Descent in Scotland
I have pointed out in a previous section that peerages can be extinguished only by the failure of heirs or by attainder, and that once the Letters Patent for a peerage have been issued there is no power to vary them, short of a special Act of Parliament.
This now applies to all peerages. There is record of a dozen or so cases in English history where honours have been surrendered to the Crown and in some instances reconferred on persons other than the original grantees of their descendants. But in the time of Charles I this practice was declared to have been illegal. That decision has been reaffirmed on a number of occasions, and the doctrine laid down that a peerage is inalienable. That applied to peerages of England and Ireland.
Since the Act of Union between England and Scotland in 1707 it has also applied to peerages of Scotland - and, of course, to those of Great Britain and the United Kingdom. But up to that date the position in regard to Scottish peerages was very different. A Scottish peer could at any time resign his honours into the King's hands and either be rid of them entirely or (which was much more often the case) get a re-grant of them with altered limitation of descent, sometimes to persons who were not connected with him by blood at all.
There is an instance in the case of the family of Her Majesty the Queen. Patrick, third Earl of Kinghorne, first obtained, in 1672, a charter extending the reversionary limitation of the earldom, and then, in 1677, secured another providing that in future the title should be "Strathmore and Kinghorne".
There are several instances in the House of Douglas, of which the Duke of Hamilton is now the head. In 1547 the sixth Earl of Angus, the then head, secured a charter changing the descent of the earldom to heirs male. A century later the second Duke, on succeeding his brother, resigned his honours into the King's hands in order to secure still further alterations. His successor, his niece Anne, Duchess in her own right, in turn took a similar step to secure other terms regulating descent.
Anne married the first Earl of Selkirk, who was himself created Duke of Hamilton, with other duplications of his wife's titles, for life - a not uncommon happening in Scotland in those days when a peeress in her own right married a commoner or a peer of lesser degree. Subsequently the Duke surrendered his own earldom and subsidiary honours into the King's hands and they were reconferred on his second son and his heirs, with a remainder ensuring that should his and other designated cadet lines fail the peerages should revert to the dukedom until such time as a duke inherited who had a younger brother to start a fresh line of earls.
Twice the situation so contemplated has arisen. The first time was in 1885, when this first line of Selkirk earls ended with the sixth Earl, who died without male issue. The earldom then reverted to the senior line and became vested in a younger brother of the twelfth Duke. He, however, died shortly afterwards, unmarried, and the peerages again passed to the dukedom. With the senior line they remained until the death of the thirteenth Duke in 1940. The present Duke, the fourteenth, has two younger brothers, and the elder of these, Group Captain Lord Nigel Douglas-Hamilton, RAF, became entitled under the arrangement of 1688 to claim the earldom. As he was on active service, Lord Nigel took no steps to do so at the time, but after the conclusion of the war with Germany in 1945 he proved his claim in the Court of Lord Lyon and assumed the title. Shortly afterwards, when there was a fresh election of Scottish representative peers following the dissolution of Parliament, he was chosen one of their number and so joined his elder brother in the House of Lords.
Such "shifting remainders", as they are termed, are confined now to arrangements made in regard to Scottish peerages before the Act of Union. In regard to English peerages or those of Great Britain or the United Kingdom they were held to be invalid by the decision of the House of Lords in the case of the Buckhurst Barony held by the Earls De La Warr.
A similar scheme to prevent the merging of peerages was entered into by the fifth Earl of Haddington, when he married a lady who subsequently became Countess of Rothes in her own right. To prevent the merger of the two earldoms it was contracted at the time of the marriage, with Royal consent, that while the Earldom of Rothes should go to the eldest son of the marriage, the Earldom of Haddington should go to the second son (or, as it turned out, his son). Very conveniently the couple had two sons and the arrangement was carried out, with the result that the two lines are distinct to this day.
The Haddington family provides still another instance of this - to English minds - free and easy practice of dealing with peerages. Sir Thomas Hamilton, the first of the line to be ennobled, was originally created Earl of Melrose, but eight years later, on the death of Sir John Ramsay, Earl of Holderness and Viscount Haddington, and with the consent of the Crown, he changed the title of Earl of Melrose for that of Earl of Haddington - for what reason history is silent.
There are a series of resignations of honours in the history of the Earldom of Caithness. The first Earl, at one time High Chancellor of Scotland, had succeeded his father as Earl of Orkney, but was induced to resign this into the hands of the King and received the Caithness title instead. Both he and two subsequent holders of the title resigned it in favour of their successors.
The final instance in this family has all the elements of a comic opera plot. George, the sixth Earl, being very much in debt, arranged to transfer both honours and lands to his principal creditor, Sir John Campbell of Glenorchy (who afterwards married his widow), an arrangement which the Crown confirmed. When the Earl died without issue Campbell accordingly claimed both title and lands, although the title was promptly assumed by the late Earl's heir male, George Sinclair of Keiss.
Charles II, advised that Campbell had a legal right to the dignity, granted him a charter, dated June 28, 1677, conveying both title and lands to him. Whereupon Campbell embarked on an armed invasion of the lands of Caithness to enforce his claim, an event which is commemorated by the famous Scottish song, "The Campbells are coming".
The comic opera motif is sustained by a happy ending. The King eventually became persuaded of his error. The Earldom was restored to the rightful heir, and Campbell, losing nothing by the episode, was in 1681 created Earl of Breadalbane and Holland, with the precedence of his 1677 charter, and with a viscountcy and four baronies thrown in as make-weight.
So one could go on citing instances from the Scottish peerage. Many of its noble houses secured re-grants of their honours at one time or another and for one reason or another. There is on record the case of one peer who secured Royal approval for a change of title merely because, on reflection, he came to the conclusion that he no longer liked his original style! This was Sir George Ramsay, ancestor of the Earls of Dalhousie, who, having been created Lord Ramsay of Melrose in August 1618, got his style altered to Lord Ramsay of Dalhousie within six months.
The practice, as some of the instances I have quoted show, persisted long after the union of the Crowns of Scotland and England, but with the union of the two Kingdoms in 1707 it ceased, and the descent of Scottish peerages is now fixed unalterably in accordance with the various charters or Letters Patent as they then existed. Nor can they any longer be surrendered to the Crown.