LORD ELLEN BOROUGH'S SEAT IN THE CABINET.

HC Deb 03 March 1806 vol 6 cc286-342

Mr. Spencer Stanhope

said, that though he had had the honour of a seat in many parliaments, had been a constant attender, and spent many of the best hours of his life in that house, yet he felt himself at that moment in a situation novel and embarrassing to himself, and beyond his abilities to fill adequately. A train of circumstances wholly casual had led him to be the mover of a question of high constitutional importance. Had he considered it at all in the light of an opposition question, he certainly would not have been the mover of it; he thought it much more of the nature of an election petition, denying the eligibility of the lord chief justice of England to a seat in the Cabinet. Had he meant it as hostile to the present administration, the right hon. gent. opposite to him (Mr. Fox) would hardly have been the first to whom he communicated it, which in truth he was. The proposition he meant to conclude with, he should have been ready at any time and under any administration to support. If the late minister had called the late lord Kenyon to a Seat in the Cabinet, and the right hon. gent. had then objected to the measure, he would have found him amongst the readiest of his supporters. It Was even friendly to the administration in two different ways; if his arguments prevailed and the chief justice no longer remained a Cabinet minister, he thought that; not withstanding that noble lord's acknowledged abilities, the Cabinet would be more popular throughout the nation; if they did not prevail, at least it afforded to the right hon. gent. an opportunity of removing those objections which had made so strong an impression on the public mind. To destroy all possible suspicion of this being the commencement of an opposition to an administration which had not yet bad time to do any one act, he thought it fit thus publicly to declare, that if he had the honour at this moment to be called into the royal closet to be consulted on the propriety of removing from office all who had been just appointed, he should most earnestly disadvise any such measure. This declaration was probably the only mode in which so unimportant an individual as himself could ever offer any advice to his sovereign, but he would take the liberty of using this opportunity of giving some advice also to the right hon. gent. opposite. If that right hon. gent. preferred the Character of the leader of a party to that of the ruler of a nation, if he could not recollect with a view to imitate the noble saying of Louis the 12th of France, "that a king of France should not remember the quarrels of a duke of Orleans," if at the Very moment he was calling for an oblivion of past causes of difference, he went out of his way to declare that he himself retained every sentiment he lad ever uttered, even when he could not but know that in some of them a vast majority of this house and of the country were against him, I will with confidence foretell, that his administration will not be such as the times demand; that it will neither be honourable to himself nor beneficial to his country, nor yet of long duration.—I come now to the argument on which I mean to found my motion, and request that the king's speech at the beginning of his reign respecting the independence of the judges, and the act passed in consequence of it, May be entered as read. On this ground, I take my stand; here I find the great principle recorded and enacted, that the judges should be independent, and their independence made permanent. What ever tends to lessen that independence, to render any situation a judge may hold less permanent, is a breach of the spirit of that law. Such I affirm a seat in the king's executive council to be; it is a station of the highest honour that a subject can attain, and he holds it only during pleasure. I envy not the feelings of those who may think that there being in this case no salary annexed can make the smallest difference in the argument; money is so far from being the only inducement to influence a generous mind, that it is almost the lowest. I am sure the right hon. gent. opposite would not exchange his situation in the Cabinet for a salary ten times the amount of what he now receives. It has been alledged, that it would be a limitation of the royal prerogative to prevent the crown from consulting in Cabinet with any privy counsellor it may chuse; to this I reply, with all or any except a judge at common law. By making a man a judge he becomes essentially disqualified from being a party or adviser in prosecutions. A judge should not only be above all bias, but above all suspicion of bias. How is that possible, if he is in the situation both of party in council and judge in court? It is a pitiful subterfuge to say, that in such cases he may withdraw or refuse to attend the Cabinet. What security can we have? What knowledge can the culprit have that he has so done? But if he were, still the partners of the firm remain. It would be a good cause of challenge against him as a common juryman; and, is it to be endured, that a judge should be allowed to try a cause upon the bench, which he would be disqualified to decide upon in the jury-box? Besides, sir, as a Cabinet counsellor, he would sit in a different situation from the rest of the board; though he should incur the censure of this house by his conduct there, he would still remain the lord chief justice of England. Would that be fitting? Would it further the ends of justice? Would it not be a monstrous incongruity, that a man condemned by the declared voice of parliament, should remain at the head of the criminal law of the kingdom? Again, sir, though I contend it does not limit the prer gative of the crown, it does in one sense limit the powers of this house. It is not probable that we should ever again come to such a resolution as was passed in the very last sessions, when we ordered lord Melville to be tried in the court of King's Bench. Had the lord chief justice been then a colleague in Cabinet with that noble lord, it could hardly have entered into the mind of a single individual in this house, to have sent him be tried before one of his colleagues.— I come now to what have been mentioned as precedents; but, in the first place, I protest against all in favour of this appointment, which were not distinctly known to this house, and which were antecedent to the first of George III. which is The last the last declaration of parliament proclaiming the independence of the Judges. I will first notice the argument, if such it can be called, that the chief justices have more than once been named of councils of regency: to this no objection in my opinion can be made. No person in the state can be a fitter member of a regency than the lord chief justice of the King's Bench; but, surely, it necessarily implies a temporary suspension of his functions as a judge. Nor is this my opinion only; I take it from judge Blackstone, who gives precisely this as the reason why it would be wrong for the monarch in person to administer judgment in Westminster-hall; namely, that being the prosecutor, he ought not to be also the judge. I have heard it rumoured, that lord Holt and lord Hardwicke were for a short time in the Cabinet at the time they were chief justices; but I can find no proof whatever of the fact, and certainly none whatever exist of the house of commons having any knowledge thereof at the time. Lord Mansfield, then, remains the only instance that can fairly be adduced, and when was that known to either house of parliament? Not till ten years after he had withdrawn him self from that situation, and not till it was charged upon him as matter of blame by the father of the present chancellor of the exchequer, the late marquis of Lansdowne. High and splendid as that noble lord's abilities were, there was a time when as a constitutional lawyer he did not stand very high in the estimation of the right hon. gent. opposite to me. A further confirmation of his not being nice upon subjects of this nature is, that he had in the year 1780 the indelicacy to preside on the trial of lord George Gordon, who was charged with heading the very mob who burnt lord Mansfield's house. Why is it that the appointment of chancellor should be revocable at pleasure? but, because he must by his office be necessarily concerned in affairs of state. Whence is it that puisny judges never set their foot in the court of St. James's, but, because they should not only be unbiased but unsuspected of being influenced by the hope of preferment?—I come now to the precedents on the other side. The evil effects of statesmen acting as judges, were severely felt in former times in the court of Star Chamber, and not less so of judges being statesmen in the iniquitous conduct of lord chief justice Jefferys. The last precedent I shall adduce, and the only one in which the house of commons has been called upon to declare an opinion on this subject, is to be found in the journals of the 3d of May, 1782?, when the right hon. gent. filled the same office he now does. An address on that day passed this house to his majesty, praying that he would be pleased to recall sir Elijah Impey, knight, one of the judges of the supreme court of judicature, at Fort William in Bengal, to answer to the charge of having accepted an office granted by, and tenable at the pleasure of, the East-India company, which had a tendency to create a dependence in the said supreme court upon those, over whose actions the said court was intended as a controul, contrary to the good purposes and true intent, and meaning of an act of the 13th year of his majesty's reign. Sir Elijah Impey could never be meant to be a controul over the servants of the East-India company, but wherein they had done wrong: and surely, the lord chief justice of England has as much controul over all wrong-doers in this country, as he could have in Bengal.—I will add but one sentence more of my own: That my objection to lord Ellenborough's remaining in the Cabinet, is because he is a judge. If he were not so, there is not a man in it whom I should think more worthily placed there than that noble and learned lord. I will now read two quotations from authors of the highest authority, and then the three resolutions which it is my intention to move. Mr. Addison says, in one of his periodical papers, "the best law," (meaning the act of King William) "that ever was passed in our days, was that which continues the judges in their posts during their good behaviour, without leaving them to the mercy of such as might, by an undue influence over them, trouble and pervert the course of justice." Judge Blackstone says: "In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed but not removable at pleasure by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative; the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law, which though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an over-balance for the legislative. For which reason, by the statute of 16 Car. I. c. 10. which abolished the court of Star Chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council, who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided in a free constitution, than uniting the provinces of a judge and a minister of state." The hon. gent. then moved:—First; "That it is the opinion of this house, that it is highly expedient that the functions of a minister of state and of a confidential adviser of the executive measures of government, should be kept distinct and separate from those of a judge at common law."—Second; "That it is the opinion of this house, that those members of his majesty's most honourable privy council, whom his majesty is advised to direct to be habitually summoned, and who are so summoned to that committee or selection of the said council, which deliberates upon matters of state, and which is commonly known by the name of the Cabinet council, are, and are deemed to be, the confidential ministers and advisers of the executive measures of government. "Third; "That the so summoning to the said committee, or Cabinet council, a lord chief justice of England, to sit and deliberate as a member of the same, is a practice peculiarly inexpedient and unadvisable, tending to expose to suspicion, and bring into disrepute the independence and impartiality of the judicial character, and to render less satisfactory, if not less pure, the administration of public justice."—On the question being put on the first resolution,

