the Exposition is not to be tyed hereto so notwithstanding this exception these grounds though gained since the Statute are within the relief thereof The second cause wherefore these new grounds should not be within this Law is Because these Lands be increased beyond the bounds since the making of these Laws and so it may be alleaged that they cannot extend to the new inlargement for Mr. Plow in his Com. fol. 129. saith That Laws Plow Com. and Priviledges tied to a certain Place or Precinct cannot be fol. 129. extended or inlarged beyond the ancient Bounds although the Predinct be inlarged As the Case in 7 H. 6. fol. 32. 7 H 6. fol. 32. where in a Nativo habendo a Villain had remained a yeer and a day in London which was ancient Demesn and there was a priviledge that every Villain and Bondslave which had remained a day and a year in London the Lord might not seize him and the Villain pleaded that he had remained a year and a day there and so took himself to be within that priviledge but because since the said liberty granted the bounds of London were much increased therefore it was there held that the said liberty and priviledge did not extend to the new inlargement And the Case is also put in the said Coment that the Bishop of Durham had divers liberties in his Lands lying between the two Rivers of Tyne and Tese and after he purchased other Lands there the said liberties did not extend to the said new purchased Lands and the like Law is if one have a Warren in his Mannor and Lands in Dale after he purchase more grounds there his Warren doth not extend unto them And so where one had by Charter the Lands of persons forfeited for Treason he could not have by the said ancient Charter Lands forfeited for Treason by Tenants in Tail because the forfeiture of them was given by a late Statute since the Charter but his non obstantibus I am of Opinion That this Statute I now treat on extendeth to these new gained grounds and I take a difference between a special Law of Priviledges and Liberties which is stinted or bounded either by Statute Charter or Custom the same can by no construction be made to exceed the bounds but the general Law of this Kingdom as this Law of ours is the extents thereof be as large as the whole Realm is and they be not tied to stinted limits as particular private Charters and Customs be and so I conclude That in point of extent this Statute of 23 H. 8. is tied to no other bounds then to the Kingdom of England Diversity between grounds gained and grounds left THe third matter is that which I have grounded the conclusion of my Case upon and that is Whether the grounds in my Case newly left by the sea to the shore and the shore be such grounds as be within this Commission And in my opinion they be not And therefore to maintain my opinion herein I take a difference between grounds left by the Sea and grounds gained from the sea for grounds left are of no value and bring forth no fruit or encrease at all but the uppermost part thereof are sand which these Laws take no hold of for the Commission extends only to grounds won and made profitable for the Commonwealth of this Realm which Terra relicta yield not for no profit at all thereof ariseth till the sand be inned and gained and these Laws made the Commissioners Savers and not Gainers and therefore did extend the Commission but to the utttermost banks and walls and left the shore as grounds possessed by the sea and so be put pro in defenso by this Law and therefore I do make my conclusion as followeth First That the Seas Creeks and Bays are all within this Statute in point of extent but that they and the shores and the relinquish'd grounds be all of them out of this Commission of Sewers to be dealt withal thereby Secondly That Ports and Havens are totally the waters as well as the walls and banks thereof within the Commission of Sewers Thirdly The shore and grounds left by the sea when they are put as in Gainage are then and not before within the power of the Commission of Sewers Fourthly although the grounds left by the sea are not in point of defence within the Commission of Sewers yet a wall or bank may be thereon raised for the aid and succor of the countrey but not for any cause where the defence extends but to themselves And although the grounds that have been gained from the sea in the county of Lincoln and elswhere in this Realm yet that was done at the labor of private men and not by the Commission of Sewers which aims at the general good and not at private Commodities So that Super totam materiam I am of opinion with the conclusion of my Case that is That the said new Island is the Kings the grounds left to the shore pertains to C. the subject and that because they are all of them within the Realm of England they are therefore within the extent of this Statute But in regard they are grounds left only and not gained nor made profitable for the Commonwealth of this Realm they are not therefore within this Commission And so I conclude my Argument as I did my Case in which I hope I have neither injured the Subject in his private Inheritance nor wronged Prerogative in any point Finis primae Lecturae Initium secundae Lecturae FOrasmuch as the first day I went perambulation about the Sea and of all which belong to her Empire and Dominion wherein I did survey her bounds her qualities and her government Now I do intend to go a progress through the Land and to take a view of the fair goodly Rivers which make their voyage to the Sea for these my Statute hath taken into her protection And this second day I purpose to call a Court of Oyer and Terminer And I do intend with your gentle patience to examine all the particulars there arising And because the said Statute of 23 H. 8. must be my chief guide to direct my fairest passage through these uncouth ways I will pray aid thereon and I will now proceed to declare what business on Land this Law hath undertaken to defend and what offences it purposeth to reform And accordingly the said Law doth distribute it self into these particular Branches I. First Into matters of defence this Statute maintaineth are these following viz. 1. Walls 2. Banks 3. Ditches 4. Gutters 5. Sewers 6. Goats 7. Calceys 8. Bridges Secondly Into matters of Offence which this Statute termeth Le ts Impediments and Annoyances which are to be put down or reformed as cause shall require 1. Streams 2. Mills 3. Ponds 4. Fishgarths 5. Mildams 6. Locks 7. Hebbingwers 8. Hecks 9. Floodgates 10. Other like Lets and Impediments And to the end I might fully
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
or granted to him as King but by Record And in the same degree is a County Palatine in his County because he hath there Jura Regalis And this Livery and Seisin may be actually and really done and performed or else it may be done within the view of the Lands intended to be conveyed And as touching Livery and Seisin to be actually effected if the Feoffment contain Lands in two several Counties and Livery and Seisin be made in one County in name of both this will not pass the Lands in another county because the Land passeth by the Livery which is local and not by the Deed. But in an exchange of Land in two several Counties by Deed the same is good for there the Land passeth by the Deed. But if one make a Feoffment of a Mannor lying in Demesn in the County of L. and in services in the County of M. these services and so Rents will pass by attornment of the Tenants though they lye in a foraign County and so of an Advowson appendant and such like because those rents and services pass not by the local ceremony of Livery and Seisin but by the ceremony of Attornment which is personal and depends upon the person which is transitory wherein I take this difference That if a Feoffment be made of a Mannor by Parol the Advowson appendant Villains Regardant and Rents and Services by Attornment of Tenants will not pass to the Feoffee till the demesns and Lands be first conveyd But if the Feoffment be by Deed then the Rents and Services will pass by Attornment of the Tenants and delivery of the Deeds before Livery and Seisin be made to pass the demesns Then seeing that Land in one County will not pass by Feoffment by express Livery made in an other County if then the same may be passed and conveyed by Livery within the view is the question of our Case And in my opinion they may because it is a ceremony performed by the eye which is a member or instrument which hath his operation by