Wednesday 19 February 2020

The Trial of Peers Before Their Peers - Lord de Clifford

It would be apposite, I thought since the Senate of the United States has recently conducted a trial, to consider how the House of Lords formerly conducted trials.

Until 1948 [1] Peers [2] had the right to be tried in the House of Lords before their Peers. There is a complexity (which I ignore here, but I will return to at another time) between how proceedings occurred when there was no sitting Parliament (where a Court of the Lord High Steward was used) and when there was.

The last time this procedure was used was in 1935, for the trial of the 26th Lord de Clifford for manslaughter. He was acquitted (spoilers). But how did this proceed?

The incident itself

On the 15th August 1935, Lord de Clifford's car (allegedly driving on the wrong side of the road) collided with a car driven by Douglas Hopkins and killed him. Subsequently, a coronial jury found that an "accident involving others" [3] caused Hopkins' death. And consequently, he was charged with a felony [4] and committed for trial at the Old Bailey by Kingston-upon-Thames Police Court on 15th October (or thereabouts).

Preliminary Proceedings

On 22nd October [5] a letter from the Recorder of London dated 15th October was read in the House. As a slight procedural aside, the House had adjourned on 2nd August with a resolution allowing the Lord Chancellor to call them back earlier [6]. For reasons which will become apparent very shortly, the House was recalled primarily to deal with this letter (although a small amount of other business was also despatched).
My Lord, 
With reference to my letter of the 10th ultimo respecting Rex v. Edward Southwell Russell, Lord de Clifford, a Peer of the Realm, I have the honour to inform you that indictments have now been preferred at this Court upon the committal from the Kingston-upon-Thames Police Court.
Lord de Clifford therefore now stands charged with felony, manslaughter, upon an inquisition found by a Coroner's jury, and upon an indictment preferred under the Administration of Justice (Miscellaneous Provisions) Act, 1933. All the recognisances respecting the felony (including bail recognisances) have been enlarged until the pleasure of the House of Lords is signified. 
Lord de Clifford is also indicted for the misdemeanour of driving a motor vehicle in a manner dangerous to the public, and the recognisances respecting this offence have been enlarged until further order by this Court. 
I have the honour to be, My Lord,
Your Lordships' obedient servant, 
Recorder of London.

On 23rd October, Viscount Hailsham, the Lord Chancellor at the time, moved that a Select Committee be appointed to consult the precedents and recommend rules to the House [7]. Later that day, it was announced that Parliament was to be prorogued on the 27th in advance of a dissolution. Hence the alacrity of proceedings.

The Select Committee of eighteen Lords duly met, and their report was considered on the 27th [8] (I actually think the Committee reported the previous day, since Lords practice then as now is for reports to not normally be considered on the day the committee make them).

Not going to repeat all twenty-two rules here, but these are some highlights. First, regulations as to clothing (and hats; it's always hats!)
6. That on the day appointed for the said trial the Lords do meet in the House of Lords in their Robes at eleven of the clock in the forenoon.
15. That none be covered at the trial but the Lords.
17. That the Lord de Clifford be seated within the Bar uncoverd [sic] and without his robes.
Rules 14 and 16 somewhat echo impeachment practice in the United States Senate, albeit across the pond there is less talk of Kings.
14. That a Proclamation to be made in the Court during the said trial be made in the King's name. 
16. That the Serjeant-at-Arms be within the House to make Proclamations, which are to be made in the King's name, for keeping silence.
Tickets were a big thing (I think the Senate does this too, it certainly did for the Clinton trial since I've seen a ticket in person)
19. That eighty seats be reserved for Peeresses for which non-transferable tickets will be issued to Lords of Parliament upon application to the Lord Great Chamberlain at his office, at the House of Lords, and that if the number of applications exceeds the number of tickets available the tickets should be allotted by ballot. 
20. That 200 tickets for places below the Bar be issued: one of these tickets to be delivered to each Lord of Parliament upon application to the Lord Great Chamberlain at his office, at the House of Lords, and that if the number of applications exceeds the number of tickets available the tickets should be allotted by ballot. 
21. That 100 tickets be set apart for Members of the House of Commons.
Perhaps echoing this next rule is the practice of the Chief Justice of the United States presiding in the Senate. In any case, as we will discover in a bit this provision for legal advice was rather more consequential than it would have otherwise appeared.
4. That the Committee are of opinion that the Judges be summoned to attend.
The report, and the rules, were agreed by the House, and Parliament was prorogued and dissolved.

