§ VISCOUNT SANKEY rose to move to resolve, That the present system of trial of Peers by Peers has outlived its usefulness. The noble and learned Viscount said: My Lords, the object of this Motion is to ascertain the opinion of your Lordships upon the question. If the Motion commends itself to you, you will be asked in the near future to grant leave for the introduction of a Bill abolishing this procedure, and subsequently to give it a Second Reading. A great novelist has said that the law is an ass, but the student of law and of history can generally find some good reason for our customs and our legislative enactments. It is true that at times Parliament has made a mistake. It is true that in the fuller knowledge of to-day and, perhaps, of wisdom after the event, we can at times see that the course pursued by Parliament has been wrong and the reasons given for it unsound. But, after all, whether a law or a custom is or is not necessary is a question for the times. What is necessary to-day may be unnecessary centuries hence when conditions have changed.
§ That great novelist, as I have stated, said that the law is an ass, but no such sweeping generalisation can be supported. 382 If a procedure or a law has outlived its usefulness, its continuance is rightly open to censure and may cause difficulties and embarrassment when it falls to be followed in circumstances where it is no longer necessary and for purposes where it is no longer available because a better way of achieving the desired results has been found. In order to satisfy your Lordships that the trial of Peers by Peers is no longer an advantage, permit me to discuss, firstly, the present position of the procedure; secondly, its history and the reasons for it; thirdly, why it is no longer necessary and the disadvantages of its continuance; and lastly, what is the best method to pursue in regard to the matter to-day. At the outset there are two difficulties, the first being that your Lordships are so familiar with this subject that you will be hearing what all of you already know; but this debate, like other debates in our House, may reach a large audience outside these walls. The second difficulty is that there is such a wealth of authority on this topic that it is not easy to state shortly how the matter lies. Allow me, therefore, for the sake of brevity to sacrifice some details upon which perhaps a rigid accuracy might insist.
§ First, my Lords, as to the present position of the procedure. It is probably best stated in The Law and Custom of tire Constitution, by the late Sir William Anson. That learned author says that a Peer indicted for treason or felony or misprision of either has a right to be tried by his Peers. This privilege was extended to Scottish and Irish Peers by the Act of Union, and to Peeresses by an Act of the reign of Henry VI. If Parliament is sitting, the Lord High Steward presides and all Peers are entitled to attend the trial, and all Peers equally with the Lord President are judges both of law and of fact. If Parliament is not in session the case goes before the Lord High Steward's Court, and such Peers as sit with him are judges of fact only, the Lord High Steward himself deciding all questions of law. It is quite unnecessary to say anything more about the Lord High Steward's Court. The first recorded instance of a trial in that Court was in 1400, and the last was in 1686, when Lord Delamere was tried for treason before Jeffreys. Misprision of treason, as your Lordships are aware is committed by a 383 person who knows of a treason and conceals it and does not give information to the proper authority.
§ Now let me turn to the history of the procedure and the reasons for it. The trial of Peers by Peers for treason and felony is undoubtedly of very ancient origin. The fact that the Lord High Steward presides carries us far back in our history, for he occupies that position because in early days the Lord Chancellor was an ecclesiastic and, as such, he could not meddle with matters of blood; that is to say, he could not take part in the trial of a person who, if convicted, might be sentenced to death. The origin of this procedure is lost in the mists of antiquity. In the trial of Lord Cornwallis in the Lord High Steward's Court in 1678, Lord Chancellor Finch, afterwards the Earl of Nottingham, presided as High Steward. Lord Nottingham was a great master of equity, and in the course of a speech which is described in the State Trials as an "elegant" speech, he committed himself to a statement that this privilege was to be found in the footsteps of the Saxon Monarchy, when Godwin, Earl of Kent, was tried before the Earls and Barons.
§ There has been considerable controversy as to whether Article 21 of Magna Charta does or does not refer to this method of trial of Peers by Peers, but whether that Article creates or renews this privilege we need not stop to inquire. The late Sir James Stephen, in his History of the Criminal Law, says, with perfect accuracy, that the trial of a Peer by Peers in case of treason or felony has never at any period of English history been either questioned, invaded or modified in any way at all, with some small exceptions. Certainly it has lasted to our times. Since the end of the reign of George II there have been six such trials. In 1760 Lord Ferrers for murder. In 1765 Lord Byron, also for murder. In 1776 the Duchess of Kingston for bigamy. In 1841 Lord Cardigan for firing at Captain Tucket in duel. In 1901 Lord Russell for bigamy; and the recent trial of Lord de Clifford for manslaughter, in which many of your Lordships now present took part.
§ As to the reasons for this procedure Sir William Houldsworth, who has written the greatest book on the history of English law, is of opinion that it may be found as far back as the reigns of Henry II and Edward I. There had 384 been anarchy in the reign of Stephen, with all its attendant miseries, and this probably made men willing to accept the bureaucratic and judicial reforms by which Henry II and Edward I extended the jurisdiction of the King's Court. To do this they had to create a number of royal officials, a proceeding not very palatable to the great Barons of the realm, who were anxious to protect themselves against these royal officials and for that purpose to reserve the right of trying one of their own members for treason or felony before themselves.
§ In this they probably exercised a wide discretion, for treason was in the nature of a political offence, and they preferred to be tried by their own number rather than by officials who were opposed to them. Your Lordships, too, will not forget the serious results which followed under the old Common Law on a conviction for treason or felony. On attainder for treason a man forfeited his property to the King. On attainder for felony his lands and tenements eventually escheated to his superior lord. Attainder also produced corruption of blood; that is to say, a man attainted, after attainder, could not inherit nor could anybody inherit through or of him. I need not weary your Lordships, for reasons which I will give in a minute, by pointing out to you how the rigour of the Common Law was mitigated by statutes like De Donis, I think in 1285, nor need I weary you with a description of the law of treason in the reign of Henry VIII; but it is not surprising that when the consequences of a conviction for treason or felony were so serious the Peers insisted upon the trial of one of their number for such an offence being held before themselves.
§ Now let me turn to the question why this procedure is no longer necessary, and the disadvantages of its continuance. My Lords, even if the reasons which I have ventured to indicate just now are true, they no longer exist. Your Lordships no longer run the risk of a trial before hostile officials, and the disastrous consequences to property, which followed upon a conviction for treason or felony, have been removed by the Forfeiture Act of 1870, which provides that no conviction for treason or felony shall cause any attainder or corruption of blood, or any forfeiture, or escheat. Lord Chief Justice Coke held that a nobleman could 385 not waive this privilege of being tried by his Peers, and this was in accordance with the opinion Of the Judges in Lord Dacre's case in the reign of Henry VIII. But the result is that a Peer may have to wait some time for his trial. There is another disadvantage. The same facts may point either to a felony or to a misdemeanour having been committed. Even if a felony would have to be tried in this House, a misdemeanour would have to be tried at the Central Criminal Court, or at one of the Assizes, and so even if the noble Lord were acquitted in this House of felony he might have subsequently to stand his trial on the charge of misdemeanour, say, at the Assizes. Now, no doubt it was quite right in the recent trial—when it was held in this House that there was no evidence against the noble Lord, Lord de Clifford, on the charge of felony—not to offer any evidence against him on the minor charge at the Central Criminal Court; but this is a result which does not necessarily follow, and there may be the double anxiety and doable expense of two trials. Not very much of a privilege!
