Lords Sitting of 11 July 1879

MINUTES.
PRIVATE BILL—Report—Thames River (Prevention of Floods) *.
PUBLIC BILLS—Second Reading—Civil Procedure Acts Repeal * (132).
Committee—University Education (Ireland) (134).
Committee—Report—Wormwood Scrubs Regulation* (128).

THE CATHEDRALS COMMISSION—CONSTITUTION OF THE COMMISSION.

  QUESTION.
  THE ARCHBISHOP OF YORKasked Her Majesty's Government, Whether there is any objection to amend the Royal Commission on Cathedrals, so as to include in the number of the Commissioners the Visitor of each Cathedral in turn as well as the Dean and one of the Canons, when the statutes of the Cathedral are under consideration?
  THE EARL OF BEACONSFIELDsaid, he had considered the proposal of the most rev. Prelate. It appeared to him that the Royal Commission would be perfectly competent to deal with all the circumstances involved in the subject of their inquiry. In fact, to deal with those circumstances was the principal reason why the Royal Commission had been recommended. He might say, generally, that it appeared to him that the Ecclesiastical and Cathedral interests were sufficiently represented; and, therefore, though with regret, he must decline to recommend any modification of the Royal Commission.

ELECTION OF REPRESENTATIVE PEERS FOR SCOTLAND—THE EARLDOM OF MAR.

  QUESTIONS. OBSERVATIONS.
  THE MARQUESS OF HUNTLY (Lord MELDRUM:): My Lords, I rise to call attention to the recent election of Representative Peers for Scotland at Holy-rood, and to ask Questions relative to the Earldom of Mar Peerage. At the outset, I must say that the recent election at Holyrood was contrary to the spirit and the letter of the Report of the Committee of the House of Lords which has been before your Lordships. The Earldom of Mar, as your Lordships are aware, is involved in great mystery. I am not going back to the Dark Ages, which, some historians say the title springs from, but will only refer to the present generation, and I hope I shall be able to make myself perfectly clear. Before describing the election proceedings, I will shortly call to mind how the question is raised, and how it has stood since the Report of the Committee of 1877. The late Earl of Mar, who was also the Earl of Kellie, died in 1866, and Mr. Goodeve Erskine, who had al-
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  ways been recognized as the heir through the female line, became Earl of Mar; whilst Colonel Erskine succeeded to the Kellie title through the male line—and it was in this manner that the two titles became separated. Lord Mar voted repeatedly at Holyrood, and this was protested against on one or two occasions. A very curious thing occurred in the General Election of 1868, when there was a double return. The noble Lord's father and Lord Rollo were elected, and neither of them could take their seats in this House, because, if this had been done, there would have been 17 instead of 16 Representative Peers. In 1869, the late Lord Kellie petitioned the House to amend Lord Mar's vote; but instead of proceeding with the Petition he withdrew it. After Lord Kellie's death, the present noble Lord presented a Petition to Parliament claiming the title of Mar. The present Lord Mar opposed the claim. The matter came before your Lordships' House; and, after a considerable time, the Committee of Privileges decided, on the 25th February, 1875, that Lord Kellie had made out his claim to an Earldom of Mar dated 1565. On the following day there was an Order transmitted to the Lord Clerk Register, which had an important bearing on the case; and at the next election of Representative Peers there was considerable disturbance, there being two Earls of Mar present, and so unseemly were the proceedings that they ended in a great deal of rather undignified conversation. The Lord Clerk Register would not hear the Earl of Mar; but no one protested against him. After a few months had elapsed, the noble Duke opposite (the Duke of Buccleuch) brought forward a Resolution on the subject, to the effect that at the meeting of the Peers of Scotland, assembled by Royal Proclamation for the election of Peers, the Lord Clerk Register or the Clerk of Session should call the title of Mar on the roll of Peers according to the Resolution of the Committee of Privileges on the 26th February, 1875. The noble Duke moved that; and I moved the Previous Question, maintaining that it was impossible to alter the Union Roll, where the date of a Peerage had been fixed by the Act of Union and the Decreet of Ranking. The question was referred to a Committee, and I think it was the opinion of

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  the majority of the Members—and I can safely assert that it is the almost unanimous opinion of the majority of Scotchmen—that you cannot have tampering and tinkering with the deed Roll of Peers. The Committee declared that the ancient Earldom was on the Union Roll, and that Lord Kellie had not got it, but a Peerage dated 1565, which was not on the Roll, and which was given him by the Committee of Privileges. They did not recommend any Order on Lord Kellie's Petition, but left the Statute of 10 & 11 Vict. c. 52, to provide for any future claim. I have now given a brief resumé of the history of these two Peerages. And now I will come to what occurred the other day at Holyrood. The Roll of Peers of Scotland was called, and the moment the Earldom of Mar was called, the Earl of Kellie answered to the title which was called out as it stands on the Roll. His vote was protested against by two noble Lords present this evening, and by about nine or ten Peers by proxy; but his vote was, as far as I can learn, received and accounted for. What, under the circumstances, has the Clerk Register done? Has a certified copy of the whole proceedings been submitted to the Clerk of the Parliaments? Under the 3rd section of this Statute it was enacted that if at a meeting for the election of Representative Peers a protest against a vote be made by two or more Peers present, the Lord Clerk Register shall forthwith transmit to the Clerk of the Parliaments a certified copy of the whole proceedings; and I want to know whether such a certified copy was made, and what it is the intention of the Government to do in the matter? If the proceedings have been submitted to the Clerk of the Parliaments, this House may order the claimant to come forward and establish his claim. On this question we are in a painful and peculiar dilemma. In the first place, the Committee of Privileges have decided that Lord Kellie does not hold the Peerage which stands on the Roll, but has got a Peerage dated 1565; he tenders his vote, and it is recorded. So the Lord Clerk Register is in this predicament he has either accepted a vote from a Peer holding a Peerage which is not on the Union Roll, or he has allowed a Peer to vote for a Peerage under protest of two Peers present, without trans-
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  mitting a Report of the proceedings to this House, and in defiance of the decision of the Committee of Privileges affirming that the Peer in question has not made good his claim to that Peerage. That is an awkward predicament, and it is an important question for the Peers assembled at Holyrood to know whether a vote should be recorded or whether the Union Roll should be altered or not. But the Lord Clerk Register has done even worse than this. He has actually received the vote of a Peer who is under attaint at the present time. I must go back again slightly to prove this to your Lordships. When Mr. John Francis Erskine, in 1824, appealed to the Crown to be restored to the titles of honour of his grandfather, who died in 1715, that Petition was referred to Sir John Copley. The Law Officers of the Crown inquired into the matter, and reported upon it. Mr. Erskine was the grandson of Lord Mar, who used the title in 1716. His mother, Lady Frances Erskine, was the only child of the attainted Earl who had issue, and she married her cousin, who afterwards became heir male of the family. But this is the most important point in the whole discussion. When it was referred to Lord Lindsay to decide whether Mr. Erskine had proved his right to the title of Earl of Mar, he distinctly reported in favour of Mr. Erskine, ignored Mr. Erskine's father, and as for the male heirship, only mentioned him as the legal husband of Lady Frances Erskine. The Law Officers of the Crown also reported that the grandson of the attainted Earl had made out his title and proved his pedigree solely through his mother. Therefore, he was restored, and placed on the Union Roll above the Earl of Rothes. It was clear that any other Earldom of Mar, except the one restored through the female succession, could not have been excluded from the attaint. The Peer holding that title, dated 1565, is still under the "ban;" but he votes as the old Earl of Mar on the Roll, and holds a Peerage by a Resolution of the Committee of Privileges, which was not included in the dignities restored by the Crown under the Report of the Law Officers in 1824. What I want to know is this. Can the Lord Clerk Register call the new Earldom of Mar, dated 1565, in any place on the Roll, when the Report of our Committee says that order of precedence on the Roll

