THE EARL OF GALLOWAY
rose to move—That, in accordance with the Resolution agreed to by this House on the 14th June last, 'That it is incumbent upon this House to rescind their Order of 26th February 1875, which ran as follows, viz: That at the future meetings of the Peers of Scotland assembled under any Royal Proclamation for the election of a Peer or Peers to represent the Peerage of Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session officiating thereat in his name, do call the title of Earl of Mar according to its place on the Roll of Peers of Scotland called at such election, and do receive and count the vote of the Earl of Mar claiming to vote in right of the said earldom, and do permit him to take part in the proceedings of such election,"' this House resolve that the said Order be rescinded, and that intimation to that effect be made to the Lord Clerk Register of Scotland.The noble Earl said, he was in a position in which he was, perhaps, entitled to claim their Lordships' sympathy, and he should ask their indulgence while he attempted to put before them the position in which the House was placed on the subject of his Resolution. Just a month ago, on the 1st of June, he gave Notice in that House that he intended to move two Resolutions with regard to the Mar Peerage. He did not wish to disguise the fact that he was very anxious to call the attention of the public to this question; and for the purpose of calling public attention to it he not only put a Notice upon the Paper, but in addition—having made the public declaration between 5 and a quarter past 5 o'clock in the usual manner—took measures to insure the Notice getting into the hands of the reporters. That Notice he had given for the 14th of the month, so that there would be 1216 ample opportunity for everybody to know that the question was coming on; and two days previous to bringing on the Resolution he took means to let every Member of their Lordships' House know that the subject was to be discussed—a means with which all their Lordships were familiar. Of course, he had no notion whatever as to the opinions of any noble Lord on the subject. He would not weary the House by reciting what the Resolutions were; but the particular one which was the subject of his Notice this evening was to the effect that in accordance with the Report of the Select Committee specially appointed to inquire into the matter three years ago—namely, in 1877—it was incumbent on the House to rescind the Order of February 26, 1875, and that an Order to that effect should be sent to the Lord Clerk Register of Scotland. At this time he had put to the Resolution six words, which he afterwards withdrew, and these were, "and the said Order is hereby rescinded." But, upon reading over his Notice, he had said to himself—"Now, it would be rather an affront to their Lordships to add these words; for if their Lordships agreed with me that it is incumbent on them to rescind the Order, they will, as a matter of course, carry that Resolution into effect;" and he need not add that it would have been perfectly easy for him, after the Resolution was carried, to have moved simply that the words he had left out be added. If he had done that he was sure the Motion for the addition would have been carried without a dissentient vote. However, a week passed, and a noble Friend of his opposite (the Marquess of Huntly), who had always taken a very deep interest in the question, in his place asked the noble and learned Lord on the Woolsack what Order he had sent to the Lord Clerk Register in consequence of the Resolution agreed to by the House? He would remind their Lordships that on the 14th ultimo the debate lasted for over two hours. It was a very full debate; and upon going to a division the numbers were—Contents, 49; Not-Contents, 41—which was a majority of 8; but had it not been for the accident of one Peer going into the wrong Lobby the voting would have been 50 to 40, or a very substantial majority, and one which on most questions would be considered very decisive. A week after 1217 this vote was taken a noble Friend of his opposite asked the noble and learned Lord on the Woolsack what Order he had sent to the Lord Clerk Register, or—
THE LORD CHANCELLOR
said, the question was not what Order he had sent to the Lord Clerk Register, for he had no more authority to send an Order from the House than had the noble Earl himself.