aspect Tam procùl quam propè But express Livery and Seisin which is done by the hand cannot in reason be extended to another place then where the body is And although the eye be fixed in the head annexed to the body yet like the Sun his beams are carried afar of And this Livery by the view is not a Livery in the County where the body is but properly in the County where the Land lay which was the object of the eye and in this case it is said to be Livery onely and not Livery and Seisin because the Seisin is properly when the party enters and the entry of the party is that which perfects the work which is in proprio commitatu And for authority in the point 28. Ed. 3. fo 11. there is a Case according to my opinion where the Husband at the Church door when 18. E. 3. fo 11. he was to take one to wife he made a Deed of Feoffment of Lands lying in another County to the said woman and then delivered the Deed to her and shewed her the Land then they married and he entred in claiming to her use and these Lands were thereby well conveyed to the said woman by this Livery within the veiw in another County Now it is fit to be declared what view is sufficient for there be two maner of views The one general the other special In the special view every particular piece of ground is to be seen but in the general view it sufficeth to take notice of the grounds by the place they lie in and in my opinion The general view in my Case will suffice For if one make a Feoffment in Fee of a whole Island or of a whole Mannor or Town and make Livery thereof within the view this is good and yet it is not possible to view every particular piece of ground at once for Trees Houses and Hills might so be interposed that the view could not be taken of some part thereof yet notwithstanding veiw of the rest will pass Also if Lands be covered with Water Ice or Snow these will pass well in a Feoffment or Livery in the veiw In Brook Title View plac 101. the Case there may give Brook 101. the rule to our Case for there it is said in a Writ of view It is not necessary that all particulars in Specie should be put in view but to see the fields where the grounds lie promiscuously it will suffice and is a good and perfect veiw Sed est vn auter diversitie concernant veiwe Carsi vn fait Feoffment de B. acre que gist del auter parte dam Mountaine tout hors del veiwe la Liuerey de ceo nest bone sans expres veiwe tamen tout voile passer per veiwe de parte sic in mon case on part ' gist south le floud del mere ceo non obstant passe vt parcel del mannor Ascuns aver teneus ceo Knightley pur vn in 28. H. 8. in 28. H. 8. Dier que Liuercy deins le veiwe doit touts foits este fait in cases de necessity ceo vrging in respect del chose ou del person del chose quia leterre gist del furder side dun grand ewe ou in le ewe ou ne puit oste facile accesse del person quia que le Feoffor ou Feoffee soit lame ou infirme detraher ceo in question Jeo aye mist mon case quia le Feoffment Liuerey fuit ad plenitudinem maris tamen Jeo sue de opinion que Liuerey deins le veiwe puit este fait sans ascun matter de necessity ceo vrging ceo Jeo collect per le liuer de 42. Ed. 3. Fitz. Feoffments 54. when the Son did give back the Lands to his Father as freely as his Father had 42. Ed. 3. formerly given the same to him and this was within the view and it doth not appear that either this Livery or the other made to the said woman in 28. Ed. 3. were made of any necessity urging the same And there be some persons which can neither give nor take by Livery within the view and that is where the Feoffor or Feoffee is blinde So a Major and Commonalty Dean and Chapter or other corporate and politique capacities cannot give or take within the view Some have held a difference that a Parson of a Church might not take by Livery within the view to him and his Successors because that came to him in his politique capacity which had no Eyes but if he were seized in the right of his Church that he might infeoff I. S. thereof by Livery within the view because this was a wrong to the Church and therefore A Conceit was in the power of his natural capacity which had Eyes But the main Point in my Case is Whether Livery within the view may be given and taken by Attorneys and whether the view is so incident to the person that it
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
or custome can fetch lands further then the low water-mark Grounds left But now what grounds shall be said a leaving by the Sea is a point in my Case also for it is certain that at spring-tides the Sea useth to overflow the Marshes in Lincolnshire and Norfolk and returneth within a short space again these being usual and annual be not accounted grounds left or gained from the sea so because the Marshes in Lincolnshire and the Sands in Lincolnshire be overflown every twelve hours and then dry again are not accounted grounds left or gained from the sea because the sea hath daily her recourse thereon and therefore in 15 and 16 Eliz. in Dier fo 326. 15. Eliz. Dyer 326. in the Case there was a quantity of ground was left by the Sea and whether the King or he whose grounds were adjoyning should have them was there made a question but in that Case there is an excellent president set down very apt for the handling of this point put in 43 E. 3. Contra 43. E. 3. Abbot'de Ramsey de quodam processu in Scacario facto versus dict' Abbot ad ostendendum quare Sexagint ' acrae marisci in manus dom ' Regis non debent sesiri quas predict ' Abbas appropriavit sibi domui suae sine licentia Regis super quandam presentation virtute cujusdam generalis Commission ' de terris à Rege detentis concelatis Abbas respondit quod ipse tenet maner ' de Brauncest quod scituatum est juxta mare et quod est ibid quidam mariscus qui aliquando per fluxum maris minoratur aliquando per de fluxum maris augetur absque hoc quod appropriavit sibi prout per presentation ' predic ' supponebatur And the Attorney of the King maintained the contrary and therupon the King and the Abbot were at an issue so by the Case I gather these matters First That if by little the Sea sometimes decrease and leave some parcel to the Land and some other times run over the same again this ground belongs not to the King for these be grounds whereto the subject may have a property as in the grounds of the shore but otherwise it is where great quantity of ground which had always been drowned before is left that belongs to the King Also by this president the Law was taken to be that these grounds left by the Sea to the Land were in the County of Norffolk whereto they did adjoyn and in my opinion within that Parish whereto they lay for there was a Presentment which was by a Jury of Nofolk and the Jury taken to try an Issue must be de viceneto ejusdem commitatus but note there the Presentment was by a Jury de Corpore Commitatus in 22. lib. Assis pl. 93. The Case was That 22. lib. Ass pl. 93. a River of water did run between two Lordships and the soil of one side together with the River of water did wholly belong to one of the said Lordships and the River by little and little did gather upon the soil of the other Lord but so slowly that if one had fixed his eye a whole day thereon together it could not be perceived by this petty and unperceivable increase the increasement was got to the owner of the River but if the River by a sudden and unusuall flood had gained hastily a great parcel of the other Lords ground he should not thereby have lost the same and so of petty and unperceivable increasements from the sea the King gains no property for De minimis non Curat Rex but put the case the sea overflow a field where divers mens gounds lye promiscuously and there continueth so long that the same is accounted parcel of the sea and then after many years the sea goes back and leaves the same but the grounds are so defaced as the bounds thereof be clean extinct and grown out of knowledge it may be the King shall have those grounds yet in Histories I finde that Nilus every year so overflows the grounds adjoyning that their bounds are defaced thereby yet they are able to set them out by the Art of Geometry These grounds in my Case which are left by the sea and The Prince count Palatine of Chester lye from the haven next to the shore are as I have formerly delivered it within the county Palatine of Chester and therefore whether the Prince or the King shall have them is now my question The Prince hath not only Jura Regalia but also Escheta Regalia within