THE EARL OF GALLOWAYrose to ask the Chairman of Committees, Whether he is prepared to advise the House as to the course of action to be pursued in consequence of the protests made by sixteen Scotch Peers and one Scottish Peeress (in her own right) against the acceptance of the vote of the Earl of Kellie as the Earl of Mar upon the Union Roll of Scotch Peers, officially reported to the House in the
Minutes of the Election of the Lord Polwarth as one of the sixteen Representative Peers of Scotland, held at the Palace of Holyrood House in Edinburgh on the 11th January 1882 in obedience to Her Majesty's Royal Proclamation,in the Return by the Lord Clerk Register of Scotland? The noble Earl said, that he wanted particularly, although it ought to be unnecessary, to guard himself against the imputation that this was in any light a question of a personal nature. He did not mean personal with regard to the Chairman of Committees himself, but as regarded the noble Earl to whom the Question alluded. So far from being a personal question, he would maintain, as he had maintained before, this—that it was a question of a Constitutional nature of very great importance. It was simply a question whether our Most Gracious Queen should be asked by their Lordships' 1080 House, at the instance of the Committee of Privileges, to actually override the Statute Law of Scotland. He would only remind their Lordships of this fact—that from the date of the Union between England and Scotland in 1707 for over a century, whenever there was any protest made on the occasion of an election at Holyrood in consequence of a Royal Proclamation summoning the Scottish Peers there, it was the custom, if there was any protest made by any Scottish Peer, for that protest to be fully taken into consideration by their Lordships' House in a Committee of the Whole House, or else a Special Committee was appointed in order to investigate and report. For a good many years that system had dropped. He was not going into the question whether the Resolutions arrived at, after an investigation of these protests, were or were not wise. As a matter of fact, he found it recorded that they were very apt to be repealed; but, at any rate, an amount of respect and consideration was shown to these Scottish Peers who, by the terms of the Treaty of Union, were not permitted to sit in their Lordships' House. Therefore it was that he wished some notice to be taken of the protest made on this occasion. The protest, which no fewer than 16 Scotch Peers and one Peeress (in her own right) had made in the same terms, came to this—that Lord Kellie, as a Representative Peer, should not be allowed to give his vote as Earl of Mar upon the Union Roll of Scotland. The protest was made by many other Scotch Peers before; but they did not think it necessary to repeat it, though they still adhered to it. It was high time that the Chairman of Committees should say what course he advised the House to pursue.
§ THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)said, he certainly did hold Office as Chairman of Committees, having been so appointed by the House; but he was not created, in consequence of that appointment, adviser of the House, and in this matter he had no particular advice to give. What he knew was that the House had found that there was an Earldom of Mar created by Queen Mary upon her marriage, and that every Peer bearing the title who had sat in that House since that Earldom was created had sat as Earl of Mar in direct descent from that 1081 creation. He did not see that there was anything the House ought to interfere with in these circumstances. On the contrary, as the noble Earl had asked him to give advice to the House, he would recommend that the noble Earl, and the other Peers who joined in the protest, should desist from taking a step which was, in some degree, condemnatory of the proceedings of the House in coming to the decision which they did judicially.
§ THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)remarked, that the advice he gave was that he and the other Peers should not protest against a decision of the House to which the House came judicially.
THE EARL OF GALLOWAYsaid, he did not protest against any decision to which the House came judicially. [Cries of "Order!"] If the noble Earl said the House came to the decision in question judicially, he must join issue with him. If this question had been brought before the House of Lords, as the Court of Final Appeal, it was quite impossible that the opinion arrived at could in that case have been arrived at, and for this reason—By the 22nd Article of the Treaty of Union it was specially reserved that no judgment ever arrived at by the Court of Session should be reversed—of course, unless it were done by Act of Parliament. But here was a case tried for two years in the Court of Session, from 1624 to 1626, upon the three counts, and upon every one of them the Court decided that the old Earldom of Mar was still in existence. He maintained that it was not within the functions of their Lordships' House to advise Her Majesty to declare that one Earldom was created in 1565, and in order to find a place for that Earldom on the Union Roll to excise an Earldom already on the Roll of Scotch Peers for 140 years before that date. He (the Earl of Galloway) believed he was not wrong in quoting it as the opinion of the noble and learned Lord on the Woolsack that the Order of the House on this subject was inexplicable. It was not within their Lordships' proper powers to advise Her Majesty as they had done; and it was really causing their Lordships' House to be looked upon with an amount of ridicule in 1082 a part of the country which he, for one, was very sorry should be the case. He hoped to have heard his noble Friend give some advice on the subject; but, as he had declined to do so, he (the Earl of Galloway) must consider further what step would be best to take. That these protests would continue was quite certain.
THE LORD CHANCELLORsaid, he must not let the observation which the noble Earl had just made with reference to himself pass without a word. He never said that the Report of the Committee for Privileges, or the Order founded upon their Report on the subject of the Peerage adjudged to the Earl of Mar and Kellie, was an inexplicable one. What he did say was that the position of the Earldom of Mar upon the Union Roll, and in the old Decreet of Ranking, was inexplicable, so far as he knew, whatever date they referred the Peerage to.
§ THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)said, that by the Act of Union it was specially provided that every privilege possessed by the Peers of England should be possessed by the Peers of Scotland. One of the greatest privileges which belonged to the Peerage of England was that that House was the only tribunal to determine who were possessed of any particular Peerage or title. This was the position of the House when a question of this sort came before it. The noble Earl spoke about proceedings in the Court of Session; but the question there was entirely in regard to landed property. From the time of the death of the last heir male in 1377 down to the present day, neither in the Parliament of Scotland before the Union nor in the House of Lords since the Union, had any person been admitted to hold the ancient title to the Earldom of Mar; and this was proved most distinctly by several successive Earls of Mar, under the creation which had been allowed by the House, having claimed to be put upon a higher precedence than that which was allowed them. No notice was ever taken of any protest from them, and none of them had ever attempted to prove their right in the Court of Session before the Union, or in this House since. That had been an extinction for more than five centuries, and he thought that ought to be enough to satisfy the noble Earl.