Today we’re talking about pedigree hearsay and the genealogist’s evidence toolbox. Tonight’s episode falls back on the old pedigree hearsay doctrine to answer a few practical questions. When family history is preserved in stories, Bible entries, letters, parish registers, wills, census returns, and even civil registration, how do we decide what weight to give to each source. time we talk about whatever comes into our head building an audio library for genealogists with too much time on their hands judges in pedigree cases had to confront exactly the same problem that genealogists now face how to evaluate second-hand family information when the people with the first-hand knowledge are dead. So in this episode we explore the old legal doctrine of pedigree hearsay, a rule that sometimes allow courts to admit family stories, Bible entry and other second hand evidence to prove birth, marriage, death, legitimacy and descent. But what kind of family evidence would a court trust? What kinds would it distrust? And what can that teach genealogists about valuing the records we use every day. Please remember I’m not an expert or a professional. I’m an enthusiast like you who has spent more than 40 years digging up his family tree so often in the wrong place. And these episodes, well they’re really no more than me sharing with you what I have learned along the way. And I do want to emphasize, I am talking about ancestor hunting in England. Recommended by Who Do You Think You Are magazine and featured on BBC radio. Here is Malcolm Noble’s Talk Genealogy podcast, the podcast for the genealogists with too much time on their hands. Here is your presenter Malcolm Noble.

02:59

Now I do just want to add a little bit of a warning. Tonight’s Natter will likely go on much longer than usual. This is because it’s important. It can, I hope, make us all better genealogists. Well that’s quite a low bar where I’m concerned and because it is important I want to take things steady slowly so we end up understanding what I’ve been chuntering on about. What I want to set out is what is pedigree hearsay? What does it mean in a historical legal practice and we’re going to look at it in that serious way and allied to that why pedigree was treated as an exception to the hearsay rule we’ll look at what safeguards the courts imposed connections to the familyations that are made before the dispute and the statement how close it is to concerning pedigree. We’ll then apply those principles to genealogical records and that’s pretty much all records as I say it goes from family entries in Bibles even to civil registration and everything in between. We will address how to weigh that evidence rather than merely collect it. I’m not going to turn this into a technical lecture of law evidence. If you want to know about the law then you ask a lawyer, you don’t ask me. Instead I want to use the old legal doctrine as a way of thinking about genealogical records, the ones that we use every day. The courts had to decide when family hearsay could be trusted and we can use their same questions to become better historians of our own families don’t forget if everyone asked a friend to follow the podcast we double our listeners overnight now it’s time for tonight’s quiz okay we’ve got three questions for tonight’s quiz. Okay, we’ve got three questions for tonight’s quiz. Question one. First one, what is a cat slide roof? A cat slide roof, what does it look like? And what does it suggest? Here’s the second question in tonight’s quiz. Question two, what’s the difference between the rector and the vicar? And the curate, come to that Curate’s the easy one What’s the difference between a rector and a vicar? And a curate And the third question tonight And now question 3 What was the significance of the Beer House Act of 1830? Specifically, how did it change village life? So that’s three questions. The cat’s slide roof, the difference between a rector, a vicar and a curate, and the Beer House Act of 1830. What major change did that bring in check out the website for downloadable show notes and now on with the episode

06:31

the lesson of pedigree hearsay is not that family stories are unreliable and official records are perfect, far from it. It is that every source has to be weighed. Who said it, when, why, and how close were they to the facts? So, what is pedigree hearsay? Hearsay is what one person says heard another person say it can also be what the other person wrote down this means that it cannot be tested in court under cross-examination because the other witness isn’t available so it is either inadmissible straight out or of lower value. And there is a difference here between criminal law and civil law. Officialy, they say that hearsay is an out-of-court statement offered to prove the truth of what it says. But that seems pretty close to gobledygook to me, so I stick to the one that I’ve always heard. so I stick to the one that I’ve always heard. The point is that hearsay goes against natural justice because the original speaker cannot be cross-examined. Courts were historically, and still are, suspicious of hearsay because of this vulnerability. But pedigree hearsay is different, because pedigree facts – births, marriages, deaths, legitimacy and kingship – often survive through family memory, domestic record-keeping, inscriptions, even family correspondence, the reputation within the family, and statements by deceased relatives. In many cases, there was no better evidence available. So the problem that the courts faced in family history disputes were that the events were often old, the key witnesses are dead, the official records might be missing and the family status might turn on household knowledge rather than public documentation. So in this way the courts had to develop a limited expectation. Some hearsay, said the courts, could be admitted to prove pedigree. So, pedigree hearsay, to repeat myself, means second-hand statements or family records about family history, things like who someone’s parents were, whether a couple married, whether a child was legitimate. When the owner of that information, the relative, had died, in which case the courts were prepared to admit hearsay under certain conditions.

