The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-07-06
Aristocratfc English Defendant VIII
BE Arraigned I'm the House Of
Lords on July is.
SOME EMBARRASSING ISSUES
TECHNICAL QUESTIONS RAISED BY
THE PROPOSED PROSECUTION.
Interesting Incidental AIIusion to
Hereditary Privilege and In
ternationaI Divorce.

Oos - ~ lOtQ
Lord Halsbury, to-day Informed Earl Rus
sell that he will be tried July is. before the
House Of Lords, on the charge of bigamy.
The defendant considered that the post
ponemen OF the trial granted yesterday az
a special session of the House OF Lords TO
Aug. 6 was insufficient 10 enable his law
yers TO prepare his defense. and he. there
fore. elected to be tried on the original
date. July is.
A recent London letter in the New York
Tribune. written before a date was set for
Earl Russelrs trial in the House OF
Lords, says the arrest Of the earl has
raised technical and embarras sing ques-
tions of hereditary privilege. An in
dictment for bigamy has brought UP the
old principle that every one accused OF a
crime is entitled 10 trial by a jury of his
equals. The peers of a peer are peers. and
necessarily Earl Russell's Judges and jury
must be found In the House OF Lords. Earl
Russell is an advanced Radical. but. a. the
grandson OF an earl and a prime minister,
he is entitled to claim hereditary privilege,
and possibly he may be forced 10 have re-
course 10 an antiquated tribunal. He could
not have been arrested on a civil charge.
for although he never attends the sessions
OF the House OF Lords. the theory Of Eng
fish law an6 practice is that the public has
a presumptive right 10 his legislative serv-
ices in that body. and cannot be deprived OF
them. The principle applies TO members OF
both houses of Parliament. but 1t has even
superior validity for the House OF Lords.
because the hereditary body is one which
always exists and can never be dissolved,
and consequently the person OF every. mem
Der OF il is inviolable. A peer can De ar
rested for treason or felony-and bigamy rs
a felony: but ancient privilege requires a
trial in the final resort by the House OF
Lords.
FUNCTIONS OF HOUSE OF LORDS.
The House of Lords has virtually two
functions. tt is a coordinate branch OF
the legislature and it is a supreme court
Of appeal. with a speciel jurisdiction de-
fined and regulated by law. The peers AZ
hereditary legislators also have certain
theoretical privileges which have fallen
more or less into desuetude. For example.
a peer has by tradition the right of access
TO the throne. the right OF voting by proxy
and the right of protest. Earl Russell as
hereditary counselor TO the crown has the
technical privilege OF approaching the
throne and OF rendering advice 10 the SOW
ereign in opposition TO the opinions OF re-
sponsible ministers. Probably no peer of
the realm has exercised that right since
the Queens death. but IL has never been
dDrOEdteQ Dy leblStdtlOn. dlAnouEn NOulI
etiquette and the ~sentries in their boxes
in front of Marlborough House are ade-
quate safeguards against the intrusion. OF
unbidden counselors- Earl Russell when
he went TO Nevada to be divorced and mar
ried had the technical right 10 leave be-
hind him a proxy who could vote Tor MIN
which was formerly Fexercised by peers
through brother peers when they were
discharging public functions abroad was
Earl Russell also had the right 10 protest
TO the sovereign against the policies
adopted by the prime mini s5d ana sn s she
vanced Radical he would not have been at
a loss for subject OF complaint and griev-
that of voting by proxy and that of pro-
portance. The right Of trial by a jury OF
EQUALS, tina is. by the House OF Lords, WAS
raised by Earl Russell's solicitor at the
first hearing in Bow street II this bigamy
case be taken. up by the House OF Lords
ton 1t may lead to the. abrogation OF this
relic OF hereditary privilege.
THE LAST TRIAL.
The last time this question was raised was
forty o. fifty years ago. when Lord Cardi-
gan was charged with fighting a duel ana
shooting Captain Tuckett. AT the opening
OF the Victorian reign dueling was a COM
mon custom in England. 1t was an ordl-
nary incident of contested elections, po-
litical debates, quarrels over the gaming
table and wrangies among officers I'm the
army. The prince consort took an active
interest In the abolition Of dueling in the
army, and laws were enacted making IL a
punishable offense. AS soon as IL became
a felony dueling was relegated 10 fiction
and the thester. Lord Cardigan was one
of the last offenders, and when he shot
Captain TuckeI be was held responsible
for violation or the law. AS a peer he
claimed the privilege OF being tried by his
- A.
on a technical issue of minor Importance.
This acquittal was regarded as a miscar-
riage of law and created prejudice against
the revival Of hereditary privilege. There
was a preliminary examination before a
magistrate I'm that instance. followed by an
Indictment by grand jury, and the trial
came on in the House OF Lords. forty or
fifty peers being present X precedent be
followed in Earl Russeil's case, there will
be a writ OF certlorari after committai and
indictment. and he will be tried before the
House OF Lords as a whole for felony.
The trial OF Earl Russell for bigamy may
be conducted differently. Not more than a
dozen peers ordinarily take part I'm leg.sla-
tive work. and they may decline 10 go 10
for the purpose OF herring
evidence and passing judgment upon Earl
Russslls adventures I'm Nevada IN quest
OF easy divorce and even easier marriage.
The Appellate jurisdiction act % 1876 en-
tirely remodeled the House Of Lords as A
final court OF appeal. This was done after
much controversy. and there have been
AZ ~ ~ ALN~
vides that three peers specially selected on
the ground OF legal capacity shall be pres
ent at the trial OF appeals. These three
peers are chosen out OF a list including the
lord chancellor. peers who have held high
judicial Office and four lords Of appeal in
ordinary This appellate court. with bar
ons and peers created only for life. has alb
sorbed completely the supreme judicial
functions formerly exercised by the Houss
Of Lords. This has been done since Lord
Cardigan was tried for dueling. The pro-
cedure. II Earl Russell be tried BY his pee~s
for bigainy. Is uncertain. but obviously this
established appellate tribunal would not
take charge OF the case. since IL renders de-
cisions only on appeal from other courts.
Evidently these points have been carefully
considered. for the prosecuting authorities
have not acted hastily. but have allowed
Earl Russell 10 remain unmolested In Eng
land for thirteen months since HIS divorce
and marrige in Nevada They cannot have
overlooked the necessity either for the re-
vival Of a cumbrous tribunal or the sub
stitution Of a committee OF the lords for IL.
" Is a trial before the lords az Judges and
fury 10 which Earl Russell Is entitled. and
not an appeal TO the law lords In the first
instance.
HOUSE OF LORDS AN ANOMALY.
The House OF Lords Is an anomaly in the
modern world. Nearly every great nation
has found IL either necessary or convenient
10 have two legislative chambers: but Eng
land Is the only one which makes birth the
chief. II not the only. qualification for
membership in the upper house. other