HL Deb 16 July 1888 vol 328 cc1355-73

said, he rose to call attention to the Order of the House of February 26, 1875, by which the Earl of Kellie was granted the privilege, at each succeeding election of Scotch Peers, of answering to the title of "the Earl of Mar according to its place in the Roll of Peers of Scotland;" also to the provisions of the Earldom of Mar Restitution Act of 1885, whereby the right of the owner of that title from the date of the death of his uncle in 1866 was confirmed; and to move to resolve— That, in consequence of the rightful owner of that title 'in the Roll of Peers of Scotland' having had that right confirmed by Act of Parliament in 1885, the said Order of 26th February, 1875, be hereby rescinded and expunged from the journals of the House. An apology was due to their Lordships not for his Notice, but for having waited two years. He had, however, been under the impression that upon the passing of the Act of 1885 an order had been sent to Holyrood on the subject which had the effect of rescinding the erroneous Order of 1875, and he had only recently discovered that such was not the case. But in order to explain the present position of matters dealt with in his Notice it would be necessary (a) to state the contention of the claimant to the Mar Peerage from 1867 to 1875; (b) the conclusion arrived at by the Committee of Privileges and the special ground upon which it decided in 1875; and (c) the Order sent in consequence. The contention of the claimant—and of his father between 1867 and 1871, the date of his death—was that the old Earldom on "the Roll of Scottish Peerages" had become extinct, and that a new Peerage had been created in 1565 by Queen Mary. The Committee of Privileges decided in 1875 that— The ancient Peerage must have become extinct in some way or other, and that a new Earldom of Mar must have been created in 1565 by Queen Mary, although there was not a tittle of evidence to prove it. These were the words used by Lord Chelmsford, who gave what was generally termed judgment. But here it was necessary to read from the Journals of the House the exact words of the decision and the Order given by the House immediately following it to show how entirely irrelevant to the finding was that Order (after having already noticed the contention on which the claimant grounded his petition). Having read a long extract from the Journals, page 42, February 26, 1875, the noble Earl said that the claimant was here decided to have a right to a Peerage not existing on the authentic Roll of Peerages, &c., and was then ordered to answer to a Peerage on that Roll. He must be permitted to refer to the mystery attaching to the composer of that Order. In the first place there was indecent haste. It was sent the same night to Edinburgh, without the Queen having seen the decision, and therefore was not confirmed as legally required. Whose doing was it? He had tried often to find out, but it was supposed now to have been composed by one Mr. (now Sir) W. Fraser, known in Edinburgh by the sobriquet of the "Earl-maker." He had not himself the honour of that gentleman's acquaintance, although he had received one or two letters from him, but he now, although not at that time, held an official position—that of Deputy Clerk of Registers. He believed that gentleman had had access to many Peers' charter chests—it was supposed to the regret of some. But that was a digression. Whoever was responsible, this Order was illogical, directing, as it did, one who had claimed and been found by the Committee of Privileges to have made out his claim to a Peerage not on the Roll, to answer to an ancient Peerage on the Roll. It was sent without the Queen's sanction or knowledge to Edinburgh, and was taken advantage of subsequently notwithstanding the innumerable protests of peers at successive elections against its validity. And so matters continued until 1885. Resolutions and other steps of various sorts were taken in that House bearing on the question between 1875 and 1885. By degrees the knowledge of truth on the whole subject became more generally