In the United Kingdom there are five groups of peerages that require to be considered -

The Peerage of Scotland - These peerage dignities were granted under the Law of Scotland down to the time of the Union Settlement of 1707. Although Scottish peers and peeresses now sit in the House of Lords as of right from the Union Settlement of 1707 to the passing of the Peerage Act 1963 the Scottish peers elected sixteen of their number to sit in the House of Lords. This worked well as it avoided the problems of non-appearance or backwoodsmen peers. Since 1963 all Scottish peers and peeresses have had the right to sit in the House of Lords.

The Peerage of England - These peerage dignities were granted under the Law of England down to the time of the Union Settlement of 1707. All of these were included in House of Lords of the Parliament of Great Britain.

The Peerage of Great Britain - These peerage dignities were granted between the Union Settlement of 1707 and the Union Settlement with Ireland in 1801.

The Peerage of the United Kingdom of Great Britain and Ireland - These peerage dignities were granted between the Union Settlement of 1801 and the present time. This peerage includes life peers and peeresses as well as hereditary peers.

The Peerage of Ireland - From the time of the Union Settlement of 1801 to the Irish Free State Act 1922, twenty eight representative Irish peers were elected for life to serve in the House of Lords. After the Act of 1922 no further representative Irish peers were elected and the last of the elected Irish peers, Lord Kilmorey, died in 1961 and in a Judgement Lord Reid observed ''As Ireland as a whole no longer existed politically, there could be no election to represent something that did not exist'': and thus, even though no expressed enactment had deprived the Irish peers of their right, he held that the right no longer existed.

It is approriate that the various ranks in the Peerage, (viz: Duke, Marquess, Earl, Viscount, Lord of Parliament), be considered.

Duke - This is the highest rank in the Scottish Peerage. The title was introduced into Scotland on 13th April 1398 when Robert III created his son David, Duke of Rothesay, and on the same day created his uncle Robert, Duke of Albany. The Dukedom of Rothesay was later reserved for the Heir Apparent to the Crown of Scotland, and is today reserved for the Heir Apparent to the Crown of the United Kingdom. None of the Dukedoms has ever been a separate Sovereignty as some have been on the Continent. Of all the titles of peerage, that of Duke has been the most sparingly created. For 270 years after the Norman conquest, the Kings of England, possibly owing to the fact that they were themselves Dukes of Normandy or of Aquatine in the Peerage of France, refrained from conferring a title similar to their own, and the first creation in England was in 1337 when King Edward III created his eldest son, Edward of Woodstock, (The Black Prince), Duke of Cornwall. For more than two centuries thereafter, the ducal title was reserved for those who were sons of the King, or, with two exceptions, his kinsfolk. By curious coincidence the forfeiture on 20 December 1567 of Sir James Hepburn, Duke of Orkney, so created 12 May 1567 - (perhaps better known as the ''Earl of Bothwell''), had also made the title of Duke extinct for a period in Scotland (save for the Dukedom of Rothesay which was in the Crown). As the ducal title did not appear in the Peerage of Ireland before 1661, there were no Dukes at all in the British Isles between 2 June 1572 and 5 August 1581, on which last date Sir Esme Stuart, Earl of Lennox, was promoted Duke of Lennox in Scotland. In England the hiatus lasted twenty years longer until 24 March 1602/3, when the accession of King James I brought the Duchy of King Henry VIII, 28 Jan. 1546/7, in favour of Prince Henry, who had been Duke of Rothesay in Scotland since his birth on 19th February 1593/4.

