THE TRIAL OF PEERS.*

IT may reasonably be doubted whether a Senator in the reign of Domitian, or an English noble under the Plantagenets and Tudors, held his life by the more precarious tenure. Tacitus has painted in colours that can never fade the agonised existence of the Roman aristocracy during that terrible first century of the Christian era. For more than five hundred years after the Norman Conquest the Crown and the Baronage, when not engaged in the death-grapple, lived in a state of armed truce. Now and again the Kings went under, were imprisoned, or deposed, or forced to make terms, or slain in open field or secret dungeon ; but on the whole the subject had steadily the worst of it. By the reign of Henry IL the great Norman houses founded in England by William the Bastard were all but extinct. After Bosworth there were very few Peers who could trace their succession further than Edward III. The seventh and eighth Henrys had a remark- ably quick way with old families that were inclined to he troublesome. And the expiring effort of feudalism was the rising of the North in 1568, which broke for ever the Nevillee and the Peroys, and incidentally brought the Duke of Norfolk to the block.

It was not to be expected that the combatants in such a warfare would pay close attention to the rules of the game or the technicalities of the law. The fate of Edward II. and Richard II., of Henry VI. and of Richard III., was ever before the eyes of their successors. The vanquished and the " suspect " members of the nobility had little hope of quarter, and it was as important to nip a conspiracy in the bud, and remove in good time a possible focus of revolt, as to exact

vengeance for rebellion in the field. Yet respect for legality was engrained both in the feudal systerri and in the English character ; and apart from those who fell in fair fight, or as the victims of a lawless mob, few of the nobles will be found to have met their death without at least some parody of the forms of justice.

It is with the most simple and most efficacious of all the weapons in the Royal arsenal that the book before us is concerned. Mr. Vernon Harcourt has displayed an industry and an ingenuity in calling upon his Grace the Steward to render an account of his stewardship which are remark- able even among the school of investigators who follow the methods of the ever-to-be-regretted F. W. Maitland. He is steeped in the political and personal history of his period, he possesses a sense of humour, and that gift of imagination without which the past is a sealed book alike to those who write and those who read. We are paying a high, but not an excessive, compliment when we say that no better piece of work of its class has been accomplished since Bishop Stubbs penned the last of his prefaces in the "Rolls Series."

Thirty years ago Mr. L. 0. Pike asserted that the origin of the Court of the High Steward, with its limited number of "Triers," was lost in the mists of antiquity. These mists Mr. Harcourt has to a great extent succeeded in dissipating, and he remarks, very justly, that considering the amount of research that has been devoted to the origin of trial by jury, it is strange that its complementary institution—trial by Peers —should never have been seriously investigated:- " The privilege of trial by peers of the realm affords a remark- able study in sociology : it is full of surprises, and the critical point in its evolution contains a mystery which would perhaps be considered as romantic as any historical problem but for the fact that the central figure is only a man and not a foolish, beautiful woman like Mary Queen of Scots. I claim to have solved the mystery. It is my contention that a break occurred in the uniform development of the system in question, and that the modern practice is largely founded upon a gross fraud, une impudente supercherie, committed apparently by or on behalf of Henry the Seventh."

Though Peers, happily, are not addicted nowadays to treason or felony, the machinery for correcting their excesses in such direction still exists, and once in the present and once in the late reign has been called into operation. In February, 1841, Lord Cardigan, of Balaclava fame, was tried before the Peers in Parliament for shooting at Harvey Garnett Phipps Tucker with intent to kill and murder,— A:rig/ice, for fighting a duel; and he only owed his acquittal • His Grace the Steward and Dial of Peers, a Novel Inquiry into a Special Branch of Constitutional Government, Pounded Entirety upon Original Sources of Information, and Extensively upon Hitherto tfnprinted Materials. By L. W. Vernon Hare ourt. London : Longnoans and Co. [165. net.]

to the gross negligence of the prosecution, who came un- provided with proof that the wounded Captain bore the names of Garnett Phipps as well as Harvey. In July, 1901, a young nobleman was convicted of bigamy by the same tribunal, and got a sentence which was probably in excess of what he would have received had he held up his band in the dock of the Old Bailey.

But though it was the High Steward—in one case Lord Denman, in the other Lord Halsbury—who presided at both these trials, they were held in full Parliament, and not in his own Court properly so-called, which can only be con- stituted when Parliament is not sitting. And though under modern conditions the point has become one of antiquarian interest, the lawyers still define the variances in the position of the Steward according to the tribunal in which he exercises

his jurisdiction. In a trial in Parliament he is only primus inter pares, and on points of law be states his view as an individual member of the Court; the Peers present—and every

temporal Peer has the right to be present during the whole trial—vote upon every question of law or fact, and the majority carry the day. " But," to quote Sir Michael Foster, " in the

Court of High Steward, ho alone is judge in all points of law and practice ; the peer's triers are merely judges of fact and are summoned by virtue of a precept from the High Steward to appear before him on the day appointed by him for the trial ut rei veritas 'radius sciri poterit."

The fang which made the Steward's Court so formidable an instrument of oppression was drawn by the Treasons Act of William III., which gave the Peerage as a body the right of taking part in the proceedings of the Steward's Court whether summoned or not. Before that most beneficent enactment the Steward might summon what Peers he chose and as many as he chose. He was nominated for each emergency, and was set to do his master's bidding. No challenge was allowed to the prisoner; a simple majority, provided that it consisted of twelve of the Triers, was sufficient to convict. When one remembers the infrequency with which Parliament met before the Revolution, and the consequent inability of the Peers to assert their claim to be tried in the full House of Lords, it is easy to realise the parlous state of a member of that Order who had reason to dread the Royal vengeance, which, as late as 1686, was invoked against Lord Delamere in the Court of the Steward. His acquittal on the charge of complicity in Monmouth's rebellion was a sign that the days were over when English nobles could be found to connive at judicial murder.

