William Fitzhardinge Berkeley Fitzhardinge.

A narrative of the minutes of evidence respecting the claim to the Berkeley peerage, as taken before the Committee of privileges in 1811. Together with the entire evidence of the persons principally concerned. To which are added, facsimiles of the banns, and register of the marriage: extracted from online

. (page 2 of 22)
Online LibraryWilliam Fitzhardinge Berkeley FitzhardingeA narrative of the minutes of evidence respecting the claim to the Berkeley peerage, as taken before the Committee of privileges in 1811. Together with the entire evidence of the persons principally concerned. To which are added, facsimiles of the banns, and register of the marriage: extracted from → online text (page 2 of 22)
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House what advice Mr. Bearcroft gave upon thit subject ?
—He recommended a second marriage, under the drc«m-
stances of the case.

Was that advice in Writing ? — ^No, 1 think it was not in
ivriting.

The At*onieyi<T«ieral ol^edted *o the «vk}enoe»
Mr. Serjeant Best was heard in eupport of the same.
Thecouiis^ havii^ withdmwn, t^^re agsm called in;

-ea^ tihe <:oufi!sel for ^ petitioner were directed to pro*

tceed :

Did your Ladyship in&mediately 'acqukste itt the ftflvioe
<rf Mr. Bear cfoft, that t)iere should be a sefcdttd ntofifege ?~
No, I did not.

What were your Lady^ip^s retts^ns for TM ittittrediately
'^cqaiesc^irtg fn that ztdvicef— 4 thought it -would he for-
saking my eldest son, and giving up all pcte^lbilify, in rny
own mind, of proving the first marriage^

In €(M?iseq*ience of this, h^ your Ladyship a second
interview with Mr. Bearcroft ?•— Yes, I hdt4.

Did he get over those difficulties which ejristed in your
Ladyship's mind, and how ? — ^He did rrot quite get over
t^ difficulties.

But did your Ladyship submit to his opinion?— -He
Vvenft to Brighton, afwd I determined to reroarn unmarried
till he teturned. Mr* Bearcroft did not then know veho I

In consequence of the advice you had received from Mr.



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i^rty«(red, t)r iras ft stiU concealed >— Tbe marriage was stiB
concealed.

Did yoar Ladyship lake tbe title of Countess of Betke-
ky, or did your Ladyship pass by the same name yon had
fimnerly passed by f — ^I passed by tbe same name I had
done before, and rd^ised to be acknowledml then.

By what name did yonr Ladyship pass ? — ^Miss Tudor.

Down to what period of time dia your Lady^p con*
thiue by tbe natnecSr Miss Tudor? — ^I cannot exaictly tell to
a few months, but I think about tbe latter end of 1797, ot
tbe beginning of 1798.

Is the Committee to miderstand that your Ladyship then
iBSnmed the title of Countess of Berkeley ? — ^Yes ; I did.

Was the petitioner then called by the tide of Lord
Dorriey?-^! cannot answer to a few months, bat very
soon after.

^ From the p^od when the petitioner was called by the
^tle of LordlDuTsley down to die present time, has he
b^en calted by the tide of Lord Dursley ?— Until his fe.
therms death*

Bzs be been in evety respect treated from that time as
the eldest li^ttimate son oi the late Earl of Berkeley ? —
Yes ; he was treated so from die hour of his birth, except
in taking the tide.

Does your Lady^p recollect die occasion upon which
he was first called Lord Durslgr ? — It was in consequence
of an opinion given by Lord Chief Justice Mansfield.

Your Ladysnip was living with Lord Berkeley at the
period of his last ilhiess and death > — ^Yes.

Can your Ladyship form any opinion as to the cause of
that illness?

The Attomey-Genoal olgected to the qnestioD.

Mr. Serjeant Best and Sir Samuel RomiUy W«e heard w
«^ort of the ^ue^on.

The Attorney^^General was heard in reply.

The counsel baring withdrawn, were again called *«^'*
and tbe Lord WaMngham informed them, that the of^^^
tioa piopoUBded ought not to be put.

