Objections to the Premissies.

ALTHOUGH the Lands in question were set out by the Re­duc'd Collumn, as aforesaid and no alteration or correction was made thereof by page 33 of the Act of Settlement. Though the King and Government allowed the Reduced Collumn anno 1662. and 2 Judg­ments passed for it anno 1663/4 though the Court of Claimes allowed 54000 Acres by the extreme Collumn to pass in satisfaction of 2551 l. debt, Though the Lord Lieutenant and Council represented to the King the Inconveniences [Page 8] of the extreme Collumn anno 1670. and though the present Chancellor and Lord Chief Baron of the Exchequer, together with the Lord chief Justice Booth and Sir Richard Reynell charged all quitrents in Conaught Anno 1677 upon the aliquot part & not the extreme measure; yet John Marshall was advised to plead Anno 1678, To which the Attorney General Replyed in behalf of the reduced Collumn once, twice, thrice & a fourth time, and the late farmers (designing to gain 30000 l. by the extream Collumn,) did, after 2 yeares sinister machinations, upon the 20 January 1680, object as followeth.

Viz.

object. 1. That the Column of aliquot parts or values and the reduced Collumn, were sinisterly pasted on to the Books of the Survey, since their being put into the Office.

Answer. The contrary was proved by those who made them, and the view of the Books doth shew the same to be Impossible, and where the reduced Collumn is cleerest, There are no pasted Labells at all.

Object. 2. The latter Branch of the Printed Instruction, was not Intended for distinguishing Profitable from Ʋnprofitable, and therefore did not Warrant the distinguishment as it stands in the Reduced Collumn.

Answer. The Surveyors Swore they understood it so, and Acted accor­dingly, and their work was admitted after special debates there upon; Besides the words of the Instructions explain themselves.

Object. 3. That the said Latter Branch was only to exempt the Surveyors from measuring small parcells otherwise then by Estimate.

Answer. Their First Instruction Oblidged them to measure the smallest parcells, of Forfietd Lands; and their Books are full of parcells under ten Acres, and some of under an Acre, are returned by their Quantity, Figure and Scituation, and not by Estimate.

Object. 4. That the Instruction (if it were intended for distinguishment of Profitable from Ʋnprofitable) was not pursued: But instead of such Distinguish­ment, There was onely a Par made between the best and all other Lands, by set­ing forth how many Acres of the latter, was worth one of the first, or best.

Answer. The Fact is denyed, for the Par, was between doubtful intermixt Lands and indifferent Good Pasture, or the Course Arrable of the place, which is the same as Profitable: so as the Reduced Acre (though compos'd of 40. Acres) was worth but about 14 pence before the War (as appears by Re­cord) and Lett Anno 1678 for less, by the late and present Farmers.

Object. 5. The Surveyors had no Standard whereby to make this Par and therefore the same is a meer Whimsey, and void.

Answer. 1. They had a better Standard for this distinction between profi­table and unprofitable, then they had for doing it by Lines.

2. They had the value before the Wars, and the advice of the most expe­rienced men of the Country, In so much as they did not differ from the civil Survey (allowed by the Act) above 500 in 21000 Acres.

Object. 6. They did not return how mmay Acres of course Land was worth [Page 9] One of Profitable, but of Pasture, and so varied from their Instructions.

Answer. In Straffords Survey, Pasturable and Profitable was taken for the same thing: (most Lands being Profitable but as they are Pasturable) for what is termed Pasture in the Collumnes, is called Profitable upon the Maps of Straffords Survey, as it also is on the Kerry Survey.

Object. 7. The Instructions require the returning of the aliquot part, But the Survey Mentions no Aliquot part, But how many Acres of course is worth one of Good, or the like.

Answer. Tis The same thing to say That the Lands A, are One Quarter Profitable, or Pasturable, as to say, That 4 Acres of A, being course Dubious intermixt Lands, are worth One of indiferent good Pasture, viz. such as was worth 14. d. the Acre before the Wars.