Mr. Bond,

said, if he only rose as the friend of the noble lord who was the object of this motion, and he was proud to enjoy that honour, he should return his thanks to the hon. gent. who had brought the subject forward for discussion. It was well known that this subject had undergone much discussion out of doors, where it had not been fairly considered. He admitted, that the objection to the appointment of his noble friend to the Cabinet, was one which was calculated to make an impression on the first view. But he hoped to persuade the house before he should sit down, that however plausible this objection might appear at first, upon being thoroughly sifted, it would be found to contain nothing real or solid. The object of the present motion, was to remove the noble person, who was the object of it, from the seat he possessed in the Cabinet. The whole tenor of the hon. gent.'s speech pointed to that end. And at a moment of the most unexampled danger and difficulty in which the country had ever been placed, when it was on all hands admitted, that all the wisdom, all the energy, and all the talents of the country should be united in its service, the first question that was brought forward was one for depriving the country of the service of a noble lord of such high talents, such eminent abilities, such great experience, and incorruptible integrity, as were possessed by the distinguished personage who was the object. of this motion. He admitted, that if the noble lord had been called to a situation incompatible with his judicial functions; if he had been brought into an office that would impede the impartial administration of justice and the laws; if such were the case, whatever advantages might be derived from his eminent abilities, he would rather they should all be foregone, than that such consequences should be produced. He felt, that the administration of justice was one of the greatest blessings any country could possess, and that it was purer in this than in any other quarter of the globe. He considered the end as infinitely beyond the means. It was the upright administration of justice that secured the government and protected the people, and insured to the individual, who sought wealth in foreign climes, the quiet and undisturbed enjoyment of the fruits of his industry on his return to his native land. There would be no value in wealth, if the government at home were weak, and the channels of jus- tice polluted. But he wished the house to consider what would be the effect of calling lord Ellenborough to the Cabinet? That noble lord was no common person. If any man could be independent; if any human circumstances could insure independence, that noble lord could not but be independent. He had attained the highest rank in his profession. He stood in that proud, eminent, and exalted situation, in which no object could he presented to him to tempt him to swerve from his duty. He was a public character too, more under the observation of the public than any individual in the nation. All the business of his court was public, and there was a greater variety of cases submitted to its decisions, than to that of any other court of justice. He would venture to say, that whilst so high a sense of moral rectitude, whilst so scrupulous a regard to justice prevailed in this country, no chief justice would ever be found to act unjustly. He should be glad to know, what objection there could be to the noble lord's assisting at the deliberations of the Cabinet on foreign affairs, and that council was first called the committee for foreign affairs? The relations of foreign nations, and of this country with them, must in the present state of things, constitute a considerable part of the deliberations of that council; and he would be glad to know what there was in such discussions that could tempt a judge to swerve from his duty? It was perfectly true, that there might he questions relative to sedition, insurrection, or treason, brought into discussion in the Cabinet, and that, after attending such discussion, the chief justice might also have to preside a 8judge at the trial of the offenders. But what effect would that produce on his mind? He desired it to be recollected, that no person was appointed to the place of judge, till after a certain time passed in the profession, when he had acquired profound learning and great experience. Was it likely that in such a man his principles would be afloat, or that be would be led by the Cabinet? Was it not more likely that he would lead the Cabinet. (A loud cry of hear! hear!) He should repeat the expression. He should again insist, that on questions of criminal law or prosecutions, it was likely that a criminal judge's opinion would influence that of the Cabinet, and that in that sense he would lead the Cabinet. If his advice should he acceded to, he would come to the trial without any bias; if his opi- nion should be rejected, he would not be the less influenced by it, and would exercise his function under the obligation of his oath; so that in either case it would come to the same thing. The hon. gent. had adverted to the case in which the chief justice would come to the trial as a party, as in the case of a libel against the ministers, of which he was one. Every man who knew any thing about the administration of justice, knew, that in trials for libel, little was left to the judge; whilst the whole was decided by the jury. The judge stated the law; and if he mistated that, or otherwise injured the party, he had his remedy, in an application for a new trial to the court. In cases where libels happened to be under consideration of the Cabinet, a judge need not attend, or, if he wished not to preside at the trial, he might apply to have another sent, and the commission—(hear! hear!) He was aware of the use that would be made of this observation, that of inconvenience; but he contended that no such consequence would attend the practice. He hoped, therefore, that no argument would be founded on that ground. As to the supposition of the incompatibility of the two offices, from the circumstance of the possibility of suspicion being entertained with respect to the administration of justice, the hon. gent. stated the suspicion in the first resolution, but gave it up in the last, where he admitted the purity. If the purity of the administration of justice were doubted, then there might be ground for suspicion; but when that is admitted, the administration of justice must be satisfactory. A man should act in the strict line of his duty. If he was to avoid a duty for the purpose of evading suspicion, he could never act right. But he would ask, if the existence of suspicion, or if even well-founded suspicion were to be made the ground of a motion for removing the noble lord from his majesty's Cabinet, whether the hon. gent. would go farther? Whether he would move to have the noble lord struck out of the list of privy counsellors? off the list of peers? Did not the same suspicion apply in an equal degree to both these cases? All judges were summoned to examine prisoners with the privy council and Cabinet ministers conjointly. The cabinet discussed measures in the abstract. Chief justice Holt attended the examination of the rebels who were afterwards to be tried by him; and chief justice Eyre attended for the same purpose in the privy council, in a recent instance, and afterwards proceeded on the trial of the individuals there examined. Was it possible for a noble lord of such eminent and transcendent talents as the noble lord; was it possible for any man that was a statesman, and that noble lord was a great statesman, if he saw a party formed to thwart and embarrass the measures of government, not to take a part on such an occasion? If the gentlemen were serious, they had not reached half way towards their end. What was the end the gentlemen proposed? What was the object of their record? What the end of their innovation? (hear! hear!) He repeated that it was an innovation. It had not been stated either in the speech of the hon. gent., or in the resolutions, that the appointment was unconstitutional, illegal, or unprecedented. It was not unfair in argument, therefore, to assume the omission, to state what amounted to an admission, that it was not so. As to what had been said of the effect of the chief justice prejudging a case from the discussion it might undergo in the Cabinet, that would apply equally to all magistrates, who first examined then case by the testimony of witnesses, and afterwards sat at sessions. With respect to the authority that had been so much relied on, on which the hon. member had laid so much stress, viz. the quotation from Mr. justice Blackstone, the whole of that passage was part of a longer one, which Mr. justice Blackstone, when he copied this passage into his work, understood it in the sense in which the hon. gent. represented it, the theory was ingenious, but it did not practically apply to the circumstances and constitution of this country. As to all that had been said with respect to the impropriety of any persons being admitted into the Cabinet besides the chancellor and the ministers of state, who held executive offices under the crown; and that those should not be called to that council who might be summoned for advice this day and not the next, it seemed to him like raising up shadows for the purpose of fighting them. There is one case in which the situation of the chancellor cuts in more nearly with that of the chief justice. In the case of a petition of right, where a sub- ject is the claimant against the crown, he has to decide, and yet is never suspected of acting under any bias. In the case of the trial of peers also, he has great powers for according in the present practice, he invariably acts as lord high steward. During the sitting of parliament, his powers are more limited, he acting only as speaker, But in the recess he pronounces the law in every instance. Before the 7th of William III. the lord high steward had extraordinary powers indeed, having to summon at first only sixteen peers, though afterwards twenty-three. The peers act as jurors, and he explains the law precisely as the lord chief justice does. This had been the uniform practice, and yet no gent. had yet been found to get up in his place and say that this practice was an evil that ought to be got rid of. He admitted that it was better to look for precedents in modern times, though he would not allow, that no instance was to be taken antecedent to the time of the 1st of George III. to shew the non-existence of that jealousy, which, in the present circumstances and times, began to display itself. In the reign of Edward III. an act was passed, directing, that. the chancellor and the king's chief justice should be near his majesty, in order that he might not want the advice of the sages learned in the law. However, it was better to refer to modern times. He believed lord Hardwicke, whilst chief justice, had a seat in the Cabinet. He did not state this as a matter that could be proved, though he had it on the authority of persons on whose veracity and accuracy placed the greatest reliance. By this it appeared, that that noble and learned lord had not thought a place in the Cabinet inconsistent with the duties of his judicial office. Lord Mansfield too, for whom he had a high veneration, though he could not accord with his principles in every instance, had continued to sit in the Cabinet whilst chief justice from 1757 to 1765. He too did not think the situations incompatible. It was to be recollected too that no apprehensions were then entertained on the subject; no such motion as the present had been made. This was a convincing proof of the acquiescence of the house and of the country in the propriety of the measure. In the sixth of queen Anne, when her dissolution was apprehended, an act had been passed for establishing a regency, on that event, to continue for six weeks after her death. This regency was composed of the seven great officers of state, amongst whom her chief justice Holt was one. It was not be supposed, that such a measure would have been passed without his concurrence. It was fair, therefore, to infer, that his authority was in favour of the measure, though he died before queen Anne; and chief justice Parker became, on her majesty's death, one of the justices. He was afterwards appointed one of the confidential advisers of his majesty George I. The authority of that justice too was in its favour. By the statute of the 24th of George II. chap. 24. which was passed in contemplation of a minority, a regency was appointed, composed of five persons, with extraordinary powers. If the majority did not agree to the measure, parliament could neither be assembled nor dissolved, neither the question of peace or war decided. The chief justice was one of the commissioners of regency, and yet no jealousy was felt on the subject. The act too, if it had taken immediate effect, would not have been of short duration, his present majesty's age being at that time 13 years. The next instance of an act of this nature, was in the 5th of his present majesty, for the appointment of a council of regency; and as the act was passed in contemplation of the possibility of an indisposition which his present majesty laboured under at that time, terminating fatally; if that event had taken place, the regency would have had a long continuance, as the present prince of Wales was then but three years of age; and it was to be recollected that this measure passed, notwithstanding the effects of an opposition that afterwards overturned the administration, and after the same gracious measure which his majesty had recommended for the security of the independence of the Judges. Yet no one of the very ingenious men who composed the opposition of that day, started a question respecting the jealousy that was at this time sought to be promulgated. If there was any trust to be reposed therefore; if there was any sacred trust to be conferred; if there was any degree of confidence of a peculiar nature to be placed in any person, the house would resort to the noble lord, who was the object of the present motion, in place of exciting amongst the subjects of the country a distrust in the administration of justice. It should be recollected, that this was the first time that such an effect had been as- cribed to such a measure. When it was considered, that the measure then under discussion had received the sanction of so many reverend, learned, and upright Judges; when it was recollected, that it had been acted upon in the best periods of our history, and that now for the first time it was asserted, that the calling to the advice of his majesty such a nobleman as the object of this motion, a man of such talents, knowledge, experience, and wisdom, would have the effect of corrupting the administration of justice; he implored the house not to remove a nobleman of such integrity and independence, who had reached one of the highest offices in his profession, to whom only one step more remained to be ascended, and who, it was well known, had refused that step, from the means of contributing to the public service by his counsels and advice. He called on them not to restrain the prerogative of the crown, in the undoubted right his majesty possessed of calling any one of his subjects to his councils. After a few more observations on this subject, the right hon. gent. concluded by moving as an amendment "That the other orders of the day be now read."

