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The Fermoy Peerage Claim

State Trials Cited authorities 3 Cited in 1 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date30 June 1856
Date30 June 1856
CourtState Trial Proceedings
39 & 40 Geo. 3. c. 67. Act of Union with Ireland
THE FERMOY PEERAGE CLAIM. PROCEEDINGS BEFORE THE COMMITTEE FOR PRIVILEGES ON A CLAIM TO VOTE AT THE ELECTION OF AN IRISH REPRESENTATIVE PEER, APRIL 8th, MAY 19th, JUNE 30th, 1856. (Reported in 5 H.L. 716.) Reference by the House of Lords to the Committee for Privileges to consider and report on the circumstances attending the creation of the barony of Fermoy in the peerage of Ireland, and, also, on a petition presented by Baron Fermoy, praying that his right to vote at the election of Irish Representative Peers might be admitted. Tht Fourth Article of Union (39 & 40 Geo. 3. c. 67.) provided that it should be lawful for the Crown to create peers of Ireland after the union, "provided that no new creation of any such peers shall take place after the union until three of the peerages of Ireland which shall have been existing at the time of the union shall have become extinct . . . and as often as three peerages of . . . Ireland shall become extinct, it shall be lawful . . . to create one other peer" of Ireland. The Fermoy creation proceeded upon the supposed extinctions of the Mountrath, Melbourne and Tyrconnell peerages. The seventh Earl of Mountrath was created first Baron Castlecoote with a special remainder in default of male issue. On his death in 1802 the earldom of Mountrath became extinct, but the barony of Castlecoote passed, under the special remainder, to a relative. Held by the Committee for Privileges, in accordance with the advice of the judges, per PorLocn, C.B., ALDERSON, B., COLERIDGE, CRESSWELL, ERLE, WIGHTMAN, WILLIAMS, and CROWDER, JJ., contra Wimas, J., and BRAMWELL, B.- 1. Extinction of Irish peerage justifying new creation under the Act of Union Extinction of earldom, survival of barony. That the extinction of the earldom of Mountrath under the circumstances above mentioned, not involving any diminution in the number of peers of Ireland, could not be considered as the extinction of a peerage within the meaning of the Fourth Article of Union for the purpose of justifying a new creation ; and that therefore the petitioner had not established his claim. 2. Construction of statute Usage(i) (see below, pp. 750, 753-5, 766). 3. Meaning of the word " Peerage" (see below, pp. 737, 745, 746, 754, 764, 768, 778, 783-4). (1) In Pochin v. Buncombe, 1 H. & N. 857, Polsocx, C.B., remarked obiter," The rule amounts to no more than this, that if the Act be susceptible of the interpretation that has been put upon it by long usage, the Courts will not disturb that construction : Fermoy Peerage claim" ; see Broom, Legal Maxima, p. 638, 6th edition ; Maxwell, The Interpretation of Statutes, p. 423. This case raised a question as to the meaning of the provisions of the Fourth Article of the Act of Union with Ireland (39 & 40 Geo. 3. c. 67.), by which the Crown was restrained from adding to the numbers of the Irish peerage by more than one new creation for every three extinctions.(a) The Fourth Article, after (a) There have been no new creations in the peerage of Scotland since the union. This has been explained by Lord Cairns (Hansard, vol. 225, p. 1217) as due to the fact that the prerogative of creating Scotch peers was incident to the Crown of Scotland, and ceased to exist on the merger of the Crown of Scotland in the Crown of Great Britain by the Act of Union with Scotland, 5 Ann. c. 8. There is no express restriction on new creations in that Act, or in the Scotch Act which it incorporates, but the right to vote at the election of the sixteen representative peers of Scotland is limited to peers existing at the time of the union, their heirs and successors. In the reign of George beforeproviding, amongst other things, for the the union with Ireland, Irish peerages were created lavishly, and in many cases were conferred upon persons unconnected with Ireland by property or birth (see Lecky, History of England in the Eighteenth Century, vol. 4, p. 517 ; vol. 8, p. 396). Some such peerages had been conferred on Englishmen in previous reigns for services actually rendered in Ireland. At the time of the union the English Government desired to retain for the Crown an unfettered power of creating Irish peers. The Irish House of Lords, on the other hand, desired the power to be abolished. The provisions set out in the text above embody the compromise arrived at. See Correspondence of Lord Cornwallis, vol. 3, pp. 208-9, 214, 226 ; Pitts speech, Hans. vol. 35, p. 50 ; Report of the Select Committee on the Representative Peerage of Scotland and Ireland, Pali. Papers, 1874, H.L. 140. Speech of Lord Cairns, Hans. vol. 225, p. 1217. See also articles in the Gentlemans Magazine, of July, October and November, 1855, and in the Genealogist, New Series, vol. 5, p. I. 725] The Fermoy Peerage Claim, 1856. [726 representation of the Irish peerage in the House of Lords by "twenty-eight lords temporal of Ireland elected for life by the peers of Ireland," and that Irish non-representative peers might sit in the House of Commons for British constituencies ; and that " all questions touching the . . . election of