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W ITH

A COMPARATIVE EXAMINATION
INTO THE

USAGES OR

OF

LAWS

OF DESCENT

THE PEERAGE OF

ENGLAND, SCOTLAND,

AND

IRELAND:

BY

EDWARD,
PREMIER

LORD ATHENRY,
BARON

OF IRELAND.

LONDON:

J.

BOOKER, NEW BOND STREET.
1833.

" To people the country so as no estate be made larger to any
but to them and the heirs males of their body .. .
"That upon information given of the dispositions of the Irish
Captains to surrender their lands, they may have estates in tail, by
letters patents under the great Seal of England, to them and the
heirs males of their body."-Instructions of Queen Elizabeth to the
Earl of Sussex, Lord Lieutenant of Ireland. 2nd Eliz. p. 2 and 4.
"For the Lords Temporal, though there are yet but few, yet was
their number less before King Henry VIII. was styled King of Ireland. For since that time, divers of the Irish nobility, and some descended of English race, have been made Earls and Barons." P. 186.
-Inaugural Speech of Sir John Davis, when elected Speaker of the
Irish House of Commons in 1613. PrintedCollection of Original
State Papersin the Royal Library,presented to the British Museum.

-Hibernia.

TO
THE DUKE OF LEINSTER

(BARON OF OFFALEY);

THE MARQUISSES OF
LANSDOWNE (LORD OF KERRY), ORMOND (BARON OF ARKLOW),
AND WESTMEATH (LORD OF DELVIN);
THE EARLS OF
FINGALL (LORD OF KILLEEN), AND HOWTH (LORD OF HOWTH);
THE VISCOUNTS
BARRY OF BUTTEVANT, ROCHE OF FERMOY, AND
GORMANSTON (LORD

OF

GORMANSTON);

AND THE LORDS
KINGSALE, SLANE, AND DUNSANY.

My

LORDS,

Having, by his Majesty's command,
proved before the high legal officer, to whom his
Majesty was most graciously pleased to refer
my claim to the dignity held from time
morial by my ancestors, and that.public
functionary having officially reported, that I am
the heir male of the Lords Birmingham of
Athenry, Premier Barons of Ireland, I hold my

imme-

precisely
heirs-

the same right by which
peerage by
male of the persons first
you all, as
hold your ancient dignities; namely, by

nobled,

en-

the usage and law of Ireland, the sole regulator
of the ancient peerage of Ireland.
By one of the provisions of the A~t of Union,
it is declared that no peer of Ireland shall have
the privilege of voting

for representative peers,

A2

until he shall have proved his right to do so at
the bar of the House of Peers. To this form,
therefore, we must all submit when we wish
to exercise that particular privilege.
But
this law does not, in any way, deprive those
amongst you, who have inherited your peerages in strict accordance with the law of Ireland, and who have not yet thought it necessary to claim that privilege, from enjoying all
the other privileges attached to your birthright.
To you, my Lords, any explanation of the
indefeasible right from which you derive that
noble inheritance, is unnecessary; but as misrepresentations upon the subject have been
studiously circulated, it has become necessary
to meet them by a plain statement of facts, which,
although familiar to your Lordships, and well
known in Ireland, may perhaps be new to the
generality of the English public.
I have the honour to be,
My Lords,
Your faithful and obedient servant,
Dalgan House,
County of Galway,
1st July 1833.

***

ATHENRY

The usage adopted at the election of representative
peers for Scotland, of summoning the whole roll of ancient
peers, whether in the present enjoyment of their dignities or
not, will explain the principle upon which I have inserted the
full list of the ancient Barons, to whom I address myself.

ANCIENT BARONAGE OF IRELAND,
S'

Sc.

THERE does not exist either in England, Scot-

land, or Ireland, any positive law or enactment
regulating the descent of peerages. That question has therefore always been decided, either
by the general usage, or lex loci, of each country;
or by the terms of the instrument by which each
peerage was created, if it can be produced; or
by precedents, in individual cases, of a former
course of descent varying from and controlling
the general rule with regard to those particular
peerages.
In England, where, owing to the regularity and care with which the public records
have been preserved, the date and mode of creation of every peerage can be proved by record,
the descent of the great majority of its peerages
is regulated by the limitations contained in their
respective patents of creation. The remainder,
which are termed peerages by writ, or in fee, as
they originated in a form peculiar to the usage
of England, so their descent has also been regulated solely by the same rule. A royal writ of
summons to a commoner selected by the king
to attend the Parliament of England, followed
by obedience to that summons, has, without any
intimation of any ulterior intention or effect
contained in the terms of that writ, been enabled, by the mere force of usage, to create an

6

hereditary peerage; and the same law of usage
has determined the descent of the dignity so
created to the lineal heirs, whether male or
female, of the person so ennobled.
The Committee of Peers selected by the
House of Lords, to enquire into and report upon
the nature of the dignity of the Peerage, (certainly the highest authority upon such a subject,) after the most elaborate investigation, state
it to be their opinion that until the reign of
Richard II., no peerage was considered in
England to be inheritable, as of right, by a
female.
" From this and many other corresponding
circumstances," they say in their 3rd Report,
p. 195, " there seems ground to infer that the

dignity of the Peerage was not at that time
(11th Edward III.) considered as being capable
of being claimed as the right of a female by
descent; but on failure of heirs male, whether
there was only one, or there were many heirs
female, the dignity was considered at the king's
disposal."
And again, p. 209 : " The recital in this
patent, that 'William Earl of Suffolk had died
without heirs male, without mentioning whether
he had left heirs of the body of his father or
not, may perhaps be deemed to shew that the
grant of a dignity to a man and his heirs was
then (9th Richard II.) considered as a grant to
heirs male only, unless the king .should think
fit to extend its operation to heirs general."
In treating of baronies by writ, these noble
reporters state, that " it seems to be only an
inference of law derived from usage, which has
extended the operation of such a writ beyond
the person to whom it was directed."

In their 4th Report, p. 341, they say: "The
first decision on the subject seems to have been
in 1673, on the claim of the dignity of Lord
Clifton; and the House, by referring the case
to the consideration of the Judges, may be considered as having had doubts what ought then
to be deemed the law on the subject, and as
having treated the question as a question of
difficulty. Before that decision the law cannot
be deemed to have been clearly settled; but on
what ground the Judges gave their opinion that
the honour descended from Jarvis Clifton to his
daughter and heir, does not clearly appear; and
if they had before them all the cases in which
the heirs of a person summoned, had not been
afterwards summoned, they must have conceived
that those heirs had been unjustly deprived of
their right of inheritance, unless they fixed on
some point of time when they conceived usage
had created a new law on the subject."