Whether whilst Lord Berkeley was lying ill at 'Berk^]^-
Casd^ bis Lordship did not dictate to your l^djpbio /^
tainletters?-Tes;hedid. Dgtzedby-L^aC^lC ^

How \nntr fv»^r^ T^r/I Y^rlr^1^^*o AtKkth WaS It that' ^__



( 6 )

seven or eight days, but not to my recollection, for 1
thought it had been only three op four days.

Was Lord Berkeley then in such a state that it appeared
to your ladyship he was satisfied he was about to die ?— •
Yes ; he was.

What did your ladyship do with the papers you took
down from Lord Berkeley's dictation? — I gave them to
Mr. Hughes, tutor to my children, by Lord Berkeley's desire.

Then a letter was shewn to the Countess of Berkeley,
and she was asked.

Is that one of the letters ? — Yes ; it is.

Is that signed by the Earl of Berkeley ? — Yes.

Does your ladyship recollect, -that besides the one just
shewn to your ladyship, which was addressed to Lord
Craven, there was another addressed to bis Royal High-
ness the Prince of Wales ? — There was.

Was there any other letter addressed to any other per-
son besides the one shewn to your ladyship of the 5th,
addressed to his Royal Highness the Prince of Wales?—
There was one to Admiral Berkeley.

Does your ladyship know whether that letter addressed
to Admiral Berkeley was forwarded to Admiral Berkeley
on his station abroad ? — Yes ; it was.

Your ladyship is understood to say that the letters you
took down from the dictation of Lord Berkeley you deli-
vered over to Mr. Hughes ? — ^I did.

By Lord Berkeley's orders ? — Yes.

Did your ladyship in consequence give any directions,
and what, to Mr. Hughes ? — Lord Berkeley desired me to
take them to Mr. Hughes to have them written out, and
to be returned to him (Lord Berkeley), for his lordship's
signature.

Is the present claimant the first son of the marriage of
which your ladyship has spoken ? — He is.

The Countess having withdrawn. Dr. Edward Jenner
was again called, and asked if he had seen the deceased
Earl write? answered. Many times; and being shewn the
entry in the registry of the parish of Berkeley, was asked if
he believed that signature/' Augustus Thomas Hupsman,"
to be the hand-writing of Mr. Hupsman? answered in the
affirmative. Of this signature he entertained no doubt ;
but he was not so confident of the rest of the entry being e
in Mr. Hupsman's own hand, who had a peculiar manner



( 7 )

Then the entry was read, and is as follows :

*• Banns of Marriage between Frederick Augustus Eari
of Berikelqr, of this Parish, Bachelor, and Mary Cole,
Spinster, were published on the following days, namely, on

Sunday the ^th of November.

Sunday the 5th of December.

Sunday the 12th of Deceml^er 1784.

Augustus Thomas Hupsman, Curate."

The book was delivered in and inspecced by the Lords.

Dr. Jenner being asked if Mr. Hupsman, tlie deceased
clergyman, left a widow and a daughter behind him ?
answered. Yes ; and that both were living ; the latter beiug
married to a Mr. Hicks, at Berkeley. He abo recollected
a ijnan of the name of John Clark, being clerk at the time,
whom he also thought was still living ; and that a man of
the name of Pruett, officiated for some years for John Clark,
as the lay clerk of the parish of Berkeley, but who had
then been dead about seven years. Pruett died at Berkeley,
and was by trade a mason^

Dr. Jenner being asked if he knew any thing of Barnes,
a man whose mark was signed in the registry ? answered.
Nothing whatever.

Dr. Caleb Hillier Parry, who also attended his Lordship
in his last illness, confirmed the evidence given by Dr.
Jenner.

On the 11th of March, the will of the late Earl Berkeley
was brought into the House, from the Recrj^try of the
Prerogative Court of Canterbury, and John Hone, one of
the subscribing witnesses, attested the same; however,
the Committee were of opinion that the question. Whe-
ther the will offered in evidence by the Counsel for the
Petitioner be admissible, should be postponed.

