Front Page Titles (by Subject) The Case of the Isle of Ely. - Selected Writings of Sir Edward Coke, vol. I
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The Case of the Isle of Ely. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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The Case of the Isle of Ely.
(1609) Michaelmas Term, 7 James I Before the Justices of the Court of Common Pleas. First Published in the Reports, volume 10, page 141a.
Ed.: The Commissioners of Sewers decreed that a new, seven-mile-long river should be cut through the fens, and ordered that the new river be paid for by a tax they levied on fifteen towns. The Privy Council referred the case to Coke and the Common Pleas for a determination of whether the Commission had the powers necessary to do this. Coke applied the Parliamentary acts creating the commission and giving it authority and resolved that it only had the power to repair damage to existingwatercourses and not to make new ones. Further, it only had the power to assess individuals according to the benefit the individualsreapedfromtheprotection of the sewers.
A Case was referred by the Lords of the Councel to Coke, Chief Justice, Daniel and Foster, Justices of the Court of Common Pleas, concerning a Decree made by the Commissioners of Sewers, for the making of a new River within the Isle of Ely; and in effect the case was such. The Commissioners of Sewers had decreed, That a new River should be cut out of the old River of Owse, and through the main land within the same Isle, for seven miles unto another part of the same River: And for the doing thereof, they had severally taxed as well Fen, Drayton, Samsey, Over-Wivelingham, Rampton, Cottenham, and nine other Towns within the County of Cambridge, out of the Isle, as the Inhabitants of the said Isle, and the tax was general, sc. so much of one Town, and so much of another, and sic de singulis.1
And in this Case two Questions were moved: 1. If the Commissioners of Sewers might by force of their Commission make a new River, or not.
2. If such general taxation upon the Towns was lawful, or not.
As to the first, it is to see what might have been done by the Common Law before any Statute made thereof. And it is to known, That by the Common Law, before the Statute of 6 Hen. 6. cap. 5. the King of Right ought to save and defend his Realm, as well against the Sea, as against the Enemies, that the same be not drowned or wasted: And also to provide, that his Subjects have their passage through the Realm by Bridges and Highways in safety. And therefore if the Sea-walls be broken, |[141 b] or the Sewers or Gutters are not scoured, that the fresh waters cannot have their direct course, the King ought to grant a Commission to enquire and to hear and determine these defaults. Which Commission appeareth in the Register, amongst the Commissions of Oyer and Terminer; in which it is said, Nos eo quod ratione dignitatis nostrae Regiae ad providend’ salvationi Reg’ nostri circumquaque sumus stricti, &c.2 And with that agreeth the Statute of 6 Hen. 6. cap. 5. and the Statute of 23 Hen. 8. Cap. 5.
And see a notable Precedent Pasch. 44 Edw. 3. Midd. 2. cor’ Rege, praecept’ est vicecom’ quod distringat A. B. & alios quod ipsi defectus walliarum erga terras suas reparant, et si ipsi sufficientes non fuerunt, quod distrin’omnestenentesterrar’, &c. qui defension’, commod’, salvamen, vel damnum ratione reparat’ seu non reparation’ walliae praed’ habent seu aliquo modo habere poterint, ita quod quilibet tenentium praed’ juxta quantitatem tenurae suae ibid’ contributionem praefat’ A. B. et aliis ad wallias illas faciend’ & reparandas faciant indilate:3 Which Record was before any Act of Parliament that limited any form of Commission.
The second thing observable in the said Commission at the Common Law, is this clause, Ad hujusmodi wallias, fossata, gutterus, sueras, pontes, calceta, et gurgites in locis necessariis reparand’ & quotiescunque et ubi necesse fuerit de novo facienda:4 By which it appeareth that by the Commission in the Register at the Common Law, that the ancient walls, gutters, or Sewers might be repaired or new made; but no new walls, gutters, or Sewers, by force of the said Commission might be made. Then it is to see in what cases the Statutes have made provision in these cases. And it is to know, That the Statute of 6 Hen. 6. cap. 5 doth enlarge the said Commission which was at the Common Law: for where these words (de novo facienda)5 refer onely to old Walls, Gutters, Sewers, &c. the said Act hath these words & eadem et alia quotiescunque, et ubi necesse fuerit de novo facienda;6 which words (et alia)7 being added to the former Commission, give to the Commissioners power to make new Walls, Gutters, Sewers, &c. but this Act did not endure but ten years; and by 18 Hen. 6. cap. 10 the like Commission was established for ten years; and by 23 Hen. 6. cap. 9. for fifteen years; and by 12 Edw. 4. cap. 6. for fifteen years; and by 4 Hen. 7. for twenty-five years; and by 6 Hen. 8. c. 10. for ten years, and until the next Parliament. And afterwards the Statute of 23 Hen. 8. cap. 5. was made, which reciteth none of the former Acts as the others do, but enacteth, That there shall then after a Commission of Sewers “according to the manner, tenor, form, and effect hereafter ensuing,” and rehearseth the form of the Commission de verbo in |[142 a] verbum:8 which Commission omiteth the said words (& alia) and followweth the Commission in that point which was at the Common Law. The words of the Act of 23 Hen. 8. being, “And also to reform, repair, and amend the said Walls, Ditches, Banks, Gutters, Sewers, &c. and the same (omitting these words, and other) as often, and where need shall be, to make new.” And the former clause concerning execution of the former Statute and Ordinances, is restrained with these words (touching the premises,) which refer onely to repair the old Walls or Sewers, or to make them new. And also a subsequent clause, That all and every Statute, &c. heretofore made concerning the premises, (which restraineth that clause ut supra9 ) not being contrary to this present Act, nor heretofore repealed, shall stand and be good and effectual for-ever. So that it was Resolved by the Justices, That by force of the said Commission founded upon the Act of 23 Hen. 8. the Commissioners could not make the said new River out of the main land for four causes.