known, which in 1884 culminated in a Petition to Her Majesty, signed by 104 Peers, praying that the injustice which had been suffered by the inheritor of the ancient historic Earldom of Mar might be redressed. Her Majesty lost no time in dealing with the matter, and the following year a Bill was brought in under Mr. Gladstone's Government by the noble Earl opposite (the Earl of Rosebery), and was referred to a Select Committee. Mr. Gladstone's Government having gone out of Office, the Bill was taken up by the Government of the noble Marquess, and it passed both Houses. The attitude and actions of the late Lord Cairns in this matter required special notice. As Lord Chancellor Lord Cairns in 1875 sat on the Committee of Privileges in this case, and acquiesced in Lord Chelmsford's judgment, Lord Redesdale, the only other Member, having also agreed. It was stated by the noble Earl opposite (the Earl of Rosebery), in introducing the Bill in 1885, that Lord Cairns before his death fully approved of its introduction. The claimants from 1867 to 1875 never claimed a Peerage on the "authentic Roll of Peers of Scotland," but they claimed an Earldom of Mar, supposed to have been created by Queen Mary in 1565, on the ground that the Earldom of Mar in its place on the Roll had become extinct. What was the object of the Act of 1885? Simply to prove that this Peerage was not extinct, and that the present owner had inherited it direct from his late uncle, the Earl of Mar, and lineally from his progenitress, Isabella, Countess of Mar, who died in 1407. He thought he had now shown—first, that the claimant of the Earldom of Mar from 1867 to 1875, before the Committee of Privileges, never claimed the Earldom "on the authentic Roll of Peerages of Scotland;" secondly, that his claim to the Earldom of Mar, supposed to have been created by Queen Mary in 1565, was made distinctly on the supposition that the ancient Earldom of Mar "on the authentic Roll of Peerages of Scotland" had become extinct; and, thirdly, that the Committee of Privileges in 1875 reported that he had made out his claim to an Earldom of Mar, supposed to have been created by Queen Mary in 1565, on the distinct grounds that the ancient Earldom of Mar "on the authentic Roll of Peerages of Scotland" "must have become extinct in some way or other." That was the state of things in 1875, and even at that time on what possible ground could the claimant be entitled to answer to the ancient Earldom of Mar on the authentic Roll of Peerages of Scotland? What, then, had the Act of 1885 done? It had silenced every doubt. The Committee of Privileges in 1875 came to the erroneous conclusion that a historic Earldom on the authentic Roll of Peerages of Scotland must have come to an end in some way or other, and that a new Peerage had been created by Queen Mary in 1565. But the very fact of Lord Cairns having approved of the introduction of the Bill of 1885 refuted that, and the learned Earl must himself have come to that conclusion, for the judgment in which he concurred in 1875 and the special grounds upon which it was based were practically upset by the Act of 1885. The Act enacted that the doubts as to the survival of the ancient Peerage were entirely cleared away, and made it indisputable that the present was the holder of the ancient Earldom on "the authentic Roll of Peerages of Scotland," descendible to his heirs in the same manner as heretofore from Isabella, Countess of Mar, in 1404. It, therefore, seemed to him that it was only just to posterity that an Order made under an erroneous impression and since rectified by Act of Parliament in 1885 should be at once rescinded and expunged from the Journals of the House. He begged to move the Resolution that stood in his name.

Moved to resolve— That, in consequence of the rightful owner of the title of Earl of Mar in the Roll of Peers of Scotland having had his right confirmed by Act of Parliament in 1885, the order of this House of the 26th of February, 1875, respecting the Earl of Mar be hereby rescinded and expunged from the Journals of the House."—(The Earl of Galloway.)


