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land whereon the old castle called O'Donnall's castle was built, within the lower part of the city of Derry, was formerly bought by O'Donell of the herenagh Laghlinagh, as being parcel of his herenagh land for twenty cows; and the said castle was built thereupon by O'Dogherty for O'Donnall's use, in consideration whereof O'Donall forgave O'Dogherty certain duties ; and that the said castle and ground thereof is now come to his majesty's hands and possession by the attainder of treason of Hugh Ro O'Donnall: and further the said jurors do upon their oaths find and present, that Nicholas Weston, of Dublin, alderman, is and for the space of four years last past or thereabouts, hath been in possession of the several parcels of lands and fishings ensuing; viz. the four quarters of land of Dowle, one quarter of land called Medowne, and one quarter of land called Koolekeragh, with the fishing of the fouchan, and other small fishings thereunto belonging; and that the said Nicholas claims the said lands and fishings by conveyance from sir Donogh O'Caban, unto which conveyance the said jurors do herein refer themselves; but whether it be good in law or no the said jurors know not: and further the said jurors do upon their oaths present and say, that all the lands, tenements, and hereditaments, lying within the county of the city of Derry, on the south-east side of the river of Loughfoyle, the land and hereditaments above mentioned to belong to any abbot, monasteries, or religious houses excepted, are lately come to his majesty's possession by force of the attainder of Shane O'Neale, made in the eleventh year of the reign of the late queen Elizabeth: and lastly, touching the several names of herenagh, termon and corbe, the said jurors do upon their oaths find and present, that all termon and herenagh lands within the said county, was at the first given by Collumkill and the succeeding abbots unto the several septs, before any bishops were known in this country, and the said lands were free, and had the privileges of sanctuary and other liberties, and were enjoyed by the sept in course of gavelkind. In witness whereof, as well the said commissioners as also the said jurors, have unto this part of this inquistion remaining with the said commissioners, set to their seals the day and year first above written. Arthur Chichester, H. Are maghanus, Geo. Deriens, Thomas Ridgway, H. Winch, Jno, Davis, William Parsons.
Exe, by me, JOHAN DENNING,
10 die Feb. 1703. Delivered into the Chancery of Ireland, the 6th Jan. 7 James.
Note.-Copies of five inquisitions in Latin, taken in or about the
year 1610, and of one in English taken in 1620, relating to : ecclesiastical property, and the fishings, &c. appear among the
records of the Irish Society, but they are much damaged by
THE FISHERY CAUSE
LATELY DEPENDING BETWEEN THE SOCIETY AND THE MARQUIS
OF DONEGAL, AND STATEMENT OF THE SOCIETY'S TITLE TO THEIR FISHINGS; WITH THE OPINION OF THE LATE SIR SAMUEL ROMILLY.
By DAVID BABINGTON, Esq.
LAW AGENT TO THE SOCIETY.
I HAVE had the honour of receiving a letter from you, as Secretary to the Honorable the Irish Society, mentioning their wish that I should furnish them with a statement of the case, and of the proceedings that have been had, and the steps that have been taken, from time to time, to protect their rights in the fishery of the river Bann, against the different attacks made upon them by the family of Lord Donegal, as the owners of another fishery in the same river, and in Loughneagh; a task which I undertake with very great pleasure indeed; for although the prospect was frequently gloomy, the business has at length been brought to a state so gratifying and pleasant to my feelings, that I am happy in an opportunity of doing what they require of me. · Loughneagh, which is one of the largest fresh water lakes in Europe, is situate in the province of Ulster in Ireland, and is bounded by the counties of Antrim, Armagh, Downe, Tyrone, and Londonderry, and it empties itself into the sea about three miles below the town of Coleraine in the county of Londonderry: the river by which it so empties itself is called the Bann, which in many parts is very deep and navigable, in others shallow and rocky, particularly near Coleraine, where the rocks are known by the name of the Fall, or Salmon Leap.
The whole distance from the lake to the sea, is about twentyfive Irish, and something more than thirty-one English miles.
Various grants appear to have been made, at different periods, of certain fishings in different parts of the lake and river, but I do not deem it necessary at present to go back above two centuries, as no prior grant has been acted upon or accompanied with possession, and of course no question will be likely to arise hereafter on any grant not followed by possession, or acted upon within that period; and although it might be most methodic to state the grants which I shall mention, as they run in order, according to their dates, yet with a view to be more clear and satisfactory, I shall state those on which the Society and Lord Donegal found their respective rights separately, and begin with those relating to the Society.
On the 20th of July, in the year 1605, a grant appears to have been made by patent to James Hamilton, esq. of one free fishing in the river Bann, every Monday next after St. John Baptist's day; on which day all fish taken in the river belonged to the dissolved priory of Coleraine; and a salmon every day yearly from every fisherman fishing in that river during the season ; being part of the possessions of said priory.
In the same month and year, another grant was made to Mr. Hamilton, of the entire fishing of the Lough and the Bann, to the Rock and the Salmon Leap, with some old eel weirs upon the Bann near Castle Toome, and all the islands of the Lough and river.
On the 2d of March, 1605, a grant was made to John Wakeman, of Beckford in the county of Gloucester, esquire, of the entire river, from the Salmon Leap to the sea, and the fishings thereof, with the Salmon Leap. • On the 3d of March, in the same year, Wakeman conveyed all that had been granted to him, to Hamilton ; so Hamilton being then possessed under his own grants of the Lough and river to the Salmon Leap, and under his purchase from Wakeman, of the Salmon Leap and river to the sea, he in fact had the entire of the Lough and river, with the soils thereof and every thing appertaining thereto, down to the main sea.
