VVHen I look upon you, & con­sider the persons, 1. To whom I am to speak: Some of you Men grown Gray in this imployment, and that know as much what belongs to it, as I can tell you: Or when I look upon others, 2. Before whom I am to speak, Gen­tlemen much better able to doe it than my self, I cannot but think some such thing may befall Me, as did that Philo­sopher of Ephesus, who most presump­tuously undertook to instruct Hannibal in the Discipline of War: A Self-con­ceited man, bred up another way, and in studies of another Nature; yet out of 1. Arrogancy, and 2. Ignorance, would give Hannibal a Discipline in his own Art, wherein he was so famously eminent (I would spare it, without 1. Envy, and 2. Offence, To the 1. Li­ving, [Page 2] and the 2. Dead) That for Va­lour and Wisdom, he was to be reckon­ed One, even amongst the Greatest Ge­nerals that ever appeared in the Head of an Army: And what I have to speak to you here, may prove as that he did there, not only Needless, but Absurd and ridiculous.

However, yet (under Favour of those that hear it) Give me leave, though not in a way, To 1. Instruct you in your Duty, as if I thought you Ignorant: No, nor yet To 2. Direct you, as if I thought you Unskilful, or Unexperienced; But only To 3. Re­mind, or Remember you of it.

You are here three several Juries, of 1. Surveigh, and 2. Inquiry: And for order and method I shall reduce all that I have to say to you, to Three general heads. First, I shall declare to you What you are to View, in order to your Surveigh. Secondly, What you are to Present in order to your Inquiry: And Thirdly, How you are to Present, so as to perfect both. These three, I con­ceive comprehend your whole Duty. The First tells you what you are to tra­vel [Page 3] and ride about, when you are gone from hence. The Second tells you what you are to do, when you come hither again. The Third tells you in what man­ner you are to do it; of these with as much clearness and shortness as I may.

1. Wha [...] to View For the First, what you are to View. I do take it, they are all such things as are properly within the defence of the Laws of Sewers, and do concern, ei­ther 1. Navigation, or 2. Drayning, or 3. common Land-passage in such Ma­ritime Countries as this is.

Navi­gation. First then, One great end of your View and Enquiry, is to preserve Na­vigation; that is, according to the com­mon use of the Word in matters of Sew­ers, all manner of passage by water; and this doth not only 1. employ the Merchant, and many more under him, and make him to abound; but it also 2. enriches the Common Treasury by Cu­stomes, and 3. upholds the general Trade and Traffique of the whole Nati­on; and is in a special manner advanta­gious to such Countries as this, that are adjacent to the Sea: for hereby, as you may Export many of your home-grow­ing [Page 4] Commodities, and sell them abroad at the dearest Rates, So such as are Im­ported, and brought in 1. from forein Countries, or 2. from other Countries within your own, you buy them with the 1. first, and at the 2. cheapest; and other Upland-places cannot have them, but 1. from you, or 2. after you.

Now the Commission of Sewers, in a matter of such great import as this of Navigation, is very exact and careful, 1. First, In respect of all kinds of Na­vigation, 1. Whether it be with Ves­sels Of Ships, Boats, Ballin­gers.of the greatest bulk, as Ships. 2. Or with Vessels of the smallest kind, as Boats. 3. Or with Vessels of a middle nature, as Ballingers; which many take to signifie certain kinds of Vessels, immediately employed about the lading or unloading of Ships; in some of the greatest Rivers of this Nation (as I am informed) there be some of the greater sort of Vessels, of this very name, and for this very use; and are fresh-water Vessels, of the greatest bulk, framed with Oares, and without Sails: I shall neither trouble my self, nor you, a­bout the Original of the Word: There [Page 5] be, would fetch it farr enough, from an Hebrew Radix; but if I should follow [...] Minsius in this his Opinion, I should have a farther trouble to tell you who brought it hither; therefore I shall on­ly, and plainly tell you, in the Com­mission, I take it to signifie the same with your Naviculae Actuariae amongst the Latines, such as be the Ballingers, or Balasters, properly so called, we have already spoken of: As also your Barges, and your Keels, and all other kinds of your greater fresh-water Ves­sels, carrying Anchors in them; by the one they are distinguished from Ships, by the other from Boats.

In Ri­vers, Streams, and other Floods. 2. Secondly, In this Point of Navi­gation the Commission is very exact, in respect of all Waters that be in any man­ner Navigable; I mean in case they be so 1. of common right, (which being once spoken, I would have it under­stood in every part of my Discourse; for the Commission defends not any Na­vigation, nor any water-course, but the common water-course, and the common Navigation only) and then, whether it be in greater or in lesser Wa­ters, [Page 6] in smoother or in rougher Cur­rents; that is, in 1. Rivers, 2. Streams, or 3. other Floods, doubtless it is to be preserved; and the Commission doth in specie, and in particular, nominate eve­ry one of them.

Drayn­ing. The second sort of things you are to view, are such as concern Drayning, and these be such as directly preserve your Country, and do immediately concern the very Being, both 1. of the Country, and 2. of you in it. Now these are of two sorts, First, such as preserve the Country from being Drowned, by keeping out the Waters. Secondly, such as make the Country dry, by issuing out the Waters.

Those Defences that preserve the Country from being Drowned, by keep­ing out the Waters, the principal of them; and such as are expresly named Walls, and Banks.in the Commission, are 1. your Walls, and 2. your Banks▪ I shall not be over­curious in the distinguishing of them: such as distinguish them in regard of the Materialls whereof they consist, and will have a Bank to be only of Earth, and a Wall only of Stone, will hardly [Page 7] [...]erive our English Wall, from the La­ine Vallum; for, that that was usually of Earth, is out of all question. For my part, I conceive the difference to be [...]ather in the manner of the Defence: So that if they be main Defences, both for height, and strength, and security; if they do, Vallo munire, be of the like de­fence to the Country, that an Intrench­ment is to an Army; I doe take them to be Walls, though made of Earth; such as your Sea-walls are, both in Fact, and in Name. 2. And all smaller, and weak­er Defences, I take to be Banks.

Now your Walls, or your Banks, (it matters not much by which of these Names you usually call them, for they are both expresly in the Commission) are of three several sorts, or kinds. 1. Rivers 2. Banks.First, such as defend against the Rivers, and your other greater Sewers, and the fresh-waters therein Descending; and these have a two-fold benefit. 1. The one, in that they make a stream, and inchanel the waters, which makes ve­ry much to Navigation. 2. The other, in that they secure the Country, and preserve the same from Inundation, [Page 8] which certainly makes as much to drain­ing: and Gent. such may be the violence of some of these Rivers, and that I may speak with relation to our own particu­lar concernments, that of Welland is known to be such, that if it be not kept within Banks, and the Banks thereof strongly defended, some parts of this Country will be in yearly danger of being drowned, either Northernly, as far as Boston, or Southernly, as far as Sutton, or Easternly, upon the Towns that suffered under it this last VVinter; even as the VVinds shall chance to drive the VVaters, and the Fens. And therefore I would have you take so far notice of your danger, as now, while you may, to prevent it; and, by securing of these River-Banks, to secure your Country.

Fen-Banks. 2. Secondly, other Banks there be that are main Defences against the Fens, and that vast Body of waters, usually lying upon that Level: These you com­monly call your outring Banks, and they have always been esteemed as the main defence and security of your several Townships: Some of you, of some of [Page 9] these Juries, I am sure have reason to look upon them as such; and with what Eyes and Hearts you lately beheld and felt your own danger and damage, and it might have been your utter Destru­ction, even from hence, many of you cannot but remember now; And this I am sure of, Wets and Winds may come again.

3. Thirdly, other Banks there be, that are main defences against the Sea, that raging Enemy: But because by the Sea-Banks.imbanking of the Marshes, there is at present, a handsome anticipation as to you in this Country, and other per­sons, and their Estates, lie between you and the charge, and before you and the danger, so that the Sea cannot much hurt you, before it destroy them: Therefore I shall not speak much to you about these Banks, only I would have you see to them so far, that they be not 1. weakned, or 2. demolished, nor for any private Mans pleasure, profit or command whatsoever, 3. cut through, or 4. in any other manner made inde­fensable. These Banks, you know, are the common known defence of the [Page 10] whole Country; and for the upholdin of the other Marsh-Banks, there is [...] farther Obligation, than private Inte­rest, and the meer will of the Owne [...] And truly considering what great Bat­teries the Sea, of late years, hath mad upon them, & what strong assaults upo [...] the Country, I would not have the com­mon defence of the whole Country, al­together neglected, and regardlesly lef upon other mens scores, only because they are a little more immediately con­cerned in the danger, and are sure to be drowned before us: And so I have done with such defences as preserve the Country from being drowned, by keep­ing out the waters.

Water-Courses. Secondly, Other things there be within the Defence of the Commission of Sewars, that make the Country dry, by issuing out the waters; and these are your VVater-gangs, or your common water-courses of all sorts, from the ve­ry Gutter, to the River; To give you particular notice of such as are particu­larly named in the Commission: There is,

Gutters. 1. First your Gutter, which is the [Page 11] mallest Chanel of water; And I have [...]en in some Up-land Towns, where Gutters, and a common Ditch, or in o­hers, a Brook, have been the only ewars, and where they alone have een sufficient to avoid the whole mis­hief of that water: But where there ave been no other Sewars but these, hey have seldom come under the dire­tion of a Commission, the Court Leets ave been sufficient, and have served he turn to order them.

Ditches. 2. Secondly, Ditches, The Latines all them Fossae, a Fodiendo, as being made with the Spade; For, Fossa est re­ceptaculum Aquae manu facta, saith Ul­ [...]ian, and for any Grammarians pleasure [...] dare not alter it; but he hath said so before me, and I must crave leave to use his words, and say so after him.

And though these Ditches consist of larger chanels than Gutters, yet I take them to have the smallest current of wa­ters: Hence the Learned Reader, upon the Statute of Sewars, calls them a cur­rent of water, in infimo gradu, in the lowest degree imaginable.

Your Ditches in this Country, are, [Page 12] or ought I know, of private use an charge, and are not under the Directio [...] of the Commission, further than, 1. A they may relate to some general or com­mon Good, or 2. may be the cause o some general or common Mischief; bu in the Countries above us there are some antient remains of these common Ditches, though for the present they are most of them dry and deserted; and considering the little use that now i made of them, I have heard some won­der, to what purpose they were at first devised: For my own part, I doubt not, but that in antienter times they have been of prime use, even in this very respect of Drayning; but I take it since such Countries as this, that lye between the Sea and them, have been gained, and made usefull, they have been left as useless; and so much concerning them. Other water-courses there be, that have both considerable 1. Chanells, and 2. Currents, and are very beneficious and usefull to you in matter of Drayning, and they follow in the Commission, where

Trenches 3. Thirdly, You have Trenches; [Page 13] which for distinction from the rest, I ake to be currents of water, trenched eep, and sunk within soyl; such as ave either 1. no banks raised above oyl, or 2. very small ones, and those ather raised by the cleansing and purg­ng of them, to give a swifter and rea­ [...]ier passage to the waters, than to de­ [...]end against them: These are those your Latines properly call Incilia, passages for water cut deep into the [...]oyl; and they are the petty convey­ances of any downfall of waters into your main Sewars.

Sewars. 4. Fourthly, Sewars; and they are to be accounted amongst your grand Issuers of water; from whence I con­ceive they carry their name (Sewars, quasi Issuers.) I shall take his opinion, who delivers them to be Currents of water, kept in on both sides with banks; and in some sense, they may be called, a certain kind of a little or small River. But as for the derivation of the word Sewar, from two of our English words, Sea and Were, or as others will have it, Sea and Ward, give me leave, now I have mentioned [Page 14] it, to leave it to your judgements. However this word, Sewar, is very fa­mous amongst us, both for giving the Title to the Commission of Sewars it self, and for being the ordinary name of most of your common Water-courses, for Drayning in the Country; and therefore I presume, there are none of you, of these Juries, but both know 1. what your Sewars signifie, and also in particular 2. what they are; and of a thing so generally known, and of such general use, I shall use no more words to you, but that you have a special re­gard and care of them.

And thus much of your Water-cour­ses, which relate only to Drayning, and have no living Fountains from whence they are fed, but are only Drains, and serve to discharge and carry off the surplusage of other waters; such other waters I mean, as either 1. have their immediate downfall from the Heavens amongst us, 2. or descend from Upland Countries to us, 3. or are the Over-stowings of Rivers and greater Streams upon us. Four kinds there are of them, as you have heard; two of [Page 15] them of private and particular charge and benefit only, as your 1. Gutters, and 2. your Ditches: other two of com­mon and general charge and use, as 3. your Trenches, and 4. your Sewers. Now will you see, how they stand in order, and relate one to another? Take it briefly thus. Your 1. Gulters, they bring the waters from off your Grounds to your Ditches. 2. Your Ditches, they bring the waters down to your Tren­ches. 3. Your Trenches, they carry them out to your Sewers. And 4. your Sewers, they carry them away to the Sea. And of them thus much.

The remaining Water-Courses, men­tioned in the Commission, are such as relate both to Drayning, and also to Navigation, and that in an Eminent Manner: And they are your Streams, and your Rivers.

Streams. 5. Fifthly, Streams, I do take for such Currents of water, as have both a 1 Cer­tain, and a 2 Constant Source from whence they Flow. You may make two sorts of them. First, such as do conveigh the water from the Fountain to the Ri­ver: some of these, which do descend [Page 16] from greater Springs, are Navigable from the very head. As to give you an example of one that lyes within the charge of one of these Juries; and with­all, to charge them, take special notice of it. Burne- [...]i is such a Stream, and though this, as all other Streams of this nature, be Navigable but with Boats, that is with Vessels of the smallest size only, yet as I formerly told you, such Navigation is to be preserved. Howe­ver these Streams are a great advance­ment to all Navigation; whereupon, the Author of the Readings upon the Sta­tute of Sewars, no less truly than elo­quently, calls the Springs from whence they Flow, the very Vital Spirits of all the Rivers in the Land. Secondly, other Streams there be, which have been de­vised to make a Navigable passage from one great River to another, call them Leams or Streams, it matters not much, as long as you signifie the same thing with me; and these very prudently have been devised, as helps to inlarge Navigation, and so farr only to be suf­fered, as they inlarge it, and better it: For where, 1. they either make Naviga­tion [Page 17] worse, by diverting the water, or 2. indanger the Country, by overflow­ing the Levell, they are, as I shall here­after tell you, within the power and view of the Commission of Sewars in­deed, but as impediments and annoy­ances, to be reformed, or removed, and n that case, are rather to be esteemed, Waters out of Course, than Water-Courses. And thus much concerning Streams, which I take to be sufficiently distinguished from all the former Wa­er-Courses, in that they have a cer­ain, and a constant Fountain or Source, from whence they Flow, which the o­her want.

