but such as should be first transmitted into England, and approved by the King and Council there as good and expedient for that land, and so returned back again under the great seal of England." (1) "These laws, and others as important as these, for the making a commonwealth in Ireland were made in the government of Sir Edward Poynings. But these laws did not spread their virtue beyond the English Pale though they were made generally for the whole kingdom. For the Provinces without the Pale, which during the war of York and Lancaster had wholly cast off the English Government, were not apt to receive this seed of reformation because they were not first broken and mastered again by the sword. Besides, the Irish countries, which contained two thirds part of the kingdom, were not reduced to shire ground, so that in them the laws of England could not possibly be put in execution. Therefore these good laws and provisions, made by Sir Edward Poynings, were like good lessons for a lute that is broken and out of tune ; of which little use can be made, till the lute be made fit to be played on" (2). This passage, from Sir John Davies.' "Discovery of the true causes why Ireland was never entirely subdued and brought under obedience to the Crown of England, until the beginning of his Majesty's happy reign," is only an abridgement of portion of the judgment of the Court of King's Bench in The Case of Tanistry (3), where the statutes and the records of the Court are considered at length, which is introduced by the following passage :--"But as to the introduction of the common law of England into this Kingdom of Ireland, it is to be observed that as this island was not fully conquered and reduced to subjugation of the Crown of England, all at one time, but by parcels, and in several ages ; so the common law of England was not communicated to all the inhabitants, simul et semel, but from time to time, and to special persons and families of Irishry, to whom the King was pleased to grant the benefit and protection of his laws." And the same judgment goes on to refer to the pleadings and records in the well-known cases in which issues were tried whether the respective plaintiffs were "mere Hibernici, et non de quinque sanguinibus qui per concessionem progentitorum Domini Regis libertatibus Anglicus gaudere debent et utuntur," or, in another case, "non de sanguine aut progenie eorum, qui gaudent lege Anglicana, quoad brevia portanda." Even in the statutes down to the 33rd Henry VII the English
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disturbers of the peace are styled "rebels," but the Irish are called "enemies." It was a good plea to an action by an Irishman that the plaintiff was not an English, nor one of the "five bloods" who enjoyed the privilege of being allowed to maintain suits in the Courts, and it was a good plea to an indictment for murder that the slain man "fuit Hibernicus et non de libero sanguine." There are extant numerous patents of denization, granted to "Hibernici," "quod ipse de caetero in Hibernia utatur legibus Anglicanis, et prohibemus ne quisquam contra hanc concessionem nostram dictum C____ F____ D____ in aliquo perturbet," and even "omni modo terras, tenementa, redditus, et servitia perquirere possit sibi et haeredibus suis in perpetuum," etc. Even the head of one of the five bloods, "O'Neale himself, in 20 Edward the Fourth, upon his marriage with the daughter of the house of Kildare (to satisfy the friends of the lady), was made a denizen by a special Act of Parliament, 20 Edward the Fourth, c. 8" (1). "Now we know as a matter of general history," says the Chief Justice in R. (Moore) v. O'Hanrahan, (2), "that Tirconnaill at this time" (i.e. Henry II and John) "escaped invasion, and that the chiefs of Cinel Connel did not render feudal homage to Henry, and did not accept him as their overlord." The evidence of the historians in the present case carries our knowledge to a later date. Professor Binchy at Question 1648 and following questions :-- "From 1171 down to the year 1541 there is no evidence of any submission by a chieftan of Tirconnaill to the Kings of England?" "No. None whatever." "I take it that from any time down to 1541 there is no evidence of any submissions or claims to sovereignty by the Kings of England over Tirconnaill?" "Not that I have ever seen." "No acknowledgement of a right of sovereignty?" "No, no acknowledgement." From the time that the O'Donnells succeeded to the Chieftaincy of Tirconnaill did they continue as Irish Chiefs up to 1541?" "Yes, and probably later." "Certainly up to 1541 for the moment?" "Yes." "For example was there a general submission of the Irish Chiefs to Richard II in 1392?" "Yes." "And in that submission was the chief of Tirconnaill a notable absentee?" "He was the great absentee, the most notable absentee." "Were there any settlements of foreigners made in Tirconnaill?" "No permanent ones of any kind." "Was there any evidence of any attempts to introduce into Tirconnaill English Rule or English Law?" "Not until the very late sixteenth century." "In 1541 Manus
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O'Donnell made his submission?" "He did." "Was that submission followed by any attempt to set up English administration?" "No, it was not." To this testimony I venture to add that of Sir John Davies, Attorney-General in Ireland 1603-1616, who accompanied the Lord Deputy on his visits to the Counties of Monaghan, Cavan, and Fermanagh in 1607 after the death in rebellion of Hugh M'Guyre, and was one of the Commissioners for disposing of the forfeited or conquered lands in Ulster. It was on this visit that the Lord Deputy went to Ballyshannon itself. Of the submissions in 18 Ric. II to which reference was made in the evidence of Professor Binchy Sir John Davies says (1) :--"Yet did he not increase his revenue thereby one sterling pound, nor enlarge the English borders the breadth of one acre if land ; neither did he extend the jurisdiction of his courts of justice one foot further than the English colonies, wherein it was used and exercised before." "After Sir Henry Sidney, Sir John Perrott, who held the last parliament in his kingdom, did advance the reformation in three principal points : First, in establishing the great composition of Connaught, in which service the wisdom and industry of Sir Richard Bingham did concur with him, next, in reducing the unreformed parts of Ulster into seven shires, namesly, Ardmagh, Monahan, Tirone, Coleraine, Donegall, Fermanagh, and Cavan ; though in his time the law was never executed in these new counties by any sheriffs or justices of assize, but the people left to be ruled still by their own barbarous lords and laws" (2). "Sir George Cary (who was a prudent Governor, and a just, and made a fair entry into the right way of reforming this kingdom) did, in the first year of his Majesty's reign, make the first sheriffs that ever were made in Tyrone and Tirconnel ; and, shortly after sent Sir Edmund Pelham Chief Baron and myself thither the first justices of assize that ever sat in those countries ; and in that circuit we visited all the shires of that province" (3). It is abundantly clear from these passages that Sir John Davies, who had first hand knowledge of the subject, did not consider that the English laws had been extended to Donegal in the reign of Henry VIII. From these extracts, and from a mass of other evidence, it seems to be an ascertained historical fact that the land and inhabitants of Tirconnaill never came in subjection to the Crown of England until the last year of Queen Elizabeth or the first