Thus we find that the usage of England forms
the sole rule and law for regulating the descent
of English Peerages.
In their 1st Report, p. 391, the Lords' Committee state that: " In the 5th of Richard II.,
an ordinance was made, giving further sanction
to the recognition of rights founded on usage in

forming the legislative assemblies of the realm."
That the ancient law of Scotland, derived
equally " by inference" from its general usage,
coincided with the ancient law of England in
limiting its peerages to heirs male, was decided
by the House of Peers ii 1762, in the'case of
the Scottish Peerage of Borthwick.
Henry Lord Borthwick, claiming to be a Peer
of Scotland, presented in 1762 a petition to the
King, to the following effect:

8
" That it appears from ancient writings and
from the records and most authentic history of
Scotland, that Sir William Borthwick was created Lord Borthwick, between 1422 and 1430,
long before any patents of honour were in use;
and as by the law of Scotland these antient peerages have been considered as malefiefs, descending
to the heirs male of the personfirst ennobled, so
this title descended lineally from father to son,
to John the 9th Lord Borthwick, who dying
without issue in 1672, the title thereby devolved
on the heir male of Alexander Borthwick of
Nenthorn, who was second son of William, the
third Lord Borthwick, &c."
This petition was referred to the House of
Peers, who, on the 8th April, 1762, " Resolved,
that the petitioner hath a right to the title,
honour, and dignity of Lord Borthwick, as heir
male of the body of the first Lord Borthwick."
That an exception to the general usage may
exist, without in any way affecting the general
law established by that usage, was equally decided by the resolution of the House of Peers
upon the Scottish Peerage of Sutherland on the
21st March, 1771.
This earldom was the subject of contention
between the heir male and the heir general of the
family of Gordon. Upon investigating the ancient documents relative to the earldom, it was
discovered that it had not originally been conferred upon the family of Gordon, but upon
that of Sutherland; but, that owing to the negligence of the heir male of the family of Sutherland, or to some other unknown cause, it had in
one instance been allowed to deviate from the
general usage of the ancient peerage of Scotland, and to descend, with an heir general, to

9

the family of Gordon, in which it had continued
until then. The House of Peers adjudged the
earldom to the heir general of the family of
Gordon, who was also heir general of the family
of Sutherland, on the ground that it had so descended in opposition to the general usage,
" without any objection on the part of the male
line" of the family of Sutherland.
The justice of the principle of this decision is
evident; for the male heir of the family of Gordon, was not either the male heir or the heir
general of " the person first ennobled" by the
title of Earl of Sutherland, and consequently
had no just claim to the title, either according
to the usage of Scotland which limited peerages
to "the heirs male of the person first ennobled,"
or according to any other law of peerage.
The Lords Committees of the Peers have,
throughout the whole of their elaborate and admirable reports upon the dignity of the peerage,
insisted upon, and clearly established the point,
that the whole constitution of the peerage is
founded upon and regulated by usage: and that
it is the usage of England alone that has given
to writs of summons to parliament in England,
an effect which is neither expressed nor implied
in the words of the writ; namely, the creation
of an hereditary dignity, and the descent of that
dignity to female heirs, from whom it would be
absurd to expect the performance of the only
duties required by the writ.
The House of Peers, guided by the same principle of usage, has by its adjudication of the
Barony of Clifton, in England, to the heir general,and of the Barony of Borthwick, in Scotland,
to the heir male of " the persons first ennobled,"
established it to be the fixed law of the peerage,

10

that all dignities for which patents of creation
and limitation cannot be produced, descend according to the lex loci, or general usage of the
country from which they are derived; except in
individual instances for which a precedent to the
contrary can be produced.
Upon precisely the same principle, but upon
much stronger grounds than could be produced
for either the English or Scottish decisions, the
House of Peers of Ireland, which, until the union,
was the sole tribunal of jurisdiction in Irish peerages, by its unanimous adjudication of the Barony of Kinsale to the male heirs of the family of
De Courcy, in 1721 and 1762, and of the Barony
of Dunsany in 1782, to the male heir of the family of Plunket, Lord Dunsany, decided that it
was the usage and law of Ireland that its ancient
baronies of unascertained origin, are "considered
as male fiefs, descending to the heirs male of the
person first ennobled." I have said that these
decisions of the House of Peers of Ireland, although exactly coinciding in their principle with
those of the English House of Peers, namely
the lex loci, or general usage of the country to
which the peerage belongs, were given upon
much stronger grounds. This assertion is of easy
proof. Previously to the decision of the Clifton
case, which established the law ofpeerage in England, there had been numberless inconsistencies
and exceptions, and some contradictory decisions
upon the subject, which, as the Lords' Committee remark, rendered it a case of doubt and
difficulty to decide what the usage and law of
England really was with regard to its ancient
baronies; and, even in that very case which
settled the question, the Judges, when consulted,
avoided, as the same noble personages observe,

I1I

stating any grounds for the opinion which they
delivered.
Even in the decision upon the Scottish peerage of Borthwick, there were several exceptions
to the general rule of the male descent of the
ancient Scottish peerages, of which the peerage
of Sutherland has been proved to be one.
But the decisions of the House of Peers of
Ireland had no such difficulties to encounter.
The usage of Ireland with regard to its ancient
baronies, was marked in a way that could not be
denied or doubted. It was clear as the sun
at noonday. Several of its most ancient baronies,
dating their origin from the time of Henry II.
and King John ; that of Delvin, from the reign
of RichardII. ; and those of Killeen, Howth, and
Dunsany (the junior of all) from the reign of
Henry VI.; were all found in existence at the
accession of Henry VII, vested in the respective " heirs male of the persons first ennobled."
From that epoch, and by Poyning's law, the
legislative body of Ireland was reduced to the
form which, with few exceptions, it retained
until the union in 1800. The peers of the realm
assumed their separate and distinct legislative
capacity; and could no longer, from any accidental circumstance, be confounded with the
commoners, who had formerly been summoned
to assist in their deliberations.
During this period, that is, for above three
centuries, the whole of these ancient peerages,
without one single exception, have continued to
descend to the heirs male of the individuals in
whom Henry VII. found them vested; and
during all that time, eleven out of the thirteen
have so descended "without any-objection on the
part of the female heirs."

12

In two instances only has this essential principle of the ancient peerage of Ireland ever been
even attempted to be violated; and in both cases
the attempt was made in vain.
In the 3d of Elizabeth, James Fitzjohn, Lord
Barry of Buttevant, or as he was indifferently
stiled, Viscount Buttevant, left an only child,
Catherine, who was married to Richard Lord
Power. The Lords Power, in right of this marriage, afterwards claimed the title of Buttevant,
but without success; and that dignity has ever
since continued to descend in the male line of the
family of Barry. An ancient MS. in the Lambeth Library, supposed to be written by Carew,
Earl of Totness, thus states the fact, fol. 155.
"The Lord Power, in Queen Elizabeth's reign,
commenced suit for the lordship against David,
late Lord Barry, in the right of his wife, as heir
general to James Fitzjohn, Lord Barry, but
could prevail nothing thereby."

The Barony of Offaley also, was in the reign
of James I. claimed by a female heir; but this
second, and last attempt previous to the union,
to encroach on the usages of Ireland, met with
similar success. Fitzgerald Duke of Leinster
as "heir male of the person first ennobled," still
enjoys that very ancient barony.
In the cases which produced the decisions on
the barony of Kinsale, they peerage was not attempted to be claimed by the heirs general.
Had the English House of Peers, in the cases
of Clifton and Borthwick, such clear grounds to
act upon as these? Were the usages of England and Scotland so strongly marked? Were
they so universal, of such long standing, and so
totally free from all exception as the Irish House
of Peers found the usage of Ireland to be?

13

The decisions of the House of Peers of Ireland
upon the law of descent of the ancient baronies
of Ireland, created before the reign of Henry
VII., and of which the precise date and mode
of creation has not been ascertained, have been
clear and conclusive.
In the year 1721, and again in 1762, the successive heirs male of the family of De Courcy
preferred their claims to the ancient baronies of
Kingsale, Ringrone, and Courcy. In their respective petitions upon the subject, they alleged
neither writ of summons nor patent of creation,
but founded their right simply upon the ground,
that it was an ancient barony which "time out
of mind" had vested in the family of De Courcy.
The proceedings in 1721 do not appear; except
that the petition of the claimant, and the unanimous decision of the House of Lords in his
favour are given in the Lords' Journals of that
year.
In 1762, the heirs general of the former lord
opposed the succession of the claimant, not upon
the ground of any claim to the peerage on their
own part, but upon the allegation that the claimant was not the heir male of the family of De
Courcy. His petition was referred to the lawofficers of the crown. Their report upon it has
been printed by order of the House of Peers, and
is open to the inspection of all. I shall, therefore,
extract only two passages from it, namely, the
commencement and conclusion. "The said petitioner sets forth, that petitioner's ancestors have,
time out of mind, been Peers and sitting members
of the House of Lords of this kingdom. (p. 4.)
"On consideration of the several pedigrees, certificates, and affidavits above-mentioned, which
we have annexed to this our report, it clearly

