Supreme Court.

1930. July, 8, 9, 14, 15, 16, 17, 21, 22, 23, 24.
1933. March 14, 15; July 31

[1934] I. R. 44


PAGES 44-65

PAGES 66-87

PAGES 88-109

A rare photograph of the Falls from early last century.
(With thanks to the Ballyshannon Enterprise Committee)
Courtesy of J. Ward.



    One of the most interesting modern cases in Irish law is (R) Moore v. Attorney-General [1934] I. R. 44. Here, the Supreme Court hears an appeal in a case regarding the fishing rights at the the Falls of Assaroe, Ballyshannon. The original case was R. (Moore) v. O'Hanrahan [1927] I.R. 406, wherein the owners of fishing rights in the tidal navigable waters of the Erne brought suit against defendants who had entered and denied that the plaintiffs could own such property, seeking a declaration of ownership and permanent injunction against further trespass. The district court was faced with the challenge of tracing the chain title back over the centuries, and examining it in relation to Magna Charta 1215, Brehon law, and various English statutes. Expert witnesses in Brehon law, D.A. Binchy and Eoin McNeill were called in to testify. Finally, the Court decided that the title belonged to the plaintiffs. However, when they subsequently brought suit against the Attorney-General personally to be reimbursed for legal fees, he appealed the case to the Supreme Court and it was reversed, and the property returned to the people of Ireland. The case gives a very detailed account of the history of English law in Ireland, and even though the case in the end turns on a decision of the House of Lords, that was not made available at the trial court level, the case stands as a monument to Brehon law, and affirms that it was indeed a leaving breathing system, not just in ancient times, but prevalent in the 17th century, and relevant up until today. The case, due to it's length, is divided here into 3 sections. The lower court case,R. (Moore) v. O'Hanrahan [1927] I.R. 406, will be available here soon.

    There are some interesting background materials available on the internet, relating to this case, the locale, and generally, the issue of ownership of conquered lands. A Home Page with an Irish Flavour © by J. Ward, is a very interesting site. On a page entitled The Falls of Assaroe, readers can participate in the campaign to restore the Falls of Assaroe. One way is to send an e-mail to the head of the Government of Ireland, An Taoiseach (i.e. Prime Minister). The site contains articles about the Moore case and other related issues in Usurped Donegal lands granted to Trinity College, Dublin, Trinity College and its Influence on Irish Law and The Bards of Ireland.


CELT Project Full Text

The Annals have enlightening references to the Erne, and the Irish princes, mentioned in the case, that lived and died beside it.



Gilla-Downey O'Howen, Official of Lough Erne, and Parson and Erenagh of Inis Caoin; Matthew Mac Gilla-Coisgle, Vicar of Claoin-inis; and Lucas Mac Scoloige, vicar of Achadh-Urchair, died.


An army was led by Turlough O'Donnell, Lord of Kinel-Connell, into Fermanagh, and he carried many boats with him to Lough Erne, and, landing on the islands and islets of the lake, he plundered and preyed them all, except the churches or sanctuaries; and he carried away immense spoils, and returned without opposition.


At this time Murtough Bacagh, the son of Donnell, son of Murtough [p.755]O'Conor, and the Mac Sweenys, were at Fassa Coille, together with the Western O'Hara, and the descendants of Flaherty O'Rourke; and they all set out early in the morning to Bun-Brenoige, opposite Lissadill, to attack the sons of Cathal Oge and O'Donnell. Squadrons of the cavalry of the sons of Cathal Oge advanced towards them the party of Murtough Bacach, on the way to Sligo; but the stream of Bun-Brenoige lay on one side of them, and, luckily and favourably for them, the sea had flowed on the other side, so that they could not be encompassed or surrounded. They afterwards came to a brisk engagement with each other, in which O'Donnell and the sons of Cathal Oge were defeated, and Marcus Mac Donnell, and Dugald his son, John Mac Sheely, and a great many others of their gallowglasses, were slain. Great ravages and depredations were then committed on the sons of Cathal; and they were again banished across the River Erne, in sadness and dejection, precisely on the Great Festival of the Blessed Virgin Mary.



