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.”