THE EARLDOM OF MAR
IN SUNSHINE AND IN SHADE
DURING FIVE HUNDRED YEARS.

THE EARLDOM OF MAR
IN SUNSHINE AND IN SHADE
DUEING FIYE HUNDEED YEAES.
¦WITH INCIDENTAL NOTICES
OF THE LEADING CASES OP SCOTTISH DIGNITIES FROM THE
REIGN OF KING CHARLES I. TILL NOW.
IN REPLY TO AN ADDRESS TO THE PEERS OF SCOTLAND BY
WALTER HMS^RY EARL OF KELLIE, MAY 1879.
LETTEES

THE LORD CLERK REGISTER OF SCOTLAND
(GEORGE FREDERICK EARL OF GLASGO'W, LORD BOYLE, etc)
BY THE LATE
ALEXANDER EAEL OF CEAWFOED AND BALCAEEES,
LOED LINDSAY, etc.

IN T-WO VOLUMES.
VOL. II.

' Thrice is he armed thai hath his quarrel just,'
EDINBURGH: DAVID DOUGLAS
1882.

ANALYSIS OF CONTENTS OF VOLUME II.

LETTER VIL
DECREET OF RANKING AND UNION ROLL.
PAGE
While it has been mentioned cursorily in laat Letter that the Rank
ing of Mar in 1606 proves that it was the old Earldom that
¦was restored, the general subject of the Decreet of Ranking
and Union Roll— the subject of Lord Kellie's special challenge
— is reserved for this Letter. Before entering en my narrative
of facts, I shall state the objections made and conclude by re
futing them. I must also touch on the criticisms of Lords
Chelmsford and Redesdale, -with Lord Redesdale's letters to
the Times and to myself, and Lord Kellie's observations point
ing to alteration of the RoU, . . . . . 1-.3
Section I. — Objections stated.
Quotations from my first and second Protests, . . . 3-6
Objections classified as — 1. General, affecting the trustworthiness of
the Decreet — (I.) That it proceeded ou superficial inquiry. (2.)
That evidence might have been withheld. (3.) That seme of
the precedencies a-warded -were found erroneous. II. Special,
affecting its credit in the case of Mar — (1.) That the Commis
sioners -were ignorant ef the facts, as the evidence before them
related to the territorial fief, not the dignity, and Earl John
suppressed and destroyed documents which, if known, would
have induced the Commissioners to decide as the House of
Lords did. (2. ) That in ranking Mar as they did, they did not
regard it as the ancient Earldom, but either granted " a fancy
title" as from 1404 (according to Lord Redesdale's view in 1875),
or (according to Lord Redesdale's later -view) intended to rank
Mar as from 1457, the date of an Earl of Mar of different
creation. (3.) That the precedency awarded was challenged by
six Earls in 1622. Hence Decreet, and Union Roll as founded

vi • ANALYSIS OF CONTENTS. PAGE
on it, are unworthy of credit, and open to revision by House of
Lords, . . . . . • 6-9
Objections will be dealt with seriatim. Meanwhile the broad answer
as to Mar is, that second to the Decreet of 1626 that of 1606
affords the most direct evidence that the restoration in 1565
was not a new creation, ... .9
Section II. — Historical view of Decreet and Union Boll.
Controversies regarding precedency. Order of 1587 a dead letter.
Commission of 1606. Character of Commissioners and their
names from my MS. Included late aud present Chancellor,
Constable, Marischal, five Lords of Session, the Clerk Register,
Lyon King of Arms, and Lord Elphinstone. Tenor of Com
missions appears from preamble to Decreet. Provision for
reduction before Court of Session. Decreet to stand tiU reduc
tion lawfully obtained. Pro-vision that Decreet be recorded,
and extract given to Clerk Register and Lyon. Latter now in
Advocates' Library, . . . . . 9-14
Note of evidence ou whioh Commissioners proceeded known as " De
jure prelatienis nobiHum Scotise," — repeatedly received by House
of Lords. Office of Commissioners limited to reception and
verification of e-vidence offered ; but this was supplemented
from the records, . ... 14
Decreet was neither a final judgment nor a careless inquest, but a
careful award under conditions prescribed. It was appealed to
by James i. iu 1617 ; and became the RoU of Peers in Parlia
ment, with alterations made by judgments of Court of Session
and additions from new peerages, do-wn to the last sitting of
the Scottish Parliament, . . . . . 15, 16
After the Act of 1617 introducing the forty years' prescription, it
became necessary for peers objecting either to prosecute before
the Court or to reserve their right by protest, renewed when
necessary, . . . . . .16
Masnner in whioh Decreet ef Ranking became Union Roll. Iu
December 1707 the House of Lords ordered the Lord Clerk
Register to send a Kst ef the Scottish peerage as on Ist May
last. The list was sent up, and in February following was
entered iu the Roll of Peers -svith this salvo. That the protests
fer precedency shall be of the same force as if entered in the
RoU of Peers or in the Journals of the House. The protests
thus handed down have been kept alive against prescription by
reiteration at Holyreod, . . . . .17
Effect of protestations as legal interruptions of prescription of pre
cedency afiirmed by Court of Session in 1706. Right of peers
to protest and prosecute their claims under reference iu Decreet
or under power conferred by Statute on Court of Session pro
tected by Treaty of Union, . . . . 17, 18

ANALYSIS OF CONTENTS. vii
PAGE
The Roll according to which the Peers sat at last meeting of Scottish
Parliament is what is popularly called the Union RoU, and
stands liable to correction by Court of Session, . . . 18
Validity of these protests recognised by House of Lords in the
Sutherland claim of 1771, when Crawford and ErroU were sum
moned for their interest. House of Lords then respected the
rights of the subject and of the Court of Session in cases of
precedency, as they had respected the right of that Court te
judge in dignities in case of Lovat in 1730, . . 19, 20
"Weight of Decreet of Ranking must neither be exaggerated nor de
preciated. Negatively, nothing has been done to release peers
from the obligation to acquiesce in the Decreet of Ranking till
they have obtained decreets of Court of Session, or to deprive
peers of right to present claims for higher precedency before
the Court, or to deprive the Court of the right and duty of
adjudging ; and, conversely, nothing has been dene to invest the
House of Lords with power to supersede the awards of the
Decreet of Ranking. Positively, the Decreet of Ranking and
Union RoU are protected by Treaty of Union, are unalterable
by King or ParUament, and a fortiori by the House ef Lords ;
and are only open to correction in proper form by Court of
Session, ....... 20, 21
I do not see how any dignity dormant iu 1606 can be added to the
Roll except under authority of Court of Session ; and if so
added, its place would be Uable to chaUenge before the Court
within the years of prescription. Insertions on the Roll by
House of Lords are deficient in legal warrant, ... 21
Section III. — General Objections dealt with.
(1.) Charge of superficial inquiry. Lord Kellie's words as to brief
period allowed. Proceeds on wrong hypothesis as to duty of
Commissioners, who had only to examine the evidence adduced,
inquiries of a mere recondite character being reserved for Conrt
of Session. It was not tiU after 1660 that any process was in
stituted there on allegation of erroneous ranking on documents
produced in 1606. Cases of Buchan and Glencairn preceeded
on absence of Peer's and non-production of documents. The
Decreet met with general acquiescence, . . 21-23
(2.) That the Commissioners had no means of knowing whether
evidence was withheld. Quote Lord Chelmsford's words —
answered by the fact that the Decreet was provisional, not final.
There was no means of enforcing production of documents
except by appeal to Court of Session. No court can prevent
the fraudulent withholding of evidence whose existence is un
known ; but it is not easUy understood in England how the
Scottish Peers then lived in glass houses. Evidence of this

viii ANALYSIS OF CONTENTS. PAGE
kind could with difficultyhave been withheld. Interrelations
of feudal life, ..... 23-25
(3.) Decreet inaccurate, and thus nob to be founded on; a charge
resting on three bases, . . . . ¦ .25
I. On an aUeged discovery by House of Lords between 1708 ancl
1739, which occasioned the supersession of the Roll by au
amended RoU in 1740 and 1847. Lord Kellie's words. The
aUeged imperfections of RoU refer te fact that some peerages
had become dormant or extinct, and others were assumed by
persons with distant and dubious clauns. There was no
questien of erroneous ranking. The difficulty found by the
Lords of Session in 1740 only shows the ignorance on the
questien at that time in Scotland. The sheet entitled " RoU
of Parliament 1706 " was un authenticated and worthless.
Clerks of House ef Lords had entry before their eyes of cer
tified list. Yet Lord KeUie's words imply that the Union
Roll depended on this scrap of paper. The Report of 1740
a sort of commentary on this sheet, and contains valuable
remarks ; but it had nothing to do with the accuracy of the
ranking in the Decreet or Union RoU. Researches on which
it ia founded were made by Duncan Forbes of CuUoden
within eight months, and without power to caU for evidence.
Report far below Decreet of Ranking in point of weight and
authority. The Union RoU and lists sent up in 1740 never
enjoyed co-ordinate authority. The Act of 1847 was in
tended to prevent votes by pretenders (by means ultra vires,
as will be shown), not to correct imperfections in the Union
RoU. The RoU of 1847 was not a corrected Ust, but an
abridgment by omissions for convenience, and by a questionable
stretch of power. The additions of peerages dormant in 1707,
and recognised as existent, impUed no imperfection in the
sense of inaccuracy, . ... 25-29
2. On the little attention given to Decreet in dicta of Lords on
Committees fer Privileges in the Herries and Mar cases, and
the authority ef Mr. Riddell to same effect. Dicta in ques
tion mere opinions, to be tested by their accuracy. If "little
attention " be an argument, Montrose claim furnishes a,
stronger instance, where Lord Cranworth -thought that the
Decreet of Ranking was " made by the Parliament." Lord
Mansfield, on the other hand, in the Sutherland case, founded
on it an argument in favour of the heir-general, which is
equally applicable te case of Mar. Reply to ilr. Kiddell's
censures. Mr. Riddell's later views, . . 29-32
3. On the basis that the precedence awarded is erroneous in some
cases, and the Decreet has been reduced and thus discredited —
" reduced in case ef Buchan, and mere than once altered in
case of Glencairn" — words implying vacillation, which, if well

ANALYSIS OF CONTENTS. ix
PAGE
founded, would seriouslj' discredit the Decreet. The general
objection is connected with Mar in the impeachment that a
superficial inquiry of a few months is not to be put in com
petition with the recent exhaustive inquiry. A finality is
here attributed to the Decreet whioh was not contemplated ;
it is presumed that the corrections of the Court of Session
discredited it instead of being supplementary to it ; and
the fact is overlooked that while no one ever ventured te
impugn the Mar precedency, the contention was all the other
way. This objection cannot be answered without a clear view
of cases of Buchan and Glencairn, cases full of instruction,
and iUustrating the true value of the dicta in disprezzo of the
Decreet and Union RoU, .... 32-34
u.. Buchan- — The correction took place in 1628 as the result of
an action at the instance of Countess Mary (and her hus
band, Earl by courtesy), daughter of Christiana, also
Countess in her own right (both inheriting under a regrant
of 1547 containing no specification ofthe dignity, and substi
tuting heirs-female for heirs-male), against five Earls unduly
ranked te her prejudice. She had been a minor, and unre
presented in 1606, and her ranking had therefore been too
low. She got decree without opposition, . . . 34, 35
b- Glencairn. — Expression "mere than once altered" calculated to
create prejudice ; whereas circumstances strikingly iUus- '
trate the character of the intervention of the Court to
rectify the shortcomings, not of the Commissioners, but
of the Peers who had been summoned, and of the deference
with which that intervention was recognised, . . 35
Earldom of Glencairn created before Sauchieburn (1488),
with limitation " hseredibus suis." That battle was suc
ceeded by an Act Rescissory directed against acts by late
King during preceding eight months, which, however, had
no effect against this Earldom ; and the grandson of the
grantee was recognised as Earl in 1503. The charter of
1488 is, by a final decreet of Court of Session ef 1648,
the only valid creation. The then Earl of Glencairn did
not " compear " in 1606 : and the charter of 1488 not being
recorded, he got precedence according to the earliest
evidence found, ie. after Eglinten, Montrose, CassUUs,
and Caithness, aU created after 1488. In 1609, Glencairn,
producing the charter of 1488, raised a reductien in
which Eglinten and Cassillis were summoned, but Mon
trose and Caithness overlooked, and got decreet ; but this
decreet, being in absence, was recalled at Eglinton's
instance, in consequence of this omission, in 1617. The
precedence was again rectified by a final judgment in an
action in which aU four Earls were summoned. As an

X ANALYSIS OF CONTENTS. PAGE
interlude, Glencairn in I64I petitioned ParUament to take
up his cause, who refused to interfere, and referred him to
the Court of Session. The rebellious Parliament of 1649,
less scrupulous, took the matter up, replacing EgUnton ;
but their act was in any view ultra ¦vires, and their whole
proceedings were rescinded at the Restoration, the decreet
in faveur of Glencairn being restored to fuU validity.
Once afterwards the precedencies of Glencairn and Eglinton
were inverted on the roU of Parliament ; but the mistake
was rectified, and the ranking of 1648 was adhered to tUl
the Union. Glencairn's ranking was never altered so as to
warrant Lord KeUie's inference, .... 35-39
But if Parliament of Scotland (except when iu rebelUon) up
held the Decreet of Ranking and corrective decreets of
Court of Session, not se the House of Lords. When the
Glencairn Earldom was claimed in 1797 by Sir Adam Fer
gusson, standing on the decreet of 1648 and the charter
of 1488, declared in that decreet not to be affected by the
Act Rescissory, Lord Loughborough, in advising against
him, affirmed that the Act Rescissory cut down the charter
of 1488, and that the dignity must be referred to a lost
patent, a plea urged and disaUowed in 1648. CompUca-
tiens which may arise from this view, . . . 39-41
These errors reiterated in Montrose case (1853). Misappre
hension as to authority of Decreet. Confusion between
what was legal and constitutional and what was not.
Further anomalies, ..... 41-46
EesMmA of general objections and answers, . . . 46 47

Section IV. — Special objections regarding the case of Mar.
Lord KeUie's preliminary observation not included in the enumera
tion, that if the dignity of the Earl of Mar were the ancient one,
he ought to have been summoned first, .... 47, 48
(1.) That Earl John adduced evidence which related to the fief only,
and withheld knowledge of historical facts, and subsequently
destroyed documents. Opinions of Lords Chelmsford and Redes
dale quoted, ••..... 49-52
Answer. — No important document withheld, much less destroyed :
those specified as withheld were inadmissible, ha-ving been
declared null and void by service of 1565, Act of 1587, and
judgment of 1626. Give list of documents produced from " De
jure prselatiouis.'' Impossible to offer chain of more complete
proof. Objected, eu Lord Camden's rule, that all these docu
ments relate to territorial Earldom. General retour of 1588-9
must be accepted. Lord Camden's rule contradictory of Scottish
law : if it had any foundation, the greater number of peers in

ANALYSIS OF CONTENTS. xi
PAGE
1606 had no evidence, the awards proceeding on charters
dealing solely with the lands, ..... 48-64
Documents aUeged to have been suppressed which would have neces
sitated the awarding of precedency from 1565 only if pro
duced : —
I. Charter mentioned in scrap of paper entitled " Memorandum
from the Registers." Could not have been destroyed, as it is
a reference to a charter in the Great Seal Register, . . 54, 55
2. The extorted and unconfirmed charter ¦12th August 1404.
Could not have been withheld, as it was placed on the Register
in 1476, . . . . . . . 55, 56
3. A personal peerage patent, suggested to have been granted to
Alexander Earl of Mar in 1426, in compensation for his resign
ing the comitatus. Would presumably have been recorded :
but I cannot be expected to do battle with a phantom, . 56
4. A patent of peerage-earldom, 1565. If existing, must have
been to heirs-general, but, for many reasons, it could not have
existed. The Lord Lyon, in whose Register it would have
been, and Lord Elphinstone, were among the Commissioners,
and it would presumably have been in the Great or Privy
Seal Register, ....... 56-58
Lord Kellie suggests a special- grant of precedence ; but it must have
been recorded, and why was it net produced ? Impossible to
hold that the circumstances of the Mar usurpation, restora
tion, etc., were unknown to the Commissioners. Question had
been gone into in 1587 and 1593 ; and Earl John met the
Commissioners in a blaze of Ught such as attended the claim
of no other peer. There is nothing in Earl John's character to
suggest his being guilty of the turpitude now imputed to him
by his o-wn descendant. If then there was no suppression of
evidence, the Commissioners were not induced through fraud
to assign the place they did to Earl John, . . . 59, 60
(2.) That the Commissioners pointed out that they did not grant
the precedency as that of the old Earldom. According to Lord
KeUie, the ranking was not from 1404, but from between 1455
(Earl Marischal's creation) and 1458. According to Lord
Redesdale's speech, the ranking proceeded on a fancy title com
mencing with Isabel (1404). According to Lord Redesdale's
later view, as in a letter to the ITimes, expounded in one to my
self, his ranking was 1457, the date being that of an Earldom
of Mar granted to a son of James ii. ; and Mar was thus placed
below ErroU aud Marischal created iu the middle of the fifteenth
century, . . ..... 60-66
In vindication of precedence awarded, viz., from 1404, with inferences
therefrom, I stand on Scottish law as in 1606, as the con
temporary of Commissioners now attacked by Englishmen
applying rules unknown in Scotland, e.g. that the documents

xii. ANALYSIS OF CONTENTS. PAGE
produced related only to the fief, and that the decreet of
1626 deals only with the fief. That decreet stamps the whole
documents from 1404, fixing that Sir Robert Erskine became
Earl of Mar in 1435 as heir of Countess Isabel— a fact which
dominates the evidence in 1606. Had the doubt been between
1435 and 1404, the question would have been immaterial ; but
I shaU now show that the earher date is right. Act 1587
recognised the descent of Earl John from Earl Robert, successor
of Isabel, and, with this Act before their eyes, the Commis
sioners could not have postponed Mar to ErroU and Marischal —
and te Argyle — on the ground of his dignity not being derived
from Countess Isabel and from 1404, .... 66-68
A prehminary question suggested — Why did not Earl John claim a.
higher precedence than 1404? Atiswer, — 1. He had in 1588-9
proved his descent from Gratney. 2. His not having claimed a,
higher precedence is no proof that he was not entitled to it. 3.
A bar existed in his moderation and good sense. The first seat
among the Earls was pre-occupied by Angus, and it was only
after the Earl of Angus became Marquess of Douglas that the
next Earl of Mar claimed a higher precedency. The ruling in-
feftment ef 1404 offered a natural standing-point, . . 68, 69
Point of present objection is that the postponement of Mar to ErroU
and Marischal, created in 1452 and 1455-8, contradicts my view
of a precedency from 1404 and the inference from it. But my
opponents fail to notice the fact that Argyle (created 1456-7) is
preferred te Crawford (1398). All these difficulties disappear
when we appreciate the principles on which these dignities were
claimed. While the general rule was that precedency should be
awarded according to antiquity, there were recognised excep
tions by presumptive right in the holders of great hereditary
offices, and the possessors of certain ceremonial privileges. Shall
iUustrate this by a criticism of the places assigned to the first
seven of the Earls, . . . . . 69, 70
I. Angus. — Proof from 1398 only, while Sutherland went back to
1347. But he had by special grant the first place and vote iu
Parliament, and it became a question whether he validly re
signed it on being made Marquess of Douglas. He bore the
crown.
2. Argyle. — Created 1457. Would by date of creation have been
postponed to Sutherland (1347) and Crawford (1398). But
he was Justiciary-General, and bore the sceptre.
3. Crawford. — Proof from 1398. Would by antiquity have been
postponed to Sutherland (1347). Had no great hereditary
office. Preference could not be from exceptional influence
exerted by the theu Earl (the " prodigal Earl"). But placed
here from usage of Crawford carrying the sword, the third of
the honours. Sutherland had never attended Parliament from

ANALYSIS OF CONTENTS. xiii
PAGE
time of Robert i. till late in fifteenth century. Perhaps the
belief that Crawford was entitled to the Dukedom of Mon
trose led him to be placed as high as possible among the
Earls. Sir David Lindsay's Armorial, . . . 72-77
4. ErroU. — Creation 1452. Had his precedence over Sutherland
and Mar aa Constable, ..... 77, 78
5. Marischal. — Also ranked before Sutherland and Mar in virtue
of office, ....... 78
6. Sutherland. — His charter of 1347 would have given him the
first place, but for causes stated, . . .79
7. Mar- — Ranked second to Sutherland, in consideration of earlier
date (1347) proved by Sutherland. Sutherland's supposed
ranking in virtue of new creation 1513 negatived by the fact
that the precedency awarded a date avowedly long before
1513, ....... 79
Result : — Ranking of first seven Earls proceeded on well-ascertained
principles, the first five on grounds independent of antiquity ;
and Sutherland and Mar in accordance with antiquity of evi
dence produced. Decreet net imperfect and erroneous. Aa
Mar precedency stands from 1404, dignity cannot be the aUeged
new and personal title of 1565 conferred by a lost patent. Why
was that patent not produced ? .... 79, 80
To Lord Redesdale's assertion that Earl John waa put in the place of
au Earl not of the Erskine blood, a Prinoe who sat in Parliament
iu 1457, to exclude connection with the old Earldom, I reply
that this Prince was then an infant, and could not have sat in
ParUament, and such an arbitrary ranking, neither on priority
nor precedency, would have been unwarranted by the terms of
the Commisaiou. This question is subsidiary to the point,
whether the Commiaaionera were induced, by fraud on the part
of Earl John, to assign him a precedency earlier than 1565.
Lord KeUie brings the Sutherland and Mar cases into compari
son. A point of identity is that Lord KeUie and Sir Robert
Gordon have both charged their ancestors with dishonest deal
ing, defiling their fathers' graves, .... 80-82
(3. ) Six Earls ranked below Mar are aaid to have prosecuted a reduc
tion of the retour of 26th March 1588-9. Quote Lords Chelms
ford and KeUie. In 1622 (as stated in Letter -vi.) the Elphiu-
stones (with the offioera of the Crown and others) brought a
reduction of the reteurs of 1588-9, to vindicate the grants made
by the Cro-wn during the usurpation. The six Earls associated
with Lord Elphinatone deny the precedency of Earl John ; but
thia did not constitute an action of reduction or a legal chal
lenge. A rectification of the Decreet could not be puraued by a
side-wind. The proceas collapsed. But the chaUenge of the
general retour could only be based on the fact of Earl John
claiming hia right to the Earldom from Countess laabel. If the

xiv ANALYSIS OF CONTENTS. PAGE
Earldom held by Earl Jehu had been a creation of 1565, and
ranked too high, the six Earls would have caUed for any grant of
precedence, to annul it ; but to call for the retour was an acknow
ledgment that if it stood (as it does under decreet of 1626),
Earl John waa Earl as heir to Isabel. This affords a complete
answer to the " peerage-earldom " theory, and knocks Lord
Camden's law on the head. The introduction of the six Earls
was at the instance of the Elphinatones, to swell the oppoaition
to the retour of 1588-9. The five reteurs of 1628, connected
by Lord Chelmsford -vidth the questien of precedency, were but
the necessary preUminary step to the process against the vassals
of Mar, ....... 82-86
Earl John's son in 1639 initiated a series of protests for higher pre
cedency, carried on to 1847. It is impossible to held that this
claim was based on suppression or destruction of e-vidence. Not
a doubt was ever expressed of the line of succession tiU the
pleadings for Lord Kellie. It ia significant that Earl John did
not protest, though alive, when Angus reaigned his right to first
vote, ... ... 86, 87
Observationa by Lords Redesdale and KelUe on the ranking of
Sutherland as compared -with Mar. Lord Redesdale calls my
statement that Mar was placed next below Sutherland mislead
ing ; and aaya both were placed below ErroU (1452). My an
swer is, that ErroU waa ranked above Sutherland and Mar from
his hereditary office, as Argyle was above Cra-wford. Lord
Redesdale further asserts that Sutherland did not obtain the
precedence "aUotted to it by the House of Lords in 1771."
But the House of Lords cannot assign precedence : and in this
case only reported that the heir-general waa entitled to the
dignity ; and the Commissioners of 1606, by accepting the
charter of 1 347, acknowledged the transmission of the dignity
through Elizabeth in 1514, . . . _ 87-89
Lord KelUe advances same argument -with an inference. Sutherland
waa ranked according to a supposed new creation, since decided
not to have taken place ; and if so, according to my ar<mment
as to Mar, the more recent Earldom could stUl be claimed by the
heir-male. But the fact that the award proceeded on the charter
of 1347 disproves its having proceeded on a new creation of 1514.
The whole theory of peerage-earldoms waa unknown in 1606.
The logical necessity under which Lord KeUie requires me to
make this admission is " an hypothesis buUt on an hypothesis :"'
and the argumenta which were successful in behalf of Lord
Kellie are the only parallel to those unavailingly urged for the
Sutherland heir-male, . ¦ . 89 90
A comparison between cases of Sutherland in 1771 and Marin 1875.
According to Lord Mansfield, Sutherland in 1606 took prece
dence of ten Earls whose interest it was to show a new creation -

ANALYSIS OF CONTENTS. xv
PAGE
but so little idea had they of a new creation, that they began
a courae of protestation for higher precedency. Hia remarka are
equally applicable to Mar. In consequence of nine earldoms
having been shown to be descendible to heira-female (Mar being
one), the inference was drawn that Sutherland waa a tenth.
Substituting Sutherland for Mar, the number would be the same,
and the inference identical that Mar waa a tenth, . . 90-93
In answer to Lord Kellie and Lord Redesdale, I have now
vindicated the contentions in my Proteata that the precedency of
Mar in the Decreet of 1606 is incompatible with the Resolution
of 1875 : and that that Decreet, corrected when necessary by
Court of Session, and supplemented by new creations, became
the RoU of Peera down to the Union, and is the Union RoU. I
have shown that the Report of 1740 and the abridged Roll
of 1847 have no authority ; ancl that protests for remeid of
law before the Court of Session were recognised as vaUd by
the House of Lords in 1708 and 1769. Coi-rections on the
Union Roll can only be made by Court of Sesaion, and neither
by House of Lords nor Sovereign, .... 93, 94
Quotation from RiddeU's " Peerage Law " regarding the only
authority competent to correct the RoU, . . 95, 96

LETTER VIIL
THE ATTAINDER AND ITS REVERSAL.
Resume thread of story after episode of Decreet of Ranking. The
fortunes of the famUy began to decline under the third Earl
John, son of the Treasurer. Fines incurred for loyalty, debts
contracted in Royal cauae, etc., occasioned sale of nearly all the
estates except Alloa. The Earl in 1715 was attainted aa head
of the rebeUion of that year. Attainder reversed in 1824, . 97
During this decline and obscuration two or three circumstances indi
cate the recognition of the ancient Earldom derived from Isabel
and descendible to heirs-general, the modern Earldom of 1565
being undreamed of. Theae are —
(1.) The proteata for precedency from 1639 to Union, and abaence
of counter-protests, . . . . . . . 98, 99
(2.) The teatimony of the family to standing rule of succeasion in
case of divarication between heirs-male and heirs-general,
afforded by entail of estates in 1739 after their purchase for
famUy. Friends of fanuly were permitted to repurchase forfeited
estatea under truat for heirs of house. Purchase completed
by charter of 1725, which had been preceded by a back-bond in
1723, and an entail of 1 739 narrating the back-bond. By terma

xvi ANALYSIS OF CONTENTS. PAGE
of this entail— 1. The destination ia to heirs-general in prefer
ence to heirs-male collateral, of whom the nearest waa Lord
Grange, himself the principal trustee. The attainted Earl's
daughter succeeded under the entail, and on her death, her son,
the afterwards restored Earl. 2. It was ebUgatory on heirs-
general, being strangers to the house of Erskine, to adopt the
name and arma of the Erskines Earls of Mar. 3. Should the at
tainder be reversed, the same class of heirs had to adopt the
"title, dignity, and honours" of the family. The opinion of
Lord Grange as heir-male, a trustee, and a Lord of Seasion, was
thus that the dignity was descendible to heirs-general. That
the heir-general was an Erskine and heir-male in 1824 waa only
a happy accident. AU this was overlooked, . . 98-105
(3.) The testimony of Lord HaUea and House of Lords in 1771, in
the competition fer Sutherland honours, between Sutherland
of Ferae and Sir Robert Gordon against the Countess EUzabeth.
Gordon's argumenta were precisely those ef Lord Kellie. Lord
Hailes proved that nine out of thirteen Earldoms, Mar being
one ef the nine, had gone to heirs-general — and this proof,
accepted by Lords Mansfield and Camden, ruled the case ; aU
which was forgotten in 1875. Point here is that Lords HaUes,
Camden, and Mansfield were in 1771 at one with Lords
Grange and Dun in 1739, — and by their concurrent testimony
Lady Frances would, but for the attainder, have succeeded aa
Countess ef Mar, and her son, by whatever marriage, as Earl, 105-107
(4.) All this waa in remembrance in 1824, when the reatorations
were at first limited to lineal representatives of attainted peers.
John Francis Erskine, grandson through his mother of the
attainted Earl, ranked in this category ; and he was restored
as " grandson and lineal representative." The Act proceeded
on a report by law officers of Cro-wn, certifying his descent
through his mother, whioh Lord Mar was not permitted to
adduce in 1875, although a similar report had been aUowed to
be adduced in the Nairn case in 1874. Had the title been
descendible to heirs-male it would not have been included
among the dignities then restored. Observations on thia sub
ject in my Protests. Remarka of Lords Chelmsford and
Redesdale subjoined -with comments, . . 107-111
(5.) AU this waa unimportant compared with the renewal immedi
ately after the restoration of the protests for the first place
among the Earls, without any counter-protests — which could
not have been the case had the reversal proceeded on the
theory of a new creation from 1565. Act of 1824 has been
unwarrantably turned against heir-general, . . 111,112
Words of Lord Hailes, . . . . .113

ANALYSIS OF CONTENTS. xvii
LETTER IX.
LORD KELLIE'S CLAIM, AND RESOLUTION OF 1875.
PAGE
On death without issue of late Earl of Mar in 1866, John Francis
Erskine Goodeve, hia sister's son, became lineal heir and
representative of the restored Earl of 1824, of Lady Frances,
of the attainted Earl, of Earl John, restored in 1565, of Earl
Robert, and Earl Gratney. The succession passed to a new
family, the common lot where female sueoesaion prevaUa. The
male representation of the house of Erskine at same time de
volved on late Earl of KeUie, who in 1872 waa succeeded by his
son, the present Earl. The heir-general assumed the dignity
of Earl of Mar, which devolved on him malgre lui. Lord
Cairns's expression of sympathy does not go to the root of the
matter. He succeeded precisely as if brother's aon, entered
into possessien, and is entitled to recognition until the heir-
male establish a preferable right by exception, . 114-116
The Earl of Kellie claimed the Earldom of Mar, not the ancient
dignity, but one aUeged to have been created in 1565. Lord
Mar petitioned the House, under his own title, for leave to
appear, which was obtained. He waa afterwards ordered to
expunge the title of " Earl of Mar " from his Case, and the onus
of disproving Lord Kellie's claim was illegally thrown on Lord
Mar. Lord KeUie's narrative of the two questions before the
Committee and of the Resolution, . . . 116,117
The answers were based on the traditional rules of the House, but
I too put three queationa : — I. Are the principles appealed to
in my Protests binding ? 2. Has the House of Lords obeyed
them ? 3. If not, are they or the traditions of the House to
prevail ? The question is between the House of Lords and the
law of Scotland and final judgments of the Court of Session
before the Union, ..... 117,118
Apply two tests to Resolution of 1875 and opinions in speeches ; —
their conformity with the views of the Court of Session in
1626, and with the law of Scottish succession, . 119, 120
I. Question turns in 1875, as it did in 1626, on the respective
validity of the confirmed and unconfirmed charters. If the
charter of 12th August 1404 prevails, the Crown was justified
in resuming the fief and dignity in 1435 ; Queen Mary wrong
in holding that the Erskines had been unlawfully excluded : and
her so-caUed restitution was a new and uncaUed-for grant. If
the charter 9th December 1404 prevails, the reverse follows :
Queen Mary's charter waa a restitution. John Lord Erskine
was replaced ; the succession continued in the line of heirs-
VOL. II. &

xviii ANALYSIS OF CONTENTS. PAGE
general, and the heir-general is new Earl ef Mar, while he
would have had an equal right under the alleged new creation,
had it ever existed. What is the test of validity between the
two charters ? ...... 120, 121
1. No alienation of a fief held of the Crown is valid unless con
firmed. The charter 12th August 1404 being unconfirmed
was invalid. The charter 9th December 1404 waa confirmed
and valid — recognised aa the only legal conveyance in 1565,
1587, 1606, 1771, and 1824, . . . .121
2. This view is enforced in 1626 in the suit against the Elphin-
stonea, when the Court austained the charter 9th December
as againat that of 12th August ; and the question, when
brought up again in 1875, was therefore res judicata, 121-123
II. Apart from judgment of 1626, the Lords were equaUy bound to
report against Lord KeUie by the law of succession aa expreaaed
in the Oliphant case, and testimony of Acta and institutional
writers, . . . . . . .123
It atands out therefore that the House of Lords overlooked the
decreet of 1626, and accepted the charter of 12th August 1404:
what the Court ef Session rejected in 1626 the House of Lords
accepted in 1 875, ..... 123,124
Stepa by which they reached thia concluaion : — 1. By Lord Camden's
law they removed the charter of 23d June 1565 out of the field
aa a grant of dignity ; 2. A new creation presumed ; 3. By
Lord Mansfield's law they presumed the limitation to have been
to heira-male of the body, .... 124, 125
Propagation of error by error iUustrated by Lord Redesdale's argu
ment regarding the barony of Erskine, . . . 125-127
Resolution in direct opposition to the advice of law-officers of the
Crown, who held that even were there a re-creation in 1565, the
circumstances indicate the intention that it should descend to
heirs-general, . . . . . . 1 28 129
The Resolution and ita rationes are at daggera-dra-wn with the
decreet of 1626 and the law of succeaaion generally as pro
tected by the Treaty of Union — Which is to prevaU ? . . 129
Effect of Reaelution. It can have none ou the legal righta of the
heir-general. But practically it restores the state of things
between 1435 and 1565, declared by Queen Mary in 1565,
Parliament in 1587, and the Court of Session in 1626, to have
been the result of injustice. In the face of the censure passed
by the Court on Alexander Stewart in extorting the charter of
12th August 1404 and resigning when a liferenter iu 1426, aud
on James i. and his successors in appropriating the heritage of
the Erskines, the House haa acquitted them all, and (so far as
they have power) excluded Isabel's representative aud given his
inheritance to a legal stranger. According to the views of
1875, the Court of Seasion in 1626, Parliament in 1587, and

ANALYSIS OF CONTENTS. xix
. . PAGE
Queen Mary in 1565, were in error as to the law of succession and
devolution of dignified fiefs, and the circumstances between 1404
and 1565, it being reserved to the Lords in 1875 to correct the
error : the Commissioners of 1606 took an equally false view in
favour of Mar, induced by fraudulent suppression and destruc
tion of documents, which aU nevertheless reappeared in 1626 :
and the Court of Session were no less in error in their decreet
in foro contentiosissimo in that last year, ruling that the Earl of
Mar waa rightful owner of vast property, and entitled to resti
tution as heir of Earl Robert and Countesa Isabel ; that their
decreet might be trodden under foot, and the contention of the
defeated parties enforced in the present day. Everything is
consistent which springs from the charter of December 1404,
everything the reverse wliich springs from that of August 1404.
Lord Mar standa on the former, the House of Lorda on the
latter — Which is to prevail ? .... 129-131

LETTER X.
THE HEIR-GENERAL NOT A CLAIMANT.
I HAVE still to exhibit the practical effect of the Reaelution on Lord
Mar from 25th February 1875 tiU new ; also the action taken by
the House of Lords in a series of Orders on the 26th ; but shall
defer thia, and consider two questions suggested by Lord Kellie,
viz., By what right did the heir-general assume and bear the
title of Earl of Mar, apart from the sanction of the House of
Lords and after the Report?and — Inwhat character cUd he appear
before the House on the occasion of Lord Kellie's claim? Lord
KeUie's viewa on theae queationa are — 1. That the assumption waa
irregular at first, and ita continuance is iUegal. In an undisputed
succession to a peerage no claim ia necessary ; but a disputed
case is different. The logical conclusion of my argument would
be that in a peerage no patent for -which existed, the heir-male
and heir-general might each assume the title, and no authority
could dispossess either. In the CassUUs case the Earl of March
acquiesced. 2. The heir of line ia caUed by Lord Kellie the
" defeated " or " disappointed claimant ;" and it is said that his
Additional Case was ordered to be amended by inserting the
words " claiming to be " before Earl of Mar. Lord Hatherley
spoke of the absurdity of admitting him to be Earl of Mar, and
called him a claimant (words which could not make him one
without a petition to the Crown ; more generaUy he was caUed
" opposing petitioner "), .... 132-135
My two Protests quoted and vindicated against these objeetiona, 135, 136

XX ANALYSIS OF CONTENTS. PAGE
1. As to Lord Mar's status aa Earl, my answer was anticipated in
second Letter. There is ne distinction aa to descent of lands and
honours, except that dignities passed jure sanguinis. In landed
heritage a maternal nephew succeeds hia uncle unless excluded
by aettlement or collateral heirs-male — and in dignities in Uke
manner. Onus lies on heir-male to prove the exception : tiU
proved, the heir-at-law is in possession : and the indefeasibUity
of dignities is unknown in Scotland. Apart from this general law
the question is res judicata from 1626. There is nothing to inter
rupt the immediate devolution on the heir-general. Ita deacendi-
bility to heirs-male aa a creation of 1565 waa repudiated by
Lords Mansfield and Camden in 1771. If the restored Earl of
1824 was net restored in right of his mother, the Cro-wn,
Miniatry, Parliament, all concurred to pass au Act whose ratio
was at variance with the status ef the beneficiary. The case
ef the Earl of March iUuatrates the general usage. The com
plication supposed in the event of two competitors proceeds on
the fallacy that the assumption of the title would be equaUy
competent to the heir-male with the heir-general. Lord Rose-
bery'a Resolution of 1822, that a nephew succeeding to his
uncle must apply fer recognition to the House of Lords, waa
ultra vires, and rescinded. A maternal nephew being next of
kin is equaUy entitled to succeed with a paternal, . 136-139
2. The representation that Lord Mar was a claimant is a funda
mental error. Quote Protest, and Lord Chelmsford in WUtes
claim as to value of speeches in Committees of Pri-vileges.
Lord Mar has never petitioned the Crown — no petition of his
haa conaequently been remitted by the Sovereign to the Houae.
Lord Kellie's claim ia to a modern and distinct Earldom. Lord
Mar only asked and obtained leave to oppose that claim ; but
did not compromise his status or confer on the House any right
to adjudicate en the ancient title. The Duke of Montrose
might as reasonably have been called a claimant in 1853. The
Committee, under the influence of the traditional rule as to
Scottish dignities, diaaUowed Lord Mar's title, ordered him to
expunge it, transferred to him the onus of proof : but Lord
Hatherley'a calling him a claimant could not make him one.
He had to choose between appearing in a degraded capacity
and abandoning his rights, .... 139-141
My answer to Lord KeUie'a two questions therefore is :  1. The
heir- general can no more be other than Earl of Mar than Lord
KeUie can be other than Earl of Kellie : the House had no
authority te determine that he was not Earl of Mar, the Report
being confined to the claim to the Earldom of 1565. 2. He
never submitted his claim te the eld dignity to the Sovereign,
nor claimed a dignity whose existence he denies ; and he is
therefore not a claimant, . . . _ j4j 149

ANALYSIS OF CONTENTS. xxi
PAGE
Lord Kellie and his friends proceed on the impression that mere
opinions expressed in Committee and never reported to the
Sovereign amount to a judicial decision ; and it is also on this
theory alone that the Orders consequent en the Reaelution of
1875 can be accounted for. According to the law laid down in
the Banbury case, the denial of Lord Mar'a right as a peer,
and any action taken on it, is nugatory in law, and a fortiori
inasmuch as it is matter of option to the claimants to Scottish
peerages whether they submit their pretensions to the Crown
or to a legal tribunal, . . . . . 142, 143

LETTER XL
ORDER TO LORD CLERK REGISTER AND ITS RESULTS.
Section I. — Orders passed on Resolution of 25th February 1875.
The Resolutien iu favour of Lord KeUie was adopted 25th February
1875, and next day the House initiated the action which has
led to Lord Mar's exclusion from hia place at Holyrood and
Lord KeUie'a propulsion into it, an action proceeding on viewa
expressed in Committee, which were ne part of the Resolution,
and cannot be imported into it in prejudice of one who is no
claimant, and iu legal peasessien. ' The Lords have since dis
avowed the theory on which thia actien proceeded; but the
action remaina in force. Lord KelUe narrates the three Orders
of the House of 26th February 1875, namely, that the Resolu
tion be reported to Her Majesty, that it be transmitted to
the Clerk Register, and that the Clerk Register receive the
vote of the Earl of Kellie as Ear] ef Mar ; and he adds that
theae Orders make the Protests unavaUing, . . 144, 145
The second aud third Orders were ultra vires for two reasons, . 145
1. As issued prematurely, before the Report had been made to the
Sovereign, and under an unwarranted assumption that the
Sovereign would approve. After reporting the Resolution
under the royal reference, the House is functus officio. These
Orders were therefore an invasion of the Queen's prerogative,
whose assent could not be presumed on in any case, aud least
of all where the Resolution waa in contradiction to the opinion
of the law officers of the Crown. Her Majeaty might have
referred Lord KeUie'a petition back to the House for further
consideration, or taken the advice of another tribunal. The
precipitancy of the Order precluded remonstrance by the heir-
general. It ia no answer that the provisions for justice at the
foot of the throne are obsolete ; Lord Chelmsford did not hold

xx'ii ANALYSIS OF CONTENTS. PAGE
them so in the Wiltes case, and they are the only security
against the autocracy of the House of Lords, . . 146, 147
2. The third Order tampered with the Union Roll, intruding Lord
KeUie as Earl of Mar of 1565 into the place of the ancient
Earldom of Mar, occupied by another jure sanguinis, by the
Restoration Act of 1824, the recognitien of 1771, and decreet
of 1626 ; an Earldom which Lord KeUie had not claimed, and
on which the House had not reported, giving Lord KeUie pre
cedency over nine Earldoms created between 1404 and 1565.
The House has since disclaimed the power to do this, . 147-149
Section II. — Proceedings at Election of 1816.
The Order first made itself felt at the Holyrood election of 1876,
where the popular prejudices on the subject were brought into
jirominence. Scene dramatic. Meeting of true heir and false ;
former with a few sympathisers, latter in fuU blaze ef success,
supported by the Duke ef Buccleuch, Marquess ef Lothian, and
Lords Elphinstone and Saltoun, . . . .149
Lord Lothian called attention to the presence at the Peers' table of
a gentleman decided by the House of Lords te be a commoner.
Duke of Buccleuch remarked that it was unusual for a claimant
to take his seat with those who were in possession. Lord
Elphinstone, seconded by Lord Saltoun, moved that "ilr.
Goodeve Erskine " leave the table. Lord Mar asserted his
status as Earl of Mar, that he had already voted, and that he
made no claim to the Earldom adjudged to the Earl of KeUie.
Views of the Lord Clerk Register in misconception of his
position. Question of his sitting at the table, how settled, 149-152
Beth Lord Mar aud Lord KeUie offered to vote as Earl of Mar ;
Lord Clerk Register refused vote of former. Protests were
lodged against Lord Kellie's vote by Earls of Morton, CassUlis,
and Caithness, as prejudiced in their precedency — and by
Marquess of Huntly and Lord Napier on mere general grounds.
My own Pretest, ..... 153, 154
The Lord Clerk Register observed that he had no choice but to
obey the Order of the House of Lords ; and the Duke of
Buccleuch, that the Peers could not go into the questions raised
by the Protest. The Duke was right, but he did not
apprehend the ratio of Protests as grounds for subsequent
proceedings before the Court of Session. Lord Mar asked
leave to read a Protest, and spoke iu defence of his rights.
Lord Elphinstone protested against Lord Mar being allowed to
read his Protest — said that the Peers were unanimous in decid
ing the ancient Earldom to be extinct, aUuded to the process
regarding the estates under the settlement of 1739 and missing
back-bond, and asserted that Lord Mar's presentation at Court

ANALYSIS OF CONTENTS. xxiii PAGE
had been cancelled. Further remarks having been made by
Lord Saltoun and Mansfield, Lord Mar's Protest was rejected
as being signed " Mar,'' .... 154-158
Lord Rosebery's Resolution and the rescinding of it adverted to
by Lord Mar and the Duke of Buccleuch, . . 158-160
Dangerous suggestions by Lord Clerk Register regarding Union
Roll. Protest by aUeged Countesa of Breadalbane received,
while Lord Mar's was rejected, . . . 160-162
Lord Clerk Regiater placed in a difficult position between conflicting
responsibilities, ...... 162, 163
Section III. — Observations on foregoing proceedings.
1. All, including Lord Mar, assumed that the Houae of Lords had
jurisdiction in dignities as a court of justice, in oblivion of the
prerogative of the Queen ; and further overlooked the fact that
it ia only by allowance of claimants to Scottish dignities that
their claims come before the Crown at all, . . 163, 164
2. The Lord Clerk Register, the Duke of Buccleuch, etc., insisted
that Lord Mar had been a claimant, and an unsuccessful ene,
notwithstanding his clear representation that Lord KeUie only
had been a claimant, that he had claimed neither Earldom,
aud that no adjudication had passed against him. This arose
from inadvertence of the fact that the Lorda can neither offer
au opinien nor take action as to a dignity but by reference
from the Crown. It wUl be aeen that the Select Committee of
1877 recognised that there had been no deciaion against the
heir-general, agrecibly te Lord Mar'a contention. And if Lord
Mar is thua justified, hew much deea not the view urged against
him at the election need juatification ! . . . 164, 165
3. Lord Mar did less than juatioe to himself in admitting that the
supposed Earldom of 1565 would vest in the Earl of KeUie —
an admission the result of Lord Mansfield'a law, . . 165
4. If the third Order waa ultra vires, ao were the proceedinga at the
election, which can infer no prejudice to Lord Mar or other
Peers. But cruel as was hia position and treatment, the man
most to be envied was Lord Mar, who, in the most trying
circumstances, with few sympathisers, atood up to defend hia
inheritance and the righta of the Scottish peerage. Having
verbally proteated, he has since abstained from voting, 165, 166
5. No one present had an idea of the force of Protests. They are
in aequenoe to those uttered before the Union, whieh were
received by the House of Lords in 1708, and to others on
different occasions in Scottish history. So far from being
empty, they are of very substantial weight, . . 166, 167

xxiv ANALYSIS OP CONTENTS.
LETTER XIL
RESOLUTION AND DEBATE REGARDING UNION ROLL.
PAGE
I HAVE to chronicle a debate in the House of Lords, and a Report
of a Select Committee, which bring the law of the land and
the assumption of autocratic power in regard to peerages into
pronounced antagonism, . . . . . 1 68
Section I. — The Duke of Buccleuch' s Resolution.
The minutes of election and Protests had been transmitted to the
House of Lords, and what took place circulated by the press.
Lords KeUie and Redesdale determined to take notice of what
had passed, the former aa affecting his poaitien, the latter to
prevent a recurrence of Lord Mar's interpoaition, and also on
broader grounds. Lord Kellie addressed a petition to the House,
and the Duke of Buccleuch moved a Resolution in conformity
with it. On a debate on 9th July 1877 the Resolution was
withdrawn aud a Select Committee appointed, which presented
a Report on 27th July, containing a recommendation in con
sequence of which Lord Mar has not since voted, on grounds
to be hereafter seen, ..... 168, 169
Lord Kellie's Petition prayed the House to direct that the title of Earl
of Mar be called in a precedence corresponding to 1565, and not
in any other place, the petitioner not desiring a precedency to
the prejudice ef ether peers. But whUe Lord KeUie disclaimed
to profit by the inadvertence of the Order of 26th February, his
proposal involved the excision of the original Earldom as well
as the interpolation of the new. The Petition was grounded ou
the allegation that the Resolution of 25th February was unani
mous, and that all the Lords who speke gave opinions that no
other Earldom of Mar existed but that of 1565. This allega
tion suggested the searching question whether opinions in
speechea in Committee are judgmenta or mere obiter dicta. The
Resolutions, if they could be imported into it, would affirm the
extinction of the original Earldom, and a ground would be sug
gested fer thia operation ou the Union RoU. The Report of
the Select Committee gave uo countenance to these -views. Be
hind Lord KeUie's anxiety to be reUeved of his pre-eminence
they discovered a latent aud less generous motive, — to prevent
" Mr. Goodeve Erskine " from anawerlng to the title of Mar,
wherever called. This they refused to sanction. A declaration
waa thus elicited from the law Lords and the Houae aa to the
quality and character of opinions in speeches, whether " judg-
™^°*5'"  169-171

ANALYSIS OF CONTENTS. xxv
PAGE
The Duke of Biicoleuch's Resolution, aa moved on 9th July, was
that the title of Mar be caUed in the precedence to which it is
entitled under the Resolution of 26th February 1875, aud in
no other place; but with a saving to the "Earl of Mar aud
KelUe " and aU other Peers, their rights and places, upon fur
ther authority shewn, ...... 172
By Lord Redesdale's admission this motion waa intended — 1. To
confirm Lord KeUie's position. 2. To bridle the freedom of
action of Scottish Peers at Holyrood, in revival of the control
exerciaed last century. Concluding salvo an after-thought, de
noting au impreasion that there was a risk of going too far — a
change of front betokening coming defeat ou the main question.
Even Lord Redesdale in his speech and in a letter to the Times
acquiesced that the heir-general might make good his right to
the old Earldom ; and Lord KeUie's agents, writing to the Times,
participated in this view. Lord KeUie'a friends, who at first
maintained the original Earldom to be adjudged to be extinct,
became conscious before 9th July that the question was au open
one. In his recent letter, however, Lord Kellie insists that the
judgment ef 1875 extinguished the original Earldom ; but the
House of Lords has in 1877 recognised it to ba an open ques
tion, ....... 172-176
Section Til.— Debate of 9th July 1877.
Thia debate, with the Report of the Select Committee that sprang
out of it, determined the attitude of the House for the present
generation as to the extent and limitation of its intervention in
peeragea, the House retracing its stepa towards a juater appre
ciation in some mattera, but in ethera plunging deeper into
error. The favourable points included a repudiation of the
power of legislation (alone), and the unfavourable arrogatiou
of a jurisdiction iu dignities exclusive of the Sovereign, due to
autocratic traditions never before crystallised, and the accept
ance of an Act of 1847, which will be shown to be unconatitu-
tional. The lay Peera spoke firat, including Lord Redesdale,
the special exponent of the viewa which the Houae was called
on to enforce, ...... 177, 178
The Duke of Buccleuch repreaented the Resolution as carrying out
what is usuaUy done at once, viz., sending an Order to the Lord
Clerk Regiater to insert the peerage according to its proper
place on the RoU, that place being 1565, and alleged various
precedents. The saving clause would prevent interference with
other peerages, e.g. with a claimant of the ancient Earldom ot
Mar. He spoke in depreciation of the Decreet and the Union
Roll, ........ 178
Lord Huntly observed that the precedents were all of peeragea

xxvi ANALYSIS OF CONTENTS. PAGE
added, not struck off ; to strike off the ancient Earldom would
be iiUra vires of the House, .... 178, 179
Lord Redesdale said that the House having come to a R.esolution
(that of 1875) as to the date of the Earldom of Mar, it ia
according to custom to order that peerage to be caUed aa of
that date. The present Resolution does not strike a peerage
off the Roll, only says it shaU not be called as of a certain date,
and why ? because there is no such peerage of that date. There
never was an Earl of Mar sitting in 1457 (not very consistent with
the admission that that peerage might yet be claimed). The
Committee for Privileges, with evidence never brought before the
Commissionera or any other tribunal (what of decreet of 1626 ?)
determined that the first Lord Erskine who was Earl of Mar
took his seat in 1565. Referring to my having caUed in ques
tien the jurisdiction of the House, he said that the House has
always held that it is the only tribunal to determine the right
to a peerage. A claim was put forward by a person not
neminally a claimant that the Earldom dated, not from 1565,
but a much earlier period, but he could show no ground for it ;
the decision was that that was the only date of the 'Earldom
of Mar, no one having sat as Earl from 1377 to 1565 who could
claim descent from the ancient Earls. It was the decision of
the House, right or wrong, that there waa a new creation in
1565. What grounda are there to justify the propositien that
the House cannot order a peerage found ou the RoU to be
called at a different date ? Our doing so ia the natural con-
aequence of the Resolutien come to in 1875, . . 179-182
Lord Mansfield stated that there were precedents for putting peers
higher, but not lower : noticed the description of Lord KeUie
and Lord Mar as " rival claimants," pointed out that the latter
succeeded iu course of law to his Earldom, which has not been
claimed by the former, and retains it, and every Scottish peer
is in the same position. The Committee for Privileges found
that Lord KeUie had proved his claim to a peerage of 1565, but
said not one werd about the peerage of 1404, which remains
intact. The decision of 1875 was however an extraordinary
one, as the peerage of 1565 was unheard-of before, aud is un
supported by a scrap of evidence, except the postacript of a letter
of Queen Elizabeth's envoy, Randolph. Then, instead of the
Resolution of 26th February beiug first reported to the Queen,
to take the Queen's pleasure on it, it waa at once sent down to
the Lord Clerk Register. Lord Mansfield vindicated the De
creet of Ranking aa founded on the e-vidence produced, and con
taining a reaervation of proceas before the Court of Session : and
alluded to the charter mentioned by Selden. The proposal now
made was to strike out the Earldom of Mar as of its date, and
insert it aa au Earldom of 1505, because " they have got iuto a

ANALYSIS OF CONTENTS. xxvii PAGE
mess with their Ordera." The Committee came to au erroneoua
conelusion, and muat have taken immenae paina, because it is
difficult to give a judgment when all the facts are against you.
It was remarked as curious that the Committee did net consult
their legal advisers upon the law of Scotland : had they done
so they would not have known that the non-aaaumptiou of the
title immediately after the charter of 23d June 1565 was the
neceaaary result of the delay in getting infeftment. The matter
ought to have been referred to the great tribunals iu Scotland ;
instead of which it was in defiance of the opinions of the law
offioera of the Crown that the Committee arrived at their eon-
elusion, ...... 183-187
The law Lorda, Lorda Cairns and Selbeme, then speke, aud their
views, checked by the Report of the Select Committee, muat be
considered those of the House, the question whether they are
just remaining in the background. Both speeches were in de
preciation of the proposed Resolution. Both Lords agreed that
its adoption would commit the Houae to aaaume a legislative
power which it did not poaaeas. Lord Selborne was opposed
to the salvo, as weakening the effect of the Resolution of 26th
February 1875 ; while Lord Cairna thought the salvo made it
leaa objectionable than at first. Both made it the basis of dis
cussion that the decision of 1875 must be final, right or wrong.
Lord Selborne declined to enter into ita grounds with Lord
Manafield, aud Lord Cairna aaid that it was not the custom to
admit argument in opposition to a decision which the House
has come te. (The true reason against re-diacuaaion was that
the House, after reporting, was functus officio, and the ultimate
adjudication rested with the Sovereign), . . 187-189
Lord Selborne founded hia opposition to the Duke of Buccleuch'a
Resolutien ou two grounda ; — 1. That it waa inconsistent with
what was resolved in 1875 ; and that, if carried, it would net
support the authority of what was then done, but discredit it.
2. That its acceptance would commit the House to the assump
tion of jurisdiction as to Scottish peerages and the Union Roll
not hitherto exercised, . . . . 189, 190
1. In support of the first point in the first ground, he said that the
Order to call the title of Mar in its place on the Roll was
different from ordering it to be called according to date of
creation (a juat diatinotiou) . On the second point of that
ground he was less happy ; and in his anxiety to fortify the
Reaolution he imported the reasons into it. Although, he said,
the decision doea not embody its grounda (thua assuming that
the House of Lords is a court of law delivering judgment), yet
its ground was that in 1565 no Earl of Mar existed of earlier
date, and that the ancient Earldom had not been restored by
the means till then supposed to have restored it. It virtuaUy

fviii ANALYSIS OF CONTENTS. PAGE
therefore asserted that there was only one Earl of Mar since
1565, and created that year. There had always been an Earl
of Mar on the Union Boll ; and hia place, if there were only one,
was the existing place. The precedents adduced by the Duke
of Buccleuch are not to the purpose ; and his Resolution does
not direct erasure of the old title and introduction of the new,
but that the title of Mar should be called according to ita date
of creation, i.e. 1565. The more ancient peerage would rank
in the earlier place, a second one being introduced, thua encour
aging the idea that there were two Earls of Mar (Lord Selborne
overlooking the words " iu no other place "). His attempt to
import the opiniena into the Resolution is at variance -with
principle ; and his anxiety to exclude the reopening of the
deciaion by recognitien of an existing Earldom of the old crea
tion, led him nearly to the adoption of the expediency doctrine
of 1762 aud 1771. The maxim " In dubiis benigniora semper
sequenda sunt " might have been expected to rule. The Report
of the Select Committee adopts the more favourable view, and
repudiates the importation of the speeches into the Resolution, 191-193
Lord Selberne's second point was supported by cogent reasouing.
No precedent exists for changing the precedence of peerages,
and it would be against the spirit of Acta of Parliament. In
the Decreet of Ranking, the right of appeal was to the Court
of Session. He cited the Parliamentary confirmation of the
Decreet obtained by the Countess ef Buchan before the Court
of Session. He Ulustrated the danger of assuming the office of
rectifying the ranking of peers by the oases of Sutherland,
ErroU, and Crawford, and suggested the possibUity of Queen
Mary having granted a higher precedence than 1565 (but such
a grant had it existed would have been produced in 1606).
Vindicating the authority of the Union RoU by the testimony
of the Act of 1847, he remonstrated against taking away a pre
cedency enjoyed for more than two centuries. Referring to the
way iu which the House had formerly acted, he aUuded to the
application to the Court of Session to return a revised RoU,
•with the omission of attainted peeragea, in 1739 ; to Lord
Roaebery'a Reaolution of 1822, and its rescinding iu 1862;
to the fact that while a Select Committee in 1832 recom
mended that the Lord Clerk Regiater shoidd be directed
to make out a new Roll, the House refused to assume that
power, aud in 1847 an Act was passed (correctly referred
to aa ahowing the Umitation of the action ef the Houae)
whose provisions aud those of the Act of 1851 Lord Selborne
recited. The former Act provides — 1. That no peerage be
called in right of whioh uo vote has been received since 1800.
2. That if a vote in respect of any title be disallowed, the
Houae may order that aueh title shall not be caUed tUl some

ANALYSIS OF CONTENTS. xxix PAGE
right to it be eatablished ; but here (said Lord Selborne),
without anything iu the Act to warrant it, we are asked to
order that the title of Mar now on the RoU shaU not be caUed
where it stands. 3. That protests should be tranamitted to
the Houae, who might order the peraon protested againat to
eatablish his claim " under the same rules as apply to ordinary
claims. " CWhereas "ordinary claima" are preferred to the
Sovereign, who may refer them to the House of Lords or any
other tribunal, this unprecedeuted previaion ia that they be
investigated by the House of Lords without any reference.)
4. That when a peer has established hia right, and the same
haa been notified to the Lord Clerk Register, the Lord Clerk
Register shall not during hia Ufe aUow another person claiming
the same peerage te vote tiU otherwise directed by the House.
(This cannot apply to Lord Mar if his right is, as aaid by Lord
Selbeme, absolutely negatived by the deciaion of 1875.) Then
the later Act of 1851 providea that titlea in right of whioh no
vote has been received for fifty years shaU not be caUed tUl the
Houae directa. (Under this Act the House may order the Duke
of Rotheaaynot to be called.) Lord Selborne'a induction however
is admirable, the reapect or diareapeot due to the Act of 1847
having nothing to do with hia argument. Hia closing worda, 193-201
Lord Cairna, while agreeing with Lord Selborne that the Reaolu
tion of 25th February 1875 muat be supported, rightly declined
to import into it a declaration inimical to the heir-general.
There was uo petition from any one claiming the original
Earldom, the House had not been empowered to express an
opinion regarding it, and the Reaolution fell to be construed
with rigid severity in the interest of any one who could be in
juriously affected by it. But while alluding feeUngly to the
position of the heir-general, he qualified him as a "claimant."
Had he been ao, there would have been some ground for Lord
Selborne'a importation of the apeeches into the Reaolution.
Under that alternative the salvo of the Duke of Buccleuch'a
Reaolution ought to have rendered it not leaa but more objec
tionable, aa opening the way to two Earls of Mar, . 201-203
Lord Cairns thought a aaving of the rights of the peers ot Scotland
made the Resolution less objectionable, but it was stUl too hke a
judicial or legislative declaration under the guise ef a Reaolu
tion. We ought to be careful net te go beyond what the decision
waa. He opposed the Resolutien on two grounds, . 203, 204
1. Whether the Order of 26th February 1875 meant to oaU the
Earl of Mar according to the place of a peerage of 1565, or left
the Lord Clerk Register to judge of its precedence, — that
Order being entirely affirmative, the proposed Resolution,
supplementing it with something different and higher in opera
tion — would be virtually a judicial decision, . 204, 205

xxx ANALYSIS OF CONTENTS. PAGE
2. It would be a meddling with the Union RoU, which could not
be dene except by Parliament. That RoU is declared to be of
authority by the Act of 1847 (both law Lords overlooking all
deeper grounds). Peerages have been added to it by the House
of Lords, but none subtracted, and no alterations in prece
dence made. (Excellent so far as it gees, but the Union Roll
rests not on anything done in 1707, but on the Decreet of
Ranking aa corrected by the Court of Session.) Lord Cairna
drew the same inferences as Lord Selborne from the Act of
1847. Under this Act the House sat in judgment in the case
of Lord Colville of Ochiltree, passing a Resolutien that that
title should never be called again. (What would be the posi
tion of the rightful claimant to such a peerage should he appear
aubsequent to auch a Resolutien ?) If an Act of Parliament
was required to do this, you cannot in the present case act by
Resolution. Lord Cairns concluded by suggesting the -with
drawal of the Resolution, and appointment of a Select Com
mittee, ....... 206-208
Lord Denman added a few words, and it was agreed that a Select
Committee should be appointed, . . . 208, 209

LETTER XIII.
SELECT COMMITTEE OF 1877.
Members ot Select Committee enumerated. They met 23d, and ad
journed to the 27th July, on which day the Report was ordered
to be printed. Its title is misleading. Its appendix gives the
Roll actually uaed at Holyrood, but not the Union RoU or
Decreet of Ranking ; the Report on which the Act of 1847 waa
framed, the Report of 1832 containing the impracticable recom
mendations commented en by the Lord ChanceUor ; a return
of Peera whe have voted since 1800; Lord Rosebery's Resolu
tion of 1822, but not the Duke of Buccleuch's Reaolution can
celling it ; nor the Acts ef 1847 and I85I, . . 210-213
Act of 1847 (10 and 11 Vict. 0. 52), . 213-216
Act of 1851 (14 aud 15 Vict. c. 87), . . . 216, note
Report ot Select Committee of 1877, . . . 216-220
By thia R,eport the House approved the views of Lord Selborne iu
part, and Lord Cairna in whole. Its special feature is that, whUe
recognising the Earldom as a new creation iu 1565, it admits
that the heir-general may have a right to the ancient Earldom,
and points ont a mode by which he may brmg his eaae directly
before the Lorda, not suggesting, however, that he should peti
tien the Crown. Ita spirit waa so far favourable, giving ex-
preasion to the growing feeling that the Resolution of 1875 did

ANALYSIS OF CONTENTS. xxxi PAGE
not necessarily extinguish the original Earldom, and that there
might be two Earls ef Mar, a possibUity whioh I cannot admit, 221, 222
Lord Mar'a case has, however, been rendered mere embarrassing by
a miaconoeption of the powera conferred by the Act of 1847.
A Peer, by the law of Scotland, who has never claimed, nor
required to claim, the dignity of which he is in legal possession,
whose atatus is unaffected by anything done in the House of
Lorda, has been placed in the position of being compeUed to
abstain from his right of voting, lest he should be dragged by two
protesting peers before the House as a judicial tribunal, with
the certainty that, tiU it abjure ita traditional rules, it will
decide againat him, or, in the event of his non-appearance, ex
punge hia title from the Roll under that Act, erroneously sup
posed to be applicable to hia case. The house of Mar haa been
replaced in the position of the heirs of Countesa Isabel between
1435 aud 1565, the Earl of Mar of 1875 standing in the aame
situation as Earl Robert, who had been served to Isabel in
1438, whom Parliament in 1587 and the Court of Session in
1626 recognised. It is to be hoped the period of iniquity may
not laat so long aa that which Queen Mary put a stop to. Is
it beyond hope that Her Majeaty may intervene in the spirit
of her ancestress? The refusal to receive Lord Mar's vote
affects the privileges and independence of the Scottish Peers,
aud Her Majeaty may weU ask the reason, . . 222-224
Good faith ot all concerned affirmed in my paper, which Lord Redes
dale criticised iu the House before the change of opinion which
found expression in the salvo. A step in approximation to
better things has been taken ; and it needa but one step further
— an acknowledgment that Lord Mar is under no necessity of
claiming what he ia in possession of, to enable him to tender
his vote. Meanwhile the Act of 1847 hangs over his head, 224, 225

LETTER XIV.
THE ACT OF 1847 (10 and 11 Vict. u. 52).
The import of this Statute as bearing on the Earldom of Mar, and
ou the privileges and independence of the Scottish Peers, cannot
be appreciated without ascertainment of its origin, sanctions,
authority, and validity, ..... 226
Section I.. — Report on which the Act proceeded.
Annoyances had arisen from the tendering of votea by pretenders to
dormant and extinct titlea. Further than protests, the proper

xxxii ANALYSIS OP CONTENTS. PAGE
remedy, an application to the Court of Sesaion, waa not thought
of. The chief cases were those of Crawford, Humphreys, and
ColviUe ot Ochiltree. A protest by the Earl of Selkirk iu this
laat caae led to the inquiry and legislation of 1847. A Select
Committee being appointed, the evidence waa taken of Mr.
RusseU, Clerk of Seaaion, and Mr. Robertaon, peerage agent.
The latter, bred under the dicta of 1762 and I77I, whose key
note was the absolute authority of the House of Lords iu
Scottish peerages, was a very unsafe guide ; and, unfortunately,
the Lords ot Session and law officers of the Crowu for Scotland
were not appUed te, . . . • - 226-228
Mr. Robertson's examination, . . . ¦ 228-230
Report of the Select Committee of 4th June 1847, . • 231, 232
Section II. — Act not applicable to Lord Mar.
Were Lord Mar to descend from hia place of legal poaaession to the
bar ot the House as virtually a claimant, through the opera
tion ot a pretest by two peera and a aummona by the House
under the Act ot 1847, this step would be unavailing in law,
as he does not come within the category of persons to whom
the Act has reference, and the same reason (I mean in law, uot
in practice) precludes the Act being enforced against him.
The class of pretenders to dignities to whom the Report refers
ia further emphasised in the preamble to the Act, . . 233
It maybe suggested that Section iii. is independent of the preamble ;
but either view ia almost equally inimical to the appUcabUity
of the Act : — 1. If the Act ia governed by the preamble, the
latter refers exclusively to peerages "dormant or extinct,"
and " fer some time dormant," and persons who " had no
right " to those dignities. The Earldom of Mar, old or new,
has never been " dormant or extinct," much leas " fer some
time dormant ; " as the preaent Earl aucceeded /ure sanguinis
to hia uncle by law, beaidea being recognised everywhere till
Lord KeUie'a claim, and the succeaaion of the Earldom reatored
in 1824 has never been interrupted. 2. If the Act ia not
governed by the preamble, it follows any two peers may pro
test against the vote of a third, and thus empower the House
to order the peer in possession (even the Duke ot Rothesay) to
appear and establish hia claim before the House ; and faUing
his doing se, to order that his title shall not be called. There
are peers regarding whose right doubts have been entertained
by lawyers, and such a course might conceivably be adejited in
reference to them, a danger which the evidence of Mr. Robert
son showa had been fereaeen. The framers of the Act could
not have intended to put such power into the hands of the
House, unchecked by worda limiting its exercise to the case of

ANALYSIS OF CONTENTS. xxxiii PAGE
pretenders ; and if they did so, the enactment was ultra vires
even of Parliament, . . . . 234-236
Had the Select Committee of 1877 deliberately read the Act of 1847,
they would surely have seen that Lord Mar's case does not tall
-within its terms. The private rule of the House could not be
enforced against the law of Scotland in a cause not brought
before the House by a reference from the Crown, . . 236
A constitutional objection to the Act of 1847 to be noticed later, 237

LETTER XV.
RESULTS OP DEBATE AND REPORT OF 1877-
The Debate of 9th July and Report of Select Committee have been
conaidered chiefly with reference to the Earldom of Mar. But
they have a broader acope aa determining the attitude in which
the House ot Lorda stands -with regard to claims to Scottish
dignities and the right to vote at Holyrood. Proximately, the
propositions laid down iu 1877 have an unexpected bearing on
the validity of the Resolution of 1875, cut away ita ground,
and elench my argument in support of Lord Mar'a possesaion
of the ancient and ouly Earldom, . . . 238
Section I. — Questions of principle evolved.
The foUowing aearohing queationa of principle were suggested by
the Petition of Lord KeUie, the Duke of Buccleuch's Reaelu
tion, and Lord Redesdale's appeal against my Memorandum : —
I. Are opinions in speeches to be imported into the Resolutions
so aa to broaden their signifioanee ? 2. Are the Reaolutioua
adopted by the House final and irreversible, whether right or
wrong ? and are they to be interpreted benignly or the reverse ?
3. Can the Houae act on a Resolution without waiting the
approval of the Sovereign, and iu exclusion of his right to
reconsider the deciaion? 4. Is the House a court of law, with
exclusive juriadiotiou iu dignities, or a commiaaion of inquiry
to which or to any other advisera the Crown may refer claims ?
5. Can a peerage claim come before the House except by
reference, and can the House pasa sentence on rights to
peerage apart from auch reference ? 6. In a word, is the
ultimate jurisdiction in the Sovereign or the House of Lords ?
7. If the Houae possesses the right of jurisdiction as a Court
of law, has it a legislative power in connection -with peerages,
aa involved in the right of voting at Holyrood? — a power
enabling it to auperaede the law of Scotland by private rules,
alter the Union Roll, or otherwise interfere at elections, 238-240
Categorical answers could not be expected from the law Lords
VOL. II. C

xxxiv ANALYSIS OF CONTENTS. PAGE
on these points ; but while confining themselves to the issue
before them, they laid down uncompromising propoaitiona on
the leading points, and indicated responses to the others.
As to whether opinions formed part ot the Resolutions, Lord
Selborne held that they did. Lord Cairns that they did not,
and the Report that they did not, . . . .240
The fundamental propositions whioh the House laid down were : —
i. That the House has absolute jurisdiction in dignitiea, irre
spectively ot the Sovereign ; and their decision is final, right or
wrong. But the opinions in the speechea, even when expreas-
ing the rationes, cannot be imported into the Reaolutions. It
follows that the House was justified in passing the Order ot
26th February 1875 before receipt of Her Majesty'a pleaaure.
ii. Legislation being the joint werk ot the Sovereign and
Houses of Parliament, the House of Lorda can only act in
regard to the right to vote under power conferred by the
Legislature, apecially by Acta of 1847 and 1851. Any action
aa to the Union PkOll, not being warranted by theae Acts, would
be ultra vires. The House cannot supersede the law of Scot
land regarding succession to dignities and right to vote by
private rules, nor can it reverse a final judgment of the Court
of Session regarding dignitiea. But -nhat it haa affirmed to-day
it may unaay to-morrow. It ia however mere difficult now
than formerly to adopt a retrograde step in presence ef the
public ; and in some important points the Houae has advanced
towards legality, . ... 240-242
Answers to the seven questions indicated, with coroUaries and prac
tical results, ... . . 242
I. Opinions, not forming part ot a Resolution, cannot be termed
"judgments.'' If the speeches of Lord Hardwicke and Lord
Mansfield were "judgments," so was that of Lord Marchmout
in vindication of the law of Scotland. The salvo in the Duke
of Buccleuch's Resolution would have been inadmissible, had
the speeches in the Mar claim been part of the judgment. Lord
St. Leonards was -wrong iu 1853 in preasing the speech of Lord
Loughborough in the Glencairn claim as a final judgment, 242, 243
2. A Resolution affirmed by the House ia a final and irreversible judg
ment. Against this I would suggest that decisions flagrantly
against law cannot be final, aa tor every wrong there must be
a remedy ; there can be no writ ef error till the House of
Lorda has been recognised as a court ot justice in peerage
claims, which is not the case, and cannot be the case in Scotch
dignities through the Treaty ot Union ; and these views exclude
any appeal to the Sovereign, . . 243. 244
3. The House can act on the Roselution at once ; that is, the moment
that it is approved and ordered to be laid before the Sovereign.
The report to the Queen is thus reduced to a form, all power of

ANALYSIS OF CONTENTS. xxxv PAGE
inquiry on her part, or petition by aggrieved party, precluded ;
and I think this procedure extra ¦vires of the House, . . 244
4. The Houae is thua practicaUy a court of law, not of inquiry ; the
Sovereign cannot refer a Resolution back to it for reconsidera
tion, or a petition to any other consultative body. While the
Sovereign had iu England reserved jurisdiction in dignities,
this has ceased, and the House ot Lords haa invested itself with
this jurisdiction. But if thia be acquiesced in by the Peera of
England, it cannot affect those of Scotland, whe have never
been under obligation to resort to the Sovereign, . 244, 245
5. If the report to the Crown be a formality, the worda of reference
are a mockery, ....... 245
6, The ultimate jurisdiction ia in the House of Lords, not the
Sovereign, ... ... 245
7. Per contra : The House has no legislative power aa regarda deter
mining claims to dignities, the right to vote at Holyrood, or
precedence ou the Union RoU, and can only act under power
conferred by the Acta of 1847 and 1851. Whence foUow two
coroUaries : — ..... 245, 246
i. General Resolutions affecting dignities legislatively, e-g- Lord
Rosebery's of 1822, have been ultra "vires, and if any such
now exist they are null and should be rescinded. The usur
pation by which they were passed is now acknowledged and
repudiated ; and their application has been illegal. If in
supersession of law they are condemned a fortiori, . . 246
ii. General rules as to peerage claims laid down by the House
have no legislative sanction, and are null, with aU that has
foUowed on them, when in opposition to the law ot the land,
e.g. a. The presumption iu favour of the heir-male in Scottish
peeragea, where the charter ia lost, arid no coUateral evidence
exists. When enforced te the injury of the heir-general,
aa in 1875, it ia difficult to see how the decision can be
vindicated even by the House. When words have been intro
duced into Reaolutions to mark and enforce the rule, they are
interpolations, forming no part ot it. b. The power to over
rule final judgments of the Court of Session, auch as those
of 1626, 1648, and 1633, ia struck at by this disavowal ot
legialative power, c. Lord Camden's rule that a charter of
comitatus not specially conveying the dignity, is a mere grant
of lands, ...... 247-249
General result : Much that waa nebiilona haa been fixed, in some
points favourably, in others unfavourably. The views ef the
past muat be modified, and corrections applied. For remedy,
where injury has been done, reaort muat be had to a competent
tribunal, ...... 250
Do. as affecting Lord Mar. He ia primd facie in a better poaitien
since debate and Select Committee ef 1877. Upon the opinions

xxxvi ANALYSIS OP CONTENTS. PAGE
in the speechea that the old Earldom was extinct, it waa con
sidered that the Order of 26th February 1875 might be issued ;
but it is now admitted to be an open question whether the
ancient Earldom ia or is not extinct. Gradual cessation of
qualification " claimant " appUed to heir-generaL Order of 26th
February neceasarily justified on the ground of exclusive juris
diction iu Scottish dignitiea, on which ground alone it can
be vindicated, as issued before approval by the Queen of the
Resolution, . ... 250, 251
Further, the application ot Lord Camden's mle to Queen Mary's
charter of 1565 waa without warrant, and it muat be held to
carry the dignity ; and the appUcation of Lord Mansfield's rule
in faveur ot heirs-general waa without warrant, and Lord Mar
aucceeded hia uncle. On the hypothesis of a new creation in
1565 also, the heir-general inherits under it, as advised by the
officers of the Crown. The abnegation of legislative power cuts
the ground from the feet of the Reaolution of 1875, and vindi
cates Lord Mar's right in the eyes ot the Houae, as now opened
to the limits ef its power ef action ; and this independently of
the acknowledgment that the House cannot supersede the final
judgment of 1626, ... . 251,252
Section II. — Act of 1847 defective in authority-
Beyond its beiug inapplicable to Lord Mar, there is a fatal flaw in
the Act 1847, in consequence of which it cannot legaUy be
applied even to the pretenders against whom it was directed.
!. In England, the jurisdietiou iu dignitiea ia in the Sovereign; the
House of Lorda advises the Sovereign, but does net judge. No
prerogative ef the Crowu can be taken away except by ex
press words iu an Act of Parliament. The Act 1847, which
attempts to alienate a privUege of the Crown by a side-wind is
therefore inept in law. It further proceeds under the faUacy
that Scottish claimants and peers are under an obligation to
submit themselves to the Sovereign according to the English
custom, ...... 252-254
2. In Scotland, jurisdiction in dignities is vested in the Court of
Sesaion, and reserved by Article 19 ot the Treaty ef Union.
No infringement of the authority of the Court can be effected
except by express enactment, and then only " for the manifest
benefit of the people of Scotland." The juriadiotiou of the
Crown, beiug purely permissive, cannot be usurped by the
House of Lords ; nor can the authority of the Court ot Session
be affected by disuse. The ti-amer of the Act, iu ignorance of
the interests they were meddling with, were giving away what
was not their own, . . . 254-256
3. The only plea in favour ot Act 1847 is, that being au Act of
Parliament it must be obeyed. It can only be vindicated by

ANALYSIS OF CONTENTS. xxxvii
- t- , • PAGE
the asaertion of the omnipotence of Parliament. Lord Cran-
worth's remarks ou this subject. Parliament of Great Britain
not omnipotent since the Union. Discussion in last Scottish
Parliament quoted, as to understanding en which the Peers of
Scotiaud consented to the Act of Union. Word " omnipotence''
impious at best, and since the Union inapplicable aa against
the la-wa of Scotland, . ... 256-258
Two Acts, one of Scotland before the Union (2d February 1707),
the other of Great Britain (6 Anne, c. 23), are referred to in 1847
and 1877 as a basia for aubaequent interference by Parliament
in eleotiona, but have no auch import. The Privy Council of
Scotland, whose abolition waa contemplated when the former
Act was paased, was abolished under the latter. The words,
"further provision,'' on which atreas ia laid, have exclusive
reference to the modification in the form of the writ of
summons to the Peera, required by the abolition of the Privy
Council ; but neither Act confera authority for future inter
ference, regulation, and legislation, which Act 1847 assumes
to be its own warrant, ..... 258-260
These two Acts show : — 1. That the election ia to be in independ
ence of extraneous authority. 2. That the Lord Clerk Register
has only to attend, ask for and register the votes, and report the
results. 3. That no power ia given to Parliament, stiU less the
House of Lords, to interfere in or regulate elections, take cog
nisance of righta to vote, or use the Lord Clerk Register as an
instrument to control the free action of the Peers. -Any such
interference ia an infraction of an Act declared to be aa valid as
it engrossed iu the Treaty of Union, . . . 260
The statement in the Report of the Select Committee of 1847 that
the Peerage of Scotland is a body unprovided with meana of
testing the right to vote, ahowa their ignorance that the quea-
tion of the right to vote pertaina by law to the Court of Sea
sion. Salvo at Union aa to proteata. It could net theu have
been conceived that a question regarding a right to vote could
be decided by any tribunal but the Court of Session. The
machinery for preventing the scandala contemplated exists
unimpaired, ...... 260, 261
The Act of 1847 waa paased hurriedly and inconsiderately. It does
not appear that the law offioera of the Crown were consulted, or
any inquiry made as to the law of Scotland. It can only be
classed along with the various inoperative remedies attempted
by Resolutien, and should be erased from the Statute Boek.
It ia a standing menace to subject the Peera of Scotland to a
Star-Chamber, from which the Sovereign ia excluded ; and fur-
niahes a precedent for proatration of the Peera ot England, 260-262
A few remarka, 1. ou the poaitien of the Peera and people of Scot
land, as affected by the Mar decision. Quote worda of my

;viii ANALYSIS OF CONTENTS. PAGE
Protests. Lord St. Leenards's proposal that claims to ancient
dignities should be discouraged by the House by putting a limi
tation en them. 2. Would it not be wise to return to the con
stitutional tribunal for deciding claims, the Court ot Session ?
The compact by which the Sovereign arbitrates has been broken
by the House enforcing its own rules, and overruling final
decisions of the Court of Session : and claimants re-enter their
original rights, • 262-264

LETTER XVL
LATER INCIDENTS IN THE CONTROVERSY.
The relative position of Lord Mar and the House of Lords remains
unchanged since 1877. Two elections have taken place at
Holyrood, and a converaatiou has taken place in the Houae of
Lorda on questions put by the Marquesa of Huntly, . 265
Section I. — Election of Ilth March 1879.
Notwithatanding the admissions of the House of Lorda, the Order
of 26th February 1875 to the Lord Clerk Register has been
enforced, the vote ot Lord Kellie received aa Earl of Mar, and
Lord Mar has been compelled to abstain from voting, 265, 266
I lodged my aecond protest, prefacing its rationes by a statement
of law and usage of Scotland affecting territorial Earldoms, and
pointed out that the Earl of Mar was not a claimant ; also that
he would, by the Scottish presumption of auccession, be entitled
to the Earldom of 1565, if it ever existed. On Mr. Maid-
ment'a advice, I abstained from protesting regarding the
nuUity ot the Act 1847. General rationes of protest cited, 266-268
Lord Stair adhered to my protest — protests of Marquess of Huntly,
Earl of Galloway, Earl of Mansfield, Lord Arbuthnett, and Lord
Strathallan. Protests received, and question if they are to be
recorded, . . ... 268, 269
Lord Elphinstone, after attacking a paper aupposed to be mine,
criticised the rationes of my pretest, aa did Lord Saltoun, who
made a couuter-proteat, adhered to by Lord Balfour of Burleigh.
Remarka by Lord Galloway, . . . 269-274
Section II. — Debate in House of Lords, 11th July 1879.
Lord Huntly inquired whether the proteata at last election had been
reported to House, aud proposed enforcing the Act of 1847
as regards Lord Kellie, whose vote had been protested againat,
by ordering him to establish his claim — an attempt to turn the
weapon ot tho Select Committee against Lord Mar's opponent.

ANALYSIS OF CONTENTS. xxxix PAGE
stating further that Lord KeUie's vote had been received in
respect of a peerage under attaint, . . . 275-278
Lord Cairns, decUning te discuss a question decided by the House,
directed himself to the two questions : — 1. Was the Lord Clerk
Register justified in receiving the vote of the Earl of KeUie as
Earl of Mar ? which he aaid depended on the meaning of the
Piesolution and Order ot 26th February. There is one entry
ot Earl of Mar in the RoU ot Peers, whether rightly er wrongly
placed, and the Lord Clerk Register muat caU it where he finds
it. 2. Ought the Protests to have been returned to the House
under the Act of 1847 ? The provisions of that Act cannot
apply to a Peer who has already established his title, . 278-281
Lord Blautyre characterised the decision ot 1875 as contrary to
common sense, . . 281, 282
Lord Redesdale called it presumption in a Peer to contest the
decision of the House on a point -n'hich uo ether body but
the House can decide. At the Union the Peers of Scotland
obtained the pri-yUeges of the Peers of England, and there is uo
privUege that the latter hold more dear than that the House ia
the sole judge whether they are entitled to their honoura. (The
Peers of England have no such privilege, and the right to a
peerage is here confounded with the privUeges of the peerage. )
None but theae who have investigated the e-vidence can pro
nounce an opinion on it. (True : but ia the evidence to be read
by the law of Scotland, or by private rulea of the House subver
sive of that law ? ) Aa to the question of precedence, he cited the
Order ot 1708 regarding proteata, by which he said the House
recognised its authority ou that subject. (On the contrary, it
recognised that ot the Court of Session, as shown in 1769-71.)
It would not invalidate the peerage, that the precedency was
wrong. He quoted the Order regarding the position ot the
barony of Dingwall in 1711. (This was the case of a peerage
not ou the Union RoU because dormant. Further reference to
DingwaU case.) Argued further that the date assigned in 1606
was 1457, when there was an Earl of Mar sitting in the Scot
tish Parliament, a younger son of James ii. (But, 1. Lord
Redesdale in hia speech in 1875 held the precedency to be from
1404. 2. The postponement to ErroU, on which the date 1457
is founded, ia of no force, aa ErroU owed his precedency to his
office as Conatable. 3. It waa impossible that the son of
Jamea ii. aUuded to could have aat in Parliament iu 1457, aa
he was then an infant.) That no other Earldom than that of
1565 exiats was proved by the extinction ef the old Earldom
for 500 yeara : the entry in the Decreet ot Ranking was there
fore erroneoua (refuted in Letter vu.) Lord Redesdale con
cluded by contrasting the fuU inquiriea made by the Houae
with the inquiry ot 1606, .... 282-289

xl ANALYSIS OF CONTENTS. PAGE
Lord Galloway, after vindicating the ranking of the Commissioners,
referred to the incompetency of the House te decide this quea-
tion, aud the reaervation at the Union ot the privileges ot the
Court of Session and the inviolability of its decisions ; and
also to the irregularity of sending off the Order to the Lord
Clerk Register betere the Resolution had been submitted to the
Sovereign. In 1626 the Court of Session declared that the
ancient Earldom stU existed, that the heirs had been tem
porarily deprived by usurpation in 1457, and that their wrongs
were redressed by Queen Mary in a charter which, by the law
of Scotland, conveyed the honours as well as the lands. He
further contended that Lord Mar waa not bound to claim a
right of which he ia iu legal possession, and concluded by
caUing the attention ot the House to the absence of all mention
ef the ancient Earldom in the Resolution of 1875 ; and to the
force of the word " restituere " in the charter of 1565, 289-294
Lord Selborne then gave utterance to opinions fatal to the peerage,
if not nation of Scotland; asserting that claims to Scottish
peerages are subject by Statute law to the determination of the
House of Lords exclusively, whose decisions have the force of
Statute law. The decision of the House ia that a certain Peer
age of Mar waa created by Queen Mary, and belonga to the
Earl of Kellie. Nothing has been decided regarding the
ancient Earldom, which may be claimed through the machinery
of the Act of 1847, . . 294-297
Remarks by Lord Stair and Lord Huntly, . . . 297
Everything in this debate is insignificant in comparison with Lord
Selborne's statement as to the conditions under which Scottish
dignitiea come before the House of Lords ; aa to which I must
protest that there is no statutory authority for the subordi
nation of the right to Scottish peeragea to the House of Lorda ;
that no such subordination could have been carried out except
in violation of the Treaty of Union, or can be carried out in
the future except under conditions tantamount to a revolu
tion ; tor the toUewing reasons, . . . 297, 298
I. The jurisdiction vested at the Union in the Court of Session
cannot be taken away except by Statute, and that for the
"manifest benefit of the people of Scotland," . 298
2. The jurisdiction in dignities having been veated by Statute in
the Court et Session, claimants can only petition the Sove
reign under a tacit compact. The Sovereign thus possess
ing no jurisdietiou, canuot impart jurisdiction to the Houae
ot Lords, ...... 299
3. No Statute has deprived the Court ot Session ot thia jurisdiction,
or bestowed it on the House of Lords, . . . 299
4. If Lord Selborne's affirmation is based on the Aet of 1847, his
error is still more grave. That Act only applies to pretenders.

ANALYSIS OF CONTENTS. xli
PAGE
not peera actually in possession ; aud the Aet has been else
where shown to be deficient in Constitutional authority, 299, 300
5. Were the jurisdiction in the Houae of Lorda by Statute, Lord
Mar's right haa uot been legaUy affected by anything done iu
that House, as — 1. That House having been advised iu oppoai
tion to Scottiah law, the Resolution and Order fall. 2. The
House had no power to affirm Lord KeUie's right aa againat
Lord Mar'a, the question being res judicata since 1626, 297-301
Lord Selborne's qualification ot the manner of proceeding not recon
cilable with his worda, the "usual course," that being by petition
to the Sovereign, not the House of Lords, . . .301
The distinction between Scottish and EngUsh claima, baaed on the
assumption that there is no statutory ascription of juriadiction
to the House of Lords in English eases, is correct, but in a
different sense from Lord Selborne's. English claims are under
the jurisdiction of the Sovereign, whieh never waa delegated
to the Courta of law, as Scottish claims were to the Court of
Seaaion. Fortunately Lord Selborne'a -views are hia own, un
sanctioned by the Select Committee, . 301, 302
Section 111.— Election of 1 6th April 1880.
Remarks of Lord Clerk Register on the mode in which protests
aud counter-pretests at last election had been recorded. Pro-
testa ef Marqueaa of Huntly, Earls of ErroU, Morton, Galloway,
Stair, Viscount Arbuthnett, and Lord Blautyre, againat vote of
Earl of Kellie as Earl of Mar. My own Protest ; those of Earl
ot Carnwath, Countesa of Rothes, and Lord Napier, . 302-305
Lord Saltoun'a couuter-proteat, adhered to by Lord Balfour of
Burleigh. Lord GaUoway objects to the mention of the House
of Lorda aa the Supreme Court adjudicating on the caae.
Speech of Marqueaa ot Lothian overlooking the fact that the
Sovereign ia the judge. Further remarks by Lord GaUoway.
Lord Elphinatone re-introducing queatiou of aUeged canceUing
of preaentation at Court, aud denial of precedence to Earl of
Mar'a aiaters, wrongly representing Lyon's opinion. Duke of
Buccleuch objected to Lord Galloway'a atatement that a
deciaion of the House of Lords was au opinion, not a judg
ment. The Lord Clerk Register received vote of Earl of
KeUie, but also received Protests, . . . 305-314
During the incidents related in this Letter no change has taken
place in the broad features of the case ; but Lord GaUoway
aud Lord Blautyre have been added to those atruggling for the
maintenance of law and the Treaty of Union. We have fifteen
pretesting peers, aa against two counter-protesters supported
by three other peera, . . ¦ 315, 316

xlii ANALYSIS OF CONTENTS.
LETTER XVI L
CHARGES AGAINST MYSELF.
PAGE
The second category ot charges against myself reserved to the close
remain to be met. They are, . . . .317
1. Inconsistency in argument as circumstances vary ; viz.: — 318, 319
i. My aUeged ancestor, in 1706, in a precedency action against
him by Earl ot Sutherland, is said to have argued in favour
of the presumption for male descent. Were the then Earl of
Crawford my ancestor, which he was not, his having founded
on a plea which I denounce cannot infer inconsistency in me.
The decreet in that action was not a final judgment, and
opened again by Sutherland in 1746. That the Lords of
Session in 1706 recognised the abstract law ot succession, as
in the Oliphant case, ia evident from the Lovat judgment of
1702, . . ... 319, 320
ii. In theory I am aaid to be iu favour of female succession, but
to exclude females in my o-wn Earldom. In the Earldom of
Crawford females are excluded, net by presumption of law,
but by the exception, as shown by the succeaaion, . 320-322
iii. The decision in my father's faveur in the Cra-wford claim ia
aaid by Lord Kellie to have been in oppoaition to the OUphant
case — this waa for the same reason not so, . 322
iv. Still leas is Lord Kellie justified in interring that in the Craw
ford claim the House of Lords did not consider the law inthe
Oliphant case "inf aUible." The supposition that the House
considered itself at liberty to disregard a solemn and final
decision ot the Court of Session is the atrongest poaaible con
demnation of the Houae. They did not so in the Crawford
case, though they did in the CassUUa and other cases, 322, 323
V. In the Montrose case I am said to have -wished to construe a
remainder "h£eredibiia suis" aa te heira-male. Heu-s ia a
flexible term — see Erskine — and the heirs under the investi
tures were heirs-male, . . . 323-325
vi. My protestation in favour of Lord Mar's right under the rule
laid down in the Oliphant case not inconsistent with my
advocacy ot the recognised exception in the Crawford and
Montrose cases, . . . 325. 326
vii. I am aaid to have quoted part et the Oliphant judgment for
another purpose. The other interlocutors had no reference
to the general law of succession, .... 326
2. My intervention in behalf of Lord M.ir said to proceed from au
interested advocate, animated by hestility to the House ot
Lords, aa a disappointed claimant. Cite worda in my Address
in this connection. I do not quarrel -with the word " disap-

ANALYSIS OP CONTENTS. xliii PAGE
pointed." Did I use these words withoiit weighing their im
port ? 'Were they true ? They were prefixed to a published
Report iu which nothing was aUeged without proof, and whose
fairness and accuracy were never questioned. Lord Kellie is
wrong in enumerating as the Committee for PrivUeges " Lords
Lyndhurst, Brougham, St. Leonards, Cranworth, and Redes
dale, who were unanimous." The entire hearing waa comprised
between the 18th July and 5th August ; and judgment was
pronounced eleven days after the reply for the claimant, aud
before the evidence had been printed. Criticism by au American
supreme judge. The charitable construction would be to re
gard my action as animated by a sense of justice, rather than
by petty pique against the agents of that injustice, . 326-.334

LETTER XV IIL
WHAT REMEDY ?
I have now to consider the ciuestion ot remedy both as regarda Lord
Mar and the peera and people of Scotland, with practical
suggestions, . ... 335
Section I. — General considerations.
1. In respect ot Lord Mar, the cancelling of the Order of 26th Feb
ruary 1875 would remove the obstacle to the exercise ef hia
righta, and be the logical conaequence of the viewa of the Select
Committee. The House has admitted that it possesses no
legislative power except under the Act of 1847, and no power
to tamper with the Union RoU. It follows that its private
rulea canuot auperaede the law ot Scotiaud. But thia Order,
apart from its other flaw, reverses the precedence ef the ReU ;
and the Resolution proceeds upon rulea opposed to the law
of Scotiaud. The Reaolution may be aUowed to wither ; but
the Order ought to be canceUed, . . 335, 336
2. The remedy aa affecting the peera and people of Scotland
opens a broader field. My Protest quoted as to cauaes of perU.
The House having since taken a further step towards absolu
tism, the perUa are nearer ; aud the remedy is a reversion to
the usage of referring peerage claima and disputes at elections
at Holyrood to the Court of Session, . . . 336-339
Section II. — Enumeration of perils.
(I.) The dominant peril, from which nearly all the rest apring, ia the
assumption by the Houae of abaolute jurisdiction in dignities.
It is not a novelty, and haa been exercised rather than asserted.

xliv ANALYSIS OP CONTENTS. PAGE
but has been recognised neither by Crown nor courta of law.
In the English Houae of Lorda before the Union it haa been
successfully resisted. Soon after the Union the Houae wel
comed petitiona from the Duke of Hamilton and others
aggrieved by the result of an election ; aud after inquiry,
passed a General Resolution (applicable to the Duke of Queena-
berry) that a peer of Scotiaud who waa alao a peer of Great
Britain had no right to vote at eleotiona. In 1711, another
General Resolution waa paaaed (in the case of the Duke of
Hamilton and Brandon) that a peer of Great Britain who ia
alao a peer of Scotland cannot sit in Parliament as a British
peer. This Resolution was disallowed in 1782 on petition by
the Duke of Hamilton to the Sovereign, aud en hearing the
opinions of the judges. Except in certain proceedinga iu 1790,
the Houae haa never since assumed the same independent
authority tiU 1875. It had however been more sucoesaful iu
appropriating the character of a court of appeal from the Court
ot Session. But both the General Resolutions referred to (re
garding British peers who were also peers of Scotland), and
the General Order regarding execution of sentences of the
Court of Session, were acts of legislation, the former au inva
sion ot the royal prerogative, . . . 339-343
(2.) The affirmation that the House ot Lords may "judge" iu
peerage claims on ground of expediency as weU as law, as laid
down in Sutherland and Cassillis cases. It affects claimanta iu
two pointa, . ... 343
I. As to the quality and limits of the opposition which may be
offered. Lord Brougham's adoption of this -view in the Mon
trose case has been developed by the Committee into three
principles — 1. That it is optional for the officers of the
Crown to inquire and oppose, or not, and that Committees
fer Privileges may protect the Crowu from the expense and
trouble of opposition. 2. That if the officers of the Crown
dechne to inquire and oppose, an abaolute atranger, recog
nised to have no interest, may interpose to supply the Crowu
with evidence and argument towards the defeat of a claim,
to lodge cases for the officers of the Crowu to argue upon,
without the latter being responsible ; the counsel for auch
atranger may sit with the officers ot the Crown, aud act lor
them in their absence. 3. That when a claim ia advised
which depends ou the nullity of au older title of the aame
name, alleged to be extinct, the peer iu possession of the eld
title may or must be refused his title aud compeUed to defend
himself as a commouer, and to abstain from voting at Holyrood
till the claim is determined on — aa in the Mar case. If under
tbe Act of 1847, the Duke et Hamilton, e.g. were brought up
te prove his title, the House must refuse to recognise him as

ANALYSIS OF CONTENTS. xlv
PAGE
Duke till the aUegation of the two protesting peers is decided
on, . . . . . 345, 346
2. As regards the immunity of peerage claims from prescription,
it has been laid do"wu that in the view of the expense and
trouble of peerage claims, they should be discouraged by a
bar ot prescription. This suggestion, made in the Cassillis
case, and revived in the Montrose caae, would atrike at the
authority and judgments ef the Court of Session before aud
even since the Union ; the private rights ot Scottish subjects ;
the royal prerogative ; public policy ; and the very roots of
the Scottish Peerage, . . . 346-348
(3.) The reveraal by House of Lorda of accepted rulea regarding dig
nities, aud establishing new rulea, to be brought forth as
weapons when the old are pleaded. Such are the rulea of Lord
Mansfield and Lord Camden, againat whioh these Letters have
been a protest. A further series ef innovations, aa initiated in
the Montrose claim, given, with the corrective truths from
Address to Her Majesty in Report ot Montrose claim, 348-353
(4.) The power exercised by the Houae to supersede final judgments
of the Court of Seasion before the Union — e-g- diaallowance of
Oliphant judgment ef 1 633 ; ot Eglinton judgment of 1648 ; of
Mar and Elphinstone judgment ot 1626 ; a peril affecting other
interests besides peerage. Worda ot Earl of Glencairn in
1649, ...... 353-355
(5.) The principle (a recent one) that a Committee tor Privileges ia
not bound by the viewa on which a previoua Committee haa
founded ita Report iUustrated in cases of the Dukedom of Nor
folk (1425) ; Earldom of Devon (1830-1) ; Dukedom ot Montrose
(1853) ; Earldom of Wiltes (1862) ; and Earldom of Mar (1875).
Ita effect is twofold : claimants are delivered from crude
opinions in former Committees being enforced aa precedents ;
and, on the other hand, they are deprived of aU laudmarka for
guidance. The result ia utter uncertainty, -with a chance of
relapsing into sounder views. The Wiltea decision shows a break
ot continuity in the traditions of the House as advisers of the
Sovereign. My experience of Committees haa led me to dia-
courage claimanta who have consulted me, . 356-363
(6.) A Committee for Privileges may report againat an apprehended
claim before it haa been advanced, in order to preclude its being
advanced. The competency of this proceeding was negatived
by the Court of King's Bench in 1694 ; but it was revived in
the Montrose and Mar caaes, .... 364-366
(7.) The general diaregard by the House of Lorda of the provision for
the rights of Scottish subjects in the Treaty of Union. The Act
of 1847 is a fiagrant instance. Other interests are affected as
well as peerages. Noble Lords at Holyrood have boasted that
they were British peers, entitled to have their rights adjudicated

xlvi ANALYSIS OF CONTENTS. PAGE
OU by the House of Lords exclusively, confounding the privi-
legea of a peer with the right to a peerage, . 366, 367
(8.) After the injury already inflicted on the heirs to the dignities
of Glencairn, Montrose, Mar, in the past, what may be expected
in the future? . . 367-369

Section III. — Disadvantages of the jyresent usage-
Interference ot the Legislature would make matters worse ; and
resort to the Court of Session ia the proper remedy. 'Where
interests are at stake dependent on the laws of a country, aud
the Court is the supreme tribunal of that country, presided
over by men couversaut -with the law and precedents, justice
muat be better administered than by the tribunal ot a foreign
country, presided over by men trained in a different school, 369, 370
The Houae of Lorda, aa a Court ot Appeal, decides, after fuU con
sideration of the judgments of the Court of Session ; but iu the
investigation ot claims to dignities under reference from the
Crown, they only become acquainted with the caae through the
pleadings of counsel, ..... 371
The objection to a foreign tribunal is stronger since the Houae has
asaerted an absolute jurisdiction, out off aU opportunity of re
monstrance, and precluded the Sovereign from announcing his
award. The contrast is between the Court of Session, -with the
ablest Scottish lawyers aa judgea, and Committees iu which
three, two, or one noble Lord haa decided claima to peerage, 371
While the Sovereign took advice where it could best be had, aa
George i., from the law officers of the Crown for Scotland,
in the Kirkcudbright case, the system was leaa objectionable,
but the Order ot 26th February 1875, the aasumption of abso
lute juriadiction by the Houae of Lorda, and the speech of Lord
Selborne, have signed ita death-warrant, . . 371, 372
Practical detaila of procedure before House of Lords in case of a
claim to a Scottish dignity. The lay peers are dummies, aud
the Committee guided by the law Lords, an exception being
allowed in caae ot Lord Redesdale. The case ia dra-wn by
Scottish counsel ; but with two exceptiona they are uot
allowed to plead. The English counsel who plead in peerage
claima are overburdened with work, and require the case te be
mastered by counael of leaa distinction, who " insenae " them
with the argument. The Engliah counsel sometimes object to
the expositions of law, alter passages iu the Cases, or take their
own line, as more effective with the law Lords, with the beat
intention, but at risk of running on sunken rocks. Temptation
to subordinate Scottiah to English views. Three transitional
stepa between claimant or Scottiah counsel and Sovereign  the
EngUah aub-couusel, the Knglish counsel, and the English law

ANALYSIS OF CONTENTS. xlvii PAGE
Lords. Difficulty in getting English counsel to take iu the
prineiplea of Scottiah law or the aystem iu which dignitiea
are rooted, ...... 372-375
The law Lorda are Engliah lawyers untrained in the feudal law of
Scotland, which is expounded to them by English counsel pre
disposed to hold deciaiona of the Court of Session cheap, and to
forget that they are only a consultative body. They cannot
descend to fundamental principle. The counsel being staggered
by an unexpected question, a faUaey which he feels impotent
to deal with, from ignorance of Scotch law, they have to feel
their way. Difficulty from cases dra-wn up by adherents of
orthodox and heterodox schools, . . 375, 376
Henee the advisera of Committees form rules of their own, asauming
that there was nothing settled in the law of Scotland betere
the Union, a beUef which would have been dispelled by perusal
of the standard inatitutional writers of Scotland, or consulta
tion of the Scottiah judgea. The Committeea exhibit the
apeotacle of bodies ahifty, uebuloua, and erratic, bound by uo
precedent, claimiug a large diaoretion, so that there can be no
confidence in their conaiatency. Moreover, the Houae has ex
cluded the Sovereign from the claimant'a view, and proclaimed
itself a Star-Chamber, but -without the Sovereign, . 377, 378
Scottish claimants are therefore deprived of the protection to which
they are entitled, not only by the Treaty ot Union, but on the
principles of univeraal justice. In the Mar case, two learned
Lorda and the Chairman of Committees have attempted to undo
what the Queen of Scotland with co-operation of her CouncU
and the Supreme Court, and universal acquieacence tUl now,
carried through in vindication of juatioe ; and to the effect
that, if the Report be acquiesced in, Scotiaud wUl be deprived
of her oldest sur-viving dignity, . . 378, 379
Section IV. — Proper remedy- — To resort to the Court of Session-
Pi. resumption recommended of the usage discontinued since 1730
and 1746, a discontinuance imputable to the action of claimants,
not to any laches on the part of the Court of Sesaion. Shown
in former Letter to be a competent tribunal : and affirmed to
be so by Lord Mansfield. There ia no precedent tor an appeal
in such caaes ; and even could auch take place, the claimant'a
poaitien would be far more tolerable than at present, . 378-380
It waa admitted by Lord St. Leonarda in 1853 that the Treaty of
Union gave no sanction of the deprivation ef the Court of
Seaaion of the right to judge in peerages, if they poaaessed it
before, which he doubted. His bewUderment and question how
the Houae got any jurisdiction in peerage claima answered in
my Address to Her Majesty. It requires a apecially trained

xlviii ANALYSIS OF CONTENTS. PAGE
tribunal te judge where the laws of Scotland and England are at
variance ; aud the moral justification ot the licence accorded to
counsel in their preaentments ot law is the presumption of the
competency et the judges to expoae fallacies, qualifications
which foreign judges cannot posaesa, . . 380-383
Recourse to the Court ot Seasion is the mere appropriate that it is
by misapprehension that claima have been aubmitted to the
Sovereign. The Kings of Scotiaud divested themselves of this
right, and the right te resort to the Court of Session and cor
relative obligation ia protected by the Treaty of Union, 383, 384
The Court of Session ia also the proper tribunal in queationa arising
on claims te vote at Holyrood. Questions of right to peerage
were decided by the Court before the Union, and no power was
taken from it at that time. The Pretests transferred to the
books of the House of Lords iu 1708 were for remedy at the
hands of the Session, and their validity as auch was recognised
aa late aa 1771. The Lord Clerk Register has been subjected
by no Act of Parliament to the dictation of the House of Lords,
aud is bound to act in accordance with the higher obligation
of the laws of his country, .... 384, 385
The powera of the Act of 1847, more Umited than aupposed by the
Select Committee of 1877, must fall with that Act, which
asaumea that neither Crowu nor Court of Sesaion haa any con
cern in its subject-matter, . ... 385
Concluding address to Lord Glasgow, . 385, 386

APPENDIX. No. L
Letters by Lord Redesdale.
(1.) From The Times of 6th July 1877, 389
(2.) To Earl of Crawford, I9th May 1879, . 391
No. II.
Debate on Motion oj? Duke of Buccleuch relative to the Earl
dom of Mar, House of Lords, 9th July 1877, . . 393
No. HI.
Debate on Motion of Marquess of Huntly, House of Lorda llth
July 1879, ... . . 418

CONTENTS OF APPENDIX. xlix

No. IV.
Letter from Earl of Crawford in "Morning Post,' 1st July
1880, . ..... 439

No. V.
Debate in House of Lords, 14th June 1880, . 443
No. VI.
Debate in House of Lords, Juno-July 1880, . . . 463
No. VII.
Return of Protests at Holyrood from 1865 to 1880, . 482

VOL. II.

THE EARLDOM OF MAR.

THE EARLDOM OF MAR.

LETTEE VII.
DECREET OF RANKING AND UNION ROLL.
I HAVE stated as matter of fact and history, in its due
chronological place in the preceding Letter, that, in the Decreet
of Banking of the Scottish nobdity pronounced by the Boyal
Commissioners in 1606, the Commissioners assigned a pre
cedency to John Earl of Mar much higher than 'would be
correct, could it be established that the existing Earldom 'was
a ne'w creation by a lost patent in 1565. No less than
seven Earls created previously to 1565, namely, Eothes,
Morton, Menteith, Eglinton, Montrose, Cassillis, and Caithness,
are postponed to Mar by that Decreet. The fact is admitted
on all sides, and equally so that the same relative ranking is
perpetuated in 'what is called the Union EoU, or roll of the
Scottish peerage called at all elections of Scottish Eepresenta-
tive Peers since 1 707. These facts furnish a strong argument
against the presumption of a ne'w creation in 1565, and can
only be accounted for by the admission that the Earldom re
stored in 1565 'was the ancient dignity: -whence it foUo'ws
ex necessitate that the heir-general, not the heir-male, is, entitled
to vote as Earl of Mar at the election of Scottish Eepresentative
Peers at Holyrood. Hence the efforts of Lord Mar's opponents
have been directed to the depreciation alike of the Union Boll
and of the Decreet of Banking, 'which is its basis. I 'was un'will-
ing to interrupt the course of my narrative of the recovery of
the estates of the Earldom by dealing 'with the questions that
VOL. II. A

2 THE EARLDOM OF MAR. let. vii.
have arisen upon the Decreet of Banking and Union Boll, and
'which might be more conveniently dealt 'with in a separate
Letter. The present appears to me the most fitting place for
the discussion. I am especially bound to do it justice, inas
much as Lord Kellie, declining to be dra'wn into controversy
on any other points in my recent protests at Holyrood —
assuming them to be condemned already by the simple
force of the Besolution and the speeches in the Committee
for Privileges in 1875 — has challenged me categorically on
the subject of the Decreet of 1606 and the Union Boll, and of
the evidence afforded by the Decreet of Banking in particular
to the antiquity of the existing Earldom of Mar. I am ready
to meet him on this point, and with this 'vie'w I shall invert
the order I have hitherto observed ; and instead of stating the
facts as supported by evidence in the first instance, and dealing
'with the objections afterwards, I shall in this Letter state the
objections first, in deference to Lord Kellie's challenge, and
conclude by refuting them by vindication of what I maintain to
be the truth. I cannot, however, dissociate Lord Kellie's
animadversions from those which Lord Chelmsford and Lord
Bedesdale passed upon the Decreet of Banking in 1875, not
merely because everything which falls from these distinguished
men requires my most respectful consideration, but because
Lord Kellie's letter proceeds throughout, except in one particu
lar, on their speeches as its basis. I am also bound to take
notice of some criticisms by Lord Bedesdale in a letter to the
Ti'mes of 6th July 1877, commenting on earlier observations of
mine in a paper on the subject of the Duke of Buccleuch's
proposed Besolution of the 2d of that month ; and I am under
a still stronger obligation to give full response to a letter with
which he honoured myself on the 19th May 1879, developing,
enforcing, but partly in correction of, what he had uttered in
1875. I requested his permission to decline replying to this
letter till I could do so satisfactorily in connection with my
reply to the challenge of. Lord Kellie. The criticisms of Lord
Chelmsford and Lord Bedesdale refer exclusively to the Mar
precedency in the Union Boll ; but Lord Kellie's observations
point, if I mistake not, to the expediency of future action with
the view of bringing the Union EoU into conformity with the
Besolution arrived at by the House of Lords in 1875, the

SECT. I. THE EAELDOM OF MAR. 3
Besolution and the Boll being at present undeniably discre
pant. I shall reserve comment on this ulterior point to a later
stage in the development of the Mar drama.
I shall place before the reader at the threshold the passages
in my two Protests to which Lord Kellie's challenge points —
passages in which I have founded upon the Decreet of Banking
and the Union EoU as affording indisputable proof, subsidiary
to that afforded by the decreet in the Mar and Elphinstone
process in 1626, that the existing Earldom of Mar is not a new
creation in 1565 by a lost charter of what Lord Bedesdale
habitually speaks of as a " peerage-earldom," but the ancient
feudal Earldom, restored in 1565 fer Tnodum justitiee by the
existing charter of the Comitatus to John Lord Erskine "et
hseredibus suis," and descendible under this charter to heirs-
general, held in that right by Earl John in 1606 when he was
ranked with a precedency from 1404, and now vested by the
same right, as well as through the, jus sanguinis, in the present
heir-general, the direct and lineal descendant of Eobert Earl of
Marin 1438. The references to the Decreet of Banking and
the Union Boll in these Protests proceed, as in all such remon
strances for remeid of justice, on the assumption that the true
character and import of these documents are understood and
appreciated by those to whom the Protests are addressed. It
is not in a protest that principles and facts demand exposition
and probation. The place for probation is either before or
subsequently to such remonstrance, when the justice of the
appeal has been questioned, as in the present case, both by
Lord Kellie and by Lord Bedesdale. Section I.
Ohjections stated.
The passages in my Protests objected to by Lord Kellie are
as foUows : —
The second article in my first Protest — against the accept
ance of the vote of the Earl of Kellie as Earl of Mar at the
election of 1875, in prejudice of the legal right of the heir-
general — proceeds on the following grounds : —
" Because the Eesolution of the Committee of Privileges, proceeding
on the assumed invalidity nt supra of charters aud documents which the

4 THE EAELDOM OF MAE. let. vii.
Court of Session has pronounced legal and valid," i.e. by the judgment
of 1626, "has disregarded the evidence of the Decreet of Banking,
issued by the Eoyal Commissioners in 1606, -which assigns precedency
to the Earldom of Mar from 1404, in virtue of the charters and
documents in question, in full recognition and affirmation of the con
tinuous descent of the Earldom from that year, and iu the succession
of heirs-general established thereby — thus leaving (as before) no
opening for the theory of a new creation in 1565. The Eesolution of
the Committee of Privileges, and the award in the Decreet of Banking
in 1 606, are thus, once more, in absolute contradiction. But, inasmuch
as the awards of the Eoyal Commissioners in 1606 are pronounced
unalterable till reduced by legal process before the Court of Session ;
and these awards, and the judgments of the Court of Session in rectifi
cation of these awards, were observed and enforced by Parliament, as
in duty bound ; and the precedency of Mar grounded ut supra has
never been reduced, and stands on the Union Eoll — which roll derives
its warrant exclusively, not from Parliament, but from the Decreet of
Banking, of which, corrected by the judgments of the Court of Session,
it is a transcript ; and, thus sanctioned, cannot legally be ignored or
dealt with by any incompetent hand : And further, inasmuch as aU
subsequent courts of law and commissions of inquiry are bound to
decide or report in conformity with the Decreet of Banking and the
' Union Boll, and Lord Mansfield gave due weight to the Decreet in his
address to the Committee of Privileges upon the Sutherland claim,
which was a parallel case, in 1771 ; aud finally, the Committee of
Privileges has not reported in such conformity in 1875 — it follows
necessarily that the Eesolution of the Committee cannot weigh against
the ruling of the Decreet of Banking and ofthe Union Boll as above set
forth, and that the Earl of Kellie has no right to vote under that
Besolution as Earl of Mar."
The fifth article of my said first Protest proceeds thus iu
application of what is premised : —
" Because, inasmuch as the Earldom of Mar existing in 1606 and
1707, forfeited in 1715 and restored in 1824, is by the supreme
authority of the Court of Session and by the Decreet of Banking (the
basis and warrant of the Union Boll), the identical Earldom which
existed in 1404 ; and the suggestion of an Earldom of Mar created in
1565, probably by charter, and presumably with a limitation to heirs-
male, is thus inadmissible, — it follows as a necessary consequence that
DO such alleged Earldom of Mar, created iu 1565, is now, can be now,
or may at any future time be placed upon the Union Eoll, or can be
constructively included within its category."
In my Second or Additional Protest lodged at the election
of 1876, I stated the historical circumstances under which the

SECT. I. THE EAELDOM OF MAE. 5
Decreet of Banking was pronounced, and the proviso for
reference to the Court of Session in cases where parties felt
themselves aggrieved, as also the evidence upon which the
precedency was assigned to Mar, — that precedency being im
mediately after the Earl of Sutherland and before the Earl of
Eothes, — the Commissioners thus assigning to him the date of
the charter 9th December 1404, as confirmed by Eobert iii.
" as his proper place of precedency, and in this place the Earls
of Mar sat until the Union." The operation of the reference
in the Decreet of Banking was illustrated in 1626, when the
Countess of Buchan (in her own right) ha'vdng been placed
lower down than she ought to have been, brought an action of
reduction (with consent of her husband) before the Court of
Session, and ha'ving produced satisfactory evidence, a decreet
in her favour by the Court put her in her proper place, in cor
rection of the Decreet of Banking. But no challenge was ever
made by any peer of earlier creation than 1565 — and on the
theory of Lord Kellie there were six such peers unjustly post
poned — to the precedence assigned to Mar from 1404. And in
the Sutherland case, Lord Mansfield laid great and just stress
on the similar non-challenge on the part of ten Earls postponed
to Sutherland, as proof that there could have been no new
creation by a lost patent between 1514 and 1517,— the same
contention wliich has been raised as to a new Mar creation by a
lost patent in 1565. Nothing is said in the Decreet of Banking
as to a second Earldom of Mar, created in 1565. If there had
been such second creation, it must have been brought before
the Commissioners. A catalogue has been preserved of every
document which was adduced or referred to on the occasion.
James vi.'s attachment to the Erskines would have induced his
attention to such a poiat. The Decreet of Banking was issued
only forty-one years after the restoration by Queen Mary,
and many were living who must have known what then took
place. Upon these facts I grounded the foUo'wing rationes of
remonstrance in the Second or Additional Protest : —
" ' IV. King James the Sixth having appointed Commissioners to
settle the precedency of the peers, subject to correction upon challenge
and proof by the Court of Session, the court of final appeal in all such
cases, and the Commissioners having issued the Decreet of Banking in
March 1606, and the Court having corrected it from time to time iu

6 THE EAELDOM OF MAE. let. vii.
the cases of Buchan, Glencairn, and others, as shown in the Bolls of
Parliament and in the laat Eoll, styled the Union Eoll ; and having
passed its solemn and final judgment upon the charters 12th August
and 9 th December 1404, — the ranking of the Earldom of Mar in
the Decreet of Banking from 1404, thus sanctioned, cannot, under tlie
attendant circumstances, be now challenged in any court of the United
Kingdom.' And 'VI. There being no Peerage of Mar on the Union
Boll other than that which is referred to the ancient territorial Earls,
and was afterwards in possession of John, subsequently attainted for
high treason, and no claim for any new Earldom having been advanced
in the Banking and Decreet pronounced in March 1606, it follows as a
necessary consequence that no new creation was made, and that the
assertion that there was such is unfounded. The allegation to that
effect maintained by the Earl of Kellie is therefore not grounded on
fact, and must be rejected.' Lastly, ' VIII. There not having been,
moreover, any authority to assign a place in the Union BoU to tbe
Earl of Kellie by the Committee, the Lord Clerk Eegister cannot, in the
discharge of his ministerial duty, give him one.' "
The objections to these words, as gathered from Lord
Kellie's Letter, from the speeches of Lord Chelmsford and
Lord Bedesdale to the Committee of Pri-vileges, and from
Lord Bedesdale's Letters, may be classified under the two
heads of General Objections affecting the accuracy and trust
worthiness of the Decreet of Banking as a pubKc document,
and Special Objections affecting the accuracy of the ranking of
the Earldom of Mar in particular, and the relevancy of my
argument in favour of the heir-general based upon the assump
tion of such accuracy. They are as follows : —
I. General. The Decreet of Banking of 1606 is discredited,
with all that has foUowed upon it, including the Union EoU,
on general grounds —
(1.) Because it proceeded on mere superficial inquiry.
(2.) Because the Commissioners who pronounced it had no
means of knowing in any case whether evidence was
withheld from them which would affect the order of
precedence founded upon the proofs before them.
(3.) Because the precedencies awarded have been found to be
erroneous in many instances, and notably in the cases
of Buchan and Clencairn.
It follows therefore that the Decreet is open, generaUy, to
revision, disallowance, and suspension by — as is assumed — the
House of Lords ; and the Bolls of the Scottish Parliament, and
the Boll commonly styled the Union Boll in particular, are

SECT. I. THE EAELDOM OF MAE. 7
equaUy untrustworthy, in so far as they are grounded upon the
Decreet of Banking.
II. Special. The Decreet of Banking and all that has
foUowed upon it is discredited specially in the case of Mar —
(1.) Because the Commissioners acted and the Decreet pro
ceeded in ignorance of the true facts of the case affect
ing the Mar precedency, in consequence of Earl John
having adduced evidence which, as exclusively relating
to the territorial earldom or fief, did not bear upon the
question of the dignity and its precedency, and of his
having withheld the knowledge of historical facts, and
fraudulently suppressed and subsequently destroyed
documents, which facts and documents, if known to the
Commissioners, would have induced them to award the
precedency solely from 1565, on the same grounds upon
which the House of Lords have reported in favour of
Lord Kelhe. The result was that the Commissioners
were induced by the fraudulent action in question, and in
ignorance ut supra of the truth, to assign an erroneous
precedency to Mar, higher by a century than 1565, the
date of the creation of the " peerage-earldom " by Queen
Mary.
(2.) Because — in refutation of the idea entertained by Lord
Mar's friends and by myself, that the existing charter
of 1565 restored the ancient territorial earldom, fief and
dignity, as held under the charter 9th December 1404
and its confirmation, and that the Commissioners who
accepted that charter as evidence recognised the prece
dency accordingly from 1404 — it appears that the Com
missioners took especial pains to point out, in granting
the precedency, that they did not do so on the ground
of the earldom existing in 1606 being the ancient
earldom. This was made equally clear under either of
the alternatives, that the precedency granted was from
1404 or from 1457, —
1. Viewing the precedency as from 1404, according to
Lord Bedesdale's -view in 1875, they granted it as
" a fancy title," refusing to recognise any right to
the Earldom as in the Countess Isabel ; or,
2. Viewing the precedency as from 1457, according to
T,oTd Kfillifi and tn Lord Pfidesdale's revised opinion

8 ' THE EAELDOM OF MAE. let. vii.
iu 1879, they fixed upon that date, posterior to the
ranking of Erroll and Marischal, by deUberate choice,
because an Earl of Mar of later creation, not of the
house of Erskine, and from whom Earl John could
make no claim by descent, was Uving in that year ;
and by giving Earl John precedency from that year
they made it clear that the dignity held by him was
not the ancient Earldom of Mar, which had been
extinct in fact (as held by Lord Bedesdale in 1875)
since 1377 through failure of male heirs, but a new
and personal creation.
According both to Lord KelUe and Lord Bedesdale in
particular, I am thus decidedly wrong in dating the pre
cedency actually awarded as from 1404. Why the
precedency was not awarded from 1565, the date when
the dignity reappears in the public records, is not
accounted for, except by the suggestion by Lord KeUie,
already noticed, that Queen Mary may have granted a
special precedency above 1565. Lord Bedesdale leaves
the difficulty without solution.
(3.) Because the error of the Commissioners in ranking the
Earldom of Mar so much earlier than it was entitled to
did not escape contemporary notice and remonstrance ;
inasmuch as six Earls, Menteith, Morton, Montrose,
Eglinton, Glencairn, and CassUUs, created previously to
1565, and who were prejudiced by the high precedency
granted to Mar, " not only protested," as Lord KelUe
states it, " but instituted proceedings for reduction of that
precedence," before the Court of Session, in 1622. Earl
John subsequently, iu 1628, obtained %^arious retours to
the ancient Earls of Mar, Isabel's predecessors, in order
to fortify his claim.
It follows that the Decreet of Banking was open to dis
allowance on the part of the House of Lords in 1875 on this
special point of the Mar precedency, inasmuch as all the
documents and historical evidence which were (as asserted)
withheld from the Commissioners in 1606, Avere before the
Committee of Privileges in 1875; and this evidence proves
beyond dispute that the dignity of Earl of IMar was a new
creation in 1565, by a lost charter or patent, of a personal
dignity, in terms of the Eesolution. It foUows as a necessary

SECT. I. THE EAELDOM OF MAE. 9
consequence that if the Decreet of Banking is thus peccant in
the case of Mar, the Union Boll, which is fundamentally the
same document, must share in the discredit, general as weU as
special; and this impression appears to me not obscurely indi
cated in Lord Kellie's recent Letter. I may add, in fine, that it
is assumed that the cases of Sutherland and Mar, as deter
mined by the House of Lords in 1771 and 1875, are parallel as
respects the Decreet of Banking and otherwise, anddisprove
any claim on the part of the Mar heirs-general.
I shaU go through these objections seriatim, quoting the
animadversions of Lord Mar's opponents under the respective
heads, and referring the reader to the consecutive text of Lord
KeUie's Letter as given in the first or introductory Letter of
the present series. Lord Bedesdale's letters may also be seen
in extenso in the Appendix. I had at first intended to place
the whole of them in sequence before the reader, as well as the
passages in the speeches in Committee which bear upon the
subject ; but consideration of space and the expediency of con
centration have induced me to adopt the arrangement just
indicated. My broad answer to these objections is that, second to the
decreet of 1626, the Decreet of Banking in 1606 affords direct
and irrefragable evidence of the fact that the existing dignity
of Earl of Mar was a restoration per modum justitia?, and not a
new creation in 1565, inasmuch as it enjoys a precedency in
the Decreet of Eanliing and in the Union Boll incompatible
with the latter alternative, and only to be accounted for by the
former. Section II.
Historical view of Decreet and of Union RoU.
The discredit sought to be attached to the Decreet of
Banking alike in a general and special point of view, and to
the Union BoU, which is its heir and representative, wUl be
found, I think, to disappear on subjecting the document to
close scrutiny. I shall therefore, with the reader's permission,
and as a necessary preliminary, narrate the circumstances
under which the Decreet was pronounced, and exhibit its
character and sanction, and its relation to the Union Boll of
1707. which is so insenarablv connected with it — all in due

10 THE EAELDOM OF MAE. let. vii.
historical sequence, precisely as if I had paused to dilate upon
the subject in the preceding Letter, instead of merely alluding
to it in the course of my chronological narrative of the events
affecting the dignified fief of Mar between the year 1587 and
1635. We shall thus be prepared to deal effectively with the
particular criticisms tabled in the preceding analysis. I have
nothing to object to in the historical details given by my noble
antagonist, or by Lord Chelmsford and Lord Bedesdale in their
speeches to the Committee, except that they fall short of the
fulness and precision which the exigencies of the present
criticism require.
Fierce contentions having arisen between many of the
Scottish peers as to their precedency, and an Order of ParUa
ment in 1587, intended to allay them, having remained a dead
letter. King James vi. intervened by issuing a Boyal Com
mission under the Privy Seal for examining into and setthng
the disputed questions. The Privy Seal Eegister for the time
has been lost, but we know this fact from the recital in the
Decreet of Banking.
The Commissioners were selected, as the Decreet informs
us, as being the " most indifferent, and no wayes suspect of
partialitie ;" and their names have been recently discovered in
a contemporary notice in a ms. volume, containing the corre
spondence ofthe English and Scottish Commissions appointed
to organise the deportation or transportation of the Grahams
and other disorderly subjects living in the " debatable land "
to Plushing and Brill, after the accession of James vi. to the
crown of England, a correspondence which was in active pro^
secution in 1606. The ms. is preserved in my muniment-
room, having descended to me as heir of line and representative
of one of the English Commissioners for that service, my
mother's ancestor. The hand-^vi'iting is that of one of the
clerks, evidently a Scotchman, who transcribed part of the
correspondence. The list is headed by the words, " The names
of the Commissioners for Banking the Nobilitie, 1606;" and
the names of the Commissioners are followed by " the names
of the nobility rankit by Decreet, 1606." The Commissioners,
according to this testimony, were as foUows ; and I add a
word or two, illustrating their oflicial standing where neces
sary : —

SECT. II. THE EAELDOM OF MAE. 11
" John Erie of Montrose," — appointed Lord High Chancellor
15th January 1599, and held the office till succeeded by
Alexander Seton, Lord Fyvie, afterwards Earl of Dun
fermline, in 1604; when he was appointed " supremus
regni Scotiee procurator," or viceroy of Scotland, 1st
December 1604.
" Alexander Erie of Dunferling," or Dunfermline, — a Lord of
Session in 1587, as " Lord Urquhart ;" President of the
Court of Session, 28th May 1593; appointed Lord
ChanceUor in 1604, and held the office till his death in
1622 : created Lord Fyvie, 4th March 1597-8, and Earl
of Dunfermline, 4th March 1605-6.
"Francis Erie of Erroll," — Lord High Constable, on the
Commission ex officio.
" George Erie Marshall," — Marshal, or, Scottic^, Marischal, on
the Commission ex officio.
" John Archbishopp of Glasco."
" Alexander Lord Elfington," or Elphinstone, the same who
was defender against Lord Mar in the great process
decided in 1626.
" James Lord of Abercorn," afterwards the first Earl of that
designation, so created 10th July 1606.
" David Lord Skvyne," i-c. Scone, afterwards Viscount of
Stormont, and ancestor of Lord Mansfield.
"Sir Thomas Hamilton of Monkland," a Lord of Session,
9th November 1592; afterwards Lord President, and
the first Earl of Haddington (having taken that title in
lieu of Melrose), — a very learned lawyer and antiquary,
remembered, as I have already mentioned, as " Tam o'
the Cowgate."
"Sir John Cokburne of Ormistone," Lord of Session, 15th
February 1593.
" Sir Bichard Cokburne of Clarkington," Secretary of State
in 1591, and Lord of Session, llth November 1594.
" Sir John Preston of Fentonbarnes," Lord of Session, 1 2tb
March 1595, and Lord President ofthe Court, 6th June
1609.
" Sir John Skeyne (Skene) of Curryhill," the celebrated
editor of the Acts of Parliament, Eegiam Majestatem,
etc., — born about 1549, Lord of Session 30th November

12 THE EAELDOM OF MAE. let. vii.
1594, Clerk Eegister, i.e. Keeper of the Public Eecords,
the same year.
" Sir David Lindsay of the Month," i.e. of the Mount, the
Lord Lyon King of Arms, nephew of the poet, and Com
missioner ex officio : — the list ending "with
" James Prymroise," or Primrose, " clerk,"— the Lord Clerk
Eegister, and Secretary of the Privy CouncU.
The Commission thus included the late and the then Lord
ChanceUor, the Lord High Constable, and Earl Marischal, five
Lords of Session, the Keeper of the Public Eecords, the Lyon
King of Arms, an officer of especial importance as the guardian
of the rights of honour and precedency, — and no unimportant
personage with reference to the special question of the pre
cedency of the Earldom of Mar — Alexander Lord Elphinstone,
whose interest was most strongly engaged against any recog
nition of precedency in John Earl of Mar which could be held
to fortify his right to Kildrummie. It would have been
difficult to have named a body of commissioners more com
petent and indifferent, i.e. impartial.
The original commission under the Great Seal has not been
preserved, but its tenor and the powers of the Commissioners
are thus stated in the preamble to the Decreet of Banking
itself. They were commissioned to convene and caU before
them the whole noblemen of the kingdom, and, according to
their productions and verification of their antiquities, to set
down every man's rank and place. The Commissioners accord
ingly summoned the peers by name to appear before them, and
bring and produce " such wryts and evidents, documents and
testimonies as they have or can use for acclaiming of that rank
and place of precedencie and prioritie challengit be them before
uthers," to " be seen and considerit be the saids Lords Com
missioners, and to hear and see ' their ranks and places of
prioritie and precedencie appointit and sett down to thame
according to the antiquitie of thair productiouns, and that
quhilk should be verified in thair presence.'" It would
thus appear, I may interpose, that the award was to proceed
not only upon " antiquity " of " productions," i.e. of documentary
proof, but upon " testimony " upon " that quhUk should be veri
fied in their" (the Commissioners') "presence;" or upon references
" verified " of their " antiquities," a phrase including other and

SECT. 11. THE EARLDOM OF MAR. 13
all relevant evidence ; while a distinction is pointed at between
claims to "precedency" and to "priority," as if "priority"
depended on a different rule and proof from "precedency,"
precedency being awarded according to antiquity of evidence
in all cases, except where priority of place was proved through
the tenure of heritable office or special privilege. This remark
about the technical use of the word priority will be found to be
borne out by what foUowed. The ranking thus to be assigned
was to stand in full force and effect in each instance, " ay and
quhill " {i.e. continually until) " ane decreet before the ordinary
judge be recoverit and obtained in the contrair." The Decreet
of 1606 was thus in no case to be final in the first instance, but
open to reduction before the Court of Session by aggrieved
parties. Most of the peers attended, either personaUy or by
their procurators, the leading lawyers of the time ; and the result
was, that after the evidence produced had been " at diverse
dyets verie diligentlie and exactlie sichtit, tryed, examinat,
and considerit be the saids Lords Commissioners, and the saids
Lords being thairwith, as also with the ranks and places of
such erles and lords as were promoved and created in his
Majesteis own time, weill and throughlie advised," the Com
missioners issued their Decreet, dated the 5th March 1606,
fixing the order and precedence by enumeration of the entire
body of peers according to the rank, either through priority
or precedency, awarded to each of them. After this enumera
tion the salvo or proviso briefly noticed (as above) in the
preamble of the Decreet is more fully repeated as follows — and
this is most important as indicating the ultimate sanction of
the rankings awarded in the Decreet: — "But (without) pre
judice always to such person or persons " {i.e. not only peers,
but persons in expectancy, or claimants of peerages), " as shall
find themselves interest and prejudged be the present ranking,
to have recourse to the ordinar remeid of law be reduction
before the Lords of CouncU and Session of this present decreet,
for recovering of their own dew place and rank be productioun
of mair ancient and authentick rights nor" (than) "has been used
in the contrair of this process," — the remonstrant parties
" summoning thereto all such persons as they shaU think
wrangouslie rankit and placeit before them. And in this mean
time " — another position of vital importance in the interests of

14 THE EAELDOM OF MAE. let. vii.
peace, and binding at the present moment — "this present
decreet and determination to stand in full force, strength, and
effect ay and quhUl " (continually until) " the party interest and
prejudgit obtain lawfully a decreet before the Lords of Council
and Session, as said is."
The Decreet ends by an order that it shall be recorded in
the Books of the Privy Council, and that " an authentic extract "
(that is, an official copy) " be deliverit to the Clerk of Eegister,"
i-C- the Lord Clerk Eegister, or keeper of the public records,
" and another extract ... to the Lyoun Herauld," i-e. Sir Da-dd
Lindsay, one of the Commissioners, " to be keepit be thame "
(not personally but officially, i.e. in the pubUc record office and
Lyon office, and transmissibly to their successors in office) " for
their better knowledge and inforriiation of every man's rank and
place when the occasion of their ranking shaU be presented."
The Eegister of the Pri-vy Seal for the year 1606 is, as I have
stated, unfortunately lost, but the Decreet is fully known by an
" extract " under the hand of James Primrose, Clerk of the
Eegister, in his character of clerk to the Commissioner?, and
which is evidently one of the two ordered by the Decreet to
be engrossed. This extract is preserved in the Advocates'
Library, and was among the manuscripts of Sir James Balfour,
Lord Lyon King of Arms under James i. and Charles i., includ
ing many pertaining originally to the Lyon office, which Sir
James had removed to Fife for safety during the great rebeUion,
and which never left his custody and that of his representatives
till rescued, as in so many instances, for the nation by the
public spirit of the advocates of Scotland. Balfour was a sub
ordinate herald under Sir David Lindsay of the Mount in
theyear 1606; and the extract is evidently that deUvered to
Sir David under the order of the Decreet of Banking above
spoken of.
The documentary evidence upon which the assignment of
precedence proceeded is known by a schedule or inventory
a copy of which forms the first part of the " De Jure Prsela
tiouis Nobilium Scotiae," preserved among the manuscripts of
Sir James Balfour in the Advocates' Library.
B oth the extract of the Decreet and the schedule of evidence
have been repeatedly adduced, received, and dealt with as
evidence by the House of Lords.

SECT. II. THE EAELDOM OF MAE. 1.5
It is important to take notice that the Eoyal Commissioners
were not instructed or empowered to compel production of
evidence, far less to make a search through the charter-chests
of Scotland, — on the contrary, their office was Umited to the
reception and verification of such e'vidence as the peers them
selves might offer ; but this was supplemented (as is shown by
the schedule) in cases where the peers offered no evidence, and
in many cases where they did, by evidence " ex registro," i.e.
from the record of the Great Seal, evidently supplied by the
Clerk Eegister, who was in attendance with the books of his
office. It faUs to be remembered, that while the Commissioners
were thus at work, the Lords of Council and Session, the
Supreme Court of Scotland, were the supreme judges in all
cases of dignity, including precedency ; and nothing done by the
Commissioners in their lower sphere could derogate from the
supreme jurisdiction of the Court above them. It is impos
sible for words to express this more clearly than those of
the Decreet of Banking. The Decreet was therefore in many
respects, it cannot be too emphatically expressed, of an interim
or provisional character, but binding nevertheless on every peer
till such time as it should be reduced with respect to such peer
by legal process before the Court of Session ; while, after the
Court had pronounced its judgment in foro contradictorio,
although not till then, the ranking of the peer in question stood
not on the authority of the Decreet, as it were negative, but on
that of the Court of Session, positive. It is most important
that the value of the Decreet of Banking should neither be
unduly extolled nor unduly depreciated. It was, in fine,
neither in itself a final judgment nor a careless inquest, but a
careful award under the conditions and limitations prescribed.
An honest effort in a right direction, although upon imperfect
materials, it professed to do no more than it accompUshed.
The Decreet of Banking was anxiously appealed to James I.
when preparing for his visit to Scotland in 1617, and in prospect
of the meeting of Barliament, when he apprehended that the
dissatisfaction existing on the part of certain peers affected by
the Decreet might break out into violence in his presence. An
Act of the Privy Council, 12th June 1617, passed at his instance,
narrates the appointment of Commissioners in 1606: "to sett
doun the rankis of the haill nobilmen according to the verifica-

16 THE EAELDOM OF MAE. let. vii.
tioun of thair antiquities," which they settled by decreet, " after
lang panes and travellis tane be thame in that mater," and pro
ceeds thus—" His Majestie doubtis not, bot is assuirit that all
his nobillis who ar to be present at this Parliament will haif a
reverent and dewtifuU regaird to keepe that ordour and modestie
whilk becometh, and to content thame selffis with thair rankis
and placeis as thay ar sett doun in the said decreit : And whereas
ony of thame findis thame selffis greivit be thair ranking, that
thay 'will reserve thair gree-vis to ane vther tyme, and seeke the
reparatioun thairof according to the ordour prescryved in the
said decreit." The officers of the Crown are therefore ordered
to pass to the market-cross of Edinburgh, and make procla
mation accordingly.
The list or roll of peers, ranked according to their pre
cedency and priority, laid down by the Decreet, was adopted at
once as the roll of the peers in Parliament, convention, and aU
public meetings, and continued to be caUed uninterruptedly —
with such alterations upon it as judgments of the Court of
Session upon appeal in modification of the precedency of certain
peers rendered necessary, with the omission of such dignities as
became extinct, and with the addition from time to time of
newly created peerages — down to the last sitting of the Scottish
Parliament on the 1st May 1707.
It has to be noticed here that after the Act of 28th June
1617, introducing prescription upon heritable rights after a
period of forty years, it became necessary for such peers as held
themselves to be prejudiced by the precedency awarded them
in the Decreet of Banking eitlier_to prosecute those ranked above
them before the Court of Session, with the view of obtainins a
final decision, or to reserve their right by protestation on the
calling of their titles in Parliament. These protests, when
renewed at intervals sufficient to secm-e them from becoming
barred by prescription, preserved their right of prosecution
before the Court of Session, in terms of the Decreet of Banking
from generation to generation. The protests were " for remeid
of law" in the ordinary course, the ParUament having no
jurisdiction either in dignities or precedency ; and, on the con
trary, invariably, except on one occasion during the great
rebellion, refusing to interfere.
The manner in which the Decreet of Banking, corrected and

SECT. II. THE EAELDOM OF MAE. 17
supplemented as I have explained, became the " Union Boll "
was as foUows : — After the accompUshment of the union of the
two kingdoms, and in anticipation of the first election of
Eepresentative Peers for Scotland, the House of Lords, on the
22d December 1707, issued an order that the Lord Clerk
Eegister for Scotland " do forthwith lay before this House an
authentic list of the peerage of that part of Great Britain
caUed Scotland, as it stood on the first day of May last," the
last day of the sitting of our native Parliament. An " authen
tic list " was accordingly sent up ; and the roll of the estate
of the peers, as called on the 1st of May 1707, being, as has
been shown, the roll of the Decreet of Banking, corrected
and supplemented ut supra, and " attested by Sir James
Murray of Philiphaugh, one of the Senators of the College of
Jugtice," i.e. a Lord of Session, and " Clerk to Her Majesty's
Councils, Begisters, and Bolls," i.e. Lord Clerk Eegister. And
on the 12th February 1708, the House of Lords, after receiving
this " authentic list," ordered " That the List and Order of the
Peers of the North part of Great Britain caUed Scotland,
attested by the Clerk Eegister, be received and entered into
the BoU of Peers ; with the salvo following," — the bearing of
which will be clear from what I have stated above respecting
protests, — " That, whereas there are several protests entered
on the records of ParUament of . . Scotland in relation to the
precedency of the Peers, the said Protests shall be and are of
the same force with relation to their claims of precedency as
if they had been entered in the BoU of Peers, or in the Journal
of the House of Lords." The protests " for remeid of law " bj^
reduction of the Decreet of Banking before the Court of Session
were thus handed down from the Scottish Parliament to the
Parliament of the United Kingdom in its Upper Chamber, the
House of Lords ; and they have been in many cases kept alive
and available in legal form against prescription down to the
present time by reiteration at the election of Scottish Eepre
sentative Peers at Holyrood.
The effect of protestations in Parliament as legal interrup
tion of prescription of precedency was affirmed, I may here
interpone, by the Court of Session in the great process between
Sutherland and Crawford in 1706.
It is hardly necessary to repeat that the right of Scottish
VOL. u. B

18 THE EAELDOM OF MAR. let. vii.
Peers thus to protest and to prosecute their claims to preced
ency either under the reference in the Decreet of Banking or
under the powers conferred upon the Court of Session by
Statute, to which the proviso in the Decreet is wholly ancillary,
is protected under the general sanctions of the Treaty of
Union. The Boll of the Peers of Scotland — not made up by the
Lord Clerk Eegister or of a haphazard character, but as the
roll according to which the Peers sat at the last meeting of
the Scottish Parliament, and were marshalled as they rode in
the final ceremony through the streets of Edinburgh among a
sorrowing people — furnished as above, and officiaUy attested
by the Lord Clerk Eegister, and inscribed in the EoU of the
House of Peers of the United Kingdom — thus in every respect
a most authentic and interesting document — is what is popu
larly styled the Union Eoll, and it has even been spoken of as
an article of the Treaty of Union ; but this last quaUficatiou is
scarcely accurate. It stands liable to correction by the Court
of Session (where the right of appeal has not been forfeited
through prescription), under the guarantee of the Treaty of
Union, in virtue of the provision of the Treaty protective of
the private rights of Scottish subjects, peers or commoners, to
this extent, that the rights of dignity and precedency' on the
part of peers and their heirs, and the right of the Court of
Session to adjudicate upon such, are secured, beyond infringe
ment except through usurpation or revolution, by the solemn
terms of that international treaty. It is important, as in the
case of the Decreet of Banking, to take a just view, neither
exaggerated on the one hand nor depreciatory on the other, of
this much debated Union Boll. The Union EoU is, as I have
shown, the roll recited in the Decreet of Banking of 1606, with
the corrections made thereupon by the judgments of the Court
of Session, and the additions made to it in the case of peers
created between 1606 and 1707, both years inclusive, inserted
(perhaps) by order of the ParUament (under sanction of the
Lord Lyon King) before the Union, and of the House of Lords
since the Union ; but subject equally since as before, in all
cases of claimed or disputed rights affecting precedency, to the
paramount jurisdiction of the Court of Session.
I have to add to this historical review of the Decreet of

SECT. II. THE EAELDOM OF MAE. 19
Banking and the Union BoU, that the validity of the protests
referred to in the salvo or provision inserted in the Journal of
the House of Lords on the 12th February 1708, and the autho
rity of the Court of Session to adjudge upon processes preserved
by these Protests against prescription, were fully recognised by
the House of Lords as late as the epoch of the Sutherland claim
in 1771. Among these protests were those of the Earls of
Sutherland claiming precedency over all the Earls, and specially
over the Earls of Crawford. The Court of Session had deter
mined a tedious litigation by Sutherland against Crawford, by
an interlocutor, 23d January 1706, sustaining Crawford's pre
cedence, but not in such technical form as to establish a final
decision, or preclude the question from being re-opened. The
Earls of Sutherland nevertheless allowed the question to sleep
till 1745, when their representative instituted what is called a
process of " wakening " against Crawford, for the purpose of
obtaining a full and final decision, as he hoped, in his favour.
Thirty-nine years had elapsed between 1706 and 1745, and pre
scription would have supervened if forty years elapsed without
either a renewed protest, or an actual process initiated at law.
Sutherland adopted the latter alternative, and the Court, after
full argument, sustained the plea by a decreet of 18th Novem
ber 1746, and would have carried it to a final determination,
had not Sutherland, satisfied apparently with the manifestation,
abstained from further action. But in 1769, when the great
Sutherland case came before the House of Lords by reference
from the Crown, the House, in due observance of the salvo of
1708 and of the proceedings of 1746, and, necessarily, in recog
nition of the right of the Court of Session to adjudicate finally
upon the precedency under the reservation of the Decreet of
Banking, ordered that Crawford and Erroll (who had been a
party to the ancient litigation upon which the interlocutor
passed in 1706), should be summoned to be heard for their in
terests in opposition to the claims of the competing Sutherland
heirs, Elizabeth, the heir-general, and the heirs-male, Sutherland
of Forse and Sir Bobert Gordon ; and the two Earls appeared
by counsel accordingly, and were heard at the bar of the House,
although they took no further part in opposition to the respec
tive claims on their merits. It is clear from this action taken
by the House of Lords in 1769-71, that, whatever right the

20 THE EARLDOM OF MAR. let. vii.
House of Lords might assert to adjudge upon claims to Scot
tish dignities referred to them by the Crown, they still at that
time respected the rights of the subject and of the Court of
Session in cases of precedency under the Decreet of Banking,
as above vindicated ; as they had, in a stiU more important
matter, respected and recognised the right of the Court to judge
finally in the case of claims to dignities, in the instance of Lord
Lovat in 1730.
It is important, in the interests of the Scottish Peerage, and
of the Earldom of Mar in particular, that the weight and sanc
tion of the Decreet of Banking and of the Union EoU shall
neither be unduly exaggerated nor unjustly depreciated. The
facts above stated are matter of e-vidence and history, and form
necessarily the background of all discussion. It is e-ndent,
negatively, that nothing has taken place to release Scottish
Peers, whose creation dates before 1606, from the obUgation of
acquiescence in the precedence awarded by the Decreet of
Banking till they have obtained decreets in their favour from
the Court of Session, in the mode indicated by the Decreet, and
prescribed by that law of the land to which the Decreet pays
deference and gives expression. That, again, nothing has taken
place to deprive parties aggrieved by the Decreet of their right
to prosecute claims for higher precedency before the Court, or
parties of creation subsequent to 1606, who conceive them
selves wronged in their precedency, from prosecuting such
claims in virtue of that original and constitutional jurisdiction of
the Court which overshadows the whole question,— that nothing
has taken place to deprive the Court of Session of the right
and duty of adjudging in all the cases thus specified, and, con
versely, nothing to invest the House of Lords with authority
to usurp the functions of the Court of Session, supersede the
awards of the Decreet of Banking, or interfere with the Union
Eoll. But those negations are the mere vestibule to a positive
conclusion, which is, that the Decreet of Banking and the Union
BoU, which is fundamentally the Decreet, with the corrections
and additions aforesaid, stand upon sanctions antecedent to the
Treaty of Union, are protected under the general terms of the
Treaty, and are, as the expression and guarantee of private and
heritable rights, in the case of each individual dignity, un
alterable in any one point by King or Parliament, and a fortiori

sect. ii. THE EAELDOM OF MAE. 21
by one only of the two Houses of Parliament, and only open to
correction by the Court of Session in the proper form pre
scribed by the Decreet of Banking, and by the original consti
tution of the Court, subject only to the bar of prescription
where applicable.
I may add that I do not see how any dignity created pre
viously to 1606, but then dormant, and subsequently recognised
as existing, can be added to the Union Eoll, except under autho
rity of the Court of Session ; and if so added in the first in
stance, the place assigned to it would be equally liable to
chaUenge before the Court so long as prescription does not
impose the bar of immobility. Insertions upon the Eoll by
order of the House of Lords appear to me to be irregular, defi
cient in legal warrant under any circumstances, and they would
equally lie open to processes of reduction and declarator before
the Court in which the jurisdiction in dignities and precedency
is exclusively vested by Scottish law.
Section III.
General Oljections dealt with.
I proceed, upon the historical basis ascertained in the pre
ceding section, to the consideration of the general objections
tabled a few pages back.
(1.) I have first to meet the charge of " superficial inquiry "
against the Commissioners of 1606 and the Decreet of Banking.
Lord Kellie says: "The six months" — from October 1605 to
the 5th of March 1606 — " which were occupied by the Commis
sioners was a brief period for inquiry into the history of the
whole Peerages of Scotland, many of whicli were created at
early dates. Instead of only six months being besto'wed on an
inquiry into the creations of all the Peerages of Scotland, more
than that number ot years have sometimes been required to
investigate the descent of a single peerage. The mere superficial
inquiry by the Commissioners in the course of a few months in
the year 1606, regarding the whole Peerage of Scotland, cannot
for a moment be put in competition, in so far as the Mar peer
age is concerned, with the exhaustive inquiry which was made
during several years for the special ])urpose of adjudicating
upon the constitution and descent of that dignity."

