This is the final post, at least for now, in a series called “A deeper look at the Will of William Henry Burke (1792-1870) ” . To re-cap slightly, my starting point for looking at William Burke was one of his sons-in-law Basil O’Bryen. Almost from the start of my research, Basil has been a source of fascination. Certainly a bigamist who abandoned his [second] wife and three children from two marriages. He appears to be fairly wealthy, though rather curiously, he seems not to be a beneficiary of his father’s will. Married at twenty-two to a woman ten years older, widowed, and remarried at the age of twenty-five. But, seemingly, well-thought of by William Henry Burke. As detailed in part four, I had gone to the National Archives to see whether Burke v. Keith could shed any light on the story. It does, and doesn’t, and here’s why.
The front page of the court case was a surprise.
1872-B-No 246 Filed 28th November 1872 pursuant to order dated 1st November 1872
In Chancery
between
William Henry Burke – plaintiff
and
Wilson Keith
Basil William O’Bryen, and Harriet Matilda, his wife
Mary Ann Burke, the wife of William Henry Burke.
and
William Donald Henry Burke
Edmund John Burke
Kate Alice Burke (spinster)
Sarah Elizabeth Burke (spinster)
Walter Keith Burke
all infants
Defendants
So Burke v. Keith and others is a case where Henry Burke is in a legal dispute with his sister, and two brothers-in-law, [Wilson Keith is Mary Ann Burke’s brother] and his wife, and children are also defendants in the case. Prior to this case, there had been the settlement of a caveat against the proof of WHB’s will by Henry Burke, and agreed in November 1870. More detail can be seen in “A deeper look at the Will of William Henry Burke (1792-1870) ” part four. Burke v. O’Bryen followed some time before August 1871, though very frustratingly I still don’t know what it was about. It is, however, safe to assume Henry Burke is still not happy, and, by 1872, Henry is back in court again. There is a reference to Burke v. O’Bryen 1871 B no 80, which he partly won, in the Burke v. Keith papers, where the Vice Chancellor Sir John Wickens “recognized his right to the residuary estate” but the order was expressly made “ subject to any arrangements the parties may have made between themselves as to the same”.
This time Henry is trying to get the trust for his wife and children set aside. To summarise some of the key parts:
William Henry Burke of 17 Newman Street, St Marylebone filed his bill of complaint in Chancery on 30th July 1872, amended 3rd October 1872. Essentially his complaint was against the trust his father set up for his daughter-in-law, and grandchildren.
“An indenture of voluntary settlement dated 6th May 1870 was made and executed between and by William Henry Burke since deceased the father of the plaintiff William Henry Burke of the one part and the said William Henry Burke the father, the defendant Harriett Matilda O’Bryen (therein called Harriett Matilda Burke), the defendant Wilson Keith, and the defendant Basil William O’Bryen on the other part as follows: – “
All their addresses are given, William and Harriett Burke are at 32 Thistle Grove, South Kensington, Wilson Keith “of Earls Court, esquire”, and Basil O’Bryen at 18 Gunter Grove, Chelsea. The settlement document was witnessed by John Roche O’Bryen at 28 Thistle Grove, and Corinne O’Bryen who was at 18 Thistle Grove on or about 6th May 1870.
The “ indenture witnesseth that in pursuance of the said recited desire on the part of the settlor and in consideration of the love and affection which the settlor has and beareth towards his daughter-in-law Mary Anne Burke, the wife of his son Henry Burke, and her issue by his son”
It’s all slightly strange, initially it seems to be WHB looking after his daughter-in-law, and some of his grandchildren. The question is why? Henry Burke was thirty-five years old, he was first a sculptor, and then set up his own firm W. H. Burke & Co., who were “at first sculptors and importers of marble and bronze before becoming one of the pioneering firms of the Victorian mosaic revival.” By 1871, he was occupying all of 17 Newman Street, just off Oxford Street ” these ‘very extensive premises’ included an octagonal modelling room and a large ‘marble yard’ extending behind the neighbours at Nos 18 and 19, reached via Newman Passage.” In the late 1850s the main premises had become the British and Foreign Marble Galleries of Edwardes, Edwardes & Co., boasting the largest stock in Europe of marble sculpture, and by 1865 were Henry’s workshops. In 1851-2, the octagon room had been used as a studio by Ford Madox Brown, and Dante Gabriel Rossetti. Henry Burke had been in partnership with the Edwardes brothers, and Alfred Edwardes was married to Henry Burke’s elder sister Elizabeth. Henry was recorded in the 1871 census as employing 28 men, and 1 boy. So he appears to have been doing quite well, so why did his father feel the need to provide for Mary Burke separately?
The settlement was arranged to pay Mary £ 300 a year in equal quarterly payments for her “sole separate and inalienable use” with a further caveat that if Henry becomes bankrupt then Mary Burke gets all the income over and above the £300 per year [using the same methodology as elsewhere in these posts, it is a modern-day equivalent of £ 224,000]. Otherwise, the rest of the income is to be invested until the youngest child is 24 or in the case of girls married. The trustees can dispose of assets as they see fit.
Henry and Mary Burke’s children were
William Donald Henry Burke , then aged 10
Edmund John Burke then aged 8
Kate Alice Burke (spinster) then aged 6
Sarah Elizabeth Burke (spinster) then aged 3
Walter Keith Burke then aged 1
and George Arthur Burke who died, aged four months, in July 1868
Henry claims that he is entitled to the residuary estate of his father, and the trust funds should be part of it because the length of the entail is so long as to make it ” void ”, and he should get the income apart from Mary’s £ 300 p.a.
This is where it all gets unbelievably frustrating. Three large archive boxes full of papers, most of which were un-related to the case, and crucially NO VERDICT.
It still sheds very little light on why twenty-two year old Basil O’Bryen was regarded as a suitable trustee. Wilson Keith, Mary Burke’s younger brother seems slightly better, but even then he’s only twenty-six. It does make one wonder if part of Henry’s case was simply pique at having to deal with two much younger trustees?
THIS IS THE LAST WILL AND TESTAMENT of me John Roche O’Bryen Esquire of Thistle Grove Brompton in the County of Middlesex Doctor of Medicine I appoint my dear wife Celia Mary O’Bryen and the Reverend Henry Hewett O’Bryen D.D. my oldest son to be Executrix and Executors and Trustees of this my Will and Guardians of my infant children during their respective minorities And I direct that my children be educated in the one Holy Catholic Church of which Pius IX is now Pope. I bequeath to my said dear wife all the wines liquors and other consumable effects which shall at my decease be in or about my dwelling house I also bequeath to my said wife the sum of one hundred pounds for her immediate occasion to be paid to her as soon as conveniently may be after my decease I devise the freehold copyhold and leasehold estates to which I shall be entitled at my decease with their appurtenants unto and to the use of my said trustees their heirs executors administrators and assigns according to the nature thereof respectively upon trust when and as my said trustees in order to effectuate any of the purposes of my Will or with a view to the advantage of my estate for the more convenient division thereof among the persons entitled thereto shall in their discretion find it necessary or expedient so to do to sell my said estates or any part thereof together or in parcels by public auction or private contract or to raise money by mortgaging in fee or for years or by charging my said estates or any part thereof and to do all acts requisite for effecting or facilitating any sale mortgage or charge pursuant to this trust I bequeath the residue of my Personal Estate and effects of every kind to which I shall be entitled at my decease unto the said Celia Mary O’Bryen and the Reverend Henry Hewett O’Bryen upon trust subject as herein after mentioned to convert into money get in and receive so much thereof as shall not consist of ready money or of such investments in stocks funds or securities (whether of the description contemplated by the trust for investment herein after contained or not) as my said trustees shall think it desirable to continue And I direct my said trustees to receive the money to arise from my said residuary personal estates and stand possessed thereof together with the stocks funds and securities to be continued as last aforesaid upon the trusts herein after declared concerning the same And as to the monies to arise from the execution of the trusts herein before contained concerning my real and residuary personal estate and not presently applicable to the purposes of my Will I direct my said trustees to invest the same in their names in or upon any of the securities herein after mentioned And I authorize them to vary and transpose at their discretion as well the stocks funds and securities whereon such investment shall be made as any stocks funds or securities which shall at my decease compose part of my personal estate for any other stocks funds or securities of the description contemplated by the preceding direction And I direct my said trustees to stand seized and possessed of my residuary real and personal estate upon the trusts herein after expressed and declared concerning the same that is to say upon trust to permit my said wife to occupy and enjoy at 28 Thistle Grove my residence aforesaid and to have the use of the furniture and other effects in and about the same including the horse and carriage during her life provided she shall so long remain my widow And upon trust to pay the net income arising from the residue of my said real and personal estate to my said dear wife Celia Mary for her life for the maintenance of herself and children and their education which I request may be of the best character in her power In the event of my said wife Celia Mary marrying again after my decease she will have the interest of her own fortune which is already settled upon her And I direct my trustees to stand possessed of the income of my residuary estate during the remainder of the life of my said wife upon trust for the equal benefit of all my children by my said wife And upon trust from and after my decease to set apart out of my residuary estate the sum of one thousand pounds or stocks or shares forming part of my residuary estate of that value at the market price of the day and to pay or transfer the same to the trustees for the time being of a certain Indenture of Settlement bearing date the thirteenth day of May one thousand eight hundred and seventy made between me of the first part my daughter Corine Margaret O’Bryen of the second part and Mrs Mary Celia O’Bryen and Miss Harriet Matilda Burke of 32 Thistle Grove aforesaid of the third part to be held by such trustees upon such and the same trusts as are declared in and by the said Indenture of the trust estate thereby settled And upon trust after the decease of my said wife Celia Mary to set apart out of my residuary estate the further sum of three thousand pounds or stocks and shares forming part of my residuary estate of that value at the market price of the day to be held by them upon trusts herein after expressed and declared for the benefit of my daughter Evelyn and her issue and to set apart in like manner the sum of two thousand pounds for each of my other children by my said wife Celia Mary living at my death And I direct that the income to arise from each said sum of three thousand pounds and the said sums of two thousand pounds and the investments thereof shall be applied to the benefit of my children respectively until they shall respectively attain the age of twenty five years when the corpus shall be paid to sons and shall be settled upon daughters in manner following that is to say Upon trust to pay the income thereof respectively to such daughter for her