A Breviate of the Cause depending, and proofs made before the Committee of the late Parliament for the Rens, by the Inhabitants between born and Kime Eae, in the County of lincoln, being Lords, Owners and Commoners of, and in the several Fens, wherein Sir William Killigrew, &c. pretends a Title as Sharers with the late earl of Lindsey. IMprimis, The Undertakers proceeding was illegal, being Judges and Parties. Secondly, the Tax was laid by Command from the King, and not according to the Commission of Sewers of 23 H. 8 by View and Jury, nor with the consent of the Owners and Commoners, but against it, contrary to the 43. of Eliz. Thirdly, the Tax was unequal, incertain, and insufficient in Law, purposely so laid, that the Owners might not pay it; but we desire the Undertakers title to the Lands in question be referred, and left to the determination of the Law, such a mercy as the Owners and Commoners could not have expected, had the Undertakers power prevailed. Now for matter of fact, which is yet to be resolved of, we the Owners and Commoners declare and prove as followeth; which proofs and before the present Committee, every proof marked Nom. as followeth. Imprimis, the Owners and Commoners say, that the Fens and severals in question, were not hurtfully surrounded, but usefully drained by their ancient Goats, sluices, and drains which they from time to time widened, and depened as occasion served, and needed no Undertaker, had not that Court project interrupted them these many years. 1. Proved the Countries constant draining themselves by widening and deepening their ancient drains and Goats, by those ancient Records mentioned in the clerk of Sewers book, marked Nom. 62 That they were not hurtfully surrounded. 2. Proved by a Verdict of 25 Men, dated the 16 of Ian. 5. Car. before Mr. Ellis, Non.— 37 3. By divers witnesses before Mr Ellis, from Fol. 92. to Fol. 107. 4. By the note of our ancient Drains, 21 Goats, and sluices, marked Nom.— 7 5. By the Testimony of Sir Anthony Irby, and others who witness, that when the decree of judgement was given, that the Undertakers had drained the Fens, there was no outfal cut into the Sea, but what was anciently by the Owners and Commoners, as appears, Fol. 114. and 115.   By the Map of the Country, we can plainly demonstrate, that the grounds that lay as subject to drowning as the Fens do, was built of, ploughed, sown, and let yearly for 1 l. the Acre, some for 10 s. the Acre, and 6 s. 8 d. marked 81 Before the said Verdict one Sir Anthony Thomas, with others, was by the King commended to be Undertaker; the Commissioners then proceeded legally to inquire by Jury, and to contract with the Lords, Owners and Commoners consents, for such grounds as were hurtfully surrounded, which the Earl of Lindsey never meddled withal. Witness to the first part the Kings first letter dated 16. of Jun. 1629. No. 53 2. Witness Sir Antho. Irbies Letter &c. in ans. to the Kings, marked No. 65 And Sir Anthonies testimony to the Committee. The Undertakers design not being countenanced by Law, they conjure up Prerogative, and an arbitrary power to command the Commissioners to lay greater Taxes, and to review, not consulting with the Owners, nor the Law; Sir Robert killigrew, Sir William Killegrews father, was a procurer of those Letters from the King to carry on this design— Proved by the K. Letter dated the 12. of Feb. 8. Car. No. 15     The project being thus set, Robert Earl of Lindsey, Sir Robert killigrew, Sir William killigrew, and Robert Long Esq; procures the King to commend them Undertakers, the Commoners not sending for them. Proved by the K. letter dated the 18. of Apr. 9. Car. No.— 16 This design not finding such favour amongst the Commissioners as was expected, the Undertakers procured a third Letter to commend Robert Earl of Lindsey, Lord Lieutenant of the County, sole Undertaker, conceiving his power would better prevail then strangers, and that the other three might act as Commissioners, and so make their own bargain, and contrive their own Laws, which they effectually did, they by a secret combination having equal interest with the Earl.— Proved by the K. letter dated 2. of April, 11. Car. Nom.— 13 Proved by Mr. Deaths dead, dated the 25 of May 13. C. No. 69   By Sir Edw. Heron & Mr. Nich. Loves dead dated 30 of Novemb. 13 Car. Nom.