Athenry Peerage

IN THE HOUSE OF LORDS

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CASE

OF

EDWARD BIRMINGHAM,

OF DALGAN, IN THE COUNTY OF GALWAY, ESQ.

CLAIMING TO BE

LORD BIRMINGHAM,

BARON OF ATHENRY,

AND

Premier Baron of Ireland.

 

The claimant presented a petition, in the year 1827, to his late Majesty, praying that he would be graciously pleased to declare and adjudge him, as the heir male of the Lords Birmingham, Barons of Athenry, to be entitled to the honours and dignities of Lord Birmingham, Baron of Athenry and Premier Baron of Ireland, as a prescriptive dignity which had been enjoyed by his ancestors from time immemorial.

A petition was also presented to his Majesty, by Lady Harriett St. George, one of the daughters of the late William St. Lawrence, Earl of Howth, alleging, that the said barony of Athenry and premier barony of Ireland, was a barony in fee, and in abeyance between herself and various other co-heirs of the late Thomas Birmingham, Earl of Louth and Baron of Athenry. Upon the latter petition, a report was made by Sir James Scarlett, then his Majesty’s Attorney-General, but before whom, in consequence of the absence of the claimant from this country, no evidence was produced as to the early history and descent of the family, and hereditary dignity, of the Lords Birmingham, as Barons of Athenry and Premier Barons of Ireland ; and, as appears from the report, no attempt was made on the part of the
petitioner to prove herself to be an heir general of the first Baron. Sir James Scarlett, in the said report, gave no opinion upon the claim of the petitioner, but merely advised his Majesty to refer the case to the consideration of this Right Honorable House ; his Majesty was graciously pleased to refer the case accordingly, but no further proceedings have hitherto been taken by any of the said co-heirs of the late Earl of Louth, and alleged ” XXIInd Baron of Athenry.”

The claimant, as heir male, upon his recent return to this country, immediately proceeded to substantiate his claim, by producing the evidence of his descent before the now Attorney-General, Sir Thomas Denman. That learned gentleman, on the 16th of September, in the present year, made his report to his Majesty upon this claimant’s petition, which report concludes as follows :-

”Upon consideration of the circumstances and proofs, 1 humbly offer it as my opinion that the petitioner has proved himself to be the heir male of Richard, Lord Athenry, who sat in Parliament in the reign of Queen Elizabeth; and I humbly advise that this claim be referred to the consideration of the House of Peers, if your Majesty should be graciously pleased to order accordingly. The question between the present petitioner, and the lady whose claim stands referred to the House of Lords, turns on the point of law, whether the Barony of Athenry is limited to the heirs general
or the heirs male of the first Baron. This question may be argued by counsel for each claimant, when either petition is brought before the House.”

His Majesty has been graciously pleased to act upon this recommendation, and the claimant’s petition now stands referred to the consideration of this Right Honorable House.

 

 

CASE

OF

EDWARD BIRMINGHAM,

OF DALGAN, IN THE COUNTY OF GALWAY, ESQ.
CLAIMING TO BE

LORD BIRMINGHAM, BARON OF ATHENRY,

AND

Premier Baron of Ireland.

THE Barony of Athenry is , in point of antiquity and precedency, the first of the ancient Baronies of Ireland ; a rank which all the other Barons of that kingdom, however they contended with each other for priority, have always agreed in conceding, without dispute, to the Lords Birmingham of Athenry.

In consequence of the loss, not only of ” the ancient deeds and evidence” of the Lords Birmingham, but also of the public records of Ireland of the period when the dignity originated , the male heirs of the family
of Birmingham have always asserted, and uninterruptedly enjoyed the inheritance of this peerage, as a prescriptive right, founded upon some ancient creation, and vested in them from time immemorial.

“A title to an inheritance in a dignity”, say the Lords Committee in their Third Report upon the Dignity of the Peerage (page 57) ” may have been originally acquired by creation , and the existence of such a title by creation may be proved by the fact of enjoyment by descent, when the fact of original creation cannot be ascertained ; and such enjoyment by descent may be deemed evidence to prove a right, by inference from the fact of enjoyment by descent ; and the origin of the right so proved not being itself capable of other proof, the right may be considered as a right by prescription.”
” The right by prescription,” so ably and so clearly explained by their Lordships, was (as appears by the following document) insisted upon by the ancestors of the claimant, in the reign of James I., and is now relied upon as the foundation of his own title.

” The surreplication of Edmond Lord Baron of Athenry, plaintiff, to the rejoinder of William McHugh Oge, defendant :-The plaintiff mantayning the contents of the bill and replication to be true and sufficient, and saving all advantages of exceptions to the incertainties of the answer and rejoynder, for surreplication averreth that the said rent is an ancient rent, and averreth the seisin of the plaintiff and of his ancestors thereof tyme oute of myend, in manner and forme in the bill alleged , and averreth the disseisin committed by the said defendant. And as to the shewing the manner of the commencement of the said rent, or for what consideration it was first created, or had beginning by deede or conveyance, or for other respect, the plaintiff saith that the same is not needful, the conveyance being so ancient, and the consideration ymplied in the tyme of prescription. He also saith , that there was an antient dignity and honor begun in his first ancestors, Lords of Donmore, which required in contynuance of their posterity some signories services and rents, and by all good construction and reasonable intendment were, by ordinary and lawlicke courses, first founded, and so always after approved by the payment and contynuall seisen of the said services and rents, whereof the rent now in question is parcell ; and saith also that the plaintiff’s antient deeds and evidence for the more part were perished by occasion of garboyles, uprores, and often rebellions in those parts, whereby the plaintiff cannot shew them, and therefore must and doth stand uppon his title of prescription and contynuall seisen of the said rent, which he will averr and denieth the supposed grant thereof to the said William Lynch to have taken perfection, and denieth the seisin of the said William Lynch thereof, and also utterly denieth the commencement thereof to have been by extortion or usurpation, or for ericke in sorte alledged ; and he averreth that himself is, and his ancestors, whose heire he is, have bin Barrons of Athenry and Lords of the said ManorDonmore, and averreth their seisen ; and the defendant’s said disseisin in the bill alledged without that, that the said rent was in the seisin of the said William Lynch by virtue of the plaintiff’s grannte, or that the said rent had commencement by extortional means, or that it began by usurpation for ericke, and without that, that the sept of Thomas Birmingham were Lords of Donmore, albeit some of them held the same by usurpation, and were thereby possessed of the same rent till both was evicted, without that, that he will averr the contynuance of his seisin thereof, after the making of the said late composition, and not thereby extinguished, nor any consideration given the plaintiff therefore by the said composition, and without that any matter matteriall in the answer or rijoynder incerted , and not hereby traversed or uncomplesed and avoyded or not denied is true, wherefore he humbly prayeth as in the bill.”
Ultimo Junii, 1609.
[ Every search has been made for the other proceedings in this cause, but without success, owing to the deranged and mutilated state of the Chancery pleadings of that period.⌋

The ” antient dignity and honour” stated by Lord Edmond ” to have begun in his first ancestors, Lords of Donmore,” is more fully specified and explained in the latter part of his surreplication, where he says, ” that himself is, and his ancestors, whose heir he is, have been Barons of Athenry and Lords of the said Manor of Donmore.