Thomas Rudge being called in, and having been sworn,
produced a book, indorsed "Presentations, Sequestrations,
Confirmations," ^c. in which the appointment of Mr-
Hopsnian and other clergj men succeeding to the living of
3erkel^y, was entered.

Then JOHN SCRIVEN l>eing called in and sworn,
was examined as follows : ^ r^ i

Of what profession are you ? — A conveyanceFedbyGoOglc



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and arrived at Berikeley on th^ 7th of March, the following
day.

By whose direction did. you go, at whose instance ?-^At
the request of Mr. Boodle.

He was at that time Lord Berkeley's solicitor ?-^He was.

Will you state to the Committee what you found on
arriving at Berkeley ?— On our arrival at Berkeley we went
immediately to the Castle, my Lord Berkeley's residence,
and enquired for a Mr. Simmons, whom I then understood
to be either the steward or bailiff of the Noble Earl. Mr.
Simmons was absent Mr. Carrington, who was with me,
proposed that we should go down to the Parsonage House.

Did Mr. Carrington go from town with you P-^-He did ;
the object was to see whether the registries of the parish
were at the Parsonage House or not ; Mr. Carrington, as I
understood, thinking it possible that they might not have
been sent from the Castle to the Parsonage, agreeably to
directions for that purpose that he had previously given.

You found them at the Pai^onage House? — We there
found the box that contained them. To the best of my
recollection it was empty ; I cannot positively state that as
a fact. We then returned to the Castle, ?ind left word that
we were going down to the inn, desiring to be sent for as
soon as Mr. Simmons returned. We were accordingly
sent for, and Mr. Simmons informed Mr, Carrington, that
the books were then in the custody of a Mr. Lewis, (I think
that was the name) the curate of the parish. Mr. Car-
rington directed a porter at the Castle to go down to Mr.
Lewis, requesting that the books might be sent up. Mr.
Lewis came himself, hut without the books ; and, on
Mr. Carrington's suggestion that they should be deposited
in Lord Berkeley's evidence-room for safe custody, Mr.
Lewis desired the same porter, I think it was, to accom-
pany him to his house. In the mean time we went into
nis Lordship's evidence-room, and shortly after the books
were sent to us : I believe they were five in number. We
began our search, each taking a book ; and I think that we
went through the whole of the five books without making
any discovery. We exchanged books. Mr. Carrington
/\hc^rv^/l in tti^ flint h(^ fhnuffht a hook which he then had



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die banns of marriage of die Earl and Countess of Berkeley.
Encouraged by this, we resumed our search, and went
together over oae book. We observed, and I think U first
occurred to me, that there was a pudcering at tl^ end of
one of die books ; and if I moUect ri^t, there was an
appearance of the cover of a letter, or some such thing,
watered upon that whidi appeared to be the cover of the
book. I again took my pcniKniie and opened a comer of .
it, and soon found that it was a r^istry,and then (perhaps
rather carelessivj tore it up; and I think Mr. Carrington
made a copy of it, and it proved to be die registry of the
marriage* oaving made a copy, we closed the books, and
put them into this box, and then left the evidence-room.
It was understood l>etween us, that the motive of our
coming to Berkeley, and our success, should not be spoken
o£ I'be inclination of my own opinion, I must confess,
was to have mentioned it ; but it was so agreed we should
not speak of it; we accordingly went for a very few
minutes into the Casde, and then proceeded to the inn,
and took a chaise, and immediately came back to town.

Where did you leave the books?— In the evidence-
room.

In the box you aie speaking of? — ^I believe in the idoi-
tical box.

The witness then requested permission to examine the
registries minutely, as he had not seen them these tea
years. Then the r^^tiy oi the marriage was shewn to
the witness, and haviug inspected it, he was asked.