Marquess - It seems that exactly one-hundred Marquesses have been created. The first of these was a life Marquisate, the only life Marquisate, created in 1385 for Robert de Vere who was already 9th Earl of Oxford but a great favourite of King Richard II of England: a friendship described in the Dictionary of National Biography 'as one of disgraceful origin' - a friendship now interpreted by modern historians 'as more fraternal than anything else'. This title was short-lived, however, as it was surrendered within a year and replaced with the Dukedom of Ireland. The second creation was in favour of John Beaufort, Earl of Somerset, who was created Marquess of Dorset; eldest of the legitimated sons of John of Gaunt by Katherine Swynford, the father of Joan Beaufort and father-in-law of James II of Scotland. This Marquisate did not survive as the Marquess was degraded of his honours on succession of Henry IV in 1399. It seems that the dignity of Marquess derived from the Military Office of Keeper of the Frontiers, or the Marches, of a Kingdom - a ''Marckgrave''/ ''Margrave''. In Scotland the dignity was conferred by James III on his second son James who, on his baptism, was created Marquess of Ormond. It was not, however, until 1599 that a subject was created a Marquess in Scotland. With the promotion of the two Earls by James VI; to mark the chiristening of his daughter, Huntly and Hamilton were both created Marquesses on 17th April 1599. It is of interest that Wellington received a Marquisate for Military Exploits in 1812 and Angelsey after the Battle of Waterloo. Several holders of Vice-Regal offices in India were similarly rewarded; the Marquess of Dalhousie in 1849 and the Marquess of Duffrin and Ava in 1888. This rank in the Peerage tended to be given as a promotion to those already in the Peerage. Analysis shows that 90% of creations have been to Peers of two generations standing, and 50% to peers of five or more generations in the Peerage. The only instance of a woman receiving the dignity occurred when Anne Boleyn, in preparation for higher things, became Marchioness of Pembroke in 1532. She became Queen the next year so the title may be said to have been merged in the Crown, and in any event became extinct when she was beheaded in 1536. It is interesting to note that in the Jacobite Peerage (i.e. the Peerage created by James VII after his exile, by the Old Pretender and by his son) there were several creations - the Marquisate of Beaufort with the Dukedom of Fraser to Lord Lovat amongst others.

Earls - Earldoms will be considered below.

Viscounts - is the fourth rank in the Peerage. Anciently this title indicated one who held the chief office under the Earl. The style was applied to the sheriffs or King's principal officers and did not become a dignity until somewhat late. The premier viscount of Scotland is the Viscount of Fenton, created on 16th March 1606, a dignity now held for long by the Earls of Mar and Kellie. The most senior Scottish Viscountcy not merged with a higher title is the Viscountcy of Falkland, created in 1620, and the first holder of that dignity was responsible for the apposite observation ''If change is not necessary, it is necessary not to change". There is another interesting aspect to this creation and that is, that in 1620 at the time of creation, Henry Carey was an Englishman (he had been born in England, a subject of the Crown in right of England). There was clearly some unease about appointing an Englishman to the Scottish dignity, and it was again confirmed to him, along with a Patent of Naturalization, on 18th September 1627 as if he was a native of Scotland. It was later decided that subjects of England and Scotland born after 1603 were held to have been born in the ''liegeance'' of the Sovereigns of both Kingdoms and could be lawful heirs in both countries. A further interesting aspect is that although a Scots peer from 1620, the Viscount of Falkland was a member of the English parliament for Hertfordshire from 1620-22 and this is the earliest date that a Scottish peer is found sitting in, or being elected to, the English House of Commons. Between 1620 and 1707 there were nineteen such cases and at the date of the passing of the Act of Union the Scottish Earl of Dysart, The Viscount of Newhaven and The Lord Fairfax were sitting in the English House of Commons. As a result of the passing of the Acts of Union in the English and Scottish Parliaments, these Peers forfeited their seats in the House of Commons by the operation of these Acts. It is also interesting to note that during Cromwell's Commonwealth, when there was also a Union, five Scottish Peers sat in the Lower House in England for Scottish constituencies - The Marquess of Argyll, The Earls of Linlithgow, Hartfell and Tweeddale and the Lord Cochrane of Dundonald³. It is noticeable that like Earldoms all the Scottish dignities of Viscount have the prefix 'of' and the Scottish Viscount are generally very insistent on this practice being observed (viz: The Viscount of Arbuthnott).