— 71 This design being thus evilly set, was violently and evilly prosecuted: 1. They procure themselves friends and sharers, to be Commissioners, viz. the Earl himself, Sir Robert killigrew, Sir William killigrew, Mr. Robert Long, Sir Edward Heron, Sir John brook,( the Lord Willoughby, Sir Pereorine Bartue, the Earls sons and sharers, Mr. William Langton; these acted, these appeared to be sharers, so soon as the Earl had an interest, they could not appear sooner, and appearing so soon as they did, which was before judgement; can any imagine but they were in the design at the first? The Commission dated 8. Ian. 9. Ca. proves them Commissioners & of the Quorum Non.— 43 Sir Peregrine Bartues accounts proveth contributers to the work before judgement. No. 9 & 11 2. They revoke a former Tax of 5 s. the Acre, & by command from the King, lays a tax of 13 s. 4 d. the Acre, they ruling the rest of the Commissioners. Proved by their decree of Repeal, No— 67 And their decree of tax of 13 s. 4 d. the Acre, dat. the 26 of Feb. 8 Carol. 65 3. The view of what ground was surrounded, which was the foundation of their design, was notorious, and corrupt, and putrefied all the rest; for the Earl himself, his Son the Lord Willoughby, Sir Edw. Heron, Sir John Brooks, William Langton, and Robert Long Esq; were Viewers: The Object lay so near their covetous corrupt eyes, that they took Land for Water; in which view they unworthyly use Sir William Armins name to certify with them, who never viewed. Proved by their Decree of view, dat. the 2. of Mar. 1632. marked No.— 70. And by Sir William Armins testimony before the Committee. 4. Being Judges and parties, as before, and having laid their foundation, & built up the walls of their works themselves, they get other Commissioners to help them to cover and roof it, themselves being still Master-workmen, as appears by their several decrees afterwards made, where they sell our Land without our consents, and against them, the Cause grounded from their own corrupt view, which being illegal, & corrupt, al decrees grounded thereon, as these were, must needs be so. Proved some of the said parties Commissioners in their Decree, dat. 18. Apr. 1635. which upon the Kings letter decreed the Undertakers 24000. Acrees out of 72000. No. 81 The Decree for bounding, 1. Aug. 13. Car. the Commssioners were most sharers. Nom.— 74 The Decree for Exchange. Nom.— 73 The Decree of 14000. Acres. Many sharers. No.— 68 The Decree of Iudgement 14. Mar. 14. Car. which was before any outfall cut as before Many sharers. No. 6● They discharge men from Messengers signing Writings contrived by themselves without privity of Court. Proved before Mr. Ellis, from Fo.— 54 to 7● 5. To support their Injustice, they bribe the King with 3000. Acres, the Queen with 500 Acres, the Lords of the Counsel ( viz) Lord Keeper, Lord Cottington, Lord Dorset, Secretary Windbank( and others as they call them, well deserving Gent) hereby they were enabled to gain the Kings Letters, Acts of State, Counsel Table Orders to perplex and terrify the Owners, and to force their consents by imprisonments, and threats of Star-Chamber suits. Proved the Queens bribe by a dead 18. March. 14. Caro. Proved the bribes before Mr. Ellis fol. 35. 36. & 37. Proved the Kings bribe by the clerk of the Sewers book at the Sessions held at Sleeford, 14. and 15. daies of June, 1633. No. 61 Proved their Orders, dat. 12. of June 1640. 8 And the 23. of July, 1637. No.— 59 The 25. Octob. 1639. No.— 19 Proved their Imprisonments, &c. before Mr. Ellis, as appears by the Depositions from fol. 38. to fol. 55 6. They sold our Lands for fix pounds the Acre, before the work done, and the tax was but thirteen shilling four pence the Acre; and gave our Lands away by Will, before the Contract made.— In nono Caroli, witness a dead between Tho. Killagrew and Rich. red marked Nom.— 25 They tax 36000 Acres at 13 s. 4 d. the Acre which comes to 24000 l. for which tax they were to perform the work; they take 14000 Acres, which at their own price after 6 l. the Acre comes to 84000 l. and is really worth 140000. 7. Mr. Long sold his share before the work begun for 1500 l. and had 500 l. per annum for carrying on the design. Witness a dead dat. 30. Nov. 13. Car. between Mr. Long, Sir Edward Heron, Mr. Love, &c. Nom.— 17 8. Sir Peregrine Bartue sold one share to Mr. Death for 1100 l. Witness Mr. Deaths dead, Nom.— 69 9. Sir William killigrew, Sir Edward Heron, and Mr. Long, discharged men of Fines and Imprisonments imposed by the Court. Proved before Mr. Ellis, fol. 82. to— 86 10. They judged the ground drained by their works the 14 of March 14 Car. and the 10 of June, 16. Car. they find their works decayed, Mr. Walpoole and themselves Commissioners, such works so soon decayed could not be the cause of draining. Proved by a decree dated the 10 of June 16. Car. Nom.