The great fraud of Ulster

by T. M. Healy

FOOTNOTES:

[1] The Spanish Ambassador to London.

CHAPTER XIX.
STRAFFORD, PATENT-BREAKER.

When Lord Falkland left Ireland, the question of the validity of the Wakeman grants was re-opened under the rule of the Lords Justices.

In 1630 a “case” was submitted to Sir Robert Oglethorpe, one of the Barons of the Exchequer, who in 1623 had denounced their origin. Oglethorpe retired in 1624 from his position in Dublin as judge (probably owing to his uncomfortable uprightness in Patent matters); and resumed his practice at the Bar in London. The “case” he received was incomplete, and its framer is unknown, but though omitting much, it is startling enough. It sets out that five Patents had been issued on foot of Wakeman’s Letter for £100, “in value surmounting £4,000 per annum,” including one for the fishery of the Bann. It foreshadowed that further grants were in contemplation, and asked the ex-Judge for his opinion as a lawyer if the King could have all of them declared void by legal process?

Oglethorpe’s reply shows that he and the other Exchequer Barons ruled against the Wakeman Patents in 1623, and that this decision “was certified to the Lord Deputy (Falkland) upon referment from his late Majesty.” He again branded them with “fraud” and “deceit,” and advised that this taint would “extend to many Letters Patent in Ireland”; for, quoth he, “this is a great and general case.”

When this “opinion” was delivered Lord Cork, prince of Patent-mongers, wielded the Sword of State with Chancellor Loftus, and of course no action was taken. In 1632 Charles I. made up his mind to replace both Lords Justices; and in the following year there arrived in Dublin a Viceroy less dishonest than Ireland had known for some time. This was Wentworth, Lord Strafford. Whatever his faults, the new Lord Lieutenant hunted down those who had preyed on the country since Elizabeth’s reign, and in the eight years he served as Viceroy he earned the hatred of every confiscator. Those whose avarice he checked or penalised, including Patentees like the Earl of Cork and Sir John Clotworthy, were Strafford’s chief enemies. When he perished on the scaffold, their self-interested testimony spoke his doom. Many of his processes were, of course, expedients to provide revenue for the King in order to dispense with the summoning of Parliament. Others were well-grounded investigations to recover property of which the Crown had been cozened.

Strafford had to deal, not only with lawless Patents, but with Patents which, if lawful, conveyed, in acreage and value, lands largely in excess of what the King had authorised. He was not three months in Dublin before he obtained an insight into the ways of his predecessors. On the 23rd October, 1633, he reported that, “in all the Plantations, the Crown had sustained shameful injury, by passing in truth ten times the quantities of lands expressed in their Patents, and reserving throughout base tenures in soccage.” As to those who “held the Sword” before him, he remarked:—

“The late Lord Chichester had lands to the value of £10,000 in one gift; and Lord Falkland £10,000 in money at once.” His Chaplain (afterwards Bishop) Bramhall, wrote to Archbishop Laud five years later:—“I think I should soon be able to show that the Crown has been defrauded of many appropriations, for here it hath been usual ... upon a Letter for £20 to pass £30 or £40 ... to pass that for nothing, in time of peace, which was found to have been worth little or nothing in time of war; and to take up appropriations as gentlemen do waifs in England.” These comments reveal only a surface acquaintance with the misdeeds practised against the Crown by its trusted servants.

In the year after Strafford’s arrival he provided a remedy for some of the evils which corroded justice by causing Acts to be passed extending the “Statute of Uses” to Ireland, and clothing the Commissioners for Defective Titles with far-reaching powers. The first Act made secret conveyances impossible; and the second authorised the Commissioners to issue Patents which should stand good against the Crown, even if wrongfully obtained or corruptly enlarged, provided fines were paid. The Government was in debt; and, in order to raise cash, many grants, new and old, were assailed. Fines were then exacted as the price of indefeasible Patents.

In 1635, when the Star Chamber at Westminster declared the Charter of the London Corporation forfeit, Strafford’s eye detected an unforeseen consequence. The Londoners, being compelled to surrender the Bann and the rest of their Irish estates, were left burdened with a rent of £100 a year to the Chichesters for Lough Neagh under the lease of 1622. Deprived of the river, Lough Neagh became useless to them; and they probably petitioned the Crown for relief. Strafford then caused the Chichester Patents to be scrutinised, and the misdeeds of his predecessor came to light. Yet he dealt not ungently with the dead peer’s heirs. Instead of re-seizing the whole of their ill-gotten possessions, he confined himself to demanding a surrender of Lough Neagh. At the outset the Chichesters resisted, but the stream of authority against the validity of their grants soon swelled to a torrent. Strafford knew that constant protests under two reigns had been lodged against them.

Their base origin in 1603-4, Sir James Balfour’s inquiry of 1618, Allen’s repugnant findings at Derry and Carrickfergus in 1621, the ruling of the Exchequer Barons in 1623, the “discovery” of Sir William Power in 1628, and the order of Charles I. on Colonel Forbes’s petition in the same year, covered them with discredit. In 1630 the “opinion” of ex-Baron Oglethorpe openly alleged “fraud”; and Strafford, backed by these accumulated condemnations, took action.

He first caused an inquisition to be held at Wicklow in 1636, to impeach one of the Wakeman grants. The result was that lands confiscated from the O’Tooles, which had been patented to Hamilton, were declared re-vested in the Crown. Grants springing from Thomas Irelande’s Letter (on which the title to Lough Neagh rested) evoked no greater respect. After the death of Lord Chichester, his heir did not even rely on the Patents of the fishery. For in 1625 Edward Lord Chichester (the second in succession) besought Charles I. to appoint his son Arthur (afterwords Lord Donegall) “Admiral and Commander of Lough Neagh” at a salary of £30 6s. 8d., and to give him a “licence” to fish in the Lough and the Bann. What owner would petition the Crown for a “licence” to enjoy his own fishery?

Such a request amounted to an admission that the Patents of Lough Neagh to Hamilton in 1606, to Bassett in 1608, and to Lord Chichester in 1621 were waste paper, and that the hope of the family lay in reviving the “life-estate” annexed to the quasi-military “command” created by the Patent of 1604. It was at least possible for them to argue that some germ of legality attached to that Patent, yet Charles I. never granted the request.

Strafford was unaware of any claim by the family to the Bann; but was resolute to enforce the surrender of Lough Neagh. The fact that since 1622 the Londoners had paid £100 per annum for it to the Chichesters, and would have continued to do so if the Star Chamber had not deprived them of the Bann, had to be taken into account. He made up for the loss by offering an attractive compensation. He proposed to allow Edward Lord Chichester to take out a fresh Patent for all his uncle’s acquisitions minus Lough Neagh—and this under the new Act would be valid for all time against the Crown. The family would thereby be forever quieted in the enjoyment of rich territories which had been stolen from the natives thirty years earlier. Negotiations on this basis were conducted through the Commissioners for Defective Titles, and lasted some years.

The records of that body were housed near Dublin Castle, and perished by fire in 1711; but from the “memorials” enrolled in Chancery the main story can be traced.

A King’s Letter of the 24th September, 1638, was obtained by the Commissioners to authorise them to accept the surrender. No mention was made of the Bann, for no one regarded it as Chichester’s. The King’s Letter cast doubt even on his right to Lough Neagh, and sarcastically narrates that his Majesty had been informed that the fishing and soil thereof were “granted away” by Letters Patent to the late Lord Chichester, but were found “so commodious for upholding the fishing of the Bann that the London Corporation were necessitated to farm the same at £100 a year—which fishing of the Bann is now come to our hands.” Short work was thus made of the 1621 Patent and of Allen’s “finding” at Carrickfergus. The Letter further recited that Viscount Chichester had compounded for a surrender of Lough Neagh in consideration of £40 a year; and that this sum could be deducted from the rent payable to the Crown under a new Patent. The Chichesters were to have liberty to take salmon for domestic use, and to retain the eel-weirs at Toome, subject to royal regulations.

On the 7th December, 1638, the Commissioners made an “Order of Composition” embodying these terms, but the family evidently contended that the allowance of £40 a year was not a fair set-off for the £100 paid by the Londoners. Brisk haggling followed, and at length Strafford agreed to an amended “Order of Composition,” dated the 19th September, 1639. This raised the £40 annual allowance to £60, but all privileges of fishing were withdrawn. The Chichesters agreed. This amendment brought their rent under the proposed new Patent to within £2 16s. 6d. of that previously paid, and the fine was fixed at £467 17s. 6d.