said, he supposed that the noble Earl thought that some useful purpose would be gained by bringing forward this Motion, though it was difficult to understand what that purpose could be. It was a matter for surprise, and also for regret, that the Act passed in 1885 should have been ineffectual to prevent the revival of this question, which it was the object of that Act to settle. With regard to this matter, he had always felt it his duty to firmly maintain the authority of the tribunal that had inquired into this question, and of this House which had acted through that tribunal. This House, according to the invariable practice, had referred Lord Kellie's petition, claiming an Earldom of Mar, to the Committee of Privileges, and that tribunal was as much the proper tribunal for such an inquiry as were the Courts of the Realm for inquiries as to the title to property. He could not understand, therefore, how anyone could fail to see that if the principles of law and order were to be maintained in this House, they involved submission to and acquiescence in the decisions of the authorized constitutional tribunals. Opinions might, he did not deny, vary as to the merits of this or that decision, but when a decision was given it ought to be accepted. In cases that came to their Lordships' House on appeal from English, Irish, and Scotch Courts, he sometimes differed from the majority of those who heard such appeals, but when the decision was given he accepted it as final and binding in law. The question, whether the Earl of Kellie was entitled to the Earldom or an Earldom of Mar was referred to the Committee of Privileges. The noble Earl, recognizing the maxim De mortuis, had abstained from casting any reflection on the noble and learned Lords who constituted that Committee. They were three as honourable men as ever sat in this House, two of them of great learning and experience in law—one, whose name had more than once been mentioned by the noble Earl, as excellent a lawyer as he was excellent a man. Few Lord Chancellors would rival the fame and reputation of Lord Cairns. The Committee were unanimous that from the evidence before them the just inference of law was that an Earldom of Mar had been created by Queen Mary of Scotland in 1565, and that that was the only Earldom of Mar upon the Union Roll of Scotland then and from that time forward. Earl Cairns said that it appeared to be obvious from all the evidence that before 1565 there was no title of Mar in existence, and he never retracted that opinion, although he concurred in the justice and reasonableness of the Act of Restitution which Parliament subsequently passed. When he (the Earl of Selborne) proposed that measure he had not the most remote intention of casting any reflection upon the manner in which justice had been administered by Lord Cairns, Lord Chelmsford, and Lord Redesdale in 1875. Nor, did he for a moment intend it to be supposed that the Act of Restitution involved a nullification of the decision of the Committee of Privileges, adopted by their Lordships' House. Whoever had assisted the noble Earl is drawing up the Notice on the Order Paper had fallen into a singular error in saying that by the Restitution Act of 1885 "the right of the owner of the title of Mar from the date of the death of his uncle in 1886 was confirmed," for the Act did not contain a word of that kind. Now, it followed of necessity, from the view taken by the Committee of Privileges in 1875, that all the Earls of Mar who had sat in the Parliament of Scotland or in Parliaments of the United Kingdom from 1655 downwards had sat by right of the Peerage created in 1565. The Peerage on the Union Roll was, in the opinion of the Committee of Privileges, the Peerage which Queen Mary had created, and it was, therefore, a matter of course that Lord Kellie, like all his ancestors before him, should be called upon the Roll by the only Earldom of Mar mentioned in it, whether the place which it occupied upon the Roll was right or not. He was of opinion that there was no ground for expunging from the Journals of the House an order properly made and necessarily consequential upon the final decision in respect to that Peerage. The Order which the noble Earl sought to have expunged was absolutely right at the time when it was made; and though the precedence upon the Roll was now regulated by the Act of 1885, and not by that Order, this had been done for the purpose of putting an end to all improper disputes, and it could not possibly be a reason for now expunging that Order. There were people who did not seem to understand that a man could be impartial, and have no other object in view than the discharge of his duty to the House and to the country. They seemed to think that because a man had striven to discharge his duty he could not have had the feeling which he ought to have had towards somebody else. Acquiescing, as he did, in the decision of 1875, he had yet thought it right, and it had been a pleasure to him to assist in passing the Restitution Act, but he did so without prejudice to the sanctity and integrity of the law, to the authority and jurisdiction of their Lordships' House, and to the firmness and stability of the rights which had been adjudicated to one of the parties to this controversy. Holding the same views now, and acting upon the same principles, he advised and recommended their Lordships to reject this Motion, and to do nothing which would cast a slur upon their own past administration of justice.


said, that the opinion of the noble and learned Earl would carry great weight; but facts were stubborn things, and if a Committee of Privileges of that House had made a mistake, that mistake ought to be corrected. The reply to the assertions now made was that Her Majesty had given a new Peerage, which entitled the owner to sit as a Peer of modern date. If for some state purpose, for some reason of policy, the noble Earl and his Friend had agreed to accept that result, there must have been many in the House who would have objected to the new Peerage carrying ancient rank. There was no question but that a grievous error had been committed, and the only Earl of Mar who was entitled to sit in the House by that title was his noble Friend near him. There was no weak link in his case; the genealogy of the whole family was perfectly well known. The only question was whether there were two Earls of Mar or only one. There was not the slightest evidence to go before a jury in favour of the modern claimant, upon whom the onus probandi must rest. A Committee of Privileges was not a Court of Law; it was only a Committee of investigation. In this matter a grave injustice had been done, and sooner or later it would be corrected. The noble Lord beside him would not rest satisfied with things as they stood, and he ought not to do so. The noble Earl's opponent, if deprived of the title of Earl of Mar, would still sit as Earl of Kellie. It was a mere question whether there were two Earls of Mar; it was an impossibility that there could be two. He hoped the noble Earl would divide the House; and he might do so in confidence that the number of his supporters would increase year by year.


