* THE EARL OF GALLOWAY
My Lords. I rise in support of the Notice and Motion standing in my name, which is as follows:—To call attention to a document regarding the Earldom of Mar, bearing the signatures of upwards of a hundred Peers, in which they signify their opinion 'That an inquiry into the statements' [therein contained] 'would conduce to the due preservation of law and order, to the maintenance of the dignity of the House of Lords, and of the integrity of the Scottish Peerage, and to move to resolve:1107That the document referred to be laid on the Table of the House, and that an investigation be made into the merits of the facts therein stated by 'the Standing Committee for Bills relating to Law,' or by some such other tribunal as this House may direct;And that the protests made by the Earls of Mar and Moray at Holyrood on 10th January, 1889 (printed by order of this House on the 22nd February), respecting the allegation for the first time in 1875 of a fresh creation in 1565 of an Earldom of Mar, be also submitted for the consideration of the Committee, with the view of their eliciting whether such is consistent with the acceptance by this House of the Roll of the Peerages of Scotland as authentic at the Union in 1707, on which there was none but the ancient Earldom of Mar recorded;And further, that there be called to the special notice of the Committee, for their guidance, the Restoration Act of the ancient Earldom of Mar in 1824 (after its attainder in 1715), as well as the Report of the Law Officers of the Crown in 1824 upon which it was enacted, showing the position of the Earl then restored as his mother's heir;And this with the object of the whole question receiving a thorough investigation in the interests of law and order.The fact of the desire for investigation into the whole matter being signed by upwards of 100 Peers, and the course I am now pursuing have been the result of the unexpected vote in this House on July 16th, last year (1888), as to rescinding an "order" of the House in 1875, the rescinding of which was regarded as a mere logical sequitur of the Act of 1885. Hence we anticipated no opposition, and we considered that the Earl of Selborne would have been the first to uphold law and order, and to aid in rescinding the irregular "order" of 1875, which enabled the authorities at Holyrood to accept the vote of the late Lord Kellie in right of the ancient Peerage which he never claimed, to which the Committee for Privileges had not found him entitled, and to which his right had certainly not been ratified by the Crown. That order was transmitted to Scotland, without the decency of one day's respite for consideration by the House of Lords, without waiting for the assent of the Queen; and by whom or by whose sanction it was sent, no one knows. My Lords, the above facts were those which induced a certain number of Peers to protest at once, before the end of last Session, at such a vote having been taken, and to express their determination to have the question re-opened; but there was no chance of proper dis- 1108 cussion, it being too late in the Session, and thus the matter was postponed until this year. And now, my Lords, the necessity for a thorough investigation into the whole matter is still more obvious and more urgent, in consequence of the death of the late Lord Kellie. Before proceeding, it is right to mention that some feeling against Lord Mar seems to have arisen from the fact that on the late Lord Kellie's death, last autumn, Lord Mar wrote to his son protesting against his assumption of a title of Mar, and that he did this just before his father's funeral. It is but fair to explain, in Lord Mar's defence, that he was forced against his will, by the unprecedented circumstances of the case, to take that course, and not tacitly to allow the present Lord Kellie to sign his name as "Mar," even at that distressing moment, which is usually the first occasion when a Peer formally adopts his title on succession. Lord Mar expressed himself to Lord Kellie in these words—It is with regret that at this sad moment, in order to fulfil my duty to myself and my heirs, as well as to preserve the integrity of the Scottish Peerage, I have been compelled to lodge my formal protest against your assumption of an Earldom of Mar which, I maintain, has in law and in fact no existence in the Peerage of Scotland.My Lords, upwards of 100 Peers have expressed their opinion that inquiry into the statements regarding the Earldom of Mar, assumed by Lord Kellie, is necessary to maintain the integrity of the Scottish Peerage and the dignity of this House. Now, why is the dignity of this House concerned? Because in 1875 a Report was issued by the Committee for Privileges that the Earl of Kellie had made out his right to an Earldom of Mar "created in 1565" for the Erskines, and limited to their male heirs. I state, without reserve, that this Report was made utterly without foundation, and on Lord Chelmsford's (one of the Lords of the Committee) own admission in giving his judgment, in these words, "When and how did this creation take place? There is no writing or evidence of any kind to assist us."
* THE EARL OF GALLOWAY
I will answer the noble Lord's question. I 1109 have written out pretty consecutively what I propose to state to your Lordships, and for a double reason, which I hope your Lordships will easily understand. First of all, owing to a very severe accident last year, I have found that my powers of concentration of memory are not what they used to be; and, secondly, a more important reason, perhaps, is that I thought upon an important question of this kind it was most desirable that I should not say one word in your Lordships' House which might be found to be inaccurate upon conversion into print. I have, therefore, written out consecutively what I propose to state to your Lordships.
§ EARL GRANVILLE
I beg to say that it is absolutely contrary to the practice of this House, and of the other House, to read a speech. There is a passage in Sir Erskine May's valuable work, which states that in this country it has always been the practice for Peers to make their speeches, though they might refresh their memory from notes. I think the noble Lord would be introducing a very bad precedent by the course he is taking of reading a written speech in this House.
I entirely concur with what has fallen from the noble Earl, but I would venture to remind him that the Duke of St. Albans read his entire speech in moving the Second Reading of the Deceased Wife's Sister's Bill, or at least the greater part of the speech.
* THE EARL OF GALLOWAY
My Lords, I have given a special reason for this, and I hope your Lordships will kindly grant me your indulgence on this occasion, as I wish to lay before you what I have to say properly, tersely, and without introducing anything which I would rather not introduce. I hope, therefore, the noble Earl will withdraw his objection.
§ EARL GRANVILLE
I am entirely in the hands of the House, particularly after the way the noble Lord has put the matter now to your Lordships, but I must remark that the course he has been pursuing is certainly a departure from the usual practice, and I think it would be very undesirable to establish a new practice of the kind.
* THE EARL OF GALLOWAY
Then, my Lords, I will proceed using my notes, 1110 though not to the same extent as before. I venture to urge upon your Lordships that the dignity of this House is concerned in this matter, because the Report issued by the Committee of Privileges in 1875 that the Earl of Kellie had made out his claim to an Earldom of Mar, created in 1565 for the Erskines, and limited to their male heirs, was made utterly without reason. In corroboration of this I have quoted the late Lord Chelmsford's own admission in giving his judgment that there was no evidence of any kind of such creation. The truth is, there is not, never has been, and never will be, such an Earldom of Mar in the Peerage of Scotland. The consequences arising from this fact, though there is no second Earldom of Mar, appeared the moment that fiction was propounded. The dignity of this House has for years been assailed in consequence of the truth of what I assert, and what we earnestly ask to have thoroughly and impartially investigated. Now, what was the immediate result of that groundless report? Before Her Majesty's pleasure was taken, an "order" was sent that Lord Kellie should vote in the place where the Earldom of Mar on the Roll was called at Holyrood. Was that Earldom of Mar, standing on the Roll, the Peerage alleged to have been "created in 1565," for the Erskines and their male heirs, and conceded to Lord Kellie in 1875? No, my Lords, the Earldom of Mar standing on the Roll was never inherited through Erskine blood or heirship.
§ EARL GRANVILLE
I really do not like to interrupt, but the noble Lord is still going on steadily reading his speech to the House. He is reading it even now. I do not know whether we are to adopt this new system or not.
