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
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.”
Public-domain text, read in full here on John Shaqi.
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