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Re: [Jacobite] Was James Fitz James, 1st Duke of Berwick ever "attainted"?

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  • Steven Robb
    If only he had led the 15 instead of Mar. s From: Stelios Rigopoulos To: Jacobite@yahoogroups.com Sent: Thursday, 2 August
    Message 1 of 3 , Aug 3 7:31 AM
    • 0 Attachment
      If only he had led the '15 instead of Mar.

      From: Stelios Rigopoulos <stelios.rigopoulos@...>
      To: Jacobite@yahoogroups.com
      Sent: Thursday, 2 August 2012, 5:52
      Subject: [Jacobite] Was James Fitz James, 1st Duke of Berwick ever "attainted"?

      A "perennial" issue, often asserted with some assurance by those whose who dabble in Jacobite history, in order to bolster the (non-existent) credentials of the de facto "reigning" dynasty of the "United Kingdom" and "the Commonwealth", is the so-called attainder of James FitzJames, 1st Duke of Berwick-upon-Tweed, the natural and loyal son of KING JAMES II & VII. Here below is reproduced, tale quale, an interesting, relevant post on another online forum "Peerage News". The late Dermot Morrah, a journalist of the Old School and a formidable heraldic expert (he held the office of "Arundel Herald Extraordinary"), with alacrity accepted my invitation to a Birthday Party, that I organised in honour of HIS late MAJESTY KING ALBERT on May 3, 1969, attended by well over 100 people, both Jacobites and Bavarians resdient in London.


      Letter to the Times 26 September 1953:
      Sir, Among the many titles of the late Duke of Alba I notice that you
      do not enumerate the dukedom of Berwick. Nor does the Almanach de
      Gotha. Nevertheless Don Jacobo was frequently described, with his own
      evident consent, as Duque de Berwick y Alba, notwithstanding that the
      English dukedom was forfeited by attainder after the battle of the
      Boyne. Some years ago, when I made a passing allusion to this fact in
      your columns, the Duke sent me through your Correspondent in Madrid a
      very courteous message explaining the apparent anomaly. He said that
      the dukedom of Berwick which he held was not the English creation of
      James II, but a dignity of the same title in the peerage of Spain,
      which had been conferred upon the first Duke by Philip V after the
      English Parliament of William and Mary had extinguished the former.
      I do not know what is the limitation of King Philip's creation; but if
      it is in the customary Spanish form it will presumably now carry the
      peerage to the heir general with the late Duke's other honours. But
      the dormant claim to the English dukedom (which Parliament could at
      any time revive, as it has revived other Jacobite peerages, by a
      simple repeal of the Act of Attainder) passes to the heir male, who I
      presume is his nephew, the Duke of Penaranda. Or did King Philip
      foresee his possible separation, and assimilate the limitation of the
      Spanish dukedom to that of the English dignity it replaced?
      I am, Sir, your obedient servant, DERMOT MORRAH, Arundel Herald

      Letter to the Editor of The Times 29 September 1953:
      Sir, Mr. Dermot Morrah's interesting letter on the dukedom of Berwick,
      published in your columns on September 26, mentions that the Almanach
      de Gotha did not include the dukedom among the late Duke of Alba's
      titles. Perhaps I can do something to explain this omission in the
      case of the Gotha, as I was partly responsible for it. Before the war
      I used to proof-read and correct the entries in that publication that
      concerned the English ducal families, and in 1939 I persuaded the
      editor to alter the heading of the article on the FitzJames family
      from Berwick to Alba. My reasons for this were the Act of Attainder of
      William and Mary's reign, the fact that the late Duke was generally
      and officially known by his title of Alba, and the desire to avoid any
      possible confusion with the barony of Berwick of Attingham, created
      for Noel Hill in 1784 and held by his descendants until its extinction
      in January, 1953. A reference to Berwick was, of course, retained in
      the index and proofs of the modification sent to the late Duke.
      I am, Sir, your obedient servant., STANLEY B-R. POOLE, formerly
      assistant editor, Debrett's Peerage

