Apart from the mis-statements of the archivist, the absence of information which has since become available told heavily for the disputed Patents.

Although the King’s Letter to Thomas Irelande only authorised a gift to the value of £100 a year, the Courts were not advised that it had been drawn upon by a previous grant. Before 1606, if not then sterile, its fecundity had been much diminished. Yet the Patent of 1606 gave away a million’s worth of property besides the fisheries. The improbability of James I.’s consenting to this devastation of Crown estate would naturally attract suspicion as to the genuineness of the grant, had attention been called to its sweeping nature. Even if the tapster at the “Half-Moon” had presented the Crown with £1,678 6s. 8d., the likelihood of royal sanction for a grossly excessive requital was slight. “New lamps for old” may be given away in Aladdin-land; but in the England of James I. it was inconceivable that his Majesty would consent to so reward such a payment. In any case it was incredible that he would allow his subordinates to part with a million on a warrant for £100, with leagues of river and square miles of lake flung in as a “tilla” or “hors d’œuvre.”

The Courts were unaware of the extent of the Patent; and though, in one sense, the rest of its contents did not touch the question of the fisheries, its magnitude bore strongly on the question of a genuine emanation of the Royal will. The same challenge to the realities arose under the hasty conveyance of the plunder by Hamilton to Chichester, for which no honest explanation could exist. Again, its stowage away and muffling up in the bogus Patent to Bassett spoke shrilly of illegality, but as to all this no warning hint came from any expert to guide his Majesty’s Judges.

Chichester’s freak surrender before Archbishop Jones, and Allen’s misconduct in fathering the Inquisition of 1621 in the teeth of his Derry verdict, may be said to have been concerned with the Bann alone. Still the grant of Lough Neagh was so intimately linked with the river that any tribunal would have felt itself assisted by a full disclosure of facts where questions of good faith and probabilities had to be determined. An artificial darkness as to the origin and bearing of the Patents prevailed, and in such murkiness the law pronounced on their authenticity. Shade shaded shadiness.

This obscurity tended indirectly to the acceptance of another forlorn document concerning the modern history of the fisheries. The lease to May, which the House of Lords in 1878 was denied sight of, was at last put in evidence, and its value had to be appraised. When produced, the woeful spectacle it presented explained the reluctance to allow it to be examined at the trial in 1874.

Erasures, in which battalions of interlineations lay entrenched, pitted the parchment; and its plight spoke plainly of felonious mutilation. Who had been at work to change it, and to what purpose?

The author of the forgery was long dead, but the extent and nature of his operations could easily be traced. No sleuth hound was needed to follow the track. The original lease had been registered in the Dublin Registry of Deeds in 1805, and a “Memorial” of its contents, signed by Lord Donegall, was lodged there. Such Memorials must (by Statute) contain the description of premises in the exact words of the deed presented for registration, and this one had been framed on Lord Donegall’s behalf by his solicitor and was signed by his lordship with his own hand.

Registry officials only receive and file Memorials when, by a comparison with the originals, they are satisfied that the law has been complied with. When, therefore, the so-called “lease to May” was produced in 1908 its challengers straightway resorted to and compared it with Lord Donegall’s Memorial. A glance at the “Memorial” established that there had been foul play as to the lease. It showed that what had been registered in 1805 was a lease of the Bann only and of a salmon fishery therein, while the so-called “original” granted “the salmon, trout, and scale fisheries of Lough Neagh and the River Bann.” This laidly “fakement” explained the secret of the non-production of the lease in 1874-8. A forgery had been committed, and those who then had its custody felt too conscience-stricken to attempt to make it evidence.

Other differences also exposed its falsity. One of the most extraordinary was the contrast between the “Lease” and the “Memorial” as to the mode of witnessing Lord Donegall’s signature. Two witnesses attested the “lease,” whereas the “Memorial” showed there had been three to the original. The same three persons attested Lord Donegall’s signature to the “Memorial” itself. Had the case been reversed, and if the names of three witnesses figured on the “lease” while only two appeared on the “Memorial,” the absence of a name from the latter might be explained by carelessness or mischance. No such excuse could account for the disappearance of a signature from an “original” and its presence in a secondary document. Only one conclusion from such a variance seemed possible, yet the plaintiffs insisted that the “Memorial” was unreliable, and the piebald parchment genuine.