his said Palatinate and so in my opinion is not only owner of the county but Lord of the Prerogatives there and all Jurisdiction is to the Prince only a Writ of Error lieth in the Kings Bench of a Judgement there like an Appeal to Caesar then he is Lord of those Laws by which the Freehold and Inheritance of those lands be ruled wherefore then should not these lands belong to his Grace And first it is usual to have a Commission directed to enquire of these Lands ut de terris concelatis and this inquiry shall be by Commission if that Commission be to issue out of the county Palatine of Chester then the Lands would questionless fall to the Prince and the inquiry to be made of the Freeholders of the said county Palatine The Case put in Barkleys Case in the Comment of Mr. Plowden fo 129. doth force much against the Princes Title for there it is put that the Bishop of Durham had Liberties and Priviledges in Terris suis inter Fluvios de Tyne de Tese and afterward purchased moe Lands between these two Rivers the said Liberties and Priviledges shall not extend thereto and so if one have a Warren in his Lands in Dayle and he purchaseth other Lands there his Warren cannot be extended upon these new purchased Lands for saith the Book Things or Priviledges confined to certain Precincts or Dominions cannot be extended further though the Dominion be inlarged and that they shall not be inlarged with the inlargement but the County Palatine vested in the Prince is prescribed within no other bounds then the word County doth confine it and therefore this falling to be within the county should be properly his and as I am imformed the Prince hath special words therefore in his Charters if it were granted that these grounds could be claimed by Charters but I am clear of Opinion That no increase of the new left grounds can possibly become within the county of the city of Chester for the bounds thereof cannot extend over that circle which their Charter hath confined them to and so for the causes and reasons formerly declared I take it That the said Island is the Kings the ground left between the haven and the ancient shore belongs to the Prince as Earl of Chester and the shore because of the said prescription appertains to C. the Subject as parcel of the said Mannor and so
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
alia Bannalia sive privata Regalia dicuntur ex quibus principes Jure patrimoniali vectigall capit in quibus modum tempus piscationis constituit and Sir John Davies in his Irish Reports in the said Case of Banne saith That so far as the Sea doth flow and reflow it is a Royal Stream and the fishings therein belong to the Crown but where the same doth not flow and reflow Tertennants of both sides de Communi Jure have the Pischary yet a Subject may have the free fishing in the Royal streams by custom and prescription And in the River of Thames tam aqua quam solum pertinuit Dom ' Regi and by Charter they were conveyed to the Lord Major of London and Citizens of the same In Lib. Intrac fol. 666. In veteri lib. Int. fol. 666. there is a president put in this maner That an Action of Trespass was brought Quare le defend ' piscat'est in sua separali pischaria pisces inde videlicet duos Salmones caepit the Defendant justified and said That he was seized of the Mannor of Dale which doth extend it self usque ad medium aquae de V. quae est eadem pischaria in qua supponitur pischationem predict ' fieri exaustriali parte and that the Plaintiff eodem tempore quo fuit sesitus de manerio de Sale quod se extendit usque ad medium fili aquae predic ' ex boreali parte ejusdem aquae quod ipse defendens omnes quorum statum ipse habet in predic ' manerio de Dale à tempore quo non extat memoria hominum in contrario seisit ' fuerant de predic ' australi parte de predic ' aquae ut de separali pischaria sua in which pleading it appears That the Lords on either side the River owe the River by several moyeties and the several moyeties and the several parts of the fishing as incident thereto It may also here as I take it be moved for an apt question In whom the property of running waters was for Nat. br fo 123 P. C. 164. in Natura Brevium fol. 123. there is a quod permitt ' habere liberam pischariam in aquae ipsius L. whereby it appears That the Plaintiff had property in those waters and in Plo. Com. 154. one granted aquam suam in L. and the Pischary passed thereby and so did the soil also in my opinion for in 12 H. 7. fol. 4. a precipe quod reddat is brought de una 12 H. 7. fol. 4. acra terrae Cu ' aqua Cooperta In my conceit the Civil Law makes prettier and neater distinctions of these then our Common Law doth for there it is said That naturali ratione quaedam sunt Communia ut Aer Aqua profluens mare littora maris I concur in opinion with them that the ayre is common to all and I hold my former definitions touching the properties of the sea and the sea shores But that there should be a property fixed in running waters I cannot be drawn to that opinion for the Civil Law saith further quod aqua profluens non manet in certo loco sed procul fuit extra ditione in Ejus cujus flumen est ut ad mare tandem perveniat for in my opinion it should be strange that the Law of property should be fixed upon such uncertainties as to be altered into Meam Tuam Suam before these words can be spoken and to be changed in every twinckling of an eye and to be more uncertain in the proprietor then a Camelion of his Colours Our Common Law which of all others is the most certain did not set his property upon a Dear in Parks Conneys or Hares in Warrens nor on Fishes in running Streams all which be more permanent then running waters be And therefore I am of opinion that taking this word Aqua for the bare running water there can be no property therein but as the same is incident to the soil taking them two for one it is drawn with the property thereof and this difference is apparant by 12 H. 7. aforesaid And Mr. Lyuwood puts a difference inter Fluvium flumen for saith he Est perennis decursus aquar ' sed flumen est propria ipsa aqua Let it not be held Questionable whether Rivers of both kindes be within these Laws or not though they be not put among the defences which this Statute speaketh of for that expresly those things which are termed Lets and Impediments are commanded by this Statute to be removed out of the Rivers and Streams for hindring the waters and Navigation being so carefully provided for cannot be supported unless Rivers Navigable be maintained and these Rivers are like the veins of a mans body by means whereof the increase of the grounds near thereunto adjoyning are abundantly multiplyed and the waters which trouble the Level are conveyed away thereby so that I am clear of Opinion that Rivers and their Channels Waters and Banks are all of them fully within the defence of these Laws howsoever some which would have no new Rivers cast by the power of these Laws would extend the words but to the repairs and not to the River it self Sewer A Sewer whereupon these Laws took their name hath been no great stranger to our Common Laws of this Realm being perfectly described though not precisely defined in our Law some mincing the word compound it of two words Sea and were saying that nomina sunt consonantia rebus and there is some coherence between the name and the nature of the thing Authorities in Law will best decide the question and therefore 20 H. 6. fol. 1. an action of waste 20 H. 6. fol. 1. is brought there against Tenant by the courtesie for suffering a Sewer in part of the grounds to be unrepaired by reason whereof his grounds in L. which the Defendent held by the courtesie of England were sorrounded so that by this book it is made manifest that the Sewer is a fresh water trench compassed in on both sides with a bank and is a small current or little River And in 12 H. 4. fol. 7. an Action of the Case was brought for stopping of a Sewer in 12 H. 4. fol. 7. Dale by reason whereof the waters did overflow the banks and drown the Plantiffs Meadow grounds So these two Cases sufficiently declare what a Sewer is and Hollingshead in his Chronicle termeth the Fleet Dike in London a Sewer and I am of opinion That it is a diminutive of a River and by express words Sewers be within these Laws sic est in 39 H. 6. 31. Gutter A Gutter is of a less size and of a narrower passage and current then a Sewer is and as I take it a Gutter is the diminutive of a Sewer and the difference between them is That a Sewer is a common publike stream and a Gutter is a straight private running water and the use of
