§ LORD RIBBLESDALE
rose to call attention to the case of "The Queen v. Lord Graves," a trial recently held in the Court of Queen's Bench before the Lord Chief Justice. Lord Graves was put upon his trial, on the 19th of January, with another person, upon two indictments for felony, and one for misdemeanour against the defendant Lord Graves himself. As their Lordships were aware, a Peer charged with felony must be tried by his Peers. The misdemeanour in this case ended in an acquittal, and the learned counsel representing Lord Graves objected to his being tried for felony except by his Peers, and left the Court; but, in his absence, there being a desire 246 that the felony indictments should be taken, a conversation arose as to the jurisdiction of the Court over him in the remaining cases, and something was said about a Peer being tried by his Peers, in the course of which the Lord Chief Justice stated in effect that there was no doubt in his mind that, provided Lord Graves was willing to waive his Privilege as a Peer, he could be tried by a common or special jury, and he cited the case of Lord Ferrers in support of his view, and as an illustration of the difficulty in the matter. As to the illustration of the difficulty in the case, so far from Lord Ferrers being tried by a common jury, he (Lord Ribblesdale) believed that a Commoner was raised to the Peerage to preside at the trial of Lord Ferrers by his Peers. That, of course, therefore, was a slip of memory on the part of the Lord Chief Justice. On hearing that, Lord Graves at once said he was prepared to waive his Privilege as a Peer, and he accordingly did so, and a verdict of "not guilty" was taken. He (Lord Ribblesdale) brought the question forward as a question of Privilege, because the matter placed their Lordships in this dilemma—that if a Peer could not waive his Privilege, then the action of the Queen against Lord Graves was from beginning to end a solemn informality. If he could waive his Privilege, it was certainly only since that trial; it never had been so ruled before the Lord Chief Justice's dictum. He would leave it to their Lordships to consider whether a precedent, evidently based on an error of memory, was a desirable precedent, or one of an authoritative kind. He wanted to know whether a Peer could waive that Privilege? It was not a personal Privilege, but it was a Privilege that belonged to the ancient constitution of the House of Lords; and his contention was that it was not in the power of a Peer to waive it, in the same way as he might do in the matter of precedence, say, in going down to dinner, or similar matters of that kind. All authority was against the Lord Chief Justice's view of the case. Before the trial of Lord Dacre he believed the 14 Puisne Judges of England met in solemn conclave, so as to be able to put on record their unanimous decision whether a Peer could waive his Privilege, and their opinion was that a Peer indicted for felony must be tried by a jury of his 247 Peers, and by no other jury. He did not care about the Privilege as an individual Member of their Lordships' House. It was, no doubt, a melancholy Privilege at best; but it was a matter of some importance affecting their Lordships' House as a constituted body. He believed, speaking of course under correction, that Lord Graves's waiver of Privilege was informal and impossible under the appointed constitution of the House of Lords; and under the circumstances, and with a view of getting the matter set at rest and that informality placed on record, he now asked the noble and learned Lord on the Woolsack, Whether a Peer indicted for felony is competent to waive the Privilege of being tried by his Peers? It did not belong to an individual simply as such, and he thought the subject should be set at rest by the highest authority.
