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ON IRISH BARONIES BY WRIT.
THERE are few subjects connected with the history of Ireland, which furnish more interesting matter for inquiry than the laws that regulate the descent of the ancient baronies of that kingdom, many of which still remain in the possession of the male heirs of the original grantee, and are enjoyed by them, while the remainder have become extinct, dormant or in abeyance.
This subject has been ably treated by several genealogical writers,* more especially by Mr. Lynch, who in his " Feudal Dignities of Ireland," and "Case of Prescriptive Baronies," has with great labour and research nearly, if not altogether, determined that none of those ancient baronies could be inherited by heirs female.
Yet, however great diversity of opinion still exists on this subject, many claims have within the last few years been put forward by the representatives of female lines, and several of the most eminent counsel of the Irish bar, some of whom now sit on the bench of that kingdom, have given decided and strong opinions in favour of such claims.
The importance of this subject will be known from the fact, that if such claims be admitted, the effect will be to place, in all probability, nearly fifty different families in the place and precedence of the ancient baronies of Ireland, which they represent through female heirs, and consequently to declare that those peers, who now hold baronies as male heirs of the first grantees, have been wrongfully created peers to the exclusion of female heirs, and enjoy the place and precedence of such original baronies through mistake.
In the following pages we propose taking a review of the subject, and to shew the descent of the original baronies of Ireland, adding the arguments which have been put forward on both sides of the question, as to the singular difference which exists between the rules which regulate the descent of such baronies in England, and the rules which regulate those of Ireland, or at least which custom has all but established in the latter kingdom.
It is hardly necessary to remark, that in the former kingdom the early baronies, created by writ of summons, have invariably descended to the female heir, or if coheirs, it has gone into abeyance amongst them, and lain dormant until such time as the crown has been pleased to terminate the abeyance in favour of some one of the coheirs or their representatives, and thus many of these baronies have been inherited, (as in the case of the baronies of de Ros, le de Spencer, &c.†) by many different families passing in and out, through heirs and coheirs.
Cruise, on Dignities; Sir John Davis' Reports, Case of County Palatine; Coke's Institutes, County Palatine of Chester.
+ De Ros has passed by a coheir to the Manners, Earls of Rutland, from them to the Cecils, Earls of Exeter, back to the Manners, then to the Villiers, Dukes of Buckingham, then to the sisters and heirs of Manners, 6th Earl of Rutland, when the
While, on the other hand, in Ireland, baronies created by the same form of writ, by the same king, have in every instance, except one (which shall be mentioned hereafter,) gone to the heirs male of the original grantee, passing over in all but the one instance the claims of heirs female, it is the singular anomaly we would here discuss, endeavouring to place before the reader the different arguments which have been adduced in favour of each rule of descent by those who have examined and treated on the points involved in the question.
It cannot be doubted, that, after the conquest of Ireland by Henry II. King of England, all the early feudal dignities and titles introduced into the former kingdom were founded on the same laws, customs and usages, as those which regulated the honours then existing in England; and it is but reasonable to suppose that those who introduced them into Ireland would found them on the same principles as regulated those of the kingdom whence they came, and by which many of them held dignities there themselves.
Sir Hugh de Lacy received as a reward for his valour the entire county of Meath, which was erected into a palatine honour for him ; this enabled him to grant, as lord of that palatine, rights and liberties which constituted the grantee a baron of such honour. It is not intended here to enter into any discussion as to the nature and constitution of these baronies, which were without doubt modelled on the baronies of the palatines of England, and gave to the possessor all the rights and privileges and powers which belonged to what was then called a barony. There is however conclusive evidence that the baronies created of the palatine of Meath passed in several different instances to heirs female, and that their descendants were thence denominated.*
The lordship of Meath itself was divided between the two daughters and coheirs of Gilbert de Lacy, grandson of Hugh de Lacy, the first lord, the elder of whom, Maud, having married Geoffrey de Geneville, conveyed to him the lordship of Trim, and a moiety of Meath, and Margery, the youngest coheir, conveyed to her husband, the Lord John de Verdon, the remaining moiety. There is also equally satisfactory evidence as to the descent of the province of Leinster, the great heritage of the De Clares, which came to the Marshals, by marriage with Isabel de Clare, the heiress of Richard Strongbow, and which great inheritance was finally divided amongst her daughters and coheirs on the decease
abeyance was terminated in favour of Charlotte Walsingham, wife of Lord Henry Fitzgerald, in whose descendants it now remains.
