Sunday, August 14, 2011

A PEER'S PRIVILEGE post by Emery Lee

Coronets and Nobel Hierarchy:

From Admirals to Generals, politicians to Royal bastards, a peerage has been the highest honour bestowed by a grateful Crown for almost 750 years. Over 2,560 hereditary peerages have been created by the Crown since the mid-13th century, of which 828 still survive. Additionally, 1,130 life peerages have been created in the last one hundred and thirty years, of which 595 are currently sitting in the House of Lords.

But what, precisely, does ennoblement entail?


“That they are free from all arrest for debts, as being the king’s hereditary counsellors. Therefore a peer cannot be outlawed in any civil action, and no attachment lies against his person. This privilege extended also to their domestic servants, as well as to those of members of the lower house, till the year 1770.”

The privilege of freedom from arrest applies to members of both Houses of Parliament, as they must be available to give advice to the Sovereign. This privilege was also adopted by the Constitution of the United States:”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.”

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. The privilege was exercised five times, and abolished in 1841 when James Brudenell, 7th Earl of Cardigan, claimed he would invoke the privilege if he was convicted of duelling, but was acquitted of the charge.

In most cases, this privilege was invoked to avoid imprisonment for debt, but a peer’s immunity only went so far. A peer could, theoretically, be impeached if the House of Commons brought forth charges to the House of Lords, and while the House of Lords could try peers only for felonies or treason, in impeachments, charges could also include misdemeanors.
The last impeachment was that of Henry Dundas, 1st Viscount Melville, in 1806 for misappropriating public money. Impeachment is now obsolete in the United Kingdom.


In criminal causes, they are only tried by their peers, who give their verdict, not upon oath, as other juries, but only upon their honour; and then a court is erected on purpose in the middle of Westminster Hall, at the king’s charge, which is pulled down when their trials are over. 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.


To secure the honour of, and prevent the spreading of any scandal upon peers, or any great officer of the realm, by reports, there is an express law, called scandalum magnatum, by which any man convicted of making a scandalous report against a peer of the realm (though true) is condemned to an arbitrary fine, and to remain in custody till the same be paid.
Under English law defamation was originally considered a matter for the ecclesiastical courts, whose remedy would be to order the offender to apologize. Deemed unsatisfactory by most of those whose good name, or personal honor was offended, many duels arised as a means of redress for a real or imagined injury.

The Statute of Westminster 1275introduced the offence of Scandalum Magnatum, stating; It is commanded, 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.

The purpose was less intended to guard the reputation of the offended, but to safeguard the peace of the kingdom. By providing a lawful remedy, it was hoped that the “Great Men of the Realm” would forbear from violent means of settling disputes. The prohibition against spreading such “false News or Tales” was amplified in several subsequent acts of parliament, which forbade; Any false news, horrible and false tales concerning the Prelates, Dukes, Earls, and other Peers and great Men of the Realm …by which danger, mischief and destruction may happen to the whole Realm. Legislation of 1554 and 1559 expanded the act to include “seditious words.”
Notable examples of scandalum magnatum:

 In 1606 Andrew Melville, the Scottish religious Reformer, composed an epigram critical of the king’s religious sympathies and found himself summoned before the privy council, found guilty of scandalum magnatum and ended up spending four years in the Tower of London.

 On the 10 May 1680 the now infamous Titus Oates who committed to prison for calling the Duke of York a traitor and later fined £100,000 for scandalum magnatum. (Titus Oates was also convicted of perjury, and sentenced to be whipped, degraded, and pilloried, and then imprisoned for life. His judge, the equally infamous Judge Jeffreys commented that “He has deserved more punishment than the laws of the land can inflict.”

 In 1680 that the notorious Colonel Blood who was charged with scandalum magnatum for “fixing an imputation of a most scandalous nature upon the Duke of Buckingham” and found himself imprisoned and charged with damages of ten thousand pounds. (Colonel Blood was released on bail but died soon after.)

Even in March 1771, the printer of the Morning Chronicle found himself hauled up before the House of Lords, and fined £100 and imprisoned in Newgate for one month, for allowing his newspaper to print an “obnoxious paragraph” referring to one of their members in an unflattering light.


Because 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.”Although the privilege of access is no longer exercised, it is yet retained by peers whether members of the House of Lords or not.


 The right to be tried by other peers of the realm instead of juries of commoners (abolished in 1948)
 Freedom from arrest in civil (but not criminal) cases
 Access to the Sovereign to advise him or her on matters of state.
 Peers also have several other rights not formally part of the privilege of peerage e.g. entitlement to use coronets and supporters on their achievements of arms.


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