The great fraud of Ulster

by T. M. Healy

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.