purposes to make any order or decree to relieve the Town of A. with waters from B. for this Statute makes but two uses of Rivers Sewers and Streams the one for draining the other for sailing and being for neither of these purposes the Commissioners have no power to deal therein But if two towns do adjoyn and in either of them there is a River Navigable and by accident one of them is dried up and the other aboundeth with waters more perhaps then there is necessary use of I am in the case of opinion that the Commissioners of Sewers have power by the Commission to make a Law or Ordinance to relieve the River which wants waters out of the abundance of waters which the other River hath in help and supply of Navigation But put the case that I. S. keeps Boats for his own necessary uses and occasions and for no other purpose the Commissioners have no warrant by their Commission to relieve I. S. with waters for this his own private use for that their power is the Republike Yet if I. S. hath used with his Boats to carry and recarry for the common use of the people in general then he is within the relief of these Laws The new Stream and cut which was now of late made and cast by Mr. Middleton from Ware to London could not have been done by the power of these Laws because it was not made for the draining or sailing but for houshold affairs and therefore special Statutes were enacted to begin continue and perfect that work in 3 4 Jac. Regis and after the stream was effected these two Statutes brought the same within 3 4 Jac. Reg. the power of these Laws And now seeing my Law hath brought me in my argument and discourse among the things defended by these Laws I shall now make a little digression from my Case to treat of Bridges and Calceys and Goats the proper inventions and works of mens hands and pertinent to this place to be treated of by the order of this Statute and they be three material instruments which this Statute by name hath been careful to take order for Bridges BRidges are diversly taken in these Statutes for some are thereby to be maintained and other some are to be extirped or reformed as lets and impediments wherein I think it not amiss for instruction to open some other leading Statutes which have provided for them The first Statute of Bridges is in Magna Charta cap. 15. Magna Charta cap. 15. nulla villa nec liber homo distringatur facere pontes nisi qui ab antiquo de jure facere Consueverant tempore Henrici Aui ' nostr ' this word facere is to be construed in the sence of Reparareor Manutenere for other construction it cannot have And if this Statute should be in force I take it that it would abate much the power of the Commissioners of Sewers for it seemeth by the letter of it that either no Bridges were to be repaired but such as were made in the time of H. 2. and before H. 2. neither should any be bound to repair them but such as in His time had then used and were bound to repair them but this Statute is neither repealed nor must be abridged as not to extend to Bridges made sithence and I take it under favor that it stands on surrounded grounds which this Statute hath to do with as also for such Bridges as the Statute of 22 H. 8. cap. hath power over which are Bridges 22 H. 8. standing on High ways for both these Statutes do in my Opinion oppose the said Statute of Magna Charta Howsoever Sir Edward Cook in his Cases of the Isle of Ely Case of the Isle of Ely recites the said Statute as it were in force at this day and if so then the exposition must be made as I take it that all Bridges made and erected since are out of the inhibition of that Statute or else that Statute is totally repealed For otherwise all Bridges builded since should not be repaired because no person or town should be obliged to do them And then were the power of Commissioners of Sewers almost altogether inhibited touching Bridges and their hands closed up for medling therewithal but I take this Statute of Sewers in full strength to deal with such Bridges as come within the reach of it Bridges within the Law of Sewers are such as lye on or near surrounded grounds especially if they be not only placed there for free passage but also for strength to defend the violence of the waters as many of this kinde be viz. London Bridge Rochester Bridge the great Bridges at Lincoln Boston Bridge and the like and such as lye on Inland and high countreys over high ways as Burton Trent Ware Wainsford Huntington and such like be within the said Statute of 22 H. 8. and I make little doubt of it but all the said last mentioned Bridges are also within the provision of the said Laws of Sewers for they lie and are built over such Rivers as be all of them within these Laws The Statute of 22 H. 8. extends not to Bridges lying out 22 H. 8. of highways but the Statute of Sewers doth extend to such also And therefore if a Bridge stand on a common Sewer Ditch or Gutter which hath his current to the Sea or to some River the Commissioners of Sewers hath power over such either to repair the same or to extirp it as just cause and occasion shall require Also private Bridges are within these Laws as if I. S. and his Ancestors owners of such a House have had and used to have a Bridge over a greater or less River to the Church and to his Pasture Grounds or to his Common this Bridge and all other of this kinde are within this Statute of Sewers viz. to be put down or reformed if they be impediments to the Common-wealth and also to be maintained if thereby the same be any material defence against the rage and violence of the waters otherwise not but for putting down such Bridges which have been by prescription I hope the Commissioners of Sewers will be well advised therein seeing time hath given great approbation of them and therefore I shall handle this point more fully when I come to treat of Lets and Impediments where that part of this Statute comes most fit to be handled The Statute of 22 H. 8. extends to the repairing and amending of Bridges onely but if it be fit to take an Arch away or to adde a new Arch thereto or to erect and build a new Bridge where none was before this is most fit to be done by the Commissioners of Sewers whose power may be extended thereto All Bridges set upon Rivers by persons without authority may be pulled down by the Commissioners of Sewers and the parties punished for no man ought of his own authority to be so bold with the common and
discretion omitting many other because I had rather trust to the worst certain Law then to give too much way to the uncertain discretion of the Commissioners according to the old saying Quoad fieri possit quà m plurima legibus ipsis definiantur Aristotle Ret. quam paucissima vero judicis arbitrio relinquantur and herein I suppose I have made good my word in this that I have proved by my Argument That the said new Bank and new River might well be decreed by the view and survey of the Commissioners and by their good discretion and so might the said old Sewer be repaired and therefore these being ended I will now proceed to the handling of the rest remaining My former labor hath been to expound and declare what defences as well against the overflowing of the sea as against the inundation of fresh waters were and be to be maintained and also new erected by the Tenor and power of these Laws So that now it comes very aptly to be handled for what causes considerations and matters one shall or may be tyed to the repairing and keeping thereof which I take to be these nine several ways 1. By Frontage 2. By Ownership 3. By Prescription 4. By Custome 5. By Tenure 6. By Covenant 7. Per usum rei 8. A Township 9. By these Laws of Sewers I suppose I shall produce sufficient Warrant and Authorities for to maintain all these distinctions wherein I am desirous that Commissioners of Sewers for whose learning and instruction I have taken these pains would apply themselves to do their duties and service herein carefully and advisedly and like to skilful Physitians would apply fitting Medicines to the curing of every disease else shall they oftentimes Opprimere insontes dimittere reos But if they will seriously cast their eyes upon these insuing Cases they will be very helpful to them in their proceedings Frontage FRontage is where the grounds of any man do joyn with the brow or front thereof to the Sea or to great or royal streams and in case of the sea or