particular Good Now two sorts o Men are dealing in the Waters 1 your Miller and 2. your Fisher anâ— both of them more covetous of a particular benefit they get than sensible o any general harm they do there 1. First The Miller the Water-Miller I mean and he hath his 1. Mill his 2. Mill-dam and his 3. Flood gates things obstructive to 1. Navigation and to 2. Drayning every one of them and in case 1. new Ones be made where none was before 2. or the antienâ— Ones be enhaunsed and enlarged abovâ— what they were before 1. such Enhaunsements you are particularly to Present and by the Power of thiâ— Commission they may be 1. abated 2. such new-erected ones you are to Present and by the Power of this Commission they may be 2. prostrated and over-turned 2. Secondly The Fisher And abundance of Devices he brings along with him as 1. Fish-garthes 2. Weares 3. Hebbing-weares 4. Keddles and 5. Heckes all of them Engines and Devices to catch Fish and â—y stopping or straitning of the Rivers â—ll of them Impediments to Navigation â—nd for such particularly reckoned up in â—he Commission and in case any of â—hese Weares 1. have not been warranted by sufficient 1. Prescription or 2. Custom but 3. have been erected de Novo 1. in or 2. after the time of Edward the First without Authority of Parliament they may be Presented â—ere and demolished Or in case 2. â—uch as are warranted by sufficient preâ—ription or authority have any ways een inlarged and exalted above their â—tient Assizes that inlargement ought articularly to be Presented 1. wherein nd 2. how much it is and they ought â—o be corrected and reformed that is educed to what they were and De â—ure ought to be And so I have done with all such ofences as are Certi Nominis and partiâ—larly expressed in the Commission But besides these what offence soeveâ— shall be committed that shall be 1. either Obstructive 2. or Destructive to 1. Navigation or 2. Draining doubtless you are to Enquire of it anâ— Present it All which that you eitheâ— know or can imagine All of them I say are comprized in the Commission under the general terms of 1. Impediments 2. Le ts and 3. other Annoyances So that what things soever shal in any manner or kind whatsoever 1 either impede and hinder 2. or let and destroy 1. Navigation or 2 Draining 3. or shall in respect of either of them be Ad Nocumentum that is be real Annoyances or general Mischiefs you are to make particular Presentment of them and we her to take order that they be reforme and redressed And so I have don with the second part of my Discourse And have told you what you are to present wherein as to your Duty have endeavoured to express my se fully and plainly And I have observe a Method upon the Commission as t that end only which I confess ma admit of some just exceptions And uâ— on occasion hereafter I may endeavour either to Clear or Alter However I hope it may be excused if it be considered that I had not the least Vestigium of any man before so as to Direct me and to Follow him in it One thing more remains and that is How you are to Present And truly Gentlemen I would have your Presentments both 1. Formal 2. and Fair 1. as to the substance or matter of them Fair and Just and Justifiable however 2. and as for the Form of them I shall blame no Man for questioning and insisting upon that too as much as 1. the Nature of the Work and 2. the End of the Commission will permit But I would have it well considered that it is not in works of this nature as in particular Causes which other where are between Person and Person only In them dispute matter of Form as long as you please and if you miss one way to it again another there is but one Person suffers by it all the while and he may be relieved well enough at last too But in works of this nature in some of them at least nay in most of them the whole Country is concerned And I hold it no great discretion to dispute the Formalities and Necessities of a Presentment while the whole Country may be drowned for in such a Case who must make the Recompence But to come home to the business all that I have to say to you is that your Presentments ought to be certain 1. Certain First In respect of the Person that it may be known who you Present Persons here in England have 1. Names and Sir-names distinguishing them from such as be of other Names and 2. they have places of abode and other additions distinguishing them from such as be of the same Name and as many of these are to be expressed as may sufficiently demonstrate the Person you Present that it may certainly be known who it is you mean 2. Secondly Your Presentment ought to be certain in respect of the 1 Default or 2. Offence that it maâ— be known what you Present and tha ought to be as particular and certain a may be too both in respect 1. of th thing what 2. the place where 3. the manner how and 4. the quantity how much is in Default and in respect of Offences 5. the time also when would be some wayes ascertained too though not so exactly as in some criminal Causes the very day and hour yet so as in your ordinary Actions of Trespass so far I say at least And truly Gentlemen nothing can carry