Procedure for a Trial in the House of Lords
When I first began to write The Prosecution of Mr. Darcy’s Cousin, I set myself the task of learning more of the legal procedures practiced during the Regency Period. The trial in the book is for Major General Fitzwilliam (Colonel Fitzwilliam in the original Pride and Prejudice). We know from Austen’s book that Fitzwilliam is the second son of an earl. Because Major General Fitzwilliam does not sit in the House of Lords, his trial would take place in the court system of the time. But what if it were his father, the earl, who was accused of the crime? What might occur during such a trial?
Beyond its legislative function, the House of Lords may act as judge against one of its own. It served as a court of first instance in trials involving peers, for impeachment cases, and as a court of last result in the case of appeals. [Note: Trials for peers were abolished in 1948 and impeachment cases in 1806.]
A case coming before the House of Lords during the Regency and early Victorian era would practice its form of pomp, as such…
A Grand Jury would indict the peer, with the case appearing before the Court of King’s Bench. The Court judges could not accept a plea except that the crime in question was previously pardoned. If pardon was not pled, then the House of Lords issued a writ of certiorari, which commanded the King’s Bench Court to send the case up to the House of Lords The Lord High Steward presided, but all the members of the House of Lords could argue procedural disputes and vote upon his honour.
**The Lord Chancellor would enter the House in his robes. He would be preceded by the Sergeant, who carried the official mace. A statue passed during the reign of Henry VIII confirmed that the Lord Chancellor could preside over the House of Lords even if not a Lord himself. The Lord Chancellor also served as one of the King’s ministers; he attended the Royal Court. If he were a bishop, the Lord Chancellor received a writ of summons; if an ecclesiastic of a lower degree or a layman, he attended without summons.
John Scott, 1st Earl of Eldon served in the role of Lord Chancellor from 1801-1806; Thomas Erskine, 1st Baron Erskine from 1806-1807; Eldon again served from 1907-1827; John Copley, 1st Barron Lyndhurst finished out the reign of George IV from 1827-1830.
**Black Rod would carry the Lord High Steward’s staff and Garter with his sceptre. The Gentleman Usher of the Black Rod was at the time a retired senior officer of the Royal Navy or the British Army. He is an officer of the English Order of the Garter. His deputy is the Yeoman Usher of the Black Rod.
From 1765 – 1812: Sir Francis Molyneux, 7th Baronet served as Black Rod; From 1812 until 25 July 1832 Sir Thomas Tyrwhitt held the post.
**The Lord Chancellor would assume his seat on the Woolsack as Lord Speaker. In the 1300s, Edward III commanded his Lord Chancellor to sit upon a wool bale to symbolize the importance of wool to the economy of England during the Middle Ages. The Woolsack is a large wool-stuffed seat covered with a red cloth. It has no back or arms. The Lords’ Mace is placed on the rear of the Woolsack.
The House of Lords has two maces dating from the time of King Charles II and from William III. The maces are carried in and out of the two Chambers of Parliament at the beginning and the end of each day.
**Prayers would follow.
**Then the Clerk Assistant would go through a roll call of the peers, beginning with the junior Baron.
**The Clerk of the Crown in Chancery [who prepares royal warrants, letters patent, etc., under the direction of the Lord Chancellor] and the Deputy Clerk of the Crown [who has the custody of the Great Seal of the Realm] make three reverences.
**The Clerk of the Crown kneels and presents the commission to the Lord Speaker.
**The Lord Speaker gives the commission to the Deputy Clerk of the Crown, who is also upon bended knee.
**The two clerks retire with like reverences to the table.
**A call for silence follows.
**The Lord Speaker asks that the King’s commission be read. All persons in attendance must rise and be uncovered as the commission is read by the Deputy Clerk of the Crown.
**The Gentleman Usher of the Black Rod and the Garter Principal King of Arms make their reverences, cross to the woolsack, and sit upon the right hand of the Lord High Steward. Both hold the white staff and present it to the Lord Speaker while on their knees.
**The Lord Speaker would rise, make his reverences to the throne, and assume his seat on the upper step near the throne.
**He would deliver his staff to the Gentleman Usher of the Black Rod.
**The Sergeant-at-Arms would call for silence again.
**The Deputy Clerk of the Crown in the King’s Bench would read the writ of certiorari to remove the indictment and the record of the indictment.
**The Sergeant-at-Arms would make a proclamation for the Yeoman Usher to escort the defendant to the bar.
**The defendant would make three reverences upon approaching the bar and kneel until directed by the Lord High Steward to stand.
**The defendant would then make three reverences: to the Lord High Steward, the peers on the right and those on the left. They would return the reverence.
**The defendant was then directed to a stool upon which he sat. The stool was within the bar and near the defendant’s counsel.
**The Lord High Steward would read the charges against the man.
**The Deputy Clerk of the Crown asked the defendant how he pleaded: guilty or not guilty?
**The Deputy Clerk of the Crown asked the defendant “How will your lordship be tried?” to which the defendant would respond “By my peers.”
**The counsel for the prosecution and the counsel for the defense were announced.
**A proclamation was made for all persons who are to give evidence to appear.
**The court would permit His Grace the Lord High Steward to remove to the table. He was preceded by Garter and Black Rod.
**Black Rod sat on a stool at the corner of the table on the Lord High Steward’s right. Black Rod held the white staff.
**Garter sat on a stool on Black Rod’s right.
**The Sergeant sat at the lower end of the table on the same side.
**The counsel for the prosecution laid out the charges against the defendant.
**Then the trial would proceed, but not necessarily as we think of modern trials with first the prosecution and then the defense speaking. The prosecution would examine the evidence, but generally the defendant was responsible for his countering of the evidence, with points of law addressed as necessary.
**At the end, the counsel were directed to withdraw.
**Witnesses and observers of the proceedings would be directed to withdraw.
**The defendant retired to the custody of the Yeoman Usher.
**The Lord High Steward would return to his chair, if necessary.
**A protestation occurred by the Archbishop of Canterbury for himself and the other bishops in attendance, leaving before the judgment was announced.
**The Lord High Steward explains the methods of proof.
**The HOL is instructed to give their opinion of the guilt for the indictment.
**Observers were permitted into the chambers to view the final outcome.
**A proclamation for silence was again invoked.
**The Lord High Steward would stand and by list call every peer [beginning with the junior baron] to pronounce guilt or innocence.
**The peer would stand [uncovered], place his right hand upon his heart, and give his vote.
**The last to vote was the Lord High Steward.
**The prisoner would be returned to the bar by the Yeoman Usher.
**Sentence was pronounced.
**The defendant then retires.
**A proclamation was made to dissolve the commission.
**The Gentleman Usher of the Black Rod delivers the white staff to the Lord High Steward.
**The Lord High Steward stands uncovered. He holds the staff in both hands, breaks it in two pieces, and declares the commission dissolved.
Much of the procedural information of this post comes from “The Trial of James Thomas Earl of Cardigan Before the Right Honourable The House of Peers, In Full Parliament, For Felony, On Tuesday the 16th of February 1841” from ULAN Press.
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.
Leave a comment to be part of a giveaway of an eBook copy of “The Prosecution of Mr. Darcy’s Cousin.”