* THE EARL OF GALLOWAY
My Lords, I should be very sorry to deny that I am referring to my own notes. I have kept on doing so, notwithstanding interruptions, and I have often seen equal transgressions of the rule. I really think, after the explanation which I have made, the noble Earl might allow me on this occasion to refer to my notes, in order that I may be perfectly accurate in what I desire to say. It is very difficult for me to follow the narrative under these circumstances, and I should have thought it would have been the object of the House to 1111 understand exactly what it is that is asked. Now, my Lords, I will ask, was that the old Earldom of Mar that was standing on the Roll? That was the point at which the noble Earl interrupted me. The Earldom of Mar stands on the Roll with a precedence of over 150 years, or nearly 200 years before 1565. Moreover, that ancient dignity at that moment was already inherited on the death in 1866 of its late holder, by his nephew, who succeeded to it under the same conditions as all the other Scotch Peers, and who now sits in this House in right of it. He voted as holder of this old Peerage from 1866 up to 1875, when, in the absence of the alleged new "creation in 1565 from the Roll," it was found convenient to allow Lord Kellie to appropriate this ancient dignity. In obedience to the order of 1875, Lord Kellie was allowed for ten years to vote under this time-honoured Earldom of Mar, which he had never claimed or been adjudged, and this, too, in direct contradiction of the decision of this House, conceding him an alleged title of Mar, of a different date and origin, unrecorded and unheard of up to that year, 1875. My Lords, I call your attention to-day to these facts, because it was only after years of struggling for right that we obtained it in a small measure. Now, we ask to have the assertion sifted that there is no other Earldom of Mar than that held by the owner of the ancient Earldom of Mar, who now sits in this House as one of the 16 representative Peers. We earnestly ask you not to delay this investigation which must come sooner or later. My Lords, it may, perhaps, be said that to investigate a decision of the Committee of Privileges is unprecedented, and against law and order, but if that Committee has reported to this House that Lord Kellie had made good his right to what many of us are well aware is an unknown, because a non-existing and absolutely mythical Peerage, it has been the first to violate law and order, and it has thus placed this House in the undignified position of pretending that there is a second Earldom of Mar, when we know well that there is not, and never has been, such a Peerage in existence. The death of the late Lord Kellie, and the assumption by his son of this phantom title of 1112 Mar, render it the more imperative that this matter should now be investigated, for of course it is utterly impossible that the fiction can be permitted to be kept up in perpetuity. Now, we do not ask your Lordships to deprive Lord Kellie of an Earldom of Mar. We say that neither he nor his father have, in law or in fact, ever been Earl of Mar, for surely no one will pretend that a Committee for Privileges can create a Scotch Peerage, which, by the Treaty of Union is beyond the power of the Crown, Lords, and Commons to grant. After 1875 it was found convenient to allow Lord Kellie to appropriate that ancient dignity which he had never even claimed. I want to impress upon your Lordships that in obedience to the order of 1875 Lord Kellie was allowed for 10 years to vote as the owner of this time-honoured Earldom of Mar which he had never claimed or had adjudged to him, and that, too, in direct contradiction of the decision of this House conceding him an alleged title of Mar of a different date and origin unrecorded and unheard of until the year 1875.
§ EARL GRANVILLE
My Lords, I think the practice of this House and the House of Commons ought to be observed. It is also the practice of foreign legislatures not to allow speeches to be real verbatim. The noble Earl has stated that he must go on reading in order to be correct; but I certainly object to the noble Earl reading his speech.
My Lords, I desire to reiterate that I have seen a noble Lord read his speech without objection being taken.
§ VISCOUNT CRANBROOK
There is no doubt that the rule as to not reading speeches is imperative and is adhered to in both Houses. But I remember a case in the House of Commons in which a certain gentleman did practically read his speech, but it was done with so much care that nobody could ever convict him of doing so.
I think, my Lords, we might meet the difficulty in this way, which is not unusual in other places, by a motion that the speech be taken as read. I do not desire to make any formal motion, but I rise on a point of order, because there is one thing against which I must protest. If I am not greatly mistaken I have heard the noble Earl speak of a Member of your Lord- 1113 ships' House by a portion only of his title—as the Earl of Kellie and not as the Earl of Mar and Kellie. The Earl of Mar and Kellie owes his title to the same Act which gave to another Member of this House his title. I therefore protest against a noble Lord being called by a title which is not his.
* THE EARL OF GALLOWAY
My Lords, it is most difficult to meet these interruptions. I put it simply in this way that is for the purpose of convenience, to enable your Lordships to understand what I am bringing before the House, and the argument upon which I place the matter before it. It was only for the public convenience that I spoke in that way. Probably, the noble Earl is not aware that the late Earl of Mar and Kellie—or the late Earl of Kellie as I will still call him—was originally elected as a representative Peer of Scotland by the title of Earl of Kellie. It was afterwards that he was created or assumed the title of Earl of Mar. It is, I think, more convenient that I should refer to my notes. I have already stated over and over again that I cannot get on without them.
* THE MARQUESS OF LOTHIAN
I must protest against the noble Earl calling a Member of your Lordships' House by only a part of his title. If the noble Lord persists in referring to the Earl of Mar and Kellie as the Earl of Kellie only, I wish to correct the statement just made by the noble Earl. The late Earl of Mar and Kellie was elected at Holyrood in 1876 as the Earl of Mar and Kellie, and not, as stated by the noble Earl, as the Earl of Kellie only. I shall move that he is out of order.
* THE EARL OF GALLOWAY
It is very evident to me, my Lords, that there are a certain number of Peers in the House who wish to burke the inquiry. I have had the honour of sitting in this House for a good many years, and I have never known of any Peer being so much interrupted. Investigation will prove that Lord Mar derives no new right in consequence of the Declaratory Act of 1885, which was passed merely "to remove doubt"—doubts which were quite unfounded, cast on his right by all these unprecedented proceedings. But on the other hand, Lord Kellie derived a new right through a provision in that Act; for, 1114 observe, the decision of the Committee for Privileges being utterly without foundation, Lord Kellie could not have voted at all as holding an Earldom of Mar of 1565, simply because there is no such title of Mar in the Peerage of Scotland. He had pretended for ten years to vote as Earl of Mar, as if in right of the ancient Peerage. This he did under the bar of seventy protests at Holyrood. When that pretence was taken from him, where was he to vote? The danger was imminent that the world would find out that he had been given a mythical title of Mar. As the decision of the Committee for Privileges could not give him a right to vote, some other means had to be invented for him. The Declaratory Act of 1885 was passed solely to do justice, though only partial and tardy justice to his opponent, Lord Mar, the inheritor from his uncle of the ancient and only existing Earldom of Mar. Those who stood sponsor for the fiction—and I fear from the Amendment of which he gave Notice two days ago—notably the Earl of Selborne, invested Lord Kellie for the first time with a new right, the means of going through the form of voting as if he held an Earldom of Mar, dated 1565. Now, my Lords, the fact cannot be got over, that Lord Kellie thus votes as Mar, though he does not, and never can hold, an Earldom of Mar in the Peerage of Scotland. Why does he do this? We Scotch Peers respond and vote in right of the authentic Peerages we hold, and we deny the power even of an Act of Parliament, passed for one special purpose, to scatter the Treaty of Union to the winds, and to endow any person with the right of voting at Holyrood under a non-existing Peerage, interpolated for his convenience on election days only, but unrecorded and unheard of before 1875, causing confusion and irregularity, and utterly subversive of law and order. This needs no comment, but it needs investigation of the most thorough and impartial character, for even an Act of Parliament cannot deal with a myth. My Lords, it cannot be denied that, for ten years, this House unjustly suspended the rights of the Earl of Mar, for the benefit of the Earl of Kellie, who had been given a non-existent title of Mar, which in no way legally affected Lord Mar's right and. inheritance of the ancient dignity.
THE EARL OF ROSEBERY
My Lords, I do rise to order again. The noble Lord persists in speaking of the Earl of Mar and Kellie as the Earl of Kellie. The noble Lord has no right, in referring to a Member of this House, to deprive him of a title which has been adjudged to him by Act of Parliament.
* THE EARL OF GALLOWAY
What is the use of noble Lords constantly interrupting? I really cannot go on.