Is that book which you are now looking at in the same
state in which it was when you left it at Berkeley ?— These
seals were not upon it at the time we Idt it at Berkeley,
nor was this writing at the bottom of the cover beginning
Whh the words, "I, the Reverend Caleb Carrington," and
^idinig with hb name; and the certificate in the left
comer, b^innii^ with the words, '* We do hereby certify,**
and aiding with the name ** L A. Simmons/*

This part is irr^ular or tagged ; did you take any par*
ticular notice of that after you had turned up this leaf?—
I did not pay any attention certainly to the circumstance
of its beii^ so ragged ; but I perfectly well recollect tear-
ing it up rather in baste, being flushed with success of ^
Smling it, and I am convinced that in doing so I t(»e it from



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Mn Carringtoii» his companion. Neither did he coniititi«
mcate the circumstance of his having found the register
to any one person.

The Reverend CALfeB CARRINGTON was called
iu^ and having been sworn, was examined as follows i
Are you now vicar of Berkeley ? — ^I am.
How long have you been in that situation ?— -I was in*
stituted to the vicarage of Berkeley on the I4th of January
1799.

^ Had you been in the family of the Earl of Berkeley pre*
viously to your being vicar of Berkeley ? — From the spring
of the year 1794.

In what situation ? — ^As tutor to the elder children ; all
there were at the time.

Do youj in the year 1799, recollect any conversaticm with
the late Earl of Berkeley P—Certainly.

State to their Lordships any conversation you had with
the late Earl of Berkeley respecting his marriage ?—^In the
yea^ 1799, about the beginning of Februaiy, the Earl of
Berkefey was then anangmg matters for paying his income
tax, or delivering in aq account of his income, and several
conversations passed at that time between us on^the sub^
ject; in one of the last of them he observed, after having
made deductions on other accounts, that he could not make
any deduction on account of his children^ though he ought
to have done so.

Mr. Attorney Geneial submitted that though the decb*
rations of a iather touching his fomily were evidence, yet
his declarations of a particular fiu^t were not admissible^
and as the tendency ot the question put was to draw ftom
the witness proof of declarations of Lord Berkeley re-
specting particular facts, on that ground he submitted tht
evidence offered ought not to be received*

Mr. Serjeant Best of Counsel for the petidcner stated*
that the enquiiy he was making was with a view to th«.
declarations of Lord Berkeley^ as to his marriage, and th«
Oliildren by that marriage.

Mr. Attoniey-General stated, th«t if oflTered in that view
fci« had no objection to it ; bul the answer given appeared '
t^ be going in a different direction. ^^.^.^^^ bvGoOQle

^Will vou state what the Noble Earl said ott that ocS-



( If )

that he 6ughl to have made, among other deductions, a de-
duction on account of his children, sts they were really
born in wedlock, though they had passed as otherwise
born.

Have the goodness to state what Lord Berkeley further
said on this subject? — Lord Berkeley further said, that a
ma.rriage had taken place between him and the lady who
was the mother of the children some years before, I ao not
know that he particularized the year, but before the birth
of the children, but that the said marriage was totally
v6id on account of having never been registered.
Lord Berkeley made that observation ?— Yes he did.
Do you recollect what further passed on Lord Berkeley
making that observation ? — I said I thought the marriage
might be capable of proof by other means ; be said No, it
could not, since the Marriage Act.

t)id you press him to take the opinion of counsel on that
subject ?— 1 proposed that immediately.

Who was the counsel whose opinion you proposed
taking ? — Mr. Mansfield.

Now the Lord Chief Justice of the Common Pleas ?—
Yes.

Do you know whether the opinion of Mr. Mansfield was
taken on that subject ?— I believe at that time Lord Berke-
ley was so positive in his ofrinion, that a marriage without
registration was totally void, that he refused to comply.

Did he afterwards comply ?— Afterwards, on a subse-
quent conversation which I took an opportunity of having
as early as I could, he consented tnat I should write to
Mr. Mansfield.

(By a Lord.) When was that conversation ?— I believe
the next day, it was the first opportunity I had of convers-
ing with his lordship.

