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.02:59Now 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 episode06:31the 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.09:36Now, 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 dang