— 76 11. They question their own decree, and forced many to subscribe, and they prosecuted that force, and laid a tax of 2 s. the Acre, whereby they took and sold the Commoners cattle, and would obey no Replevins, so they made themselves Masters of our real and personal Estates, that tax was to force possession, the Officers employed to take our Catttel, were of no worth nor credit, many were beat and threatened to be killed. Witness Mortons dead and Daningtons mens subscription. No.— 11 & 29 2. Witness Mr. Longs own hand writing. Nom.— 5 Sir Will. Killagrews Letters, No. 4. & 27 By witnesses from fol. 53 56. to fol.— 75 Others fined & imprisoned, fol. 76. to fol. 79 The Landy Dimock being stopped at law, was refused relief by the Commissioners, unless she would yield possession. f. 108 109 The order upon the Petition. Nom.— 3 Witness upon the tax of 2 s. Mr. Enis Letter. Nom.— 49 And divers men that suffered, fo. 81 to f. 89. 12. Mr. Hall and others were Pursuivanted up before the Lords of the Countell, and committed before the Parliament, about April 1640. Proved before Mr. Ellis fo. 48. to fol.— 52 The Messongers Warrant Nom.— 26 13. Mr. Hall, &c. was forced to enter into bond, not to disquiet the Earls possession, not to complain but to the Board or Commissioners of Sewers.— witness the Lords, Order, the 25 of Octob. 1649. Nom.— 19 The condition of the Bond, Nom.— 23 Welches Acquittance, Nomb.— 2 14. Mr. Hall complains to the Commissioners in the Earls absence; the earl sendeth a Letter post to stop Mr. Halls proceedings there, so the was bound to complain where no relief was to be had, after great expense.— Witness the Earls Letter, Nomb— 24 15. After the said last Parliament 1640. was ended, Mr. Hall with others, was again pursuivanted and forced to subscribe, for making their peaceable entries, it being them a dangerous time to oppose Prerogative power. Proved before Mr. Ellis. Fol. 53 to fol.— 56 16. The Jury that delivered the Verdict, that seemed to cross their designs, was threatened.— Proved before Mr. Ellis, fol. 79. and— 80 The Verdict, Nomb.— 1 17. The Knights of the Shire for lincolnshire in the last Parliament testify that at their Election this undertaking was presented for a Grievance. Before Mr. Ellis, fol.— 115 18. Their pretence of proving by witnesses that our fens were melierated by their works, we deny; and say, those Witnesses were tampered with. Besides those Witnesses most of them will appear to be such: as was Actors of their oppression as fawscit right, &c. and subject to our actions. Proved by John Ship and others, fo.— 40. & 42. 19. This Undertaking hath already by this Parliament been condemned for a Project and Oppression by the grand Remonstrance; there being no cause depending the House of the same Nature, wherein Witnesses were examined, but this of the Earl of Lindseys, and that wherein Sir Robert Barkham is concerned. The which the House referred to Law. witness the grand Remonstrance itself, dated 15 Decemb. 1641. which declares it an abuse of the Commission of Sewers, and abuse of the Statutes of Improvement. Witness the order of the house in Sir Robert Barkhams cause, 13. Feb. 1640. The Commoners being Petitioners to the House of Commons, Sir William killigrew, &c. declined the Justice of that House, and entrenched upon the privileges thereof; he and the Earl of Lindsey, procuring Orders( during the time the cause was there depending) from the Lords House to settle possession in them, and to stay the Commoners Suits at Law, which was by Sir Guy Palms reported a breach of privilege. witness the Commoners first Petition. Witness the Lords Orders dated 6. April 1641. 4 June 1641. and 2. of June 1641. For staying of Suits, witness the Lords Order, dated the 16. Feb. 1641 Observe they first get an Order to stay the Commoners Suits, and then Orders to quiter their possessions. That these were judged breach of privilege, witness the House of Commons Order, dated the 10. of July, 1641. and Sir guys Report 29 july, 1641. If the title be referred to Law as it was the opinion of the Committee, where Jo. Goodwin Esq; had the char, then to matter of possession we need not speak. Witness the resolutions of the Committee under Mr. Goodwins hand, dated the 14. of February, 1649. Yet least the Undertakers should cavil at our nothing saying to the point, we shall make it plainly appear, that the possession is, and ever hath been in the