Rivers. 6. The Sixth Water-Course named in he Commission, is a River, and this pro­perly is made up of Streams, and is no other thing than many Streams incor­ [...]orate into one, and so becomes Navi­able to the Sea. Besides, that Rivers re greater waters than Streams, a River nd a Stream, differ also in Exitu, that [...], in their Outfall for the Outfall of a tream is commonly a River, but the ommon Outfall of a River is the Sea. Many are the benefits and advantages of [Page 18] a River, even such as be of private Con­cernment, wherein certainly, many par­ticular Persons may have good Right and Interest; and whereof, such as in truth have so, further than as at some times they may cross the main end of the Commission of Sewers, ought not to be debarr'd the Injoyment, or limited in the Use. But I shall say no more of these, a being not comprised within the Com­mission; only I shall tell you, that suc there are, and that the Commission o Sewers was not made, nor intended, t Destroy them, but only to Regulate them so as that particular Convenienci [...] might not become general Mischief But to come home to the Commission from whence? and whither? Is it th your Ships sayl? but 1. From, and 2. T your Ports, & your Havens? and they a nothing else but secure Harbors up [...] your Rivers. 1. Your Havens, Harbors f security only. 2. Your Ports▪ (as the wo is usually here taken amongst us in o English language) besides that, places 1. Privilege, and 2. Defence too; wh [...] is it, that your Boats, and Barges, [...] Balingers, and other Vessels, have th [Page 19] common passage? Is it not upon your Rivers? These two for Navigation; but give me leave to ask you a third Questi­on, What is it that doth conduce so much to matter of Drayning, as your Rivers doe? Other Drayns you have, I confess; But your Rivers, 1. They are the grand conveyers of the water from the Fountain to the Sea, which they ought to bear down, 1. in their own Chanels, 2. and other adjacent receptacles, till they discharge it there: And so they carry away the mischief, 1. of Springs wholly, and 2. of Land-wa­ters also, as to the greatest part of it.

Again, 2. The Rivers they keep o­pen a Chanel or vent into the Sea, and so give an Outfall, both, 1. to their own waters, and 2. to all your other Drains too; without which, your Drains all of them would be useless; For you had as good have no Drain, as they to have no Outfall: So that I may well say, without Rivers, there would be neither 1. Navigation, nor 2. Draining to any purpose. Therefore, Gentlemen, It concerns you, to take special notice of your Rivers. There are some, four as [Page 20] I take it, in the whole County, that be Navigable, and two of them are now under your view, the one of Welland▪ the other of Gleane: The one of these▪ namely that of Welland, tis said, must drown all Holland, Est adhuc in Fatis, and I pray God we in this careless Age see it not in Facto: An old saying it is, and loath I would be, that we in our dayes should conveigh the sad remem­brance of the Truth of it to following Generations.

Floods. 7. Besides Rivers, there is in the Commission mention made of Floods; which doubtless, are 1. either Waters, 2. or Water-courses; and for my part, I take them to be nothing else but your greater Rivers▪ Both Flood and River, as to the words, have their derivation a Fluendo, the one in Greek, the other in Latine; and till I be better instruct­ed, I shall hold with the Civilians, That, Flumen à Rivo discernendum est, vel Magnitudine, vel circum-colentium existimatione, That is, Floods are no­thing else but your greatest Rivers, or those Rivers are Floods which have been accustomedly so called.

[Page 21] And falling here upon that thing we call common estimation, give me leave to tell you, That it may be, some words that I have hitherto explaned, and some others that I shall have occasion to speak hereafter, may not agree altoge­ther with that usual and accustomed [...]ense you have of them; and no won­der, for I have endeavoured to diffe­ [...]ence words, as they are used in the Commission, and not as they are used in [...]our common Language. Certain it is, [...]. That every word is not throughly [...]eighed before it be spoken, 2. Nei­her are any words used in full and exact Propriety, So that the same word must [...]f necessity have different significations; ometimes in a larger, sometimes in a [...]ricter sense; even accordingly, as it is sed. Now in this ambiguity of words, think I have good reason to follow the Commission, and to conceive a rational [...]nse and difference of them: 1. as they [...]e, or 2. in likelyhood are there used, [...]ther than to follow common Lan­ [...]age, wherein I am sure there is no ord whatsoever, but what is common­abused. And this is all I shall reply [Page 22] to any who shall have a mind to play the Critick upon what I have spoken.

And thus I have done with your VVater-courses, and have brought down the waters, 1. from the Springs, by your Sreams and your Rivers to the Sea, and 2. from off your Lands, by your Drains to their Out-fall, where I find an Engine 1. of excellent, and 2. approved use in Draining, and finding it named in the Commission, I cannot handsomely overpass it, without taking some notice of it, and that is a Goat, or as you more commonly call it, a Sluce.

Goats. Hitherto we have spoken of VVater­courses, and that is, of water, in de­cursu, of water, in its descent, or cur­rent only: I have but one word more to speak of the water now, and that is, of the water in exitu, in its Out-fall. Your Drains they indeed bring the waters down, but your Goats they let them out; and are Instruments of Draining, so Artificially devised, that during the Ebbing of the Sea, they are always open to let out the Land-waters, and during the Flowing thereof they are always shut, to keep out the Salt and the Sea-waters.

[Page 23] Flood­gates. Of like use, with your Goats, and uces, are your Flood-gates; and as I [...]nceive, so far as they are beneficial to [...]u in matter of Draining, are to be [...]teemed parts of them, or at most, and here they are sole, but imperfect mo­els and parcels of them. For if they e impediments to Navigation, or [...]raining, they are then either to be e­eemed as Locks, or in a more peculiar [...]anner, belong to the Water-Miller, f which more hereafter. And so I ave done with all those things you are o view, which concerns, 1. either Na­igation, 2. or Draining.

Land-passage. A third sort of things you are to view oo, which are within the defence of he Commission of Sewers, and they oncern common Land-passage, in such Maritime Countries as this is: These are such as maintain a Way amongst us; and that, 1. either upon the Land, as your Calsey, or 2. over the Waters, as your Bridges; without both which this Coun­try would be altogether unpassable, and would be a place both Invius, & Avius, without any passage, 1. in it, or 2. to it; cut off from the Up-land Countries [Page 24] above us, and cut in pieces amongst ou [...] ­selves. And as your works of Sewars, 1. which relate to Draining, make the Country habitable, 2. and Navigation makes you maintain a Traffique, o [...] Trade, with other Countries, 3. so your Bridges, and your Calseys, these make an intercourse, and a way for Trade a­mongst your selves within your own Country here at home.

But before I proceed further, give me leave to give you some account of the Method I now proceed in; It may be thought, and for mine own part, I my self have had thoughts that way; that although it be a thing altogether unde­niable, that the words Pontes & Calce­ta, that is, Bridges and Calseys, be ex­presly contained in all the Commissions of Sewars that ever were yet in use, ei­ther at Common-Law, or by Statute-Law; yet that the Commissioners of Sewars had no further to meddle about them, than as things relating to Naviga­tion, or Draining: Well let this be granted, yet I take it to be a thing un­deniable too, that they do conduce to these ends; not only, 1. by defend­ing [Page 25] against the Waters, but also 2. by preserving a passage over the Waters; and so preveuting Fords, and such like obstructive and inconvenient Passages within them: and this benefit of com­mon Land-Passage being the main end hese Works were principally made and contrived for, I shall crave leave to propound them to you accordingly.—And yet further, in as antient Escripts of Sewars as ever came to my view, nd are at this hour preserved [...]mongst [...]he Records of this Court, I do find, hat Calseys and Bridges have in the exe­ [...]ution of the Commission been taken [...]otice of as common Land-Passages: These antient Inquisitions I have seen, he one without Date, the other taken Nono Edwardi Secundi, and the third Quarto Henrici Quinti. 1. VVherein oncerning Calseys I do find, that Garwick Calsey, in the Parts of Keste­ [...]en, was presented u [...]on Great Hale, Town there, and the Abbot of Bard­y to be repaired and sustained, pro Hominibus Peditibus, & Equitibus, hat is, both for Foot-Passage, and for Horse-Passage. And I also find, Brigge-Dike [Page 26] Calsey Presented, as Regia strata pro quibuscunque Legeis Domini Regis de super transitur is de Kesteven usque ad par­tes de Hollande: And the Decayes thereo to be, in Magnum periculum plurimo­rum de Populo Domini Regis super dict­um calcetum transeuntium: And this I take to be full enough, and sufficiently to prove, that as Calseys of them­selves are common Land-Passages, so that heretofore, the Commissioners of Sewers have taken Cognizance of them as such. 2. And as for Bridges, I find them Presented in the said Inquisitions▪ not only in respect of the 1. Passage of the VVater, 2. or of Boats under them; but also in respect 3. of Land-Passage over them. Thus Burton Bridge, cum Calcetis, is Presented to be, Alta via, & Regia strata; and in such manner to be repaired, it a quod Homines Pedites & Equites securè omni tempore possint transire, so as to be a safe Passage for Horse and Foot. And other Bridges are therein Presented, to be repaired, not only to such a breadth and depth, as 1. shall not minuere Latitudinem Sewe­rarum, pro transitu aquae celerius haben­da; [Page 27] but also shall be 2. pro sufficienti tran­sitis Carectarum & Quadrigarum, a suffici­ent Passage for Horse, Wagon, and Cart.—And all this was done by virtue of the Commission of Sewers as it stood at the Common Law; and no man can say, but that the Extent of the Com­mission is much larger, and the Power of the Commissioners much greater now than then it was, as having received seve­ral Additions and Enlargements: but no Restraint in any thing, saving only the Commission is now to be executed by six Commissioners, when as then two would have served; nay, which I more wonder at, in the antient Inquisition, taken Nono Edwardi secundi, I find, the want of a Ferry-Boat at Cathmouth, or rather Wathmouth, Presented upon the Prior of Haverholme; and that, Debet invenire ad ducendum Homines Pe­dites ultra aquam, tam nocti, quam diei.—So then, certain it is, that there are Presidents of Sewers, to warrant such Proceedings; the only Question is, How far the Commission of Sewers will warrant such Precedents; the Resolution whereof I shall willingly [Page 28] leave to others: For my own part, I know not how to slight, much less out of any conceit of mine own, to censure and condemn Precedents of such great Antiquity; And having spoken this to clear the Method I am to proceed in, I now proceed on.

Calseys. 1. First then, concerning your Cal­seys, they are common Passage wayes upon the Land, made of Stone, Sand, or Gravel: and they have their Name A Calce; the usual Stone it should seem, whereof most Calseys have for­merly been made.—These Calseys we find expresly within the Defence of the Commission of Sewers, as now it is, and was Enacted in Henry the 8 ths time. But look above that, to the First Sta­tute Commission of Sewers in Henry the 6 ths time, and there you find them likewise. Look higher above that, to to the Commission of Sewers as it stood at the Common Law▪ and there you shall find them expresly named too. Enough I think to prove that the Com­missioners of Sewers have something to do with some kind of Calseys; and that, as they are things different both [Page 29] om Walls and Bridges. And was there [...] other Provision for the maintaining [...] Calseys amongst us, and in such Mari­ [...]e, and Fenny, and Moorish Coun­ [...]es as this is, devoid of Stone, and ch like Materials, more than the or­nary Provision for the maintaining of e High-wayes, (I mean than the or­nary Statutes?) they, all of them, you experimentally know it) would ever maintain any one Calsey amongst [...]—But I will not now undertake, to ll you in particular, what Calseys are [...]thin the warrantable Defence of the ommission of Sewers; but having re­ [...]ion to what I have formerly spoken, all only tell you, that all such Cal­ [...]s as are either 1. a Defence, or eer, or Boundary against the Waters any manner whatsoever; 2. Or are [...]ject to Decay by the continual Beat d Rage of the Waters; 3. And have retofore been under the View of the [...]mmission, and here Presented, are t to be excluded your View and re.

Bridges. 2. Secondly, Bridges. And they [...] your common Passage-wayes over [Page 30] your Rivers, and your other Drayns and Water-courses. And doubtless, [...] Bridges that have constant Currents [...] VVater under them, are within t [...] reach of this Commission, and may [...] virtue thereof be upheld and repaire [...] 1. Not only those Bridges that be [...] publique use, and for common passag [...] 2. but even private and particular Me [...] Bridges too, if they be of publique B [...] ­nefit: In like manner, as private Me [...] Bridges may be pulled down, if th [...] be fouud to be of publique Dam­mage.

And thus I have done with the Fi [...] Part of my Discourse, and have, a [...] ­cording to my weak Abilities, told yo [...] VVhat those Things are you ought [...] View.—And to bring them all into [...] short Recapitulation, they concern [...] either Land-Passage, 2. or VVat [...] Passage, 3. or the Passage of the VV [...] ­ter it self. So 1. as it may be kept wit in the bounds allotted to it, 2. and t [...] Country defended against it.

But there is one thing more I [...] not so much to speak to you of it, as speak against you for it. You are here [Page 31] so many of every Jury, and it may be for show ride together a day or two up­on your View, and so post it over; but your main Information, whereup­on you ground your Presentments, you take it altogether upon trust, from one or two such as be impannelled amongst you of every Town; this is to praecipi­tate your business: and all Praecipitati­ons are commonly accompanied with Over-sights, and they cause Mistakes and Errours. Shall I tell you the Mis­chief of this? I have observed it; 1. Every Town would have their Assess­ment as small as might be, 2. and every Officer would have his years work as easie as might be; and so, when these are the Men that give the only Infor­mation to the Court, and are in a man­ner wholly intrusted with the View, and with the Presentment, never any thing to Purpose hath been, nor likely [...]s to be Presented: But because some­thing needs must, yet that, but 1. for Formality, and 2. Works of meer Ne­cessity, and 3. as little as may be; so that let the Commissioners 1. Offer, or 2. Design, what they 1. may, or 2. [Page 32] can; yet Jurors will 1. do, and 2. find no more, than 1. what, and 2. as they list. And no wonder, when Views and Presentments have been so slenderly made, if that good have not come to the Country, by the Commission, that some may have expected.—For a full Remedy, I could wish that others, (the Commissioners I mean) who chiefly indeed ought to do it, would joyn with you in the View too▪ and so make 1. the View chiefly their Acts, as properly it ought to be: and the En­quiry yours. But because that perhaps might be a thing of two great a Charge and Inconveniency,—for the present, give me leave to tell you, it is your Duty, all of each Jury, to make your View together; and upon your View, to take full Information together, of what you shall think fit to Present, and not to leave that which is the main End you View for, to one or two of a Town only, and they likely enough to be partial in the business. And thus much 1. for what you are to View, and 2. for you that are to View it, that is, all of you together, that be of each several Jury.