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  has never been altered? We distinctly proved before the Committee that there was no precedent for any alteration. You can put a Peerage up; but there is no precedent for bringing a Peerage down. Ought not Lord Kellie to be prevented from voting for a Peerage which the Committee of Privileges have decided against him; and from tendering his vote for a Peerage not on the Union Roll, and which is under attaint, if it exists at all? I bring the subject forward without any wish to open up sores which I hoped long ere this had been healed. A General Election may, I believe, take place soon; and what will be the result then? There will be strong protests against the Roll being received. I appeal to the Lord Chancellor to get us out of this muddle. I have no desire to disturb the harmony usually existing at the election of Scottish Peers; but there is clearly a flagrant violation here which should be put right, and I shall continue my protests against any Peerage which does not exist being on the Roll.
  THE LORD CHANCELLOR: The noble Lord communicated to me two Questions which he proposed to put to me, and I will answer them to the best of my ability. I have no intention whatever of following the noble Lord in the range of discussion upon which he has entered. I cannot imagine what possible object the discussion can have in this House, after the decision at which the House has arrived. I will state the two Questions which the noble Lord put to me, in order to make the matter intelligible. The first Question, as I understand it, was, Whether the Lord Clerk Register was right and justified at the recent election at Edinburgh, when the Mar Peerage was called in the course of calling over the Roll—was he justified in receiving the answer to this Peerage from the noble Lord the Earl of Mar and Kellie? All that I have to say upon that subject is this—that the Peerage on the Roll which is called the Mar Peerage is not the Peerage which has been attached in this House to the Earl of Mar and Kellie; and, therefore, the Earl of Mar and Kellie should not be allowed to answer in this call. Now, as to the Resolutions of your Lordships' House, I have no right to interpret them; but I will state what I understand they mean. In 1875, the Committee of Privileges made a Report to the House
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  on the Peerage to the effect that the petitioner, Walter Henry Earl of Mar in the Peerage of Scotland, had made out his claim to the Earldom of Mar created in 1565, and ordered that at future meetings of the Peers of Scotland assembled under Royal Proclamation for the election of a Peer the Lord Clerk Register do call out the Earl of Mar according to his place on the Roll, and that the Peer called at such election should receive for the county the vote of the Earl of Mar claiming the vote, and permit him to take part in the proceedings of such election. Now, the Roll of the Peers of Scotland is a public document, and in that Roll there is only one entry of the Earl of Mar. It may be in its right or wrong place—I cannot say anything about that—it is there, and it is to that that this Resolution must have necessarily referred, and there is nothing else for the Lord Clerk Register except to call, and when he is called, he is told he is to receive the county vote. I do not see how any question can arise as to the duty of the Lord Clerk Register. The Order of your Lordships pre-supposes that he is to call the title of the Earl of Mar. The second Question is this. Protests were entered, as I understand, at a recent election against what was done, against Lord Kellie being allowed to answer to the call of this Peerage; and the noble Lord asks, Whether the Lord Clerk Register ought not to have referred the whole proceeding to the House of Lords, in pursuance of the Statute 10 & 11 of the Queen? This is rendered plain by the words of the Statute. The Statute says—
  "That if at a meeting for the election of a Representative Peer any person shall appear and vote, or claim to vote, in respect of any title or peerage on the Roll, and if any protest if made by two Peers present, the Lord Clerk Register is to transmit to the Clerk of the Parliaments a certified copy of the whole proceedings, and the House of Lords may order the person, whose vote or claim has been protested against, to establish the same before the House; but if he does not appear, or fails to establish his claim, the House will order that his vote shall not be received or counted at any future election."
  The Earl of Mar should have been called upon to establish his title here; but he has never done so. If there is to be a protest entered against any person who has not established his title, that protest in to be set forth, and the House of Lords may call upon that person to establish his title. These are the answers which