§ It would appear therefore that the reasons for this procedure no longer exist. There are Courts in this country which can be relied upon to do justice between the Crown and a prisoner, quite irrespective of the fact that the prisoner happens to be a Peer. Why should there be any fear that the trial of a Peer for felony should be any less fair than the trial of a Peer for misdemeanour? Besides, the distinction between felony and misdemeanour nowadays has almost become an arbitrary one, so far as the heinousness of the offence is concerned. Let me make it quite clear that in the instances I am about to offer I am only putting hypothetical cases. A noble Lord, the chairman of a company, may swindle a gullible public out of hundreds of thousands of pounds. That may be a misdemeanour for which he would have to take his trial at the Central Criminal Court or the Assizes, and if convicted he would receive his sentence there. On the ether hand, if a noble Lord were to steal a silver matchbox, worth, say 50s., that is a felony for which he would have to be tried in this House. My Lords, pageants have their uses. All great nations have resorted to them. After the War, when the wheels of triumph moved slowly up the shouting streets, 386 in peace on great national occasions such as that of the Jubilee in May last, and at great State functions like the opening of Parliament. But no one wants a criminal trial to be a pageant. In a Court of Law let everything be done decently and in order. A criminal prosecution is the occasion for a judicial inquiry, not for a theatrical display.
§ Let me now turn to the recent trial. On August 15 last in the early hours of the morning Lord de Clifford was driving a motor car when, unfortunately, he came into collision with a motor car driven by a Mr. Hopkins. Mr. Hopkins was killed. On August 19, four days later, a coroner's jury returned a verdict of manslaughter against Lord de Clifford, and on September 10 an indictment was preferred against him at the Central Criminal Court for the felony of manslaughter, and to it was added a minor charge for a misdemeanour. Had Lord de Clifford not been a Peer that case would have come on and been disposed of at the Central Criminal Court within a day or two. But Lord de Clifford had no option. He had no right to be tried there, and the case was sent to your Lordships' House, where the trial took place on December 12. The delay was unfortunate, but it could not be helped. It was not much of a privilege to have to wait for three months with this charge hanging over his head. The case was one of the simplest possible character. Dozens of such cases, unfortunately, nowadays are tried either at the Central Criminal Court or at the Assizes up and down the country. There were eight witnesses. Four of them were formal; as to the other four, two were persons who had been in the car of the deceased man at the time of the accident, two were police constables who came up after the collision. Fewer than 400 questions altogether were addressed to the witnesses.
§ Now at the Central Criminal Court that case would have been tried by a Judge and a jury of twelve. There assembled in your Lordships' House to hear it fifty Barons, eleven Viscounts, sixteen Earls, three Marquesses, three Dukes, a Lord Privy Seal and a Lord High Steward—altogether eighty-five. There is nothing to be said against the numbers. If this sort of procedure is allowed to continue you must expect 387 those numbers. Indeed if all your Lordships had exercised your right to attend— or may I say performed your duty of attending?—the learned advocates would have found themselves addressing 21 Dukes, 27 Marquesses, 125 Earls, 75 Viscounts, and 461 Barons—astronomical figures for a Court of Justice. There is nothing to be said against the attire that your Lordships wore. Cocked hats are proper, traditional, and indeed necessary in such cases. At the Central Criminal Court a junior barrister competent to conduct the proceedings could have been had for a fee of, say, fifteen guineas. Before your Lordships' House, in this most simple of all cases, there appeared for the Crown the Attorney-General, the Solicitor-General and two Treasury Counsel. There is not a word to be said against it, it was probably the proper thing to do having regard to the majesty of the Tribunal.
§ Four learned Lords were taken from their work at the Law Courts in order to advise your Lordships on any point of law which might arise during the trial. Perfectly proper and traditional, and what must be expected if this procedure is allowed to continue. But be it remembered that nowadays your Lordships have a number of learned Lords of Appeal in this House. Among the Peers who sat to hear this ease were the Lord Chief Justice of England, the noble and learned Viscount, Lord Finlay, who is a Judge of the King's Bench Division, and the noble and learned Lords, Lord Atkin, Lord Wright and Lord Roche, all of whom had been Judges of the King's Bench Division and had probably tried dozens of cases of this character. And yet these learned Lords in this case had the advantage of four Puisne Judges to tell them what the law was.
§ At the Central Criminal Court this case would probably have lasted a couple of hours and cost £35. Your Lordships tried it with great expedition, and we are told the cost was £700, not to speak of the time of the learned Judges who were taken off their work to come here. At the end of the case for the prosecution the learned Counsel for the defence submitted that there was no case to answer, and your Lordships retired to consider your decision. After a short absence you returned and upheld the submission. 388 Parturiunt montes! Was this expenditure of judicial time and public money justifiable?
§ Let me now turn to the question as to what is best to be done in the matter to-day. About eighteen months ago a scheme was in hand to consolidate the Criminal Law, and good progress was made with the first part of it, the consolidation of the procedure. One of the proposals was to abolish the distinction between felony and misdemeanour, and had that proposal been accepted it might have solved the present difficulty. As your Lordships know, in the case of felony every juryman has to be sworn separately, and in the case of a misdemeanour all twelve are sworn at one and the same time. By adopting the latter procedure, you would save about four to five minutes in every case that is now ranked as a felony, and in the aggregate that would amount to some days. But it is not practicable at the present moment to abolish the distinction between felony and misdemeanour. It means looking into a very large number of Statutes, and considering a great number of sections, some of which it might be necessary to repeal, and their repeal would not be mere drafting, but a question of moment. In my submission the best way of dealing with the matter is to pass a short Bill abolishing this procedure.
§ It is not necessary to inquire whether treason and felony are the same, they are always treated as separate in the books; but technically perhaps treason is a felony. The noble Lord, Lord Rankeillour, has put down an Amendment to this Motion, the object of which is to reserve the right of trial in cases of treason. At first sight one cannot help having sympathy with that proposal, but on second thoughts one doubts the wisdom of it. May I tell your Lordships why? The first difficulty is the difficulty of numbers. The numbers in the House of Lords are now beyond all compare greater than they used to be. Roughly speaking in the Middle Ages the number of Peers summoned to this House was round about fifty. In the reign of Henry VII—Henry VII, if one may say so, was perhaps an arbitrary King—the number of Peers was reduced to twenty-nine, but in the reign of Henry VIII and in the following reigns the numbers were fifty-one or fifty-two.389
§ VISCOUNT SANKEY
It excludes the Spiritual Peers because we are not concerned with them. When James I came to the Throne, he, I am afraid, awarded many Peerages, with the result that in the first Parliament of his reign 82 Peers were summoned, in the last Parliament 96; and when the Restoration time came in 1660, there were: 129 Peers summoned to your Lordships' House. Nowadays there are between 700 and 800. There is all the difference between a House of those small numbers and a House of these large numbers. Besides, your Lordships may think it advisable to allow the trial for treason to go before a judicial tribunal of the nature of a Judge and jury.
Let us just consider for a moment what might happen ten years hence. Assume a noble Lord is indicted for treason. I do not want to be a prophet, but it would probably be something in the nature of a political offence. Now which would be the best from the public point of view, which would be best in the interests of your Lordships' House: to allow a trial of that character to go before a Judge and a jury in what is beyond dispute a judicial atmosphere, with this attendant advantage that there would be a right of appeal to the Court of Criminal Appeal and possibly to this House on a point of law, or would it be an advantage to the country and to your Lordships' House to try that case here with a liability to have between 700 and 800 judges assembled, all of them judges of law, all of them judges of fact, with all the attendant difficulties and with the inevitable criticisms? Your Lordships' opinion on this point will be valued, but I submit that it would be better to pass the Motion as it stands in any event. The noble Lord's point seems to me to be a Committee point. In conclusion, the Lord Chief Justice of England asks me to say that he is absent on circuit but he wishes to support this Motion. I am sorry it has taken me such a long time to put it before your Lordships, but submit that a case has been made out, and I beg to move.
§ Moved to resolve, That the present system of trial of Peers by Peers has outlived its usefulness.—(Viscount Sankey.)