[Page 33] 2. What to Present. And so I come to the Second Part of my Discourse, to tell you, What you are to Present. And I do take it, they are all Transgressions against the Lawes of Sewers, of what kind soever they be. Now these, as all other Transgressions, are either 1. Delicta, or 2. Commissa; I can English, nor distinguish them no better, than in your usual terms, 1. Defaults, or 2. Offences: 1. Defaults, when that is not done that ought; 2. Offences, when that is done that ought not.

Defaults, they are Amerceable on­ly; and although a direct Act of the Will may be upon a bare Omission, and a Man may make his Default wilfull; yet because Defaults may also be of bare Neglect, Sine Pravâ Dispositione, of Indisposition only, without an evil Disposition, therefore they are left in Misericordia, to be set in the Mercy of you that are Jurors.

Offences, are most of them Fineable, as being alwayes willingly done; nay, many times, Vi, & Armis, with Force, and in full Contempt of the Authority that should Regulate them; [Page 34] and therefore, as being Crimes, and of a higher Nature, are subject to a higher Penalty, and to the Censure, and Dis­cretion of the Court.

And truly Gentlemen, all these Defaults and Offences you are to View too, o­therwise, how can you truly Inform the Court what they are?—But 1. such things as be within the Defence of the Commission of Sewers, you are to View, so as to have them Preserved and Main­tained: 2. these Defaults and Offences that be within the Correction of the Commission of Sewers, you are to View, so as to have them Remedied o [...] Removed; so that the former are pro­perly the subject of your View, these of your Presentment.

Defaults But to goe forward. I have hereto­fore told you, What things you are to View; now, without repeating any thing that I have formerly spoken, I am briefly to tell you, What Defaults in them you are to Present.

In Goats, or Flood­gates; in Calseys, & Bridges. 1. First, Your 1. Goats, or Sluces or Flood-gates; and 2. your Calseys and 3. your Bridges; they are to be 1 Upheld, and 2. Repaired: so that in [Page 35] case 1. they be 1. Lacerate, or 2. Bro­ken, and want 1. Repairing, 2. or be Dirupt, that is, 1. Decayed, or 2. Ruined, and require 2. making of new, you are to make Presentment of them accordingly.

In Water-courses. 2. Secondly, Your Water-courses, all the sorts of them, whether they be for 1. Navigation, 2. or Drayning, 3. or both, are, to pursue the words of the Commission, to be 1. Cleansed, and 2. Purged; and their Chanels main­tained in their antient 1. Bredths, and 2. Depths: so that in case they, or any part of them, 1. be Foul, and want 1. Roading, 2. Hooking, or 3. other Cleansing; 2. or be Landed up and want 1. Ditching, or 2. Opening, you are to make your Presentment ac­cordingly.

In Walls, and Banks. 3. Thirdly, and Lastly, Your Walls, and your Banks, those main Works of Sewers, that defend either 1. the whole Country, or 2. your several Town­ships, they are to be of 1. Heighth, 2. Bredth, and 3. Strength sufficient to do it; so that in case you find them 1. Broken, with Gools in them, 2. or [Page 36] otherwise, weak and deficient, for want of 1. Flagging, 2. Piling, or 3. Skirting; 3. or any wayes insufficient, for want of 1. Heightening, or 2. Strengthening, you are to make parti­cular Presentment, according as the Default shall be.—And truly Gentle­men, In such Works as these, that are the immediate Defence of your Coun­try, and Townships, you are to be care­full in your View and Enquiry; and to see, First, Whether they be of their accustomed Heighth and Strength; and if they be not, such Defaults to Present upon the Persons that ought to maintain them so. Secondly, Whether they be of sufficient Heighth and Strength, for suppose they be of their usual and ac­customed Heights, and upon some great Alterations, either in respect of the Sea it self, or of other great Rivers or Streams, (whether they be 1. out of the Power, or 2. beyond the Authority of the Commissioners of Sewers, to help or redress) this will not defend the Country. I confess in this case there are no Persons in default, that you can Pre­sent, unless some, that in some few [Page 37] particular places may have covenanted for the Drayning of you: And such as these, if there be any such, are to do their Covenant: for in respect of them, not the accustomed greatness of their works, but the performance of the work they have undertaken, is to be looked at. But suppose, as to most of your defensive Banks, there be none such; in this case certainly, though there be no Default, yet a Defect there is, and you ought to certifie the Commissioners of it, and how much the said Banks ought of New to be exalted, to make sufficient De­fence: And in such a dangerous Necessi­ty, the Commissioners (as I conceive) ought not to sit still, & see the Country Drowned: you would all say, they were in Default, if they should do so; but they may, and ought to impose a new Charge for the doing of it upon the Le­vel; the Persons there I mean, that be concerned in the hurt or loss: 'Tis clear, the Commissioners may Impose such a Charge by way of Reparations, for the making up of a Bank wherein was no Default, post Damnum Acceptum, in case of a sudden Breach; as upon Extra­ordinary [Page 38] Floods and Winds, such Breaches often do happen; and if they might not Impose the like by way of Prevention, ad Damnum Evitandum, the Commission would be deficient in its main End, and would not sufficient­ly provide for the Preservation of the Country against the Waters; which, though it be not the only, yet it is the chief thing the Commission was made for; and by express words thereof, Power is given to make Ordinances and Provisions, as well for safeguard and conservation, as for redress.—And so much in particular concerning the De­faults you are to Present.

Offnces in things of Besides those Defaults, Secondly, Offences there be too, that you are to Enquire of, and Present, and they par­ticularly mentioned in the Commission. 1. Some wbereof are in things of gene­ral use, and at least are to be Reform­ed; 2. Others are in things of 1. gene­ral, or 2. particular abuse, and may be Destroyed.

1. Gene­ral Use, as, 1. First, To begin with those Of­fences that be in things of general use, they are either 1. in Bridges, or 2. in [Page 39] [...]reams, or 3. in Goats. The things [...]emselves are of general use, and we [...]ve spoken of them before, as they be [...]ithin the Defence of the Commission [...] Sewers; and certainly so they are all [...] them, for the Country cannot want [...]em: but we find them named over a­ [...]in in the Commission, or in the Sta­ [...]te that gives Authority to the Com­ [...]ission, and therein ranked and sorted [...]ongst such things as be ad Nocumen­ [...]m, and may be mischievous, and in [...]at sense speak we of them now, but ery briefly.

Bridges. 1. First, Bridges. And I do take it, [...]ey may be Annoyances in respect of [...]e undue contrivance of them; for in [...]se you shall find any Bridges 1. so [...]rait, that they hinder and check the [...]urrent of the Waters; 2. or so Nar­ [...]w, 3. or so Low, that they 1. hin­ [...]r Navigation, or 2. make it danger­ [...]s, you are to make Presentment of [...]em, that they may be reformed and [...]rrected: No reason you should make [...]e Passage more, or more easie by and, to make a Water-passage less, or [...]ss safe.

[Page 40] Streams. 2. Secondly, Streams. These we fi [...] likewise mentioned over again among those things that are to be reformed; an [...] surely so they ought, in case you find a­ny made of new, that 1. either dive [...] the Waters, to the destruction of Na­vigation; 2. or surcharge the Rivers, t [...] the endangering of the Country.

Goats. 3. Thirdly, Goats. And these a [...] the last of those things we find named o­ver again in the Commission, that m [...] be ad Nocumentum. Mischief enoug may be done by them, 1. in dry yea the Rivers destroyed, 2. in wet yea the Towns.—The Goats within t [...] Defence of the Commission, 1. a [...] Goats of general use for Drayning, an let the Water out whither it shoul [...] 2. There are Goats, most of them f [...] private mens benefit only, and take t [...] Water out, and carry the Water, fro [...] whence, and whither it should not And truly Gentlemen, I do not kno any one thing of general or particul [...] use in this Country, more of late abuse [...] than these Goats or Tunnells have bee [...] in open Defiance as it were of the Com­mission of Sewers it self, by a sort [...] [Page 41] eople, that more esteem the steeping f a Glean of Hemp, than the 1. neces­ [...]ry supply, or 2. the general mischief [...]f a whole Town, or Country. There [...] not a Goat of them, 1. that were [...]aken up, to be laid down again, with­ [...]ut express order from the Court, 2. Nor of them that were untaken up, to [...]un without License and Gage alotted [...]y two Commissioners; and therefore, [...]n your Enquiry take special notice of [...]ll such as have been Offenders in this [...]ind.

2. Gene­ral A­buse, as, 2. Secondly, Other Offences there [...]e in things of general abuse; such I [...]ean, as alwayes tend to some general [...]ischief, and cannot be in an ordinary way allowable; and these you are to Present, that without any more adoe, they may be restrained, or demolished; and they are 1. Locks, 2. Gores, and 3. Ponds.

Locks. 1. First, Locks. These I conceive to be upon the Chanels of your Rivers, or other Water-courses, and are Dams, thrown in of Earth, or otherwise de­vised of art; and these are full stops to Navigation, and to Drayning, both to [Page 42] the Passage of the Water, and to all Pas­sage by Water too, the one is locked up the other is locked out.

Gores. 2. Secondly, Gores. These, ac­cording to the vulgar use of the word I conceive to be upon the Banks o your Rivers, or other Water-courses and are nothing else but great Breaches or great Cuts, wilfully made there Thus a whole River in a little time [...] dis-chanelled, and turned upon th [...] Country; and by such attempts as thes [...] are, you may soon have the Rivers dry and the Country drowned: And thus according to the vulgar acception of th [...] word, a Gore and a Gool seem to be the same thing: But for my own part I am rather of Opinion, that a Gor [...] and a Gorce are the same thing, an [...] that both of them are corruptions of th [...] Latine word, Gurges: Now this wor [...] Gurges, is used in the Commission o [...] Sewers, as it was at the Common Law and a Man by the Law may have a righ [...] thereto, as appears by the Writ, D [...] Gurgite Habendo; and these Gurgite were expresly under the Defence of tha antient Commission: As also, I con­ceive, [Page 43] they were within the Defence [...] the Commission of Sewers in Henry [...]e 6 ths. time, and seem therein to be [...]nglished Weares. Certain it is, Places [...]ey were in Drayns to take Fish in, [...]d in Drayns might be tolerated; [...]ough in the antient Statutes, for the [...]eservation of the Rivers, such of [...]em in Rivers as were disturbances to Navigation, were ordered to be pul­ [...]ed down. But I may have occasion at [...]nother time to speak more fully to this [...]urpose, and for the present shall take [...]em in the vulgar sense, because I [...]ould not disorder the Method I pro­eed in.

Ponds. 3. Thirdly, Ponds. These I con­ [...]eive to be Waters pent or bounded up [...] some Receptacle distant from the Ri­ [...]er, 1. where they are kept in, when [...]hey might as well be Drayned out, and [...]o mischief the Country; For, if I mi­take not, Ponds, Lakes, Pools, and Receptacles of Water, as to matter of Sewers, signifie all the same thing, and [...] rational, or a gradual difference is all [...]hat can be imagined amongst them. 2. Or else they are Waters drawn from the [Page 44] Rivers, and mischief the Rivers: so [...] way or other, they are an Impedimen either 1. to Navigation, or else 2. [...] Drayning. Neither would I once ha [...] spoken of them, had they not been f [...] such expresly mentioned in the Co [...] ­mission.—And because some may agr [...] in Opinion with the Reader upon t [...] Statute of Sewers, and think these Pon [...] to be of small & inconsiderable Mischie I shall only acquaint you with an Inqu­sition of Sewers, taken at Stamfor 6 to. Edwardi 6 ti. wherein dive [...] Ponds, or Pools, nigh the River [...] Welland, and over against Peakald, an Cowbitt, were as then Presented, i that the Owners and Farmers thereof did by Trenches and Gutters, take suc abundance of Waters into the sai Ponds, as 1. both destroyed the Rive of Welland, and 2. drowned Deepin [...] Fen. And so I have done with a such Offences as be in things 1. [...] general use, or 2. general abuse a­mongst us.

3. Particu­lar Abuse, from the▪ 3. A third sort of Offences you ar [...] to Present, that lye in things that are o particular abuse, by some sort of Men [Page 45] at are of some particular Dealing or [...]ployment only.—Usual it is in the [...]orld, every Man would manage his [...]n right to his greatest advantage, d so he may but get, he cares not 1. [...]o, nor 2. how many loses by it; but is ought not so to be.—1. No, not wayes in things wherein a Man may ve an Exclusive Property against all [...]hers; for even in some of them, Sic [...]ortet uti Suo, ut Alienum non Laedat, Man ought so to make use of what is s own, as not to damnifie his Neigh­our. 2. But in such things wherein a [...]an hath only a right at large with o­ [...]ers, (though their rights be 1. in se­eral respects, and may lye 2. in seve­ [...]l prendures) there certainly 'tis not [...] the power of every one, or of any [...]e, to exclude the rest; who, though [...] another kind perhaps, yet have as ood a right as the best. 3. Much less [...]ay any particular Man do it, ad Pub­ [...]cum Nocumentum, to the general [...]ammage of the whole Country, or of he Common-wealth.—And no less is he Mischief, if either Drayning, or Navigation be hindred, for then Rei­publicae [Page 46] Interest, ne quis re suâ, mal [...] ­utatur, the whole Common-wealth i concerned in the wrong. And not onl [...] 1. a general Good is to be preferred be for a particular, but also 2. a genera Mischief alwayes to be heeded before [...] particular Good.—Now two sorts o Men are dealing in the Waters, 1▪ your Miller, and 2. your Fisher; an [...] both of them more covetous of a parti­cular benefit they get, than sensible o any general harm they do there.

1. Mil­ler, in his Mill, Mill­dam, and Flood­gates. 1. First, The Miller, (the Water-Miller I mean) and he hath his 1. Mill, his 2. Mill-dam, and his 3. Flood gates, things obstructive to 1. Navigation and to 2. Drayning, every one of them; and in case 1. new Ones be made where none was before, 2. or the antien [...] Ones be enhaunsed and enlarged abov [...] what they were before, 1. such En­haunsements you are particularly to Present, and, by the Power of thi [...] Commission, they may be 1. abated 2. such new-erected ones you are to Present, and, by the Power of this Commission, they may be 2. prostrated and over-turned.