Object. 8. The 4th Collumn (which is the total content) seemes to be the ex­tream Collumn, and the 5th, (now called the extream) to be the reduced Collumn, and the 8th. (now called The Reduced Collumn) to be an Ʋnreasonable Reduce­ment upon a Reducement.

Answer. 1. The total of 2, or more Numbers, is never called the Extreame of such Numbers, Nor is the part of a total, ever Termed, the Reduce­ment thereof. 2. No Lands intirely Profitable (standing in the 5th Collumn) was reduced in the 8th. but were the same in both. Lastly, In some Baronies, the 4th. Collumn is wholely omitted, being onely the Result of other Collumns, and put in for Conveniencie onely.

Object. 9. The 5th, or Extream Column hath for Title the Word [Profi­table] in most Places.

Answer. In that Title the word Profitable must be understood dubious inter­mixt Profitable made clear and neat Profitable by the 7th. Column, and set off in the 8th. Collumn, As a Stack of Corn is called Corn, though mixt with straw & Chaff; but the same being Winnowed by the 7th. Collumn, The 8th Collumn doth contain the Corn in the sack, or fit for use, so as the 5th, 7th, and 8th Collumns, are as three Syllables of the same word? Nor can either of them be used alone or a part.

2. The Surveyors have sworn this to be their meaning in their Returnes, The Bookes themselves shew it, but the Maps and abstracts more expresly, Besides; in the Barony of Corcaguiny, The extreme Collumn hath for Title [part Profitable,] and the Reduced Collumn hath for Title [Profitable] and this Barony was Surveyed by the same hands upon the same Instructions with the rest. Moreover, The Maps are alike, even where the Titles differ; and the words [Acres to be deducted to make the other Profitable] are in both Forms? Nor were the Surveyors limited to the method of their Collumns, and the variety of their wording doth best prove the unity and Identity of their meaning.

Object. 10. These Aliquot parts or values, are no where but in Kerry? nor there, but where Petty and Marshal are concerned.

Answer. [...] The Aliquot parts (or Reduced Collumn which is the same thing) are in 4 Baronys of Kerry where Petty and Marshall are not at all concern­ed, Nor have they any interest in Tirawly nor in the rest of Conaught or Clare.

[Page 10]The aliquot parts are also in the Down Survey of Tyrawly and every where in Conaught and Clare; And although these three Surveys are repre­sented in three several Forms, Yet in Substance, and in their Maps, They are all One, and the very several Forms are Convertible each into the other

Object. 11. That the Law saith the Profitable Acre ought to consist of 160. Perches, but by admitting the Reduced Collumn, the said Acre may contain 2000. or more Perches.

Answer. If in a Surround of 2000. Perches, the Tussocks and spots of Pasture, amount but to 160. Perches, Then the Whole Surround is but one Acre Moreover, notwithstanding this Law, 5000. Perches, were charged but as one Acre in Conaught by the present Judges of the Exchequer, and other. Judges also, in the year 1677. upon the Settlement of Conaught.

Object. 12. 1 Those that set out Lands Anno 1655.

2. Those who charged Quitrents Anno 1661.

3. And the Court of Claims, did all take the extream Collumn for the legal content.

4. And Dr. Petty was paid for Measuring according to the same.

5. Nay, those who had judgments for the Reduced Collumn did afterwards quit them, and submit to the extream, without Reluctancy.

Answer. These 5. Objections are briefly answered thus.

1. Those who set out Lands by the Extreme Collumn did it,

• 1. Before the Survey was settled, and without Order.
• 2. By private Agreements, not publick Authority.
• 3. In a way (by depressing the Act Rates) which was Equivalent to the doing of it by the Reduced Collumn, and according to what was then a Law.

