Privilege of Peerage

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The Privilege of Peerage is the body of special privileges belonging to members of the British Peerage, and is distinct from Parliamentary privilege, which applies to only those peers serving in the House of Lords and the members of the House of Commons, while Parliament is in session and forty days before and after a Parliamentary session.^[1]

The Privilege of Peerage extends to all temporal peers and peeresses regardless of their position in relation to the House of Lords. The right to sit in the House is separate to the privilege, and is only held by some peers (see History of Lords Reform). Scottish peers from the Acts of Union 1707 and Irish peers from the Act of Union 1800, therefore, have the Privilege of Peerage. From 1800, Irish peers have had the right to stand for election to the United Kingdom House of Commons but they lose the privilege of peerage for the duration of their service in the lower House.^[2] Since 1999, hereditary peers of England, Scotland, Great Britain and the United Kingdom, who are not members of the House of Lords, may stand for election to the House of Commons. Their privilege of peerage is not explicitly lost by service in the lower House. Any peer issuing a disclaimer under the provisions of the Peerage Act 1963 loses all privileges of peerage.^[1] The Privilege of Peerage also extends to wives and widows of peers. A peeress by marriage loses the privilege upon marrying a commoner,^[1] but a peeress suo jure does not. Individuals who hold courtesy titles, however, do not have such privileges by virtue of those titles. Lords Spiritual (the 26 Archbishops and Bishops who sit in the House of Lords) do not have the Privilege of Peerage as, at least since 1621, they have been Lords of Parliament, and not peers.^[3]

The privileges have been lost and eroded over time. Only three survived into the 20th century: the right to be tried by other peers of the realm instead of juries of commoners, freedom from arrest in civil (but not criminal) cases, and access to the Sovereign to advise him or her on matters of state.^[1] The right to be tried by other peers was abolished in 1948. Legal opinion considers the right of freedom from arrest as obsolete. The remaining privilege was recommended for formal abolition in 1999,^[4] and may be retained, arguably, by peers whether members of the House of Lords or not.^[5]

Peers also have several other rights that do not formally comprise the Privilege of Peerage. For example, they are entitled to use coronets and supporters on their achievements of arms.

Contents 1 Trial by peers 2 Access to the Sovereign 3 Freedom from arrest 4 Scandalum magnatum 5 Privilege myths 6 Precedence 6.1 General precedence 6.2 Precedence within Parliament 7 Coats of Arms 8 Robes 9 See also 10 Notes and references 11 Further reading

[edit] 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 fourteenth century. A statute passed in 1341 provided:^[6]

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.^[7][8]

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.^[9] In both cases, the Lord High Steward presided. Before the trial, a peer would be indicted by a Grand Jury, as was normally done with commoners, but instead of being decided by the Assize Courts, the Lord High Steward's Court or Parliament would issue a writ of certiorari ordering the lower court to certify the case up to it.

In the House of Lords, the Lord High Steward was the President or Chairman of the Court, but the entire House determined both questions of fact and questions of law. At the end of the trial, peers voted on the question before them, starting with the most junior baron and proceeding in order of precedence, ending with the Lord High Steward himself, by standing and declaring the verdict on their honour—not on oath, as is the case in juries trying commoners. By convention, Bishops and Archbishops did not vote on the verdict, though they were able to cast votes on procedural questions arising during the course of the trial. Instead, they sat until the conclusion of the deliberations, withdrawing from the chamber just prior to the final vote. All decisions were by simple majority, provided that at least twelve peers voted. 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.

In the Lord High Steward's Court, the Lord High Steward functioned as a judge, determining questions of law, while a group of Lords Triers, essentially a jury composed of other peers, decided questions of fact and the verdict. 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.^[7] 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 Treasons Act, 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 High Court of Parliament.

