2 3. our Savior Jesus went into a ship and sate there and the whole multitude stood on the shore and he spake unto them Hereby it appears that the shore was the dry land because they stood thereon and it was a great quantity of ground for thereon stood a multitude and it was near the brink of the water because they heard Jesus speak unto them out of the ship In point of property and ownership it is the Kings as Lord of the seas but as Sir Henry Constables Case is a subject may have the same as belonging to his Mannor by prescription In the Imperial Law which the Civilians use the sea shore is held to be common to all and that it is as lawful for Diogenes the poor Cinick as Cressus the rich King Casam 161. Ponere retia siccare but our Common Law of England doth in reason much surpasse either the Imperial Law or the Civil Law in distinguishing upon these for it is said Rex in ca habit proprietatem sed populus habet usum ibidem necessarium so that as to the lading and unlading of ships and for drying of Nets there and for other necessary businesses the subjects have these uses therein but the soil and grounds thereof belong properly dom ' Regi And a subject may have the same by prescription and therefore such as hold the shore to be the extreme point both of land and water be in a great error for as Iustinian saith in his Institutes Quod gemmae lapilli praeciosi inveniuntur which can be taken no otherwise sed super terram aqua relictam so that this shall suffice to have said concerning the sea shore Sea Coasts THe coasts of the sea come next in order to be treated of Costera maris be words well known but their confined definition is hard to be found out yet certainly they contain the shore and banks for by the Statute of 27. Eliz. Chap. 24. an Act was made for the mending of the banks and 27 Eliz. 24. sea works on the sea coasts but in the 7. Chap. of Maccabees coasts have a larger extent for there Demetrius Son of Seleucus departed from Rome and came to a city of the sea Maccabees 7. coasts here a whole city is set on the sea coasts and in Iustine treating of Alexander the great it is reported of him that he entred into Licia and Pamphilia and won and conquered all Justine the sea coasts this could be taken for no less then whole countreys for Alexanders great minde and huge Army could not march on a molehil or small tract of ground In St. Mark Chap. 7. it is thus written That Jesus departing from the Coasts of Tyre and Sydon came to Galile so that it may thereby be gathered That these coasts were neer the sea for our Savior was no sooner out of the coasts but he was on the sea which shews that sea and coasts be contiguè Iacentia yet no certain definition can I finde of the words Coasts of the Sea but by these and such like descriptions yet this I gather and collect thereby that in respect of the whole World a whole Kingdom lying next may be said to be a sea coast and a whole county in respect of a Kingdom and in my opinion the next town and territories thereof lying next to the seas be in our Law taken to be the sea coasts and no other and therefore some do much erre which take coast to be the edge of Land next the water and shore to be the brinks of the water next the Land quasi duo opposita And because Creeks Havens and Ports be all of them within the charge of this Law and this Statute was materially made in defence thereof and as they differ in appellation so they vary in definition yet they do in some things agree in the material I will therefore deliver my opinion of them Creeks CReeks of the sea is an Inlet of sea cornered into the main Land shooting with a narrow passage into some Angle of the Land and therein stretching it self more then ordinary into the Land and so holdeth not even quarter with the Levant sea and such Creeks or Inlets we commonly term in the Law to be arms of the sea for like as the arm of a man shooteth out from the body so by a metaphor the inlet or corner of the sea let into the Land is called an arm of the sea and although it go far into the land yet the points of land on both sides may well be discovered and this appears in that great arm of the sea on Humber where it
examine this part of the Statute which produceth these matters I have framed a Case which doth give occasion in this days exercise to dispute of all them The Case for the second Lecture A. Leaseth his Mannor in the county of Lincoln in which Second Case be Copyholds to B. a yonger Son for his life upon condition to have it for the life of C. upon condition to have it to him and the heirs of the body of his Father A Copyhold is forfeit the first Condition is performed the Commissioners of Sewers in that county upon view survey and by their discretion decree a new bank where none was before to resist the Sea and a new River to be cut to drain the superfluous waters in S. and an old Sewer in D. to be repaired and by inquisition assesses B. the Lessee for the Mannor the Copyholder for the Copyhold Land and the Town of S. and also the Parson there for his Tythes because they lie all in the Level the second condition is performed B. enters in the Copyhold My conclusion is That this new Bank new River and old Sewer be well decreed but the said sesse is void in toto in qualibet parte Points at the Common Law The Points of this Case are three at the Common Law and three upon this Statute but all of them are so woven within another that every one of them go hand in hand from the beginning to the end of the Case Imprimis Whether the Duplicate Condition be good or not Secondly What Estate B. the yonger Son hath by the first Condition and what Estate he hath got by the second Thirdly A Copyhold becomes forfeit to the Lord and before the Lord take advantage of it his Estate is changed Whether by the change of his Estate the benefit of the forfeiture