When Chichester realised that the Charter to the Londoners was to include the Bann and Lough Foyle, he began a game of cross-purposes to undermine the royal project. On the return of Sir John Davies from London, bringing him the gift of O’Doherty’s barony of Innishowen (July, 1609), he got the Attorney-General to join him in a fresh intrigue against the King. They planned an excursion to Ulster, ostensibly for the purpose of executing a Commission—long out of date—to ascertain the ecclesiastical lands of the Sees of Derry, Raphoe, and Clogher; but in reality to devise means to thwart his Majesty’s policy.

The Commission was issued on the 2nd May, 1606, three years earlier, and, therefore, was utterly stale. The Flight of the Earls was already an event two years old, and one which left Bishop Montgomery in undisputed enjoyment of Catholic dues. Yet the Deputy was smitten with such heady zeal for Church interests in 1609 that he must needs visit the Ulster vineyard in haste to care for the elect under the pastoral eye of the Attorney-General.

Before setting out he performed a miracle worthy of his pen. This was to “annex” to the spent Commission of 1606 “certain articles of instruction under the Great Seal of Ireland” so that he should be enabled “to inquire of divers things in the said Commission and articles of instruction.” In vagueness nothing could be more studied. The added “articles” were dated the 21st July, 1609, and they completely altered the scope of the Commission. The King had directed a merely ecclesiastical inquiry, but the Deputy, who for three years neglected to hold it, “amended” the royal instructions in his own behoof. Great was the magic of “amendment.” He was careful not to enrol or record the alterations; and, therefore, the added “articles” remain as undiscoverable as the Bassett-Hamilton conveyances, or the Patents of 1603.

Under their authority Chichester sat with Davies and others at Limavady on the 30th August, 1609, and held a Court. His purpose was to set up a claim to the Bann in order to oust the Londoners, and so overreach them that their Charter in that respect must prove a nullity. In the castle of his prisoner, O’Cahan, knowing that the Crown was striving to perfect the contract with the Undertakers, he empanelled a jury of Brehons and leading natives to defeat the intentions of his royal master. The jury, under the original Commission, could only have ascertained the title to and scope of Church rights, but under the invented “articles of instruction” the Deputy got them to add a finding which declared that the Bann, from Coleraine to Lough Neagh, with its bed and soil, belonged to himself.

The Brehon jury was first set on to make voluminous ecclesiastical pronouncements; and, having spent the day thereat, they completed their work with the verdict in Chichester’s favour. He presided over the inquiry himself, as he did in the suits of “O’Cahan against O’Neill” and “Hamilton against MacDonnell.” Doubtless, he strove to impress the “lewd” Brehons by his judicial bearing, but they understood little of his purpose. They spoke Gaelic and Latin, but not English; and Sir Arthur laid before them his grant of the river to Hamilton in Latin, and Hamilton’s Latin assignment to himself. Their “finding” he set down in English—a tongue then rarely used in legal documents. Its import was unknown to them, and his scribes, doubtless, wrote out whatever he desired. It is tacked on at the end of a long ecclesiastical verdict, with which it is wholly disconnected. The Brehons had been assembled to declare and earmark the local belongings of the Church, and were asked by the presiding judge to decide that the Bann was his property. If they really did so and if the “tack” was not subsequently made Davies must have enjoyed the sight of the Deputy “charging” a wild Irish jury in Latin in his own interest, and availing of their lack of English to cheat the English King.

The verdict when engrossed was personally signed by Chichester. The Archbishop of Armagh and the Bishop of Derry added their saintly names. These were followed by the signatures of the Attorney-General, the Chief Justice, the Surveyor-General, and the Vice-Treasurer. The “lewd” Brehons’ finding was worthily witnessed in Church and State. As Parsons subscribed it his mind must have turned back in placid contemplation to the Antrim Inquisition of 1605, when he first shuffled the cards to jink success to his master in the great game he was playing.

The Deputy, from beneath O’Cahan’s roof, dispatched an austere account of the proceedings to the King. Having circumvented the royal policy, he edified his Majesty by inveighing against “the insatiable humours of craving men,” and held forth on “the duty and service I owe to my sovereign.” He wound up with the boast that “the justice of the land, without being thought a praiser of myself, was never distributed with more clean hands in this kingdom.” Davies sent a companion report which glowed with ecstacy over their visit, but omitted everything that the King ought to have known. As they compared notes for these dispatches the walls of O’Cahan’s castle must have rocked with laughter. The augurs sometimes enjoyed themselves.