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,^[10] 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.^[7]

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.^[7] 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.^[11]

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).^[12] Since then, impeachment has become an obsolete procedure in the United Kingdom.^[13]

[edit] Access to the Sovereign

The Sovereign is advised by various counsellors, including the Peers of the Realm. Peers formed the magnum concilium, or Great Council, which was one of the four councils belonging to the Sovereign. The other three were the Privy Council, Parliament (which is called the commune concilium, or Common Council), and judges (who are considered counsellors of the Sovereign on legal matters).

A council composed only of peers was often summoned by some early English Kings. Such a council, having been in disuse for centuries, was revived in 1640, when Charles I summoned all of the Peers of the Realm using writs issued under the Great Seal. Though such a council has not been summoned since then, and was considered obsolete at the time, each peer is commonly considered a counsellor of the Sovereign, and, according to Sir William Blackstone in 1765, "it is usually looked upon to be the right of each particular peer of the realm, to demand an audience of the King, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal."^[14] This privilege is no longer exercised.^[15]

[edit] Freedom from arrest

The privilege of freedom from arrest applies to members of both Houses of Parliament^[1] due to the principle that they must, whenever possible, be available to give advice to the Sovereign. Several other nations have copied this provision; the Constitution of the United States, for example, provides, "The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses." Theoretically, even when Parliament is not sitting peers enjoy the privilege because they continue to serve the Sovereign as counsellors. Peers are free from arrest in civil cases only however; arrests in criminal matters are not covered by the privilege. Until 1770, a peer's domestic servants were also covered by the privilege of freedom from arrest in civil matters.^[16]

Most often the privilege was applied in cases of imprisonment in Debtors' Prisons. In 1870, both imprisonment for debt and the privilege in relation to freedom from arrest for bankruptcy were abolished, and as a result the freedom became extremely limited in practical application. Now, civil proceedings involve arrests only when an individual disobeys a court order. Since 1945, the privilege of freedom from arrest in civil cases has only arisen in two cases: Stourton v Stourton (1963) and Peden International Transport, Moss Bros, The Rowe Veterinary Group and Barclays Bank plc v Lord Mancroft (1989).^[1] In the latter most recent case, the trial judge considered the privilege obsolete and inapplicable, and said in proceedings, "the privilege did not apply—indeed ... it is unthinkable in modern times that, in circumstances such as they are in this case, it should".^[17]

[edit] Scandalum magnatum

At one time, the honour of peers was especially protected by the law; while defamation of a commoner was known as libel or slander, the defamation of a peer (or of a Great Officer of State) was called scandalum magnatum. The Statute of Westminster of 1275 provided that "from henceforth none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm."^[18] Scandalum magnatum was punishable under the aforesaid statute as well as under further laws passed during the reign of Richard II.^[19] Scandalum magnatum was both a tort and a criminal offence. The prohibition on scandalum magnatum was first enforced by the King's Council. During the reign of Henry VII, the Star Chamber, a court formerly reserved for trial of serious offences such as rioting, assumed jurisdiction over scandalum magnatum, as well as libel and slander, cases. The court, which sat without a jury and in secret, was often used as a political weapon and a device of royal tyranny, leading to its abolition in 1641; its functions in respect of defamation cases passed to the common law courts. Already, however, the number of cases had dwindled as the laws of libel, slander and contempt of court developed in its place. By the end of the eighteenth century, scandalum magnatum was obsolete. The prohibition on it was finally repealed by the Statute Law Revision Act 1887.^[20]

[edit] Privilege myths

Several individuals have written fanciful tales of peers with whimsical privileges, such as the right to wear a hat in the presence of the Sovereign; the most notorious example of such a legend is that of the Kingsale hat. According to the fable, John de Courcy, Earl of Ulster, obtained from King John the privilege of remaining covered (that is, wearing a hat) in the presence of the Sovereign. Though the tale is untrue—de Courcy was never made an earl^[21] and did not receive such a privilege—several authorities on the Peerage have seen fit to repeat it. A 19th-century edition of Burke's Peerage suggests the origins of the privilege:^[22]

