in one of his Epistles hath there declared it to be then it may give satisfaction in this kinde that these Laws of Sewers were in these times of great iminency and authority For there I finde two several Writs or Commissions of that nature The one authorizing certain persons to survey the defences in the parts of Holland in the County of Lincoln The other for the viewing and surveying of the Register in Oyer and Terminer surrounded grounds lying between the two Rivers Humber and Auckholin in the said County of Lincoln And the first of the said Commissions is set down verbatim in Fitz. nat bre fo 113. Yet the first Statute which appears to us Fitz. Nat. bre fol. 113. in Print wherein the frame of a Commission of Sewers is set down is the Statute of 6. Henry 6. Chapt. 5. Yet I make no question but the said Commissions expressed in the Rigister 6. H. 6. cap. 5. and Fitz. na bre were in their forms long before Henry the 6. time and that the Statute of Hen. 6. addes some more power and strength thereto then was before having backt them with the power of the Parliament and it is something additional in matter as it was in power as by both the Commissions compared together is apparent I do likewise finde in the 38. Edw. 3. Lib. Ass plac 15. That 38. Ed. 3. lib. Ass pl. 15. a Commission was awarded to inquire of Bridges and of the repairs thereof which is a branch of these Laws And Sir Edward Cook in his 10. Report in the Case of the Isle of Ely saith That the Kings of this Realm before the making of any Statute of Sewers might grant Commissions for the surveying and repairing of Walls Banks and Rivers and other defences And of the same opinion is the books of Sir John Davies in his Irish Reports in the Case of the Royal Pischary of the Banne And Sir Edward Cook hath in Sir John Davies Reports his first Case set the first Statute of Sewers to be in time the 9. H. 3. which is in Magna Charta the first volumn of of Statutes and the most ancient that be extant in our 9. H. 3. Laws By all which is manifest that these Laws have been received into the government of this Realm in time as ancient as any other were And I am the rather herein confirmed for that in the ancient Commission expressed in the Register aforesaid there be these words That the King Ratione dignitatis suae regiae ad providendum salvationi regni sui circumquaque fuit astrictus Wherein it is hereby made plain That the King by the Tenure and Prerogative of His Crown was bound to see and foresee the safety of this Realm and so this Law is a Prerogative Law and seems to be as ancient as any Laws of this Realm and all Prerogatives be without limitations of time Neither can it be presumed that all or any Kings till the time of Hen. 6. were so improvident as to want these Laws without the which the Realm could not be defended from the violence of that unmerciful enemy the Sea wherein I do conclude That these Laws of Sewers be as ancient as any other Laws of this Kingdom be The extent of this Law For the extent of this Law the Title of this Statute shews it viz A general Act for granting Commissions of Sewers within the Realm without any word of Restraint other then these where need should require And although Expounders of the Laws be not tied to make the Title their Text either for the body or the bounds of it yet it may serve to give some direction in the Exposition thereof But to make the Title to be the ground in the material Exposition of the Law may lead the Expositor many times into error For in Stradling and Morgans Case in Plo. Com. the Stradling and Morgan Title of the Statute was For the true answering for the Revenues of the King and the words in the body did extend the same to the Receivers of Subjects but there the Judges and Expounders of that Law went with the Title in a Statute made in 23. Eliz. the Title of the Statute was For Politique 23. Eliz. Constitutions for the Navy and in that Statute there was a new Fish day provided which no man would have looked for under such a Title And Lucian an ancient Greek Poet compiled a Book and in the Frontispiece thereof Intituled the same A Book of True Reports where looking into it there was not any thing true therein So it appears though in Acts and Books the Titles and Stiles may give help in the Exposition and may serve as an Index or Table to finde out the matter yet it is not fit to relye upon them but that they may be used or refused as occasion shall serve Howsoever there is better concord betwixt the Title and the Body of my Statute for the corps of the Act perform as much as the Title promised whereby the Inland Countreys of Notingham Northampton Huntington Bedford and the like may have the use of this Statute as well as the Maritine Countreys of Lincoln York Cambridge Norfolk Suffolk Kent Sussex Hampshire Devon Cornwal Glocester Chester and Lancashire if not in all yet in part as hereafter I shall make it appear in my second Lecture upon this Law And although both the Statute of 6. Hen. 8. and the Register and Fitz. Nat. Brev. make all of them mention in those Commissions of the County of Lincoln and of no other County yet doubtless the Lawmakers and Judges of this Realm and the Expositors did intend then and did extend them to all the Parts and Counties of the Realm And yet I take it that the first Original and the chief use of these Laws was in the said Maritine Countreys which stood in most need thereof and especially Lincolnshire where be the huge great and vast Fens and Marishes But yet notwithstanding they may serve generally for all the Realm of England as the extent of this Statute I read on hath bounded them So herein my conclusion is That the extent of this Statute is as large as the Realm of England The necessary use of it From the Title I am now come to the Preamble of this Statute where the words be very solid and weighty that is That the King nothing earthly so highly weighing as the advancing the common Profit Wealth and Commodity of this Realm By the which it may appear That the making of this Law was of all other thought to be most necessary and of greatest consequence when the King preferred the same before any earthly thing And the Kings care herein became his Royal Person very worthily because by this Statute Safety was brought to the Realm and Wealth and Profit to the People thereof greater and better fruits then which no humane Law can produce And the chief execution of this Law was most aptly
left to the King Ratione regiae dignitatis suae whose Office doth as the Philosopher truly saith contain in it great Vertue high Understanding and Divine Wisedom to whose high Government as well our Persons as our Laws be committed and the defence thereof is applied to his grave foresight And truly I have taken upon me to reade on those Laws of Sewers as Mr. Marrow did in former times take upon him to Expound in his reading the Laws of the Justices of Peace hoping this work of mine may prove as acceptable to the Commissioners of Sewers as that of his was beneficial to the Justices of Peace the use whereof being no less commodious to the Commonwealth then that of the Peace being both general Laws of great use and esteem and my self being for many years past a Commissioner in the County of Lincoln I found that these Laws were dark and intricate and came not usually within the reach and understanding of such as were not well seen and studied in the Laws And because I found the use of them to be wondrous necessary I did intend when occasion served me to break the Ice and enter seriously into the Exposition of them And therefore seeing these Laws being in time most ancient in extent most large and for the use most necessary I have with your kinde favor made choise of them to frame my Reading upon wherein if upon your perusal you finde any scapes or errors which may soon fall from Opinion haec amice corrige and such of them as you shall bestow your liking upon hiis utere mecum and this shall suffice touching my choise made of this Statute And as I have formerly declared and delivered the causes which stirred me up and the reasons which confirmed me to read upon this Statute Now I do intend to break it up and I do divide it into these several branches or parts First to make provision to resist the over flowing of the Sea upon the large Marsh grounds lying in the Maritine Countreys which commonly be the surest for soundness the greatest for compass and the best for profit of all the Sheep-walks and Commons of this Realm which take prejudice and loss only by the rage of the Sea Secondly to provide also that the great fresh Rivers and Streams may have their passages made clear and that their Walls Banks and other Defences be repaired kept and maintained whereby the fair delightful pleasant and fruitful Meadows and Pasture grounds which lie in the greatest abundance upon or near the Rivers Brooks and Streams may be preserved from the inundation of fresh Waters which many times annoy them to the great and inestimable damage of His Majesties Subjects which be Owners and Farmers thereof Thirdly whereas Navigation both for the Exporting of our Homebred Commodities and for the Importing of Foraign Merchandizes is the chief inriching of this Nation therefore Ports Havens Rivers and other Navigable Streams and their dependencies be put within the defence of this Law being Ostia janua Regni for that by the maintenance of these the wealth of the Realm is increased and the Inland Cities Boroughs and Towns are made partakers with ease and small cost of the Seas Commodities Fourthly likewise this Law giveth redress and remedy for the removing of such lets and impediments as are either hinderances to Navigation or stops whereby the abundant Waters cannot have their free passage to the Sea And fifthly because in the surrounded grounds there be most commonly the greatest use of Bridges Calceys Passages and Ways therefore this Statute hath taken order for them also whereby his Majesties people may in those places for their persons and their goods have both Salvum securum conductum In these five parts be all the whole materials of this great and worthy Law contained and therefore according to the said division I have framed a Case for the first Lecture upon this Law The first Case A. Leaseth to B. a Mannor on the Sea Coasts for years which hath incrementum decrementum maris by prescription in the County of Chester and the City there where a Commission of Sewers is remainder to C. in Fee Livery