An indefeasible Patent was now to be granted them, and with this bargain they and Strafford were satisfied. The arrangement dealt a deathstroke at the oft-challenged title of the Devonians to the great Ulster fishery. It submerged the Patent of 1604 with those of 1606, 1608, and 1621 in a common condemnation.

When the terms of the surrender came to be drawn up in 1639, although the King’s Letter mentioned Lough Neagh only, Strafford required that the Bann should be also renounced, and this was agreed to. Before he finally left Ireland the new Patent was not ready. It was sealed in September, 1640, by his Deputy, Wandesforde, after his departure. Everything was accepted by the Chichesters without a murmur. Neither on Strafford’s impeachment at Westminster in 1641 nor when the Planters in the Dublin Parliament impeached his chaplain, Bramhall, did they join in hounding him down.

Edward Lord Chichester then sat in the Irish House of Lords, and his son, Sir Arthur, in the Irish Lower House; but they never took the side of Strafford’s enemies, although both assemblies were worked upon by Sir John Clotworthy and the Earl of Cork to purvey testimony against him. This fact bears vitally on future events in view of allegations made in 1661 by Sir Arthur (then Lord Donegall) to befool Charles II. into making him a regrant of Lough Neagh and the Bann. Sir John Clotworthy, who was Pym’s instrument in promoting Strafford’s impeachment, sat with Sir Arthur in Dublin as member for Antrim; and, if the Chichesters had a grievance against the Lord Lieutenant, Clotworthy would not fail to refer to it in his evidence, even if the family kept silence. The report of Strafford’s trial proves that, while Clotworthy, Lord Cork, and others loudly testified against him, no complaint of injustice on Chichester’s behalf was made. This attitude amounted to a confession that the fisheries which had been wrongly come by were rightly taken away.

Still, amidst the uncertainties of the times, the family were ready to seize upon any chance that presented itself to win them back. Departing from an otherwise universal practice, they left the new Patent unenrolled, although the Crown at once enrolled the surrender. Their omission was the more striking because the Patent was the only unimpeachable evidence of title to their estates which they possessed. Neglect could not be imputed as the reason for it. Their calculation evidently was that, by keeping the terms of the Patent secret, they might by some turn of fortune be enabled to recapture the fisheries without the world knowing that they had been forced to yield them up.

Nor was this a far-fetched expectation in those days, as, even if the surrender became public, everyone knew that a surrender was not an unusual prelude to a regrant. No one, therefore, could affirm, as long as the Patent could not be inspected, that they had no claim to Lough Neagh or the Bann. Non-enrolment hid its scope from inquirers, and was part of a design to attempt the recovery of the coveted waters whenever occasion offered. Strafford’s execution, and the untimely death of Wandesforde, who perished in grief at the Lord Lieutenant’s fate, helped their plans. Then sudden as a lightning flash to sear the meshes of their webs broke the Ulster Rebellion of October, 1641.

Sir Arthur Chichester was at that time Governor of Carrickfergus, and his garrison there furnished the soldiers who massacred his Catholic tenants (with their women and children) by night in Island Magee. Whether this bloody business preceded the insurrection of 1641 and provoked it, or was a reprisal following thereon, is a moot point between the partisans of the Planters and those of the expelled natives. The first attempt at its “history” by Chichester’s muse laid the blame on Scottish regiments. It was soon proved that no Scotch soldiers landed in Ulster till after January, 1642, the date assigned for the crime by the Settlers. “January” was too hurriedly chosen by the apologists for slaughter, and this, perhaps, because the Governor of Carrickfergus would have been able to show that he was then somewhere else.

When the time of the arrival of the Scotch regiments was established it was too late to change “January” to another month. Sir Arthur himself remained mute. He offered no defence or explanation for the crime, nor announced that any of the garrison were punished, or even admonished. As to whether he was a man capable of perverting dates or inspiring falsehoods his conduct in other fields of enterprise may assist to a conclusion. One test of his character in this respect is supplied by the documents and statements he put forward to regain the fisheries when kingly power was re-established. If he made a false case concerning the title to real estate he may well have devised excuses to escape the blame of blood-guiltiness for the killing of his serfs.

Whenever massacre benefited the Planters enough murderers always survived to inspire pamphleteers and historians with their version of the “facts.” Native imitators generally ended their activities on the gallows, and their epitaphs are framed by their executioners. In tracing such incidents of conquest—from Gaul to Mexico—it is inevitable that the earliest and best opportunities for penmanship and “impression” should be always enjoyed by the triumphant faction.

That the rebellion of 1641 entailed sufferings on many Planters as severe as those endured by the natives whom they had driven out a generation earlier is beyond question. As the movement spread, the clansmen of the O’Neills, O’Dohertys, O’Cahans, O’Donnells, and Maguires retook their patrimonies, and again ate fish on Fridays without paying toll to strangers. The South then took fire, and England, having her own rebellion on hand, lost control over the greater part of Ireland for a dozen years.

Not until 1653, when Cromwell, in command of the English rebels, bloodily ended the struggle, was the country subdued. Then the clearances of the Ulster Plantation were extended to Leinster and Munster. “Commonwealth” ordinances proclaimed a new “settlement.” James I. aimed at planting a province. The Ironsides applotted a kingdom. One of the Statutes of the Long Parliament assured the Irish, in an amiable preamble, that “it was not intended to extirpate their nation as a whole.” Thanks to this moderation, only three of the four provinces were parcelled out among the soldiers, and the bracing crags and bogs of Connacht were left largely to the Catholics. Still Oliver’s Plantation, though thorough, did not meet with complete success. It withered with the despotism that begot it.

During his sway a strange chapter was added to the story of the Northern waters.

CHAPTER XX.
THE PURITAN SCRIVENERS.

In February, 1654, the London Corporation petitioned Cromwell to be restored to their Irish estates. The Protector readily consented. Indeed, his kingly victim had promised in 1641 to cancel the confiscations of the Star Chamber. A Commonwealth Patent regranting everything that had been seized from the City by Charles I. was enrolled at Westminster and Dublin in March, 1657. The Londoners retook possession beforehand, and once more became masters of the Bann.

Hardly were they reinstated when they fell victims to a second parchment-plot to filch the river away. This time it was contrived not by the Chichesters but by one of their prayerful pupils, Sir John Clotworthy. That adventurer (mentioned already as Pym’s tool in compassing the death of Strafford) was son to an old servitor of the “great Deputy,” Sir Hugh Clotworthy, who came to Ireland during the Elizabethan wars, and was appointed “Captain of the Boats” on Lough Neagh. In 1605 Hugh received from Chichester a grant of the lands of Massereene, and was afterwards knighted by him. In 1618 Sir Hugh was awarded a pension of 6s. 8d. a day for the joint lives of himself and his son, John, then not twelve years old.

Much history turns on this episode. Pensions for joint lives had just been prohibited by royal order, and Sir Hugh’s salary as “Captain of the Boats” was only £40 a year, while a pension of 6s. 8d. a day comes to £121 13s. 4d. a year. Even in Stuart days such a job could not stand. It took four years to unmask; and then, under pressure, the pension was gracefully “surrendered.”

After Charles I. came to the throne, Sir Hugh took advantage of the ignorance of the new Crown officials to ask for compensation for the “loss” of the pension. Although he deserved the stocks for having originally outwitted the Exchequer, the King in 1628 gave him £700, with a promise that his son should be appointed to a “company of horse.” Sir Hugh died in 1631; and, two years later, Sir John petitioned for his “company of horse.” The flight of time, and the changes in the personnel of the Government, had caused the case to be forgotten, so Sir John invented a new version of the pension, and kept back the fact that his father had received compensation for its loss. His petition was not granted; and when Strafford became Lord Lieutenant Sir John’s prayers ceased, for his political and religious leanings were not on the royal side.

As a member of the Irish Parliament, Clotworthy now began to mark himself out as a pugnacious Presbyterian. Hence Pym, and his backers in the English House of Commons, caused him to be elected for the pocket-borough of Malden, to abet their designs at Westminster against Strafford. There he became so zealous that for years he was an outstanding figure on all Committees manned by the anti-royalists. He helped to bring Strafford and Archbishop Laud to the scaffold, as well as his old school-fellow, Lord Maguire, and was of use to Cromwell in smoothing his path to power. In time, of course, Sir John met with the usual fate of the zealot, being expelled from the House of Commons and accused of embezzling war-stores intended for Ireland. In 1648 he fled to France; and, on venturing to return, was imprisoned. Cromwell released him, and later on admitted him to favour. To Clotworthy the saying is attributed that: “Religion should be preached in Ireland with the sword in one hand and the Bible in the other.”