14

appears that the baronies of Kingsale and
Ringrone are ancient baronies vested in the
family of De Courcy, and have always descended
in the male line of that family." (p. 12.)
This report agrees in every material point
with the decision of the English Lords Commissioners in 1627, upon the barony of Kingsale. --See the King's Privy Seal letter of
that year, confirming their decision "in all
points."
The House of Lords acted upon this report,
and Lord Kingsale took his seat accordingly as
second Baron of Ireland.
But it may be objected, that the barony of
Kingsale being one of the most ancient peerages of Ireland, taking precedence of the barony
of Kerry, which was declared by the English
Lords Commissioners in 1615 to be as "ancient
as the conquest of Ireland ;" and having notoriously during that long period always vested in
the family of De Courcy, the right of the male
heir of that family could not well be disputed:
but that the same circumstances and rule do
not apply to the junior baronies of more recent
origin.
A sufficient answer to this objection will be
found in the report of the law-officers of the
crown, and the decision of the House of Peers
of Ireland, upon the very last in creation and
precedence of the thirteen baronies in question;
namely, those that were found to be existing in
Ireland at the accession of Henry VII.
Randal Plunket, "stiling himself Lord Baron
of Dunsany," claimed in 1782, the title and
honour of Baron of Dunsany.
His petition (which, like those of the Lords
Kingsale, and unlike those of all claimants of

15

English baronies, alleged no creation either by
writ or by patent), was referred by the crown to
the law-officers of Ireland. Upon the 26th of
April 1782, Walter Burgh and John Fitzgibbon,
the then Attorney and Solicitor-generals, two
of the ablest lawyers that have ever filled those
situations in Ireland, reported upon his claim in
the following terms:
" That the evidence of the claimant's ancestors having sat and voted as Peers of Ireland
from the 9th of King Henry VII. to the commencement of the reign of William and Mary,
is clear and authentic; and that from the
precedence appearing from the Journals of
the House of Lords to have been taken by the
Lords Dunsany, there are strong grounds to
conclude that the said title and honours existed
in the claimant'sfamily so early as the reign of
Edward IV. That the proof that the claimant
is the lineal descendant and heir male of Patrick and Randal Lords Dunsany is sufficient,
and that upon consideration of said evidence,
we are of opinion that the claimant has fully
proved his title to the honours claimed by him,
and we see no objection to the granting the
peerage of the claimant."
The House of Peers decided in conformity
with this report, and Lord Dunsany took his
seat accordingly.
It is to be remarked, that such was the regular and unquestioned course of descent of these
peerages in Ireland, that even these three decisions would never have been called for but from
adventitious circumstances. Against the claimants in 1721 and 1782, there were allegations of
attainder; in the Kingsale case of 1762, there
was a disputed pedigree, which would never

16
have occurred in a country where traditional
genealogy is so accurately preserved as it always has been, and still is in Ireland, except
on account of the long absence abroad of the
claimant's branch of the De Courcy family.
But leaving for the present the decisions of
the House of Peers of Ireland out of the question, upon what ground, upon what principle,
are the usages of England and Scotland in the
regulation of their respective peerages to be
allowed the force of law, to be treated with respect and veneration, while the more clearly
defined usage of Ireland is sought to be treated
with disregard and contempt in the regulation
of Irish peerages?
A charge which a Peer of Ireland must consider as most unbecoming and insulting, has
been made against the House of Peers of Ireland, in a case lately placed upon the table of
the Imperial House of Peers, upon the part of
Mr. Bryan, in support of his pretensions to the
barony of Slane. It is no less than a charge of
ignorance, incapacity, and injustice, against the
whole body of the Peers of Ireland, in the unanimous judgments which they have passed in
favour of the claims of the male heirs of the
noble family of De Courcy to the ancient Irish
barony of Kingsale.
This charge would have been unworthy of
notice, except in consideration of the august
tribunal before which 'it has been preferred,
and of the signature of an Attorney-general of
Upon these
England being attached to it.
grounds, as well as because it involves the ancient and inalienable rights of thirteen of the
noblest families in Europe, with whose claims
the English public have hitherto had few means

17

of being conversant, I have deemed it necessary
to shew the nullity of the accusation.
Some otherwise respectable lawyers also,
since the Union, without sufficiently investigating the ancient history of Ireland, or consulting
the reports of the English Lords Commissioners
in 1615 and 1627, and those of the law-officers
of Ireland in 1762 and 1782, have inadvertently
taken it for granted that baronies by writ existed
in Ireland.
These deserve to be undeceived.

The sagacity and legal knowledge of the noble
framers of the Reports upon the peerage, are
admirably illustrated by the facts which will be
adduced from the parliamentary history of Ireland; facts which did not come under their
cognizance, as their inquiries were confined to
English peerages. For it appears clearly from
these facts, that in Ireland, where no usage
had ever arisen to affect or change the plain and
legal import of the words of a writ of summons
to Parliament, " the operation of such a writ
was not extended beyond the person to whom it
was directed," nor indeed beyond the one parliament to which the writ referred.
This variation in the usages of the two peerages is clearly and constitutionally explained
by the essentially different usages of the two
kingdoms in the mode of summoning their respective parliaments.
In England, no parliament could ever be convened " by the authority of any, except the
king alone," Blackstone, B. 1. c. 1; and as the
B

18

king is "the fountain of honor," his immediate
act in selecting an individual, and conferring
upon him so high a privilege, was naturally
construed to convey an ennobling effect beyond
the mere purport of the words of the writ. But
in Ireland, on the contrary, until the 10th Henry
VII., " the chief governor held parliaments at
his pleasure, which enacted such laws as they
thought proper." Idem, vol. 1. p. 102.
But although Ware, Leland, and all other historians and writers upon the ancient legislature
of Ireland agree with Blackstone upon this
point, which has been so entirely overlooked,
even by certain legal authorities since the Union,
still it may be useful to produce evidence of yet
greater weight. The act of the 11th Elizab.
sess. 3. c. 8. states "that before the statute of
Poynings, liberty was given to the governors to
call parliaments at their pleasure."

That the writs of summons to those parliaments, although issued, and now appearing on
the records, in the king's name, or "in the
royal stile," as Leland expresses it, were issued
without any participation or intervention whatever on the part of the king, is evident from the
terms of the statutes of the 29th and 34th
Henry VI.
The preamble to that of the 29th, declares
that " the custom of Ireland is and hath been time
out of memory that no lieutenarit, deputy, justice, or other governor shall appoint, support,
or hold any parliament more than once a year."
The statute of the 34th Henry VI. c. 6. goes
still further; for it enacts, that "if the governor
for the time being wishes to cause the king's writs

to be sent to hold another parliament or great

19

council in the said year, that it shall be lawful
to those who are summoned to stay away and
not to come to any such parliament or great
council, and that any thing done in such parliament or great council be void and held as
null by authority of the said parliament, and
this ordinance to continue for three years."
No constitutional lawyer will listen for a moment to the assertion, that any act of a subject
could be productive of an ennobling effect, or
that writs of summons to such parliaments
could possibly be creative of peerages; and it
will be clearly shewn that they were never so
considered. " No man, or number of men, without the king," says Madox, Baronia Anglica,
B. 1, c. 1, " can, or ever could, make an earl or
baron. To grant a baronial title, is an act of regality inseparable from the crown, and incommunicable to subjects ; that is, it was never yet communicated."
So long therefore as the parliaments of Ireland were summoned " at the pleasure" of subjects, who were themselves for the most part
commoners, it would be the height of absurdity
to suppose that the usage of creating peerages,
by the acts of issuing and obeying writs of summons to such parliaments, could have been introduced into Ireland. No legal mode existed,
during that period, of creating peerages in Ireland, except by letters patent, or by some other
direct and equivalent act of the king himself.
Of the existence of this difference in the
usages of the two kingdoms, created by the
local and political difference of their respective
legislatures from the earliest periods, English
statesmen and lawyers seem not to have been at
B2