1. That this Act doth prescribe the manner and form of the Commission in express words, which extends onely to the reparation and new making of old walls, gutters, &c.
2. That these words, et alia, which were included in the statue of 6 H. 6. and all the said Acts are left out of this commission.
3. All the former Acts were for a time, but this Act which establishes this Commission, is made perpetual by the statute of 3 Edw. 6. c. 8. and therefore it shall be hard to enlarge it beyond the words, and to give power to Commissioners to try inventions at the charges of the Country, which perhaps shall never take good effect, but via trita est tutissima.10
4. It appeareth by the Register in the writ of Ad quod damnum,11 fo. 252. and F. N. B. 225E. That if an old Ditch or Trench coming from the Sea to a Town, by which Boats or Vessels use to pass to the said Town; now if it is stopped by the outrage of the Sea, and a man would sue to the King to have leave to make a new trench, and to stop the old trench, he ought first to sue Ad quod damnum, to know what damage it shall be to the King or others: By which, and by the Writ in the Register de antiqua trenchea obstruenda et nova facienda seu habenda,12 it appeareth that no new trench or river which runneth to the Sea, can be made without the writ of Ad quod damnum, and thereupon to obtain the Kings licence to do it. For if any Commissioners might do it ex officio,13 great inconvenience thereupon for private gain as well as for publick damages as stopping of Havens (which are the gates of the Kingdom), |[142 b] and other common Rivers, as particular nuisance and prejudice to private men, by drowning of their lands and Inheritance, And therefore such new Rivers cannot be made without the Kings Licence, grounded upon a Writ of Ad quod damnum. See Vide the Writ of Ad quod damnum in such case, quia optimum.14
But it was resolved, That new Inventions, as of an artificial mill to cast out the water, or of a great River out of the main Land, and other the like, are not warranted by the said Commission upon the said Act of 23 H. 8. quia nihil semel inventum est et perfectum;15 So when an old Sewer is newly to be made or cleansed, some small alteration in respect of the natural change of the current, or otherwise for the publick good of such place (and so in the like cases) may be made. So when an old wall by the extreme rage of the water is broken, to preserve the lands withinthesame Level from inundation, another wall, in case of inevitable necessity for the publick good of that part, may be made to defend the people and their Lands within the same Level. For this manner of defence by walling is no new invention, but the old way and mean well approved of by experience, and upon the matter it is but a new making of the old wall in a place by inevitable necessity more fit than the other. But If by the timely reparation of the old wall, the extreme danger may be avoided, no other ought to be made; for si assuetis mederi possis, nova non sunttentanda:16 but when new inventions are proposed, as is aforesaid, if they are apparently profitable, no owner of the land there will deny to make contribution for his advantage; and then the same ought to be made by a voluntary consent, and not by constraint by force of the said Commission of Sewers upon the said Act of 23 H. 8. But sometimes when a publick good is pretended, a private benefit is intended. And if any such new invention is in truth (quod raro aut nunquam fit)17 good for the Commonwealth, and yet no consent can be obtained for the making of it, then there is no remedy but to complain in Parliament, and there to provide relief, as Sir John Popham, late Chief Justice of England, did, who exhibited a bill in Parliament anno 3 Jac. for making a new River in the said Isle, which he himself upon his great charge begun, knowing that without an Act of Parliament, none could be forced by force of the Commission of Sewers, to contribute to such new attempt. But the Bill was utterly rejected.
Also, It was Resolved that none can be taxed towards the reparation, but those who have prejudice, damage, or disadvantage by the said nuisances or defaults, and who may have |[143 a] benefit and profit by the reformation orremoving of them. Also the Tax, Assessment, and charge ought to have these qualities. 1. It ought to be according to the quantity of their lands, tenements, and rents, and by number of acres and perches. 2. According to the rate of every persons portion, tenure, or profit, or of the quantity of the Common of pasture, or of fishing, or other commodity. And therefore it was clearly Resolved by them, That the said tax generally of a several sum in gross upon a Town is not warranted by their Commission, but it ought to have been particular, according to the express words, upon every owner or possessor of lands, tenements, rents, &c. observing the qualities aforesaid.