is given and taken by Attorneys at full Sea within the view the Sea then leaves One hundred Acres of Land with the Shore divided in part from the continent by a Navigable Haven The Lease expired C. enters the Prince ejects him and the King seizeth this Relinquished ground My Opinion is That the King hath a part the Prince a part and the Subject a part of this ground and that it is all within this Statute but no part thereof within this Commission Points of the Common Law The Points of this Case be three at the Common Law and five by this Statute First Whether Livery of Lands may be made within the view in another County or not Secondly Whether Livery by the view may be given or taken by Attorneys or not Thirdly Whether in this case Livery and Seisin may be made by Attorneys or that of necessity it must be made to the Lessee for years and who must joyn in making of the Letter of Attorney to take the Livery All which Points I must maintain Affirmatively else C. the Subject cannot have any Lands at all Points on this Statute First Whether the English Seas be within this Realm of England and what Interest the King hath there and what Interest a Subject may have therein by custom and prescription and what is meant by the said words Incrementum Decrementum maris Secondly Whose these new Islands be which arise there and wherher they be said to be within the Realm and what Laws govern the same for that it appears in my Case that the ground left between the Sea and the Haven is an Island Thirdly Whether the King shall have all the grounds by His Prerogative or the Subject by the said Prescription or the Prince as participating of both or whether every one shall have a part thereof according to my Conclusion Fourthly Whether the grounds left by the Sea be within this Statute and Commission both or either of them or neither of them Fifthly What a Haven a Shore and the Coasts be in definition and the several properties thereof The Readers Argument And as it comes to my turn I intend to maintain the conclusion of my Case And first of the first Point Livery and Seisin is one of the most ancient approved Ceremonies of the Law which hath been used for conveying of Lands and the Law hath a more respect thereto then to any other And it cannot be denied but that it is the most perfect form of any by the which the Freehold and Inheritance of Lands is transferred from one to another and all Subjects may give and take Lands by this Ceremony but the King only is excepted whose Prerogative is such That as Lands cannot be taken from him as King but by Record so Lands cannot be given
cannot be imparted to another It is true that the personal view cannot be lent to another or divided from the person no more can the personal touch or act of my hand be imparted to another and yet express Livery which is the deed and act of the hand may be done per auter maine Sir Francis Englefields Case in the seventh Report of Sir 7. Reports Englefields Case Edward Cook gives us a pretty difference where the act to be done is unseparably tied to ones person and where not as in the Case of Thomas Duke of Norfolk where upon conveyance of divers Mannors to Philip Earl of Arundel his Son there was a Proviso That the Duke might revoke the same upon signifying of his minde under his own proper hand in writing c. This power of Revocation was not transferred to the Queen by the Attainder of the Duke because it was inseparably tied to his own proper hand But the principal Case there of Englefield where the Canc. in Combs Case Lands were setled upon his Kinsman with power That upon tender of a Ring by him he might revoke the uses and this was forfeit by his attainder and the Queen by a Letter of Attorney made to two did tender the Ring for this was not precisely or literally tied to Englefields person no more then payment of Money or such like And so in our Case though by the Law I take it that Livery within the view must be in the view of both the parties yet this may be done by Attorneys for as my own hand is not precisely tied by the Law to an express Livery no more is my own eye expresly tied to this view And we see in views in an Assize the under Sheriff or 36. H. 8. Dier the Sheriffs Bailiffs by his direction may make the view and yet the Writ is direct to the Sheriff to do the same Morse Penningtons Case and in those Cases an intellectual view will serve as if the Jurors know the Land but such an intellectual view will not serve in a Feoffment but there the view must be actual Yet I take this difference that if a Letter of Attorney be directed to A. B. to make Livery and Seisin he cannot do the same within the view for therein he doth not pursue his warrant but if the Letter of Attorney be special to give or take Livery within the view I am of Opinion then the Livery may in such a Case be given and taken by Attorneys within the view as well as in Combes Case in Sir Edwards Cooks 9. Report where it is affirmed that a surrender of a Copy-hold may be given and taken by Attorneys which is as personal as this is in the taking part because Fealty ought to be made Some things may in this Case be further aleaged in this third point which I now have in hand that is Who must make the Letter of Attorney on the Feoffees part whether the Lessee for years or he in the remainder or both of them For Lessee for years it is to be noted that his Estate hath not any perfection thereby and he seems himself but a Deputy and if so then a Deputy cannot make a Deputy but yet he is not meerly a Deputy for if there be two Lessees the Remainder in Fee to I. S. one of the Lessees may take the Livery and Seisin yet if a letter of Attorney be made to two joyntly one of them cannot take it and if in our Case the Lessee had dyed before entry the Livery might have been made to his Executors and powers and authorities cannot be apportioned and come to Executors in such maner Ergo It is more then a power of a Letter of Attorney for the reasons aforesaid and for these insuing For the Lessee for years cannot be prohibited from taking his Livery by the Lessor but a Letter of Attorney may be countermanded yet the Lessee alone cannot make this Letter of Attorney neither can he in the remainder make the same because he could not himself accept of the present Livery neither can he meddle with the present possession which a Livery and Scisin yields But I am of Opinion That Lessee for years and he in remainder must joyn in the Letter of Attorney for these Reasons First they were both one party to the Deed so ought they to be to the Letter of Attorney which is to give life thereunto Secondly they be but in Law one Tenant Thirdly they should joyn in Advoury And in many Cases the Lessee shall have ayd of him in remainder for the privity between their Estates and although the Lessee gets no Estate by the Livery yet he assists himself thereby with the ayd and strength of him in the remainder and the Livery goes through his Estate and so passeth into the remainder Therefore my conclusion is that they shall joyn in this Letter of Attorney and hereby I suppose I have conveyed a good Estate in the maner to I. S. in the remainder to maintain my position for him in the end of my Case and here I end my three Common Law points and now am come to the Statute The Readers Argument upon the Statute and Commission The Sea within the Realm of England FIrst touching our Mare Anglicum in whom the interest therein is and by what Law the Government thereof is is a fit question and worth the handling And in my Argument therein I hope to make it manifest by many proofs and precidents of great worth and esteem that the King hath therein these powers and properties videlicet 1. Imperium Regale 2. Potestatem legalem 3. Proprietatem tam soli quam aquae 4. Possessionem Proficuum tam Reale quam Personale And all these he hath by the Common Laws of England in the 6. R. 2. Fitz. Prot. 46. it is said That the Sea is within 6. R. 2. the Legiance of the King as of his Crown of England This proves that on the Seas the King hath Dominationem Imperium ut Rex Angliae and this by the Common Law of England The Charter of the Admiral of England hath these words Admirals Charter in it Quod habeat potestatem in causis maritimis ac omnia bona waviata Flotsan Ietsan Lagan ac omnia bona Mercimonia catalla in mare depordita seu extra mare projecta ac omnia singula casualia tam in vel super mare vel littora crecas vel coster as maris quam in vel super aquas dulces portus flumina rivos aut alios locos superinundatos quoscunque inter Fluxum refluxum maris ceu aquae ad plenitudinem à quibuscunque primis pontibus versus Mare per totum Regnum Angliae Imprimis this Charter is under the great Seal of England quod est Lex Angliae The King grants to the Admiral thereby power in Maritine Causes which proves the Kings legal power and jurisdiction on
the Seas He grants to him bona in mare deperdita super mare emergentia extra mare projecta which be Profits arising on the Sea And all these are said to be per totum Regnum Angliae Ergo the Seas be infra Regnum Angliae In the Eleventh Chapt. de Prerogativa Regis it is declared Quod Rex habebit wreccum Maris per totum Regnum Prerogativa Regis cap. 11. Balenas Sturgiones captos in Mari vel alibi infra Regnum Angliae and this was by the Common Laws before ever this Statute was made for as the King was and is rhe most Excellent Creature within his Realm so the most Excellent things which Land and Sea afford are appropriate unto him And this Statute also proves the Sea to be infra Regnum Angliae and that the profits therein and thereon arising belong to the King by the temporal Laws of England In the Case of Sir Henry Constable in the Fifth Report of Sir E. Cook it is said That Flotsan Jetsan and Lagan are goods Sir Henry Constables Case on or in the Sea and that they belong to the King and the King by his Charter granted them to the Admiral The Statute of the 18. Edward 3. Let the Sea be open to all Stat 18. E. 3. 28. H. 8. Strangers and the Statute of 28. H. 8. Chapt. 15. If any Treason Murther or other Felony be done on the sea coast the Offendors shall be tryed in such county as the King shall appoint by Commission to be directed to the Admiral and others to try the same per Sacramentum duodecem which is by Jury And the Statute 31. H. 6. Chapt. 