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  I should respectfully offer, and I do not desire to take any further part in the discussion.
  LORD BLANTYRE: My Lords, on the death of Alexander Earl of Mar, in 1435, Sir Robert Erskine claimed the Earldom through his wife, and assumed the title. His successor, Thomas, first Lord Erskine and second. Earl of Mar, was dispossessed of the Earldom in 1457 by the Assize of Error. The succeeding Lords Erskine never ceased to claim the Earldom: but it was retained and enjoyed by members of the Royal Family of Scotland. In 1565, John, fifth Lord Erskine, and properly sixth Earl of Mar, obtained a re-hearing of the case, when he clearly proved his rights and was reponed by Queen Mary in the Earldom, restituit per modeam justitiœ. The common sense view of these facts is, that the Queen restored to the Erskine family—who had possessed the Earldom for 22 years, 1435–57, were then deprived of it, but on a new trial in 1565 established their right to it by female succession—that which they claimed, and did not create instead a new Earldom confined to heirs male only. On these grounds, I hold that the decision of the House in favour of there having been a new Earldom created in 1565 was erroneous; that there had been all along one Earldom, which should have been awarded, not to the Earl of Kellie, but to Mr. Goodeve Erskine, the heir by female descent.
  THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES): It appears to me an extraordinary thing to attempt to resist the decision of this House upon a point which no other body but the House can decide. By the Union with Scotland the Peers of Scotland are placed in precisely the same position as the Peers of England, and there is nothing which the Peers of this country can hold more dear to them or more important than that this House shall be the sole judge as to whether they are entitled to their honours or not. The question of this Peerage was gone into in the fullest possible manner, and none but those who have gone into the whole case and investigated all the evidence brought forward are really competent to pronounce an opinion upon it. To pick up small matters from other authorities than those which were brought before the House is not a fair way of discussing the question. The place of the Earldom
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  of Mar on the Union Roll is that given to it by the Decreet of Banking which took place in the time of James VI., in the year 1606. That Decreet of Banking is by no means perfect. On the contrary, it has been open to dispute from the first down to the present time. At the time of the Union what happened in this matter? On the production of the Roll the Earl of Sutherland took notice in the House that there was pending between him and the Earl of Crawford some dispute about precedency, and that there were others of a like nature; and, in 1707, the list of Peers was laid upon the Table, and the same was ordered to be entered on the Roll of Peers with this salvo—that whereas there were several Protests entered on the Records of the Parliament of Scotland in relation to the precedency of Peers, such Protests should have the same force as if they had been entered on the Roll of Peers, or in the Journal of the House—thereby recognizing its authority over these disputes with regard to precedency; but the House has never altered any of the places on the Roll, although, by the clearest evidence, proved to be wrong. Very soon after the Union in 1707, the Duke of Ormonde claimed the Peerage of Dingwall, which was not on the Roll. He claimed to be placed on the Roll immediately after Lord Madderley, and the matter was referred to the Committee of Privileges, and the Committee of Privileges reported that he ought to be taken next before Lord Cranstoun. The difference was that that gave to Lord Dingwall higher right than he claimed. Therefore, the House obviously has the power of determining where the Peers should be placed on the Union Roll, when not already upon it. With regard to the question of what is called the ancient Earldom of Mar, the precedence which was given by the Decreet of Banking was not that of the ancient Earldom of Mar; and no one can say that the ancient Earldom of Mar is the one placed on the Union Roll by the Decreet of Banking. From 1377 down to the present day no one has been received as representing the ancient Earldom of Mar, either in the Parliament of Scotland or in the Parliament of the United Kingdom. The date given to the Earl of Mar by the Decreet of Banking was that of 1457, and he was placed between Lord Rothes, created 1558, and the Earl of Errol, who was created in 1452. But,

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  in the Decreet of Ranking, no dates were given; the Peers were merely placed in their several places without giving specific dates. But it is most important to note that the place he was put in was 1457. The decision of the Decreet of Ranking turns on the documents laid before the Commissioners by the Peers themselves; and of these, the most important documents were the surrender of the territorial comitatus of Mar in 1404 by Isabella, who was the neice of the last heir male, and who was, no doubt, his heir general; and re-tours showing that the Earl of Mar was her heir general. The Commissioners for the Decreet of Ranking refused to admit that the comitatus surrendered by Isabella had a peerage Earldom attached to it, and they did not, therefore, give a precedence of 1404, thereby declaring that that surrender and re-grant did not contain the Earldom. It was a surrender of the territorial comitatus only, and they would not give him that precedence. And I would remark on this that in the elaborate protest made by Lord Crawford at the last election, he declared that the precedence that was allowed by the Decreet of Ranking was a precedence of 1404. Now, my Lords, the precedence was not given of 1404, but of 1457. I would also remark that Lord Mar did not bring before the Commissioners for the Deereet of Ranking the Charter by which the territorial comitatus was restored by Queen Mary to his father; but he gave these other documents, evidently desiring that by their allowing him precedence on the date of that surrender and re-grant to Isabella they would acknowledge his right to the Peerage, which he, of course, might then contend she inherited. Now, the question is, why was the precedence of 1457 given to him by the Commissioners? I hold it to be a distinct proof that they were determined that by no act of theirs would they recognize the existence of the old Earldom of Mar. Nobody would pretend that that was the date of the ancient Earldom of Mar, the last heir male of which died in 1377. James II. created one of his younger sons Earl of Mar. Therefore, there was an Earl of Mar in 1457, and if anybody claims under the finding of the Decreet of Ranking, that is the Earldom of Mar which would make their title good, because that is the only one which is at all connected with the one that appears on
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  the Union Roll. The report of those who gave judgment in the late ease was that the Earldom of Mar had been a new creation from the time of Queen Mary, and that no other Earldom of Mar was then existing. That was proved, I say, by the extinction of that Earldom for 500 years, during which time no person has been acknowledged in Parliament as holding the ancient Earldom. Therefore, that the entry of the Earldom of Mar in 1457 was an erroneous entry everybody will admit, whichever way their opinion may be. There is no doubt that the Earl of Mar in James the VI.'s time desired to make good his claim to the ancient Earldom, and he put in those documents, and kept tack other documents that might have induced the Commissioners, if they had had them then before them, to give the real date—namely, the date of the year in which he was created. My Lords, if every Peer is to determine whether the judgment of this House is right or not, and to act upon his own idea in a decision of this kind, confusion of the most unfortunate character must necessarily arise. The decision of this House is that the vote of the Earl of Mar is to be received when that Earldom is called on the Union Roll; the House never having as yet altered the placing on the Roll, although found to be incorrect; and if Peers individually are allowed to come forward and say—" We do not approve of the decision of the House in this matter," there will be very objectionable proceedings from henceforth in the election of the Peers for Scotland. My Lords, I think there was great reason in the Motion made by the noble Duke (the Duke of Buccleuch), who proposed that there should be an alteration in the placing of that Earldom; at the same time, there is no doubt, if you once begin altering the Union Roll, there are so many errors in it, that claims would be made for the alteration of precedence, and they would be such as to give the greatest possible trouble and inconvenience to the House; and, therefore, it may be desirable to allow the Peers to be called in the wrong place rather than take the trouble of altering their place. Now, my Lords, I would just mention what occurred in regard to a Peerage that was restored some time ago—that of my noble Friend Lord Balfour of Burleigh. That is a Peerage which, I think, it has

