HL Deb 19 May 1885 vol 298 cc880-9

Order of the Day for the Second Reading read.


in moving that the Bill be read a second time, said, ho would offer but a very few obser- vations, because the subject was one wrapped up in legal forms and technicalities respecting genealogical matters, of which he could not, in any degree, profess to be a master, and therefore would not enter upon minutely. Moreover, it was not necessary to go into those matters then, for the Preamble of the Bill, which would hereafter require to be proved before a Select Committee of the House, or the Committee of Privileges, gave a very clear and succinct narrative as to its object, and he was thus saved the trouble. But he desired, however, to explain the exact position of this Bill relatively to the Government. It was not, in the strict sense of the word, a Government Bill. When it was presented, following the invariable custom on those occasions, it was presented under the signature and on the authority of Her Majesty; and therefore it was deemed only proper that such a Bill should be presented to the consideration of the House by one of Her Majesty's servants. It might also be taken for granted that Her Majesty, in sanctioning the Bill and affixing her signature to it, acted under the advice of Her Ministers and Law Officers. As he had said, he did not feel himself competent to deal minutely with the details of the Bill; but if he were to sum up its object in a single sentence, which would make that object clear to all, he would say it was practically a Bill for clearing up misunderstandings of more than three centuries' standing with regard to the Mar Peerage. Up till 1875, the date at which the decision was given by Her Majesty's Legal Advisers, the general idea was that the ancient title of Mar was almost universally believed to be prehistoric in its nature. But in 1875 a decision was given by the Committee on Privileges altogether opposed to that idea. It established that in 1565 Queen Mary of Scotland had created a new title of Mar, and that that title of Mar was the only one known to be in existence; and it gave the title to the then Earl of Kellie, now the Earl of Mar and Kellie; and, so far as that decision was concerned, this Bill did not affect that decision, nor the position of that noble Earl. But there had been, he thought, and still was, a primá facie case for believing that while the decision of the House of Lords on that occasion was undoubtedly correct, and that the earlier Earldom of Mar was extinct, that did not affect the possibility that the ancient Earldom of Mar might still be in existence also. That there was such an ancient Earldom in existence there did appear to be considerable probability, and there was also considerable probability that it descended to the heirs female as well as to heirs general; and as regarded that latter fact, which was thought to be of great importance, and which would have to be proved by the Select Committee if the second reading was passed by their Lordships, he might cite the circumstances in regard to the conferring of the second title. He would only cite two Scottish Noblemen, the Earl of Douglas and Alexander Stuart, who both assumed the title of Earl of Mar on marrying heirs of the Mar family. He, for one, failed to understand how, except through the heiresses, they had the power or right to assume the title of Earl of Mar. As regarded that point, there was primá facie evidence in support of the Bill; but, at the same time, it would not be considered proved until it had been proved before the Select Committee of this House. The next point to which ho had to call their attention was that a Charter was cited in the first part of the Preamble, which was that, in 1404, Isabella, Countess of Mar, executed a Charter conferring the title on her husband and their joint heirs, and this Charter, being confirmed by King Robert III., might be considered as the Charter of the Mar Earldom. There was a previous Charter executed in the same year, and he proposed not to give any opinion as to the greater validity of the one over the other; but there did exist this important difference between them—that whereas this Charter of December was confirmed by a Royal Charter of Robert III., no such confirmation of the earlier Charter of August appeared to have taken place. It was quite true that, some years subsequently, the surviving husband, Alexander Stuart, Earl of Mar, executed a renunciation of the title to the then Sovereign of Scotland, and received a new apparent grant to himself and to his legitimate heirs. Without imputing any incorrect motive to the Monarchs of his native country at that time, it might be said that the object prompting that surrender was obvious, and showed laxity of principle on the part of the Crown. The next point they came to was that from the death of Isabella, Countess of Mar, in 1407, until the creation of the new Peerage of Mar in 1565, the title of Mar appeared to have become dormant. It was quite true that Robert, Lord Erskine, was third heir in the middle of the l5th century to this Isabella, Countess of Mar, and it was also true that he occasionally assumed the title of Earl of Mar; but he did not assume it as a right. The Crown afterwards, more than once, granted the title to members of the House of Stuart; but when they came to 1565, they found that in a Charter which was supposed to convey only the territory of Mar to the then John, Lord Erskine, it was then acknowledged as a fact that John, Lord Erskine, was descended from Isabella, Countess of Mar, was her representative, and had been wrongfully deprived of his hereditary rights. Well, it might fairly be asked, if there was so ample an acknowledgment of the wrongful ousting of the Earl of Mar from this ancient Earldom, why was the ancient title of Earl of Mar not conferred on him? He (the Earl of Rosebery) confessed that, at first sight, this seemed a considerable obstacle to the prosecution of the present claim; but when they considered the course taken up to that time, nothing appeared to him more reasonable. What would have happened had Queen Mary conferred on John, Lord Erskine, the immemorial title of Earl of Mar? She would have confessed that all her Predecessors had been guilty of the grossest possible act of spoliation and injustice. She, no doubt, considered that in giving the territory of the Earl of Mar with a very high precedence, she was doing as much as she could to benefit the claimant to the title, without impugning in the most direct manner her Predecessors. But it was more than that; it was a personal matter. Queen Mary had, three or four years before, given the title to her half-brother, the Regent Moray; and if, after four years, she had conferred this title on John, Lord Erskine, she would be impugning her own honour, dignify, and fair dealing. He would say, then, on these three points, which seemed to him the main points of the Preamble, there was a primá facie case for the measure he had now the honour to lay before their Lordships. But, in dealing with the matter, not of evidence or proof, but of the desirability of settling a question which had assumed a range much larger than ordinary Peerage questions, they must have some regard to what had formerly been done in the matter. He would not lay one iota of stress on popular feeling as constituting evidence; but it did make it most desirable that they should have a final and definite settlement of this question. Only in the course of last year no less than 106 Peers in their Lordships' House sent a Petition to the Queen, asking Her Majesty to restore, if he remembered right, this ancient Peerage of Mar. When so very large a section of their Lordships' House determined that there was an act of justice to be done and a title to be restored, surely it was a matter for inquiry by their Lordships. But he would cite a much graver proof than that of the possibility of doing something in this matter, and even of passing the second reading of the Bill. Their Lordships had recently lost from among their midst a great man, whose reputation was not confined to either side of the House, but was the common property of the House—he meant the late Earl Cairns—who had been a Member of that Committee of Privileges which adjudicated on this point. The Government had been so fortunate as to have been able to submit this Bill to Earl Cairns not long before his death; and they received assurances, which he (the Earl of Rosebery) was at liberty to make use of, of the willing and learned support which he would have given to this Bill. That would, no doubt, outweigh any considerations which he could himself advance, and with the countenance and support of that great authority he would ask their Lordships to read the Bill a second time.

