Rathmullen. For this Inquisition, taken in 1603, is based upon the view then prevalent and expounded in Davies' Reports. At that time the Crown, ignoring the provisions of Magna Charta, claimed the provisions in tidal waters by virtue of the royal prerogative. The infirmity of this claim is now recognised, but the possession which has endured under a Crown grant based upon it must suffer somewhat from the same infirmity. Another serious difficulty in the way of the plaintiffs on this point is that Tirconnaill was not subject to English law for about four hundred years after 1189. The appropriation into private hands of fishing in tidal waters is part of the feudal system introduced into England by the Normans. No such right was recognised in Roman law, under which fishing such waters was considered to be iuris publici. This is noted by Sir John Davies, The Case of the Royal Fishery of the Banne (1), at p. 150, where he refers to the rule of civil law "that Flumina et portus publica sunt, ideoque jus piscandi omnibus commune est in portu fluminibusque, which rule is found in Bracton, lib. 2, cap. 12." (In Bracton, Totell's edition, 1569, Fol. 8 r.) In Tirconnaill, during the period we are considering, the Brehon law was in force--that is from the year 1189 until the introduction of English law. The material point, therefore, is to determine whether under the Brehon law an appropriation of the fishing in tidal waters was possible, because if such an appropriation was not possible, it makes it extremely improbable that an appropriation did in fact take place contrary to the recognized law. The plaintiffs seek to establish that during the period whilst Tirconnaill was subject to Brehon law the several fishery in the tidal portion of the Erne was appropriated as the private property of the ruling princes of the House of O'Donnell and the princes of the ruling family prior to the accession of the O'Donnell to the rank of prince. In support of this argument they refer to an Exchequer Inquisition, 26th November, 1588, held to ascertain the property of dissolved abbeys. This inquisition finds :-- "There is a certain abbey monastery or house of monks of the Order of Saint Bernard in the town of Asseroe near Bealashennon in the County of Downegall," and they (the jurors) "say that the Abbot and Convent of the Abbey aforesaid had in right of their abbey or house aforesaid liberty for two fishermen to fish for salmon in the place of the stream or river called the Erne which is
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called Asseroe near Bealashennon every year during times in which salmon are caught. And the second cast or draught (in English the second draught) of all the fishermen at Asseroe when they begin to fish and liberty for one skiff for fishing for salmon or other fish from the island up to the sea below which fishing is of the yearly value of three shillings and four pence sterling money of England aforesaid which premises are temporalities of the abbey aforesaid in the said County of Downegall." This Abbey, it should be observed, did not enjoy the several fishery claimed by the plaintiffs, but the suggestion is that, as the owner of a several fishery in English law could create somewhat similar rights by grant out of his several fishery, the proper inference is that the rights of the Abbey were created by the owner of a several fishery. This argument, however, is not of any value unless it can be shown that by the Brehon law as by the law of England a several fishery might exist in tidal waters. The Abbey of Asseroe was founded as early as 1184 by Flaherty O'Muldory--some writers say in 1178 by Rory O'Canacan--and we think it would justifiable to infer that the Abbey rights of fishing existed from the foundation of the monastery and accordingly prior to the year 1189. Most of the monasteries sought to acquire fishing rights of some description, and these rights are mentioned in various charters and grants which were given in evidence. King John, on 1st April, 1203, confirmed to the monks of Mellifont the fishery in the water of Buni (The Boyne) the grant which he made while he was Count of Moreton. Hervey de Monte Morisco founded the monastery of St. Mary of Dunbrothy, and by grant, dated 1175, gave lands with fishings in pools to the monastery for the benefit of the monks. In 1177 John de Curci granted to the monastery of Neddrum lands and fisheries--but all these grants were made by Normans in accordance with their own laws. Ferns abbey was founded about the year 1150 by Dermott, King of the Leinstermen. The grant, which included lands and fisheries, was made by the counsel and assent of his princes and magnates. The Abbey of St. Mary Newry in 1159 obtained a charter from Maurice MacLochlain with the unanimous will and general consent of the nobles of Ultonia and Ergallia. It will be at once seen that all of these grants which were not made by Normans are more like legislative enactments than gifts by the private owner of a general fishery. One Inquisition, taken at Donegal 13th September, 1603, makes mention of a religious house at Cloneigh, near Lifford, and states that the inhabitants of the college |
lands were wont from time to time to fish in them and upon the river aforesaid by the license of Lord O'Donnell for that purpose obtained with one small skiff (in English a cott) by night only at the ebb of the river (in English the ebb water). The Franciscan Monastery at Donegal was founded in 1474 and it is recorded that Hugh Roe O'Donnell gave the friars a perpetual right to fish for salmon. Both these records were altogether indefinite on the point which it is material to ascertain--viz. whether The O'Donnell had the exclusive right of fishing in the places referred to, while they may be explained as meaning that The O'Donnell was instrumental in securing the privilege for the monks in whatever might have been the form required at the time and place in question. On the other hand, Professor McNeill and Professor Binchy gave detailed evidence showing that in the Brehon law an exclusive right of fishing in tidal waters was not recognised. Professor McNeill pointed out that in the "Ancient Laws of Ireland," Vol. V., at p. 483, among the things which are specified as the full property of every Tuath (kingdom) belonging in equal right to every condition of persons are the salmon of the place. According to the commentary "one killing of it is lawful." It is perfectly clear that, as in Roman law, the right of fishing was publici juris, so in Brehon law the right for fishing for salmon was vested in the inhabitants of the Tuath and an effort was made to secure equality for all by allowing each person to take one salmon. It has also been explained by Professor McNeill that, as the monks who founded the monasteries usually came from outside the Tuath, they required a kind of legislative sanction to partake of the rights belonging to the inhabitants. In fact the Abbey of Asseroe was derived through Boyle from Mellifont. Mr. Justice Johnston arrived at the conclusion that the texts stating the Brehon law were composed in the eight century and he was not satisfied that the law remained the same until the twelfth century, at which time he thought the ownership of a several fishery may well have been established ; and, further, he regarded the texts of the Brehon law rather as an attempt to lay down regulations of an eleemosynary or charitable character and not as a statement of proprietorial rights, whether of a corporeal or incorporeal character. Lawyers are so much dominated by the issues of the system which they administer, that it is difficult to enter into the atmosphere of a code of law alien to that to which they are accustomed. What we call the feudal system |
