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.