Moved, "That the Bill be now read 2a;."—(The Lord Privy Seal.)


in expressing his approval of the Bill, said, he was amused by the consideration that the plural of Mar made one Heathen God—Mars—whose attributes were popular with some and distasteful to others; and he thought a good deal of confusion would be avoided if the two Peers having the same name were to have double designations to distinguish them, as in the case of Lord Napier of Ettrick and Lord Napier of Magdala, whom he had been pleased to see sitting next to each other on the Cross Benches a short time ago.


said, he had pleasure in congratulating the noble Earl (the Earl of Rosebery) on the knowledge ho had displayed in dealing with the minutiae of this case. The noble Earl had made a clear and lucid statement as to the reasons for bringing forward this Bill. He thought he might say, on behalf of the Peers of Scotland, who were most interested in this case, that it was not their intention to oppose the second reading. The noble Earl said that the Bill had been introduced in accordance with the practice in such cases. 60 years ago there was a case, which, however, was not quite parallel, because its object was to reverse the attainders of three titles. In his opinion the Bill, as now introduced, was quite unprecedented. On a former occasion ho had opposed a Motion upon this question; but, although he had done so, he would have been glad to see the historical title of the Earldom of Mar restored, if it was done in a proper and definite manner, and he was of that opinion still. In any action which he had taken on this question, whether in the House or elsewhere, he had had but one object—namely, the maintenance of order at the elections of Representative Peers at Holyrood, the maintenance of the Prerogatives of their Lordships, and also of what he considered to be indirectly the Prerogative of the Crown. Ho thought that some of the procedure adopted by those who were anxious to see this ancient title restored had, to some extent, affected all three of those conditions; but he would make no objection whatever to the second reading of the Bill, with one reservation—namely, that the Bill be referred to a full and impartial Committee for proof of the Preamble. The Bill was chiefly Preamble, and in the interests of the nobility of Scotland—the old nobility of Scotland—all he asked, and all he thought any Peer of Scotland could ask, was that that Preamble should be proved in all its details. A Committee capable of going into all those details—technical, genealogical, and historical—should be appointed: and if those details, as con- tained in the Bill, were proved to the satisfaction of such a Committee, he was sure the House would approve of the Bill. He would hail, with much gratification, any measure of this kind which would put a stop to an agitation which had not been conducted without raising strong feeling on both sides.


