New-York tribune., 1901-07-06
THE RUSSELL CASE.
WITH SIDE LIGHTS FROM AN OLD
STATE TRIAL AND REFLECTIONS ON
MAJORITY VERDlCTS AND MAT
TIERS OF PRIVILEGE.

Involves the revival Of antiquated criminal rro
cedure connected with the offences of the privi-
legged titled class. Ii might be contempt of court
II one were to smile over the Rabelaisian humor
OF the ceremonies under charge of the Lord High
steward and the Great Usher of Black Rod
which seem indispensable to the determination
of the validity of divorce decree in America: ::
and consequently it is more discreet to follow,
the example Of the English press and to await
the orderly course of events in the upper house
There is, however, a statute of limitations fy
which the sense OF the ludicrous is protected
and II Is permissible for one who reads the
record of the last trial of a peer on a criminal
charge, sixty years ago, to enjoy the comedy
OF the proceedings without making a direct ap-
plcation of the parallel to the Russell case
The trial and acquittal of Lord Cardigan for
duelng was a ceremonious and solemn affair
Of state, which was recorded in phrases as
measured and as perfunctory as the details of
royal occupation and recreation in a Court
circular; but when the pages are turned in an
alcove Of the British Museum the humor of the
SITUATION is irresistible 1t is not necessary to
go through the record Of the final passages
before perceiving the genuine comic spirit Of
the trial Of a peer by his peers; although they
funny indeed, with the verdict of mot
guilty on my honor from a hundred or mora
titled jurymen because there was insufficient
evidence Of the full Christian name of Captain
Harvey Garnett Phipps Tuckett whom Lord
Cardigan was indicted for having shot in a
duel on Wimbledon Common. Every phase of
the procedure from the outset was illumined
with humor
When the Lord Chancellor was Informed that
a member of the upper house had been indicted
for criminal offence he appointed a committee
Of the Lords TO ascertain what had been done
on previous occasions when peers had been tried
rlaAr
Lord Shaftesbury headed this investigation of
the journals of the House. and reported in due
time that the trial should be brought on with
all possible dispatch; that all peers having the
right to vote and to take part in ordinary bust
ness OF the upper chamber should be asked to
attend in their robes, and that a stool should be
placed within the bar, on which Lord Cardigan
might sit uncovered and without robes. In ac-
cordance with these recommendations Lord
Cardigan was taken into custody by the Great
Usher of Black Rod and admitted to bail when
writ had been issued by the Crown in Chancerv
for the return of the Indictment and fortnight
afterward, when the Lord High Stewards staff
and garter Were displayed by Black Rod and
Lord Denman was on the woosack as Lord
Speaker, the titled prisoner was led forward and
allowed to sit on the stool, uncovered and with
out robes, after making three reverences' to the
throne. When various functions had been per- |
was requested to rise and plead to the charge |
and with several obeisances he asserted his in |
nocence and demanded trial by those of his |
own order. Black Rod interposed to bespeak |
good deliverance for the lord on the stool within
the bar, but the risk of conviction apparently |
was not serious, for when the evidence for the |
crown had been concluded Sir William Follett |
and Sergeant Wrangham, who conducted the |
defence were content with raising a technical
point Of little importance, and Lord Cardigan
was acquitted on the honor of his brother peers
The trial was indeed farcical as a travesty
upon justice and common sense that critical OBJ
servers declined to take a serious view of It. but |
buntly suggested that there was a premeditated |
plan to secure acquittal The Attorney-General
Sir John Campbell, who was subsequently the
famous Lord Chancellor. was aggrieved when
tnis practical inference was drawn. and ex-
planned that the witnesses did not give the evil
oence which had been expected, but lawyers
could not be convinced that it was impossible
for the Crown to supply sufficient proof of the
full Christian name of a man shot in duel
One OF the peculiarities of trial by the
House of Lords is that the jury of peers is not
sworn IN They all have the privilege of attend
ing the trial, from the junior barons to the
princes Of the royal house, but, although the
roll Of the peerage is called not one of this gem
eral panel of nobility is under obligation to
make oath that he will pass Judgment on the |
facts with mind free from bias or prejudice
When the case is closed each peer rises and |
his verdict of guilty or mot gull
ty, not under OATH but upon my konor." No
member Of the panel is challenged by prosecu-
ton or defence a3d there is retirement of the
jury for consultation over the verdict The
roll Of the peerage is called, and each delivers
ms verdict. Unanimity, moreover, is not |
requisite. Guilt or innocence is established by
a majority vote and there can be no disagree
'nent Of the privileged jury. Law reformers
who have been contending that the requirement
for unanmity in the jury box illogical have
their ideals carried out in these extraordinary
trials Of peers by their brother peers. The
jority necessary for conviction does not need to
be large, much less overwhelming, and verdict
can be secured even if a strong minority. much
less a single obstinate peer, be in favor of an
acquittal
The trend of legal practice in the United |
Kingdom has been in the direction OF limita-
mons upon the traditional right of trial by
Jury. The beach has been substituted for the |
Jcry to a large extent in probate, divorce and
civil practice, and by the Supreme Court of
Jndicature act full facilities have been offered
Tor allowing questions of fact well law to
De tried by a judge without jury. The in
uinsic value OF trial by jury in civil has
oeen impaired by the requirement that verdict
OF twelve men must be unanimous; and the
practice Of allowing jury of six, when one OF
the contestants demands it, has been sanctioned
IN the county courts, and the judge has been
licensed in summing up cases to intimate what
ne thinks the verdict ought to be- Jury trial
has been retained in criminal cases, at least
lor serious offences involving issues of fact and