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year of King James I, and were then acquired by conquest. But that conquest did not of itself extend to the conquered territory and its inhabitants the laws of England. In Campbell v. Hall (1) the manner in which the laws of England are imparted to Dominions, Colonies, and ceded or conquered territory, was the subject of adjudication in the Court of King's Bench, and the case of Ireland came under particular consideration. Lord Mansfield (2) expressed the clear opinion of the court that it was the prerogative of the King to promulgate new laws, without the concurrence of Parliament, for a conquered country. "This is not a matter of disputed right ; it has hitherto been uncontroverted that the King may change part or all of the political form of government over a conquered dominion. To go into the history of conquests made by the Crown of England. The alteration of the laws of Ireland has been much discussed by the lawyers and writers of great fame." (The "Discovery" of Sir John Davies, to which I have referred, is was largely cited, especially by the celebrated Mr. Francis Hargrave, in the three arguments which took place.) "No man ever said the change was made by the parliament ; no man, except perhaps Mr. Molyneux, ever said to the King could not do it." In Fabrigas v. Mostyn (3), de Grey C.J., with whom Gould, Blackstone, and Nares JJ. agreed, declared that it was the right of the King in Council to make regulations for the government of the conquered island of Minorca, and in Jephson v. Riera (4) the Privy Council, on appeal from the Supreme Court of Gibraltar, held, following Campbell v. Hall (1), that the power of making laws for the conquered territory was "vested in the Crown, without any limitation as to the advice under which it may be exercised." It appears to me to follow from these authorities that the date upon which the provisions of Magna Charta, or any other English law, became applicable to the newly conquered territory of Tirconnaill depends upon, and must be ascertained from the proclamation or Order in Council, if any, by which the laws of England were extended to the new subjects of the King, and if no such proclamation was made, then from whatever statute, either of the English or the Irish Parliament, made the existing laws of England or Ireland of force in that territory. It further appears to me that in the interval between the conquest
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and the promulgation of English law, the King, for whom the territory had been conquered by his army, could exercise the royal prerogative of making grants of the conquered land, and of creating several fisheries in the tidal navigable waters around its coasts, unfettered by the limitations imposed upon him in respect of his English Dominions, or of the Irish Pale, by Magna Charta. If I am right in the opinion that the laws of England had not been extended to Tirconnaill when the first grant of a several fishery in the tidal waters of the Erne at Ballyshannon was made to a subject of Queen Elizabeth or of King James, the grantee would have just as good a title to it as William de Braosa had to the fishery which was the subject of the decision in Malcomson v. O'Dea (1). The Case of Tanistry (2) also supports the view that English law was not in force in Tirconnaill until about the year 1607 or later. We have not been referred to any proclamation, and I do not know whether any proclamation was made, before the first grant of a several fishery in the tidal navigable waters of the River Erne on October 14th, 1603, but there was a statute passed in the parliament of Ireland, held in the eleventh, twelfth, and thirteenth years of King James I, cap. 5, entitled "An Act of Repeale of diverse Statutes concerning the Natives of this Kingdom of Ireland," by which, after a recital "that all the natives and inhabitants of this kingdome, without difference and distinction, are taken into his Majesties's gratious protection, and doe now live under one law as dutiful subjects of our Sovereigne Lord and Monarch," a number of statutes against the Irish and their customs were repealed. That Act is dated 1612, the year in which the session commenced. Of the earlier chapters, the first, also 1612, is a "most joyful and just Recognition of his Majesties's lawful, undoubted and absolute Right and Title to the Crown of Ireland, " and after reciting that until the suppression of the late rebellion, presumably that of the Earls of Tyrone and Tyrconnell in 1607, "the unreformed parts of this land, which being ruled onely by Irish lords and customs, had never before received the lawes and civill government of England," refers to the securing of the lands and estates, and finally to the reduction "to your Majesties hands and possession" of "great scopes of land" in the Province of Ulster by the "defection and attainder" of "divers wicked and ungrateful traytors" in those parts, and "the
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civill plantation of those escheated lands." Chapter 4 is the "Act for the Attainder of Hugh, late Earl of Tyrone ; Rory late Earl of Tyrconnell ; Sir Cahir O'Dogherty, knight, and others," and by it all their lands are forfeited to his majesty, with a proviso saving "any graunt, gift, lease, or demise," made by his Majesty "to any person or persons by letters patents under the great seal of Ireland or under the great seal of England." The fishery which is in dispute in the present case had been leased nine years before the date of this statute by King James to one, Binglie or Bingley, and had been for several years in the actual possession of Sir Henry ffolliott, from whom plaintiffs derive their title. I mention, lest it should be supposed that I have overlooked them amongst the mass of documents in this case, three instruments which record dealings between the Crown and Irish Chieftains of Tirconnaill. The first is a "Treaty between the Lord Deputy and Calvart O'Donnell by which O'Donnell surrenders to the Queen all regal services and rights in Connalia." It bears date 8 Elizabeth, that is 1565, and is attested by three of the O'Donnell family, by Donald Magonnell, Bishop of Raphoe, O'Doghertie, Chief of his name, three of the McSwines, of whom one was the Chief of his name, "and other gentlemen of Connalia." Calvart O'Donnell agrees, inter alia, that "Her Majesty shall have the donation of all bishops and other ecclesiastical persons in Connalia." We know from Sir John Davies that the Queen never succeeded in putting this power into execution in Tirconnaill, and this "Treaty" is not, as is manifest from its provisions, an unconditional surrender by the King or Chief of a conquered country, and, in any event, it is difficult to see how Calvart O'Donnell, whose title was subject to the Brehon law, could make a valid surrender of the lands of his Tuath. Several of the attesting witnesses were subsequently attainted, and Donald Magonnell, Bishop of Raphoe, is that Donaldus Magoniall, Hibernus, Episc. Rapotensis, whose name is recorded amongst the Episcopi Pii IV, in the concluding Sessions of the Council of Trent. The next document is a Grant of March 18th, 43rd Elizabeth (? 