22 THE EAELDOM OF MAE. -let. vii.
This criticism proceeds upon the hypothesis that the Com
missioners had larger powers, and were intrusted with more
arduous duties and responsibilities than has been shown to be
the case. Their duty was simply to examine and verify the
evidence, documentary and otherwise, adduced and pleaded by
the peers or their procurators in proof of their " precedency "
in point of date of creation, and " priority " in point of privi
lege, and to " rank " them accordingly. Each peer and procu
rator fought for the interest of the dignity which he represented,
intently watchful against any pretension which might infringe
upon the ranking of that dignity. In cases where peers did
not appear either themselves or by tbeir legal ad'visers, the
Commissioners had of course to determine according to such
information as was readily available ; and such was supplied
by the presence of the Lord Lyon King and the Clerk Eegister,
the former as a member of the Board, pecuUarly conversant
with the " antiquities " of the Scottish Peerage, genealogical
and heraldic ; the latter as the official secretary of the Com
mission, and the keeper of the pubUc records, especiaUy of the
Great Seal Eegister, which, as shown, was repeatedly con
sulted. But beyond this the Commissioners had no assistance,
and were not commissioned to ask for such. The object was
the settlement of quarrels and disputes by a practical ranking,
in the first instance, on the materials furnished by those in
terested ; scrutiny and inquiries of a more recondite character
being reserved for the Court of Session in cases where the
ranking awarded should give dissatisfaction — a reservation
and provision of which Lord Kellie takes no notice. The time
which elapsed between the issue of the commission and that
of the Decreet was amply sufficient for this simple purpose.
It is very remarkable that it was not tiU after the Bestora-
tion in 1660 that any process was commenced in the Court of
Session for the establishment of higher precedency on the
allegation of erroneous ranking upon documents produced in
1606. The two processes which preceded the Eestoration,
those of Buchan in 1628, and of Glencairn contra EgUnton
and others in 1610, 1617, and 1637-48, both proceeded on the
ground that neither the infant heiress of Buchan, as repre
sented by her guardian, or the then Earl of Glencairn, had
appeared in behalf of their respective interests in 1606, the

SECT. III. THE EAELDOM OF MAE. 23
blame of inaccuracy thus attaching to themselves, and not to
the Commissioners. The Decreet, as matter of fact, met with
general acquiescence and respect at the time.
The result is, that Lord Kellie's charge of " mere superficial
inquiry," in the derogatory sense, is disposed of as inapplicable,
by the proof given that the inquiry was never intended to be
anything but superficial in the first instance.
(2.) It foUows, upon this ascertainment of the extent of power
and scope of action of the Commissioners in 1606, that the
objection grounded on the allegation that " the Commissioners
had no means of knowing in any case whether evidence was
withheld from them which would affect the order of precedence
founded upon the proofs before them," cannot be counted to
the discredit of the Decreet. The objection is Lord Chelms
ford's, and his words are as follow : — " Under this Commission
each nobleman, in order to establish his precedence, offered to
the Commissioners such evidence of his title as he chose, their
power being necessarily limited to the verification of the docu
ments produced, and to forming their judgment upon them,
and having no means of knowing whether anything was with
held from them which would affect the order of precedence
founded upon the proof presented. Therefore," Lord Chelmsford
inferred, " their decision can carry no weight on the investi
gation of a claim to a title which depends upon facts not laid
before them."
Without remarking upon the inference thus suggested, that
facts were withheld from the Commissioners in each case, in
cluding the Mar case — which will be dealt with under the
head of Special Objections — my answer is to the general pur
port, that Lord Chelmsford's present objection to tbe Decreet
proceeds, like Lord Kellie's preceding objection, on a misappre
hension of the power and functions of the Commissioners.
Had the Decreet in contemplation been a final, and not (as it
really was) a provisional and interim judgment, the power of
enforcing the production of evidence vested in the Court of
Session might have been extended to the Commissioners,
although even then appeal must have lain to the Court ; but,
as the Commission ran, the appeal in every questionable case
was direct to the Court, and the Court not only possessed but
exercised the power in question of exacting the production of

24 THE EAELDOM OF MAE. let. vn.
evidence when necessary. The manner in which Lord Chelms
ford introduces the hypothesis of wilful fraud on the part of
the peers summoned before the Commissioners, as a ground
for doubt as to their competency to decide on matters sub
mitted to their decision, cannot escape attack. The objection
is general, a generalisation from a supposed detection of such
fraud on the part of Lord Mar, openly asserted by Lord Bedes
dale and in Lord Kellie's case, although not so prominently put
forward by the present Lord Kellie in his Letter as by Lord
Chelmsford. Such an inference and argument would discredit
any cause. No Court or Commission in Christendom can
prevent the fraudulent withholding of evidence the exist
ence of which is not known, although it can punish the
suppression if the crime be discovered. I may observe, how
ever, in anticipation of the fuUer development of the suspicion
above suggested, that it is not easily understood in England
how completely the peers and great barons of Scotland, few
comparatively in number, lived practicaUy in glass houses
— every action, even when of questionable character, attended
by legal testimony ; every concession, for example, to the
hand of violence, attended by its protest, pubUc or private,
in the hands of a notary, generally one commissioned with
authority under the Emperor and the Pope, for remeid of
law at fitting time and place — all such instruments being
carefully preserved — while rights proceeding from the Crown
were recorded, as a rule, in public registers in the custody
of public officers familiar with their contents — registers which
furnished the means of testifying to such rights in the
numerous cases where private castles or residences were
burned with charter-chests and their contents, as was so fre
quently the case in the wars between the great feudal fami
lies. It would, in short, have been very difficult for any peer
in 1606 to withhold such evidence as Lord Chelmsford speaks
of The inter-relations of feudal life, descending link by link
from the Crown to the humblest sub-vassal — every act per
formed in public, with attendant ceremonies and usually weU-
written instruments of certification, even the investiture of a
parish-clerk in his office being thus recorded — were utterly
inconsistent with the possibility of concealment; while the
fact that the highest nobles usually acted in all affairs of

sect. III. THE EAELDOM OF MAE. 2.5
consequence with the assistance of their " concilia " or petty
parliaments, equally extended the sphere of publicity within
which they walked, for good or for bad, in the sight of their
brethren. (3.) The third and final charge against the Decreet of Bank
ing and the Union Eoll, from a general point of view, as
imperfect and inaccurate, and thus unsusceptible of being
founded on in argument in any case (and specially in that of
Mar), is based by Lord Kellie : — 1. Upon an alleged discovery to
that effect by the House of Lords between 1708 and 1739, which
occasioned the supersession of the Boll, or at least the aggrega
tion to it of an amended roll in 1740 and 1847, the latter
drawn up by the Lord Clerk Eegister in obedience to an order
of the House of Lords, and which is stiU the regulating roll
caUed at the elections' at Holyrood ; 2. Upon dicta of noble
and learned Lords in Committee for Privileges in depreciation of
the Decreet of Banking, and upon the authority of Mr. Eiddell
to the same effect ; and 3. Upon the liability of the Decreet of
Banking to be reduced by any peer having an interest, and the
fact that it was thus reduced in consequence of inaccm-acy in
instances specified, — thus practicaUy illustrating the super-,
ficiality of the inquiry of 1606.
My answer to these articles of challenge cannot be given in as
few words as those in Lord Kellie's Letter of courteous defiance.
1. If the reader will refer back to Lord KelUe's Letter he
will perceive that the statement on the first of these points is
that —
"Between the years 1708 aud 1739 the imperfections of the
Union Eoll appear to have been discovered by the House of Lords,
who took steps for obtaining a more accurate list of peers, by issuing
an order on the 12th of June 1739, that the Lords of Session should
make up a roll of the Peers of Scotland at the time of the Union
whose peerages were still subsisting. The Lords of Session made their
return in the following year. They reported that, — ' After the most
careful search and examination, they have not hitherto found among
the records any roll or list of the Peers of Scotland at the time of the
Union, authenticated by the subscription of the Lord Eegister, or by
any other person or officer whatsoever. All they have been able to
meet with to give satisfaction in this particular, is an unsigned writing
on a sheet of paper, entitled " Boll of Parliament 1706," bearing a list
of tJie Peers according to their ranks.' "

26 THE EARLDOM OF MAE. let. vii.
This account by Lord KeUie of what took place in 1739
and 1 740 is too meagre to be intelligible, and leaves an erro
neous impression, the natural consequence of its conciseness.
The "imperfections" of the Union Eoll alleged by Lord
Kellie, as discovered by the House of Lords between 1708 and
1739, can ouly refer to the fact that many peerages had become
dormant or extinct during that interval, while some had been
assumed by persons whose claims were very distant and dubious
— this, however, being to their discredit, not that of the EoU.
There was no question of erroneous ranking as regarded pre
cedency — these were two very different matters which ought
not to be confounded together. The expression, " a more accu
rate list of Peers," can only refer to the peers themselves, not
to any inaccuracy in the Boll itself; while, if any inconve
nience existed, it was on the score of superfluity, the effect of
time having eliminated certain entries, not of original " imper
fection." Proceeding to the substance of Lord KeUie's state
ment, I have to observe that it suggests that the EoU now in
use is no longer the Eoll of 1707, which has been superseded
through imperfection and inaccuracy, and that this supersession
has been effected by lawful authority. The difficulty found by
the Lords of Session in 1740 with regard to the Boll of Peers
existing at the time of the Union, merely shows the extraordi
nary ignorance that existed on the question at that time in
Scotland. The sheet of paper entitled "Eoll of ParUament
1706, being a list of the Peers according to their ranks," being
unauthenticated by the Lord Clerk Eegister or by any official
authority, was utterly worthless ; and the clerks of the House
of Lords must have smiled on perusing this passage of this
Eeport when they had the entry before their eyes on the
Journals of the House of the certified list, duly sent by the
Lord Clerk Eegister, of the Peers of Scotland as they stood on
the Bolls of the Scottish Parliament on the 1st day of May
1707 — in other words, the Union EoU. The Lords of Session
in 1740 — or rather the eminent man who drew up the Eeport
which they adopted, and which was forwarded to the House —
cannot have been aware of this transmission and entry. It
might be thought from Lord Kellie's words, apart from this
explanation, that the Union Eoll depended on no higher autho
rity than a similar piece of unauthenticated waste paper. The

SECT. in. THE EAELDOM OF MAE. 27
Eeport of the Lords of Session in 1740 constituted a sort of
commentary on this Eoll of 1706, this sheet of paper, thus
fortuitously preserved in Edinburgh, doubtless accurate for
practical purposes, distinguished by the peerages which had
descended continuously without break to their actual tenants ;
then those of which the continuity had been broken; and
upon those peerages this Eeport makes many valuable remarks.
But neither the application of the House of Lords nor the
Eeport of the Court of Session had anything to do with the
accuracy of the Decreet of Banking or of the Union Boll in
respect to the precedency of peers, or the right of the peers
whose precedency was thereby determined to be on the Eoll.
I may add that the Eeport was drawn up exclusively by
Duncan Forbes of CuUoden, the Lord President of the Court
of Session, a man of the highest ability and integrity, but
better acquainted with constitutional law than with matters
of genealogy; while the facts that the researches which
he undertook with conscientious care, and which actually dealt
with " all the Peerages of Scotland," were confined within
the space of eight months ; that he had no power to call
for evidence, but drew up the report from his own knowledge,
practicaUy single-handed, and during the intervals of official
work; and that his colleagues of the Session in whose joint
names the Eeport was sent had nothing to do with it except
adoption, signature, and transmission to England, while the
Eeport possesses no judicial character — these facts place the
Eeport of 1740, mutatis mutandis, far below the level of the
Decreet of Banking in point of weight and authority.
Lord Kellie continues his narrative upon this head as
follows : — " The lists or notes which were furnished by the
Lord Clerk Eegister to the House of Lords in 1708, and by the
Lords of Session in 1740" — the latter being the unsigned list
thus above spoken of, with the comments in the Eeport signed
by Lord President Forbes, " continued to be the roUs of the
Scotch Peers till the year 1847, when, under a special Act of
Parliament for correcting abuses at the election of Scotch Peers
owing to the imperfection of that BoU, the present one was
made up by the then Lord Clerk Eegister; and it is stUl the
regulating roll called at the election of Peers, with such addi
tions and corrections as have been made by order of the House

28 THE EAELDOM OF MAE. let. vn.
of Lords." There is scarcely a clause here which does not
convey an impression the reverse of what a few words wiU show
to be the truth.
In the first place, the Union Boll and the Usts sent up in
1740 never enjoyed this co-ordinate authority as "the rolls of
the Scotch peers" up to the date of 1847 specified. They
were fundamentally identical, but only the Union EoU was of
authority. The " special Act " referred to by Lord KeUie as
passed in 1847 for correcting "abuses" at elections "owing to
the imperfections of the Boll," was for the purpose of prevent
ing persons claiming to vote in right of peerages existing on the
Boll being permitted to do so before establishing their right
thereto — a laudable object, although the means de'^dsed to
attain it and prescribed by the Act were ultra vires of the
Legislature, as I shall show in due time. But these " abuses "
were owing to no " imperfections " in the Eoll, i.e. the Union
BoU, but rather to its redundance, as I have already observed,
the existence upon its face of dignities which became either
dormant or extinct in the interval, the question being that of
the continued existence, not of the relative precedency, of the
dignities. The roll " made up " by the Lord Clerk Eegister
in 1847 was not the result of a revision or readjustment of
materials, much less an elimination or correction of such by the
aid of a discriminating and quasi-judicial process, but simply
a shorter roll abridged from the Union Boll, by omission of
peerages upon which uo vote had been tendered for fifty years,
for the purpose of preventing any vote being tendered there
upon without proper authority from the House of Lords —
but observing the same precedency. It was pm-ely for con
venience by a questionable stretch of power on the part of
the House of Lords, and calculated to exert a prejudicial effect,
which has been already apparent. The House possessed
no power to supersede or curtail the original and standing
EoU in its integrity; and no peer of Scotland can for one
moment be called to look upon this truncated list as of
authority, or binding upon his recognition as respects the
" additions " or " corrections " spoken of, as " made by order
of the House of Lords." I say aU this in vindication of the
standing authority of the Union Boll as distinguished from
the substitutes, which may shine brightly as kings in Lord

SECT. HI. THE EAELDOM OF MAE. 29
KeUie's eyes, but are mere farthing rushlights in themselves,
when the Boll itself — the " rex rotulorum " — is appealed to.
Meanwhile, of the " additions " and " corrections " referred to,
the " additions " consisted merely of peerages supposed to have
been dormant or extinct, but which had been recognised as
existent and inserted on the roll by order of the House of Lords,
after the Crown had judged favourably of the reports of the
House upon claims to those peerages between 1707 and 1847 ;
but these " additions " implied no " imperfections " in the Boll
in the sense of that fundamental inaccuracy which gives
point to Lord KeUie's objection. But with regard to " correc
tions " on the Eoll by authority of the House, otherwise at
least than as the abridgment of the Eoll in the manner above
stated in 1847 can be described as correction, I am aware of
none, unless it be in regard to peerages forfeited in 1715 and
1745 and subsequently restored; and no "order" of the House
of Lords would at any time warrant " correction " upon the Eoll
in alteration of the precedence determined by the Decreet of
Banking, and the judgments of the Court of Session, constitut
ing collectively the Union Boll.
These expositions will, I trust, supply a response to Lord
Kellie's concluding assumption on the above score, viz., that
" the unsatisfactory and imperfect nature of the Decreet of
Banking in 1606, and the subsequent roll of peers from that
date to the Union, and from 1740 to 1847, will be apparent
from the history now given."
2. I proceed to Lord KeUie's second basis for the present
objection as given in his Letter : — " The errors in the Decreet
of Banking have frequently been remarked upon in the trial
of Scotch peerage cases. It was much founded on by one of
the claimants in the Herries case, which was decided by the
House of Lords in 1858. In moving judgment, one of the law
Lords" (Lord Cranworth) "referring to it said, 'It cannot by
any means be taken as conclusively establishing the relative
rank of the different peers.' And another of the Lords" (Lord
Bedesdale, who dissented from the Besolution arrived at)
" said — ' The incorrectness of this Decreet is so clearly proved,
that no reliance can be placed upon it unless otherwise sup
ported. It is disputed constantly at the election of Scotch
Peers to this day. It was made up in some cases from evidence

30 THE EAELDOM OF MAE. let. vii.
produced by the peers themselves, several of whom did not
appear before the Commission.' The Decreet," Lord KelUe
adds, " was also founded upon by Mr. Goodeve Erskine in the
claim to the Mar Peerage in the House of Lords. It was very
fully discussed at the hearing of the case, and very little
attention was paid to it, owing to what Mr. Eiddell calls its
gross errors and glaring inconsistencies " — a reference which I
shall take up in due time. " It is absurd now to attempt to
uphold such an imperfect document, as if it were equal to a final
and irreversible judgment on each particular case of peerage
mentioned in the Decreet," — a view of it which is contradicted
by its very terms, by the reference which it contains to the
Court of Session, and which neither I nor any other Scottish
antiquary or advocate has ever, I beUeve, set forth.
Lord Kellie attaches more weight to the dicta of the law
Lords quoted by him in depreciation of the Decreet of Banking
than I can recognise, holding, as I do, that such dicta are
valuable more or less in proportion to the competency of the
individual spokesman to advise upon matters of Scottish law ;
while it is now admitted, even by the House of Lords (although
not apparently by Lord Kellie), that the opinions of noble and
learned Lords in Committees of PrivUege are not judgments,
but the mere expression of the rationes on which they sup
ported the Eesolutions arrived at by the House. But if the
" little attention," in the sense of disrespect, which he attributes
to the view taken of the Decreet by Lord Chelmsford, Lord
Bedesdale, and Lord Cairns in 1875, be an argument against
me, I can furnish him with a stronger instance from the
history of the Montrose claim in 1853. That claim turned
in one aspect in an appreciable degree upon the continued
existence of the Earldom of Glencairn since its creation in
1488, and upon a series of decreets by the Court of Session pro
ceeding upon an original inaccuracy in the Decreet of Banking
of 1606, which the Court was called upon to redress, and did
rectify. So little attention was paid to the Decreet of Banking
by the noble and learned Lords who addressed the Committee
on that occasion, that Lord Chancellor Cranworth commenced
his observation on the subject by the words, "A Decreet of
Banking, as it is called, was made — I believe by the Parlia
ment'' (!), " by which they classed the peers according to their

SECT. ill. THE EAELDOM OF MAE. 31
order," whUe Lord St. Leonards, although he dealt in a way
which I shaU exhibit with the decreet of the Court of Session
in favour of Glencairn in reversal of the ranking of 1606,
absolutely omits all mention of the latter — the foundation of
the whole superstructure. If such be the authorities mar
shalled against the Decreet of Banking and the Union Eoll,
Lord KeUie, who attaches such importance to Lord Mansfield's
ruling on the subject of heirs-male, might have noticed the
respect with which that great, although not always infallible,
authority regarded the Decreet in his speech upon the Suther
land claim — deriving from the Sutherland precedency, as there
settled in relation to other dignities, a special argument in
favour of the heir-general, which I shall presently show in
answer to the challenge both of Lord Kellie and of Lord Bedes
dale, to be equaUy applicable in favour of the heir-general of
Mar, as derived from the precedency awarded to that Earldom
in that much-controverted Decreet.
Bespecting Mr. Eiddell's censures on the Decreet of Banking,
as cited in Lord KeUie's Letter, to which I refer the reader —
although the words just used, " its gross errors and glaring in
accuracies," do not appear in the passage — Lord Kellie citing
it with express notice that I have styled Mr. Eiddell my
" friend and father in genealogy and peerage law " — I have this
to say : — Apart from the remembrance of personal friendship,
I speak always with the respect which is due to Mr. Eiddell,
who did more than any one man since Lord Hailes to vindicate
the ascendency of the judgment of the Court of Session in all
matters affecting dignities, and the genuine law of Scotland,
especiaUy in the matter of succession, as against the revolu
tionary innovations, the modern doctrines of the House of
Lords, derived by tradition from Lord Mansfield, Lord Camden,
and Lord Loughborough. But when I find law and authorit}'
opposed, I own no deference but to law. If the preceding
exposition be correct, the Decreet and the Union EoU are
entitled to more respect than Mr. Eiddell's words would sanc
tion. But Mr. Eiddell's work, quoted by Lord Kellie, was
published, as he himself states, in 1842, and he modified his
views, as I well know, in some important respects as to the
"Decreet of Banking," in consequence of the investigations made
before, during, and after the Montrose claim ; and most certainly

32 THE EAELDOM OF MAR. let. vii.
he never for one moment doubted that the Decreet was accu
rate with respect to Mar, as between the ranking assigned to it
from 1404 and any former date— his sole complaint being, as
expressed in the very work Lord Kellie cites from, that the
Earldom was not ranked as first among all the Earldoms of
Scotland. In that same work, Mr. BiddeU vindicates the
principles upon which precedency was allotted by the Commis
sioners in more than one respect where they are impugned by
Lord KeUie, as we shall see in the ensuing section of this
Letter. 3. It remains for me to deal with the third basis of Lord
KeUie's general objection now before us, 'viz., that the preced
ency awarded by the Decreet of Banking have been found to
be erroneous in certain instances, and that the Decreet is thus
discredited. Lord Kellie's words are, — " It (the Decreet) was
liable to reduction at the instance of any peer ha'ving an
interest, and it was reduced by the Court of Session at the
instance of the Earl and Countess of Buchan, and more than
once altered in the case of Glencairn," — words which those
conversant with the facts may accept as accurate, but which
to those not conversant with the facts cannot but have the
practical effect, uttered as they are and taken 'with the context
of Lord Kellie's remarks, of suggesting error (from whatever
cause) on the part of the Commissioners, vacillation of opinion
and contradictory judgments (as implied by the phrase "more
than once ") on the part of the Court of Session, and a general
taint of inaccuracy and untrustworthiness characterising the
entire series of inquiries, and reflecting on the Union BoU as
their ultimate outcome and expression. It is e^^.dent that
these suggestions, if well founded, would establish a serious
case of discredit against the value of the Decreet, even as cor
rected by the Court of Session, in all other cases, and specially
in the issue to that of Mar. Lord Kellie points his conclusion,
connecting the present general objection with the special ones
that follow, in the following concatenation of impeachment : —
" The mere superficial inquiry by the Commissioners in the
course of a few months in the year 1606, regarding the whole
peerage of Scotland, cannot be put in competition, in so far as
tbe Mar Peerage is concerned, with the exhaustive inquiry which
\\'as made during si'\'oral yca,rs for the purpose of adjudicating

SECT. III. THE EAELDOM OF MAE. 33
on the constitution and descent of that dignity," — an inquiry, I
may observe, not so exhaustive as to ascertain the fact that the
entire question had been already discussed and determined in
favour of the heirs-general during the period between 1565
and 1626, and notably recognised by the Commissioners of
1606, by the Kings and Parliaments of Scotland, and by every
subsequent intervention of authority down to the commence
ment of the inquiry wound up in 1875.
It will be manifest on the slightest reflection that the pre
sent objection proceeds on the attribution to the Decreet of
1606 of a finaUty which was not contemplated by the consti
tution of the Commission which pronounced it, and which that
Decreet itself repudiates. The objection presumes that the
corrections made by the Court of Session discredited the
Decreet, whereas they were merely supplementary to it, in the
development of the provision for securing ultimate accuracy,
which is the leading and characteristic merit of the Decreet
itself, — the objection still further overlooking the correlative
provision that when the precedencies awarded were not chal
lenged, they must stand tUl they have been reduced. It
equaUy overlooks the fact that whUe the corrections in the
cases of Buchan and Glencairn, involving change in the relative
precedency of many other peers, were simply the complement
and completion of the Decreet in its character of the EoU of
the Peers in ParUament, the inabiUty of any interested party
to estabUsh a case of misranking against the Earldom of Mar
as the ancient dignity ranking from 1404 stamps the ranking
of the Earldom in the Decreet with correctness, while the
operation of the Act of prescription in 1617 fixed that correct
ness indelibly beyond the reach of cavil or contest when once
the period of forty years had elapsed, as it did elapse in the
case of Mar without any process, or even protest, against his
precedency. And, lastly, the objection overlooks the fact that,
while no one ever ventured to impugn the Mar precedency,
the contention was all the other way, as I shall show in the
ensuing Letter ,^hat is to say, on the part of Mar for higher
precedency that had been awarded to him, for the first place
among the Earls of Scotland.
It is impossible for an adequate answer to be given to the
present objection without a clear exposition of the cases of
VOL. II. c

34 THE EAELDOM OF MAE. let. vii.
Buchan and Glencairn adduced by Lord KeUie ; especiaUy as
regards the alterations which he states were more than once
made upon the Decreet in the case of the latter dignity. These
two cases are full of interest and instruction. They will also
contribute to the exhibition of the true value to be adjudged
to the dicta of noble and learned Lords in Committees for
Privileges in disprezzo of the Decreet of Banking and the
Union Boll.
The correction of the precedency assigned to the Earldom
of Buchan in the Decreet of Banking took place in 1628, as the
result of an action of reduction and declarator before the Court
of Session, at the instance of Mary Countess of Buchan in her
own right, and James Earl of Buchan, her husband, who bore
that title by the well-known courtesy of Scotland. I may
pause for a moment to remark that the Countess Mary was
daughter of another countess in her o'wn right, Christiana Coun
tess of Buchan ; and that both mother and daughter inherited
under a royal charter and regrant of the lands of the Comitatus
or Earldom in favour of Mary's grandfather, John, thUd Earl of
Buchan, on his resignation, 4th August 1547, that charter con
taining no specification of the dignity, and substituting the
limitation " hseredibus suis," including heirs-female, for a pre
vious, limitation to heirs-male. The reader 'will observe the
parallelism here — between Mary and Christiana Countesses of
Buchan and Isabel and Margaret Countesses of Mar, and
between the two charters of the respective fiefs, 'without any
specification of the dignity, and with the Umitation " hseredibus
suis," under which the Countesses Christiana and Mary in the
case of Buchan, and Earl Eobert in the first instance and Earl
John in the second in that of Mar, succeeded to the respective
dignities — these charters being the charter of 1547 in the case
of Buchan, and the charters of 9th December 1404, 21st Janu
ary 1404-5, and 23d June 1565, in the case of Mar — as recog
nised in the Act of Parliament 29th July 1587, and in the
judgment of the Court of Session in 1626. Lord Mar's oppon
ents cannot take a step in derogation of his rights without
evoking witnesses from the very earth they tread on to testify
to those rights, and to denounce as accusing genii the injustice
of their opposition.
The action brought by the Countess Mary was against

SECT. ill. THE EAELDOM OF MAE. 35
the Earls of Eglinton, Montrose, Cassillis, Caithness, and Glen
cairn, as unduly ranked to her prejudice. The Countess,
being a minor in 1606, did not appear, and her guardian
would appear to have neglected that duty: and the ranking
was thus too low, dating in fact apparently from the charter of
1547, which the Commissioners probably knew of through the
Lord Clerk Eegister, and not from the original charter of creation
in 1469. No opposition was offered by the defenders to what
e-vidently was considered a just claim ; and the Decreet of
Banking was reduced accordingly in the Countess's favour by
a decreet of the Court of Session, 5th July 1628, to the effect
of displacing the five earls above mentioned to the extent of
placing Buchan above them.
But while Lord KelUe's allusion to the case of Buchan
might have been passed over briefly but for this interesting and
unsuspected iUustration of the argument for the heir-general
of Mar, I lay my finger on his reference to the reduction of the
Decreet of Banking " more than once " in the matter of the
Glencairn precedency, as calculated to create prejudice on the
grounds above stated ; while, in actual fact, the circumstances
afford, far beyond the case of Buchan, the most striking illus
tration of the intervention of the Court of Session in rectifica
tion of the shortcomings, not of the Commissioners of 1606^
but of the peers who were summoned to produce their evidence,
but failed to do so, and of the respect and deference with
which that intervention was recognised by the legislature, aUke
on constitutional grounds and as binding per se on ParUament.
The facts are simply as follows : —
The Earldom of Glencairn was created by James ill., by
patent, or more correctly speaking, by charter, in favour of
Alexander Lord Kilmaurs with limitation "haeredibus suis,"
on the 28th May 1488, at the culminating point of a great
rebeUion headed by his son, James iv., who succeeded as such
on the death of his father at the battle of Sauchieburn on the
llth June, but a few days after the grant of the earldom.
The battle was succeeded by a proclamation, of which nothing
is known, and by an Act of Parliament passed in the succeed
ing Parliament, 17th October 1488, usuaUy styled of late years
the Act Bescissory, rescinding in general terms " aU alien-
acions of landis, heritage, langtakkis, feufermez, offices, taUzies,

36 THE EAELDOM OF MAE. let. vii.
blanche ferm, creacion of new dignities " granted by the late
king during the preceding eight months— with respect to -which
I may mention that the clause " creation of new dignities "
related exclusively to grants of regality or royal jurisdictions,
as I have recently ascertained. The Act took no effect on any
one of King James's grants, and most certainly not on the
charter of the Earldom of Glencairn. Earl Alexander, the
grantee, was kiUed at Sauchieburn, and his son and grandson
abstained from assuming the dignity, out of motives of prudence,
for some years : but the latter was ultimately recognised as
Earl of Glencairn in 1503. The charter or patent of 1488 is,
by a ruling final decreet of the Court of Session, 19th January
1648, now to be noticed, the only constitution of the Earldom,
vaUd and standing notwithstanding the Act Bescissory, every
attempt to prove a subsequent grant having proved ineffective,
and the suggestion of a lost patent having been rejected.
Earl Alexander's descendant, James Earl of Glencairn,
"did not compear" before the Commissioners in 1606. The
Glencairn charter had not been recorded in the Great Seal
Eegister (by no means an infrequent occurrence), and the
original had been mislaid when the Decreet of Banking passed.
The Commissioners accordingly gave him precedence accord
ing to the earliest evidence of the existing Earldom that came
to hand, to the effect of postponing him to the Earls of
EgUnton, Montrose, Cassillis, and Caithness, all of whom pro
duced evidence of earlier date, although, if the charter of 1488
liad been produced, it would have placed him above them aU.
The missing charter in question was discovered in 1609; and
in that year the Earl of Glencairn brought an action of reduc
tion and declarator before the Court of Session in accordance
with the provisions of the Decreet of Banking, summoning
Eglinton and Cassillis, but overlooking IMontrose and Caithness ;
upon which summons and production of the charter, decreet
foUowed on the 7th July 1610 in Glencairn's favour, no opposi
tion being offered. But, as the decreet was in absence of the
two Earls, defenders, and Montrose aud Caithness had not been
summoned, as they ought to have been, and the effect of the
decreet of 1610 was to create confusion in the ranking in con
sequence of this omission, the judgment was not final. EgUn
ton accordingly in 1617 brought an action of reduction of the

SECT. III. THE EAELDOM OF MAE. 37
decreet of 1610, on the ground just specified exclusively; and,
the informality being proved, a decreet was passed in Eglin
ton's favour, reversing the decreet of 1610, and by which
matters were replaced in their original state, precisely as if
nothing had intervened between 1606 and 1617. Glencairn
held thus a subordinate precedence, in consequence of the
decreet of 1617, at the time of the Countess of Buchan's pro
cess of 1628 above spoken of. But Glencairn returned to the
charge in 1637, by a formal summons, embracing all the four
Earls ranked before him in the Decreet of 1606; and after
several years' litigation, and the parties meeting in foro con-
tentioso, and with the assistance respectively of the ablest
advocates in Scotland, the Court of Session issued a final judg
ment on the 19th January 1648, sustaining the validity of the
charter of 1488 against the Act Bescissory, and reversing the
Decreet of Banking to the extent of assigning the precedency to
Glencairn on the exclusive ground ofthe vaUdity of that charter.
It may be noticed here, as an interlude during a luU in the
process, that Glencairn, from whatever cause and under evU
advice, attempted by a supplication to the Estates of Parlia
ment in 1641, to induce them to take up his cause and decide
it on their own authority. But the ParUament refused to do
so, passing a "deliverance" or order 15th June 1641, to the
effect that Glencairn's " sitting and voyting in Parliament at
this time shall nowayis be prejudiciaU to him in the right of
his place whensoever he shall intend persute for the same
befoir any judge competent ; and siclyke that this answer or
reference shaU not in any sort prejudge those other noblemen
or any of them in thair richtis or possessioun, and just defences
of the same, as accordis of the law;" thus referring aU the
parties to the only competent tribunal, the Court of Session.
But a change had passed over the spirit of ParUament
between 1641 and 1649, the year after the death of Charles i.
The circumstances under which the charter of the Earldom of
Glencairn had been granted by James III. to Alexander Lord
Kilmaurs in 1488 were exactly parallel with those under which
the patent of the Marquesate of Montrose had been bestowed
on the Ulustrious Earl of that name by Charles I. in 1644 — in
each case as the reward of loyalty against treason. Eglinton
urged this paraUel through his friends on the men in power ;

38 THE EAELDOM OF MAE. let. vii.
and the ParUament, then in rebeUion, took up the matter
(although constitutionally incompetent so to do), and by two
decreets of the 2d and 9th March 1649, the first at the instance
of the public prosecutor, the second at that of Eglinton,' annulled
the charter of the Earldom 28th May 1488, and rescinded the
decreet of the Court of Session, 19th January 1648, on the
avowed ground, as stated in the first of the two decreets, " that
it is of dangerous consequence and example in relation to the
troubles of this kingdom occasioned by evil counsel given to
the King's Majesty" (Charles L), "and assistance thereto,
that the said gift and patent " of the Earldom of Glencairn,
" graunted for evil counsall and assistance given to the Eng"
(James iii.) " should be of any force or validity, or should be
'made use of," — in consequence of which the Estates proceeded
to ordain that, " if William Earl of Glencairne, or any other
his airis or successoris, shall at any tyme heirafter mak use of
the forsaid pretendit principall patent in judgement or outwith
the samene any manner of way, the said Earle of Glencairne and
his aires and assignayes forsaidis, makers 'use of the foirsaid
pretendit principall patent, are and shaU be incapable of the
dignity of Earl thairin specifeit, and shall not brook nor enjoy
the dignity and title of Earle by vertue of anie other right at no
tyme heereafter." The effect of the second decreet of 9th
March 1649 was to replace Eglinton and the other three Earls
(excluding Montrose, under the designation of " James Graham,"
as they had forfeited him) in the precedency. But, in the first
place, not only had Parliament no jurisdiction in the matter,
the jurisdiction being exclusively in the Court of Session, so
that their action was ultra vires, and their two decreets null
and void as proceeding a non liabente potcstatem under any
circumstances ; but, further, the entire Acts of the Parliament
in question, including the two decreets, were formally rescinded
by Act of Parliament after the Eestoration, restoring the
decreet of the Court of Session in favour of Glencairn, 19th
January 1648, to its full validity and universal recognition.
On one occasion only afterwards were the relative precedencies
of Glencairn and EgUnton, fixed by the decreet of 1648, inverted
on the Boll of ParUament, on the 1 7th January 1650. But this
was immediately foUowed by a protest by Glencairn, 3d June
1651, appealing to the decreet of 1648: the mistake was

SECT. III. THE EAELDOM OF MAE. 39
rectified at the earliest opportunity in the next Parliament,
and the ranking, thus corrected by the Court of Session,
with full recognition by the Parliament, was adhered to till
the Union, stands at present on the so-called Union Boll, and
determines the relative precedency of the Peers (for the
Earldom of Glencairn is dormant only, not extinct) at the
present moment.
It thus appears that, although the ranking of Glencairn in
the Decreet of 1606 has been altered, as Lord Kellie states,
" more than once," in 1600, 1647, 1648, 1649, and 1650, it has
never been so altered as to warrant the inference which Lord
KelUe's words — incautious words, as I assuredly believe, but
not the less misleading — suggest. The original alteration in
1610 by decreet ultimately stood; the rescission of that decreet
in 1617 was purely upon a technical informality; that infor-
maUty was rectified, and the original correction of 1610 re
affirmed, in perfect consistency, in 1648: the judgment of
1648 was set aside by the outrageous and illegal action of a
Parliament in rebellion : but the Act Bescissory of 1660, which
swept away that Parliament with all its Acts, restored the
judgment of 1648 once more to its legal force and recognition.
The words " more than once," true to the ear, are thus erro
neous in sense. The principle of the correction in 1610 was
never reversed ; for it is impossible to describe the mere quash
ing of that judgment in 1617 on a pure informality as im
puting discredit or vacillation to the Court of Session.
But if the Three Estates constituting the ParUament of
Scotland at aU times respected and upheld the Decreet of
Banking and the corrective decreets of the Court of Session, and
the decreet of 1648 in particular — except while in rebellion —
this example has not been followed of late years by that single
Estate or House of the Parliament of Great Britain which
might have been supposed the most earnestly conservative
of constitutional and legal principle. The narrative of the
vicissitudes of the Glencairn precedency and the present exposi
tion of the law as affecting the Decreet of Banking and the
decreet of 1648, would be incomplete without some few addi
tional words tracing its history very briefly down to the pre
sent time. In a word, the House of Lords stands committed
to a disallowance of the judgment of the Court of Session in

40 THE EAELDOM OF MAE. let. vn.
1648, and of the Union EoU, and to a recognition of the Decreet
of Banking as right in the precedence originaUy accorded to
Eglinton and the three other earls above Glencairn ; and thus
to a very awkward state of chronic collision with the supreme
authority of the Court of Session, their final judgment of 1648,
and the protective sanctions of the Treaty of Union, — the
House having no authority to advise the Crown otherwise than
in accordance with the judgment of 1648; and aU that has
followed upon that advice has been necessarUy ultra vires. T
have now to speak of the Glencairn claim in 1797, and of the
Montrose claim in 1853, so far as the Decreet of Banking and
the judgment of the Court of Session of 1648 are concerned.
The representation of the Earls of Glencairn having divari
cated in the seventeenth aud the last century between the
heirs-general and heirs-male, the dignity was claimed in 1797
by the heir-general. Sir Adam Fergusson of KUkerran, by peti
tion to the Crown ; and the claim being referred to the House
of Lords, the Lord Chancellor Loughborough (other'wise Lord
Eosslyn) advised the Committee, which reported to the House,
and the House to the Crown, that he had not estabUshed the
claim. Sir Adam, standing necessarily on the decreet of 1648,
claimed under the charter of 1488 and the limitation " haeredi-
bus suis," whether rightly or not (in respect of the interpreta
tion of that limitation) may be the subject of a future observa
tion. The Court of Session had in 1648, as we have seen, de
clared the charter to be valid, as not affected by the Act Bescis
sory of James iv., and upon that ground exclusively reduced
the Decreet of Banking to the effect of giving Glencaii'ii the
precedency, which, as I have stated, stands accordingly on the
Union Boll, and is binding at the present day. But Lord
Loughborough, the only peer who spoke on the occasion,
affirmed that the judgment of 1648 was not founded on the
charter of 1488, and that the Act Bescissory must be under
stood to have cut down that charter, passed over the Decreet
of Banking and tbe Union Boll iu utter silence, and advised
the Committee that the Act Bescissory did annul the charter,
and consequently that Sir Adam Fergusson had no claim
under it; and, therefore, that the existence of the dignity
must be referred to a lost patent — a plea which had been urged
by EgUnton in 1648, but which was disaUowed by the Court of

SECT. III. THE EAELDOM OF MAE. 41
Session — the presumption under which absence of a patent must,
according to the rule established in the CassUUs and Suther
land claims, be in favour of the heir-male against the heir-
general. It follows that, were the Glencairn heir-male to claim
under this lost patent, the private rule of 1762 and 1771 (and,
I may now add, of 1875), and Lord Loughborough's decision, and
obtain a favourable report from the House, Eglinton and the
other peers postponed to Glencairn in 1648, and so ranking in
the Union BoU, might claim to be restored to their original
precedence by an alteration of the Union BoU ; and were the
House to make an Order on the subject — as they made a prac
ticaUy similar Order in favour of Lord KelUe in 1875 — direct
ing tbat the Earl of Glencairn should be called in the place and
precedency originaUy assigned him by the Decreet of Banking,
it would be open to Eglinton himself, as an honourable gentle
man and good patriot, or any other Scottish Peer, to refuse to
recognise such unwarranted pretensions, and prosecute an action
before the Lords of Session, calUng upon them to sustain their
final judgment of 1648 against their rescinded judgment of
1617, and the Decreet of Banking, upon which alone Glencairn
could be deprived of his existing and legal precedency. It is
hardly necessary to remark that Lord Loughborough was wholly
in error in the supposition that the decreet of 1648 was not
founded upon the charter of 1488, as unaffected by the Act
Bescissory ; and that his passing over the standing fact of the
precedency of the Earldom of Glencairn on the Union EoU,
under the judgment of 1648 reducing the Decreet of Banking
in that particular, was still less excusable.
But this is not all ; for in the claim to the Dukedom of
Montrose in 1853 — notwithstanding the fullest exposition of
Lord Loughborough's errors — Lord Cranworth and Lord St.
Leonards, in their so-called "judgments," reiterated and enforced,
them aU, to the effect of recommitting the House to the unten
able position of supporting the interim award of precedence to
EgUnton by the Commissioners of Banking in 1606, against
the corrective judgment of the Court of Session in 1648, acting
not only on their supreme authority in civilibus, but as the
court of final appeal under the salvo in the Decreet of Banking
itself, and thus against the Bolls of Parliament from 1667 to the
Union, the Union Boll itself, and the protective sanctions of

42 THE EAELDOM OF MAE. let. vn.
the Treaty of Union, under all of which Glencairn stands before
Eglinton and the other Earls to whom he was originally subor
dinated. The circumstances are briefly these : —
The original Dukedom of Montrose and the Earldom of
Glencairn were created under precisely similar or rather iden
tical circumstances by James iii., within ten days of each other.
Both of them were represented by EgUnton in 1648 as ha'ving
been cut down by the general Act Bescissory, under the clause
"creation of new dignities," after the accession of James rv.
Had this been so in the case of Glencairn, Eglinton would have
been entitled to the precedence before Glencairn accorded to him,
in the absence of the charter or patent of 1488, by the Commis
sioners of Banking. But the Court of Session, by the decreet
of 1648, with the patent before them, decided that the Act
Bescissory took no effect on the Glencairn charter, which stood
vaUd as the sole creation of the dignity. My father, the late
Earl of Crawford, claimed the Dukedom of Montrose (among
other grounds) upon this judgment of 1648, the two dignities
being in the same boat so far as the Act Bescissory was con
cerned, that Act being admittedly the only bar to its recogni
tion ; while he contended, further, that by aU principle and
precedent the Act could not have had the effect ascribed to it.
But Lord Cranworth and Lord St. Leonards, laying it down that
the decision of Lord Loughborough in 1797 was binding on the
House, right or wrong — in the face of the fuUest proof that he
had been in error throughout in matters of fact as weU as law,
and that the judgment of the Court of Session was final, and
such as it would be ultra vires of the House to ignore and dis-
aUow — dismissed the claimant's argument, on the ground that
the three Glencairn and Eglinton decreets, the ruUng one by
the Court of Session in 1648, and the two by the Parliament
in rebeUion in 1649, were of equal force and validity, thus
neutralising each other, and leaving the way open for the House
to report against the Montrose charter of 1488 and Lord Craw
ford's claim, on the ground that the Act Bescissory had cut
down the charter, even as it had cut down that of the Earldom
of Glencairn. The words of the noble and learned Lords were
as foUows, and I quote them the rather, as I think it not im
probable that they may have influenced Lord KeUie's mind
while penning the three words " more than once," to which I

SECT. III. THE EAELDOM OF MAE. 43
have been compelled to devote so many pages — although not
more than they deserve : — After a review of the successful
decreet, and denial that there was anything in the judgment of
the Court of Session in 1648, " which shows that they acted upon
the Act Bescissory at aU," which is directly against the evidence.
Lord Cranworth concluded: " But, my Lords, it is idle not to see
that to derive any precedent to guide your Lordships from the
transactions of those troublous times would be really to shut
your eyes to what must have been the truth of the case. The
Court of Session decided one way, and, as a matter of course,
Parliament decided the other way. And afterwards, when the
tables were again turned, the new Parliament revoked what
the former Parliament had done." Thus, while assuming that
the Court of Session and the Parliament were equally Uable to
undue influence, equally corrupt, and that ParUament had as
much right to adjudicate in the matter as the Court of Session,.
Lord Chancellor Cranworth, constrained to admit that the
decision of the Court of Session ultimately stood and has
ruled ever since, concluded that the House ought to reject
all evidence, all rulings on the subject, one way or the other,
so as to leave the House at Uberty to report against the
charter. Lord St. Leonards treated the case very nearly in the
same way. He began by an argument to prove that the
Court of Session had no jurisdiction in dignities, concluding:
"Then, my Lords, the exclusive jurisdiction of the Court of
Session falls to the ground. But I do not myself see," he pro
ceeded, " that this matter has any important bearing upon the
argument either one way or the other. Your Lordships see
that exactly as either the one power or the other preponderated,
so was the decision. If you wUl tell me the date of the Par
Uament, and want to know the decision, I wiU teU you what
it was ; because, knowing who was in power, I should know
what the decision was. The decision always went according
to the power which at the moment ruled ; and that very
resolution of 1648" (Lord St. Leonards thus speaking of the
judgment of the Court of Session as if it had been a resolution
in Parliament) " was upset by a resolution of Parliament in
1649 " (meaning by this the pseudo-judgment or decreet of the
rebellious Parliament 9th March 1649) ; "and that ParUament
itself was again struck at by a subsequent resolution" (that is.

44 THE EARLDOM OF MAE. let. vii.
by the great Act Bescissory or of Eevocation, by which the
proceedings of the rebellious Parliament were deemed nuU and
void in 1662). ''But what does it all amount to? only that
there is a continual uncertainty, a continual fluctuation in the
decisions upon the subject, which detracts from the weight
which other-wise might be given to any one of those decisions,
or to aU of them taken together."
These extracts may show the utter misapprehension as to
the authority of the Decreet of Banking as corrected by the
Court of Session, and of the Union Eoll as resting upon these
two piUars, which prevailed in 1853, a period when, according
to Lord CampbeU, the administration of justice in the House
of Lords had sunk to a very low ebb ; and wliich misapprehen
sion lies at the root of the contention in Lord KelUe's Letter
against my argument in favour of the continued existence of
the ancient Earldom of Mar, as testified to by the precedency
assigned to it by the Decreet of Banking and the Union EoU,
and never questioned till 1875. The dicta of Lord Cranworth
and Lord St. Leonards above quoted can, of course, only be
accounted for by a blind and hopeless confusion in their minds
of what was legal and constitutional, standing and ruling
at the present moment, with what was Ulegal and unconstitu
tional, and which never had anything but a spasmodic existence
during the fever fit of anarchy and rebeUion culminating in the
murder of Charles i., and to which a happy end was put by the
Eestoration. It was a strange shifting of the scenes, an
unlooked-for change in dramatic character, a quaint Ulustration
of the irony of fate, that a Whig Lord Chancellor, boasting of
the " omnipotence of ParUament," and a Tory ex-Chancellor,
the law officers of a Sovereign, the heir aUke of James ill. and
Charles i., who lost their lives in opposing revolution, and the
descendant of that " James Graham," the great Marquess, whose
patent was so distasteful to the rebels of 1649 that they sought
to crush it down in principle by crushing down that of the
Earldom conferred for similar loj-alty in 1488 on the house of
Kilmaurs, should all have been found in combination in 1853,
against public policy no less than private justice, to support
the Act of a Parliament, the leaders of which were under the
papal excommunication in 1488 as the murderers of James III.,
and the decreets of a Parliament whose members in 1649 were

sect. III. THE EAELDOM OF MAE. 45
supporting a cause, by their own confession precisely identical,
against the recognition of a dignity which, by the decreet of
the supreme civU tribunal in 1648, could not be affected by
the Act Bescissory; whUe the Parliamentary decreet of 1649,
proceeding in every sense of the word a non habente potcstatem,
which attempted to sweep that judgment away, was itself
rescinded in 1662 — the Parliament subsequently to that year
supporting the decreet of the Court of Session, and the Union
Boll testifying at the present day to the precedency affirmed
by it to Glencairn in correction of the Decreet of Banking of
1606. But the anomaUes of the position are by no means ex
hausted. While the House of Lords stands committed in the
cases of Glencairn and Montrose to compUcity with the
rebellions of 1488 and 1649, and to the disaUowance of digni
ties granted by legitimate Sovereigns in support of the cause of
loyalty and order — the Marquesate of Montrose in the Grahams
ranking with the Dukedom in the Lindsays in this category —
and this through a disallowance of the final judgment of a
Supreme Court, the Court of Session, in 1648, and a practical
adoption of the counterdecreets of the usurping ParUament,
2d March and 9th March 1649, although rescinded after
the Eestoration ; the House stands equally committed to
a recognition of the Decreet of Banking as correct in the
precedency originally assigned to Eglinton, and the three
Earls immediately next to him above Glencairn, and to the
affirmation that all that has followed to the discredit of that
precedency, including the Union Boll, has been in error. The
inference would be to the credit of the precedency accorded to
Lord Mar by that Decreet, and thus in favour of my contention,
and Lord KelUe's own objection might be thus retorted to his
confusion. But this inference could only be founded on through
an oversight of the fact that by the views taken ut supra by
the House of Lords, they are committed to a very awkward
state of chronic collision — which I should thus be involved in
— with the supreme authority of the Court of Session in 1648
— as they have additionally recommitted themselves recently
in their disallowance of the Mar and Elphinstone judgment of
1626 — and with the protective sanctions of the Treaty of Union,
the House having no authority to advise the Crown otherwise

46 THE EAELDOM OF MAE. let. vii.
than in accordance with those judgments, and all that has
foUowed upon that advice having been necessarily ultra vires.
It may be curious to consider in this connection what would
be the action of the House, judging by the views of its
authority upon which the Eeport of 1875, and the Order
addressed to the Lord Clerk Eegister in the same breath, pro
ceed, supposing a claim should be estabUshed to the Earldom
of Glencairn, and the successful claimant should offer to vote
at an election at Holyrood,'in the precedency affirmed in 1628
and in the Union Boll. The Earl of Eglinton might at once
allege that by the Glencairn and Montrose "judgment " in 1797
and 1853, the decreet of the Court of Session reversing the
precedency in 1648 had been overruled, and that the ranking
in the Union Eoll was incorrect, and crave an order to carry
out the " judgments," more especially that of 1 797. The House
must either grant an Order, on the assumption of power upon
which the Order at present in force against the heirs-general of
Mar proceeds, or stultify itself by refusing one. If the Order
were granted and acted upon, Glencairn could bring an action
in the Court of Session, demanding affirmation of his rightful
place on the basis of the decreet of 1648. If the Order were
refused, Eglinton could equally bring an action on the ground
that the Court of Session had no jurisdiction in dignities, as
inculcated by Lord St, Leonards in the Montrose case in 1853,
or that the omnipotence of Parliament was sufficient to destroy
the dignity as asserted by Lord Cranworth in the same case of
Montrose. But enough of this, — I have said thus much simply
to illustrate the pitfalls and quagmires into which the wisest
must fall, when they walk with eyes blinded aud without guid
ance through this labyrinth of a foreign law in which they have
not been trained, such as that of Scotland.
Such is the origin, character, and sanction of the Decreet of
Banking, and of the Union EoU, as ascertained from the
original sources ; and it wiU now be evident that the objections
to the Decreet in a general point of view are untenable on the
three points or articles specified. The charge of " mere super
ficial inquiry " during only half a twelvemonth is grounded
on an imperfect and inaccurate conception of its object and
effect, and on inadequate apprehension of the extraneous and
superior sanction by which it was accompanied. The possi-

SECT. III. THE EAELDOM OF MAE. 47
bUity of evidence having been withheld for the purpose of ob
taining higher precedency than the peers were entitled to is
one of so extraordinary a character, implying such an impeach
ment of the honour and integrity of the peers of Scotland at
the time, that I hardly know how to characterise it, proceed
ing from such men as Lord Chelmsford and Lord Bedesdale.
The best refutation wiU be in the refutation of the special
charge against John Earl of Mar upon this score in the en
suing Section. The third objection, from the instances of
coiTection by the Court of Session in the cases of Buchan and
Glencairn, has been shown to be untenable as against the trust
worthiness of the Decreet in cases such as that of Mar, in
which the precedency awarded has never been questioned
in the only mode in which it could have been reduced, viz.,
by process before the Court of Session, but, on the contrary,
stands at the present day by virtue of the Decreet, and is
secured by prescription by the Act of 1617, no protest against
it having ever been lodged.
It is evident that if the preceding General Objections are
untenable, the Special Objections, to be noticed in the ensuing
Section, must stand each on its own merit, and with the onus
prohandi against Lord Kellie, not vice versa against myself. I
shall meet them however without calling in any aid except the
simple testimony of fact and law — facts resting on historical
evidence, not theory — law, that of Scotland, the sole criterion
in these Mar matters.

Section IV.
Special Ohjections regarding the case of Mar.
The points of criticism are more numerous under the second
head or division of the Objections against the Decreet of Bank
ing and the Union Boll, in regard to the special case of the
Earldom of Mar ; but I shall be able to answer them, I think,
in less space than I have been obliged to devote to the objec
tions under the first and broader, or general head.
Lord Kellie commences his observations on the Mar pre
cedence in the Decreet of 1606 by an observation which I have
thought hardly worthy of being included in my categorical

48 THE EAELDOM OF MAE. let. vii.
summary, to the effect that if the Commissioners had had
any idea of the Earldom of Mar held by Earl John under
Queen Mary's charter being the ancient dignity, they would
liave summoned him as first in order of all the Earls. In reply
to this, I have to observe that the order in which the Peers are
named in the charge or summons, as recited at the beginning
of the decreet, so far from being governed by any impressions
of the nature suggested, affords the strongest possible proof of
the confusion and irregularity which the Decreet was intended
to rectify, unless, indeed, as I have been incUned to think, the
names of the Peers, within the limits of their particular orders,
were all shuffled together and inserted in the summons as they
came out of the urn, so as to avoid all possible appearance of
prejudgment, petitio principii, on the questions submitted to
tbe Commissioners. If Mar is summoned last but five among
the Earls (as in the passage in Lord KelUe's Letter, which I need
not retranscribe here), Angus, who by ancient claim and general
allowance was entitled to the first place and vote, is summoned
seventh from the last, among a list of twenty-five Earls. And
Lord Scone, the last Baron, or Lord of Barliament, created
before the 5th March 1606, and ranked the last accordingly in
the ordinance that concluded the Decreet, is summoned twenty-
eighth from the last among thirty-seven Lords of ParUament,
and immediately before Lord Lindsay of the Byres, to whom
the first place among the Peers of his order is assigned in the
ordinance. Lord Kellie's observation would be pertinent if the
opinion embodied in the Besolution of 1875 were weU-f ounded
— but that is the question between Lord KeUie and myself.
I may also notice here, although merely for a passing
observation. Lord KeUie's objection that the Earldom of Mar is
not ranked earlier than 1404 in the Decreet of Banking,
whereas, according to a statement in a paper of my own which
has been printed, the Earldom existed as early as 1014. I can
hardly believe that this reference, and the argument founded
upon it, are serious. It may be sufficient to observe that the
"Annals of Ulster," iu which this historical fact is recorded, were
printed for the first time in 1853, and were wholly unknown
to the Commissioners of 1606.
(1.) The first of the Special Objections to be dealt with — one
which, if substantiated, would have the force of a catapult—

sect. iv. THE EAELDOM OF MAE. 49
was originaUy aUeged by the late Lord Kellie in his case and
pleadings, was adopted and enforced by Lord Bedesdale in his
address to the Committee, and endorsed in part by Lord
Chelmsford. Lord Kellie has not repeated it in his Letter to
the Peers, out of a graceful respect (I presume) for the memory
of his ancestor, whose character has been so rudely challenged.
I subjoin Lord Chelmsford's and Lord Bedesdale's development
of the objection, which I have summarised ut supra — that " the
Commissioners acted and the Decreet proceeded in ignorance of
the true facts of the case affecting the Mar precedency, in con
sequence of Earl John having adduced e-vidence which, as
exclusively relating to the territorial earldom or fief, did not
bear upon the question of its dignity and its precedency, and
of his having withheld the knowledge of historical facts, and
fraudulently suppressed and subsequently destroyed docu
ments, which facts aud documents, if known to the Com
missioners, would have induced them to award the precedency
solely from 1565, on the same grounds upon which the House
of Lords has now reported in favour of Lord KeUie."
Lord Chelmsford said : — " This Decreet of Banking was
issued on the 5th of March 1606 (39 James vl) . . . Under
this Commission each nobleman, in order to establish his pre
cedence, offered to the Commissioners such evidence of his
title as he chose, their power being necessarily limited to the
verification of the documents produced, and to forming their
judgment upon them, and having no means of knowing whether
anything was withheld from them which would affect the
order of precedence founded upon the proof presented. There
fore their decision can carry no weight on the investigation of
a claim to a title which depends upon facts not laid before
them. . . . No records of the ancient dignity, and nothing
prior to the charter of December 1404, were produced to the
Commissioners. Isabel's charter of the 12th August seems to
have been purposely kept from them. . . . During the whole
of the inquiry as to the ranking of the Earl of Mar, whose claim
to precedence was founded on his right of succession to the
ancient dignity, but the proof of which went no further back
than 1404, the Lords Commissioners seem to have been in
ignorance of the charter of resignation of Alexander Stewart
and his son Thomas to the King, and his regrant to them in
VOL. II. D

50 THE EAELDOM OF MAE. let. vn.
1426, and of the fact that the claims of the Earl of Mar to the
ancient dignity had been allowed by his predecessors to remain
dormant for nearly 140 years, whUe they had acquiesced in
the Crown conferring the dignity of Earl of Mar and granting
the lands connected with it, to persons no way related to the
former possessors of that dignity. Had the Commissioners
been furnished with this information, there can be Uttle doubt
that they would have determined the precedence of the Earl
of Mar by reference to the creation of the dignity by Queen
Mary." Lord Bedesdale in his speech takes a very unfavourable
view of the actions of the Earl in 1606. " In support," he says,
" of the opinion that at a later period the ancient peerage was
held to be extinct, I would refer to the documents lodged by
the Earl of Mar in 1606 for the Decreet of Banking. These
were the surrender by IsabeUa in 1404, and the regrant to her
self and Alexander and to her heirs, and the confirmation
thereof by Bobert iii. ; a letter from that King to Sir Thomas
Erskine in 1390 promising that he would not recognise any
resignation of the comitatus to his prejudice '' (or, I would
interpose in the actual words, " of that at sho aucht to suceede
to as lauchful ayre"), "and the Act of ParUament of 1587
which ratified the grant of the comitatus by Queen Mary. AU
these documents related to the territorial Earldom only " (that
is, it will be remembered, to what Lord Bedesdale imagines to
have been the landed estate, irrespectively of any title of
dignity, which he conceives to have been always, and in the
Mar case, confirmed by a distinct grant). " No records of the
ancient peerage were produced, and the ranking sought was
confined to whatever might have been granted in 1404, which
would give a precedence of 1 6 1 years over that given by Queen
Mary in 1565 ;" thus even in Lord Bedesdale's idea, amply
sufficient to refute the notion of a new creation in 1565. My
observation upon Lord Chelmsford's simUar criticisms apphes
to this also, and to Lord Bedesdale's subsequent observation :
"Mr. Hawkins," Lord Mar's counsel, "in answer to a question
why earlier documents were not produced, said that the Earl
probably produced the earUest Crown charters he could find,
and that, as far as he was aware, there were no earUer docu
ments on the Mar title, omitting to notice the Acts of Parlia-

sect. IV. THE EAELDOM OF MAE. 51
ment at pages 591 to 597 of the Evidence, in which Donald
Earl of Mar in 1283 is mentioned, and Thomas, Isabella's uncle,
in 1369, public documents as accessible to the Earl on that
occasion as for the present inquiry.
" The ranking sought for," Lord Bedesdale proceeds, " was
obtained," i.e. from 1404; and a necessity thereupon arose for
destroying all records which would, if discovered and produced
at any future period, take away that precedence. If the
charter referred to in the memorandum before mentioned," a
memorandum rejected by the Committee as not evidence,
" granted a peerage-earldom of Mar to William Earl of Douglas
and his heirs-male by Margaret, or if, as is more probable, it
dealt with the comitatus in a manner adverse to its having a
peerage attached to it," both alternatives being, I must observe,
purely hypothetical, " it might be fatal to the ranking obtained
through the production of Isabella's charter of 1404 ; and the
destruction of the deed is thus accounted for." " If Alexander"
Stewart Earl of Mar, Isabel's husband, " had obtained a grant
of peerage in 1426 to himself, with remainder to his natural
son," i.e. by one of those separate patents of which several
scores have been suggested by the partisans of the heir-male
during the last century, and not one has ever been dis
covered either in the original or on record, " or an earlier one
to himself and his heirs-male or general by Isabella," that is,
by a lost patent of peerage previous to the death of Isabel in
1407, emanating, of course, from the exchequer of hypothesis,
" the production of either would upset the ranking obtained
by means of the charter relating to the comitatus, with re
mainder to heirs-general," i.e. that of 9th December 1404, con
firmed 21st January 1404-5. "Equally fatal would be a
charter by Queen Mary, granting the Earldom as a new
creation in 1565," ^.e. a charter of a "peerage-earldom" dis
tinct from the charter of comitatus, and on the assumption of
the issue of which the Eeport proceeded in favour of Lord
Kellie, which, of course, must be presumed a fortiori to have
been destroyed. "Having obtained a ranking to which he
was not entitled by- the production of documents which the
present inquiry has shown related to the lands of the comitatus
only," i.e. through the application of the novelty which I have
styled Lord Camden's law in 1771, " the destruction of charters

52 THE EAELDOM OF MAE. let. vn.
which were no longer wanted for the purposes for which they
were granted, but which would be fatal to the retention of that
ranking, appears a probable and almost a necessary conse
quence; and the memorandum relating to the charter of
Bobert iii. affords some evidence that such destruction may
have taken place;" what evidence, I confess, I do not com
prehend. My answer to all this is, in brief, as follows : — No impor
tant document bearing on the claim to precedency was with
held or suppressed, much less destroyed ; and those specified by
Lord Chelmsford and Lord Bedesdale as withheld were not such
as were admissible, even had they been offered in e'vidence,
being null and void by the retour of service in 1565, the Act
of Parliament 1587, and the judgment of the Court of Session
in 1626 — all of which Lord KeUie and the House of Lords
have put aside, as not bearing upon the case, subordinating the
Scottish law on the subject to the traditions of 1762 and 1771.
As a basis for what I have to say, I may give, in the first
instance, the list of documents actuaUy laid before the Commis
sioners by Earl John, as given in the most authentic form in the
schedule of the entire series of evidence upon which the Commis
sioners settled the precedency — the schedule commonly known
under the title "De Jure Prselatiouis NobUium Scotise :" —
" Mar. — Compeirit Comes de Mar. Producit ane chartour
of Dame Isabel Douglass Countasse of Mar, and Alexander
Stuart, sonne to the Earle of Buchan, her spouse, of the Earle-
dome of Mar, with the castel of Keldrumie and Lordsliip of
Garioch, the 9 of December, 1404. — Item, ane chartour of confir
mation maid be King Bobert the 3, confirmand the chartour
above writtin, 2 Januarii 1405 " (i.e. 21st January 1404-5). —
Item, ane Letter made be K. Eobert the 3, ta Sir Thomas
Erskyne, Knight, promisand that the King should not receave
ane " (" any " in other MS. copies) " resignatioun of the Earle-
dome of Mar to be maid to Isabel Douglass Countesse of Mar,
22 of November anno 4ti regni Eegis " (/.c. 1393). " Item, ane
Act of Parliament in anno 1587, ratifeing the haill rights,-
tytills, and securities and provisions made of" (to) " Thome"
(other copies, moro correctly, John) "Earle of Mar and his
predeeessours, of the Eaiiedom of Mar, as aire be progress to
Dame Isabel Douglass Countess of Mar. Item, ane extract of

SECT. IV. THE EAELDOM OF MAE. 5»
ane retour of the dait the 20 of Merch 1588, quhairby Thomas "
(John) " Earle of Mar is servit nerest and laufuU aire to Dame
IsobeU Douglass, Countesse of Mar." ^
Of these documents, the first and second were the funda
mental rights relied upon, showing that, on failure of heirs of
Isabel's body, the succession was destined to heirs-general or
coUateral. The third, the Letter of Eobert ill., pledged the
King against the acceptance of any resignation by Isabel in
prejudice of the right of these heirs collateral ; the King testify
ing at the same time that Sir Thomas Erskine (in right of his
wife) and their heirs were the " veri hseredes " of Isabel. The
fourth document, the Act of Parliament of 1587, gave the royal
and parliamentary testimony to the charter and confirmation of
the Comitatus, 9th December 1404 and 21st January 1404-5,
and to the charter of restitution of the Comitatus by Queen
Mary, 23d June 1565, with full recognition of the fact that
Eobert Lord Erskine, the son and heir of Sir Thomas above
mentioned, succeeded as heir to the Countess Isabel after her
death, and that of her husband in 1435, and was lawfully
retoured her heir under the fundamental charters Nos. 1 and
2, quaUfying him in consequence Earl of Mar — Earl John in
1606 being Bobert's direct and lineal representative, as proved
by the service of 5th May 1565, which preceded the charter.
Lastly, the retour 20th March 1588-9 — i.e. the general retour
to the Countess Isabel, not (as previously shown) the special
Betour — legaUy proved that his propinquity had been estab
Ushed, and the service retoured to Chancery, after the most
exact proof had been given of the Unks of connection, neces
sarily ascending to the common ancestor, Gratney Earl of Mar,
living at the close of the thirteenth century, as by the testi
mony of Sir Thomas Craig elsewhere given. It was impossible
to exhibit a progress or claim of more precise proof than was
thus laid before the Commissioners. It is objected that all
these documents relate to the territorial Earldom, as Lord
Bedesdale styles it, i.e. the landed estate, and not the dignity
or " peerage;" — the objection being grounded on Lord Camden's
rule of 1771. But, while the general retour 20th March
1588-9 — which proves Earl John to have been lineal de-
• Carmiohael's Tracts, p. 3. [Cf. Miscellany of Maitland Club, Part IL
p. 368, aud Minutes of Evidence iu Mar Claim, p 442.]

64 THE EAELDOM OF MAE. let. vii.
scendant and next heir to Gratney, Earl of Mar in the
fourteenth century, and thus, even on Lord Bedesdale's view,
entitled to the dignity /wre sanguinis — must be excepted from
the sweeping category of condemnation. Lord Camden's rule
and the theory on which it proceeds have been sufficiently
shown to be without foundation, and contradictory of Scottish
law, custom, and testimony ; while, if it had any foundation,
neither Lord Mar (with the above exception) nor the greater
number of the Peers of Scotland in 1606 had any evidence
to produce as to the creation or antiquity of their dignities
upon which they could claim jDrecedence. A perusal of the
evidence in the "De Jure Prselationis " is sufficient to show
that if Lord Camden's law had then obtained, the e'vidence
actually adduced in Earl John's behalf, and in other cases in
numerable, would have been rejected by the Commissioners,
and personal patents called for, whereas none such were caUed
for, none produced ; and the awards proceeded on charters deal
ing solely with the lands.
Such being the evidence actually produced by Earl John,
and upon whieh the precedency was awarded to" him by the
Commissioners in 1606, we may now inquire what were the
documents which it is alleged were withheld or suppressed, and
afterwards destroyed, and which, if before the Commissioners,
would have necessitated an award of precedency from 1565
exclusively. It wiU be well for the reader to refer back to
Lord Chelmsford's and Lord Bedesdale's general words here,
that he may see the extent and the sanction of the charge.
Lord Bedesdale's words more especially were : " The ranking
sought for was obtained ; and a necessity thereupon arose for
destroying all records which would, if discovered and produced
at any future period, take away that precedence." The docu
ments withheld and destroyed, in terms ofthe present objection,
were as foUows : —
1. The charter mentioned in the scrap of paper found in the
Douglas charter-chest, entitled, "Memorandum for (fra)
the Eegisters," as foUows, — "Ane charter grantit to
WiUiam Erie of Douglas of the Earldome of Douglas
and Mar concesse." I have spoken of this charter in a
former Letter, and have shown that Lord Chelmsford
and Lord Bedesdale have expressed discordant views of

IV. THE EAELDOM OF MAE. 55
its iinport, and of the acceptabUity of the memorandum
as evidence of the existence and nature of the charter.
I need not say more as to that question. Lord Bedes
dale reverted to the charter when enumerating the docu
ments which he considers to have been withheld in 1606,
and destroyed afterwards, thus : — " If the charter re
ferred to in the memorandum before-mentioned granted
a peerage-earldom of Mar to WiUiam Earl of Douglas
and his heirs-male by Margaret" — a superhypothesis, if
such a word may be used, upon an hypothesis — " or if,
as is more probable, it dealt with the Comitatus in a
manner adverse to its having a peerage attached to it, it
might be fatal to the ranking obtained through the pro
duction of Isabella's charter of [9th December] 1404 ;
and the destruction of the deed is thus accounted for."
I may observe upon this suggestion, that as the refer
ence to the charter in the memorandum is not to an
original document, but to the registration of that docu
ment in the Great Seal Eegister, — while there is no
reason to believe that the roll, referred to as the hundred
and second in number, was missing in 1606, — the object
imputed to Earl John could only be accomplished by
destruction of the roll itself, with the necessary con
nivance of the custodier thereof; while, if the original
charter was in his possession, the suppression or destruc
tion of that charter would be unavaiUng for his success,
considering that it was engrossed on the Eegister, and
the Lord Clerk Eegister was in attendance with that
Eegister.
The charter 12th August 1404, of earlier date than that
of the 9th December 1404, confirmed by Bobert iil, —
the charter, it will be remembered, extorted from the
Countess Isabel, with limitation to Alexander's heirs,
not Isabel's. Lord Bedesdale does not include this
charter in his category of destruction, but Lord Chelms
ford speaks of it thus : — " Isabel's charter of the 1 2th of
August seems to have been purposely kept from them "
(the Commissioners). Such suppressive withholding, I
may remark, would have been useless ; for it is impos
sible to suppose that the Commissioners were ignorant

56 THB EAELDOM OF MAE. let. vu.
of it, inasmuch as it had been recorded by order of
James m. on the Great Seal Eegister in 1476, where it
now stands, and that Eegister was before them, the
Lord Clerk Eegister being also in attendance. It was
equally well known to all the numerous legal members
of the commission, and to Lord Elphinstone, a layman,
in particular, through the recent litigation in 1593, still
pending in 1606. The Act of 1587 proceeded on the
charter of 9th December 1404 and its confirmation,
repudiating the charter in question. Lord Chelmsford
makes no suggestion of destruction of deeds.
3. A charter or patent of personal peerage, a " peerage-
earldom," in favour of Alexander Earl of Mar, in 1426,
which Lord Bedesdale suggests may have been granted
to him in that year in compensation for his resignation
of the " comitatus " or territory of the earldom elsewhere
spoken of. " If Alexander," says Lord Bedesdale, " had
obtained a grant of peerage in 1426 to himself, with
remainder to his natural son, or an earUer one to himself
and his heirs-male or general by Isabella " — thus neces-
¦ sarUy before the death of Isabella, which was in 1407,
"the production of either would upset the ranking
obtained by means of the charter relating to the comi
tatus with remainder to her heirs-general," i.e. the
charter 9th December 1404. It is thus included in
Lord Bedesdale's category of deeds necessarily to be
destroyed. I may observe that had either of these
charters or patents existed, the presumption would be
tbat they would be found in the Great Seal Eegister ;
but it is not to be expected since the days of the Norse
heroes that a champion should do battle with an appari
tion, or rather, in the present instance, a double-headed
ghost.
4. The charter of a personal earldom, assumed by the House,
in accordance with Lord Mansfield's law, to have been
granted before 1st August 1565, in favour of John Lord
Erskine, with limitation to the heirs-male of his body ex
clusively, and held by Lord Bedesdale to have been with
held from the Commissioners in 1606, and subsequently
destroyed by Earl John. " Why that instrument is not

SECT. IV. THE EAELDOM OF MAE. 57
now forthcoming," observed Lord Bedesdale, when sug
gesting its former existence, " I will discuss .hereafter.''
And on coming to its place in the category of suppressed
evidence, he stated : " Equally fatal would be a charter
by Queen Mary, granting the earldom as a new creation
in 1565. Having obtained," so the noble Lord con
tinued and concluded, " a ranking to which he was not
entitled by the production of documents which the
present inquiry has shown related to the lands of the
comitatus only" (thus overlooking the general retour
of 1588-9), "the destruction of documents which were
no longer wanted for the purposes for which they were
granted, but which would be fatal to the retention of
that ranking, appears a probable and almost a necessary
consequence, and the memorandum relating to the charter
of Bobert iiL," i.e. the "Memorandum fra the Begisters,"
" affords some evidence " — how I cannot conceive, " that
such destruction may have taken place.'' The remarks
are equally obvious in regard to the supposed patent or
charter of a personal and peerage earldom circa 1407 or
in 1426, as to the supposed patent of a peerage-earldom
in 1565, that the grant of such a peerage must by
Scottish law" be presumed to have been with limitation
to heirs-general, while the actual existing charter 23d
June 1565 carried the dignity, and to "hseredibus" or
heirs-general, — that " de non apparentibus et de non exis-
tentibus" is a sound principle, — that the self-same
aUegation of a lost patent was disallowed by the Court
of Session in the Glencairn and Eglinton process and
judgment of 1648, and by the House of Lords when
advanced by the heir-male. Sir Bobert Gordon, in the
Sutherland claim in 1771, — that many must have been
living (as I have elsewhere remarked) in 1606 who
knew what had passed in 1565, only forty-one years
previously, — and that the presumption must be, accord
ing to the general rule, that the supposed grant by
charter, if made, would have been recorded either in the
Great Seal or Privy Seal Eegister. Lord Elphinstone
was especially interested in watching that Earl John's
dignity should not be referred to the ancient feudal

58 THE EAELDOM OF MAE. let. vn.
earldom held by Isabel. There can, in fine, be no
reasonable doubt that if the supposed charter or patent
was granted, it must have been produced ; but, on the
other hand, we know from the " De Jure Prffilationis" that
it was not produced ; and therefore the argument based
on its supposed existence falls to the ground. .It
follows that Earl John could not suppress a document
which never existed. But I am fighting with a shadow.
It is to be remembered, further, that the Lord Lyon
Kina of Arms, who was one of the Commissioners, was
officially bound to take note of aU creations of new
peerages, which were recorded in the books of his Court,
a register which is unfortunately no longer now in
existence ; and if a creation by charter of a peerage or
personal earldom was in question, immediate reference
would be to that officer, who could best testify to the
fact — the Lord Lyon himself being, as we now know,
one of the Commissioners in 1606. Again, a charter
by way of patent, not conveying lands, would be re
corded as matter of presumption in the Pri-vy Seal
Eegister. But no evidence of such patent was given
either from the Books of the Lyon Office or from the
Privy Seal or Great Seal Eegister, as proved by the
schedule of what was actually adduced; and nothing
can offer stronger negative proof that none such ever
existed. As already mentioned, personal creations of
dignity were unknown in Scotland in 1565 ; and such a
novelty constituting an epoch in the history of dignities
could not have escaped notice. Fm-ther, sdthough this
was not known to the House of Lords in 1875, Lord
Elphinstone, whose tenure of KUdrummie, already
threatened by Earl John, rendered him beyond all
others interested in preventing Earl John from obtain
ing a recognition of right to the ancient Earldom as
heir of Isabel, was another of the Commissioners, and
everything passed under his eye. There was thus a
most determined antagonist watching the proceedings
against any unwarranted pretensions on Earl John's part.
Lord Kellie suggests, in his Letter to the Peers, that
Earl John may have received a special grant of pre-

SECT. IV. THE EAELDOM OF MAE. 59
cedence from James VL, which would account for his
Earldom, although created in 1565, being ranked as it is
in the Decreet of Banking. His words are — " It is
possible that this precedency was granted to Mar by a
special warrant from the King ; but the original dignity
of Mar was certainly not ranked by the Commis
sioners." This warrant must have been recorded in one
of the three regular registers for such acts of the
Sovereign, the Great Seal Eegister, that of the Pri-vy
Seal, or that of the Lyon Office — the second record being
the natural one. But, if so, where is the evidence of its
production, and why was it not produced, in 1606?
That it was not so produced is clearly shown by the
sUence of the " De Jure Prselationis." Lord Eedesdale
gave no countenance to this suggestion.
I have to add the further observation, that it is abso
lutely impossible to hold, as Lords Chelmsford, Eedesdale,
and Kellie maintain, that the circumstances of the
Mar restoration in 1565, of the. long usurpation by the
Crown, of the right of Eobert Earl of Mar in 1438, and
of the legal status of the Erskines as the next heirs of
Isabel, the "veri hseredes" of the Letter of Eobert iii.
at the end of the fourteenth century, were unknown to
the Commissioners of 1606, much less that they were
kept in ignorance by the intrigues of Earl John. The
whole question had been gone into minutely at the
time of the Act of 1587, when Lord Elphinstone and
others protested in Parliament, and again in 1593, in
the process instituted by Earl John against Forbes of
Corse, only thirteen years previously to the Decreet of
Banking. All the documents, vaUd and invalid, affecting
the case, were before Parliament in 1587, and before the
Court of Session in 1593, Earl John founding upon the
legal, and his opponent on the illegal and invalid
documents ; so that Earl John met the Commissioners
in a blaze of light such as attended the claim of no
other peer whatever who stood in their presence in
1606. Lord Chelmsford's view, that the Commissioners
appear to have been in ignorance of the fact that the
claims of the Earl of Mar to this ancient dignity had

CO THE EAELDOM OF MAE. let. vii.
been allowed by his predecessors to remain dormant for
nearly 130 years, whUe they had acquiesced in the
Crown conferring the dignity of Earl of Mar, and grant
ing the lands connected with it, to persons in no way
related to the former possessors of the dignity, etc. etc.,
is equally negatived by these considerations.
I may add, that there is nothing in Earl John's
known character to suggest or support the UkeUhood of
his having been guilty of the turpitude imputed to him
— not by his contemporaries, but by his own descendant
and by two British peers in the nineteenth century.
It follows necessarUy, that if no suppression of e'vidence
took place in the case of Mar in 1606, but, on the contrary, the
Commissioners, far from being in ignorance, had knowledge of
all the facts and documents affecting the question before them,
and if, as cannot be contested, they were fuUy acquainted with
the law governing the interpretation of those facts and docu
ments, and must be presumed to have appUed it conscientiously
and correctly, then most certainly the Commissioners were not
induced through the suggested fraud to assign Earl John a
place of precedency to which he was not entitled, anterior to
1565 ; and, conversely, they were justified in doing so. I might
leave the matter here, without saying a word more — the simple
fact of the earlier precedence disproving the theory of a special
and personal precedence in 1565 — were it not for a further,
the second of these special objections, which denies that the
higher precedence can afford any argument iu proof that the
Earldom granted to Earl John in 1565 -n-as the ancient here
ditary Earldom held by the Countess Isabel in 1404.
(2.) This special objection is urged by Lord Kellie and Lord
Eedesdale in the following passages of Lord KelUe's Letter to
the Peers, and of Lord Bedesdale's speech in 1875, and his two
letters to the Times of 6th July 1877 and to myself of 19th
May 1879.
Lord KelUe writes : — " John Earl of Mar compeared before
the Commissioners of Banking, and produced a charter, pur
porting to bear that Isabella Douglas was Countess of Mar
in 1404; but that charter was not acknowledged by the Com
missioners, who only ranked him below the Earl Marischal,
whose title was created between 1455 and 1458."

SECT. IV. THE EAELDOM OF MAE. 61
Lord Eedesdale, in his speech, took a different view. After
founding upon the non-claim by the Erskines, and the fact of
the Crown having " treated " the Earldom " as extinct by new
creations" during 130 years, as "fatal blows to the claim," —
that is, to the unauthorised pretensions (as he esteems them)
of the heir-general, and on the fact of an " interval of more
than a month" having intervened "after the public acknow
ledgment by the Crown of Lord Erskine as heir to Isabella
(which gave him the ancient Earldom if it was held to descend
to heirs-female) before he became Earl at the time of the
Queen's marriage," as " the final and conclusive blow to it," —
Lord Eedesdale added, " No other Earldom but that " (the
ancient Earldom) " could be in IsabeUa, and the Earl did not
presume to contend for it in the Decreet of Banking, but set
up a fancy title, commencing with her. It was too weU
known in 1606," so Lord Eedesdale concludes, "that the old
peerage was held to be extinct in 1565 for him to attempt
to get it." I find some difficulty in reconciling this theory
of a "fancy title" and the accompanying observations with
bis statements in the second preceding paragraph, viz., that
" the ranking sought was confined to whatever might have
been granted in 1404, which would give a precedence of
161 years over that given by Queen Mary in 1565," and that
" the ranking sought for was obtained," that is, from 1404.
Lord Bedesdale's letter to the Times of the 6th July 1877
was a criticism upon views on the subject of the Decreet of
Banking and the Mar precedency expressed in a paper -written
by me, and printed in that journal on the 2d July 1877,
with reference to the approaching debate in the House of
Lords on the Duke of Buccleuch's Eesolution, hereafter to be
dealt with. After meeting my assumption " that the ancient
Earldom of Mar is still in existence," by stating that " the evi
dence before the Committee of Privileges has been held by the
House to prove the contrary," and my further assumption
" that in Scottish peerage cases the presumption is in favour of
heirs-female" by Lord Mansfield's dictum, "I take it to be
settled, and weU settled," etc. etc., in the Sutherland case, Lord
Bedesdale proceeds : — " From the death of the last heir-male
in 1377 to the creation of Lord Erskine as Earl of Mar in
1565, there is no proof of any one being in ParUament as Earl

62 THE EAELDOM OF MAE. let. vii.
of Mar except under new creations to persons in no way de
scended from the old Earls. It is difficult to imagine any
stronger proof of extinction. The placing of the Earl of Mar
under the Decreet of Banking is unquestionably erroneous.
The date assigned to it was 1457, not 1404, as stated by Lord
Crawford. It was not the date of the old Earldom, nor that
of Queen Mary's creation, though nearer to the latter than the
former. . . . Lord Crawford's assumption that by the Decreet
of Banking a precedence of 1404 was allowed is forthe purpose
of making it appear that the Commissioners on that occasion
accepted the charters or surrender and regrant of the territorial
Comitatus by IsabeUa in that year as proving that the honour
went with the land," — upon which /must interpose the remark
that I had no such arrihre pens4e, but stated the precedence as
Lord Eedesdale had already stated it, as depending on the
charters of 1404 and 1404-5, and because the honour did go
with the land, as abundantly proved by Lord Hailes in his
Additional Sutherland Case in 1771. " They, however," i.e. the
Commissioners, continues Lord Eedesdale, " placed the Earl of
Mar after the Earl of Erroll, created in 1452 ; the Earl Marischal,
created in 1454; and the Earl of Caithness [? Sutherland], of
about the same date, giving to Mar one of 1457 " — a passage
on which I must observe that there is no authority for any of
these dates — they are approximative only, the precise dates
of creation being unknown, except in the case of ErroU in
1452 ; and that rests solely on the authority of the Auchinleck
Chronicle, a most valuable and authentic contemporary MS.,
which, nevertheless, the House of Lords rejected as evidence in
the Annandale claim in 1876, a rejection which, it might be
urged, were it of the slightest consequence, incapacitates Lord
Bedesdale from founding upon it. " In refusing to recognise the
peerage," continues Lord Eedesdale, " as being connected with
the territorial Comitatus in the person of Isabella, who was the
heir of the last Earl of male descent, they " (the Commissioners
of Banking) " must be held to have considered the ancient Earl
dom to have been extinct. It is impossible to imagine on
what grounds they gave the precedence of 1457, when certainly
there was not any Earl of Mar in existence. If they had had
the evidence before them which was before the Committee of
Privileges, they must have come to the conclusion adopted by

sect. iv. the EAELDOM OF MAE. 63
the House in 1875. It was proved by that evidence that Lord
Erskine sat as such on the Queen's Council in 1565 on the 25th
of July, and on the 1st of August sat as Earl of Mar. The
restoration of the territorial Comitatus to him as heir to
IsabeUa was on the 23d of June, more than a month before he
became Earl. That the ancient Earldom was not restored to
him was shown by his sitting at subsequent Councils as junior
Earl." Lord Eedesdale overlooks the fact that before the Decreet
of Banking there was, as a rule, no settled precedence ; and in
the records of Parliament each Lord was put down as he came
in. " Further proof that he was created at that time, on the
occasion of the Queen's marriage to Darnley, is found in a
letter from Thomas Bandolph, the agent in Scotland of
Queen Elizabeth, to the Earl of Leicester, dated the last day
of July 1565, giving an account of all that occurred at the
marriage, in which he says, 'to honour the feast the Lord
Erskine was made Earl of Mar ; ' " Lord Eedesdale forgetting
here, as he did in his speech in the Committee of Privileges,
that this letter of Bandolph had been rejected as evidence by
the Committee. I have no quarrel with the accuracy of
Eandolph's statement, understood in its true contemporary
sense ; " made Earl of Mar," being simply, in the technical lan
guage of the time, " inaugurated Earl of Mar," that is, on the
arrival of the instrument of infeftment or seisin upon the
charter of 23d June 1565 from Aberdeenshire, as formerly ex
plained, previously to which he could not take the title of
Earl according to feudal usage. " With this evidence before
the Committee, it was impossible to come to any other con
clusion than that expressed by the Lord Chancellor, who said
in giving his judgment : ' I am of opinion that it is clearly
made out that the title of Mar which now exists was created
by Queen Mary somewhere between the 28th of July and the
1st of August in the year 1565. It appears to me perfectly
obvious from every part of the evidence before us, that in the
greater part of the month of July and before that' creation
there was no title of Mar in existence.' "
The views in this Letter with respect to the Decreet of
Btinking are expanded and enforced in a letter which I have
since received from Lord Eedesdale, written on the occasion of
my second or Additional Protest, and in which he offers an

64 THE EAELDOM OF MAE. let. vn.
explanation (thus supplementing the letter to the Times) of the
ranking of the Earldom of Mar as from 1457 — the date which
he has now adopted in lieu of 1404, as expressed in his speech
in Committee. I ventured to request Lord Bedesdale to per
mit me to defer replying to his strictures till I should be able
to do so in connection with this present reply to Lord Kellie ;
and he very courteously acceded to this proposition. The
bases upon which Lord Eedesdale and I myself respectively
stand are, in fact, so diametrically opposed that no reply to
this interesting letter would be possible without clearing the
ground by the long process of proof, which I have laid before
the reader in the preceding pages. The Letter — which, with
that to the Times, completes the sum of objection to the
Decreet of Banking in its special relation to the Earldom of
Mar, upon which I stand chaUenged by Lord KeUie — is as
follows; and I shaU trust to the memory of the reader to
supply those running comments on the successive statements
which I myself am unwilUng to make in the case of a letter
addressed personally to myself, grave in its remonstrance, and
written by a man whom I so sincerely respect on public
grounds, and from whom I regret so much to differ on private
and friendly considerations : — " Paek Place,
"St. James's, 2Iay IWi, 1879.
"Deae Loed Cea'wtoed, — I have just seen your protest against
Lord Mar's vote at the last election of a Eepresentative Peer. Having
given a detailed judgment in the Committee of Privileges on the case,
1 request your consideration of the foUowing observations on your
statements. " The origin of the ancient Earldom of Mar is lost in its antiquity.
There is no record of its creation.
" You statfe the law to be in such cases as follows : —
" ' The rule and presumption of succession in Scottish law is in
favour of the heir-general, alike in lands and dignities, where no counter
right can be shown by legal evidence in favour of the heir-male.'
" The Earl of Mansfield in the Sutherland Case thus declared the
law in regard to dignities : —
" ' I take it to be settled, and well settled, that when no instru
ment of creation or limitation of honours appears, the presumption of
law is in favour of the heir-male, always open to be contradicted by
the heir-female upon evidence to the contrary. The presumption in
favour of the heir- male has its foundation in law and in truth.'

SECT. IV. THE EAELDOM OF MAE. 65
" You will excuse me for saying that I consider Lord Mansfield's
opinion on such a point of greater authority than yours.
" The last male heir of the ancient Earldom of Mar died in 1377.
" Since that date no person has ever been acknowledged in Parlia
ment either before or since the Union as holding the ancient Earldom.
This experience of more than five centuries affords conclusive proof
that it is extinct in accordance with the law as laid down by Lord
Mansfield. " Between the death of the last heir-male and the creation of Lord
Erskine in 1565, at least three Earls of Mar were created, proving
that during that period the ancient Earldom was held to be extinct.
" You contend that John Earl of Mar was held by the Commis
sioners for the Decreet of Banking to possess the ancient Earldom,
thus stating his case : —
" ' In virtue of the documents produced by him {i.e. the charter of
Isabella in 1404, and retours by which he was served her nearest law
ful heir), the Earl of Mar was placed on the Eoll immediately after
the Earl of Sutherland and before the Earl of Eothes, the Com
missioners thus assigning him the date of the charter of 1404 as his
proper place of precedency. The ranking of the Earl of Mar in the
Decreet of Banking cannot now be challenged in any Court of the
United Kingdom.'
" I am surprised at your making such a statement, which I will
show by the clearest evidence to be incorrect.
" The Commissioners did not give the Earl of Mar the precedence
of 1404. You are right as to his having been placed before the Earl
of Eothes (created in 1458). Your statement that hewas placed next
below the Earl of Sutherland is misleading. That Earldom did not
iu the Decreet of Banking hold the high precedence allowed to it by
the House of Lords in 1771. Both it and the Earldom of Mar were
placed below the Earldom of Erroll (created in 1452). I defy you to
deny this. How then can you hold that the Commissioners gave the
Earl of Mar the precedence of 1404? Surely you must know that
in all Scotch Peerage lists the date allowed to it has been 1457.
" There can be no doubt that Lord Mar endeavoured to obtain a
report from the Commissioners in favour of his claim to the ancient
Earldom, and it is equally clear that they declined to do anything that
could be held to support it. Befusing to give him a precedence
founded on Isabella's charter of 1404, they thereby declared that
they considered that the ancient Earldom became extinct on the death
of her grandfather, the last heir-male, and that she had not inherited
the peerage-earldom with the territorial comitatus dealt with in that
charter. It is absurd to say that in allowing a precedence of 1467,
they acknowledged the existence of the ancient Earldom. I hold that
the selection of that precedence was to prevent any such assumption.
VOL. II. E

66 THE EAELDOM OF MAE. let. vn.
They took that date because there was then an Earl of Mar in Parlia
ment ; James the Second having before that period so created his
third son, who died without issue in 1479. Thus they connected the
precedence they gave Lord Mar with an Earldom, to which no Erskine
could at any future time make out a claim, and as that peerage was
extinct no one was injured by their so connectmg it. If they had
taken a date when there was no Eaii of Mar in Parliament, they might
have been held to admit that he had a claim to a dormant title,
which could only have been the ancient Earldom. By allowing him
the precedence of 1457, they made him a worthless, because un
founded grant in no way connected with the ancient Earldom, and
this decision of the House of Lords has declared this.
" I shall be much obliged to you for a reply to these observations.
— Relieve me, my dear Lord Crawford, yours very sincerely, " Bedesdale."
The gist of this objection appears to Ue in the fact that Mar
was placed (with Sutherland immediately above him) below
Erroll and Marischal ; and as those earldoms were created about
the middle of the fifteenth century, the Earldom of Mar recog
nised by the Commissioners of 1606 could not, it is inferred,
have been that which depended upon the charter 9 th December
1404 and its confirmation ; and thus the argument for the con
tinuity of the ancient earldom, as restored in 1565, faUs to the
ground, and the Eeport of the Committee for Pri'vUeges is
justified. Placed thus on my defence — what I am called upon to
vindicate being my assertion that the precedence awarded to
the Earldom of Mar was from 1404, with the inferences there
from in favour of the heir-general — I must be allowed to
remind the reader, in the first instance, that I stand upon
Scottish law, with the principles and precedents of centuries
behind me, and practically not in 1879 but in 1606, as the
contemporary of the Commissioners and advocates of that
year, whose cause I havo to plead against this retrospective
attack by men removed nearly three hundred years from the
time and scene of action, and interpreting the conduct of those
who took part in it by rules and principles absolutely unknown
then, and which have grown up like mushrooms in a part of the
United Kingdom which was then, and is stiU in point of law,
a foreign country. I refer here particularly to the assertion
that the documents produced before the Commissioners related

SECT. IV. THE EAELDOM OF MAE. 67
merely to the Comitatus or fief of Mar, as distinguished from
the dignity or title of honour, and thus could carry no weight
in the judgment of the Commissioners towards determination of
the precedency, or in support of the argument founded on that
precedency. This assertion depends entirely on Lord Camden's
rule, acted on in the Cassillis claim and enunciated in 1771,
which is a pure figment of the legal imagination. In the same
sense I protest against the assumption that the decreet of the
Court of Session in 1626 is immaterial to the question, as
deaUng only with the comital fief — an idea which could only
have originated in the mind of a lawyer of the eighteenth
century. The decreet of 1626 puts the stamp of the law, as
has been already abundantly shown, on the whole series of
documents and transactions, legal and illegal, from 1404
downwards, fixing the point, inter alia, that Sir Eobert
Erskine, Earl John's lineal ancestor, became Earl of Mar
in 1435 as heir of the Countess Isabel, a fact which domi
nates the interpretation of the e'vidence adduced before the
Commissioners in 1606, accounts for the exclusion of the
e'vidence aUeged by Lords Chelmsford and Eedesdale to have
been- withheld, and determines the question of precedency,
as deri'ving from 1565 only, or from an earlier date. Had
the doubt suggested been between 1435 and 1404, — had Lord
KeUie or Lord Eedesdale asserted the former date to be correct
and the latter wrong, I should have replied — If you think that
the precedency should be taken from the actual year of the
succession of the Erskine dynasty instead of from the date of
the investiture which reserved their prospective right, I wUl
not contest the possibiUty of it. But there is a world of
difference between either 1404 or 1435 and 1457; aud I shall
now show that I was not in error in fixing upon the earlier
date ; although I may be allowed to say that, whether the pre
cedency awarded was from 1404, or 1435, or 1457,1 cannot see
how this can in the slightest degree affect the argument in
favour of Earl John's inheritance of the earldom held by
Isabel, both fief and dignity, and against the theory of a new
creation in 1565. It must be recollected, moreover, that the
Act of ParUament 29th July 1587 had solemnly recognised
the descent of John Earl of Mar from Bobert Earl of Mar,
the successor of Isabel in the dignity after the death of her

68 THE EAELDOM OF MAE. let. vii.
husband Alexander Stewart in 1435; and that with this
Act before the eyes of the Commissioners, and the relative
documents, it is impossible to suppose that they could have
postponed Mar to ErroU and Marischal, and, I may here add, to
Argyle~on the ground of his dignity not being derived from
the Countess Isabel and from 1404, but from a period not
anterior to 1457.
A preUminary question, suggested rather than positively
asked by Lords Chelmsford and Eedesdale, may be here
answered, viz., Why, if the Earldom of 1565 was the ancient
Earldom inherited by Isabel from her ancestors, did not Earl
John adduce evidence of his descent from the ancient Earls,
and claim a higher precedence than from 1404? The reply
is, that, in the first place, he had actuaUy proved his descent
from the common ancestor of Isabel and himself, viz., Gratney
Earl of Mar, by the evidence upon which the retour of 1588-9
proceeded, which retour was before the Commissioners, legal
evidence of the descent in question, independently of any
necessity for reiterating the proof produced in 1588-9, and to
the sufficiency of which Sir Thomas Craig bears such marked
testimony ; and secondly, that his not having claimed a higher
precedency is no proof that he was not entitled to claim such,
— an argument which Lord Eedesdale himself employed in the
Montrose claim in 1853 with reference to the designation of
the Earl of Glencairn by his lower style of Lord Kilmaurs — at
a time when Lord Bedesdale's was the only voice raised from
time to time in the Committee for Pri'vUeges in support of the
argument of truth.
But I suspect that a further bar existed to his claim for a
precedency higher than 1404, or perhaps 1435, respecting
which I shall speak presently. Some consideration may be
attached also to Earl John's known moderation aud good sense
(as evinced throughout his life), which might naturally suggest
that extreme pretensions might create prejudice against him,
and excite hostility among his brother peers, while under no
circumstances could he (at that time, at least) have obtained
the first seat among the Earls, that being already pre-occupied
by another family under sanctions wdiich the Commissioners
in 1606 were bound to respect, and did respect. It was not,
in fact, till after the creation of the Earl of Angus as Marquess

SECT. IV. THE EAELDOM OF MAE. 69
of Douglas, in 1633, that, as we shall see, — not Earl John, but
Earl John's son, claimed a higher precedency than that awarded
in the Decreet. The date of the ruling infeftment of 1404,
under which Sir Eobert Erskine became Earl of Mar in 1435,
and his descendant John Lord Erskine was restored to the
Earldom in 1565, offered a natural standing-point for the pre
cedency as affirmed in 1606.
I come now to the point of the present objection, viz., that
the postponement in the Decreet of Banking of the Earldom of
Mar to the Earldoms of ErroU and Marischal, the former
created (according to the Auchinleck Chronicle) in 1452, the
latter at some period between 1455 and 1458, supplies a con
tradiction to my view of a precedency from 1404, and the
inference therefrom, which I cannot surmount — a contradiction
fatal to the suggestion of the Earldom of 1565 being the
ancient Earldom. But the noble and learned Lords take no
notice of the simUar discrepancy apparent on the face of the
Decreet, that Argyle, whose creation as Earl dates from 1456-7,
is preferred to Crawford, whose creation as Earl took place, on
equally certain testimony, in 1398. The argument of my
noble antagonists would prove on the same reasoning that the
the Earldom of Crawford must have been created subsequently
to that of Argyle. AU these difficulties are superficial only,
and disappear when we appreciate the principles upon which
the dignities which came before the Commissioners in 1606
behoved to be classed, and the order of precedence and priority
adjusted. Lord Kellie and Lord Bedesdale, applying to pre
cedence the rough and ready measure of mere antiquity of
creation familiar to the nineteenth century, take no notice of
the complexities arising from the pecuUar forms and privileges
existing in the sixteenth and preceding centuries, and which
must be counted and made allowance for before we can pro
perly estimate the principles upon which the ranking proceeded
in the Decreet of 1606. No one familiar with the times wiU
suppose that what I have called the rough and ready process,
which the more philosophic and conciliatory temper of a
modern age has acquiesced in, could be adopted and carried
through in the presence of the feelings which animated the
Scottish nobles in 1606, without due consideration for the
privUeges I have referred to; and the general acquiescence

70 THE EAELDOM OF MAE. let. vii.
with 'which the awards were received at the time is a sufficient
proof that the Commissioners acted with wisdom as well as
knowledge in performing the difficult and delicate task in
trusted to them. At the same time, I must say, that I am
aware of no instance in which justice was sacrificed to expedi
ency in their action unless it be in fixing the precedency of
Mar as from 1404, and not from the date of the common
ancestor of Earl John and Isabel, or even earlier. At the
same time, there may have been a controlling principle in this
case also, as I have already suggested.
The principles I thus lay stress upon are as foUows : —
The general rule laid down was, no doubt, that precedency
should be awarded according to the earliest proof of antiquity
that could be adduced by the peers from their charter-chests ; or, .
when such was not supplied by themselves, from the Great Seal
Eegister or other public records through the Lord Clerk .
Eegister, who was clerk or secretary, moreover, to the Commis
sion, and with the advantage of the testimony of the Lord
Lyon, who was one of the Commissioners. But there were
special exceptions — one special exception, at least, of ancient
date — in which precedency was awarded, or, rather, recognised
and taken for granted, over the heads of other peers. A further
exception existed in the case of peers holding great hereditary
public offices, which were understood to confer precedency
more or less, over other peers. My beUef is that ceremonial
privileges long exercised, although apart from any hereditary
office, were further recognised as giving a prescriptive right to
priority of place. This much stated, I shaU Ulustrate the
operation of these principles, and, at the same time, ¦vindicate
my statement that the precedency of Mar was settled as from
1404 and not 1457, by a criticism of the places assigned by the
Decreet to the first seven of the Earls, 'viz., Angus, Argyle,
Crawford, Erroll, Marischal, Sutherland, and Mar.
1. Angus. — Of this Earl it is said, he " compeirit not ;" but
a charter was found in the Great S6al Eegister, by which it
appeared that his ancestor was Earl of Angus on the 9th
November 1398. Sutherland appeared and produced a charter
proving that William Earl of Sutherland was Earl in 1347, which
would have given him the higher place. But by an ancient
grant of uncertain date and not on record, recognised how-

SECT. IV. THE EAELDOM OF MAE. 71
ever by James vi. in 1599, and confirmed by a charter under
the Great Seal in 1602, the first place and vote in ParUament
had been granted to the Earls of Angus ; and the right thus
vested in his house was formally resigned by William eleventh
Earl of Angus to Charles I. on the 14th June 1633, in considera
tion of advancement to the rank of Marquess of Douglas. When
dukes and marquesses were introduced into Scotland the ques
tion had arisen, whether the grant of precedency and first vote
over all the peers in the person of the Earl of Angus could give
the precedency over those of higher rank ; and Sir John Skene,
then Lord Clerk Eegister (afterwards one of the Commissioners
of 1606), gave it as his opinion, being consulted by the family
on the general case, whether a duke or marquess may first sit
and vote in Council, Convention, and Parliament before an earl
who is speciaUy infeft by his Majesty in the first place and vote
of ParUament, CouncU, and Convention," as • follows — " The
answer is negative, especially if the Earl have an authentic
charter to that effect of the Sovereign Prince, and have been
possessed therein, by himself and his forbears (ancestors) of a
lang time drawn to a prescription of years," — Sir John here, as
observed by Mr. Eiddell, admitting prescription in peerage pre
cedences. But Angus either limited his claim to be first of the
earls, or that rank only was allowed him by the Commissioners.
Independently of this priority of vote, and closely connected
with the position of first Peer of the realm (as we should now
say, below the royal family), the right of bearing the Crown,
the first of the three " honours," or insignia of Scottish royalty,
was vested hereditarily in the Earls of Angus, and always
exercised when they were present on great ceremonial occa
sions ; or, if an exception took place, as when the Duke of Len
nox bore the Crown in the riding or procession to Parliament
in June 1592, the Earl protested in defence of his right in Par
liament, to which the King replied that the act should not be
prejudicial " to the said Earl, his rights, privileges, and hon
ours " which he and his ancestors had to the " first place in first
sitting and voting in all Parliaments, etc. ; first place and
leading of vanguard in battles, and bearing the Cro'wn." All
this was famUiar to the Commissioners in 1606, and was evi
dently acted upon in assigning the precedency to Angus as first
of the Earls, although they subordinated him to the Duke of

72 THE EAELDOM OF MAE. let. vn.
Lennox and the then two Marquesses of Scotland, HamUton and
Huntly ; and this in the presence of, and it may be presumed
in overrulement of the opinion of Sir John Skene above
noticed; in which I cannot doubt that they were right. The
ranking awarded was thus, for the reasons assigned, exceptional
to the strict rule of priority of creation, both Sutherland and
Mar being older. The reader has already observed that the
words " precedency and priority " are used in the Decreet, not,
as I apprehend, tautologicaUy, but in order to distinguish pre
cedency from relative antiquity from priority of place grounded
on exceptions such as that just signaUsed.
2. Argyle. — The Earl made no compearance in 1606. This
Earldom dated, as has been stated, from 1457. Cra'wford
proved the existence of his Earldom in 1398; Sutherland in
1347; and Mar (pace Lord Eedesdale) in 1404. Sutherland
and Crawford ought to have had precedence over Argyle by
the ordinary rule. But Argyle held the great hereditary
office of Master of the Household and Justiciary-General,
the highest, with the exception of the High Stewardship, which
had been vested in the Crown after the accession of the Stewarts
to the throne. Moreover, the Earls of Argyle, probably from
this cause, had been wont to bear the sceptre, the second of
the " honours," at the ridings of the Scottish Parliament, and
on all ceremonial occasions, thus inferring, as I conceive, a
prescriptive right of ceremonial precedency. Ai'gyle was thus
ranked second to Angus, and immediately above Crawford,
although the latter was chronologicaUy fifty-nine years his
senior. No protest was ever made by any Earl of Crawford
against Argyle's anteriority of precedence. It was first caUed
in question by Sutherland in 1691.
3. Crawford. — David Earl of Crawford appeared by his
procurator, and produced a charter thus described in the " De
Jure Prselationis : " — " Ane infeftment given be the King
Bobert dilecto fratri suo Davidi de Lindsay Comiti de Craw-
furd of the barony of Crafurd cum quatuor punctis coronae et
in Uberam regalitatem 10 Decembris anno nono regni ejus," i.e.
1398, "in rotulo cartarum Boberti 3^, 13." Sutherland, pro
ducing proof from 1347, ought to have had the precedence on
the strict rule of antiquity of creation ; but Crawford was pre
ferred. There is more difficulty in accounting for this priority

SECT. IV. THE EAELDOM OF MAE. 73
than in the other cases before us. There was no great heredi
tary public office in the house of Crawford, such as that of
High Justiciary, Constable, or Marshal. Mr. BiddeU, who
indicated the rankings of Angus and Argyle on the ground of
the exceptions above indicated, looked upon the ranking of
Crawford as an anomaly; and it was protested against and
attempted to be reduced by Sutherland, as is weU known,
subsequently to the Eestoration. But, to use Mr. EiddeU's
favourite proverb, one swallow does not (under any circum
stances) make a spring ; and, on the contrary, the presumption
must be that the Commissioners acted on some sound and
recognised principle in assigning Crawford the precedence
above Sutherland and Mar, precisely as they unquestionably
did in assigning precedence to Argyle above Crawford. There
are reasons which, to my own mind at least, account for the
preference shown in his favour. I may clear the ground, in
the first place (in the presence of recent imputations, and
without any disrespect to the memory of the Commissioners),
by observing that the precedency granted was not owing to
any exceptional influence exerted either by Crawford himself
or on his behalf ; for the then Earl of Crawford (not my lineal
ancestor) is known in family histories as the " Prodigal Earl,"
or "comes incarceratus," having been imprisoned for life in
Edinburgh Castle at the instance of his next of kin, the heirs
to the succession, as the result of a family councU, in order to
prevent his dilapidating the Comitatus by alienation of its
dependencies and revenues — detained, be it understood, not as
a criminal, nor as a debtor, nor as a lunatic, but as a spender
and waster to the injury of contingent interests, executing the
regular deeds and instruments incidental to his tenure of the
fiefs, but otherwise not a free agent. Two considerations may
have been influential with the Commissioners in 1606 towards
assigning precedency to the Earldom of Crawford below
Argyle, the High Justiciary, but above Sutherland and Mar.
I merely suggest these considerations, without affirming them.
The one is the fact that the Earls of Crawford appear from
time to time as carrying the sword, the third of the " honours,"
in fuU ceremonies, ridings of the Parliament, or the like, in
such manner as to induce the impression that while Angus
bore the crown and Argyle the sceptre, the first by hereditary

74 THE EAELDOM OF MAE. let. vn.
privUege, the second by ceremonial right, whenever present,
Crawford had a preference before others to bear the sword, or,
in the absence of those entitled to prior dignity, the sceptre,
or even the crown. At the riding of ParUament, for example,
in 1565, Crawford bore the sword, — Lord Gordon, as represent
ing his father Huntly, the Chancellor, bearing the crown, and
Bothwell, then in the zenith of his power, the sceptre ; whUe,
to say nothing of Morton, the Earl Marischal, Athole, Lennox,
and others, Sutherland was present, who, in point of mere
antiquity, would have enjoyed the pri-vUege in his stead. The
Earls of Sutherland had never attended the Parliament since
the days of Eobert Bruce tiU late in the fifteenth century ; and
this may possibly have induced a prescriptive right of priority
against him in such ceremonials in favour of Crawford, which
would have had weight given to it by the Commissioners in
1606. The second consideration here suggested is grounded on
my strong persuasion (whatever its worth may be) that a know
ledge or belief that the Earls of Crawford were rightly entitled
to the Dukedom of Montrose, created in 1488, may have influ
enced the preference to the effect of placing Cra'wford as high
in the Ust of Earls as possible, consistently with the special
privilege of Angus and the prestige from the office of High
Justiciary vested in Argyle. It is to be observed that the
productions in favour of the Earls are followed in the "De
Jure Prselationis," or schedule of evidence, by notices of the
creations of the Dukedoms of Albany, Orkney, Lennox, and
Montrose, the latter under the original charter by James ill.,
18th May 1488, while that of Boss, created in January 1487-8,
is omitted, — a significant circumstance. These notices precede
the proofs for the " Lords;" and it is clear that they formed part
of the evidence doubtless produced by the Lord Clerk Eegister
or Lyon, for the guidance of the Commissioners. There is no
intimation of any revocation or limitation of the Dukedom of
Montrose for life ; whereas the Dukedom of Boss, which became
practically extinguished by the entrance of the Duke into
holy orders is, as I have stated, omitted. It was not tiU the
great struggle for precedency between the Earls of Glencau'n
and Eglinton in 1637-1648 that Eglinton, whose interest it was
to fortify the effect of the celebrated Act Bescissory, aUeged
that that Act had cut do'wn the original jMontrose charter, in

SECT. IV, THE EAELDOM OF MAE. 75
order to prove that it had also cut down the original charter of
the Earldom of Glencairn — which however the Court, of Session
decided by their judgment in 1648 had not been so cut down,
but was valid, and gave Glencairn the precedency which he
now holds. But to the Commissioners of 1606 it must have
been apparent, if their attention was directed to the question
— and Crawford appeared by his procurator, though not in
person — that the Act Bescissory was simply an act of revoca
tion analogous to those with which they were perfectly
famiUar, passed at the accession or majority of each successive
Sovereign for the purpose of reclaiming to the Crown the an
nexed properties of the Crown which might have been granted
away by the king's predecessors or during his own minority —
the series of alienated subjects reclaimed or declared null by
the Act Bescissory of 1488, being enumerated in precisely the
same order as in the sister Acts ; while the final clause, " creation
of new dignities," under which it was maintained by Eglinton
in 1488, and held by the House of Lords in 1853, that the
personal dignity of Duke of Montrose was annuUed, related
merely to the concession of regaUties, which, as being prejudi
cial to the power and privUege of the Sovereign, had been
prohibited by Act of Parliament in 1493, unless with consent
of Parliament. The Dukedom of Montrose, created by James
III., as already stated, at the crisis of his fate — in strict
parallelism, as I have also shown, with the Marquesate of
Montrose, granted by Charles i. in 1647 — was founded upon
a transmutation or conversion of the Earldom of Crawford into
the Dukedom of Montrose, with the addition of certain fiefs and
revenue customs which were annexed property of the Crown, in
fuU and free regality — the consent or confirmation of Parliament
not having been obtained to the aUenation, although the King
doubtless expected to be able to obtain it thereafter. The Act
Bescissory, as was abundantly proved in 1853, never took effect
on these iUegal concessions ; but by a later enactment, they
were effectuaUy reclaimed, and then regranted to the Duke
for life, with consent of Parliament, but in fuU recognition of
the title of dignity, inasmuch as he was created Duke of
Montrose de novo by a special Act of the King, James iv., with
advice of Parliament, on the preceding day, the 1 8th Septem
ber 1489, but not proceeding on any resignation of the original

76 THE EAELDOM OF MAE. let. vii.
dignity, which could alone have denuded him thereof; and
without the slightest limitation on the descent of the dignity,
the object of the regrant being expressly to perpetuate the
descent of the Earldom, transmuted into a Dukedom, with its
hereditary estates, constituting the Comitatus of Crawford, but
without the fiefs, rights, and privileges which have been re
claimed to the Crown as granted without consent of ParUa
ment, and thus without legal warrant ab initio ; — which never
theless they allowed him for his lifetime, as said is. The
reasons why it was inexpedient and practicaUy impossible for
the Duke's son and his heirs to assume the dignity after the
Duke's death have been shown elsewhere; but the original
grant in 1488 stood on the Great Seal Eegister, the grant de
novo on the Books of ParUament, and the grant of the fiefs for
life (in a very abbreviated form) by a memorandum interpo
lated, but contemporaneously so, in the Great Seal Eegister,
all of which were in the hands of the Lord Clerk Eegister and
before the Commissioners of 1606, while the original grant
was brought speciaUy before them among the productions as
evidence, as above shown. I think that it is not at aU improb
able that this dormant right weighed with the Commissioners
in settling Cra'wford's precedency as high on the roU as
possible, next to Angus and Argyle. But this is not aU. As
I have remarked, in the case of the registration of the arms of
" Erskine umquhile Earl of Mar," in the Armorial drawn up
by Sir David Lindsay of the Mount in 1542, that that
amounted to an official recognition of the Earldom of Mar as
having been lawfully in Bobert Earl of Mar as the heir of
the Countess Isabel in 1438, although the Erskines were sub
sequently deprived of it by the action of the Crown and other
wise, thus rendering Eobert practicaUy the " umquhUe " or late
Earl ; so the fact that the coat of " Lindsay Duke of Montrose "
is blazoned in the same Armorial among the Dukes, but without
any qualification of " umquhile," notwithstanding the non-
assumption by later Lindsays, the Duke's successors, equaUy
shows that in the opinion of that great official, the highest
authority in Scottish heraldry, the Earl of Crawford in 1542,
and necessarily in 1606, was legally Duke of Montrose, and
thus entitled to a higher dignity than that of Earl. The
Lord Lyon King, actually present as one of the Commissioners,

SECT. IV. THE EAELDOM OF MAE. 77
was the nephew and namesake of the Sir David Lindsay of
1542, and the heir of his traditions; and his voice would
naturaUy be to the same effect. Both the preceding considera
tions, the ceremonial privilege and the dormant and latent
right to a higher dignity, the highest in Scotland, may, I think,
be suggested with considerable force as an explanation of
Crawford's precedency above Sutherland, although the Craw
ford charter is only of 1398, and that of Sutherland of 1347.
Lord Selborne and Lord KeUie have suggested that Earl
John may have enjoyed a precedency above 1565 by a special
grant of James vi. ; and the suggestion would be equally
available in vindication of Crawford's precedency above
Sutherland. But in both cases the grants would have been
on record, or at least testified to in some manner or other,
as in the case of Angus; whereas neither in the case of
Mar nor Crawford is there the sUghtest intimation of such.
It is a whoUy modern hypothesis. In fine, as I observed at
the commencement, the presumption is in favour of the Com
missioners having assigned the third place among the Earls
to Crawford on some sufficient consideration, as in the other
six cases we have now been deaUng with, and the onus lies
on our opponent to prove the contrary. If wrong, it would be
the exception that proves the rule.
4. Erroll. — ErroU, the hereditary Lord High Constable of
Scotland, and ex officio one of the Commissioners, produced
evidence from which it was shown that his ancestor WUUam
Lord Hay, the High Constable, must have been created an Earl
between 1451 and 1455. The actual year of creation was,
according to the contemporary " Auchinleck Chronicle " (our
best authority for the events of the time), 1452. The gi-eat
office of Constable had been hereditary in the family of De la
Haye, or Hay, from the days of King Eobert Bruce, and it is
still held by their present representative. It had long been
recognised that the office of Constable gave the Earl of ErroU a
certain precedence above the date of his Earldom; and in 1585
a fierce contention took place in ParUament between Francis
Stewart, Earl of BothweU, who held the hereditary office of
High Admiral, and Erroll as Lord High Constable ; ErroU pro
testing that in the days of the Eegent Mary of Guise, the
Constable and Admiral had contended " for the prioritie of thair

78 THE EAELDOM OF MAE. let. vii.
voit and place in Parliament, ... at the quhilk tyme it wes
concludit that the Constable sould first voit in Parliament
notwithstanding that he satt not amang the rest of the erllis,
bot for doing of his office in Parliament satt laich (low) down
in the Parliament Hons; and thairfoir, except the Kingis
Majestie and Estaittes restorit him to the ancient degrie and
prioritie in voiting quhilk his predecessoris had, refusit to voit
in this present Parliament." ^ ErroU's office in ParUament as
Constable was, as Mr. Eiddell remarks, to keep order 'within
the walls of ParUament, as the office of the Earl Marischal was
to keep order without the waUs ; and this accounted for the
particular seat occupied by ErroU " laich down " in the haU of
assembly of Parliament. As between Sutherland producing
evidence from 1347 and Mar from 1404, both Sutherland and
Mar would have been entitled to precedency over ErroU, an
Earl only from 1452; but the precedency, or rather, in strict
language, the " priority " was conceded to ErroU, evidently in
consideration of his office.
5. Marischal. — The Earl Marischal, one of the Commis
sioners ex officio, like Erroll, produced nothing on his own
behalf in proof of his creation as Earl ; but proof was produced
" ex registro '' by the Clerk Eegister that his ancestor,
" Bobertus MarischaUus Scotise, mUes," so designated in 1426,
appears as "dominus de Keith" in 1451, and "comes Maris
chaUus " in 1 458. The office of Marischal, or Marshal, was next
in grade to that of Constable. " The Court of Session," says
Mr. BiddeU, "the second day of February 1682, decided that
the hereditary office of Marshal was of the nature of a peerage,
and not in commercio."'^ Sutherland and Mar were of earUer
creation as Earls, and would thus have been entitled to higher
precedence; but the high hereditary office held by the Earl
Marischal was understood, as in the case of Erroll, to deter
mine " priority " in his favour. I may observe here that the
fact that Crawford was interposed between the High Justiciary
as above and the Lord High Constable and the Earl Marischal
below him constitutes a further reason for belief that some
special considerations such as those I have above suggested must
have existed for determining that high " priority " in his favour.
' Acta of the Parliaments of Scotland, iii. 3/5.
^ RiddeU's Peerage and Oonsistorial Law, p. 24.

sect. iv. the EAELDOM OF MAE. 79
6. Sutherland. — The Earl of Sutherland appeared and pro
duced the weU-known charter of David ii. to WiUiam Earl of
Sutherland and Margaret his wife, the King's sister, " of the
barony of Cluny lyand within the shirreffdom of Aberdeen,
4 of November, the 17 year of the reign of the said King," i.e.
1347, — proving that his ancestor was Earl in that year. This
would have given him the first place over all the Earls previ
ously mentioned, but for the special causes already stated,
there being neither great hereditary office nor ceremonial
prescription to weigh in his favour. Lastly, with respect to —
7. Mar. — John Earl of Mar produced the evidence already
noticed, commencing with the charter in favour of Isabel
Countess of Mar and Garioch 9th December 1404, and ending
with "ane extract of the retoures of the date 20 Martu 1588"
{i.e. 1588-9), " whereby John Earl of Mar is served neirest and
lawful aire to the said Dame Isobel Douglas, Countess of Mar."
He was ranked second to Sutherland in consideration of the
earlier date, 1347, proved by Sutherland, — he was postponed to
the Earls already mentioned for the same causes as Sutherland.
Lord KeUie suggests that "the Commissioners may have
ranked Sutherland according to a supposed new creation which
has since been declared not to have taken place," i.e. in 1513,
when Sir Eobert Gordon in 1771 contended that Adam Gordon,
husband of EUzabeth Countess of Sutherland in her own right,
must have been created Earl of Sutherland by a lost charter,
the presumption as to which was in favour of heirs-male. But
this is negatived by the fact that the precedency awarded dates,
even by Lord Kellie's and Lord Bedesdale's admission, from
long before 1513.
The result of this enumeration tends, I think, to prove that
the ranking of the first seven Earls on the Decreet of Banking,
including the Earldom of Mar, proceeded upon well-ascertained
and connected principles, — Angus standing first under an
ancient grant and privUege — Argyle second,' as hereditary Lord
High Justiciary — Crawford third ; I wiU not venture to affirm
more than presumably on good grounds, inasmuch as all the
others stand so — ErroU fourth, as hereditary Constable, and
Marischal fifth, as hereditary Marischal; these five holding
evidently exceptional positions of " priority " totally independ
ent of mere precedency through antiquity of creation. Next

80 THE EAELDOM OF MAE. ' let. vii.
to these five privileged dignities we have a new category, in
which the ranking depended on the simple and unquestionable
plea of antiquity as proved by evidence produced — Sutherland
holding the first rank in this category, claiming from 1347, and
recei'ving precedence accordingly — then Mar, seventh on the
list, and second in the same boat with Sutherland, claiming
from 1404, and receiving place accordingly. Next to Mar
would have come Menteith, with a precedency from 1427, but
he only adduced proof from 1466; and Eothes therefore re
ceived precedence in virtue of proof bearing date 1459. Follow
ing upon these come Eglinton, Montrose, CassUUs, and Caithness,
all four preferred over Glencairn through no faiUt (as has been
sho'wn) of the Commissioners; and after them Buchan, the
neglect of whose custodiers, the tenant being an heiress, equaUy
occasioned misplacement, although to be rectified by the Court
of Session in 1628, as the Glencairn misplacement was in 1648.
A space of above fifty years then elapses, during which no
creation of an Earldom had survived down to 1606. But I
need not travel further down the Ust.
What I have proved may be sufficient to vindicate my
assertion that the Mar precedency is from 1404 in the Decreet
of Banking, and to dispel the discredit sought to be attached to
the Decreet as an " imperfect " and " erroneous " document so
far as the leading seven Earls are concerned. The argument
in my Protest, therefore, I submit holds good, that, if the Mar
precedency stands from 1404, the dignity upon which it is
founded could not possibly be the new and personal dignity
affirmed by the House of Lords to have been created in 1565,
not by the existing charter of restitution of the Comitatus, but
by a lost charter or patent. If this last was the case, why was
it not produced ? Why is it not in the " De Jure Prselationis " ?
I do not think Lord Bedesdale's theory of its ha'ving been
withheld in 1606, and destroyed subsequently, affords an answer
to this question.
With respect to Lord Bedesdale's assertion in lus letter to
myself that the Commissioners placed John Earl of Mar in the
place of an Earl of Mar not of the Erskine blood, but neces
sarUy one of the princes, younger sons of the Scottish Kings,
who sat in Parliament in 1457, and this with the view of ex
cluding any idea of a connection between the Earldom of 1565

SECT. IV. THB EAELDOM OF MAE. 81
and the ancient feudal Earldom, I have to reply that the Earl
of Mar who. Lord Eedesdale says, was so created by James ii.
before 1457, and who sat in ParUament in that year, was, as he
also states, John Stewart, James ii.'s third son, who died
without issue in 1479. In his speech in Committee, Lord
Eedesdale fixes the date of the creation in 1460, his authority
being, I presume, a statement to that effect in Wood's edition
of " Douglas's Peerage." But at whatever date the creation took
place, John could not have sat in Parliament in 1457, as he
could not have been more than five years old in that year, or
than eight in 1460, if the creation be referred to that year;
whUe if in 1460, the ranking assigned to Mar on Lord Bedes
dale's hypothesis would have been posterior to Eothes, who
produced evidence from 1459.^ But the fact is that there is no
notice of any Earl of Mar sitting in Parliament either in 1457
or 1460, or at any date between 1429 and 1476. Lord Eedes
dale probably overlooked these considerations when developing
the argument against the perpetuation of the ancient territorial
Earldom in the line of the Erskines, Earls of Mar ut supra.
I wiU only remark, in conclusion, that such an arbitrary grant
of precedence over the heads of the Earls created between
1457 and 1565 would not have been justified by the terms of
the Commission of Banking, inasmuch as it would have pro
ceeded neither on the " priority " of privilege nor the " pre
cedency " in point of antiquity of creation.
As I observed, before commencing this discussion respecting
the ranking of Mar as from 1404 or 1457, the question is sub
sidiary to the more important point, whether the Commissioners
were induced by ignorance of the truth, the result of fraudu
lent action on the part of John Earl of Mar, to assign a pre
cedency to Mar earUer by a century than the true date of the
creation, 1565. This question, too, has been answered, I think,
satisfactorily in the negative.
Lord KeUie, it wUl be seen, brings the Sutherland and Mar
cases into comparison and paralleUsm. I may suggest a present
1 [Evidence exists iu the Exchequer Rolls that John Earl of Mar -was
fourth son of James ii. ; and as James m. was born ou 10th July 1451 (see
Mr. Dickson's Preface to Accounts of the High Treasurers of Scotland, vol. i.
p. xxvii., note), John could hardly have been born before 1456. The Ex
chequer accounts further indicate that he was made Earl of Mar in his
infancy, in 1458.]
VOL. II. F

82 THE EAELDOM OF MAE. let. viu
point of identity between them, in that Lord KeUie and Sir
Eobert Gordon have equally attempted to further their respec
tive causes by casting the odium of dishonest and dishonour
able dealing upon their respective ancestors, thus defiling their
fathers' graves. Lord Chelmsford's, and still more Lord Bedes
dale's imputations against John Earl of Mar, are simply the
development of Lord Kellie's previous assertions in his Case
and by his counsel at the bar. I protest against the characters
of honourable men being thus recklessly aspersed after the
lapse of centiiries, purely upon hypothesis.
(3.) I have still to notice the third of the special objections
arrayed against the Decreet of Banking and the Union EoU,
in the shape of Lord Chelmsford's argument, grounded on the
statement that six Earls finding themselves prejudiced by
being ranked below Mar in the Decreet, " prosecuted an action
of reduction of the retour of the 26th March 1588-9," part (it
will be remembered) of the productions upon which the De
creet proceeded, and thus in accordance with the proviso " for
remeid of law " embodied in the Decreet. Lord KeUie presses
this aUeged fact against me in his Letter, and I may interpose
his words here : — " Lord Crawford states that no peer of an
earlier creation than 1565 protested against the precedency
given to Mar in the Decreet of Banking. This is a mistake.
In the Minutes of Evidence in the Mar case it is proved that
the Earls of Menteith, Morton, Montrose, Eglinton, Glencairn,
and Cassillis not only protested but instituted proceedings for
the reduction of that precedency. Although Lord Crawford
has overlooked the evidence of that action, it did not escape
the attention of Lord Chelmsford, who aUudes to it in his
judgment." Proceeding with my citation — or, rather, re-citation
from Lord Chelmsford's speech, — " In searching," the noble
and learned Lord said, "through the voluminous evidence, I
have not been able to find any account of the result of this
action of reduction ; which however shows that the claim of pre
cedence by the Earl of Mar founded upon the retour of 1588
was not suffered to go unchallenged." Lord Chelmsford is right
in the general position that the six Earls objected to—
" challenged " is too strong a word — the precedency on the
occasion specified ; but the remainder of his statement, and,
consequently his own and Lord KeUie's inferences, proceed upon

SECT. IV. THE EAELDOM OF MAE. 83
error. The chaUenge, if so quaUfied, was not a legal challenge
valid in itself, or such as could be entertained by the Court of
Session. There was no such action of reduction as Lord
Chelmsford imagines.
With a view to precision, I must restate briefly the circum
stances of the proceedings in 1622. An action was brought
before the Court of Session by the officers of the Crown, the
Elphinstones, and a great number of other proprietors within the
Earldom of Mar, for the purpose of reducing, not one but both
the retours of 1588-9, — the general retour serving Earl John
heir in blood to the Countess Isabel, and the special retour
serving him heir to Isabel in Strathdee and Cromar. The ob
ject of the Elphinstones was to vindicate and retain the grants
of lands pertaining to the Earldom made to them by the preceding
kings of Scotland during the usurpation inviolate. The six Earls
associated themselves with the other pursuers in the summons
in the following words : — " And als at the instance of Williame
Erie of Monteith, WilUame Erie of Mortoun, John Erie of Mon-
troise, Alexander Erie of Eglintoun, James Erie of Glencarne,
John Erie of CassUUs, quha be the service undermentionat, be
the quhilkis the said John Erie of Mar is servit as narrest and
lawful air to the said umquhUe Issobel Dowglas of Mar, are
hurt and prejudgeit in their honouris and digniteis in our
Soverane Lords ParUamentis and publict conventiones;"^ — the
retour referred to here being the general one, not connected
with lands, which had been adduced by Earl John in 1606, and
upon which, in fact, his claim to precedence depended. There
is no doubt that the six Earls deny the right of Earl John to
the precedency over them as grounded on the general retour
in question ; and Lord Chelmsford's comment on the fact is
equally temperate and candid ; but his mistake lay in imagin
ing that the intervention of the six Earls in the manner shown
constituted an " action of reduction " of the Decreet, or even a
legal challenge, which could only have been instituted and
" prosecuted " in accordance with the forms and conditions pro
vided for by the Decreet, and observed in aU other instances
of cases of precedency, such as that of Glencairn in 1610, of
EgUnton in 1617, of Buchan in 1628, of Eglinton v. Glencairn
in 1 637-48, and others. A claim for rectification of the Decreet
^ Minutes of Evidence, p. 692 ; supra, vol. i. p. 405.

84 THE EAELDOM OF MAE. let. vii.
of Banking could not be prosecuted by a side-'wind, nor without
special summons and tabling of the Decreet sought to be re
duced, and of the reasons for reduction, etc. etc. As I have
already stated, the process of 1622 shriveUed up and coUapsed
in regard alike to the general and special retours of 1588-9, and
is no more heard of, either as regards the substantive territorial
rights sought by the Elphinstones and others to be preserved,
or the rights of precedency above Mar sought by the six Earls
to be impugned ; and thus the action (such as it was) by the
six Earls remained a brutum fulmen, specially characterised as
an empty protest by the fact that they never ventured to renew
it subsequently. Such renewal would, in fact, have been
impossible subsequently to the great decreet of the Court
of Session in 1626, which affirmed the validity of the retour
of 1588-9, and by such affirmation denounced the chaUenge
of the six Earls in 1622 as a vox et pr acter ea nihil. Lord
Eedesdale, I may add, does not notice this supposed " action of
reduction " and challenge.
But I cannot dismiss this matter of the six Earls without
pointing out the fact — which would be a valuable argument
for the Decreet of Banking and the heir-general of Mar, were
not proof so pointed and so overwhelming as to render it
almost superfluous — that the " chaUenge " of the general retour
of 1588-9 as the foundation-stone of the status of precedency
awarded by the Decreet of Banking could only be based on the
fact of Earl John deriving his right to the earldom from the
Countess Isabel, the right to the title, honour, and precedency
under the general retour being identical with the right to the
estates under the special retour, both being thus associated in
a common denunciation. It is evident that if the Earldom of
Mar held by Earl John in 1606 had been a new creation in
1565, and had been ranked too high, the six Earls would have
called for any special grant of precedence or other document
on which that precedency proceeded for the purpose of cassing
and annuUing it ; but to call for the general retour amounted
to an acknowledgment that if that retour stood — as it does
stand under the decreet of 1626 — Earl John was Earl of Mar
as next lawful heir of blood to Isabel, proximately under the
ruling charter of 9th December 1404, confirmed by Eobert III.,
and ultimately through descent from the common ancestor.

SECT. IV. THE EAELDOM OF MAE. 85
Gratney Earl of Mar, in the time of Bobert Bruce. I do not
think that I have overvalued this unlooked-for evidence in
favour of the Decreet of Banking and of the heir-general, and
it affords a complete answer to Lord Bedesdale's theory of a
"peerage-earldom" distinct from the fief, and knocks Lord
Camden's law on the head.
I suspect indeed that the introduction of the six Earls into
the process of 1622 was at the instance of the Elphinstones, in
order to swell the ranks of opposition to the dreaded retours
of 1588-9 ; inasmuch as their names are inserted at haphazard,
— Menteith before Morton, Montrose before Eglinton, Glencairn
before CassiUis, in each instance at variance with the order
prescribed in the Decreet of Banking, and which the peers thus
misplaced would hardly have permitted, lest it vitiated their
remonstrance ; while Eothes and Buchan, equaUy postponed
if the Mar creation was in 1565, are not introduced at all.
Moreover the six Earls were not represented by any special
counsel charged with advocacy of their special remonstrance,
but, along with Lord Elphinstone and his son, and all the other
parties interested in territorial opposition, by Thomas Nicolson
and Lewis Stewart. My impression is, that the " challenge "
of the precedency under the retour, considered as the founda
tion of the Decreet of Banking, was virtually by the Elphin
stones for tbe purpose of embarrassing Earl John ; but if so, the
acknowledgment thereby that the Earldom of Mar was restored,
and not newly created, in 1565, proceeds from the Elphinstones
themselves, and from that very Alexander Lord Elphinstone
who, as I have shown, was one of the Commissioners of 1606,
and certainly knew what then took place, and what he was
about in 1622.
Lord Chelmsford proceeds to connect the five retours ob
tained by Earl John in 1628 with a desire on his part to fortify
the supposed deficiencies of the proof brought forward in
support of his precedency in 1606. "The proceedings of the
six Earls to reduce the retour of 1588, by which the Earl of
Mar was served heir to Isabel Douglas, Countess of Mar, seems
to have stimulated his activity to obtain some further support
to his claim of precedence. Accordingly, on the 22d January
1628, he procured no fewer than five retours finding him heir
respectively to Donald Earl of Mar, to Gratney Earl of Mar, to

86 THE EAELDOM OF MAE. let. vii.
Donald Earl of Mar, the son of Gratney, to Thomas Earl of
Mar, the son of Donald, and to Margaret, the sister of Thomas
and mother of Isabella." I need not repeat here what I have
already proved, viz., that these retours were obtained by Earl
John as the necessary preliminary step to the process against
the tenants of Mar and Garioch, calUng upon them to pro
duce and establish their rights to property or superiority as
against his own claims — the final process in the recovery of
the Mar estates, decided by the Court of Session in 1635.
It is not without significance, however, and not merely in
itself, but in reference to the Decreet of Banking, that — not
Earl John, but his successor of the same name, protested in
Barliament on the 31st August 1639 for higher precedency
than that awarded by the Decreet of Banking, thus initiating
a series of protests which have been reiterated in 1661, 1681,
1689, 1696, 1698, 1702, 1703, 1704, and 1705, and subse
quently to the reversal in 1824 of the attainder incurred in
1715, in 1824, 1825, 1826, 1830, 1833, 1837, and 1847, at the
elections of Scottish Eepresentative Peers. The original funda
mental protest is to the effect " that his ryding or siting in this
present Parliament do noe ways prejudge him of that place and
precedencie in Parliament and other privatt and publict meit-
ingis due to him be his rightis and infeftmentis ; but that it shaU
be laufuU to him to acclame the same by virtue of his right as
accordis of the law,"^ i.e. according to the signification of those
words, more famUiar in Scotland than in England, before the
supreme civil tribunal, the Court of Session. Sutherland and
Mar protested each to the same effect, in general terms, in
1661. In 1681 Mar protested against Sutherland having place
before him, — in 1689, "that the caUing of the said Earle"
(meaning the Earl of Argyll), " or any other Earles befor him,
might not prejudge his right of precedency befor the said Earle,
or any one or all of the said Earles called befor him," etc. etc.
etc.^ Viewed by the light of the evidence now before the
reader, it is impossible to hold that this claim of precedency
was based upon withholding and suppression, and still less on
destruction of evidence. Nor was any such imputation ever
hinted at, or a doubt expressed of tlie_succession of the Earldom
' Acts of the P.-vrliaments of Scotland, v. p. 254.
^ Ibid. ix. p. 5.