was an integral part of the law administered by the Normans in England--and it may have to some extent developed in England prior to the advent of the Norman conquerors. Mr. Justice Willes, in his opinion to the House of Lords in Malcomson v. O'Dea (1) said: "There is no improbability in the early appropriation of this always valuable property, or even a more extensive fishery, either in the time of the Irish princes, or in that of the Ostmen, who in this [Limerick] and other ports displaced the ancient inhabitants, and who no doubt gave the name of Law Wear (Leax Waer, or Lachs Wehr) to the chief accessory of the fishery, or by Henry II in his grant to the companion of Strongbow." We do not think that this expression of opinion can be transferred to the land of Tirconnaill, where, according to the evidence, the Brehon law continued to be in force until it was extirpated in the sixteenth century by the introduction of English law. The plaintiffs did not attempt to prove that a several fishery or anything equivalent to it was recognized by the Brehon law. It is impossible to recapitulate at length all the evidence given, but we are clearly of opinion that the Brehon law of the twelfth century did not incorporate the feudal notion of the ownership of fishing in tidal waters. Tirconnaill was removed from contiguity with the feudal law of the Norman invaders of Ireland, and it is, we believe, contrary both to historical fact and to legal possibility that in the time of Henry II the fishings in the tidal portion of the river Erne were appropriated into the possession of Flaherty O'Muldory or any native prince who reigned before the advent of the family of O'Donnell in the year 1202. It is pointed out in the evidence that in the sixteenth century, when the chiefs began to accept grants and confirmations of their lands from the English, English legal ideas began to prevail in such grants although English law was not at the time fully intorduced into Tirconnaill. In 1565 Calvert O'Donnell surrendered to the Queen "all regal services and rights in Connalia" (2). Possibly he accepted a grant from the Queen of the territory, because in the grant made in 1600-01 to Neal Garrowe O'Donnell (3) the custody of the county is given to him as granted to Calvert O'Donnell except, inter alia, "the fishings of the Earne." This dealing with the fishery is on the same plane as the Inquisition of Rathmullan, and it appears to have been treated as a
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royal right rather than private property of The O'Donnell under the Brehon law. Mention is made in an Inquisition taken at Ballyshannon in 1623 of one weir for catching ells called "O'Donnell's weare" with the appurtenances in the river Erne. This is the only reference in the documents to the O'Donnells in connection with the fisheries and it is limited to one weir for catching eels. The conclusion that no title existed in the O'Donnells to the fishings in the river Erne is made clear by the Inquisition at Rathmullan. No one thought of seeking a title in the Crown through the possession of any private individual because this notion was contrary to the law as conceived at the time. If fishing in al tidal and navigable rivers belonged to the Crown by the royal prerogative, no private right could exist except by grant from the Crown and it was not necessary for the Crown to seek its title through a private title in The O'Donnell. In the grant to Neal Harrowe O'Donnell and in the Inquisition of Rathmullan the fishings in question were dealt with as regalities of the Crown. In the earliest document dealing with the fishery as a private several fishery--the lease from King James to John Binglie for 21 years from the 14th October, 1603--the Kings titles was based on the statement that the fishing was "parcell of the Kings Majesties auntient inheritaunce." In the Inquisition of Lifford, 21st March, 18 Jac. (1620), the fishing is described as "a Royall salmon fyshings in the sea . . . where it doth ebbe and flowe" in the precise words used Davies' Reports. We look in vain for any reference to a several fishery in private hands which had come to the King. If any such several fishery in private hands had come to the King it would have been found, like property belonging to the dissolved monasteries, to have come to the King. In the legal view prevalent the royal salmon fishery belonged to the King and it could not belong to a subject except by grant from the King. In our opinion the plaintiffs are not entitled to an ancient fishery appropriated to private ownership prior to Magna Charta. Their title, however, under the statutes of Charles I remains to be considered. By Letters Patent bearing date 30th of August, 15 Car. I, Thomas, Lord ffolliott, obtained a grant of very extensive tracts of land and also of the several fisheries, the subject-matter of this action. This grant is recited to have been made "according to the intention and effect of our Commission under our Great Seal of England bearing date at |
