THE PLANTERS’ QUARREL.
In 1755 Lord Massereene’s lease of 1660 expired, and in 1769 the
Lord Donegall of that day began to take thought of his “reversion”
to the fisheries. The claim of the Chichesters had slept for over
a century, and was unknown to the people. Its assertion was beset
with difficulties, for the Irish Parliament and Executive would have
set themselves against any attempt by such an individual to control
Lough Neagh. Several Statutes treated it as both a public highway and
a public fishery. But his plans to capture it were skilfully laid.
The Londoners had, between 1744 and 1760, erected four traps in the
Bann at the Leap of Coleraine near the sea for the capture of salmon.
These necessarily diminished the catch further up, and Lord Donegall,
without impugning their Charter, objected that their mode of fishing
injured his rights in a corner of Lough Neagh. He laid his complaint
of damage in a pool on the Armagh shore, forty miles from the traps,
instead of in the Bann, and singled out as his quarry the lessee of
the unpopular “Irish Society” to serve as defendant. In this way his
grant of 1661 was for the first time brought to the notice of the
public.
In 1781 and 1784 he launched actions, which miscarried, for trespass
to the supposed fishing in Co. Armagh by the erection of the traps.
In 1787 he made a fresh onset, and the third trial began in 1788 at
Armagh, 33 years after the expiration of Lord Massereene’s lease. In
framing his suit he astutely avoided anything which would raise a
question as to the validity of his Patent. Hence he made no claim for
damage to the fishery of the Bann, where the mischief from the traps
would have been sorest, lest, as the Londoners’ Charter included the
entire river, a battle as to title should begin. He rigidly confined
his complaint within Lough Neagh, to which their Charter did not
apply. At the trial, therefore, the only issue was: Did the erection
of the traps injure the supposed fishery in the pool of Lough Neagh
to which the Londoners could make no claim? If he had charged damages
to the Bann he could have had a trial in Antrim, which is bounded by
the river. There, a friendly Sheriff would have composed a jury more
to his liking; but he laid the venue in Armagh, where he was without
local influence, rather than force a conflict with the Londoners
as to his pretensions to the Bann. The motive which inspired these
tactics and its cunning is evident.
At the trial he did not attempt to prove that any part of Lough
Neagh was injured. Still, as the traps must have hurt all the upper
waters, the jury decided that, if they were ultimately held to be
unlawful, the damages should be £45. This finding was elaborated into
a “special verdict” drawn up between the opposing counsel, which set
out their version of each litigant’s title. The question of the legal
right to erect the traps was left over for argument in the Appellate
Court in Dublin. The only point to be decided was: Whether as a
possible hindrance to fish ascending to Lough Neagh the traps could
be maintained.
The Londoners’ counsel at this stage was the Attorney-General (John
Fitzgibbon), who allowed the “special verdict” to be so framed that
their Charter and Lord Donegall’s Patent were mutually accepted as
unimpeachable.
Soon afterwards Fitzgibbon became Lord Chancellor and Earl of Clare.
When the appeal came on he presided at the hearing in 1789, and
struggled hard to prevent the traps being condemned. The majority
of the judges, however, decided that they were illegal, and the
Londoners after some time raised a further appeal by means of a
Writ of Error to the Irish House of Lords in 1795. There again the
Chancellor figured as the leading member of the Court and strove to
help his old clients.
The Dublin Parliament in 1782 had declared its independence of
English jurisdiction, and the air of its Court in College Green was
charged with Irish spirit. When the Writ of Error had been argued
for a day, one of the legal peers, Lord Pery, showed his mettle by
suggesting that the Londoners’ Charter was defective for lack of the
Irish Great Seal. This was a deadly thrust; but he then aimed a home
blow at their opponent. He suggested that, although Charles II. made
the grant to Lord Donegall earlier than the Charter, the Londoners
retained priority under their original Charter from James I., because
the annulment of the latter took place under an English decree of
Charles I., which did not extend to Ireland. Therefore, he contended,
they still possessed their ancient rights intact. These objections
raised the slumbering wraith of international conflict with Great
Britain at an embarrassing moment. They bristled with delicate
political problems, and the Lord Chancellor cleverly foiled them.
Dealing first with the Donegall Patent, he narrated that he had acted
as counsel for the Londoners at the trial at Armagh in 1788, and had
gone there “for the very purpose of showing that Lord Donegall had
no title—but a clause in the Act of Settlement put that out of the
case.” Turning to the Charter, he declared that the Londoners held
by possession for over a century; and, although the Great Seal of
Ireland might originally have been necessary to it, a good possessory
title had been acquired by the lapse of years. These statements
appeared conclusive.
Yet the Act of Settlement had no operation to legalise a Patent such
as Lord Donegall’s. The Chancellor was entirely mistaken on this
point. As to the Charter, the lack of the Great Seal was felt to be
so serious that a Bill was rushed through Parliament a few weeks
later to mend the flaw. Both of Lord Pery’s objections, therefore,
struck at the marrow of the case; and the Chancellor’s way of
meeting them showed that he was sapping for a channel of escape from
the political perplexities they presented. Perhaps, too, he sought to
screen his blunder at Armagh in failing to raise the question of Lord
Donegall’s title, for the Act of Settlement offered no obstacle to
his doing so. It merely legalized Patents of property vested in the
Crown, which had been confiscated because of the Rebellion of 1641.