* LORD ORANMORE AND BROWNE
I think these interruptions are rather unfair. Noble Lords are not commonly spoken of by all their titles. For instance, the Duke of Argyll is called the noble Duke, but he does not sit in this House as the noble Duke at all. That is the common rule. There are many cases of Scotch and Irish Peers who are not referred to by the title by virtue of which they sit in this House, but by some other. It is the same with Ministers of the Crown; they are not mentioned here by the titles under which they sit.
THE EARL OF ROSEBERY
I agree with the noble Lord to this extent, that when there are two titles, noble Lords are spoken of by the more ancient title of the two. Therefore, in this case, if the Earl of Mar and Kellie is not so spoken of, he ought to be referred to by his more ancient title of the Earldom of Mar,
* THE EARL OF GALLOWAY
We Scotch Peers who understood the matter constantly besought you to do justice, which, after due investigation, was partially accomplished by the Declaratory Act of 1885, but can we return to Lord Mar those years of wrong and anxiety, or offer any compensation for having caused him to struggle against injustice, for that which we enjoy without any such struggle, and which was already his birthright as much as that of any and every peer in this House? I beg you not again to delay this investigation, which would occupy but a very short time, for there is absolutely no evidence to investigate with regard to the mythical "Earldom of Mar of 1565," created really in 1875. What I want to observe, my Lords, is that the Report of the Committee of Privilege was admittedly, by Lord Chelmsford's own words which I have already quoted, given on no evidence, because when this Earldom of Mar was 1116 created mythically in 1565, there was no such title on the authentic roll of Peerages of Scotland. Nevertheless, the late Earl of Kellie persisted for ten years in voting as Earl of Mar in right of that title, though he did so under a bar of protest on the part of some 70 Peers. I can assure your Lordships the matter can never rest till the truth is acknowledged. We Scotch Peers, and the Scotch people who preserve an interest in their traditions and rights, are tired of pretending that there is a second Earldom of Mar, when all know there is no such thing in existence. Therefore, I am sure your Lordships will feel with the large number of Peers who have expressed their desire that a thorough investigation be made into the whole matter. This can do no harm to a good right. For to admit the truth will relieve this House from a serious embarrassment, and the Committee from the continuance of a great wrong, which seriously compromises the integrity of the Scottish Peerage and the dignity of this House. I adjure your Lordships not to permit your judgment to be warped in a matter which manifestly concerns law and order as well as right, truth, and justice, but to accept this Motion which I have the honour to move:
Moved to resolve,
That a document regarding the Earldom of Mar, bearing the signatures of upwards of a hundred Peers, in which they signify their opinion 'That an inquiry into the statements' [therein contained] 'would conduce to the due preservation of law and order, to the maintenance of the dignity of the House of Lords, and of the integrity of the Scottish peerage,' be laid on the Table of the House, and that an investigation be made into the merits of the facts therein stated by the Standing Committee for Bills relating to Law,' or by some such other tribunal as this House may direct;
And that the protests made by the Earls of Mar and Moray at Holyrood on 10th January 1889 (printed by order of this House on the 22nd February) respecting the allegation for the first time in 1875 of a fresh creation in 1665 of an Earldom of Mar be also submitted for the consideration of the Committee, with the view of their eliciting whether such is consistent with the acceptance by this House of the Roll of the Peerages of Scotland as authentic at the Union in 1707, on which there was none but the ancient Earldom of Mar recorded;
And further, that there be called to the special notice of the Committee, for their guidance, the Restoration Act of the ancient Earldom of Mar in 1824 (after its attainder in
1715) as well as the Report of the Law Offices for the Crown in 1824 upon which it was enacted, showing the position of the Earl then restored as his mother's heir;
And this with the object of the whole question receiving a thorough investigation in the interests of law and order."— (The Lord Stewart of Garlies [E. Galloway].)
§ * THE EARL OF SELBORNE
My Lords, I rise to move, by way of Amendment to the Motion, to leave out all the words after "that," and substitute the following Resolution:—That the right of the Earl of Mar and Kellie in the Peerage of Scotland to an Earldom of Mar created in 1565 having been established on claim duly made before the Committee of Privileges, and confirmed by Resolution of this House in 1875, and having been since recognized by the Act of Parliament passed in 1885 for the restitution of the more ancient Earldom of Mar, and the late Earl of Mar and Kellie having sat in this House by that title as one of the Representative Peers for Scotland, the right and title of his successor, now Earl of Mar and Kellie, to that Peerage is unimpeachable in law, and cannot be called in question in this House.I cannot affect to feel surprised that the noble Earl should have committed those irregularities of which notice has been taken, because his Motion is in itself irregular and contrary to that law and order of which he professes himself the champion, as well as contrary to the practice and law of your Lordships' House. I have three reasons for coming forward to propose this Amendment. One is that I take quite a different view of the honour and dignity of your Lordships' House from that of the noble Earl; and I think nothing could be done which would more compromise the honour and the dignity of the House than the adoption of such a Resolution as that which the noble Earl has proposed. My second reason is that I had a large share of responsibility for the introduction, and I think I may even say for the passing, of the Restitution Act of 1885; and having that responsibility it would not have been becoming of me to refuse the appeal made to me by the present Earl of Mar and Kellie, which is my third reason for coming forward on this occasion. In a letter containing this appeal, dated April 5, the noble Lord, who is not a member of this House, said—I would not willingly trouble your Lordship on a matter which cannot be of much interest except to those who are immediately concerned, 1118 I mean the Mar Peerage case. The fact of your Lordship having taken a leading part in the passing of the Earldom of Mar Restitution Act of 1885, which was intended to settle the question, is, I trust, a sufficient excuse for addressing you on the subject. As your Lordship is doubtless aware, my father died last September, and on the very day of his funeral I received a letter from Lord Mar protesting against my assumption of my father's title of Mar, and also hinting in so many words that he would not rest until he had dispossessed me of my title and taken possession of my estates, to which he, in spite of the decision of the highest Court of Appeal in the country, still fancies he has a right. I also labour under the disadvantage of not possessing a title which gives me a seat in the House of Lords, and in consequence of not being able to defend myself there.I have, therefore, been appealed to in a manner which I could not resist. I do not, I confess, think it is so great a disadvantage to the noble Earl not to take part in a debate concerning himself; for if I might be permitted to recommend to others a rule which I should think it right to follow myself, I think those who are personally interested in any question must speak at very great disadvantage if they come forward to advocate their own cause. Therefore, I think it is perhaps on that account better for the noble Earl not to be placed in a position in which he might have been tempted so to do. Well, my Lords, having said so much, I will now proceed to give my reasons for urging, first of all, that the Amendment should be adopted; and, secondly, that the Motion of the noble Earl opposite should not be adopted. Now, with regard to the Amendment, it merely states matters of fact about which there can be no dispute, and a conclusion of law which I do not think any noble Lord who is at all conversant with the law will be disposed to call in question. The first matter of fact is that the right of Lord Mar and Kellie to an Earldom of Mar created in 1565 was, on claim duly made, established before the Committee of Privileges and confirmed by the usual resolution and adjudication of your Lordships' House in 1875, 14 years ago. The noble Earl, if he were cognizant of law, would certainly not have made a quotation from one of the Judgments in that case which he did. Lord Chelmsford, who was a man of some intelligence as well as knowledge of the law, seemed to have been understood by the noble Earl to have said that he had no evidence of any kind to go upon for the 1119 conclusion at which he arrived. Lord Chelmsford said nothing of the kind.