sole and separate use free from the control of her husbands and so that such daughters shall not have power to dispose of the income in the way of anticipation And upon trust after the decease of my said daughter in trust for all or such one or more of the child and children and remoter issue of my said daughter such remoter issue being born during the life time of my same daughter at such ages or times or age or time in such shares if more than one upon such conditions and in such manner as my same daughter shall by any deed or deeds with or without power of revocation shall appoint And in default of such appointment and so far as any such appointment shall not extend in trust for all the children of my said daughter who being a son or sons shall attain the age of twenty four years or being a daughter or daughters shall attain that age or marry under that age in equal shares and if there shall be but one such child then the whole to be in trust for such one child And subject to the payment of the several last mentioned sums be and shall stand possessed of my residuary real and personal estate in trust to pay or set apart in manner aforesaid and to transfer to the trustees of the said Indenture of Settlement of the thirteenth day of May one thousand eight hundred and seventy and to stand possessed of the ultimate residue of my estate in trust for such child or children of mine by my said wife Celia Mary as she shall by Will or deed appoint at her discretion the sons when they shall attain the age of twenty five years the daughters when they shall attain that age or marry under that age with the consent (if marrying after my death) of her or their respective guardian or guardians and if more than one in equal shares Provided always and I declare that if any child of mine for whom provision is made by this my Will shall die in my life time leaving issue in existence at my death and who being male attain the age of twenty one years or being female attain that age or marry under that age of each such child of mine so dying shall take by substitution as tenants in common in equal shares per stirpes if more than one (and so that no issue remoter than a child of such deceased child shall take except in case of the death in my life time of his her or their own parent and in the place of such parent) the provision which such child of mine would have taken under the trust in that behalf herein before declared had he or she survived but Provided always and I hereby declare that it shall be lawful for the said trustees or trustee for the time being after the death or future marriage of my said wife or during her widowhood with her consent in writing (and so that the present power may be resorted to for the purpose of making an addition to any of the respective legacies herein before bequeathed to each of my sons attaining the age of twenty five years and to each of my daughters attaining that age or marrying under that age with such consent as aforesaid and so augmenting the provision then immediately available for any such son or daughter of mine respectively) to raise any part or parts not exceeding in the whole one half of the then expectant share or presumptive share of any child under the trusts herein before declared and to apply the same for his or her advancement or benefit as the said trustees or trustee shall think fit And I hereby declare that the said trustees or trustee for the time being shall after the death or future marriage of my said wife apply the whole or such part as they or he shall think fit of the interest dividends and income of the share to which any child shall for the time being be entitled in expectancy under the trusts herein before declared for or towards his or her maintenance or education and may either themselves or himself apply the same or may pay the same to the guardian or guardians of such child for the purpose aforesaid without seeing to the application thereof and shall during such suspense of absolute vesting as aforesaid accumulate all the residue (if any) of the same interest dividends and income in the way of compound interest by investing the same and the resulting income thereof in or upon any such stocks funds shares or securities as are herein after mentioned for the benefit of the person or persons who under the trusts herein contained shall become entitled to the principal fund from which the same respectively shall have proceeded and may resort to the accumulations of any preceding year or years and apply the same for or towards the maintenance or education of the child for the time being presumptively entitled to the same in the same manner as such accumulations might have been applied had they been interest dividends or income arising from the original trust funds in the year in which they shall be so applied Provided always and I hereby declare that it shall be lawful for my trustees for the time being to defer and postpone the sale reversion and collection of the whole or any part or parts of my said real and personal estate respectively so long as to such trustees or trustee shall in their or his uncontrolled discretion deem proper but my real estate shall for the purpose of transmission be impressed with the quality of personalty from the time of my death And I empower the said trustees or trustee during such interval or postponement to manage and to let upon lease or from year to year my real and leasehold estates and to make out of the income or capital of my real and personal estate any outlay which such trustees or trustee may consider proper for improvements repairs insurance calls or shares premiums or policies or otherwise for the benefit or in respect of my real or personal estate And I declare that the net rents and profits or other income produced from every or any part of my real or personal estate previously to the conversion or collection thereof pursuant to the trusts herein before declared shall be applied in the same manner in all respects as if the same were income proceeding from such investments as are herein after directed or authorized and that the whole of the income produced from my estate (real or personal) in the actual condition or state of investment for the time being whether consisting of property or investments of an authorized or of an unauthorized description and whether of a permanent or a wasting character shall as well during the first year from my death and at all times afterwards be applicable as income under the trusts of this my Will no part thereof being in any event liable to be retained as corpus or capital but no reversion or other property not actually producing income which shall form part of my estate shall under the doctrine of constructive conversion or otherwise be treated as producing income or as entitling any party to the receipt of income Provided always and I further declare that notwithstanding any thing herein before contained any investments taken or made for the purpose of this my Will during the widowhood of my said wife (whether originally or upon a variation or transposition of investments) may with her concurrence and consent (whether she shall at the time be a trustee for the purposes of this my Will or not) be taken or made (if the trustees or trustee for the time being of this my Will shall so think fit and in their his or her discretion) in or upon any Government or real or leasehold securities in the United Kingdom or Bank Stock or the Debenture Guaranteed or Preferred Stock or Shares or the debentures or obligations of any Railway or other Incorporated Company of the United Kingdom Colonial Bonds and Russian (Nicola) Bonds or any other stocks funds shares or securities which the said trustees or trustee shall consider fitting and safe and every investment so taken or made shall be deemed to all intents and purposes an authorized investment Provided always and I declare that the provision hereby made for my said wife shall be accepted by her in satisfaction and bar of the dower and freebeuth to which by the Common Law or by Custom she might be entitled in or out of the freehold copyhold or customary hereditaments of or to which I have been or am or shall be seized or entitled Provided always and I further declare that (unless as to any such sum I shall in writing direct to the contrary) all sums which I shall in my life time advance or give or covenant or agree to advance or give to or with any of my children on his or her marriage or otherwise for his or her advancement or preferment shall be taken in or towards satisfaction of the provision intended to be hereby made for such children (as to a child dying in my life time) for his or her issue taking by way of substitution as aforesaid for such child respectively and shall be brought into hotchpot and accounted for accordingly But so that with respect to any child of mine any such future advancement shall be taken as being primarily in or towards satisfaction of the legacy herein before bequeathed to such child of mine respectively and as to the excess only (if any) of the amount of such advancement above such legacy respectively shall be taken in or towards satisfaction of the share of such child in my residuary estate And with respect to the issue of any child of mine dying in my life time and such future advancement in favour of the parent shall not be accounted for unless the total amount of such advancement shall exceed two thousand pounds and then shall only be accounted for to the extent of the excess of such advancement above such sum of two thousand pounds And I declare that if any question shall arise as to the amount to be accounted for the same shall be determined by the trustees or trustee for the time being of this my Will (other than the child the value of whose advancement shall be in question if such child shall happen to be a trustee of this my Will) according to their his or her discretion and such determination shall be final And I declare that if the trustees hereby appointed or either of them shall die in my life time or if they or either of them or any future trustee or trustees of this my Will shall die or desire to retire from or refuse or become incapable to act in the trusts of this my Will before the trust shall be fully performed then and in every such case it shall be lawful for my said wife during her life and after her decease for the continuing trustees or trustee for the time being of this my Will or if there shall be no continuing trustee then for the retiring or refusing trustees or trustee or the executors or administrators of the last acting trustee to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying or desiring to retire or refusing or becoming incapable to act as aforesaid with liberty upon any such appointment to increase or diminish the original number of trustees and upon every such appointment the trust premises shall be so conveyed and transferred that the same may become vested in the new trustee or trustees either jointly with the continuing trustee or trustees or solely as the case may require and every such new trustee (as well before as after the trust premises shall have become vested in him) shall have all the powers and authorities of the trustee in whose place he shall be substituted I devise and bequeath all estates vested in me as a trustee or mortgagee unto the said Celia Mary O’Bryen and the Reverend Henry Hewett O’Bryen their heirs executors and administrators subject to the trusts and equities affecting the same respectively but so that the money secured by any mortgage shall form part of my personal estate In witness whereof I the said John Roche O’Bryen the testator have to this my last Will and Testament contained in this and the nine preceding sheets of paper set my hand this sixteenth day of May in the year of our Lord one thousand eight hundred and seventy – John R. O’Bryen M.D. – Signed by the said John Roche O’Bryen the testator as and for his last Will and Testament in the presence of us (present at the same time) who at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses – William Henry Burke 32 Thistle Grove, Brompton– Chas Jas Richards Clerk to Jas Warner 61 Chancery Lane & 9 Livermere Road, Dalston
The Grant of Probate for John Roche O’Bryen’s Will shows assets valued at under £14,000.