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  been proved to the House was created in 1607; and the findings of the House with regard to the placing of Lord Dingwall were that he was created in 1609; they also found that Lord Cranstoun had been created in 1609—a little later—and they put Lord Dingwall before Lord Cranstoun; and in putting him before Lord Cranstoun they put him before Lord Balfour of Burleigh, who stood between Lord Cranstoun and Lord Madderley. Therefore, I say, the confusion you would get into if you once began altering the Union Roll would be very great. The Decreet of Ranking was all done with regard to the whole Scotch Peerage in a very short space of time—in about a year—and it was done entirely upon whatever documents the Peers themselves might think fit to produce; while the evidence before the Committee of Privileges in the Mar case was of a very different and much larger character. My Lords, having taken part in that judgment, and taken great pains with it, I say that all the Lords who took part in it declared it to be their opinion that when Lord Erskine was created Earl of Mar there was no Earldom of Mar in existence to which he could have been restored by Queen Mary; and if anyone has complaint to make that Lord Mar is not entitled to the place given to him upon the Union Roll, the only Peerage he can claim on the date given by the Decreet of Banking must be that Peerage which was granted by James II. to one of his younger sons, who died without issue in 1479.
  THE EARL OF GALLOWAY: I must say, my Lords, that I was not prepared to hear the noble Earl the Chairman of Committees speak in such contemptuous tones of the Decreet of Ranking. He informed us that it was, in fact, a simple declaration made on the production of the best documents which the Peers at that time could produce. No doubt they had to produce what documents they had; but I think I can tell you something about the Decreet of Banking. The Peers of Scotland in 1606 were for the first time ranked by order of the King under the Great Seal, and the rank there established indicated the place on the Roll in which the particular Peer's name was entitled to be, and, of course, his precedence; but there was a provision in it by which a Peer could obtain a higher rank by the production of more ancient documents—and
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  I may say that the Earl of Mar produced documents showing a descent from a maternal ancestor 100 years before Queen Mary's time. I am not going into the question as to which documents are most reliable; but I ask the House to listen to me while I show your Lordships that this House, in fact, is not a competent tribunal to determine the rights of Scotch Peers—for, by the Treaty of Union of 1707, it was expressly provided that the judgment of the Court of Session in Scotland with respect to disputed peerages would be final. My Lords, the judgment of the Court of Session was obtained in the year 1626; and, therefore, I say that in any case such as this tried by the Court of Session before the Act of Union it is not competent to your Lordships to reverse its sentence. But, moreover, my Lords, it has been stated on the highest authority that the Report of the Committee of Privileges is not a judicial proceeding—it is a mere expression of opinion—and I do not think even my noble Friend at the Table (the Earl of Redesdale) will controvert it, seeing that it was so stated by my noble and learned Friend on the Woolsack, and also by Lord Chelmsford in 1876, who distinctly enunciated the principle that the opinion of the Committee of Privileges was simply a Report to your Lordships' House, and not a judgment given by your Lordships' House as a judicial Court. I understand, indeed, that Resolutions found upon the Report may be submitted to Her Majesty, and Her Majesty, as the fountain of all honour, may adopt it, and thus give a final decision. But in this particular case what was done was done—for some unexplained reason, the moment the Report was made and the Resolution passed it was sent off to Edinburgh, without there being any opportunity to show it to the Sovereign, and the Lord Clerk Register was directed to place the name of the Earl of Mar on the Roll of Peers in the position in which it stands—thus reversing the decision already given previous to the Union; and that, my Lords, I say it is not competent to your Lordships' House to do. Then, my Lords, I think it is plainly proved that the ancient Earldom is still in existence, and traceable in family succession through the female line. It is true that the Earldom was for some time attainted; but it was restored in 1645 by Queen Mary. But that, my Lords, was a new creation; and, therefore, Lord Kellie has

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  no right to be placed so high on the Roll as he is. It was attainted by Act of Parliament and restored, and by a judgment of the Court of Session in 1656, it was formally declared that the ancient Earldom of Mar was still in existence, descendable through the female succession to heirs-general, that the heirs had been temporarily deprived through illegal seizure and usurpation in 1457, but that these wrongs were redressed in 1645 by Queen Mary, whose charter restored to the heirs of the said Countess Isabel and their heirs-general hereditary the ancient Earldom, and which charter included the dignity, patents of honour independently of lands being unknown till many years afterwards. There really was no dispute in Scotland as to the right of the Earl of Mar whose name was in the Decreet of 1606, and who was placed upon the Union Roll. But by the decision of the House of Lords on the 26th February, 1865, they declared that Lord Kellie had made out his claim to the Earldom of Mar, created in 1565. But in doing that the House of Lords carefully abstained from making any reference at all to the more ancient Earldom of Mar held by Elizabeth, Countess of Mar, in her own right in 1404. Therefore, I contend that there is no adjudication whatever against the more ancient title. I hope, my Lords, your Lordships, who have been very generous indeed to the Earl of Mar, will not forget the maxim—Be just before you are generous. I do not ask you to be generous to Mr. Erskine, but simply to be just.
  LORD SELBORNE: As I understand the law, claims to Peerages are to be investigated in a certain prescribed manner, and not argued and debated by the whole House. Therefore, whatever may have been the position of this Peerage in former times, or whatever may be the interest felt on the subject in Scotland, it is impossible that any advantage can arise from a discussion like the present in this House. I should say the same thing if it were a question concerning an English or an Irish Peerage; but the case is still stronger as to a Scotch Peerage; the manner of proceeding in that class of cases being regulated, not only by custom, but by statute. Tour Lordships appointed a Select Committee last year, upon a Petition presented by the noble Earl opposite; and that Committee reported that nothing could be done
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  in this matter, unless some claim to the ancient Earldom of Mar should be made and protested against at an election of Representative Peers, in which case the mode of proceeding, prescribed by the Act of Parliament, must be followed. I altogether fail to perceive the reason for which the noble Earl at the Table (the Earl of Redesdale), instead of being content to rely upon the decision of this House in 1875, has chosen to argue the whole case upon the merits. If I were to hold myself at liberty to follow him into that argument, there are some things which he has said, with which I, certainly, should not agree; but, so far as the title of the noble Earl opposite (the Earl of Mar and Kellie) is concerned, the House has already given its decision, and that decision has the force of law. It has decided that a Peerage of Mar was created by Queen Mary, and that the Peerage so created belongs to the noble Earl opposite; but it has pronounced no judgment, either affirmative or negative, with respect to the ancient Earldom of Mar. Whatever may have been said by any learned Lord in the Committee of Privileges is a matter wholly different from the Resolution of the House affirming the right of the noble Earl to the Peerage of Queen Mary, but without asserting that the old Earldom was extinct. Consequently, anyone who at the election of Representative Peers claimed the old Earldom of Mar would be entitled to produce any evidence he could in support of that claim; and it would be for a new Committee of Privileges to determine whether anything was added by that evidence to the materials, on which the former decision proceeded; and, if not, what degree of weight ought to be attributed, as against the new claim, to all or any of the reasons which were assigned for that decision by any of the Lords who concurred in it. In the present case, as in another to which their attention has been recently called, the House ought not to review and debate a legal determination.