Mr. Canning

said, that before he proceeded to state shortly the grounds oft which he was about to support the motion which had been made by his hon. friend, he wished to say a few words, with a view to disclaim the motives which seemed to be attributed to him and those who thought with him, by the right hon. gent. who spoke last. That right hon. gent. had said, that at a moment when the union of all the talents that could possibly be collected was so necessary to meet the dangers and difficulties by which the country was at this moment so peculiarly weighed down, he and his friends were attempting to drive from his majesty's councils a person of the most eminent talents, acknowledged virtues, manly judgment, and unquestionable integrity, which he had described. He, for one, protested against this most unfair mode of arguing. When a question of this nature was brought forward, if he had his wish, allusions to personal character would form no part of the subject. If the question was at all worthy of attention, and that it was, the right hon. gent. himself admitted, when he told us that this affair had made a deep impression on the country, and that the grounds on which it was supported appeared at first view extremely plausible, if it was at all worthy of attention. then it was fitting that it should be discussed on its own merits, as relating to a chief justice, and not as referring to any particular individual. It was therefore, he contended, unfair in the right hon. gent. to impute any motive whatever to them that pointed at the character of lord Ellenborough, when they in fact argued not from the unfitness of Ellenborough, when they in fact argued not from the unfitness of that noble and learned lord in particular to fill a situation in the Cabinet, but from the unfitness of the place for any person who held the office of lord chief justice. If the high talents and integrity of lord Ellenborough were deemed so essential in the Cabinet—and to every thing that could be said in his praise he was perfectly willing to subscribe—then there was an obvious mode of availing themselves of those talents and that integrity, by advancing the noble and learned lord one step higher, and putting into his hands the great seal; and, after the panegyrics which had been lavished on the independence of the noble and learned lord, he could not believe that he had refused to accept this promotion, from the consideration that it was better to retain a place for life than accept the precarious office of lord high chancellor. But, not contented with asserting that a judge might with propriety sit in the Cabinet, the right hon. gent. also maintained, that his very independence rendered him one of the fittest persons in the world for such a situation, because he could give his opinions unwarped and unbiassed by any consideration of self-interest. He viewed the matter, however, in a very different light from that in which it was regarded by the right hon. gent. He considered it in that point of view in which it had been represented by his hon. friend near him, who had not been answered on this head. He thought that the holding a situation which was in its nature precarious, and yet an object of ambition, had a tendency to destroy the confidence which resulted from the independence of the judge. He trusted he could not be here misunderstood, so far as to be thought to allude to any particular individual. He only viewed the point in the abstract, and contended, that when you placed, in the situation above referred to, a person who by law had been jealously, made independent, you did in a great measure do away the effects of that independence. This would be evident, if once it was admitted, and it could not he denied that the removal of a lord chief justice from a place which was an object of ambition, would be attended with sonic degree of discredit to him, for, to avoid this discredit, there would at least, on some occasions, be a temptation for him to act in a manner not altogether consistent with his duty and character. That it was an object of ambition to hold a place in the Cabinet, he thought could not be denied. The thing had of late been abundantly proved; for it was impossible to converse in the street, or read the newspapers during the last six weeks, without knowing how eagerly such places were sought after. In four instances it had been lately proved that Cabinet places were considered as objects of ambition, in addition to other efficient situations. He therefore, he supposed, might take it for granted, that a place in the Cabinet was an object of ambition; and when this was admitted, the matter of salaries and emoluments made very little difference in the present question. The right hon. gent. agreed in the panegyrics that had been pronounced on the administration of justice in this country. It was one of the greatest blessings, if not the very greatest, of our constitution. It was no less firm than it was valuable. It had withstood the shock of parties, of usurpation, and of rebellion. To what cause were we to attribute this? Not to any particular statute by which the distinction between the judicial and the executive powers had been established, but from the universal feeling and sentiment that such a distinction ought to exist, and that with the exception of a very few instances it had existed. But, if the administration of justice in the country was thus admirable, it was the most important of all duties, and would afford ample employment for all the talents, virtues, integrity, and every other excellent qualification, which had been justly ascribed to the noble and learned lord who at present occupied the situation of lord chief justice. What he objected to was this, that instead of confining the attention of any lord chief justice to the discharge of his duty in that capacity, which would afford him full and ample employment, you were starting other objects of ambition to which his views might be directed. He would indeed still pursue the objects which were more intimately connected with his profession; but instead of building his fame on the strict and honourable administra- tion of justice, he might be aspiring after other objects of ambition. A most serious evil was thus introduced, which would be done away by the passing of these motions; or, if that could not be hoped for, he would at least indulge the expectation, that it would be remedied by the mature and unbiassed reflection of those persons who now formed his majesty's administration.—There was one very great fault and error into which the right hon. gent. had fallen, for his argument seemed to imply, that independence was not so absolutely necessary in a judge as had been imagined; but then he said, that there was always a remedy in case of error. But the point was, to guard, if possible, against all chance of error from any bias of the judge in the first instance. The right hon. gent.'s argument went to this extent: suppose the case of a libel; he said, that the matter did not so much rest with the judge as with the jury, and after all a new trial might be granted. But, was that the way in which the right hon. gent. thought a great constitutional question ought to be treated? Was that the way in which a measure ought to be discussed, which, by his own admission, had made so great an impression on the feelings of the country But then he said, that in the agitation of particular questions in the Cabinet, the noble and learned lord might, if it was thought expedient, avoid attending. This might undoubtedly be the case; but was this the sort of security which ought to be enjoyed in this free country? The right hon. gent. had found fault with these motions, because they were so moderate, and spoke the simple truth, and nothing but the truth. It was well known there was no positive law existing at present which opposed this measure, and therefore it could not properly perhaps be called illegal, and it might not be correct to call it unconstitutional till the point was clearly established. But what he said was, that it was extremely inconvenient, and contrary to the principles of reason and common sense, that the judicial and executive powers should be combined in the same person. As to the point of suspicion, it was certain that no man was obliged to remove from a situation where he was useful, merely because others chose to suspect him without reason. But if, however, an alarm was by this means occasioned relative to a matter of such great importance as the present, and if it was not necessary or very expe- dient that the cause of such alarm, however unfounded, should exist, he thought it was proper that it should become a legislative object, and that every occasion of suspicion should be done away. He was surprised to hear from the right lion. gent. who was a lawyer, that it was a matter of no great consequence that suspicions should exist respecting the independence of a judge. There would always, in such a case, be doubts respecting the justice of his decisions; therefore, though there might be a remedy, it was better that there should be in the first instance no cause even for suspicion of a bias. But the right hon. gent. complained not only of the terms of the motions, but said that they did not go far enough in practice; for, in order to be effectual they ought to go so far as to deprive a lord chief justice not only of a place in the Cabinet, but also of his place in the privy council, and of his peerage. He would not, however, enter particularly on this point. But with regard to the Cabinet, the right hon. gent. said, that it was not recognized by the constitution, and that, in fact, it was nothing else than a select committee of the privy council, called at the discretion of his majesty. He never heard a more untenable proposition. In a free country such as this, where a controul was necessary, and where responsibility must necessarily lodge somewhere, were we at this day to be turned round by being told that there was no such thing in the constitution as a Cabinet? We bad persons who advised with his majesty, who performed all the functions of government, who were known all over the country to be so, who were known as the Cabinet all over London, and even in the lobby, but, the moment we entered this door, then we were told that there was no Cabinet! It might be true, indeed, that the constitution recognized nothing under the name of the Cabinet, but it was not the less certain that there was such an assembly with whoam the responsibility for whatever advice they gave his majesty rested.—Now, as to the question of responsibility; the right hon. gent. allowed, that every individual who joined the council in advising his majesty, was responsible for the whole. Lord Ellenborough then might be responsible for the whole, and if this was the case, he would beg of gentlemen to consider, whether on the principles of reason and common sense, or those laid down by the best authorities, whether a judge ought to be placed in a situation where it would be of lord utterly utterly impossible for him to divest him self entirely of the feelings of party, and which would naturally render him liable to suspicion? Now, with respect to the class of examples mentioned by the right hon. gent., there was a great and evident distinction between them and the case under consideration. It was not by any means unfit that a judge should form part of a council, which was to preserve the rights of sovereigns, but where no party politics prevailed. But here, in fact, the judge was under the controul of the executive government, and instantly became a party politician; and, if ever there could be cases, where he should doubt whether it was proper that judges should occupy places as regents or governors, it would be in cases where these judges had in the first place been Cabinet ministers. The case of lord Hardwicke, he understood to be given up, [no, no, from the other side]. He certainly had heard nothing positively asserted on that head. But the truth was, that he, after accepting the office of the chancellor, had held his former situation for a short time, merely till a successor could be appointed. Why, he would give them another instance of this kind: lord Eldon had for two months subsequent to his acceptance of the chancellorship, held his former office of chief justice of the Common Pleas, till his successor could be appointed. Why, then, they remained with the single example of lord Mansfield. The right hon. gent. had said, that lord Mansfield had held both situations, and no notice had been taken of it by parliament, although the thing must have been notorious. Now, though positive evidence could not be had on this subject, yet he could bring circumstantial evidence that the thing was not generally known. There were surmises about it, and as often as it was alluded to, it was marked with reprobation. Indeed, 13 years afterwards, his having sat in the Cabinet while lord chief justice was imputed to him as a charge by tile father of a noble lord opposite to him (lord H. Petty), and the question directly put to him, whether or not the thing was true. This was put in the most forcible terms, and lord Mansfield admitted it, but said that he had, for some time, begged leave not to act as an efficient member. From this it appeared that the example was by no means notorious, and it was still mere evident from the remark of lord Shelburne, who said, "that the noble lord had confessed that there was a time when he had infringed the principles of the constitution by acting as a Cabinet minister and as lord chief justice at the same time." This was the remark of lord Shelburne, who continued by observing, "that the excellence of the British constitution lay in keeping the executive and judicial powers as separate and distinct as possible;" and why? Not for the reason given by the right hon. gent. but "that a person might not be under the necessity of advising in one capacity what he might be called upon to execute in another." This example then fell to the ground. No one was more ready to acknowledge a high admiration of the talents of lord Mansfield than he was, but he would ask any person who had read the history of these times, whether that noble and learned judge would not have done much more essential service to his country if he had not mixed the character of the politician with that of the judge? But you had the example of his matures judgement against that of his earlier years; for by refusing to act as a Cabinet minister after the year 1765, he in some measure tacitly condemned his former conduct. The only defence that could be offered for the admission of the chief justice into the Cabinet would be necessity, or strong expediency: but neither had been proved. There was an attempt to prove the expediency: but as to the necessity, the proof had not even been attempted. But having failed in the way of example, the right hon. gent. had recourse to analogy; and observed that the lord chancellor was a Cabinet minister; and said, that he would not be answered here with the remark that the chancellor had nothing to do with criminal causes. But he must be s answered in this way, and the chancellor could be removed in two ways, either by the crown, which would not continue to employ a servant who might be disliked; or by an address of parliament, for malversation in office. But, suppose lord Ellenborough should give the worst advice that could be conceived to his. majesty; suppose he should advise him to trample on all laws, or throw them into the fire, what could be done? Could you remove him from his office of chief justice, in which he had committed no malversation? or could you address the throne to remove him from the Cabinet? For his par, he could conceive no greater curse to a free Country than an irremovable Cabinet minister.—Now, these were the grounds on which he supported the motion. He allowed all the talents and virtues that had been ascribed to the noble and learned judge, and had no doubt that their application would be found of no little use in the Cabinet, were it not that he held a situation utterly incompatible, in his ideas, with the proper discharge of its duties. He thought it therefore unwise in the greatest degree to place him in a situation which might bring suspicion on his judicial character. The example was supported by no analogy. No expediency was proved, and the proof of a necessity had not even been attempted. He valued highly the noble and learned lord's abilities; but he thought the administration of the municipal justice of the country a matter of such infinite importance, that he would not purchase all the services which for years his talents could render in the Cabinet, for a suspicion of one hour attached to his character as a judge.

Lord Temple ,

said, he was convinced that the hon. mover of this business had not brought it forward as a party question. He was satisfied that, as he himself stated, he had brought it forward entirely as a constitutional question, which he would have supported at any moment, and in opposition to any administration. Yet he lamented much that before such a thing was proposed, the hon. mover and those who thought with him had not better weighed the authorities on which they had acted. Nobody was readier than he was to admit, that while the king had an undoubted right, by his prerogative, to choose his ministers, parliament had a right to declare its approbation or disapprobation of those ministers. But when a charge, instead of being brought against the ministers collectively, was confined to one individual, it assumed a most invidious aspect. The right hon. gent. (Mr. Canning) had said that his right hon. friend (Mr. Bond) had admitted that an impression had been made on the minds of the people of this country by the measure in question, and that it was a very proper subject for enquiry. But then that impression had been made, not by the thing itself, but because several respectable people had expressed doubts on the subject, to whose oppinions they were accustomed to pay a becoming deference. This was the real cause of whatever impression had been made, and this was all that was meant by his right hon. friend. But without troubling the house at any length after the question had been so fully discussed by his right hon. friend, he would advert to it briefly in a constitutional point of view. It was said on the other side, that the chief justice of the King's Bench, ought not to be a Cabinet minister. Now, from our history, till a late period, nothing could be found concerning a Cabinet, and the privy council performed all the duties which were now executed by a select committee of that council. As a proof of this, Charles I. was the first of our monarchs who formed a Cabinet, which was afterwards abolished by Charles II. At the death of queen Anne, the dukes of Argyll and Somerset entered the Cabinet, and insisted upon taking their seats as members of the privy council. The Cabinet was not responsible as a Cabinet, but the ministers were responsible as the officers of the crown. Every one's responsibility depended on the office he held. A privy counsellor was responsible as a privy counsellor, and a peer as a peer; but none were responsible as Cabinet ministers Now then, though these resolutions should pass, they could only be considered as mere waste paper; for though lord Ellenborough should be removed from the Cabinet, he would be exactly in the same situation as before in his capacity of privy counsellor, in his capacity as a peer, and as the representative of the king. If they were to be passed, then they would not go far enough, for in order to come up completely to the intentions of those who supported them, they ought to propose the removal of lord Ellenborough from his situation as a judge, as a peer, and as a privy counsellor. If there was an evil, the remedy proposed was inadequate to remove it. If the gentlemen thought that the constitution wanted reform in this point, it was open for them to state what reform they wished. The present motions were mere nullities. Now, this brought him to the question, whether a judge might properly advise his majesty as a Cabinet minister? The hon. mover had recourse to judge Blackstone on this point; yet, however, respectable as this authority was, he world in such a case as this expect something more than assertion; but he would go farther, and say, that the meaning of the judge in this passage, was by no means that which the hon. mover ascribed to him. His meaning was to be collected from his illustrations; he illustrated his meaning here by two cases. In the one, he said, that it was consistent to have the judicial power connected with the executive, or legislative, and this inconsistence was done away by the act of Charles II. which abolished the Star Chamber. Now, what were the powers of the Star Chamber? They were in all cases to decide without a jury, and without leaving the right of appeal to any other tribunal. The other case was, that despotism was more tolerable in France than in the East, because the judicial power was committed to the parliaments. Therefore by his own meaning, as it must be collected from his illustrations, the sentiments expressed in the passage adverted to will not apply in the present case. But the hon. gentlemen had not made up their minds on this business it appeared. The hon. mover insisted strongly that the admission of the lord chief justice into the Cabinet was illegal, but his right hon. friend near him said that it was not illegal, but that it was inadvisable. Lord Ellenborough had assisted in the Cabinet at the examination of governor Picton, and afterwards sat as judge on his trial. The judges were often called to the house of peers to give their advice to the lords, and therefore might often give opinions which might afterwards lead to trials before themselves in their own courts. Yet this was no objection to their giving their advice to the peers. The lord chancellor sat in the house of lords and voted in appeals from his own decisions. He desired them to look at the case of the rebel lords, in which, as well as in other instances, many peers sat in the Cabinet during the examination, and afterwards voted as judges in the house of peers. Chief justice Eyre hay sat in the Cabinet and examined offender, whom he afterwards tried in his own court. After some instances of the same nature, the noble lord adverted to the case of lord Mansfield. He had in the course of this day seen the original writ of summo[...]s issued to lord Mansfield. He could take upon him to say that noble and learned lord attended every council from 1760 to 1763. In 1763 he left off attending the council, not from any sense of its incompatibility with his judicial situation, but, according to a letter of his own, which was in existence, because he would not sit with the duke of Bedford, whose measures he disapproved of. In 1765 he returned again, and was named as one of the council of regency in the bill framed by sir Fletcher Norton, who would not have included him if the association was unconstitutional. In the riots of 1780, lord Mansfield was present at the proceedings in the council, and afterwards sat as judge upon the rioters. From all these facts, he could see no parliamentary ground for the motion now before the house. The purity of the judge could not be sullied by giving his advice in political matters. From the earliest periods of our history, the chief justice had been one of the king's vicegerents, one of the members of the councils of regency, and always summoned to give his advice on cases of great public delinquency. Thus the principle of constitutional law was in favour of the appointment.

