Lineage of Ham(m)ersley

HUGH HAMERSLEY, a sporting clergyman, of Cadeby Hall, Wyham cum Cadeby, Ludborough, Lincs, is believed to have been a grandson of Sir Hugh Hamersley (b 1565; d 1636), Lord Mayor of London 1627, a descendant of an old Staffordshire family originally called de Homersley, see DUCAT-HAMERSLEY OF PYRTON MANOR (BLG) - see note below; b 1663; educ Peterhouse College, Cambridge (admitted 31 May 1680 aged 16 and MA 30 Jun 1687); Chaplain to William III; Honorary Secretary to the Archbishop of Canterbury; Vicar of Roxby, Lincs from 1687; Rector of Broughton, Lincs from 1694; m Mary (b 1688; d 1718), daughter of John Pye of Cadeby Hall, and d 1714 having had issue,

1a HUGH, of whom presently
1a Mary; b 1705; m Neville Healy; d before 1757 having had issue two sons and one daughter, Elizabeth

Sir Hugh Hamersley (1565-1636), Lord Mayor of London 1627. This is the famous 'Ashbourne Portrait' which was believed for many years to be a portrait of Shakespeare ('the Mona Lisa of Shakespeare portraits'). See 'Shakespeare Matters', vol.1, no.1; vol. 1, no. 2 and vol.1, no. 3. Oxfordians have suggested that this portrait has been tampered with by Stratfordians to remove evidence which indicates that the portrait is of Edward de Vere, Earl of Oxford (who the Oxfordians believe was Shakespeare) and add elements (particularly relating to the coat of arms at the top-left of the portrait) to support the assertion that the portrait is of Sir Hugh Hamersley.

Cadeby Hall, Ludborough, Lincs

HUGH HAMMERSLEY, solicitor, of Cadeby Hall, Ludborough, Lincs and Ouslethwaite Hall, Worsbrough, Yorks, the first to spell his name with a double 'm'; b 1706; Solicitor in Doncaster, of which town he became Mayor; m 1stly 1728 Elizabeth (d 1734), daughter of William Wade, Town Clerk of Doncaster, by whom he had three daughters, including Sarah who survived him; m 2ndly 1743 Elizabeth (d 11 Mar 1759 aged 39), daughter of Thomas Archdale of Ouslethwaite Hall, and d 2 Dec 1757 having had issue,

1a Hugh; died in infancy 31 Dec 1746
1b THOMAS, of whom presently
1a Anne

Thomas Hammersley (1747-1812), banker to the Prince Regent.

THOMAS HAMMERSLEY, banker to the Prince Regent and other members of the Royal Family, of Cadeby Hall, Ludborough, Lincs and Ouslethwaite Hall, Worsbrough, Yorks, which estates he sold; b 1747; educ Trinity College, Cambridge; joined Herries, Farquhar & Co., bankers, of St. James St., London (which firm became part of Lloyds Bank Ltd in 1893) on its formation in 1772; founding partner in 1786 of Ransom, Morland, Hammersley & Co. of 57 Pall Mall, which firm he left in 1796 to become a founding partner of Hammersley, Montolieu, Brooksbank, Greenwood, Drewe & Co. of 76 Pall Mall, which firm became Hammersley, Greenwood, Drewe & Co. in 1806, Hammersley, Greenwood, Brooksbank & Co. in 1823, when the firm moved to 69 Pall Mall, and Hammersley & Co. in 1832 (on the death of Hugh Hammersley, his eldest son, in 1840 the firm was taken over by Coutts & Co); m 1771 Anne (d 1822), daughter of Rev. Francis Greenwood, Rector of Higham Ferrers (of the family of Greenwood of Stapleton Park, Pontefract, Yorkshire, a branch of the family of Greenwood of Greenwood Lee, Heptonstall, Yorks.) and sister of Charles Greenwood (1748-1832), partner of his brother-in-law, Thomas Hammersley, who was also a partner of Cox & Co., founded 1758, of Craig's Court, Whitehall, bankers and army agents (see his portrait by Sir Thomas Lawrence); Anne Greenwood was descended from Edward I through the families of de Clare (Earls of Gloucester and Hertford), de Audley (Earls of Gloucester), de Stafford (Earls of Stafford), de la Pole (Earls of Suffolk), Morley (Lords Morley), Hastings of Gressenhall, Hildyard of Winestead-in-Holderness, Girlington of Frodingham, Kelke of Barnetby and Farrer of Ewood Hall, Mytholmroyd, Yorks. It is related that when Frederick, Duke of York (1763-1827), introduced Charles Greenwood to his father, George III, as "Mr. Greenwood, the gentleman who keeps my money", the army agent ventured to remark "I think it is rather his Royal Highness who keeps my money", a rejoinder which greatly delighted the old King. "Do you hear that? Frederick, do you hear that? You are the gentleman who keeps Mr. Greenwood's money"; he d 1812 having had issue, with four sons and three daughters who died young,

Louis de Montolieu (1761-1853), 3rd Baron of St. Hippolyte (Holy Roman Empire), painted in 1806. His arms were 'Azure, a fleur de lys or between three crescents in chief and as many mullets (stars) in base, argent. Supporters: two eagles regardant, wings extended and invected proper. Motto: 'Deo et principi' and 'Per ardua surge'. Painting at the French Hospital, Rochester, Kent (The first baron was one of the founding directors in 1714 and the second baron was a director in 1759). The text reads 'Louis de Montolieu son of Colonel Louis Charles born 1761'.

1a Hugh, banker; b 1774; Partner of Hammersley & Co., bankers, of Pall Mall, London; educ Eton; m 1822 Marie, 4th Baroness of St. Hippolyte (Holy Roman Empire), elder daughter and heiress of Louis de Montolieu (1761-1853), 3rd Baron of St. Hippolyte, partner of Hammersley & Co. (grandson of David de Montolieu (1668-1761), 1st Baron of St. Hippolyte (sometimes Saint-Hippolite), a barony of the Holy Roman Empire granted by Emperor Joseph I at Vienna on 14/2/1706 and descendible to descendants male and female for ever (Melville Henry Massue, Marquis de Ruvigny, 'The Nobilities of Europe', Melville & Co., London, 1910, Elibron Classics re-print, p. 350)), a Huguenot, General in the Army, who fought for William III at the Battle of the Boyne (1690) having left France following the Revocation of the Edict of Nantes (1685) and who accompanied William III to England in 1688, see EGLINTON AND WINTON E. and ELIBANK .B); he d 1840 having had issue by her,

1b Hugh Montolieu, 5th Baron of St. Hippolyte (Holy Roman Empire), of Ridgeway, Lymington, Hants; b 1825; educ Eton; a member of the Royal Yacht Squadron (owner of Zoe, a schooner, Water Lily, a yawl, and Oak Apple, a yawl); m 1 Jul 1851 Henrietta (d 16 Mar 1929), daughter of Lt-Gen. Sir Henry Frederick Bouverie, GCB, GCMG, Governor of Malta, see RADNOR E., and Julia Fanny, younger daughter of Louis de Montolieu, 3rd Baron of St. Hippolyte (Holy Roman Empire), and d 1896 having had issue,

1c Diana Emily; b 1852; m 1875 Pearson Frank Crozier (1851-1892), son of Francis Henry Crozier (1812-1906) and his second wife, Harriet née Paske; she d 1880 apparently without issue
2c Constance Maria, 6th Baroness of St. Hippolyte (Holy Roman Empire) from the death of her father in 1896; b 1856; m 25 Oct 1882 Lt. Col. Henry Edward Stopford (b 13 Nov 1841; d 26 Dec 1895), see COURTOWN E.; she d Jan 1930 apparently without issue*
3c Bertha Caroline; b 1858; d 1879

*On her death in 1930, apparently without issue, the Barony of St. Hippolyte appears to have passed (in accordance with the semi-Salic law of succession, as applied to the imperial title itself in the Pragmatic Sanction of 1713) to the heirs of Julia Fanny (above), younger daughter of Louis de Montolieu (1761-1853), 3rd Baron of St. Hippolyte, who married, firstly, William Wibraham, Capt. R. N., and, secondly, Lt-Gen. Sir Henry Frederick Bouverie (1783-1852), GCB, GCMG, Governor of Malta.

By her first husband, William Wibraham, Julia had issue, Emily Anna Wilbraham (d 1862) and Julia Maria Wilbraham (1819-1924).

Emily Anna Wilbraham married in 1843 Admiral Robert Fanshawe Stopford (1811-1891) and had issue (see also http://thepeerage.com/p3779.htm#i37786) Mary Louisa Stopford, Eleanor Anna Stopford (d 3 Sep 1943), Vice-Admiral Robert Wilbraham Stopford (b 24 Jun 1844, d. 9 Jun 1911), Colonel Arthur Bouverie Stopford (b 21 Oct 1845, d 10 Jun 1902), William Edward Stopford (b about 1846-1852, d 29 Apr 1928), Vice-Admiral Frederick George Stopford (b 10 May 1852, d 18 Jan 1928) and Francis James Stopford (b 6 Jul 1857, d 25 Aug 1928).

Julia Maria Wilbraham married in Malta in 1840 Edward Stopford (1809-1905), Capt. R.N. and had issue Lt.Col. Henry Edward Stopford (1841-1895), who m 1882 Constance Maria Hammersley (1856-1930) but apparenlty dsp (see above), Edith Louisa Stopford (1843-1936), who m 1868 Admiral Sir William Robert Kennedy, G.C.B. (and had issue Alice Emily Kennedy (1870-1939), who m 1911 George Walter Stopford (1870-1959)) and Grosvenor Stopford (1845-1875), Cmdr., R.N., who m 1874 Sara Palmer.

By her second husband, Lt-Gen. Sir Henry Frederick Bouverie (1783-1852), Julia had issue Henry (dsp 1854), Capt. Coldstream Guards, who was killed at the Battle of Inkerman, and Henrietta (d 1929), who m 1851 Hugh Montolieu Hammersley (1825-1896), 5th Baron of St. Hippolyte (see above).

2a CHARLES, of whom presently
3a George, banker; b 1785; Partner of Hammersley & Co., bankers, of Pall Mall, London; d unmarried 1835
1a Anne; b 1773; m 1805 William Ward, Bishop of Sodor & Man, and d 1841 leaving issue
2a Caroline; b 1774; m General Sir Henry Calvert, Bt. (1763-1826), see VERNEY OF CLAYDON HOUSE Bt., and d 1806 leaving issue
3a Mary; b 1777; m 1827 Charles Barker; d 1843
4a Diana; b 1783; m Captain (later Rear-Admiral) George Hills RN; d 1854 leaving, with other issue, a son, George (b 1816; d 10 Dec 1895), who became the first Bishop of British Columbia 1859-1892
5a Frances Harriet; b 1788; d 1876
6a Charlotte Emily; b 1789; d 1858

CHARLES HAMMERSLEY, banker, of Park Crescent, London; b 7 Oct 1782; educ Eton; Senior partner of Cox & Co., bankers and army agents, of Craig's Court, Whitehall; m 1809 Emily Poulett-Thomson, daughter of John Buncombe-Poulett-Thomson, of Waverley Abbey House, Farnham, Surrey, senior partner of Thomson, Bonar & Co., of London and St. Petersburg, Russia merchants, see SYDENHAM B. (Burke's 'Dormant and Extinct Peerages') and HUNTINGFIELD OF HEVENINGHAM HALL B., and d 1862 having had issue,

1a Charles, banker, sometime of Lowndes Square, London and Abney House, Bourne End, Bucks; b 24 Aug 1817; educ Eton and Christ Church, Oxford; Senior partner of Cox & Co., bankers and army agents; unmarried; d 29 Dec 1890
2a HUGH, of whom presently
3a Henry, Indian Army; b 1 Mar 1823; educ Eton; Retired from the Army due to ill health; m Caroline, daughter of Col. Lapsley and d 26 Oct 1883 having had issue,

1b Charles Henry; b 1854; Emigrated to Australia; d Oct 1900 in Melbourne
2b Frederick; b 1856; Emigrated to Australia; d 1902
1b Emily; b 1858 and died young

4a Frederick, Major-General, of Ash Grange, Aldershot, Surrey; known as 'the father of Army gymnastics'; b 1824; educ Eton; Commissioned in 14th Foot, The West Yorkshire Regiment 1842; served in the Crimea including the siege and fall of Sebastopol and the assault of 18 Jun 1855 (medal and clasp of the Sardinian medal and the fifth clasp of the Order of the Mejidie - by virtue of which he became a Knight of the Ottoman Empire); founded the Army School of Physical Training at Aldershot; Inspector of Army Gymnasia; co-founder and first chairman of the Amateur Athletics Club 1866 (which became the Amateur Athletics Association in 1880); m 14 Mar 1854 Sarah, daughter of Right Rev. Michael Keating, Dean of Limerick, and d 22 Dec 1901 having had issue,

Major-General Frederick Hammersley CB (1858-1923) Fatal wounding of Major-General Sir William Penn Symons KCB at Talana Hill 1899 (Major Hammersley was with the General as one of his staff officers and was wounded moments before).

