HL Deb 11 July 1879 vol 248 cc133-46

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- 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 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- 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 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 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 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 I should respectfully offer, and I do not desire to take any further part in the discussion.


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.


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 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, 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 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 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.


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 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 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.


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 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.