THE EARL OF GALLOWAY
begged the noble and learned Lord's pardon, but wished to be allowed to finish the sentence. If he might be allowed to quote the noble and learned Lord's reply, it would be found that there was no reason to interrupt him. The noble and learned Lord had replied that the House had given him no authority to rescind any Order; and that the Resolution had only stated that it was incumbent on their Lordships to do a certain thing which they had given him no authority to do. The noble and learned Lord had added some pithy remarks which were not pertinent to his (the Earl of Galloway's) point at the present moment. Upon this he had immediately risen in his place and given Notice that, in consequence of that reply, he should bring forward the present Resolution on the first available day. He had been very much astonished to hear that anything further was necessary, as he believed that the matter was decided once and for all, and that there was nothing further for him to do in the matter. He had found that Thursday, 1st July, was the first available day for bringing the matter on; and, having chosen that day, it had still seemed to him that he had only to move his Resolution as a matter of form, as the House had already decided the matter, and that the Question would be put from the Woolsack almost like the third reading of a Bill, or rather after the third reading, as the Question "That this Bill do pass," which was never challenged. He had thought that there would be as much reason to expect that the rejection of a Bill would be moved on the Motion "That this Bill do pass," as that at this stage his Resolution would be opposed. He had, therefore, been very much astonished the morning after he had given his Notice to find in the Papers the Amendment of the noble Earl the Chairman of Committees. He had taken some 1218 pains to find out whether the course adopted by the noble Earl was at all customary; and from all he could learn it seemed that it was altogether without precedent. He had consulted many noble Lords, but there was not one who could point out a precedent; therefore, he would leave it to their Lordships to say whether the noble Earl was acting in accordance with the regulations and usages of the House. Was it open to the noble Earl to discuss his Amendment at all? If it was, it seemed to him that they were laying down a most dangerous precedent; and he did not believe that if their Lordships balloted on the question of Order the noble Earl would have 10 supporters. For his own part, he (the Earl of Galloway) was not prepared to transgress the Rules of the House. He had made his speech on a former occasion and had carried his Resolution; and he should certainly not break the Rules of the House by reopening the question. Of course, if they permitted the Amendment to be put, it would be open to him to reply. If any other noble Lord had put down an Amendment to a Resolution, the object of which was simply to render operative a Resolution of the House, he would have been severely castigated, and castigated by none more severely than by the noble Earl the Chairman of Committees (the Earl of Redesdale). He would conclude for the present by moving his Resolution.
Moved to resolve,
That, in accordance with the Resolution agreed to by this House on the 14th June last 'That it is incumbent upon this House to rescind their Order of 26th February 1875, which ran as follows, viz.: "That at the future meetings of the Peers of Scotland assembled under any-Royal Proclamation for the election of a Peer or Peers to represent the Peerage of Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session officiating thereat in his name, do call the title of Earl of Mar according to its place on the Roll of Peers of Scotland called at such election, and do receive and count the vote of the Earl of Mar claiming to vote in right of the said earldom, and do permit him to take part in the proceedings of such election,"' the said Order be rescinded, and that intimation to that effect be made to the Lord Clerk Register of Scotland."—(The Earl of Galloway)
§ THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)
rose to move, as an Amendment, to leave out all the words after "That," for the purpose of inserting the following words:— 1219Further consideration has led this House to consider that it would be inexpedient to rescind the Order of the 26th February 1875, which was made after the House had resolved and adjudged that Walter Henry Earl of Kellie Viscount Fenton Baron Erskine and Baron Dirleton in the Peerage of Scotland had made out his claim to the earldom of Mar in the Peerage of Scotland created in 1565, as consequential to such resolution and judgment, and that to rescind an Order so made in relation to a right to a Peerage adjudged after long investigation, and which Order has been acted upon at several elections of Scotch Peers, without any further inquiry and unsupported by any new evidence, would be contrary to the practice of this House and establish an objectionable and dangerous precedent.The noble Earl said, that, after what had fallen from the noble Earl, it was necessary that he should explain why he had given Notice of his Amendment. He believed the question to be one of the deepest importance to the character of that House. They must remember that that House was the highest Court of Judicature in the Kingdom, and they must take the greatest care that nothing was done in regard to judicial questions which affected the character of the House or its power to give judgment on these matters. From the manner in which this question was handled, he thought many noble Lords had been influenced by wrong impressions. For instance, it had been very much the fashion to treat the Committee of Privileges as if it was not the House; whereas, in fact, it was a Committee of the Whole House. The House had always treated questions of Peerage in that way; and so remarkably careful had it always been to guard against miscarriage, that instead of requiring a quorum of only three, as at the ordinary Sittings of the House, it insisted, when in Committee upon Privilege, upon a quorum of seven. These questions of disputed Peerages were referred by the Sovereign to the House of Lords, as the highest Court of Judicature in the Kingdom, in order to obtain the opinion of that high Court; and when the question was decided by the House, notice was sent to the Queen of the decision come to, and that decision was final, and always acted on. He must ask their Lordships to consider what would be the effect if any Peer was, whenever he pleased, to get up and move that a judicial decision of the House be rescinded. The noble Earl now proposed the rescinding of a judicial Order; and the facts stated showed that it was necessary for 1220 the House to make such Order, as otherwise there would be nothing but confusion in the Scotch Peers' elections. Objection was taken that the name of the Earl of Mar on the Roll of Peers was not