While there is, technically, a method for trying a Peer outside of a sitting Parliament, viz. the Court of the Lord High Steward [9], the trial of de Clifford had to wait.

The New Parliament

Parliament reassembled on the 26th November, and the King's Speech was delivered on 3rd December [10]. An address was sent to the King to request the use of the Royal Gallery for the trial. This was in accordance with the precedents: whereas the trial itself would occur in the Royal Gallery, the Lords would retire to their Chamber to deliberate, and then return to the Gallery to give judgement.

On 5th December, the Earl of Shaftesbury [11] reported that the King had agreed to this [12]. The next line in Hansard is
The Clerk of the Central Criminal Court (Wilfrid Walter Nops, Esq.) attended at the Bar.
which then begins possibly my favourite bit of Parliamentary proceeding ever.

The Lord Chancellor being technically correct but it just feels brusque:
The Lord Chancellor (Viscount Hailsham):  
Clerk of the Central Criminal Court: what have you there?
to which the Clerk replies, this being a rare [13] case of the words of a non-member of either House appearing in Hansard,
The Clerk of the Central Criminal Court:
My Lord, I beg to hand in the return to the Writ of Certiorari directed to the Justices and Judges of the Central Criminal Court in pursuance of the Order of your Lordships' House of yesterday's date.
What had happened was that yesterday, though lost to the online Hansard, their Lordships had issued a writ removing the cause to them. If the term certiorari seems familiar in a US context, it's because it should be: the Supreme Court of the United States still issues writs of certorari to bring causes before it from lower courts.

More Lord Chancellor brusqueness
The Lord Chancellor
Hand them in. 
The House then ordered that Lord de Clifford be arrested.
The Clerk of the Parliaments (Sir Henry J. F. Badeley) received the documents at the Bar.
Ordered, That the Gentleman Usher of the Black Rod attending this House do forthwith take into his custody the body of Edward Southwell, Lord de Clifford.
The Gentleman Usher of the Black Rod (Lieut.—General Sir W. P. Pulteney) acquainted the House that he had accordingly taken the said Edward Southwell, Lord de Clifford, and had him now in custody.
The Gentleman Usher of the Black Rod advanced to the Bar with Lord de Clifford, who, having come to the Bar, knelt.
One supposes that rather than having to be fetched, Lord de Clifford was just waiting outside the Chamber for Black Rod to come collect him.

Their Lordships, not being too fussed on keeping his Lordship kneeling let him rise and gave him an opportunity to address the House
The Lord Chancellor:
My Lord, you may rise.
Lord de Clifford rose.
The Lord Chancellor:
My Lord, this is a fit opportunity for your Lordship to address the House if you wish to say anything. If not, you may retire.
Lord de Clifford bowed and retired.
Now, legally speaking Lord de Clifford was in the custody of the House and, if desired, the House could have sent him to be held in literally any prison in the United Kingdom (though it would have been one in London, obviously). But, instead, like the lower courts had earlier, they admitted him to bail. This, like everything else in this trial, had to occur as a resolution of the House. In this case it was the Chairman of Committees who proposed it
The Chairman of Committees (The Earl of Onslow [14]):
My Lords, I beg to move, That Edward Southwell, Lord de Clifford, be admitted to bail; that he do produce a surety to be bound in £50 and to enter into his own recognizance in £50 for his appearance before the House when he shall be so ordered.
On Question, Motion agreed to, and ordered accordingly.
The Gentleman Usher again attended at the Bar with Lord de Clifford.
The Lord Chancellor
My Lord, I have to acquaint you that this House has ordered that you do produce ​a surety to be bound in £50 [15] and do enter into your own recognizance in £50 for your appearance before the House when you shall be so ordered. 
Lord de Clifford then bowed and withdrew.
In a way, this was the Lords equivalent of the committal proceedings before the magistrates.

