THE CASE Of The KERRY QVIT-RENT 1681. GENESIS 47 Chap. 23 24 25 26 27 v. 23 Then Joseph said unto the people Behold I have bought you this day and your Land for Pharoah lo here is seed for you and ye shall sow the Land 24 And it shall come to pass in the increase that you shall give the fifth part unto Pharaoh and four parts shall be your own for seed of the field and for your food and for them of your houshold and for food for your little ones 25 And they said Thou hast saved our lives let us find grace in the sight of our Lord and we will be Pharaohs servants 26 And Joseph made it a Law over the Land of Egypt unto this day that Pharaoh should have the fifth part except the Land of the Priests only which became not Pharaohs 27 And Israel dwelt in the Land of Egypt in the Countrey of Goshen and they had possessions therein and grew and multiplied excedingly The Land was Pharahos and the Men his slaves Yet but One Fift for Seed and all he craves The Tenants throve and multipli'd so as The Rate of Fifths a Law for long time was But two Fifths without Seed from th' Owner's Soare 'T is thrice as much as Pharaoh took and more Well have We three Fifths left Not One We say Strange Rules took two Mistakes the rest away What if for three years We have pay'd Nineteen In AEgypt Never so od a Rule was seen Do'nt Pharaoh cruel Nor the worst bondage stile AEgyptian 〈…〉 in our Isle The CASE of the KERRY Quit-Rents 1681. COurts of Judicature are open to all comers and Those who hear their proceedings are Judges even of the Judges themselves Now the persons concerned in this Case have had the Judgment of so many By-standers whilst their Cause was Arguing in the Exchequer That they are incourag'd to expose it in Print to the Judgment and Cognizance of the whole World And have together with their Case Printed an Afidavit also which may serve as a Juramentum Calumniae Importing that they themselves think well of their own pretensions and that what they contend for is not a small or frivolous matter and may perswade the Reader that the grounds whereupon they proceed are not onely true but that the dealings which they have had upon them are Wonderful They are not unmindful that to Print their Concernments is lyable to many dangers and Inconveniencies But believing that their Arguments are founded upon Eternal Truths not temporary Tricks They hope that no Caprice Prejudice Revenge Surprise sly Insinuation Ridiculing of Right pretence of Intricacy power of Factions Envious disposition nor other secret causes can finally prevail against Laws founded upon common sence and reason Wherefore and for that they expect their Adversaries will also be upon Oath and in Print concerning this Matter They venture out and say that the Case of the Kerry Quit-Rents consists of these principal points or questions viz. THere is a Survey wherein the Quantity of profitable Lands is set forth in two several Columns The one commonly called the Extream Collumn And the other the Reduced Collumn Now the Question is By which of these two Collumns the Kings Quit-Rent ought to be charged and paid 2 Whereas the Plaintiffs have enjoyed the Lands set out to them scarce three years of 21 years and a half and the Kings Ministers have disposed of them for the rest of the time The question is whether by the intention of the Clause in the 37th page of the Explanatory Act which is to incourage Plantation the Quit-Rents be not fully satisfied which Collumn soever be the Legal Measure or what money soever be the true Value of the Lands so as the Plaintiffs at the end of the said 21 years and a half might justly be restored or rather admitted to the possession of their Lands Many who have been acquainted with these Questions need not to have them explained But the rest of the World for we address to the whole World must Wherefore we say as followeth to the first viz. 1. That Soldiers whose Lots fell in Munster were for satisfaction of their service To have Lands at 9. shillings the Acre at a time when Lands were not worth 7 years purchase Though we shall reckon them here at ten So as the Lands must be worth about ten pence three farthings per Acre to make such a satisfaction and because about 3 pence three farthings must be paid out of it as an yearly Quit Rent to the King The Lands must be worth 14 pence half peny the Acre or otherwise it will not be satisfactory or profitable in the sence of the Law 2. In some parts of Munster much Lands were wholly unprofitable as Logh being no Land at all Rock upon which no grasse Grew Bogg on which the little that grew was inaccessible but in some few monthes of the year And in this same Country few Lands were worth above 2 s. 6 d. the Acre before the