placed according to the date at which the House had determined the Peerage was granted. There were two ways in which the question as to the date must be considered by those who took this matter up. Nobody could doubt that the date on the Poll was not the proper place of the Peerage awarded by the House to Lord Kellie; but it was also not the date of the Peerage claimed by Mr. Goodeve Erskine. From what took place before the Commission of Ranking, it was quite evident that the Lord Mar of that day was very anxious to get the old Earldom conferred on him; and, with that object in view, he adduced before that Commission three important documents. One was the Charter of Isabel of 1404; the second was the Act of Parliament of 1585, ratifying the whole right and title made to John, Earl of Mar, of the comitators as heir by progress to Dame Isabel; and the other was an extract of the retours of 20th March, 1588, whereby John, Earl of Mar, was declared her lawful heir. Therefore, the Commission had before them all the particulars of his descent, and all the evidence he could produce of his claim as heir to Isabella; but they refused to give him the date of 1404. On the contrary, the date which they assigned to the Earldom of Mar was 1457, thereby altogether refusing to admit that the Charter of Isabel of 1404 had anything to do with the Earldom then before them. There was no evidence whatever, from anything that had taken place in the Parliament of Scotland, or, since the Union, in the House of Lords, of any person being recognized as possessed of the ancient Earldom, since the death of the last heir male in 1377, which had, therefore, been now extinct for 500 years. During the interval, the Crown created several Earls of Mar; and down to the time when Queen Mary made Lord Erskine Earl of Mar on the eve of her marriage, no member of the family of Erskine was Earl of Mar. These and various other circumstances connected with the case being brought before the Committee of Privileges, the Committee came to the decision that Lord Kellie had made out his claim to the Earldom of 1221 Mar created by Queen Mary. Those persons who took up the case of the other claimant did not quite accurately state the facts. They seemed to conceive that because he got returned as heir, to his uncle he was entitled to his Peerage; whereas it did not really show he was heir to the Peerage unless he could prove that the Peerage went to heirs general. The Order which the House was now asked to rescind had been in existence for five years, and had been acted on in several Scotch elections. After so long an interval, on account of some personal feeling, noble Lords came before the House, and urged their Lordships to say that it was desirable to rescind that Order. ["No, no!"] Well, he asked, why was not the subject brought forward before? For five years the decision of the House had been unchallenged; and now that it was challenged, what was the object of it? He believed it was to prevent Lord Mar having any place to answer from when the Union Boll was called. If the Motion were carried, and the Earl of Mar and Kellie answered to the Peerage on the Poll, his vote would be objected to. Well, was the Earldom of Mar, then, to have no place on the Union Poll? A Circular had been sent round to their Lordships, calling on them to maintain the "integrity of the Scotch Peerage," and stating that it was being placed in danger. Who, he asked, was endangering the integrity of the Scotch Peerage? and how was it being endangered? In his opinion, it was an entire misconception to use such terms as those. He desired particularly to impress on their Lordships not to do anything which would in any way affect the judicial character of that House. There was no point on which they required to be more careful than on that. In this country the House of Lords was the Supreme Court of Appeal; and their Lordships should be careful not to allow the impression to go abroad that in a matter of a judicial character the House would be guided without consulting those capable of giving advice. The noble Earl (the Earl of Galloway) seemed to think that any noble Lord was capable of giving advice on a judicial question. To carry his Motion would be, in effect, to establish a dangerous precedent. The noble Earl asked the House, without hearing further evidence, and without 1222 conference with anyone capable of giving a judicial opinion, to rescind a judicial Order of the House. This was contrary to the established practice of the House, and would, if it were agreed to, establish a precedent as dangerous as it was new.
To leave out all the words after "That" for the purpose of inserting the following words: "further consideration has led this House to consider that it would be inexpedient to rescind the Order of the 26th February 1875, which was made after the House had resolved and adjudged that Walter Henry Earl of Kellie Viscount Fenton Baron Erskine and Baron Dirleton in the Peerage of Scotland had made out his claim to the earldom of Mar in the Peerage of Scotland created in 1565, as consequential to such resolution and judgment, and that to rescind an Order so made in relation to a right to a Peerage adjudged after long investigation, and which Order has been acted upon at several elections of Scotch Peers, without any further inquiry and unsupported by any new evidence, would be contrary to the practice of this House and establish an objectionable and dangerous precedent."—(The Earl of Redesdale.)
THE EARL OF CAMPERDOWN
observed, that when noble Lords commenced addressing the House on the Mar Peerage they invariably commenced by referring to one Earl and then drifting on to speak of all the personages mixed up in the vexed question of the Mar Peerage. He ventured to think that the House was not quite in Order. The noble Earl opposite (the Earl of Galloway) did not, when he entered into the question and introduced his Motion, deal with the merits of the case; but had rather confined himself to the question whether the noble Earl the Chairman of Committees (the Earl of Redesdale) was in Order in putting his Amendment on the Paper. When the noble Earl moved his Amendment he went into the merits of the question, and entirely avoided going into the question of Order. The noble Earl (the Earl of Galloway) intended to raise a mere formal point of procedure. If the result of the debate on the 14th of June had been the opposite of what it had been, he (the Earl of Camperdown) had no hesitation in saying that the noble Earl (the Earl of Galloway) would have received a severe and well-deserved castigation from the noble Earl at the Table, if he had re-opened the whole question on a formal and technical point or a point of Order. He did not 1223 even know if he could discuss the merits of the Amendment at the present stage of the debate. The first question for the House to decide was whether the noble Earl the Chairman of Committees was in Order in bringing forward his Motion?