This transcription of John Roche O’Bryen’s Will is reproduced from the original manuscript copy retained by the Probate Office Sub Registry in York .
A little over a year ago, I came across this in the national Archives catalogue, ” Cause number: 1872 B246. Short title: Burke v Keith.” Basil and Harriet O’Bryen were somehow involved in the case. I registered for a reader’s ticket, given the required notice because the records were stored off site, and was booked in for a visit to the National Archives in Kew.
National Archives, Kew
My original plan was to see if anything about Burke v. Keith could shed any light on Burke v. O’Bryen. It was a rather odd experience. Very close, in fact only a few stops on the Overground. Almost airport-style searches for entry into the reading rooms, and then a collection of the materials ordered via a rather strange two-way locker system. Everyone else seemed to be either collecting books, or A4 box files, or even large heavy-duty brown envelopes. What I seemed to be collecting was larger. “Ah, the large order” was what the lady at the desk said ” I’ll bring the trolley round to your locker. It’ll probably be best if you take the boxes out one at a time, and return each one before you collect the next.”
What turned up was three cardboard archive boxes, each tied with rather elderly bits of string, and after a lot of looking through irrelevant, unrelated cases. I found this
1872-B-No 246 Filed 28th November 1872 pursuant to order dated 1st November 1872
In Chancery
between
William Henry Burke – plaintiff
and
Wilson Keith
Basil William O’Bryen, and Harriet Matilda, his wife
Mary Ann Burke, the wife of William Henry Burke.
and
William Donald Henry Burke
Edmund John Burke
Kate Alice Burke (spinster)
Sarah Elizabeth Burke (spinster)
Walter Keith Burke
all infants
Defendants
So Burke v. Keith and others is a case where Henry Burke is in a legal dispute with his sister, and two brothers-in-law, [Wilson Keith is Mary Ann Burke’s brother] and his wife, and children are also defendants in the case. What follows is fairly full and verbatim:
The joint and several answer of Wilson Keith, Basil William O’Bryen, and Harriett Matilda, his wife, three of the above-named defendants to the amended bill of complaint of the above named Plaintiff.
In answer to the amended said bill we, Wilson Keith, Basil William O’Bryen, and Harriett Matilda O’Bryen, say as follows-
We believe the statements contained in the first eight paragraphs of the Plaintiff’s Bill of Complaint are correct.
The said William Henry Burke the testator in the Bill named made his will dated the 6th day of May 1870 and thereby after making certain bequests and devises he gave all the residue of his real and personal estate to his daughter the defendant Harriett Matilda O’Bryen then Harriett Matilda Burke absolutely and he appointed the defendant Harriett Matilda O’Bryen and George William Wood and the defendant Basil William O’Bryen, executrix and executors of his said will.
The said testator died on the 17th July 1870 without having revoked or altered his said will except so far as the same was revoked or altered by a codicil thereto which did not affect the disposition of residue or the appointment of executors in the will contained.
Upon the testator’s death a caveat was entered by the Plaintiff William Henry Burkeagainst the proof of the said will and codicil. The said caveat was however withdrawn and the said will and codicil admitted to probate upon an arrangement being come to between the Plaintiff and the defendant Harriett Matilda O’Bryen then Harriett Matilda Burke. The said arrangement was embodied in the following agreement which was duly signed by the solicitors of the parties on 19th November 1870.
“Miss Burke to assign Green’s mortgage debt and the West Drayton mortgage and the securities for the same”
“Miss Burke to take upon herself payment of Mr and Mrs Shea’s annuity”
“Mr Burke to provide for the child Rhoda and to pay Messrs Jenkinsons’ and Mr Lovejoy’s charges and expenses in respect of Green’s mortgage.”
“Miss Burke to pay all debts and charges out of residue, The household furniture, plate, linen, brougham, and horse and things in and about the house and premises not to be considered residue but to be the property of Miss Burke.
“Miss Burke to be entitled to retain out of residue £200 and £500 to dispose of as she sees fit.”
“The balance of the residue (if any)to be handed to Mr Burke.”
“Miss Burke to execute deeds in accordance with drafts marked, A,B, and C. Mr Burke to execute deed in accordance with draft marked D.
“If residue insufficient to pay the debts and charges including the £200 and £500 Mr Burke is to make up deficiency to the extent of £1000 to be paid in equal instalments in one and two years. If the deficiency should not exceed £500 to be paid within one year and if not exceeding £250 to be paid on demand.
It’s not Burke v. O’Bryen, in fact it seems to be rather the reverse. An out-of-court settlement between Henry Burke and his younger sister, which seems to be very much in his favour. Harriet does get most, if not all, of the house contents, but by and large, Henry Burke seems to have got his way regarding the residue.
It still leaves the question about what exactly Burke v. O’Bryen in 1871 was about. It must have happened between the 1st February, when Harriet and Basil were married, and 8th August 1871 when the notice was published in the London Gazette.
There are two other major questions raised by Harriet and Henry’s settlement. First, why does Henry agree for “Mr Burke to provide for the child Rhoda.” Who is she, and why does she need to be provided for? Secondly, who are Mr and Mrs Shea, and why does Harriet ” take upon herself payment of Mr and Mrs Shea’s annuity” ?
The other person who doesn’t really seem to appear much is Elizabeth Sarah Burke. In 1870, she was forty years old , and had been married to Alfred Edwardes for fourteen years, all five of their children had been born, and their eldest son was about eleven years old. Both Elizabeth and Alfred seem to have avoided the dispute.
But the next step is to look in greater detail about what Burke v. Keith can tell us.
Part of the William Henry Burke story [If you haven’t seen part 1 and part 2 use the links here] was always going to come from what the court case was. Quite early on, I had come across this cutting from the London Gazette.
So it’s quite clear that there has been some sort of argument about the will. Given the title of the case referred to “Burke against O’Bryen” and that George Wood is “one of the defendants and executors”, it must be the case that either Basil or Harriet O’Bryen, or, most likely, both, were also defendants. The only close adult member of the Burke family likely to be the claimant is (William) Henry Burke, and it appears from this notice that he had some sort of dispute with his sister, and a brother-in-law. So the search was on for what the case was about. We knew from the details in the ” Illustrated London News “ in January 1871 that WHB left about £ 18,000. The only figures in that clipping were that Henry Burke received shares worth £ 6,070 ” beyond any other provision made for him “. We also know that he made “provision and settlement for his two daughters, and daughter in law,” , and that Harriet received £ 500 to give to charity as she saw fit, and that she was the “residuary legatee of both his real and personal estate “. So the bulk of the estate, almost two-thirds in fact, are either settled on the daughters, and daughter-in-law, or part of the residual estate. Harriet also seems to get the family home, and potentially other property as well.
32 Thistle Grove [now Drayton Gardens] in South Kensington was a fairly new-built house, construction had started in 1845, with the majority of the houses completed by the end of the 1850’s. It had probably cost in the region of about £ 600 to build. So not a bad thing to inherit. All in all, Harriet and Basil seem to have done fairly well from her inheritance, certainly well enough for Henry Burke to feel hard done by.
The next step was to try to track down the details of Burke against O’Bryen. After a lot of fruitless searching, I finally came across something in the National Archives catalogue, having searched under O’Bryen. The following came up:
Cause number: 1872 B246. Short title: Burke v Keith.
Plaintiffs: William Henry Burke.
Defendants: Wilson Keith, Basel William O’Bryen, Harriett Matilda O’Bryen his wife, Mary Anne Burke (wife of William Henry Burke) and William Donald Henry Burke, Edmund John Burke, Kate Alice Burke spinster, Sarah Elizabeth Burke spinster and Walter Keith Burke.
The title of the court case isn’t Burke v. O’Bryen exactly, but it’s definitely a court case involving Henry Burke, his sister Harriet, and Basil O’Bryen. It had to be worth looking at, so a little over a year ago, I’d registered for a reader’s ticket, given the required notice because the records were stored off site, and was booked in for a visit to the National Archives in Kew.
For reasons I’m not entirely sure why, there has been a large increase in interest in the post I did just over two years ago about the will of William Henry Burke (1792-1870). This got me to look at him again, and to see what else could be put together. This is the second of a series of posts that should explain a lot more. If you haven’t read the first one you can find it here. My starting point for looking at William Burke was one of his sons-in-law Basil O’Bryen. But everything is much more complicated than that.
To re-cap slightly.
