FITZJAMES, James (1670-1734)

The illegitimate son of James, duke of York and Arabella Churchill, sister of John Churchill, later duke of Marlborough, Fitzjames was brought up as a Catholic and became politically significant only for the brief period of his father’s reign. Educated in France from an early age, he had hardly visited England before his arrival in October 1687. It was perhaps a testimony more to the king’s desperate search for willing allies than to the abilities of this virtually unknown and certainly untried teenager that Berwick was almost instantly co-opted to his father’s catholicizing policies. In December 1687, after a dispensation from the penal laws, Berwick replaced Edward Noel, earl of Gainsborough, as lord lieutenant of Hampshire, governor of Portsmouth and the keeper of New Forest for failing to deliver on the three questions.Add. 34510, f. 65; Luttrell, Brief Relation, i. 428; A.M. Coleby, Central Govt. and the Localities: Hants 1649-1689, 161. James also appointed Berwick as his master of the horse, though in this case he ensured that the previous post holder, his ally George Legge, Baron Dartmouth, was compensated adequately. Longleat, Bath mss, Thynne pprs. 42, ff. 328-9, 332; Luttrell, Brief Relation, i. 427. In February 1688 he was given the regiment of Aubrey de Vere, 20th earl of Oxford, another loyal servant of the Crown who was punished for his inability to accept James’s policies. Luttrell, Brief Relation, i. 431; Reresby Mems. 487. If James had confidence in Berwick’s ability to succeed where older heads had failed, he was mistaken. Berwick was unable to persuade either the officers of the regiments stationed at Portsmouth or the gentry of Hampshire to answer the three questions in the way that his father required. Add. 34510, ff. 82-83; Coleby, 186, 221.

Despite these failures Berwick remained high in the king’s favour. In July 1688 it was rumoured that he would be given the regiment of the recently deceased James Butler, duke of Ormond. In September several officers refused to co-operate when Berwick tried to incorporate Irish Catholic soldiers into his regiments and had to be court martialled. Thynne pprs. 43, ff. 164, 196-7. As the political situation deteriorated Berwick’s activities become increasingly difficult to track. In mid December he was reported to have been with the king at his flight to Faversham, but he was at Portsmouth just a few days later threatening to attack local residents who had seized Gosport castle. HMC Hastings, ii. 206; HMC Dartmouth, i. 230, 233-5. Dartmouth pointed out the futility of resistance in a situation in which supplies could not be guaranteed and when this was followed up by a direct order from the king, Berwick surrendered Portsmouth and joined his father in his flight to France. HMC Dartmouth, i. 237, 281; The Universal Intelligencer, 18 Dec. 1688. By the end of January 1689 he was reputed to be raising a regiment there. HMC Portland, iii. 427.

Berwick accompanied his father to Ireland where he was involved in actions at Coleraine, Derry, Newry and the Battle of the Boyne. As a result of his activities he was named in the bill introduced into the Commons on 20 June to attaint of high treason certain persons in Ireland, or elsewhere abroad, adhering to the kingdom’s enemies. HMC Lords, ii. 227-43. After being amended in the Lords, the bill failed for lack of time in the Commons, although on 20 Aug. the Commons resolved to address to king for a commission of oyer and terminer, for indicting persons in rebellion in Ireland or elsewhere. In October 1689 Berwick was indicted at the Old Bailey along with William Herbert, marquess of Powis, and others for being in rebellion in Ireland against the crown. Add. 28085, f. 218. His failure to answer to the charge appears to have led to Berwick being outlawed. Intrinsic to the process of outlawry was a loss of civil rights, in this case seemingly confined to the kingdom of Ireland. In 1693 Berwick was captured by William III’s forces at the Battle of Landun and he was exchanged for James Butler, 2nd duke of Ormond. Evelyn Diary, v. 149. He was rumoured to have been in London ready to lead the plot to assassinate William III and in February 1696 a proclamation was issued for his apprehension. HMC Buccleugh, ii. 445; Evelyn Diary, v. 232, 273. A second proclamation in November 1697 referred to him as the late duke of Berwick and as having been outlawed, this time presumably in England. The process of outlawry which in Ireland had led only to loss of estates, led in England to the loss of his peerage as well as of estates. In the absence of an act of attainder, later references to Berwick having been attainted have puzzled historians, but it is clear that such references use the word in its ordinary legal sense of loss of rights (through outlawry) rather than as a process that needed to be invoked by an act of Parliament. Confirmation of attainder through outlawry was given in 1699 when the House was informed that he had been outlawed both in England and Ireland. HMC Lords, n.s. iv. 18. Whether the process of outlawry was in itself a breach of privilege of peerage, in that it bypassed the right of trial by the peers, remains something of an open question.

After the Treaty of Ryswick, Berwick commanded a regiment in the French service. He continued to assist his father, acting on his behalf in negotiations with Victor Amadeus II, and was present during the exiled king’s last illness. His career was now increasingly centred on military service with France. He served in the French army with distinction after 1702 and became a naturalized Frenchman. His success at the Battle of Almanza earned him a Spanish peerage, the dukedom of Liria and Xerica, and lands to support his new dignity. In November 1707 it was rumoured that Berwick was implicated in a Jacobite plot in Scotland, involving the pretended Prince of Wales and some 30,000 men. HMC Portland, iv. 460. His military career, however, continued to ensure that his longer term interests were identified with France. In 1710 he was created duke of Fitzjames in France, an honour that he ensured, through a special remainder, would descend to the children of his second marriage. Although it was assumed that Berwick would accompany the Pretender during the attempted rising of 1715, he failed to obtain the necessary permissions from the French government and, faced with a conflict of loyalties, chose France rather than his half-brother. He was killed during the siege of Philippsburg in June 1734.