Canterbury in our said Kingdom of England on the first day of September in the fourteenth year of our reign." Among the numerous granted by the Letters Patent we find the rights formerly attached to the Abbey of Assaroe and the several fishery with which we are dealing is granted in the words following :--"And also all the Creek bay or river of Beallashenny otherwise Ballyshannon, viz. :--from the high sea to the rock in English 'the rocks or waterfall' commonly called the Salmon Leaps otherwise the fall of Asheroe near the Castle of Ballyshanny aforesaid And also all the aforesaid rock or salmon leap or fall of Asheroe with the appurtenances And also all and singular loughs weirs islands rocks in English 'Rockes' and waterfall in within or near the aforesaid Bay creek and river of Ballyshanny otherwise Ballyshannon aforesaid And all the bottom soil land and water of the aforesaid creek bay or river and all land covered and to be covered with water there and also the whole fishing and liberty of fishing and to fish for and catch salmon and all other kinds of fish whatsoever in or within the aforesaid creek bay and river aforesaid and on the rocks aforesaid And also a weir for catching eels commonly called O'Donnell's 'Weare' with the appurtenances in the river of Earne And also the liberty for having nets and other instruments necessary for fishing on the rocks creeks river and bay aforesaid And also the liberty of carrying off all fish and catch of fish of every kind from the aforesaid rocks in English 'rockes' creeks rivers or bays or from any part thereof with all other liberties privileges advantages and emouluments whatever of whatever quality to the premises or any part thereof belonging or appertaining in the aforesaid counties of Donegall Sligoe and ffermanagh or any of them." This grant undoubtedly in terms includes the several fishery in question but on account of the provisions of Magna Charta it, standing alone, would have no legal effect. The plaintiffs, however, strongly urge that by reason of the several statutes passed in the reign of Charles I the grant so made under the King's Commission by Letters Patent was given statutory confirmation and that it is valid notwithstanding the provisions of Magna Charta. This grant by Letters Patent to Thomas, Baron ffolliott, was mentioned in paragraph 10 of the statement of claim merely as a link in the plaintiffs' title, but by an amended statement of claim delivered on 12th July, 1928, during the course of the trial the plaintiffs pleaded that the hereditaments and premises granted as aforesaid under |
the Letters Patent were plantation lands in the said counties of Donegal and Fermanagh within the meaning of 10 Car. I, sess. 3, cap. 3, and that the grant under the Letters Patent was good and valid as well against the King's most excellent Majesty, his heirs and successors, including the Irish Free State, as against all and every other person or persons whatsoever." By a further and alternative amendment the plaintiffs alleged 'that the said hereditaments and premises so granted . . . lay within the plantations mentioned in the statute, 15 Car. I, c. 6, section 1, and that by virtue of section 1 of the said statute the Letters Patent were good, sufficient, effectual, and indefeasible to all intents, constructions and purposes as well against His Majesty King Charles I, his heirs and successors , including the Irish Free State, as against all and every other person and persons whatsoever." And the plea went on to allege "that the date of the said Letters Patent His Majesty King Charles I was by sect. 1 of the said statute, 10 Car. I. Sess. 3, cap. 3, and by sect. 2. of the said statute, 15 Car. I, cap 6, absolutely and indefeasibly entitled to the said hereditaments expressed to be granted by the said Letters Patent in right of his Imperial crown." The Letters Patent include, as well as the several fishery the subject-matter of this action, a very great number of denominations of land in the counties of Donegal, Fermanagh, Sligo and Leitrim which are all set out with great particularity, but the substance of the allegation is that the several fisheries granted were "plantation lands" under 10 Car. I, sess. 3, cap. 6, s. 1. The Attorney-General contends that the fisheries in question were not "plantation lands" and did not "lay within the plantations" mentioned, and he further contends that the statutes referred to did not intend to repeal the provisions of Magna Charta. A great amount of minute historical investigation was directed to the point whether the several fisheries in question were "plantation lands," but before approaching this question it is necessary to deal with an argument based upon the proper construction of the statutes referred to. This argument is that all lands and hereditaments situate in the counties of Donegal and Fermanagh, as well as other counties named in the statutes, were declared to be plantation lands. If this construction were held to be the proper one no question of fact would remain open on this point. In the construction of these statutes we have derived much help from the arguments of counsel, not |
only at the hearing of the appeal, but also at a subsequent argument limited to this point which we have set down. These statutes do not appear to have been judicially construed in any reported case and we desired on account of the importance of the matter to give them the fullest consideration. The importance of the point raised is apparent as it affects not only the plaintiffs but also every grantee under similar grants in the several counties named. In approaching the consideration of these statutes it is necessary to keep in mind the causes which led up to their enactment. From the recitals contained in 10 Car. I, cap. 3, we can learn that owners of land and their titles drawn in question on widely different grounds. In some cases no grant from the crown could be pointed to, and in other cases where Crown grants did exist objection was taken to the validity of the grants ; while in the case of plantation lands it might also be contended that the lands had been forfeited to the crown by reason of failure to observe the conditions of the plantation. By way of remedy for this state of affairs the Crown made fresh grants and in doing so seized the opportunity of increasing its revenues ; while the owners desired parliamentary confirmation of the grants so obtained. The first statute, 10 Car. I, cap. 3, styled "An Act for confirming of Letters Patent hereafter to be past upon His Majesties commission of grace for the remedy of defective titles," bound the King but expressly saved the rights of others. The matters so intended to be dealt with were more fully provided for in an Act, 10 Car. I, sess. 3, cap 3, was passed at the same time for securing of the estates of the undertakers, servitors, natives and others holding in all and every the plantations made in the several counties specified. This is the first of the statutes relied upon in the statement of claim and we will quote the material passage upon which the argument is founded. After an elaborate recital it is enacted : "That Your Majesty your heirs and successors shall be rightly and by good lawful and indefeasable title and estate in fee simple deemed and adjudged to be in the actuall and reall possession and seizin in right of your imperial crown of England and Ireland of all the castles mannors lands tenements and hereditaments lying and being in the said severall counties of Tyrone, Armagh, Donegall, Fermanagh, Cavan, Londonderry, Leytrim and Longford and of and in the several territories precincts and counties commonly known or called by the name or names of Ely O'Carroll |