§ * THE EARL OF SELBORNE
If the noble Earl had understood what he read he would not have placed that construction on Lord Chelmsford's words, or cast that aspersion upon Lord Chelmsford. The ancient Earldom of Mar had been practically in abeyance for about 150 years. Not only had it been in abeyance, but acts had been done by the Kings of Scotland which assumed its forfeiture or surrender. Practically and de facto it was not existing. Queen Mary gave a charter of restitution which did not mention the honour and dignity, though it spoke in Latin of the comitatus, and the Committee of Privileges held that that meant the lands, and that the dignity was not restored by the charter. An additional ground for that conclusion, besides the language of the charter, was that there was an interval of more than a month after that charter during which the person who subsequently appeared in Parliament as Lord Mar continued to attend the Privy Council, and did public acts not under the title of Mar but under the title of Erskine. On the day of Queen Mary's marriage with Lord Darnley that Lord first bore the title of Mar; and under that title he sat in Parliament from that time forward; and therefore you have what I may describe as not an uncommon instance of a Peer whose patent is not forthcoming, but whose Peerage was established by sitting in Parliament. The question, therefore, for the Committee of Privileges in 1875 was whether that was a new creation or a restoration and revival of the old Peerage, or a claim established to sit by right. Of the last hypothesis there was no trace whatever. It was held on the legal construction of Queen Mary's charter, that there was no restoration; but the unanimous judgment of Lord Cairns, Lord Chelmsford, and Lord Redesdale was that it was a new creation. I would remind your Lordships of what Lord Cairns said. Lord Cairns, who was at that time Lord Chancellor, never changed his mind as to the correctness of the decision arrived at in 1875, although he was favourable, as I ascertained from personal communication with him shortly before his lamented death, to the restitution of the 1120 old Earldom by Act of Parliament. His words were:—I am of opinion that it is clearly made out that the title of Mar, which now exists, was created by Queen Mary some tine between the 28th of July and the 1st of August, 1565. It appears to me perfectly obvious, from every part of the evidence, that in the greater part of the month of July, and before that creation, there was no title of Mar properly in existence.After the Committee reported their opinion to the House that the Earl of Kellie had made out his claim to be holder of the dignity of Earl of Mar in the Peerage of Scotland, created in 1565, the House passed a Resolution in conformity with that opinion, which was ordered to be laid before the Queen and transmitted to the Lord Clerk Register. The noble Earl seems to think that the usual course was in some way departed from on that occasion. That is not the fact; the usual course was in all respects strictly followed; and, the noble Earl must excuse me for saying that the great lawyers who decided that question were much more competent to consider it than the noble Earl. The Constitutional way in which all claims to Peerages are determined is, first, to Petition the Crown; then the practice, never departed from, is to refer that petition to the Attorney General; if there is, in the opinion of the Attorney General, no question to be investigated, his report is usually acted upon as sufficient; but if he reports that there is a question which requires investigation, the matter is referred to the Committee of Privileges. The Report of that Committee comes before the House, which, in point of fact, always adopts it, and the decision is laid at the foot of the Throne; the Sovereign never interferes with it, any more than she does in any other case of an adjudication in due course of law; and on the footing of that decision all subsequent measures are taken. A very great number of claims to Peerages have been determined in that way; and there is no other way in which they can be determined. If the principle of the noble Earl's Motion, who asks your Lordships to review one of those decisions, solemnly and unanimously arrived at, in a way never before heard of, could be admitted, no Peerage resting upon a Resolution and adjudication of your Lordships' House agreed to in the usual and Constitutional way could ever be safe. 1121 Many of those cases have been decided with doubt and difficulty, and with division of opinion. I will not name them; but in one case I have in my mind the late Lord Redesdale differed from Lord Cranworth and Lord Brougham, who both said it was the most difficult question on which they had ever had to make up their minds; still they reported in favour of a noble Lord, who now sits in this House by virtue of their decision; and no one had ever said since that because the question was a difficult one the decision should be called in question. While I am referring to this matter, I think it is worth while, in order to remove any misapprehension which may exist, to mention that in 1858, in that very case to which I have referred, the present Lord President of Scotland, then Lord Advocate, said expressly that with regard to the question of rank and order of precedence it had not been uncommon, when an old title was newly granted, to give the precedence of the old Peerage. The authority of the decisions of the Committee of Privileges, when confirmed by the House, is, if possible, even greater as to Scotch than as to English Peerages; being recognized, as to Scotch Peerages, by an Act of Parliament passed in 1847. That Act recites the Union Roll, to the list contained in which (it says) sundry Peerages of Scotland have been added by order of the House of Lords; and it goes on to provide for the authority of the House of Lords to make orders and to allow or disallow claims to Peerages. When the noble Earl talks about "law and order" I hardly know how to treat him seriously. With regard to the authority of such a decision in England, and the authority which belongs to a Resolution of this House, if the claim is not made out, of course it is open to the claimants to bring forward the claim again; but if it is made out, there is not a single instance on record of any attempt having ever been made to review, or revise, or to treat as open to review or re-consideration, that decision so long as the lawful descendants of the person who has held the title continue alive. It has been held that when the lawful descendants are exhausted if some one comes forward and says—if, in point of fact, a statement is made—"My ancestor was the true 1122 heir," it has been held in one or two cases that further inquiry before another Committee of Privileges is not excluded. But it was expressly said by the first Lord Redesdale, who understood Peerage law as well as any man ever did, in 1807, that in favour of the person whose claim has been allowed and his descendants, the finding of the Committee of Privileges, confirmed by the House, is conclusive, and there is not a single instance to the contrary. The Act passed in 1847 as to Scotch Peerages, as I have said, expressly recognizes the authority of the House of Lords; and it contains a clause that whenever any Peer or Peeress shall have established his or her right to any title—the very thing that was done in this case—the Lord Clerk Registrar, or the Clerks of Session shall not, during the life of such Peer or Peeress, allow any other person claiming to be entitled of such Peerage to take any part in any election of Representative Peers for Scotland. Your Lordships will not think that it was intended to establish life Peerages, or interfere with succession to lineal heirs. But, of course, on a succession after death, the successor must be called, and take part in those elections. So that the authority of this House, exercised in the ordinary way with regard to Scotch Peerages, has been put upon a statutory footing, which, as far as I know, is rot the case with regard to England. Well, my Lords, so much for that first step in the matter. In the present case, it does not rest there. That has happened in this case which is not likely to happen again under ordinary circumstances—there has been a direct recognition and confirmation by Act of Parliament of the determination of the House in 1875. The noble Earl now brings forward a document signed by a certain number of Peers. In the year 1884, 104 Peers signed an Address to the Queen; and certainly there was not the same impropriety in that Address, if I may venture to say so, that we have here, because that Address prayed for the restoration of the noble Earl, who is now a Member of this House, to the ancient Earldom, on the ground that his position remained untouched by the finding in 1875 that an entirely different title belonged to the Earl of Mar and Kellie. That was the Petition in 1884, and of 1123 course it could not be acted upon in an arbitrary way; but in compliance with that request Her Majesty signified her pleasure that a Bill of Restitution should be introduced. My Lords, it would have been very wrong to have passed that Act, a Restitution Act, in a form which could disturb the previous decision of the House, or leave this question open. I am bound to offer my testimony to the conduct on that occasion of the late Earl of Mar and Kellie. He might have opposed the passing of that Act. A strong Committee of lawyers and laymen examined the Bill, and if his Lordship had opposed it it is impossible to say what might have been the result. But what he said, in effect, was this:—"As long as it is clear that ray rights are not interfered with I will not stand in the way of this Restitution Bill." And his Lordship did not. He acted honourably and generously: no doubt, it did not cross his mind that any of your Lordships would break faith with him. And now I must call your Lordships' attention to what was actually done by that Act. It recited some previous matters which I may pass over, including the Act of Restoration passed in the reign of George IV., which removed the attainder of 1715; then there is a recital of the opinion of the Committee of Privileges, and the proceedings before this House; and it is further recited that by the Resolution of this House the right of the said Earl of Kellie to the honour and dignity created in 1565 was established. Well, that alone, I should have thought, was sufficient. The third clause dealing with the subject of precedence is in these words—From and after the passing of this Act the Earldom of Mar hereby restored shall be called in all elections of Representative Peers of Scotland, next after the Earldom of Sutherland; and 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 to the contrary notwithstanding.It is expressly enacted by Parliament that it shall be so called in all elections. There is not a Peer in your Lordships' House who, in point of law, sits by a clearer or stronger title than the Earl of Mar and Kellie in the Peerage of Scotland, at all events since the passing of the Act; and, if anything else were 1124 wanted, you have the fact that the late Earl of Mar and Kellie sat for 10 years in this House.