20

all times aware, until instructed by a residence
in Ireland, or by official and intimate connexion
with the affairs of that country.
A striking proof of this inadvertence is given
in the official correspondence preserved in the
State Paper Office in London, and lately published under the sanction of the Government.
Amongst the state papers of the reign of
Henry VIII. in part II. page 440, we find letters from the Lord Chancellor Audeley to Secretary Cromwell, of which the following are
extracts. In a letter dated the 14th August,
1535, he says: " Also I pray you to putt the
Kinge's Highnes in remembrauns for certen
Barons that his Grace seyd he wold make in
Irlond for the encrese of the number of Temporal Lordes of his Parlament there: and whether they shall be made by his wrytt from
hens, or elles that his Grace will direct his letters to the Chancellour of Irlond to direct his
wrytt under the great seale there, to them;
whiche me semyth is the most ordynary waye."
From this letter it appears, that although the
English Chancellor was too constitutional a
lawyer to imagine, that the special authority of
the crown was not necessary in the creation of
peerages by writ, yet that he was not then aware
of the existence of any difference in the usages
of the two kingdoms as to the form in which the
crown exercised its prerogative of creating peers.
But the following passage from another letter,
dated at Oldeforde, on the 13th September following, will shew that, before he proceeded further in so important a matter, he took the precaution to ascertain the usage of Ireland upon
that point, from the highest authority upon the
subject, namely, the clerk of the crown in that

21
country; and that he had consequently abandoned the idea of creating peerages in Ireland
by any species of "wrytt."
"I have also made two patentes for two Barons in Irlond, that is to saye, to Sir Richard
Power,* Knight, and Thomas Eistace,t Gentleman. Cowley4 shewed me that the old course to
make Barons there is to have Letters patentes out
of the Chauncerye here in England: wherefore I
have made and sealed the same Patentes, and
send praying you to move the Kinge's Grace
thereof, and to order the said Patentes as shall
stand with his pleasure."
It is evident therefore that there is a legal and
moral impossibility that any peerages of Ireland
can have been created by writs of summons to
parliament. For if, until 1535, " the old course
to make barons" in Ireland was by letters patent
issued out of the English Chancery; and if,
from 1535 to the present day, no peerage has
ever been created in Ireland except by letters
patent, as the records of the peerage of that
country testify, what interval of time remains
during which a usage of creating peerages by
writ could have prevailed in Ireland? And where
are the peerages so created? For all the ancient
peerages of Ireland are admitted to have been
in existence long before 1535.
But independently of these plain negative
proofs of the non-existence in Ireland of peerages created by writs of summons to parliament,
there are clear positive proofs that during the
whole period in which that usage was gradually
becoming prevalent in England, a contrary
* Created Baron le Poer and Curraghmore, 13th Sep. 1535.

t Created Lord Kilcullen.
I Clerk of the Crown in Ireland.

22

usage continued to be uniformly observed in
Ireland.
Edmund Spenser, in his " View of Ireland,"
mentions a case in which Edward III., upon
some occasion, wished to enable the temporal
peers of Ireland to outvote the spiritual peers,
by whom, until the reign of Elizabeth, they
were always outnumbered in parliament. With
this view, he was, says Spenser, "advised to
direct out his writs to certaine gentlemen of the
best ability and trust, entitling them barons in
the next parliament, by which means he had so
many barons in his parliament as were able to
weigh down the clergy and their friends." (p. 224.)
But Spenser adds that these persons " were
not afterwards lords, but onely baronets, as sundry of them doe yet retayne the name." The
statute of the 10th Henry VII. which effected
such considerable changes in the parliament of
Ireland had been in operation nearly a century
when Spenser wrote; otherwise he would have
been .well aware that this was no insulated instance, but had been the general law and usage
of Ireland from the time of Henry II.
All the records of the early parliaments of
Ireland are lost. The first of which any trace
is left is that of 1282; and it is known to have
been assembled only from an entry in the Pipe
Roll of that year, that Peter de Birmingham,*
Lord of Athlienry, was as a Peer fined 100 shillings for absenting himself from it. But even
* A question has been raised in Mr. Bryan's case on his
claim to the Slane Peerage, whether that peer was Peter de
Birmingham, Lord'of Athenry, or Peter de Birmingham, Lord
of Thetmoy, both equally powerful barons. The answer is
clear. The Roll shews that the fine was levied in Tipperary,
in which county Peter Lord Athenry then held large possessions, and the other none.

23

this trace affords a proof of the existence of anterior parliaments : for the Act of the 25th Henry
VI. hereafter cited, which repeals the ancient
law that amerced every Peer or "Lord of Parliament" at 100 shillings, expressly states that
the law had been passed by a former parliament; and it is clear that it was in force in
1282.
There is still extant in the office of the Exchequer in Ireland, the enrolment of the proceedings of the Parliament of the 3rd Edward
II. (1309.) It has been proved before the House
of Peers in the case of the Slane Peerage (See
Minutes, p. 32, No. 8.)

This curious and valuable document contains
not only the statutes passed in that parliament,
but the form of the writs by which it was summoned, the various descriptions of persons to
whom special writs were directed, and their
mode of proceeding when assembled.
The writ cited is the one issued to Richard de
Burgo Earl of Ulster, and summons him " ad
tractandum et parliamentandum cum justiciario nostro Hibernia et aliis de consilio nostro,
et cum ceteris proceribus et magnatibus terra
nostra."
The enrolment then states, that " Consimilia
brevia mandata fuerunt diversis prmlatis et
aliis proceribuset hominibus in terra Hibernia."

These were called by special summons, and
constituted the upper house. It then proceeds
to describe the composition of the lower house,
and states that the king ordered all his sheriffs
of the aforesaid land to cause to come there, on
the same day, from every county two knights,
and from every city or borough two citizens or
burgesses having full power on the part of the

24
commons of the aforesaid counties, cities or boroughs, to treat with the said upper house, and
to consent to the ordinances by them to be ordained.
It then goes on to say that on the appointed
day the aforesaid justice and others of the king's
council having assembled those who had been
specially summoned, shewed them on the part
of the king a certain petition in Norman French,
which clearly explains the meaning of the terms
" magnates" and " homines" to whom writs of
summons had, equally with the Prelates and
other Peers (prcelatis et aliis proceribus), been
specially issued.
They were men of rank
and influence, but still commoners. "Prie le
dit seigneur le Roy par sa justice et son conseil que ci est a prelaz countez e barouns e autres bones genz de la comnmuniaut de la terre qui
sont venuz par somunce, &c."
The latter, therefore, notwithstanding their
special summons to and sitting in parliament,
still remained "bones genz de la communiaut6
de la terre qui sont venuz par somunce," and a
separate class from the "countez e barouns."
They were in fact the " certaine gentlemen of
the best ability and trust" of Spenser, and the
" discretiores et probiores homines de partibus
vicinis" of the following ordinance. Many of
them were titular barons, or the baronets of
Spenser.
The whole of this Parliamentary Roll is more
fully confirmed and explained by the ordinance
for holding Parliaments in Ireland, issued by
Edward III. in the 31st year of his reign (1357.)
"Volumus et proecipimus quod nostra et ipsius
terra negotia, proesertim majora et ardua, in
conciluiis, per peritos consiliarios nostros, ac pre-

