The case of the Kerry quit-rent, 1681

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 Quit∣rents 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 pro∣fits 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 be∣tween 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 pre∣sent 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 Se∣vere 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 con∣trary.

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 King∣dom, 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 won∣derful, 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.