The final preparatory matters were undertaken on the 10th, where without debate the House passed a series of orders, viz. [16]
Ordered, That notice be forthwith given to Edward Southwell, Lord de Clifford, to appear at the Bar of this House on Thursday, the 12th day of this instant December, at eleven of the clock in the ​ forenoon, in order to answer to the Indictment which has been found against him.
Ordered, That notice be forthwith given to the bail of the said Edward Southwell, Lord de Clifford, to acquaint him of the said Requisition.
Ordered, That upon the appearance of Edward Southwell, Lord de Clifford, at the Bar of this House on Thursday, the 12th day of this instant December, the Gentleman Usher of the Black Rod attending this House do forthwith take into custody the body of the said Edward Southwell, Lord de Clifford.
Ordered, That in case the said trial shall last more than one day, the Lord de Clifford shall remain in the custody of the Gentleman Usher of the Black Rod.

The Trial

The Clerk of the Parliaments called over the names, beginning with that of the junior Baron, of noble Lords who had signified their intention to be present at the trial of Edward Southwell, Lord de Clifford, indicted for felony. As the names were called noble Lords present stood and answered "Here." Three noble Lords whose names had not been called handed them to the Clerk at the Table.
And thus began the trial [17].

The list of lords read out was taken from the most junior baron present (Lord Roche [18]) up to the most senior duke present (the Duke of Richmond and Gordon [19]). Of some interest later, one should note the presence of the Lord Bishop of Sheffield [23].

Then this entry concludes the list, which requires a small bit of comment (and, sadly, more voluminous footnotes)
Viscount Halifax [25] took his place as Lord Privy Seal.
Section IV of the House of Lords Precedence Act 1539 [26] provides for, inter alia [27] the Lord Privy Seal to precede in honour and seating in Parliament all other Lords, except the two Archbishops and any Dukes of the Blood Royal. Hence his name would be called last - the position of the Lord Chancellor, we will return to very momentarily.

Intriguingly, Viscount Halifax had only been appointed Lord Privy Seal (and thereby Leader of the House of Lords) on 22nd November and this appears to be his first appearance in Hansard in that capacity. Not that anything turns on this curio.

The judges who were summoned attended (well some did) as did Garter King-of-Arms
Four of His Majesty's Judges (Mr. Justice Swift [29], Mr. Justice Branson [30], Mr. Justice Charles [31] and Mr. Justice Goddard [32]) attended to advise on questions of law. 
Garter King-of-Arms [33] was permitted to come to the Table.
Off to the Royal Gallery!
Then the House adjourned into the Royal Gallery, Peers being marshalled in their due order, the junior Baron leading, and the Lord Chancellor (Viscount Hailsham [34]) being at the end of the procession. 
In the Royal Gallery the Clerk of the Crown in Chancery presented the Commission under the Great Seal appointing the Lord High Steward, to the Lord Chancellor, who handed it back to him to read. 
The Commission, appointing the Lord Chancellor to be the Lord High Steward, was then read.
Now, this is important (and far more important than all of the potted biographies in the footnotes). Whereas at the time [35] the Lord Chancellor was ex officio the Speaker of the House of Lords, he did not preside at trials. Instead, this was the duty of the only Great Officer of State more senior than him - the Lord High Steward.

Originally, this office was responsible for the Kings household, as the name suggests. A future blog will go into this in much more detail, but the important thing to notice is that the office has not had a permanent incumbent since 1421, and by then it had all but become a sinecure with the Lord Steward [36] doing the day-to-day work. The Lord Steward at the time, the Earl of Shaftesbury, featured a little earlier, since one of the duties still attached to this role (and to the Lord Chamberlain) is to convey messages from the King to the Lords.

By 1935 the only three duties of the Lord High Steward which remained were to preside at trials in the House of Lords, to bear the St. Edward's Crown at coronations, and to preside at the Court of Claims before a Coronation. The latter two we don't need to worry about here. In the former case, a Lord High Steward pro hac vice was appointed, usually but not invariably the Lord High Chancellor [37]. Essentially the Lord Chancellor got a very short, temporary, promotion.