09:36

Now, regular listeners to the Talk Genealogy podcast will already be familiar with the massive scale and dramatic twists of the Barclay-Peerage case. For them, turning to the Whitelock and Baker case is like looking at the exact blueprint that made the Barclay consideration possible. Don’t worry, we’re going to go through this. What is especially nice about the Whitelock case is it gives me a chance to introduce Lord Chancellor Eldon. He was the judge in the case who set out some rules and he is a fascinating character we’ll talk more about him later on so now we’re talking about the Whitelock versus Baker or Whitelock and Baker as it’s more commonly known as like almost all pedigree cases of the era and we’re talking about 1807. This was a high-stakes English Chancery suit over inheritance of land. The plaintiff needed to legally map out a family tree to prove that they were the lawful heir. To do this, they tried to introduce a deposition, a formal written statement, made by an attorney who had worked closely with the family. Now the attorney was dead by the time of the trial but while he was alive he had written down a detailed account of the family’s genealogy based on what the family members had told him. The opposing side objected, claiming that this was classic, inadmissible hearsay because they couldn’t test it under cross-examination. This presented what has been called Lord Eldon’s famous dilemma. So famous that I’ve never heard of it. Lord Eldon was faced with a massive problem. If he strictly banned all hearsay, it would be practically impossible for anyone to prove their ancestry past a couple of generations, because people die and birth certificates at this time did not exist in a modern sense. However, if he allowed any old story about a family tree to come to court, people would just manufacture fake family histories to steal estates. To solve this problem, he admitted evidence, but used his judgment to lay down the philosophical and practical limits of the pedigree exemption.

. Lord Eldon’s judgment it contains some of the most frequently quoted prose in evidence law. Now, these are the legal principles that he established and that we should use as well in our own consideration. He established two major ground rules. The doctrine of natural effusion. The Doctrine of Natural Effusion Lord Eldon explained that while we can trust a relative’s even casual chat about their family, even if they can’t be cross-examined, he stated that the family descriptions were admissible when, quoting here, they are the natural effusions of a party who speaks upon documentation of an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth. In plain English, if a grandfather is casually writing names in a family Bible by the fireplace, he has no reason to lie. It is a natural effusion of family history. But if he writes it down knowing that a lawsuit is brewing, his mind is no longer even. He has a temptation to twist the truth. This was solidified into the rule of antilitum motem. Statements must be made before the controversy arises. I’ll just think of the implications of that for a will and we will come back to that later. Now this is the exact point on which the plaintiff in the Whitelock case actually failed. He established the principle but he failed the test. The plaintiff argued that because the dead attorney knew the family intimately, his notes should be counted as family tradition. Lord Eldon rejected this. He ruled that the exception is strictly limited to blood relatives and spouses. He noted that if you extended the exception to look at what friends, servants and medical men said, the rule becomes dangerously broad and an attorney, no matter how close, is a professional agent. He’s not a member of the family lineage.

18:01

Now the Berkeley case which followed wouldn’t have had any legal framework to tackle its own massive web of lies spun by the Earl of Berkeley, but under Whitelock the law established that family history is inherently reliable but only when spoken from the heart of a relative, before lawyers enter the room. Now, the family whisper is at the absolute heart of the Barclay case. This was 181. It represents the strict line that judges drew regarding ante litem motum, that is before the lawsuit is started. The judges ruled you don’t need a full-blown active lawsuit in a courtroom to disqualify family hearsay. Even a mere whisper of a controversy behind closed doors is enough to ruin the legal reliability of anything a family member says afterwards fundamentally because they may have skin in the game. Here is a dramatic story of that whisper and how it changed evidence law. The Barclay case centered on a massive estate and the earldom of Frederick Augustus Barclay, the fifth Earl of Barclay. The Earl had lived for years with a woman named Mary Cole. Together they had several children. Eventually they had a formal undisputed church wedding in 1796, and they had several more children after that. Under English law, only the children born after a legal marriage could inherit the earldom. This meant that older children were legally illegitimate and could inherit nothing, while the firstborn after the 1796 wedding stood to inherit everything. To save his oldest and favourite son, William, from being disinherited, the Earl dropped a bombshell. He claimed that he and Mary had actually been married in a secret, private ceremony back in 1785 long before the older children were born. And to prove this 1785 marriage William the eldest son all right not the original earl now the eldest son tried to enter a deposition into evidence that his father, the Earl, had given under oath in a completely different minor court filing in 179.