§ LORD RANKEILLOUR had given Notice of an Amendment—to insert, 390 after the second "Peers," the words "in cases of felony." The noble Lord said: My Lords, in moving the Amendment which stands in my name, I feel considerable trepidation in following so great an authority as my noble and learned friend Lord Sankey. At the same time I think your Lordships will agree that this is a matter that cannot be decided purely by judicial authority and that all your Lordships, laymen or lawyers, have a right, and it may be a duty, to express and assert your opinions upon it. Before I come to the substance of the matter, may I very briefly reply to two points that the noble Viscount has just made? The first is the technical point as to whether there is a distinction between treason and felony. I base my assumption that there is such a distinction on the standard work of Lord Halsbury's Laws of England, in which it is most categorically laid down; that is a work which I may remark has been brought up to date under the auspices of the present Lord Chancellor. Then there was the noble Viscount's point about the great numbers that would be necessary, or might appear, in a case whether of treason or felony. Surely, if that is a valid point, it is not past the wit of man, it is not past the wit of your Lordships, to devise a plan whereby the whole body of your Lordships might constitute a panel from which an acting tribunal might be constituted.
§ However, I wish to come to the merits of the question apart from these, what I may call, lesser considerations. I should not be in favour, as I confess I am, of seine alteration in the present practice merely on the ground that the present practice is an anomaly. Our constitution and this House are full of anomalies. What greater anomaly could there be than the position of the Lord Chancellor—head of the Law, distributor of ecclesiastical patronage, one who takes an active part in appeals and is at the same time a Cabinet Minister, with all the attributes, the unavoidable attributes, of a partisan? But it does no harm. He does not in any way abuse his position or subordinate one of his duties to another. At the same time I confess that in theory the appeal jurisdiction of your Lordships' House is an anomaly. It is an anomaly that even in theory there should be any confounding of the legislative and judicial functions. As a matter of fact, it has some considerable disadvantages 391 because it has been shown to lead to misconception and misrepresentation, particularly in what was said with regard to the Taff Vale decision a considerable number of years ago and, if I am not mistaken, with regard to the Scottish rent case a few years ago, with which the Lord Chancellor is familiar. Incidentally I may remark that it is open to criticism on account of the very difficult and indifferent conditions under which litigants have to appear at the Bar of this House.
§ Therefore, though I am not concerned with anomalies as such, I am concerned with any anomaly which is either harmful or gravely inconvenient, and I must say I think, as regards the present practice, the noble Viscount has made out his case that it is, at any rate, gravely inconvenient. I cannot myself defend a system whereby what may amount to a mere act of carelessness brings the alleged offender under your Lordships' jurisdiction while some crime of infinitely greater magnitude is, for technical reasons, sent to a Judge and a jury. But if there is a remedy it need not be by abolishing your Lordships' jurisdiction. It surely might be possible, without abolishing the distinction between felony and misdemeanour, to redefine the nature of felony or, at any rate, the graver felonies and keep that class of case in your Lordships' House. I do not advocate that. That is a matter of great technique on which I am not qualified to speak. But in accepting the main gist of this Motion I must not be understood as agreeing that the whole jurisdiction of your Lordships' House should be done away with, but only that the jurisdiction as it at present exists needs a change.
§ Now I come to the offence of treason. This surely is on a different footing. Treason is a very special offence, not perhaps in the scale of morals but in the scale of gravity as against the State. Among offences against the State there is no higher offence, and this was of course recognised by our ancestors in the very extraordinary and horrible sanction that was provided for it. But if it is a grave offence in itself, it is a specially grave offence in a legislator; and if the legislator, as might easily happen, is also a Privy Councillor, it is an offence the gravity of which cannot be exaggerated, and I submit that such an offence should not be left to a single Judge and a 392 common jury. Of course I may be told there would be a trial at bar, but a trial at bar is not the right, as I understand, of the indicted person. It can only be granted by the Government and, I think, moved for by the Attorney-General. If I remember rightly, he has to move for a transfer of the action into the King's Bench.
§ Then, of course, if you apply this principle of trial by members of the same House you might have it said that it should be applied to the House of Commons too. Well, it is one thing to acquiesce in a practice that has a tradition behind it—and I submit, in the case of treason it does no harm and presents no inconvenience in practice—and it is another to introduce it into a new sphere. Beyond that I think the Commons are a more changing body and are more susceptible to the passions of the moment. For instance, I do not believe that your Lordships would be capable of the extraordinary display of partisanship that arose, according to the Parliamentary history of the time, over the question of the impeachment of Lord Melville, to say nothing of the proceedings much earlier against Lord Strafford. I believe that in the rare case of an indictment for treason coming before your Lordships' House, your Lordships would approach it with a less bias than would the members of another House.
§ It is said that cases of treason are rare generally, and particularly among your Lordships. There has not been, I think, a case since 1747, but if a case is so rare it is the more an argument that when it does arise it should have a special tribunal of the utmost circumstance and responsibility to try it. Because it has not arisen for nearly two hundred years it does not follow that it might not arise again. I think it quite possible, and I hope I should excite no apprehension in the mind of any noble Lord when I say that a case might arise in which the affiliation of some noble Lord to a foreign Power engaged in active propaganda for the subversion of other Governments might place him in a position of being held prima facie to be aiding the King's enemies. In such a case I am sure he would receive a better trial here than he might easily get before a common or a special jury. Therefore, I submit that, in treason, the present procedure, perhaps with a modification as to principles, 393 should stand. I do not plead this from any rooted aversion to change. On the contrary, like many others of your Lordships, I think changes in the constitution and powers of your Lordships' House are most necessary, and that, as they now stand, the constitution and the powers constitute a grave menace to the liberties of the people and to the stability of the Crown. But this is not the time to argue that question. In this far lesser matter I would say that what is harmful or gravely inconvenient should be altered and what is not harmful should be retained. I ask your Lordships not to sacrifice tradition to a needless and pointless uniformity. I beg to move.
After the second ("Peers") insert ("in cases of felony").—(Lord Rankeillour.)
§ THE EARL OF HALSBURY
My Lords, I have the greatest sympathy with the speech that has been made by the noble Lord who has just sat down and with his Amendment, but I am afraid I go further than he does because I am against the original Resolution altogether. I desire that we should keep our old tradition. I have listened with some care, as I always do, to what fell from the noble and learned Viscount opposite, and I heard him mention certain matters that rather astonished me. Objection was taken to a trial in this House because of its pageantry. I think that that point would have come with a little greater strength had it come from any noble Lord who was present at either of the trials that have taken place in your Lordships' House in our lifetime. I certainly did not see in either, and I attended both, anything in the nature of pageantry. What. I saw was a very impressive trial of a most judicial kind.
The next thing I tried to find out from the noble and learned Viscount was, what was his objection to this particular procedure, and I am bound to confess that I failed to see it. He said that a Peer who has to come for his trial before his Peers may have to wait some time for the trial. That happens in ordinary cases. If a person is unfortunate enough to have committed an offence just before the Long Vacation and he is committed by the magistrates too late to take his trial at the Assizes then going on he will, if it is a serious case, have to wait to stand his trial until the next Assizes. I am quite aware that the law has been to 394 a certain extent modified and that a great many more of these cases can be sent to Quarter Sessions if that procedure would produce a quicker trial. In some cases they can be sent to the Old Bailey if that would produce a quicker trial. Nevertheless there may be a very considerable wait between commitment by the magistrates and trial before Judge and jury; that is, in an ordinary case.