§ * THE EARL OF SELBORNE
And sat. On the Roll of the House, both before and since that year, he has appeared as the Earl of Mar and Kellie. I do not suggest that that was necessary; the right to the title would have been complete without it, but I think it right to take notice, in the Amendment which I have submitted to your Lordships, that you have that fact in addition. A more monstrous thing than to attempt to interfere with a title so established was never heard of. And who is injured by it? The noble Earl who has been restored to the ancient Earldom retains the right which he obtained by that restitution, and his advocates appear to be desirous to do what is called in Scotch Law approbate and reprobate—that is, they wish to take the benefit of the Act of Restitution, and, at the same time, to reject those clauses in it which expressly recognize and protect the rights of the Earl of Mar and Kellie. That, if it were possible that it should be done, would be nothing less than a fraud upon the Crown and Parliament. There is another matter, but for which I strongly suspect that your Lordships would not have been troubled with the present debate. There is something involved here relating to property. These are matters which justify, I think, the Amendment of which I have given Notice. It is not necessary for me to say anything further upon that matter, and I wish I could stop here; but I do protest against the attempt to use the position of Members of this House for the purpose of interfering with individual and private rights, contrary to all Constitutional principles, contrary to the procedure of all Courts of Law, and contrary to titles to Peerages already established. Now, my Lords, let me remind you what has been done. In June, 1887, a Petition was presented by the noble Lord, now a Member of this House by virtue of that Act of Restitution, in which Petition he raised questions about property, and wanted the House to go into a question of title to land. The noble Earl (the Earl of Galloway) gave Notice of a Motion on that subject. That matter 1125 is not dropped now, and I must tell your Lordships how it stands. The present restored Earl of Mar brought an action in the Court of Session of Scotland for the estates which formerly belonged to the Earls of Mar, and which had been settled by legal deeds by persons competent to settle them. The Court of Session unanimously held that the pursuer had no pretence of a claim to those estates. That case as to the property was brought to the Bar of this House in the ordinary course of appeal, and an unanimous judgment was, here also, pronounced against the claimant. That case was determined upon the single legal construction of ordinary words in a deed; it was quite independent of any question as to the Mar Peerage; only one noble and learned lord (Lord O'Hagan) referred at all to the Peerage; and he did not refer to it as really material, in any way, to the judgment. If the noble Earl (the Earl of Mar) thought that any point of fact or of law, not concluded by those judgments, was still left open to him, his proper course would be to go to the Courts of Scotland. Never since the days of the Long Parliament has such a proposal been heard of as that of the noble Earl. In those times there was no limit to the subjects on which there might be inquiry. Questions of this character, relating to titles of dignity and property, must be settled in the ordinary Courts of Law, and by the ordinary means. I had so strong a sense of the impropriety of the Notice of Motion which the noble Earl (Lord Galloway) put down in 1887, that I gave Notice I should move that the Question be not put; and it was, in fact, not put. The Motion was never made. Last year the noble Earl took a new step. He moved, in the face of the Act of 1885, to rescind and expunge the Order of the 26th February, 1875, which that Act of Parliament had recognized and confirmed. On that Motion by the noble Earl to rescind the Order of this House four noble Lords in the Peerage of Scotland, of whom the Earl of Mar was one, and eight English Peers went into the same Lobby with the noble Earl, and 39 voted against him. I hoped that, after those two attempts, nothing more would have been heard of this matter. But, unfortunately, it is not so. There is one 1126 thing which I am very sorry to be obliged to mention. The Earl of Mar and Kellie died on September 16, 1888. It appears that the claimant thought it right and not indecent to put into the hands of his solicitor a protest be read at the funeral. I will not read it; but there was a letter written the next day by the noble Earl, the restored Peer, which I must also mention to your Lordships, in order that you may consider whether you will make yourselves parties to the sort of persecution which is directed against the present owner of the estates, and the present holder of the title of 1565. It began with an expression of regret—one can hardly be surprised at that: but it said that the writer would never rest, while his relative remained in possession of his title and estates:—a title and estates to which he has as good a right as any of your Lordships have to anything which you possess. I next come to the singular document, said to be signed by more than 100 Peers, to which the noble Earl (Lord Galloway) has referred, and which he wishes to lay upon the Table of this House. I ask whether it is entirely right of the noble Lord to go about canvassing for signatures to such a document, containing all the old cut-and-dried statements about this matter, and a good many others besides. To that document there seem to be appended some of the most honoured names in this House. I wonder whether all those noble Lords have informed themselves about the law and facts which are laid down in that document. It contains, among other things, a paragraph about the restored Earl's claim to the estates in the possession of the Earl of Mar and Kellie. When that document was taken round, and when noble Lords were canvassed to sign it, I wonder whether they were told that the question of the right to those estates had been solemnly determined by the Court of Session in Scotland and by this House. I cannot imagine that the noble Lords to whom this document was taken round went into all these particulars, or informed themselves upon the law and the facts of the case. My Lords, I have a great deal too much respect for those whose names have been obtained to that document to believe for a single moment that it was so. I do not know whether it was the noble Earl, or who 1127 it was, who canvassed for those signatures.
* THE EARL OF MAR
My Lords, may I be allowed to interpose for one moment in explanation? The Peers who were canvassed to sign that document were informed that they were not pledged to the accuracy of the statements contained in it, but simply to the proposition that an inquiry and investigation into this matter was desirable.
§ THE EARL OF SELBORNE
It is a document to which I am sure those noble Lords would never for a moment have put their names to as desiring any inquiry if they had understood the matter. My Lords, I venture to think they did not understand it. I am quite sure that after the solemn decisions of this House many of the noble Lords who have signed that document would never have put their names to it had they been aware of its real character. I have received a letter from Lord de Ros, whose name is appended as one of the signatories, and who is unable to be now present, stating that the noble and gallant Lord signed under a complete misapprehension. He says:—Having been unexpectedly ordered to attend upon the Shah, I am unable to attend the House of Lords this evening to explain, that I signed Lord Galloway's paper under a totally false impression, and when I read the notice of his Motion and your Amendment, I wrote to inform him that under these circumstances I could not support his Motion. Pray make any use of this that you may think fit.And, my Lords, I am told by Members of your Lordships' House whom I can believe that they have been informed by two or three other noble Lords whose names are appended to that paper that they are in the same situation; and, indeed, it must be so, for there are certainly names in that list of noble Lords who would lend themselves to no persecution and no injustice, and who certainly would not do anything in contravention Of the decision of this House and the express terms of an Act of Parliament. I beg to move the Amendment which stands in my name.
Amendment moved, to leave out all the words after "That," and substitute the following words:—
The right of the Earl of Mar and Kellie in the Peerage of Scotland to an Earldom of Mar created in 1565 having been established on
claim duly made before the Committee of Privileges, and confirmed by Resolution of this House in 1875, and having been since recognized by the Act of Parliament passed in 1885 for the restitution of the more ancient Earldom of Mar, and the late Earl of Mar and Kellie having sat in this House by that title as one of the Representative Peers for Scotland, the right and title of his successor, now Earl of Mar and Kellie, to that Peerage is unimpeachable in law, and cannot be called in question in this House."—(The Earl of Selborne.)