His statement of the usurpation of Donmore, and of his being the rightful heir, is fully confirmed by a passage in the official account, signed by Sir Henry Sydney and the Lords of the Council, of their progress throughout Ireland in 1569, preserved in the State Paper office in London. ” I, the Deputy, and the rest of the Counsell theare with me, departed to Gallway, to establish the President and Counsell for the province of Connaght. And after a few daies spent theare, repayred to the campe besides the Castell of Donmore before named, whiche, immediately uppon my comminge, was delivered unto me, and by me restored to the Lord Bremingham’s possession, who was the right owner and heritable to the same.”

Richard Lord Baron of Athenry, the son and successor of the above Edmond, and grandson of the Richard who was so restored, filed a bill in Chancery, in 1616 , against certain inhabitants of the town of Athenry, in which he states ” that himself was, and his ancestors had been, chiefe Lords of Athenry time out of mind,” and the defendants in their answer fully admit that he was, and that his ancestors had been ” chiefe Lords of Athenry time out of mind.”

It appears by the following extract from a privy seal letter of King Charles the Second , bearing date 2d May, 1663, that his Majesty, whose expressions singularly coincide with those of Lord Edmond, entertained the same opinion as that laid down in the Lords’ Report. He says, when speaking of Francis Lord Birmingham Baron of Athenry, ” that the dignity of his honour was conferred on his ancestors for their many signall services performed to our Royal Progenitors.”

The House of Peers of Ireland, above a century since, decided a claim to one of these ancient Baronies, upon the same principle as that now declared by the Lords’ Committees, to be the law of Peerage. The heir male of the family of De Courcy , in 1721 , by petition to their Lordships, claimed the Barony of Kinsale, as a dignity which vested in his ancestors ” time out of mind ; ” and his claim was unanimously allowed. It is shewn by papers which have been laid upon their Lordships ‘ table in the case of the Slane Peerage, that usage and enjoyment were as far back as the reigns of Henry the Sixth and Edward the Fourth, decided by the House of Lords in Ireland, to be the only criterion for all questions relative to their ancient dignities.

The Lords of Session in Scotland, in 1730, acted upon the same principle, and awarded the Barony of Lovat to the heir male of the family of Fraser : amongst other reasons for this decision , they state that “ a great many noble families appear, from the rolls of Parliament, to have sat and voted in Parliament, as Lords of Parliament, though no constitution of the Peerage, or title of honour, under which they sate, can be now found in the records.” (Minutes of Evidence, Lovat Peerage, P P. 27 and 57.)

The Earl of Eldon, ” the highest living authority,” has declared that the opinion of the Imperial House of Lords is in unison with the above recorded decisions of the House of Peers of Ireland, and of the Court of Session of Scotland . In his observations upon the Annandale case, as appears from the notes before this right honourable House, that noble and learned personage expressed himself as follows :-” the notion prevailing in this House, whether accurately, or inaccurately, remains to be considered ; but the prevailing notion of the House is this, I apprehend, That if it does not appear from some enjoyment of the Peerage that it goes to heirs male generally, you are to infer, the Patent not appearing, that it goes only to the heirs male of the body.”

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Notwithstanding the loss of ” the antient deeds and evidences” of the Lords Birmingham of Athenry, and of so many of the public records of Ireland , the following history of the family can be proved from existing documents :– That their ” first ancestor” in Ireland , Sir William de Birmingham, was one of the English leaders who went to that country in the reign of Henry II. , is shewn by a Patent Roll, remaining of record in the tower of London, from which it appears that he was one of the principal Englishmen in Ireland who, together with the Bishops, were called upon to be witnesses to the foundation charter of the abbey of St. Thomas the Martyr, near Dublin, founded in 1178, at the special command of King Henry II.

All the Irish records of that period have shared the same fate as the ” antient deeds and evidence” of the Lords Birmingham, and “are perished,” but many of them were still remaining in the reign of Henry VIII. , when Patrick Finglas, then Chief Baron of the Exchequer, prepared for the King and Privy Council of England, from the records in his custody and elsewhere, an official Report, the original of which is preserved in the State Paper Office, in London, and entitled ” a Breviate of the Conqueste of Ireland, and of the Decay of the same.” The following passage from this document will shew, that ” a dignity and honour” was vested in the ” first ancestor” of the family in Ireland, the aforesaid Sir William de Birmingham. ” Gylbert de Clare, Erle of Gloucestre,  whiche married the second daughter of William Erle Marshall , Sir William de Borgo, and Sir William Bermyngham, Lord of Anry, under Kyng Henry Fitz Empresse, were the principall conquerors of Connaught ; who, with their complices, dyd inhabite the same, and made it Englyshe, and obey the Kyng’s laws from O’Brenes country to Sligo in length, which is above 60 myles and more, and from Athlone to Galway in brede ; which continued so in prosperity 140 yeres to Kyng E. the 3rd is dayes. “

That Peter or Piers de Birmingham, the IInd Lord of Athenry, (who is stated by the annalists to have been the person from whom the different septs of the family of Birmingham branched off, and from whom they all assumed their general Irish appellation of Mac Phioris, or sons of Piers, as the descendants of de Borgo did that of Mac William,) was, in 1243, a great Baron of Ireland, is shewn by the Close Roll of the 28th Henry III. , preserved in the tower of London, from which it appears, that the King addressed a special letter of thanks, for their zeal in his service, to 22 of the Irish Princes, and to 10 of the principal Anglo Irish nobility, amongst whom is Peter de Birmingham. * That he died in the same year, and was succeeded by his eldest son Meiler de Birmingham the III. Lord of Athenry, is shewn by an entry in the Charter Roll of that year, in the tower of London, from which it appears that Meylerus de Birmingham obtained from the King the grant of a fair and market in his town of Adnere. This Meiler is stated by that learned and accurate antiquarian, Sir James Ware, (Vol. 2, p. 76, ) to have been ” Dynast, or Petty Prince of Athenry.”

That Peter de Birmingham, the eldest son and heir of the said Meyler, was a Peer of the realm and Lord of Parliament, in 1282, is shewn by the Great Roll of the Pipe 12th Ed. I. , remaining of record in Birmingham tower in the castle of Dublin, from which it appears that he was fined 100 shillings for not coming to Parliament. That this fine affords conclusive evidence that he was a Peer or Lord of Parliament, is shewn by the statute ofthe Parliament of Ireland , 25th Henry VI. cap. 29, which recites an ancient law that had until then been in force, ” 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 are lessened and wasted by war. It is ordained and established by the authority of this present Parliament, ( 1447, ) 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.”

That the said Peter de Birmingham, IVth Lord of Athenry, had an eldest son and heir Meiler, the care of whose marriage he confided to Queen Eleanor, the consort of King Edward I. , and who was, after her death, married with the sanction of the King, and in the presence of the Prince of Wales and of the principal nobility of the English Court ; and that the said Meiler died, leaving two daughters, who were his co-heirs, and the right heirs of the said Peter their grandfather, are shewn by two extracts from the Plea Roll of 31 , Ed. 1 , also remaining of record in Birmingham tower.