Another point that occurred to me was this. There need not have been so much delay in the case of the trial of Lord de Clifford. It is perfectly true that your Lordships' House was not in session, but there would have been no difficulty whatever in constituting a Court of the High Steward and summoning such Lords as lie thought proper to try the case. It is not against tradition, and it could have been done. I do not see myself that that was a very great objection to this form of trial. The next thing suggested is that it may result in two trials, one before your Lordships for felony, followed by another before another Court for misdemeanour. In many cases there may be two trials. I will mention one case, although I agree it was one of two felonies. A man was indicted for murder and on that indictment he was acquitted. He was promptly re-arrested and tried on the same set of facts and convicted of burglary. There were two trials, one after the other. There have been many cases where a person has been acquitted of felony and has had to stand his trial again for misdemeanour. I do not see that there is any more hardship in a trial before your Lordships for felony being followed by another for misdemeanour. Of course, where it is quite obvious that acquittal by your Lordships on the charge of felony would be followed by acquittal in the second trial for misdemeanour it would be quite proper for the Attorney-General, as in this case, to offer no evidence in another Court.
So far as I could follow the noble and learned Viscount those were the only reasons given why this procedure should be altered. What I did hear was a lot about the history of how this procedure came into being. We were also told many things, such as that it was never questioned and that it had never been modified, but that now it was objectionable. Why? Is it simply because it is an old tradition? I cannot quite understand what is in the mind of the noble 395 and learned Viscount. Is it possible that the lines of some favourite poet run in his head and that in the watches of the night he thought he heard a voice saying "Sankey, I charge thee fling away tradition. By that sin fell …"? I do not quite know how it goes on. Is that a possible reason which inspired him to come here, with no other reason except that this Court is old, and ask your Lordships to do away with it? I suggest that a thing that has worked well is not necessarily bad because it has been handed down to us by our fathers, and if there is no other reason—and I found none in the noble and learned Viscount's speech that was adequate—I do not see why it should not remain.
There are two other things I desire to say. The noble and learned Viscount said that this last trial cost £700. Why? I have not the least idea. There is no reason why it should have cost a shilling more than a trial at the Old Bailey. Why was it that we sat in a room outside instead of sitting in this Chamber, as has been done before? I have heard it said that to sit in this House would be inconvenient. So far as I can make out that objection is founded on an incident in the trial of Lord Cardigan which took place in this Chamber. When Sir William Follett, who was defending, took objection to certain evidence which the Attorney-General proposed to tender, the Lord High Steward said that if the point were argued the House would have to be cleared, which was always inconvenient, and suggested that the matter should be postponed until the end, when the House would have to be cleared in any event. It is of course highly inconvenient to clear the House, but it is an inconvenience that your Lordships undergo every time you go to a Division. It is an inconvenience that happens in other Courts when the Judge is sitting with a jury. Over and over again objection is taken with regard to some evidence and it is thought that the jury should not be present when the argument takes place, whereupon the jury bailiff is summoned and sworn, the jury are taken out of Court, a room has to be found for them and when they are brought back they have to be checked over before the trial proceeds. That is inconvenient, but in such cases it is necessary.
396 The last thing about which I want to say something is on the present position of the classification of offences as felonies or misdemeanours. I entirely agree with the noble and learned Viscount and with the last speaker that the present position is absolutely wrong. In an old and simple State there were simple and obvious crimes—murder, manslaughter, rape, forgery, stealing and things of that kind. Those were serious offences and they were all felonies. But when we got a more complicated State, greater ingenuity was displayed by the people who wished to do wrong, and they had to be dealt with by Statute. The fashion came in of calling those new crimes misdemeanours as a rule, although I agree that there are certain exceptions.
The noble and learned Viscount gave an example which we can appreciate perfectly well when he said that a person who spent years of ingenuity in swindling the public of many hundreds of thousands of pounds had committed a much more serious crime than the felony of a small child who snatches an orange from a barrow. I would respectfully suggest to the noble and learned Viscount that it would be better if he would expend his ingenuity in thinking out a reclassification of felonies and misdemeanours—a thing which is long overdue—and that we should adhere to the old tradition that when the more serious crimes are charged against Peers they should be tried by your Lordships' House, and that the lesser ones should go to the Courts where misdemeanours are tried to-day. I hope your Lordships will not accept the Motion of the noble and learned Viscount, but will say: "We intend to keep that which our fathers handed down to us which we believe has worked well and will continue to work well."
§ LORD CARNOCK
My Lords, I must apologise as a briefless barrister for intervening in this debate but I have always taken the greatest interest in legal history. The noble Earl who has just sat down has stolen most of my thunder. I was going to say exactly the same thing as to the difference between felony and misdemeanour. Before I went up for my examination in law, I asked what answer I should give if I were asked what difference there was between felony and misdemeanour. I was told: "There is no answer. Nobody 397 knows. It is history." I was told that if you a horse within fifty yards of a butcher's shop it is felony. There are many other absurd little things which are felonies whereas, as your Lordships have been told already, a great many serious crimes are misdemeanours. I am sure all lawyers feel as I feel, that the time has come when a clear line should be drawn between what is felony and what is misdemeanour.
The noble and learned Viscount did not mention that there are certain other forms of legal procedure followed not only in your Lordships' House but also in another place. There is, for instance; a Bill of Impeachment. Is that still to continue? Are, we still going to proceed by a Bill of Impeachment, or, may I say further, by an Act of Attainder? Is that still going to be on the Statute Book? If the trial of a Peer by his Peers is to be wiped out, so ought these others. Then there is another procedure, a Bill of Pains and Penalties, which can be tried in this House. Is that going to be dealt, with or not?
After all, this question of the trial of a Peer by his Peers is deeper and more important than it founds. It is not only a question of elaborate ceremony; it is more than that, it is the whole basis on which our justice is founded. A Peer—I may be wrong—does not only mean a member of your Lordships' House; it means an equal, and anybody who is tried at the Old Bailey, for instance, is in fact tried by his peers. I feel very diffident in talking about the history of law in the presence of a Lord Chancellor, but I think that Lord de Clifford's trial was only the seventh since the year 1631. Lord Audley, the Earl of Castlehaven, was then tried for what we call a serious offence. I think I am right in saying that he asked not to be tried by his Peers but to be tried at the Old Bailey, and it was then decided that the question was not one of right or privilege, but that he had in fact to be tried by his noble Peers. I think the Judges based their decision on Magna Charta, but that certainly is the date: 1631.
The noble Viscount also told us about the trials of various Peers—they are very few—who have been tried for felony in your Lordships' House since that date. He did not say the result of those trials. 398 Lord Ferrers in 1760 was hanged; he drove to the scaffold in his own coach. Lord Byron was found guilty of manslaughter and then pleaded clergy, which meant that, instead of being punished by' death, he would be branded; lie then pleaded peerage, which meant that he did not have to be branded. So he got away with it! The Duchess of Kingston, found guilty of bigamy, pleaded clergy, and she then pleaded peerage, to say that she was not to be branded, and then I think your Lordships retired into your Lordships'- House to discuss whether the Duchess should be branded or not. Although the Lord Chancellor of the period was most anxious to have her branded, their Lordships of that period decided No. As they were judges of law as well as judges of fact, they overruled the Lord Chancellor and she was not branded. Lord Cardigan got off on a point of law, the question of whether he was Henry Harvey Tucker or Harvey Tucker. As a matter of fact—though this has nothing to do with the question—he could have pleaded his clergy if he had been found guilty, because, although the Act of 1827 had been passed through Parliament, it had not mentioned the trial of a Peer by his Peers. So he could have got off on that plea, though he actually got off without it. Then we got Lord Russell only the other day. Seven trials for felony in four hundred years, since 1631; that is all.
I venture to say, my Lords, that this is a great tradition of your Lordships' House. Is it worth doing away with the whole of this state and ceremony, which all foreign nations envy? It is this very state and ceremony which keeps us what we are. It means that the roots of our civilization are deep down in the soil of stability. I may be wrong, but individually I feel that it would be a great pity if this old tradition of ours, the trial of a. Peer by his Peers, were done away with, because I am quite convinced that it is something which is part of our history.
