Page:The Complete Peerage Ed 1 Vol 2.djvu/177

 176 CASSILLIS. VI II. 1701 cS John (KENSTBnT), Eakl op CAasitus, &c. [S.l grand- to sun mill h., being only a. nnd h. of John Kennedy, ttyled Lord Kennedy, 17o[). bv Elizabeth, his wife, above named He was 0. April 1700. la 1747 he was (dlowed£1800 (in full of Iris claim for CI :J, 100) for the Regality nf Carrick, under the Act abolishing heritable jurisdictions. He was Gov. of Dumburtou Castle. He in. 26 Oct. 173S his lirst cousin, Susan, J'st. da. of (his stepfather) Joan (Hamilton). Eakl of Sf.lkiuk and ok IlroLKN [S.] above named, by (his father's sister of the whole blood). Anne. da. of John (Ivf.nnf.dv), 7th lvuiL of Cassillis [S.], the lirst wife of the said Earl of Selkirk. 1 laving executed (unknown to his wife) a strict entail of the estate of Cassillis, on 2l» March 1759, in favour of his distant cousins and heirs male, he </., s.p., in Arlington Street, Midx., 7 Aug, 175'.), and was bur. next day at St. .lames', Westm, but, in June 17C0, was removed to Maybulc. His widow il. at Harutou 8 Feb. 1 76:1, and was bin: in the Abbey of Holyrood House, [From 1759 to 1702 these honours were in dispute between the heir male and the heir general. The latter, William (PovulasV Eaul of Ucolkx and of MARCH SX (who, in 177S. became Duke of Queeusberry), was s. and h. of William (Douglas!, Haul of March [S.], by Anne, sua jure. CoUXTEsS OF liroLKN [S.], 1st da. and h. of line of John (Hamilton). Eaul of Selkirk and of Rr.a.KN [S.], by his first wife. Anne, the only da. that had issue of John (Kknnkoy), 7th Eaul of Cassillis [S.] above named. He claimed the estates under an entail of 5 Sep. 109S, which be contended could not be set aside by the entail of 1759. The entail of 1759 was however upheld, though by a narrow majority, in the Court of Session, and continued, on appeal, by the House of Lords. He then, under the designation of " William, Earl of Cassillis. Kuglen and March," claimed " the titles and honours of E.irl of Cassillis and Lord Kennedy," on the ground of certain charters of 29 Sep. 1042, and 24 April 1841.(») Sir Thomas Kennedy, Hart, [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. 1702, that the latter hail a right " to the honour and dignity of Karl of Cassillis as heir male of the body of David, the 1st Earl of Cassillis, and [to that] of Lord KennedyC') as heir male of the body of Gilbert, the 1st Lord Kennedy." IX. [i/J-9]. 0. Thomas (Kennedy), Earl of Cassillis [S.], cousin ,_p 0 and h> male, beuig 2 surv. s. (out of 12 sons) of Sir John K. 1 (0_i. B iir t. [S.]. by Jean Douolas of Mains, co. Dumbarton, which Sir John was s. and h. of Sir Archibald Kennedy, Bart. [.S.] (so or; 10S2). who wa< s. and h. of John K. of Colzcan, co. Ayr, s. and h. of Sir Alexander K. of the same, s. of Sir Thomas K. also of the same, who was 2d s. of Gilbert, 3d Earl of Cassillis [S.] abovenamed. He was an officer in the army and served in Flanders, and on the death s.p. 10 April 174 1 of his 1st br. Sir John Kennedy, Bart. [S,], sue to the Baronetcy ami to the family estate of Colzcan ; ami in 1759 to the right to the Cassillis estates and title. By the decision of 27 Jan. 1702 above mentioned, he was recognised as Eakl of Cassillis and Lord Kennf.dy [S.] Rkf. Peer [S.] 1774. He d. unm. at Colzean, 30 Nov. 1775. Will pr. 1776. ( a ) That these two charters were " inept as to the honours" is shewn in " Iliddell," p. 558, wdio 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] CassiUs case should have justly given the Peerage to the heirs female," p. 5ti7, (4. Iliddell' s style, however, is somewhat obsure and involved, and may be construed (p. 580, &c. ib.) as expressing (1.) a doubt, whether the charter of 0 Feb. 1540/1 (proceeding on resignation), should Dot operate either as a reennrctfanre of the honours to heirs male, or as a reversal of the ordinary presumption in favour of heirs i/encral ; and (2.) a suggestion that the original charter constituting the Earldom (how, 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. ( b ) "The Old dignity of Lord Kennedy [1450] was allowed to the heir malt upon Lord Mansfield's untenable ratio in 1702. 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, how- ever feudal the form of creation may have been ; so that this Peerage, different so far from Lovat, may be 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 1033, in the case of Oliphant, the precedents of Saltou and Athol, &c, &c." See " Iliddell," p. 577.