That neither of these co-heirs, nor their descendants, inherited the Peerage of their said grandfather, but that it descended to Richard de Birmingham IVth Lord of Athenry, second son of the said Peter, as next heir male of the family of Birmingham, is shewn by an Exchequer Roll of the 11th year of Edward II. , remaining of record in the office of the Chief Remembrancer of the Exchequer in Ireland ; from which it

*From James de Birmingham, a younger son of Lord Peter, descended the Lords of Thetmoy or Totemoy. His grandson John was, in 1319 , created Earl of Louth. Another branch of the family was created by Patent 33 Hen. VIII. , Baron of Carbery. These dignities all became extinct, in consequence of the failure of the heirs male of the bodies of the first Lords.

appears, that the King had ratified a convention respecting O’Conor, Prince of the Irish of Connaught, which had been entered into between Roger de Mortimer, Lord Lieutenant of Ireland, and Richard de Birmingham, Lord of Athenry, together with other Lords of the Great Council, whose names are not mentioned. The same Richard had, in common with the other magnates of Ireland, letters of thanks, of credence, and of military service, addressed to him in the 10th, 15th, and 18th years of Ed . II. , as his father had at various periods in the reign of Ed. I. It appears by the appendix to the Reports of the Lords Committee that he was considered as a Peer of England, as well as of Ireland, as he was summoned amongst the Barons of England, in the 12th Ed. II. to the Parliament held at York. This was four years after the decisive victory which he had gained over the Irish Princes at Athenry, on their march to join Edward Bruce ; and the year after the convention with Lord Mortimer, abovementioned. In that Parliament, the Earldom of Louth was conferred upon his cousin, John de Birmingham, Lord of Totemoy, for having defeated and killed Edward Bruce, who had been crowned King of Ireland. Lord Richard was again summoned 13th Ed. II . , to a Parliament held at York, and in the 14th Ed. II., to a Parliament held at Westminster.

The Regest of the Monastery of Athenry gives the following character of him. ” Idem Ricardus fuit austerus bellicosus nobilis et prudens, circumspectus in omnibus, quia principalis fuit in bello ville de Athinary in quo bello fuerunt interfecti de Hibernis tria millia A. D. 1315, et fuit sepultus cum patre suo dicto Petro in conventu fratrum ordinis prædicatorum de Athinary A. D. 1322.”

That the Lords Birmingham of Athenry were called upon to share in the glories of Crecy and Poitiers, is shewn by the Patent Roll 18th Ed. III. ( 1344) , from which it appears that as ” Dominus de Anry,” Lord Thomas, the eldest son of the above Richard, was one of the twelve magnates of Ireland summoned to join that King in his wars in France, with his proportion of ten men at arms, and thirty horsemen, with which he must have arrived in time to be present at the battle of Crecy. His cousin Walter de Birmingham, Lord of Totemoy, conducted thirty men at arms, and fifty horsemen upon the same occasion, being a greater proportion than perhaps was furnished to that war by any one family either in England or Ireland .

It is worthy of remark that four of the Peers summoned upon this expedition, namely Barry, Courcy, the Lord of Anry, and the Chieftain of the Rocheyns, (Roche Viscount of Fermoy, ) are precisely the same four who are found placed above two centuries afterwards, in nearly the same order, in the Parliament of the 2nd Elizabeth, above all the Viscounts who had been subsequently created by patent. (Vide Page 15.)

That the dignity continued to descend in the male line of the family of Birmingham, through the reigns of Edward III. and Richard II. , is shewn by the Patent Roll of the 30th Ed. III . , remaining on record in the Rolls Office in the Court of Chancery in Ireland, in which is a letter from the King to his beloved Thomas de Birmingham, Lord of Athenry, commanding him not to make war on “les Clanrichardes,” without the advice of his beloved and faithful Maurice Fitz Thomas, Earl of Desmond, whom the King was about to send over from England, with full powers to settle the dispute, or until he should have notified to the King’s Justiciary, and the Privy Council of Ireland, his reasons for the said war.

That he was succeeded by his third son Walter de Birmingham, his two elder sons Richard and John having died before him, without issue male, appears from an ancient attested copy of a family settlement, remaining of record in the Rolls Office , Dublin, in which the said Richard and John are stated to be his two elder sons, and which settles the family estates in remainder upon the most remote male branches of the family ; and from a Patent Roll in the same Office, of the 13th Richard II. , in which is a letter from the King to the Sheriff of Connaught, and to the ” Propositus,” bailiffs , and community, of the town of Galway, forbidding them, under pain of his severest displeasure, to allow to be sold, within their jurisdiction , any salmon caught, without permission, in the fisheries of Walter de Bermyngham, Lord of Athnery. That the said Walter was a Lord of Parliament, is shewn by an entry in the Close Roll of the 1st Richard II. , from which it appears that he was fined 100 shillings for not attending Parliament.

As the law above cited, which established the fine of a Peer of Parliament to be 100 shillings , was, at that period, in full force , and was not repealed until nearly 70 years afterwards, by the act of 28th Henry VI. , which equalised the fines of Peers and Commoners, it is submitted that this circumstance fully establishes the fact, that the dignity of a Lord of Parliament continued to descend in, and was limited to , the male heirs of the first Lord of Athenry.

The Government of England, distracted and weakened by internal commotions, was, during the next century and a half, unequal to the task of either affording protection to, or exercising control over, the Anglo Irish Peers residing in the remote provinces of Ireland. Its jurisdiction was limited to the Pale, or district immediately around Dublin ; comprising the counties of Meath, Dublin, Louth, and Kildare. Its feeble deputies, and the deputies of those deputies, continued to summon frequent parliaments at their pleasure, which were attended by the lords and principal gentlemen of the pale, but were neglected by the distant peers, upon whom fines could no longer be enforced ; and who were left, in a state of independence, to protect themselves by assuming the character of Irish chieftains. In this capacity, in addition to that of peers of parliament, the Lords Birmingham were recognised by the Crown, upon the restoration of its authority in the distant provinces ; as appears from several lists of the Irish princes, or chieftains , preserved amongst the state papers of the reign of Henry VIII. , as well as by the letters patent of that king, addressed to the Lord Birmingham of Athenry, otherwise the Mc Yoris.

Their names, consequently, do not appear in the official records from about 1400 until the year 1541, when we find the Lord Deputy Sentleger, and the Privy Council of Ireland, in a letter to Henry VIII., preserved in the State Paper Office, congratulating that prince upon the return of those noblemen to their parliamentary duties :-” which Lordes,” say they, ” have not been here for many years before.” The importance that was attached to their attendance in parliament, may be estimated from the following passage of the letter. ” And the Fryday, being ther again assembled, the Byll whereby your Majesty should be made Kynge of this Realme, was redde and declaryd to the said Lordes, who most willingly, with all the reste of the Lords Spirituall and Temporall, consentyd to the same.” Amongst these Lords, the Lord Bermyngham, of Athenry, is particularly specified . The Christain name of this Lord is not mentioned, but it appears from other authorities, hereinafter referred to, that it was John, the eleventh Lord Birmingham, of Athenry, who attended this parliament ; and that the present Earl of Dartmouth is his descendant, and heir general.

The history and succession of the Lords Birmingham of Athenry, would, for the causes above stated, have been involved in total obscurity from the reign of Richard II. , to that of Henry VIII. , but for the circumstance of their having, in the thirteenth century, founded a monastery at Athenry, the members of which, were bound by their institute to keep a registry of the families of their founders and benefactors.

From an ancient copy of the Regest of this monastery, preserved in the British Museum, (Sloane, MSS., No. 4784, ) it appears that Walter Lord Birmingham, of Athenry, who was fined for not attending Parliament, 1st Richard II. , lived until 1428, when he was succeeded by his son Thomas, the VIIIth Lord Birmingham, of Athenry, who died in 1473, ” in senectute bonâ.” To him succeeded his son Thomas, the IXth Lord Athenry , who is stated to have been a great benefactor to the monastery.

John, the eldest son of this Thomas, died in 1488, in the lifetime of his father, and an affecting account is given in the Regest, of the grief of his parents for the loss of their heir. He left no male issue ; but the Lords Cahir, now Earls of Glengall, claim to be heirs general of the Lords Athenry, through the marriage of Elizabeth, his only daughter, with Piers Butler.