William Henry Burke and John Roche O’Bryen [Basil’s father] were neighbours in South Kensington. Both men drew up new wills in May 1870, and died in July that year. What raised my curiosity was the fact that neither of WH Burke’s elder children, or their spouses were made executors, and he chose his youngest daughter, and her twenty-two year old fiancé Basil. Basil O’Bryen had stood out very early on. Mostly, because he is a wrong’un; he married three times, at least once bigamously [at least according the English law] in Australia. He abandoned his son from his marriage to Harriet, and his second wife and their two children, and moved to Australia, where he married his third wife. There is also signs of at least one court case, with reference to a court case Burke v. O’Bryen in a London Gazette notice in August 1871.
So on with the story.
There’s something about the Basil and Harriet story that I just can’t get at the moment. In brief, it reads like the plot of a novel. They marry when he is twenty-two, and she is thirty-three. I still can’t work out whether it’s love, money, or both. His father left £1,000 [present-day value £750,000] to the trust Harriet was a beneficiary of when he drew up his new will. The other parties to the settlement being his daughter Corinne, and Basil’s step-mother Celia. Presumably, there were already funds in the trust, initially I thought it seemed to be a Marriage Settlement, but I am beginning to think that it was a settlement to provide income for both Corinne, and Harriet. John Roche O’Bryen’s will is very detailed, quite long, and very specific with regard to provision to the children of his second marriage to Celia Grehan. There is a great lack of detail about any of his adult children, apart from the reference to the settlement. The reason, I now think, it may be a settlement for adult female members of the family is the will very clearly states that any sums provided for daughters should be “settled upon daughters in manner following, that is to say. Upon trust, to pay the income thereof respectively to such daughter for her sole and separate use, free from the control of her husbands.” But this doesn’t really help with where Basil got any money from, and when. The best guess is that there was money from Eliza Henderson [ JROB’s first wife], his mother, and that both Henry Hewitt, and Basil had benefitted from that already.
The marriage lasted just thirty-one months, and Harriet was dead by the end of August 1873, leaving Basil a twenty-five year old widower, with an eleven-month old son Basil John. All very tragic, but Basil bounces back, and is re-married within nine months of Harriet’s death. He is now twenty-six, and his bride Agnes Kenny is twenty-three.
Basil and Harriet’s marriage also raises questions about who the families are. The main one is why were they married by the Archbishop of Westminster? Marrying in the pro-Cathedral makes sense because it is fairly close to Thistle Grove, and was probably the parish church at the time. Archbishop [later Cardinal] Manning seems to be a rather grand celebrant for the wedding, particularly as Harriet had been christened as an Anglican, at St Leonard’s Shoreditch, as had her brother, and sister. But perhaps, as Manning was a convert himself, he looked fondly on bringing Anglicans to the true Church. Elizabeth Burke, Harriet’s sister also married a Catholic.
What is interesting is how connected to the Burke family he seems to remain, at least initially. Or possibly more correctly, how connected to Burke property he is. According to the London Gazette William Henry Burke of No 32 Thistle grove South Kensington, had his will proved by amongst others, Harriet Matilda Burke of No 32 Thistle grove and Basil William O’Bryen of No 28 Thistle grove. So in December 1870, they each gave their father’s addresses as theirs. On the census date, April 2nd 1871, they both were listed at his step-mother’s address No 28 Thistle grove, where they were described as “visitors”. But the probate record for Harriet – slightly strangely not proved until 30th August 1875, two years after her death, gave her principal address at the time of her death as No 32 Thistle grove, which was also the address that Basil gave when he proved the will. So five years after William Henry Burke’s death, and two years after Harriet’s, her widower is apparently still connected to the Burke family home. Even though during that time, Harriet had given birth to their son Basil junior in Torquay, and she died at 34 Cavendish Place, Eastbourne. Her probate record recorded her as “late of 32 Thistle grove”. She left just £100.
The next nugget came from a small story in “The Tablet” [The International Catholic News Weekly.]
THE PRO-CATHEDRAL—A pleasing addition has lately been made to the Pro-Cathedral of Clifton. The side chapel, dedicated to St. Joseph, has been entirely renewed and decorated, and a marble altar erected, the reredos of which was executed in Belgium. The whole has a very pleasing effect. It is the gift of Basil O’Bryen, esq., as a memorial of his late wife Harriet Matilda O’Bryen, who died August 23, 1873, and whose remains are buried in the cemetery at Fulham. [Page 18, The Tablet, 5th February 1876.]
This is also very curious. There doesn’t appear to be any family connection between the Burke family, and Bristol. In fact, far from it. William Henry Burke gave his birthplace as the “City of London”, and Sarah Burke (neé Penny) and all the children were recorded as being born in London in the 1841 census when they were living in Noble Street in the City. [Noble Street is north-east of St Paul’s]. There is an O’Bryen Bristol connection, John Roche O’Bryen had practiced medicine there from at least 1841, and Basil himself was born there, and his mother, and six brothers and sisters, are buried in the city. But by the time Basil was 10 the O’Bryen family were in Liverpool, and by 1861, when he was 12, the family were in London, and he was at boarding school at Ratcliffe College.
It’s an interesting public gesture, and all the odder for the eccentric choice. A memorial in the Pro-cathedral in London would have seemed more obvious, given that Basil and Harriet got married there, or a memorial at St Thomas of Canterbury in Fulham, where John Roche O’Bryen, Basil’s step-brother Walter, and Harriet were buried; followed twenty-five years later by his step-mother Celia, and, later still, by another step-brother Philip. Perhaps Basil felt the need to try to repair his father’s somewhat sullied name in Bristol.
But there is still the question about why Basil and Harriet were her father’s executors, and more particularly, in a rather patriarchal age, WHB didn’t choose either his son, or a long-established son-in-law.
The Burke children were
Elizabeth Sarah (1829 – 1889)
William Henry ( 1835 -1908)
Harriet Matilda (1838 – 1873)
In 1870, the eldest daughter Elizabeth Sarah was forty years old , and had been married for fourteen years, all five of her children had been born, her eldest son was about eleven years old. In one of those nice twists, and coincidences, Elizabeth and Alfred Edwardes’ second son, nine year-old, Henry Grant Edwardes would go on to marry Lucy Purssell, whose sister Gertrude married Basil’s step-brother Ernest O’Bryen in 1898. So Basil’s nephew was his step-brother’s brother-in-law.
His only son William Henry, known as Henry, was thirty-five, had been married nearly nine years, and was the father of four children, with another one on the way. Yet the choice of executors was the youngest unmarried daughter, and her much younger fiancé.
So is the answer to be found in Burke v. O’Bryen ?
For reasons I’m not entirely sure why, there has been a large increase in interest in the post I did just over two years ago about the will of William Henry Burke (1792-1870). In fact there has been a 375% increase in views this year, compared with 2016. Neither the post about his will, nor another one about him posted about the same time give many, or indeed any, clues as to why it is there. Both posts were very early ones in the history of this site, and like a lot of the early posts are almost like cuttings in a scrapbook, not clearly explaining themselves. This is the first of a series of posts that should explain a lot more. My starting point for looking at William Burke was one of his sons-in-law Basil O’Bryen.
William Henry Burke and John Roche O’Bryen [Basil’s father] were neighbours in South Kensington, both living in Thistle Grove [now Drayton Gardens, not to be confused with the current Thistle Grove, parallel with Drayton Gardens]. Both men drew up new wills in May 1870. On the 6th May in William Henry Burke’s case, and ten days later on the 16th May by JROB. William Burke witnessed John Roche O’Bryen’s will, and John Roche O’Bryen’s youngest adult son from his first marriage, Basil O’Bryen, was one of the executors of William Henry Burke’s will, along with WHB’s daughter Harriet, and an accountant. JROB also drew up a Deed of Settlement on the 13th May 1870, in favour of Harriet Burke, with his wife Celia, and daughter Corinne [Basil’s older sister] as trustees. This was presumably a Marriage Settlement as Basil O’Bryen and Harriet Burke married in 1871.
So far, it all appears fairly straightforward. Two families who have grown close, and about to be linked by marriage. But something about it just niggles slightly, and has almost from the start. The closer one looks the more of a story there seems to be. For a start, both men were dead within months of drawing up the wills, and trust settlements. With almost perfect symmetry, William Henry Burke lasted seventy-two days, dying on the 17th July 1870, at Queenstown [now Cobh] in Cork; John Roche O’Bryen lived a day less, dying seventy-one days after signing his will, on 26th July 1870 at home in Thistle Grove in London. William Burke was seventy-eight years old, and JROB was sixty.
So both men may have just been putting their affairs in order, and a forthcoming marriage, and the need for a marriage settlement may have just prompted the work, or it might have been something else.
This prompted me to look at the families, and to who in each family was doing what. John Roche O’Bryen had a lot of children, well more accurately had had a lot of children. In total, he had sixteen, starting in 1833, when he was twenty-three, and finishing thirty-four years later in 1867 at the age of fifty-seven. There were ten children from his first marriage to Eliza Henderson, of whom only three survived to adulthood, and six children from the second marriage to Celia Grehan, of whom five survived to adulthood. At the time he drew up his will, JROB had three adult children, and six under the age of twelve, the youngest being two and a half.