1b Frederick, Major-General, CB (1908); b 2 Oct 1858; educ Eton; Commissioned in 20th Foot (Lancashire Fusiliers) 1876, later raised and commanded 4th Battalion; Sudan Expedition 1884-5 (medal and clasp); Nile Expedition 1898, including the Battle of Khartoum (Osmani and Egyptian medals); Staff Officer in the South African War 1899-1900 (severely wounded at Talana Hill 20 Oct 1899); Major-General 1910; Divisional Commander 1914; Deputy Inspector General on lines of communication 1915; commanded 11th Division at the landing at Suvla Bay (Gallipoli Campaign) 6 Aug 1915; retired 1919; m 1891 Edith Letitia (b 1864), daughter of George Grant, and d 1923 having had issue,

1c Frances May of Curles Close, Bucklers Hard, Beaulieu, Hants; b 1891
2c Edith Caroline; b 11 Sep 1897

2b Mary Emily; b 1857; m, as his 2nd wife, 5 Aug 1891 Edward Reginald Courtenay, see DEVON E., and had issue
3b Florence; b 1862; d 1933

1a Emily; b 6 Feb 1810; m 16 Jun 1835 Charles Richard Littledale (b 1807; d 1892) of Scarlets, Wargrave, Berks; d 12 Jan 1878
2a Maria; b 29 Sep 1811; d 1 May 1855
3a Julia; b 18 Mar 1813; m 25 Jul 1836 Edward Jekyll (b 6 Feb 1804; d 26 Mar 1876) of Wargrave Hill, Henley-on-Thames, Capt Grenadier Guards, by whom she had issue five sons and two daughters, including a fourth son, Col. Sir Herbert Jekyll, KCMG, see FREYBERG B., an elder daughter, Caroline (b 16 Mar 1837; d 6 Dec 1928), who m 28 Feb 1865 Frederick Eden (b 1828; d 5 Dec 1916) of the Palazzo Barbarigo, Venice, son of Arthur Eden (1793-1874) of Cannizaro Park, Wimbledon, London, author of '
A Garden in Venice' (1903), see EDEN OF WINTON B., and a younger daughter, Gertrude Jekyll (b 29 Nov 1843; d 8 Dec 1932), the well-known gardener; she d 19 Jul 1895

Cannizaro Park, Wimbledon, London (from the garden side), now a hotel - home of Arthur Eden from 1842-1854.

Cannizaro Park, Wimbledon, London (side view) - home of Arthur Eden from 1842-1854.

The Palazzo Barbarigo, Venice (purchased by Frederick Eden in 1884).

The Garden of Eden, Island of La Giudecca, Venice, by Henry McCarter (Bacon, Lee, 'Venice Gardens', Century magazine, August 1901) - a 1903 photograph of a similar view is here. The garden was created in 1884 by Frederick Eden (1828-1916) and his wife, Caroline, elder sister of Gertrude Jekyll (1843-1932); it is the largest private garden in Venice and is now a national monument. The church in the background is Palladio's Il Redentore. The garden became a meeting place for poets, philosophers, artists, writers, actors and others, including Eleonora Duse, Gabriele D'Annunzio (who wrote about the garden in his scandalous erotic novel 'The Flame of Life'), Proust, Henry James (the garden apparently inspired him to write 'The Aspern Papers'), Baron Corvo, Lady Lindsay (who wrote a poem about the garden called 'In theTime of Lilies'), and Jean Cocteau (who wrote a poem about the garden called 'Souvenir d'un soir d'automne au jardin Eaden'). After Frederick Eden's death the garden was bought by Sir James Horlick (1886-1972), an officer in the Coldstream Guards, who gave it to Princess Aspasia of Greece (1896-1972). Her daughter, Alexandra, Queen of Yugoslavia (1921-1993), was partly brought up there (she regarded the garden as her true home) and lived there for a time with her husband, ex-King Peter of Yugoslavia (see her memoir ‘For a King’s Love’). After Aspasia's death it was apparently purchased in 1973 by the Austrian artist Hundertwasser (1928-2000), although he later denied owning the garden. On his death it appears to have passed to a company called Gruener Janura AG (c/o Fidiuris GmbH, Gotthardstrasse 3, 6300 Zug and Isola Giudecca 138, 30133 Venezia) and is now (as of 2012) reported to be dilapidated and closed to the public.

Frederick Eden in the Garden of Eden. Photograph from 'A Garden in Venice' (1903). Another view of the garden from 'A Garden in Venice' (1903).

'On La Giudecca, Venice' by Terrick John Williams (1860-1963). A view of the Rio della Croce; the Garden of Eden is on the right. A photograph of this view appears in 'A Garden in Venice' (1903) by Frederick Eden. The church is Santa Maria della Salute.

The entrance to the Garden of Eden today. Listen to the BBC Radio 3 broadcast of 6 July 2012 'Requiem for a Garden of Eden' ('today the garden is locked and no-one answers the bell... so it remains... a kind of sleeping beauty in the heart of Giudecca').

'Mrs. Eden's Garden' (1904) by Mortimer Menpes (Menpes, D. & M., 'Venice', Arthur & Charles Black, London, 1904). 'If the sight of the blue skies fills you with joy, if a blade of grass springing up in the fields has power to move you, if the simple things of nature have a message that you understand, rejoice, for your soul is alive...' - Eleonora Duse (1858-1924). 'The Garden of Eden'. Painting in the collection of Mrs. Pamela Milne.

The Garden of Eden from the Lagoon. The church is Palladio's Il Redentore.

'I know a garden beautiful,
Near by the slumbrous seas;
Tall lilies line its dusky paths -
Les rois des fleurs, les lis -
They spread out as a field of snow
Betwixt the lemon trees.'

'In the Time of Lilies' - Lady Lindsay ('From a Venetian Balcony and Other Poems', 1903).

The Garden of Eden was very probably the inspiration for Caroline Eden's sister, the noted gardener, Gertrude Jekyll (1843-1932). In her book, 'The Garden of Eden - A Secret Garden in Venice' (Morosini Press, 2014, p. 41), Annemette Fogh writes: 'The Garden in Venice was, in Eden's time, the most unusual English garden one could find outside of England, and possibly it was Caroline and her experiences from the Mediterranean area, who made Gertrude aware of new colour combinations of flowers, and beds of varying perennials. She came to visit during her formative years and Caroline's ideas could very well have been a source of inspiration for her. The thick lines of Madonna lilies that flowered in June beneah the pergolas were something which Gertrude really admired. The Eden garden became well known in the UK around 1900, not least because Caroline sent many photographs to English garden magazines such as Country Life, where they were frequently published. She also sent them home to her mother and Gertrude at Munstead House. Caroline's garden turned out to be the main source of inspiration for her younger sister's most successful plantings. Gertrude travelled to Venice in 1872 and again in 1876, prior to the establishment of the Eden's famous garden, visiting her sister's first garden next to the Convertite convent. Gertrude Jekyll used Caroline's photographs from the Eden's second garden in her book Lilies for English Gardens, while Arts and Crafts Gardens contain two photos from the garden, used as illustrations for the chapter on pergolas, but without any mention of the photographs' origin. The photo of the lily-walk was taken by Caroline in 1891 and printed in the magazine THE GARDEN, August 29. Underneath the photo it says, "Engraved for THE GARDEN from a photograph sent by Mrs. Eden, Venice." Gertrude does not mention her sister once in her gardening books, diaries, articles or letters, except for the description of the first garden that she and Caroline looked after as children (Gertrude Jekyll, "Children and Gardens", Country Life, 1908, p. 67).' Gertrude did not attend her sister's funeral in 1928.

The Villa Eden at Salce, Belluno, Northern Italy, where Frederick and Caroline Eden spent their summers ('Country Life', Jan 1901).

The Villa Eden at Salce, Belluno, Northern Italy. View from the garden, looking South.

The Villa Eden at Salce, Belluno, Northern Italy. The sala.

The Villa Eden at Salce, Belluno, Northern Italy. Bowling green and herbaceous border.

The Villa Eden at Salce, Belluno, Northern Italy. The summer house.

The Villa Eden at Salce, Belluno, Northern Italy. The garden.

4a Cecilia; b 22 Aug 1814; m 9 Nov 1840 Henry Stuart (b 1 Jan 1808; d 19 May 1880), see BUTE M., and d 28 Feb 1890 leaving with other issue a daughter Gertrude Mary (d 1905) great-grandmother of Charles Eric Alexander Hambro (1930-2002), see HAMBRO B.
5a Caroline, of Lowndes Square, London and Abney House, Bourne End, Bucks; b 17 Apr 1816; d 1901
6a Catherine; b 28 May 1821; m 30 Nov 1844, as his 2nd wife, Thomas Weguelin MP (d 5 Apr 1885), partner of Thomson, Bonar & Co., of London and St. Petersburg, Russia merchants; Director and then Governor of the Bank of England 1855-56, who m, firstly, Charlotte Poulett-Thomson, see SYDENHAM B. (Burke's 'Dormant and Extinct Peerages'); d 21 Mar 1887 leaving issue
7a Elizabeth; b 4 Dec 1825; m 21 Apr 1849 William Baring (b 1 Dec 1819; d Jun 1906), Capt Coldstream Guards, of Norman Court, Hants, see NORTHBROOK B.; d 6 Nov 1897 leaving with other issue a daughter, Rosa Frederica (b 1854; d 1927), who m, secondly, 25 Nov 1885 Lt. Col George William Adolphus FitzGeorge (b 1843; d 1907), eldest son of Prince George, Duke of Cambridge (b 1819; d 1904), grandson of George III, see 1970 edn CAMBRIDGE M., by whom she had, with other issue, a daughter, Mabel Iris FitzGeorge (1886-1976), 2nd cousin of King George VI, who m, firstly in 1912, Robert Balfour (1869-1942), and, secondly in 1945, Prince Vladimir Galitzine (1884-1954), whereby she became Princess Vladimir Galitzine. By her first marriage Mabel Iris FitzGeorge had issue General Sir Robert (Victor) FitzGeorge-Balfour (1913-1994), Coldstream Guards, who commanded the Brigade of Guards from 1958-1960

Arms of Prince Adolphus, Duke of
Cambridge (1774-1850).
George FitzGeorge (1843-1907)
King George III (1760-1820)
= Princess Charlotte of Mecklenberg-Strelitz (1744-1818)
|
Prince Adolphus, 1st Duke of Cambridge (1774-1850)
= Princess Augusta of Hesse-Kassel (1797-1889)
/
Prince George, 2nd Duke of Cambridge (1819-1904)
= Sarah Louisa Fairbrother (1816-1890)*
|
George FitzGeorge (1843-1907)
=
Rosa Baring (1854-1927)
|
Mabel Iris FitzGeorge (1886-1976)
= (1) Robert Balfour (1869-1942)
= (2) Prince Vladimir Galitzine (1884-1954)
\
Princess Mary of Cambridge (1833-1897)
= Francis , 1st Duke of Teck (1837-1900)
|
Princess Mary of Teck (1867-1953)
= King George V (1865-1936)
|
King George VI (1895-1952)
= Lady Elizabeth Bowes-Lyon (1900-2002)
*Their marriage in 1847 was in contravention of the Royal Marriages Act 1772 (but see below), though it is questionable whether it can have been lawful to outlaw otherwise lawful (i.e. canonically legal) marriages in a Christian country where the laws of the Church, which are binding on the monarch as Head of the Church and Defender of the Faith, rule that marriage is 'an holy estate' 'instituted of God' and that 'those whom God has joined together let no man put asunder'. Of course, the Act only applies in the UK so presumably Prince George's marriage was canonically legal in Hanover (it was also canonically legal in England of course) and so did not necessarily affect succession to his title of Prince of Hanover or Duke of Brunswick-Luneberg (held by him and his father) or the order of succession to the throne of Hanover (numerous morganatic marriages were recognised in German states). Augustus Frederick D'Este and Ellen Augusta Emma D'Este, the children of Prince Augustus, Duke of Sussex (1773-1843), who married Lady Augusta Murray in Rome in 1793 in contravention of the Royal Marriages Act 1772, were advised by counsel that the marriage was legitimate in Hanover and that they were in the line of succession to the throne of Hanover (Lucille Iremonger, 'Love and the Princess', Faber and Faber, London, 1958, p. 178-9).

