§ THE LORD CHANCELLOR
My Lords, I am sorry that I should be called upon to detain your Lordships for some time, at this late hour, with reference to the letter which is referred to in my notice on the Paper; but the matter is of great importance to the persons interested, and I think it has reference to the regularity of your Lordships' House and the proceedings therein. I also think it has very serious reference indeed to the mode of administering judgment in this country. My Lords, before I refer to the contents of the letter, I wish to call the attention of the noble Lords who have signed 1688 it to the concluding paragraph. I should say, my Lords, that this question of the matter with which the letter deals would have been treated of long since, but that the noble Lord who is principally interested in the question requested, in consequence of the state of his health, that the matter should not be brought on before Easter—he being compelled, by the state of his health and that of some members of his family, to be away from England; and he afterwards requested a further delay, that it should not be brought on before Whitsuntide. My Lords, I say this to explain the cause of the delay that has taken place in bringing forward this matter for discussion here. Now, my Lords, I have thought it right,, before giving notice that I should bring this matter forward in your Lordships' House for discussion, to cause a letter to be written to each of the noble Lords who have signed this document, which purports to be a letter addressed to myself. Three or four copies of it have come into my possession; it appears to be a closely typewritten letter of four pages, containing a great number of statements, about which I must say a word presently; but the concluding paragraph is one which appears to me to raise a serious question, and I am anxious that the noble Lords who signed it, who I hope are here present, will give me some explanation as to what it is intended to convey by the paragraph in question. I have given notice, as I say, to each of them—no less than five and forty noble Lords, members of your Lordships' House, who have signed various copies of this document, apparently; and I want to know, from any one of them, if they will be good enough to explain what is the meaning of the concluding paragraph of this letter. My Lords, after reciting statements both of law and fact, to which I shall have to refer in a moment for another purpose, they proceed thus—It is obvious that the matter cannot rest in its present position; therefore, before bringing it forward publicly, and in the hope that it may be arranged so as to cause as little scandal as possible, we venture to ask your Lordship kindly to take the matter into your consideration, and also we venture, in accordance with the suggestion made at the recent meeting of Peers at Stafford House1689 what that refers to I do not know, and no information is conveyed to me by the document in question—to beg your Lordship to be so kind as to advise us as to what steps should be taken to remove this bar to property, which the action of the House of Lords has inadvertently placed to the obvious advantage of Lord Kellie, and to the serious detriment of Lord Mar and his heirs, thus unwarrantably interfering with individual rights.My Lords, that is the concluding paragraph; and with perfect sincerity I am compelled to admit that I do not know what it means. Is it supposed that, speaking of myself in my judicial capacity, I am to give advice to some one of the parties to a litigation as to how they should proceed? I cannot suppose that any noble Lord who put his hand to this Paper could for a moment suggest that an ex parte application should be made to one of Her Majesty's Judges, who would ultimately have to decide some question judicially, to give him advice as to how he should proceed. My Lords, for reasons which I will explain in a moment, I was unable to give the answer that I should give to any such suggestion, if it were made seriously in the sense which I have attributed to those words—namely, that nothing could be more, irregular or improper than to apply ex parte, behind the back of the other side, to a Judge to step in and advise in any way on such a subject. The reason why I could not give any such answer is that the matter is, both by legislation and judicial decision, absolutely concluded, and that no question, no investigation, no further inquiry into the matter, can possibly be had; therefore I could not say that it would come before me as a Judge, because it certainly could not and I was for that reason unable to give that answer. But, my Lords, one knows that from time to time this question has been mooted in this House, and I shall have to read to your Lordships presently the Resolution which stands on the Records of this House upon this subject; and for that reason also I was unable to give the answer that I suggested should be given if a judicial matter was brought before me for advice by one of the 1690 parties. But, my Lords, I want now to ask another question of any of the noble Lords who are here and have signed this Paper. I find in it a great number of statements of fact and of law which, according to my view, are absolutely inaccurate. I do not say whether they are wrong—I only give my opinion upon the matter—but I think they are. And what I ask is: Do the noble Lords who put their names to this document, the five and forty of them, mean to suggest that they have investigated these facts for themselves and come to this conclusion? I am aware that, on a former occasion, the noble Lord, I think, rose in his place and said that it was a mistake to say that the noble Lords had pledged themselves to the various facts and statements, either of law or fact, that were therein contained, and that all that they intended to imply by their signatures was that the matter required investigation. Whether that proposition was a good excuse in that case or not, I cannot say; but it certainly is not applicable to the present document which I hold in my hand; because this is addressed to me under the signature of those five and forty noble Lords. They say, "We find"; and then they proceed with a variety of statements with which, as I have said, I am unable to concur. Now, my Lords, you will see at once that there are two things which are dealt with in this Paper. One is a question of principle; and, as your Lordships will have gathered from the concluding paragraph that I have read, it is said that some great injustice has been done to the noble Lord. Let me assure the noble Lord that what I have to say on this matter is conceived in no spirit of hostility to him. I can well understand and appreciate the fact that he, in common with every other litigant who is unsuccessful, is under the impression that the tribunal which decided against him is entirely wrong; I assume that that is the sincere state of his mind. But it is new to me that any litigant whatever, after a matter has been adjudicated finally by the final Court of Appeal, can ask again and again to raise the same question. Let me, in the first instance, apply myself to the question of the property 1691 That, my Lords, depended upon the construction of a written instrument. It came before the Lord Ordinary in Scotland; it then came on appeal before the Judges of the Court of Session. Both of those tribunals unanimously pronounced in one direction. It then came before your Lordships, sitting as a Court of Appeal—the final Court of Appeal in this country; and, by an equally unanimous decision of this House, the decision of the Lord Ordinary, and the decision of the whole Court of Session