A Writ of Error as a Plot Point in “The Prosecution of Mr. Darcy’s Cousin”

For my latest cozy mystery, part of the action is a trial set in 1816. Many of the tenets of court law we now accept as commonplace were not part of the court system during the Regency Period. For example, the defendant would be expected to argue his own case. A barrister could provide the defendant advice on points of law, but the proof of innocence rested purely on the defendant’s shoulders. Neither were witnesses for the defendant “required” to attend the trial’s proceedings. Needless to say, a writ of error could send the outcome of the case to a court of appeals, especially in the case of a wealthier defendant, who could afford the expense.

In The Prosecution of Mr. Darcy’s Cousin, Fitzwilliam Darcy’s cousin, Major General Fitzwilliam (Colonel Fitzwilliam in Jane Austen’s Pride and Prejudice) is accused of a series of crimes of which he has no memory for he is suffering from what we would now call “PTSD.” (There was no official name for the stress of war at the time.)

Darcy must use every bit of cunning he possesses to prove his cousin innocent for it would be a great victory for the “unwashed masses” to convict the second son of an earl for the crimes. All of London is set against the major general. If Darcy does not know success at the trial, then his only hope would be a writ of error. But how does a writ of error become a point of appellation in the British legal system? And what role would the House of Lords play in this process? For those of us in the States, many facets of the English legal system is as foreign as the statute of limitations in juvenile cases. So, let us explore some of the differences.

“The Sixth Amendment to the United States Constitution guarantees an accused the right to representation by counsel in serious criminal prosecutions. The responsibility for appointing counsel in federal criminal proceedings for those unable to bear the cost of representation has historically rested in the federal judiciary. Before the enactment of the Criminal Justice Act in 1964 (CJA), there was no authority to compensate appointed counsel for their services or litigation expenses, and federal judges depended on the professional obligation of lawyers to provide pro bono publico representation to defendants unable to retain counsel.“ (United States Courts Services and Forms)

However, for many centuries in England, the law permitted appeals to the House of Lords. The HOL also served as the final Court of Appeals for Scotland and Ireland. The Appellate Jurisdiction Act of 1876 continued the appellate jurisdiction of the House, as well as to provide the suitor a statutory right of appeal to the House of Lords. The 3rd Section of that Act says an appeal from any order or judgment of her Majesty’s Court of Appeal in England lies to the House of Lords.

In Ireland, the Irish Judicature Act of 1877 gives the right of appeal to the House of Lords in all decisions, judgments, decrees or orders from the Irish Court of Appeal that were previously appealable to the House of Lords or to the Privy Council. The right of appeal by way of writ of error from the decision of the Queen’s Bench Division of the Irish High Court of Justice is also preserved in this Irish Judicature Act.

The Scots made no alteration in the right of appeal. The Appellate Jurisdiction Act of 1876 provided Scotland the right of appeal to the House of Lords from any order or judgment of any court of Scotland from which error or an appeal lay to the House of Lords by common law or by statue at the time of passing the act.

An appeal of a civil case in the English courts must be sent up by the Supreme Court of Judicature in England (Her Majesty’s Court of Appeal).The only judicial proceedings by which matters of a criminal nature could formerly be brought before the House of Lords was by writ of error.

A writ of error is the only means a judicial proceeding in a criminal matter may be brought before the House of Lords. From ancient times, a writ of error could be brought in England at common law, both in civil and criminal proceedings from inferior Courts of Record to the Court of Queen’s Bench and from thence direct to the House of Lords. Numerous statutes define the means by which a writ of error was brought to the attention of the House of Lords. The writ must first come before the judges or barons of the other two courts in the Exchequer Chamber before coming to the House of Lords.

Time limitations for a writ of error in a civil case originally was set at twenty years. The Common Law Procedure Act of 1852 abolished writs of error in civil cases, but they remained in criminal cases. Such was true until the Judicature Acts of 1873 and 1875. The acts abolished writs of error in bills of exception and proceedings in civil cases, but nothing in the acts affect the practice and procedure in criminal proceedings.
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Unknown-3For more information on the legal system, I would recommend Charles Marsh Denison and Charles Henderson Scott’s “The Practice & Procedure of the House of Lords in English, Scotch & Irish Appeal Cases Under the Appellate Jurisdiction Act, 1876.”

 

 

 

 
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PoMDC Cover-2-2The Prosecution of Mr. Darcy’s Cousin: A Pride and Prejudice Mystery from Pegasus Books

Fitzwilliam Darcy is enjoying his marital bliss. His wife, the former Elizabeth Bennet, presented him two sons and a world of contentment. All is well until “aggravation” rears its head when Darcy receives a note of urgency from his sister Georgiana. In truth, Darcy never fully approved of Georgiana’s joining with their cousin, Major General Edward Fitzwilliam, for Darcy assumed the major general held Georgiana at arm’s length, dooming Darcy’s sister to a life of unhappiness.

Dutifully, Darcy and Elizabeth rush to Georgiana’s side when the major general leaves his wife and daughter behind, with no word of his whereabouts and no hopes of Edward’s return. Forced to seek his cousin in the slews of London’s underbelly, at length, Darcy discovers the major general and returns Fitzwilliam to his family.

Even so, the Darcys’ troubles are far from over. During the major general’s absence from home, witnesses note Fitzwilliam’s presence in the area of two horrific murders. When Edward Fitzwilliam is arrested for the crimes, Darcy must discover the real culprit before the authorities hanged his cousin and the Fitzwilliam name knew a lifetime of shame.

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About reginajeffers

Regina Jeffers is the award-winning author of Austenesque, Regency and contemporary novels.
This entry was posted in British history, Great Britain, Jane Austen, Living in the Regency, real life tales, Regency era and tagged , , , , , , . Bookmark the permalink.

4 Responses to A Writ of Error as a Plot Point in “The Prosecution of Mr. Darcy’s Cousin”

  1. What a roller-coaster of a story this promises to be, with a wealth of information on legal wrangles, and gripping challenges our favourite heroes have to face! Thanks for yet another amazing story, Regina!

  2. Suzan says:

    Sounds fascinating

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