HL Deb 08 July 1881 vol 263 cc344-57

in rising to move— That a Select Committee be appointed to inquire into the present state of the law as to claims and assumptions of titles of peerage in the United Kingdom and in Scotland and Ireland respectively, and the means of proving and establishing the same; and as to the proceedings and claims to vote at elections of Representative Peers of Scotland and Ireland respectively; and as to the position and order of precedence of Scotch peerages upon the Roll called the Union Roll and in the Decreet of Ranking of 1606; and whether it is desirable that the present state of law or practice as to any of the matters aforesaid should be amended: And also to inquire into the present procedure and practice of this House in its Committee of Privileges, and whether such procedure and practice can be amended so as to diminish the delay and expense incident to the determination of claims of peerage and claims to vote at elections of Representative Peers of Scotland and Ireland respectively, said, the subject with which his Motion dealt was one in which their Lordships took a deep interest; but it did not call upon them to express any opinion whatever on the merits of the question, but only to pronounce that an inquiry was desirable in this matter. With regard to the first part of the Motion, he would point out that, under the present state of the law, the course adopted by a claimant to a title or Peerage was this—He presented a Petition to the Crown, that Petition was referred to their Lordships' House, the Lord Chancellor investigated the case, and, if he thought that everything was satisfactory, he reported to the House that the noble Lord had made out his title. If the Lord Chancellor was not satisfied, the case then went before the Committee of Privileges. In Ireland, for a considerable time, every Peer who wanted to prove his title was obliged to come before a Committee of Privileges, a very tedious and, in some cases, a very expensive process; but in 1857, by a Resolution of their Lordships' House, the course adopted with regard to Irish Peers' claims and votes was assimilated to that which took place in the case of English Peers. In Scotland, however, the Peer was not called upon to prove his title, as in the case of English and Irish Peers; and, as a consequence of this, it sometimes happened that persons presented themselves at the election of Scotch Re- presentative Peers, and claimed to vote, whom, perhaps, very few people ever heard of before, and it was nobody's business in particular to object. Individual Peers might object, and generally did object; but the result only was that the elections were sometimes characterized by scenes that were not very dignified. He thought it might be desirable to inquire whether, in this respect, it might not be well to assimilate the usage with regard to Peers claiming to vote in the Scottish Peerage, and to put them on the same footing as persons claiming Irish and English Peerages. Well, then, the Committee which he asked their Lordships to grant was to inquire as to the position and order of precedence of Scotch Peerages upon the Roll called the Union Roll, and in the Decreet of Ranking of 1606. Well, he saw the noble Lord (Lord Balfour of Burleigh) objected to that part of the inquiry, and had placed a Notice on the Paper that the words be left out; but he confessed that he did not see how they were to go into an inquiry of this nature, leaving out, at the same time, all reference to two very important documents which, after all, were the basis of the claim of precedence of the Scotch Peers. To the next part of his Motion, whether it was desirable that the present state of that law should be amended, he thought it was generally admitted that some inconvenience had arisen from the present state of the law of Scotland, and that these inconveniences had been very generally recognized. He thought that was apparent from the fact that at various times Committees had been appointed to investigate this subject, and their Lordships had at various times passed Resolutions with the view of altering or improving the state of things as regards the method of establishing Scotch Peerages. In 1832, in 1847, in 1869, and in 1874 Committees were appointed to inquire into the various branches of this whole question. The Committee of 1874, of which his noble Friend (the Earl of Rosebery) was Chairman, was rather wider in its scope than that which he asked to be appointed, because they went into the political question, which he hoped this Committee would not have anything to do with. They recommended that all Scotch Peers should be called up to their Lordships' House, and that the Roll should be as in Ireland—a Roll of individuals, and not Peerages. He did not think that any of the recommendations of that Committee had been acted upon except one, which was, that a Petition should be presented to the Crown, praying Her Majesty to create no more Irish Peers. He had pointed out some matters in which, more particularly as regarded the election of Scotch Peers, this Committee must inquire; but perhaps the last paragraph in the Motion was the most important. He believed there was no doubt that very great delays took place before their Lordships were able to give judgment; and he thought it would be well to consider whether some means might not be adopted by which these delays would be obviated. It was not always possible to obtain the services of noble and learned Lords for Committees of Privilege when they were very much engaged at the time. It was very difficult indeed, sometimes, to get lay Lords to sit in sufficient numbers to form a quorum. He was not surprised at this, because lay Lords had no voice in the decision of the tribunal. They had to listen to long, abstruse, and highly technical legal arguments, which they were often not capable of following; and, in fact, as far as the lawyers were concerned, it did appear to him that the whole thing, not to speak disrespectfully, was a solemn farce. He served once upon one of those Committees, and although he was not desirous of shirking any work that might be useful, still he could not see any advantage of sitting the whole day long, listening to speeches which it was utterly impossible, from the want of legal knowledge, to understand. He thought, therefore, it was very well worth considering whether some modification might not be made in the constitution of the tribunal, so as to insure some approach to expedition in its proceedings. Then the expense was very great; indeed, he was told that Lord Balcarres, in the process to establish his title, had to spend upwards of £20,000; and he understood in the case of the Duke of Montrose, who did not succeed in establishing his claim, the trial cost him much more. It would, he submitted, be very desirable to obviate the great delay and expense attending upon cases of this kind.

