Fish, historians and the law: the Foyle Fishery case

Published in 20th-century / Contemporary History, Features, General, Issue 6 (Nov/Dec 2009), Volume 17

Fishermen mending nets on Lough Neagh, Co. Antrim, c. 1900. A legal case involving the Bann fishery was heard on two occasions before the House of Lords in 1911. (National Photographic Archive)

Fishermen mending nets on Lough Neagh, Co. Antrim, c. 1900. A legal case involving the Bann fishery was heard on two occasions before the House of Lords in 1911. (National Photographic Archive)

The River Foyle was one of Ireland’s richest salmon fisheries. Alleged poaching had always been a problem, and in the 1940s the paper-title holders decided to seek a declaratory order to establish their proprietary rights beyond dispute. The action had been three years in preparation, it ran for 48 days in the High Court (from December 1947 to March 1948) and both parties relied heavily on historians to prove their respective rights.

The issues 

The plaintiffs claimed private ownership of the tidal fisheries of the Foyle. Generally tidal waters were open to the public to fish freely unless they had been ‘put in defence’, a technical term meaning that the Crown had taken the fisheries into private ownership. But under the terms of Magna Carta that could not happen after 1189. The historians’ task in all fishery cases was to establish whether or not the waters in question could have been taken into private ownership by the Crown before that date. Had Henry II’s knights reached the Foyle before 1189, and had the king taken ownership of the Foyle waters? And if he had, the plaintiffs also needed to establish title from the Crown. The plaintiffs exhibited an inquisition taken at Derry on 23 November 1602 that established Elizabeth I’s ownership. The Irish Society then showed that James I had granted it the fishery by letters patent in 1613 and that Charles II renewed these rights in 1662. They also exhibited the Anglican bishop of Derry’s rights to the fishery, which had merged with those of the Irish Society.
The fishery remained enormously valuable. Up to 1823 the annual salmon catch amounted to 40 tons, which more than trebled to 140 tons owing to the increased use of stake-nets, drag-nets and better protection of the river during the spawning season. That commercialisation of the fisheries led to a more rigid approach towards the prosecution of poachers. In the 1830s the Irish Society’s solicitor had travelled from London with a trunk of title deeds, which he used to successfully prosecute Donegal poachers. Over the course of the nineteenth century, local and legislative developments first encroached on and finally deprived local fishermen of their customary rights, and a fisheries act in 1842 made it easier to establish private ownership of a fishery by twenty years’ possession. Following a number of cases from 1922 to 1945, the stage was set for yet another battle in the courts.
Anxious not to re-run old arguments about conquest and plantation, Frank FitzGibbon KC for the plaintiff’s legal team endeavoured to show that the Irish Society could not be equated with the old plantation company. It had initially been established for profit but since 1830 it was, he stated, ‘an imaginary institution’, making no private profit and applying its resources, assets and income to charitable purposes on a non-sectarian basis. Very large grants had been made to the Protestant Foyle College but St Columb’s Catholic College also received funds, as did the St Vincent de Paul and other Catholic charities.

James I—amongst the many documents produced by the Irish Society to back up its claim to private ownership were letters patent from King James granting it the fishery in 1613. (National Portrait Gallery, London)

James I—amongst the many documents produced by the Irish Society to back up its claim to private ownership were letters patent from King James granting it the fishery in 1613. (National Portrait Gallery, London)

In defence the attorney general claimed that the waters were tidal, and that the existence of a private fishery prior to 1189 could not be established in the historical record. The seventeenth-century letters patent, insofar as they purported to grant such alleged fisheries, contravened Magna Carta and could be deemed null and void in law. When thrashing out the main issues, both sides employed teams of historians who researched the Anglo-Norman invasion of Ulster and when the common law first applied to the Foyle waters. If it was impossible to show that the waters had been outside the remit of the common law, was it possible to show that under Brehon law private owners could hold tidal waters? These were the questions for the historians to address.

Expert witnesses
Both sides began assembling teams of expert witnesses. Professor Theo Moody (Trinity College, Dublin) had drawn extensively on the Guildhall records of the Irish Society for his book on the Londonderry Plantation in 1939. To return the favour, Major Leslie Cyril Landragin, secretary of the Irish Society, asked him to head his team. For the defence the attorney general employed the services of Professor Robin Dudley Edwards (University College Dublin), the veteran warhorse of such actions. The respective reactions of Moody and Edwards reflected their personalities. Edwards initially sent a letter to the attorney general in which he questioned the validity of chapter 16 of Magna Carta in great detail and effectively presented a strong argument in support of the plaintiff’s case. He also suggested compromises but still agreed to act. Edwards demanded 300 guineas for each expert witness for three months on the basis that ‘a historical expert’s services were equivalent to those of a senior counsel’. Moody in contrast felt obliged to assist the Irish Society, which had opened its archives to him, and received a pittance for his work. Professor Jocelyn Otway Ruthven (Trinity College, Dublin) acted as Edwards’s chief researcher.
Moody had the more difficult task, as he had to marshal the hundreds of documents to establish the plaintiff’s title. By December 1945 he had recruited William O’Sullivan, later Keeper of Manuscripts in Trinity, and Revd Dr O’Doherty, a Maynooth expert on medieval Donegal, while Nellie MacNeill O’Farrell undertook the task of locating materials in the Public Record Office in London. Moody had a fraught relationship with these experts. Fr O’Doherty’s bishop instructed him to withdraw, as he did not want a priest of his Raphoe diocese giving evidence against the fishermen.
Moody asked Daniel Binchy, the outstanding scholar of early Ireland, to join the plaintiff’s team. Binchy had previously been a witness for the attorney general in the Erne case and had changed his opinion on the possibility of a several fishery in the Brehon law. He disagreed with Chief Justice Kennedy’s statement in the Erne case that Roman and Brehon law vested salmon-fishing rights in the inhabitants of the tuath. Binchy’s newly formed view was that in Brehon law the right to fish in any given river was primarily in the family to whom the riparian land belonged as hereditary property and that they exercised that right by the erection of weirs.