§ LORD PONSONBY OF SHULBREDE
My Lords, nothing is more difficult than to intervene in a legal debate amongst eminent lawyers. I feel very diffident in making any intervention, and should not do so were it not that my noble friend the Leader of the Opposition, who has to be discharging his public duties elsewhere, 399 has asked me to say that the Opposition desire to support the noble Viscount who moved this Motion. After I have heard a great many legal speeches I am afraid I always come to the conclusion that it is all making rather a mountain out of a mole-hill. This is really not a very important point, but noble Lords speak with great passion about it. I was glad that the noble Lord who is just leaving the House substituted the words "great pity" for the word "disaster," because I think that "a great pity" is the fullest extent to which you can go with regard to the abolition of this anomaly. I have great archaeological sense. I quite appreciate things that go back into the past, and I am a great supporter of pageantry, which I think is necessary in the life of a nation, but honestly, my Lords, I do not think that even with our robes and cocked hats on we really make pageantry very impressive. I do not think that we are necessary for enlivening the public life by pageants of this description.
I listened to the noble Viscount who moved the Motion, and I must say I was very much impressed by his argument. I thought he covered the ground very fully, and it seemed to me that this was one of the anomalies which might be disposed of. Of course, I cannot help feeling that there are a good many other anomalies that might go too. It seems more or less a waste of time to occupy the attention of this House with one function which is very rarely used, and which may not be used again within the next generation. Those who, like the noble Earl, Lord Halsbury, feel very strongly that this ceremonial should be retained are perhaps right in their point of view, because they think that, if you begin tampering with the various functions of your Lordships' House, you are only hastening the clay when far greater changes are bound to come. But, my Lords, I think we have it well in mind. A Motion of this sort more than a year or two ago might not have commanded any attention at all, but those who were present—I was not, myself—at the trial of Lord de Clifford, and those who read about it in the Press of the day do not, I think, feel very much impressed by the rule that Peers should be tried by their Peers, or that any special justice can be done by this method. I think there is a sort of impatience in the public attention which is drawn towards it—a feeling that 400 there was a waste of time, and a waste of money and attention on something which was purely trivial and tawdry and not impressive. For that reason we on this side of the House will support the noble and learned Viscount.
My Lords, I rise to oppose both the Resolution which is before your Lordships' House and the Amendment. In spite of the many arguments that have been advanced with so much eloquence, I am not convinced that there is much virtue in any change from the law as it stands to-day in regard to the right of Peers to be tried by Peers. There are many who seem to consider that change and progress are necessarily synonomous. I disagree with that view. I venture to contend that so far from noble Lords surrendering their right to trial by their Peers, they should hold fast to that right, and do their duty by other sections of the community and insist on their regaining their similar right, won by just revolution in 1215.
The Magna Charta, Chapter 39, guaranteed, in the words of Creasy, "full protection for persons and property to every human being that breathes English air." It introduced no unknown or new principle, but was a restatement of what had been the right of every Englishman from the earliest recorded days. It enacted that:No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go upon him, nor send upon him, except by the lawful judgment of his peers and by the law of the land.The important words are "nisi per legale judicium parium suorum," and I apologise if the pronunciation is rather archaic.
I am not a lawyer, but I fancy that we were all taught in our youth that the principles implied in the words I have quoted have always formed the bedrock of English liberties and justice. There have been, I know, many departures from these principles. It may have been difficult in the past, before education became general, to empanel juries of working men to try working men. It may have taken too long to bring the meaning of complicated evidence into the understanding of illiterate men. The Jury Act entirely repealed the essential provision of Magna Charta, and so now we see that by reason of 401 property qualifications juries are composed almost entirely of grocers, haberdashers, and middle-aged spinsters, sitting in judgment on men and women whose dialect they may have difficulty in understanding, of whose standards and codes they know nothing, and of whose point of view and outlook they are supremely ignorant. There is no excuse to-day for the continuance of such a state of affairs. Working men, to-day, are perfectly fit to sit on juries, and are the natural and suitable interpreters of the morality, standards, and modes of life of their equals who may be indicted. How can we in this House take our part in instituting any reform in this matter, with any kind of sincerity, if we relinquish our own right to trial by our equals?
Another repeal was brought about by the Summary Jurisdiction Act, which entirely destroyed the guarantees con-tamed in the Great Charter. To-day, though working men are seldom eligible to sit on juries, they can and do become magistrates. This innovation may indeed have brought back in some limited degree the idea implied in the words "judicium parium suorum." But why has it been thought necessary to vitiate a sound reform by introducing Party polities in the appointment of magistrates I have never yet received a satisfactory answer to that quite simple question. I respectfully suggest that in regard to the administration of justice the time is ripe for an overhaul of our system. I believe that a return to bedrock principles, from which circumstances may in the past 'have compelled departures, would be welcomed in our country far more than any measure following a vote favourable to the terms of the Resolution now before us, even if amended by my noble friend Lord Rankeillour.
The expense of trials by Peers has been mentioned. Spread over the last three or four centuries what has been the average annual cast? A few pounds, perhaps. Why should it be anticipated that unless changes are made taxpayers or ratepayers may be likely in the future to face heavy expenditure for trials such as the one in which some of us took part recently. It is true that a revolution in transport has brought in its train new crimes, new felonies; but after all motor cars have been poisoning the atmosphere for nearly forty years, and so far there has been but 402 one trial in your Lordships' House for an alleged motoring offence; and I hope that I am guilty of no impropriety if I say that much surprise has been expressed that that case ever came into court. Why are we to suppose that there will be any increase of cases triable in this House? The noble Earl, Lord Halsbury, referred to the cost of these cases. Why should the cost of such trials be so high? One wonders whether it is really necessary to fit up the Royal Gallery to accommodate hundreds of spectators. Would the ends of justice be defeated if accommodation were provided on a more modest scale?
Let us avoid fussy and unnecessary legislation? Why should we take up the time of Parliament by bringing in a measure which may possibly affect two or three (or even fewer) noble Lords in the next century, when time might be far more usefully spent dealing with the re-towns at which I have hinted? And there are others. There still seems to be no suitable alternative punishment to imprisonment for those who are too poor to pay fines, and consequently there is still the ridiculous situation in which there is one law for the rich and another for the poor. How do we know that the abolition of trial by Peers may not be a precedent for abolishing many things that may have survived their usefulness and original purpose, but which happen to appeal to the people of this country—the pageant of Parliament, the ceremonies connected with the visits of Judges of Assize to our towns, the pomps of Lord Mayors? Our people happen to revere ancient symbols and ritual, and England will be a dull and drab country when vandals lay their hands on these things. Destruction is so easy and so attractive to some. I hope, my Lords, you will give no encouragement to those who are seeking to undermine still further the foundations upon which English justice and our liberties rest. Those foundations were laid 700 years ago, and they are in need of restoration rather than destruction.
§ EARL PEEL
My Lords, I would like in two words to support the Amendment moved by my noble friend Lord Rankeillour. The general principle which I should apply rather to cases of this kind is that where the practical advantage of doing away with ancient custom is not very great it is just as well to maintain such ancient ceremonial. The 403 noble and learned Viscount dealt very easily and happily with the question of felonies and misdemeanours, but I venture to say I was not so much impressed by his argument on the treason point as I am usually by the observations which I hear from him. He asked what advantage it was that the noble Lord, Lord de Clifford, in that recent case had to wait some three or four months for trial, and he suggested, very rightly if I may say so, the necessity of bringing very soon to trial persons concerned in these criminal cases. But what was the alternative he suggested? He said, Would not they be dealt with just as well by a Judge and jury at the Central Criminal Court or some Court of First Instance of that kind? And what was the advantage? Why, he said, you have got a Court of Criminal Appeal; the case then can go, we will say on points of law, to the Court of Criminal Appeal; and after that, it might have the great advantage of coining up to be argued here before noble Lords sitting as Judges. There is no delay about that, is there?