the Form of a Presentment that hath not these two Certainties and that in all the respects and degrees I have mentioned Commendable nay admirable hath been the diligence and care of former Ages in this kind who have gone not by guess and at random but 1. to the Persons certainly by their exact 1. Terrages and 2. Aggistment Books and 2. to the Default by Admeasurements and have ascertained a Presentment to a Foot thus it hath been but how is it now I have oberved in some of your Presentments 1. That for the Persons you would Present not so much as their Names are to be found in them they being no otherwise expressed than by supposition as Owner of such Lands or Heir or Assignee to one deceased and these signifie just no-body the Court can take notice of without another Jury to enquire who they be 2. In others of them if you have Presented the Persons fully yet they upon perusal of your Verdict could not certainly know for what so that having 1. many Works of the same condition in several parcels or 2. much Work contigiously adjacent in one they could not certainly know what thereof to amend so as to amend what was Presented and all this because you have not ascertained the 1. Default or if that not 2. the just and proper Place of it These are the common Imperfections
INSTRUCTIONS FOR JURY-MEN ON THE Commission of Sewers SHEWING 1. What they are to Surveigh and View 2. What to Enquire and Present 3. How DELIVERED In a Charge to 3. several-Juries at a Session of Sewers holden at Spalding in the County of Lincoln To which is added Two other Charges The One concerning Lovell's Works The Other touching the River of Glean in the said County LONDON Printed by T. Leach for Tho. Johnson at the Golden-Key in St. Pauls Church-Yard 1664 Licensed AUGUST the 1 st 1664. Roger L'Estrange Gentlemen You of these several Juries VVHen I look upon you consider the persons 1. To whom I am to speak Some of you Men grown Gray in this imployment and that know as much what belongs to it as I can tell you Or when I look upon others 2. Before whom I am to speak Gentlemen much better able to doe it than my self I cannot but think some such thing may befall Me as did that Philosopher of Ephesus who most presumptuously undertook to instruct Hannibal in the Discipline of War A Self-conceited man bred up another way and in studies of another Nature yet out of 1. Arrogancy and 2. Ignorance would give Hannibal a Discipline in his own Art wherein he was so famously eminent I would spare it without 1. Envy and 2. Offence To the 1. Living and the 2. Dead That for Valour and Wisdom he was to be reckoned One even amongst the Greatest Generals that ever appeared in the Head of an Army And what I have to speak to you here may prove as that he did there not only Needless but Absurd and ridiculous However yet under Favour of those that hear it Give me leave though not in a way To 1. Instruct you in your Duty as if I thought you Ignorant No nor yet To 2. Direct you as if I thought you Unskilful or Unexperienced But only To 3. Remind or Remember you of it You are here three several Juries of 1. Surveigh and 2. Inquiry And for order and method I shall reduce all that I have to say to you to Three general heads First I shall declare to you What you are to View in order to your Surveigh Secondly What you are to Present in order to your Inquiry And Thirdly How you are to Present so as to perfect both These three I conceive comprehend your whole Duty The First tells you what you are to travel and ride about when you are gone from hence The Second tells you what you are to do when you come hither again The Third tells you in what manner you are to do it of these with as much clearness and shortness as I may For the First what you are to View I do take it they are all such things as are properly within the defence of the Laws of Sewers and do concern either 1. Navigation or 2. Drayning or 3. common Land-passage in such Maritime Countries as this is First then One great end of your View and Enquiry is to preserve Navigation that is according to the common use of the Word in matters of Sewers all manner of passage by water and this doth not only 1. employ the Merchant and many more under him and make him to abound but it also 2. enriches the Common Treasury by Customes and 3. upholds the general Trade and Traffique of the whole Nation and is in a special manner advantagious to such Countries as this that are adjacent to the Sea for hereby as you may Export many of your home-growing Commodities and sell them abroad at the dearest Rates So such as are Imported and brought in 1. from forein Countries or 2. from other Countries within your own you buy them with the 1. first and at the 2. cheapest and other Upland-places cannot have them but 1. from you or 2. after you Now the Commission of Sewers in a matter of such great import as this of Navigation is very exact and careful 1. First In respect of all kinds of Navigation 1. Whether it be with Vessels of the greatest bulk as Ships 2. Or with Vessels of the smallest kind as Boats 3. Or with Vessels of a middle nature as Ballingers which many take to signifie certain