The acceptance by the Londoners of the parchments of Lord Donegall was an event of mournful significance for East Ulster. The concern of the public in it was immediate, for it created a new situation which affected everyone along the banks of Lough Neagh. When such powerful opponents confessed the validity of the Donegall grant, and accepted a lease thereunder, they became almost as much interested in maintaining it as the owner himself. Before their capitulation nobody had ventured to dispute the ancient custom by which the public fished in and trafficked over the Lough. The moment a great Corporation bent the knee to wrong, an unexpected impulse was given to the spirit of encroachment. Once they yielded, with what hope could poor men hold out?
The thought, therefore, struck the Donegall lessee who claimed Lough Neagh as being embraced in his demise that to turn a thousand free fishermen into toll-paying serfs would prove a profitable enterprise. To assert his “rights” he took proceedings to restrain them from catching salmon in the Lough. For five years this action dragged from Court to Court, and only ended in the House of Lords in 1878.
The plaintiff’s lease gave him dominion “within the known and accustomed limits of the fisheries as formerly in the tenure of Edward May.” What these limits were was not defined; and that they included Lough Neagh was disputed by the fishermen. To ascertain the extent of “the tenure of Edward May,” an examination of May’s lease was indispensable; but at the trial (which took place in Belfast in 1874) its production was refused. No explanation for withholding it was forthcoming, nor was the mystery which lay behind cleared up for 40 years. Nevertheless, on the strength of the Clotworthy grant and the Donegall Patent of 1660-61, Mr. Justice Lawson directed a verdict for the plaintiff—who, he afterwards ruled, had “as clear a documentary title as ever was submitted to a Court.”
The fishermen applied for a new trial, and the Court of Exchequer granted it, largely because of the failure to produce May’s lease. Against this decision the plaintiff appealed, but the Appellate Chamber was equally divided, so in 1878 he took the case to the House of Lords. There the “clear documentary title” produced small impression. For though the Patent from Charles II. granted Lough Neagh to Lord Donegall, the Law Lords agreed that the King’s power to make the grant must be proved in the same way as if he were a private individual.
Lord Chancellor Cairns laid down that it would be “a legitimate and necessary subject of inquiry how and from whom, and subject to what conditions or qualifications, this possession or proprietorship was obtained.” Its history, and especially how it became vested in the King, were “of very great importance,” and it was ruled that to make the Crown title perfect there must, generally speaking, be “office found.” The dispensation from the necessity for finding “office,” which the Patent contained, was treated as a nullity, while the withholding of May’s lease provoked adverse criticism. The plaintiff’s appeal was, therefore, unanimously dismissed, and after this defeat he troubled the fishermen no more.
The judgment of the House of Lords confirmed with remarkable precision a legal opinion obtained in 1636 by Sir John Coke, Secretary of State to Charles I., as to the title to a Wicklow property which he was about to acquire. This old “opinion” ran:—“The Letters Patent granted of those lands by King James to John Wakeman are clearly void, for that there was never any inquisition taken upon them whereby it could legally appear the King had title to those lands, and the King could not grant that which he had not.” The view of the law in 1636 was a pithy anticipation of that laid down in 1878.
Forty years passed before the right of the public to fish in Lough Neagh was again contested. The Donegall interest meanwhile had descended to Lord Shaftesbury, and in 1905 the descendant of the great British philanthropist was induced for large moneys to make a long lease of the eel-fishing in the Lough. The lessees undertook to assert his exclusive ownership therein, but Lord Shaftesbury’s confidence in his rights was so faint that he refused to give them the usual covenant for “good title.”
No original of any Patent could be found; and the lessees had to obtain copies (or rather extracts from such copies as served their case) from the “enrolments” preserved at the public expense in the Record Office. Researches to prepare for the litigation occupied two years, and these were mainly entrusted to an expert, or “archivist,” whose claim to scholarship was undoubted. He was secretary to the Ulster King-of-Arms in Dublin Castle, an M.A. and LL.D. of Trinity College, a barrister having “large experience in making searches,” and “thoroughly acquainted with the Record Office and searches there.” His task mainly was to provide material to enable the new challengers of public right to meet the difficulties raised by the House of Lords in 1878.
The peers had refused to regard the Patent of Charles II. as decisive, and held that the Courts must probe behind it to ascertain the root of royal ownership. Statutes might dispense the King from holding inquisition if the previous owners were monks or traitors, but the right of the Crown to make a gift of what could not prima facie lie within its prerogative was not to be assumed.
The archivist, therefore, had cast on him the burden of discovering how the Crown acquired the property, and of showing that inquisitions had been duly taken beforehand. His clients had further to establish that Charles II. possessed title as owner in 1660-1 to make a present of Lough Neagh and the Bann to private individuals, without regard to native user, or then existing rights. In 1907, when their researches were deemed complete, an action was launched to restrain public fishing in the Lough. Thanks to what is known as “legal reform,” a jury was no longer necessary, and the trial took the form of an application for an injunction before a Chancery judge (Mr. Justice Ross) in 1908.
