Category Archives: legal

He Refused an Earldom

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English titles and privileges are granted by the Crown, ‘the fount of honor.’ One can get a peerage for a variety of reasons. The ones bestowed by mere accident of birth make the whole system peculiar. Society ordered by Fate.

What could happen?

Monty Python governmentFor instance, a duke’s eldest male child emerges from the womb a marquess even before he’s been given his Christian name. Her Majesty’s Earl Marshal, one of the Great Officers of State, is still in his cradle, having been born posthumously to the previous holder of this hereditary office. A housekeeper in Miami discovers she’s also a baroness, the heir general to a title bestowed by writ of summons centuries before.

One’s gender can extinguish a fifteenth century viscountcy.

Not everyone believes themselves fortunate when Fate puts a coronet on their head. Some refuse what they were legally born to be. Early precedent in peerage law was somewhat muddled on the question of whether a title could be disclaimed or surrendered to the Crown.* In the fourteenth century, the powerful nobleman Roger Bigod surrendered his dignity and title, the Earldom of Norfolk, to his sovereign, Edward I.

By the seventeenth century, consensus had gone the other way:

That no peer of this realm can drown or extinguish his honor..neither by surrender, grant, fine nor any other conveyance to the King.

— Grey de Ruthyn Case, 1640

Frederick Augustus Berkeley, 5th Earl of Berkeley (1745 – 1810) was a confirmed bachelor, bosom bow of the Prince Regent and famous for dispatching highwaymen–the latter an accomplishment he was not fond of being reminded of:

“Lord C(hesterfield)., meaning to annoy (Berkeley), asked him ‘when had he last killed a highwayman?’ ‘It was, my lord, as well as I can recollect, just at the time when you hung your tutor.’ ” **

— The Journal of Elizabeth Lady Holland (1909)

But when a chronicler asked Lady Caroline Maxse (1803-1886) about her father’s deadly reputation, she declared, ‘I’m proud to say that I am that man’s daughter.’ Collections and Recollections, by George Russell (1903)

At the age of forty-one, Lord Berkeley celebrated the birth of his first acknowledged son William FitzHardinge Berkeley (1786–1857). The mother, his lordship’s mistress/wife, depending on who you asked, was Mary Cole, aka Mary Tudor, (ca 1767 – 1844) the daughter of a tradesman/innkeeper/butcher. They went on to have a number of children before the earl decided to “regularize” his relationship to Mary when he married her in 1795, well after William’s birth.

Although William was known as Viscount Dursley, the courtesy title held by the heir to the Berkeley earldom, his legitimacy remained in doubt. To prove up his future claim to the earldom, his father sought a ruling on the matter. He didn’t want to leave the thing up to chance, for he would be dead and unable to do anything about it if the House of Lords barred William’s entry.

In this he was encouraged by his friend, the Prince Regent, with a vague promise William would be an earl of something if not of Berkeley. So his lordship scraped together evidence (some say contrived) that his marriage to the countess legally began in 1785, whilst she was pregnant with William, ten years prior to the well-documented wedding ceremony of 1796.

Mary Cole Berkeley

The romance between the earl and the butcher’s daughter inspired the creator of Downton Abbey, Julian Fellowes, to write his New York Times best-selling novel Belgravia, now a television drama.

In the spirit of cautious jurisprudence, the Committee declined to render a decision, as the matter had not yet ripened. In other words, the earl was not dead yet.

When the inevitable did occur, William’s claim to the earldom of Berkeley was disallowed, confirming his father’s worst fears. Mary Cole and William desperately introduced more evidence to prove his legitimacy, but inconsistencies in the countess’ testimony raised serious doubts as to what actually took place in 1785. Neither banns had been read nor was a license obtained that year. Moreover, although William’s mother ran the earl’s household as if she was the countess, she never called herself that nor insisted others do so.

Even more telling, the earl and Mary Cole signed the register at their 1796 wedding as bachelor and spinster, respectively.

The Berkeley Peerage case was a sordid and embarrassing business as far as the ton was concerned. The Prince Regent distanced himself from the whole, declining to console William with a new earldom.

He offered the gift of a barony instead–hardly what William had in mind.

Poldark in Berkeley Castle.jpeg

William did inherit the unentailed Berkeley Castle in Gloucestershire. Scene of the graphic murder of Edward II, this fortress home remains in the Berkeley family, the third-oldest continuously occupied castle in England. The castle was the stand-in for the french ‘guillotine-happy port town’ setting in Poldark. Photo via https://www.berkeley-castle.com/filming-location

To everyone outside his family, the 6th Earl of Berkeley was Thomas Moreton FitzHardinge Berkeley (1796-1882), the first son born after the proven wedding of his father and Mary Cole. Through no fault of his own, he’d dispossessed his older brother of a title long promised to him by their parents. His legitimate status became a humiliating symbol of William’s illegitimacy and their mother’s tarnished past.

