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Berry's Kentish Genealogies.

BERRY V. NICHOLS AND ANOTHER.

This was an action for an alleged libel, published in the Gentleman's Magazine, in August, 1829.

[Nov.

at Arms, of Rouge Croix, Rouge Dragon, with whom he (Mr. Brougham) had not and a personage of the name of Portcullis, been before acquainted; their presiding deity being the Earl Marshal, the very "God of Arms!" These personages were, it appeared, jealous of the plaintiff and of his interference with their mysteries. The first part of the Kentish genealogies was published in the course of last year; and in the month of August in that year the article of which Mr. Berry complained was published by the defendants. It was quite clear that this article, though it was signed with the initial "G." only-perhaps it meant "Garter King at Arms "had come from no other quarter than the College of Arms, which, according to the defendants' own account, was a place of great antiquity, and had been long known as the registry of the pedigrees and arms of the nobility and gentry. In the same number of the Magazine which contained the criticism in question, was published, under the review department, some observations on a work, entitled Nichols's Autographs, lately published by the defendants themselves. Those ob.

Mr. BROUGHAM stated the case for the plaintiff. His client, he said, was a person who had published a book, and the libel of which he complained purported to be a criticism upon that book; but, under the mask and in the shape of a criticism, it was an attack upon his (the plaintiff's) own personal character and conduct. He (the learned counsel) was willing in the outset to admit that the utmost latitude was allowable to reviewers, in making remarks upon what they conceived to be the merits or demerits of any work which an author thought proper to bring before the public; and it was not merely a right, but it might be a duty for them so to do, and this was as full an avowal as his learned friend the Attorney-general could desire on behalf of the defendants; but it by no means followed-God forbid it should-that a man, by publishing a work, put it in the power of another to attack with impunity his personal character for honesty and veracity, from motives of jealousy or ri-servations were headed "Nichols's Autovalry. Whether the remarks published by the defendants had been indited in the fair and ordinary spirit of public criticism, or whether they were of a slanderous and libellous character, and an unfair attack upon the plaintiff personally, it would be for the jury to determine when they should have heard the facts, which he should now proceed to detail to them, and call witnesses to prove. The plaintiff, Mr. Berry, had been many years employed in the College of Arms, London. He was not a member of that corporation, but was employed in the office; first under Mr. Harrison, the then register, and afterwards of his successor, Mr. Sy monds, who was appointed to the situation by his Grace the Duke of Norfolk, on the resignation of Mr. Harrison, many years ago. The plaintiff continued to perform the duties attached to his office for a period of fifteen years, and he naturally became attached to heraldic pursuits,-pursuits which were undoubtedly of great interest to some people, though whether or not they were of so much importance as some persons ascribed to them he (Mr. Brougham) was not prepared to say. The plaintiff (Mr. Berry) having devoted a good deal of time to this art, or science, or branch of literature, if it might be so called, had published several works on the subject of heraldry and genealogy; and some time ago he announced for publication a work entitled the County Genealogies; beginning with the genealogies of the county of Kent. The zealous heralds, however, did not think that he was qualified to interfere in these high matters, which in their estimation formed the proper and exclusive province of Clarencieux, Garter King

graphs, parts 9 to 11," and contained a dissertation upon the manner in which a man's character might be discovered by his haudwriting. God forbid, however, that character should be judged of by hand-writing, for if it were, he (Mr. Brougham) and many of his learned friends around him would, he fearel, appear to have very bad characters; his learned friend the Attorney - general's character would appear to be very tiny in comparison with that large space which he now occupied in the country; and his (Mr. Brougham's) character would, he feared, prove rather irregular. The observations upon Mr. Nichols's book on Autographs commenced in these terms:-"Our attention having been much occupied by this valuable and elegant work, we have, in ruminating upon it, attempted to discover traces, if any, between hand-writing and character;" and after giving some extracts from the book, the writer said, "Here we shall leave this work, and can say conscientiously that it is curious, interesting, and valuable." Now he (Mr. Brougham) had not the least objection to make to this article. All reviewers were allowed to speak favourably of their own works; but he did wish that the author of this publication had meted out something like candour and fairness to Mr. Berry in speaking of his book. If he had used only one of the words "curious, interesting, and valuable," which he had applied to Mr. Nichols's work, Mr. Berry would not have had so much reason to complain. The Jury would now see what a different measure he dealt to the plaintiff, from what he dealt to himself. They should judge whether those parts of the article which he would

1830.]