Commoners; the Undertakers tyranny and oppressions appear in the depositions before Mr. Goodwin. Witness the High Sheriff and Under Sheruffs and divers Depositions taken before Mr. Goodwin, far more considerable then theirs by Mr. Dymocks of 14. years of Age, and four or five others, inconsiderable persons that have been sued by us, and are still liable to our actions. The House of Commons having opened the Law for the Commoners by their Votes and Conferences with the Lords, and giving them leave to proceed at Law by their Order dated the 12. of july, 1641. the Commoners proceeded to trials, and some had Composition, and others judgement at Law Witness Mr. Halls Verdict delivered in to Mr. Goodwin, and several depositions taken before him. As for Riots, or abetting of Riots, it is scandal-cast upon the considerable Lords, Owners and Commoners, there being no proofs against any of them to that purpose, neither can the Undertakers make good that foul aspersion. How Sir William Killigrew and most of the Petitioners derive their Titles, or what interest they have in our Lands, doth not appear by any Decree or dead produced at the Committee. If a bare Petition be a good Title, what can any man call his own? As for the Houses pulling down; what was disorderly done therein, or in any thing else, the offenders being most strangers, and few or no interested persons, were imprisoned and punished, and some forced by the Lords to pay Sir William Killigrew sums of money for his loss. One Captain Hull a servant to Robert Earl of Lindsey was the chief instrument in pulling down the houses. We the Lords, Owners and Commoners, humbly desire that we may be enabled ourselves in the first place to improve our Lands to the best advantage of the Commonwealth. Our grounds are unknown to most Members, we desire some honest indifferent Gentl: may be appointed to view our Fens, and certify the condition of them to the Parliament; we will bear one half of the charge, if the Undertakers will bear the other. Dimock and Wright their witnesses. Their own Witnesses before Mr. goodwin deposed, that the Fens are as bad as they were before the undertaking. They have been, and are, so good Winter-ground, that we have no better. In the Remonstrance of the state of the Kingdom the fifteenth of Decemb. 1641. the Parliament declared large quautities of Common and several Grounds have been taken from the Subject by colour of the Statute of improvement, No Petition for Commons so taken, was examined in Parliament but ours. and by abuse of the Commission of Sewers, without their con●ents, and against it; and amongst the rest, of the grand grievance there mentioned to be the root and growth of the mischievous design against the Nation, enumerate that one. The Earl of Lindsey, Sir William Killigrew, and the most of their partissipants, who took away our Commons and severals, as is above mentioned, fought with the King against the Parliament, to the uttermost of their powers, to maintain those oppressions and arbitrary proceedings; the King is condemned for that and such like Arbitrary and tyrannical proceedings; can Religion, Law, or reason, justify the accessaries or chief instigators thereof. We the Lords, Owners and Commoners, unless some few persons, fought with the Parliament, for Law, Liberty, and our Rights, against oppression; we prevail; the question is, Whether those that engaged us in the war, should-give to us what in right of Law is ours, and what by Law we have recovered, or to choose who fought against us, to keep from us what they got by an Arbitrary power, against Law and our consents? Sir William saith, they have laid out great sums of money; we the Owners and Commoners have lost and ventured our lives and considerable Estates in the Parliaments service, and have received no recompense; and shall the conquered, who have put us to vast expense, enjoy what they have illegally taken, and we recovered by blood, purse, and Law. Solomon saith, The hope of the unjust shall perish. The King exacted of us shipmoney, which was adjudged Arbitrary, but he built a great ship, which the Parliament found useful to beate the Dutch; therefore, &c. And many men laid out much money in Monopolies, therefore, &c. We desire Sir William Killigrew, &c. may try their rights in Court of Law or Equity; a favour we should have been glad of, had they prevailed. The Petters writ by Sir John brook, now called Lord Gobham, to Sir William Killigrew at Oxford, April 1643. and March 1643. printed by command of Parliament, with a Declaration thereupon in May 1643. shows what mercy we should have received from them; the chief of us of the County of Lincoln that did adhere to the Parliament, being indicted by them, and found traytors by a Jury, and thereupon proclamation to seize our Estates; and yet they say Juries would find nothing for them: the Letters in print are herewith printed. Part of a Letter writ by Sir John brook to Sir William Killigrew, dated March 27. 