The owners and Commoners in the Fenns, between Bourn & Kyme Fae in the County of Lincoln, by reason of their Seniories, Resiances, and Inhabitants in the Townes, there, have time out of minde, without memory of man, taken all manner of profits arising out of the said Fenns and Commons, both for sustentation of their persons and Common of Pa­sture for their Cattell, (as appurtenant to their Seniores and Resiances, and are, and ever have been (by Custome) char­ged by reason of their Seniories, with the repairing of many Draines, Watercourses, Banks, Sleuces, and Goats, for the bettering and making them so usefull for them, and for watering severall grounds in many of the said Townships, which they have been much interrupted in by severall under­takers this twenty years in making of new workes, a designe continued at Court to deprive us of our ancient Rights, con­trary and against the known Lawes of the Land.

1. By the 9. H. 3. cap. 15. no Free-man shall be distrei­ned to make Banks,Magna Charta. but such as were of old time and of right have been accustomed to make them in the time of K. H. our Grandfather.

2. Also in the 16. Chap the same year provides that no Bancks shall be defended from [...] forth, but such as were in defence in the t [...]m [...] of [...] our G [...]a [...]dfather, by the same pla­ces and bou [...]ds as they were in his t [...]me.

By the 15. and 16 Chapters the U [...]dertaker shall not tax me for 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. and 45. Edw. 3. 21. R. 2. 1. H. 4. and especially the 12. of Edw. 4.

By the 23. H. 8. chap. 5. the workes and words mentio­ned in the 6. and 7. Chapters of the 12. Edw. 4. were united and knit up in one standing Commission, commonly called a Commission of S [...]wers, and all those words and workes are subject to the Survey of the Commissioners mentioned in that Statute of 23. H. 8. But thereby the workes and words mentioned in the 6. chap. 12. E. 4 are to be pursued as pro­per to the 6 H. 6. chap. 5. and the faults and words mentio­ned in the 7. chap. Edw. 4. are to be pursued according as is set forth in the 7 Chapter; for it is commanded by the sayd 23. H. 8. that the Justices shall doe therein as to the Kings Justices appertaineth, after the Lawes and Statutes of our Realme, which includes the sayd 6 and 7. chap. E. 4.

Observe the Undertakers proceeded not by Jury, but by directions of the Kings Letters. The practice is, and ought to be by Jury thus; is there a Delinquent found by Inquisition upon the substance of the 6 chap. of Edw 4? Let the Commissioners proceed against him for the repaire, or making new that which is so found to be hurtfull in his defaultThey layd uncertaine tax: upon no body: of pur­pose it might not be payed. by a tax, assesse, distresse, or sale.

Is there a Delinquent found by Inquisition upon the nu­sance mentioned in the 7. chap. of Edw 4? Let them pro­ceed against them by giving them by scire facies, halfe a years time to remove or correct the sayd nusance as the Justices ap­poynt upon paine of 100 Marke 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 E. 4. and they are limited in matter of forme by the words of the 23. H. 5. which re­straines [Page 19] them to doe as belongs to the Kings Justices accor­ding to the Lawes, Customes, and Statutes of this Kingdome.

Now if Commissioners of Sewers be tyed to this matter of f [...]t and forme, examine how the Undertakers by their new Law can take our Inheritance, without our consent and li [...]ing, to make new Draines, Banks, and Goats, for the sa­tisfying their owne covetous desires, notwithstanding these limitations the innovating Undertakers would shelter them­selves by wo [...]ds in the sayd 23. H. 8. viz. according to your discretions, and according to the Lawes of Rumney-Marsh in that Statute expressed, implying by the word discretion, that they may doe what they please; which glosse 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 Custome, as formerly expressed.

And as concerning their imaginary proceedings according to the Lawes of Rumney-Marsh, that is most ridiculous; for I pray you observe the Charter granted the 36. yeare of H. 3. to the men of Rumney-Marsh, and you will finde that no­thing is granted, but what was time out of minde in use (ex­cepting a restraint to the Shiriffe for medling with distresses.)

Hereby yee see Custome time out of minde begets a Rule, and was the ground of this Charter, which Charter was the ground of the Commission of 42. H. 3. to Hen. Bathama, 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; here is nihil novi, but de novo, as accusto­med to be repaired or new made, agreeing to Magna Charta above specified.

Thus you see the projects of drayning hath no foot hold or congruency with Custome, use, or any Law or word of Statute before recited, but is a meare Arbitrary proceeding a­gainst those Lawes.

They plead that they have layd out vast summes of Mo­ney.

To this I heare some mak [...] [...],Note that before the 43 Eliz. there was no generall Act for drayning. Tyndalls, 4. Jac. was a particular Act, and there are some other parti­cular grounds, whereby it is most cer­taine that without a speciall directi­on by Statute, or without the power of the said 43. Eliz. no person is au­thorized by the 33. H. 8. chap. 5. or any other Statute to undertake that designe, for if otherwise the sayd 43. Eliz. Tyndalls, 4. Jac. and some other Statutes for Pl [...]steed Marsh, 23. Eliz. were to be judged Acts to no purpose made. caveat Empt [...]r, and that it is im­proper for him to expect a Parliament succor herein, when as he hath utter­ly waved and rejected the Parlia­ment direction, which appeares to be given him by the words of 43. Eliz. chap. 11. wherein all draynings are graciously provided for, both to the content of the Parties interessed, and also for the due and fit recompence to the Undertaker, he hath thus spurred against a Parliamentall course, why should he now hope for a Parliament redresse to maintaine his Arbitrary Course, which will reach Hills and Mountaines, when we have no more low Grounds left to satisfie their covetous desires.

That abuses to the Persons, Goods, Lands, Draynes, Goats and Banks, I leave to the Expression of the severall Petitions exhibited by them that are grieved and oppressed by the Un­dertakers.