The Fermoy Peerage Claim
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 1856 |
| Date | 30 June 1856 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1084
House of Lords
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. 52, 73; Read v. Bishop of Lincoln (1892), A.C. 644.
Act of Union with Ireland - Irish Peerage - Attorney - general.
IN COMMITTEE FOR PRIVILEGES. the fermoy peerage claim [April 8, May 19, June 30, 1856]. [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. 52, 73; Bead v. Bishop of Lincoln (1892), A.C. 644.] Act of Union with Ireland-Irish Peerage-Attorney-general. The word " peerage," in the fifth clause of the fourth Article in the Act of Union of Great Britain and Ireland, means the status and condition of a Peer, and therefore where one person held many titles, by any one of which he could sit in the Irish House of Peers, so long as any one of those titles remained in him or his descendants the loss of any of the others did not constitute an extinction of a peerage. A., before the Union with Ireland, was a Peer of Ireland, by the title of Earl M. That title had descended to him from an ancestor, to whom it was granted with the usual limitation to the heirs male of his body. Before the Union took effect, A. received a new patent, creating him Baron of M., remainder to the heirs male of his body, failing whom to B., and the heirs male of his body: A. died without leaving male heirs of his body, and the Earldom of M. was left without a successor, and the Barony of M. passed to B.: [717] Held, that this was not such an extinction of a peerage as was contemplated by the Act of Union, and consequently could not be taken as one of three extinctions, on the happening of which, the Crown could create a new Irish peerage. Qu. Whether when the validity of an existing grant of a peerage is questioned, the Attorney-general is bound to appear to support it. On the 14th May 1855 letters patent passed the Great Seal of Ireland, creating Edmund Burke Roche, of Trabolgan, in the county of Cork, Esq., a peer of Ireland, to him and the heirs male of his body, by the name, style, and title of Baron Fermoy, in the county of Cork. On the llth June 1855 an order of the House was made, " That the circumstances attending the creation of the barony of Fermoy be referred to the Committee for Privilege, to consider and report." Baron Fermoy presented a petition, praying that his right to vote at the election of peers for Ireland, to sit in the Parliament of the United Kingdom, might be admitted. The petition was referred to the committee. The committee sat on the 8th April, Lord Redesdale in the chair, and the Judges were summoned. The Lord Chief Baron, Mr. Baron Alderson, Mr. Justice Coleridge, Mr. Justice Creswell, Mr. Justice Erie, Mr. Justice Wightman, Mr. Justice Williams, Mr. Justice Crowder, Mr. Justice Willes, and Mr. Baron Bramwell, attended. The letters patent creating the petitioner Baron of Fermoy were produced and read. A return of " all the peerages of Ireland created since the Union, stating the peer- 1084 FERMOY PEERAGE CLAIM [1856] V H.L.C., 718 ages on the extinction, or supposed extinction, of which, each new peerage has been created, and also of all other peerages of Ireland supposed to have become extinct during the same period," was laid before the committee. The question submitted for the consideration of the committee was, whether there had been an extinction of three [718] peerages of Ireland before the creation of the Fermoy Barony. There had been undoubtedly two extinctions; the question arose on the earldom of Mountrath. In 1660, Sir Charles Coote, Bart., was created Baron Coote of Castlecuffe, Viscount Coote of Castlecoote, and Earl of Mountrath, with remainder to the heirs male of his body. Charles Henry, the seventh earl, was by patent, dated 31st July 1800, created Baron Castlecoote, with remainder to the heirs male of his body, and on their failing, with remainder to a distant relative, who on the death of this grantee in 1802 succeeded to that barony, the earldom then becoming extinct. Lord Campbell said, that he wished to call the attention of the committee to the circumstance that there were counsel attending to support the patent, and one learned gentleman was in attendance to oppose it; but though notice had been given to the Attorney-general, he was not in attendance. In such a question he thought it was the duty of the Attorney-general to attend the committee. The committee was by statute the proper tribunal to decide whether a person who claimed to vote for representative peers of Ireland was entitled to do so or not. As a grave question had been raised as to the validity of the patent, which was an act of the Crown, and that question had been referred to the committee, the Attorney-general was, in his opinion, bound to attend and give his assistance. Wherever, as here, there was a question as to the exercise of the prerogative of the Crown, it was not merely the right, but the duty of the Attorney-general to appear. This neglect to attend must not be drawn into a precedent. The Lord Chancellor.-The absence of the Attorney-general had not been occasioned by any negligence on his part, or by any want of respect for the House. Here a patent was presented, and an individual claimed certain [719] rights under it, and the question was, what were his rights? The Attorney-general being of opinion that that was a question affecting the patentee, but not the Crown, thought that it would be an indecorum in him to attend. The learned gentleman had fully stated in writing his reasons for this opinion. Lord Campbell did not understand how a doubt could be entertained on the matter. The Lord Chancellor said, that the doubt was sincerely and strongly entertained. Sir F. Thesiger and Sir F. Kelly (Mr. A. J. Stephen, Mr. P. Burke, and Mr. H. P. Koche, were with them), for the Petitioner.-This is a question on the construction of the fourth article of the Act of Union with Ireland.* There are [720] two dis- * By which it is declared, " That it shall be 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 crea- 1085 V H.L.C., 721 FERMOY PEERAGE CLAIM [1856] tinct branches in this article. The object of the first is to place a limit on the indefinite extent of the power of the Crown to create Irish peers; the second, is to keep up the number of such peers to 100. In arguing this question, the first principle to be remembered is, that the right of the Crown cannot be taken away by implication, but only by direct words. No such words exist here, and the Act of Union being in this respect a restraining statute, must be construed strictly as against the restraint. There is no question with respect to the peerages of Melbourne and Tyrconnell, but only as to that of Mountrath; and the point is, whether as the same individual held the earldom of Mountrath, with the barony of Castlecoote, the latter of which, on his decease, went under the patent of creation to another person (who could not succeed to the earldom), and is still in existence, the Crown cannot treat the extinction of the earldom as an extinction under the Act of Union. It is submitted, that the Crown has clearly the right so to treat it. The peerages are in fact different creations; have different limitations, and are inheritable by different persons. If they are not distinct for the purpose of extinction, they are not so for the purpose of creation or inheritance. That they are distinct for such purposes is clear from a passage in Coke (2 Inst. 594), where it is [721] said, " In the meantime this is to be observed, that the greater dignity doth never drown the lesser dignity, but both stand together in one person, and therefore if a knight be created a baron, yet he remaineth a knight still, and if the baron be created an earl, yet the dignity of a baron remaineth, et sic de caeteris." The only possible explanation for the difficulty now made is to be found in the loose wording of the Act of Union, where the word " peerage " has in a confused manner been applied to describe both the dignity itself and the body of peers. But a different...
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