the case of the isle of Ely a case be refer by the lord of the Council to coke  chief justice Daniel and foster justice of the court of common plea concern a  decree make by the commissioner of sewer for the make of a new river within  the isle of Ely and in effect the case be such the commissioner of sewer have  decree that a new river shall be cut out of the old river of owse and through  the main land within the same isle for seven mile unto another part of the  same river and for the do thereof they have several tax as well fen Drayton  Samsey over Wivelingham Rampton Cottenham and nine other town within the  county of Cambridge out of the isle as the inhabitant of the say isle and the  tax be general know so much of one town and so much of another and such de one  and in this case two question be move if the commissioner of sewer may by  force of their Commission make a new river or not if such general taxation  upon the town be lawful or not as to the first it be to see what may have be  do by the commonlaw before any statute make thereof and it be to know that by  the commonlaw before the statute of Henry cap the king of right ought to save  and defend his realm as well against the sea as against the enemy that the  same be not drown or waste and also to provide that his subject have their  passage through the realm by bridge and highway in safety and therefore if the  Sea-walls be break or the sewer or gutter be not scour that the fresh water  can have their direct course the king ought to grant a Commission to inquire  and to hear and determine these default which Commission appear in the  register among the commission of oyer and terminer in which it be say our  eastern quoth ration rank our men  a royal palace and providend salvation reg  our men  circumquaque to be to draw tight c and with that agree the statute of  Henry cap and the statute of Henry cap and see a notable precedent pasch  Edward Mid cor king take or receive in advance be vicecom quoth  to draw asunder a b elsewhere quoth Self diminution walliarum towards land  urge to get again et si Self sufficient non to be quoth  distrin'omnestenentesterrar c who defension convenience salvamen well damnum  ration prepare again seu non reparation walliae pillage to have seu  to some place  modus to have goblet ita quoth who to hold pillage juxta  magnitude tenure of oneself ibis payment say beforehand advance a b et other  and wallias that faciend to get again to make indilate which record be before  any Act of parliament that limit any from of Commission the second thing  observable in the say Commission at the commonlaw be this clause and hujusmodi  wallias ditch gutterus suer pontes plant  et whirlpool in region relative  reparand whenever et where necessary to be de to make new to make by which it  appear that by the Commission in the register at the commonlaw that the  ancient wall gutter or sewer may be repair or new make but no new wall gutter  or sewer by force of the say Commission may be make then it be to see in what  case the statute have make provision in these case and it be to know that the  statute of Henry cap do enlarge the say Commission which be at the commonlaw  for where these word de to make new to make refer only to old wall gutter  sewer c the say Act have these word by the same route et other whenever et  where necessary to be de to make new to make which word et other be add to the  former Commission give to the commissioner power to make new wall gutter sewer  c but this Act do not endure but ten year and by Henry cap the like Commission  be establish for ten year and by Henry cap for fifteen year and by Edward cap  for fifteen year and by Henry for twenty five year and by Henry c for ten year  and until the next parliament and afterward the statute of Henry cap be make  which recite none of the former act as the other do but enact that there shall  then after a Commission of sewer accord to the manner tenor from and effect  hereafter ensue and rehearse the from of the Commission de word in word which  Commission omit the say word other and follow the Commission in that point  which be at the commonlaw the word of the Act of Henry be and also to reform  repair and amend the say wall ditch bank gutter sewer c and the same omit  these word and other as often and where needs shall be to make new and the  former clause concern execution of the former statute and ordinance be  restrain with these word touch the premise which refer only to repair the old  wall or sewer or to make they new and also a subsequent clause that all and  every statute c heretofore make concern the premise which restrain that clause  ut above not be contrary to this present Act nor heretofore repeal shall stand  and be good and effectual forever so that it be resolve by the justice that by  force of the say Commission find upon the Act of Henry the commissioner can  not make the say new river out of the main land for four cause that this Act  do prescribe the manner and from of the Commission in express word which  extend only to the reparation and new make of old wall gutter c that these  word et other which be include in the statue of h and all the say act be leave  out of this commission all the former act be for a time but this Act which  establish this Commission be make perpetual by the statute of Edward c and  therefore it shall be hard to enlarge it beyond the word and to give power to  commissioner to try invention at the charge of the country which perhaps shall  never take good effect but way third string be to look at it appear by the  register in the writ of and quoth damnum foe and f n b e that if a old Ditch  or trench come from the sea to a town by which boat or vessel use to pass to  the say town now if it be stop by the outrage of the sea and a man will sue to  the king to have leave to make a new trench and to stop the old trench he  ought first to sue and quoth damnum to know what damage it shall be to the  king or other by which and by the Writ in the register de ancient trenchea  obstruend et new to make seu to have it appear that no new trench or river  which run to the sea can be make without the writ of and quoth damnum and  thereupon to obtain the king licence to do it for if any commissioner may do  it ex duty great inconvenience thereupon for private gain as well as for  public damage as stop of haven which be the gate of the kingdom and other  common river as particular nuisance and prejudice to private man by drown of  their land and inheritance and therefore such new river can be make without  the king licence ground upon a Writ of and quoth damnum see vide the Writ of  and quoth damnum in such case because optimum but it be resolve that new  invention as of a artificial mill to cast out the water or of a great river  out of the main land and other the like be not warrant by the say Commission  upon the say Act of h because nothing semel invention be et a finishing so  when a old sewer be new to be make or cleanse some small alteration in respect  of the natural change of the current or otherwise for the public good of such  place and so in the like case may be make so when a old wall by the extreme  rage of the water be break to preserve the land withinthesame level from  inundation another wall in case of inevitable necessity for the public good of  that part may be make to defend the people and their land within the same  level for this manner of defence by wall be no new invention but the old way  and mean well approve of by experience and upon the matter it be but a new  make 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 avoid no other ought to be make for si to which one is accustomed to heal  to be able new non sunttentanda but when new invention be propose as be  aforesaid if they be apparent profitable no owner of the land there will deny  to make contribution for his advantage and then the same ought to be make by a  voluntary consent and not by constraint by force of the say Commission of  sewer upon the say Act of h but sometime when a public good be pretend a  private benefit be intend and if any such new invention be in truth quoth  seldom or never fit good for the commonwealth and yet no consent can be obtain  for the make of it then there be no remedy but to complain in parliament and  there to provide relief as sir John Popham late chief justice of England do  who exhibit a bill in parliament year  James for make a new river in the say  isle which he himself upon his great charge begin know that without a Act of  parliament none can be force by force of the Commission of sewer to contribute  to such new attempt but the bill be utter reject also it be resolve that none  can be tax towards the reparation but those who have prejudice damage or  disadvantage by the say nuisance or default and who may have benefit and  profit by the reformation orremoving of they also the tax assessment and  charge ought to have these quality it ought to be accord to the quantity of  their land tenement and rend and by number of acre and perch accord to the  rate of every person portion tenure or profit or of the quantity of the common  of pasture or of fish or other commodity and therefore it be clear resolve by  they that the say tax general of a several sum in gross upon a town be not  warrant by their Commission but it ought to have be particular accord to the  express word upon every owner or possessor of land tenement rend c observe the  quality aforesaid and it be to be observe that there be three manner of  statute which concern sewer the first consist in to ward off et to get again  wallias seweras c the in to tear down et to move away nocumenta c the which  concern both the point tam in to tear down how in to ward off of the first  sort be great Charta c Henry c Henry c Henry c Edward c Henry c Henry c of the  second sort be great Charta c Edward c Edward c Henry c Henry c Edward c of  the three sort of statute which concern both the former sort be Henry c Henry  c Edward c and Elizabeth c