Sr. VVilliam Killigrew HIS ANSWER TO THE FENNE MENS OBJECTIONS Against the Earle of Lindsey his Drayning in Lincolnshire Printed at London 1649. The Fen-mens Objections against the Earle of Lindsey and his Participants FIrst Our Adversaries doe object That some Commissioners who are named in the body of the Decrees have not set their Hands and Seals unto the said Decrees being ingrossed into parchment 2. They say The Earle did bribe the late King and his Lords to take away their Fennes 3. They say The Earle did dreyne these Fens by prerogative power by the Kings Letters and by the Lords Orders 4. They say That the ancient Commissioners of the Country were put out and Strangers put into Commission 5. They say That the Dreyners were parties and Iudges 6. They say That the Fens in question were not drowned and did therefore need no dreyning 7. They say That if the Fennes did need to be drayned yet not by such Malignants as we 8. They say That the Earle did undertake the worke against the Countries consent 9. They say The Earle did take the best land and left the worst land for the Country 10. They say That the Fennes between Bourne and Kimeeae are the worst for drayning 11. They say That Kesteum side is drowned by the banke of our great River which doth secure our own lands and doth thrust up the waters on the land left unto the Country 12. They say That the Earles bankes doe cut off the ancient Sewers of the Country which otherwise would have drayned their Fennes 13. They say The Earle tooke possession by force of Armes and kept possession by Troops of Horse by great Guns and by murdering the people 14. They say That the Commonners were imprisoned by the Lords Orders 15. They say That the Country was denyed the benefit of the Land by the Earles priviledge of Parliament 16. They say That this Parliament hath declared against the drayning of Fens as a grieveance to the Common-Wealth 17. They say That Sir Robert Barkhams case was judged in Parliament against me 18. They say That the Earle and his Participants have drayned the dry Fens towards Bourne and not medled with the drowned Fens towards Lincolne 19. They say That the Country was defrauded by the Commissioners who sould the Earle too much Land by his Contract 20. They say That the Earle hath taken more Land then was alotted him 21. They say That the Earle hath exchanged certaine Lands which the Country will not allow of 22. They object That the Drayners have fought against the Parliament 23. They say That my Father Sir Robert Killigrew did by his Will dispose of two hundred Acres of these Fens to his two younger Sonnes before the Earles work was begun 24. They say That I was nominated an undertaker with the Earle and did relinguish my right 25. It hath been also objected That the Countesse of Exeter hath the Brovage on many of the Fens in question and doth conceive her Interest to be prejudiced by the drayning 26. It hath been also objected that the Earle did give to Mr. Robert Longe 500.l a year to manage his worke 27. They doe farther say That the Earle did smother a Verdict by which the Iury found that the Fens in question were not surrounded Sir William Killigrews answer unto the Fen-mens Objections at the Committee for the Earle of Lindsey his Levell concerning the matter of Fact Mr. Goodwin I Suppose our Councell hath fully shewed that we doe claim our title to the Fens in question by the authority of the decrees of Sewers read before this honourable Committee and remaining before you And have fully proved those decrees to be according to the directions of the Laws and Statutes of this Land and according to the Presidents of former times for works of this kind And by those Decrees 't is evident that our contract was legall and that we have performed our works according to our contract by which we have brought honour and profit to this Nation And I say this least by any witty exposition the letter of the Law should be now construed to a different sence from what those times understood it by which this letter of the Law may now prove a mote point that was then clear If so we hope that equity will take place for it concerns every man that hath an estate as well as us that all equity be not devoured by the strict letter of the Law and chiefly in such cases of profit to the State where the law is doubtfull or short it is proper for the Parliament to take care in equity and in our case the Royall assent being had to our Decrees the words of the Statute are That the Parliament only can repeale them And to the Parliaments order we doe as gladly submit as our adversaries would willingly decline In the next place I observe that our opposers doe indeavour to blast the credit of our just title of right by pretended miscarriages in the matter of fact in those that managed this businesse for the Earle of Lindsey and by throwing severall scandalous aspersions on the persons of the Dreyners which makes me think it very necessary to give the Committee such answers to our opposers objections as I hope will vindicate the Earle and his Participants from being guilty of any wilfull crimes or from any mistakes of consequence or any project or any thing like a project For 't is evident that the Earle did undertake this dreyning at the