said, the noble and learned Lord had insisted upon the maintenance of law and order; but what had been done in this case was utterly destructive of law and order. The effects of the Order of 1875 continued to prove most detrimental to him. The Order enabled his opponent, Lord Kellie, for 10 years to vote in right of the title of Mar, which the House did not give him, which he had not claimed, and which was at the time in his own legal possession. Under this title his ancestors voted, and on the death of his uncle he, as the heir, voted for eight years previous to his opponent's appropriation of it, and in right of it he sat and voted in the House. The effect of that Order with regard to his rights had been to interrupt his privileges as a Peer for 10 years, and it was still injurious to him as regarded his claim to property. His uncle, the late Earl of Mar, succeeded to and held the Peerage and estates of Mar through his father, grandfather, and great grandmother. Some years after he had succeeded to the Earldom and estates of Mar he claimed the Kellie title, which was in abeyance, as a remote heir male of a former Earl of Kellie. There had been a good deal of misunderstanding in consequence of the union of the Earldoms of Mar and Kellie. In reality they had nothing to do with each other, for the Kellie title was one limited to the Erskine family and their heirs male. The Earldom of Mar was one totally independent of Erskine heir-ship, and was held through female succession. The name of Erskine was introduced into the Mar family simply by marriage with the heiress of Mar. Consequently, on the death of his uncle he inherited the Earldom of Mar as his nearest heir through his mother, and adopted the usual forms competent to all Scotch Peers, while Lord Kellie, father of the present Earl, took up the Kellie title in the same way precisely. A few months after they had each succeeded to their respective titles, Lord Kellie intimated that he was going to claim an Earldom of Mar, which he alleged had been created for the Erskines and their heirs male, contrary to the succession in the ancient Earldom. He accordingly presented a Petition to the House to be declared entitled to that Earldom, which he alleged had been created in 1565. This House, by adopting the Report of a Committee of Privileges, set up for his opponent (Lord Kellie) a new title of Mar, which was unrecorded, and could not be discovered; the consequence being that the House passed a Resolution thereon, which was made to appear double-edged through the effect of the Order which their Lordships were now asked to rescind. The Report on his opponent's claim made by the Committee for Privileges constituted the whole of the judgment which had given his opponent, Lord Kellie, the privilege of calling himself Earl of Mar. Lord Chelmsford said (page 7 of the official judgment)— The grantee must have obtained the dignity in some way or other. The question arises, when and how did this creation take place? There is no writing or evidence of any kind to assist us. He must have been created an Earl, and probably by a ceremony called 'belting.' Lord Redesdale (page 14) said— I am of opinion that the Earldom was a new creation, and probably by Charter. Lord Cairns (page 16) observed— It is clearly made out that the title of Mar, which now exists, was created by Queen Mary. The opposing petitioner (himself) is able to do nothing more than to make suggestions, and put forward surmises, and there is absolutely nothing which can be taken to be evidence in any way countervailing the primâ facie presumption with regard to the ordinary descent of the title created as this title was created. Those sentences contained the whole Report made to the House after eight years' inquiry with regard to Lord Kellie's claim to a new Earldom of Mar. One of the noble Lords imagined the creation to have been effected by "belting;" another noble Lord thought it might probably have been by Charter; Lord Cairns said— It is to take the ordinary descent of a title created as that title was created, without telling them how, when, and where; but though those three noble Lords were none of them able to tell how, when, and where this title was created, they candidly admitted that they had arrived at their conclusion or presumption "without writing or evidence of any kind to assist them." Lord Cairns observed that he had been "able to do nothing but put forward surmises and make suggestions." Those surmises and suggestions consisted of