Mr. Harcourt regards the Court under the Tudors and Stuarts as "a fraudulent device for the degradation of the nobility," which robbed them of what scanty chance of escape they would have possessed in a genuine trial by their Peers instead of by a packed Committee. How this privilege of packing was obtained, and how it became so firmly established that only a statute could abolish it, is the plum in Mr. Hal.court's pudding.

The early chapters of the book are devoted to tracing the origin of the Stewardship in France during the latter half of the eleventh century, and its transference and gradual development in England under the Normans and Angevins. After it had become an hereditary office there were more than one of the great houses which claimed it, until in the reign of Henry III. Simon de Montfort made good his title to it as an appanage of the earldom of Leicester.

After his death at Evesham it remained, until its disappear- ance as an hereditary office, in the hands of some near relative of the reigning Monarch, and became inseparably associated with the house of Lancaster. The line of Lan- castrian Stewards extends from Edmund Crookback, the younger brother of Edward I., to that Thomas Plantagenet who was the second son of Henry IV., and perished in the fatal battle of Beauge. After his death the Stewardship of England was never again regranted except for par- ticular occasions. During the long years of havoc which marked the reign of the three Henrys, and indeed during the latter part of the reign of Richard IL, the Royal prerogative was chiefly defended in the Court of the Constable

and the Marshal, the so-called Court of 'Chivalry, which followed the practice of the civil law, and by the middle of the fifteenth century had " become the recognised tribunal for procuring the judicial assassination of peers of the realm." As the strife between the houses of York and Lancaster grew more acute and embittered "all judicial process in parliament, whether by impeachment or indictment, fell into abeyance, and was in form at all events if not in substance completely superseded by bill of attainder : in other words the legislative power inherent in parliament was resorted to in preference to the judicial power." The wholesale destruction of documents,

which was part of the policy of Henry VII., has thrown deep obscurity over the Yorkist reigns, and to this day it is matter of uncertainty on what grounds and in what manner "false, fleeting, perjured Clarence" was attainted. John, Earl of Oxford, was condemned by Tiptoft, the Constable and " butcher of England," in 1462. The same tribunal, presided over by Richard, Duke of Gloucester, passed sentence on the Lancastrian nobles who were taken at Tewkesbury. After Bosworth the chief Yorkist prisoners were executed without any form of law.

An accident led to the institution of what Mr. Harcourt declares to be a new tribunal founded on "quite the most interesting fraud in the whole legal history of England" :—

"In 1499 it was deemed advisable to have the Earl of Warwick tried and executed. Having been for some time a close prisoner in the Tower of London, he could not decently be accused of any act of war, nor was there any other pretext on which the con- stable's jurisdiction could be safely founded. Warwick was not tried in the constable's court, but before a very different tribunal, namely a Court now known as the Court of the Lord High Steward of England."

Some such tribunal had indeed become necessary if the King were to retain power of life and death over the Peerage. The Court of Chivalry was applicable only in times of civil war, and the last hopes of the White Rose,had been quenched in blood at Stoke. To have recourse to proceedings in Parlia- ment did not fit in with Tudor principles of government. But some precedent for the Steward's jurisdiction was required to justify the condemnation of the unhappy Earl of Warwick, some instance of its exercise properly vouched by a Court of Record ; and the instance was forthcoming. An entry was produced from the Year-books for the first year of King Henry IV. describing the trial of John Holland, Earl of Huntingdon, in the Court of the Steward before Edward, Earl of Devon, commissioned pro had vice " because the office of Steward of England was then void." Huntingdon was accused of high treason in conspiring with others to assassinate the King at Windsor on the night of the Epiphany, having obtained access to his presence under pretext of "a mummery." He is declared to have confessed, to have been sentenced to a traitor's death, and to have been duly executed. The Report sets out with much particularity the procedure that was followed, and the course that would have been pursued had the Earl pleaded not guilty. " If the greater number of the Lords present should say guilty, then the judgment shall be given as above."

Mr. Harcourt boldly asserts that the Earl of Huntingdon was never tried as alleged, or at all, but was beheaded by mob-law outside the walls of the castle of Pleshey, in Essex, for his share in the abortive Windsor rebellion. The evidence, indeed, on the latter point seems so conclusive that Bishop Stubbs in his history gave the Pleshey execution as an undis- puted fact. So far as the report of the Year-book can be tested by the indictment as quoted in the Escheator's accounts, it is erroneous in an important detail,—the date of the plot. And the assertion that the Stewardship was vacant in January, 1400, is quite untrue. Moreover, the authenticity of the Report was gravely questioned at the Conference between the two Houses over the Treason Bill of William III. There is no manuscript copy of it in existence, and it is not inserted in Fitz- herbert's " Grand Abridgment," published in 1514," a circum- stance which fairly warrants the conclusion that this industrious legist either did not know of its existence, or did not believe it to be genuine." The first printed Year-book containing it was published in 1553, and Mr. Harcourt is convinced that the entry is a fraudulent invention. We doubt whether the mystery will be further solved; but four years after the execution of Warwick the Court of the Steward was again called into being for the benefit of Edward Sutton, Lord Dudley, and in 1521 came the leading case of the Duke of Buckingham, since which date the Court has enjoyed its existence unchallenged. The forged precedent bad done its work, and we are tempted to wonder whether it stands alone among falsification of legal records. The incident is not without its bearing on the contention of Sir Clements Mark- ham that we can accept as unquestioned fact very little of the early Tudor version of history.