When the wars ended, such a man found Oliver easy of approach, and he revived the demand for his “pension.” He had received his “company of horse,” and his father had pocketed £700 compensation; but, being a sturdy beggar, he got his petition referred to two leading Undertakers and friends, Lord Broghill (son of Lord Cork) and Colonel Arthur Hill. In spite of their kindliness towards him, they found his case too full of holes, and reported against it. On their advice the Cromwellian Privy Council resolved on the 25th April, 1656, that no claim for arrears of pension from the late King should be admitted. This was a courteous way of disposing of Clotworthy’s “grievance,” for they might have added that the pension was unlawful in its origin, and that both he and his father had been compensated for its loss. Yet, stale and untenable as Sir John’s pretensions were, his persistence carried the day. He stood in no awe of the Commonwealth Council; and, passing over its head, he appealed to his old friend the Protector, who called for a fresh report. This was enough. What were the terms of the report, or who made it, is unknown; but on the 13th May, 1656, Cromwell cited it as a reason for awarding compensation to Clotworthy. He surmounted the objections which subordinates had raised by basing his decision, not merely on the ground of extinguishing the “pension,” but of rewarding past services.

The reward took the form of a grant to Clotworthy of a lease of Lough Neagh for 99 years. Doubtless he craved the Bann also; but that was pledged to the City of London. A Signet Letter from Cromwell (patterned on a King’s Letter) authorised an Irish Patent in Sir John’s favour, at a rent to be settled by the Commonwealth Council in Dublin. That body was composed of his own cronies; Cromwell’s son, Henry, being chief of the Executive there. Irish grants were cheaply bestowed at that epoch; and, if the Lord Protector had been minded to give anyone a lease of the whole island, at a peppercorn rent, his power to do so could not be gainsaid.

Clotworthy at once journeyed to Ireland with the Signet Letter; and in July, 1656, presented it to Henry Cromwell. Instead of being content with the valuable gift he had received, he began an intrigue to enlarge it. In this he was abetted by the son of the great Puritan and his Council, who showed themselves as corrupt as the worst parasites of the murdered King. They fixed the rent on Lough Neagh at £5 per annum for the first seven years, and £6 thereafter. Then they conspired to extend the lease enormously beyond what Oliver bestowed. The men who had taken off a King’s head to found a Commonwealth, and who opened business with a psalm, leaned to all the vices which had made the monarchy of the Stuarts odious.

The Republican Attorney-General for Ireland was a person named Basil, who had come over to “plant” in Donegal some years earlier. Basil’s good fame in his own country was scanty; and when the House of Commons nominated him as escheator in Ireland the House of Lords for years withheld their approval to his appointment. His behaviour justified their forebodings. Taking Sir John Davies for his model, Basil played towards Clotworthy the part Davies had acted for Chichester. Untrammelled by supervision, he smuggled into Sir John’s lease of Lough Neagh a grant of the fishery of the Bann, from the Lough to the Salmon Leap at Coleraine. It was an exploit as remarkable in a Republican as any theretofore wrought in the name of a King.

Basil knew, of course, that the entire river was pledged to the Londoners, as his predecessor had known it in 1609. But, just as Davies abetted its capture by Chichester, so the Commonwealth Attorney-General in 1656 made State policy subservient to sordid private interest. Indeed the excuse could be invented for Davies, when he betrayed his trust, that the bargain with the Corporation was not then finally settled by the King. Basil, in 1656, knew that it had been perfected by the Lord Protector, and that the Bann was actually in the Londoners’ possession, when he conveyed it to Clotworthy. Moreover, having drafted a fraudulent lease, he certified that it was framed “according to the tenor of his Highness’s Letters of the 13th May, 1656.”

Every man of the Dublin Cromwellian Executive—viz., Henry Cromwell, R. Pepys, Miles Corbett, Robert Goodwin, and M. Thomlinson, signed the lease. These were the saints who represented all that was godly in a land “darkened by the mists of Popish superstition.” Of the five, Pepys was Chief Justice, and Corbett Chief Baron. That they subscribed with consenting minds, and not mechanically, sufficiently appears. Oliver’s Letter, in granting Lough Neagh, asked them to decide on the rent which the State was to receive for it. To carry out the cheat as to the Bann they had to fix two separate rents, one for the Lough and the other for the river. The Bann they set down at £35 for the first seven years, and £44 thereafter, and this brought home to them the fact that the river was seven times a more valuable fishery than Lough Neagh. Yet their instructions never mentioned the Bann. To complete the trick the Clerk of the Council, Thomas Herbert, certified that he had “entered and examined” the documents on which the lease was issued. Guilt, therefore, sat on the consciences of all, for not only had they given away Lough Neagh for a song, but they sacrificed without authority what on their own showing was seven times more valuable. The Londoners deemed the Lough worth £100 a year in 1622.

When the lease was enrolled the gang grew alarmed. Clotworthy, therefore, got Henry Cromwell to apply to his father’s secretary in London, John Thurloe, to cloak the fraud. In December, 1656, Henry implored Thurloe to obtain from his father a fresh Signet Letter sanctioning a grant which would include the Bann. Thurloe ignored his supplications, and thus the hypocrites were left in the plight of men who, to rob the City of London, had betrayed their master.

The Commonwealth Charter, which restored the estate of the Corporation, including the Bann, was issued three months later, and thus two repugnant grants came into existence. The Dublin junta kept their secret to themselves. Thurloe also held his peace, and in the following year Cromwell died. Thurloe, however, carefully preserved the correspondence, and after the Restoration hid it behind the ceiling of a garret in his chambers at Lincoln’s Inn, with other Cromwellian literature. There it was found fifty years later—embalmed in the odour of sanctity.

Cromwell’s death soon led to a flood of intrigue among his Anglo-Irish retainers. Each was intent on asserting one great principle—how best to hold on to the spoil with which confiscation had endowed them. If Republicanism would secure this, they were Republicans. If possession must be tempered by monarchy—then “Long live Charles II.”

CHAPTER XXI.
REBELLION REWARDED.

The Irish Republicans quickly came to the conclusion that monarchical principles possessed a virtue which afforded the best guarantee for their interests. Their budding royalism was threatened with blight from one quarter only—the exiled Irish soldiers who had fought for Prince Charles at home and abroad. These unreasonables had to be reckoned with, for Gaelic swordsmen, gentle and simple, formed part of his bodyguard and influenced his decisions. He even sympathised with their religion while his exile lasted, for the Duke of Ormonde relates that he once found his Majesty secretly hearing Mass in Brussels in a fit of lonely piety.

The Cromwellians, awake to these difficulties, and ready to jettison any inconvenient doctrines which blocked their way, held a Convention in Dublin in 1659-60, to debate “the situation.” First they seized Dublin Castle from the weaklings who represented the tottering Commonwealth, and next they imprisoned all Catholic loyalists who could be laid hands on, to prevent their having any credit in bringing back the King or earning his gratitude. Then they sent an embassy to Brussels to propose conditions to his Majesty. Sir Arthur Forbes (son of the “discoverer” of 1628) was their messenger, and on his return Forbes reported hopefully to their spokesmen, Sir Charles Coote and Lord Broghill (Boyle). On the 16th March, 1660, the exiled King wrote engaging that “whatever Coote should promise and undertake on his behalf (which it was in his power to perform) he would make good.”

Clotworthy was a leading member of the cabal; and on the 30th March, 1660, he was nominated to proceed to Flanders to conclude the negotiations. When he reached London, his journey was stayed, as General Monck had won over Speaker Lenthal to his views, and the royal cause was thriving without the aid of cross-Channel converts. Sir John, therefore, remained in England to influence opinion against attempts to disturb the arrangements of the Irish confiscators. King Charles, on the eve of his return, issued from Breda a Declaration securing in their estates those of his enemies who had not taken part in his father’s execution. At the same moment he promised that the Irish who had served him should be restored to their lands. Unhappily, the pledge to the Irish was broken, while the bargain with Coote was kept.