1643 Sir John adviseth, There must be care taken lest any notorious Traytors may escape; and therefore the King, as I conceive, must sand to those he most trusts in every Shire, to certify the names of those that ought to be exempted out of the general Pardon, as we have now done by Sir Peregrine Bartue for our County of Lincoln. A Letter from Sir John brook to Sir William Killigrew, dated March 27. 1643. SIR, ACcording to my promise in my last Letter, I do sand you here enclosed, the names or those that were indicted of high Treason at our last Sessions at Grantham. I can add no more news, but that this day I received from my wise the copy of the Kings last Message to the Houses of Parliament, which was according to my heart, and the most part of it the same I formerly writ to you, which you were pleased to read to the King. My wife writes, that the Commons in Parliament will not suffer it to be printed, but I have sent it to my Lord of Newcastle to be printed at York, if he think fit. By my wifes Letter you may perceive that my house in London is plundered from the Garrets to the Cellar, and all taken away to the bigness of a nut; and I am sure you know how it was furnished; and this act done by a particular Warrant from the Committee. I will die but I will revenge it, and that ere long. God in Heaven deliver the King, and all that love him, from those base traitorous Devils. Your Servant, John brook. These who are underwritten, with at least 100 more, were indicted for Traytors. Sir Christopher Wray, Sir Anthony Irby, William Ellis Esq; Sir Edward Ayscangh, Thomas Hatcher Esq; John Wray Esq; Sir Thomas Trollop Baronet, Sir John Brownloe Baronet, Thomas Savill Esq; John Archer Esq; Thomas Lister Esq; Thomas Grantham Esq; Edward King Esq; Edward Rossiter Esq; Edward Whitchcot Esq; Edward Ayscough Esq; Thomas blundel Esq; John Harrington Esq; Robert cauldron Esq; Thomas Ogle Esq; Thomas Hall, John Pedder, Thomas Pell, Gentl: and a hundred more. A brief Relation by the Commoners in Lincolnshire, of their legal Interest, and that nothing of Interest the Undertakers have in Law. THe Owners and Commoners in the Fens between Bourne and Kyme Eae, in the County of Lincoln, by reason of their Seniories, Resiances, and Inhabitants in the Towns there, have time out of mind, without memory of man, taken all manner of profits arising out of the said Fens and Commons, both for sustentation of their persons, and Common of Pasture for their cattle( as appurtenant to their Senicries and Resiances, and are, and ever have been( by custom) charged by reason of their Seniories, with the repairing of many Drains, Watercourses, Banks, Sleuces, and Goats, for the bettering and making them so useful for them, and for watering several grounds in many of the said Townships, which they have been much interrupted in by several Undertakers this twenty years in making of new works, a design continued at Court to deprive us of our ancient Rights, contrary and against the known Laws of the Land. Magna Charta. 1. By the 9 H. 3. cap. 15. no Free-man shall be distrained to make banks, but such as were of old time and of right have been accustomend to make them in the time of K. H. our Grandfather. 2. Also in chap. 16. the same year, provides that no Banks shall be defended from henceforth, but such as were in defence in the time of H. our Grandfather, by the same places and bounds as they were in his time. By the 15 and 16 Chapters, the Undertaker shall not tax me nor any ground to make new banks that before were not in charge. This is manifested to be the true meaning of Magna Charta, by the succeeding Statute, viz. the 25 & 45 Edw. ●. 21 R. 2. 