A great war broke out between the Kinel-Owen and the Kinel-Connell; and O'Donnell (Niall Garv, the son of Turlough an Fhina) marched with his forces into Duibhthrian to assist Mac Quillin. O'Neill, i.e. Owen, set out with a great army in pursuit of O'Donnell and Mac Quillin; and Mac Donnell of Scotland arrived at the same time with a large fleet, and went to where O'Neill was, to aid him. The Scots proceeded to attack the creaghts of Mac Quillin and of Robert Savadge, worsted them, and caused great slaughter and loss of men upon Mac Quillin and Robert; and those that made their escape from the territory of Duibhthrian were almost all cut off at the Pass of Newcastle.


O'Neill, Henry his son, and Mac Donnell, afterwards went to Ardglas, which they burned; and Mac Donnell and his Scots afterwards went in their ships from Ardglas to Inishowen, while O'Neill marched by land to meet them, with intent to plunder Tirconnell. Naghtan O'Donnell and the daughter of O'Conor Faly, the wife of O'Donnell, and the sons of the chieftains of Tirconnell, repaired to Inishowen to meet them; and they made peace with O'Neill, without leave from O'Donnell.


In the meanwhile O'Donnell and Mac Quillin went to the English of Meath, to make a treaty of alliance and friendship with them and the deputy of the King of England. They led a great army to Machaire-Ardamacha, and the English attacked the monastery, but afterwards returned without gaining any strength by that expedition. O'Donnell then proceeded round through Meath, west to Athlone, from thence into Hy-Many, and afterwards across Machaire Chonnacht, to Mac Dermot of Moylurg and O'Rourke (Teige, son of Tiernan). O'Rourke went with him over the River Erne; and O'Neill and Maguire came to Cael Uisge to meet O'Donnell; and they concluded a charitable peace with one another. The English of Machaire Oirghiall entertained Mac Quillin among them, after he had been banished by O'Neill.


O'Neill proceeded with an army into Fermanagh, and pitched his camp at Craev-Ua-bh-Fuadachain, where he remained three nights and days. The inhabitants of Fermanagh sent their cattle and all their moveables westward across Lough Erne; and it was not in boats that they conveyed them, but over the ice, which was then so great that steeds and horses carrying burdens were wont to cross the lake upon it. Maguire mustered an army to oppose O'Neill, but afterwards made peace with him, and joined him. O'Neill then proceeded with his forces into Tirconnell, burned and plundered a great part of it, and slew John, the son of Donnell, by a shot of a javelin, and then returned home in triumph.


    Thomas Henry Huxley, President of the Royal Society in the late 19th Century, seemed to predict the Moore case in a very uncanny way. In his essay On The Natural Inequality of Men (January 1890). More information on him is available at the huge site The Huxley File, which contains over 1,000 documents relating to him and his writing. The following are exercepts from his essay discussing ancient property rights and the natural state of man in relation to Rousseau. The following are exerpts from the essay:

Very curious cases of communal organisation and difficult questions involving the whole subject of the rights of property come before those whose duty it is to acquaint themselves with the condition of either sea or freshwater fisheries, or with the administration of Fishery Laws. For a number of years it was my fate to discharge such duties to the best of my ability; and, in doing so, I was brought face to face with the problem of landownership and the difficulties which arise out of the conflicting claims of commoners and owners in severalty. And I had good reason to know that mistaken theories on these subjects are very liable to be translated into illegal actions.

The thesis of the earlier work is that man, in the "state of nature," was a very excellent creature indeed, strong, healthy, good and contented; and that all the evils which have befallen him, such as feebleness, sickness, wickedness, and misery, result from his having forsaken the "state of nature" for the "state of civilisation." And the first step in this downward progress was the setting up of rights of several property. It might seem to a plain man that the argument here turns on a matter of fact: if it is not historically true that men were once in this "state of nature"-what becomes of it all? However, Rousseau tells us, in the preface to the "Discours," not only that the "state of nature" is something which no longer exists, but that "perhaps it never existed, and probably never will exist." Yet it is something "of which it is nevertheless necessary to have accurate notions in order to judge our present condition rightly."[298]

However, the question whether the fact that property in land was originally acquired by force invalidates all subsequent dealings in that property so completely, that no lapse of time, no formal legalisation, no passing from hand to hand by free contract through an endless series of owners, can extinguish the right of the nation to take it away by force from the latest proprietor, has rather an academic than a practical interest, so long as the evidence that landed ownership did so arise is wanting. Potent an organon as the a priori method may be, its employment in the region of history has rarely been found to yield satisfactory results; and, in this particular case, the confident assertions that land was originally held in common by the whole nation, and that it has been con[321]verted into severalty by force, as the outcome of the military spirit rather than by the consent, or contract, characteristic of industrialism, are singularly ill-founded.