      Article in The Times 15 February 1954:
      Readers of Sir Charles Petrie's recent Life of the Marshal Duke of
      Berwick will recall that James FitzJames, the elder of the two
      illegitimate sons of King James the Second by Arabella Churchill,
      sister of the first Duke of Marlborough, was created by his father
      Duke of Berwick upon Tweed in the peerage of England in 1687. Not long
      after the King's flight, he too fled to France and later commanded his
      father's forces in Ireland, but in 1691 entered the service of the
      King of France and so continued for the rest of his life.
      The Complete Peerage, following other Peerage books, states that he
      was attainted in 1695, whereby his honours became forfeited. Sir
      Charles Petrie accepts this and attributes to the fact some historical
      significance. If the duke was in fact attainted, his heirs could not
      claim the dukedom unless the attainder should first be reversed by Act
      of Parliament. It was with the possibility of such reversal in mind
      that the late Duke of Alba, the Duke of Berwick's heir male, asked
      the late Windsor Herald, Mr. A. T. Butler, before the war, to
      investigate his possible claim. However, the researches then
      undertaken led to an unexpected result, and made it appear doubtful
      whether the first Duke of Berwick ever, in fact, suffered a legally
      valid attainder at all.

      Stebbing's edition of Sandford's. Genealogical History of the Kings
      and Queens England, published in 1707, says that the duke "continuing
      in Arms... In the service of the French King against the Crown of
      England, he was in the year 1695 outlawed for high, treason." In fact,
      however, no steps seem to have been taken against him until the plot
      to kidnap or assassinate William III was brought, to light in
      February, 1695-96, whereupon, on the 23rd of that month, the King, by
      the advice of the Privy Council, issued a proclamation
      requiring all his loving subjects to discover, take, and apprehend 29
      persons named, who, according to information given upon oath, had
      entered into a horrid and detestable conspiracy to assassinate and
      murder his Majesty's sacred person. The first in the list was James,
      Duke of Berwick, and the fact that he was so described in a royal
      proclamation seems a clear indication that he had not at that date
      suffered attainder. Berwick's own memoirs show that he had in fact
      arrived secretly in England in February, 1695-96, on a mission from
      his father and Louis XIV, to explore the feeling among the English
      Jacobites and the possibility of exploiting the weakened position of
      William after Mary's death, by an insurrection in favour of James.
      Three days after his arrival, however Sir George Barclay told him of
      the plot to capture William in a narrow lane between Brentford and
      Turnham Green where his coach could not turn. The plan was betrayed to
      William by Thomas Prendergras, or Prendergast, one of the
      conspirators, and the proclamation for their apprehension already
      mentioned took for granted that their plan was to murder, not merely
      kidnap, the King.

      Berwick had in fact stayed in England only a few days, one of his
      reasons for swift departure being “that I might not be confounded
      with the conspirators, whose design appeared to me difficult to
      execute." Sir Charles Petrie rightly points out that there is no proof
      that the conspirators intended William's death or, that, if they did,
      they communicated this part of their design to Berwick. Within a short
      time after the proclamation, six of the 29 were apprehended, tried,
      and executed, while five more having given evidence for the Crown,
      were pardoned. Of the rest, a number were named in an Act of
      Attainder, passed in the Parliament of the eighth and ninth year of
      William III (1696-97), but the name of the Duke of Berwick was not
      among these. However, on 11 November, 1697, a fresh proclamation was
      made of a reward of £1,000 for the apprehension of James, late Duke of
      Berwick and others "all outlawed or attainted of high treason for
      conspiring to murder the king and reported to have returned secretly
      to England." With the exception of the Duke of Berwick and two others,
      all those named in this proclamation are also named in the Act of
      Attainder. The position is thus seen to be decidedly obscure and the
      forfeiture of the dukedom at least doubtful. It seems unlikely that
      an attainder by Act of Parliament has been overlooked, but some
      judgment of outlawry or the like with the same effect may yet be
      traced. However, if further research should establish that there was
      in fact no forfeiture of the dukedom, an interesting field of inquiry
      opens into the possible reasons for so ambiguous a policy. If there
      were no forfeiture, then it would seem that the late Duke of Alba was
      in fact also Duke of Berwick upon Tweed in the peerage of England, and
      the dignity is now vested in his heir male, the Duke of Penaranda.
      Unhappily, Mr. Butler's researches were interrupted by the war and
      never afterwards resumed, but it seemed desirable that their upshot
      should be placed on record and for this the consent of the heirs of
      the Duke of Alba was sought and willingly given.

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