of Scotland, were affirmed. Now, in that condition of things, I do not know what privilege there is on the part of any noble Lord, a member of this House, any more than on the part of the humblest of the Queen's subjects, to raise again a question that has once been judicially decided; and I think it would be a most serious and important question if such a matter could be entertained for a moment. My Lords, I am aware that in this Paper, it is said—and I think most inaccurately said—that the noble Lord was precluded from urging his claim as he otherwise might have done, because he was not at that time permitted his right to call himself, and to claim the privileges of, the Earl of Mar. My Lords, such a question was absolutely irrelevant to the decision. The decision proceeded on the construction of a written document, and whether the noble Lord called himself by the title which he now, under Statute, enjoys, or whether he was only pleading in the Court as a commoner, was absolutely and entirely irrelevant. The unanimous decision of all the Courts in Scotland has been confirmed by the unanimous decision of your Lordships' House, and under no circumstances is it possible to raise the question again. My Lords, I will confine myself for a moment to the question of property, and I do entreat the noble Lords who have signed this document to ask themselves whether it is calculated to aid in the administration of justice, or in maintaining the dignity and position of your Lordships' House, that because a litigant is a member of your Lordships' House, he should be permitted to raise again, by a discussion, apparently, in this House, in its legislative and deliberative 1692 capacity, questions which have been finally decided by the final Court of Appeal? My Lords, I now turn to the question of title. That there were difficulties about the question of title there is no doubt. A great many people were under the impression that the noble Lord had not received what was justly due to him, namely the title and honours which he now possesses and enjoys; and accordingly, in order to get rid of the difficulty that was felt by himself and other persons, an Act of Parliament was passed on the subject, and that Act of Parliament is absolutely final so far as litigation can go. I am not aware of any greater power in this country on such a question; it is absolutely and finally determined. Then, my Lords, what remains? If the noble Lords who signed the Paper ask me publicly in my place in Parliament what is the mode by which they should proceed, my answer is very simple: Repeal that Act of Parliament; proceed in due course of law before the Courts on a question of litigation, and take the final decision. If you want to get rid of what an Act of Parliament has done, you must repeal that Act of Parliament. Therefore the answer is a very simple one; and in that form let the noble Lord, or some person who is interested on his behalf, prepare a Bill and bring it in; and then that question, which he thinks was erroneously decided by the Statute that has been passed upon the subject, can be properly debated, and if it should please Her Majesty—for Her Majesty's prerogative is included also in this transaction—that matter can be deliberated again. But, in the meantime, the question of title having been finally decided by Statute, and the question of property having been decided by the last tribunal in this country, it appears to me that such a letter as I have pointed out, about raising the question with as little scandal as possible—using the language of the document itself—and that something should be done to alter what has been finally decided, both by the Legislature and by the Courts of Law, is entirely inappropriate. My Lords, I have mentioned also that this question has already been raised in this House, when the noble Lord, Lord Galloway, 1693 moved a Resolution; which was met on the 1st July, 1889, by an Amendment moved by my noble and learned Friend (Lord Selborne), who is near me, which is in these words, and which now stands upon the Records of your Lordships' House:—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 recognised 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.That Resolution, I say, was passed, and stands on the Records of your Lordships' House; and under those circumstances I do venture to ask noble Lords whether it is consistent with the respect due to a Resolution so passed that such a document as I have referred to should be presented to me for my advice and assistance in order to raise this question again. My Lords, I have made this statement, and I do assure the noble Earl who is principally interested that it is with the most hearty sympathy that I have felt it my duty to say this. I am sure he thinks he is ill-used, and, for all I know to the contrary, he may have been; but what I venture to point out to him, as I would to anybody who is disappointed in litigation, is that he must acquiesce in the decisions of the Courts of Law, and that when once the decision of the final Court has been reached there is no appeal.
§ LORD HERSCHELL
My Lords, I should like just to add a word only to what my noble and learned Friend has said. I can assure the noble Earl opposite that he is labouring under a complete misapprehension in supposing that the decision which determined the question of Privilege—which of course is a question in which he is deeply interested—was in the slightest degree affected by the question which was determined on by the Committee of Privileges, and afterwards affirmed by this House. Supposing that that decision had been the 1694 other way, supposing that the Committee of Privileges had found against the Earl of Mar and Kellie in his claim to the Earldom of Mar, the fact that they had done so would not have been a bar to his proceeding to obtain a declaration of his right to the property, and the decision of this House would have been precisely and absolutely the same. It is always difficult, I know, to persuade those who entertain a strong view about any question that nearly concerns themselves; but I am quite sure the noble Earl will believe me when I say that in saying this my sole desire is, if possible, to disabuse him of the impression that, as regards the question of property, any mistake, if a mistake was made, in the previous decision as regards title, can have in the slightest degree prejudiced him. The question of property was determined upon different considerations from those which had issue in the Peerage case; and, as I have said, if the claimant in the Peerage case had been unsuccessful, the decision of the Courts and of this House must have been the same. Under these circumstances I think the noble Lord will see that nothing really is to be gained by the continuance of this controversy. As regards the question of the Peerage, he enjoys now the ancient Earldom under undoubted right, for it has been confirmed to him by Act of Parliament. As regards the property, the decision has been against him—no doubt unfortunately for him—of the Courts and of this House; and that he has no means of altering; because I am quite sure that this House would never dream—nor would Parliament ever dream of altering by legislation—and that is the only way in which it could be altered—in favour of one of two litigants a decision of this House in favour of the other; it is a matter of absolute impossibility; it has never been done; it never could be done, if, therefore, I could only persuade the noble Earl that he is dissipating energy, really, on a hopeless endeavour, I should, I am quite sure, have done him the best service that anybody could possibly render him.