1601), to Neal Garve, or Garrowe, O'Donnell, Chief of his name, of the custody of the county of territory of Tirconnaill, "with all lordships, manors, lands, customs, rents and services which had been granted to Calvart O'Donnell, grandfather of Neal, excepting the castle and town of Ballishannon, 800 acres of land adjacent, the fishings of the Earne and all rights and royalties in Connalia and the donations of the |
bishoprics, presentation of churches and all lands and possessions as well as spiritual as temporal to hold during pleasure" ; and the third is a grant on 10th February, 1603, to Rorie O'Donnell, Earl of Tirreconnell, and his heirs male, remainder to his brother Caffrey and his heirs male of all the territories and countries within the circuit of the land of called Tirconnell, &c., to hold in as full and ample manner as his brother, Hugh Rufus O'Donell, who was attainted and died in Spain, or as his father, Hugh Manus O'Donell, or his grandfather, Manus O'Donell, or any other of his ancestors. This reserves, inter alia, "fishings" "the castle or fortress town and circuit of Ballishannon" with the precinct thereof with all lands &c belonging to the said castle, 1000 acres, "and also the entire fishings belonging to the said castle in all the rivers &c within the said town and 1000 acres." With respect to the Elizabethan grants to the O'Donnells, there is a significant resolution of the Court in the Case of Tanistry (1). "A tanist surrenders to the Queen, who regrants the land to him, the Queen's grant is void." "It was also resolved that nothing passed by the grant of Queen Elizabeth made to Conoghor O'Callaghan, as it is found by the verdict ; for the grant is made in consideration of his surrender, and he claimed nothing but as tanist, who hath no estate of which the common law taketh notice . . . by which the grant of the Queen made in consideration of such estate surrendered is void in law, Barwick's Case 5 Co. 93, and the case of Altonwoods, 1 Co. 43, 18 Eliz. Dyer 252." "Lastly where it was objected by one of counsel for the plaintiff that Queen Elizabeth should be said to be in possession of this land" (which was in "Publicallaghan, otherwise O'Callaghan's counterie," in the County of Cork, a long settled part of Ireland) "by virtue of the first conquest of Ireland . . . it was resolved against this objection that Queen Elizabeth shall not be said to be in actual possession of this land by virtue of the first conquest, if it doth not appear by some record that the first conqueror has seised the land at the time of the conquest, and appropriated it particularly to himself as parcel of his proper demesne." The Court then proceeds to state the law as to conquered lands substantially as it was stated by Lord Mansfield in Campbell v. Hall (2) a hundred and sixty-five years later. That was a Cork case, but then we turn to Tirconnaill, Sir John Davies points out that, instead of seising the lands, "no Governor during Queen Elizabeth's reign did refuse
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to grant any of those 'Captainships'" (the kind that were granted to the O'Donnells as above mentioned) "to any pretended Irish lord who would desire, and with his thankfulness deserve the same. And again, though the greatest part of Ulster were vested by Act of Parliament in the actual and real possession of the crown ; yet was there never any seisure made thereof, nor any part thereof brought into charge, but the Irish were permitted to take all the profits without rendering any duty or acknowledgement for the same." I have dealt with this matter, which was not discussed during the argument, at, I fear,. inordinate length, but I am anxious to protect myself against any suggestion that I have decided, or that it is involved in my decision, that Magna Charta was in force in Tirconnaill before 1612, or that King James I or Queen Elizabeth could not have had any power to create a new several fishery in tidal navigable waters in Tirconaill after that territory had been acquired by conquest, and before a proclamation, Order in Council, or statute had been made extending the laws of England, including Magna Charta, to it and its inhabitants, or that the principles declared in Attorney-General for British Columbia v. Attorney-General for Canada, (1), as applicable to newly settled colonies, have any application to dominions newly acquired by conquest, as was the case with Tirconaill at the beginning of the seventeenth century. Dealing with the case upon the assumption, which has not been disputed by the plaintiffs' counsel, that Magna Charta was in force in Tirconaill before the reign of Queen Elizabeth, and upon the conclusion at which I have arrived upon the evidence, that no several fishery existed in fact before 1189, I must consider the plaintiffs' alternative case, which is founded upon certain statutes passed in the reign of Charles I for the confirmation of Letters Patent and for the remedying of defective titles, and which was introduced by an amendment of the pleadings during the hearing of the case in the Court of first instance. The plaintiffs' title is as follows :--On the 5th of September, 1603, by an Inquisition taken at Rathmullan in the County of Donegal, it was found that this fishery, with others, belonged to the King (James I) in right of his Crown. I am not satisfied that this finding was induced by any misunderstanding of the law relating to fisheries in tidal navigable waters on the part of Sir John Davies or anyone else. I think, though I do not decide, that this Inquisition, and the later one taken at Lifford on September 12th, 1609, may well have been taken to ascertain the properties acquired