Much huxtering and hugger-mugger went on at Whitehall when the King came back. A large subscription was raised among the wily “Undertakers” to bribe his courtiers, and using this lubricant, Clotworthy and his friends found easy access to the Throne. Their aim was to ensure that the confiscations should be legalised, no matter who might suffer. Charles summoned a Parliament for each of the Three Kingdoms, but the Irish Executive (staffed with men of Cromwell’s mind) found no difficulty in packing the Dublin House of Commons with prayerful freebooters. The Restoration, which brought a joyful change in England and Scotland, made none in Ireland, unless for the worse. The loyalty and sufferings in exile of the King’s friends were forgotten. The squalid attornment of his enemies was remembered and rewarded.

Irish Cromwellianism after the Restoration remained organised and formidable as before. It dominated the Government; and its mayors and sheriffs returned to Parliament such men as they listed. Out of 260 members in the Lower House, only 64 represented counties—the rest being sent up by hole-and-corner “Corporations” to which the natives were not admitted. These phantom bodies (dowered with two members) were manned by Ironsides who could hardly pronounce the names of their billets. Indeed statutory power was soon afterwards taken to replace the “barbarous and uncouth” Gaelic place-names (which limned every lineament of the landscape) with sweet-sounding “Jonesboroughs” and “Draperstowns.”

In the counties a bare handful of the inhabitants possessed the franchise. The voting was a mere taking of “voices” in the sheriff’s parlour. A “Legislature” constituted in this fashion consummated in 1662-5 the confiscations which the Acts of “Settlement” and “Explanation” enshrine. Lord Chancellor Eustace summed up the result in a letter to the Duke of Ormonde:—“Those who fought against his Majesty are to have the estates of those who fought for him.” The King’s secretary, Nicholas, in a letter to Eustace expressed his regret that the “soldiers” should command such influence in the new Parliament. Still his Majesty yielded himself up to those who helped to betray his father, declaring he was determined never to go “on his travels” again.

In the island which had been the most faithful of the Three Kingdoms to the Crown, Cromwellianism survived as hardily as in the days of Oliver himself. A packed Parliament, a ruthless Executive, and a venal judiciary made or declared the law to a prostrate people. In England and Scotland the Royalists came into their own again. In Ireland they were betrayed or plundered or forgotten.

The only clog on the Republican triumph was the King’s scruple against allowing the leading regicides to retain their booty. Estates in Ireland had been grabbed by Cromwell, Ireton, Ludlow, Bradshaw, Corbett, Jones, Axtell, and others, whose hands reeked with the blood of Charles I. These were declared forfeit; but their rightful owners were not allowed to get them back. Over 111,000 acres in seventeen counties, at a rent of £8,726 a year (which would now represent ten times that amount), awaited disposal. To prevent their restitution to the natives, it was slyly proposed to Charles II. that his dear brother, the Duke of York (afterwards James II.), should take them as a gift. James accepted the lands, and Charles consented—to the disgrace of both. After that, no assailant of the doings of the Dublin Parliament could lightly accuse it of unreasonableness to the King.

CHAPTER XXII.
THE “FAMOUS PAPER.”

In July, 1660 (two months after the Restoration), Clotworthy learnt that Sir Arthur Chichester, now Earl of Donegall, was travelling to London to greet the new sovereign. Lord Donegall and his father had fought for the royal cause as strongly as Sir John and his brother had supported the usurpers. An earldom was conferred on Sir Arthur in his father’s lifetime, at the request of the Duke of Ormonde, for services certified to have been performed in Ulster when the Scotch troops deserted Charles I. Lord Donegall was coming to town, relying on Ormonde’s help and the King’s gratitude, to work for the restitution of the fisheries surrendered to Strafford. Doubtless he knew of Cromwell’s lease to Clotworthy, but he also knew that such grants had become nullities. So, too, did Clotworthy, and a race hotly contested began between them for time and favour.

On the 1st August, 1660, a frigate left Dublin by royal command to fetch the Earl of Donegall to England. To forestall the enemy Clotworthy presented a petition on the 6th August, 1660, praying the King to confirm Basil’s lease. At the same moment the London Corporation was moving for a royal charter to replace Cromwell’s. Thus there were stirring around Whitehall three rival claimants for the northern fisheries. Charles felt bound, as Cromwell did, to respect the pledges made to the Corporation as to their Ulster estate. He was largely a stranger to events in Ireland during his exile; and was attended at Court for Irish affairs by Bishop Bramhall, late of Derry, and formerly chaplain to Strafford. Bramhall had followed Charles to the Continent, and exercised there “curiously unepiscopal functions as a Royalist prize-agent.” To him Clotworthy’s petition was referred; and, on the day it was received, the Bishop reported in its favour, without making the smallest inquiry. Such haste in an Episcopalian dignitary to help a Presbyterian “malignant” shows how these Christians loved one another.

Sir John’s petition was a network of falsehoods. It re-hashed a number of old fables about the long-lost “pension,” with a few new ones for garnish. Beginning with a lie in point of date, it set forth that Sir John had a pension of 6s. 8d. a day granted him by Patent on the 2nd July, 1640. In 1640 Bramhall was Strafford’s chaplain; and this romance cannot have imposed on him. Strafford sailed from Ireland in April, 1640, to crush the Scotch rebellion, knowing that Clotworthy was his bitter enemy. He left behind him as Deputy a loving friend, Wandesforde, who was also Bramhall’s patron; and Bramhall, of all men, was aware that Wandesforde would not have sanctioned a pension to an opponent deep in intrigue with the Parliamentarians to compass the Lord Lieutenant’s downfall. Besides in 1640 Sir John was only 34 years old, and had performed no service to merit reward. The pension to his father was dated the 2nd July, 1618, twenty-two years earlier. So a false date was put forward lest, if 1618 were mentioned, inquiry might be set on foot to unravel the mystery of a pension to a child under twelve years of age.

The Petition went on to pretend that Sir John had been “obstructed in the receipt of his pension by the usurper Oliver.” This was colossal mendacity, but the account given of Basil’s lease surpassed it:—“On application, the late Oliver granted him, in lieu of the said pension, a lease of 99 years for Lough Neagh and the River Bann, with the fishing thereof.”

No relevant fact was truthfully stated, yet Bramhall certified to the King that he had “studied the petition”; that Clotworthy “is certainly entitled to some compensation in respect of the pension of 6s. 8d. a day”; that both the fishing and soil of Lough Neagh, and of the Bann above Coleraine, were in the possession of the Crown, and that a lease should be granted to Clotworthy on the same terms which it was feigned Cromwell had sanctioned. Bramhall’s traffickings as a prize-agent may explain why an Anglican Bishop, who owed everything to Strafford, should favour the pietist who had not only sent his patron to the block, but had embittered and disturbed Archbishop Laud’s last moments on the scaffold.

The King (with Ormonde beside him) could see no reason for the haste with which his courtier urged that Sir John’s lease should be renewed. He put aside the petition and left the Bishop’s report unnoticed. Secretary Nicholas was then moved to jog his Majesty and request “that a warrant be prepared for his royal signature for drawing a Patent in Sir John Clotworthy’s favour, according to the report of the Bishop of Derry.” Still Charles made no sign. Possibly some recollection of his engagements to the London Corporation crossed his mind; perhaps the Duke of Ormonde dropped a hint in Chichester’s interest; or his Majesty may have sought for a reason why he should extend such benevolence to Cromwell’s righthand man. At any rate, the King was not touched to persuasion.

The feverish Clotworthy now tried another stratagem. He knew that if a King’s Letter were sent to Ireland authorising a Patent (as Secretary Nicholas recommended), this would involve delay and inquiry, and that the arrival of Lord Donegall, or the intervention of the Londoners, might prove fatal to his hopes. He, therefore, changed his hand; and, instead of an Irish Patent, pressed for a lease direct from the King at Whitehall. This would involve an innovation in procedure startling to Crown lawyers. Even Cromwell had not attempted any such inroad on ancient usage, but carried out his behests by the olden method of sending a Signet Letter to Dublin to authorise a Patent there under the Great Seal of Ireland. The needs of Sir John, however, brooked no delay, and sticklers for form could be “squared.” Still the King, in spite of the pressure put upon him, refused to yield, and for three months he held firm.