The “special verdict” indicated (wrongly) that it was by virtue of a
confiscation then made that the Crown obtained the fisheries, whereas
such title as it possessed (if any) was enjoyed previously.
Equally erroneously the “special verdict” alleged that the fisheries
were sequestered by Cromwell. They were given away by Cromwell,
but had not been seized by him. Only Patents to property seized in
consequence of the Rebellion were “ratified and confirmed” by the Act
of Settlement, and Lord Donegall’s grant was not in that category.
The fisheries were given up by his ancestor a year before 1641,
and were, therefore, not “sequestered” owing to the Rebellion. The
Lord Chancellor, unaware of this, allowed the special verdict to be
misframed at Armagh, and then misapplied the law on the Woolsack. His
pronouncement that the Act of Settlement “confirmed” the Donegall
grant, coming from one who had been retained as counsel to oppose it,
silenced Lord Pery.
These high clashes between the Law Lords almost caused the fate of
the “traps” to be lost sight of, and probably helped to bring about
the rejection of the Londoners’ appeal. The House held unanimously
in favour of Lord Donegall, whose victory was the sweeter because
it had been won without provoking any challenge to the validity of
his Patent. His well-judged tactics won for it the sanctity of a
legal baptism. Soon afterwards he applied in Chancery for an order
to prostrate the traps. The Londoners fought on; and, under the
intricate procedure of that epoch, brought the matter from Court to
Court.
In 1801, after the Dublin Legislature had been abolished by the Act
of Union, a fresh appeal reached the Lord Chancellor. He delightedly
entertained it, and for the third time heard a case in which he
had been counsel for the appellants. The Irish House of Lords was
no more, and, sitting alone, he learnedly decided in favour of the
Londoners. Lord Donegall was not only beaten, but condemned in costs,
and the traps were saved. Safe though they were, his Patent was still
safer, for its validity had never once been called in question in any
Court, and the legal struggle was confined to the right to erect the
traps in a part of the river to which he laid no claim.
Thus ended a thirty years’ litigation. The plaintiff never stirred
more. The Londoners, grateful for their escape and for the Act which
dispensed with the Great Seal to their Charter, were content to
enjoy the tidal fishings with the traps, unmolested. Accepting the
view of their trusty Lord Chancellor, that Lord Donegall’s Patent
had received confirmation by the Act of Settlement, they silently
abandoned their rights in the non-tidal Bann.
Taking courage at this, Lord Donegall began to make lettings of the
river. He first gave his brother-in-law (and agent), the Reverend
Edward May, a lease of the Bann in 1803 for 61 years at £50 a year of
the salmon “within the known and accustomed limits of the fishery.”
In 1805 this lease was registered publicly, and as no one challenged
the letting, the Reverend Edward May assigned it in 1811 for £500
to Sir George Hill, Recorder of Derry, who was also a lessee of the
Londoners’ fishery in the tideway. Other persons then consented to
pay rent for the river to Lord Donegall, in the belief that the
litigation of 1769-1788-1795-1801 had made the Bann his. In 1827 Lord
O’Neill accepted from him a lease of the eel-fisheries of the river
at £369 a year, paying the enormous fine of £7,384.
Thus in the first half of the nineteenth century the Donegall
interest formidably entrenched itself behind the Patent. There was,
however, no attempt to exclude the public from Lough Neagh until
1873, and it was then only made as a consequence of the litigation
as to the Bann. For in 1868 the Londoners woke up to the fact that
they were owners of “the entire Bann.” After centuries of torpor they
claimed it by ejectment, as if nothing had happened since the reign
of James I. While, however, they lay asleep, successive Marquises of
Donegall had made themselves masters of the stream. The ejectment
was met by numberless defences; and, after some legal sparring, they
lost heart. In 1872 the suit ended in a settlement, whereby the
“Irish Society” bought up a lease of the non-tidal salmon fishery for
£2,250, and covenanted to pay a rent of £80 a year to Lord Donegall.
The valuable eel-fishery of the river they left in his hands.
By this compromise they acknowledged his ownership of their own
waters, and the long struggle between the City which financed the
Plantation and its adversaries fizzled out in a dismal attornment.
A title, guaranteed to them by the charters and promises of three
Kings and the parchments of Oliver Cromwell, was abandoned for ever.
Holding genuine and undoubted grants, they did homage to the suspect
scrivenery of the freebooters who for three centuries had plotted to
despoil them. What could explain such a nerveless breakdown? No doubt
Fitzgibbon’s bemusement as to the Act of Settlement misled them,
but why was there no one to unravel the mystery of iniquity lurking
behind the deeds of 1661, 1656, 1621, 1611, 1608, 1606, or 1603-4?
In 1872, when they capitulated, the work of the Irish and English
Record Offices had shed much light on the grants and confiscations of
the Stuart and Cromwellian periods. The documents in the Rolls and
Exchequer Offices had been translated, calendared, and indexed. State
papers, inquisitions, and MSS. from a number of libraries had been
published. It was with all these sources of information thrown open
that the Irish Society, having begun their assertion of title, tamely
acknowledged the overlordship of their ancient enemy.
When the richest Corporation in the world, and the Imperial city of
the Empire, could be baffled in such wise, what hope had the natives
in days of yore of retaining their property against the greed of
those who controlled the machinery of Irish government?