2. As to charging Quitrents by the Extreme Collumn, It was done by un­skilful persons most erroniously, and soon after corrected by the King, & Chief Governours of Ireland, and by two Judgments of the Court of Exchequer. And all this, before the Down Survey or Quitrent was confirmed by the Acts.

3. What the Court of Claims semed to do, was done by their Sub-Commissio­ners who Acted by bookes which had not the said 2 Collumns in them, who were under a Byas of Acrage, and what they did of this kind in the Lord Dillons decree, was afterwards corrected by the Exchequer.

Moreover, the Court of Claimes themselves allowed 54000 Acres in satis­faction of of 2551 l. debt, whereas less then 6000. Acres answers the same.

4. That Dr. Petty was paid by the Extream Collumn, is a matter uncer­tain and full of questions: But if he were not, he ought to have been so paid by the Extream Collumn for that his Contract bears it, and because he ought to have rather more then less wages, for measuring of Bogs, Rocks, Shrubs and Loghs, and for making of extraordinary Collumns and Estimates, then for Measuring of plain and pleasant places.

5. Those who quitted the Judgments which they had for the Reduced Collumne, did it for far greater Advantages- And those who suffered them so to do, and to Retrench by the Extreme Collumn (to the great da­mage of the common stock) may at some time or other be question'd for it. For all these Transactions were made truly Subsilentio; And whether they be good or not, must be lest to the Law.

Another sort of Objections.

Object. TIs Dangerous to alter what the Court of Claims have once done and Executed.

Answer. The charge of Quitrent made by the said Court was Judicially al­tered in the Lord Dillons Case, being the very same with this? 2, This Act of the Court of Claims was but Ministerial.

3. They were [though worthy men] both Judges and parties in this mat­ter.

4. They held forth an Easier Quitrent viz That of an half peny per Acre by the extream Collumn; so as Marshalls Lands in Dunkeron (which are chargea­ble with 103 l. by the Reduced Collumn) would at an half peny per Acre by the extream Collumn, come but to 74 l. which sum stands still in their Certificate.

5. Moreover the Earl of Essex his Reducement did supersead what the Court of Claims had done; 6. Besides they Acted by defective Copies of the Down Survey, in Which the Reduced Collumn was wholely omitted.

Object 2. That the Earl of Essex had moderated these Quitrents from 492 l. to 148 l. per annum, and that his Certificate [taken out thereupon] was an Estopel to the Pleadant's claiming the Reduced Collumn.

Answer. 1. The Lawyers have by Book-Cases shewn, that the mention of an Estopel, is not onely Odious but in this Case Illegal, and dishonourable to the King.

2. It was never pleaded to be an Estopel in the Attorney Generalls four Replications, and that tis too late to plead it now.

Lastly, The Earl of Essex his Certificate was not to take Effect, till Letters Patents were accepted upon it, which was never done, because the said Certi­ficate had many things in it, which [in respect to those who made it] shall not be mentioned? Nor had the Earl of Essex &c. any intention or authority to raise Quitrent above the Law, But to abate them so much below the Law, as might incourage Plantation.

Object. 3. Although the Attorney General hath confessed that the Reduced Collumn is an integral part of the Down Survey and made upon the Printed In­structions, that the Method of this Survey, is the Rule for satisfing the Sol­diers and charging Quitrents, That the Lands in the Extream Collumn are but dubiè & confusé Utiles, That the Lands in the plea were set out by the Re­duced Collumn, That the Conaught Survey is the same as in Kerry, and that the Charging of Quitrents there, is the same as is demanded here &c.

It was said, That his Confession (though so often and deliberately reveiwed) was of little weight.

Answer. The Law-Books shew, that in Matters of fact, his Confession binds the Court, for otherwise his Confession was of lesser force then that of the meanest Attornyes which bindeth his Clyent; Besides, the Fact confessed; was all proved over again before the Court.

A Third sort of Objections, were Answers to what Marshal had pleaded viz.