A certificate, authorising him to quarter the arms of the Lords Athenry in right of such descent, was granted to Theobald Lord Cahir, in 1583 , by Nicholas Narbon, Ulster King of Arms, which was registered in 1596, by Christoper Usher, Ulster. The authority of this certificate is corroborated by various circumstances. In the Patent Roll, 3rd Henry IV. , is a pardon of alienation to Walter de Birmingham, knight, for having enfeoffed Thomas Fitz Walter de Birmingham, who afterwards became the VIIIth Lord Birmingham of Athenry, and was grandfather of the said John, in the manors of Knocgraffin , and Kiltenenan in Tipperary. After the year 1500, these manors are found to have passed away from the family of Birmingham , and to be vested in the Lords Cahir.

Lord Thomas was succeeded by his second, but eldest surviving son, Meiler, the Xth Lord Birmingham, of Athenry. The authors of the Registry would appear, from the terms which they use in speaking of the succession of Meiler, to have participated in the general feeling of the country as to the rights of male heirs.” Hic inseruntur quædam donationes quas conventui de Athnary fecerant Thomas Bremingham, ejusdem villæ Dominus, cujus uxor erat Anabla de Burgo, ac filius eorum, legitimus hæres Milerus nomine, jure primogenituræ succedens eis, providus dominus in antedictæ villæ regimine.”

After having delivered down the history and succession of the Lords Birmingham of Athenry, for nearly three centuries, namely, from the time of the foundation of the monastery, by Meiler de Birmingham, the IIIrd Lord of Athenry, whom it styles ” Meilerus Magnus de Birmingham,” the Registry ends in 1526 , apparently, in consequence of the suppression of the monasteries, which soon after took place.

It states that Meiler had succeeded his father Thomas, as Lord of Athenry, and was then living, namely in 1526.

The chasm of thirty- four years, which is left between this Meiler, Xth Lord Athenry, of the Registry in 1526, and the Richard, Lord Athenry who, as will be shewn, sat in the parliament of the 2nd Elizabeth, and obtained from that Queen, Letters Patent to himself, and the male heirs of his body, is supplied by the pedigree of the Earls of Dartmouth, in the hand-writing of the first Lord Dartmouth, who was [ secretary of State to Queen Anne. From this authentic document, it appears, that Meiler, Lord Athenry, was succeeded in the dignity by his son John, who must therefore have been the peer who attended the parliament of 1541 , above-mentioned. It appears, from the same authority, that the said John the XIth Lord Athenry, who was afterwards slain in the disturbances of the country, had a daughter Anne, married to William Legge, Esq., who, by her, was ancestor to the Earls of Dartmouth.

If this evidence required confirmation, it would be found in the inscription on an ancient monument of the family of Legge, now in Trinity Church, in the Minories, London, erected to the memory of Colonel William Legge, the father of the first Lord Dartmouth, which William is there stated to have been the ” eldest son of six, to Edward Legge and Mary Walsh, which Edward, was only son to William Legge and Ann Birmingham, of the truly noble and ancient family of the Birminghams, of Athenree, in the kingdom of Ireland.”

It appears from the surreplication of Edmund, Lord Athenry, in 1609 , as well as from the testimony of Sir Henry Sydney, and the Privy Council of Ireland, in 1569, both before cited, that upon the death of Lord John, the father of Anne Legge, disputes as to the succession arose amongst the junior branches of the family of Birmingham, that were not settled without the interference of the government ; which decided in favor of Sir Richard Birmingham, whom the Lord Deputy and Privy Council pronounced to be ” the right owner and heritable to the same. ” He is stated in the ancient pedigrees of the family, preserved amongst the MSS. of Trinity College, Dublin, to have been the fourth cousin of his predecessor, Lord John namely, the son of Edmond, the son of Richard , the son of Edmond, the son of Richard , the third son of Walter, the seventh Lord Birmingham of Athenry, above-mentioned.

The competition between the male branches of the family of Birmingham could have arisen, only, from the failure of the direct male line of Thomas, the eldest son and successor of Walter, and from the remoteness of the relationship between the next heir and the last lord . The interference of the English government in favor of the distant male heir, in preference to the heir general, whose husband was an Englishman immediately connected with the government, can be accounted for only, on the ground of the established usage of the country, which was the evidence of the limitation of these ancient dignities to the male heirs.

The whole of these circumstances are confirmed by an entry on the Patent Roll of the 33rd Henry VIII., from which it appears, that Lord John, who sat in the parliament of that year, had then quiet possession of Donmore ; for it contains a grant of suspension of the order for the general suppression of religious houses, in favor of the monastery of Donmore, at the special intercession of the Lord Bremyngham, of Athnary, in Conarde, otherwise Mc. Keoris, whose ancestors had founded it. It appears, however, from the terms used by Sir Henry Sydney, that Lord Richard had never obtained possession of Donmore, until placed there by the government, as the individual to whom it belonged by inheritance ; and it would seem from the surreplication of Lord Edmond, that the sept of Thomas Birmingham had possessed themselves of it immediately upon the death of Lord John, as they had retained possession of it for a considerable time when they were ” evicted” in 1569.

That the name of the male heir who had so succeeded as XIIth Lord Birmingham of Athenry was Richard, appears from an entry on the Memorandum Roll of the 30th Eliz. , which recites a fine of £200 imposed, in the 9th year of that Queen, upon ” Ricardus Brymingham, Dominus Baro de Athenrie ; ” and it is shewn by the family papers, proved before Sir James Scarlett, and referred to in his Report now before the House, that Lord Richard had succeeded to the dignity in 1550. That he sat in the Parliament held in the 2nd year of that Queen, as Premier Baron of Ireland , appears from the official list of that Parliament, remaining of record in the Rolls Office of the Court of Chancery, in Ireland.

That Queen Elizabeth was well aware of the original limitation of the dignity, which, in consequence of the subsequent loss of documents, can now be proved only by the continued usage and enjoyment, is evident from the letters patent which she granted to him in the 10th year of her reign ; and which, at his request were enrolled in the Exchequer ” in hæc verba,” by order of the Barons of the Exchequer. In these, she directed her Deputy and Chancellor to receive the Submission of the Lord Bremingham of Anry, in Connaught, and the surrender and resignation of his name of Lord Bremingham, and of all his ” manors, castells, lordshippes, lands, tenements, seignories, rules, hereditaments, comodities and profitts , with all and singular the appurtenances;” to be re-granted to the said Lord Bremingham and the heirs males of his body lawfully begotten, and to be begotten. This is the ” Composition” referred to in the surreplication, above cited.

That the above-mentioned Richard Lord Birmingham died in 1580 , leaving a son and heir Edmond, who succeeded him in the dignity, and that the said Edmond, the XIIIth Lord Birmingham of Athenry, had two sons, namely, Richard, the ancestor of the late Earl of Louth, and Meyler, or Moyler Boy Bremingham, the ancestor of the present claimant, appears from a Bill in Chancery, remaining of record in the Chancery of Ireland, filed in 1610, by Dorchan alias Walter Bourke Mc. Hubbart, of Donbally, as lessee of the said ” Moyler Boy Bremingham, son to Edmond Lord Barron of Athenrye,” against the said ” Edmond Lord Bremingham, and Richard Bremingham, the said Lord Bremingham, his son and heir apparent,” and from their joint answer thereto.

That the said Edmond, by the style and title of “The Lord Bermyngham of Athynrie,” sat, as Premier Baron of Ireland, in the Parliament holden at Dublin in the 27th year of Queen Elizabeth, appears from the official list of that Parliament, remaining of record in the Rolls Office of the Chancery in Dublin.

