Privilege of Peerage - Trial By Peers

Trial By Peers

Just as commoners have a right to trial by a jury of their equals (other commoners), peers and peeresses formerly had a right to trial by other peers. The right of peers to trial by their own order was formalized during the 14th century. A statute passed in 1341 provided:

Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, asseized in the King's hands, and some put to death without judgment of their peers: It is accorded and assented, that no peer of the land ... shall be brought in judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but by award of the said peers in Parliament.

The privilege of trial by peers was still ill-defined, and the statute did not cover peeresses. In 1442, after an ecclesiastical court (which included King Henry VI of England, Henry Beaufort and John Kemp) found Eleanor, Duchess of Gloucester, guilty of witchcraft and banished her to the Isle of Man, a statute was enacted granting peeresses the right of trial by peers.

By the reign of Henry VII of England, there were two methods of trial by peers of the realm: trial in the House of Lords (or, in proper terms, by the High Court of Parliament) and trial in the Court of the Lord High Steward. The House of Lords tried the case if Parliament was in session; otherwise, trial was by the Lord High Steward's Court.

In the Lord High Steward's Court, a group of Lords Triers, sitting under the chairmanship of the Lord High Steward, acted as judge and jury. By custom the number of Triers was not fewer than 23, so that a majority was a minimum of 12, but in fact the number ranged from 20 to 35. The power to choose which peers served as Triers lay with the Crown and was sometimes subject to abuse, as only those peers who agreed with the monarch's position would be summoned to the Court of the Lord High Steward, thereby favouring the desired verdict. This practice was ended by the Treason Act 1695, passed during the reign of King William III. The Act required that all peers be summoned as Triers. All subsequent trials were held before the full House of Lords.

In the House of Lords, technically called the Court of the King (or Queen) in Parliament, the Lord High Steward was the President or Chairman of the Court, and the entire House determined both questions of fact and questions of law as well as the verdict. By convention, Bishops and Archbishops did not vote on the verdict, though they were expected to attend during the course of the trial. They sat until the conclusion of the deliberations, and withdrew from the chamber just prior to the final vote. At the end of the trial, peers voted on the question before them by standing and declaring their verdict, starting with the most junior baron and proceeding in order of precedence ending with the Lord High Steward. For a guilty verdict, a majority of twelve was necessary. The entire House also determined the punishment to be imposed, which had to accord with the law. For capital crimes the punishment was death; the last peer to be executed was Laurence Shirley, 4th Earl Ferrers, who was hanged for murder in 1760.

From 1547 if a peer or peeress was convicted of a crime, except treason or murder, he or she could claim "privilege of peerage" to escape punishment if it was their first offence. In all, the privilege was exercised five times, until it was formally abolished in 1841 when James Brudenell, 7th Earl of Cardigan, announced he would claim the privilege and avoid punishment if he was convicted of duelling. He was acquitted before the introduction of the bill.

The last trial in the House of Lords was that of Edward Southwell Russell, 26th Baron de Clifford, in 1935 for motor manslaughter (he was acquitted); the following year the Lords passed a bill to abolish trial by peers but the Commons ignored it. In 1948, the right to trial by peers was abolished when the Lords added an amendment to the Criminal Justice Act, which the Commons accepted. Now, peers are tried by juries composed of commoners, though they were themselves excluded from jury service until the passage of the House of Lords Act 1999.

Peers were, and still are hypothetically, subject to impeachment. Impeachment was a procedure distinct from the aforementioned procedure of trial in the House of Lords, though the House of Lords is the court in both cases. Charges were brought by the House of Commons, not a Grand Jury. Additionally, while in normal cases the House of Lords tried peers only for felonies or treason, in impeachments the charges could include felonies, treason and misdemeanours. The case directly came before the House of Lords, rather than being referred to it by a writ of certiorari. The Lord High Steward presided only if a peer was charged with high treason; otherwise the Lord Chancellor presided. Other procedures in trials of impeachment were similar, however, to trials before the House of Lords: at the conclusion of the trial, the spiritual peers withdrew, and the temporal Lords gave their votes on their honour. The last impeachment was that of Henry Dundas, 1st Viscount Melville, in 1806 for misappropriating public money (he was acquitted). Since then, impeachment has become an obsolete procedure in the United Kingdom.