royal River the property of the Banks and grounds adjoyning are and belong to the subject whose lands do but and bound thereon but the soil of the sea and royal Rivers do appertain to the King as formerly in my Tractate of Rivers may appear But in case of petty and mean Rivers and streams the soil of them as well as the banks thereof do appertain to them whose grounds adjoyn thereto so that Frontage and Ownership in base inferior Rivers do not differ but in great streams and the sea they do vary as aforesaid And in 37 lib. Assiz plac 10. it seems that the Frontagers are bound to 37 assiz pl. 10. the repairs and in 8 H. 7. he whose grounds are next adjoyning to a Highway is bound to repair the same And by 8 H. 7. these cases there is no difference touching repairs of the High streams and the highways in my opinion Ownership THe Ownership of a Bank Wall or other Defence is a sufficient warrrant to impose the charge of the repairs thereof upon him without being tied thereto by prescription as appears in 8 H. 7. fol. 5. and it stands with 8 H. 7. reason that every man should be bound to repair his own and the consideration is also moving for that his grounds which lie nearest the waters are soonest subject to drowning and if any increase be upon the small Rivers it falls to his share Prescription and Custom PRescription and Custom are much of one quality for in both of them the efficient matter is use to repair and the Law hath taken notice of them in many of our books Prescription doth not binde or tie one to the repair of any thing unless it be ratione terrae and in this it doth differ from Custom for if it be presented that A. B. and his Ancestors have time out of memory used to repair such a Bank Wall or other Defence this Presentment is void and doth not binde the party pro ut constat in 21 E. 4. 38. 21 Ed. 4. 7 H. 4. 19 H. 7. 45 E. 3. 7 H. 4. 31. 19 H. 7. Kelwey fol. 52. and 45 E. 3. But bodies politique or coprorate may be by Custom bound to repairs without making mention in the Presentment or Indictment that they are to do the same ratione talis Messuagii terrae aut tenementi And to that purpose be the books of 21 E. 4. 38 and 44 Ed. 3. Fitzherb Title Bar. plac 103. for 21. E. 4. 44 E. 3. there a Prior was presented that he and his Predecessors had used time out of memory to repair such a Bridge which was in decay and this presentment though it charged no Land was good And in 19 Hen. 7. aforesaid it is 19 H. 7. said that one might be bound to repair a Bank or Wall ratione Resiantiae but this could not be otherwise taken but that he was charged to do the same for the house he dwelt in for Resiantia imports so much Also if a man and his Ancestors have voluntarily made a defence for a long season this will not binde his Heir thereto though he have assets descended to him in Fee-simple for descending charges will not binde the Heirs unless he descending have assets as an equal consideration to binde him thereto neither will descending assets of Land binde an Heir in this case unless the Land it self be really tyed and charged Tenure A Man by the Tenure of his Land may be bound to repair a Wall Bank or other Defence mentioned in this 11 H. 7. Law and in proof thereof the Book Case of 11 H. 7. fol. 12. is full in the point where it is said That if before the Statute of Westminster the Third a man had made a Feoffment in Fee or if since that Statute one had made a Gift in Tail to hold the same by repairing a Bridge the said Feoffee and Donee and his heirs should have been bound by the said Tenure to repair the said 12 H. 7. Bridge and with this agree the books of 12 H. 7. 18. and 24 H. 8. 24 H. Br. Case fel. 9. and in Porters Case in Sir Edward Cooks Porters Case first Report it is said That if Lands were given to repair Ways Bridges Calceys or such like this doth binde the Owners of those Lands to do those repairs in perpetuity And in the Case of 12 H. 4. fol. 7. the Prior of St. Marks in Bristol was obliged and bound by the tenor of his Land to repair a common Sewer and this enough to satisfie this point Covenant SO likewise a man may be bound by his Covenant to repair a Wall Bank Sewer or other such like matter and he may binde himself and his heirs to do the same but yet this Covenant will not binde his heirs after his death unless there be left assets in Fee simple to descend to the said
Sesse every person according to his several quantity of Estate which may be done in this maner when the Commissioners be agreed how much to lay upon such a town then to send for three or four of the Inhabitants and cause them to give in every mans Estate and to make and appoint them Sessors to rate every man or else the Commissioners themselves having true intelligence of every mans Land may easily set the rate and charge upon every particular person in an even and proportionable sum and thus every man at the first shall know his own rate as in the assessing of the Subsidy and no man shall be burthened with his Neighbors charge and these were good courses to be used within both the letter and sence of these Laws And this course was used by the Four and twenty Jurators in Kent in Rumney Marsh who always upon their Oaths set Chart. of Rumney down every particular mans ground in certain and their just pag. 50. quantities and accordingly were the parties severally taxed Howsoever the Tax in my opinion generally imposed upon the town is good as appears by many Authorities and Books before remembred even by this Statute as well as by Custom for in the said Book of the 37 and 38 lib. Assiz 37 and 31 lib. Assiz it doth not appear that the Townships there rated were so taxed by any Custom but meerly by the Law of the Land and so is the learning delivered to be in the Councels Order aforesaid And I do remember that at the Assizes held at Lincoln in Anno 12. Jacobi in a Tryal before Sir Edward Cook then Judge of Assize in the Case of Sir Philip Conisby Knight the town of Mauton was assessed five pounds and Twigmore as much and a distress was taken for non-payment thereof and was justified in a Replevin and the verdict passed for the distrainer and no great scruple was then made of the said Assess laid and imposed generally upon the towns which Case I specially noted because it was tryed and passed for current before the said Sir Edward Cook who had the year before reported the Law in his Tenth Report to the contrary And I am also of Opinion that if a new defence be agreed to be made as a Wall Bank Sewer or any other and a Sesse is appointed for this work and laid upon a town That the same is a good Sesse and well laid as well as in the Case of old repairs where Custom may give Warrant unto it and the Commissioners in their discretion may so do in imitation of the said former rules and presidents and it stands with good wisdom and discretion to imitate and follow ancient and approved Laws and Statutes made in Parliament which are done by the wisdom of the whole Realm And in my conceit a decree made which hath no reference or dependency to former presidents may be doubted whether it be legitimate or not having no ancient Laws to patronize it And thus I conclude my third point of my Case That a Township may be taxed by the Laws of Sewers Tythes HEre is likewise in my Case a Parson Rated and Sessed for his Tythes and is now to be put to the question whether by these Laws he may be taxed for them or not The ancient Commissions of this kinde have very strict words in them to tie every one to the charge of these defences being for the preservation of the Commonweal and this Statute extends it self with a long and large arme to fetch and reach every man that hath grounds lying within the Level and which partake of the good which the defences brings to them to be contributory to the charge It is true that Ecclesiastical and Spiritual persons as Parsons Vicars hold their Ecclesiastical living exempt ab omni onere seculari for they do not hold their Churches of any Lord but of the Lord of Heaven in respect of the spiritual service they do therefore And I take it that Parsons and Vicars hold not their Churches in free alms for then the Founder should be their Lord in point of Tenure and service which I have not observed to be so in any And in our Law Books it appears that Spiritual persons were exempted from Lay and Temporal charges as in Magna Charta cap. 14. A Spiritual person shall not be amerced according to his Spiritual living In Fitz. Nat. bre fol. 228. there