That the said Richard, the eldest son of Edmond, and the ancestor of the Earl of Louth, succeeded to the dignity as XIVth Lord, and, by the style and title of ” the Lord Bermingham,” sat in the Parliament of 1634, as Premier Baron of Ireland, appears from the Lords Journals of Ireland, which commence in that year.

That the said Richard had a son Edward, who died before his father, leaving two sons, Edmond and Francis, the elder of whom, namely, Edmond, being a Dominican friar, did, in 1641 , with the consent and sanction of his said grandfather, Lord Richard, renounce his rights to the dignity and estates of the family in favour of his said brother Francis, and his heirs male, appears from a document found among the family papers by the co-heirs of the Earl of Louth, and produced and proved before Sir James Scarlett, in support of their claim to the barony of Athenry ; as is stated in his Report, now before the House, of which the following is an extract :-” To prove that Richard Lord Birmingham of Athenry died about the year 1645, and was succeeded by his eldest grandson, Edmond, son of Edward Birmingham, who died before his father, and that the said Edmond was a Dominican Friar, and conveyed, or made a deed for the purpose of conveying , all his right and title to the honour and estate of Athenry to his next brother, Francis Birmingham, there was produced to me an original deed found among the family papers, dated 3 May, 1641, whereby Edmond Birmingham, styling himself of the blessed Order of St. Dominick, states :-“” That taking into consideration that the honour and title of Lord Birmingham, Baron of Athenry, in the Realm of Ireland , is to descend to me by the now laws of England, by and after the decease of my honoured grandfather, the Right Honourable Richard Lord Birmingham, Lord Baron of Athenry, as upon the grandchild and next heir of the said Lord Birmingham, &c. He by that deed conveys, as much as in him lieth, all his right and title and possibility of descent to the said honour and estate of Lord Birmingham, Baron of Athenry, to his dearest brother Francis Birmingham, &c. &c. &c. , that after the death of his said grandfather, the name, title, honour, and estate of Lord Birmingham, Baron of Athenry, be and remain to his said brother Francis, and his heirs male.”

A corroboration of the fact that the name of the son of the said Richard, and father of the said Edmond and Francis, was Edward, is found in a Bill in Chancery, now remaining of record in the Office of Chancery in Ireland, filed in 1629, by ” Dame Una Barronesse of Athenry, the widow and relict of Edmond, late Lord Barron of Athenry,” and claiming dower in the lands of her said husband ; from which it appears that the said lands had been inherited by the said Edward Birmingham of Donmore, Esq., and by the above-mentioned Moyler Boy Birmingham, of Connogher, Esq.

From this documeut it appears that the Chancery Suit above-mentioned, instituted by Moyler Boy against his father and elder brother had been amicably settled , and that he had given up his claim to Donmore to his brother Richard, who had settled it upon his own son Edward ; and that Moyler Boy had received in exchange a large extent of country, namely, the lands of Connogher, Dalgin, Cloondrone, Cloonrane, &c., for which, as will be hereafter shewn, he obtained a patent from King James the First, erecting them into the manor of Castle Connogher.

That the said Francis, to whom his elder brother, Edward, so resigned his right, succeeded to the dignity (most probably, notwithstanding the renunciation , not until after the death of his elder brother, the XVth Lord, for although his grandfather Richard died in 1644, he did not take his seat in Parliament until 1661), is shown by the Lords Journals of Ireland, from which it appears that he sat in the Parliament of 1661 as Premier Baron of Ireland.

It was in favor of this Francis, the XVIth Lord Birmingham, Baron of Athenry, that King Charles the Second, in 1663, wrote the Privy Seal letter which has been cited above, in testimony of the many signal services performed to the Crown by the family of Birmingham, and of the ancient creation of the dignity.

That the said Lord Francis had two sons, namely, Edward, who succeeded him in the dignity, and Remigius Birmingham, and that, in 1684, they were the only two surviving male descendants of Richard, the eldest son of Edmond Lord Athenry above-mentioned, appears from an original marriage settlement executed in that year by Redmond Birmingham, eldest son of Meyler or Moyler Boy Birmingham, the second son of the aforesaid Lord Edmond, upon the marriage of his grandson Francis; in which, after limiting his estates to his own male descendants, he makes a remainder to Edward Lord Baron of Athenry, and to his brother Remigius, and to their male issue, and in default of such issue, then to the male heirs of his own grandfather Edmond Lord Athenry in fee. This last remainder would have carried the estates of Dalgin and Clondargan to Thomas Duff (dark- haired) Birmingham, third son of Lord Edmond, and ancestor to the present Countesses of Leitrim and Charlemont.

That Remigius Birmingham, the said younger son of Francis Lord Athenry, died without issue, appears from three documents :-the first, an extract from the Registry of His Majesty’s Court of Prerogative in Ireland, certifying that Administration of the Goods of Remigius Birmingham, lately of Turlovaughan, in the county of Galway, who had died intestate, were granted to his widow and relict, Elizabeth Birmingham, of Caldwell, in the county of Bedford , on the 24th June, 1687; -secondly, an attested copy of the inscription upon a monument in Saint Mary’s Church, Huntingdon, which states that the said monument was erected to the memory of Elizabeth de Carcassonnett, widow of John Francis de Carcassonnett, Esq. , formerly the wife of the Hon. Remigius Birmingham, Esq., second son to Francis Lord Athenry, in the Kingdom of Ireland ; and which Elizabeth died, aged 85 , on the 3d day of June, 1749 ;  and thirdly, a certified copy of the will of the said Elizabeth de Carcassonnett, proved on the 6th December, 1749, by which she leaves her property amongst her nephews, nieces, and other relatives, and certain silver plate engraven with the Birmingham Arms, to Lord Athenry; and gives directions for the erection of the above monument.

That Edward, the elder son of the above Francis Lord Athenry, succeeded to the dignity, as XVIIth Lord Birmingham of Athenry, appears from the family settlement of his cousin Redmond, of Dalgin, in 1684, above cited ; and that he had issue an only son Francis, and a daughter Bridget, is proved by a petition presented by him, in 1707, to the House of Commons of Ireland , against the passing of a private bill interfering with the provisions of his marriage settlement, in which he states those facts. Being a Roman Catholic, he was then disabled from taking his seat in Parliament.

That the said Francis, his only son, succeeded to the dignity as XVIIIth Lord Birmingham of Athenry, is shown by the Lords Journals, from which it appears that he took his seat in the Parliament of 1713, as Premier Baron of Ireland.

That the said Francis Lord Athenry had an only son Thomas, appears from a deed executed by him, dated in 1749, and registered in the Registry Office in Dublin, which recites a marriage settlement executed in 1745, whereby the said Francis settles his estates upon his only son and heir apparent, the Hon. Thomas Birmingham.

That the said Thomas succeeded to the dignity and became XIXth Lord Birmingham of Athenry, is proved by the Lords Journals, from which it appears that in 1749 he took his seat in Parliament as Premier Baron of Ireland. That he was subsequently created Earl of Louth, and had no male issue by his Countess, appears from a deed executed by him 28th November, 1788, and registered in the Register’s Office in Dublin, by which, in consequence of such deficiency of male issue, he settles his estates on his daughters, who now enjoy them in virtue of that deficiency.

By the death without issue male of Thomas Earl of Louth and XIXth Baron of Athenry, the male line of Richard, the eldest son and successor of Edmond Lord Athenry became extinct, and the right of succession to the dignity of Lord Birmingham Baron of Athenry, devolved to the next heir male of Meiler, or Moyler Boy, Birmingham, who has been before proved to be the second son of the said Edmond Lord Athenry.

