The peerage of Scotland is very similar to that of England, and, before the Union, the principal difference between the two countries was the persistency with which the Scottish peerage remained attached to the land. Until a late date a patent creating a Scottish peerage erected certain lands into a barony or earldom as the case might be, and entailed those lands with the dignity. The difference arising from this form of procedure was more than counterbalanced by the recognised and constantly-adopted procedure of resigning a Scottish inheritance into the hands of the Crown, and then obtaining what is known as a “Novodamus,” with either the same or different limitations.
The many Scottish remainders, which are quite unknown to English peerage law, are all a consequence of this territorial nature of a Scottish peerage. One of the chief differences at the present time between an English and a Scottish peerage is to be found in those which are heritable by females. Unless governed by special remainder contained in the instrument of creation, a Scottish peerage, which in the event of failure of a male heir devolves upon a female heir, differs from an English one in its manner of descent. In Scotland the elder daughter inherits as of right, standing in the line of heirship next after her youngest brother and before any uncle or a younger sister. On the other hand, such an inheritance is only known by virtue of a special remainder in England. All Baronies by writ are Baronies in fee in England, and heritable by the heir general, which means that they can if necessary devolve upon females. If the only child of a peer having such a peerage be a daughter she inherits in her own right, but if his issue is two daughters, then the peerage falls into abeyance between them, because under the law of England there is no seniority amongst daughters, and as both of them cannot enjoy one single peerage, neither of them has it, and it remains in abeyance until the Crown interferes or until by the natural course of events one line becomes extinguished by the extinction of all issue of the one daughter, when the peerage then at once devolves upon the heir of the other. Sometimes an abeyance will last several hundred years, sometimes it may end with the lapse of one or two; but at any time during the continuance of an abeyance the Crown may, at its entire pleasure, signify that any co-heir shall enjoy the peerage. This is what is termed the determination of an abeyance, and this is effected by the issue of a writ of summons to Parliament if the co-heir be a male or by the issue of letters patent in the case of a lady. The co-heir in whose favour the abeyance is determined then at once enjoys the peerage with the same designation and precedence as those who have held it hitherto, and his or her heir succeeds in due course.
Although there is one judgment to the contrary, it is now pretty universally admitted that there is no such thing as an Irish Barony by writ. With the union of England and Scotland, no further peerages of either country were created, and subsequent peerages were either of Great Britain or of Ireland; and it has been already judicially decided by the House of Lords that the power to create a Scottish peerage does not now exist in the Crown. There is no similar judgment in relation to a peerage of England, but the fact is that no attempt has since been made to create one, and though the point up to the present time still has to be decided, it is certainly a matter for argument whether or not such a right remains. Since the union of Great Britain with Ireland no further peerages of Great Britain or of England have been created, but the right to create peers of Ireland was specifically retained under certain conditions and has been constantly taken advantage of. Other peerages since created have, however, been of the United Kingdom. Whether or not we shall ever have peerages of the Empire remains a matter for the future.
Since the latter part of the seventeenth century it has been the custom for peers and peeresses in their own right to sign simply by the designation of their peerage. The peeress by marriage prefixes her Christian name or initials to her husband’s title. It is statute law in Scotland, but not in England, that no person may sign his surname without prefixing a Christian name or initials. A peeress by marriage who is also a peeress in her own right signs first her husband’s title, adding her own afterwards; for instance, the signature of the Countess of Yarborough is Marcia Yarborough, Fauconberg and Conyers. One cannot call to mind in recent times any instances in which the peeress in her own right has married a peer of lower rank than her own, and until such a case occurs it is difficult to forecast what the signature should be. A peeress by marriage after re-marriage loses all privilege of peerage and precedence, and all right which she acquired by marriage, but as a matter of courtesy she usually retains her peerage designation if her subsequent marriage is to a commoner.
The daughter of a peer if married to another peer takes the precedence of her husband and relinquishes her own, but she retains it if she marries a commoner; and one of the anomalies of the English scale of precedence is to be found in the following circumstances. If the two elder daughters of a Duke were to marry an Earl and a Baron respectively, whilst the youngest daughter were to run away with the footman, she would, nevertheless, rank as the daughter of a Duke above her sisters ranking as wives of an Earl and a Baron.
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Missing or incorrect punctuation has been regularized.