kinds of Vessels immediately employed about the lading or unloading of Ships in some of the greatest Rivers of this Nation as I am informed there be some of the greater sort of Vessels of this very name and for this very use and are fresh-water Vessels of the greatest bulk framed with Oares and without Sails I shall neither trouble my self nor you about the Original of the Word There be would fetch it farr enough from an Hebrew Radix but if I should follow Minsius in this his Opinion I should have a farther trouble to tell you who brought it hither therefore I shall only and plainly tell you in the Commission I take it to signifie the same with your Naviculae Actuariae amongst the Latines such as be the Ballingers or Balasters properly so called we have already spoken of As also your Barges and your Keels and all other kinds of your greater fresh-water Vessels carrying Anchors in them by the one they are distinguished from Ships by the other from Boats 2. Secondly In this Point of Navigation the Commission is very exact in respect of all Waters that be in any manner Navigable I mean in case they be so 1. of common right which being once spoken I would have it understood in every part of my Discourse for the Commission defends not any Navigation nor any water-course but the common water-course and the common Navigation only and then whether it be in greater or in lesser Waters in smoother or in rougher Currents that is in 1. Rivers 2. Streams or 3. other Floods doubtless it is to be preserved and the Commission doth in specie and in particular nominate every one of them The second sort of things you are to view are such as concern Drayning and these be such as directly preserve your Country and do immediately concern the very Being both 1. of the Country and 2. of you in it Now these are of two sorts First such as preserve the Country from being Drowned by keeping out the Waters Secondly such as make the Country dry by issuing out the Waters Those Defences that preserve the Country from being Drowned by keeping out the Waters the principal of them and such as are expresly named in the Commission are 1. your Walls and 2. your Banks I shall not be over-curious in the distinguishing of them such as distinguish them in regard of the Materialls whereof they consist and will have a Bank to be only of Earth and a Wall only of Stone will hardly â—erive our English Wall from the Laine Vallum for that that was usually of Earth is out of all question For my part I conceive the difference to be â—ather in the manner of the Defence So that if they be main Defences
small River But as for the derivation of the word Sewar from two of our English words Sea and Were or as others will have it Sea and Ward give me leave now I have mentioned it to leave it to your judgements However this word Sewar is very famous amongst us both for giving the Title to the Commission of Sewars it self and for being the ordinary name of most of your common Water-courses for Drayning in the Country and therefore I presume there are none of you of these Juries but both know 1. what your Sewars signifie and also in particular 2. what they are and of a thing so generally known and of such general use I shall use no more words to you but that you have a special regard and care of them And thus much of your Water-courses which relate only to Drayning and have no living Fountains from whence they are fed but are only Drains and serve to discharge and carry off the surplusage of other waters such other waters I mean as either 1. have their immediate downfall from the Heavens amongst us 2. or descend from Upland Countries to us 3. or are the Over-stowings of Rivers and greater Streams upon us Four kinds there are of them as you have heard two of them of private and particular charge and benefit only as your 1. Gutters and 2. your Ditches other two of common and general charge and use as 3. your Trenches and 4. your Sewers Now will you see how they stand in order and relate one to another Take it briefly thus Your 1. Gulters they bring the waters from off your Grounds to your Ditches 2. Your Ditches they bring the waters down to your Trenches 3. Your Trenches they carry them out to your Sewers And 4. your Sewers they carry them away to the Sea And of them thus much The remaining Water-Courses mentioned in the Commission are such as relate both to Drayning and also to Navigation and that in an Eminent Manner And they are your Streams and your Rivers 5. Fifthly Streams I do take for such Currents of water as have both a 1 Certain and a 2 Constant Source from whence they Flow. You may make two sorts of them First such as do conveigh the water from the Fountain to the River some of these which do descend from greater Springs are Navigable from the very head As to give you an example of one that lyes within the charge of one of these Juries and withall to charge them take special notice of it Burne-â—i is such a Stream and though this as all other Streams of this nature be Navigable but with Boats that is with Vessels of the smallest size only yet as I formerly told you such Navigation is to be preserved However