The Royal Marriages Act 1772

The Royal Marriages Act 1772 states:

'That no descendant of the body of his late majesty King George the Second, male or female, (other than the issue of princesses who have married, or may hereafter marry, into foreign families) shall be capable of contracting matrimony without the previous consent of his Majesty, his heirs, or successors, signified under the great seal, and declared in council, (which consent, to preserve the memory thereof is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the privy council); and that every marriage, or matrimonial contract, of any such descendant, without such consent first had and obtained, shall be null and void, to all intents and purposes whatsoever.'

The Act goes on to state:

'Provided always, and be it enacted by the authority aforesaid, That in case any such descendant of the body of his late majesty King George the Second, being above the age of twenty-five years, shall persist in his or her resolution to contract a marriage disapproved of or dissented from, by the King, his heirs, or successors; that then such descendant, upon giving notice to the King's privy council, which notice is hereby directed to be entered in the books thereof, may, at any time from the expiration of twelve calendar months after such notice given to the privy council as aforesaid, contract such marriage; and his or her marriage with the person before proposed, and rejected, may be duly solemnized, without the previous consent of his Majesty, his heirs, or successors; and such marriage shall be good, as if this act had never been made, unless both houses of parliament shall, before the expiration of the said twelve months, expressly declare their disapprobation of such intended marriage.'

The words 'such descendant' are used consistently to mean a 'descendant of the body of his late majesty King George the Second, male or female, (other than the issue of princesses who have married, or may hereafter marry, into foreign families)'; they do not mean such a person who has reached the age of 25 years. Thus, a descendant of the body of his late majesty King George the Second, male or female, (other than the issue of princesses who have married, or may hereafter marry, into foreign families) can marry if:

  • he or she has reached the age of 25 years;
  • he or she has previously sought the sovereign's permission to marry a certain person and permission has been refused (interestingly, there is no provision for a person who has not previously sought permission);
  • he or she has given notice to the Privy Council at least 12 months previously of their intention to marry that person;
  • both houses of parliament have not expressly declared their disapproval of the proposed marriage in that 12-month period.

The third condition is not dependent on the first (because, as explained, the words 'such descendant' do not include an age qualification and it is a 'such descendant' who must give notice to the Privy Council), which means that the person seeking to marry does not have to have reached the age of 25 years before notifying the Privy Council. It is a condition that the person should be above the age of 25 years in order to contract a marriage, not that they should be above 25 years in order to notify the Privy Council. In other words, it is possible to notify the Privy Council before reaching the age of 25 years and, subject to the 12 month waiting time, to marry the moment the person reaches the age of 25 years.

Note that the 'issue' referred to in the exemption necessarily includes not just the children of princesses who marry into foreign families but the lineal descendants of those children as well, including those who marry back into the British royal family and their descendants (there is no exclusion from the exemption for such people). This is because (1) the word 'issue' ordinarily includes remoter descendants* and (2) it would be nonsensical that a child of such a princess should not require permission but that the children and remoter descendants of such a child should.

*Per Wikipedia: 'In genealogy and wills, issue typically means a person's lineal descendants - all genetic descendants of a person, regardless of degree.' (citing Glenda K. Harnad, J.D. and Karl Oakes, J.D., Corpus Juris Secundum, Descent and Distribution § 35 (2015)). Note also that under the Sophia Naturalisation Act 1705, referred to below, the word 'issue' includes remoter descendants beyond the first generation (that is, children).

Now, Prince Adolphus, 1st Duke of Cambridge (1774-1850), married Princess Augusta of Hesse-Kassel (1797-1889), who was the grand-daughter of Princess Mary of Great Britain (1723-1772), a daughter of King George II who married into a 'foreign family'; that of Hesse-Kassel. This means that Prince George, 2nd Duke of Cambridge (1819-1904), came within the exemption to the Royal Marriages Act 1772 (this is called the 'Farran exemption' - see http://www.heraldica.org/faqs/britfaq.html#p2-35) and did not need to obtain the monarch's permission to marry. This means that Prince George's wife, Sarah Fairbrother, was legally Duchess of Cambridge and took the rank, title and style of 'Her Royal Highness'. In addition, their third son, Colonel Sir Augustus FitzGeorge, KCVO, CB (1847-1933), being the only legitimate son, succeeded as 3rd Duke of Cambridge on his father's death in 1904.

The Sophia Naturalisation Act 1705

The argument has been put forward that, prior to 1949 when the Act was repealed, under the Sophia Naturalisation Act 1705, all descendants of the Electress Sophia of Hanover (1630-1714), grand-daughter of King James I via Elizabeth Stuart ('The Winter Queen') and mother of King George I, became British subjects, and since the descendants of British princesses who married into 'foreign families' were British subjects accordingly, their families could not be 'foreign families' in the eyes of the law; so such descendants did not fall within the exemption to the Royal Marriages Act 1772. This would mean, of course, that no-one could ever fall within the exemption, which raises the question as to why an exemption would be included in the Royal Marriages Act 1772 if, under an existing Act of Parliament, no-one could ever qualify under that exemption. This fact alone strongly suggests that the argument is nonsensical.

Even if the descendants of a British princess are deemed to be British subjects, the family she marries into can hardly be regarded as British by the mere fact of her marrying into it - and the Act refers to princesses marrying into a foreign family, not the status of that family after she has married into it. In other words, the question is whether the family is/was foreign at the time of the marriage, not afterwards.

Further, even if it is not the status of the family at the time the princess marries into it that matters (and it clearly is), the idea that because certain members of a family or one branch of it are deemed to be British subjects, it necessarily follows that the entire family is deemed to be British (non-foreign), is itself demonstrable nonsense. One merely has to ask the question: 'Can a family, many or most of whose members are not British subjects and who are, in fact, subjects of a foreign state, none of whose members necessarily live in the UK or even speak English, or are subject to 'British' law, and who regard themselves as being of a different nationality, and have done so for a thousand years, and not British at all, be described as a 'British family' in accordance with the ordinary meaning of the words 'British' and 'family', which are the meanings that would have to be used in a court of law?' For instance, can one properly describe the family of Saxe-Coburg and Gotha as a 'British family',* as those words are ordinarily understood, or the family of Hesse-Kassel or the Danish royal family or the German royal family? The idea is nonsensical. If the family of Saxe-Coburg and Gotha is a British family, then why did the British branch of that family need to change its name to 'Windsor' in 1917? Because 100% of the British people regarded the Saxe-Coburg and Gotha family as German and the British branch of that family wanted to disassociate itself from its German parent branch.

*'I can't imagine any circumstance in which the Princely House of Saxe-Coburg and Gotha would be considered, in Britain, to be anything other than a foreign family.' - William A. Reitwiesner, alt.talk.royalty post dated 11/9/1996, 'Royal Marriages Act coverage'. William A. Reitwiesner was a very widely respected genealogist. A Wikipedia article ('House of Saxe-Coburg and Gotha') states: 'Due to anti-German sentiment in the United Kingdom during World War I, George V changed the name of his branch from Saxe-Coburg and Gotha to Windsor in 1917. The same happened in 1920 in Belgium, where it was changed to "van België" (Dutch) or "de Belgique" (French).' This confirms that the British branch of the Saxe-Coburg and Gotha family was exactly that - a branch. The existence of a 'British branch' does not make the Saxe-Coburg and Gotha family British; the House of Saxe-Coburg and Gotha is a 'foreign family'. This is not rocket science.

The Wikipedia article ('Royal Marriages Act 1772') states:

'Parry argued that the "Farran exemption" theory was complicated by the fact that all the Protestant descendants of the Electress Sophia of Hanover, ancestress of the United Kingdom's monarchs since 1714, had been entitled to British citizenship under the Sophia Naturalization Act 1705 (if born prior to 1949, when the act was repealed). Thus, some marriages of British princesses to continental monarchs and princes were not, in law, marriages to foreigners.'

This is a compete misrepresentation of Parry's arguments.

In the first place, the Act refers to 'foreign families', not 'foreigners' (that is, individuals). As I have pointed out above, the fact that one or more members of a family are regarded as British in law does not necessarily make the family British in law - and it is the family that must qualify as British since that is what the Act refers to.

In the second place, Parry (Clive Parry MA LLB) did not argue 'some marriages to continental monarchs and princes were not, in law, marriages to foreigners'. What he actually wrote was 'Mr. Farran has minutely examined the question as to what is a "family". Mr. Morrah now suggests that a family whose members are British subjects under the Act of Anne is not foreign. Mr. Farran, rightly it is thought [by the author, Clive Parry], denies this.' So Parry actually agrees with Farran that it is the nationality of the family and not the individual members which matters. Later Parry re-iterates his agreement with Farran's argument: 'And he [Parry] ventures to suggest that difficulties are avoided if it be conceded - as Mr. Farran indeed concedes - that it is the "foreign " quality of the family which must be looked to, irrespective of the nationality of individuals comprising that family, and also, as neither Mr. Farran nor Mr. Morrah concedes, that the expressions " Royal Family " and " Foreign Families " are exclusive, each of the other.'

Further, even if, as the Wikipedia article claims (without citing any supporting evidence), Farran's interpretation 'has since been ignored' (it is not ignored by experts and it wasn't ignored by the 'authors' of the Wikipedia article), this has, needless to say, absolutely no impact whatsoever on the merits of his arguments. Clearly, individuals who might be required by the 1772 Act to seek the Sovereign's permission to marry will invariably take the safe route and ask for permission even if it is appears that they do not need permission because they come within the 'foreign families' exemption. Also, of course, it feeds people's sense of self-importance to ask the Sovereign for permission to marry; it's equates to having a 'Look at me! I'm a member of the Royal Family!' T-shirt.

The whole issue of the Sophia Naturalisation Act 1705 can therefore be dismissed as irrelevant. What we are left with is what a common sense reading of the 1772 Act leads us to conclude; namely, that the Act means exactly what it says, which is that any descendant of any British princess who married into a foreign family (as that term is ordinarily understood in accordance with normal rules of interpretation), being a family that was 'foreign' when the princess married into it, is exempt from the requirement to obtain the monarch's approval in the manner provided in the 1772 Act.

The Government's view on the 'foreign families' exemption from the Royal Marriages Act 1772 - Lady Helena Cambridge (1899-1969)

Note also that on 22/8/1919, the Home Office addressed the question of the sovereign's consent, having been consulted about a Special Licence for the marriage of Lady Helena Cambridge (1899-1969), daughter of Adolphus Cambridge (Prince Adolphus of Teck) (1868-1927), 1st Marquess of Cambridge. The Home Office concluded that Lady Helena was exempt from the requirement to obtain the sovereign's consent under the Royal Marriages Act 1772 because her grandmother, Princess Mary Adelaide, was a British princess who had married into a foreign family. King George V's Private Secretary, Lord Stamfordham, was informed by the Home Office that the sovereign's consent was not necessary for Mary Adelaide's descendants. This advice from the Home Office to the King proves that the government's view was that the fact that a person was descended from a British princess whose descendants were British subjects under the Sophia Naturalisation Act 1705, did not mean that the person did not, for that reason, come within the scope of the exemption from Royal Marriages Act 1772. Quite the contrary in fact; a person was still within the scope of the exemption even though he or she, and his or her family (all of Lady Helena's family were British subjects), was a British subject under the Sophia Naturalization Act 1705. If Lady Helena was exempt because her grandmother was a British princess who married into a foreign family, then Prince George was also exempt because his great-grandmother was a British princess who married into a foreign family. It's as simple as that.


National Archives B 17152/9:

Letter dated 22/8/1919 to Lord Stamfordham, the King's Private Secretary, Balmoral Castle, from G.G. Whiskard Esq. of the Home Office:

22nd August 1919.