Moreton, as he was known, refused the earldom, but this action had little effect on his legal status nor did it soothe his older brother’s ire. His life, chronicled by beloved younger brother and heir, George Charles Grantley FitzHardinge Berkeley (1800 – 1881), is a Regency-era tale of sibling rivalry, the story of William’s lasting jealousy and hatred toward his younger, legitimate brothers and the subject of upcoming posts to this blog:

“I (Grantley) have not the slightest doubt that this advantage in Moreton and myself was one of the exciting causes of (William’s) ill will towards us, and he hated us the more for his failure in establishing his own birth.” — My Life and Recollections, Vol I, by Grantley Berkeley (1865)

Cranford Park House old stables

The old stables are all that remain of Cranford House in Middlesex, hunting lodge of the Earls of Berkeley and the dower house where Mary Cole lived as a widow. As a consequence of the sketchy testimony she gave on the validity of her marriage, the countess constructed a tunnel there as a means of escape if the authorities decided to prosecute her for perjury.

*Today, one can disclaim a newly-inherited title under the Peerage Act of 1963.

**Lord Chesterfield’s tutor was convicted of forging his lordship’s signature on a bond worth several thousand pounds. He paid the ultimate penalty of the law despite his employer’s vain attempts to save him from execution.

Regency – Era Entail, Part Two

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Part two of this post series on the entail describes how the device was used to preserve a family’s physical assets–land and monies. Ordinarily, an individual would have the power to divide, mortgage, sell or even blow his or her inheritance. A safeguard against spendthrifts, the entail held a property in trust for future generations of the family.

The entail makes for great drama particularly when it allows only males to inherit. Something as important to a family–like a castle or a country seat (not to mention a hereditary dignity)–might be absorbed into another family when its heiress marries. To prevent this from happening, an entail could restrict inheritance to the male line only, thus preserving the historical link between a family’s surname and its legacy.

“Family, Jean–Family!”

An awkward transition occurs when there is no direct male heir. Or there is one, but Papa has left dependents from a second marriage. Daughters are particularly vulnerable when they have no close male relative to inherit and thus be inclined to shelter them. Females without such protection occupy the entailed family home on borrowed time. They are at the mercy of a distant male heir. He could expel them at will upon taking possession of his inheritance.

Both the estates of Downton Abbey and Longbourne were entailed.

Many families, however noble, eventually run into a cash crunch. This can be particularly painful when your asset portfolio is historically made up of illiquid assets, like large chunks of land. But when conveyance is restricted by an entail–that too poses an awkward circumstance when pockets are to let.

If the future heir can be persuaded to part with his claim, however, the entail can be broken.

Two branches of the illustrious Pitt family were endowed with considerable estates and fortunes–the barons of Camelford and the earls of Stanhope. Individuals from both attempted to dissolve the entails protecting their families’ legacies, but for different reasons.

The last Lord Camelford, Thomas Pitt, was half-mad and wholly dangerous. The subject of a past post in this blog, he had no intention of marrying and having children. Nevertheless, he was determined to make sure his estates and fortune went to his sister, to whom he was devoted.

In this 1795 Gillray satire, the radical Stanhope (second from left), tries to slow down the King’s carriage while his cousin, conservative prime minister Pitt, whips up the horses. Many believed the mob had been deliberately assembled and incited to attack the King’s carriage by politicians themselves to inflame reaction to the French Revolution.

According to his cousin, the formidable Lady Hester Stanhope, Lord Camelford paid fifty thousand pounds to break the entail holding the Camelford estates and fortune in trust for the next male heir. The arrangement must have paid off this individual in exchange for the surrender of his future interest in the inheritance. I haven’t yet discovered the identity of this person. He was most likely a distant male cousin, like Mr. Collins of Pride and Prejudice.

He might have even been the earl of Stanhope, whose money problems will be examined shortly.

The effect of Lord Camelford’s bargain allowed his closest relative, a female, to inherit. So when he was killed in a duel, his very pretty sister Anne Pitt inherited not only his fortune, which was considerable, but also the London residence, Camelford House, and the family’s fabulous Cornwall estate of Boconnoc.

Charles, 3rd Earl Stanhope, satirized by Cruikshank, cropped and meme’d by me

The aforementioned Earl of Stanhope, Charles Stanhope, 3rd Earl Stanhope, was also a Pitt through his mother. He had several children, including Lady Hester. All the Stanhope estates and fortune were entailed to his heir, a boy still in his minority when Papa ran into financial difficulties (again).

According to Hester, her father held her brother prisoner at the family’s country seat. Young Philip Henry would be released at twenty-one years of age, but on one condition. He must give up his future inheritance to Papa, and release all future claims and rights to the earldom’s estates and fortune.

It was a deplorable circumstance that proved an embarrassment to his cousin, the prime minister, William Pitt the Younger.

‘She was courageous, morally and physically so; undaunted and proud as Lucifer.’ — Charles Meryon, Memoirs of the Lady Hester Stanhope

Hester foiled her father’s plan by helping her brother to escape. She died penniless, but managed to save the Stanhope legacy for future earls.

All male.

*This blog post deals with English law as it was during the Regency. Not as it stands today. Secondly, this blog post is not intended as legal advice. There are generalities being made here–every circumstance warrants a fresh analysis not possible in this format.

