Lords Sitting of 10 April 1883

Preamble
Their Lordships met at Twelve of the clock.

MINUTES.
PUBLIC BILLS—First Reading—Army (Annual)* (25); Land Drainage Provisional Order* (26); Local Government (Ireland) Provisional Orders (No. 2)* (27); Tramways (Ireland) Provisional Order (Extension of Time)* (28).
Second Reading—Representative Peers (Scotland) (5); Representative Peers (Scotland) Election Procedure (6), negatived.
Royal Assent—Consolidated Fund (No. 2) [46 Vict. c. 5]; National Gallery (Loan) [46 Vict. c. 4]; Explosive Substances [46 Vict. c. 3].
THE LORD CHANCELLORacquainted the House, That Her Majesty had been pleased to issue a Commission to several Lords therein named, for declaring Her Royal Assent to several Acts agreed upon by both Houses of Parliament.
House adjourned during pleasure.
House resumed.
The Royal Assent was given, by Commission, to three Bills.
House adjourned during pleasure.
House resumed at a quarter past Four of the clock.

REPRESENTATIVE PEERS (SCOTLAND) BILLS.

  PETITION PRESENTED.
  THE EARL OF GALLOWAY,in presenting a Petition from the Members of the Learned Professions in Scotland and others, praying that in any legislation bearing upon the Peerage of Scotland the jurisdiction of the Court of Session may be provided for, said: My Lords, in allusion to the two Bills of very grave importance which stand on your Lordships Orders to-day for second reading—namely, the Representative Peers (Scotland) Bill and the Representative Peers (Scotland) Election Procedure Bill, I hope I may be allowed to read a Petition which I have been requested to present. It is signed by two-thirds of the Sheriffs of Scotland. Perhaps I may be allowed to remind English Peers that the Sheriffs of Scotland are learned men, their qualifications being very different from those of Sheriffs in other parts of the United Kingdom; and I may say that the absence of the signatures of the other Sheriffs is due to various causes, some of them being absent from this country, and this Bill having been brought on for second reading rather hurriedly, there has been no opportunity of getting the Petition forwarded in time for their signatures. The Petition also contains the signatures of the Lord Provosts of Edinburgh and Glasgow as representing the people of Scotland; but the object of its promoters was not to get numbers of signatures, but specially to secure names representative of all the men learned in law and history. The noble Earl presented the Petition accordingly:—
  "That, previous to the Treaty of Union, questions involving the right to a Peerage of Scotland were decided by the Court of Session—the Supreme Court of Scotland; that questions of precedence between Peers were expressly reserved to that Court in the decree of ranking, and that by the 19th Article of the Treaty of Union the 'authority and privileges' of the Court of Session were upheld unimpaired;
  "That, nevertheless, subsequently to the Union the practice has been introduced of Scottage Peerage claims being referred, in the first instance to, and virtually decided by, the resolutions of the Committee for Privileges of your Lordships' House;
  "That such Committee, composed of members of your right hon. House, not necessarily conversant with the law of Scotland, has not been found in all respects a satisfactory substi-

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  tute for the Supreme Court of Scotland in dealing: with the rights of Peers of that kingdom, and that its proceedings have not always secured that general acquiesence of opinion which the rulings of your Lordships' House should command;
  "That it appears from one of the bills before your Lordships it is proposed to empower your right hon. House to make alterations in the Union Roll, and that as a matter affecting both public and private interests, as well as one in which Scottish national sentiment is concerned, it deserves your Lordships' earnest solicitude not to prejudice the rights of precedency of any of the ancient and historic dignities of Scotland as established by that roll.
  And praying—
  "That in any legislation hearing upon the Peerage of Scotland your Lordships will provide for the jurisdiction of the Court of Session, subject to appeal to your right hon. House, as a judicial tribunal, and that in the case of petitions relating thereto Her Most Gracious Majesty be advised to direct reference in the first instance to the said Court of Session, and your petitioners will ever," &c.
  Petition that in any legislation bearing upon the Peerage of Scotland the jurisdiction of the Court of Session may be provided for; of Members of the Learned Professions in Scotland and others.—(The Earl of Galloway.)
  Petition read, and ordered to lie on the Table.

REPRESENTATIVE PEERS (SCOTLAND) BiLL.—(No. 5.)
(The Lord Chancellor.)
REPRESENTATIVE PEERS (SCOTLAND) BiLL.—(No. 5.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  Moved, "That the Bill be now read 2*."—(The Lord Chancellor.)
  THE EARL OF KINTOREsaid, he would rather personally have taken a silent part in the discussion of this measure; but he felt that there were higher considerations than mere personal feelings, and he therefore asked leave to address a few words to their Lordships' House, both on the ground that, as a Peer of Scotland, he was concerned in the maintenance of the rights and privileges of that body secured to them by the Treaty of Union, and also on the narrower ground that, as he had had the advantage of being a Member of the Committee of this House which reported on the subject last year, he had had some opportunity of studying the question. He wished to say at once that he fully recognized the desire of the
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  noble and learned Earl upon the Woolsack to do all he could to bring the question to a satisfactory settlement. It was just because bethought this Bill, as it now stood, contained one or two proposals that would inflict an injustice on the Peers of Scotland, and, in some degree, militate against the object of the noble and learned Lord, that he ventured to draw their Lordships' attention to it. With regard to the first part of the Bill he had very little to say, unless it were at a future stage, when he might possibly propose an Amendment on Clause 1, in regard to the duties of the Lord Clerk Register. However that might be, the first four sections of the Bill happily established the principle that the Electoral Roll should be a Roll of Peers, and not of peerages. But when they came to Clause 5, they there found a proposal to which he, for one, wholly and entirely objected. That clause provided that any person claiming to have succeeded to the honour enjoyed by a deceased Peer, might present a Petition to the House of Lords, praying that his name be entered on the Election Roll. The clause provided—
  "That the House of Lords shall thereupon cause inquiries to be made into the same by the Lord Chancellor, in the manner usual in like cases of succession to any peerage in Ireland, and the House, if satisfied with the report received from the Lord Chancellor, may direct the Lord Clerk Register to insert the name of the petitioner on the Election Roll accordingly, or, otherwise, may refuse to give such direction until he has established his claim before the Committee of Privileges."
  He wished to speak of the Lord Chancellor with the greatest deference. The noble and learned Earl filled his high Office in a manner which earned the admiration of this House and of the country. But the noble and learned Earl did not owe the high position which he held to any special knowledge of Scottish law. He was essentially an English lawyer, and therefore he thought it a most undesirable proposal that the fortunes of Scottish Peers, many of them holders of very ancient Peerages, should be assigned to the decision of the noble and learned Earl. Possibly he would be told that the Lord Chancellor made inquiries in the case of Irish Peerages, and that in regard to these he was in the habit of referring to the Ulster Roll. But in the Committee