25
latos et magnates et quosdam de discretioribus
et probioribus homnibus de partibus vicinis ubi
ipsa concilia teneri contigerit propter hoc evocandos; in parliamentis vero per ipsos conciliarios
nostros ac praelatos et proceres; aliosque de
terra predicta, prout mos exigit, secundum justiciam legem consuetudinem et rationem tractentur deducantur, et fideliter, timore, favore,
odio aut pretio postpositis, discutiantur ac etiam
terminentur."*
In remarking upon this ordinance, the Lords'
Committee of England, state, 1st Report, p. 326,
that it " seems clearly to refer to custom as constituting the legislative assembly of Ireland, as
the statute of 15 Edw. TI. did to the constitution
of the legislative assembly in England."
Now it is evident from this document, that the
crown took no part whatever in selecting or
naming the individuals who were to be summoned to the parliaments of Ireland, but left
that duty to be fulfilled by the j usticiary and privy
council, according to the usages and law of Ireland. How unconstitutional ! how illegal! how
dangerous, therefore, would have been the introduction into Ireland of the usage of creating
peers by writs of summons to parliament! There
was no alternative in order to preserve this "act
of regality inseparable from the crown," but "the
old course," stated by Lord Chancellor Audeley,
namely, only" to make barons in Ireland by letters patentes, out of the Chauncerye in England."
In addition to the terms of this ordinance
(pradatos et proceres aliosque de terra praedicta)
there are innumerable collateral proofs of the
difference in rank of the persons who equally
* Pat. Rot. T. L. 17 Ric. II., and Irish Statutes, Appendix,
vol. i.

26

received special writs of summons to attend
those parliaments.
By the statute roll of the 1st Richard II., we
find that, amongst others, Walterus de Bermyngham de Athenry, Simon Cusak, miles, and
Meilerus d'Excestre, were all equally summoned
to attend the parliament held at Tristledermot
in that year. By the Pipe Roll of the same year,
it appears that they all three disobeyed the summons; and that for such disobedience, Walter
de Birmingham was fined 100 shillings, and
the two others only 40 shillings each. The
reason of this inequality of punishment is explained by the following act of Parliament,
which shews that the first was amerced as a peer
or lord of parliament, and the two others as commoners. The act repeals the ancient and excessive fine upon lords of parliament.
Act 25th, Henry VI. cap. 29.
"Likewise for as much as a law is established
touching every lord who is called a lord of parliament, that in all pleas as well personal as
real that in amercements lie, he who is called
lord shall be amerced in 100 shillings, to the
great impoverishment of the said lords, inasmuch as their means of living are lessened and
wasted by war. It is ordered and ordained by
authority of this present parliament, that no
lord of parliament should be amerced hereafter
in the said pleas otherwise than any other person notwithstanding any law thereof made to the
contrary. "
Another collateral proof is afforded by the
statute 3rd Edw. IV. cap. 4. It appears by

27

this act that after the deposition of Henry VI.,
Thomas Fitzmaurice, Earl of Kildare, " fut per
assentde les Seigneurs Espirituelx et Temporelx
et jentilxhomes de cette terre d'Irlaunde, come
il fuit del auncient temps accustum6, elue
justice."
Any person conversant with ancient history,
and with the French language, will perceive that
these "jentilxhomes," were neither peers, nor
citizens and burgesses, but men of birth and
influence, summoned along with the peers.
But Sir James Ware, in his History of the Legislature of Ireland, (vol. 2. p. 78) cites a statute
which is conclusive upon all these points; 1st,
as to the great antiquity of the parliaments in
Ireland ; 2d, as to the essential difference in the
usages of the legislatures of the two kingdom's;
and 3d, as to the fact that a class of men were
summoned to assist in the legislature of Ireland,
who were neither peers nor representatives of
the commons.
"In a statute made in a parliament held at
Trim, anno 2do. Ric. III. (Rot. Parl. 2 Ric. III.
cap. 8.) it is enacted that the statute of Henry
Fitz Empress, (i. e. Henry II.) made for the election of a Governor of Ireland, when it shall
happen to be void of any lawful governor, be, by
the authority of this parliament, ratified and
confirmed." The act then goes on to state the
forms that 'shall be observed, and concludes
with these remarkable words: "Provided that
such election be made by the Lords Spiritual
and Temporal, and the nobles of the land."
Now who were these" nobles of the land?"
They evidently were a distinct class from the
"lords temporal ;" and they as certainly were
Neither could
not " citizens or burgesses."

28

they have met without receiving writs of summons. They were the titular barons, or " baronets" of Spenser, and the "homines discretiores
et probiores," of the ordinance of the 31st
Edward III.
But although the general power which had
been exercised from the earliest periods by justiciaries and their deputies, of summoning parliaments at their pleasure, and which was
sanctioned by the ordinance of the 31st Edward
III., was abolished by the statute of the 10th
Henry VII., and no great council appears to
have been held after that period, still the usage
of summoning individuals who were not peers of
Ireland to sit and vote in parliament amongst
those peers, without thereby becoming peers,
continued to be occasionally practised.
The list of the parliament of 1541, as preserved in the State Paper Office in London,
affords the earliest official account that has been
discovered of the real peerage of Ireland, as distinguished from the descendants of the commoners who had, equally with the peers themselves, been specially summoned to the ancient
parliaments, and from the individuals who, under
similar circumstances, were specially summoned
to sit and vote with them in that parliament,
without thereby acquiring peerages. It appears
from this document, and from the official letter
in which it is inclosed, that many of the native
chieftains and heads of clans or septs in Ireland,
were summoned and sat and voted amongst the
peers of Ireland in that parliament. But min
the
list, the following note is attached to their names:
Isti nondum sunt de Parliamento; while in the
letter the King is congratulated by the Lord
Deputy and Privy Council upon the reap-

29

pearance in that parliament of several of the
ancient lords of parliament, who had long absented themselves from those meetings.
The effect of this note, as illustrative of the
fact that the usage of Ireland did not attribute
the creation of a peerage to a writ of summons
to, and a sitting in Parliament, is fully confirmed
by the circumstance that several of these chieftains were subsequently created peers of Ireland
by "the old course," of making peerages in Ireland; namely by " letters patentes," strictly limiting such peerages to heirs male, and under
which patents alone they have ever since claimed
their places amongst the peers of Ireland.
Inclosing this list, and in the same handwriting, is an original letter officially signed by
the Lord Deputy, and by all the members of the
Privy Council of Ireland, giving to the King a
detailed account of the proceedings of that parliament. The list inclosed in this curious and
interesting document, is given in the printed
minutes of the proceedings in the case of the
Slane Peerage before the House of Lords. But
the letter itself, although it was regularly produced and proved at the same time before the
House, has been omitted in the minutes of evidence. It contains a singular illustration and
confirmation of the usages and mode of proceeding in the ancient parliaments of Ireland, contained in the Parliamentary Roll of the 3d Edw.
II., referred to above.
The following extract from it shews that the
real peers, or "lords of parliament," with the
exception of those who resided within "the pale,"
or immediately in the neighbourhood of the seat
of government, seldom attended the ancient
parliaments.

30
"There came to this parliament the Earls of
Ormonde and Desmonde, and with them the
Lorde Barre, the Lord Roche, the Lorde Fitzmorris, and hither came also the Lorde Bermyngham of Athenry in Connaught, which lords have
not been here of many years before."
To the parliaments of Elizabeth none were
summoned but the peers of Ireland, as appears
from the lists of those of the 2d and 27th Elizabeth, proved in the case of the Slane Peerage.
As that of the 27th Elizabeth furnishes the first
official list of the Peers of Ireland in the English
language, it is here given.
TEMPORAL LORDES.

The Earle of Kildare.

The Earle of Ormond and Ossory.
The Earle of Tyrone.
The Earle of Clanrickard.
The Earle of Tomond.