be lost or not Points upon the Statute Imprimis Whether Commissioners have power to decree a new bank a new drain and other new defences or not And herein the qualities and properties of Rivers Streams and Banks and their dependants are to be treated of Secondly Whether they may decree the said new defences by view and survey And herein is to be handled What Commissioners of Sewers may do by survey and what they may do by their discretion and what they may do by Jury Thirdly in what cases Assesses and Taxes may be laid and imposed and on what things and in what maner they are to be imposed and whether the Rates set upon the persons in any case be well done or not and where the fault is if any be Argumentum Lectoris Seeing it hath been the ancient order for the Reader of this place to maintain the Conclusions of his Case I shall therefore endeavor my self to perform that order which Custom hath imposed upon me and accordingly as I have concluded so I take the Law to be And touching the first Point it hath been challenged and drawn in question upon some Opinion delivered in the Rector of Cheddingtons Case in Sir Edward Cooks first Report where it said That one contingent cannot depend upon another Sir Ed. Cooks 1 Report But more strictly it is called to an accompt in the Lord Staffords Case in Sir Edward Cooks eighth Report for there it is Cook Rep. 8. held That one possibility cannot depend upon another possibility and this Case is there put That if A. let Lands to B. for years upon condition to have it for life and upon condition to have Fee that the Fee simple can never increase by the second condition but as he saith in another Case Amicus Plato Amicus Socrates sed magis amica veritas his rule taken in the first Case is very general and the Lord Staffords Case admits distinctions which in my Argument I shall apply my self unto And some differences I shall take in this Point in question therefore I shall thus distinguish That if upon performance of the first Condition the Original Estate be determined upon which both the first and second Condition were built and grounded the second Condition and increase thereupon is utterly void but if the first Estate be not destroyed nor confounded upon the first Condition performed the second Condition and Estate thereof which shall be gotten thereby may then well grow upon the old stock To explain this by Example If A. give Land to B. in Fee simple upon condition to have the Land in Tail upon condition to have for Life here because the first Estate and Livery by the first Condition is not destroyed therefore the second Condition should well stand in force So I do make a Lease to A. for twenty years upon condition to have the Land for forty years upon condition to have Fee this first Condition and second Condition may have both their full operations for by the performance of the first Condition the lease of twenty years is not destroyed but stands on foot and therefore the original Estate remaining unconfounded the Fee simple may well increase by the performance of the second Condition But if a Lease be made to A. for his life upon condition to have in Tail upon condition to have Fee the second Condition here is utterly void because by the performance of the first Condition A. had an Estate in Tail which drowned and destroyed his Estate for life and so because every decreasing and increasing Estate is to depend upon the first Estate which receives the Livery which is the life of all therefore the second Estate can never accrew in this case and this is true reason as I take it of the said Case put in the Lord Staffords Case for there the Case for years was destroyed by the Lease for life which came by the first Lord Staffords Case Condition and so the Fee simple there could never accrew by the second Condition And in answer to the said general ground taken in the Rector of Cheddingtons Case That one Rector de Cheddingtons Case contingent or possibility cannot depend upon another under favor I take it not that I am bound thereby neither was it the meaning of Sir Edward Cook as I take it to extend the same so largely as they are there put because I finde many Authorities of great account which are against the said general position And first in the 38 H. 8. Br. Feoffments pl. 71. a Feoffment 38 H. S. was made to the use of A. and his heirs until I. S. paid him Ten pounds and then to I. S. and his heirs and so to the third person and what is this but one condition contingent and possibility to depend upon another for these contingents there were held good and were built upon a sure foundation And so in Digs Case in Sir Edward Cooks Reports where a Feoffment is made to the use of A. and his heirs with Digs Case power of Revocation and after of new Limitation of Estates these be also contingents and possibilities
brought against some of their Officers and Ministers for executing their Decrees and Warrants Their Lordships finding in their wisdoms that it can neither stand with Law nor with common Sense or Reason that in a cause of so great consequent the Law can be so void of Providence as to restrain the Commissioners of Sewers from making new works to restrain the fury of the Waters aswel as to repair the old where necessity doth require it for the safety of the country or to cause a charge upon the Towns or Hundreds in general that are interessed in the benefit or loss without attending particular Survey or Admeasurement of Acres when the service is to have speedy and sudden execution or that a Commission of so high a nature and of so great use to the Commonwealth and evident necessity and of so ancient jurisdiction both before the Statute and since should want means of coertion for obedience to their Orders Warrants and Decrees when as the performance of them the preservation of many Thousands of