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  which sat last year, they had had the advantage of hearing evidence with regard to the Ulster Roll. It appeared that the standard reference in all questions of Irish Peerage was the Ulster Roll. It also appeared that the power to add to that Roll and of deleting from it was absolute. With regard to the proposed terms of reference to the Lord Chancellor, he considered that they were too wide, and, though he did not for a moment mean to say that his noble and learned Friend would erase any name from the Roll without good and sufficient grounds, he said that the powers were far too large to be willingly accepted by the Scottish Peers as a model definition of the jurisdiction of the Lord Chancellor. Sir Bernard Burke had informed the Committee last year that it was the custom in times past to submit the Roll annually to the Irish House of Lords, and that to-day it was the custom to submit it annually to the Lord Lieutenant. He was asked if that was for its correction and approval, and he replied that he did not think so. He thought it was simply for the information of claimants. He (the Earl of Kintore) was aware that there were some representative Peers sitting in this House who were not at one with him on this subject; but he was perfectly and absolutely certain that the proposal to assign these cases to the decision of the Lord Chancellor, as set forth in the Bill, was one which met with strong resistance on the part of a large preponderance of the Scottish Peers. He did not wish to be understood for a moment as objecting to the powers of this House to decide questions of Scottish Peerage. He believed it was undisputed that in former times that power was exercised. However that might be, it had for many years been the practice for this House to decide upon them, and he, for one, was content that it should there remain. At the same time, he wished to point out strongly the advantage that would accrue to this House in arriving at a decision were they to obtain the opinion of the Court of Session. The Committee of Privileges was an absolutely impartial body, but he believed that, with possibly a single exception, all the noble Lords sitting on that Committee were other than Scottish Lords. While that state of things existed, he feared there was great danger that the de-
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  cisions of their Lordships' House, founded upon the Report of that Committee, would continue to meet with grave dissatisfaction in Scotland. He did not ask that the Court of Session should be intrusted with the final determination of questions affecting the rights of the Scottish Peerage. All he wished was that the opinion of that Court should be obtained on any questions referring to the Electoral Roll. He claimed that a considerable financial saving might be effected by adopting this proposal. At present, charter chests had to be ransacked in Edinburgh, and agents brought to London for an indefinite period and at considerable expense, whereas if they could produce the documents at the bar of the High Court in Edinburgh, and prove it by witnesses, that evidence might be accepted by their Lordships' House, and a great deal of expense thereby saved. Something might also be said about the dignity of their Lordships' House. Although he was more than anxious that the rights and privileges of the Scottish Peerage should be maintained, he was equally jealous with regard to the Prerogatives and Privileges of this House. He believed the other House of Parliament would be in their strict right were they to refer Petitions against the return of any Member of their House to be tried by themselves; but, as a matter of fact, they invariably referred such Petitions to be heard before the Judges of the land. Why they could not do the same thing in somewhat similar circumstances passed his understanding. With regard to Section 8, he saw it was proposed in that clause that the House should have power to rectify the Union Roll. He should like to know plainly what that meant. He remembered that a few years ago a proposal by the noble Duke before him to rectify the Roll, was successfully resisted by the noble Marquess opposite, and he was not aware of anything that had since occurred to alter the reasons that had then been advanced. In conclusion, he begged to thank their Lordships for the attention with which they had listened to his observations on this, the first, occasion of his addressing their Lordships' House.
  LORD ELPHINSTONEsaid, he did not agree with the noble Earl who had just spoken in thinking that the Court

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  of Session should exercise control in those cases.
  THE EARL OF KINTOREexplained that he had not said that the Court of Session should exercise control, but only that the House would find great advantage in obtaining; their opinion.
  LORD ELPHINSTONEsaid, that the Court of Session had no jurisdiction in these cases, and did not claim any such jurisdiction. The noble and learned Lord on the Woolsack had referred, in introducing the Bill, to several cases that had come before this House in the last century, and the noble Earl the Chairman of Committees (the Earl of Redesdale) had also referred to several cases. He believed no fewer than 40 Peerage cases connected with Scotland had been decided in their Lordships' House, and he was not quite sure whether there were not more. But he intended to refer to two cases which had not been brought before this House. In 1873 a claim was made by Mr. Goodeve Erskine to the estates held by a noble Lord who sat in this House. The question was raised in the Court of Session, and it was there decided that he could not sustain his claim to the estates unless he proved his claim to the title of Earl of Mar. Lord Shand, one of the Lords in the Outer House of the Court of Session, pointed out that the question of title could not be determined by that Court, and fell to be determined by the House of Lords. The case was referred to the Inner House, when Lord Ardmillan observed—
  "The right to the title of Earl of Mar is directly and immediately involved in this case, nor has this Court the power of disposing of that question of Peers' succession; it must be decided by the House of Peers."
  That was the opinion of two Lords of Session within the last 10 years. Those who advocated the Court of Session as a Court of Appeal, seemed to forget that, by the Act of Union, Peers of Scotland became Peers of Great Britain, with equal rights and privileges in all respects with Peers belonging to other parts of the Kingdom except that of voting. Were they prepared to ask the Peers of England to submit their Peerage cases to the decision of the Court of Session? If they were not, then he could not understand the equality of rights and privileges. The same rule must apply to the one as to the other. Suppose one Lord
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  in the Court of Session had jurisdiction over Peerages, and a contested case came before him. That contested claim was decided, say, in favour of A; B naturally appealed to the House of Lords, and the House of Lords said that B was the Peer and A the Commoner. Here they should have had a different verdict from the highest Court in England, and the highest in Scotland. He contended that if they gave this jurisdiction to the Court of Session, it would necessarily lead to great expense. He therefore hoped their Lordships would not consent to that proposal.
  THE MARQUESS OF HUNTLYsaid, he had nothing to withdraw from the expression of opinion he had given when the Bill was introduced by the noble and learned Lord on the Woolsack, because he considered the Bill a real honest attempt to settle a vexed question. There were only two points of the Bill which he thought it would be necessary to alter, and he hoped that if the second reading were passed, the noble and learned Lord would take these two points into his careful consideration. He congratulated the noble Earl opposite (the Earl of Kintore) on the manner in which he had addressed their Lordships for the first time, and hoped this would not be the last time that he would make a contribution to the debates in their Lordships' House. With regard to the great point, whether the Court of Session should make primary inquiry into Scottish Peerage cases, the Committee which had inquired into the matter had reported distinctly in favour of the Court of Session being the preliminary body to which inquiry should be remitted. The Act of Union did nothing to impair the jurisdiction of the Court of Session. He did not wish to do away with the ultimate jurisdiction of this House, for it was the Supreme Assembly to which, ultimately, all such cases must come. What he would suggest was, that when a Petition was presented in a Scottish Peerage case, it should be remitted by the House to the Court of Session for inquiry. He believed it would be done cheaper and better in this way, because the Judges would be acquainted with all the points in the case, and the Court of Session should report to the House. If there was no objection taken to the Report, then the Lord Chancellor would ratify it, and it