§ *THE EARL OF SELBORNE
My Lords, I have been much more frequently called upon than I could wish 1695 to advise this House on questions connected with this subject; but I can assure the noble Earl opposite, and all your Lordships, that in anything which I have at any time said or done—and I am sensible that it has been in some quarters misconstrued—I have never had anything whatever in view but the honour and dignity of your Lordships' House, and the duty which I conceived to be incumbent upon those who occupied the position which I have had the honour of occupying, namely, to maintain the ordinary course of the administration of law, including the authority of the decisions of your Lordships' House in Committee of Privileges on the subject of claims to Peerages. My Lords, with regard to the property, it fell to my lot to be one of those Lords who had to hear the arguments in that case, and to take part in the decision; Lord Cairns was another, and Lord O'Hagan was a third. In the argument, some question was suggested as to an intention of the creator of the entail of the property to unite it with the Peerage. In the view of Lord Cairns and of myself, there was no foundation for that argument, as affecting the question under appeal, and I am satisfied that neither Lord Cairns nor myself so much as referred to the title to the Peerage in deciding that question. As the matter had been argued, it was noticed, I think, by our noble colleague, Lord O'Hagan, who said that if that point were material, or something to that effect, the right to the Peerage held by the Earl of Mar and Kellie had been established by this House, and that, in his opinion, from that point of view the case would not have prospered more than from any other. But I can assure the noble Earl that in the opinion of every one of the Lords who decided that case, and also, as I understood, in the opinion of both branches of the Court of Session of Scotland, the right to the property was clear, without any reference whatever to the Peerage.
*THE EARL OF MAR
My Lords, I must first express my thanks to the noble and learned Lord on the Woolsack for his good nature in allowing this matter to be postponed on account of ray absence abroad; and I must next regret the absence, through death, 1696 of several noble Lords who signed this letter to the noble and learned Lord. I may safely say, at the outset, that this is one of the gravest matters that have ever come before your Lordships; it seriously affects the dignity of this House and the integrity of the whole Peerage—not only of the Peerage of Scotland but of the whole Peerage—which has been violated by the action of this House, and by most of the members of this House in perfect ignorance of the facts which have caused that violation of the integrity of the Peerage. It has also affected, as I maintain and am prepared to contend, and I am sure my heirs after me will contend, in a most serious way the rights to the property enjoyed by my ancestors in the same line through which I maintain that I am entitled to the property, under the entail made by my ancestors, for the express and admitted purpose and determination of providing for the ancient Earldom of Mar attainted in 1715, and restored, emphatically and explicitly through female succession, by Act of Parliament, in 1824, and which has devolved upon me under that Act. I have a copy of the entail here close at hand, every word of which I published; I like every word that I say to be known on the housetop—the whole of the entail is public property, while my opponents try to hush it up and to stifle all investigation—and that being the case, with the entail before me which I could read, but from which I will only quote a short passage from memory, I say that it is absolutely impossible that the entailers could have intended the Mar Estates of Alloa to have devolved upon my opponent the Earl of Kellie. I say that with the most perfect confidence, and will quote as follows:—The entailers (foreseeing this restoration of the ancient Earldom of Mar through the female succession in 1824) expressly provided that the heirs male and female who succeed to these estates under this destination shall, in case the attainder of the Earldom of Mar be reversed, hold the ancient dignity of Mar.They anticipated this restoration of 1824 in the plainest language, and went on to say:—This right shall always and unalterably fall and pertain to the nearest heir.Now Lord Kellie does not even claim to be the nearest heir. My Lords, it is 1697 but right that I should explain to you in a word that Lord Kellie does not claim these estates as heir male, as it has very generally been given out that he does. If your Lordships will take the trouble to read the entail for yourselves, and also the judgments of the Courts, you will find that Lord Kellie is obliged to put a construction on the entail that it is neither for the Earldom of Mar, alleged to have been given to him and confirmed by this House in 1875, as a title restricted to heirs male, nor for the ancient Earldom of Mar, through female heirship, in right of which I have now the honour to address your Lordships. I say therefore: Is it right, in the face of that construction of this entail, which ought to be perfectly public and ought to be before your Lordships' House, that Lord Kellie should be possessing these estates? My Lords, the noble and learned Lord on the Woolsack and two noble Lords opposite have been good enough to say that they consider that there has been no bar to my rights owing to the construction put on the entail by the decision of the Court of Session and the Court of Appeal. Now, my Lords, I beg to express a very different opinion. With all deference to their Lordships, I say that the bar is a very serious one, and that it has been caused by a perversion of the determination of the entailers. The Courts have adjudged these estates on the ground that I was a commoner. Now a man cannot be a commoner and a Peer at the same time, and I was a Peer when the case was before the Courts. There was an Act of Parliament passed in 1885, which has already been mentioned and which it will be my duty to refer to. Under that Act, which could not make me Lord Mar, it was declared that I had, in 1866, on my uncle's death, already inherited this Earldom through a long line of ancestry from early days. But, my Lords, I am independent of that Act. I stand here under the Act of 1824, which has been ignored and evaded by this House. That Act of 1824 assures me of my rights through the female succession; and I say that it is a very great indignity to this House that that Act should have been ignored and evaded. My 1698 Lords, what did the Committee of Privileges say with regard to that Act in 1875, on Lord Kellie's claim? The late Lord Chelmsford