[Page 47] 2. Fisher, in his Fish­garthes, Weares, Heb­bing­weares, Keddles, and Heckes. 2. Secondly, The Fisher. And a­bundance of Devices he brings along with him, as 1. Fish-garthes, 2. Weares, 3. Hebbing-weares, 4. Ked­dles, and 5. Heckes, all of them En­gines and Devices to catch Fish; and [...]y stopping or straitning of the Rivers, [...]ll of them Impediments to Navigation, [...]nd for such particularly reckoned up in [...]he Commission; and in case any of [...]hese Weares 1. have not been warrant­ed by sufficient 1. Prescription, or 2. Custom, but 3. have been erected de Novo, 1. in, or 2. after the time of Edward the First, without Authority of Parliament, they may be Presented [...]ere, and demolished. Or in case 2. [...]uch as are warranted by sufficient pre­ [...]ription or authority, have any ways een inlarged and exalted above their [...]tient Assizes, that inlargement ought articularly to be Presented, 1. wherein, nd 2. how much it is: and they ought [...]o be corrected and reformed, that is, educed to what they were, and De [...]ure ought to be.

And so I have done with all such of­ences as are Certi Nominis, and parti­ [...]larly expressed in the Commission: [Page 48] All other Impedi­ments, Lets, and Annoy­ances. But besides these, what offence soeve [...] shall be committed, that shall be, 1. either Obstructive, 2. or Destructive, to, 1. Navigation, or, 2. Draining, doubtless you are to Enquire of it, an [...] Present it. All which, that you eithe [...] know, or can imagine: All of them, I say, are comprized in the Commission under the general terms, of, 1. Impe­diments, 2. Lets, and 3. other Annoy­ances: So that what things soever, shal in any manner or kind whatsoever, 1▪ either impede and hinder, 2. or let and destroy, 1. Navigation, or 2 Draining, 3. or shall in respect of ei­ther of them, be, Ad Nocumentum that is, be real Annoyances, or gene­ral Mischiefs, you are to make particu­lar Presentment of them, and we her to take order, that they be reforme and redressed.—And so I have don with the second part of my Discourse And have told you what you are to pre­sent; wherein, as to your Duty, have endeavoured to express my se fully and plainly: And I have observe a Method upon the Commission, as t that end only, which, I confess, ma admit of some just exceptions: And u [...] [Page 49] on occasion hereafter, I may endeavour either to Clear, or Alter: However, I hope it may be excused, if it be con­sidered, that I had not the least Vesti­gium of any man before, so as to Di­rect me, and to Follow him in it.

3. How to Pre­sent. One thing more remains, and that is, How you are to Present: And truly, Gentlemen, I would have your Present­ments, both 1. Formal, 2. and Fair, 1. as to the substance or matter of them, Fair, and Just, and Justifiable, however; Fair. Formal.2. and as for the Form of them, I shall blame no Man for questioning and in­sisting upon that too, as much as 1. the Nature of the Work, and 2. the End of the Commission will permit. But I would have it well considered, that it is not in works of this nature as in parti­cular Causes, which other where are between Person and Person only: In them dispute matter of Form as long as you please, and if you miss one way, to it again another, there is but one Person suffers by it all the while, and he may be relieved well enough at last too:—But in works of this nature (in some of them at least, nay, in most of them) the whole Country is concern­ed; [Page 50] And I hold it no great discretion to dispute the Formalities and Necessi­ties of a Presentment, while the whole Country may be drowned: for in such a Case, who must make the Recom­pence? But to come home to the busi­ness, all that I have to say to you, is, that your Presentments ought to be cer­tain.

Certain in respect of▪ Person. 1. Certain. First, In respect of the Person, that it may be known who you Present. Persons here in England have 1. Names, and Sir-names, di­stinguishing them from such as be of o­ther Names; and 2. they have places of abode, and other additions, distin­guishing them from such as be of the same Name; and as many of these are to be expressed, as may sufficiently de­monstrate the Person you Present, that it may certainly be known who it is you mean.

Default. 2. Secondly, Your Presentment ought to be certain, in respect of the 1▪ Default, or 2. Offence, that it ma [...] be known what you Present, and tha ought to be as particular and certain a may be too, both in respect 1. of th thing, what: 2. the place, where [Page 51] 3. the manner, how: and 4. the quan­tity, how much is in Default: and in respect of Offences, 5. the time, also when, would be some wayes ascer­tained too, though not so exactly as in some criminal Causes, the very day and hour; yet so, as in your ordinary Acti­ons of Trespass, so far I say at least.—And truly Gentlemen, nothing can carry the Form of a Presentment, that hath not these two Certainties, and that in all the respects and degrees I have men­tioned. Commendable, nay admirable hath been the diligence and care of for­mer Ages in this kind, who have gone, not by guess, and at random, but 1. to the Persons certainly, by their exact 1. Terrages, and 2. Aggistment Books: and 2. to the Default, by Admeasure­ments, and have ascertained a Present­ment to a Foot: thus it hath been, but how is it now?—I have oberved in some of your Presentments, 1. That for the Persons you would Present, not so much as their Names are to be found in them, they being no otherwise ex­pressed than by supposition, as Owner of such Lands, or Heir, or Assignee to one deceased, and these signifie just [Page 52] no-body the Court can take notice of, without another Jury to enquire who they be. 2. In others of them, if you have Presented the Persons fully, yet they, upon perusal of your Verdict, could not certainly know for what: so that having 1. many Works of the same condition in several parcels, or 2. much Work contigiously adjacent in one, they could not certainly know what thereof to amend, so as to amend what was Presented; and all this, because you have not ascertained the 1. Default, or if that, not 2. the just and proper Place of it. These are the common Imper­fections and Uncertainties of most of your Presentments, and I tell you plain­ly of them, that no more such may be of­fered to the Court.

Annoy­ance. 3. Thirdly, Your Presentments ought to be certain in respect of the An­noyance or Mischief, whether it be so, in respect of 1. Drayning, or 2. Navi­gation, or 3. common Land-passage; and therein to express 1. wherein, and 2. how much the Country may be en­dammaged, or endangered, as to any, or all of them.

Charge. 4. Fourthly, and Lastly, Your [Page 53] Presentments, in some particulat Cases, ought to be certain too in respect of the Charge; and in them you ought parti­cularly to express what it is makes the Person you Present chargeable, that is, [...]yable to do the Work you Present him for: And this holds in all such Persons as are chargeable to any Works of Sew­ers, by Prescription, Custom, Tenure, or Covenant.

I have observed, that amongst the Persons chargeable to these Works of Sewers, 1. Some of them are more principally concerned in the Benefit, than in the Charge, much more by far, even almost beyond comparison how much: And yet, I know not how it comes to pass, but some of these, I think I may speak it too truly, have not had sufficient respect to the Commissi­oners, and their Proceedings, though all for their necessary Defence and Pre­servation. 2. Others imagine themselves to be equally, if not more concerned in the Charge, than in the Benefit: Such I mean, as have had shares of Land, or other Recompence, for doing of cer­tain VVorks, and now would go away with the Profit of that, but would leave [Page 54] borh Charge and Danger too upon the Country, if they might: So that now it is come to that pass, that if you make not your Presentments certain, nay perfect and compleat in all punctilioes imaginable: though to your apprehen­sions they be never so slight and trivial, yet in VVorks of greatest Importance and Necessity, such as wherein the safe­ty and defence of the whole Country may be concerned, nothing at all will be done by many Men, now a dryes, unless it be by Certiorari to remove your Presentments, and then to find some fault or errour in them, and so to avoid them.

And truly Gentlemen, considering that your Presentments are the Basis and Foundation of the Commissioners pro­ceedings, and that an Errour there is like a Foundation-Errour, no mend­ing of it, but all must down for it; it concerns you, to be more careful in the Forming of them, than you have formerly been; you see other Men of late have been more industrious than forme [...]ly in the questioning of them.

For besides, that the uncertainty of [Page 55] [...]our Presentments are 1. a Delay to the Execution of the Commission; they are also an 2, unhandsome Disparagement to the Court it self, to admit that here, which, upon Examination, will not hold good other-where.—Therefore, shall advise you, not to trust too much to your selves. and to your own plain meanings; No, nor to what I have told you neither; for I am not of that Profession to instruct you fully herein: And what I have spoken, I have spoken altogether under favour, and leave of such as are: And seeing things this way far out, I have rather told you, 1. how your Presentments should not be, in respect of their com­mon and ordinary Imperfections, 2. than perfectly, how they should be: I shall therefore advise you, I say. to have recourse to the Clerk of Sewers, and to consult and advise with him about the Form of drawing your Present­ments, 1. the Matter of them, that is, [...]. What to Present, and 2. Who; God forbid, but that, in regard of the Oath you have taken, should be left 1. wholly, and 2. only to your selves. But as 2. for the Form of them, that is, [Page 56] 3. How to Present, what, and whom you think needful; in that, I say, the Clerk of Sewers may be helpful to you, and can be injurious to no­body.

And so I have given you a rude, and a slight draught of your whole Duty, 1. What you are to do, 2. and How as to the substantial part of it. Some few Motives I would add to excite you to the doing of it.

Motives from There are but three honourable Mo­tives I know of, that fall directly un­der the notion, that your Moral Philo­sopher calls, Bonum Honestum, and they are 1. Prudence, 2. Justice, and 3. Religion; to these three all other Notions of this nature may easily be re­duced. I am not ignorant, that some seem to make them inclusive one of another, and so perhaps would make but one of all three; and very true it is, that Religion is the highest part of Ju­stice, and that Religion and Justice are two of the highest parts of Prudence: but as to my present purpose, I shall make three of them; and then 1. the first of Prudence, concerns you as Men, endowed with Reason, and differing [Page 57] [...]m the Beasts: 2. the second of Ju­ce, concerns you as Common-wealths­en, living under Government, and [...]fering from people meerly bar­rous: 3. the third of Religion, con­rns you as Christians, living under a [...]ristian Government, and differing om all other Nations and Men, that ei­er are 1. of no Religion, or 2. of a false [...]e. Three rational Motives they are, r above 1. the sordidness of Lucre, or the brutishness of Pleasure. I will be [...]t short, but something I shall speak om every one of them, taken strictly, [...]d in their proper Notions.

Pru­dence. 1. First then, From Prudence. In [...]se there was no Law to compel, yet, ut of common Prudence, Works of [...]is nature (to say the least of them) [...]e not to be neglected. First, They nrich your Country; Hence the usual [...]le in such antient Inquisitions of ewers as I have seen, in some is, pro­ommodo Patriae: In others, pro Utili­ate, or pro Ubertate Patriae: For the ommon 1. Benefit, and 2. Fruitfull­ess, or the 3. common Wealth of the Country. Nay, Secondly, more: They reserve your Country: Hence the [Page 58] antient style of the Commission it se was, pro Salvatione Patriae, ad Provdendum Salvationi Regni nostri: So ' [...] literally expressed in the Form of t [...] Commission, by the common Law: A [...] for the Safety and Preservation of t [...] Common-wealth of England, the ve [...] words of the Commission, by virt [...] whereof we now sit.—You have thr [...] great Enemies, 1. the Sea on one sid [...] 2. the Fen waters on another, and [...] the Rivers in the midst of you; whic were they not, by the due and dilige [...] Execution of this Commission, all ke [...] within their bounds, would soon swal­low you up, 1. Stock, 2. Men, 3. Coun­try, and 4. All.

Justice. 2. Secondly, From Justice. First Law it is: Et Fiat quod L [...]x Jubet we all say: Lawes are therefore mad that they may be executed. More, Se­condly, 'Tis Lex Loci, the grand an peculiar Law of the Place, as I may ca [...] it; if other Countries may want it, w [...] in this cannot I am sure. And Thirdly 'Tis Lex Personarum too. You of thes Juries are now more immediately con­cerned in it, and more to look after it than most other Men: The Com­missioners [Page 59] are now to View with your [...]es, and to receive Information from [...]ur mouths, you are the Men that re­ [...]esent the several Wapontakes where­ [...] you dwell; and 'tis now, in a speci­l manner, become your particular ust and duty, truly to inform the [...]ourt, what, by virtue of this Com­ [...]ission, is 1. fit, or 2. needful to be one there: and I hope you will be [...]reful that you do discharge it.

Religion 3. Thirdly, From Religion. And [...]at is an Oath you have here taken, [...]at you will discharge it. Shall I tell ou what an Oath is? 'Tis the very trongest Bond in Religion, and some ay, Religion it self hath its Name, a Ligando, as being nothing else but a [...]ond to God-ward.—Now an Oath is [...]o less than a Bond upon the Soul it self, Numb. 30. V. 3.) than an Obligation [...]pon your Consciences, as you are Christian Men. Deum invoco Testem in Animam meam: I call God for a Record upon my Soul, saith the blessed Apostle (2. Cor. C. 1. V. 23.) And, So help me God, and his holy Gospells, that is, So help me God in Christ, say every one of you: You 1. contest God, you 2. [Page 60] oppignorate your Salvation: it may be both 1. a Soul-matter, and 2. a Salvati­on-matter, and therefore not lightly to be esteemed. 1. God, he is the God of Truth, and is there any of you dare deal falsely with him? and be 1. know­ingly, yea 2. willfully, and 3. stub­bornly Negligent? And 1. not endea­vour, nay, which is worse, 2. obsti­nately, and 3. absolutely refuse to dis­charge your Duty (as some very lately here before you have done) wherein you are thus solemnly engaged? how­ever, in truth, and according to the best of your skill. 2. God, he is the God of Righteousness, and is there any of you, in an unjust way, for 1. Ma­lice, or 2. Favour, or 3. Fear, or 4. Corruption, 1. dare not to do what you ought, or 2. dare to do what you ought not? If you dare, let me tell you, 3. God, he is the God of Ven­geance too. Et qui fecit Testem caveat vindicem: He that hath made God a Witness, let him take heed he make him not a Revenger too; for he will not be a Witness in vain: neither will he suffer any of you, or us, no, not the best of us all, to take his Name in [Page 61] vain:—But Notions of this kind you ought to hear from another place, and therefore here I forbear them; only give me leave to tell you, That an Oath is a thing so Sacred, that the very Whore in the Commedian, she is at her Aliud si scirem Sanctius: There was nothing in the World she knew of greater Religion, or Obligation. And 'tis a sad complaint, in this later Age of the VVorld, against Christian Perju­ry: Christianus Fecit, nil Mirum, nec Novum: That we Christians should make no more account of it; the very Turks upbraid us with it.

So Gentlemen, to conclude, here is a the three-fold Obligation upon you in this business; 1. the first, a Rational Obligation from Prudence: 2. the se­cond, a Civil Obligation from Justice: 3. and the third, a Sacred Obligation from Religion: Let some of these, or all of them at least, make you both 1. careful, and 2. conscientious to dis­charge it. And so I trouble you no fur­ther with words, but leave you to your VVork.

