The Earle of LINDSEY his Title, by which himselfe, and his Participants, doe claime 24000 Acres of Land in the Fennes in Lincolne shire.
FIrst, We claime by the Law, Vertue, and Authority of severall Decrees of Sewers.
Secondly, we claim the same Equity that former Parliaments have afforded to such undertakings, we having in this expended near 80000 l. to the very great benefit of the Commonwealth, which we hope may merit the same confirmation this Parliament hath afforded to the Earl of Bedford.
Reg. 127.That Commissions of Sewers were anciently part of the Commission of Oyer and Terminer.
That they were issuable at the Kings pleasure, and that the King (as he who had the Supreme care of things of publike concernment) was bound to grant such Commissions upon all emergences.
Ca. Rep. 10.1 [...], In the R [...]g. 1276. F. N B. 113. 6. H. 6.5. 25 H 8. [...]10 13. Eliz. c. 9. 6. H. 6.5.7. la. 20. 23 H. 8 5. 23 H. 8.5.That this was the constant opinion, we find in our Ancientest Books of Common Law, That it was constant practise; we find many such Commissions issued, two especially, long before any Statutes now known in England were made, they were both sent into Lincolne shire, and the first into the very parts where the Earle made his Works, and at that time to have done this very Work that the Earle hath now done.
But because those Commissioners were temporary, to persons somtimes strangers in the place, and ordinarily in redresse of mischiefes already happened by some former inundation, some Statutes have from time to time enlarged the power of Commissions to act as well in prevention, as redresse, and appointed those Commissions to Gentlemen living on, or near the place, who by their timely notice might prevent, and their Authorities were made constant for certain number of years.
The first Statute to this purpose we find in Henry the third his time, which is as ancient as any Statute now knowne in England, very many subsequent Statutes have enlarged their powers in such particulars as in experience they found necessary, viz to inable them to tax all Lands which might receive benefit or avoid losse: to make new Dreins, if they upon their view and observation found the ancient ones were not sufficient; to distraine, and sell for not payment of those Taxes, or in their discretions to charge such Lands perpetually, or to sell them for years, or lives, in Tayle, or in Fee.
And because the Commissioners were Gentlemen of the Countrey, not ever so intelligent in every scruple of Law, it is by later Statutes provided, That their Decrees shall not be examinable but in Parliament, as divers heretofore have been; but those Parliaments never avoided them, if they found the course taken by their Commissioners, might probably doe the worke, though it was not yet really done. But on the contrary, rather then lose the benefit that might thereby accrue to the State (although those Commissioners might in some thing have erred in judgement) they did confirme their Decrees, and somtimes better the Contract in behalfe of the Undertakers, as they did Tindalls Law, Lovells Law, &c.
That those Lands undertaken by the Earl of Lindsey were hurtfully surrounded in Henry the fifth his time appeares by Presentments at a Session of Sewers at that time.
That the Earle hath pursued the most effectuall course in doing the work, appears by Acts of Sewer, at a Session at Donington before Charles Brandon Duke of Suffolke, and many more eminent men in 34 H▪ 8. who decreed the making of new Dreins in the very same place: and the same outfals to the Sea that the Earle hath done, only the Earle hath made the same, and some more, and much more capacious, and that the Co [...]missioners then laid the Tax generally, as the Commissioners now laid this last, before their Contract with the Earle.
That upon great complaint of the Inhabitants at a Session of Sewers at Sempringham 8 Eliz before the Earle of Lincolne Lord high Admirall of England, and many more, a generall Tax was laid for the repairing and enlarging Dreins to carry away waters that in those [...]n then annoyed them.
At another Session 17 Eliz. at Swinstead, upon complaint of the Countrey that they were then more drowned then formerly; the Commissioners then decreed the making such Dreins as the Duke of Suffolke and others had decreed in Hen. 8. his time, and such as the Earle hath since made, and they then laid a Tax upon the same Lands, but it was not paid, and so nothing was done.
At Bourne in 6 Iac. the Commissioners upon their view of the great inundations that time, laid a generall Tax for doing some works in the said Fennes.