Towards the end of September, 1660, Lord Donegall reached London, greatly to Clotworthy’s discomfiture. To anticipate his arrival Sir John sent £20 to the Crown Office in Dublin to pay a half-year’s rent which would come due under Basil’s lease on the 29th September. This thrusting of payment on the royal officials was an attempt to rivet his claims and pretend they had been recognised on behalf of the King. The rent was dispatched almost to the day, though the lease gave six weeks for payment. Whether he had been as punctual in the time of the “usurper”—if he paid at all—is more doubtful; and no evidence of any other payment, before or after, exists. Then to strengthen his influence at Court Sir John threw another cast, and struck up relations with Colonel Daniel O’Neill, Groom of the Bedchamber and head of the princely house of Ulster.

O’Neill was the intimate and trusted friend of Charles II., on whom the growing difficulties of the Irish situation were pressing awkwardly. He expected to be restored to his estates in Down, having battled for the Crown on nearly every field in the three kingdoms. O’Neill had no love for Clotworthy, but still less for the Chichesters, because of the imprisonment of his father, Sir Con, in Carrickfergus by the “great Deputy” in 1603, and the forced partition of Claneboy with Hamilton and Montgomery to purchase pardon for a trumped-up “treason.” Sir John to enlist his help promised to secure the restitution of his property, part of which he had himself come by, and an understanding between them was arrived at in the crisis of Irish affairs at Court. Charles II., beset by conflicting and distracting demands, saw no way of keeping his word to the rival claimants who thronged upon him. In the Breda Declaration he had pledged himself equally to the Catholic Royalists and to their Republican supplanters. Compromise seemed impossible, and the King was caught in a vice, without hope of honourable escape, for both sides pressed pleas that could not be overlooked.

Coote’s faction, at the Convention in Dublin, demanded by resolution that all the estates of the Adventurers, as they stood on the 7th May, 1659, should be confirmed by Act of Parliament. Under such an arrangement, Clotworthy’s lease, and many other frauds, would have been legalised. A “settlement” so one-sided would destroy the hopes of the natives, and the Catholic soldiers who had surrounded Charles abroad raised such a protest that it was rejected by his Majesty. The disappointed Cromwellians waxed wrathful, and to soothe them it became known that any alternative they put forward which offered an outlet for the King’s embarrassment would be accepted.

On the 9th November, 1660, there waited on Charles at Whitehall a trio consisting of Clotworthy, Lord Broghill (Boyle), and Sir Audley Mervyn. They produced a paper showing that all-round justice could be done, and that there was land galore for every claimant. The ingenious Clotworthy had found the key to the maze in which his Majesty was enmeshed. It was a blessed discovery. His acreages and estimates were accepted with royal grace and a total absence of investigation. The scheme he broached—known afterwards as “the famous paper”—became the basis of the “Act of Settlement” of 1662, and was hailed by courtly experts as a solution of the insoluble. The King could now turn away from a knotty problem to lighter themes, and naturally his obduracy towards Sir John’s petition for a lease melted away. Such was his gratitude that he not only promised to confirm it, but conferred on the author of the “famous paper” the peerage of Massereene. The lease secured the Bann, as well as Lough Neagh, to Clotworthy, although the river had for years been in the possession of the Londoners.

The “famous paper” in effect embodied the original demand of the Cromwellian Convention under a different guise. More fair-seeming than that project, it was equally fatal to Royalist hopes. Thus Sir John was the artificer of both his own and his party’s fortune on that famous night at Whitehall. When he bade his Majesty “good evening” he might well deem himself a thrice-lucky adventurer. He must have chuckled heartily as he strode to his lodgings at the “Three Elms” in Chandos Street at the thought of the great ones he had hoodwinked and the obstacles he had overcome. To take in Cromwell over the “lost pension” and win his Signet Letter for Lough Neagh; to bribe Henry Cromwell and the Dublin Executive to super-add the Bann; were strokes of genius; but to beguile Charles II. into giving kingly confirmation to a fraudulent lease about which even Cromwell had been deceived, and gain a peerage in the process, was a success almost uncanny. The King and the doomsman of his father alike outwitted; the Corporation of London and their enemies, the Chichesters, alike befooled; the friends of Laud and Strafford enlisted and placated; and every minor difficulty surmounted—these made up a combination of achievement which entitles the student of villainy to bespeak for Clotworthy a special niche in the gallery of rogues.

To outpace his competitors in securing the grant he accepted a lease from the King direct, instead of obtaining a Patent such as he got from Cromwell. No authority existed for the issue of a lease of Irish Crown property lacking the Great Seal of Ireland, and no such lease was binding. Nevertheless, by this means a sidelong Royal sanction was given light-heartedly to a grant of Lough Neagh as well as the non-tidal Bann. At that moment the new Charter for the Londoners, granting them the entire Bann, was being prepared, and was shortly afterwards enrolled, in repugnancy to the Lease.

The new-made Lord Massereene next arranged to baulk Colonel O’Neill so that he could retain the lands he had promised to restore him. O’Neill was married to the Countess of Chesterfield and had been schooled a Protestant under the patronage of Archbishop Laud. He was famed as “of a courage very notorious.” The operation of the Act of Settlement in his case illustrates the fate which befell Royalists less favoured. To thwart O’Neill, a fair-seeming proviso was inserted in the draft Bill of “Settlement.” It declared merely that, for every estate given up by the Planters, they should receive equivalent lands elsewhere. Nothing could sound more reasonable.

The new peer and his friends, however, were determined that the “joyful Restoration” of his Majesty should bring joy to no one in Ireland but the King’s late enemies. Their faction was led by men well versed in affairs of State; while their victims were either returned exiles or persons long estranged from Courts and Parliaments.

The “Settlement” Bill was a purely Cromwellian composture, for, although it embodied the King’s recognition of the loyalty of his Irish soldiers, this was offset by an envenomed tirade against the mass of the people. The keynote was struck in a preamble which recited “the unnatural insurrection, murther, and destructions of the 23rd October, 1641,” while the massacres and dispossessions which had provoked the outbreak were left unnoticed.

When the Bill became law a Court of Claims was appointed to hear applications for restoration from ancient owners, and applot the territory to be awarded in exchange. This tribunal was presided over by Sir Audley Mervyn, Speaker of the Irish House of Commons, one of the trio who promoted the “famous paper.” He was a venal parasite who ruled against every contention on behalf of the Irish. To make sure that the Cromwellians should suffer no deprivation, his “Court” announced, at an early sitting, that there were no lands available out of which the Undertakers could be “reprized”—i.e., receive equivalent estate. This was in flat contradiction of the assurance to the King in the “famous paper”; but it was true, for the Adventurers so managed that all such property had meanwhile been given away among themselves. This was done by way of what was blandly called “cautionary reprize,” which meant that—taking time by the forelock—they had annexed everything for their faction.

Colonel O’Neill, Protestant though he was, could not get back a rood of his land. Even Charles II. proved powerless to help him. The King created him Postmaster-General of the United Kingdom, but nothing in the way of restitution could be wrung from Lord Massereene. When O’Neill died his Majesty interested himself on behalf of one of his cousins, Sir Henry O’Neill, whose lands were also in Massereene’s hold. Pressed to make restitution in a debate in the Irish House of Lords, the new peer rose and, taking the Royal Declaration in one hand, he drew his sword with the other, exclaiming: “I will have the benefit of it with this.”

When any Royalist soldier or “innocent Papist” asked for reinstatement, the Planter in possession demanded what equivalent land he was to get before being ousted? None was to be had, and the intruders, after a fine parade of legality, retained their domains, while the natives were left out in the cold. The promises made them in the King’s Declaration, in the “famous paper,” and in the Act of Settlement remained a dead letter.

Certain Catholic officers were mentioned by name in the Act and guaranteed restoration by its clauses. This created a difficulty, so they were left to die in London of hunger and plague. Charles II. would not as much as pay their way to Dublin to enable them to seek redress.

CHAPTER XXIII.
LORD DONEGALL’S ROMANCES.

At the height of Clotworthy’s intrigue for the confirmation of his lease Lord Donegall reached London, being wafted across the Channel in a royal frigate. He soon realised at Whitehall that those whom he regarded as the “King’s enemies” had grown to influence and had supplanted many of the “King’s friends.” Still he believed that olden services would not go unrewarded, and he knew that the Duke of Ormonde would stand by him. He and his father had hidden away Strafford’s Patent for twenty years, unenrolled. To obtain a new grant which should include Lough Neagh and the Bann was the wish of his heart. He came to Court, not merely to pay homage to Charles II., but to seek redress for the surrender forced on his family by the Minister of Charles I. Lord Donegall knew the favour shown to Clotworthy by Cromwell, and it roused his ire to think that the son of an old subordinate should carry off the fisheries which he looked on as a perquisite of the Chichesters. Were there gratitude in kings, he thought, Cromwell’s gift must be recalled and bestowed on himself.