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for the Crown by conquest from the Chieftains of Kinel-Connel and Kinel-Oweb, and included in "the great scopes of land" in the province of Ulster, which the statute of James I declares to have been reduced into his Majesty's hands and possession and "had never before received the lawes and civill government of England." On October 14th, 1603, this fishery was demised to one, John Binglie or Bingley, for a term of 21 years at a rent. What became of Bingley and his lease does not appear, but within three years, viz. on June 7th, 1606, a new lease for 21 years of the self-same fisheries was made by the Crown to Sir Henry ffolliott for the term of 20 years, that is the unexpired residue of the term created by the previous letting. On April 12th, 1608, a grant in fee of the Abbey fishings was made to one, Francis Gofton, at the annual rent of eight pounds ten shillings, and this grant included the reversion expectant upon any demise "before this time made," presumably the reversion expectant upon the lease to ffolliott. At an Inquisition taken at Lifford on the 12th September, 1609, it was found that the Assaroe Abbey fishings were the in the possession of Sir Henry ffolliott, and that "that the whole countrie of Tireconnell, otherwise called O'Donnell's countrie, and all lands, tenementes, fishinges, royalties and hereditamentes within the said com. of Donegall, (except the said countrie and lands of Inishowen and excepte all castles, lands, tenementes and hereditamentes abovementioned to belonge to any bushoppricke, deanerie, abbie, monasterie, or religious house) are now in the reall and and actuall possession of the Crowne by reason of the attainder of treason of Rorie late Earle of Tireconnell." On July 20th, 1609, a grant of enormous tracts of lands in half a dozen counties, including the fishery in the Estuary of Erne at Ballyshannon, was made to the Baroness of Delvin and her son Nugent. This was subject to the term of the lease to Sir Henry ffolliott. These Inquisitions, and the grants, the interests under which were subsequently acquired by ffolliott, were all prior to the statutes of 11 Jac. I., which extended the English law to all the inhabitants of Ireland, but which contained an express saving of all grants etc. previously made. On March 21st, 1620, a second Inquisition was taken at Lifford, at which there was a presentment of a royal fishery for salmon in the sea below Ballyshannon, which was found |
to have been in the possession of ffolliott and his assigns for sixteen years past, which takes us back to the conquest of Tirconaill. ffolliott appears to have been very assiduous in collecting to himself all the outstanding and conflicting interests in the properties comprised in these several grants and leases, for by an Inquisition taken at Ballyshannon on the 2nd of January, 1620, it appears that he had acquired by purchase from Gofton on May 20th, 1608, the premises comprised in the grant to Gofton of April 12th in the same year, that on July 10th, 1604, he had purchased from one, Robert Leycester, lands and fishings in Fermanagh and Sligo which had been granted by the Crown to Leycester on May 17th, 1604, and finally, that he had purchased from the Baroness Delvin and her son the Ballyshannon fisheries comprised in the grant to them of July 20th, 1609, together with other liberties appertaining to the counties of Donegal, Sligo and Fermanagh. He had also obtained from the King in 1612 a grant of the castle and town of Ballyshannon with about 1,000 acres of lands appertaining thereto. Upon the 9th of April, 1622, by Grant pursuant to Letters Patent dated October 22nd, 1618, King James granted to Sir Henry ffolliott, who was then Baron of Ballyshannon, the entire premises comprised in the different grants and leases to which I have referred, including, with many others, the Abbey of Assaroe, its lands, weirs, and liberties of fishing, the castle, bawn and fort of Ballyshannon, the 1,000 acres, the fairs and tolls, "and also the entire creek bay or river of Bealshanney, otherwise Ballyshannon, viz.: from the high sea as far as the Bank or all of water commonly called the salmon leap, otherwise the fall of Asheroe, near the castle of Ballyshannon and also the aforesaid Bank or Saltus Salmoni, in English the Salmon Leap, otherwise the fall of Asheroe, with its appurtenances and also the lakes, weirs, islands and banks in or near the aforesaid creek, bay and river aforesaid and the soil and ground and water of the aforesaid creek, bay lake or river and all the land covered with water there and also the entire fishing and liberty of fishing to take salmon and all other kinds of fish whatever in or within the aforesaid creek, bay and river aforesaid and upon the banks aforesaid . . . and also the whole and entire river and water of Erne aforesaid from the high sea as far as Lough Earne and the ground and soil of the same with the appurtenances, lying and being in the Counties of Donegal and Fermanagh or either of them, which all and singular the premises above by these presents before |
granted now are in the tenure and occupation of the aforesaid Henry Lord ffolliott, Baron of Ballyshannon, his tenants or assigns." The habendum of the granted hereditaments is in fee simple as regards the Abbey premises, in capite by military service as regards the castle of Ballyshannon, and for the placing therein of a constable and wardens during the minority of any heir of Lord ffolliott, and especially full warranties and non obstante clauses. Henry Lord ffolliott died shortly after this grant, and an Inquisition post mortem was held at Ballyshannon on March 1st, 1623, by which it was found that he died seised in fee of all the premises granted by the Patent of April 9th, 1622, subject to some grants which are not material to the title to the fishery, and to provisions for his widow, two sons and a cousin, and that "Thomas the present Lord ffolliott his son and next heir was then aged 9 years and 8 months and not married." The next document, which is treated either as a constitution of the title of Henry LOrd ffolliott, or in the alternative as a fresh root of the plaintiffs' title, is a Grant by Letters Patent under the great seal, dated the 30th of August in the fifteenth year of Charles I, and duly enrolled, whereby there were granted to the said Thomas Lord ffolliott, the eldest son of Henry, together with other hereditaments, all the lately dissolved Abbey of the monks of St. Bernard of Asheroe, with the fishings and liberty of fishing in or near the bay or port of Ballyshannon between the castle of Ballyshannon and the high sea, "which were reputed and are now reputed to belong to the said Abbey or the Abbot and Convent thereof from a time of which there is no human memory to the contrary," the castle of Ballyshannon with its appurtenant and adjoining lands, its markets and fairs, "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 the aforesaid rock or salmon leap or fall of Asheroe with the appurtenances And also all and singular loughs weirs islands rocks . . . 