alias O'Carrolls countrey" [Then follow similar territories] "and also of and in the several townes or village lands tenements and heriditaments known esteemed or usually called plantation lands in or neere the territory or county of Clincol-man alias O'Melaghlins countrey" (and several territories are then similarly then described) "and also of and in all the castles mannors lands tenements ad heraditaments in the severall counties of Waterford, Corke, Limericke, Kerry and Tipperary aforesaid usually called plantation land or heretofore passed or mentioned to be passed by letters patent to any British undertaker or undertakers respectively as plantation lands, at such time or times whensoever any of the aforementioned castles mannors lands tenements and hereditaments shall be within the space of five years next ensuing the end of this present session of Parliament new passed granted or confirmed to any person or persons bodies politique or corporate respectively , by letters patent under the greate seale of this Kingdom by warrant of the lord deputy for the time being and commissioners nominated or to be nominated in and by his Majestie's commission of grace for the remedy of defective titles now in being or hereafter to be, being former patentees or proprietors or reputed patentees or reputed proprietors or such as by former distribution assignation or appointment have taken the profits thereof their heirs or assignees respectively." This language although prolix is not involved and it is clear that the castles, mannors, lands, tenements and hereditaments in the counties first mentioned are indicated by an earlier recital. This recital runs :--"That whereas for the better government and security of this Your Kingdom of Ireland sundry plantations have at severall times been made in the severall counties of Waterford, Corke, Limericke, Kerry, Tipperary, Wexford, Wickleloe, King's County, Queen's County, Westmeath, Leitrim, Longford, Tyrone, Armagh, Donegall, Farmanagh, Cavan and Londonderry, grounded as well upon ancient as well as recent title of your Crown declared as well by inquisitions as other records and evidences ; upon all which divers patents have been passed, and thereby very many undertakers and others of British birth and very many of the natives of best quality and condition have been there planted and settled and severall lands, tenements and hereditaments granted and disposed to corporations forts uncumbents of churches schooles and other good uses." The reading of this statute contended for by the plaintiffs is that all lands, tenements and hereditaments in the counties mentioned are by it declared plantation lands |
irrespective of whether they were granted in pursuance of the scheme of plantation referred to. But the literal reading of the section is not a notional vesting of the estate passed by the New Letters Patent (in lieu of the previous grant) at the date of the making of the new Letters Patent. Further, it seems to us that the aim and purpose of this Act is shown by the recital immediately preceding the enacting words above quoted :--"And whereas it hath pleased your most excellent Majestie by your principall officers and ministers here to make known that for the better encouragement of your said subjects to proceede cheerfully in their intended course of planting and civilizing the said severall planted counties and settling a good and happy commonwealth among them Your Majesty would be graciously pleased to grant unto them in the said plantations should by all convenient means be secured." The estates intended unto them in the said plantations must necessarily be estates given by plantation grants. Grants were made by the Crown of lands and other hereditaments during the years anterior to the plantation in the counties named. The construction which we are asked to place on this statute is that such grants, although not in fact plantation grants, were declared to be plantation grants. In our opinion the title of the Act itself, all the recitals and the enacting words themselves are directly opposed to any such construction. The Act deals with plantation grants and deems the Kinfg to be in actual seisin of . . . all lands . . . in the county of Donegal . . . at the date whensoever any of the same should be granted to any person or persons, "being former patentees or proprietors or reputed patentees or reputed proprietors or such as by former distribution assignation or apportionment have taken the profits thereof." In reciting the plantation the statute has already used the words "u[on all which divers patents have been passed . . . some other parcells of said lands being onely distributed and assigned and not passed by reason of restraints for some years past." To our minds it is clear that the new grants under the statute are to be made to the persons who obtained the lands under the scheme of the plantation, and that persons who did not obtain lands under the plantations were governed by the statute 10 Car. I, sess. 3, cap. 2, immediately proceeding. Another statute of comprehensive character was passed |
in 15 Car. I. This statute, 15 Car. I, cap. 6, "An Act for strengthening of letters patents past and to be past upon any of his Majesty's commissions of grace for the remedy of defective titles," became necessary by reason of the fact that the period of five years mentioned in 10 Car. I, sess. 3, cap. 3, was coming to an end. By this statute all Letters Patent past or thereafter to be past upon any of His Majesteies commissions of grace for the remedy of defective titles were to be "deemed and adjudged to be good sufficient effectuall and indefeazable to all intents constructions and purposes"--in the words of the statute--"in manner following (that is to say) for and concerning all and every the lands liberties franchises immunities and other hereditaments and premises whatsoever lying or being within every or any of the late plantations within this kingdom made by our late soverign lady Queen Elizabeth, our late most gracious lord King James and made or to be made by the King's most excellent Majesty that now is or by any of them as well against his Majesty, his heirs, successors as against all and every other person and persons bodies politik and corporate as well spiritual as temporal whatsoever : and for and concerning all the rest of the premisses against His Majesty, his heirs and successors onely, , notwithstanding any defect whatsoever or any statute ordinance or law cause matter or thing which might or may any way impeach infeeble avoid or destroy any of the said lettes patents in all or any point or points whatsoever." This statute in its express terms deals with the two subject-matters dealt with separately in the previous statutes or lands, etc., lying or being within the plantations, and other lands, etc., which cannot be so described. It proceeds to enact that the grantees "shall and thenceforth peaceably and quietly have hold possess and enjoy all and singular and every the lands tenements hereditaments and other the premises lying or being within all and every or any of the plantations aforesaid and specified or mentio9ned in any of the said letters patents to have been granted or hereafter to be granted or mentioned to be granted as aforesaid as well as against His Majesty his heirs and successors as against all and every other person and persons bodies politik and incorporate spiritual and temporal whatsoever and all other the lands tenements hereditaments and premisses mentioned to have been granted or hereafter to be granted or mentioned to be granted in any of the said letters patents as aforesaid onely against His Majesty his heirs and successors . . ." Sect. 2 of this |
