Ancient Baronage of Ireland, with a Comparative Examination Into The

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W ITH

A COMPARATIVE EXAMINATION

INTO THE

USAGES OR LAWS OF DESCENT

OF THE PEERAGE OF

ENGLAND, SCOTLAND, AND IRELAND:

EDWARD, LORD ATHENRY,

PREMIER 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 Ire- land. 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. Printed Collection of Original State Papers in 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 imme- 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 peerage by precisely the same right by which you all, as heirs- male of the persons first ennobled, hold your ancient dignities; namely, by 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 Ire- land, 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 mis- representations 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, ATHENRY County of Galway, 1st July 1833.

***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 regu- larity 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 en- abled, 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' Com- mittee 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 male fiefs, descending to the heirs male of the person first 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 neg- ligence of the heir male of the family of Suther- land, or to some other unknown cause, it had in one instance been allowed to deviate from the general usage of the ancient peerage of Scot- land, 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 Gor- don, 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 ad- mirable 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 Ba- rony 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 Eng- land, there had been numberless inconsistencies and exceptions, and some contradictory decisions upon the subject, which, as the Lords' Com- mittee 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 acci- dental 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 mar- riage, 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 Lam- beth 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 Eng- land 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 law- officers 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, cer- tificates, 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 Com- missioners in 1627, upon the barony of King- sale. --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 noto- riously 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 Pa- trick 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 regu- lar 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 con- sider as most unbecoming and insulting, has been made against the House of Peers of Ire- land, 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 England being attached to it. Upon these 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 Ire- land; 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 con- vened " 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 his- torians 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 mo- ment 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 incommu- nicable to subjects ; that is, it was never yet com- municated." So long therefore as the parliaments of Ire- land 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 in- troduced into Ireland. No legal mode existed, during that period, of creating peerages in Ire- land, 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 Se- cretary 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 Tem- poral 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 pre- caution 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 Ba- rons in Irlond, that is to saye, to Sir Richard Power,* Knight, and Thomas Eistace,t Gentle- man. 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 sun- dry 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 posses- sions, 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 Par- liament" 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 Ex- chequer 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 justi- ciario 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 proceribus et 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 bo- roughs, 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 con- seil que ci est a prelaz countez e barouns e au- tres 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 evo- candos; in parliamentis vero per ipsos conciliarios nostros ac praelatos et proceres; aliosque de terra predicta, prout mos exigit, secundum jus- ticiam legem consuetudinem et rationem trac- tentur 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 con- stituting 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 Ire- land. How unconstitutional ! how illegal! how dangerous, therefore, would have been the intro- duction 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 Ber- myngham 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 ex- cessive 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, inas- much 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 Le- gislature 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 not " citizens or burgesses." Neither could 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 jus- ticiaries 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 dis- tinguished 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 minthe 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 ab- sented 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 Ire- land; 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 hand- writing, 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 Fitz- morris, and hither came also the Lorde Bermyng- ham 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 Eliza- beth, 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 Lord of Slane. The Lord of Delvyne. The Lord of Killen. The Lord of Howth. The Lord of Donsany. tThe Lord of Trymletstone.

* The Lord of Kerry was then under attainder. t--The most ancient baron whose patent has survived the de- struction of the records. It is dated 2nd Ed. IV. All below him were created by Henry VIII, and Elizabeth. 31

The Lord of Donboyne. The Lord of Upper Ossory. The Lord of Louth. The Lord of Curraghmore. The Lord of Donganyne. The Lord of Inchecoyne. The Lord Burck of Conell. The Lord 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 who were entitled to attend it. That list, 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 pre- ceding 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 Parlia- ment 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 Castle- Stewart. 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 Eng- land, 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 depu- tation 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 U) 'o

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y) x q~

Z3 "O .0 w U) zto0 00 .,Cb0 OC .. pO°0 V .0 a N- L o al) ~ -1

yo O 0 . 0U"v 0 U) V0 O x o P- q- 0) I Iv. .0O 0)

O )

o ) O 0 z - 0

1U)*'NUO U)U .) U U) bU)° U

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U-E IV (3,5 o 00 PAZ)! .0 , 4-3 )JU)O

CA) ) . O- CU) 0 U) "N M U W4 M , A

a)s 000 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 retro- spective 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 as- cendancy 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 Septem- ber, 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 re- corded 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 pos- sessor, as in the descent of lands, but of the first ancestor or, "person first ennobled." Ac- cording 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 -exempting 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 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 do- ing 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 under- stood, 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 re- specting 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, Cathe- rine, 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, Ring- rone, and Courcy; and upon the principle of law common to both countries, that "it may be reasonable to infer a right to an hereditary dignity 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 King- sale, 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 de- pendent, 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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