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  could be moved in the House and resolved that the decision should be carried into effect. If this was not done, then there could be an appeal to the House. He believed this was an arrangement which would be most compatible with the feelings of the majority of the Scottish Peers, and also compatible with the feelings of the majority of the people of Scotland. The other proposal of the noble Earl was that they should have the same system introduced in Scotland as they had in Ireland. He was very much startled to hear such a proposal made by the noble Lord on the Report of the Committee of 1874, which was presided over by the noble Earl (the Earl of Rosebery). On reading the Report of the Committee, he found that Clause 6 only went in a limited extent in that direction. All the clause said was that the Committee had recommended that, for the future, the Roll of Peers for Scotland should be drawn up by the Lord Clerk Register of Scotland, under the direction of the House of Lords, and that no alteration was to be made in it without authority of the House of Lords. In the Report of the Committee of 1874 he saw nothing recommending an inquiry by the Lord Chancellor. With all due deference to the Peers of Ireland, he thought it would be rather an objection to introduce any Irish rule whatever into the Scottish Peerage, and he hoped the noble and learned Earl would withdraw the proposal. He certainly did not oppose the second reading of the Bill; but he hoped the views of his brother Scottish Peers would be carefully considered in Committee.
  LORD INCHIQUIN,as a Member of the Committee which sat last year, said, that the procedure adopted in regard to Irish Peerages was most simple, and as advisable as any that could be adopted. When they made their recommendations, they did so with the view of putting an end to the indecent exhibitions which took place at the election of Scotch Peers. One of the points put before them by the noble Earl who first spoke was that of expense. He believed there would be no saving of expense by the cases being taken in the first instance before the Court of Session. Nine times out of ten there would be a second inquiry, leading to additional expense. With regard to the allegation that they were
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  departing from the old Scotch system, they must remember that when the respective Unions took place, Scotch Peers became British Peers, and Irish Peers became Peers of the United Kingdom, so that now the Peerage was practically one. Why, then, was it desired to refer questions relating to a part of that Peerage to a Court sitting only in one part of the Kingdom? He thought that a strong argument for retaining the original jurisdiction of the House of Lords.
  LORD WATSONsaid, he was a Member of the Committee last year, and he desired to offer one or two words in explanation of the considerations which induced him to agree with the views of the majority of the Committee. By the Act of Union, Peers of Scotland became entitled to the privileges of British Peers; but he disputed the position of the noble Lord, or what appeared to be his position, that they ceased to be Peers of Scotland. He believed that the people of Scotland took a very great interest in this Bill. It had been very largely discussed, and, he was sorry to say, with a degree of heat and acrimony in some cases which was altogether unnecessary. Reference had been made in many quarters to the rights of the Court of Session to deal with Peerage cases before the Act of Union. He doubted whether the evidence, if carefully sifted, would bear out all that was said on the point. He should rather be inclined to come to the conclusion, upon such evidence as he had been able to discover of a satisfactory character, that the Sovereign, the fountain of honour in Scotland, reserved to himself the right of determining by whose advice he should be governed in the matter of recognizing a new Peer or recognizing the right of succession; and, accordingly, although they found that in the majority of cases it was intimated that the Peer claiming honours had better go to the Court of Session, and establish his right by succession or otherwise, yet there were occasions upon which His Majesty took the advice of his Privy Council, and there were other occasions on which he discarded the advice of both these bodies, and acted solely on his own opinion. All these questions as to the proper tribunal for disposing of Peerage claims before the Union seemed to him to be out of place now, and it was idle to discuss them. They were, no