these Streams are a great advancement to all Navigation whereupon the Author of the Readings upon the Statute of Sewars no less truly than eloquently calls the Springs from whence they Flow the very Vital Spirits of all the Rivers in the Land Secondly other Streams there be which have been devised to make a Navigable passage from one great River to another call them Leams or Streams it matters not much as long as you signifie the same thing with me and these very prudently have been devised as helps to inlarge Navigation and so farr only to be suffered as they inlarge it and better it For where 1. they either make Navigation worse by diverting the water or 2. indanger the Country by overflowing the Levell they are as I shall hereafter tell you within the power and view of the Commission of Sewars indeed but as impediments and annoyances to be reformed or removed and n that case are rather to be esteemed Waters out of Course than Water-Courses And thus much concerning Streams which I take to be sufficiently distinguished from all the former Waer-Courses in that they have a cerain and a constant Fountain or Source from whence they Flow which the oher want 6. The Sixth Water-Course named in he Commission is a River and this properly is made up of Streams and is no other thing than many Streams incorâ—orate into one and so becomes Naviable to the Sea Besides that Rivers re greater waters than Streams a River nd a Stream differ also in Exitu that â— in their Outfall for the Outfall of a tream is commonly a River but the ommon Outfall of a River is the Sea Many are the benefits and advantages of a River even such as be of private Concernment wherein certainly many particular Persons may have good Right and Interest and whereof such as in truth have so further than as at some times they may cross the main end of the Commission of Sewers ought not to be debarr'd the Injoyment or limited in the Use But I shall say no more of these a being not comprised within the Commission only I shall tell you that suc there are and that the Commission o Sewers was not made nor intended t Destroy them but only to Regulate them so as that particular Convenienciâ— might not become general Mischief But to come home to the Commission from whence and whither Is it th your Ships sayl but 1. From and 2. T your Ports your Havens and they a nothing else but secure Harbors upâ— your Rivers 1. Your Havens Harbors f security only 2. Your Ports as the wo is usually here taken amongst us in o English language besides that places 1. Privilege and 2. Defence too whâ— is it that your Boats and Barges â— Balingers and other Vessels have th common passage Is it not upon your Rivers These two for Navigation but give me leave to ask you a third Question What is it that doth conduce so much to matter of Drayning as your Rivers doe Other Drayns you have I confess But your Rivers 1. They are the grand conveyers of the water from the Fountain to the Sea which they ought to bear down 1. in their own Chanels 2. and other adjacent receptacles till they discharge it there And so they carry away the mischief 1. of Springs wholly and 2. of Land-waters also as to the greatest part of it Again 2. The Rivers they keep open a Chanel or vent into the Sea and so give an Outfall both 1. to their own waters and 2. to all your other Drains too without which your Drains all of them would be useless For you had as good have no Drain as they to have no Outfall So that I may well say without Rivers there would be neither 1. Navigation nor 2. Draining to any purpose Therefore Gentlemen It concerns you to take special notice of your Rivers There are some four as I take it in the whole County that be Navigable and two of them are now under your view the one of Welland the other of Gleane The one of these namely that of Welland t is said must drown all Holland Est adhuc in Fatis and I pray God we in this careless Age
and more to look after it than most other Men The Commissioners are now to View with your â—es and to receive Information from â—ur mouths you are the Men that reâ—esent the several Wapontakes whereâ— you dwell and 't is now in a specil manner become your particular ust and duty truly to inform the â—ourt what by virtue of this Comâ—ission is 1. fit or 2. needful to be one there and I hope you will be â—reful that you do discharge it 3. Thirdly From Religion And â—at is an Oath you have here taken â—at you will discharge it Shall I tell ou what an Oath is 'T is the very trongest Bond in Religion and some ay Religion it self hath its Name a Ligando as being nothing else but a â—ond to God-ward Now an Oath is â—o less than a Bond upon the Soul it self Numb 30. V. 3. than an Obligation â—pon your Consciences as you are Christian Men. Deum invoco Testem in Animam meam I call God for a Record upon my Soul saith the blessed Apostle 2. Cor. C. 1. V. 23. And So help me God and his holy Gospells that is So help me God in Christ say every one of you You 1. contest God you 2. oppignorate your Salvation it may be both 1. a Soul-matter and 2. a Salvation-matter and therefore not lightly to be esteemed 1. God he is the God of