SECT. IV. THE EAELDOM OF MAE. 87
being to heirs-general, tiU our own days, in the pleadings for
Lord Kellie.
I have stated that, not the Earl John of 1606, but his suc
cessor, lodged the first protest for higher precedency in 1639.
This also is significant. The Earl of Angus, who held the first
place among the Earls, resigned his right to the first vote in
Parliament, which his famUy had always claimed, on his crea
tion as Marquess of Douglas in 1633. Earl John was alive ;
and had he been intent on advancing his precedency, as Lord
Chelmsford assumes, he might then have been expected to do
so. But he left it to his successor to move in the matter.
I submit therefore, in reply to this second category of
special objections against the accuracy of the Decreet of Bank-
iug in 1606, that the Decreet was not open to disaUowance by
the House of Lords in 1875 on the grounds aUeged, inasmuch
as no documentary or historical evidence essential to the
adjudication of the Commissioners upon the precedency ques
tion was withheld from the Commissioners in 1606; the lost
charter or patent of 1565 conferring a personal peerage, of
which the destination is presumed to have been to heirs-male
of the body according to Lord Mansfield's law, never existed ;
and the ranking of 1606 was accurate according to the evidence,
whether before the Commissioners in 1606 or the House of
Lords in 1875,— the fact foUowing never to be forgotten, that
whether or not a charter of the Earldom as a " peerage-earl
dom" was granted by Queen Mary in 1565, the limitation of
that charter, the charter being lost, must be presumed to have
been in favour of heirs-general, as urged by the officers of the
Crown in 1874, in conformity with the ancient and unva:rying
presumption of Scottish law, although disregarded by the Com
mittee for Privileges and the House.
I have not yet noticed certain observations by Lord Eedes
dale and Lord KelUe on the case of the Earldom of Sutherland
as compared with that of Mar in reference to the Decreet of
Banking, and which I mentioned at the close of my reduction
of their objections into the categorical summary given supra.
Lord Bedesdale, in the letter with which he lately honoured
me, objects that the statement in my Protest that "Mar" was
placed next below the Earl of Sutherland in the Decreet of

88 THE EAELDOM OF MAE. let. vii.
Banking is "misleading." That Earldom "did not in the
Decreet of Banking hold the high precedence allowed it by the
House of Lords in 1771. Both it and the Earldom of Mar
were placed below the Earldom of ErroU created in 1452. I
defy you," added my noble correspondent, " to deny this." My
answer is, I do not deny that Sutherland and Mar were placed
below Erroll, created in 1452; but I have shown the reason
why, viz., that ErroU received a higher ranking — of " priority "
— above Sutherland and Mar in consequence of the great
hereditary office he held, precisely as Argyle was ranked above
Crawford for the same reason. The first six Earls on the roU
held, as I have shown, with Angus at their head, exceptional
and privileged priority of rank ; and Sutherland, the seventh
in actual ranking, held the first place among the unprivUeged
Earls, and Mar the second ; and this was in precise accordance
with the antiquity of their productions, viz., 1347 and 1404;
-while Eothes, the third, immediately sequent to Mar, simUarly
received the ranking due to his earUest production, which was
that of 1459. My statement was thus not " misleading," as
Lord Eedesdale qualifies it, when duly considered, as I have
above shown.
I take the same exception to Lord Bedesdale's assertion
that Sutherland '" did not in the Decreet of Banking hold the
high precedence allotted to it by the House of Lords in 1771."
In the first place, the House of Lords has no power to assign
precedence or invert the order laid down in the Decreet of
Banking or in the Union Eoll ; and this was fuUy acknow
ledged in the House in 1877, as I shall in due time show. To
have assigned a precedence to Sutherland, even from 1347,
would have been to place him above Crawford, and alter the
Union Boll, which fortunately has never yet been effected,
even unwarrantably, by anything done by the House of
Lords. What the House of Lords did in 1771 was to report
that the heir-general was in their opinion entitled to the
dignity in preference to the heir-male, on the ground that
Elizabeth Sutherland, living in 1514, the lineal descendant
and representative of WilUam Earl of Sutherland who flour
ished in 1275, was Countess of Sutherland in her own right,
and transmitted the dignity through the succeeding Earls, and
thus to the second Elizabeth, who was entitled to it, inasmuch

SECT. IV. THE EAELDOM OF MAE. 89
as the descent of the dignity had never been altered by any
subsequent intervention. But further, the Commissioners of
Banking accepted the evidence of the charter of 1347, pro-ving,
not that the Earldom of Sutherland was then created, but that
the Earldom was then an existing dignity; and in so doing they
recognised directly, in the first instance, the transmission of
the dignity through Elizabeth in 1514, precisely as the House
of Lords did, and inferentially, in the second instance, such
antiquity as might be derived from Earls of Sutherland anterior
to 1347, and placed Sutherland in consequence first of the
Earls in the category of dignities the ranking of which fell to
be determined by comparative antiquity of creation, as proved
by evidence, as distinguished from those which stood upon the
alternate ground of priority through special grant, hereditary
office, or ceremonial prescription. The House of Lords made
no new discovery, no assignation of precedence in consequence,
no correction upon the Decreet of Banking, in 1771, in terms
of Lord Bedesdale's proposition, but simply affirmed what the
Commissioners of Banking had affirmed before them. My
statement in the Brotest is thus justified, although I certainly
did not make it with any such view or latent object as Lord
Eedesdale suggests.
Lord KeUie, in his Letter to the Peers, advances the same
argument, with an inference or corollary which I must needs
notice. " The position of Mar, however," he says, " is by no
means singular. The Earldom of Sutherland was created before
1 275, and yet that Peerage was placed in the Decreet of Banking
after those pf Angus, Argyle, Crawford, ErroU, and Marischal,
the first of which was created about 1389, and the last about
1 458. The Commissioners may have ranked Sutherland accord
ing to a supposed new creation which has since been decided
not to have taken place ; but if so, according to Lord Crawford's
argument as to Mar, it is not the Earldom of Sutherland, proved
by a decision of the House of Lords to have been created in
1275, but a more recent one, which, if his contention is logically
carried out, could still be claimed by the heir-male." In this
passage, "created before 1275" would be more correct than
" created in 1275," inasmuch as the Earldom existed at least as
early as 1225. The fact that the award of the Commissioners
in 1606 proceeded on the charter of 1347, which proved the

90 THE EAELDOM OF MAE. let. vu.
existence of the dignity at that time, disproves, as already
observed, the possibility that they could have proceeded on a
new creation in 1514 ; while, if that had been the case, proof
would have appeared of it in the evidence in the " De Jure
Prselationis." It is to be remarked here that the whole theory
of "peerage-earldoms" created by separate grants or patents
was unknown in 1 606 ; it is a figment of recent growth, asserted
by Sir Eobert Gordon, the Sutherland heir-male, in answer to
the proof of the descent of dignities to heiresses and the
assumption of dignities by the husbands of heiresses supphed
by the Sutherland heir-general, and blo'wn to atoms in the
Additional Sutherland Case of Lord Hailes, but which, never
theless, has been maintained, and effectively maintained, by
Lord Kellie in his recent claim before the House of Lords.
The logical necessity under which Lord KeUie requires me to
admit that the heir-male of Sutherland would be entitled to
claim an Earldom of Sutherland dating from 1514, as against
the report to the Crown in favour of the heir-general in 1771,
if it be the fact, as he suggests to be possible, that the Com
missioners in 1 606 ranked Sutherland according to the supposed
creation in 1514, does not approve itself to my apprehension,
inasmuch as it is — what Lord HaUes objected to one after
another of Sir Eobert Gordon's arguments — an hypothesis buUt
upon an hypothesis in an argument ; and, sooth to say, the
arguments which were successful in behalf of Lord KelUe in
1875 afford the only parallel in this respect to those which
proved unavailing when urged on behalf of the Sutherland
heir-male in 1771.
I may conclude this matter, so far, by instituting a com
parison between the cases of Sutherland and Mar in 1771 and
1875, which reveal a parallelism of which neither Lord Chelms
ford, nor Lord Eedesdale, nor Lord Kellie, have, so far as I am
aware, taken any notice. Lord ]\Iansfield, 'whose authority
stands paramount with all the noble and learned Lords from
whom I have the misfortune to differ in respect of the interest
ing matter before us, spoke thus in his address to the Com
mittee of Privileges on tbe Sutherland claim, in moving a
resolution in favour of the heir-general : — " When a com-
mis.sion was granted that year" (1606) "for classing the
nobility according to their several rights, the Earl of Suther-

SECT. IV. THE EAELDOM OF MAE. 91
land was ranked, and thus the evidence of a new creation might
have appeared, if any had ever existed. By that ranking the
Earl of Sutherland takes precedence of ten Earls whose in
terest it was to have shown a new creation. But so little
notion had they of a new creation at that time, that we see the
famUy soon after complaining that it was not carried to its
original In 1630 it appears they began, and then entered a
protestation. Sir Eobert Gordon's ancestor wrote a book, a
history of the family, which ends that year, and expressly
mentions the ancient peerage as descending to Elizabeth. . . .
There might have been a limitation of the honours to heirs-
male, but no colour of e'vidence has been shown of such limita
tion. I am therefore clearly of opinion that the claimant,
Lady Elizabeth, is entitled to the dignity." In another con
temporary report of the speech the additional words occur,
" There could not be a new creation." And after citing the
family history of 1630, he adds, "As there is no doubt that
women were capable to take it, it is a clear answer to the
presumption relied on by Sir Eobert Gordon." ^
What now, I would proceed, are the facts before us in the
case of Mar ? That the Commissioners of Banking gave John
Earl of Mar, claiming as heir of Isabel Countess of Mar in
1404, precedency over six Earls created previous^ to 1565.
This cannot be, and it is not, disputed ; but it is aUeged by
Lord KeUie, the Mar heir-male, that the dignity had been re-
granted by a personal charter or patent, now lost, with limita-
tation to heirs-male of the body, in 1565, precisely as Sir
Bobert Gordon, the Sutherland heir-male, alleged that the
dig'nity of Sutherland had been regranted by a personal charter
or patent, with limitation to heirs-male of the body, in 1514 ;
and that he, Lord Kellie, is therefore entitled to the Earldom,
and not Mr. Goodeve Erskine, the heir-general. Can it be
doubted that, if Lord KeUie's claim had been before Lord
Mansfield in 1771, that noble and learned Lord would have
advised against him, and in favour of the heir-general ? His
words would have been, upon the point I am at present
dweUing upon, the same as those above quoted, the names
only changed : — " When a commission was granted that
year" (1606) "for classing the nobility according to their
' Maidment's Report of Sutherland Claim, pp. 16, 39.

92 THE EAELDOM OF MAE. let. vii.
several rights, the Earl of Mar was ranked, and the evidence
of a new creation might have appeared if any had ever
existed. By the ranking, the Earl of Mar takes precedence
of six Earls, whose interest it was to have shown a new
creation. But so little notion had they of a new creation
at that time, that we see the family soon after complaining that
it was not carried to the original. In 1639 it appears they
began and then entered a protestation. There might have been
a Umitation of the honours to heirs-male, but no colour of
evidence has been shown of such Umitation. I am therefore
clearly of opinion that the " — I must here substitute " opposing
petitioner " for " claimant " — " is entitled to the dignity. ' And
in tbe other report of the speech, " There could not be a new
creation" is equally apposite ; and, " As there is no doubt that
women were competent to take it, it is a clear answer to the
presumption relied on by Lord Kellie." It wiU be remem
bered that the Sutherland case was decided on the presumption
in favour of heirs-male, an exception being held to have been
established in favour of heirs-general, through the succession of
Lady Elizabeth and her son, the ancestor of the second Une of
the Earls of Sutherland, of the house of Gordon. This pre
sumption is, as I have protested, the reverse of the presump
tion of Scottish law, which rules in favour always of the
heirs-female, throwing the onus of disproof on the heir-male ;
and therefore it was only by a fortunate accident that the
Sutherland honours were awarded to the rightful claimant —
who ought not, in fact, as I have already observed, to have
claimed what she duly inherited by law, but assumed (her
guardians acting for her) her hereditary title, leaving it to the
heirs-male to institute a process against her. But, even on the
pseudo-presumption in question, the cases are still parallel,
inasmuch as by the Act of Parliament 1587, and the final
Decreet of 1626, Bobert Lord Erskine is proved to have suc
ceeded lawfully as Earl of Mar in 1435, in right of his mother
Janet Keith, wife of Sir Thomas Erskine his father, and eldest
coheir of the ancient Earls of Mar, faUing the Countess Isabel,
thus establishing an exception identical with that \vhich was
successfuUy urged on behalf of the Countess Elizabeth in
1771; but which the Committee for Privileges in 1875 over
looked, under the preoccupations repeatedly insisted upon in

SECT. IV. THE EAELDOM OF MAE. 93
former pages of these Letters. In fine, the House of Lords in
1771 peremptorUy rejected the argument for a lost patent which
the House has affirmed in 1875.
I have already shown that both Lord Mansfield and Lord
Camden admitted the possibUity of the succession of heirs-
general to dignities, constrained to do so by the proofs laid
before them by Lord HaUes ; and, further, that Lord Camden
actuaUy based his advice in favour of the Sutherland heir-
general on the fact that the Earldom of Mar had descended
through females from 1377, the date of Earl Thomas's death, in
whom, according to Lord Eedesdale, the originalEarldombecame
extinct, down to 1715, when it was extinguished by attainder.
I may recite his words at the risk of repetition, but in order to
complete the present parallel : — " I see from indisputable evi
dence that no less than nine of the thirteen ancient Earldoms
passed through females and came to females." Lord Mansfield
admitted the fact more grudgingly : — " Though ten of the thir
teen original peerages stated in Lady EUzabeth's case have
gone to females, yet I am not convinced but that the original
limitations might have been to heirs-male " — a purely gratuitous
supposition. These " nine " Earldoms were Buchan, Athole,
Angus, Menteith, Carrick, Boss, Fife, Lennox, and Mar ; in con
sequence of which the inference was drawn that Sutherland
was a tenth. Substituting Sutherland for Mar in this enumera
tion, the number would be the same, and the inference identi
cal, viz. that Mar was a tenth.
In conclusion, I hope it wUl be found that I have answered
Lord Kellie's chaUenge and Lord Bedesdale's defiance — cartels
both of them which I have attempted to meet in the field of
honour, in the spirit of courtesy which should govern aU such
tournaments — fuUy and satisfactorUy, and vindicated my two
Protests, in so far as I maintain therein that the precedency
awarded to the Earl of Mar by the Decreet of Banking in 1606
is incompatible with and negatives the contention embodied in
the Eesolution of 1875, that the existing Earldom of Mar is not
the ancient, but a modern Earldom created in 1565. I have
further shown, step by step, that the Decreet of Banking, cor
rected where necessary under the provisions of the decreet by
the Court of Session, and supplemented by the addition of
newly created peerages, became from the first, and continued

94 THE EAELDOM OF MAE. let. vii.
uninterruptedly to be, the Eoll of the Peers in Parliament down
to the Union, when it was inscribed into the Journals of the
House of Lords, and from that time has been styled the Union
Boll, under which sanction and authority it has ever since been
called over at the election of Scottish Eepresentative Peers at
Holyrood, being still the Decreet of Banking under a new and
loftier name. I have shown (to continue this summary) that
the Eeport of the Court of Session in 1740 was the work merely
of one man, and has no judicial or even official authority ; and
that the abridgment of the Boll used since 1847 is equaUy with
out authority, the reference behind it being stiU and simply to
the Union Eoll. I have also shown that the Protests on the
Books of Parliament " for remeid of law " do'wn to the Union
were for the purpose of preserving the right of prosecuting
actions for higher precedency before the Court of Session under
the clause in the Decreet of Banking, protective of the rights of
aggrieved parties — the same remedy sought and found by the
Countess of Buchan and the Earl of Glencairn in the seven
teenth century — that these protests were recognised and per
petuated in their full validity and for their original purpose by
the House of Lords in 1708 ; and that the Earls of Cra'wford
and Erroll were ordered by the House of Lords to be summoned
in 1769 to oppose the Sutherland claimants for their interest in
the face of the renewal or " wakening " of the Sutherland claim
to precedency before the Court of Session in ] 746 ; thus testi
fying to the fact that no change had taken place in the right of
prosecution, or in the Court where that prosecution fell to be
carried through. It could not be otherwise under the protec
tive sanctions of the Treaty of Union. It foUows necessarily
that no correction upon the precedency laid down in the Union
Boll can be legally and constitutionally effected except by the
Court of Session, in terms of the provision in favour of aggrieved
parties, the decision of the Court being final and beyond appeal
to any quarter, not only according to the provisions of the
Decreet itself, but in virtue of the fundamental jurisdiction of
the Court as protected by the Treaty of Union. The House of
Lords therefore can exercise no jurisdiction over the Union Eoll
— can issue no Orders affecting it in any way — are bound to
respect it ; while the Sovereign himself is equally debarred from

SECT. IV. THE EAELDOM OF MAE. 95
interference. The intervention of the Court of Session, if needed,
may content the Peers of Scotland as well in the nineteenth as
in the seventeenth century.
I may wind up this Letter with a citation from Mr. Eiddell's
" Peerage and Oonsistorial Law," in order to show what that
profound antiquary held on the subject of the correction of
errors in the Decreet of Banking and the Union Eoll ; and, if
Lord KeUie lays stress on the passage he has quoted against
me, I am equally entitled to lay stress upon that which I now
commend to his attention ; in which, writing of that Decreet,
he says : —
" By its express avowal it was only to stand ' ay and quhill'
(always and until) ' ane decreit before the ordinar jiidge be
recoverit and obteanit in the contrair,' with the natural reser
vation ' to suche persoun or persounis as sail find thamselves
interest and prejudgeit be thair present ranking to have
recourse to the ordinar remeid of law, be reductioun before
the Lords of Coimsell and Sessioun of this present decreit.'
These clauses distinctly show who were to be the judges, namely
the Court of Session. The struggles for precedence among
a fierce and untractable nobility had attained such height as to
embroil Parliament and impede public business, demanding
this interference of the King and his Council, who, from their
high station and power, could alone originate what was physi
caUy beyond the Session, although the legal umpires. But
the former, having thus impelled the machine, forthwith quitted
a field for which they proved themselves unfit to the latter,
who thereupon resumed their functions that had been but
temporarily suspended. And accordingly the CivU Court, on
the 7th of July 1610, at the instance of the Earl of Glencairn,
reduced the Decreet of Eanldng so far as he was concerned,
and gave him the precedence of the Earl of Eglinton, and
other noblemen whomdt had preferred. Eglinton and they,
however, were not disheartened, but on the llth February
1617 had this decree of reduction reduced, regaining their
ascendancy on the roll, which they kept tiU the 19th of
January 1648; when the Earl of Glencaurn, resuming hostUi
ties by a duplicate action of reduction, again overcame them ;
whUe this incessant and protracted contention, that induced

96 THE EAELDOM OF MAE. let. vii.
infinite argument and research into the constitution aud
descent of Peerages, their descent, etc. had exclusively for its
arena the Court of Session. . . .
" So much for the Glencairn and Eglinton contest, which,
legally, was only before the Session. There are, besides, other
precedents, before and after the middle of the seventeenth
century, corroborative of our doctrine. In a dispute between
certain Lords and the Earl of Nithsdale for precedence in 1620,
they contended that they should not lose their ranking until
' their right wer decydit be the judge ordinar' and in a relative
negotiation that ensued, it was admitted to be ' 'without pre
judice of their rights before the ordinar judge.' Precedence was
always duly valued by our Peers, whUe in Protests occasioned
thereby in Parliament there is the same reservation. In 1661
Lord SempUl is summarily ranked before Lord Mordington;
but ' without prejudice of Mordington his process of reduction ;'
and the Earl of Caithness protests against the Earl of Buchan,
that the interim decree in 1606 should be observed 'untUlthe
same be reduced before the Lord Ordinary. No other judica
tory was contemplated.' " ^
^ RiddeU's Peerage and Oonsistorial Law, pp. 10-14.

THE EAELDOM OF MAE. 97

LETTEE VIIL
THE ATTAINDER AND ITS REVERSAL.
The episode of the Decreet of Banking and the Union
Boll having been thus discussed and settled in the preceding
Letter — I trust to the satisfaction of the reader, — I now resume
the main thread of the story, taking it up from the death of
Earl John, the son of the Earl restored in 1565, and in whose
favour the decreet of the Court of Session was pronounced in
1626, and with the accession in 1635 of his son, a third Earl
of Mar of the same Christian name, and in whose favour the
decreet of 1635 passed upon the process against the vassals of
Mar initiated by his father. It was this Earl John, the third,
who commenced the series of protests for higher precedency,
of which I have already spoken and shaU speak of again pre
sently. The fortunes of the family, which had culminated in
his person, began in his person to decline. Unswerving
loyaltjr to the royal cause — the hereditary characteristic of
the Erskines — throughout the Great Bebellion, was punished
by fines and sequestrations up to the date of the Eestoration ;
and, after that event, the debts contracted in the cause of
Charles i. and Charles ii. necessitated the sale of estate after
estate — including the barony of Erskine, their original honour,
on the Clyde — till the possessions of the famUy were reduced
to Uttle more than the lordship of Alloa, an ancient Erskine
dependence, although dignified by the supreme rights of
regaUty. The seal was set upon these misfortunes and their
decadence by the accession of John Earl of Mar, the great-
great-grandson of the Earl restored in 1565, to the rebeUion of
1715, of which he was, in fact, the leader and head. He was
attainted in consequence, and his honours and the remnant of
the estates forfeited. The estates were repurchased for the
VOL. II. G

98 THE EAELDOM OF MAE. let. viii.
family some years afterwards, and the attainder was reversed
in 1824. I note thus much here merely by anticipation.
During this decline of prosperity and ultimate utter.
obscuration through attainder, the latter period lasting 110
years, more than one circumstance presses on our notice as
indicating the general recognition of the Earldom of Mar as
the ancient Earldom derived from the Countess Isabel, and
descendible to heirs-general — the modem figment of a personal
Earldom created in 1565, with limitation to heirs-male exclu
sively, being absolutely undreamed of, or if suggested, sternly
disallowed. These circumstances are, first, the continued pro
testations of the family for higher precedency, up to the Union,
which I have already treated of; secondly, the testimony of
the family themselves early in the last century, but subse
quently to the attainder, as to the standing rule of succession
to the dignity; thirdly, the testimony of Lord HaUes, the
greatest genealogical and feudal lawyer of Scotland — speaking,
as he always does, as a judge, not an advocate — and that of the
House of Lords, as represented by Lord Mansfield and Lord
Camden — to the main fact I have insisted on in my Protest,
the unbroken continuity of the ancient Earldom and its
descendibility to heirs-general ; fourthly, the recognition of all
this by the Crown and by the Imperial Parliament at the
time ofthe reversal of the attainder in 1824 : (the contentions
maintained by Lord Kellie, urged by Sir Eobert Gordon, the
Sutherland heir-male, in 1771, but rejected then by the House
of Lords, first obtained formal recognition in 1875); and
fifthly, the resumption of the protestation after the reversal of
the attainder.
(1.) The Protests, commencing in 1639, and of which I have
enumerated the sequence in the preceding Letter, continued
till the Union, suspended necessarily during the period of
attainder, but resumed subsequently to the reversal, furnish
important evidence as establishing the fact that the Earldom
of Mar, as restored in 1565 — I am not assuming too much in
saying "restored," as Queen Mary's word is "restituere"—
was the original and ancient Earldom in ,the opinion not only
of the Earls of Mar themselves, but of their brother Earls, and
especially of those ranked above them in the Decreet of Bank
ing, not one of whom, up to the date of the Union — for I leave

LET. vm. THE EAELDOM OF MAE. 99
the later protests out of view at the present moment — not one
of them between 1639 and 1707 ever ventured to protest in
reply against what would have been an unheard-of presump
tion if the Earldom had been in their eyes a creation of yester
day. The testimony alike of the Earls of Mar and of those
brother Earls, positive and negative, thus points to one and the
same conclusion. I do not reckon the futile and inexplicable
menace of 1622, which fell flat on the ear of Scotland, and was
not legally uttered, as an exception to this assertion. Nor will
any objection be urged to it, I presume, on the score of the
alleged suppression and destruction of evidence, after what I
have proved in the preceding Letter.
(2.) The testimony of the famUy themselves subsequently to
the attainder, and early in the last century, as to the standing
rule of succession to the dignity, in the anticipation of the
succession divaricating between heirs-male and heirs-general,
falls next to be illustrated ; and I do not see that this, any more
than the argument just suggested upon the protests, has re
ceived the attention that it deserves. This testimony is afforded
by the entail of the family estates in 1739 after their purchase
for the family — an entail which affords very important corrobo
ration of all that has been said up to the present moment.
To understand what follows, I must enter into a few minute
particulars as to the descent and representation of the family,
but which will not, I trust, prove tedious.^
John Earl of Mar, the attainted Earl, left an only son,
Thomas, usually styled Lord Erskine, notwithstanding his
father's attainder ; and a daughter, styled Lady Frances Erskine.
Thomas Lord Erskine died in 1 76 6^ without surviving issue.
Lady Frances then became heir-of-line and heir-general of the
Earls of Mar. She married her cousin-german, James Erskine,
son of James Erskine, Lord Grange of the Session, the for
feited Earl's younger brother, and who, after the death without
issue of an elder brother in 1774, was heir-male of the house,
as Lady Frances was heir-general. Lady Frances and her
husband left issue, John Francis Erskine, who was thus both
heir-general and hei^-male of Mar, and in whose person and
favour the attainder was reversed in 1824.
I must further state that, by the clemency of the Crown,
' See Genealogy of the Earls of Mar, vol. i. p. 175.

100 THE EAELDOM OF MAE. let. viii.
as exemplified in other instances of attainted famUies, the
members and friends of the family of Mar, not immediately
descended from the attainted Earl, were permitted to repurchase
the forfeited estates at a price much below their value, and to
settle them under trust for the benefit of the lineal heirs of the
house, though within the Une of the forfeited succession. The
purchasers and trustees on this occasion were Lord Grange,
Earl John's younger brother, and Da-vid Erskine of Dun, Lord
Dun of the Session, the representative of one of the most re
spected and ancient branches of the house of Erskine. The
purchase concluded, the transaction was completed by a charter
from the Crown under the Great Seal, 26th July 1725, upon
which infeftment followed. But Lords Grange and Dun pre
viously executed — on the 23d March 1723 — what is caUed a
" back bond," in specification of the terms and conditions under
which they undertook to hold the property, and expressing —
as it is recited in a disposition and entail immediately to be
mentioned — their willingness " that the benefite of the said
purchase should be for the behoove of Thomas Lord Erskine,
only lawful son of the said John, late Earl of Mar" (" late," as
being attainted and legally defunct) " and the other persons
after named ; " and binding themselves and their heirs " to de
nude ourselves of the said estates, at least so much thereof as
shall remain unsold and disposed upon for payment of the
debts therein mentioned " (i.e. in the bond), " and to dispone
the same to and in favour " — and here follow the destinations,
to which particular attention must be paid — " of the said
Thomas Lord Erskine and the heirs of his body ; whom faUUng,
to any lawfuU sister of the said Thomas Lord Ei-sktne and the
heirs of her body ; whom faUling, to me, the said James Erskine,
and the heirs of my body ; whom failling, to the nearest agnate
of me, the said Mr. James Erskine, of the surname of Erskine ;
whom failing, to me, the said James Erskine, my heirs and
assignees whatsomever, with and under the provisions and
conditions therein mentioned and underwritten, as the said
back bond, containing thereintill " (i.e. therein) " severall other
obUgements and clauses, more fully bears." The original of
this back bond has been missing, as it is stated, since 1826, but
its purport is sufficiently clear from the recitation above given.
The two trustees, Lord Grange and Lord Dun, thus repre-

let. viii. the EAELDOM OF MAE. 101
senting the interests of the house of Mar, proceeded to pay off
the various debts and incumbrances affecting the property ; and
ultimately, their work completed, executed a disposition and
entail, dated the 6th January 1739, reciting the back bond
ut supra, and the particulars of their intromissions, and settUng
the residue of the estate, described in Scottish phrase as " all
and haUl the Earldom of Mar," upon the following personages
and lines of succession : — 1. Upon Thomas Lord Erskine, and
the heirs-male to be procreate of his body ; whom faUing, to
the heirs whatsoever descending of the said Thomas Lord
Erskine his body ; 2. The preceding heirs having failed, upon
Lady Frances Erskine, his (Thomas's) sister and the heirs-male
to be procreate of her body ; whom failing, to the heirs what
soever descending of her body ; whom all failing, 3. Upon the
said James Erskine — beyond which I need not repeat the
destination, being the same as in the back bond as above cited
— " the eldest heir-female," it is added, " and the descendants
of her body excluding all other heirs-portioners, and suc
ceeding all wayes without division through the whole course of
succession in aU time coming, with and under the conditions,
provisions, declarations, burdens, faculties, restrictions, limita
tions, clauses irritant and resolutive after mentioned, and no
otherways." Of these provisions and clauses the first is as
follows : — " With this provision allwayes, Ukeas it is hereby
expressly pro'vyded and declared, that the eldest female heir
of tailzie above specified, and the descendants of her body,
shall exclude the younger and her descendants as heirs-por
tioners, and shaU succeed aUwayes 'without division ; and that
the whole heirs of taUzie above-mentioned, as well male as
female, and the descendants of their bodies who shall happen
to succeed to the saids lands and estate by virtue of the
foresaid destination, shall be obliged in all time after their
succession to assume and constantly use and bear the sur
name of Erskine, and take and carry the arms which before
the attainder of the said John late Earl of Marr, were worn
by the family of Erskine and Marr, in so far as the same
or any part thereof can be obtained and legaUy and war-
rantably born: and in case" — and I thus arrive at the point
of remark which will be my apology for this prolonged detail
— in case " the attainder of the said John late Earl of Mar shaU

102 THE EAELDOM OF MAE. let. viii.
be reversed," shall reassume and constantly use and bear, and
shall "take and carry," ut supra, "the title, dignity, and
honours of the famUy of Erskine of Marr, and the arms thereof,
as their own proper surname and arms in all time thereafter."
The importance of this final proviso cannot but at once
approve itself to the apprehension of the reader. It wiU be
perceived, —
1. That the destination of the estates known coUectively as
the "Earldom of Mar" is to heirs-general, including
females, who are preferred in the case of Lady Frances
and her children to the heirs-male coUateral, of whom
Lord Grange, the principal trustee and framer of the
entail, was the nearest. In conformity with this settle
ment, Thomas Lord Erskine ha'ving died without issue.
Lady Frances succeeded under the entaU, and on her
death in 1776, her son John Francis Erskine, the same
who was restored as Earl of Mar against the attainder
in 1824, succeeded at once in her right, not'withstanding
that his father, James Erskine, Lord Grange's son, and
the heir-male of the family, survived tUl 1785. I am
not aware that this entail of 1739 and its provisions.
have ever been superseded by any subsequent convey
ance ; but my remarks on this subject are limited to
the bearing of the document on the question of the
succession to the dignity of Mar.
2. That by the provisions of the settlement it is made
obUgatory on the heirs-general, being strangers to the
house of Erskine, to adopt the surname and arms of the
Erskines Earls of Mar, in the event of their succeeding
to the estates in that capacity; and further, what is
the most important point for my present purpose,
3. That, in the event, which is looked forward to, of a
reversal of the attainder of the Earldom of Mar, the
same series of heirs-general, including those who shall
be strangers to the blood except by maternal descent,
shall adopt and bear "the title, dignity, and honours of
the famUy of Erskine of Marr, and the arms thereof, as
their own proper surname and arms in aU time there
after."
1 need scarcely insist on the importance of this testimony

LET. vm. THE EAELDOM OF MAE. 103
as showing that in the opinion of Lord Grange, the principal
trustee in the disposition of 1739, the dignity was descendible
to heirs-general under the restoration in 1565, and the rights
then resuscitated— Lord Grange being the collateral heir-male
of the house of Erskine, and the man above all others interested
in maintaining the exclusive male succession, had there been a
pretence for such interpretation. Not a doubt was felt by him
upon the subject ; and both he and Lord Dun, his colleague,
occupied seats on the bench as Lords of Session, and were well
versed in the laws of their country on the point of succession.
On the other hand, it is impossible to hold that if the dignity,
the restoration of which was so evidently in contemplation,
had been understood to be descendible by law to heirs-male,
excluding females. Lords Grange and Dun should have settled
the estates upon heirs-general, to the effect of separating those
estates from the dignity, and leaving the latter to descend
unprovided with the property requisite for its support,
under the contingency of a divarication of the representation
between heirs-general and heirs-male. Lord Mansfield argued
strongly upon this ground in his speech on the CassiUis claim :
" If the lands," he said, " were limited to heirs-male, the title of
honour cannot be supposed " (the original limitation being un
known) " to descend in a different channel from the lands in
the charter." The converse of this must, of course, be equally
true : " If the lands were limited to heirs-general, the title of
honour cannot be supposed to descend in a different channel
from the lands in the charter."
It is evident that if Lady Frances Erskine had married a
Douglas or a HamUton, the descendant of the marriage,
inheriting under the settlement of 1739, would have been
obliged under its provisions to adopt the name and arms of
Erskine, and in case of the dignity being restored, to adopt the
full insignia of the Earldom of Mar as held by the Erskines.
It so happened, and most happily, that Lady Frances married
(as I have stated) her cousiu-german. Lord Grange's son, an
Erskine, and (eventually) the coUateral heir-male of her house,^
and thus reunited the families ; but this was a mere accident,
not foreseen in 1725, and not contemplated by the terms of the
' [Lady Frances's husband -was at the time of the marriage only a
younger son of Lord Grange. He had an elder brother Charles, who sur
vived tUl 1774, leaving no issue.]

104 THE EAELDOM OF MAE. let. vin.
disposition of 1739 in question. Lady Frances's marriage took
place in October 1740.
All this appears to me to have been overlooked or over
ruled by the House of Lords, as I shall presently show.
The consequence of what has been shown is, that according
to the view and testimony of the family, and of the heir-male
of the famUy in 1739, Lady Frances Erskine, the survi-ving
child of Earl John, would, in the event of the attainder having
been reversed some time between 1739 and 1766 (the date of
the death of Thomas Lord Erskine, her brother), have become
Countess of Mar in her own right ; and her son, John Francis
Erskine, would have succeeded as Earl upon her death in
1776, in her right, while his father, James Erskine, the younger,
Lady Frances's husband, was stUl aUve, precisely as he actuaUy
succeeded to the estates under the entaU of 1739 in that
character. Considerable difficulty appears to have been felt in appre
ciating the bearings of the preceding point from the fact that
James, the husband of Lady Frances, and ancestor of the later
Earls of Mar, was himself an Erskine. The view would be simph-
fied if we were to consider him for the nonce as a Douglas —
James Douglas, and his son as John Francis Douglas, assuming
the name and arms of Erskine Earl of Mar under the irritant
clause of an entail. James Erskine was an absolute stranger
to the succession of the Earldom and estates in point of law,
notwithstanding that the chiefship of the house of Erskine
would stiU have remained in him, abstractly from those dig
nities and estates, in virtue of his male representation.
The evidence of the family of Mar in 1739 is thus clear,
that the Earldom was understood to be descendible to
heirs-general under the restoration in 1565; and the settle
ment of that year is in precise accordance thus far with the
motive cause of the protests repeatedly made in Parliament
down to the close of the seventeenth century, claiming a pre
cedency over all the Earls of Scotland — a claim which could
only be grounded on the fact that the remonstrants considered
themselves to be tenants in legal hereditary succession of a
line of Earls existing as such not merely from 1404, as in the
Decreet of Banking, but before Sutherland, whose earliest proof
adduced in 1606 was from 1347.

LET. VIII. THE EAELDOM OF MAE. 105
It is further to be observed that the testimony of the f amUy
in 1739 is not that of mere impression or belief, which might
be mistaken ; it testifies to the continuity of their remembrance
of the law affecting the descent of the dignity, as testified by
the Act of ParUament in 1587, and the decreet of the Court of
Session in 1626, both of which recognise Bobert Earl of Mar,
the direct ancestor of the Erskines Earls of Mar, as Isabel's
legitimate successor aUke in the fief and the dignity, in 1435.
No intervention having occurred through resignation to and
regrant from the Crown to alter the descendibiUty of the
dignity. Lord Grange and Lord Dun had no choice but to
recognise the descendibility in question as to heirs-general;
and they provided for the descent of the estates in consequence
— that is to say, through interposing no provision in favour of
heirs-male, in contravention of the common law of inheritance
— in conformity to it.
(3.) Proceeding now to a period ^thirty years later in the
century, we have the evidence, not of the family, but of Lord
Hailes, the greatest feudal and genealogical lawyer of his time,
as to the descendibility of the Earldom of Mar to heirs-general;
and the fact that the Committee for PrivUeges of the House of
Lords, advised by Lords Mansfield and Camden, but more
especially by the latter, based their Besolution on the claim to
the Earldom of Sutherland in no inappreciable degree upon
recognition of that descendibUity.
I have already stated the conditions of the competing
claims to the honours of Sutherland in 1769-71, when Suther
land of Forse and Sir Bobert Gordon, the heirs-male of the
original and the second or Gordon line of the Earls of Suther
land, contended against the right of the heir-of-line, the infant
daughter of Earl William, who died in 1766. Thereis nothing
new under the sun ; and the arguments of Sir Eobert Gordon in
particular were precisely those of Lord KelUe in 1875. Sir
Bobert's contention, based on the Cassillis case, was, that as
Elizabeth, sister and heir-of-line of John Earl of Sutherland
who died in 1514, did not bear the title for some time after her
brother's death, showing that she did not succeed as Countess
in her own right ; and as she and her husband Adam Gordon
subsequently appear as Earl and Countess of Sutherland, Adam
must have been created Earl of Sutherland in his own person

106 THE EAELDOM OF MAE. let. vm.
at some period during the interval ; and, as the original patent
is not extant nor on record, and the presumption in such cases
is in favour of heirs-male of the body ; consequently he, Sir
Eobert, was entitled as heir-male of the body of Earl Adam.
Lord Hailes, one of the guardians of the heiress — whom I hold
to, have been Countess of Sutherland from the moment of her
father's death, independently of any caU for recognition on the
part of the Sovereign, the onus resting on the heirs-male to
prove their better right against herself as in possession — Lord
Hailes, I say, cut through the root of Sir Eobert Gordon's
theory by adducing proof that out of the thirteen Earldoms
existing at the close of the thirteenth century, nine, including
Mar, descended to heirs-general, and Sutherland must therefore
¦ be held to have been descendible in like manner to heirs-
general. Lord Mansfield and Lord Camden, the latter in the
most unqualified manner, accepted this proof and argument as
sound. " I see from indisputable evidence," Lord Camden
said, " that no less than nine of the thirteen ancient Earldoms
passed through females and came to females," on which ground,
Mar being one of the thirteen, he advised the Committee of
Privileges in favour of heir-of-line. Lord Mansfield admitted
Lord Hailes's proof to the same effect, although -with a qualifi
cation. " Though ten of the original Earldoms stated iu Lady
Elizabeth's case have gone to females, yet I am not con-vinced
but that the original Umitations might have been to heirs-
male," — a quaUficatiou unworthy of serious notice. What
Lord HaUes urged, and what the House of Lords admitted in
1771, was simply in conformity with the law of succession in
Scotland as exhibited in the case of Mar in 1565 and 1626.
But all traces of the truth, all remembrance apparently of its
recognition in 1771 had become obliterated before 1875, when
Lord Kellie reiterated the old contention of Sir Eobert Gordon,
mutatis mutandis, to suit the case of Mar, and the House of
Lords, advised by Lords Chelmsford, Eedesdale, and Cairns,
ignoring the evidence given by Lord Hailes, which Lord Cam
den characterised as " indisputable," pronounced in his favour
against the heir-general — to the effect that if the Eeport of 1875
be right, that of 1771 was wrong, and vice versa, the two cases
of Sutherland and Mar being absolutely parallel in this respect.
I merely refer to the proceedings of 1875 to point the contrast,

LET. vm. THE EAELDOM OF MAE. 107
— the year I stand upon at the present moment is 1771, thirty
years subsequently to the Mar disposition of 1739; and I
draw attention to the fact that Lord Hailes, Lord Mansfield,
and Lord Camden, the two latter representing the House
of Lords, bear witness to the accuracy of the views as to the
succession of the Earldom of Mar to which Lord Grange and
Lord Dun gave expression in the provisions of that disposition
as above exhibited.
The result of this survey of the period between the
attainder of 1715 and the reversal of that attainder in 1824
is, that, by the concurrent testimony of the family in 1739, by
the proofs adduced by Lord Hailes in 1771, and by the recog
nition of those proofs as valid by Lords Mansfield and Camden
in the Sutherland case in that year. Lady Frances Erskine,
only surviving child of Earl John who flourished in 1715,
would have succeeded to her brother. Earl John's only son,
Thomas Lord Erskine, as Countess of Mar in her own right, if
the attainder had not taken place ; and, carrying the principle
onward, that Lady Frances's son by whatsoever husband,
whether patrimonially a Stewart, a Douglas, or a Goodeve,
would have similarly succeeded as Earl of Mar on her death.
It was by a pure accident that Lady Frances married, not a
Stewart, but an Erskine, her cousin-german, the heir-male;
and this circumstance, I must again repeat, has to a certain
degree bliuded the perception of some who have considered the
question. But for the attainder. Lady Frances's — that is, the
Countess Frances's — son would have succeeded to the dignity
on her death during his father's Ufetime, even as that son,
John Francis Erskine, subsequently restored as Earl of Mar,
actually did succeed to the estates, under the settlement of
1739, on his mother's death, during his father's Ufetime.
(4.) All this was still in remembrance in the auspicious year
1824, when the descendants of so many of the leaders in the
insurrections of 1715 and 1745 were restored to their ancient
honours by the grace of the Crown. This grace was limited at
first to such persons as were the lineal representatives of the at
tainted peers, and would have been in possession of the respec
tive dignities but for the attainders. John Francis Erskine of
Mar, the son of Lady Frances Erskine (by her husband James
Erskine, the collateral heir-male, as has been shown supra)

108 THE EAELDOM OF MAE. let. vm.
ranked in this category ; and the attainder was reversed in his
favour by Act of Parliament in the character of " grandson and
lineal representative" of John Earl of Mar, forfeited in 1715.
The Act proceeded upon a Eeport to the Crown drawn up
and signed by Sir John Copley, the Attorney-General, after
wards Lord Lyndhurst, and Sir WiUiam Bae, the Lord Advocate,
tracing and certifying the descent of John Francis Erskine
lineally from John Earl of Mar through his mother Lady
Frances Erskine, Earl John's daughter, without any reference
to his male descent through his father James Erskine from
Lord Grange, Earl John's younger brother, who, as I have
already enforced, was only accidentally an Erskine so far as
his matrimonial intervention in the famUy pedigree and suc
cession is concerned, and might have belonged to any other
family so far as the lineal representation of the Earls of Mar
was concerned. I have to notice here that the heir-general,
whom the House styled "the opposing petitioner" in 1875,
was not permitted to put this Eeport of 1824 in evidence
before the Committee for PrivUeges, — although by an incon
sistency difficult to account for — but for which there may have
been good reasons, although I cannot divine them — the claimant
of the barony of Naime, Uke'wise restored in 1824 against
forfeiture, was permitted to put a precisely simUar Eeport to
the Crown in evidence in that claim in 1874. I remarked in
my original Protest, when dealing with this part of the subject,
that " it is to be observed that the reversals of attainder in
1824 were rigidly restricted to the case of such persons as
were the direct heirs of the body of the attainted peers, and
would have been in possession as such had the attainders not
taken place. There can thus be no question as to the under
standing upon which the inclusion of the Earldom of Mar
among the restored dignities proceeded; whereas, upon the
view taken by the recent Committee of PrivUeges, viz. that
the Earldom of Mar is a dignity descending to heirs-male, the
forfeited Earldom would have been excluded from the category.
The Act of Parliament," i.e. restoring the dignity in 1824,
" was thus in strict conformity with the standing judgment of
the Court of Session in 1626, and with the precedency from
1404 under the Decreet of Banking and in the Union Eoll."
Apart, however, from testimony of such remote date as the

let. viii. THE EAELDOM OF MAE. 109
Union, the inclusion of Lord Mar among the favoured indivi
duals, and the language of the Act of 1824 specifying his
descent, were, I may now affirm, in natural sequence to the
testimony of the famUy in 1739 and the recognition by the
House of Lords of the descendibility of the Earldom to heirs-
general, in 1771, as above sho'wn; and I am justified in affirm
ing that that descendibUity had never been questioned except
by such claimants as Sir Eobert Gordon previously to the
Eeport of 1875.
I subjoin the views of Lord Chelmsford and Lord Eedes
dale — ^it is but justice to Lord Kellie to do so — as expressed in
their speeches in proposing the Besolution of 1875. But I
must be permitted, in justice to myself, to interpose a word or
two of comment or expostulation in doing so : —
" The Act," said Lord Chelmsford, " restoring John Francis
Erskine and all entitled after him to the honour, dignities,
and titles of Earl of Mar, recites that he is ' the grandson
and lineal representative ' of John Earl of Mar. He was the
grandson of John Earl of Mar through his mother. Lady Frances
Erskine. Upon this fact the counsel for the opposing peti
tioner argued that it was intended by the Act to restore the
dignity to the person entitled as the Uneal representative of
the attainted Earl ; and, as the person restored was only Uneally
descended from John Earl of Mar through a female, it amounted
to a parliamentary recognition that the dignity before the
attainder was descendible to females." I should have thought
so too, even independently of the rejected Eeport to the Crown,
which proceeds, as I understand it, upon that precise ground;
But Lord Chelmsford proceeds : " There is not, in my opinion,
a shadow of foundation for this argument. The intention of
the Act was to restore John Francis Erskine to the dignity," to
which I demur ; it was to restore the dignity to the person who
would have been entitled to it under the Umitation of the dig
nity if the attainder had not taken place, which character had
been certified to be vested in John Francis Erskine : as Lord
Chelmsford puts it, it was intended to restore him the dignity
on the mere assumption that he was entitled to it. " He was
undoubtedly the nearest in blood in succession to the attainted
Earl, and he had a preferable claim to every other person to
be restored," — but not as Uneal representative quu the dignity, if

110 THB EAELDOM OF MAE. let. viii.
the limitation was to heirs-male, as Lord Chelmsford contended,
John Francis Erskine being only Earl John's collateral heir-
male. " The recital in the Act, that he is grandson and lineal
representative of the attainted Earl is an accurate description
of his title, without reference to the course of descent by which
it was derived ; " but, apart from that reference, the title could
not be ascertained, and, unless ascertained, the recital could not
be accurate, which cannot be presumed. " There was not the
slightest occasion to make any inquiry as to the succession to
the restored title, and probably none was made," — a probability
which could only, as it appears to me, have been suggested in
the absence of the Eeport of the law officers of the Crown,
which, as I have stated, was not allowed to be received in
evidence. " It was enough to restore the dignity to whatever
person was best entitled to it, and when restored it would,
as a necessary consequence, be subject to the course of descent
which was incident to it before the attainder.'' But there
was this difficulty in the way of this easy-going action, that if
Lord Mar was restored, being an heir-male coUateral, and not
inheriting by lineal descent from the attainted Earl, an excep
tion would have been made in his favour to a rule, or rather
condition, which the Crown had presented to itself at the time,
viz., to restore none but lineal representatives, as above stated.
The very words of the Act, " grandson and Uneal representa
tive " are unintelligible, unless the restored Earl had a right to
.the dignity through his mother.
Lord Bedesdale's views on the above point are taken in
connection with the question " what shaU be held to be the
remainder under Queen Mary's creation," — that is, under
the supposed new creation "probably by charter," in 1565?
" The presumption," he says, " is in favour of heirs-male,"—
that is, by Lord Mansfield's rule, the exact reverse of Scottish
law, and against Lord Camden's and Lord Mansfield's own
admission that the Earldom of Mar was descendible to females
in 1771. "What is there in the evidence before us," asked
Lord Eedesdale, " to contradict that presumption ? The only
points urged are the charter restoring tbe Comitatus to heirs-
general," i.e. the charter of restoration 23d June 1565, "and the
fact of the person to whom the Earldom was restored after the
attainder being called in the Act " the grandson and lineal

let. vm. THE EAELDOM OF MAE. IU
representative " of the attainted Earl, he being grandson only
through a female. The charter being a restoration to the heirs
of Isabella before the new peerage was created "—i.e. by the
supposed lost patent or charter of 1565 — "naturally left the
Comitatus to the old limitation," in which case, I may observe,
the presumption would be, according to Lord Mansfield's ruling
in the Cassillis case, already cited, that the newly created dig
nity would be Umited so that the estates and the dignity might
not separate ; " and the words quoted from the Act of Parlia
ment" of 1824 "cannot be held to determine a matter not then
inquired into, when the person obtaining the Earldom was heir-
male as well as grandson through an heir- female."
Lord Cairns made no observation on the present point.
(5.) Quotations have been adduced from the speeches of Sir
Eobert Peel and others, when the Bill for reversing the attain
ders was introduced in 1824, sufficiently proving that they
understood that it was the original and almost primeval Earl
dom which was the subject of restoration. But such evidence
is unimportant, as it appears to me, in comparison with the
fact that immediately after the reversal of the attainder, John
Francis, the restored Earl, who was then an extremely aged
man, and died the following year, renewed the ancient claim of
his family to higher precedence at the election of Scottish Ee
presentative Peers at Holyrood, on the 8th July 1824, through
the intervention of Lord Nairne, who entered a protest to the
effect that as Lord Mar " has right to be placed as high on the
list or BoU of Peers in Scotland as his ancestors the Earls of
Mar were placed ; and whereas from the records of Parliament
and other authorities it appears that the Earls of Mar sat in
the Parliaments of Scotland as Earls prior to the ancestors of
all or some of the Earls now placed above the said John Francis
Earl of Mar in the present Boll of the Peers of Scotland," he.
Lord Nairne, prayed " that the said John Francis Earl of Mar
may be hereafter restored to his proper place in the said Eoll
of the Peers of Scotland." Lord Nairne again protested in the
same terms on the 2d June 1825, — the Marquess of Queensberry
in the same terms in favour of John Thomas Earl of Mar, the
son and successor of Earl John, on the 13th July 1826, that he
may " be hereafter restored to his proper place on the Eoll ;"
the Earl of Northesk, in favour of John Francis MiUer Earl of

112 THE EAELDOM OF MAE. let. vm.
Mar, the son of John Thomas, in the same terms, 2d September
1830 ; Lord ColviUe of Culross, in the same terms, 14th
January 1833 — whUe John Francis Earl of Mar, the late Earl,
protested, in his own name, on the 24th August 1837, "that
the calling of any Earl's name before mine is contrary to the
well-known antiquity of the Earldom of Mar, and that there
fore no Scotch Earl's name should be called before mine."
And, again, on the 7th September 1847 he protested that, " see
ing by historical records that the Earldom of Mar is the most
ancient Scotch Earldom now extant, I, John Francis Earl of
Mar, hereby protest against any Scotch Earl's name being called
over before mine at the election of Eepresentative Peers for
Scotland." It thus appears that from the moment after the reversal of
the attainder in 1824 the ancient claim of the Earls of Mar as
heirs of the oldest Earldom in Scotland revived at once, — as it
had been left before the attainder, — a claim totaUy incompatible
throughout with the idea of a re-creation in 1565 ; and no one
entered a counter-protest, as might have been expected had the
reversal of the attainder proceeded, as suggested by Lord
Chelmsford and Lord Eedesdale, upon the theory that the
Earldom of Mar restored against attainder was a comparatively
modern creation, in 1565, and that John Francis Earl of Mar
was restored as " lineal representative '' of the attainted Earl,
not through that Earl's daughter and sole representative, but
through his (the forfeited Earl's) brother and heir-male col
lateral. On the contrary, I submit that these protests tend to
prove that the statement of the Act of Parliament, taken with
the Eeport of the officers of the Crown, in 1824, viz., that the
dignity was restored to John Francis Erskine as "grandson
and lineal representative " of the attainted Earl, is to be under
stood in its simple and natural sense, as representative through
lineal descent of the body of that Earl, necessarUy through his
daughter Lady Frances, she having been entitled to the dignity
of Countess in her own right, but for the attainder.
I should have laid little stress on this matter were it not
that the Act of 1824 and the Eeport of the officers of the
Crown . have been attempted to be turned against the heir-
general in a manner at variance with what I think he was
entitled to ; whereas they in reality, and especiaUy the Eeport,

LET. VIII. THE EAELDOM OF MAE. 113
are in keeping with every preceding judicial evidence as to the
descendibility of the ancient Earldom, including the Sutherland
Eeport of 1771, as depending in a distinctly appreciable degree
upon that descendibility, which, I may add, if not thus in
keeping, would have been unwarranted and unjust. Every
thing should be viewed in its due proportion ; and it must not
be supposed that in thus vindicating the officers of the Crown
and the Act of 1824, I admit that an acknowledgment or
admission by the Parliament, or rather by the Sovereign with
assent of Parliament, can have the force of a judicial determina
tion upon such a fact as is here in question. Everything con
nected with the descent of Mar was finally determined by the
Decreet of 1626 ; and every subsequent Act has to be tried by
that standard and criterion.
I have now traced the devolution of the Earldom of Mar
from the time of the Countess Isabel to the eve of the recent
claim of the Earl of KeUie ; and I have shown that during all
these many centuries the dignity went uniformly in the succes
sion of heirs-general, and a doubt was never entertained on the
subject by those competent to judge.
I have elsewhere quoted the words of that great feudal
lawyer, Mr. Eiddell, regarding the great antiquity of the
Earldom of Mar,^ and I may end this Letter by the words with
which Lord Hailes commences his proofs from the history of
Mar, — " This is one of the Earldoms whose origin is lost in its
antiquity. It existed before our records, and before the era of
genuine history." ' Supra, vol. i. p. 176.

VOL. II.

114 THE EAELDOM OP MAE. let. ix.

LETTEE IX.
LORD KELLIE'S CLAIM, AND THE RESOLUTION OF 1875.
We now enter upon another act in this prolonged drama,
which has still to be played out to its catastrophe.
On the death of John Francis MiUer Earl of Mar, the
great-grandson of the restored Earl, in June 1866, 'without
issue, John Francis Erskine Goodeve, Esq., only son of Lady
Frances Jemima Erskine, by marriage Goodeve, the deceased
Earl's eldest sister, and thus his next-of-kin and heir-at-law,
became lineal heir and representative of his great-grandfather,
the Earl restored in 1824 ; of Lady Frances, that Earl's mother,
who would have been Countess of Mar in her own right but
for the attainder; of Earl John, the Earl attainted in 1716,
Lady Frances's father ; of John Lord Erskine, restored as Earl
of Mar per modum justitiee in 1565 ; of Sir Bobert Erskine
Earl of Mar, in 1438, after his service as heir of the Countess
Isabel ; and of Gratney Earl of Mar, the common ancestor of
Earl Eobert and of the Countess Isabel, — in a word, heir-general
of the house of Mar. Time had run its determined course.
The succession which had passed from the original " De Marrs "
through the Douglases to the Erskines, and which the Erskines
had enjoyed as maternal heritage, and Ulustrated by their loyalty
and manly worth for four centuries, passed once more from
their name to that of another race, likewise as maternal heritage,
under the same identical destination and tenure. It is impos
sible not to feel regret on every such revolution; but it is
the common lot where the rule of female succession prevails;
and the sentiment attaching to it in the present instance
is the same as that which inspired the once familiar proverb
of tender remembrance, —
" Ilka thing hath its time ;
And sae had kings o' the Stewart line.''

LET. IX. THE EAELDOM OF MAE. 115
Stewart had succeeded Bruce, Bruce Baliol, BaUol the royal
race of Celtic Scotland.
The representation of the house of Erskine in the male
line, a representation totally distinct from that of the house of
Mar, devolved on the death of the late Earl, in 1866, upon
Walter Coningsby Erskine, Earl of KeUie, cousin-german of
the late Earl, as the son of Henry David Erskine, youngest
son of the restored Earl. Lord KeUie died in 1872, and was
succeeded by his son Walter Henry, the present Earl.
Mr. Goodeve, the heir-general, assumed the style and dig
nity of Earl of Mar, with the surname of Erskine, on his
uncle's death. His arms were matriculated as such in the
books of the Lord Lyon's Office in Edinburgh on the 13th
October 1866; and he was duly served "as one and the elder
of the two nearest heirs-portioners in general " to his late uncle,
John Francis MiUer, Earl of Mar, on the 4th March 1867.
Not a doubt was entertained at the time by the highest autho
rities in Scottish law that Mr. Goodeve Erskine was lawful
Earl of Mar.
Mr. Goodeve was not only warranted in assuming the dig
nity of Earl of Mar by Scottish law, but by that law, as already
exhibited, the dignity devolved upon him malgr^ lui, after
due establishment of his propinquity. Strong commiseration
has been expressed, and gracefuUy expressed, by Lord Cairns,
subsequently to the Eeport of 1875, on the ground that "that
gentleman had been supposed to be the person entitled to the
peerage of Mar ; he had been accepted as such by all who were
related to the famUy, and, among the rest, by that particidar
famUy who afterwards became his antagonists for the title.
They had received him as the proper heir to the older title,
and it was in that position that, after holding it for some
years, he found himself opposed by those who had in the
first instance admitted his claim." But while this is true
and does honour to the kind heart that prompted the words,
it does not go to the root of the matter. Lord Mar suc
ceeded precisely as if he had been the brother's son aud
next of kin, instead of the sister's son and next of kin, of the
deceased earl. It is nothing but the prejudice in favour of the
exclusive male succession — in which I fuUy myself share 
that can suggest any anomaly or impropriety in such assumption

116 THE EAELDOM OF MAE. let. ix.
Lord Mar entered into possession of the dignity, pace Lord
KeUie, and of aU the rights dependent on it, in obedience to
the legal presumption in favour of heirs-general in all cases of
Scottish heritage ; and he was, and is, entitled to recognition as
Earl of Mar from all men, till the heir-male can establish a pre
ferable right, through the adduction of legal proof that an ex
ception has been established in the case of Mar through a special
provision in favour of heirs-male as against the heir-general.
Whether Lord KelUe has succeeded in estabUshing such an
exception, the reader wUl judge ; but in the meanwhUe Lord
Mar's right to be recognised as in possession tUI a counter
right was established, with aU the consequences of that recog
nition, has been entirely lost sight of by the House of Lords,
as we shall presently see.
Walter Coningsby Earl of Kellie, the heir-male, claimed
the Earldom of Mar by petition to the Crown, dated the
23d May 1867. This petition was referred by Her Majesty
to the House of Lords in the usual manner, requiring them to
" examine the allegations thereof as to what relates to the
petitioner's title therein mentioned, and to inform Her Majesty
how the same shall appear to their Lordships." Lord Kellie
claimed the Earldom, not as the ancient and original Earldom
of Mar — which, if the evidence given up to this point be valid,
still exists in the heir-general — but as a comparatively modern
Earldom, affirmed, as I have repeatedly stated, to have been
created by Queen Mary in 1565 by a lost patent, subsequently
to the charter restoring the Comitatus of Mar, 23d June 1565;
and which patent being lost, the limitation was to be presumed,
according to the rule of the House of Lords, to have been in
favour of heirs-male of the body of the grantee, Lord KeUie,
the petitioner, being that heir-male.
Lord Mar petitioned the House, not the Sovereign, as being
not a claimant, in his own style and title as Earl of Mar, on the
17th July 1868, for leave to appear in opposition to the claim
of Lord Kellie, as trenching on his own right as actual tenant
in possession of the one and only Earldom of Mar on the
Union Eoll; and permission was accorded to him to do so.
But after a short time, he was ordered to expunge the title of
Earl of Mar from his Case, and to plead as a commoner. The
style of " opposing petitioner " was adopted as a sort of mmo-

LET. IX. THE EAELDOM OF MAE. 117
termine. The presumption was held throughout by the Com
mittee for Privileges to be in favour of Lord KeUie as heir-male,
and the onus of disproving Lord KeUie's claim thrown upon Lord
Mar as heir-general. All this I hold to have been Ulegal ; but
I reserve the detail, and my observations upon it, for the ensuing
Letter. With this preface I proceed to cite Lord KeUie's
narrative of what followed in the House of Lords, as in the
Letter now before me.
" The questions which the Committee were asked to decide
were three in number: — 1. Was the Earldom of Mar, which
now exists on the Eoll of Scotch Peers, and was held by the
Earl of Mar and Kellie, who died in 1866, a new grant by
Queen Mary, or a restoration by her of the ancient dignity ?
2. Was the dignity descendible to heirs-general, or was it
limited to heirs-male ? These questions were fully discussed by
the only competent tribunal, and an unanimous judgment pro
nounced upon them, which is final and irreversible. It would
therefore be a work of supererogation to say anything in support
of a judgment which requires no defence. . . . After the plead
ings of counsel were finished, the Committee took several
months to consider their judgment. The noble Lords who gave
judgment had sat on the case from the commencement to the
end of it; and when, on the 25th February 1875, they de
livered their decision, not only was their Eesolution unanimous,
but the ground of judgment, as given in the speeches of the
three noble Lords, was identical, viz., that the ancient title of
Mar was extinct, and the existing title was created by Queen
Mary, and limited to heirs-male. A short extract from each of
the speeches will show this : — Lord Chelmsford : ' Whether the
original dignity was territorial or not, or was or was not de
scendible to females, is wholly immaterial, inasmuch as it had
come to an end more than a century before Queen Mary's
time.' — Lord Redesdale: 'In 1460 the ancient Earldom was
treated by the King as extinct, for he created his son Earl of
Mar.' Again : ' This undisputed admission of the extinction
of the peerage by the Crown under six Sovereigns, and by six
Lords Erskine in succession, from the death of Alexander in
1435 to the grant by Queen Mary in 1565, a period of no less
than 130 years, must be looked upon as a settlement of the
question which it would be dangerous to disturb.' — Lord Chan-

118 THE EAELDOM OF MAE. let. ix.
cellor Cairns : ' I am of opinion that it is clearly proved that
the Earldom of Mar which now exists, was created by Queen
Mary between the 28th of July and the 1st of August 1565.
It appears to me perfectly obvious from every part of the evi
dence, that in the greater part of the month of July 1565, and
before that creation, there was no Earldom of Mar properly in
existence.' The Eesolution of the Committee was as foUows ;
— ' Besolved — That the petitioner, Walter Henry Earl of KeUie,
hath made out his claim to the honour and dignity of Earl of
Mar in the peerage of Scotland, created in 1565.' This Eesolu
tion was reported to the House, and approved of on the 26th of
February 1875, and the following Orders of the House were
passed upon it;" — but these I reserve for the foUowing Letter,
merely remarking that they were passed in the same breath
with the Eesolution just recited.
The answers of the Committee for PrivUeges to the two ques
tions formulated by Lord Kellie, as put to the Committee, may
be presented in their simplest form thus : — 1. The Earldom of
Mar which now exists on the Eoll of Scottish Peers, and
which was held by the Earl of Mar and KeUie who died in
1866, was a new creation by Queen Mary, and not the restora
tion by her of an ancient dignity ; and, 2. The new dignity so
created by Queen Mary was limited to heirs-male of the body,
and not descendible to heirs-general. These answers are
based, as I have fully recognised, on the traditional rules and
principles of the House of Lords, adopted since 1762 and 1771,
as governing their advice to the Crown, viz., that charters of a
dignified fief do not convey the title of honour without express
mention thereof, and that the presumption in aU cases of doubt
is in favour of heirs-male of the body of the original grantee,
and against the heirs-general; and also that the House of
Lords is entitled to disregard and set aside the final judgments
of the Court of Session proved before them, and the presump
tion of Scottish law. The various ruUngs or points of detail
throughout the Mar case, which I have noticed in the preceding
Letters, are governed throughout by these rules and principles.
But I too have put three questions of my own, which require
their answer — 1. Are the principles which I have appealed to
in my two Protests against the recent Eesolution and what
has followed upon it, and which I have vindicated in the

LET. IX. THE EAELDOM OF MAE. 119
second of these Letters, of binding obligation upon the House
of Lords, or not ? 2. If of binding obligation, have the House
of Lords observed and obeyed those principles in' reporting in
favour of Lord KelUe's claim to an Earldom of Mar created in
1565, as by their Eesolution ? And, 3. If the House have not
observed and obeyed these principles, but applied and enforced
the traditional in contradiction to these principles, and if these
traditional rules and principles, and the law of the land, are
thus in collision, which is to prevaU — not merely in the long-
run, but at present, in this particular case of Mar ? As regards
a minor point in Lord KeUie's observation, I need not repeat
that the question is not between myself and three noble Lords
whose "judgments" Lord Kellie alleges as conclusive, and
whose learning and just-mindedness I should be the last to ques
tion, but between the law of Scotland, and the binding autho
rity of judgments of the Court of Session, as protected and
enforced by the Treaty of Union, on the one hand, and a system
of doctrines contradictory of that law, that authopty, and that
Treaty — in a word, of a system, of which Lord Chelmsford,
Lord Bedesdale, and Lord Cairns have been simply, in this
Mar case, the hereditary spokesmen. I cannot allow myself
to be represented as speaking on my own authority in the pre
sence of Chancellors and ex-Chancellors. It is Lord Hailes,
Lord Stair, Sir Thomas Craig himself, the Kings and Parlia
ments of Scotland, the Supreme Civil Court of Scotland, and
even, from time to time. Lord Mansfield, and Lord Camden, and
the House of Lords, which followed their advice in the Suther
land claim of 1771, who testify on behalf of the heir-general
of Mar, and against Lord Kellie's pretensions.
I proceed now to examine the Besolution of 1875 and the
opinions of the noble and learned Lords, as given in their
speeches, by two crucial tests : Is that Besolution and are those
opinions in conformity with the views and the judgments pro
nounced by the Court of Session in the identical case of Mar
in 1626 ? And, simUarly, Are they in conformity with the law
of succession in Scottish heritage, including dignities, and the
presumption arising therefrom, as affirmed by the Court of
Session in the Oliphant judgment in 1633, to say nothing of
constitutional history and institutional authority, and which
would determine the present case, even had the judgment of

120 THE EAELDOM OF MAE. let. ix.
1626 never been pronounced ? I take the judgment of 1626
first, inasmuch as I have laid fundamental stress upon it in my
original Protests. It is impossible to avoid some repetition, and
for this I must apologise. But repetition has sometimes its
advantage, as exhibiting truth from the many sides of her
envisagement. I. The Battle of the Books is famous in Uterature. But the
Battle of the Charters ought to be stUI more famous in the
annals of the Scottish Peerage.
The question of 1875 turns, as the same question did in
1626 and 1565, on the respective validity of two Uttle scraps of
parchment, the charter of Isabel Countess of Mar dated the 12th
August 1404, and the subsequent charter by the same personage,
dated the 9th December 1404. If the former be vaUd, the
Earldom of Mar became extinct on the death of Alexander
Earl of Mar in 1435 ; the Crown was justified in resuming the
fief and the dignity, and deaUng with it, as it did thereafter, at
its pleasure; the Erskines were la-wfully excluded; Queen
Mary and her advisers in 1565, and ParUament in 1587, were
totaUy wrong in holding the contrary view ; and the grant in
1565, which Mary styles a restitution, and which proceeds ^er
modum justitiee, not gratice, was a new and uncaUed-for grant-
necessarily of a new Earldom — although not necessarUy, for
reasons already given from Scottish law, in favour of heirs-
male ; but, even on the theory of a lost charter, descendible to
heirs-general. If, on the other hand, the later charter of the
9th December 1404 be vaUd, then the reverse obtains, as set
forth in the preceding pages : the grant in 1565 was simply a
restitution of what had been unjustly and fraudulently with
held from the lawful owner — John Lord Erskine was replaced
in the position of the Countess Isabel under the same right of
next heir which had been recognised in his ancestor Bobert Earl
of Mar by a lawful inquest in 1438 ; the succession continued
in the line of the heirs-general ; and the heir-general is now
Earl of Mar under the original and only dignity as held by the
Countess Isabel in 1404 — while he would have an equal right,
as pointed out by the law officers ofthe Cro'wn in 1874, under
the aUeged new creation of 1565, founded on by Lord Kelhe,
who is absolutely excluded, either way, from the inheritance,
— if it ever had existed.

let. IX. THE EAELDOM OF MAE. 121
Such being the question between the two charters, what is
the test of validity as between them ? This is determined by
law and by authority in favour of the later charter, that of
the 9th December 1404 ; in other words, in favour of the heir-
general, on a principle already noticed : —
1. No alienation of a fief held in capite of the Crown is valid
unless previously sanctioned or subsequently confirmed
by the superior, who was in the Mar case the Sovereign.
The charter of 12th August 1404, extorted as has been
shown from the Countess Isabel, and which worked in
justice not only against the Countess's heirs on her
mother's side, the Erskines, but against her heirs on her
father's side, the Douglases, and upon herself, as well as
transferring rights of the Crown to others without the con
sent of the Crown, was never sanctioned or confirmed by
the Sovereign, and was subsequently renounced and
abandoned by the man himself, Alexander Stewart, who
had extorted it. But the charter of the 9th December
1404, which committed no injustice, and reserved the
rights of the Countess's heirs and other parties, was
duly sanctioned and confirmed by the Sovereign by
charter 21st January 1404-5. This latter charter, thus
confirmed, is therefore the only legal conveyance, and
was recognised as such in 1565, in 1587, and by the
Eoyal Commissioners who issued the Decreet of Bank
ing in 1606 — aU previously to the great decreet of 1626,
and subsequently to the decreet by the heirs-male of the
family themselves, as I have shown, in 1739; and by
the House of Lords, as also shown, in 1771, when the
Eeport in the Sutherland case, favourable to the heirs-
general, went, in psirt, on such recognition — and in 1824.
2. This view of the law, as applicable to the case now in
question, is laid down and enforced, as the reader wUl
recoUect, by the Supreme CivU Court in the great Mar
and Elphinstone case, so repeatedly noticed, in 1626 :
when the Lords sustained the validity of the charter 9th
December 1404, confirmed by the charter 21st January
1404-5, as against the charter 12th August, which was
not confirmed — the foundation-stone of Elphinstone's
right — declaring the former and all that foUowed it valid,

122 THE EAELDOM OF MAE. let. ix.
the latter and aU that foUowed it invalid — recognising
the retour and the status of Bobert Earl of Mar in 1438
to have been valid in consequence, and the annulment
of that retour by the inquest of 1457 to have been in
valid, because that annulment was based on rejection of
the later and dependence upon the earlier unconfirmed
charter ; and stigmatising the exclusion of the heirs-
general, the Erskines, by the Crown subsequently to
1435 and tUl 1565, as iUegal and unjust, because the
Crown had. no right of property in the Earldom, but mere
possession, during that interval. The noble and learned
Lords who advised the House of Lords in 1875 held
that this decreet affected only the fief and not the
dignity, on the ground that the dignity is not speciaUy
mentioned in the charters of 1404, in accordance 'with
Lord Camden's rule ; but I have shown in the Second
and Fifth of these Letters how untenable that rule is :
and the very fact that Bobert Earl of Mar was recognised
as such in the Act of 1587, and that the Decreet of
Banking proceeded upon the charter 9th December 1404
and what foUowed upon it as grounds for precedency,
testifying, no less than the recognition of Bobert Earl
of Mar in the decreet of 1626, that the fief dealt with
was a dignified fief, which carried the dignity under due
sanction from the Crown without any special mention
of it, as I have previously explained, as substance
carries shadow. The result is that the present Earl
of Mar stood in 1866 in precisely the same situation
with reference to Lord KeUie as his ancestor Johu Earl
of Mar stood with reference to Lord Elphinstone in 1626.
The question brought up by Lord KeUie in 1875 has
been res judicata since 1626 — the judgment was binding
upon the House of Lords to such an extent that they
were precluded ab initio from discussing Lord KeUie's
claim upon the grounds upon which he advanced it, in
asmuch as it is a case in which, in Lord Eldon's words
upon a Scottish appeal case, a competent decision " has
removed out of the way all argument and all principle,
so as to make it impossible to apply them " — of course,
legally — " to the case before the House." The result is.

let. ix. the EAELDOM OF MAE. 123
that, tried by the decreet of 1626, a crucial test, the
Besolution of 1875 and the opinion of those who moved
that Besolution in favour of Lord Kellie, are shown to
be erroneous ;_ and the right which they have affirmed
in favour of Lord Kellie is, by the decreet, in Lord Mar.
But, on the other hand,
II. If there had been no such judgment as that of 1626 on
the special case of Mar to bind the Committee for Privileges in
1875, and discussion had been admissible, the House would
have been equally bound to report against Lord Kellie, in
deference to the solemn affirmation of the law of succession, as
governing similar cases, as expressed by the final judgment of
the Court of Session in the Oliphant case in 1633, to the effect
that " use " is " enough, conform to the laws of this realm, to
transmit such titles in the heirs-female, where the last defunct
had no male children, and where there " is " no writ extant to
exclude the female," — to say nothing of the consecutive series
of testimoiues from the public Acts and institutional writers of
Scotland, which the House is presumed to be familiar with, and
which, as I have shown, they actuaUy recognised in the case of
Mar in 1771.
Such, then, being the test as between the rival charters of
the 12th August and the 9th December 1404, as applied by
the judgment of the Court of Session in 1626, and which is
decisive on the merits of Lord KeUie's claim, it stands out on
the speeches of the noble and learned Lords who advised the
Committee of Privileges in 1875, that (except in regard to one
comparatively unimportant point) they overlooked the decreet
of 1626 altogether, tacitly repudiating the binding force of
that decreet, as their predecessor Lord St. Leonards had avow
edly repudiated that force in the parallel case of the Glencairn
and Eglinton decreet of 1648 in the Montrose claim of 1853 ;
and that they affirmed the validity of the extorted and uncon
firmed charter 12th August 1404 — Lord Chelmsford avowedly
and Lord Eedesdale infereutiaUy — as against the later con
firmed and therefore only valid charter of the 9th December
1404, in apparently unconscious but practical reversal of the
judgment of 1626 — that judgment being to the effect that the
earlier charter was invalid because not confirmed, and the
later charter valid because confirmed by the sovereign supe-

124 THE EAELDOM OF MAE. let. ix.
rior; in other words, assuming that Isabel, a Crown vassal,
could alienate her fief, with the dignity annexed to it, to a
stranger without authority from her overlord, and thus impose
a vassal and his heirs upon his recognition, apart from his
cognisance or consent, in place of herself and her own heirs — a
thing absolutely unheard of ia feudal law. It is not wonderful
that the laws and usages attaching to feudal dignities should
be unfamiliar to a Committee for Privileges in the present day,
nor is it every Scottish lawyer to whom they are famiUar ; but
the evidence of all this was in print in the Minutes and under
the eye of the House, to say nothing of the Sutherland Case of
Lord Hailes, which no judge or adviser in such cases can be
presumed to be unacquainted with; and if the Committee
under such advantages have misapprehended the law. Lord
Mar and the cause of truth must not be the sufferers. The
result they came to in 1875 was that which the Court of Session
in 1626 rejected as pleaded for by Lord Elphinstone (with, I
must be allowed to say, the same e-vidence before them which
has been lately before the House of Lords), viz., that the original
earldom was extinguished ; and when the question presented
itself how the earldom continuously existing since 1565 came
into existence, and what was its Umitation, they appUed the
traditional doctrine of the House (as we have seen) to its
solution. It may be well to specify one or more of the steps by which
they reached this conclusion: — First — whereas by Scottish
usage, as I have shown in a former page, a charter of Comi
tatus, i-C- of what is called a " territorial earldom " or dignified
fief, carried the dignity annexed to the chief messuage without
any special mention of the title, the shadow foUowing the sub
stance, and this to a later date than 1565 — the charter of the
Comitatus of Mar 23d June 1565 thus conveying what is now
caUed the title, which the grantee duly received after feudal
investiture, the House of Lords, on the other hand, appUed
Lord Camden's rule affirmed in 1771, viz., that no charter of a
Comitatus shall be held to convey the title unless the latter be
specially mentioned in the charter, and thus removed the
charter of the Comitatus of Mar 23d June 1565 out of the field
of consideration as a grant of dignity. The second stage was
to presume a contemporary creation of the dignity of Earl of

let. ix. the EAELDOM OF MAE. 125
Mar, as a personal honour independently of territory, by a
patent — " probably by charter," but patent under such circum
stances would be the more correct word — which has been lost
— a presumption which I have shown in a former page was not
aUowable on such easy considerations in Scottish law, and had
in fact been rejected by the House when urged by Sir Eobert
Gordon in 1771, to say nothing of its rejection by the Court of
Session (except under conditions prescribed in such cases by
law) in the Glencairn and Eglinton case in 1648. And, thirdly,
they laid it down, that, no evidence existing respecting this
charter of 1565 creating the peerage, the limitation must have
been to heirs-male of the body, or by the principle adopted by
the House in the CassUlis case in 1762, and, in Lord Lough
borough's words in 1797, "anxiously adhered to ever since,"
although in contradiction to the final and binding judgment on
the point in the Oliphant case in 1633, which Lords Hardwicke
and Mansfield overruled in 1762, and Lords Mansfield and
Camden in 1771, and which has equally been held aloof from
ever since. Whereas, as I have already said, even if the judg
ment of 1626 had never been pronounced, the Scottish law of
succession, as affirmed by that judgment, would have deter
mined the question of Mar in favour of the heir-general. Every
minor point occurring in the case was governed and ruled in
favour of the heir-male and against the heir-general, upon the
general principle of 1762 above stated.
I pause at this point to remark that I do not know that the
inevitable propagation of error by error can be Ulustrated more
strongly than by the concluding argument in Lord Bedesdale's
speech, in applying the preceding principles : — " There cannot
be any doubt," he observed, " of the barony of Erskine going to
heirs-male under the presumption before-mentioned,"— " the
presumption," that is, " in favour of heirs-male," — " and the same
presumption leads me to consider that when John Lord Erskine
was created Earl of Mar, that Earldom must be held to go with
the barony to heUs-male." This argument, I may interpose, is
the same with that upon which Lord Mansfield advised the
House in the CassiUis claim in reference to a supposed charter
of regrant of the Earldom of CassUlis in favour of heirs-general,
but in which the title of Lord Kennedy was not included, — " If
. . . this charter was to operate as a new creation, the title of

126 THE EAELDOM OF MAE. let. ix.
Lord Kennedy must go one way, and that of Earl of CassUlis be
separated and go in a different channeL But it is not possible
to beUeve that this could ever be intended." The argument
would be a very good one if the premises on which it is based
were solid, but this is not the case. Th e argument from presump
tion tells, I fear, in precisely the contrary direction from that
indicated by Lord Eedesdale, when grounded upon the Scottish
law of succession — the hypothesis of the earldom being a re
creation in 1565 being assumed, of course, pro argumenta, &s,
correct. By the law and presumption of Scotland the barony
of Erskine, the patent being lost, and the original limitation
unknown, goes indubitably to the heir-general, i.e. to Lord Mar,
unless it can be shown that it has passed over a female to go
to an heir-male collateral on some former occasion, or that the
limitation of the principal fief of the famUy at the time when
the barony first appears was to heirs-male ; and if this cannot
be shown, then the presumption from the one dignity to the
other, from the earUer creation to the later, would be, that the
Earldom of Mar, being granted by Queen Mary as an enhance
ment of dignity upon the previously existing barony, the Umi
tation of the Earldom must be presumed to be the same as that
of the barony, and thus to heirs-general. And upon this once
more the presumption would follow, equaUy acted upon by the
House of Lords on former occasions, that — as it cannot be
supposed that it was in contemplation that the newly created
earldom, founded on the barony, should go to heirs-male, and
the estate to heirs-general, so as, under a not improbable con
tingency, to deprive the earldom and barony of the property
necessary for their support — the destination of the estates
granted contemporaneously with the personal earldom must
have been, or would be found on inquiry to have been, Umited
to heirs-general, with the view of securing the perpetuation of
the dignity and the estates in the same line of descent. It was
upon this presumption that Lord Mansfield advised the House
in the Cassillis claim, that " if the lands were limited to heirs-
male, the title of honour cannot be supposed to descend in a
different channel from the lands of the charter." As it actuaUy
happens in the present case, the charter of the " Comitatus "
23d June 1565 is destined "hseredibus," or to heirs-general; so
that the presumption under the Scottish law as to the descent

let. ix. the EAELDOM OP MAE. 127
ofthe dignity under the hypothesis of a new creation in 1565
is actuaUy justified by the existing evidence as to the descent
of the estates ; and all is in connection and harmony, and in
accordance with the principle founded on by Lord Mansfield.
On the other hand, according to the presumption of the House
of Lords, and of Lord Bedesdale, the estate would go one way,
to heirs-general, and the two dignities of Erskine and Mar
another way, viz., to heirs-male, under conditions of absolute
pauperism in the contingency contemplated. But, throwing
aside the preceding hypothesis, and looking to the state of
things as above estabUshed by the Ught of Scottish law and
the judgment of 1626, the Earldom of Mar, restored in 1565,
came to the Erskines as originally maternal heritage, and
therefore might descend in the same channel of heirs-general,
whether or not the barony and estates of Erskine were so
limited. The Earldom of Mar was not by that law a dignity
superimposed upon the Lordship of Erskine, and thus in the
same boat, as affirmed by Lord Bedesdale.
I have further to remark and enforce, before winding up
this Letter, that the fact of the recognition of the Earldom of
Mar, fief and dignity, as legally continuous in the heirs-general
from the days of the Countess Isabel, as shown by the Act of
Parliament 1587, by the Decreet of Banking of 1606, by the
series of protests for precedency over aU the earls of Scotland,
ranging from 1639 to 1705, by the evidence of the heirs-male
of the famUy to this point afforded by the disposition of 1739,
by the actual recognition of the earldom as one of the ten
ancient earldoms descendible to heirs-general, upon which
Lords Mansfield and Camden advised the House against the
claim of Sir Bobert Gordon and in favour of the infant Countess
of Sutherland ; and, lastly, by the actual language of the Act
of reversal of attainder in 1824, even independently of the
preceding but excluded Eeport of the law officers of the Crown
— all these proofs resolving into one great collective fact,
establishing a chain of unanimous legal recognition down to
1875 — was either overlooked, denied, or explained in a sense
adverse to what I have demonstrated to have been their real
import by Scottish law in this case of Mar. That the noble
and learned Lords, and the noble Lords who delivered these
opinions, especially Lord Chelmsford and Lord Cairns, took

128 THE EAELDOM OF MAE. let. ix.
pains and trouble, with the evidence before them in print, for
several months, to ascertain the truth — the claim having been,
moreover, before the Committee for upwards of eight years, as
affirmed by Lord Kellie, cannot for a moment be questioned —
it was very different from the Montrose case, in which the
hearing began on the 18th July, and the case was shuffled out
of the House by a Eesolution on the 5th August 1853, before
the evidence had been printed, much less exanuned and con
sidered as before the House. There was nothing in the Mar
case of such precipitancy ; and, as I have said again and again,
but I can never be weary of repeating, it is the traditional
system of doctrine adopted by the House of Lords in 1762, and
the principle of holding themselves entitled to disregard the
final decreets of the Court of Session pronounced before the
Union, as adopted in 1762, 1797, and 1853, which has been
responsible for this, and for the miscarriage of justice generaUy
against which I have protested, and not the noble and learned
Lords who, with every intention to advise the Crown correctly,
have thus fallen into error. In the CassiUis and Sutherland
cases, the House reported in favour of the rightful claimants on
wrong grounds; in the present, where there was only one
claimant. Lord Kellie, they have reported on equaUy -wrong
grounds in favour of a claim to a dignity which never did nor
ever can exist, and in favour of a man who has not the sUghtest
pretension to it by Scottish law.
I cannot but take notice once more in this place, that the
House came to their Eesolution in direct opposition to the
advice of the law officers of the Crown, the Attorney- General,
and the SoUcitor-General for Scotland, the former of whom,
speaking for the Solicitor-General and himself, concluded his
address on the 16th June 1874, as foUows: — "On the part of
the Crown all I can submit to your Lordships is this : that,
having regard to all the surrounding circumstances, it becomes
immaterial to consider whether there was a re-creation or a
restoration to the dignity of Earl of Mar in 1565; inasmuch
as, if it was a re-creation, the surrounding circumstances are
sufficient to indicate the intention that the dignity so created
should descend to heirs-general, and that it should not be Umited
to heirs-male. On the other hand, if it Avas a restoration of the
previous dignity, there is sufficient evidence in the case to

LET. IX. THE EAELDOM OF MAE. 129
show that that pre'vious dignity had been in like manner
descendible to heirs-general." In conformity with this high
authority, I observed in my Second Protest that "Lord Mar
would be entitled ... as heir of line to the Earldom of 1565,
were such a dignity in existence, no less than he is to the
ancient and existing Earldom holding its precedency from
1404" — applying this argument to a particular point which I
shall have to deal with in my next Letter, and need not insist
upon here.
It thus appears that the Besolution of 1875 and its rationes
are at daggers-drawn with the law as laid down, with respect
to the rival charters and the historical facts which preceded
and foUowed them, by the final and ruling decreet of 1626,
and by the Scottish law of succession generaUy, both as pro
tected by the Treaty of Union. As I have already asked.
Which is to prevail, the private doctrine of the House of
Lords, as applied in this particular Eesolution, or the law of
the land ? It is a question for futurity to settle. Meanwhile
I submit that I have vindicated my two Protests against Lord
KelUe's criticism.
It remains for me in terminating this Letter to caU atten
tion to the practical effect of the recent Eesolution of the
House of Lords. It cannot, as I have submitted, have the
slightest effect on the legal rights of the heir-general, inasmuch
as the House has never had authority to pronounce upon those
rights, as I shaU ere long show. But practically, and in the
action taken upon it — to be dealt with in the ensuing Letter —
that effect has been to restore the state of things which existed
between 1435 and 1565, and which Queen Mary in 1565,
Parliament in 1587, and the Court of Session in 1626 declared
to have been the result of cruelty, injustice, oppression, and
iniquity, to full vigour, against the heir and representative of
the man in whose favour Queen Mary intervened in 1565 — it
is now alleged, on erroneous information — to restore to him
— " restituere " — the rights which had been unjustly withheld
from his ancestors and himself tiU that time, — the Queen
declaring herself moved by conscience to do so, and her action
proceeding upon the solemn verdict of an inquest to the fore
going effect. Further, in the face of the censure passed by
the Court of Session in 1626, first, upon the action of Alex-
VOL. II. I

130 THE EAELDOM OF MAE. let. ix.
ander Stewart, subsequently Earl of Mar, in extorting the
charter of the 12th August 1404 from the Countess Isabel,
and resigning the Earldom when in possession as a mere Ufe-
renter, to James i. in 1426 ; and secondly, on James I. and his
successors, as dealing with the rightful heritage of the heirs-
general, the Erskines, as if their own property, on the grounds
of law above detailed, the House of Lords has acquitted them
aU, justified every step taken against the heirs-general by men
" non habentes potcstatem," and (so far as they have power)
have excluded Isabel's present representative, whom I am
bound as a loyal subject and a good citizen to term the one
and only Earl of Mar, from his inheritance — given it to one a
legal stranger — and reduced himself — if not from the status of
a Baron or Lord of Parliament, as Lord Erskine — from the
status of Earl; whUe, as I shall show, they have further
endeavoured to prevent his exercising his right of vote as such.
In short, in this nineteenth boasted century we have 'witnessed
not merely the vindication but, so far as is possible, the re-
imposition of the actions and injuries which moved Queen
Mary and her advisers and contemporaries to indignation and
sympathy, and which they — men of the most opposite factions
in the State — concurred towards redressing. If the noble and
learned Lords who advised the Committee for Pri'vUeges in 1875
are to be credited, the Court of Session in 1626, ParUament in
1587, and Queen Mary and her ad'visers in 1565, took a totally
erroneous view, alike of the law governing feudal succession
and the devolution of dignified fiefs held in capite of the Crown,
and of the historical circumstances of the 160 years interven
ing between 1564 and 1404, — it being reserved to the noble
and learned Lords in question for the first time — their prede
cessors in the House in 1771 having been equaUy bUnd with
Queen Mary — to correct the error. The Eoyal Commissioners
appointed by James vi. for settling the precedency, as they
did by the Decreet of 1606, took an equaUy false 'view in
favour of the house of Mar, induced thereto by the fraudu
lent suppression followed by wholesale destruction of docu
ments — which, nevertheless, all reappeared afterwards as
evidence in 1626, a fact overlooked in the speeches in Com
mittee. But, most marvellous of all, the Court of Session
were no less in error when, after a process lasting through

let. IX. THE EAELDOM OF MAE. 131
several years, and in the face of most formidable opposition,
on the part of the Crown vassals who had obtained portions of
the Earldom of Mar by gift from the Crown during 130 years
of usurpation, the Court determined by a decreet, final as being
in foro contentiosissimo, and ruling even at the present moment
as the foundation of rights to vast landed property, that the
pursuer, the Earl of Mar, 'was the real and rightful owner of
all these rights, and entitled to restitution in his character of
lineal representative of Eobert Earl of Mar, who flourished in
1438, and as heir and representative of the Countess Isabel,
the dependants, in actual possession of the property of which
they were thus deprived ; being so deprived, absolutely and
solely on the ground of the validity of Isabel's charter of the
9th December 1404, which the House of Lords has declared
to be invalid, as against the unconfirmed charter 12th August
1404, which the House has declared to be valid — the Court
being thus in error — the barons who were the defenders and
cast in the action having been unwarrantably dispossessed by
that decreet of their lands and superiorities, while the decreet
itself, which alone possesses the character of finaUty and
irreversibility which Lord KelUe attributes to the so-called
"judgment" of 1875, may be trodden under foot, and the
contention of the defeated parties enforced against the right
of the successful prosecutor — his heir-general, the Uneal heir
of Bobert Earl of Mar — in the present day. Strange as it
may appear, all this follows ex necessitate upon the premises
laid down by Lord Chelmsford, Lord Bedesdale, and Lord
Cairns, in their speeches upon Lord Kellie's claim. Everything
is consistent and consonant with law, justice, and history,
which springs from the charter of December — everything the
reverse which springs from that of August — 1404. Lord Mar
stands on the former — the House of Lords on the latter. Law
and the highest court of Scotland have pronounced in favour
of the former by an irreversible judgment. The House of
Lords have advised, the Crown in favour of the latter. I again
ask. Which is to prevail ?

132 THE EAELDOM OF MAE. let. x.

LETTEE X.
THE HEIR-GENERAL NOT A CLAIMANT.
I HAVE now brought this narrative down to the adoption by
the Committee for Privileges of their Besolution upon Lord
KeUie's claim on the 25th February 1875. WhUe vindicating
my Protests in point of principle, I trust that I have equaUy
vindicated myself against any suspicion of personal disrespect
for those who formulated the Besolution, although I may
acknowledge prior claims on my deference on the part of
elder authorities in Scottish Peerage Law. I have sketched
the practical effect of the Eesolution — or, in strictest accuracy,
of the views on which the Committee arrived at their resolu
tion — retrospectively, in so far as these 'views repudiated the
construction put by Mary Queen of Scots and her advisers in
1565, and by the Court of Session in 1626, upon the usurpa
tion of the earldom by the Crown from 1457 to 1565, and
upon the legal value of the extorted and unconfirmed charter
of the 12th August 1404. It remains for me to exhibit the
practical effect of the Eesolution prospectively upon the heir-
general, Lord Mar, from the 25th February 1875, the day on
which the Eesolution was passed, to the present moment.
Action was taken by the House of Lords in a series of Orders
issued upon the very next succeeding day, the 26th, when the
Besolution of the Committee was reported to, and approved by,
the House ; but I shall defer my narrative of what then took
place to the ensuing Letter, and, pausing upon the Eesolution
of the 25th, consider, as at the most convenient place, two
c[uestions suggested by Lord Kellie's Letter, which cover the
ground of discussion both before and after the Eesolution.
These questions are : — 1. By what right did the heir-general of
Mar originally assume and continue to assume and bear the
title of Earl of Mar, apart from any sanction on the part

let. X. THE EAELDOM OF MAE. 133
of the House of Lords, and subsequently to their Eeport in
favour of Lord KeUie ? And, 2. In what character did Lord
Mar appear before the House of Lords on the occasion of Lord
KeUie's claim? Upon the first of these points. Lord KeUie
affirms that the heir-general had no right to assume the dignity
apart from previous recognition by the House of Lords, aud
that his continuing to assume it after the judgment of the
House in his own favour is illegaL Under the second. Lord
Kellie affirms that Lord Mar appeared at the bar of the House
of Lords as a claimant of the dignity, between whom and him
self (Lord KeUie) the House were empowered to adjudicate,
and did adjudicate. I venture to hold and assert the direct
contrary on both these points. The two questions, and the
answers to be given to them, are most important ones, both in
the principles they appeal to, and in their practical bearing
as affecting the construction we must put upon the legality of
the action taken by the House with reference to Lord KeUie's
appearance before them during the recent claim and since. I
shaU, as in former cases, state Lord Kellie's views upon the two
questions in his own words, before vindicating my own : —
1. Lord Kellie, in his Letter, not only blames Lord Mar for
having thus assumed the title, but takes strong exception to
my recognising him as justified in doing so. " Lord Crawford,"
he says, " has thought it consistent 'with his position as a peer
of Scotland, not only twice to protest against my right to vote
as Earl of Mar, and to ascribe that title to the defeated claim
ant, but has taken the unprecedented course, in concert with
that defeated claimant, of endeavouring to induce other peers
to foUow his example," etc. " Mr. Goodeve's assumption of
the title was irregular from the first, and his continuance of it
in defiance of the judgment of the House of Lords is Ulegal."
" Mr. Goodeve, ... in addition to assuming the title, . . .
also added the name of Erskine to his patronymic." " Lord
Crawford maintains that Mr. Goodeve Erskine is in possession
of the Earldom of Mar, and cannot be dispossessed of it. I
have shown that he merely assumed the title without any
authority, and continues to make use of it in defiance of the
judgment of the House of Lords. It may be true that, in an
undisputed case of succession to a Scotch Peerage no formal
claim to the House of Lords is necessary ; but it is absurd to

134 THE EAELDOM OF MAE. let. x.
argue that this applies in a disputed case. The result of such
an argument would be that, in every case of a Scotch Peerage,
no patent for which existed, in the event of the holder dying,
and his heir-male and heir-general being different persons, each
of these persons might assume the title on different grounds,
and no authority could dispossess either of them. Such is
Lord Crawford's contention, carried to its logical conclusion ;
and, I confess, I cannot conceive anything more Ukely to cast
ridicule on the Peerage of Scotland." Lord KeUie contrasts
Lord Mar's conduct with that of Lord March in the CassiUis
claim : — " The heir-female in that case was the Earl of March,
who, like Mr. Goodeve Erskine, had assumed the title. The
heir-male was successful ; and the Earl of March, unUke Mr.
Goodeve Erskine, acquiesced in the judgment, and dropped
the title."
2. With respect to the character of " claimant," the " de
feated claimant," " disappointed claimant," of the Earldom of
Mar (the Earldom there spoken of being the original dignity,
not the modern Earldom alleged to have been created in 1565)
before the House of Lords, as persistently attributed to the
heir-general in the Letter now before me. Lord KeUie writes as
follows, and I am glad that I am thus enabled to place the
facts he specifies before the reader in his own words, which
will supply their best comment : — " Mr. Goodeve Erskine
obtained leave to appear in opposition " — i.e. to Lord KeUie's
claim before the Committee for Privileges ; " and in his peti
tion, and also in his printed case, styled himself Earl of Mar;
but on this fact being brought to the notice of the Committee,
he and his counsel were told that it was an improper assump
tion, and on his subsequently lodging an Additional Case, in
which he was styled Earl of Mar, he was ordered to amend the
style by inserting the words 'claiming to be' before the
' Earl of Mar.' On one occasion he personaUy appeared at the
bar of the House of Lords without counsel or agents, when he
persisted in styling himself ' thirty-fifth Earl of Mar.' But
Lord Chancellor Hatherley informed him that he must see the
extreme absurdity of admitting him as Earl of Mar, which
was a fact to be proved. On Mr. Goodeve Erskine's still per
sisting that he was Earl of Mar, the Lord Chancellor said,
' You are under a foolish mistake ; that is one of the misfor-

LET. X. THE EAELDOM OF MAE. 135
tunes of your not beiug advised. You may watch the case as
a claimant.' On several subsequent occasions when Mr.
Goodeve Erskine's counsel ventured to allude to him as Earl of
Mar, they were interrupted by several law Lords, aud informed
that that style could not be aUowed. At one stage of the pro
ceedings, when a question was raised as to the proper mode of
correcting the headings of the printed cases for Mr. Goodeve
Erskine, in which he was styled Earl of Mar, Lord Colonsay
suggested that he must underline the words ' claiming to be '
before 'Earl of Mar.' The case then proceeded with Mr.
Goodeve Erskine as a mere claimant." I may observe en
passant that Lord Hatherley's words, " You may watch the case
as a claimant," could not invest Lord Mar nolens volens with
that character, which moreover implies a petition to the Sove
reign, not the House of Lords, a fact overlooked throughout,
alike by Lord Kellie and by all who caU him a claimant ; and
it is matter of justice to point out that in the speeches of the
noble and learned Lords, and the noble Lord who addressed the
Committee for Privileges, as well as during the proceedings
generally, he was spoken of as " the opposing petitioner," which
was undoubtedly so far his actual character. The Ught, never
theless, in which Lord Mar has been constantly spoken of by
those who disaUow his right, and pre-eminently so by Lord
KelUe as above shown, is that of one defeated in a competition
for the dignity with the latter. Lord Kellie, — a representation
quite incorrect, aud calculated to engender most unjust prejudice.
It is not, as wUl be perceived, without cause that I lay stress upon
these two points — Lord Mar's actual status in the eye of the
law as Earl of Mar tiU a provision in favour of the heir-male
shaU be proved against him ; and his having appeared before
the House of Lords in defence of his hereditary rights as
assailed by the heir-male. Lord Kellie, not as a claimant of
them, and far less of the Earldom alleged by Lord Kellie to
have been created in 1565.
The words in my two Protests bearing upon these two
questions, and against which Lord Kellie's criticisms are
directed, are as follows : — In the first Protest, lodged on the
occasion of the election which followed first after the Besolu
tion of the 25th February 1875, I wrote thus, — "John Francis
Erskine, sister's son and heir-general of John Francis MUler,

136 THE EAELDOM OF MAE. let. x.
late Earl of Mar, the grandson and representative of John
Francis Earl of Mar, restored in 1824, having legally qualified
himself as successor to his uncle in the dignity according to
the form competent to the Peers of Scotland, and being thus
legally in possession, and being in no possible way required to
submit his right to the consideration of a Committee of Pri'vi-
leges under the circumstances above stated, is now dejure and
de facto Earl of Mar by the laws of Scotland, reserved iu'violate
by the Treaty of Union, is on the preceding grounds alone
entitled to vote ... as Earl of Mar," etc. etc. And in my
second Protest, — " He (Lord Mar) never claimed, nor was imder
any necessity to claim, a dignity of which he is in actual pos
session by the law of the land." I have now to vindicate these
assertions, and meet Lord KelUe's objections, as above set
forth. 1. On the first question, involving Lord Mar's status as Earl
of Mar from the period of his uncle's death, and at the present
moment, notwithstanding the Eeport of the House of Lords in
favour of Lord KeUie, and the Order that foUowed upon it,
hereafter to be dealt with, my answer must have been antici
pated by every one who has read and appreciated the proofs
given in the second of these Letters of the law of succession in
Scotland. There is no distinction in the laws governing the
descent of lands and honours, unless indeed this, that, whUe the
possession of lands through hereditary succession must be
legaUsed by certain forms of investiture, dignities pass at once
to the heir jure sanguinis, without any intervention of the law
being necessary. In the case of landed heritage, a maternal
nephew, the next of kin, succeeds to his uncle, the latter dying
without issue, as his heir-at-law, as a matter of course, unless
he is excluded by settlement in favour of the collateral male
heir ; and a maternal nephew, the next of kin, succeeds to his
uncle, the latter dying without issue, in his dignity in the same
manner, unless excluded by charter, patent, or other writ, in
favour of heirs-male. In both cases, and especiaUy in digni
ties, it is open to the heir-male collateral to prove such
exclusion of the heir-general in his favour, as constituting an
exception to the course of the common law, by distinct and
proper evidence ; but till that is proved, the heir-at-law is in
possession ; and the doctrine of the indefeasibility of dignities.

LET. X. THE EAELDOM OF MAE. 137
famUiar to English, is unknown to Scottish law. The difficulty
of appreciating Lord Mar's position lies in the prejudice exist
ing in the minds of many in favour of the exclusive male
succession iu dignities and estates. As I have more than once
said, I share in it strongly myself ; but, as matter of fact, as
already shown, the rule and presumption of Scottish law is
against it, although the law tolerates the exception ; and we
are thus compeUed to admit that in the eye of the law a
maternal nephew succeeding to his uncle in the way Lord Mar
did to the late Earl, differs in no respect from a paternal
nephew succeeding to his uncle in that capacity, as so many
peers of Scotland have done in the natural course of succession
by undoubted right and without question. It cannot be too
strongly enforced, that the presumption of Scottish law is in
favour of the lineal heir as against the coUateral.
But, apart from the general law which determines Lord
Mar's right, it must be remembered here that the question of
the right of succession is res judicata in his case. The decreet
of 1626, coupled with the acknowledged fact that the Earldom
of Mar was never legally resigned to a Scottish King for re
grant with a limitation restrictive to heirs-male (the charter
of 1426 being, as has been shown, illegal, null, and void),
estabUshes the succession in the heirs -general, descending from
Bobert Earl of Mar, the heir-general of the Countess Isabel,
and Lord Mar's direct ancestor. There exists nothing, there
fore, to interrupt or hinder the immediate devolution of the
dignity upon the heir-general in the person of Lord Mar, on
the death of the late Earl. On the contrary. Lord Mar could
not help himself — the dignity settled upon his shoulders as a
mantle he could not legaUy shake off, even had he wished it.
Moreover, the idea of the descendibility of the title to heirs-
male as a new creation in 1565, had been actually repudiated
by Lord Mansfield and Lord Camden in the Sutherland claim
in 1771, when asserted by Sir Bobert Gordon, as already stated.
And, lastly, if the late Lord Mar's grandfather, John Francis
Earl of Mar, restored in 1824, was not so restored in right of
his mother Lady Frances, the King, the officers of the Crown,
the Prime Minister, and the Houses of Parliament, aU con
curred in passing an Act the ratio of which was at variance
with the actual status of the person whom it was intended to

138 THE EAELDOM OF MAE. let. x.
benefit. Lord Mar, in fine, did simply, iu assuming the dig
nity, what Scottish peers succeeding as heirs-general invariably
did in former times, even although only remotely connected
with the last possessor, law and usage invariably recognising
the right of the heir-general tiU disproved by an heir-male.
The case cited by Lord Kellie of the Earl of March, who
assumed the title of Earl of CassiUis as heir-general on the
death of the preceding Earl, a very distant relation, Ulustrates
the usage. Lord March dropped the title, inasmuch as the
Eeport of the House of Lords was in favour of the heir-male,
and rightly so, although the advice tendered to that effect to the
Committee (by Lord Mansfield at least) proceeded, as I have
already stated, on erroneous grounds. Moreover, he had clauned
the dignity by petition to the Crown, and in so doing may be
held to have to a certain extent recognised the authority of the
Crown to decide on his pretensions — although, of course, in
conformity with law. But Lord Mar, to anticipate by a
moment what I have next to state, has never been a claimant.
The compUcation which Lord KeUie sketches, in the event of
two competitors, the heir-male and the heir-general, assuming
the same title on the succession opening to a peerage, the
patent of which is lost and the destination unkno'wn, and
which he imagines would cast ridicule on the Scottish peerage,
proceeds upon the faUacy that both would be equaUy entitled
— or disentitled — to assume it ; whereas (as 'wiU have already
been seen) upon such assumption it would only be competent to
the heir-general under the presumption of law ; whUe it would
not be competent to the heir-male coUateral, and such assump
tion would be on his own responsibility. It might be ad'visable
and consistent with self-respect for an heir claiming to succeed
a peer to whom he was but very distantly related, to abstain
from assuming the title till a declarator had been obtained in
his favour from sufficient authority ; but such could never be
considered as a course proper to be observed in the case of a
relationship so immediate and so indisputable as that of Lord
Mar to his late uncle. The Earl of Bosebery in 1822 carried
a Besolution in the House of Lords, that in the case of a
nephew of a Scottish peer succeeding to his uncle, the nephew
should not be allowed to vote as a peer till the House of Lords
had determined that his right was good — a Besolution which

LET. X. THE EAELDOM OF MAE. 139
was distinctly ultra vires of the House, and which was re
scinded at the instance of the Duke of Buccleuch in 1862,
after ha'ving been found inoperative. If, therefore, to revert
to an Ulustration above given, a paternal nephew thus suc
ceeds and is recognised as a matter of course as heir to his
uncle, a Scottish peer dying without issue, a maternal nephew
being the next of kin, in Lord Mar's case, is equally entitled
so to succeed and to be recognised, 'vrith all the pri-vileges
attendant upon such recognition, under the sanction of the
law of Scotland above indicated.
2. Turning to the second question suggested by Lord Kellie's
Letter, viz., In what character did Lord Mar appear before
the House of Lords on the occasion of Lord KelUe's claim ? —
that character being, as he affirms, that of a claimant, an un
successful claimant. I have to remark that it is impossible to
imagine a more fundamental error, or one leading to more cruel
and unjust consequences, than that upon which this represen
tation is grounded.
I have already quoted in part the remonstrance against this
representation which I have made in my recent or second
Protest at Holyrood. It is in full as foUows : — " It is im
portant, in fine, to observe that the present Earl of Mar does
not stand in the position of an unsuccessful claimant of a
dormant dignity. When the Earl of KelUe petitioned the
Sovereign for recognition of his right to an Earldom of Mar,
inferred to have been created in 1565, and the Sovereign re
ferred his petition to the House of Lords for their opinion and
advice. Lord Mar appeared in opposition to a claim which,
although the dignity claimed was one of which he denies the
existence, trenched nevertheless upon his right as tenant of
the original and only Earldom of Mar. But he never claimed,
nor was under any necessity to claim, a dignity of which he is
in actual possession by the law of Scotland," etc.
Wha.t I have now to say must be prefaced by a reference
to what I have already shown as to the Umitation attendant
on the intervention of the House of Lords in dignities, as laid
down by Lord Chelmsford, following in the steps of older
authorities, in the WUtes claim ; and as to the value attribut
able to the speeches of the noble and learned Lords who advise
Committees for Privileges, and the restriction upon the ter-

140 THE EAELDOM OF MAE. let. x.
minology of the Eesolutions, as adopted by the House and
reported to the Sovereign. Lord Mar's position before the
House of Lords was and is this : — 1. He has never petitioned
the Sovereign for recognition of the dignity which he holds as
vested in his person by law. 2. The Sovereign consequently
has referred no petition on his part to the House of Lords —
apart from which reference the House has no authority to act
in any way in the matter. 3. Although the Earl of Kelhe
has claimed by petition to the Sovereign, referred by Her
Majesty to the House of Lords under the conditions above
indicated, an Earldom of Mar, it was expressly as a new
creation in 1565, and distinct in every respect from the ancient
dignity held by Lord Mar. 4. The Earl of KelUe ha'ving
advanced this claim, Lord Mar petitioned the House of Lords
— not for recognition of his own tUl then unquestioned right,
but for leave to oppose a claim advanced in derogation of that
right, and in aggression upon the unity and integrity of the one
and only Earldom of Mar standing upon the Union BoU, and of
which, as repeatedly stated, he was in legal possession. But by
thus petitioning the House, Lord Mar in no sense compromised
his status or conferred any right on the House to adjudicate
upon that status, — he petitioned as Earl of Mar, being in legal
possession, for leave to defend himself. I may remark that by
Scottish law in any such case the Court of Session ordered the
claimant or pursuer to summon parties who would be compro
mised by his success, to appear for their interest as matter of
right ; and in the same manner the House of Lords ordered
the Sutherland claimant to summon the Earls of Crawford and
Erroll to appear in opposition, lest their right should be com
promised. It is an obUgation incumbent on the House so to do,
and the very fact of Lord Mar petitioning for leave, according
to the modern usage, placed him at a disadvantage. When the
Duke of Montrose was permitted to appear in opposition to
my father in the Montrose claim, in 1853, on the ground that
that the dignity claimed by my father was of the same name
and style as his own Dukedom, the House might just as
reasonably have treated him as a claimant as Lord Mar, the
two Dukedoms being absolutely distinct ; and the very founda
tion of Lord Kellie's claim being that the ancient and the
modern dignity of Mar had no connection.

LET. X. THE EAELDOM OF MAE. 141
But, to proceed : It is true that the Committee for
Privileges — assuming ab initio, under the influence of the
traditional private rule of 1762, that the presumption in the
succession to Scottish dignities is in favour of heirs-male and
against the heirs-general — not distinguishing between the
absolutely distinct characters of the real and the supposititious
dignity — and not recoUecting that when Sir Eobert Gordon
in 1771, standing on precisely the same ground as Lord Kellie,
alleged that the Earldom of Mar was a new creation of 1565,
Lord Mansfield and Lord Camden rejected the plea and
founded upon the proved descendibility of the Earldom of Mar
as one of the ancient Scottish earldoms so descendible, in
favour of the Sutherland heir-general — disallowed Lord Mar's
title, ordered him to expunge it from his case, and compelled
him to appear before them as a commoner — and, instead
of recognising the onus probandi as incumbent on Lord Kellie,
claimant of the alleged new Earldom, transferred it to the
shoulders of the actual tenant of the original dignity — the only
Earldom of Mar recognised as in existence tUl that moment.
But aU this, and Lord Hatherley's words, "You may watch
the case as a claimant," could not convert Lord Mar into a
claimant, or derogate from his status as Earl. Lord Mar
had to choose between appearing at the bar of the House of
Lords in this degraded capacity, and bow to Lord Hatherley's
rebukes, he being at that moment the most ancient peer in
Her Majesty's dominions — and abandoning all defence of his
ancestral rights. But those rights, rooted in the soU of
centuries, and protected by law — and I must add once more,
by the Treaty of Union — could not be legaUy compromised by
such extrajudicial proceedings.
My answer to the two questions suggested by Lord KeUie
is therefore as follows : — 1. That Lord Mar can no more be
other than Earl of Mar, than Lord Kellie himself can be other
than Earl of KeUie ; and being Earl of Mar, and the House of
Lords having been invested with no authority to determine
that he is not Earl of Mar, and the recent report on reference
from the Crown having been exclusively confined to the claim
to the aUeged modern peerage claimed by Lord KelUe, Lord
Mar is entitled to style himself, and to be styled by aU others,
without exception, by his proper title. And, 2. That never

142 THE EAELDOM OF MAE. let. x.
having submitted his pretensions to the arbitrament of the
Sovereign, but simply opposed Lord KeUie's claim as above
shown — a claim to a dignity of which he denies the existence
— he has never been, and is not now, in the position of a
claimant, and no one has the right to call him so. The words
" unsuccessful," " defeated," in Lord KeUie's Letter, add nothing
to the gravity of the misrepresentation.
The fact is, that Lord KeUie and those who support his
views proceed upon the impression that mere opinions ex
pressed by the noble and learned Lords who advised the
Committee for Privileges in 1875, to the effect that the original
Earldom of Mar was extinct, amounted to a judicial or quasi-
judicial declaration to that effect — although those opinions
were never reported to the Sovereign, nor indeed could be,
unless the Committee had been guUty of the same error and
invasion of the prerogatives and of the liberty of the subject
into which Lord St. Leonards betrayed the Committee for
Privileges and the House of Lords in the Montrose claim in
1853, when he inserted at the last moment a clause in the
Eesolution in repudiation of, and in order to preclude, an
alternate claim, which he apprehended the claimant might
prefer to the Sovereign (but which he had not made), upon a
grant entirely independent of that upon which he had aheady
claimed — a proceeding ultra vires of the Committee and the
House. The impression here remarked upon is a necessary
consequence from the fatal error of representing the speeches
of noble and learned Lords in Committees for Pri'vUeges as
" judgments " — thus investing mere " opinions " with a judicial
character which they do not possess. And yet it is on this
theory alone that the orders issued by the House of Lords,
already mentioned, as consequent upon the Eesolution of 1875,
and which will be discussed in the ensuing Letter, can be
accounted for.
The law on this point as affecting claims to Enghsh
dignities (and when Scottish claimants submit themselves to
the English procedure, they are entitled to the protection
afforded by it, and a fortiori in such a case as that of Lord
Mar, who has never been a claimant) was laid down by Lord
Chief -Justice Holt in the Banbury case in 1692, and is decisive.
The appUcation of this well-known case is peremptory in

LET. X. THE EAELDOM OP MAE. 143
the present instance. The heir-general of the ancient Earldom
of Mar, strong in his legal possession, has never clauned the
Earldom in question by petition to the Crown. The Sovereign
consequently has not referred such petition to the House of
Lords. The House necessarily has had no such claim before
it. And the denial of Lord Mar's right to appear as a peer in
defending his right previously to the Besolution, and any
action taken subsequently thereto in infringement of his right,
is as nugatory in law as that taken by the House of Lords in
the Banbury case — and a fortiori, inasmuch as it is matter of
option to the claimants of Scottish peerages whether they
submit their pretensions to the Crown or to a legal tribunal,
which they are fully entitled to do by the Treaty of Union.

144 THE EAELDOM OF MAE. let. xi.

LETTEE XI.
ORDER TO THE LORD CLERK REGISTER AND ITS RESULTS.
Section I.
Orders passed on Resolution of ^5th February 1875.
The right of the Earl of Mar to style himself so, and to
exercise the privileges attaching to the Earldom of Mar stand
ing on the Union EoU, having thus been -vindicated aUke from
the imputation of undue assumption on his part and the mis
representation that he stands in the position of a defeated
claimant, I resume the thread of naiTative from the point
where I interrupted it, viz., from the day on which the Eesolu
tion in favour of the Earl of KeUie was adopted by the Com
mittee for Privileges. That day was the 25th February 1875 ;
and on the very next day, the 26 th, the House of Lords initi
ated a course of action which has been the basis of aU that has
since taken place — of Lord Mar's practical exclusion from his
seat among the Peers of Scotland at Holyrood and of Lord
Kellie's propulsion into it — the action so adopted by the House
proceeding on the views expressed in Committee upon which
the Eesolution of the 25th February 1875 was arrived at, but
which views form no part of the Besolution, and cannot be
imported into it so as to authorise the House to act in prejudice
of one who is not only no claimant, but is actuaUy iu legal
possession of the original Earldom of Mar, — a dignity distinct
from that claimed by Lord Kellie, and upon which alone the
House was competent to advise the Sovereign in terms of the
reference. The House of Lords has subsequently, as I shall
show, disavowed the theory upon which the action I have now
to set forth proceeded; but the action remains in force, the
injury as yet unredressed. I proceed to narrate what passed
on the 26th of February in Lord Kellie's own words : —

SECT. I. THE EAELDOM OF MAE. 145
" This Eesolution," that of the 25th February, " was reported
to the House and approved of on the 26th of February 1875,
and the following Orders of the House were passed upon it : —
"'Ordered, 1. That said Eesolution aud Judgment be
reported to Her Majesty by the Lords with white
staves.
" ' Ordered, 2. That the Clerk of the Barliament do transmit
the said Besolution and Judgment to the Lord Clerk
Eegister of Scotland.
" ' Ordered, 3. That at the future meetings of the Peers of
Scotland assembled under any Eoyal Proclamation for
the election of a Peer or Peers to represent the Peerage
of Scotland in Parliament, the Lord Clerk Eegister, or
the Clerks of Session officiating thereat in his name, do
call the title of Earl of Mar according to its place on
the roll of Peers of Scotland called at such election,
and do receive and count the vote of the Earl of Mar
claiming to vote in right of the said Earldom, and do
permit him to take part in the proceedings of such
election.'
" As," Lord Kellie proceeds, " the returning officer appointed
by Statute to act at the election of Peers, the Lord Clerk
Eegister by himself, or by two Clerks of Session having com
mission from him, is bound by the Statute passed in 1847,
imder these Orders of the House of Lords, to receive my vote
and to refuse that of any one else attempting to vote as Earl of
Mar ; so that the protests of Lord Crawford and other Peers
are not of the slightest value, and only serve to interrupt that
harmony which has hitherto prevailed at the election of Peers."
Passing over Lord KelUe's concluding assertion for the
moment, I have to remark that the second and third of these
Orders were alike irregular and ultra vires of the House, for
these reasons : — 1. They were issued prematurely, 'without due
authority, and in disrespect to the Sovereign; and 2. The
effect of the third Order in particular was to tamper with the
Union EoU ; and the House has no legal power to do so, either
directly or indirectly. I do not know who was responsible for
the Orders, or whether precedents can be aUeged for one or
both of them ; but principle condemns them, and all that has
followed upon them must share in this condemnation.
vol. II. K

146 THE EAELDOM OF MAE. let. xi.
In the first place, the two Orders were issued by the House
in the same breath with their approval of the Eesolution and
the Order that it should be reported to the Sovereign, but
before the report had been made to the Sovereign, and without
due authority, under an unwarranted assumption that the
Sovereign would approve of the result. This was wholly
irregular and iMra vires of the House. The intervention of
the House is strictly limited by the condition of the royal
reference, which reserves ultimate judgment for the Sovereign ;
and after reporting their Eesolution, embodying their humble
advice to the Crown, the House is functus officio, and no
further action can be taken by the House or by any one else
until the Sovereign has pronounced his award, after full
inquiry and deliberation upon the advice thus tendered.
Had the House issued these Orders after the Besolution
had been simply received by the Sovereign, that would have
been an irregularity; but so to act as it did, before that
Besolution and Eeport had been sent up to the Queen, was not
only to act without authority, but was inconsistent with that
respect always manifested by the House for the supreme
authority, and which it could only have overlooked in the
present instance through some strong misconception of its
power. In a word, the approval of the Sovereign came to be
taken for granted. The word "judgment," coupled with
" Eesolution " in the first and second of the two Orders, has no
judicial significance ; but merely expresses the opinion tendered
to the ultimate judge, as shown by Lord Chelmsford himself in
his speech on the Wiltes claim, elsewhere quoted. The second
and third of these Orders were thus issued in direct invasion
upon the prerogative of the Queen, treating her practically as
a nonentity in the matter. Her assent ought in no case to
have been thus presumed upon, and least of all in the case
before us, because she might have seen fit to demand ex
planation as to the grounds and merits of the Eesolution,
inasmuch as the law officers of the Crown, the Attorney-
General and the Solicitor-General for Scotland, had expressed
their conviction in addressing the Committee for Privileges
on behalf of the Crown, that whether the original dignity
of Mar was restored in 1565, or whether a new creation
then took place, it mattered nothing, as the dignity was in

SECT. I. THE EAELDOM OF MAR. 147
the former alternative descendible to heirs-general, and in the
latter was intended so to descend — thus in no point of 'view
descendible to the Earl of KeUie, the heir-male; while it
followed necessarily from these premises, although the officers
for the Crown did not travel beyond their prescribed tether,
that the dignity under either alternative stood vested in the
heir-general, Lord Mar, the " opposing petitioner " at the bar.
It was further, under any circumstances, in Her Majesty's
option — a consideration whoUy overlooked by the House of
Lords, and by Lord Chelmsford in particular, on the 26th
February 1875 — to refer Lord KeUie's petition back to the
House for further consideration, or to take the ad'vice of
another tribunal and act upon it. According to the intimation
in the original reference to the House, all they were empowered
to do was to "examine the allegations" of the petitioner, and
"to inform Her Majesty how the same shaU appear to their
Lordships." The precipitancy of the Order tended in another
direction to preclude remonstrance on the part of the actual
tenant of the original dignity, the heir-general. Lord Mar,
who would have been entitled to protest to Her Majesty
against such unwarranted invasion of his right. But the
ground was thus cut from under his feet. I have nothing
to do with motives here, which were probably limited to the
wish of quashing what may have appeared Ukely to prove a
troublesome and unwarranted opposition. I deal simply with
facts and their effect. It would be no answer to all this to
allege that the provisions for justice at the foot of the throne,
which I have appealed to, are obsolete ; Lord Chelmsford did
not consider them so when he advised the Committee for
PrivUeges on the Wiltes claim ; and, while the rights 'of the
Crown cannot suffer from prescription, the provisions in ques
tion, difficult as it may be to enforce them, are the only
security left for rights such as those I now defend, against
the autocratic action of a body which otherwise would be,
and is after all to all practical purposes, a Court of first and
last resort in claims to dignities.
But, secondly, independently of this supersession of the
authority of the Sovereign, irregular in course and ultra vires
in action, and the attendant injustice to Lord Mar, the third
of the above Orders was further ultra vires of the House, inas-

148 THE EAELDOM OF MAE. let. xi.
much as it proceeds upon an assumption that the House has
legal power to ordain alteration in the precedency of the Peers
of Scotland — in a word, as I have said, to tamper with the Union
Eoll. The Order in question intrudes Lord KeUie, as Earl of
Mar under the aUeged creation of 1565, into the place and
precedency of the ancient Earldom of Mar, the only Earldom
of Mar on the Union EoU, holding a precedency far above
1565, and actually occupied by another as entitled thereto and
invested therein, not only jure sanguinis and under the law of
Scotland, but by the Act of Beversal of Attainder of 1 824, the
recognition of the House of Lords in the Sutherland claim of
1771, and the decreet of the Court of Session in 1626; an
Earldom which Lord KeUie_had not claimed, and which the
House had not reported, or been licensed to report upon, to the
Sovereign ; but into which the Order in question thrust Lord
KeUie, to the effect of extruding the lawful tenant (so far as
acceptance of his vote was concerned), and giving the newly
discovered Earldom of Mar in Lord KelUe's person the prece
dency over nine Earldoms, created between 1404 and 1565,
and their representatives — the weU-known principle being
totally overlooked, that a dignity cannot be extinguished by
indirect words, or by a side wind, even by an Act of Parha-
ment ; while the House of Lords had not been empowered by
reference from the Crown to express even an opinion upon the
existence or non-existence of the original dignity, far less to
take action upon such opinion.
I have already shown in my seventh Letter that the House
of Lords has no legal power to deal with the Union BoU ; and
I shall presently show that the House itself disclaimed such
power subsequently to the issue of the Order here in question,
thus admitting that this third Order was ultra vires, and there
fore illegal. All that the House is at liberty to do, at least by
custom, is to direct that a dignity dormant in 1707, or then
held along with a superior dignity but since detached from it,
shall, on its recognition by the Sovereign as existing in a
claimant, be inserted in its proper place on the EoU, and the
vote of its tenant received. This is what might have been
done in the case of Lord Kellie with regard to the supposed
Earldom of 1565, had the existence of that dignity and its
descendibUity to male heirs been legally established ; and why

SECT. II. THE EAELDOM OF MAE. 149
this was not done has never been explained. But the Order
attempted more than this, — to extinguish the original Earldom,
and establish the new one in its place; they committing the
eiTor of vaulting ambition in overleaping itself, and coming to
giief on the other side. Section II.
Proceedings at the Election 0/ 1876.
The effect of the Orders of the House of Lords, thus far
noticed, and especially of the second and third Orders, made
itself felt at the first election of Scottish Eepresentative Peers
which took place after the Besolution upon Lord Kellie's
claim, and which was held at Holyrood on the 2 2d December
1876. The proceedings on this occasion were of singular im
portance and interest ; and I shall give them, although abridged
as much as possible, from the full report published in the Scots
man ot the. 23d December 1876. They are well worth atten
tion, as illustrating the practical effect of the Orders of the 26th
February 1876, and bringing into prominence all the popular
prejudices attendant on the subject. The scene was not with
out its dramatic character. The heir and tenant of the ancient
Earldom of Mar, Earl of Mar by Scottish law, and the claimant
of the supposed creation of 1565, Earl ©f Mar according to the
House of Lords, met in opposition, as claiming to vote in the
character of the Earldom, not of 1565 but of 1404, the former
under all the disadvantage attendant on the apparent position
of a defeated claimant imposed on him by the House, yet not
without a few Scotch peers who sympathised with his position,
and vindicated his right ; the latter, in the blaze of success, and
supported by one whose influence has long been predominant
at Holyrood, but whose justice is such, that nothing but con
fidence in the infallibUity of the House of Lords could have
induced him to take the part he did on the occasion ; a part, I
may observe, of moderation, as compared with that of others
also present. The lead in opposition was taken by the Mar
quess of Lothian, Lord Elphinstone, and Lord Saltoun. The
Lord Clerk Eegister presiding was Sir WiUiam Gibson-Craig.
The proceedings opened by Lord Lothian calling attention to
the fact " that there was a gentleman sitting at the table," —

150 THB EAELDOM OF MAR. let. xi.
the seat occupied by the peers on the occasion of such assem
blies — " who, he thought, had been declared by a decision of
the House of Lords to be a commoner." This was Lord Mar,
who attended in his place to vote at the election. The Duke
of Buccleuch remarked that it was not usual for a person who
was a claimant to a title to take his seat with those who pos
sessed a title, " although the question of sitting in one chair or
in another was immaterial." The Lord Clerk Eegister, who
presided officially at the meeting, stated, " that as far as he was
judicially concerned, he could not recognise the gentleman
referred to in any shape or form, except as a commoner. Lord
Elphinstone moved that Mr. Goodeve Erskine be requested to
leave the table before the proceedings were commenced. The
case in which that gentleman was concerned had been decided
by the House of Lords. He was therefore a commoner;
at any rate, he was not a peer of Scotland." Lord Saltoun
seconded the motion.
The motion having been thus put and seconded, "Mr
Goodeve Erskine," I use the words of the report, rose, and
" craved indulgence for a few minutes to make a single state
ment. He believed he was right in taking it for granted that
the remarks which had faUen from several noble Lords must
apply to him, because a name was mentioned which was his
own name ; but he took leave, with all respect aud deference
for their Lordships' -views, to venture to correct a little mistake
that had been perhaps not very unnaturally fallen into. Since
his uncle, the last holder of the old title of Mar, died, he had
been in the habit of voting at these elections as a Peer." The
Lord Clerk Eegister here interposed, " No, no ; certainly not."
But Mr. Goodeve Erskine, in continuation, " said his votes had
been recorded in previous years under protest ; his vote had
been received, and on one occasion it caused a tie between
Lord Kellie and Lord EoUo. The matter was reported to the
House of Lords, and his vote stood. He begged to state that
' DO
there had been no adjudication by the House of Lords, or any
other tribunal, against his right. The adjudication in favour
of the Earl of Kellie was simply that he was entitled to enjoy
the Peerage of Mar created in 1565. To that dignity of per
fectly modern date he, Mr. Goodeve Erskine, was happy to say
he laid no claim ; and, until a solemn adjudication had been

sect. II. THE EAELDOM OF MAE. 151
passed against his rights, he protested his right as a peer of
Scotland, not dispossessed, to take his seat at the table." Mr.
Goodeve Erskine was proceeding to read a formal Protest, when
the Lord Clerk Eegister, interrupting, said, " This was extremely
irregular. He knew one Earl of Mar, and only one. The
honourable gentleman,'' his Lordship continued, " has had his
case before the House of Peers, and that House has decided
against him ; and I cannot hold that he is entitled, as Earl of
Mar, to have any appearance here at present." Lord Mar upon
this caUed the Lord Clerk Begister's attention to the Besolu
tion of the House of Lords in favour of Lord Kellie, in which
he said, " I am confident you will find there is no adjudication
against my right ; I say that with aU deference to your Lord
ship as a high official. There has been no adjudication against
my rights by the House of Lords, or any other Court in the
land ; and if any other person can prove his right to the old
title, the only title standing on the Union Eoll, let him come
forward and prove it." The Lord Clerk Eegister rejoined by
citing what he described as "the decision of the House of
Lords," but which was in reality the Order of the Committee
for Privileges, to the effect, "The Committee are of opinion
that the petitioner may be aUowed eight weeks' further time to
deliver in his printed case, and that the title of the appeal
should be amended by striking out therefrom the words ' claim
ing to be Earl of Mar.' You can," added his Lordship, "appeal
to the House of Lords as Mr. Goodeve Erskine, but the House
of Lords wiU not receive your appeal if made in the name of
the Earl of Mar." Lord Mar pointed out that this " decision
of the House of Lords" was an entirely different document
from that which he had referred to, viz., the Besolution and
Eeport of the Committee for PrivUeges, 25th February 1875.
" May I ask," he said, " the date of the paper your Lordship
has just read?" The Lord Clerk Register.—" 23d AprU 1875."
Mr. Goodeve Erskine. — " Exactly so : the adjudication in favour
of the Earl of KelUe being allowed to represent the compara
tively modern title of Mar, dated 25th February 1875 ; and by
that adjudication Lord Kellie may be perhaps entitled to a
modern Earldom, but he certainly has no right to, and never
claimed, the old Earldom of Mar which I represent. And
further, I make no claim to that old Earldom, by the advice of

152 THE EAELDOM OF MAE. let. xi.
my counsel, being already in possession." "It does not
signify," repUed the Lord Clerk Eegister, " whether the Earl of
Mar on the Eoll has obtained the other title or not ; you have
not established your right to it " — (Mr. Goodeve Erskine.—" Ex
cuse me") — "and till you have established your right you
cannot be received here."
After some further discussion, the Marquess of Lothian caUed
attention to the motion made and seconded, " that Mr. Goodeve
Erskine should be requested to -withdraw," — that being the
question before the meeting. " As to the question whether the
gentleman who appears as claimant of the Earldom of Mar — "
Mr. Goodeve Erskine. — " Excuse me ; I am not a claimant of
what I possess." The Marquess of Lothian. — " The gentleman
who claims to sit as Earl of Mar can have his claim put in
later when the title is caUed : but the question now before us
is. Whether the gentleman sitting under the name of Goodeve
Erskine should be aUowed to remain at the table or not ? " I
give this painful narrative with much reluctance, but it is
necessary to trace causes in their consequences; and the
general misconception of Lord Mar's position, and the injus
tice -with which he was treated by the Lord Clerk Eegister and
certain of his brother peers at Holyrood on this occasion, were
the immediate consequences of the Order of the 26th Feb
ruary 1875.
At this point of tension Lord Napier intervened, by suggest
ing that Mr. Goodeve Erskine should not be requested to leave
the table till " the Earl should claim to vote, and should his
vote be negatived, it would then be time to ask him to leave
the table." The Duke of Buccleuch reiterated his opinion that
the question " whether Mr. Goodeve Erskine sat at the table
or not was very immaterial " — " it was a question of taste " (he
added) "on his part." ]\Ir. Goodeve Erskine then said he
asserted his right as a peer, not dispossessed of his ancient
right, to sit at that table as a Peer of Scotland ; but if it was
left to his good taste whether he should sit or not ... he
would stand behind the chair." He took his place accordingly.
" A lady " (the report proceeds) " sitting behind him offered
to vacate her chair in his favour, but he said he should on no
account dispossess a lady ; and the matter was adjusted by his
resuming his own chair, slightly drawn back from the table."

sect. II. THE EAELDOM OF MAE. 153
When the title of "Earl of Mar " was caUed, both " Mr.
Goodeve Erskine " and the " Earl of Mar and KelUe " rose and
answered to the call ; and the close of the scene was as follows :
— " The Lord Clerk Eegister, addressing Mr. Goodeve Erskine,
again informed him that he could not recognise him in any way
except as a commoner. He had to ask him to sit down. Mr.
Goodeve Erskine. — In deference to your Lordship, if it is agree
able that I should sit rather than stand, I will sit with pleasure ;
but I assert my right once more to appear as a Scotch Peer and
answer to the title. The Lord Clerk Register. — You understand,
I express no opinion as to whether you have a right to the
Earldom of Mar or not. I simply stand on this ground, that
you petitioned to be created " [sic] " as Earl of Mar, and that
the House of Lords has rejected your claim. Mr. Goodeve
Erskine. — Nothing of the kind, most emphaticaUy " — (cries of
Order!) — "I beg your Lordship's pardon; I am sorry to ex
press myself so abruptly. I never petitioned the House of Lords
to be created anything at all." The Lord Clerk Eegister closed
the discussion by saying, " I cannot have the proceedings inter
rupted by a person who is not entitled to be present."
At this stage, the question being the reception of the vote
of the Earl of Mar and Kellie, or of that of " Mr. Goodeve
Erskine " as Earl of Mar, in answer to the summons of " Mar "
on the Union Boll, various Brotests were lodged against the
right of Lord Kellie to vote in that character. As already
explained, the Order of 26th February 1875 commanded the
Lord Clerk Eegister to receive and count the vote of Lord
KeUie as "Earl of Mar" under the alleged creation of 1565,
which is not on the Union Boll, in the place of the Earldom of
Mar actuaUy standing on the Union Boll, and which has
precedence over the Earldoms of Menteith, Eothes, Morton,
Buchan, Glencairn, Eglinton, Cassillis, Caithness, and Moray —
all created previously to 1565. The Order thus struck directly
at the rights of precedency enjoyed by these Earls. In conse
quence of this, the Earls of Morton, CassiUis, and Caithness
protested by formal and separate instruments, and in the same
words in each case, against the Earl of Mar and Kellie " answer
ing to the title of Mar which stands on the Union Boll of
Peers, and voting before me, as he has no right to the said title
of Mar on the Union Eoll, but only to a title of Mar recently

154 THE EARLDOM OF MAE. let. xi.
found by the House of Lords to have been created in 1565,
which creation gives his title of Mar rank below me." These
protests were on behalf of special and personal interests ; but
others grounded their remonstrance upon general grounds. The
Marquess of Huntly entered a protest of this nature, and much
to the point, against the acceptance of Lord KeUie's vote in'
right of the " title of Earl of Mar which stands on the Union
Eoll of Peers, as he has no right thereto, but only to a title of
Earl of Mar recently found by the House of Lords to have been
created in 1565 ; and if the said . . . Earl of Mar and Kelhe
should, notwithstanding of the objection hereby made on my
behalf, insist on answering to the said title of Earl of Mar
standing on the said Union Eoll as aforesaid, I do hereby pro
test against his so doing, and for remeid of law at a fit and
proper time." Moreover, Lord Napier, acting on grounds
equally disinterested with those of Lord Huntly, objected by a
similar protest, on the ground that the Earldom of Mar on the
Union Boll " stands on the said Eoll with a precedence of more
than a century earlier than the title of Earl of Mar affirmed by
the House of Lords to have been created in 1565, and adjudi
cated to the Earl of Kellie on February the 25th, 1875; and
should the vote of the Eight Honourable John Francis Erskine
Earl of Mar, hitherto received at the elections as that of the
representative of the ancient Earldom of Mar on the Union Eoll
be tendered and be not received, I further object to the rejection
of the said vote, and protest for the reasons set forth in the
protest of the Earl of Crawford and Balcarres." The protest
to which Lord Huntly thus honoured me by expressing his
adherence, and which was put in on the occasion of this elec
tion, is the first of the two Brotests which form the subject of
Lord Kellie's criticism in the Letter addressed to the Peers of
Scotland, now before myself and the reader.
The Lord Clerk Eegister observed, after receipt of my Pro
test, that the protest being '' against the Earl of Mar '' (i.e. the
Earl of Mar and KeUie) " voting at this election, he had no
choice but to obey the Order he had received from the House
of Lords, and which was perfectly clear and distinct" — this
being the third of the series of Orders passed on the 26th
February 1875. The Duke of Buccleuch observed, with perfect ¦
propriety, that " the peers could not go into all the questions

sect. II. THE EAELDOM OF MAE. 155
raised " by the Protest. " This was a meeting for purposes of
election, not for purposes of deliberation as a court. They
could only be guided there by a decision of the supreme Court,
viz., the House of Lords" — an attribution of jurisdiction which
I, of course, dissent from — " and he did not think they should
gain anything by going into the detaUs of things which must
be decided by that House, and could not be decided by them."
It would have been well if this advice had been attended to at
the subsequent election, when I lodged a second or Additional
Protest. The Duke was perfectly right. But he did not
apprehend, I suspect, the ratio and object of protests, which
are formal appeals, it may be said, to posterity, in the ancient
formula used by Lord Huntly, " for remeid of law at fitting
time and place," when the grounds of such protests may be
insisted upon in the interests of justice, when the hand that
has signed the formal document has perhaps mouldered into
dust. Any discussion upon such rationes at meetings for elec
tion purposes at Holyrood is simply gratuitous on the part of
those who take part in it. The Lord Clerk Eegister receives
the protest — it is recorded in the Minutes — it stands there as
a landmark of remonstrance, voiceful for centuries, and a
groundwork for legal proceediugs, as I have elsewhere shown,
in the Supreme Court of Scotland, which is not the House of
Lords, but, as I have elsewhere shown, the Court of Session.
.The Protests of the Marquess of Huntly and of other noble
Lords on behalf of Lord Mar having thus been received. Lord
Mar, or, as he was styled, "Mr. Goodeve Erskine," rose and asked
leave to read a Protest in his own behalf The Lord Clerk
Eegister again requested him to sit down, affirming, "You have
no right to appear." But Lord Mar insisted, in eloquent
words, in defence of his right. " I maintain my right," he said,
" to appear as a Peer of Scotland, not in any way dispossessed
of my ancient rights through a new title being conceded to the
Earl of KeUie of an entirely different date and line of succes
sion" — Lord Mar, I may observe, overlooking the fact that by
Scottish law he himself, and not Lord KeUie, would be Earl of
Mar under the creation of 1565, had such ever existed. To the
question of the Lord Clerk Eegister, " How is that protest
signed ? " Lord Mar replied, " By my right and proper signa
ture ; by the name of the title I have the honour to inherit

156 THE EAELDOM OF MAE. let, xl
from my uncle and the Earls of Mar for the last thousand years,
independently of a new title dated 1565. Lord KelUe's new
title of 1565 is not on the records of Scottish history, and is
nowhere affirmed ; there is not a single document in support of
it ; it rests entirely on the Besolution of the House of Lords,
formed on a report from the Committee of Pri'vUeges saying
that, without writing or evidence of any kind, they presume
this new title to have been created in 1565, limited to the heirs-
male of the Erskine family, though the old title of Mar was not
held through Erskines at all. I claim my right as a Scotch
Peer to put in my Protest, with all deference to your Lordship's
views ; and I put it to the noble Lords present whether I may
not be allowed to read my own Protest. The learned advocate
has had the indulgence of your Lordships in reading three or
four ; and I think I am not asking too much in asking to he
allowed to read my own Protest in this supposed-to-be free
country." Lord Elphinstone and Lord Saltoun then addressed the
meeting, the former protesting " against Mr. Goodeve Erskine
reading any Protest. There was," he said, " but one Earl of
Mar. One Earl of Mar was forfeited in 1715; one Earldom
was restored in 1824. The case was before the House of Lords
very recently, and was decided by the Peers, who were unani
mous in saying that the ancient Earldom was extinct " — (Mr.
Goodeve Erskine. — " No, no ! ") — " and had been extinct for 130
years before the new title was created by Queen Mary. If con
firmation were required, it was afforded when Mr. Goodeve
Erskine appealed against the judgment of the Court of Session
claiming the Mar estates." (Tins was in further aUusion to the
process between Lord Mar and Lord KeUie, the former claiming
the estates as standing on the settlement of 1739 and the miss
ing back bond, but which was given against him by the First
Division of the Court of Session, after which he appealed to the
House of Lords, who confirmed the judgment.) " Pending the
trial," continued Lord Elphinstone, " he was aUowed to append
to his name Goodeve Erskine, ' claiming the Earldom of Mar ; '
but after the decision on the peerage case, their Lordships
ordered these words to be struck out. If further confirmation
was required, he should call attention to the fact that whereas
j\Tr. Goodeve Erskine had been presented at Court as Earl ot

sect. II. THE EAELDOM OF MAE. 157
Mar, after the decision ofthe House of Lords was given, the Lord
Chamberlain, in his official capacity, cancelled the presentation
of Mr. Goodeve Erskine as Earl, and of Mrs. Goodeve Erskine as
Countess of Mar." I have spoken of this comparatively petty
matter elsewhere ; but ultra vires ! ultra vires ! is stamped upon
all these dealings. The House of Lords has subsequently
repudiated the idea that in recognising an Earldom of Mar of
1565 as in Lord Kellie, it affirmed the extinction of the ancient
Earldom of Mar, as urged against " Mr. Goodeve Erskine " at
Holyrood and elsewhere.
Lord Saltoun, foUowing up Lord Elphinstone, added that
" there was no doubt that the origin of aU titles of honour was
the Crown, and they must partake of the nature of the Crown
in so far that the representative of a title should be a single
person. If they admitted two Earls of Mar, why not admit a
dozen ; why not two Kings or two Princes of Wales ? The
thing was an absurdity." (It is hardly worth while stopping
to comment upon this.) " They had now before them the
decision of the House of Lords, desiring them [?] to admit an
Earl of Mar, and designating that Earl of Mar who he was.
They could not admit two Earls of Mar, because it was impos
sible that there coiUd be two Earls of Mar at the same time in
the kingdom. Therefore they must obey the House of Lords,
and nobody else could have a right to call himself Earl of
Mar." The conversation closed by Viscount Stormont (Earl of
Mansfield in the British Peerage) observing that " he remem
bered that some years ago ColviUe of Ochiltree made a claim
before the House of Lords to vote. That claim was refused,
and it was established that he had no right ; but he appeared
at a Peers' election and made a statement in regard to his claim,
and entered a Protest, which was accepted by their Lordships.
They had no power," he added, " to give any opinion as to the
merits of this case, which must rest entirely with the House of
Lords ; but there was one fallacy which had fallen from his
noble friend (Lord Saltoun), that it was impossible there could
be two peers of one name. It so happened that at this moment
he was in England Earl of Mansfield and Earl of Mansfield by
two separate creations."
Lord Saltoun explained that he " meant in the same rank."