§ LORD BLACKBURN
said, he believed the Motion which the noble Earl (the Earl of Galloway) had placed on the Paper would do harm rather than good to the integrity of the Scottish Peerage. The question, "Who was entitled to the ancient Earldom of Mar?" was one which could not be decided except by a tribunal competent to take evidence, and decide upon the evidence before it. The question was not who should be the heir, but who should be Earl of Mar. Lord. Kellie petitioned the Crown that he should be Earl of Mar. His Petition was referred to that House; and everyone must have known that the question referred to them was one which could not be determined without evidence. The House, in the ordinary course, referred the Petition to a Committee of Privileges, which was the ordinary and Constitutional mode of dealing with such a Petition. During the seven years that the question was before the Committee, an enormous mass of documentary evidence had been collected. He would not now say what the effect of that evidence would be; but it was at least so considerable in bulk that probably no noble Lord had read it through. Judgment had been given by the legal Peers, and the then Lord Chanceller (Earl Cairns) expressed an opinion upon the point raised with great clearness. He (Lord Blackburn) could not now absolutely affirm that the noble Earl (the Earl of Galloway) was wrong; but he could not say he was right. All he could at present venture to say was, that no man who had not read the evidence before the Committee of Privileges was competent to pass an opinion on the subject. The method now adopted was not the one by which the point could be satisfactorily decided. In a Court of Justice the practice always was to examine a man's title. Mr. Goodeve Erskine said he was the Earl of Mar. It was open to him to petition the Crown; the Petition would be sent down to the House, and the House would refer it to a Committee of Privileges. Against that the previous decision would be no 1224 bar. Let him not be misunderstood. When he said it would be no bar, he did not mean to say it would not be an important element. The Petitioner had to make out his case in every instance. In this he would not only have to persuade the Committee that he was right, but to make them say that the former decision was wrong. If this question had to be re-tried, let that be done in a proper manner. Let not their Lordships make a rush without evidence, and merely on the authority of antiquaries and persons who knew no law. Those who wanted the House to rescind the Order of the 26th of February, 1875, said they did not want to interfere with the judgment of the House. That was very much as if, in relation to the judgment of a Court of Law, persons said they did not want to interfere with it; but only wanted to prevent its execution, and to see that the Sheriff did not carry it into effect.
THE MARQUESS OF HUNTLY
wished that the noble and learned Lord (Lord Blackburn) had remained a little longer in his place the other evening, and had made himself more acquainted with the facts of the case. What they wanted to do was to put this Peerage upon the Poll. That had not yet been done; consequently, the Order of the House had not been carried out. He reminded the noble Earl at the Table (the Earl of Redesdale) that he quite misunderstood the reason why the question was allowed to slumber for five years after the Report of the Select Committee. The course which the affair took was as follows:—The Earl of Kellie came before the Committee of Privileges, and asked to be placed on the Union Roll as Earl of Mar, created in 1565; but the ancient Earl of Mar did not come as a claimant before this House at all. He merely protested against his Peerage being so put on the Poll. The Committee of Privileges went into the question, but they did not decide anything about the old Peerage; all they did was to allow the noble Earl (the Earl of Kellie) to have a Peerage of Mar of 1565. The House did not decide anything, either negatively or affirmatively, with regard to the ancient Earldom of Mar. At the last election at Holyrood, the Earl of Mar came forward to vote, and some noble Lords protested, and a "scene" followed. The noble Earl 1225 opposite (the Earl of Galloway) then came down, and moved that the Earldom as it stood should be brought down to the Roll of 1565. The Report of the Select Committee distinctly said that no Order was made with reference to the old Earldom, and distinctly affirmed that the old Earldom was still on the Roll. Let the noble Lord (the Earl of Mar and Kellie) put his Earldom on the Roll, and leave the old Earldom to take care of itself. He objected to the assertion that the Scotch Peers treated this question on personal grounds. The point to be decided was one involving more than personal interests for Scotch Peers—namely, what was the right place on the Union Roll for the Mar Peerage? The matter could not be left in its present position. He hoped their Lordships would not stultify themselves by insisting on the Resolution which had been carried the other day.