§ LORD COLERIDGE (LORD CHIEF JUSTICE of ENGLAND),
in reply, said, that, by the courtesy of the noble and learned Lord on the Woolsack (Lord Halsbury), he was allowed to say a few words to their Lordships before his noble and learned Friend answered the Question. It was right that their Lordships should know exactly how the facts stood; and how it was that the opinion, from which he certainly did not shrink, came to be given by him. Lord Graves and a gentleman named Keymer were indicted at the Central Criminal Court, and true bills were found against them in three cases; in one case for conspiring together in order to obtain money by false representations, and in two other cases for the forgery, in fact, of a large number of shares in the company called Lewthwaite and Co. Those indictments, having been duly found at the Old Bailey, were moved by certiorari into the Court of Queen's Bench, to be tried there by a jury, because it was supposed that questions of law might arise. The indictments came on before him without any notice, and without his having any idea that any question, either Constitutional or otherwise, could be raised on the trial of them. Before the indictments came on, the learned counsel who represented the prosecution, as well as those who represented the defendants, informed him that, if he saw no objection, it was desired that the prosecution should come to an end for want of evidence; and the prosecuting counsel, a very eminent and honourable man, in- 248 structed by a solicitor of the highest possible character, was satisfied by the evidence shown him in the briefs of Sir Henry James and his learned friend that it was useless to continue the prosecution, and that it would be a mere waste of time to go on with the trial, which could have only one result, and that a result favourable to the defendants. The matter was fully discussed before him, and it was necessary that his sanction should be given to the withdrawal of the prosecution; because the one case being misdemeanour and the two others being felonies, anything like withdrawal from a prosecution of that sort, especially in the case of a man of high social rank, if it were not sanctioned by the Judge, after inquiry by him, would be open to just and grave censure. It might be said that a very different measure of justice was meted out to defendants, according to whether or not they were of high rank in society. He, therefore, satisfied himself that he was fully entitled to trust the statements made by the learned counsel on both sides, and he gave his entire sanction to the withdrawal of the prosecution. He was not, at the time, aware of the form of the indictments, but only of the substance of the charges. The charge of misdemeanour was brought on, and resulted in the counsel stating in public what they had stated to him in private, and a verdict of acquittal being taken. Then arose the question of the two felonies, and Mr. Keymer, who was indicted jointly with Lord Graves, was anxious to get rid of the whole matter. Something was said about the difficulty connected with Lord Graves's Privilege as a Peer; and he (Lord Coleridge) said he saw no objection, if Lord Graves waived his Privilege, to the case being tried by a special jury. Lord Graves was present in person, and, addressing him (Lord Coleridge), stated that he desired to waive any Privilege he might possess, and that the trial might proceed. It was therefore agreed that the jury should be sworn, and they pronounced a verdict of "not guilty." He was also informed that it was immaterial whether Lord Graves really could or could not waive his Privilege; because, a communication of all the circumstances having been made to the Attorney General, the Attorney General undertook to do what he had a perfect right to do—namely, enter a nolle prose- 249 qui, and put an end to all questions in the matter. His (Lord Coleridge's) ruling, therefore, was, in fact, immaterial. He did not shrink from any censure, if it was due; but his ruling was absolutely immaterial, because the action of the Attorney General put an end to the case, whether he liked it or not, and whether the defendants liked it or not. Under these circumstances, he had said he was of opinion that the Privilege of Peerage might be waived by the person possessing it; that if he chose to throw himself on the country, and to be tried by the ordinary tribunal, he could do so; that it was a Privilege which belonged to Lord Graves, who could waive it if he liked, and if he desired the trial to proceed. It was proper to mention that the Peerage of Lord Graves was not stated in the indictment, for he was indicted as "commonly called Lord Graves," and had pleaded to an indictment so describing him; and he (Lord Coleridge) did not well see, as Lord Graves's Peerage was not stated as a fact, and as Lord Graves had pleaded to an indictment so describing him, how he (Lord Coleridge) could possibly avoid trying him. Those were the facts, and, under those circumstances, he had given the opinion which the noble Lord (Lord Ribblesdale) now challenged. He had justified it by a case as to which he admitted at once that he had made a mistake—the case of Lord Ferrers. As to Lord Ferrers he had been in error. Foster's Crown Law and the histories of the time ought to have been remembered by him. He frankly admitted that the case which occurred to him at the time, and on which he rested for justifying him in what he was doing, did not justify him at all. He had made a mistake, and there was an end of it so far as he was concerned. The question now arose, seeing that the case of Lord Ferrers did not support it, whether the opinion he gave on that occasion was, or was not, right in itself? Upon