Mr. Canning

admitted, that up to 1763, lord Mansfield sat regularly in the Cabinet, but never after 1765; therefore the latter part of his life was, in this respect, a condemnation of the first.

Mr. Secretary Fox rose

and spoke as follows:—Before I proceed to discuss the merits of the question under consideration, I beg leave to say a word or two as to the advice which the hon. mover has thought proper to offer me; an advice which, by the bye, was the strangest prelude that could be imagined to the observations which afterwards followed. First, the hon. gent. tells me I must not adhere to my former principles, if I hope for the support of parliament and the country, and yet the instant after (whimsical enough to be sure) he recommends me to act consistently with myself by supporting the proposition he has thought proper to bring forward. Thus, he would have me abandon all my former sentiments, and still, in a particular case that suits his opinion, persevere in maintaining them. He would have me too not to recollect the principles I expressed upon the subject of sir Elijah Impey. No, the hon. gent. would fain have me bound not by any opinion which I ever did express, but by one which I did not. Now, with regard to the subject before the house, I must say, that the introduction of it is to me matter of surprise. It is the first instance that I have ever heard of such a thing as the Cabinet council becoming the subject of debate in this house. I never knew of the exercise of the king's preroga- tive in the appointment of his ministers to be brought into question upon such grounds as have been stated this night. No doubt, if any one should be appointed to the privy council, or to any select committee of that council, against whom personal objections Jay, it would be a fair ground for an address to his majesty to advise the removal of such a person. But where, no personal objections are, or can be stated, one must hear it recommended with astonishment, that a class of officers who are admitted to be perfectly eligible to the privy council should not be allowed to discharge the functions of a privy counsellor—should, in fact, be excluded from the performance of duties which, on their admission to the privy council, they are sworn to perform. So much as to the reason of the question.—But, in point of fact, there is nothing in Our constitution that recognizes any such institution as a Cabinet council; and the house will recollect that this is an opinion which I expressed long since, upon an occasion to which every man must look back with regret (his majesty's last illness). The opinion which I then declared, I have always held, and still hold, that a Cabinet council is unknown to our law, and has in no instance whatever been recognized by parliament. That part of the privy council which his majesty thinks proper habitually to consult has, indeed, of late years, been denominated the Cabinet council. But names are of small account upon this question. Call this council what you will—either the ministers of state or the executive committee, still the law can know nothing of its members but as privy counsellors. But a few words as to the general principles. If the point were mooted, whether the appointment of a Cabinet council at all be not an abuse of the royal prerogative, I confess there would be much to say on both sides, and I should have great doubts which, course to take. However, it is undeniably a body which parliament has always declined to recognise; and their avoiding any such recognition has afforded some advantage to the gentlemen on the other side, of which they have very diligently availed themselves. As the existence of a Cabinet council has never been legally acknowledged, there is, of course, no legal record of the members comprising any Cabinet; and we have it not in our power to state any thing of authority upon the subject, but what may have come within our own observation, or may have been communicated to us by our fathers. Therefore, when the hon. gentlemen ask us to produce precedents, applying to the case before the house, we must answer that we have it not in our power to produce many, and they appear to doubt even the few we can offer. Some profess to think, that the case of lord Hardwicke's being in the Cabinet while chief justice of the King's Bench, is doubtful. Certainly there is no official authority to remove such doubts. It is stated by the right hon. gent. (Mr. Canning) that lord Mansfield was not known, at a certain time, to have been in the Oabinet, until it was confessed by that noble lord himself. Although the right hon. gent. was wrong in this particular instance, still his confession serves to sustain the proposition I have in view, as to the difficulty of adducing many precedents upon this subject. The right hon. gent. has frequently spoken of the Cabinet, as a responsible body; I wish that right hon. gent., or any gentleman who supports his opinion, to point out from what parts of our statutes, or of the recorded proceedings of this house, he has learned that the Cabinet, or any individual bebelonging it, has been, as such, held to be legally responsible. From newspapers and conversations abroad, the right hon. gent. has professed to obtain much information upon this topic. But, upon such an occasion, would it not be somewhat more correct to consult the statutes and the journals of this house, than such sources of knowledge as the right hon. gent. has quoted? When the right hon. gent. speaks of the responsibility of the Cabinet, I would recommend him to consider, whether it would be expedient to insist upon the attachment of responsibility to the whole of such a body, for every ministerial act; and whether such a measure might not be apt to endanger, if not in most instances to defeat, the object of responsibility? For any act done in my office, I am directly responsible to parliament and the country; and perhaps it is much better for any purpose of practical responsibility, that it should fall on one man, than on a body; for this obvious reason, that the difficulty of producing conviction and punishment is the less in one case. than in the other. I do not mean to say, that it is not desirable to bring forward the charges of guilt against all the advisers as well as the agent, if it were practicable to prove the charge. The immediate actor can always be got at in a way that is very plain, direct, and easy, compared to that by which you may be able to reach his advisers. There are to be seen many cases in which parliament have tried to get at the advisers too. But how have they tried to do so? Look at the mode, and that mode alone will sustain my argument, that the Cabinet counsellors are not legally known. For in the addresses presented upon such occasions as I have referred to, it will be found, that parliament apply to know by whom any measure to which the address alludes, may have been advised. Surely, then, such an application serves to shew, that the Cabinet has never been deemed a responsible body; for, if it were, such an application would be quite superfluous. But, don't confine your research to those addresses; look at the journals throughout. Examine the several articles of impeachment on record, and you can discover no instance of any man, or body of men, being impeached as Cabinet counsellors. Take the end of queen Anne's reign. See the articles of impeachment exhibited against the earl of Oxford for the conclusion of the peace of Utrecht. Lord Bolingbroke and Mr. Prior, who were the persons principally concerned in that transaction, being then out of the country, and beyond the reach of parliament, it was eagerly endeavoured to implicate lord Oxford. In prosecution of this object a variety of shifts and expedients were resorted to, which would have been totally unnecessary had the Cabinet council been considered a responsible body. No, in that case it would be all easy and smooth. But, in that case, it appears that not one word was mentioned which could countenance the idea of any recognition of a responsible Cabinet council. As yet, among the leaders of those who promoted the impeachment of lord Oxford, were many very able men, among others sir R. Walpole. I do not mention this statesman for the purpose of expressing my concurrence in the general censure which has so long attached to his character. On the contrary, I think that he experienced much undeserved obloquy, as well in the course of his life, as since his death. But I confess, that if I were to panegyrize that distinguished man, I should not rest my panegyric upon his scrupulous regard to the means by which he could reach his object, Particularly when stimulated by resentment. Another distinguished person se- conded sir Robert Walpole in this prosecution, and he certainly, however estimable in other respects, was by no means remarkable for moderation. And yet these active, able men, never, in their zeal to achieve their purpose, even hinted at that, the establishment of which would have so much facilitated their success, viz. the existence of a responsible Cabinet council.—From this, and from every other circumstance that applies, I infer that such a council was never legally conceived to exist. Therefore, the first time the hon. mover proposes to the house to recognize the existence of such a body, and if you do adopt his proposition, I would ask, do you mean to stop there? If you even do, I can assure you, that as far as nay influence can go, I will not allow you. For, if in any shape you acknowledge the existence of a Cabinet council, we must go on to make such a body not alone formally, but really known to the house and to the laws. The gentlemen who support the motion, may state, that it is not their object to go so far; but the consequence I have stated must naturally follow the adoption of their motion.—One word more before I quit this part of the subject. Some gentlemen may confound the functions of what is called the Cabinet council, and therefore it may be necessary to state a distinction, of which the noble lord (Castlereagh) must be aware. Councils frequently meet, which are assembled solely for the purpose of affording to the members an opportunity of consulting with each other, and stating their ideas reciprocally on points connected with their several departments, but with no intention of communicating the result to his majesty. Indeed upon many such points it would not only be unnecessary, but improper to communicate with his majesty. The noble lord (Castlereagh) knows to what I allude. On other occasions the Cabinet council meet to advise his majesty in person. In the former case of meeting, it will not surely be pretended that any responsibility can attach to the proceedings of this council, or that any individual minister can incur censure for consulting them, the aid of whose counsels may be useful and necessary. And to whom should responsibility attach in the latter description of meetings? To the agent, to be sure, who executes the plan resolved on. This I maintain, to be well founded. For if this committee of the privy council should order any project which did not meet my approbation, and against which I should consequently protest, still if the plan were exceptionable, my protest would not avail to acquit me of the responsibility that would arise from the execution of it. This I take to be the general rule with regard to ministerial responsibility; and every thing that has occurred different from this rule, I consider in the light of an exception.—In all the observations on the other side with regard to this subject, gentlemen appear altogether to overlook the privy council. They seem indeed to forget the existence Of that body; for in talking of objects of ambition they confine themselves to the Cabinet council. But pray is not a seat in the privy council an object of ambition also, and is not the circumstance of being struck off from that body a cause of disgrace? There may, to be sure, have been instances where such striking off produced no disgrace or mortification to the party concerned, but was felt rather as a source of pride. But yet, to say generally, that a seat in the privy council is not an object of ambition, and a removal from it the cause of mortification and disgrace, would be wholly absurd. Perhaps the desire of obtaining the seat is balanced by the fear of losing it, and this fear affords a guarantee for a privy counsellor's performance of his duty. These counsellors are known to the law, and it is known that if any one of them should advise his majesty, he is responsible for such advice, whether he belongs to what is called the Cabinet council or not.—Having said so much on the subject of responsibility, I shall now go into the other points connected with this question. With regard to theoretical principles, the name of Montesquieu has been adduced. For this writer, as a general political philosopher, I entertain the highest respect; but the application of his opinions to, or his clear comprehension of, the constitution of England, I am not disposed to admit. What Montesquieu chiefly insists upon, that has any relation to the point at issue, is this, that the legislative should be totally separate from the judicial legislative functions. But will any man attempt to apply this rule to the constitution of England? Will you separate the executive government altogether from the legislative? I hardly think that any proposition of that sort, is ever likely to be submitted to this house; and sure I am, that none such would, or ought to be adopted. But Montesquieu says, that the judicial ought to be separate from the legislative function. Do gentlemen mean to press the application of that doctrine to this country? No, they cannot, for the case of the lord chancellor immediately presents itself. Over this case, however, it has been attempted to pass, by the aid of a fine distinction. In order to favour the adoption of Montesquieu, and apply it to this question, it is maintained, that there is a material difference between a civil and a criminal judge.—The gentlemen who support the motion, not content with the theory of Montesquieu, which is not at all applicable to the constitution of this country, have had recourse to the authority of Blackstone, but being unable to find any theory exactly to answer the maintenance of their arguments, they have, I observe, endeavoured to pare down different theories, in order to suit their purpose: still however, they have failed. But with regard to Blackstone, I beg in the first instance to demur to his authority as a great constitutional writer. That the municipal law was laid down by him with uncommon perspicuity, and that he dilated upon it with great eloquence, I am ready to admit. His purity of style I particularly admire. He was distinguished as much for simplicity and strength as any writer in the English language. He was perfectly free from all gallicisms and ridiculous affectations, for which so many of our modern authors and orators are so remarkable. Upon this ground, therefore, I esteem judge Blackstone; but, as a constitutional writer, he is by no means an object of my esteem; and for this, among other reasons, that he asserts the latter years of the reign of Charles the second (I mean those which followed the enactment of the Habeas Corpus act) to have been the most constitutional period to be found in our history, not excepting any period that followed. Now, it would be inconsistent with all the principles which I have ever held, to regard such a writer as a constitutional authority, much less to look up to him as an oracle. However, the words quoted from this author by the gentleman on the other side are, I am prepared to say, quite misunderstood. When Blackstone says, that "a judge should not be a minister of state," he means the word minister in the English sense, and not in the German, Italian, or French sense. He means, of course, that a judge shall not administer the affairs of government. But that is quite a diffe- rent thing from the manner in which the gentlemen on the other side would have it understood or applied. The meaning of Blackstone, however, will appear to be palpably different from the construction of the honourable gentleman, when we look at the conduct pursued during those very latter years of the reign of Charles II. which formed the subject of his panegyric. It will be recollected that in the course of that period sir Wm. Temple introduced a bill for the appointment of a committee of privy counsellors, to consist of about 30 persons. This bill was shown to, and approved of by, lords Essex, Hollis, Cavendish, Russell, and all the best men of the day, and yet by this bill it was provided, that the chief justice of the common pleas should be a member of the proposed committee of council.—There is a case illustrative of the meaning of Blackstone, that recognizes a principle directly opposite to that which the gentlemen on the other side are anxious to establish; and brought forward by sir Wm. Temple, who was scandalized at the misconduct of that government which Blackstone panegyrized. But it is clear that Blackstone's meaning applied not to any thing like that which the gentlemen on the other side could infer. A judge belonging to the privy council, according to the sense which these gentlemen attach to the words of Blackstone, would incur blame; and yet they disavow any intention of blaming a judge upon that ground.—So far as to the principle of the appointment complained of. I shall now advert to the practice. I am told that there is only one instance stated on my side; namely, that of lord Hardwicke; and the gentlemen are so good as to give me the case of lord Eldon in addition. But it was stated that these noble lords held for a very short time only the offices of lord chief justice and members of the committee of council. But the shortness of the time was of little account. If the noble lords thought the retention of such offices was contrary to constitutional principle, they would not surely sanction by their own acts the violation of such a principle.—There was, however another case, that of lord Mansfield: that noble lord connected in his own person, from 1757, to 63, the two situations, the junction of which is now so much complained of. I do not mean to discuss the character of lord Mansfield, who, like many great men, had very good and very had qualities. but certainly the odium attached to it, did not proceed from his merely combining a seat in the Cabinet with the chief justiceship of the King's Bench. This combination, however, is said to have been much condemned by lord Shelburne, and to prove this, a speech of that noble lord has been quoted. I have looked at the quotation, and the words are, as reported, absolute nonsense, and therefore, I am persuaded, never were uttered by lord Shelburne. They import that no political man should have any thing to do with advising that which it belongs to his department to execute. Why, if this were a fair ground of censure, it would apply to myself and my colleagues beside me, who are every day advising, what we are ourselves to execute. To ascribe such an observation to lord Shelburne, is quite ridiculous. It must have been a misprint or some misconception, to which lord Shelburne who, like myself, spoke very quick, was extremely liable.—But, to return to lord Mansfield; it really surprised me to hear it remarked upon, as a new arid surprising article of intelligence, that that noble lord was so many years in the Cabinet, and that some gentlemen heard it this night for the first time. What, that lord Mansfield could have been so many years in the Cabinet with such different administrations, with lord Chatham, the duke of Newcastle, and Mr. Grenville, and all the time have kept snug in the corner and be unknown—preposterous supposition! these distinguished men not only knew that lord Mansfield was in the Cabinet, but they approved it. If they did not, it was not to be imagined that they would have allowed it. The gentlemen on time other side will hardly think that if I conceived the thing of which they complain to be a violation of constitutional principle I would be a party to it. Let them then give the same fair play to lord Chatham, the duke of Newcastle, and Mr. Grenville. With them also I recollect that other distinguished persons were connected in the same Cabinet; among others my father, and the father of the hon. gent. on the other side (Mr. Ryder); but they had not the same lights which the hon. mover would throw out to the present ministers. Had the hon. gent. been 20 years older he would, no doubt, have gone to lord Chatham, &c. and told them—"You are a parcel of old fools not to know, that in admitting lord Mansfield to the Cabinet, you are violating a constitutional principle and endangering the pure administration of justice, &c." (a laugh.) Whether these persons would have attended to the hon. gent.'s councils, or not, I rather think that he is not unhappy, he was unable to offer them, for I presume he has as little wish to be 20 years older as myself. As to the injury likely to result to the constitution, from the introduction of a chief justice into the Cabinet, I think the bill of the present reign, which establishes the independence of the judges, and which bears on the face of it the mark of having been the suggestion of lord Mansfield, is a sufficient answer to that apprehension.—But I now come to the specific objections made to a chief justice of the court of King's Bench sitting in the Cabinet., Now, the first relates to libels; but in reply to this, I shall only say, that I never heard of such a thing as the propriety of prosecuting for a libel being at all agitated in a Cabinet council; I never witnessed any thing of the kind, and I do not find from any of those who were in the Cabinet during the period when many prosecutions took place, that the subject of such prosecutions was ever discussed there. Sure I am, that no such discussion ought to take place there. The consideration of questions of that nature properly belonged to the office of the secretary for the home department, with whom it rested to give orders to the attorney general to prosecute.—But, the case of treason has been alluded to. Upon, however, questions of this kind, lord Ellenborough is as liable to be summoned to attend the Cabinet as privy counsellor, as he is in his present situation. But, I contend, that he is likely to he seriously prepossessed by such previous examination as the magistrates are, who commit prisoners, or as the judges of the King's Bench are, when they grant an information upon the affidavit of one of the parties, without sending the charge to the grand juries. I have, however, no hesitation in saying, that when a subject of high treason comes on for discussion in the Cabinet, which may be afterwards brought to trial in the court of King's Bench, the absence of the noble lord who is the subject of this debate from any such discussion would be most becoming. I should certainly feel it right to absent myself upon such an occasion, if in the circumstances of the noble lord. But, how many are the subjects connected with war and peace, with our commerce and finances, upon which a lord chief jus- tice may be consulted without exciting the slightest jealousy or objection? On these points, however, it is said, you must not consult him, because if you do, you make him a politician; and pray do gentlemen forget, that by the very oath of a privy counsellor, the chief justice binds himself to give such advice? If, however, you interdict him, as the advocates of the motion propose, what do you mean to do with him? We have heard of the dinner placed before Sancho Panca: if he wished for fish, that was objected to; and if he wished for meat, an objection was started also; so, between the objections, poor Sancho had no dinner at all. Just in a similar manner do the friends of the motion propose to deal with lord Ellenborough. The noble lord is made a privy counsellor, but yet he is not to be consulted upon points of law, lest his mind as a judge should be prepossessed; nor is he to be consulted on points of state, lest he should be made a politician. Thus it was proposed to destroy his functions as a privy counsellor altogether.—The right hon. gent. returned to the subject of the illegal incompatibility of the judicial and legislative functions, and asserted that such incompatibility was never known to have been rigidly and altogether insisted on, but in two instances; the first of which, that which took place under the second government, after the commencement of the revolution in France; and the second instance was with regard to Turkey, and upon this he had read no law but in the Arabian Nights, and other such works (a laugh); according to which it appeared, that the bashaw and the cadi must always be separate.—Adverting to the statutes which applied to this question, the right hon. gentleman quoted the acts of regency adopted on the proposition of lord chief justice Holt, in the reign of queen Anne, and that also in the early part of his present majesty's reign. By both these acts, he stated that a council to assist the regent was appointed, and it was expressly provided that the lord chief justice of the King's Bench should be one of the council. Now, it must be evident that in such situation the chief justice would have to perform the same functions as lord Ellenborough would be now called on to execute. It appeared, in fact, that the present Cabinet was formed merely on the model laid down for the councils of regency mentioned in those celebrated acts. The last act, he observed, was supported by the vote of Blackstone, who on this night was quoted as adverse to its principle. After recapitulating and ably inforcing his Several arguments, the right hon. gent. insisted that the proposition before the house was supported neither by precedent, law, argument or expediency; he took notice of the observation of the statement of the mover, that the motion was not brought forward as an opposition question. He assured the hon. mover and his supporters that he was not at all willing to court or provoke opposition to his measures. On the contrary, he should be glad of the support of any set of gentlemen; but, if he were to have an opposition, he particularly wished that they might always chuse such questions as that now before the house.