THE DUKE OF ARGYLL
said, he was unable to understand what was the difficulty raised with regard to the point of Order. A few weeks ago the House came to the conclusion that it was incumbent on it to rescind a certain Order; but in order to carry that opinion into effect—as it was not binding—it was necessary that there should be a separate and new Motion to rescind. When the Motion was placed on the Paper, the noble Earl (the Earl of Redesdale) gave Notice of an Amendment. He did not see that the noble Earl could be accused of being out of Order in moving an Amendment to a new Motion brought before the House, consequent on the Resolution of the 14th of June. He did not intend to enter at any length into the merits of the question. Like most other Members of the Scotch Peerage, he thought the question one of great importance, apart from all personal considerations. He did not think that those who took the part of Mr. Goodeve Erskine acted from mere personal motives, for he believed that they desired to see the Scotch Peerage Roll made up properly for the honour of the Scotch Peerage. He could, to a certain extent, sympathize with those noble Lords. When the noble Earl the Chairman of Committees (the Earl of Redesdale) spoke of "personal motives," he did not speak of personal motives in an unworthy sense; but he was bound to say, not having read the evidence before the 1226 Committee, that he was unable to give in opinion on a legal question which ought to be decided by a legal tribunal. He did not think it would redound to the honour of the Scotch Peerage to snatch a victory by a chance vote. On the contrary, he thought they should abstain from any hasty expression on so important a subject. For himself, he would be glad if Mr. Goodeve Erskine could secure his Scotch Peerage: but the proper course must be taken to that end. One of the subordinate questions raised was where his name should stand on the Roll at Holyrood. The noble Duke opposite (the Duke of Richmond and Gordon) would know that that was a1 question which must be gone into with the fullest evidence and material for coming to a conclusion. For one, he (the Duke of Argyll) knew that his name occupied a position on the Roll which he ought not to do, and the same was the case with the noble Duke (the Duke of Sutherland). Noble Lords knew that those were not solitary instances, and if they were to go into that question it must be done in judicial form. If Mr. Goodeve Erskine wanted to keep his place he must issue a new Commission. This question should not be made a political or personal one; and he believed that on the 14th of June the House was hurried into giving a vote without having before it adequate information on the subject. He felt strongly the plea raised by the noble Earl (the Earl of Redesdale), to be zealous of the honour of the House when dealing with questions of a judicial character.
§ THE EARL OF MANSFIELD
said, that the real reason why this question had been brought forward was that justice had not been done. He had looked into the decision of the Committee of Privileges, and he contended that it was contrary to justice in every way; and he could show from documents, legal and historical, that there was no proof that the date 1565 was correct for the Earl of Kellie's title of the Earl of Mar. He wished to ask how the Order of the Committee in the House was originally given out? He had heard that no Resolution of the House was come to, and that there was nothing recorded upon the Journals of the House. Although the House had not come to any decision with regard to the ancient Earldom of Mar, Mr. Goodeve Erskine, 1227 as the noble Duke who had just sat down called him, but, as he preferred to call him, the Earl of Mar, was placed in the position that he could not present himself at the election of Scotch Peers and insist on having his claim to vote admitted. If noble Lords would only look into the question and consider it, they would see the injustice of what had been done. He knew of no individual, however, who had not, after examination, adopted his view of the matter. In Edinburgh all the lawyers in Parliament House were of one opinion; and when it was said that the House was acting against the legal authorities, he would remind the House that the decision of the Committee was come to against the opinions of the Attorney General for England and the Solicitor General for Scotland. They wished to see the Earl of Mar placed in a position in which he could claim to vote for the Earldom of Mar; and at present he could not do that. In conclusion, he expressed his intention of supporting his noble Friend on his right.
THE MARQUESS OF LOTHIAN
said, that the passing of the Resolution of the noble Earl (the Earl of Galloway) would only add to the unseemly wrangles and scenes that had taken place, and would only increase the difficulties of the Lord Clerk Register. He pointed out that the proper course for Mr. Goodeve Erskine to pursue was to tender his vote before the Lord Clerk Register and raise his claim to the Earldom of Mar; then the proper number of Peers should protest against its being accepted; and then the question would be brought before the House of Lords for consideration. What would be the practical result if the Resolution of the noble Earl (the Earl of Galloway) should be carried? Why, there would be more confusion than at present; and, so far as the Roll of 1705 and the Union Roll were concerned, they had no legal force at all. They were not authoritative documents to show the precedence of Scotch Peers. As a Resolution, if carried, would not put an end to the difficulties, it could have no good purpose whatever. It could not prevent the Earl of Kellie answering as Earl of Mar when the title was called over; therefore, he would again suggest that Mr. Goodeve Erskine should present himself at Holyrood; that a protest should be made to the recep- 1228 tion of his vote; and that the rights and the wrongs of his case should be brought for decision before the House of Lords, and he would be glad if he could prove his claim to the title.