that point the statement of authorities was very curious. He did not say that the matter was clear; but he did say that there was a great deal more in favour of his view than he had certainly been aware of. He thought their Lordships would admit that there was a good deal to be said for the position that a Peer, when he liked, might waive his Privilege. Now, the matter 250 stood in this way. In the first place, this was a Privilege which most undoubtedly did not exist, except in cases of treason or felony, and in cases of misprision of either. Not only was that laid down in books of authority, but a very moderate acquaintance with celebrated cases in modern times would show that the thing had been done; and Peers had been repeatedly tried by juries in cases which were not treason or felony, nor misprision of either. He might mention a good many cases; but he would content himself by citing the case of Lord Thanet, a very famous case tried before Lord Kenyon in 1798, in which Lord Thanet was defended by Lord Erskine. In more recent times there was the case of Lord Dunboyne, who was tried before Lord Campbell for misdemeanour in 1850. There were other cases, showing that there was no question that the Privilege—if it be a Privilege—applied to cases only of felony or treason, or misprision of either. It was so laid down in the books of authority; in any other class of offence a Peer must be tried by the jury, in the Court in which the indictment was found. So said Blackstone, Lord Coke, and others. In Hawkins's Pleas of the Crown, a book of great authority, it was said—I take it to be agreed that he has a right to be tried by his Peers upon an indictment of treason or felony, whether made such by the common law or by statute, and also upon an indictment for misprision of treason or felony; but it seems that regularly he is to be tried by the country for all other crimes out of Parliament.The question is also stated in this way further on in the same book—It hath been adjudged that if a Peer, on an arraignment before the Lords, refuse to put himself upon his Peers, he shall be dealt with as one who stands mute; for it is as much the law of the land that a Peer be tried by his Peers as a Commoner by Commoners. Yet there is said to be a record in 4 Edward III. that Lord Berkeley put himself on his country, and was tried by a jury. Yet if one who has a title to Peerage be indicted or arraigned as a Commoner and plead not guilty, and put himself upon his country, it hath been adjudged that he cannot afterwards suggest that he is a Peer and pray a trial by his Peers.It seemed to him to be clear, therefore, that it was only in the cases he had referred to that the argument applied; and it seemed to be allowed that if a Peer was indicted and put himself on 251 the country, and afterwards claimed to be tried as a Peer, that then the case would be disallowed and it would be tried by the country. It was also curious to see on what ground the Privilege of Peerage and the impossibility of waiving it stood. As far as dicta were concerned, it stood, no doubt, on the highest authority. It would be found laid down by Lord Coke, and in a case reported by Lord Chief Justice Keeling. It was also curious to observe on what Lord Coke founded his dictum. He placed it on the words of Magna Charta, that no freeman should be imprisoned, and then went on—This is to be understood of the King's sute, for the words be nec super eum ibimus. nec super eum mittemus nisi per legale judicium parium suorum vel per legem terra."Lord Coke, therefore, put it on the venerable Magna Charta, and on the ground that the King having undertaken not to prosecute, not to issue process, except per legale judicium parium suorum, it was a Privilege inherent in a Peer and could not be waived. But, speaking with the greatest deference of Lord Coke's authority, he (Lord Coleridge) did not say that he was wrong; but he did not explain how it was that the doctrine had no application to misdemeanour. The King was just as much a necessary party to a suit of misdemeanour as he was to a suit for treason or felony; and if it be true that the words of Magna Charta were the reason why a Peer must be tried by the Peers, because it was at the suit of the King, he asked how it was to be accounted for that during the earliest times, so far as he knew, the trials of Peers for misdemeanour had always been by the ordinary tribunals of the country, and not by the House of Lords? There was also the case of Lord Dacre, which was referred to by the noble Lord, and which was to be found in the reports of Lord Chief Justice Keeling. But it was a curious thing to see how that matter really stood. It was not a report of Lord Chief Justice Keeling's at all, who was Chief Justice in the time of Charles II. It was the report of a Judge, no doubt an excellent man, in the time of Henry VIII., and one of the Judges who sat on the trial of Sir Thomas More and Cardinal Fisher. Lord Dacre was tried, apparently in the time of Henry VIII., for being too friendly with the Scotch, who were at 252 that time the King's enemies. It was true that the Judges were summoned for the trial of Lord Dacre; and, among other things, the Judges appear to have said that a Peer could not waive his Privilege. That was also true; but when they came to look at the authority which was cited, it was found that there was no judicial determination, and the decision had not the authority of Lord Chief Justice Keeling. The case of Lord Dorset, on the other hand, was the authority of a decided case, because, in that case, Lord Dorset had been indicted as a Commoner. He claimed that he was a Peer; but it was determined that, having once been indicted as a Commoner, he