Appendix - Strathmore Peerage [1830] UKHL 4_WS_App_89
Speeches of Lord Chancellor Eldon and Lord Redesdale , in delivering their Opinions in the Committee of Privileges of the House of Lords, on the Claims to the Strathmore Peerage .— March 1821.Lord Chancellor .—My Lords, your Lordships at length are called to the duty of expressing your opinion upon this case. Very early after the death of the Earl of Strathmore, who sustained the characters both of a British Peer and of that which, in the discussion before your Lordships, has been called a Scotch Peer, questions arose which rendered it my duty to suggest, that it was desirablePage: 90 ↓
My Lords,if I had had to reason from what had been decided in a case of this nature, recollecting what passed in this House in the case of Shedden v. Patrick , I might have ventured to say, that, under the circumstances of this case, this child could not be legitimate. My Lords, I still retain that opinion, notwithstanding all I have heard at the bar, and I wish only, for my own sake, to take care that it may not be supposed I have given an opinion on points on which it is not necessary to say any thing. The illegitimacy of this child appears to me to be made out by the circumstances which I shall shortly state;—I mean, the birth of his father in England:—the fact, that his father was not, as his ancestors were, (provided he was legitimate I should call them his ancestors), a mere Scotch Peer, but that he was, as Earl of Strathmore, British :—that he was as Baron Bowes a British Peer:—that the mother was an Englishwoman;—I do not recollect that she had ever been in Scotland at all; if she had ever been in Scotland at all, it escaped my recollection :—that the marriage was in England:— that the domicile of Baron Bowes was principally in England; that her domicile was certainly altogether in England;—and under the circumstances it does appear to me, attending to the principle which this House meant to maintain in Shedden v. Patrick , that—withoutPage: 91 ↓
Lord Redesdale .—My Lords, in stating what occurs to me upon this case, I will trouble your Lordships with very few words. My Lords, I think it is necessary to consider the effects the articles of Union and the subsequent Acts of Parliament, referring to the realms of England and Scotland, at one time distinct, have had upon this question. My Lords, by the articles of Union that distinct Peerage of England and Scotland ceased to exist; there was no such realm as the realm of Scotland or the realm of England—there was thenceforward only the kingdom and the realm of Great Britain; and all persons who were within the two distinct kingdoms before the Union of England and Scotland, and the subjects of these two distinct kingdoms, became henceforth the subjects of the new kingdom of Great Britain. My Lords, by the articles of Union, the persons who were before Peers of the realm of Scotland became Peers of the realm of Great Britain by the express words of one of the articles of Union—the 23d article. My Lords, there is an express distinction between the character of Peer of the realm and Lord of Parliament. A Lord of Parliament has a distinct character—a Peer of the realm is one thing, a Lord of Parliament is another thing. Your Lordships know, that those who are frequently called Spiritual Lords are not Peers too, but are simply Lords of Parliament; and so the sixteen elected Peers of Scotland, as elected Peers, are Lords of Parliament, though capable of being so elected only in consequence of their being Peers of the realm of Great Britain, having been previously to the Union Peers of Scotland.My Lords,when they became, by the Act of Union, Peers of Great Britain, they claimed a right of inheritance in a dignity appropriated to Scotland, but a dignity in the realm of Great Britain, namely, the dignity of a Peer of Great Britain;—they acquired a new right hereditary throughout the country, and they lost the character, except for the purpose of the election of Peers of the realm of Scotland, which for all other purposes then ceased to exist. My Lords, as Peers of the realm of Great Britain, they must be subject to the laws of Great Britain, and not to the peculiar laws of a particular district; for thenceforward England was not one district and Scotland another district, locally governed by their own particular laws, but both of them subject, for all general purposes, to the general laws of the United Kingdom. If your Lordships will look at the Act ofPage: 92 ↓
My Lords,the consequence seems to me, that the rights of the Peers of the kingdom of England before the Union, must be considered as the rights of all the persons who, by the Act of Union, were constituted Peers of Great Britain after the Union, so far as they were to be considered Lords of Parliament; that general right being qualified in respect of those persons who, previous to the Union, were Peers of the realm of Scotland, because, with respect to them, the character of Lords of Parliament was given only to the sixteen Peers elected out of the general body.By the articles of Union, and by the Acts of the two Parliaments of England and Scotland which confirmed the Union, all the laws of England or Scotland inconsistent with the articles of Union were repealed; and consequently no law of Scotland, no law of England, inconsistent with the articles of Union, had henceforth any force. If therefore the law of Scotland, taken by itself and before the Union, could affect the character of a Peer born or domiciled in Scotland, but who had become by the articles of Union a Peer of Great Britain, I do apprehend that law could have no effect upon his character as a Peer of Great Britain. My Lords, if, therefore, the rights of the Peers of the realm of England were, upon the Union, communicated in this manner, by amalgamating in one body, as one may say, the Peers of Scotland and the Peers of England, as existing before the Union, and making the two Peers of one realm, namely, the realm of Great Britain; and if, as I think, it is evident from the whole frame and texture of the articles of Union, the laws of England were those which were to attach on the United Kingdom, except as they were qualified by particular provisions respecting Scotland, the consequence would be, that any law of Scotland, differing from the law of England prior to the Union, respecting particular succession to the dignity of a Peer of Great Britain, must be inconsistent with the articles of Union; and consequently the Peers of the former realm of Scotland would become Peers of England, and the laws which made them particularly Peers of Scotland would be held to be repealed.My Lords,with respect to the particular question now before your Lordships, the infant who claims, as son of the late Earl of Strathmore, the dignity of Earl of Strathmore, now a dignity of the Peerage of your Lordships, united in the kingdom of Great Britain and Ireland,—for that is the effect of the subsequent union with Ireland,— stood in this situation: He was born in England, born of a British mother, and of a father of whom I must say, in conformity to what has been decided, particularly in the Marquis of Annandale's case, a father domiciled in England. My Lords, with reference to the fact of his being one of those persons who for certain purposes are called Scotch Peers, (but only for certain purposes so called, being all now Peers of Great Britain), if that course could operate to make any change, consider what would be the effect of it. The Duke of Richmond is Duke of Lennox: is the Duke of Richmond therefore to be considered as a Scotsman on that account, distinct from his character arising from his domicile and his residence in England? A noblePage: 93 ↓
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Lord Chancellor .—I wish it to be distinctly understood, that I do not mean to intimate any opinion to your Lordships, what might have been the law as applicable to this case, if those parties had been married in Scotland: That that case is open to inquiry, investigation, and decision, whenever it arises; and I take leave to make that addition to what I have before said, because I do apprehend, that the succession of Scotch Peers, by which I mean Peers domiciled in Scotland, and ipso facto Scotchmen, is to be regulated by the Scotch law.The question was put by the chairman, That the petitioner, John Bowes, is not entitled, and has not made out his claim to the titles and dignity of Earl of Strathmore and Kinghorn, Viscount Lyon, &c. and that the petitioner, the Right Honourable Thomas Bowes, has made out his claim to the titles and dignities of Earl of Strathmore and Kinghorn, Viscount Lyon, &c.: Which being put, passed in the affirmative.