The barony of Le de Spencer, passed by a female line to the Beauchamps, Earls of Worcester, thence to the Nevilles, thence to the Fanes, Earls of Westmoreland, then to the Dashwoods, to the Pauls, and now exists in the Stapyltons.
* Colmolyn passed from the Fitz Leons, to the Genevilles, and Simon de Geneville was denominated Lord Colmolyn, and thence to the Cusacks, the death of one of whom is entered on the Roll of the Mortelege of Kells. "Dom. John La Culmolyn, 1370. Delvin, held by the Nugents, went to the Fitz Johns, and back again to the Nugents, through female heirs. Killeen went from the Cusacks to the Tuites, back again to the Cusacks, and then to the Plunkets. These two latter baronies having been since that date in the Nugent and Plunket families, it has become a question how far the present peerages were inherited by the present Lords of Delvin and Killeen, or whether they are new creations wrongly placed in the precedence of the old baronies, which is the point we are now treating of, and the descent of which will be more fully explained hereafter.
of their brothers, without issue, a portion of which was inherited by the Fitzgeralds, and constituted the barony of Ophaley or Offaley, still held by their descendants.
Thus then it appears that the ancient feudal baronies of Ireland followed the same rules of descent as similar honours in England, for at least the first two centuries after the conquest of that kingdom; when therefore we find at a later period the descendants of those very persons, who themselves inherited from heirs female, summoned by the title of the barony thus inherited, in the usual form of a writ of summons, and afterwards this barony not passing in the natural course of descent to heirs female, but to the inheritor of the estate as heirs male, we can only come to the conclusion, that such barony was either one of tenure, or that the heirs female were wrongly disposessed, or that some remarkable alteration occurred at a later period which altered the usual course of descent in Ireland, making it different from that of England. mining these three points, and describing the singular anomaly which exists, it will be necessary first therefore to trace the origin of a writ of summons to parliament in Ireland.
To the parliament held in 1295, only twenty-nine persons were summoned; while to that held in 1309 at Kilkenny, eighty-seven were summoned, a very large increase in so few years; and the only account of which we have is given by Spenser, in his view of Ireland, who also alludes to the introduction of peerages by writ. The passage alluded is
"Eudoxius. You say well, for by means of freeholders their number hereby will be greatly augmented; but how shall it pass in the higher house, which still must consist of all Irish?"
"Iræneus.-Marry that also may be redressed by ensamples of that which I have heard was done in like case by King Edward the Third, (second) as I remember, who being greatly bearded and crossed by the Lords of the Clergy, they being then by reason of the Lord Abbots and others too many, and too strong for him, so that he could not for their frowardness order and reform things as he desired, was 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."
All statutes which were enacted in England, were immediately certified in Ireland, and became law there; and there is no doubt that at a very early period after the settlement of the constitution of England and the division of the Great Council of the nation into two houses, the same change was made in Ireland, and, as would appear from the above extract, the barons were summoned in the same manner as in England. The following writ to the celebrated parliament of Kilkenny in 1309, will shew the form used. It is also to be remarked that those writs were in many instances directed to the different barons, not by the names of their estates, but by their surnames, and those barons who did not attend were fined for non-attendance according to the usual custom, thus showing that in every particular the custom which regulated the parlia mentary assemblies of England prevailed in Ireland, each holder of certain lands being liable to be summoned to the council of the king.
Rex.-A. B. Salutem.-Sciatis super quibusdam arduis negotiis
noset statum terre nostri contingentibus vobiscum habere. Volumus tractatum specialem vobis mandamus quod scitis in propria persona, vestra apud Kilkeniam, die lune in octavis purificationis beato Marie, ad tractandum et parliamentandum cum justiciario nostro. Hibernie et aliis de concilio (nostro) et cum ceteris proceribus et magnetibus terre nostre super eisdem negotiis. Et Hoc nullatenus omittatis in fide que nobis tenemini. Et habeas ibi hoc breve. Teste Johanne Wogan, Justic, etc., apud Dublin viii. die Januarii, Anno Regni nostri tertio."*
It will not be necessary here to enter into the question, of whether the baronies followed the course of tenure? The question we consider is, whether the exclusion of female heirs was wrongful, or whether the male heirs were justly placed in place and precedence of the original summons to parliament? If the latter be correct, it must wholly rest on the ground that the laws of Ireland are different from those of England, and that the common law of the former differs from that of the latter, and thus a different derivation is given to the descent of the peerage of that country.