Object. 1. THat the 2 Judgments of the Exchequer in behalf of the Reduced Collumn, passed Subsilentio and were after­words declined.

Answer 1. They were exposed to all persons concerned.

2. The Record publickly read in Court.

3. They were grounded upon Certificates of the surveyor General and the oath of the particular surveyor.

4. The King, the Lords Justices, Lord Lieutenant & severall Judges and pri­vy councellors allowed the same & the like things; moreover the said Judge­ments were declined subsilentio for sinister ends, & for greater advantages but never Judicially or otherwise null'd to this day. Lastly, it apears not how little, or how much that Strepitus must be, which the Law calls Silentium.

Object. 2. That though 54000. Acres seem to have been set out for 2551 l. which summ requires but 5668 Acres at the Act Rates of 450 l. per thousand Acres in Munster, Yet in truth 5668 Acres were only set out in satisfaction of the said debt, and that the rest [being above 48000. Acres] were cast in for satis­faction of Incumbrances and Chiefryes wherewith the Lands were charged.

Answer. It is strange That the Incumbrances were 8 times more then the Value of the Land? or that 5668 Acres of cleer Lands could not have been found amongst the 54000 Acres inserted into the Certificate of the Court of Claimes; besides such a way of proceeding is without precedent, as well as without Reason.

Object. 3. That although the Lord Lieutenant and Council upon report of the Committee of the Council, (by Instruments signed by the Lord Lieutenant, Lord Chancelllor, Lord Chief Justice, Lord Chief Baron and many others) had recommended the Reduced Collumn to be Judicially confirmed, (as it had former­ly been) That the extreme Measure had been a loss to the King, and would in­title the Farmers to Defalcations &c. Yet the King had done nothing upon it

Answer. The King (by his several Letters since) hath pressed the Con­sideration and Settlement of the Reduced Collumn; and this plea it self was filed upon an Order of the Lord Lieutenant and Council in Trinity Term 1678, grounded upon his Majesties said Letters, and after the Earl of Essex his Re­ducement to 148 l. had been made.

Object. 4. That the Conaught Survey was not like the Kerry Survey, and that if the Late Commissioners for the setling of Conaught had charged Quitrents onely upon the Aliquot part, and not the extream content, It did not concern the Pleadant to take notice of it.

Answer. 1. The Kerry and the Conaught Surveyes are the same in substance and in their Maps, though they do differ onely in the form of their Books of Reference.

2, The Reason of charging Quitrents in Conaught by the Aliquot part, is far less, and less Warrantable then in Kerry, and those transactions are pro­duced by the Pleadant as precedents à fortiori; for that the Reduced Acres of Conought, are of Triple value to those in Kerry; And for that the present Chan­cellour, and Lord Chief Baron of the Exchequer, were Judges and Com­missioners with the Lord Chief Justice Booth, and Sir Richard Reynel for Conaught: so as these Transactions were also pleaded as Arguments ad hominem as well as ad rem.

As to the other Chief Question, viz.

WHether, according to the true meaning of the Clause in the 37th Page of the Explanatory Act (Which appoints, That the legal Quit­rents shall be so Moderated as to incourage Plantation) That for scarce three years enjoyment of the Premisses, The Kings Ministers shall dispose of them the remainder of 21 years and a half, and (We might add) give the pro­fits of them to those who never had any right thereunto, and who have Grosely contemned and Violated the Orders of Court made concerning the same?

As to this question, We shall onely leave the Reader to an afidavit made the 25th of July 1681, before the Lord Chief Baron and hereunto annexed, until further proceedings shall call for a larger discourse both upon this, and the former question also? Onely Noting for the present, That out of the said Afidavit, there do arise the following Arguments for discharging of the said Lands from all Seisures Custodiums &c. viz.