Lord Castlereagh rose

and spoke as follows:—Sir; notwithstanding the triumphant tone in which the right hon. gent. has concluded his speech, and the ability which has pervaded every part of it, the objections which I have from the first felt to the measure, the propriety of which is now brought under the consideration of the house, remain undiminished. Upon a question of such constitutional importance, it is satisfactory to observe the temper and moderation with which the argument has been conducted. No subject could have a stronger claim to be discussed upon its own merits unmixed with party feelings, and it is only to be lamented that the reluctance felt by many of those who most condemn the introduction of lord Ellenborough to the Cabinet, to assume even on a single point the appearance of opposition to the new administration before it has received a fair trial, is likely to prevent the sense of parliament from being taken as fully and fairly upon this measure as the importance of it seems to require.—In stating my sentiments upon the question, I should wish to examine how far the practice of introducing a common law Judge, and more especially a Chief Justice into the Cabinet, can be justified upon the ground of direct precedent, or even of analogy drawn from their habitual introduction into other branches of the constitution.—And first, as to those parliamentary precedents which may be considered as of higher authority than the practice of any individual, however eminent or respectable: this part of the argument rests upon the three regency acts of 1705, 1751, and 1765, in all of which the name of the Chief Justice of the King's Bench is introduced into the council of regency. It must be admitted, that these acts give some degree of countenance to the introduction of the Chief Justice into a situation of political trust, connected with the administration of the executive government.—But, when the right hon. gent. assumes the Regency Council which was a fixed body, not removeable by the regent, and composed of other persons besides the executive officers of the crown, (the princes of the blood royal for instance, and the archbishop of Canterbury) to be similar to the Cabinet, either in its constitution or in its functions, he assumes more than the obvious nature of that council will warrant.—It is also to be observed, that the authority of acts of parliament on points collateral and incidental to the main object of the act, more especially when no question arose at the time in respect to such points, are entitled comparatively to but little attention. The general policy of these bills was, it is true, fully discussed, but no question was separately made upon the propriety of including the Chief Justice. His nomination passed in silence. It was proposed in discussions on the act of 1705, to exclude from the council lord Godolphin, then at the head of the treasury, the objection in this instance was evidently levelled at the individual and not at the office, and the proposition was over-ruled, as was another to include the lord mayor of London.—With these exceptions, the propriety of the official selections was little canvassed; but if the Chief Justice's name had even been introduced into those bills on the most mature deliberation, it would by no means follow that the same reasons must justify the introduction of that Magistrate into the Cabinet, which might properly induce the legislature to give him a place in a permanent council of the nature alluded to, a council entrusted, during the minority or absence of the sovereign, with the exercise as well as with the conservation of the rights and property of the crown.—It is also to be observed, except during the short period of about five weeks, which elapsed between the death of queen Anne and the arrival of George the First in England, that none of these acts were ever acted upon. No experience, therefore, could be had of their practical inconvenience in this or any other instance; but, the most superficial consideration of them will be sufficient to satisfy any candid mind, that their frame and constitution is wholly inapplicable to the present times. Their authority, as precedents in the debates on the regency in 1788, was generally condemned, and by no individual with more ability or effect than by the noble lord now at the head of his majesty's councils.—when he filled the chair of this house.—We have, however, a class of precedents entitled to more consideration, namely, those commissions proceeding immediately from the crown. which vested in certain persons under the title of Custodes Regni, removeable at pleasure, and bearing, in that particular, a closer resemblance to the members of the Cabinet, such powers as are necessary for carrying on the executive government in the absence of the king.. Of these, there are upwards of twenty which occur between the revolution and the year 1755. But in none does the name of the Chief Justice appear. The Functions of the Custodes Regni being exercised under the direction of the sovereign, and upon communication with him, the same precautions were not requisite for the security of the rights of the crown, which were necessary while the king was minor; and this observation may explain, why such characters as the Archbishop of Canterbury, and the Chief Justice Of the King's Bench were introduced into the parliamentary councils of regency, whilst they were excluded from those immediately appointed by tire crown.—The single correct precedent of modern times on which any argument can be founded, is that of lord Mansfield; and, in referring to that solitary case, it is fair to consider it as deriving a sanction not only from the evidence it affords of the noble lord's own opinion on the subject, but from the acquiescence of those who either sat with him in the Cabinet, or suffered him to sit there unquestioned in parliament.—I consider the case of lord Mansfield, as the only one really in point: that of lord Hardwicke being clearly inapplicable, inasmuch as he never had a seat in the Cabinet till he had accepted the Seals, and only held the chief justiceship for a few months, till his successor Chief Justice Lee was appointed. He had then ceased to act as Chief Justice, and had taken upon him the character and all the Functions of chancellor, political as well judicial.—It might well he contended that the weight of precedent, were it stronger than it is, would only go to render it more necessary to correct the practice if it be inexpedient, as I maintain it to be. The countenance which this measure may derive from precedent, may render less censurable those by whom it has been advised or adopted: but, perseverance in a bad practice cannot be justified on any such ground.—I own, however, that the precedent of lord Mansfield appears to me calculated rather to serve as a beacon, to warn his successors what they should avoid, than to operate as au encouragement to them to follow his example. No Judge of more comprehensive knowledge, or of more splendid talents, ever sat upon the Bench, yet no one ever possessed in a less degree the confidence of the public. He was regarded with jealousy, (perhaps unjustly so) as carrying his political feelings with him into court, and was never able to conquer the effects of having so intimately connected himself with the politics aid the party of the day. There is every real son to believe, that lord Mansfield was himself deeply impressed with the sense of his own indiscretion, in having become a member of the Cabinet. He certainly declined to return to it after the year 1765, and is said to have lamented to the last hour of his life, that he had ever suffered himself to be placed in this anomalous and hazardous predicament.—The arguments drawn by analogy from the circumstance of chief Justices being habitually members of the house of peers and of the privy council, will prove nothing in support of their being called to the Cabinet upon ordinary occasions, if the purposes for which they are placed in those situations are fairly considered. The house of lords being a Judicial body and a court of appeal, necessarily requires the presence of legal characters, to conduct a jurisdiction Which in practice devolves entirely on them, and no persons can be so fit to be entrusted with this task, as the chief Judges, and superior members of the professions without whose aid the whole direction of the house on legal subjects would devolve on the chancellor for the time being: a circumstance by no means to be desired.—So introduced into the legislature, they are certainly not precluded by any law from entering into all the heat of politics: but it is equally certain, that in so doing they would forfeit much of the respect and reverence, which is now paid to them, and it would be justly imputed to them as an impro- priety of conduct, not considered as the necessary effect of their being admitted into the house of peers, if they should use the privileges of the peerage in a manner inconsistent with the dignity of the judicial character.—The same reasoning applies to the privy council; the greater part of the business which comes before that council is of a judicial nature; and it is therefore necessary that persons of legal knowledge and experience should habitually attend on that body. Every privy counsellor is of course bound to afford his advice to his sovereign on all subjects upon which his majesty may think tit to call for it. On many points usually discussed in the Cabinet, and not in the council at large, the assistance of the chief judges may be highly necessary, and to such occasional recurrence to them for advice we do not object. But, it does not follow from the right of the king, to call upon every individual privy counsellor for advice as often as he shall see occasion, and from the obligation imposed upon such privy counsellor by his oath to advise when called upon, that it is an expedient or a constitutional exercise of the prerogative to summon a person exercising judicial functions, who is made a privy counsellor in order that he may be resorted to for occasional assistance on subjects of a special nature, to all the secret deliberations on state affairs, without any consideration of the purposes for which he was chiefly invested with the character of a privy counsellor: and it cannot, therefore, be contended, that the circumstance of a chief justice being a member of the privy council, proves the fitness or propriety of his having a seat in the Cabinet.—The inconveniences that may arise from his being a permanent member of the government, are many and obvious. many cases are likely to come before him judicially of a description which must compel him either to abdicate his functions on the bench, and to leave to others the discharge of a duty which it belongs to himself to perform, or he must act under all the suspicion, and be exposed to all the jealousy which attaches to a party interested in the cause. Libels en the government of which he forms a part; prosecutions against a colleague for malversation; trials for state offences, or questions connected with the construction of statutes in which the administration of the day take an interest, must all place a political chief justice in a difficult dilemma; he must either deprive the country of the advantage of having justice administered by the highest authority, or subject it to the more serious inconvenience of having it dispensed by a person who is necessarily open to vulgar, if not to rational suspicion.—But it is said by the right hon. gent. if a chief justice may not habitually advise his majesty on state affairs, why make him a privy counsellor, and how did it happen that chief baron Eyre tried the prisoners for treason, on whose case he had previously decided in council? The first point has been already replied to; the latter will not appear to furnish the right hon. gentleman with any ground of argument, if the nature of the proceeding be fairly considered. Chief Justice Eyre was not called to the Cabinet to mix himself in politics, to connect himself with the administration of the day, or to exercise any political discretion whatever. He was summoned to the privy council at large as a magistrate; in that capacity alone he acted; his duty there was to hear the evidence against the prisoners, to decide whether it was sufficient to warrant a committal, and for what crime. His duty was in no respect distinguishable front that of an ordinary magistrate when a charge is brought before him. It never has been contended that a justice of peace by committing a prisoner stood disqualified from determining on the charge as a grand juror, or of sitting on the bench as a Judge. No reasonable objection can therefore be taken to the conduct of the chief baron. But if he had consulted in Cabinet on the political expediency of bringing those persons to trial, if he had engaged in all the councils of government of that particular period, and had stored his mind with all the secret information which he would probably have found there, bearing more or less on the cases of those prisoners, it would be monstrous to contend that under these circumstances, and with a mind so prepared, he could with propriety have been sent to sit in judgment upon the parties accused. For these reasons, the practice of introducing a chief Justice of the King's Bench into Cabinet as an habitual adviser of the measures of the executive government, appears to me to derive no countenance whatever from any analogy to be drawn from the introduction of that magistrate into the house of lords and privy council; as little can it be supported by the circumstance of the lord chancellor's being al- ways a cabinet minister, though filling a judicial situation. In the first place, the chancellor is ex officio an executive officer of state measures. All treaties or instruments with respect to our foreign relations, all grants at home, are sealed by him under his personal responsibility: it seems therefore indispensable, that he should be a party to the councils of the government; but, except on trials before the peers, he exercises no criminal jurisdiction. He holds his office during pleasure; his political functions are not less prominent than his judicial duties: his existence in both capacities depends, like that of any other member of the executive government, upon the fate of the administration of the day. It is true, that he is charged with judicial functions of the highest nature, but they relate not to the life or liberty of the subject; they are of a description much less likely to be exercised, or (which is not less material to the present question) to be suspected of being exercised under any political bias, than those of the chief justice. Decisions on property seldom attract the attention, or rouse the feelings of the public. The struggles of party have no connection with civil suits. The chancellor could but little serve the purposes of his party or gratify his political resentments by unjust decisions in his court. Besides, the suitor has always an option of carrying his cause in the first instance before the Master of the Rolls, a judicial officer holding his situation, like any other judge, during good behaviour; and there is always an appeal open to the party from the decision of the chancellor to the house of lords.—In the exercise of a criminal jurisdiction there is a wide difference. In such courts, cases continually arise, which call forth the passions of the people. The judge who presides on such occasions, can no otherwise hope to command the respect and confidence of the public, than by standing unconnected with the questions which conic before him, and totally uninterested in the event of the proceedings. But exclusive of the effects of this measure upon the character of a common law judge; should such a judge unfortunately be inclined to carry his party feelings and resentments with him to the bench, he certainly can apply them to purposes of oppression with much less controul in criminal than in civil cases. A right hon. and Learned gent. (Mr. Bond) says, What has the chief justice in such cases to do, but to declare the law, possibly aided by soma of his brethren, the jury deciding on the fact? But, independently of the influence which the summing up of the judge must necessarily have upon the verdict, the right hon. gent. forgets, that to him exclusively belongs the determination of the quantum of punishment in cases where it is discretionary: and as in the infliction of line and imprisonment there is seldom any precise standard or any fixed principles to resort to, it is obvious that in no exercise of the judicial authority may abuse more easily prevail or (which is hardly less mischievous) will it be inure readily imputed.