Dear Lord Stamfordham,

Since I wrote to you yesterday regarding the marriage of Lady Helena Cambridge with Major Gibb, we have gone further into the question with the privy Council, and it now appears that, although the Royal Consent was given for the marriage of Lady Helena's father, this was not really necessary under the Royal Marriages Act, because princess Mary, Lady Helena's grandmother, by marrying the Duke of Teck before he was naturalized had married into a foreign family. Accordingly, the Royal Consent is not necessary for the marriage of any of her descendants. I am sorry to have troubled you unnecessarily in the matter.

Yours sincerely,

[signed by G.G. Whiskard Esq.]

Letter dated 26/8/1919 to G.G. Whiskard Esq. of the Home Office from Lord Stamfordham, the King's Private Secretary, Balmoral Castle:

26th August 1919.

Dear Whiskard,

Many thanks for your letter of the 22nd, explaining that the Royal Consent is not necessary for the marriage of Lady Helena Cambridge with Major Gibbs.

Yours very truly,

[signed by Lord Stamfordham]


The royal consent to the marriage of Princess May of Teck (Lady May Cambridge) (1906-1994), daughter of Prince Alexander of Teck (1874-1957), and Captain Henry Abel Smith in 1931 was therefore unnecessary, This is proved by the fact that no royal consent appears to have been sought or given with respect to the marriages of the two other children of Prince Adolphus of Teck (1868-1927); namely, Prince George of Teck (1895-1981), who married in 1923, and Princess Mary of Teck (1897-1987), who also married in 1923.

This means, as I have said, that the marriage of the Prince George, 2nd Duke of Cambridge, to Sarah Fairbrother was legal and that she was legally Duchess of Cambridge and took the rank, title and style of 'Her Royal Highness'.

The marriage between the 2nd Duke of Cambridge and Sarah Fairbrother

Giles St. Aubyn, in his in his biography of Prince George, 'The Royal George' (Butler & Tanner, London, 1963), wrote (p. 34) that 'although Prince George and Louisa postponed the marriage ceremony until 1847, they regarded themselves as man and wife long before that; as is apparent both from the existence of their family, and from a sentence in a travel diary Louisa kept in 1844. 'I hope,' she says, 'I shall see my dear George waiting for me, tomorrow night. I hope to God to be in his arms and when there, I care for naught else, bless you for tonight my dear husband.'

St. Aubyn says (p. 41) 'In 1843 Prince George was sent to command the garrison of Corfu, where he remained until 1845.' On the same page he says 'In a letter written on 27 August 1854, while H.R.H. was at Varna waiting to embark for the Crimea, he recalled the night he left for Corfu. 'This day, or rather night, eleven years, our dear child Georgy, our eldest boy was born. Well do I recollect that dreadful, that painful night, when I was on the point of departure and left you in the middle of your misery.'' It follows that any form of marriage (mutual undertaking, agreement, commitment or understanding to live as man and wife) that was entered into before 1844, when Sarah Fairbrother wrote the entry in her diary referring to her 'dear husband', must have been entered into before 27 August 1843, before the birth of their eldest child, unless that 'marriage' was effected by letter, which seems unlikely.

In a letter he wrote to his wife on 8 January 1851, the Duke of Cambridge confirmed that the marriage took place exactly four years previously; that is, 8 January 1847 (St. Aubyn, p. 31). This is confirmed by the records of the church registers of St. John's, Clerkenwell. Later in life, the Duke, 'who never forgot anniversaries' (St. Aubyn, p. 275), said that he and Sarah Fairbrother were married the day before he sailed for the Crimea, which was in 1854 (St. Aubyn, p. 33). But Sarah Fairbrother's reference to 'my dear husband' in 1844 strongly suggests that they were married by that date and it is possible that the marriage took place, not the day before he sailed for the Crimea in 1854, but the day before he sailed for Corfu in 1843, where he remained for two years, when Sarah Fairbrother was pregnant with their first child. In addition, King Edward VII believed that the 1847 marriage certificate was a forgery (St. Aubyn, p. 32)*, though this belief has no legal effect of course. According to Charles Kingston, in his 'Famous morganatic marriages' (London, Stanley Paul, 1919, p. 149-161), the marriage took place in 1840, the year they met. All these facts taken together strongly suggest that the Duke and Sarah Fairbrother were actually married in 1843 or earlier, and certainly before the birth of their first child. This would make George FitzGeorge (1843-1907) legitimate, in which case he would have succeeded (did, in fact, succeed) his father as Duke of Cambridge in 1904 and his wife, Rosa Baring (1854-1927), would have become (did, in fact, become) Duchess of Cambridge at that time. George FitzGeorge would have been succeeded by his son, George William Frederick FitzGeorge (1892-1960), who died without issue.

*This begs the question of why King Edward VII was so interested in such an obscure matter (to the extent of demanding sight of the original documents), compared to all the other matters that he could have interested himself in. The only reasonable, or possible, conclusion is that he was concerned whether the marriage was valid or not and whether George FitzGeorge or his brothers were therefore the legitimate children of their parents. But what possible difference would it make to anything whether George FitzGeorge or his brothers were legitimate or not? There are only two things which might be affected; (1) succession to the Dukedom of Cambridge and (2) succession to the throne, because if the marriage was valid then, at the very least, George FitzGeorge and his brothers, and their heirs, were in the line of succession to the throne.

Charles Kingston, in his 'Famous morganatic marriages' (London, Stanley Paul, 1919) states (p. 151):

'When the beautiful girl acknowledged that she loved him he decided to marry her, and then the trouble began. Queen Victoria was furious when her cousin travelled down to Windsor to rave about the beauty he was going to make his wife. In vain did the youthful queen forbid the match; he defied her; and when she sharply criticised the class of bride, he asked her to give Miss Fairbrother an audience. "You will change your mind about her in five minutes," he said, with boyish emotion. "Don't be unjust. Only receive her, and if after that you still think she's impossible I'll reconsider my decision: but I am confident that Louisa will gain your love and sympathy." The queen refused in peremptory tones. She had pointed out to the duke that he was her heir* and that, even if she had children, he would always be so close to the throne that he and his wife would be called upon to take part in innumerable functions. For at least twenty years she would require his support and help in her manifold public duties, and "that woman" would always be in the way and, doubtless, would intrigue for royal recognition and a title and would give no one peace until she had obtained both. It is easy to reconstruct the scene between the proud queen and the enthusiastic young lover, who knew better than anyone that he had found a rare and perfect treasure. But he left the royal presence greatly upset, though his resolution was not shaken in the slightest, for he meant to marry Louisa Fairbrother even if the world combined against him. And he soon did. The marriage was naturally a quiet one, and there were very few persons present at the ceremony. London society pretended to be scandalised by the event. Several lords and dowagers of doubtful morals held their noses in the air and sniffed. After all, the duke might have gone to them for a bride, and not to the daughter of a man in humble circumstances. His choice was an insult to their caste. It was jealousy, of course, that caused them to talk of boycotting the duke's wife, and their oft-expressed opinion that he would desert her within a few years was a case of "the wish being father to the thought." Had the marriage taken place even thirty years later than it did it is more than likely that the bride would have assumed her husband's rank, but in 1840 public opinion was not strong enough to emphasise the absurdity of the young wife calling herself Mrs. Fitzgeorge and beginning her new life in a house in Mayfair which was not the official home of her husband. The modest house in Queen Street was, however, his regular abode, and it was there that he passed the greater part of his life, and it was there that his three sons were born.'**

*Prince George was Queen Victoria's heir because, at that time, she had no children (her first child, Victoria, was born on 21/11/1840) and, assuming that Queen Victoria would outlive her uncles (the Dukes of Cumberland, Sussex and Cambridge) Prince George would have succeeded to the throne, in the absence of any children of Queen Victoria.

**This is important for establishing cohabitation before the birth of the first child. See below concerning cohabitation and the presumption of marriage.

If this account is factually correct, and, unfortunately, Kingston does not give his sources (presumably because he was not writing for an academic audience), then Prince George, as he then was (he did not succeed to the Dukedom until 1850), (1) did ask for Queen Victoria's permission to marry Sarah Fairbrother in 1840 and (2) married Sarah Fairbrother in 1840. My reading of the situation is as follows:

  • In 1840 the Duke (then 'Prince George') asked Queen Victoria for permission to marry Sarah Fairbrother.
  • Queen Victoria refused to give permission because this would have meant that an actress would have become a royal duchess and wife of the then heir to the throne.
  • In spite of this refusal, Prince George married Sarah Fairbrother in 1840 in a private ceremony, as Kingston describes. We have no reason to doubt his account and it is hard to believe that he would have entirely invented a marriage in 1840 that never happened.
  • In 1847, after the Prince had reached the age of 25 (when, under the Royal Marriages Act 1772, he could marry without the Queen's permission, subject to giving proper notice to the Privy Council), Prince George and Sarah Fairbrother went through a second marriage ceremony at St. John's, Clerkenwell. I believe that they did this in case their 1840 marriage was illegal under the 1772 Act. They may not have been sure that the 1847 marriage was legal either but, Prince George having reached the age of 25, they may have thought that it was more likely to be legal than the 1840 marriage. It was, apparently, Sarah Fairbrother who instigated the 1847 marriage and it is understandable that she would have taken any step which might improve her own security and the security of her children by Prince George.

On this basis then, in 1847 Prince George did meet the conditions for a valid marriage under the Act even if the Farran exemption did not apply (which we know it did); namely, (1) he had reached the age of 25, (2) he had previously sought permission and had been refused, (3) he had given notice to the Privy Council because he gave notice to Queen Victoria in 1840, she being the Head of the Privy Council (Prince George cannot be held responsible for the Queen's failure to record this fact in the books of the Privy Council, as required by the Act) and (4) the notice having been given in 1840, he had waited at least 12 months before the marriage ceremony in 1847. On this basis, the marriage in 1847 was valid even if the Farran exemption did not apply to Prince George as the descendant of a British princess who had married into a foreign family. Of course, given that the Farran exemption did, in fact, apply, the second marriage ceremony in 1847 was actually void, because Prince George and Sarah Fairbrother had already legally married in 1840. Note also that the Act does not say that a person has to reach the age of 25 and then ask permission to marry; it refers to a person reaching the age of 25 and persisting in a resolution to marry in spite of permission having been previously refused. This is exactly the situation in the case of Prince George and Sarah Fairbrother.

An equitable remedy to save the legality of the marriage and the legitimacy of the children

It is also necessary to consider the point that if the Duke and Sarah Fairbrother delayed their marriage because they were falsely led to believe (either by the state directly or by the state's reckless failure to properly clarify the matter*) that they could not legally do so, then the state committed a wrong which, in effect, led to the illegitimacy of the two eldest of their three children. Is it just that there should be no remedy for this wrong-doing, in terms of legitimizing their two illegitimate children? In short, should the wrong-doer (the state) be able to profit from its own wrong-doing (by denying otherwise legitimate rights to those children; their legal status as legitimate children)? This is exactly the sort of injustice that courts of equity exist to deal with.

*Reckless failure in this case means failing to do something without reasonable excuse. The reckless making of a false representation (even by omission; that is, failure to make something clear) that causes a person to suffer a loss amounts to fraud, so there is a strong argument that the state acted fraudulently.

In any event, even ignoring the 1840 marriage described above, one can only conclude that the Duke and Sarah Fairbrother would have married in or about 1843 (or earlier), if they did not actually do so, had it not been for their mistaken belief that they required the Queen's consent to marry. St. Aubyn says (p. 30): 'Even before he met his future wife, Prince George made no secret of his views about marriage. He believed, reasonably enough, that 'arranged marriages were doomed to failure.' He asserted that he would wed whom he pleased, if necessary in defiance of the Royal Marriages Act 1772...' In the light of such views, it becomes clear that the only reason the Duke would have delayed his marriage to Sarah Fairbrother was because of the potential consequences under criminal law for anyone who, contrary to the Act, took part in a marriage ceremony. It is probable that two equitable maxims will apply here: (1) 'Equity will not suffer a wrong to be without a remedy' and (2) 'Equity sees as done that which ought to be done' (that is, the marriage). Even if the marriage did not take place until 1847 or 1854, it is clear that the Duke and Sarah Fairbrother intended to enter into a contract (a marriage contract in this case) and regarded themselves as having done so, to all intents and purposes, but that they did not do so (if they did not do so) until a later date because of an error of understanding of the law not of their own making (they erroneously believed that they could not marry); an error which can be clearly laid at the feet of the state. Perhaps these maxims would not be applied, but it is clear to anyone that, in all justice, they should be. So, while the evidence might not be sufficient to establish an actual date of marriage before 1847, under the rules of equity, a court should recognize (1) the fact of the marriage before 1847 and (2) the legitimacy of the children.

