Page:The Complete Peerage Ed 2 Vol 3.djvu/99

CASSILLIS 79 certain charters of 24 Apr. 1641 and 29 Sep. i642.(*) Sir Thomas Ken- nedy, Bart. [S.], claimed the said titles as heir male, and the two petitions having been laid before the House of Lords, it was adjudged, 27 Jan. 1762 that the latter had a right "to the honour and dignity of Earl of Cassillis as heir male of the body of David, the ist Earl of Cassillis, and [to that] of Lord Kennedy C") as heir male of the body of Gilbert, the ist Lord Ken- nedy."] IX. [1759]. 9. Thomas (Kennedy), Earl OF Cassillis [S.], cousin and h. male, being 2nd surv. s. (out of 12 sons) of Sir 1762. John K., Bart. [S.], by Jean, da. of Capt. Andrew Douglas, of Mains, co. Dunbarton, which Sir John was s. and h. of Sir Archibald Kennedy, Bart. [S.] (so cr. 1682), who was s. and h. of John K. of Culzean, co. Ayr, s. and h. of Sir Alex- ander K. of the same, s. of Sir Thomas K. also of the same, who was 2nd s. of Gilbert, 3rd Earl of Cassillis [S.] abovenamed. He was an officer in the Army and served in Flanders, and on the death i./)., 10 Apr. 1744, of his 1st br., Sir John Kennedy, Bart. [S.], sue. to the Baronetcy and to the family estate of Culzean ; and in 1759 to the right to the Cassillis estates and title. By the decision of 27 Jan. 1762 above mentioned, he was re- cognised as Earl of Cassillis and Lord Kennedy [S.]. Rep. Peer [S.] 1774 till his death. He d. unm. at Culzean, 30 Nov. 1775. Will pr. Mar. 1776. X. 1775. 10. David (Kennedy), Earl of Cassillis, i^c. [S.], only surv. br. and h. In 1 752 he was admitted a Member (*) That these two charters were "inept as to the honours' is shown in Riddell, p. 558, who seems, however, to consider the original grant to have been one to heirs general, and states that even the very '■'■ratio adopted by Lord Mansfield in [this] Cassillis case should have justly given the Peerage to the heirs female." {jh. p. 567). Riddell's style, however, is somewhat obscure and involved, and may be construed {ih. p. 560, i^c.) as expressing (i) a doubt, whether the charter of 6 Feb. 1540/1 (proceeding on resignation), should not operate either as a reconveyance of the honours to heirs male, or as a reversal of the ordinary presumption in favour of '€x'i general and (2) a suggestion that the original charter constituting the Earldom [now, but, perhaps, not then lost), was in favour of heirs male, and so that, though Lord Mans- field's reasons were all wrong, the result arrived at may have been right. C') "The old dignity of Lord Kennedy [1450] was allowed to the heir wa^ upon Lord Mansfield's untenable ratio in 1762. It is not in the most remote manner carried by any of the deeds referred to, nor did it take its name from, or give it to a fief, however feudal the form of creation may have been ; so that this Peerage, dif- ferent so far from Lovat, may he the more argued to be affected by the principles of our [S.] common law, in favour of heirs general (having never passed the latter), as directly warranted by the decision of the Session in 1633, in the case of Oliphant, the precedents of Salton and Athol, isc" {Riddell, p. 577).