From the point of view of the unfortunate person charged himself, is there really a great advantage in being tried at the Central Criminal Court, the case, being appealed to the Court of Criminal Appeal, and then coming up to your Lordships' House? I should have thought, if you were going to consider the mental anxiety of the person charged and the quickness with which the trial is over, the advantage on the practical ground surely was with your Lordships' House. Is it not an immense advantage if you can have a case, criminal or civil, settled once and for all? We have an enormous number of these appeals, as all your Lordships know. But when you have a case tried by that ancient ceremonial you have the advantage of a large number of Judges, and you may be quite certain that what those Judges have decided is the best decision and the best advice that you can possibly get. And from that decision, fortunately, there is no appeal.
The other point that the noble and learned Viscount dwelt upon was the question of ceremonial. He told us that he approved of pageantry and ceremonial in connection with great processions, the Jubilee, and so on; but he said he did 404 not want to have anything of a spectacular nature connected with a criminal trial. If the noble and learned Viscount meant that, he will have very largely to remodel some of the criminal procedure in this country, because those who have had to attend cases where a man is sentenced to death are well aware of the tremendously dignified and alarming ceremonial which is followed in condemning a man to death. Nor do I at all agree that it is the same thing to have a man tried by the ordinary Court with a jury as to have a great trial in this House. After all, the public do pay great attention to these things and, from the point of view of the public, if the great cases of treason were to be tried in an ordinary way before the Central Criminal Court, with a Judge and jury, where they are placed as it were on the same level as ordinary offences, such as manslaughter, bigamy or what not, I do not believe that people would be impressed to the same extent as they are by the great ceremonial which you might have in this House.
It is a great thing that with a charge like treason—the most terrible of all charges, affecting it may be the whole safety of the State—there should be some difference in ceremonial as compared with the ordinary case that comes before a criminal Court. When the noble and learned Viscount says that he does not want anything spectacular in these cases, I beg to differ from him entirely. I think it is precisely that element of ceremonial and of great dignity which impresses upon the people the importance of a great crime such as treason and distinguishes it from minor crimes. I should therefore certainly like to support my noble friend Lord Rankeillour in drawing the distinction he does between treason and other cases of felony.
THE MARQUESS OF ABERDEEN AND TEMAIR
My Lords, I am no lawyer, nor have I attempted to inquire into the usual proceedings, but it seems to me that it would be a great mistake to do anything to reduce the traditions of this House, or indeed tradition anywhere. I think our country thrives on tradition, and, if it were not for tradition, I do not think this country would be in the position it is to-day among the nations of the world. There are one or two points I should like to put before your Lordships. We have been told in the course of 405 the debate that the number of your Lordships who sat in this House varied from twenty-nine to somewhere about fifty-two up to 1760, while to-day there are between 700 and 800 Peers entitled to sit in this House, and that there were only six trials by your Lordships' House in 175 years. One would almost have thought that with the increase in the numbers of your Lordships' House, there would have been more trials, but does it not seem to your Lordships that the mere fact that one is a member of this House improves your conduct as an example to others I say without hesitation that those who are members of this House have the very great reponsibility of offering a good example to others.
Moreover, some of us who sit here look back with pride to the traditions set by our forefathers who sat in this House, and one of the most remarkable things about this afternoon's debate is that very few of those who can look back to their forefathers sitting in this House have spoken. The desire for reform in this particular matter comes from those who have only earned their seats by their reputation and Service to the country more or less in recent years. All the more honour to them for being here. But I do hold that those who have had forebears here have also got the same responsibility to be sure that the names which have been honoured in the past shall not be besmirched in the present. I think it would be a very great mistake to think that one might be less particular simply because there are more members of your Lordships' House. As a matter of fact, events have shown that there were far more cases of this kind when there were fewer members than there are to-day. Of course, we have progressed since those times. Nevertheless, the more there are generally the more cases one would expect, but the fact is quite the contrary.
There is another point which has not been mentioned, and which I think ought to be mentioned. It seems to me that if ever there was a case in which a Peer was found guilty by his Peers, the mere fact that he was one of your Lordships' House would not mean that the sentence meted out to him would be more lenient. If anything, it would be more severe, and that is a very good thing in keeping the tradition of this House high. I have ventured to say these few words because I 406 feel there is a personal element and also a public element in this debate. I have heard nothing at all this afternoon to convince me that there should be a change. In fact, most of the argument has been against a change. In my opinion and without any disrespect to them I believe that those who have advocated change have made such a poor case that if they were to argue it in a Court of Law before a Judge they would lose it. Therefore I sincerely trust that this [louse will maintain the tradition which has served it so well through the centuries.
§ LORD ATKIN
My Lords, I would ask to be allowed to say a few words on this topic which is of great interest to me as having been a former Judge. I am specially moved to speak because of a sentence that fell from the eloquent lips of the noble and learned Viscount when he imputed to a great novelist, who is Dickens, the saying that the law is an ass. He omitted to call your Lordships' attention to the fact that that dictum was put in the mouth of Mr. Bumble, and he omitted to call your attention to the fact that the occasion on which Mr. Bumble emitted that famous saying was when he was told that the law presumed that when a woman committed a crime she acted under the coercion of her husband; and Mr. Bumble's matrimonial experience being quite the contrary, he announced that which has been quoted so often as a general reflection on the law.
The question really seems to be one rather of the equal administration of justice than of the maintenance of the dignity of privileges of this House. I think nobody can deny that the privilege which Peers enjoy, if it be a privilege, which I very much doubt, is in fact a violation of the ordinary principle that all men are deemed to be equal in the eyes of the law. I am bound to say that a great many of your Lordships must have failed to notice the criticism from the public when their attention was called to this privilege on this recent occasion. The difficulty I think is this. After all, everybody except a Peer gets a fair and equal trial before a Judge and a jury, and Peers themselves, in respect of quite serious offences, are, and must be, tried before a Judge and a jury. In these circumstances it does seem to be anomalous and contrary to ordinary 407 principle that in the case of a felony a Peer should be compelled to be tried before the House of Lords. From the judicial point of view I think the objection is that the tribunal consists of a large and fluctuating body of seven or eight hundred members. Nobody will suppose, or can suppose, that all the Peers would appear for any one trial, but nobody knows who or what Peers may appear on any particular occasion. It might be that if a trial made an appeal to any particular class of person, you would have that feeling reflected in the number of those who attended, and in the persons of those who attended, and for that reason I particularly should wish to say a word or two about the proposed Amendment.
I myself have very great sympathy with the proposal to exempt treason. I thought for a time there was a great deal in it, and I quite understand the views of those who now favour it; but, when you come to think of it, a charge of treason is hardly likely to arise except in time of war or in a time of very considerable political dispute and feeling, and these are precisely the times when, if the tribunal is one consisting of a large and fluctuating body, these feelings may be reflected amongst those who attend. You never can be sure who will attend, and you cannot be certain of getting equal justice, with great respect, as you would be if you went before a jury and a body of Judges—because I do not think for the future there will ever be a case of treason tried by one Judge alone. I think such cases are almost certain to be tried by two or more Judges with a right of appeal on points of law. It is for these reasons, and one other reason that I propose to give, that I think this House would be wise if it were to surrender this privilege, if it is a privilege, although I would prefer to say if they agreed to place themselves on the same level as other citizens in respect of justice.