Fitz. Nat. bre is a Writ directed by the King to his Officers and Ministers forbidding them that they take not any Toll Murage or Pontage of Ecclesiastical Parsons Vicars and such like and the said Writ sheweth that by the Custom of the Realm no such exactions ought to be taken of them And there is another Writ there to discharge them for paying Customs de bonis suis Ecclesiasticis vel de aliis pro sustentatione sua emptis And also they have this priviledge That the Sheriff nor any Lay-Officer are not permitted to meddle with their Ecclesiastical possessions for in 20 H. 6. fol. 20. and in many other Books it is held that in a Writ of Summons the Sheriff may not Summon a Spiritual person on his Spiritualities but he must rather that he is Clericus beneficiatus non habens laicum feodum and upon this return the party is to take a Writ directed to the Bishop to Summon him on his Spiritualties And therefore if the possessions of Spiritual persons are had in such great esteem in our Law what then shall be done with Tythes which are said to be due Iure Divine I have not read that they shall be charged to any thing but to the repair of the Temple in the 18 chapt of Numbers the 21 22 23 24 25 26 27 and 28 verses The Lord said I have given to the Children of Levi all 18 chapt Numbers the Tenth in Israel for an Inheritance and yet the Levites paid a Tenth thereout to the Priests and so Clergymen in times past paid a Tenth to the Pope and in imitation or rather in reformation thereof by the Statute of 26 H. cap. 3. the 26 H. 8. like is now paid to the King as Supreme head and Governor of the Church here on earth So here be charges paid out of the Tythes but they be Spiritual charges And in Mr. Seldens History of Tythe pag. 13. it appears by Collection and Connexion of Stories divine That the first or Selden the first year Tythe was paid to the Levite The second to Feast at Jerusalem and the third to the Poor And had not the Statute of 43 of Eliz. cap. 2. made the Parson and the Vicar liable and chargeable to the relief of the Poor which was in imitation as it seemeth of the Mosaical Law they had not been bound or tyed to do the same for it is held to be more charity to relieve the Church then the Poor And in payment of Taxes and Subsidies they are granted
that part of the Statute which giveth sale of Lands yet he is within the other part thereof for divers Reasons One I finde by experience and in divers presidents that many Copyholds have been and be charged with repairs of Bridges and other defences in divers parts of this Realm by customs Also if a Lord grant a Copyhold to I.S. and his heir by Copy Tenendum by the repairs of such a Wall Bank or Bridge this bindes this Copyhold thereto in point of charge And lastly this Statute bindes such to the repairs which may have good by the doing or hurt by the neglect And it is apparant that by over flowing or inundation a Copy-holders Land sustains equal damage with other Lands and for these Reasons I resolve that a Copyhold is within these Laws And shortly touching Copyholds I do confine them to these four heads My four Tenents concerning Copyholds First a Copyhold is sessable towards these repairs for his Copyhold Secondly that the Lord of the Copyhold is not to be taxed for the Soil of the Copyhold for although he might come to it by forfeiture committed yet that is a forain possibility and although he be seized in Law of the Freehold yet because the Issues and Profits go with the Copy-holder this Law therefore will not charge him for the Soil Thirdly in respect the Copyhold rent is a rent of Assize and rents be within the express letter of this Statute and because his rents by the overflowing of the Sea be lost therefore the Lord shall be assessed for it if it be of value Fourthly I am of opinion that a Copyhold may not be sold by the Commissioners of Sewers and yet Copy-holders be within other parts of this Law Now because it is a high point in this Statute in what maner to rate tax and assesse by the judicious power of these Laws and in regard my Case toucheth all maner of Sesses and Rates which be or may be imposed by these Laws I will therefore spread it abroad and I do intend to treat of what Lands and other things are to be assessed towards the repairs in my Case and what persons to be assessed and in what degree Wherein first I am of opinion that one is not to be assessed for his high and descending grounds for so it appears Register was the opinion of Brudnel in the 12 H. 8. fol. 3. where he saith That if a mans ground be surrounded with waters he may make a trench in his own grounds to let the waters run downwards and to descend upon his neighbors grounds for water is an element descendable jure naturae And also high descending grounds can have no such use of Walls and Banks as other grounds scituate lower may have for the waters can have no force against them and therefore the owner is not chargeable therefore and the words of the Commission expressed in the Register be Qui defentionem Commodum salvationem per Predict as Wallias Guttur as pontes Calceta gurgites habere poterint nullatènus parcantur And the Charter of Rumney Marsh seems to bear the same sence viz. Quod pro securitate dicti Marisci districtiones fiant ita quod aequè fiant secundum portiones majores minores quas homines habent in eodem Marisco But high grounds by nature need not Engines of art to defend them And in Rooks case in Sir Rooks Case Edward Cooks 5. Report and Keighleys Case it is truly declared That the grounds lying on the Level which are in apparant danger subject to surrounder are only chargeable to repairs by this Law But yet grounds lying on high Mountainous places may be by Custom Prescription or Tenure liable and stand chargeable to repairs of Walls Banks Sewers Goats and other Defences And in such cases though they be never so high yet these Laws will reach unto them but no charge is to be imposed on them by this Statute and by force thereof onely without a special Custom or Prescription to warrant the same Annuity IF a Dean and Chapter or other Corporate persons or Body Politique be by Prescription to pay a yeerly Annuity to I. S. and his Heirs I. S. is not sessable for his Annuity yet the said Corporate or Politique persons pay the same in respect of their Lands which lie in danger of surrounding and so the grounds be subject to these Laws but it issueth not thereout And the said Corporate and Politique persons are not charged in their Lands but in respect of their Lands to pay the same Commons THose persons which have Common of Pischary Turbary or of Pasture in great Fens Marishes and Wastes may be charged but Commoners in agris seminatis after the corn severed as stock Commons which be of a smal value are not to be charged for their Commons but for their Lands Ferry HE which had a Ferry over a River was in 37 lib. Assiz pl. 10. charged to repair the River and so for a Ferry one may be charged by this Law Herbage HE which hath the Vesture or Herbage of grounds as Prima tonsura vel vestura terrae may be charged to the repairs Free passage IT appears likewise that those persons which had passage for their Boats on the River were to be rated towards the repairs in 37 Lib. Assiz pl. 10. but this is to be intended of those persons which had free and customary passage thereon as a liberty and inheritance and was not meant nor intended of poor Boatmen which come thereon with their Boats accidentally by the general Custom of the Realm Parks Warrens Chases A Man for his Park of Dear and Warren of Conies shall be charged if these liberties lie within the Level but for Chases I suppose one is not chargeable onely for Dear which be ferae naturae not bound to certain precincts but in that case the owner is onely to be taxed for the Soil Mart Fair or Market ALso if one have only the liberty of a Mart Fair or Market to be kept in a place which is subject to surrounder In my Opinion because they are but casual in their profits and not continuall in their being although they be conscribed to place and circuit yet being no part of the Soil nor of the issues and profits thereof they are not taxable within these Laws Offices THe Office of the Clerk of the Market Town Clerk or such like although these Officers be confined to a certain place and precincts within the Level which is subject to surrounder are notwithstanding exempt from these taxations Proxies Synods HE which hath Proxies or Synods of Annual sums of money such as was in the Case of Proxies in the Irish Reports is not sessable within this Law for although the person is charged therefore in respect of the grounds yet the same doth not issue thereout The Morgager for the Title he hath by the Condition to reduce the Lands back again to him or he which hath