The Earle of Clancare.
The Viscount Buttyvant.
The Viscount of Fermoy.
The Viscount of Gormanston.
The Viscount Mountgarrett.
The Lord Bermyngham of Athynry.
The Lord Coursy.
The
The
The
The
The
tThe

Lord of
Lord of
Lord of
Lord of
Lord of
Lord of

Slane.
Delvyne.
Killen.
Howth.
Donsany.
Trymletstone.

* The Lord of Kerry was then under attainder.

t-The most ancient baron whose patent has survived the destruction of the records. It is dated 2nd Ed. IV. All below him
were created by Henry VIII, and Elizabeth.

31
The Lord
The Lord
The Lord
The Lord
The Lord
The Lord
The Lord
The Lord

of Donboyne.
of Upper Ossory.
of Louth.
of Curraghmore.
of Donganyne.
of Inchecoyne.
Burck of Conell.
of Cahir.

After this, no Parliament, as the historian
Cox observes, was held in Ireland for 27
years. But James I. having determined in 1613
to assemble the Parliament of that kingdom,
required from Sir Arthur Chichester, then Lord
Deputy, an official list of the Peers of Ireland
That list,
who were entitled to attend it.
arranged according to the provinces in which
they respectively resided, was prepared and
sent over by the Lord Deputy, and deposited in
the State Paper Office, Irish Correspondence,
vol. 92, p. 479. 1613.
Mr. Bryan, in his "Case" on the Slane Peerage,
has produced the King's Privy Seal letter written
in consequence of this list, as a proof of the existence in Ireland of the usage of creating hereditary peerages by writ; but upon examination
into the facts, it will be found to unite with the
proofs already given in shewing precisely the
reverse.
The list having shewn that there would be a
probable deficiency in the attendance of six of
the Peers of Ireland, the King's letter authorises
the Lord Deputy to call by writ to the House of
Peers the following six individuals, the Earl
of Abercorne, Lord Henry Bryan, eldest son of
the Earl of Thomond, Lord Audley, Lord Ochil-

32

tree, and Lord Burleigh, with the rank and
precedence of Peers of Ireland.
But although the letter directed them only to
be called for " the next Parliament," which was
to meet at Dublin on the 18th of May, " to
assist" in the said parliament, and although
they were all, with one exception, English and
Scottish Peers, still the Peers of Ireland objected to the innovation. We learn from Cox's
History of Ireland, which furnishes a detailed account of this parliament and its proceedings, that on the 17th May, (the day preceding the meeting of the Parliament) they presented a remonstrance to the Lord Deputy,
" questioning the king's prerogative in creating
new corporations, or calling by writ new lords to
parliament.."
This remonstrance, so far as their own rights
were concerned, proved effectual. The corporations were persisted in and created; Lord Henry
Bryan, as the eldest son and heir of a peer of
Ireland, was allowed, as not a new practice in
Ireland, to anticipate the privileges of his birthright, and took his seat in the precedence of his
father's barony; but it appears both from the
list of the Peers of that Parliament furnished
by Cox, and by the official Roll of the Parliament proved in the Slane case, that not one of
the others ever attempted to enter the House of
Lords until he had been regularly created a
Peer of Ireland by "the old course," namely by
letters patent limiting his dignity to the heirs
male.*
* Either their creation as hereditary Peers of Ireland, by this
process, never was intended; or the attempt was abandoned.
In the Royal Library presented to the British Museum, there
is a printed copy of original State Papers of the reigns of Eliza-

The King thus constituted in 1617 the Earl of
Abercorne a Peer of Ireland, by the title of
Baron of Strabane, and in 1619 he in a similar
way created Lord Ochiltree, Baron of CastleStewart. Lord Audley had been created Earl
of Castlehaven and Baron of Orier in 1616;
and of Lord Burleigh we hear no more, although
the title survived in Scotland until its forfeiture
in 1715. After this statement, it is scarcely
necessary to add that no peerage of Ireland has
ever been claimed under the writs of 1613, although the heirs general of all the persons summoned still exist.
Even James II., when, in the urgent and
critical state of his affairs in 1689, he assembled
the Irish Parliament in Dublin, and wished to
ennoble the Lords Fytton of Gosworth, Nugent
of Riverston, and Bourke of Bophin, did not
attempt to accomplish that object according to
what was then the established usage of England, by a simple writ of summons to parliament.
beth, James I., and Charles I. From these, it appears, that after
the prorogation of this parliament, the King desired that a deputation from the discontented Lords and Commons should be sent
to England to state their grievances. In one of the statements
of grievances presented by them to the King, we find the following passage: " Neither is it to be passed over in silence that the
ancient nobility of the kingdom are for the most part not only
debarred from public employments, but also are vilipended and
set at nought, disgraced by them that are newly raised to honour,
place, and means." Vol. 1. p. 249.
These charges were sent over to the Lord Deputy and Privy
Council. To this specific charge, he returned the following
official answer, (p. 276): " Whom they mean by those newly
raised to honours, I cannot conceive, unless it be the Lord
Deputy ; for his Majesty hath given the order of baron to no
other person here." He had been created Lord Belfast by letters
patentpreviously to summoning the parliament, and this answer
was made nearly six months after the writs in question had been
issued.

34

He indeed issued writs summoning them to
attend his parliament at Dublin on the 7th of
May following; but scrupulously regardful of
the usages of Ireland, he added to each writ a
clause limiting the dignities so conferred to the
heirs male of the parties ennobled, and caused
it to be enrolled as " literat patentes" in the
Chancery Rolls of that year, where they all three
still remain.
It is evident from this brief statement of facts
deduced from the history and public records of
Ireland, that the assertion of the existence in
that country of the usage of creating hereditary
peerages by writs of summons to parliament,
and descendible to females, is a mere fiction,
contradicted by the testimony both of English
statesmen and of Irish records.
It is upon such principles, and facts, that the
supreme tribunals of both countries have long
since decided as to the existence of a difference
in the usages and laws of the two peerages.
The existence, in England, of hereditary peerages, created by royal writs of summons to the
parliament of England, and inheritable by
females, (a species of dignity unknown to the
peerage of Ireland,) was " by an inference of
law" derived from the usage of England, decided
by the English House of Peers in 1673, in the
case of the Barony of Clifton, to be the established law of the English peerage.
The existence, in Ireland, of ancient peerages
of unascertained date and origin, but prescriptively limited, "by an inference of law" derived
from the usage of Ireland, to the heirs male of
the families in which they have always vested,
(a species of dignity unknown to the peerage of
England,) was, by the unanimous judgments of

35

the Irish House of Peers in the case of the
baronies of Kingsale, Ringrone, and Courcy,
in 1721 and 1762, and in that of Dunsany in

1782, decided to be the established law of the
Irish peerage.
But even if these variations in the usages of
the two peerages were not thus proved, upon
constitutional principles, and a priori; and had
not been respectively established in each country, by the solemn decisions of its own supreme
judicial tribunal; still there are, upon the public
records of the two countries, two facts notorious
and indisputable as to their existence, and conclusive in their results.
1. The thirteen noble families in which the
ancient baronies of Ireland are vested, are proved
by the public records of Ireland, to have been
found, at the accession of Henry VII., in the
undisputed possession of their respective ancient
dignities, which, during the three centuries and
a half that have since elapsed, have in no one
instance passed into a new name or family; but
have been all prescriptively and uniformly inherited by the respective heirs male of the individuals in whom they were so found vested.
The same number of English baronies by writ,
which are inheritable by females, have, on the
contrary, aid during the same period, been
transferred with female heirs through above
sixty different names and families, affording an
average of five families to each peerage. Such
a variation of descent, supposing the same usag.s
of succession to have regulated both peerages, is
a moral impossibility, which must be evident
even to the grossest capacity.
The following table will afford the shortest
and clearest demonstration of this fact:c2