William Henry Burke’s family is easier. He had three children with Sarah Penny, who he married in 1827. All of William’s children were over thirty, and at the time of his death, his eldest daughter was forty.
Both men had three adult children to choose from as executors, and trustees, and they appeared to make some slightly odd choices, given the possibilities. The Burke children were
Elizabeth Sarah (1829 – 1889)
William Henry ( 1835 -1908)
Harriet Matilda (1838 – 1873)
and JROB’s adult children were
Henry Hewitt (1835 – 1895)
Corinne Margueritte (1837 – 1907)
(William Gregory) Basil (1848 – 1920)
So the next step was to look at the trustees and executors. The Illustrated London News, on Jan 14, 1871, told us that William Henry Burke’s will was proved by “Miss Harriett Matilda Burke, his daughter, George William Wood, and Basil William O’Bryen, the joint acting executors.” John Roche O’Bryen’s will was proved eighteen days after his death by his widow Celia, and Rev. Henry Hewitt O’Bryen D.D. the executors. This seems perfectly suitable, Henry is the eldest son, thirty-five years old, a doctor of divinity, and a Catholic parish priest just outside Wigan. How close the relationship between father and son was is never really that clear. Henry started training for the priesthood in his late teens, and aged twenty transferred his sponsoring diocese from Clifton, where the family home in Bristol was, to Liverpool. He then studied, and was ordained in Rome, before returning to Liverpool in 1858. Their paths crossed for a couple of years in Liverpool between 1858 and 1860, when JROB practised as a doctor there, but by 1861 John Roche O’Bryen and his family with Celia Grehan [Henry’s step-mother] had moved to London.
William Henry Burke’s executors are much odder. Here’s part of the reason why
WHB’s executors are his youngest daughter, her fiancé Basil, and an accountant. This always seemed to be slightly strange. William Henry Burke had three children, and at the time he wrote his will, his eldest daughter Elizabeth Sarah was forty years old , and had been married for fourteen years, a mother of five, her eldest son was about eleven years old. His only son William Henry, known as Henry, was thirty-five, had been married nearly nine years, and was the father of four children, with another one on the way. Yet the choice of executors was the youngest unmarried daughter, and her much younger fiancé.
Right from the start, this raised the question – Why these two? Basil O’Bryen had stood out very early on. Mostly, because he is a bit of a bounder, to put it mildly. Basil married three times, at least once bigamously [at least according the English law] in Australia. The legal position in Australia was more complicated. Apparently re-marriage after seven years of no contact with a previous wife was legal in Australia. What is beyond dispute is that he abandoned his son from his marriage to Harriet, and his second wife and their two children, and moved to Australia, where he married his third wife.
So with the benefit of hindsight, Basil does appear to be a wrong’un; which brings us back to WHB’s will, or more specifically, at this stage to the probate notice. Two things stand out, the first is that Basil is described as an accountant, and the second is his address is given as 18 Gunter Grove. In 1870, Basil is twenty-two, and four years into an apprenticeship with Charles Rowsell, an accountant based in Walbrook, in the City, just down from the Mansion House. So maybe he is just being economical with the truth, he is a sort of accountant. But the Gunter Grove address is very confusing. It’s about three quarters of a mile away from Thistle Grove, but it does seem peculiar that he is not in the family home. He’s fairly young, as yet unmarried, and it seems unlikely that he would bother living away from the family home. 18 Gunter Grove, if he was living there, is a big house. The next piece of the jigsaw came from in a notice in the London Gazette
The London Gazette, December 9, 1870
WILLIAM HENRY BURKE Esq Deceased
Pursuant to the Act of Parliament of the 22nd and 23rd Vic cap 35 intituled An Act to further amend the Law of Property and to relieve Trustees
NOTICE is hereby given that all persons having anyclaim, debt, or demand against or upon the estate of William Henry Burke late of No 32 Thistle grove South Kensington in the county of Middlesex Esq (who died on the 17th day of July 1870 and whose will with a codicil thereto was proved in the Principal Registry of Her Majesty’s Court of Probate on the 3rd day of December 1870 by Harriet Matilda Burke of No 32 Thistle grove South Kensington aforesaid Spinster George William Wood of No 4 Sambrook court Basinghall street in the city of London Accountant and Basil William O Bryen of No 28 Thistle grove South Kensington aforesaid Accountant are hereby required to send in the particulars of their claims debts or demands to the said George William Wood one of the said executors at his office No 4 Sambrook court Basinghall street in the city of London on or before the 1st day of February 1871 after which day the said executors will proceed to the assets of the deceased among the parties entitled thereto having regard only to the claims debts or demands of which they shall then have had notice and the said executors will not be liable for any part of such assets to any person or persons of whose claim debt or demand they shall not then have had notice Dated this 7th day of December 1870.
WILLIAM GILLS Solicitor, No. 26, Old Broad –street, E.C.
So perhaps the National Probate Calendar (Index of Wills and Administrations) entry is wrong, but it is surprising that a formal legal document would get something so basic wrong, and also then place Basil O’Bryen quite so geographically close. By the time of their marriage, both Basil and Harriet are described as being in Thistle Grove again.
The Medical Press and Circular Advertiser Feb 8 1871
On the 1st inst at the Pro Cathedral Kensington, by his Grace Archbishop Manning, assisted by the Rev Fathers Foley and Conolly. Basil, second surviving son of the late John Roche O’Bryen Esq MD to Harriet Matilda, youngest daughter of the late William Henry Burke; both of Thistle Grove South Kensington.
They marry almost exactly six months after JROB’s death, and therefore six months and two weeks after William Burke’s death. This would be the expected period of “full mourning” after the death of a parent, but still relatively soon after both fathers’ deaths. It might explain the somewhat low-key, and under-reported, wedding. Having said that, one or both of them are sufficiently well-connected for them to be married by the Archbishop of Westminster himself. The Pro-Cathedral was, what is now Our Lady of Victories on Kensington High Street. But there is still the nagging question about the age gap. Basil is twenty-two, and Harriet is thirty-three. The marriage does seem to have been approved of by both fathers, or at least one can surmised that from the deed of settlement drawn up by John Roche O’Bryen in May 1870.
The next step came from the London Gazette
This looked interesting. It was something to hunt for, given the names involved, it’s a dispute about William Henry Burke’s will, and as George Wood is one of the defendants, someone is suing the executors. Are Basil and Harriet too good to be true?
HMS Dart was built in Redbridge, Hampshire, on the fringes of Southampton in 1796, and broken up in Barbados in 1809. She had the same bow and stern and could anchor from either end. She was so sharp in her construction that the midship section resembled a wedge. This resulted in poor stability, and she was unsafe in a wind. Hence her fairly short career as this version of the ship. There were later Royal Navy ships given the same name.
The Zuiderzee in the centre of the map. About 580 sq miles are now reclaimed land.
Around the end of August 1799, Dart captured the sloop Jonge Jan off the Dutch coast. Dart also shared with gunboats Defender, Cracker, and Hasty in the proceeds of the capture of the Hell Hound. Notices calling for claimants for the prize money were placed in the London Gazette on 7th January 1803. On 7 October 1799, the Dart, Defender, Cracker, and Hasty, and the schuyt Isis cut out four gunboats from their moorings in the Zuiderzee. Three of the gunboats were schuyts, [A schuyt is a flat-bottomed sailing boat used in the Netherlands, originally for fishing or carrying light cargoes. In the 17th century, they were rigged with two masts like a ketch, but by the 19th century, had adopted a single mast like a sloop] but one was a new, purpose-built gunboat armed with two 18-pounder guns in her bow and two 18-pounder carronades in her broadside. The three schuyts also carried four guns and carronades each. The vessels had crews ranging in size from 20 to 30 men. The British suffered no casualties [ Naval Chronicle, Vol. 3, p.141 ]. The behaviour of Messrs. Hall and Winter, midshipmen, were particularly commended. Rob Hall was also a midshipman on the Dart, and at least the City of Cork thought he deserved an award. He was twenty-one years old.
The following year Rob had been promoted, and had been gazetted a lieutenant on 14 June 1800. Less than a month later, HMS Dart took part in the Raid on Dunkirk, which was being blockaded by the British. The Channel ports were well suited for the French frigates that attacked shipping in British waters whenever they could escape the blockade.
HMS Dart, captured Désirée on 8 July 1800, in a night raid into Dunkirk harbour. Désirée was armed with 40 guns, those on the main deck being 24-pounder guns, and had a crew of 250 men under the command of Citizen Deplancy. However, a number of her crew were on shore. Dart lost one man killed and 13 wounded, including two officers badly wounded. Although several other vessels that participated in the raid had some wounded, Dart‘s capture of Désirée was the raid’s only real accomplishment. This capture resulted in Campbell’s promotion to post captain and command of the frigate Ariadne. French casualties were heavy. One account states that all the French officers, save a midshipman, were killed, and that casualties amounted to almost 100 men killed and wounded. Lloyd’s List reported on 11 July that the “Grand Desiree”, prize to the Dart, had arrived in the Downs, and that the French captain and about 50 men had been killed, and nine wounded. The French commander was capitaine de frégate Lefebvre de Plancy, and French records show that he was mortally wounded in the action.