The said Meyler Boy Birmingham in 1617, obtained letters patent from King James the First erecting his lands of Connogher, Dalgin, Cloondrone, Clonrane, &c. , which, as appears from the Bill in Chancery, filed in 1629, by Una, Baroness of Athenry, above referred to, devolved to him as his share of the estates of his father Edmond Lord Athenry, into the Manor of Castle Connogher, with courts leet and other privileges . He appears to have been styled indifferently Meyler, Moyler and Moyler Boy (yellow haired) Birmingham: for, having, together with his brother Lord Athenry, been conspicuous for his loyalty to King Charles the First, all his lands were confiscated by Oliver Cromwell ; and, by the Survey and Distribution Book of forfeitures of 1641, remaining of record in the Record Department of the Vice-Treasurer’s Office in the Castle of Dublin, his name, as the forfeiter of those lands, is variously written Meyler and Moyler Boy. From the same book, and from a Bill filed in 1683 in the Court of Exchequer of Ireland, by his younger son Edmond, against his elder brother Redmond, the son and heir of the said Meyler, Myles the son and heir of Redmond, and William Higgins, and from their joint answer, it appears that part of these lands had been restored , in trust for the said Redmond, by the Court of Claims to the said William Higgins, whose name appears in the Book of Distributions as the person to whom they were so 66 disposed. “

That the said Redmond had a son Myles, and a grandson and heir Francis, appears from the original marriage settlement referred to above, executed on the 28th day of February 1634, by which the said Redmond settles his estates of Dalgan and Cloondargan, which had been so restored to him, upon his said grandson Francis and his heirs male, with remainder to his own male heirs, with remainder over to Edward Lord Baron of Athenry and to his brother Remigins, and to their heirs male, in case of failure of which he then gives the reversion in fee to the next heir male of his own grandfather, Edmond Lord Birmingham, Baron of Athenry, deceased.

That the said Francis Birmingham left a son and heir, namely, John Birmingham of Dalgan and Cloondargan, who was a Major in the Spanish service, appears from a Bill and Answer filed in 1735 in the Court of Exchequer, by James Hosty against Major John Birmingham. The latter in his answer claims under the above mentioned settlement, made in 1684, upon the marriage of his father Francis, by his great grandfather Redmond. In a letter written by the said Major John, in 1772, to his eldest son John, and found amongst the family papers, he states that in case of the death of the Earl of Louth without a son, the dignity of Lord Baron of Athenry would devolve upon his own issue, and exhorts him, as he had no issue by his wife, to settle his property on his younger brother Edward, in order that he might return to Ireland and be respectably married. This Edward was the father of the claimant.

That the said Major John Birmingham left a son and heir, namely, John Birmingham of Dalgan, Esq., who upon the death of the late Earl of Louth and Baron of Athenry, as next surviving heir male of Edmond Lord Athenry above-mentioned, assumed the title of Lord Baron of Athenry, and that the said John died without legitimate issue, leaving a nephew and heir-at-law, namely, John Birmingham of Dalgan and Cloondargan, an officer in his Majesty’s service, who was also grandson and heir-at-law of Major John Birmingham above-mentioned, appears from a Bill in Chancery filed in 1804 by Elizabeth Nolan, and the Answer thereto of Michael Birmingham, an illegitimate son of the said John Birmingham, commonly called Lord Athenry, as executor of the will of his said reputed father, and as guardian to his reputed younger brothers, in which these facts are fully set forth.

That the said Major John Birmingham of Dalgan, first above-mentioned, had two sons, namely, John, commonly called Lord Athenry, and Edward ; that the said John died without legitimate issue; that the said Edward, the younger son of the said Major John Birmingham, died in the life time of his said elder brother, leaving issue three sons, namely, Major John Birmingham the younger, late of Dalgan, Edward Birmingham now of Dalgan, and Francis Birmingham ; that the said Major John Birmingham the younger was killed in Spain in 1811, unmarried, and that the present claimant, Edward Birmingham, of Dalgan, is his next brother and heir ; appear from the evidence of Mrs. Elizabeth Francisca Roberts, a great grand- daughter of the said Major John Birmingham the elder, and wife of William Henry Roberts, Esq. , First Clerk of the Pells.

It has been before shewn that Queen Elizabeth was well aware, that by original limitation, or by usage taken as the evidence of such limitation, either of which must have been then, as now, the law of peerage, the Barony of Athenry vested exclusively in the male heirs of the first Baron: and that the same law then regulated the descent of the other ancient baronies of Ireland, is evident from the fact of most of these baronies having, during her reign, passed to heirs male, to the exclusion of heirs general.

That the rule of male descent, in these ancient baronies, was equally held as the law of Ireland by her successors, James I. Charles I. and Charles II., appears from the adjudications respecting them contained in the official book, entitled, ” Cases of Precedency,” which has been preserved in the Ulster Office, Dublin, and which has been received as evidence by the House of Lords.

In every case there stated, the peer to whom the precedence was assigned, claimed , and was adjudged, such rank, solely, as male heir of his predecessors the ancient barons of Ireland: for if these dignities had been held to be baronies in fee, there was not one of the contending parties, whose peerage would not have been, at the very period, vested in heirs female, and himself consequently entitled to no rank whatever in the Peerage.

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In the case of the barony of Kinsale, both the Crown and the House of Peers of Ireland have, at different periods, had occasion to decide judicially in favour of the right of the male heirs to the succession, although no original creation, or limitation of that dignity, except that of usage, can be adduced : and it will be hereafter shewn that all the ancient baronies of Ireland are regulated by the same principle of descent.

Gerald, the sixteenth Lord Courcy of Kinsale, died in 1599, leaving an only daughter, Mary, married, first, to Donogh O’Driscol, and secondly, to John Galway of Kinsale, Esq.; but the dignity devolved on the next heir male, namely, John de Courcy, grandson, by a younger son, of David the fifteenth Lord, who succeeded as eighteenth Lord Courcy of Kinsale. In the first year of Charles I. Sir Dominick Sarsfield obtained a patent creating him Viscount of Kinsale, against which creation the said John Lord Courcy and his son Gerald remonstrated by petition to the King ; alleging ” that the honour and title of Kinsale did of right belong to the said Lord Courcy.” The question was referred by his Majesty to a Commission composed of several of the highest officers of the Crown, to report ” touching the title of the Barony of Kinsale. “

After ” full hearing of counsel on both sides,” not only upon the claim of the Viscount, but also upon that of the heirs general which he brought forward : for, when the Lord Courcy had proved a prescriptive right to the dignity to be vested in his family, ” both by antient records, entries in Parliament, deeds under seal, both auntient and of later tyme, letters and certificates from our Counsell of that Realm hither, and from our Privie Counsell here to our Counsell there, That the now Lord Courcy, and his ancestors before him, have not only been stiled and named Barons of Kinsale, But that it appears by the records and deeds that the Lord Courcy was not only Lord Courcy but Baron of Kinsale and also of Ringrone. “-” Yett was then endeavoured on the Viscount’s part to avoid the petitioner’s right, both in course of discent, by carrying the Barony to another lyne, and also by attainder, which should cut off the title from him; but that both these allegacions were answered and clearelie avoided;” the Commissioners reported that the Lord Courcy had clearly established his right to the barony of Kinsale, and recommended that Sarsfield’s patent should be revoked, and that he should be created a Viscount by some other title. This Report was, with the advice of the Privy Council of England, ” ratified and confirmed in all points” by the King.