TO give you some account upon what business you are called hi­ther: It cannot be unknown to you, that one Thomas Lovell Esquire, some years heretofore, by virtue of certain Lawes of Sewers, and of an Act of Par­liament, became an Undertaker for the Drayning of two great VVasts in this County:—The one of them called Deeping Fen, understanding by that name, as I shall do throughout my whole Discourse, and as I have VVar­rant for it from a Law of Sewers made [Page 64] [...]o that purpose, all the Fens in that Continent, between the two Rivers of Welland and Glean.—The other Thurlby Fen, and Burne South-Fen. Some of you seem to be of those years, that I questi­on not▪ but you did personally know the Man himself; and might also know both 1. the Condition of the said Fens, and 2. the Charge of all Works of Sew­ers relating thereto, before Lovells in­termedling.

Lovells Underta­king a great Work, in respect of, 1. The Persons Interess­ed. This Undertaking of his, I may well call a great Work, if meer Underta­kings make one: 1. Great, First. In respect of the Persons Interessed: For in the said Wasts, besides Cowbitt, and Caswick, and the odd Houses in Gret­ford, and Tofte; no fewer than twen­ty Towns in the parts of Kesteven and Holland, have right of Common: three whereof are Market Towns, and they of as good trading and traffique as most generally in the County. 2. Great, 2. The End In­tended: not in re­spect of,Secondly, In respect of the End In­tended, which was the great Benefit and Profit, that upon the Drayning of the said Wasts was to ensue; not only to the Commoners, and other persons, Owners therein; but also to the Com­mon-wealth, [Page 65] and Realm of England it self.—And I would I could add, that it had been great, Thirdly, In respect 3. The End Ob­tained.of the End Executed too; that is, a great Work in the Performance, or a great Work perfected: but this being wanting, I may with much truth, and propriety of language say, it hath pro­ved no Work at all. This great defail­ance is the cause of this present Meet­ing, and is the occasion of your pre­sent Enquiry:—For your better dire­ction wherein, I shall propound three things: First, What the Covenants or Contract on the part of Lovell was. Secondly, Lovell for the present being legally Outed from his third part in those Fens, or in most of them, what now is to be done, as to the Works he hath left. And Thirdly, Where, and how they are to be charged.

1. Lo­vells Un­derta­king. Touching the First, the Covenants upon which Lovells Undertaking was grounded, may be reduced to two Heads: First, What he was to Do. Secondly, What he was to Have.

1. Lo­vells Works. As to the First, what he was to Do: the principal Works, omitting those of less concernment, as being not much [Page 66] material to our purpose, were these.

The Drayn­ing, and keeping dry the Fens. 1. First, 1. The Drayning of the said Fens, and 2. the continuing of the same for ever, firm, dry, and depa­sturable Grounds for Cattel at all times of the year: a commendable Work doubtless, had he performed it. Anti­quity hath made famous mention, and hath given famous testimony to Works of this nature: the very desig­nation of them is recorded by Suetonius, to the fame and honour of that great Emperour Julius Caesar: and that, in­ter Majora opera, amongst those re­nowned and Imperial Works, or De­signes of his, such as, to follow the expression of that Author, were de or­nandâ Instruendâ (que) urbe, de Tuendo Am­pliando (que) Imperio: For the Magnifi­cence, and the Enlargement of the City and Empire, this very Work, Pomptinas paludis siccare, is reckoned for one. The like testimony was once to have been found in Livy, and the Drayning of those very Fens was re­corded by him amongst the Consular Works of Cornelius Cethegus, the only Work that made his Consulship famous: And lest after Ages should altogether [Page 67] know nothing of it, Florus, who re­duced the Books of Livy into an Epi­tome, and contracted that larger Book of his, wherein mention was made, a­mongst other things, of this particular Work, into Nineteen Lines; yet even amongst them affords room for this Ex­pression, in honour both of the Con­sul, and of his Work: Pomptinae palu­des à Cornelio Cethego Consule, cui ea Provincia evenerat, Siccatae: Ager (que) ex iis Factus. Such a worthy Work was it, in the esteem of Antiquity, of Fens to make Fields. But to digress no fur­ther, but to come home to Lovell, and the Works he was to do, amongst these was,

The Main­taining the Fen-Banks. 2. Secondly, The repairing, main­taining, and keeping for ever, the Banks encompassing the said Fens: which Banks, to avoid all future Am­biguities and Scruples, are named in the said Lawes, and therein particularly expressed: 1. Some whereof are for the Preservation of the said Fens from the Rivers, 2. Others of them are for the Preservation of some of the Towns concerned in the Undertaking, from the said Fens.

[Page 68] The Ri­vers of VVel­land and Glean. 3. Thirdly, The maintaining and keeping the two Rivers of Welland and Glean for ever, with sufficient Diking, Roading, and Scouring: That is, the River of Welland, so far as the County of Lincoln is charged therewith, from the beginning of Deeping Bank at the Barr: And the River of Glean, from Basson Spout, unto their Out-fall into the Sea, at or near the place where both the said Rivers do meet.

All Fen-Draynes 4. Fourthly, The maintaining and keeping sufficiently Diked, Cleansed, and Scoured for ever, all manner of Draynes, Sewers, and Passages for the VVater, and all other VVater-works, 1. which at the making of the said Laws were in use for the Drayning of the said Fens, and should be to that use, 1. continued, or 2. enlarged by the said Lovell: As also 2. all such other Draynes, as should by the said Lovell, or his Assignes, be devised, and made of new, at their discretions, for that use and purpose. These four, I con­ceive, are the material Points of Lo­vells Charge, what he was to do. And to prevent any weakness or mistaking of mine own, I have pursued the very [Page 69] Letter of the said Lawes, and have gi­ven them to you in Charge here, as I find them there.

2. Lo­vells Re­compence a third part of the Fens. H [...]ld subject As to the Second, What Lovell was to have: 'twas a full third part of all the said Fens, amounting to 10885. Acres, as I account them: A Recom­pence as great, and as full, as any Un­dertaker whatsoever in these parts, ori­ginally, and upon the first Onset, ei­ther had, or desired. Look into the present Levell of the Earl of Bedford▪ Or into that sometime the Earl of Lind­seyes: Or into that heretofore of Sr. An­thony Thomas, and you shall find none of them had more than a third Foot, some of them not so much,—And this third part he was to have in Fee-simple, to him, his Heirs, and Assignes for e­ver. Subject, First, To a Condition To a Conditi­on of Re-entry.of Re-entry, on the behalf of the Own­ers and Commoners, upon such 1. De­fault, and 2. Certificate: 1. in such manner, and 2. during such time, as in the said Lawes is expressed. And Secondly, Subject to a Charge of all To a Charge of Works.manner of Banks, Sewers, Rivers, Goats, Sluces, Draynes, and other Works whatsoever, for the Inning, [Page 70] Drayning, or keeping dry of the said Fens.

And Gentlemen, This is all I have to say to you, concerning Lovell, and his Undertaking: both 1. as to his Works, what he was to do: and 2. as to his Re­compence, what he was to have: which if any here shall think Extravagant or Impertinent, and not pursuant to the present business, I shall crave his par­don: For my own part, I did not know how to fall upon the following parts of my Discourse, without speaking this, as a Foundation to it: nor how to break into them, with that clearness and full­ness I desire, without relating it.

2. The Jury to Present. And so I come to the second part of my Discourse; Lovell for the present being Outed from his third part in these Fens, or in most of them, (the Com­moners having lately made such a legal Re-entry upon them, and in such man­ner, as by the said Lawes is directed) what now is to be done as to the Works he hath left.

And truly Gentlemen, To deal plain­ly with you, I must, in the first place, confess my self not to be of that Pro­fession, or Ability, as to give you suf­ficient [Page 71] Instruction herein: only some­what I would speak, out of a desire I have to give you some Light in the bu­siness: and that not only 1. with sub­mission to all present on the Bench, in case of a better Judgement: but also with a 2. desire, they would be pleased, to observe and correct my mistakings. For my own part, (I speak it clearly) I am neither so contentious, nor con­ceitedly ambitious, as to have any Er­rour of mine maintained, and thereby to lead you into a worse; and it may be such a one as may be destructive to the whole business you are now about: But to goe forward.

1. What Works Lovell had in Charge. To speak your business in few words: It is to Enquire, and to Present in par­ticular, First, All such Works as Lo­vell, or his Assignes, had in use, and were charged withall: 1. which either directly tended to the Drayning of the said Fens, or 2. were put upon his Charge in order thereunto. And Se­condly, 2. What Defects are in such of them, as are to be continued.What Defects in particular are in such of the same, as are 1. fit, and 2. necessary to be continued.—For I observe to you, and you are to take special notice of it, that the Works in [Page 70] [...] [Page 71] [...] [Page 72] the Charge of Lovell, and his Assignes, are of several kinds.

Lovells Works. 1. First, Some of them of antient charge and use. Secondly, Others of them are of Lovells, or his Assignes own 1. Some of his own de­vising: whereof,devising, Works made by him, or them, de Novo, at their own pleasures and dis­cretions: For Lovell had power to con­tinue what antient Draynes he pleased; and also, at his will and pleasure, to make new Draynes, either 1. within the Fens, or 2. without towards the Sea, of what quantity, depth, or wideness, should in his own discretion be best, and of most advantage for the perfecting of the Work. Neither could this Power, in such manner as it was granted to Lovell, be any wayes 1. unreasonable, or 2. injurious. 1. Not unreasonable, because these Works were to be made at his only charge, and as for the success of them, that was like­wise to be wholly upon his sole adven­ture and hazard. 2. Nor injurious, for none could ever have had just cause of complaint,—in case 1. the work of Drayning had, according to the Cove­nants of his undertaking. been perfect­ed in all the Fens:—and 2. the particu­lar [Page 73] Provisions under which the said new VVorks and Draynes were to have been made, and to have run, or been made use of, had been observed: to wit, 1. that they run not above soyl, 2. or to the hurt of any person or per­sons, 3. or to the hurt or crossing of any other Drayn. But Lovell neither 1. per­fecting the one, 2. nor observing these other, some of those Works that he had power to make, are now become, not only injurious, but altogether in­tolerable: For amongst these new Works of Lovells own devising,

Some Drayn one Fen, by Drown­ing the other: and are not to be continu­ed. 1. First, Some of them are such, as Drayn one Fen, by turning the Wa­ters thereof into the other, and there leaving them: These I know not well whether to call Works of Drayning, or Works of Drowning rather. I con­fess a new device it was of Lovells, by such Works as these, to Drown well nigh thirty thousands of Acres, for the Gaining or Drayning of three. And not to speak in the dark, but to give you a plain instance: In case Thurlby Tunnel shall, upon your Enquiry, appear to be a new VVork, devised by Lovell for the Drayning of that Fen; and shall ap­pear [Page 74] mischievous to the 1. making, or 2. increasing the surrounder of Deeping Fen, you are to give special notice of her in your Presentment: and therein to express, 1. quo Jure, that is, by what Law or Right she lyes: and 2. ad quod Damnum, to what Dammage or Mischief she runs. Lovells proper Work was to have Drayned these Fens: And I deny not, but that the manner of Drayning was wholly in his power and discretion: But this I say, Lovell had not power to Drown, or to increase and double the surrounder of Waters in any of them, and then to leave them, and to leave the mischief of such other VVaters upon them, as before never annoyed them. And give me leave, seeing it falls directly to my purpose, to observe to you the present condition of Deeping Fen.

On the one side of it, First, All the VVaters of Thurlby, and Burne Fen, and of that part of the Country descending into that Fen, are wholly issued into it. Secondly, The Over­flowings of the River of Glean, and the whole mischief thereof, upon all Floods, and increase of VVaters, is [Page 75] wholly avoided upon it; and all this mischief falls directly upon the said Fen since Lovells time, and by new Works of his devising: such as is, 1. the Tun­nell aforesaid, and 2. the Slakers on Basson Bank, and 3. the exalting the Banks for Defence on Thurlby and Burne side, much above their antient heighths: Works contrived on purpose for the 1. turning the Waters in hither, and the 2. taking them off from Thurlby and Burne Fen, which was formerly their antient Receptacle: and, up­on that score only, heretofore e­steemed one of the best Pike-Fens in the Country.—On the other side of it, besides the surrounder thereof by its own proper Waters; such 1. as fall ei­ther immediately upon it, or 2. have their course into it, 3. to look upon the River of Welland, that great River, and well to consider the great violence thereof: one half of whose streams, not long since, had their passage to the Sea another way, through Croyland; and yet even then, a great part of its Over-flowings upon all Floods, re­ceived by South-Ea Lake, and other­where into the great Levell: Now I [Page 76] say, to consider the said great River, 1. banked out on all hands securely from thence: 2. lost below in its Out-fall to the Sea: and the violent streams and rage thereof, 3. thrust and straitned into one Chanel above: and 4. turned wholly upon this one poor Fen: This I say, being well considered; and this being the present condition of this Fen, it concerns us all nearly, to look care­fully to it, and to keep out all such of these Waters, as legally may 1. either be kept out of it, 2. or kept off from it: otherwise the truth is, this Fen will not be long able to contain them, but must of necessity discharge them, to the unavoidable destruction of such Towns as are seated below it towards the Sea.

And although I know many of an Opinion, that by the Commission, such Works of Lovells as these may be totally removed, and destroyed, a Fun­damento: yet it is unquestionably cer­tain, that the mischief of them may, and ought to be totally removed: And to that purpose, 1. some of them may be abated, 2. others of them are to be stopt up, and made useless: if other­wise, [Page 77] they cannot be made harmless. But besides these,

Others tend di­rectly to Drayn­ing: and are to be continu­ed. 2. Secondly, Other Works there [...]e of Lovells devising, that have no [...]ischief in them, but directly tend to [...]he work of Drayning, as 1. either to [...]ll, 2. or to some of the Fens by him [...]ndertaken; and these you are also to [...]ake notice of, and particularly to Pre­ [...]ent: 1. what they are, and 2. how [...]ecessary or useful they may be. And [...]o much concerning those Works that were wholly devised of new by Lovell, or by some of his Assignes; and 1. how [...]ar, and 2. to what purpose you are to ake notice of them in your Enquiry and presentment.

2. Other Works of antient use; whereof, But, as I formerly told you, be­sides those Works of Lovells own de­vising, de Novo, there were others upon his Charge too, that were of an­tient charge and use: Such I mean, as were in charge upon the Country, and in use, 1. for the Drayning of the Fens, or 2. for the Preserving of the Towns against them, time out of mind, before ever Lovell intermedled. Now these likewise will fall under a two-fold consideration.

[Page 78] Some continu­ed on, without Altera­tion. 1. First, Such as were time out of mind antient Draynes, or Banks, or other VVorks, continued on by Lovell, or his Assignes, in their antient way and course, without any 1. exalting, or 2. enlargement, or any other 3. change or alteration whatsoever, 4. or with such small or slight alteration, as in effect is to be esteemed none at all. And such as these you are to take special notice of in your Enquiry, and in your Verdict to Present them in particular, what they are, and to distinguish them from the rest.