* THE MARQUESS OF HUNTLY
My Lords, I should like to say a few words upon this subject. I refused to sign the paper referred to upon the very point to which the noble Earl (Selborne) objects. I did not see how the inquiry asked for could be beneficial to anybody, and I, therefore, declined to sign the document. I think I was the first Peer of this House who called attention to this matter, and one of the earliest supporters of the noble Earl of Mar. Though I have listened attentively to the long speech of the noble and learned Earl who has just sat down, it has not relieved me of the great difficulty which I feel as a Scotch Peer in this matter. The noble and learned Lord led up to the difficulty, but when he got there he retired from it. At the same time, I think he addressed himself to the question with rather too much animus and heat. Those who have interested themselves in this question have no personal feeling one way or the other. I have the acquaintance of the noble Lord Mar, and was also on terms of intimacy with the late Earl of Mar and Kellie. That shows I have no personal feeling in the matter. My difficulty is this:—In the Act of 1847 there is a very important clause that the Lord Clerk Register of Scotland cannot call any other Peerage except that which stands on the Roll of Scotland. He calls that Peerage, and it is expressly laid down that no other call can be made. My Lords, I admit that the Act gave full authority to the Committee of Privileges of this House over Scotch Peerages; and in pursuance of that Act, in 1875 the Committee of Privileges granted a Scotch Peerage dated 1565 to the late Lord Mar and Kellie, who voted at Holyrood and voted in this House as Earl Mar. But I think the noble Earl is wrong in saying that he voted under the 1565 Peerage; he voted supposing he was holding the ancient Peerage of Mar. 1129 What occurs at the election at Holyrood is that upon the Roll being called over an appearance is made to the title as it stands on the Roll. There is no other Roll. Then the Earl of Mar instantly protested, and why? Because there is no such title of 1565. Therefore, there is a dead-lock to begin with. My Lords, to put it shortly, by your own Acts of Parliament you have got the Scotch Peerage into a difficulty. As the holder of an ancient Scotch Peerage I do object very seriously to the unseemly disturbances at elections at Holyrood about what Peerages noble Lords hold when Peers are called, and what position they hold in the Peerage of Scotland—whether there are to be two Peers called as holding one title, or who should vote under it, if it ever existed. My Lords, I do not agree with the Motion of my noble Friend, and, therefore, I do not vote for it; but it appears to me that the legal difficulty is one which those who are responsible for it should rectify, and I must say I do not think the speech of my noble and learned Friend has answered the difficulty felt by Scotch Peers. As I have said, my Lords, I shall not, however, vote for the Motion.
* THE EARL OF MAR
My Lords, the noble and learned Lord Selborne has raised a great many points, almost too many to be dealt with in the time during which I propose to occupy your Lordships' attention. But I must be allowed to answer a few of these points. Lord Selborne has stated that Queen Mary's Charter of Restoration did not mention the dignity of Mar. But, my Lords, at that period there were no charters relating to dignities apart from lands. There were then no Peerage Earldoms separate from the lands of the Earldom. This is proved by the Report to the House of Lords in 1739 on the subject by the Court of Session, and, further, in the Moray case, in 1793, the Lord Chancellor Loughborough incidentally quoted the position of Mar, and ruled that Queen Mary, in restoring the comitatus of Mar, restored the honours, for the comitatus embraced the dignity of Mar with the lands. Lord Selborne also made a point that the Earl restored by Queen Mary sat in Council for a month under his title of Erskine. His Lordship seems unaware that in these early days, before railways and telegraphs, it 1130 often took a long time before a Peer could adopt the necessary legal forms of "insestment," without which he could not enjoy the full rights of his Peerage. One month was a remarkably short time for this, and, even when sons succeeded fathers, the process of "insestment" often occupied a year or more. This was pointed out by the late Earl of Crawford and Balcarres, in one of his very learned treatises on the history and position of the Earldom of Mar. Lord Selborne has disparaged the importance of two documents which Lord Galloway has moved shall be investigated—namely, the Act of Restoration of the ancient Earldom of Mar, in 1824, through female succession, and the preliminary Report of Inquiry by the Law Officers for the Crown, showing that the restored Earl in 1824 was "his mother's heir," in both title and estates of Mar, in contradiction to the position assumed by Lord Kellie. Now, every lawyer has assured me that these are conclusive against Lord Kellie. But what happened in 1869, in Lord Kellie's claim to an Earldom of Mar? This Act of Restoration through female descent in 1824 was ignored by the Committee for Privileges, and they actually stated in their "Judgment" there was "no inquiry made," though it was duly presented in evidence, signed by the Law Officers for the Crown, English and Scotch. It has been said by Lord Selborne that, before 1885, I never enjoyed the privileges of a Peer, and yet, my Lords, for 10 years my vote as a Peer was accepted and recorded at Holyrood, and I was habitually received at Court for about 10 years as Earl of Mar. Lord Selborne has further stated that, regarding the matter now before your Lordships, "there was something relating to property." Now, my Lords, I did not intend to allude to this subject, but I must say that the result of the action of this House, for many years, in denying me my position as a Peer, has been to step in and put a bar between me and part of the estates of Mar, recovered after the attainder in 1715, which has prevented me from pleading in the Courts of Law, as a Peer, my right to the estates, which I maintain are entailed on my Peerage, on the "heirs male and female inheriting the Earldom of Mar, should it be restored," as it was restored in 1824 through female 1131 descent. I venture to submit that the Motion of the noble and learned Earl, to the effect that the claim of Lord Kellie to an Earldom of Mar has been decided, and therefore ought not to be inquired into, is altogether beside the question, for it is obvious that had the decision not been given your Lordships would not be assembled here to-day to consider the matter. Were there no such decision, the Earl of Galloway and many other Peers could not now be calling it in question on grounds which they earnestly ask to have investigated, those grounds being that there is no second Earldom of Mar in the Peerage of Scotland. Surely all that has happened in this House and at Holyrood since that decision in 1875 must afford very substantial reasons for believing primâ facie that the statement is true that there is not, and never has been, any second Earldom of Mar. If that statement is true, the decision falls to the ground, for it is beyond the power of any tribunal to create a Scotch Peerage. This House has always been a House of justice and equity. To refuse to investigate the charge that a fictitious title of Mar has been set up for the benefit of the Earls of Kellie is not consistent with justice or with the maintenance of the dignity of this House. My Lords, it is with deep regret that I must trouble the House again with this question, forced on me by the cruel and absolutely unprecedented circumstances of the case; but, in justice to myself, I must state, that while your Lordships are victims of the "Mar Case," I am infinitely more so, considering the many years of wrong and anxieties during which my rights were unjustly withheld, and the many thousands I have had to pay merely to defend my position, merely to be left only where I was by inheritance on the death, in 1886, of my uncle, the late holder of the ancient and only Earldom of Mar in the Peerage of Scotland. My Lords, you will forgive my alluding to one of the many absurd reports lately circulated, and which would be amusing were it not that they are misleading, and they have induced at least one Peer to refuse to sign our paper. It has been erroneously stated that our object is to recover the old estates of Mar in Aberdeenshire, which were confiscated when my direct ancestor espoused the cause of the Stuarts in 1132 1715. These estates, which were of great extent and value, were then sold by the Crown to various families—Lord Fife, the Farquharsons, Gordons, Forbes', and others. I need scarcely say the idea that I seek to recover these estates is simply so ridiculous that it bears its own refutation on the face of it. I owe a debt of gratitude to the many Peers who generously aided in this struggle by their Petition to the Queen in 1844, in which they maintained that I was already in possession of the ancient dignity in the same way as other Scotch Peers; and they petitioned that my rights and privileges as a Peer of Scotland, which were denied me for 10 years, should be no longer withheld, for it cannot be denied that for 10 years, under official sanction, Lord Kellie was allowed to vote in right of my Peerage, which I inherit through seven ladies, because he had been given by this House a non-existent Peerage, which was said to be