Hansard doesn't record the trial in detail, and indeed the entirety of the plea and the evidence amounts to four short paragraphs, viz.
The Writ of Certiorari, Return thereto and the Indictment and Inquisition were read. 
The Gentleman Usher of the Black Rod brought Lord de Clifford to the Bar and his Lordship was arraigned by the Clerk of the Parliaments on the indictment, charged with manslaughter. 
Lord de Clifford pleaded "Not Guilty."
At the conclusion of the evidence for the prosecution, Counsel for Lord de Clifford submitted that the evidence disclosed no case which the accused should be called upon to answer.
As noted earlier, the Lords would not deliberate in the Royal Gallery, and so,
House adjourned into the Chamber of Parliament, and it was decided to take the advice of the Judges upon the question whether the submission of Counsel for the defence was well founded.
Although the entire House was actually responsible for making decisions of both law and fact, it seems to have been a common device to consult the judges on questions of law first. A vestige of this process remains in Standing Order No. 77 which requires the Committee of Privileges to sit with three Lords who have held high judicial office when determining peerage claims.

The judges retired to consider things.
House adjourned during pleasure. 
House resumed.
Adjournment during pleasure being the Lords version of "suspending" the sitting as done in the Commons.
The Judges answered in the affirmative the question submitted to them, and it was resolved that the advice of the Judges be accepted.
I have long thought that that is the most circumlocutory way of saying "the judges agreed with the defence". Now something curious happens, remember our bishop from earlier, well,
Then the Lord Bishop of Sheffield delivered a protestation and desired to be absent when judgment was given; upon which leave was given.
By convention, although nothing stopped Lords Spiritual taking part in the trial (notwithstanding that they could not themselves be tried by the House), they would not take part in the verdict and any sentencing exercise which followed. Hence, they would be given leave to absent themselves.
House adjourned into the Royal Gallery. 
Lord de Clifford was unanimously found "Not Guilty." 
The Lord High Steward so informed the prisoner, and the Commission was determined. 
House adjourned to the Chamber of Parliament.
What will have happened here is that the Clerk of the Parliaments will have put the question as to Lord de Clifford's guilt to each peer in turn, starting with the junior baron, who would "on their honour" declare for guilty or not guilty. Not entirely distinct from how the US Senate votes in impeachment trials, as it happens!

And that concludes it.

Follow-up Matters

In the Commons on 16th December, the inevitable questions were asked of the Attorney-General about whether the government proposed to abolish this procedure. The Attorney-General, Sir Thomas Inskip, gave this reply [38]
I have been asked to reply. I should prefer to postpone any statement as to new legislation until the matter can be further considered. I am not aware of any matter in which the administration of the law is not uniform as between peers and commoners charged with an offence, except that in cases of treason, murder, and felony, a, peer has the somewhat doubtful privilege of being tried by his peers.
Meanwhile, in the Lords on 28th April 1936, Viscount Sankey [39] moved the second reading of his Trials of Peers (Abolition Bill). There was a partial attempt at opposition to this, mostly led by Lord Middleton, which in a poorly attended vote failed 62-37. The bill passed through the Committee of the Whole House on 6th May (with a fascinating discussion about whether treason is a felony) and was read a third time and sent to the Commons on 13th May. However, the Commons never took up the bill so it fell at prorogation.

In 1948, the privilege of peerage in criminal causes was finally abolished by the post-war Labour government.


I hope that that was interesting from a procedural angle!

