The great fraud of UlsterHealy, T. M. (Timothy Michael)
History
The great fraud of Ulster
Healy, T. M. (Timothy Michael)
Ireland -- History -- 17th century; Ulster (Northern Ireland and Ireland) -- History
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.
Public-domain text, read in full here on John Shaqi.
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