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  doubt, of great antiquarian interest, and threw a great deal of light on the history of the time and the Constitution of the period; but that did not afford the smallest aid in the present question, because the Act of Union put an end to the jurisdiction of the Court of Session. After that Act had been construed in one way by the Sovereign, and by the Peers themselves, and by the Court which was now said to have merely a rival claim, was it to be said that all this was to be set aside, and that they were to go back upon the old procedure before the Act of Union, instead of following the procedure which had since been uniformly adopted? He rather thought if they were to adopt the rights of the Scottish Sovereigns with respect to Peerages, that the King or Queen of Britain would be quite entitled to take the advice of this House, or any other competent body selected to advise on the matter. He thought that if they were to test this question purely on the ground of the Constitution of Scotland, that was the result they would necessarily arrive at. But the real question, and the only question raised in the present Bill, was this. It was the only question, as he understood it, to which the majority of the Committee desired to call attention. He spoke to some extent under correction, because his judicial duties elsewhere to a considerable extent interfered with his attendance in the Committee, and lie had not the privilege of hearing a great deal of that evidence, which tended to show that this House had recognized the authority of the Court of Session since 1707. But his noble and learned Friend opposite (Lord Moncreiff), who represented the law of Scotland on that Committee, never, so far as he understood, entertained any doubt that this House had not exercised any authority except what was conferred upon it by the Act of Union, or proposed to take away that authority from this House and transfer it to the Court of Session. He did not attribute to the majority of the Committee any such intention, and if he had thought that the Resolution of the Committee was such, he should have accompanied his adherence to it with a very earnest protest against the grounds on which they had arrived at it. The Committee of Privileges was, as he understood on very high authority, not a judicial body. He did not think it was very
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  material, in considering a Bill like this, whether it was a judicial body, because the work it had to perform was purely judicial; and he was right in assuming that most persons were of opinion that the Committee of Privileges was quite competent to perform that judicial work efficiently and to the satisfaction not only of the Peers themselves, but of the country at large. But the question for consideration was, How should the Committee most efficiently discharge its functions? He consented to the recommendation which had received embodiment in the Bill on the understanding that they should have it in their power to derive what assistance might appear to them to be of advantage from the Court below, either in the way of relieving the House of Lords of what some conceived to be the drudgery of taking evidence and collecting documents, and still further the assistance of the Judges of the Court of Session where it might appear to the Committee that their assistance would be valuable. Although he had every confidence in and every respect for the distinguished men who had hitherto sat on the Committee, and for those who sat in that House now, he was bound to say that when they came to consider the judicial question, it was of importance, it was at times an enormous advantage, to have a complicated case thoroughly sifted before they came to deal with it finally and determinately by having the opinion of competent men, pointing out the divergent lines of thought and conclusion that might arise from a full consideration of the evidence in the case. It was entirely in that spirit that he concurred in the decision of the Committee, and he should be sorry to see the House dispense with its authority, or delegate its authority. He did not consider that either of these proceedings would be advantageous to the claimants of Peerages, or consistent with the dignity of the House. But lie could see nothing derogatory to the House in delegating its duties in regard to taking evidence, or recovering documents which even the ordinary Superior Courts were in the habit of committing, in important cases, to one of its own members. There were many cases in which matters were so referred by a Superior Court to a clerk or a Commissioner. Why should the House of Lords perform those duties itself which

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  a Court of Appeal or a Superior Court would delegate to an Inferior Court, or an officer of Court? He did not say that the House of Lords should lose the control in cases; but it might with advantage be relieved from some portion of the drudgery which otherwise it would have to perform. Something had been said with reference to the mention of Ireland in the Bill. It was not a usual mode of legislation, and he would remind the Lord Chancellor that in Scotland they were singularly sensitive with regard to their national privileges, and he was afraid he would find that in Scotland it would not be deemed consistent with the national dignity to refer for authority in a Scottish Bill to Ireland. It was very plain, if the phrase admitted of a short and easy explanation, that there was no reason why that explanation should not be given in terms without reference to Ireland. There was one other point which he desired the noble and learned Lord on the Woolsack to consider before the Bill came on at another stage, and that was the proposition to give statutory power to open up matters of precedence established by the Union Roll. There might be mistakes on that Roll; but it closely followed the Decreet of Ranking of 1606, and practically had governed precedence in Scotland for nearly 300 years, and it was open to any Peer to assert his proper place according to that Roll. He should say in general terms that there was no measure before the House now in which it was suggested that the Court of Session should have exclusive jurisdiction, or that any reference should be made to the Court of Session, unless it should be found necessary. But he would earnestly press on the noble and learned Lord to consider whether the powers of reference given to the Committee of Privileges should be somewhat wider than they were at present as contained in the Bill. The extent of the reference itself was entirely within the power of the Committee of Privileges, and why should they tie up their hands to taking evidence, or to the recovering of certain documents, thus inflicting on the House the necessity of sitting day after day hearing evidence and performing work of a nature which was not generally either very pleasant or very edifying? He trusted that the Bill, with such Amendments as might be made
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  upon it in Committee, would not only prove a satisfactory solution of the question—he would not say of "indecencies"—he would say rather the unfortunate incidents attending the election of Peers in Scotland—but would, at the same time, settle all those questions which had been raised as to the rights of the Sovereign in times gone by, and the legal effect of the Act of Union.
  THE EARL OF BELMOREsaid, with reference to the remarks of the noble Lord as to this being an adoption of Irish law, that the law referred to was a modern enactment, passed since he himself had come into that House. In 1857 a Bill was introduced to extend to Irish Peers the advantages extended to every Peer in England—namely, that the Lord Chancellor should inquire whether a son was the rightful successor to his father, or a brother to a brother, instead of obliging them to go before the Committee for Privileges, as was formerly always the case, even when no difficulty whatever arose. But this had nothing to do with the Act of Union, or with any Irish law, but was an Act which, as he had said, was passed since he entered that House.
  LORD BALFOURthanked the noble and learned Earl on the Woolsack for having taken up this question; and he was glad to find that in the course of the present discussion the propriety of this Bill, and of giving it a second reading, had been acknowledged. He would defer saying anything upon the merits of the proposals that had been made in regard to it until he saw what Amendments were placed upon the Notice Paper in the next stage. He would observe, however, that he did not share in the least the jealousy which had been expressed in regard to the duty proposed to be laid on the Lord Chancellor under the Bill; it was a purely Ministerial duty, and in a matter so nearly affecting those who sat in that House, it seemed to him the Lord Chancellor was a very proper person to perform the work. He had no jealousy whatever of the Lord Chancellor. The noble Lord who had spoken from the Front Bench had disposed of the question of what was the position in the past of the Court of Session, as bearing upon the controversy. He was very glad that he had given a very clear exposition of the position of the Court of Session; but he could not share with him