21:14

So here we have a deposition by the father saying that the marriage did take place in 1785. In this document the Earl solemnly swore that the 1785 marriage was real. Now on paper this looks like the ultimate pedigree evidence, a direct statement by a deceased father about his own marriage. However, the House of Lords dug deeper and discovered what had been happening in the household around 179, the time of the second marriage. They found out that by 179, people in high society were already gossiping. Relatives were questioning the legitimacy of the older children and the Earl was quietly panicking about his legacy. Even though no one had sued anybody yet in 179 the controversy already existed in the shadows. So here is the logic of the whisper ruling from the House of Lords. The judges famously rejected the Earl’s 179 statement. They explained that the moment that a dispute is born, even if it’s just a private family argument or a hushed rumour, a whisper, the parents’ mind is no longer neutral. They have a massive incentive to fabricate a story to protect the kids of their estate. So two phrases here to remember, anti litem motam, the rule that the statement must be made before the lawsuit has started or before there is a whisper of controversy. And that is because the court held, if the witness wipes down something, knowing that there is controversy or two sides to an issue, his mind is no longer even. He has a temptation to twist the truth. And therefore, his evidence needs to be subjected to cross-examination, to testing, and that can’t be the case if he’s dead. And because of that temptation, then pedigree exception does not apply when there is skin in the game. Now the judges clarified the rule with a vivid analogy that legal scholars still quote today. Suppose a man is broadsided by a carriage on the street. If he immediately shouts to a bystander that driver was looking the wrong way, that statement is reliable because it’s spontaneous and it’s a reaction. That statement is reliable because it’s spontaneous and it’s a reaction. But if he goes home, sits down, realizes he can sue for money and then writes the driver was looking the wrong way, it is inadmissible. The birth of the dispute creates a motive to lie. And of course we are saying it’s inadmissible if the witness is not there to be cross-examined because he’s died.

24:49

In the Barclay case, the House of Lords ruled that the Earls 179 statement was written after the controversy had begun to brew. The whisper of illegitimacy had already corrupted his neutrality. Now I want to bring this back, imagine how that impinges upon our own judgement of the weight that we would give to a statement, for example, written in a will. So what happened in that case? Well, because the Earl’s statement was thrown out, the family could not prove the secret marriage of 1785. The eldest son, William, had grown up believing that he would be the next Earl, but he was legally declared a bastard by the House of Lords. The title and its vast estates went to his younger brother, Thomas, the firstborn after the official public wedding of 1796. In a bitter twist of irony, Thomas felt so terrible that his elder brother being publicly humiliated and stripped of his birthright, that he refused to ever use the title of Earl for the rest of his life. But we need to go a bit further with pedigree here, say, and I’m sorry this is rather involved, but I’m trying to take you along with me. I don’t know how successful I am, and because it is important and it does help us to evaluate evidence. There’s a couple of things that I want to emphasize at this stage before moving on, and believe me we’ve hardly started. This is not saying that anything anyone said is admissible, subject to those two conditions. Pedigree hearsay is not any family rumor whatsoever, or any old note found in a drawer, or any claim made by a descendant a century later. It is constrained by rules. It overlaps genealogy beautifully because the genealogist constantly asks was this source created close to the event? Did the writer have personal knowledge? Was there an incentive to lie or embellish? Is this a family tradition or legal proof?