158 THB EAELDOM OF MAE. let. xi.
I need scarcely add that no serious objection can be raised
on such a point.
The conversation then dropped. But I shall have an ob
servation or two to make on other points, especiaUy on Lord
Elphinstone's speech, before closing this Letter.
Lord Mar then repeated his request that he might put in his
Protest. The Lord Clerk Eegister repUed that " he must stop
this discussion. If," he continued, " you sign that Protest with
your owm name, I will receive it ; if you sign it as Earl of Mar,
I cannot recognise it. I do not express any opinion whether
or not you have a right to be Earl of Mar ; but you must esta
blish that right. At present you are only a peer of your own
creation, and that creation I cannot recognise here."
Lord Mar then reverted to the point which he had pre
viously raised, based upon the following facts, which appear to
have passed from the remembrance of all present except the
Duke of Buccleuch — Lord Mar himself having (as it seems to
me) but an imperfect appreciation of their importance. The
facts are briefly these : — The House of Lords, at the instance of
the then Earl of Bosebery, passed a general Besolution on the
13th May 1822, ordering "that no person, upon the decease
of any peer or peeress of Scotland, other than the son, grandson,
or other lineal descendant, or the brother of such peer, or the
son, grandson, or other lineal descendant of such peeress, shall
be admitted to vote at the election of the sixteen peers," etc.
etc., " until, on claim made on behalf of such person, his right
of voting at such election or elections shaU have been admitted
by tbe House of Lords," — or, in simpler words, that no heir-
collateral succeeding to a Scottish peerage more remote than
the brother of the deceased peer shaU be permitted to vote
until he shall have proved his right before the House of Lords,
— the contingency of the son of such a brother, or the son of
the younger sister of a peeress dying without issue, succeeding
to a dignity, being overlooked, and, in fact, excluded from the
exemption ex terminis of the Eesolution, so as hardly to
fall within the possibUity of being included constructively
therein. It was not only an outrageous Eesolution, in aggres
sion upon the rights of Scottish peers as subjects governed
by the laws of Scotland, protected by the Treaty of Union;
but, as a general Eesolution of the House affecting dignities

sect. II. THE EAELDOM OF MAE. 159
and the privileges of peers, it was, like many other similar
Eesolutions in former times, simply ultra vires, and, as such,
illegal. It proved abortive, as was confessed by the Select
Committee of the House " relative to Scottish Eepresentative
Peers," in 1847, in the following words : — " The House, by their
Eesolutions of 1822, attempted to prevent the intrusion of all
persons claiming to vote by collateral succession without due
authority ; but these Eesolutions have proved inoperative, even
in many cases of this description, and wholly so with regard to
those who claim by lineal descent." The Eesolution, neverthe
less, remained on the books of the House for forty years longer,
a standing menace, till it was rescinded on the motion of
the Duke of Buccleuch on the 25th July 1862, and matters
restored to their former state. Lord Mar would appear to
have been under the impression that the Lord Clerk Eegister
was acting against him under Lord Eosebery's Eesolution,
which, strictly interpreted, might have created a practical im
pediment in his case as sister's son to the deceased Earl of
Mar ; and he therefore appealed to the Duke of Buccleuch's
own Eesolution in proof that no such impediment existed
since 1862. With this explanation what followed will be
intelligible. In reply to the objection of the Lord Clerk Eegister, that
he must establish his right as Earl of Mar before he could be
recognised as such at Holyrood, Lord Mar rejoined — " By a
Eesolution of the Duke of Buccleuch on the 25th July 1862,
it is not necessary to establish one's right before appearing at
the election." " That," replied the Lord Clerk Eegister, " is
not my opinion." " I should very much Uke," Lord Mar re
plied, " to see a copy of the Besolution," — this being the second
time he had asked for it ; but, passing over this, the Lord Clerk
Eegister insisted, " All I can say is, that any person appearing
here to vote must satisfy me he has the right to act as he pro
poses. I can decide upon that, — it is my duty." Lord Mar
once more asked : " May I see the Besolution of the Duke of
Buccleuch ?" to which the Lord Clerk Eegister rejoined, " If
you sign that Protest with your own name, I will receive it."
Lord Mar replied, " I will sign with the name of Mar, the name
I inherit from my ancestors for a thousand years. WiU you
allow it to be entered on the Minutes that my protest has been

160 THE EAELDOM OF MAE. let. xi.
presented?" The answer was, "It will be recorded that a
protest was presented, but not received." It was accordingly
rejected. The Duke of Buccleuch then rose and said, "That as
several references had been made to him, as having moved that
it was not necessary for a peer to prove his right to his title
before voting at these elections, he should make that perfectly
clear. By a Besolution moved by the late Lord Bosebery a
great many years ago, the House decided that no peer succeed
ing to a peerage as a collateral should be entitled to vote untd
he had proved his right to the peerage. There were several
Eesolutions of different kinds passed by the House of Lords,
but they were conflicting and inconvenient, and were not
effective." I say, they were ultra vires and iUegaL " He " (the
Duke of Buccleuch) " certainly moved that this Eesolution he
rescinded, and nothing more than that. He did not move any
Eesolution as to the necessity or non-necessity of a peer
proving his right and title."
The proceedings, so far as they affected the Earldom of
Mar, closed with a speech of the Lord Clerk Eegister, contain
ing suggestions of what I must be aUowed to style a very
dangerous character, and the fruits of which may not perhaps
be yet come to light. " The Protests," he said — those, namely,
of Lord Huntly and others, " had been received, but they could
only be received, because it was impossible for him to act upon
them. He was directed to call the Eoll of Peers as it had
descended from the time of the Union, and to the order of
precedence in that BoU he must adhere. He had no means of
judging whether the Earl of Mar should hold the place he had
on that Boll. Five or six other peers might say they had pre
cedence of him, but Lord Mar might dispute the right of any
of these peers to be on the Eoll at all ; and if he (the Lord
Clerk Eegister) was to decide the case, he must try the position
of every peer who had been put above the Earl of Mar. (A
laugh.) This was a very important matter ; aud he had to
make a suggestion, which he hoped would be followed out.
The Eoll of the Peers of Scotland had twice been formally
settled — once in 1606, and again in 1707 or 1708, at the time
of the Union," — a manifest error, — "and it had come do'vrn
from that time as the recognised Boll of Peers. Many changes

sect. ii. THE EAELDOM OF MAE. 161
had taken place upon it, and they had had disputes in regard
to precedence," — a word, I must observe, too strong, — protests
merely " for remeid of law " in the proper region of " dispute,"
not the House of Lords but the Court of Session. " The Duke
of Sutherland, for example, had protested election after election
that he should be called as the first Earl." So, the Lord Clerk
Eegister might have added, have the successive Earls of Mar
since 1639. " These Protests had been received, but, of course,
no notice could be taken of them " — that is, by the Lord Clerk
Eegister or the Peers, the remedy to be applied being by the
Court of Session, which acted accordingly in the Sutherland
V. Crawford claim to precedency in 1746 ; " but he thought the
time had come when it would be well that the Peers of Scot
land should have a committee appointed by the House of
Lords to re-adjust the Union Eoll. (Applause.) This would
save a great deal of trouble at elections ; and he thought that
so many changes had taken place that it was quite right and
proper that an authentic Eoll should now be used on such
occasions. In the meantime, as he had no right to alter the
place of the Earl of Mar on the Eoll, he simply received the
protests, which would be forwarded to the House of Lords, but
no further proceedings taken on them,"- — this last statement
being, of course, whoUy gratuitous, as it depends on those pro
testing whether or not they choose to initiate proceedings upon
their protests in the quarter competent by the law of Scotland.
I shall revert to these observations of the Lord Clerk
Eegister in a future page.
The calUng of the Peers then proceeded, and nothing call
ing for remark here occurred till, on the summons of the Earl
of Breadalbane, a lady, styling herself " Begina, Dowager
Countess of Breadalbane and Holland," tendered a protest,
signed by her said title, on behalf of her son, styled "sixth
Earl of Breadalbane and Holland," then absent in Africa,
against the reception of the vote of " Gavin Campbell of Glen-
faUoch, claiming to be Earl of Breadalbane," — this being the
successful claimant on the death of the late Marquess. " The
lady," the report states, " in handing in her protest, said her
son's vote had been received in the House of Lords. The
Lord Clerk Eegister intimated that the Protest should be
received." VOL. II. L

162 THE EAELDOM OF MAE. let. xi.
Lord Mar made tender of his vote at the proper time, but
it was rejected. " The calling of the EoU being concluded, the
Peers were requested by the Lord Clerk Eegister to hand in
signed papers intimating the votes they wished to give. In
the course of the voting, Mr. Goodeve Erskine tendered his
vote in support of Lord Borthwick and Lord Balfour," i.e. Lord
Balfour of Burleigh, — " again submitting, in reply to the Lord
Clerk Eegister, that he did not require to estabUsh his claim
to that which he was in possession of by right of birth. His
voting paper was, however, returned, the Lord Clerk Eegister
decUning to recognise it."
I have narrated' the proceedings at this election of 1876, as
given by the able journal referred to, without comment, except
through such incidental remarks as were necessary in order to
explain passing aUusions or correct important inadvertencies.
It is impossible not to feel that the Lord Clerk Eegister was
placed in a very difficult position, through no fault of his own.
He stood, as it seems to me, between conflicting responsibih-
ties, of which the more remote and cogent appeared undefined
to his perception, the situation being in fact imprecedented ;
and between these responsibilities he adopted the proximate
one, that of obedience to the Order of the House of Lords, 26th
February 1875, commanding him to allow Lord KeUie to vote
as Earl of Mar in the place of the Earldom of Mar on the
Union Eoll, — an Order admitting of no hesitation or question.
and practicaUy substituting the vote of the heir-male under
the supposed creation of 1565, which has no place on the Eoll,
for the vote of the heir-general under the Earldom actually
standing there, to which Lord KeUie never made any claim,
but into which he was thus propelled, nolem volens, as by the
wand of a conjuror in a pantomime. Whether a prior obliga
tion did not require the Lord Clerk Eegister to disaUow this
Order as proceeding a non habente potcstatem — the House
having acted in unwarrantable anticipation of the approval of
their Eeport by the Sovereign — is a different question ; but it
is pretty certain that he was aware of no such obUgation,
and I do not think the objection of ultra vires which I have
thus urged had been mooted at that time. The plain and
practical difficulty in his path was this, which I have expressed
in the 8th ratio of my second or Additional Protest, that as the

SECT. IL THE EAELDOM OF MAE. 163
Committee of Pri'vUeges has no " authority to assign a place in
the Union EoU to the Earl of KeUie," ..." the Lord Clerk
Eegister cannot, in the discharge of his ministerial duty, assign
him one ; " and this must remain as a stumbUng-block in the
path of the late Lord Clerk Begister's successor. I have only
to observe, in conclusion so far, that in a subsequent debate in
the House of Lords, which I shall detail presently. Lord
Cairns seemed to throw a doubt upon the propriety of the
conduct of the Lord Clerk Eegister when, referring to the
Order to the Lord Clerk Eegister to call the title of the Earl of
Mar according to its place in the Eoll of Peers of Scotland,
he said, " Whether that means according to the place of a peer
age created in 1565, or whether it means to leave the Lord
Clerk Eegister at liberty to judge for himself of the Earldom
may be, I do not stop now to inquire. That is a matter which
must be considered in some other form, and cannot be decided
upon the Eesolution now passed by your Lordships' House."
But I cannot see the justice of this reflection, nor its propriety
or generosity as proceeding from the mouthpiece of that
House of Lords which issued the Order upon the plain and
obvious sense of which the Lord Clerk Eegister acted.
Section IIL
Observations on the foregoing proceedings.
I would submit the following special observations in ter
minating this narrative of the proceedings of the election of
1876. In the first place, one and aU of those who took part in the
discussion, including Lord Mar himself, assumed or aUowed that
the House of Lords had jurisdiction in dignities as a court of
justice — even the Duke of Buccleuch describing it as "the
Supreme Court — 'viz., the House of Lords — with power of
decision, which decision must be obeyed," — in absolute obUvion
of the prerogative and function of the Queen as the ultimate,
indeed only judge, and of all the attendant sanctions re
strictive upon the intervention of the House of Lords in digni
ties, which Lord Chelmsford had so distinctly laid down,
conformably with known principles, in his address to the
Committee for PrivUeges in the Wiltes case ; while they further

164 THE EAELDOM OF MAE. let. xi.
overlooked the fact that it is only by the allowance of claim
ants to Scottish dignities that their claims come before the
Crown at all ; and it is through their confidence in the justice
and equity with which they take it for granted those claims
wiU be considered that they adopt the English instead of the
Scottish procedure in the development of such claims. Nothing
of all this ignorance and oversight could have existed except
through a losing sight of the fundamental laws governing the
right to peerages, more especiaUy of Scotland, which I have
exhibited in the second of these Letters.
Again, the Lord Clerk Eegister, the Duke of Buccleuch,
and almost every one else present at Holyrood, insisted that
Lord Mar had been a claimant before the House of Lords, and
an unsuccessful claimant; and this notwithstanding Lord
Mar's clear and incontestable representation that the claim
decided — or rather the claim preferred to the Sovereign,
referred to the House of Lords, reported upon to the Sovereign,
but never to this day (so far as I am aware) decided by the
Sovereign — had been that only of Lord KeUie ; that Lord Mar
himself had never claimed the imaginary Earldom of 1565,
much less the Earldom on the Union BoU, of which he was
already in possession, — and that no " adjudication " had passed
as against himself. This insistance on the part of the Lord
Clerk Eegister and others arose from inadvertence, or from dis
regard of the fact that the House of Lords can neither offer an
opinion nor take any action in regard to the right to a dignity,
unless the question of that right has been brought before them
by reference from the Crown of a petition to the Crown pray
ing for recognition of the dignity ; and that when they express
such opinions or take such action proprio motu, it is ultra vires,
and such as the courts of law disallow, as in the Banbury case
in 1692, — always distasteful to the House, but which neverthe
less rules on the point in question — so far, that is to say, as
Scottish claims pass by reference before the House of Lords.
In contradiction to the assumption thus protested against,
it will be seen in the ensuing Letter that the Eeport of a
Select Committee appointed by the House of Lords to consider
the question of the Earldom of Mar in 1877, distinctly recog
nises the fact that there has been no decision against the heir-
general of Mar, and that consideration and decision upon his

sect. III. THE EAELDOM OF MAE. 165
right under the original Earldom (as distinct from that of
1565) is stUl open to him, if he elect to adopt the course
pointed out in that Eeport, — and this, I apprehend, is sufficient
to prove that Lord Mar was right in aU that he urged on this
point before the Lord Clerk Eegister and the assembled peers.
And if he is justified by the testimony of the House of Lords
itself, how much does not the view of the question urged
against him at the election need justification ?
I have further to remark, that Lord Mar did less than
justice to himself and his cause, in so far as he admitted —
although such admission in such a discussion in nowise binds
him in any way, and certainly not his friends — that a verit
able Earldom of Mar, dating from 1565, and descendible to
heirs-male, had come into view through the recognition of the
House of Lords, and that this Earldom was vested by the
decision of the House in the Earl of Kellie. This admission
arose from the impression, so inveterately maintained, that the
presumption in cases where no patent exists had been settled
by the House of Lords, by the CassUlis Eesolution of 1762, to
be in the heirs-male of the body of the original grantee. But
I have shown that this rule, so frequently styled " Lord Mans
field's law " was ultra vires of the House, as being in the teeth
of the Scottish law of succession, protected by the Treaty of
Union, which affirms and enforces the absolute contrary of
the proposition, and which the House of Lords is bound to
follow and impotent to disaUow. And the officers of the
Cro'wn had themselves affirmed the truth and repudiated the
error in their address to the House on the 16th June 1874,
pointing out that it mattered little under which creation the
Earldom of Mar standing on the Union Boll existed, because the
descent would in neither case be to the heir-male, Lord KelUe,
but, conversely, to the heir-general. This exposition was re
pudiated by the noble and learned Lords who ad-vised the
Committee in 1875, standing on Lord Mansfield's law — a
foundation of sand, insufficient to support the superstructure
they have reared upon it.
FinaUy, I have to point out that if the two Orders, and
especially the third Order, of the 26th Febmary 1875, were
ultra vires of the House, as I have shown they were, fof
reasons given, the whole proceedings at the election of 1876,

166 THE EAELDOM OF MAR. let. xi.
SO far as Lord Mar was concerned, were equaUy ultra vires,
and as such iUegal, and can infer no prejudice to his rights
or those of the Scottish peers as involved in his person.
The man to be pitied in the proceedings thus characterised
was undoubtedly the Lord Clerk Eegister, who was put in
the position of being compeUed, as the mouthpiece of the
House of Lords (for so he considered himself), to enforce
an Order, to which he repeatedly appealed as imperative on
his obedience. But painful as the scene must have been to
those who knew that Lord Mar was one of themselves, and
cruel as was his position and treatment, yet in another point
of view, the man really to be en-vied in that august assembly
was most certainly Lord Mar, who, under most trying circum
stances, with scarcely half a dozen to sympathise with and
support him, stood up to defend his inheritance of receding
centuries and the rights of the Scottish Peerage — if not by an
appeal to ultimate principles, on grounds, at least, which the
acknowledged limitations upon the action of the House of
Lords and the prerogative of the Cro-wn stamp -with sufficiency.
Having entered his protest — verbally indeed, his written protest
as Earl of Mar being rejected — Lord Mar has abstained from
further appearance at Holyrood. It is for those who acknow
ledge and have done justice to his rights to -vindicate those
rights in the future.
I might have added to the preceding remarks, that no one
present seems to have had any idea of the pecuUar character
and force of the protests entered at the meetings at Holyrood
for the election of Scottish Eepresentative Peers. These pro
tests are in sequence to those entered in Parliament before the
Union, and which were received by the Order of the House of
Lords of 12th February 1708 in full vaUdity, as elsewhere
shown; and in sequence too to the protests -executed on a
thousand occasions in old Scottish history, " for remeid of law
at proper time and place," i.e. before the supreme court of law
in Scotland, the Court of Session, to which every Scottish
subject is entitled to resort for redress in matters of dignity
no less than in ordinary civil causes — and indeed with more
marked specialty and significance. So far from being of the
empty character attributed to them by the Lord Clerk Eegister,
and " not of the slightest value," as Lord KeUie qualifies them

SECT. HI. THE EAELDOM OP MAE. 167
in his Letter to the Peers, they are of very substantial weight
and efficacy.
As already said, I reserve such observations as I may wish
to make on the suggestions of the Lord Clerk Eegister with
respect to the Eoll of Scottish Peers for a future Letter.

168 THE EAELDOM OF MAR. let. xir.

LETTEE XIL
RESOLUTION AND DEBATE REGAEDIN6 THE UNION EOLL.
I HAVE now to chronicle a still further and the latest stage
of development in the Mar question, a motion and a debate in
the House of Lords, and the Eeport of a Select Committee
appointed in consequence of that debate to consider that ques
tion, the result of which not only affects the rights of that
ancient earldom, but brings the question between the law of
the land and the assumption by the House of Lords of auto
cratic power with regard to peerages into such pronounced
and absolute antagonism, that it can only be through a wise
and prudent reconsideration of their position that the House
can escape (so far as I can see) from the inevitable conse
quences of a colUsion.
I must preface my report and criticism by a brief narrative
of the circumstances out of which the debate and what fol
lowed upon it originated. Section I.
The Buke of Buccleuch's Resolution.
The election at Holyrood had taken place on the ¦22d
December 1876 ; the minutes of the proceedings, including the
Protests lodged by myself and others, had been transmitted
in due course by the Lord Clerk Eegister to the House of
Lords; and non-official reports of what took place had been
circulated through the country by the press. Lord Kellie and
Lord Bedesdale, the Chairman of Committees, each of them
determined to take notice of what had passed, although on
distinct grounds — Lord KeUie as affecting his own position as
affirmed by the House of Lords and impugned by Lord Mar;
Lord Bedesdale, in order to prevent a recurrence of Lord Mar s

SECT. L THE EAELDOM OF MAE. 169
interposition, but also, as I infer, on broader grounds. Lord
Kellie accordingly addressed a Petition to the House of Lords,
which was presented by the Duke of Buccleuch on the 5th
AprU 1877 ; and the noble Duke gave notice of his intention
to move a Besolution in conformity with it on the 21st instant.
The motion was not brought forward, however, till the 9th
July, when a debate took place, resulting in the withdrawal of
the Eesolution, and the appointment of a Select Committee " to
consider the matter of the Petition of the Earl of Mar and
Kellie presented on the 5th of June 1877, and the precedents
applicable thereto, and to report thereon to the House." The
Select Committee presented their Eeport (entitled) " On the
Earldom of Mar," on the 27th July, in which they recommended
a certain course of action to be adopted in the event of a claim
to vote being made by the heir-general at any subsequent
election. Lord Mar, under advice, has not offered to vote at
any election that has since been held ; and no change in the
situation has thus occurred. It wiU be seen hereafter on what
grounds Lord Mar has been thus advised.
The march of events arising out of the election of 2 2d
December 1876 and culminating in the Eeport of the Select
Committee having been thus sketched as from a distance, we
may now approach nearer, and mark the aspect and character
of those events and the personality of the actors with a closer
scrutiny. The Petition of the Earl of " Mar and Kellie " addressed to
the House of Lords prayed that their Lordships " may be
pleased to order and direct that the Lord Clerk Eegister of
Scotland or the Clerks of Session officiating at the elec
tions of Peers of Scotland shall, at all future elections of
Peers of Scotland, call the title of Earl of Mar on the Boll
used at such elections in the precedence declared and estab
Ushed under the resolution and judgment of this Eight
Honourable House ; and that the title of Earl of Mar may not
hereafter be called at such elections in any other place, — ^your
petitioner by this prayer to your Lordships not desiring or
seeking to obtain for himself a precedency to the prejudice of
any other peer, nor in any manner to disturb the ranking of
any of the peers who may now have precedence above him."
It will be recollected that by the Order of the 26th February

170 THE EAELDOM OF MAE. let. xii.
1875, directing the Lord Clerk Eegister to receive the vote of
Lord Kellie as Earl of Mar when that earldom was caUed in
the ascertained order of precedence on the Union EoU, a
precedence was given to an earldom, asserted to have been
created in 1565, over seven other earldoms created during
the century previous to that date. The tenants of three of
those dignities protested against this invasion of their rights ;
and I myself, supported by the Marquess of Huntly and
Lord Napier, protested on behalf of aU the peers and dig
nities, actuaUy enjoyed or dormant, thus aggrieved. Neither
Lord KelUe nor those responsible for the Order of the 26th
February 1875 can be supposed to have been aware of the
effect the Order would produce in this respect; and Lord
KeUie took the course of a man of honour as weU as of good
sense in disclaiming any wish to profit by the inadvertence,
and petitioning for reUef from the embaiTassing position in
which he was placed by its consequences. The prayer of the
Petition was in other respects tantamount to a proposal that
the Union Eoll should be altered by the excision of the
original Earldom of Mar, ranking from 1404 (or, by the
acknowledgment of Lord Eedesdale, from at latest 1457), but
which Lords Chelmsford, Bedesdale, and Cairns assumed in
their speeches to be extinct, and by the interpolation of the
newly -discovered earldom of 1565 under this latter year, — the
alteration in question to be effected by the authority of the
House, which was assumed to be sufficient; whUe the fact
that the date of 1565 was specified in the Eesolution of 1875
as that of the creation of the earldom recognised as in Lord
KeUie, was construed in the Petition, and subsequently repre
sented by Lord Eedesdale in the House of Lords, as a formal
declaration and establishment by the House of the precedence
which the dignity in question was henceforward to hold upon
the Boll, and which therefore the House was empowered to
imprint upon that document. The Petition was grounded
upon the aUegation " that the decision given by the House," i.e.
the Eesolution of the Committee for Privileges of the 25th
February, confirmed by the House on the 26th, "was an
unanimous decision ; and that all the noble Lords who gave
judgments in favour of the Eesolution expressed decided
opinions that there was no other dignity of Earl of Mar iu

SECT. I. THB EAELDOM OF MAE. 171
existence than the one created in 1565." The first clause of
this aUegation may pass without observation ; but the second
suggested the searching question whether the opinions ex
pressed in the speeches of noble and learned Lords addressed
to a Committee of Privileges are, as they have been lately
and officiaUy styled, "judgments ;" or whether they are merely
obiter dicta, entitled to the respect due to those who utter
them, but no more — as, in fact, I have already shown to be
the case in an early Letter of this series. It was obvious to
Lord KelUe's advisers that if the obiter dicta in question could
be imported into the Eesolution of the 25th February, the
Besolution itself would not only affirm the new and indepen
dent creation of 1565, but the absolute extinction of the
original earldom; and a reasonable ground could thus be
pleaded for the operation on the Union Eoll sought for by the
Petition. The Eeport, it may be added, of the Select Commit
tee, gave no countenance to the views and arguments thus set
forth. Passing over the anxiety of Lord KeUie to be reUeved
from his post of pre-eminence over the Earls created pre-viously
to 1565, the Committee discover a less generous motive latent
in the background. Their words are : — "Although the Petition
of the Earl of Mar and KeUie prays that the title of Mar may
be hereafter called in the precedence estabUshed under the
Eesolution of the House, that is, as an Earldom created in
1565, and not in any other place, yet it is obvious from the
Petition that what the petitioner desires is that Mr. Goodeve
Erskine should not be allowed to answer to the title of Mar
wherever it may be called, or to tender his vote." This, it wUl
appear, neither the House nor the Select Committee were
wiUing to sanction on the bare terms of the proposal.
The effect of Lord KeUie's appeal to the opinions expressed
in the speeches, and of Lord Mar's reply thus given, was neces
sarUy to compel a declaration from the law Lords and the
House as to the quality and character of the opinions declared
in the speeches in question, and to determine, in a word,
whether these speeches constituted "judgments" in the sense
recently attributed to them. The friends of Lord Mar and the
Scottish Peers generaUy ought to be extremely obUged to Lord
KelUe and the Duke of Buccleuch for having thus eUcited an
authoritative statement of the sense of the House on the grave

172 THE EAELDOM OF MAE. let. xii,
questions affecting their intervention in dignities thus brought
before them.
The Eesolution moved by the Duke of Buccleuch on the
9th July in furtherance of Lord KelUe's Petition was in the
foUowing words : — " That this House doth order that at all
future meetings of the Peers of Scotland assembled under any
Eoyal Proclamation for the election of a Peer or Peers to
represent the Peers of Scotland iu ParUament, the Lord Clerk
Eegister, or the Clerks of Session officiating in his name, do
caU the title of Mar iu the Boll of Peers of Scotland called at
such elections, in the place and precedence to which it has
been decided by the Eesolution and Judgment of this House
on 26th February 1875 to be entitled, according to the date of
the creation of that earldom, and in no other place, with a
saving, nevertheless, as weU to the said Earl of Mar and KeUie
as to aU other Peers of Scotland their rights and places upon
further and better authority showed for the same."
Lord Bedesdale's views as to the expediency of intervention
by the House of Lords in terms of Lord KelUe's petition and
by means of the Duke of Buccleuch's Eesolution were expressed
as follows in his speech in the ensuing debate. I cite them
here in order to clear my report of that debate of everything
not directly bearing upon the main topics upon which the
debate proceeded. After expressing his regi'et that the original
Order of the 26th February 1875 had not been expressed in
the form proposed by the Duke of Buccleuch's Eesolution, and
in answer to the question, " Why is it done now ? " Lord Eedes
dale proceeded: "Why is it done ? On account of the scene of
confusion and trouble which took place at the last peerage
election in Scotland; when a person came in who had been
declared and adjudged h'y this House not to be Earl of Mar,
and voted as Earl of Mar " — or rather, I must interpose, offered
to do so, but was denied his right to vote and treated as an
intruder; while the declaration and adjudication against him
asserted by Lord Eedesdale existed solely in the noble Lord's
impression that the speeches of Peers in Committee for Privi
leges amounted to legal judgments, and were thus to be under
stood as incorporated into the Eesolutions of the House re
ported to the Sovereign. " Under these circumstances," ie. of
" confusion and trouble," Lord Eedesdale proceeded, " it became

SECT. L THE EAELDOM OF MAE. 173
necessary that the House should take care that that circum
stance should not recur again ; and therefore it is proposed
that the House should come to a Besolution that the Earl of
Mar shall be called in the place which was adjudged to him,
and not be caUed in any other place, there being no person
who has shown any right to be called in any other place."
The Duke of Buccleuch's motion was thus intended, by Lord
Bedesdale's frank admission, to serve a double purpose : to
relieve Lord KeUie and confirm his position, and to bridle the
freedom of action of Scottish peers at the elections at Holyrood
in revival of the control exercised, or rather attempted to
be exercised, over those elections during the last century ;
although the difference of times is indicated by the fact that
it was now attempted to do by a Eesolution that which was
then attempted by marching a company of soldiers into the
court of Holyrood House to overawe deliberation.
I have now to remark that the noble Duke's Eesolution, as
originaUy placed on the notice-book, ended with the words
" aud in no other place," the paraUelism which existed between
Lord Kellie's Petition and the Besolution ending there — the
words of salvo, beginning " with a saving nevertheless," etc.,
being the result of an afterthought. These words are not
perhaps very clear ; but they were understood by the House as
denoting an impression which had been graduaUy gaining
ground, not only in the Earl of Kellie's and the Duke of
Buccleuch's mind but in that of Lord Bedesdale, during the
period intervening between the 5th April and the 9th July,
that there might be some risk of going too far, that it would be
prudent as well as just, to qualify the concession asked for by
Lord Kellie by a provision saving any rights which might after
all be hereafter found to exist in the heir-general under the
original Earldom of Mar. It is dangerous in the warfare of
sword and spear to make a change in the front of the line of
battle in face of the enemy; but in the bloodless conflict
between antagonistic rights in the lists of Themis such changes
are imperative on men of honour when they detect a flaw in
their own reasoning, or discover that they are in danger of
committing cruel injustice in the unguarded exercise of power.
The change of front in the present case betokened coming
defeat on the main point of Lord Kellie's petition and the Duke

174 THB EAELDOM OF MAE. let. xii.
of Buccleuch's Eesolution ; but Lord KeUie and the Duke were,
I am convinced, too honourable and just to hesitate for a
moment as to the course they should pursue. Lord Eedesdale
himself, more slowly and reluctantly, appears to have acqui
esced in a similar cou'viction, and given it equaUy frank
expression, even before the debate of the 9th. In his speech,
already cited, he added words, not quite consistent indeed with
those I have quoted, but which testify to this : — " And now, if
Mr. Goodeve Erskine wants to come forward and make good
his claim to the Earldom of Mar, and if he can adduce e'vidence
that ¦will satisfy the House that he is entitled to what he
claims, the House must give it a very different place from that
in which the Earl of Mar stood upon the EoU, namely, of the
date of 1457 " — which Lord Eedesdale insisted was the proper
date of the precedence recognised by the Decreet of Banking,
although erroneously whether as respected the original Earldom
or the Earldom of 1565. " He " (the heir-general) "could not
come in in that place," i.e. 1457, "for he had no claim to come
in in that place. He must come in at a very much earher
period, which is what is meant by all those who talk about
this very ancient title of the Earl of Mar." These latter
observations touch upon the question of the Decreet of Bank
ing, which I have already dealt with, and need not here recur
to. What is of importance at the present moment is the fact
that Lord Bedesdale's reference to " Mr. Goodeve Erskine," and
the admission that the ancient earldom may be stUl existing
although dormant, are in accordance with the sa'ving clause at
the close of the Duke of Buccleuch's amended Eesolution, and
in simUar correlation with the doubts recently felt which sug
gested the justice and expediency of such a salvo. Lord
Eedesdale, I may add, had expressed a similar view in a letter
to the Times of the 6th July 1877, in answer to a paper of
my own on the subject of the Duke of Buccleuch's projected
motion, pubUshed in that journal on the 2d July 1877, in
which letter, after expressing his former conviction that the
original earldom was extinct, he wrote : — " The Besolution pro
posed by the Duke of Buccleuch only gives the necessary
instruction to the Lord Clerk Eegister in accordance with the
decision of the House, following aU precedents in such cases"
— but none of which, it afterwards appeared, could be produced

SECT. I. THE EAELDOM OF MAE. 175
— " and in no way prevents Mr. Goodeve Erskine estabUshing
his right to the ancient Earldom of Mar at some future time, if he
cau find evidence to prove it." Messrs. Grahame and Wardlaw,
Lord KeUie's agents, I may also remark, wrote in a letter
printed in the same number of the Times as Lord Bedesdale's,
and also in comment upon my own paper, as foUows : — " The
supposed rights of Mr. Goodeve Erskine are in no manner
whatever affected by the Petition which our cUent has pre
sented to the House of Lords. The late Earl of KeUie and his
son, our present cUent, successfully petitioned the Queen to
admit their right to the dignity of Earl of Mar, and they
respectively based their claims on the ground that the existing
peerage of Mar had been created by Queen Mary in 1565 in
the person of the then Lord Erskine, and that the ancient
dignity of Mar had been attached to the landed earldom and
had been extinguished when that earldom was broken up iu
the fifteenth century. These claims were opposed by Mr.
Goodeve Erskine, who, by his Petition to the House of Lords
in opposition, brought his case directly under the jurisdiction of
the House," — a novel and ingenious mode of reducing Lord
Mar to the position of a claimant, but which I do not perceive
to have found acceptance elsewhere. ..." On the 25th of
February 1875, . . . the House decided that Queen Mary's act
was not a restoration but a new creation, and that our present
client, the present Earl, as the heir-male of the grantee, was
entitled to that dignity. The Petition recently presented only
seeks to give full effect to that decision of the House. . . .
The Decreet of Banking, drawn up in 1606, is extremely
imperfect and incorrect, . . . the place adjudged to the Earl of
Mar is as erroneous, according to Mr. Goodeve Erskine's con
tention, as it is inconsistent with the decision of the House of
Lords. . . . Our client is certainly justified in seeking to have
the ranking amended, as it is wholly inconsistent with any
place which can possibly be due under any hypothesis to the
Earldom of Mar. Mr. Goodeve Erskine therefore cannot be
prejudiced by any Order which can be made on this Betition ;
as, if he could establish any right to the ancient Earldom of
Mar, his title would, according to the ordinary practice of the
House, be inserted in its proper place in the EoU of the Peers
of Scotland." It appears to me but justice to Lord Kellie to

176 THE EAELDOM OF MAE. let. xii.
cite these observations in connection with Lord Bedesdale's, as
sho'wing that he participated with the noble Chairman of Com
mittees and the Duke of Buccleuch in these newly awakened
con'victions — a fact which would not otherwise appear, no
official utterance having taken place on his part subsequently
to the presentation of his Petition. The result is that, whereas
Lord KeUie and his adherents had strenuously maintained that
the original earldom was extinct, and adjudged to be so by the
Committee for Privileges in 1875, up to the presentation of
Lord Kellie's Petition and the notice of the Dulse's motion in
its original form, without the salvo, they had become conscious
previously to the debate of the 9 th July that the question of
the survival of the ancient earldom was stUl an open one ; and
their anxious endeavour thenceforward was to reconcUe the
prayer of the Petition for an alteration of the Union Eoll with
that admission. Nothing, I repeat, but the claims of truth and
justice pressing on the minds of honourable men, could have
induced such a concession.
I cannot overlook the fact, that in his recent Letter to the
Peers Lord Kellie insists once more that the " Judgment " of
1875 extinguished the original dignity. His words are : — "Not
only was the Eesolution unanimous, but the grounds of judg
ment as given in the speeches of the three noble Lords were
identical, namely, that the ancient title of Mar was extinct,
and the existing title was created by Queen Mary, and Umited
to heirs-male." It is quite possible that Messrs. Grahame and
Wardlaw may have written this letter apart from Lord KeUie's
consent, or that Lord Kellie himself may see the question now
in its former light. But the fact stands out that the view of
this particular question — the absolute extinction of the original
earldom under the report of 1875 — was departed from in the
manner I have above shown by Lord KeUie's most active
friends previously to the debate of 9th July 1877. The fact,
which wiU shortly be pointed out, that the House of Lords fully
recognised in 1877 that the question whether the original
earldom was extinct or not is still an open one, seems to have
escaped Lord Kellie's recollection when he wrote the Letter to
which the present series of Letters is my reply.

SECT. II. THE EAELDOM OF MAE. 177
Section II.
Debate of 9th July 1877.
Having thus taken estimate of the 'views and attitude of the
principal persons concerned, I proceed to the great debate of the
9th July 1877. I call it " great," inasmuch as, short in duration,
and passing almost without observation, as most turning-points
do in history, it determined — taken in connection with the
Eeport of the Select Committee which sprang out of it, and the
adoption of that Eeport by the House — the attitude of the House
of Lords for at least the present generation, as to the extent and
limitation of its powers of intervention in relation to Scottish
and indeed all peerages, the House retracing its steps towards
a juster appreciation of its powers in some most important
matters, but in others plunging stiU deeper into what I cannot
but consider a quagmire of error and confusion. It may assist
the reader in his perusal of what follows, if I notice among the
favourable points a repudiation by the noble and learned
advisers of the House of all power of legislation apart from
the other House of Parliament and the Sovereign ; and among
the unfavourable, the arrogation to the House of a right of
jurisdiction over peerage claims and rights, in absolute over
sight, and I think I may say exclusion, of the Sovereign, and
of such a character as to constitute the House of Lords in this
class of claims a Court of first and last instance, without
appeal, and practically a Star-Chamber. The repudiation of
the right of independent legislation must be credited to a
strong sense of constitutional obligation on the part of the
noble and learned Lords who addressed the House. On the
other hand, the arrogation of exclusive jurisdiction in dignities
cannot be imputed solely to the deliberate impulse of their
personal convictions, but to the autocratic traditions of the
House, transmitted from the EngUsh House of Lords before
the Union, but which were never hitherto thus formaUy
crystallised ; and to their honest and unquestioning acceptance
of an Act of Parliament passed in 1 847 in an unguarded moment,
which appeared to them the only means of escape from the
embarrassment into which the report upon Lord KeUie's claim
and the Order of the 26th February 1875 had betrayed them.
VOL. II. M

178 THB EAELDOM OF MAE. let. xii.
I shaU show, in fact, that the Act of 1847 is in itself uncon
stitutional and Ulegal, -which, moreover, cannot be brought to
bear upon the case of Lord Mar, inasmuch as his case does not
fall within its provisions.
The first part of the debate was taken up by speeches of
lay peers interested in the Mar case — among whom I must of
course include the noble chairman of committees. Lord Bedes
dale, who stood forward as the special exponent of the views
which the House was called upon to assent to and enforce.
The Duke of Buccleuch opened the debate in support of
his Eesolution in his usual simple and manly way, represent
ing it as carrying out then what is usuaUy done " at once "
after the decision in favour of a claimant, 'viz. the sending an
Order to the Lord Clerk Eegister to " insert the peerage accord
ing to its proper place on the EoU." .He aUeged various
instances of this having been done, and described the Besolution
as praying that the Earldom of Mar " may be placed on the Eoll
according to the date assigned by the judgment of the House,
i.e. 1565," — "that it may be called according to the precedents
of former times, in the place to which the Eesolution of 1875
says that it is entitled, ' according to the date of its creation,
and in no other place.' " He called attention to the saving
clause which had been added to the original Eesolution, observ
ing that " this would not interfere with any other peerages which
are in existence or may be created," — a word which probably
escaped the noble Duke instead of " recognised," as we have
seen in the speech of the late Lord Clerk Eegister at Holyrood,
above given. " If," he concluded, " any gentleman claims the
ancient Earldom of Mar, and can prove his title to that peer
age, there is nothing to interfere in any way whatever with
his doing so." The noble Duke spoke in strong depreciation
of the Decreet of Banking and the Union Eoll, the Decreet
not being final, and the Union Eoll neither embodied in the
Act of Umon nor to be found m the Treaty of Union. I need
say nothing myself here upon this point.
The Duke was foUowed by Lord Huntly. He observed
that the instances mentioned by the Duke were aU of peerages
being added to the Eoll, and none of peerages being struck off,
as the Eesolution proposed to do in the case of the ancient
Earldom of Mar ; and it would be iiltra vires for the House to

SECT. II. THE EAELDOM OF MAE. 179
strike a peerage off the BoU. " This Besolution proposes to
strike the old Earldom off the Eoll, and to call the Earl of
Mar in his new place ; in fact, it puts a fresh earldom upon
the EoU, but it also allows another Lord Mar, if he likes to
come to your Lordships' House, to claim the ancient Earldom .
You might have Lord Mar coming to this House next year
and claiming to be put back according to the Decreet of Banking
upon the Union EoU, as dating from the year 1457." The
Eesolution, Lord Huntly added, " affects very deeply every
member of the Scottish Peerage. . . . They are a very small
and limited body at the present time. ... To strike off any peer
dating from the fifteenth century, . . . and substitute in its
place a modern peerage, . . . would be contrary to the spirit
which ordinarily governs your Lordships," would be " contrary
to precedent," and ultra vires.
Lord Eedesdale followed, with his usual energy. In abridg
ing these speeches, I keep, as I have stated, to the main points
upon which the House, through the law Lords, Lord Selborne
and the Lord Chancellor Cairns, declared their opinion, and
which are involved in the acceptance by the House of the
report of the Select Committee. " The House," said Lord
Eedesdale, " has come to a resolution which has been sub
mitted to the Crown as to the placing of the Earldom of Mar,"
this being the Eesolution of 25th February 1875, reporting in
favour of Lord Kellie's claim ; and I may observe that this
reference to the Crown as an ultimate authority is the only
one throughout Lord Bedesdale's speech. " The petition of the
noble Earl is that the House shall, according to the custom in
all cases where a date has been assigned to a peerage of Scot
land, order the Lord Clerk Eegister to caU the peerage as of
that date. That is a matter perfectly within the jurisdiction
of the House. It has been done on numberless occasions ; and
it is the reasonable and the only right course to be pursued in
the matter."
" The noble Marquess," proceeded Lord Eedesdale, " says that
we are asked by this Eesolution to strike a peerage off the Eoll.
The Eesolution does nothing of the sort ; it only says that a
peerage shall not be called as of a certain date ; and why ?
Because it has been most clearly proved that there is no peer
age of that date in existence. There never was an Earl of Mar

180 THE EAELDOM OF MAE. let. xii.
sitting in 1457." This is a little inconsistent with the admis
sion that " Mr. Goodeve Erskine " could stiU claim that peerage
before the House of Lords. " It is a thing that we cannot very
clearly understand or comprehend certainly, but the Com
mittee for Brivileges inquired into the matter, with evidence
before it which was never brought before the Commissioners
who framed the Decreet of Banking, or any other tribunal," —
a rash speech in presence of the Decreet of 1626 — "and deter
mined that the first Lord Erskine who ever sat as Earl of Mar
took his seat upon a particular date " (that is in virtue of a
new creation on a particular date), namely 1565. That was
the Eesolution of the Committee for Pri'vUeges, and that was
the award of the House, and that has been the Order of the
House. Lord Bedesdale then referred to the burning question of
jurisdiction, with especial reference to my own remonstrance
on the subject, originally set forth in my first Protest, aud once
more in the memorandum which I had written in April, which
had been circulated by Lord Mar's friends, and which was
printed in the Times a few days pre'viously to the debate.^
"Now what is reaUy," asked Lord Eedesdale, "the ground
which has been taken up ? Look at that statement which
appeared in the newspaper from a noble member of this House.
As he is not here " (I was absent at the time), " I may men
tion him — the Earl of Cra'wford. What is the distinct ground
upon which he goes ? It is that this House has no jurisdic
tion to determine anything about Scotch peerages. Is the
^ My words were : " My belief is that the House has no legal power to
deal with the Union Roll by way of excision or correction ; but even if they
have, compliance witb the second part of Lord KeUie's prayer would be
absolutely ultra vires on their part, ou the ground of one of the fundamental
maxims of peerage law aud practice, as controlling the action of the House
of Lords in matters of peerage. Lord Kellie grounds his request on the
statement, ' that all the noble Lords who gave judgment iu favour of the
Resolution expressed decided opinions that there was no other dignity of
Earl of Mar iu existence than the one created in 1565.' But such opinions,
however decided, amount to nothing unless they are formally embodied in
the Resolution ; and the conditions under which they can be so embodied
are distinct and precise. The House, having no original or inherent juris
diction iu dignities, and acting merely as ad'visers of the Sovereign, the
ultimate judge, is incompetent even to express an opinion, much less to pass
sentence, or take action upon the right of a man to a dignity, or upon a
dignity abstractly, which right and dignity are not before them for con
sideration, by reference from the Sovereign on petition by a claimant ; and

SECT. II. THE EAELDOM OF MAE. 181
House going to submit to such a principle, or to admit such a
claim as that? This House has always held, and properly
held, that it is the only tribunal to determine the right to a
peerage." (I do not know whether Lord Chelmsford, who laid
down the law so lucidly in the Wiltes case, was present on
this occasion, but if so he made no sign.) " The proposal of
the noble Marquess, namely, that upon this question, which is
a simple one according to order and precedent, the House
should be held to declare that it has no jurisdiction in the
matter, seems to me, my Lords, to be one of the most extra
ordinary propositions that ever was made.
" Then the noble Marquess says that this Eesolution would
order a peerage to be put back. It amounts simply to this,
that having found the peerage to be of a particular date, we
order the peerage to be called as of that date. There was
another claim put forward by a person who did not nominally
come forward as a claimant, but as an opponent, and that was
that the earldom did not date from 1565, but from a much
earUer period. He could, however, show no ground for it, and
the decision was that that was the only date of the Earldom of
Mar. And why ? Because from the time wben the last heir-
male died in 1377, down to 1565, there was no person sitting as
Earl of Mar who could claim in any way whatever to have any
descent from the ancient Earls of Mar. The House came to the
conclusion, therefore, and naturaUy, that there was a new
creation at the time when the first of the Erskines came in.
if such unwarranted opinion be hazarded, the Courts of law take no notice,
and act, if necessary, independently of it. The law on this point, as laid
down by Lord Chief -Justice Holt in 1694, is decisive. . . The application
of this weU-known case is peremptory in the present instance. The heir-
general of the ancient Earldom of Mar, strong in his legal possession, has
never claimed the earldom in question by petition to the Sovereign ; the
Sovereign consequently has not referred such petition to the House, the
House necessarily has had no such claim before it. The ouly claim before
it has been that of Lord Kellie to a totaUy distinct and modern earldom,
stated to have been created in 1565, against which claim the heir-general
appeared in opposition in defence of his right under the original creation, etc.
The result is tbat the question of the original Earldom has never been re
ferred to the House by the Queen — has never been before the House iu such
a manner as to justify them in pronouncing an opinion upon it, much less in
taking action upon it ; and as the House has no original jurisdiction or power
of interference, it acted ultra vires in issuing the Order which worked such
injustice at tbe late election, and wiU act ultra vires now, if it issues any
Order upon the second portion of the petition of the Earl of KeUie, granting
its prayer."

182 THB EARLDOM OF MAE. let. xii.
But I do not enter into the question whether that decision was
right or wrong ; it was the decision of the House. The only
thing that is now asked of the House is, in accordance with
that decision, to order the name to be called in the place which
that decision has given to it."
Passing over the expression of Lord Bedesdale's regret that
the Order now sought for had not been made two years ago,
and referring to the " scene of confusion and trouble " at the
recent election, which rendered it " necessary that the House
should take care that that circumstance should not recur again,"
and to the opportunity still open to the heir-general to come
forward and make good his claim. Lord Bedesdale concluded
as foUows : —
" Now, my Lords, looking at the objections which have
been raised to the proposal of the noble Duke, I do not see
how it is to be met. It certainly has not been met yet. I
.should like to know what grounds there are wluch could
justify the proposition of the noble Marquess that this House
has no right to order a Peerage which is found on the EoU at
a particular date to be called at another date. What objection
can any man take to the Eesolution by which that is proposed
to be done ? It seems to me that the natural consequence of
the Besolution to which the House came in 1875 — namely,
that the placing, aud the only placing, of the Earldom of Mar
was in 1565 — is that it must be caUed in that place, and that to
call it in any other place is improper. I defy anybody to find
any good reason for saying that the places of the peers on the
Boll can never be altered, and that therefore the House cannot,
upon further inquiry and upon fuller evidence, come to the
conclusion that the placing of the Earldom of Mar at the date
of 1457 was wrong, and that it ought to-be called in another
place. That is all that the House is asked to do. It is askfed
to act in accordance with the Besolution which it came to in
1875 as to the place iu which that Peerage should be caUed,
and at the same time to order that it shall not be called in
another place, l^ecause no one else has proved, and I believe
no one is capable of proving, that it ought to be called in
another place."
[The concluding sentence of the noble Earl, in resuming
his seat, was not audible.]

SECT. II. THB EAELDOM OF MAE. 183
The last of the lay Peers to speak was Lord Mansfield,
the lineal heir and representative, I may interpose, of the Lord
Scone who was one of the Commissioners of 1606, and to whom
the task, inter alia, of defending the Decreet of that year was
naturaUy appropriate. After stating that there were pre
cedents for peers being put higher up on the roU of Peers, but
none for their being put in a lower place, he took notice of the
Dulie of Buccleuch's description of Lord KelUe and Lord Mar
as " rival claimants," pointing out that Lord KeUie had claimed
an Earldom of Mar totally different from the ancient one to
which Lord Mar had succeeded in the usual course of law.
" He stUl," said Lord Mansfield, " retains his Earldom of Mar,
and every Scottish peer in this House is in exactly the same
position. The noble Duke and every other peer of this House
knows perfectly weU that in Scotland you have not to go
through any form or ceremony whatever — you are merely
retoured heir to your peerage, and you take it; you do not
come to this House for it. It is in that position that the Earl
of Mar stands at the present moment : and, although in the
first instance he was opposed by the late Lord KeUie, who
claimed to be Earl of Mar of 1404, that claim was dropped,
and his son took up the position that he imagined a peerage,
or somebody imagined it for him, of the year 1565, and the
Committee for Privileges came to the conclusion that he had
proved his claim to a peerage of 1565, but they never said one
word about the peerage of 1404; therefore that peerage re
mains intact at the present moment."
Lord Mansfield proceeded to criticise the decision of 1875
as " a most extraordinary one, because it was a decision that
there was a peerage of 1565 which nobody had heard of before,
and which has no scrap or tittle of evidence of any kind to
support it. There is no patent or document of any kind which
can be produced to prove that there ever was that creation in
1565." Lord Mansfield made a further observation, which I
add, inasmuch as it answers to a certain extent Lord Bedes
dale's assertion, that the Committee for Privileges in 1875 had
evidence before them which would have altered the ranking in
1606 had the Commissioners of that year been aware of it.
" Tbe whole foundation of this supposed creation in 1565 rests
upon a very curious matter. There is a letter from a man of

184 THE EAELDOM OF MAE. let. xn.
the name of Bandolph, who, as your Lordships will remember,
was employed between Queen Elizabeth and Queen Mary. In
the postscript of that letter he says that the Earl of Mar was
made on such and such a day — the day before the marriage of
Mary and Darnley. My Lords, I have looked through the
evidence given upon this claim, and I find that that letter was
struck out — that it was not aUowed to appear in evidence ; and
Lord Chelmsford said (I beg the noble Lord's pardon, I did not
know that he was in the House, or I should not have named
him)— he said, ' This is mere gossip,' and ' the evidence had
better be rejected.' That letter having been rejected by the
Committee for Privileges, it is rather a curious thing that my
noble friend the Chairman of Committees, in giving his
opinion " (that is, in his speech in support of the Besolution
25th February 1875) "refers to it as that which decides the
whole matter." This criticism, I may interpose, substantially
correct, requires a few words of supplement, to render it
absolutely so.
Lord Mansfield touched upon the important point — in my
opinion, the vital point — although it made no impression upon
the law Lords, that " when the House comes to a Besolution of
this kind, they generaUy " (I should have said " invariably, as
in duty bound ") " report to the Queen, and take the Queen's
pleasure upon it ; but it is a very curious thing," he observed,
" that that very night the Order was sent down — whose doing
it was I do not know — to the Lord Clerk Eegister to insert
the name of the Earl of Mar in the EoU at the date of 1565."
Lord Mansfield then vindicated the character of the Decreet
of Banking of 1606 as " one of the most solemn Decreets that
ever was passed," pointing out, moreover, the essential fact that
the test of the precedency prescribed to the Commissioners was
the production of whatever evidence each several peer coidd
find to establish his right. " The only thing the Commissioners
could do was to fix the ranking according to the documents
produced ; " while a reservation was made in the Decreet, by
which a peer not ranked according to his proper place through
deficiency of evidence might be enabled to recover it (as I have
elsewhere shown), by process before the Court of Session, upon
whose decreet the roll could be amended — " not that any other
peer should be able to put him down lower, but that he might

SECT. II. THE EAELDOM OF MAE. 185
be able to put himself up higher." " We all know," observed
Lord Mansfield, " that the old Earldom of Mar is the most
ancient in Scotland, but the Lord Mar of 1606 was not able to
prove that, because the old charter was lost. However, Selden,
in his book of ' Titles of Honour,' mentions the Earldom of
Mar as being the oldest that was known, and says that he had
seen the original charter granting the Earldom. This charter
was lost, but, curiously enough, it is said to have been found
quite recently, in the course of a search for other papers, at
Lincoln's Inu. The original charter of the Earldom of Mar of
1090" (it should have been stated of 1171, although not the
original creation) " is said to have been found. Whether it has
or has not, I cannot say, for I have not seen it ; but it is evi
dent that it is possible that the case may arise of an Earl of
Mar claiming the title of Mar as of the date of 1090, because,
by a provision in the Decreet of Banking, the Earl of Mar would
be able to go up higher, although no peer can be put lower."
I have already spoken of the charter of 1171, and need not
recur to the subject.
'' Now, my Lords," the noble Lord continued, " that being
the case, what is the proposition which is made at the present
moment by the noble Earl on my right? He proposes that
you should strike out the Earldom of Mar of the date of 1457
and insert it at a later date as an earldom of imaginary creation
by Queen Mary ; but for what reason that is to be done, except
it is that they have got into a mess with their Orders " (i.e. the
second and third Order of the 26th February 1875), " I do not
know. The Committee for Brivileges made an unfortunate
report ; they came to what I consider a most erroneous con
clusion, supported by no facts whatever. I have no doubt the
noble Lords who came to that conclusion took great pains with
the case. They must have taken immense pains, because to
give a judgment when aU the facts are against you must be a
difficult thing to do."
Lord Mansfield then caUed attention to a most pertinent
consideration : — " It seems to me very curious that the Com
mittee did not consult their legal advisers upon the law of
Scotland. If they had done so, although they might perhaps
have come to their decision, they would certainly never have
said that one thing which proved it to be right was, that, although

186 THE EAELDOM OF MAE. let. xn.
Queen Mary's charter was dated the 23d of June 1565, it was
not until the 1st of August in that year that Lord Mar took
his seat, and therefore he could not have sat under it." I note
Lord Mansfield's observations here, because this was a second
of three points of evidence which Lord Eedesdale says the Com
mittee for PrivUeges had before them in 1875, which the
Commissioners of Banking had not before them in 1606, and
which would have induced a ranking merely from 1565. " Now,
my Lords," said Lord Mansfield, " this was a territorial title,
and everybody in Scotland knows that it requires a month or
more to make up your titles and get infeftment. These pro
ceedings are not known to English peers, but they are known
to aU of us, because we succeed to our property in that way.
The process is very much more rapid at the present time, but
that was the case when- I succeeded to my property, and this
being a territorial peerage, that accounts for the delay which
took place between the 23d June and the 1st August. The
fact that Lord Mar did not sit in the meantime as Earl of Mar
is no difficulty at all in the case." I am glad to be able to
cite this living testimony of a peer holding by feudal tenure in
Scotland to what I have proved in an earUer page by law and
practice as current in the sixteenth century.
Lord Mansfield ended by expressing his conviction, as Lord
Huntly had done, to the assembled Beers, that " you would be
proceeding ultra vires in ordering the ancient earldom of Mar
to be struck out. My Lords, up to the present time the House
of Lords has always considered the Union Eoll as part and
parcel of the Act of Union, and has attached to it the import
ance and authority which attach to the Act itself. The ques
tion has been asked. What can be done ?. The only thing
which could have been done would have been to have referred
the matter to the great tribunals in Scotland, not to any
tribunal in this country. Whether or not it might have been
considered by your Lordships that this was a case within the
jurisdiction of the Court of Session I know not; but I have
carefully gone through the whole of this question, and there is
one thing whicli presses very much upon my mind, and that
is, that the opinions of the Attorney-General, Sir Bichard
BaggaUay, and of the Solicitor-General for Scotland, Mr. Millar,
now Lord Craighill, were adverse to the conclusion at which

sect. II. THE EAELDOM OF MAE. 187
the Committee arrived; but in defiance of that advice the
Committee for Privileges came to the conclusion they did.
Therefore there were lawyers on the one side, and there were
lawyers on the other side : and I suppose that no one will
dispute that Sir Bichard BaggaUay and Mr. MUlar were very
well quaUfied to form and to give an opinion upon the ques
tion. I trust," concluded Lord Mansfield, " your Lordships
will not pass the Eesolution which has been moved by the
noble Duke."
The lay Lords having thus spoken, including the noble
Chairman of Committees, it was evident that what the House
in general was entitled to expect would be the deliberate
opinions of the Lord Chancellor, and any other law Lords who
might address it upon the questions of principle, and the
application of principle affecting the merits of the Duke of
Buccleuch's Besolution, — those questions arising substantiaUy
out of the petition of Lord Kellie, together with the appeal of
Lord Eedesdale, to the House in vindication of the supreme
jurisdiction of the House in Scottish Peerages, which I had
ventured to question in my recent memorandum, and in the
Protest on which that memorandum was founded. Answers to
these questions of principle were accordingly supplied by Lord
Selborne, who spoke immediately after Lord Mansfield, and by
Lord ChanceUor Cairns, in words admirably precise and clear,
although, as it appears to me, they rather felt their way towards
the conclusions they arrived at from the basis of preconcep
tion than from that of fundamental assurance. Their views,
however, checked by the Eeport of the Select Committee,
appointed, as we shall see, on the suggestion of the Lord
Chancellor, must now be considered as those of the House for
aU practical purposes, — the question, nevertheless, whether
those views are in every point justified by law, practice, and
precedent, remaining untouched in the background, and liable
necessarUy to correction by the courts of law in the future. I
say " checked " by the Eeport of the Select Committee, inas
much as it will be found that one important point laid down
or taken for granted by Lord Selborne was departed from under
the collective and overruling sanction of the Eeport, as adopted
by the House.
I shall endeavour to present the speeches of the noble and

188 THE EAELDOM OF MAE. let. xii.
learned Lords in the most succinct form, with such comments
as may appear necessary, but referring the reader to the
Appendix for the entire text, as taken down verbatim by the
official short-hand writers of the House of Lords.
Both speeches were in strong deprecation of the Duke of
Buccleuch's Besolution, but not altogether on the same grounds.
The main point on which the noble and learned Lords agreed
was that the adoption of the Eesolution would commit the
House to the assumption of a legislative power which it did not
possess. On the other hand. Lord Selborne was opposed to the
salvo appended to the Eesolution, as weakening the effect of
the Besolution of the 25-6th February 1875 in favour of Lord
Kellie, and tending to a reopening of the question as to
the right of the heir-general; whereas the Lord Chancellor
considered that it was that very salvo which rendered the Duke's
Eesolution less objectionable than it was when originally
placed upon the notice-book, that is to say, without the salvo.
But the points of agreement and diversity wiU become more
apparent as I analyse the successive arguments. Lord Sel
borne's deprecation of any reconsideration of Lord Mar's right,
coupled 'with the fact that he had been (as Sir Boundell Palmer)
Lord Mar's leading counsel up to the moment of his promotion
to the woolsack in 1872, cannot be imputed to any change of
view with respect to that right, but simply to what appeared
to him the overruling necessity to support the credit of the
judgment of the Committee for PrivUeges, as adopted by the
House in 1875, to the uttermost.
Both Lord Selborne and the Lord Chancellor laid it do'wn
as the indispensable basis of discussion that the decision of
1875 must be considered as final, right or wron", and not to he
questioned. Lord Selborne began his speech by declining to
follow Lord Mansfield into the grounds of the decision of 1875.
" We are all very well aware," he observed, " that both before
that decision and afterwards there had been various persons
who have entertained a different opinion upon the merits of the
question ; but your Lordships wUl, I think, hold that, it having
been decided in one particular way by a Besolution of your
Lordships' House, that is a determination which, so far as it
goes, is binding upon your Lordships, and that this discussion
must proceed upon that assumption." Lord Selborne accord-

sect. II. THE EAELDOM OF MAE. 189
ingly declined " going at all into the question whether the
decision of 1875 was right or wrong." This, I may observe,
was practically indorsing Lord Bedesdale's appeal on the ques
tion of jurisdiction, and echoing his words, — " I do not enter
into the question whether that decision was right or wrong ; it
was the decision of the House." Lord Chancellor Cairns
similarly stated, after noticing the decision of 1875, "My
Lords, that conclusion having been arrived at by the Com
mittee for Privileges, and confirmed by your Lordships' House"
— the Queen's approval being thus taken for granted as a
matter of course, however technically requisite — " I apprehend
is conclusive for aU practical purposes in this House ; " and he
proceeded to express his surprise that Lord Mansfield had
"set at absolute defiance the conclusion at which the Com
mittee had arrived, the conclusion which had been confirmed
by the House," — still in oversight of the fact that the " confir
mation by the House was merely the adoption of the Eesolution
of the Committee as the expression of their own opinion and
advice to be sent up for the consideration, approval, or dis
approval of the Sovereign. "My Lords," continued Lord
Cairns, "it is not the custom of your Lordships to admit
argument which would be in direct opposition to a decision
which the House has already come to." I do not say that the
Lord ChanceUor and Lord Selborne were not justified in de
clining to rediseuss the decision ; but the true reason, I submit,
why such rediscussion was to be avoided by them in their
responsible position was, that in every such case the House,
after reporting its advice by way of Eesolution to the Sove
reign, becomes functus officio, cannot re'view its Besolution, and
the ultimate adjudication rests with the Sovereign, judging
according to law. But the authority and intervention of the
Sovereign was completely overlooked by the two noble and
learned Lords, as well as by Lord Bedesdale, and by every one
who took part in the debate except Lord Mansfield, who, like
Lord Marchmont in the Cassillis claim in 1762, stood boldly
forward as the Abdiel, " alone found faithful " to loyalty and
law, at that moment.
Lord Selborne founded his opposition to the Duke of
Buccleuch's Besolution on two grounds : — The first ground was,
that it was " not really consistent with what was resolved by

190 THE EAELDOM OF MAE. let. xii.
the House in 1875 ; while, if it were carried, it would, instead
of supporting and fortifjdng the authority of what was then
done, tend as much as anything could do to destroy and to
throw discredit upon it." The second ground was, that
acceptance of the Eesolution would commit the House to an
assumption of jurisdiction and power with regard to Scottish
Peerages and the Union Eoll which the House had never
hitherto exercised. The Lord ChanceUor went fully with Lord
Selborne on the second of these two grounds, but their views
were very divergent upon the former.
In support of the first point in Lord Selborne's first groimd
of opposition, viz., " that the Duke of Buccleuch's Eesolution
was inconsistent with the Besolution " — the noble and learned
Lord ought strictly to have said, the Order of the House — " in
1875," he observed, — "The noble Duke, in the first place,
affirms " — -in terms, I may interpose, of Lord Kellie's petition
and of Lord Bedesdale's speech — "that the Eesolution and
judgment of the House on the 26th February 1875 has declared
the dignity of Mar to be entitled to a particular precedence
according to the date of creation of that Earldom, which the
Eesolution of the House says 'v\'as in 1565. My Lords,"
observed Lord Selborne, " I do not so read the Besolution
which the House arrived at on the 26th of February 1875.
That Eesolution, after affirming that the petitioner. Lord
KelUe, had made out his claim to the dignity of Earl of Mar
created in 1565, and ordering that Eesolution and Judgment
to be transmitted to Scotland, proceeded to direct this," — what
follows being, as I have remarked, not a Eesolution but an
Order of the House, — " that at the future meetings of the Peers
of Scotland, ' for the election of a peer or peers,' ' the Lord
Clerk Eegister do call the title of the Earl of Mar according to
its place in the Eoll of Peers of Scotland, called at such elec
tion.' That was a very different thing indeed from saying, as
this Besolution does, that it shall be called according to the date
of the creation of the earldom. And, my Lords, I not only
say that the natural meaning of those words is that it should
be called according to the actual place which it had upon the
Eoll ; but I may appeal to what has just ne'w been said by the
noble Earl, the Chairman of Committees, who has virtually
admitted the same ' thing, because he says it was a pity that

SECT. II. THE EAELDOM OF MAE. 191
what is now proposed was not done at that time. (Hear, hear.)
Of course, if the words which I have read meant the same
thing with what is stated to be their meaning in the noble
Duke's Eesolution, it was done at that time. But, my Lords,
the words mean quite a different thing. They mean the place
which that earldom had and was entitled to upon the existing
Boll of Peers." Nothing, I may observe, can be more just
than the distinction thus drawn. The Duke of Buccleuch's
Eesolution, like Lord KelUe's petition, was framed for the
purpose of escaping from the embarrassment in which Lord
Kellie, and other Peers likewise, had been placed by the
operation ofthe Order of the 26th February 1875.
On the second point of Lord Selborne's first ground of
opposition he was, I think, less happy than in the rest of his
speech. At all events, he did not carry with him the assent of
Lord Cairns, nor that of the Select Committee afterwards. In
his anxiety to support and fortify the Eesolution recognising
the dignity of Earl of Mar created in 1565 as in Lord KeUie,
he endeavoured to import the reasons aUeged in the speeches
in Committee for PrivUeges into the Eesolution, so as to give
it the broadest possible construction against the heir-general.
" And now, my Lords," he said, " I will give a reason for what
I have said, that the authority of your Lordships' decision,
instead of being supported, would be really impeached a.nd
impugned if this Besolution were to be adopted. Although, no
doubt, the decision of the House of Lords does not in that
respect embody the grounds of the judgment delivered in the
Committee for Privileges," — Lord Selborne proceeding, like
Lord Cairns, on the assumption that the House of Lords is a
court of law, and delivers final judgment in peerage claims
irrespectively of the Sovereign or of any appeal on the part of
a claimant or party interested : — " Yet, as a matter of fact, we all
know, and we have been told so this evening, that the real
ground upon which the Committee for Privileges proceeded
was that in 1565 there was no Earl of Mar existing of earUer
date than that period, and that the ancient earldom had not
been restored by the means which, down to the date of that
decision, had always been supposed to have had the effect of
restoring it. Therefore, the decision asserted •virtually, though
not in form, that there was only one Earl of Mar, and that

192 THE EAELDOM OF MAE. let. xii.
there had been only one Earl of Mar since 1565, and that was
the holder of the earldom created in that year. But upon the
Union EoU and the EoU of the Beers of Scotland there always
had been an Earl of Mar standing, and therefore the place of
the Earldom of Mar (if there was only one) upon the Eoll of
Peers was its existing place upon the Eoll, and not any new
or different place." Lord Selborne proceeded to observe that
" the number of precedents which the noble Duke mentioned in
cases where new rights of peerage had been established, or
where peerages had been restored after attainder, which were
not on the Eoll before, and were then ordered to be put upon
the EoU, are no precedents whatever for taking away from an
existing peerage, which the principle of the decision determined
to be the only existing peerage at that time, its actual place
and precedence, whatever that might be, upon the Boll. The
Eesolution" (i.e. Order) "of 1875 merely said that that place
was to continue the place, and the present Eesolution would
not affect that. My Lords, as I understand this Besolution,
and as it has just been explained to your Lordships, it does not
direct a change in the Eoll, it does not direct the erasure of the
existing title of Mar from its existing place upon the EoU, and
the introduction of that same title in another place ; but it pro
poses that the Lord Clerk Eegister should be directed to call
the title of Mar in the place and precedence to which it would
be entitled according to the date of the creation of that earl
dom, that is 1565. The more ancient peerage would rank in
the earlier place upon the Boll, which this Besolution does not
alter, and the effect, therefore, of the Eesolution would really
be to introduce a second Earl of Mar into the EoU, lea'ving the
original earldom in its old place, and in that way to encourage
instead of repelling the idea that there were two Earls of Mar.
Anything reaUy more destructive of the authority of the deci
sion of 1875 I for my own part cannot conceive." It was not,
I must interpose, suggested by any one that an actual erasure
was contemplated by the Duke's resolution, but a virtual
striking of the ancient earldom off the Eoll ; and Lord Selborne
in the passage just cited entirely overlooks the correlative
words in the Eesolution, importing that the title shall he
called " in no other place" than under the year assumed to be
assigned by the decision, viz. 1565. It is of more importance

SECT. II. THE EAELDOM OF MAE. 193
to remark that Lord Selborne's attempt to import the opinions
pronounced in Committees for Privileges into the Eesolutions
was at variance with ancient principle ; whUe his anxiety to
support the finality of the decision in favour of Lord KelUe to
the exclusion of any reopening of that decision through recog
nition of the possibUity that there might be a stiU existing
Earldom of Mar of the original creation, led him very nearly
to the adoption of that doctrine of expediency as an element
of weight in peerage matters, which was inculcated upon the
House of Lords by Lord Hardwicke and Lord Mansfield in
1762 and 1771. I may even suggest that, seeing that the
noble and learned Lord admitted that there were varying
opinions as to the justice of the decision of 1875, or at least
on the merits of the case then before the Committee, the
maxim " In dubiis benigniora semper sequenda sunt " might
have been expected to rule the interpretation of the decision
in the favour of the man who was supposed to be injuriously
affected by it. It is obvious that this portion of Lord Sel
borne's argument was directed against the more favourable
view, in recognition of the possibiUty that the heir-general
might have at least an independent right to the original Earl
dom of Mar, which had been adopted by Lord KeUie and Lord
Eedesdale, and was embodied in the salvo subsequently added
to the Duke of Buccleuch's Besolution. The Eeport of the
Select Committee drawn up by Lord Cairns adopts the most
favourable view, at the risk of impugning the force of the
decision of 1875, so strongly deprecated by Lord Selborne;
aud in the same breath it repudiates Lord Selborne's doctrine
that the speeches in Committee for Pri'vUeges may be imported
into a resolution so as to give it an interpretation and influence
beyond its simple terminology, as he attempts in the passage
just quoted to do in the case of the Eesolution of 1875 in
favour of Lord Kellie. I have elsewhere shown that those
speeches in Committee are in no sense "judgments," as they
have been represented of late years.
Lord Selborne supported his second and final proposition,
viz. that acceptance of the Duke of Buccleuch's Besolution
would commit the House to an assumption of jurisdiction and
power with regard to Scottish peerages and the Union Eoll
which it had never hitherto exercised, with very cogent reason-
VOL. II. y

194 THE EAELDOM OF MAE. let. xn.
ing, both from principle and example. " It appears to me,"
he said, " to be a question of very grave and serious import
ance whether your Lordships have any such right to interfere
with the existing precedence upon the existing Eoll of Scottish
Peers, Mar or any other, as this Eesolution claims. ... No
precedent has been referred to for changing by a Besolution of
this House the precedence upon the Bolls of any existing
peerage which stands there." I " entertain a most serious
doubt whether it would not be against the spirit of Acts of
Parliament upon the subject for your Lordships to assume any
such jurisdiction."
Lord Selborne proceeded to vindicate the character and the
authority of the Decreet of Banking in 1606, and of the Union
Eoll of 1707. He remarked that in the Decreet of Bankbg
the power of appeal for higher place was not reserved to the
" House of Lords of Scotland " — the mistake that Lord St.
Leonards fell into- — " but to the Court of Session in Scotland,"
— pointing the contrast as showing that the final jurisdiction
rested there, and not with the supposed " House of Lords of
Scotiaud ;" remarking that " if there had been such a power"
reserved to the House of Lords, " it might perhaps have
descended to the House after the Union," but that it had not
done so — thus repudiating a fundamental point upon which
Lord St. Leonards ruled against the Montrose claim in 1853.
Lord Selborne proceeded to cite the confirmation by Act of
Parliament in 1633 of the Decreet of Beduction and declara
tion of precedence obtained by tbe Countess of Buchan before
the Court of Session under the reservation in the Decreet of
Banking in 1628, as " showing how high a respect the Parha-
ment of Scotland paid to the Boll of precedence as it was
settled by the Commissioners of James i.," i.e. by the Commis
sioners of Banking in 1606. "Nothing would, in my judg
ment," he proceeded, " be more unsafe for your Lordships than
to take upon yourselves the office of rectifying any errore, if
errors there be, in the actual ranking of those peers," — and he
proceeded to cite the question of precedency between Crawford
and Sutherland, standing as it does on precisely the same
footing as the precedency of Mar as sought to be corrected by
the Duke of Buccleuch's Eesolution :— "^The Duke of Suther
land is also Earl of Sutherland ; and if the old title of Mar is

SECT. II. THB EAELDOM OF MAE. 195
out of the question, I believe I am not 'wrong in saying that
that is generally understood to be the most ancient earldom in
Scotland, and it was established in the person of the Countess
of Sutherland, the great-grandmother of the present Duke, by
this House, upon the footing of that being so. My Lords, the
Earldom of Sutherland is not in its proper place according
to that decision upon the Eoll of the Earls of Scotland. It
stands below, I think, at present two, and formerly more than
two, other Earls of more recent creation. Why that is, whether
it is as the noble Earl who spoke last has suggested, because
the evidence brought before the Commissioners who inquired
into the Banking was imperfect, or for what other reason, I
cannot tell ; but it would be a very dangerous thing if your
Lordships were to take upon yourselves by a vote of this
House to rectify the precedence of the Earl of Sutherland and,
upon the petition of the noble Duke who bears that title, to
order that that Earldom should be called before the Earldom
of Crawford which precedes it. But your Lordships might
just as well do that as do what you are asked to do now,
because the result of the exercise of your judgment in the
matter is that it may be that the Earldom of Mar has been put
in too high a place upon the Boll. If so, so has the Earldom
of Erroll and the Earldom of Crawford — and I do not know
why your Lordships are to rectify that error, if error it be, in
the case of the peerage of Mar more than in the case of the
peerages of Erroll and Crawford." Besides, Lord Selborne
added, " further than that, if we are to go into the regions of
conjecture, I do not know that it is an impossible thing, even
upon the assumption which I am bound to make, that Queen
Mary did create a new Earl of Mar in 1565—1 say that I do
not know that it is an impossible thing that Queen Mary
might have given to the Earl then created a higher precedence
than that which he would have had according to the date of
his creation :" — very plausible, I would observe ; but a beating
of the air in the view of those who look on the matter with the
eyes of Lord HaUes and of the feudal and peerage law of Scot
land. It stands to reason that if there had been such a grant
of special precedency only forty-one years before 1606, it would
have been on record, and produced in evidence before the
Commissioners, which we know by the " De Jure Pr£elationis,"

196 THE EAELDOM OF MAE. let. xii.
was not the case. I might suggest that the same theoretic
conjecture would equally account for the precedency of Craw
ford over Sutherland. But, in Lord Selborne's words : — " The
truth is, that your Lordships are invited to enter upon a field
which does not belong to your jurisdiction at aU, and to take a
step which, so far as I can see, is in no way whatever involved
in or justified by the Besolution passed in February 1875."
Lord Selborne then vindicated the authority of the Union
Eoll — " which you are asked," he observed, " without any pre
cedent as far as I know, to alter." He vindicated it as having
" a very high authority indeed, inasmuch as it is styled in an
Act of Parliament passed in 1847" (of which I shall have
much to say hereafter), " an authentic Ust of the peerage of the
northern part of Great Britain, caUed Scotland, as it stood on
the first day of May 1707," etc., etc. — a proximate testimony
to its importance sufficient perhaps for Lord Selborne's argu
ment. " Now, my Lords," he proceeded, " this title of Mar is
one which has been enrolled and registered by the House ever
since the Act of Union. It is one which stood on the EoU at
that time, as it stands now, in the precedence given to it by the
Decreet of Banking, in which precedence the Earl of Mar sat
ill the last Parliament of Scotland, and indeed always sat from
1606 in every Parliament in Scotland; and your Lordships,
having determined that that earldom was merely created in
1565, are surely not now going to take away the precedence
which for more than two centuries the Earls of Mar enjoyed?"
I cannot but interpose the observation here, that nothing but
such a conjecture as that the noble and learned Lord indulged
in, viz. of a special grant of precedence by Queen Mary in
1565, could possibly meet the difficulty that the re-creation
alleged in 1565 had only taken place forty-one years previously
to the promulgation of the Decreet of Banking in 1606; and
the circumstances being within the memory of li'ving persons,
the Commissioners could not have given a precedence of more
than a hundred years without adequate cause. On the other
hand, if such special grant had been passed, it would have
been produced in 1606 along with the other writs specified in
the contemporary minute of the productions upon which the
Commissioners went ; but no such grant is there specified.
Lord Selborne then proceeded to inquire in what manner

SECT. 11. THE EAELDOM OF MAE. 197
the House of Lords had acted on former occasions in similar
matters — whether according to a fixed rule, or in " the exercise
of this sort of summary way of authority, with regard to the
Scottish Peerage and its elections ?" He found, he said, that
the House had acted on several occasions in a " manner very
instructive." The first instance he aUeged was when " in the
last century it desired to have a revised Eoll of the Peers of
Scotland, with the omission of attainted peerages and the addi
tion of any which had been inserted since the Union — I mean
claims to which had been established. What course did it
take ? It sent to the Court of Session in Scotland to return
a revised Eoll, which the Court of Session accordingly did."
This took place in 1739, and the illustration was pertinent to
Lord Selborne's argument. Lord Selborne then cited Lord
Eosebery's Eesolution of 1 822. " Some inconvenience had been
found to arise from persons tendering their votes at the election
of Scotch Peers whose right to vote was very doubtful and con
troverted ; and this House passed a Besolution which a good
many years afterwards " (in 1862) "was vescmded sub silentio
upon the motion of the noble Duke opposite " (the Duke of
Buccleuch). " That Besolution was to the effect, not that the
existing EoU was to be in any way interfered with, but that
upon the descent of a peerage, if it was .claimed by any coUateral
more remote than a brother, that claim was not to be admitted
at the elections until it had been estabUshed and approved by
this House. That Eesolution was undoubtedly adopted ; but it
has been rescinded at the motion of the noble Duke, I suppose
because there was a fear that it would interfere unduly with
the privUeges of Scotch Beers." I have already spoken suffi
ciently of this Besolution of 1822. Again, "in 1832, a Select
Committee of the House was appointed to inquire into the sub
ject, and that Select Committee recommended that the House
should assume a considerable authority ; that it should direct
the Lord Clerk Eegister to make out a new Boll, omitting those
peerages which had not been caUed for a certain time, or which,
if called, had been objected to, and to do certain things, into
the detaUs of which I need not enter." The Eeport of the
Select Committee is printed, I may interpose, in the Appendix
to the Eeport of the Select Committee on the Mar Earldom, pre
sently to be dealt with. " But the House," observed Lord Sel-

198 THE EAELDOM OF MAE. let. xii.
borne, " did not think it right to assume that po'^ver,"— L should
rather say, felt that they had no power to assume it; "and
what the House did was to let the matter sleep for some years ;
and then, in the year 1847, an Act of ParUament was passed"
upon which and its enactments Lord Selborne fixes, as showing
that when it has been thought necessary to interfere with the
manner of calling peers as prescribed by the Act of Union, it
has been thought proper to give that power by Act of Parlia
ment. The Act of 1847 may be, as I shall show, a very unfor
tunate act of legislation ; but Lord Selborne was quite right in
principle in attaching the weight to it that he did — not, I must
protest, on its own merits or legality, but as sho'wing the limi
tation of the action of the House by Parliamentary authority,
and as vindicating his position that the adoption of the Duke of
Buccleuch's Eesolution would be (as I ventured to submit in the
paper criticised by Lord Eedesdale) ultra vires of the House of
Lords. And this position, which cannot be shaken, extends in
its influence far beyond the special point to which Lord Selborne
directed it.
Lord Selborne proceeded to recite the provisions of the Act
of 1847, andof a subsequent Act of 1851, for the purpose of
showing that the House " would be going very clearly against
the mind of Parliament which passed these enactments, if with
out reference to precedent to justify it (and if there are such
precedents, it would be desirable to see them), you assume the
power which the noble Duke now asks you to assume. That
Act of Parliament, after reciting what I have read concerning
the LTnion Eoll caUed at elections, went on to enact, first, that ¦
no peerage should be called in right of which no vote had been
received since the beginning of the century ; aud, secondly,
'that if any vote or claim to vote in respect of any title
of peerage on the EoU called over at any such meeting shall
be disallowed by ' this ' House, upon any proceeding had
in trial of any contested election, the House of Lords may, if
tbey shall think fit, order that such title of peerage shaU not be
called until some right to it shall have been established. But
here," observed Lord Selborne, " without anything in the Act
of Parliament to warrant it, we are asked to order that the
title of Mar now standing in the Eoll shall no longer be called
as it stands there. The third enactment was that all pro-

SECT. II. THE EAELDOM OF MAE. 19.9
tests made at such elections should be transmitted to this
House, who might, if they thought fit, inquire into the questions
raised by such protest, ' and if they should see cause, order
the person whose vote or claim has been so protested against
to estabUsh the same,' under the same rules as apply to the
case of ordinary claims." A comment made for the sake of
brevity, which I must supplement by remarking that, whereas
" ordinary claims " must by English law be preferred to the
Sovereign first, who may refer them to the House of Lords, or
any other tribunal, for advice as to their merits, the provision
of the Act is that the claims protested against — and I shall have
occasion presently to point out the unprecedented and Ulegal
nature of the procedure there contemplated — shall be investi
gated and determined upon by the House of Lords without
reference from the Sovereign, under the theory of the absolute
jurisdiction of the House in dignities, which was as much in
favour in 1847 as it has been in 1876, and with as little founda
tion iu law at the one period as the other. " A protest," said
Lord Selborne, " has been made in this case " — of Mar ; but he
did not point the object of the observation; and I do not
understand it. " Then, my Lords," he proceeded, " there is this
power given by the Act of Parliament, — ' That whenever any
peer shall have established his right to any peerage, or his right
to vote in respect of any peerage, and the same shall have been
notified to the Lord Clerk Eegister, by order of the House of
Lords, the said Lord Clerk Eegister, or Clerks of Session, shall
not, during the life of such peer, allow any other person claim
ing to be entitled to the same peerage to take part in any such
election, nor shall it be lawful for the said Lord Clerk Eegister
or Clerks of Session to receive and count the vote of any such
other person, till otherwise directed by the House of Lords.'
My Lords, that certainly seems very carefully to guard the
rights of persons who, even after a claim has been allowed, and
even during the Ufetime of a person whose claim has been
allowed, make any persistent claim to the same peerage ; they
may not take part in the election until it is otherwise ordered
by the House of Lords." These observations, I should observe,
canuot apply to Lord Mar, the heir-general, whose right is abso
lutely negatived, according to Lord Selborne, by the decision of
1875. Nor do I see how, after a claim has been legally —

200 THE EAELDOM OF MAE. let. xii.
legally, I say, and formally — determined in favour of the claim
ant to a dignity, it can be in the power of the House of Lords
to permit a counter-claimant of that identical peerage to inter
fere in elections. The only remedy in such a case would be by
action of reduction in the Court of Session, on a principle and
usage of Scottish law into which I need not here enter.
Lord Selborne concluded by citing a further enactment in
1851, "which says that the Lord Clerk Eegister shaU transmit
to the Clerk of the Parliaments the titles of any peerages called
at such meeting in right of which no vote shaU have been re
ceived and counted for fifty years last passed, or for any
longer period, and on recei'ving an order from the House of
Lords to abstain from calUng such title at future meetings for
such elections, it shall not be lawful for the said Lord Clerk
Eegister or Clerks of Session to call such title at any subsequent
meeting, or to administer the oaths to any person claiming to
vote in right of such peerage, or to receive and count the vote
of any such person, or to permit any such person to take part
in the proceedings of any such election, untU otherwise directed
by order of the House of Lords. There again," observed Lord
Selborne, " the power is carefuUy guarded." I may observe that
under this Act it is in the power of the House of Lords to order
that the name of the Prince of Wales, as Duke of Bothesay, the
premier Peer of Scotland, shall not be caUed henceforward at
the elections at Holyrood, no Duke of Bothesay ha'ving voted
since 1788 ; while, after such Order has been issued, the right
of His Eoyal Highness to honour any peer or peers by his sup
port would be disaUowed tiU the Lord Clerk Eegister was
" otherwise directed by Order of the House of Lords." It is to
be presumed that no distinction wUl be made at any time hythe
House of Lords between the Duke of Bothesay and any other
peer similarly situated.
Nothing can be more admirably set forth than this induction
by Lord Selborne as to the Umits of legality and illegality— of
intra vires and extra vires, as attaching to the Eesolutions and
action of the House of Lords in regard to Scottish dignities—
the respect or disrespect due to the Act of 1847 having nothing
to do with the argument founded upon it.
Lord Selborne's closing words were: — "My Lords, the
most careful and anxious way in which these provisions have

SECT. II. THE EAELDOM OF MAE. 201
been made by Parliament, giving the House particular powers
'with regard to calling titles upon the roll at the elections of
Scotch Peers, and, as far as I can see, not giving any such
power as the noble Duke now proposes, leads me to the con
clusion that it is at least exceedingly doubtful whether what
the noble Duke asks your Lordships to do is within your
legitimate powers, and I put it to you whether anything could
more tend to discredit the decision which was come to two
years ago [i.e. the Besolution of the 25th February 1875, from
first to last the subject of the noble Lord's solicitude] than that
your Lordships should take a course not clearly justified by
precedent, and not clearly within your constitutional powers."
Lord Chancellor Cairns's speech was much shorter than
Lord Selborne's, but equally to the purpose, standing, as I
have already shown, on a common footing with Lord Selborne
in the position that the decision, or Eesolution, of the 25th
February 1875 must be supported as beyond question, but
declining to import into that Besolution, as Lord Selborne
had done, a declaration inimical to the heir-general as affirm
ing the original earldom to be extinct, when the Eesolution
itself, apart from such importation from the speeches in Com
mittee, simply affirmed the right of Lord KeUie as heir-male
to the earldom of 1565. I think Lord Cairns was right in this
dissent. It matters nothing that the Eesolution was arrived at
on the basis of the opinions expressed in the speeches, viz.,
that the original earldom was extinct. There was no petition
from any one claiming the original earldom — Lord Mar, in
possession of the original earldom by the law of Scotland,
made no claim to the second or modern dignity — the House
had not been empowered by the Sovereign to express any
opinion upon a right to the original earldom ; and, apart from
aU questions lying more remotely in the background, the
opinion tendered to the Sovereign in the Eesolution feU to be
construed with the most rigid severity in the interest of any
one who could be directly or indirectly affected by it in
juriously. It would have been impossible for any one to have spoken
more feeUngly than Lord Cairns did at the commencement of
his speech in reference to the heir-general : — " I do not re
member," he said, " any case which ever occasioned me more

202 THE EAELDOM OF MAR, let. xu.
anxiety, or in which one's sympathy was more enlisted on
behalf of the claimant " (alas ! alas ! for this unlucky and
misleading word) " who did not succeed before your Lord
ships' Committee. That gentleman had been supposed to be
the person entitled to the Peerage of Mar. He had been
accepted as such, I believe, by all who were related to the
family, and, among the rest, by that particular family who
afterwards became his antagonists for the title. They had
received him as the proper heir to the older title, and it was
in that position that, after holding it for some years, he found
himself opposed by those who had in the first instance admitted
his claim ; " observations which, however just as a ground of
sympathy for the heir-general, must not be unduly construed
(as Lord Cairns most certainly never intended them) so as to
create prejudice against the late Earl of Kellie or his son,
who, on the assumption that their claims were well-founded,
cannot be blamed for asserting them. " My Lords," continued
Lord Cairns, " notwithstanding that, after the most careful and
patient investigation, your Lordships' Committee for PrivUeges
were of opinion that Mr. Goodeve Erskine had not substan
tiated his claim to the Earldom of Mar; and, on the other
hand, that Lord KeUie had made out his claim to an Earldom
of Mar, which, according to the judgment of the Committee,
had its origin in the year 1565." How, I must again and
again ask — for the error seems to be inveterate — how can a
man be qualified as a " claimant " who claims nothing, who
merely opposes the claim of another, and whose " claim " to be
brought before the House of Lords in such a manner as to enable
the House to pronounce an opinion upon it in a report to the
Sovereign, must come before them by reference from the Sove
reign, the Sovereign himself being solely entitled to interfere by
a petition from the claimant ? The fundamental maxim that
no dignity can be destroyed or set aside indirectly by a side
wind, or without express specification of the dignity and its
tenant by a tribunal legally competent to do so, seems to have
been entirely lost sight of throughout the Mar discussion. If
the position of " Mr. Goodeve Erskine " had been as Lord Cairns
puts it, there would have been some ground for Lord Selborne's
importation of the speeches of the noble and learned Lords in
Committee into the Eesolution. But under that alternative.

SECT. II. THE EAELDOM OF MAE. 203
the salvo of the Duke of Buccleuch's Besolution, which Lord
Cairns considers rendered the Besolution less objectionable — I
will quote the words immediately — ought to have rendered it
more so, as opening the way to the recognition of two Earls of
Mar, and thus to the disprezzo of the decision, as maintained by
Lord Selborne. But to pass from this : —
Lord Cairns commenced his address thus : — " My Lords, I
cannot avoid thinking that the Besolution which the noble.
Duke has placed upon the paper brings your Lordships into a
position of considerable embarrassment. My Lords, the parti-
lar form of the Besolution has been somewhat altered, since, in
the first instance, notice was given of it; and whereas, as it
stood originally, it appeared to be a Eesolution directing the
Lord Clerk Eegister to caU the Earldom of Mar at a particular
place in the list, and at no other place, the Eesolution, as it
now stands, adds to that order a saving of the rights of all the
Peers of Scotland, to whatever may be their proper places,
"upon further and better authority showed for the same.' I
own that the qualification introduced by this saving appears to
me to make the Eesolution less objectionable than it was in its
original form ; but, at the same time, I cannot but think that,
even in its altered and ameliorated form, your Lordships, by
assenting to it, would run the risk of doing what I feel certain
your Lordships would only do by inadvertence, namely,
under the guise of passing a Eesolution, really make that
which would be a judicial, or, if not a judicial, a legislative
declaration." After the kindly reference to the heir-general, just cited —
an affirmation that the " conclusion arrived at by the Com
mittee for Privileges, and confirmed by your Lordships' House,
I apprehend, is conclusive for all purposes in this House " (all
reference to the authority of the Queen being set aside), and a
censure upon Lord Mansfield for having set that conclusion
" at absolute defiance," in disregard of the " custom " of the
House to disallow " arguments which would be in direct oppo
sition to a decision which the House has already come to " —
all which I have already cited and touched upon — Lord Cairns
declined " to follow in any way the views which the noble Earl
takes upon the subject of- this decision. But what I do sub
mit," he said, " to your Lordships with some confidence is, that

204 THE EARLDOM OF MAE. let. xu.
we ought to be very careful not to go beyond what the decision
actually was."
" What the decision," he proceeded, " actuaUy was, of course
appears upon the record of your Lordships' House, and upon
the Order which was made by your Lordships' House upon the
report of the Committee. This is the Order which was made
by your Lordships : — ' That at the future meetings of the Peers
of Scotland, assembled under any Eoyal Proclamation for the
election of a Peer or Peers to represent the Peerage of Scotland
in Parliament, the Lord Clerk Eegister, or the Clerks of Session
officiating thereat in his name, do caU the title of the Earl of
Mar according to its place in the BoU of Peers of Scotland
caUed at such elections, and do receive and count the vote of the
Earl of Mar claiming to vote in right of the said earldom, and
do permit him to take part in the proceediugs iu such elec
tions.' " It appears to me that there is some confusion here
between the decision of the Committee of Privileges confirmed
by the House, and the subsequent Order, but this does not affect
the argument.
The Lord ChanceUor proceeded to develop his opposition
to the Duke of Buccleuch's Besolution on two grounds, tending
to the same conclusion as that arrived at by Lord Selborne, 'viz.,
that the acceptance of the Eesolution would be to assume an
authority ultra vires of the House of Lords.
On the first of these two points he spoke as foUows :—
" Your Lordships wiU observe that this Order " — that of the
26th February 1875, which he had just read, " is entUely affirm
ative. There is nothing whatever in it 'which is negative;
and the affirmative Order of the House is that the Lord Clerk
Eegister caU the title of the Earl of Mar according to its place in
the Eoll of the Peers of Scotland. My Lords, whether that means
according to the place of a peerage created in 1565, or whether
it means to leave the Lord Clerk Eegister at liberty to judge for
himself what the precedence of the earldom may be, I do not
stop now to inquire. That is a matter which must be considered
in some other form, and cannot be decided upon a Eesolution
now passed by your Lordships' House," — a suggestion upon
which I may remark that I do not see how the right of the
Earldom of Mar, standing on the- Boll, to the precedence
assigned by the Decreet of Banking, can be controverted except

SECT. n. THE EAELDOM OF MAE. 205
in the course of law provided by the Decreet ; and that Lord
Selborne's remarks in vindication of that right, on the assump
tion that the Earldom on the Eoll is the Earldom of 1565, are
fuUy warranted. " But what I do submit to your Lordships,"
Lord Cairns continued, " is, that this having been the Order of
the House, the Order of the House having been in its form
merely affirmative, and having no negative words in it, it
would be entirely reopening the decision which was arrived at
if you were to pass this Besolution — it would be supplement
ing it with that which is not the natural coroUary of that
which has been ordered by the House, but is something en
tirely different, something very much further, and very much
higher in its operation, and therefore it would be doing what I
took the Uberty of saying at the outset your Lordships in this
view of the case were asked to do, viz., under the shape of a
Eesolution of the House to pronounce a judicial decision
affecting rights of peerage. That," said the Lord ChanceUor,
" is my first reason against accepting this Besolution."
Lord Cairns's second reason was that previously urged by
Lord Selborne, viz., that it would be a meddling with the
Union Boll, which could not be done without legislative
authority ah externo, i.e. from ParUament — the House having
no such legislative power constitutionally as inherent in itself, —
in short, to act as suggested by the Duke's Eesolution would
be extra vires of the House. " My Lords," proceeded Lord
Cairns, " my second reason is one which has been adverted to by
my noble and learned friend (Lord Selborne). It is quite clear
that if your Lordships not being now satisfied with the affirma
tive Order, which was an Order passed as such Orders are
passed, as a matter of course, upon every Eeport of the Com
mittee for Privileges, should pass a negative Order, that is to
say, an Order directing the Lord Clerk Eegister to call the
Earldom of Mar iu another place, the effect of that undoubtedly
wiU be that you wiU be doing what, so far as I know, has never,
with one exception, which I wUl explain, been done before —
you wUl be affecting the Union EoU of Scottish Peers.
" Now the Union Boll of Scottish Peers is a document
which has a certain authority. I do not mean to say that it
is an infallible document, or one which can in no way be
altered by authority," provided, it must be interposed, it be by

206 THE EAELDOM OF MAE. let. xii.
due authority — " but it is a document which, as my noble and
learned friend has correctly said, is declared to be of authority
by an Act of the Legislature, the Act of 1847," Lord Cairns,
like Lord Selborne, overlooking all the deeper grounds of its
authority. " The way in which the authority of the Union EoU
is there mentioned is very remarkable. It is called 'an
authentic Ust of the Peerage of the north part of Great Britain,
called Scotland, as it stood the 1st day of May 1707, was re
tumed to the House of Lords by the Lord Clerk Eegister for
Scotland, attested by him pursuant to an Order of the House
of Lords.' And then we are told by this Act of ParUament,
that to that list ' sundry Peerages of Scotland have since been
added, by Order of the House of Lords, at different times.'
There is nothing mentioned here of subtractions from that
list, or of alterations in the precedence given by that list. It
stands as an authentic list made in an authentic manner, and
returned in an authentic manner to this House ; and as far as we
know by this Act of 1847, nothiug has been donfe affecting it,
excepting iu the way of adding from time to time those peer
ages, rights to which have been determined by this House."
All this, I need not say, is excellent so far as it goes; but
then the authority of the Union Eoll rests, not on its accept
ance by the House, not on anything which took place in
1707 — the House was the passive instrument of registration
in tbe matter — ^but upon the Decreet of Banking of 1606, on
the corrections in the precedence effected by the Court of Session
from time to time, and on the insertion of newlj' created peer
ages on the Bolls of Parliament subsequently to 1606, under the
authority of the Lord Lyon King of Arms, the official custodier
of the Decreet of Banking, and of the EoU which that Decreet
originally established as the roll of precedence in Parliament.
Lord Cairns proceeded to draw and enforce the same infer
ence from the passing of the Act of 1847 which Lord Selborne
had done. I quote the Chancellor's words in extenso:—
" What," he asks, " did the Act of 1847 do ? It seems to me
to be a very strong expression of the view of the legislature, that
if anything was to be done to that Union Eoll, it was to be
done by legislative authority, and not merely by a vote of the
House, because it gave the House the power (and if the House
had the power already, why should that power have been given to

SECT. H. THE EAELDOM OF MAE. 207
it by Act of Parliament ?) to order a name not to be called upon
that Union Eoll. It did that in this way. ' If any vote or
claim to vote in respect of any title of Peerage on the Boll
called over at any such meeting shall be disallo'wed by ' this
House, that is to say, disaUowed after a certain protest had come
up before them, and after the persons who had claimed the right
to vote had been called before the House and the cases heard
— if, after that was done, any vote or claim to vote shall be dis
aUowed by the House of Lords " — and, I may interpose, there is
no security against the Duke of Bothesay himself, the Duke
of Hamilton, tbe Duke of Buccleuch, Lord Huntly, Lord
Mansfield, Lord Elphinstone, Lord Saltoun, for not one Scotch
Peer is safe, being so dealt with, so far as the terms of the Act
go — " the House may if they shall think fit order that such title
of Peerage shall not be called over at any future election." If
under those circumstances this House comes to a Eesolution of
that kind, then under the power of this Act of Parliament an
order may be transmitted to the Lord Clerk Eegister that he is
not to call the name, and then he is not to caU the name.
" Your Lordships," added Lord Cairns, " have acted upon the
authority created by this Statute ; for if I remember rightly,
although I have not the case here at this moment, a very few
years after the Statute was passed, in the case of the title of
ColviUe of Ochiltree, the House acting under the Statute, and
having returned to it a protest' which had been handed in at a
contested election, sat in judgment upon it,"- — these words of
the Lord Chancellor are by the way remarkable — "caUedthe
parties before the House, decided that the claimant who
claimed to vote as Lord Colville of Ochiltree had no right, and
passed a Besolution that the title of Colville of Ochiltree
should never be called again, and ordered the Lord Clerk
Eegister to act accordingly." I should like to know, by way
of parenthesis, what would the position of the rightful claim
ant to such a peerage be, should he appear subsequently to such
a Eesolution ; and whether the authority for such a summary
interposition to his ultimate disadvantage could be justified
even by the " omnipotence of Parliament " — no longer entitled
to that deification, but the creature of, and controUed by the
Treaty of Union.
" Now, my Lords," continued the Lord Chancellor, " if it was

208 THB EAELDOM OF MAE. let. xu.
necessary to have an Act of BarUament to order that this
should be done, and that it should be done only in those special
cases, it seems to me that your Lordships would be in very
great danger of assuming a legislative power, if you were to do
now by this Eesolution of the House what it was supposed in
the year 1847 required the authority of an Act of ParUament.
(Hear, hear)" I need hardly observe that the principle upon
which Lord Cairns's reasoning and that of Lord Selborne pro
ceeds throughout is, that the House has no legislative authority
in peerage matters, and can only act in matters affecting the
Union EoU and the rights of the Scottish peers and claimants
of Scottish peerages — under special authority conferred upon
them by the legislature. This has been the contention of the
vindicators of the Scottish law as affecting peerages for genera
tions past ; and I shaU revert to the point in due time.
Lord Chancellor Cairns concluded his address by suggest
ing that the Duke of Buccleuch should withdraw his Eesolu
tion, and that a Select Committee should be appointed "to
consider the matter of the petition of the Earl of Mar and
KeUie and the precedents applicable thereto, and to report
thereon to the House. It is clearly a subject of such gravity
and importance that I think it would be more satisfactorily
dealt with by your Lordships after you had the Eeport of a
Select Committee."
Lord Denman added a few words, expressing his opinion,
" that for the House to bind itself to any particular decision by
Eesolution would be an unfortunate step. I feel perfectly
sure," he added, "that the claimant" (meaning the Earl of
Mar, the heir-general) " wiU have justice done to him ; and if
ultimately his case should come on appeal" — ^the word is
somewhat difficult to explain — " there are a sufficient number
of your Lordships to take an interest in it larger than an
ordinary Committee for Privileges, to do justice between
the parties," — Lord Denman thus adding the weight of his
authority to the spirit of equity and moderation which sug
gested the salvo in the Duke of Buccleuch's Besolution, and
the admission of Lord Kellie and Lord Eedesdale that the
"decision" of 1875, " affirmative " for Lord Kellie, was not, I
may here say, in application of the Lord ChanceUor's words,
" negative " against the heir-general.

SECT. n. THE EAELDOM OF MAE. 209
The Duke of Buccleuch having assented to the plan pro
posed, and withdrawn his Eesolution, and the Lord Chancellor
having moved the appointment of a Select Committee, the
question was put, and agreed to : " That a Select Committee be
appointed to consider the matter of the Petition of the Earl of
Mar and KeUie, presented on the 5th of June 1877, and the
precedents applicable thereto, and to report thereon to the
House." I shall conclude this Letter here, and consider the Eeport
of the Select Committee in that which follows ; after which I
propose to invite the consideration of the reader to the position
in which the heir-general of Mar is placed by the Eeport of
the Select Committee as approved by the House. That too
wUl be the fitting place, for as yet it would be premature, to
estimate how the questions raised by Lord KeUie's petition and
otherwise have been answered by the noble and learned Lords
who took part in the debate reported in the present Letter, and
by the House which has affirmed and accepted the Eeport of
the Select Committee — the answers to these questions determin
ing the position and attitude henceforward assumed by the House
of Lords towards claimants to Scottish peerages (or indeed to
claimants of peerages generally), on the one hand, and towards
the Sovereign on the other ; a position and attitude which can
only be appreciated as legal or Ulegal by the appUcation of the
fundamental principles of law which have been established in
the earUer pages of these Letters. The question wiU neces
sarUy foUow, What is the remedy in the special case of Lord
Mar, and what the security for the rights of the Scottish peers
generally as standing on the laws of their country and the
protective sanctions of the Treaty of Union ? As already stated,
some of the positions afiirmed by the House are favourable,
others unfavourable ; some approach to what I have contended
for as the truth in these Letters, others rmfortunately the
reverse of this.

vol. II.

210 THE EAELDOM OF MAE. let. xm.

LETTEE XIIL
SELECT COMMITTEE OF 1877.
Our attention must now be directed to the Eeport issued
by the Select Committee appointed on the motion of the Lord
Chancellor Cairns at the close of the debate of the 9th July
1877. The Select Committee was constituted ou the 17th
July, and consisted of the following members : — The Lord
Chancellor, the Lord President (the Duke of Eichmond), the
Duke of Somerset, the Earl of Doncaster (the Duke of Buc
cleuch), the Earl of Mansfield, Earl GrauviUe, the Earl of
Eedesdale (Chairman of Committees of the House of Lords),
Lord Elphinstone, Lord ColvUle of Culross, Lord Meldrum
(the Marquess of Huntly), Lord Bosebery (Earl of Bosebery),
Lord Chelmsford (late Chancellor), Lord Penzance, Lord Sel
borne, Lord Blackburn, Lord Gordon of Drumearn. The Com
mittee met first on the 23d July, when the Lord Chancellor
was appointed Chairman, and Lord KelUe's petition, presented
to the House on the 5th of June last, having been read, and an
order made "after discussion . . . that precedents applicable
to the present case be laid before the Committee at its next
meeting," the Committee adjourned tUl Friday the 27th, on
which day a draft report, prepared by the Lord Chancellor, was
laid before the Committee, considered, and agreed to, with some
amendments ; and the Chancelloi- was ordered to make the said
Eeport to the House, which he did; aud the Eeport was
ordered to be printed, all on the same day, the 27th July 1877.
The importance of this Eeport as affecting the Earldom of Mar
and the Scottish Peerage generally must not be estimated by
the rapidity with which it was carried through the Committee.
It seems to have been a case of " Veni, vidi, vici " on the part
of the Lord Chancellor. In fact, it was simply the formal

LET. Xlll. THE EAELDOM OF MAE. 211
registration and enforcement by the House of the views and
advice expressed by Lord Selborne and Lord Cairns in the
debate of the 9th July previously.
The Eeport is printed under a somewhat misleading title —
"Eeport from the Select Committee of the House of Lords
on the Earldom of Mar, together with the Proceedings of the
Committee, and an Appendix." The Select Committee was
appointed, as appears by the heading of the Eeport on the suc
ceeding page, " to consider the matter of the Petition of the
Earl of Mar and Kellie, presented on the 5th of June 1877,
and the precedents applicable thereto, and to report to the
House." The impression thus created by the title is that the
inquiry had a broader scope, and that the Eeport entered more
than superficially into the subject.
The second article in the Appendix is the " Beturn of the
Long or Great EoU of the Peers of Scotland as it stands of this
date, August 1873," — a Eoll described as containing "all the
titles of peerage embraced in the Union Boll, No. I., and all
the titles of peerage added at various times by authority to
the said BoU ; " while " it exhibits further the peerages which
have been forfeited and those which have been restored, aud
it distinguishes those titles of peerage which are directed not
to be caUed at the elections of Eepresentative Peers of Scot
land, by the provisions of the Statute 10 and 11 Vict. c. 52,"
i.e. 1847, — the provisions in question being given as follows : —
"By the first section of the Statute 10 and 11 Vict. cap. 52,
it is enacted that at future elections of the Eepresentative
Peers of Scotland, ' the Lord Clerk Eegister, or the Clerks of
Session officiating thereat in his name, shall not call the titles
of any peerages now standing on the said Eoll in right of
which no vote shall have been received and counted since the
year 1800 ; nor shall it be lawful for the said Lord Clerk Eegis
ter or Clerks of Session to administer the oaths to any person
claiming to vote in right of any of the before-mentioned peer
ages, or to receive and count the vote of any such person, or to
permit any such person to take any part in the proceedings of
any such election until otherwise directed by Order of the House
of Lords.'" The Union Eoll itself, although referred to as "No. I."
in the " Beturn " just cited, is not given in the Appendix I am
now speaking of, nor the Decreet of Banking of 1606; in short.

212 THB EAELDOM OF MAE. let. xiii.
the evidence produced upon this point dates from 1873. The
third article in the Appendix is a very important one, viz. the
Eeport from the Select Committee of the House of Lords ap
pointed " to take into consideration the existing laws and regu
lations which relate to the elections of the Eepresentative Peers
of Scotland ; to consider what steps should be taken to prevent
persons from voting at such elections 'who are not entitled to
do so ; and to inquire into and report upon the proceedings
which took place at the election of Lord Gray, on the 1 7th day
of March last," 1847, " and to report to the House.'' This was
the Eeport upon which the Statute 10 and 11 Vict. cap. 52,
the Act namely of 1847, was framed, submitted to the two
Houses of Barliament, and passed.
This Eeport of 1847 is foUowed by the Minutes of E'vidence
received by the Committee. These Minutes record the ex
amination of John Eussell, Esq., one of the principal clerks of
Session, and of David Bobertson, Esq., a ParUamentary agent,
who, it appears from the evidence, supplied the Select Com
mittee with the draft of the bUl, embodying his 'views on the
subject, which ultimately became the Act of 1847. These
Minutes of Evidence of 1847 are followed by an Appendix m-
cluding various interesting papers, of which I may notice the
the foUowing: — 1. The "Eeport from the Select Committee on
the Laws relating to the election of the Eepresentative Peers
for Scotland, 1832,"^ — the Eeport, that is to say, suggestmgthe
series of impracticable recommendations commented upon by
the Lord Chancellor in his speech in 1877 ; and 4. A "Eeturn
of all those persons who have voted at any Election of a Ee
presentative Peer of Scotland since the year 1800, without
protest ; also, all those persons who have voted at any Election
of a Eepresentative Peer of Scotland since the year 1800, under
protest ; also, all the Peerages which are at present included in
the Long (or Union) Eoll ; and also, aU the Eules or Orders
received from time to time by the Lord Clerk Eegister or his
Deputies from the House of Lords, regarding the Election of the
Eepresentative Peers of Scotland." This final return is of the
meagrest description, omitting many, and entering several
twice over, the whole tossed together in marveUous confusion.
Lord Eosebery's Eesolution of the 13th May 1822 is given;
and it might have been expected that the Duke of Buccleuch's

let. xiii. THE EAELDOM OF MAE. 213
Eesolution canceUing it would have been included in the Ap
pendix of 1877; but this has not been done, and to the un
initiated it would appear as if the provisions of 1822 were
still in force.
Such are the contents of the document now before us,
entitled " Eeport from the Select Committee of the House of
Lords on the Earldom of Mar." I have yet to remark upon
one more most important and most unfortunate omission, viz.
that ofthe Statute 10 and 11 Vict. cap. 52, i.e. the Act of 1847,
upon which the recommendations of the Select Committee pro
ceed. The Eeport of the Select Committee of 1847 is given,
but not the Act itself that proceeded on that Eeport — the play
of Hamlet with the part of Hamlet omitted. I do not know
whether it is the usual course to omit such documents, standing
as they do on the Statute-book; but if so, the public are sufferers.
As the Eeport stands, there is no means of judging whether its
recommendations in regard to the Act 1847 are warranted by the
terms of the Act ; and it seems doubtful whether the members
of the Select Committee themselves had it actually before
them. The Act of 1851, also founded upon by the Lord
ChanceUor iu the debate of 9 th July, is also omitted ; but this
is of less consequence.
As the Eeport of the Select Committee of 1877, so far as it
affects the position of Lord Mar, the heir-general, proceeds
upon the recitation and application of the Act of 1847, as
shadowed forth in Lord Cairns's speech, I propose to insert
here the Act in its integrity, and then the Eeport of the Select
Committee, and conclude by pointing out the position in which
Lord Mar stands in consequence of that Eeport. I reserve a
special criticism of the Act for the succeeding Letter. I shall
subjoin the Act of 1851 in a note, in order that the reader may
have both before his eyes : —
" Anno Decimo et Undecimo Victoei^! EEGiNJi;. Cap. Iii.
" An Aet for the Correction of certain Abuses which have frequently
prevailed at the Elections of Eepresentative Peers for Scotland.
[25th /wree 1847.]
" Whereas by an Act passed by the Parliament of Scotland, in
tituled An Act settling the manner of electing the Sixteen Peers and
Forty-Jive Commoners, to represent Scotland in the Parliament of Great
Britain, certain provisions were made for electing the said sixteen

214 THE EAELDOM OF MAE. let.
Peers to represent the Peerage of Scotland : And whereas by an
passed by the Parliament of Great Britain, intituled An Act to i
6 Ann. c. 23. further Provision for electing and summoning Sixteen Peers of i
land to sit in the House of Peers in the Parliament of Great Brii
and for trying Peers for Offences committed in Scotland, and
farther regulating of Votes in Election of Members to serve in Pa;
ment, further provisions were made for the electing of the said six
Peers : And whereas an authentic list of the Peerage of the n
part of Great Britain called Scotland, as it stood the first day of j
One thousand seven hundred and seven, was retumed to the Houf
Lords by the Lord Clerk Eegister for Scotland, attested by him,
suant to an Order of the House of Lords, the twenty-second da
December One thousand seven hundred and seven, and entered into
Eoll of Peers by Order of the House of Lords on the twelfth da
February One thousand seven hundred and eight, to which list sui
Peerages of Scotland have since been added by Order of the Hi
of Lords at different times, -which list of the said Peerage is callei
the election of a Peer or Peers to represent the Peerage of Scoti
in the Parliament of the United Kingdom of Great Britain
Ireland : And whereas divers of the Peerages of Scotland have i
time to time become dormant or extinct, and frequent abuses 1
prevailed by persons assuming Peerages that have become dora
or extinct, and voting in respect thereof at such elections, to w
Peerages such persons had no right ; and it is expedient in orde
prevent such abuses to provide that no person shall be allowed to '
at such elections in right of any Peerage now .standing on the
Eoll whieh has been for some time dormant, until his claim the
shall have been admitted by the House of Lords, and to make fur
rules and regulations in regard to the proceedings at such electic
Be it therefore enacted by the Queen's most Excellent Majesty
and with the advice and consent of the Lords Spiritual and Temp(
and Commons, in this present Parliament assembled, and by
At future authority of the same, That at all future meetings of the Peen
for Scotch Scotland assembled under any royal proclamation for the election
titles noUo" ¦P®®'' *"" -P^ers to represent the Peerage of Scotland in Parliament,
be called by Lord Clerk Eegister, or the Clerks of Session officiating thereat in
Cleric name, shall not call the titles of any Peerages now standing on
ra'thft''o'b°" ^^^^ I^oll> ill '^igl't °f which no vote shall liave been received
J'l™™^- counted since the year One thousand and eiglit hundred, nor shal
otherwise be lawful for the said Lord Clerk Eegister or Clerks of Sessio:
theTHouae^ administer the oaths to any person claiming to vote in right of
of Lords. of the before -mentioned Peerages, or to receive and count the vot
any such person, or to permit any such person to take part in
proceedings of any such election, until otherwise directed by Orde:
the House of Lords.

let. xiii. THE EAELDOM OF MAE. 215
" II. And be it enacted, That if any vote or claim to vote in respect if eiaira to
. , T, n n 1 1 . vote be di.s-
of any title of Peerage on the Eoll called over at any such meeting aiio-wed by
shall be disallowed by the said House, upon any proceeding had in lS! tftie
trial of any contested election, the House of Lords may, if they shall °^f °o''^f^
think fit, order that such title of Peerage shall not be called over at caUed over
any future election ; and in the event of such Order being made by election, it
the said House, it shall not be lawful for the said Lord Clerk Eegister ^o'^'dered.
or Clerk of Session to call over the said title at any future election,
or to administer the oaths to any person claiming to vote in respect of
such title of Peerage, or to receive or count the vote of any such per
son, or permit such person to take part in the proceedings of any such
election, until such claimant or some other person shall have in due
course established his right to such Peerage.
" III. And be it enacted. That if at any such meeting, any person if at any
shall vote or claim to appear or to vote in respect of any title of peer- Peers a pro-
age on the Eoll called over at such meeting, and a protest against a|dnst ^y"
such vote or claim shall be made by any two or more Peers present ^,'^™ *" ,
whose votes shall be received and counted, the said Lord Clerk cierk Eegis-
Kegister or Clerks of Session shall forthwith transmit to the Clerk of mit a copy of
the Parliaments a certified copy of the whole proceedings at such tothTHSSe
meeting; and the House of Lords, whether there shall be any case of "f I'T'is.etc.
contested election or not, may, in such manner, and with such notice
to such parties, including the person so voting or claiming to appear
or to vote in respect of such title of Peerage and the persons protest
ing, as the said House shall think fit, inquire into the matter raised
hy such Protest, and, if they shall see cause, order the person whose
vote or claim has been so protested against, to establish the same
before the said House ; and if such party shall not appear, or shall
fail to establish his claim, the said House may, if they shall think fit,
order as is hereinbefore provided in respect to votes disallowed upon
any proceeding had in trial of any contested election.
" IV. And be it enacted. That whenever any Peer or Peeress shall Any Peer or
t l?66r6SS '
have established his or her right to any Peerage, or his right to vote having estab-
in respect of any Peerage, and the same shall have been notified to the J.'i^'l^ ^^^^
Lord Clerk Eegister bv Order of the House of Lords, the said Lord signified the
S3.iriP "to trip
Clerk Eegister or Clerks of Session shall not during the life of such Lord cierk
Peer or Peeress allow any other person claiming to be entitled to the vote of no ^
same Peerage to take part in any such election, nor shall it be lawful "ntTo^be™'
for the said Lord Clerk Eegister or Clerks of Session to receive and admitted.
count the vote of any such other person till otherwise directed by the .
House of Lords.
" V. Provided always, and be it enacted. That nothing in this Act Nothing
contained shall affect the right of any person claiming or who may affeXthe
hereafter claim any Peerage, or shall prevent the right of any person pf^s*ntor
voting or claiming to vote, or having voted or claimed to vote at any ''"*?''«

216

THE EARLDOM OF MAR.

LET.

election, being subject and liable to every objection to which the t
would have been subject and liable before the passing of this Act/

Certificatefrom two
Peera of
Scotland
held to be
formal notice
of the death
of any Repre
sentativePeer,

Time of pub
lication of
Proclama
tion for
Electionaltered from
25 days to
10 days.

Peers of
Scotland
may take the
oaths, etc.,
in the CoiU'ts
of Ireland,
and before
otheroflicers.

"KEPOET
By the Select Committee appointed to consider the matter of
Petition of the Earl of Mar and Kellie, presented on the
of June 1877, and the Precedents applicable thereto; aa
report to the House.
" Oedered to Eeport,
" That the Committee have met, and proceeded to consider
Petition of Walter Henry Earl of Mar and of Kellie, presented to
House on the Sth of June 1877. This Petition is printed in Appe:
A. to this Eeport.
' "Anno Decimo Quarto et Decimo Quinto 'Victoriae Reginse. Cap. Ixx:
" An Act to regulate certain Proceedings in relation to the Elections of Ee
sentative Peers for Scotland- [7 August 1851.]
" 'Whereas it is expedient to pro-vide a manner in which the death
Representative Peer for Scotland may he certified to Her Majesty, in o:
that Her Majesty may direct a Proclamation to he issued for the Electic
another Peer of Scotland in the room of such Peer deceased ; Be it ena
by the Queen's most Excellent Majesty by aud with the advice and con
of the Lords Spiritual and Temporal, and Commons, in this present Pa
ment assembled, and by the authority of the same, as foUows :
" I. That a certificate under the hands of any two Peers of Scotland,
shall be at the time of their signing such certificate either Representa
Peers, or shall have voted at former elections of a Representative Pee
Peers for Scotland without protest having been made to the receptio
their votes, according to the provisions of an Act passed in the Parhan
held iu the tenth and eleventh years of Her present Majesty, chapter fi
two, or having been so protested against shall have established their r
to vote in respect of their Peerages, shall be held to be formal and suffic
evidence of the death of such Peer for the purpose of issuing such
clamation as aforesaid.
" II. And whereas by an Act passed in the sixth year of Her late Maj
Queen Anne, chapter twenty-three, it is enacted that every proclama
issued for such elections shall be published as therein provided five-i
twenty days at the least before the time thereby appointed for the mee
of the Peers to proceed to such election : And whereas on account of
increased facilities ot communication which now exist such delay ia
longer necessary, and it is expedient that the same should be shorter
Be it enacted. That from and after the passing of this Act, instead of twe
five days, all such proclamations shall be published ten days at least be
the time thereiu appointed for the meeting of the Peers to proceed to i
elections, and that the time to be appointed in any such proclamation s
not be later than twenty-five days from the date of such proclamation.
" III. And be it enacted. That a Peer of Scotland may take the oaths
subscribe the declaration required hy law to entitle such Peer to voti
proxy or signed list at such elections in Her Majesty's High Cour
Chancery in Ireland, or Her Majesty's Courts of Queen's Bench, Com:
Pleas, or Exchequer iu Ireland, in the same manner and under the s

LET. XIII. THE EAELDOM OF MAE. 217
" The Committee find that by the Eesolution of the House of the
26th of February 1875, it was resolved and ordered as follows : —
'"That the Petitioner, Walter Henry Earl of Kellie, Viscount
Fenton, Lord Erskine, and Lord Dirleton in the Peerage of Scotland,
hath made out his claim to the honour and dignity of Earl of Mar in
the Peerage of Scotland, created in 1565.
" ' Ordered, That the said Eesolution and Judgment be laid before
Her Majesty by the Lords with White Staves.
" ' Ordered, That the Clerk of the Parliaments do transmit the
said Eesolution and Judgment to the Lord Clerk Eegister of Scot
land. " ' Ordered, That at the future meetings of the Peers of Scotland
assembled under any Eoyal Proclamation for the election of a Peer or
regulations as they may take and subscribe the same in the like Courts in
England, or may take the said oaths and subscribe the said declaration
before the lieutenant of any county in Great Britain or Ireland, or any
member of Her Majesty's most Honourable Privy Council in Great Britain
or Ireland, or any judge of a county court in England, or any British ambas
sador or minister accredited to any foreign court, or the secretary of any
such Embassy or Legation, or the Governor, Lieutenant-Governor, or Officer
administering the Government of any of Her Majesty's plantations, colonies, or
possessions abroad, or any of Her Majesty's Judges residing therein ; and every
such person before whom the said oaths shall be taken and the said declara
tion subscribed shall certify the same in a certificate attached to the declara
tion, which shall be produced, together with the proxy or signed list of the
Peer, at such election : Provided always, that nothing herein contained shall
be construed to prevent any Peer taking such oaths and subscribing such
declaration in any maimer at present competent by law.
" Vf. And whereas by the before-mentioned Aet passed in the Parliament „...
held in the tenth and eleventh years of Her present Majesty, chapter fifty- Peerages in
two, it is enacted, that at all future meetings of the Peers of Scotland for right of
such elections the Lord Clerk Eegister, or the Clerks of Session officiating To'te'lia"been
thereat in his name, shall not call the titles of any Peerages standing on the given for
Roll iu right of which no vote shall have been received and counted since Hlty ye^rs
the year One thousand eight hundred, with other provisions connected called at
therewith, and it is expedient that the principle on which the said enact- elections, if
ment is founded should be continued and extended : Be it enacted. That Lo^rJ^'Sl"^
after every meeting of the Peers of Scotiaud assembled under any Royal so direct.
Proclamation for the election of a Peer or Peers to represent the Peerage
ot Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session
officiating thereat in his name, shall transmit to the Clerk of the Parlia
ments the titles of any Peerages called at such meeting in the right of
whioh no vote shall have been received and counted for fifty years then
last past or for any longer period, and on receiving an order from the House
of Lords to abstain from calling such title at future meetings for such elec
tions it shall not be lawful for the said Lord Clerk Register or Clerks of
Session to call such title at any subsequent meeting, or to administer the
oaths to any person claiming to vote in right of such Peerage, or to receive
and count the vote of any such person, or to permit any such person to take
part in the proceedings of any such election, until otherwise so directed by
order ot the House ot Lords."

218 THE EAELDOM OF MAE. let. xm.
Peers to represent the Peerage of Scotland in Parliament, the Lord
Clerk Eegister, or the Clerks of Session ofiaciating thereat in his name,
do call the title of the Earl of Mar according to its place in the Roll
of Peers of Scotland called at such election, and do receive and count
the vote of the Earl of Mar claiming to vote in right of the said Earl
dom, and do permit him to take part in the proceedings in such
election.' " The House came to these Eesolutions upon the Eeport of the
Lords Committees for Privileges, by which Eeport it appeared that
John Francis Erskine Goodeve Erskine, styling himself Earl of Mar,
had appeared before the Committee, and had been heard on a petition
in opposition to the claim of the said Walter Henry Earl of Kellie to
the Earldom of Mar. The ground of such opposition was, that the
.said Mr. Goodeve Erskine denied that any Earldom of Mar was
created in 1565, and alleged that he was entitled, as heir of line of
Isabel Countess of Mar, to the Earldom of Mar, which he contended
was held by her in her own right in 1404.
" The present Petition of the Earl of Mar and Kellie states that
at a late meeting of the Peers of Scotland, on the 22d of December
1876, for the election of two Eepresentative Peers, Mr. Goodeve
Erskine presented himself to the meeting, and protested against the
Petitioner answering to the title of Earl of Mar, and tendered his vote
as the Earl of Mar called on the Eoll.
" The Petitioner prays that the House wUl order and direct that the
Lord Clerk Eegister of Scotland, or the Clerks of Session officiating at
the elections of Peers of Scotland shall at all future elections of Peers
of Scotland call the title of Earl of Mar on the EoU used at such elec
tions in the precedence declared and established under the Eesolution
and Judgment of the House, and that the title of Earl of Mar may not
hereafter be called at such elections in any other place.
" It appears from the evidence taken before the Select Committee
of this House on the Eepresentative Peerage of Scotland and Ireland
in the Session of 1874, that the Eoll of Scotch peerages called over at
.in election is made upon the basis of what is called the ' Union Roll.'
This Eoll is described in the Act 10 and 11 Vict., c. 52, hereinafter
referred to as an autheutic list of the Peerage of Scotland as it stood
in 1707, returned to the House of Lords in 1708, to which sundry
Peerages of Scotland have since been added by the House of Lords at
difi'erent times. The Eoll is looked upon as a Eoll, not of individuals,
but of peerages, and the Earldom of Mar is entered on this EoU as the
fifth Earldom of Scotland before earldoms -R-hich were created earlier
than 1565.
" It appears from a return made to the House, and ordered to be
printed on the 17th of April 1874, that where since the Union a title
has been established to a Scotch Peerage not on the Union Eoll, the

LET. XIII. THE EAELDOM OF MAE. 219
peerage to which the title has been so established has been placed upon
the Eoll in its proper precedence according to the Eesolution of the
House. And, on the other hand, where a title has been established to
a peerage already entered on the Eoll, a note has been made opposite
the peerage on the Eoll stating the title that has been thus established
to it. " It appears from the Eesolutions of the House of the 26th of Feb
ruary 1875, already mentioned, that the Earldom of Mar to which the
Petitioner is stated to have made out his claim is therein mentioned
to have been created in 1565, and the order to the Lord Clerk Eegister
is ' to call the title of the Earl of Mar according to its place in the
Eoll of Peers of Scotland called at an election.' It may be a question
whether, under this Eesolution, it was the duty of the Lord Clerk
Eegister to call the Earldom of Mar in the place in which the Earldom
of Mar actuaUy stands on the Union Eoll, or in what would be the
place of an Earldom of Mar created in 1565 ; but it appears that the
Lord Clerk Eegister called it at the late election in the place in which
it actually stands on the Union Eoll.
" Although the petition of the Earl of Mar and Kellie prays that
the title of Mar may be hereafter called in the precedence established
under the Eesolution of the House, that is as an earldom created in
1565, and not in any other place, yet it is obvious from the petition
that what the petitioner desires is that Mr. Goodeve Erskine should
not be allowed to answer to the title of Mar whenever it may be called,
or to tender his vote.
" It is clear that no mere alteration of the place on the Eoll where
the title of Mar is called would have this effect. It would be in the
power of Mr. Goodeve Erskine to answer to the name in whatever
order of precedence it was called, or to claim to vote as Earl of Mar,
irrespective of any calling of the name.
" The Committee have not been able to discover any precedents of
Orders made by the House for altering the order of precedence of the
Peers of Scotland on the Union Eoll. There are, as already stated,
precedents of the insertion of names omitted from the Eoll ; but there
are no precedents of orders made for changing the order of names
already on the Eoll. The Committee do not, however, desire to
express an opinion that in a proper case the House would, not have the
power to make an order to this eflect.
"The Committee have been furnished, on the other hand, with
precedents, which will be found in the Appendix B. to this Eeport, of
orders made by the House forbidding individuals to take upon them
selves the title or the dignity of particular Scotch peerages until their
claim shall have been allowed in due course of law, and declaring that
they should not be admitted to vote by virtue of a title thus improperly
claimed at the election of any Peers of Scotland.

220 THE EAELDOM OF MAE. let. xui.
"These precedents appear to be included between the years 1761
and 1776, and they are all anterior to the Eeport of the Committee of
the House made in 1847, as to the question of what steps should be
taken to prevent persons from voting at elections of Eepresentative
Peers of Scotland who are not entitled to do so.
"This Eeport of 1847 is printed as Appendix C. to this Report.
The Eeport was followed by the Statute 10 and 11 Vict., c. 52, and
this Statute appears to the Committee to have now provided a definite
and practical mode of preventing the vote of any person improperly
claiming a title of Peerage in Scotland being received or counted at
any election.
" Under the 3d Section of this Statute, if, at a meeting for the
election of a Eepresentative Peer, any person shall vote, or claim to
appear or to vote, in respect of any title of Peerage on the EoU called
over at such meeting, and a protest against the vote or claim be made
by two or more Peers present whose votes shaU be received and
counted, the Lord Clerk Eegister is to transmit to the Clerk of Par
liaments a certified copy of the whole proceedings, and the House of
Lords may order the person whose vote or claim has been so protested
against to establish the same before the House, and if he shall not
appear, or shall fail to establish his claim, the House may order such
Title of Peerage not to be called at any future election, and in such
case the Lord Clerk Eegister shall not caU the title at any future
election, or receive or count the vote of the person claiming the title,
or permit him to take part in the proceedings of any such election
until he shall have in due course established his right.
" Viewing the claim of Mr. Goodeve Erskine as a claim to an
Earldom of Mar older than and difi'erent from that which, according to
the Eesolution of the House, was created by Queen Mary in 1565, it
would, in the event of Mr. Goodeve Erskiue claiming at any future
election to vote in respect of such older and difi'erent Earldom of Mar,
appear to be competent for any two Peers to protest against his claim,
aud the proceedings would thereupon be transmitted to the House, and
it would appear to be in the power of the House to caU upon Mr.
Goodeve Erskine to establish his claim to such older and different
Earldom, and in the event of his not doing so, to direct that no such
older or difi'erent Earldom of Mar, and no Earldom of Mar other than
that created in 1565, should be called at any future election, and that
no person should have his vote received or counted in respect thereof
" Under these circumstances, the Committee are not disposed to
recommend that any order should be made on the Petition of the Earl
of Mar and KeUie. They think it better to leave the Statute to which
they have referred to be brought into operation, if necessary, at any
future election of Eepresentative Peers, in case any persons interested
sliould be ndvised to resort to its provisions.
"21th July 1877."

LET. XIII. THE EAELDOM OF MAE. 221
This Eeport was presented to the House of Lords, and
ordered to be printed (as previously stated) on the 27th July
1877 ; and the House thus placed the seal of its approbation
and acceptance of the views expressed by Lord Selborne, in
part, and by Lord Cairns in toto, upon the important question
discussed in the debate of the 9th July upon the Duke of Buc
cleuch's Eesolution. The especial feature of the Eeport is that,
while recognising the existence of the Earldom of Mar as a new
creation, and not a restoration, in the person of John Lord
Erskine in 1565, it admits that it maybe possible that the heir-
general may have a right to the ancient earldom, and points
out a method, as provided by the Act of 1847, somewhat cum
brous and roundabout, and otherwise, as I shall show, objec
tionable — by which he may procure a consideration of his pre
tensions before the House of Lords as a judicial tribunal, the
Committee, it is to be remarked, avoiding any suggestion that
Lord Mar should claim by petition to the Crown, as Lord Kellie
had done, and thus bring his case before the House by reference
from the Sovereign, and before the Sovereign as final judge. I
hold, of course, that Lord Mar is in possession, and has no occa
sion to claim; but a petition to the Crown is what the Committee
should have recommended, unless it was still determinedly bent
on representing Mr. Goodeve Erskine as a claimant. Apart
from this, the spirit of the Eeport was so far favourable to Lord
Mar, and gave expression to the feeling which had been growing
up, as I have shown, between April and July in 1877, and
which had been acknowledged by Lord Eedesdale and Lord
Kellie himself, and by the Duke of Buccleuch, in the salvo
appended to his original Eesolution, viz., that the decision by
the Eesolution of 1875 did not necessarily extinguish the origi
nal earldom, and that there thus might conceivably be two Earls
of Mar. I am sorry to say that I cannot myself admit the
possibility ; for, if the unconfirmed charter of Isabel Countess
of Mar, 12th August 1404, was vaUd, according to the con
tention of Lord Kellie, and of the Crown between 1457
and 1565, then the original earldom was lawfully resigned
by Alexander Stewart Earl of Mar to James i., lawfully
regranted to him, and became extinct on his death, and the
existing earldom was thus a new creation in 1565 ; while, if
the confirmed charter of 9th December 1404 was valid, accord-

222 THE EAELDOM OP MAE. let. xm.
ing to the contention of Lord Mar, and by the final judgment of
the Court of Session in 1626, then the resignation and regrant
to and by James i. were illegal, the succession of Sir Eobert
Erskine as Earl of Mar in 1438 was in due course of law, and
the reappearance ofthe earldom in 1565 was through restitu
tion ^«r modum justitiee, and there was no new creation in that
year. It is impossible that the two dignities can co-exist ; and
the judgment of the Court of Session in 1626 is conclusive ia
favour of the earlier one, through its affirmation that the charter
12th August 1404, the foundation-stone of Lord KeUie's claim,
was not valid.
FuUy admitting therefore that the House of Lords bad come
to entertain a more favourable view of Lord ]\Iar's position than
was the case at the time of the Order of the 26th February 1875,
and previously to the Duke of Buccleuch's Eesolution in 1877,
I am, on the other hand, constrained to state that his position
at this latest stage of events has been rendered more embarrass
ing than ever, and, as I shall show hereafter, through a mis
conception of the power conferred on the House by the Act
of 1847. His position at the present moment is as follows:—
A Peer of Scotland, by the law of Scotland — a man who has
never claimed, nor been under the necessity of claiming, a dig
nity of which he is in legal possession — and who does not there
fore stand before his Sovereign and his brother peers as a
claimant, an unsuccessful claimant, as he is represented by Lord
Kellie — a peer whose status has not been in the shghtest
degree legally affected or compromised by anything which has
taken place in the House of Lords, or out of it — the so-caUed
cancelling of his presentation at Court having nothing of a
judicial character, as has been contended in the discussion at
Holyrood— up to the present moment. Lord Mar, the Peer in
question, has now been placed in the position, through a well-
intentioned Eeport of a Select Committee, anxious to afford him
an opportunity of establishing his rights, which the House of
Lords still persist iu maintaining to be in suspense (if
they exist at all) till recognised by their own, not the Queen's,
authority-T-this peer of Scotland has been placed in the
position, I say, of being compelled to abstain from the
exercise of his right of voting as a Scottish peer by the cer
tainty that if he tenders his vote, two peers will be prepared to

LET. XIII. THB EAELDOM OP MAE. 223
protest against it, to the effect of dragging him before the bar
of the House of Lords, as a judicial tribunal, and the further
certainty that, till the House formally abjure its traditional
rules, it will decide against the law of Scotland and himself,
or, in the event of his non-appearance to the summons, prac
tically expunge the name and title of his ancient dignity from
the Union EoU, all in conformity with the provisions of the
Act of 1847, thus assumed — I shall show, erroneously as
sumed — to be applicable to his case. So long, in a word, as
the present intervention of the House of Lords remains unwith-
drawn, and the Act of 1847 continues to be understood in the
sense put upon it by the Select Committee, it is impossible to
doubt that the provisions of the Act will be brought to bear
against him; and Lord Mar is therefore precluded by this
attendant and imminent risk from exercising his right and
privilege of voting, as by law entitled. The case is, I should think,
unparalleled, not merely through its hardship, but the circum
stance that the House is disposed to be favourable, but bound
hand and foot (as they think) by their tradition, from the coils
of which it needs indeed a force stronger than that of Lao-
coon to break free. Meanwhile the Lords have replaced the
house of Mar — so far as a series of words and actions which
appear to me to have been ultra vires from first to last can
have such effect — in the position of the heirs of the Countess
Isabel between 1435 and 1565 ; the Lord Mar of 1875 standing
in precisely the same situation as the Eobert Earl of Mar whom
the Government would not recognise as such after he had been
lawfully served heir to Isabel in 1438, but whom Parliament in
1587 and the Court of Session in 1626 recognised as Earl. It
is to be hoped that the period of iniquity and oppression may not
be similarly prolonged with that which Queen Mary deplored
and put an end to in 1565. Is it beyond hope that Her Majesty
may intervene in the spirit of her ancestress Queen Mary, by re
storing her recognition of the status of the Earl of Mar implied
in his presentation at Court ? Meanwhile the continued, or
rather crystalUsed, refusal to receive Lord Mar's vote is a matter
touching the privileges and independence of the Scottish Peers,
and may injuriously affect the interests of Eepresentative Peers ;
because, independently of the deprivation to the Peers of the
presence and participation of Lord Mar at and in the elections

224 THE EAELDOM OF MAE. let. xui.
at Holyrood, it might well be that a grave question might.
arise if an equal number of votes appeared for two peers, while
there would have been a majority for one of them if Lord Mar
were not debarred from the legal exercise of his vote. Her
Majesty herself, who is presumed, as a feudal Sovereign, to
know every great vassal, her peer, might weU ask in the pre
sent instance, " Why is the man who by the justice of my ances
tress Queen Mary was restored to one of the most ancient dig
nities of my realm, and whom not only the Supreme CivU Court
of Scotland, to which my ancestor James V. committed the
guardianship of the legal rights of the Peers of Scotland, along
with those of all other subjects of my ancient kingdom, but
the standing laws of the realm, warrant to me as Earl of Mar,—
why is he excluded, apart too from my cognisance as the fount
and guardian of honours, from his seat among my loyal vassals,
his brother peers at Holyrood ? "
While such is Lord Mar's position — ^while the Eeport of the
Select Committee of 1877 proceeds upon a wish that fuU justice
should be done him — and whUe the Eesolution of the Duke of
Buccleuch bears the same testimony, to which Lord Eedesdale
and Lord KeUie (through his agents) have equaUy adhered,
it is impossible to doubt that all parties have acted in perfect
good faith. I ventured to surmise as much in the paper I
wrote, and which Lord Eedesdale criticised in the House of
Lords, at the moment when Lord KeUie's petition reached me
in AprU, and before the change had taken place in the general
opinion of himself and his friends, which found expression in
the salvo added to the Duke of Buccleuch's Eesolution. It was
an apprehension of the influence exerted by the Duke's inter
vention which induced me to write and cu'culate that paper.
" The name of the noble Duke," I said, " is such a tower of
strength; the confidence that he would recommend nothing
which he does not think just and right is so universally and
justly entertained, that I am under great apprehension lest a
grievous wrong should be unwittingly done, and the House
placed in a false and embarrassing position, through any action
taken on the prayer of Lord KeUie's petition, and more
especially on the final clause in the petition.'' Tn the same
spirit I added, after submitting that the House had no power
to interfere with the Union Eoll : " I wiU only pause to observe

let. xm. THE EAELDOM OF MAE. 225
upon the sad and unparalleled peculiarity of this claim," Lord
KeUie's, viz., " that, while cruelty and injustice have been, and
are being actively perpetrated, all parties have been, and are
acting in perfect good faith ; Lord Mar struggling against the
accumulated strength of his opponents, in defence of his
interest; Lord KeUie and the Duke of Buccleuch naturaUy
reposing faith in the opinion of the noble and learned Lords
who advised the Committee for Privileges ; and the noble and
learned Lords acting on the traditional views, and applying the
traditional rules and principles of their predecessors in Scottish
peerage cases since 1762 and 1797; men, aU of them, honour
able and true, and who would shrink from the idea of crushing
down an innocent man, yet who are betrayed and impelled
into doing so by the hereditary Nemesis of past generations."
A step in approximation towards better things — ^justifying these
anticipations — has been taken through the Eeport of the Select
Cormnittee which followed upon the debate on the Duke of
Buccleuch's Eesolution recognising the possibiUty of aright being
stiU in Lord Mar ; and it only needs one step further, a frank
acknowledgment that by Scottish law he is under no necessity
of claiming what he is actually in possession of, to enable him
to tender his vote without risk at Holyrood. Meanwhile, as I
have already shown, the Act of 1847 hangs over his head, and
renders such action pro tempore impossible.

VOL. II.

226 THE EAELDOM OF MAE. let. xiv.

LETTEE XIV.
THE ACT OF 1847 (10 and 11 Vict. c. 52).
The Statute of 1847 wUl be the exclusive subject of the
Letter I have now arrived at. It is already before the
reader ; but its import and importance as bearing primarily
on the Earldom of Mar, and more remotely on the privi
leges and independence of the Scottish Peerage, cannot he
appreciated -without ascertainment of its origin, nature,
and sanctions, and of the length and breadth, depth and
height of its authority aud vaUdity. An Act of Parliament has
its history and rationes, as weU as any other landmark in ex
istence ; and these are weU worthy of attention in regard to
the Statute of 1847. Section I.
Report on which the Act proceeded.
During many years, many generations previously to the
passing of this Act of 1847, many annoyances had arisen from
the assumption of dormant and extinct titles in the Peerage of
Scotland by pretenders having no right to such, and the tender
ing of votes by such persons in virtue of those titles at the elec
tions of Eepresentative Peers at Holyrood, votes which, although
protested against, stiU stood and weighed in the balance. The
proper Court for the correction of such abuses would have been
the Court of Session ; but no one seems to have thought of
proceeding beyond a simple protest ; although, as I have already
shown, such protest was to the Court of Session, as the supreme
tribunal by Scottish law. The House of Lords had no autho
rity to interfere. The most conspicuous of these cases of undue
assumption and voting were those of a certain Crawford, who
assumed the surname of Lindsay and the title of Earl of Craw-

SECT. I. THE EAELDOM OF MAE 227
ford subsequently to the death of George Earl of Crawford in
1 808 ; and of a certain Humphreys, who assumed the surname
of Alexander and the title of Earl of Stirling, both of these
claims being supported by forged evidence. At the election of
Lord Gray on the 17th March 1847 at Holyrood, a claimant
having voted as Lord Colville of OchUtree — this being the case
referred to by Lord Mansfield in his speech in 1877, the Earl
of Selkirk protested against the reception of his vote, '' on the
ground that as the right of the claimant of the title of Lord
ColvUle had not been admitted by the House of Lords, it was
contrary to Acts of Parliament to receive his vote." The Clerks
of Session replied that " they were not aware of the existence
of any Acts of Parliament of the kind or description referred to
by Lord Selkirk ; while the Eesolution of the House of Lords,
13th May 1822," i.e. Lord Eosebery's Eesolution, afterwards
rescinded at the instance of the present Duke of Buccleuch —
" could not be held to apply to the case before them." It was
this last incident which occasioned the inquiry and the legis
lation of 1847.
A Select Committee having been appointed, with Lord
Ardrossan (the Earl of Eglinton) in the chair, the Committee
took the evidence of the two gentlemen mentioned in my
brief notice of the Act in the preceding Letter, Mr. Eussell
(who had acted as Clerk of Session in the recent election at
Holyrood) and Mr. David Eobertson — a most estimable man, a
member of the firm of Spottiswoode and Eobertson, peerage
agents, and who had been engaged in that capacity in almost
eveiy great Scottish peerage claim since the memorable election
of 1790. It was he who reported the speech of Lord Eosslyn
(or Loughborough) on the Glencairn claim in 1797, and appeared
to give his report in evidence iu the Montrose claim in 1853,
when his appearance created much interest among all present.
But it is with no disrespect to his memory that I state that,
born and bred under the influence of the traditional practice
of the House of Lords, as initiated by Lords Hardwicke and
Lord Mansfield in 1762 and 1771, the key-note of which was
the assertion of the absolute authority of the House of Lords
in Scottish peerages, with but faint and hardly perceptible re
cognition of the jurisdiction of the Sovereign, so vigorously
vindicated in the WUtes case by Lord Chelmsford (who was

228 THE EAELDOM OF MAE. let. xiv.
also a member of the Select Committee of 1877), Mr. Eobert
son was a very unsafe guide for the Select Committee and the
House of Lords to foUow through the problem of 1847 ; while
it is a very singular and unfortunate fact that the Select Com
mittee abstained from seeking the advice on that occasion
either of the Lords of Session or of the law officers of the
Crown for Scotland, who might have advised them with more
authority, and from a broader basis of Scottish and constitu
tional law, — this being, in fact, the same complaint against
the Eeport of 1847, as that which Lord Mansfield pressed
home with so much effect in the Debate of 1877, and to which
neither Lord Selborne nor Lord ChanceUor Cairns ventured to
reply. Mr. Eussell's evidence is interesting, but occupied chiefly
with official and practical details, upon some of which I think
his views are questionable ; but Mr. Eobertson's dealt with the
suggestion of a practical remedy for recent abuses ; and my
impression from the evidence is, that he was invited to appear
for the express purpose of eUciting his -views, and obtaining his
assistance in the matter. I therefore insert his evidence in full
from the Minutes : —
"74. You are a Parliamentary agent? — Yes; and a conveyancer.
" 75. You have been long in practice 1 — I have been long in practice
in London. " 76. You are very much acquainted with the proceedings which
have taken place from time to time in the elections of Eepresentative
Peers for Scotland 1 — Generally I am well acquainted -with them.
" 77. You are quite aware that very great inconvenience has arisen
from persons voting who, it is conceived, have not a right to vote, and
who have been proved afterwards to have no right to vote ? — I have
seen several instances of it myself.
"78. Have you any suggestions to oflfer to the Committee which would
obviate those inconveniences, and put an end to the abuses which have
occurred at those elections, aud which are still continuing to occur 1 —
I have from time to time thought upon the subject. Those difficulties
have arisen a long while ago. I think the first case was in 1731, in
the case of my Lord Lyle ; and they have been going on ever smce.
There have been various Eesolutions of the House made upon the sub
ject, none of which seem to have abated the evU. I am inclmed to
think that an Act of Parliament might be the best way of getting rid
of those difliculties.
" 79. Supposing the Committee to be of opinion that it is expedient

SECT. I. THE EAELDOM OF MAE. 229
that an Act of Parliament should be passed, what provisions do you
think such an Act of Parliament ought to contain 1 — There are two
classes of those parties who have given annoyance at Peers' elections.
There is one class who have petitioned the Crown, and who have taken
proceedings before the Committee of Privileges. There is another
class, who have never petitioned the Crown ; and I presume that they
are just as difficult to deal with as the other. The former class, it
occurred to me, might be disposed of very easily, namely, by a Parlia
mentary enactment that all those parties who have claimed a peerage
from the Crown, whose claims have not been disposed of in their
favour, should have no right to vote, and should be prevented from
tendering their votes under a penalty. With regard to the other class,
it has occurred to me that they might also be dealt with something in
this way ; supposing it was enacted that objections might be taken to
the tendering of a vote at any election of Peers by such persons who
are weU known ; in fact, I believe it is universaUy known, who are Peers
of Scotland, and who are pretenders ; but upon any of those parties
who are of that last class coming forward, it appears to me that ob
jections might be taken to their tendering their votes. Such objections
might be very short, merely stating that they objected to the tendering
of those votes. If two Peers concurred in those, and gave in their
objections to the Lord Clerk Eegister or his deputies officiating at the
election, it appears to me that that would then be a ground for refusing
to receive the votes on the tendering of the votes at such election, if
an Act of Parliament declared that. 'What further occurred to me
upon the subject was, that it should not be an absolute bar to them,
but that it should force them to go to the House of Lords to have
their titles examined and adjudged, and that until they did so they
should be prohibited from tendering their votes under a penalty.
" 80. Supposing there were two pretenders present, and that those
pretenders having taken the oaths chose to object to any one of our
votes, that would equally prevent our voting 1 — So it would. You
might increase the number who should be required to concur in the
objection. " 81. But the number of pretenders might increase accordingly 1 —
The increase of pretenders might be more difficult.
" 82. When do you propose that those objections should be given
in 1 — Before they are sworn.
" 83. During the currency of the proceedings at the election ? —
At the time when the title that they assume is caUed ; that would be
the proper time to take the objection.
" 84. In that case the plan that you propose, and suppose it to be
effective for the purpose, would only cure half the evil ; because half
the scandal, and perhaps the worst half of the scandal, is the presence
of those parties interrupting the proceedings at the election?— I

230 THE EAELDOM OF MAE. let. xiv.
certainly have not turned my mind to that point. My object was to
prevent their voting at the election.
" 85. Would not what you propose have the efi'ect of enabling
any pretender to a peerage to challenge the vote of any Peer who
might vote at the election table at Holyrood House ; so that any Peer
might be called upon by one of those pretenders to prove his title
before he voted 1 — I have assumed that it would be necessary for two
Peers to object. It might, however, be necessary for a greater number
of Peers to object ; and in such a case it would be scarcely possible to
have so many pretenders as were necessary to object.
"86. Might not that plan lead, in a contested election, to parties
agreeing to protest against Peerages undoubtedly good in the persons
of the individuals present ? — Certainly, that is a possible case ; and in
the great election of 1790 a great many objections were so taken. A
great many objections were taken against Peers who were ultimately
found to have a good right.
"87. And who had never been questioned before? — And who
had never been questioned before.
"88. Would not the efi'ect of that be a very great injustice and
hardship to those upon whom it might act at that election ! —
Certainly. "89. Were not the Earl of Errol of the day and the Lord Napier ot
the day both brought to the bar of the House of Lords to prove thek
right to vote at the election of Peers for Scotland ? — They were; and
Mr. Spottiswoode, with whom I was, defended them both successfully.
"90. You state that one class of persons implicated in this question
are those who petition the Crown, and who vote whUe their petition
is pending, and before the claim is adjudged. Do you not know that
at present the universal practice in those cases is for the Clerks not to
receive such a vote where the claimant has petitioned the Crown ? — I
was not aware of that fact.
"91. In your opinion, would it be better to provide a remedy by
Act of Parliament, or, in your judgment, could it be effectually and
legally done by a Eesolution in the House of Lords 1 — I have seen so
much of Eesolutions being passed by the House of Lords which have
proved ineff'ectual, that my opinion, so far as I cau humbly form an
opinion, would be in favour of an Act of Parliament. I have made a
draft of a Bill connected with this subject, embodying the suggestions
which I have ventured to throw out, which, if it is the pleasure ofthe
Committee, I will deliver in."
Which draft was delivered in, and received by the Com
mittee accordingly.
This examination took place on the 7th May 1847, and the
Eeport of the Select Committee was presented to the House

sEcr. 1. THE EAELDOM OF MAE. 231
and ordered to be printed on the 4th June. The Eeport is
short but interesting, and I give it in full : —
" That the Committee have met and considered the subject-matter
referred to them, and have examined witnesses in relation thereto.
" The Committee find that there is no adequate authority vested
in any quarter for the rejection of votes, however dubious or invalid,
at the election of Eepresentative Peers for Scotland. This was mani
fested at the last election (as well as on many former occasions), on
Lord Gray's being returned a Eepresentative Peer in the room of the
late Lord EoUo, when a person assumed the title and exercised the
privUeges of Lord Colville of Ochiltree, a peerage generally supposed
to be extinct, and in respect of which other claimants at former elec
tions had been ordered by the House of Lords not to vote untU they
had proved their right thereto.
" The frequent practice of persons acting in the same way at these
elections is so notorious, that it is unnecessary to adduce further
proof of the fact ; while the journals of the House on reference to
them will exhibit the hardship, injustice, and expense to which many
candidates for the representation of the peerage have been exposed, in
consequence of votes of a similar character being thus received and
counted. " It is believed that the Peerage of Scotland is the only body in
vested with important privileges in this kingdom, without any pro
vision being made for testing the right of those who may claim . to
exercise them ; whereby not only the dignity of this branch of the
Peerage is compromised, but the return of Eepresentative Peers to the
House of Lords may be affected, and the public subjected to frauds by
the conduct of persons acting as Peers of Scotland, who are not justly
entitled to the honours they assume. This state of things has been
long felt to be a great evU and grievance, and various remedies have
been proposed ; some of a general and comprehensive nature, others in
reference to particular cases brought before the notice of the House ;
but aU these have either been abandoned before they were matured, or
have been found insufficient for correcting the abuses which have been
described. The House by their Eesolutions of 1822 attempted to
prevent the intrusion of aU persons claiming to vote by collateral
succession, without due authority ; but these Eesolutions have proved
inoperative, even in many cases of this description, and wholly so with
regard to those who claim by lineal descent. The abuses before re
ferred to, therefore, continuing at the election of the Scottish Eepre
sentative Peers, a Select Committee of the House was appointed in
1832, which came to several Eesolutions -«'ith a view of providing a
remedy for this evil, requiring compUance with certain forms on suc
cession to Peerages of Scotland before the right of voting was admitted ;

232 THE EAELDOM OF MAE. let. xiv.
but these were subsequently thought so liable to objection that they
were not pressed for adoption on the House.
" The Committee having thus inquired generally into the nature
of the evils complained of, and what had heretofore been done in re
lation to them, proceeded to consider whether the remedial measures
which they might propose should be carried into effect by Eesolutions
of the House or by legislative enactment. As the provisions by which
these elections are regulated and conducted have been settled either by
the Treaty of Union between England and Scotland, or by an Act of
the Parliament of Scotland at the period of the Union, which is made
part of that Treaty, or by an Act of the British Parliament passed
immediately after the Union, in accordance with the twenty-second
Article of the Treaty, which declares that the Eepresentative Peers of
Scotland shall be elected in such manner as is settled by the before-
mentioned Act of the Parliament of Scotland, ' untU the ParUament of
Great Britain shall make further provision therein,' the greatest doubts
must arise whether any restrictions upon the right to vote as at pre
sent exercised by persons claiming to be Peers of Scotland can be
legally enforced otherwise than by the authority of an Act of Parlia
ment. " The Committee then deliberated on the proper means to be
afforded by such an Act for securing the object in view. This, though
attended with considerable difficulty, has been executed with the
anxious desire, on the one hand, to correct the abuses which have so
long prevailed at the elections of the Peers of Scotland, and, on the
other, to effect this salutary purpose with as little individual pressure
as possible. The Committee have instructed the Chairman to lay on
the table of the House a BUl framed according to these principles,
which they venture to recommend to its favourable consideration.
" And the Committee have directed the Minutes of Evidence, to
gether with an Appendix thereto, to be laid before your Lordships."
The Bill in question was introduced in the House of Lords
on the 1 8th, and after passing through the House of Com
mons, etc., all in the usual form, became law as the 10 and 11
Victoria, cap. 52, on the 25th June 1847. It has been given
in extenso in the preceding Letter, and the reader will now be
enabled to consider the Act, and the evidence and Eeport it
proceeded upon in connection, and to appreciate the actual
tenor of the Act, and its applicability to the case of Lord Mar,
as affirmed by Lord Selborne and Lord Cairns in their speeches
in the recent debate, and recommended by the Select Com
mittee which sprang out of that debate in their Report
in 1877.