Moved, that a Select Committee be appointed to inquire into the present state of the law as to claims and assumptions of titles of peerage in the United Kingdom and in Scotland and Ireland respectively, and the means of proving and establishing the same; and as to the proceedings and claims to vote at elections of Representative Peers of Scotland and Ireland respectively; and as to the position and order of precedence of Scotch peerages upon the Roll called the Union Roll, and in the Decreet of Ranking of 1606; and whether it is desirable that the present state of law or practice as to any of the matters aforesaid should be amended: And also to inquire into the present procedure and practice of this House in its Committee of Privileges; and whether such procedure and practice can be amended so as to diminish the delay and expense incident to the determination of claims of peerage and claims to vote at elections of Representative Peers of Scotland and Ireland respectively.—(The Earl of Airlie.)


in rising to move the omission of the words— And as to the position and order of precedence of Scotch Peerages upon the Roll called the Union Roll and in the Decreet of Ranking of 1606, said, that before moving his Amendment, he wished to say a few words on that part of the Motion which he did not oppose. He did not object to it, but he did not think that any case had been made out for going into the whole of the inquiry suggested by the noble Earl. At the same time, he would not urge the point upon the House, provided the higher legal authorities in the House were willing that such an inquiry as this should be undertaken. He thought the inquiry was not required, because the state of the law as to claim and assumption to title in the Peerage of Scotland was perfectly well known. The numerous Committees that had sat upon this question had thoroughly established to the satisfaction of everybody what the state of the law was. This question was, he believed, fully discussed before a Committee of the House so long ago as 1832; and the Committee issued a Report recommending, among other things, that the claimants to Scotch Peerages, and persons claiming to vote in Scotch Peerages, under which no vote had been recorded since 1801, should not be allowed to vote without first going before the Committee of Privileges. They also recommended that in all cases when claims were made for Peerages, on succession by collaterals, except brothers of the last noble, a cer- tificate should be issued by the Lord Chancellor in the same way as for Irish Peerages. The first of those two recommendations was not acted upon till 1847, the other had not been acted upon at all. The Act of 1847 provided also that whenever any Peer or Peeress should have established his or her right to any Peerage, or the right to vote in respect of any Peerage, and the same should have voted at any election of Representative Peers, then the Lord Clerk Register, or Lords of Session, should not, during the life of such Peer or Peeress, allow any other person claiming to answer to such title to take part in any such election, nor should it be lawful for any such Lord Clerk Register, or Lords of Session, to allow the vote of any other such person unless directed by the House of Lords. That was a perfectly clear enactment, and if it had been acted on, he believed some of the painful scenes which had occurred at late elections of Representative Peers at Holyrood would not have occurred. At all events, they would not have occurred a second time; and now that this section had been brought under the notice of those who were in the habit of attending these elections, he should think there was very little danger of these scenes occurring again. The one false step which had been made in this matter was the rescinding, in 1862, of the Resolutions which obliged all claimants for Peerages, who claimed to succeed in any other way than in a direct line, to come before the Committee of Privileges. He thought the noble Duke (the Duke of Buccleuch), who moved the rescinding of the Resolutions in 1862, had publicly expressed in this House his regret at having taken that step with regard to claims for the possession of Scotch Peerages. He was of opinion that if that Resolution were re-enacted, it would meet all the difficulties under which they now laboured. With regard to the last part of the Motion, he must say that a very good case could be made out for inquiry into the practice and the procedure