statute, which was strongly relied upon on behalf of the plaintiffs, is framed substantially in the same way as the corresponding passages already cited from the latter portion of 10 Car. I, sess. 3, cap. 3. This sect. 2 enacts: "That His said Majesty his heirs and successors respectively be and shall be deemed adjudged seised and vested in the actual and real seisin and possession of a good lawful indefeazable and absolute estate to him or them his or their heirs and successors in right of his or their heirs and successors in right or his and their imperial crown of and in all and singular and every the castles honours mannors towns villages hamlets lands tenements and hereditaments situate lying or being in the several counties of Tyrone, Ardmagh, Donegal, Fermanagh, Cavan, Leitrim and Longford ; and likewise of all the several territories precincts of land and countries commonly known or called by the names or names of Ely O'Carrol alias O'Carrols country" (then follow a number of other territories similarly described) "and also of all the severall towns villages hamlets lands tenements and hereditaments known esteemed reputed or usually called plantation lands in or neere the territories or countries of Cloncolman alias O'Melaghlin's country in the county of Westmeath ; and in or near the territory or country of Faran O'Neal in or near the county of Wexford ; and of and in the towns and lands of Tourboy in or near the territory of Ranelagh aforesaid ; and also of all the singular the castles honours mannors towns villages hamlets lands tenements and hereditaments in the several counties of Waterford, Cork, Limerick, Kerry, and Typerary usually called or reputed as plantation lands or heretofore past or mentioned to have been past by letters patents to any British undertaker or undertakers by birth blood or descent their heirs or assigns respectively as plantation lands , at every such time and times respectively as plantation lands, at every such time and times respectively whensoever any of the beforementioned castles honours mannors towns villages hamlets lands tenements and hereditaments shall be within the space of five years next ensuing the end of this present session of Parliament new passed granted confirmed released or assured or mentioned to be new passed granted confirmed released or assured to any person or persons bodies politick or incorporate spirituall or temporall respectively, by letters patents under the great seale of this kingdom by virtue of pretence of or reference unto any such commissions of grace now being or hereafter to be within his realme being either former patentees or reputed inheritors or proprietors or by former assignation distribution or appointment have taken the profits thereof . . . " The words here used are |
practically a repetitoin of those employed in 10 Car. I, sess. 3, cap. 3, in which statute, as we have said, the recital make it abundantly clear that the grants intended to be made defeasable as well against the Crown, as against all other persons were grants made in persuance of the scheme of plantation. The main operative words in sect. I give the infeasible title against all persons in respect of lands etc. in the counties mentioned are to be deemed to be in the actual seisin of the Crown at the date when the new Letters Patent under the commissions of grace may have been or may be issued within five years following granting to the former grantees of plantation lands in these counties the same lands under a fresh grant. It is, in our opinion, impossible to extract from this section a declaration that all the lands etc. in the counties named shall be deemed to be within the plantations whether they were so in fact or not. To support any such view the letters patent granted under the commission of grace would be good against the Crown and all persons whatsoever if made to a person who had not obtained a plantation grant ; but under the statute the grant should be made to a former patentee or reputed inheritor or proprietor or to one who by former assignation, distribution or appointment 'had taken the profits thereof, the very words which in 10 Car. I, sess. 3, cap. 3, are used in reference to persons who took under plantation grants. For these reasons, in our opinion, there is no statutory declaration that all lands granted in the counties named are grants of lands etc., lying or being within the plantations. No court, so far as we are aware, has ever construed the statute in this sense in this sense and we do not this construction the correct one. Accordingly, it remains to be determined as a matter of fact whether the several fishery claimed by the plaintiffs can be said to be "plantation lands" or lay within the plantations as alleged in the statement of claim. The documents given in evidence show the dealings with the several fishery subsequent to the Inquisition of Rathmullan which found under the law as then administered the fisheries to be part of the regalities of the Crown. Mr. Justice Johnston remarked that the documents were not easy to reconcile but we think they are consistent and show very clearly the legal dealings. On October 14th, 1603, a lease was made by the Crown to John Binglie for 21 years at a rent of 40s. of which 10s. was in respect of |