And it is to be observed, That there are three manner of Statutes which concern Sewers: The first consisting in defendendo et reparando wallias, seweras, &c.18 The 2. in destruendo et amovendo nocumenta, &c.19 The 3. which concerneth both the points, tam in destruendo quam in defendendo.20 Of the first sort are Magna Charta, c. 15 & 16. 6 Hen. 6. c. 5. 18 Hen. 6. c. 10. 23 Hen. 6. c. 9. 12 Edw. 4. c. 6. 4 Hen. 7. c. 8. 6 Hen. 8. c. 10. Of the second sort are Magna Charta, c. 23. 25 Edw. 3. c. 4. 45 Edw. 3. c. 4. 1 Hen. 4. c. 12. 9 Hen. 6. c. 9. 12 Edw. 4. c. 7. of the third sort of Statutes, which concern both the former sorts, are 23 Hen. 8. c. 5. 25 Hen. 8. c. 10. 3 Edw. 6. c. 8. and 13 Eliz. c. 9.
Part Eleven of the Reports
The Eleventh Part of Coke’s Reports was published in 1615, and it was the last volume to be published during Coke’s lifetime. It was originally published entitled La unzime part des reports de Sr. Edw. Coke chivalier, chiefe justice Dengleteere des plees destre tenus devant le roy mesme assignee & del Counseil Prive d’Estate, des divers resolutions & judgments donez sur solemnes arguments & avec grand deliberation & conference des tres-reverend judges & sages de la ley, des cases en ley queux ne fueront unques resolve ou adjudges par devant, et les reisons & causes des dits resolutions & judgments. Publié en la unziesme an de treshaut et tresillustre Jaques roy Dengleterre, France, & Ireland, & de escosse le 49. Le fountaine de tout Justice & la vie de la Ley. In English, The Eleventh Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of England, of the Pleas assigned to be held before the King Himself, and of the Privy Council of State, of divers Resolutions and Judgments given upon solemn Arguments, and with great deliberation and Conference of the reverend Judges and Sages of the Law, of Cases in law which were never Resolved or Adjudged Before, and the Reasons and Causes thereof. Published in the Eleventh year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 47., the Fountain of all Justice, and the life of the Law. The topics essentially are unchanged from prior parts.
Epigrams from the Title Page:
Prov. cap. 11. vers. 3.
Simplicitas justorum diriget eos; & supplantatio perversorum vastabit eos.1
Prov. cap. 12. vers. 3.
Non roborabitur homo ex impietate; radix autem justorum non commovebitur.2
Compendaria res improbitas, virtus longa. Compendia, sunt dispendia.3
[1. ][Ed.: and likewise concerning each.]
[2. ][Ed.: Inasmuch as by reason of our royal dignity we are strictly (bound) to provide for the safety of our realm, etc.]
[3. ][Ed.: the sheriff is commanded to distrain A. B. and others that they repair the defects in the sea-walls next to their lands, and, if they are not sufficient, to distrain all the tenants of the lands etc. who have or in any way might have defence, benefit, safeguard or damage by reason of the repair or non-repair of the aforesaid walls, so that each of the aforesaid tenants should without delay make contribution to A. B. and the others, according to the quantity of his tenure there, towards making and repairing those walls.]
[4. ][Ed.: For repairing such walls, ditches, gutters, sewers, bridges, causeways and weirs in necessary places, and as often and wherever need arises to renew them.]
[5. ][Ed.: to renew them.]
[6. ][Ed.: and as often and wherever need arises to renew them and make others new;]
[7. ][Ed.: and others.]
[8. ][Ed.: word for word:]
[9. ][Ed.: as above.]
[10. ][Ed.: the beaten path is the safest.]
[11. ][Ed.: Royal writ directing the sheriff to ascertain the damage that would be done to a town, if a right to hold a fair is granted in the town.]
[12. ][Ed.: for obstructing an old trench and making or having a new one,]
[13. ][Ed.: by virtue of office,]
[14. ][Ed.: because it is the best.]
[15. ][Ed.: nothing is perfect at the time when it is invented;]
[16. ][Ed.: if you can put right the familiar things, you should not try out something new;]
[17. ][Ed.: which is rarely or never done.]
[18. ][Ed.: defending and repairing walls, sewers, etc.]
[19. ][Ed.: destroying and removing nuisances, etc.]
[20. ][Ed.: both in destroying and in defending.]
[1. ][Ed.: The integrity of the upright shall guide them, and the perverseness of wrongdoers shall destroy them [Proverbs, xi. 3].]
[2. ][Ed.: A man shall not be established by wickedness; but the root of the righteous shall not be moved [Proverbs, xii. 3].]
[3. ][Ed.: Wickedness is short, virtue long. Profits are to be paid for.]