Wars when they were and might be peopled and enjoyed and Anno 1655 when the same was Surveyed not ⅓ thereof So as almost the whole County consisted of Lands dubiously confusedly and intermixt profitable worth before the Wars between 1 d. and the said 2 s. 6 d. per Acre The Medium whereof is about 15 pence half peny as the value of indiferent good pasture Lands and no Ill Standard and Measure of profitable Lands in Order to a competent satifaction of the Soldiers 3 In Order to this Survey an Instruction was given Printed and published Anno 1654. for distinguishing between profitable and unprofitable in these words You are to distinguish by admeasurement the profitable from the unprofitable or return by good Estimate the Aliquot part of the same in case the One lyes dubious and confused Or in very many and very small spots among the other The meaning whereof was That if the distinction or bounds between profitable and unprofitable were very plain and cleer that the distinguishment should be made by Lines to be Geometrically admeasured and described But where a parcel of Land containing in Geometrical content suppose 100 Acres had no more Tussocks of Pasturable grasse growing within its whole circumference then were equal to 25 Acres Or if the whole 100 Acrers were accessible for Cattle but 3 monthes in the year or if but one quarter of the grasse were good food and the rest useless weeds or that 4 Acres thereof were worth but one Acre of the worst Arable in the same parish or Barony or about 15 d. per an We say that the meaning of the said Instruction was that the Surveyors should by good Estimate return the Aliquot part by saying as in this Instance that the said Parcel of Land did contain 100 Acres whereof one quarter was profitable or indifferent pasture or which is all one whereof 4 Acres are Equivalent to one of profitable or indifferent good pasture or course Arable or
whereof 4 Acres are worth about 15 d. the intended value of one satisfactory Acre 4 In pursuance and according to this Instruction the Surveyors have returned Books in these several forms folloing viz. IN KERRY Down Survey 1 2 3 4 5 6 7 8 Numb in the Plot Proprietors Names Denominations of Lands Number of Acres by admeasurement Lands Profitable Lands Unprofitable The Value of Course Pasture shewing how many Acres is worth one of good Pasture The Profitable reduced according to the value or deduction being made according to the Value   Brosna 40 40 40   Killen 50 40 10 40   Rossan 120 120 6 20 1 2 3 4 5 6 7 Num-ber in the Plot Proprietors Names Denominations of Lands Number of Acres by Admeasurement and the quality of the Lands part-Profitable Acres equal to one in value Lands Profitable Lands Unprofitable   Brosna 40 40   Killen 50 40 10   Rossan 120 6 20 And in Tirawly Down Survey 1 2 3 4 5 6 Number of Reference Proprietors Names Denominations Total Content Profitable Unprofitable   Brosna 40 40   Killen 50 40 10   Rossan 120 20 100   Profitable ⅙    And in Straffords Survey of Conaught and Clare made before the Wars 1 2 3 4 5 6 Number Proprietors Names Denominations Profitable Mixt Wast   Brosna 40   Killen 40 10 0 00   Rossan 120 0 00   Profitable ⅙    All which Down Surveys were delivered into the Surveyor Generals Office in manner and form aforesaid after many sorts of previous examinations and after the Bonds for making the said Survey were delivered up and cancelled anno 1657. and before the Lands in question were set out which were set out by the reduced Collumn and the said Surveys and distributions were confirmed by pages 31 and 33 of the Act of Settlement But most of all by pages 9 and 10. As also by pages 21 22 and 23 of the Explanatory Act even with all their faults if any were in the same 5 After this Survey was so Recorded 5 certain parishes in Munster were given out in satisfaction of 9295 l. at the Act rates of 450 l. per Thousand Acres which said parishes do contain 21000. Acres by the reduced Collumn and do just answer the said debt but contain 138 thousand Acres of Lands dubiously and confusedly profitable by the extreme Collumn which Number payes it neer 7 times over and the Civil-Survey made by the Oaths of the most experienced Inhabitants of the place by a Jury and before sworn Commissioners returned the same Lands to contain 20700 Acres which the Reduced Collumn of the Down Survey makes 21000 Acres as aforesaid and is more then the Civil Survey which is also approved by the Act doth make it 6. Upon some Mistake of charging Quit-rents by unexperienced persons soon after His Majesties Restauration according to the Extreme Collumn His Majesty anno 1662 rectifies the same by bringing down His Quit-rent to the Reduced Collumn The Court of