said, with reference to this explicit acknowledgment of the succession through female descent, that "it is an accurate description of his title without reference to the course by which it was derived." My Lords, I venture to say that that is in plain words nonsense. The late Lord Redesdale said that the Act could not be held to have any application to the matter, and it was not inquired into. Now, my Lords, there is a very serious point connected with that. The late Lord Redesdale must have been under a very serious misapprehension—I am afraid it was something rather worse—when he said it was not inquired into. What do I find? There was a Report of Inquiry by the Law Officers of the Crown preliminary to the Act of Parliament, and on which the Act was confessedly constructed, though the late Lord Redesdale said that there was no inquiry made. This inquiry and Report of 1824, which I hope your Lordships will order to be presented to this House, on which this Act was constructed, distinctly shows that my uncle, whom I succeeded in 1866, and his father and grandfather, succeeded as the heirs of Lady Prances, the daughter of the attainted Earl. The Report and the Act rest this restoration upon the fact of the female descent! Now, Lord Kellie claimed by a restriction to heirs male; and yet that Report, signed by the Law Officers of the Crown, declaring the Restoration to be through female heirship, was treated as waste paper. When this Report came before your Lordships' House in 1875, it was ignored and evaded and rejected as evidence, although, my Lords, the same three Lords on the Committee, who sat on the Nairn Peerage case shortly afterwards, accepted an exactly similar Report to that which they rejected in the Mar case on Lord Kellie's claim. My Lords, why are these things to be? Why should an Act of Parliament, and the opinion of the Law Officers which support my rights be scattered to the winds in your Lordships' House, either in Debate or when the matter is before the Committee 1699 of Privileges? It seems to me extraordinary that the interests of one individual should be bolstered up by evasions and distortions, while the Restoration Act of 1824, under which my uncle and his ancestors held the title of Mar, should be scattered to the winds, as well as the opinion of the Law Officers of the Crown, which distinctly declared that the estates as well as the title, to the exclusion of the heirs male, had been transmitted to the heirs of the Lady Frances—thereby putting Lord Kellie, if I may use a common expression, out of the field. My Lords, I must allude to one authority whom all of your Lordships will respect very much indeed—I refer to the late Lord Farnborough, whom I had the privilege of knowing very well as Sir Erskine May. He told me again and again that it was all very well for the House of Lords to try and ignore the fact, but they never could get over the fact that the 1824 Restoration Act, which was passed by the Crown, Lords, and Commons, effectually put Lord Kellie out of the field if it was given the weight that it was entitled to, and that it substantiated my rights to the ancient Earldom of Mar. My Lords, this was long before 1885; and I think Lord Farnborough was as good an interpreter of Acts of Parliament as anyone else — indeed a good deal better—and as we all know he was the greatest authority on constitutional law. Now, my Lords, the Preamble of that Act of 1824 states that "whereas he was the grandson and lineal representative through his mother" therefore he was restored. Another authority, Sir Peter Maxwell, in his work on the interpretation of Statutes, says that the Preamble of an Act is to represent the meaning of it. My Lords, I will pass on from the Act of 1824, pausing only to say this. I am reminded that, when this Act of 1824 was brought before a Committee of your Lordships' House on the Bill of 1885, the noble and learned Lord who has gone out of the House (Lord Selborne), who was then in the Chair, actually got this Act of 1824 rejected. That is the way in which Acts of Parliament have been treated when they go against 1700 Lord Kellie and when they support my rights.
*THE DUKE OF RICHMOND AND GORDON
My Lords, I rise to Order. I do not offer any opinion upon the merits of this case; but I really do not think that the noble Lord behind me has any right to impugn the character and conduct of Lord Selborne in the way he has now done. Lord Selborne has told your Lordships very plainly the course which he took and which was taken in this House; and for the noble Lord behind me to say that Lord Selborne got an Act of Parliament set aside, because it was in Lord Mar's favour and against the noble Lord who was contending with him for the title, is a line of conduct which I do not think your Lordships will consider ought to be pursued.
*THE EARL OF MAR
In reply to the noble Duke it is but fair to me that I should recall, in as few words as I can, the action of the noble and learned Lord who has left the House (Lord Selborne) with regard to me. It is but a very short time ago that his Lordship got up in his place and said that he bad received a letter from the Earl of Kellie asking him to advocate his cause—"an appeal," his Lordship said, "which I could not resist." I venture to say that it was very extraordinary conduct for a noble and learned Lord, who has been Lord Chancellor, and whose duty I conceive it may be to sit on a judicial question still, to get up in this House and say that he is advocating the cause of one individual and throwing the whole weight of his influence and the very great weight that attaches to every word that he says in favour of one litigant!
§ THE LORD CHANCELLOR
My Lords, I am afraid I must interrupt the noble Lord; he is, unintentionally I have no doubt, misrepresenting my noble and learned Friend who is absent. All that Lord Selborne did on that occasion—it was on a former occasion, long after the judicial decision had been arrived at—was this: the matter was brought forward by the noble Lord, Lord Galloway, and Lord Selborne said that he had received a letter from Lord Mar and Kellie, who was at that time a minor and not a member of your Lordships' House, 1701 and, therefore, was not able himself to answer the noble Earl who is addressing your Lordships now; and Lord Selborne said that as, under these circumstances, Lord Mar and Kellie was unable to appear himself, he had been appealed to to give his version of what the noble Earl is now discussing, and which without Lord Selborne's advocacy, or whatever phrase was used, might, according to the view of Lord Mar and Kellie, not have been represented in this House. I wanted to correct the noble Earl in what he appears to be representing—that Lord Selborne, in his judicial capacity, ever uttered any such phrase.