Royal Charters, Acts of Parliament, and decrees of the Court of Session, and of evidence of the most weighty description, and proved to the satisfaction of all the learned Lords in the Kingdom his right to the ancient dignity of Mar before the Select Committee in 1885, preliminary to the passing of the Act of justice which gave him nothing but merely a bare and tardy recognition of his hereditary rights. On those three observations their Lordships' House passed the following resolution:— That Walter Henry, Earl of Kellie, hath made out his claim to the honour and dignity of Earl of Mar in the Peerage of Scotland, created in 1565. Lord Chelmsford remarked— Whether the original dignity" (the dignity he held) "was territorial or not or was or was not descendable to females is wholly immaterial, inasmuch as it had in some way or other come to an end more than a century before Queen Mary's time. On those three observations their Lordships passed the Resolution that Lord Kellie had made out his claim; and the very next day the Order they were discussing was issued that he was to vote under the ancient Earldom of Mar through female descent. If it were not an indignity to the House of Lords that the Earl of Kellie should have been conceded a non-existent Peerage "without writing or evidence of any kind" it would be amusing to observe that, while Lord Chelmsford declared in his judgment that the ancient Earldom of Mar had "come to an end in some way or other," yet on the very next day the House made the Order that Lord Kellie was to vote in right of the ancient Earldom, which was the only Earldom of Mar in existence. If it had not been there his opponent could not have usurped it, and thus the fact would have been exposed at once that Lord Kellie's alleged Earldom of Mar had never been found in the Peerage of Scotland. The Order which they were asked to rescind was not the natural result or consequence of the Resolution of their Lordships' House but it was in direct contradiction to it. Their Lordships had found Lord Kellie entitled to an Earldom of Mar created in 1565 for the heirs male of the Erskines, and they straightway ordered him to vote in right of an ancient title he had not claimed, which was in his own legal possession, which stood on the Roll in right of female descent, and which derived nothing through Erskine blood or heirship. Why, then, this anomaly? It was the result, not of the Resolution of their Lordships' House, but because that Resolution had been arrived at, not by the due consideration of any evidence, but by the few observations of the Members of the Committee for Privileges, unsupported by any evidence, and these observations could not call into existence a Scottish Peerage. The three noble Lords who tendered those observations to this House, as the result of eight years' inquiry into evidence, were no longer living; but he would quote the words of the Earl of Mansfeld in his place in this House on July 9, 1877, when there were 160 Peers present, including the three noble Lords who formed that Committee. He said— There is not a scrap or tittle of evidence of this new creation. There is no patent or document of any kind to prove that there ever was that creation. The noble Lords who wrote that judgment must have taken great pains with it, because to give a judgment when all the facts are against you must be a difficult thing to do. He submitted that a Resolution of this House, founded as it was on groundless observations, could not call into existence a Scottish Peerage. An Act of Parliament could not call into existence a Scottish Peerage, and even the Crown could not create a Scottish Peerage. Now, what effect had that Order on his rights and on his opponent (Lord Kellie's) both as regards dignity and property? In consequence of that Order, this House had denied him his privileges as a Peer for 10 years, while it enabled Lord Kellie to appropriate his Peerage, and it had been detrimental to him (the Earl Mar) in his claim to property. He disclaimed that he asked this House, in its deliberative capacity, to interfere in the estates matter, which properly belonged to the jurisdiction of the Law Courts; but he submitted that this House, by means of the Order their Lordships were now asked to rescind, had stepped in between him and the Law Courts, and had prevented his urging, as a Peer, his contention that these Mar estates were entailed on the Peerage of Mar which he had inherited. There was a common prejudice in favour of heirs