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
by the Tenure of his house or lands bound to avoid the waters there needed no Prescription to have been alleaged Also in 5 H. 7. fol. 3. there is a like Presentment made 5 H. 7. against an Abbot Quod ipse predecessores sui ought to repair a gutter ratione tenurae terrar ' suar ' but because in that case the Presentment did not set forth where those Lands lay which were charged the Presentment for that cause was holden to be void So that there is a great difference between a Tenure charge and a charge imposed upon Land by Prescription For in the case where a Tenant holdeth his Land to repair a Bridge Wall or Bank of the Lord of the Fee The Lord in this case may distrain the Tenant of Common right by the Common Laws of England But where ones Land is charged by Prescription and Custom there is no remedy to force and compel the Tenant to do the repairs but by Presentment and upon a Presentment process may be awarded against him to distrain him to make the repairs And if upon a Presentment made by the Laws of Sewers I. S. is charged to repair a Sewer and a Distringas ad reparandum be awarded against him the Sheriff may distrain the party in any place within the power of the Commission of Sewers But this being a judicial Distress which issueth out of the Rolls the Justices are tied to the limits and bounds of the Commission Yet in 19 H. 6. fol. 7. the 19 H. 6. Case was That the Admiral of England hath jurisdiction in causes arising onely on the Seas and he hath no jurisdiction or power to meddle with any thing done upon the Land Yet upon a Presentment made in the Admiral Court one was Presented and Amerced and a Distress for this Amerciament was taken on the Land and exception was thereto taken that the Distress was taken out of the jurisdiction of that Court But there Newton chief Justice and the rest of the Iustices said That the power of the Admiral to hold plea was restrained by Statute to matters arising on the Seas but Executions were not so And I have further observed by the Book of 8. R. 2. Fitzher 8. R. 2. Avoury 253. that where no place is certainly prescribed to distrain in that in such a case the Distress may be taken in any place within the power and jurisdiction of the Court out of which the Writ or Warrant of Distress doth issue As if one be amerced in a Court Leet or in a Court Baron he may be distrained for these Amerciaments in any place within the jurisdiction of these Courts and for an Amerciament set and imposed in the Sheriffs Turn a Distress may be taken for it in any place of the county for so far the power of that Court doth extend it self But in the case of a sess rate or tax imposed by the Commissioners of Sewers a Distress for any of those may be taken in any place within the Realm of England for in this case the Distress is meerly grounded upon the Statute and is bounded by the same limits which is as large as the Realm of England And hereupon by this construction made in this legal maner all the words in the said clause of this Statute have their full operation And although in Rooks case the Distress was there taken on the ground charged yet that doth not prove but that a Distress might have been taken in any other place for I verily take it that the place where the distress was taken in that case was not intended any material point though in my succeeding argument for another purpose I shall make it one So that my opinion touching distresses to be taken in cases of Sewers appears to stand upon these three distinctions First that the Lord of whom the grounds be holden to make the repairs must distrain on the the grounds so holden and not elswhere Secondly that upon a Distringas ad reparandum or Amovendum upon a Presentment which issueth out of the Rolls of that Court and is a judicial process a Distress must thereupon be taken within the bounds of the Commission of Sewers Ex congruitate Thirdly a Distress for a rate or sesse or tax assessed and imposed by the Commissioners of Sewers may be taken in any part or place within the Realm of England for this is a Distress grounded upon the Statute and is as large as the extent thereof And so the difference appears where the Distress is guided by the Commission and where by the Statute Whose goods may be distrained IT comes now in turn to be handled whose goods may be distrained and taken within these Laws For the words of Distress be put so generally in this Statute that they must receive their exposition by the Rules of the Common Law in regard these Laws do give no special direction therein and therefore the Distress mentioned in Rooks case may in this place be questioned For there Carter was assessed but the goods of Rooks were distrained and taken for the said Assess and no challenge or exception was there made of it and no marvel for it was specially found that the goods were taken and distrained on the grounds charged for otherwise that Distress had been tortious wherein I take this diversity That where grounds are chargeable to repairs of defences and a Sess is thereon imposed by the Commissioners of Sewers the goods of a Stranger may be taken therefore on the grounds Sessed and this is warranted by Rooks Case But Rooks being a Stranger his goods could not in any sort have been taken for the Sess imposed upon Carter but on the grounds charged and the like Law for Rents and Services issuing out of Lands the goods of a Stranger Levant and Couchant on the grounds so holden may be distrained for Rents and Services by 7 H. 7. 2. and 11 H. 7. 4. 7 H. 7. 11 H. 7. But put the case a little further that in the Sessions Court of the Sewers A. B. is amerced for Non-payment of his Sesse towards the repairs of a work of Sewers and in this case I am of opinion that the proper goods of A. B. are to be distrained for this Amerciament and not the goods of a stranger going on his grounds charged to the said assess because this Amerciament is a collateral charge which falls on the person of the offendor who was to pay the Assels and doth not in any sort charge the grounds and this opinion hath warrant from the Case in 41 Ed. 3. fol. 26. Br. Leet 4. for there A. B. was amerced in a 41 Ed. 3. Court of Leet for receiving and keeping one in his house which was not sworn to the King in which Case it was holden that no goods could be distrained for this Amerciament but only the proper goods of the party amerced although the goods of others were Levant and Couchant on his ground And
further in proof of my said opinion the Case of the Lord Cromwel in 15 El. in Dier fol. 322. doth come fully thereto which is That a Replevin in an Avowry was made for a pain and forfeiture of Ten shillings due for the breach of a By-law Contra ordinem Curiae and alleaged to make By-laws within the Manor by the Custom thereof In which Case it is apparant that the proper goods of the party are to be distrained therefore and not the goods of a Stranger Levant and Couchant on the grounds And in the 47 Ed. 3. fol. 12. the Prior of Tindals Case 47 Ed. 3. where the Prior was amerced and another mans goods were taken and distrained on the grounds of the Prior for the said Amerciament and the Distress was not well taken and so my opinion may be conceived that for an assess the goods of a Stranger may be distrained on the grounds charged but may not there be taken for a Fine or Amerciament which be collateral duties and attends upon the person and do not charge the Soil This discourse being thus ended I shall now enter into a matter of greater moment and yet because these matters be frequent in businesses of the Sewers that which I shall here pretermit I will in some other place more fully discourse of Goods sold THe further matter of this point will rest upon this whether goods distrained and taken for a Sess and Rate of Sewers may be sold or not which point hath been oftner practised then the Law truly decided But before I shall touch upon the main I will make an Ingresse to treat of such matters whereby the property of a mans goods may be altered without his consent And first at the Common Law if a mans goods be wrecked waived or taken as strays or sold in Market overt the