could not urge his Privilege as a Peer and must be tried by the country. There was also an interesting circumstance in this case. Lord Graves was not a Member of their Lordships' House. He was a Peer of Ireland; and, undoubtedly, upon unquestioned authority, if the case had happened before the Union, Lord Graves, for any offence committed in England, must have been tried by the country. The rule was the same as to Scottish Peers before the Union with Scotland, at the time of Queen Anne. A Peer of Scotland, if accused of any offence in this country, could not claim the Privilege of a Peer, but would have to be tried by the country, as was distinctly held in Lord Sanquhar's, a case reported by Lord Coke. By the last paragraph of the 4th Article of the Act of Union with Ireland there were expressions which seemed to say that all Privileges of trial of Peers of Ireland would henceforth be the same as in the case of Peers of the United Kingdom; but it appeared to be a curious thing to hold that, whereas, before 1800, if a Peer of Ireland had been guilty of offence in this country, he certainly would be tried by a jury, yet that since the Union such a person, although not a Member of the House of Lords, and having a right to sit in Parliament only under certain circumstances or by representation, should have a right to be tried by their Lordships' House. These were the authorities—and he had taken some trouble about the matter—which he had thought it right to bring before their Lordships. It struck him that there was much to be said for the view that this Privilege of the Peerage was 253 a Privilege which a noble Lord might waive if he thought fit. So far as his present opinion went, he should think a Peer might do so; for the reasons given for the view that a Peer could not appeared to him as, if sound, it would carry the case of misdemeanours, to which, nevertheless, the Privilege in question had never, from the earliest times of our history, ever been applied. Whether the Privilege was one which, in the present day, it was advisable to maintain was a question on which he did not presume to offer an opinion to their Lordships. It was enough for him to say that he was by no means satisfied that he was wrong in the opinion which he gave, although he admitted that there were strong dicta against it, and that it was given without very much consideration, because of the reason which he had assigned to their Lordships—namely, that it was wholly immaterial in the particular case before him; and having said this much, and having thanked their Lordships for the attention which they had given to him, he now left the matter in their Lordships' hands.
§ THE LORD CHANCELLOR (Lord HALSBURY)
said, that, owing to the accident of the position which he had the honour to hold, he was called upon to pronounce what came to be a dogmatic opinion, which he regretted was not in harmony with what his noble and learned Friend the Lord Chief Justice had just laid down. He thought it could hardly be doubted that, in every text-book, it was accepted as a fact that a Peer must be tried by his Peers for a felony, and by no one else. That had been the current of authorities broadly stated. He was aware of the phrase used in the new text-book of authority which his noble and learned Friend had referred to; but his noble and learned Friend's memory was playing him false in regard to the quotation in question from Hawkins. The language there was guarded; it did not say "a person who is a Peer," but "a person who has a title to the Peerage;" and it might well be thought that the learned writer had very accurately in his view the case referred to in the margin. Such was the point in the case quoted as the Marquess of Dorset's case. So far as one could judge from the report of that 254 case, what happened was that, after the trial, the accused claimed, not that he was a Peer and had established his right to a Peerage, but that he was the person in whom the title to the Peerage was, and that, therefore, he was entitled to be tried by his Peers. So much for the authority of that case. He could not in any way concur with his noble and learned Friend as to the authority of Lord Dacre's case. He was indicted on a charge of high treason; the question was raised whether a Peer could waive his Privilege, and the Judges solemnly decided that he could not. The noble and learned Lord had argued that this rule never applied to misdemeanours; but he had not, he (Lord Halsbury) submitted, given sufficient value to the arguments of the learned Judges with reference to the chapter from Magna Charta which he had construed. It was quite true that the Privilege was applicable only to treason and to treason-felony; and, under the circumstances, it appeared to him that the learned Judges had placed on that chapter a just and proper construction. Speaking always with the deference due to the knowledge and experience of his noble and learned Friend the Lord Chief Justice of England, he was compelled, in answer to him, to say that, according to the best judgment he had been able to form, a Peer was not competent to waive his right to be tried by his Peers, because it was not in the proper sense a Privilege at all, and the difficulty had arisen from the misuse of the word. It was called a Privilege, but that was a misnomer. If the reasoning of the Judges was right, the ground on which it rested was that the Statute—and that was what the Judges said in Lord Dacre's case—prohibited the Crown from proceeding against the Peer except by judgment of his Peers; and if it was a statutable prohibition, he need not tell their Lordships that that was a matter which they could not waive, because it was simply a question of law.