SECT. II. THE EAELDOM OF MAE. 233
Section IL
Act not applicable to Lord Mar.
What I have now to submit is that even were Lord Mar
content to accept the conditions presented to him by the
Eeport of the Select Committee, and descend from his high
place of legal possession as Earl of Mar to the bar of the House
of Lords, in the capacity virtually of a claimant, through the
mechanical operation of a protest by two Peers against his
vote, should he attempt to exerciue his privilege at Holyrood,
and a summons by the House of Lords to appear and establish
his right before them as judges, all as provided by the ma
chinery of the Act of 1847 — the step on his part and the
intervention of the House of Lords would be equally unavail
ing in law, for the simple reason that he does not fall within
the category of persons to whom the Act in question has
reference, and cannot therefore take advantage of it, if he
wished to do so ; while the same reason equally precludes the
machinery of the Act being put in force against him — I mean
in law, not in practice, a very different thing — should he ven
ture to vote, as at present he is precluded by the attendant
risk from doing.
I have already drawn attention to the words in the Eeport
of 27th July 1877, " the vote of any person improperly claiming
a title of Peerage in Scotland," and we have now before us the
circumstances under which and to meet which the Act was
passed, viz., the assumption of dignities by mere pretenders,
and the voting of such pretenders at elections at Holyrood.
And this is emphasised in the preamble to the Act of 1 847, which
is not cited by the Select Committee of 1877, and must have
escaped their notice, as is more probable from the non-insertion
ofthe Act in the Appendix.
The words are as follows : — " Whereas divers of the Peer
ages of Scotland have from time to time been dormant or ex
tinct, and frequent abuses have prevaUed by persons assuming
peerages that have become dormant or extinct, and voting in
respect thereof at such elections, to which peerages such persons
had no right " — the cases specially referred to being those of
the Crawford, Stirling, Colville of Ochiltree, and Annandale

234 THE EAELDOM OF MAE. let. xiv.
pretenders, — " and it is expedient, in order to prevent such
abuses, to provide that no person shall be allowed to vote at
such elections in right of any peerage now standing on the said
Eoll which has been for some time dormant, untU his claim thereto
shall have been admitted by the House of Lords ; and to make
further rules and regulations with regard to the proceedings at
such elections, ... Be it therefore enacted," etc. etc. I pause
for some observations here : —
It may be suggested (the reader can refer back to the Act, as
printed in Letter xm. supira pp. 2 1 3-2 1 6) that Section 3 of the Act
which the Eeport of the Select Committee specifies and founds
upon as providing for Lord Mar's case, is independent of the
preamble, — and' the absence of any allusion to the preamble in
that Eeport would appear to indicate that such was the view of
the Select Committee (supposing, that is to say, that the Act
actuaUy passed under their eyes) ; but the two alternatives thus
suggested are almost equally inimical to the appUcabiUty of the
Act, for the foUowing reasons . —
1. Assuming that Section 3 of the Act is governed by the
preamble, the conditions of its appUcabiUty are that the
peerage in right of which any one claims to vote shall
have been " dormant or extinct," or " for some time dor
mant " — while it assumes that those who have claimed
to vote in respect of such peerages have " had no right"
to those dignities. But by the law of Scotland govern
ing the succession to dignities, as elsewhere shown in
these Letters, the Earldom of Mar, whether the original
Earldom or the newly-discovered Earldom of 1565, has
never been for one instant " dormant or extinct," much
less " for some time dormant ; " inasmuch as the present
Earl succeeded at once jure sanguinis to his uncle, the
late Earl, as next of kin, at the moment of the death of
the latter ; and this by law (and as well in the original
as the supposed earldom of 1565, as pointed out by the
law officers of the Crown in 1874) — independently of the
fact that he was recognised and received everywhere as
Earl of Mar without a shadow of doubt tiU the moment
when Lord Kellie claimed an Earldom of Mar of later
creation — a claim recognised by the Eesolution of 1875,
but which, it is now admitted by the House, leaves

SECT. II. THE EAELDOM OF MAE. 235
the original dignity unaffected, and therefore ex, necessi
tate in the legal heir, although the House refuses to
recognise the Scottish law of succession, as being in con
tradiction to their private rule dating from the CassUlis
Eeport of 1762. Lord Mar, in a word, has been in con
tinuous and recognised possession as Earl of Mar — the
succession of the earldom restored in 1824 has never
been for a moment interrupted — the dignity has never
been dormant during the whole intervening period till
the present instant. The Act of 1847 is thus, as read
by the preamble, inapplicable ex terminis to the case of
Lord Mar. On the other hand,
2. If it be held that Section 3 and other Sections of the
Act are not governed by the preamble, then it is for the
Peers of Scotland to take notice that by the terms of
the Section in question, any two or more peers may
protest against the vote of any third peer who may
have inherited his dignity in direct succession from any
number of generations, and thus empower the House of
Lords — for there is absolutely no protection, or room for
discrimination apart from the preamble — to " inquire
into the matter raised by such protest, and if they shall
see due cause, order the person " — the peer in posses
sion being thus qualified, on the same footing with the
pretenders spoken of in the preamble — "whose vote
or claim has been so protested against " — the Duke of
Eothesay's, for example, " to establish the same before
the said House ; and if such party shall not appear, or
shaU fail to establish his claim, the said House may, if
they shaU think fit, order as is hereinbefore provided in
respect to votes disaUowed upon any proceeding had in
trial of any contested election," i.e. as in Section 2,
may " order that such title of peerage shaU not be called
over at any future election," etc., etc. There is more
than one Scottish peer respecting whose right to his
dignity grave doubts have been entertained by Scottish
lawyers : and it is perfectly conceivable that such a
course as that suggested by the Act might be adopted
either on such or sUghter grounds, if, that is to say, the
provision of Section 3 stands by itself, uncontroUed

236 THB EAELDOM OF MAE. let. xiv.
by the preamble of the Act as limiting the power of
protest (in the way suggested) to cases of such pre
tenders as are there specified. That this danger was
foreseen by the Chairman of the Select Committee
which furnished the Eeport upon which the Act of
1847 proceeded, has been shovni by the evidence of Mr.
David Eobertson already given. The introduction of
the words " or more " — so that the clause runs " two or
more peers present " — and the qualification " whose
votes shaU be received and counted " — as the necessary
quorum to establish the right of challenging a claim to
vote, as above contemplated, constitutes, I conceive, but
a weak safeguard, unless Section 3 be controUed by the
preamble, as I submit it is. It is impossible, I appre
hend, to imagine that the framers of the Act, or the
Parliament which passed it, could have intended to put
power like this into the hands of the House of Lords,
unchecked by words limiting its exercise to the case of
the pretenders against whom the Act was avowedly
levelled ; while, if they did so contemplate and act, such
enactment was ultra vires even of ParUament itteelf, as
I shall show hereafter.
I have only to add that if the Act of 1847 had ever been
deliberately read and considered by the Select Committee of 1877
— and my only cause for doubting it is its omission from the Ap
pendix to their Eeport — then (I speak with diffidence, but I can
not conceal my conviction that) the Select Committee would have
seen that Lord Mar's case does not faU within the compass of the
Act ex terminis, on the grounds above stated. The private rule
and presumption of the House of Lords in favour of heirs-male,
invariably enforced against the Scottish law of succession in
claims which come before the House by reference from the
Crown, could not be enforced by the Select Committee in
a case like that of Lord Mar, which has never come before
the House by reference from the Crown, and where the
right to vote, upon which the chaUenge turns, is a matter
especially dependent uj)on the Scottish law of succession in
question. By that law the Earldom of Mar, the only Earldom
of Mar on the Union Eoll, and which is descendible to heirs-
general and has legally devolved on the present tenant, has

SECT. IT. THE EAELDOM OF MAE. 237
never been " dormant or extinct," and a fortiori never " for
some time dormant " — nor has it been " improperly claimed " or
assumed by the heir-general — since the death of the late Earl,
to whom the present succeeded as next of kin in 1866.
I have a further and vital exception to take on constitu
tional grounds to the vaUdity and applicability of the Act of
1847 in any case whatever; but this I defer, confining my
view at present to the special case of Lord Mar.
MeanwhUe, it will now be evident that Lord Mar can
neither be benefited nor injured in a legal point of view by
the Statute of 1847. It simply does not apply to him ex ter
minis, as I think wiU not be disputed by any who may have
read this Letter. It will be Lord Mar's wisdom — confident in
the ultimate triumph of truth over prejudice — to abstain from
placing himself iu the position of having the ordeal enforced
upon him ; but if that were attempted, I have little doubt that
it would be found that the weapon which the House of Lords
have brought forth from their armoury will prove unsound and
unserviceable against him.

238 THE EAELDOM OF MAE. let. xv,

LETTEE XV.
EESULTS OP DEBATE AND EEPOET OF 1877.
We have hitherto considered the Debate of the 9th July,
and the Eeport of the Select Committee as accepted by the
House of Lords on the 27th July 1877, with reference chiefly
to the Earldom of Mar. But they have a much broader scope,
as determining the attitude in which the House of Lords stands,
according to its own definition, with regard to claims to Scottish
dignities as involved in the right to vote at Holyrood. It is
most important to take account of the attitude thus dehber
ately assumed on this, the first occasion when the House has
seriously reviewed its position, — with an earnest desire, I feel
certain, to claim no more than its rights ; but as yet, I think,
unaware of the limits within which those rights are consti
tutionally restricted. From a proximate point of view, it will
be found in the result that the propositions laid down by the
House in 1877 have an unexpected bearing on the vaUdity of
the Eesolution of 1875 in favour of Lord Kellie, and that in
fact they not only cut away the grounds of that Eesolution,
but clench my argument in support of Lord Mar's actual pos
session of the ancient and only Earldom of Mar.

Section I.
Questions of principle evolved.
As I have already observed, very searching questions of
general principle were suggested by the petition of Lord Kellie,
the Duke of Buccleuch's Eesolution, and Lord Eedesdale's
appeal to the House against my Memorandum published in the
Times, which impugned, as he considered it, the absolute juris-

sect. I. THE EAELDOM OP MAE. 239
diction of the House of Lords in dignities. The more promi
nent of these questions, I may now state, were these : —
1. Are the opinions of noble and learned, or noble Lords,
expressed in their speeches upon claims to peerages in
Committees for PrivUeges on reference from the Crown,
susceptible of being imported into the Eesolutions of
the Committee reported to the House, and by the House
to the Sovereign — so as to broaden the significance of
those Eesolutions. In a word, are those speeches "judg
ments " in such wise as the Eesolutions have been caUed
"judgments"?
2. Are the Eesolutions of Committees for PrivUeges, reported
to and adopted by the House, final and irreversible,
whether or not they be in conformity with law, or, in
Lord Eedesdale's words, right or wrong ? Is there no
appeal ? And are they to be interpreted benignly, with
the view of not inferring privation or injury beyond
their strict terms, or the reverse ?
3. A Eesolution having been reported and accepted by the
House, and ordered to be laid before the Sovereign, is
the House at liberty to act on it at once without wait
ing for the approval of the Sovereign, irrespectively of
that approval, and in exclusion of any right on his part
to reconsider the decision, whether by the aid of a refer
ence back to the House or seeking counsel elsewhere,
and this either as the result of his own judgment, or on
remonstrance either by the unsuccessful claimant to the
dignity, or of parties interested against the claim ?
4. Is the House of Lords a Court of Law, possessing ex
clusive jurisdiction in claims to dignities, or a mere
commission of inquiry, to which or to any other ad
visers, the consideration of claims to dignities may be
referred by the Sovereign, but with reservation of final
determination to the Sovereign's own award ?
5. Can a claim to a peerage come before the House of Lords
except by reference from the Sovereign; and is the
House entitled to pass sentence upon rights to peerage
apart from such reference ?
6. In a word, is the ultimate jurisdiction in peerages in the
Sovereign or the House of Lords ?

240 THE EAELDOM OF MAE. let. xv.
7. On the assumption of the House possessing the right of
jurisdiction as a court of law, has the House a legislative
power in connection with claims to peerages as involved
in the right of voting at elections of Eepresentative
Peers at Holyrood ? Power, in a word, such as would
enable the House to supersede the laws of Scotland by
private rules of their own, or to direct an alteration in
the precedence of peers on the Union Eoll, or otherwise
interfere in regard to the elections at Holyrood ?
It was not to be expected that Lord Selborne and Lord
Chancellor Cairns, who took the lead in addressing the House
on the legal and constitutional questions involved in a con
sideration of Lord KeUie's petition, would give categorical
answers on the points above enumerated. They confined them
selves naturally to the issue immediately before them, but in
so doing they laid down propositions which are uncompro
mising upon the leading points in question, and clearly
although indirectly indicate the responses to the others. The
noble and learned Lords were unanimous thi'oughout, except
in one point, viz. the question whether the opinions expressed
by noble or noble and learned Lords in the speeches addressed
to Committees for PrivUeges form a part of the Eesolution,
Lord Selborne inclining to consider that they do so, Lord
Cairns taking the opposite view ; but the Eeport of the Select
Committee, of which Lord Selborne was a member, practically
determined the point against the importation of the speeches
into the Eesolution.
The fundamental propositions laid down by the House of
Lords, and which we have now to consider, may be summarised
as follows : —
i. The House of Lords possesses absolute jurisdiction in
Scottish dignities, irrespectively of the Sovereign ; and
their decision expressed in the Eesolution of a Com
mittee for Privileges, approved by the House, is a
judgment final and irreversible, without appeal, and not
to be questioned, whether right or -wrong. But the
opiniops expressed in the speeches of noble and learned
Lords who address the Committee for Privileges do not
form part of the Eesolutions arrived at by Committees,
and those opinions cannot be imported into the Eeso-

sect. I. THE EAELDOM OF MAE. 241
lutions, even although they express the rationes upon
which the Eesolutions are grounded. It follows from
this position that the House of Lords were fuUy
justified in passing the Order of the 26th February
1875 before, and irrespectively of, the receipt of
Her Majesty's pleasure in regard to the Eesolution on
the subject of Lord Kellie's claim, approved by the
House at the same day, hour, and moment, when
they ordered the Eesolution in question to be laid
before the Sovereign — according to aU former under
standing, for her consideration, and approval or dis
approval.
ii. As legislation is the joint work of the Sovereign and the
two Houses of Parliament, neither possessing independ
ent legislative power, the House of Lords can only act,
in regard to the right to vote at an election of Scottish
Eepresentative Peers at Holyrood, under power con
ferred on it by the Legislature, and speciaUy by the
Acts of 1847 and 1 85 1. Any action in relation thereto
as to the Union Eoll, which is not warranted by the
special terms of the Acts in question, would be ultra
vires. It follows that the House possesses no legislative
power, cannot supersede the law and custom of Scotland
regarding the devolution of or succession to Scottish
dignities, and the right to vote dependent on that suc
cession, by private rules of its own device ; nor can it
reverse a final judgment of the Court of Session affecting
dignities. What it has affirmed to-day it may unsay
to-morrow, as Lord Chelmsford, for example, did when
he acquiesced as a member of the Select Committee in
a Eeport which practically nullified and disavowed his
own luminous exposition of the law on the question of
jurisdiction in his speech on the WUtes claim. On the
other hand, it is more difficult in the present day than
formerly to adopt a retrograde step in departure from
truth and right in the presence of the pubUc ; and I
cheerfully acknowledge that in some and very im
portant points the House has made an advance on the
path which, persevered in, will ultimately lead them
VOL. II. Q

242 THE EAELDOM OF MAE. let. xv.
back into the broad road of legaUty, which I hold that
they have wandered from since 1762.
The answers informally but substantiaUy given by the
House to the questions I have above indicated may be stated
as foUows, with the corollaries which detach themselves from
the solutions of the various problems, and the practical results
which these solutions and coroUaries indicate : —
1. In the first place, and this is a very favourable item,
opinions expressed by those who address a Committee for
PrivUeges do not form part of the Eesolution upon a claim to
peerage ; and, as a necessary corollary, cannot be termed
"judgments." The observation may be interposed that if the
speeches (for example) of Lord Hardwicke and Lord Mansfield
on the CassiUis claim were considered as "judgments," and
imported into the Eesolution, that of Lord Marchmont, which
vindicated the law of Scotland as against the novel principle
upon which his two coUeagues advised the Committee, was
equally a "judgment," and must be equaUy part of the Eesolu
tion, which the phraseology of the Eesolution itself distinctly
proves it was not — thus reducing the proposition to an absurdity.
And, tUl comparatively recently, the Eesolution was arrived at
by the votes of aU the members of the Committee, lay as well
as legal, expressing their independent opinions, presumed to be
formed upon the evidence ; and it is only, so far as I see, on
the fact that the majority in the Committee on the Cassillis
claim voted for the heir-male on reasons opposed to those
urged by Lord Hardwicke and Lord Mansfield, that the Eesolu
tion can be justified as in conformity with the law of Scotland.
The salvo in the Duke of Buccleuch's Eesolution would have
been inadmissible, had the speeches in the Mar claim — which
absolutely affirmed the extinction of the original Earldom of
Mar and made that extinction the groundwork of the theory of
a new creation in 1565, otherwise admittedly -mthout a vestige
of proof — been part of the so-called "judgment;" and Lord
Selborne's opposition to the Duke of Buccleuch's Eesolution
was grounded on that view. But Lord Cairns thought differ
ently; and the Eeport of the Select Committee confirmed
his view, and determined the present question in the sense
which the older and conservative school of lawyers have
always vindicated. It foUows from this tardy but satisfactory

sect. I. THE EAELDOM OF MAE. 243
acknowledgment that when Lord St. Leonards, in the Montrose
case in 1853, pressed the speech of Lord Loughborough on the
Glencairn claim in 1797 as a final judgment determining the
efficacy of the Act Bescissory of 1488 as annulUng the Glen
cairn Earldom, and thus decisive against my father's claim to
the Dukedom of 1488, grounded upon the non-efficacy of that
Act as affirmed by the Court of Session in the final judgment
upon the Glencairn and Eglinton precedency in 1648, Lord St.
Leonards had no authority for importing Lord Loughborough's
speech into the Eesolution of 1797, or representing it as a
judgment and binding on the House in 1853, any more than
he had authority for supporting Lord Loughborough's right to
overrule the final judgment of the Court of Session in 1648,
and decide in contradiction thereto.
2. On the other hand, the decision upon a peerage claim, as
expressed in the Eesolution reported to and affirmed by the
House of Lords (the ultimate decision of the Sovereign being
left unnoticed), is now affirmed to be a " judgment," final and
irreversible, right or wrong ; and its sufficiency and force are
not to be questioned, and must be the basis of all discussion.
Lord Eedesdale's proposition was fully accepted and enforced
by Lord Selborne and Lord Chelmsford, and taken for granted
by the Select Committee. It foUows that even although such
decision or judgment may be shown to be against law and
precedent, its finality is not impeachable, and there is no
appeal from its binding force. This was, in fact, what Lord
St. Leonards affirmed of the Glencairn decision of 1797. On
the other hand, as in the Mar case, these opinions must not be
interpreted rigidly so as to infer injury beyond their strict limits.
Against the above I would suggest, that although decisions
must be considered final when issued by a Court of last resort,
and when the decisions are in accordance with estabUshed
law and precedent, or upon points undetermined by law and
dubious up to the moment of decision, yet if decisions are
flagrantly against law and precedent, such decisions cannot be
final, for a wrong is thereby inflicted, and where there is a
wrong there must be a remedy ; and the usual course provided
is through appeal to a higher court, on writ of error. But
there can be no writ of error till the House of Lords has been
recognised by law as a court of justice in peerage claims.

244 THE EAELDOM OF MAE. let. xv.
which is not the case, and cannot be the case on special
grounds in regard to Scottish dignities through the provisions
of the Treaty of Union ; and the -views now affirmed by the
House exclude any appeal to the Sovereign, pronouncing the
decisions by the House final. Scottish peerage claims are
thus preferred before a court of first and last instance, without
appeal from their arbitrary decision, a thing abhorrent to British
justice — if the views of the House of Lords be accepted as
sound on this point.
3. The Eesolution having been reported to the House and
affirmed by the House, the House is at Uberty to act upon it
" at once " on behalf of the claimant in whose favour it was
passed, and even although another party, to whom the House
attached the character of a coimter-claimant, and who has
opposed the claim as an aggression upon his o-wn pre-existing
and actual right, be affected by the decision. By " at once " is
understood the actual moment when the Eesolution is approved
by the House and ordered to be laid before the Sovereign — the
Order of the 26th February 1875, the legaUty of which was
sustained by the House, having been issued in the same breath
with another Order that the Eesolution should b6 reported to
the Sovereign, and with the confirmation of the Eesolution by
the House — even before the Sovereign received the Eeport of
the House. The Eeport to the Queen was thus reduced to a
mere formality : the House inform her of what they have
decided — there is no necessity to await her intervention by
approval or disapproval; all power of hesitation, inquiry, or
overrulement on her part is precluded ; all right of petition to
the Sovereign by the party unsuccessful in opposition is
excluded. I had ventured to suggest that the Order to the
Lord Clerk Eegister, issued in manifest contempt and overrule
ment of the Eoyal jurisdiction, and in practical extinguishment
of any right or power of remonstrance on the part of Lord Mar
or others, was extra vires of the House — and I think so stiU,
although the House has repudiated the suggestion.
4. The House of Lords being thus possessed of jurisdiction
in dignities, pronouncing judgments in the shape of Eesolutions,
which are final and irreversible whether right or wrong, is prac
ticaUy at least a court of law, and in no sense a court of mere
inquiry, advising a judicial power in the background, vested

sect. I. THE EAELDOM OF MAE. 245
in the Sovereign ; whUe, if thus invested with power, and its
decisions without appeal, claims to dignities must necessarUy
be considered as addressed to and determined by itself, although
through the formal medium of the Sovereign; and the Sovereign
has no power either to refer a Eesolution back to the House
for reconsideration, or to refer a petition to any other consul
tative body, either before or after consulting the House, except
the House of Lords. It amounts to this, that, whereas the
Sovereign, the fountain of justice as weU as of honour, had in
England reserved the jurisdiction in dignities as a privUeged
subject to his own particular arbitrament, when delegating the
jurisdiction in lesser civil rights to inferior courts, this distinc
tion has now ceased, and the House of Lords has invested itself
(for it has no statutory authority) with this jurisdiction. But,
however this may be acquiesced in by the Peers of England, it
cannot aff'ect those of Scotland, who have never been under
any obligation to resort to the Sovereign for awards on their
claims to dignities, but have done so voluntarily and under an
implied compact, the terms of which as well as the jurisdiction
cannot be taken over by the House of Lords, so far as they are
concerned, vrithout their consent.
5. If the Eeport to the Crown, after a decision is given, be
a mere formality, and the House is entitled to act before the
judgment of the Sovereign is given, the words of reference " His
Majesty being moved on this Petition is graciously pleased to
refer the same to the Eight Honourable the House of Peers, to
examine the allegations thereof as to what relates to the Peti
tioner's title therein mentioned, and to inform His Majesty
how the same shall appear to their Lordships," are nothing but
a mockery. 6. The ultimate jurisdiction is thus in the House of Lords,
not the Sovereign ; and Lord Chelmsford was in error in affirm
ing the contrary in the Wiltes case.
7. The last preceding articles have all been eminently un
favourable, to the effect of stripping the Crown of its privUege
of jurisdiction, so far as such mere assumption of judicial power
by the House of Lords can have that effect ; but, on the other
hand, as a per contra, it is now admitted and enforced that the
House has no legislative power in connection with the deter
mination of claims to dignities, or with the right of voting at

246 THE EAELDOM OF MAE. let. xv.
the elections of Scottish Eepresentative Peers at Holyrood, or
with the precedence of peers upon the Union Eoll, which Eoll
they have no power to alter, their only power of interference
being what is given them by Act of ParUament. The Eeport of
the Select Committee expresses itself somewhat dubiously on
the latter point.^ But they have at least repudiated any power
of interference with the Union EoU, both in general terms and
in the particular case of Mar. In this absence of legislative
authority, the House can only act in the case specified under
power specially and guardedly committed to them by the
authority of Parliament, the Acts of 1847 and 1851 being, in
fact, the only statutory authority for their interference — the
Act of Parliament of 1707 giving them, as I have shown, none
whatever. The corollaries that flow from this fact, that the
House possesses no legislative power, are two ; which wiU be
found to be very fruitful in results : —
i. AU General Eesolutions passed by the House of Lords
from time to time affecting dignities in a legislative
manner — of which Lord Eosebery's Eesolution of 1822
repeatedly aUuded to in the preceding pages, is a notable
example — have been ultra vires of the House, and thus
Ulegal ; and, if any stUl subsist, they are nuU and void,
and should be rescinded without loss of time, as Lord
Eosebery's Eesolution was rescinded at the instance of
the Duke of Buccleuch in 1862. The series of these
General Eesolutions dates from before the Union; and
it has always been held that they were passed by a
mere usurpation of legislative power ; but the usurpa
tion is now practicaUy acknowledged and repudiated.
It follows that all appUcations of such General Eesolu
tions in special cases have been equaUy ultra vires and
iUegal. When such General Eesolutions have been in
actual supersession of existing law, they are of course
condemned a fortiori.
1 In the words, " The Committee have not been able to discover any pre
cedents of Orders made by the House for altering the order of precedency
of the Peers of Scotland on the Union Roll. There are, as already stated,
precedents of the insertion of names omitted from the Roll, but there are no
precedents of Orders made for changing the order of names already on the
Roll. The Committee do not hereon desire to express an opinion that ma
proper case the House would not have the power to make an Order to this
efifect."

SECT. I. THB EAELDOM OF MAK. 247
ii. General Eules, in like manner, laid down and enforced
by the House of Lords on their sole responsibUity for
their guidance in the determination of peerage claims,
have no legislative sanction, and a fortiori are ultra
vires, iUegal, null and void, with all that has followed
or may foUow upon them, when they are in direct
opposition to the law of the land. Of this nature are —
a. The private rule of tbe House by which the pre
sumption is affirmed to be in favour of the heir-
male as against the heir-general in the case of
Scottish Peerages, where the charter or patent of
creation is lost, and no collateral evidence exists
as to the destination, an exception being aUowed
upon proof to that effect in favour of the heir-
general, the onus probandi resting on the latter, —
this being in absolute contradiction to the Scottish
law and presumption on the subject. The esta
blishment and enforcement of this rule has been
ultra vires from the first ; and when it has been
enforced to the injury of the heir-general and the
undue recognition of the heir-male, as in the case
of Lord KeUie with respect to the aUeged earldom
of 1565, it is difficult to see how the decision of
1875 can be vindicated and supported even by
the House itself, after its acknowledgment that it
does not possess the legislative power which could
alone enable it to originate and enforce the rule of
succession in question. The affirmation of such a
claim as final and irrevocable, right or wrong, is
a pure assertion of the autocratic power of a
leviathan. Fortunately, as already observed, most
of the decisions in which this private rule has
been resorted to have been in favour of the right
parties, in consequence of their being able to
prove an exception to the rule by Scottish law.
It is well to observe that whenever Lord Hard
wicke and Lord Mansfield, and others following
their example, have introduced words into their
Eesolutions in order to mark and enforce the
rule in question, or any other rule of a similar

248 THE EAELDOM OF MAE. let. xv.
character, such words are mere interpolations
upon the ancient formula by which the House of
Lords signify in general terms their opinion on
the merits of a claim referred to them, and con
sequently form no part of the formula, nor,
properly speaking, of the Eesolution, and the
House of Lords is thus freed so far from the
responsibihty.
h. Of the same nature as the preceding rule, the assump
tion of the House of Lords that they have power
to review the final judgments of the Court of
Session, and determine differently — those judg
ments being final and binding upon aU subsequent
tribunals — can only be vindicated on the ground
of a legislative authority in the House, enabling
it so to act, so to overrule, and so determine,
through self-creation as a court of review, setting
aside the provisions of the Treaty of Union. The
disavowal of legislative power cuts the ground
from under the feet of the assumption in question :
and the overrulement of the Mar v. Elphinstone
Decreet of 1626 in the recent Mar case, that of
the Glencairn v. EgUnton Decreet of 1648 in the
Montrose case in 1853, and that of the OUphant
V. Oliphant Decreet of 1633 from 1762 to the
present time, are all thus stamped by the House
with iUegaUty ; as has been over and over again
insisted upon by authorities outside the House, as
I have shown at large in my report on the Mon
trose claim.
c. Lastly, and omitting some other simUar rules, the
private rule, initiated by Lord Camden, and in
troduced in the Eesolutions of the House upon
the Sutherland case in 1771, although for the
information of the House only, not the Sovereign,
to the effect that no charter of a comitatus which
does not specially convey the dignity shaU be
considered otherwise than a mere grant of lands,
was an act of quasi-legislation, in subversion alike
of law and custom in feudal times in Scotland, and

SECT. I. THE EAELDOM OF MAE. 249
cannot stand for a moment, now that the House
has abjured aU legislative power of intervention.
As matter of fact, charters of a comitatus of the
description specified conveyed the dignity although
not specified. The refusal of the Committee for
Privileges in 1875, in obedience to Lord Camden's
rule, to recognise the charter of the comitatus of
Mar of 1565 as conveying the dignity of Mar along
with the fief under the limitation " hseredibus," in
cluding heirs-general, was thus as much ultra
vires of the House as the recognition of the sup
posed Earldom of Mar in Lord KelUe, in obedi
ence to Lord Mansfield's rule in exclusive favour
of heirs-male.
Every point in which the traditional law and practice
of the House of Lords overrules Scottish law is, in a
word, an assumption of legislative power on the part of
the House, which is now condemned by the House itself
as an usurpation. Where no legislative power exists, it
is incompetent for either of the two Houses of Parlia
ment to lay down rules affecting rights of succession or
any other ascertained rights, at variance with the law
and custom of the land — as in the case which has been
especially before us in these Letters.
The result of the preceding review is that much that was
previously nebulous and fluctuating in the traditional doctrine
of the House of Lords has been authoritatively fixed, in some
points favourably, in others unfavourably, to the views of those
who hold by the law of Scotland as the ultimate criterion, and
who appeal to it, as I have done in the Protests which form the
subject of Lord KelUe's criticisms, to justify their refusal to
acquiesce in decisions which they consider to be untenable
when tested by that criterion.
The House has thus taken a new departure in its accept
ance of the dicta of Lord Selborne and Lord Cairns, and of the
Eeport of the Select Committee, grounded on those dicta and
drawn up by Lord Cairns ; and its views of the past must
necessarily and in consistency be modified to the extent to
which its former conceptions have now been corrected ; while

250 THE EAELDOM OF MAE. let. xv,
it is bound from this time forward to apply those corrections to
its practice in cases that may come before it. For remedy
where injury has been done in times past, resort (the House
being functus after report to the Sovereign) must be had to a
competent tribunaL At the same time, it is to be remembered
that the opinions delivered by Lords Selborne and Cairns, and
accepted by the Select Committee and the House, and upon
which a line of action has been suggested for Lord Mar to
follow, have no statutory or controUing power beyond that of
moral obligation, — what the House has affirmed to-day it may
unsay to-morrow, as shown not many years ago in the Wiltes
as compared with the Devon claim. This is a contingency to
which it would be folly to shut our eyes ; but we may reason
ably hope rather than fear. It must be admitted that in some
and very important points the House has made an advance on
the path which, persevered in, wiU ultimately lead it back into
the broad road of legaUty, which it has wandered from since
1762. Were prejudice dispeUed — or caU it preoccupation—
everything might be expected from its native candour, honesty,
and wisdom.
The results thus far which affect Lord Mar, as flowing from
the preceding propositions affirmed directly or indirectly by
the House of Lords, are briefly these : — He stands primA fcxie
in a much better position since the debate of the 9th July,
and the Eeport of the Select Committee, 27th July 1877, than
he did before, that is, subsequently to the Eesolution of the
25th, and the promulgation of the Order of the 26th February
1875. Whereas at that time it was considered that the uncom
promising assertions of Lord Chelmsford, Lord Eedesdale, and
Lord Cairns in their speeches, to the effect that the original
Earldom of Mar was extinct, constituted a judgment, upon
which the Order of the 26th February 1875 might justifiably
be issued, it has now been admitted by the House of Lords
that it is an open question whether that ancient earldom is or
is not extinct, and that a claim is competent on the part of the
heir-general, the existence of the comparatively modern earl
dom of 1565 being no barker se to the continued existence of
the ancient dignity. I notice also a gradual cessation of the
qualification of " claimant " so long attributed to the heir-
general, alike in the House of Lords and out of it, and notably

SECT. I. THB EAELDOM OF MAE. 251
at Holyrood. The Order of the 26th February 1875 is justified,
upheld, and enforced by the House on the ground, necessarily,
of its exclusive jurisdiction in Scottish dignities — I say neces
sarily, because that is the only ground it has to show upon
which it can be vindicated against the charge of being ultra
vires, as issued apart from, and before, any approval by the
Queen of the Eesolution adopted by the House on the 26th
February, in the same breath with the fulmination of the Order
in question. But beyond these superficial considerations, I must signalise
the following, which go to the root of the matter: —
It is admitted that the House has no legislative power, — it
cannot therefore pass General Eesolutions, nor enact private
rules subversive of Scottish law. The General Eesolution
styled Lord Camden's law belongs to the first of these cate
gories; the rule of succession in favour of heirs-male, often
styled Lord Mansfield's law, belongs to the second. Both
these rules are private laws, enunciated for the guidance of the
House of Lords by Lords Hardwicke, Mansfield, and Camden,
are in contradiction to the Scottish law of succession, and set
it aside, and are thus ultra vires of the House. It follows,
therefore, first, that the application of Lord Camden's rule to
the interpretation of Queen Mary's charter of the 23d June
1565 was without warrant, and that that charter must be
understood to carry the dignity along with the fief or territorial
Comitatus of Mar ; and, secondly, that the appUcation of Lord
Mansfield's rule, reversing the Scottish rule and presumption
of succession in favour of heirs-general, was without warrant,
and that Lord Mar succeeded as a matter of course de jure and
de facto to his uncle, the late Earl, as next of kin, in 1866,
the original destination " hseredibus," or to heirs-general, in the
charter of 1565 not having been altered in favour of heirs-male
by any subsequent grant, and the heir-male. Lord KeUie, con
sequently having no pretensions to it, as in fact he makes no
pretension. It follows equaUy that on the hypothesis of a new
creation in 1565, the heir-general and no other inherits under
it ; and there is no place for Lord KelUe as Earl of Mar under
either creation, — precisely as the officers of the Crown advised
the House of Lords in their address on the 4th May 1874.
The abnegation by the House of legislative power, except in

252 THE EAELDOM OF MAE. let. xv.
so far as delegated to it by Statute, thus cuts away the ground
from under the feet of the Eesolution in favour of Lord KeUie,
25th February 1875. This is per se enough to vindicate his
right in the eyes of the House of Lords itself, as now opened to
the limits of its powers of action by the Eeport of the Select
Committee, and this independently of the acknowledgment
equally involved in the abnegation in question, viz., that the
House has no power to supersede the final judgment of the
Court of Session in 1626, which, as I insisted in my first Pro
test, determined once and for ever the validity and invalidity
of the documents used and founded upon the legality and
iUegality urged respectively by Lord Mar and Lord KeUie in
1875. The broad sanctions of the Treaty of Union, protective
of the laws of Scotland and the privUeges and judgments of the
Court of Session, cover the whole of this remonstrance with
their protective wing. Section II.
Act o/ 1847 defective in point of authority.
It remains for me to subject the Act of 1847 to that deeper
and more searching criticism which is required at my hands.
This criticism will remove, I think,, all risk of its being fruther
thought of in connection with Lord Mar ; and it wUl furnish
matter for consideration for the Peers of Scotland as a body,
which I shall touch upon in my concluding Letter.
WhUe the Act of 1847 is, I have shown, as inapphcable
ex terminis to the case of Lord Mar, there is a further and
fatal flaw attached to it, which I must here expose — although
with enhanced consciousness of the responsibUity attaching to
one who questions the legality of an Act of Parliament. But
it is an Act passed by EngUsh lawyers upon a matter governed
exclusively by Scottish law, and I cannot shut my eyes to the
defect attaching to it. My proposition is that the Act cannot
be applied to the case, not only of Lord Mar, but of the very
pretenders against whom it was, as I have shown, directed,
inasmuch as it is defective in point of authority, and proceeds
a non habente potcstatem.
1. By the custom of England, the sole and ultimate juris
diction in claims to dignities is vested in the Sovereign,

sect. II. THE EAELDOM OF MAE. 253
to whom claims must be preferred by petition, i.e. peti
tion of right. The House of Lords, or any other con
sultative body, to which the Sovereign may apply for
advice as to the merits of the claim, advises the Sove
reign, but does not judge. The words " resolved and
adjudged " prefixed to Eesolutions express nothing but
the opinion of the House or other consultative body as
to the merits, and such words as " adjudication," " de
cision," "judgment," express — as actuaUy admitted by
the House in 1877 — no higher sanction. But I need
not recapitulate what was so clearly laid down, in
sequence to older authority, by Lord Chelmsford him
self in his speech on the Wiltes case, already cited. No
privilege or prerogative of the Crown can be taken away
except by express words in an Act of ParUament ; such
privilege or prerogative cannot be affected by words of
implication, or in any indirect manner ; and yet this
transcendent privUege of the Sovereign is actually
ignored by the Act of 1847 as if it had never existed, —
the Act proceeding on the tacit assumption on the part
of the House of Lords that it is possessed of absolute
jurisdiction — the right of the Crown being recognised
as a matter of form, but practically disregarded. It
is this bare assumption which, as I have shown, under
lies the whole debate of the 9th July 1877- — the
authority of the Queen, set absolutely at nought as
it was by the Order of the 26th February 1875, being
utterly overlooked, except by Lord Mansfield, from first
to last. The Act of 1 847 slipped through Parliament and
received the sanction of the Sovereign under this culpable
oversight ; but neither Parliament nor Sovereign, nor
both together, can alienate a jewel of the prerogative,
or an acknowledged privilege of the Crown, by a side
wind, or without express specification of the privilege
which is to be taken away ; and thus the Act of 1847,
defective in its most essential point, is an absolutely dead
letter in law, so far as the transfer of the exclusive right
to determine upon dignities according to the custom of
England is concerned. But the Act proceeds further
upon the fallacy of supposing that Scottish claimants

254 THE EAELDOM OF MAE. let. xv.
and Scottish peers are under any obUgation to submit
themselves to the jurisdiction of the Sovereign accord
ing to the English custom. Without going further into
this question, it has to be noted that in aU cases where
the claimant of a Scottish peerage has submitted his
pretensions to the arbitration of the Crown, it has been
under an impUed and necessary although tacit compact
that his claim shall be adjudicated upon by Scot
tish, not foreign law ; and if in any case' this compact
has been broken, the claimant or the peer whose
interest is at stake, re-enters necessarUy into his rights,
and may renew his claim if he so think fit in another
quarter. This is laid down in fact as EngUsh law hy
Lord Chief-Justice Holt in the Banbury case, in the
words elsewhere quoted.^ But in cases where no
petition has been addressed to the Sovereign, as for
example in Lord Mar's case, the English custom is
utterly inapplicable ; and yet the Act of 1847 proceeds
upon the assumption that not even the Sovereign, but
the House of Lords, is the sole tribunal and seat of
justice in regard to Scottish dignities. The Act of
1847 gives away, in a word, what is not its own to
dispose of.
2. Again, by the law of Scotland, which is preponderant in
all cases of Scottish dignities, the jurisdiction in all
civil actions, including dignities, is vested exclusively
in the Court of Session, without appeal to Kmg or
Parliament ; and this jurisdiction, and the relative
right of the subject to prosecute a claim or defend a
right by declarator or defence before the Court, is re
served and protected by the Nineteenth Article of the
Treaty and Act of Union, as has been already shown.
No infringement of the authority or independence of
the Court of Session, no supersession of its functions,
can be constitutionally effected, even in the shghtest
particular, except by express enactment by the ParHa
ment of Great Britain, and then only " for the manifest
benefit of the people of Scotland." Claimants of Scottish
peerages and peers in actual possession of Scottish
' See Letter ii. vol. i. p. 96.

sect. 11. THE EAELDOM OF MAE. 255
peerages have gradually, since the decision of the
Lovat claim by the Court of Session in 1730, come
to adopt the practice of submitting their preten
sions to the judgment of the Sovereign under the
compact and condition above stated, although it is un
questionable that by Scottish law, as matter of constitu
tional obligation affirmed at the Eevolution of 1688,
the Sovereign cannot resume and exercise any jurisdic
tion which the Crown has once delegated to a court of
law, as was the case in regard to dignities, as well as all
other civil rights, when the jurisdiction was conferred
by Statute on the Court of Session, — the exercise of
jurisdiction by the Sovereign in Scottish peerages,
according to the English custom, being thus absolutely a
matter of mere arrangement between the Sovereign and
the claimant, and practical acceptance on the part of
the House of Lords and the Scottish peerage, but in no
wise binding upon any who do not thus submit them
selves ; whUe the jurisdiction, being purely permissive
on the part of claimants, cannot be dealt with or usurped
from the Crown and attributed to the House of Lords
under the idea that the Crown has any legal right to it.
On the other hand, the authority of the Court of Session
to adjudge and determine finally in such cases cannot
be in any way affected by the disuse of application for
its exercise, and most unquestionably cannot be taken
away without special and distinct enactment ; whereas
not only are that authority and the rights of Scottish
subjects (claimants and peers), under the Treaty of Union
not specified, and not expressly rescinded by the Act of
1847, and according to the restrictive provision in the
Treaty of Union, for the manifest benefit of the people
of Scotland ; but it is clear as the sun at noonday
that the framers of that Act, and the Parliament that
passed it, were in blank ignorance of the jurisdiction of
the Court of Session, and of the great privileges and
interests they were meddling with ; and were, as in the
case of the privileges of the Crown in the EngUsh sense,
giving away what was not their own, nor within their
power to dispose of. It does not in fact give, strictly

256 THE EAELDOM OF MAE. let. xv.
speaking ; it assumes that the House of Lords possesses
the jurisdiction, and then provides means for the exer
cise of the jurisdiction in the particular cases it deals
with.
3. Such then being the conditions affecting the Scottish and
English law and practice in cases of honours, the Act of
1847 falls short of the requisites of validity in the
following points : — It ignores, in the first instance, both
the judicial functions of the Sovereign, in so far as such
may be considered to obtain in cases of petition to the
Crowu by Scottish claimants ; and, in the second, the
statutory jurisdiction of the Court of Session in digni
ties, exercised without a break from the constitution of
the Court in 1532, tUl 1707, the year of the Union;
and in the Lovat case and others subsequently to the
Union, untouched and uncurtaUed by any legislation
down to the present time ; and then, without special
recitation and abrogation of the privUeges of the Crown,
or any special recitation and abrogation of the judicial
authority of the Court of Session, provides a machinery
for the trial of the right to Scottish peerages before the
House of Lords, on the bare assumption that the House
possesses jurisdiction in such matters, not by conferring
it, — the House possessing, in fact, none. Neither the
privUege of the Crown, nor the powers of the Court of
Session, nor the right of the subject to resort to the
Court, can be affected indirectly or by impUcation ; and
the Act of 1847 being utterly wanting in the clauses
and enactments requisite in order to give effect to the
intention of the Legislature, is thus, as" I have asserted,
a caput mortuum, incapable of being appUed either
to the case of the Earl of ]\Iar or that of any other
peer, or even to the case of pretenders such as the Act
is exclusively directed against, as by the terms of its
preamble and the evidence of the Eeport of the Select
Committee out of which it sprang.
4. The only plea that I can think of as likely to be urged in
support of the Act of 1847 is, that it is an Act of
ParUament, and, being such, must — Uke the Mar
decision of 1875 — be obeyed, right or wrong. The Act

SECT. 11. THE EAELDOM OF MAE. 257
of 1847, striking as it does at pre-existing constitutional
rights, can only be vindicated by the assertion of the
" omnipotence " of Parliament. I have not forgotten
Lord Chancellor Cranworth's words in his speech on the
Montrose claim in 1853, referring to an argument he
attributed to the officers of the Crown (acting on be
half of the Duke of Montrose in opposition to my
father), but which he adopted as his own, — " although
by no ordinary course can a peerage end except by
attainder or some other mode in Scotland" (i.e. by
resignation), " yet there must be one exception to the
rule so defining the mode in which a peerage may
become aUenated ; for it may be put an end to by what
we sometimes call the omnipotence of ParUament.
ParUament can destroy a peerage, or take a person's
property, or do anything else" — although not, as I
maintained in my published Eeport of the claim,
without just cause, not in violation of existing law, not
through its own inherent and independent despotism
overruling existing law. But, whatever might be the
omnipotence of the Scottish Parliament in the fifteenth
century, tbe period to which Lord Cranworth referred,
or whatever may have been the omnipotence of the
English ParUament up to the date of the Union in
1707, I have to remark (as I did in 1852) that the
" Parliament of Great Britain " is in no sense omnipo
tent since the Union. It may be weU for the Peers of
Scotland to recollect the argument of such of their
number as advocated the Treaty of Union in the last
Scottish ParUament in 1706, and the discussion upon
the Third Article of the Treaty. It was urged by the
opponents of the Treaty, " that, whatever agreement is
now concluded between the two kingdoms wiU never
be binding to the new Parliament," i.e. that of Great
Britain, — " that the two kingdoms effectuaUy subject
themselves to the new Parliament, all the conditions
stipulated on either side to the contrary in any wise
notwithstanding." The answer of the Peers who sup
ported the measure was, as reported by Defoe, this :
" That the British Parliament were absolutely bound up
VOL. II. E

258 THE EAELDOM OF MAE. let. xv.
by the stipulations of this Treaty ; that they, being a
subsequent power to the two respective ParUaments of
either kingdom, had no other or further power to act
than was limited them by the stipulations of both
kingdoms : That all subsequent power is inferior in its
extent to the power which it derives from : That the
Parliament of Great Britain, being the creature of the
Union, formed by express stipulations between the two
separate Parliaments of England and Scotland, cannot
but be unalterably bound by the conditions so stipu
lated, and upon which it received its being, name, and
authority. The foundation of a British ParUament is
this Treaty — to say they wUl not be bound by it is to
say they wiU pull themselves up by the roots ; they die
when the Union receives any mortal wound ; they can
not infringe one article of the Union ; they cannot put
a question in the House upon any one article."^ It was
upon this understanding that our ancestors, the Peers of
Scotland, consented, as one of the Three Estates of Par
liament, to the great and beneficial Treaty and Act
which can never become obsolete so long as the co
hesion of the two nations continues ; and I say, there
fore, that the argument that the Act of 1847 must he
binding, and the authority it purports to confer upon
the House of Lords in respect of the claims arising out
of contested votes at Holyrood, and in recognition of a
power of jurisdiction in the House whieh they do not
possess by law or treaty, cannot be vindicated on the
ground that the Act is an Act of Parliament, and, being
such, must be obeyed in vu'tue of the omnipotence of
Parliament — an impious word at best, but which smce
the Union has ceased to be in the sUghtest degree
applicable as against the laws of Scotland, and the rights
of the people of Scotland under those laws, as protected
by the Treaty of Union.
One further question arises upon the criticism of the Act
of 1847, and which has its marked bearing upon the general
question involved in the present observations.
It may have been remarked that two Acts of Parliament—
• Defoe's History of the Union, p. 357.

sect. II. THE EAELDOM OF MAE. 259
one of the Parliament of Scotland before the Treaty of Union,
2d February 1707, but which is declared to be of the same
force as if it was engrossed in the Treaty, and the other of
the first Parliament of Great Britain after the Act of Union,
6 Anne, cap. 23— are referred to in the preamble of the Act of
1847, and in the recent Eeport of the Select Committee of
1877 in echo of that Act, as if the two Acts in question fur
nished a basis, and standing authority, and warrant for subse
quent interference by Parliament in respect of the elections of
Scottish Eepresentative Peers. But a reference to the Acts
themselves — neither of which are printed in the Appendix to
the Eeport — will show that they have no such import. I am
sorry to delay the reader upon what may appear to be minute
criticism, but such is never deprecated by those who are
anxious to pierce to the foundations of truth.
When the first, or Scottish, Act was passed, the Privy
Council for Scotland was stiU in existence, and the writ for
the purpose of summoning the Peers for election of their
Eepresentatives was ordered to be addressed to that Council.
But the Privy Council was abolished, or rather absorbed into
the Privy Council of the United Kingdom of Great Britain,
immediately after the Union ; and the course adopted was to
issue a Eoyal Proclamation summoning the Peers directly to
the fulfilment of their duty. The aboUtion of the Privy
Council, which was in contemplation when the Scottish Act
was passed, was effected by the Statute 6 Anne, cap. 6 ; the
Scottish Act being the first, and the Act 6 Anne, cap. 23, the
third in historical and relative sequence, being the second
enumerated in the Act of 1847, the intermediate Act contain
ing the constitutional change which connects the first and the
third being omitted. The words " further provision," on which
stress is laid in the preamble of the Act of 1847, have ex
clusive reference to the modification in the form of the writ of
summons to the peers, thus elucidated. The Act 6 Anne,
cap. 23, contains many provisions respecting the oaths to be
taken, declarations signed, and otber formalities connected
with the elections ; but neither the Scottish nor the EngUsh
Act confers the authority for future interference, regulation,
and legislation, which the Act of 1847 assumes to be its own
warrant. On the contrary, when the Houses of Parliament had

260 THB EAELDOM OF MAE. let. xv.
passed the Act 6 Anne, cap. 23, to the effect stated, their com
mission under the authority of the Treaty of Union and the-
Act of the Scottish Parliament 7th February 1707, was ex
hausted, and ParUament became functus thenceforward.
If anything is clear from both Acts — and the second recites
and confirms the former, except in the particular change necessi
tated by the abolition of the Privy CouncU — it is this : — 1. That
the election of the sixteen Eepresentative Peers is to be by
their brother peers by open election, in absolute independence
of any extraneous authority ; 2. That the office of the Lord
Clerk Eegister, or of the Clerks of Session in his absence, is
simply to attend, ask for, and register the votes, and report
the result to the proper quarter; and, 3. That no power is
given to Parliament, and a fortiori to the House of Lords, to
interfere in elections, or to prescribe and regulate the manner
in which they shall be held, or take any cognisance of rights
to vote, or make use of the Lord Clerk Eegister as an instru
ment for controlUng the free action of the assembled Peers.
Any such interference, therefore, is an infraction of an Act
which is itself declared to be as vaUd as if " engrossed " in the
Treaty of Union.
On this ground, therefore, per se, the Act of 1847 proceeds
without sufficient authority. It may be really aUowed that
abuses had sprung up through the tendering of votes by mere
pretenders during many years previously to 1847, but when
the Select Committee in 1847 observed in their Eeport that
" it is beUeved that the Peerage of Scotland is the only body
invested with important privUeges in this kingdom without
any provision being made for testing the right of those who
may claim to exercise them," they were in ignorance of the
law affecting such questions, and which is standing law at the
present moment under the Treaty of Union. The question of
the right to vote, as dependent upon legal possession of the
dignity upon which the vote is tendered, pertains exclusively by
law to the cognisance and determination of the Court of Session
now, as before the Union. No doubt could possibly exist on
the subject, either in the Parliament of Scotland on the one
hand, or in that of Great Britain on the other, at the time of
the Treaty of Union, which speciaUy protected the Court
and the subject in their existing rights and privUeges. I

sect. n. THE EAELDOM OF MAE. 261
have already noticed that the Order of the House of Lords
12th February 1708, on receiving what is now caUed the Union
Eoll of the Peers of Scotland, and directing it to be entered into
the Eoll of Peers, added the following salvo : — " That whereas
there are several Protests entered on the Eecords of the Parlia
ment of the part of Great Britain called Scotland in relation
to the precedency of the Peers, the said Protests shall be and
are of the same force with relation to their claim of precedency
as if they had been entered in the Eoll of Peers, or in the
Journal of the House of Lords." This was in full apprecia
tion by the House of the right of the Court of Session to
adjudicate in all such claims " as accords of the law," in the
usual course of justice. And in the like manner we may be
weU assured that it never entered into the mind of man to
conceive at that time that the question of the right to a dignity
arising in the course of an election at Holyrood could be con
sidered or decided upon by other judicial authority than the
Supreme CivU Court, which enjoyed absolute cognisance in
such cases, and whose jurisdiction had just been affirmed and
reserved by the great international Treaty of 1707. In a word,
the necessary machinery for preventing recent scandals, in
accordance with the law of Scotland, exists unimpaired and
available at the present moment.
Everything, in fine, points to the conclusion tbat the Act
of 1847 was passed most hurriedly and inconsiderately through
Parliament. The original draft was prepared, as we have seen,
by Mr. David Eobertson, a most respectable man, but a mere
Parliamentary law-agent and conveyancer. No other evidence
than his, and that of Mr. Eussell, was taken by the Select
Committee, while it does not appear that the law officers of
the Crown for Scotland were consulted on the occasion, or that
any inquiry was made into the law of Scotland with reference
to the jurisdiction in dignities and the elections at Holyrood.
The examination of the two gentlemen referred to took place
on the 7th May; the Eeport of the Select Committee was
ordered to be printed on the 4th June, and the Act, which has
been the subject of these observations, was passed on the 25th
of tbat month — rather rapid legislation. It has proved, like
previous attempts, but a crude and impotent concoction ; and
the Act can only be classed among those " various -remedies"

262 THE EAELDOM OF MAE. let. xv.
attempted by the Eesolutions of the House of Lords, although
in this case by higher apparent authority, which, by the
acknowledgment of the Select Committee of 1847, had proved
" insufficient " or " inoperative " towards checking the abuses
complained of; and it ought to be erased from the Statute-
book. The Act looms like the spectre of Loda in Ossian, a
gigantic but unsubstantial form, a standing menace to the
Peers of Scotland ; its direct effect being to subject them for
the first time, their rights to their ancient dignities, and the
Peerages of Scotland at present dormant or supposed to be
extinct, standing on the Union EoU, to the tender mercies of
a court, which would be in the spirit of the Act a court of first
and last instance, and irresponsible, from which no appeal is
possible — only to be compared to a Star Chamber, but from
which the Sovereign is excluded. The Act ignores aU existing
law and custom, alike of Scotland and of England, and the
Treaty of Union, which is the mainstay of Scottish Uberty, on
the assumption that the right and pri-vileges of the Peers of
Scotland, and I may say of the people of Scotland, of wliich
they are an integral part, may be dealt with by the sic volo sic
jubeo of Parliament. The Act, as it stands, furnishes a foun
dation and precedent for a similar prostration by Act of ParUa
ment of the peers and peerages of England to the arbitrament
of the House of Lords — a body who, it should never be for
gotten, have repeatedly, from time to time, attempted to act
in such cases irrespectively of the Sovereign. "Proximus
ardet Ucalegon." On general principles, therefore, the Act
should be protested against as defective in proper sanction,
and proceeding a non habente potcstatem.
Such, then, is the character of the Act 10 and 11 Vict. cap.
21, or of 1847, which the Eeport of the Select Committee drawn
up by Lord Cairns has thus tied like a coUar of slavery round
the neck of the Peers of Scotland, without the slightest con
sciousness that this would be the effect of his resort to it.
I shall conclude the present Letter, and indeed the whole
series up to the present point, by a few practical observations
respecting — 1. The position of the Peers and people of Scot
land generally, as affected by the Mar decision ; and 2. The
manner in which claims to Scottish dignities ought, I think, to
be prosecuted from this time forward.

sect. II. THB EAELDOM OF MAE. 263
1. I may repeat, on the first point, what I said in my first
Protest : — " Acceptance of the vote of the Earl of KelUe as
Earl of Mar in virtue of the report" (of the 25th February
1875), "grounded as above," i.e. on disallowance of the Decreet
of the Court of Session in 1626, and on the principle that the
House of Lords have power to overrule such decisions, " would
. . . amount to a sanction and homologation of the principle
indicated ; and such sanction and homologation must import
very grievous perU to the Peers of Scotland, and to heirs and
claimants of Scottish dignities, at a time when the above novel
and revolutionary principle, adopted and enforced by Com
mittees for Privileges, threatens, if acquiesced in, to deprive
them of aU security against their ancestral rights, as dependent
on judgments of the Court of Session, being overruled and set
aside hereafter, as in the three cases " (of Glencairn, Montrose,
and Mar) " above specified, the uncertainty and perU being now
such that no man can say where the blow will next faU." I
further protested, " because . . . acceptance of the vote of the
Earl of Kellie " as Earl of Mar, upon the report of the Com
mittee for Privileges, founded on the principle above shown,
" would be incompatible with rightful obedience to the law of
the land, and due reverence for constituted authority; and
would thus amount not merely to the sanction of private
wrong, but to the infliction of public injury, striking at the
roots of justice." Whether or not this apprehension is justified
I leave to the reader who has perused the preceding pages.
I have said nothing of the leaning in the House of Lords to
discourage claims to ancient dignities, initiated by Lord Hard
wicke in the CassiUis case, and expressed in the strongest
terms by Lord St. Leonards in the Montrose case, when he pro
posed that a " limitation of time " should be put upon claims to
peerages, "in order to prevent such enormous expense, and
such consumption of time as must very often take place in
regard to claims of ancient peerages " — instancing the Montrose
claim as a case in point. I shaU probably consider this ques
tion in another work, but will not do more than simply notice
it here, with the observation that Lord St. Leonards's proposi
tion strikes at the very roots of the Scottish Peerage, many of
the dignities held by Scottish families being of date far older
than 1488, the period pointed at by the noble and learned Lord ;

264 THE EAELDOM OF MAE. let. xv.
while most of them are descendible by their constitution to
distant collateral heirs. Many a lofty and branching tree,
cherished and venerated by the people of Scotland, and by the
numerous tribe of " Scoti extra Scotiam," as landmarks of
their ancestral and national history, would thus be levelled
with the dust.
2. What practically and immediately concerns Scottish
Peers, anxious for the due and legal descent of their dignities,
and Scottish claimants of such dignities, in the presence of the
current system of claiming by petition to the Crown, and
receiving what is now assumed to be the final and irreversible
sentence, not of the Sovereign, but of the House of Lords
— is the question. Would it not be wise for claimants to
return to the only constitutional and legal tribunal for the
decision of such claims, the Court of Session? It must
be remarked, as I have already stated, that it is only by aUow
ance on the part of claimants that they have invited the
Sovereign to arbitrate on their pretensions, according to the
custom of England, and this on the faith of an implied compact,
viz., that the Sovereign shall, under due advice, decide on the
principles of the law of Scotland. But in the present instance
that compact has been broken by the procedure of the House
of Lords in enforcing rules and laws of its own devising since
the CassUlis and Sutherland claims, superseding those of Scot
land, to say nothing of the overrulement of the final decision of
the Court of Session, that procedirre having been confirmed by
the Sovereign. Claimants themselves are, according to Lord
Chief Justice Holt, entitled to resort to the courts of law in
such cases, if the award of the Sovereign is unjust ; but under
any circumstances the compact can no longer be considered as
existing when the House of Lords has assumed the entire pri
vilege and responsibiUty of jurisdiction. It was not with the
House of Lords but the Sovereign that the original compact
was made ; and claimants under any circumstances thus re
enter with their original rights of resort to the legal courts of ,
their country. This subject wUl be resumed in the concluding
Letter.

SECT. I. THE EAELDOM OF MAE. 265

LETTEE XVI.
LATER INCIDENTS IN THE CONTROVERSY.
The relative position of the parties in this great struggle- —
of Lord Mar and the House of Lords — has not been changed
by anything which has taken place since the Eeport of the Select
Committee of 1877. Two elections of Scottish Eepresentative
Peers have been held at Holyrood, on the llth March 1879
and on the 13th AprU 1880, at each of which there was dis
cussion on the subject of Lord Mar's right ; and a conversation
took place in the House of Lords in the interval between those
two elections, on the llth July 1879, on the occasion of some
questions put by the Marquess of Huntly, in answer to which
Lord Cairns and Lord Selborne, Lord Selborne more par
ticularly, contributed further elucidation as to their views with
respect to the significance of the Order 26th February 1875,
and the right of the House of Lords to intervene judiciaUy in
Scottish dignities. These views must, of course, be considered
— in so far as they may be developed beyond those asserted in
1877 — as simply the personal opinions of the noble and learned
Lords, without the sanction and stamp which the Eeport of the
Select Committee, and the acceptance of that Eeport by the
House, gave to them as originally promulgated. I shall notice
these successive events, but, with the exception of Lord Cairns's
and Lord Selborne's speeches, very briefly.
Section I.
Election of Wth March 1879.
Notwithstanding the damaging admissions of the House of
Lords in 1877, the Order of the 26th February 1875 has been
enforced by the Lord Clerk Eegister at the elections of 1879

266 THE EAELDOM OF MAE. let. xvi.
and 1880 ; the vote of Lord KeUie as Earl of Mar, under the
alleged creation in 1565, has been received and counted in the
place and precedency of the original earldom, to the violation
of the rights of precedency of the seven Earls created between
1457 and 1565 ; and Lord Mar has been compeUed to abstain
from offering to vote lest the provisions of the Act of 1847
should be brought to bear against him.
I thought it advisable at the election of 1879 — partly in con
sequence of the development of opinion in the House of Lords
indicated by the Debate and tbe Eeport of the Select Com
mittee in 1877, and partly in order to impress the historical,
legal, and constitutional grounds of my remonstrance more
deeply on the records of Holyrood — to lodge an Additional
Protest against Lord KeUie's vote being received as Earl of
Mar on the Union EoU, in prejudice of the heir-general, the
direct and lineal representative of Eobert Earl of Mar in 1438,
as recognised by supreme Scottish authority — the service of
1565, the Act of Parliament of 1587, and the decreet of the
Court of Session in 1626. I prefaced the rationes of this Pro
test by a statement of facts as to the law and usage of Scot
land affecting territorial earldoms, and by a sketch, necessarily
very brief, of the history of the Mar Earldom, — ^pointing out
that the present Earl does not stand in the position of an "un
successful claimant" of a dormant dignity; whUe, by the
Scottish law and presumption of succession, he would be
entitled, as heir of line, to the Earldom of 1565 (the Earldom
claimed by Lord Kellie), were such a dignity in existence, no
less than he is to the ancient and existing Earldom holding its
its precedency from 1404, of which he is actuaUy in possession.
" In no possible way, therefore," I protested, " can there be any
one entitled to vote in right of the one and only Earldom (of
Mar) standing on the Union Eoll and the Decreet of Eanking,
except the heir-general." I had been anxious to protest hke
wise against the Order, on the ground of the nuUity of the
Act of 1847, but my friend Mr. Maidment discountenanced
this, I presume as premature, aud I acquiesced, having great
confidence in his discretion and judgment. He was then very
Ul, in rapidly declining health, and has since died, to the grief
of his friends, who lament in him a profound authority on
matters of Scottish genealogy, peerage law, and philology, and

sect. I. THB EAELDOM OF MAE. 267
to the special disadvantage of myself, who had calculated on
submitting these present Letters to his observation and criti
cism. Of the rationes of this Additional Protest I need only
cite those of a more general character, founded upon prin
ciples of law which stand opposed to the views recently pro
mulgated in the House of Lords, and which were severely
commented upon by members of the meeting at Holyrood, at
which the Protest was presented. They are as follows, and I
add a word or two of comment to each —
"I. By the Treaty of Union between England and Scotland
it was covenanted that the laws, customs, and usages
of the latter kingdom should be held sacred, and in no
manner of way violated; and the inhabitants thereof
.should not be judged by any other law than their own."
Even if the House of Lords possessed legislative power
ia its ordiuary sense (granting this pro argumento), the
supersession of (for example) the Scottish rule of suc
cession, and the overrulement of the final Decreets of
the Court of Session, would be in violation of the solemn
compact between the two sister nations, and thus ultra
¦vires of the House.
" V. By the Treaty of Union no power is given to the Crown,
Parliament, or Courts of Law in England, to challenge
the rights of any Scottish subject to his estates or
dignities. Where such is intended, it must be done in
the Supreme Court of Scotland, and decided — not by
the law of England, but by that of Scotland only."
Neither Parliament, through such legislation as that of
1847, nor a fortiori the House of Lords, even were its
assumed character as a court of law with jurisdiction
over dignities recognised, can legally interfere to debar
Lord Mar from exercising his right to vote, or bring his
right to adjudication before the House, through the
machinery of the Act of 1847. It is only the Court of
Session that is competent to move in the matter.
" VII. A Committee for Privileges has no power to create a
Scottish, or indeed any other, peerage ; and in the pre
sent instance, where there is not the slightest evidence
by writ or other competent proof that a new peerage of
Mar was ever created, their Eesolution, although con-

268 THE EAELDOM OF MAE. let. xvi.
firmed by the Peers and approved by the Sovereign, is
inoperative, and must be held null and void." Lord
Kellie has more than once in his recent Letter called
attention to this passage, citing it on the second occasion
of reference as a general proposition, and as iUustrative
of the " general contempt with which,'' according to his
Lordship, I treat " decisions of the House." The context
will show the sense in which I used the words, and
maintain their correctness. I granted indeed more than
I should have done ; for the approval of Her Majesty
was, as I have shown, taken for granted by the House
of Lords when they issued the Order, 26th February
1875, without waiting for that approval, and thus with
out warrant — the House being functus officio, as already
shown, at the time and indeed ever since.
" IX. As, after the Union, the Crown had no longer the power
to create a Scottish Peer, the instrumentality of a
Eeport of the Committee for Privileges, approved of hy
the House of Peers, cannot enable Her Majesty to do
that which she has no constitutional power to do."
And yet such is the inevitable result of the late decision,
the more especiaUy since the acknowledgment by the
House that the speeches in Committee for Pri-vdleges are
not to be imported into the Eesolution of the 25th and
26th February 1875. Practically, the intervention of
the Sovereign being now excluded from the considera
tion of the House, the creation in question is by the
sole authority of the House of Lords, and it may be
imagined with what horror the wise and learned Lord
Chancellor Eldon would have contemplated such a
thing, — he who exclaimed — "But for God's sake let
not the House by mistake make a peer ! "
The Earl of Stair did me the honour to adhere to my pro
test in a separate protest of his own. The Marquess of Huntly
protested " against the vote of the Earl of Kellie being accepted
in right of the dignity of Mar, inasmuch as the Earldom of
Mar, created in 1565, and resolved to belong to the Earl of
KelUe, is not the Earldom on the EoU of Scottish Peers." The
Earl of GaUoway, in a protest Ukewise lodged, objected "to
the Eight Hon. Walter Henry Erskine Earl of Kellie answer-

SECT. I. THB EAELDOM OF MAE. 269
ing to the title of Earl of Mar on the Union Eoll ; " and pro
tested " against his vote being accepted in right of the dignity
of Mar, inasmuch as the Earldom of Mar, alleged to have been
created in 1565,and resolved to belong to the Earl of KelUe, is not
on the Eoll of Scottish Peers ; and further, seeing that the Eight
Hon. John Francis Erskine, Earl of Mar and Baron of Garioch,
is the undisputed heir-general and next of kin of his uncle, the
late John Francis Miller, who held and enjoyed the ancient
and only Earldom of Mar on the Union EoU, and that the said
John Francis Erskine Earl of Mar, having legally quaUfied
himself as successor to his said uncle according to the forms
competent to the peers of Scotland, is thus in exactly the same
position as every other Scottish peer ; and further, seeing that
his position has been in no way affected by the decision in
1875, which conceded to the Earl of KelUe a Mar dignity by
an alleged new creation in 1565, it follows that the said John
Francis Erskine is now de jure and de facto, by the laws of
Scotland reserved inviolate by the Treaty of Union, the actual
tenant of the ancient and only Earldom of Mar on the Peerage
Eoll of Scotland : And I hereby protest against his vote as
Earl of Mar (should it be tendered) being rejected, and against
his being at any time and in any way denied rights and
dignities he inherits as representative and holder of the said
ancient and only Earldom of Mar on the LTnion Eoll of Scottish
Peers." Viscount Stormont (Earl of Mansfield in the Peerage
of the United Kingdom) and Viscount Arbuthnot protested in
the same terms, " of adherence to Lord Galloway's protest."
Lord Strathallan likewise protested " against the vote of the
Earl of Kellie being accepted in right of the dignity and Earl
dom of Mar."
Mr. Keir, advocate, who presented all these Protests,
requested that they should be recorded in the Minutes of the
proceedings. The Lord Clerk Eegister said " that the Protests
would be received with respectful consideration ; but in regard
to the proposal that they shaU be recorded in the Minutes of
the day's proceedings he would consult his learned friends."
Lord Elphinstone then addressed the assembled Peers on
the subject matter of a paper which had been circulated along
with my intended protest in print some days before the election,
and which he thought was written by myself, which it was

270 THE EAELDOM OF MAE. let. xvi,
not ; nor was I cognisant of it, being absent on the Continent
at the time. The mistake was natural, and the explanation
simple, though I had not unfortunately the opportunity of
explaining the matter. Passing to the Protest itself. Lord
Elphinstone took exception to various items, the most import
ant of which were as follows : —
" The Earl of Crawford summed up in this way : — ' By the
Treaty of Union between England and Scotland it was cove
nanted that the laws, customs, and usages of the latter kingdom
should be held sacred, and in no manner of way -violated ; and
that the inhabitants thereof should not be judged by any other
law than their own.' They were certainly under subjection to
tbe Courts of Appeal of Great Britain, so that that was a state
ment he was not prepared to admit." On this I must remark,
the covenant and provision is matter of fact, notwithstanding
Lord Elphinstone's indisposition to admit it ; and the manner in
which the practice of appeal from the Court of Session to the
House of Lords grew up through a practical usurpation by the
latter body may be seen in the paper in my Eeport of the
Montrose claim, elsewhere referred to. Facts, not words, are
in question. " Further on the Earl of Crawford said, referring
again to the Treaty of Union, where any question was raised,
' it must be done in the Supreme Court of Scotland ; and
decided, not by the law of England, but by that of ScoUand
only.' So that the Peers of Scotland, it would appear, were a
select body who were not to be governed by the laws of Eng
land ; or rather he should say, Great Britain, but were indepen
dent of them, above them, beyond them!" The apostrophe
and the climax here are admissible in rhetoric ; but the ques
tion at bottom is, What says the Treaty, and have I misquoted
it? "Then again the Earl of Crawford went back to the
Peerage of Mar and said, ' There being no Peerage of Mar on
the Union Eoll other than that which is referred to the ancient
territorial Earls, and was afterwards in possession of John,
subsequently attainted for high treason, and no claim for any
new Earldom having been advanced in the Eanking and Decreet
pronounced in March 1606, it follows as a necessary conse
quence that no new creation was made, and that the assertion
that there was such is unfounded.' That was defying the
decision of the House of Lords. ' The allegation,' the clause

sect. I. THB EAELDOM OF MAE. 271
proceeds, ' to that effect maintained by the Earl of Kellie is
therefore not grounded on fact, and must be rejected.' Were
they to reject the decision of the House of Lords ? That was
what the clause wanted them to do. Then, in the 7th clause,"
continued Lord Elphinstone, " the Earl of Crawford said what
was perfectly true, viz. ' A Committee of Privileges has no
power to create a Scottish, or indeed any other Peerage ' — no
one said they had — ' and in the present instance, where there
is not the sUghtest evidence by writ or other competent proof
that a new Peerage of Mar was ever created, their Eesolution,
although confirmed by the Peers ' — he seemed to forget that
the Committee of Pri-vileges was simply a Committee of the
House of Lords, and any act confirmed of them was an act of
the House of Lords ;' but he does not stop there, and adds, ' and
although approved of by the Sovereign, is inoperative, and
must be held nuU and void.' Therefore they were caUed upon"
— I must really interpose to remark that Protests are not
addressed to the Peers present at elections for the purpose of
their criticism and for adjudication to foUow upon them, but
merely communicated to them as appeals for remedy of law
before a very different tribunal — " called upon," according to
Lord Elphinstone, "to set aside a decision of the House of
Lords, and not only that, but one that bad the approval of the
Sovereign, as inoperative, and as one that must be held to be
nuU and void. He never read such a statement in aU his life.
To have passed that document by in silence would have been
to give a tacit approval to it. He would not do that, and that
was his reason for calUng attention to the saUent points of the
document." I give this speech tempered by my own criticism, inasmuch
as it would be impossible to iUustrate more forcibly, more
dramatically, the impression current among Lord KeUie's
friends, the champions of heterodoxy, on the whole cycle of
views and facts which form the subject of this Letter, these
views and facts coming into play with reference to the elec
tions at Holyrood, and the discussions in the House of Lords
in regard to them.
The Marquess of Lothian supported Lord Elphinstone's
criticism upon my Protest, which, he said, "was couched in
terms, if it were to be received, too improper to be passed by

272 THE EAELDOM OF MAE. let. xvi,
in silence by their Lordships." Independently of the " salient
points," which Lord Elphinstone had dwelt upon, he would
" call attention to one or two other points which it would be
impossible for him or any other passing over iu silence. The
first of these points in the Protest of Lord Crawford was
against this reception of the vote of Lord KeUie — they would
call him so for the moment — as the Earl of Mar. He did not
wish to judge in any way whatever as to the right of the two
claimants for that Earldom. He had not gone into that, and
not only could not, but did not wish to go into it. But the
House of Lords, the Supreme Court of Great Britain" — the
reader will observe the position taken up by my noble critic;
he will not even satisfy himself as to the respective right of
those whom he styles " the two claimants for that Earldom,"
thus representing the heir-general as a claimant, and the Earl
dom in dispute one and the same Earldom ; but pins his faith
absolutely on the assumption that the House of Lords has
power to decide upon the question of law in the character of
the Supreme Court of Great Britain ! " But the House of
Lords, the Supreme Court of Great Britain, having decided
that the Earl of KelUe was the proper person to possess the
title of Mar, they" (the assembled Peers) " had no jurisdiction
in the matter any more than the Lord Clerk Eegister, who was
to receive his vote as the Earl of Mar. Therefore he thought
it was most improper in the Earl of Crawford to protest against
that vote, for the reason that they had no jurisdiction. It
ought not to have come before them. It should have gone to
the House of Lords at the time they were deciding upon the
matter." My opinion is different from that of the noble
Marquess, as above intimated. " If it was possible that Francis
Goodeve Erskine could prove his claim to the earUer title, he
would not be sorry to see that one of the oldest creations of
Scotland had been revived," — a graceful and kindly concession
in the spirit which manifested itself in the salvo of the Duke
of Buccleuch's Eesolution, and elsewhere in 1877. "But that
was not the question before them. It was the title of the Earl
of KelUe to answer to the [caU of] Earl of Mar. That had
been decided, and it was not in their power to say ' yes ' or 'no
to that. On reading the 5th clause, as to the jurisdiction of
the Courts, one would think that Lord Crawford and Balcarres

sect. I. THE EAELDOM OF MAE. 273
had existed two centuries ago — before the Union. That clause
in this Protest would have been perfectly right in 1700, but at
the time of the Union, in 1707, the possibility of such being
presented would seem to have disappeared. There was no such
thing as a Supreme Court of Scotland having any jurisdiction
whatever over England." I give this as it is reported; — if
correctly reported, I cannot understand it. " By the Union
Peers became not Peers of Scotland only, but also of Great
Britain ; and therefore it lay not with a Court of Scotland, but
a Court of Great Britain, to decide who were the Peers of
Great Britain. But suppose the Courts of Scotland were to
decide these prima facie, there was power of appeal to the
House of Lords." That, I may remark, opens a very funda
mental question. " More than that, the Court of Session had
never, in his knowledge, attempted to decide on any question
as to the dignities of Peers of Great Britain." Lord Lothian
evidently never heard of the Lovat case in 1730. " He thought
it right therefore, apart from other grounds — and whUe he
thought it was quite right the Protest should be received — to
caU attention to the Protest as not a proper one to bring before
their Lordships on that occasion."
Lord Saltoun theri spoke in thorough agreement with what
Lord Elphinstone and Lord Lothian had said; but with the
following additional statement. " No one," he said, " could be
more sorry than himself to think that one of the ancient Earl
doms of Scotland should have come to an end ; but it had been
decided by the competent tribunal, whose duty it was to decide
such a question, that it had come to an end ; and therefore he
thought the matter should now rest." Lord Saltoun over
looked the fact here that the House of Lords and the Select
Committee of 1877 expressly laid it down that the Eesolution
of 1875 affirmed nothing of the kind — and that the question
whether the ancient Earldom had " come to an end or not," was
stiU an open one. Lord Saltoun concluded by presenting a
counter-protest against my "Additional Protest," "in respect that
the words used in the 7tli section (i.e. reason) of the said Addi
tional Protest, -vdz. ' In the present instance, where there is not
the sUghtest evidence by writ or other competent proof that a
new Peerage of Mar was ever created, their Eesolution, although
confirmed by the Peers and approved of by the Sovereign, is
VOL. II. s

274 THE EAELDOM OF MAE. let. xvi.
inoperative, and • must be held nuU and void (which words
refer to the Committee of Privileges) — call in question and
repudiate the judgment of the House of Lords, of date the 25th
day of February 1875, on the Mar Peerage claims"— om claim
only, T must interpose having been made and having been
reported upon — " transmitted to the Lord Clerk Eegister hy
the Clerk of the Parliaments, together with an Order of the
House of Lords of date the 26th day of February, referring
thereto." Lord Saltoun added that " he thought it necessary
to make this Protest, because he held that they were there now
aU Peers of Great Britain, with the exception of the Umitation
of not having the right to sit and vote in the House of Lords,
which applied to all except the Eepresentative Peers. Now
that they were aU Peers of Great Britain, they should maintain
their right to be tried and judged by the High Court of Great
Britain, and not by any Court of Scotland." Assuredly, if it
were a case of treason ; but Lord Lovat was so tried and judged
as a Peer, not on a report by a Committee for Privileges of the
House of Lords, but in virtue of a solemn and final judgment
fifteen years before by the Court of Session. What would
Duncan Forbes have uttered on hearing such words faU from
a Peer of Scotland ! " He thought it was of great importance
that they should maintain their rights which were given to
them by the Act of Union." I quite agree with Lord Saltoun,
but ask. What rights, and by what article of the Treaty ?
Lord Balfour of Burleigh adhered to the Protest of Lord
Saltoun. Lord GaUoway then stated that he wished it to be " clearly
understood that the terms of his Protest were these, that his
noble friend opposite him should not be allowed to give his
vote as the Earl of Mar for this reason, that he did not con
sider that the House of Lords gave any judgment in this
respect, that he was entitled to the Earldom of Mar as upon
the Union Eoll of Scotland. He held that it was only as
being upon the Union Eoll of Scotland that they were then
entitled to give their votes."
" The Earl of Mar and KelUe " then asked that the Order
ofthe House of Lords sent down ia 1875, "ordering that the
Lord Clerk Eegister should caU upon the Earl of Mar in his
place on the Eoll, and receive his vote," should be read ; which
was done, and the subject dropped.

SECT. II. THE EAELDOM OF MAE. 275

Section II.
Debate in House of Lords, llth July 1879.
The Debate in the House of Lords on the llth July 1879
proceeded on some questions put by the Marquess of Huntly,
originating in the uncertainty in which Lord Huntly himself
and Lord .Mar's other friends had been left by the answer of
the Lord Clerk Eegister to Mr. Keir's request at the election
ofthe llth March previously, that the Protests then tendered
should be recorded on the Minutes of the proceedings at Holy-
rood. The Debate was very interesting ; some new points
were brought under consideration by Lord Huntly on the one
hand and Lord Eedesdale on the other; and the speeches of
the law Lords, Lord ChanceUor Cairns and Lord Selborne,
more especiaUy the latter, were very important. I give the
following Eeport, as before, from the verbatim notes of the
stenographer, abridging those of the lay Lords, but not of
their legal brethren :^ —
Lord Huntly commenced by reviewing the proceedings
which had led to the appointment of the Select Committee in
1877, and called attention to the adoption of the Act of 1847
as the basis of the recommendations given in- the Eeport of the
Select Committee, the Act providing that if two Peers (whose
right to vote is unchallenged) protest against a vote tendered
at Holyrood, the Lord Clerk Eegister shaU forward the Protests
and Minutes of Proceedings to the House of Lords, for the
House to take action upon them as it shall see fit. Lord
Huntly stated that various Peers, personaUy present at Holy-
rood, had protested against the vote of the Earl of Kellie being
received in respect of the Earldom of Mar standing on the
Union Eoll ; and he asked whether a certified copy of the pro
ceedings had been forwarded by the Lord Clerk Eegister and
had been received by the House. " I want to know whether
any notice has ever been taken of the Protests that were made
against the vote of the noble Earl in respect of the Earldom of
Mar as it stands upon the Union Eoll ; and I want to know
¦what your Lordships intend to do upon the matter, because the
Statute goes on to say that the House of Lords may order the
' The Debate is given in extenso in Appendix No. iii.

276 THE EAELDOM OF MAE. let. xvi,
peer whose vote or claim has been so protested against to
estabUsh the same before the said House." This was, in effect,
I may interpose, an attempt to turn the weapon which the
Select Committee had resorted to against Lord Mar's opponent,—
very ingenious, but which laboured under the defect of an
insufficient acquaintance with the object and Umitation of
the Act; while the answer given by the Lord Chancellor
(Cairns) might have been more effective but for the same cause.
" The Lord Clerk Eegister," observed Lord Huntly, " is in this
predicament : he has either accepted a vote from a peer holding
a peerage which is not upon the Union Eoll, or he has aUowed
a peer to vote for a peerage under the protest of two peers
present without transmitting a report of the proceedings to the
House, and in defiance of the Eeport of the Committee for
Peerages " (Lord Huntly meant, evidently, the Eeport of the
Select Committee), " affirming that the holder of the peerage,"
i.e. Lord Kellie, " has not made out his title to the more ancient
Earldom." This Lord Huntly characterised as a very awkward
predicament for the Lord Clerk Eegister, " and a very painful
one for the Peers assembled," under the uncertainty "whether
a vote should be received for the ancient Earldom, and whether
a protest should be acted upon or not."
Lord Huntly further opened new ground in expressing his
opinion that the Lord Clerk Eegister "and the authorities
guiding him " had done more than this, inasmuch as " the vote
which was received and tendered by the noble Earl opposite"
(Lord KeUie) " was upon a Peerage which was under attaint,"
" The position," he said, " is a very simple one. Mr. John
Francis Erskine, in the year 1824, appealed to the Crown to be
restored to the titles and honours of his grandfather, who was
attainted in the year 1715. That Petition was referred to . . .
Sir John Copley, afterwards Lord Lyndhurst, and the other
law officers of the Crown. . . . The law officers reported that the
grandson of the attainted Earl had made out his title and
proved his pedigree — solely through his mother," ignoring Mr,
Erskine's father and tbe male heirship, and only mentioning
him "as the legal consort of Lady Frances," Mr. Erskine's
mother. " Now the Earldom of Mar was placed on the Eoll at
a date previous to the Earldom of Eothes, which is 1457.
There is no reason to fix the date, but the Earl of Mar was

SECT, II, THE EAELDOM OF MAE. 277
placed on the Eoll distinctly previous to the Earl of Eothes.
Any Earldom of Mar except the one restored through the female
succession distinctly could not have been excluded from the
attaint. The Peer who holds the title given to him by the
Committee for PrivUeges, dating from 1565, is still under the
ban of attaint, — it has never been removed. StiU, even under
this attaint, he is aUowed to yote as Earl of Mar upon the EoU,
and holds a Peerage under the Eesolution of the Committee of
PrivUeges, which was not restored by the Crown under the
Eeport of the law officers made in 1824." The objection, as I
understand it, is this, — "that, seeing that, according to the
House of Lords, John Earl of Mar, attainted in 1715, held the
Peerage of 1565, proved to have been limited to heirs-male of
the body, whereas the Peerage restored in 1824 was a dignity
descendible to heirs-general, and inherited by Mr. Erskine on
that tenure exclusively, as by the Eeport of Lord Lyndhurst
and his colleagues, it was the latter dignity only that was
restored, whUe that of 1565 is stUl under attaint; and Lord
Kelhe is incapacitated from voting and the Lord Clerk Eegister
from receiving his vote whUe that attainder is unremoved."
Lord Huntly, at a later period in his speech, asked, " Ought
not the noble Lord to be prevented in some way from tendering
his vote for a peerage which is not on the Union Eoll, and
which is stiU under attaint, if it exists at all 1 "
Lord Huntly further inquired, " Can the Lord Clerk Eegister
call that new Earldom of Mar, which was created in 1565, in
any place upon the Union Eoll at all, when the Eesolution of the
Committee of your Lordships' House," i.e. the Select Committee,
"say that the order of precedence must never be altered ?"
He concluded by expressing his expectation " that after the
Eeport of the Select Committee no vote would have been taken
from the noble Lord opposite upon an Earldom of Mar of an
anterior date to the one which he was decided to hold " — an
expectation in which he had been disappointed. "But a
general election, I beUeve, may take place soon, and what wiU
be the result ? . . . You will have certaialy nine or ten Peers
of Scotland protesting most strongly against a vote being re
ceived. I for one think that this is a question that affects
every Peer of Scotland in a most important degree ; and I shaU
certainly continue my protest against any vote being received

278 THE EAELDOM OF MAE. let. xvi.
upon a peerage as being upon the Eoll which does not exist
there." The Lord Chancellor (Cairns) prefaced his reply to Lord
Huntly by declining to follow him in the discussion he had
raised " with regard to the Mar Peerage. I cannot myself
imagine," he said, " what possible purpose would be served by
pursuing a discussion of that kind in this House after the deci
sion at which the House has arrived."
" The noble Marquess," Lord Cairns proceeded, " had com
municated to him previously the two questions he proposed
to ask. " The first question was, ' Was the Lord Clerk Eegister justi
fied at the recent election at Edinburgh, when the Mar Peerage
was called in the course of caUing over the EoU, in receiving an
answer from the noble Lord (the Earl of Mar and KelUe) V
The view of the ndjle Lord who has just spoken upon that
subject I understand to be this, — that the peerage which is
called in the Eoll the Mar Peerage is not the peerage which,
according to the view of the noble Lord, has been adjudged by
this House " — the noble and learned Lord does not say reported
upon to Her Majesty — " to the Earl of Mar and KeUie, and
therefore the Earl of Mar and KeUie should not have been
allowed to answer when it was caUed. That, my Lord," said the
Lord Chancellor, " depends upon the meaning of two Eesolu
tions of your Lordships' House. I have no right to interpret
them, but T will state them for your Lordships' consideration,
and I will state also what I understand them to mean."
These two Eesolutions were, according to the noble and
learned Lord, the Eesolution of the Committee for Privileges,
reported to the House, and "adopted by the House" — any
aUusion to its being laid before the Queen, as superior judge,
being omitted, and the power of the House to act upon the
Eeport summarily, and apart from the approval of the Queen,
being taken for granted ; and, secondly, the order to the Lord
Clerk Eegister, passed in the same breath with the adoption of
the Eesolution, and already sufficiently familiar to the reader
Lord Cairns then proceeded as follows : — " Now the EoU of
Peers in Scotland is a public document, which is perfectly
well known ; and in that Eoll of Peers there is one entry, and
only one entry, of the Earl of Mar. It may be in its wrong

SECT. II. THE EAELDOM OF MAE. 279
place, or it may be in its right place — I have nothing to say
as to that. It is there, and it is only in one place, and to that
place this Eesolution must necessarUy have referred ; for there
was nothing else that it could have referred to. Therefore the
Order of your Lordships' House to the Lord Clerk Eegister is
this — that he is to caU the title of the Earl of Mar according
to its place in the Eoll of the Peers of Scotland. He has no
authority to put it in a different place ; he must call it in the
place where he finds it ; it is only found in one place : and
when he calls it, and it is answered, he is ordered to receive
and count the vote of the person who has been adjudged to be
Earl of Mar and KelUe in answer to that caU. 1 cannot my
self see that any question can really arise as to the duty of the
Lord Clerk Eegister. The Order of your Lordships' House
speaks for itself. The Lord Clerk Eegister has nothing to do
but to obey it. He is to call the title and„ receive the vote of
the proper person when he caUs it. That," concluded Lord
Cairns, " is the first question." The misfortune, I must add,
appears to me to be this — that the Earldom discovered by the
House of Lords in 1875 does not exist on the Eoll. Lord
Cairns's argument amounts to this — Because the House has
resolved that an Earldom of Mar never before heard of was
created in 1565, distinct from the ancient Earldom of Mar,
therefore the Earl of Mar on the Union EoU, which is ranked
as the ancient Earldom, long before 1565, must necessarily be
the modern Earldom and not the ancient one ; and the Union
EoU must be read in conformity with, and if necessary corrected
and construed by, the Eesolution of the House, and not vice
versd, the Eesolution by the Eoll, on the principle of priority
ot obligation. Lord Cairns is not at liberty, I submit, to leave
the question of the accuracy or inaccuracy of the EoU in a state
of doubt. If he contends that the Eesolution of the House is
right, the Union EoU must be wrong — which leads again to
the question. Which of the rival authorities is of prior obliga
tion? He is obliged to fall back on the position originaUy
taken up by Lord Eedesdale, that the decision of the House,
affirmed in the Eesolution adopted by the House, is final and
irreversible, right or wrong — a decision which in its effects,
to say nothing further here, strikes at the foundation of the
decision in favour of the Sutherland heir-general in 1771.

280 THE EAELDOM OF MAE. let. xvi.
" The second question," continued the Lord ChanceUor, " is
this — Protests were entered, as I understand" — the noble and
learned Lord having never, it would appear, seen them — " at
the recent election against the Earl of Mar and Kelhe being
allowed to answer to the caU of this peerage ; and the noble
Lord asks me, secondly. Ought not the Lord Clerk Eegister to
have returned those protests on the whole of the proceed
ings to the House of Lords in pursuance of the Statute
of the 10 and 11 of the Queen, chap. 52? That, again, de
pends upon the words of the Statute, which seem to me to be
reasonably plain. The Statute says that if at any meeting for
the election of Eepresentative Peers any person shall vote, or
claim to appear or to vote, in respect of any title of peerage on
the Eoll caUed over at such meeting, and a protest against
such vote or claim shaU be made by any two or more peers
present, whose votes shall be received and counted, the said
Lord Clerk Eegister or Clerks of Session shaU forthwith trans
mit to the Clerks of the ParUaments a certified copy of the
whole proceedings at such meeting ; and the House of Lords,
whether there shall be any case of contested election or not,
may, in such manner, and with such notice to such parties,
including the person so voting, or claimiug to appear or to vote
in respect of such title of Peerage, and the persons protesting,
as the said House shaU think fit, inquire into the matter raised
by such protest, and if they shaU see cause, order the persons
whose vote or claim has been so protested against to establish
the same before the said House ; and if he shaU not appear, or
shall f aU to establish the claim, then the House may order that
be is to be put to silence in the future. That applies, of course,"
said the Lord Chancellor, " to a case altogether different from
a case Uke the present. The meaning cannot be that the Lord
Clerk Eegister is to transmit the protests which were made on
the occasion of the recent election to this House, in order that
the Earl of Mar and Kellie may be called upon to estabUsh his
title here, because he has done that already. The House says
he has established his title ; and the meaning of the statement
cannot be that the Lord Clerk Eegister, as regards a person
vvho has established his title, is to go on transmitting protests
against that title to this House, in order that he may be called
upon to establish his title a second time. It obviously means

SECT. II, THE EAELDOM OF MAE, 281
that if there is a protest entered against any person who has
not established his title, that protest is to be sent to the House
of Lords in order that the House may call upon him to estab
lish his title in due course." I am bound to say that I think
that the Lord Chancellor's answer on this point was satisfac
tory on the common premises assumed by the question replied
to. I think, indeed, that it was rather imprudent to say or do
anything which could give the sUghtest apparent sanction to
the Act of 1847. But this I niay remark, that Lord Cairns
would not have spoken of the Act as "obviously" meaning
what he asserted it to mean in the last paragraph here cited —
placing an interpretation on the Act, and commending it to
acceptance on the ground of common sense — if he had had the
Act in its integrity before him in the Select Committee, or had
it been printed in the Appendix to the Eeport of that Com
mittee, seeing that the preamble of the Act and its context
distinctly prove that the Act was directed solely against pre
tenders to " dormant or extinct peerages," " peerages which
have been for some time dormant," — pretenders of the type of
the Annandale, Stirling, and Crawford claimants, with whom
it is impossible that Lord Mar, the nephew and next of kin of
the late Earl, can be classed, seeing that by the law of Scot
land he succeeded to the dignity de jure and de facto at the
moment of his uncle's death, and is entitled to hold and be
recognised by it till the heir-male, Lord Kellie, proves an ex
ception to the rule of succession in his own favour, which he
has not done, never having claimed the original Earldom of
Mar. " These," concluded Lord Cairns, " are the answers
which I should respectfully offer to the questions put to me ;
and I do not desire to take any further part in the discussion
which the noble Lord has raised."
Lord Blautyre followed by a few words, expressing his
conviction that " the decision of the House in the Mar Peerage
case was a very unhappy one, . . . The whole case," he ob
served, "turns upon whether Queen Mary in the year 1565
restored the. old Earldom of Mar, or whether she made a new
creation." " It is repugnant to common sense to suppose that
Queen Mary, in place of giving to the Erskine famUy that
which they possessed for twenty years, from 1435 to 1457, and
which they claimed for more than a hundred years after that,

282 THE EAELDOM OF MAE. let. xvl
that is to say, when the new trial was granted to them,"
through the inquest of 1565, " made a new creation, and gave
them a new Earldom of Mar. Upon these grounds I think
that the decision of the House was an unhappy one, and that
the Earldom is now held by the wrong person."
Lord Eedesdale spoke at great length, enforcing some of his
former arguments, and developing others in support of the
Eesolution of 1875. He said, " It appears to me an extraordi
nary thing that any peer should rise to contest the decision of
this House upon a point upon which no other body could
decide but the House ; " in further exclusion, it wiU be ob
served, of the jurisdiction of the Sovereign, which neither in
the present debate, nor in that on the Duke of Buccleuch's
Eesolution, has ever been recognised by those who maintain
Lord Kellie's right. He proceeded, " By the Act of Union with
Scotland, the Peers of Scotland are placed in precisely the same
position in all respects as the Peers of England and other
peers ; and there is certainly no privUege that the peers of this
country hold more dear to them or more important than that
this House is the sole judge as to whether they are entitled to
their honours or not." This is plain speech, and I hope my
reader will take notice of it, for Lord Eedesdale speaks out,
while others beat about the bush. The Peers of England may
flatter themselves that they possess this pri-vUege, if privUege
it be ; but the jurisdiction, as I have abundantly proved, is not
in the House of Lords by law, and consequently there can be
no such privUege for the peers of Scotland to participate in
even were they anxious to do so. It is a faUacy to confound
the right to a peerage with the privileges of that peerage,
where the right bas been ascertained in a particular person
— these are two very different things. Lord Eedesdale pro
ceeded to make a very true observation : — " None but those
who have gone into the whole case, and have investigated
the evidence that was brought forward, are really compe
tent to pronounce an opinion upon it. To pick up small
matters from other authorities, like those which were brought
before the House on that occasion, is not a fair way of dis
cussing the question." But the question is, I must remind the
reader. Through what spectacles is that evidence to be looked
at and read ? By the law of Scotland, or the private rules of

SECT. II. THE EAELDOM OF MAE. 283
the House of Lords contradictory of that law, and which the
House have virtually admitted they are incompetent to make
and apply, as possessing no power of legislation? Who are
most likely to apply the law of Scotland correctly, EngUsh
lawyers, or men like the late Mr. Maidment, Mr. Eiddell, and
that great feudal lawyer and historian. Lord Hailes, under
whose infiuence, based upon evidence which Lord Camden
confessed to be " irresistible," the House of Lords advised the
King in favour of the heir-general of Sutherland, on the ground,
inter alia, that the Earldom of Mar, existing long before the
dawn of history, was a dignity descending through females ?
Lord Eedesdale's profound and conscientious study of the
Minutes of Evidence in the Mar claim would have been produc
tive of results favourable to the heir-general but for his pre
conception of Scottish law having been derived, not from
original Scottish sources, but from the spurious code originated
in 1762 and 1771 under the auspices of Lord Hardwicke, Lord
Mansfield, and Lord Camden, and transmitted as a precious
inheritance to the House of Lords to the present day.
Lord Eedesdale then took up the question of the authority
of the Decreet of Eanking and the Union EoU. He cited,
first, the Order of the House passed on reception of the Union
Eoll, or Ust of Peers for Scotland, that it shall be entered upon
the EoU of Peers, and that a salvo should be inserted to the
effect that " the protests entered upon the records of the ParUa
ment of Scotland in relation to the precedency of Peers . . .
shaU be and are of the same force, with relation to the table of
precedency, as if they were entered upon the EoU of Peers and
in the Journals of the House of Lords." " Thereby," said Lord
Eedesdale," theHouse recognised its authority over these disputes
with regard to precedency, and that Order was acquiesced in
from the time that it was made." On the contrary, I must
protest, the House recognised the authority of the Court of
Session over these disputes, as was shown by their recognition
of that authority in the case of the Earls of Crawford and
ErroU in 1769-71, elsewhere spoken of. The protests in the
Scottish Parliament were not for remedy of law at the hands
of the Parliament, but of the Court of Session, under the pro
vision of the Decreet of Eanking in 1606, and in accordance
with the constitution of that Court by Statute in 1532. The

284 THE EAELDOM OF MAE. let, xvi,
protests at Holyrood are necessarUy to the same tribunal; the
Lord Clerk Eegister has no option but to receive and record
them in the view of their being subsequently acted upon, and
accessible in the meanwhile to all parties interested. Whether
it is equally incumbent on the Lord Clerk Eegister to trans
mit them to the House of Lords in ordinary cases, further
than as matter of courtesy, for the information of the House, I
cannot say ; although in such cases of protest as those pointed
out by the Act of 1847, it would (admitting the competency of
that Act pro argumento) be obligatory. I speak always with
diffidence when a question arises upon which I have not had
the advantage of knowing the opinion of men like Mr. Eid
dell or Mr. Maidment ; but these, my valued friends, are both
gone to a less litigious world, and I am thus deprived of their
advice and guidance. The Order spoken of by Lord Eedesdale
has undoubtedly been acquiesced in, but simply because it
was in strict accordance, as weU as the salvo spoken ofj with
the conditions of the Treaty of Union.
Lord Eedesdale proceeded to say that although " the pre
cedency has been at times interfered with, that is to say, proof
has been given of a different precedency fi'om that which
appeared upon the Union EoU, based upon the Decreet of
Eanking," yet " the House has never altered the precedency in
any of these cases, notwithstanding that by the clearest proof
the date upon the Union Eoll was shown to be wrong. It is
quite evident that it is quite as easy that a date of higher
precedency might have been granted as of a lower one. Of
course it would not invalidate the peerage, although it was
called as of a different date from that to which it was
entitled." Lord Eedesdale then cited the case of the barony of Dmg-
wall claimed by the Duke of Ormonde in 1710, and which a
Committee for PrivUeges in 1711 recognised as in the Duke,
and reported " that he ought to be placed next above Lord
Cranstoun." The effect of that was to give him a precedency
four places higher than he had claimed. "Therefore," Lord
Eedesdale argued, " the House obviously has had the power of
determining where a peer shall be placed upon the Union EoD,
and has acted accordingly." But this was a case of a peerage
not on the Union Eoll, being dormant at the time and ever

SECT. II. THE EAELDOM OF MAE. 285
since 1621, the creation having been by charter, 8th June
1609; and in ordering it to be placed on the Eoll in the place
of priority to which the evidence showed it was entitled, even
although the claimant had underestimated the position he was
entitled to, it was a very different case from that of Lord
KeUie, whose new Earldom of Mar has never been placed on
the EoU, and cannot be so placed because there is no record or
proof of its ever having existed ; while, on the contrary. Lord
Kellie has been thrust into the place of the original Earldom,
to which he makes no pretensions whatever. This Dingwall
case was an unfortunate one to bring forward. The particulars
may be seen in my Eeport of the Montrose claim, in which I
cited it in a chapter chronicUng the " gradual encroachments of
the House of Lords upon the authority of the Crown and of
the Court of Session in Scotland in peerages," the former
retracted, the latter persevered in, with continual expansion
of English principle to the consideration of Scottish peerage-
claims. I summed up the Dingwall case thus i-^" The House,
acting upon the mere strength of a casual rumour, and without
any reference from the Crown, which could alone (on English
principle) entitle them to interfere, originated of them
selves ex proprio motu, referred to a Committee for PrivUeges,
discussed and decided the case of the Scottish barony of Ding
waU as claimed by the Duke of Ormonde, and which they
ordained to be inserted in the Union EoU (having been long
dormant, ever since 1621), immediately before that of Cran
stoun  It is hardly necessary to observe that, whether viewed
by the principles of English or Scottish peerage law, this was
in pure and indefensible assumption of a sovereign power and
authority to which they were incompetent. And it would
appear . . . that at a subsequent and soberer moment they
felt that they had gone too far, for no similar instance has since
occurred." Lord Eedesdale proceeded to argue that the Commissioners
for Eanking ia 1606 had ranked the Earl of Mar in such a
manner as to show that it was their deliberate purpose not to
recognise the earldom held by Lord Mar as the original earl
dom, the date assigned to it being, not 1404 but 1457. He
referred to my Second, or Additional Protest, in which, he said,
I " stated roundly that the precedency which was aUowed by

286 THE EAELDOM OF MAE. let. xvi,
the Decreet of Eanking was a precedence of 1404 upon that
document. Now, my Lords, the precedence given was not of
1404, but of 1457. I wUl also remark that Lord Mar did not
bring before the Commissioners for the Decreet of Eankina
the charter by which the territorial comitatus of Mar had
been ratified to his ancestor by Queen Mary. He gave in
these other documents," — the charter 9th December 1404 and
the retour of 1588 — "hoping that that surrender and regrant
to Isabella would be the ground upon which his right to the
peerage would be rested. Now, my Lords, the question is,
Why was the precedency of 1457 given to the Earl of Mar by
the Commissioners ? I hold it to be a most distinct proof that
they were determined that by no act of theirs would they
recognise the existence of the ancient Earldom of Mar.
Nobody could pretend that that was the date of the ancient
Earldom of Mar, that is to say, of the Earldom held by the
last heir-male, who died in 1377. The reason why they took
that date, I believe to be that at that time there was an Earl
of Mar sitting in the Scotch ParUament. James n. of Scot
land had created one of his younger sons Earl of Mar, and
therefore there was an Earl of Mar sitting in Parliament in
1457, If any one claims under the finding of the Decreet of
Eanking, that is the Earldom of Mar to which he must make
his title good, because this is the only one which is at aU con
nected with the place on the Union Eoll." On aU which I
have to remark — 1. That Lord Eedesdale himseK, in his speech
in 1875, held that the precedency granted was from 1404, and
upon the charter 9th December 1404, but by a " fancy title."
He has changed his opinion since. But that is of Uttle con
sequence. 2. The postponement to ErroU, on which Lord Eedes
dale founds the date of 1457, is of no force, inasmuch as Erroll,
Uke Marischal and Argyle, owed his precedency to the great
hereditary office he held, as pointed out by Mr. EiddeU in his
"Peerage and Oonsistorial Law " as far back as 1842. 3. I do
not know whether Lord Eedesdale derived his information
respecting the alleged creation of John, third son of James n,,
as Earl of Mar in 1457, from Mr. Eraser Tytler's History of
Scotland ; but in that historian's able sketch of the injustice
perpetrated against the Erskines by James I. and James li.,
he concludes his account of the inquest of 1457 thus:— "It

SECT. II, THE EAELDOM OF MAE. 287
was fortunate however for the monarch that the house of
Erskine was distinguished as much by private virtue as by
hereditary loyalty ; and that, although not insensible to the
injustice with which they had been treated, they were wUling
rather to submit to the wrong than- endanger the country by
redressing it. In the meanwhile James, apparently unvisited
by compunction, settled the noble territory which he had thus
acquired upon his third son, John, whom he created Earl
of Mar." It is possible that Lord Eedesdale may have under
stood this as implying that the creation was in 1457, but it
was only in 1457 that the inquest took place through which
he acquired a right to the property ; he had only been married
in 1449, and in whatever year the birth of his third son took
place, it is impossible that he could have sat in Parliament in
1457, as affirmed by Lord Eedesdale.^ The whole of Lord
Eedesdale's argument therefore faUs to the ground.
Lord Eedesdale summed up what he had thus far said as
follows : — " The effect therefore of what has taken place is this.
The Eeport of those who gave judgment in the late case was
that the Earldom of Mar was a new creation in the time of
Queen Mary, That no other Earldom of Mar is in existence
was proved, as I say," — Lord Eedesdale here expressing his in
dividual opinion, personaUy, in recognition of the affirmation by
the House that the speeches in Committee are not judgments,
and that the speeches ia 1875 were not final to the eflect of ex
tinguishing the original dignity — " was proved, I say, by the
extinction of the ancient earldom for 500 years, during which
time no representative of it ever appeared in any place in Par
liament whatever. The entry therefore of the Earldom of Mar
inthe Decreet of Eanldng of 1457 was an erroneous entry."
(The reader wUl refer, perhaps, to my proof in Letter vil, supra}
that the earldom was ranked in its proper relative place as
second among the earldoms whose place was governed by simple
antiquity of creation, Sutherland having produced earlier evi
dence of antiquity than Mar.) " Everybody, whichever way he
voted, will hold that that was not the proper place in which the
Earldom of Mar should be put," viz., under 1457. " There is no
doubt that the Earl of Mar in James vi.'s time desired to make
good his claim to the ancient earldom, and he put in these docu-
' See note supra, p. 81. ^ Page 79.

288 THB EAELDOM OF MAE. ¦ let. xvi.
ments in order to maintain that claim, and kept back other
documents, which might perhaps have induced the Commis
sioners, if they had been before them, to give him the other date
of creation, namely, the same year in which the Comitatus had
been restored to him," viz., 1565. All this I have answered
in former pages of these Letters.
" Now, my Lords," proceeded the noble Lord, " if every peer
is to determine whether a judgment of this House is right or
not, and to act upon his own ideas as to whether the judgment
is right or not with regard to a matter of this kind, confusion of
the most unfortunate character must necessarUy ensue. The
decision of the House is that the person claiming to be Earl
of Mar is certainly in the wrong place on the Union Eoll,
because they have found the time when they hold that that
earldom was created," i.e. 1565; "but if the peers indivi
dually are allowed to come forward and say, ' We do not ap
prove the decision of the House in this matter, and we shall go
on disputing and protesting,' of course there wUl be nothing
but confusion henceforth in the elections of Peers for Scotland."
Lord Eedesdale then reverted to the Duke of Buccleuch's
Eesolution : — " I think, my Lords, that there was great reason
for the motion that was made by the noble Duke, of having an
alteration in the date of that peerage upon the EoU. At the
same time there is no doubt that if we once begin to make
alterations in the Union EoU, there are so many errors in it
that the claims that would be made for an alteration of prece
dence would be such as would give the greatest possible trouble
and inconvenience to the House. Therefore it may be desirable
to allow a peerage to be called in the wrong place rather
than to take the trouble of altering that place." In this Lord
Eedesdale overlooked the opinion of the law Lords in the
debate upon the Duke's Eesolution, that the House has no
power to make changes upon the Union EoU, and that it would
be ultra vires to attempt it. I have elsewhere shown that no
such alteration can be made legally except by the Court of
Session, under the provisions of the Decreet of Eanking of 1606,
Lord Eedesdale concluded by contrasting "the full inquiries
which have been carried out by this House upon the subject
of the Mar case, with the inquiry by the Commissioners of 1606,
" completed " as the Decreet of Eanking was " with regard to

sect, il THE EAELDOM OF MAE. 289
the whole ofthe Scotch Peerage in a very short space of time —
about a year, I think, and it was framed entirely upon what
ever documents the peers themselves might think fit to bring
forward. " My Lords," Lord Eedesdale concluded, " having taken part
in the judgment upon the Mar Peerage case, and having in
quired into the matter very much since, and found out these
points which I have just mentioned with regard to the fixing
of places by the Decreet of Eanking, I have thought it my
duty to state to your Lordships what, upon fuU consideration,
I conceived was the reason for placing the Earldom of Mar
where it was placed in the Decreet of Eanking. If the Com
missioners had taken any vacant time when there was no Earl
of Mar in ParUament, it might have been said that it was the
old earldom, because no other earldom existed at the time ; but
they did not do this. They, purposely as it appears to me, took
a time when there was an Earl of Mar in Parliament, and they
fixed that as the date of the earldom; and if anybody has a
claim to the earldom as placed in the Decreet of Eanking, and
now on the Union Eoll, he must claim the earldom which was
granted by King Janies ii. of Scotland to one of his younger
sons; and that is an earldom whicb became extinct in 1475."
This conclusion, I need scarcely observe. Lord Eedesdale's final
conclusion, is different from that arrived at by Lord Cairns and
the Select Committee, which admits the possibility of tbe con
tinued existence of the ancient earldom in the person of the
heir-general — a possibiUty negatived by Lord Eedesdale, but on
grounds — the aUeged sitting of an Earl of Mar in Parliament,
not of the Erskine blood, in 1457 — which will not stand the
test of historical scrutiny.
The Earl of Galloway, in reply to Lord Eedesdale, took ex
ception to his treatment of the Decreet of Eanking, and vindi
cated the fact that the Earldom of Mar was ranked by the
Commis,sioners of 1606, and upon the evidence of documents
still extant, " with a precedence of more than a century before
Queen Mary's time." He then passed to a more important
point, viz., " that this House really was not competent to decide
this question." The suggestion was met by an "Oh! oh!" —
and Lord GaUoway proceeded, " Yes, my Lords ! I see that my
noble friend at the table (Lord Eedesdale) is greatly surprised.
VOL. II. T

290 THE EAELDOM OF MAE. let. xvi.
He condemns the Decreet of Eanking ; he says that the Decreet
of Eanking is nothing — he says that this House has power to
alter any title it chooses. Well, my Lords, I say, according to
the terms of the Act of Union, that is not the case. It was de
clared by that Treaty of Union in 1707 that a judgment of the
Court of Session in the year 1626 was to be final and unalter
able," — or, to express this more categorically, that the privUeges
of the Court of Session, as delivering final judgment without
appeal to King or Parliament, and the rights of Scottish sub
jects under the laws of the country being reserved inviolable hy
the Treaty, the Decreet of the Court of Session, Mar contra
Elphinstone in 1626, was thus final and unalterable. Therefore,
my Lords, I say that with regard to any question which was
tried and decided by the Court of Session before the Act of
Union, it is not competent for your Lordships' House to reverse
that decision now." Nothing can be more correct than this.
" But," proceeded Lord Galloway, " as was pointed out by
my noble and learned friend on the woolsack,'' i.e. in his speech
on the Duke of Buccleuch's motion, "Your Lordships' House has
never given a judgment upon this question. What it has given
is not a judgment ; for it is not a judicial proceeding ; it is merely
an opinion. My noble friend at the table " (Lord Eedesdale)
" shakes his head at that. I will state to him what was said by
the noble and learned Lord on the woolsack, and what was said
also by tbe late Lord Chelmsford in the year 1876 in this
House. What was said by those two noble and learned Lords
was this, ' The opinion of a Committee of PrivUeges is not a
judgment.' Those are the noble and learned Lords' own words.
It was pointed out by my noble and learned friend on the
woolsack that it was merely a 'Eeport,' — that is the term
which he used — it is a ' Eeport ' of the Comnnttee of Privileges
to your Lordships' House. The Eeport was adopted ; but still,
I say, it was not a judicial proceeding — it was not brought
before the House of Lords as a judicial court — it was only a
Committee of Privileges. I may be in error " — the noble Lord
was not in error — " but, as I understand it, properly speaking,
the Eesolution should have been submitted to the Sovereign
of these realms for her gracious Majesty's approval. In the
case of honours I believe that to be the proper course. But
in this case, I am afraid, there was very great and unneces-

SECT, II. THE EAELDOM OF MAE. 291
sary hurry; and, for some reason which has never yet been
explained, the Eesolution was immediately sent off to Edin
burgh, without an opportunity being afforded for its being shown
to the Sovereign of these realms first. I believe, my Lords,
that that was a most irregular proceeding.
" My Lords," continued Lord Galloway, " I say that this
was not a judgment, but merely a Eeport, and that it was not
by the terms of the Act of Union competent to your Lordships'
House to reverse a decision which had already been adjudged
previous to the Union of the two countries. ... As the noble
Lord " (Lord Eedesdale) " has gone on so far into the details of
this matter, I should like him to be kind enough to listen to
what the judgment of the Court of Session in 1626 was. The
Court of Session declared formally" (I should not myself
have used the words so unqualifiedly, because the declarator
proceeded upon the formal attestation to that effect by Mary
Queen of Scots in 1565, and by the Act of Parliament in 1587,
but this comes to the same thing in reality), — " The Court of
Session declared formally that the ancient Earldom of Mar was
still in existence, descendible through female succession to
heirs-general, — that the heirs bad been temporarily deprived
through Ulegal seizure and usurpation in 1457 ; but that these
wrongs were redressed in 1565 by Queen Mary, whose charter
restored to the heirs of the said Countess Isabel and their
heirs-general hereditarily the ancient earldom, and which charter
includecl the dignities, because " — Lord GaUoway added, with
perfect correctness, " patents of honour, independently of lands
were unknown till many years afterwards. That," continued
the noble Earl, " I am sure my noble friend will admit?" But
this fond expectation was met by a decided " Not even that !"
from Lord Eedesdale. Lord Galloway then in few words
traced the succession of the ancient earldom down to the
reversal of the attainder in 1824 in favour of the heir-general,
succeeding (although, accidentally I may say, the heir-male
likewise), exclusively through his mother as heir-of-line of the
attainted Earl ; and he caUed attention to the fact that " in the
Eesolution of 1875 — your Lordships' House carefully abstained
from the remotest allusion to the ancient Earldom of Mar on
the Eoll, regarding which there was no claim before your Lord
ships' House "— a most just distinction, — observing incidentally

292 THE EAELDOM OF MAE. let. xvi.
that it could not have been otherwise, " because, as I have said,
the case had already been decided by the Court of Session
before the Act of Union." In this perhaps the noble Lord gave
more credit for discrimination to the Committee for PrivUeges
than could be justly claimed by them.
Lord Galloway then adverted to a possible belief on the
part of noble Lords " who were ignorant of the law affect
ing Scottish peerages, that it is necessary for Lord Mar, who
succeeded his uncle, and who at present is entitled to the
dignity, to claim his right before your Lordships' House. But
that," he proceeded, " is not the case. A Scottish peer is not
required to do that. . . . The present Lord Mar was served
heir to his uncle, and tbat is all that a Scottish peer is required
to do in order to succeed to a title of dignity enjoyed by his
predecessors," — liable of course, it must be stated, in Lord
Mar's as in any similar case, to proof of an exception in Lord
Kellie's favour as collateral heir-male against the heir-general,
the omos lying on Lord Kellie to claim and allege proof in sup
port of such exception. Lord Mar being in fuU and unchaUenge-
able possession till such proof is estabUshed conformably with
the law of Scotland. " Any other course," continued Lord GaUo
way, " would not only be unusual and unnecessary — it would be
contrary to Scottish usage. Scottish usage is treated with con
tempt by my noble friend at the table, I have no doubt, — stUl we
had that law in Scotland before the Union," — and he might have
added, " have it now." " My Lords, I say that by the law of
the land, on the death of a Scottish peer or peeress, his or her
title passes de jiorc sanguinis to the next heir ; and it rests with
an opponent to upset the pedigree or to prove a different line of
succession to the peerage, if possible," — i.e. according to the
law and presumption of the Scottish law of succession, which
Lord Galloway thus founded upon with perfect correctness.
Lord Galloway then observing that all the protests that had
been lodged at Holyrood were against Lord Kellie, and not one
against Lord Mar, Lord Kellie interposed that he had himself
protested at every election ; to which Lord Galloway replied that
he had not been aware of it, although confessing he " should
have been inclined to make him an exception." But " my noble
friend," he continued, " has ventured to get up and has answered
to a title which your Lordships have named, and that he has

SECT. u. THE EAELDOM OF MAE. 293
not got." These words, apparently indistinctly heard by the
shorthand writers, raised cries of " No, no ! " " Hear, hear ! " " It
is a fact," persisted Lord GaUoway. " Does my friend at the
table " — addressing Lord Eedesdale — " venture to say that the
House found that my noble friend near me (Lord Kellie) is
entitled to a peerage which upon the Union Eoll is put above
the Earl of Eothes in 1457 ? Not one of the noble Lords says
so." " I merely say," Lord Eedesdale answered, " that he " (i.e.
Lord Mar) " has not proved his right ; and no one can prove
his right to the title of Mar which was in existence in 1457,
because it is not in existence now," — Lord Eedesdale thus tak
ing his stand on his new view that the only possible claim would
be to the earldom held by John Stewart, third son of James ii.>
who died without issue, and not to the ancient Earldom of Mar,
which, according to Lord Eedesdale, became extinct in 1377.
" Of course," rejoined Lord Galloway, " if my noble friend says
it is not in existence, I suppose there is no disputing it, be
cause" — he proceeded, in a playful allusion to a former part of
his speech, in which he had represented Lord Eedesdale
as speaking of what took place before the Commissioners of
Eanking in 1606, as if he had been a contemporary and eye
witness — " he has already informed us that he was living in
1606, when the Decreet of Eanking was framed, . . . what
was done at the time, and . . . what we ought to do now."
After reminding the House of Lord Mansfield's speech in
1877, testifying to the manner in which Scottish Peers suc
ceeded to their dignities. Lord Galloway concluded by caUing the
attention of the House to the fact that the Eesolution of 1875,
recognising a new peerage of 1565 in Lord KeUie, " never said
one word about the ancient peerage on the Eoll, — therefore
that peerage remains intact at the present moment." He re -
marked on the force of the word " restituere " employed by
Queen Mary in the charter of 1565 as appUed to the dignity,
and, on Lord Eedesdale's interpretation that the charter only
carried the " comitatus " or fief, and not the title, rejoined, " the
comitatus always carried the dignity," refraining however from
troubling their Lordships further upon that question.
" I am sure," Lord GaUoway added, as he sat down, " that
aU your Lordships must remember that in your childhood you
have in your copy-books, written in large hand, over and over

294 THB EARLDOM OF MAE. let. xvi.
again, ' Be just before you are generous.' Now, my Lords,
my noble friend near me " (Lord Kellie) " certainly cannot
complain of any want of generosity at your Lordships' hands.
I ask no generosity at your hands for the rightful heir, for him
who has succeeded to the peerage . of the late Lord Mar.
I say I do not ask any generosity for him ; but, my Lords, I do
implore you to give him justice."
Lord Selborne then rose and expressed his views with liis
usual precision — views so important as the final expression of his
opinion upon the main point which underUes the Mar question,
views of a character so fatal to the rights and interests of the
Peerage of Scotland, if not of the entire Scottish nation, that 1
shaU give them verbatim, with the slightest possible comment
on their secondary matter, but reserving the noble and learned
Lord's main proposition for distinct remonstrance at the con
clusion. The reader wiU judge whether he was entitled to
adopt the tone of superior authority and stern admonition
which distinguish his utterances from those of Lord Cairns.
" My Lords,'' he began, " I reaUy hope that this discussion
will be brought to a close. (Hear, hear !) It seems to me to
proceed upon a forgetfulness of that which we aU know ; and
that is, that even this House is obUged to pay respect to the law.
Now, with regard to claims to Scottish peerages, the law, as 1
understand it — and it is Statute law, and ia that respect it rests
upon higher ground than the law wlUch relates to EngUsh claims
of peerage, — is, that claims to Scottish peerages are to be inves
tigated in a certain manner, not by a debate iu this House, but
in the manner which we all know is usual ; and the decisions so
arrived at have the force of Statute law.'' This is the proposi
tion which I reserve for examination at the close of this report.
It is impossible to imagine a more important one. It is
now laid down by one of the highest legal authorities in the
House of Lords that whereas claims to English peerages are
preferred and adjudicated upon in a certain manner which dis
tinguishes such claims as a class apart, claims to Scottish peer
ages are, without exception, subject by Statute law to the deter-
nunation of the House of Lords, exclusively, and that the de
cisions of the House have the force of Statute law, and must be
submitted to as such, there being no appeal, no room for remon
strance, from or against such adjudication. As a Scottish peer

SECT, II, THE EAELDOM OF MAE. 295
and Scottish subject, and knowing something ofthe law of Scot
land affecting peerages, I protest against this affirmation of the
noble and learned Lord at the outset. But to proceed, —
" I own, my Lords, that I think that if the noble Earl at
the table (Lord Eedesdale) had contented himself with saying
that," viz,, that the House is by Statute law the sole judge in
Scottish dignities, and that its decisions on such have the force
of Statute law, " he would have done more wisely than by
endeavouring to establish the soundness of the reasons upon
which the decision upon the Mar Peerage case in the year
1875 proceeded. If these reasons are brought again into the
region of discussion, it is but natural that opinions should differ
upon them. But tbe truth is, we have no business at all to go
into any such discussion. The House has decided, and that
which it has decided is law. That decision is, that a certain
Peerage of Mar was created by Queen Mary, and that it belongs
to the noble Earl opposite. , To that extent the whole House is
bound." Whether Lord Eedesdale adheres to the doctrine of
the noble and learned Lord, or not, I cannot say ; but unless I
heard it from himself I cannot believe it. Lord Eedesdale has
far too much experience of claims and knowledge of the relative
law to acquiesce in such propositions.
" And for my own part," continued Lord Selborne, " I take
the same view of the construction of the Order" (26th Feb
ruary 1875) "referring to the duty of the Lord Clerk Eegister,
which is taken by my noble and learned friend on the wool
sack; that is to say, that when the House said that the
peerage was to be called as it stands upon the Union Eoll, the
Lord Clerk Eegister has done nothing wrong in taking the
Union EoU as he found it, and, if there is only one Earl of Mar
there, in treating that, for the present at all events, as the
proper place for the Peerage which the House has declared
to belong to the noble Earl opposite.
" I do not understand that the House has decided anything
whatever, affirmatively or negatively, with regard to the ancient
Earldom of Mar. What was said in the Committee of Privi
leges about it is a wholly different thing from a Eesolution of
this House. The Eesolution of this House simply was in the
affirmative, that the noble Earl opposite had established his
right to the Peerage of Earl of Mar created by Queen j\Iary in

296 THE EAELDOM OF MAE. let. xvi.
a certain year. This House did not say that the old Earldom
of Mar was extinct ; and it did not say that it would refuse to
entertain a claim, if a claim should ever be brought forward by
any person undertaking to prove that he was entitled to that
old earldom. That question, I say, has never been decided by
the House," — thus, it will be observed, completely vindicating
the repeated remonstrances of Lord Mar and his friends, that
he has never been a claimant. " Last year, or the year before,
when a petition was presented by the noble Earl opposite upon
this subject, and a Committee was appointed by this House to
consider the question so raised, that Committee pointed out
that if any person thought fit at any election of Eepresentative
Peers for Scotland to claim an Earldom of Mar in addition to
that created by Queen Mary, — that is to say, to claim the
older earldom " — that is, strictly speaking, to claim to vote as
tenant of the original earldom — " and if that claim was ob
jected to in a certain manner by two peers, the proceedings
must then be reported to the House, and the House could,
according to the particular procedure prescribed by the Statute
which has been quoted" — i.e- the Act of 1847, although Lord
Selborne had not expressly cited it in the former part of his
speech — "call upon the claimant whose vote was objected to
to establish his claim, and then he would be entitled to produce
any evidence in his power in support of that claim. It has not
been at all determined how far that evidence would or would
not be the same as the evidence which was produced on the
former occasion ; or how far it would or would not be open to
a future Committee of Privileses to take different views from
that which was taken in the year 1875."
The noble and learned Lord concluded as follows, again
addressing himself to Lord Eedesdale : — " My Lords, I cannot
but observe, in conclusion, that I hope my noble friend at the
table will take to heart the lesson of these proceedings. It was
only this day last week that my noble friend himself asked
your Lordships as a deliberative assembly to review various
proceedings in the courts of law and elsewhere resulting in a
legal judgment found upon an award. He asked for the
appointment of a Committee to inquire into that award, and
into all the proceedings and aU the circumstances connected
with it, which had taken place ten years ago, I believe. My

sECi'. II. THE EAELDOM OF MAE. 297
noble friend thought that tha.t was a proper matter, after these
judicial determinations, to be brought into debate in your
Lordships' House, in which each person would, to use the
expression he has just used, ' pick up his information where
and how he could.' My Lords, if that is to be done, and if
your Lordships are not bound to regard legal determinations of
courts of law, you cannot possibly prevent the same rule
being applied to the determinations of your Lordships' House ;
and it appears to me that it is at least as fit a subject for this
House to inquire into, whether a proper decision was arrived
at in the year 1875 upon the Mar Peerage case, as to enter
upon such an inquiry as the noble Earl at the table himself
proposed a few days ago."
The Earl of Stair added a few words as follows : — " I feel
very anxious that the Eoll of the Peers of Scotland should be
accepted as it was fixed at the time of the Union. By this
proceeding, which we are just now discussing, that Order has
been altered ; and that will lead, I think, to a great many dis
putes hereafter. I was present at the last election at Holyrood
of Eepresentative Peers for Scotland, and I was one of those
who protested. I think that the Protest, which was signed by
other noble Lords as well as by myself, ought to have been
taken some notice of. When the Earl of Mar's name was
caUed out as it stood upon the Union Eoll, it was answered by
my noble friend opposite. It seemed a very extraordinary
thing to me that he should answer to it, seeing that he only
holds a title, according to the Eesolution of your Lordships'
House, dating from the year 1565. I do thinlc that under the
circumstances the Protest signed by myself and other noble
Lords also should have been taken more notice of"
Lord Huntly concluded the debate by repeating one of his
questions, which the noble and learned Lord, the Lord Chan
cellor, had not answered, — " I refer to my question as to the
Peerage being under attaint." The Lord Chancellor repUed
that if Lord Huntly would give him notice of the question he
would endeavour to answer it. '' I answered," said Lord
Cairns, " the two questions of which the noble Lord gave me
notice, and I really do not know what the third is." The dis
cussion then ceased.
The reader -will at once perceive that everything in this

298 THE EAELDOM OF MAE. let. xvi,
debate, interesting as it is throughout, sinks into insignifi
cance in the presence of the statement made by Lord Selborne,
under the responsibility of his great learning and authority, as
to the conditions under which claims to Scottish dignities come
before the House of Lords.
The statement is, in u word, this, that such claims by
Statute law — in distinction from the law which regulates
claims to English peerages — fall to be investigated and decided -
upon exclusively by the House of Lords " in the manner which
we all know is usual," and that the decisions pronounced by
the House have the force of Statute law.
I venture to think that this statement of the law — abso
lutely novel and astounding as it is to Scottish ears— must
have escaped the distinguished lawyer who has pronounced it
through an imperfect appreciation of the fundamental rights of
the question. It is expressed with such unhesitating con
fidence, such crushing severity, that I am compelled to point
out that the dictum of the noble and learned Lord is purely
asseverative, without reference to authority or proof for the
facts asserted, and thus the more likely to influence all who,
like myself, hold Lord Selborne's character and authority m
respect. Briefly, then, I must protest, first, that, so far as I am
aware, there is no statutory authority for the subordination of
the right to Scottish peerages to the exclusive jurisdiction of
the House of Lords ; secondly, that no such subordination could
possibly have been carried out by ParUament except in viola
tion of the Treaty of Union, unless upon grounds proved to be
for the manifest benefit of the people of Scotland ; and, thirdly,
that no such subordination can be possibly carried out in the
future except under conditions tantamount to a revolution.
In a word, I submit a precise negative to Lord Selborne s
general proposition as a.bove set forth. The rationes of my
dissent are grounded on proofs already given in these pages :—
1. The jurisdiction in claims to Scottish dignities, vested by
Statute in the Court of Session, is protected by the terms
of the Treaty of Union, and cannot be taken away ex
cept by Statute of the Imperial Parliament, proceeding ou
proof that such deprivation would be of the manifest
benefit contemplated by the Act of Union. No side-wind,
no partial action by one of the Houses of Parliament,
no act even of the Sovereign, can have such effect.

&

sect. II. THE EAELDOM OF MAE. 299
2. The jurisdiction in Scottish dignities, being vested by
Statute in the Court of Session, and the Sovereign being
precluded, likewise by Statute, from resuming the juris
diction from the Court, claimants in petitioniag the
Sovereign for recognition of their rights to dignities
seek that recognition, not in the form of a judicial
decision, but of an award as from an arbiter, in terms
of a tacit but understood compact that the award shall
be in terms of the law of Scotland, as elsewhere ex
plained. If that condition of the compact be violated,
the original right of resort to the Court of Session is
still open, as, according to Lord Chief-Justice Holt, it
equally is in the case of claims to English dignities.
The Sovereign therefore, possessing no jurisdiction in
Scottish peerages, cannot impart or delegate that juris
diction to the House of Lords ; and as the House of
Lords has no original jurisdiction, the only statutory
jurisdiction in Scottish dignities remains vested in the
Court of Session.
3. No Statute has ever been passed depriving the Court of
Session of the jurisdiction, or bestowing it on the
Sovereign or on the House of Lords. Such a Statute
would have the effect of creating a court for adjudicat
ing upon Scottish claims of first and last instance with
out appeal, such as the advisers of the House of Lords
in recent debates affirm the House at this present
moment to be, although without the slightest authority
for saying so ; whereas it has been the pride of the
British Themis, both north and south of the Tweed,
that no cause can be finally determined without appeal
by one and the same Court, or one and the same division
of a Court, so as to preclude redress in case of error.
4. The suggestion remains, that Lord Selborne's affirmation
may be based upon the Act of 1847, elsewhere dis
cussed, — and an expression in his speech inclines me to
think it is so. But if this be the fact. Lord Selborne
has fallen into an error more sweeping and grave, but
simUar in kind to that which the Select Committee feU
into in 1877, through overlooking the conditions of the
Act. I have shown that the Act only appUes to the

300 THE EAELDOM OF MAE. let, xvi.
case of pretenders to peerages dormant or extinct, or for
some time dormant, claiming to vote at the elections at
Holyrood ; and that the provision for protest by two or
more peers for the purpose of bringing the claims of
such pretenders to scrutiay before the House of Lords
does not apply to the peers of Scotland actually in
possession, that is, to the entire peerage, as assumed hy
Lord Selborne, and most certainly does not profess to sub
ject their rights to the adjudication of the House, irre
spectively of the Sovereign and of the usage of petition
ing the Crown for awards upon petitions for recognition,
to say nothing of the prior and superior rights of the
Court of Session. I have already remarked that, from
whatever cause, not only is the Act of 1847 omitted m
the Appendix to the Eeport of the Select Committee,
but the provisions of the Act are founded upon in the
Eeport of the Committee without any citation of the
preamble ; and a totaUy erroneous construction has thus
been impressed upon the Statute. I have further shown
that the Act itself is deficient in the essentials of con
stitutional legislation. I know of no other authority
for Lord Selborne's affirmation that the House possesses
jurisdiction over Scottish peera.ges by Statute, and that
the decisions of the House have the force of Statute law;
and, the case being as I have shown, I can see no reason
for withholding the expression of my conviction that
the whole of that affirmation f aUs to the ground,
5. Lastly, as proximately affecting the case of Lord Mar, 1
repeat that, even were the jurisdiction absolutely hi
the House of Lords by Statute, as stated by Lord
Selborne, Lord Mar's right as tenant of the ancient
Earldom of Mar has not been legally affected by any
thing that has taken place in the House of Lords,
inasmuch as — 1. The House being bound by the re
peated acknowledgment of its leading advisers to
advise the Crown by Scottish law, and the private rules
of the House identified with the memory of Lord Mans
field and Lord Camden, and upon which the Eeport m
favour of Lord KeUie went, being in point-blank
opposition to Scottish law, the Eesolution of 1876

SECT, II, THE EAELDOM OF MAE, 30i
crumbles into dust, and the Order by which Lord
KeUie has been intruded into Lord Mar's seat and right
to vote at Holyrood, and which was founded upon the
Eeport in question, sinks to the earth along with it,
and remains a Uf eless trunk encumbering the ground, and
yet exhaling poison from its decaying limbs. And, 2.
Even had the House the jurisdiction to its fuUest ex
tent, as affirmed by Lord Selborne, it could not have
affirmed Lord KeUie's right in usurpation of that of Lord
Mar, inasmuch as the entire question has been res
judicata by the Court of Session since the ruling
decreet of 1626.
I confess to a difficulty in reconciUng Lord Selborne's
qnaUfication of the manner of proceeding in Scottish peerage
cases, which he affirms to be ordained by Statute law, the juris
diction vested in the House of Lords, and the decisions having
the force of Statutes, as " the manner which we know is usual "
to prove Scottish peerage claims, and which Lord Chelmsford
so clearly laid down in the Wiltes case in 1862, in words else
where quoted — that " usual" course proceeding on petition to the
Sovereign, reference to the House for opinion and advice, and
final award by the Sovereign. If the procedure were as the
noble and learned Lord represents it, why clo we petition the
Sovereign, and not the House of Lords ? The theory is in
point-blank opposition to the " usual " procedure, the practice
which Lord Selborne assumes to be the working out of that
theory. On the other hand, the distinction drawn by Lord Selborne
between claims to Scottish and claims to English dignities,
based, as I presume, on the assumption that there is no statu
tory ascription of the jurisdiction to the House of Lords in
Enghsh cases — is correct as matter of fact, but in a different
sense from that in which Lord Selborne aUeges it. Claims to
English peerages have always been considered more or less
under the jurisdiction of the Sovereign, who never delegated
that jurisdiction to the Courts of law, as the Scottish kings did
to the Court of Session. According to Lord Selborne's view
the peers of Scotland are in a state of comparative degradation,
their rights adjudged upon by the House exclusively, ^vhile
Lnglish peerages depend on the supreme judgment of the

302 THE EAELDOM OF MAE. let. xvi.
Sovereign ; whereas this would be a violation of the Treaty
of Union, by which Scottish peers are declared to possess all
the rights and privUeges of EngUsh peers and peers of Great
Britain, except that of sitting in Parliament, Lord Chief-
Justice Holt indeed recognises no such privilege, and indicates
protection and redress for English claimants through the courts
of law, in the same manner as the law of Scotland does for
Scottish claimants through the provisions and in the manner
above indicated.
Fortunately, I may here conclude, the views I have thus
remonstrated against are those only of Lord Selborne — a host,
perhaps, in himself, but which cannot boast of the exphcit
sanction of the Eeport of the Select Committee, as adopted by
the House of Lords. As previously remarked, the omission
of aU acknowledgment of the ultimate jurisdiction of the
Sovereign throughout the recent debates is very significant,
and the unguarded assumption of supreme power by Lord
Eedesdale and Lord Selborne may well have led the latter
noble and learned Lord to the conclusion he has apparently
arrived at. But these conclusions — to the effect that claims
to Scottish dignities are subordinate to the House of Lords
by Statute law, and that the decisions of the House are final
and irreversible, and have the force of Statute law, as in the
case of Mar — are simply Lord Selborne'.s opinion, dicta, but
to be tested by facts and law, and by no means invested
with the authority attaching to the dicta of Lord Cairns and
Lord Selborne himself in the debate upon the Duke of
Buccleuch's motion, after those dicta had been embodied in
the Eeport of the Select Committee, and that Eeport had been
adopted by the House of Lords.

Section III.
Election of IGth April 1880.
The last incident in the Mar controversy up to the present
time has been the proceedings at the recent general election on
the 16th AprU 1880.
The Lord Clerk Eegister commenced the proceedings by
reverting to the question of protests and counter-protests,

SECT. 111.