1, Arg. It is most certain that the King hath had these Lands by seisure & Custodium from Easter 1675 to Michaelmas 1681, which is 6 years and a half, and that the Grantees never medled with them in any measure, but be­tween Michaelmas 1668 and Easter 1675, Which is also 6 yeares and a half: so as by the severest Rules that ever were conceived, the King was never to have one half of the Profits for his Quitrent, as (in this Case) he hath had.

2, Arg It is certain, That (besides the said 6, years and a half from 1675 to 1681.) the King and others (under him) did also possess the premisses from Easter (1660 to Michaelmas 1668, which is 8 yeares and a half more, making in all 15 yeares, which is certainly sufficient to pay the Quitrent for 6 years and a half,

3 Arg. of the 6 years and a half (hitherto supposed to have been enjoyed by the Grantees) It will appear, That not 3 years of the said 6 years and a half, hath been so enjoyed by them, viz.

1, By Reason of Levari's and Seisures happening within the said 6 years and a half.

2, By the Usurpation of certain persons called REFRACTORIES.

3, By the frequent and cruel distrainings of the late Farmers for what was neither due nor possible to be paid.

4. For that the 2392 l. (acknowledged to have been recieved) is not full 3 yeares Rent according to the Leases by which the Grantees did, or might have let the same, if they might have been quiet.

Wherefore 3 yeares and a half of the said 6 years and a half, was held by the King and those who directly or indirectly made use of his Name; so as the said 3 yeares and a half added to the last mentioned 15 yeares, makes 18 years and a hlaf, and is a sufficient quitrent for the other 3 yeares,

4, Arg. The said 2392 l. is not 2 years and a halfs Rent according to the pre­sent Custodium Rent of 1120 l. per annum; so as the Question now is, whether 19 years be a sufficient Quitrent for 2 yeares and a half?

5, Arg. The said 2392 l. is not One year and a halfs Rent, at the Rate of 1830 l. per annum: which the Farmers have certified the Lands, which yeilded the said Money, to be worth; so as the last Question? is, whether 20 yeares, be not a sufficient quitrent for one year and a half, Whereas by the Earl of Essex his most severe Rule, one year should suffice for that purpose: so as the other years (all quitrents being discharged,) together with the value of the said Woods) is to be accompted for, to the Grantees:

6 Arg. Moreover, although the Earle of Essex and the other Commissioners made a Rule, That ⅖ parts should be given to the King for Quitrent, (against which, there are many weighty Objections) yet even according to that Se­vere Rule it self, The King was paid his quitrents by Anticipation, even in that proportion up to Easter 1681 by the first 8 yeares and a half; for that 8 years and a half, is the ⅖ of 21 yeares; & a quarter; But It will rather appear, That the King had these Lands ten years before the Grantees had any profit at all out of them, and consequently was paid up till the year 1685; and moreover that he had held them the Equivalent of 15 yeares, when the Grantees had held them but three yeares before the Custodium was granted Anno 1678; And also that the said Custodium was granted after his Majesty (by the advice of the Earl of Essex himself and Lord high Treasurer of England, in his Letters of the 28th of April 1676 and the 8th of December 1677) had directed the con­trary.

These 6 Arguments (rising gradually one above another) We hope, will be as Easy stairs by which the Lamest understanding may get up to the Top of this Truth; to wit, That the said Lands ought now, to be (and long since to have been) discharged from all seisures, Custodiums &c. even according to the severest Rules that ever were made in pursuance of the said Clause in the 37th Page of the Explanatory Act; But much more, according to the Rates made by the Lord Lieutenant and Council, and according to the dictates of common sense and Reason, and the common Rule of the whole King­dom, For if but one year in 8, or if but ⅛ part of the Profits be generally given to His Majesty for Quitrnet throughout the whole Nation; then It is won­derful, That above 18 years disposure of the premises should not have satisfied the Kings-quitrents for the Grantees enjoyment of the same but 3 years onely, As the Subsequent Afidavit Importeth.

The Affidavit made before the Lord Chief Barron Hene.