[1] Specifically, by section 30 of the Criminal Justice Act 1948 (11 & 12 Geo. VI cap. 58)
[2] Not "members of the House of Lords"; this privilege also extended to Peers not being Lords of Parliament (in that sense, not the Scottish sense) and wives of Peers, but seems to have not included Lords Spiritual.
[3] In modern parlance this would be something like "unlawful killing"; at the time juries in Coroner's Courts still had the power to name the person to be indicted for an unlawful killing specifically; I am not clear if this happened.
[4] Grand Juries having been abolished in England in effect (if not in form) by the Administration of Justice (Miscellaneous Provisions) Act 1933 (23 & 24 Geo. V cap. 36) only two years before, meaning this is likely the only trial in the Lords which did not begin by a presentment of a true bill by a Grand Jury.
[5] Lords Hansard, vol. 98, cols. 1089-1090 - the Hansard for this day is incorrectly filed on the website, but being the public servant I am, I have already informed the Editor (this being easily my twentieth of these I've spotted now!)
[6] Lords Hansard, vol. 98, col. 1086
[7] Lords Hansard, vol. 98, col. 1133-4
[8] Lords Hansard, vol. 98, cols.1259-61
[9] Practically this would be identical to the House of Lords, since all members of the House would be summoned as Lords Triers anyway.
[10] The Lords Hansard for this day is inexplicably mangled and only contains a morass of provisional orders, which I have likewise reported.
[11] Anthony Ashley-Cooper, 9th Earl of Shaftesbury, K.P., G.C.V.O., C.B.E., P.C., who was at the time the Lord Steward (which is absolutely not to be conflated with the Lord High Steward!)
[12] Lords Hansard, vol. 99, col. 79
[13] Though it was less rare in the past when examining people at the bar of the House was fairly normal.
[14] Richard William Alan Onslow, 5th Earl of Onslow, 5th Viscount Cranley, and 9th Baron Onslow, G.B.E., P.C., D.L., he had previously been Paymaster-General and Under-Secretary for War.
[15] The online Hansard has an OCR error here where this is incorrectly rendered as "250".
[16] Lords Hansard, vol. 99, col. 168
[17] Everything which follows is at Lords Hansard, vol. 99, cols 215-218
[18] Alexander Adair, the Lord Roche, appointed a Lord of Appeal in Ordinary on 14th October 1935.
[19] Normally this is rendered as Duke of Richmond and Lennox; no doubt a herald or someone will fill me in on why Hansard has His Grace as Duke of Richmond and Gordon. Anyway, this was Frederick Charles Gordon-Lennox, the 9th Duke of Richmond, 9th Duke of Lennox, 4th Duke of Gordon, and also 9th Earl of March, 4th Earl of Kinrara, 9th Earl of Darnley (not not that one, the other Earldom of Darnley), 9th Baron Settrington, and the 9th Lord of Tourboulton (which, being a Scottish Lord of Parliament, is not a barony because reasons); and because that isn't quite enough, 9th Duc d’Aubigny in the defunct French peerage. His Grace actually only entered the House on the 23rd October 1935, right at the end of the previous Parliament [20], after the death of his father, the 8th (and 4th and 8th again) Duke on 7th May. His Grace then continued to be a member of the House until his own death in 1989. Interestingly, his first and final speeches were both about road traffic accidents! No, I don't know why I included this footnote either.
[20] Yes, footnote-in-a-footnote, see Lords Hansard, vol. 98, col. 1133
[21] Lords Handard, vol. 107 cols. 374-418 or so, I forgot to write down the exact one.
[22] A single sentence in Lords Hansard, vol. 170 col. 64
[23] The Right Reverend Leonard Hedley Burrows by divine permission [24] Lord Bishop of Sheffield. Burrows was actually the first diocesan Lord Bishop of Sheffield, the see having previously been a suffragan of the Archdiocese of York. Although, interestingly the suffragan post was itself quite new, having had only one incumbent since being erected in 1901, viz. The Right Reverend John Nathaniel Quirk.
[24] Archbishops, and for some reason probably related to that whole County Palatine thing Bishops of Durham, are "by divine providence". More fun facts you always wanted to know. Anyway, scroll back up and carry on with the trial before you too fall down this rabbit hole!
[25] This is Edward Frederick Lindley Wood, who at this time was 3rd Viscount Halifax and 1st Baron Irwin; the latter title having been created for him in 1925 until he inherited the Viscountcy in 1934. He was later created the 1st Earl of Halifax in 1944 after a stint as the 20th Viceroy of India and having been His Britannic Majesty's Ambassador Extra-ordinary and Plenipotentiary to the United States during the war.
[26] 31 Hen. VII. cap. 10 - still, with provisions at section II to cover any future Vicegerents in Spirituals, in force in the United Kingdom and faithfully reprinted as an annexe to the Standing Orders of the House of Lords each time they are updated.