The Royal Navy took Desiree into service, and many British vessels shared in the proceeds of the capture.In 1847 the Admiralty issued the Naval General Service Medal, with clasp “Capture of the Désirée” to all surviving claimants (only 21 surviving men) from the raid.[ Fonds Marine, p.235., and The London Gazette. 27 September 1800. p. 1123 ]
This is the start of a slight Hornblower moment or two. Robert Hall is Mary Roche’s (neé Verling) son by her first marriage to “Captain Hall”. She is 4 x Great-Granny He is John Roche’s step-son.
The starting point for this post was coming across a couple of cuttings from the Irish Times, and the Irish Independent.
City of Cork Freedom Box
Irish Times, Saturday 22 January 2005. A rare Irish silver freedom box, right, giving the Freedom of the City of Cork dating from 1808 is up for auction at John Weldon next Tuesday (25th January 2005) with an estimate of €10,000-€15,000. The square box is hallmarked Dublin 1808 and is inscribed with the City of Cork arms and an inscription. It was presented to a Captain Robert Hall on August 22nd, 1809 for gallantry for his part as a midshipman on board The Dart in battle with four Dutch gunboats in 1796 and with a French frigate in July 1800.
The inscription reads: ” With this box the Freedom of the City of Cork in Ireland was unanimously given to Capt Robert Hall for his gallant conduct in his Majesty’s Navy the 22nd day of August 1809 “.
Irish Independent; 3 Apr 2015 – A Cork Freedom Box, made in Dublin in 1808 and given to the naval officer Captain Rob Hall for gallant conduct in the Napoleonic wars, sold at John Weldon Auctioneers on March 24 for €5,500.
So some local recognition of a local naval hero. But we need a little more. From the Dictionary of Canadian Biography (edited) we can get the following: HALL, Sir ROBERT, naval officer; baptized 2 Jan. 1778 in County Tipperary (Republic of Ireland); his father remains unidentified, while his mother is known only through the probate of his will, where she appears as “Mary Roche, heretofore Hall”; Robert Hall’s early years have not attracted the attention of naval biographers. It is known, however, that he was gazetted a lieutenant in the Royal Navy on 14 June 1800, a commander on 27 June 1808, and a captain on 4 March 1811.
HMS Dart and La Désirée
The Canadians go on at some length about Rob Hall’s career and achievements in Canada, but seem to have missed his early “gallant conduct”. The information with the presentation of the freedom box is for his “gallantry for his part as a midshipman on board The Dart in battle with four Dutch gunboats in 1796 and with a French frigate in July 1800”. So what was this early gallant conduct. It turns out to be the capture of Dutch ships in the Zuiderzee in 1799, not 1796, and a French frigate in 1800.
Rob Hall, later Sir Robert Hall [ 1778 -1818 ] is Mary Roche (neé Verling) son by her first marriage to “Captain Hall”. He is John Roche’s step-son, and John Roche O’Bryen’s step-uncle. He seems to have had a distinguished naval career, and the Dictionary of Canadian Biography closes its entry on him as follows ” An affable, gallant, and cultivated officer, Hall in his Canadian posting had proved himself a conspicuously fair-minded, innovative, and efficient administrator. His heirs were a natural son, Robert Hall, born in 1817 to a Miss Mary Ann Edwards, and his mother Mary Roche, who was his residuary legatee. The son, baptized on 2 Nov. 1818 by George Okill Stuart, rector of St George’s Church in Kingston, became a vice-admiral in the Royal Navy and died in London on 11 June 1882 after having served for ten years as naval secretary to the Admiralty. “
I really like the fact that he acknowledged and provided for a bastard son, and was happy for it to be acknowledged in the family, and according to the Pedigree of the Verlings of Cove by Dr. Gabriel O’Connell Redmond, ” An obelisk was erected to his memory in Aghada Wood by his stepfather John Roche of that place.”; so they certainly weren’t ashamed of him. There is more work to be done on the early life, but there is certainly evidence that his step-sister Mary Roche seems to have been born in Ireland in 1780, and died in 1852, according to the obituary notice “Mary O’Brien, relict of the late Henry Hewitt O’Brien, aged 72,”. Her probate notice spells the name O’Bryen, but notes the will spells it O’Brien. So it seems highly likely that Mary Hall (neé Verling) had re-married as a widow with a son under the age of two, and that John and Mary Roche brought up three children. Mary’s son Rob Hall, and then Mary Roche junior, and, finally, John Roche junior, who was one of the parties to his sister’s [Mary Roche junior] marriage settlement in 1807.
So back to the Canadians.
It is known, however, that Robert Hall was gazetted a lieutenant in the Royal Navy on 14 June 1800, a commander on 27 June 1808, and a captain on 4 March 1811. He attracted attention for sterling service in the defence of a fort on the Gulf of Rosas, Spain, in November 1808 while in command of the bomb-ketch Lucifer. On 28 Sept. 1810 he enhanced his reputation when, as commander of the 14-gun Rambler, he captured a large French privateer lying in the Barbate River, Spain.
This does provide one slight problem if the inscription on the freedom box is correct. The inscription reads: ” With this box the Freedom of the City of Cork in Ireland was unanimously given to Capt Robert Hall for his gallant conduct in his Majesty’s Navy the 22nd day of August 1809 “. If the inscription is right, then the Canadians are wrong because they don’t make Rob a captain until 1811. If the Canadians are right, then the City of Cork has promoted him early.
More from the DCB. In September 1811 Hall was appointed to command a flotilla entrusted with the defence of Sicily against naval forces operating from French-occupied Naples. He achieved a major success at Pietrenere (Italy) on 15 Feb. 1813 in a raid on a convoy of about 50 armed vessels, French supply ships escorted by many Neapolitan gunboats. With only two divisions of gunboats carrying four companies of the 75th Foot he neutralized the enemy’s shore batteries and captured or destroyed all 50 ships. In recognition of this feat he was made a knight commander in the Sicilian order of St Ferdinand and of Merit. Permission to accept this honour was granted by the Prince Regent on 11 March, at which time Hall was described as a post-captain and a brigadier-general in the service of Ferdinand IV of Naples.
The DCB goes into rather greater detail once Rob Hall arrived in Canada. It is probably considerably more interesting to Canadians so there is a link to the full entry here. My version is edited from the full version. On 27 May 1814. Hall was designated acting commissioner on the lakes of Canada, to reside at Quebec; his actual headquarters would be the naval dockyard at Kingston, Ontario. [Kingston is at the junction of Lake Ontario, and the St. Lawrence River, and was the main naval headquarters for the British Great Lakes fleet]. He was not immediately available and did not report for duty in Kingston until mid October. His new assignment involved a dual responsibility: to the commander-in-chief on the lakes, Sir James Lucas Yeo, for the building, outfitting, supply, and maintenance of naval vessels, and to the Navy Board in London for the administration of the navy yard at Kingston and its dependencies on the Upper Lakes and Lake Champlain, and all naval victualling and stores depots in the two provinces.
Burning the White House, 1814
The British and the Americans were in the middle of the War of 1812 [which actually lasted from 1812 – 1815]. Robert Hall’s arrival in Canada was at an interesting time; almost eight weeks earlier, a British attack against Washington, D.C., resulted in the “Burning of Washington”. On August 24, 1814, after defeating the Americans at the Battle of Bladensburg, a British force led by Major General Robert Ross occupied Washington and set fire to many public buildings, including the White House, and the Capitol. It marks the only time in U.S. history that Washington, D.C. has been occupied by a foreign force. The new commissioner’s immediate concern was the implementation of Yeo’s plans for a decisive campaign against the Americans in 1815. These involved the completion or construction of five frigates, two ships of the line, a number of gunboats, and brigs, To this ambitious program Hall made an important addition: a scheme to rid the naval units of transport duties He sent this proposal to the Navy Board, but all plans for a campaign in 1815 became redundant when the Governor was notified of the ratification of an Anglo-American peace signed at Ghent (Belgium) on Christmas Eve 1814.
The peace posed immediate and serious problems for Hall and his staff. The yard and its dependencies had incurred expenses of some £40,000 in wages alone in 1814, the building of the St Lawrence had been immensely costly, and a huge outlay was required to pay for the ships under construction. Prudence dictated the maintenance of a strong fleet for the time being. In March 2015, Hall was dispatched to England for consultations with the Admiralty about the future naval establishment in the Canadas.
Hall remained in England for more than a year, during which time the British government was engaged in negotiations with the United States which eventually led to the Rush–Bagot agreement of April 1817 to demilitarize the lakes. On 29 Sept. 1815 Hall was named commander on the lakes and resident commissioner at Quebec, thus combining the two senior naval appointments in the Canadas. The first authorized him to style himself commodore; the second confirmed him in the post of commissioner. He was knighted on 15 July 1816 and, distinguished with the additional honour of a companionship in the Order of the Bath, returned to Kingston on 9 September 1816.