INDIA—THE BRAHMIN KISHEN DUTT.

  QUESTION. OBSERVATIONS.
  LORD STANLEY OF ALDERLEY: My Lords, I would commence by stating that I believe the noble Viscount the Secretary of State for India (Viscount

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  Cranbrook) was ignorant of the act of illegality which I am about to relate to your Lordships, until he saw the Notice which I have put down. There has been an infraction of the liberty of British subjects, for a Brahmin is as much a British subject as any man born in this country; and when Paul of Tarsus claimed the rights of Roman citizenship, neither Festus nor Agrippa sought to diminish those rights by casting in his teeth that he was a Jew. Great complaints are now made by many writers of what they call Imperialism—that is, of arbitrary acts—and Imperialism of this kind is not so much after the model of that of Julius or Augustus Cæsar, as that of Domitian or Caligula, and acts such as this will go far to do away with the effects of the recent speech at Sheffield of the noble Viscount. This has been an act of tyranny so purposeless that it cannot be explained; but I have found a clue in a recondite maxim of antiquity which was placed before your Lordships a few nights ago by a noble Lord opposite—Quid leges sine moribus. Of what avail are the British Constitution, Magna Charta, or Habeas Corpus, against the morality of officials? The Brahmin, Kishen Dutt, had an estate in the district of Gorruk-pore. A nephew of his defrauded him of it; he first attempted to effect a substitution of names in the register, through the native Tehsildar, who repelled his proposals; but he afterwards succeeded in the English Local Court and the High Court of Allahabad. Confident in the justice of his cause, Kishen Dutt determined to seek redress from the Privy Council, and to carry out his design he pledged his wife's jewels. At Bombay, lie went to the office of Nichol and Co., for his passage to England; he had not sufficient money, but a benevolent old man looked at his papers, and said that it was very plucky of him to go to England, and he should go, and he gave him what was wanting of the passage money and 20 rupees besides. The captain of the steamer was a humane man, who knew some Hindustani, and he was very kind to Kishen Dutt, who was only a deck passenger, and sheltered him in bad weather; he directed him to the Strangers' Home, in Limehouse, where he arrived on the 7th February, 1878. When there, all he could say was that he wanted to go to the Privy
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  Council; accordingly, he was put it into an omnibus, and, unfortunately, was directed to the India Office. Thither he went fruitlessly, many days, with his papers; one day a Parsee lawyer offered to take up his case for £50; but he had spent all his money, and had been deprived of his estate. Another day. Sir William Muir spoke to him, and took his papers, and said he would examine them. Some little time after that, in the forenoon of April 4, 1878, he was told by the steward or policeman at the Stranger's Home that the Queen had sent for him, and that- he must make haste. He wanted to put on his best clothes, but the people began collecting his things, and he began to suspect; "the Queen," he said, "does not want to see my old rags." However, he was told he must go; he refused, and clung to the bedstead, and had to be led out by a policeman. He said—"I cannot go without my papers." His papers were then given back to him by the policeman; he was put into a cab, and taken on board the Queen Anne steamer. Here, again, he bewailed his hard fate of being put on board without provisions; for when he left India he had laid in a supply of parched corn and dates, and he would lose his caste. This captain, also, was a humane man, and he allowed him to go ashore again, under the care of one of his men, to get some dried fruit. The steward of the Strangers' Home remained by till the ship sailed to see him off. He was thus kidnapped, and forcibly deported from England to Calcutta. Undismayed, however, he begged his way back, and got first to Aden, and from there to London to the Strangers' Home, on the 3rd September, 1878, and renewed his search after the Privy Council. At length, he found a friend who assisted him to draw up petitions to the Privy Council, and to get them presented. The time in which an appeal could be made had expired whilst he was being deported; when he returned to the threshold of the Privy Council he had been 19 months' travelling, yet the Judges of the Privy Council stretched a point in his favour, and he got leave from Sir James Colville, Sir Barnes Peacock, and Sir Robert Collier, to be heard on Saturday, June 14th; but, as both the First Court and the High Court had been agreed as to a matter of fact, the Privy Council could