Then a letter was shewn to the witness, and he was
asked by counsel. Is that the letter you received from Sir
James Mansfield in answer to your letter ?— To the best of
my knowledge it is : I have no doubt that this is the letter
in answer to a letter written by me.

When did you receive it?— About the 14th of February
1799.
The letter was read and is as follows : Digitized by Goo^le
* Sir, * Temple, February 15th.



I IS )

but it is void if it was not performed in a parish churcb,
or if there performed without banns being published or a
licence, the publication of banns or a licence being neces-
sary to make a marriage valid.

• The single witness now survrving may be sufficient to
prove the marriage. The parties, in a case so circum-
stanced that they can be examined, may also prove, the
marriage, but this can hardly happen in the lifetime of the
husband, because the only question which can produce an
enquiry into the truth of the marriage must be owing to
some daim made by the children as legitimate, and such
claim can hardly be made during the life of the husband ;
after his death his wife might be examined to prove the
marriage in support of such claim by the children. It does
not appear to me that any bill can be filed to perpetuate
the testimony of these witnesses. I do not know that a
signing the declaration proposed in the register where the
baptisms of the children bom before the second marriage
have been registered will be of any use, but it cannot I think
do any harm, and therefore it may be adviseable to make
the declaration, and if made, it should express not only
the fact of the first marriage, but the reason why it was
supposed not to be valid. The same sort of declaration^
if any, should be made where the baptism of the children
bom since the second marriage is entered, to explain the
reason of the difference in the registrations prior to the
second marriage. You do not give me your direction, but
I collect it from the date of your letter. I am,

* Your obedient humble servant,

* J. Mansfield.

* I have answered your questions on account of the sin-
gularity of the case, but it is quite of course to do so, and
it is unpleasant, because, for want of explanations, often
necessary, opinions so given are hazardous and lead to
enor.'

Do you recollect afterwards consulting Mr. Mansfield on
this subject? — Lord Berkeley afterwards consulted him on
the subject, not myself.

Mr. Carrington being asked by counsel. Where he found

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morning. [Then the witness produced a paper, and pro-*
ceeded as follows:] * On the 7th of March 1799, 1 arrived
at Berkeley from London with a gentlemen named Scriven,
appointed by Mr. Boodle, but a stranger to me, for the pur*
pose of examining in the most accurate manner possible
the parish books, and among papers of the late Mr. Hups-
man, if any such were to be met with, for a registration of
the marriage of the Earl of Berkeley, which I was informed
had been entered and attested in the parish book in the year
1785, but by permission of the parties either concealed or
destroyed, by Mr. Hupsman. Having obtained from Mr.
Symonds the key of the evidence room at Berkeley Castle,
where I had been informed some papers of the late Mr.
Hupsman had been deposited, I examined them in com-
pany with Mr. Scriven repeatedly with all possible care,
but could find no trace or memorandum of the marriage.
1 then sent John Mills, the porter at the castle, to the
Rev. Mr. Lewes's, the curate at Berkeley, to fetch the pa-
rish register books to us. Instead of sending the books, as
desired, Mr. Lewes came in person but without the books,
alledging that he often wanted them, and that it would be
less trouble to him to keep them at his house. I told him
that he might keep the books that were in use at his house ;
but the old books which had been filled up some years,
and were done with, had better be kept for safety till I came
to reside at the vicarage house, in the evidence room, under
the care of Mr. Symonds, in a strong oak box I had pro-
vided, and which I shewed to him, where, by application
to Mr. Symonds, Mr. Lewes could have access to them at
all times. Of this Mr. Lewes approved, and John Mills
the porter v/as again desired by Mr. Symonds, who was
present, as well as Mr. Scriven at this conversation, to go
to Mr. Lewes's house for the old books, which he did, and
brought them to Mr. Symonds, who gave them to me in
the presence of Mrs. Crouch then housekeeper ; they were
five in number, some of them registers of banns and mar-
riages, some of baptisms and burials. After spending a
considerable time in fruitless search in the common way of
searching, expecting to find one name after another, first
one of us examining a book and then the other, by turns
changing tlie books from one to the other, when one had .e