the rivers of Donegall and Caelbeg and 30s. in respect of the fishings in Lougherne and Bondrois. A certified copy of this lease from the Patent Rolls I Jac. I, part 2, was given in evidence. In the Crown Rental, Ireland, 1613, mention is made of a rent of 40s. due from John Binglie, "gent" farmer of the whole regalities of the fishings and the fishings of the bays ports havens creeks rivers floudes and streams of Dunegall and Caelbegg And also of the whole fishing and catching of fish of the lakes pools rivers and streams called Lougherne of every kind of fish there being And also of the whole fishing for and catching of salmon and herrings and all other fish in the ports creeks bayes and streams of Ballishannon and Boundwise with all other places bayes ports havens and creeks next adjacent in which fish were wont to be caught yearly." This lease is noted to be supposed to be a double chardy and it is also noted that Sir Henry ffolliott was assignee of John Binglie. The date of the assignment from John Binglie to Sir Henry ffolliott is not mentioned but in the Inquisition of Donegal held 21st of March, 1621 : 18 Jacobi I, it is stated ffolliott had been in posession for over sixteen years. Sir Henry ffolliott obtained a lease for 21 years from 7th June, 1606, of the fishing rights formerly attached to the Abbey of Assaroe, as well as the fishings in the Binglie lease, and again for 20 years from 6th July, 1607. Twenty-one years was the longest term which the Commission was empowered to grant. On 20th July 1609, Sir Arthur Chichester, Deputy General, in pursuance of the King's letter, dated 29th November, 1608, made a grant to Mary, Baroness Delvin, and Sir Richard Nugent, her son, of lands in many parts of Ireland. One of the subject-matters granted was the fishing and liberty of fishing and the catching of salmon and all other kinds of fish whatsoever in or with the creek bay river stream or pool of Ballishannon. This grant includes the rents and profits of all and singular the premises above by the same presents given. In respect of the several fishery so granted an annual payment of 6 pounds 13s. 4d. was reserved to the king. Baroness delvin and Sir Richard Nugent by deed of feoffment, dated 20th January, 1609, granted this several fishery to Sir Henry ffolliott as is found in the Inquisition of Ballyshannon. 2nd January, 1609. On 12th April, 1608, Letters Patent were issued by Sir Arthur Chichester, Deputy General, in pursuance of a letter of King James, dated 27th October--presumably in 1607--granting to Francis Gofton and his heirs the rights of fishing formerly enjoyed at the Abbey of Assaroe at the |
annual rent of 8 pounds 10s. 0d. On 20th May, 1608, as found in the Inquisition of Ballyshannon, 2nd January, 1620, the said Francis Gofton assigned and conveyed these fishings to Sir Henry ffolliott. As noted in the Crown Rental, Sir Henry ffolliott had obtained a lease for 21 years on 7th June, 1606, of portion at least of these fishings. By Letters Patent dated 9th April, 1622, King James made a fresh grant to Sir Henry ffolliott, uniting into one grant a great many lands in his possession held under various titles. The evidence established very clearly that Sir Henry ffolliott was an undertaker and possessed plantation lands, viz., the Manor of Newputon in the County of Fermanagh. It was, however, argued on behalf of the Attorney-General that the fisheries, the subject matter of this action, were not plantation lands because they did not appear in Pynnar's Survey of the Plantation. This merely negative evidence hardly satisfies in a legal way the point sought to be proved, but evidence was given of the official project for the division of the escheated kingdoms in Ulster done under the commission of King James on 23rd January, 1608, and also of the plan and conditions of the plantation. Prior to this date, viz., on 29th November, 1608 (the year then beginning in March) the King's letterfor the grant to Mary, Baroness Delvin, and Sir Richard Nugent had been drawn up. This grant comprised of a great number of denominations of land in Cavan but it also granted lands in Westmeath, Roscommon, Cork, Kildare, Dublin, Wicklow, the City of Dublin, Meath, King's County ; much of the land granted is stated to have come to the Crown by the dissolution of monasteries, and the grant contains no trace of being a plantation grant. Indeed the date of this grant makes it impossible that it should have been made as part of the scheme of the plantation. Yet it is as assignee of this grant, so far as the fishings are concerned, that Sir Henry ffolliott derived his title, save so far as he already had the lessee's interest as assignee of John Binglie for the residue of the term of 21 years. To prove that the several fisheries were held under plantation grants an argument of an indirect nature was put forward on behalf of the plaintiffs. It was pointed out that by the Letters Patent of 30th August, 1639, Thomas Lord ffolliott is released from all and singular the conditions covenants articles mandates instructions and agreements of the plantation and it was urged that this clause in the Letters Patent is proof that the several fisheries were planted under a plantation grant. If these |
several fisheries were the only premises granted the point would deserve consideration but it was truly pointed that the grant included the Manor of Newputon in the County of Fermanagh to which the clause will naturally have reference. It was also urged that by the same grant a general clause, releasing many properties, including fisheries by name from various obligations under the articles of the plantation. But there is no necessary inference that each named item of property must have been subject to each and every of the obligations mentioned and this clause gives no proof whatever that the fisheries were plantation lands, or that they lay within plantations. It should also be observed that in the Letters Patent of 1639 separate and distinct rents are created in respect of the Donegal lands and the Fermanagh lands. The earlier title of the the Donegal lands appears from the documents and most of these lands, if not all, were derived under grants which were not plantation grants. We are accordingly of opinion that neither 10 Car. I, sess. 3, cap. 3, nor 15 Car. I, cap. 6., gave to the Letters Patent of 1639 any statutory authority to override the provisions of Magna Charta in respect to the several fisheries the subject matter of this action and accordingly the grant of these several fisheries under these Letters Patent did not bind the public. We have to add, with reference to the statutes strongly pressed by Mr. Jellett, 31 Geo.2, c. 13, 3 Geo. 3, c. 35, that these statutes, which refer to the private several fisheries in the Erne, had no intention of altering Magna Charta and they can not be relied upon for this purpose. If in regulated fisheries they referred to fisheries which were enjoyed de facto as several fisheries, these statutes cannot be construed as a statutory validation of these fisheries contrary to the provisions of Magna Charta. No more did the statutes regulating fisheries or authorising the use of fixed engines intend that the question involved in this action should be incidentally determined by applications under those Acts. With Mr. Justice Johnston we feel strongly that ancient landmarks should not lightly be removed. In this case, however, the plaintiffs put forward a title which depends upon the Inquisition of Rathmullan, the lease to John Binglie, the grant to Mary Baroness Delvin, and Sir Richard Nugent and the Letters Patent to Sir Thomas ffolliott. They ask the Court to declare their title and bind the public for all time. In our opinion the plaintiffs' title depends upon the view stated in Sir John Davies' |