THE EAELDOM OF MAE. 303

which had been left undetermined at the last election. "It
would be in their Lordships' recollection that at the last elec
tion he had said that this question would come under the con
sideration of those who were interested in the preparation of
the Minutes of the Peers' elections. It was quite clear that on
the one hand to enter the barest possible record that protests
had been received from such and such a noble Lord was not
sufficient, and that, on the other hand, to write out protests in
fuU, especially protests of very great length and fuU of historical
argument, would, in a very great degree, intercept the Minutes
in a form that would be singularly inconvenient. Between these
two courses there seemed, however, a third, which they had
adopted. The Minutes of the last election, as their Lordships
would see, contained not only the fact of certain protests and
counter-protests having been made, but also the main substance
and purport of them. At the same time care had been taken
that all protests should lie on the table ; and therefore they
were as accessible to every peer as if they had been entered
ad longum in the Minutes, and not only so, but should they be
required for any purpose in the House of Lords, they were at
once at hand to be sent up, as well as the actual formal
Minutes. On examining the Minutes of last election, it would
be seen that it was a mistake to suppose that the protests
of certain noble Lords in connection with a special case had
not been as fully as possible recorded, and also transmitted to
the House of Peers." I am bound to say that I think that, while
this full report of Protests in the Minutes of proceedings would
he the preferable course in the interest of the public, the inter
mediate course adopted has the merit of being in accordance
with precedents, as for example, in the Minutes of the proceed
ings of 1726, and other proceedings connected with Protests
for precedency. On the summons of the Earl of Mar, Mr.
Keir, advocate, presented protests by the Marquess of Huntly,
by the Earls of Erroll, Morton, Galloway, and Stair, by Viscount
Arbuthnot, and by Lord Blautyre, objecting to tbe reception of
the vote of the Earl of Kellie as Earl of Mar, and protesting
that the vote of the heir-general should not be rejected if ten
dered as Earl of Mar. I myself protested in terms of my
two former Protests. This was followed by a Protest by the
Earl of Carnwath against the vote of Lord Kellie being accepted

304 THE EAELDOM OF MAE. let. xvi.
in right of the dignity of Mar, " if such is based on a
decision of the Committee of Privileges of the House of Lords
in virtue of a creation of 1565 — no such creation being recorded,
or trace in any way found on the said Eoll of Scotch Peers at
the time of the Union, nor any power given by the terms of
Union to the Sovereign or the House of Lords to add to or to
remodel in any way the Eoll, as then accepted and ever since
acted upon." The Hon. G. Waldegrave-Leslie, husband of the
Countess of Eothes in her own right, then protested in objection
to the vote of the Earl of KeUie, answering to the Earldom of
Mar entered on the Union Eoll "as of the year 1457," "inas
much as the said title of Earl of Mar of 1457 is entered on the
said Union EoU immediately before the title of Earl of Eothes
of 1457 ; and also, inasmuch as the said Earl of Mar of 1565,
and Earl of Kellie of 1619, does not assume, nor claim, and
has never assumed nor claimed, neither is he entitled to assume
or claim, the title of the Earldom of Mar of 1457, but has only
assumed, and is only entitled to assume, the title of the Earl of
Mar of 1565, as awarded to him by a Eesolution of the Com
mittee of Privileges of the House of Lords pronounced jn the
year 1875, and also to the title of the Earl of KelUe of 1619,"
Lord Napier then protested to the same effect as the noble
Lords already mentioned, on the following gi-ounds :— " 1,
Because it is contrary to reason and precedent that an earl
dom ruled by the Committee of Privileges m the House of
Lords to have been created in the year 1565, should be
called and responded to in the order of a more ancient earldom
dating from the year 1457 ; 2. Because the calling of the more
recent title in the order of the older one tends to confound the
earldom of Mar which has been lately discovered to exist, with
the ancient Earldom familiar to the Peerage and liistory of
Scotland ; 3. Because the answering of the Earl of Mar and
Kellie to tho title of Earl of Mar in the old order tends to
obscure and prejudice the claim of John Francis Goodeve
Erskine to the old Earldom, a claim heretofore recognised in
the election of EepresentatiA-e Peers for Scotland, and which it
is believed may yet be established before a Committee of
Privileges in the House of Lords ; 4. Because the answer of the
Earl of Mar and Kellie in the order of the older title is dero
gatory to the dignity and precedency of those Earls whose titles

SECT. III. THE EAELDOM OF MAE. 305
are antecedent to the date 1565, but whose titles are called
after a title bearing that date."
Lord Saltoun then rose, and said — I give his speech, and
those that follow, from the report in the Scotsman of the I7th
AprU 1880: — "That on the occasion of the last election he
protested against a Protest then made by the Earl of Crawford
and Balcarres, and he considered it to be again his duty to
make a Counter-protest — which he [had] intended to make
only against the protest of the Earl of Galloway — against the
protests of all the noble Lords, because he had been unaware
that there were so many other protests all pointing in the
same direction, and most of them couched in exactly the same
words as that of the Earl of GaUoway. He did not think they
were competent to enter upon the reasons and upon the details
of a question concerning the Earldom of Mar. There could be
no doubt that all these different protests went very much
upon the part (point ?) of the House of Lords having said that
the Earldom of Mar held by the Earl of Kellie was created in
1565. He did not himself think that this was of the slightest
importance. What reason the Committee of PrivUeges of the
House of Lords had for saying that the earldom was created
in 1565 he did not know. It might be that they intended to
express that it was of new creation, or it might be for some
other reason; but he did not think there was necessity to
inquire into the matter. He did not think it was a thing of
the least importance. The fact remained, that, on the 25th
February 1875, the highest court in the realm, the court which
was the only one which could adjudicate in their Peerage ques
tions, resolved and adjudged that the Eight Hon. Walter
Henry, the Earl of KeUie, ' hath made out his claim to the
honour and dignity of the Earldom of Mar in the Peerage of
Scotland '" — the noble Lord omitting the final words, " created
in 1565," evidently through considering them, as he had pre
viously stated, of no importance. I do not pause to comment
on the identification of the House of Lords in its capacity of
a Committee of inquiry selected by the Sovereign for advice in
the particular matter of Lord KeUie's Petition, with the House
of Lords, as " the highest Court in the realm," invested with
positive and constitutional judicial functions which only attach
to the House in that character. The inference based upon
vol. II. u

306 THE EAELDOM OF MAE. let. xvi,
this identification will appear immediately. "No person,"
continued Lord Saltoun, " could suppose that the Earldom of
Mar that was there mentioned by the House of Lords" (i.e. in the
Eesolution just quoted) " could be any other Earldom of Mar
than that which stood on the Union EoU of Scotland, The
plain sense of the Order of the House of Lords" (the Order
of the 26th February 1875) "was that the Earl of Kellie be
admitted to the Earldom of ilar that stood in (on ?) the Union
Eoll, and be allowed all the privileges connected with it. In
that case, these protests directed against the Earl of Mar and
KelUe, were directed against the authority of the Queen and
the House of Lords, and as such they had no business to receive
them. It was not their business, it was not their duty, and it
was beyond their privUeges ; it was ultra vires of their authority
to discuss the question on that occasion. They were absolutely
forbidden to discuss any question of that sort by the terms
of the Act of Union ; they had met simply for the election of
Peers ; and they were bound to obey the decrees of the Queen
and of the highest Court of the realm," (If Lord Saltoun, I
may interpose, had been conversant with the records of the
debates of the Peers of Scotland at their meetings at Holyrood
in earlier times, such as those of 1721, mentioned some pages
back, he could not have spoken thus. At the same time Lord
Saltoun was right in the position that the Peers assembled at
Holyrood have no call to discuss the merits of protests ; their
duty, or that rather of the Lord Clerk Eegister, is to receive
them, and record them for future discussion, when their appeal
for remedy of law at fitting time and place— that place not
being the palace of Holyrood — may be properly entered into
before the competent tribunal,) " If," continued Lord Saltoun,
" there was another Peerage of Mar " — the reader wUl perceive
the slow but sure progress of truth, creeping like a snail, but
steadily towards the mark — " if there was an older Peerage,
and if the old territorial Peerage of Mar did not come to an
end in 1377, then Mr. Goodeve Erskine could claim that Peer
age, and could go before the House of Lords and there estabhsh
his claim ; and the House of Lords would order this claim to
be received, and to be acknowledged. He thought, as he had
said, that the protests were founded upon a mistaken idea of
what their duties were, and he therefore made a Counter-pro-

sect. 111. THE EAELDOM OF MAE, 307
test against them." Lord Saltoun concluded by reading a formal
Protest embodying the opinions expressed in his speech. I
need not repeat what I have elsewhere said, that, while noble
Lords are at full liberty to comment on protests, such as those
here in question, always within the bounds of courtesy, these
protests are not submitted either to them or to the House of
Lords, but to the legal tribunal appointed by the law and the
constitution for remedy of justice in such cases as those remon
strated against.
Lord Balfour of Burleigh intimated that he adhered to the
protest of Lord Saltoun,
The Earl of GaUoway then said " that as his name had been
brought forward by Lord Saltoun, he hoped he would be allowed
to say a few words. He must, first of all, say that he was quite
unprepared for this Counter-protest. He would remind their
Lordships that upon a recent occasion when assembled in that
place some discussion had arisen upon this same case ; and that,
after it had been debated from one point of view,, tbe noble
Lord at the head of the table " (the Duke of Buccleuch) " had
advised them not to discuss the merits of the question at all.
On that occasion therefore he had declined to discuss the ques
tion, and he entirely agreed with his Lordship on that point, for
he did not think that the proper place for such a discussion was
that in which they had assembled. He even agreed with Lord
Saltoun in thinking that it was ultra vires to discuss such a
question ; but notwithstanding that, he had again entered into
some discussion of the subject. (Hear, hear !) That, he thought,
was a very great mistake ; and it was one in which he would
not foUow the noble Lord. The place for such a question to
come up was the House of Lords ; and, as for himself, he cer
tainly intended that it should be discussed there. (Hear, hear !)"
The difficulty, I would remark, is that the legal authorities of
the House of Lords resist all attempts at discussion by Lord
Saltoun's argument of " Sic volo sic jubeo," and reprove even
Lord Eedesdale when he fairly and honestly vindicates the
rationes of his action. I do not hold that a discussion is ultra
'Vires at Holyrood : there is nothing in the Act of Union to
prohibit it. The peers have never ia practice, at least in later
days, considered themselves precluded from discussion, even
when attempts were made by the Government to cajole

303 THE EAELDOM OF MAE. let. xvi,
them or dictate to them. I think, on the other hand, that
discussion is inexpedient, and that it is better to leave pro
tests and counter-protests to speak for themselves to the
country at the present moment, and to the Supreme Civil
Court in the future. Lord Galloway proceeded, " At the same
time he must decline to let it go forth undisputed that the
question of this Peerage had been brought before the House of
Lords as the supremest court in the realm. The case, in fact,
bad not been brought before the House of Lords as a Court of
Appeal — as the highest Court of AppeaL That would have been
quite a different thing. The case had merely been adjudicated
upon by the Committee of Pri-dleges. He would cite to them
the opinion of the present Lord ChanceUor (Cairns), as weU as
that of the late Lord ChanceUor (Chelmsford), both of whom
had most distinctly stated that the decision in question was not
a judgment of the House of Lords, but a mere opinion," — not,
it will be remarked, upon the Mar Eesolution speciaUy, but
in the case of Eesolutions generally, with special bearing on the
claim to the honour of Annandale in 1876. Lord GaUoway
further remarked " that when the Earl of KelUe asked the House
of Lords to alter his title, to which this Committee of Privi
leges found he had a right, as from the year 1565 — when he
asked that that title should be removed from the old place on
the Union EoU, a century or more preceding, the House of
Lords declined to do so. On the contrary, they appointed a
[Special] Committee, of which Lord Cairns was chairman ; and
that Committee specially advised the House that there should
be no change made upon the Union EoU. He was sorry," he
added, " that he had detained them, but he could only say that
he protested against Lord Saltoun stating that it was not in
the power of the Peers to accept the Protest. (Hear, hear !) "
The Marquess of Lothian agreed with Lord GaUoway "that
the case was not one to discuss at that time. With reference,"
he continued, " to what the Earl of Galloway had said— that
the question had riot been decided by the ultimate Court— that
was to say, the House of Lords sitting as a Court of Appeal-
he must demur to that statement. The words used in the
judgment were ' resolved and adjudged.' How they could go
beyond that he could not see." This, of course, was a mere

sect. III. THE EAELDOM OF MAE. 309
oversight of the fact that the Sovereign is the judge, and not
the House, and that by the acknowledgment of the House itself,
the Eesolutions on peerage claims, although prefaced by the
formal words " resolved and adjudged," are not judgments, but
simply opinions submitted as advice to the Sovereign, who is
not bound to act upon them, as stated by Lord Chelmsford
himseff in the WUtes speech, in accordance with familiar rule
and law. Lord Lothian further appears to think, if his words
are correctly reported, that the House of Lords acts as a Court
of Appeal in Scottish peerage claims. The Marquess of Lothian
then proceeded — very much to Lord Galloway's astonishment
— to endeavour to make him personally participant in and re
sponsible for the action of the House of Lords. " It was pretty
evident," he said, " that the noble Earl was one of those who
in the House of Lords had agreed to this Eesolution and judg
ment ; and he was now entering a protest against that to which
he had assented." " I was not present on the occasion," ex
claimed Lord GaUoway, " and knew nothing of it." But Lord
Lothian "observed that, being a member of the House of Lords,
his Lordship was art and part of what had been done." A
laugh followed upon Lord Galloway's disclaimer ; but whether
this attack was a joke (as it might be considered south of the
Tweed), or advanced in grim earnest, must remain undeter
mined. " In reference," continued the noble Marquess, " to
what had fallen from Lord Saltoun, he would simply adhere to
what had been said, that the Protest be not received. The Act
of 1847 was expUcit on this point." I confess to having found
nothing on the subject on this point ; the reader can refer back
to it — " and therefore, until the case came before the House of
Lords — which it would possibly do, judging from what they had
heard " (referring here, I presume, to Lord GaUoway's remark)
" it was not possible for the Lord Clerk Eegister to receive the
vote of any claimant to the title. He hoped that the Lord
Clerk Eegister would not in future allow such unseemly pro
ceedings as they had witnessed to take place." This final
observation, echoed from Lord Eedesdale's censure in the House
of Lords, reminds one of the wolf that muddled the water, and
then complained of the lamb — rather a tough morsel in the
present instance.

310 THE EAELDOM OF MAE. let xvi.
Lord Galloway then repeated " that he must demur to being
told that he had been present on the occasion to which refer
ence had been made. This judgment, or what the Lord Chan
cellors " (Cairns and Chelmsford) " themselves caUed an opinion,
was given on the 25th February 1875, and was sent down to"
the Lord Clerk Eegister " on the 26th February 1875 ; and
therefore how it was possible for him or any other peer to take
part in the question he could not see."
Lord Elphinstone then rose and said that " he had intended
to make an appeal to the noble Earl " (the Earl of GaUoway)
" to withdraw his Protest, but after the intention he had
expressed, he (Lord Elphinstone) would not persist in the
course he had proposed. It was evident that the noble Lord,
and other noble Lords, were not fuUy aware of the actual effect
of the words made use of," — I presume " resolved and adjudged."
" He did not mean to repeat the House of Lords' decision, — he
would merely refer to another Court — if he might so caU it—
that of the Sovereign herself. Some of those present might
not be aware that Mr. Goodeve Erskine in 1868 was presented
at Court under the style and title of the Earl of Mar. In
1875, however, a letter was sent by the Lord Chamberlain— of
which he held a certified copy — notifying to the Earl of Mar
aud KeUie that, in consequence of the decision of the House of
Lords, Mr. Goodeve Erskine's presentation had become null
and void. Therefore, here they had the Sovereign herself
refusing to recognise Mr. Goodeve Erskine as Earl of Mar." I
defer comment tiU the close of Lord Elphinstone's address.
" Another Court, which might be called the Supreme Coiut of
dignities and honours — the College of Arms iu London — had
also pronounced an opiiUon on the subject. On the 24th
August 1876, Mr. Goodeve Erskine -wrote to the Secretary for
the Home Department, claiming precedence for his sisters as
Earl's daughters. That letter had been referred to the Lyon
King-at-Arms, who had replied that there was no ground for
entertaining the claim.^ No further action had been taken on
the matter; and therefore they had the decisions of Her
' Lord Elphinstone must have been misinformed as to the opinion
expressed by Lyon, -n'hich w.as exactly to the opjiosite effect. See supra,
Letter I. vol. i. p. 1 3.

SECT. IU. THE EAELDOM OF AIAE. 311
Majesty and the College of Arms in addition to that of the
House of Lords, refusing to recognise the claim to the Earldom.
He thought that the noble Earl '' (Lord GaUoway) " should
reaUy have taken this matter into consideration before signing
his Protest." It does not appear from the report that any
"hear, hear!" or audible expression of feeling betrayed the
sentiments of the noble Lords who listened to the allegations
and arguments thus set forth. Anything more calculated to
create an unfavourable impression beyond the audience to
which they were addressed cannot be imagined, and I shaU
therefore interrupt the narrative of the discussion by a comment
for which, however fuU, I will not offer an apolog}^ In the
first place, neither the House of Lords, the CoUege of Arms in
London, the Lyon Office in Edinburgh, nor the Sovereign him
self, is a competent Court in a question of dignity where there
has not only been no claim to the dignity, but the tenant of
the dignity whose right is objected to, as in the case of Lord
Mar, has succeeded jure sanguinis by the law of Scotland to
his predecessor in the dignity, and has no caU to establish his
right before the House of Lords or any other tribunal. What
the CoUege of Arms in London has to do with a Scottish
peerage I am at a loss to conceive ; and, although the Lyon
Office in Edinburgh would be a far more suitable tribunal than
the House of Lords, and the opinion of the Lord Lyon, judi
ciaUy pronounced on legal reference, must always carry great
weight, the office has never been intrusted with the decision
upon claims to dignities ; and if such were referred to it, there
would be an appeal to the Court of Session. Under such
circumstances I should prefer resorting to the fountain-head.
The argument from the action of the Lord Chamberlain ta
canceUing Lord Mar's presentation at Court, as testified by an
autograph letter addressed, as we are informed — a very singular
circumstance — to Lord Kellie, cannot be considered, as Lord
Elphinstone considers it, of a judicial character ; nor can Her
Majesty's name and authority be appealed to as founded upon
action taken by that functionary. The Sovereign (I prefer
this abstract or impersonal designation) only acts as arbiter or
quasi-judge in a Scottish peerage-claim when it is brought
before him by petition, the claimant selecting that process of

312 THE EAELDOM OF MAE. let. xvi.
recognition preferably to the legal course before the Court of
Session. But the Sovereign has no power of interference in
regard to dignities of which the tenant is in possession by law
— ^which is Lord Mar's case. While, moreover, the reception
at Court was in due course after Lord Mar's accession to his
uncle's earldom, it is obvious that the cancellation of that
reception took place — it would appear from the Lord Chamber
lain's letter — at the instance of Lord KeUie — under the im
pression generaUy entertained tUl the debate on the Duke of
Buccleuch's Eesolution that the Eesolution of the 25th Feb
ruary 1875 declared the original earldom extinct at the same
time that it recognised the new earldom stated to have been
conferred in 1565. The House of Lords have siace repudiated
that construction, that impression ; and the cancellation in
question, which proceeded upon that construction and impres
sion, must now be admitted to have been a hasty and impru
dent step, which ought to be retraced, precisely as the Order
ofthe 26th February 1875, proceeding on the same erroneous
basis, ought to be rescinded. Lord Elphinstone's argument for
the canceUation is therefore built upon a foundation of sand.^
The same observations apply to the refusal of the rank of
Earl's daughters to Lord Mar's sisters — at least in principle;
for it is in the option of the Sovereign to concede such rank or
to withhold it at his pleasure. It is usuaUy conceded in such
cases of succession ; and the refusal can only be imputed under
the circimistances to the same misapprehension which induced
the cancellation. It will be remembered that, but for the
private rules of the House of Lords which that House has now
virtually abjured as void of legislative sanction, the Scottish
law of succession would have been respected, and "Mr
Goodeve Erskine" recognised without a dissenting voice as
Earl of Mar, notwithstanding any claim that Lord Kellie
might have made to a modern Earldom of Mar. Such being
the case, nothing but gross demerit would have justified the
1 To bring in the Queen's name in respect to the act of her Lord
Chamberlain appears to me the reverse of decorous. It should be added that
Lord Kellie's request was not acceded to to the extent of formally cancelling
the presentation through the Gazette, the only -way in whioh a presentation
once made can be validly cancelled. See Letter i. vol. i..p. 13.

SECT. III. THE EAELDOM OF MAE. 313
action of the Court official in cancelling Lord Mar's presenta
tion under sanction of the Sovereign ; and the perpetration of
that exclusion is thus as severe and unjust a social stigma as
the refusal to accept his vote as Earl of Mar is an unjust and
unconstitutional political wrong.
The Duke of Buccleuch wound up the discussion by a few
words, as follows : — " He should not," he said, " have spoken,
but for the extraordinary statement that had been made by his
friend " (the Earl of Galloway) " to the effect that this decision
of the House of Lords was merely an opinion, and not a judg
ment. Any one who knew anything of business matters knew
that when such a claim was made and referred to the House
of Lords, that body, in order to the due despatch of business,
remitted the matter to the Committee of Privileges. That
Committee was an open one ; the only restriction, indeed,
placed upon it was that there should be a minimum of fifteen
members present before it could proceed to business. Besides,
noble Lords learned in the law were always called upon to
attend its decisions. They heard counsel, and, if he recollected
aright, on this particular occasion the case lasted a very con
siderable time, so that if his noble friend had wished it, he
could have sat through the whole of the weary hours the Com
mittee had spent upon the case. The Committee, however,
presented to the House of Lords what they considered to be
their opinion on the case ; and the House, agreeing with that
opmion, ordered and adjudicated thereon. Now, his friend
had left out the word ' adjudged.' (Hear, hear !) It ordered
the Clerk of Parliaments to transmit to the Lord Clerk Eegister
of Scotland such Eesolution and judgment. He only said this
because there seemed to be a misunderstanding as to what
reaUy did take place." I have no wish to prolong this report
by dweUing on the noble Duke's description of the Committees
for PrivUeges and such minor matters ; but this I must repeat,
that the words "resolved and adjudged" are merely formal in
the presence of the higher and controlling obligation which
compels us to recognise the " Eesolutions " of the Committee
adopted by the House as mere opinions, not judgments, re
ported to the Sovereign for his consideration and independent
action, as by the testimony of Lord Chelmsford in the WUtes

314 THB EAELDOM OF MAE. let, xti:'
case, and of Lord Chelmsford and Lord Cairns in the Annan
dale, to call no further witnesses ; and, further, that the ques
tion is not, whether the House ordered the Clerk of the Parha-
nients to transmit the Eesolution and the Order of the 26th
February 1875 to the Lord Clerk Eegister, which is a mere
matter of fact, but whether what took place was legal or
illegal, within or beyond the power of the House of Lords,
acting thus when functus officio, independently of, and before
the approval of the Sovereign. The " misunderstanding " re
marked upon by the Duke of Buccleuch was not on the side of
Lord Galloway or Lord Mar's other friends. The noble Duke
ended, I am happy to add, with his natural consideration for
justice : — " If the ancient Earldom of Mar stUl existed, and
could be proved to exist, no person would be more glad than
he himself of the circumstance ; but they aU knew that this
was not the orily case of an ancient peerage which had con
tinued to the present day, both in England and Scotland, in
which the same title existed, but where the original peerage
did not exist. At all events, the present claim had been de
cided by the House of Lords, and they (the Peers) could not
decide or hear it ; and they should only be wasting their time
by further discussing the matter. He hoped, therefore, that
they would now proceed to the business which had caUed them
together." The Lord Clerk Eegister then said " that the answer
he had to give was that the vote of the Earl of Mar and
Kellie would be received in accordance with the terms of the
instructions from the House of Lords," — that is, of the Order
of the 26th February 1875, still hovering Uke a phantom,
although a very substantial one, over the grave of the miscon
ception, viz., that the Eesolution declared the original earldom
to be extinct, which the House of Lords itself repudiated in
the debate upon the Duke of Buccleuch's Eesolution, and sub
sequently. " The protests," the Lord Clerk Eegister added,
" would be received and treated in the manner he had
described." The proceedings then terminated so far as the Mar case was
concerned.

SECT. HI. THE EAELDOM OF MAE. 315
I need not, I think, make any further remarks upon the
incidents which form the subject of the three sections of this
Letter. They may have tended to assist the development of
public opinion ; but, as I before observed, no change has taken
place in the broad features of the case as between Lord Mar
and the House of Lords. I have only to note with gratifica
tion the accession of Lord GaUoway and Lord Blautyre to the
side of those who struggle for the maintenance of the law of
Scotland and the inviolabiUty of the Treaty of Union, as bound
up with the rights of Lord Mar and the integrity and security of
tbe Peerage of Scotland, as against the modern innovations and
the unauthorised and now practicaUy repudiated doctrines of
the House of Lords since 1762 and 1771, on which more than
one ancient Scottish peerage has made shipwreck, while others
have only escaped it by a miracle.
I. may enumerate, in conclusion, the Scottish Peers who,
on broader or narrower grounds, have protested in the interests
of justice for remedy of law, at fitting time and place, against
the Eesolution of the House of Lords and the Order addressed
by the House to the Lord Clerk Eegister of the 26th February
1875, since the fulmination of the latter mandate — if indeed
the word can be applied to what is in law but a brutum fulmen,
however effective for the moment in tbe triumph of illegality.
Their names are as follows, given in the order of the Union
Roll: — The Marquess of Huntly; the Earls of Crawford,
Erroll, Eothes (as by the Hon. George Waldegrave-Leslie,
husband of the Countess of Eothes in her own right), Mor
ton, CassUUs (Marquess of Ailsa), Caithness, GaUoway,
Carnwath, and Stair ; the Viscounts Stormont (Earl of Mans
field) and Arbuthnot ; and Lords Strathallan, Blautyre, and
Napier — as against Lords Saltoun and Balfour of Burleigh,
counter-protesters, supported by the verbal advocacy at Holy-
rood of the Duke of Buccleuch, the Marquess of Lothian, and
Lord Elphinstone. I have no knowledge of the views of the
other Scottish Peers ; but I look for many adhesions yet to fol
low. Meanwhile, the fifteen Peers above specified — as balanced
by the counter-protests of Lords Saltoun and Balfour of Bur
leigh— constitute a phalanx, small indeed, but strong in the
assertion of legal right and in the invincibility of truth, which

316 THE EAELDOM OF MAE. let. xvi.
the hosts of Darius cannot look upon with indifference or
unconcern.^ 1 In the indication given in the closing section of Letter i. of the
subjects to be taken up, it is said that this sixteenth Letter is to deal -with
"the latest incidents in the controversy, including the rescission of the
obnoxious Order of 1875 by the House of Lords in (June) 1880." The
absence of any allusion to any event later than April 1880 is accounted for
¦by the fact that the introductory Letter had those finishing touches of the
author which the later part of the work did not receive. In the Appendix
No. V. will be found, reprinted from Hansard, the debate of 14th June
1880, in which Lord GaUoway's Resolution, here referred to, waa carried ;
and also the debate of 2Ist June 1880, where it wih be seen that that
Resolution failed of effect, through a technical oversight, and the step which
had been taken in a right direction was again retraced.

LET.xviL THE EAELDOM OF MAE. 317

LETTEE XVIL
CHARGES AGAINST MYSELF.
I PAUSE at this point — between the latest scenes in the
drama as exhibited in the preceding Letter, and the considera
tion of what may be the remedy for the injustice to which
Lord Mar and the Peers of Scotland are at present subjected
— for the purpose of completing my personal vindication
against the charges which, it may be remembered, were ad
vanced in Lord KelUe's Address against my competency to
intervene bj' protest in this matter, and my consistency and
impartiaUty in such intervention. In noticing these charges
in the opening Letter of this series, I distinguished them as
resolving into two categories. The first of these categories
imputed blame to me for protesting and for endeavouring to
induce other Peers to protest against the interests of justice —
suggested distrust of my guidance as an " amateur lawyer " — and
charged me with holding the decisions of the House of Lords
in contempt. I answered these imputations in the course of
that opening Letter. They did not appear to me of a very
grievous character. But the second category included charges
of a graver complexion — that, viz., of inconsistency in argu
ment as suited the interest of the moment, and of prejudice
and partiality rendering me unfit to be trusted in this matter,
because I myself stand in the position of an unsuccessful and
disappomted claimant of a Scottish dignity before the House of
Lords, and have expressed myself strongly against the justice
of their decision — the inference from which is that my inter
ference by protest on behalf of Lord Mar is to be viewed with
correspondent suspicion. I felt that these latter imputations
were of a serious nature, and could not be dealt with like the
former ; and I therefore reserved my response to them for that

318 THE EAELDOM OF MAE. let. xvii.
moment in the future when the full vindication of my two
Protests, by the evidence and proof which I was prepared to
produce in support of their several rationes, shall have provided
the materials for such response, and enabled me to meet the
charges with brevity and point, and not less to Lord Mar's
advantage (so far as my Protests may have done good service)
than to my sense of what is due to myself. That moment has
now arrived, and I will endeavour to fulfil my engagement
with candour and temper ; and I hope to disperse any linger
ing prejudice which may attach in the mind of the reader
either to the merits of my argument or to my own character
for fair dealing and honesty.
A writer generally persuades himself that he has some
claim on the continuous attention of his reader ; but if this he
conceded to me by any friendly critic in the present instance,
I may requite the concession by absolving h*im from the obh-
gation of reading any more of the ensuing Letter, provided
only he credit myself and the argument he has toUed through
in the preceding pages with the reverse of the discredit which
I have in these pages endeavoured to dissipate. He can thus
pass at once to the next and concluding Letter of the series.
1. Lord KelUe's charge of inconsistency in argument, as
circumstances vary, is expressed as foUows — and it wUl be
seen that various statements are intermixed which require
distinct rectification: — "An action was brought in 1706 by
the Earl of Sutherland to reduce the precedency given to the
Earl of Crawford over his dignity; and, iu defending that
action, Lord Crawford's ancestor argued strongly tn favour of
the presumption of male descent in peerages, and the judgment
of the Court of Session was in favour of his argument, and in
direct contradiction to the present Lord Crawford's contention
that the rule and presumption is in favour of heirs-general.
He, iu his own person, furnishes a proof of his inconsistency.
In theory he is in favour of female succession, but in practice
he excludes them for males in his own earldom and barony ;
and in the Montrose case he wished to construe a remainder
' hajredibus suis' in favour of heirs-male." Lord KeUie further
adds, that '' Lord Crawford's startling statement in his Addi
tional Protest, tbat a ' Eesolution of the Committee for Privi-

LET. xvii. THE EAELDOM OF MAE. 319
leges, although confirmed by the House of Lords and approved
by Her Majesty, is inoperative, and must be held null and void,'
together with the general contempt with which he treats deci
sions of the House, would actually lead to the supposition that
his own dignity depended on the authority of some much
higher tribunal. It is, however, a fact that he holds his
peerage of Crawford in virtue of a decision of that House, and
in virtue of that alone ; and that the judgment in the Crawford
case in 1848 was in direct opposition to the law as laid down by
the Court of Session in the Oliphant case, part of the judgment
in which case Lord Crawford has quoted for another purpose.
There is no patent of the ancient peerage of Crawford in exist
ence; and that dignity was held to the exclusion of heirs-
female, from its creation in 1 3 98 till it was inherited by Ludo vie
Earl of Crawford in the reign of King Charles i. It is not my
intention to controvert Lord Crawford's right to his dignity, or
to criticise the decision of the House of Lords in that case,
when his father claimed it after it had been dormant for forty
years. It is, however, fortunate for Lord Crawford that a
tribunal exists which has authority to decide peerage cases,
and which does not consider the law laid down by the Court
of Session infaUible." My reply is this : —
i. That even were the Lord Crawford of 1706 my ancestor,
which he was not — but the representative of the younger
and interpolated house of the Lords Lindsay of the Byres,
which became extinct in the direct line in 1808 — I
cannot see how his having founded on a plea in law
which I denounce as unfounded can infer inconsistency
in myself This is the most extraordinary view of the
transmissibility of hereditary responsibility which I
ever heard of. The then Earl of Crawford and Lindsay
undoubtedly urged the heterodox doctrine, founded on
the Lombard law, in favour of the exclusive right of the
heir-male, in order to prove that Elizabeth, the Suther
land heiress in 1514, was not Countess of Sutherland in
her own right, and that her husband Adam Gordon,
who figures as Earl of Sutherland afterwards, must have
been created so by a lost patent, the presumption in
regard to which must have been in favour of heirs-male
of the body, — Crawford's inference being, on this

320 THB EAELDOM OF MAE. let. xvii.
particular point of his argument, that the Sutherland
creation must be referred to 1514, and that he was
therefore entitled to the precedency awarded to him by
the Decreet of Eanking of 1606. The rule and pre
sumption thus founded on by Crawford was precisely
that affirmed by Lords Hardwicke and Mansfield in
the Cassillis claim in 1762, "anxiously adhered to," as
Lord Loughborough said in 1797, " ever since," and upon
which the House of Lords have grounded their opinion,
or " decision," in Lord KeUie's favour recently. But
although the Court of Session delivered their interlocutor
in Crawford's favour, sustaining his defence both on the
argument above stated and on the ground of prescriptive
right, their determination was not (as Lord Mansfield
imagined and stated in 1762, and as Lord Kelhe
affirms sup7'a) a "judgment" in the sense of a final
judgment, upon which " extract " proceeded, but was
expressly worded so as to leave the cause liable to be
re-opened by Sutherland at his pleasure — as Sutherland
actuaUy did in 1746, as already stated. That the
Lords of Session in 1706 fuUy recognised the abstract
law of succession as asserted throughout these present
Letters, and as specially laid down by the OUphant
decision in 1633, is clear from the judgment in the
Lovat case, in absence of the heir-male, and thus not
final, which proceeded on the ordinary rale and pre
sumption of law in favour of the heir-female, in 1702,
only four years previously. The Lords subsequently,
partibus comparentihus, recognised the right of the heir-
male, Simon Lord Lovat, on the exception to the normal
rule and presumption, in 1730, as elsewhere shown.
ii. But, while repudiating aU responsibility for the pleadings
of 1706, so far as Crawford's plea for the exclusive pre
ference of heirs-male is concerned, I admit that were it
true that I, or my father, had maintained in 1848 that
the Earldom of Crawford and Lordship of Lindsay pr
cxcellentiam were descendible to heirs-male exclusively
(and necessarUy, or Lord Kellie's aUegation is devoid
of point, on the above presumption in favour of such
heirs), while, at the same time, I urged in 1875 and

LET. xvii. THE EAELDOM OF MAE. 321
.since, that by the Oliphant decision of 1633 and the law
of Scotland, the presumption is in favour of heirs-
general, and thus in favour of the Earl of Mar — then
Lord KeUie would establish a very gxave imputation
of wUful inconsistency against me. But Lord Kellie
entirely overlooks the exception in favour of heirs-male,
reserved by the Oliphant decision and by the law of
Scotland against the general rule and presumption in
favour of heirs-general, when a provision in favour of
heirs-male can be estabUshed, and which I have suffi
ciently proved by testimony in the second Letter supra.
That the Earldom of Crawford and Lordship of Lindsay
feU under that exception is estabUshed not only by the
fact that they both repeatedly passed over the lineal
heir-female to pass to the collateral heir-male, but by
tbe fact that the investitures of the house of Crawford
i.e. the entails of the property which descended with the
dignities, were exclusively to heirs-male whatsoever — a
consideration of great weight in Scotthsh law, and upon
which, as I have shown elsewhere, the final decision in
the Lovat case in 1730 proceeded. In absolute contrast
to Crawford, the Earldom of Sutherland has descended
throughout under the abstract rule and presumption
affirmed by the OUphant decision to heirs-general ; so has
the Earldom of Mar under the same rule, or rather law
of succession, — there is no difference so far between the
two cases. But whenever the lineal heirship devolved
(as it did over and over again) on a female in the
Crawford case, the exception asserted itself against the
presumption in favour of the heir-general, as recognised
by the saving words in the OUphant decision, and by
the usual tenor of tbe law, to which those words gave
expression. It is clear, therefore, that Lord Kellie's
words — " he (Lord Crawford) in bis own person furnishes
a proof of his inconsistency ; in theory he is in favour
of female succession, but in practice " it is different, —
have no venom in their sting, — the English of the sug
gestion being that I blow hot and cold as it suits my
purpose, and am precluded from denying Lord Kellie's
right because I vindicate my own on the contrary
VOL. u, ' X

322 THE EARLDOM OF MAE, let, xvii,
contention. I have been perfectly consistent from
beginning to end.
iii. From what I have above shown. Lord KeUie is equally
in error in representing the House of Lords as havino
" decided in favour of my father in the Crawford claim "
in direct opposition to the law as laid down in the
Oliphant case ;— their report was fully justified by the
exception to the general rule therein expressed— of
which Lord KelUe, it will be observed, takes no notice
whatever — but which exception per contra has not been
established by Lord Kellie in regard to the Earldom of
Mar.
iv. StiU less is Lord KeUie justified Ui inferring and found
ing upon the inference that the House of Lords " does
not consider the law laid down by the Court of Session,"
i.e. in the Oliphant case, " infalUble," or they would not
have reported in the Crawford case as they did, that
report being " in direct opposition to the law " as so laid
down. Lord KelUe in tlUs observation pronounces the
strongest possible condemnation of the House of Lords
that words can convey, in the assertion that they con
sidered themselves at liberty to disregard the law of the
land as laid down in a solemn and final judgment of the
Court of Session, acted upon too by the King subse
quently, and to decide the Crawford case m opposition
to it. They did no such thing in that particular case,
although they did so in the CassiUis and many subse
quent claims. It is not I, but Lord Kellie, that thus
necessarUy, from the point of Scottish law, attacks the
House of Lords. On the other hand, if in the recent
Mar case the House, following the tradition of 1763,
did, as in 1771 and 1797, disregard the law laid down
in the OUphant case, inverting the rule and presumption
of law in favour of the heir-male and against the heir-
general, apd throwing the burden of proof on the latter;
and if they similarly overruled the final judgment pro
nounced on the merits of the Mar case by the Court of
Session in 1626, then, accorduig to Lord KelUe, they did
not in 1875 " consider the law laid down by the Court
of Session infallible," as they were bound to do by the

let, xvii, THE EAELDOM OF MAE. 323
repeated acknowledgment of the obligation incumbent
upon them to report according to the law of Scotland,
and under the provisions of the Treaty of Union.
There is no such great difference, it seems, between
herd KeUie and myself as to the fact that the House of
Lords consider themselves at liberty to overrule and set
aside the final Decreets of the Court of Session. I do
not think he has benefited his own case by this
admission,
V. There is yet one further instance aUeged by Lord Kellie
in support of his charge of inconsistency, — it is, that " in
the Montrose case " I " wished to construe a remainder
' hseredibus suis " in favour of heirs-male." Such words
as " wish " and " desire " (remarked on in a former page)
import a personal element into a purely legal discussion,
which (as in the former case) I merely notice in order
to dismiss. My reply is, that there is no inconsistency
imputable to me in the respect alleged. The Umitation
of the Dukedom of Montrose created in 1488 was to
the grantee, the Earl of Crawford, " et hseredibus suis."
So was that of the Earldom of Glencairn, created ten
days after the Dukedom. If there is one principle more
famUiar than another in Scottish law, it is that " heirs "
is a flexible term, governable by attendant circumstances.
Erskine's authority may suffice here : — " Though by the
word ' heirs ' in the most proper signification, the heir-
at-law is understood, it is certain that that general term
has not always one fixed signification, but varies accord
ing to the nature of the subject, or of the security, or
other circumstances." The " heirs " of the house of
Crawford referred to in the Montrose charter of 1488 —
heirs alike to the dignities and fiefs — were the heirs
under the investiture.'^, viz., heirs-male whatsoever, in
total exclusion of females. To give a recent illustration
of the principle, — a litigation having arisen regarding the
Crawford succession ih 1748 and afterwards, when John
the t-wentieth Earl of Crawford (known as the " gaUant
earl ") had in that year granted a trust-bond of his landed
property to Mr. George Eoss, by the terms of whicli the
latter became bound eventually to denude in favour of

324 THE EAELDOM OF MAE. let. xm.
the said Earl John and his " heirs " simply — it became
a question, on the death of Earl John without issue,
whether the benefit of this obligation devolved to Lady
Mary Lindsay (by marriage CampbeU), his sister and
heir of line, or to George, fourth Viscount Garnock, his
distant collateral heir-male, who thereupon became
twenty-first Earl of Crawford ; and it was decided, after
long litigation before the Court of Session, on the 28th
January 1791, that the term "heirs" could only mean
heirs-male, inasmuch as the estates, by the last regulating
Crawford settlement and investitures in 1648 and 1670,
stood in the person of the above Earl John to heirs-male,
including the said Earl George— under which character
he. Earl George, accordingly succeeded to them. The
operation of the same rule is constantly iUustrated m
the Crawford family in the case of " nova fenda" granted
to the Earls before and after the grant of the Dukedom
with the limitation " hseredibus suis," which passed over
the heirs-female, as a matter of course, to vest in the heirs
under the standing investiture, viz., heirs-male whatso
ever. By the terms of the charter ofthe Dukedom itself,
it was not an ordinary creation, but a transmutation of
the title of Earl into that of Duke, on the ground that
whereas the Earls of Crawford had hitherto enjoyed the
famUy fiefs " titulo comitatus," it was the King's plea
sure that they should hold them henceforward by their
higher title of duke — " duces appellari." Part of the
very property granted with the dukedom (according to
time-honoured usage) for its special support, and m-
eluded under the general limitation " hferedibus suis,"
was actually held by the Duke under previous investi
tures, especially the great Crawford entail of 1421, to
heirs-male whatsoever ; and this part — consisting of an
annual revenue of forty marks out of the great customs
of Montrose — was not resigned previously to the charter
of the Dukedom, so as to enable the King to alter the
destination. According to Lord KelUe's criticism, tliis
would have descended, along with the entire Crawford
patrimou)', converted into a dukedom, and with the
additional fiefs conferred by the charter, to " haeredibus,"

LET. XVU. THE EAELDOM Of MAE. 325
or " heirs-female." But Erskine once more has explained
the principle which took effect in this Montrose case : —
" In every case where there has been an antecedent des
tination of a subject, limiting the succession to a parti
cular order of heirs, the word ' heir ' or ' heir whatso
ever' in all posterior settlements of that subject must be
understood, not of the heirs-at-law, but of the heir of
the former investiture." Hence, the forty marks from
the Montrose customs being limited to heirs-male in the
entaU of 1421, the flexible term "heirs" in the subse
quent Montrose conveyance must denote heirs-male, so
far as the forty marks included in the general grant of
the Montrose customs are concerned — the said forty
marks, as premised, not having been resigned. On the
contrary view, the Crown would have granted, away to
the heirs of line what stood already granted to the heir-
male — which would have been unjust in the first in
stance, and ultra vires of the Crown in the second, from
the complete want of a resignation. I could add more,
but this is enough surely, on this Montrose sub
ject. Again, when the direct representation of the Earls
of Glencairn ended in an heiress in 1670, the earldom
passed over her at once to the heir-male coUateral under
the limitation " hseredibus suis " in the Glencairn charter
of creation in 1488 — identical, as stated, with that in the
Montrose case. The investitures of the house of Kil
maurs or Glencairn, like those of Crawford, had been iu
favour of heirs-male whatsoever ever since the fourteenth
century. The House of Lords pronounced no opinion
(as might be inferred from Lord Kellie's statement) on
the interpretation of the limitation '' hseredibus " in the
Montrose charter, inasmuch as they dismissed the claim
before coming to the question of inheritance, merely on
the ground that the dukedom had been cut down, like
that of Glencairn, by the Act Bescissory of 1488, in
overrulement of the final judgment of the Court of Ses
sion in 1648, to the effect that the Act had had no such
effect upon the earldom, which the Lords admitted stood
in precisely the same category as the dukedom, so far.
vi. There is thus nothing inconsistent between my recent

326 THB EAELDOM OF MAE. let. xvii.
protestation in favour of Lord Mar's right under the
rule and presumption as laid down by the Oliphant
decision, and the advocacy by my father and myself of
our rights to the Crawford and Montrose dignities under
the exception to that law, likewise therein recognised
and laid down. I do not mean to say that the Oliphant
decision was brought into discussion on either of these
occasions ; but the argument was based throughout on
the proof that the heir-male had invariably been pre
ferred by the House of Crawford to the heir-general
and it was not necessary to go beyond that proof in the
argument submitted to the House of Lords under refer
ence from the Queen on either the one occasion or the
other.
vii. It is hardly worth noticing Lord KelUe's words, that I
have " quoted part of the judgment in " the Oliphant
case " for another purpose." I do so merely to state
that the other interlocutors in the Oliphant judgment
had no reference whatever to the general law of succes
sion, inclusive of rule and exception, but to matters
special to the particular case then before the Court.
There is nothing further, I think, calling for special
remark, under the present head of criticism.
2. I come now to the more important charge on the part of
Lord KeUie, to the effect that any intervention on my part on
behalf of Lord Mar, as expressed in my two Protests, or,
indeed, in any such matters, must be viewed with suspicion, as
proceeding from a partial and interested advocate, animated
by hostility to the House of Lords, as being myself a " dis
appointed " claimant. Lord Kellie's words are as foUows ;—
" Besides, I venture to doubt whether Lord Crawford cau be
considered an impartial judge in such matters, seeing that it is
not the first time that he has thought proper to impugn a judg
ment of the House of Lords. In 1850 the late Eari of Craw
ford claimed a Dukedom of Montrose. The claim, however,
was unanimously rejected by a Committee for Privileges, in
cluding Lords Lyndhurst, Brougham, St. Leonards, Cranworth,
and Eedesdale. Lord Crawford, then Lord Lindsay, was dis
appointed with this judgment, and wrote an Address to the
Queen, in which he used the following language,"— words

let. xvii, the EAELDOM OF MAE.

327

which I prefer to lay before the reader in connection with the
context in which they occur, but which I will give in italics :—
" This, my Lords," concludes Lord Kellie, " being Lord Craw
ford's opinion in a former case, it is not so surprising that he
should agam repudiate the authority of that tribunal and
declare that 'their Eesolution, although confirmed by the
Peers and approved of by the Sovereign, is inoperative, and
must be held nuU and void,' "—this declaration being on the
ground, I may add, that " there is not the slightest evidence by
writ or other competent proof that a new Peerage of Mar "—
that of 1565—" was ever created," etc., as in the seventh ratio
of my Additional Protest.
The passage in my Addres.s to the Queen, in which the
words quoted against me by Lord Kellie occur, are as
foUows: — "I trust that your Majesty will give me
credit for an anxious desire not to say one syUable
more than may be necessary in order to possess your
Majesty with the grounds and reasons upon which I
venture to hope that your Majesty, as the ultimate
resort, and as foreseeing the consequences which must
inevitably follow from such a step, will pause before
you deliberately sanction the Eesolution now sub
mitted to you. That, on the one hand, I beUeve that
fact has been misapprehended, evidence misrepresented,
laio misunderstood and misapplied, precedent disregarded,
and unjust and inconsistent measure liberally dealt out,
by the Committee to which my father's claim lias been sub
mitted by your Majesty — every point in his argument
being cither misconstrued, treated with contempt, or over
looked ; and that, on the other hand, every hint or
suggestion thrown out by the officers of the Crown or
by his Grace of Montrose has been eagerly picked up,
assimUated, and reproduced, to the prejudice of the
claimant, in the speeches which ushered in the Eesolu
tion ; whUe in more than one instance the characteristic
fearlessness of a noble and learned Lord has outstripped
even the bounds of modesty within which your Majesty's
learned officers restrained themselves, and has ventured
assertions and propositions which I maintain to be preg
nant with error, and utterly untenable in point of legal

,328 THE EAELDOM OF MAK. let. xvii.
fact and truth — that I believe this to be the case, I cannot
and will not deny ; and I affirm moreover, as the result
of close observation during the course of the inquiry, that,
speaking generally, this claim has been throughout thought
lightly of, vilipended, ond held cluap, especiaUy by the
noble and learned Loril to whom I have just aUuded, But
nevertheless, Madam, far from Ijeiiig willing to impute
wilful blindness or perversion to the noble and learned
Lords who have honoured this claim with their con
sideration, I feel most sincerely anxious to attribute—
and I am inclined to think that 1 may with truth and
justice fairly attribute — the (Jpinion to which they have
come, and by which I contend that the interests of my
family have been (thus far) sacrificed, not to any even
indirect moral obliquity, but to haste, precipitancy,
ignorance (perhaps not to be wondered at) of the feudal
and peerage law, more especially of Scotland, which
they behoved to administer — to light esteem, if not
disrespect, for the Supreme Civil Court of Scotland,
whether as regards its functional authority, its wisdom, or
its judicial integrity in past times — to an obU-vdon of the
great la-w of priority of obligation, by which antecedents
govern — and to a bias against the present claim, which
I believe to have been partly of unconscious growth,
and partly grounded on the erroneous \dews Avith respect
to peerages generally which I have already adverted to.
I feel assured, in short, that if the subject of the late
decision had lain within any of the pecuUar fields in
which the native genius, the acquired learning, and the
large experience of the noble and learned Lords who
have pronounced this opinion have on so many past
occasions been ably and gracefully exercised, the
result would have been very different. And, if I have
ventured to question the result actuaUy arrived at, I
ma)' say with truth that it has been in vindication and
defence of ancient and acknowledged law, of the com
petence and character of the Supreme CivU Court of
my native country, of Eoyal faith, of your Majesty's
prerogative, and of national honour — all of which were,
and are, involved, under the peculiar circumstances of

LET, XVU, THE EAELDOjM OF xMAE. 329
this case, in the recognition and maintenance of the
dignity now claimed by my father."
I grieve that this question ofthe Montrose claim should
have been introduced in this particular way into the
discussion between myself and Lord Kellie. But as
the words quoted from the above passage have been
made the fulcrum of an attempt to exclude my voice
from consideration in the Mar case, as that of a " dis
appointed " and discredited claimant, animated (as must
be inferred) by hostUity to the House of Lords, I have no
choice but to notice Lord Kellie's observations, not only
in vindication of my efforts on behalf of Lord Mar, but
of my own character and of the right of my family to
the ancient Dukedom in question, which it is assumed
are extinguished by the so-called " judgment " of the
House of Lords in 1853.
I do not quarrel with the word " disappointed," Every
one is disappointed who fails in an object he has set before
him ; but when he is foiled, not by the administration
of law, but by overrulement of law, on the part of
those in high places, disappointment is scarcely thought
of under the stronger sentiment of indignation.
The words Lord Kellie has quoted are strong ; but I
would ask, first. Is it to he presumed that I, a man of
mature years at the time when I wrote them, and address
ing the remonstrance to the Sovereign, would use such
without weighing their force and accuracy ? Be that as
it may, the main question is, Were the words true ? If
the words were not justified by proof, no apology or
retractation could be too absolute ; and no false pride
would have hindered me from withdrawing them. But
if justified, the lapse of nearly a quarter of a century
cannot diminish their potency or their weight. From
the manner in which Lord KelUe quotes them, it might
be supposed that the Address in which they occur had
been an ordinary and quasi-private petition. But that
Address was prefixed to my Eeport of the Montrose
claim — an elaborate Eeport, not privately circulated,
but published and advertised through the leading
pubUshers of London in 1855, in which I gave a full

330 THB EAELDOM OF MAE. let. xvii.
analysis of the argument as between my father and the
Crown, assisted and in fact inspired by the late Duke
of Montrose under very abnormal circumstances— the
speeches of counsel on both sides verbatim, the speeches
of the law Lords, and the Minutes of Evidence ; together
with various dissertations upon particular points of the
law and jurisdiction affecting peerages which I con
sidered essential to the full comprehension of the claim
and the Eeport of the Committee. To insure the fullest
publicity, 1 drew attention to the Eeport and the merits
of the case in a letter to the Times of the 1 9th November
1855. Thepublicationwasamatter of notoriety. Nothing
in the Address prefixed, or in the analysis of the plead
ings of counsel, or in the commentary I subjoined to the
speeches of the noble and learned Lords who addressed
the Committee, was alleged without reference to proof
-^every clause between every comma in the passage
quoted from by Lord KeUie was thus vindicated. And
I venture to submit that, however strong, the language
I used was temperate, and unaccompanied by the
slightest imputation upon the legal honour of those
whose "judgment" I remonstrated against. No one
has ever questioned the accuracy and fairness of that
Eeport from the day of its publication in 1855 till now.
The question, after all, remains, as in this present case
of Mar — Did the Lords report on the Montrose claim
in accordance with the law of Scotland aud the final
judgment of the Court of Session in 1648 — both of
which were binding on the House, or in contradiction
to that law and in overrulement of that judgment ? 1
cannot, of course, go further into the merits; but 1
appeal to my Eeport in full confidence that it wiU bear
out my affirmation that the noble and learned Lords
advised the Committee according to the latter of these
two alternatives.
But I have a word or two more to add on matters of
detail in this necessary vindication. Lord Kellie repre
sents the Committee for PrivUeges which reported on
the Montrose claim as including "Lords Lyndhurst,
Brougham, St. Leonards, Cranworth, and Eedesdale,"

LET. xvii. THE EAELDOM OF MAE. 331
who " unanimously rejected" the claim. The only
peers who addressed the Committee for Privileges
were Lord St. Leonards and Lord Cranworth. Lord
Brougham, who had been absent during the greater
part of the claimant's reply to the objections of the Crown,
authorised Lord St. Leonards to express his entire con
currence with the Eesolution which had been prepared
for proposition to the Committee. Lord Lyndhurst
limited his concurrence to the effect attributed to the
Act Bescissory of 1488, which he considered to have
annuUed the grant of the Dukedom, refraining from
the expression of any opinion on the other pleas inde
pendent of the Glencairn decision of 1648 which the
claimant had advanced, but to which, owing to non-
attendance, he had not been able to pay attention.
Lord Eedesdale, then as now Chairman of Committees,
and who is not a law Lord, did not speak ; and Lord
KeUie is in error in including his voice in the " unani
mous rejection'' of the claim. On the contrary, as Chair
man of Committees, Lord Eedesdale did his utmost — for
which I have ever been grateful to him — to obtain a fair
consideration of the argument by which the claimant
showed that the Act Bescissory neither had nor could
have any effect upon the dignity, and that the Court
of Session in 1648 decided that it had not had any in
the case of Glencairn. " The Court of Session," he said,
" found that there was nothing in the Act Bescissory
to prevent his" (Glencairn's) "assuming the title," —
" whether they were right or wrong, they accepted the
patent of 1488." I brought Lord Eedesdale's observa
tions together in a summary of the speeches in my
Eeport with this remark : — " The preceding dicta of
Lord Eedesdale are stated here merely as impressions
expressed in the course of the argument as the subjects
successively passed before the Committee. It does not
therefore by any means follow that the noble chairman
adhered to those impressions at the period when the
Eesolution was moved and agreed to, although the
claimant has no reason to suppose the contrary." I
protest therefore against Lord Eedesdale's authority
being marshaUed against me in the present matter

332 THE EARLDOM OF MAE. let. xvii.
along with those of the law Lords specified by Lord
Kellie, as if I had questioned his opinion in the Mon
trose case.
As Lord Kellie, in fine, has brought the Montrose case
into contrast with his own claim, I may add that whUe,
as he states, the noble and learned Lords took several
months to consider their judgment after the argument
had been concluded and the evidence was before them,
the entire hearing of the Montrose case from the open
ing speech of the claimant to the speeches of Lord
Chancellor Cranworth and Lord St. Leonards in moving
the Eesolution, was comprised between the 18th of
July and the Sth of August 1853 inclusive; while the
"judgment" was pronounced eleven days after the reply
for the claimant, and actually before the evidence had
been printed, much less examined by the noble and
learned Lords who advised the Committee. This fact
may serve as an Ulustration of the terms which Lord
Kellie has cited from my Address to Her Majesty.
I shall conclude my remonstrance upon this point
with the criticism of one whom every one wiU admit to
have been an impartial judge, the Hon. J. J. GUchrist,
Supreme Judge of Claims in the United States, to
whom the representative of a branch of my family,
settled for the last two centuries in Virginia, sent my
Eeport for perusal. He wrote to my clansman as
foUows : — " The ' Eeport' affords a study of deep interest
to all who are fond of historical investigations. ... I
entirely sympathise with the feeUng -n'hich prompted
the eloquent language of Lord Chief- Justice Crewe, — '1
suppose there is no man who hath any apprehension of
gentry or nobleness, but his affection stands to the
continuance of so noble a name and house, and would
take hold of a twig or twine thread to uphold it.' But
the claim of the Earl of Crawford stands on a firmer
basis than mere sentiment. Without pretending to a
knowledge of English Peerage Law, which lies out of
the path of legal investigation in this country, I cannot
understand how the House of Lords reached the result
that the patent of the 18th of May 1488 was invalid,
and that the ' Act Bescissory' should be sustained. The

LET. XVII. THE EAELDOM OF MAR. 333
reasoning against the ' Act Bescissory' seems to me
conclusive — unless there be some mysterious art neces
sary to be appUed in the construction and effect of an
Act relating to dignities, which does not obtain in con
struing other Statutes. The 'Act Bescissory' seems to
me to be as dead as the members of the Parliament that
enacted it. Without undertaking to enter into tbe
argument, I conceive that the facts, firstly, that all the
grants of James III. survived the Act and were not
impaired by it, and secondly, that the Earldom of
Glencairn, a case precisely in point and a precedent for
this, was held not to have been affected by it, furnish
sufficient evidence of the claim made by the Earl of
Crawford."^ An opinion like this by a senator of
our common British blood, but speaking from a sphere
removed above that of our petty passions on this side of
the Atlantic, reads, as I have always thought, like the
sentence of posterity.
I have to apologise — and I think every generous heart
will accept my apology — for this vindication of words
addressed by me twenty-five years ago in protestation
to the Queen against a Eeport to Her Majesty which I
had reason to qualify as proceeding on error and
injustice, — words of which I am not a.shamed, because
they are true, — words which have now been brought up
against me in such a manner as to suggest utter and
ignominious defeat upon a claim, the merits of which, I
take it for granted, are unknown to those whom Lord
KeUie addresses, and that with the view of damaging
my advocacy of a cause which has suffered tlirough an
overrulement by the House of Lords of the authority
and the final judgments of the Court of Session pro
nounced before the Union precisely parallel to that
which I have shown to have been utterly unjustifiable
in the case of Montrose. Different from a petard which
explodes only in one direction, the charge founded on
these words of mine explodes both backward and
forward, against Montrose in one direction and Mar in
the other ; and I have thus been compelled to include
Montrose as well as Mar in this vindication.
' The entire Letter mav be fnunrl in tlie T.Jimo „( +!.<. Lindsays, i. p. 173.

334 THB EAELDOM OF MAE. let. xvii,
The question remains, Does my having protested to
Her Majesty in 1853 against the Eeport on the Montrose
claim incapacitate me as a " disappointed " claimant,
and thus as a suspicious advocate, from protesting, as I
have done at Holyrood, against a real injustice done—
not to a claimant, but to a peer in possession — Lord Mar?
I cannot pass a verdict of acquittal on myself, — my
actions must speak for themselves. But the charitable
construction would, I think, have been to regard my
action as animated rather by the sense of justice to au
injured man, and a desire to assist in remedying that
injustice, than by a petty pique against the agents and
instruments of that injustice — a system in the present
instance acting through personal machinery — even
although I may have myself suffered from its activity.
But this is undoubtedly true, that the unprecedented
opposition to and the totally unexpected resiUt of the
Montrose claim drew my attention to the principles
and history of Scottish peerage law in a manner
which induced me to refer the unfortunate result of
that claim, as I refer now the injustice done to Lord
Mar, to a vicious system of inveterate tradition rather
than to the perverseness of individuals who' stood and
stand forth as the representatives of that system in
1853 and 1875. My experience of the Montrose claim
has thus rendered me more lenient than I could other
wise have been to those whose intervention has been
the subject of my criticism and remonstrance in my
Protests and in these present pages. This will appear
more clearly in the succeeding and closing Letter of
this series.
So much for the second category of charges — an ungrateful
subject, that I could not but meet by refutation, yet which I
willingly dismiss with a repetition of my belief, that the
attacks I have refuted have been of the nature of arrows and
darts in forensic, or quasi-forensic, warfare; while I dwell
with complacency and acknowledgment upon the personal
compliments with which Lord Kellie begins and ends his
Letter, as expressing the more generous feelings of esteem and
respect, which 1 fully reciprocate.

SECT. I, THE EAELDOM OF MAR, 335

LETTEE XVIIL
WHAT REMEDY ?
I HAVE now to conclude this series of Letters by a con
sideration of the question. What is the remedy for the present
state of things, first, as regards Lord Mar, and secondly, as
regards the Peers and the people of Scotland, as affected by
the assumption of supreme jurisdiction in regard to dignities
by the House of Lords, exhibited in its earUer stage by super
session of the laws of Scotland, and of decisions of the Court
of Session, and latterly by the assertion of an absolute right
of jurisdiction ? Under this second head I shall offer some
practical suggestions ou the manner in which claims to Scottish
dignities ought, I think, to be prosecuted from this time
forward, and on the question. What is the proper tribunal to
which all questions arising upon claims to vote at the elections
at Holyrood ought to be referred for settlement ?
Section I.
General considerations.
Two remedies suggest themselves in respect to Lord Mar's
position. The first and simplest is for the House of Lords to
cancel the Order of the 26th February 1875, and thus at once
remove the obstacle to the exercise of his rights at Holyrood, and
extricate itself with the least possible difficulty from its present
embarrassing position. The course thus suggested is the logical
consequence of the more discriminative views which the Select
Committee and the House of Lords have taken of their legal
powers within the last two years. The House has admitted
that it possesses no power of legislation except in so far as such
is delegated to it by the Legislature in limited and express
terms, as -by the Act of 1847, and that that Act gives them no

336 THE EARLDOM OF MAE, let, xviii,
power to tamper with the Union Eoll ; while it follows neces
sarily from this admission, that the private rules of the House,
identified with the names of Lord Mansfield and Lord Camden,
cannot supersede the laws and customs of Scotland to which
those rules are contradictory. But the Order of the 26th
February 1875 effects a revolution in the order of precedence
established by the Eoll, independently of the flaw attaching to
it from its having been issued at a moment when the House
•was functus officio, and the initiative for future action rested
exclusively with the Sovereign ; and the Eesolution adopted
by the House proceeds upon the application of Lord Mans
field's and Lord Camden's rules, more especiaUy Lord Mans
field's, as against the law of Scotland. Both the Eesolution
and the Order thus proceeded a non habente potcstatem, and
were extra vires of the House, by its own virtual admission
and acknowledgment. The Eesolution, as a barren rose, may
be aUowed to wither on its stalk ; but the Order is a thorn in
Lord Mar's side, which ought to be plucked out, and by those
who planted it there, — and I prefer this consideration with
confidence in the candour of the House and its sense of justice.
Nothing is more graceful than a frank acknowledgment of
error ; and retirement from a false position inadvertently but
honestly taken up in a matter of foreign law and right, under
the influence of tradition, confers honour on the highest.
Every difficulty would be thus removed. There is little fear
that any two peers will be found to protest against Lord Mar's
vote when the canceUation of the Order has afforded proof that
Lord Mar's case does not fall, in the opinion of the House,
within the provisions of the Act of 1847.
But the remedy for the present state of things as affecting
the interest of the Peers and people of Scotland, through the
assumption of supreme jurisdiction in dignities by the House
of Lords, opens a broader field for consideration. The peril to
which the Earldom of I\Iar has been exposed of being crushed
down by the Eeport of 1875, had Lord Mar been less fearless
and energetic in defence of its rights, and of the cause of the
Scottish Peerage embodied in his person, must be apparent to
every one ; but a general proposition such as mine, that the
independence and security of the whole Scottish Peerage is at
stake, may appear too extravagant for entertainment, and many

SECT. I. THE EAELDOM OF MAE. 337
even of those most deeply interested may be inclined to treat
the suggestion with indifference. At the risk therefore of
wearying their patience, I must perforce request their indul
gence while I enumerate the causes for alarm which call for a
remedy, as threatening their existence as a national peerage,
and which they will find to be very real if they will but take
the trouble to investigate them. I endeavoured to prepare the
way for this in the penultimate and final articles of my first
Protest, urging my brother peers to resist the acceptance of
Lord Kellie's vote as Earl of Mar under the creation of 1565,
on the ground that any homologation of the action taken by
the Committee for Privileges would tend to rivet the chains
that have been graduaUy coiUng round their limbs and liberties
during the last century. My words in these two articles may
seive as a text for what I have still to say, — -they were as
foUows : —
"VI. Because the vote of the Earl of Kellie as Earl of Mar
is tendered in virtue of the Eeport of a Committee of
Privileges which proceeds as its basis upon a principle
of overruling the final judgments and disaUowing the
paramount authority of the Court of Session in dignities,
as it existed previously to and at the date of the Treaty
of Union ; a principle which, originating in misappre
hension and oversight, has been in operation from and
since the Glencairn claim in 1797, was afiirmed and
systematised in the Montrose claim in 1853, and has
found its most recent expression in the Eeport upon the
claim of the Earl of Kellie to the Earldom of Mar in
1875, — the Eeports in each of these claims affirming
documents upon which the rights of the heir to these
dignities depend, to be invalid, null, and void, in the
face of judgments of the Court of Session in the seven
teenth century, standing and operative in the present
day, which pronounced them valid, effective, and opera
tive — the Committee of Privileges giving effect, on the
other hand, to documents which the same Supreme
Court had, in the same century and in the same breath,
pronounced invalid, non-effective, and inoperative, —
thus inflicting cruel injury upon the heirs in each of
these three cases; although the noble and learned
VOL. II. T

338 THE EAELDOM OF MAE. let, x^in.
Lords who advised these Committees would, there
cannot be a doubt, have advised differently, especially
in this last case of Mar, but for the controlling force of
the system which has grown up in the development
of the principle in question : — A6ceptance of the vote
of the Earl of Kellie as Earl of Mar, in virtue of the
Eeport, grounded as above, would, under these circum
stances, amount to a sanction and homologation of the
principle indicated; and such sanction and homolo
gation must import very grave peril to the peers
of Scotland, and to heirs and claimants of Scottish
dignities at a time when the above novel and revolu
tionary principle, adopted and enforced by Committees of
Pri-vdleges, threatens, if acquiesced in, to deprive them
of all security against their ancestral rights, as dependent
on judgments of the Court of Session, being overruled
and set aside hereafter, as in the three cases above
specified — the uncertainty and peril being now such
that no man can say where the blow wiU next fall . . ,
" VII. Because, finally, acceptance of the vote of the Earl of
KelUe as Earl of Mar upon the Eeport of the Com
mittee of Privileges, founded upon the principle above
shown, would be incompatible with rightful obedience
to the law of the land, and due reverence for constituted
authority ; and would thus amount not merely to the
sanction of private wrong, but to the infliction of public
injury, striking at the roots of justice."
Since this was written (and I need not interpose that the
remonstrance has been as yet unavaUing) the House of Lords
has taken a step stiU further in its progress towards absolutism
in regard to Scottish dignities, as exhibited in the speeches of
the noble and learned Lords who addressed the House on the
Duke of Buccleuch's Eesolution, and in the Eeport of the
Select Committee, — to say nothiug of Lord Selborne's pro
position in a more extreme sense in his speech upon Lord
Huntly's questions. The perils I apprehended at a distance
when I wrote that Protest, and when I published my Montrose
Eeport, have thus been brought very close to the Peers of
Scotland ; and the remedy which I suggested originally m
1853, and again advanced in my second or " Additional Pro-

SECT, n. THE EAELDOM OF MAR, 330
test" in 1879, appears to me to have become imperative, if
those perUs are to be averted. The remedy is simple, and is
in the hands of the Peers and the claimants of Scottish peer
ages, if only they choose to put out their hands and grasp it.
It consists, in a word, in reversion to the ancient and time-
honoured usage of preferring claims to Scottish peerages before
the Court of Session, and in a reference of all matters of dis
pute at the elections at Holyrood turning upon the right to
vote to the judgment of that tribunal.
Section II.
Enumeration of Perils.
I shaU preface my special vindication of the remedy sug
gested by an exposition of the leading perils that threaten us
under the existing and modern system and procedure in peer
age claims, and which would be avoided in great measure, if
not entirely, by recurrence to the ancient. If I draw illustra
tions from cases anterior to that of the Earldom of Mar, it is
because my Protests in regard to that dignity are based on the
proposition that the action taken by the House of Lords in tbe
the Mar case originated proximately in the action taken by
the House in the Montrose and Glencairn claims of 1853 and
1797, and more remotely in that taken by it in the Sutherland
and CassUlis claims of 1771 and 1762. These cases all hang
together in point of principle. I protested (as the reader will
have observed) for remedy of justice in the cases of Glencairn
and Montrose, as well as of Mar, in my first Protest ; and my
illustrations of perils in prospect take their rise necessarily
from the moment when the House assumed to itself the power
of superseding the laws of Scotland and the decisions of the
Court of Session by their own rules and judgments.
(1.) The great and dominant peril to which the Peers of
Scotland are subjected in the present state of things, is the
assumption by the House of Lords of absolute jurisdiction in
dignities, a fact on which I need only touch in order to awaken
the reader's mind to a full perception of the risk attending that
exercise, however just and honourable may be the character of
those who practically control the action of the House in such
matters.

340 THE EAELDOM OF MAE. let. xviii.
The assumption of this jurisdiction by the House of Lords
is by no means a novelty ; but it has been exercised rather than
categorically asserted ; and neither the Crown, nor the courts of
law, have ever given it the slightest recognition, but the con
trary. The authority of the Crown has always risen like a rock
on the wave of usurpation. It is a tradition, in fact, from the
theories and occasional practice of the English House of Lords;
but between which and its exercise, subsequently to the
merging of the English House of Lords in the House of Lords
of Great Britain, a portcullis has been legally dropped as
respects Scotland by the Treaty of Union. The assump
tion of this jurisdiction by the House on several occasions
before the Union was successfully resisted, as I have already
stated, e.g. by Lord Chief-Justice Holt in the Banbury
case, as contrary to law. But no sooner had the Union
taken place, than the new House of Lords of Great Britain,
inheriting the traditions of the defunct chamber, entered upon
the course of action of which we are reaping the fruits at the
present day — welcomed with evident eagerness a cluster of
petitions from the Duke of HamUton, the Marquess of Annan
dale, Lord Eoss of Halkhead, and others, who had been
aggrieved by the result of the first election of Eepresentative
Peers held after the consolidation of the two ParUaments of
England and Scotland on the 17th Jime 1708; and after
inquiry into the questions aUeged by the petitioners, the House
passed a series of General Eesolutions, of which the most im
portant was one affirming " That a Peer of Scotland claiming to
sit in the House of Peers in virtue of a patent passed under
the Great Seal of Great Britain after the Union, and who now
sits in the Parliament of Great Britain, hath no right to vote
in the election of the sixteen Peers who are to represent the
Peers of Scotland in Parliament" — the case being that of
the Duke of Queensberry, who had been created by Queen
Anne Duke of Dover in the Peerage of Great Britain. This
was distinctly a legislative enactment, determining upon the
rights and privUeges of a subject The Duke of Queensberry,
sitting as Duke of Dover, was thus excluded from his right
of voting from thenceforward. Again, in 1711, the Duke
of Hamilton having been created Duke of Brandon in the
Peerage of Great Britain, the House of Lords

SECT. II. THE EAELDOM OF MAE. 341
General Eesolution (on the 20th December 1711), "That no
patent of honour granted to any Peer of Great Britain who
was a Peer of Scotland at the time of the Union can enable
such Peer to sit and vote in Parliament, or to sit upon the
trial of Peers," against which a powerful protest was lodged by
nineteen peers, headed by the Duke of Ormonde, based upon
the leading ratio, " That the effect of the Eesolution was to
Umit the prerogative of the Crown in the creation of Peers; and
that the prerogative of the Crown, ... in granting patents of
honours . . . with the privUeges depending thereon, ought not,
on the construction of any Act of ParUament, to be taken away,
unless there be plain and express words to that purpose in the
said Act " — the same argument that stands against the Act
Eescissory of 1488 ; "and, we conceive," the protests continued,
"there are no such plain and express words for that purpose
in the Act of Union." The protesters also caUed attention to
the fact that " the prerogative of the Crown and right of the
Duke depending in the case before them upon the construction
of an Act of Parliament, through counsel, by order of the
House, were heard at the bar, and all tbe Judges were ordered
to attend at the same time, yet the opinion of the Judges was
not permitted to be asked touching the construction of tbe said
Act of Parliament." AU this took place without any reference
from the Crown, and thus ultra vires, according to English
understanding. The Duke of Queensberry was consequently
not aUowed his seat as Duke of Dover from 1719 tUl his death
in 1778, sixty years afterwards, when the Dukedom (of Dover)
became extinct; and the Dukes of HamUton were similarly
excluded from their seats as Dukes of Brandon till 1782,
when on petition from the then Duke of Hamilton and Brandon
to the Sovereign, George iii., referred by the King to the House
of Lords, the House — thus for the first time empowered to act
according to legal understanding— after summoning and hear
ing the opinions of the Judges, which opinions were unanimous,
resolved, " That the Duke of HamUton was entitled to his vsrit
of summons," which Eesolution and Eeport they submitted to
the King, " to your Majesty's -wisdom and justice." The House
had on more than one occasion originated and disposed of claims
to Scottish dignities during the interval between the Union and
(to take an average epoch) 1847; but, with the exception of

342 THE EAELDOM OF MAE. let, xvui.
certain irregular proceedings after the election of 1790, else
where noticed, I am not aware that the House ever assumed
the independent authority I am now dealing with tUl the recent
Order ofthe 26th February 1875, and the positions taken up
by Lord Eedesdale and Lord Cairns in the debate upon the
Duke of Buccleuch's Eesolution, and in the Eeport of the
Select Committee, — always distinguishing that position from
the extreme point of revolution indicated in Lord Selborne's
more recent speech, given in the preceding Letter.
Meanwhile the House had been more successful in per
manently appropriating the character of a Court of Appeal
from the Court of Session. I have already noticed the initia
tory step, viz., the General Order 19th AprU 1709, "that after
an appeal shall be received by this House from any sentence
or decision given or pronounced in any court in Scotland, and
an Order made by the House for the Eespondent to answer the
said appeal, and notice of such Order duly served on the Ee
spondent, the sentences or decisions so appealed against from
such time ought not to be carried into execution by any pro
cess whatever," — this being a direct infraction of the Claim of
Eights (if stiU an element of consideration in 1709) and ofthe
Treaty of Union.
Almost all the perUs I have still to mention spring from
this root of bitterness, the assumption of supreme jurisdiction
by the House of Lords m dignities — a jurisdiction without
appeal, as it necessarily becomes when the remedial interven
tion of the Sovereign as ultimate judge is excluded.
It will be observed that both the General Eesolutions in
respect to British peerages conferred on Scottish Peers subse
quently to the Union, and the General Order respecting the
execution of the sentences of the Court of Session, were acts of
legislation, the former amounting, as was subsequently acknow
ledged, to an invasion on the Eoyal prerogative no less than
on the rights of the subject ; and that by the recent avowal of
the House that it possesses no legislative power (except under
specific delegation from the Legislature, for which there is
no pretence here), both the Eesolutions and the Order, and
all similar General Eesolutions and Orders which infringe upon
established law are thus determined to be extra vires of the
House, as proceeding a non habente potcstatem,. But this

sect. II, THE EAELDOM OF MAE. • 343
acknowledgment by no means implies that they may not be
acted upon.
(2.) Among the earliest of the developments of the doctrine
of supreme jurisdiction was the affirmation that the House of
Lords is entitled to act, or, as they style it, " judge," in claims
to dignities on grounds of expediency as well as law. This
has been productive of a crop of weeds which have terribly
entangled the footsteps of claimants in matters of procedure,
and have introduced an element of uncertainty into the inves
tigation of the claims themselves.
Lord Mansfield laid down the principle in the most explicit
terms in his speech on the Sutherland claim : — " It is of im
portance that all questions concerning peerages should be
settled upon the principles of expediency as well as of law ;
and upon considering this matter, I thought your Lordships
must determine upon the charter 1601." I have already shown
that the adoption of the rule and presumption in favour of
heirs-male, as urged on the occasion of the CassUUs claim in
1762, was for the object of discountenancing claims to dignities
descendible to coheirs by Scottish law in the person of the
eldest daughter and her heirs, and failing such, of the second
daughter, and so on, as contrasted with the preferable English
system by which, when a barony descendible to heirs-general
ends at the death of the tenant, leaving more than one daugh
ter, but no son, it sinks into abeyance, and is thus — the
inference is clear — got rid of. I shall limit myself in this
present Letter to pointing out how the principle of expediency
affects claimants and procedure in peerage claims, apart from
the discussion upon the evidence. It does so in two main
points — first, the quality and limits of the opposition which
may legaUy be offered to a peerage claim ; and, secondly, the
immunity of claims to peerage from prescription.
1, In the first place, as regards the right of opposition, it
was laid down by Lord Brougham in the Montrose claim,
without dissent on the part of other noble and learned Lords,
who concurred at least in the action taken by the Committee
for Privileges on the occasion, that the House of Lords, sitting
in Committee for Privileges, possessed a "large discretion,"
which it is entitled to exercise in the interest of the House.
The circumstances which elicited this affirmation were as

344 • THE EAELDOM OF MAE. let, xviii,
follows :— When my father, the late Earl of Crawford, advanced
his claim to the Dukedom of Montrose created in 1488, the
late Duke of Montrose (under the creation of 1707) apphed by
petition to be allowed to oppose the claim on the grounds of
personal inconvenience through the identity of name and of
loss of precedency to himself and the other Dukes of Scotland
apprehended in case of the success of the claim. This petition
was not granted ; but he was allowed by a side-wind to act in
every respect as if he had been recognised as a legal counter-
claimant, or as having interest in the claim.
In development of this assumption of a " large discretion,"
action was taken by the Committee, which resolved, as pre
cedents, into certain principles, which must be presumed in
consistency to have become established, through their enforce
ment against the Montrose claimant, for all future time. Two
of these, with a third principle deducible from the Mar case,
are here enumerated : —
i. That it is optional on the part of the officers of the
Crown, the Attorney-General and the Lord Advocate, to make
inquiries and oppose, or not to oppose, in Scottish Peerage
claims ; and that it is within the power, if it be not rather the
duty, of Committees for Privileges to protect the Crown against
the expense and trouble of opposition to such claims. It is
hardly necessary for me to repeat here what I have already
urged, that the interest of the Crown consists in the ascertain
ment and knowledge of truth, which can only be attained to
by dispassionate inquiry, in abstention from any partisanship
either on the part of a claimant or of those who may oppose liis
claim ; and that they betray the interests of the Crown and
commit injustice against a claimant when they depart from the
letter or the spirit of this incumbent obUgation, The abuse is
of long standing. The plea of " expense and trouble " to the
Crown cannot be dissociated from the supposed necessity of
paying deference to the private engagements of the oflficers of
the Crown as counsel. But the duty to the Crown and to a
claimant is the first consideration, to which the other is sub
ordinate. Why should the interest of the claimant be sacri
ficed to that of the Attorney-General, or Lord Advocate or
Solicitor-General for Scotland? A claim to peerage is the
most important of all private causes which can occupy public

SECT. n. THE EARLDOM OF MAE. 345
attention; and it is a fact of public concern, rather than
private. ii. That in the event of the officers of the Crown declining
to undertake, or a Committee for Privileges wishing to protect
the Crown from the trouble and expense attendant on such
inquiries and opposition, and there being no counter-claimant
or party interested to bear that burden, the Committee is en
titled on that account, in the exercise of the " large discretion ''
inherent in it, to permit an absolute stranger, supposing him
self entitled, but whom the Committee have decided to have
no interest whatever in such claim, to interpose for the purpose
of supplying the Crowu with evidence and argument at his
own expense towards the defeat of a claim referred to the
House of Lords for their advice by the Sovereign, and this
irrespectively of its justice ; to lodge cases for the officers of
the Crown to adopt and argue upon, without the latter being
under the respon.sibility of making any independent inquiries,
apart from which it would be impossible for the officers in
question to ascertain whether the facts and arguments alleged
and put into their mouths are just or not ; and thus to make a
cat's-paw of the Crown for his own personal ends; whUe,
further, the officers of the Crown may retain the counsel of
such utter stranger as counsel for the Crown, who may sit with
the officers of the Crown within the bar of the House of Lords,
act as counsel for the Crown, and take part in the proceedings,
if necessary, during the absence. of the officers of the Crown.
All this took place in the Montrose claim.
iii. That, in the event of a claim coming before the House
of Lords by reference from the Crown, the alleged right to
which depends on the correlative nullity of an older title of
the same name, alleged to be extinct, the peer in possession of
that older title by the law of Scotland may — or rather must
henceforward in consistency — be refused his title, and compeUed
to defend himself as a commoner at the bar of the House, and
must abstain from voting at Holyrood tUl the claim of the
petitioner to the more modern title shall have been considered
and determined upon ; and this although the petitioner make
no claim to the older title. This has been the procedure in
the late Mar case. It foUows that if, under the Act of 1847,
two peers were to protest against the right of the Prince of

346 THE EAELDOM OF MAE. let. xvin.
Wales to the Dukedom of Bothesay, or, we wiU say, of the
Duke of Hamilton to that Dukedom, and the House should
think fit to order the Duke to appear at the bar of the House,
under the provisions of the Act, to prove his title, the House
must in consistency refuse to recognise him as Duke, and must
treat him as a commoner and virtual claimant tiU the aUega
tion of the two protesting peers has been investigated and
decided upon. The Earl of Mar is in as undoubted possession of
the Earldom of Mar on the Union EoU by the law of Scotland
as the Duke of Hamilton is of the Dukedom of HamUton, a
dignity descendible to heirs-general precisely like that of Mar.
This will not be a pleasant piU for the peers of Scotland to
swallow. But fortunately it can only be administered by
themselves to themselves in the first instance.
2. As regards the immunity of peerage claims from prescrip
tion, it has been laid down that, in the view of the "expense and
trouble" occasioned to the Crown and to individuals by peerage
claims, and on considerations of broader poUcy, it is expedient
that claims to peerages of ancient date should be discouraged, and
that a rule ought to be introduced establishing a bar of prescrip
tion against such. The danger to the Scottish Peerage involved
in this view, traditional in the House of Lords, must not be
undervalued because it may appear remote and undefined. It
has its birth in the theory of despotic and dispensative power
claimed for the House, guided and enlightened by the teach
ings of expediency. It is more than a century now since the
suggestion was first started and acted upon, as may be remem
bered, by Lord Hardwicke and Lord Mansfield in the CassiUis
claim, when they called attention to the fact that the older
Scottish dignities being frequently descendible to heirs-general,
and in such cases the eldest heir-female succeeded, and the
dignities were thus perpetuated ; whereas in English baronies,
descendible to heirs-general, and ending in coheirs, the dignity
sank into abeyance — a contrast upon which the noble and
learned Lords laid down and enforced the novel rule and pre
sumption of male descent upon Scottish peerages of parallel
antiquity. But the suggestion was resuscitated and enforced
in a broader affirmation by Lord St. Leonards in the Montrose
claim in 1853. His ipsissima verba, those that formulated the
suggestion and those that followed in vindication of it, are too

sect. ii. the EAELDOM OF MAE. 347
remarkable in themselves not to require citation : — " My Lords,"
he said, " it may weU deserve consideration whether it would
not be wise to put some Umit of time upon a claim to peerage,
in order to prevent such enormous expense and such consump
tion of time as must very often take place in regard to claims
to ancient peerages."
I need not trouble the reader with the special reasons
aUeged by Lord St. Leonards in favour of this suggestion from
his experience of the Montrose claim — they may be read in a
note, and are worth reading as throwing light on the length
and breadth of the point I have here insisted upon. Nor need
I enter into any exposition of the views protective of ancient
peerages against prescription on grounds of public policy. It
will be enough to point out that the bar suggested by Lord
St, Leonards would strike — 1. Against the authority and judg
ments of the Court of Session in many cases determined by
them before and even since the Union, by which judgments
the right of heritage in certain dignities has been determined
in favour of individuals and their heirs in perpetuum — i.e. so
long as those heirs continued to subsist, 2. It would strike
against the private rights of Scottish subjects, including those
here in question as depending upon Scottish law, and existing
at the time of the Union, as protected by the Treaty of Union
and the Act of Parliament carrying out the provisions of that
Treaty. 3. It would strike at the royal prerogative, through
which those rights were constituted by the limitations in
charters and patents granted by monarchs in ancient times to
deserving subjects and their heirs under the respective limita
tions for ever until annulled by attainder in case of treason, or
alienated by resignation to the Sovereign by the tenant pro
tempore in legal form, either for a regrant under the same or
an altered limitation, or in perpetuam remanentiam. And
further, 4, It would strike at public policy, as it proposes
practically to extinguish peerages after the direct line fails
and the right of collaterals emerges ; whereas dignities, more
especiaUy such as are bound up (as those of Mar, Montrose,
and Glencairn are) with the history and glory of nations, are,
by the consent of the civUised world, a precious and sacred
heritage, imposing deep responsibility, like aU pubUc charges,
on those who inherit them — honourable and profitable to

348 THB EAELDOM OF MAE. let, xviii
monarchs and to the commonwealth — while the entire pubhc
is interested in their maintenance and conservation.
It is for the Peers of Scotland to reflect that, should this
threatened bar of prescription be adopted and enforced by the
House of Lords — and no one can say, judging from the past,
and from the assumption of supreme jurisdiction in dignities
independently of the Queen, which is now asserted for the
House, when such a bar, illegal though it would be, may not
be established, when the power assumed and exercised is prac
tically unlimited — it would strike at the very roots of the
Scottish Peerage, very many of the dignities held by Scottish
families being of date far older than 1488, the period pointed
at by Lord St. Leonards ; while most of these are descendible
by their limitations to distant coUateral heirs. Many a stately
and branching tree, cherished not merely by those who share a
common descent, in ranks varying from the peer to the peasant
— but by the people of Scotland at large, and by the innumer
able family of " Scoti extra Scotiam " as landmarks of then-
ancestral and native history — would thus be leveUed with
the dust.
(3.) A further chapter of peril opens, of perUs positive and
contingent, intimately affecting Scottish peerage claims, in the
reversal by the House of Lords of the hitherto accepted rules
of law applicable to dignities, especially those of feudal origin,
as well as to ordinary subjects, to the effect of establishing new
rules in supersession of the old, and laying up these new rules
in the armoury of the House, to be brought forth and employed
as weapons, when needed, when the old are pleaded by Scottish
claimants. The arrogation of the right to formulate such new
rules dates, as stated in the preceding article, from 1762. The
two most important rules are those identified with the names
of Lord Mansfield and Lord Camden, and against which these
Letters have been a protest from beginning to end. They have
been made to overrule the law of Scotland in every cause of
controverted succession during the last hundred years, although
it by no means follows that claimants, to whose pretension the
modern rules have been applied, were not entitled in the
majority of cases to the favourable reports of the House on
genuine Scottish grounds. There might have been a difficulty
about this if the speeches were considered as judgments, but

SECT, II, THE EAELDOM OF MAE. 349
this error is now repudiated by the House, and we have only
to deal with the Eesolutions, cleared as these Eesolutions must
be, of aU adventitious matter not warranted by the strict
limits of the ancient formula of response to the Sovereign.
But besides these general rules, and many variations from
Scottish orthodoxy of less consequence, a most formidable
series of innovations upon peerage law, and indeed all law, was
initiated in the Montrose claim, — innovations under the influ
ence of which the claim was decided adversely to the claimant
on many important points. I give them, with the corrective
truths in connection with them, as published in the remon
strance addressed to Her Majesty, with which I prefaced my
Eeport of the claim. There is not one of them which may not
be cited as authority in future claims ; and such being the
case, I make no apology for the quotation. One of the articles
specified I omit here, in order to include it under the next head
of this category of perils : —
" 1. That, whereas it has been held hitherto that a Scottish peer
age could only be alienated by resignation, by forfeiture, or by a duly
expressed and duly sanctioned Act of Parliament, it is now laid down
generally, and broadly by the Lord Chancellor of England, that it
could be annulled by ' the omnipotence of Parliament ' — that ' Parlia
ment can destroy a peerage, or take a person's property, or do any
thing else ' — that is, the Scottish Parliament could do so, to the super
seding of law, at the single impulse of its autocratic will and pleasure,
in the fifteenth, as the British Parliament can now do in the nine
teenth century. I would humbly represent that this doctrine was un
heard of in the feudal ages, and that, although some unscrupulous
men have in later times, ' by a figure rather too bold,' endeavoured to
invest the Parliament of England with the most distinctive attribute of
Deity, it is too much to assume (as appears to be assumed in regard
to the present case) that what can be done must necessarily be done
lawfully, and that an assembly which exists only cognately and con
currently with constitutional government, is not bound by the existing
and unrepealed laws of the land, as well as by those higher conditions
under which, only, power is delegated from God to man. In a word,
I deprecate the doctrine thus enunciated — and more especially so in
connection with expressions which have recently fallen from noble and
learned Lords, indicating au opinion (incredible as it may appear) that
Parliament (as distinguished from and disconnected with the Sovereign)
can create, restrict, or (as above) annul a peerage — expressions and
doctrine dissociating your Majesty from that august body of which you
are the head ; and which, in arrogating to that body your Majesty's

350 THE EAELDOM OF MAE. let. xviii,
peculiar privilege of being the fount of honour, must tend directly and
inevitably to the degradation of your prerogative and supremacy — ex
pressions and doctrine, moreover, as I would further remark, closely
connected with and akin to an assumption, whieh pervades the recent
discussion, on the part alike of the ofiEicers of the Crown and of the
Committee, that the House of Lords possesses an inherent jurisdiction
and right of decision in peerage matters, irrespectively of reference
from the Crown, in utter derogation from your Majesty's supreme and
living prerogative, and in oblivion of the grace and confidence reposed
in that most Honourable House by your Majesty ; an assumption only
tardily, at the last moment, and, as it appears to me, imperfectly,
abandoned by the noble and learned Lord who spoke last in moving
the Eesolution, and that in consequence of vindication of the truth by
the learned counsel who represented my father. I only touch, how
ever, upon these assumptions and opinions as indicative of the broad
and pregnant principle of the omnipotence of Parliament from which
they flow, and against which I protest before your Majesty, as utterly
subversive, in its root and its development, of British liberty. I need
say nothing more on this head, inasmuch as my father does not dispute
that the honour he claims might have been annulled by an Act of
Parliament if so expressed as legally to affect it ; if, that is to say,
expressed with due formality and specification as regards the honour
aud the individual struck at ; if sanctioned by tbe full and particular
concurrence of the Sovereign, without which, by the Peerage Law,
alike of Scotland and of England, Parliament, by itself alone, is un-
potent in honours : and if, too, not repealed according to Scottish law
and usage, by non-eft'ect and non-operation, or, as it is technically
termed in Scotland, by desuetude, ab initio. As matter of fact, the
Committee have in this case held, that the simple enrolment of an Act
on the Statute-book of Scotland, whether duly expressed and sanctioned
or not, and whether it took effect practically or not, is sufficient to
make it law in perpetuity, operative to cut down and annihilate a
Scottish Peerage !
" 2. Whereas it is a rule, ahke of Scottish and EngUsh law,
that a Statute must be interpreted < in that sense which the words
most obviously suggest to the understanding,' that is, according to
the actual words used and not according to the presumed inten
tion of those who framed it, every particular word being en
titled to its full aud due value, weight, and consideration;
while it is only where the words admit of two different mean
ings, or where the effect of the Statute is to work injustice, that
the words may be departed from — although exclusively, under such
contingency, in favour of justice and mercy, — and all this of course a
fortiori iu the case of penal Statutes, and of that most susceptible and
shrinking of ah subjects of which the law takes cognisance, the matter

SECT. II. THE EAELDOM OF MAE. 351
of honours : — Whereas such has been the rule and practice hitherto,
the principle is now practically asserted and adopted that Statutes, how
ever confessedly unjust, impious, or disloyal, are to be interpreted and
enforced according to the presumed intention of the Parliament that
pass them, and not according to the grammatical meaning of the words
actually used ; and that words may be either virtually expunged from
such Statutes, or positively imported into them, in order to give that
presumed intention effect — against justice and mercy, in penal Statutes,
and in the matter of honours. And this principle has been extended
still further in its application, in so far as to excuse illegality and in
justice, to wit, illegal confiscations, on the ground that the confiscators
had reason to believe that an Act of Parliament would be thereafter
passed to legalise those confiscations — the illegal and just denial to a
peer of his rightful title, on the ground that the enemies of that title
had reason to believe that it was intended to deprive him of it — and
the (alleged) illegal and therefore (as presumed) unwarranted assump
tion of a title on the part of one not entitled to it, on the ground that he
had reason to believe that it was in contemplation to grant it to him. A
melancholy departure from the spirit which animated Sir Edward Coke
when he penned his gracious sentence, that ' Acts of Parliament are to
be so construed as no man that is innocent or free from injurie or wrong
be by a literal construction punished or endamaged,' — a dictum, indeed,
of which the claimant feels himself wholly independent in the present
case and question, where the clear construction of the words is such as
to have necessitated the expedients above remarked upon, in order to
, evade their distinct testimony in his favour.
" 3. That, whereas the maxim, ' In dubiis benigniora semper
sequenda sunt,' a generous and a just one, has hitherto been in observ
ance both in Scotland and England, and especially so in honours, this
rule of charity has now been practically superseded aud set aside, and
in a case where, by direct admission on the part of one noble and
learned Lord, and involuntary betrayal on that of another, ' all is in great
obscurity ' (an obscurity only arising, indeed, from wilful abnegation
by those noble and learned Lords of the wholesome and cheering guid
ance of precedent and peerage la-B'), everything esteemed doubtful has
been interpreted to the disadvantage of the claimant.
" 4. That, whereas it has been held hitherto (and it has not been
denied by my father's opponents in this claim) that penal Statutes must
be interpreted most strictly, and especially so in honours — with the
most anxious desire and effort to avoid attainders, forfeitures, and de
privations, and to construe such Statutes in favour of the persons who
may be supposed to be struck at by them — and this, of course, a for
tiori where those persons are innocent and undeserving of such inflic
tion, it is now practically ruled by noble and learned Lords in this case,
that — even where innocence and desert are admitted on all sides — a

352 THE EAELDOM OF MAE. let. xvul
penal Statute is to be strained to its utmost in favour of forfeiture, and
against mercy ; that where a qualification is introduced limiting the
application of the Statute to a particular class of persons, such qualifi
cations may be interpreted (and, indeed, if this precedent be followed,
must be interpreted) as merely an incorrect mode of statmg that the
persons generally alluded to are all struck at without qualification — ^the
words creating the qualification being thus (as above) virtually ex
punged ; and that words may, or must, be imported into the Statute,
which are not there, in order to fix this application. I humbly repre
sent that such a rule of construction has never hitherto been adopted in
penal Statutes, and that its recognition and enforcement now will have
the most serious effects, not merely upon future peerage claims (if re
ferred to the House by your Majesty), but upon public security and
confidence. It amounts, in fact, to an introduction of the principle,
abhorrent hitherto to the British heart and mind, that an accused person
is to be presumed guilty till proved innocent.
" 5. That, -whereas it has been ruled in peerage law since (at
least) the commencement of the fifteenth century, that it has been the
correspondent principle and usage iu all cases of attainder, forfeiture,
and penal infliction down to the present moment, that general words
in a penal Act are insuflBcient per se to affect individuals, but that the
individuals (and their heirs) must be specifically mentioned, and the
honours intended to be annuUed must be specifically annulled, in order
to give those general words effect ; this noble rule — distinctly laid
down in the weighty Norfolk decision in 1425 — is now reversed, and
it is held that peerages may be abolished by Parliament in the aggre
gate, provided only that the period within which they have been
created is specified — the specification of that period being sufficient to
establish that the peerages struck at are mentioned expressly by
name, — a direct departure, I presume to think, from the broad pre
sumption of innocence and immunity which is cast as a shield over the
life, property, and fame of every individual British subject.
" 6. That, whereas it has been the rule and understanding hitherto
that remedial Statutes framed for the purpose of redressing wrong and
expiating iniquity should receive the most large and liberal interpreta
tion in favour of those persons whom, in the calm and contrite
judgment of the Legislature, they may feel conscious of having injured ;
it is now practically established that remedial Acts are to be most
strictly interpreted against the avowed objects of those Acts and the
expressed intention of the Legislature ; and that the specific mention
of the individual, the strict legal proof that he falls within the scope
and intention of the Act, which is no longer to be required in the case
of a penal Act (even striking at honours) shall be imperative hencefor
ward in order to entitle him to the benefit of the remedial Statute.

SECT. n. THE EAELDOM OF MAE. 353
" 8. That, whereas it has been hitherto ruled that the warrants and
signatures which pass under the eye of the Sovereign, and possess his
sanction and authority, govern the interpretation of patents or charters
subsequently executed out of the Eoyal presence in obedience to those
warrants by the Clerks of Chancery ; and that if those patents or
charters vary in any respect (as they often do vary) from the warrants,
they fall to be corrected by reference to the warrants — the eye, cog
nisance, and authority of the Sovereign, as the fountain of honour,
being first, last, and everything in honours ; this rule is now practically
reversed, and it is held that the patents or charters are to govern the
warrants, and that if any discrepancy exist between the warrant and
the charter, the warrant is to be corrected by the charter and not the
charter by the warrant — a principle which condemns more than one
antecedent Eesolution of the House of Lords, aud which (if it possess
any effect at all — if it be not ipso facto null and void, and as dealing
with a matter above and beyond the competence of the House) must
supersede the will and authority of the Sovereign from henceforward
by the wiU and authority of the Clerks of Chancery — and not in
peerages only, but with regard to all property granted by the Crown,
whether in past, present, or future times."
I remonstrated against these novel principles in 1853 —
principles which strike at the very foundation of law, whether
of dignities or ordinary subjects — as having revolutionised the
law of peerage so far as the act of the House of Lords could
have that effect apart from the Legislature; but there is no
power even for the Legislature to legitimise them. It is true
that by the recent disclamation by the House of all legislative
power, and by its declaration relegating the dicta of noble and
learned Lords in their speeches to the category of mere opinions,
not judgments, the priaciples above tabled may thus be con
sidered to be left open to adoption or rejection by future Com
mittees for Privileges. Still, the injustice they contributed to
perpetrate in the Montrose case is self-evident ; and there is
nothing to prevent noble and learned Lords of a later genera
tion from digging them up from under the ruins of the Mon
trose claim in order to reapply them, with the sanction of the
authority of Lord Cranworth and Lord St. Leonards, against
future claimants of Scottish peerages, when simUar questions
of construction and law and legal presumption come before
Committees. And if this be not a grave peril in prospect for
the Scottish peers, I know not what is.
(4.) The power assumed and exercised by the House of
VOL. II. z

354 THB EAELDOM OF MAE. let, xviii.
Lords to set aside and supersede final judgments of the Court
of Session pronounced before the Union, iu favour of their own
opinions of what those judgments ought to have been, suggests
a peril to the Scottish peers and to the people of Scotland
generally, akin to that which I have just dealt with. The
assumption was first made in the CassiUis claim, when the
decreet by the Court of Session in the Oliphant case in 1633
was set aside by Lord Mansfield — and again in the Sutherland
claim — on a side issue, but coupled with words stigmatising it
as a very bad decision — although proceeding from a tribunal
without appeal, suggesting the reflection that a Committee for
PrivUeges, which asserts the same finality for its own decision,
ought to have ascribed it stiU more emphatically to the Supreme
Court of Scotland. The rule styled Lord Mansfield's was
established in the teeth of the OUphant judgment, and the
disaUowance of that judgment was reiterated in the Sutherland
case in 1771, and is a standing fact at the present day, inas
much as the application of Lord Mansfield's law in the recent
Mar case is based exclusively on the supersession of the
Scottish judgment. The overrulement of the Glencairn v.
Eglinton judgment of 1648 in 1797 and 1853, and of the
Mar V. Elphinstone judgment in 1626 in the recent Mar case,
are similar examples. I noticed this innovation in my address
to Her Majesty as follows : — " That whereas the judgments of
the Supreme Civil Court of Scotland in peerage cases pro
nounced before the Union, at the time when that Court possessed
supreme and ultimate authority, without appeal to King or
Parliament, have hitherto been respected and obeyed as final
and ruUng decisions, governing the existence, the descent, and
the relative precedency of many ancient peerages, it is now
ruled that those decisions are not binding upon the House of
Lords at present or subsequently to the Union, — a rule which,
I submit, must have a broad and searchiug influence on Scottish
peerage claims in future, besides opening the door to re-dis
cussion of many points and subjects hitherto supposed to be
settled for ever."
But it would be rash to assume that this making ducks and
drakes as it were of solemn decisions of the Court of Session,
can under no possible circumstances affect other interests than
that of peerage ; and notwithstanding any suggestion based on

SECT. IL THE EAELDOM OF MAE. 355
the sanctions of prescription, I shall dismiss this present perU
by citing the eloquent words with which WilUam Earl of
Glencairn concluded his " suppUcation " to the rebel Parlia
ment in 1649, ia remonstrance against their impending action
in annulling the decreet of the Court of Session, pronounced
in his favour in the preceding year, — words almost prophetic
in their note of warning : —
" And, if it sould not be denayed bot that the leidges may
call in question befoir the Court of Parliament the decissiounes of
Session, considder how it is not onlie possible, bot verie liklie, and
probable, and inevitable, that contentious and unsatiable men wold
bring in questioun the maist pairt of all decisiones that halve been
fra tyme to tyme, efter muche debait and trouble among the pairties,
concludit be the Lordis, or that sail be concludit in tyme to cume ;
and then quhat uncertaintie haith the haill leidges of thair honouris,
fortunes, and estaitis, and quhat confusion will thence aryse, may be
obvious to the sense of anye — it being manifest that the maist pairt
of the subjects of the kingdome bruikis thar fortunes and estaittis be
vhtew of the lawes of the kingdome and sentences of the Senate and
Supreme Court of the Sessioun, as onlie Judgeis in all matteris of
richt and heritage — yea, in (e'en, even) the very act of prescriptioun
sould not secure thame in thair present fortounes, for even thay may
contravert decissiones befoir a prescryvit tyme, seeing they may affirm
bonam fidem in not contraverting the same befoir this noveltie and
new act of the Erie of Eglintoune's, if the same sould be admitted and
granted, contrar to the receivit praoteis of aU former tymes and
hberties of the Sessioun and leidges. And yit, for all this, it is cleir
be the law and be the very institution of the Colledge of Justice,
that the Lordis of Sessioun ar not exempt from punishment if they
sail malverse or behave thamselffes baselie in thair places by brybeing,
partiall counsell, or suche lyk misdemeanours, against all quhich the
leidgis have ther awin proper remedies, and may geive in thir lawful
complaints, quhilks can na wayes tak away the richtis of pairties ob-
tenit be thair saidis decisiones : and if this decreit and sentience,
obtained hy your Honouris' supplicant efter so lang disput and pley
of law, befoir the onlie Supreame Judge of all matteris of richt and
heretage, sould be 'now called in question, then it sail necessarilie follow,
be inevitable consequence, that all decreitis gevin he that same Senate
of Sessioun may be raitmersit (reversed) and annullit, quhilk were the
opening of ane doore to overturne all the richtis of the subjectis, bruikit
be tliaime be vertew of decreits of the Lordis of Sessioun. And quther
¦ (whether) or not this be of ane deep and dangerous consequence, to put
all the leidges in uncertaintie of thair richtis, is humblie offerit to the
consideratioun and justice ofthe ParUament."

356 THE EAELDOM OF MAE. let, xviii.
(5.) A peril grounded on the same basis of supreme juris
diction asserted for itself by the House of Lords, but of com
paratively recent evolution, consists in the principle that a
Committee for Privileges is not bound in any way by the
views upon which a previous Committee for Privileges has
founded its report — or, as it is styled, decision or judgment upon
a claim involving the identical point of law and construction ;
but that Committees are entitled to consider each case that
comes before them upon its own merits, irrespectively of such
precedents. The development and bearing of this principle can
hardly be appreciated without a few words on the subject of
certain peerage claims — that to the Dukedom of Norfolk in 1425,
that to the Earldom of Devon in 1830-1, that to the Dukedom
of Montrose in 1853, and that to the Earldom of WUtes in
1862 ; whUe the Mar case of 1875 equally furnishes its Ulustra
tion. It wUl be seen as I proceed how the five cases iUustrate
the principle I here dwell upon.
1. The Dukedom of Norfolk was created by Bichard ii. in
1397, under historical circumstances identical with those of
the creation of the Dukedom of Montrose by James in. in
1488. The Norfolk honour was supposed to have been an
nulled by a general Act of Eevocation, or Act Eescissory,
passed by Henry iv. and the successful rebels in 1399, precisely
as the Montrose honour was aUeged to have been cut down by
the general Act Eescissory passed by James iv. and the success
ful rebels in 1488. Neither the son of the Duke of Norfolk,
nor the son of the Duke of Montrose, nor the son and grandson
of the Earl of Glencairn (created at the same time with Mon
trose), assumed the .dignity for many years after the death of
the respective granters — grave reasons, elsewhere explained,
rendering it impossible. But the son of the Duke of Norfolk
claimed the Dukedom in 1425, and it was adjudged to him by
the King and Parliament on these among other rationes .—that
neither the Duke, the original grantee, nor his heirs were
specially mentioned in the general Act Eescissory, apart from
which special mention the Act could not affect the right to the
honour, — that the creation had not been speciaUy revoked by
Parliament otherwise in the case of the Duke and his heirs ;
and that other honours created in pari casu with the Dukedom,
and similarly struck at (in general terms only) by the Act

sect. II. THE EAELDOM OF MAE. 357
Eescissory, had survived unaffected by it. The Montrose
claimant in 1853 founded upon every one of these rationes as
a precedent for his own case under the ruling upon which
Lord Brougham had advised the Committee for Privileges in
the Devon claim in 1830-1, viz., that the principles in law
apphcable to dignities were the same in England and in Scot
land for a considerable time after the development of the
feudal system in the two countries, and that it was lawful to
argue from one to the other for Ulustration and guidance in
cases of obscurity. I may also mention that Lord Brougham
in 1832 decided the claim of the Earl of Shrewsbury to the
Earldom of Waterford in the Peerage of Ireland, created in
1446, on the ground that " a dignity or title of honour cannot
be taken away (where there is no deficiency or corruption of
blood) except by express words in an Act of Parliament.''
2. The Earldom of Devonshire, or Devon, was created by
Mary Queen of England in 1553, in favour of the Courtenays,
in whose Ulustrious race that Earldom had long been heredi
tary, with limitation " hseredibus suis mascuUs in perpetuum,"
that is, to the heirs-male of the patentee ; and the dignity was
claimed by the coUateral heir-male, William Viscount Courte
nay, in 1831. The question was whether the Umitation
" heirs " simply, without the adjunct " de corpore " included
collaterals ; and the Committee reported in favour of the
claimant, as advised by Lord Brougham in an elaborate speech,
in which he urged (ut supra) that the early law of Scotland and
England had been originaUy the same in honours ; that,
although the English law had undergone "many important
changes in the course of ages," the law of Scotland " remains in
viridi observantia up to the very period of the Union," and that,
as according to Scottish understanding and rule the Umitation
"hseredibus" without the adjunct "de corpore" includes
coUaterals, that understanding and rule was applicable to the
construction of the Umitation in the Devon patent. Dating
the analogy from the period when the Celtic was supplanted
by the Norman polity in Scotland, Lord Brougham's argument
from analogy as between the gentUitial law of the two
countries was legitimately drawn ; and the conclusion in favour
of the Devon claimant sufficiently justified. I have personaUy
no reason for especial gratitude to Lord Brougham as an

358 THE EAELDOM OF MAE. let. xviii.
adviser of Committees for Privileges ; but, with frequent
error, the result of a precipitation grounded on self-confidence,
he had a keen and powerful inteUect, enlarged legaUy by an
early acquaintance with the Scoto-Eoman law, and not un
frequently grasped great principles, although as often faUing
in the appreciation of details. His better star predominated,
I think, in the Devon decision, as it also did in that of the
Earldom of Waterford, above noticed.
3. When my father advanced his claim to the Dukedom
of Montrose, created in 1488 — a claim grounded on broad
principles of law, independently of any precedent — ^he clenched
his argument by founding upon two precedents, in which parallel
cases had been decided to precisely the same effect in England
and Scotland, each of which (although more peculiarly the
Scottish precedent) amounted, he urged, to res judicata in
his favour ; and on each of which he took his stand, as bind
ing on the House of Lords. He founded, first, on the historical
and legal paraUel between the Dukedom of Montrose and that
of Norfolk, and upon the rationes decidendi laid down (as above)
in 1425, which applied word for word to his own claim,—
the parallel between a Scottish and English case of such
remote antiquity, and the legal inference therefrom, being justi
fied by the argument and ruling of Lord Brougham in the
Devon case. My father founded, secondly, on the judgment of
the Court of Session in the paraUel case of the Earldom of
Glencairn, which judgment, pronounced in 1648, being final
and irreversible, and regulating precedence at the present day,
was binding upon the House of Lords, to the effect that the
Act Eescissory did not cut down the Earldom of Glencairn and
therefore could not cut down the Dukedom. Lord Loughborough
had overruled the decreet and advised the Committee on the
Glencairn claim ia 1 79 7 that the Act had cut down the Earidom,
but this. Lord Crawford contended, could be no obstacle, as the
judgment of 1 648 was binding upon the Committee in 1797 as it
was in 1853 ; and if Lord Loughborough disregarded it, tanips
pour lui, — his errors and misdirection could not countervail the
weight and prevenient obUgation, the standing judgment,
the res judicata, of 1648. But Lord Cranworth and Lord St.
Leonards advised the Committee, in opposition to the Montrose
claimant on both these points and precedents, by application

SECT. II. THE EAELDOM OF MAE. 359
in the one instance of the principle which I am now remark
ing upon, and in the other instance (incredible as it may appear)
by the exact reverse of it. Lord Cranworth and Lord St.
Leonards disallowed the Norfolk decision as a precedent on
grounds not touching the historical and legal points of paraUel
ism (in short, by a side issue, as Lord Mansfield had evaded
the OUphant judgment in 1762 and 1771), and either set the
rationes cursorily aside or passed them over sub silentio by
the aid of certain of the novel principles enumerated under
the third article of peril supra, — and I may add, in the face of
the judgment in the Waterford claim in 1832 above noticed ;
—thus, in fact, inaugurating the principle of independence
of precedent which we shall find Lord Chelmsford shortly
afterwards affirming and acting upon in the Wiltes case. On
the other hand. Lord St. Leonards riUed that the views laid
down by Lord Loughborough in his speech on the Glencairn
claim in 1797, viz., that the Earldom of Glencairn created in
1488 had been cut down by the Act Eescissory, was the oiUy
precedent the House could look to, and was binding upon the
House as against the Montrose claimant ; and this, although
the decreet of 1648 was, according to Lord Loughborough's own
statement, before his eyes, and although the Montrose claimant
had proved that almost every fact affirmed by Lord Lough
borough was erroneous, which Lord St. Leonards did not attempt
to deny — enforcing the "judgment " as binding, whether right or
wrong, as the Mar "judgment" of 1875 has similarly been
held to be binding, right or wrong, by Lord Eedesdale, if not
by Lord Selborne and Lord Cairns. The Committee for Privi
leges thus, in the Montrose case, got rid of the Norfolk preced
ent by a side-wind (although they did not attempt to impugn
its rationes), virtually ruling that they were not to be governed
by precedent; and got rid of the Glencairn precedent of 1648,
which was a fortiori binding on the House as res judicata upon
the individual point before them, by enforcing the absolute effect
of the speech of Lord Loughborough in 1797 as a precedent to
be maintained codte que co4te against the Montrose claimant
before them. The Committee thus blew hot and cold in one
breath — like an ice storm from the north and a simoom from
the south, vsdth equaUy destructive effect. What adds to the
compUcation is, that the Glencairn Eesolution was simply to

360 THE EAELDOM OF MAE. let. xviii.
the effect that the claimant had not made out his claim, keep
ing absolute sUence as to the views expressed by Lord Lough
borough in his address to the Committee; whereas by the
recent declaration of the House, viz,, that the speeches in
Committee are mere opinions, and may not be imported into
the Eesolution, or made the basis of action. Lord St. Leonards's
enforcement of Lord Loughborough's speech, as binding against
the finding in the Montrose claim, was, it is now averred, unwar
rantable and illegal, — independently of the fact that the ruling
in that speech was itself Ulegal in presence of the decreet.
4. Lastly, with the precedent of the Devon decision in
view, Mr. Scrope, the heir-male collateral of WUUam Le Scrope,
Earl of WUtes, created as such by Bichard ii. in 1397, at the
sanie moment with the Dukedom of Norfolk, claimed the Earl
dom in 1869, on the ground that he was entitled under the
Devon decision, founded on the Scottish rule that the hmitation
" haeredibus " without further addition included coUaterals.
But Lord Chelmsford, who advised the Committee for Privi-
leo-es, disallowed the claim on the gromid that he considered
the Devon decision by Lord Brougham to have been founded
on error, and that the Committee for PrivUeges ought not to
fall into the same error by foUowing it as a precedent. His
words were as foUows : —
" I cannot agree that the determination of one Committee of
Privileges must be a binding and conclusive authority upon another.
It may be conceded that an opinion expressed by those who are
exercising a quasi-judicial function wUl always be entitled to respect
and consideration ; but it cannot claim the authority of a final deci
sion upon any particular point of law in the same manner as a
judicial determination of the House sitting as a tribunal of ultimate
appeal from the judgments and decrees of the courts of law and equity.
... A resolution of a Committee of Privileges is in no sense a judg
ment ; and although admitted to be prima fade valid and conclusive,
yet it does not establish a precedent which all future Committees are
bound to follow. . . . The Eesolutions of Committees of Privileges are
merely for the purpose of information and advice to the Crown. The
Crown, though it generaUy acts upon, is not bound by them. It may
exercise its own discretion in giving or refusing its assent to the
Resolutions."
Here again, therefore, in contrast to the ruling of Lord St.
Leonards in 1853, that the decision of Lord Loughborough on

SECT. II. THE EAELDOM OF MAE. 361
the Glencairn claim in 1797 was binding, right or wrong, on
the Committee for Privileges in the Montrose claim of 1853,
Lord Chelmsford ruled that the Devon decision of 1830-1 was
not binding on the Committee on the Wiltes claim, and, there
fore, that Mr. Scrope's claim must be reported to the Crown as
without foundation.
I may remark, in supplement to the preceding cases, that
the House of Lords issued the Order of the 26th February
1875 in the recent Mar case upon the assumption that the
speeches in Committee were to be imported into the Eesolution
— thus in contradiction once more to Lord Chelmsford's ruling
in the WUtes ca.se in 1862, and in conformity to Lord St.
Leonards's construction in the Glencairn case in 1797 ; but as it
is now held, as I have reported in the debate upon the Duke
of Buccleuch's Eesolution, that the speeches are mere opinions,
and do not form part of the Eesolution, and cannot be imported
into it, the Order in question and Lord St. Leonards's enforce
ment of the Glencairn speeches (not the Eesolution) in 1797
against the Montrose claim, both faU to the ground. And so
matters stand at present, and will stand — unless some counter
blast from the desert flings the sand once more into con
fusion. The effect of the principle which is thus identified with the
Wiltes decision, viz., " That a Committee for Privileges is not
bound in any way by the views upon which aprevious Committee
for PrivUeges has founded its report upon a claim involving the
identical point of law and construction ; but that Committees
are entitled to consider each case upon its own merits, irrespec
tively of such precedents," is twofold, — on the one hand,
claimants are delivered from the contingency of being defeated
through crude opinions advanced in Committees for PrivUeges
being enforced as judgments and precedents ; and, on the other
hand, they are deprived of aU landmarks for guidance between
the sunken reefs of Committees for Pri-dleges in tbe House of
Lords. But it is impossible to accept the attitude taken up in
the WUtes case as final, when we find the contrary principle
acted upon and stUl enforced in the Order of 1875. The perU
to which claimants of dignities are exposed by this series of
blasts and counterblasts is one of utter uncertainty, with the
miserable compensation that, if Committees for PrivUeges are

362 THE EAELDOM OF MAE. let. xvui,
henceforward to be considered absolutely independent of pre
cedent, " lords of themselves," although " a heritage of woe" to
claimants, it is possible that they may relapse inadvertently
into sounder views, and practicaUy rescind and act indepen
dently of the reversals of accepted law which I have above
specified, and even recognise judgments of the Court of Session
as entitled to deference in Scottish cases — thus stumbUng upon
truth while wandering in error. But there can be no reason
able security for the vessel reaching the haven of success when
the compass is without a needle, the chart on which the shoals
and reefs of an intricate navigation was inscribed has been
thrown overboard, and the blasts of every varying wind of
gentUitial doctrine, the personal prepossession of noble and
learned Lords as to what decisions ought to have been if past,
and ought to be if in future, and how they can be so framed as
appears to them through the spectacles of the mneteenth cen
tury, swell its saUs and propel its course, irrespectively of
fixed and adjudged law and precedent.
Looking at the position of the House of Lords, as affirmed
by the WUtes decision, we cannot but see that, feebly as the
links have cohered of late years, an absolute break of continuity
has now been effected in the tradition of the House of Lords
as advisers of the Sovereign in peerage claims reported to them.
They have cut themselves adrift, and must float down the
stream. As in the times of anarchy before the institution of
judges in Israel, every Committee for Privileges does as it
seems right in their own eyes. It is hardly necessary to point
out that confidence in the permanence of justice and fixity of
principle in every court, whether of law, of arbitration, or of
inquiry, must be abandoned, when such court divorces itself
in this manner from antiquity and precedent. I weU remem
ber in the Montrose claim the confidence with which I
anticipated the effect which the successive proofs must pro
duce upon a tribunal which professed to be guided by the
strict rule of priority of obligation in the enforcement of law—
a confidence which Mr. Eiddell largely shared, and apart from
which would never have advised my father to embark in the
claim. I remember too how that confidence graduaUy died
away through intercourse with the EngUsh counsel and a nearer
acquaintance with the practical working of Committees for

SECT. 11. THE EAELDOM OF MAE. 363
Privileges in such claims, till at last, when the final day of the
speeches and the Eesolution arrived, I went down to the House
with pencil in hand, prepared to take note of the rationes
decidendi in repudiation of the claim, and felt thankful, as the
speeches proceeded, that the noble and learned Lords com
mitted themselves step by step to the avowal of views, every
one of which furnished a plea of remonstrance as against law
and justice. What I felt very strongly, and what I feel now,
was and is that we had been betrayed, practically betrayed,
into the toils by our confidence that law and precedent, as
estabUshed for instance in tbe Norfolk and Glencairn judg
ments of 1425 and 1648, would be respected by the Committee
—precisely the same delusion which subsequently beguiled
Mr Scrope, the Wiltes claimant, into the false position in
which his family have been placed through his and their con
fidence that the Devon precedent would be followed in his own
case. The reader wiU now see why I have taken these various
cases in connection in reference to the present and pressing
point of peril to the Peers of Scotland. I have invariably dis
couraged claimants who have consulted me as to the expediency
of bringing forward their claims before the House of Lords, on
the ground of the utter uncertainty what line any Committee
for Privileges may take. I did so in the late Lord KelUe's
case, but on the ground that the right of the heir-general was
so clear by previous decisions that the House was bound to
follow, as to give him no chance of success ; but if my prog
nostication as to the suggested failure was wrong, it arose
simply from that utter disregard for law and precedent which
I had not calculated upon. All this is not as it should be in a
court, whether of inquiry or of final jurisdiction, to which the
most important subjects of adjudication, the dignities of the
realm, are subjected. This, at least, is clear:— It would be
madness hereafter for any claimant to advance a claim to a
dignity by petition to the Crown without previously ascertain
ing, so far as it may be practicable, the probable leanings of the
noble and learned Lords who may be expected to sit and advise
the Crown upon the particular points which form the strength
or weakness of the claim, while all retrospective references to
the earlier rulings of Committees of PrivUeges, or, if such a

364 THE EAELDOM OF MAE. let. xviii.
thought can be admitted, to the decisions of the Court of
Session in a Scottish case, would be thrown away. Moreover,
there is the risk always of a change in the law Lords who
take the lead in Committees if a case be prolonged for some
space of time.
Such, in fine, is the uncertain and unstable ordeal to which
claims to perhaps the highest and most ancient dignities of
Scotland are henceforward to be subject. The peril to the
Peerage of Scotland cannot be over-estimated.
(6.) Peril is yet further to be apprehended, and of a formid
able character, from a principle, the immediate birth of the
supremacy asserted for the House of Lords in dignities, and
which was initiated in modern times in the Montrose claim,
viz., that a Committee for Privileges may report upon an
apprehended claim in the negative before any claim has been
advanced by the person against whom the Eeport is made,—
this being with the view, it woiUd appear, of precluding the
possibility of the claim being advanced hereafter through
petition to the Sovereign. The principle was originally
asserted, or at least acted upon, by the House of Lords in the
celebrated Banbury case in 1694, which nearly led to a conflict
between the House and Lord Chief -Justice Holt, who negatived
it in the Court of King's Bench as contrary to law, — a conflict
which the House prudently withdrew from. Its revival after
a dormancy of one hundred and fifty years in the Montrose
case in 1853 was effected by the insertion of a clause (elsewhere
remarked upon) in the Eesolution upon that claim under the
following circumstances : —
The Dukedom of Montrose was granted twice, as has been
shown, to David Earl of Crawford, first by James in., by
charter, 18th May 1488, and secondly by James iv., with
advice of Parliament, 18th September 1489. The claimant,
my father, claimed the dignity under the original charter; and
cited the second grant as evidence affording proof, by acknow
ledgment of the Duke's political enemies, that his right under
the original grant could not possibly fall under the terms of the
noted Act Eescissory, and that as there had never been a break
in the Duke's loyalty, and he had neither been attainted, nor
had resigned the dignity (all which was fully admitted by the
Committee for Privileges), the dignity must still be in his

SECT, II. THE EAELDOM OF MAE. 365
heirs under the original charter in question. My father did
not claim under this regrant by petition to the Crown,
although holding that it was as effective to his right as the
original charter ; and he preferred holding his dukedom from
the King who originaUy granted it as the reward of transcendent
loyalty and merit rather than from the son of that King, who
had been a tool in the hands of traitors who had murdered their
Sovereign. Lord Crawford might have claimed under the
regrant, but he did not ; and no claim under the said regrant
was before the Committee of Privileges as referred to for
advice by the Sovereign. The Eesolution as proposed by Lord
ChanceUor Cranworth at the conclusion of his address con
tained no allusion to the regrant ; but after Lord St. Leonards
had concluded his own speech, and was proceeding in his turn
to propose the Eesolution, a sudden thought appeared to strike
him, and taking up a pen, he inserted the following clause : —
" That the grant of the Dukedom made by King James iv. to
the said David Earl of Crawford in 1489 was a grant for
the term of his Ufe only," — not, doubtless, without assent
from Lord Cranworth, but of course hurriedly given ; and the
noble and learned Lord re-read and proposed the Eesolution,
thus amended, with the rapidity of a flash of lightning, — but
not so as to escape my eyes, watching the proceeding. The
claimant had strongly protested during the discussion against
any prejudgment of the question of right under the regrant ;
and, I must add, that in describing it in my Address to Her
Majesty as " an afterthought," I felt compelled to submit the
foUowing comment : — " That an intention of including the
regrant in the Eesolution would appear to have been lurking
in Lord St. Leonards's mind at a very early period in the pro
ceedings, inasmuch as, at the conclusion of Sir Fitzroy Kelly's
address on behalf of the claimant. Lord St. Leonards repudi
ated the idea of confining the consideration of the claim to the
patent of 1488 and the Act Eescissory — in manifest contradic
tion to the views and understanding of the Attorney-General,
of the Lord Chancellor, of Lord Brougham, and of the Chair
man of Committees, Lord Eedesdale — who appear to have
been quite unsuspicious (as was the claimant likewise) of what
was germinating in the mind of the noble and learned Lord.
Lord St. Leonards's intervention was an act of illegality as

366 THE EAELDOM OF MAE. let, xviii,
affecting the rights of a subject, and a distinct usurpation of
the privUege of the Sovereign, and moreover a point-blank
contradiction to the judgment of Lord Chief- Justice Holt
pronounced when a similar step of outrecuidance had been
taken by the House in the Banbury case, and that upright,
learned, and fearless judge laid it down that ' The Lords had
not any cause before them.' This was only a petition of the
Earl to be tried by his peers, the which was a matter of privi
lege of which they had cognisance ; but the right of Earldom
never was before them or submitted to their judgment. . , ,
This petition asserted him to be an Earl, he did not put that
question before them, and therefore their sentence was more
than they had before them to determine. . . . He demanded to
be tried by his peers, and asserted himself to be a peer ; and
they answered that he had not a right to the Earldom of
Banbury ; the which was a thing out of the petition, and of
which the Lords had not any jurisdiction."
The insertion of the clause in question in the Montrose
Eesolution was thus ultra vires on the part of the House,
and illegal and a nullity. No case precisely similar has since
occurred; but the principle thus established has been prac
tically acted upon in the recent Mar case — through the issue
of the Order 26th February 1875 excluding the heir-general,
the lawful Earl of Mar, from his seat at the Peers' table at
Holyrood, and placing Lord Kellie in liis seat, on the ground
that the heir-general had no right to the original earldom-
Lord Mar having made no claim thereto by petition to the
Crown, and the House thus having no authority to pronounce
an opinion upon his right, or take action upon such opinion,
as they confessedly did in fulminating the Order in question.
The parallel of the Mar with the Banbury case is more close
than with the Montrose ; but the principle has been the same
in all the three cases, private rights and the respect due to the
Sovereign being equally disregarded in each instance.
It must be evident to the Peers of Scotland and to
claimants of Scottish dignities that the ground may be cut
from beneath their feet in the prospect of claims in futuro by
recourse to the principle thus sanctioned by the House of
Lords. (7.) But perhaps the most portentous omen indicated by the

SECT. IL THE EAELDOM OF MAE. 367
thunder-cloud which has gathered over Scotland — (my noble
brethren may rub their eyes, and declare that the sky is clear,
but it hangs there, black and palpable) — is the utter disregard
manifested in the action of the House of Lords for generations
past for the provisions of the Treaty of Union, by which the
rights of the subjects within Scotland, peers not less than
peasants, are protected. The utter oblivion of the Treaty of
Union in the enactments of the Statute 10 and 11 Victoria,
c. 52, originating in the House of Lords and carried through a
careless and indifferent House of Commons, is a flagrant
instance of this. I need not dwell upon the vast and common
interests which aU Scotsmen must have in defending the liber
ties secured to them by that Treaty. The perU in short to
Scottish interests, and those particular interests of the Peerage
which I am now deaUng with, is the greater inasmuch as most
people look upon the right of succession to peerages and all
matters connected with dignities as matters apart from the
general interest; whereas the right to a Scottish dignity rests
on precisely the same ground as the right to landed or any
other heritage ; and a blow struck at the former — as, for
example, in the superseding of tbe Scottish law and presump
tion of succession to the traditional rule and presumption
of the House of Lords— cannot but be felt by the latter,
and shake this security to the foundation. Noble Lords at
recent elections at Holyrood have boasted that they were
British Peers, entitled to have their rights adjudicated upon
by the House of Lords exclusively, — confounding the privi
leges of a peer with the right to a Peerage — entirely distinct
things. (8.) Lastly, if all, or many, of the perils above enumerated
may appear theoretic and visionary, the Peers of Scotland may
take note that a very proximate suggestion of peril subsists in
the single fact that injury of the most grievous and, at first
sight, irreparable character has already been infUcted on the
heirs to the dignities of Glencairn, Montrose, and Mar by the
Eeports of Committees for Privileges in the House of Lords
upon these three cases : — In the Glencairn claim, injury to the
heirs under the original and only patent or charter of creation,
of 1488, whether heirs-male or heirs-general, whose claims to
the dignity under the limitation in this charter are a point

368 THE EAELDOM OF MAE. let. xvhi,
open to discussion, but under either alternative have been
ruthlessly blotted out ; while the Eesolution held forth an in
ducement to the heir-male to claim the dignity in virtue of a
presumed creation under an imaginary patent, such as Lord
KeUie claimed under in 1875, but the suggestion of which was
repudiated by the Court of Session by a distinct interlocutor
in the Glencairn case in 1648 : — In the Montrose claim, injury
to the heirs under the limitation in the patent or charter of
creation of 1488, whether heirs-male or heirs-general, whose
rights are thus, as in the Glencairn case, to aU appearance
defeated : — And, injury to the heir-general in the Mar case,
whose rights to the Earldom of Mar, ranking as from 1404,
have been overlooked and set aside, and the Earl of KeUie
declared to be Earl of Mar ia his stead, and placed in the seat
and precedency of the ancient Earldom, to which he has made
no claim or pretension— a seat in no possible sense his own.
But if such injury has been inflicted on generations past and
present, what, let tbe Peers of Scotland ask themselves, may
not be expected in the future ? For under the blighting in
fluence of the innovations above noticed, and more especially
of that on which I laid special stress in my Protest; the prin
ciple that the House of Lords has power to overrule the judg
ments of the Court of Session, and act according to their own
rule of justice, or even expediency — a principle stretching its
branches like an upas tree over the length and breadth of the
land, no Peer of Scotland can tell where the next blast may
not fall, whether on himself or on his family, or on his brother
peers ; inasmuch as there are few among us whose rights of
precedence, if descendible, and even of simple recognition and
existence, do not depend directly or indirectly upon judgments
of the Supreme Civil Court, protected by the Treaty of Union;
and these are now liable at any moment to be slighted or
trampled under foot, as in the three cases above specified. Auto
cratic power, such as is virtually claimed for itself by the House
of Lords, is incompatible with the claims of justice and right ;
these last must occasionaUy knock under. It is never to be
forgotten that in the Glencairn, Montrose and Mar cases, the
House of Lords, under the guidance of those who advise Com
mittees for Privileges, have identified themselves with the
position of the rebels against Janies III, and lawful authority

SECT, II. THE .EAELDOM OF MAE. 369
in 1488, of the opponents of the Erskines and of legal right
from 1457 to 1565, and of the Parliament in rebelUon after the
execution of Charles I. in 1649. The assumption of absolute
jurisdiction in 1879 can only be compared to that of the Parlia
ment in 1649, when they attempted to annul a decreet of the
Court of Session, because it pointed the parallel between them
selves in 1649, immediately after the murder of King Charles,
and the ParUament of 1489, the first held by the murderers of
James iii. The ParUament of 1649 was unsuccessful; their
enactments were rescinded at the Eestoration. The House of
Lords have been more successful now. What does such con
duct augur for the future in Scotti.sh dignities ?
And thus I close this category of perils, from the considera
tion of which I shall now attempt to draw a practical con
clusion. Section III.
Disadvantages of the present usage.
I shall be asked, Granting the existence of these perils,
what remedy can there be 1 Can we expect the Legislature to
interfere ? would it not be a greater risk still to invite such
interference ? And who is the Bell-the-Cat to engage in such
a crusade against prepotent authority, fortified by immemorial
custom ? — immemorial, indeed, only in the imagination of those
whose recoUection does not carry them back to the days of
Lord Brougham and Lord Eldon, when the exclusion of the
lay element from Committees for PrivUeges was first accom
phshed, and the usage of referring claims to dignities ex
clusively to the House of Lords had not been adopted by the
Crown. My answer to these questions is, that there is no occasion for
legislation, nor for a crusade, nor even for a collision with the
House of Lords — the remedy lies at our very door, and can
give ground of offence to no one. My suggestion is of the
simplest. Let those who prefer it, and are wUling to run the
risk, prefer their claims to peerages to the Sovereign personally,
as has been done during the last hundred years ; but let claim
ants to Scottish dignities return to the only constitutional
and legal tribunal for the decision of such claims, viz., the
VOL. II. 2 A

370 THE EAELDOM OF MAE. let. xviii.
Court of Session ; acting, in a word, henceforward, iu accord
ance with the law of the land, and the sanction under the
protection of the Treaty of Union, instead of seeking an award
by a roundabout course from an arbiter who no longer professes
to judge, and is practically superseded by his assessors, Uke the
Merovingian kings in their declining time by the mayors of
the palace, although the comparison is imperfect, inasmuch as
the mayors of the palace acted in the name of the prince till
the last.
I may be allowed to repeat here what I have elsewhere
said, that it is only by aUowance on the part of claimants, and
by consent of the Sovereign to act as arbiter, that such claims
can by any possibUity (consistently with legal and constitu
tional obligation) come before the Sovereign, and under an
implied compact that the claims shall be decided according to
the law of Scotland, which has not been observed by the
Sovereign's assessor, the House of Lords. Yet it is said there
is no appeal — the decision is final, irreversible, right or wrong.
Where, therefore, shall Scottish claimants resort to, if not to
their native tribunal, the Court of Session, in obedience, I
repeat, to the law of the land and the Treaty of Union ?
It will not, I think, be denied that when claims are ad
vanced, or interests are at stake, which are dependent upon
the correct application of the laws of a particular country, and
when the Court which sits in judgment is the supreme tribunal
of that country, presided over by men conversant from their youth
with the law, and with the precedents which must govern their
decision, and applying that law under the immediate eye of
their countrymen, legal no less than lay, the administration of
justice under such circumstances of vantage may be expected
to be more satisfactory than if the tribunal to which the ques
tions are submitted is that of a foreign country, presided over
by men who, however able and conscientious, have been trained
in a different school of jurisprudence, and are unacquainted (as
a rule) with the law and the precedents which could alone
guide them to right decision. Yet this is the contrast between
the Court of Session and the House of Lords, as it is now pre
sented to us by the law Lords and the Eeport of the Select
Committee as a court of supreme jurisdiction in Scottish
dignities.