Earl - It is undoubtedly the case that when considering the Peerage of Scotland, the position of the Earls in that peerage is the most important consideration of all and until the 15th century, the Earl was the only rank which would equate with what we now call Peerage. It is essential to understand that the development of the dignity of Earl, and thus the whole Peerage in Scotland, was quite distinct from the manner in which the Peerage developed in England. England was conquered in 1066 and the Peers of that Realm were never ever considered pares or equals of the King of England but merely peers of each other. In Scotland, however, we are told that the territories that gave rise to the institution of the seven Earls of Scotland were originally Kingdoms. The late Professor Croft Dickinson observed ''We must remember that Celtic Earls were Princes if not Kings within their territories. Many of their tenants were certainly as great or important as the tenants of the King.''⁴ In Scotland the full ceremonial title of an Earl proclaimed at State funeral was and is ''The Most Noble and Puisant Prince", and was and is officially addressed by the Crown as 'Our Trusty and Well Beloved Cousin'. At the time of David I in the first half of the 12th century the seven earls were:- Athole, Fife (by Grace of God - dei gratia), Moray, Mar, Strathearn (by Indulgence of God - dei indulgentia), Caithness, Angus. Later in the South the Earldom of Dunbar was included. It is uncertain to what extent the seven Earls of Scotland in the reign of David I when the realm was united, were the descendants of local Kings, and to what extent the local Royal House had been supplanted by the cadets of the High Kingly House. It may be seen that in a sense the King of Scotland as High King, Ard Righ, was primus inter pares. It may well be that the seven Earls of Scotland were Peers of the King as in France, where the Capet Kings were originally primus inter pares among the twelve Peers of France - the Dukes of Burgundy, Normandy, and Acquitaine, the Counts of Flanders, Toulouse and Champagne, the Archbishop-Dukes of Rheims, Langres and Leon, and the Archbishop-Counts of Beauvais, Noyon and Chalon. In the 12th Century the Celtic title of Mormaer, or Great Steward, was gradually replaced by that of Earl or latinized to comes. When this started the epithet applied to the Christian name without territorial designation - Duncanes comes - Duncan Earl - a personal dignity. With the spread of feudalism we find Duncanes comes de Fife - Duncan, Earl of Fife, a territorial dignity. The dignity of Earl was territorial as opposed to personal until the 15th century. The earldom was attached to the lands and followed the lands of the Earldom. During the 15th century the two elements, the lands and the dignity, become separable. In the case of Bothwell, a fairly exceptional case, created in 1488, the Earldom or Comitatus was separated from the dignity within five years of creation. More or less from that time the dignity of Earl has been capable of existing as an incorporeal fief or dignity much as the Mormaership may have been a personal hereditary dignity in the pre-feudal Celtic period.

Lords of Parliament - During the first half of the 15th century the personal dignity of 'Lord of Parliament' developed. Sometimes a name or nomen dignitatis was attached to the dignity, sometimes not. In any event the recipient did not always adhere to the title given. ''Lord Saltoun of Abernethy'' was to be found as ''Lord Abernethy of Saltoun'' and ''Lord Abernethy in Rothiemay''. When this rank was conferred on the Chief of the family, the surname alone was used as the nomen dignitatus or name of the peerage and this practice is observed to this day. Anyone of the surname Cameron cannot be given the title 'Lord Cameron' as this would only be appropriate for the Chief of the Camerons, Cameron of Lochiel, and some variant of Cameron would be required such as 'Cameron of Fairfax'. The Lords of Parliament, or greater Barons (Barones majores) are the equivalent of the Barons in the English, Great British, and United Kingdom, Peerage. The feudal Barons, the holders of land in liberam baroniam were the lesser Barons (Barones minores). The position was succinctly put by Sir George Mackenzie of Rosehaugh, Lord Advocate to Charles II: ''Barons with them'' (i.e. the English) ''are Lords with us'' (i.e. the Scots).