Every Court is dependent on the materials placed before it for forming a judgment; and the archivist’s affidavits were those of an official whose attainments and position lent much weight to the case they presented. They were, therefore, unquestioningly accepted, but, unhappily, contained grave errors. Capital amongst them were:—
1st. That the earliest Patent of Lough Neagh was the grant to James Hamilton in 1606.
2nd. That before Hamilton’s Patent was issued, “office” had been found on behalf of the Crown for something like half Lough Neagh—and that the Commission which governed this “office” was “practically all illegible.”
3rd. That “the only Inquisitions, Patents, and Grants” relating to the Lough in the Record Office were those in the list he set out—swearing he was “satisfied there were no others dealing with the fisheries in Lough Neagh.”
These propositions, if true, went far to meet the judgment of the House of Lords in the former trial. Yet, extraordinary to relate, they were either wholly unfounded or very much astray. Only when too late did the facts leak out. The archivist’s list was vitally defective and incomplete, while the Commission was far from being “practically all illegible.” The earliest Patent was not that of 1606 to Hamilton, but those concocted by Chichester in 1603 and 1604, which as regards Lough Neagh and the Bann were warranted by no authority from James I. The Patents and King’s Letters of 1603-4 were not mentioned by the archivist, and they formed the key to the position as defined by the House of Lords.
When Chichester in 1604 appropriated the title of “Admiral of Lough Neagh” he snatched a life-estate in the fisheries without the King’s knowledge. Neither Lough Neagh nor the non-tidal Bann then was claimed by or “in charge” to the Crown. If the existence of these Patents had been disclosed, and if the King’s Letter of 1603 had not been withheld, the fact that the fishery grants originated without Royal approval would have been established.
The Letters throw a piercing searchlight on the problem raised by the House of Lords, for they prove that James I. nowhere mentions the fisheries. Their silence, therefore, reveals that the origin of the grant lay not with the Crown, but in fraud. This fact being shut out from judicial cognisance, the cardinal principle laid down by the House of Lords was frustrated—viz., that the existence of Royal title to make a grant must be lawfully deduced.
To treat the Patent of 1606 as the earliest of the series not merely got rid of the necessity for coping with the fatal parchments of 1603-4, but enabled the contention to prevail that Hamilton’s Patent was based on a valid inquisition. For at the “office” at Antrim on 12th July, 1605, a jury was alleged to have found that a pool in Lough Neagh was owned by the Crown. This verdict was arrived at on the inquisition held by Parsons, and at the trial in 1908 it assumed a fundamental importance. The terms of the Commission authorising it became equally vital, and as to these the archivist swore:—
“The Commission for holding the inquisition is attached to the original inquisition, and is practically all illegible. The inquisition deals with the eastern side of Lough Neagh only, and lands adjoining.”
Judge Ross, with true insight, saw the necessity of trying to ascertain what powers the Commission conferred, so that he might estimate what were the matters Parsons was inquiring into. He, therefore, sent for the original parchment. It was sadly defaced, and he, too, found it illegible. Since then, although portions remain undecipherable, enough has been transcribed to show what the Commission covered and authorised. This transcription reveals that it was issued without any reference to Lough Neagh or the Bann. Despite the fact that the decipherment is only partial, it shatters the case the plaintiff made.
The Commission is set forth in the Appendix, and, although several words are missing, enough is left to demonstrate that no inquisition founded on such a Commission could establish Crown title to Lough Neagh or the Bann (save as to a few monastic fishings). For what duties were the Commissioners appointed to discharge? They were ordered merely to report on the boundaries and extent of Sir Con O’Neill’s possessions (to prepare for their partition between Hamilton and Montgomery), and also what “concealed lands” should have come to the Crown in Antrim and Down by reason of any forfeiture or attainder to provide for Thomas Irelande’s £100 a year. Nothing more.
It was issued not by the King, but by Chichester on the 26th June, 1605, when he was thwarting Hamilton, and only a week after his bitter complaint to Cecil of the extent of the grants to “the Scot.” Then it would have been as repugnant to the Deputy’s feelings as to his interest to allow Hamilton get a rood of land or a fathom of water more than his two King’s Letters covered. Just a year before, Chichester had concocted a Patent annexing to himself for life the fisheries of Lough Neagh and the Bann; and it was hardly likely that his earliest act after becoming Deputy should be to nominate Commissioners to assist a stranger to oust the “Admiral of Lough Neagh” from his new acquisitions and destroy the basis of his aquatic title.
The Commission recites that it was sped by reason of the two King’s Letters presented by Hamilton, one on behalf of Thomas Irelande for £100 a year, and the other, on his own behalf, for the acquisition of Sir Con O’Neill’s estate in Claneboy and the Great Ardes. The “metes and bounds” of Sir Con’s territory were fixed by a Patent to his father from Queen Elizabeth of the 13th March, 1587, and never embraced Lough Neagh or the Bann.
The grant to Thomas Irelande could not have included them, for it was to be carved out of “concealed or forfeited” lands in Antrim and Down. There had been no previous confiscation of the fisheries. They had never vested in the Crown, and could not have been captured under the terms of Thomas Irelande’s “Letter,” even if Chichester had not already seized them for himself, or was in the mood to befriend an intruder.