*THE EARL OF MAR
I am obliged to remind your Lordships of the action of Lord Selborne, who has left the House; because he made a remark of which I took a note just now. His Lordship said that he had never done anything but to uphold to the best of his ability the dignity of this House, and to maintain law and order. Now, my Lords, I venture to think that it is not exactly maintaining law and order and upholding the dignity of this House to have brought in, as his Lordship did when he was Lord Chancellor, a Bill, called the Scotch Representative Peers Bill, but which was a Bill really framed with the object of altering the time-honoured Union Roll, scattering to the winds the Treaty of Union, and making a list of Peers instead of Peerages; and, when it was narrowed down to its true intent, the noble Lord was obliged to get up in his place in his defence and say that he had been very seriouslv misled in the framing of that Bill. But it was found that the Bill was for the sole purpose of, I must say, bolstering up the title of Lord Kellie, which is widely known all over the world to have been an official fiction of 1875, and never to have been among the Peerages of Scotland; and it never can be among the Peerages of Scotland, because, by the Treaty of Union, the Grown, Lords, and Commons are precluded from creating a Peerage of Scotland, which in this case is attempted. The Bill was accepted by your Lordships unwittingly. But, my Lords, what happened to this Bill of Lord Selborne's in 1875? I am bound 1702 to say that, with the great weight attaching to the position of the noble and learned Lord, especially as Lord Chancellor at the time, it passed through your Lordships' House. But what happened immediately after? This Bill was protested against by no less than eighty one Peers—a most unusual event to happen—and I trust such a thing will never happen again, that this House should be so disgraced by that noble and learned upholder of law and order! It went down to the other House protested against by eighty-one Peers as "an act of individual injustice" against me, and the Bill was perforce withdrawn. My Lords, what did the late noble and very learned Lord Crawford and Balcarres say in his great work on the Earldom of Mar? He said that "Lord Selborne's views were fatal to the whole Peerage of Scotland, if not to the Kingdom of Scotland itself." (Vol. ii., p. 294). You must admit that no one has ever given such attention to the matter of Scotch Peerage Law as the late Lord Crawford, who, although he was a layman, was really in intelligence, cultivation, and knowledge one of the greatest Peerage lawyers of the day. My Lords, I think it does not come very well from the noble Lord, Lord Selborne, to say that he has been consistent in endeavouring to maintain law and order and to uphold the dignity of the House. Now, my Lords, it is my duty to allude to the Bill of 1885. That Bill was produced under very peculiar circumstances; it was led up to, I may say, by the voice and opinion of public feeling among Members of this House that I had suffered from great injustice. They addressed a Petition to the Queen, which Her Majesty received most graciously, and it is an open secret that it was Her Majesty's wish that the matter should be put right, and that I should no longer suffer from the denial of my rights which I already inherited under the Act of 1824. More than one hundred Peers who addressed that Petition, to the Queen declared most emphatically that I was already Lord Mar by the laws of my country. My Lords, I did not need the Act of 1885, but my friends on my behalf advised me, and I reluctantly 1703 acquiesced, to avail myself of that Bill as a means of getting this House out of a dilemma and difficulty through the continued recognition of Lord Kellie as Mar.
My Lords, is the noble Lord in Order in calling the Earl of Mar and Kellie the Earl of Kellie?
*THE EARL OF MAR
My Lords, what did Lord Mansfield, who I am sorry not to see in his place here, say some time ago? Very soon after the decision of the Committee of Privileges, Lord Mansfield got up in a House of 160 Peers, including the three noble Lords who formed the Committee of Privileges, and who, I must say, fabricated this title for Lord Kellie, and he said fearlessly before this House that "there was not a scrap or tittle of evidence for this new creation which you have conceded to Lord Kellie"; and then he went on to say that "the noble and learned Lords who wrote their judgment must have taken great pains, because to write a judgment with all the facts against you must be a difficult thing to do." If Lord Mansfield was in order in addressing the House, including the noble Lords who formed the Committee themselves, in such powerful and forcible language, I venture to say that I am quite in order in what I say, and that it is for the noble and learned Lord on the Woolsack to call me to Order if he thinks fit. My Lords, I am detaining you to a late hour; there is not much time for all I wish to say. It has been very generally stated that I accepted that Bill of 1885 as a settlement of the question. To that I must give the most complete and emphatic denial. As the hour is late, I cannot venture to read, but I beg to refer your Lordships to, a letter which was printed in the paper Piccadilly last week, and which I recommend to your Lordships' notice, stating that, so far from accepting that Bill, I looked upon it as a very ambiguous advantage to me. I am deeply grateful to Her Majesty for Her wish that some such method should have been adopted, because it was felt that the tardy recognition of my rights, unjustly withheld for ten years, and causing this bar to the property that I refer to, should no longer exist. Therefore I expressed my acknowledgments from 1704 that point of view. But the Bill contained provisions which I believe were drafted by the noble and learned Lord, Lord Selborne, because he confessedly took charge of the Bill before and afterwards in the House—there is a provision in that Bill that Lord Kellie should vote as Earl of Mar, "the Decreet of Ranking and the Union Roll notwithstanding." My Lords, is it respect for law and honour, and upholding the dignity of the whole Peerage that a provision should be made in a Bill, brought in ostensibly as a measure of tardy justice to me, and yet especially to provide that Lord Kellie, another individual, is to vote in a place different from what he had voted in for ten years? If his title of Mar has any solid foundation, why cannot it stand on that foundation, without all this tinkering and tampering with the position of the Earldom of Mar on the Roll accepted as "authentic" at the Union? For ten years he appropriated my place, and voted under the ancient title, through female succession, through a chain of seven ladies; and yet, under the title that your Lordships' House conceded to him in strict male succession, he actually voted in that place for ten years. After that, he has been voting in another place. All the other Peers of Scotland, when they go to Holyrood House, vote in their place in the Roll; they do not vote in one place and then in another. At the election at Holyrood, all the Peerages are put down in their proper places, without dates; but they now call this alleged title of Mar that Lord Kellie assumes, which never has been on the Roll, and never can be, with an assumed date, 1565, after it. Is it not against law and order, and the dignity of the Peerage, which the noble and learned Lord says he has done