suite of the Country as appears by Sir Anthony Erbyes and the other Commissioners Letter to the late King and in pursuance of many ancient Records of that County shewing him the indeavours of their Ancestors to have dreyned the same Fens by new works by generall taxes in the same method and in the same places as he now hath done which was never heretofore blemished with the name of a project and all this grounded on severall invitations of former Parliaments to encourage private men to undertake those publique workes which this present Parliament hath also approved by setling of Bedford Levell by an Act and therefore we hope that we having walked in our Predecessors steps by the advice of learned men in the lawes of Sewers and having brought our works by a great charge and hazard to the highest perfection of any such works in this Nation we shall have the protection of this Parliament since in their wisedome they have thought fit to settle Bedford Levell 1. Our Adversaries doe object That some Commissioners who are named in the body of the Decrees have not set their hands and seales unto the said Decrees being ingrossed in parchment We answer That when a great number of Commissioners have unanimously made a Decree and the Clerks books perfected it is the constant use when the Sessions is ended for the Commissioners to goe home and for the Cleark of the Sewers a week or a fortnight after to ingrosse the Decrees in
Parchment and then to ride unto the Commissioners houses that made the Decrees to get their Hands and Seales and having such a number as the Law requires being fix the Clerke doth not trouble himselfe to ride over the whole Country to have every Commissioners hand that made the Decree nor is it necessary for all to signe it is enough that their names in the body of the Decree doe shew it to be their Act. And if one man or more should dissent they are included by the major part so that the major part be a number warranted by the Statute If any doubt be made of this we doe undertake to prove it all 2. They say The Earle did bribe the King and his Lords to take away their Fens We answer That the Earle might dispose of his Lands as he pleased whether he gave them or sould them I conceive concernes not the drayning nor those that adventured with the Earle if any injustice was done for bribes let that appeare and let them that did it answer for it 3. They say The Earle did drain these Fens by Prerogative Power by the Kings Letters and by the Lords Orders We answer That the Earle and we doe claime our Interest by the Lawes of Sewers as by the Decrees before you is proved and doe disclaime all Title or Right by any Prerogative Power and doe say that the Kings Letters did only excite the Commissioners to proceed in a publique good work which was his duty as it now is the Parliaments to further such a beneficiall undertaking to inrich the State and we say those Letters did but recommend the Earle to be the undertaker but did not injoyne the Commissioners to accept him We further say that by the date of all the Lords orders those from the Star-Chamber from the Councell-Table and lastly from the Parliament it doth appeare that no such order was used by the Earle to procure the drayning but to preserve the workes doing and done The first order was long after the work was begun and others after the Earle had possession to preserve Corne from being destroyed and houses from being puld downe and to deterre such rioters By all this we conceive it is cleare that the Earle did not force the Countrey to consent to draining by Prerogative Power as is alledged 4. They say the old Commissioners of the Country were put out and strangers put into Commission We answer That the Commission used of course to be renewed every three or five yeares And it was at the Lord Keepers pleasure to change the Commissioners And it was just and reasonable to put the chiefe of the Drayners into the Commission who were become a part of the Country by that interest And we further say that the Lord Keeper might be informed by the Earle that some eminent men of the Country who at first did seeke to advance this worke were turned against it because they could not have such sharâ—s in the adventure with the Earle as they desired or for some other private grudge which we conceive a just cause for the Lord Keeper to leave out such as would hinder a publique good for private ends And we further say that it is likely that some did desire to be put out for their owne case which is very usuall however it is evident there was no evill intended by altering the Commission because there are above two hundred able and sufficient Gentlemen most of that Country in the Commission by which authority the Earles contract was made with the Country and but two strangers who could not over-rule that great number to prejudice their own Country by any unjust act 5. They say that the Drayners were Parties and Iudges We answer That when the Tax of 13s 4d was laid on every acre drowned there could be no parties because the Earle had no interest nor at making the contract of 24000 acres until it was made the Earle had no interest and then of them that did make that contract betweene the Countrey and the Earle there was only two that had any