Gerald above-mentioned, the eldest son and heir of the said John Lord Courcy of Kinsale, became the nineteenth Baron; and died, leaving an only child, Mary, married to Sir Patrick Gough. He was succeeded in the dignity by his next brother Patrick, the twentieth Lord, whose eldest son John, the twenty first Lord, died, leaving two sons, Patrick and Almericus , and a daughter Ellen, married to Sir John Magrath.

These two sons succeeded to the dignity as twenty-second and twenty-third Lords Courcy of Kinsale, and both having died without issue male, leaving their sister Ellen their heir general, the title was assumed by Gerald de Courcy, the next heir male, who, by petition to the House of Peers of Ireland , claimed the dignity as a Barony by prescription, for ” that his ancestors have been, time out of mind, Peers of this Realm, and sitting Members of this House. ” The following decision upon the question is to be found in the Lords’ Journals of Ireland.

” Die Mercurii, 4th Octobris, 1721 .
” Resolved upon the question nem. con., That Gerald Lord Baron of Kinsale, and Baron Courcy, of Rinrone, is entitled to his seat in Parliament, and that the Lord High Chancellor do issue a writ of summons for the said Gerald, &c. accordingly.”

This Gerald, the twenty-fourth Baron of Kinsale, died in 1759, leaving no issue male, but four daughters, upon which the next heir male, who was descended from John the eighteenth Lord, presented a petition to the King, in which he claimed the dignity as a Barony by prescription. His petition was referred to the the law officers of the Crown, who reported in his favor. The following entry accordingly appears in the Lords’ Journals of Ireland of the 1st February, 1762 : -” John Lord Courcy took his seat upon the death of Gerald Lord Courcy. “

His grandson Thomas De Courcy is the 27th and present Lord Courcy of Kinsale, and the second Baron of Ireland.

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The co-heirs of the late Earl of Louth and XIXth Baron of Athenry have, as appears from the Report of Sir James Scarlett, now before the House, founded their claim to the Barony of Athenry solely upon the assumption that the Barony of Killeen is a barony in fee, and that consequently all the baronies of Ireland which take precedence of the Barony of Killeen are necessarily baronies in fee.

This conclusion is drawn from the following premises:-In England, where Parliaments have always been summoned by the immediate agency of Royal Authority, which alone has the power of ennobling, about one out of ten of the persons so summoned to the ancient Parliaments of England has been recognised as having thereby, and solely in virtue of the Royal act and intention, acquired an hereditary Peerage, supposed to have been founded on previous rights. A Peerage so acquired descends by no law, except the usage of England, (and that is stated by the Lords’ Committees to have been introduced at a late period) to the right heirs, whether male or female of the person so ennobled. Therefore, in Ireland, where a promiscuous assemblage of all ranks were summoned to Parliament, not by the King, but by persons who often summoned Parliaments without his sanction or knowledge ; and who had not the power to create Peerages, but were themselves for the most part commoners; where even the Chief Governors were, in virtue of ancient statutes, frequently elected by the ” Lords Temporal and Nobles of the land,” and by the same statutes were authorised to summon Parliaments at their discretion: where, as is proved by the enactments of the ancient Parliaments, individuals were summoned by special writs, who continued commoners whilst sitting, and after they had sat in those assemblies: where not only neither law nor usage similar to that of England, in this respect, ever existed: but where no claim to an ancient Peerage, upon such a ground, was ever brought forward ; writs of summons to Parliament, so issued, must necessarily have created Peerages in fee.

The Barony of Killeen is, perhaps, of all the ancient baronies of Ireland, that which is the best adapted to shew the usage and law of Ireland with regard to their descent. Although evidently of more recent origin than many of the others, the precise time and mode of its creation are unknown; but it has always, without any dispute or controversy, descended according to the law which regulated the rest; that is, exclusively to the male heirs of the First Baron. Sir Christopher Plunket, who was Lord Deputy of Ireland in the reign of Henry VI., and who is stated by Camden to have been raised to the dignity [” evectus est ad dignitatem”] of Baron of Killeen by that King, has always been regarded by the Lords of Killeen as the first baron of Killeen; and they have always styled themselves second, third, or fourth barons, according to their succession from him. If such evidence, as to such a fact, required confirmation, it would be found in a document produced by the agents for the female claimant of the Barony of Athenry, namely, the Statute 27th Hen. VI., which commences as follows :-” At the prayer of Christopher Plunket the younger, Lord of Killeen, cousin and heir of one Lucas Cusack, formerly Lord of the Manor of Killeen.”

The Parliament which passed this Act mark as strongly the distinction between the Lord of Parliament and the Lord of the Manor, as Edmond Lord Athenry, in his surreplication before recited, distinguishes his Parliamentary dignity of Athenry, from his Lordship of the Manor of Donmore.

The usage of male descent in the Barony of Killeen is decisively proved by the following documents :- Lucas Plunket, third Earl of Fingal , and tenth Baron of Killeen in male succession from Sir Christopher Plunket, by deeds of lease and release dated the 29th and 30th November, 1683, settled all his estates expectant on his own decease, on his son Peter and the heirs male of his body, with remainder over to his brother, his uncles, and the male descendants of several of his ancestors “in tail male, in such line as the ancient Peerage of Killeen would go.” Peter, the fourth Earl of Fingal, and eleventh Baron of Killeen, on the 17th September, 1698, after suffering common recoveries, made a settlement of his property, limiting it to the heirs male of his own body, with remainders to his uncle Nicholas, to his great uncle George, and to the male heirs of various ancestors of the family, ” in such line as the claim to the ancient honour of Baron of Killeen would go.”

This alleged barony in fee has, in three different instances, passed over female heirs ; and the male heirs enjoyed in each instance, according to the invariable usage in the succession of every ancient Irish barony, the place and precedency of their predecessors. Christopher Plunket, the third Lord Killeen, died 10th Edward IV., leaving an only daughter, Genet, who married Nicholas St. Laurence, Lord Howth, and was succeeded, to her exclusion, by his next brother Edmond, the fourth Lord Killeen. Christopher Plunket, the seventh Lord Killeen, sat in the Parliament 2. Elizabeth, and died, leaving three daughters, his co-heirs, but was succeeded, to their exclusion, by his next brother, James, the eighth Lord Killeen, who sat with the precedency of his ancestors, in the Parliament of 27. Elizabeth . Justin Plunket, the fourteenth Lord Killeen, and fifth Earl of Fingall, died in 1734 without issue, leaving three sisters, his co-heirs, and was succeeded, to their exclusion, by his distant cousin, Robert Plunket, the fifteenth Lord Killeen, and sixth Earl of Fingall, who was the grandfather of Arthur James Plunket, the present and seventeenth Baron of Killeen, and eighth Earl of Fingall, now a member of this Right Honorable House.

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The Lords Committees in their third report upon “the Dignity of the Peerage” (p. 49,) recognise the principle that, “there is an inference of law from facts.” In page 50, they declare that ” usage seems, indeed, to have made much of the law, by which the whole frame of the two Houses of Parliament has long been regulated ;”and also, that “the fact of a change in the law might be presumed from the modern usage being contrary to the ancient law.”

