New-York tribune., 1901-07-03
EARL RUSSELL'S TRIAL.
,Y NOTES ON HEREDITARY PRIV
IEGE AND INTERNATIONAL
DIVORCE.
London. June "a.

before Sir Franklin Lushngton may be con-
ssed at Bow Street and the charge dismissed
- this letter can be printed but it is hardly
,shIe that the prosecuting authorities after
rs,ne solicitor to America to work up the
-. ran fail TO produce prima facie evidence
80, will Justify remand of the titled offender
r,ait action Of the grand jury An indict-
Mt -o- what is a felony, If one be found, will
,o IN the old principle that every one accused
crime is entitled to trial by jury of his
ors The peers of a peer are peers and neces-
a,v Earl RusseIrs judges and jury must be
,.r,d in the House of Lords. Earl Russell is
- Advanced Radical but. the grandson Of
a, earl and Prime Minister. he is entitled to
,oiro hereditary privilege. and possibly he may
:. forced TO have recourse to an antiquated
,-bunal He could not have been arrested
vil charge for although he never attends the
sessions of the House of Lords. the theory of
FneIish law and practice is that the public has
nresrrnptve right 10 his Legislative services in
chat ro6v and cannot be deprived of them. The
rrincipIe applies to members of both houses OF
parliament. but It has even superior validity for
she House of Lords, because the hereditary body
&c one which always exists and can never be
dissolved and consequently the person of every
member Of il is inviolable. a peer be ar
rested for treason or felony-and bigamy is
felony: out dUCieut privilege requires d hildi III
the final resort by the House OF Lords.
THE FUNCTIONS OF THE HOUSE OF LORDS
The House of Lords has virtually two func-
tnns II is a coordinate branch of the legis-
lature and It is a supreme court of appeal. with
q special Jurisdiction defined and regulated by
law. The peers as hereditary legislators also
have certain theoretical privileges which have
fallen more or less into desuetude. For example.
a neer has by tradition the right of access TO the
throne the right of voting by proxy and the
right Of protest. Earl Russell hereditary
counsellor 10 the Crown has the technical privi-
lege Of approaching the throne and OF rendering
advice 10 the sovereign In opposition to the opn-
ions Of responsible ministers. Proba bly, peer
of the realm has exercised that right since the
Queens death, but ii has never been abrogated
by legislation, although court etiquette and the
sentries in their boxes in front Of Marlborough
House are adequate safeguards against the in
truson of unbidden cOunselors. Earl Russell,
Whan he went to Nevada to be divorced and
married had the technical right to leave behind
him a proxy who could vote for him in the
House Of Lords: but this privilege. which was
formerly exercised by peers through brother
peers. when they dischargng public
functions abroad was virtually surrendered
long time ago Earl Russell also had the right
to protest TO the sovereign against the policies
adopted by the Prime Minister and the House
9f Lords collectively; and as an Advanced Radi-
raj he would not have been at loss for sub
Iect Of complaint and grievance. The right of
access TO the throne. that of voting by proxy
and that of protest are no longer of any prac-
tical Importance. The right OF trial by jury
Of equals, that is, by the House of Lords. was
raised by Earl Russelrs solicitor at the first
hearing in Bow Street If this bgamy case be
taken up by the House of Lords after a pro-
onged suspension of the function, IT may lead
10 the abrogaton of this relic OF hereditary privi
ege.
THE LAST TRIAL
The last time this question was raised was
forty or fifty years ago, when Lord Cardigan
was charged with fighting duel and shooting
Captain Tuckett. At the opening of the Vic
torian reign duelling a common custom in
England. II was an ordinary incident OF
;ested elections political debates. quarrels over
he gaming table and wrangles among officers
n the army. The Prince COnsort took an active
interest in the abolition Of duelling in the army,
and laws We're enacted making 1t punishable
ofence. AS 1t became felony duelling
relegated to fiction and the theatre. Lord
Cardigan OF the last offenders and
when he shot Captain Tuckett he was held re-
sponsbe for violation Of the law AS peer he
claimed the privilege Of being tried by his peers.
The House Of Lords acquitted him on a techni-
cal issue Of minor importance. This acquittal
Tas regarded miscarriage of law and Gre
ited prejudice against the revival Of hereditary
privilege. There was preliminary examination
before a magistrate in that instance, followed by
an Indictment by grand Jury; and the trial came
,n in the House of Lords. forty or fifty peers be-
ng present If precedent be followed in Earl
6usselTs case. there will be writ OF certiorari
after committal 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 dozen
peers ordinarily take part in legislative work
and they may decline TO go to Westminster for
The purpose of hearing evidence and passing
Judgment upon Earl Russells adventures In Ne
vada in quest OF easy divorce and even easier
marriage. The Appellate Jurisdiction act of
lslo entirely remodelled the House OF Lords as
final court Of appeal. This was done after
much controversy, and there have been subse-
auent amendments. The main act provides that
tnree peers specially selected on the ground OF
egal capacity shall be present at the trial Of ap-
peals. These three peers are chosen out of q
lst including the Lord Chancellor peers who
have held high judicial office and four Lords
OF Appeal in Ordinary" This appellate court
with barons and peers created only for life has
absorbed completely the supreme judicial func-
lions formerly exercised by the House of Lords
Ahls has been done since Lord Cardigan was
Hieo for duelling. The procedure. II Earl Rus
sell be tried by his peers for bigamy is uncer-
Isin' but obviously this established appellate
uiOunal would not take charge of the case since
renders decisions only appeal from other
'ourts- Evidently these points have been care