relation to the Earle for the now Lord Cobham Sir Edward Heron and Mr. William Langton did some yeares after his Decree become purchasers of their owne Fens at 40s an Acre at which price those lands were publiquely offered to any of the Countrey to adventure for and only these three Gentlemen did thinke those drowned lands to be so much worth in those dayes The dates of these three Gentlemens deeds will shew how long after the contract they became Purchasers and therefore cannot be justly called Judges and Parties at the making of the Contract or laying the Tax three yeares before the Contract was made Nor can Sir Peregrine Bartu nor Mr. Long 's sitting on the Bench who were the only two that were afterwards concerned in the Earles interest be reasonably thought to over-rule the other thirty Commissioners that did make the Decree of Contract where the words are that no one man did dissent 6. They say That the Fens in question were not drowned and therefore did need no drayning We answer That by severall Records of that County now in Court it appeares that the Fens in question have been ever hurtfully surrounded with waters and that it hath bin for some hundreds of yeares the constant indeavours of the Commissioners of that Country and of many other eminent men to have drayned the same Fens in the same manner and by new works in the same places where the Earle hath made his Draynes It doth also appeare by our adversaries books lately printed and distributed to the Members in Parliament that a little before the Earles undertaking the Country did proffer Sir Anthony Thomas and Sir William Aylisse a fifth part to drayne these very Fens in question and that they demanded a fourth part by which it appears that these Fens were drowned and that the Country did desire to have them drayned and was sufficient argument to perswade the Earle to undertake the work and therefore no Project and may satisfie all indifferent men that the Earl had no Prerogative Power nor needed any nor Lords Orders to force the Country to a compliance with him It also appeares by our adversaries other printed books distributed to the Members of Parliament that our opposers themselves doe desire to become drayners of the Fens in question by all which it is evident that these Fens did require drayning 7. They say That if the Fens did need to be drayned yet not by such Malignants as we We answer That when we became Drayners there was no cause to call us so and we were fit to be drayners because in those dayes none in the Country did understand the Art of drayning which is evident by the unusefull drayns of the Country before the Earles undertaking and by their wilfull and ignorant cleansing of their old crooked draynes this last year hoping by so doing to have shewed the
world that our works were needlesse to which end they have to this day dam'd up the Earles great Rivers and by so doing have now drowned all the Fens to the great dammage and discontent of the Country as appears by the presentments of Sewers this last Summer in which those dams are presented as common nusances and are ordered to be taken up but yet doe still remaine and doe keep the Fens drowned by which it seemes our opposers did not formerly nor doe yet understand drayning and therefore not so fit to be Drayners as the Earle by whose works the Fens were kept dry untill they malitiously destroyd them on purpose to drown what he had drayned 8. They say The Earle did undertake the worke against the Countries consent We answer That the Contract was made by 32. Commissioners many of them Lords and owners of the said Fens and this at a publique Session of Sewers in Sleaford in the presence of many thousands of the people all hearing the Contract debated openly in the Church because the great Hall could not receive the Assembly and the people did expresse much joy to have the Earle undertake it and did unanimously work in his Drayns and hereby inriched themselves nor was here any appearing dissent in the Country untill our Adversaries perswaded them that they might have all the Earles Lands for asking 9. They say The Earle did take the best Land and left the worst for the Country We answer That by the Map it will appear that the Earle hath alotted to him that Land which was worst the lowest and most drownd the very Pan of all the Fens and lyeth most remote from all the Towns so that if those Lands that were worst be now become best it is a good evidence that the Earle hath done his work well for the truth is those worst Lands which were ever drowned before the drayning are by our works made good winter Corn Lands And yet to let the world see how unjust this complaint is the Earl did offer the Country to exchange all his Lands for so much of theirs and they refused it at a full hearing in the Lords house The truth is that the wit of man cannot set out the Earles proportion in any other place so profitable for the Country 10. They say That the Fens between Bourne and Kime-eae are the worse for drayning We answer That those Fens are improved by drayning from 2s 3s 4s an Acre to 8s 10s and 13s the Acre as appeares by testimony before this committee We say also that the Earle did at a hearing in the Lords house offer the Country to become Tenant to