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 an catch salmon and all other kinds of fish whatsoever in or within the aforesaid creek bay and river aforesaid and on the rocks aforesaid . . . " Then follow ell weirs and "the liberty of 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 . . . creeks river or bays or from any part thereof," Habendum, as regards the fisheries and fishings, to Thomas Lord ffolliott his heirs and assigns for ever. All the premises are created into one entire manor to be for ever reputed styled and named the Manor of Bealashanny in the County of Donegal. These Letters Patent are stated to be "according to the intention and effect of our Commission under our Great Seal of England bearing date at Canbury [Canterbury] in our said Kingdom of England on the first day of September in the fourteenth year of our reign, as well for and in consideration of a certain fine or sum of ninety-nine pounds seven shillings and sixpence," and they contain in further persuance of the said Commission a release to Thomas Lord ffolliott from "all and singular the conditions covenants agreements and mandates whatsoever and however contained mentioned or specified in any prior Letters Patent of the premises before mentioned or any of them or any parcel thereof made or mentioned to be made to the aforesaid Thomas Lord ffolliott or any other person or persons whomsoever before the date of these our Letters Patent," a release remittance and quit claim of all penalties, rights of re-entry for breach of any condition in any prior Letters Patent, or by reason of any violation or non-performance of any condition article mandate instruction provision or limitation for the plantation, with only a proviso for the maintentance and repair by Thomas Lord ffolliott, his heirs and assigns, of the castle and fortalice of Ballyshannon, and the reservation of a right to instal a constable and ten wardens in the Castle during the minority of any heir. The grant is to be free of all rents, penalties, articles of plantation, covenants for the performance of the plantation, forfeitures for nonperformance of the plantation, and, after an elaborate non obstante clause, specifying many statutes, 'notwithstanding any other statutes Acts ordinances prohibitions restrictions instructions or provisions or any other thing cause or |
matter in evacuation and weakening or annulment of these our Letters Patent." Of themsleves, these Letters Patent would have no more, and no less, force or validity than any other royal grant, but they were made in pursuance of, and were invested with the validity conferred by, a statute passed in the fifteenth year of Charles I (1), by which it was enacted, after reciting the creation of divers Commissions of Grace for the remedy of defective titles in Ireland, and the granting of lands and hereditaments upon them "as well . . . as . . . upon the latter commission of grace bearing date at Canterbury in the realme of England the first day of September in the fourteenth year of his said Majestie's reign," and that some lands had not yet passed but might thereafter be passed, it was enacted that all letters patent "which are already past . . . under the greate seale . . . of Ireland" "by vertue or pretence of or reference unto any commission of grace now in being or hereafter to be within this kingdom or any other former commission or commissions granted since the beginning of his now Majestie's reign to any person or persons . . . shall be by authority of this present Parliament enacted and to be and shall be deemed and adjudged to be good sufficient effectuall and indefeazable to all intents constructions and purposes in manner following (that is to say) for and concerning all . . . lands . . . lying or being within every or any of the late plantations within this kingdom made by our late soveraign 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 as his Majesty his heirs and successors, as against all and every person and persons, bodies politick and corporate, as well spiritual as temporal whatsoever . . . notwithstanding . . . any statute ordinance law cause matter or thing which might or may any way impeach enfeeable avoid or destroy any of the said letters patent in all or any point or points whatsoever." There follows an enactment for quiet enjoyment. The second section enacts that His Majesty shall be deemed seised of an absolute estate in right of his imperial crown in all lands and hereditaments in the counties of Tyrone, Armagh, Donegal, Fermanagh, Cavan, Leitrim and Longford ; in several countries, formerly of the Irish families, in other counties ; in several reputed plantation lands in or near certain territories in Westmeath and Wexford ; in several hereditaments in the counties of Waterford, Cork, Kerry, |
Limerick and Tipperary, usually called or theretofore passed as plantation lands, "at every such time and times respectively, whensoever any of the same before mentioned . . . 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 . . . to any person or persons . . . by letters patents under the greate seale of this kingdom by vertue or pretence of or reference unto any such commissions of grace now being or hereafter to be within this realme, being either former patentees, or reputed inheritors or proprietors, or by former assignation distribution or appointment have taken the profits thereof," the grantees shall from and after the passing or sealing of any such letters patent be confirmed in their possession and may hold "as well against his Majesty his heirs and successors as against all and every other person and persons bodies politick and incorporate" freed and discharged from everything except what shall be saved in the letters patent. This Act, together with three previous Acts for confirming and strengthening defective titles, appears to me to have been passed with the express object of ensuring to the patentees of the Crown, with the authority of Parliament, the estates which had been granted to them, and it appears also that each statute was passed to remedy some oversight or to meet some objection which had been or which might be made to the validity of a title derived under the previous statutes or some grant which they had been intended to confirm. Thus under 10 Car. I, sess. I, cap. 3, titles had been confirmed only against the King his heirs and successors and all other parties to the same and persons claiming under them. 10 Car. I, sess. 3, cap. 2, was to meet the case of any failure to enrol or record letters patent, to provide for misrecitals and misnomers, and to acquit patentees of reservations in earlier grants in the same lands, while 10 Car. I, sess. 3, cap. 3, which is in almost identical terms with 15 Car. I, cap. 6, only provided for the validation of grants made within "five years next ensuing the end of this present session of Parliament," a period which expired on the 20th of March, 1639. The recitals in 10 Car. I, sess. 3, cap. 3, show the classes of grantees for whose benefit it was enacted. It recites that "sundry plantations have at severall times been made" in eighteen specified counties which include Donegal, "grounded