The Estate and Dignity descended in the Male Line. The Claimant, Heir Male of the Family, 23th Jan. 1760. The said Estate and Barony, and the Title and Dignity of Earl of Cassillis, descended in the Male Line from the said Gilbert, the third Earl, to John, the eighth Earl of Cassillis, who died the 8th of August, 1759, without Issue, as appears from the Table of Pedigree hereto annexed. Upon the Death of the said John, late Earl of Cassillis, the Claimant, Sir Thomas Kennedy, agreeable to the Laws served nearest of Scotland, was duly served and cognosced, upon the most authentic and indisputable Evidence of Charters, Retours of Services, and Infeoffments, by a sworn Jury of Noblemen and Gentlemen, to be the nearest and lawful Heir Male of the said John, late Earl of Cassillis, lineally descended from Sir Thomas Kennedy of Culzean, the second Son of Gilbert, the third Earl of Cassillis, who was Grandson of David, first created Earl of Cassillis in 1509, as before-mentioned. The Genealogy and Connection of this Branch of the Family is likewise contained in the Table hereto annexed, wherein the Proofs are referred to. Prefers a Petition to his Ma The Claimant, Sir Thomas Kennedy, lately presented a jesty for estab. Petition to His Majesty, praying, That the Title and Dignity of Earl of Cassillis might be declared to belong to him and his Heirs Male; and His Majesty has been graciously pleased to refer this Petition to the Consideration of the House of Lords. lishing his Right. Reasons for Claimant's Right to the Title of Hono ir Earl of Cassillis. The Claimant most humbly hopes the foresaid Title and Dignity will be found of Right to belong to him, for the following, among other REASONS. I. Feus of Lands anciently, before Charters or Grants in declaring the Writing were introduced, were conferred by Investiture, in Presence of the Pares Curiæ.-And in the same Manner, and Dignity of until the Reign of James VI. of Scotland, when Patents appear to have been first introduced, the Dignity of Earl was conferred by the Sovereign himself in Parliament, by Cincture or Girding the Person ennobled with a Sword, and by Proclamation made by Heralds.-In Feus of Lands, military Service and Fidelity were due by the Vassals to the OverLord or Superior; so in Dignities the Person ennobled was bound to perform Service in Parliament, Fidelity, and Homage. -Feus of Lands, before the Descent was limited by Grants in Writing, uniformly descended to Heirs Male, and could not be aliened without the Consent of the Superior; so Dignities conferred by Investiture in Parliament descended to the Heirs Male of the Body of the Person first ennobled, and could not be aliened or transferred in any other manner than by Resignation thereof in the Hands of the Sovereign. II. As the original Constitution of Feus and Dignities was derived from the Feudal Law, every Question, with respect to Dignities, conferred without Patent, must be governed by the Rules of that Law, which has hitherto, and must always be resorted to as the common Law of Scotland, where the statutory Law, or a Course of Decisions of the Sovereign Court, has established no certain Rule of Judgment; and, therefore, in the present Case, the Right to the Title and Dignity of the Earl of Cassillis, conferred on the Claimant's Ancestor in 1509, can only be judged of by the Feudal Law of Scotland, which has ever regulated the Descent of all Dignities, originally conferred by Cincture or Investiture, before any special Grants or Patents were in Use. S2 and 16. 10, 6.-Lib. III. By the Feudal Law, the Succession of Lands, in all Sir Tho. Craig. Cases, devolved on Males only, to the entire Exclusion of Lib. 1, Dieg. 8, Females. This Law was early received in Scotland; and Lib. 1, Dieg. long after the Norman Conquest, when the Succession of 2, Dieg. 14, § 3. Females was introduced into the Law of England, it continued in its original Purity in Scotland, and the exclusive Privilege of the Male Succession wore out more slowly and gradually. At first, Females were entitled to succeed by Paction or express Provision, and were understood to succeed only upon the Failure of Males.-Afterwards, when the Settlements of Estates were made in favour of Heirs whatsomever, Female Heirs were understood to be comprehended under that general Description; but this can have no Influence on the Succession of Dignities conferred by Cincture in Parliament, which was originally regulated by the Feudal Law; and the Descent once established in the Male Line will not be presumed to be altered, unless such Alteration appears by the clearest Evidence.-The Continuance of the Descent in the Male Line is proved by the History of the several noble Families in Scotland, who have possessed these dignities.—In every Case where the Male Line separated from the Female, the Heir Male was always preferred both in ancient and later Times, which is the strongest Proof that can be had, that the Consuetudinary Law of Scotland has, in this Particular, never varied from the Feudal Law, to which it owed its Origin. IV. It appears that the numerous Resignations of Titles of Honour made in the Hands of the Sovereign, for the Purpose of obtaining new Grants, agreeable to the Law and Usage of Scotland before the Union of the Kingdoms, were all uniformly in favour of Heirs Female, and none of them in Favour of Heirs Male; which puts it beyond a Doubt that Heirs Male had ever the legal Right of Succession, and that this Right could only be altered or defeated by a Resignation of the Dignity, and a new Grant thereof by the Sovereign limiting the Descent to Heirs Female. V. The ancient Settlements of the Estate of Cassillis, in the present Case, in Favour of Heirs Male only, affords a most convincing Proof, that the Title of Honour and Dignity was by Law understood to descend in the same Channel, as it is not possible to believe that the Persons who enjoyed this Rank and Dignity would for Ages have anxiously conveyed their Estates to Heirs Male, if they had understood that the Dignity could have descended to Heirs Female. VI. As the Descent of Peerages (originally conferred without Patents) to the nearest Heir Male of the Person first ennobled, has uniformly taken Place in a great Number of the noble Families of Scotland; so this Rule of Descent was never called in Question until the Year 1729, in a Dispute before the Court of Session, between Simon the late Lord Lovat, the undoubted Heir Male of the Person first ennobled in the Year 1540, and Hugh Fraser, Esq., the nearest Heir of Line, descended of a Daughter of Hugh Lord Lovat, who died in 1697.