TWO GREAT TRIALS.
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.