Truth and is there any of you dare deal falsely with him and be 1. knowingly yea 2. willfully and 3. stubbornly Negligent And 1. not endeavour nay which is worse 2. obstinately and 3. absolutely refuse to discharge your Duty as some very lately here before you have done wherein you are thus solemnly engaged however in truth and according to the best of your skill 2. God he is the God of Righteousness and is there any of you in an unjust way for 1. Malice or 2. Favour or 3. Fear or 4. Corruption 1. dare not to do what you ought or 2. dare to do what you ought not If you dare let me tell you 3. God he is the God of Vengeance too Et qui fecit Testem caveat vindicem He that hath made God a Witness let him take heed he make him not a Revenger too for he will not be a Witness in vain neither will he suffer any of you or us no not the best of us all to take his Name in vain But Notions of this kind you ought to hear from another place and therefore here I forbear them only give me leave to tell you That an Oath is a thing so Sacred that the very Whore in the Commedian she is at her Aliud si scirem Sanctius There was nothing in the World she knew of greater Religion or Obligation And 't is a sad complaint in this later Age of the VVorld against Christian Perjury Christianus Fecit nil Mirum nec Novum That we Christians should make no more account of it the very Turks upbraid us with it So Gentlemen to conclude here is a the three-fold Obligation upon you in this business 1. the first a Rational Obligation from Prudence 2. the second a Civil Obligation from Justice 3. and the third a Sacred Obligation from Religion Let some of these or all of them at least make you both 1. careful and 2. conscientious to discharge it And so I trouble you no further with words but leave you to your VVork DIXI A Charge of Sewers 1. As to Lovells Works 2. And the Charge of them Occasioned upon his Assignes being Outed in Deeping Fen and the Re-entry of the Owners and Commoners there Anno Domini 1657. Gentlemen You of this Jury TO give you some account upon what business you are called hither It cannot be unknown to you that one Thomas Lovell Esquire some years heretofore by virtue of certain Lawes of Sewers and of an Act of Parliament became an Undertaker for the Drayning of two great VVasts in this County The one of them called Deeping Fen understanding by that name as I shall do throughout my whole Discourse and as I have VVarrant for it from a Law of Sewers made â—o that purpose all the Fens in that Continent between the two Rivers of Welland and Glean The other Thurlby Fen and Burne South-Fen Some of you seem to be of those years that I question not but you did personally know the Man himself and might also know both 1. the Condition of the said Fens and 2. the Charge of all Works of Sewers relating thereto before Lovells intermedling This Undertaking of his I may well call a great Work if meer Undertakings make one 1. Great First In respect of the Persons Interessed For in the said Wasts besides Cowbitt and Caswick and the odd Houses in Gretford and Tofte no fewer than twenty Towns in the parts of Kesteven and Holland have right of Common three whereof are Market Towns and they of as good trading and traffique as most generally in the County 2. Great Secondly In respect of the End Intended which was the great Benefit and Profit that upon the Drayning of the said Wasts was to ensue not only to the Commoners and other persons Owners therein but also to the Common-wealth and Realm of England it self And I would I could add that it had been great Thirdly In respect of the End Executed too that is a great Work in the Performance or a great Work perfected but this being wanting I may with much truth and propriety of language say it hath proved no Work at all This great defailance is the cause of this present Meeting and is the occasion of your present Enquiry For your better direction wherein I shall propound three things First What the Covenants or Contract on the part of Lovell was Secondly Lovell for the present being legally Outed from his third part in those Fens or in most of them what now is to be done as to the Works he hath left And Thirdly Where and how they are to be charged Touching the First the Covenants upon which Lovells Undertaking was grounded may be reduced to two Heads First What he was to Do. Secondly What he was to Have As to the First what he was to Do the principal Works omitting those of less concernment as being not much material to our purpose were these 1. First 1. The Drayning of the said Fens and 2. the continuing of the same for ever firm dry and depasturable Grounds for Cattel at all times of the year a commendable Work doubtless had he performed it Antiquity hath made famous mention and hath given famous testimony to Works of this nature the very designation of them is recorded by Suetonius to the fame and honour of that great Emperour Julius Caesar and that inter Majora opera amongst those renowned and Imperial Works or Designes of his such as to follow the expression of that Author were de ornandâ Instruendâque urbe de Tuendo Ampliandoque Imperio For the