While this sport went forward the Corporation of London, which was about to levy a heavy assessment on its citizens to defray the cost of the Plantation, had its agents in the North to view the country. They met the Deputy at Limavady just as his letters were being sent off to James I. They discussed with him the terms of the proposed Charter, and he gave them much wise counsel as to the carriage of their adventure. The one point he forgot to mention was that he was an adverse claimant against them for the Bann and Lough Foyle—the chief ingredients in their bargain.

As they took their leave the agents warmly gave thanks, believing him to be a stout ally; and, on reaching London, they reported in favour of the Plantation. Five months later (28th January, 1610) the City accepted a grant of County Derry, with the Bann and Lough Foyle, and agreed to “plant” the North. No more solemn State contract is on record. Yet it was cankered from its inception by official duplicity.

When James I. learnt through Sir Randal MacDonnell of the transfer of the tidal Bann to Hamilton he did not realise—angry though he was—that the non-tidal river and Lough Neagh had also been granted away. He therefore promised to reacquire for the Londoners at his own expense what he supposed had been inadvertently parted with. Chichester never openly asserted ownership of the fisheries, for he hoped that a breakdown would occur in the negotiations with the City. These, indeed, were often on the verge of miscarriage; but, as time and argument went on, one obstacle after another was overcome. Finally the agreement of 1610 became the Charter of 1613.

Towards the end of 1610 the agents of the Londoners arrived to take possession of their new estate. Their coming forced the Deputy to change his tactics. He saw that the waters he had seized could not all be retained, and arranged with Hamilton to make a partial surrender of them and seek compensation for the “sacrifice.”

James I., unaware of the pretensions of any claimant to Lough Foyle and the Bann, had covenanted to give the Londoners an unclogged title. They naturally expected that all blots on it would be removed before they made a venture costing (in present moneys) £600,000. The Charter guaranteed that, if necessary, their rights would be confirmed by Acts of Parliament both in England and Ireland.

The “bag” of the Ulster fisheries by Sir Arthur and his partner then stood:—

As deserving owners they were ready to make sacrifices for prompt cash to further the royal policy, and yield up what had been contracted to the Londoners. The Deputy modestly kept in the background, and Hamilton represented him as Claims Agent.

With tradesmanlike particularity, the “Scot” sent in a bill to his Majesty through Chichester, who frigidly transmitted it to London as an impartial broker. It prettily set out that Hamilton, with seven mythical partners, disbursed £4,760 in buying up the estates of “sundry persons” in the Bann and Lough Foyle—over and above “the costs and charges expended as well in suits of law as otherwise for the clearing of sundry titles and claims.” This account was vouched by the Deputy as accurate, and his disinterested corroboration of its fairness was accepted by his royal master. Without further investigation £4,500 (or, in modern values, £45,000) was paid to Hamilton in June, 1610.

The King’s undertaking to defray the expense of clearing the title for the Londoners weighed heavily on his cramped resources. Shrinking at the outlay, he refused to provide more than £2,500, and left the balance, £2,000, to be paid by the other victims—the Corporation. Between regal meanness and viceregal greed, the Londoners were effectively squeezed.

The Lords of the Council had, in April, 1609, commanded a trial of Hamilton’s dispute with MacDonnell as to the “fourth” of the tidal Bann; and, although Chichester then showed no sign of compliance, he saw his advantage in reviving the quarrel, as soon as the money was received. He and Hamilton for him had taken “compensation” on making over to the Crown, fisheries which did not belong to them, and which, as regards the Bann, were owned either by the Church or by O’Neill, O’Cahan, and Sir Randal MacDonnell. O’Cahan was a captive, O’Neill in exile, and against neither fugitive nor hostage had any forfeiture been decreed. MacDonnell being a royal favourite could not handily be banished, attainted, or imprisoned, yet his “fourth,” which the Deputy had “put in sequestration pending a suit at law,” was airily disposed of as a chattel of “the Scot’s.” Then a ponderous scheme to “legally” divest Sir Randal of it was thought out. This grotesque conception is described in the staid pages of the earliest volume of law reports officially published to illustrate the wondrous workings of English justice in Ireland when the overthrow of the Brehon Code was decreed. The decision, like that which set aside as “barbarous” the native system of equity, fell from caitiffs robed as Judges, as inferior in worth and reputation as they were in learning, culture, and honesty to the Brehons they replaced.