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  the desire to see the Court of Session called in to judge upon Peerage cases. That was a matter on which the House would do well to guard its jurisdiction, and he would view with the very greatest possible suspicion any proposal to transfer any part of the jurisdiction of the House, however small, to the Court of Session. He would be very glad if those who were in favour of that would say whether they intended to make the Court of Session a Court of First Instance in Peerage cases. Was the Court of Session to have the right of expressing any opinion? If the Court was not to express an opinion, he thought it was hardly proper to bring it into this matter. If it were to express an opinion, it was making it a Court of First Instance, and instead of having one tribunal to settle Peerage cases, they would have two. That, he thought, would be most unfortunate, for the result of that would be long and expensive processes. He should give general support to the noble and learned Earl's Bill, and he hoped his Lordship would press it on so that the question might be settled once for all during this Session of Parliament.
  LORD MONCREIFFsaid, having had the honour of presiding over the Committee appointed to consider this subject, he wished to say a few words before the discussion closed. He did not propose, although the Bill of his noble and learned Friend did not proceed exactly upon the lines of the Report of the Committee, to throw any obstacle on the present occasion in the way of his proposition. On the contrary, he was glad his noble and learned Friend had introduced this Bill, and that for two reasons. In the first place, he thought that the difference of opinion which took place, and was exhibited in the Committee, and still more in the discussion which they had at the end of last Session, satisfied him that, except in the hands of the Government, they were not likely to bring this matter to a satisfactory conclusion. In the second place, although those proposals were not altogether, as he had said, upon the lines of the Report of the Committee, they did contain material out of which a satisfactory adjustment of the differences that still existed might be made. He wished, however, to recall attention to the real ground of the appointment of the Committee, and what
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  was the subject with which they were mainly required to deal with. It was not to set up a tribunal for the adjudication of the rights of the Scottish Peers, but to remedy abuses which had existed ever since the Union, to which various Acts of Parliament and Resolutions of the House applied, but which objections continued as strong and as objectionable as ever. It was simply this—that, as regarded the meetings of the Scottish Peers to elect Representatives, there were, and had been, so far as the law was concerned, no means whatever to determine who were entitled to act and vote on such occasions, and for this reason, that the Roll called over was not a Roll of individual names, but a Roll of titles and dignities, to which anyone might answer, without their being power or authority in the body collectively to determine. That had been the subject of discussion in this House over and over again, and it was thought that state of confusion and irregularity ought to be put an end to at once and for ever. Accordingly, it was proposed that not a Roll of Peerages, but a Roll of names, should be made up by the Lord Clerk Register, whose official duty it was to take charge of those matters. Of course, in order to do that, it was necessary to have some means of ascertaining who were the persons whose names should be put upon the Roll. What was proposed by the Committee was not that any power should be given to the Court of Session or anyone to determine an absolute right to a title, but simply to set up a Registration Court, in order that the right of the franchise might be determined from time to time, not the absolute right, but the primâ facie right. The Committee thought it was not unreasonable, as the Lord Clerk Register was the Scottish official having charge of this matter, and the titles to Peerages were contained in the Register Office, that the Court of Session, in the first instance, should be the Court to which reference ought to be made in making up the Roll. The Committee did not wish to give to the Court of Session jurisdiction excluding that which belonged to their Lordships' House. It was thought the proposed arrangement would be for the convenience of all parties. Therefore, it did not certainly occur to them that they were in any degree entrenching upon the privileges of

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  the House. It was only proposed to make up an Election Roll, and not to determine the absolute right of Peers. That did not seem an unreasonable proposition. The truth was, whether the Scottish Peers and English Peers were British Peers or not, the Scottish Peers did stand in a position different from the English, and the privilege of voting at elections without any authority was one which the Scottish Peers had enjoyed from the time of the Union. It was proposed in the Bill to deal with questions of protest. These were controverted and contested cases. There were few of them, and in order to make up an Election Roll there were not more than three or four at the most which would have to be decided. The Bill went further, and in the matter of succession affected a greater number. When a man succeeded his father, it was proposed, and must be proposed, that some means or other should be adopted in order that he might show his title to have his name entered upon the Roll. In regard to the protests, he had only to endorse entirely the recommendation of his noble and learned Friend opposite. When they came to Committee on the Bill, it might be worth considering whether the power of referring to the Court of Session contained in the 7th clause should not be made larger and wider. There was a recommendation to that effect in the Report of the Committee. In regard to the 5th clause, that was a matter of very considerable interest, and, although he had no desire to throw any obstacle in the way of the proposition, he ventured to think the proposition of the Committee was not an unreasonable one. Their object was to place upon the Roll, the successor to the title, and that the Lord Clerk Register should have access to the Court of Session in the first instance in a mere matter of propinquity or pedigree. It did seem rather hard that Peers who formerly required no proceedings should have to come to their Lordships' House, whatever the nature of their claims, when in all probability no one could take any objection to them. On the whole, the propositions were not very far apart; and after this discussion and the suggestions made, they might possibly be able to reconcile them.
  THE MARQUESS OF LOTHIANsaid, this question had caused a great deal of
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  unnecessary feeling in Scotland. It was the result of a sort of Home Rule feeling. There was an idea in Scotland that the English were inclined to interfere too much with Scottish rights, and that the English Peers interfered with the rights of the Scottish Peers. That was not a matter which ought to have any influence upon their Lordships in deciding a question of this sort. The Bill, lie thought, was a good one, and he thanked the noble Lord for introducing it.
  THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)said, he would remind their Lordships that a great many of the Peers of Scotland, as well as of Ireland, were also Members of that House as Peers of the United Kingdom. In such cases the right of succession was necessarily determined in the ordinary way by this House, and there would thus be two inquiries, one before that House and the other before the Court of Session in the case of Scottish Peers, if the suggestion of the noble Lord were adopted. In his opinion, the simplicity of the proceedings proposed in the Bill brought in by the noble and learned Earl on the Woolsack was such that no reasonable objection could be taken to them. If there was any difficulty in any case, the Lord Chancellor would report to the House, and if the proof of the successor were simple, it could be conducted in the cheapest way.
  THE LORD CHANCELLORsaid, he had listened to the discussion which had taken place with great interest and satisfaction, because the tone of it had been such as to encourage him in the belief that the endeavour he had made to settle this important question would not fail. He assured their Lordships that he had not undertaken the matter from any disposition presumptuously to interfere with the privileges of the Scottish Peers, or with questions which he freely admitted noble Lords connected with Scotland might be much better qualified to settle. For a great length of time this matter had occupied the attention of their Lordships in Committees and otherwise, and no result had followed. Last Session a Bill was introduced by a noble Lord from Scotland, but it was not persevered with. It was suggested to him by more than one noble Lord, and that not from one side of the House only, that he