27:19

Now the court established three safeguards. So here I want to introduce the three classic safeguards and immediately translate them into genealogical method. And the first safeguard is connection to the family. The legal idea is that the declaration had to come from someone connected with the family, usually, almost always, a blood relative or marriage or at least someone closely embedded in the family circle, but we know attorneys are excluded from that. Generally hearsay is not admissible so we’re now setting out guidelines about how and why we’re going to make an exception and so we have to justify they saw the judges had to justify it and they said that family members were thought likely to know who married whom belonged in this in the household whether there had been an earlier marriage, who was born before or after a move, and whether a child was accepted as legitimate. So as a genealogical translation if you like, let’s ask was this person in a position to know the family fact. Was the person writing this document or making this statement in a position to know the family fact? Now you may want to relate that to a tombstone. Was the stonemason in a position to know the family fact probably a generation after the death? Ask yourself the question. However, generally speaking, a mother recording a child’s birth in a Bible is potentially strong. Bible, it’s potentially strong. A grandma writing from memory 70 years later, still useful but it’s weaker. A neighbor repeating local gossip, much weaker. A son writing to his sister about their father’s death, potentially very strong. So it has to be someone within the family, that’s the first safeguard. The second safeguard, just to recap, is ante litem motem. The declaration has to be made before the controversy arose. Judges were, still are, wary of family statements once inheritance, legitimacy, land or title was in dispute. The idea was the record made naturally before a quarel is more trustworthy. A statement made after the fight begins may be self-serving and we have to apply that safeguard because it cannot be tested in court the witness is dead the genealogical translation here we want to ask ourselves was this document this statement created naturally in the ordinary course of family life or under pressure from a dispute. And I repeat, just think of the implications for a will. But a Bible entry made when a child was born, yes, it’s stronger. A pedigree written after the inheritance fights starts is weaker. A letter written at the time of a marriage is stronger. A sworn statement produced once money depends upon the result, well that’s more suspect.

31:30

So safeguard one must be from within the family, safeguard two must before the controversy started, safeguard three it must concern pedigree. The statement had to relate to birth, marriage, death, legitimacy, kingship, descent and family relationships. Not every old family document proves kingship. The document may show co-residence, affection, association, financial dependence, social connection, without actually proving biological parentage, legal legitimacy, an exact relationship. So the genealogical translation here is, what exactly does this source prove? does this source prove? So someone living in the same household is not the same as someone being a child of the head of the household. My cousin John may not mean a first cousin or a cousin at all actually and beloved daughter on a gravestone may not establish biological relationships. Pointers? Yes. Something to investigate? Yes. But ask yourself before you accept it as proof. My servant Mary tells you a household presence, it doesn’t mention pedigree. Hey Malk, what’s coming up? Yes indeed, let’s have a look at what’s coming up. The next episode will be about town and parish directories. Following that we have one on evaluating a Paris register and further in the distance we’re preparing one on how to interpret just three or four lines from archive catalog and what that tells us about the growth of use in land transactions. Fairly important episode that can take our skills a great deal further forward. Check out the website for downloadable show notes. Malcolm Noble’s books on Nottinghamshire history include A Plague in Bleasby. A Nottinghamshire village survives its summer of death. The plague of 1604 reduced the population of Bleasby, Nottinghamshire Village survives its summer of death. The plague of 1604 reduced the population of Bleasby, Nottinghamshire by 30 percent, a demographic deficit that would not recover for two generations. Family documents and local records bring detail to this figure, and when placed in the context of broader history, offer an understanding of the village social and economic dynamics. The Talk Genealogy podcast looks at different techniques and interesting sources for family historians, or perhaps a discussion about early genealogists, the pioneers of our science. Sometimes we look at how a famous character in history shows us something particular about genealogy, building an audio library for genealogists with too much time on their hands.

34:46

In the second half of tonight’s talk, I want to take those principles that we set out in the podcast and show how we can use the doctrine of pedigree hearsay to help us evaluate common sources that we find in our evidence toolbox. It may prompt us to look quite differently at one or two, but as we go through them, I don’t want us to think in terms of this is a good source, this is a bad source. I want us to see how we can test each source against the guidelines and against those three principles that we’ve mentioned. And when we think about the family Bible, which is our first case, we’re immediately drawn to the Gardner peerage case, when Henry Fenton Jardice produced a large worn Bible that had belonged to the family for decades in order to prove his case for peerage. Inside its front sleeves were entries recording the births and marriages in a single steady hand. The committee examined the handwriting, the ink and the sequence of the entries, and they noted that the dates had been written before any dispute arose and that the writer, believed to be a close relative, had a natural knowledge of events. Because the entries were early, domestic, and apparently unaltered, the committee accepted them as pedigree evidence, placing them alongside Paris registers and the family reputation. registers and the family reputation. The Bible did not decide the case alone, but it did form part of the evidential foundation on which the claimant’s legitimacy rested. The courts trusted such Bibles for practical reasons. They were created for family use, not for litigation or argument. So they were thought to be free of distortions of self-interest. They were usually written by the parents or close kin, people who knew the facts directly, and they were difficult to tamper with. Changes ink, erasure or additions between the lines were easy to detect. And in an era when parish registers were incomplete or lost, the family Bible could often be the only surviving record of a birth or a marriage. Today, obviously, their evidential force has diminished, particularly with civil registration and the availability of DNA. But a Bible entry can still be admissible under the old pedigree exemption, but it is now treated as ancient document, useful only when better evidence is missing, and it’s weighed cautiously against the probability of later additions or family myth-making. When we use them, we must bear in mind that they can be problematic, or this is when entries that might be copied from an earlier Bible. Entries that may have been written at once decades later. We need to look for different hands that may have added or corrected entries. And the whole provenance of the book may be weak. We should also check for loose pages. And those are the normal ways of interrogating a source such as the family Bible.