[27] The alia are the Lord High Chancellor, the Lord High Treasurer and the Lord President of the Council, in that order, before the Lord Privy Seal. For completeness, I note that section V then provides for the Lord Great Chamberlain, the Lord High Constable, the Earl Marshal, the Lord High Admiral, the "Great Maister or Lorde Stewarde" and the "Kinges Chamberleyn" to precede all others within their own rank. This final point is of some very minor importance at present. Although the Duke of Norfolk, the Earl Marshal, is Premier Duke anyway so would always be first; the Marquess of Cholmondeley, who exercises the office of [28] Lord Great Chamberlain, is of considerably less ancienty than the Marquess of Winchester and it is by virtue of this Act that he precedes him.
[28] Please do not ask. It's a whole BenBlog of its own.
[29] Sir Rigby Philip Watson Swift, appointed on 21st June 1920
[30] Sir George Arthur Harwin Branson, appointed in 1921 and made a Privy Counsellor (and thus Right Honourable) in 1940. Mr. Branson, as he then was, played a bit-part in the trial of Sir Roger Casement too (though not mentioned in my blog passim because I only found this out right now) as an assistant to the Director of Public Prosecutions.
[31] This is clearly not the Sir Arthur Charles who presided over the trial of Oscar Wilde (and later held my favourite judicial office, that of Dean of the Arches, Auditor, Master of the Faculties and Official Principal, which we will discuss more in a future BenBlog, of probably unyielding length) because he died in 1921. Even after rummaging in the London Gazette I can't work out who he was though.
[32] This is Sir William Edgar Rayner Goddard (as he then was), appointed on 5th April 1932. In 1938 he was made a Lord Justice of Appeal (and thus also a Privy Counsellor), in 1944 he became a Lord of Appeal in Ordinary as the Lord Goddard, and in 1946 he was appointed Lord Chief Justice.[33] This would have been Sir Gerald Woods Wollaston K.C.B. K.C.V.O., appointed by the Earl Marshal in 1930. Previously he had been Fitzalan Pursuivant-of-Arms Extra-ordinary (1902), Bluemantle Pursuivant-of-Arms (1906), Richmond Herald-of-Arms (1919), and Norroy King-of-Arms (1929). In 1944 he stood down as Garter to become the first Norroy and Ulster King-of-Arms, the two offices now being united. His grandfather was a former Garter too, but again this footnote is far too long.
[34] Logically this footnote should have occurred earlier, but I guess putting all the biographies together is more fun. Anyway, this is Douglas McGarel Hogg, the 1st Viscount Hailsham. After two stints as Attorney-General for England in 1922-24, and 1924-28, he was made relunctantly a Viscount and Lord Chancellor. He again had two stints in this role: 1928-9 and 1935-8; in between which he for a time was Secretary of State for War, and he finished off with a brief outing as Lord President in 1938 until his political career was curtailed by a stroke. His son, the 2nd Viscount, disclaimed his peerage in 1963 to pursue his own political career, but now as a life peer himself became Lord Chancellor in time - and like his father had two non-consecutive periods at it. His son also had a political career, though as Minister of Agriculture, Fisheries, and Food not Lord Chancellor, and presently sits in the Lords by virtue of a life peerage too (there was also an expenses scandal in there too, as you do).
[35] Until it was vandalised reformed in the 2000s by the creation of a Lord Speaker.
[36] This office is still extant and still regularly filled, though it itself has atrophied into almost a sinecure with the day-to-day duties now coming under the Master of the Household.
[37] One notable exception being when Lord Denman, as Lord Chief Justice, presided in 1841 at the trial of the Earl of Cardigan. One supposes that, theoretically, if a Lord High Steward had been appointed to carry St. Edward's Crown and a trial of a peer before his peers became necessary he might have had to preside, but this odd coincidence never arose (what would have happened between 1910-11 when there was a Lord High Steward, but he was with the King in India, is anyone's guess).
[38] Commons Hansard, vol. 307, cols. 1399-1340. The curious may wish to know that Sir Thomas later became Lord Chief Justice.
[39] This is the Labour politician John Sankey, 1st Viscount Sankey, who was the Lord Chancellor bracketed by both of Viscount Hailshams tenures. Small world!
[40] This would have been Colonel Michael Guy Percival Willoughby, the 11th Baron Middleton K.G., M.C., T.D., E.D.; and the Middleton's have form in opposing constitutional changes, since the 12th Baron, Digby Michael Godfrey John Willoughby, became rather infamous over his opposition to the House of Lords Act 1999.

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