The trial
George Gavin Duffy, son of the nineteenth-century nationalist politician and Young Irelander, tried the case, and his subsequent judicial pronouncements gave some indication of his leanings and prejudices. The trial ran for over 40 days, and the slow pace of the evidence must have tried the judge’s patience. The parties agreed on a vast array of documents—almost entirely prepared and supplied by the plaintiff—prior to hearing. Moody, the plaintiff’s expert witness, prepared a meticulous, low-key and well-prepared brief. Edwards, in contrast, gave a vintage, discursive performance in the witness box, which included a blistering condemnation of Tim Healy. Edwards paid no attention to the fact that the judge and Healy were related, a fact of which he would have been aware given the intimate nature of Dublin society at that time. Gavin Duffy and Edwards had continuing clashes, but Edwards’s views obviously interested the judge and he intervened to ask a number of questions.
The experts hardly agreed on anything, and all paraded their credentials as having sat at the feet of the masters in that field—Thurneysen, Zimmer, Kuno Mayer and Strachen, in universities from Freiburg and Berlin to Oxford and beyond. Binchy was always going to be in difficulty in cross-examination. George Murnaghan SC for the fishermen-defendants led the charge. He referred back to transcripts of the evidence in the Erne fishery case where Binchy had agreed with Eoin MacNeill, who had died in the intervening years. Murnaghan reminded Binchy of the latter’s opinion in the earlier cases regarding the absence of any reference to private right to tidal waters in Brehon law. Binchy concurred on the Erne case but claimed that neither MacNeill nor himself had adverted to the passage in the published text about the law of an estuary or the rule or right of an estuary. Murnaghan finally got Binchy to agree that the expert opinion of Brehon law was at best ‘only plausible speculation’, thereby demolishing the probative value of his evidence and as an expert to assist the court.

The judgement

The expert witnesses outside the Four Courts—for the defence Professor Robin Dudley Edwards (left), University College Dublin, and for the plaintiffs Professor Theo Moody (right), Trinity College, Dublin. (James McGuire)

The expert witnesses outside the Four Courts—for the defence Professor Robin Dudley Edwards (left), University College Dublin, and for the plaintiffs Professor Theo Moody (right), Trinity College, Dublin. (James McGuire)

Gavin Duffy’s judgement ran to over 100 pages and he held for the defendants. Only a short version appeared in the law reports, though some of the more colourful parts are of historical interest. He held that the Irish Society had a documentary title but that a possessory title could not displace a public right to fish in tidal and navigable waters. He emphasised the fact that the onus of proof lay with the plaintiffs and they had failed in that. In his judgement he made no attempt to grapple with the evidence of pre-plantation historians. On the long saga of Brehon law he commented that ‘I need not now investigate the erudite evidence of the sages of the Brehon law as to the meaning and implication of certain ancient law texts where the boundary line between conjecture and clear inference is still hard to draw’.
The claim for a declaration of title failed, the trespass action failed and the judge awarded costs to the defendants. Duffy’s full, comprehensive transcript of the judgement noted that the Flight of the Earls had left Ulster defenceless but that the Crown had never claimed rights by conquest. He then described the fishery and the early charters and accepted Magna Carta’s authority in relation to fisheries rights. He mentioned James II’s ‘Patriot Parliament’ (Dublin, May–July 1689), which repealed Charles II’s Acts of Settlement, specifically section 40, which dealt with the Irish Society. Despite some informality it was, he said, ‘a valid parliament’. In 1695, however, a Dublin parliament declared the acts of James’s parliament void, and the judge also reminded the historians that a further act to effect retrospective changes had been passed in 1795, that ‘validated grants hereuntofore made of Irish lands and hereditaments under the great seal of England’. This essentially validated grants made without any parliamentary statutes.

The aftermath
The Irish Society appealed the judgement in February 1949 but never proceeded to the Supreme Court. Instead, a compromise was arrived at. The two governments jointly purchased the fishing rights claimed by the Society for £100,000, payable in equal shares by both parties. A new authority, the Foyle Fishery Commission, was established, with four officials, two from each jurisdiction. Since then the regulation of the fishery has worked well and is a rare example of North/South cooperation from a period when the general histories almost routinely record that there was no communication between Belfast and Dublin. The Foyle Fisheries Act passed into law in 1952 and brought this episode to an end, although further modifications were included in the 1998 Good Friday Agreement.
The Foyle case was the last major fisheries case in Ireland, although in the 1960s the IRA tried to make an issue of fishing rights and ground rents, linking both to ancient rights of conquest. Private fishery rights are still challenged occasionally in the courts and many fishermen still see fishing as a communal right. The Maybo case in Australia, where the justices recognised the native title of a geographically defined group to inherit land ‘against the whole world’ in 1992, has set in train a new method of approaching issues addressed in the Irish fisheries cases. Governments in former colonial lands around the world are now coping with this new phenomenon of indigenous rights. In Ireland the fisheries issue at a legislative level is now about conservation: the historians have returned to their archives.  HI

Tim P. O’Neill is a barrister on the midland circuit.

Further reading:

 

T. M. Healy, Stolen waters: a page in the conquest of Ulster (London, 1913).

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