See also Chief Adjudication Officer v Bath [1999] EWCA Civ 3008 below, at 22, where reference is made to requirements for a valid marriage ceremony not being observed due to a mistake. Clearly, if a ceremony that is invalid from mistake will not prevent a marriage being presumed, failure to go through a ceremony at all as a result of a mistake (as to the law or otherwise) will not prevent a marriage being presumed. Thus, the equitable maxim that 'Equity sees as done that which ought to be done' dovetails neatly with the presumption of marriage at common law (described below)

Cohabitation and presumed marriage in law

Co-habitation is prima facie evidence of a valid marriage and the presumption may prevail although evidence is offered of the invalidity of a ceremony actually gone through by the parties (Halsbury, 'Laws of England', Butterworth, London, 1909, Vol. 13, p. 444). Further, 'Where a man and a woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, though there may be no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary.' (Halsbury, 'Laws of England', Butterworth, London, 1909, Vol. 16, p. 309). See also A-M v A-M [2001] 2 FLR 6 where it was said at 34: 'The rule is well established that the law will wherever possible presume a lawful basis for long cohabitation between man and woman in the capacity of husband and wife. The rule is conveniently put in Rayden and Jackson’s Law and Practice in Divorce and Family Matters (Butterworths, 17th edn, 1997) at 4.11 thus: ‘Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, though there may be no positive evidence of any marriage having taken place, particularly where the relevant facts have occurred outside the jurisdiction; and this presumption can be rebutted only by strong and weighty evidence to the contrary.’ See also JH (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 109 at 11 and MA v JA [2012] EWHC 2219 (Fam).

More relevant is the case of Chief Adjudication Officer v Bath [1999] EWCA Civ 3008 where the words of the Social Security Commissioner were quoted at 13:

"It should be remarked that if a person is able to have a marriage presumed where there has been no ceremony at all (paragraph 992), it would hardly be equitable that a person who has gone through a bona fide ceremony thought to be a marriage (and entered into long cohabitation on the strength of it) should be in a worse position. The legal position must in my view be this. First one asks whether or not a particular ceremony can be presumed to be have been a valid marriage. If it is decided that it cannot be so presumed, then one treats the case thereafter as if there has been no ceremony at all and looks at the remainder of the facts to see whether there can be presumption from cohabitation without ceremony. If there has been a long `monogamous' cohabitation with nothing to cast any doubt on the facts of the situation (i.e. the strong and weighty evidence to the contrary to which Halsbury refers), then the fact that there may have been an invalid ceremony in the first place does not in my view prevent there being a presumption of marriage from the facts themselves." (paragraph 17).

And at 22:

'The presumption was supplied by the House of Lords in a Scottish Case, Captain de Thoern v. A. - G (1876) 1 App. Cas. 686, where the marriage in 1862 was invalid, not because of any defect in form or as to any statutory requirement, but because the husband was not finally divorced from his previous wife. This was because the time for appealing from the divorce decree had not expired and both parties honestly believed that there was no obstacle to their union. The husband died 5 years later, and there were three sons of the marriage (one was born posthumously) and in 1872 the sons asked for a declaration of their own legitimacy. The Lord Chancellor, Lord Cairns, held that there "was ample ground for presuming, according to the law of Scotland, that marriage by consent of which cohabitation with habit and repute is evidence" (p.689). He then rejected the submission that such consent could not be inferred in the circumstances of that case because the parties were under the impression that the ceremony of marriage was a valid ceremony, therefore the need for a fresh contract did not arise. He referred to two authorities, Piers v. Piers (above) where "It was held in a most striking way as a general rule that the presumption of marriage is not the same as the presumption raised with regard to other facts, which may be presumed either the one-way or the other; that the presumption of marriage is something much stronger, and that from cohabitation with reputation a marriage is presumed unless there is the strong and cogent evidence to the contrary" (p.689-690). 23. The second case was Breadalbane [1866] L.R.2 H.L.S. 269 where "the presumption was held to be one that not only might be drawn but ought to be drawn from the cohabitation with habit and repute, although in that case the cohabitation commenced with the ceremony of marriage which not only was invalid by reason of the real husband of the woman being alive at the time, but was known to both parties to be invalid". In that case, Lord Westbury had said :-

"There is nothing to warrant the proposition that the subsequent conduct of the parties shall be rendered ineffectual to prove marriage by reason of the existence at a previous period of some bar to the interchange of consent. It would be very unfortunate if it were so. Marriage may be contracted between parties in a foreign land where certain observations are required which from ignorance or mistake may not have been fulfilled ..... The parties having cohabited on the strength of an imperfect celebration, may afterwards come to Scotland and reside there for years, continuing the same course of life ..... I think a sounder rule and principle of law will be that you must infer the consent to have been given [the] first moment when you find the parties able to enter into the contract" (p.691).'

This is a House of Lords decision and so binding on all other courts. Though a Scottish case, the law as to presumption of marriage based on cohabitation seems to be the same as in England.

From this it is clear that:

  • The Duke and Sarah Fairbrother cannot be in a worse position from having gone through a marriage ceremony in 1847 (if they did so), invalid or not, than if they had gone through no ceremony at all. The same applies to their first two children (born before 1847), who clearly cannot be made illegitimate on the basis of the 1847 ceremony; that is, they cannot be in a worse position than if there had been no ceremony at all - in which case the marriage will be presumed from the start of their co-habitation before the birth of the first child.
  • The presumption of marriage on the basis of cohabitation not only can be made but must be made, even where there is a marriage ceremony known by both the parties to be invalid.
  • The marriage will be presumed from the first moment the parties are able to give consent.
  • Children or remoter descendants can ask for a declaration of legitimacy based on the presumed marriage.

It seems to me that not just children and descendants but also collateral descendants would have sufficient standing in law* to seek a declaration of legitimacy. See The Plantagenet Alliance Ltd, R (On the Application Of) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin) at 14 where a 17th great-nephew of Richard III (so not a direct descendant) and others with a similar relationship were considered to have sufficient legal standing to apply for a judicial review. Thus, Rosa Baring (1854-1927) married George FitzGeorge (1843-1907), the supposedly illegitimate son of the 2nd Duke. She was a daughter of Elizabeth Hammersley (1825-1897), so descendants of Elizabeth Hammersley's brother, Hugh Hammersley (1819-1882), would, it seems to me, have sufficient legal interest in the legitimacy of George FitzGeorge because it affects the legal status of a collateral descendant of the Hammersley family; George FitzGeorge's wife, Rosa Baring. And not only in the legitimacy of her husband but also, as a consequence, in the question of whether or not she (Rosa Baring) was the Duchess of Cambridge and their children in the line of succession to the throne.

*It seems to me that this would be done via an application under s.55 Family Law Act 1986. s.55(1) states: 'Subject to the following provisions of this section, any person may apply to the High Court or a county court for one or more of the following declarations in relation to a marriage specified in the application, that is to say - (a) a declaration that the marriage was at its inception a valid marriage; (b) a declaration that the marriage subsisted on a date specified in the application;...' s.55(3) states: 'Where an application under subsection (1) above is made to a court by any person other than a party to the marriage to which the application relates, the court shall refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.'

With regard to the issue of 'sufficient interest', see The Queen v. Inland Revenue Commissions, ex parte National Federation of Self-Employed and Small Businesses Ltd. (1982) AC 617 where it was said, in the context of judicial review (mandamus): 'Lord Parker goes on to the next page where his final views on the case are expressed, and he says: “Without referring to the authorities, it is sufficient, I think, to refer to a passage, dealing with Crown proceedings, in Halsbury’s Laws of England,3rd edn (1955), vol 11, p 105, para 196: ‘But the mere fact that a person is interested in the performance of a duty as a member of a class of persons, all of whom may be regarded as equally interested, but himself having no particular ground for claiming performance, or that he has some ulterior purpose to serve, but no immediate interest on his own or any other person’s behalf, will not be sufficient grounds for granting a mandamus.”' It seems then that an interest can arise where one person has an interest on behalf of another person, presumably including a group of people. Such a group of people would seem to include the public at large. In this context see Walton v The Scottish Ministers (Scotland) (Rev 1) [2012] UKSC 44 at 82 to 96, including 94 where it was said (again, in a judicial review context): 'In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority's violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.' This makes the point that while a mere busybody will not have a sufficient interest, a person with no more interest than other members of the public will have sufficient interest if rejecting his interest as a 'mere member of the public' would mean that the matter would not be brought before a court at all. In this context, let us assume that there is one person who is directly affected by some matter but, for some reason, he does not wish to take the matter to court. Is it right that one person (A) should be allowed to prevent a matter coming before the court which would (but for person A) come before the court on the application of a member of the public with no specific interest, on the basis that if that member of the public were not allowed to bring the matter to court, the matter would not come before the court at all? But, of course, a collateral relation, being a blood relation, has a greater interest in this particular matter than a member of the general public. A blood relation (certainly a close blood realtion) falls within the degree of foreseeability referred to (in relation to the tort of negligence) in Donaghue v Stevenson (1932) as 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.' Where the act (or outcome) is the effective bastardization of a person, the blood relatives of that person's spouse will clearly be affected; the whole family is tarred by such a thing, potentially for generations to come. On the other hand, George FitzGeorge was, if legitimate, 8th in line to the throne at birth, as follows, as well as heir to the Dukedom of Cambridge, and George FitzGeorge's wife, Rosa Baring, would have been Duchess of Cambridge, as opposed to being seen as the social climbing wife of a bastard socially excluded by the royal family:

1. Prince Albert (b 1841), son of Queen Victoria
2. Princess Victoria (b 1840), daughter of Queen Victoria
3. Princess Alice (b 1843), daughter of Queen Victoria
4. Ernest Augustus, King of Hanover and Duke of Cumberland (b 1771), son of George III
5. Prince George of Hanover (b 1819), son of 4
6. Prince Adolphus, Duke of Cambridge (b 1774), son of George III
7. Prince George (b 1819), son of 6
8. George FitzGeorge (b 1843), son of 7

Since we know that the Farran exemption did apply in this case, it is clear that Prince George and Sarah Fairbrother were free to marry all along; in other words, their legal position was the same as any other couple. Based on their cohabitation, the law will (as it would for any other couple) assume a legal marriage between them (a mutual agreement to live as husband and wife) from the start of their cohabitation (cohabitation logically follows an agreement to cohabit - live as husband and wife - so the agreement must logically precede the cohabitation), which was before any of their three children were born. The 1847 marriage is not strong evidence of the couple not being married before 1847; it is strong evidence that they were concerned that their earlier marriage, as described by Charles Kingston in his 'Famous morganatic marriages' (London, Stanley Paul, 1919), might be illegal or that they believed that earlier marriage actually was illegal. So the evidence we have is:

  • A presumed marriage based on cohabitation from before the birth of their first child.
  • Evidence of an actual marriage in 1840 (before the birth of the first child).
  • Evidence that the couple were married by 1844 (Sarah Fairbrother's reference to Prince George as 'my dear husband' in that year) and, logically, before the Prince departed for Corfu on 27/8/1843, given that he did not return to the country until 1845, according to St. Aubyn (p. 41).
  • Evidence of an actual marriage in 1847 which the circumstances (including the three preceding items) naturally lead us to believe was undertaken because of concerns about the legality of the earlier marriage.