THE LORD CHANCELLOR
said, he might claim to speak impartially on this subject. In the first place, he was not a Scotch Peer, neither was he one of the Lords who took part in the hearing or the judgment of Lord Kellie's case. He was, in fact, disabled from doing so by the circumstance of his having been counsel for Mr. Goodeve Erskine as an opponent to Lord Kellie's claim. He had felt much interest in Mr. Erskine's claim, and wished very heartily for his success; and as far as his opinion when counsel went—which was not for a moment to be put in competition with that of the judicial tribunal—he had not formed an unfavourable opinion of Mr. Erskine's claim. He contended, therefore, that he was now able to offer impartial advice; and occupying the position he did, he felt it his duty to offer that advice, for it appeared to him that their Lordships had inadvertently become entangled in a dangerous position, which, if they did not extricate themselves from it, might be, in a high degree, detrimental to the character of their Lordships in one of their functions as to which it was essential they should be beyond censure or suspicion—he meant their judicial capacity. He could not agree with the noble Earl (the Earl of Galloway) that the Motion he had now made could have been regarded as a matter of form, even if no opposition had been offered; because he himself ventured, on a former occasion, to which reference had been made, to point out that it would be impossible for the House simply to rescind the Resolution of the 26th February, 1875, without substituting something else for it. He had hoped that that intimation of his opinion would not be lost on the noble Earl if he came forward to make a Motion; but it was clear to him that the noble Earl was embarrassed by his own success, and that he did not know what other Order to substitute for that which he proposed to rescind. The noble Earl talked of the Amendment as being unprecedented; but anything more unprecedented or dangerous than, on a Motion like this, after a general debate to rescind a judicial Order, without venturing to 1229 say what other more proper Order should be substituted for it, could not be imagined. If the noble Earl had ventured to propose some other Order, there would have been only a choice of two courses open to him. If he had proposed to change the place of the title of Mar which now stands upon the Union Roll, by moving it to a lower position on that Roll, he would have prejudiced any future claim by Mr. Goodeve Erskine, who might hereafter come forward to show that there were two Earldoms of Mar, and that the Earldom now on the Roll was in a position, not lower, at all events, than that in which the more ancient Earldom, claimed by him, ought to be. This was the very thing which the Earl of Mar and Kellie, by his Petition in 1877, had asked the House to do, and which the Committee, then appointed to consider that Petition, for that very reason advised the House not to do. If, on the contrary, he had taken the other alternative, he would, in the name of the House, without any new evidence whatever, and without any judicial grounds before the House, have prejudged the matter in the teeth of the decision arrived at in 1875, by placing on the Union Roll two Earldoms of Mar; for whatever else was doubtful, this was certain—that Lord Cairns (then Lord Chancellor), Lord Chelmsford (a former Chancellor), and the noble Earl the Chairman of Committees, grounded their decision on reasons absolutely inconsistent with the hypothesis of there being, at the date of the Decreet of Ranking, two Earldoms of Mar. If they had not believed that the evidence then before them proved the extinction, and failed to prove the restoration, of the ancient Earldom of Mar, it would have been impossible for them to hold that a Mar Peerage was created in 1565. He did not say whether they were right or not. He (the Lord Chancellor) adhered to what he had said on a former occasion—namely, that, as far as the judgment of the House was concerned, it had decided only that, the Earl of Kellie was entitled to a Peerage created in 1565; and that, if anyone else could now prove his right to a Peerage of Mar of earlier date, it was open to him to come forward and claim it. Noble Lords who took an interest in this question, and more especially the noble Earl who spoke last but one (the Earl of Mansfield), asked them 1230 in a debate of that sort to proceed on the ground that injustice was done by their former decision. Their Lordships were asked extra-judicially, when probably not half-a-dozen of them had even attempted to read or consider the evidence, to decide against the deliberate judgment of Lord Cairns and the other two learned Lords, and to reverse a judicial decision of that House, on the ground that it was unjust. If anything in the world required to be done judicially, it would be such a reversal of a former Order, and the reasons avowed for such reversal formed the most cogent argument against the course proposed by the noble Earl. Noble Lords, who thought themselves qualified to sit in judgment on the decisions of that House, did not appear to have taken the trouble to inform themselves accurately on some even of the simplest elements of the case. The noble Earl (the Earl of Galloway) had said he thought his Motion followed naturally from the Report of the Committee of 1877; but he (the Lord Chancellor) was astonished at that assertion. The Select Committee of 1877 were asked by Lord Kellie to put the title of Mar lower down on the Roll, and the Select Committee thought that the object of the request was, apparently, to prejudice the claim of Mr. Goodeve Erskine. They said, in effect—"If Mr. Erskine asserts his right to be Earl of Mar, let him claim to vote; let there be protests against his claim, and then the matter must come to this House to be