He was seriously ill with a lung infection in October 1817, recovered sufficiently to return to duty for a few weeks at the end of the year, but died of this disease at his quarters at Point Frederick on 7 Feb. 1818. An affable, gallant, and cultivated officer, Hall in his Canadian posting had proved himself a conspicuously fair-minded, innovative, and efficient administrator. His heirs were a natural son, Robert Hall, born in 1817 to a Miss Mary Ann Edwards, and his mother Mary Roche, who was his residuary legatee. The son, became a vice-admiral in the Royal Navy and died in London on 11 June 1882 after having served for ten years as naval secretary to the Admiralty.
There seem to be some professions that run through the family again, and again. One that I hadn’t really paid much attention to until recently was the navy. It is an almost completely Irish thing, and is largely members of the family who were born, brought up, and lived in co. Cork. Starting furthest back [great grandpa x 5] Henry Hewitt was a Customs Officer, specifically at one time Captain of the Beresford Revenue Cutter. Then the Verling family pick up the strain. Bartholomew Verling of Cove, co. Cork and Anne O’Cullinane,[also great grandparents x 5] had five children, both daughters married naval captains, and of the three sons, Edward was a “Staff Captain R.N”, another Garrett “died at sea”, and the eldest son John Verling didn’t appear to go to sea, but his second son was James Roche Verling (1787 – 1858) who was a naval surgeon, and attended Napoleon Bonaparte on St. Helena. John Verling and Ellen Roche also had a daughter Catherine who married Henry Ellis “Surgeon R.N.”.
Cobh Harbour
Edward Verling, the “Staff Captain R.N”, had three children The eldest son Bartholomew Verling (1797 – 1893) was another naval surgeon, and Mary Verling married Capt. Leary R.N. Edward Verling’s sister, another Mary Verling married first a Captain Hall, and the secondly John Roche of Aghada [great grandparents x 4]. Mary Roche (neé Verling) had the distinction of being the mother of a Commodore, and grandmother of a vice-Admiral, albeit a bastard grandson. Finally, their nephew, another Bartholomew Verling (1786 – 1855) was Harbourmaster of Cobh, and also the Spanish Consul there.
So a lot of boating. What this did pose was the question why the navy? The logical answer was why not? It is estimated that around a quarter of the Royal Navy crew present at Trafalgar were Irishmen. It was regarded as a profession certainly at officer level, and was well paid. In 1793 a captain’s pay rate ranged between £100 – £336,[£128,000 – £433,000 at today’s value] and by 1815 this had risen to £284 – £802.[£212,000 – £600,000 at today’s value]. After 1806, a naval surgeon’s salary was set at 10s. per day for less than 6 years experience, up to 20s. per day for over 20 years experience £182 – £ 365 [£164,000 – £328,000 at today’s value]. So, apart from the minor problem of being killed, it was very well paid. But in addition to the pay ( especially if you were an officer) was the prize money paid for capturing enemy ships.
In the 16th and 17th centuries, captured ships were legally Crown property. In order to reward and encourage sailors’ efforts at no significant cost to the Crown, it became customary to pass on all or part of the value of a captured ship and its cargo to the capturing captain for distribution to his crew. Similarly, all warring parties of the period issued Letters of Marque and Reprisal to civilian privateers,[essentially legal pirates] authorising them to make war on enemy shipping; as payment, the privateer sold off the captured booty.
This practice was formalised via the Cruisers and Convoys Act of 1708. An Admiralty Prize Court was established to evaluate claims and determine prize money, and the scheme of division of the money was specified. This system, with minor changes, lasted until the end of the Napoleonic Wars.
If the prize were an enemy merchantman, the prize money came from the sale of both ship and cargo. If it was a warship, and repairable, usually the Crown bought it at a fair price; additionally, the Crown added “head money” of £ 5 per enemy sailor aboard the captured warship. Prizes were keenly sought, for the value of a captured ship was often such that a crew could make a year’s pay for a few hours’ fighting. Hence boarding and hand-to-hand fighting remained common long after naval cannons developed the ability to sink the enemy from afar.
All ships in sight of a capture shared in the prize money, as their presence was thought to encourage the enemy to surrender without fighting until sunk.
The distribution of prize money to the crews of the ships involved persisted until 1918. Then the Naval Prize Act changed the system to one where the prize money was paid into a common fund from which a payment was made to all naval personnel whether or not they were involved in the action. In 1945 this was further modified to allow for the distribution to be made to Royal Air Force (RAF) personnel who had been involved in the capture of enemy ships; however, prize claims had been awarded to pilots and observers of the Royal Naval Air Service since c.1917, and later the RAF.
The following scheme for distribution of prize money was used for much of the Napoleonic wars, the heyday of prize warfare. Allocation was by eighths.
Two eighths of the prize money went to the captain or commander, generally making him very wealthy.
One eighth of the money went to the admiral or commander-in-chief who signed the ship’s written orders (unless the orders came directly from the Admiralty in London, in which case this eighth also went to the captain).
One eighth was divided among the lieutenants, sailing master, and captain of marines, if any.
One eighth was divided among the wardroom warrant officers (surgeon, purser, and chaplain), standing warrant officers (carpenter, boatswain, and gunner), lieutenant of marines, and the master’s mates.
One eighth was divided among the junior warrant and petty officers, their mates, sergeants of marines, captain’s clerk, surgeon’s mates, and midshipmen.
The final two eighths were divided among the crew, with able and specialist seamen receiving larger shares than ordinary seamen, landsmen, and boys. The pool for the seamen was divided into shares, with:
each able seaman getting two shares in the pool (referred to as a fifth-class share),
an ordinary seaman received a share and a half (referred to as a sixth-class share),
landsmen received a share each (a seventh-class share),
boys received a half share each (referred to as an eighth-class share).
An example of how large the prize money awarded could be was for the capture of the Spanish frigate Hermione on 31 May 1762 by the British frigate Active and sloop Favourite. The two captains, Herbert Sawyer and Philemon Pownoll, received about £65,000 apiece,[£115m.at today’s value] while each seaman and Marine got £482–485. [£854,700 – £860,000 at today’s value]
Robert Hall would definitely have benefited from prize money. He was involved with the capture of the French frigate Desirée in Dunkirk in 1799, and later he captured a large French privateer lying in the Barbate River, Spain in 1810.
The following is a book review from the Tablet in 1899. They had supported the Scrope family claim to reviving a long extinct peerage from the court case in 1859, when Simon Thomas Scrope (1790 – 1872) claimed the Earldom of Wiltes. His son, another Simon Thomas Scrope (1822 – 1896) was Fr. Philip O’Bryen’s god-father.
Danby Hall, North Yorkshire
The Scropes Of Danby: A Great Historic Peerage: The Earldom of Wiltes. By John Henry Metcalfe. The Chiswick Press. 1899.
WITH an unbroken male descent from the Conquest, the present head of the House of Scrope, Mr. Scrope of Danby, can look back upon a line of ancestors who have played a varied and conspicuous part in the making of England. During the three hundred years between the reigns of Edward II. and Charles I. the Scropes were in the heyday of their power ; honours fell thick upon them, and they were always to the front in every department of the national life. During this period this single family produced “two Earls, twenty Barons, one Chancellor, four Treasurers, and two Chief Justices of England, one Archbishop and two Bishops, five Knights of the Garter, and numerous Bannerets, the highest military order in the days of chivalry.” The family was ennobled in two branches, Scrope of Bolton, and Scrope of Maskam and Utsall, and its feats of arms whenever the men of Wensleydale were led to battle are still commemorated in many a ballad and folk-song. Perhaps the most distinguished of its individual members was William Le Scrope, Lord Treasurer of England, and Guardian of the Kingdom during Richard II’s absence in Ireland. Fighting under John of Gaunt in France, he was knighted at an early age for valour in the field, and in 1388 was appointed Seneschal of Aquitaine. The next sixteen years were to tell an unbroken story of splendid service royally rewarded, until it may well have seemed that, in Shakspeare’s words, he ” held the realm in farm.” Governor of the Castle and town of Cherbourg, Constable of the Castle of Queenborough, Governor of Beaumaris Castle, and Chamberlain of Ireland, he entered upon the last decade of his life. In 1391, the Castle of Bamburgh was made his for life ; three years later he received the town of Marlborough in lieu of a fee of 200 marks which the King had granted him on “retaining him to abide with him, the King, during his whole life.” In the same year he became the Sovereign Lord of Man, having acquired the island by purchase from the second Earl of Salisbury ; the next year he was made a Knight of the Garter and Vice-Chamberlain of the Household; in 1396 he became Lord Chamberlain ; then he went as Ambassador to France to negotiate the King’s marriage and sign the treaty of peace ; in 1397 he was created Earl of Wiltes and sent as Ambassador to treat for peace with the King of Scotland. Honours continued to come even when the shadow of death already lay across his path, and in the last year of his life he was appointed to the high office of Lord Treasurer of England, Custos of the Castles of Rochester and Leeds, and, finally, Guardian of the Realm during the King’s absence in Ireland. The landing of Henry of Bolingbroke was followed by quick disaster to the King’s cause. The capture of Bristol Castle left the Earl of Wiltes a prisoner in the hands of the invaders, and without the pretence of a trial he was hurried to execution and his head sent to London to be set upon a spike for exposure on London Bridge.