any lords . . . temporal of Ireland to sit in the Parliament of the United Kingdom shall be decided by the House of Lords thereof," proceeded to enact the restrictions on now creations as follows : " That it shall he lawful for His Majesty, his heirs and successors, to create peers of that part of the United Kingdom called Ireland, and to make promotions in the peerage thereof, after the union, provided that no new creation of any such peers shall take place after the union until three of the peerages of Ireland which shall have been existing at the time of the union shall have become extinct ; and upon such extinction of three peerages, that it shall be lawful for His Majesty, his heirs and successors, to create one peer of that part of the United Kingdom called Ireland; and in like manner, as often as three peerages of that part of the United Kingdom called Ireland shall become extinct, it shall be lawful for His Majesty, his heirs and successors, to create one other peer of the said part of the United Kingdom ; and if it shall happen that the peers of that part of the United Kingdom called Ireland shall, by extinction of peerages or otherwise, be reduced to the number of 100, exclusive of all such peers of that part of the United Kingdom called Ireland as shall hold any peerage of Great Britain subsisting at the time of the union, or of the United Kingdom created since the union, by which such peers shall be entitled to an hereditary seat. in the House of Lords of the United Kingdom, then and in that case it shall and may be lawful for His Majesty, his heirs and successors, to create one peer of that part of the United Kingdom called Ireland, as often as any one of such 100 peerages shall fail by extinction, or as often as any one peer of that part of the United Kingdom called Ireland shall become entitled, by descent or creation, to an hereditary seat in the House of Lords of the United Kingdom ; it being the true intent and meaning of this article, that at all times after the union it shall and may be lawful for His Majesty, his heirs and successors, to keep up the peerage of that part of the United Kingdom called Ireland to the number of 100 over and above the number of such of the said peers as shall be entitled, by descent or creation, to an hereditary seat in the House of Lords of the United Kingdom. " That if any peerage shall at any time be in abeyance, such peerage shall be deemed and taken 88 an existing peerage, and no peerage shall be deemed extinct unless in default of claimants to the inheritance of such peerage for the space of one year from the death of the person who shall have beenlast possessed thereof; and, if no claim shall be made to the in-hesitance of such a peerage in such form and manner as may from time to time be prescribed by the House of Lords of the United Kingdom before, the said period of the expiration of one year, then, and in that case, such peerage shall be deemed extinct, provided that nothing herein shall exclude any person from afterwards putting in a claim to the peerage so deemed extinct; and, if such claim shall be allowed as valid by judgment of the House of Lords of the United Kingdom, reported to His Majesty, such peerage shall be considered as revived ; and in ease any new creation of peerage of that part of the United Kingdom called Ireland shall have taken place in the interval in consequence of the supposed extinction of such peerage, then no new right of creation shall accrue to His Majesty, in consequence of the next extinction which shall take place of any peerage in that part of the United Kingdom called Ireland."(a) On the 14th May 1855, during Lord Palmerstons administration, Edmund Burke Roche, of Trabolgan, who had represented the county of Cork in Parliament from 1837 to 1855, when he vacated his seat by accepting the Chiltern Hundreds, was raised to the peerage of Ireland as Baron Fermoy in the county of Cork. The letters patent conferring the dignity contained the following recitals- RICCITALS IN THE LETTERS PATENT. " Whereas by the Fourth Article of the Act passed in the fortieth year of the reign of his Majesty King George the Third, intituled An Act for the Union of Great Britain and Ireland, it was enacted, that it shall be lawful for His Majesty, his heirs and successors, to create peers of that part.of the United Kingdom called Ireland, provided that no new creation of any such peers shall take place after the union until three of the peerages of Ireland which shall have been existing at the time of the union shall have become extinct, and upon such extinction of three peerages that it shall be lawful for his Majesty, his heirs and successors, to create one peer of that part of the United Kingdom called Ireland : "And whereas it is by the same article provided that no peerage shall be deemed extinct...

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1 cases
  • The Fermoy Peerage Claim
    • United Kingdom
    • House of Lords
    • 30 June 1856
    ...English Reports Citation: 10 E.R. 1084 House of Lords The Fermoy Peerage Claim Mews' Dig. x. 309. S.C. 8 St. Tr. N.S. 723. As to evidence of usage in construction of statutes (5 H.L.C. 750, 753-5,766), see Pochin v. Duncombe, 1857, 1 H. and N. 857; Gorham v. Exeter (Bishop of), 1850, 15 Q.B......

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