Reports of claims preferred to the House of Lords in the cases of the Cassillis, Sutherland, Spynie, and Glencairn peerages

36
charters, I saw it never meant to pass, nor could pass, the peerage,
being only a private charter of lands, without a royal signature
or words applicable to a dignity. Lord Hardwick, therefore, was
of opinion, that the charter 1671 could not carry the peerage.
I was of the same opinion, and after this explanation, if I remem-
ber right, the noble Lord, who first thought otherwise, at last con-
curred in opinion with us. I settled with Lord Hardwick the
penning of the judgment, and we settled it with a view, that it
might be a rule, so as to exclude all future questions. It was de-
clared that Sir Thomas Kennedy had a right to the dignity of
Earl of Cassillis, as heir-male descended of the body of David
the first Earl of Cassillis ; and also to the dignity of Lord Ken-
ned\ r , as heir-male descended of the body of Gilbert the first
Lord Kennedy. If the peerage had been adjudged to Sir Tho-
mas Kennedy, because he was heir under the original investitures
of the estate, some of your Lordships were too well acquainted
with my Lord Hardwick's accuracy to suppose, that this ground
would not have been stated in the judgment.
In the case of Borthivick, the Crown furnished the claimant
with money to make good his title, and he had nobody to oppose
him. I only stated the chasms in his pedigree, which put it off
for a session. The next year he supplied his proofs. Judgment
went of course for him the heir-male, in consequence of the for-
mer judgment in the case of Cassillis; and no regard whatever
was had to investitures.
All the laws of peerage are since Queen Elizabeth ; many since
the Revolution ; and some in my own time. I am very glad to
find, that upon the nice discussion in this case, the judgment of
Cassillis seems to stand on solid ground ; and to have received ad-
ditional strength from the thorough investigation which has been
here made into the limitation and descent of ancient peerages ; in-
somuch, that I am now infinitely more convinced of the propriety
and justice of that judgment.
It now comes out, that this Peerage of Sutherland is the only
one subsisting at this day, which was created prior to 1274. That
nine-tenths of those since are limited to heirs-male. Twenty out
of twenty -five limitations unknown are admitted to have gone to
heirs-male. What comes out by going farther back does not sa-
tisfy me, that these more ancient dignities did not go to heirs-