Reports which was prevalent in Ireland in the times of the Stuart Kings, and was perhaps held even in England under Queen Elizabeth. In 1859 this very fishery came before the Court in R. (Gillen) v. County Donegal Justices (I) which is not a very satisfactory case but it indicates the ideas which even then prevailed. When, contrary to the law stated in Davies' Reports, the House of Lords in 1863 reasserted the provisions of Magna Charta in Malcomson v. O'Dea (2) the foundations upon which the plaintiffs' title might be said to rest disappeared and, if we must state our opinion to be that the plaintffs' claim is invalid, it is the decision of the House of Lords in Malcomson v. O'Dea (2) which has produced the result. FITZGIBBON J.:-- The claim of the plaintiffs in the present action is to establish their right to a several fishery for salmon and all other kinds of fish in the entire tidal portion of the river of the River Erne in the County of Donegal, from the Falls of Assaroe at Ballyshannon to the high sea or bar of Ballyshannon, and the bed and soil underlying the said waters. The waters in question are navigable as well as tidal, and accordingly the claim of the plaintiffs is one to an exclusive right of fishing in the tidal navigable waters in Ireland. So far as England is concerned, "since the decision of the House of Lords in Malcomson v. O'Dea (2), it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation" : Attorney-General for British Columbia v. Attorney General for Canada (3). I rather think that this "was unquestioned law" in England long before the decision in Malcomson v. O'Dea (2), and the case law upon the subject in England, of which there is an enormous volume, turns in the main upon the sufficiency of the evidence in each particular case to establish the existence of an exclusive right of fishing at a date prior to Magna Charta. "If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is, not that you say, this is a usurpation, for it is not traced back to the time of
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Henry II, but that your presume that the fishery, being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory" : per Willes J. in Malcomson v. O'Dea (1). Now, there seems to be no doubt that, in England, long before Magna Charta, Kings of England had in fact appropriated to themselves by the exercise of the royal prerogative which was made illegal after 1189, and had granted to their feudatories or to religious houses, exclusive rights of fishing in tidal navigable waters, and accordingly there was no intrinsic objection to the presumption of such an appropriation founded upon evidence of the character described by Willes J., and similar principles would apply in any country in which the law of England upon the subject was in force. In Malcomson v. O'Dea (2) itself, though it does not appear in the very brief summary of the evidence on p. 595 of the report, the proved title to the fishery commenced with a charter from King John dated 12th January, 1200, to William de Braosa of "the honor of Lymerick with all its appurtenances in . . .fishponds and fisheries and ponds . . . as King Henry our father and honor gave to Philip de Braosa uncle of the aforesaid William," and there is a passing reference to this grant of Henry II in the judgment of Willes J. at p. 621, showing that in one part of Ireland at least a grant had been made by an English King in exercise of his prerogative , before the date fixed by Magna Charta, of a several fishery in tidal navigable waters. The main ground upon which the plaintiffs' claim is challenged is thus stated in par. 21 of the defence of the special defendants, and par. 1 of the defence of the Attorney-General, respectively :--"The said defendants contend that, on the true construction of the documents of title in the statement of claim set forth, the plaintiffs have not infact shown title to a several or sole and exclusive fishery in the locus in quo, viz., from the Falls of Assaroe to the high sea ; and, further, that by the provisions of Magna Charta the Crown was prohibited from granting a several or sole and exclusive fishery in the locus in quo in case such was not existing therein or before the year 1189, and any grant by the Crown contrary to the provisions aforesaid is null and void ; and, further, that a several or sole and exclusive fishery in the locus in quo in or before the year 1189 did not exist and is not historically possible ; and the said documents of title and the historical evidence show
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that the claim to a several fishery or sole and exclusive fishery in the locus in quo is modern in origin and dates at earliest from the times of Queen Elizabeth and King James the first." "The Attorney-General for Saorst/at Eireann . . . denies that the tidal portion of the river Erne in the County of Donegal from the Falls of Assaroe at BallyShannon to the high sea or bar of BallyShannon or any part thereof or the bed and soil underlying the said waters or any part thereof or the sole and exclusive or several rights for fishing for salmon or any other fish in the said waters or any part thereof had been put in defence from time whereof the memory of man is not to the contrary or at any time prior to the date of Magna Charta." Put shortly, these contentions, to establish which a mass of historical evidence was given at the trial, are that by the law which existed in Ireland before the date fixed by Magna Charta as the latest date upon which a several fishery could be created in tidal navigable waters by an exercise of the royal prerogative, no such fishery did or could exist ; that the creation of this particular fishery took place, at the earliest, in the reign of Elizabeth, when, it is alleged, such an exercise of the prerogative was prohibited by Magna Charta ; and, accordingly, that its origin was modern, and therefore illegal, within the terms of the opinion of Willes J. in Malcomson v. O'Dea (1), and of the Privy Council in Attorney-General for British-Columbia v. Attorney-General for Canada (2). I shall not set out here the documentary evidence in detail, but I can say that I have examined it over and over again with all the attention with which I am capable, and I am satisfied that there is no trace of any grant by any English King or Queen before the reign of Queen Elizabeth, and the first actual grant given in evidence was one by James I. Of course, if a several fishery had in fact existed in the waters in question before 1189, and this fishery had become vested in the Crown for the first time after that date, either by conquest, escheat, forfeiture, or otherwise, there would be no merger, and the Crown could make a new grant of it as an existing fishery, unfettered by the provisions of Magna Charta. I refer, in support of this opinion, to the judgment of Martin B. in the Duke of Northumberland v. Houghton (3), and especially to the speech of Lord Blackburn in Neill v. Duke of Devonshire (4), where he adopts, with the full concurrence of his colleagues, Selbourne L.C. and Lords