... the Earl of Ulster was treacherously seized while performing penance, unarmed and barefooted, in the churchyard of Downpatrick, on Good Friday, anno 1203, and sent over to England, where the king condemned him to perpetual imprisonment in the Tower ... After de Courcy had been in confinement about a year, a dispute happening to arise between King John and Philip Augustus of France concerning the Duchy of Normandy, the decision of which being referred to single combat, King John, more hasty than advised, appointed the day, against which the King of France provided his champion; but the King of England, less fortunate, could find no one of his subjects willing to take up the gauntlet, until his captive in the Tower, the stout Earl of Ulster, was prevailed upon to accept the challenge. But when everything was prepared for the contest, and the champions had entered the lists, in presence of the Kings of England, France and Spain, the opponent of the earl, seized with a sudden panic, put spurs to his horse, and fled the arena; whereupon the victory was adjudged by acclamation to the champion of England. The French king being informed, however, of the earl's powerful strength, and wishing to witness some exhibition of it, de Courcy, at the desire of King John, cleft a massive helmet in twain at a single blow.

To reward his singular performance, King John supposedly granted de Courcy the privilege of remaining covered in the presence of the Sovereign. The 1823 edition of Debrett's Peerage gives an entirely fictitious account of how Almericus de Courcy, 23rd Baron Kingsale, asserted the privilege:^[23]

Being very handsome in his person, and of a tall stature, his lordship one day attended King William's court, and being admitted into the presence-chamber, asserted the privilege of being covered before his majesty, by walking to and fro with his hat on his head. The king observing him, sent one of his attendants to inquire the reason of his appearance before him with his head covered; to whom he replied, he knew very well in whose presence he stood, and the reason why he wore his hat that day was, because he stood before the king of England. This answer being told the king, and his lordship approaching nearer the throne, was required by his majesty to explain himself, which he did to this effect: "May it please your majesty, my name is Courcy, and I am Lord of Kingsale in your kingdom of Ireland: the reason of my appearing covered in your majesty's presence is, to assert the ancient privilege of my family, granted to sir John de Courcy, earl of Ulster, and his heirs, by John, king of England, for him and his successors for ever." The king replied, he remembered he had such a nobleman, and believed the privilege he asserted to be his right, and giving him his hand to kiss, his lordship paid his obeisance, and remained covered.

De Courcy not only did not procure such a privilege, but he also was never created Earl of Ulster.^[24] Despite such inaccuracies, the tale has been frequently repeated, and provides an instructive example of the fictional privileges often attributed to peers.

[edit] Precedence

Main article: United Kingdom order of precedence

Peers are entitled to a special precedence because of their ranks. Wives and children of peers are also entitled to a special precedence because of their station.

The Sovereign may, as fount of honour, vary the precedence of the peers or of any other people. For example, Elizabeth II granted her husband, HRH The Duke of Edinburgh, precedence immediately following her; otherwise, he would have ranked along with the other dukes of the Peerage of the United Kingdom.^[25]

[edit] General precedence

In England and Wales, the Sovereign ranks first, followed by the Royal Family. Then follow the Archbishops of Canterbury and York, the Great Officers of State and other important state functionaries such as the Prime Minister. Thereafter, dukes precede marquesses, who precede earls, who precede viscounts, who precede Bishops, who precede barons and lords of Parliament.^[25]

Within the members of each rank of the Peerage, peers of England precede peers of Scotland. English and Scottish peers together precede peers of Great Britain. All of the aforementioned precede peers of Ireland created before 1801. Last come peers of Ireland created after 1801 and peers of the United Kingdom. Among peers of the same rank and Peerage, precedence is based on the creation of the title: those whose titles were created earlier precede those whose titles were created later. But in no case would a peer of a lower rank precede one of a higher rank. For example, the Duke of Fife, the last non-royal to be created a duke, would come before the Marquess of Winchester, though the latter's title was created earlier and is in a more senior peerage (the Peerage of England).^[25]