as well upon ancient as recent title of your crown , declared as well by inquisitions as other records and evidences ; upon which all 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 . . . by occasion of which, very many castles, bawnes, strong houses, forts and townes walled, have since been built and erected . . . to the unexpected enriching and civilizing of the said severall counties and territories." With a view to the confirmation of grants, his majesty is to deemed and seised and vested "in the actuall and reall possession and seizin" "by good lawful and indefeasable title and estate in fee simple," in right of his imperial crown of England and Ireland of "all castles, mannors, lands, tenements, and hereditaments lying and being in the said severall counties of Tyrone, Armagh, Donegall, Fermanagh, Cavan, Londonderry, Leytrim and Longford," which is a complete enumeration of eight counties, with no reference to any distinction between "plantation lands" and any others, though in the following categories of lands elsewhere in Ireland, distinction is drawn between territories, precincts and countries of the Irish families, plantation lands, reputed plantation lands, and lands passed as such. The 15 Car. I, cap. 6, is almost identical, except that for some reason it omits Londonderry and the nomenclature of the Irish families is corrected, and the confirmation is made even more elaborate. nbsp; The grant to Thomas Lord ffolliott by letters patent dated August 30th in 15 Car. I recites that they were made in pursuance of the Commission of Canterbury dated September 1st, 14 Car. I, which was the foundation of the Statute of 15th Car. I, cap. 6, and the grant was duly enrolled within the prescribed period, and from that date down to the recent attempt by the special defendants to invade the possession of the plaintiffs, it is not suggested that the grantees under those letters patent have not been in continuous possession and uninterrupted enjoyment of the fishery at Ballyshannon, and it is admitted that the fishery claimed by the plaintiffs is the same fishery which was granted by the letters patent. The Attorney-General has quite properly admitted that, if the grant by the letters patent of 15 Car. I, be valid, no question arises upon the subsequent devolution of title to the present plaintiffs. I understand that the validity of this grant is disputed upon two grounds :--first, that the lands comprised in it are not "plantation lands," and, second, that ffolliott was not an "undertaker" or a person entitled to share in what is called by the Attorney-General "the plantation." |
The answer to the first objection appears to me to be that the whole of the county of Donegal is declared by Acts 10 Car. 1, sess. 3, cap. 3, and 15 Car. I, cap. 6, to be deemed to have been vested absolutely and indefeasibly in his Majesty for the express purpose of validation of any grants made by him. The counties specified in the first category of lands dealt with by those statutes are those which were the last to be conquered and the same which comprised the territories forfeited to King James I by 11 Jac. I, cap. 4, when the Earls of Tyrone and Tyrconnell, Sir Cahir O'Dogherty, the O'Reillys of Cavan, Maguire of Fermanagh, O'Hanlon's of Armagh, and many more were attainted and outlawed, and their lands absolutely forfeited to His Majesty. These statutes appear to me by their very terms to put the Ulster counties named into the same position as plantation lands, and certainly to validate all grants of lands in those counties, whether strictly plantation lands or not, and the grants to the ffolliotts are in the form of plantation grants. It was not necessary to constitute a "plantation" that a whole county or even a considerable tract of land should be settled. The planting of "castles, bawnes, strong houses, forts and townes walled," in or on the border of a hostile country was a "plantation," and plantations of this description were effected English Monarchs and their Deputies long before the great Stuart and Cromwellian schemes of settlement were dreamt of. I can imagine no site more suitable for the plantation of a "castle, bawne, strong house or fort," than the great passage of the Erne which has been called Seanach's Ford since the earliest times of which we have even a tradition. The castle, which was put in charge of ffolliott, commanded the ford over the Erne which was the gateway into or out of Tirconnaill, which was the pass by which the peoples of Kinel-Connell were wont to start on their raids into Sligo and Connacht, and it was across the ford at Ballyshannon that the forces of O'Donnell passed upon that last disastrous journey which ended for so many of them at Kinsale. It was also the bridge-head for operation against Tirconaill, and corresponded to the great fort upon the Blackwater which was constructed and maintained as a curb upon the activities of Tyrone. All the provisions in the grants of the Ballyshannon estates seem to me to be peculiarly appropriate to the plantation of a Warden of the Ford to protect the neighbouring counties against the aggression of the still unconquered Kinel-Connell. Upon the second point, Sir Henry ffolliott is termed by |
manifest implication a "servitor" in the King's letter dated October 22nd, 1618, a document which recites his interest in this very fishery, and the letter was the authority for the grant to him of April 9th, 1622, by which all the property which he had gathered in from Bingley, Gofton, Leycester, and the Nugent family was created one entire manor of Ballyshannon and granted to him. In the grant to Thomas Lord ffolliott, his son, in 1639, there was actually a clause releasing him from the articles and conditions of the plantation, perhaps because there was no longer need to guard the passage of the Erne against the peoples of Tirconaill. So far as these two points are concerned, I am in complete agreement with Johnston J. and I adopt what he has said on them. If there were any doubt or ambiguity concerning the true interpretation of the Statutes 10 Car. I and 15 Car. I, in my opinion, the unchallenged enjoyment of the property for three hundred years ought to be attributed, if it can reasonably be referred, to a lawful origin, and that construction which will support such an origin should be placed upon any ambiguous language in the Statutes. "I cannot go along with his Lordship [Lord Justice Clerk]," and Lord Brougham, in the Magistrates of Dunbar v. the Duchess of Roxburghe (1), "when for this reason he denies that usage, however long and inveterate, could be binding and operative on the parties. It can be binding and operative upon the parties only as it is the interpreter of a doubtful law, as affording a contemporary interpretation ; but it is quite plain that, as against a plain statutory law, no usage is of any avail. But this undeniable proposition supposes the statute to speak a language plainly and indubitably differing from the purport of the usage. Where the statute, speaking on some points, is silent as to others, usage may well supply the defect, especially if it is not inconsistent with the statutory directions, where any are given ; or where the statute uses a language of doubtful import, the acting under it for a long course of years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed rule, optimus legis interpres consuetudo, which is sometimes termed contemporanea expositio ; and where you can carry back the usage for a century, and have no proof of a contrary usage before that time, you fairly reach the period of contemporanea expositio." When I find that not for one century, but for three,
