The great fraud of Ulster

by T. M. Healy

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.