In 1910 the fishermen appealed to the House of Lords. After a week’s debate that tribunal stood equally divided, and a second hearing was ordered. The arguments were renewed before seven peers, but the misdeeds of the Hamiltons, Chichesters, Clotworthys, and Donegalls were then unknown. Still their Patents so little impressed Lord Chancellor Loreburn, Lord Shaw, and Lord Robson that they refused to allow them to prevail against ancient user.

In England and Scotland, neither Thames nor Tweed, Lake Windermere nor Loch Lomond, is an appanage of royalty. The frontagers who own the banks enjoy therewith the “bed and soil,” which is nowhere a “flower of the Crown.” To enforce a contrary rule in Ireland strong reasons should appear. Nevertheless, the Patents, in the light presented by the archivist, satisfied Lords Halsbury, Macnaghten, and Dunedin. They not unnaturally assumed that such grants would not have been issued without the King’s sanction, nor unless the Crown owned everything they gave away.

How James I. acquired the fisheries they could not explain, and Lord Dunedin admitted this frankly:—“It is impossible to point to any forfeiture which identified the Lough. Yet it was obviously very probable that it was included in the various territories forfeited to the Crown in the time of the O’Neills.”

Four dates slay this speculation—as dates often ambush the adventurous. Chichester gave himself the grant of the fisheries for life with the title of Admiral on the 9th May, 1604. The Patent to Hamilton of Lough Neagh and the Bann was of 14th February, 1606. Hugh O’Neill did not go into exile until the 14th September, 1607. The escheat of his property was not declared until 1615, and for three centuries afterwards no one ever conjectured that his estate included Lough Neagh. Its boundaries in the Earl’s Patent from James I. and in that of his grandfather from Henry VIII. prove that it did not do so. Con O’Neill made his surrender to Henry VIII., and took his regrant for “Tyrone” in 1542. Con MacNeale Oge O’Neill made his surrender for Castlereagh (or Claneboy) to Queen Elizabeth in 1587, and took a regrant. In the Patents given in exchange, the Crown nowhere pretends to convey or deal with Lough Neagh. Its shores bounded the O’Neill patrimonies, and no other Chiefs ruled beside them. Consequently, no “forfeitures” from any O’Neill can have vested its waters in the Crown. Nor can anyone except the O’Neills be suggested as owners from whom the Crown could have derived. The Act of Elizabeth attainting Shane O’Neill in 1569 does not help the argument.

The territory of the Claneboy O’Neills was granted to Hamilton three months before he received the Patent of Lough Neagh, which was conveyed by the alchemy of the Thomas Irelande “Letter,” and not by that authorising the stripping of Sir Con O’Neill. This alone refutes the “forfeiture” theory.

Lord Macnaghten rested himself on a different basis. Misled by the archivist’s failure to mention the Patent under which Chichester first took over the fisheries, and without knowledge of the effect of the Commission under which the Antrim inquisition was authorised, he ventured the opinion that proof was afforded of Royal ownership by that inquisition.

Quoth he:—“There is an inquisition which finds that Queen Elizabeth was entitled to one-half of Lough Neagh. ‘How can you claim the whole’? it was said, ‘when her Majesty did not pretend to more than one-half’? Lord Justice Fitzgibbon cut the knot by saying that ‘medietas’ does not mean ‘one-half.’ There I think his lordship is wrong, but it is the only mistake—if it be a mistake—that the Lord Justice has made. It seems to me that the difficulty may be solved by a glance at any map which shows the boundaries of the counties bordering on Lough Neagh. The inquisition was an Antrim inquisition. The jurors could only deal with her Majesty’s possessions in Antrim, and the fact is that half of Lough Neagh, and no more, does lie within County Antrim. The inquisition itself refers to an inquisition taken in County Down only eight days before. Probably there were other inquisitions dealing with the rest of Lough Neagh.”

This was a hopelessly mistaken deliverance. The Inquisition was an “Antrim Inquisition,” but the Commission for it extended to Down as well. It first sat at Ardwhin (recté Ardquin), where no reference to the fisheries was made. Moreover, the Antrim Inquisition does not find that “Queen Elizabeth was entitled to one-half of Lough Neagh.” The translation by the “archivist” was:—

“All that moiety of the pool of Lough Neagh which lies towards the east parcel of Claneboy aforesaid in the county aforesaid.”

This was merely a finding as to the half of a “pool” lying in the district to which the jurors were confined, and not one for half Lough Neagh.

The Record Office translation published years before the litigation, the work of a brilliant scholar, does not even employ the word “one-half.” Whatever be the meaning of “medietas,” it is in this “return” confined to something in Claneboy. Dr. Smith’s Latin dictionary gives for its equivalent “the mean,” and states it is “a word doubtfully coined by Cicero from the Greek.”

In enlarging the scope of the Antrim Inquisition beyond Claneboy Lord Macnaghten displayed much intrepidity. His conjecture that “Probably there were other inquisitions dealing with the rest of the lough” is still more rash. No trace of them exists, and none ever existed. The confiscators took the utmost care to preserve all writings which could warrant their possession. Chichester ordered the Antrim inquisition, not to help Hamilton, but to block him. They were then rivals, if not enemies. When they became allies soon afterwards no Crown title existed to justify Hamilton’s Patent for Lough Neagh and the Bann. Every stretch of the river was in legitimate private ownership under English law, save the monastery reaches. The Lough lay in no man’s private wallet—as was then notorious.