Berry's Kentish Genealogies.

now read to them were not of an unfair and libellous character. The article was headed Heraldic Visitations and County Genealogies," and after giving a history of the visitation of counties by the King's Stewards and Officers at Arms, and speaking of Mr. Berry's undertaking as one of novelty, and of the defendants being bound, therefore, to take some notice of it, proceeded thus:"It must be considered undeniable that all-important as truth and honesty are, at all times, and in all places, there are occasions on which these qualifications are of greater importance in their results than they would be in other events; and the tracing of a pedigree is one of those sciences which requires its professors to be surpassed by none in true and honest dealing." Now, Mr. Berry never professed to have traced any of the pedigrees which his book contained, nor to have compiled any of the genealogies. All he undertook to do was, to give copies of the pedigrees which he had collected, either from his own researches or from facts communicated to him by members of the different families to whom he applied. But the defendants, in order to give a sting to their remarks, chose to assume that Mr. Berry professed to be a tracer of pedigrees; and then, having this peg to hang their remarks upon, they proceeded in these terms:

The genealogist should be of liberal education, in modern as well as ancient languages, well skilled by study in his pursuit,-of talent rather above than below mediocrity; and if not of 'gentle blood' himself, the allowed equal and associate of those who are so, with a very quick perception of the truth or falsehood of evidence. Without these qualities, each and every of them, the man who undertakes the compilation of a volume of pedigrees is undertaking that for which he has not the full necessary qualifieations. How far the present compiler is entitled to our approbation, we regret to say we must, from the importance of the subject, proceed to inquire. The prospectus (which we use for want of a title-page) informs us that the Genealogies are by William Berry, late and for 15 years Registering Clerk in the College of Arms, London ;' but with what astonishment will our readers learn that there is not, and never has been, such a situation or office belonging to the College of Arms, as Registering Clerk;' and that no person of the name of William Berry has ever been a member of that college, from its incorporation by Richard III. to the present hour; and that the author or compiler of the work before us, was a writing clerk in the private employ of Mr. Harrison, and afterwards of Mr. Bigland, members of the College, and registrars of the corporation, at the ordinary salary usually given to writing clerks. And thus the common clerk of a herald and Register of the College of Arms has the vanity to call himself Registering Clerk in

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the College of Arms.' The word 'late,' which this compiler prefixes to his title of Registering Clerk, is also used with corresponding impropriety, since we believe that his services were dispensed with, even as a clerk, so far back as the year 1809." Here there were two charges made which were fatal to the reputation of Mr. Berry :—first, the want of truth and honesty, which, it was assumed, was clearly proved by Mr. Berry having taken upon himself the title of Registering Clerk; and secondly, that he bad been dismissed from his situation. The fact as to his employment under Mr. Harrison and Mr. Symonds, the successive Registers in the College of Arms, could not be disputed; and ought it not therefore in common fairness and candour to have induced the defendants to state, that, although he was not what was technically called the Registering Clerk (it being admitted that there was no such office) yet that he was in fact employed in the business of registration in the College of Arms ? The libel proceeded to say, “It may, however, afford some relief to the disappointed holders of this volume to be informed, that we think most of the pedigrees will be found to have been copied from some one of the volumes of Kentish pedigrees in the Harleian Manuscripts, in the British Museum;" and then, after pointing out what the writer conceived to be other defects in the work, it concluded with these observations-"Though we consider this work a failure, there is, notwithstanding, due to the compiler the credit of much industry and perseverance, as well as much spirit in being the first to renew a mode of collecting pedigrees long disused; nor ought the engraving of the arms to be passed over without approbation. But as we cannot think that a work conducted on so faulty a system as the present can be continued without pecuniary loss, so we shall not regret, nor consider it any injury to Mr. Berry, to hear that a better sort of visitation has been undertaken by some person in our opinion better qualified. Such a work might be made of great value, and ought to be, and we must believe would be, patronized by a majority of the country gentlemen of England, very few of whom have contributed their pedigrees so the present undertaking." The learned counsel insisted that the defendants had no right to make these remarks, and said he should prove that the plaintiff went round to the different families in the county of Kent, and collected from them personally the particulars relating to their pedigrees, and inserted them with such additions as his own researches and information enabled him to supply. This was the case which he should lay hefore the Jury. Mr. Berry com plained not of an attack upon his book, but upon his character for truth and honesty; and it would be for the Jury to say, when they had heard the evidence, what compen

Berry's Kentish Genealogies.