4. there is a Restraint 31. H. 6. That no Subject do attache any Stranger in amity within this Realm on the Sea Here the Statute Laws are in force on the Seas as appears by the examples but these seem to tye the person only Sir John Davies And in the Irish Reports of Sir John Davies in the Case of the Royal Pischary of the Banne it is said That the Sea is the Kings proper Inheritance And Mr. Bracton lib. 2. Chap. 12. in his Title de acquirendo Bracton L. 2. Ch. 12. rexum dominio setteth forth a prescription in these words Quod I. S. antecessores sui fuerunt quiet ' de Theolonio aliis consuetudinibus dandis per totum Regnum Angliae tam per terram quam per mare and many times in that Chapter he reiterates the same words which is a strong proof that the Sea is infra Regnum Angliae and that the King Governs there by his Common Laws of England for that prescription is a main and material point of the Common Law And the like is alleaged in Sir Henry Constables Case by way of Custome in the Citizens as of Bristol to have Flotsan on the Seas between the high water and the low water marks So I take it I have proved the King full Lord and owner of the Seas and that the Seas be within the Realm of England and that I have also proved it by Ancient Books and Authorities of the Laws and by Charters Statutes Customes and Prescriptions that the Government therein is by the Common Laws of this Realm One Case and one Statute seem to sway to the contrary Lacies Case and that is Lacyes Case where one was stricken on the Seas and dyed on the Land that the Common Law could not try this murther It is true because that tryal was to be by Jury which must come out of a proper county which could not in this case because the Sea was not within county ground and so no Jury could be summoned there And I acknowledge that the King ruleth on the Sea by the Laws Imperial as by the Roll of Oleron and other but that Le Roll de Oleron is only in the particular Case of Shipping and for Merchants and Mariners But the King hath neither the properties of the Sea nor the real and personal profits there arising but by the Common Laws of England and in proof thereof the Book 15. and 16. Eliz. in Dyer where the grounds gained from the Sea pertained to the Queen which must 15. 16. Eliz. Dyer needs be by the Common Law of England for no Law gives the King any soil but only the Common Laws of England so this is sufficient proof for the real profits and for the personal profit the Charter of the Admiralty and other Cases aforesaid make it manifest And there is a Statute made in 1. R. 2. Chapt. which restrains 1 R. 2. Rast Admiralty the Admiral that he do not meddle with any thing done within the Realm but on the Seas by which it may be collected that the Seas be not within the Realm of England But in my opinion the intent of that Statute did rather limit the Admiral how far he should extend his Jurisdiction then any way to set forth the bounds of this Realm wherein my conclusion herein is That my Statute hath his extent within all the Realm of England and that English Seas being within the Realm be within the bounds of my said Statute of Sewers and that Statute Law is in full power on the Seas as by the Cases and Statutes mentioned formerly doth appear Of Islands BEcause in my Case in matter though not in express De Insulis words there is an Island therefore it comes now fitly in turn to declare whose the same is in ownership and what Laws the same is to be governed by And first of the definition thereof Justinian in Suis Institutionibus saith that Difinitio Insule Insula est locus undique circumdatus aquis pag. 153. And with this agreeth Britton in his Title of Purchase England of Anglia it self is not Insula because it is not undique circumdatus aquis But England and Scotland be one intire Island and the most Scotia famous in the whole world England take it per se est peninsula that is penè Insula almost an Island for on all parts it Peninsula joyns to the Sea but towards some parts of Scotland Gernsey and Jernsey be Islands on the Sea but it seems by the Resolutions in Calvins Case 7. Report That they be Gernsey Jernsey not within the Realm nor governed by these Laws because the King hath them by His Title of France The Isle of Man was in times past a petty Kingdom and had a King but he was onely as a Viceroy and under the Man King of England as by a Record Where Artold King of Man made suit to the King of England to come into England but whether Man be within the Realm or not seems to be put without question in Sir Edward Cooks Case of Calvin and by Kelwayes Reports 11. H. 8. that it is not for there an office found after the death of the Earl of Darby by a Writ out of the
Chancery 11. H. 8. Kelwayes R. of England was avoided because as the said books do affirm Man was not within the Realm of England but under the favor of these books that is no necessary cause to avoid that Office for in my Opinion the said Office of the Earl of Darby was void quia in Man breve Domini regis non Currebat and so in the county of Palatine of Chester breve Domini regis non Currit 161. tamen Committatus Cestriae est infra Regnum Angliae Mr. Cambden in his History de Insulis is Cambden of Opinion that Man was a Member of the Realm of England and therein he hath these words That Man is an Island scituate in the midway between England and Ireland Sed de qua utrique terrarum applicari de Jure debuerat ab antiquis non ambigebatur demum in hunc modum lis ista quievit quoniam advectos perculi Causa venemosos haec terra vermes admisit ergo Eam Britannis applicandum Censura Communis dictavit by which it may appear that the Isle of Man was within the Realm of England or at the least a member thereof But I do take the Isle of Wight Originally to be parcel of England and is a part of the County of Hampshire and was Wight as it were divorced from the continent as was Cecily from Italy the one as Poets feign was parted from the continent or main Land by an Earthquake the other as is imagined by the rage and violence of the Sea Insula vectis inquit Cambdenus in suis insultis Britannicis Fol. 707. est pars Commitatus Cambden 707. Hamtoniae à Continente Britanniae avulsa est ut Cohaesisse uvidebatur for many do imagine that it was torn from the main Land by the violence of waters as of late years parcel of the Spurnhead in Yorkshire which before did adhere to the continent was torn therefrom by the Sea and is now in the nature of Island Yet the same is within the Realm of England and remains parcel of Yorkshire and the like is said of the Island cald Silly scituate Many other ancient Islands there be which being in the English Seas be parcel of this Realm which I will pass over to avoid prolixity But in our Case a new Island is risen up in the English Seas to whom the same in point of property and ownership Nova Insula shall belong and what Laws the same shall be governed by comes now justly to be disputed of Justinian in his Institutes De rerum Divisione saith Quod insula in mari nata Justinian ut Delos est primi occupantis And Britton one of our ancient Britton 86. Writers in his book Titulo Purchase fol. 86. saith That if a new Island rise up in the Sea datur primo occupanti and agreeth fully with Justinian therein but saith he If it be taken or divorced from the continent then it continueth to the former owner but clearly our Law of England doth not agree with either of those Authors in the point of ownership For if as I have formerly delivered it the Sea in property possession and profit tam in aqua quam in solo belongs to the King in the right of His Crown of England as I take the Law clearly to be then it followeth as a consequent That the grounds which was the Kings when it was covered with waters is His also when the waters have left it For our Law admits not any thing either real or personal to go primo occupanti but when an owner cannot be found the Common Law gives it Domino Regi as Waifs Strays Wreck of the Sea Treasure found Escheated lands and such like so that my opinion is conceived in this that in point of ownership and property the said new Island is the Kings But yet I am likewise of opinion That a new Island risen from the bottom of the Sea although it be within the Realm yet it is neither within county Parish nor Town of this Realm till the King by his Edict or Proclamation have so declared it There may be Islands also within the Land compassed about with fresh Rivers as the Isle of Axholm in the county of Lincoln and Sheppey in the county of Kent and divers others But Mr. Bracton in his Book de acquirende rerum Bracton Liber 1. cap. 2. dominio doth very well deliver the Law concerning his new Islands which arise in great Rivers his words be these Habet etiam locum eadem species accessionis Insula nata in flumine quod si quidem medeam partem teneat Communis est eorum qui pro indiviso ab utraque parte fluminis prope ripam praedia possident pro modo latitudinis cujuscunque fundi que latitudo prope ripam sit que si alteri parti proximior sit eorum est tanta qui abea parte prope ripam praedia possident Si autem insula in Mari nata sit quod raro accidit occupantis fit Domini Regis non tamen credas proprium alicujus agrum informam insulae redact insulam esse ut ecce flumen dividatur in superiori parte circuit agrum alicujus demum infra in quo casu ejus erit ager cujus prius fuerat Cavendum quoque erit in metienda vicinitate insularum quia potest quis in hoc de facili decipi ponatur igitur punctus quod in medio inter utrumque agrum secundum hoc si insula Citra punctum sit vel hujus tant ' vel illius tant ' erit si autem sit citra punctum in ipso puncto ultra tunc proindiviso Communis erit ut tantam mihi de ipso insula cedat qua continentur in medietate puncti usque ad agrum meum Si autem insula rotunda inveniatur hoc observetur quod omnè quod propinquiùs est mihi cedat ita vicino cedat quod ei vicinius erit But whether the Laws of this Realm be of force in the said new sprung up Sea Islands or not is a question It appears in Calvins Case and in the Case of the Tanistry in the Irish Reports That if the King conquer an Island or Nation the same is no part of England nor the Laws of England there in force till the King shall so declare the same but the own proper Laws seem to be in force there but if the King conquer a Nation from an Infidel there the antient Laws of that Nation upon the conquest are extinct but the Law is not so of another Christian Region as Callis Callis Guyen Bulloign Ireland Guyen Bulloign and the like And although Ireland was under the obeysance of the King yet the Laws of England were not there in force till the King so declared the same And although Wales before the Reign of E. 1. was within the Fee of the King of England yet was it