No Memorial had ever before been discredited in the centuries since registration was established. The title to millions’ worth of property, not only in Ireland but in wealthy Middlesex and vast Yorkshire, depends on their trustworthiness. The manner of their preparation and lodgment, as a system of verification of the contents of deeds, is one prescribed by Statute to prevent fraud, or to detect it if committed. Lord Donegall’s “Memorial” branded the so-called “original” as a counterfeit. That was the function which the law assigned to it, and it fulfilled its duty. Still the imputation of forgery was too rude and uncourtly for the 20th century. A theory of inadvertence and mistake was preferred. “Forgery” is a hard saying, and any suggestion to explain it away attracts an honest mind. So the “Memorial” was held to be inconclusive, and the counterfeit genuine, by Mr. Justice Ross.

Fortunately for the repute of registration, research brought afterwards to light collateral proof of its reliability. On the day Lord Donegall executed the lease in dispute he also gave May a second lease relating to a quarry. Both were registered on the same day and by the same officials in Dublin. The “Memorial” of the quarry lease showed there were three witnesses to Lord Donegall’s signature, and that these were the same three persons who attested the fishery lease and its “Memorial.” Thus the witnessing trio were certified to be the same in the case of two leases and two “Memorials”—whereas the document relied on by the plaintiffs bore the signatures of only two witnesses. An independent and collateral registration, therefore, corroborated the “Memorial” of the fishery lease in a vital respect. To cast discredit on it in order to bolster up the decrepit Patents of the Donegalls was an ill tribute to the system on which so much property rests.

The judgment of the Court, however, turned mainly on the “additional records” prior to the reign of Charles II. which have already been analysed. Rightly regarded, every one of them multiplied discredit on the Donegall title, but proofs had not then accumulated that official frauds were palmed off as Royal grants, and instruments of crime as genuine acts of kingly power. It is, therefore, hardly to be wondered at that parchments of apparently reputable origin should sway a Court guided by the reticences of an archivist—the main of whose history and compilations met with no contradiction. So judgment went against the fishermen and an end was decreed to public right in Lough Neagh A.D. 1908.

An appeal was taken, and was heard in the same year. The chief deliverance of the Appellate Court was made by Lord Justice Holmes, who, too, had been captured by the “additional records.” He said:—“Having some experience of Ulster titles, I have been surprised to find that of King Charles II. to the fisheries of Lough Neagh and the Bann at the date of the Patent of 1661 so satisfactorily supported by earlier instruments.” If they be “satisfactory,” then what must other “Ulster titles” be like?

Lord Justice Fitzgibbon remarked:—“I cannot believe that all the documents of title in the case rest upon usurpation or pretence.”

This Court also decided against the possibility of public rights of fishing in Irish inland waters, because no such rights exist in England. The Irish Fishery Act of 1842, however, recognises that “a general public right of fishing” may exist in fresh water, but its provisions went for naught, as Lord Chancellor Walker explained that this was a “misapprehension as to the law” on the part of Parliament. In other words, mere enactments may be ignored. The history of the Statute thus slighted shows that, instead of its words being a “misapprehension as to the law,” they were the considered language of the strongest and most representative Select Committee that ever dealt with an Irish measure.

The Bill was discussed by a Committee of 27 members, including lawyers like Daniel O’Connell and Lalor Sheil, as well as the Solicitor-General for Ireland and the Chief Secretary. The landed gentry manned the panel, and the ancestors of peers like Lord Leitrim, Lord Newry, Lord Downshire, Lord Stuart de Decies, Lord Fermoy, and Lord Dunraven, served upon it, with several members from Ulster counties, and one from the City of London.

The Bill repealed all previous Fishery Acts, and, as introduced by the Government, contained no recognition of a public right of fishing, because the English Acts contain none. To this O’Connell’s Committee demurred, and a clause was unanimously inserted overriding the English principle and admitting the existence of public right in Ireland. By decisive words solemnly agreed to, a vital difference was established in the fishery law of the two countries. Confronted by this fact, the Lord Chancellor of a Home Rule Ministry in 1908 overcame its force by laying down that “There was a misapprehension as to the law” in the minds of the law-makers who framed the enactment. Apparently, therefore, when the Imperial Parliament is persuaded to legislate for special Irish conditions, and declines to saddle Ireland with English usages, it “misapprehends the law.”