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  give him no relief. At this time he was refused any more food at the Strangers' Home, and he would have starved, had not his friend, Mr. Meakin, supplied him with dates and French plums; but after two periods of five and six days—11 days in all—of this diet, and getting no cooked food, he became so ill that Mr. Meakin would have removed him to his own house, but he was too ill to be moved. Thereupon, Mr. Meakin told the officials of the Strangers' Home that he would hold them responsible if the man died, and they relaxed their severity, and gave him food to cook; but he did not recover his strength till the 28th or 29th of June. Now, when this story was first told me, I was incredulous that such a thing could happen in England, and I should not expect your Lordships to give it credence had I not heard it myself corroborated by the officials of the Strangers' Home. I went there with Mr. Meakin on Monday, June 30th, and heard it corroborated that it was by orders from the India Office that Kishen Dutt had been shipped to Calcutta in the Queen Anne; and, worse still, that it was by their orders that Kishen Dutt's rations had been stopped, in order to drive him away. I also learned that orders had been given to shut up Kishen Dutt, and prevent his going about; but this order had not been carried out. Now, under what law or statute does the India Office carry away suitors from, the doors of the Privy Council when they are open to them? By what law does it give these illegal orders to a charitable institution, and prevent its feeding the homeless? The last annual Report of the Strangers' Home bears on its covers the words, "Be not forgetful to entertain strangers;" and the accounts show that £879 16 s. 3d. were given to it by charitable subscribers last year; but the back of the cover of the Report has the words, "No one can be admitted into the Home without payment." Well, the publicans would do as much. I do not mean the licensed victuallers; but, in the original sense of the word, men who are not expected to make any profession of religion. If any stranger has a claim on the charity of this country, surely it is one who, relying on the justice of this country, has come so far, and at the cost of so much hardship, to seek the reversal of an iniquitous decision. I
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  will now read to your Lordships a note from the Strangers' Home, showing that the India Office paid £15 for Kishen Dutt's passage by the Queen Anne, as follows:—
  "June 18, 1879.
  "From Strangers' Home for Asiatics,
  "Limehouse,
  "To E. E. Meakin, Esq.,
  "22, Feuchurch Street.
  "Sir,—I waited to hear the result of Kishen Dutt's appeal to the Privy Council before replying to yours of the 11th instant. Having now heard that the Privy Council have rejected his case, I write to inform you that the India Office paid the £15 for his passage to Calcutta, but nothing for his board and lodging at the Home, and will do nothing further for him. This man has been nearly a whole year on the funds of the Home, which is out of all proportion to our experience in other cases, and the Board cannot spend more of the funds upon him, and especially as he is not one of the class whom we can provide employment for on board ship. Nothing short of a passage paid for him would meet his case, and the Home was not intended to do this; and, besides, we do not know that he would accept a passage, and, indeed, he had one provided for him in vain. We see no termination to this case; and in the present depressed condition of the shipping trade we have many men of the class the Home was specially intended for thrown upon it, destitute for various periods; but all these we can, sooner or later, dispose of properly, by obtaining employment for them at wages to return to the East. The case of Kishen Dutt is one we cannot aid or dispose of in any way, and too much has already been spent upon him, and all in vain. This Home is not intended for the permanently destitute Natives of the East, but to aid those who are temporarily so, and are willing and able to accept employment when it is provided for them. This is what Colonel Hughes, honorary secretary, wished me to say to you by way of information in the case of Kishen Dutt.
  "Yours faithfully,
  "J. FREEMAN, Superintendent."
  And now I have to ask, What was the object of this persecution of an old Brahmin, 70 years of age, by the India Office? Were those officials unaware that, since the Proclamation of the Queen as Empress, every suppliant for justice in India, from the Himalayas to Cape Comorin, has a right to come to the doors of the India Office with his Petition?
  VISCOUNT CRANBROOKsaid, the Strangers' Home to which the noble Lord had referred was, he believed, one of the best institutions in London. A great number of Asiatics came over to this country, some of whom, on their arrival, were unfortunately neglected by

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  those who brought them here, and the authorities at the Strangers' Home did what they could in the circumstances to assist them. It constantly happened that the India Office was asked to assist these poor people to get back to India. The Brahmin, Kishen Dutt, was said to be an old man, 65 years of age. He came over to this country with some purpose connected with an appeal to the Judicial Committee of the Privy Council, and had been received into the Home. He (Viscount Cranbrook) had a letter from Colonel Hughes, dated the 10th of March last, in which he stated that the Brahmin in question had come to the Home, and that on being informed by those whom he consulted that he had no case to lay before the Privy Council, he expressed a wish to return to India, but that he had not the means of paying for his passage. The application was submitted to the Finance Committee of the Council of India, who recommended a grant of £20 out of the Compassionate Fund. That recommendation was approved by the Council, and the money was forwarded to Colonel Hughes for the purpose of taking this man back to India. That was all the India Office knew of the matter. It was not an uncommon thing for Asiatics to come to this country in the belief that grievances of which they complained, and which could alone be determined by the Courts of Law, would be redressed on the presentation of a Petition to Her Majesty in person. It was most important that these persons should be kept from any such delusion as that. Some of them had had to be watched by the police to prevent them from forcing themselves into the presence of Her Majesty.

UNIVERSITY EDUCATION (IRELAND) BILL—(No. 134.)
(The Lord Chancellor.)
UNIVERSITY EDUCATION (IRELAND) BILL—(No. 134.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  Moved, "That the House do now resolve itself into Committee."—(The Lord Chancellor.)
  LORD ORANMORE AND BROWNErose to move, as an Amendment, that the House do resolve itself into Committee that day three months. As their
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  Lordships all knew, on Tuesday, a Bill endowing the Roman Catholics with money derived from the Surplus Fund of the Disestablished Church of Ireland might have been carried by acclamation, so unanimous seemed to be the opinion of the House. That was a marvellous change of opinion since a few short years, when, but for the dexterous guidance of the noble and learned Earl (the Lord Chancellor), a large majority of their Lordships would have thrown out the Bill for the Disestablishment of the Irish Church. He supposed the change arose from the enlightened progress of modern thought. To his narrow vision it seemed like the blind and dangerous progress of a runaway horse. The past history and the present action of the Roman Catholic Church throughout Europe, equally with its present action in Ireland, were ignored or forgotten. Their Lordships cast aside experience and trusted to theory. The Protestant principles, on which the Constitution was founded, and which so long guided this nation in the path of glory and honour, were now mocked at as vulgar; and this was all the more strange when it was remembered that the question of taking education out of the hands of the Roman Catholics was one which occupied the attention of almost every nation in Europe. In Roman Catholic France, Belgium, Italy, Austria; in Germany, Russia, Holland, with their mixed populations; in Canada, in the United States, in Roman Catholic Brazil, the struggle to keep education out of, or take it from, the hands of the Roman Catholic Church was being fought; and why? Not for any purpose of religious persecution; not with any desire to interfere with the religious faith of that Church; but because the Roman Catholic Church taught that her authority was supreme, independent of and above the State. But all history showed that unless the supremacy of the State was asserted, liberty, order, and good government must become subservient to religious tyranny; for an Infallible Church must consistently teach and practice intolerance, she must and did teach every one to be an obedient Catholic first, and, subject to this condition, a good citizen after. To keep the youth of the country from thus being brought up in antagonism to the civil power, in antagonism to their fellow-countrymen, that question was now the