In face of such facts can anyone imagine that the Inquisition was appointed to help Hamilton to waters which the Deputy had appropriated to himself? Had Judge Ross been afforded assistance in deciphering the Commission the true effect of the Inquisition would have been understood, and failure would have befallen any attempt to wrest that record to purposes repugnant to what it imported.
Once the objects of the Commission are made clear, not even the most partisan could suggest that it or the Inquisition control the title to the Bann or Lough Neagh, or provide “office” for their transmission to or ownership by the Crown.
Grim would have been the chuckling of the Deputy in 1605 had some seer foretold to him that in the twentieth century three Courts would decide that he signed the Antrim Commission to enable his rival and enemy to claim the fisheries which he had taken over for himself the year before!
In Claneboy there were attached to some of its fifteen religious houses near Lough Neagh riparian fishings. All monasteries had vested in the Crown since the Acts of Henry VIII., but these Acts had not previously been enforceable in Ulster, which was unconquered ground. So, after fixing the bounds of Sir Con’s estate, the Commissioners set down what the monks owned in order that their property might be the more readily placed at the disposal of James I. One of the “findings” inserted in the portion of the verdict relating to the monasteries declared that Queen Elizabeth was seized of various religious houses in Claneboy and of fishings in Lough Neagh “towards Claneboy,” of eel-weirs near Toome, and of another fishery on the Bann in Claneboy, and that these vested in the King.
Whether this “finding” was really pronounced need not be discussed. Parsons may have “spatch-cocked” it into the parchment which his scribes prepared after his return to Dublin when he learnt that the Deputy had joined hands with Hamilton in a conspiracy to utilise Thomas Irelande’s Letter to manufacture Patents and divert the property to himself.
That theory, however, is now immaterial; although Chichester elsewhere speaks of “false inquisitions returned of latter times.” Taking it to be the genuine “finding” of the local jury, what bearing could it have on the ownership of the largest lake and richest river in the kingdom? Its terms are set out in the Appendix.
At that date no “forfeiture or attainder” from which grants under the Thomas Irelande “Letter” were to spring had been suffered by anyone except the monks. It was under Irelande’s Letter they were given to Hamilton, and, leaving Lough Neagh out of account, a test can be applied to the bearing of the Commission and Inquisition by the “finding” as to the Bann. This contained no allegation that the river belonged to the Crown. In 1605-6 the owners of the Bann were as well known and as rightfully in possession as the owner of the Throne of England. If “half Lough Neagh” was found to be the King’s, why did not the Inquisition declare the Bann to be Crown property, instead of dealing merely with monastery fishings therein? Yet the whole non-tidal river was seized as completely as the Lough by Hamilton’s Patent seven months later.
The reason was that Chichester had made friends with Hamilton, and arranged to pervert the grant into a conduit-pipe by which the fisheries were passed to himself. Thereupon his “life-estate” blossomed gaudily into flower as fee-simple by the magic of a secret conveyance from “the Scot.” This was done without the payment of a penny to Hamilton—so cheap was “the price of Admiralty” in Chichester’s day.
The infected grants of 1603-4, therefore, are the real fount of title, and furnish the clues which the House of Lords in 1878 declared should be traced. No confiscations had taken place in Ulster in 1603-4 save those affecting monasteries. The province was in profound peace under the treaty with O’Neill. Chichester had not become Deputy, and the absence of royal authority or foreknowledge as to the gift of fishery in the Patents is plain from the King’s Letters. These were withheld at the trial as completely as the grants they were supposed to sanction, for the archivist was “satisfied” such trumpery was not to be met with in the Record Office—although he declared himself “thoroughly acquainted” with searches there.
Another omission from the archivist’s list is markworthy. This was the non-mention of the second master-Patent in the series—that by Chichester to his nephew, Bassett, of the 1st July, 1608. It alone provided a clue to the frauds. The list of documents, sworn to be complete, was dank with error—however unwitting. Yet no thumbing of musty vellum or conning over script in crabbed Latin was necessary to discover the missing grants. Bassett’s Patent is printed both in the State Papers and in the Calendar of the Record Office. Those of 1604 were published in 1846 in Mr. Erck’s “Repertory.”
The absence of such signal parchments from the archivist’s roster contrasts oddly with what he put forward to enhance the value of the grant of 1621—which flowed from Allen’s misconduct at Carrickfergus. This was the only Patent purporting to give Lough Neagh and the Bann direct to the “great Deputy.” It was the last in his lifetime. The affidavit deposed that it reserved to the Crown a rent of £920 a year (or in present moneys £9,000). So large a rent made for belief in its genuineness; and the Courts were struck by the figure. Yet, plain on the face of the enrolment, the true rent was shown to be £30 15s. 6d. (thirty pounds fifteen shillings and six pence). Amazement is palsied by such artistry.
A wry presentation was made of facts and Patents which it was essential to justice to have rightly understood. The high position of the archivist led to his affidavits being accepted trustingly, while the fishermen were ill-equipped for a struggle needing years of research.