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the lands comprised in the ffolliott grant have been dealt with as if they were plantation lands, and, so far from any contrary usage appearing, that there has been an uninterrupted and unchallenged enjoyment of the whole property upon this basis, and that the statutes of Charles refer to Donegal in terms which at least admit of the interpretation that the whole country was regarded as plantation land or reputed as such, I think that the principle of interpretation stated by Lord Brougham may be applied to these statutes, and that it is not even necessary to call in aid the express enactments, in the statutes themselves, that they are to receive the construction most favourable to the patentees. That the language of the statutes is at least "of doubtful import," and that it does not differ "plainly and indubitably from the purport of the usage," is not an unfair deduction from the fact that the judicial opinion is evenly divided upon its interpretation ; and that usage has placed this construction upon the statutes seems to me seems to me to be established by the following proved or admitted facts :--The patentees and their tenants and assignees have been in actual possession and enjoyment, not alone by documentary title, but by actual use, of the fishery in question without challenge by the Crown or anyone else, for over three hundred years. During that period the grantees have paid and the Crown has accepted the rents reserved by the grants and payable in respect of the fishing rights and the several fishery granted to Henry Lord ffolliott and found by Inquisition to have been in his possession since 1603. That the Crown rent was redeemed so recently as 1897 by payment to the Crown through the Land Judges Court of a capital sum ; that the existence of this several fishery was recognised as such in at least two public statutes, 31 Geo. II, cap. 13, and 3 Geo. III, cap. 35 ; that the fishery has been constantly dealt with as property, has been let and sold from time to time ; that it has been taxed and rated, as a several fishery, to the relief of the poor for nearly a century ; and finally, that the Special Commissioners of Fisheries, under the Acts 5 & 6 Vict. C. 106, and 26 & 27 Vict. C. 114, and the Inspectors of Irish Fisheries under the Fisheries (Ireland) Act, 1869, have given certificates from time to time as required by law that the "fixed engines" for catching salmon in the estuary or tide-way of the River Erne, owned and worked by the plaintiffs, their predecessors, were legal--certificates which could not have been granted unless the owners or users of the engines in question had first satisfied the Commissioners that they |
had been legally erected "in a several fishery." It was the duty of the Commissioners, as a specially appointed statutory tribunal, to inquire into all these fixed engines in estuaries of rivers and to abate and destroy all illegal engines. Such fixed engines were illegal unless they had been erected by a person legally possessed of or entitled to a several fishery, and the title to the fishery was one of the matters which the Commissioners were empowered to investigate. If the Commissioners were "satisfied" of the legality of the engine, they were to give a certificate to that effect. A special appeal was provided by the statute for any person aggrieved, but he adjudication of the Commissioners was not removable by certiorari. It was held in the Lax Weir Case (1) that the decision of the Commissioners under 5 & 6 Vict. C. 106, as to the legality of a weir as a judgment in rem, and by Palles C.B. and Andrews J. in Devonshire v. Drohan (2) that the determination of the Commissioners under 26 & 27 Vict. C. 114, as to the legality of a weir, was a judgment in rem and conclusive against the world. Each of these circumstances was a recognition of the existence of a several fishery in the tidal navigable waters of the river Erne as a legal entity which could have existed only if the original grant of the fishery had been made by James I in exercise of his royal prerogative as a conqueror before Magna Charta had been promulgated in Donegal ; or if the statutes for confirming defective titles had been generally recognised and construed as applicable to the ffolliott grants ; and I hold that I am not only empowered, but bound, to adopt that interpretation of the language of the statutes 10 and 15 Car. I which will uphold the possession and dealings of three hundreds as legal, provided always that the language of the statutes is reasonably capable of such an interpretation. It may be observed that the fishery was not the only, or even the principal, hereditament comprised in the grants with which we are concerned. It was only severed from the ffolliott estate in 1869, when the great possessions of the Right Hon. Thomas Connolly were sold in the Landed Estates Court. His father the Right Hon. William Conolly had purchased the ffolliott estates in 1719, but, if the ffolliott grants were invalid as being outside the purview of the Caroline statutes for the strengthening of defective titles, it is not the title to the fishery alone that has been undermined by this decree, but that to all the property comprised in the grant to Thomas Lord ffolliott. The fact that the Right Hon. William Conolly paid the repre-