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  standard round which all Liberals, save a few English aristocrats in Europe and America, rallied. Therefore, he could not but think it one which well-deserved the attention of their Lordships. The action of the Roman Catholic clergy in Ireland at the present time was matter of notoriety. They claimed and exercised an influence in the appointment to every law office in the country, from the Lord Chancellor to the lowest turnkey. They dictated to the constituency what Members they were to return to Parliament—the Galway election showed how they enforced their commands. In Canada, at the last election, the Roman Catholic Bishop issued public directions to his clergy not to give the sacraments of the Church to recalcitrant voters. In Ireland this was not done by such public manifestoes; but altar denunciations against all who displeased the clergy were the constant practice, and were frequently a source of danger to the persons denounced. They claimed that where the majority were Roman Catholics, without regard to merit, all public officers should be Roman Catholics. Why was it, he would ask, that this general feeling through Europe existed against placing education in the hands of the Roman Catholic clergy? It was not attributable to any wish to persecute Roman Catholics or to interfere with their faith, but because they taught that the Roman Catholic Church was supreme above the law. While such a doctrine was preached—a doctrine so dangerous to civil order—the influence of the law must be maintained by not leaving education in their hands. With reference to the eloquent appeal which had been made the other night by a noble and learned Lord (Lord O'Hagan) as to conceding to the conscientious views of Roman Catholics in Ireland the means of separate education, he (Lord Oran-more and Browne) contended that this was beside the question—it was a mere stepping-stone to power—the claim was only a new development of the claims of the Roman Catholic clergy, for they felt that if the youth of Ireland were educated out of a particular groove they would lose their power over them. Their Lordships were not to think that any measure was really necessary to satisfy the consciences of Roman Catholics. If they accepted that principle, where were they to stop? The present Pope refused to have any
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  relations with the Italian Government because they tolerated other religion! They had gone very far and very fast since the Church Bill had passed through the House. Let the House look back a little. At the time of the Emancipation, Dr. Doyle and Daniel O'Connell gave evidence strongly in favour of mixed education. Within a few years, and for a considerable time, Archbishop Murray aided in carrying out mixed education as an active member of the National Board. Their consciences were not disturbed, nor were they worse Catholics than the hierarchy or laity of the present day. Was not this claim, then, no part of religious teaching, but an Ultramontane development for the distinct purpose of gaining greater power? It was making religion a stepping-stone to power. Was not the passing of any measure aiding separate education a wrong not only to the Queen's Colleges and Trinity College, but to Liberal Roman Catholics, who preferred education at these Colleges, or to choose the places and persons by whom their sons should be educated? This Bill would, by the power it would give the Roman Catholic clergy, bring all liberal Roman Catholics in subjection to their iron sway. Then as to National Education having become denominational, he entirely denied that that statement was borne out by the annual Returns. Those Returns showed that where the population was mixed there the schools were mixed. It was certain that grants had been made to schools which were conventual if not monastic; and he did not think that any sensible Protestant would like to send his children to such establishments, whatever might be the conscience clause put on the chimney piece. Doubtless, in so far, grants had been made to Roman Catholic teaching which were refused to Protestant schools. He would also ask their Lordships to remember that large grants which had been made before the National system existed to Protestant schools had since been withdrawn, and that Maynooth had been for many years supported out of the funds of the Protestant Church. It was urged in support of the Bill that the Roman Catholics laboured under a grievance; but the grievance referred to was one of their own making. All the advantages which

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  were open to other denominations in the country were open to them. At Trinity College, and all the English Universities, all tests had been removed, and for the very purpose of putting the Roman Catholics upon an equality with the others. The Queen's Colleges were open to, and accepted by, every other denomination, and every other denomination had a minister paid for religious instruction; so, also, could the Roman Catholic University appoint a chaplain. He believed, indeed, that a very large proportion of those who did require University Education had accepted the teaching of both Trinity College and the Queen's Colleges. Therefore, he contended that there was no requirement for this additional University. Where Roman Catholics had not already accepted the teaching of Trinity College and the English Universities, now that the endowments were open to them, he felt sure they would do so. If that House passed a Bill granting separate teaching through a hierarchy the result would be to put a penalty on all liberal-minded Roman Catholics. They would be doing an injury not to those Colleges only, but to every man who was inclined to take advantage of the facilities they offered. In fact, they would be putting the Roman Catholics altogether under the sway of the ultra-Romish party. The noble Marquess (the Marquess of Salisbury) had said that the reason Trinity College was not available for the Roman Catholics was that the examinations were in the hands of those in whom the Roman Catholics had no confidence. The noble and learned Earl (Earl Cairns) had said the same. It was, therefore, evidently intended by the Charter, by the constitution of the Senate, to transfer the examinations to parties in whom they did have confidence, the University would be made entirely Roman Catholic, and would not be in accordance with the principle which had been adopted for a great many years. He doubted also whether the public, or, indeed, some of their Lordships, understood the Bill. He brought forward his Motion because he thought there was no need for giving further University Education in Ireland, and because the Bill would injure the existing Universities and assist Roman Catholic Universities in oppressing the liberal Roman Catholics.
  Amendment moved, to leave out ("now") and add at the end of the Motion ("this day three months").—(The Lord Oranmore and Browne.)
  EARL GRANVILLE: I cannot support the Motion of the noble Lord. I stated, on the second reading, my reasons. I agree with all the non-official Peers who have debated this subject that the Bill is perfectly inadequate. But as the Government adopted the novel plan of announcing in the House of Commons that they would make a clear and distinct explanation of their views on the Irish University question by means of a Bill introduced into the House of Lords, I think it is desirable that the House of Commons, where the majority of the Irish people interested in this question is so much more largely represented than here, should have an opportunity of fully considering the plan. But as to this plan I desire to make an appeal to Her Majesty's Government. The noble Marquess opposite (the Marquess of Salisbury) is reported to have made a speech the night before last, in which great heat and eloquence, courage and much imagination, a supreme contempt for his political opponents, and unlimited admiration for the best of all possible Governments in the best of all possible cities, seemed to combine all the elements necessary for a successful electioneering after-dinner speech. The noble Marquess is reported to have described the Government policy with regard to legislation as one which, as far as efficiency would allow, made the smallest possible change. I am bound to say that, omitting the proviso, this Bill is an admirable type of such legislation. But as for efficiency, can anyone pretend that it is so after the debate on the second reading, when not only Liberal Peers and Roman Catholic Peers, but the Protestant Irish supporters of the Government, unanimously gave their opinion that the Bill was inadequate—when the Secretary of State for Foreign Affairs stated that the Irish Roman Catholics considered it a grievance that they alone were without pecuniary assistance in higher education—and when the noble and learned Earl on the Woolsack at last held out vague hopes that next Session, or the Session after the next, the Government would consider the question of supplementing the present Bill by