said, he and those who had acted with him in this matter had never doubted the decision of the Committee. What they had objected to was the attempt to put a new Peerage in the place of an old Peerage. He quite agreed with the observations of the noble Marquess (the Marquess of Lothian), except as to his remark that the Committee ought to see the Preamble of this Bill proved. It would not be possible to exactly prove every historical point in this case. In many instances Scottish Peers had no Charters to show. They must, therefore, deal to a great extent with contemporaneous documents, and with the historical literature of the past. What they wished was, that a Committee should take evidence on the subject and report to their Lordships. He hoped, however, to see the Bill passed, as he believed it would settle a long-standing grievance, and the differences which had existed on what was really, in his opinion, a legal point. It would restore to a Scottish Peer an honour which was his due; and he was convinced that Her Majesty would have no more loyal subject than he who should receive back the title of the unfortunate Nobleman who raised the standard of rebellion on the braes of Mar.


said, he was glad to perceive the unanimity which appeared to prevail among their Lordships as to this measure. It would be in the recollection of their Lordships that since the decision of the Committee of Privileges in the case of the Earldom of Mar and Kellie he had uniformly supported the decision of that Committee. He had deemed it his duty, without any reference to any individual opinion ho might have entertained on the legal questions which were before that Committee, to support to the best of his power the authority of their Lordships' House and the decision arrived at by a competent and impartial legal tribunal. Ho feared that the course he had thought it his duty to take on some occasions with reference to this matter might have been misinterpreted, as if he were unfriendly to the noble person—for so he might now call him—who was the claimant. He could assure their Lordships that at no time had he been actuated by any feeling but that of strong personal sympathy for that gentleman in the position in which he was placed; but he thought it was his duty, and their Lordships' duty, to uphold the decision arrived at by a Committee composed of men than whom none were more competent—men of unquestioned uprightness, against whom there could not be the slightest suspicion of partiality. When he mentioned that the late Lord Chelmsford, Earl Cairns, and his noble Friend at the Table (the Earl of Redesdale) concurred in that decision, he had said all that was necessary—if, indeed, it was necessary to say anything—to show that it was a Committee whose decision was entitled to the utmost respect. This Bill proceeded on the assumption of the validity of that Committee's decision, and reserved the rights of the Earl of Mar and Kellie; and therefore it was that he was able to approve it, and to advise that it was a Bill that could properly be presented to that House on the authority of Her Majesty's Government. He thought those who had studied the question would agree with him that the reason why this restitution had not long since been made in due course of law was probably this—that the effect of what was done in 1565 had been but imperfectly understood, and it was believed that, in point of fact, the old Earldom still continued to be in existence. Great authorities had continually placed on record their belief that it was not extinct; and Sir Robert Peel, in 1824, when he moved in the House of Commons the second reading of the Bill for its restitution, expressly spoke of the Earldom he was then restoring as by common consent one of the most ancient in Scotland. All the circumstances carried on the belief that the Earldom existed until the death of the Earl, on whose death the controversy arose. Then there arose the question as to whether the male or the female line should be preferred, and that was the only point on which Earl Cairns appeared to have any doubt. But he waived that doubt on considering an opinion expressed by the lawyers of the last century—that the presump- tion as to Scotch Peerages was in favour of the male line. He considered that the circumstances of this case were peculiar, and that the restitution proposed by the Bill was fully justified; and he therefore supported the Bill.


said, he would venture to address a few remarks to the House on this Bill, because he did not consider it to be a question which was entirely free from very grave doubt. He did not believe there ever had been a proposition before to restore a title by Act of Parliament when a question arose as to the existence of that title, except in the case of a reversion of attainder. He believed that restitution hitherto had always been effected on an unquestioned title; whereas the Bill before the House actually stated that a certain amount of doubt existed. He thought there was considerable danger in establishing a precedent and bringing in an Act of Parliament to determine and settle a title; and, so far as he was aware, it had never been done before, as it was contrary to the whole principle of the Peerage.


said, he thought that, considering the fact that he had frequently brought this matter before the House, his thanks were due to the noble and learned Earl on the Woolsack, for having advised Her Majesty to give her special direction that this Bill should be brought to their Lordships' notice and favourable consideration. His noble Friend the Chairman of Committees (the Earl of Redesdale) and he (the Earl of Galloway) had had a very long correspondence some years ago on this subject, and he was afraid that neither of them had changed his opinion. His noble Friend would make this one very great mistake. He would confuse two Charters; and the difference between these two Charters was simply this—that the Charter dated August was utterly invalid, because it did not receive the confirmation of the Sovereign of Scotland at the time; whereas the Charter of the following December did receive that confirmation, and was consequently valid. He thought the proposal to refer the question to a Select Committee was a, remarkably wise and prudent one, and ho was sure their Lordships would have great satisfaction in performing this act of justice.


said, he was glad to be able to give expression to the feeling of satisfaction he experienced when he heard that a Bill dealing with this matter had been brought in. It appeared to him that an unintentional injustice had been done to a Peer of Scotland, and to the Peerage of Scotland, and he was glad to see that the matter was about to be set right. He hoped that it would be read a second time, that it would pass successfully through Committee, and that a third reading would be taken.

Motion agreed to; Bill read 2a; accordingly, and referred to a Select Committee.