The topic of lawyers in the Regency Era often raises lot of confusion along with the privileges of peers in the British Legal system. It wasn’t until quite recently that the historical differences between what type of lawyer you were dictated where you could practice, what types of cases you could take and even if you could be hired directly by clients in Britain and the nobility has a long history of believing themselves above the law.
Common Law vs Civil Law
Civil law is a direct descendant of Roman Law where laws are codified and collected and brought into existence by a legislative body. The English Law or Common Law is also known as judge-made and is heavily based on legal precedent and depends on the judges in the courts using common sense when considering the facts before them. This lead to a very stratified judicial system where judges were often biased so it became a game for lawyers in the Regency Era to gain access to the courts by virtue of their rank in society and who they knew.
Barristers vs Solicitors
Traveling judges of the higher courts made circuitous journeys trying cases, which brought us the term Circuit Court. Thus, certain lawyers in the Regency Era who were more familiar with those judges, had access to a wider pool of case decisions and material and therefore more likely to be “called to the bar” (a physical barrier that separated the public from those practicing law and making judgements) became known as barristers.
Traditionally these lawyers were engaged by other lawyers to present their cases to the judges as they came around on their circuits. The barristers were prevented from directly “taking orders” or being hired by the public. The go-betweens were known as solicitors and were responsible for all the public facing details required in a case and other more mundane matters that were seen as beneath the notice of the barristers.
So, if one were in need of contracts being drawn up, one would hire a solicitor. If you were accused of a crime, you would also hire a solicitor who would then hire a barrister to represent your case before the judge.
Privilege of Peerage
Another legal wrinkle during the Regency is that peers of the realm enjoyed the privilege of being free from arrest in matters of civil law. This was most often seen in the case of avoiding debtor’s prison until 1870 when imprisonment for debt and the related privilege were abolished.
Between 1547 and 1841, peers and peeresses convicted of a crime other than murder or treason could plead “privilege of peerage” upon first offense. Before it’s abolishment in 1841, this privilege was only invoked five times. The last time was by James Brudenell, 7th Earl of Cardigan who planned to claim the privilege if convicted of duelling. However, he was acquitted before the Bill was introduced.
Peers of the realm used to be tried by other peers in the House of Lords. Since 1948, peers are tried by juries made up of commoners and as of 1999, peers are no longer exempt from jury duty. However, peers can be subject to impeachment, a procedure separate from trials in the House of Lords which included charges for felonies and treason, although that is the court for both. Impeachment charges could include felonies, treason and misdemeanors. The last case of impeachment brought before the House of Lords was against Henry Dundas, 1st Viscount Melville, in 1806 for misappropriating public money of which he was acquitted.
More information regarding a variety of other Regency-themed topics can be found on my Regency Resource page. If you’d like more information on a specific place or topic, please let me know in the comments section below.