Taken literally, this phrase would mean back in feudal times that a knight or noble could not be declared guilty of a felony except by jurors who were also noble. My first question is, why did this become a right? Did anyone ever actually convict a noble in a sham trial with a riffraff jury of peasants and serfs? My second question is what relevence or legal meaning does the phrase retain today? Was it ever used for example to invalidate trying minorites by an all-white jury? Under what circumstances could someone claim that a prospective juror was not their “peer”?
Peers were tried in The House of Lords. If found guilty of a capital offence they were hanged with a silken rope.
I’m sure this will engender a lot of talk, so I’ll just start with a few basics.
In British common law, mostly taken over by the U.S., trial by one peers applies to both nobles and commoners. It was a right granted by the Magna Carta in 1215 in England. It was introduced to prevent the king from exercising absolute and arbitrary judgments. Knights would judge knights and commoners would judge commoners but at least they would have the right of a trial. The concept pre-existed the Magna Carta but that’s mostly irrelevant for our purposes.
Note that the phrase appears nowhere in the U.S. Constitution. There is of course no need to, as no nobility has ever existed. What the Constitution guarantees is the right to a trial by an “impartial” jury. (Amendment VI)
And yes, the composition of a jury is frequently challenged. The law merely states that certain classes may not be arbitrarily excluded, but does not specify what the makeup of a jury must be.
It’s not all that important today, because it’s not in the constitution: http://www.usconstitution.net/constnot.html#jury
What’s left of the jury of peers notion, which comes from the Magna Carta, is found in cases holding that:
- It violates the defendant’s equal protection rights to exclude jurors based on discriminatory criteria.
- It also violates the rights of potential jurors.
Dangit, so if I’m ever arrested, that means I can’t demand that my jury consist entirely of physicists who review papers submitted to major journals?
There goes that plan.
Question:
I thought “peers” was another word for “noble” (as in “peer of the realm”) and the nobles were generally beheaded while commoners were the ones who were hanged. Did the custom of the silken rope come into effect after beheading was abandoned as a means of execution?
Two distinct usages, Lissa:
(1) “peer” meaning equal. Chronos’s papers, though not his (one hopes hypothetical) criminal acts, are subject to peer review, meaning those with expertise in his branch of physics. In that sense, you and I are not his peers, not being familiar enough with the abstruse concepts he tosses around. In the legal sense, we are his peers, equal before the law with him, and capable of sitting on a jury to try him.
(2) “Peer” meaning noble, which is, as you note, short for “peer of the realm.” The meaning here is that only they are (a) the equals of each other, and (b) fit to advise the king and sit in judgment over matters touching the heart of the realm. Trying a prince for treason, for example, is the prerogative of the Law Lords, the noblemen who specialize in reading the law and constitute the highest court in England. ("… in the U.K.?" I’m not sure how the judicial function of the Lords interfaces with Scots and Irish law. Advice, please!)
“Peer” meaning nobleman is a specialized use of “peer” meaning equal, owing to the above. But “peerage” always means “the nobility taken as a group.”
As far as I can tell, peers were indeed entitled to be hanged with a silken instead of a hemp rope, but that privilege applied only to hereditary peers. This law goes back at least to the 19th century but I can’t find when it was started.
However, Wiki says that “The last peer to be executed was Simon Fraser, 11th Lord Lovat, who was beheaded for high treason in 1747.”
So apparently while peers since then were entitled to be hanged with a silken rope, none of them actually did so.
The House of Lords is the highest court of appeal for the whole of the United Kingdom in civil cases, but only England, Wales & Northern Ireland for criminal cases. The highest court of appeal for criminal cases in Scotland is the High Court of Justiciary.
Lawrence Shirley, the 4th Earl Ferrers, was hanged in 1760 for murder after having been tried in the House of Lords.
“The thought of public hanging at Tyburn appalled Ferrers - it was the death of a common criminal and he petitioned the king to be allowed to be beheaded instead - the death of a nobleman. Beheading was not a legally available punishment for murder, only for treason committed by a peer. Thus the sentence had to stand and he remained in the Round Tower awaiting the trip to Tyburn.”
That he was hanged with a rope of silk is a myth, according to the same link. I’m not sure if a silk rope was ever used, or where in fact the rule, if rule it was, originated. Anybody know?
An entertaining snippet from an exchange in the present House of Lords on the topic:
"Lord Henley: It applied to Peers of first creation. I appreciate that there were not life Peers at the time but Peers of first creation–that is, those created rather than those who received the honour by means of birth–could also require silk.
Lord Acton: Will my noble friend clarify whether Law Lords could be hanged by a silken cord?
Lord Williams of Mostyn: Certainly not, by necessary definition. It is well known, as all Members of the Committee are aware, that no noble and learned Law Lord could ever fall into error on any possible occasion. Therefore the opportunity of execution with a silken or hemp rope would never arise."
This is an urban legend with no factual basis.
At one time nobles were entitled to beheading, while hanging was used for commoners. This is the only way that they ever got special treatment in death sentences.