limited to the heirs male of the Erskines. Now, my Lords, if a great number of the Members of this House had not supported me and aided in this struggle, to this day the officials of this House would be allowing Lord Kellie still to vote as if he held that ancient title. Now, the Resolution which is brought forward by the Earl of Galloway is not asking this House, by a vote of the House, to annul the decision of the Committee of Privileges in 1875 giving Lord Kellie that new creation of 1565, but we are asking to have this statement investigated —that there is no such Earldom in existence; that no such Earldom ever has been in existence as that supposed creation of 1565; that the Committee have found Lord Kellie entitled to a non-existent Peerage. Now, my Lords, this fact that the title of Mar with an alleged creation in 1565, and restricted to the heirs male of the Erskines, and conceded to Lord Kellie, is a peerage which is "non-existent," is, I may say, the sum and substance of the conclusions of the late learned Earl of Crawford and Balcarres, the greatest authority of this century on Scottish Peerage History and Law; and this fact he proved in his large and exhaustive work, in two volumes, "The Earldom of Mar in Sunshine and in Shade during 300 years." We think that all the difficulties and all the indignities 1133 that that decision has brought upon this House entitle us to ask that this statement should be thoroughly investigated; because, if that statement is unfounded, it is a most improper statement to make, and if it is well founded, what are the Peers asked by that Committee to do? To set up a pretended right for the advantage of the Earls of Kellie, and to cling to that fiction, and expect all the Scotch Peers to pretend that there are two Earldoms of Mar when they know there is only one. Now, my Lords, I must call your attention to certain observations by the noble and learned Earl (the Earl of Selborne), maintaining that it is impossible there could be two Earls of Mar, in direct contradiction to what he is now vigorously asserting. When the fruitless attempt was made in this House a few years ago (1877, July 9th) to remove my old Earldom from the Roll and replace it by Lord Kellie's new Mar title, and the attempt was abandoned. Lord Selborne stated heCould not conceive anything more destructive of the authority of the decisions in this House than to encourage the idea that there are two Earls of Mar." (July 9th, 1887.)Now, my Lords, to-day we are opposed chiefly by the few Scotch Peers, who, from the beginning, opposed even the rectification of the injustice that Lord Kellie was to hold the Earldom of Mar limited to males, and vote in right of my Earldom that has been acknowledged to be traced through seven ladies. Those Peers, notably Lord Lothian, Lord Elphinstone, Lord Balfour of Burleigh, and the late Duke of Buccleuch, tried to prevent the protests made against Lord Kellie assuming a title the House had not given him being received; and if they could have stopped the protests, and could have carried out their endeavours, they would to this day have prevented justice being done to me, and allowed Lord Kellie to continue to vote under the old Earldom; and now they are active, together with the Earl of Selborne, in endeavouring to prevent your Lordships from granting that investigation which 112 Peers have signed a paper to say that the dignity of this House and the integrity of the Scotch Peerage demand should be made into the astounding assertion that this House is keeping up a pretence and a fiction for the benefit of 1134 the Earls of Kellie, to the detriment of the Earls of Mar in perpetuity. We do not ask you to upset the decision of the Committee of Privileges; but we ask you to investigate, and ii that investigation proves the truth of what we state, what is there to upset? We say that there is no second Earldom of Mar, and not only that, but there was not one atom of evidence or one single ground of any description for saying that there was. Now, my Lords, with respect to the Report of the Committee for Privileges that Lord Kellie was entitled to an Earldom of Mar, what did the Earl of Mansfield say in 1877, July 9, in this House, a full House of 160 Peers, including all the learned Lords who formed that Committee, after studying carefully the Judgment in Lord Kellie's favour? Lord Mansfield said:—The decision was a most extraordinary one—that there was a Peerage of Mar of 1565 which nobody had heard of before, and which has no scrap or tittle of evidence of any kind to support it.He added:—There is no document of any kind to prove that there ever was that creation in 1565.Lord Mansfield continued:—The Committee for Privileges made a most erroneous report, supported by no facts whatever; but no doubt the noble Lords took great pains with the case, for it must be a difficult thing to do to write a Judgment with all the facts against them.We cannot ask you to investigate the evidence which the Committee in 1875 said proved Lord Kellie's right to be Earl of Mar, for the very substantial reason that there is no evidence; but we ask you to investigate the truth of this statement. Those who have supported Lord Kellie's supposed rights with regard to an Earldom of Mar since 1875—notably, those noble Lords—Lothian, Lord Elphinstone, Lord Balfour of Burleigh, and the Duke of Buccleuch, with the Earl of Selborne, whose action I shall briefly recapitulate directly—should have the courage of their opinions, and be the first to promote investigation into such an attack on the decision of the Committee of Privileges. The Committee of Privileges is not a Law Court. Some time ago the Peers inquired into Peerage matters themselves as an assemblage; but they found it more convenient to delegate the inquiry into rights of Peerage to a Committee, and 1135 that Committee is instructed to inquire into evidence and to report thereon, and it sits in private with closed doors; and therefore when that Committee of 1875 ventured to report to this House without an atom of evidence that Lord Kellie had made out his claim to an Earldom of Mar, in the teeth of the advice of the Law Officers of the Crown that Lord Kellie had failed to make out a right to be Earl of Mar, it committed a great indignity against this House, because it did not follow the instructions of this House. It was instructed to inquire into evidence and report thereon. It had no evidence on Lord Kellie's side to inquire into, yet it reported he had made out his right to a mythical Earldom of Mar. That extraordinary Report may have been owing to the unusual composition of that Committee, which consisted of the Chairman and two learned Lords, Lord Chelmsford and Lord Cairns. Lord Chelmsford was then at a very advanced age. Lord Cairns did not write a judgment, but he concurred in the judgment of Lord Chelmsford and the Chairman, who was not a Law Lord. It will not be contradicted in this House when I say that Lord Cairns, before he died, expressed an earnest wish that justice should be done, and he knew well that justice could not be done to me without it becoming evident that there was no second Earldom of Mar in the Peerage of Scotland, such as had been given to Lord Kellie. Therefore, this solemn judgment, which we are asked by the other side on no account to inquire into, rests virtually on the single legal opinion of Lord Chelmsford at a very advanced age. This Resolution that is moved by Lord Gallaway is not asking the House to take any measures to destroy the decision of the Committee of Privileges; but it is asking that investigation should be made into this statement, that there is no second Earldom of Mar in the Peerage of Scotland, and no ground for saying that there is such an Earldom. If that statement is true, it will not need upsetting, because there is nothing to upset. Now, my Lords, in order to bolster up that fiction, this House was asked to take very much more stringent and high-handed action than is sought for to-day. The late Duke of Buccleuch brought forward a Resolution in 1877 in which he invited 1136 this House to take the ancient Earldom which I inherited, and under which I now sit, off the Roll of Peers, where it was placed at the Union among the Authentic Peerages of Scotland, and to insert on the Roll the imaginary Peerage of 1565. My Lords, you were invited to do that without any inquiry; there was to be no inquiry or investigation as to how it was that Lord Kellie's title was not there and mine was; but the Peers assembled were to do this high-handed act of injustice to the Mars for the benefit of the Earls of Kellie without anything further. Now, my Lords, finding that the protests at Holyrood against Lord Kellie voting as Mar increased in number at each election, the noble and learned Lord Selborne, who has constituted himself for, years past my opponent in this matter, has striven to bolster up this fictitious Peerage of Mar assumed by Lord Kellie. Your Lordships will kindly allow me to say a word or two about the so-called "Earldom of Mar Restitution Act" of 1885. An Act of Parliament cannot call into existence a myth. It was a declaratory Act, passed, as it states, to remove "doubts which may exist" as to the ancient Earldom (doubts which the Act itself proved to be groundless, if ever they existed), and to declare that I had inherited from my uncle in 1866 his ancient dignity of Mar, through seven ladies. Now, what do we find in this Act, passed ostensibly for the sole purpose of doing me justice? As Lord Kellie, with his new Mar title, no longer respond and vote as "Mar" on