SECT. ni. THB EAELDOM OF MAE. 371
It is true that, acting as a court of appeal from the Court
of Session, the House of Lords may (according to the system
which has grown up in regard to such appeals) review a decision
of the Court of Session. But this is only after full considera
tion of the judgments of the Lords of Session, which is a very
different condition of things from the investigation of claims to
dignities brought before the House by reference from the Crown,
and with the merits of which they become acquainted only
through the pleadings of counsel, without any aid from the
judges of the Supreme Court of Scotland.
The contrast thus established in favour of a national as
against a foreign tribunal is applicable a fortiori, now that the
House of Lords no longer acknowledges itself a mere court of
inquiry, unable to originate, but simply answering the questions
of the Crown by Eesolutions, which are the expression of mere
opinions only, not judgments — as Lord Chelmsford laid it down
in 1862, in accordance with ancient usage, — but has asserted
an absolute jurisdiction, and acted in marked disallowance and
supersession of the Sovereign in the background, as in the case
of Lord Mar, so as to cut off all opportunity of remonstrance on
the part of those interested, and preclude the Sovereign from
pronouncing his award upon the question — as by the Order of
the 26th February 1875. The contrast is between the Court of
Session, with its Outer and Inner House, its nohile officium, and
thirteen of the ablest lawyers of Scotland as judges, and a Com
mittee for Privileges of the House of Lords, in which, on more
than one occasion, three, or two, or even one noble and learned
Lord has decided upon claims to the highest of aU possessions,
the right to peerage, under circumstances in which the proverb
" Too many cooks spoU the broth " appears to have been pre
ferred to the older and more highly sanctioned adage, " In the
multitude of counsellors there is -wisdom." But the mischiefs
of the current system cannot be gauged by any mere numerical
standard. So long as the Sovereign took a personal interest as judge or
arbiter in peerage claims, taking advice where it could be best
rendered — as George l. did, for example, from the officers of
the Crown for Scotland in the case of the Viscounty of Kirk
cudbright, — the objection to the system which has prevailed
since the determination of the Lovat claim by the Court of Ses-

372 THE EAELDOM OF MAE. let, xvm,
sion in 1730, and the suspense of the Oxenfurd claim in 1733,
has been less objectionable ; because the ultimate authority of
the Crown was stiU recognised, as by Lord Chelmsford in the
Wiltes case in 1862; but the Order of the 26th February
1875, the assumption of a jurisdiction absolute and without
appeal by the House of Lords, as the result of the debate on the
Duke of Buccleuch's Eesolution, and of which we have seen the
last outcome in the speech of Lord Selborne reported in the
preceding Letter, have signed, I may say, the death-warrant of
that procedure by petition, reference, report, consideration, and
award, which was, as I have shown, permissive and not obUga
tory on Scottish claimants, and which it was always in their
power to refrain from resorting to in deference to the superior
claim of the Court of Session under the sanctions of Scottish
law and the Treaty of Union.
What I have thus stated in general terms may be appre
ciated more accurately when I point out the disadvantages under
which the claimant of a Scottish dignity, or one defending his
hereditary rights against one who assaUs them, is placed when
appearing at the bar of the House of Lords, sitting as a Com
mittee for PrivUeges. I speak from personal experience as well
as observation ; and although successive generations of law
Lords in the House may have possessed more or less of the
knowledge requisite for giving an opinion upon a Scottish
peerage case, and the moral of the Committee may vary accord
ing to that of its constituent elements, the picture I have so
stated wUI not be found, I think, to be overcharged. It is with
no disrespect to the House of Lords, or to its legal advisers m
past or present times, that I sketch the constitution and proce
dure of a Committee for Privileges in fuller detail; — apart from
such a sketch, my plea for a reversion to the practice of earlier
and better times would lack a very strong element of support.
It will be recollected, in the first place, as I have elsewhere
observed, that the lay peers, who form the majority in a Com
mittee for Privileges, have been reduced to the position of dum
mies, practically sUenced, their votes being taken for granted as
blindly assentient to the expressed opinion of the law Lords.
There were disadvantages attending the less restricted system ;
but there were advantages also, an illustration of which has
been noticed in the fact that the recognition of the right of the

SECT. Ill, THE EAELDOM OP MAE, 373
CassiUis heir-male to that ancient earldom was arrived at, as
appears from Lord Hailes's Additional Case, on grounds conson
ant with Scottish law, through a majority of lay peers, influ
enced, I have Uttle doubt, by the words of Lord Marchmont as
against those of the law Lords, whose advice was grounded on
a view of the law of succession absolutely contradictory to the
law of Scotland, which they imported into the Eesolution itself,
as expressly worded for that purpose.
As the practice is now, the Committee for Privileges is
guided exclusively by the law Lords. An exception has grown
up in favour of one layman, the present Chairman of Com
mittees, Lord Eedesdale, in deference to his traditional know
ledge of the practice of the House and experience in cases of
peerage claims, and who gave his opinion or "judgment " on a
parity with Lord Chelmsford and Lord Cairns in the recent
Mar case. He filled the same office of chairman in 1853, on
the occasion of the Montrose claim, and I have often regretted
that he did not address the Committee on that occasion. I
have ever felt grateful to him for the pains, the fruitless pains,
he took to obtain a just consideration of various arguments and
facts affecting my father's claim in that year. The number of
law Lords in attendance varies ; and while the Chancellor as a
rule is always present, it seldom happens that all the other
Lords are able to pay consecutive attention to the pleadings
throughout, which in a case of intricacy is a very serious dis
advantage. In the Mar case the attendance of Lord Chelmsford,
Lord Cairns, and Lord Eedesdale was, I beUeve, unremitted
throughout the hearings.
The claim of a petitioner to the Sovereign for recognition as
the tenant of a Scottish dignity, when referred to the House of
Lords for their advice in the usual manner, comes before the
House in the form of a Case drawn up by the claimant's Scot
tish counsel, but signed likewise by his English advocates. But,
with two exceptions, Scottish counsel are not permitted by the
House of Lords to plead at their bar ; the claim must be advo
cated by EngUsh counsel, unless a claimant be fortunate enough
to secure the service of one or both of the two law officers of
the Crown for Scotland, the Lord Advocate and the Solicitor-
Ceneral for Scotland. Those English counsel, if at the summit
of their profession, and those who plead in peerage claims, are

374 THE EAELDOM OF MAE. let. xviii,
usuaUy overburthened with professional work, require in certain
cases that the Case and evidence of the claimant shaU be
mastered in the first instance by counsel of less distinction
than themselves, whose province is to " insense '' them with
the main points of the argument, and to act each as a " fidus
Achates " to his .^neas. There have been many instances in
which the English counsel have objected to the expositions of
law which they were caUed upon to advocate, have struck out
or altered passages in the original Cases, or taken their own fine
in advocacy, confident in their superior knowledge of what
would be most effective vrith the law Lords before whom they
plead — acting with the best intention for their cUents, but at
the risk of running upon sunken rocks, through their ignorance
of the foreign sea they were venturing upon. The greatest
possible consequence is attached to a counsel possessing the
ear of the House ; and when that is the case, the'temptation to
subordinate Scottish to EngUsh views is very strong with such
leaders. Between the claimant and his Scottish counsel with his
Case in his hand, and the Sovereign, the arbiter to whom he
professedly submits his claim, there are thus a series of three
transitional steps, each of which has a tendency to render the
claim and argument indistinct — first, the English sub-counsel,
or earwiggers ; secondly, the EngUsh counsel themselves ;
thirdly, the English law Lords before whom the latter plead—
for, as a rule, they are always EngUsh, and unversed, or only
superficially versed, in Scottish law, and apt to regard it with
contempt as compared with English. The tendency to dissi
pation and adulteration which Scottish doctrine is subject to
through this transmission of inteUigence, or rather this darken
ing of knowledge, is frequently aggi-avated by the extreme
difficulty experienced by the claimant, or by his Scottish
counsel, iu getting the English counsel to take in, and adopt,
and act upon the principles of Scottish law — opposed as many
of these are to the private rules and traditions of the House,
or to comprehend the constitution of the Scottish Parhament,
Scottish courts of law, and Scottish feudaUsm generally— the
system in which all the Scottish dignities are rooted. It was
my own happy experience in the Montrose claim to meet with
counsel who were willing to listen and capable of taking m the
peculiarities of law so essential to the appreciation of a Scottish

sect. III. THE EAELDOM OP MAE. . 375
case; but the prejudices to be surmounted were great, and the
awe in which a great English pleader is held by his brethren
in the profession is only second to that which many of those
pleaders themselves entertain for the law Lords in the House —
aU this rendering the inculcation of a simple but unfamiliar
point of Scottish law — a point upon which the whole case may
turn — upon a Committee for Privileges a very difficult achieve
ment. I am quite certain that in my own person nothing but
a persistence which no ordinary counsel of inferior rank would
have ventured upon, coupled with the indulgence with which
my intervention was accepted, could have enabled my father's
leading counsel to enforce the claim (for example) of the final
decreets of the Court of Session upon the deference of the
House of Lords, as of a Court supreme and without appeal in
Scottish dignities, in the manner they did in 1853^ — although the
two noble and learned Lords who advised the Committee for
Privileges disallowed the argument, under a rooted preconcep
tion that it was impossible that the Court of Session could
have possessed such a power !
The case being before the Committee for Privileges — the
Scottish law on which the claimant stands, and which the
legal luminaries of the House have repeatedly acknowledged
they are bound to follow, expounded, attacked, and defended,
aU by English lawyers, and as such at second hand, we have
next to consider who the law Lords are, the Chancellor and
others who advise the Committee as to the Eesolution. They
are, with the rarest possible exceptions, English lawyers, un
trained in the ancient feudal and peerage law of Scotland,
which is to them a foreign code — which they hear of not
unfrequently for the first time from the EngUsh counsel,
instructed by the Scottish, — and predisposed by their habit
of sitting on appeals from the decisions of the Court
of Session to hold the decisions of that Court before the
Union comparatively cheap and as subject to their own
revision ; whUe they forget altogether that they are not sitting
in judgment upon the claim before them, and that they are
merely members of a consultative body, commissioned by the
Sovereign, pro hac vice in each case, to report to himself as the
ultimate authority. With this prejudice to contend with, it
is not to be wondered at that these men, so able, so honest,

376 THB EAELDOM OF MAE. let. xviii,
so great in their proper department — who have usually attained
to a comparatively advanced period of life, unfavourable to the
assimUation of new ideas — and who are overwhelmed by multi
farious occupations incidental to the exalted posts and personal
influence due to approved abUity — should find it impossible
under these disqualifying circumstances to descend by patient
study beneath modern and English prejudice to the funda
mental principles which are binding upon a , Scottish court ot
inquiry, such as a Committee for PrivUeges is in a Scottish
claim. As matter of fact, they are dependent as a rule, for
their knowledge of the Scottish law they have to administer,
upon the pleadings of counsel — English counsel ; and when,
as not unfrequently happens, the counsel pleading before them
is staggered by some unexpected question started, involving
fundamental principles upon which his argument, or that of his
opponent, rests — a fallacy perhaps in -view, which he feels
impotent to deal with — a difficulty which a Scottish feudal
or antiquarian lawyer only could elucidate, they have to feel
their way, often with marveUous instinct and sagacity, towards
the truth, but often to be graveUed at the very threshold
through simple deficiency in that knowledge (on the part ahke
of counsel and of themselves) which would overleap the diffi
culty, and which counsel, unprepared for the emergency, is not
capable of supplying, — the miserable Scottish counsel and his
client, unable to speak, fuming in the background. It is a sad
exempUfication of the old experience of the bUnd leading the
blind, and both falling into the ditch. I need scarcely observe
that the theory of the perfect judge impUes a knowledge in
bim superior to that of the counsel pleading before him, so
that between their arguments he is able to distinguish and
affirm the truth ; and when they fall into error, to correct them.
But there can be no approach to this theory in the personahty
of the noble and learned Lords who practicaUy preside in
Committees for Privileges. Add to this, that as between Cases
drawn up by Scottish counsel for Scottish claimants, some are
drawn up by adherents of the orthodox, some by those of the
heterodox, school of peerage lawyers, these latter adulterating
or rather superseding the Scottish law by the introduction of
the private rules of the House of Lords enforced since 1762,
it would require a training and experience which the law Lords

SECT. IU. THE EAELDOM OF MAE. 377
cannot possess, to discriminate so as to do justice to the
orthodox arguments.
It has been in consequence of this second-hand and imper
fect character of the arguments addressed to Committees for
Privileges, and of the confusion arising from the contradictory
principles insisted upon by the partisans of the different schools
referred to, that the learned advisers of Committees for Privi
leges have been encouraged to assume that there was nothing
settled in the law of peerage in Scotland previously to the
Union, and to form rules of their own, which they adopted and
transmitted to their successors in the beUef that there was no
ascertained and soUd ground to stand upon in Scottish law — a
behef which would have been dispeUed at once if they had
ever even cursorily perused the standard institutional writers
of Scotland, or consulted — which they were bound to do,
according to the analogy of English procedure in dignities —
the Scottish judges on doubtful points. But this they never
did, and thus drifted upon shoals of error, upon which they buUt
what they mistook for beacons of enlightenment, in the shape
of rules and traditions which have led subsequent generations
astray. What is most to be lamented is that neither in the
CassiUis nor Sutherland claims, nor in the Montrose nor the
Mar, where questions of the utmost importance arose upon the
construction of Statutes, of legal decisions, and of the simple
laws of Scotland, have Committees for PrivUeges ever sought
the advice and guidance of the Judges of the Court of Session
on the same principle that they have in various cases sought
the assistance of the Judges of Westminster Hall in English
cases of dignity. Had this been done, there cannot be a doubt
that the House would have been spared from committing itself
to the private rules of interpretation and guidance which they
have now acknowledged themselves incompetent to originate,
and which, therefore, sink into nothingness when confronted
by the law of Scotland and the Treaty of Union.
The result then is that Committees for Privileges on peer
age claims, and especially on Scottish claims, exhibit the
spectacle— not of duly constituted courts of law, acting on
principles of solidity and permanency, but of consultative
bodies, shifty, nebulous, and erratic, without any assigned or
permanent status in the firmament of justice — bodies which

378 THE EAELDOM OF MAE. let. xviii,
hold themselves to be bound by no precedent or authority,
claiming a "large" (I may say, an unlimited) "discretion,"
sitting loose occasionally even to their own precedents and
traditions, so that there can be no confidence on the part of
those who calculate on tbeir consistency, when submitting their
claims to their consideration, that the ruling of yesterday wiU
be the same to-day, or to-morrow — autocratic in practice, if
not in principle, and practically irresponsible — there lying,
even under the most favourable view, no avaUable appeal from
the Eesolution, inasmuch as, although the Sovereign may refer
back a case for reconsideration (I speak according to the
ancient understanding) either to the House or some other body,
or may do that by personal and independent act which shall
appear to be just and right in his eyes, stiU such intervention
is practically impossible; and were it possible, it would be
merely an appeal from one of the law Lords, the Lord Chan
ceUor, sitting in the House of Lords, to the same learned Lord,
the Lord Chancellor, as keeper of the royal conscience, sitting
as it were in tbe royal antechamber, so that to count upon such
an intervention or remedy upon an appeal from a Eesolution
of the House reported to the Crown would be a delusion.
Moreover, the House has now repudiated any jurisdiction on
claims otlier than their own — excluded the Sovereign virtually
from the view of the claimant, and proclaimed itself a court of
first and ultimate instance, its decisions final and irreversible,
right or wrong — a Star-Chamber, in short, but without the
presence of the Sovereign, who, according to English principle,
is first, last, and everything in honours.
Such is the complication of disadvantages and disqualifica
tions which places, in the first instance, the noble and learned
Lords intrusted with the grave responsibility of advising the
Crown upon peerage claims in a thoroughly false position, and
deprives (as it will now be evident) the claimants of Scottish.
dignities of that protection and security to which they are
entitled, not merely by the laws of their country, under the
protective sanctions of the Act of Union, but on the broadest
principles of universal justice and equity, and which security
is absolutely dependent on a recognition on the part of Com
mittees for PrivUeges of the law and practice in cases of
Scottish dignities, and that reverent observance of the decisions

SECT. HI. THE EAELDOM OF MAE. 379
and precedents of the Court of Session, as binding on them
selves, which they have now for many years repudiated. We
have an iUustration of the results in the present case of Mar,
in which two noble and learned Lords, and a third noble Lord,
the Chairman of Committees, have attempted, in perfect good
faith, to undo what the Queen of Scotland, with full concur
rence and co-operation of her Council and of the supreme
civU court, the Court of Session, and approval and acqui
escence on aU sides till the present moment, did and carried
through, in vindication of justice against one hundred and
thirty years of oppression by the Crown and Government, —
and to this effect, that if the Eeport be acquiesced in, Scotland
wiU be deprived of her oldest surviving dignity — a dignity to
which the nearest in approach on the score of antiquity is that
cf the De Courcy s in Ireland, dating from 1171, while the
earhest in England is of still later origin. Of the general
ability, the personal integrity, and the desire to do justice,
which have as a rule characterised the noble and learned Lords
whose opinions on these claims not I, but the voice of Themis,
sounding from distant ages, has denounced, there cannot, I
again and again repeat, be a question ; but the system has been
stronger than the men.
It may appear presumptuous in me, a mere layman, to write
all this; but my friend and early teacher, Mr. EiddeU, held
equaUy strong opinions as to the disquaUfications attaching to
claimants through the constitution of Committees for PrivUeges,
and the inconvenience to a Scottish claimant of having to
plead at second, nay in some cases at third, hand, and each of
these English hands, before the House of Lords.
Section IV.
Proper Remedy. — To resort to the Court of Session.
The reader wUl now, I think, after perusal of this review,
appreciate, as I have anticipated, the risks attendant upon
claims to Scottish dignities preferred through petition to the
Crown, and the absolute necessity incumbent upon them iu
self-defence, and more especiaUy since the arrogation of abso
lute jurisdiction to itself in such claims by the House of Lords,
to resort once more to the ancient judicatory peculiarly appro-

380 THE EAELDOM OF MAE. let. xvm.
priate to the consideration of Scottish dignities — the Court of
Session ; in resumption of the usage which has been discon
tinued since the Lovat decision of 1730 and the wakening of
the precedency question between the Earls of Crawford and
Sutherland, involving the right to the latter dignity as between
the heir-general and the heir-male, in 1746 — a discontinuance
solely imputable to the action of claimants, not to any laches
on the part of the Court itself. The remedy lies at the very
threshold of Holyrood.
The Court of Session, as contrasted with the Committee for
Privileges of the House of Lords, is a Court of Scottish law, of
unimpeachable jurisdiction, under whose ample dome causes
are heard, and reheard, if necessary, on appeaL with the fuU
attention and united wisdom of the entire College of Justice ;
and which, by a peculiar privUege, in birthright from its
mother the law of Eome, and in necessary complement of that
statutory independence which usage only (not law or constitu
tional authority) has impeached, is entrusted with the nohile
officium of equity, — thus including every provision for impartial
and sufficient justice.
That the Court of Session was a competent tribunal in
Scottish dignities, without appeal to King or ParUament, till
the Union, has been shown in a former Letter, and affirmed, to
cite no other testimony here, by Lord Mansfield. The privi
leges of the Court were expressly reserved by the Treaty of
Union. The Court sustained its jurisdiction in dignities, as 1
have there also shown, subsequently to the Union; and the
Lord Advocate, Duncan Forbes, eloquently vindicated it in
1733. As no appeal lay to the Scottish ParUament before the
Union, so no appeal lies to the House of Lords since ; and if
it were attempted to appeal to the House from a decision of
the Court of Session upon a claim to dignity, on the ground
that there is no distinction established between dignities and
other heritage, the answer would be, first, that there is no
precedent whatever for an appeal from a final judgment of the
Court in a case of dignities, either to the Parliament before, or
to the House of Lords since the Union, and that such power
of review could only be bestowed upon the House of Lords by
an Act of the Legislature, for the manifest benefit of the people
within Scotland — the indisputable precondition to such enact-

SECT. IV. THE EAELDOM OF MAE. 381
ment; and even on the hypothesis that such an appeal could
legally take place, the position of the claimant would be far
more tolerable than under the present system, as the case
would have been fully investigated by the Lords of Session by
Scottish law before it was sent to the House of Lords. But
there woidd be much to discuss before that could be thought of.
There would Ue no question of constitutional difficulty in
resorting to the Court of Session instead of the Crown in claims
to Scottish dignities. It would be, in fact, as I have urged, a
return to constitutional practice ; for the Treaty of Union gives
no sanction to any tribunal for such cases except the Supreme
CivU Court of Scotland. It was admitted by Lord St. Leonards
iuhis speech on the Montrose claim in 1853 that the Treaty
of Union gave no sanction to any deprivation of the Court of
Session ofthe right to judge in peerages, if they possessed the
right previously to that Treaty, which he doubted, notwith
standing the positive evidence brought forward by the claimant
on finding that doubt was entertained respecting a matter which
ought to have been familiar to the humblest advocate dealing
with a Scottish peerage claim. In his bewUderment at finding
the law of Scotland and the traditions and prejudices of tbe
House of Lords brought into opposition in the matter of the
decreet of the Court of Session in 1648, the noble and learned
Lord asked, " How did this House get any jurisdiction in the
matter of peerage claims ? " The question well iUustrates the
stratum of feeling out of which the opinions deUvered during
the recent debate on the Duke of Buccleuch's Eesolution and
the previous pseudo-legislation of 1847 took their origin. "If
it" (ie. the jurisdiction), continued Lord St. Leonards, " existed
before the Act of Union " (in the Court of Session), " why should
it not exist now ? Why should it not have remained ? " — ques
tions to which the noble and learned Lord complained in his
speech to the Committee that he had received no answer,
although the claimant had answered them categoricaUy when
the questions were originaUy put during the previous discussion
—questions on his repetition of which Lord St. Leonards added,
in that culminating hour, " There is nothing in the Treaty of
Union to disturb the right and power of the Court of Session,
if that Court really had the jurisdiction." To these questions
and to this observation I myself replied afterwards iu a paper

382 THE EAELDOM OF MAE. let. xviil
subjoined to my Address to Her Majesty, prefixed to my Eeport
of the Montrose claim, and in which I gave full proof, not only
how the Court of Session came to have been possessed of the
jurisdiction in dignities, which I then asserted, and now once
more assert for it, but how the right of pursuing claims to dig
nities by process before the Court, and the correlative right of
the Court to adjudicate upon such claims, to the full extent of
its statutory jurisdiction, in the present day, are not only not
disturbed, but are protected by the Third, Eighteenth, and
Nineteenth Articles of the Treaty of Union, — have been acted
upon since the Union — and although in disuse and dormant,
are not extinct, but may be caUed into li-dng action at any
moment by claimants to Scottish dignities. I venture to sub
mit that it is most desirable that they should be so recaUed; for,
however soundly a Committee for Privileges may report on
claims dependent on simple genealogical probation, or where
peerage law is the same both ia Scotland and England, it re
quires a very different and speciaUy traiaed tribunal to adjudge
in cases where, as in almost all Scottish claims, the laws of
Scotland and those of England, to say nothing of the private
rules of the House of Lords, are at variance. Moreover, I must
repeat, if there is one principle more evident than another m
the constitution and practice of legal tribunals, as -viewed at
least by a secular eye — it is this : that the moral justification
of the Ucence accorded to counsel in their presentments of law,
or what they qualify as law, depends on the presumption that
the judges before whom they plead are competent, by profound
knowledge of the law which they administer, to expose fallacies,
reprove misstatements, and place the due construction upon the
facts, the evidence, and the law submitted to them for adjudi
cation, — protecting the clients on either side from being placed
at legal disadvantage ; and that knowledge, to be profound,
must be the result of careful training in that law, large experi
ence in its practice from ancient times, and thorough acquaint
ance with and reverent observance of its precedents — quah-
fications which no foreign judges, trained exclusively m
exotic law, can be expected to possess, and which certainly
do not and cannot attach as a rule to the noble and learned
Lords who advise Committees for PrivUeges on claims to Scot
tish dignities. I feel that the tendency of these suggestions is

SECT. IV. THE EAELDOM OF MAE. 383
to impose additional labour on the learned Lords of the Session ;
but I misdeem of them much if they would be disposed to shut
their ears to the suits of clarmants of the ancient dignities of
theh country ; and from the peculiar training and traditions
of the Scottish bar, especially of the orthodox succession, there
can be little doubt that they would rapidly recall and apply
with wisdom the principles and precedents appropriate to peer
age claims as in force before the Union, as well as respect the
judgments and maintain the res judical/^ in their integrity,
whieh their predecessors have promulgated in such cases, based
upon these principles.
That recourse to the Court of Session is, I may now add,
peculiarly appropriate in the case of claims to Scottish dignities
may additionally be shown by the consideration that it is by a
misapprehension of the status of the peers and peerages of Scot
land that claims to them should be submitted to the arbitra
ment of any Sovereign, however wise and just, and however
theoreticaUy supposed to dispense justice. The Kings of Scot
land expressly divested themselves, by the Act of ParUament
constituting the Court of Session, of the prerogative of adminis
tering justice in dignities, as in other civil causes, delivering
over aU such right to the judgment of the Session, by which
causes were to be decided thenceforward, in the usual phrase,
" as accords of law ; " and the right of claimants to resort to the
Session, and the correlative obligation of the Court to deter
mine such causes, are included among those private rights
which are protected by the Treaty of Union, as already shown.
Moreover, if, as already stated, it has been by aUowance of
claimants that they have submitted their pretensions to the
arbitration of the Sovereign, under the implied compact that
they should be adjudged by Scottish law, it has been, by what
must be considered as a personal concession on the part of the
Sovereign, condescending to act as judge and arbitrator as if in
a comparatively private controversy, that the Sovereign has
determined upon such claims, irrespectively of the legitimate
Court, the Court of Session. It has been, in fact, irregular
fi'om first to last, although sanctioned by custom, like the
system, for example, of Scottish appeals to the House of Lords
from the Court of Session : inasmuch as, since the attempt of
Charles ii. to resume the original judicial authority of the Crown

384 THB EAELDOM OF MAE. let. xvm.
by an Act passed in 1 681, and the annulment of that Act at the
Eevolution, "it is now," to quote the words of an acknowledged
authority on the subject ofthe Court of Session, "unquestionable
law, not only that the King cannot personally exercise the judicial
power in the proper courts of the law, but that he cannot, without
the consent of the Estates in ParUament, delegate a jurisdiction to
any court different from those which have been used and estab
lished," 1 — the effect of this being that the Sovereign cannot, and
stiU less can the House of Lords, as assuming to inherit and
supersede his jurisdiction, resume from the Court of Session the
right of judging in claims to dignities, which his ancestor sur
rendered to the Court in 1 5 3 2, and determine such claims by that
judicial power which English custom (for Lord Chief-Justice
Holt withholds the sanction of law) allows in such cases. There
is thus nothing to prevent recurrence to the Court of Session;
and I submit that it is by law, and by a legal tribunal, and as
matter of civil right — and not as based on privUege in any
sense nor adjudicable by a Sovereign or his delegates — nor as
faUing under the cognisance of the House of Lords in any
shape, that Scottish peerage claims should be tried and deter
mined — the resort thus suggested being a matter rather of
legal obUgation than of expediency, although' most expedient,
as I have above demonstrated.
There is much more that might be said on this interesting
topic ; but I have already said enough to suggest thought, which
is what I chiefly aim at.
Lastly, I would submit that the Court of Session is the
proper tribunal to which all questions arising upon claims to
vote at Holyrood ought to be referred for settlement, and not
the House of Lords. The right to vote, or deternUnation on
the right to a dignity, is a civil matter pertaining to the courts
of law, and not to the House of Lords. The election of the
Scottish Eepresentative Peers is a matter privative to the
Peers of Scotland, and as Lord Selborne said at the debate of
9th July 1877, the House of Lords has simply to accept the
results of the election, not to preside over or interfere in the
process. All questions of right to peerage or votes were de
cided by the Court of Session up to the date of the Union, and
never by the Parliament or any section of the ParUament;
> Glaasf ord's Constituti and Procedure of the Scottish Courts of Law, p. 93.

SECT. IV. THE EAELDOM OF MAE. 385
no power was taken away from the Court of Session by the
Treaty of Union or conferred upon the newly-constituted
House of Lords of the United Kingdom, either in this or any
other matter affecting Scottish dignities. If it had been in
contemplation that the House of Lords should exercise a con
troUing power over the elections, that would have been con
ferred at the time ; but the temper of the Scottish Parliament
at the time of the Union is a sufficient indication that it would
have been useless to propose it. The very fact that the pro
tests upon the Books of the Scottish Parliament, and transferred
to those of the House of Lords in 1708, were protests for
remedy of law at the hands of the Session, and that the House
recognised their validity and the legitimate authority of the
Court of Session in the case of Sutherland v. Crawford and
Erroll as late as 1771, is a sufficient indication that all such
questions were to be settled by the Court of Session, and that
the Court of Session is the proper tribunal at the present
moment. Again, the Lord Clerk Eegister, as appointed to
preside at the elections and receive and register the votes of
peers, has been subjected by no Act of Parliament to tbe dicta
tion of the House of Lords, and is bound to act in accordance
with the higher obligation of the laws and" institutions of his
country, as reserved by that Treaty which I am compelled to
take my stand upon in this defence of the venerable Peerage
to which I have the honour to belong.
I have previously pointed out that the powers alleged as
having been conferred on the House of Lords by the Act of
1847 — powers much more Umited than supposed by the Select
Committee of 1877 — must fall with the Act itself, that Act
being based on the assumption that neither the Crown nor the
Court of Session has any concern in the subject-matter of the
Act, and the Act proceeds from a Parliament precluded by
prior obligation from enacting as it did— the Statute being
thus nuU and void, as passed ultra vires of a Parliament non
hahentis potcstatem.

Thus, my dear Lord Glasgow, I have fulfiUed the pledge
I undertook, when engaging your attention to the foregoing
VOL. II. 2 B

386 THE EAELDOM OF MAE.
Letters in reply to Lord Kellie's address to the Peers of Scot
land. If the conclusions I have come to in regard to the lawful
successor to the Earldom of Mar are at variance with those of
Lord KeUie and the House of Lords, the test has been supphed
in the declaration of the law of Scotland as given in the second
Letter of the series. I put the question at the commencement.
Which is to prevail, the law of Scotland or the private rule of
the House of Lords ? and the provisions of the Treaty of Union
gave the answer. It was impossible for me to avoid treating
of matters brought incidentally under my notice by Lord
KeUie's Letter, more especiaUy the Eeports of the House of
Lords in the claims to the Earldom of Glencairn and Dukedom
of Montrose, and the general question of precedent as between
the House of Lords and the Court of Session. The whole
argument is now before yourself, the Peers of Scotland, and the
public, and I submit it with confidence to the consideration of
my countrymen. I end these Letters, as I commenced them,
with a disclaimer of personal feeUngs, and a fuU confidence
that I believe every one to have acted honourably and in a fuU
conviction of being in the right. I claim the same concession
as due to me from those against whose opinions and prejudices
I have stood in opposition. It is time this protracted discus
sion should come to an end, and I take my leave accordingly
with the expression of all respect due to your Lordship's high
official position, and of the personal esteem and regard with
which,
Deak Loed Glasgow,
I have the honour to remain.
Your obedient and sincere friend and servant,
CEAWFOED AND BALCAEEES.

APPEI^DIX.

APPEI^DIX.

No. L
LETTERS BY LORD REDESDALE.
(1.)— From The Times of 6th July 1877.
Lokd Eedesdale writes to us : —
" In the observations addressed to you by Lord Crawford in
The Times of Monday, he, in fact, denies the right of the House of
Lords to determine Scotch Peerage claims. He assumes that the
ancient Earldom of Mar is still in existence. The evidence before
the Committee of Privileges has been held by tbe House to prove
the contrary. He assumes that in Scotch Peerage cases the pre
sumption is in favour of heirs-female. Lord Mansfield in the
Sutherland case, said ; — ' I take it to be settled, and well settled,
that when no instrument of creation or limitation of honours
appears, the presumption of law is in favour of the heir-male, always
open to be contradicted by the heir-female upon evidence shown
to the contrary. The presumption in favour of heirs-male bas its
foundation in law and in truth.' I think most persons will con
sider the dictum of Lord Mansfield more to be relied on than that
of Lord Crawford. From the death of the last heir-male in 1377,
to the creation of Lord Erskine as Earl of Mar iii 1565, there is no
proof of any one being in Parliament as Earl of Mar, except under
new creations to persons in no way descended from tbe old Earls.
It is difficult to imagine any stronger proof of extinction. The
placing of the Earl of Mar under the Decreet of Ranking is un
questionably erroneous. Tbe date assigned to it was 1457, not
1404, as stated by Lord- Crawford. It -ivas not the date of tbe
old Earldom, nor that of Queen Mary's creation, though nearer to
the latter than tbe former. All that the Duke of Buccleuch's
Eesolution does is to direct that the title shall be called in tbe
place proved to belong to it, and not in that which has been
shown not to be the proper date of any Earldom of Mar. Lord
Crawford's assumption, that by the Decreet of Ranking a precedence

390 APPENDIX.

NO. I.

of 1404 was allowed, is for the purpose of making it appear that the
Commissioners on that occasion accepted the charters of surrender
and regrant of the territorial comitatus by Isabella in that year
as proving that the honour went with the land. They, however,
placed tbe Earl of Mar after the Earl of Errol, created in 1452,
the Earl Marischall created in 1454, and the Earl of Caithness
of about the same date, giving to Mar one of 1457. In refusing
to recognise the peerage as being connected with the territorial
comitatus in the person of Isabella, wbo was the heir of the last
Earl of male descent, they must be held to have considered the
ancient Earldom to have been extinct. It is impossible to imagine
on what grounds they gave the precedence of 1457, when certamly
there was not any Earl of Mar in existence. If they had had the
evidence before them which was before the Committee of Privi
leges, they must have come to the conclusion adopted by the
House in 1875. It was proved by that evidence that Lord
Erskine sat as such in the Queen's Council in 1565, on the 28th
of July, and on the 1st of August sat as Earl of Mar. The restora
tion of the territorial comitatus to him as heir to Isabella was on
the 23d of June, more than a month before be became Earl That
the ancient Earldom was not restored to him was shown by his
sitting at subsequent Councils as junior Earl. Further proof that
he was created at that time on the occasion .of the Queen's mar
riage to Darnley is to be found in a letter from Thomas Randolph,
the agent in Scotland of Queen Elizabeth, to the Earl of Leicester,
dated the last day of July 1565, giving au account of all that
occurred at the marriage, in which be says, ' to honour the feast,
the Lord Erskine was made Earl of Mar.' With this evidence
before tbe Committee it was impossible to come to any other con
clusion than that expressed by the Lord Chancellor, who said, in
giving his judgment, ' I am of opinion tbat it is clearly made out
that the title of Mar wliich now exists was created by Queen Mary
some time between the 28th of July and the 1st of August in the
year 1565. It appears to me perfectly obvious from every part
of the evidence before us tbat in the greater part of the month of
July and before that creation there was no title of Mar in exist
ence.' The Resolution proposed by the Duke of Buccleuch ouly
gives the necessary instructions to the Lord Clerk Register, in
accordance with the decision of the House, following all precedents
in such cases, and in no way prevents Mr. Goodeve Erskine esta
blishing his right to the ancient E<arldom of Mar at some future
time if he can find evidence to prove it."

APPENDIX. 391

(2.)— LETTEE, Earl oe Eedesdale to Eael of Crawford.
Park Place, St. James's, May 19th, 1879-
Dear Lord Crawford, — I have just seen your protest
against Lord Mar's vote at the last election of a Representative
Peer. Having given a detailed judgment in the Committee of
Privileges on the case, I request your consideration of tbe following-
observations on your statements.
The origin ofthe ancient Earldom of Mar is lost in its antiquity.
There is no record of its creation.
You state the law to be in such cases as follows : —
" The rule and presumption of succession in Scottish law is in
favour of the heir-general, aUke in lands and dignities, where no
counter right can be shown by legal evidence in favour of the
heir-male." The Earl of Mansfield in the Sutherland case thus declared the
law in regard to dignities : —
" I take it to be settled, and well settled, tbat when no instru
ment of creation or limitation of honours appears, the presumption
of law is in favour of the heir-male, always open to be contradicted
hy the heir-female upon evidence to the contrary. Tbe presump
tion in favour of the heir-male has its foundation in law and in
truth." You ¦will excuse me for saying that I consider Lord Mans
field's opinion on such a point of greater authority than yours.
The last male heir of the ancient Earldom of Mar died in 1377.
Since that date no person has ever been acknowledged in Parlia
ment, either before or since the Union, as holding the ancient
Earldom. This experience of more than five centuries affords con
clusive proof that it is extinct in accordance with the law as laid
down by Lord Mansfield.
Between the death of tbe last heir-male and the creation of
Lord Erskine in 1565, at least three Earls of Mar were created,
proving that during that period the ancient Earldom was held to
he extinct. You contend that John Earl of Mar was held by the Commis
sioners for the Decreet of Ranking to possess the ancient Earldom,
thus stating his case : —
" In virtue of the documents produced by him (i.e. the charter
of Isabella in 1404, and retours by which he was served her nearest
lawful heir), the Earl of Mar was placed on tbe roll immediately
after the Earl of Sutherland and before the Earl of Rothes, the
Commissioners thus assigning him the date of the charter of 1404

392 APPENDIX. no. i.
as his proper place of precedency. The ranking of the Earl of
Mar in the Decreet of Ranking cannot now be challenged in any
court of the United Kingdom."
I am surprised at your making such a statement, which I will
show by the clearest evidence to be incorrect.
The Commissioners did not give the Earl of Mar the preced
ence of 1404. You are right as to his having been placed before
the Earl of Rothes (created in 1458). Your statement that he
was placed next below the Earl of Sutherland is misleading.
That Earldom did not in the Decreet of Ranking hold the high
precedence allowed to it by the House of Lords in 1771. Both it
and the Earldom of Mar were placed below the Earldom of Errol
(created in 1452). I defy you to deny this. How then can you
hold tbat tbe Commissioners gave the Earl of Mar the precedence
of 1404 ] Surely you must know that in all Scotch Peerage lists
the date allowed to it has been 1457.
There can be no doubt that Lord Mar endeavoured to obtain
a report from the Commissioners in favour of his claim to the
ancient Earldom, and it is equally clear that they declined to do
anything that could be held to support it. Refusing to give him
a precedence founded on Isabella's charter of 1404, they thereby
declared that they considered that the ancient Earldom became
extinct on the death of her grandfather, the last heir-male, and
that she had not inherited the peerage-earldom with the territorial
comitatus dealt with in that charter. It is absurd to say that in
allowing a precedence of 1457, they acknowledged the existence
of the ancient Earldom. I hold that the selection of that preced
ence was to prevent any such assumption. They took that date
because there was then an Earl of Mar in Parliament ; James the
Second having before tbat period so created his third son, who
died without issue in 1479. Thus they connected the precedence
they gave Lord Mar with an Earldom, to which no Erskine could
at any future time make out a claim, and as that peerage was ex
tinct no one was injured by their so connecting it. If they had
taken a date when there was no Earl of Mar in Parliament, they
might have been held to admit that he had a claim to a dormant
title, which could only have been tbe ancient Earldom. By
allowing him the precedence of 1437, they made him a worthless,
because unfounded grant in no way connected with the ancient
Earldom, and this decision of the House of Lords has declared
this. I shall be much obliged to you for a reply to these observa
tions. — Believe me, my dear Lord Crawford, yours very sincerely,
Eedesdale.

so. II.

APPENDIX. 393

No. II.
DEBATE ON THE MOTION OF THE DUKE OF BUCCLEUCH
RELATIVE TO THE EARLDOM OF MAR.
Hov,se of Lords, 9th July 1877.
Duke of Buccleuch. — My Lords, I rise to move the Resolu
tion of which I have given notice, namely, that " This House doth
order that at all future meetings of the Peers of Scotland assembled
under any Eoyal Proclamation for the election of a Peer or Peers
to represent the Peers of Scotland in Parliament, the Lord Clerk
Eegister, or the Clerks of Session officiating in his name, do call
the title of Mar in the Eoll of Peers of Scotland called at such
elections, in the place and precedence to which it has been declared
by the resolution and judgment of this House on 26tli February
1875 to be entitled, according to the date of the creations of that
Earldom, and in no other place, with a saving nevertheless as well
to the said Earl of Mar and Kellie as to all other Peers of Scotland
their rights and places, upon further and better authority showed
for the same."
My Lords, I will not enter into the controversy which has
been raised between the rival claimants to the Earldom of Mar,
nor will I detain your Lordships by traveUing through the interest
ing details connected with the recent contest for that ancient
Earldom. At the death of the last Earl of Mar some few years
ago two claimants appeared to the title ; one of them was the Earl
of KeUie, and the other Mr. Goodeve Erskine. They put forward
their claims on different grounds and under different circumstances.
It is not my intention to enter into a discussion of that matter.
The case was heard by the Committee for Privileges of this House,
and the proceedings extended, I believe, over several days. The
Committee for Privileges were assisted by counsel on both sides,
who produced at the bar upwards of 500 documents, charters, and
writs. It was then decided by the Committee for Privileges,
whose decision was afterwards ratified by the House, that the Earl

394 APPENDIX.

NO. II.

of Kellie had made good his claim to the Earldom of Mar, which was
created by Queen Mary in 1565, and that Mr. Goodeve Erskine
bad not made good his opposition to that claim. Now, my Lords,
what is usually done under those circumstances by this House ?
When a peerage case is decided in favour of a claimant, it is usual
for an order to be sent at once from this House to the Lord Clerk
Eegister in Scotland, to insert that peerage according to its proper
place in order of date on the roll of the Peers of Scotland, which
is called at the election of Eepresentative Peers. That has been
done on several occasions. I have a list here of those peerages
which have been so inserted at different times. I wUl not weary
your Lordships by reading the list of those peerages, but it shows
that some have been entered which are not to be found on the
Union Roll.
But before I enter upon that I may say, with regard to the
Union Roll, that a great misconception prevaOs as to what that
Roll is. It is not embodied in the Act of Union ; neither is it to
be found in the Treaty of Union. It is a copy of the great Eoll
that used to be called daily in the ParUament of Scotland when
the House was sitting. It was, I think, in May of the year 1707
that the Act of Union was passed, and about the end of that year
an order was sent from this House to the Lord Clerk Eegister,
directing him to send up an authentic list of the Peerage of Scot
land as it then stood. That was in December 1707. My Lords,
in March 1708, the list was sent up to this House, and was
referred to a Committee of this House, who reported upon it, and
the House accepted it as au authentic list of the peerage as it then
stood. The peerages were entered in it according to the preced
ence given them by what was called the Decreet of Eanking of
1606, which was not a final Decreet of Ranking or precedence;
it -n-as styled an " interim " decreet. It was open to any Peer who
thought himself aggrieved as being put too low, or who thought
that be was not put in his proper place, to reduce that decreet.
This was done in the case of tbe Earl of Buchan, who brought
before the Court of Session his case for reducing the Decreet of
Ranking, because he was put below sundry Peers, and the case
was decided in his favour, aud that decision -^'as confirmed and
ratified by an Act of Parliament passed by the Scottish Parlia
ment in 1633. I mention this, my Lords, because it is an
instance showing that the Decreet of Ranking was not final
Moreover, peerages have been added to the Roll since the
Union, the names of which are not to be found in the original
list. Lord Dingwall was added in 1714 ; Lord ColviUe of Ouhoss
and Lord SomervUle in 1723; the Marquess of Queensberry m
1812 ; Lord Polwarth iu 1835 ; the Marquess of Huntly in 1838;

xo. II.

APPENDIX. 395

Lord Herries in 1858; and Lord Kinloss in 1868. I do not
mention other peerages which have been, I should say, rather
restored to the Roll than added to it, namely, peerages which had
been under an attainder which was reversed.
My Lords, the motion which stands in my name is a resolution
that the Earl of Mar may be placed by the Lord Clerk Register in
the Eoll, according to the date assigned to the peerage, by the
judgment of this House, the judgment of this House bearing that
the peerage dated from the time of Queen Mary in 1565. Any
person who -will take the trouble of looking at the Decreet of
Eanking, could have uo hesitation in saying, tbat the position of
the Earldom of Mar upon that Roll is erroneous. If, as is asserted
hy a noble Lord whom I do not see in his place here, the Earl of
Crawford, it is as old as the year 1014, it is a very extraordinary
thing, that in the Decreet of Ranking, the Earl of Mar was put
below the Earl of Crawford, for the Earl of Crawford of that day
was one of those very Peers who were present at the making of
that Decreet of Ranking. The Earl of Mar is put in the Decreet
below the Earl Marischall, and the date of his peerage is 1457 or
1458 ; that shows that the Decreet must have been wrong in that
respect. I should say with regard to this Roll which was sent up
by order of the House of Lords, the Court of Session gave this
explanation of the Roll which they sent up ; they said that the
only document they could find was a sheet of paper without signa
ture, and -without date, but it was what was believed to be the
Eoll. I happen to have what I believe is very rare now, a copy
of the printed list of the Scottish Peers supposed to have been
called by the Clerk of the Parliaments, and there I see the Earls
appear in this order : Crawford, Erroll, Marischall, Sutherland,
aud Mar. Many a time at elections of representative Peers I have
heard the different Peers protesting against other Peerages being
called before their names. At the very last election the Earl of
Morton protested against the Earl of Mar being called before the
Eari of Morton.
All I ask your Lordships to do is, to send an order to the Lord
Clerk Register, according to the precedents of former times,
directing him at all future meetings of the Peers of Scotland, for
the election of Eepresentative Peers for Scotland, to call the title
of Mar in the place to whicb it has been declared by the Resolu
tion of this House, on 26th February 1875, to be entitled,
according to the date of its creation, and in no other place, and
then, my Lords, there follow these words, " with a saving never
theless as well to the said Earl of Mar and Kellie as to all other
Peers of Scotland, their rights and places, upon further and better
authority showed for the same." This would uot interfere with

396 APPENDIX. j,o „
any other peerages which either are in existence or may he
created. If any gentleman claims the ancient Earldom of Mar
and can prove his title to that peerage, there is nothing to prevent
his claiming it, and if he has the power of proving his claim there
is nothing to interfere in any way whatever with his doing so.
My motion only relates to the peerage which has been adjudged
by this House to be held by the Earl of KeUie.
Marquess of Huntly. — My Lords, I think it is a matter of
regret, that upon a subject affecting Scottish Peerages there should
be any division of opinion in your Lordships' House. But I think
I have an apology for opposing the noble Duke on this occasion in
the arguments wliich he has himself brought forward ; for, if there
had not been two sides to this question, he surely would not have
entered into any controversial matter in proposing the plain
resolution which he has submitted to your Lordships. He has
gone, to some extent, into a historical sketch, dating from 1606 to
1875, but that historical sketch, if he wUI allow me to say so.
bears two sides, and I think I shall be able to put another view of
the case before your Lordships upon the present occasion.
My Lords, I venture to move the previous question to this
resolution, and I do so upon one ground, which I think is import
ant, namely, that the resolution is ultra vires of your Lordships'
House. (Hear, hear.) Before foUo-wing the noble Duke in his
historical sketch, I will take this exception, that this petition is
not, as is usual in cases of petitions of tbe same sort, a petition to
the Crown. I believe there is hardly an instance of a petition of
this sort not having been a petition to the Crown, and referred by
the Crown to your Lordships' House. This is a petition presented
direct to your Lordships, and I take that objection to it as a pre
liminary objection.
Now, my Lords, the noble Duke has referred to the previous
cases. I have looked tlirough those pre-vious cases, and I have
here a return to your Lordships' House, which it is rather difficult
to get, showing all tbe peerages which have been added to the
Union Roll since the date of 1707. I find, my Lords, that there
is not a single instance among the seven peerages which have been
added of a peerage having been struck off the Union Eoll, on
which it stood at a certain date, and having been inserted at a
date later than that at which it originally stood. The noble Duke
mentioned a number of those peerages, but he left out two of them.
1 will not go through them again, but I can say .safely, without
contradiction, tbat in every instance when one of those peerages
was inserted upon the Union Eoll of Scotland, and a vote as a
Representative Peer allowed in respect of it, the peerage was
either in abeyance at the time when the Union Roll was made up,

NO. II. APPENDIX. 397
or it was a peerage which has been altogether added to the Roll
since that time. There is no instance of a peerage having been
struck off the Union Roll and added at a later date than that at
which it stood in the original Roll.
My Lords, the noble Duke said, and said correctly, that the
ranking ofthe Earldom of Mar on the Roll was after 1457, and I
would wish here to join with the noble Duke, and to say that I do
not desire to enter into any controversial point as to Mr. Goodeve
Erskine's claim, or that of the Earl of Kellie. I only wish to
bring the matter before your Lordships' House as a matter affect
ing the privileges and rights of Scottish Peers. Now, my Lords,
the Decreet of Ranking dated in 1606 was a decreet issued by
Commissioners appointed by King James i. of England, who
inquired into the standing of all Scottish Peers, and I maintain
that it was a judicial decree of very great importance — indeed, of
very much greater importance, I think, than the noble Duke seems
to attach to it. That Decreet, dated 1606, fixed the Earldom of
Mar at about 1457. My Lords, the Peer whom it is proposed you
should aUow to vote at the election of Representative Peers of
Scotland, dates his peerage from 1566. Is it in accordance with
common sense to suppose that a Decreet of Commissioners carefully
inquiring into the matter ouly forty-one years after the creation of
a peerage in 1565, should actually put down that peerage as of
1457? I think, and I believe the majority of your Lordships
wUl agree with me, that there must have been men living in Scot
land at the time of the making of the Decreet of Ranking who
were fully aware of what Queen Mary did with regard to a crea
tion of the Earldom of Mar iu 1565. If so, I am surprised that
no mention is made of the matter, but they distinctly, in the
Decreet of Ranking, put down the peerage, as the noble Duke
said, as of the year 1457. (Hear, hear.)
But, my Lords, there is a more important point still arising
upon this Resolution, and it is this — I do not know whether the
noble Duke is aware of it — this Resolution proposes to strike the
old Earldom off the Roll, ancl to call the Earl of Mar in his new
place ; in fact, it puts a fresh Earldom upon the RoU of the Lords
of Scotiaud, but it also allows another Lord Mar, if he likes to
come to your Lordships' House, to claim the ancient Earldom.
You might have Lord Mar coming to this house next year
and claiming to be put back according to the Decreet of Ranking
upon the Union Roll as dating from the year 1457.
Now I will call your Lordships' attention to another rather
important point. Two years have elapsed since this question -was
brought before the Committee for Privileges. It was decided in
February 1875 that the Earl of Mar and KeUie had proved his

398 APPENDIX.

NO. 11.

right to the title, the origin of which was placed in 1565. Two
years have elapsed since then, and most Scotchmen, I think,
supposed, as I did, that the whole matter was done with ; hut
after an interval of two year,5, it is brought forward again in your
Lordships' House in the form of a resolution. Surely the proper
thing would have been to have moved a resolution confirming that
decision of the Committee for Privileges very shortly, say -within
a month, after the decision was pronounced by the Committee.
Why have two years been allowed to elapse before this question
has been brought before your Lordships' House 1 My Lords, 1
say tbat such a long time has elapsed that if anything was to he
done there should have been a petition to the Crown, as is, 1
believe, universal in all cases connected witb Scotch peerages, and
it should have been referred, by the Crown to this House. After
the manner in which the matter has been settled, there certainly
should not have been a petition presented to your Lordships'
House direct.
Now, my Lords, this is a matter which not only affects the
two claimants to the title of Mar, but it is one which also affects
very deeply every member of the Scottish Peerage. Y'our Lord
ships are aware that they are a very smaU and limited body at
the present time. I only hope, that if no other good arises from
this discussion in the House, something may come of it in this
way, that perhaps the attention of your Lordships may be called
rather more prominently than it has been of late years (although
the matter has been brought before your Lordships' House in
another form) to the case of Scotch Peers, and perhaps the long-
suffering of Parliament may allow all those who have a right to
call themselves Scotch Peers to sit in your Lordships' House.
(Hear, hear.) Limited as they are in number, they hold peerages
of an earlier date than 400 Peers of England. Therefore, I say,
in passing, that if no other good arises out of this discussion it may
perhaps lead to our getting what we claim as our rights, namely,
seats, as Peers of Scotland, iu this House.
My Lords, this is a matter which really affects the Scottish
Peers themselves in a very keen manner. We were adnutted as
Peers of Great Britain by Parliamentary authority under the Act
of Union. Now, I think that any resolution brought before your
Lordships, which proposes to strike off any Peer, dating from the
fifteenth century, to whom a seat was given by that Act of Umon, is
one which should be passed -ivith very great caution. I say, m
the first place, that this resolution is ultra vires of your Lordships
House, and I say further, that you should proceed very cautiously
indeed before you tamper in any way with a Scottish peerage of
very ancient date, which was fixed by the Decreet of Eanking as

NO. II. APPENDIX. 399
ofthe year 1457, and which was acknowledged at the time of the
Union between England and Scotland as such ; you should con
sider very carefully before you strike that peerage off, and sub
stitute in its place a modern peerage. I say that it would be
contrary to tbe spirit which ordinarily governs your Lordships to
do so, and I say that it is contrary to precedent. That, my Lords,
is the reason why, without entering in any way into the contro
versy as to who is the Earl of Mar, I have taken the liberty of
moving the previous question to the noble Duke's resolution.
Earl of Redesdale. — My Lords, the first question raised by
the noble Marquess is, whether the mode of proceeding in this
matter ought to be by a petition to tbe Crown. Now it is not a
matter with which the Crown has anything to do. The House has
come to a Resolution which has been submitted to tbe Cro-wn as to
the placing of the Earldom of Mar. The petition of tbe noble
Earl is that the House shall, according to the custom in all cases
where a date has been assigned to a peerage of Scotland, order the
Lord Clerk Register to call the peerage as of that date. That is a
matter perfectly within the jurisdiction of the House. It has been
done on numberless occasions, and it is the reasonable and the
only right course to be pursued in the matter.
The noble Marquess says that we are asked by this resolution
to strike a peerage off the Roll. The resolution does nothing of
the sort ; it only says that a peerage shall not be called as of a
certam date ; and why 1 Because it has been most clearly proved
that there is no peerage of that date in existence. There never
was an Earl of Mar sitting in 1457. By some ingenious arrange
ment which does not appear, at the time the Decreet of Ranking
was made up, the Earl of Mar was put in at that date ; but there
was no Earl of Mar then in existence. It is a thing that we
cannot very clearly understand or comprehend certainly, but the
Committee for Privileges inquired into the matter, with evidence
before it which was never brought before the Commissioners who
framed the Decreet of Eanking, or any other tribunal, and
determined that the first Lord Erskine who ever sat as Earl of
Mar took his seat upon a particular date, namely, 1565. That was
the Resolution of the Committee for Privileges, and that was the
award of the House, and that has been the order of the House.
Now, what is really the ground which has been taken up ?
Look at that statement which appeared in the newspaper from a
noble member of this House. As he is not here, I may mention
him — the Earl of Crawford. What is the distinct ground upon
which he goes 1 It is that this House has no jurisdiction to
determine anything about Scotch Peerages. Is the House going
to submit to such a principle, or to admit such a claim as that ?

400 APPENDIX.

NO. II.

This House has always held, and properly held, that it is the only
tribunal to determine the right to a peerage. The proposal of the
noble Marquess, namely, tbat upon this question, which is a simple
one according to order and precedent, the House should be held to
declare that it has no jurisdiction in the matter, seems to me, my
Lords, to be one of the most extraordinary propositions that ever
was made.
Then the noble Marquess says that this resolution would order
a peerage to be put back. It amounts simply to this — that ha-ving
found the Peerage to be of a particular date, we order the Peerage
to be called as of that date. There was another claim put forward
by a person who did not nominally come forward as a claimant,
but as an opponent, and that was that the Earldom did not date
from 1565, but from a much earlier period. He could, however,
show no ground for it, and the decision was that that was the only
date of the Earldom of Mar. And "wliy 1 Because from the time
when the last heir-male died in 1377 down to 1565, there was no
person sitting as Earl of Mar who could claim in any way what
ever to have any descent from the ancient Earls of Mar. The
House came to tbe conclusion, therefore, and naturally, that there
was a new creation at the time when the first of the Erskines came
in. But I do not enter into the question whether that decision
was right or wrong ; it was the decision of tbe House. The only
thing that is now asked of the House is — in accordance with that
decision — to order the name to be called in the place which that
decision has given to it.
The noble Marquess says that that ought to have been done at
once. I wish it had been done at once ; perhaps it should have
been part of the original order of the House. But he says, after
two years, why is it done now ? Why is it done 1 On account of
the scene of confusion and trouble which took place at the
last Peerage election in Scotland, when a person came in who had
been declared and adjudged by this House not to be Earl of Mar
and voted as Earl of Mar. Under these circumstances it becomes
necessary that the House should take care that that circumstance
should not occur again, and therefore it is proposed that the
House should come to a Eesolution that the Earl of Mar shall he
called in the place which was adjudged to him, and not be called
in any other place, there being uo person who has showm any right
to be called in any other place. And now if Mr. Goodeve Erskine
wants to come forward and make good his claim to be Earl of
Mar, and if he can adduce evidence that will satisfy the House
that he is entitled to what he claims, the House must give it in a
very different place from that iu which the Earldom of Mar stood
upon the roll— namely, of the date of 1457. He could not come

NO. II. APPENDIX. 401
in in that place, for he had no claim to come in in that place. He
must come iu at a very much earUer period, which is what is
meant by all those who talk about the very ancient title of the
Eari of Mar.
Now, my Lords, looking at the objections which have been
raised to the proposal of the noble Duke, I do not see how it is to
be met. It certainly has not been met yet. I should like to
know what grounds there are which would justify the proposition
of the noble Marquis, that this House has no right to order
a peerage which is found on the Eoll at a particular date to be
called at another date. What objection can any man take to the
Eesolution by which that is proposed to be done ? It seems to me
that the natural consequence of the Eesolution to which the House
came in 1875 — namely, that the placing, and the only placing, of
the Earldom of Mar was in 1565 — is that it must be called in that
place, and that to call it in any other is improper. I defy anybody
to find any good reason for saying that the places of the Peers
on the EoU can never be altered, and that therefore the House
cannot, upon further inquiry and upon fuller evidence, come to
the conclusion that the placing of the Earldom of Mar at the date
of 1457 was wrong, and that it ought to be called in another
place. That is all that the House is asked to do. It is asked to
act in accordance with the resolution which it came to in 1875, as
to the place in which that Peerage should be called, and at the
same time to order that it shall not be called in another place,
because no one else has proved, and I believe no one is capable of
proving, that it ought to be called in another place.
Earl of Mansfield. — My Lords, the noble Lord has spoken
of precedents. There is no precedent whatever of any Scotch
Peer having been put into a lower place on the Union Roll.
There are precedents for persons being put up, but there is no
precedent whatever for a person to be put down on the Roll, and
although we all bow with great deference to the opinion of the
noble Earl, the Chairman of Committees, I defy him, and I defy
anybody, to find such a case.
With regard to the motion of the noble Duke, and his obser
vations in support of it, it bas not been a question between " rival
claimants to the Earldom of Mar," for in point of fact there were
no rival claimants. There was a claim made by Mr. Goodeve
Erskine to the Earldom of Mar of 1404, and there was a claim
made by the Earl of KeUie to a different peerage. Some years
ago, Mr. Goodeve Erskine claimed to vote at an election of Scot
tish Peers. I was not present at the time, but I believe be voted
on that occasion, and bis vote was received as being the lineal
descendant of the former Earls of Mar. Having taken proceedings
VOL. II. 2 c

402 APPENDIX.

NO. II.

in the ordinary way before the Sheriff of the county, he was after
wards served heir to the late Earl, and he still retains his Earldom
of Mar, and every Scottish Peer in this House is in exactly the
same position. The noble Duke himself, and every other Peer of
this House, knows perfectly well that in Scotland you have not
to go through any form or ceremony whatever — you are merely
retoured heir to your peerage and you take it ; you do not come
to this House for it. It is in that position that the Earl of Mar
stands at the present moment ; and although in the first instance
he was opposed by the late Lord Kellie, who claimed to be Earl
of Mar of 1404, that claim was dropped, and his son took up the
position that he imagined a peerage, or somebody imagined it for
him, of the year 1565, and the Committee for Privileges came to
the conclusion that he had proved his claim to a peerage of 1565;
but they never said one word about the peerage of 1404, there
fore tbat peerage remains intact at the present moment.
My Lords, the decision which the Committee for Privileges
came to in that case, appears to me to have been a most extra
ordinary one, because it was a decision that there was a peerage
of 1565 which nobody bad heard of before, and which has no
scrap or tittle of evidence of any kind to support it. There is no
patent or document of any kind which can be produced to prove
that there ever was that creation in 1565. However, the noble
Lords wbo sat on the Committee for PrivUeges chose to find, for
some reason or other, I do not know what, that there was a peer
age at that time created by Queen Mary, although this is inconsistent
with the recital of an Act passed not long afterwards by the Scot
tish Parliament.
Now, my Lords, the whole foundation df this supposed creation
in 1565 rests upon a very curious matter. There is a letter from
a man of the name of Randolph, who, as your Lordships will
remember, was employed between Queen Elizabeth and Queen
Mary. In the postscript of that letter he says that the Earl of
Mar was made on such and such a day — the day before the mar
riage of Queen Mary and Darnley. My Lords, I have looked
through the evidence given upon this claim, and I find that that
letter was struck out — that it was not allowed to appear in evi
dence, and Lord Chelmsford said — (I beg the noble Lord's pardon,
I did not know that he was in the House or I should npt have
mentioned him) — he said: " This is mere gossip," and, " the evi
dence had better been rejected." That letter having been re
jected by the Committee for Privileges, it is rather a curious thing
that my noble friend the Chairman of Committees, in giving his
opinion, refers to it as that wliich decides the whole matter.
This Mr. Randolph, who was sent by Queen Elizabeth, was

NO. II. APPENDIX. 403
rather in the position of what was called in these days " Our own
special correspondent," — (laughter) — and there ought to be just as
much importance attached to him as is attached to a special cor
respondent in the city of St. Petersburgh who sends to the news
papers here an account of a great action taking place between the
Turks and the Russians, in which the Turks lost 3000 men and the
Russians lost 40. I say that as much importance, and no more,
ought to be attached to the one as to the other.
My Lords, I pass on to the next point. The Committee for
Privileges having come to this decision, which took place on the
25th of February 1875, there was not very much time allowed
for considering, because on the very next day, the 26th February,
a resolution was moved in this House that the report should be
approved of, and a singular thing has happened in connection with
that— I do not know whose fault it is. When the House comes
to a resolution of this kind, they generally report to the Queen,
and take the Queen's pleasure upon it, but it is a very curious
thing that that very night the Order was sent down (whose doing
it was I do not know) to the Lord Clerk Eegister to insert the
name of the Earl of Mar in the Roll at the date of 1565.
Then we come to the time when the extraordinary meeting for
the election of Scotch Representative Peers took place. When
the Lord Clerk Register was going to call out the Union RoU, as
he always does, the poor man was very much puzzled, because he
was told by the House of Lords to call the Earldom of Mar as of
1565, but when he came to the Union Roll it was not there ; and
on the one side he was told, ".You must call the Earldom of Mar
in the precedence in which it has always existed," and the other
side said, " No, you must call it where the House of Lords has
directed." Thereupon there arose protests which were put in on
the one side and on the other, and some persons, of whom I was
one, said that we voted for Lord Kellie. I said I did not vote for
the Earl of Mar, because that was my opinion. I never shall vote
for him as the Earl of Mar, or consider him the Earl of Mar
myself Now, my Lords, with regard to the Decreet of Ranking, this
is one of the most solemn Decreets that ever was passed. About
the year 1605 it was found that there were so many disputes
among the different Peers as to how they ranked, that all public
business was defeated, because at the beginning of a sitting they
were always fighting as to where they should sit. In order to put
an end to that, the King ordered a special inquiry to be instituted.
That inquiry extended over several months, and every Peer was
obliged to put in whatever evidence he could in order to establish
bis right to his peerage. The proceedings show that there were

404 APPENDIX. no. ii.
a great many Peers who were not able to bring their proper docu
ments, because they were either lost or stolen or burnt; from a
great many of them they had been stolen. Therefore the only
thing the Commissioners could do was to fix the ranking according
to the documents produced. Upon that examination the Commis
sioners reported to the Sovereign, and the Sovereign, with the
advice of the Council, passed a solemn . Decreet of Ranking, which
Decreet has always been held to show the rights of the different
Peers. There was a reservation, however, to this effect : if at any
time any Peer considers himself aggrieved, or thinks that he is
able to produce documents which prove that his Peerage is of an
older date than that at which it is placed in the Decreet, then he
may be permitted to have tbe RoU amended in that manner, upon
establishing his case — not that any Peer should be able to put him
down lower, but that he might be able to put himself up higher
(Hear, hear.) That is the manner in which the rights of the Peers
of Scotland stood with regard to the Decreet of Ranking.
Now this is rather remarkable with reference to the Earldom
of Mar. We all know that the old Earldom of Mar is the most
ancient in Scotland; but the Lord Mar in 1606 was not able to
prove that, because the old charter was lost. However, Selden, in
his book of " Titles of Honours," mentions the Earldom of Mar as
being the oldest that was known, and says that he had seen the
original charter granting the earldom. This charter was lost, but
curiously enough it is said to have been fomid quite recently in
the course of a search for other papers at Lincoln's Inn. The
original charter of tbe Earldom of Mar of 1090 is said to have
been found. Whether it has or not I cannot say, for I have not
seen it, but it is evident that it is possible that the case may arise
of an Earl of Mar claiming the title of Mar as of the date of 1090,
because by a provision in the Decreet of Ranking, the Earl of
Mar would be able to go up higher, although no Peer can be put
lower. Now, my Lords, that being tbe case, what is the proposition
which is made at the present moment by the noble Earl on my
right ? He proposes that you should strike out the Earldom of
Mar at the date of 1457, and insert it at a later date as an Earl
dom of Mar of imaginary creation by Queen Mary ; but for what
reason tbat is to be done, except it is that they have got into a
mess with their orders, I do not know. The Committee for
Privileges made an unfortunate report; they came to what I
consider a most erroneous conclusion, supported by no facts what
ever. I have no doubt the noble Lords who came to that
conclusion took great pains -with the case. They must have taken
immense pains, because to give a judgment when all the facts are

NO. II. APPENDIX. 405
against you must be a difficult thing to do. There was one
circumstance with regard to the judgment which I think it neces
sary to notice, and that is, that it seems to me very curious that
the Committee did not consult their legal advisers upon the law
of Scotland. If they had done so, although they might perhaps
have come to their decision, they would certainly never have said
that one thing which proved it to be right was, that although
Queen Mary's charter was dated the 23d of June 1565, it was not
until the 1st of August in that year that Lord Mar took his seat,
and, therefore, he could not have sat under it. Now, my Lords,
this was a territorial title, and everybody in Scotland knows that
it requires a month or more to make up your titles and get infeft
ment. These proceediugs are not known to English Peers, but
they are known to all of us, because we succeed to our property in
that way. The process is very much more rapid at the present
time, but that was the case when I succeeded to my property, and
this being a territorial peerage, that accounts for the delay which
took place between the 23d June and the 1st August. The fact
that Lord Mar did not sit in the meantime as Earl of Mar is no
difficulty at all in the case. Why, my Lords, I myself, after I
succeeded to my grandfather, sat and voted in this House for
months after I became Earl of Mansfield upon a peerage of a
separate creation. Therefore, what has been said of the Earl of
Marin 1565 might just as well have been said of me, because I
was sitting under another title.
Now, my Lords, with regard to the point of tbe noble Marquess,
as to how far the House has the power of altering the Roll, I think
you would be proceeding ultra vires in ordering the ancient Earldom
of Mar to be struck out. My Lords, up to the present time the
House of Lords has always considered the Union Roll as part and
parcel of the Act of Union, and has attached to it the importance
and authority which attach to the Act itself. The question has
been asked. What can be done 1 The only thing which could have
been done, would have been to have referred the matter to the
great tribunals in Scotland, not to any tribunal in this country.
Whether or not it might have been considered by your Lordships
that this was a case within tbe jurisdiction of the Scottish Court
of Session I know not ; but I have carefully gone through the
whole of this question, and there is one thing which presses very
much upon my mind, and that is, that the opinions of the Attor
ney-General, Sir Richard BaggaUay, and of the Solicitor-General
for Scotland, Mr. Millar, now Lord CraighiU, were adverse to the
conclusion at which the Committee arrived, but in defiance of that
advice the Committee for Privileges came to the conclusion they
did. Therefore, there were lawyers on the one side, and there

406 APPENDIX.

NO. 11.

were lawyers on tbe other side, and I suppose that no one will
dispute that Sir Richard BaggaUay and Mr. Millar were very well
qualified to form and to give an opinion upon the question.
I trust that your Lordships will not pass the Resolution which
has been moved by the noble Duke.
Lord Selborne. — My Lords, I do not propose to follow the
noble Earl who has just sat down, in the observations he has made
as to the grounds of the decision adopted by this House in 1875.
We are all very well aware that botb before that decision and
afterwards there had been various persons who have entertained a
different opinion upon the merits of the question, but your Lord
ships I think will hold, that it having been determined in one
particular way by a resolution of your Lordships' House, that is a
determination which, so far as it goes, is binding upon your
Lordships, and that this discussion must proceed upon that
assumption. My Lords, having said that, and therefore not going at all into
the question whether the decision of 1875 was right or wrong, 1
must submit some reasons which make me think that, whatever
else your Lordships may deem it right to do, you cannot either
with prudence or propriety adopt the resolution offered to you by
the noble Duke. There are two reasons which I will endeavour to
explain to your Lordships for not doing so. The first is, that, as
I understand what the effect of that Resolution would be, it is ui
the first place not really consistent with what was resolved hy the
House in 1875, and in the second place, if it were carried, it would,
instead of supporting ancl fortifying the authority of what was
then done, tend as much as anything could do to destroy and to
throw discredit upon it. That is the first reason which I will
endeavour to explain to your Lordships against adopting this
resolution. The other is, that I think your Lordships ought to he
most careful of inquiring into a matter of this sort, and into all
the precedents and the laws affecting peerage, before you assume
a jurisdiction whioh, as far as I am aware, there is no ground for
saying that you have ever hitherto exercised. My Lords, I will
endeavour to explain these two objections to the vote which
we arc now asked to come to by the Resolution of the noble
Duke. The noble Duke in the first place afiLrms that the Eesolution
and judgment of this House on the 26th February 1875 has
declared the dignity of Mar to be entitled to a particular preced
ence, according to the date of creation of that earldom, which the
Resolution of the House says Wcas in 1565. My Lords, I do not so
read the Resolution which the House arrived at on the 26th of
February 1875. That Eesolution, after aflErmiug that the peti-

NO. II. APPENDIX. 407
tioner, Lord KeUie, had made out his claim to the dignity of Earl
of Mar created in 1 565, and ordering that Eesolution and judgment
to he transmitted to Scotland, proceeded to direct this : " That at
the future meetings of the Peers of Scotland, for the election of a
Peer or Peers, the Lord Clerk Register do call the title of the Earl
of Mar according to its -place in the Eoll of Peers in Scotland
called at such election." That was a very different thing indeed
from saying, as this Eesolution does, that it shall be called accord
ing to the date of the creation of the Earldom. And, my
Lords, I not only say that the natural meaning of those words is
that it should be called according to the actual place which it had
upon the Eoll, but I may appeal to what has just now been said
by the noble Earl the Chairman of Committees, who has virtually
admitted the same thing, because he says it was a pity that what
is now proposed vras not done at that time. (Hear, hear.) Of
course, if the words which I have read meant the same thing with
what is stated to be their meaning in the noble Duke's Resolution,
it was done at that time. But, my Lords, the words mean quite
a different thing : they mean the place which that Earldom had
and was entitled to upon the existing Roll of Peers.
And now, my Lords, I will give a reason for what I have said,
that the authority of your Lordships' decision, instead of being
supported, would be really impeached and impugned if this
Eesolution were to be adopted. Although no doubt tbe decision
of the House of Lords does not in that respect embody tbe grounds
of the judgment delivered in the Committee for Privileges, yet as
a matter of fact we all know, and we have been told so this even
ing, that the real ground upon which the Committee for Privileges
proceeded was that in 1565 there was no Earl of Mar existing of
earlier date than that period, and that the ancient Earldom had
not been restored by the means which, down to tbe date of that
decision, had always been supposed to have had the effect of
restoring it. Therefore the decision asserted virtually, though
not in form, that there was only one Earl of Mar, and that there
had been only one Earl of Mar since 1565, and that was the
holder of the Earldom created in that year. But upon the Union
Eoll and the RoU of the Peers of Scotland there always had been
an Earl of Mar standing, and therefore the place of the Earldom
of Mar (if there was only one) upon the RoU of Peers was its
existing place upon that Roll, and not any new or different
place. The number of precedents which the noble Duke mentioned,
hi cases where new rights of peerage had been established, or
where peerages had been restored after attainder, which were not
on the Roll before, and were then ordered to be put upon the

408 APPENDIX.

NO. I.

Roll, are no precedents whatever for taking away from an existing
peerage, which the principle of the decision determined to be the
only existing peerage at that time, its actual place and precedence,
whatever that might be upon the RoU. The Resolution of 1875
merely said that that place was to continue the place, and the
present Resolution would not affect that. My Lords, as I under
stand this Resolution, and as it has just been explained to your
Lordships, it does not direct a change of tbe Roll — it does not
direct the erasure of the existing title of Mar from its existing
place upon the Roll and the introduction of that same title in
another place ; but it proposes that the Lord Clerk Eegister
should be directed to call the title of Mar in the place and pre
cedence to which it would be entitled according to the date of the
creation of tbat earldom, that is 1565. Tbe more ancient peerage
would rank in the earlier place upon the Eoll, which this resolution
does not alter, and the effect, therefore, of the resolution would
really be to introduce a second Earl of Mar into the Eoll, leaving
the original Earldom in its old place, and in that way to encourage
instead of repelling the idea that there were two Earls of Mar.
Anything really more destructive of the authority of the decision
of 1875, I, for my own part, cannot conceive.
Well, my Lords, I proceed to say what I said before, that it
appears to me to be a question of a very grave and serious import
ance whether your Lordships have any such right to interfere with
the existing precedence upon the existing Eoll of Scotch Peers,
Mar or any other, as this Eesolution claims. There may, possibly,
be precedents for it ; none have been produced, because no pre
cedent has been referred to for changing by a Eesolution of this
House the precedence upon the EoUs of any existing peerage
which stands there. But of course, if there are such precedents,
some inquiry ought to be made after them, and with a knowledge
of these precedents we should be on safer ground in taking any
particular course. I must say that my inquiries, so far as I have
been able to carry them, lead me to entertain a most serious doubt
whether it would not be against the spirit of Acts of Parhament
upon the subject for your Lordships to assume any such juris
diction. Now the position of the matter is simply this. The preced
ence of the Scotch Peers was settled by King James VL in the
year 1606, and I have extracts from the Commission and the
letters of the King at that date. The King says that the Peers
were to have the precedence which the Commissioners might
assign to them, that all persons were to give them that preced
ence, and that they were to have it on all occasions, subject
only to a power which was reserved, not to the House of Lords

xo. II. APPENDIX. 409
of Scotland (if there had been such a power, it might perhaps have
descended to this House after the Union), but to the Court of
Session in Scotland, to rectify that precedence, if it was in any
respect erroneous, upon the complaint of any person aggrieved by
it. The noble Duke has stated that in at least one instance that
has been done. The Earl of Buchan, who was put too low, did,
in the reign of Charles L, take proceedings in the Court of Session,
and did get a decree to give him a higher precedence. But it
was thought fit that that decree should be confirmed by an Act
of Parliament of Scotland, and it was so confirmed by an Act of
1633, showing how high a respect the Parliament of Scotland
paid to the roll of precedence as it was settled by the Commis
sioners of King James L, and how necessary they thought it to
fortify, even by Statute, any alteration of that roll.
My Lords, nothing would, in my judgment, be more unsafe for
your Lordships than to take upon yourselves the office of rectify
ing any errors, if errors there be, in the actual ranking of those
Peers. For instance : the Duke of Sutherland is also Earl of
Sutherland, and if the old title of Mar is out of the question, I
believe 1 am not wrong in saying that that is generally understood
to be the most ancient earldom in Scotland, and it was estab
hshed in the person of the Countess of Sutherland, the great-grand
mother of the present Duke, by this House, upon the footing of
that being so. My Lords, the Earldom of Sutherland is not iu
its proper place according to that decision upon the EoU of the
Earls of Scotland. It stands below, I think, at present two, and
formerly more than two, other Earls of more recent creation. Why
that is, whether it is, as the noble Earl who spoke last has sug
gested, because the evidence brought before the Commissioners
who inquired into the ranking was imperfect, or for what other
reason, I cannot tell ; but it would be a very dangerous thing if
your Lordships were to take upon yourselves by a vote of this
House to rectify the precedence of the Earl of Sutherland, and,
upon the petition of the noble Duke who bears that title, to order
that that Earldom should be caUed before the Earldom of Craw
ford, which precedes it. But your Lordships might just as well
do that as do what you are asked to do now, because the result of
¦ the exercise of your judgment in the matter is, that it may be
that the Earldom of Mar has been put in too high a place upon
the Roll. If so, so has the Earldom of ErroU and the Earldom of
Crawford ; and I do not know why your Lordships are to rectify
that error, if error it be, in the case of the Peerage of Mar more
than in the case of the Peerages of Erroll and Crawford.
¦And, my Lords, further than that, if we are to go into the
regions of conjecture, I do not know that it is an impossible thing,

410 APPENDIX.

NO. n.

even upon the assumption which I am bound to make, that Queen
Mary did create a new Earl of Mar in 1565 — I say that I do not
know that it is an impossible thing tbat Queen Mary might have
given to the Earl then created a higher precedence than that
which he would have had according to the date of his creation.
The truth is, that your Lordships are invited to enter upon a field
which does not belong to your jurisdiction at all, and to take a
step which, so far as I can see, is in no way whatever involved in
or justified by the Resolution passed in February 1875.
My Lords, 1 pass from that, and I will now ask your Lordships
to consider what is the authority of the Union Roll which you are
asked, without any precedent, as far as I know, to alter. My
Lords, it has a very high authority indeed, for in the preamble to
an Act passed in this House in 1847, it is thus described : these
are the words of the preamble : — •" Whereas an authentic Hst of
the Peerage of the north part of Great Britain, called Scotland, as
it stood the first day of May 1707, was returned to the House of
Lords by the Lord Clerk Register for Scotland, attested by. him,
pursuant to an Order of tbe House of Lords tbe 22d day of De
cember 1707, and entered into the Roll of Peers by Order of the
House of Lords on the 12th day of February 1708, to which hst
sundry Peerages of Scotland have since been added by Order of
the House of Lords at different times, which list of the said Peer
age is called at the election of a Peer or Peers to represent the
Peerage of Scotland in the Parliament of the United Kingdom."
Then it goes on to make certain enactments, which I shaU pre
sently refer to, as showing that when it has been thought neces
sary to interfere with the manner of calling peers prescribed by
the Act of Union, it has been thought proper to give that power
by Act of Parliament.
Now, my Lords, this title of Mar is one which bas been en
rolled and registered by tbe House ever since the Act of Union.
It is one -ivhich stood on the Roll at that time as it stands now in
the precedence given to it by the Decreet of Ranking, in which
precedence the Earl of Mar sat in the last Parliament of Scotland,
and indeed always sat from 1606 in every Parhament of Scot
land ; and your Lordships having determined that that Earldom
was merely created in 1565, are surely not now going to take
away the precedence which for more than two ceuturies the Earls
of Mar enjoyed.
My Lords, I proceed to consider what has been the view
hitherto taken in this House as to the exercise in this sort of
summary way, of authority with regard to tbe Scotch Peerage and
its elections. I find that on several occasions this House has
acted, and the manner in which it has acted is very instructive.

NO. II. APPENDIX. 411
In the last century it desired to have a revised Roll of the Peer
age of Scotland, with the omission of attainted peerages and the
addition of any which had been inserted since the Union — I mean
claiming to which had been established. What course did it
take? It sent to the Court of Session in Scotland to return a
revised Roll, which the Court of Session accordingly did. I
have a copy of the revised Roll here. Some inconvenience had
been found to arise from persons tendering their votes at the
election of S.cotcb Peers whose right to vote was very doubtful
and controverted, and this House passed a Eesolution which a good
many years afterwards was rescinded suh silentio upon the motion
ofthe noble Duke opposite (the Duke of Buccleuch). That Eeso
lution was to the effect, not that tbe existing Roll was to be in
any way interfered with, but that upon the descent of a peerage,
if it was claimed by any collateral more remote than a brother,
that claim was not to be admitted at the elections' until it had
been established and approved by this House. That Resolution
was undoubtedly adopted, but it has been rescinded at the motion
of the noble Duke, I suppose because there was a fear that it
would interfere unduly with the privileges of Scotch Peers.
In 1822 a Select Committee of the House was appointed to
inquire into the subject, and that Select Committee recommended
that the House should assume a considerable authority, that it
should direct the Lord Clerk Register to make out a new Roll,
omitting those peerages which had not been called for a certain
time, or which, if called, had been objected to, and to do certain
things, into the detail of which I need not enter. But the House
did not think it right to assume that power, and what the House
did was to let the matter sleep for some years, and then in the
year 1847 an Act of Parliament was passed. And, my Lords, it
seems to me that if I read to your Lordships what is provided by
that Act and the subsequent Act of 1851, your Lordships will see
that you would be going very clearly against tbe mind of Parlia
ment which passed these enactments, if, without reference to
precedent to justify it (and if there are such precedents it would
be desirable to see them), you assume the power which the noble
Duke now asks you to assume. That Act of Parliament, after
reciting what I have read concerning the Union Roll called at
elections, went on to enact,- first, that no peerage should be called
in right of which no vote had been received since the beginning
of the century ; and, secondly, " That if any vote, or claim to vote,
in respect of any title of peerage on the Roll caUed over at any
such meeting shall be disallowed by " this " House, upon any pro
ceeding had in trial of any contested election, the House of Lords
may, if they shaU think fit, order that such title of peerage shall

412 APPENDIX.

NO. 11.

not be called " until some right to it shall have been estabhshed.
But here, without anything in the Act of Parliament to warrant
it, we are asked to order that the title of Mar now standing in
the Eoll shall no longer be called as it stands there. The third
enactment was, that all protests made at such elections should be
transmitted to this House, who might, if they thought fit, inquire
into the questions raised by such protest, " and if they should see
cause, order the person whose vote or claim has been so protested
against to establish the same," under the same rules as apply to
the case of ordinary claims. A protest has been made in this
case. Then, my Lords, there is this power given by the Act of
Parliament : " That whenever any Peer shall have established his
right to any peerage, or his right to vote in respect of any peer
age, and the same shall have been notified to the Lord Clerk
Register by order of the. House of Lords, the said Lord Clerk
Register, or Clerks of Session, shall not, during the life of such
Peer, allow any other person claiming to be entitled to the same
peerage to take part in any such election, nor shall it be lawful
for the said Lord Clerk Register or Clerks of Session to receive
and count the vote of any such other person, till other-wise directed
by the House of Lords." My Lords, that certainly seems very
carefully to guard tbe rights of persons who, even after a claim
has been allowed, and even during the lifetime of a person whose
claim has been allowed, make any persistent claim to the same
peerage ; they may not take part in the election untU it is other
wise ordered by the House of Lords.
Then in 1851 there is a further enactment which says that the
Lord Clerk Register " shall transmit to the Clerk of the Parlia
ments the titles of any peerages called at such meeting, in right of
which no vote shall have been received and counted for fifty years
then last past, or for any longer period, and on receiving an
order from the House of Lords to abstain from calling such title
at future meetings for such elections, it shall not be lawful for the
said Lord Clerk Register or Clerks of Session to call such title at
any subsequent meeting, or to administer the oaths to any person
claiming to vote in right of such peerage, or to receive and count
the vote of any such person, or to permit any such person to take
part in the proceediugs of any such election until otherwise
directed by order of the House of Lords." There, again, the
power is carefully guarded.
My Lords, the most careful and anxious way in which these
provisions have been made, by Parliament giving this House
particular powers with regard to calling titles upon the Roll at
the elections of Scotch Peers, and, as far as I can see, not giving

NO. II. APPENDIX. 413
any such power as the noble Duke now proposes, leads me to the
conclusion that it is at least exceedingly doubtful whether what
the noble Duke asks your Lordships to do is within your legiti
mate powers ; and I put it to you whether anything could more
tend to discredit the decision which was come to two years ago
than that your Lordships should take a course not clearly
justified by precedent, and not clearly within your constitutional
powers. Lord Chancellor. — My Lords, I cannot avoid thinking that
the Eesolution which the noble Duke has placed upon tbe paper
brings your Lordships into a position of considerable embarrass
ment. My Lords, the particular form of the Eesolution has been
somewhat altered since in the first instance notice was given of it,
and whereas, as it stood originally, it appeared to be a Resolution
directing the Lord Clerk Eegister to call the Earldom of Mar at a
particular place in the list, and at no other place, the Eesolution,
as it now stands, adds to that order a saving of the rights of all
the Peers of Scotland to whatever may be their proper places
" upon further and better authority showed for the same." I own
that the qualification introduced by this saving appears to me to
make the Eesolution less objectionable than it was in its original
form ; but at the same time I cannot but think that, even in its
altered and ameliorated form, your Lordships, by assenting to it,
would run the risk of doing what I feel certain your Lordships
would only do by inadvertence, namely, under the guise of passing
a Eesolution, really make that which would be a judicial, or if not
a judicial, a legislative declaration.
Now, my Lords, I say that the danger of this Resolution would be
that it would be either a judicial or a legislative act, and I say that
for this reason : Your Lordships' Committee for Privileges was occu
pied two years ago with the question of the claim to the Earldom
of Mar. I recollect very well the investigation which then took
place. It extended over a great length of time, and it raised
some of the most difficult questions which, in regard to the tracing
of peerages, can well be imagined. My Lords, I had the honour
of attending the Committee, and I concurred in the Resolution at
which they arrived. At the same time, I do not remember any
case which ever occasioned me more anxiety, or in which one's
sympathy was more enlisted on behalf of the claimant who did
not succeed before your Lordships' Committee. That gentleman
had been supposed to be the person entitled to the Peerage of Mar.
He had been accepted as such, I believe; by all who were related
to the family, and among the rest, by that particular family wbo
afterwards became his antagonists for the title. They had received
him as the proper heir to the older title, and it was in that

414 APPENDIX.

NO. II.

position, that, after holding it for some years, he found himself
opposed by those who had in the first instance admitted his claim.
My Lords, notwithstanding that, after the most careful and patient
investigation, your Lordships' Committee for Pri-vileges were of
opinion that Mr. Goodeve Erskine had not substantiated his claim
to the Earldom of Mar, and, on the other hand, that Lord Kelhe
had made out his claim to an Earldom of Mar, which, according to
the judgment of the Committee, had its origin in the year 1565.
My Lords, that conclusion having been arrived at by the Com
mittee for Privileges, and confirmed by your Lordships' House, I
apprehend is conclusive for all purposes in this House ; and I -was
somewhat surprised to hear not long ago the noble Earl who sits
upon the cross benches (the Earl of Mansfield) set at absolute
defiance the conclusion at which the Committee had arrived, and
the conclusion which had been confirmed by this House. My
Lords, it is not the custom of your Lordships to admit arguments
which would be in direct opposition to a decision which the House
has already come to, and therefore I do not follow in any way the
views which the noble Earl takes upon the subject of this decision ;
but what I do submit to your Lordships with some confidence
is, tbat we ought to be very careful not to go beyond what the
decision actually was.
Now, what the decision actually was of course appears upon the
record of your Lordships' House, and upon the order which was
made by your Lordships' House upon the report of the Committee.
This is tbe order which was made by your Lordships : " That at
the future meetings of the Peers of Scotland, assembled under any
Royal proclamation for the election of a Peer or Peers to represent
the Peerage of Scotland in Parliament, the Lord Clerk Register,
or the Clerks of Session ofiiciating thereat in his name, do call the
title of tbe Earl of Mar according to its place in the Roll of Peers
of Scotland called at such election, and do receive and count the
vote of the Earl of Mar claimina; to vote in ria;ht of the said Earl-
dom, and do permit him to take part in the proceedings in such
election." Your Lordships will observe that this order is entirely
affirmative. There is nothing whatever in it which is negative,
and the affirmative order of the House is that the Lord Clerk
Register caU the title of the Earl of Mar according to its place in
the Roll of Peers of Scotland. My Lords, whether that means
according to the place of a peerage created in 1565, or whether it
means to leave the Lord Clerk Register at liberty to judge for
himself what the precedence of the earldom may be, I do not stop
now to inquire. That is a matter which must be considered in
some other form, and canuot be decided upon a Resolution now
passed by your Lordships' House. But what I do submit to your

NO. II. APPENDIX. 415
Lordships is, that this having been the order of the House, tbe
order of the House having been in its form merely affirmative and
having no negative words in it, it would be entirely reopening the
decision which was arrived at if you were to pass this resolution ;
it would be supplementing it with that which is not the natural
corollary of that which has been ordered by the House, but is
something entirely different — something very much further and
very much higher in its operation ; and therefore it would be
domg what I took the liberty of saying at the outset your Lordships
in this view of the case were asked to do, namely, under the shape
of a Resolution of this House to pronounce a judicial decision
affecting rights of peerage. That is my first reason against
accepting this Resolution.
My Lords, my second reason is one which has been adverted to
by my noble and learned friend (Lord Selborne). It is quite clear
that if your Lordships, not being now satisfied vrith the affirmative
order, which was an order passed as such orders are passed, as a
matter of course, upon every report of the Committee for Privileges,
should pass a negative order, that is to say, an order directing tbe
Lord Clerk Register to call the Earldom of Mar in another place,
the effect of that undoubtedly will be that you will be doing what,
so far as I know, has never, with one exception, which I will ex
plain, been done before — you will be affecting the Union Eoll of
Scottish Peers.
Now the Union Eoll of Scottish Peers is a document which
has a certain authority ; I do not mean to say that it is an infal
lible document, or one whicb can in no way be altered by
authority, but it is a document which, as my noble and learned
friend has correctly said, is declared to be of authority by an Act
of the Legislature — the Act of 1847. The way in which the
authority of the Union Eoll is there mentioned is very remarkable.
It is called " An authentic list of the Peerage of the north part of
Great Britain, caUed Scotland, as it stood the 1st day of May
1707, was returned to the House of Lords by the Lord Clerk
Eegister for Scotland, attested by him pursuant to an order of the
House of Lords." And then we are told by this Act of Parlia
ment that to that list " sundry Peerages of Scotland have since
been added, by order of the House of Lords, at different times."
There is nothing mentioned here of subtractions from that list,
or of alterations in the precedence given by that list. It stands
as an authentic list, made in an authentic manner, and returned
in an authentic manner to this House ; and, as far as we know, by
this Act of 1847 nothing has been done affecting it, excepting in
the way of adding from time to time those peerages, rights to
which have been determined by this House.

416 APPENDIX.

NO. II.

But that being so, what did the Act of 1847 do? It seems
to me to be a very strong expression of the view of the Leris-
lature that if anything was to be done to that Union Eoll it was
to be done by legislative authority, and not merely by a vote of
tbe House, because it gave the House the power (and if the
House had the power already, why should that power have been
given to it by Act of Parliament 1) to order a name not to he
called upon tbat Union Eoll. It did that in this way r " If any
vote, or claim to vote, in respect of any title of peerage on the
roll called over at any such meeting shall be disallowed by " this
House ; that is to say, disallowed after a certain protest had come
before them, and after the persons who had claimed the right to
vote had been called before the House, and the cases heard; if,
after that was done, any vote or claim to vote shall be disallowed
by the House of Lords, the House " may, if they shaU think fit,
order that such title of peerage shall not be called over at any
future election." If, under those circumstances, this House comes
to a resolution of that kind, then, under tbe power of this Act of
Parliament, an order may be transmitted to the Lord Clerk Eegister
that he is not to call the name, and then he is not to caU the name.
Your Lordships have acted upon the authority created by this
Statute ; for, if I remember rightly, although I have not the case
here at this moment, a very few years after the Statute was
passed in the case of the title of ColviUe of Ochiltree, the House
acting under the Statute, and having returned to it a protest
which had been handed in at a contested election, sat in judgment
upon it, called the parties before the House, decided that the
claimant who claimed to vote as Lord Colville of Ochiltree had no
right, and passed a resolution that tbe title of ColviUe of Ochil
tree should never be called again, and ordered the Lord Clerk
Register to act accordingly.
Now, my Lords, if it was necessary to have an Act of Parlia
ment to order that this should be done, and that it should be
done only in those special cases, it seems to me that your Lord
ships would be in very great danger of assuming a legislative
power if you were to do now by this resolution of the House
what it was supposed iu the year 1847 required the authority of
an Act of Parliament. (Hear, hear.)
My Lords, those are the reasons which make me certainly
hesitate, and advise your Lordships to hesitate, before accepting
the resolution of the noble Duke. My Lords, I think the most
satisfactory mode of dealing with the question would be this,—
aud perhaps the noble Duke would be satisfied to withdraw the
resolution he has proposed, with a view to my proposing this
resolution ; if not, I shall propose it as an amendment : That your

NO. II. -A.PPENDIX. 417
Lordships do appoint a Select Committee to consider the matter
ofthe petition of the Earl of Mar and Kellie, and the precedents
applicable thereto, and to report thereon to the House. If there are
any precedents of which I am not aware, they will be considered
by the Committee. It is clearly a subject of such gravity aud
importance, that I think it would be more satisfactorily dealt with
by your Lordships after you had the report of a Select Committee.
Lord Denman. — My Lords, I must say that it seems to me,
that for this House to bind itself to any particular decision by
Eesolution would be an unfortunate step. I feel perfectly sure
that the claimant will have justice done to him, and if ultimately
bis case should come on appeal before this House, there are a
sufficient number of your Lordships who take an interest in it
larger than an ordinary Committee for Privileges, to do justice
between the parties. The noble Marquess opposite bas moved the
previous question, but I think it would be preferable to agree to
the appointment of a Committee to consider the subject.
Duke of Buccleuch. — My Lords, after the speech of my
noble and learned friend on the woolsack, I beg to say that I am
quite willing to withdraw the Resolution which I have moved,
and to assent to the course which has been suggested by bim.
Marquess of Huntly. — I have moved the previous question.
Lord Chancellor. — The noble Duke has stated his wish to
withdraw his ' motion. If the Resolution of the noble Duke is
withdrawn, the previous question will fall with it. If, ou the
other hand, the House is not in favour of the withdrawal of the
motion of the noble Duke, then the noble Marquess would be in a
position to move the previous question.
The question was then put and agreed to : That the motion (of the
Huh of B-uccleuch) be withdrawn.
The Lord Chancellor having moved the appointment of a Com
mittee, Lord Denman. — My Lords, there has been no notice given
of any such motion as that which has now been made by tbe noble
and learned Lord on the woolsack, and I do not think we ought
to proceed in the matter without notice.
The question was then put and agreed to : That a Select Committee
ie appointed to consider the matter of the petition of the Earl of Mar
and KeUie presented on the 5th of June 1877, a-nd the precedents
applicable thereto, and to report thereon to the House.

VOL. II. 2 D

No. II r.
DEBATE ON MOTION OP MARQUESS OF flUNTLV.
House of Lords, llth July 1879.
Marquess of Huntly. — My Lords, as the recent election
last spring of the Representative Peers of Scotland is the first
election that has taken place since the appointment of a Com
mittee of your Lordships' House to inquire into the Earldom of
Mar, I think that I need not apologise for bringing a question
which arose at that election before your Lordships, and makmg a
statement and asking questions regarding it. My Lords, I must
remind you of the circumstances which rendered the appointment
of this Committee in 1877 desirable. I would say at the outset
that I hope to prove that the proceedings which took place at the
recent election at Holyrood were quite contrary in the spirit and
in tbe letter to the report of the Committee of your Lordships'
House. Before I proceed to prove the statement that I have
made, I must recall to your minds the facts which took place
before the appointment of that Committee relative to the Earldom
of Mar; and I would say, in the first place, that I have been
unable to ascertain that any Report bas been forwarded to your
Lordships' House from the Lord Clerk Register as to the proceed
ings at the election last spring at Holyrood.
Now, my Lords, the origin of the Earldom of Mar is, as your
Lordships are aware, enveloped in a great deal of obscurity. 1
am not going back to the dark ages, which some historians say the
Earldom of Mar sprang from ; I am ouly going into facts which
occurred in the present generation, and I hope that I shall, in
dealing witb those facts, not make any statement which may lead
to any controversy upon the subject. The late Earl of Mar, who
died iu 1866, held the title of Eari of KeUie as weU as that of
Eari of Mar. On his decease, Mr. Goodeve Erskine succeeded
through the female Une as Earl of Mar, and was recognised as

NO. IU. APPENDIX. 419
such, and Colonel Erskine, his cousin, succeeded to the title of
Earl of KeUie in the male line. The two titles, which were both
held by the Earl who died in 1866, were thus divided, and the
noble Lord who succeeded through the female line to the Earldom
of Mar voted over and over again as representing the Mar Peerage
at Holyrood. Now, I must here call your Lordships' attention to a most
important Resolution which was passed at the instance of the noble
Duke opposite in this House in the year 1866. The father or
grandfather of my noble friend behind me had, in the year 1822,
carried the Resolution — " That no person, upon the decease of any
Peer or Peeress of Scotland, other than the son, grandson, or other
lineal descendant, or the brother of such Peer, or the son, grand
son, or other lineal descendant of such Peeress, shall be admitted
to vote at the election of tbe sixteen Peers to be chosen to sit and
vote in the House of Lords of the United Kingdom of Great
Britain and Ireland as representatives of the Peerage of Scotland,
or at the election of any one or more of such Peers to supply any
vacancy or vacancies by death or otherwise, until, on claim made
on behalf of such person, his right of voting at such election or
elections shall have been admitted by the House of Lords." But
m the year 1862 the noble Duke opposite moved that the Resolu
tion of the House of the 13th of May 1822 relative to the elec
tion of Scotch Representative Peers be rescinded. Therefore, my
Lords, there is absolutely at the present moment no Resolution of
your Lordships' House compelling a Peer of Scotland to come
before your Lordships' House to claim bis right to vote at the
election of Representative Peers at Holyrood.
As I have said, Lord Mar voted repeatedly at Holyrood, and
there was, I believe, on one occasion, if not on two, a protest on
behalf of the father of the noble Lord opposite against his record
ing his vote. On one of these occasions a very curious thing
occurred. In the General Election of 1868 there was a double
return of Representative Peers for Scotland; the noble Lord's
father and Lord RoUo were elected, both receiving sixteen votes.
There was a double return, and neither of them could take their
seats in this House, because if they had taken their seats there
would have been seventeen Peers instead of sixteen. And in the
year 1869 the late Lord KelUe presented a petition to this House
to annul the vote which was given by Lord Mar, but instead of
proceeding with that petition he withdrew it. I have here a copy
ofthe Eesolution of this House, and of Lord KeUie's petition, and
in that petition Lord Mar is given the whole of his titles, and
it recognises, as I say, officially his title to the Earldom.
Now, my Lords, after the late Lord Kellie's decease the

420 APPENDIX. no. hi.
present noble Lord presented a petition claiming the title of Mar.
The present Lord Mar opposed that claim, and it was brought
before your Lordships' House, and after a very considerable time
— a time which, I regret to say, is often wasted for the benefit of
those whom I shall not name — the Committee of PrivUeges de
cided, on the 25th of February 1875, that his Lordship had made
out his claim to an Earldom of Mar dated in 1565. My Lords,
the following day there was an order sent down to the Lord Clerk
Register, which had a very important bearing on this case. On
the 26th — I think the day after the decision was given — the Lord
Clerk Register was directed " that at the future meetings of the
Peers of Scotland assembled under any Royal proclamation for
the election of a Peer or Peers to represent the Peerage of Scot
land in Parliament, the Lord Clerk Register, or the Clerks of
Session ofiiciating thereat in bis name, do caU the title of the Earl
of Mar according to its place in the Roll of Peers in Scotland
called at such election " (" according to its place," I beg you to note),
" and do receive and count the vote of the Earl of Mar claiming
to vote in right of the said Earldom, and do permit him to take
part iu the proceedings in such election." That was the Eesolu
tion of your Lordships' House.
What occurred after that Eesolution had been carried? At
the next election of Representative Peers for Scotland, there was,
if I may so style it, a great row. Two Earls of Mar appeared, and
so unseemly or so indecorous were the proceedings, that they ended
in a great deal of, I may say, heated conversation. But, my Lords,
after a few months had elapsed, the noble Duke opposite brought
forward a Resolution in this House. The Resolution whioh he
moved on the 9th of July 1877 was as follows :—" That this
House doth order that at all future meetings of the Peers of Scot
land assembled under any Royal proclamation for the election of
a Peer or Peers to represent the Peers of Scotland in Parliament,
the Lord Clerk Register, or the Clerks of Session officiating in his
name, do call the title of Mar in the RoU of Peers of Scotland
called at such elections, in the place and precedence to which it
has been declared by the Resolution and judgment of this House
on 26th February 1875 to be entitled."
My Lords, the moment the noble Duke did that, I moved the
previous question, and a Committee of your Lordships' House was
appointed to consider the matter. Now, I wish to remind your
Lordships on what grounds that Committee was appointed, and
on what grounds I moved the previous question. I submitted to
your Lordships that it was entirely contrary to the Act of Union
that any Peer should be called in his place in the Union EoU of
Scotland in which the peerage stands at a certain date, while the

no. hi. appendix. 421
peerage which he holds is of a later date, at which there is no such
peerage standing in the Decreet of Ranking which was affirmed by
the Union Roll. Now, my Lords, I do not know whether it is tbe
opinion of the majority of your Lordships' House, but I think it
was the opinion of the majority of the Committee who sat upon
the question, and I can safely say it is the almost unanimous
opinion, or at least the opinion of the majority of Scotchmen, that
no peerage which does not stand in its proper place upon the
Union Roll of Scotland should be called as of a later date, and you
cannot have a tinkering and tampering with the peerage upon the
Eoll of Scotland.
What did the Committee report ? They made a most able
Eeport, which I consider is a very important one indeed, affecting
the privUeges of your Lordships. Shortly, the Eeport is this :
The Committee declared that the ancient Earldom of Mar remains
on the Union Eoll. I will not go through all the clauses, but I
may say that that is on the face of the Eeport. They also main
tained that Lord KeUie had not got that old peerage dated pre
viously to 1457, but tbat he had got a peerage given to him by
the Committee for PrivUeges dated 1565, which was not upon the
Eoll. In the last clause of the Eeport they did not recommend
any Order to be made upon the subject ; they left the Statute, the
10th and llth of Victoria, chapter 52, to provide for the event of
any future claim to the old Earldom.
Now, my Lords, after giving that brief risumd of the history of
the two peerages, what occurred at the last election for Scotland ?
The Roll of the Peers of Scotland was caUed over, and the moment
the peerage of Mar was called, the noble Lord opposite answered
to the ritle as upon the EoU. His vote was protested against by
two noble Lords who are here present this evening personally, and
by proxy by about nine or ten Peers of Scotland, I believe ; but that
vote, so far as I can learn, was received and counted. Now, the
question I have to ask is this, Did the Lord Clerk Eegister carry
out the terms of the Statute of the 1 Oth and 1 1th of Victoria, chapter
52 ? They are most distinct ; I will not trouble your Lordships by
reading them at length, but the third section of the Statute says,
"That ff at such meeting any person sbaU vote or claim to appear
or to vote in respect of any titie of peerage on tbe EoU caUed over
at such meeting, and a protest against such vote or claim shall be
made by any two or more Peers present whose votes shaU be re
ceived and counted, the said Lord Clerk Register or Clerks of
Session shaU forthwith transmit to the Clerk of the Parliament a
certified copy of the whole proceedings at such meeting. My
Lords, 1 want to know whether that certified copy has ever been
received. I want to know whether any notice has ever been

422 APPENDIX. no. iii.
taken of the protests that were made against the vote of the noble
Earl in respect of the Earldom of Mar as it stands upon the Union
Roll ; and I want to know what your Lordships intend to do upon
the matter, because the Statute goes on to say that the House of
Lords may " order the person whose vote or claim has been so
protested against to establish the same before the said House."
Now, I say that upon this question we are in a very painful
and peculiar dilemma. In the first place, the Committee for
Pri'vUeges of your Lordships' House has decided that the noble
Earl has got a peerage dated in 1565; but he has tendered his
vote, and his vote is recorded for a peerage dated before 1457.
The Lord Clerk Register is in this predicament : he has either
accepted a vote from a peer holding a peerage which is not upon
the Union Roll, or he has allowed a peer to vote for a peerage
under the protest of two peers present, -without transmitting a
report of the proceedings to this House, and in defiance of the
Report of the Committee for Privileges affirming that the holder
of the peerage has not made out his title to tbat more ancient Eari
dom. That is a very awkward predicament that the Lord Clerk
Register is in, and it is a very painful one for the peers assembled,
whether a vote should be received for the ancient Earldom, and
whether a protest should be acted upon or not.
I maintain that the Lord Clerk Register and the authorities
guiding him have done more even than this. I think I can prove
very clearly to your Lordships that the vote which was received
and tendered by the noble Earl opposite was upon a peerage which
is under attaint. I must go back for a few moments to prove this,
although the position is a very simple one. Mr. John Francis
Erskine in tbe year 1824 appealed to the Cro-wn to be restored to
the titles and honours of his grandfather, who was attainted in the
year 1715. That petition was referred to one of the most dis
tinguished men of the present generation, Sir John Copley, after
wards Lord Lyndhurst, and the other law officers of the Crown.
What did the law officers of the Crown, headed by Lord Lynd
hurst, say in their report 1 I must remind your Lordships that
Mr. Erskine was the grandson of the famous Lord Mar, who was
attainted in 1 71 5. Lady Frances Erskine was the only child of
Lord Mar's who had issue, aud she married her cousin, who after
wards became the heir-male of the family. But this is the most
important point, I think, of the whole of this matter. When it
was referred to Lord Lyndhurst to decide whether Mr. Erskine
had proved his right to be Earl of Mar, be distinctly reported in
favour of Mr. Erskine, ignoring Mr. Erskine's father and the male
heirship ; he only mentions him as tbe legal consort of Lady
Frances Erskine. The law officers reported that the grandson of

no. in. APPENDIX. 423
the attainted Earl had made out his title and proved his pedigree
solely through his mother. That being so, he was restored. Now
the Earl of Mar was placed on the Union Roll at a date previous to
the Earl of Eothes, which is 1457. There is no reason to fix the
dates, but the Earl of Mar was placed on the Eoll distinctly pre-
rious to the Earl of Eothes. Any Earldom of Mar except the one
restored through the female succession distinctly could not have
been excluded from the attaint. The peer who holds the title
given to him by the Committee for Privileges dating from 1565 is
still under the ban of attaint ; it has never been removed. Still,
even under this attaint, he is allowed to vote as Earl of Mar upon
the Roll, and holds a peerage under the Resolution of the Com
mittee for PrivUeges, which was not restored by the Crown under
the report of the law officers made in 1824.
What I want to know is this — Can the Lord Clerk Eegister
call that new Earldom of Mar which was created in 1565 in any
place upon the Eoll at all, when the Eesolution of the Committee
of your Lordships' House says that the order of precedence must
never be altered ? We distinctly proved before that Committee
that no precedent could be found for altering the date of a peerage
to a later date ; — you can put a peerage up, but there is no pre
cedent for bringing a peerage down. And I want to know this —
Ought not the noble Lord opposite to be prevented from voting
upon a peerage which the Committee for Privileges have decided
against? The Committee for Privileges distinctly said he had
made out his claim to a peerage dated in 1565. I ask. Ought not
the noble Lord to be prevented in some way from tendering his
vote for a peerage which is not on the Union Roll, and which is
still under attaint, if it exists at all 1
My Lords, I bring this subject forward without any intention
at aU of opening up sores which I hoped would long ere this have
been healed. I thought tbat after the report of your Lordships'
Committee no vote would have been taken from the noble Lord
opposite upon an Earldom of Mar of an anterior date to the one
which he was decided to hold. But a general election I believe
may take place soon, and what will be tbe result then ? You will
have a commotion, a row ; you will have certainly nine or ten
Peers of Scotland protesting most strongly against a vote being
received. I, for one, think this is a question which affects every
Peer of Scotland in a most important degree, and I shall certainly
continue my protest against any vote being received upon a peer
age as being upon the Union Roll which does not exist there.
Lord Chancellor. — My Lords, tbe noble Lord who has just
spoken communicated to me the questions which he proposed to
me to-day, and I shall answer them to the best of my abUity ; but

424 APPENDIX.

NO. III.

1 have no intention whatever of following the noble Lord over the
range of the discussion which he has raised with regard to the
Mar Peerage. I cannot myself imagine what possible purpose
would be served by pursuing a discussion of that kind in this
House after the decision at vvhich the House has arrived.
The two questions which the noble Lord put to me I will state to
your Lordships, in order that the answers may be made intelligible.
The first of the questions was, as I understood it, Was the
Lord Clerk Register justified, at the recent election at Edinburgh,
wben the Mar Peerage was called in the course of calling over the
Roll, in receiving an answer from the noble Lord (the Earl of Mar
and Kellie) ? The view of the noble Lord who has just spoken
upon that subject I understand to be this : that the peerage which
is called on the Roll the Mar Peerage is not the peerage which,
according to the view of the noble Lord, has been adjudged hy
this House to the Earl of Mar and KeUie, and therefore the Earl
of Mar and Kellie should not have been allowed to answer when
it was called. That, my Lords, depends upon the meaning of two
Resolutions of your Lordships' House ; I have no right to inter
pret them ; but I will state them for your Lordships' considera
tion, and I will state also what I understand them to mean.
In 1875 the Committee of Pri-vileges made a Report to the
House, which was adopted by the House, upon the subject of the
Mar Peerage, aud this was the Report : — " That the petitioner,
Walter Henry Earl of Kellie, in the peerage of Scotland, hath
made out his claim to the honour and dignity of Earl of Mar in the
peerage of Scotland created in 1565." " Ordered that at the future
meetings of the Peers of Scotland assembled under any Eoyal Pro
clamation for the election of a peer to represent the Peerage of
Scotland in Parliament, tbe Lord Clerk Eegister do call the title
of the Earl of Mar according to its place in the Eoll of Peers of
Scotland called at such election, and do receive and count the vote
of the Earl of Mar claiming to vote in right of the said Earldom,
and do permit him to take part in the proceedings in such election."
The Earl of Mar there spoken of is, of course, the Earl of Mar and .
Kellie. Now, the Eoll of Peers in Scotland is a public document which
is perfectly well known ; and in that Roll of Peers there is one
entry, and only one entry, of the Earldom of Mar. It may he in
its wrong place, or it may be in its right place ; I have nothing to
say as to that. It is there, and it is only in one place, and to that
place this Resolution must necessarily have referred, for there was
nothing else that it could have referred to. Therefore the Order
of your Lordships' House to the Lord Clerk Register is this : that
he is to call the title of the Earl of Mar according to its place in the

NO. III. APPENDIX. 425
EoU of the Peers of Scotland. He has no authority to put it in a
different place ; he must call it in the place where he finds it ; it is
only found in one place ; and when he calls it, and it is answered,
he is ordered to receive and count the vote of the person who has
been adjudged to be Earl of Mar and Kellie in answer to that call.
1 cannot myself see that any question cau really arise as to the
duty of the Lord Clerk Register. The Order of your Lordships'
House speaks for itself; the Lord Clerk Register has nothing to
do but to obey it ; he is to call the title and receive the vote of
the proper person when he calls it. That is the first question.
The second question which I understand the noble Lord to wish
to put to me is this — Protests were entered, as I understand, at
the recent election, against the Earl of Mar and Kellie being allowed
to answer to the call of this peerage ; and the noble Lord asks me
secondly, Ought not the Lord Clerk Register to have returned
these protests, or the whole of the proceedings, to the House of
Lords, in pursuance of the Statute of the 10th and llth of the
Queen, chapter 52? That, again, depends upon the words of the
Statute, which seem to me to be reasonably plain. The Statute
says that if at a meeting for the election of Representative Peers
" any person shall vote, or claim to appear or to vote in respect of
any title of peerage on the Eoll called over at such meeting, and
a protest against such vote or claim shall be made by any two or
more peers present, whose votes shall be received and counted, tbe
said Lord Clerk Eegister or Clerks of Session shall forthwith
transmit to the Clerk of the Parliaments a certified copy of the
whole proceedings at such meeting; and the House of Lords,
whether there shall be any case of contested election or uot, may, in
such manner, and with such notice to such parties, including the
persons so voting or claiming to appear or to vote in respect of
such title of peerage, and the persons protesting as the said House
shall think fit, inquire into the matter raised by such protest ; and,
if they shall see cause, order the persons whose vote or claim has
been so protested against to establish the same before the said
House ;" and if he shall not appear, or shall fail to establish the
claim, then the House may order that he is to be put to silence for
the future.
That applies, of course, to a case altogether different from a
case like the present. The meaning cannot be that the Lord Clerk
Eegister is to transmit the protests which -were made on the occa
sion of the recent election to this House, in order that the Earl of
Mar and Kellie may be called upon to establish his title here,
because he has done that already. The House says he has estab
lished his title ; and the meaning of the Statute cannot be that
the Lord Clerk Register, as regards a person who has established

426 APPENDIX.

NO. ni.

his title, is to go on transmitting protests against that title to this
House, in order that he may be called upon to estabhsh his title, a
second time. It obviously means that if there is a protest entered
against any person who has not established his title, that protest is
to be sent to the House of Lords, in order that the House may call
upon him to establish his title in due course.
Those are the answers whicb I should respectfuUy offer to the
questions put to me, and I do not desire to take any further part
in the discussion which the noble Lord has raised.
Lord Blantyre. — My Lords, I cannot help thinking that the
decision of tbe House in the Mar Peerage case was a very unhappy
one, and one which is very much to be regretted. I take the facts
from Douglas's Peerage of Scotland, both because Douglas has
always been esteemed a good authority upon peerage matters in
Scotland, and also because his work, having been published in 1754,
is impartial as regards the recent proceedings. I find there that
upon the death of Alexander Earl of Mar, in 1435, Sir Robert
Erskine claimed, through his wife, the Earldom of Mar, and
assumed the title twenty- two years afterwards. In the year 1457
his successor, Thomas, the first Lord Erskine, and the second Earl
of Mar, was dispossessed of the Earldom of Mar. I now pass
over several years, and I find that John the fifth Lord Erskine, and
jiroperly the sixth Earl of Mar, renewed his claim to the Earldom
of Mar, and obtained permission to have the cause reheard, and his
right being clearly and distinctly proved, he was restored ^gr modum
justitia to the Earldom of Mar aud the Lordship of Garioch. He
had a charter to John Lord Erskine, bis heirs and assigns, of the
Earldom of Mar, dated the 23d of June 1565, and he took his seat
in Parliament accordingly as Earl of Mar ; and he and his succes
sors have always protested that they ought to be called first on the
Roll of Peers, as possessing the most ancient Earldom in the
kingdom. My Lords, the whole case turns upon whether Queen Mary,
in the year 1565, restored the old Earldom of Mar, or whether
she made a new creation. Now, it is repugnant to the narrative
I have given your Lordships, and which you will find in Douglas,
and it is also repugnant to common sense, to suppose that Queen
Mary, in place of giving to the Erskine family that which they
possessed for twenty years, from 1435 to 1457, and which they
claimed for more than 100 years after that, that is to say, when
the new trial was granted to them, made a new creation, and gave
them a new Earldom of Mat.
Upon these grounds, my Lords, I think the decision of the
House was an unliappy one, and that the Earldom is now held by
the wrong person.

NO. III. APPENDIX. 427
Earl of Eedesdale. — My Lords, it appears to me an extra
ordinary thing that any Peer should rise to contest the decision
of this House upon a point upon which no other body could decide
but the House. By the Act of Union with Scotland the Peers of
Scotland are placed precisely in the same position in all respects
as the Peers of England and other Peers, and there is certainly no
privilege that the Peers of this country hold more dear to them
or more important than that this House is to be the sole judge
as to whether they are entitled to their honours or not.
Now, my Lords, with regard to the question of this peerage,
it was gone into in the fullest possible manner, and none but
those who have gone into the whole case, and have investigated
all the evidence that was brought forward, are really competent to
pronounce an opinion upon it. To pick up small matters from
other authorities than those which were brought before the House
on that occasion is not a fair way of discussing the question, and
it is not one which, I think, ought to have any weight with your
Lordships. Now, my Lords, the question with regard to the position of
Peers of Scotland appears to depend entirely upon the Union
Eoll which was taken from the Decreet of Ranking drawn up in
the reign of James VI. of Scotland in the year 1606. Now, my
Lords, the Decreet of Ranking is by no means a perfect matter.
On the contrary, it has been open to dispute from tbe time it was
first made down to the present day, and very great differences
have been pointed out. At the time of the Union what happened
on this matter? On the production of the Roll tbe Earl of
Sutherland gave notice to the House that there was now depend
ing between him and the Earl of Crawford some dispute about
their precedency. The question was referred to a Committee of
Privileges, and on Thursday, the I7th of May 1707, the list of
the Peers was laid upon the table, and it was ordered to be entered
upon the Roll of Peers, with this salvo, that " whereas there are
several protests entered upon the Records of tbe Parliament of
that part of Great Britain called Scotland, in relation to the pre
cedency of Peers, the said protests shall be and are of the same
force -with relation to the table of precedency as if they were
entered upon the Boll of Peers and in the Journals of the House
of Lords." Thereby the House recognised its authority over
these disputes with regard to precedency, and that Order was
acquiesced in from the time that it was made. Now, the preced
ency has been at times to a degree interfered with, that is to say,
proof has been given of a different precedency from that which
appeared upon the Union Roll based upon the Decreet of Ranking,
hut the House has never altered the precedency in any of those

42S APPENDIX.

NO. III.

cases, notwithstanding that by the clearest proof the date upon
the Union Roll was shown to be wrong. It is quite evident that
it is quite as easy that a date of higher precedency might
have been granted as of a lower one. Of course, it would not in
validate the peerage although it was called as of a different date
from that to which it was entitled. There is a noble Lord now
sitting below a noble Marquess whose title was proved in this
House to be of some 300 years' precedency to that which it had
given to it by the Decreet of Ranking. Still his name is called
on the Union Roll in the place in which it is put in the Decreet
of Ranking, and not in the place in which the Resolution of the
House giving him a peerage of an earlier date would have put
him. Now, my Lords, very soon after that occurrence, in 1710, the
Duke of Ormond claimed the peerage of Dingwall, which was not
upon the Roll. He claimed to be placed upon the Roll imme
diately after the Lord Madertie. The matter was referred to a
Committee of Privileges, and the Committee of Privileges reported
that he ought to be placed next above Lord Cranstoun. The
effect of that was to give him a precedency four places higher than
he had claimed. Therefore, the House obviously has had the
power of determining where a peer shall be placed upon the
Union Roll, and bad acted accordingly.
My Lords, in reference to the question of what is called the
ancient Earldom of Mar, the precedency which was given hy the
Decreet of Eanking was not the precedency of the ancient Earldom
of Mar, and nobody who has ever claimed to have anything to do
with the ancient Earldom of Mar could admit the ranking of the
Decreet of Eanking to be the proper one for that Earldom. From
the decease of the last heir-male of the ancient Earls of Mar in
1377 to the present day there has never been one instance of any
single person representing either in the Parliament of Scotland, or
in the Parliament of the United Kingdom, the ancient peerage of
the old Earldom of Mar. The date given by the Decreet of Ranking
was, as the noble Marquess has himself said, 1457, or about that
time. The Eari of Mar is placed by the Decreet of Rankmg
between Lord Rothes, created in 1458, and Lord Erroll, created
iu 1452, and the date always accorded to him bas been 1457.
In the Decreet of Ranking no dates were given, the peerages were
merely put in their several places without giving any specific date
with regard to them. But it is most important to note that the
place in which the Earl of Mar was put was that of 1457.
Now, my Lords, the decision of tbe Decreet of Ranking turned
upon the documents which were laid before the Commissioners for
making that Decreet by the Peers themselves. What were the

NO. III. APPENDIX. 429
documents that were laid by the Earl of Mar on that occasion
before the Commissioners for framing the Decreet of Ranking?
Two important documents which he laid before them were a sur
render and regrant of the territorial comitatus of Mar in 1404 to
Isabella, who was the niece of the last Earl of Mar, and who was
no doubt in direct lineal descent his representative, and also a
retour which showed that the then Earl of Mar was her lineal
representative. Now, the Commissioners for the Decreet of Ranking refused
to admit the former of these documents as having any Earldom
attached to it, and they did not give the Earl of Mar the preced
ency of 1404 — ^they gave him the precedency of 1457 ; and thereby
evidently declared that that surrender and regrant did not contain
an earldom in it, that it was a surrender and a regrant of the ter
ritorial comitatus only — they refused to put him higher than 1457.
1 would remark this particularly; there was a very elaborate
protest entered by a noble Earl at the late election. I may
mention him, as he is not present — I mean Lord Crawford. He
stated roundly that the precedence which was allowed by the
Decreet of Ranking was a precedence of 1404 upon that document.
Now, my Lords, the precedence given was not of 1404, but of
1457. I will also remark that Lord Mar did not bring before the
Commissioners for the Decreet of Ranking the charter by which
the territorial comitatus had been restored to his ancestor by
Queen Mary. He gave in these other documents hoping that that
surrender and regrant to Isabella would be the ground upon which
his right to the peerage would be rested.
Now, my Lords, the question is — Why was the precedency of
1457 given to the Earl of Mar by the Commissioners ? I hold it
to be a most distinct proof that they were determined that by no
act of theirs would they recognise the existence of the ancient
Earldom of Mar. Nobody could pretend that that was the date
of the ancient Earldom of Mar, that is to say, of the Earldom held
by the last heir-male, who died in 1377. The reason why they
took that date I believe to be that at that time there was an Earl
of Mar sitting in the Scotch Parliament. James II. of Scotland
had created one of his younger sons Earl of Mar, and therefore
there was an Earl of Mar sitting in ParUament in 1457. If auy
one claims under the finding of the Decreet of Ranking, that is
the Earldom of Mar to which he must make his title good,
because that is the only one which is at all connected with the
place upon the Union RoU.
The effect, therefore, of what has taken place is this — The
Eeport of those who gave judgment in the late case, was that the
Earldom of Mar was a new creation in the time of Queen Mary.

430 APPENDIX.

NO. I]

That no other Earldom of Mar is in existence was proved, as I sa
by the extinction of the ancient Earldom for 500 years, durir
which time no representative of it has ever appeared in any plai
in Parliament whatever. The entry, therefore, of the Earldom i
Mar in the Decreet of Ranking as of 1457 was an erroneoi
entry. Everybody, whichever way he votes, will hold that thi
was not the proper place in which the Earldom of Mar should I
put. There is no doubt that the Earl of Mar iu James vi.'s tin
desired to make good his claim to the ancient Earldom, and l
put in these documents in order to maintain that claim, an
kept back otber documents which might perhaps have induced tl
Commissioners, if they had had them before them, to give him th
other date of creation, namely, the same year in which the com
tatus had been restored to him.
Now, my Lords, if every Peer is to determine whether
judgment of this House is right or not, and to act upon his ow
idea as to whether a judgment is right or not with regard to
matter of this kind, confusion of tbe most unfortunate characte
must necessarily arise. The decision of this House is that th
person claiming to be Earl of Mar is certainly in the -wrong plac
on the Union Roll, because they have found the time when the
held that that Earldom was created; but, if the Peers individual!
are allowed to come forward and say, We do not approve the decisioi
of the House in this matter, and we shall go on disputing and pre
testing, of course there will be nothing but confusion henceforth i
the elections of Peers for Scotland. I think, my Lords, that ther
was great reason for the motion that was made by the nobl
Duke, which was alluded to, of having an alteration in the date o
that peerage upon the Eoll. At the same time there is no doub
that if we once begin to make alterations in the Union Eoll, ther
are so many errors in it that the claims that would be made fo
an alteration of precedence would be such as would give th
greatest possible trouble and inconvenience to the House : there
fore it may be desirable to aUow a peerage to be called in th
wrong place rather than to take the trouble of altering tha
place. My Lords, I would just mention what occurred, I beUeve, wit!
regard to a peerage which was restored some little time ago to m;
noble friend Lord Balfour of Burleigh. His is a peerage which
believe was proved to the House to have been created in 1607
and tbe finding of the House with regard to the placing of Lok
DingwaU was that he was created in 1609 — aud they also foum
that Lord Cranstoun had been created in 1609, a little latei
They therefore put him a little above Lord Cranstoun, and by tha
fact put him above my noble friend Lord Balfour of Burleigh, whi

NO. III. , APPENDIX. 431
stood between Lord Cranstoun and Lord Madertie. Therefore
your Lordships will see that very great confusion would arise if we
were once to begin to move the positions of peers upon the Union
EoU in consequence of the full inquiries which are carried out by this
House upon the subject, very different inquiries from that which was
instituted at the time when the Decreet of Eanking was framed.
My Lords, the Decreet of Eanking was completed with regard to
the whole of the Scotch Peerage in a very short space of time
— about a year I think — and it was framed entirely upon what
ever documents the Peers themselves might think fit to bring
forward. My Lords, having taken part in the judgment upon this Mar
Peerage case, and having inquired into the matter very much
since, and found out those points which I have just mentioned with
regard to the fixing of places by the Decreet of Eanking, I have
thought it my duty to state to your Lordships what upon full
consideration I conceived was the reason for placing the Earldom
of Mar where it was placed in the Decreet of Eanking. If the
Commissioners had taken any vacant time where there was no
Earl of Mar in Parliament, it might have been said that it was the
old Earldom, because no other earldom existed at the time; but
they did not do that. They purposely, as it appears to me, took
a time when there was an Earl of Mar in Parliament, and they
fixed that as the date of the Earldom ; and if anybody has a claim
to the Earldom as placed in the Decreet of Banking, and now on
the Union Eoll, he must claim the Earldom whicb was granted
by King James IL of Scotland to one of his younger sons, and
that is an Earldom which became extinct in 1475.
Earl of Galloway. — My Lords, I think if anything would
induce your Lordships to rescind the Eesolution you came to in
1875, it is the speech which you have just heard from my noble
friend at the table (the Earl of Eedesdale). I certainly, though a
Scotch Peer, was not prepared to hear him or any other Peer in
this House speaking in that contemptuous and sneering way of
the Decreet of Eanking. One would think that my noble friend
must have been living in the year 1606, for he seems to know
exactly what was done at that time. He informs us that the
Commissioners only took a year to frame the Decreet of Eanking,
and he informs us also that the Decreet was only fixed upon the
different documents which could be produced by the noble peers
themselves. Well, my Lords, I leave you to judge whether it is
anything very remarkable if the Decreet of Eanking was fixed in
such a way as that.
But I think I can tell your Lordships something about the
Decreet of Eanking. The peers of Scotland were, in 1606, for

432 APPENDIX.

NO. III.

the first time, formally ranked by order of the King under the
Great Seal : by the terms of this Decreet they were ranked
" according to the antiquity of the documents they then produced."
The noble Lord at the table is quite right there. The rank thus
accorded was final, with the provision that leave was given to
obtain higher rank by the subsequent production of " more ancient
documents." I may just add this, as my noble friend has gone
into the whole question, that Lord Mar (as was pointed out by the
law officers ad-vising on behalf of the " Crown " in the year 1874)
produced in the year 1606 documents which are stiU extant prov
ing his Lordship's heirship, through maternal ancestry, to Isabel
Countess of Mar in her own right, aud he was ranked with pre
cedence of more than a century before Queen Mary's time. Well,
my Lords, if that is not a complete answer to my noble friend 1
do not know what is.
However, my Lords, I had not intended upon this occasion to
go particularly into the question of the Earldom of Mar. What 1
suggested to myself to do was to ask your Lordships to listen to
me for a moment or two while I ventured to point out to your
Lordships that this House really was not competent to decide this
question. (Oh ! Oh !) Yes, my Lords, I see that my noble friend
at the table is greatly surprised. He condemns the Decreet of
E,ankiug, he says that the Decreet of Eanking is nothing, he says
that this House has power to alter any title it chooses. Well, my
Lords, I say, according to tbe terms of the Act of Union that is
not the case. It was decided by the Treaty of Union in 1707,
that a judgment of the Court of Session in the year 1626 was to be
final aud unalterable. Therefore, my Lords, I say that with regard
to any question which was tried and decided by the Court of
Session before tbe Act of Union, it is not competent for your
Lordships' House to reverse that decision now.
But, my Lords, as was pointed out by my noble and learned
friend on the woolsack, your Lordships' House has never given a
judgment upon this question. What it has given is not a judg
ment, for it is not a judicial proceeding, it is merely an opinion.
My noble friend at the table shakes his head at that. I will state
to him what was said by the noble and learned Lord on the wool
sack, and what was said also by the late Lord Chelmsford in the year
1 869 iu this House. What was said by those two noble and learned
Lords was this : " The opinion of a Committee of PrivUeges is not
a judgment." Those are the noble and learned Lords' own words.
It was pointed out by my noble and learned friend on the wool
sack that it was merely a " Eeport," that is the term which he
used — it is a Eeport of the Committee of PrivUeges to your Lord
ships' House. The Eeport was adopted, but stUl I say it was not

NO, III. APPENDIX. 433
a judicial proceeding — it was not brought before the House of
Lords as a judicial court, it was only a Committee of Privileges.
I may be in error, but, as I understand it, properly speaking the
Eesolution should have been submitted to the Sovereign of these
realms for Her Gracious Majesty's approval. In the case of
honours, I believe that to be the proper course. But in this case
I am afraid there was very great and unnecessary hurry, and for
some reason which bas never yet been explained, the Eesolution
was immediately sent off to Edinburgh without an opportunity
being afforded for its being shown to tbe Sovereign of these realms
first. I believe, my Lords, that that was a most irregular pro
ceeding. My Lords, I say that this was not a judgment but merely a
report, and that it was not by the terms of the Act of Union
competent to your Lordships' House to reverse a decision which
had already been adjudged previous to the Union of the two
countries. My Lords, especially as the noble Lord has gone on so
far into the details of this matter — I should like him to be kind
enough to listen to what the judgment of the Court of Session in
1626 was. The Court of Session declared formally " that the
ancient Earldom of Mar was still in existence, descendible through
female succession to heirs-general ; that the heirs had been tem
porarily deprived through iUegal seizure and usurpation in 1457, but
that these wrongs were redressed in 1565 by Queen Mary, whose
charter restored to the heirs of the said Countess Isabel and their
heirs-general hereditarily the ancient Earldom, and which charter
included the dignities," — because, my Lords, patents of honours
independently of lands were unknown till many years afterwards.
That I am sure my noble friend will admit.
Earl of Eedesdale. — Not even tbat.
Earl of Galloway. — I can further inform your Lordships
that the ancient Earldom of Mar was, iu accordance with the
Decreet of Eanking, which is held in such contempt by my noble
friend, placed in 1707 on the Union Eoll. That Roll was formally
accepted as authentic by tbe British Parliament in the year 1707,
and the Earldom of Mar stood upon it witii its old precedence. It
was attainted by Act of Parliament in 1715, and in 1824 it was
restored by an Act of Parliament to the "grandson and lineal
representative " of the attainted Peer (as the Act states), which
positions he (the restored Earl of Mar) held alone through his
mother, Lady Frances, and the report of the law officers of the
Crown, preliminary to the restoration, declared moreover that he
was about to be restored as " her heir," not as the heir of his
father, who was tbe representative of the male line.
Now, my Lords, I wish also to caU your Lordships' attention
VOL. II. 2 E

434 APPENDIX. no. hi.
to this, that in the Eesolution of 1875 your Lordships' House
carefully abstained from the remotest allusion to the ancient Earb
dom of Mar on the Roll, regarding which there was no claim be
fore your Lordships' House. Of course it could not have been
legally included, — because, as 1 have said, the case had already
been decided by the Court of Session before the Act of Union.
My Lords, of course it might be thought by those who were
ignorant of the law affecting Scottish peerages, that it is necessary
for Lord Mar, who succeeded his uncle, and who at present is
entitled to the dignity, to claim his title before your Lordships'
House ; but that is not the case. A Scotch Peer is not required
to do that. I believe it is perfectly true that if he was anxious to
become a Representative Peer, and if his right was challenged, in
that case he might be called upon to prove his right when the title
was challenged. But tbe present Lord Mar was served heir to his
uncle — and that is all that a Scotch Peer is required to do in order
to succeed to a title of dignity enjoyed by his predecessors.
Therefore I say, my Lords, that any other course would not only
be unusual and unnecessary, it would be contrary to Scotch usage
— Scotch usage is treated with contempt by my noble friend at the
table I have no doubt : still we had that law in Scotland before
the Act of Union.
My Lords, I say that by the law of the land, on the death of
a Scotch Peer or Peeress his or her title passes de jure sanguinis to
the next heir, and it rests with an opponent to upset the pedigree,
or to prove a different line of succession to tbe peerage if possible.
Well, my Lords, all I can say is this : I have attended several
meetings for the election of Peers at Holyrood in the last few
years, and I have never heard any formal protest against the claim
of the Earl of Mar, who succeeded his uncle in 1866. On the con
trary, the protests have all been made against my noble friend near
me. My noble friend says that he has protested at every election.
I confess I should have been inclined to make him an exception,
but I was not aware that even he had protested. My noble
friend near me has ventured to get up and has answered to a title
which your Lordships have named, and that he has not got. (No,
no. Hear, hear.) It is a fact. Does my noble friend at the table
venture to say that the House found that my noble friend near me
is entitled to a peerage which, upon the Union RoU, is put above
the Earl of Rothes in 1457 ? Not one of the noble Lords says so.
Earl of Redesdale. — I merely say that he has not proved
his right, and no one can prove his right to the title of Mar which
was in existence in 1457, because it is not in existence now.
Earl of Galloway. — Of course if my noble friend says it is
not in existence, I suppose there is no disputing it, because he has

HO. m. APPENDIX. 435
already informed us that he was living in 1606, when the Decreet
of Eanking was framed, ancl he has informed us how it was done,
— it was done by documents. My noble friend does not judge by
documents himself He informs us exactly what was done at the
time, and exactly what we ought to do now. I just wish to
remind your Lordships what was said by my noble friend Lord
Mansfield, who unfortunately is not well enough to be here on this
occasion, how he showed you that John Francis Erskine, Earl of
Mar, was served heir to the late Earl, and that he still retains his
Earldom of Mar, and every Scottish Peer in this House is in
exactly the same position as that Earl of Mar. My noble friend
went on to say that every one in Scotland is well aware that " you
are merely returned heir to your peerage, and you take it ; you do
not come to this House for it." It is in that position that the
Earl of Mar stands at this present moment. The House of Lords
by their Resolution on February 26th, 1875, came to the conclusion
that Lord Kellie had proved his claim to a peerage of 1565, but
they never said one word about the ancient peerage on the Roll,
therefore that peerage remains intact at the present moment.
And, my Lords, I must not forget to observe and to remind
my noble friend at the table that this was specially confirmed by
an Act passed in the year 1587. The old title was then restored.
Of course I have no doubt that my noble friend will construe any
word. The terms of this restoration were given in Latin. I do
not pretend to be a very good Latin scholar, but I do know this,
that the word restituere means to restore, and does not mean to
create. The word restituere was tbe word used by Queen Mary
when she reatored this ancient title.
Earl of Redesdale. — It was the comitatus.
Earl of Galloway. — Very well, my noble friend is very
anxious to hear about the comitatus. I will tell him that the
comitatus always carried the dignity, but I do not think I need
trouble your Lordships by going further into that. (Hear, hear.)
Yes, but this is a very important matter. I am sure that all your
Lordships must remember that in your childhood you have in
your copy-books written in large hand over and over again, " Be
just before you are generous." Now, my Lords, my noble friend
near me certainly cannot complain of a want of generosity at your
Lordships' hands. I ask no generosity at your Lordships' hands
for the rightful heir, for him who has succeeded to the peerage,
and who is the lineal descendant of the late Lord Mar. I say I
do not ask any generosity for him, but, my Lords, I do implore
you to give him justice.
Lord Selborne. — My Lords, I really hope that this discussion
will he brought to a close. (Hear, hear.) It seems to me to pro-

436 APPENDIX. kc n
ceed upon a forgetfulness of that which we all know, and that ii
that even this House is obliged to pay respect to the law. No-n
with regard to claims to Scotch peerages, the law, as I understan(
it, aud it is Statute law, and in that respect it rests upon highe
ground than the law which relates to English claims of peerage, i
that claims to Scottish peerages are to be investigated in a certau
manner, not by a debate in this House, but in tbe manner whicl
we all know is usual; and the decisions so arrived at have thi
force of Statute law. I own, my Lords, that I think that if thi
noble Earl at the table had contented himself with saying that hi
would have done more wisely than by endeavouring to establisl
the soundness of the reasons upon which the decision upon th(
Mar Peerage case in the year 1875 proceeded. If those reason:
are brought again into the region of discussion, it is but natura
that opinions should differ upon them. But the truth is, we have
no business at all to go into any such discussion. The House hai
decided, and that which it has decided is law. That decision ii
that a certain peerage of Mar was created by Queen Mary, anc
that it belongs to the noble Earl opposite. To that extent th(
whole House is bound.
And, for my own part, I take tbe same view of the construction
of the Order referring to the duty of the Lord Clerk Eegistei
which is taken by my noble and learned friend on the woolsack,
that is to say, that when the House said that the peerage was tc
be called as it stands upon the Union EoU, the Lord Clerk Eegistei
has done nothing wrong in taking the Union Eoll as he found it,
and, if there is only one Earl of Mar there, in treating that, for the
present at all events, as the proper place for the peerage which the
House has declared to belong to the noble Earl opposite.
I do not understand that the House has decided anything
whatever affirmatively or negatively with regard to the ancient
Earldom of Mar. What was said in the Committee of Privileges
about it is a wholly different thing from a Eesolution of this
House. The Eesolution of this House simply was in the aflSrma-
tive, that the noble Earl opposite had established his right to the
peerage of Earl of Mar, created by Queen Mary in a certain year
This House did not say that the old Earldom of Mar was extinct,
and it did not say that it would refuse to entertain a claim if a
claim should ever he brought forward by any person undertaking
to prove tbat he was entitled to that old Earldom. That question,
I say, has never been decided by the House. Last year or the
year before, when a petition was presented by the noble Earl
opposite upon this subject, and a Committee was appointed by this
House to consider the question so raised, that Committee pointed
out that if any person thought fit at any election of Eepresentative

NO. III. APPENDIX. 437
Peers for Scotland to claim an Earldom of Mar iu addition to that
created by Queen Mary, that is to say, to claim the older Earldom,
and if that claim was objected to in a certain manner by two
peers, the proceedings must then be reported to the House, and
the House could, according to the particular procedure prescribed
by the Statute whicb has been quoted, call upon the claimant
whose vote was objected to to establish his claim, and then he
would be entitled to produce any evidence in his power in support
of that claim. It has not been at all determined how far tbat
evidence would or would not be the same as the evidence which
was produced on the former occasion, or how far it would or
would not be open to a future Committee of Privileges to take
different views from those which were taken in the year 1875.
My Lords, I cannot but observe, in conclusion, that I hope my
noble friend at the table will take to heart the lesson of these pro
ceedings. It was only this day last week that my noble friend
himself asked your Lordships as a deliberative assembly to review
various proceedings in the courts of law and elsewhere resulting
in a legal judgment found upon an award. He asked for tbe
appointment of a Committee to inquire into that award, and into
all the proceedings and all the circumstances connected with it
which had taken place ten years ago, I believe. My noble friend
thought that that was a proper matter after these judicial deter
minations to be brought into debate in your Lordships' House, in
which each person would, to use the expression he has just used,
" pick up his information where and how he could." My Lords,
if that is to be done, and if your Lordships are not bound to
regard legal determinations of courts of law, you cannot possibly
prevent the same rule being applied to the determinations of your
Lordships' House, and it appears to me that it is at least as fit a
subject for this House to inquire into whether a proper decision
was arrived at in the year 1875 upon the Mar Peerage case, as to
enter upon such an inquiry as the noble Earl at the table himself
proposed a few days ago.
The Earl of Stair. — My Lords, I think your Lordships will
agree that this matter was introduced by my noble friend below
me in a most temperate manner, and I quite agree -with the
observations that were made by my noble friend opposite. I have
no wish to occupy your Lordships' time by continuing the discussion
for more than a few minutes, but there is just one thing which fell
from the noble Lord, the Chairman of Committees, on which I
wish to say a word. I feel very anxious that the Eoll of the
Peers of Scotiand should be accepted as it was fixed at the time of
the Union. By this proceeding whioh we are just now discussing
that order has been altered, and that wUl lead, I think, to a great

438 APPENDIX. no. iii.
many disputes hereafter. I was present at the last election at
Holyrood of Eepresentative Peers for Scotland, and I was one
of those who protested. I think that the protest which was
signed by other noble Lords as well as by myself ought to have
been taken some notice of. When the Earl of Mar's name was
called out as it stood upon the Union Roll it was answered by my
noble friend opposite. It seemed a very extraordinary thing to
me that he should answer to it, seeing that he only holds a title,
according to tbe Resolution of your Lordships' House, dating from
the year 1565. I do think that under the circumstances the
protest signed by myself and other noble Lords also should have
been taken some notice of.
Marquess of Huntly. — I do not -wish to detain your Lord
ships. I only wish to repeat one of my questions which the noble
and learned Lord on the woolsack did not answer : I refer to my
question as to this peerage being under attaint.
Lord Chancellor. — If the noble Lord wUl be kind enough
to give me notice of the question I -vriU endeavour to answer it.
I answered the two questions of which he gave me notice, and I
really do not know what the third is.

NO. IV. APPENDIX. 439

No. IV.
LETTER FROM EARL OF CRAWFORD IN " MORNING POST,"
1st July 1880.
Sir, — Being unable to be in London on Thursday, the 1st July
next, I would fain be permitted to draw the attention of Lord
Mar's friends to two or three points connected with Lord Eedes
dale's intended motion in opposition to Lord Galloway's motion
standing for that day.
It was resolved by the House, on the 1 4th inst., on Lord
Galloway's motion, that it was incumbent upon the House to
rescind the Order of the House to tbe Lord Clerk Eegister on the
subject ofthe Mar Earldom, 26th February 1875.
Lord Galloway's motion for the 1st July is that this Eesolution
of the House be carried into effect.
It is very natural that Lord Redesdale. should wish to main
tain the Order 26th February 1875, on the grounds he lays down;
but the reasons for its cancellation appear to me to predominate.
The Order is peccant on the following points : — I. It assumes
that the place and precedency of the Earldom of Mar, standing
on the Union Roll of the Peers of Scotland with a precedency
admitted on aU hands as (at latest) from 1457, is vacant through
extinction of that Earldom ; 2. It places Lord Kellie, as Earl of
Mar created in 1565 (according to the Resolution of the House
upon which the Order proceeds), in the place and precedency of
the Earidom of 1457; 3. It precludes the heir-general, the Earl
of Mar, who is in possession of the Earldom of 1457 by tbe law
of Scotland, from his seat and vote at the elections at Holyrood ;
4. It places Lord KeUie, as Earl of Mar created in 1565, over the
heads of eight Earls created between 1457 and 1565, to the viola
tion of their rights of precedency, four of whom have specially
protested against it; and lastly, 5. The Order was issued in the
same breath with the affirmation of the Resolution, and before the
Eesolution had been submitted to Her Majesty, the ultimate judge,
thus taking her approval for granted, although it was in her option
to refer the Report of the Resolution back for further consideration,
or toact independently of tbe Report, as should to her appear just
and right. The House was functus officio when it passed the Order,
which was therefore ultra ¦vires, premature, and informal.

440 APPENDIX. no. iv.
The Order was framed and issued by the House (or by those
who acted on its behalf) under the impression that the Resolution
upon which it proceeded was double-edged ; that the Resolution
extinguished the original Earldom and annihilated the pretensions
of the heir-general on the one band, while it recognised and estab
lished the Earldom of 1565 as the only existing Earldom on the
other. The ground of this impression was a belief that the
speeches of those who advise Committees for Privileges towards
coming to tbeir Resolutions are to be imported into the Resolutions,
and thus form part of the so-called "judgments." The speeches
ou the claim of the Earl of Kellie asserted that the original Earl
dom was extinct, and that no Earldom of Mar existed but that of
1565, thus leaving no opening for the right of the heir-generaL
Had these speeches been importable into the Resolution, theu it
might be contended tbat no injury bad been done to the heir-
general by placing Lord Kellie in the place of tbe ancient Earls ;
and such was doubtless tbe impression in 1875, the effect of the
Order upon the precedency of the eight Earls not being thought of
But it was laid down distinctly and clearly by the late and the pre
sent Lord Chancellors in the debate upon tbe Duke of Buccleuch's
Resolution in 1877, which preceded the appointment ofthe Select
Committee, that the speeches in Committee are merely personal
opinions which may not be imported into Resolutions, the Eesolu
tion of 1875 beiug confined to the simple recognition of the Eari
dom of 1565, and not susceptible of any reference to that of 1457;
while the Eeport of the Select Committee, drawn up by Lord
Cairns, and proceeding upon this basis, recognised the fact that
the question whether the original Earldom of Mar was extinct or
not was (in the eyes of the House) an open question. The law
Lords, Lord Eedesdale, the Duke of Buccleuch, and others, who
had been under the strong impression thus shown to have been
erroneous, all concurred in this wholly new view of the question,
and acknowledged it with a frankness and a tone of consideration
for the heir-general worthy of all recognition and acknowledgment.
The Eeport of the Select Committee did not recommend that the
Order should be rescinded ; but it is evident that the maintenance
of the Order is incompatible with the views and provisions of the
Eeport in question, and -with the dicta of tbe noble and learned
Lords in the debate'referred to on theDuke ofBuccleuch'sResolution.
But the noble and learned Lords in question and the Select
Committee further laid it down, and with perfect correctness, that
the House of Lords has no po-n'er to deal legislatively with
Scottish Peerages standing on the Union Roll, or -with the elections
at Holyrood, except in so far as such legislative power is delegated
to them by the Legislature ; and tbat this has been done to a

NO. IV. APPENDIX. 441
certain extent. It is clear, therefore, that as the Order of 26th
February 1875 tampers with the precedency of Peers, not only as
affecting the Earldom of Mar itself, but the rights of the eight
Earls above spoken of, it is ultra vires on that score alone, and
ought to be rescinded.
Lord Redesdale lays stress on the fact that the Order pro
ceeded on a Resolution arrived at by tbe House after full investi
gation in 1875. No one can question the full and anxious
investigation bestowed on the case by those who advised the
Committee. But unfortunately they advised, and the Committee
reported, in accordance with the private rules of the House handed
down from last century, especially one affirmed in 1762 and 1 771,
to the effect that the presumption is in favour of heirs-male in
cases where the original charters or patents of dignities have not
been preserved ; whereas, by the law of Scotland, the presumption
is in favour of the heir-general under such circumstances. Lord
Stair's words are clear on the general point — " Heirs-portioners
are amongst heirs of line, for when more women or their issue
succeed, failing males of that degree, it is by the course of law that
they succeed, and because they succeed not in solidum, but iu equal
portions, they are called heirs-portioners ; and, though they succeed
equally, yet rights indivisible fall to the eldest alone, without
anything in lieu thereof to the rest, as — 1. The dignity of lord,
earl, etc. ; 2. The principal mansion, being tower, fortalice, etc. ;
3. Superiorities," and so on. So, too, in the final judgment of the
Court of Session in the claim to the barony of Oliphant in 1633,
where there was no writ or charter to show erection of the dignity,
the Lords held that " use was enough, conform to tbe laws of this
realm, to transmit such titles in the heirs-female where the last
defunct had no male children, and where there was no writ extant
to exclude the female." And Charles l., in his warrant for a
charter of confirmation of the dignity to tbe heir-general of
Oliphant and her husband, 16tli March 1640, describes it as "due
and proper to the said Dame Anna, as lineally descended of her
grandsire," and as " inherent in the right of blood flowing from
the first Lord Oliphant." The learned and accomplished Lord
Marchmont thus urged in Committee on the CassiUis claim of 1 762,
" Certainly our succession was always lineal and always female ;
and where there was an heir-male he was no heir at law, but an
heir of provision." No such special provision was alleged in
favour of Lord Kellie in regard to the ancient Earldom of Mar ;
on the contrary, his claim was confined to a totaUy different
dignity. Lord Mar's right stands, therefore, irrefragable by the
law of Scotland ; and moreover by that law, if the Earldom of
1565 ever existed, it appertains to him, and not to Lord KeUie,

442 APPENDIX. no. iv.
as, indeed, the Attorney-General and the Solicitor-General for
Scotland pointed out to the Committee for Privileges in 1874,
although their testimony was disregarded. Now, by the law as
testified to by Lord Cairns and Lord Selborne in the debate on
the Duke of Buccleuch's Eesolution, and upon which the Eeport
of the Select Committee proceeded, if the House possesses no
legislative power apart from delegation, it has no power to frame
private rules subversive of the law of Scotland, or to overrule final
decisions of the Court of Session ; and thus the Eesolution of the
26th February 1875, proceeding as it does on two private rules of
1762 and 1771, and in disregard of and contradiction to the
Oliphant judgment of 1633, and the Mar and Elphinstone judg
ment of 1626, is but an unstable basis for the Order built upon it,
as vindicated by Lord Eedesdale.
Tbe words "resolved and adjudged" are a mere formula, not
expressive of a judicial act in any absolute sense, but prefixed
according to ancient usage to the opinions submitted to the Sove
reign's better judgment, as tbe advice of the House on a peerage-
claim referred to it by the Sovereign.
The risk of establishing " an objectionable and dangerous
precedent," urged in Lord Redesdale's counter-motion, is not, I
think, very serious. A precedent directly in point took place
during last century. By a general Resolution, December 20, 1711,
tbe House of Lords ruled that no Scottish Peer, created a British
Peer, shall be permitted to sit and vote in the House, and the
Dukes of Hamilton and Queensberry, who had been created Duke
of Brandon and Dover, by Queen Anne, were thus debarred from
their seats from 1711 till 1782, in which latter year the House
rescinded its former Resolution on reference to it by the King of a
petition from the then Duke of Hamilton, claiming his writ of
summons as Duke of Brandon, the Duke of Queensberry and
Dover being then dead, after surviving his exclusion sixty years.
The House cannot be less sensible to the claims of justice now
than it was a hundred years ago.
As the matter stands the House has assented to the Resolution
that it is incumbent upon it to rescind the Order of 26th February
1875. It is now invited to carry out that Resolution.
Nothing is asked for but the cancellation of the Order. Nor
is Lord Galloway called upon (as the Lord Chancellor suggested in
his reply to Lord Huntly on the 21st uit.) to propose an Order in
substitute for it. The onus of proposing such a substitute rests, I
conceive (if at all), with those who placed the obnoxious Order in
the position which it now occupies,
Crawford and Balcarres.
Florence, 2^th June 18S0.

NO. V. APPENDIX. 443

No. V.
DEBATE IN THE HOUSE OF LORDS, 14th June 1880.
(From Hansard's Parliamentary Debates.)
The Earl of Galloway, in rising to caU attention to the
Eeport of the Select Committee appointed "to consider the
matter of the petition of the Earl of Mar and Kellie, presented on
the 5th of June 1877 " (the prayer in which petition was that the
title of Earl of Mar should be brought down to the date of 1565
from its existing place on the Union Roll), " and the precedents
apphcable thereto ; " and to move the following Eesolutions,
namely : —
"That the Select Committee thus appointed having reported to the
House on the 27th June 1877 'that they had not been able to discover any
precedents of Orders made by the House for altering the order of precedence
of the Peers of Scotland on the Union Roll ; ' and further, ' that they were
not disposed to recommend that auy Order should be made on the petition
of the Earl of Mar and Kellie ; '
"That in order to give due effect to the recommendation contained in
thia Eeport, it is incumbent upon this House to rescind their Order of 26th
February 1875, which ran as follows, viz. : — ' That at the future meetings
of the Peers of Scotland, assembled under any royal proclamation for the
election of a peer or peera to represent the Peerage of Scotland in Parlia
ment, the Lord Clerk Register, or the Clerks of Session officiating thereat
in his name, do call the title of Earl of Mar according to its place on the
Roll of Peers of Scotland called at such election, and do receive and count
the vote of the Earl of Mar claiming to vote in right of the said earldom,
aud do permit him to take part in the proceedings of such election ; '
"That in accordance with the Resolution of 25th Jidy 1862, whereby
Scotch Peers are not required to obtaia from this House recognition of their
titles before enjoying their rights and privileges, and voting at the election
of Scotch Representative Peera, John Francis Erskine, being the nephew
and undisputed next of kin of the late John Francis Miller, Earl of Mar
(who died in 1866), aud having observed the forma usually complied with
hy Scotch Peers on succession, is entitled in accordance with the protests
made by many Peers at Holyrood to remain in enjoyment of the privileges
he inherited as tenant, de jure and de facto, of the earldom of Mar stand
ing on the Union Roll of Scotland, no other person laying claim to that

444 APPENDIX. no. v.
same earldom, and the said earldom having been in no way affected hy
the Resolution of this House on 26th February 1875, which conceded to
the Earl of Kellie an earldom of Mar of the date of 1565,"
said, he was obliged to make an apology to their Lordships for
bringing forward a Scotch subject; for ever since he had been in
Parliament he had found that Scotch subjects were considered
rather uninteresting in their character. He had, in fact, heard it
said — " Why cannot these Scotch fellows manage their own busi
ness 1 " He must say, for his own part, that if this particular
matter had been left to be decided in Scotland it would have been
decided speedily, finally, and without ambiguity ; and, further, it
would have been decided to the satisfaction of the bulk of the
Scotch people. He desired to state plainly, and as concisely as he
could, the objects of these Eesolutions. First of all, he wished
that House to extricate itself from what he might term an emhar-
rassing state of ambiguity, which he would explain by and hy ;
secondly, he was anxious that the House should uphold Acts of
Parliament which were passed in Scotland before the Union, or in
the British Parliament since the Union. By an article in the
Treaty of Union it was specially reserved that no judgment of the
Court of Session before the Union should be reversed after the
Union by a British tribunal. On the same point he wdshed to
maintain the Resolutions of that House that had been adopted hy
their Lordships as Standing Orders. Thirdly, he wished to try
and remove an imputation under which one whom he must regard
as a co-Peer had been lying for some years — namely, that he had
assumed a title which was not his by just inheritance. He hoped
to be able to show their Lordships that that imputation should be
removed ; and, further, he was anxious, by these Resolutions, to
get their Lordships to show their determination to maintain the
integrity of the Scottish Peerage as it appeared on the Union
RoU, and as it at present stood as shown by the Reports of the
Lords of Session at the command of their Lordships' House at
various times — first, in 1708; secondly, in 1739-40; thirdly, in
1760, as well as at subsequent dates. To make his Resolutions
intelligible, however, he should be obliged to ask their Lordships
to bear with him while he related one or two historical facts
which were undisputed, in order that they might really appreciate
the case he had to put before them. In the year 1715, when
George i. was on the throne, the Earl of Mar, with many Scotch
Peers, was attainted of high treason. In the year 1824, an Act
of Parliament called the Restoration Act removed that attainder ;
but before that Act was passed, it was remitted to the law officers
of the Crown — one of whom was the Attorney-General, Sir John
Copley, afterwards Lord Lyndhurst, and another the Lord Advo-

NO. V. APPENDIX. 445
cate of Scotland — to investigate whether John Erskine of Mar was
able to make himself out heir of line to the attainted Earl. This
was answered in the afiirmative by the law ofiicers of the Crown.
It was stated that he had satisfactorily made out his pedigree. In
his favour, therefore, it was that this reversal of attainder was
given. Incredible as it might seem, it was to the grandson of this
attainted Earl that this act of grace was given, although 109 years
had elapsed since the attainder. But, it might be asked. How
was the Report in favour of the grandson^ He (the Earl of
Galloway) said, it came to the grandson through his mother — and
he begged their Lordships to take note of this. Now, the whole
of this question lay in whether the remainder was to heirs-general
or to heirs-male, aud in this case he was declared in the Act to be
grandson, and the lineal descendant of the attainted Earl, through
his mother. Lady Frances. Their Lordships might imagine that
this circumstance should be conclusive ; but he believed it was
said that this was only a description of the grantee, this John
Erskine of Mar, who had his title restored, and it was said that
it was in consequence of his mother happening to marry a
collateral heir-male of the family that he was really awarded
this restoration title. He thought the best proof he could give
of that was this — that this restored Earl had in his father's life
time, and after his mother's death, succeeded to the estates in
virtue of which he held the title ; so actually he had been in
possession of the estates during his father's lifetime, in conse
quence of having succeeded to his mother as heir of line. He
hoped he should not be trespassing on their Lordships' indulgence
in giving them a still stronger proof, which he found in the
short debate that took place when this restoration was being
made. Sir Robert Peel, who was then Mr. Secretary Peel, intro
duced this Bill for the reversal of the attainder in the otber House.
He said : —
"He moved the first reading of five Bills for the reversal of attainders
—Brat, in the case of Lord Stafford, as a, reparation for an act of injustice.
The restoration of the other titles, however, stood upon a different footing,
for they were all acts of grace and favour. In addition to Stafford's Bill, he
proposed the second reading of Bills for reversing the attainder of the Earl
of Mar, Viscounts Ker and Strathallan, and Baron Nairn."
The point he (the Earl of Galloway) wished particularly to draw
their Lordships' attentiou to was this — that in the debate which
took place, after various complimentary remarks bad been made
hy Mr. Abercrombie and Sir James Mackintosh, Captain Bruce on
that occasion said that —
" With the warmest approbation of the principle of these Bills, he could
aot praise that selection whioh took the taint from the blood of the lineal
descendants of the parties who had first suffered, while the coUateral

446 APPENDIX.

NO. V.

branches of others whose descent was pure in their own line were still
thought fit to be excluded from His Majesty's grace. Such was his own
case. When His Majesty was in Scotland he had felt it his duty to present
a petition for the reversal of this family attainder, and he had never heard
since why this partial restoration of honours was selected. His (Captain
Bruce's) blood collaterally descended from Lord Burleigh, who died without
issue, whose descent was pure and untainted, and yet he was excluded from
Hoyal grace."
This went to show that if he had not been heir of line the reversal
of attainder would not have taken place. Lord Binning concurred,
especially as by the old Scotch law the claims of a collateral branch
were not escheated by forfeiture. He added some words expres
sive of the unaffected pleasure it gave him to see the Ulustrious
house of Mar restored to it honours. Mr. Secretary Peel, in
replying, said he was much satisfied with the approval evinced,
and said —
" There remained two modes of proceeding, either an indiscriminate re
versal of all attainders, or a selection. To the first mode were found objec
tions almost insurmountable, and, indeed, some persons lineally descended
had not, on considerations of property, wished for an extension of the bounty
to them. Restoration of blood was not, in the language of the law, a matter
of grace and favour. As accidentally the Bill for the reversal of the attainder
of the Earl of Mar was the last brought in, he begged just to remark that
that Earldom was one of the most ancient in the kingdom, and, according
to Lord Hailes, existed before any records of Parliament." — [2 Hansard.J
He had quoted these remarks to show that he was not now deal
ing with the modern title of 1565, and to show that the title on
the Union Roll was stiU in force, and had not been taken away.
He did not know that it could be taken away by Act of Parha
ment — certainly not with them in Scotland — and he wished then-
Lordships to grant a measure of indulgence, whUe he showed why
it was that this grandson of the attainted Earl, lineally descended
through his mother, was reinstated, and why it was, being rein
stated^ tbat he was declared restored to his old family honours,
so ancient and illustrious. He would do this by pointing to the
circumstances tbat induced those who made up the Union Roll of
Peers in 1605-6 — tbe only time when the old nobles of Scotland
were ranked according to their precedence — to put the Earl of
Mar where he was on the Union Roll, and where he had stood
since that time. When this ranking took place, as their Lord
ships might be aware, every Scotch noble was directed to produce
every document that would show his proper place in respect to
precedence. There were then no dates ostensibly attached to
Scotch Peerages. An erroneous idea had got abroad that because
the date 1457 was put against tbe Earl of Mar, therefore he could
not have shown auy document for precedence previous to that

HO. V. APPENDIX. 447
year ; but that impression was entirely fallacious. What the Earl
of Mar produced in 1605-6 to show that hewas entitled to the
precedence awarded to him was, first of all, a charter of Isabel,
Countess of Mar in her own right, dated Oth December 1404.
He did not refer to the one dated August of that year, which was
afterwards declared null and void by the Scotch Parliament, but
the later one. In the second place, there was King Robert's
charter aflfirming the same, and tracing the peerage through Isabel
to Eobert Earl of Mar, in 1438, and also the Act of Parliament of
1587, along with other documents. When the Earldom was
restored in 1824, it was restored by an Act passed by virtue of bis
direct succession from Isabel Countess of Mar. But he (the Earl
of GaUoway) would not trouble their Lordships with the otber
Acts. He would rather content himself witb asking them to mark
the quotation from the Act of 1824, for the reason that there were
some who held that although it was perfectly true that the restored
Earl, in 1824, was restored as the lineal descendant and grandson
through his mother, yet that there was nothing in that Act which
led to the conclusion that it was to go in remainder to future
descendants as heirs-general. The quotation read that : —
" Whereas, by an Act passed, John Francis Erskine, Earl of Mar, is the
grandson and lineal descendant of the said Earl of Mar, that the said John
Francis Erskine, aud all the persons who would be entitled, after the said
John Francis Erskine, to succeed to the honours, etc., ... as fully and
honourably as if the said Acts of Attainder had not been made."
It was intended that the Act of Attainder should be reversed, and
that the family of Mar should be restored to the same position as
they occupied before the year 1715. He should be surprised if
their Lordships did not agree to that proposition, as he thought
it was too plain and manifest that that was tbe intention. In
1824, the grandson was restored, and the following year, 1825, he
was succeeded by his son, who in 1828 also died, and was succeeded
hy his son. Up to that time, he would mention, the succession
went as Earl of Mar. There was no doubt that he was entitled to the
title of Kellie, which became vacant a year after he succeeded to
the Earidom of Mar. But the Earldom of Kellie being a title
somewhat lower down, it was thought by the ninth Earl of KeUie,
who died sometime previous, that the Earl of Mar might not care
to acquire the lower title also. The late Earl of Mar, however,
did claim the title of KelUe, and it was adjudged to him in 1835.
Thenceforth he bore the title of the Earl of Mar and Kellie, and
he was the only Peer of that tirie that had yet existed. The Earl
having died in the year 1866, brought matters down to the time
ofthe present unfortunate discussion. In the year 1866 tbe Earl
was succeeded by his sister's son, John Francis Erskine Goodeve

448 APPENDIX.

NO. V.