determined." It was, therefore, adjudged that nothing should be done on Lord Kellie's Petition; but the noble Earl (the Earl of Galloway) seemed to think the logical consequence of that decision was that the contrary course should be taken. The whole of the noble Earl's Motion was founded on the argument that it was impossible that the Peerage created in 1565 could be in the place on the Union Roll in which the Peerage of Mar was now found. That would be a very good argument if it were certain that all the Peerages were put on the Roll their proper order; but the Peerage of Mar was in a position on the Roll wholly inexplicable by any theory of that Peerage. The original Peerage was much older than 1404. It was dealt with in 1404 in a somewhat extraordinary manner by the Countess Isabel, the last of the ancient line who ever held the title 1231 before 1565; and the evidences produced before King James the First's Commission of Ranking, on whose Decreet the Union Roll was founded, carried it back to 1404, and not earlier. But it was placed, by the Decreet of Ranking, and upon the Union Roll, next below the Earldom of Errol, which was not created till above half a century after 1404. If the Union Roll ought to be corrected, and if that could not be done by an application to the Court of Session, it ought to be done in a manner quite different from that proposed by the noble Earl. The Queen was the fountain of honour; and if there were errors in the Decreet of Ranking, which was made in 1606 under Royal authority, let there be a Petition presented to the Crown to have those errors corrected, and possibly the Crown might be advised to issue a Commission of Review, or might, if it were thought fit, refer any particular question of precedence for the determination of this House. If, under such a reference or otherwise, the House should ever have any duty to discharge in the matter, it must proceed in a more judicial manner than that recommended by the noble Earl.
THE EARL OF GALLOWAY,
who rose amid cries of "Divide!" reminded their Lordships that he had reserved his remarks on the merits of the case, and that, therefore, he was entitled to be heard. The judgment of the Committee to which the Lord Chancellor and another noble and learned Lord, who had quoted the words of the noble and learned Earl (Earl Cairns) upon the occasion, referred was given five years ago, and he believed that opinions on that subject had altered very much since then. He would like to recall what the noble and learned Earl (Earl Cairns) said in the debate last year—namely—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 that call."—[3 Hansard, ccxlviii. 137.]He considered that that confirmed his argument, that the Order was not consequential upon the judgment of the Committee of Privileges, as suggested in the Amendment of the Chairman of Committees.
THE LORD CHANCELLOR
observed, that when the noble Earl quoted that 1232 same passage from the noble and learned Earl's (Earl Cairns') speech on the 14th of June, the noble and learned Earl himself, after hearing the quotation, told him (the Lord Chancellor) that his words must have been incorrectly reported.
THE EARL OF GALLOWAY
replied, that although the noble and learned. Earl (Earl Cairns) was sitting below him when he read the quotation, he did not offer to challenge its accuracy. It was rather late in the day for them to be told now, in the noble and learned Earl's absence, that the report was not correct. Replying to some of the noble Earl's (the Earl of Redesdale's) criticisms, the noble Earl observed that Her Majesty the Queen had now been upon the Throne over 40 years. Supposing Her Majesty, having created a Peerage in the year 1840, had now appointed Ranking Commissioners to see that each Peer was put according to his proper precedence upon the Roll of Peers; and supposing that a Peer created by Her Majesty in 1840 came before those Commissioners in 1880, and claimed to be put on the Roll for the year 1730—would he have a chance of succeeding in such a claim? ["No!"] Well, this was exactly a similar case. It was exactly 40 years after 1565—namely, in 1605—that the Mar Peerage of 1565 was put upon the Decreet of Ranking. It was upon the authoritative documents he produced that he was put upon the Union Roll. ["Divide!"] He knew their Lordships were weary of this discussion; but he must say a word in reply to what fell from the noble and learned Lord on the Woolsack. It was not for him (the Earl of Galloway) to say what new Order should be substituted for the Order he proposed to rescind. All that he said was that the latter was at variance with the judgment of the Committee of Privileges; and he simply asked their Lordships to support and give effect to the Report of the Committee of Privileges. It had been said that it was open to the owner of the title of the ancient Earldom to go to Holyrood to vote, and thus have the validity of his vote tested. Well, the holder of this ancient Earldom did go to Holyrood; but what happened? The Lord Clerk Register declined to accept his vote, or to allow him to take part in the proceedings, threw his voting list on the floor, and told him he was a Peer of 1233 his own creation. Therefore, this course which he now proposed was the only possible way of getting over the difficulty, and paving the way for a decision. If they removed the barrier offered by that Resolution, then they would give the claimant of the title the opportunity of doing that which noble Lords said he could do already, but which he had shown himself to have been a witness of his not having been allowed to do. He hoped their Lordships would not be carried away entirely by the opinions of noble and learned Lords. He asked them, remembering what had been the practical result hitherto, to support his Resolution, in order that an end might be put to this continual confusion.