of the Committee of Privileges. Their practice and procedure, it might safely be said, required amendment on several points. In addition to the delay caused, and the very unpleasant position which lay Peers were called upon to occupy, there was the enormous and overwhelming expense to the unfortunate claimant, and those who opposed the claims before the Committee. The Earl of Crawford had spent, it was said, £20,000 in pursuing his claim before the Committee. His noble Friend near him (the Earl of Mar and Kellie) told him he had spent a very large sum in prosecuting his claim. He himself had unfortunately very intimate knowledge of the amount which he, and his father before him, were obliged to spend in making good his claim to the Peerage which he now had the honour to enjoy. He thought, therefore, a very good case could be made out for inquiring into the practice of the Committee of Privileges. But when they were asked to inquire into the position and order of precedence of Scotch Peerages on the Roll called the Union Roll, and in the Decreet of Ranking of 1606, he must ask their Lordships to pause before they started on any such course. The Motion, as he understood it, was to inquire into the position and precedence of individual Peerages on the Roll; and he must say that he thought, whether that settlement was perfect in all respects or not, it would be exceedingly unwise to re-open the whole subject, after the settlement had existed for upwards of 250 years, on account of some minor imperfections which were alleged to exist in it. Perhaps their Lordships were not aware how that Decreet and Ranking took place. It took place in 1606, and the cause of its being ordered by King James was the constant quarrels and bickerings which took place among the Scotch Peers as to their precedence, when they were in the habit of going in state from the Palace of Holyrood up to the Scottish Parliament, and it was with the view of composing those differences that this Decreet was ordered. The Commissioners were instructed to summon the Peers before them, and place the Peerages in their proper order. He believed some went before them, and some did not; at any rate, the matter was gone into very hurriedly, and the result was that even greater dissatisfaction was caused than had existed before. According to the Union Roll, Peerages were not put in anything like complete consecutive order, according to the dates of their creation. The Decreet of Ranking never gave satisfaction; but, nevertheless, he thought that to upset a document which had been a settlement of the question for upwards of 250 years would lead to a great deal more trouble and annoyance, and perhaps a great deal more ill-feeling, after the new settlement had been arrived at, than if matters were left as they were. He could not conceive anything more unfortunate than re-opening such a question. He should pity the Committee that had to undertake it, because it would take a large number of years to get through it. There was, besides, machinery existing for putting right any defects on the Roll. If any Peers felt themselves aggrieved by the position they held on it, there was machinery by which such a man could protest and get himself placed above one who was wrongly put above him. He believed their Lordships had more than once asked the Court of Session, as in 1740, to provide a more perfect Roll than the Union Roll, and that the Lords of Session protested that the matter was too difficult for them to solve, and that they could not really undertake to do it and settle it satisfactorily. He would further like to ask of legal authorities whether it, was competent to their Lordships to undertake such inquiry? He had always understood that questions of precedence, except so far as related to seats on the Benches of this House, were not within the cognizance of their Lordships. It might be said that, under the Motion, the Committee would not be instructed to inquire into and settle the precedence of individual Peerages, but only into the state of the law on the subject. If that was so, surely it was not an inquiry which it would be worth while going into; and he could not see how it could be dissociated from the much larger question to which he had referred. In conclusion, he should be guided by the amount of support he received in the discussion as to whether he should press to a division the Amendment which he had put on the Paper. The noble Lord then moved his Amendment.