Erskine. During the late Earl of Mar's lifetime his nephew had
always been looked upon as his heir, and in proof of the peerage
having descended to him through the female line four centuries
and more back, he himself protested that he was premier Earl.
He further enjoined upon his nephew that when he succeeded the
same protest was to be made — namely, that he was premier Earl.
He would there point out to their Lordships that John Francis
Erskine was exactly the same relation to the sou of the restored
Earl as the restored Earl was to tbe attainted Earl — namely,
grandson and lineal descendant, through his mother bearing the
same name, Lady Frances. Thus he was heir-general to his uncle,
according to the Scotch lavv, the same way as his relative, Colonel
Erskine, succeeded as heir-male to the title of Kellie. Then he
was presented at Court as Earl of Mar, and his vote was taken
over and over again as Earl of Mar at Holyrood. Moreover, his
cousin. Earl of Kellie, continually addressed him as Earl of Mar,
wrote to him as such, and received bim at his house as Earl of
Mar. Indeed, there was no question about the matter of any sort
or kind, and it was more than a year afterwards when a change
came over the spirit of his (Earl of KeUie's) dream. On one
occasion, when the Earl of Mar's vote was recorded, and accepted,
as usual, at Holyrood, it was protested against in their Lordships'
House as void by the Earl of Kellie. The question, therefore,
came before the House whether the Earl of Kellie's protest was
thought admissible. This was decided against the Earl of Kellie,
and the Earl of Mar's vote was accepted as valid, and nothing had
occurred since that time in the least way to challenge the validity
of the vote. In the following year, 1867, the late Earl of Kellie
began to lodge cases in tbeir Lordships' House, claiming to be Earl
of Mar. He was never ready, however, to proceed with those
cases, and the House was constantly prevented from proceeding
with tbem, on account of being constantly asked to wait for more
and more evidence. The Earl of Mar immediately presented a
petition as Earl of Mar, asserting his right to the title, and pro-
testina; against the claim of the Earl of Kellie. It was in the
year 1871 that the Earl of Kellie's counsel announced in their
Lordships' House that he was prepared, or that he would be pre
pared in the foUowing session of 1872, to go on with this case.
In January 1872, however, the Earl of Kellie died, and of course
that ended the case for tbat session. But then, he was sorry to
say, that the late Earl's son and successor, the foUowing year,
1873, produced another case. If he (the Eari of Galloway) re
membered right as to the position of the matter, at that time the
son was not himself prepared or ready to proceed. The case was,
therefore, held over or dropped, and in the year 1874 a second

NO. V. APPENDIX. 449
case was lodged, and he would mention that the petition of the
Earl of Mar had been lying in their Lordships' HoUse during those
years waiting to be heard against the cases that had been lodged.
He wished further to explain that the Earl of Mar had never been
a claimant. It had been said that he had been a claimant ; but he
was in a position to entirely deny that assertion. He simply
acted in a constitutional manner in coming to their Lordships'
House and taking the action he did. He succeeded as heir to his
uncle, and the only possible way in which he could be put out of
his position was by some other claimant coming in, and claiming,
not a title which was not upon the Union Eoll, but his title which
was upon the Union Roll. The case in question was tried ; but
hefore it was tried in the year 1873-74, the opinion of the law
ofiicers of the Crown was requested as to the right of claim put in
hy the Earl of Kellie to the Earldom of Mar. He would ask their
Lordships' indulgence while he read tbe opinion of the law
officers of the Crown upon the matter. But first he would remark
that there was a change of Government at the beginning of the
year 1874, which their Lordships would remember, and so, by a
chapter of accidents, in 1873 tbe matter was relegated to the law
officers of the Crown under Mr. Gladstone's Government, and the
case not coming on, it was further relegated to the law ofiicers of
the Crown under Mr. Disraeli's Government of 1874. It was a
fact, however, that the law ofiicers of the Crowm of 1874 held
the same opinion upon the subject as the law ofiicers of the pre
vious Government. Therefore, the law ofScers, both Scotch and
English, in 1874 indorsed the opinions of those of 1873. It was
insisted in their Eeport, over and over again, that the succession to
the Earldom of Mar should continue through the female line, and
allusion was made to a charter of Queen Mary, in which the
words were used "restored to heirs-general in 1565 continuing."
The law officers of the Crown then continued —
" It was immaterial, however, to consider whether there was a re-crea
tion or a restoration to the dignity of Earl of Mar iu 1565, inasmuch as if it
was a re-creation, the surrounding circumstances were sufficient to indicate
the intention that the dignity should descend to heirs-general and not be
limited to heirs-male. On the other hand, if it was a restoration of the
previous dignity" [as they upheld], "there is sufficient evidence to show that
it ia in like manner descendible to heirs-general, and hence that the heir-
male, Lord Kellie, has not made out his claim to the dignity of Earl of Mar,
in the Peerage of Scotland."
He need not remind the House of the terms of the Act of 1824 ;
hut he desired to advert to what was technically caUed the judg
ment of the Committee of Privileges. He wished to say one or
two words about that matter, because it had been wrongly held
VOL. II. 2 f

450 APPENDIX. no. v.
that the Committee of Privileges was identical with the final Court
of Appeal. He was quite certain that he only had to appeal to
the noble and learned Lord on the woolsack to corroborate him
when he said that the Committee of Privileges stood in the light
of a court of advice to their Lordships' House. When petitions
were presented to their Lordships by the Crown for their adrice,
they were generally referred to the Committee of Privileges, who
advised the House as to what course should be taken thereupon.
And what was the judgment, so called, upon the matter in ques
tion, which the Committee of Privileges put forth? It was as
follows : —
" Resolved, that it is the opinion of this Committee that the claimant,
Walter Henry Earl of Kellie, Viscount Fenton, Lord Erskine, and Lord
Dirleton, in' the Peerage of Scotland, hath made out his claim, etc., to the
honour and dignity of Earl of Mar in the Peerage of Scotland, created in
1565 ;" and " that report thereof be made to the House."
He wished the House to observe that it was an opinion of the
Committee that it was the creation of July or August 1565,
because in the elaborate speeches made by tbe learned Lords on
the occasion, it was specially stated that no weight was to be put
upon the charter of Queen Mary of the 23d of June 1565. That
charter they implied had nothing whatever to do with the case.
They avowed that " there was not a tittle of evidence to guide
them in forming an opinion ; " and they said it was evident that the
earldom must have been created between the 28th July and the
1st of August. Therefore, putting ou one side and upsetting the
validity of the charter of Queen Mary as they did, it was not for
him to call into question the Eesolution of the Committee of
Privileges, and he did not intend to say whether tbey were right
or wrong. He would reserve that to himself. The opinion of the
Committee of Privileges, technically called a judgment, was not in
his opinion — and he wished to enforce the point upon the con
sideration of the House — of any actual judicial importance. It was
specially stated that it was not a judgment, but only an opinion,
and tbat should be made clear, because the Eesolution of the
Committee being taken as a judgment stood in the way of the
vote of so many in their Lordships' House. The opinion was
recorded on the 25th of Febniary 1875, and was reported to the
House and sent to the Lord Clerk Eegister on the 26th of the
same month. He was surprised that the matter was carried out
in such an informal aud hurried manner. After this, the Earl of
Mar, the heir-general and nephew to the late Earl who died in
1806, attended at au election of Eepresentative Peers at Holyrood,
and offered his vote as a Scottish Peer on the Union Eoll. He

NO. V. APPENDIX. 451
was shocked to say this was refused by the Lord Clerk Eegister.
This refusal was, he thought, an illegal act on the part of the late
Sir WiUiam Gibson- Craig. The Earl had as good a right as any
other peer in Scotland to record his vote on that occasion, not
withstanding this very remarkable Order sent down to the Lord
Clerk Eegister. If the Order was not intended for the Earl of
Kelhe in respect of his comparatively novel peerage of 1565, it
was ambiguously worded ; but if that Order was intended to relate
to this Earl of Kellie who had just been given his new creation of
Earl of Mar, it was, he had no hesitation in saying, ultra vires of
their Lordships' functions. It was a legislative act which could
only be performed by the whole of the Estates of tbe Realm. A
right to vote was possessed by one Earl ; but to give an Order in
consequence to the Lord Clerk Register to accept bis vote as a
peer upon the Union Roll of another date than that of his peerage
was a legislative function which, with all due respect to their
Lordships, he said was not within their Lordships' prerogative.
It was, therefore, an informal Order without precedent, and also an
illegal Order. In addition, there were eight Peers aggrieved by
this Order. If the Earl of Kellie, who bad just been given this
new title, was empowered to vote in respect of the Earldom of
Mar on the Union Roll of Scotland which had not been awarded
to him, those seven or eight peers were aggrieved whose peerages
came in precedence between the old Earldom of Mar on the Union
EoU and that accorded to the Earl of Kellie, and accordingly more
than half of these immediately protested against what bad been
done. These protests had been going on since, and had been
increased. Each year they would increase until some notice was
taken of their protests and right was done them. He would have
wished, had there been time for it, to call attention to the Report
of the Select Committee appointed in 1877, to show that there
were no precedents for altering, as they had done, the precedence
of the Union Roll. The Lord Clerk Register of Scotland had
heen ordered again and again to send a return of the Roll of
Scotch Peers, and it had always come back in the same way. In the
year 1739-40 the House of Lords ordered the Lords of Session to
make up a EoU and send it to the House. The Lord Chancellor
in 1740 acquainted the House of Lords that the Eoll had been
received. Their Lordships had ordered also a Eeport as to the
limitations of Peerage, and the Lords of Session replied that they
had great difiiculty in answering that part of the Order relating to
the particular limitation of peerages, aud were only able instead to
make the following remarks, to which he called the special atten
tion of the Chairman of Committees : —
" First, they take the liberty to remark that they canuot discover the

452 APPENDIX. no. v.
records of any patent of honour created at a period earlier than the reign of
King James vi.,"
who followed Queen Mary.
"Before that time titles of honour and dignity were created by erecting
lauds into earldoms and lordships."
He must be permitted, as regarded this creation, to quote what
was written in Hansard as having been said by his noble and
learned friend who was on the woolsack last year, and also one
remark of the noble and learned Lord now on the woolsack. The
late Lord Chancellor (Earl Cairns) remarked last year —
" AU I have to say is this : that the peerage on the RoU which is caUed
the Mar Peerage is uot the peerage which has been attached in this House
to the Earl of Mar and KeUie ; and, therefore, the Earl of Mar and Kellie
should not be allowed to answer in this call." — [3 Hansard, ccxlviii. 137.1
The present Lord Chancellor said, on the same occasion —
" The House has decided that a peerage of Mar was created by Queen
Mary, and that the peerage so created belongs to the Earl of KeUie ; but it
has pronounced no judgment, either affirmative or negative, with respect to
the ancient Earldom of Mar." — [Ib'id- 146.]
This Order was, therefore, as he had showu, utterly at variance
with tbe recorded opinion of the Committee of Privileges as to the
awarded claim of the Earl of Kellie ; and he maintained that the
Earl of Mar, who succeeded his uncle, would be defying the Eesolu
tion and Standing Order of this House if he came and made his
claim at the bar of tbe House. This heir to the old Earldom of
Mar was exactly in the same position as every one of the Scotch
Peers; and until- some one made a protest against his being the
rightful heir to tbe title as he was, being indisputably the heir of
his uncle, it was their duty to acknowledge him as Earl of Mar.
What be wanted to place before them was this : Supposing the
Earl of Mar were, in defiance of the Standing Orders of this House,
to come and claim at tbe bar the concession of his right, he could
not imagine there would be much doubt as to the result. It was
undoubted that he could show the charters, Acts of ParUament,
and other deeds, which must convince the law officers of the
Crown that he was the rightful heir to the old title. It was im
possible to think that that House would be likely to reverse the
old Acts of the Scottish ParUament and the judgments of the
Court of Session, aud to override tbe opinion of the law officers of
the Crown and the Act of the Imperial Parliament of 1824. It
was inconceivable that if the Earl of Mar came and made that
claim the noble and learned Lords in that House would adopt such
an extraordinary course. They would have to concede his right;
but the fact of their doing so wonld not interfere with the rightful

NO. V. APPENDIX. 453
position of the Earl of Kellie. He would stUl be in the same
position as he now was with respect to the peerage of 1565. He
had intended to bring some additional details before their Lord
ships ; but he really thought it was unnecessary. He must, how
ever, remark that he was suffering very great disadvantage from
the fact that many noble Lords who took a great interest in this
question were, unfortunately, obliged to be absent. There was
Lord Crawford, the Marquess of Bute, and the Earl of Stair, besides
Lord Napier and Ettrick, who had protested over and over again
against what had been done at Holyrood. These noble Lords
were all absent, and the Duke of Marlborough — who was interested
in a Scotch title his ancestors held before they ever had an Eng
hsh one, but which, not being descendible to heirs-female, he no
longer possessed — had not been able to be present. There was a
great deal of delicacy of feeling amongst the Peers in this House
ahout this question, as it seemed like making a sort of attack upon
the judgment of the House of Lords. This he disputed, and
baring looked into this question very carefully, which, as it hap
pened, he had done at the request of his noble friend tbe Earl of
Kellie, who was interested so deeply in it, he had come to the
determination that, whatever obloquy he should receive, he would
he true to the traditions of his order, true to bis co-peers in Scot
land, and true to this House of Parliament, and put before their
Lordships what he thought was the right view of the case. He
thought he had conclusively proved his case to their Lordships ;
and he would ask them to uphold the laws of the country, to
uphold the Standing Orders of this House, and to acknowledge
one of their co-peers who had indisputable rights which they were
hound to recognise. He earnestly asked them to put aside the
idea that they were acting against the law in any way, or against
precedent, in giving efi'ect to his Resolutions in sweeping away the
Order to the Lord Clerk Register. He found that his claim to
their Lordships' support, in behalf of his second Resolution, rested
on the Standing Order of the House, which had become a Standing
Order, at the instance of the noble Duke (the Duke of Buccleuch),
who, in 1862, induced the House to rescind Lord Rosebery's
Eesolution of 1 822. With respect to this second Resolution, it had
no effect one way or another except that it announced the Standing
Order of the House with respect to Scotch Peers, for the Earl of
Mar had no more business to come to the Bar of that House to
make claim to his title than had any other Scotch Peer. That
was done by another ceremonial altogether in Scotland. He
prayed that his noble and learned friends the late and the present
Lord Chancellors would look fully at tbe question, and he would
venture to say they would find the difficulties could only be

454 APPENDIX. no. v.
aggravated by not getting rid of this Order of the House to the
Lord Clerk Register, which was the subject of his 1st Resolution ;
and, by accepting tbe second Resolution, the noble and learned Lords
would be ouly accepting a Eesolution which embodied what was
at this moment a Standing Order of tbat House. The noble Earl
concluded by moving the Eesolutions of which he had given
notice : —
Mo^ocd to resolve. That whereas the Select Committee appointed "to con
sider the matter of the petition of the Earl of Mar and Kellie, presented on
the 5th of June 1877 " (the prayer in which petition was that the title of
Earl of Mar should be brought down to the date of 1565 from its existing
place on the Union Roll), " and the precedents applicable thereto," reported
to the House on the 27th July 1877 "that they had not been able to dis
cover any precedents of Orders made by the House for altering the order of
precedence of the Peers of Scotland on the Union RoU, " and further, "that
they were not disposed to recommend that auy Order should be made on the
petition of the Earl of Mar and KeUie ; " in order to give due effect to
the recommendation contained in this Report, it is incumbent upon this
House to rescind their Order of 26th February 1875, which ran as foUows,
viz. : " That at the future meetings of the Peers of Scotland assembled under
any Royal Proclamation for the election of a Peer or Peers to represent the
Peerage of Scotland in Parliament, the Lord Clerk Register, or the Clerks of
Session officiating thereat in his name, do call the title of Earl of Mar
according to its place on the Roll of Peers of Scotland caUed at such elec
tion, aud do receive and count the vote of the Earl of Mar claiming to vote
in right of the said Earldom, and do permit him to take part in the pro
ceedings of such election." — (The Earl of Galloway-)
The Lord Chancellor said the nolde Eari who had just
addressed their Lordships had uo occasion to apologise for bringing
this question before the House merely because it was a Scotch
question. The attention of the House bad shown that it was an
interesting question to many of tbeir Lordships. He entirely
sympathised with the historical interest which attached to it in
the minds of many of the Scotch members of their Lordships'
House, and also with the personal feelings which his noble friend
bad expressed towards the gentleman whose claim he had so ably
advocated. The only thing which he could not help regretting
when he heard his noble friend was, that he was not addressing
the rather more limited assembly of their Lordships' House which
met an an earlier hour of the day, and that he was not clothed in
habiliments similar to those in which he (tbe Lord Chancellor)
was obliged to address them. The speech would have done credit
to an advocate at tbeir Lordships' bar. What the noble Earl had
done was to invite their Lordships to deal judicially with a ques
tion which had not come before them in a judicial manner, and to
supersede entirely the established usage and practice of their Lord
ships' House in respect to the proper manner of dealing with judi
cial questions. Ho had not the least doubt of the sincerity of his

NO. V. APPENDIX. 455
noble friend when he said that his object was to uphold the laws
of the country, and to maintain the authority of tbe Orders of their
Lordships' House. He hoped the noble Earl would think him
equally sincere when he said that if they were to take the advice
which the noble Earl had given them, the result would be to sub
vert the laws of the country, and the order and usages of their
Lordships' House. The noble Earl had dealt with two distinct
subjects ; and be would say, before he made the few observations
he thought it his duty to make upon these subjects, tbat he would
rigidly abstain from entering into the merits of the legal questions
with which the noble Earl had dealt. The motion dealt with two
subjects — one, the right to a certain peerage, and the other, a right
to a certain precedence upon the Union Roll. . The more important
of these subjects was the title to the peerage, and that, he supposed,
was the main object which the noble Earl had in view. Tbe noble
Earl asked their Lordships to adopt a Resolution by which they
would declare that —
" John Francis Erskine, being the nephew and undisputed next of kin of
the late John Francis MiUer Earl of Mar (who died in 1866), and having
observed the forms usually complied with by Scotch Peers on succession, is
entitled, in accordance with the protest made by many Peers at Holyrood, to
remain in enjoyment of the privileges he inherited as tenant, de jure and de
faeto, of the Earldom of Mar, standing on the Union Roll of Scotland, no
other person laying claim to that same earldom, and the said earldom having
been in no way affected by the Resolution of this House on 26th February
1875, whioh conceded to the Earl of KeUie an Earldom of Mar of the
date of 1565."
This was to declare that this House, sitting in its legislative capa
city, without any reference from the Crown, and without any
opinion by a Committee of Privileges, could properly assert that
the noble person named — for undoubtedly he was noble by birth,
and he was quite willing in courtesy to call him so — the Earl
of Mar, though not yet recognised by their Lordships' House,
was entitled to all the rights appertaining to that Earldom, includ
ing those of a vote and a certain precedence at the election of
Eepresentative Peers in Scotland. He (the Lord Chancellor) ven
tured to say, that such a motion was absolutely unprecedented in
any case of either an English, Scotch, or Irish Peerage. He need
not remind their Lordships of the course whicb was invariably
taken when a claimant, finding bis right to be a subject of contro
versy, took means to establish that right. He petitioned the Crown
to declare his right. The Crown referred that petition to their
Lordships' House, and the House sent it to the Committee of Privi
leges, according to their invariable usag^ and practice, because the
matter required to be dealt with in a judicial manner, and upon
judicial principles. That Committee comprehended aU the legal

456 APPENDIX. no. v
ability in their Lordships' House ; but it was not confined to law
yers. It comprehended those who were accustomed to attend to
the business of tbe House, and any noble Lord who was desirous
of attending was as much at liberty to do so as any other. That
was the constitutional way of dealing with a question of this kind ;
and he must confess he was a little surprised when he heard the
noble Earl, who had evidently taken great pains to inform himself
on this subject, say it was an unconstitutional thing, and a defiance
of some supposed standing Order of their Lordships' House, for a
Scotch Peer who claimed a title which was the subject of contro
versy to seek to establish his right to the title by a petition to the
Crown, which could be referred to the Committee of PrivUeges.
The noble Earl had given no reason for that extraordinary opinion.
The thing was constantly done. When a person claimed a Scotch
peerage by remote collateral succession, or when any other circum
stances raised a doubt or controversy, he petitioned the Crown ;
and the Crown, as a matter of course, referred the petition to the
House, and the House, equally as a matter of course, sent it to the
Committee on Privileges. And if the noble person whose cause
the noble Earl had advocated desired this course to be adopted, it
was perfectly competent for him to do what he had described. He
would not by so doing be contravening any Order of their Lord
ships' House, and he thought it would be the natural and the
prudent and proper course to adopt. The only ground for that
singular opinion of the noble Earl was an Order made some years
ago by the House, on the motion of a noble Duke (the Duke of
Buccleuch) to the effect that in certain circumstances, where a
person succeeded to a peerage by collateral aud not direct descent,
he should come to that House and establish his right before his
vote was admitted at Holyrood. About ten years after, this Order,
for reasons which the noble Duke would, uo doubt, himself state
to the House, it was thought right that it should be rescinded;
and the consequence was that at the present time there was no
Order of their Lordships' House which prevented any claimant to
a peerage in Scotland from assuming the title and claiming to vote
at tbe election of Representative Peers. But it was quite a non
sequitur, his noble friend would allow him to say, to suppose that
because no such claimant was obliged to come and so establish his
right, that his right was to be taken as capable of being otherwise
established wdieii the claim was matter of controversy. In point
of fact, they all knew that many such claims had been made, and
many such bad been admitted, as far as voting at Holyrood was
concerned, which were wholly aud absolutely unfounded, and in
which the position of tbe claimants was extremely different from
that of the noble person here concerned. But to say that in every

NO. V. APPENDIX. 457
case of the assumption of a title which was in controversy, and
where there was a serious legal doubt, their Lordships' House
should declare off-hand who had the right to it, was a proceeding
quite inadmissible. There was another course which might be
pursued, and that had been pointed out in tbe Report of the
Select Committee of their Lordships' House which sat in 1874.
He could not imagine why tbat course had not been taken. It was
there pointed out that in an Act of Parliament passed in 1847
there was a provision settling the mode of proceeding when auy
question of this kind arose. The solution so prescribed by the
Statute law of the realm was, that if a right to vote was claimed
at Holyrood in an election of Representative Peers, and any two
peers should protest against that vote, the matter must be reported
to the House of Lords, and the House must deal with it. It would
call the person who claimed to vote to substantiate his right, and
if he did not come forward and do so, or if he failed to do so when
he did come forward, he was, by the Statute law of the realm, to be
for ever excluded. The Committee of their Lordships' House
decided that that was the natural way of bringing any such claim
to the test. Why had not this been done 1 The noble person who
claimed to be the ancient Earl of Mar had not, as far as he (the
Lord Chancellor) was informed, since that Resolution was passed,
tendered bis vote at the election of Representative Peers. An
election was held at Holyrood only the other day. If he had
done so, he thought it highly probable that two peers would have
heen found to enter a protest against receiving that vote, if only
for the sake of having all ambiguity on this question cleared up.
He could not think that the friends of that gentleman, wbo,
having that mode of establishing his right, had, for what
ever reason, not thought fit to take a step which would have
made it possible to establish it, were now entitled to come
to their Lordships' House and summarily declare that, without
hearing evidence, or the arguments of counsel, or going judicially
at aU into the matter, their Lordships should assume his right
to the title, and act as if it had been proved before them. In
regard to the Report of the Committee on Precedence, although
the Committee did not think it necessary or expedient to say
that their Lordships could not, under any circumstances, deal
with the question of the Union Roll of the Peers in Scot
land, they had pointed out that there was no example of any
such thing having been done. On that Union Roll and ou
the earUer Decreet of Ranking of the Commissioners of King
James vi. from which it was made up, there had been placed, and
there had remained since 1606, in the order in which it now stood,
the Earldom, and only one Earldom, of Mar. Whether it was

458 APPENDIX.

NO. V.

rightly placed there or not might be a matter of controversy. He
thought it would not be easy to reconcile its exact place on that
Roll, either with the date of the first creation of the ancient peer
age, or with that of the peerage which the House found to have
been created by Queen Mary in 1565. But what he wished to
point out was this — that whether that precedence was or was not
capable of being reviewed and altered by some competent autho
rity — if their Lordships were that authority — they could only
exercise such a power after a petition was presented to the Crown,
and referred by the Crown to their Lordships' House, and they
could only exercise it judicially, as they would deal with every
other question as to dignities or honours so referred to them hy
the Crown. If the matter were to go before tbeir Committee of
Privileges, all tbe materials relating to it would be brought before
the Committee, and, no doubt, it would be duly and properly con
sidered. He rested his objections to the course now proposed on
this fact, that there was on the Union Roll only one Earl of Mar;
there had never been more than one, and it must be determined
judicially that there existed another Earldom of Mar before their
Lordships could rescind the Order and adopt the motion, which
proceeded essentially upon the assumption that there was another.
For these reasons, and feeling that their Lordships could not
properly enter further into the merits of the case, he should resist
the motion before the House.
The Earl of Mansfield said. The difficulty was this — that
their Lordships' House had given an Order which there was great
difficulty in following out. First of all they had decided there
was a peerage which nobody ever heard of before, the Earldom of
Mar of 1565. They could not dispute the validity of that pro
ceeding, though the majority of persons in Scotland beheve no
such peerage existed. On the former occasion on which this sub
ject had been discussed, he had thrown out a chaUenge to any
noble Lord to show one single tittle of evidence in any document
drawn from history that such a peerage existed, and the challenge
had not been met. How did the matter stand at present 1 At
the election of Peers in Holyrood the Earl of Mar was called. A
noble Lord got up and claimed to vote in respect to that title,
which was founded in 1457; but his title was admittedly the
later one, said to be created in 1565. How could they possibly
reconcile this claim 1 When a protest was made against his vote
being received in respect of the old Earldom of Mar, the Lord
Clerk Register said — " I have received an Order from the House
of Lords, and I must obey it." Now their Lordships ought to
rescind that Order. The noble and learned Lord on the woolsack
said there was no precedent for rescinding that Order; but he

xo. V. APPENDIX. 459
forgot that the Order of the House was rescinded in 1864. Many
noble Lords who spoke on this subject on the last occasion were
perfectly ignorant not only as to the theory and the law, but as
to the practice of the law of Scotland ; and he wished that such
cases were referred to the Court of Session, where they were
acquainted with the Scotch law. He intended to support the
Eesolutions of his noble friend.
The Marquess of Huntly said, that, though this might be a
very dull matter to English Peers, it was a question which Scotch
Peers thought very strongly about, and which eff'ected the position
of every Scotch Peer at that moment. He had not intended to
take part in that debate, having made some observations upon the
case on a former occasion ; but, as a Scotch Peer, he objected to
the remarks of the noble and learned Lord on the woolsack, when
he said that the Earl of Mar should have tendered his vote at
Holyrood, that two peers should have protested against his vote
heing received, and tbat then the Earl of Mar should come and
claim bis rights in that House. A large minority of Scotch Peers
had already protested against the Earl of KeUie's vote being
received as Earl of Mar, and that noble Earl should be called
upon to come and prove his right to such vote. All that these
Eesolutions would do was to rescind the Order which had been
made ; and if they were agreed to, he would have to come to
prove such right. He protested against the Earl of Kellie giving
a vote in the peerage of Scotland, which had not been adjudged
to him. There was a question whether it was necessary for
Scotch Peers to come to that House to prove their right or their
claim to vote. Many Scotch Peers had not been required to do
so. He would suggest that the matter should be referred to a
Select Committee.
The Eael of Campeedown said that the two Resolutions
were not quite consistent. There were many persons who might
find themselves able to vote for one when they could not vote for
the other. Tbat was the position in which he found himself
placed. He could not vote in that House that Mr. John Francis
Erskine was entitled to the Earldom of Mar, because the House
would obviously in that case be acting without any evidence before
it, and in a judicial manner. He would therefore suggest that tbe
nohle Earl opposite (the Earl of Galloway) should withdraw his
second Resolution. With regard, however, to the other Resolu
tion, as to the question of precedence, he thought there was a
good deal to be said in favour of the case put before their Lord
ships by the noble Earl opposite. He asked the House to rescind
an Order of the House ; and if the House could send down
an Order it could rescind it. What had been the effect of

460 APPENDIX. no. v.
the Order t It was virtually a direction to the Lord Clerk
Register to accept the vote of the Earl of KeUie as Earl of Mar.
At the present moment the Earl of Kellie, whenever there was
an election of Representative Peers of Scotland, voted as Earl of
Mar, and in virtue of a peerage of 1450, to whicb he had never
ventured to lay claim, and which was the peerage which Mr
Erskine did claim, and which he was entitled to according to the
findings of the Scotch Courts, whatever those findings might he
worth. If Mr. Erskine wished to prove bis title conclusively he
must come to that House. But that was no reason why the
House should not rescind the Order which gave the Earl of Kellie
the privilege of voting in virtue of a peerage to which he laid no
claim. If the noble Earl opposite would withdraw his second
Resolution he should have much pleasure in voting with him.
Lord Inchiquin said, that even if the course recommended
by the noble Earl opposite (tbe Earl of Camperdown) were followed,
their Lordships by agreeing to the first Resolution, would virtu
ally declare that Mr. Erskiue was entitled to the Earldom of Mar
without having heard tbe evidence on which his claim was
founded. He thought that was a most irregular course, and one
which the House could not adopt.
The Duke of Buccleuch said, that as he had been referred
to during the debate, he might say tbat he obtained in 1862 the
abrogation of tbe Order passed at the instance of the late Earl of
Bosebery in 1822 because it did not work well. The question
was. Who was Earl of Mar ? Tbe earldom claimed by the Earl of
Kellie was the Earldom of Mar on the Union RoU. Now, very few
of the peers on the Roll were placed iu their proper position. As
he understood, the Union Roll was so named, because it was the
Roll of Peers called for by that House, after the Act of Union
between England and Scotland was passed. It was the Roll of
Peers who were called to the Scottish Parliament. He thought
Scotch peers should be called upon to go through every form
whioh an English or an Irish peer went through when he suc
ceeded his father or a collateral inheritor. They ought to prove
their right on petition to the Crown, when it would be referred to
that House, and then to tbe Lord Chancellor ; and if everything
were found by him to be in order he would report to the House ;
but if not it would be referred to tbe Committee of Privileges for
the matter to be judicially considered.
Lord Houghton questioned the fitness of the Committee of
Privileges to determine the points relating to tbe disputed Earl
dom, and argued that they could only be decided after a serious
historical inquiry.
Lord Blantyre said, surely if John Francis Goodeve Erskine

NO. V. APPENDIX. 461
ought to prove his succession to the old title of Earl of Mar, the
Earl of Kellie was equally bound to do so. It was undisputed
that the old Earldom of Mar, which owed the high place it did on
the Union Eoll from the date 1457 being attached to it, passed to
heirs-general (female as well as male), and that John Francis
Goodeve Erskine (not the Earl of Kellie) was heir-general and
next of kin to the late Earl, who died in 1866. Lord Kellie had
not claimed any title of earlier date than 1565, because there was
a nearer heir than himself .to the old Earldom of 1457 on the
Union Roll.
The Earl of Galloway, in reply, said, as far as he could
follow the arguments, they only gave reasons why the Resolution
standing on the paper should be accepted. He asked their Lordships
to rescind the Order of February 26, 1875, in order to clear the
atmosphere. He must take exception to what the noble and
learned Lord on the woolsack had said when he referred to the
Earldom of Mar, said to have been created in 1565, and said Mr.
Goodeve Erskine was a " claimant." He never was a claimant,
and no one in tbe House could show a reason why the Earl of
Mar should be put in a different position from any other Scotch
peer in the House. He wished again to say that he did not put any
stress on the second Resolution, as it would not help the question
one way or the other ; but he could not follow what his noble and
learned friend on the woolsack said, nor see any reason why tbeir
Lordships should not accept the first Resolution. He would with
draw the other, after the general support he had been accorded
on both sides of the House. If the first Resolution were not
accepted he would certainly go to a division upon it.
On Question? Their Lordships divided; — Contents, 49;
Not-Contents, 41 : Majority, 8.
CONTENTS.
Canterbury, L. Archp. Waldegrave, E.
Portland, D. Zetland, E.
Saint Albans, D. Halifax, V.
Abercorn, M. (D. Abercorn-) Hood, V.
Bristol, M. Powerscourt, V.
Bradford, E. StrathaUan, V.
Camperdown, E. Templetown, V.
Devon, E. Abinger, L.
Dundonald, E. Bateman, L.
Haddington, E. [Teller.] Beaumont, L.
Jersey, E. Blantyre, L.
Mansfield, E. Brabourne, L.
Manvers, E. Calthorpe, L.
Morton, E. Carysfort, L. (K Carysfort-)
Sandwich, E. Clanwilliam, L. (E. Clanivilliam.)

mu

APPENDIX.

NO. v.

Dorchester, L. Northwick, L.
Duusany, L. Oriel, L ( V- Massereene.)
Elgin, L. (E- Elgin and Kincardine.) Skene, L. (E- Fife-)
Ellenborough, L. Stanley of Alderley, L.
GreydePiadcliffe,L. ( ]\ Grey de Wilton-) Stewart of Garlics, L. (E- GalMoay)
Houghton, L. [Teller.']

Leigh, L.
Lilford, L.
Lyveden, L.
Meldrum, L.

[M. Huntly.]

Trevor, L.
Ventry, L.
Wentworth, L.
Windsor, L.
The Earl of GaUoway.

NOT-OONTENTS.

Selborne, L. (L. Chancellor.)
Devonshire, D.
Richmond, D.
Lansdowne, M.
Airlie, E.
Doncaster, E. (D. Buccleuch and
Queensherry. )
Granville, E.
Kimberley, E.
Lathom, E.
Kedesdale, E. [Teller.]
Spencer, E.
Wilton, E.
Clancarty, V. (E. Clancarty.)
Oranbrook, V.
Hawarden, Y.
Leinster, V. (D. Leinster.)
Melville, V.
Sherbrooke, V.
Balfour of Burleigh, L. [Teller.]
Boyle, L. (E. Cork and Orrery.)

Clinton, L.
Forbes, L.
Foxford, L. (E. Limcriek.)
Hammond, L.
Hare, L. (E. Listowel.)
Inchiquin, L.
Kintore, L. (E. Kintore.)
Level and Holland, L. [E. Egmont.]
Monson, L.
Mostyn, L.
Penrhyn, L.
Poltimore, L.
Eibblesdale, L.
Saltersford, L. (E. Courtown.)
Sandhurst, L.
Sefton, L. (E. Sefinn.)
Sherborne, L.
Shute, L. ( V. Barrington.)
Strathspey, L. (E. Seafield.)
Tredegar, L.
Winmarleigh, L.

Resolved in the Affirrnativ

so. VI. APPENDIX. 463

No. VI.
DEBATE IN HOUSE OF LORDS.
(Prom Hansard's Parliamentary Debates-)
June. 21, 1880.
The Marquess of Huntly. — I wish to put to the noble and
learned Lord on the woolsack a question of which I have given
him private notice. I wish to know. Whether any intimation
had been made to the Lord Clerk Register, in accordance with
the Resolution adopted by the House, relative to the Earl of Mar
Peerage, on the 14th instant ?
The Lord Chancellor. — I believe no intimation has been
made, and that none properly can be made, to the Lord Clerk
Register with regard to this Eesolution. The Resolution adopted
hy the House was —
"It is incumbent on the House to rescind their Order of the 26th
February 1875."
Before the House can rescind that Order there must be a motion
and a vote to do so. There has been no such vote passed ; and if
any noble Lord should propose one, I must assume that he would
come prepared to recommend to the House the adoption of what
he may consider a more proper form of Order to be substituted
for -that which has been made. The Order that was made was
consequential on a judicial act of tbe House, founded on a Report
of the Committee of Privileges ; and if that is rescinded, beyond
all question some other must be made. I hope that any one who
moves such Order will consider whether it shall be in a form
which wUl put on tbe Union Roll of Scotland two Earldoms of
Mar, or in a form which, leaving only one Earldom of Mar, will
change its precedence, and whether there are not objections of the
gravest character to either of those courses.
The Earl of Galloway. — My Lords, I gave notice — a full
fortnight's notice — of my intention to move that tbe Order be
rescinded, and tbat was fully debated on Monday last. I had
originally put down, " and it is hereby rescinded ; " but I after
wards thought that would be rather offensive in form, and 1

464 APPENDIX.

NO. VI.

considered that if the House adopted the Resolution, saying that
it was " incumbent on tbem to rescind the Order," that was virtu
ally the same as saying they intended to rescind it ; and, there
fore, I still hold that the division that took place a week ago was,
to all intents and purposes, a decision of the House that the Order
should be rescinded. Of course, after what has fallen from the
noble and learned Lord on the woolsack, all I can do is to give
notice that on the first available day I shall move that due effect
be given to tbe motion of Monday last, tbe 1 4th instant, which
stands already ofiicially recorded on the Journals of the House as
having been resolved in tbe affirmative.

June 22, 1880.
EARLDOM OF MAE.
notice of motion.
The Earl of Galloway. — I beg to give notice to the nohle
and learned Lord on the woolsack, that on Thursday, July 1st, 1
shall move-
That in accordance witb the Resolution agreed to by this
House on the 14tli June : —
" That it is incumbent upon this House to rescind their Order of 26th
February 1875, which ran as foUows, viz. : — ' That at the future meetings
of the Peers of Scotland assembled under any royal proclamation, for the
election of a Peer or Peers to represent the Peerage of Scotland in ParHa
ment, the Lord C'lerk Register, or the Clerks of Session officiating thereat
in his name, do call the title of Earl of Mar, according to its place on the
Roll of Peers of Scotland called at such election, and do receive and connt
the vote of the Earl of Mar claiming to vote in right of the aaid_^Earldom,
and do permit him to take part in the proceedinga of such election ; "
to resolve that the said Order be rescinded, and that intimation
to that effect be made to the Lord Clerk Register of Scotland.

House of Lords, Thursday, 1st July 1880.
EARLDOM OF MAR.
resolution.
The Earl of Galloway rose to move —
"That iu accordance with the Resolution agreed to by this House on
the I4th June last, ' That it is incumbent upon this House to rescind their
Order of the "ieth February 1875, which ran as follows, viz. :— "That at the

HO. VI. APPENDIX. 465
future meetings of Peers of Scotland assembled under any royal procla
mation, for the election of a Peer or Peers to represent the Peerage of
Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session
ofiiciating thereat in his name, do call the title of Earl of Mar according to
its place ou the Roll of Peers of Scotland, called at such election, and do
receive and count the vote of the Earl of Mar claiming to vote in right of
the said Earldom, and do permit him to take part iu the proceedings of such
election,' this House resolve that the said Order be rescinded, and that
intimation to that effect be made to the Lord Clerk Register of Scotland."
The noble Earl said he was in a position in which he was,
perhaps, entitled to claim their Lordships' sympathy, and he should
ask their indulgence while he attempted to put before them the posi
tion in which the House was placed on the subject of his Eesolution.
Just a month ago, on the 1st of June, he gave notice in that House
that he intended to move two Resolutions with regard to tbe Mar
Peerage. He did not wish to disguise the fact that he was very
anxious to call the attention of the public to this question ; and
for the purpose of calling public attention to it, he not only put a
notice upon the paper, but in addition — having made the public
declaration between five and a quarter past five o'clock in the usual
manner — took measures to insure the notice getting into the
hands of the reporters. That notice he had given for the 1 4th of
the month, so tbat there would be ample opportunity for every
body to know that the question was coming on ; and two days
previous to bringing on the Resolution, he took means to let every
member of their Lordships' House know that the subject was to be
discussed — a means with which all their Lordships were familiar.
Of course, he had no notion whatever as to tbe opinions of any
noble Lord on the subject. He would not weary the House by
reciting what the Resolutions were ; but the particular one which
was the subject of his notice this evening was to the effect that
in accordance with the Report of the Select Committee speciaUy
appointed to inquire into the matter three years ago — namely, in
1877 — it was incumbent on the House to rescind the Order of
Fehruary 26th, 1875, and that an Order to that efi'ect should be
sent to the Lord Clerk Eegister of Scotland. At this .time he
had put to the Resolution six words, which he afterwards with
drew, and these were, " and the said Order is hereby rescinded."
But, upon reading over his notice, he had said to himself — " Now,
it would be rather an affront to tbeir Lordships to add these
words ; for if their Lordships agreed with me that it is incumbent
on them to rescind the Order, they will, as a matter of course,
carry that Resolurion into effect;" and he need not add that it
would have been perfectly easy for him, after the Resolution was
carried, to have moved simply that the words he had left out be
added. If he had done that he was sure the motion for the addi-
VOL. II. 2 c;

466 APPENDIX.

KO. Vl.

tion would have been carried without a dissentient vote. How
ever, a week passed, and a noble friend of his opposite (the Mar
quess of Huntly), who had always taken a very deep interest in
the question, in his place,- asked the noble and learned Lord on
the woolsack, what Order he had sent to the Lord Clerk Register
in consequence of the Resolution agreed to by the House? He
would remind their Lordships that on the 1 4th ultimo the debate
lasted for over two hours. It was a very full debate ; and upon
going to a division the numbers were — Contents, 49 ; Not-Contents,
41 — which was a majority of 8 ; but had it not been for the acci
dent of one Peer going into the wrong lobby, the voting would
have been 50 to 40, or a very substantial majority, and one which
on most questions would be considered very decisive. A week
after this vote was taken, a noble friend of his opposite asked the
noble and learned Lord on tbe woolsack what Order he had sent to
the Lord Clerk Register, or —
The Lord Chancellor said, the question was not what Order
he had sent to the Lord Clerk Register, for he had no more autho
rity to send an Order from the House than had tbe noble Earl
himself. The Earl of Galloway begged the noble and learned Lord's
pardon, but wished to be allowed to finish tbe sentence. If he
might be allowed to quote tbe noble and learned Lord's reply, it
would be found tbat there was no reason to interrupt him. The
noble and learned Lord had replied that the House had given him
no authority to rescind any Order ; and that the Resolution had
only stated that it was incumbent on their Lordships to do a cer
tain thing which they had given him no authority to do. The
noble and learned Lord had added some pithy remarks which were
not pertinent to his (the Earl of Galloway's) point at the present
moment. Upon this he had immediately risen in his place and
given notice that, in consequence of that reply, he would bring
forward the present Resolution on the first available day. He
had been very much astonished to hear that anything further was
necessary, as he believed that the matter was decided once and for
all, and tbat there was nothing further for him to do in the
matter. He had found out that Thursday, 1st July, was the first
available day for bringing the matter on ; and, having chosen that
day, it had still seemed to him that he had only to move his Re
solution as a matter of form, as tbe House had already decided the
matter, aud that the question would be put from the woolsack
almost like the third reading of a Bill, or rather after the third
reading, as the question "That this Bill do pass," which was never
challenged. He had thought that there would be as much reason
to expect that the rejection of a Bill would be moved on the

NO. VI. APPENDIX. 467
motion " That this Bill do pass," as that at this stage his Resolu
tion would be' opposed. He had, therefore, been very much
astonished the morning after he had given his notice to find in
the papers the amendment of the noble Earl the Chairman of Com
mittees. He had taken some pains to find out whether the course
adopted by the noble Earl was at all customary ; and from all he
could learn it seemed that it was altogether without precedent.
He had consulted many noble Lords, but there was not one who
could point out a precedent ; therefore, he would leave it to their
Lordships to say whether the noble Earl was acting in accordance
with tbe regulations and usages of the House. Was it open to
the noble Earl to discuss his amendment at all 1 If it was, it
seemed to him that they were laying down a most dangerous pre
cedent ; and he did not believe tbat if their Lordships balloted on
the question of order, the noble Earl would have ten supporters.
For his own part, he (the Earl of Galloway) was not prepared to
transgress the rules of the House. He had made his speech on a
former occasion, and had carried his Resolution ; and he should
certainly not break the rules of the House by re-opening the ques
tion. Of course, if they permitted the amendment to be put, it
would be open to him to reply. If any other noble Lord had put
down an amendment to a Resolution, the object of whicb was
simply to render operative a Resolution of the House, he would
have been severely castigated, and castigated by none more severely
than by the noble Earl the Chairman of Committees (the Earl of
Redesdale). He would conclude for the -present by moving his
Eesolution. Moved to resolve : —
" That, in accordance with the Resolution agreed to by this House ou
the I4th .lune last, ' That it is incumbent upon this House to rescind their
Order of 26th February 1875, whioh ran as follows, viz., "That at the
future meetings of the Peers of Scotland assembled under any royal pro
clamation for the election of a Peers or Peers to represent the Peerage of
Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session
officiating thereat in his name, do call the title of Earl of Mar according
to its place on the Roll of Peers of Scotland called at such election, and do
receive and count the vote of the Earl of Mar claiming to vote in right of
the said Earldom, and do permit him to take part in the proceedings of such
election,'" the said Order be rescinded, and that intimation to that effect be
made to the Lord Clerk Register of Scotland." — (The Earl of Galloway.)
The Earl of Redesdale (Chairman of Committees) rose to
move, as an amendment, to leave out all the words after " That,"
for the purpose of inserting the following words : —
"Further consideration has led this House to consider that it would be
inexpedient to rescind the Order of the 26th February 1875, which was
made after the House had resolved and adjudged that Walter Henry, Earl

468 APPENDIX. no. vi.
of Kellie, Viscount Fenton, Baron Erskine, and Baron Dirleton, iu the Peer
age of Scotland, had made out his claim to the Earldom of Mar in the Peer
age of Scotland created in 1565, as consequential to such Resolution and
judgment, and that to rescind an Order so made in relation to a right to a
peerage adjudged after long investigation, and whioh Order has been acted
upon at several elections of Scotch Peers, without any further inquiry, and
unsupported by any new evidence, would be contrary to the practice of this
House, and establish an objectionable and dangerous precedent."
The noble Earl said, tbat, after what had fallen from the noble
Earl, it was necessary that he should explain why he had given
notice of his amendment. He believed tbe question to be one of
the deepest importance to the character of that House. They
must remember tbat that House was the highest Court of Judica
ture in the kingdom, and they must take the greatest care that
nothing was done in regard to judicial questions which affected
tbe character of the House, or its power to give judgment on these
matters. From the manner in which this question was handled,
he thought many noble Lords bad been influenced by wrong im
pressions. For instance, it had been very much tbe fashion to
treat the Committee of Privileges as if it was not the House ;
whereas, in fact, it was a Committee of the whole House. The
House bad always treated questions of peerage in that way ; and
so remarkably careful had it always been to guard against mis
carriage, that instead of requiring a quorum of only three, as at
tbe ordinary sittings of the House, it insisted, when in Committee
upon Privilege, upon e, quorum of seven. These questions of
disputed peerages were referred by the Sovereign to the House of
Lords, as the highest Court of Judicature in the kingdom, in order
to obtain the opinion of that high Court : and when the question
was decided by the House, notice was sent to the Queen of the
decision come to, and tbat decision was final, and always acted on.
He must ask their Lordships to consider what would be the effect
if any peer was, whenever he pleased, to get up and move that a
judicial decision of the House be rescinded. Tbe noble Earl now
proposed the rescinding of judicial Order; and the facts stated
showed tbat it was necessary for the House to make such Order,
as otherwise there would be nothing but confusion in the Scotch
Peers' elections. Objection was taken that tbe name of the Earl
of Mar on the Roll of Peers was not placed according to the date
at which the House had determined the peerage was granted.
There were two ways in which the question as to the date must
be considered by those who took this matter up. Nobody could
doubt that the date on the Eoll was not the proper place of the
peerage awarded by the House to Lord KeUie : but it was also not
the date of the peerage claimed by Mr. Goodeve Erskine. From

NO. VI. APPENDIX. 469
what took place before the Commission of Ranking, it was quite
evident that the Lord Mar of that day was very anxious to get the
old Earldom conferred on him, and, with that object in view, he
adduced before that Commission three important documents. One
was the charter of Isabel of 1404, the second was the Act of Par
liament of 1585, ratifying the whole right and title made to John
Earl of Mar, of the comitatus as heir by progress to Dame
Isabel; and the other was an extract of the retours of 20th March
1588, whereby John Earl of Mar was declared ber lawful heir.
Therefore, the Commission had before them all the particulars of
his descent, and all the evidence he could produce of his claim as
heir to Isabella ; but they refused to give him the date of 1404.
On the contrary, the date which they assigned to the Earldom of
Mar was 145'7, thereby altogether refusing to admit that tbe
charter of Isabel of 1404 had anything to do with the Earldom
then before them. There was no evidence whatever, from any
thing that had taken place in the Parliament of Scotland, or, since
the Union, in the House of Lords, of any person being recognised
as possessed of the ancient Earldom since the death of the last heir-
male in 1377, which had, therefore, been now extinct for 500
years. During the interval, the Crown created several Earls of
Mar ; and down to the time wben Queen Mary made Lord Erskine
Earl of Mar on the eve of her marriage, no member of the family
of Erskine was Earl of Mar. These and various other circum
stances connected with the case being brought before the Committee
of PrivUeges, the Committee came to the decision tbat Lord
Kellie had made out his claim to tbe Earldom of Mar created by
Queen Mary. Those persons who took up the case of the other
claimant did not quite accurately state the facts. They seemed to
conceive that because he got returned as heir to his uncle he was
entitled to his peerage; whereas it did not really show he was
heir to the peerage unless he could prove that the peerage went to
heirs-general. The Order which the House was now asked to
rescind had been in existence for five years, and bad been acted on
in several Scotch elections. After so long an interval, on account
of some personal feeling, noble Lords came before the House, and
urged their Lordships to say that it was desirable to rescind tbat
Order. (" No, no ! ") WeU, he asked, why was not the subject
brought forward before 1 For five years the decision of the House
had been unchallenged, and now that it was chaUenged, what was
the object of it ? He believed it was to prevent Lord Mar having
any place to answer from when the Union Eoll was called. If the
motion were carried, and the Earl of Mar and KeUie answered to
the peerage on the Roll, his vote would be objected to. Well,
was the Earldom of Mar then to have no place on the Union Roll 1

470 APPENDIX. no. vi.
A circular had been sent round to their Lordships, caUing on them
to maintain the " integrity of the Scotch Peerage," and stating
that it was being placed in danger. Who, he asked, was endan
gering the integrity of the Scotch Peerage 1 and how was it being
endangered 1 In his opinion, it was an entire misconception to
use such terms as those. He desired particularly to impress on
their Lordships not to do anything which would in any way affect
the judicial character .of that House. There was no point on
which they required to be more careful than on that. In this
country the House of Lords was the Supreme Court of Appeal;
and their Lordships should be careful not to allow the impression
to go abroad that in a matter of a judicial cliaracter the House
would be guided without consulting those capable of giving advice.
The noble Earl (the Earl of Galloway) seemed to think that any
noble Lord was capable of giving advice on a judicial question.
To carry his motion would be, in effect, to establish a dangerous
precedent. The noble Earl asked the House, without hearing
further evidence, and without conference with any one capable of
giving a judicial opinion, to rescind a judicial Order of the House.
This was contrary to tbe established practice ofthe House,and would,
if it were agreed to, establish a precedent as dangerous as it was new.
Amendment moved — -
To leave out all the words after " That " for the purpose of inserting
the following words : " further consideration has led this House to consider
that it would be inexpedient to rescind the Order of the 26th February
1875, whioh was made after the House had resolved and adjudged that
Walter Henry Earl of Kellie, Viscount Fenton, Baron Erskine, and Baron
Dirleton, in the Peerage of Scotland, had made out his claim to the Earldom
of Mar in the peerage of Scotland, created in 1565, aa consequential to such
Reaolution and judgment, and that to rescind an Order so made in relation
to a right to a peerage adjudged after long investigation, and which Order
haa been acted upon at several elections of Scotch Peers, without any
further inquiry and unsupported by any new evidence, would be contrary
to the practice of this House, and establish an objectionable and danger
ous precedent." — (The Earl of Eedesdale.)
The Earl of Camperdown observed that when noble Lords
commenced addressing the House on the Mar Peerage they invari
ably commenced by referring to one Earl, and then drifting on to
speak of all the personages mixed up in tbe vexed question of the
Mar Peerage. He ventured to think that the House was not quite
in order. The noble Earl opposite (the Earl of Galloway) did not,
when he entered into tbe question and introduced his motion, deal
with the merits of the case ; but bad rather confined himself to the
question whether the noble Earl the Chairman of Committees (the
Earl of Redesdale) was in order in putting his amendment on the
paper. When the noble Earl moved his amendment he went into

KO. VI. APPENDIX. 471
the merits of the question, and entirely avoided going into
the question of order. The noble Earl (tbe Earl of Galloway)
intended to raise a mere formal point of procedure. If the result
of the debate on the 1 4th of June had been the opposite of what
it had been, he (the Earl of Camperdown) had no hesitation in
saying that the noble Earl (the Earl of Galloway) would have
received a severe and well-deserved castigation from the noble Earl
at the table, if he had re-opened the whole question on a formal and
technical point, or a point of order. He did not even know if he
could discuss tbe merits of the amendment at the present stage of
the debate. The first question for the House to decide was, whether
the noble Earl the Chairman of Committees was in order in bring
ing forward his motion 1
Lord Blackburn said he believed the motion which the noble
Earl (tbe Earl of Galloway) had placed on the paper would do
harm rather than good to the integrity of tbe Scottish Peerage.
The question, " Who was entitled to the ancient Earldom of Mar]"
was one which could not be decided except by a tribunal compe
tent to take evidence and decide upon the evidence before
it. The question was not who should be the heir, but who
should be Earl of Mar. Lord Kellie petitioned the Crown that
he should be Earl of Mar. His petition was referred to
that House, and every one must have known that the question
referred to them was one which could not be determined with
out evidence. The House, in the ordinary course, referred the
petition to a Committee of Privileges, which was the ordinary and
constitutional mode of dealing with such a petition. During the
seven years that tbe question was before the Committee an enor
mous mass of documentary evidence had been collected. He would
not now say what the effect of that evidence would be ; but it was at
least so considerable in bulk that probably no noble Lord had read
it through. Judgment had been given by the legal Peers, and the
then Lord Chancellor (Earl Cairns) expressed an opinion upon the
point raised with grert clearness. He (Lord Blackburn) could not
now absolutely affirm that the noble Earl (the Earl of Galloway)
was wrong ; but he could not say he was right. All he could at
present venture to say waa, that no man who had not read the
evidence before the Committee of Privileges was competent to pass
an opinion on the subject. The method now adopted was not the
one by which the point could be satisfactorily decided. In a court
of justice the practice always was to examine a man's title. Mr.
Goodeve Erskine said he was the Earl of Mar. It was open to
him to petition the Crown ; the petition would be sent down to
the House, and the House would refer it to a Committee of Privi
leges. Against that the previous decision would be no bar. Let

472 APPENDIX.

NO. VI.

bim not be misunderstood. When he said it would be no bar, he
did not mean to say it would not be an important element. The
petitioner had to make out his case in every instance. In this he
would not only have to persuade the Committee that he was right,
but to make them say that the former decision was wrong. If this
question had to be re-tried, let that be done in a proper manner
Let not their Lordships make a rush without evidence, and merely
on the authority of antiquaries and persons who knew no law.
Those who wanted the House to rescind the Order of the 26th of
February 1875 said they did not want to interfere with the judg
ment of tbe House. That was very much as if, in relation to the
judgment of a court of law, persons said they did not want to in
terfere with it ; but only wanted to prevent its execution, and to
see tbat the Sheriff did not carry it into effect.
The Marquess of Huntly wished that tbe noble and learned
Lord (Lord Blackburn) had remained a little longer in his place
tbe other evening, and bad made himself more acquainted with the
facts of the case. What they wanted to do was to put this peer
age upon the Roll. That had not yet been done ; consequently,
the Order ofthe House had not been carried out. He reminded
tbe noble Earl at tbe table (the Earl of Redesdale) that he quite
misunderstood the reason why the question was allowed to slumber
for five years after the Report of tbe Select Committee. The course
whicb the affair took was as follows : — The Earl of Kellie came
before the Committee of Privileges and asked to be placed on the
Union Roll as Earl of Mar, created in 1565 ; but the ancient Earl
of Mar did not come as a claimant before this House at all. He
merely protested against his peerage being so put on the Eoll.
The Committee of Privileges went into tbe question, but they did
not decide anything about the old peerage ; all they did was to
allow the noble Earl (the Earl of Kellie) to have a peerage of Mar
of 1565. The House did not decide anything, either negatively
or affirmatively, with regard to the ancient Earldom of Mar. At
the last election at Holyrood the Earl of Mar came forward to vote,
and some noble Lords protested, and a " scene " followed. The
noble Earl opposite (tbe Earl of Galloway) then came down, and
moved that the Earldom as it stood should be brought down to the
Roll of 1565. The Report of the Select Committee distinctly said
that no Order was made with reference to the old Earldom, and
distinctly affirmed that the old Earldom was still on the RoU. Let
tbe noble Lord (the Earl of Mar and KeUie) put his Earldom on
the Roll, and leave the old Earidom to take care of itself He
objected to the assertion that the Scotch Peers treated this ques
tion on personal grounds. The point to be decided was one involv
ing more than personal interests for Scotch Peers — namely, what

NO. VI. APPENDIX. 473
was the right place on the Union Roll for the Mar Peerage ] The
matter could not be left in its present position. He hoped their
Lordships would not stultify themselves by insisting on the Eesolu
tion which had been carried the other day.
The Duke of Argyll said he was unable to understand what
was the diflBculty raised with regard to the point of order. A few
weeks ago the House came to the conclusion that it was incumbent
on it to rescind a certain Order ; but in order to carry that opinion
into effect — as it was not binding — it was necessary tbat there
should be a separate and new motion to rescind. When the motion
was placed on the paper the noble Earl (tbe Earl of Redesdale)
gave notice of an amendment. He did not see that the noble Earl
could be accused of being out of order in moving an amendment to
a new motion brought before the House, consequent on the Resolu
tion of the 14th of June. He did not intend to enter at any
length into the merits of the question. Like most other members
of the Scotch Peerage, he thought the question one of great import
ance, apart from all personal considerations. He did not think
that those who took the part of Mr. Goodeve Erskine acted from
mere personal motives, for he believed that they desired to see the
Scotch Peerage Roll made up properly for the honour of the Scotch
Peerage. He could, to a certain extent, sympathise with those
noble Lords. When the noble Earl the Chairman of Committees
(the Earl of Redesdale) spoke of " personal motives," he did not
speak of personal motives in an unworthy sense ; but he was bound
to say, not having read the evidence before the Committee, that he
was unable to give an opinion on a legal question which ought to
he decided by a legal tribunal. He did not think it would redound
to the honour of the Scotch Peerage to snatch a victory by a chance
vote. On the contrary, he thought they should abstain from any
hasty expression on so important a subject. For himself, he would
be glad if Mr. Goodeve Erskine could secure his Scotch Peerage ;
but the proper course must be taken to tbat end. One of the
subordinate questions raised was where his name should stand on
the Roll at Holyrood. The noble Duke opposite (the Duke of
Eichmond and Gordon) would know tbat that was a question which
must be gone into with the fullest evidence and material for com
ing to a conclusion. For one, he (the Duke of Argyll) knew that
his name occupied a position on the Roll whicb he ought not to do,
and the same was the case with the noble Duke (the Duke of
Sutheriand.) Noble Lords knew that those were not solitary in
stances, and if they were to go into that question, it must be done
in judicial form. If Mr. Goodeve Erskine wanted to keep bis place,
he must issue a new Commission. This question should not be
made a political or personal one ; and he believed that on tbe 14th

474 APPENDIX.

NO. VI.

of June the House was hurried into giving a vote without having
before it adequate information on the subject. He felt strongly
the plea raised by the noble Earl (the Earl of Redesdale), to be
zealous of the honour of the House when dealing with questions of
a judicial character.
The Earl of Mansfield said, that the real reason why this
question had been brought forward was, that justice had not been
done. He had looked into the decision of the Committee of Pri
vileges, and he contended that it was contrary to justice in every
way; and he could show from documents, legal and historical,
that there was no proof that the date 1565 was correct for the
Earl of Kellie's title of the Earl of Mar. He wished to ask how
the Order of the Committee in the House was originally given out 1
He had heard that no Resolution of tbe House was come to, and
that there was nothing recorded upon the Journals of the House.
Although the House had not come to any decision with regard to
the ancient Earldom of Mar, Mr. Goodeve Erskine, as the noble
Duke who had just sat down called him, but, as he preferred to
call him, the Earl of Mar, was placed in the position that he could
not present himself at the election of Scotch Peers, and insist on
having his claim to vote admitted. If noble Lords would only
look into the question and consider it, they would see the injustice
of what had been done. He knew of no individual, however,
wbo had not, after examination, adopted his view of the matter.
In Edinburgh all the lawyers in ParUament House were of one
opinion ; and when it was said that the House was acting against
the legal authorities, he would remind the House that the deci
sion of the Committee was come to against tbe opinions of the
Attorney- General for England and the Solicitor-General for Scot
land. 'They wished to see the Earl of Mar placed in a position in
which he could claim to vote for the Earldom of Mar; and at
present he could not do that. In conclusion, he expressed his
intention of supporting his noble friend on his right.
The Marquess of Lothian said, that the passing of the Reso
lution of the noble Earl (the Earl of Galloway) would only add to
the unseemly wrangles and scenes that had taken place, and would
ouly increase the difficulties of the Lord Clerk Register. He
pointed out that the proper course for Mr. Goodeve Erskine to
pursue, was to tender his vote before the Lord Clerk Register, and
raise his claim to the Earldom of Mar ; then the proper number
of Peers should protest against its being accepted ; and then the
question would be brought before tbe House of Lords for considera
tion. What would be tbe practical result if the Eesolution of
the noble Eari (the Earl of Galloway) should be carried ? Why,
there would be more confusion than at present ; and, so far as the

NO. VI. APPENDIX. 475
RoU of 1705 and the Union EoU were concerned, they have no
legal force at all. They were not authoritative documents to show
the precedence of Scotch Peers. As a Resolution, if carried,
would not put an end to the diflftculties, it could have no good
purpose whatever. It could not prevent the Earl of KeUie
answering as Earl of Mar when the title was called over. There
fore he would again suggest tbat Mr. Goodeve Erskine should
present himself at Holyrood ; that a protest should be made to
the reception of his vote, and that tbe rights and the wrongs of
his case should be brought for decision before the House of Lords ;
and he would be glad if he could prove his claim to the title.
The Lord Chancellor said, he might claim to speak impar
tially on this subject. In the first place, he was not a Scotch
Peer, neither was he one of the Lords who took part in the hearing
or the judgment of Lord Kellie's case. He was, in fact, disabled
from doing so by the circumstance of his having been counsel for
Mr. Goodeve Erskine, as an opponent to Lord Kellie's claim. He
had felt much interest in Mr. Erskine's claim, and wished very
heartily for his success ; and as far as his opinion when counsel
went — which was not for a moment to be put in competition with
that of the judicial tribunal — he bad not formed an unfavourable
opinion of Mr. Erskine's claim. He contended, therefore, tbat he
was now able to offer impartial advice ; and occupying the position
he did, he felt it his duty to offer that advice, for it appeared to
him that their Lordships had inadvertently become entangled in
a dangerous position, which, if they did not extricate themselves
from it, might be in a high degree detrimental to the character of
their Lordships in one of their functions as to which it was essen
tial they should be beyond censure or suspicion : he meant their
judicial capacity. He could not agree with the noble Earl (the
Earl of Galloway) that tbe motion he had now made could have
been regarded as a matter of form, even if no opposition had been
offered; because he himself ventured, on a former occasion, to
which reference had been made, to point out that it would be
impossible for the House simply to rescind the Resolution of the
26th February 1875, without substituting something else for it.
He had hoped that that intimation of his opinion would not be
lost on the noble Earl if he came forward to make a motion ; but
it was clear to him that the noble Earl was embarrassed by his
own success, and that he did not know what other Order to substi
tute for that which he proposed to rescind. The noble Earl talked
of the amendment as being unprecedented; but anything more
unprecedented or dangerous than, on a motion like this, after a
general debate to rescind a judicial Order, without venturing to
say what other more proper Order should be substituted for it.

476 APPENDIX.

NO. VI.

could not be imagined. If tbe noble Earl had ventured to propose
some other Order, there would have been only a choice of two
courses open to him. If he had proposed to change the place of
the title of Mar which now stands upon the Union Roll, by moving
it to a lower position on that Eoll, he would have prejudiced any
future claim by Mr. Goodeve Erskine, who might hereafter come
forward to show that there were two Earldoms of Mar, and that
the Earldom now on tbe Roll was in a position, not lower, at all
events, than tbat in which tbe more ancient Earldom, claimed by
him, ought to be. This was the very thing which the Earl of Mar
and Kellie, by his petition in 1877, had asked the House to do,
and which the Committee, then appointed to consider that petition,
for that very reason advised the House not to do. If, on the con
trary, he bad taken the other alternative, he would, in the name
of the House, without any new evidence whatever, and without
any judicial grounds before the House, have prejudged the matter
in the teeth of the decision arrived at in 1875, by placing on the
Union Roll two Earldoms of Mar ; for whatever else was doubt
ful, this was certain — that Lord Cairns (then Lord Chancellor),
Lord Chelmsford (a former Chancellor), and the noble Earl, the
Chairman of Committees, grounded their decision on reasons
absolutely inconsistent with the hypothesis of their being, at the
date of the Decreet of Eanking, two Earldoms of Mar. If they
had not beUeved that the evidence then before them proved the
extinction, and failed to prove the restoration, of the ancient
Earldom of Mar, it would have been impossible for them to hold
that a Mar Peerage was created in 1565. He did not say
whether they were right or not. He (the Lord ChanceUor)
adhered to what he had said on a former occasion — namely
that, as far as tbe judgment of the House was concerned, it had
decided only that the Earl of Kellie was entitled to a peerage
created in 1565 ; and that, if any one else could now prove his
right to a peerage of Mar of earlier date, it was open to him to
come forward and claim it. Noble Lords who took an interest in
this question, and more especially the noble Earl who spoke last
but one (the Earl of Mansfield), asked them in a debate of that
sort to proceed on the ground that injustice was done by their
former decision. Their Lordships were asked extrajudicially,
wben probably not half-a-dozen of them had even attempted to
read or consider the evidence, to decide against the deliberate
judgment of Lord Cairns and the other two learned Lords, and to
reverse a judicial decision of that House, on the ground that it
was unjust. If anything in the world required to be done
judicially, it would be such a reversal of a former Order, and the
reasons avowed for such reversal formed the most cogent argument

NO. VI. APPENDIX. 477
against the course proposed by the noble Earl. Noble Lords, who
thought themselves qualified to sit in judgment on the decisions
of that House, did not appear to have taken the trouble to inform
themselves accurately on some even of the simplest elements of
the case. The noble Earl (the Earl of Galloway) had said he
thought his motion followed naturally from the Eeport of the
Committee of 1877 ; but he (the Lord Chancellor) was astonished
at that assertion. The Select Committee of 1877 were asked by
Lord Kellie to put the title of Mar lower down on the RoU, and
the Select Committee thought that the object of the request was,
apparently, to prejudice the claim of Mr. Goodeve Erskine. They
said in effect — " If Mr. Erskine asserts his right to be Earl of
Mar, let him claim to vote ; let there be protests against his claim,
and then the matter must come to this House to be determined."
It was, therefore, adjudged that nothing should be done on Lord
Kellie's petition ; but the noble Earl (the Earl of Galloway) seemed
to think the logical consequence of that decision was that tbe con
trary course should be taken. The whole of the noble Earl's
motion was founded on the argument that it was impossible that
the peerage created in 1565 could be in the place on the Union
Eoll in which tbe peerage of Mar was now found. That would
be a very good argument if it were certain that all the peerages
were put on the Roll in their proper order ; but the peerage of
Mar was in a position on the Eoll wholly inexplicable by any
theory of tbat peerage. The original peerage was much older
than 1404. It was dealt with in 1404 in a somewhat extra
ordinary manner by the Countess Isabel, the last of the ancient
line who ever held the title before 1565 ; and tbe evidences pro
duced before King James the First's Commission of Ranking, on
whose Decreet the Union Roll was founded, carried it back to
1404, and not earlier. But it was placed, by the Decreet of
Eanking, and upon the Union Roll, next below the Earldom of
Erroll, which was not created till above half a century after 1404.
If the Union Roll ought to be corrected, and if tbat could not be
done by an application to the Court of Session, it ought to be
done in a manner quite different from that proposed by the noble
Eari. The Queen was the fountain of honour ; and if there were
errors in the Decreet of Ranking, which was made in 1606 under
Eoyal authority, let there be a petition presented to the Crown to
have those errors corrected, and possibly the Crown might be ad
vised to issue a Commission of Eeview, or might, if it were
thought fit, refer any particular question of precedence for the
determination of this House. If, under such a reference or other
wise, the House should ever have any duty to discharge in the
matter, it must proceed in a more judicial manner than that
recommended by the noble Earl.

478 APPENDIX. so. vi.
The Earl of Galloway, who rose amid cries of " Divide ! "
reminded their Lordships that he had reserved his remarks on the
merits of the case, and that, therefore, he was entitled to he
heard. The judgment of the Committee to which the Lord
Chancellor and another noble and learned Lord, who had quoted
the words of the noble and learned Earl (Earl Cairns) upon the
occasion, referred was given five years ago, and he believed that
opinions on that subject bad altered very much since then. He
would like to recall what the noble and learned Earl (Earl Cairns)
said in the debate last year, namely —
" That the peerage on the Roll which is called the Mar Peerage, is not
the peerage which has been attached in this House to the Earl of Mar and
Kellie ; and, therefore, the Earl of Mar and Kellie should not be allowed to
answer that call." — [3 Hansard, ccxlviii. 137.]
He considered that that confirmed his argument, that the Order
was uot consequential upon the judgment of the Committee of
Privileges, as suggested in the amendment of the Chairman of
Committees. The Lord Chancellor observed, that when the noble Earl
quoted that same passage from the noble and learned Earl's (Earl
Cairns') speech on the 1 4th of June, the noble and learned Earl
himself, after hearing the quotation, told him (the Lord Chan
cellor) that his words must have been incorrectly reported.
The Earl of Galloway replied, that although the noble and
learned Earl (Earl Cairns) was sitting below him when he read the
quotation, he did not oflfer to challenge its accuracy. It was rather
late ill the day for them to be told now, in the noble and learned
Earl's absence, that the report was not correct. Replying to some
of the noble Earl's (the Earl of Redesdale's) criticisms, the nohle
Earl observed that Her Majesty tbe Queen had now been upon the
throne over forty years. Supposing Her Majesty, having created
a peerage in t'ne year 1840, had now appointed Ranking Com
missioners to see that each peer was put according to his proper
precedence upon the Roll of Peers ; aud supposing that a peer
created by Her Majesty in 1840 came before those Commissioners
in 1880, and claimed to be put on the Roll for the year 1730 —
would he have a chance of succeeding in such a claim 1 (" No !")
Well, this was exactly a similar case. It was exactly forty years
after 1565 — namely, in 1605 — that the Mar Peerage of 1565 was
put upon the Decreet of Ranking. It was upon the authoritative
documents he produced tbat he was put upon the Union Roll.
(" Divide I ") He knew their Lordships were weary of this dis
cussion ; but he must say a word in reply to what fell from the
noble and learned Lord on the woolsack. It was not for him
(the Earl of Galloway) to say what new Order should be substi-

NO. VI. APPENDIX. 479
tuted for the Order he proposed to rescind. All that he said was
that the latter was at variance with the judgmeht of the Committee
of PrivUeges ; and he simply asked tbeir Lordships to support and
give effect to the Report of the Committee of Privileges. It had
been said that it was open to the owner of the title of the ancient
Earldom to go to Holyrood to vote, and thus have the validity of
his vote tested. Well, the holder of this ancient Earldom did go
to Holyrood ; but what happened t The Lord Clerk Eegister
dechned to accept his vote, or to allow him to take part in the
proceedings, threw his voting list on the floor, and told him he
was a peer of his own creation. Therefore, this course which he
now proposed was the only possible way of getting over the diflB
culty, and paving the way for a decision. If they removed the
barrier offered by that Eesolution, then they would give tbe
claimant of the title the opportunity of doing that which noble
Lords said he could do already, but which he had shown himself
to have been a witness of his not having been allowed to do. He
hoped their Lordships would not be carried away entirely by the
opinions of noble and learned Lords. He asked them, remem
bering what had been the practical result hitherto, to support
his Resolution, in order that an end might be put to this continual
confusion. The Duke of Richmond and Gordon wished to confirm the
statement of the noble and learned Lord, the Lord Chancellor, that
his noble and learned friend (Earl Cairns) denied the accuracy of
that part of the report of his speech in Hansard which tbe noble
Earl (the Earl of Galloway) had quoted. In proof of that, he
would quote another passage inconsistent with it, namely —
" Now, the Roll of Peers of Scotland is a public document, and in that
Eoll there is only one entry of the Earl of Mar. It may be in its right or
wrong place — I cannot say anything about that — it ia there, and it is to that
that this Resolution must have necessarily referred." — [Ibid. 138.]
For himself, he thought their Lordships on the present occasion
would do well to follow the advice given on that question by tbe
late Lord Chancellor, by the present Lord Chancellor, and also by
the noble Earl the Chairman of Committees.
On Question, That the words proposed to be left out stand
part of the motion 1 Their Lordships divided : — Contents, 5 2 ;
Not-Contents, 80 : Majority, 28.
CONTENTS.
Portland, D. Bute, M.
Abercorn, M. (D. Abercorn.) Bradford, E.
Ailesbury, M. Camperdown, E.
Bristol, M. Denbigh, E.

480

APPENDIX.

NO. VI.

Dundonald, E.
EUesmere, E.
Fortescue, E.
Gainsborough, E.
Clements, L. (tJ. Leit^rim.)
Clifton, L. (E. Darnley.)
Congleton, L.
Conyers, L.
Elgin, L. (E. Elgin and Kincarditie.)
Ellenborough, L.
Ettrick, L. (L. Napier.)
Forrester, L.
Grey de Radclifife, L. ( V. Grey de
Wilton.)
Houghton, L.
Leigh, L.
Lilford, L.
Meldrum, L. (M. Huntly.)
Northwick, L.
Haddington, E. [Teller.]
Mansfield, B.
Manvers, E.
Morton, E.

Sandwich, E.
Stanhope, E.
Stradbroke, E.
Liflford, V.
Strathallan, V.
Bateman, L.
Beaumont, L.
Brabourne, L.
Calthorpe, L.
Oriel, L. (V. Massereene.)
Oxenfoord, L. (E. Stair.)
Raglan, L.
Rayleigh, L.
Stanley of Alderley, L.
Stewart of Garlies, L. (E. Galloway)
[Teller,]
Stratheden and Campbell, L.
Strath nairn, L.
ToUemache, L.
Tredegar, L.
Trevor, L.
Wentworth, L.
Zouche of Haryngworth, L.

NOT-CONTENTS.

Selborne, L. (L. Chancellor.)
Devonshire, D.
Paohmond, D.
Westminster, T>.
Bath, M.
Lansdowne, M.
Northampton, M.
Airlie, E.
Amherst, E.
Annesley, E.
Cadogan, E.
Cawdor, E.
Derby, E.
Doncaster, E. (D. Buccleuch and
Qiieensherry.)
Granville, E.
Hardwicke, E.
Kimberley, E.
Mar and KeUie, E.
Minto, E.
Morley, E.
Nelson, E.
Portsmouth, E.
Ravensworth, E.
Redesdale, E. [Teller.]
St. Germans, E.
Selkirk, E.
Spencer, E.
Yarborough, E.

or, V.
Cranbrook, V.
Eversley, V.
Hawarden, V.
Melville, V.
Sherbrooke, V.
Aberdare, L.
Aveland, L.
Bagot, L.
Balfour of Burleigh, L.
Blackburn, L.
Bolton, L.
Borthwick, L.
Boyle, L. (E. Cork and Orrery.)
Carrington, L.
Castlemaine, L.
Clanwilliam, L. (E. Clanvnlliam.)
Clinton, L.
Cottesloe, L.
De L'Isle and Dudley, L.
Denman, L.
Foley, L.
Forbes, L.
Foxford, L. (E. Limerick.)
Gormanston, L. (V. Gorma-nston.)
Greville, L.
Hammond, L.
Hare, L. (E. Listowel.)
Inchiquin, L.

NO. VI.

APPENDIX.

481

Kenmare, L. (E, Kenmare.)
Ker, L. (M. Lothian.)
Kintore, L. (E. Kintore.)
Lawrence, L.
Lovel and Holland, L. (E. Egmont.)
Monson, L. [Teller.]
Mostyn, L.
Norton, L.
O'NeiU, L.
Ribblesdale, L.
Saltersford, L. (E. Courtown.)
Saltoun, L.

Sandhurst, L.
Sefton, L. (E. Sefton.)
Sherborne, L.
Silchester, L. (E. Longford.)
Strathspey, L. (E. Seafield.)
Sundridge, L. (D. Argyll.)
Vernon, L.
Walsingham, L.
Watson, L.
Wolverton, L.
Wrottesley, L.

Resolved in the Negative:

VOL. II.

482 APPENDIX. no. vu.

No. VII.
RETURN
(Pursuant to an Order of the House op Lords, dated 2d August 1880),
For A Verbatim Copy of all Protests presented at Holyrood
subsequent to the year 1865 up to this time, at each Election of a
Representative Peer or Peers of Scotland, m reference
to the Mar or any other (if any) Peerage of Scotland.
[The Protests not relating to the Earldom of Mar are left out, and those of
the Earl of Crawford are not given at length, as being printed in Letter L]

I. — Protest presented at Election, 2lst March 1867.
I, the Right Honourable Walter Coningsby Erskine, Earl of
Kellie, Viscount Fenton, Baron Erskine and Dirleton, etc., being
advised that I am in right of the title, honours, and dignity of
Mar, do hereby protest against John Francis Erskine Goodeve,
designing himself tbe Right Honourable John Francis Erskine
Goodeve Erskiue, Earl of Mar, Baron Garioch, etc., or any other
person being permitted to appear, answer, act, or vote, personally
or by signed list, or otherwise, as Earl of Mar and Baron Garioch,
or being permitted to use any of the titles, honours, or dignities of
Mar or Garioch, until he shall have established his right thereto ;
but in the meantime I waive my right to answer and vote as Earl
Mar. In testimony whereof, I have subscribed this Protest at
Holyrood, the twenty-first day of March one thousand
eight hundred and sixty-seven, in presence of the
Peers assembled. KELLIE.

NO. VII. APPENDIX. 483
IL— Protests presented at Election, 21th November 1867.
I, the Eight Honourable "Walter Coningsby Erskine, Earl of
KeUie, Viscount Fenton, Baron Erskine and Dirleton, etc., being
advised that I am in right of the title, honours, and dignity of
Mar, and having presented a petition to Her Majesty, claiming '
said title, honours, and dignity, which petition has been remitted
to the House of Lords, but has not yet been disposed of by their
Lordships' House, do hereby protest against John Francis Erskine
Goodeve, designing himself the Right Honourable John Francis
Erskine Goodeve Erskine, Earl of Mar, Baron Garioch, etc., being
permitted to appear, answer, act, or vote, personally or by signed
list, or otherwise, as Earl of Mar and Baron Garioch, or being
permitted to use any of the titles, honours, or dignities of Mar or
Garioch, untU he shall have duly established his right thereto ;
but in the meantime I waive my right to answer and vote as Earl
of Mar. In testimony whereof, I have subscribed this Protest at
Holyrood, the twenty-seventh day of November one
thousand eight hundred and sixty-seven, in presence
of the Peers assembled. KELLIE.
Protest for the Right Honourable John Francis Erskine
Goodeve Erskine, Earl of Mar, Baron Garioch, etc.
etc.
Mr. Blair, advocate, as procurator for the said John Francis
Erskine Goodeve Erskine, Earl of Mar, etc., in answer to the pro
test by the Right Honourable Walter Earl of KeUie against the
compearer's right to the title of Earl of Mar, stated that answers
to Lord KeUie's petition to have tbe title of Earl of Mar adjudi
cated to him are now in course of preparation, and will in due
time be lodged in the House of Lords. Mr. Blair therefore, on
the part of the said John Francis Erskine Goodeve Erskine, Earl
of Mar, protested against any assumption by Lord Kellie of tbat
title, and further protested that the compearer's non-appearance to
vote at this election shall in no ways prejudice his right to the
said Earldom of Mar. And thereupon asked and took instruments
in the hands of the clerk. ALEXR. BLAIR.
Holyrood House, 2,1th November 1867.

III. — Protests presented at Election, Zd December 1868.
I, John Francis Erskine Goodeve Erskine, Earl of Mar and
Baron Garioch, protest against the caUing at the election of
Representative Peers for Scotland on the third day of December

484 APPENDIX. no. vii.
next of any other Earl on the Roll before me, in respect I am the
direct heir of line and of blood of John Erskine, Earl of Mar,
Regent of Scotland, who was heir of line of the Lady Elyne or
Helen de Mar, daughter of Graitney Earl of Mar, and who was
also heir of the Lady Isabel Douglas, Countess of Mar in her own
right, and thus heir of line and of blood of the ancient Earls of
Mar, which said John Earl of Mar obtained a charter of the said
Earldom of Mar to him and his heirs and assigns from Mary
Queen of Scotland on or about the twenty-third of June fifteen
hundred and sixty-five, " as heir of Bluid to umquhUe Dame Isabella
Douglas, Countess of Mar," and which said charter was ratified by
an Act of the Scottish Parliament of the nineteenth April fifteen
hundred and sixty-seven, and was thereafter confirmed by a sub
sequent Act of the twenty-ninth July fifteen hundred and eighty-
seven, wherein, inter alia, it is enacted and declared that John, the
heir and son of the Regent, " shall be possessed of every right in
tbe person of Dame Isabel Douglas or umquhUe Robert ErU of
Mar, Lord Erskine, her heir, notwithstanding the lenth and
diuturnitie of tyme quhilk hes intervenit sensyne during the
quhilk space he and his predecessouris be tbe iniquitie of the time
hes been vrranguslie debarrit." I therefore desire and require
that the clerks of the present meeting of Scotch Peers receive
this my Protest for precedency, and record the same in their
minutes thereof.
Witness my hand and seal this thirtieth day of November
eighteen hundred and sixty-eight. MAE. (L.S.)
To the Lord Clerk Register or his deputes and
tbe Scotch Peers assembled at Holyrood
House for the election of representative
Peers for Scotland, on the thUd day of
December eighteen hundred and sixty-
eight.
I, the Right Honourable Walter Coningsby Erskine, Earl of
Kellie, Viscount Fenton, Baron Erskine and Dirleton, etc., being
advised that I am in right of the title, honours, and dignity
of Mar, and having presented a petition to Her Majesty claiming
said title, honours, and dignity, which petition has been remitted
to the House of Lords, and is under consideration of their Lord
ships, do hereby protest against John Francis Erskine Goodeve,
designing himself the Right Honourable John Francis Erskine
Goodeve Erskine, Earl of Mar, Baron Garioch, being permitted to
appear, answer, act, or vote, personally or by signed list, or other
wise, as Earl of Mar and Baron Garioch, or being permitted to use

NO. VII. APPENDIX. 485
any of the titles, honours, or dignities of Mar or Garioch, until he
shall have duly established his right thereto ; but in the mean
time I waive my right to answer and vote as Earl of Mar.
In testimony whereof, I have subscribed this Protest at
Holyrood, the third day of December one thousand
eight hundred and sixty-eight, in presence of the
Peers assembled. KELLIE.

IV. — Protest presented at Election, 1th July 1869.
I, John Francis Erskine Goodeve Erskine, Earl of Mar and
Baron Garioch, protest against the calling at the election of Repre
sentative Peers for Scotland on the seventh day of July current
of any other Earl on the Roll before me, in respect I am the
direct heir of line and of blood of John Erskine, Earl of Mar,
Regent of Scotland, who was heir of line of the Lady Elyne or
Helen de Mar, daughter of Graitney Earl of Mar, and who was
also heir of tbe Lady Isabel Douglas, Countess of Mar in her own
right, and thus heir of line and of blood of the ancient Earls of
Mar, which said John Earl of Mar obtained a charter of the said
Earldom of Mar to him and his heirs and assigns from Mary
Queen of Scotland on or about the twenty-third day of June
fifteen hundred and sixty-five, " as heir of Bluid to Dame Isabella
Douglas, Countess of Mar," and which said charter was ratified
by an Act of the Scottish Parliament of the nineteenth April
fifteen hundred and sixty-seven, and was thereafter confirmed by a
subsequent Act of the twenty-ninth July fifteen hundred and eighty-
seven, wherein, inter alia, it is enacted and declared that John, the
heir and son of the Regent, " shaU be possessed of every right in
the person of Dame Isabel Douglas or umquhile Robert Erll of
Mar, Lord Erskine, her heir, notwithstanding the lenth and
diuturnite of tyme quhilk hes intervenit sensyne, during tbe quhilk
space he and his predecessouris be the iniquitie of the time has
been wranguslie debarrit." I therefore desire and require that the
clerks of the present meeting of Scotch Peers receive this my
Protest for precedency, and record the same in their minutes
thereof. Witness my hand and seal this fifth day of July eighteen
hundred and sixty-nine. MAR. (l.s.)
To the Lord Clerk Register or his deputes and
the Scotch Peers assembled at Holyrood
House for the election of Representative
Peers for Scotland on the seventh July
eighteen hundred and sixty-nine.

486 APPENDIX. no. vii.
V. — Protests presented at Election, ith August 1870.
I, John Francis Erskine Goodeve Erskine, Earl of Mar and
Baron Garioch, protest against the caUing at the election of a Repre
sentative Peer for Scotland, on tbe fourth day of August next, of
any other Earl on the Roll before me, in respect I am the direct
heir of line and of blood of John Erskine, Earl of Mar, Regent of
Scotland, wbo was heir of line of the Lady Elyne or Helen de Mar,
daughter of Graitney Earl of Mar, and who was also heir of the
Lady Isabel Douglas, Countess of Mar in her own right, and thus
heir of line and of blood of the ancient Earls of Mar, which said
John Earl of Mar obtained a charter of the said Earldom of Mar
to him and his heirs and assigns from Mary Queen of Scotland, on
or about the twenty-third of June fifteen hundred and sixty-five,
as heir of blood to umquhile Dame IsabeUa Douglas, Countess of
Mar, and which said charter was ratified by an Act of the Scottish
Pariiament of the nineteenth April fifteen hundred and sixty-
seven, and was thereafter confirmed by a subsequent Act of the
twenty-ninth July fifteen hundred and eighty-seven, wherein,
Miter alia, it is enacted and declared that John, the heir and son of
the Regent, shall be possessed of every right in the person of
Dame Isabel Douglas, or "umquhUe Robert Erll of Mar, Lord
Erskine, her heir," "notwithstanding tbe lenth and diuturnitie
of tyme quhilk hes intervenit sensyne during the quhUk space " he
"and his predecessouris by the iniquitie of tbe time has been
wranguslie debarrit." I therefore desire and require that the
clerks of the present meeting of Scotch Peers receive this my
Protest for precedency, and record the same in their minutes
thereof. Witness my hand and seal this thirtieth day of July in the
year eighteen hundred and seventy. MAR. (L.S.)

I, tbe Right Honourable Walter Coningsby Erskine, Earl of
Kellie, having laid claim to the title, honour, and dignity of the
Earldom of Mar, and my claim having been remitted by Her
Majesty to the House of Lords, and is now under consideration of
their Lordships, do hereby protest against John Francis Erskine
Goodeve designing himself the Right Honourable Earl of Mar, or
being permitted to appear, answer, act, or vote, personally or by
signed list, or otherwise, as Earl of Mar, until he shall have duly
established his right thereto. KELLIE.
Holyrood, ith August 1870.

NO. VII. APPENDIX. 487
VI. — Protests presented at Election, 1th March 1872.
I, John Francis Erskine Goodeve Erskine, Earl of Mar and Baron
Garioch, protest against the calling at the election of a Repre
sentative Peer for Scotland on the 7th day of March present of
any other Earl on the EoU before me, in respect I am the direct
heir of line and of blood of John Erskine, Earl of Mar, Eegent of
Scotland, who was heir of line of the Lady Elyne or Helen de Mar,
daughter of Graitney Earl of Mar, and who was also heir of the
Lady Isabel Douglas, Countess of Mar in her own right, and thus
heir of line and of blood of the ancient Earls of Mar, which said
John Earl of Mar obtained a charter of the said Earldom of Mar
to him and his heirs and assigns from Mary Queen of Scotland on
or about the 23d of June 1565, as heir of blood to umquhile
Dame Isabella Douglas, Countess of Mar, and whicb said charter
was ratified by an Act of the Scottish Parliament of the 1 9th
April 1567, and was thereafter confirmed by a subsequent Act of
the 29th July 1587, wherein, inter alia, it is enacted and declared
that John, the heir and son of the Eegent, shall be possessed of
every right in the person of Dame Isabel Douglas or umquhile
Eobert Erll of Mar, Lord Erskyne, her heir, " notwithstanding the
lenth of tyme and diuturnitie quhilk hes intervenit sensyne during
the quhilk space " he " and his predicessouris by the iniquitie of
the time has been wrangously debarrit." I therefore desire and
require that the clerks of the present meeting of Scotch Peers
receive this my Protest for precedency, and record the same in
their minutes thereof.
Witness my hand and seal this iih. day of March in the
year 1872. (L.s.) MAR.
Hilston Park, Monmouth, March 4, 1872.

I, the Eight Honourable Walter Henry Erskine, Earl of Kellie,
Viscount Fenton, Baron Erskine and Dirleton, etc. Whereas my
father, the Eight Honourable Walter Coningsby Erskine, Earl of
Kellie, Viscount Fenton, Baron Erskine and Dirleton, etc., now
deceased, was advised that he was in right of the title, honours,
and dignity of Mar, and presented a petition to Her Majesty
claiming said title, honours, and dignity, whicb petition was
remitted to the House of Lords, and is now under consideration
of their Lordships. And whereas I, being my said father's eldest
son, now stand by his decease in his room and place, and am ad
vised that I am in like manner now in right of the title, honours,
and dignity of Mar, and am entitled to follow out the said proceed-

488 APPENDIX. no, vu.
ings instituted by my said father, whicb it is my intention to do,
do hereby protest against John Francis Erskine Goodeve, design
ing himself the Right Honourable John Francis Erskine Goodeve
Erskine, Earl of Mar, Baron Garioch, being permitted to appear,
answer, act, or vote, personally or by signed list, or otherwise, as
Earl of Mar and Baron Garioch, or being permitted to use any of
the titles, honours, or dignities of Mar or Garioch, until he shall
have duly established his right thereto ; but in the meantime I
waive my right to answer and vote as Earl of Mar.
In testimony whereof, I have subscribed and sealed wdth my
seal this Protest at Alloa Park, in the county of
Clackmannan, this fifth day of March one thousand
eight hundred and seventy-two, in presence of these
witnesses, James Moir, junior, writer, Alloa, and
William Pauling, his apprentice. KELLIE. (L.s.)
James Moir, Jr., witness.
William Pauling, witness.

VII. — Protests presented at Election, I8th Fehruary 1874.
I, John Francis Erskine Goodeve Erskine, Earl of Mar and
Baron Garioch, protest iigainst the caUing at the election of Repre
sentative Peers for Scotland on the 18th day of February present,
of any other Earl on tbe Roll before me, in respect I am the
direct heir of line and of blood of John Erskine, Earl of Mar,
Regent of Scotland, who was heir of line of the Lady Elyne or
Helen de Mar, daughter of Graitney Earl of Mar, and who was
also heir of the Lady Isabel Douglas, Countess of Mar in her own
right, and thus heir of line and of blood of the ancient Earls of
Mar, which said John Earl of Mar obtained a charter of the said
Earldom of Mar to him and his heirs and assignees from Mary
Queen of Scotland on or about the 23d of June 1565, as heir of
blood to umquhile Dame Isabella Douglas, Countess of Mar, and
which said charter was ratified by an Act of the Scottish Parlia
ment of the 19th April 1567, and was thereafter confirmed by a
subsequent Act of the 22d July 1587, wherein, inter alia, it is
enacted and declared that John, the heir and son of the Regent,
shall be possessed of every right in the person of Dame Isabel
Douglas, or umquhUe Robert Earl of Mar, Lord Erskine, her heir,
" notwithstanding the length of tyme and diuturnitie quhilk has
intervenit sensyne during the quhilk space " he " and his predices
souris by the iniquitie of the time has been wrangously debarrit.
I therefore desire and require that the clerks of tbe present meet-

NO, VII. APPENDIX. 489
ing of Scotch Peers receive this my Protest for precedency, and
record the same in their minute thereof.
Witness my hand and seal this 1 3th day of February in
the year 1874. MAR. (l.s.)
5 Adelaide Crescent, Brighton,
February 13th, 1874.
I, the Right Honourable Walter Henry Erskine, Eari of KeUie,
Viscount Fentoun, Baron Erskine and Dirleton, etc., being advised
that I am in right of the title, honours, and dignity of Mar, and
having presented a petition to Her Majesty claiming the said title,
honours, and dignity, which petition has been remitted to the
House of Lords, but has not yet been disposed of by their Lord
ships' House, do hereby protest against John Francis Erskine
Goodeve, designing himself John Francis Erskine Goodeve
Erskine, Earl of Mar, Baron Garioch, etc., being permitted to
appear, answer, act, or vote, personally or by signed list, or other
wise, as Earl of Mar and Baron Garioch, or being permitted to use
any of the titles, honours, or dignities of Mar or Garioch, until he
shaU have duly established his right thereto ; but in the mean
time I waive my right to answer and vote as Earl of Mar.
In testimony whereof, I have subscribed this Protest at
Holyrood, the eighteenth day of February one
thousand eight hundred and seventy-four, in presence
of the Peers assembled. KELLIE.

VIII. — Protests presented at Election, 22ci December 1876.
To the Right Honourable the Lord Clerk Register of Scotland, or the
Clerks of Session officiating in his place at the next ensuing election
of Representative Peers of Scotland.
My Lord, — I, the Eight Honourable Sholto John Watson
Douglas, Earl of Morton, do hereby object to the Right Honour
able Walter Henry Erskine, Earl of Mar and KeUie, answering to
the title of Earl of Mar, whicb stands on the Union Roll of Peers,
and voting before me, as he has no right to the said title of Mar
on the Union Roll, but only to a title of Mar recently found by
the House of Lords to have been created in fifteen hundred and
sixty-five, which creation gives his title of Mar rank below me.
In witness whereof, these presents, written by Walter
Scott, clerk to Mes,srs. Dalgleish and Bell, Writers to

490 APPENDIX. no. vii.
the Signet, are subscribed and sealed by me, at Cona-
glen, Ardgour, the sixth day of December eighteen
hundred and seventy-six, before these witnesses,
Joseph Dinning, my butler, and Alfred Cotgreave, my
footman. MORTON. (L.S.)
Joseph Dinning, witness.
Alfred Cotgreave, witness.
[First Protest of Earl of Crawford follows. —
See VoL I. p. 14.]
To the Right Honowrahle the Lord Clerk Register of Scotland, or the
Clerks of Session officiating in his place at the next ensuing election
of Representative Peers of Scotland.
My Lord, — I, the Right Honourable Charles Gordon, Marquis
of Huntly, do hereby object to tbe Right Honourable Walter
Henry Erskine, Earl of Mar and KeUie, answering to the title of
Earl of Mar, which stands on tbe Union RoU of Peers, as he has
no right thereto, but only to a title of Earl of Mar, recently found
by the House of Lords to have been created in 1565 ; and if the
said Walter Henry Erskine, Earl of Mar and KeUie, should, not
withstanding of tbe objection hereby made on my behalf, insist on
answering to the said title of Earl of Mar so standing on the said
Union Roll as aforesaid, I do hereby protest against his so doing,
and for remeid of law at a fit and proper time.
In witness whereof, I have signed and sealed these presents,
the eleventh day of November eighteen hundred and
seventy-six. HUNTLY. (l.s.)
Charles Btdwell Edwardes, witness. Estate Agent,
Minster Precincts, Peterborough.
Harvey Hall, witness, Advocate, Aberdeen.

To the Right Honourable the Lord Clerk Register of Scotland, or th
Clerks of Session officiating in his place at the next ensuing election
of Representative Peers of Scotland.
My Lord, — I, the Right Honourable Archibald Kennedy, Earl
of Cassillis, do hereby object to the Right Honourable Walter
Henry Erskine, Earl of Mar and Kellie, answering to the title of
Earl of Mar, which stands on the Union Roll of Peers, and votmg
before me, as he has no right to the said title of Mar on the Union
Roll, but only to a title of Mar, recently found by the House of

NO. VII. APPENDIX. 491
Lords to have been created in 1565, which creation gives his title
of Mar rank below me.
In witness whereof, I have subscribed these presents, writ
ten on this page by Robert Stewart, clerk to Lockhart
Thomson, solicitor Supreme Courts of Scotland, Edin
burgh, at Culzean Castle, the ninth day of November
eighteen hundred and seventy-six years, before these
witnesses, Eobert Shaw, my butler, and George Miles,
butler to Lord Davirl Kennedy, of Number 93 Queens-
gate, Kensington, London. (L.S.) CASSILLIS.
Robert Shaw, witness.
Geokge Miles, witness.

To the Right Honourable the Lord Clerk Register of Scotland, or the
Clerks of Session officiating in Ms place at the next ensuing election
of Representative Peers of Scotland.
My Lord, — I, the Right Honourable James Sinclair, Earl of
Caithness, do hereby object to the Right Honourable Walter
Henry Erskine, Earl of Mar and Kellie, answering to the title of
Earl of Mar, which stands on the Union Roll of Peers, and voting
before me, as he has no right to the said title of Mar on the Union
Eoll, but only to a title of Earl of Mar recently found by the House
of Lords to have been created in 1565, which creation gives his
title of Earl of Mar rank below me ; and if the said Earl of Mar
and Kellie should, notwithstanding of the objection hereby made
on my behalf, insist on answering to the said title of Earl of Mar
so standing on the said Union Roll as aforesaid, I do hereby pro
test against his so doing, and for remeid of law at a fit and proper
time. In witness whereof, I have signed and sealed these presents,
the 26th day of October eighteen hundred and seventy-
six. (L.s.) CAITHNESS.
PoMAR, Stagenhoe Park, Hertfordshire, witness.
Alex. Sinclair, 133 Geo. St., Edinr., witness.
To the Hight Honowrahle the Lord Clerk Register of Scotland, or the
Clerks of Session officiating in his place at the election of Represen
tative Peers of Scotland.
My Lord, — I, the Right Honourable Francis Lord Napier, do
hereby object to the Right Honourable Walter Henry Erskine, Earl
of Mar and Kellie, answering to the title of Earl of Mar on the

492 APPENDIX.

NO. VII.

Union Eoll, which stands on the said RoU with a precedence of
more than a century earlier than the title of Mar affirmed by the
House of Lords to have been created in 1 5 65, and adjudicated to
the Earl of Kellie on February 25th, 1875 ; and should the vote of
the Eight Honourable John Francis Erskine, Earl of Mar, hitherto
received at the elections as that of the representative of the ancient
Earldom of Mar on the Union Roll, be tendered, but be not received,
I further object to the rejection of the said vote. I ground this
Protest on the reasons set forth by the Right Honourable the Earl
of Craufurd in his Protest put in on the present occasion under
date of December Sth, 1876.
In witness whereof, I have signed and sealed these presents,
the (2 2d day) twenty-second day of December eighteen
hundred and seventy-six. (L.S.) NAPIER.
James Keir, Advocate, of 10 Albyn Place,
Edinburgh, witness.
Lockhart Thomson, of No. 114 George Street,
Edinburgh, witness.

IX. — Protests presented at Election, llth March 1879.
[Additional Protest of Earl of Crawford. —
See VoL L p. 21.]
I, John Hamilton Dalrymple, Earl of Stair, do hereby give my
formal adherence to the above protest of the Right Honourable
the Earl of Crawford and Balcarres.
In witness whereof, I have signed these presents, this eighth
day of March 1879. STAIR,
Oxenfoord Castle.
Michael Walter Heneage, Lt.-Col., witness.
Hew H. Dalrymple, of North Berwick, Baronet, witness.
I, Charles Gordon, Marquis of Huntly, Earl of Enzie and
Aboyne, Viscount Strathavon, Lord of Gordon, etc., do hereby
protest against the vote of the Earl of KelUe being accepted
in right of the dignity of Mar, inasmuch as the Earldom of Mar,
created iu 1565, and resolved to belong to the Earl of Kellie, is
not the Earldom on the Roll of Scotch Peers.
In witness whereof, I have subscribed these presents, at
Oundle, Northamptonshire, the fifth day of March
eighteen hundred and seventy-nine years before these

NO. VII. APPENDIX. 493
witnesses, Granville Armyne Gordon, gentleman,
residing at Orton Hall, near Peterborough, and
William Gibson, butler to me, the said Marquis of
Huntly. HUNTLY. (L.s.)
Geanvillb Armyne Gordon, witness.
William Gibson, witness.
To the Lord Clerk Register of Scotland, or the Clerks of Session offi
ciating in his place at the next ensuing election of a Representative
Peer of Scotland.
I, the Eight Honourable Alan Plantagenet Stewart, Earl of
Galloway, do hereby object to the Right Hon. Walter Henry
Erskine, Earl of KeUie, answering to the title of Earl of Mar on
the Union Roll, and protest against his vote being accepted in
right of the dignity of Mar, inasmuch as the Earldom of Mar,
alleged to have been created in 1565, and resolved to belong to
the Earl of KelUe, is not on the RoU of Scotch Peers ; and further,
seeing that the Rt. Hon. John Francis Erskine, Earl of Mar and
Baron Garioch, is the undisputed heir-general and next-of-kin of
his uncle, the late John Francis MiUer, who held and enjoyed the
ancient and only Earldom of Mar on the Union Eoll, and that the
said John Francis Erskine, Earl of Mar, having legally qualified
himself as successor to his said uncle in that dignity according to
the forms competent to the Peers of Scotland, is thus in exactly
the same position as every other Scotch Peer ; and further, seeing
that his position has been in no way affected by the decision in
1875, which conceded to the Earl of Kellie a Mar dignity by an
alleged new creation in 1565, it follows that the said John
Francis Erskine is now de jure and de facto by the laws of Scotland
reserved inviolate by the "Treaty of Union the actual tenant of the
ancient and only Earldom of Mar on the Peerage Roll of Scotland ;
and I hereby protest against his vote as Earl of Mar (should it be
tendered) being rejected, and against his being at any time and in
anyway denied the rights and dignities he inherits as representative
and holder of the said ancient and only Earldom of Mar on the
Union RoU of Scotch Peers.
In witness whereof, I have signed these presents, the
eighth day of March 1879.
GALLOWAY,
17 Upper Grosvenor Street, London.
James Milmon, witness, House Steward.
William Harvey, witness, Footman.

494 APPENDIX.

NO. VII.

To the Lord Clerk Register of Scotland, or the Clerks of Session offi
ciating in his place at the next ensuing election of Representative
Peers of Scotland.
I, William David Viscount Stormont, Baron Scone, and Baron
Balvaird, do hereby object to the Right Hon. Walter Henry
Erskine, Earl of Kellie, answering to the title of Earl of Mar on
the Union Roll, and protest against his vote being accepted in
right of the dignity of Mar, inasmuch as the Earldom of Mar,
alleged to have been created in 1565, and resolved to belong to
the Earl of Kellie, is not on the Roll of Scotch Peers ; and further,
seeing tbat the Rt. Hon. John Francis Erskine, Earl of Mar and
Baron Garioch, is the undisputed heir-general and next-of-kin of
his uncle, the late John Francis MUler, who held and enjoyed the
ancient and only Earldom of Mar on the Union RoU, and that the
said John Francis Erskine, Earl of Mar, having legally qualified
himself as successor to his said uncle in that dignity, according to
the forms competent to the Peers of Scotland, is thus in exactly
the same position as every other Scotch Peer ; and further, seeing
that his position has been in no way affected by the decision in
1875, which conceded to the Earl of Kellie a Mar dignity by an
alleged new creation in 1565, it foUows that the said John Francis
Erskine is now de jure and de facto by the laws of Scotland reserved
inviolate by the Treaty of Union the actual tenant of the ancient
and only Earldom of Mar on the Peerage Roll of Scotland ; and I
hereby protest against his vote as Earl of Mar (should it be ten
dered) being rejected, and against his being at any time and in
any way denied the rights and dignities he inherits as represen
tative and holder of the said ancient and only Earldom of Mar on
the Union Roll of Scotch Peers.
¦ In witness whereof, I have signed these presents, the tenth
of March 1879. STORMONT,
Scone Palace, Perth.
J. Morgan, witness.
W. CoLAN, witness.

To the Lord Clerk Register of Scotland, or the Clerks of Session offi
ciating in his place at the next ensuing election of a Representative
Peer of Scotland.
I, John Viscount Arbuthnott and Baron Inverbervie, do hereby
object to the Right Hon. Walter Henry Erskine, Earl of Kellie,
answering to the title of Earl of Mar on the Union Roll, and pro
test against his vote being accepted in right of the dignity of Mar,

NO. VII. APPENDIX. 495
inasmuch as the Earldom of Mar alleged to have been created in
1565, and resolved to belong to the Earl of Kellie, is not on the
Eoll of Scotch Peers ; and further, seeing that^the Eight Hon.
John Francis Erskine, Earl of Mar and Baron Garioch, is the un
disputed heir-general and next-of-kin of his uncle, the late John
Francis MUler, who held and enjoyed the ancient and only Earldom
of Mar on the Union Eoll, and that the said John Francis
Erskine, Earl of Mar, having legaUy qualified himself as a suc
cessor to his said uncle in that dignity according to the forms
competent to the Peers of Scotland, is thus in exactly the same
position as every other Scotch Peer ; and further, seeing that his
position has been in no way affected by the decision in 1875,
which conceded to the Earl of Kellie a Mar dignity by an alleged
new creation in 1565, it follows that the said John Francis
Erskine is now de jure and de facto by the laws of Scotland reserved
inviolate by the Treaty of Union the actual tenant of the ancient
and only Earldom of Mar on the Peerage Roll of Scotland ; and I
hereby protest against his vote as Earl of Mar (should it be ten
dered) being rejected, and against his being at any time and in
any way denied the rights and dignities he inherits as repre
sentative and holder of the said ancient and only Earldom of Mar
on the Union Roll of Scotch Peers.
In witness whereof, I have signed these presents, the
eighth day of March 1879. ARBUTHNOTT,
John Gordon, witness, Butler, Arbuthnott Home, Fordoun.
Arbuthnott House, Fordoun.
Wm. Tosh, witness, Footman,
Arbuthnott House, Fordoun.
To the Lord Clerk Register of Scotland.
I, WiUiam Henry Viscount Strathallan hereby protest against
the vote of the Earl of Kellie being accepted in right of tbe dig
nity of Mar, inasmuch as the Earldom of Mar created in 1565,
and resolved to belong to the Earl of KeUie, is not the Earldom
on the Roll of Scotch Peers at the Union.
In witness whereof, I have signed these presents, the 7th
day of March 1879, at Anerly, London, S.E.
STRATHALLAN. (l.s.)
Harry Lancy, witness. Land Agent,
Upper Norwood, S.E.
Frederick Bullock, witness,
Chemist, Anerley.
I, Alexander Eraser, Lord Saltoun, do hereby protest against
the Additional Protest of the Right Honourable Alexander WiUiam

496 APPENDIX.

no. vii.

Crawford, Earl of Crawford and Balcarres, dated the fourth day of
March one thousand eight hundred and seventy-nine, in respect
that the words used in the seventh section of the said Additional
Protest, viz. : " And in the present instance where there is not the
slightest evidence by writ or other competent proof that a new
peerage of Mar was ever created, their Resolution, although con
firmed by the Peers, and approved of by the Sovereign, is
inoperative, and must be held null and void" (which words refer
to the Committee of Privileges of the House of Lords), call in
question and repudiate the judgment of the House of Lords, of
date the twenty-fifth day of February one thousand eight hundred
and seventy-five, on the Mar Peerage claims, transmitted to the
Lord Clerk Register by the Clerk of the Parliaments, together
with an Order of the House of Lords, of date the twenty-sixth day
of February following referring thereto.
In witness whereof, I have subscribed this Protest at
Holyrood House, this eleventh day of March in the
year one thousand eight hundred and seventy-nine, in
presence of the Peers assembled for the election of a
Representative Peer of Scotland. SALTOUN.
Palace of Holyrood House, March llth, 1879.
My Lord,- — I desire to adhere to the Protest handed in to
your Lordship by the Lord Saltoun. BALFOUR.

X. — Protests presented at Election, lUh April 1880.
To the Lord Clerk Register of Scotland, or the Clerks of Session
officiating in his place at the next ensuing election of Representa
tive Peers for Scotland.
I, Charles Gordon, Marquis of Huntly, Earl of Aboyne and
Enzie, etc., do hereby object to tbe Right Honble. Walter Henry
Earl of KeUie answering to the title of Earl of Mar on the Union
Roll, and protest against his vote being accepted in right of the
dignity of Mar, inasmuch as the Earldom of Mar, suggested by the
Committee of Privileges of the House of Lords in 1875 to have
been created in 1565, and resolved in consequence to belong to
the Earl of Kellie, is not on the Eoll of Scotch Peers ; and seemg
that the nephew and heir-general of the late John Francis Miller,
wbo held and enjoyed the ancient and only Earldom of Mar on the
Union Roll, has legally qualified himself as successor to his said

NO. VII. APPENDIX. 497
uncle in that dignity, according to the forms competent to the
Peers of Scotland, I further protest against his vote (should it be
tendered) being rejected.
In witness whereof, I have signed these presents, the
fifteenth day of AprU 1880. HQNTLY.
William Gibson, witness (Butler).
Alejcander Cameron, witness (Valet).
At Aboyne Castle, Aberdeenshire, April 15th.
To the Lord Clerk Register of Scotland, or the Clerks of Session
officiating in his place at the next ensuing election of Representa
tive Peers for Scotland.
I, William Harry Hay, Earl of Errol, do hereby object to the
Right Hon. Walter Henry Earl of Kellie answering to the title of
Earl of Mar on the Union Eoll, and protest against his vote
being accepted in right of the dignity of Mar, inasmuch as the
Earldom of Mar, suggested by the Committee of Privileges of the
House of Lords in 1875 to have been created in 1665, and
resolved in consequence to belong to the Earl of Kellie, is not on
the Roll of Scotch Peers ; and seeing that the nephew and heir •
general of the late John Francis MiUer, who held and enjoyed the
ancient and only Earldom of Mar on the Union Roll, has legally
quahfied himself as successor to his said uncle in that dignity,
according to the forms competent to the Peers of Scotland, I
further protest against his vote (should it be tendered) being
rejected. In witness whereof, I have signed these presents, the tenth
day of AprU 1880. ERROLL.
John Reid, witness, Advocate, Aberdeen,
10th April 1880, Slains Castle, Aberdeen
shire.
George J. Fbasee, witness. Doctor of Medicine,
Cruden, Aberdeenshire, 10th April 1880.
To the Lord Clerk Register of Scotland, or the Clerks of Session
officiating in his place at the next ensuing election of Representa
tive Peers for Scotland.
I, the Right Honourable Sholto John Watson Douglas, Earl of
Morton, do hereby object to the Eight Honble. Walter Henry Earl
of Kellie answering to the title of Earl of Mar on the Union RoU,
and protest against his vote being accepted in right of the dignity
of Mar, inasmuch as the Earldom of Mar, suggested by the Com
mittee of Privileges of the House of Lords in 1875 to have been
created in 1565, and resolved in consequence to belong to the Earl
VOL. II. 2 I

498 APPENDIX. no. vii.
of Kellie, is not on the Eoll of Scotch Peers ; and seeing that the
nephew and heir-general ofthe late John Francis MUler, who held
and enjoyed the ancient and only Earldom of Mar on the Union
RoU has legally qualified himself as successor to his said uncle in
that dignity, according to the forms competent to the Peers of
Scotland, I further protest against his vote (should it be tendered)
being rejected. In witness whereof, I have signed these presents, the six
teenth day of April 1880, at Edinburgh, before these
witnesses, Matthew Montgomerie Bell, Writer to the
Signet, and WiUiam Smith, his clerk. (L.S.) MORTON.
M. Montuomeeie Bell, witness.
William Smith, witness.
To the Lord Clerk Register of Scotland, or the Clerks of Session-
officiating in his place at the next ensuing election of Representa
tive Peers for Scotland.
I, Alan Plantagenet Stewart, Earl of Galloway, do hereby
object to the Eight Honble. Walter Henry Earl of Kelhe answer
ing to the title of Earl of Mar on the Union RoU, and protest
against his vote being accepted in right of the dignity of Mar,
inasmuch as tbe Earldom of Mar, suggested by the Committee of
Privileges of the House of Lords in 1875 to have been created in
1565, and resolved in consequence to belong to the Earl of Kellie,
is not on the Roll of Scotch Peers ; and seeing that the nephew
and heir-general of tbe late John Francis Miller, who held and
enjoyed the ancient and only Earldom of Mar on the Union Roll,
has legally qualified himself as successor to his said uncle in that
dignity, according to the forms competent to the Peers of Scotland,
I further protest against his vote (should it be tendered) being
rejected. In witness whereof, I have signed these presents, the six
teenth day of April 1880. GALLOWAY
Edinburgh, l&th April 1880.
Rob. Stewart, of Number 114 George Street,
Edinburgh, Law Clerk, witness.
John MaoKay, of No. 114 George Street,
Edinburgh, Law Clerk, witness.
To the Lord Clerk Register of Scotland, or the Clerks of Session
officiating in his place at the iiext ensuing election of Represetiia-
tive Peers for Scotland.
I, John HamiUon Dalrymple, Earl of Stair, do hereby object

NO. VII. APPENDIX. 499
to the Right Honble. Walter Henry Earl of Kellie answering to
the title of Earl of Mar on the Union EoU, and protest against his
vote being accepted in right of the dignity of Mar, inasmuch a?
the Earldom of Mar, suggested by the Committee of PrivUeges of
theHouse of Lords in 1875 to have been created in 1565, and
resolved in consequence to belong to the Earl of KelUe, is not on
the Eoll of Scotch Peers ; and seeing that the nephew and heir-
general of the late John Francis MiUer, who held and enjoyed the
ancient and only Earldom of Mar on the Union Roll, has legally
qualified himself as successor to his said uncle in that dignity,
according to the forms competent to the Peers of Scotland, I
further protest against his vote (should it be tendered) being
rejected. In witness whereof, I have signed these presents, the thirty-
first day of March 1880. STAIR.
Andrew Agnew of Lochnaw, Baronet, witness,
Stranraer, 31 March 1880.
Thomas Ckabb Greig, Factor, Rephad, Stranraer, witness,
Stranraer, 3Ist March 1880.
To the Lord Clerk Register of S.cotland, or the Clerks of Session offici
ating in his place at the next ensuing election of Representative
Peers for Scotland.
I, John Viscount Arbuthnott and Baron Inverbervie, do hereby
object to tbe Right Honble. Walter Henry Earl of Kellie answer
ing to the title of Earl of Mar on tbe Union Eoll, and protest
against his vote being accepted in right of the dignity of Mar,
inasmuch as the Earldom of Mar, suggested by tbe Committee of
Privileges of the House of Lords in 1875 to have been created in
1565, and resolved in consequence to belong to the Earl of Kellie,
is not on the Roll of Scotch Peers ; and seeing that the nephew
and heir-general of the late John Francis Miller, who held and
enjoyed the ancient and only Earldom of Mar on the Union
Eoll, has legally qualified himself as successor to his said uncle in
that dignity, according to the forms competent to the Peers of
Scotland, I further protest against his vote (should it be tendered)
heing rejected. In witness whereof, I have signed these presents, the ninth
day of AprU 1880. ARBUTHNOTT.
Alexander Stuart, Landed Proprietor,
Laithers, Turriff, witness,
9th April 1880, Arbuthnott House.
David Arbuthnott, witness,
26 Colville Terrace, London.

500 APPENDIX. NO, vii.
To the Lord Clerk Register of Scotland, or the Clerks of Session offici
ating in Ms place at the next ensuing election of Representative
Peers for Scotland.
1, Charles Stuart, Lord Blantyre, do hereby object to the Right
Honble. Walter Henry Earl of Kellie answering to the title of Earl
of Mar on the Union Eoll, and protest against his vote being
accepted in right of the dignity of Mar, inasmuch as the Earldom
of Mar, suggested by the Committee of PrivUeges of the House of
Lords in 1875 to have been created in 1565, and resolved in con
sequence to belong to the Earl of KeUie, is not on the RoU of
Scotch Peers ; and seeing that the nephew and heir-general of the
late John Francis Miller, who held and enjoyed the ancient and
only Earldom of Mar on the Union EoU, has legally qualified him
self as successor to his said uncle in that dignity, according to the
forms competent to the Peers of Scotland, I further protest against
his vote (should it be tendered) being rejected.
In witness whereof, I have signed these presents, the sixth
day of AprU 1 880.
John Wilson, witness. Factor, BLANTYRE,
6th April 1880, Erskine. Erskine, 6 JjjriZ 1880.
Frederick Collett, witness. Footman,
6 April 1880, Erskine.
To the Right Honourable the Lord Clerk Register of Scotland, or th
Clerks of Session officiating in his place at the next ensuing election
of Representative Peers of Scotland.
My Lord, — I, the Eight Honourable Alexander William
Crawford, Earl of Crawford and Balcarres, Lord Lindsay, etc.,
do hereby protest against the acceptance of the vote of the Right
Honourable Walter Henry Earl of KeUie answering to the title of
the Earl of Mar, which stands on the Union EoU of Peers, or voting
in right of that title, and against the rejection of the vote of the
Eight Honourable John Francis Erskine, Earl of Mar, heir-general
and tenant of the one and only Earldom of Mar standmg on the
Union Eoll, and against the aggression upon the precedency of the
Earls created before 1565, which is the effect ofthe acceptance of
the vote of Walter Henry Earl of Kellie as tenant of an Earldom
of Mar, afdrmed to have been created in 1565, all in terms of and
upon the rationes given in my former protests of the eighth day of
December one thousand eight hundred and seventy-six, and of the
fourth day of March one thousand eight hundred and seventy-nine.
In witness whereof, I have signed and sealed these presents,
on the fifth day of AprU in the year one thousand
eight hundred and eighty.
CRAWFORD AND BALCARRES. (l.s.)
Percy Kidd, witness, Physician, Blackheath Pai-k, Loudon.
John Wright, witness, Butler, Haigh Hall, Wigan.

NO. VII. APPENDIX. 501
To the Lord Clerk Register of Scotland, or the Clerks officiating in his
place at the next ensuing election of Representative Peers for
Scotland.
I, Harry Burrard, Earl of Carnwath, do hereby object to the
Rt. Honble. William Henry Earl of KeUie answering to the title
of Earl of Mar on the Union Eoll of the Peers of Scotland ; and
I protest against his vote being accepted in right of that dignity,
if such is based on a decision of the Committee of Privileges of
the House of Lords in virtue of a creation in 1565, no such crea
tion being recorded or trace in any way found on the said Eoll of
Scotch Peers at the time of the Union, nor any power given by
the terms of Union to the Sovereign or House of Lords to add to
or to remodel in any way the Eoll as then accepted and ever since
acted upon. In witness whereof, I have signed these presents, the four
teenth day of April 1880.
CARNWATH.
Witness :
Richard Bbll"^ } Servants at BordsaU House, York.

Edinburgh, 16 April 1880.
I, the Honourable George Waldegrave Leslie, of Leslie, in
the county of Fife, husband of the Eight Honourable Henrietta
Anderson Morshead Waldegrave Leslie, Countess of Eothes, Vis
countess Ballmbreich, Baroness Leslie, whose title as Countess of
Eothes is entered on the Union Roll as of the year 1457, do
hereby protest against the Right Honourable Walter Henry Erskine,
Earl of Mar and Kellie, answering to the name and title of Earl
of Mar, as entered in the said Union Eoll as of the year 1457, at
an election of Representative Peers of Scotland, or on any other
occasion, inasmuch as the said title of the Earl of Mar of 1457 is
entered in the said Union Roll immediately before the title of
the Earl of Rothes of 1457, and also inasmuch as the said Right
Honourable Walter Henry Erskiue, Earl of Mar of 1565, and Earl
of Kellie of 1619, does not assume nor claim, and has never
assumed nor claimed, neither is he entitled to assume or claim, the
title ofthe Earldom of Mar of 1457, but has only assumed, and is
only entitled to assume, the title of the Earl of Mar of 1565, as
awarded to him by a Resolution of the Committee of PrivUeges of
the House of Lords pronounced in the year 1875, and also the
the title of the Eari of KeUie of 1619.
(L.S.) GEORGE WALDEGRAVE LESLIE.

502 APPENDIX. no. vii.

Protest by Francis Baron Napier.
I, Francis Baron Napier, do hereby object to the Earl of Mar
and Kellie answering to the title of Earl of Mar when the old
Earldom of Mar is called in its proper order on the Union Roll,
for the following reasons : —
1. Because it is contrary to reason and precedent that an
Earldom, ruled by tbe Committee of Privileges in the House of
Lords to have been created in the year 1565, should be called and
responded to in the order of a more ancient Earldom dating from
theyear 1457.
2. Because the calling of the more recent title in the order of
the older one tends to confound the Earldom of Mar, which
has been lately discovered to exist, with the ancient Earldom
famUiar to the peerage and history of Scotland.
3. Because the answering of the Earl of Mar and KeUie to the
title of Mar in the old order tends to obscure and prejudice the
claim of John Francis Goodeve Erskine to the old Earldom, a
claim heretofore recognised in the election of the Representative
Peers for Scotland, and which it is believed may yet be estabhshed
before a Committee of Privileges in the House of Lords.
4. Because the answering of the Earl of Mar and KeUie in the
order of the old title is derogatory to the dignity and precedency
of those Earls whose titles are antecedent to the date of 1565,
but whose titles are called after a title bearing that date. NAPIER.
Holyrood Palace, April IQth, 1880.

I, Alexander Eraser, Lord Saltoun, do hereby protest against
the Protest of the Eight Honourable the Earl of GaUoway,
dated 1 6th April 1880, being received, in respect tbat the said
Protest calls in question and repudiates the judgments of the
House of Lords of date the 25th February 1875 on the Mar
Peerage claims, whereby the House of Lords resolved and adjudged
that Walter Henry Earl of Kellie had made out his claim to the
honour and dignity of Earl of Mar in the peerage of Scotland, and
ordered that at the future meetings of the Peers of Scotland for
the election of Eepresentative Peers the Lord Clerk Register, or
the Clerks of Session ofiBciating thereat in his name, do caU the
tirie of Earl of Mar according to its place in the Roll of Peers of
Scotland called at such election, and do receive and count the vote
of the Earl of Mar claiming to vote in right bf the said Earldom,

NO. vn. APPENDIX. 503
and do permit him to take part in the proceedings in such
election. In witness whereof, I have subscribed this Protest at
Holyrood Plouse, the sixteenth day of April one
thousand eight hundred and eighty, in presence of
the Peers assembled for the said election. SALTOUN.
Palace of Holyrood House, April 16th, 1880.
I adhere to the Protest handed in by the Lord Saltoun. BALFOUR.

The foregoing Eeturn of Protests is certified as correct by
me George Frederick Boyle, Earl of Glasgow, Lord
Clerk Eegister of Scotland, this twenty-seventh day
of December in the year one thousand eight hundred
and eighty. GLASGOW,
Lord Clerk Register of Scotland.

Appendix of Four Answers to Protests by the Earls of KeUie
in reference to the Earldom of Mar.
[The following Answers, without date, are put up with the official papers
of the election of Zd December 1868, and are engrossed in the
Minutes of that election!]
I, Alexander Blair, advocate, for the Eight Honourable John
Francis Erskine Goodeve Erskine, Earl of Mar, Baron Garioch,
on behalf of his Lordship, hereby tender the following Answers to
the Protest now and formerly given in by the Earl of Kellie,
Viscount Fenton and Lord Dirleton, and desire that the same may
be recorded in the minutes of tbe present meeting for electing the
Representative Peers of Scotland.
1. The Earl of Kellie is not heir of line of John Earl of Mar,
subsequently Eegent of Scotland, who, by the justice of Queen
Mary and sanction of Parliament, was restored to the dignity of
Mar as heir " in Bluid " of Dame Isabella Douglas, Countess of
Mar in her own right, and also as descended from and represent
ing his ancestress Lady Elyne, or Helen de Mar, daughter of
Gratney Earl of Mar.
2. When, by the grace of His Majesty King George IV., cer
tain Acts were passed in restoring the forfeited honours of certain
noble Peers to tbe direct descendants of their bodies, John Francis
Erskine of Mar, as grandson and "lineal descendant" of the

604 APPENDIX. no. vii.
attainted Earl of Mar through his mother, the Lady Frances
Erskine, who, but for her father's attainder, would upon the death
of her only brother have been Countess of Mar in her own right,
was restored to the honours, dignities, and titles of Eari of Mar,
with all rights, privileges, and pre-eminences thereunto belonging.
3. That the restoration did no more than revive the Earldom
of Mar, with its honours, titles, and dignities in favour of the
lineal representatives or heirs of line of tbe attainted Peer, which
character the Earl of Kellie does not possess.
4. Upon the demise of tbe Eight Honourable John Francis
MiUer Erskine, Earl of Mar, in 1866, the right to the Earidom
passed y-iwg sanguinis to his nephew, the present Earl, John Francis
Erskine Goodeve Erskine, who is the son of bis sister, the Eight
Honourable Lady Frances Jemima Erskine or Goodeve.
5. That the fact of the said Earl of Mar's propinquity and of
his being tbe nearest heir of his uncle is evidenced in the usual
manner by his Lordship's service before the Sherifi' of Chancery.
6. The assumption by the Earl of KelUe of the title of Lord
Erskine in the Protest lodged by him is irregular. The Barony
of Erskine is a separate honour, forming no portion of the Earldom
of Mar. It was, before the attainder of Earl John, one of the
oldest Scottish baronies, having been in existence long before the
claim to the Mar dignities arose. It was forfeited in 1715, and
there has never been any reversal of the attainder. If there had
been, the Earl of Mar would have claimed the dignity as heir of line.
ALEXR. BLAIR.
[The following Answers, without dale, are put wp with the official papers
of the election of ith August 1870, and are engrossed in the
Minutes of that election.]
I, Alexander Blair, advocate, for the Eight Honourable John
Francis Erskiue Goodeve Erskine, Earl of Mar, Baron Garioch, on
behalf of his Lordship, hereby tender the following Answers to
the Protest by the Earl of Kellie, Viscount Fenton, and Lord
Dirleton, and desire that the same be recorded in the minutes
of the present meeting for electing a Eepresentative Peer of
Scotland. I. The Eari of KeUie is not heir of line of John Eari of Mar,
subsequently Regent of Scotland, who, by the justice of Queen
Mary and sanction of Parliament, was restored to the dignity of
Mar as heir of Dame Isabella Douglas, Countess of Mar in her
own right, and also as descended from and representing his
ancestress Lady Elyne, or Helen de Mar, daughter of Gratney
Earl of Mar.

NO. VII. APPENDIX. 505
2. When, by the grace of His Majesty George iv., certain Acts
were passed in restoring the forfeited honours of certain noble
Peers to the direct descendants of their bodies, John Francis
Erskine of Mar, as grandson and " lineal representative " of the ¦
attainted Earl of Mar through his mother the Lady Frances
Erskine, who, but for her father's attainder, would upon the death
of her only brother have been Countess of Mar in her own right,
was restored to the honours, dignities, and titles of Earl of Mar,
with all rights, privileges, and pre-eminences thereto belonging.
3. That the restoration did no more than revive the Earldom
of Mar, with its honours, titles, and dignities in favour of the
lineal representative of heirs of line of the attainted Peer, which
character the Earl of Kellie does not possess.
4. Upon the demise of the Right Honourable John Francis
MiUer Erskine, Earl of Mar, in 1866, the right to tbe Earldom
passed jwre sanguinis to his nephew, the present Earl, John Francis
Erskine Goodeve Erskine, who is the son of his sister, the Right
Honourable Lady Frances Jemima Erskine or Goodeve.
5. That tbe fact of the said Earl of Mar's propinquity and of
his being the nearest heir of his uncle is evidenced in the usual
manner by his Lordship's service before the Sheriff of Chancery.
ALEXR. BLAIR.

[The following Answers, without date, are put up with the official
papers of the election of 1th March 1872, and are engrossed in
the Minutes of that election.]
I, Alexander Blair, advocate, for the Right Honourable John
Francis Erskine Goodeve Erskine, Earl of Mar, Baron Garioch, on
behalf of his Lordship, hereby tender the following answers to the
Protest given in by the Earl of Kellie, Viscount Eentou and Lord
Dirleton, and desire that the same be recorded in the minutes of
the present meeting for electing the Representative Peers of Scot
land. 1. On the death of Thomas Earl of Mar, his sister Margaret
succeeded as Countess of Mar ; she was wife of William first Earl
of Douglas, by whom she had a son and a daughter. The former,
James Earl of Douglas, and, after tbe death of his mother, who
survived her husband, Earl of Mar, was killed at Otterburn in
1388, and, dying without lawful issue, his sister Isabella became
Countess of Mar in her own right, the Douglas honours passing to
a distant member of that family.
2. The Countess Isabella, though twice married, had no issue
by either of her husbands. By royal charter granted by King
Robert iii.. His Majesty confirmed the honours of Mar to the

506 APPENDIX. no. vii.
Countess Isabella and her second husband in liferent, and their
children in fee, whom failing " legitimis heredibus dictse Isabellse."
The liferent Earl dying in 1435, this remainder came into opera
tion, and Eobert Lord Erskine, the direct descendant and repre
sentative of Elyne or Ellen de Mar, daughter of Gratney Earl of
Mar, the grandfather of Earl Thomas, became entitled to the
dignity of Earl of Mar, and after expeding two services, assumed
and bore the title untU his death.
3. Nevertheless by a series of oppressive acts and the outrage
of all justice, the Crown seized upon the Earldom and debarred
the rightful heirs from possessing the same for a long series of
years, until Her Majesty Queen Mary, moved by the great wrong
committed by her predecessors or their advisers, by Her Eoyal
Charter confirmed by Parliament, and dated 23d June 1565,
restored the honours of Mar to Lord Erskine and his heirs, as
direct heir of line of Robert Erskine, Earl of Mar, the next heir
served and retoured to IsabeUa Countess of Mar.
4. By Act of Parliament dated 29th July 1589, the grant of
Queen Mary was specially referred to and confirmed, and it was
narrated specially, that the heirs of the Earldom had been for a
long series of years excluded from their just and lawful inheritance
aud "wranguslie debarrit frome the poss"™ of the said land,
erldome, and lordschip, pairtlie be the occasioun of tbe trubles
occurrand and interveneand and ptf'^ be the iniquitie of tyme, and
staying of the ordiner course of justice to thame, be the partiaU
dailling of sic personis as had the governamet of C Souerane Lord
predicessouris and realme." And the Parliament decerned and
declared that the Earl of Mar and his heirs have and shall have as
good right to the Earldom as if he were immediate heir to the said
Dame IsobeU Douglas, or to umquhUe Robert Earl of Mar, Lord
Erskine, her heir.
5. When, by the grace of His Majesty King George rv., certain
Acts were passed in restoring the forfeited honours of certain noble
Peers to the direct descendants of their bodies, John Francis
Erskine of Mar, as grandson and " lineal descendant " of the
attainted Earl of Mar through his mother, the Lady Frances
Erskine, who, but for her father's attainder, would upon the death
of her only brother have been Countess of Mar in ber own right,
was restored to the honours, dignities, and titles of Earl of Mar,
with all rights, privileges, and pre-eminences thereunto belonging.
This restoration did no more than revive the Earldom of Mar
with its honours, titles, and dignities in favour of the lineal repre
sentatives or heirs of line of the attainted Peer.
6. Upon the demise of the Right Honourable John Francis Miller
Erskine, Earl of Mar, in 1866, the right to tbe Earidom passed

NO. Vil. APPENDIX. 507
jure sanguinis to his nephew, the present Earl, John Francis Erskine
Goodeve Erskine, who is the son of his sister, the Eight Honour
able Lady Frances Jemima Erskine or Goodeve. That the fact of
Earl of Mar's propinquity and of his being the nearest heir of his
uncle is evidenced in the usual manner by his Lordship's service
before the Sheriff of Chancery.
7. That the Earl of Mar is the direct heir of lime of the Earl
dom revived and restored in 1565 and 1589, and the Earl of
Kellie is not.
8. That the pretended claim set up by the late Lord Kellie,
by means of which he proposed to subvert the plain letter of the
charter and Acts of Parliament as to the line of succession to the
Earldom, was grounded upon the alleged existence of a charter
from the Crown in favour of heirs-male which he was called upon
to produce, but which has not been produced, altbough the
evidence on the claim commenced as far back as 1 7th July 1868.
ALEXR. BLAIR.

[The following Answers are put up with the official papers of the
election of I Sth Fehruary 181 i, and are engrossed in the Minutes
of that election.]
I, William Frederick Hunter, advocate, for the Right Honour
able John Francis Erskine Goodeve Erskine, Earl of Mar, Baron
Garioch, on behalf of his Lordship, hereby tender the following
answers to the Protest given in by the Earl of Kellie, Viscount
Fenton and Lord Dirleton, and desire that the same be recorded
in the minutes of the present meeting for electing Representative
Peers for Scotland.
1. On the death of Thomas Earl of Mar, his sister Margaret
succeeded as Countess of Mar. She was wife of William first Earl
of Douglas, by whom she had a son and a daughter. The former,
James Earl of Douglas, and, after the death of his mother, who
survived her husband. Earl of Mar, was killed at Otterburn 1388,
and, dying without lawful issue, his sister Isabella became
Countess of Mar in her own right, the Douglas honours passing
to a distant member of that family.
2. The Countess Isabella, though twice married, had no issue
by either of her husbands. By royal charter granted by King
Robert III., his Majesty confirmed the honours of Mar to the
Countess Isabella and her second husband in liferent and their
children in fee, whom failing " legitimis heredibus dictce Isahellce."
The liferent Earl dying in 1435, this remainder came into operation,
and Robert Lord Erskine, the direct descendant and representative
of Elyne or Ellen de Mar, daughter of Gratney Earl of Mar, the

508 APPENDIX. no. vii
grandfather of Earl Thomas, became entitled to the dignity of Earl
of Mar, and after expeding two services, assumed and bore the title
till his death.
3. Nevertheless, by a series of oppressive acts and the outrage
of all justice, the Crown seized upon the Earldom, and debarred the
rightful heirs from possessing the same for a long series of years,
until her Majesty Queen Mary, moved by the great wrong com
mitted by her predecessors or their advisers, by her royal charter,
confirmed by Parliament, and dated 23d June 1565, restored the
honours of Mar to Lord Erskine and his heirs, as direct heir of
line of Robert Erskine Earl of Mar, the next heir served and
retoured to Isabella Countess of Mar.
4. By Act of Parliament dated 29th July 1589, the grant of
Queen Mary was specially referred to and confirmed, and it was
narrated specially that the heirs of the Earldom had been for a long
series of years excluded from tbeir just and lawful inheritance, and
" wrangouslie debarrit from the posessioun of the said lands earle-
dome and lordship, partlie be the occasiun of the troubles occurrand
and interveneand and partlie be the iniquitie of tyme and staying of
the ordinar course of justice to thame be the partiall deilhng of sic
personis as had tbe Governament of our Soverane Lordis predeces
souris and realm ;" and tbe Parliament decerned and declared that
tbe Earl of Mar and his heirs have and shall have as good right to
the Earldom as if he were immediate heir to the said Dame IsobeU
Douglass, or to umquhile Robert Earl of ]\Iar, Lord Erskine, her heir.
5. When by the grace of his Majesty King George iV. certain
Acts were passed in restoring the forfeited honours of certain noble
peers to the direct descendants of their bodies, John Francis Erskine
of Mar, as grandson and lineal descendant of the attainted Earl of
Mar through his mother, the Lady Frances Erskine, who, but for
the attainder of her father, would, upon the death of her only
brother, have been Countess of Mar in her own right, was restored
to the honours, dignities, and titles of Earl of Mar, with all rights,
privileges, and pre-eminences thereunto belonging. This restora
tion did no more than revive the Earldom of Mar, with its honours,
titles, and dignities, in favour of the lineal representatives of heirs
of line of the attainted Peers.
6. Upon the demise of the Right Honourable John Francis
MiUer Erskine, Earl of Mar, in 1866, the right to the Earidom
passed jure sanguinis to his nephew, the present Earl, John Francis
Erskine Goodeve Erskine, who is the son of the late Earl's sister,
the Right Honourable Lady Frances Jemima Erskine or Goodeve.
The present Earl's propinquity, and the fact that he is the nearest
heir of his uncle, the late Earl, is evidenced in the usual manner by
his Lordship's service as such heir before the Sheriff of Chancery.

NO. VII. APPENDIX. 509
1. The Earl of Mar is thus the direct heir of line of the Earldom
revived and restored in 1565 and 1824, and the Earl of KeUie is
not. 8. The pretended claim set up by the late Earl of Kellie, and
stiU insisted in by the present Earl of Kellie, by means of which he
proposed to subvert the plain letter of the charter and Acts of
Parliament as to the line of succession to the Earldom, was grounded
upon tbe alleged existence of a charter from the Crown in favour
of heirs-male, which he was called upon to produce, but which has
never been produced, nor has the Earl of Kellie been able to pro
duce any evidence of tbe change in the line of succession alleged by
him, though the evidence on the claim commenced so far back as
the 17th July 1868.. W. F. HUNTER.
Holyrood House, 18ft Feb. 1874.
At the election on 22d Deer. 1876, the minutes ofthe election
bear that " Mr. John Francis Erskine Goodeve Erskine tendered a
Protest against the Earl of Mar and Kellie answering to the title
of Earl of Mar, but as this Protest was signed by the title '.Mar,'
the Lord Clerk Register, in respect of the Resolution of the House
of Lords, dated 26th February 1875, and also of a Eeport entered
in the Journals of the House of Lords, dated 23d April 1875,
ordering inter alia that the appeal therein referred to ' should be
amended by striking out therefrom the words claiming to be Earl
of Mar,' refused to receive the said Protest."
The foregoing Appendix of Answers to Protests certified as
correct by GLASGOW,
Lord Clerk Register of Scotland.
December 21th, 1880.

PRINTED BV T. AND .V. CONSTABLK, PRINTERS TO HER MAJESTV,
AT THE EDINBUROH UNIVERSITY PRESS.

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