THE DUKE OF RICHMOND AND GORDON
wished to confirm the statement of the noble and learned Lord the Lord Chancellor, that his noble and learned Friend (Earl Cairns) denied the accuracy of that part of the report of his speech in Hansard which the noble Earl (the Earl of Galloway) had quoted. In proof of that, he would quote another passage inconsistent with it—namely—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."—[Ibid. 138.]For himself, he thought their Lordships on the present occasion would do well to follow the advice given on that question by the late Lord Chancellor, by the present Lord Chancellor, and also by the noble Earl the Chairman of Committees.
§ On Question, That the words proposed to be left out stand part of the Motion? Their Lordships divided:—Contents 52; Not-Contents 80; Majority 28.1234
|Abercorn, M. (D. Abercorn.)||Manvers, E.|
|Ailesbury, M.||Sandwich, E.|
|Bristol, M.||Stanhope, E.|
|Bute, M.||Stradbroke, E.|
|Bradford, E.||Lifford, V.|
|Camperdown, E.||Strathallan, V.|
|Dundonald, E.||Bateman, L.|
|Ellesmere, E.||Beaumont, L.|
|Fortescue, E.||Brabourne, L.|
|Gainsborough, E.||Calthorpe, L.|
|Clements, L. (E. Leitrim.)||Oriel, L. (V. Massereene.)|
|Clifton, L. (E.Darnley.)||Oxenfoord, L. (E.Stair.)|
|Congleton, L.||Raglan, L.|
|Conyers, L.||Rayleigh, L.|
|Elgin, L. (E. Elgin and Kincardine.)||Stanley of Alderley, L.|
|Ellenborough, L.||Stewart of Garlies, L. (E. Galloway.) [Teller.,]|
|Ettrick, L. (L.Napier.)|
|Forester, L.||Stratheden and Camp-|
|Grey de Radcliffe, L. (V. Grey de Wilton.)||bell, L.|
|Houghton, L.||Tollemache, L.|
|Leigh, L.||Tredegar, L.|
|Lilford, L.||Trevor, L.|
|Meldrum, L. (M. Huntly.)||Wentworth, L.|
|Zouche of Haryng-|
|Northwick, L.||worth, L.|
|Selborne, L. (L. Chancellor.)||Carrington, L.|
|Devonshire, D.||Clanwilliam, L. (E. Clanwilliam.)|
|Richmond, D.||Clinton, L.|
|Westminster, D.||Cottesloe, L.|
|Bath, M.||De L Isle and Dudley, L.|
|Lansdowne, M.||Denman, L.|
|Northampton, M.||Foley, L.|
|Airlie, E.||Forbes, L.|
|Amherst, E.||Foxford, L. (E. Limerick.)|
|Annesley, E.||Gormanston, L. (V. Gormanston.)|
|Cawdor, E.||Greville, L.|
|Derby, E.||Hammond, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Hare, L. (E. Listowel.)|
|Granville, E.||Kenmare, L. (E. Kenmare.)|
|Hardwicke, E.||Ker, L. (M. Lothian.)|
|Kimberley, E.||Kintore, L. (E. Kintore.)|
|Mar and Kellie, E.|
|Minto, E.||Lawrence, L.|
|Morley, E.||Lovel and Holland, L. (E. Egmont.)|
|Portsmouth, E.||Monson, L. [Teller.]|
|Ravensworth, E.||Mostyn, L.|
|Redesdale, E. [Teller.]||Norton, L.|
|Saint Germans, E.||O'Neill, L.|
|Selkirk, E.||Ribblesdale, L.|
|Spencer, E.||Saltersford, L. (E. Courtown.)|
|Bangor, V.||Saltoun, L.|
|Cranbrook, V.||Sefton, L. (E. Sefton.)|
|Eversley, V.||Sherborne, L.|
|Hawarden, V.||Silchester, L. (E. Longford.)|
|Sherbrooke, V.||Strathspey, L. (E. Seafield.)|
|Aveland, L.||Sundridge, L. (D. Argyll.)|
|Balfour of Burleigh, L.||Vernon, L.|
|Blackburn, L.||Walsingham, L.|
|Bolton, L.||Watson, L.|
|Borthwick, L.||Wolverton, L.|
|Boyle, L. (E. Cork and Orrery.)||Wrottesley, L.|
§ Resolved in the Negative.