§ THE EARL OF MAR had given notice of his intention—
§ To call attention to his Petition, presented on the 18th May, praying for a rehearing of the Mar Estates case, and that he may be allowed his right to plead for these estates as inheritor of the historic Earldom restored in 1824 by the grace of the Crown, as anticipated by the entailing to "the nearest heirs, whether male or female," inheriting that ancient dignity in that line of female descent.
§ The noble Earl said: My Lords, I rise reluctantly to explain to your Lordships why I felt compelled to present a Petition to your Lordships' House on the 18th of last month. In that Petition I prayed for a rehearing of the Mar Estates case, and that I might be allowed my right to plead for these estates as inheritor of the historic Earldom restored in 1824 by the grace of the Grown, as anticipated by the entailers to "the nearest heirs, whether male or female," inheriting that ancient dignity in that line of female descent. I may observe that I shall be very pleased to send a copy of my Petition to any Peers who have not already received it. I regret very much that the Petition is so lengthy, but it was necessary to set forth the extraordinary circumstances surrounding my case. I regret to be bringing the matter forward in the midst of this dreadful war, when your Lordships are so deeply engaged with other serious questions; but it is a duty to myself and my heirs that I should do so now, in order that I should not suffer from the bar of time.
§ I will ask your Lordships' kind indulgence while I place before you very briefly the position. It is well known that my ancestor in 1715, through the fortunes of war, lost his estates. The estates, which were very extensive, were all confiscated and his ancient title was attainted. However, a few years after, by the grace of the Crown, a portion of the Mar estates—namely, the estates of Alloa—were allowed to be bought back by the family for the support of the ancient Earldom. This was followed not many years after—in 1824—by the restoration of my great-grandfather to the ancient dignity, he being, as stated in the Act of Parliament, "grandson and lineal representative of the attainted Earl." 427 This position he held through his mother Lady Frances, which is a very important point in the position I hold. Before this restoration it was necessary that a preliminary Report should be made and presented by the Law Officers (English and Scottish) on behalf of the Crown into the line of succession conveying the dignity. The Law Officers stated, after examining the pedigree, services, etc., that the restored Earl had already enjoyed these estates through his mother Lady Frances, and he was about to be restored to the dignity as his mother's heir. Accordingly, the Act of Parliament of 1824 states in the plainest words that the Earl of Mar was, as "grandson and lineal representative of the attainted Earl," which he was through his mother, restored to the honours of Mar—and his heirs after him.
§ In 1739 these Mar estates at Alloa were entailed for the support of the ancient dignity by Lord Grange, who was a Lord of Session and younger brother of the attainted Earl, and he acted as trustee for the children of his elder brother, the attainted Earl, Lord Grange's eldest son Charles became heir male of the family, but be and his younger brother James were both excluded from the Mar estates by the entail by Lady Frances, the Earl's daughter and heiress of Mar. Lord Grange thus recognised the line of female descent through which every Earl has held the ancient Earldom for now nearly 1,000 years. The entail anticipating this restoration which occurred in 1824 made special provision that all "the nearest heirs, whether male or female," should be obliged to hold the Mar estates with the ancient Earldom in the event of its restoration. This event, as I have said, occurred in 1824 through female succession. I have the honour to hold that title, and in that position I fulfilled all the conditions of the entail, being exactly in the same position as heir through my mother Lady Frances as was my great-grandfather, the Earl who was restored in 1824, through his mother, and who at that time already held the Mar estates at Alloa to the exclusion of the sons of Lord Grange, the Earl's younger brother, who entailed these estates to the exclusion of himself and his heirs in favour of the nearest heirs of Lady Frances, knowing full well that she would inherit and hold the ancient Earldom should it be restored. I am her undisputed nearest heir, and so hold the ancient Earldom.
428§ This is my grievance. I have been persistently denied my legal right, as I maintain it to be, to plead in the Courts of Law for the Mar estates at Alloa in my true legal position as Earl of Mar, although under the Restoration Act of 1824 I am exactly in the same position by birth and inheritance as my late uncle, my grandfather, and my great-grandfather, each of whom held the estates and the restored title as the nearest heirs of Lady Frances, heiress of Mar on the death of her only brother without issue in 1766. My uncle died without issue, and I am his eldest sister's only son. Lord Kellie could not claim the Mar estates as remoter heir male, being excluded in that position by the entail. Therefore he claimed them as more remote heir male of Lady Frances, through whom he can hold no dignities whatever. Lord Kellie holds the Mar title of 1875 in the line of heirs male, but is especially excluded from the estates by the entail.