The Earl left no issue, and in the troubled times that followed, during which the family estates were confiscated, no claim to the peerage seems to have been put forward, and it is quite likely that the unusual terms of the original patent soon came to be forgotten. Early in the present century the original charter was accidentally discovered. The discovery in the case of the Devon peerage of a similar charter led to a successful claim to the earldom, and probably suggested to the Scropes that they should take steps to assert what now seemed an evident right.
The charter of King Richard conferring the Earldom of Wiltes ran thus : “To have to him and his heirs male for ever (et heredibus suis masculis in perpetuum).” The usual limitation in such cases is, of course, to “the heirs of his body,” but there are six instances in which there have been grants of English Peerages with limitation to heirs-male—the Earldom of Oxford, Wiltes, and Devon, and the Baronies of Hoo and Hastings, Richmont Grey, and Egremont. The claim was laid before the House of Lords in 1859, and dragged on for ten years. Mr. Metcalfe’s account of this most interesting and important case is disappointing, and at times misleading. It quite fails to give any right idea of either the strength or the weakness of the claim, or even of the constitution of the Court which determined it. After mentioning the time occupied in hearing the case, Mr. Metcalfe says : ” During this time the greatest of the law lords who heard it, Lords Wensleydale and Cranworth, died, and Lords Westbury and Romilly took no part in it. The decision, therefore, rested with Lord Chelmsford, and a new Scotch law lord, Lord Colonsay. Virtually the decision was that of Lord Chelmsford.” As a matter of fact three Peers agreed in rejecting the claim, though on slightly different grounds, and each delivered a separate judgment. Why Lord Redesdale’s judgment should be thus ignored is not apparent. Nor does Mr. Metcalfe seem to appreciate the force of Lord Chelmsford’s objections. Thus we read :
Mr. Fleming, the Claimant’s Counsel, often said that if an instance could be found in which Henry IV. actually spoke of Sir William le Scrope as Earl of Wiltes, it would be of the greatest importance. The letter of Henry IV. containing the words the production of which as evidence during the hearing of the Wiltes case would, according to Mr. Fleming, have carried so much weight, was, at the time, not only in a volume of autographs preserved in the Public Record Office, on vellum —see Rymer, viii., 181—but actually in print in Royal and Historical Letters during- the Reign of Henry IV., edited by the Rev. F. C. Hingeston, M.A., and published by Longman, Green, and Longman, in 1860 !
The document here cited undoubtedly shows that Henry IV. spoke of William Le Scrope as Earl of Wiltes ; and there is evidence that he was so described by one of the King’s ministers on another occasion—but even if this had been known at the trial it would have in no way affected the judgment of Lord Chelmsford. It is one of the inconveniences of Mr. Metcalfe’s book that it does not give the text of the judgments, else the reader would see for himself how Lord Chelmsford would have treated this new evidence. He first addressed himself to the question whether a patent granting an English peerage to a man and his heirs male was a valid patent,. and answered it thus
In considering the patent of creation of the Earldom of Wiltes, I will assume that it is in entire conformity with King Richard’s intentions, and that he had every motive for creating the dignity with the particular limitation assigned to it. The question then presents itself in the simplest and clearest manner whether it is competent to the Crown to give to a dignity a descendible quality unknown to the law,-and thereby to introduce a new species of inheritance and succession. The question put in this way seems to answer itself. The Crown can have no such power unless there is something so peculiar in a dignity, so entirely within the province of the Crown to mould at its pleasure,. that a limitation void as to every other subject of grant, is good and valid in the creation of a Peerage.
This was certainly an extraordinary decision in face of the fact that only a few years before the House of Lords had deliberately affirmed the direct contrary. Lord Chelmsford was, of course, aware of this, but contented himself with saying : ” I cannot agree that the determination of one Committee for Privileges must be a binding and conclusive authority upon another.” There was no law to compel him to respect the decision of Lord Brougham in the Devon case, and so he acted on his own view. And so we have this odd result, that the Earldoms of Devon and Oxford (De Vere) are both held to-day by virtue of a patent which in the Scrape case was declared to be invalid. But there is another and important passage in Lord Chelmsford’s judgment, of which Mr. Metcalfe gives his readers no glimpse. He was of opinion that the grant of the Earldom might have been perfectly valid so far as the original grant was concerned, and yet be wholly void in relation to his successors:
It could only be after his death, and if a successor appeared to claim, the title, that an objection to the extension of the dignity beyond the life of the original possessor would possibly arise.
The twofold ground of the decision appears clearly enough from its closing words :
Whatever may have been the right to the Earldom of Wiltes of William Le Scrope during his life (and as I have already acknowledged, I see no reason why the title to this extent should not have been conferred by the grant), yet as the prescribed course of succession was one unknown to and unsanctioned by the law of England, and which nothing but an Act of Parliament could establish, the Earldom of Wiltes ceased to exist at all events upon the death of William Le Scrope, and the claim of a right of succession to the dignity necessarily fails.”
It is apparent, therefore, that the new evidence to which at the time of the trial Mr. Fleming, a great authority, attached so much importance would not in fact have had any weight with Lord Chelmsford. It proved only that William Le Scrope was reputed an Earl even by his enemies, but Lord Chelmsford was ready to admit the fact. There is little doubt that Lord Chelmsford was wrong on both points. The validity of the patent ought not to be open to question in view of precedents and the decision in the Devon case ; and it is still more clear that the patent was either good or bad, that if it was made void by illegal limitations as far as successors to the title were concerned, it was also bad and useless from the beginning. Assuming, as we may confidently do, that if the case were reheard to-day the validity of the original patent would be allowed, it only remains to point out that the peerage could be forfeited only by either a legal judgment for treason or by Act of Parliament. The unfortunate Earl of Wiltes was never tried at all, and certainly no Act of Attainder was ever passed against him after his death. The first Parliament of Henry IV., summoned by ante-dated writs in the name of Richard II. when that monarch was already in captivity, might well be regarded as merely an assemblage of rebels ; bat that point need not be pressed, for all they did in regard to the Earl of Wiltes was to pass an Act of Indemnity and so lend sanction to the execution and the confiscation which followed. An execution without trial and an unlawful seizure of estates were thus shielded from all question, but it never occurred even to the usurper to accuse of treason a man who had died for his faithfulness to his anointed Sovereign.
Lord Chelmsford laid stress on the fact that no successor came forward to claim the title. If the patent was valid, the title could not lapse merely because no one claimed it; and the fact that the estates, which alone made the earldom a tolerable burden, had been confiscated is at least a plausible explanation. At any rate the burden of proof does not rest with the claimant; he is entitled to ask how peerage was ended, and when.
Lord Redesdale took the bold ground that the case was res judicata. He justified this contention by appealing to the record of the proceeding already referred to. Henry IV. and the Lords Temporal on the petition of the Commons approved of what had been done in the case of the Earl of Wilts, and, as it were, passed a sponge over the transaction. But in the record William Le Scrope is described not as Earl of Wiltes, but simply as a Knight. Lord Redesdale argued that the Earl, if his title had been good before his execution, would have claimed trial before his peers, and that in any case, after his death, the House of Lords would have raised the question as affecting one of their own privileges. It is enough to point out that the Earl was executed without trial of any sort, so that the question of privilege which concerned the form of trial did not arise. Moreover, Lord Redesdale proves too much, for it is absolutely certain that William Le Scrope was recognized as Earl of Wiltes during his life. Nor does the fact that he was misdescribed in the record count for much. In the same record Lord Scrope of Bolton is described simply by his name, and as a knight ; and in the rolls of 6 Henry IV. appears a petition from Lord Scrope of Masham, who is described as ” Stephen Le Scrope of Masham, chevalier,” and yet he was admittedly a Peer, and attended Parliament in that capacity. However the Earl of Wiltes may have been described on an occasion when no one would be likely to be particular about giving his due to the enemy of the new King, it is certain that judicial proceedings after a man’s death could have no legal results, and of the only other way of destroying the right to the Earldom, an Act of Attainder, there is no trace. Lord Colonsay took much the same ground as Lord Redesdale, and also insisted on the ,general argument that the peerage would have been claimed before unless those apparently entitled in the past had known that they had no valid claim. But it is time we got back to Mr. Metcalfe’s book.
Although its value would have been greatly increased by a more detailed reference to the judgments of the three Peers who decided the case in 1869, the volume is a thoroughly interesting one, and abounds in interesting matter illustrating the history of the family ; and in the shape of ” Notes” at the end of the volume the author has collected a great deal of curious information, which is not without its side-lights upon the history of the Metcalfes. Certainly every one who reads the volume is likely to associate himself very warmly with the author’s hope that the Crown may yet be advised to restore to the present owner of Danby this ancient dignity of his House, the premier earldom of England. Only why, publishing in 1899, does Mr. Metcalfe suggest that this act of grace might suitably take place in “this Jubilee year,” 1897?
The above text was found on p.14,7th October 1899, in “The Tablet: The International Catholic News Weekly.” Reproduced with kind permission of the Publisher. The Tablet can be found at http://www.thetablet.co.uk .
