Female Succession in Scotland
Abeyance, as I have said, is peculiar to England. It has never existed in Scotland, and in that Kingdom, in default of male heirs, a peerage not limited in descent to the male line passes at once to the elder or eldest daughter or nearest female heir. Nor is it confined to baronies but occurs in some of the higher peerages. At least one dukedom, that of Hamilton, has passed to and through a female, though I am not able to say whether that could occur again. Decision would depend on the terms of a re-grant of the dignities which Anne, Duchess in her own right, obtained in 1661, and of those terms I have no knowledge. It is also possible that the Dukedom of Montrose, as well as other honours of that House, could pass to or through a female under a charter of 1707 ratified by Act of Parliament.
But certain earldoms undoubtedly are open to female inheritance. A case famous in history is that of Buccleuch. Anne Scott was Countess of Buccleuch in her own right - and incidentally the greatest heiress in the country - when she married James Crofts, illegitimate son of Charles II, and known to history as the Duke of Monmouth. Monmouth changed his name to Scott and on the day of the marriage the couple were created Duke and Duchess of Buccleuch. His honours were forfeited when he was convicted of rebellion against James II, but the Duchess's were unaffected by the forfeiture and attainder pronounced against him, and this included the dukedom, for her creation in this rank had been separate and apart from his.
The attainder against the Dukedom of Monmouth has never been revoked, but it is an interesting fact that the Duchess's grandson and heir, the second Duke of Buccleuch, obtained a restoration, by Act of Parliament in the reign of George II, of Monmouth's minor titles of Earl of Doncaster and Baron Scott of Tindale. The restoration, as Mr. Vicary Gibbs points out in The Complete Peerage, forms a unique exception to the rule that peerages are restored only where the attained ancestor was fighting on behalf of a de facto or de jure Sovereign.
I have heard curiosity expressed as to the reason of this partial restitution. If the minor honours were restored, why was the dukedom withheld?
I think there is no doubt the reason was that in the meantime a peerage of Monmouth had been bestowed on another family. In 1689, four years after Monmouth's execution and attainder, Charles Mordaunt, Viscount Mordaunt, was created Earl of Monmouth. This earldom, which eight years later became united to that of Peterborough, continued until 1814, when both became extinct. If this in fact was the reason why the Dukedom was withheld in 1743, it ceased to be valid after 1814. But at this time of day it is unlikely that the Buccleuch family will seek further restitution, even with a Dukedom as the prize, seeing that Monmouth's great-grandson, the third Duke, acquired a second dukedom by inheriting from a kinsman, under a special remainder, that of Queensberry.
There have been several instances in modern times of Scottish earldoms passing to female heirs. Thus when the late Earl of Dysart died without issue his earldom and the Barony of Huntingtower passed to his niece, though the family baronetcy, which was slightly older than the peerages, but restricted to male succession, passed to a kinsman. Similarly, the late Earl of Seafield was succeeded in his earldom and Scottish viscountcies and baronies by his daughter, an only child, though his baronetcy and his United Kingdom Barony of Strathspey, which are restricted to male descent, devolved on his brother.
An interesting case because of its possibilities is that of the Earldom of Sutherland, the oldest of the Duke of Sutherland's peerages and one of the oldest on the Scottish roll. Paternally, the Duke is English, descended from the ancient Yorkshire family of Gower (the family name is now Sutherland-Leveson-Gower). His great-great-grandfather, the second Marquess of Stafford, married Elizabeth, Countess of Sutherland in her own right, and was later created Duke of Sutherland. The present fifth Duke has no children, and his only brother died leaving an only daughter, who is thus heiress presumptive to the Scottish earldom and the Barony of Strathnaver. The heir presumptive to the Dukedom and the Gower peerages of England and Great Britain, which follow the male line, is a cousin, a grandson of the second Duke. In due course, therefore, the peerages will be parted and we shall have the unusual position of a Dukedom and an Earldom of Sutherland existing separately.
But if the dukedom thus loses its ancient Scottish earldom it seems likely to gain another of the United Kingdom, for the heir presumptive has no children, and the next heir is the Earl of Ellesmere, head of a cadet branch of the family descended from the second son of the first Duke.