( 15 )

edge with a sharp penknife by Mr.,Scriven,was discovered
to be two leaves pasted together round the edges ; we soon
opened them and found the entry of the banns by Mr.
Hupsman, of which we immediately took a correct copy,
which we signed with our names ; after this we had hopes
that the long sought-for entry of the marriage might still
be found, and we began our search again if possible with
still more diligence than before : the result was favourable
to our labours, for we discovered it concealed in the inside
of the cover of the book upon the pasteboard ; it appeared
to have been written between lines ruled with ink for the
purpose upon the last blank leaf of the book, but the wrong
side upwards, which made me suppose that, at the time
of the entry, the book might be reversed, and this appear
to be the first entry made in it. The leaf appeared to have
been divided in a liae from side to side without separation
from the binding. Another marriage was entered upon
the upper side of the same leaf on the part left uncovered ;
the piece of the leaf covered which contained the entry
was turned down upon the pasteboard cover of the book
Kke a strap, the writing downwards ; upon this was pasted
a half-sheet of paper, which, to a slight observer, effec-
tually hid the strap, and the whole seemed the original
cover of the book, over which an old paper was stuck with
wafers. We were led to the discovery by a small pucker
or two, and a small rising of the paper, not knowing whe-
ther there might be any thing under, or if any thing, in
what manner it might be placed. We happened to open
the bottom of the book first, by which means we tore the
entry from the book, of which I am certain it had been
part, by comparing the parts separated and the indents
exactly fitted each other. After taking a correct copy, we
left the entrv fastened to the cover of the book \}y a blank
leaf or half sheet of paper that had been pasted over ;
we locked it with the other old registers, as I had promised
Mr. Lewes, in the strong oaken box, and I gave the key of
the box and the key of the evidence room to Mr. Symonds
in the presence of Mr. Scriven and Mrs. Crouch, and set
out immediately for London in corapanj^ vrith Mr. Scriven.'

Point to the other en tiA"^ of marriurre vou allude to? — .
This is it f pointing to it J; the date of it is the 94lh ofle
June in the year 1790. Then poiritinfr to the marriage



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. ^ After a short c^Mence from Lprd Berkeley's house ai
Berkeley; oii account of some difference, Mr. Carrington
leturoetl, and continued to live in the &mily. In con-^
sequence of acknowledging this, he was asked whether,
during the five years intimacy which he had with Lord
Berkeley, he ever leariit froin him, or his lady, that there
had been any marriage prior to that of 1796, or that any
one of the children then bom were legitimate? he ^nswer«
ed, never.

JDid net you, said the Solicitor General, always collect
from him the contrary ?— No, I think not ; it wras a dubious
matter.

By what name did Lady Berkeley go ?— By the name of
Miss Tudor.

It was dubious whether she Was married, or not, going
always by the name of Miss Tudor?— When she went by
any name at all, it was that of Miss Tudor ; but she did
not in the family always go by that natne.

The only name by whidi you heard this lady called was
that of Miss Tudor ?— -Sh^ was addressed sometimes by
letter as Lady Berkeley, and sometimes I believe people
personally addressed her as such, but I cannot point out
who they were.
. Did you ever address her as Lady Berkeley? — Never.

l)id lAd Berkeley ever address ^er so?— He usually
called her " Mary," and when he asked for her he used to ^
ask " Where is the Lady, or, your Lady ?"

t)id any of the company with whom they associated ever
address l^dy Berkeley by that title?— Most well-bred people
addressed her by neither title, but as Madam.


2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Online LibraryWilliam Fitzhardinge Berkeley FitzhardingeA narrative of the minutes of evidence respecting the claim to the Berkeley peerage, as taken before the Committee of privileges in 1811. Together with the entire evidence of the persons principally concerned. To which are added, facsimiles of the banns, and register of the marriage: extracted from → online text (page 2 of 22)