male, and Lord Kellie was the heir male of the Erskine family, through a certain Mr. James Erskine. Though Lord Kellie was heir male of the Erskine family, he was obliged to abandon that position in his claim to the estates, for he claimed them as the heir male of a woman (a certain Lady Frances, in 1739), through the younger branch. Now, Lord Kellie, as the heir male of this lady through the younger branch, could not hold any dignities whatever in that line of succession, for no dignity limited to heirs male could pass through a woman, nor could he hold any that passed to the nearest heir, like that of Mar, because he was not the nearest heir, he was the heir male of that lady through the younger branch; he (the Earl of Mar) was her nearest heir through the eldest line. Therefore, Lord Kellie was contending that these estates were entailed on a line of persons who must, through that succession, be Commoners. He, as Earl of Mar, was holding the Earldom of Mar through female descent, through that lady, his great great grandmother, who held the estates to the exclusion of the heirs male of the family, and he was claiming the estates in the same line of succession precisely as that in which he held the dignity of Mar, and there was a special provision in the entail, twice repeated, that under the destination all the heirs, as well male as female, who succeeded under the entail of the estates, should carry the honours and arms of Mar, should they be restored, and they were restored in right of that lady, in 1824, by Act of Parliament. Their Lordships would now see his position. He was laying his contention and his pleadings on the reasonable contention that his family had entailed the Mar estates on the Earldom of Mar. His opponent was laying his contention on the extraordinary grounds that, while he was obliged to admit that the heirs male had denuded themselves and postponed themselves and their heirs to the female heirs who held this estate, they did this for a certain time, in fact, until it suited his opponent to destroy the Earldom of Mar in order to take the estates. That after that they entailed them on a line of Commoners, to the exclusion, not only of the heirs male, but also to the exclusion of the nearer heirs holding the Earldom of Mar. Now, it was as much his right by inheritance to stand before the Courts of Law as Earl of Mar, and to plead in that position, as it was for any of their Lordships to plead for their rights as Peers. Late last Session he asked this House by Petition to examine the entail of the Mar estates, in order to satisfy themselves of the extent of detriment he had suffered with regard to property in consequence of the refusal of this House for 10 years to recognize his position as a Peer; but he had not repeated that request, because he had published the entail of the Mar estates in full, and it was now public property, open to every lawyer in the land, and to anyone who chose to read it, together with an account of the proceedings with regard to the Earldom of Mar during these last 20 years. Finding that his opponent kept his claim to to an Earldom of Mar going on year after year, his legal advisers thought it better that, though his opponent's claim to an Earldom of Mar was still pending, he should at once claim those estates, in order that the Earl of Kellie might not remain any longer in undisputed possession of them. Accordingly, in 1873, he brought his case before the Court of Session, and his contention was that the Mar entail was one on the Earldom of Mar. To his surprise his counsel was told that he should not plead as Earl of Mar but as a Commoner, and yet this was before any decision had been given in answer to Lord Kellie's claim. This occurred while he was voting at Holyrood as a Peer, and he was received by the Queen as Earl of Mar. Thus the Court of Session had, without any authority, treated him as a Commoner, to his great detriment in his pleadings for the Mar estates. To make a long story short, an Act of Parliament was brought forward to remove any doubts as to the ancient Earldom. It was a most extraordinary document. There was this provision in it, that— Nothing herein contained shall affect the right of the said Earl of Mar and Kellie or any other person to any land or heritage. He made minute inquiries from various legal authorities as well as of the Peers, and he was told that this provision had no weight either for or against his opponent, or against himself, or any other person as regarded