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
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
Gen. cap. 1. of all other creatures being finished the Heavens adorned and the Earth replenished God said Let us make man in our own Image after our likeness and let him have Dominion over the fish of the Sea and over all the Earth and every creeping thing that creepeth upon the Earth So God Created man in his own Image in the Image of God Created he him Male and Female Created he them and said unto them Be fruitful and multiply and replenish the earth and subdue it and have Dominion over the fish of the Sea and over the foul of Heaven and over every living thing that moveth upon the earth This was the first Commission that ever was granted and it passed under the Divine immediate Seal of the Almighty extended over the whole world and by the vertue of the word Dominamini in the Plural number God coupled the woman in Commission with the man But in the 18 Chapter of Exodus Verse 21. Jethro adviseth and counselleth Exodus 18. Moses his Son in law to provide out of all the people men of truth hating covetousness and place such over them to be Rulers of Thousands Rulers of Hundreds and over Fifties Tens where by the word Men twice repeated by Jethro and this place of Scripture seemed to exclude wholly from Government and the former Commission extended over Fishes Birds and Beasts and neither over men nor women And in the first of the Corinthians Chapter 14. it is said by Saint Paul Let the women keep silence in the Churches for it is not permitted to them 1 Cor. 14. to speak And in Grendons Case in the Comment fol. 497. Dyer saith That women could not administer the Sacraments nor were they permitted to say Divine Service And in the second Chapter of Timothy Verse 12. he saith We suffer not the woman 2 Tim. to rule over the man but this last of Timothy may be most aptly applyed to husband and wife I remember out of the Abbey Book of Evesham this Note worthy of observation Quod Alicia Peeres Regis miniona supra modum mulierum nimis supergressa sui etiam sexus fragilitatis feminiae Immemor nunc Justiciarios Regis nunc in foro ecclesiastico juxta doctores sedendo pro defensione causarum suadere etiam contra jus postulare minime verebatur unde propter scandalum petierunt à rege in Parliament ' tent ' An. 50. Ed. 3. penitùs amoveri but hereby I collect that she was not in Commission with the Judges Temporal or Spiritual but was a favorite of the Kings and took upon her to intermeddle in businesses nothing concerning her But whether the Text meant it for a woman to sit Judge in a Court of Justice was contra modum mulierum or because she sate there to wrest righteous Judgement I refer to the readers of that History For Debora was Judge of Israel and Judged the people as the fourth of Judges hath it Dyer indeed saith in Grendons Case That divers Churches were appropriated to Prioresses and Nanneries whereof women were the Governesses whereby and by the said Chapter of the Corinthians it appears that women might be admitted to have Rule and Government over the possessions and persons Temporal and Ecclesiastical but were not admitted to have curam animarum nor to meddle with the administration of the Service or Sacraments And for Temporal Governments I have observed women to have from time to time been admitted to the highest places For in ancient Roman Histories I finde Endochia and Theodora admitted at several times into the sole Government of the Empire and here in England our late famous Queen Elizabeth whose Government was most renowned And Semiramis governed Syria and the Queen of the South which came to visit Solomon for any thing that appears to the contrary was a sole Queen And to fall a degree lower we have presidents that King Richard the first and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regents of this Realm in their absence in France And the wise and renowned Lady Margaret Countess of Richmond was put in Commission and Humfrey de Bohune Earl of Hereford was by Tenure Constable of England which is a Judge in Martial affairs and he died without issue Male by reason whereof the Office amongst other things descended to his two Daughters and Co-heirs And in the 12 of Elizabeth in Dier it is holden for Law That although this was an Office of Justice yet they might execute the same by deputy for in truth women were unfit Martialists to judge of matters of that nature and yet it is clear a deputy doth nothing in his own name but in the name of his Master or Mistriss therefore the Martial Court was to be kept in their names But yet I will descend a step lower doth not our Law Temporal and Spiritual admit of women to be Executrixes and Administratrixes and hereby they have the rule or ordering of great Estates and many times they are Gardianesses in Chivalry and have thereby also the government of many great Heirs in the Kingdom and of their Estates And in 10 H. 7. a man devised his Lands to be sold by a 10 H. 7 woman and died and she sold the same to her husband So by these Cases it appeareth that the Common Law of this Kingdom submitted and committed many things to their government yet the Statute of Justices of the Peace is like to Jethroes counsel to Moses for there they speak of men to be Justices and seemeth thereby to exclude women But our Statute of Sewers is Commission of Sewers shall be granted by the King to such person and persons as the said Lords should appoint So the words persons stands indifferently for either Sex And therefore although by the weakness of their Sex they are unfit to travel and they be for the most part uncapable of learning to direct in matters of Judicature for which causes they have been discreetly spared yet I am of opinion for the authorities reasons and causes aforesaid that this honorable Countess being put into Commission of the Sewers the same is warrantable by the Law and the Ordinances and Decrees of Sewers made by her and the other Commissioners of Sewers are not to be impeached for that cause of her Sex And I conclude here that although in discretion women have been secluded as unfit yet they are not in Law to be excluded as uncapable If an Infant above the age of Fourteen and under the age of One and twenty be made a Commissioner his infancy shall be no cause to disable the Laws made by him yong Daniel was Judge over both the Elders And in Little Brook fol. The case is a Parson or Prebend being within age made a Lease for years of his benefice and would but could not after avoid it for his Nonage for seeing the Church had made him of full age to discharge the spiritual
what maner Repealing of Laws What grounds to be observed in Repealing of Laws How far the power of Commissioners extends therein The Readers Conclusion of all his Labors Lectura prima MY most worthy Fellows and Companions of this noble and renowned Society the Hour-glass of my puisne time is run and I am now come to take possession of your Readers place wherein I must hazard to your censures the fortunes of my inability These Twenty and six years compleat I have had continuance here and in that time I have only taken the measure and length of your Hall And herein I acknowledge Grayes-Inn to be the Patron of my best fortunes and your selves the best Companions of my forepast and present life I made a question when it came to my turn to reade Whether I should turn therefrom or not being then troubled about Two things Charge and Care both which I put into a pair of Scales wherein I thought Charge weighed heavy and solid for ibi ponebantur solidi Care notwithstanding had his equal weight with the other and poised the Scales even Yet I considered the small Substance I had got came by my Profession I therefore took my self both in Credit and Conscience bound to undertake this burthensome place for the maintenance and preservation of the honor of this house and with that I put Charge and Care in one Scale and Resolution in the other which scaled them both up Twenty years likewise of my last past time I have in the practise of my Profession spent but I hope little consumed thereof In which time I lanched forth my Ship In profundum maris for a Voyage to the Sea and now she is returned to your Shores furnish'd and ballist with Merchandize of several estimates By my Ship I mean my Statute which I read on which be the Laws of Sewers the Merchandize be the weighty matters therein contained By the Governors and Rulers of this Ship I mean the grave and prudent Commissioners who are put in charge and trust with the execution of these Laws By the Mariners I intend the Officers of this Law the Merchants place I reserve unto my self The Wares brought home be of divers sorts some only fit for the Imperial Majesty of a King and these be Royal Prerogatives shewing forth their splendor like the Flower de Lice in the Crown others belong to high Nobility and some be useful for the homely Commonalty the rest which shall remain I have cast under Hatches for my last days Mart when I mean to make chaffer on them all But though I seem to make these Markets of my Legal Merchandize yet I do not mean to set such Rates upon them as Merchants use to do which be all for utile dulce for I only set one price upon all which is your kinde acceptance Marvel not I pray you at these my Sea-like salutations for this day I am become god Neptunes Orator and I mean to display the power of his Empire for my Statute my Cases and my Argument will all depend upon the Element of Water over which as Poets feign Neptune hath chief predominance Well now my Ship is at shore and I have cast Anchor there and to my great comfort I see many Chapmen attending the Market and therefore now presently I will unlock and set open the closet of my Store which be contained in the fair Volumns of the Law and especially in that Law made and Enacted in the Parliament held in the 23. year of Hen. the 8. Chapt. 