The place of a peer in the order for gentlemen is taken by his wife in the order for ladies, except that a Dowager peeress of a particular title precedes the present holder of the same title. Children of peers (and suo jure peeresses) also obtain a special precedence. The following algorithm may be used to determine their ranks:

• Eldest sons of peers of rank X go after peers of rank X−1
• Younger sons of peers of rank X go after eldest sons of peers of rank X−1
• Wives have a precedence corresponding to those of their husbands
• Daughters of peers of rank X go after wives of eldest sons of peers of rank X

Over time, however, various offices were inserted at different points in the order, thereby varying it.^[25]

Eldest sons of dukes rank after marquesses; eldest sons of marquesses and then younger sons of dukes rank after earls; eldest sons of earls and then younger sons of marquesses rank after viscounts. Eldest sons of viscounts, younger sons of earls, and then eldest sons of barons, in that order, follow barons, with the Treasurer of the Household, the Comptroller of the Household, the Vice-Chamberlain of the Household and Secretaries of State being interpolated between them and the barons. Younger sons of viscounts, and then younger sons of barons, come after the aforesaid eldest sons of barons, with Knights of the Order of the Garter and Order of the Thistle, Privy Councillors and senior judges being intercalated between them and eldest sons of barons.^[25]

Children of the eldest son of a peer also obtain a special precedence. Generally, the eldest son of the eldest son of a peer comes immediately before his uncles, while the younger sons of the eldest son of a peer come after them. Therefore, eldest sons of eldest sons of dukes come before younger sons of dukes, and younger sons of eldest sons of dukes come after them, and so forth for all the ranks. Below the younger sons of barons are baronets, knights, circuit judges and companions of the various orders of Chivalry, followed by the eldest sons of younger sons of peers.^[25]

Wives of all of the aforementioned have precedence corresponding to their husbands', unless otherwise entitled to a higher precedence, for instance by virtue of holding a certain office. An individual's daughter takes precedence after the wife of that individual's eldest son and before the wives of that individual's younger sons. Therefore, daughters of peers rank immediately after wives of eldest sons of peers; daughters of eldest sons of peers rank immediately after wives of eldest sons of eldest sons of peers; daughters of younger sons of peers rank after wives of eldest sons of younger sons of peers. Such a daughter keeps her precedence if marrying a commoner (unless that marriage somehow confers a higher precedence), but rank as their husband if marrying a peer.^[25]

[edit] Precedence within Parliament

The order of precedence used to determine seating in the House of Lords chamber is governed by an Act of Parliament passed in 1539.^[26][27] Precedence as provided by the Act is similar to, but not the same as, the order outside Parliament. The Sovereign, however, does not have the authority to change the precedence assigned by the Act.^[25]

Lords Temporal assume precedence similar to precedence outside Parliament. One difference in the precedence of peers relates to the positions of the Great Officers of State and the officers of the Sovereign's Household. Some Great Officers—the Lord Chancellor, the Lord High Treasurer, the Lord President of the Council and the Lord Privy Seal—provided they are peers, rank before all other peers except those who are of the Blood Royal (no precedence is accorded if they are not peers). The positions of the other Great Officers—the Lord Great Chamberlain, the Lord High Constable, the Earl Marshal and the Lord High Admiral—and the officers of the Household—the Lord Steward and the Lord Chamberlain—are based on their respective ranks. Thus, if the Lord Steward were a duke, he would precede all dukes, if a marquess, he would precede all marquesses, and so on. If two such officers are of the same rank, the precedence of the offices (reflected by the order in which they are mentioned above) is taken into account: if the Lord Great Chamberlain and Earl Marshal were both marquesses, for example, then the Great Chamberlain would precede the Earl Marshal, as the former office precedes the latter.^[25]

In practice, however, the Act is obsolete, as the Lords do not actually sit according to strict precedence; instead, peers sit with their political parties.^[28]