Reg. 12 [...]. 23. H. 8. c. 5. 7. Ia. 10.2c.But about the 5. Car. Sir Anthony Irby, Sergeant Callis, and other Commissioners of Sewers, and of the Peace, then finding all former Attempts fruitlesse, by reason the Inhabitants would never pay the Taxes nor the Lands by reason of the Surrounder had no Cattell upon them to render Distresse, and well understanding that the King was bound, as is expressed in the Preamble of all Statutes of Sewers to give direction in workes of this natur [...] and necessity. Those Commissioners we say upon those considerations, did by their Letters remonstrate to the then King, the necessiti [...]s and profits of dreining this Land, and beseec [...]'d his Majesty to recommend some person of Honour to contract with them as undertaker, the King was pleased to recommend the Earl of [...]ndsey, however before they made any contract with the Earl, they yet laid another Tax of 13 s. 4 d. per Acre, at a Session at Sleeford of 35 Commi [...]ioners, many of them Lords and owners, and prime Gentlemen of the Country, and after three years expectancy of that, and little or none paid, Then 11. Car. lest their endeavours should have been as fruitlesse, as formerly, at a publick Session of Sewers, and in a generall Assembly of Lords, Owners and Commoners, where were 32 Commissioners, many Lords and Owners of the said Fennes; after many proposals and refusals, it was fully agreed, and a perfect contract made with the said Earl, that the said Earl should have as a reward for dreining all between Bourne and Lincoln 24000 Acres, and assoon as he should have finished that part between Bourn and Kime &c. he should have 14000 Acres as a proportionable part for so much to be put into his possession, when by the Commissioners it should be adjudged dreined.
The Earle applyed himselfe to the work, and 12 Car. at a Session at Boston[?] the Commissioners being 24 apportioned his part out of each particular Fenne.
At a Session at Bourn 13▪ Car. 10 Commissioners ascertained the place where his proportion in every Fenne should lye.
This Law was after confirmed 15 Car. at Sleeford by 18 Commssioners.
After in the same years by 19 Commissioners it was viewed entirely upon the place, after at a Session at Sleeford the said Commissioners did decree the poss [...]ssion to the Earl. After which,
The Earl did inclose it, build, and inhabit it, plant, plough, sow and reap two years without disturbance, the third year the Parliament then sitting and having received six clamorous Petitions from some of the Countrey, and examined many of their witnesses, did as they conceived just, grant Orders from both Houses, to quiet the Earls possession, and secure the Croppes then upon the Land: But the Petitioners in contempt of all, (pending their Petitions) violently entred and destroyed the Dreines, Buildings and Crops then ready to reap, and of a very great value, and have ever since held possession against the said Earl, and perished his Works, which was the highest contempt that ever was done to a Parliament sitting.
IN the year 1646, after the War ended, the Drayners did Petition the same Parliament to restore them to their possession, and to settle the said Draining as they had done Bedford Levell, and the Parliament did referre the businesse unto a Committee, where all the Members had voices, that would come, and after seven years examination of all differences complained of by the Drayners and the Rioters, with their Councels on both sides, untill that bo [...]h sides did publikely declare to the Committe, that neither party had [...] referre the [...] the Report unto the Solicitors and their Councels on both sides, out of all the papers and examinations that lay in the Clerk of the Committees hands; and accordingly the Report was by them drawn up, and [...] said Solicitors and their Councels: And this was done by Master Thomas Hall's advise, who did ass [...] the Solicitor for the Rioters, and did approve of every particular before it was entered into the said Report; which was after delivered by both Parties unto the Committee, and by the Chaireman of the Committee, was presented unto the House, and on the reading thereof, the Parliament did Order a Bill to be brought in, for making an Act to settle the said undertakings, and did appoint severall dayes to read the said Bill, which was tendred by Master Iohn Goodwin: but that Parliament did end before it could be perfected.
Then the Drayners did Petition his Highnesse the Lord Protector, to perfect what that Parliament had so neer finished, and his Highnesse did referre the consideration thereof, unto his Councill, who after due examination of the cause, by reviewing of the proceedings in Parliament, (which lay before them) and by summoning of both parties, and hearing them therein, after seven months examination of the businesse, did passe an Ordinance, But did spend so much time therein, that his Highnesse the Lord Protector did not think fit to passe the said Ordinance because the Parliament was to set within two daies. So that the Drayners (by the Rioters holding the possession of their Estates 12 yeares, and by this long sute) are become so much indebted, and so much impoverished, that they are unable to beginne the sute a new, and must be ruined, unlesse this Parliament, (in consideration of their great good done to the Nation, and in compassion of their sufferings under so long opression of the Rioters and their abetters) will be now pleased to perfect the first Act intended by that Parliament, or the Ordinance lately passed by his Highnesse his Councill, both which doe remain in Master Scobels hands.
THE premises considered, it is humbly conceived, that the Rioters ought not in Justice or Conscience, to be rewarded for their barbarous Act of ruining that publick worke, with twelve yeares injoyment of the Drayners Land; nor can they in equity claim the benefit of any Law, that have rooted up the foundation of all Law, (as much as in them lay) by that Riot and contempt against that Parliaments Order, whose Justice they declined, while their cause was in hearing before the Committee: and yet these men doe know that in the 23 yeare of Henry the eighth, the words of the Statute are; that a Decree of Sewers ratified and confirmed by the Royall Assent under the great Seale (as Lindesey-Levell Decrees are) they cannot be altered but by Act of Parliament: And unto the severe inquire of 7 yeares examination before a Parliament, the Drayners have submitted, and have been justified, and doe now againe desire the Justice of this Parliament in the said cause, which the Rioters have ever appealed from.