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  grants which he did not define? With regard to the claim of some pecuniary assistance, there is no doubt that the lay Irish Catholics are united with their clergy. But there is one reason for their claim which is probably not so much felt by the clergy as by the laity. Some of the latter complain that without pecuniary assistance they are condemned to a Collegiate Education exclusively conducted by priests; that learned lay Irish Professors, just as much as their unlearned fellow-countrymen, desire to marry, and generally, like them, have enormous families; that they must be paid for their services, and that cheap University instruction can only be obtained from the clergy, who, from their vows of celibacy and from the character of their profession, are satisfied with very small allowances. With regard to this question of pecuniary assistance, it has been stated in the House of Commons and in this House—hitherto without any contradiction—that the Irish Government did communicate last winter to the. Irish Bishops for their approval a scheme resembling in its general outline the Bill introduced some weeks ago by the O'Conor Don. The Government have been much pressed here to explain in what way the principles of the Intermediate School Act of last year, proposed by them and cheerfully assented to by us, are not applicable to Collegiate Education in Ireland. The Lord Chancellor gave us the reasons—and when he gives reasons they are likely to be the best that can be found—no one is very likely to find better. His reasons were these—first, that the children in the schools are younger than the students in Colleges; secondly, that there is no Conscience Clause applicable to Colleges; thirdly, that the Colleges cannot, like the primary schools, be inspected. As to the first reason—namely, as to the age of the children—this may or may not be a question of convenience; but, as a question of principle, it has no bearing whatever on the matter. I believe there are several Irish schools of a denominational character which have received, or, at all events, will receive, grants under the Government Act of last year out of the surplus provided by the Irish Church Act. Then, as to the Conscience Clause, the late Lord Chancellor of Ireland, speaking with great authority, said there would be no objection raised
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  to it; and my noble Friend (the Marquess of Ripon) reminded the Government of what they must know, that the Irish Bishops had agreed to a Memorandum to that effect. It is not likely that the Catholic laity would object to having a Conscience Clause when the Bishops are ready to agree to it. Then about inspection. The noble Marquess (the Marquess of Ripon) asked the pertinent question, whether Her Majesty's Government had not omitted to take any power of inspection over the intermediate schools? To this there is only one possible answer—in the negative. I am entitled to ask Her Majesty's Government whether they can give any more satisfactory explanation of the distinction between the principles they so successfully adopted last summer, and those which more or less they seem to repudiate this year? The noble and learned Earl on the Woolsack most properly stated on the second reading his determination only to argue his case in the manner most likely to promote the settlement of the question. I trust that I am doing nothing inconsistent with the most sincere desire that this important question should be settled if I make an appeal to the Government on this occasion. It is perfectly clear that this Bill will not settle the question. It is not reasonable to expect that it will be accepted, after the Government have themselves owned that it requires to be supplemented, and yet only hold out hopes of the necessary supplement being considered by the Government at some future and undefined period. Her Majesty's Government promised the House of Commons to give in this place a clear and distinct statement of their pledge. I venture to appeal to them to fulfil that pledge, and spontaneously to add to this short Bill those provisions which they think necessary for its complement, or, at all events, to make a statement which will enable us, and especially the people of Ireland, to judge whether such provisions are sufficient or not.
  On Question that (" now ") stand part of the Motion? Resolved in the Affirmative.
  House in Committee accordingly; Amendments made: The Report thereof to be received on Monday next.

OFFICERS ON HALF PAY—THE CIRCULAR LETTER, MAY, 1866.

  QUESTION. OBSERVATIONS.
  LORD TRUROasked the Under Secretary of State for War, Whether the Circular Letter of May, 1866, did not guarantee to officers promoted on half-pay the same advantages in all respects as officers placed upon half-pay by reduction, and whether such guarantee has been adhered to in every case, particularly with reference to payment of over-regulation money? The noble Lord said, the Question might appear a very simple one to answer; but the matter it related to seriously affected certain officers of the Army. The effect of the Circular Letter to which his question referred was to place officers who were on half-pay by promotion upon precisely the same footing as officers who were upon half-pay by reduction. It was because in some instances the assurance contained in the Circular Letter had not been completely carried out that he put the Question which stood in his name upon the Paper. In anticipation of what the answer of the noble Lord the Under Secretary of State for War might be, he wished to state that there were cases of officers who had not received, prior to the abolition of Purchase, their over-regulation money from their regiments. The solemn, pledges given in the House of Commons by Mr. Gladstone, Lord Cardwell, and Captain Vivian, of the same nature as the guarantee which, in his opinion, the Circular Letter of 1866 contained, should, he thought, be redeemed.
  VISCOUNT BURYsaid, Her Majesty's Government fully intended to do every justice to the officers in this matter. The Circular Letter of May, 1866, did guarantee to officers promoted on half-pay the same advantages as officers placed upon half-pay by reduction, and everything promised in that Letter would be granted. It, however, did not contain, and could not have contained, any reference to over-regulation money, which was abolished in 1871, and which, in 1876, was illegal and not recognized by the authorities.
  House adjourned at a quarter past Eight o'clock, to Monday next, Eleven o'clock.