the Union Roll, because the ancient Earldom on the Roll was already mine, through female succession, we find this strange provision in the Act, by which, for the first time, an unknown and unrecorded Earldom of Mar is called lower down, with an assumed date, to suit Lord Kellie's convenience, and he is permitted thus to respond and vote as Earl of Mar without an Earldom of Mar. The provision in the Act of 1885 runs as follows:—The Earldom of Mar, now vested in the Earl of Kellie, shall be called in the place and order properly belonging to an Earldom created in 1565, anything in the Decreet of Ranking of 1606 notwithstanding.Now, my Lords what did Lord Selborne say (in 1877, July 9th) as to the Decreet of Ranking founded on C.R. U.R.? He said:— 1137The authentic list of the Peerages of Scotland, the Union Roll, has a very high authority indeed; the title of Mar is one which stood on the Roll, as it stands now, in precedence given by the Decreet of Ranking.Lord Selborne added—If we call the title of Mar in the place to which this House declared it entitled—namely, 1565, according to the date of that creation (conceded to Lord Kellie) the authority of your Lordship's decision would be impeached and impugned.My Lords, that provision in the Act, introduced under Lord Selborne's auspices, that Lord Kellie should vote as if holding an Earldom of Mar of 1565, has, and does, impeach and impugn the decision of the Committee for Privileges; therefore I beseech your Lordships to inquire into the matter, and to ascertain whether we are right in asserting that there is not a second Earldom of Mar in the Peerage of Scotland. I must remind your Lordships that this House, in 1883, nearly succeeded, but not quite, in passing into law a Bill introduced by Lord Selborne, then Lord Chancellor, called the "Scotch Representative Peers' Bill," by which he proposed to abolish the time-honoured Roll of the Peerage of Scotland, the Union Roll to defy the Treaty of the Union, of which it formed a part, and to substitute for it a list of Scotch Peers, not Peerages, and to stop all protests at Holyrood. When this Bill was examined, it was found that it would adversely affect me, and me only. It sought to remove from the Roll the Earldom of Mar I had inherited, and at the same time to enable Lord Kellie to vote as Mar, without his holding any Peerage of Mar. The Bill passed this House; but on the matter becoming understood there was a strong feeling that the Bill was unjust as well as unconstitutional, and it went down to the other House (I may say) in disgrace, for no less than 81 Peers entered their formal protest against the Bill, terming it "an Act of individual injustice," and the Bill was abandoned. Perhaps the noble Earl, Earl Selborne, may not look back upon his Bill as a measure intended to maintain law and order, for certainly it did not conduce to the dignity of this House and the integrity of the Peerage. It has been suggested that because the late Lord Kellie sat as Earl of Mar in this House, that a writ could have some legal significance in making him Earl of Mar. 1138 Scotch Representative Peers have no writs; and not only that, but Lord Kellie did not sit in this House under an unanimous election as Earl of Mar, for several Peers refused to vote for him, or return him to this House as Earl of Mar, but as Earl of Kellie only. Now, my Lords, if the investigation upsets the decision of the Committee of Privileges, what more can I say, except that if there is no investigation and they succeed in stifling investigation, they are asking the hereditary Peers to use their hereditary vote to maintain a fiction for the benefit of the Earls of Kellie to the detriment of the Earls of Mar in perpetuity; but I will not say perpetuity, for never will that question rest until the truth is acknowledged. Would it not have been far better if the injustice which was done in the first instance of allowing Lord Kellie to vote in right of the title which this House had not given him had been removed in ten weeks instead of ten years? The dignity of this House would not then have been so persistently assailed. If your Lordships will at once sanction the investigation we seek, it will, we assure you, tend to save this House a greal deal of odium and trouble in the future. My Lords, I earnestly ask you to vote for the investigation sought for by Lord Galloway; for it must be obvious to all that no legal tribunal in the world can find a man entitled to an Earldom that has never existed at any time, and which is not to be found among the Peerages of Scotland.
§ THE LORD CHANCELLOR
My Lords, I desire to occupy your Lordships' time by saying but a few words. I share with the noble and learned Earl the responsibility for the Act of Parliament under which the noble Earl who has just addressed you sits in your Lordships' House. I believe that Act of Parliament would never have been passed had it not been supposed that it was with the full assent and consent of the noble Earl, and that it would put an end to a question which was felt to be a very difficult one, and the determination of which was supposed to have inflicted some injustice on the noble Earl. But I am amazed to find. that the noble Earl has made my noble and learned Friend the subject of something like invective. I can only say that throughout the whole of that 1139 investigation the noble and learned Earl was actuated by a strong desire to do what he believed to be justice to the noble Earl, and to procure for him the title, without which he could not now have addressed your Lordships, or have had a seat in your Lordships' House. I do not know what the noble Earl really contemplates as the result of this Motion. It is easy to use such a phrase as "investigation," but what "investigation" does he refer to? Does the noble Earl mean something beside and outside the law? An investigation has taken place, and a determination has been arrived at apart from this Act of Parliament. Your Lordships, as a Court of Appeal, have to decide questions of this kind every day; indeed, we have decided three such questions this very day, and I have no doubt that the unsuccessful litigants are entirely of opinion that the noble and learned Lords who heard the cases were wrong. Is it to be considered one of the privileges of a Member of your Lordships' House, then, that those rights of the unsuccessful, apart from the rights of every other individual, are to be investigated over and over again as long as he and his friends consider that justice has not been done? There must be finality somewhere. I agree with the comment of a noble Lord as to the difficulty raised by the Act of Parliament; but why was the Act not opposed by the noble Earl's friends? There was the remedy. Repeal the Act of Parliament; let the noble Earl and his friends bring forward a Bill to repeal the Act of 1885. Then they would be doing what they have a right to do; but they cannot expect your Lordships' House to disobey the express declarations of the Act of Parliament, and to reprobate that which the Act of Parliament has both enacted and determined, that there may be both an Earldom of Mar and an Earldom of Mar and Kellie. That may be wrong, but that is the result of these Statutes, so passed, so declaring. As to entering now into all the questions which the noble Earl has referred to, why, it is impossible! If they wish to raise this question again they must bring in a Bill to repeal the Act of Parliament, and when that has been done there may be some ground for saying that it ought never to have been passed. As the case stands, however, as long as the Act of 1140 Parliament stands, your Lordships' House and the other House of Parliament has no power known to the Constitution to alter that which has been enacted by statute, and the attempt to do so by the idle repetition of complaints to which no practical effect can be given otherwise than by statute is futile.
* THE EARL OF GALLOWAY
My Lords, we are asked what is our object in bringing forward this Motion. I think we have made it sufficiently plain that investigation is needed in order to see by what right a provision of the Treaty of Union should be upset, and whether Parliament should not continue to accept the Roll of Scotch Peerages sent up to it as authentic in 1707. Parliament is not empowered to over-ride special provisions under that Treaty; and the question is, whether it is right for this House to make an exception in this particular case, and to allow somebody or other to interpolate another Peerage on that Roll. This is an entirely different question from that which has been suggested by the noble and learned Lords. You are interfering with the Roll, and I say you are not to decide whether this Peerage or that Peerage exists. What is put before the Committee of Privileges is this: here is a Peerage, to whom does it belong? But that was not the question which was put forward, because there was no such Peerage existing on the Roll. The Peerage Roll contains but one Mar Peerage, and the holder of the Mar Peerage is on the Roll accepted by this House, as inherited from his uncle in 1866. I ask your Lordships, therefore, not to refuse an investigation when the authenticity of the Roll is not denied, as accepted by this House under the Act of Union of 1707. My Lords, I will no longer detain you, but take the sense of the House at once upon the question.
§ On question that the words proposed to be left out stand part of the Motion,
§ The House divided:—Contents 25; Not-contents 74.
§ Resolved in the negative.
§ Resolution, as amended, agreed to.