On the 15th of April, 1776, Westminster Hall filled with peers, peeresses, and foreign ambassadors. At half past ten, the Queen and the Royal Family took their places in the gallery. The clerk read the writs that brought the cause before this tribunal, followed by the indictment. The serjeant-at-arms announced the prisoner’s approach. Elizabeth, Duchess of Kingston, advanced to the bar attended by three ladies of her suite, her chaplain, her physician, and her apothecary. She made three curtsies, knelt, and rose again at the invitation of the Lord High Steward.
The charge was one of bigamy. Before entering her plea, the Duchess read a paper: her counsel had advised her to oppose to the indictment an ecclesiastical sentence of 1769, which had pronounced her free from all matrimonial contract with Augustus Hervey. The Lord High Steward reminded her that she must plead to the bill. To the clerk’s question, she answered: “Not guilty, my Lords.” Asked how she would be tried, she put herself upon her peers.
Behind these grand titles lay an inheritance. The Duke of Kingston had died in 1773, bequeathing his estates to Elizabeth for her life or until her remarriage; they were thereafter to devolve upon his nephew, Charles Medows. The latter’s elder brother, Evelyn, excluded from the will, challenged the validity of the union. The question raised far more than a domestic feud: was the woman in possession of the estates truly the Duke’s widow? Hervey, for his part, was still living; he had even succeeded as Earl of Bristol in 1775. Whichever union were upheld, Elizabeth could claim the rank of a peeress. This circumstance secured her forum; it was to serve her again once judgment was passed.
The proceedings turned upon a preliminary question: did the ecclesiastical decree bar all further enquiry, or might the House of Lords hear evidence of an earlier marriage? The Solicitor-General argued against the pretension that an ecclesiastical determination could bind the temporal courts. Lord Talbot, observing that he had already heard more than his memory could retain, moved that the Lords adjourn to the Parliament Chamber that the arguments might be duly weighed. Lord Camden then framed three questions for the judges: whether the Lords might receive witnesses, whether the ecclesiastical sentence was conclusive, and whether the prosecution might show collusion or fraud in its procurement. The judges advised that, upon either supposition, the Crown might proceed with its evidence. The peers withdrew for some half-hour, returned into the Hall, and ordered the Attorney-General to open the evidence. The Duchess’s initial plea had thus failed to arrest the hearing of witnesses.
Borrow’s chronicle carries the origin of the charge back to 1742. Anne Craddock testified that she had known the Duchess when she was Miss Chudleigh and lodging at the house of Mr. Merrill during the Winchester races. It was there, she deposed, that Chudleigh and Hervey met and formed an attachment. Craddock affirmed that they were married secretly, one evening about eleven o’clock, in the church at Lainston, Hampshire. The legal reports of the case place this ceremony on the 4th of August, 1744. She named the rector, Mr. Ames, as the officiating clergyman, and stated that Mr. Mountney, Mrs. Hanmer, and herself were present. The ceremony, she said, took place while the young lady was still residing with her aunt; her account thus set the date long before the subsequent marriage to the Duke of Kingston.
The scene she described rested upon a singular detail: the church being dark, Mr. Mountney had stuck a wax taper upon the crown of his hat. Yet, upon cross-examination, Craddock admitted having received a letter from Mr. Fossard, promising her a sinecure place if she consented to give evidence against the Duchess. The letter observed that she might show it to Hervey. Her recollection of the ceremony supplied direct testimony; the promise of an advantage cast immediate suspicion upon the motives of her appearance.
Another witness, Caesar Hawkins, deposed that he had known the Duchess for thirty years and had heard of the marriage. He stated that Hervey and Chudleigh had spoken to him of it before Hervey returned to sea. Hawkins added that he was present at the birth of their child and had seen the infant. Following Hervey’s return, the latter had requested him to propose a divorce to the Duchess, which she had refused. Later, she informed him that she had instituted a suit for jactitation of marriage at Doctors’ Commons to silence Hervey’s public boasts.
Judith Phillips, the widow of the rector Ames, had not attended the ceremony. She recounted what her husband had told her of it and recalled that Chudleigh later desired her to procure a certificate from him. Mr. Merrill had advised the young woman to take counsel’s opinion. Upon this advice, a church register was procured, and an entry of the marriage was inserted among recent burials. Phillips identified her late husband’s handwriting; other clergymen likewise attested to it. The book was produced in court. A proctor from Doctors’ Commons testified to the caveat entered against the probate of the Duke’s will. Beside the nocturnal scene depicted by Craddock, the prosecution thus leaned upon an entry belatedly engrossed and upon witnesses who had not all seen the ceremony solemnised.
The Duchess’s defence rested upon a distinct sequence of acts. She affirmed that she had never believed herself lawfully married to Hervey. According to the written defence she read, the spiritual court had pronounced her free from any contract with Hervey. She prayed the court to abide by that decree. She had subsequently laid her case before the Archbishop of Canterbury, who had declared her free to marry and had granted her physician a special licence for her union with the Duke of Kingston. She added that, upon that marriage, she had been publicly received as Duchess by the King, the Queen, and the Princess Dowager of Wales. It was not merely the validity of an ancient ceremony she contested: she invoked the opinions and authorities she had solicited before marrying the Duke, together with the public countenance she had enjoyed thereafter.
On the 22nd of April, the evidence for the Crown being closed, the Duchess read her defence. The peers withdrew and delivered their judgment in her absence. They found her guilty. Upon her return to the bar, the Lord High Steward demanded what she had to allege why judgment should not be pronounced. She handed a paper to the clerk, claiming the privilege of the peerage. The Lords allowed her claim and ordered her discharge upon payment of the customary fees.
Hitherto, Borrow records that she had displayed the utmost composure. Upon the announcement of the verdict, she swooned and was borne from the bar. The trial thus closed upon two distinct resolutions: the House of Lords had pronounced her guilty, but her privilege preserved her from corporal penalty. She subsequently quitted England to pass the remainder of her days upon the Continent. She died in France in 1788—and not in Russia twenty years after the trial, as Borrow relates. At Westminster, privilege had accomplished what the defence had failed to secure: it opened the prison doors, without clearing her name.