1 H. 4. and especially the 12 Edw. 4. By the 23 H. 8. chap. 5. the works and words mentioned in the 6 & 7 chapters of the 12 Edw. 4. were united and knit up in one standing Commission, commonly called a Commission of Sewers, and all those words and works are subject to the Survey of the Commissioners mentioned in that Statute of 23 H. 8. but thereby the works and words mentioned in the 6 chap. 12 E. 4. are to be pursued as proper to the 6 H. 6. ch. 5. and the faults and words mentioned in the 7 ch. Ed. 4. are to be pursued according as is set forth in the 7 chap. for it is commanded by the said 23 H. 8. that the Justices shall do therein as to the Kings Justices appertaineth, after the Laws and Statutes of our Realm, which includes the said 6 & 7 chap. E. 4. The practise is, Observe the Undertakers proceeded not by Jury, but by directions of the Kings Letters. and ought to be by Jury thus; is there a delinquent found by inquisition upon the substance of the 6 ch. of Edw. 4? Let the Commissioners proceed against him for the repair, or making new that which is so found to be hurtful in his default ‖ They laid uncertain tax, upon nobody, of purpose it might not be paid. by a tax, assess, distress, or sale. Is there a Delinquent found by Inquisition upon the nuisance mentioned in the 7 chap. of E. 4? Let them proceed against them by giving them by scire facies, half a years time to remove or correct the said nuisance as the Justices appoint, upon pain of 100 mark to be estreated. Thus you see the power of Commissioners by the 23 H. 8. chap. 5. is limited in matter of fact by the former intentions of the 6 and 7 chap. of Edw. 4. and they are limited in matter of form by the words of the 23 H. 5. which restrains them to do as belongs to the Kings Justices according to the Laws, Customs, and Statutes of this Kingdom. Now if Commissioners of Sewers be tied to this matter of fact and form, examine how the Undertakers by their new Law can take our Inheritance, without our consent and liking, to make new Drains, Banks, & Goats, for the satisfying their own covetous desires, notwithstanding these limitations the innovating Undertakers would shelter themselves by words in the said 23 H. 8. viz. according to your discretions, and according to the Laws of Rumney-Marsh in that Statute expressed, implying by the word discretion, that they may do what they please; which gloss confounds the text, for such discretion is absolute and apparent indiscretion, not supportable by that Statute, nor any other Law, their discretions being to be guided by Law and custom, as formerly expressed. And as concerning their imaginary proceedings according to the Laws of Rumney-Marsh, that is most ridiculous; for I pray you observe the Charter granted the 36 year of H. 3 to the men of Rumney-Marsh, and you will find that nothing is granted, but what was time out of mind in use( excepting a restraint to the Sheriff for meddling with distresses.) Hereby ye see custom time out of mind begets a rule, and was the ground of this Charter, which Charter was the ground of the Commission of 42 H. 3. to Hen. Bathema, to survey the Walls and Water-courses, and to cause them to be repaired by these that are bound and charged with the reparation of them; there is nihil novi, but de novo, as accustomend to be repaired or new made, agreeing to Magna Charta above specified. Thus you see the projects of draining hath no foot hold or congruency with custom, use, or any Law or word of Statute before recited, but is a mere arbitrary proceeding against those Laws. They pled that they have laid out vast sums of money. To this I hear some make answer, Note that before the 43 Eliz. there was no general Act for draining. Tyndals 4 Jac. was a particular Act, and there are some other particular grounds, whereby it is most certain, that without a special direction by Statute, or without the power of the said 43 Eliz. no person is authorised by the 23 H. 8. ch. 5. or any other Statute to undertake that design, for of otherwise the said 43 Eliz. Tyndals 4 Jac. and some other Statutes for Plumstead Marsh 23 Eliz. were to be judged Acts to no purpose made. caveat Emptor, and that it is improper for him to expect a Parliament succour herein, when as he hath utterly waved and rejected the Parliament direction, which appears to be given him by the words of 43 Eliz. chap. 11. wherein all drainings are graciously provided for, both to the content of the parties interested, and also for the due and fit recompense to the Undertaker; he hath thus spurred against a Parliamentall course, why should he now hope for a parliament redress to maintain his arbitrary course, which will reach Hills and Mountains when we have no more low Grounds left to satisfy their covetous desires. That abuses to the persons, Goods, Lands, Drains. Goats and Banks, I leave to the expression of the several Petitions and Answers exhibited by them that are grieved and oppressed by the Undertakers. FINIS.