Others continu­ed on, with great Altera­tions and En­large­ments. 2. Secondly, Such other antient VVorks as are continued on by Lovell, and his Assignes, but not in their anti­ent way and proportion, but with much alteration, from what time out of mind, I may say, from what time within mind; they have been. Such Draynes I mean, as have for the greatest, or a great part of them, 1. been altered in their Chan­nels, and made of new: or if continu­ed in their old Chanels, yet 2. therein much enlarged, beyond and above their former 1. Bredths, and 2. Depths, For Lovell, and his Assignes, had pow­er, both 1. to continue such antient [Page 79] Draynes as he should think fit, in their old and accustomed wideness and bredth: and also such other as he should think fit, 2. to enlarge at his and their own will and pleasure.—So Gentlemen, as I take it, this will be one considera­ble Point in your Charge: and in your Enquiry you are to take special and par­ticular notice of all such Draynes and VVorks so altered and enlarged: and in your Verdict particularly to express, 1. wherein, and 2. how much that altera­tion is.

And so I have done with the second part of my Discourse, and have told you, 1. what now is to be done, as to the VVorks Lovell hath left; and 2. with what differences and distinguish­ments you are to observe them, and Present them. 1. Some of them, as I told you, are not to be continued, in such use as at present is made of them at least, as those of his own devising, that are mischievous; and of these you are to take no other notice in your Present­ment, but that 1. they, or 2. their mischief however, may be removed. 2. All the other of them are to be con­tinued, at least not to be destroyed; and [Page 80] under such distinctions as I formerly ob­served them to you, you are to take notice of them, 1. in what condition they are, and 2. how useful they may be, and 3. to Present the defects there of, that where necessity is, they may be repaired and amended.

3. The Works to be char­ged, ei­ther upon And so I come to the third part of my Discourse, to tell you, how these VVorks are to be Charged, and who they be that ought to repair them; it would be otherwise to small purpose to Present them.

In this case there are but three wayes imaginable, where the Charge of them should at present either 1. rest, or 2. be 1. The antient Charge-bearers.cast; and that is, either, First, Upon the antient Charge-bearers, and those that are now in their Right, according to their former Allotments and Apporti­onments, before Lovells intermedling. 2. Or Lovell. 3. Or the Commo­ners in the Fens.2. Or else, Secondly, Upon Lovell, his Heirs, or Assignes, in case he or they be bound thereto. 3. Or Thirdly, in the last place, To use the Authority of the present Commission of Sewers, and to lay the Charge of them, 1. upon the whole Fens, and the Commoners therein, that receive the benefit of them, [Page 81] 2. or to assign and decree some reasona­ble 1. part of the Fens, or the 2. profits of it, as to that purpose—And here give me leave to observe to you, that no new Charge is to be imposed upon the Fens, or the Commoners, by virtue of the Commission, (without the Owners and Commoners consent thereto) but 1. where the antient Charge is 1. un­known, or 2. extinguished: 2. and where Lovell, his Heirs, and Assignes, are 1. acquitted, or 2. are not in a con­dition or capacity, by the power of the Commission, to be compelled. This way of Charge I mentioned to you in the last place, and it is only to be made use of in the last place, when all other wayes fail: and for 1. necessity, or 2. conveniency to supply their defects. And having observed this to you, I now proceed to declare unto you, with as much wariness and cautiousness as I can, where the Works, formerly in Charge of Lovell, according to the di­stinctions I observed amongst them, are now to be charged.

1. And in the first place, we have already told you, that amongst the Works of Lovells own devising, some [Page 82] 1. Such Works of Lovells devising, as are not to be continu­ed, are not to be charged. 2. Such as are to be conti­nued, are to be charged. of them are not to be continued, b reason of their mischief; and therefore, as to these, you need not enquire who is chargeable: And of them I shall need say no more, but, that if any Persons of their own accord, would offer to bear the Charge of them, they are not to be admitted, because the Works them­selves are not to be suffered.

2. Secondly, As to the rest of the Draynes and Works devised by Lovell, or his Assignes, that are of use and be­nefit, you are to consider well where to Charge them; for, without ap­parent mischief and danger to the Country, they can neither be 1. left, nor 2. lost.—And as to these, I take But not by way of antient Charge: but uponit to be clear, that no antient Charge can be put upon them, because they themselves are not antient Works. They are Works, de Novo, of Lovells own devising, and could not be in Charge before they were in Being: 'Tis true, that some of them, if not all of them, do supply the use of such antient Works as by Lovell were deserted, and are now irrecoverably decayed and lost: But, as I take it, though Lovell might at his pleasure transfer [...] [Page 83] the Work; yet because that was not the same Work, in Individuo, with the antient one, but another, and a new Work in lieu of it, he could not trans­ferr the antient Charge, and affix that to a new Work of his own devising: but the antient Work being extinguish­ed and lost, the antient Charge is ex­tinguished and lost with it, and no Law I know of can remove it hither to these new ones. So then, the Charge of these VVorks must be put 1. either up­on Lovell: Or, The Fens. Lovell, his Heirs, or Assignes, that first devised them: 2. Or else upon the Fens, that receive the immediate and whole benefit of them.

3. Works of Lo­vells en­larging, to be con­tinued, and their Enlarge­ments to be charged: 3. Thirdly, As to those other Draynes and VVorks that Lovell made not, but only made use of; VVorks of antient Charge, and continued on, but with great Alterations and Enlargements. As to these, I conceive, 1. If they should be reduced to their antient Charge, that would be to little purpose, for that would not maintain them in their pre­sent Enlargements. 2. Or if the Draynes and VVorks themselves should be reduced to their antient Proportions, that would be of worse consequence; [Page 84] for as to most of them, they are in that manner contrived, and fitted to their present Chanels and Currents, that to reduce them now to what formerly they were, would be little less than to spoyl Not up­on the antient Charge­bearers: but uponand destroy them. And I take it to be clear, 3. That the antient Charge can­not be enlarged in a proportion to the Enlargement of the VVorks; for the antient Charge, was a Charge fixed by the common Law, upon certain Per­sons, by reason of their Tenure of cer­tain Lands or Mannours, or for other certain consideration: A known fixed Charge, and ascertained, and not to be stretched no more than the Law it self Lovell: Or,that fixed it.—Now that Lovell might well charge himself, and his Heirs, and Assignes, as to these Enlargements, I hold it agreeable both to Law and Rea­son, because they were VVorks done 1. by his own will, 2. and upon his own adventure: but that Lovell thereby, should at his own pleasure, and for his own advantage, increase the Charge of another, and lay a new Incumbrance upon another mans Lands and Estate, I, for my part, hold unreasonable, and altogether improbable.—So these [Page 85] VVorks likewise, have none to main­tain them, in the proportion they are now in, unless they, as to their parti­cular Enlargements, may be charged 1. upon Lovell, his Heirs, and Assignes, The Fens.that enlarged them: 2. or upon the Fens that shall receive profit thereby.

4. Works of antient Charge unalter­ed. 4. But Fourthly, and in the last place: To come to such antient VVorks as Lovell made use of in their antient way and course, 1. without any altera­tion at all, or 2. without any great one worth the taking notice of: And of these I cannot speak my mind clearly to you, without distinguishing them, so as I may make an 1. Equitable difference amongst them at least, even as they stand in relation to Lovell, and his Assignes: and a 2. Legal difference a­mongst them, as they stand in relation to the Fens, and the Commoners therein.

1. Such [...]s Lovell had no considera­t [...]on for: upon Lo­vells neg­lect and ab [...]yance, 1. First then, Some of these are such as Lovell charged himself withall, without any reason or consideration, more than his bare will and pleasure: And thus the River of Glean, so far as the Town of Surfleet was antiently charged with the same, became Lovells [Page 86] Charge and VVork: 'Tis true, they of Surfleet have Lovells Covenant for their discharge, but that is no absolute Dis­charge, but only a bare Covenant, such as it is, without Consideration too, to discharge, or save harmless; which if he do, it is well, and no more can be de­sired; Return to their antient Charge.but if he do not, they of Sur­fleet, as I take it, may be compelled by the Commissioners of Sewers, to do their work in their antient manner and charge: and they have their remedy o­ver at Law against Lovell, for not per­forming his Covenant, where they Lovell could not Charge the Fen-Lands with them longer than they were in his own hands.may take it.—However, this I think I may speak clearly to you, that although Lovell might charge the third part of these Fens, wherein they of Surfleet never had any interest, for the doing of this particular VVork of theirs, whilst the said third part was in his own possession and disposal: Yet, I take it, such Charge is now become void, or suspended at least, upon the Re-entry of the Commoners, and during their holding of it: Lovell could create a Charge therein no further than 1. as for his own Estate, and 2. whilst it was in his own hands: the Owners, and the [Page 87] Commoners, he could not, by any act of his, damnifie.—So Gentlemen, You are to make special Presentment of the River of Glean, and to express how far they of Surfleet have been antiently, and of right chargeable with the same. And you are also to make Enquiry 1. in­to the antient Charge of so much of the said River, and 2. into the present De­fects thereof; and to make particular Presentment of them, upon such Per­sons in particular, 1. inhabiting, or 2. holding any Lands or Manours in the said Town, as of right ought to amend them.

2. Such antient Works as Lovell had Confi­deration for, in the first place, are to be Charged upon his Heirs and Assignes. 2. Secondly, Other antient VVorks there are, that Lovell continued on, in their antient course, without altera­tion, and took upon his Charge upon reasonable consideration and recom­pence; 1. Such VVorks of this nature as you shall find, as I take it, the Charge of them, in the first place, even for the present, is to be laid upon Lovell, his Heirs, & Assignes, and not other-where, but upon their neglect and default. 2. And if the Charge of these 1. antient VVorks that were made before Lovell▪ time, then much more, and à Fortiori, [Page 88] As also, all such other Works, as were of Lovells 1. devi­sing, or 2. en­larging. the Charge of all such other VVorks al­so, as were of Lovells own 2. devising, 3. or enlarging: for they in a more peculiar manner relate unto him, and carry, as it should seem, his special mark and stamp upon them.—And to clear this to you, as to all these very VVorks in particular, (all which, that they were expressedly in the Charge of Lovell, I declared unto you at large in the first part of my Discourse, wherein I told you, what Lovell was to do) as A double Charge upon Lovell. 1. By way of Cove­nant.to all of them, I say, there is, by the Law, a double Charge upon Lovell.

1. First, A Charge upon Lovell, his Heirs, and Assignes, and every of them, by way of Covenant, at their own proper costs and charges, for all times for ever hereafter, to repair, maintain, and keep them; and thereof, (to bring it home to my present pur­pose) for ever to discharge, exone­rate, acquit, or save harmless, as well the Queens Majesty that then was, her Heirs, and Successors, as all other Persons, their Heirs, and Assignes, of and for their repairing and amending their several parts or allotments of the [Page 89] same.—So Gentlemen, Take notice of it; here is an 1. absolute Charge upon Lovell, his Heirs, and Assignes for e­ver: and 2. a Discharge, by way of Covenant, as to all other persons. And a Covenant, we all know, is a good ground of Charge, in Cases of Sewers; and is binding to the Heir, 1. in case case he be named therein, as in this he is: 2. and hath Assetts descended. So that in case you shall find Lovell to have an Heir, who holdeth Lands in descent from him; though the Lands lye out of the Country, and the View of the Commission: yet the Heir, by reason of them, is chargeable to these very VVorks: I say not, that such Lands are chargeable, but that such Lands are Assetts in the hands of the Heir, making him chargeable.

2. By way of Tenure. 2. Secondly, There is a Charge up­on Lovell, his Heirs, and Assignes, by way of Tenure: he or they had cer­ [...]ain Lands, that is, 1. the third part of these Fens, 2. or some of them being part of the said undertaking, made, and [...]o be held subject to this Charge, by [...]he Act of Parliament thereupon. The continual maintaining of these VVorks; [Page 90] and thereby the keeping dry of these Fens, is the expressed Consideration Lovell had these Lands for: And, as I conceive, the Charge of these VVorks shall goe along with these Lands, and with every part of them, in cujuscun (que) manus devenerint, be Owners of them who will, under Lovells title.—So Gentlemen, I conceive it will be one very considerable Point in your Charge, to Present 1. how much of the said Lands is in the present possession of Lovell, his Heirs, or Assignes: 2. where the said Lands lye: 3. and who are the present Owners and Tenants thereof.

The-Com­moners Re-entry neither a Suspensi­on nor Extin­guish­ment of Lovells Duty. As for the late Re-entry of the Own­ers and Commoners upon part of them, I for my own part conceive, that by the Intendment of these Lawes, such Re-entry was never condition'd for an acquittal on the behalf of Lovell: but was therein inserted altogether in fa­vour, and for the benefit of the Com­moners and Owners; and, as I take it, is nothing else but a meer penalty upon Lovell for his default; and during it, a suspension of his right: but is neither a suspension, nor extinguishment of his duty.

[Page 91] If Lo­vells Heirs be without Assetts, and his Assignes out of Possessi­on, then in their neglect and abey­ance, So then, 1. Lovells Heirs are charge­able to these VVorks, but so far only as they have Assetts descended: 2. and Lovells Assignes are chargeable also, but so far only, and so long as they are Owners, Et Dum Tenent Terras, and are Terre-Tenants, and hold the Lands, or any of them, upon which this Charge is fixed.—But put the case, 1. Lovell have no Heir with Assetts in his hands to charge him, 2. and that the Assignes of Lovell should be Outed the Fens, in Toto, and should stand at abeyance, that is, 1. neither do these VVorks themselves, nor 2. yet part with their right to these Lands, so as that others therewith may be procured to do them; nor so much as look after them, or us, but at their own time, and when they shall please. For cer­tain 1. An­tient Works unaltered will re­turn to their an­tient Charge.it is, 1. a right of Re-entry they have upon us, when ever they shall do their Works: and 2. 'tis a very great question, whether we have any com­pulsory power at all upon them, during their dis-possession: or 3. that being Outed in part, should be Acquitted in part; and as to these particular Fens and Works; and should stand at like abey­ance, [Page 92] as to us, and them.—In this case, when ever it shall be or happen, during the Acquital, or other Dismissi­on, 2. New Works are to be charged upon the Fens.or Intermission of Lovells As­signes; and supposing the Inability, or Incapacity of his Heir: 1. These antient Works unaltered, will return to their antient Charge: And all the rest of the Works, such as were of Lovells own 2. devising, or 3. enlarging, as to their 3. Antient Works al­tered and enlarged, are to be charged, both upon the 1. an­tient Charge-Bearers, as to their antient Proporti­ons: and 2. upon the Fens, as to their Enlarge­ments.particular Enlargements only; and are so to be continued on by the Commissi­oners, for the common good, may by them, and by virtue of this their pre­sent Commission, be charged upon the Fens, and the Commoners that receive the immediate benefit of them.—And in case of such Failer on the part of Lo­vells Heirs, and Assignes, can, ac­cording to what I have formerly told you, no where else be charged.