—The case of commissioners of the great seal, if not decisive on this subject, must at least be admitted strongly to mark the unwillingness which has prevailed to introduce common law judges into the Cabinet. Notwithstanding the expediency of having legal assistance there, and the reasonableness (as already stated) of allowing those who seal and execute acts of state to take a part in the previous deliberation, when the seals have been put into commission, none of the persons to whom they have been committed, not even the first commissioner, appear to have ever sat in the Cabinet. Lord Loughborough during the administration commonly known by the name of the Coalition Administration, was not a Cabinet minister, although so highly distinguished for public talents; a circumstance which carries with it a strong presumption that common law judges, until they were understood virtually, if not actually, to have retired, were not considered as proper persons to be connected with politics, by being regularly summoned to such a council.—Being unable to sustain his argument either on the ground of precedent or analogy, the right hon. gent. (Mr. Fox) endeavours at once to get rid of the motion, by assuming that there is no such body known to the law or constitution, as a Cabinet council; that responsibility cannot attach to the individuals composing such a body, and that the constitution knows no responsibility except in those executive officers of the crown, who in their respective departments carry the king's orders into execution. However it may suit the purposes of his present argument, I apprehend the right hon. gent. would have been very little disposed, when he was himself out of office, to listen with patience to such a statement from any minister of the crown. What would he have said if my late right hon. friend (Mr. Pitt) had disclaimed all responsibility on account of the late confederacy on the Continent, referring his opponents to my noble friend in another house (lord Mulgrave) as being alone responsible for all such measures, with the addition perhaps of the lord chancellor who affixed the great seal to the treaties? Would any minister have availed himself of so contemptible a subterfuge? or would the house have endured such a doctrine? Is not the Cabinet, in the modern practice of the constitution, as well known to parliament as if the existence of such a council had been an object of express legislative provision? have not the members of the Cabinet been always considered by the country, and have they not always considered themselves, whatever may have beer their offices, or even if they sat then without office, both as individually and collectively responsible for the measure of government? It may frequently be more difficult to establish the fact of participation in the guilt of any criminal measure against the minister who has only advised, than it Would be to prove it against the minister who has executed a measure, no other evidence being required in the latter case, than the order or instrument by which the criminal act has been either directed or performed. But the greater or less degree of difficulty which may attend the proofs of the fact, in particular instances, cannot affect the general question of responsibility. When the commons impeached lord Somers, lord Halifax, and lord Oxford, on account of the Partition Treaty, neither the lord Treasurer, lord Halifax, nor lord Oxford, who presided at the Admiralty, could in the right hon. gent.'s sense of responsibility be deemed responsible; yet the house of commons never hesitated to consider them as equally answerable for that measure with their colleagues in the government. The right hon. gent. has admitted that any privy counsellor is liable to answer for the advice which he may give to the crown; but be cannot by such admission exempt those privy counsellors who are avowedly selected, habitually to advise his majesty on the current affairs of his government, from that general responsibility which results of course from their being charged with the duty of giving that advice constantly and systematically, which other privy counsellors are in the habit of giving only oc- casionally, if at all. Independently, however, of the application of the right hon. gent.'s argument to the present question it of no small importance that the country at large, and that Europe should be informed, whether the Cabinet council generally, with the noble lord (Grenville) at its head, is to be considered as responsible for all the measures of government, or whether those alone Who carry into execution the respective acts are answerable? It is right that it should be distinctly understood, whether the only security we have for the administration of foreign affairs on wise and sound principles is the right hon. gent. himself; whether the military system of the country is exclusively committed to the separate responsibility of the secretary of state for the war department, and whether the first lord of the treasury's responsibility is in the present administration, to be really viewed upon all questions not immediately relating to his own immediate department, in no other light than in that of an ordinary privy counsellor? If the right hon. gent. has failed in divesting lord Ellenborough of the responsible character of a minister, summoned as he is acknowledged to be habitually, and not occasionally, to the deliberations of the Cabinet; it he has failed to disprove the obvious inconveniences, to say the least of such an union of incompatible functions, in the same person, which must perpetually compel him to abandon his duty either as a Minister or as a Judge; if he has failed to produce either from precedent or analogy any adequate arguments to sustain a practice so obviously injurious; as little has he succeeded in establishing any sufficient ground either of expediency or necessity to justify, in the instance immediately before us, the adoption of a measure, which is open on general principles to the strongest objection. And first, as to the necessity of it. Admitting, which I am perfectly ready to do, the personal qualifications of the individual for such a confidential trust, will the right hon. gent. contend, that without recurring to the King's Bench, it was impossible for them to form their government? Will he maintain that at least, adequate qualifications for the Cabinet might not have been found in some other quarter? I am certainly not one of those who have discovered that the present administration comprehends all the talents, all the experience, all the respectability, or all the virtue of the country. But, would it not, on the other hand, be to disparage them unjustly, to suppose that this comprehensive Union of Parties, did not in the whole extent of the various connective of which it consists, afford the means of supplying lord Ellenborough's place, leaving him at liberty to pursue the duties of his own high situation? Can the right hon. gent. in justice to his own chancellor assert, that without the introduction of lord Ellenborough, the Cabinet would hay been destitute of adequate legal abilities? Will he contend that the addition of the learned lord's political and constitutional knowledge was absolutely requisite to the Constitution of the government? To the sound constitutional principles of the noble and learned lord, I beg to be amongst the first to bear testimony; his presence in the Cabinet is certainly a circumstance which creates confidence and not distrust on my mind; and were he there without prejudice to what I must deem duties of Superior importance, I should rejoice at his appointment. But, I cannot persuade myself that his place might not have been supplied by others equally entitled on general constitutional grounds to my confidence, who appear to have been unaccountably excluded, whilst his lordship has been most unnecessarily included in bread of constitutional policy, if not of law.—If the appointment is pot sustainable on the grounds of necessity, it appears still less Capable of being supported on considerations of Policy and Expediency,—Can the right hon. gent. contemplate the judicial system of the country; can he advert to the wise principles upon which it has been framed and improved; the care that has been taken to render the situation of a judge not only independent of every influence and especially of that of the crown, but to consider them as a distinct order in the community, to which the nation might look up with unlimited confidence as solely and entirely devoted to the administration of justice, and removed from the political cabals or party struggles of the times Can he thus contemplate the dignified and useful situation of a judge acting within his proper sphere, and deem it either of slight importance or of little danger to call upon a chief justice, to descend from such an eminence for the purpose of involving himself in all the confusion and vicissitudes of political life? What estimate the right hon. gent. is prepared at this moment to form of the confidence or popularity which attaches to the present administration, it is not for me to surmise. But, whether he is disposed to feel more or less sanguinely upon this point, I am sure he has known too much of political life, to take for granted, that it may not in progress of time, and perhaps at no very distant period, become not only unpopular but odious. Why, then, in the eyes of the nation, are the character and influence of our First Criminal Judge, in short all his best means of doing good, to be unnecessarily embarked in the frail and uncertain fate of this or any administration? Why is he to be thus exposed to all the jealousy, to all the hatred, to all the reproaches (frequently most unjust), which those in high political stations ore doomed to suffer? As long as he remains on the bench of justice, abstracted from such struggles, whatever errors he may commit, however he may find himself compelled to act in opposition to the popular feeling, his conduct will be regarded with confidence, and even his mistakes will be respected. All parties will concur in upholding him. But, let him once assume the character of a party man and a politician, let him once embark in the same bottom with the administration of the day, and he is immediately exposed to all the rancour, to all the fair censure, to all the illiberal and unjust reproach to which governments are liable. These popular prejudices will pursuit him into the courts of justice, and he will there find suspicion and crimination substituted for that confidence and reverence which attended on him while he was only a judge.—That the objection of Influence cannot he dismissed from this case, will be obvious when we consider the high value attached by all men to a seat in the Cabinet. The right hon. gent. has argued as if, because a chief judge is usually a privy counsellor, and because a seat at that board is a situation which most men are desirous of obtaining, and which they are unwilling to he deprived of, it must therefore follow, that the objection on the score of influence would not be strengthened by the introduction of a judge from the privy council into the Cabinet. But surely it cannot be contended, that the degrees of influence arising from the two situations are in any respect to be compared to each other. Can an ordinary seat at the privy council, which does not necessarily give, or in its consequences lead to, any political confidence, and from which no one is ever removed except for misconduct, bear any comparison with the situation of a person included among those members of the council to whom his majesty intrusts the general administration of his affairs, and who, for the time, are collectively charged with the trust of advising him upon every act of his government? Looking at the spirit of those wise and salutary provisions which were brought to perfection upon the gracious suggestion of his present majesty, and admitting the fair distinction that has been taken between honorary situations and those attended with emolument, can we doubt that a seat in the Cabinet (though unaccompanied with salary) furnishes, with respect to nine ten in ten, more substantive means of influence than any office in the state, however lucrative, to which a similar mark of confidence does not attach? I must therefore maintain, even upon this ground, that the appointment of lord Ellenborough to a seat in the Cabinet is a departure from the spirit, if not from the letter of those laws, by which the legislature has endeavoured to prevent the crown, that is, the minister of the day, from exercising any influence whatever over the Judges of the land.—Upon the whole, I consider the removal of the chief justice bf the King's Bench from his natural and proper functions for the purpose of converting bun into the mixed character of judge and politician, and of making him necessarily a member of a party, to be a most unwise and, if persevered in, a most unjustifiable proceeding; that it is in the present instance to be defended on no grounds of necessity or even of apparent political expediency; that it is a practice not to be supported by any analogy known to the constitution; that the only instances from statute, which can be argued in any degree to countenance it, are of imperfect authority in themselves, and are cases of a special nature standing upon their own grounds, rather forming exceptions, than tending to establish a general rule; and that the only direct. precedent, namely, that of lord Mansfield, amounts, when it is considered with all its circumstances and consequences, to a condemnation of the practice. I deprecate the measure as calculated to raise a feeling, with respect to the judicial system of the country, which perhaps, with the exception of the period when lord Mansfield presided on the bench, has never, at least in modern times, been known to exist. In all the difficulties and dangers to which the establishments of the country have been exposed, the purity of the administration of justice has never been made a matter of question. The bitterest enemies of the constitution have never ventured to utter even a suspicion against it. It is that part of our system, which, in the eyes of every foreign nation, most exalts and distinguishes the country. It is that, the value of which is most felt at home, and is calculated, from the universal sense of its approach to perfection, and the attachment which it commands, to protect and preserve the whole.—Will, then, the right hon. gent. for purposes of party or personal convenience, venture to break in upon such a system? Can he pretend to say that its existence does not, above all other circumstances, depend on the independence of the judges? or could he point out any mode by which it is more likely seriously to be brought into disrepute and suspicion, than by making the judges politicians, and by replacing them in any degree under the influence of the crown? I am satisfied that public opinion never was more decided on any question than on the present. Whatever may be the result of the present discussion, the more the subject is examined, the less disposition there will be, I trust, to persevere in it now, or to venture to recur to it at a future day. On these grounds I have felt it my duty to state fully my sentiments on the question, and I cannot conclude without expressing to the right hon. gent. my conviction, that he will find no reason to felicitate himself upon the part he has taken on the present occasion, that in proportion as the subject is canvassed and understood, the deliberate judgment of the public will be against him; and I think I may venture to assure him, whatever political sins either past or future he may have to answer for to his country, that for none will he find them less disposed to forgive him, than for thus lending himself to a measure, the tendency of which is to break down the principles upon which the pure administration of public justice, and consequently the liberties of the British nation, preeminently depend.