I suggest that it is quite impossible to justify before the public the expense to which the public is put by the trial of a Peer for quite an ordinary offence such as the charge of manslaughter by negligence in the management of a motor car on the highway at the present time. Some of your Lordships have said there have been few cases in the last 200 or 300 years. There are now about 700 of your 408 Lordships, and a great many own and drive fast and speedy motor cars. I am far from suggesting that any of your Lordships who are present are at all likely to be involved in such a charge, but nobody can deny we might be faced with just such another charge, as in the case of Lord de Clifford, to-morrow. That is not in the least unlikely, and it would be a public scandal that whereas the offender, if he were an ordinary layman, would be tried at Assizes or at the Central Criminal Court, at small expense, he should have to be tried here at the expense we have recently been told, the inevitable expense, of five or six hundred pounds. It is impossible to suppose that the authorities responsible for such a trial as the last one would have incurred such an expense unless it was absolutely necessary, and it would be quite impossible to conduct a trial and secure the proper attendance of the public, the necessary attendance of the public, in this Chamber. For these reasons, I venture to suggest, thinking not so much of the dignity and the privileges of this House, which I am quite certain everyone would be prepared to maintain, but thinking of the administration of justice and the appearance of the administration of justice, that it is important that this Motion should be agreed to.
THE EARL OF MANSFIELD
My Lords, in as few words as possible I desire to associate myself with those of your Lordships who do not wish at the moment to see any change in our present procedure. I submit that the noble and learned Lords who have stressed their points this afternoon have not made out a very good case. I do not propose to deal with the points that they have brought up, as I think they have been very adequately dealt with by the noble Lords who have preceded me, but at the same time there is one aspect which might be considered, and that is whether there could not be some way in the future, by means of a panel chosen by the Lord High Steward, of restricting the number of Peers who attend, so as to avoid the possible very large influx into this Chamber. The unfortunate case which has produced all this bother was caused by the members of a Coroner's jury—eight, I believe, in number—returning a verdict which to most of us seemed totally at variance 409 with the evidence before them. It is surely asking rather much that our ancient privileges should be swept away merely because eight persons have not been as far-seeing in their views of evidence as they ought to have been. Investigation might be made as to whether or not slight modifications are perhaps justifiable, but I do feel that it is premature, and at this stage wholly undesirable, to rush the matter as the noble and learned Viscount would have us do. I do not presume to offer your Lordships advice, but I should be glad if you would reject the Motion, and, on the whole, though. I have considerable sympathy with it, I should be glad if you also reject the Amendment of my noble friend Lord Rankeillour.
§ THE LORD CHANCELLOR
My Lords, the debate which has been carried on and which has been listened to, I am sure, by all your Lordships with great interest, has had this peculiar merit that no member of the Government has so far taken any part in it. That is why I found it so interesting. But that has been advisedly the case, because the Government have felt, and I hope your Lordships will agree that the Government rightly feel, that the question which is raised by the Motion proposed by my noble and learned friend Lord Sankey, is peculiarly a matter for the determination of your Lordships' House in forming your own judgment as to whether or not you desire this change to take place. It is not a matter in which so far as we see it the Government ought properly to intervene or to bring any pressure on one side or the other. At the same time, besides being a member of the Government, I have the honour also to hold a high judicial office and I should desire to express, and perhaps your Lordships would expect that I should express, some personal view, and that I should try to sum up fairly some of the arguments which we have heard on either side this evening.
Against the Motion and in favour of maintaining the position as it stands to-day we have heard from several of your Lordships the view expressed that this privilege, if it be properly so described, is one which, however it originated, is undoubtedly deep rooted in our history. One at least of your Lordships said that we could not, abrogate 410 this privilege without interfering with Magna Charta. I think that all historians are agreed now that, whatever the origin of it may have been, Magna Charta is not the origin of it. Indeed, it is fairly plain that Magna Charta cannot be the foundation of this right or, privilege, because, among other reasons, it does not apply in cases of misdemeanour where you are tried by a jury of ordinary citizens in the ordinary way although you are a member of this House.
But, whatever the historical origin, I have myself thought that it may very likely have had its origin in the fact that in ancient days almost every felony was a capital offence, and that when a felony was proved to have been committed the property of the felon was forfeited normally to the Crown. Therefore, since it is said the King cannot be a judge in his own cause, it was not considered right that the King's Judges should try a question in which he had a personal interest. That is one view which is widely held and seems to have a good deal of historical foundation. But whatever the cause, whatever the origin, there is no doubt that this right has persisted through many centuries. It is said, and I think rightly said, that one of the features which distinguishes our country and our modern civilisation from that which prevails in most other parts of the world lies precisely in the fact that we have been able to maintain so many of the ancient customs which have come down to us from our forefathers and that, even if we have modified them, we have been able to change them sufficiently to fit in with modern conditions without at the same time sacrificing their essential characteristics.
Then, again, it is said that the difficulties which have been indicated are not really as serious as is sometimes supposed, that the unpopularity which it is said attaches to this peculiar right of the Peerage has not in fact turned out to be a very unpopular one or to have aroused much resentment. It has rather appealed to the public imagination and has been rather an attractive feature. And it is said that after all, whatever slight inconvenience there may be, it is more than counterbalanced by the considerations which I have indicated, and that, this kind of trial is likely, as has been proved by experience, to take place very rarely, so that it is not worth while and it is not 411 desirable to sacrifice any ancient tradition and any ancient right when so little advantage can be gained by doing so. Some people even have expressed a fear that if once we begin to give up any of our privileges that fact may arouse a demand for a further extension of that surrender, and that we may therefore imperil the very foundations of your Lordships' House. I think that it is a fair summary of the position, at any rate of the more moderate position, which is stated by those who desire to see no change.
On the other side you have a view which was, I thought, very powerfully expressed by my noble and learned friend when he brought forward the Motion. It is said, first of all, that so far as the accused Peer himself is concerned there are grave disadvantages attaching to this mode of trial. There is the delay. The noble Earl, Lord Halsbury, has said there need not have been any delay. I wonder what would have been said, probably by Lord de Clifford's advisers, certainly by a great many members of your Lordships' House, if we had insisted on this trial taking place not by the House of Lords but by the Court of the Lord High Steward in the middle of September, when a great many of your Lordships at any rate would not have found it convenient to have been summoned, when the Judges would not have wished to have been brought here, and when, I think, it might have been a very difficult thing to constitute a proper Court. Then there is the expense involved to the person accused. As has been pointed out by my noble and learned friend, in practice the cost of this trial to the acquitted Peer must have been very much higher than it would have been if the trial had taken place in the ordinary way at the Old Bailey.
Then again, there is the fact that he is put in peril on two charges of two trials for practically the same offence. Take the very instance which we have been considering. Under the existing law, if the trial had taken place before a Judge and jury, on the accusation, of manslaughter the jury could have considered, and would have been told that they could consider, whether or not a charge of dangerous driving could have been made out, and they would have been entitled to find the accused guilty of that, and an acquittal would have been an acquittal on 412 both charges. There would have been no danger of a further charge. It is important that these points should be referred to, and there are others not of historical importance but not without value.
In any trial for felony in an ordinary Court the prisoner has a peremptory right of challenge, I think to the extent of some twenty jurors. If anybody is called on the jury to whom for any reason he objects because he thinks he will not get a fair trial, he has an absolute right to object to that person forming a member of the jury. On the part of the Crown, there is also the right of challenge to people who it is thought will not be impartial. Fortunately in these days there is such confidence in juries that the right is rarely exercised, but it is there. When a Peer is tried before your Lordships' House he has no such right of challenge. I am not suggesting that your Lordships are more likely to be biased in one way or another than an ordinary jury, but I am suggesting that even your Lordships are not exempt from that possibility of prejudice which is recognised by the law to prevail among less noble members of the community and from which an accused person is protected by the law unless he happens to be a Peer. There is another disadvantage, which in one case at least I think proved of very serious importance when there was doubt as to whether a man was or was not a Peer. I think there is at least one case on the books where your Lordships' House refused to try a man because they said he was not a Peer, and the King's Bench refused to try him because they said he was a Peer. Therefore he remained untried and unable to clear himself. That is not often likely to happen, but it is a position from which I think most of us would wish to be delivered.