the Country for all the remaining Common at 10s the Acre which they refused and by all Records as well as by severall testimonies it appears thoso Fens were not worth a forth part so much before the draining therefore now improved to the great advantage of the Country 11. They say That Kesteven side is drowned by the bank of our great River which doth secure our own Lands and thrusts up the waters on the Land left unto the Country We answer That if Kesteven side or any other Fens in the Earles Level doe lie forty dayes under water the Country may re-enter on all his Lands for not performing his Contract with them And for the bank of the complained of it is true that when that River is full upon great sudden Floods that bank doth thrust up the waters upon the edges of the Commons next to the River more or lesse as the Floods doe happen but when the I'ide turns within few houres that water is carried off again but suppose the waters should upon very great Floods in winter be thrust up by this banke over halfe the Commons on Kesteven side for some hours or some few dayes 't were no harm to the Commons nor breach of Contract in the Earle unless the whole Commons do lye forty dayes under water then we confess they may re-enter and we do refer our selves to the Earles Contract for this particular It is worth the noting that they say this bank complained of doth preserve our own Lands dry winter and summer against all Floods and we acknowledge it doth so and do answer that all Holland Fens which doe all lye behind our lands are as well secured by this bank complained of as our own Lands are for when the waters shall break over this bank it must run over all our Lands before it can come into Holland Fens so that those of Holland who are our chief opposers ought not to complain nor have those of Kesteven any cause since we have performed our Contract with them and over performed it with those of Holland But the businesse is they doe all grudge to see the Drayners Lands bear winter Corn and Rape-seed Hempe and Flax and will not allow us to improve our inclosed Lands above the Commons which is very unjust for it those of Kesteven side doe please they may inclose one half of their Commons into small parcels as the Drayners have done and those of Holland may inlose all their Commons and be as dry as our Lands are but this subdivision of their Commons is no part of the Earles Contract we desire the Contract may be strictly observed and it will appeare that the Earle hath overdone his work rather then been short in any part of it and no man injured by it but those that complain most have most benefit 12. They say That the Earles banks doe cut off the ancient Sewers of the Country which otherwise would have drayned their Fens We answer That if their old Drayns could have drayned them how came the Country to lye drowned so many hundreds of yeares and how came we to find so many Records extant that shew severall attempts to have drayned the Fens in question by new works if their old Draynes would have done the work We doe acknowledge that our great River doth cut off all those old country Drayns on Kesteven side which ever did and still doe bring down the rain waters from the high Country into the Fens by which the Fens were alwayes drowned and by our taking of those waters into our River we carry them into the Sea which formerly did lye most part of the year on the Fens because they had no sufficient vent by the old out-fals and by this means only were those Fens capable of being drayned as by the Map appears so that we have cut off their old Drayns which did drown the Fens but not meddle with their old Drayns which did drayn them as they pretend for by their old out-fals to the Sea they could only drayn and all those old Drayns and out-fals to the Sea doe lye behind the banks complained of and behind all our inclosed Lands on Holland side and we have not cut off those old Draynes nor out-fals to the Sea but have left them for the use of Holland Severals and that the
world may see how unjust this complaint is we will prove that the current of waters which did formerly run by their old Drayns through Holland's Severals to the Sea doe now runne backwards into our Drayns and we doe carry those waters by our Rivers into the Sea another way by which it is clear that our Drayns are of use and their old Drayns are of no use And by this it 's also clear that the Lands alotted to us are the lowest Lands in the Levell because both from Kesteven side and from Holland side the waters doe run into our Rivers and by them into the Sea And by this also it appeares that the Earles 14000. Acres being the lowest were the most drowned and so the worst before the drayning and now the said Lands bearing good winter Corn 't is as evident that the Earle hath done a good work and performed his Contract fully when that which was worst of the Fens is made the best by him and that Holland Fens are as well drayned as his own so that two parts of three is better drayned then by his Contract he was obliged and Kesteven being the other third part is as well as art can make it and as well drayned as by his Contract he was bound to doe 13. They say That the Earle tooke possession by force of Armes and kept his possession by