Lord Henry Petty

said, he should not have troubled the house after the able speech of his right hon, friend, had it not been for the allusion to himself. His lordship said, that the correctness of the pub- lication quoted by the right hon. gent. (Mr. Canning) might, for various reasons, be disputed; particularly in giving an account of sentiments where, in order to do justice to them, it was necessary to preserve the very words. It was impossible that his noble and revered relation, could be ignorant that lord Mansfield had been a member of the Cabinet, because, in point of fact, his noble relation had, in the year 1763, when in the board of trade, been frequently summoned to Cabinet councils at which lord Mansfield sat. That could be no discovery in the year 1775; and if he knew it, he could not have considered it unconstitutional, without, at the same time, expressing that opinion which lord Chatham and others, had they thought so, would likewise, in all probability, have done. His lordship contended, that, what was now denounced as unconstitutional in a judge, had been done in 1795, when, on a person who turned out to be a maniac, attacking the king, lord Kenyon had been summoned to the Cabinet council, to be present at the examination of the man, at whose trial he afterwards presided. He contended that the measure was consistent with precedent, with principle, and with practice, and he illustrated his sentiments by an examination of some of the precedents quoted. He concluded with saying, that if the arguments used on the other side were well founded, it would be proper in government to bring in a bill to disqualify the chief justice of the King's Bench from giving advice to his majesty, to disable the judges of the admiralty, who tried prize-causes, from sitting at the council board, when prize instructions were prepared, or sitting at the cockpit, where appeals were heard; and this system of disqualification might be applied to most of the great officers of the crown.