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37
2. The second fact, which is equally notorious
upon the public records of the two countries,
serves both as a corroboration of the former,
and as a proof in itself.
During the same period, that is, from the
accession of Henry VII. down to the union in
1800, numerous claims to these English baronies
have, from time to time, been preferred before
the English House of Peers, in right of their
descent to female heirs, by persons who proved
themselves to be the heirs general, or right
heirs of the persons first ennobled by writs of
summons to the parliament of England. On
the contrary, during six hundred years, only
one instance of a claim to any Irish peerage
whatever has ever been advanced before the
Irish House of Lords in right of any female;
and that claim had no reference to any of the
prescriptive peerages of Ireland that were found
in existence at the accession of Henry VII.;
nor was it grounded upon any alleged writ of
summons to parliament.
Indeed, if the generally received axiom be
true, that "an exception proves a rule," this
exception will be admitted to furnish double
proof. The case, in itself, has no reference to
the present question, and is noticed here only
because it has been so ostentatiously cited before the English House of Lords, as the single
proof of the existence, in Ireland, of peerages
created by writs of summons to parliament;
and has so absurdly, even supposing that the
fact were true, been urged as having a retrospective effect upon all anterior baronies. But
that the existence of even this one alleged exception to the general rule, is totally void of
foundation, is evident from the following facts.

38

The Lords Power of Curraghmore never attempted to claim any place in parliament among
the ancient and prescriptive barons of Ireland.
In 1762 that peerage was claimed by a lady
who had married into a new but influential ascendancy family, upon the sole allegation "that
her grandfather had sat and voted in parliament as Baron le Poer." His seat, as appears
by the Lords' Journals, was, let it be remarked,
among the peers created by Henry VIII. The
party claiming did not produce any patent, or
allege any writ of summons to account for the
existence of the peerage; but in the pedigree
of the family, published at the time, and still
extant in Lodge's Irish Peerage, it is stated,
that Sir Richard Power had been created Baron
le Poer, of Curraghmore, on the 13th September, 1535, (27th Henry VIII). With regard to
the means by which this creation was effected
the pedigree is prudently silent; but as no parliament was then sitting in Ireland, and none
summoned until 1541, the peerage could not
possibly have been created by writ of summons
to parliament. How the family, in the alleged
absence of all documents, could have ascertained so exactly, to a day, the date of a transaction which had occurred above two centuries
before, is not explained; but it happens, by a
very extraordinary coincidence, that an ancient
copy is preserved in the British Museum,
(Sloane, MSS. No. 4797, p. 121,) of a royal

patent, dated at Oldeford, 13th September, 27th
Henry VIII., creating Sir Richard Power to be
Baron le Poer, of Curraghmdre, and limiting
the dignity, in the strictest manner that words
can express, to the heirs male of his body for
ever.

39
The letter of Lord Chancellor Audeley, of
the same date, to Mr. Secretary Cromwell, which
has been referred to, states, that he had drawn
up and forwarded this patent, which gives him
occasion to state the fact, with regard to "the
old course to make barons" in Ireland.
The succession of a female to a title thus
limited by its creation, constitutes the only instance to be found in the annals of Ireland, of
the adjudication of any peerage whatever, either
to or through a female heir.*
It being thus clearly demonstrated that according, to the usage and law of Ireland, its
ancient peerages created before the reign of
Henry VII. "have been considered as male
fiefs, descending to the heirs male of the person
first ennobled," it would, according to the principle laid down by the English House of Peers
in the Sutherland case, be incumbent upon any
individual who should now come forward in the
character of an heir general to claim any one of
these peerages, to produce a precedeit in which
it had formerly, in opposition to the general
usage and law, passed to an heir general. It is
an admitted point of law, as well as of equity
and common sense, that the onus probandi must
lie with the person who contends for an exception from a general law, and not with him who
holds an inheritance according to that [aw.
It is also a principle established by every
decision of the House of Peers, that it is an
essential rule of the law of peerage, that every
individual so claiming must prove that he or
* The proceedings of the Irish House of Commons, as recorded in its Journals of the 5th, 6th, and 7th December, 1717,
furnish a sufficient clue to this disgraceful transaction.

40

she is the heir general, not of the last possessor, as in the descent of lands, but of the
first ancestor or, "person first ennobled." According to this universal principle of the descent
of all English and Irish peerages, any person
claiming a peerage without, at the same time,
claiming to be either heir male or heir general
of "the person first ennobled," or without producing some special remainder in a patent of
creation, would commit an act of absurdity.*
How difficult it would be for any such claimant to produce a precedent of the descent of
* In Scotland there are several peerages regulatedby rules
peculiar to that kingdom. But in every instance some special
and sufficient deed is produced
it from this general
principle.
In Mr. Bryan's claim to the peerage of Slane, a peculiarly
unfortunate attempt is made to elude this absurdity, and

-exempting

Incidit in Scyllam cupiens evitare Charybdim.

Having no instrument of any kind to produce, controlling the
descent of this recognised ancient dignity, and compelled to
acknowledge that he is neither the heir male nor the heir general of " the person first ennobled," he is under the necessity of
supposing the still greater absurdity, that six distinct peerages
of Slane, all of them equally allowed the same rank, title, and
precedency as ancient barons, were successively created by
subjects, without any assistance from the Crown. Having to
encounter an obstacle that would have terrified many, namely
four distinct generations of heirs general, all possessing prior
claims to himself, he boldly surmounts it by providing a supposed new, although really ancient peerage, for every heir male
whom the usage of Ireland had called to the succession; and
by leaving the cast off peerage of his predecessor for his heirs
general, who thus, long after their deaths, are liberally provided
with honors of which they were perfectly unconscious during
their lives.
Mr. Bryan's" Case," of which I give him, as a highly respectable gentleman, the full credit of being wholly guiltless, treats
the Irish House of Peers with a considerable degree of contempt; but still greater pains must have been taken to persuade
him of the utter inefficiency of the Imperial House of Peers.

4:1
any one of these ancient baronies of Ireland to
an heir general has already been proved. How
difficult would be the task for any heir general
of any of the later lords who have held these
dignities to prove himself or herself to be heir
of the first lord, or " person first ennobled,"
shall now be shewn.
Common sense would dictate that there can
be no such essential difference in the climate or
circumstances of England and Ireland as should
cause a number of noble families in Ireland,
through successive centuries, regularly to produce sons, while the same number of noble
families in England were so frequently, during
the same period, producing only daughters.
The records of Ireland shall be adduced in aid of
common sense. They will shew that the noble
families of Ireland have not been less prolific
of daughters than those of England; and that
the only reason why their dignities did not, like
those of England, descend with those daughters, was because they were prevented from doing so by the usage and law of Ireland. It
must be premised that not one-third of the instances which really occurred will be mentioned
in the following account. So generally understood, and so fully admitted was the law of
descent of these dignities, that the succession
of the heirs male, and the exclusion of heirs
female, took place as a matter of course; and
caused no remark, or produced no record, except in their private pedigrees, or in the songs
of their bards. It was only when questions respecting the division of the property of the last
lord between these two species of heirs, under
old family settlements, were involved with the
descent, that litigation ensued; and the case

42
being carried before courts of justice, these facts
were elicited during the investigation, and thus
placed upon the public records. It will be
found upon examination that the existing proofs
of almost every one of the following instances
originated solely in that cause.
OFFALEY.

In the 1st Ed. I, Maurice, son and heir of
Maurice Fitzgerald, Baron of Offaley, died,
leaving two daughters his coheirs, Annabella
and Julian.
Gerald Fitzgerald, sixth Earl of Kildare, and
Baron of Offaley, left an only daughter and heir,
Elizabeth.
In the reign of James I., Gerald, the son
and heir of Gerald Fitzgerald, Earl of Kildare,
and Baron of Offaley, left an only daughter,
Lettice.
BARRY, LORD OR VISCOUNT OF BUTTEVANT.