§ LORD FITZGERALD
said, he should hesitate very much before he adopted the view of the case that had been put forward by the noble and learned Lord the Chief Justice. For himself, he thought that this question of trial by Peers was not one of Privilege, but rather of jurisdiction. Magna Charta, 255 was a declaration of the previous law of England, and it contained negative words to the effect that a Peer was only to be tried by his Peers—namely—Nullus liber homo capiatur, &c.†nisi per legale judicium parium suorum vel per legem terræ.It was also laid down that—An Earl or Baron shall not be amerced but by their Peers and according to the manner of their offence.In 1322 Thomas of Lancaster was executed after the Battle of Pomfret; but the judgment of forfeiture was reversed in 1327 on a Writ of Error, the principal ground being that the said Thomas was a Peer and Magnate, and had been adjudged to death otherwise than by the legal judgment of his Peers, the passage from Magna Charta being recited. The case of Lord Dacre was also a strong argument in favour of the view that the right of a Peer to be tried by his Peers was one which could not be waived. Looking, then, at the authorities on the subject, and at Constitutional history, he thought that it was shown to be not a Privilege of the individual, but a right of the House of Peers, which could never be taken from it except by Act of Parliament.
THE EARL OF MILLTOWN
said, that the noble and learned Lord opposite (Lord Coleridge) appeared to be under the impression that the right of a Peer to be tried by his Peers arose from his being a Lord of Parliament. In this instance he (the Earl of Milltown) ventured to think the noble and learned Lord was mistaken; it was a privilege of the Peerage, and had nothing to do with legislative rights. Bishops, though Lords of Parliament, were not triable of nobility, because they were not Peers. The Peers of Ireland and Scotland—whether in Parliament or not—had the right, because they were. Before the Union the Peers of Ireland—which was then a distinct Kingdom—were triable before their own House of Lords; and all their rights and privileges as Peers, except that of personally sitting in Parliament, were expressly reserved to them by Statute. The Act of Union made the two countries one Kingdom with one House of Lords.
§ LORD HERSCHELL
said, he wished to point out that the question was one of some difficulty, and that a learned Judge 256 was placed at some disadvantage in being called upon to decide a matter of this kind off-hand, without the opportunity of searching for precedents, and thus verifying his impressions. While there undoubtedly was some authority in favour of the decision arrived at in the matter by his noble and learned Friend the Lord Chief Justice of England, he (Lord Herschell) was of opinion that that authority was far outweighed by the authorities to the contrary. The case of the Marquess of Dorset was itself open to considerable criticism. He thought that his noble and learned Friend had shown that, on the occasion in question, he took the course which Judges frequently and necessarily took—of deciding according to the impression on his mind at the moment. He concurred with the view that had been expressed by the noble and learned Lord on the Woolsack. For his own part, as far as he was able to judge, the better view seemed to be that a Peer could not waive his Privilege of trial by his Peers.