Yet his lordship found his rival as highly esteemed by Charles II. as he had been by the Lord Protector. Nor did the support of the Duke of Ormonde countervail his influence. All that their joint exertions effected was to delay Clotworthy’s triumph. When the “famous paper” begot the new lease Lord Donegall was almost in despair, but he did not give up the struggle. The obstacles in his path which the lease created, not to speak of the royal engagement to the London Corporation to restore the Bann, seemed insurmountable. A tussle with Sir John at Whitehall taught him that it was hopeless to think of winning anything from that stout fighter. Still harder was it to prevail against the Londoners. He found the influence of his opponents overpowering, and their claims blocked his hopes. Lord Donegall, therefore, cast about for some indirect means of gaining his ends.

Wily councillors before long suggested a way out. He was advised to abandon his original purpose and send in a petition for a “reversionary” Patent for the fisheries. This was only to take effect at the end of Clotworthy’s lease, but for immediate consolation he also prayed for a grant of the rent payable under it to the Crown. The plan was a catching one to recover lost ground, but what reasons could be found to support it? None existed, so Lord Donegall proceeded to invent them. He had to get over the difficulty that Strafford compelled the surrender of 1640 as an act of restitution, and had compensated his father and himself by the grant of an indefeasible Patent for the rest of their ill-gotten estates with an allowance of £60 a year in the Crown-rent. Acceptance of the advantages conferred in 1640 could hardly be reconciled with a demand for further compensation in 1660. To blame Strafford for enforcing the surrender would be natural and tempting, but was unthinkable, as any slight on the memory of the martyr-Viceroy who had given his life to uphold Charles I. would be fatal in a suppliant to Charles II. Lord Donegall, therefore, had to present matters in a way which should make it appear that his father and himself in relinquishing the fisheries were the victims of arbitrary power, and at the same time find a scapegoat to accuse—an attack upon whom would not offend the King.

The position was delicate, and needed the best-considered falsehoods. Lord Donegall, however, was no witling, and the tradition of the “great Deputy” stirred his brain until at length the necessary culprit was hit upon in Deputy Wandesforde. He, in Strafford’s absence, signed the Patent of 1640, and on him all the blame for compelling the surrender was cast in 1660. The innocent Wandesforde was charged with having deprived Lord Donegall of a pension of £40 a year, and “forcing on him fresh Patents under colour of his having defective title.” This was as gross a myth as the fables of the Clotworthy pension or the promises of the “famous paper.” Wandesforde merely carried out arrangements previously made by the Lord Lieutenant; and had nothing to do with the surrender, or the question of an allowance. Yet this blameless subordinate, who had been dead twenty years, was saddled with the doings of his master and with the hagglings of the Commissioners for Remedying Defective Titles.

The “pension” story rested on the fact that originally Strafford agreed to allow the Chichesters £40 a year in lieu of the £100 received under the Londoners’ lease of Lough Neagh. This, to soothe the family, he increased to £60; and, instead of paying it by the clumsy method of a pension (as was at first intended), he reduced the rent under the Patent by £60. The change did away with the earlier proposal, and was gladly welcomed by Lord Chichester. Yet Charles II. was told that Wandesforde had robbed the persecuted and faithful peer of a £40 pension. To prove it Lord Donegall produced the first Order of the Commissioners as to the £40, and suppressed the second as to the £60. The first Order fitted in with Clotworthy’s £40 rental to the Crown, which Lord Donegall was seeking to capture, and balanced beautifully with the “equities” which he contended for. Any distorted story of this kind went unscrutinised by the gay advisers of Charles II.

It fell in with the purposes of Lord Massereene that Lord Donegall should secure a reversion of his lease. To him it was immaterial to whom he paid rent, or who succeeded to the fisheries after his term expired. Lord Donegall’s success would strengthen him against the Londoners as to the Bann, for each would have an interest in resisting their claims. Accordingly the twain “got together”; and thenceforth the new peer became the ally of his late rival.

The symmetry of the proposal that the “lost pension” of one nobleman should be supplied from the rent due to the Crown by the other, captivated the courtiers at Whitehall. It was such a pretty arrangement, and so historically just in the eyes of all who had been bribed to promote it. In the golden days of the Restoration, the thinnest coating of fact served to veneer any romance put forward by a favourite. Charles II. was an accommodating prince. What cared he for recitals in parchments? There was no one even to remind him that, in the draft of his Charter to the Londoners (then almost ready for his signature), the Bann was once more declared their property. So three months after Clotworthy’s triumph the King yielded to Lord Donegall’s prayer, and, on the 28th February, 1661, a “Letter” was made out authorising a Patent to him of “the reversion” of Lough Neagh and the Bann, with an immediate gift of the rent of £40 a year coming from the new lease of Lord Massereene.

The Royal Letter was embellished by recitals drafted by Lord Donegall and crammed with untruth. It set forth that James I., in 1621, granted the fishings unto Arthur, Lord Chichester; that in 1638, “to comply with our late royal father’s occasions,” they were surrendered to Charles I.; that in consideration of this generosity, the Chichesters should have received “an annuity, pension, or yearly rent-charge of £40 per annum,” with liberty to fish for the provision of their households; but that they were disappointed as to all these promises. This was a moving tale of unrequited loyalty; yet the brows of even the Merrie Monarch would have knit had he been told a tithe of the truth.

The parchments of the previous half-century contradicted every item of this rigmarole and showed what an accurate recital should have disclosed. This was:—

That James Hamilton, through the abuse of spent warrants, came by extravagant grants in collusion with Chichester;

That Hamilton made over much of the property to the Deputy, who, to cloak his rapine, issued a Patent for it to his nephew without kingly sanction, and by the misuse of a Royal Commission;

That the nephew assigned to his uncle all that the Patent conveyed, including the Bann and Lough Neagh;

That, after the Bann was given by Charter to the City of London, £4,500 was paid by his Majesty to “compensate” Hamilton and Chichester;

That a bogus “surrender” to the Crown of the Bann was then made;

That, seven years later, Chichester (after his removal from the Deputyship), as Lord Treasurer, asserted title to the River by means of false entries in the Crown ledgers;

That, by “favour” of the Duke of Buckingham, a King’s Letter was procured in 1620 for a regrant of his estates;

That on this warrant, through the knavery of escheators and inquisitors, another Patent giving him the non-tidal Bann was fabricated in 1621;

That in 1640 Strafford, on discovering the facts, enforced against his heirs a surrender of the river, with Lough Neagh; and

That for this they were lavishly recouped by a Patent granting them valid title to vast properties unjustly come by, with an allowance off their rent of £60 a year.

In the days of the Stuarts, truth and patents were estranged.

On the 10th April, 1662, the Charter to the Londoners was signed. Charles II. gave them once more the River Bann, from Lough Neagh to the sea, as if no adverse grant had been made to Chichester or Clotworthy. He did so in the same words as it had been conveyed to them by James I. and Cromwell.

Two Patents of the river to different interests, within 18 months, was a monstrosity, even for Anglo-Ireland; but not a ripple was raised thereby on the surface of official calm.

No idea of duty to the King appeared among his officers. The habit of taking “presents” undermined their sense of public obligation; and money was freely spent on them by suppliants. Cash payments preluded the success both of Lord Donegall and of Lord Massereene. Even the English Solicitor-General, for drafting the Act of Settlement, in 1662, to suit the ex-Cromwellians, was presented with a “small token of thankfulness” by them on the motion of Lord Massereene in the Irish House of Lords.

His lordship, though provided with such a willing penman as conveyancer, made no attempt to have inserted in the Act a clause to confirm his lease, while he availed of it to make all the rest of his estates secure. As a “Commissioner for the execution of the Royal declaration,” he wielded large influence in shaping its clauses, yet he avoided anything which would risk bringing the lease under discussion.