  1955
  should consider whether the Government could not do a service in this matter by endeavouring to settle the question. The Government were not unwilling to do BO, having regard to the Report of the Committee presided over by his noble Friend (the Earl of Rosebery) in 1874. He had thought that, looking to the mixture of legal questions, and the position which, however unworthily, he held by the virtue of his Office in this House, it would probably be satisfactory to their Lordships—as it appeared to be the desire of all that the matter should be settled—that it should be in his hands as suggested. But for the manner in which this debate had been conducted, he might have repented of the decision which he then arrived at. He had no conception at the time that any feeling would be excited in Scotland or elsewhere upon this matter, or that it would be supposed there was any intention to show less than due consideration to the feelings of any portion of the Scottish people. His sole object was to get this matter settled upon reasonable, satisfactory, and practical lines. The only principle which to him appeared indispensably necessary was the maintenance of the authority and jurisdiction in these matters of the House of Lords. That he thought absolutely necessary. Nothing which he had yet heard or read—for there had been much interesting literature as well as speeches upon this subject—had shaken his conviction. He had no disposition to be inflexible, and he did not object to any changes in detail, provided they were consistent with that principle, and in his judgment really likely to work as improvements. He was bound to say that while he by no means rejected the notion that the particular manner in which he proposed to enable the House to refer for assistance to the Court of Session might be capable of being usefully amended or enlarged, yet he had heard nothing to lead him to think that it would be consistent with the principle of maintaining the authority of their Lordships' House, or practically convenient to go so far in that direction as was proposed by the Committee of 1882. He was bound frankly to say that, because, if he had thought otherwise, he should have been the first to admit the consideration due to the noble Lords who were Members of that Committee. But
  1956
  when it was proposed, in the first instance, to refer the settlement of the Roll to the Court of Session, and afterwards also to refer all disputed questions coming to this House to the Court of Session, he could not assent to either of those propositions. To say that the right of voting should in the first instance be settled by the Court of Session was not consistent with maintaining the authority and jurisdiction of the House. For what would be the effect of settling the right of voting by a body which had no jurisdiction? Either they might put persons practically in a position to vote, and it might be, by a majority of votes, to turn an election of Peers, whom this House might hold to have no such right, or they would gain no greater certainty as to the Roll of Peers, or as to their rights, than they had at present. If the body to whom such a power was given had jurisdiction already, it might be consistent; but not so, if it was recognized as having no jurisdiction, and as being called in simply by virtue of its presumed special learning. He had come to the conclusion that the method on which the Bill he had introduced proceeded was more certain in its effect, and more consistent with the principle he had laid down. As to the Electoral Roll of Peers, he thought the Lord Clerk Register should make out a Roll, including all those who were not subject to protest, and that those who were omitted should take the course necessary to establish their claim to the Peerage. If there was no real contest, the thing would be simple and easy. Coming to the question of succession, his noble Friend who first addressed their Lordships (Lord Kintore) did not seem to understand the provisions of the clause relating to that matter, and appeared to think that some arbitrary power was proposed to be conferred upon the Lord Chancellor by it. This was an entire mistake, which probably would never have been made if the practice as to Irish Peers had not been referred to. He was sorry he had put anything in about Ireland. It was a blunder to mention Ireland, and blunders were sometimes worse than crimes, as their Lordships knew. His excuse was that Ireland and Scotland were alike in this, that while the conditions of election differed, they both elected Representative Peers. The procedure as to both countries might, in that respect, reasonably be expected to agree in sub-

  1957
  stance, and must necessarily differ from that of England. In the case of an English Peerage, the person who claimed to have succeeded on the death of a Peer applied to the Lord Chancellor, that a writ might be issued to summon him to Parliament, without any Petition being presented to the Crown or to the House. The Lord Chancellor had to consider the materials laid before him, and to say whether the proof of succession was complete and beyond question. If it were, he directed the writ to issue, and the Peer took his seat in the House according to the usual procedure of this House. If it were not—if there were any question whatever—the Chancellor reported to the House, and the House referred that question to the Committee of Privileges. The difference, and the only difference, in the case of Irish Representative Peers was this, that under the Act of 1857, a Petition was presented to this House, and the House was in the habit of referring it to the Lord Chancellor, who, when there was no writ to be issued, had no original authority. What was proposed in this Bill was merely that Petitioners on succession should present their Petitions to the House, and the House should then refer them to the Lord Chancellor. If any noble Lord from Scotland had any proposition to bring forward which would better ascertain the succession, and place it for the future more entirely beyond controversy—for that was the object of the Bill—he should be quite willing to accept any good method of doing it; although, primâ facie, he should have thought that what the Legislature, for practical reasons, had very recently considered proper for Ireland, were it only for the sake of avoiding differences of procedure, was that which would, in the first instance, seem best. With regard to the other criticism upon the point as to the order of precedence on the Union Roll, it was the practice of a number of noble Lords, who thought themselves not properly ranked in that order of precedence, to enter protests at every election. He saw it stated in learned works, although, for his own part, he doubted it, that the Scottish Prescription Act was supposed to run in favour of precedence, and that to avoid that Act these continual protests were made. He doubted whether the Prescription Act had anything to do with the order of precedence, but the practice
  1958
  of protests for precedence still went on at Holyrood at every election. He had not thought it safe to assume that it would be satisfactory to noble Lords from Scotland that the precedence upon the Union Roll should be stereotyped now by Act of Parliament. He had no attachment to the provision of the Bill on this subject, and should be quite content to be guided by the general sense of the House on the point. He did not know that he need say anything more; but he could not help observing that he had received great satisfaction from the general assent in this discussion to the principle that the jurisdiction was in this House, and ought to be maintained House, of their Lordships who had made I themselves acquainted with the literature to which he had referred, knew that there were those by whom that proposition had been very confidently and strenously denied. He had read a very interesting and able work, written by an accomplished Nobleman, no longer, he was sorry to say, among them, in which this House was put in the disagreeable position of exercising a usurped jurisdiction, without any warrant of law, in all Scottish Peerage cases, and indeed in all Scottish appeals whatsoever, except in so far as recent statutes might recognize them. And, with respect even to statutes of the Imperial Parliament, that noble Person did not appear to admit their authority on these subjects. He was very glad that it had become unnecessary to refer to antiquarian learning as to the jurisdiction, whatever it was, exercised before the Union, in cases involving rights of Peerage, by the Court of Session. He agreed with what had fallen from his noble and learned Friend (Lord Watson) on that subject. There were five or six cases in which the Court of Session, before the Union, exercised the jurisdiction of reducing, that was setting aside, deeds or charters purporting to grant, or to surrender, honours and dignities or rights connected with them. That appeared to him to be a different thing from a direct jurisdiction such as that which had been exercised by this House, since the Union, in questions of Peerage. In two or three other cases, the Crown, or the Scottish Parliament, or the Scottish Privy Council, seemed to have remitted, for determination by the Court of Session, questions more directly concerning the right to Peerages; just as King James VI. by the Decreet of