It will be well, before entering further into the question, to deduce the descent of two or three of those original baronies, showing where and how the heirs female have been excluded; and the heirs male placed and summoned in the original place and precedence of the barony.
The most remarkable descents are to be found in the baronies of
Kinsale; by the Courcys.
Ophaley; by the Fitzgeralds.
Le Poer; by the Poers.
The last barony in the above list is the exception before alluded to as furnishing the only instance of a barony of Ireland being inherited according to the laws of England, and given to a female heir.
Nicholas Le Poer was summoned to parliament as a baron in November 1375, by the name and title of Baron Le Poer; this barony was thus created by writ, which is still preserved in the Record office of Ireland. From him the barony descended uninterruptedly in the male line to Richard Le Poer, who was in 1673, created Viscount Decies and Earl of Tyrone.
James Le Poer became third Earl on the decease of his brother John second Earl. He left at his death in 1704, an only daughter and heiress Catherine Le Poer, who claimed as of right the ancient barony created by writ, and her claim having been submitted to the Irish House of Lords, was admitted by their lordships, and the ancient barony is now enjoyed by her descendant, the present Marquess of Waterford, who is Baron Le Poer, with the original place and precedence of the original barony created 23rd November, 1375.
Here then we have a solemn decision of the House of Peers, to the
* Sir John Wogan was at this date Lord Justice of Ireland Patt. Roll. Hib. 1093.
effect that the peerage law of Ireland is the same as that of England. Yet notwithstanding this decision the question is still apparently undetermined, no other decision having been come to by the House of Lords. Although several cases have of late years been submitted to it by claimants through heirs female, that such is also the opinion of the most eminent barristers of Ireland, will be seen from the following answers to queries submitted to them, and which may be shortly stated in substance as follows.
"The common law of Ireland as contradistinguished from the statute law, was and is exactly the same as the common law of England, as well touching the descent of peerages as all other subjects; it is not possible to maintain that any peerage Irish or English can, except by Act of Parliament, be regulated by a course of descent opposed to the course prescribed by the common law of both countries. A peerage created by letters patent will follow the course of descent presented in that patent. A peerage by writ will descend to the heirs lineal, male and female, of the person first entitled. A barony by tenure or as it is sometimes called by prescription, will follow the descent of the tenure when such exists; but this case may be put out of view as a species of dignity now quite out of use, save in a few special cases, and quite inapplicable to the present question. No custom or prescription can prove the control, or affect the common law course of descent of a peerage. The persons summoned to the parliament of Kilkenny in the year 1309, by writ of summons, became in consequence of such writs barons, and these baronies were inheritable by heirs male and female.
If the above opinion is correct, all those baronies which were created by the writs of summons in 1309, must, if not extinct, be in abeyance. None of the baronies, which now exist in the male heirs of the present day as representatives of their ancestors who were summoned to that parliament, have descended without the intervention of female heirs and coheirs. In deducing the descent of the several baronies which still exist or have been claimed, we will commence with the barony of Slane, which perhaps furnishes as numerous instances as any other of the intervention of coheirs, and the peerage passing over them, reverting to the heirs male. This claim has been several times before the House of Lords, a petition having been presented by Mr. Bryan, who claims to be, and is, without doubt, the representative of one of the coheirs of the last baron of Slane ; a claim has likewise been made by Mr. James Fleming as heir male. The House of Lords decided against the claim of Mr. Bryan in 1835.
Baldwin le Fleming, lord of the manor of Slane, in the lordship of Meath, was one of the palatine barons of that lordship. He was summoned to the parliament of Kilkenny by writ, in 1309, not by the title of Slane, but as Lord le Fleming. From him descended,
Christopher Fleming, fifth Lord le Fleming. He sat in parliament 29th Henry VI, but died without issue, when his sisters became his coheirs, namely:
Anne Fleming, the wife of Walter Dillon, Esq.
Annia Fleming, the wife of John Bellew.
Here then we had the first intervention of coheirs in the Slane peerage, and the first interruption to the lincal male-descent of that peerage on the death of Christopher, the fifth lord. David Fleming, son of the fourth