nothing but uphold, that Lord Kellie's title should rest on such a shallow and shadowy foundation? And, my Lords, he did not pretend to vote under the decision of this House, because he voted directly against it. This House decided that he was entitled to the Peerage of 1565; yet he went against it, and voted under the old title. Now my noble Friend near me will have something to say with regard to the voting at 1705 Holyrood; but, before I conclude, I must say that I think it is very extraordinary that the Act of 1824, and the Report of the Law Officers of the Crown, on which that Act proceeded, should be evaded by your Lordships' House. I must also say, with all respect for the noble and learned Lord on the Woolsack, that I think he has failed to answer the two points of the letter—namely, Was not the title of Mar assumed by Lord Kellie as a creation of 1565, under attaint in 1715; and has it ever been restored? I venture to ask the noble and learned Lord, as this letter has been brought forward in this public way by his Lordship, if he will be kind enough—I speak on behalf of the forty-five Peers who signed the letter as well as in my own interest and that of my heirs, and in the interest of the integrity of the Peerage—to put in writing his definite reply to the letter. Does he consider that the title of Mar, conceded to the Earl of Kellie in 1875, and restricted to heirs male has, if it, ever existed, ever been restored: and if so, how is it that the Act of Parliament never mentioned it; because the Act of 1824 mentions only one Earldom of Mar, which your Lordships' House has distinctly acknowledged has been transmitted to me? I say, if it was created in 1565, it was attainted in 1715, and it must either have been restored or not by the Act of 1824. If it has been restored, I hope that Bill of Restoration will be laid on the Table of your Lordships' House, so that your Lordships will see the exact position on which the alleged title of Lord Kellie of 1565 stands. If it cannot be produced, there is only one conclusion to be drawn—namely, that the title never has been restored at all because it never existed.
*THE DUKE OF RICHMOND AND GORDON
My Lords, I am really loth to interrupt the noble Lord, but surely there is no Motion before the House. The noble Lord is making a long speech about nothing. Nobody has moved anything. The Lord Chancellor has explained to us what he has done with regard to the letter that he has received, and the noble Lord is now going over the whole of this case again, when really there is no Motion 1706 before the House. I think your Lordships ought to decide whether it is proper that this discussion should continue.
*THE EARL OF MAR
One single word more, as it is so late in the evening. I am happy to say that it is beginning to be understood very widely that the Mar case is a question of property, and that Lord Kellie's assumption of a title of Mar has caused, and still causes, a bar between me and my estates; and I venture to trust that it will be unnecessary that the matter should be taken up vigorously in other quarters, and that your Lordships will uphold the dignity of the House by moving that there should be an investigation into the whole matter, which would tend to terminate the odium that has attached to the House so long, and remove the bar which exists, and the grievous wrong from which I still suffer through my having been prevented from claiming, in the course of law, as Earl of Mar, my estates, which, by the entail, are entailed upon my Peerage.
*THE EARL OF GALLOWAY
My Lords, some of your Lordships, whose faces I recognise before me, are aware that, as at the present moment, I have not always been fortunate in the hour when I have brought on a Motion, cognate with that on the Notice Paper in your Lordships' hands. But I wish to assure your Lordships that on this occasion I really have no intention and no desire to keep you for any length at all; and I think, if you will bear with me while I read just two or three lines of this protest, you will understand why it is that I have felt it my bounden duty, under the Treaty of Union between the two countries, entered into in 1707, to bring this Motion before you. By the provisions of that Treaty of Union, you are bound to hear the protest that I made at the election under Royal Proclamation by Her Majesty's command at Holyrood House, and it is the business of the Lord Clerk Register, whoever may officiate in that position, to accept that protest, and at any rate not to stifle it before he oven knows one word in the protest. That is his duty, ratified especially by the Act of 1847, which I know is an Act specially entitled "to 1707 correct abuses." Now I think it is very unfortunate that my noble Friend, for whom I have always entertained great regard, the noble Duke the Lord Clerk Register, whom I hoped I should have seen in his place on this occasion, is not here; because I do think he was most ill-advised on the occasion—I am quite sure it was not by either of the officiating Clerks on the right and left of him, for I am certain that if he had appealed to them for advice he would have got good advice. It is not for me to say, though I think I could mention it, to whose very foolish advice he gave way; and in consequence did that which I say under the provisions of the Treaty of Union, confirmed again in the year 1847 by a fresh Act of Parliament, was utterly illegal. My request at that time was a most legitimate one to the Lord Clerk Register—to receive from my own hand the protest that I held in that hand. I pressed him, at the same time, to follow the Act of Parliament, by transmitting it to the Clerk of the Parliaments for the knowledge of the House, and that the House might deal with it. Having been precluded from my right in that way, I now ask your Lordships' permission to allow me to hand in this protest which I signed on the 7th December last, three days before our meeting at Holyrood House, on account of being ill at the time, and not expecting to be able to attend. Happily I found myself better, and was able to attend; and therefore I wished to present it in person, which is the usual way if a Peer can be present on the occasion of a Convention of Scotch Peers by Royal Proclamation. Having been unable to induce the Lord Clerk Register to receive it, I hope I shall meet with your Lordships' acquiescence if I now hand it in to the Clerk at the Table; and it will be for your Lordships to say whether you will have it printed, which I should think would certainly be a matter of satisfaction to the House, in order that you may see what is in it. I should have ventured to read it if it were a little earlier. I am quite sure there is not one single word in it that cannot be borne out, and in very appropriate language. I cannot, of course, press my three Resolutions upon your Lordships 1708 under the circumstances of the late hour; but I do say this: that I am quite confident that had you heard the words of the simple protest, you must have come to the conclusion that my three Resolutions were a simple corollary to the protest, narrating the effect of the various provisions of the Treaty of Union, and especially that the only one title of Mar in the Peerage of Scotland, as certified to this House in the year 1707, was what is termed the ancient Earldom descendible in direct line from Isabel Countess of Mar. 1404. I thank your Lordships for having heard me, and I hope you will permit me to hand in this protest to the Clerk at the Table.