Troops of Horse and great Guns and by murdering the people We answer That we have proved our comming peaceably into possession by authority of a Decree of Sewers and that we did build plow and reap two yeares crops quietly and part of the third summer crop also in all which time there were neither Troops or Guns used or any man slain we have also proved that our houses were pulled downe our Corne burned our Draynes spoiled our Tenants thrown out and our possession taken from us by violence while we made no resistance For while my house was pulled down the Sheriffe and a Justice of peace looked on and did use intreaties but no force to make the riotters desist What was done by Sir Edward Heron when he was high Sheriffe I know not for we were then driven out of the Country only I have seen severall orders from the Parliament to require him to quiet our possession and I believe by his place he might call aid to assist him for preserving the peace of the Country which our adversaries now call a force Nor doe I know what happened by Troops in the following war which was after our being ejected I doe undertake to prove that my brasse Gun so much talked of was a raritle made by my Father which I did for many yeares remove from house to house where ever I dwelt as an ornament to stand in my Hall I also say that my selfe was out of the Country when my house was pulled downe and never since have seene the place it stood on till this last Summer 1649. 14. They say That the Commoners were imprisoned by the Lords Orders We answer That when any of the Commoners were indicted for riots proved before the Commissioners on oaths that the Jurie did still acquit them which did encourage those ill affected to hire some poore man to cut the Earles draines by which in one night great quantities of Corne was drowned To prevent this evill the Earle was constrained to petition the Lords and to seek a speedier remedie then to sue a poore man not worth a groat for a 1000l damage during which suit the evill would still be acted by others 15. They say That the Country was denied the benefit of the law by the Earles Priviledge of Parliament We answer That in the dayes of the Lords House the Earle had such a Priviledge and yet he did decline his Priviledge and submit to the judgement of a Committee of this Honourable House and while the cause did depend in hearing before them he was throwne out of his right by those who now complaine against us which was a higher contempt against this Parliament than ever was done before to a Parliament and a mighty oppression upon us by our adversaries 16. They say That this Parliament hath declared against the drayning of Fens as a grievance to the Common-wealth We answer That we believe it is a mistake in our adversaries and that if there be such a Declaration it was on some other Fens and on mis-information or before they were fully informed what great benefit the State would receive by drayning as appeares by their subsequent Act for the setling of Bedford levell in the preamble of which Act they recite what benefit the Common-wealth receives by draining 17. They say that Sir Robert Barkham's case was judged in Parliament against me We answer That Sir Robert Barkham's case concernes Sir Anthony Thomas his levell and is for his ancient inclosed severalls on the title of melioration and is in no kind agreeing with our case in question for we claime only commons and have not toucht any severalls nor yet demanded any meliorations though they be due unto us 18. They say the Earle and his Participants have drained the dry Fens towards Bourne and not medled with the drowned Fens towards Lincolne We answer That the Earle hath drayned above one half of his Levell and according to his contract had 14000 acres set out by the Commissioners that hee might by re-imbursing part of his money be inabled to goe through with his whole undertaking but the Countrey having by force taken the 14000 acres from him how is he able to go on with his work They beat us out of the Country and now complaine that we doe not finish our work And yet in this too they are mistaken in what they say for the Earle hath made his Sluces and his Rivers at the out-fall of a double capacitie for his first levell from Bourne on purpose to receive and carry off the waters of the second levell from Lincolne so that a great part of that second worke is done which they understand not that say the Earle hath not begun his workes towards Lincolne There is also a forty foot Drayn of 8 miles long made with a particular Sluce to it for the levell towards Lincolne and two 15 foot drains more for the same levell to Lincolne 19. They say That the Country was defrauded by the Commissioners who sold the Earle too much land by his Contract We answer That the Fens in question were before the draining worth but 40s an acre and so the Earle sold those lands at the time to all that would buy of him And we say that if by our labour charge and hazard the same land be now worth ten pound an acre they doe complaine unjustly and may by this rule value a ship returned from the East-Indies at the rate it was set out which were a good way to overthrow all industry in a Common-wealth 20. They say That the Earle hath taken more land then