5. which is A general Act concerning the Commissioners of Sewers for all the Realm of England The causes wherefore I made choice to read upon this Law be five in number Viz. First For the Antiquity of these Laws of Sewers though this Statute bear date but 23. Henry 8. Secondly For the Largity and extent thereof which appears in the stile of this Statute and there termed A general Act for all the Realm of England Thirdly For the necessary use thereof which continual practise and daily experience teacheth us Fourthly I have had a more desire to read upon these Laws because never any Reader did heretofore undertake the same and upon perusal of this Statute and upon due consideration taken of others I thought I could not make my choice of a more fitting and more necessary Law nor more profitable for my Native Countrey of Lincolnshire and other Maritine places of this Kingdom then this is And Fifthly His Majesties general care which these Laws require at His hands and his special care by the which His Highness of late hath taken these Laws into His gracious and provident protection And upon due consideration taken of all these Cases I resolved to proceed in the Exposition of this Statute being made perpetual by the Statute of 3. Edward 6. cap. 8. And to speak something of the three first causes I am of Antiquity of these Laws Opinion for the Reasons and Authorities ensuing That the Laws of Sewers have been and be of great Antiquity and have told over as much time and as many years as any other Laws of this Realm have done For as Mr. Cambden in his Cambden Britannia saith Quod insula Britannia avida in mare omni ex parte se projecit Therefore this Realm adjoyning on every side upon the Sea could not be safe without those provident Laws made and used for the defence thereof And although it is said in Scripture That Almighty God In Manasses Prayer King of Judah hath bound the Seas by the word of his Commandment and had shut up the Deep and sealed it with his terrible and glorious Name yet God who bestowed wisedom on man it was his pleasure he should providently use it over the rest of the Creatures not giving way that he should be remiss or presumptuous in any thing which by his foresight or judgement might be prevented helped and relieved It is true that at the Flood Cum cateracta Coeli fuerint Genesis cap. 7. operta when the windows of Heaven were by Gods determinate will set open and that the Seas did Suum excedere modum no power of mans hand could stay the swallowing and devouring surges of the Seas and Waters yet then notwithstanding had God appointed that his Servant Noah and his Children and such Creatures as he appointed should be preserved by the Ark which was a work of their own hands Therefore the Laws of God and Nature have appointed man to make provision for the necessary defence and safety of himself and of his Countrey And the Laws of this Realm most of which have received their primam essentiam from the Divine Laws of the Almighty and have fetched their Pedigree from the Law of Nature have a principio bene so predominant in this Kingdom of England that they have never been wanting at any time to provide for the safety thereof And if the Register be so ancient a Book as Sir Edward Cook
not parcel Wales thereof till the Statute of 12. E. 1. so made it and although that Statute so annexed Wales to England yet being but by the word or figure adjuncta the Laws of England were not totally in force there till the Statute 27. H. 8. so declared them as is holden in Rice Thomas Case in Plo. Com. but notwithstanding whether Wales be within my Statute or not is questionable for these Reasons following First it is clear that a general Law unstinted and unbounded shall extend to Wales as well as to England but our Law grants Commissions within the Realm of England and so precisely prescribes it to bounds and it may seem that the Parliament took it so in 1. Mar. Cap. 11. where Commissioners of Sewers were authorized in the county of Glamorgan which as may be objected need not if Wales had bin formerly comprised and some new Statutes as that of Alehouses in 1. Ja. Cap. 9. and that of Rogues 1. Ja. Cap. 7. extend the same to the Realm of England and Dominion of Wales as if Wales should not be contained in the words the Realm of England yet notwithstanding in my opinion this Statute of 23. H. 8. extends to Wales for although the Statute of the 1. Mar. gave power to Commissioners in Glamorganshire that was for a special purpose which as was conceived the Statute of 23. H. 8. did not in England extend thereunto that as for the carrying away of the sand which was thrown upon their grounds but in that Statute it may well be perceived that the Statute of 23. H. 8. was of force there and inserting the words Dominion of Wales in the said Statute of Poor and Rogues was rather of superabundance to satisfie some which might nodum in scirpo querere make a doubt where none was then that they were there put for any necessity requiring the same But I am of opinion that in this new sprung up Island the Laws of England are there in force because when it was Sea the same was under the Government of these Laws and although the nature and quality thereof be changed viz. Dry Land for full sea yet the same Laws and Government remain in force so that I hold this new Island within the Statute and that the property thereof is the Kings Now occasion and time gives me fit opportunity to treat of Grounds which be newly gained from the Seas If as I have formerly declared the Grounds be the Kings when they be covered with Waters it must needs be held an infallible ground that they be also the Kings when the Waters have left them dry and when the Waters had their being on the same the whole Profit there arising did appertain to the King yet I have known in some Countries where the Frontagers have claimed those grounds so left by a pretended Custome of Frontagers and some probable reason might be shown wherefore they should have the same for as their grounds was nearest the Sea and so next to the charge to repair the defence and next to the loss where any overflow happened it might therefore seem reasonable that as they were put to the greatest charge and in peril of the loss of their Lands that so if Lands were left by the Sea affront them that these Lands might accrew unto them as a reciprocal consideration for their charge and loss but I take it that of late the Law hath in these Cases been often-times ruled for the King against the Subject for at Crost in the county of Lincoln 1600. Acres were gained from the Sea affront the Mannor of sir Valentine Brown there yet he was put to obtain a grant from the King thereof and one Bushey of St. Kegneys claimed grounds left by the Sea by the said pretended Custome of Frontage but they were decreed against him in the Court of Wards in 12. Jac. R. in which Case I was of Counsel For it were inconvenient that the subject should have Frontage and yet no bounds prescribed thereto so that Ten thousand Acres might be left affront a mans Mannor which were not fit a subject should have this large Inheritance by pretence of such allowed Custome and I suppose I may herein say in this Case as Mr. Plowden doth of his silver Mines That it is inconvenient a subject should have the silver Mines in his grounds for so might he become richer then the King So it is not fitting that a subject should have the grounds left by the Sea when so much may happen to be left as the Kings own Lands in the Realm come to and so because nimium se exaltat in prerogativam Regis I am of opinion the new gained grounds from the Sea appertain to the King as a Royal Escheat and not to the subject but in my Case here is a prescription where the owner of the Mannor hath Incrementum decrementum Maris of what force this is of is now to be argued therefore I will now declare what interest a subject can or may challenge in the seas in grounds gained therefrom Personal profits arising on the sea subjects may have and challenge by custom and prescription as to have free Pischary on the sea and a Parson had Tythes of Fish gotten in the sea by the inhabitants of his parish yet the sea nor any part thereof is not in any Parish but it followed the person In Sir Henry Constables Case the Citizens of Bristol Sir Henry Constables Case claimed Flotsan which be goods floating in the sea by custom in Bracton Chap. 12. one aleaged to be discharged Bracton of Toll or Custom on the seas by prescription in the Case of the Swans in Sir Edward Cooks 7. Report one prescribed to have a game of wilde Swans at Abbotberry in a Creek of the sea which is a member or arm of Case of Swans the sea and in Sir Henry Constables aforesaid it is taken and received for Law that a Subjects Mannor may extend to the low water-mark by prescription and seeing all these a subject may have in and on the Sea wherefore then should he not have all the grounds left by the Sea by prescription To that I answer That he cannot have claim in any thing by prescription and custome but that which lyeth in use which is the life of them both but lands and grounds which have always been Sea could not be nor lye in use and therefore they cannot be claimed nor the same can be bounded out by prescription or custome yet lands between the high-water mark and low-water mark the bounds thereof may be prescribed to belong to or to be parcel of the Mannor because in every twelve hours or in every day they lie dry and so a Subject all that time may have use of them and so of all the rest of the said things but in that which never lay in use no custom or prescription could take hold on insomuch that in my Opinion no prescription