Barons - With the introduction of the feudal system in the 12th century, pre-feudal, or Celtic tenures, were transformed into holding from the Crown and a number of these were held directly or in chief of the Crown and were held in liberam baroniam, in free barony, with high justice (i.e. with pit and gallows). These Baronies belonged to the same order as Earls and these Earls and Barons together formed the Order of the Three Estaits of the Scots Parliament known as The Baronage of Scotland. The Barons sat in the Scots Parliament until 1587 when they were relieved from attendance, which was burdensome and costly. The right of pit and gallows was removed in 1747 by the Heritable Jurisdictions Act, lesser powers continued to the twentieth century.

Heirs and Destinations

It is appropriate that we consider firstly three kinds of heirs that frequently give rise to confusions- Heir Apparent, Heir Presumptive, and Appearand Heir.

The Heir Apparent - to a Peerage (and indeed to heritage or land and buildings prior to 1964) was the eldest son or, if he had predeceased the Peer, his eldest son. This was the person who in the normal course of events would succeed his father or in certain circumstances his mother on the death of the father, or mother (when Peerage held by mother). It was not, however, a vested right but a spes or hope.

Heir Presumptive - The word 'presumptive' really means that this heir may be defeated by the appearance of a nearer heir. Where the destination is to heirs male, a brother of the male holder of the Peerage without a son maybe termed the ''heir presumptive'' and he, of course, may be defeated by the birth of a son to the Peer. Where a Peerage may descend through females a daughter may be the heir or heiress presumptive but would cease to be the heir presumptive if a brother, although younger, is born as he would become the heir apparent - because in any generation males are preferred to females. In due course this may change rather as has happened in relation to the Crown of Sweden where children succeed in the order in which they were born irrespective of sex. The heir presumptive to a Scottish Peerage may bear the title of 'The Master' a title which may jump about, and which he may have to give up to the ''Heir Apparent'' when no longer the heir to the peerage. In one case, in relation to the Lordship of Glamis, for two periods Sir Thomas Lyon, brother of the 8th Lord Glamis, was designated 'Master of Glamis'. He first gave up the title on the birth of his nephew, later 9th Lord Glamis in 1575, but on the death of his elder brother, the 8th Lord of Glamis, in 1578 he was again 'Master of Glamis' and heir presumptive until his nephew produced his grand-nephew in 1606, (later 10th Lord Glamis), when he again ceased to be 'Master of Glamis' and heir presumptive. If the heir apparent is female she may be described as The Mistress of X'. Understandably perhaps there is sometimes a certain reluctance or reticence about adopting this style!

Appearand Heir - has nothing to do with the ''Heir Apparent". The Appearand Heir is an heir whose progress of feudal title to the fief has not been made up by completing the feudal formalities. Land could be held for a number of generations ''on apparency'' (i.e. without the feudal formalities having been completed) though this was not a desirable course to follow. The technical description of a Peer mentioned under the ruling destination is 'Appearand Lord X'. In relation to Armorial Bearings an Appearand Heir is one who has not made up progress of title to the Armorial Bearings by recording the title to the Arms (i.e. confirmation or Matriculation) in The Public Register of All Arms and Bearings in Scotland, a procedure regarded as analogous to completing investment by recording appropriate deed in Register of Sasines.

Destination to Peerages

From the 14th century onwards when Peerages were created by Charter or Letters Patent the destination could usually be ascertained. The following forms of Destination may be considered-

Heirs - This is a wide destination which would allow on failure of male or female descendants, brothers, sisters, uncles and aunts and their descendants, male or female, to come into the picture.

Heirs of the body - the senior descendant, male of female, of the grantee.

Heirs Male of the body - the senior male descendant of the grantee.

Heirs Male - this would allow on the failure of the male descendants of the grantee for brothers and uncles and remoter male relatives and their male descendants to come into the picture.