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sentatives of Lord ffolliott 48,000 pounds for their property in 1719, and that the predecessors of the present plaintiffs purchased this fishery in the Landed Estates Court for the sum of over 45,000 pounds in 1869, and took a conveyance from the Court, cannot affect the rights of the parties, inasmuch as this Court has already decided that the Landed Estates Court conveyance passed only whatever rights the purchasers might be able to prove had been possessed by Thomas Conolly, and that the consideration for their 45,000 pounds was nothing more than a barren rock in the Erne, and a right to whatever they might be able to establish their title by litigation. That decision binds me, and I accept it ex animo, but I do not read the speeches of the Lords in Mercedy and Others v. Alexander and Others (1) as deciding what was not before their Lordships' House, or in question in that action, viz. the title of the purchasers under the Landed Estates Court conveyance to a several fishery in the tidal waters of the River Erne at Ballyshannon, which at the date of that decision had been actually possessed and worked by their vendor and his predecessors for two and a half centuries ; and I feel considerable doubt whether, if it had been proved to their Lordships, as it has been in this case, that Conolly and his predecessors in title, and his successors, the plaintiffs in Mercedy and Others v. Alexander and Others (1), had been in actual uninterrupted and exclusive enjoyment of the disputed fishery for three hundred years, and the Marquis of Ely had been an intruder of yesterday, they would have come to the conclusion at which they did in fact arrive. On the other hand, it seems to me that each of the Lords, with perhaps the exception of Lord Bramwell, did express and opinion, obiter though it was, that the Landed Estates Court conveyance was effective to pass "an existing subject which was in lease to the tenants named Shiel" ; "the existing and known Ballyshannon salmon and eel fisheries which were separated from the riparian rights by means of the enjoyment of the lessees, and had therefore in that way a real existence at the time when the deed was made" ; "a distinct subject of conveyance . . . that Ballyshannon salmon and eel fishery of Thomas Conolly as to which the leases and tenancies are reserved at the end, and which appears by this schedule to have been a known and existing thing, but which did not include in point of fact Lord Ely's waters : per Selborne L.C. Lord Blackburn says :--"On the very face of the instrument by the reference, which the Lord Chancellor has pointed out, to the two leases which are given, it shows
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that there were de facto existing fisheries of the sort which I have mentioned, both in the tidal and in the non-tidal part. It is expressly mentioned in the first lease that there is a salmon fishery in Ballyshannon 'through the whole extent of the River Erne and the waters therof and the river commonly called or known by the name of the Abbey River and the waters thereof and all other rivers and watercourses having communication with the said Rivers Erne and Abbey where salmon is known to breed and cast spawn.' That plainly is a grant enjoyed by Shiel of a salmon fishery in the tidal part and in the non-tidal part ; and embraced within it there is what is called for shortness the salmon fishery of Ballyshannon." He then proceeds with a passage which I will not quote, but of which every word is important, and concludes : "I say, what does that mean when we know as a matter of fact that there was a separate and several fishery de factosevered from the right to the river and everything else and de facto enjoyed. It seems to me that, when once you have got that fact brought before you, these words mean neither more nor less than if they had been "I grant firstly the salmon fishery called the Ballyshannon fishery enjoyed by Alicia Shiel.'" Lord Bramwell's argumentum a perpostero would scarcely have been employed if he had seen, as we have, the earlier Crown grants in which the identical rights the grant of which he says "is preposterous on what one may call the face of it" were actually granted, with even more extensive ones, to the parties from whom Conolly had purchased them in 1719. Lord Fitzgerald says that "what was described here and what was intended to be conveyed is not general and exclusive from one end of the River Erne to the other, from its source to its mouth, but that fishery which Thomas Conolly had, And which it appears equally clearly from the conveyance was in the hands of the lessees. In fact the leases to the Shiels reserved all that he had ; and what the party here claims, and what he got by the conveyance, was first the rent of 1,200 a year reserved by the lease to the Shiels, and, when the Shiels lease terminated, the right to the reversion and enjoyment of that which they had, namely the Conolly fishery." No one can doubt, upon the documents and the evidence now before us, that at the time of the execution of this conveyance Thomas Conolly had an extensive and very valuable fishery popularly known as the Ballyshannon fishery, and which was probably derived at some unknown period from a royal grant. I say so because we find that there was a quit rent reserved and we know that in Ireland quit rents |
were only reserved in grants from the Crown. We know also that, in addition to this fishery at the mouth of the river, a fishery in the upper waters is only valuable as a breeding ground for the fish which will eventually descend the river and come up again and be captured at the weirs ; but we know from the succession of Caldwell deeds that Thomas Conolly acquired certain riparian rights quite consistent with the rights of other riparian proprietors. Those rights were what the Shiels had under lease ; those rights were what was bargained for, and for which the purchaser gave 45,000 pounds ; and we give full effect to that transaction." The Lords held, affirming the Common Pleas Division, that certain eel-fishings in non-tidal waters of Lough Erne, which neither Thomas Conolly, nor, so far as the evidence went, any of his ffolliott predecessors, had ever enjoyed or possessed, but which had been continuously enjoyed and possessed by the Marquis of Ely as a riparian proprietor, did not pass under the comprehensive words of the Landed Estates conveyance, but the passages which I have cited show that the Lords did not express any doubt that the Ballyshannon fishery which was at the time under lease from Conolly to the Shiels, was effectually conveyed to, and vested in him by the Landed Estates Court conveyance. As I have already said, the opinions expressed by their Lordships were only obiter as regards the Ballyshannon fishery, and the decision of this Court has concluded the matter so far as we are concerned. Upon the whole case, while I agree with the other members of the Court that there is no evidence from which we could presume that a several fishery existed in the tidal navigable waters of the River Erne at any date prior to the year 1189, I consider that, upon the true construction of the statutes 10 Car. I and 15 Car. I and the Letters Patent to Thomas Lord ffolliott, there was a valid grant of the several fishery claimed in this action, and I express no opinion upon the question whether a valid grant was made either by Queen Elizabeth or by King James I, or by King Charles I before the restrictions imposed by Magna Charta upon the exercise of the royal prerogative were extended to what is now the county of Donegal.
Solicitor for the plaintiffs : R. H. Reid. Solicitor for the defendants other than the Attorney-General : F. Gallagher. Solicitor for the Attorney-General : Chief State Solicitor.
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