The Entail of the Regency – Part One

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This blog often analyzes the social stratification (there’s a mouthful) of Regency-era England. It is the Maypole around which Jane Austen spun her tales and today’s authors rely upon time and time again for character development and conflict. Rules determine a person’s rank in society. The entail insures that the descendants of that person also enjoy the same precedence.

But rules are made to be bent or even broken.*

In the event of rival claimants to a title, it is the House of Lords who must interpret the entail language contained in the original grant of the hereditary dignity at issue. The inheritance history of earldom of Oxford, which is very long indeed, at one time hung in the balance between the male descendants of two previous earls.

“This Earle of Oxford, making of his low obeisance to Queen Elizabeth, happened to let a Fart, at which he was so abashed and ashamed that he went to Travell, 7 yeares. On his returne the Queen welcomed him home, and sayd, My Lord, I had forgott the Fart.” — Brief Lives by John Aubrey

When the 18th Earl of Oxford died without issue, Baron Willoughby of Eresby pressed his claim to the earldom, his mother being the daughter, and heir general, of the 16th earl. The other claimant, Robert de Vere, was more distantly related to the deceased earl, being descended from a younger son of the 15th earl.

The original grant of the earldom of Oxford was made by the Empress Maud to Alberic de Vere with the remainder to his heirs, (meaning the children of his body). His oldest male child would succeed him, being given preference by custom and precedent over all his other children. The children of the oldest male, including females, would then be given preference as lineal heirs over their cousins, males included, the so-called collateral heirs of the original grantee.

Isabel, 8th Countess of Devon, inherited the earldom according to its entail, with remainder to heirs general (as opposed to heirs male). This must have troubled her as much as it did her male colleagues. At one point, she, a tenant-in-chief to the king, went into hiding to avoid a forced marriage to Simon de Montfort. She outlived all her children and was succeeded by a collateral heir, the male descendant of the 5th earl. Pictured: a carving in Dorset’s Christchurch Priory purportedly to be her likeness.

Several successors to the earldom of Oxford were attainted for treason. Afterwards, depending on who you ask, the earldom was either revived or granted via a new patent to their de Vere descendants. This confusion was partly due to Parliament’s involvement in such proceedings.** Statutory language ignored the terms of the original grant to give the remainder to heirs male of the body. Eresby, a lineal heir, was passed over for an heir descended from a male in the collateral line.

In the end, a captain in the Dutch army named de Vere became the 19th Earl of Oxford.

And yet time hath his revolutions: there must be a period and an end to all temporal things–finis rerum: an end of names and dignities, and whatsoever is terrene, and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Nay, which is more and most of all–where is Plantagenet? They are entombed in the urns and sepulchres of mortality. And yet let the name and dignity of De Vere stand so long as it pleaseth God.”

A Digest of the Laws of England Respecting Real Property, Volumes 3-4, by William Cruise, citing the Lord Chief Justice Crew’s magnificent opinion rendered in judgment on the entail of the Earldom of Oxford.

A troubling prospect occurs when there is no male heir of the body. In that case, the language of the original grant can be crafted to insure the family preserves its precedence for future generations.

A female is better than no heir at all.

For example, that clever lawyer and Lord Chief Justice of the King’s Bench, William Murray, 1st Earl Mansfield was bound and determined that the 2nd Earl would be a Murray, too. He did not have heirs of the body himself, he and his wife being childless. The nearest male relation was his nephew, David Murray, Viscount Stormont. So he crafted a special remainder to the entail, writing in his nephew’s name for the King’s signature.

But before the King could sign them, his lordship began to have second thoughts. Perhaps he had not done enough to insure a Murray would sit in the House of Lords. Politics of the time could very likely prevent David from being summoned.

He was a Scot.

To remedy the problem, the Lord Chief Justice sat down again to create a new special remainder to the entail. Striking the tail mail language, he rewrote the grant to make the earldom pass to a female. David’s wife would become the next Countess of Mansfield. The entail further provided that the male heirs of her body by his nephew would succeed her–Murrays all of them.

The Lord Chief Justice and his wife were comforted in their childless state by taking in two girls, Dido Elizabeth Belle and Lady Elizabeth Murray. Born overseas, they were sent to live with the Earl and Countess in Robert Adam’s gorgeous creation, Kenwood House. The artist of this famous portrait, David Martin, won recognition for the ‘honest, natural style’ of Scottish painting.

But times were a-changing. The bias against a Scot taking a seat in the House of Lords disappeared (if it ever existed). His lordship accordingly wrote out another set of letters patent with a more conventional entail. Duly signed by His Majesty, the grant of a new title was made–the Earl of Mansfield, second creation, and a special remainder to his nephew David.

Just to be on the safe side.

*This blog post deals with English law as it was during the Regency. Not as it stands today. Secondly, this blog post is not intended as legal advice. There are generalities being made here–every circumstance warrants a fresh analysis not possible in this format.

**Further complicating matters was a contest between heirs general for the hereditary dignity Lord High Chamberlain of England commonly granted to the Earls of Oxford.