use thereof is common to all men and the power thereof the King hath by His Laws Proprietas Domino usus populo potestas Regi wherein for more clear Illustration of this matter I put this Case Proprietas Domo usus populo That I. S. doth cut the Sea bank or the bank of a great Potestas Regi River and I. B. which hath occasion to pass thereby falleth unawares into the cut and is hurt in body or goods the party which cutteth this Bank incureth these mulcts For first the owner of the soil may have his Action of Trespass quare solum fodit and he which fell therein may have his Action upon the Case against the digger of that cut for to 8 E 4 9. 27 H. 8. 27. 2 E. 4. 9. recover his damage for his special hurt and the offendor may also be indicted at the Kings suit for the general wrong done to the Kings people And the like Law is of high-way A Wall doth differ in point of ownershhip from a Bank first in respect of the materials the same is made on for a Bank is made Ex solo fundo qua ex suis propriis naturis sunt cadem cum terra super qua edificatur but so is not a Wall for it is an artificial edifice not of the materials arising of the place where it standeth but which be brought thither and built there ad propria onera costagia partis so that the ownership property of a Wall doth appertain to him who is bound to repair the same though his ground lye not next thereto but of a Bank the property and ownership is his whose grounds adjoyn thereto And this shall I hope suffice to have said of Banks and Walls the two first defences nominated in the Commission of Sewers The letter of this Statute and Commission seem to extend only to Banks Walls and other defences standing and being by the coasts of the sea and Marish grounds thereto adjoyning but whether the Banks and Walls of fresh Rivers which have their courses to the sea be within this statute or not hath heretofore bred some question but for my own part I am cleer of opinion that they be within the provision of these Laws for there be two mischiefs recited in the Statute the first is for not maintaining the Walls and Banks against the sea by reason whereof great hurt hath happened thereby by the overflowing thereof and the other by the inundation of fresh water-courses through Landfloods which have done some damage to the grounds next adjoyning and these Laws apply a remedy to both these grievances that is by repairing the Walls and Banks next the sea and by maintaining of the defences of the fresh Inland Rivers to cause them keep their waters within their Channels And I take it there be words in the Statute that will bear this construction viz. That by the rage of the sea flowing and reflowing and by means of the Trenches of fresh waters descending and having their courses to the sea by divers ways be so dirupt lacerate and broken c. And also in the preamble of the Statute the words there be that by reason of the outragious flowing surges course of the sea in upon Marsh grounds and other low places heretofore through politique wisdom won and made profitable for the great Common-wealth of this Realm as also by occasion of Lands waters and other outragious springs in and upon Meadows Pastures and low grounds adjoyning to Rivers Streams and Currents wherein the waters are to have their courses And what keeps the fresh waters within this Channel but good and serviceable Walls and Banks and what things doth this Law intend to be dirupt lacerate and broken but the Walls Banks and other defences which pent up their waters and these words extend more properly to the Walls and Banks of fresh Inland Rivers then to sea coasts And I do finde some ancient Authority in the point out of the Charter of Romney Marsh pag. where the words be Ad distriction ' Romney Marsh faciend ' ad reparand ' Wallia watergaugia ejusdem marisei contra maris impetum inundationem aliarum aquar ' dulcium which last words can have no other construction or interpretation but to extend the same to the Banks and and Walls of Navigable and other fresh Rivers and watergauges of fresh streams And the Statute of 1 H. 4. Cap. 12. makes the scruple cleer wherein the words be that the common 1 H. 4. cap. 12. passage of ships and boats in great Rivers of England were oftentimes disturbed by leaving of weres c. and provided a remedy therein so hereby it is manifest that fresh Navigable streams are within these Laws Private Walls and Banks BUt all Banks and Walls wherein waters be pent are not within the provision of these Laws but only such as belong to common and publique Rivers and ditches Sewers and streams for Walls and Banks made and erected as fences to mens private grounds and there set or made to ditches gutters and streams for the drayning and watering of mens private grounds are not within these Laws for these Laws take cognisance and notice of none but of such as tend to the good service of the Common-wealth and therefore whereas in the Ports of Holland in the county of Lincoln and in other parts of this Realm divers private persons have for inning and safety of their Marshes and Marsh grounds cast great banks for those private uses these banks are not within the protection and defence of these Laws to be maintained but I am of opinion That they may be extirped if they be letting and a hinderance to the common good of the countrey where they be erected Forasmuch as I am now in hand with Walls and Banks the defences to Rivers Sewers Ditches and Gutters I therefore take it that it will hold good correspondency here in this place to treat of them and of their dependencies A River therefore is a running Stream pent in on either side with Walls and Banks and beareth that name as well where the waters flow and reflow as where the waters have their current one way as is expressed in the Case of the Pischary of the Banne in Ireland In the Statute of 4 H. 7. Cap. 15. 4 H. 7. 23 H. 8 â—â— l. Ass pl. 11 Thames is termed a River In 34 Lib. Ass pl. 11. and in Plow Com. fol. 129. Tyne and Tese be both named Rivers and in 19 H. 7. Cap. 18. Severn is said to be a River Trent Humber Boston Haven Lyn Haven and Tyber Orontes Euphrates 19 H 7. and Anfidies near which Hanibal the Carthaginean General struck the Battel of Canna be all of them in Histories of great authority named Rivers Rennatus Choppinus in his Treatise de Dominio Franciae Choppinus Lib. 1. Tit. 16. de fluminibus saith That Fluminum duo sunt genera Regalia quaedam
dispose of them Fourthly the Commissioners have a Clerk proper to themselves to Register their Laws Fifthly the Commissioners have power to make Orders and Decrees which are Judgements in effect and some of them cannot be reversed but by Act of Parliament And lastly Writs of Error have been brought to reverse Judgement given in that Court For all which causes I do conclude That the Commissioners of Sewers have a Court of Record although it be not holden in aliquo loco certo So was the Kings Bench a Court of more Eminency then this But ubicunque fuerimus in Angliae and for express Authority in the point of Gregories Case in the 6 Report of Cook chief Justice that the Sewers is a Court of Record Imprisonment imposed by the Commissioners of Sewers IT is a point of high consequence whether Commissioners of Sewers have power by these Laws to Imprison the body of a man for any thing touching the same for that Imprisonment of the body seemeth to sway somewhat against the grand Charter of England and against the liberty of a free-born Subject and it is said in Bonhams case 28 H. 8. in Dyer that liberty is a thing which the Law much favoreth and I finde in our Books of Law That the Judges have been very careful and curious in not extending words contained in Charters to the Imprisonment of mens bodies unless they were express in the point And therefore in Clerks case in Sir Ed. Cooks 5 Report fol. 64. Clarks Case The case is That the Term was to be kept at St. Albans and the Major there and his brethren did assess every townsman towards erecting and building of the Courts of Justice and made an Order That he which should refuse to assist and pay should be imprisoned and one being Arrested and imprisoned brought his Action of false imprisonment against the Major who pleaded in effect That they were incorporate by King Edward 6. and had power granted to them in their Major of St. Albans Charters to make Ordinances by reason whereof they made the said Order and so justified the imprisonment But it was adjudged against the Major for that by the said Charter they had not any power to make an Ordinance to imprison a mans body for that were against the grand Charter in Magna Charta cap. 29. Quod nullus liber homo imprisonetur Magna Charta nisi per legem terrae But by that Book they might have inflicted a penalty and have distrained or brought an Action of Debt for it In Doctor Bonhams case in the 8. Report King Hen. 8. incorporated the Physitians of London and gave them power by Charter to examine the Imperites to finde out the defects Et pro delictis suis in non bene exequendo faciendo utendo illos per punitionem eorum delinquentium per fines amerciamentum imprisonomentum corporum suorum So hereby it appears that by the Kings Letters Patents they had power to imprison the Body but I finde their Charters confirmed by Act of Parliament Yet in 2 Eliz. Dier fol. 175. the Case is That the Queen did award a Commission directed to certain Commissioners to Hear and Determine the controversies betwixt Scrogs and Colshil touching the Office of the Exigenter and that if Scrogs should refuse to obey to make answer before them they should commit him to Prison but the validity of this last Commission I much doubt of I am of Opinion That the Commissioners of Bankrupts and charitable uses have no power to commit any man but if any abuse or misdemeanor be committed in contempt or derogation of their Authorities they may make Certificate thereof into the Chancery and refer the punishment thereof to the will and discretion of the Lord Chancelor or Lord Keeper for the time being In Godfreys Case in the 11 Report there is a discourse what Godfreys Case Courts have power to Imprison and which not and there it is said Some Courts may Fine but not Imprison as the Courts Leet and Sheriff turn some others could neither Fine nor Imprison as Courts Baron and County Courts and some could neither Fine Imprison nor Amerce as Ecclesiastical Courts And some may Imprison and not Fine as chief Constables at their Petty Sessions for an affray done in disturbance of them And other Courts there were which might Fine Imprison and Amerce as the eminent Courts of Westminster So that Imprisonment is not incident to every Court nor to every offence Yet I am of opinion that the Commissioners of Sewers may Imprison the body for it is not only a Court of Record but is authorized by Act of Parliament and I suppose that there be words in the Commission and Statute which will bear this construction which are as follow viz. And all such as ye shall finde negligent gainsaying or rebelling in the works reparation or reformation of the premises or negligent in the due execution of the Commissioners That ye Compel them by Distress Fines and Amerciaments and by other Punishments ways or means c. Which words are strong and large enough to authorize the Commissioners of Sewers upon just Cause to Imprison the body But here they are to be careful and not to think that they may Imprison Fine or Amerce in any case because the words be generally put together But this construction must be thereof made That they may Imprison where Imprisonment is due and Fine in cases Fineable and Amerce in cases Amerciable and Distrain where a Distress properly lyeth by the Rules of Law and they may not Imprison where by the Laws Imprisonment is not due but every one of the said punnishments is to be used in its proper kinde for these words promiscuously put together must be ordered by a just and legal construction according to the Rules of Law and Reason And I have known the words of a Statute generally and promiscuously put together have been marshalled according to their distributive operations as the Statute of 1 Rich. 3. which is That all Feoffments Gifts Grants Releases and Confirmations of Lands made by Cestui que use should be good Yet though these words were generally put together notwithstanding the wise and discreet Sages and Expositors of our Laws have so Marshalled the words of this Statute that they made construction thereof according to the Rules and reason of the Laws That is That Cestui que use in Possession might make a Feoffment and that Cestui que use in Reversion or Remainder might grant the Land and Cestui que use of a discontinued Estate might release or confirm and yet the words of this Statute were general howsoever Reason must be the Expositor that every thing be done in due form of Law and not in preposterous maner And these matters being thus passed over I shall endeavor my self to declare in what cases Commissioners of Sewers may Imprison Fine and Amerce and where not Imprisonment Fine and Amerciament Fines IF one