Amendment moved, To leave out ("and as to the position of order of precedence of Scotch Peerages upon the Roll called the Union Roll, and in the Decreet of Ranking of 1606.")—(The Lord Balfour of Burleigh.)


said, he would suggest that the time allowed between the issue of the Writ and the making of the Return in regard to the election of Representative Peers should be shortened from 52 days to 32, in consequence of the increased facilities of communication now existing.


said, after much dissatisfaction had been expressed lately at the manner in which the Union Roll had been dealt with at the elections at Holyrood—there had been a number of Protests at every election—it was all the more necessary that inquiry should be made into the matter, and there was no sort of reason why inquiry should be evaded.


said, there were two subjects which must be of paramount interest in that House, and as to which every information desired ought to be put before it. The one was the claims to Peerages which would confer a seat in that House; the other was the claim to vote for Representative Peers who were to have seats in that House. The greater part of this Motion proposed an inquiry into the state of the law as to claims to Peerages, as to the manner in which they ought to be substantiated, and into the procedure which should be resorted to in case they became the subject of dispute. If Her Majesty's Government, in a matter of that kind, particularly where the Prerogative of the Crown was concerned, thought it right to accede to such an inquiry, he certainly should not be disposed to offer any opposition to it; but, on the contrary, thought that advantage might arise from the inquiry. With regard to an observation of his noble Friend behind him (Lord Balfour of Burleigh), as to the Committee of Privileges, he did not say that the procedure of that Committee might not be improved, and especially that part of it which required the presence of seven Peers; but any persons who fancied that the Committee of Privileges and the proceedings before it could be made an inexpensive matter would, he believed, find themselves disappointed. But there were matters connected with claims to the Peerage—the manner in which the country, and even the national archives, would have to be ransacked for ancient documents, the character of the evidence which had to be brought to bear upon those documents, the time over which search must extend, perhaps for years, the manner in which documents must be printed and submitted for most careful examination—all those were things which could not be deter- mined without a very great amount of expense. He did not mean to say that the expenses were not greater than they ought to be; but these must necessarily be very expensive processes. So far, therefore, as the Motion proposed inquiry into the procedure of the Committee of Privileges, he did not object to it. It was a Motion which concerned not only Scotland, but England and Ireland also. It touched them all. But then, in the centre of his Motion, the noble Lord proposed certain special inquiries with reference to Scotland, and this seemed to him to be open to objections, and he thought their Lordships ought to be careful before they acceded to that part of the Motion. A claim to a Peerage, or a claim to vote for a Representative Peer, was one thing; a claim to simple precedence was a wholly different thing. It had nothing whatever to do with the question of right to a seat in this House, and precedence was a matter which, except so far as it had been taken out of the control of the Crown by Act of Parliament, was for the Crown. They knew that the great statute of precedence—51 Henry VIII.—stated on the face of it that the regulating and granting of precedence was for the Crown; and, therefore, it proceeded to declare that the establishing of precedence of Peers in Parliament was within the Prerogative of the Crown. No precedence beyond that remained for the Crown to regulate. Now, for what purpose were they to inquire into this subject? Was it to raise again the question of the Mar Peerage? He hoped not.


said, it was not.


said, he was glad it was not to raise that question. The Union Roll and the Decreet of Ranking might have their faults; but, if so, let individual cases stand upon their merits. Let them not have a Committee to inquire specifically as to the value of the two documents which were mentioned in that Motion, and which related to Scotland alone, and did not deal with the question of the Peerage generally, but only with precedence. If there arose a dispute as to which Peerage was the more ancient and had a right to sit above the others, that was a claim, not to a Peerage, but to precedence in that House. He did not believe that that question had arisen in the memory of any Member of that House, or for 100 years. He thought, therefore, that their Lordships would have done enough—if he might offer that advice—by intrusting to the Committee the very important investigation which the rest of the Motion would give to them. To go beyond that would, he believed, cause great embarrassment, delay, and trouble, without answering any good object.