  1959
  Ranking, referred to that Court the correction of any errors in the Decreet, as to the order of precedency. The anxious desire that he had to see this question satisfactorily settled, and that in a manner satisfactory to Scotland, as well as to other parts of the United Kingdom, would lead him to receive with great respect and attention all proposals for amending the details of the Bill which might come from any noble Lord.
  THE EARL OF GALLOWAYsaid, he was glad that the line adopted by the noble and learned Lord rendered it unnecessary for him to oppose the second reading of the Bill. He hoped their Lordships would agree to the second reading of his own Bill, without discussion, the more so because he hoped to point out the really small difference that existed between the two Bills. On the invitation of the noble and learned Lord, lie proposed in Committee to move Amendments to the noble and learned Lord's Bill which would have the effect of making it very like the measure which stood in his own name upon the Paper. The noble and learned Lord seemed to think that a proposal had been made to abolish their Lordships' jurisdiction. He begged to assure the noble and learned Lord that no such proposal was contained in his Bill, nor was any proposal of that kind made in the Committee which had considered the subject. The whole question merely came to this—whether it was advisable that they should get the benefit of a Report of the Court of Session, instead of having the trouble and expense of ransacking charter chests in Edinburgh for transmission to London, and of sending up witnesses to be examined in London—whether it was not preferable that the Committee of Privileges should escape all that drudgery, and refer the question to the Court of Session to consider these points, to take the evidence, and send it up along with their own Report to this House, before the House sent the case at all to the Committee of Privileges? That was the main point of difference between the two Bills. The noble and learned Earl had said that he had made a blunder in putting Ireland into the Bill. He (the Earl of Galloway) thought there should be some Memorandum laid upon the Table of the House showing how the noble and learned Earl arrived at the conclusion as to who had the right to vote at the election of Irish Represen-
  1960
  tative Peers, so that the House might be in a position to know by what means he proposed to arrive at a decision as to who had a right to vote at Holyrood as to the Representative Peers of Scotland. There was another point to which he would refer, though it was, perhaps, one rather of sentiment. Almost immediately after presenting the Petition which he had that day presented to the House, he had received a telegram to the effect that the Petition was to have been presented by his noble Friend Lord Napier, who was unable to be present owing to the inquiry now being conducted into the case of the crofters in Skye; and, therefore, it was put into his hands. He would refer to it for one moment. In addition to the signatures of the Provosts and of ex-Provosts of Edinburgh and Glasgow, it contained those of at least two-thirds of the Sheriffs of Scotland, of whose important position in the country the House was well aware, and also of all the Professors of Law and History in Scotland with the exception of throe, the want of whose signatures was to be accounted for by unavoidable accident. He, therefore, thought the Petition was entitled to great weight. He wished to thank the noble and learned Earl for having taken up the subject, for he agreed that it was far better that a Bill of this sort should be in the hands of the Government of the day. He certainly hoped the noble and learned Earl would favourably consider the three points he had mentioned—namely, first, as regarded interference with the Union Roll; secondly, as regarded the primary reference to the Court of Session; and, thirdly, as to the unnecessary complication proposed as regarded the form of proof for future successors to Scotch Peerages.
  Motion agreed to; Bill read 2a accordingly.
  Moved, "That the Bill be committed to a Committee of the Whole House on Friday the 4th of May next."—(The Lord Chancellor.)
  THE EARL OF GALLOWAYappealed to the noble and learned Lord to postpone the Committee until after Whitsuntide. He had had a communication from the Faculty of Advocates on the subject, who wished to have time to consider the Bill, and they would not be able to do so until after the conclusion of their present Whitsuntide Holidays.
  THE DUKE OF RICHMOND AND GORDONsaid, he objected to the postponement of the Committee. He had also had a communication from the Faculty of Advocates, and he thought there would be sufficient time for them to consider the Bill.
  LORD BALFOURsaid, he wished to point out, as an additional reason for not deferring the Committee stage of the Bill, that the Chairman of the late Committee would be engaged in his judicial duties and would be unable to be present.
  In reply to Lord MONCREIFF,
  THE LORD CHANCELLORsaid, that the Bill had been introduced into the House as far back as the 26th of February last, and then, according to desire, an unusually long time was arranged to elapse before the second reading to secure the presence of the noble Lord the Lord Justice Clerk; during that period the Faculty of Advocates had met and having discharged their duties in Edinburgh had dispersed. There was, therefore, abundance of opportunity for them, if they wished to make any suggestions on the subject of the measure, to do so; but it had not been done. Under these circumstances, he could not consent to the postponement.
  THE EARL OF GALLOWAYsaid, that he made the suggestion for the convenience of the noble and learned Lord (Lord Moncreiff), and was perfectly willing to withdraw it, as the object did not appear to be attained.
  THE MARQUESS OF HUNTLYsaid, that the Faculty of Advocates had only themselves to thank if they had not sufficient time to consider the measure. If they did not discharge their functions, he thought it was their own fault.
  Motion agreed to.

REPRESENTATIVE PEERS (SCOTLAND) ELECTION PROCEDURE BILL.—(No. 6.)
(The Earl of Galloway.)
REPRESENTATIVE PEERS (SCOTLAND) ELECTION PROCEDURE BILL.—(No. 6.)