into his Office and therefore the Offence is greater in him then in another man I have learned in Books that a Fine hath these qualities with it First the party in that case is imprisonable Secondly the cause for which it is imposed is not traversable being meerly the Act of the Court but if it be imposed upon a presentment found by Jury then the cause is traversable Thirdly all fines ought to be assessed abated or increased in Plena curia and not elswhere Fourthly every Fine ought to be reasonable And therefore I shall put the Commissioners of Sewers in minde as the Statute of 34 Ed. 3. cap 1. did the Justices of Peace that those Fines that they should impose for any 34 Ed. 3. offence coming before them should be reasonable having respect to the quantity and quallity of the offence for Excessus in re qualibit jure reprobatur communi But because in Godfries Case it is said that Commitment of the body to Prison is incident to a Fine as by a Gapias pro Fine also may be collected Yet I hold it questionable whether the Fine shall precede the commitment or the commitment the Fine But for my own opinion I hold that this lyeth much in the discretion of the Justices and I finde cases and presidents both ways for in 41 Assiz plac 12. an Officer was imprisoned quousque finem fecerit where the Imprisonment preceded the fine and with this agreeth 7 H. 6. fol. 25. 7 H. 6. and in 33 H. 6. fol. 21. one was fined and after Imprisoned for it and there the fine did precede the Imprisonment 33 H. 6. But upon all these I take the Law to be that if one be fined and this Fine may be levied by the Justices as Justices of the Peace may do but not Justices of Sewers there the Imprisonment may be quousque finem fecit because the Fine is leviable by them But the Law is not so of Commissioners of Sewers because they have no power to Levy but to extreat the Fines into the Kings Exchequer Howsoever one before them may be both imprisoned and fined Diversis tamen respectibus The one for the wrong done the other for the contempt or disobedience to the Court As for example if one refuse to be a Collector he is finable to the King because hereby the Commonweal is without an Officer and he may also be imprisoned for disobeying the Justices command and yet in my opinion it lieth much if not altogether in the discretion of the Commissioners to impose or inflict both the said punishments or one of them at their pleasures being not therein precisely limited by this Statute Amerciaments AMerciaments be not so grievous as Fines be for they be derived of the word Miserecordia which signifieth moderation mercy and to that end was the Writ in the Register Moderata miserecordia devised where one is outragiously amereed he might be relieved by suing forth that writ which writ and the Law in that case is grounded upon the grand Charter Magna Charta cap 14. Quod nullus liber homo amercietur nisi secundum quantitatem delicti And that none of the said Amerciaments be imposed Sed per Juramentum legalium hominum de viceneto Glanvil in his Book saith Est autem miserecordia Domini Glauvil Regis qua quis per Juramentum legalium hominum de viceneto eatenus amerciand ' est And Fleta lib. 1. cap. 48. saith Quod Fleta liber home non amercietur nisi per sacramentum parium suorum And with these agreeth Bracton lib. 3. cap. 1. and Fitz. Nat. bre fol. 72. and if the Steward set an Amerciament upon a Bracton man on his own head it is void By which authorities it plainly appeareth that Amerciaments are to be imposed by a Jury or by the Oaths of good and lawful men and therefore I have heretofore much marvelled when sometimes I have seen Justices of Sewers take upon them to set down Amerciaments without assistance of the Jury which act of theirs was directly against the said great Charter of England and contrary to the said authorities of Law So that there is a difference between the imposing of Fines which are done by the Justices and Amerciaments which be by Jury or otherwise per sacramentum parium So is there great diversity between the offences of the one kinde and the other For if one do suffer a Wall Bank or other work of Sewers to fall into decay for want of repairing which he was bound to maintain by Frontage Tenure Custom or Covenant he is in this case to be Amerced therefore And so if one be bound by any of the said tyes to repair a Bridge Calcey Goat Getty Sluce or to Cleanse a River if the same by his neglect be left undone or unrepaired he is therefore amerceable So if one be presented for casting Dirt Sand Ballast or other anoyance into the Rivers or Streams or for digging down the Banks or for pulling down the Walls thereof if the presentment do not express the same to be done with force or therein be wanting the word Purpresture the party presented is then but amerceable therefore So when one is tyed to cleanse the Rivers for passage of Boats and Ballangers or for the draining of the waters if he suffer Sand-beds to lye and choak up the Channel he is Amerceable and not Fineable therefore for no permission sufferance neglect or Nonfeasans can be found to be by force because they consist not in Agendo sic in similibus casibus Yet some cases following fall out of these rules pro ut sequuntur As if the violence of waters was so great either by breaking in of the sea in an extraordinary maner or by a sudden flood or inundation of fresh waters after a Rain that thereby the defences are broken down or caused Sand-beds or other Nusances to be these being presented no man is Amerceable therefore because the same could not have been prevented by policy nor resisted by strength In 42 lib. Assiz plac 15. a Presentment was That I. S. 42 lib. Ass had suffered trees to grow into the water and lay in the Stream by reason whereof ships were hindred in their passage and there was a Writ awarded directed to the Sheriff to remove the Nusans but Knivet Justice said there That I. S. should not be Amerced because the Nusans was no act of his but the Trees grew so naturally of themselves But perhaps it will be objected to me Can no Amerciaments be set but by a Jury or by the Oathes of twelve men Yes I am opinion it may be done by the presentment of the Surveyors of the Sewers for that is per Sacramentum parium as the Law appoints and in a Nonsuit we see daily that in such case the Plaintiff is to be amerced and this Amerciament shall be assessed by the Coroners of the county as appears in Greisleys
case and so the words of the Statute and of the Law may herein be satisfied Now I hope I have fully instructed the Commissioners wherein they may learn whom to Imprison when to Fine and how to Amerce in a legal and orderly sort and according to the ancient and approved Rules of Law and of the grand Charter for in those things they are to direct their discretions by the said Rules and they are to be guided thereby and are not to proceed therein according to their own wills And herein I shall conclude the second point of this part of the Law that is That Commissioners of Sewers have power to Imprison to Fine and to Amerce And that B. for refusing to obey their Order was justly imprisoned and C. was as justly fined And for the reasons and causes aforesaid the Commissioners in their discretions though the offences of both were alike yet they had power to imprison the one and to fine the other And now I do intend to proceed to the fourth point of my Case and the third point I intend to handle in a more convenient place Distress THe point of Distress in my Case is grounded upon these 4 Point words of this Law viz. And all those persons and every of them to tax assess distrain and punish as well within the metes limits and bounds of old time accustomed or otherwise or elswhere within the Realm of England Three sorts of Distresses First there be divers kindes of Distresses viz. Judicial which always issueth out of the Rolls of the Court. Secondly Ministerial and such Distresse is to be performed by the Officers of these Laws without any judgement directing the same Thirdly and there is a Distress of Common right not given nor awarded by Judgement in Court or by Warrant of the Commissioners but incident to the thing it self And first of the Iudicial Distress which is awarded by the Court upon a presentment found of a Nusans or in the recovery of an assize of Nusans or in an Action of the case as it appears by the 42 Assiz plac 15. 32 Ed. 3. 23. and 7 H. 4. 8. there a Distringas ad Amovendum shall be 32 Ed. 3. 