38:32

Let’s look next at tombstones and monumental inscriptions. Again these often preserve death dates don’t they? Sometimes they give the age at death. Maybe they identify the spouse and the children, parents or even maiden names. And they can place multiple family members in one burial plot. However, there are risks. A stone may be erected long after death. Inscriptions may contain rounded ages or family mistakes. There may be modern transcriptions that can introduce error and the commemorative language can sometimes overstate certainty. So when we say probably born or probably aged 89, it comes out as definitely aged 89. Now a tombstone is often excellent evidence of commemoration, and that in itself is valuable. It can also be good evidence of death and family grouping, but should be checked against the burial registers, the death certificates, probate and obituaries. Now in order to test this in my own circumstances, I counted a number of tombstones and I took the age, the year of death and the year of the birth and I checked them against the parish registers and actually they come out as quite reliable, a lot more reliable than I was expecting. But let’s look at another source, let’s look at census returns and see how they match up against the pedigree exceptions rule because after all because in some cases these can be hearsay can’t they these can be parents giving the ages of children for example and here I think the risk is not so much the intention to mislead or even dishonesty amongst the people telling the enumerator the information. I think it says a lack of respect for what is happening. There’s almost a sense that census returns are an example of the state being nosy. And what do you want to know for that sort of approach therefore people are less careful in the information that they offer we find that ages can drift birthplaces can change relationships may be simplified the person offering the information often doesn’t check if you think that mother-in-law was born in London then that’s what you’d say.

41:31

Now I won’t say too much about parish registers because I’m going to do a podcast episode strictly related to the value of information found in parish registers coming up in the next month so we’ll put that discussion to one side but let’s talk about wills probate and administrations okay these can be so useful can’t they because they usually identify the spouse the children married daughters siblings nephews and nieces even, as well as the executors and the guardians and they tell us all about the property transmissions. The trouble is they are very often are not even handed. Okay, it may be that the taster wants to make a point or wants to justify what he’s doing. So he’s at best selective with the truth. So we do need to test it very carefully against the old standards. All right. We begin by asking what is exactly being stated and by whom. and then we apply the old tests of how close are they, are they contemporaneous, have they got skin in the game, and we look for corroboration. interesting issue. Here some letters were submitted as evidence to show that the person in receipt of the letters was mentally competent. The letters were offered not for the truth of their contents but to show that the writers treated the taster as sane implying that they believed him to be competent. Now then, think about it. In this case, it was inadmissible. Pedigree hearsay did not apply because the point of the letters was not genealogy. It was not about pedigree. It was about, if you like, the substance of the character. And that is outside the very strict rules that people used when they were assessing pedigree hearsay. And to me, probably the weakest of all these traditions is oral tradition, family remembered stories. Now, these can be applied in the case of pedigree hearsay but we need to be sure of what is being claimed what is being said and who said it and how close they were to the events and also of course why they’re saying it. So my grandmother always said that were descended from… that’s what is exactly being said there. There was a first marriage that nobody talked about. Is that evidence? The family came from Ireland after the famine. The child was raised by grandparents because the mother died. The eldest son wasn’t really the eldest son. And we can see how these become, if you like, a little bit weak, or we need to be cautious of them because the stories become simplified they collapse generations the improved reputations and they hide scandal very often they submit one John Smith for another John Smith and they turn suspicion into certainty. So if we’re going to treat these as pedigree here, say, we need to be very sure of who said it, how close were they to the events, and what was actually said, not what was actually meant, what was actually said. And did they have skin in the game? Because very often, you know, we won’t be talking about first-hand memory, we’ll be talking about household reputation, a very much later retelling. And how did the relator learn about it where does the story originate from