On the both of April, 1606, Hamilton sold to Sir Arthur Chichester, the fishing of the river between the Lough and the Salınon Leap that had been granted to him in the month of July, 1605.
On the 14th of May, 1606, Hamilton sold to Chichester one moiety of the fishery from the rock to the sea. 1: On the 3d of April, 1611, Chichester sold and surrendered all his interest to king James the First; and his majesty made compensation to Hamilton, and got a surrender from him also ; and then the entire of the Lough, river, and Salmon Leap, became vested again in the crown.
On the 29th of May, 1613, the same king, by his letters patent under the great seal of England, constituted and created a certain number of citizens of London a corporation, by the name of The governor and assistants London of the new plantation in Ulster in Ireland ; which corporation has been since commonly styled the London Society, when spoken of or treated upon in Ireland, and is generally styled The Irish Society when spoken of in England.
By the said letters patent a large track of country, comprising numerous denominations of land, to be thenceforward called the city and county of Londonderry, and the fishery of the river Bann, from the sea to Loughneagh, and the soil thereof, and the
rock or Salmon Leap in the said river, were amongst a great variety of other things granted to the said Society.
The parts of the grant that relate to said fishery are extremely full, and give as extensive power of taking fish in every way possible as could be expressed by the Latin language, in which the grant was written.
These letters patent were duly enrolled in the proper offices in England and Ireland ; and from their date until the present time the Society and their successors, and those deriving under them, have uniformly possessed and enjoyed the rock or Salmon Leap, and that part of the river which lies between the rock and the sea : but it does not appear from any research I have been able to make, that they ever availed themselves of the grant of that part of the river which lies between the rock and the Lough, or ever were in possession thereof, and the reason why they did not will fully appear hereafter.
Some years previous to the breaking out of the Irish rebellion of 1641, King Charles the First, among many acts of a similar kind, as the history of that day fully tells us, caused informations to be filed by his attorney-general against the mayor, commons, and citizens of London, and against the Society, governor and assistants of the new plantation in Ulster, complaining, amongst other charges, of irregularity and misrepresentation in the manner of obtaining the letters patent of the 29th of March, 1613, alledging that King James was deceived therein.
Upon hearing these informations in the star chamber, about the tenth year of the reign of the same King Charles, the mayor, Society, &c. were sentenced to pay a fine of £70,000; and a scire facias issued in pursuance of said sentence to repeal the grant and charter, on which judgement was had in the court of chancery of England, and a decree pronounced, whereby the letters patent and the enrollment thereof were declared void, and ordered to be cancelled, and possession was ordered to be taken from the Society and companies of London, and the enrollment of said letters patent in England was vacated accordingly : but the enrollment in Ireland never was vacated, nor does it clearly appear that the possession was changed; on the contrary I believe it was not, but that the Society was mulcted in a sum of money under the name of composition: a practice very familiar at that time.
The city of London conceiving the proceedings in the star chamber and chancery grievous, petitioned the house of com. mons, and on the 26th of August, 1641, it was voted and resolved, that the sentence and order of the star chamber were unlawful, as well against the mayor and commonalty of the city of London as against the Society of the governor and assistants London of the new plantation of Ulster in Ireland:
That the king was not deceived in the grant, or in creating the Gorporation called the Society of the governor and assistants London of the new plantation of Ulster in Ireland, and that the king had nor granted more lands by said patent than he intended
to grant thereby. The house then proceeded to assign reasons, and amongst others gave the following:
« That breach of covenant (if any such had been) is not suffi,« cient cause to forfeit lands; breach of covenant being no crime, « but tryable in ordinary courts of justice.
“ That the star chamber had no power to examine freehold, .« or determine breach of covenants or trusts. 16. That the sentence against the two corporations aggregate, “ no particular person being guilty, was contrary to law, and 6 every other article was in like manner illegal.
“ That the sentence of the star chamber was unlawful and « unjust; and the composition with the city made on such terms, " in time of extremity, ought not to bind it.
“ That when the king repaid the monies received on the com« position, and such rer.ts as he received by colour of the sen66 tence, that then he should be restored to the same state he was “ in, and the patent surrendered.
“ That the citizens of London, and all against whom the judge“ ment in scire facias was given, should be discharged of that “ judgement.
* And that the citizens of London, those of the new plantation, « all their under tenants, and all those put out of possession by the « sequestration, or king's commissioners, should be restored to the “ same state they were in before the sentence in the star-chamber.”
In the fourteenth year of the reign of the same king, a special patent passed under the great seal of England, whereby, after reciting the proceedings aforesaid, his majesty pardoned, forgave and exonerated, and released the said mayor, &c. and their successors, from the said fine of £70,000.
On the 24th of March, 1656, the Society of the governor and assistants were restored to the said river, Salmon Leap, &c. by letters patent, dated at Westminster ; but it does not appear that the Society ever availed themselves of this grant, owing, most probably, to the circumstance of its having been made by Cromwell, their being previously in quiet possession, and the Restora. tion following soon after.
On the 10th of April, 1662, by letters patent under the great seal of England, after reciting the patent of 1613, snd that the Society by virtue of a licence under the same seal, dated the 30th of September, in the thirteenth year of the reign of the late king, had granted to the twelve companies of London several parcels of the estates that had been granted to the said Society, who had retained other parts not properly deviseable in their own hands; and also reciting that the said letters patent had been repealed in the court of chancery, and that King Charles the First had agreed to restore the premises to the said Society, which intention was prevented by the troubles (but without taking any notice whatever of the patent of the 24th of March, 1656), King Charles the Second reincorporated the said Society by their former name, and granted and confirmed to them and their successors all that had been given to them by the former