Berry's Kentish Genealogies.

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Errors in Berry's Kentish Genealogies.

Lord TENTERDEN observed, that the allegation in the declaration was certainly not made out.

The ATTORNEY-GENERAL then proceeded to call the attention of the Jury to those parts of the publication which Mr. Broughan had not read, and amongst others to the following:-"The first objection that occurs to us is, that the work wants system; there is no arrangement of the pedigrees, either alphabetically, topographically, or chronologically, with reference to the time of compilation of such descents-a pedigree traced 200 years since, occupying the same or following page as one compiled yesterday. Thus, in p. 1, is the pedigree of a family named Man,' ending in the year 1625, copied, we presume, from the Harleian MS. 1106 or 1432; but why such an unmeaning pedigree commences this work, or, we may almost say, why such an unmeaning pedigree is inserted at all, we cannot discover. In p. 2 and 3, we have a pedigree of the family of Bargrave, brought down to the present day. In p. 4, we find a pedigree ending in 1619. In p. 5, we observe two short pedigrees without any date whatever; and in this

manner is the whole volume put together. Iu p. 92, we have, for the second time, the pedigree of Man, verbatim, as in p. 1. And we may safely affirm, that the absurdity of many of the pedigrees is beyond description, the book abounding with entire genealogies unsanctioned by a single date from beginning to end; so that whether such pedigrees relate to families flourishing before the flood, or to the parvenus of latest origin, the

reader is not informed. Another defect of no small importance is the publishing a volume of pedigrees, of no possible utility unless as a book of reference, without referring to an authority for any one genealogy in the work; and whether this has been done intentionally, or ignorantly, it is much to be reprehended. The ancient pedigrees in Mr. Berry's work ought to have a reference to the manuscript from which they have been transcribed, with some general account of its author, its date, its character, and the like; whilst modern pedigrees ought to have been sanctioned by the name of the party authorizing their insertion." The learned counsel referred to the book, and pointed out those facts to which some of the above observations applied, and contended that the whole article was written in a spirit of fair criticism, and without any intention of maligning the plaintiff.

Lord TENTERDEN, in summing up the case to the Jury, observed, that the question for them to decide was, whether or not the publication in question was one of which the plaintiff could justly complain, as containing observations affecting his personal character. When a person published a work, he submitted it to public criticism, and any one had a right to make observations upon it

[Nov.

without being subject to an action of libel. But if, in the form of a criticism on the work, he attacked the character of the author, he was amenable for his observations in an action of this description. The complaint made by Mr. Berry was, that the defendants had said that he had not filled the office of Registering Clerk in the College of Arms; and it was quite clear from the evidence that he had not, for there was no such office in that corporation; but there was an officer belonging to the college, called the Register, and Mr. Berry had been clerk to that officer. This was what the defendants had stated in their publication. His Lordship then read the principal passages in the alleged libel, and left it to the Jury to say whether they contained any thing falsely injurious to the plaintiff's character. If they did, the plaintiff was entitled to a verdict; if not, the verdict must be for the defendants.

The Jury, almost immediately, found for the defendants.

Mr. URBAN,

Nov. 17.

HERE are certainly some very

THE

incorrect statements in the work entitled "Kentish Genealogies," which has been forced peculiarly on the public notice by some extraordinary proceedings in the course of the present month; and thinking it of some importance to what hands the public entrust the preparation of such a work as a general View of the Genealogy of the English Nation, for nothing less than this seems to be contemplated, I shall, with your permission, lay some of these statements before the public, in a manner in which they will meet the pub. lic eye.

1. We are told, p. 479, that Nicholas Sidney, grandfather of Sir Henry Sidney, KG. married" Anne, daughter and co-heir of Sir William Brandon, knt., cousin and co-heir of Charles, Duke of Suffolk." This lady was no co-heir of Sir William Brandon, whose co-heirs were the daughters of his son, Charles Brandon, the first Duke of Suffolk. She was aunt and co-heir of Charles Brandon, the third Duke of Suffolk, who died a youth, his sisters being only sisters of the half-blood.

2. At p. 351 we find Edward Peke marrying" Elizabeth, daughter of Geo. Wentworth, and heir to the Earl of Strafford, ob. 1691." This is a most extraordinary statement to be made by one who ought to be conversant with the descents of our nobility, and is wholly unfounded in fact.