§ THE LORD CHANCELLOR
My Lords, if the noble Earl moves that, I am sorry to say I feel it my duty to move your Lordships that the Motion be not accepted, and that the noble Lord be not permitted to hand that protest in. My Lords, this matter has been the subject of constant debate, and I believe some unpleasant scenes at the elections in Scotland. The Lord Clerk Register has been good enough to favour me with his view of the grounds upon which he rejected the protest, and they seem to me to be very well-founded and good grounds in law. A protest may mean nothing, and very often it is said that a person may protest and may do no harm, because a protest effects nothing; and I believe some noble Lords have been induced to fall into that view, because they did not understand what the meaning of a protest was at these proceedings in Scotland. That is not quite accurate as applicable to the proceedings there. A protest on that occasion is supposed to have some operation as an appeal for redress to the House of Lords.
§ THE LORD CHANCELLOR
The noble Lord assents to that view, that a protest has a different operation there from what is generally ascribed to it, namely, that as long as the matter was in debate it could be received.
§ THE LORD CHANCELLOR
The matter of privilege—namely, the order in which the Earl of Mar should be called. As long as that matter was in debate protests were received. But the Lord Clerk Register was of opinion—and I, for one, think he was absolutely and entirely right—that, to proceed in taking those steps towards the redress of some irregularity in the order of the noble Lords who were then called would be in the face of the Act of Parliament, being entirely inconsistent with the clause of the Earldom of Mar Restoration Act, 1885, which clause is in these words—From and after the passing of this Act the Earldom of Mar hereby restored shall be called at all elections of Representative Peers for 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 one thousand five hundred and sixty-five.As I understand, the Protest was against that proceeding, and the Lord Clerk Register was of opinion—and I think he was right,—that to receive the Protest, as a step towards a proceeding in this House in the face of the Act of Parliament, would be irregular and improper; and for those reasons I move the House that the Protest now sought to be handed in by the noble Lord be not received.Moved, "That the Protest refused acceptance at Holyrood House by the Lord Clerk Register on 10th December, 1891, and now offered for presentation to the House by the Lord Stewart of Garlies (E. Galloway), be not received."—(The Lord Chancellor.)
THE EARL OF GALLOWAY
May I have one word? I am afraid I cannot have made myself very clear. [Cries of "Order!"] I think I made it clear to your Lordships that I was not allowed to say one word as to what my Protest was to the Lord Clerk Register. [Repeated cries of "Order!"]
*THE EARL OF GALLOWAY
I am explaining. If any noble Lord says I did say that before, I am afraid I 1710 must have been misunderstood; but I will not press the question now.
*THE EARL OF MAR
The noble and learned Lord has read the provision in the Act with regard to Lord Kellie voting as Earl of Mar in that place. That, my Lords, is the reason why a great many Peers have thought it right to protest at Holyrood; and I was one of those Peers whose Protest was not looked into; therefore how could the Lord Clerk Register know what was in it? He does not know what I said and what I did not say. A great many Peers, I say, felt it their duty to protest at Holyrood against the violation of the Treaty of Union, and the Decreet of Ranking, by going through the farce, as I must call it, and the pretence that there is a second Earldom of Mar, and that Lord Kellie can vote under it, which of course is laughed at throughout Scotland, where everybody knows that the title never existed and never can be on the Roll. My Lords, it has been said by the other side that the Act of 1885 prohibited Protests. I venture to say that if your Lordships look through the Act you will find that there is not one word in it to prohibit Protests; on the contrary it has opened the way to Protests; it is because of that provision that noble Lords have felt it their duty to protest. What does "Robertson's Proceedings at Holyrood Elections" say? That there is a place provided for Peers to protest, and that if they feel aggrieved they must protest. The noble Duke who presided on the occasion may not agree with the terms of Protests, and may not sympathise with them; and I understand the noble and learned Lord on the Woolsack does not sympathise with them; but I say that that is beside the mark entirely. It has been the custom from 1707 for Protests to be made by Peers who feel themselves aggrieved; and I conceive it is their duty to make them. It is a time-honoured custom for the Lord Clerk Register to receive Peers' Protests, and under the legislation of 1847 it becomes the duty of the Lord Clerk Register to transmit those Peers' Protests to this House. My Lords, has that Act of the Legislature of 1847—which you cannot say is obsolete—been acted up to, or has it 1711 been violated? As I have already said, I should be much obliged if the noble and learned Lord on the Woolsack would be so kind as to give a direct written answer to the letter of the forty-five Peers; and I ask him the plain question: Has the Lord Clerk Register acted in accordance with the Legislature which enjoins that a certain thing shall be done, or has he not done so? The noble Duke who presided was new to the office, and I think he must have been extremely badly advised, and rather sorry that he acted as he did. My Lords, I may say this matter is well known. What did the Scotsman say? Why, it had a leading article, in which it said that the rejection of Protests was illegal. Do you think that such a respectable paper as the Scotsman would, unless it were true, commit itself to a leading article saying that the noble Duke acted illegally, and giving chapter and verse for it? I venture to say that the question will have to be threshed out and answered; and it is only, I think, consistent with the dignity of this House that the whole matter of what is called the Mar case, and the wrongs I suffer, shall be threshed out from beginning to end by a free and open inquiry—free from the heat of debate in this House—by investigation by a Committee or in some other manner.