§ I naturally made a claim for these Mar estates before the Court of Session some years ago. The Court—quite unjustly, I maintain, and in that I have been backed up by a great many Peers and by the Press—though the Court admitted that they had no jurisdiction in dignities, actually compelled my counsel to appear for me as a commoner, though that was some years after my uncle had died and I had fulfilled all the legal forms necessary on succession and had been received by this House as Earl of Mar. I had attended Her Majesty's Court for years in that position, and my wife also in her position as Countess of Mar. The Court of Session gave the decision against me, and they did so, I contend, on wrong premises, because the great point in my case, which my counsel was precluded from urging, was that these estates were entailed on the nearest heirs male or female by Lord Grange recognising the female heirship. I was then obliged to appeal before the House of Lords. I have never claimed the ancient title of Mar because I have been in possession of it all along. I appealed to the House of Lords in the hope that they would not treat me as I had been treated before, but it suited their Lordships again to deny me my legal right and insist on my appearing before your Lordships' House as a commoner. I maintain that a man cannot be a Peer and a commoner at the same time.
§ I submit that my right to claim the family estates in the same line in which I 429 inherited the Earldom of Mar is not prejudiced by the declaratory Act of 1885. That Act was the result of a great deal of pressure put upon the Government of the day by a large number of Peers who supported my position and were very indignant indeed at the denial of my rights. This Act declared that whereas doubts may exist as to the continued existence of the ancient Earldom of Mar this Act is to remove those doubts. In the Committee on this Bill my right to the ancient dignity was traced back and my pedigree carefully examined, and it; was found that there was no weak link whatever, and that I had inherited the ancient dignity through several heiresses from at least the date of Isabel Countess of Mar in her own right in 1404. This Act declared, as I have said, that I had inherited the ancient dignity. It has suited some of my opponents to say that I had a little interest at Court and had an old title raked up for me which had not been held by any one for centuries, but that, of course, is absolutely untrue. My position was confirmed, and I was declared to be Earl of Mar at the time that the Courts wrongfully and unjustly, as I venture to say, wrote me down as a commoner.
§ Doubtless the noble and learned Lord, in reply to me, will say "I am afraid you cannot go on with this because the matter has been heard by the highest tribunal in the land." I am quite prepared for that statement. My answer to it is that I venture to submit that the decisions in the Court of Session and in the House of Lords were given on wrong premises altogether. Indeed, one of the noble and learned Lords who heard the Appeal said that the House had decided that Lord Kellie was Earl of Mar, and that therefore I had lost the title and Lord Kellie had gained it, and therefore the estates must go to him. But I had not lost the ancient title; I was already in possession of it. Therefore this was a misunderstanding on the part of the noble and learned Lord. I may state that I have been obliged to pay the costs of the late Lord Kellie in both the Court of Session and the House of Lords. I must impress upon your Lordships that I do not ask the House to decide the Mar estates question. I only ask to be allowed to plead for these estates in the same line in which I hold the ancient title, and to be allowed the privileges and rights enjoyed by every Peer and by every British subject of appearing in his true 430 legal position, a right which has been persistently denied to me. I ask to be allowed to plead for these estates in the same line in which I hold the ancient Earldom and in which position I have sat in your Lordships' House for now upwards of thirty years.
§ I would defer pressing this matter at present owing to the war, but I repeat that I presented my Petition to your Lordships' House in order to avoid the bar of time, which, as Lord Halsbury once remarked, is most important. I might mention that the late Lord Cairns, whom I had the privilege of knowing, stated emphatically—and it was remarked on in this House by the late Lord Wemyss—that he felt sure there had been wrong done to me, and that he hoped the wrong would be soon rectified. Sir Erskine May, whose memory is so much respected as one of the most distinguished Constitutional lawyers of his time, insisted upon it that had the Committee of Privileges considered the Act of Parliament of 1824 which restored the title through female succession and looked at the Report of Inquiry by the Law Officers for the Crown (which Report they strangely refused to receive), these important documents would have plainly shown that Lord Kellie had no right to go on with his case and his claim to a new and unrecorded title of Mar would have been obliged at once to drop. I thank your Lordships for the kind hearing which you have given to what, I am afraid, must have been a rather dull disquisition.
§ THE LORD CHANCELLOR (LORD BUCKMASTER)My Lords, I am not certain from the form of the Notice which the noble Earl has put on the Paper, nor, indeed, from the form of his own observations, whether he expects any detailed reply to the matter he has raised, but I think it would be an act of courtesy to him, and I think also an act of justice to the Earl of Mar and Kellie, who is the holder of these estates, that I should make a few statements to your Lordships as to the position in which this matter stands. The noble Earl has referred to matters which, of course, are familiar to the whole of this House—the interesting and vivid part which his ancestor played in the history of this country. The matter with which we are dealing is not one of such ancient history as that. It arises in this way.