Three years later he procured in the Act of Explanation (Sec. 55) a confirmation of his title to some property which he took under the Act of Settlement; but again attempted nothing to legalise the lease. It, therefore, never received recognition from either Statute or Patent. Lord Massereene died in 1665, and for three centuries afterwards his cajolement of Oliver Cromwell, Henry Cromwell, and Charles II. remained unknown. A like penumbra shrouded the Chichester conveyances, during the Irish “dark ages.”

Some 35 years after the Restoration, laws which forbade the teaching of Catholics to read or write, or the sending of their children abroad to learn, were artfully fashioned by the Planters. Edmund Burke described their system as “wise and ingenious.” Illiteracy checked premature scandal against a new and frail nobility, and gave it time to become respectable before the story of the upstarts’ fortune and origin could be widely known.

CHAPTER XXIV.
LAWLESS LORDS JUSTICES.

In June, 1661, Lord Donegall set sail for Ireland, furthered by Treasury permits freeing him from Customs duties. On arrival in Dublin, he sued for a Patent under the King’s Letter of the previous February. No Lord Lieutenant was yet installed, as Monck (the newly-made Earl of Albemarle) failed to come over. Three temporary Lords Justices formed the Executive—viz., Lord Chancellor Eustace and the now ennobled Coote and Boyle. £1,500 a year apiece rewarded them for carrying out their functions, and they discharged them exactly in the spirit of the Council of Henry Cromwell five years before. The King’s Letter was addressed to this trio. Doubtless they had been privily bespoken by Clotworthy in Lord Donegall’s interest, for they responded to his requirements with such alacrity that a new Patent was sealed ten days after he landed. Usually years were occupied from the time the King’s Letter was lodged before a grant could be got out. Many legal formalities had to be complied with; and amongst these the law prescribed, as the most essential, a prior public inquiry in order to guard against encroachment on the rights of others. So vital to validity was this Inquisition that the Statute governing Patents declared void any grant made without it.

The Lords Justices ignored the law, and issued to Lord Donegall a Patent which snatched the Bann from the Londoners, and Lough Neagh from the public, without inquiry or notice to anyone. A dispensation called a “non obstante” was inserted in the Patent, which purported to make it valid despite the non-holding of the inquiry. To include in it a waiver of the Statute was but an added illegality. The Lords Justices could not “dispense” with an Act of Parliament; and the King’s Letter did not pretend to authorise the dispensation. Yet the Patent of these ’prentice hands loftily announced itself good “notwithstanding the Statute.”

By the agency of this paltry trio, Lord Donegall on the 3rd July, 1661, was allowed to consummate the iniquity which the “great Deputy” begot in 1603-4. Their grant empowered him to assert anew a claim to Lough Neagh and the Bann, which had been branded as untenable five times in the previous half-century. Scotched by Strafford, assailed by Sir Arthur Forbes and Sir William Power, denounced by Baron Oglethorpe, exposed by Sir James Balfour, arraigned by Deputy St. John, and blighted by a pedigree entailing every vice, it was revived by a tricky exercise of power in an unsettled State, as a sequence to Lord Massereene’s lease.

So rank was the repute of its illegality that Lord Donegall in the following year applied for another King’s Letter to give it a lacquer of legality. With this object he induced Charles II. to affix his signet to a second Royal Letter containing the falsehoods already exposed.

The new Letter declared that:—“When Wandesforde was Deputy it was sought to force fresh Patents on Lord Chichester, under colour of his having defective title. These Patents, which were never enrolled or paid for, shall be vacated; and new Patents for his estates shall be given to Lord Donegall.”

Plainly a fresh effort was to be made to include the fisheries in some legitimate grant covering the whole of the Chichester properties—as in 1621. It was a subtle purpose.

For twenty-two years the Patent of 1640 had been left unenrolled; and now its owner wished to discard it altogether with a view to getting an omnibus Patent. Doubtless he calculated by this means to get rid of the blot on the family escutcheon cast by Strafford, but, whatever lay behind the scheme, it miscarried. An unlooked-for fatality overwhelmed his plans.

While the new Patent was being prepared, Cromwellian strategy in the Irish Parliament was at work; and in 1665 the “Act of Explanation” provided that existing grants would become void unless enrolled within two years. Busily as he strove, Lord Donegall could not get out his new Patent in these two years; and, when the last days of the period were approaching in 1667, he was driven, through lack of time, to enrol the hated grant of Strafford. The new one was never issued, and his whitewashing processes came to naught. He had hoped that, with a title freshly furbished, the Chichesters would go down to history unspattered, and that all proof of past disgrace would be wiped out. Only by the aid of the parchments of 1640 and 1662 could the mazy story of a sixty-year fraud be pieced together; and these he strove to get rid of like those of 1603. The skeleton in the family closet, however, still lay unburied and remained as grisly as before.

The failure to get the proposed Patent “past the Seal” in five years contrasts suggestively with the celerities of 1661, when ten days served the rinsings of a regicide Executive to produce a Patent disposing of the greatest fishery in the Three Kingdoms. No grant for the Donegall estates, therefore, exists (apart from that for the fisheries) save the misliked Patent of Strafford which Charles II. was prayed to “vacate”; after it had been sullenly left unenrolled for a generation. Despite the allegation that it was “forced” on Lord Chichester, it remains the sole title of a family of meritless intruders to the lands of the O’Neills and O’Dohertys. If Strafford’s wraith haunted Dublin Castle in 1667, what time his parchment was tardily lodged for enrolment, the ghost even of “Black Tom” must have wrestled with a smile.

As for the fishery Patent, hurriedly rushed forth by casual Lords Justices to cheat the Londoners and the public, it is the only warrant of the Deputy’s descendants to control Lough Neagh and the Bann. By its “virtue” the right enjoyed by the people of a province from time immemorial to earn a livelihood as their fathers did was challenged, and an exasperating monopoly attempted to be established.

Those who applaud the statecraft which resulted in the spoliation of the princes of Tyrone and Tirconnell may well ask themselves whether the breed which supplanted them is such a vast improvement. No catalogue heretofore drawn up of the sins of Irish chieftains brands them as cheats or forgers—though many other libels against them are extant from the pens of those by whom they were robbed.

CHAPTER XXV.
HOW TO LOSE AN EMPIRE.

In the century which followed the reign of the Stuarts no record worth mention remains of the doings of Lord Donegall’S descendants. Gaelic annalists, who would have cherished local chronicles, had been driven out; and British civilisation had not overtaken or undertaken their work. That the Chichester frauds formed part of a long-continued system practised by the heads of the Executive appears from another exposure made, nearly a century later, in the English House of Commons. After the Revolution, Charles Montagu (subsequently Earl of Halifax, who was appointed Chancellor of the Exchequer in 1694), was accused on the 16th February, 1698, of having in the previous year obtained for himself a grant, under the name of Thomas Railton, of forfeited estates in Ireland worth some £13,000. The lands included those of Lord Clancarty. Montagu, having a majority in the House, defiantly admitted the charge. In 1701, however, he was impeached, on this and other grounds. He again did not deny the facts, and pleaded the authority of King William III. Ultimately, the impeachment was abandoned as impracticable, but Montagu was struck off the Privy Council.

Many of the Elizabethan and Stuart grants reveal a purpose, not only to seize the land of the natives, but to reduce them into slavery. Elizabeth’s charter to the Smiths in 1571 gave, with the territory to be conquered, “native men and women” as chattels. Chichester declared in 1602 that the Irish “should be made perpetual slaves to her Majesty”; and he wished to send O’Cahan to the Virginias instead of to the Tower. In 1605 Hamilton was awarded by James I. “native men and women villeins and their followers.” In 1613 the charter to the Londoners enabled them to take “estrayed bondmen and bondwomen and villeins and their followers.” A Patent of Charles I. presented Hamilton, after he became Lord Claneboy, with “natives and villeins with their sequels.” Cromwell’s shipments of Irish youth as slaves to the Barbadoes was merely a development of this policy.

Small additional infamy, therefore, attaches to the “Protector” for giving effect to the designs of his predecessors. The spirit of the 17th century monarchs and his was the same towards the nation of which Attorney-General Davis declared:

“The Irish be a race of great antiquity, wanting neither wit nor valour. They received the Christian faith above 1,200 years since, and were lovers of music, poetry, and all kinds of learning, and possessed of a land abounding with all things necessary for the civil life of man.”

Earlier than Davies, Spenser of the “Faerie Queene” wrote in 1596:—

“The Irish are one of the most ancient nations that I know of at this end of the world.... They come of as mighty a race as the world ever brought forth ... very present in perils, great scorners of death.”