My Lords, I have to say for the Government that I am not prepared to offer any objections to the Motion of the noble Earl. There can be no doubt, I think, that it would be a good thing that inquiry into the succession to Peerages and claims to vote should take the same course, and be under the same law, in all parts of the United Kingdom. At present it is well regulated in England and in Ireland, and it may be a consequence of that regulation that nobody in England or Ireland thinks of making a claim to a Peerage before it has been investigated in this House, or perseveres in it when it has been disallowed after investigation in this House. No doubt there have been cases in which titles have been assumed which have not been substantiated; but those have been cases depending upon questions of fact, and as soon as decisions of this House have been obtained, such claims as are contrary to them have ceased to be made. But it must be known to all your Lordships that that which is the rule in England and in Ireland is not the rule in Scotland, and that from time to time various titles to Peerages have been assumed in Scotland by persons who have not taken the means which were open to them of submitting their claims to investigation in this House; and hitherto there have been no means provided by law, except under particular conditions, for causing those claims to be inquired into; and one consequence of that has been that some discussions, very inexpedient and undesirable, as to the grounds of particular decisions of your Lordships' Committee of Privileges, have been raised in the way of general debate in this House. To put the course of procedure, in all such cases, on a uniform and well-regulated footing, seems to me a desirable thing. With respect to the last part of the Motion, as to the procedure and practice of this House in its Committee of Privi- leges, while I entirely agree with what my noble and learned Friend has said, that in most cases, or at least in many, there must be much unavoidable expense, yet I think it is something like a scandal that from year to year, from Session to Session, nobody knowing how much time will be occupied in one Session, or how many protracted stages there may be, the same claims are allowed to drag on and continue very much at the convenience of those who are interested in conducting those cases out-of-doors. I cannot but think that, although it may be impossible strictly and literally to apply to those claims exactly the same rules which are applicable to ordinary cases of civil litigation, yet a very much greater approximation might be made—that is to say, claimants might be required within reasonable limits of time, and in something like a regular course, to bring in their evidence, and take the judgment of the Committee of Privileges upon its effect. You might not be able, in all cases, to prevent them from being renewed, but you could prevent claims from being protracted over a very great length of time. The question of precedence does not directly interest this House, except so far as it may affect either the weight or value of evidence in cases of Peerage claims, and the relative precedence in this House of any Representative Peers from Scotland, as between whom questions of precedence may arise. Precedence stood originally upon the Royal Prerogative; but, as the noble and learned. Lord has said, so far as relates to England, the legislation of the Reign of Henry VIII. has put it upon the footing of law. As to the Scotch Representative Peers, they, by the Act of Union, take rank in this House as at the date of the Act of Union. Among themselves, they take rank when the dignities are of the same degree, according to the dates of their creation. If it so happened that an Earl of Rothes, for example, and some other noblemen now standing above the Earl of Rothes upon the Union Roll, were at the same time to be returned as Representative Peers, the question of precedence between them might arise. Now, the matter stands in this peculiar way. The Decreet of Ranking of James I. is not an instrument by which the King, in the exercise of the Royal Prerogative, granted any precedence. It was the result of the Commission of Inquiry issued by authority of that King to look into the documents upon which the actual rights of priority or precedence would depend, and to report accordingly. The King established the result of these findings; but the Commission, at the same time, provided that if anyone should be aggrieved by the order of precedence so settled, he might appeal to the Court of Session, and that Court might pass a decree to rectify any mistake that might have been committed. Under that power the Court of Session, at the beginning of the Reign of Charles I., altered, in one instance (that of the Earl of Buchan), the precedence fixed by the Decreet of Ranking; and an Act of Parliament was passed to confirm that change. One or two other cases were brought forward; but, so far as I have been able to trace the matter, they came to nothing, and the claims were dropped. So that, except in the case of the Earl of Buchan, no actual rectification has been made; and as to all other Peerages, the Union Roll simply represents the Decreet of Ranking. It may be a matter of serious doubt whether the Court of Session would now consider that it has authority to entertain any such question of priority, seeing that the only original authority was derived from King James' Commission, and that, in the single case in which the order of precedence has been changed, it was thought necessary to have an Act of Parliament to confirm the decision in Lord Buchan's favour. It appears to me that, in that state of things, it might be desirable, not to inquire whether this Peer or that is in the proper place in the Union Roll or Decreet of Ranking, an inquiry which I should deprecate quite as much as my noble Friend who moves the Amendment; but into the state of the law as to the means of correcting such errors (if any) as may exist in those instruments. As I understand the Motion, all that is intended is that the Committee should inquire, not into the position and order of precedence of the Scotch Peerage upon the Roll, but into the present state of the law with regard to several matters, of which this is one. I have explained the reasons which led me not to anticipate the objections which have been made on this point. My mind is perfectly open upon the subject, and I do not desire in the least to influence your Lordships if you think this part of the proposed inquiry unnecessary.