Exchequer anno 1663 4 do the same by 2 formal Judgments The Lord Lieutenant and Council did also Report unto and advise His Majesty to have the said Reduced Collumn Juditially establisht And two of the present Judges of the Exchequer and several other Judges anno 1677. upon their Settlement of Conaught charged Quit-rents only upon the Aliquot part profitable And the Kings Attorney General in 4 Replications to the Plaintiffs Plea hath confessed That the Extreme Collumn though in some places intituled Profitable contains Lands but dubiè Confuse utiles and that the Reduced Collumn contains the number of Acres satisfactory and is the Method of the Down Survey Moreover not only several parts of the Survey Books do expound one another but the Authors of the said Survey besides their former Oaths have viva voce in open Court Sworn the Intension of the said Survey to be as aforesaid 8 It is to be further Noted as followeth viz. 1. That the aforementioned 21000 Reduced Acres of the said 5 parishes are returned by the Civil Survey to have been worth before the Wars 1232 l. 18 s. 6 d. which is just 14 d. the Acre Out of which 3 d. ¾ Quit-Rent must be paid Now some of the Reduced Acres are compounded of 40 Geometrical Acres standing in the extream Collumn But to charge the said 40 Acres worth but 14 d. with 40 times 3 d. ¾ or 12 s. 6 d. Quit-Rent is absurd and impossible especially when according to the common Level of the whole Nation the Quit-Rent of such Lands would be under 2 d. 2. The Adventurers had the best Lands in Ireland allotted to their satisfaction and yet one quarter thereof is returned for absolutly unprofitable and chargeable with no Quit-Rent at all But here scarce 1 40 part is returned for absolutely unprofitable which shews That the unprofitable doth stand in the Extream Collumn intermixt with the Dubie confuse Vtiles as the Attorney General and the Printed Instruction call them 3 In the Books of Corcaguiny The Extream Collumn which is in some other places intituled Profitable though in the sense aforesaid is intituled Part Profitable and the Reduced Collumn hath no other Title then Profitable In this Barony there are no pasted Labells Nor hath Sir Wm Petty or Rob Marshall any interest in the same Nor is the Collumn of totall contents being the same with the 4th Collumn in other places at all expressed so as in this Barony The reduced Collumn is most indisputably and litterally meant and expressed for the profitable measure and this Barony Was returned upon the same Instructions and by the same hands as the rest were The Maps in both are a like though the form of the Collumes do differ and in both places the diference between the contents of both Collumnes is thus expressed viz. Acres to be deducted to make the other Profitable Which is the same as to say Acres to be deducted out of the extreme Collumn to make the Acres of the Reduced Collumn profitable So as the Title Profitable in the extreme is and must be interpreted by the 7th Collumn of values or Aliquot parts which is an Integral part of the Down Survey and can signify nothing else Thus the 5th Collumn may as well be called Profitable as a stack of Corn may be called Corn Besides there stand many parcels in the said extream Collumn which in Truth are wholy absolutely Profitable never reduced to a lesser Number in the subjoyned Collumns as hath been rashly and vainly alleadg'd Now these parcells wholy profitable and all the rest being part profitable had upon good consideration the Title of profitable put over them Because the Collumns imediately adjoyned as also the Maps Abstracts Instructions Values and Corcaguiny besides the Surveyors themselves did all expound and limit the same in that sence which all Unbyassed partys have still understood
and adjudged it The Other meaning being absurd and Naturally impossible And even the Court of Claimes did allow 54000 Acres of Lands profitable according to the extreme Collumn in satisfactision of 2551 l. which is 9 times more then was due at the Act rates of 450 l. per thousand Acres 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 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 Vnprofitable 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 Vnprofitable 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 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 T is 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 Vnreasonable 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 â— 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 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 T Is 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 t is 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