property may be altered Secondly by Custom as in London upon a Foraign attachment goods may be attached and sold to another and in 10 El. Dyer fol. 279. B. a Custom is alleaged to be in York of Foraign goods there bought and sold are seizeable by the Corporation and so in case of a Heriot Custom Thirdly But the King by his Charter cannot take the properties of my goods from me as in the Case of London Cooks Rep. the Case of Austen and Waltham where King Henry the 6. granted to the Corporation of Dyers there by Charter That if upon search they should finde any Clothes died with Logwood that they seized them as forfeit but resolved that this Grant was in that point void Fourthly by a By-law in a Court Leet or Baron the property of my goods cannot be taken from me And fifthly by a Judgement against one at the Common Law although a mans person nor his Lands were lyable thereto yet his goods were These five grounds being first taken I shall now examine the particular of our Case in question touching the Law made by the Commissioners for sale of goods and against this sale many things may be alleaged First this Statute I read on gives a Distresse and a Distresse is but a gage or pledge and cannot be sold for if a Lord distrain his Tenants Cattel for Rent and Services he cannot sell the Distresse And although in 10 11 El. Dier fol. 280. a return irreplevisable was awarded to the Lord or Avowant yet he cannot sell this Distresse nor work them by the opinion of that Book Secondly the Statute of 7 Jac. cap. 20. Rastal Marshes and Fens doth enact that a Commission in the nature of this of ours should be directed to the Bishop of Norwich and others for the Recovery of Fen-grounds where for an assess imposed and for Fines and Amerciaments expresse power is given by that Statute to sell the parties goods which doth refuse to pay Ergo without such an expresse clause a sale of goods could not have been lawful And by the Statute of 1 and 3 Jac. the forfeitures of Alehousekeepers 1 3 Jac. may be levied by sale of their goods by the expresse letter of these Laws and so it may be inferred that our Statute wanting such an express clause to authorize a sale therefore no sale can be But much may be said to the contrary for although in cases of sale the Laws be tender yet it is plain that both our Common Law Customs and Courts of Justice daily use them and are frequent in those sales And we know that a Distresse is properly a pledge to be detained till satisfaction be made and then to be restored and is not to be sold Yet in 3 H. 7. fol. 4. a Distresse taken for an Amerciament 3. H. 7. in a Leet or Law-day may be sold as well in the case where the Subject hath by Charter or Prescription the profits of the said Courts as where the King himself hath them and all the reason which that Book yieldeth for it is because they be the Kings Courts But a Distress taken for an Americament in a Court Baron cannot be sold and in 22 Assiz plac 72. it is said That if one recover a Debt in a Court Baron the goods of the Debtor could not be sold therefore 22 Assiz Yet I have seen always in practise that for Debts and Damages recovered in the County Courts the goods of the Debtors have and be usually sold for them by Levarifacias and in my opinion this is used per totam Angliam and a sale in such a case in a Court Baron by Custom is good and with this agreeth the Book of 7 H. 4. fol. 27. and 21 H. 7. fo 40. in a Leet Court one prescribed and alleaged a Custom to 7 H. 4. 21 H. 7. have of every one which made an affray within his Liberty a certain sum of money and prescribed also to distrain for it and to sell the Distresse and with this agreeth 11 H. 4. 14. and 11 H. 4. fol. 2. A Distresse taken for the Knights Fees of the Parliament was sold Therefore now let us see and examine well by what authority our Officers of Sewers may sell the Distresses taken The words in our Statute which are most powerful in this point be these viz. To depute and assign diligent faithful and true Keepers Bailiffs Surveyors Collectors Expenditors and other Officers for the safety conservation reparation and making repairing reforming and amending of the Premises and every of them and to hear the accompt of the Collectors and other Ministers of and for the receipt and laying out of the money that shall be levied and paid in and about the same Here is the word Levy used and money levied is properly upon a Sale Execution or Forfeiture And the words of our Statute go furthet viz. And to distrain or otherwise to punish the debtors and distrainers of the same by Fines Amerciaments Pains or other like means after their good discretious and no likelier means to these is there any then to make sale of the
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
altering former Laws It appears in Esther that the Laws of the Medes and Persians were so perdurable as they could never be changed And in my opinion there is required as great foresight judgement and as sound discretion and mature deliberation in repealing of old Laws as in making new ones For Quae preter consuetudinem morem major ' fiunt neque placent neque recta videmur I have noted how carefully and constant the Lords of the Parliament House were in the 20 year of H. 3. when they all cried out aloud Nolumus leges Angliae mutare Seeing therefore there ought to be great care in making Laws so must there be great heed taken in repealing of Laws And because Commissioners of Sewers have power herein I will therefore deliver my opinion how far that power will extend And if one note this Branch of the Statute well he shall well perceive the Judicious care taken by the Parliament in penning of it For the words be That the Commissioners of Sewers should have Power and Authority to make constitute and ordain Laws Ordinances and Decrees and the same Laws and Ordinances omitting the word Decrees to alter repeal and make void for a Decree is a Judgement and is Finis operis and a Judgement cannot be reversed without a Writ of Error Neither can a Sentence or a Decree in Chancery be reversed without a Bill of Review neither can the Commissioners of Sewers reverse a Judgement or Decree of Sewers Judiciously pronounced which is a Judgement upon a Tryal betwixt the King and the party or betwixt party and party without a Bill of Reversal for it is truly said Quod naturale est unum quodâ— dissolvi eo ligamine quo ligatum est A Writ of Error lay at the Common Law for to reverse a Judgement given by Commissioners of Sewers when the Commission was in Latine as is set forth in the Register being then one of the special Commissions of Oyer and Terminer but since the Commission was put into the English frame the Writs of Error ceased A Law for sale of Lands ingrossed into parchment and certified into the Kings Court of Chancery with the Kings Royal assent had thereto is not reversable without an Act of Parliament but then the said sale must be made according to the form frame and power of this Statute For put the Case that A. B. holdeth his Lands of I. S. by the payment of Twenty shillings yearly towards the repair of such a Bridge Bank or Wall it fortuneth that A. B. paid the Twenty shillings yearly to his Lord for that purpose who neglecteth to pay it though he be thereto Ordered and Assessed to pay the same to the said repairs by the Commissioners of Sewers the seigniory of Twenty shillings yearly is to be decreed and not the Land for that the fault was in I. S. and not in A. B. the owner of the Land If any persons be by Prescription Custom Tenure Covenant or otherwise bound to repair Walls Banks or other defences of Sewers the Commissioners have not any power by their Commission to repeal alter or make void any of these because these are establisht by the Common Law and Customs of the Realm and not by the power of the Commission of Sewers But their power is to repeal alter or make void Laws and Ordinances made by themselves or by the power of their Commission And so the words of their Commission plainly describe it For thereby they have power to make Laws and Ordinances and the same to repeal alter and make void so they must be the same and no other And herein I end all my Arguments and discourse upon this Statute for I accompt all the rest which remaineth unspoken of not to be worthy of a Readers dialect because I have fully handled all the materials of this worthy Law And therefore I may justly â—â—â—clude my Argument with this That Finitum est hoc opus â— consumatum FINIS