His MAJESTIES Subjects Lives Goods and Lands doth depend It plainly appearing That it will be a direct frustrating and overthrow of the authority of the said Commission of Sewers if the Commissioners their Officers and Ministers should be subject to every Suit at the pleasure of the Delinquent in His Majesties Court of the Common Law and so to weary and discourage all men from doing their duties in that behalf For the Reason aforesaid and for the supreme Reason above all reasons which is the salvation of the Kings Land and People Their Lordships did Order That the persons formerly Committed by this Board for their contempt concerning this cause shall stand Committed until they release or sufficiently discharge such Actions Suits and Demands as they have brought at the Common Law against the Commissioners of Sewers or any the Ministers or Officers of the said Commission saving unto them nevertheless any Complaint or Suit for any Oppression or Grievance before the Court of Sewers or this Table if they receive not Justice at the Commissioners hands And their Lordships further Order That Letters from the Table shall be written to the Commissioners of Decrees of like nature when it should be found needful requiring incouraging and warranting them to proceed in the execution of their several Commissions according unto former practise and usuage Any late disturbance opposition or conceit of Law whereupon the said disturbance hath been grounded notwithstanding with admonition nevertheless That care be taken that there be no just cause of complaint given by any abuse of the said Commission Examinat ' per Edmunds Cleric ' Consilii Present at this Order making were 1. The Kings Majesty in Person 2. The Archbishop of Canterbury 3. L. Chancelor Elsmeare 4. L. Treasure Earl of Suffolk 5. L. Steward D. de Lenox 6. L. Admiral Howard Earl of Notingham 7. L. Chamberlain Earl of Pembroke 8. E. of Arundel Howard 9. Viscount Wallingford 10. Viscount Fenton 11. Andrews Bishop of Ely 12. Lord Wotton 13. Lord Cary. 14. Secretary Winwood 15. Secretary Lake 16. Sir Foulk Grevil Chancelor of the Exchequer 17. Master of the Rolls Cesar 18. Sir Francis Bacon Attorney-General All of them of the Privy-Councel This Order is in some points legal and may stand for a direction in matters of Law and the other parts thereof may stand for a president of State and it thereby plainly appeareth that the Kings learned Counsel were of Opinion That the said new works might be Ordered and Decreed to be done by the Commissioners of Sewers and that the same had warrant from former presidents But the last allegation on the contrary party is very forcible against this argument That by the making and erecting of these new Defences the inheritance of private persons are thereby prejudiced whereon they be built yet as Cato saith Vix ulla Lex fieri potest quae omnibus utilis sit sed si majori Cato parti proficiat sufficit and therefore this Objection I thus Answer That these new works are not to be undertaken but upon urgent necessity in defence of the countrey or for the safety thereof so that the Commonwealth be therein deeply interessed and ingaged and things which concern the Commonweal are of greater accompt in the Law then the interest of private persons And so it is 13 H. 8. fol. 16. That the Commonwealth 13. H. 8. shall be preferred before the private Estate and for the good of the Commonwealth a private person shall receive damage if otherwise it cannot be eschewed as a private mans house shall be pulled down if the next house thereto be on fire to save the Town and the Suburbs of a City may be pulled down in time of War to save the City and Bulwarks may be raised on private mens grounds for defence of the Realm And what greater enemy can there be then the Sea who threatens with his merciless waves to swallow up all before it but that the hand of the Almighty hath tied Pro ch 8. ver 27. and bound him in the fetters of his eternal decree and given policy and means to man to keep him from invading the Land by artificial works proper for such services Therefore in my Opinion by the very true intent and meaning of the said Statute and by a just equal and reasonable construction it should lie in the power of the Commissioners of Sewers upon just and urgent occasions and considerations to make Orders and Decrees for erecting and making of new Banks new Walls Goats Streams Sluces and other necessary Defences against the overflowing of the Sea For Ubi nova fit maris incursio ibi novum est apponendum remedium with this caution That under the pretence of the Commonweal a private mans welfare be not intended to the charge trouble and burthen of the countrey And with this also That where any mans particular interest and inheritance is prejudiced for the Commonwealths cause by any such new erected works That that part of the countrey be ordered to recompence the same which have good thereby according as is wisely and discreetly Ordered by two several Statutes the one made in Anno 27 Eliz. cap. 22. 27 El. c. 22. Rastal Havens and Rivers is where the Commissioners have power to compound and agree with the Lords and owners of the grounds through which the new cuts are to be made And the other 3 Jac. Reg. cap. for bringing the new stream 3 Jac. to London and although these Statutes hold not in the general Cases of Sewers but are applied to the said particular matters therein expressed yet they may serve as good Rules to direct our Commissioners to imitate upon like occasion happening The second Point upon this Statute It appeareth by my Case That the Commissioners of Sewers did decree a new Bank to be raised and a new River to be cast and an old Sewer to be repaired upon their view survey
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
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