  SECOND READING.
  Order of the Day for the Second Beading read.
  Moved "That the Bill be now read 2*."—(The Marl of Galloway.)
  LORD BALFOURsaid, it was a somewhat unusual course to take on the same day—the second reading of two Bills on the same subject, but on different lines;
  1962
  and he thought it would be a more convenient course, if they were to postpone the second reading of this Bill of the noble Earl's (the Earl of Galloway) for a month or two, so as to give noble Lords an opportunity of considering in Committee the Bill which had already been read a second time, and if any Peer was not satisfied with it, he could move Amendments to it in Committee.
  LORD MONCRIEFFsaid, it was not out of the ordinary practice to have two Bills on the same lines read a second time on the same day; and he thought it would rather jar on the general feeling, either to throw out this Bill, or postpone the second reading. He was sure that no bad result would accrue from doing so.
  THE LORD CHANCELLORsaid, he had no desire to throw any difficulty in the way of adopting any course that seemed most desirable to the House; but he took it for granted that if the Bill was read a second time, the noble Earl would not fix an earlier date for the Committee than that which had been fixed for the other Bill—namely. March 4.
  THE DUKE OF RICHMOND AND GORDONsaid, he thought the noble Earl (the Earl of Galloway) would do well not to press the second reading of his Bill at the present time, as it would be extremely inconvenient to have two Bills upon the same subject before them, and, besides, he would have an opportunity of proposing any Amendments he desired on the Bill of the Lord Chancellor. If the Bills were the same, one was unnecessary; if they were different, their Lordships would be undoing what they had just done.
  THE MARQUESS OF HUNTLYsaid, it was only due to the noble Earl (the Earl of Galloway) that the Bill should be read a second time on that occasion, seeing that the noble Earl drew it up last Session; but when it had been read a second time, he would suggest that it should not be put down for Committee until after the Whitsuntide Holidays.
  THE MARQUESS OF LOTHIANsaid, he entirely agreed with what had fallen from the noble Duke (the Duke of Richmond and Gordon), and he was surprised that the second reading had not been withdrawn, as he was convinced, under the circumstances, that it would be extremely inconvenient to have two Bills on parallel lines; therefore, if the Bill

  1963
  was not withdrawn, he trusted that the House would reject it entirely.
  THE EARL OF GALLOWAYsaid, he did not wish to inconvenience their Lordships; but the course he suggested was not without precedent. Just before the Easter Recess, two Bills on the same subject had been read a second time in the House of Commons on the same night. He would point out that his Bill was ordered to be printed on the 10th of July last year. He had duties to attend to in Scotland up to the middle of August, and he had the Bill put down for a day in that month, thinking it would be accepted practically without amendment. Meantime, there were a number of Amendments put on the Paper; and he was simply studying their Lordships' convenience by withdrawing the Bill last Session, on the understanding that he would re-introduce it at the earliest opportunity this Session. He asked their Lordships to act on the recommendation of the noble and learned Earl (the Lord Chancellor), and allow the Bill to be read a second time that night, in which case he would undertake not to bring it on before the Committee before the 29th of May.
  THE LORD CHANCELLORsaid, it would be a convenient course if the noble Earl would withdraw the Bill. But, at the same time, he wished personally to take the course which was most courteous towards the noble Earl. He thought that, without compromising the principle their Lordships had affirmed, he might be at liberty to indulge the desire of the noble Earl if he pressed for a second reading of the Bill.
  On Question? their Lordships divided:—Contents 20; Not-Contents 31: Majority 11.

  CONTENTS.

  Selborne, E. (L. Chancellor.)

  Hopetoun, L. (E. Hopetoun.)

  Ailsa, M.

  Meldrum, L. (M. Huntly.) [Teller.]

  Moncreiff, L.

  Denbigh, E.

  Stewart of Garlies, L. (E. Galloway.) [Teller.]

  Sidmouth, V.

  Strathallan, V.

  Vaux of Harrowden, L.

  Blantyre, L.

  Watson, L.

  Brabourne, L.

  Wentworth, L.

  Clements, L. (E. Leitrim.)

  Wigan, L. (E. Crawford and Balcarres.)

  Congleton, L.

  Zouche of Haryngworth, L.

  Dunsany, L.

  Ellenborough, L.

  1964

  NOT-CONTENTS.

  Bedford, D.

  Elphinstone, L.

  Richmond, D.

  Fitzgerald, L.

  Westminster D.

  Foxford, L. (E. Limerick.]

  Belmore, E. [Teller.]

  Hartismere, L. [L. Henniker.]

  Doncaster, E. [D. Buceleuch and Queensberry.]

  Hothfield, L.

  Inchiquin, L.

  Lathom, E.

  Ker, L. (M. Lothian.] [Teller.]

  Mar and Kellie, E.

  Redesdale, E.

  Kinnaird, L.

  Monson, L.

  Cranbrook, V.

  Ormonde, L. [M. Ormonde.]

  Balfour of Burleigh, L.

  Reay, L.

  Belper, L.

  Romilly, L.

  Blachford, L.

  Saltoun, L.

  Carrington, L.

  Sudeley, L.

  Coleridge, L.

  Thurlow, L.

  Douglas, L. (E. Home.]

  Wrottesley, L.

PARLIAMENT SCOTCH BUSINESS.

  QUESTION.
  THE EARL OF MINTOasked Her Majesty's Ministers, Whether, after they shall have concluded their deliberation on the subject of the re-arrangement of Business connected with Scotland, it is their intention to make a communication to this House, as has been promised, in respect of the other House of Parliament; and whether a Notice of such intention would, be placed on the Notice Paper?
  THE EARL OF KIMBERLEY, in reply, said, that whenever the Government had decided upon the course to be taken in this matter, they would, of course, desire that their Lordships' House should have the information they had to give with regard to it as well as the other House. He did not think, however, it was a matter on which it was usual to place a Notice on the Paper; but he had no doubt an opportunity would soon be afforded noble Lords for making any observations on the occasion of its being brought forward, and they would then be glad to hear anything that any noble Lord desired to say. A statement on the subject would probably be made on Tuesday next.
  LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDERS (NO. 2) BILL [H.L.] (NO. 27.) A Bill to confirm Provisional Orders of the Local Government Board for Ireland relating to the towns of Carlo w and Listowel, and to the Newtownards Gas Undertaking: And
  TRAMWAYS (IRELAND) PROVISIONAL ORDER (EXTENSION OF TIME) BILL [H.L.] (NO. 28.) A Bill to confirm a Provisional Order made by the Lord Lieutenant of Ireland in Council under the Tramways (Ireland) Act, 1860, extending the time for the completion of the Dublin and Blessington Steam Tramways:
  Were presented by The LORD PRESIDENT; read 1a; and referred to the Examiners.
  House adjourned at Seven o'clock, to Thursday next, a quarter past Ten o'clock.