For the uprooting of such a breed, high political and moral reasons had to be invented, but when the natives were got rid of and their persecutors could discover no political or religious pretexts to cloak their greed, they fastened nakedly on the input and earnings of the settlers from England and Scotland.

These supplanters of the Gael were in the third and fourth generation harassed and skinned as thoroughly as if they had belonged to the outcast race. In the province where Papists were almost forbidden to breathe, the framers of the Penal Code, in the name of “the rights of property,” taught the humbler Protestants the scantiness of their mercies.

The descendants of the “great Deputy” did not attempt to enforce their Patents while knowledge of their origin prevailed and malodor beset them; but in the reign of George III. their baleful activities had consequences which were empire-wide. The extravagance and rapacity of the Chichesters led to the enforced emigration of the children of the Planters, and powerfully contributed in 1776 to the loss of the American Colonies. The armies of Washington were so largely recruited from the evicted tenants of Ulster that, according to the evidence presented to a Parliamentary Committee, half the Revolutionary soldiers were Irish. For this Lord Donegall and his imitators were to be thanked. The “flight of the Earls,” which the “great Deputy” promoted, had for its sequel the flight of the peasants, provoked by his descendants; and with it the breakdown of the imperial tie between Britain and the greatest part of North America.

The American upheaval was itself preceded by a rebellion amongst the Ulster Protestants. A close connection can be traced between the failure of the one outbreak and the success of the other. In July, 1770—only eighty years after the Battle of the Boyne—the offspring of the Planters in the Counties of Antrim, Down, Derry, and Tyrone rose in arms. British writers like J. A. Froude and John Wesley, Irish historians like Lecky and Benn, agree as to the responsibility of the landlords who provoked the insurrection. Froude links together as cause and effect the atrocities of the Marquis of Donegall and the loss of the American Colonies.

He says:—“Sir Arthur Chichester, the great Viceroy of Ireland under James I., was, of all Englishmen who ever settled in the country, the most useful to it. His descendant, the Lord Donegall, of whom it has become necessary to speak, was perhaps the person who inflicted the greatest injury to it. Sir Arthur had been rewarded for his services by vast estates in the County Antrim. The fifth Earl and first Marquis of Donegall, already by the growth of Belfast and the fruit of other men’s labours, while he was sitting still, enormously rich, found his income still unequal to his yet more enormous expenditure. His name is looked for in vain among the nobles who, in return for high places, were found in the active service of their country. He was one of those habitual and splendid absentees who discharged his duties to the God who made him by magnificently doing as he would with his own. Many of his Antrim leases having fallen in simultaneously he demanded £100,000 in fines for the renewal of them. The tenants, all Protestants, offered the interest of the money in addition to the rent. It could not be. Speculative Belfast capitalists paid the fine and took the lands over the heads of the tenants to sub-let.

“Mr. Clotworthy Upton, another great Antrim proprietor, imitated the example, and at once the whole countryside were driven from their habitations. Sturdy Scots, who in five generations had reclaimed Antrim from the wilderness, saw the farms, which they and their fathers had made valuable, let by auction to the highest bidder; and, when they refused to submit themselves to robbery, saw them let to others, and let in many instances to Catholics, who would promise anything to recover their hold on the soil.

“The most substantial of the expelled tenantry gathered their effects together and sailed to join their countrymen in the New World, where the Scotch-Irish became known as the most bitter of the Secessionists.”

Mr. Froude traces to these evictions the uprise of the “Peep of Day” and the “Hearts of Steel” conspiracies, and adds:—

“It is rare that two private persons have power to create effects so considerable as to assist in dismembering an Empire and provoking a civil war. Lord Donegall, for his services, was rewarded with a marquisate; and Mr. Clotworthy Upton with a viscounty (Lord Templetown). If rewards were proportioned to deserts, a fitter retribution to both of them would have been forfeiture and Tower Hill....

“Throughout the revolted Colonies, and therefore probably in the first to begin the struggle, all evidence shows that the foremost, the most irreconcilable, the most determined in pushing the quarrel to the last extremity, were the Scotch-Irish, whom the Bishops and Lord Donegall and Co. had been pleased to drive out of Ulster.”

Mr. Lecky declares the outbreak “was mainly attributable to the oppression of a single man—the Marquis of Donegall.... The conduct of Lord Donegall brought the misery of the Ulster peasantry to a climax; and in a short time many thousands of ejected tenants, banded together under the name of Steelboys, were in arms.”

Their “formidable insurrection,” he says, caused “the great Protestant emigration” from Ulster to America. “In a few years the cloud of civil war, which was already gathering over the Colonies, burst; and the ejected tenants of Lord Donegall formed a large part of the revolutionary armies which severed the New World from the British Crown.”

Benn’s “History of Belfast” states:—

“An estate in the County Antrim, a part of the vast possessions of the Marquis of Donegall (an absentee), was proposed, when its leases had expired, to be let only to those who could pay large fines; and the agent of the marquis was said to have extracted large fees on his own account also. Numbers of the former tenants, neither able to pay the fines nor the rents demanded by those who, on payment of fines and fees, took leases over them, were dispossessed of their tenements and left without means of subsistence. Rendered thus desperate, they maimed the cattle of those who had taken the lands, committed other outrages, and, to express a firmness of resolution, styled themselves ‘Hearts of Steel.’ One of their number, charged with felony, was apprehended and confined in Belfast in order to be transmitted to the county gaol. Provided with offensive weapons, several thousands of the peasants proceeded to the town to rescue the prisoner, who was removed to the barrack and placed under a guard of soldiers (23rd December, 1770).... Being delivered up to his associates, they marched off in triumph.... So great and wide was the discontent that many thousands of Protestants emigrated from those parts of Ulster to America, where they soon appeared in arms against the British Government; and contributed powerfully, by their zeal and valour, to the separation of the American Colonies from the Crown of Great Britain.”

On the 6th April, 1772, George III. wrote to the Lord Lieutenant (Townshend):—

“His Majesty’s humanity was greatly affected by hearing your Excellency’s opinion that the disturbances owe their rise to private oppression, and that the over-greediness and harshness of landlords may be a means of depriving the kingdom of a number of his Majesty’s most industrious and valuable subjects. The King does not doubt but that your Excellency will endeavour, by every means in your power, to convince persons of property of their infatuation in this respect, and instil into them principles of equity and moderation, which, it is to be feared, can only apply an efficient remedy to the evil.”

In November, 1772, the Lord Lieutenant proclaimed a pardon to “the wicked and dangerous insurgents who in July, 1770, assembled themselves in arms in large numbers in the counties of Antrim, Down, Armagh, Derry, and Tyrone.” It was too late.

The Belfast “News Letter” of the 16th April, 1773, computed that “within forty years past 400,000 people have left this kingdom to go and settle in America.” In the three years from 1771 to 1773 alone, 101 ships left Ulster ports, carrying over 30,000 emigrants.

On the 15th June, 1773, John Wesley in his diary writes:

“When I came to Belfast I learned the real cause of the insurrection in this neighbourhood. Lord Donegall, the proprietor of almost the whole country, came hither to give his tenants new leases. But when they came they found two merchants of the town had taken their farms over their heads; so that multitudes of them, with their wives and children, were turned out to the wide world. It is no wonder that, as their lives were now bitter to them, they should fly out as they did. It is rather a wonder that they did not go much further; and, if they had, who would have been most in fault? Those who were without home, without money, without food for themselves and families, or those who drove them to this extremity?”

A dispatch to the “Irish Society” of the London Corporation in 1802 says of the Right Hon. Richard Jackson, a middleman of the London Clothworkers’ estate near Coleraine:—

“It is commonly reported in the country that, having been obliged to raise the rents of his tenants very considerably, in consequence of the large fine he paid, it produced an almost total emigration among them to America, and that they formed a principal part of that undisciplined body which brought about the surrender of the British Army at Saratoga.”

Unmoved by a riven empire, the Nero-like Marquises of Donegall, in unbroken succession, were quietly hatching out schemes to enforce the recognition of their Patent for the waters of Lough Neagh and the Bann.

CHAPTER XXVI.
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?

CHAPTER XXVII.
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.

CHAPTER XXVIII.
THE FINAL FORGERY.

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.”

CHAPTER XXIX.
THE LORDS DIVIDED.

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.”