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
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
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