In the 3d Elizabeth, James Fitzjohn Barry,
Lord or Viscount of Buttevant, left a daughter,
married to Richard Lord Power.
ROCHE,

LORD OR VISCOUNT OF FERMOY.

In the 13th Henry III., David de Rupe or
Roche, Lord of Fermoy, left two daughters, his
co-heirs, and was succeeded by his brother.
GORMANSTON.

In 1691, Jenico, Lord of Gormanston, and
the seventh Viscount of the same title, left an
only daughter and heir, Mary.
ATHENRY.

In 1301, Meiler, the eldest son and heir of
Peter de Birmingham, Lord of Athenry, left two

daughters, Phillippa and Elizabeth, his co-heirs.
The title descended to his next brother, Richard.
KINGSALE.

Several instances which have occurred in the
descent of this title are mentioned in the printed
report of the law officers of the Crown in 1762.
KERRY.

Edmund Lord Kerry was created Viscount
Kilmaule, by Henry VIII. in 1537, and died in
1541, leaving an only daughter and heir, Catherine, married to O'Fallon.
SLANE.

Five instances of the descent of this peerage
to " the heirs male of the person first ennobled,"
and of the exclusion of female heirs from the
succession, have been proved in evidence before
the House of Peers.
DELVIN.

Thomas, Earl of Westmeath, and Baron of
Delvin, died in 1752, leaving two daughters, his
co-heirs, and was succeeded both in the earldom
and barony by his brother John.
KILLEEN.

Christopher, the third Lord Killeen, died in
the 10th Edw. IV. leaving a daughter Alice married to Lord Howth, and was succeeded by his
brother Edmund.
Christopher the seventh lord, died before the
13th Elizabeth, leaving three daughters, and was
succeeded by his brother J nes, the eighth Lord
Killeen.

44
HOWTH.

Edward Lord Howth died before the 3d Edw.
VI. leaving two daughters, and was succeeded
by his brother Richard.
Nicholas, Lord Howth, died in 1643, leaving
three daughters, and was succeeded by his
nephew William.
DUNSANY.

John, eldest son of Robert Lord Dunsany,
left two daughters, his co-heirs. His brother
Christopher succeeded to the title.
The whole question regarding these ancient
peerages of Ireland is reduced to one plain and
simple matter of fact; namely, whether or not
there exists in Ireland a species of ancient
hereditary dignity, of unascertained date and
origin, which has always been limited by the
usage of Ireland to the male heirs of the first
lord-a dignity that does not now exist in the
English peerage, of which the date, origin, and
mode of creation of all its titles of honour are
still preserved upon record.
This question has long since been solemnly
and unanimously decided in the affirmative by
the House of Peers of Ireland, then the only
competent tribunal to settle such a question,
which it (lid by its judgment in the case of the
claims of the male heirs of the family of De
Courcy, upon the ground of their prescriptive
right to the ancient dignities of Kingsale, Ringrone, and Courcy; and upon the principle of
law common to both countries, that "it may be
reasonable to infer a right to an hereditary dig-

nity by prescription, from repeated writs of
summons in hereditary succession."
That house, by adjudging the right of succession to these dignities to the male heirs,
who, in their petitions, had claimed them solely
upon the ground of prescription,-and by placing
those male heirs in the high seat and precedency of their ancestors, decided that a writ
of summons issued to the male heir of an ancient
barony, to the exclusion of the heirs general of
the last lord, did not, in Ireland, create a new
peerage, but was issued to such male heir as
his prescriptive right.
The whole merits of the case of Mr. Bryan,
now before the house, have, therefore, already
been decided by the only competent tribunal,
and are jam judicata.
The only question which, without a flagrant
breach of the privileges of the House of Peers
of Ireland, could now be brought before the
Imperial House is, whether the ancient barony
of Slane is a barony in fee, or a barony in tail
male. In that case, the only parties who would
be interested in the question, or who would be
entitled to bring it forward, would be the heir
general of the first baron of Slane, and his heir
male of the family of Fleming. That question
would be very easily settled; as the very fact
upon which Mr. Bryan's claim is grounded,
namely, the repeated successions of the heirs
male, and the proofs of that fact laid before the
House, clearly shew that the House of Peers of
Ireland always considered and treated the
barony of Slane as being regulated by the same
principle of usage with the baronies of Kingsale, Ringrone, and Courcy; and the writs
issued to the successive heirs male of the family

46

of Fleming to be their prescriptive right, as the
heirs male of the first baron of Slane; and,
consequently, that writs so issued to the successive heirs male of the family of Fleming
were no more creative of new peerages of Slane,
than those issued to the successive heirs male
of the family of De Courcy had been creative
of new baronies of Kingsale, &c.
It would be superfluous to recapitulate the
variety of modes in which the pretensions of
Mr. Bryan outrage the usages, laws, and rights
of Ireland; but although the question is one of
purely Irish right, it may not be irrelevant to
observe, that his claim is also grounded upon
several glaring violations of the principles, the
usages, and the laws of the English peerage.
1. It violates the principles of the law of peerage in England by founding its pretensions on
a denial that " it may be reasonable to infer a
right by prescription to an hereditary dignity
from repeated writs of summons to parliament
in hereditary succession." *
2. It violates the usages of the English peerage, by supposing the cotemporary existence of
six distinct peerages, all entitled to the same
rank, style, and precedency. The English Lords
Commissioners, in reporting upon the Kingsale
case in 1627, assert that the creation of two titles
of honour of the same name, is "without precedent ;" and advise the King to cancel the patent
of the second, which was accordingly done.
3. It violates the fundamental law of all
peerages in England, whether created by writ
or by patent, by claiming an hereditary right
to the barony of Slane without even the pre* Lords' Committees, 4th Report, p. 341.

47

tence of being heir, either by descent or in remainder, to the first baron of Slane; whose
peerage it acknowledges to be still in existence.
It violates another fundamental law of the peerage of England, namely, that " theking is the
sole fountain of honour ;" by asserting the creation of six distinct peerages of Slane, without
shewing, in any one instance, that the king
consented to, or had any part in these supposed
creations; a proof which it was the more necessary to produce, because, during the period
in which most of these peerages are alleged to
have been created by writs of summons to the
parliaments of Ireland, those parliaments were
summoned " at the pleasure of subjects," and
generally without the previous sanction or knowledge of the king.
What! was not the peerage of Sutherland
awarded to the heir general of the person first
ennobled, upon the sole ground that it had passed,
in one instance, in contradiction to the general
usage of Scotland, as admitted in the Borthwick
case, to a female heir "without any objection on
the part of the male line" of the person first ennobled? And shall the peerage of Slane, which
has five times during precisely the same period, in
strict accordance with the general usage and law
of Ireland, passed to the male heirs of the person
first ennobled, "without any objection on the
part of the female heirs," in any one of the five
instances, be now awarded to an individual who
claims to be neither heir male nor heir general of
the person first ennobled! Forbid it every principle of justice, of common sense, and of common
decency! Nothing but insanity, or an utter ignorance of the fundamental principles of the
peerage, could ever have entertained a hope that

48

the House of Peers would so nullify its own principles, proceedings, and decisions; could so outrage its own dignity, its own sense of equity, and
its own rights. Such a decision would shake the
foundations of that House to their centre; and
would render the title of every individual peer dependent, not upon law or right, but upon caprice.
But any discussion upon that point is unnecessary. That august tribunal itself would be
the first to disclaim the assumption of any such
unconstitutional and illegal power, as that
sought to be attributed to it by Mr. Bryan's
case, namely, the power of changing an ancient
constitutional usage, and of depriving any class
of his Majesty's subjects of their legal rights
derived from that usage. The House of Peers
can adjudge a right which has previously accrued
from some usage or law: but the House of Peers
cannot, either grant a new or take away an ancient right.

THE END.

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