7 H. 4. awarded to remove the Nusans and so in case of a decay presented As if I. S. suffer a Bank or Wall to decay and that be presented a Distringas ad reparandum shall be directed to the Sheriff to distrain I. S. to repair the same Secondly a Distress Ministerial is where one is assessed or rated to pay a certain sum of mony towards the repairing of a Wall Bank Sewer or Goat here upon Warrant from the Commissioners of Sewers the Officer expressed in that Warrant may distrain the cattel of the party which ought to pay the said Rate and Sess and which did neglect to pay the same And yet where there is a Rate and Sess imposed upon one by the Commissioners of Sewers I am of opinion that the Collector or Officer may distrain therefore without any express Warrant from the Commissioners so to do and my reason is grounded upon the Statute which is this because the Statute and Commission which be the general Laws do of themselves in this case give a distress And therefore in these cases the Warrant of the Commissioners is superfluous like to the Case in 20 Eliz. Dyer 20 Eliz. fol. 362. where a Fine was levied of Lands to the intent that I. S. should have and receive a yearly Rent thereout although in the conveyances there was no mention made that the party might distrain for the same Yet in that Book it is mentioned to be adjudged That the owner of that Rent might distrain for the same because the Statute of 27 H. 8. in 27 H. 8. that Case gave a distress Upon which Statute the said conveyance was grounded So if their be two coparceners to whom Land doth descend and they make partition and for more equality she that hath the better part doth grant to the other and her Heirs a yearly Rent out of her Land but limits no clause or power of distress she to whom this yearly Rent is granted may distrain therefore And so may a Bailiff distrain for an Amerciament in a Leet without a Warrant because the general Law gives a Distress in these cases Thirdly and as touching a Distress of common right It is in case where one doth hold his Land of his Lord as of his Mannor to repair a Bank Wall or other work of Sewers the Lord of whom these Lands be holden may distrain his Tenant of common right to compel him to make these repairs and the Distress given in the said Case of the coparceners and in the said Case of Amerciament in a Court of Leet seem both to be Distresses of Common right And that the Law is that a Distress lyeth for a Rate Lot or Tax imposed by the Commissioners of Sewers it is manifest by the Case of Rooks in Cooks 5 Report which is full and direct authority in the point In what place a Distress is to be taken NOw touching the place where these distresses are to be taken comes next into our consideration wherein the quality of the matter distrained for and the power from whence the distresses are derived are to be considered of And therefore if a Lord do distrain his Tenant Ratione tenurae for to repair a Wall Bank or other defence this Distress must be taken on the Ground holden by this Tenure and not elsewhere for these grounds are chargeable therewithal as the opinion of Iustice Sylliard is 21 Ed. 4. fol. 38. But not as that Case is but in point of Tenure 21 Ed. 4. for there the Case was That a presentment was found in hec verba videlicet Iuratores present ' quod est communis Regia via in Parochia Sancti Martini in Campis in Com' Middlesex inter Hospitia Epis ' Dunelmensis Epis ' Norwich totalitur superundat ' aquis quod tam domini spirituales quam temporales Justiciarii domini Regis Servientes ad legem omnes alii Legis ministri omnes alii per viam illam versus Westmonaster ' itinerantes pro legibus domini Regis ibidem ministrandis observandis sepius impediuntur per quod via illa totalliter superinundata existit excessu emanationis aquae pluvialis ibidem remanent ' quam quidem aquam Episcopus Norwicensis rationae tenurae suae ibidem evacuaere debuit quod ipse omnes predecessores sui ratione Tenurae suae ibidem evacuaere debent And in this case I take it the Land was charged not as in respect the Bishop of Norwich did hold the same of some Lord by the Tenure to repair the Sewer to avoid the water but his Land stood charged with the same as a charge imposed thereon by Custom or Prescription as by the president it self appeareth for if the Bishop of Norwich had been
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
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
the charge for the erecting maintaining of the new ones are to be laid on the Level So that it behoveth Commissioners to be careful in these affairs else things in the conclusion may fall out contrary to their expectations for it is well said That Rerum progressus ostendunt multa quae in initio nec praecaveri aut praevideri possunt In making new Laws and Ordinanes these things are also considerable First what the matter of the Law is which is to be Enacted Secondly when the matter is known then to weigh it well whether if it be made if then it will prove necessary and behoofful for the good of the people and this necessary point is to be scanned by the counsel and advise of the most discreet and experienced persons and of the best tryed judgements in matters of this native And thirdly to consider what charge the work will cost for the which this Law must be made for in Scriptures he is not counted sapient that before he build a house will not first count the charge of it And fourthly what persons must bear this charge least it prove too burthensome and this must be directed by the ability of the people which are to be charged and by the the safety and commodity they are to have by the work I observe also that this Statute useth three words which are all powerful in signification and operation videlicet Laws Ordinances and Decrees and I think it fitting for me so near as I can both to deliver the definitions of them and the differences between them A Law A Law is properly a matter which hath taken his essence and power by a Custom time out of memory as the Common Laws have done Or else is a matter Acted and Enacted in Parliament by the King and the great Counsel of the Realm and by the Authority thereof for the ordering of mens Bodies Lands and Goods and such a Law is hereby intended because the Laws which the Commissioners shall make have the power of an Act of Parliament to strengthen and assist them and they are to receive life and perfection from this Statute I read on Ordinance AN Ordinance is a word having a more private and less powerful signification then the word Law hath for it is a Law but of a secundary power enacted by a Corporation Company or Commission proceeding meerly out of the Power and Prerogative of the King by Charter Grant or Commission warranting the same as those Corporations Societies and Companies which have power by Charters or Patents to make the same as is set forth in the cases of the City of London and of the Chamberlain of Londons Case in Sir Edward Cooks Reports Also Ordinances may be made by the power of a Court as in a Court Baron to make Orders or by the Inhabitants of a Town by Custom for the ordering of their Commons Repairing of their Churches and Highways And these are more properly by-Laws then Laws for a Law is either the Common Law Customary Law or an Act of Parliament all which are of greater force then any Laws made by these secundary means which of themselves are of little or no strength but as they are assisted by other primary powers Decree A Decree is neither a Law nor Ordinance in proper definition but is only a Sentence or Judgement in a Court of Justice delivered or declared by the Judges there by and through the power strength of a general former Law for Decretum est Sententia lata super Legem So that a Law is a general direction for a multitude An Ordinance is a subordinate direction proceeding out of a more general power And a Decree is a Sentence delivered for or against a particular person grounded upon the said Laws and Ordinances Continuance of Laws IT comes now fitly for me in turn and course to declare the continuance of these Laws Ordinances and Decrees for it is to be observed that some of them be but temporary though others perpetual The words in our Statute are That every Statute and Ordinance made before the Statute of 23 H. 8. concerning the things and matters therein mentioned as well in the time of H. 8. as of any of his Progenitors not being contrary to this Statute or heretofore repealed shall stand in force for ever and are commanded to be put in due Execution But this clause is intended of all Acts of Parliament made touching the Sewers and be not intended or meant of Laws and Ordinances made by the Commissioners of Sewers themselves Laws and Decrees made for sale of Lands by the Powers and Authorities of this Statute are to be made and ingrossed into Parchment and certified under the Seals of the Commissioners into the Chancery and the Kings Royal assent had thereto under the Privy Seal shall also stand good and effectual And all Laws and Ordinances written in parchment and indented and under the Seals of the Commissioners whereof the one part shall remain with the Clerk of the Sewers and the other part to remain in such places as the Commissioners should appoint notwithstanding the same be not certified into the Chancery nor the Kings Royal assent be had thereto shall continue in force till the same shall be altered 13 Eliz. cap. 9. repealed or made void by another Commission of Sewers although the former Commission by the which these Laws were made were determined by Supersedeas The Commission is to continue for ten years from the date thereof by force of the Statute of 13 Eliz. yet notwithstanding 13 El. all Laws and Ordinances which are written in parchment indented and sealed by the Commissioners of Sewers without certifying into the Chancery or the Kings Royal assent had thereto shall notwithstanding the determination of the Commission by the expiration of the said ten years continue in force for one whole year next insuing to be put in execution for that time by six Justices of the Peace whereof two to be of the Quorum but then the power of the Justices of the Peace is ceased by the corning of a new Commission of Sewers All other Laws and Ordinnces of Sewers which are but made and writ in paper or which be but in parchment and not Indented or which be indented also if not sealed continue in force no longer then that Commission continueth by the power whereof they were made And so by this short declaration I have made the Commissioners may the better observe how long time Laws and Ordinances of Sewers are to continue in force yet though they lose their vigor they may notwithstanding be revived by the power of a new Commission or remain for presidents for after ages to imitate Repealing of Laws IN this last place I intend to deliver my opinion what Laws Ordinances and Decrees may be repealed altered or made void by the Commissioners of Sewers Therefore it is first to be considered what grounds are to be observed in repealing or