property; the Act dealt only with the dignity. Had it affected a question of property in any way, he asked whether it must be considered a prejudice to the right of his opponent that he (the Earl of Mar) should exercise the right enjoyed by every Peer and every British subject of standing before the Courts of Law in his true position? If that were considered a prejudice against Lord Kellie then nothing could demonstrate more clearly the wrong which was still sustained by him—the Earl of Mar. This Act of 1885 concluded with the following provision:— That the Earldom of Mar, now vested in the said Walter Henry, Earl of Mar and Kellie, shall be called at all such elections in the place and order properly belonging to an Earldom created in the year 1565; anything in the Decreet of Ranking made on the 5th day of March, 1606, by commission issued by James the VI., then King of the Scots, to the contrary thereof notwithstanding. Now, this Decreet of Ranking was drawn up in 1606 by order of the King under a Royal Commission, and had regulated the proceedings of the Peers ever since. The alleged creation of Mar of 1565 was at this time only 40 years old; if it was by Charter the ink was scarcely dry; yet, though every other Peer of Scotland and every other creation by Queen Mary was to be found in this Decreet, this alleged new Earldom of Mar was not to be found there. On this Decreet of Ranking was founded the Union Roll, which was accepted at the Treaty of Union as the "last Roll of authentic Peerages of that part of Great Britain called Scotland." All the Peers of Scotland vote in right of Peerages and in right of that precedence, but his opponent's (Lord Kellie's) position was, indeed, unique. He, on the contrary, voted not in right, but in spite, of this Decreet of Ranking, which in plain English meant "the Union Roll notwithstanding." Could any proceeding, he asked, be more irregular, more unconstitutional than this? Since 1875 he had had to struggle against might for his rights in the most unprecendented manner. Those rights were not denied him in consequence of any decision of any Law Courts, but they were denied him arbitrarily and without any authority, simply for the convenience of his opponent, and to hide the fact that this House had granted him a non-existent Peerage. At length, in 1883, the noble and learned Earl (the Earl of Selborne) brought forward a Bill entitled the "Representative Peers (Scotland) Bill." This Bill was brought forward to throw aside the Decreet of Ranking and the Union Roll, which was a list of Peerages, not of Peers, and which had been used ever since the Union. The Bill was introduced to make a list of individuals Peers entitled to vote, which was to be under the direction of the Lord Chancellor. Protests were not to be allowed to be made against any person who had been found entitled to any existing (or non-existing) title by a Committee for Privileges. When the Bill was minutely examined it was discovered that it would adversely affect one person, and one person only—namely, himself. Notwithstanding this, that Bill passed this House; but the Peers became aware towards the end of the discussion that a great injustice was really contemplated to the Mar family, which was the raison d'être of the Bill. Consequently 81 Peers signed a protest against that Bill on the ground that it was an Act of individual injustice, and the Bill was accordingly withdrawn. Now, he had gone through these phases in the weary struggle that he had endured, under severe condemnation, to preserve from extinction the ancient honours of his family, and he thought he might say, to prevent an unwarrantable interference with the rights and privileges of the Scottish Peerage. It was said that it would be unprecedented to review or investigate a Report of a Committee for Privileges; but he submitted that it was unprecedented that a Peer should have been denied his rights by this House for 10 years. It was unprecedented that this House should have ordered his opponent, Lord Kellie, to vote for years in the place of a Peerage he did not possess or claim, and which belonged to another man. He earnestly asked their Lordships to investigate his statements, for investigation only could elicit the truth; whereas, to refuse to investigate the matter was to put the House of Lords in the undignified position of supporting and clinging to what was universally known to be a fiction, and which he, suffering from its effects, ventured to denounce as a flagrant injustice.