It is expressly denied that any change has ever taken place in the usage and law of Ireland, as to the right of inheritance of its ancient baronies being limited exclusively to the male heirs of the persons first ennobled for, as it has been proved above, that the descent of the Barony of Athenry, from the most remote period, has always vested in the male heirs of Sir William de Birmingham, the first Lord of Athenry, the same rule could equally be shewn to have applied, for nearly the same length of time, to the descent of the Barony of Kinsale, in the family of De Courcy; to that of Kerry, in the family of Fitzmaurice; that of Slane, in the family of Fleming; of Offaley, in the family of Fitzgerald; of Arklow, in the family of Butler, &c.

However, even conceding that such were not the case, but that, in direct opposition to the fact, the ancient law of Ireland had carried those dignities out of the families in which they originally vested, and, as daily occurs in the descent of the English baronies in fee, bestowed them, with female heirs, upon other families; still, the principle laid down by the Lords Committees, that “the fact of change in the law might be presumed from the modern usage being contrary to the ancient law,” would, at once, decide the question in favour of the heirs male.

An usage that has universally and uninterruptedly prevailed from the reign of Henry VII. , will scarcely be deemed a modern usage; and yet, were it conceded to those who wish, at this late hour, to introduce peerages in fee into Ireland, that it is so, still, according to the exposition of the law of the Peerage, as declared by the Lords Committees, the ancient baronies of Ireland must be considered as vested, by that rule, exclusively in the male heirs of the persons who then possessed them.

The numerous and promiscuous medley of persons who were summoned by the Justiciaries of Ireland and by their deputies, to the early parliaments of that country, do not appear, from any authority, either official, or historical, ever to have been classified previously to the reign of Henry VII., when the Lords Justices were deprived of the power which they had until then exercised, either in person, or by their deputies, of summoning parliaments at their pleasure, and without the previous sanction of the Crown.

From that period the peers of Ireland have sat as a distinct and separate body. No official list of those peers, as then recognised by the Crown, has been discovered; but this deficiency is supplied by various historians, who give the family names, as well as the dignities and precedence, of those who obeyed the order of King Henry VII., when, after the suppression of Simnel’s rebellion in 1487, he summoned all the temporal peers of Ireland to attend him at Greenwich. The accuracy of their statement is fully corroborated by the official list of the Lords of the Pale, who attended the parliament of 1490: And the family names of the distant Lords who, as has been stated in Page 7, did not then attend the parliament, is supplied by the official list of the parliament of 1541, when, with the exception of the Lord Courcy of Kinsale, all the Peers of Ireland attended. It is further confirmed by the fact, that no ancient peerage of Ireland, except those so recorded by these historians to have been then in existence, has ever since been recognised, or even claimed . But no official list of that period, except that of the parliament of the 2d Elizabeth, gives, at one view, both the family names and the dignities of all the peers of Ireland; and that is the only reason for the preference of that date to the period of the accession of Henry VII., in the following table.

In order to place the different usages of the two countries, with respect to the laws of succession to their respective ancient baronies, in a point of view at once clear and decisive, a synoptical table of the descent of the twelve ancient baronies of Ireland, as contrasted with that of twelve English baronies in fee, from the accession of Queen Elizabeth to the present time, will afford, it is submitted, the shortest and most comprehensive mode of illustrating the question.

Comparative View of the descent of The twelve ancient Baronies of Ireland, and of an equal number of the Baronies in fee of England, from the 2nd Elizabeth to the present time; shewing the Families by which they were then possessed, those through which the latter have since passed, and those in which all of them are now vested.

 

 

 

 

 

Of the Irish Baronies, that of Kerry is now vested in the Marquis of Lansdowne, that of Offaley in the Duke of Leinster ; of Arclow, in the Marquis of Ormond ; of Preston, in the Viscount Gormanston ; Delvin, in the Marquis of Westmeath ; Killeen, in the Earl of Fingal; and Howth, in the Earl of Howth.

‘Nomina Dominorum Spiritualium et Temporalium ac Commun : in quodam Parliamento Dominæ Reginæ apud Dublin, die veneris prox : ante festum S. Hillarii, XIº. die Jan”. An. Regni Reginæ Elizabeth 2do. coram Thoma Comite Sussex summonito et tento.

It has been satisfactorily proved, in a learned work lately published, in which many ancient records, that had hitherto escaped the researches of the few antiquarians and lawyers who had touched upon the subject, have been quoted and referred to, in illustration of the ancient political and parliamentary history of Ireland, that, from the accession of John to the Lordship of Ireland, down to the reign of Queen Elizabeth, the most sedulous attention was ever paid by all the successive Sovereigns, and most energetically enforced by all the successive Parliaments of Ireland, to preserve inviolate ” the laws and customs of Ireland.”

English statutes, however good in themselves, and necessary from circumstances, were not introduced without the proviso ” Salves toutez jours les bones custumes et usages de la terre.”

The Lords Committees, in their first Report upon the Dignity of the Peerage, (p. 326, ) when remarking upon the ordinance of the 31st Edw. III. , declare, that—”the ordinance seems clearly to refer to custom as constituting the legislative assembly in Parliament in Ireland, as the Statute of the 15th Edward II . did to the constitution of the legislative assembly in England.”

The custom of Ireland with regard to one essentially constituent portion of its legislative assemblies, namely, as to who should possess the hereditary right to sit in them as ancient barons of Ireland, is clearly shewn by the table of comparative descent. That custom cannot now be legally, or constitutionally violated , unless those who seek to introduce new theories and customs into the constitution of the Irish Peerage, can produce some positive statute authorising such violation. But no such enactment has been, or can be produced.

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The co-heirs of the late Earl of Louth, and Baron of Athenry, were advised to prefer claims to the Barony of Athenry, as the premier Barony of Ireland.

It has been shewn that such a claim is in direct opposition, not only to the usage by which the Barony of Athenry has hitherto descended , but contrary to the general usage and law of descent of all the ancient baronies of Ireland . The mode in which these claims have been preferred is equally contrary to the usage and law of England, with regard to the descent of dignities in fee.

They admit, in their petition, that the Barony of Athenry is an ancient dignity which has existed for above 600 years, and therefore necessarily long anterior to the period when any claim to a peerage by writ of summons could originate; but they do not attempt, as the law of England requires, to make themselves heirs to the first Baron of Athenry. They commence their pedigree from the twelfth Baron, avoiding all attempt to shew in what relationship he stood to the first Baron; although they could derive no right through him unless they could prove that the person through whom they claim, and whom they state to have been the 22nd Baron, was the right heir, or heir general of the person first ennobled. They do not attempt to prove the extinction of the female heirs or heirs general of the preceding Lords of Athenry, nor do they state whether the Earl of Louth, under whom they claim, inherited the dignity of Baron of Athenry, and Premier Baron of Ireland, as heir general, or as heir male, of the first Baron. In fine, they do not enter into a single proof, either as to the nature of the dignity which they claim, or as to the nature of their own claim to that dignity.

∗ A View of the Legal Institutions, &c. , established in Ireland during the Reign of Henry II. Longman and Co. 1830.

The claimant in fee concludes her Petition to the Crown by an Appeal, in which she prays His Majesty, to “restore to active existence , and to Ireland, a dignity which has flourished for more than six centuries.”

The claimant, as heir male, most earnestly joins in that appeal. Reflecting upon the acts of former Sovereigns and former Parliaments, he confidently relies that, by a decision of this Right Honourable House, a dignity which has been confirmed by an uninterrupted enjoyment of above six hundred years, will be preserved, in the name from which it has never yet been separated, and to the family that not only first nobly earned its honours, but has since illustrated them by a series of signal services performed to the State; and which have been gratefully recognised by successive Sovereigns of the two kingdoms, from King Henry III. , in 1243, to King Charles II., in 1663.

A. H. LYNCH.