Note that the fact that the Duke of Cambridge had his official residence at Gloucester House, Piccadilly (demolished in 1906 and now the site of the Hard Rock Café - the building is still called Gloucester House), does not mean that he was not co-habiting (living as man and wife) with Sarah Fairbrother at her Queen Street house (400m in a straight line from Gloucester House and a 600m walk). It is clear that the Duke was, in effect, required to have an official residence to reflect his position as a royal duke and commander-in-chief of the armed forces. A husband's job, such as being an airline pilot, a ship's captain, a soldier or a deep sea fisherman, might require frequent and extensive absence from the marital home but one cannot say that a couple are not living as husband and wife for that reason. Looking at the matter from the other way round, one needs to ask why Sarah Fairbrother did not live with the Duke at Gloucester House. This was clearly because the social attitudes and practical restrictions of the time prevented her from doing so. In other words, the Duke and Sarah Fairbrother lived together as man and wife to the maximum extent permitted to them by their circumstances (he visited her every day and did stay there as well). It is clear that they should not be prejudiced by the existence of social restrictions which were imposed on them and for which they were not responsible. In addition, the essential element of 'living together as man and wife' is the exclusive, marital and family nature of the relationship (together with the public repute of such a relationship) rather than the extent to which a couple share an abode. If married couples can have two separate residences and still be married (such as where the wife lives in one country and the husband works in another and visits his wife at weekends), why should a different standard be demanded of cohabiting couples in order for them to be considered married? The same argument applies to mistresses; a married man can have a mistress and still regard himself (and be regarded) as married - including by his wife. The same applies to a cohabiting couple. On what grounds can we demand that such couples should adhere to a different standard? What is good for the goose...

Gloucester House, Piccadilly (The Illustrated London News, 9 May 1857). Demolished in 1906 and replaced with a block of flats called Gloucester House (the Hard Rock Café is on the ground floor).

Conclusion

It therefore seems to me that, in accordance with the well-established legal rule relating to the presumption of marriage, the law would either presume a marriage between Prince George and Sarah Fairbrother in 1840 or thereabouts (but, in any event, before the birth of their first child) on the basis of their cohabitation or, failing which, equity would provide a remedy for the fact that they intended to marry, considered themselves to be married, lived as man and wife, and would have married in 1840 or thereabouts (if, in fact, they did not marry at that time) but for their mistaken understanding of the law; a mistaken understanding that seems to have been shared by most people and for which neither they nor, in particular, their children or their descendants can be held responsible or for which they should have suffered in the past or should suffer in the future.

Postscript - Never illegitimate

It is important here to recognize the difference between a court legitimizing an illegitimate child (a person who was actually illegitimate) and a court recognizing the fact that a child was, in fact, never illegitimate. Where a court, say, orders a person to pay a sum in respect of a breach of contract, it is not creating the liability to pay because the liability already exists and arose when the contract was breached; so the court is merely recognizing and enforcing an obligation to pay which already exists. In the current circumstances, a court would not be making the marriage valid and the children legitimate from that point in time onwards, it would merely be recognizing that a valid marriage always existed in law and that the children were therefore legitimate; that is, they were never illegitimate. The effect of recognizing that the parents were validly married and that the children were always legitimate means not only that Sarah Fairbrother always was legally the Duchess of Cambridge, but that the Dukedom of Cambridge did, in fact, pass (not 'would have passed') to their heirs. It also means that all the children and their legitimate heirs are in the line of succession to the throne (being 774th in line onwards, it seems, as per the list 'Persons eligible to succeed to the British Throne as of 1 Jan 2011' at http://www.wargs.com/essays/succession/2011.html).

Her Royal Highness Princess Sarah Louisa Cambridge née Fairbrother (1816-1890), Duchess of Cambridge - beautiful and royal and surprisingly mild in the face of the insolent conduct of her husband's relations. In short, a true lady. She was described as 'the most lovely woman of her time' (Frederic Boase, 'Modern English Biography', 1965, Vol. V, p.302).

The woman who would have been Queen

David Wilson, in his acclaimed and authoritative book 'The Victorians' (New York, W. W. Norton & Co. Inc., 2003), firmly expresses the view (p. 25-26) that Queen Victoria (1819-1901) was not the daughter of her supposed father, the Duke of Kent (1767-1820), but was the illegitimate daughter of the Duchess of Kent by Sir John Conroy (1786-1854), her comptroller. This view is based partly on the fact that Victoria carried the haemophilia gene and that none of her ancestors are known to have done so. In addition, she did not carry (or pass on) porphyria, a disease which was, or appears to have been, carried by the House of Hanover. Further, the Duke of Wellington 'supposed' that Conroy and the Duchess were lovers and Victoria herself was reported to have seen the pair 'in some sort of intimate situation'. Further, Roger Fulford, in his book 'Royal Dukes', quotes (p. 304) Greville (the diarist) saying 'his [The Prince of Wales] own grandfather [The Duke of Kent] was by far the worst of the family, and it will be fortunate if no portion of that blood is eventually found flowing in his veins and tainting his disposition.' This makes it quite clear that there was, at the very least, speculation about Victoria's legitimacy at the time. Interestingly, Wikipedia (https://en.wikipedia.org/wiki/Charles_Greville_(diarist)) states 'Queen Victoria wrote that she was "horrified and indignant at this dreadful and really scandalous book. Mr Greville's indiscretion, indelicacy, ingratitude, betrayal of confidence and shameful disloyalty towards his Sovereign make it very important that the book should be severely censored and discredited".' But she did not say that what he wrote was untrue. See also https://en.wikipedia.org/wiki/Legitimacy_of_Queen_Victoria, where the arguments on both sides are considered.

In his 'Royal Dukes' (Penguin, 2000, p. 198) Roger Fulford writes that the Duke of Kent, following his marriage to Princess Victoria of Saxe-Coburg-Saalfeld in 1818: 'borrowed £10,000 and ordered a small army of English artisans to be sent out to Amorbach to transform the castle into a place fit for a Prince of England. The workmen had just begun to pull down and build up, to enlarge and embellish, when the Duchess announced that she was pregnant. The Duke had no money, but he was determined to return to England. At about the same time it was announced that the Duchesses of Clarence and Cambridge would await their lyings-in in Hanover, but although two Kings of England, Geroge I and George II, had been born in Hanover, the Duke made up his mind that nothing but London would do for his child.' The Duke clearly started work on the castle with the intention and expectation of living there with his wife but this can only have been because he was not expecting his wife to have a child at that time, because if he had been intending and expecting to have a child then he would not have started such significant work on the castle (given his reaction to the announcement of the pregnancy). Once in London it would be inconceivable that they should ever move back to Amorbach, partly because the child would be heir presumptive to the throne and partly because the Duke would only have received an enhanced parliamentary allowance and payment of his very large debts on condition that he and his family remained in England. Parliament would not have approved of the heir presumptive being brought up in a foreign country. We can only conclude therefore that the Duchess of Kent's announcement of her pregnancy was a complete surprise to the Duke. The commencement of significant work on the castle cannot be squared with an intention and expectation of having a child at an early stage of the marriage. Put it this way. Having a child would have meant living permanently in London or its environs; the building works on the castle of Amorbach meant that the Duke was intending to live there; he cannot therefore have been expecting to have a child, certainly not in the short term; that is, for some years. Why commence expensive and extensive works on the castle otherwise?

The arguments put forward by the proponents of Victoria's legitimacy have become increasingly contradictory. With regard to porphyria, they argue, on the one hand, that there is no firm evidence of it in the family before Victoria (Peters, Timothy J.; Wilkinson, D. (2010), 'King George III and porphyria: a clinical re-examination of the historical evidence', History of Psychiatry 21 (1): 3–19) and, on the other, that there is conclusive proof of it afterwards (in Prince William of Gloucester (1941-1972), as per Professor John C. G. Rohl, Dr. Martin Warren and Professor David Hunt in 'Purple Secret', London, Bantam Press, 1998). But if the condition did not exist in the family before Victoria, how can there be conclusive proof of it in her family afterwards? With regard to haemophilia, they argue, on the one hand, that it is 'almost certain' that it was a spontaneous genetic mutation (Professor S. Jones, 'In the blood: God, Genes and Destiny', London, Harper Collins, 1996) and, on the other, that there is evidence of the condition in the ancestors of the Duchess of Kent (Charlotte Zeepvat, 'Queen Victoria's Youngest Son: The Untold Story of Prince Leopold', Sutton Publishing, 1998*). But if the condition was present in the Duchess' family beforehand, how can it be a spontaneous genetic mutation? It's all rather desperate.

*She found (p. 268) a number of boys who died young for unknown reasons, but only one adult who could have had haemophilia, and that was Heinrich LI Reuss-Ebersdorf, but she says 'There is no evidence that he had haemophilia...'

The ludicrous nature of the arguments of the pro-legitimacy 'side' is clearly demonstrated by the Wikipedia article on Princess Victoria of Saxe-Coburg-Saalfeld (accessed 10/6/2016), Queen Victoria's mother, which says: 'Actual evidence to support this theory [that the condition was inherited) has not arisen, and haemophilia occurs spontaneously through mutation in at least 30% of cases.' But, of course, if there is a 30% probability of spontaneous mutation then there is a 70% probability of non-spontaneous (that is, inherited) mutation. So the statement that there is no evidence to support the inherited haemophilia argument contradicts itself in the space of one sentence; it is complete nonsense. If you can use a 30% probability of outcome A happening as evidence, you can use the corresponding 70% probability of outcome A not happening as evidence.

The arguments of proponents of Victoria's legitimacy even extend to denying the existence of the evidence. For instance, in his 'Royal Mistresses and Bastards' (Self-published, London, 2007), the genealogist Anthony Camp states (p. 288), in relation to David Wilson's allegation of an affair between the Duchess of Kent and Sir John Conroy, that this is 'a piece of fantasy for which there is no evidence'. But the evidence cited by David Wilson came from Victoria herself, who caught the Duchess and Conroy in an 'intimate situation', and was sufficient to lead no less a person than the Duke of Wellington to suppose that there had been an affair. Anthony Camp has declined to correct this statement.

What we can say with certainty is that, in any given case of haemophilia, there is a 70% probability (or thereabouts) that the condition was inherited ('Haemophilia B (Factor IX)', National Haemophilia Foundation, 2006) and that, in any one generation, there is between a 1:25,000 and a 1:100,000 chance of a genetic mutation giving rise to the condition. Long odds indeed. This means that if a court had to rule on the issue on the basis of the existence of the condition alone, it would be bound to conclude, on the balance of probabilities (the standard of proof used in civil courts), that the condition was inherited and did not arise spontaneously. Ignoring the porphyria issue then, given that there is, it appears, doubt that George III even had the condition, the evidence relating to haemophilia, being the existence of the condition in Victoria's descendants combined with the absence of the condition in the ancestors of either the Duke or Duchess (the 'evidence', such as it is, is speculative, being a number of infant deaths, which were hardly uncommon in those days), can only lead us to one conclusion; namely that Queen Victoria was illegitimate. On top of this, we have the evidence of an affair between Conroy and the Duchess of Kent; evidence which the Duke of Wellington, a great admirer of the royal family, would have firmly dismissed had he not considered it to be persuasive.

In this context note that s.26 Family Law Reform Act 1969 states that the presumption of paternity can be rebutted upon the balance of probabilities,* which means, according to Lord Reid in S v S, W v Official Solicitor (or W) [1972] AC 24 at 41, that even weak evidence must prevail if there is no other evidence to counterbalance it and, in the light of the subsequent House of Lords decision in Re H (Minors) (Sexual Abuse: Standard of proof) [1996] AC 563, this would seem to be the current position. (Professor N Lowe, Professor of Law, 'The Establishment of Paternity under English Law', p. 88). See also Halsbury's 'The Laws of England', Butterworth, London, 1908, Vol. II, p. 428 et seq. concerning the law before 1969. But a 70% probability of inheritance of a condition is not 'weak evidence' in any circumstances.

*s.26 Family Law Reform Act 1969 states: 'Any presumption of law as to the legitimacy or illegitimacy of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable than not that that person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption.'