And to avoid all difficulties, as to the defraying of the Charge of these Works wherein the Commoners in these Fens shall be any wayes concerned, I shall propound this to you, as a way of the greatest ease, and of the greatest equity: That the third part of these Fens, formerly held by Lovell, may [Page 93] still be held on in severalty: and that Lovells third part still to be held in se­veralty; and with the Com­moners consent, that way employed and de­creed.with the consent of the Owners and Commoners, the profits of it may be disposed of, for the discharge of them. And if they shall think good to desire it, a Decree of Sewers may be drawn up to that purpose.

And thus far we have pursued Lovell, and his Works: But what if other Works, 1. that were never in the Charge of Lovell: 2. nor in the Charge of any other Person, appear to be of The Out­fall of VVel­land.necessity, and of such great necessity, as that without them, the maintaining or perfecting these VVorks in the Charge of Lovell would be to little use or purpose: Such as I conceive, may be the opening of the Sands, and the making of a new Current or Chanell in the River of Welland, for some Miles to­gether further towards the Sea than ever heretofore the said River was in charge. I shall leave the 1. Necessity of this VVork wholly to your considerations; and withall to consider well, and to in­form the Court, 2. what is the true cause of the present decay or loss of the River of Welland in its antient Out­fall; that in case of a new Charge, it [Page 94] may be imposed 1. upon them that oc­casioned it, and 2. upon such Lands as are gained by it.

All other Defaults and Of­fences. And thus I have altogether done with the grand Business of your Charge and Enquiry. But besides this, 1. what other Works of Sewers you shall find in Default, or 2. what Offences you shall find committed, contrary to the Laws of Sewers, 1. either upon your own View and Knowledge, 2. or upon sufficient Information from others, in your En­quiry, you are to take special notice of them; And such Works in Default, you are to Present 1. upon the Persons that ought to repair them: and such Offences you are to Present 2. upon the Persons that committed them.

And now Gentlemen, I have spoken my mind to you 1. freely, and 2. plainly; And in any thing I have spoken wherein 1. you are not satisfied, you may consult the Court: and in any thing wherein 2. the Court is not satisfied, I do humbly desire it, they would be pleased better to inform you.

YOU have heard a Petition, and the Order of the Court thereupon, read here; and they give you a short account upon what Business you are cal­led hither: 'Tis to set out some 1. speedy, and 2. effectual Course, for the Ditching of the River of Glean, from a place called Newbury, through [Page 96] the Town of Surfleet, to its Outfall. This is the present work, both of us here, that be of the Court; and of you, that be of the Jury: And upon the whole matter, I shall propound three things to your Considerations: 1. The first shall be concerning the Ne­cessity of the Work. 2. The second concerning the Persons upon whom the Work at present is to be Charged. 3. And the third concerning the Manner of that Charge.

1. The Necessity of the Work. 1. 'Tis for the Preser­vation of Navi­gation. As to the First: Though the Petition in its own words be full, and requires no Commentator; yet out of it I shall instance in these particulars.

1. First, 'Tis for the Preservation of Navigation: The loss of this 1. de­prives many particular Men (that way [...]red and subsisting) of their Employ­ments and Lively-hoods, 2. it deprives the Country it self of many rich Com­modities and Advantages; and as to these parts, 3. it destroyes and blocks up that general Trade and Commerce they have formerly had by this River with the other parts of this Nation. So Gentlemen, You are to Enquire, 1. Whether Boats, Barges, and other [Page 97] Navigable Vessels, can have such 1. full, and 2. clear Passage upon this Ri­ver, as of right they ought, and have been accustomed to have: And if not, 2. You are to certifie the Court of it, and the Cause why they cannot have it. The Law of this Land is, and alwayes hath been very careful of Navigation, and will admit nothing that shall be to the 1. Deterioration, much less to the 2. Destruction of it. And the Preser­vation thereof is one of the main Ends the Commission of Sewers it self was made for.

2. 'Tis for the Preser­vation of a great part of the Coun­try. 2. Secondly, 'Tis for the Preserva­tion of a very great and considerable part of the Country. This River is the only Outfall (that can lawfully be claimed) for the Drayning of the whole Township of Pinchbeck, and for the Drayning of a great part of the Town­ship of Spalding; and upon the loss of this River, would unavoidably follow the loss and destruction of one of these Townships at the least. But besides these two, many other Towns, Fields, Meadows, and Fens, in the adjacent parts of Kesteven, have, of antient Right and Custom, issued their Waters [Page 98] by this River to the Sea; and they all, of necessity, must sustain great and ine­stimable Dammages in the loss of it: A loss too great, not only to the particu­lar Persons having Interest; but also to the Body of the Common-wealth, in losing such a part of it self; and no wayes by the Commissioners of Sewers to be suffered or endured. For, Gen­tlemen, I would have you take notice of it, that the Preservation of Towns and Grounds, heretofore through po­litique wisdom won, and made profita­ble for the benefit of the Common-wealth, is the chief thing within the charge and care of this Commission.

The Sea-coasts upon this Country (you all very well know) is a flat, and a loose Sand; and would soon silt, and stop up the Outfalls of the whole Coun­try, was it not for the Rivers, and the constant Streams of Water issuing down their Chanells. And I observe, that it hath been the prudence and provi­dence of our Predecessors, and such o­thers as have been employed for the Preservation of this Country, to pre­serve the Out-falls of the Rivers in their full deepness; and to lay what force of [Page 99] Water they could upon them, either by Fynnes, or such other Devices, for the scouring out of the Sand.—Now this River of Glean, as to this very part of it from Newbury, that you now have in charge, 1. it being the Out-fall to the whole River, and 2. it being at present so greatly obstructed, that by reason thereof, this River cannot dis­charge its own Waters into the Sea: Look a little back upon the mischief of it: First, Those Waters rebound upon the Fens, and cause a great surrounder there; From whence, Secondly, Up­on all winds and storms, they rage a­gainst the Defensive Banks of the Towns, and cause a daily danger and fear there. And Thirdly, They ob­struct the Out-falls of all your other Draynes:—So that for the present, what violence of Waters soever shall come upon the said Townships, either by downfall, or otherwise, (such is their sad condition) they must receive all of it in, and can issue little or none of it out.—And thus this River of Glean, and that other of Welland, here­tofore the two principal Ornaments of this Country, and the chief riches and [Page 100] delights of the Towns through which they had their Currents, are now, 1. for want of maintainting, and 2. by reason of other abusings, become the greatest Mischiefs: And those Towns, heretofore the principal in the Country, are now become little better than meer Ponds and Pools, nay very Seas, as in truth, whoever at present will look up­on them, shall find them such.

3. 'Tis for the Preser­vation of many other Works of Sewers. 3. Thirdly, 'Tis for the Preserva­tion of many very great and considera­ble VVorks of Sewers, lately repaired for the good of the Country: As 1. Blew Goat, 2. Burtons Goat, 3. the several Drayns leading to each of them; all which depend wholly upon the gain­ing of the Out-fall of this River; which if once effectually Ditched, these very VVorks would preserve: and if not, 1. the VVorks themselves will be altoge­ther useless, and 2. great summs of Money expended about them, will be utterly lost.

And so I have done with the first part of my Discourse, and, I hope, have therein sufficiently intimated to you, the Necessity of the VVork, and that the Necessity of it is so great, that, [Page 101] without unsufferable dammage and dan­ger to the Country, it can admit of no delay. In majoribus Causis, major ad­hibenda est Cura: The greater import and necessity the business is of, the greater also ought to be the care of such as are trusted in the management of it. The Commissioners you see have suffici­ently testified theirs, 1. in giving it a particular Consideration, and 2. dire­cting you, as a particular Jury for En­quiry in this mighty Business: And I doubt not, but that you will all of you endeavour to manifest your care and di­ligence in doing of your parts; as the Commissioners have in doing theirs.

2. The Persons Charge­able. And so I come to the second part of my discourse, to declare unto you, the Persons upon whom this VVork for the present is to be charged.

The Charge up­on Lovell, his Heirs, and As­signes, by Lawes of Sewers 41. and 42. Eliz. by Act of Parliament 1. Jacobi. Clear it is, that the Charge thereof for many years last past, ever since the 41 st. and 42 d. of Queen Elizabeth, by certain Lawes of Sewers then made: or at least ever since the First of King James, by Act of Parliament, in Con­firmation of those Lawes, hath been upon Lovell, his Heirs, and Assignes; [Page 102] The words are, That Lovell, his Heirs, and Assignes, at his and their own pro­per costs and Charges, (amongst many other things) shall also for ever main­tain and keep the Rivers of Glean and Welland with sufficient▪ Diking, Road­ing, and Scouring: to wit, (the Ri­ver of Welland, as is therein expressed) and this of Glean, from a place called Basson Spout, unto its Out-fall into the Sea. (So that this part of Glean, from Newbury, through Surfleet, to its Out-fall, was undoubtedly included in Lo­vells Charge, and was a part of his VVork.) And also shall thereof dis­charge, exonerate, acquit, or save harmless, as well the Queens Majesty (that then was) her Heirs, and Suc­cessors, as all other person and persons, their Heirs, and Assignes, of and for the repairing and amending of their se­veral Parts and Allotments in either of the said Rivers.

These words are all, that any per­son, formerly lyable to the maintain­ing of these Rivers, can allege, 1. ei­ther to charge Lovell, 2. or to discharge himself.—And I shall consider how far these words may operate: First, As to [Page 103] the Charge upon Lovell, his Heirs, and Assignes. And Seconly, As to the discharge of such other Persons as were formerly lyable thereto.

1. How far the Charge imposed extends upon 1. Lo­vell. 1. For the First: As to the Charge imposed upon 1. Lovell, his 2. Heirs, and 3. Assignes, how far it shall extend upon them; that I may proceed therein with the greater clearness, I shall take them severally. And,

1. First, As to Lovell, the Person that bound himself to the doing of these Works, I take it to be a full Charge upon him, both as to his 1. Person, and 2. as to his Estate.—But he many years since is dead and gone, and so 1. no help from him for the present at all, 2. much less any present and speedy help, such as the Necessity of this VVork re­quires.

2. His Heirs. 2. Secondly, As to his Heirs, they being herein expresly mentioned, I take it to be a Charge to them likewise, so far as Heirs by the Law are charge­able; that is, 1. so long, and 2. so far as they have Assetts descended. The Lawes of this Nation (give me leave to speak it) are not so hard in this Point, as those sometimes of the King­dom [Page 104] of Israel, where the Children might be made Bond-slaves to satisfie the Fathers Creditor: No, they bur­den not the Heir, where the Heir hath no benefit. And as to any Estate 1. of his own industrious Acquest, 2. or of Gift, 3. or Right from others; they burden not that neither: And 1. no farther, nor 2. no longer is the Heir lyable, than so far, and so long as he hath Assetts in descent. Now in case you make Enquiry after Lovells Heirs as to this particular, I doubt it will be to little purpose: Lovell confesseth him­self to have spent his whole Estate in these Works, and very unlikely are his Heirs to hold Lands from him other­where, who never enjoyed from him one Foot of these in the Fens. So then, Enquire you 1. may, and 2. ought after them; but if no Assetts be in their hands, no Relief will be had from them in this business.

3. His Assignes 3. Thirdly, As to his Assignes, they are Persons, I confess, of great Estates, and Honour too; but I conceive, can de Facto, no longer be forced to the Charge of these Works, than de Facto, they are Terre-Tenants, and hold the [Page 105] Lands whereupon the Charge of them is fixed: So that for the present, they being Outed from the Benefit of the One, (the Commoners having lately made their Re-entry there) they can­not, during such Re-entry, and the Commoners holding, be compelled to the Charge of the Other. No Assignee is further chargeable by the Law, than he is Terre-Tenant: The Assignee of himself is no privy, but an extraneous Person: And present Possession, and an actual Estate, 1. in these particular Lands, is it must make him lyable, as Assetts 2. in general do the Heir.—But I would not herein be mistaken, for I take it, that Lovells Assignes have at present a Right in these Lands, though they have no Possession, and that in case they e­ver hereafter make use of this Right, they are the rightful Persons, that de Jure, ought to bear the Charge of these Works: And I could heartily wish it, that they would either undertake the One, or else wholly disclaim the Other. But this I say, that during their Outer from the Possession of these Lands, they are no wayes under the Power of the Commission, so as to be enforced to this [Page 106] Charge:—For their Right to these Lands, is no other, than what they may 1. waive, and 2. disclaim. And it is only a conditional Right, depending upon the performance of such Works as are altogether in their choice, either 1. to do, or 2. to desert▪ If they do Recover, they may Re-enter; and then all that can be said of them, is, that if they do Re-enter upon their former Estate, they must also Re-imburse, and Recompence what hath been done, and laid out by others in their De­fault.

But because some may imagine per­haps, that the Fen-Lands formerly in 4. The Fen-Lands. Lovells Possession, may be as yet lyable to the Charge of these Works. 4. I will therefore in the Fourth place, say something as to them.—And I shall confess, that these Lands whilst they were in the Possession of 1. Lovell, 2. his Heirs, or 3. Assignes, were charge­able; and that by express words in the Act of Parliament, he and they did hold the same subject to this Charge.

But these Lands being before Lovells intermedling, 1. clear, and un-lyable, and 2. such as wherein the Persons [Page 107] chargeable to this particular Work un­der your Enquiry never had any In­terest; Lovell neither 1. did, nor 2. could create a Charge thereupon, fur­ther than 1. as to his own Estate, and 2. whilst it was in his own Possession: His own Estate therein make subject he 1. might, and 2. did; but the Owners, and the Commoners, and their Rights therein, (as I have formerly spoken it upon another occasion from hence) he neither 1. did, nor 2. could, by a­ny Act of his, damnifie.—And there­fore, you may observe it, the words in the Act of Parliament are, That Lo­vell, his Heirs, and Assignes, shall hold the said Lands subject to the Charge of these Works. Expresly sig­nifying, that the said Lands were made subject to this Charge, whilst they were in 1. his, or 2. their holding, and no longer.

And to clear this above all exception: Upon such neglect and default of Lovell, his Heirs, and Assignes, as in the said Lawes is expressed, and accordingly certified, the Owners and Commoners may Re-enter upon these Lands, and them have and hold: Now I ask, How? [Page 108] The very words of the Law in this Point are clear and full; namely, as in their former Right, and as in their former Estate: But they, in their former Estate, were never chargeable to this Work; 'twas only Lovell undertook it: Nor now shall be upon their Re-entry, in case Lovell desert or neglect it: 'Twas Lovells Charge 1. originally, and 2. on­ly; none of theirs.