A destination could be given that would preclude the merger of the Peerage with an existing Peerage. These were known as ''jumping'' destinations and an example would be the Earldom of Selkirk which would not normally merge with the Dukedom of Hamilton but would go to a younger brother of the Duke or if it did merge in single male heir and subsequently such Duke of Hamilton had two sons the Earldom of Selkirk would come out in the second son. This can give rise to very great difficulties. Some even have a strict non-conjunction clause as in the Earldom of Rothes/Eglinton Charter of 1633 or the Earldoms of Rothes/Haddington Charters of 1688 and 1702. A power could be given to the Grantee of a Peerage to execute an entail or special destination determining how the Peerage granted was to descend. This was a wide power. It has to be kept in mind that these family arrangements in Scottish Peerages and Scottish landed estates were sensible as they allowed for arrangements to be made that were in the best interests of the continuity of the Peerage or Armorial family. In this context it should be kept in mind that prior to the Union Settlement of 1707 it was always open to the holder of a Scottish Peerage to resign that Peerage into the hands of The Sovereign for regrant to a new series of heirs. This course might be followed where it was likely that a Peerage would otherwise become extinct, or where it was likely to become merged or lost in another group of peerages. It is interesting to note that in a memorandum by the Lord Advocate which appeared at Appendix (12) of a Report of a Joint Committee on House of Lords Reform in 1962 the then Lord Advocate observed ''On the whole matter I am of the opinion that the pre-union procedure has never been abrogated and is still legally competent''. Needless to say the Committee promptly recommended that legislation be introduced to prevent the Crown doing anything of the kind! That recommendation has not been followed.

Succession to Peerages

Where the destination is known there is really little difficulty apart from interpreting the destination. The greatest difficulty in relation to the whole law of peerages has probably been ''what Law of Succession should be presumed where the destination is not known''. For many Peerages while it is known the Peerage was created the Patent or Charter could not be found and the destination could not be known, and in such circumstances the destination has had to be presumed. There is no doubt that Earldoms were feudalised under David I and his successors and therefore Earldoms and the later Peerage creations must be looked upon as feudal heritage from the point of view of Scots law. The matter was raised in the mid-18th century. In the Earldom of Cassillis case of 1762 Lord Chief Justice Mansfield observed:- ''The feudal system brought with it Earldoms and other territorial dignities . . . They most certainly descended to the issue-male . . . They were certainly masculine fiefs . . .''. It was therefore presumed that the Land descended to the heirs male and on the basis of this assumption Lord Mansfield was of the opinion that there aught to be a presumption in favour of the right of heir male to succeed to peerages of which the destination was not otherwise recorded. The Earl of Mansfield was a Scot by birth, being younger son of the 5th Viscount of Stormont and brother of the titular Earl of Dunbar, the Jacobite Secretary of State in exile. He was called to the English Bar. He was an able barrister, and became Lord Chief Justice of England but had no fundamental understanding of Scottish legal history. It was perhaps unfortunate that and Institutional Writer on the law of Scotland (a writer of special authority), Sir Thomas Craig of Riccarton (1538-1608) in Jus Feudale observed ''All proper feus are of the masculine class, because in the typical feu women are excluded, males alone being admittedly. Sir Thomas Craig received his training at the University of Paris but, having been educated by Cujacius (described by Lord Marchmont as the greatest civilian, or Roman, lawyer that ever existed) his opinions were all derived from the feudal law of Lombardy which favoured the heir male, unlike the feudal law of Normandy. The Salic law (Law of Salian Franks) and the law of the Germanic tribes also favoured the heir male. Scottish feudal law was based on the Norman feudal law which did not favour the heir male. Scholarship and research have established that Lord Mansfield's doctrine of the original heir male in Scottish Peerages and other heritage was a pseudo-historical doctrines. It was in effect abandoned in 1967 in the Ruthven of Freeland peerage case (1977 Scots Law Times, Lyon Court, p.2). The Court in that case was helped very considerably by the researches of the late Sir lain Moncrieffe of that Ilk and by his devastating analysis of Scottish Peerage destination which may be summed as follows:-