Let us see what genuine history has to say to these assertions. Perhaps it might have been pardonable in Rousseau to propound such a statement as that the primitive landowner was either a robber or a cheat; but, in the course of the century and a half which has elapsed since he wrote, and especially in that of the last fifty years, an immense amount of information on the subject of ancient land-tenure has come to light; so that it is no longer pardonable, in any one, to content himself with Rousseau's ignorance. Even a superficial glance over the results of modern investigations into anthropology, archæology, ancient law and ancient religion, suffices to show that there is not a particle of evidence that men ever existed in Rousseau's state of nature, and that there are very strong reasons for thinking that they never could have done so, and never will do so.

Fourthly, Sir Henry Maine has proved in a very striking manner, from the collection of the Brehon Laws of ancient Ireland, how the original communal landownership of the sept, with the allotment of an extra allowance of pasture to the chief, as the honorarium for his services of all [333] kinds, became modified, in consequence of the power of keeping more cattle than the rest of the sept, thus conferred on the chief. He became a lender of cattle at a high rate of interest to his more needy sept-fellows, who when they borrowed became bound to do him service in other ways and lost status by falling into the position of his debtors. Hence the chief gradually acquired the characteristics of what naturalists have called "synthetic" and "prophetic" types, combining the features of the modern gombeen-man with those of the modern rack-renting landlord, who is commonly supposed to be a purely imported Norman or Saxon product, saturated with the very spirit of industrialism-namely, the determination to get the highest price for an article which is to be had. As a fact, the condition of the native Irish, under their own chiefs, was as bad in Queen Elizabeth's time as it has ever been since. Again, the status of the original commoners of the sept was steadily altered for the worse by the privilege which the chief possessed, and of which he freely availed himself, of settling on the waste land of the commune such broken vagabonds of other tribes as sought his patronage and protection, and who became absolutely dependent upon him. Thus, without war and without any necessity for force or fraud (though doubtless there was an adventitious abundance of both), the communal system was bound to go to pieces, and [334] to be replaced by individual ownership, in consequence of the operation of purely industrial causes. That is to say, in consequence of the many commercial advantages of individual ownership over communal ownership; which became more and more marked exactly in proportion as territory became more fully occupied, security of possession increased, and the chances of the success of individual enterprise and skill as against routine, in an industrial occupation, became greater and greater.


    One of the main issues discussed was the provision in Magna Charta prohibiting several fisheries in tidal navigable waters. The Court examined whether the Magna Charta was in effect in Donegal, and found that it did not come into effect until the 17th century in that part of the country. This site is dedicated to exploring the link between Irish and Englsih law found in the Magna Charta. We have reprinted the Magna Charta Hiberniae, and provide essays and links relating to the Great Charter in general. There is evidence to suggest that the original document was influenced by Brehon law, and we hope to explore this issue in depth.


Assaroe Restoration Campaign, readers can participate in the campaign to restore the Falls of Assaroe. One way is to send an e-mail to the head of the Government of Ireland, An Taoiseach (i.e. Prime Minister).

A Home Page with an Irish Flavour by J. Ward

Eel Fishing Regulations

National watersports centre to be built on banks of the Erne at Ballyshannon

Dept. of Agriculture/Environmental Change Network: Lough Erne.

Belturbit. A market town on the east bank of the River Erne, midway between the waters of Lough Oughter and Upper Lough Erne, Belturbet is an ideal coarse fishing centre.

Oifig na nOibreacha Poiblí, The Office of Public Works. (Annual Report, Engineering Services)

Salmon Fly Dressing, A Brief History.

Belleek. On the banks of the River Erne, set right in the heart of the Fermanagh lakeland, lies Belleek, home of Ireland's oldest pottery. For more than 141 years this little village has been famous for its distinctive parian china. Today, as ever, Belleek holds a special place in the hearts of china collectors the world over.



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