But to put this Point a little higher: First, Suppose that Lovells Assignes 1. should wholly 1. waive their Right, and 2. desert these Works; and should never hereafter 1. Recover, or 2. Re­enter: certainly in this case the Lords and Commoners of these Lands shall not be charged with other Works than of their own proper maintenance, and shall not at all be charged with foreign Works, that belong to other Towns, only because Lovell (who had some­times an Estate under limitation in these Lands, and that subject to Forfeiture too) of his own accord undertook them. Or Secondly, Suppose Lovells Assignes, during this their Outer, 1. should wholly disclaim their Right, or 2. that their Right should other-wayes [Page 109] be dis-annulled; and a new Composition should by the Lords, Owners, and Com­moners of these Lands, be made with a new Undertaker; doubtless they might do it with respect to their own Interest only, and are no wayes bound to treat Covenants therein, for the benefit of o­thers, because Lovell admitted them.

And now Gentlemen, To make some short Recapitulation of what I have hi­therto spoken to this Point: Clear it is, First, That the Fen-Lands sometimes Lovells, while they are in the Com­moners Possession, are not lyable to this Charge. Clear it is, Secondly, That Lovell is dead and gone, and so nore­lief from him. Clear it is, Thirdly, That Lovells Heirs for want of Assetts are not in Law responsable. Clear it is, Fourthly, That Lovells Assignes are, during their Outer from the Possession of these Lands, not compellable. Now this Work being of such present and ur­gent Necessity, what further is to be done in it? and where is it for the pre­sent to be charged?

Doubtless such Persons as were for­merly charged with this work before Lovells time, are now, during his neg­lect [Page 110] and failer, to perform it: And there is the more Equity as to this parti­cular Work; for that Lovell did free­ly, and of his own accord undertake this Work, without any Considerati­on whatsoever for it; and they upon whom this Work is chargeable, may in this respect only, well give Lovell, and his Assignes thanks, for freeing them so long from it for nothing. And for the better clearing of this, I shall, accor­ding to the Method I formerly pro­pounded,

2. How far other Persons, formerly lyable, are dis­charged. Not ab­solutely: 2. In the second place, declare unto you, How far this Charge upon Lovell, his Heirs, and Assignes, shall operate, as to the Discharge of the Persons for­merly lyable: And I take it to be clear,

That, as to the Persons formerly ly­able, there is 1. no absolute Discharge, 2. nor other Discharge at all, further But, ex re Facta, if Lovell do the Works.than Lovell, his Heirs, and Assignes, ex re Factâ, by doing of the Work on their behalfs, shall make the Discharge; that is, (to speak plainly) there is to them no Discharge at all, only a Co­venant to them there is, on Lovells part, that he will discharge them: There are [Page 111] no such words, either in the Laws of Sewers, or in the Act of Parliament; nor no such sense can be put upon them, as that the Persons formerly lyable, shall be discharged the Works: but on­ly, that Lovell, his Heirs, and As­signes, shall do the Works; and that Lovell, his Heirs, and Assignes shall them thereof discharge, acquit, exo­nerate, and save harmless: 1. which if he do, it is well; and it is his Cove­nant that he shall do it: 2. but if he do not, the Persons formerly lyable, may and ought, by the Court, upon his Upon Lovells neglect and fail­er, they may a­gain be charged with them.neglect and failer, be charged there­with; and they have their remedy o­ther-where against Lovell, for not do­ing what he undertook to do.—And I take this to be very clear, if ever the case be as now it is; that is, 1. if the Work be a Work of 1. antient, and 2. known Charge, as this is: and 2. if that Lovell, his Heirs, and Assignes, be none of them in a condition to be com­pelled thereunto; as we have formerly proved, that for the present they are not.—For certain it is, the Commissi­oners must not neglect these Works, because Lovell neglects them; neither [Page 112] must they suffer the Country to be lost and ruined for want of them, because Lovell, and his Heirs, are lost, and gone, and ruined in their Estates, and cannot do them; nor his Assignes com­pelled to do them.

So Gentlemen, Out of my Discourse hitherto, I hope I have sufficiently de­monstrated three things to you: The first is, that this Work is of present ne­cessity, and must be done. The second is, that Lovell, his Heirs, and Assignes, are none of them in a condition; so as de Facto, to be compelled to do it. The third is, that during this their Failer, the Work is to be done, and for the present is to be done by such Persons as were formerly chargeable thereto. Who the Persons formerly lyable to this par­ticular Work are.Now that I may close up this second part of my Discourse: 4. A fourth thing remains for you to Enquire of, that is, Who these Persons are that were formerly chargeable? This indeed is properly your work, but I shall crave leave, out of the antient Records of this Court, to inform you something a­bout it.

I do find, by three antient Inquisiti­ons, remaining here amongst the Re­cords [Page 113] of this Court: 1. the one without date, 2. the other Nono Edwardi Se­cundi, 3. the third Quarto Henrici Quinti, that the Charge of this River, from the beginning of Surfleet, (which hath been always accounted from New­bury) and so downwards to the Sea, 1. The Town of Sur­fleet.hath, and 2. ought to be born by the Town of Surfleet. These three antient Inquisitions, in express words, speak this Charge full and directly. 4. And the same Charge I find partly intimated likewise in a parcell of an old Inquisiti­on, taken 17. Edwardi 2 di. here also preserved. 5. The same Charge I find again full and direct, in an Inquisition, taken 6 to. Edwardi 6 ti. 6. And Last­ly, By Lawes and Orders of Sewers, Octavo Elizabethae, (the very Age Lo­vell begun his Work in) I do find, that consentient and pursuant to all the for­mer Inquisitions, the same in like manner was again charged and ordered upon the Lords, Owners, Free-holders, & Inhabi­tants of Surfleet, as hath been accustomed. And lest there should be any quarrel or question about the antient bound of the Sea, I do therein find the said River in express words (and I would have you [Page 114] take special notice of them) charged upon them of Surfleet, from Newbury, through Surfleet: to the Out-fall of the Water of Glean into the River of Welland; nothing can be more full or plain.—But because I would clear my self, so as to deal truly with you in this Point, and would not be suspected of partiality, or interest, I shall desire, that the Clerk of Sewers may read the Records them­selves to you, here in open Court; and you, upon his reading, may examine these Copies of them, for your use and direction.

Here the Clerk of Sewers read the Re­cords, and the Foreman of the Jury examined the Copies of them then delivered.

So Gentlemen, I hope you are all fully satisfied, as to the antient Charge of this River, both 1. before, and 2. to Lovells time: You have had all the antient Records that I know preserved in this Court, as concerning this parti­cular, produced in the case; and they all sufficiently attest it, and they all a­gree in their testimony.

Let not the several and different Names of this River trouble you.—Be­sides [Page 115] such Names 1. as it borroweth from the Towns through which it runs, as being sometimes called Pinchbeck Ri­ver, sometimes Surfleet River, some­times Basson River, or Basson-Ea, two o­ther famous names it hath, and as I have been informed, from two great Springs from whence it ariseth; the one of Burne, from whence it is called Burne-Ea, and Burne-old-Ea: the other (which I shall no wayes affirm, but as I have been by some told so only) of Glean, from whence it is called the River of Glean.—You see antient Inquisitions have often the name of 1. Basson-Ea, a Town not far distant from us, nigh which it runneth; and of 2. Burne-old-Ea, as being the Spring nighest us in these parts, from whence a great branch of it ariseth, and so to us best known: But in Lovells Law, it hath only the name of the 3. River of Glean, under which name accordingly we give it to you in Charge; and which Name, for that very cause, I would desire you to use in your Verdict and Presentment. But certain it is, call it the River of Glean, Basson-Ea, Burne-Ea, or what other Name you please, that from the [Page 116] In-fall of Burne Water, (nigh the place where St. Nicholas his Cross, and Cap­tain Lovells own House heretofore stood) and so downwards to the Sea, 'tis all but one and the same Chanell; so that this difference of Names need not trouble you; for as to this part of the River under your Enquiry, they are all of them but several Names of the same River, imposed in respect 1. of the se­veral Fountains from whence it ariseth, or 2. in respect of the several Towns through which it passeth; and in some Records one Name is used, in some another.—And having spoken this for the better understanding of the Re­cords, I have altogether done with the second part of my Discourse, concern­ing the Persons upon whom this Work is to be charged.

3. The Manner of the Charge. And so I come to the third part of my Discourse, concerning the manner of this Charge, to wit, How it is 1. to be Imposed, 2. and Born.

In the fore-going part of my Dis­course, I have told you, that this Ri­ver, from Newbury, to its Out-fall, is to be charged for the present upon the antient Charge-bearers: But so,

[Page 117] 1. No more to be Impo­sed, but the an­tient Charge of 1. First, As you lay no more but the antient Charge upon them; For in case Lovell, or his Assignes, have any wayes enlarged this River, they are not bound to maintain those Enlargements, but only its antient Chanel; and to as­certain this, you are to Enquire into the antient proportion of this River; and what was formerly, and before Lovells time, its antient depth and bredth: And to use few words, 'tis to 6. Foot deep, 40. Foot wide, if the old Banks permit.be 1. six Foot deep at the least, as ap­pears by the Inquisition 6. Edwardi 6 ti. and to be 2. forty▪ Foot wide, from Cate-Bridge, (a place near Basson) downwards to the Sea, if the old Banks will so permit; as appears by the Or­ders of Sewers 8. Elizabethae: And in the antient Inquisition 17. Edwardi 2 di. a particular Reason is rendred, why it should be of this wideness, from the House as then of one Richard Cheyle, (probably standing either 1. a­bout, or 2. above Newbury) down­wards: Quià conveniens est, quòd cur­sus Aquae in suo exitu sit largior quam in suo introitu.

2. And Secondly, The Owners and Inhabitants of the Town of Surfleet, [Page 118] out of my precedent Discourse, suffici­ently appear to have been the antient Charge-bearers, and upon whom the Work at present is to be charged: But the Records express no more, than in 2. The Manner how that Charge was born to be En­quired after, whether by 1. Acridge or 2. Fron­tage, or 3. Agist­ment, or 4. Com­monage.general words, 1. a Charge only upon the Town of Surfleet, or a Charge 2. upon the Lords, Owners, Free­holders, or Inhabitants of Surfleet. Now I would have you Enquire into the antient Manner of that Charge, and how it was formerly born, whether 1. by Acridge, 2. or by Frontage, 3. or by Agistment, 4. or by common Men-Works; doubtless, by one, or some of these wayes it was born: And you are to inform the Court, 1. by which, and 2. how much of the same; by any of which in particular: so that the same antient Charge may be imposed in the same manner it antiently was, and in no other. And so much concerning the grand Business of your Charge and En­quiry.

Now if any of you ask, why no more Why no more of this Ri­ver, but this part of it only put upon Enquiry,of this River is put upon your Enquiry, than this part of it from Newbury to the Sea? I shall answer: First, That this [Page 119] part is in the greatest Decay. Second­ly, That this part being in Decay, is of the greatest Mischief, and is the sole cause of most of the Mischiefs afore­said. And Thirdly, That this part of it must first be repaired, as being the Out-fall to the rest; here the Work must of necessity be begun: And when this shall be effected, I doubt not, but, as some recompence of your labours, you shall see Glean, with very small re­pairs above, 1. an useful, 2. a com­modious, 3. and a pleasant River a­gain.

And as it is your main Business to ob­serve this River, and to Enquire into 1. the Defects of it, and 2. the Charge of it; so that 1. the Waters, 2. and Boats, may have a clear, and a free, and an interrupted Current and Passage in it again: So I would have you also take some notice of the great Bridge Surfleet Bridge.that is over it at Surfleet; to two ends would I have you observe this Bridge: First, To cause the Water to pass under it again, as antiently it hath done, and as of right it ought. And Secondly, To cause safe Land-Passage over it again; and to that end to take notice of the 1. [Page 120] Ruines, or 2. other Decayes thereof, and to Present them upon such Persons as ought to Repair them.

The par­ticular Inconve­niencies upon Hol­land, and therein upon the two Towns of Pinch­beck and Spal­ding. I have observed, that in all great Works and Undertakings, both 1. the Contrivance of the Works themselves, and 2. the Mischiefs upon the Failer, have alwayes fallen heavy upon this Country of Holland; and in a special manner upon the two Towns of Pinch­beck and Spalding. I may truly say, we have alwayes been, In Parte Deteriori. 1. Whose Pastures have been cut asun­der, mangled and spoyled, by the ma­king of their Draynes, but ours? 2. Whose Grounds have been socked, by the running of their Draynes, but ours? 3. Whose Towns have been, yea at pre­sent are, over-flowed and drawned, by the breaking of their Banks, or by the miscarriage of their other Works, but ours? And upon Failer, 1. they of Ke­steven can suffer no more than in the loss of their Commons; 2. 'tis we in Holland that do suffer in the loss of our Towns: They may suffer in their Fens, 'tis we that suffer in our Estates and Habitati­ons.—So that both 1. the Work of Drayning, 2. and the Neglect of [Page 121] Drayning, though in different degrees, yet if in any thing, or any where mis­chievous, 'tis so to us here in Holland: And if any where in Holland, 'tis so to these two Towns of Spalding and Pinch­beck: For besides 1. the particular mis­chief, which alwayes falls 1. first, and 2. heaviest upon these two Towns; and is now fallen upon them, to the utter ruine and undoing of many particular Persons and Families; and it may be, to the very desertion and desolation of the Towns themselves; three Parts of one of them is at this very instant depo­pulate and forsaken; both 1. Man, and 2. Beast, are fled and gone. 2. They must, I say, besides their suffering under it. be at all the Charge too for the reme­dy of it, or else it must rest upon them. Other Towns as rightfully concerned in Works of Sewers, for the removing of it as they, without a compelling Power, will do just nothing.—And doubtless, had other Towns (as rightfully concern­ed in the Charge as these) 1. born their equall share to such Works as have been done, 2. and had done such other Works as they ought to have done, these Towns had not been such a sad spectacle [Page 122] as now they are; nor in a such a sad, wofull, drowned condition, as now they are in.

To conclude: 1. The great Mischief that now at present is upon these two Towns, and a great part of it 1. caused, or 2. continued at least, by reason of this Obstruction of the River of Glean in its Out-fall: 2. And the Persons at whose Charge it ought for the present to be removed, you have heard declared unto you at large; 'tis now put upon your Enquiry, what you will find. I doubt not, but you will well consider, 1. both the miserable and calamitous Condition of these Towns, 2. and the urgent Necessity of the Work; and that you will Present it upon such Persons, 1. as may be compelled to do it, and 2. during the failer and neglect of Lovell, of right ought to do it: No more is re­quired of you, and I hope you will do no less.