said, he did not wish to interpose for a moment between the House and a Division on this interesting question; but he did ask the House to be a little cautious as to what they were going to do. The Motion in itself was not a very mischievous one; it only sought to rescind an Order of their Lordships' House which had perhaps no particular merit in itself, and, indeed, the debate would have been mainly an academic one had it not been for the very interesting revelations of the noble Earl who had just spoken and the noble Baron who had preceded. What they were asked to do was not merely to rescind a Resolution of the House in order to make the proceedings of their Lordships more dignified or consistent. That was not the point; what they were asked to do was to declare that there were not two Earls of Mar, whereas three years ago they had solemnly declared that there were, and also to assist the noble Earl in certain proceedings which he proposed to take in order to recover estates which he alleged to belong to him. Now, he (the Earl of Rosebery) was not a lawyer, and he did not know whether these estates belonged to the noble Earl or not; but of this he was certain, that, in spite of what the noble Earl said, there were two Earls of Mar, and that by the very Act of Parliament which had given the noble Earl his seat among them. Had it not been for that Act the noble Earl could not have made that speech to their Lordships. By that Act the rights and privileges of the Earl of Mar and Kellie, who, with what he considered rather questionable taste, had not been given his full title in this debate, were fully reserved. The Order of 1885 might have been a wrong Order, and it might be wiser to rescind it, but that was not the question that came before their Lordships at that moment. The issue was an infinitely wider and broader one; they were called upon to declare that an Act of Parliament passed three years ago was in itself absolutely futile and erroneous, and they were asked to do this in the absence of the noble Earl, who had not opposed that Act because his privileges were not touched by it. There was nothing absurd in the idea of there being two noblemen beating the same title; there had been two bearing the title of Leicester, and he believed there were two who bore the title of Hamilton, and in the Statute Book there was an enactment declaring that there were two Earls of Mar. He hoped, therefore, that their Lordships would pause before they committed themselves to a policy which might have very far-reaching effects.


said, he hoped their Lordships would not yield to this Motion. He had himself been one of those who, when the noble Earl had first addressed their Lordships, had assisted in the investigation of the Committee, and his sympathies had been throughout the whole of that investigation very much in favour of the noble Earl. But the question now before their Lordships was a totally different one from that which they had had to investigate upon that Committee. As he understood it, the noble Earl threw by altogether the Act of Parliament under which he now sat. There was nothing of which he was aware to prevent the noble Earl from now proceeding by a fresh Petition before the Committee of Privileges. The decision of the Committee was not a conclusive judgment, acting as a bar, as in some procedure; the noble Earl could present a Petition to-morrow asking to be heard by the Committee of Privileges, and he might proceed, if possible, to establish his title. He did not suggest this by way of recommendation, because probably the same difficulties would arise as had arisen previously; but he was only pointing out to their Lordships that, instead of proceeding by the ordinary and regular course, they were asked, by the Motion before the House, to rescind a Resolution which in itself was but the corollary of the former decision. It seemed to him that nothing could be more undesirable than to establish such a practice. If they did it in this case every unsuccessful claimant to a Peerage would raise the same question before their Lordships' House at large without going through the ordinary course. If the noble Earl was advised that he had any such rights as those which he claimed, he ought to appeal to their Lordships' House by Petition; although he could not encourage him himself, it was legally competent for the noble Earl to do so. The House at large was not the proper area for such a question to be fought out. He would ask their Lordships which of them had been able to follow the allegations as to whether the proceedings of the Committee of Privileges had been well founded or not? In the Act passed three years ago there was a most express reservation of every right and title enjoyed by the Earl of Mar and Kellie, and it had been expressly enacted that nothing in that Act should interfere with the rights adjudicated to him by the Committee of Privileges. In his opinion, to pass the Motion of the noble Earl would be establishing a precedent of the most inconvenient character, and he trusted that their Lordships would not accept it.


expressed a hope that the noble Earl would withdraw his Motion, because it undoubtedly mixed up the question of the two titles with the simple question of the rescinding of the Order.


said, that the debate had taken a wider turn than he had expected it would, and he thought that the special point which he had brought before their Lordships had been lost sight of. Several years ago he had moved in that House that it was incumbent on their Lordships that that Order should be rescinded. That question had been thoroughly argued at the time, and the Motion was carried, though he must admit that the question was decided afterwards upon another Motion and the Order was not rescinded. The ground of his Resolution was the Act of 1885, and he contended that it was perfectly absurd to keep this Order on the Journals of the House when by Act of Parliament it had been actually and practically rescinded. He could not see that he had proposed anything that could be subversive of law and order, as had been suggested. He was bound to say he felt some difficulty, because he had no particular object in going to a Division if their Lordships thought the Order should not be rescinded. He would withdraw the Resolution—[Cries of "Divide!"] Well, as some of their Lordships seemed to object to that course, he would take a Division.

On Question? Their Lordships divided:—Contents 12; Not-Contents 39: Majority 27.