Succession to Armorial Bearings

A 'noble' in nobiliary law as it is understood in Scotland and on the continent is not at all the same thing as a peer, or even as the bearer of a 'title', despite the common usage in English of the word 'noble' in these senses. From the point of view of nobiliary law, a noble and a gentleman are the same thing and they are to be identified by their possession of hereditary armorial insignia. The Law of Succession to Arms in Scotland may be summarised as follows - in cases of intestacy or where there is no Will defining the succession, the Arms pass to the nearest heir-at-law bearing or assuming the surname associated with those Arms but where there is a settlement by tailzie (entail) or otherwise of the Arms or of the principal inheritance (whether an estate in land or peerage dignity) of the surname associated with those Arms then the Arms will follow the destination or accompany the principal inheritance provided the appropriate surname is taken. This is sometimes known as the principle of ''Attraction'' whereby the Arms are attracted to the principal land or dignity. It is as a result of this particular system, which combines continuity with reality that English students of Scottish genealogy are so often puzzled to find Chiefs of Highland and Lowland families, bearing the undifferenced Arms, who are neither heirs General nor heirs male of the founder.

['Aptlie a prince is said to nobilitat one quhen, ather by expresse wordes or by wreat, or other wayes by some externall acte or ceremoney, he manifests his princely magnificence and creatione, aither by giuing of Armes or Signe Armorialls to be borne by the party so honoured in Escutcheons, ore by careing Helmetts with open Beuer, muche ussed by the Germans. Gutier, lib. 3. et 4. quest. 17. num 151. Petrus Gregorius, lib. 6. de Repub. cap. 16. num. 2.' - 'Ancient Heraldic Tracts' by Sir James Balfour, Lord Lyon King of Arms, published by Thomas Stevenson, Edinburgh, 1837, page 9, quoting a manuscript held by the Faculty of Advocates, which manuscript cites other, more ancient, authorities.]

Succession (Scotland) Act 1964

With regard to the Law of succession in Scotland the watershed occurred with the passing of the Succession (Scotland) Act 1964. That Act does not apply to Peerages nor to Armorial Bearings. The law of Succession so far as it affected land was utterly changed and after 10th September 1964 the process of Service of Heirs to all intents and purposes came to an end. Land on intestacy (where no will) no longer descended to 'heirs' but after certain prior legal rights had been satisfied was to fall in with the moveable estate so that all distinction between heritage (i.e. land) and moveable property (i.e. jewellery, furniture, money) disappeared. They were to be lumped together and divided in accordance with terms of the Act. It may be of interest to reflect that as the 1964 Act did so much to dismantle feudalism in so far as it related to land, relatively modern legislation in Scotland has in a sense been introducing a new feudalism. The Agricultural Holding (Scotland) Act 1948, in a sense, converted most tenanted farms into feus because tenancies under the Act may be succeeded to ad infinitum by the heirs (the single heir) of the tenant.

It might be thought that these matters of succession are somewhat remote from the realities of present day life. The survival of reasonably large units of land in well run estates, taking a long term view, may well be relevant to present day concerns regarding the environment. In an article in 'The Times' of 9th February 1995, Magnus Linklater asked a naturalist what he thought was the ideal solution for preserving the balance of nature in hill country and received the answer ''The traditional land-owner, with a bit of money and an interest in grouse-shooting and deer-stalking, is still the best, possibly the only, reliable conservationist in hill country - but don't, for goodness sake, quote me on that".

References

1. Robert Horley ''A Rare Honour: British Marquessates Through Six Centuries, ''Debrett's Peerage and Baronetage'' 1995 p. 25.

2. ibid. p. 28.

3. G.E.C, ''The Complete Peerage'' Vol. V p. 239.

4. Professor W. Croft Dickinson ''Court Book of the Barony of Carnwath'' - Scottish History Society, 3rd Series, p. XVI.

5. Sir lain Moncrieffe of that Ilk:- ''Origins and Background of the law of Succession of Arms and Dignities in Scotland (1958)" - Doctoral Thesis - Edinburgh University Library.