On the other hand it is said from the public point of view that there has been a considerable expenditure of public money. I do not put that very high because, if any serious advantage is to be gained, it is worth while spending £700 or £800, although I must demur to the suggestion put forward by the noble Earl, Lord Halsbury, that money was wasted and that it was not necessary to carry out the proceedings last autumn in the way in which they were carried out. For myself, I think the very greatest credit is reflected upon the learned 413 Clerk of the Parliaments for the very great skill with which he managed to combine the ancient pageantry and ritual with modern business efficiency, and that the trial could not have been better done than actually was the case. Then, again from the public point of view, there is an enormous expenditure of judicial time. It is not a question of one or two Judges, but once the trial comes on, not only can there be no judicial sittings in this House, and equally none in either Division of the Privy Council, but there cannot be any sittings in the Court of Appeal, there cannot be any sittings in the Courts of any of those Judges who are either summoned to advise us or are members of your Lordships' House. I think there were seven of them here at the trial last autumn. It happened in that particular case that it was for one day that justice was so largely paralysed, but it might have been for weeks had the trial taken a longer time.
I do not attach too much weight to it, but I think one ought to remember the fact not only by their right but by their duty members of this House are bound in any such criminal trial to determine finally for all time what is the law on what may be a most difficult and intricate question of Criminal Law. We are judges of law as well as of fact, and we have to exercise our own judgment although no doubt we are influenced, and rightly influenced, by the arguments put forward by the legal members of your Lordships' House and the advice of the Judges. The responsibility is ours, and it may easily be that a decision may be arrived at with the best of good will which would not commend itself to lawyers and might cause very great inconvenience later on.
Further, there is the purely arbitrary nature of the distinction between felonies and misdemeanours which it is difficult to justify. If a Peer is charged with bigamy he will be tried in this House, but if he is charged with perjury he will be tried at the Old Bailey. If charged with child stealing he must be tried here, but if charged with abduction he must be tried at the Old Bailey. If charged with embezzlement he will be tried in one place and if charged with fraudulent conversion of money entrusted to his care he will be tried by a totally different method. There is no logical distinction 414 between the two, and since it is no longer true that felonies are capital offences—at any rate with one or two fortunately unusual exceptions—it is not true that the old historical grounds any longer exist.
Then there comes the point to which my noble and learned friend Lord Atkin drew attention which seems to me very important. One or two of your Lordships have said that no objection was raised by the public and that the public really rather liked the experience of the trial last autumn. I myself can assure your Lordships that I have had quite a number of letters—largely anonymous, it is true, but still letters which indicate public opinion—in which both I and the unfortunate Peer who was on trial were violently abused for having insisted on this privilege, as the writers ignorantly thought it, for having wasted public time and money, for having prevented the prisoner standing trial before an unprejudiced tribunal and for his having come before your Lordships' House. How ridiculous and unjustified those accusations are I need not say, but your Lordships will appreciate that the outside public are able to say that if a man who is not a Peer is accused of crime he has to stand trial before a Judge and jury chosen from the whole kingdom, whereas if a man is a Peer he does not go before a Judge and jury and only goes to his own class in order to get from them the acquittal which he evidently expects.
That is what is said about trials in this House by ignorant people, and I think myself that it is unfortunate that we should maintain a distinction between the trial which takes place of a man who is not a Peer when he is accused of wrongdoing and the trial when the same accusation is made against someone who is a Peer, merely because he happens to be the holder of an hereditary dignity. There might be cases even where two persons were both accused together of committing a felony, one a Peer and one a commoner. As things are at present, the one would be tried by a Judge and jury at the Old Bailey and the other would have to go through a wholly different ceremonial before a wholly different kind of tribunal as the result of this so-called privilege. I speak for myself only, but I cannot think that these objections are trivial or that it is in the interests of your Lordships' House 415 that we should maintain a distinction so hard to justify on any ground of justice or practical convenience.
I come now to the Amendment of my noble friend Lord Rankeillour. I appreciate at once what he said, that treason is a graver offence than probably any other which can be brought against any subject of His Majesty, and that it is desirable that there should be a more elaborate ritual, a more careful ceremonial in such cases to mark the distinction between that and ordinary crime. In the first place, almost every treason charge nowadays is brought as a charge of treason felony, which, as in the case of a felony, would be tried at the Old Bailey. The distinction in practice would be very difficult to maintain. Secondly, granted, if you will, that, treason being such a grave form of crime, it ought to have some special form o solemnity attaching to its trial, that would be a good reason for saying that, when any one is tried for treason, he should be tried in a particular way. But it is difficult to establish that as a ground for saying that when an ordinary man is tried for treason, he shall be tried in just the same way as if he were charged with a felony, but when a Peer is charged with treason, then he shall be withdrawn from the jurisdiction of the ordinary law. I fear very much whether if, as a result of this discussion, a Bill were introduced and passed by your Lordships' House containing such a limitation, that limitation would survive the criticism which would undoubtedly be levelled at it in another place; and I doubt whether its existence, if the Bill went elsewhere, might not give rise to an attack on the general position of your Lordships' House and the privileges of Peers generally, which all of us would deprecate and regard as very unfortunate.
It is for that reason that I do not myself feel disposed to support the Amendment. I am glad to notice that my own personal opinion agrees with the opinion, I think, of every practising lawyer who has taken part in the discussion: my noble and learned predecessor, the Lord Chief Justice and Lord Atkin; and Lord Darling has intimated to me that he takes a similar view. That is the view which commends itself to me personally, but when I have said that I desire at once to repeat that I am only 416 expressing a personal opinion. I feel very strongly, however, that this is entirely a matter for your Lordships' own judgment and the free opinion of your Lordships' House. The Government so strongly take that view that, knowing as we do what differences of opinion prevail in the House, and knowing that such differences very probably extend even to members of the Government, we have thought it right to pass a self-denying ordinance with regard to this Motion and to decide that members of the Government will not personally take part in the Division which I gather will shortly take place.
§ LORD RANKEILLOUR
My Lords, I understand that the first Division, if my Amendment is pressed, will take place on my Amendment. I confess that I am not altogether convinced by the arguments of the noble and learned Lord Chancellor, but I feel that this Amendment perhaps introduces some complication into the question and that it would perhaps be better on this occasion to have a clear intimation from your Lordships whether you wish to have a change or not. At the same time, if a Bill should be brought in I should certainly be prepared to move in Committee in the same sense as that in which I have now spoken.
May I just say two words on the merits? I think the Lord Chancellor will have forgotten the case of Rex versus Casement. Casement was not indicted for treason felony, otherwise he could not have been executed as he was. The Lord Chancellor said that there are very few cases of treason tried before a common jury. Yes, but a man has no right to a special trial. Casement had one, but I am not sure about Lynch. I think the case of Lynch was not tried at bar, I rather think it was before a single Judge and a common jury. Anyhow, there is no right to be tried at bar. That procedure affords an additional protection, but it depends entirely on the initiative of the Attorney-General and cannot be claimed as of right. However, I do not wish to argue the merits any further, and, since to persist in this Amendment might create a false issue, I ask leave to withdraw it.
§ Amendment, by leave, withdrawn.417
§ On Question, Whether the Motion shall be agreed to?—
§ Resolved in the Affirmative, and Motion agreed to accordingly.