431 In 1867 a claim was made and considered by the Committee of Privileges of your Lordships' House on behalf of the ancestor of the present Earl of Mar and Kellie to the title of Earl of Mar, and in 1875 the Report of the Committee was made favourable to the claimant, and your Lordships accepted that Report. It may be that the Report was imperfect. Justice does sometimes stumble, and Lord Chancellors sometimes nod. I think that your Lordships felt that there might have been some imperfection in the proceedings, because in 1885 the Act to which the noble Earl has referred was passed which confirmed him in the ancient title of Earl of Mar, far more ancient than the Earldom of Mar which had become associated with the Earldom of Mar and Kellie. Indeed, the noble Earl is to be congratulated on the fact that he is the undoubted inheritor of one of the most ancient and honourable titles in the United Kingdom.
But while this litigation was going on between the Earl of Mar and the Earl of Mar and Kellie there were proceedings in the Scottish Courts with regard to a matter less honourable and more substantial—the estates which had hitherto been associated with the Earldom. I think it was the noble Earl himself who claimed as against the possessor of the estate, the ancestor of the present Earl of Mar and Kellie, that those estates belonged to him, for the reasons he has set out before your Lordships to-day. That claim was heard by the Lord Ordinary and by the Court of Session in Scotland, and was decided by them upon the clear and distinct ground that the true construction of the deed of entail which was in dispute divorced the estates from the title, and that it was a matter of no moment at all what might be the Report of the Committee of Privileges of your Lordships' House as to the title; because whichever way that Report was made, the true construction of the deed, upon which everything depended, was in favour of the person who was in possession of the estates, the ancestor of the present Earl of Mar and Kellie. That judgment was given in 1873, and from that time onwards possession has been enjoyed of that property. It has never been assailed, and the present Earl of Mar and Kellie holds the estate with a title made authoritative and, I venture to state before your Lordships, unimpeachable by virtue of that decision.
432 Now if I gather from the noble Earl's Petition aright—and I have been through it with some care—it is that decision which he seeks to challenge. I say with all respect to the House that your Lordships have at this moment nothing whatever to do with it. I cannot sec how you can possibly consider or do anything whatever to subvert, even if you desire, the judgment of the Court of Session; unless, indeed, proceedings were taken on the Judicial side of this House asking that the time, which would have expired over thirty years ago, should now be extended in order to enable that judgment to be impeached. But it would be quite impossible to imagine, after this lapse of time, that these proceedings should be reopened; and I am sure your Lordships would agree with me that it would be most unfair and unjust to the man whose ancestors for so long had been in uninterrupted and undisturbed possession of this property that the decision should be interfered with. I have entered into this matter only for this reason. I think it is possible to understand the grievance of a man who believes that a Court, with full desire to do justice, has failed to do justice to him. I am sure that the losing litigant must often have that feeling, and it is one for which everybody must have sympathy. But I feel satisfied that nothing could be more dangerous than, out of consideration and sympathy for such a position, to do anything that could impeach or impugn a title which has been held in the circumstances that I have stated, and which has been supported after solemn and careful investigation by the Courts whose real business it is to deal with such matters.
§ LORD JOICEYMy Lords, I have some hesitation in taking part in this discussion, particularly after the Lord Chancellor's admirable speech. But I cannot under stand the principle he lays down, that if a Court comes to a decision and afterwards fresh evidence is adduced there should be no claim made against that decision. So far as I understand the case, the decision was come to when the noble Earl was compelled to plead as a commoner; but the noble Earl having proved his claim to the ancient Earldom is in a different position. So far as I understood what was said by the noble Earl—unfortunately I could not hear much of his speech—I gathered that he considers that as the honour of the ancient Earldom—
§ THE LORD CHANCELLORThe noble Lord is under an entire misapprehension. Let me read to the House what was said by the Court of Session when the decision was given—
The right to the Peerage of Mar—a title of great antiquity—is not directly or immediately involved in this case. Nor has this Court the power of disposing of that question of Peerage succession. It must be decided by the House of Peers. We have only to deal with the pursuer's claim to the estates. At the same time it is not to be overlooked that, on the supposition that the pursuer succeeds, as we must assume that possibly he may, to the title, the effect of a judgment against him in this action would be to separate the estates from the title. It is naturally and forcibly urged that such a separation could not have been intended, and that the deed of entail on which this question turns should be so construed as to prevent that separation and to maintain the connection between the Peerage and the estates. I appreciate the force of this argument. If there were any ambiguity in the voids of destination, the argument founded on the presumption against an intention to separate the estates from the title would be appropriate. But if the words are not ambiguous, such a presumption is inappropriate and must be excluded.
§ LORD JOICEYI cannot attempt to argue with the noble and learned Lord on the Woolsack. It is a question of law, and I presume I must accept this decision.
§ THE LORD CHANCELLORIt is not my decision.
§ LORD JOICEYAt the same time it does seem to me as an ordinary layman that it is an extraordinary thing that, if fresh evidence is adduced and an injustice has been done, the injustice should not be remedied.