Under the old Common Law rules which applied before the passing of the Family Law Reform Act 1969, the presumption of paternity could only be rebutted by evidence which proved the matter beyond reasonable doubt; that is, in effect, beyond 90% certainty, which is the criminal standard of proof. A child born in wedlock was therefore presumed to be the legal issue of the wife by the husband even if unfaithfulness on her part could be proved, unless non-access of the husband to the wife could be established beyond reasonable doubt, either as a matter of fact (such as where he was abroad at the time) or, failing that, as a matter of moral certainty (such as where there was a repugnance on the part of the wife for the husband) and subject to the rules of evidence then applying. Essentially, it had to be proved beyond reasonable doubt that it was not possible for the husband to be the father of the child. But the situation has changed. In H & A (Children), Re [2002] EWCA Civ 383 it was said at 30: 'But as science has hastened on and as more and more children are born out of marriage it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference.' Thus, today, if the matter were to come before a court, resolution of the issue would require scientific evidence, such as evidence of an inherited condition like haemophilia amongst descendants but not amongst ancestors, and the standard of proof would be the balance of probabilities (more than 50% probability).* Critically, the Court of Appeal ruled, in H & A (Children), Re [2002] EWCA Civ 383, that paternity cannot be proved by inference. This means that, say, evidence that the Duke of Kent went around saying 'Look at my beautiful daughter Victoria!' would be inadmissible, because we can only infer from such evidence that Victoria was actually his daughter. So, what evidence are we left with then? On the one side, we have a scientifically established 70% probability that the condition was inherited (together with an absence of any evidence of the condition in the ancestors of the purported parents), while, on the other side, we have no scientific evidence at all (and, according to the Court of Appeal, we are not allowed to rely on presumption or inference). In such circumstances, the verdict of the court is obvious and, more importantly, unavoidable.

*In B (Children), Re [2008] UKHL 35 (a House of Lords case binding on all courts) at 4 to 16 and 62 to 73 it was made clear that the standard of proof in civil proceedings is the balance of probabilities and that this is not affected by the potentially serious consequences of the court's decision. The only circumstances in which the criminal standard of proof could be applied in civil proceedings is where a criminal sanction could result from those proceedings; that is, where the outcome is designed to punish or deter. Baroness Hale of Richmond said at 70: 'Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.' But even the House of Lords cannot overrule a statutory provision (s.26 Family Law Reform Act 1969), so the standard that applies in proceedings under that section is the balance of probabilities.

A court can order blood tests under s.20 Family Law Reform Act 1969 and can make appropriate inferences of fact in the event of a refusal.

If Victoria was illegitimate, as Wilson says, then, on the death of King William IV in 1837, the throne should have passed to the next son of George III living at that date; that is, Prince Ernest Augustus (1771-1851), Duke of Cumberland and King of Hanover from 1837 (Hanover was a male fief under Salic law and so could not pass to a woman). But Prince Ernest Augustus was considered to be a completely unsuitable candidate for the throne. Apart from being extremely unpopular (hated even) for his political views, he had been accused of one murder (Joseph Sellis in 1810), of political corruption (Weymouth parliamentary election in 1813), of sexual assault (Lady Lyndhurst in 1829), of being responsible for the suicide of a man (Lord Graves in 1830) following the attempted seduction of his wife, of possibly raping his own sister (Princess Sophia (1777-1848)), who subsequently gave birth to an illegitimate child,* and even of treason (See 'The Cumberland Plot', New Zealand Tablet, Volume XXIX, Issue 5, 31 January 1901, p. 3 concerning the Orange Lodge affair of 1836. To endeavour to deprive or hinder the next-in-line to the throne was definitely treason under s.6 Treason Act 1702.). If Prince Ernest Augustus had been passed over by some constitutional manipulation (a triviality for the British establishment - look what they did to Edward VIII), then the throne would have passed to the next brother, Prince Augustus Frederick (1773-1843), Duke of Sussex, whose marriage to Lady Cecilia Buggin in 1831 was childless.

*Even if the child (Thomas Garth (1800-1873)) was not the child of the Duke of Cumberland, there appears to be no doubt whatsoever that the Duke of Cumberland did attempt to rape his own sister. Charles Frederick Williams, a barrister, wrote to Lord Wynford, a friend of the Duke of Cumberland, in May or June 1830: 'Several of the letters convey grave and alarming charges against HRH [the Duke of Cumberland] in the most unequivocal terms ... An accusation by a Sister that Her Own Brother had more than once attempted to violate her Person.' (Elizabeth Longford, 'Wellington: pillar of state', London, Weidenfeld and Nicholson, 1972, p. 210-212). This is attempted rape. The moral standards of the British political class might be low but I do not believe for one second that such a person would have been allowed to succeed to the throne.

It is therefore clear that, in such circumstances, Prince Adolphus (1774-1850), 1st Duke of Cambridge, would have inherited the throne on the death of Prince Augustus Frederick, Duke of Sussex, in 1843, and that the throne would have passed to his son, Prince George (1819-1904), 2nd Duke of Cambridge, on the 1st Duke's death in 1850. Sarah Fairbrother would then have become Queen. If Prince George (1819-1904) was rightful (de jure) King then his son, George FitzGeorge (1843-1907) was rightful (de jure) King from 1904, assuming his legitimacy (see above), and his wife, Rosa Baring (1854-1927), was rightful (de jure) Queen from that date. George FitzGeorge would have been succeeded by his son, George William Frederick FitzGeorge (1892-1960), who died without issue, who would have been succeeded by his elder sister, Mabel Iris FitzGeorge (1886-1976), who would have been succeeded by her only child, General Sir Robert George Victor FitzGeorge-Balfour (1913-1994), who would have been succeeded by his son, Robert Victor FitzGeorge-Balfour (b 1951), whose heir is George Augustus FitzGeorge-Balfour (b 1979).

General Sir Robert George Victor FitzGeorge-Balfour (1913-1994), Vice-Chief of the Imperial General Staff and de jure King George IX (given the illegitimacy of Queen Victoria and assuming the exclusion of the Cumberland branch on the grounds of treason in the Orange Lodge affair of 1836).

Whatever the truth of the matter, the royal family (descendants of Queen Victoria) showed an extraordinary determination to marry into the Cambridge line, as evidenced by the fact that Princess Mary of Teck (1867-1953), later Queen as wife of King George V of course, was successively engaged to Prince Albert Victor (1864-1892), Duke of Clarence, and, following his death in 1892, to his brother, Prince Albert Edward (1865-1936), Duke of York, later King George V. This was in spite of the fact that the royal houses of Europe would have considered any marriage into the Teck family as a mésalliance because the Duke of Teck was himself the product of a morganatic marriage and the fact that the Duke of Teck was penniless, his wife was impossibly extravagant and 'the family had more than once barely sidestepped the baillifs' (Anne Edwards, 'Matriarch', Hodder and Stoughton, London, 1984, p. 19).

If Victoria was illegitimate then the only way her heirs could have acquired some form of legitimacy was by marriage into the next legitimate royal line. As stated, the next legitimate line after that of the Duke of Cumberland (the Duke of Sussex had no legitimate children) was the line of the Duke of Cambridge. Even including the line of the Duke of Cumberland (Prince Ernest Augustus had an only son, King George V of Hanover (1819-1878)), the only woman who could have given any legitimacy to the male descendants of Queen Victoria in such circumstances was Princess Mary of Teck and, by an extraordinary coincidence, she happened to become engaged to two successive heirs to the throne (with indecent haste one might add - she got engaged to the second brother when only three months out of mourning for the first). If Queen Victoria's branch of the family had, in effect, cheated the Cambridge branch out of their (probable or possible) inheritance, then they may have felt that a marriage between the 'heir to the throne' and Princess Mary of Teck was some sort of compensation for the theft, as well as giving themselves legitimacy, and so 'killing two birds with one stone'. It was Queen Victoria herself who eagerly (in fact, desperately*) promoted the marriage of Princess Mary of Teck to the two princes successively. There was even an attempt to arrange a marriage between Victoria and Prince George, 2nd Duke of Cambridge, but his response was ''What? Marry ugly little Victoria? Never!' (Edwards, Anne, 'Matriarch', Hodder & Stoughton, p. 59). Perhaps this explains Queen Victoria's hostility to Sarah Fairbrother. Perhaps Victoria knew that Sarah Fairbrother should have been sitting on the throne as Queen in her stead, or at least had a better claim to be Queen.

*Edward, then Prince of Wales, father of Prince George, opposed the match. but Queen Victoria persevered nonetheless. She wrote to her Private Secretary, Sir Henry Ponsonby, that 'The Prince of Wales must not prevent the marriage... Something dreadful will happen if he does not marry.' (Edwards, Anne, 'Matriarch', Hodder & Stoughton, p. 62). What can this 'dreadful' consequence have been?

We can see how it might have been vitally important to the House of Saxe-Coburg and Gotha, not just to marry into the female side of the Cambridge line (Princess Mary of Teck) but also to crush the legitimacy of the male side of that line (George FitzGeorge and his brothers). In this way, Victoria's line would have almost become legitimate heirs to the throne (having excluded the Cumberland line). What went through Queen Victoria's mind when she met George FitzGeorge, then a humble Major, in 1882 when he brought dispatches to Balmoral following the battle of Tel-el-Kebir (St. Aubyn, p. 35)? Was it 'There but for the Grace of God go I'?

A relevant point is that the Act of Settlement 1701 settled the crown on the Electress Sophia of Hanover and the heirs of her body, necessarily being the heirs of her body according to law (her lawful heirs), in accordance with the presumption of legality. It follows that if a person is not the next lawful heir of the Electress Sophia, then he or she cannot succeed to the throne and that any such purported succession is void in law; that is, in law it never happened. Now, according to Halsbury's 'Laws of England' (Butterworth, London, 1909, Vol. VI, p. 363), under s.30 Interpretation Act 1889, the King (or Queen) is whoever is King (or Queen) for the time being, 'whether he be an usurper or not'. s.30 has now been replaced by s.10 Interpretation Act 1978, which states: 'In any Act a reference to the Sovereign reigning at the time of the passing of the Act is to be construed, unless the contrary intention appears, as a reference to the Sovereign for the time being.'  This effectively overrides the Act of Settlement 1701 since it says (according to Halsbury) that the lawful King or Queen is the person who happens to be occupying the throne at that point in time, regardless of whether or not he or she is the next lawful heir of the Electress Sophia. However, the Act of Settlement 1701 is a constitutional Act and therefore can only be expressly repealed, as opposed to impliedly repealed (by a later Act which contradicts it). It follows that the Interpretation Act 1978 is of no effect in this regard and cannot legitimize an otherwise illegitimate occupier of the throne. This would require express repeal of the Act of Settlement 1701. It follows that if Queen Victoria was not the legitimate issue of her father, the Duke of Kent, then neither she nor any or her successors can legitimately succeed to the throne, unless he or she is the next lawful heir by some other line of descent.

Rosa Baring apparently had an affair with Prince Adolphus (1868-1927), 2nd Duke of Teck and 1st Marquess of Cambridge, eldest son of Francis, Duke of Teck (1837-1900) and Princess Mary of Cambridge (1833-1897), by whom she had a daughter, Vera Bate Lombardi (1883-1948), who was brought up by Margaret, 1st Marchioness of Cambridge, sister-in-law of Queen Mary (Princess Mary of Teck), wife of King George V (it was a loan from Rosa Baring's father, William Baring, that allowed the Teck family to return to the UK and which therefore opened the way for Princess Mary of Teck to marry the future King George V). The fact that Vera Bate Lombardi was brought up by the royal family demonstrates conclusively that she was accepted by the royal family as a daughter of the 1st Marquess of Cambridge. Vera married, secondly, Prince Alberto Lombardi, and moved to Rome. She was suspected by the Italian government of being a spy during World War II. She was probably in touch during the war with her second cousin, Sir D'Arcy Osborne (1884-1964), later 12th Duke of Leeds, Envoy Extraordinary and Minister Plenipotentiary to the Holy See 1936-1947, who was involved in a 1940 plot to kill Hitler, running an escape organisation for Allied soldiers and Jews and intelligence gathering. Another second cousin via the Hammersleys, Sir Ronald Hugh Campbell (1883-1953), Ambassador to Portugal during World War II, was also involved in espionage (Lisbon was a hotbed of spies during the war). Vera Bate Lombardi worked with Coco Chanel and introduced her to London society, including to Hugh Grosvernor (1879-1953), 2nd Duke of Westminster, with whom Coco Chanel had a 10-year affair, and the Prince of Wales (later Edward VIII). Lombardi was the inspiration for Chanel's famous 'English Look'.

See here for the connections between the Eden, Hammersley, Poulett-Thomson and Baring families.

Coco Chanel (left) and Vera Bate Lombardi (right) visiting the Duke of Westminster's Reay
estate in Scotland in 1925 and dressed up in his clothes.