said, he did not rise to take any part in the discussion; nor did he think that the matter was of great importance as to whether this Committee sat or not. The fact was, that all the information the Committee required was in the hands of the House. The main points that were raised with respect to the Scotch Peerage, which were sufficiently obvious, were already fully laid before the House in the Report of the evidence of the Committee of 1874; but if there was any anxiety on the part of their Lordships to sit on another Committee, he saw no reason to prevent their doing so. At the same time, he would point out that what was wanted was not a Committee or information. There were various important recommendations of the Committee now in evidence before their Lordships. They had been in the hands of their Lordships for some years, and there had been no tendency whatever to take any action upon them. The matter was one of so much delicacy and of dignity, as affecting a large section of the Peerage, that it could only be introduced upon the responsibility of Her Majesty's Government; and certainly, considering the present state of Public Business, it was not to be expected that the Government would be prepared to bring in such a measure this year. As regarded that very difficult point, which was not merely a question of precedence but a question of seemliness at the election of Scotch Peers, they had a suggestion that, instead of a Roll of Peerage to which there were likely to be a dozen claimants, and which had led to scenes almost giving one the idea of personal combat, these scenes might be avoided by making the Roll one of individual Peers and not of Peerages to which people could lay claim. The preparation of such a Roll would require a Committee of great lawyers, and a Committee that would sit with great labour and patience for, he should think, a considerable number of years, and when that was done they should have some hopes of getting the question put into a satisfactory state. He wished to point out that a mere collection of information was a very flabby and endless mode of dealing with this question. He did not know if noble Lords were anxious to sit upon another Committee, but he was quite certain that it was not by Committees that this subject could be settled. This Committee would have to guard itself very strictly against the danger pointed out of descending into the usual controversies concerning the Mar Peerage.


thought that it would be unwise to re-open this question, which had long been settled, for good or ill. An inquiry into a Peerage claim was very different from any other legal proceeding, in consequence of the number of years that the inquiry extended back. In the Annandale Peerage case, for instance, the Committee had to investigate a line of descent commencing in the 15th century. He had received a letter from a noble Duke (the Duke of Buccleugh) who had taken much interest in the matter, in which he stated it would be impossible for the Committee to go into the whole of the details of the subject unless they were prepared to sit for many months, or perhaps years, and that it would involve a large expenditure of money, public as well as private. He agreed with the remarks that had fallen from the noble Lord who had just sat down, and he hoped the House would agree to the Amendment of the noble Lord behind him.


said, the only object of the part of the Resolution objected to was to investigate and see whether this Decreet of Ranking was a document of value, without the intention of going into any particular Peerage He could not but hope their Lordships might think it best, therefore, to accept the Resolution proposed by his noble Friend opposite in its entirety, after hearing the remarks of the Lord Chancellor on the subject.


said, that, in accordance with the feeling of the House, he was willing to accept the Amendment of the noble Lord (Lord Balfour of Burleigh).

On question, that the words proposed to be left out stand part of the motion, resolved in the negative; and motion, as amended, agreed to.