[edit] Coats of Arms

Peers are generally entitled to use certain heraldic devices. Atop the arms, a peer may display a coronet. Dukes were the first individuals authorised to wear coronets. Marquesses acquired coronets in the 15th century, earls in the 16th and viscounts and barons in the 17th. Until the barons received coronets in 1661, the coronets of earls, marquesses and dukes were engraved while those of viscounts were plain. After 1661, however, viscomital coronets became engraved, while baronial coronets were plain. Coronets may not bear any precious or semi-precious stones.^[29] Generally, only peers may use the coronets corresponding to their ranks. The Bishop of Durham, however, may use a duke's coronet atop the arms as a reference to the historical temporal authority of the Prince-Bishops of Durham.

Peers wear their coronets at coronations. Otherwise, coronets are only seen in heraldic representations, atop a peer's arms. Coronets include a silver gilt chaplet and a base of ermine fur. The coronet varies with the rank of the peer. A member of the Royal Family uses a royal coronet instead of the coronet he or she would use as a peer or peeress.^[29]

Ducal coronets include eight strawberry leaves atop the chaplet, five of which are displayed in heraldic representations. Marquesses have coronets with four strawberry leaves alternating with four silver balls, of which three leaves and two balls are displayed. Coronets for earls have eight strawberry leaves alternating with eight silver balls (called "pearls" even though they are not) raised on spikes, of which five silver balls and four leaves are displayed. Coronets for viscounts have 16 silver balls, of which seven are displayed. Finally, baronial coronets have six silver balls, of which four are displayed. Peeresses use equivalent designs, but in the form of a circlet, which encircles the head, rather than a coronet, which rests atop the head.^[29]

Peers are entitled to the use of supporters in their achievements of arms. Hereditary supporters are normally limited to hereditary peers, certain members of the Royal Family, chiefs of Scottish Clans, Scottish feudal barons whose baronies predate 1587. Non-hereditary supporters are granted to life peers, Knights of the Garter, Knights of the Thistle, Knights Grand Cross of the Bath and Knights Grand Cross of St Michael and St George, and knights banneret.

Peers, like most other armigers, may display helms atop their arms. Helms of peers are depicted in silver and facing the viewer's left. The helm is garnished in gold and the closed visor has gold bars, normally numbering five. Along with the helm, peers use a mantling, one side of which is red and the other a representation of the heraldic fur ermine. The mantling of peers is emblazoned gules, doubled ermine. Peeresses and other female armigers do not bear helms or mantlings.^[30]

[edit] Robes

Peers have special robes that are worn at coronations and during certain special Parliamentary occasions, such as the State Opening of Parliament. The robes have special designs based on the rank of the peer. The coronation robes and coronets used at Elizabeth II's coronation in 1953 cost about £1,250^[31] (roughly £25,100 in present-day terms^[32]).

Coronation robes of peers include crimson velvet cloaks extending to the feet, open in the front and trailing behind. The robes also include a hood and a cape of miniver. The rank of the peer is demonstrated by bars of sealskin spots on the cape: Royal dukes have six, other dukes four, marquesses three and a half, earls three, viscounts two and a half, and barons two. The rank of peeresses (female peers and wives of male peers) is denoted differently, by the length of the train. Duchesses have two-yard trains, marchionesses one and three quarters, countesses one and a half, viscountesses one and a quarter, and baronesses and female holders of lordships of Parliament one.^[31]

The Parliamentary robe of peers is full-length, made of scarlet wool and includes a collar of white miniver fur. Miniver bars indicate the rank of the wearer as with coronation robes.^[31] Such robes are worn by members of the Peerage at occasions such as introductions and State Openings of Parliament.

[edit] See also

• Judicial functions of the House of Lords
• List of trials of peers in the House of Lords

[edit] Notes and references

[edit] Further reading

• Ceremony of Introduction - Report (26 February 1998). The House of Lords. Retrieved on 2007-10-22.