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O'Hagan and Watson, the judgment of Sir Edward Sullivan M.R. in the Court of Appeal in Ireland. The defendants have, however, undertaken the burden of proving that no several fishery did, or could under the Irish law which prevailed in Donegal or Tirconnaill until the reign of Queen Elizabeth, exist in the tidal navigable waters of the river Erne. Upon this question I have found myself compelled to come to a conclusion of fact different from that of the learned Judge by whom the case was tried. The plaintiffs tendered no evidence upon the laws of Ireland in respect of fisheries, and the evidence of Professor John MacNeill, Dr, de Largy, and Professor Binchy, has satisfied me that there was under the ancient Irish law nothing which corresponded to the several fishery dealt with in Magna Charta and the cases of Malcomson v. O'Dea (1) and Neill v. Duke of Devonshire (2). It has been suggested on behalf of the plaintiffs that the appropriation of a fishery to the people of a Tuath amounted to the creation of a several fishery, but in my opinion, the people of the Tuath were "the public" against whom no appropriation was permitted, and the right of fishing in tidal navigable waters enjoyed by the people of a Tuath to the exclusion of the rest of the inhabitants of Ireland would be analagous to a public right of fishing, and not to the legal conception of a several fishery. The plaintiffs have also founded an argument upon the right of fishing which is proved to have been enjoyed by several religious houses, and in particular in these very waters of the Erne by the monks of St. Bernard, who occupied the abbey of Assaroe, which was granted to them in or about 1184 by Flaherty O'Muldory, Lord of Kinel Connel, for the good of his soul. The fishing rights of the Abbey of Assaroe are defined in an Inquisition taken on the spot on the 26th of November, 1588, pursuant to the Acts for Dissolution of the Monasteries, and are found to be as follows :--"The Abbot and Convent of the Abbey aforesaid had in right of their Abbey or House aforesaid liberty for two fishermen to fish for salmon in the place of the river or stream called the Erne which is termed Asseroe near Bealashenan [Ballyshannon] every year during times in which salmon are caught And the second cast or draught [in English the second draught] of all the fishermen at Asseroe when they begin to fish And liberty for one skiff for fishing for salmon or other fish from the island up to the sea below, which fishing is of the yearly value
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of three shillings fourpence sterling English money aforesaid, which premises are the temporal (possessions) of the aforesaid Abbey." This is no "several fishery" but a limited liberty of fishing in the tidal waters of the Erne, granted to the members of a religious community, but the use of which the plaintiffs seek to make of it is that they contend that the grantor--who is unnamed--of this liberty must himself have been the owner of an entire and exclusive right of fishing out of which this liberty was carved, and accordingly that the grant of this liberty is evidence of the existence in 1184, when Flaherty O'Muldory endowed the Abbey, or at some date between that and 1189, of a several fishery owned by him or by some unknown person who made the grant of the liberty to the monks of Assaroe. This argument depends on a number of pure assumptions, and in my opinion the explanation suggested by Professor MacNeill is less improbable, while it is more consistent with the Brehon law concerning fishing rights. It is quite likely that when the Bernardine monks came into Tirhugh at the invitation of Flaherty O'Muldory from their mother Abbey at Boyle, they came as foreigners to the Tuath, and were permitted a limited liberty of fishing in the waters of the Tuath as an appurtenance to their monastery by the Chief and people of the Tuath. This view is confirmed by one of the pre-Norman grants to a religious house which has been given in evidence, viz. the Charter from Dermot, King of the Leinstermen, to the Abbey at Ferns, which is stated to have been made "by the counsel and assent of my princes and magnates," and the Charter of Maurice MacLoughlain, King of All Ireland, to the Cistercian Abbey of Newry is made "with the unanimous will and general consent of the nobles of Ultonia and Ergallia and Oneach." Grants in such form savour far more of a popular legislative act than of a feoffment or assignment of lands or of an incorporeal hereditament by a proprietor in his own right. When we come to grants such as those by John de Courcy in 1179 to the Monastery of Deddrum, of King John in 1179 to the Abbey of Jerpoint and in 1203 to the Abbey of Mellifont, and of Hervey de Monte Morisco in 1175 to the Abbey of Dunrody, there is nothing surprising in the conveyance of a conqueror, or by the grantee of a conqueror, of property acquired by conquest, to the Religious whom he found in actual occupation of a monastery upon the conquered territory, nor in the circumstance that his grant is made in the form in use in England at the time. Indeed, it is recited in the memorandum on |
the grant of John de Courcy to the Monastery of Neddrum that he had "subjugated Ultonia" in the twenty-third year of King Henry, i.e. 1177-8. He had in fact "gained the maritime coasts thereof from the Boyne to the Banne, and thereupon he was made Earl of Ulster." (1). I find myself coerced by the evidence to the conclusion that the conjectures of Lord Chancellor Brady (2) that it was "highly probable that the rights of this kind" (several fisheries in tidal navigable waters) "may have been enjoyed by the native princes," and of Willes J. (3) that "there is no improbability in the early appropriation of this always valuable property, or even a more extensive fishery, . . . in the time of the Irish Princes" cannot be successfully maintained in the light of our greater knowledge of the Brehon Law, and that the plaintiffs must assert a right to a several fishery in tidal navigable waters of the River Erne which had no existence as such until at earliest the later years of the reign of Queen Elizabeth.
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