Never before was “fancy” History invented to decide the fate of real property in the House of Lords.

Preferable, indeed, is the title invented by the ex-monk, Miler Magrath, who, when converted into a Protestant Archbishop of Cashel, was got to visit London in Elizabeth’s reign, and in a “book set down in writing by her Majesty’s express commandment” declared in 1592:—“It is holden for an opinion in Ireland that her Majesty hath special right and interest in all principal rivers, loughs, lakes and great waters, in all islands and commodities contained upon them.”

Miler, however, added a doubt:—“If this opinion be true ... I am not sure of it.” From that day to the present no one else has been able to invent a better title for the Crown to grant away Lough Neagh.

Lord Macnaghten was deeply impressed by the litigation in the Irish House of Lords. He quoted Lord Clare’s account of his going to Armagh when Attorney-General to dispute Lord Donegall’s title (omitting his error as to the Act of Settlement) and declared:—

“We know that the right or claim of the Donegall family to the several fishery of the whole of Lough Neagh had been asserted openly, and had been the subject of a litigation which lasted for thirty years.... Such a judgment ... is entitled to the utmost weight, and better evidence of possession than any old lease can be.”

Thus the Donegalls were depicted as boldly flinging their Patent in the face of the world, and daring all comers to deny its validity in 1788. The truth was that they challenged an English Corporation, disabled from asserting any right in Lough Neagh, as to its mode of fishing in the Bann, and in doing so took care to avoid raising any question of title which would bring their Patent into discredit.

For an Ulsterman, Lord Macnaghten showed slight acquaintance with the history of his Province. When he came to deal with May’s lease he said it described the Bann “as being in the County of Tyrone as well as in Antrim and Londonderry; and I suppose the Bann was never in Tyrone since the days of the Flood.” Every Ulster peasant knows that until the Planters carved up O’Neill’s dominions the Bann always ran through “Tyrone.” The county now called “Londonderry” formed part of “Tyrone,” and was only shorn from it in Stuart times after Derry was allotted to the Londoners. Moreover, the Londoners’ Charter, lodged in evidence before Lord Macnaghten, described the Bann in the King’s name as being in “Tyrone,” in the same way as did May’s lease. His geographical scorn reveals the extent of his knowledge of the period he was discussing when trying to overturn the decision of his predecessors—Lords Cairns, Hatherley, Blackburne, and Watson—in 1878.

The “old lease,” the importance of which Lord Macnaghten diminished, was denounced by Lord Shaw as a forgery. Lord Robson agreed with him in this. Its history lay within testable times, whereas little was known of the Patents beyond what appeared on their face. Lord Macnaghten and Lord Dunedin, while acknowledging that erasures disfigured “that unhappy document” (as the former dubbed it), and that interlineations had been inserted, treated these as innocent. The tell-tale Memorial signed by Lord Donegall, and the contradictions and variances between it and the lease, were passed over in silence. It might have been expected that eminent lawyers would regard it as more important to uphold the title to property depending on registration in Ireland, Middlesex, and Yorkshire than to throw doubt on its processes in order to buttress questionable Patents.

Unless it should become part of public policy to discredit the registration of title, both in England and Ireland, it seems probable that the attitude of Lord Shaw and Lord Robson in viewing May’s lease as a forgery will ultimately be regarded as the safer conclusion by property-holders.

So far three Peers agreed with the Irish Courts and three declared for the fishermen. The seventh member of the tribunal, Lord Ashbourne, steered a middle course. He avoided discussing the forged lease, and pronounced against restraining public right in Lough Neagh as a whole, but wished to confine the injunction to the northern part. This forced the Lord Chancellor to say that the sole question before the House was whether the entire lough, or none of it, vested in private hands.

Lord Ashbourne was reminded that he must declare himself “content” or “non-content” when that question was put; and, so entreated, he reluctantly sided with the Plaintiffs. He added a plea that costs should not be awarded against the fishermen; but the other six Peers, thitherto equally divided, were united in the determination that his vote must carry its logical consequences. Accordingly, by one quavering voice, the appeal stood dismissed, and the felonies of three centuries were held law-worthy.

The perfume of legality now sweetens the memory of the deeds of John Wakeman, Thomas Irelande, James Hamilton, Auditor Ware, Arthur Bassett, Arthur Chichester, Henry Cromwell, John Clotworthy, and Lord Donegall. Ermined innocence has arisen to bless their works. Spirits of grace garland their graves with wreaths of equity. In other words, the children of the clansmen, whose rights Brehon justice guarded for a thousand years, have fallen among thieves.

When another national possession, the Curragh of Kildare, was subtracted from the people, the excuse of State policy was advanced, and Statute was obtained. Guile and wile sufficed to take in Lough Neagh. Public playgrounds are rare. Hence doth wisdom (lacking other present resource) lay up the ancient counsel:—

“Let these things be written for another generation.”