-On Occasion of this Dispute, many Instances of the Descent of Peerages (without Patents) in the Male Line, to the Exclusion of the nearer Heirs Female, were exhibited and proved to the Satisfaction of the Court of Session. And though some instances were likewise brought, tending to show that such Dignities had sometimes been assumed by the nearest Heir Female, yet the Court, being of Opinion that all Dignities thus conferred before Patents were introduced descended by Law to the nearest Heir Male of the Person first ennobled, they found the Title and Honours of 3d July 1730. Lord Fraser of Lovat descended to Heirs Male, and of Right belonged to the said Simon late Lord Lovat, as Heir Male of the Family of Lord Fraser of Lovat.-This Judgment was acquiesced in, and has stood unimpeached for thirty Years; and the said Simon late Lord Lovat having as a Peer of Scotland been impeached, brought to a Trial, and convicted of High Treason for his Accession to the Rebellion 1745, the Law in this Particular must now be considered as established, and cannot be called in Question. It may be objected, That by the Law and Usage of Eng- objection I. land, Dignities as well as Lands, unless limited by special Grant, always descend to the right Heirs, or Heirs of Line, and consequently to Heirs Female; and that this Rule ought to take Place in the present Case. To this it is answered, That the Feudal Law was only introduced into England at the Norman Conquest; and at the same Time the Female Succession was established agreeable to the Norman Custom.-But it appears from the Laws of Malcolm the IId, who reigned in 1004, and from the most undoubted Authorities, that the Feudal Law, by which the Female Succession was excluded, took Place much earlier, and continued much longer in its original Purity in Scotland, where it has ever been considered as the proper Law of that Country in Matters of Succession, unless where it has been clearly altered by Custom, which will not be maintained in the present Case. Answer. Leges Malco lumbi 2di, cap. i. Reg. Majestat. Sir Tho. Craig, Lib. i. Dieg. 8, 2 and 16. Hoc enim cer tissimum est, nos purius hoc jus habere quam vicinos. Hoc jus proprium hujus Regni dici potest, cum ex ejus scaturigine et fontibus omne jus, quo hodie utimur in foro, omnisque usus et praxis defluxerit ; et si quid dubii oriatur, origines semper repetendæ sunt, ut inde quod æquum est dignoscatur. It may be further objected, That there occurred one Instance of the contested Right to the Title and Dignity of Lord Oliphant in 1633, where the Court of Session found, That where the Person last deceased had no Male Children, and where there was no Writ extant to exclude the Female, Use was sufficient, conform to the Laws of Scotland, to transmit such Title to the Heir Female. Objection II. sions, 11th July 1633. Durie's Deci Oliphant against Oliphant. Answer. William Eari of March pre to his Majesty, claiming the foresaid Title fers a Petition of Honour and Dignity. 1st Proposition on which the Claim of William Earl of March is founded. But this extraordinary Case, said to have been determined in Presence of King Charles the Ist, being very indistinctly reported, without any Mention of the original Constitution of the Peerage, or any Traces of such Dispute appearing from the Records, can have no Influence in the present Case.-The Question appears to have been only with Respect to a Resignation of the Title and Dignity made by Lord Oliphant, in Favour of Patrick Oliphant, his Heir Male, which was never accepted of by the King.-The Court of Session, on this Occasion, as the Report sets forth, FOUND, That Usage was sufficient to transmit the Title to the Heir Female; but no Reason is given for this Determination, nor was this any Part of the Question: And the Report adds, with respect to the real Question before the Court, That the Lords FOUND, "That the Heir Female, the Daughter of the last Lord Oliphant, was excluded as not having Right to this Dignity, seeing the King had not conferred the same upon her, and her Father had renounced his Right thereto, which, though not sufficient to establish the Right in Favour of the Donee, yet was sufficient to denude the Resigner and his Descendants, until the King should declare his Pleasure; and they found that none of the Parties could claim the said Honour, but that it remained with the King." William Earl of March and Ruglen likewise presented a Petition to his Majesty, (which has been referred to the House of Lords,) claiming the foresaid Title and Dignity of Earl of Cassillis, as nearest Heir General, or of Line, of David, the first Earl of Cassillis, being the Great-Grandson of John, the seventh Earl of Cassillis, by Anne, Countess of March, the Daughter of Anne, Countess of Ruglen, who was the eldest Daughter of the said John Earl of Cassillis. I. The said William Earl of March insists, that where no Patent exists, the Descent of the Title of Honour is regulated by that of the Family Estate, as it stood devised by the Investitures at the Time the Dignity was conferred; and that, when the Title of Honour and Dignity was first conferred on the Family of Cassillis in 1509, the Estate was settled in Favour of Heirs General, or Heirs of Line, as appeared by the following Writings. |