My Lords, I am reluctant to intervene in this discussion, but I was present upon the occasion of the election which has given rise to the Motion which is proposed to be made by the noble Lord behind me, and I have in my hand the official Minutes of what took place on that occasion; they are in a public document, printed by Order of your Lordships' House, and anyone can refer to it. On Page 4 will be found a clear, succinct, and, in my opinion, accurate account of what took place. It is quite short, and I will read it to your Lordships—During the calling of the Roll, and immediately after the title of the Earl of Mar of 1565 had been called, Mr. W. C. Smith, Advocate, as Procurator for the Earl of Mar, rose and said that he understood that although Lord Kellie was not present he had sent in a signed list.1712The Lord Clerk Register rose and inquired as to the purport of counsel's interruption, and object to be gained.Mr. Smith replied that it was to lodge, as on previous occasions, a Protest against the Earl of Kellie answering to the title of Mar.The Lord Clerk Register said it had been decided by Act of Parliament that the Earl of Mar and Kellie should be called in the position in which his name was on the Roll, and as it would require an Act of Parliament to alter that he must decline to receive any protest.Mr. Smith said the object of his intervention had been misunderstood.Then he made a short speech, and after that—The Lord Clerk Register said he thought this was an interruption of the proceedings. It was impossible to go back on the Act of Parliament, and if there was to be any Protest it must be to the House of Lords.The Earl of Galloway rose and said he hoped the Lord Clerk Register would allow him a word He thought his Lordship had misunderstood the object of the learned counsel. His request, as he (the Earl of Galloway) understood it, was that his Lordship should receive this Protest, as had always, from time immemorial, been done, and forward it to the House of Lords. That was the whole object, as he understood it, of the learned counsel. He thought it would be found that there had never been any objection yet to any Protest of the kind being received. The Lord Clerk Register said he had not thought it right to interrupt the noble Earl in his remarks; being a Peer, he was quite entitled to make them. But he had already said that he must decline to receive the Protest that had been attempted to be lodged.And now, my Lords, comes the decision of the Lord Clerk Register. And here I pause to say that the Lord Clerk Register has communicated with me by a letter that I received this morning, saying that if any allusion was made to his absence he desired it to be explained that he was serving in Scotland with the Yeomanry, and that the interval since the noble Earl's Motion had appeared on the Paper was too short to enable him to get here in time for this discussion. Therefore I can assure the noble Earl that it is through no discourtesy on the part of the noble Duke that he is not here on this occasion. My Lords, it is inaccurate to suppose that the Lord Clerk Register acted without precedent at the recent election. He followed the precedent set at the Election on the 6th January, 1890, when the late Lord Glasgow was Lord Clerk Register, and delivered a written judgment upon the matter terminating in these words— 1713Inasmuch, therefore, as the Protests now tendered are entirely inconsistent with these clauses of the Earldom of Mar Restitution Act, 1885, the said Protests cannot be received or recorded. It could only be minuted that the Protests were tendered, and that they were neither received nor recorded.Now an attempt has been made, I am perfectly sure in good faith, to indicate that that is in contravention of the terms of the Act of 1847. It is not so. I thought that point would be raised, and I have prepared myself upon the subject. The duty of the Lord Clerk Register, as enjoined in the Act of 1847, is to record and transmit all Protests to the House of Lords. It may be observed that the allegation of the noble Earl in his Motion is that that Act enjoins upon the Lord Clerk Register the duty of recording and transmitting all Protests to the House of Lords. Those are not the terms of the Act. Section 3 directs that where any Protest shall be made by any two or more Peers against a claim to vote, the Lord Clerk Register "shall forthwith transmit to the Clerk of the Parliaments a certified copy," not of the Protest, but "of the whole proceedings at such meeting." My Lords, the Lord Clerk Register has done so, and I hold in my hand, and have read from, the Minutes taken on that occasion; and I maintain that, in the course he took, the Lord Clerk Register has acted according to the spirit and the letter of the Act of 1847. And I do not think that the Act of 1847 can be made out, in any way whatever, to lay a greater duty upon the Lord Clerk Register. My Lords, the result of those Protests, if transmitted to this House, would be to lead this House into an inquiry into the matter raised by such Protests. But it has been pointed out—and into that I shall certainly not go—by three noble and learned Lords, that that matter is res judicata, and it is absurd to ask that an inquiry shall be made into a matter which has been directly settled by an Act of Parliament: unless that Act of Parliament is repealed. My Lords, I apologise for having trespassed upon your Lordships' time, and I certainly should not have done so if it had not been, first, that I was present upon the occasion; and, secondly, owing to the absence of the noble Marquess, whom 1714 we Scottish Peers recognise as our leader—an absence which arises from a cause with which every one of your Lordships will sympathise, and but for which I should not have thought it right to intrude myself upon the House.
§ On Question, Resolved in the Affirmative.