Warren House, Kingston-upon-Thames

HUGH HAMMERSLEY, banker, sometime of Sun House, Chelsea; Cromwell Gardens, London and Warren House, Kingston-upon-Thames; b 15 Mar 1819; educ Eton; Partner of Cox & Co., bankers and army agents; m 23 Jan 1856 Dulcibella Eden (d 1903), daughter of Arthur Eden (1793-1874) of Harrington Hall, Spilsby, Lincolnshire, Assistant-Comptroller of the Exchequer, see EDEN OF WINTON B., and Frances Baring (d. 1877), see NORTHBROOK B., née Poulett-Thomson, see SYDENHAM B. (Burke's 'Dormant and Extinct Peerages'); Charlotte Rosa Baring, her younger daughter by her first marriage to William Baring (1779-1820), was the 'Maud’ of Tennyson’s poem of that name (Rader, R. W. ‘Tennyson’s “Maud”: The Biographical Genesis’, UCP, 1992); d 28 Sep 1882 having had issue,

Charlotte Rosa Baring, younger daughter of William Baring (1779-1820) and Frances Poulett-Thomson (d. 1877). She was the inspiration for Tennyson's 'Maud'. The garden in that poem is the garden of Harrington Hall, Spilsby, Lincolnshire; the 'Eden where she dwelt' in Tennyson's poem 'The Gardener's Daughter'.

Dulcibella Eden (d 1903), half-sister of Charlotte Rosa Baring (above), grandmother of the 12th Duke of Leeds, great-grandmother of the 7th Duke of Sutherland.

1a Arthur Charles, banker, of Princes Gate, London; b 22 Dec 1856; educ Eton; Partner of Cox & Co., bankers and army agents; m, firstly, 2 Sep 1882 Mary Louisa (d 12 Nov 1899), daughter of Col. George Herbert Frederick Campbell (b 19 Jun 1811; d 2 Sep 1856) of Evenley Hall, Brackley, Northants, see CAWDOR E., by whom he had issue,

1b Hugh Charles; b 23 Feb 1892; educ Eton; unmarried
1b Gwendoline Mary; b 1884; m 1908 George Henry Draper Post and d 13 Jan 1948 leaving issue
2b Cynthia Edith; b 1886; d 29 Feb 1955
3b Doris Maud; b 1890; d 8 Mar 1944

He m, secondly, 15 Apr 1902 Violet Mary (b 28 Mar 1877; d 1962), daughter of William Peere Williams-Freeman (b 1834; d 1884), see WILLIAMS-FREEMAN (BLG); see the chapter on her in Diana Mosley's (née Mitford) book 'Loved Ones', Sidgwick & Jackson, 1985 (she was called 'Mrs. Ham' by the Mitford sisters) and also her portrait 'Violet Hammersley' by Philip Wilson Steer 1907 (Art Gallery of New South Wales, Australia); he d 15 Apr 1912 having had issue by her,

'Violet Hammersley' (1877-1962) (Violet Williams-Freeman) by Philip Wilson Steer (1907), (Art Gallery of New South Wales, Australia)

1b Christopher Ralph, of Wilmington, Cliff Road, Totland Bay, Isle of Wight; b 4 Jan 1903; educ Eton; m, firstly, 1931 Amelia Cowing of New York (d 1973), secondly, 1977 Mary Patterson, by whom he had no issue
2b David Frederick; b 15 Jul 1904; educ Eton; m 1932 – Martin; d 19 Apr 1945 leaving issue,

1c Patricia; b 1933

1b Monica Violet; b 28 Oct 1907; m 1932 David Dominic Stokes and had issue

2a Hugh Greenwood, banker, of Sackville St, London and The Grove, Hampstead; b 4 Jul 1858; educ Eton; Partner of Cox & Co., bankers and army agents, which became Cox's & King's in 1922, until the firm was taken over by Lloyds Bank Ltd in 1923; m, firstly, 30 Aug 1889 Mary Frances (b 1863; d 1911), see her portrait 'Mrs Hugh Hammersley' by John Singer Sargent 1892 (Metropolitan Museum of Art, New York), daughter of Gen. Owen Edward Grant and Adelaide, daughter of Gen. Sir George Powell Higginson, GCB, GCVO, KCB, Grenadier Guards, Col. of the 94th Regiment, see Lady Butler's painting 'The Roll Call' 1874 (Royal Collection), and Frances Elizabeth (d 1890), daughter of Francis Needham, 1st Earl of Kilmorey, see KILMOREY E., by whom he had issue,

'Mrs. Hugh Hammersley' (1863-1911) (Mary Frances Grant) by John Singer Sargent (Metropolitan Museum of Art, New York).

1b Eve Mary; b 1891; d 24 May 1902

He m, secondly, 11 Jan 1913 Mabel Elizabeth Lilford, by whom he had no issue, and d 6 Aug 1930. See her portrait, 'Mrs. Hugh Hammersley' (1913), by Philip Wilson Steer in the Government Art Collection.

3a Guy; b 27 Jan 1871; educ Eton
1a Margaret Dulcibella; b 1861; m 13 Jan 1883 Sydney Francis Godolphin Osborne (b 29 Mar 1835; d 9 May 1889), see 1953 edn LEEDS D., by whom she had issue three sons; Sir Francis D'Arcy Godolphin Osborne KCMG (b 16 Sep 1884; d 20 Mar 1964), 12th and last Duke of Leeds, Envoy Extraordinary and Minister Plenipotentiary to the Holy See 1936-1947, who was portrayed in the 1983 film 'The Scarlet & The Black' starring Gregory Peck; Sidney Hugh Godolphin Osborne (1887-1958); Maurice Godolphin Osborne, Capt. 3rd Battalion,
Rifle Brigade, Mentioned in Despatches (b 1889; killed in action 25 Feb 1915, buried Bailleul Communal Cemetery (Nord) (also here)); she d 22 Oct 1903

Maurice Godolphin Osborne, Capt. 3rd Battalion, Rifle Brigade, Mentioned in Despatches (b 1889; killed in action 25 Feb 1915) Maurice Godolphin Osborne (1889-1915)

Sir D'Arcy Osborne (1884-1964), 12th and last Duke of Leeds. In 1940 he took part in a plot to overthrow Hitler, involving Pope Pius XII and key German Generals, and he was actively involved in the underground escape organisation, led by Monsignor Hugh O'Flaherty, which concealed some 4000 escapees, both Allied soldiers and Jews, from the Nazis. It was mainly his efforts that prevented any large-scale Allied bombing of Rome during the invasion of Italy. Major Sam Derry, in his 'Escape Line', described meeting Sir D'Arcy Osborne in the Vatican in 1943: 'Unruffled poise... Seldom have I met any man in whom I had such immediate confidence. He welcomed us warmly, yet I found it impossible to behave with anything but strict formality. Apart from the restraining influence of my clothing [he was not used to being disguised as a monsignor] I was almost overwhelmed by an atmosphere of old-world English courtliness and grace which I had thought belonged only to the country-house parties of long ago. Sir D'Arcy was spry, trim, a young sixty, but he had spent years enough in the diplomatic service to develop an astonishing aptitude for creating around himself an aura of all that was most civilized in English life. I felt as though I had returned home after long travels, to find that royalty had come to dinner, and I had to be on my best behaviour.' After this dinner Sir D'Arcy 'offered him the command of the escape organisation'. See Chadwick, Owen, 'Britain and the Vatican During the Second World War', Cambridge Paperback Library, 1988. D'Arcy Osborne was a close life-long friend of the late Queen Mother (Dorothy Osborne, a daughter of the 10th Duke of Leeds, married the Queen Mother's brother, Patrick Bowes-Lyon, 15th Earl of Strathmore) and he was one of the few people to whom the Queen Mother went for private advice on important issues (details of their correspondence are recorded in the official biography of the Queen Mother by William Shawcross). Towards the end of his life D'Arcy Osborne became almost destitute (he had given a lot of his own money to the underground escape organisation run by O'Flaherty) and the Queen Mother helped him financially.

2a Dora Edith; b 1862; m Sir Francis Alexander Campbell (b 1852; d 1911), son of Col. George Herbert Frederick Campbell (b 19 Jun 1811; d 2 Sep 1856) of Evenley Hall, Brackley, Northants, see CAWDOR E., and had, with other issue, Ivan (b 1887) and Mabel (b 1891), an elder son, Sir Ronald Hugh Campbell, PC, GCMG (1883-1953), Ambassador to France (1939-1940) and Portugal (1940-1945), who married Helen Graham (d 1949) and had issue, with a son, Capt Robin Francis Campbell, DSO (d 1985), No. 8 (Guards) Commando (forerunner of the SAS), who lost a leg and was captured while leading 'Operation Flipper' (see here also), the commando raid of 1941 to assassinate General Rommel, a daughter, Mary Campbell (1909-1949), who married Cyril Reginald Egerton (1905-1992) and had issue, with three daughters, an only son, Francis Ronald Egerton (b 1940), 7th Duke of Sutherland, see SUTHERLAND D. Robin Campbell wrote of his time in a prisoner-of-war camp: 'It is quite impossible for the Germans to put across any Herrenvolk stuff in the face of the innocent arrogance of British soldiers, who are impenetrable to the idea of German superiority and simply think it uproariously funny. This baffles the Germans.'
3a Mabel Barbara; b 1864; m 27 Oct 1887 Walter Nassau Senior (b 16 Mar 1850; d 20 Oct 1933), barrister, of 98 Cheyne Walk, London; she d 19 Mar 1943 having had issue (see lineage of Senior above)
4a Maud Emily; b 1866; m 26 Oct 1891 Sir Henry Duff-Gordon, Bt. (b 12 Jan 1866; d 9 Jan 1953), see DUFF-GORDON Bt., and d 5 May 1951 having had issue
5a Beatrice Caroline; b 1868; m 20 Jul 1898 Philip Apsley Treherne (b 1872; d 1922) and d 1953 having had issue
6a Sylvia Katherine; b 1876

Margaret Hammersley (1861-1903), mother of Sir D'Arcy Osborne, 12th Duke of Leeds.

Maud Emily Hammersley (Lady Duff-Gordon) (1866-1951)

Mabel Barbara Hammersley (1864-1943) by Sir James Jebusa Shannon (1862–1923)

Beatrice Hammersley (1868-1953)

Sylvia Hammersley (b 1876)


Arms

Arms (of Sir Hugh Hamersley): Gules, three rams heads couped or. The arms granted to Thomas Hammersley (1747-1812) in 1803 were gules, three rams heads couped erminois.
Crest: A demi-griffin segreant or, in the dexter claw a cross-crosslet fitchee, gules.
Motto: 'Honore et amore'.


Note: Hugh Hamersley (1663-1714), Vicar of Roxby, may have been the great-grandson of Sir Hugh Hamersley (1565-1636) via his third son, William (1617-1676), rather than his grandson via Sir Hugh's second son, Francis (1613-1659), as is generally thought (Francis is often stated to have died in 1665). According to Burke's 'Landed Gentry' this William married an Elizabeth Cogan (1626-1706) in 1660 and had a son called Hugh (1663-1718, but 1646-1692 according to Boyd's 'Inhabitants of London'), ancestor of the Ducat-Hamersley family of Pyrton Manor. However, there is a record of a Hugh Hamersley who was born 25 Dec 1642 at Kencott, Oxon. Given the 1660 marriage of William and Elizabeth (which may be the wrong date), I believe that this Hugh might be the son of William (1617-1676) by an earlier marriage (i.e. before his marriage to Elizabeth Cogan) and that he (Hugh b. 1642) might have been the father of Hugh (1663-1714), ancestor of the 'London Hammersleys'. I believe that Hugh (b. 1642) may have married a Katherine Finch in Cambridge (St. Mary the Great) on 3 Dec 1662 and that this Katherine may be the Katherine who died in Roxby, Lincs. (where Hugh (1663-1714) was Vicar) in 1699. A Hugh Hamersley, son of a Katherine and Hugh Hamersley was Christened at St. Botolph Without, Aldersgate, London, on 29 Nov 1663. I believe that Hugh (b. 1642) may have married a second wife, Anne Preston (b. 1656) on 22 Dec 1671. Both of Sir Hugh's two elder sons, Sir Thomas (dsp 1651) and Francis (died without issue in 1659 according to Boyd's 'Inhabitants of London' - and his will does not mention any children), seem to have died without issue. Note that the birth date of 1646 may refer to the will of Mary Hamersley, wife of Sir Hugh, so that 1646 means 'mentioned in a will of 1646' but possibly actually born in 1642 (25 Dec) as above.


'The Descent of Hughes'

Index