Mr. Perceval

said, that notwithstanding the extraordinary display of ability exhibited by the right hon. gent. (Mr. Fox) the question stood exactly where it did. The public sentiment, which he had taken much pains to ascertain, was, that the measure was dangerous, unconstitutional, and alarming; and he was sure that the discussion would extend that opinion, which among all classes and parties, even among the friends of the ministry, was universal. The common sense of the matter was this, that the functions of a chief justice of the King's Bench, and a member of Cabinet, were incompatible; and it was even admitted by the right hon. gent. (Mr. Bond), that in particular cases the one must be thrown off, that the other might be retained. If any man could execute both functions without inconvenience and reproach, it was his noble and learned friend, lord Ellenborough. But the incompatibility was manifest. Not only in the case of libels would the lord chief justice be reduced to the necessity of foregoing his duties, or standing exposed either to the suspicion of severity, in punishing the person by whom he was attacked, in common with his colleagues. He might even fall into the error of an honourable mind, in going to excess of lenity to avoid the suspicion which his situation would give him. A judge, too, might be called upon to decide in law, such as embargoes, &c. measures originating in the Cabinet, not in the privy council, though passing there; and could a judge be perfectly impartial in considering what damages ought to be given to a party claiming them, in consequence of an act of government which he had advised? Would the public, in troublesome times, such as, some years since, existed, when prosecutions were frequent against seditious persons, be satisfied of the purity of that justice administered by a judge, the colleague of the Cabinet ministers, who thought prosecutions necessary? It was evident how much the character of our public justice would suffer; how much the character of a judge would be degraded, from being confounded with the party politics of the day. He did not say that the measure was illegal, but he contended it was highly inexpedient. He alluded to the case of Despard, and asked how the judge, who as a cabinet minister had addressed the court, could have tried an action for false imprisonment, had one been brought, as might have been in that case, had not the very circumstances attending the event furnished the proof which otherwise would have been defective? He alluded to his own opinion on the volunteer question; and asked how a judge, a member of the Cabinet, who adopted that opinion, could have satisfactorily tried the question? In a word, judges ought to be as impartial between the executive government and the party in all public prosecutions, as between individuals in common cases. He then went over the different precedents, and contended that the only one which applied directly, (that of lord Mansfield,) ought to discourage a repetition of the attempt. It was impos- sible to say what part the fight hon. gent. (Mr. Fox) would have acted, had this measure been resorted to by a ministry he opposed: but, if he was serious in his attachment to liberty, of which "all over the world," he was an affectionate toaster, it was natural to think he would have opposed a thing so inconsistent with the true principles of freedom. He Was satisfied, that if ministers did not now see the impropriety of the measure, they soon would be Convinced by the disapprobation of the Country. He rather thought they doubted its propriety, but were too obstinate to confess their error. They would find, however, that it would have been better to lave given up file point when its danger was first exposed; than to have waited till the discussion rendered it more odious all over the country. He concluded with Saying, that the first error, considering the authorities and examples, was venial; but, to persevere would be a crime, because without the least necessity the measure risked that which Was so dear and so important to the country, the pure and the unsuspected administration of justice.

Mr. Sheridan ,

said, he was not a little surprised at the language of the hon. and learned gent. who spoke last. He seemed to condemn the Conduct of ministers, because, the moment notice was given of the present motion, modesty had not induced them to accede to the object of it without rendering a discussion necessary. The late Minister, with whom that hon. and learned gent. had acted, had not certainly often shewn this excess of modesty, and at leas his right hon. friend near him (Mr. Fox) had not the advantage of any such example from their immediate predecessors in office. He did not, however, wonder, that the hon. and learned gent. wished to avoid the debate; in this respect, his discretion was commendable; for he had been able to support his favourite position by such frivolous arguments, that its weakness was completely exposed. But the hon. and learned gent. said, he had used the greater industry to collect the public sentiment, and the opinions given, from all descriptions of persons were uniformly against the appointment of lord Ellenborough to a seat in the Cabinet. There were two ways of asking questions; the one to gratify innocent curiosity, the other to excite mischievous suspicions: what was the design of the hon. and learned gent. in his enquiries, he would not presume to determine.—Some remarks had been made on the new opposition; he, for one, did not-deprecate their exertions: whether it were an attachment he felt to the old benches, or whatever was the cause, he did not know; but certain it was, he did not wish to see them hastily abandoned by their present occupants; he certainly thought every administration the better for an opposition, even that of his right hon. friend (Mr. Fox) with all his partiality for him. He hoped the new opposition would be vigilant, and even wished that they Might be over-zealous, or any thing but over-numerous. He could endure the language of impatience from the hon. gentlemen in their altered predicament: one of them had lost a warm naval cloak (Mr. Canning); another, a splendid India shawl (lord Castlereagh); and a third, a graceful professional robe (Mr. Perceval); and it was natural to expect, they would feel a little the chill of disappointment. The hon. and learned gent. said, that lord Mansfield was a warning to every chief justice in future, on account of the distress he suffered from his folly in accepting a seat in the Cabinet. Lord Mansfield went out of office in 1760, for the best reason in the world, because he was turned out. In 1765, he again came into office, and soon afterwards went out for the same good reason, which he might assign in common with the hon. gentlemen opposite, because he could stay in no longer; thus it was the most shocking thing that the chief justice should know any particulars of a charge before it appeared on an indictment in court. Did not the hon. and learned gent. remember, very recently, in our history, that the chief justice of the common pleas, sir James Eyre, attended in the Cabinet, in the complicated case of high treason, charged against Mr. Hardy and others; and after being so consulted; that learned judge was put at the head of the commission, although by his advice they were accused and brought to trial? The nature of the situation of a chief justice rendered him a political, as well as a judicial character. Would not every man in the kingdom be surprised, if he were told that a late attorney-general had refused the office of chief justice, because he had mixed himself too much in state affairs? but it would appear yet more extraordinary, if a gentleman in that situation, not feeling such a repugnance to the high office, should support with so much energy the separation of the judicial character. These hints were rather thrown out for the private reflection of the hon. and learned gent. than for the general attention of the house. The principle contended from on the other side of the house, if right, ought to be carried to its full extent; and a chief justice ought neither to be a privy counsellor nor a peer of parliament. Was this high officer to be placed in a state of monastic seclusion, lest, by meddling with the affairs of the world, the purity of his habits should be violated? As early as the time of Edward III. conservators of the realm were appointed, and the chief justice was one of the four nominated. The constitution on various important occasions seemed to look to the chief justice as to the rock on which the national security should be founded. With regard to the inconvenience which was supposed might arise from the responsibility of the chief justice, in his political character, as a cabinet minister; he had no such liability, and therefore no such disadvantage could accrue. The right hon. gent. concluded with expressing his concern at sustaining with so little propriety and dignity his new character; and the house would excuse him, if, with such short notice, he had not learned his part.

Mr. Wilberforce

began by observing, that he should speak with great seriousness on a topic on which the right hon. gent. who had just sat down, had touched with his usual jocoseness; and declared that it gave him real pain to be under the necessity of taking a part that night, which might perhaps be construed into a disposition to oppose the new government. To enter into systematic opposition as a party man, was contrary alike to his principles and his feelings, and he could sincerely assure his majesty's ministers that he wished to support them, and that it would give him pleasure if their measures should be such as to enable him to gratify this inclination. But the present occasion was one on which he felt it his indispensable duty to support the motion of his hon. friend below him (Mr. Stanhope); and he must say, that notwithstanding his admiration of the uncommon talents which had been exhibited by the right hon. gent. opposite to him (Mr. Fox), who had also been very ably supported by the noble lord (lord Henry Petty) the real strength, the plain common sense of the question remained utterly unshaken, and it would be impossible for any considerate man to deny, that the appointment of the first criminal Judge to a place in his majesty's executive government was, though not absolutely illegal, yet most undeniably unconstitutional, and such as tended to impair and ultimately to destroy that peculiar excellency which had been the chief glory of our whole political system, which had called forth most warmly the admiration of writers in their closets, and had been the means of conveying security and comfort to the inhabitants of this happy island. But before he stated his objections to the measure itself, he begged leaved to premise that personally he had no objection at all to lord Ellen-borough, on the contrary, he highly respected that noble lord, and thought that his talents, his constitutional principles, his undaunted firmness, and resolute independence of character, would make him a most valuable addition to his majesty's present Cabinet. But on general principles he must protest against the measure: First, because it tended directly to violate the great principle of the independence of the Judges. That was a subject on which he need not enlarge. Every gentleman's own mind would supply the necessary arguments. But, to what purpose were all the laborious precautions by which the independence of the Judges had been secured, and which had received the finishing hand at the beginning of his present majesty's reign, if the king could exercise that influence over the mind of a judge, which he would possess by being able to grant to him during pleasure, and at any time to turn him out from, a situation, the value and importance of which he need no otherwise establish, than by stating that it was confessedly the great object of the ambition of the greatest and the ablest men in this country? It would not be affirmed that the salary annexed to these situations was their chief temptation. No! it was the love of power, of pre-eminence, of command. The hon. gentlemen opposite to him would not deny that these were their own feelings; and where, then, would be the consistency of preventing a judge being removable from his judicial office, of preventing him from receiving any in crease of salary from the crown, and allowing the king to grant or take away from him, at a time, too, when he was already as affluent as he could desire, a situation which was, above all others, the object of pursuit in high and honourable minds? But, secondly, the hon. gent. declared, that even making the judge a politician was in itself most highly objectionable, and especially so according to those party principles which were so popular with the hon. gentlemen opposite to him, though he himself retained all his old objections to them in full force; it was the great glory of the administration of justice in this country that for many years. notwithstanding all the violence of contending factions, it had never even incurred the suspicion of being tainted by political connection or party bias. But would this be so in future? Could any man divest himself altogether of the feelings and prepossessions of the minister when he went to assume the office of the Judge? Suppose the country divided into two great parties mutually accusing each other of tyranny and sedition; suppose the judge in possession of his ministerial situation, called upon to try the firebrand of the day, would he be likely to judge him with an impartial mind? or, if the judge himself had been turned out of office and was in opposition as an ex-minister, might he not be likely to favour him? But there was still perhaps another question behind. Would he not be generally suspected of favouring him in the one situation, or of being actuated by a spirit of hostility towards him in the other? The general estimation in which the Judges of this country were held, was itself, the hon. gent. declared, of extreme importance. There was not perhaps any thing which so much endeared our political system to the people of this country, so much as the firm persuasion of the perfect impartiality with which justice, especially our criminal justice, was administered. And surely tins was the very lest period in which we should consent to a change which would have the effect of more than bringing into question this great object of the people's attachment. Surely, at a time when the circumstances of this country were such as to call for the efforts of every individual in its defence, when heavy burthens must be borne and large sacrifices must be made, this was not a time to weaken that love of the constitutional laws of our country, which it should rather be our endeavour to inflame and increase.—It might, perhaps, appear an objection of an inferior kind; only however because there were others of such extreme importance, that introducing a Judge into the Cabinet and making him a politician, would engross perhaps no small share of that time and attenion which the important duties of his judicial functions might well claim entire and undiminished. As a mere member of the house Of lords, he would not be likely to busy himself much with political matters. But, when he should be called upon regularly and habitually to take a part in devising, and framing, and executing, and defending all the measures of executive government throughout their whole extent, the case would be widely different. It would be impossible for him to fulfil this duty, without abstracting much of that time and attention which ought to be devoted to the duties of his judicial office.—There was another objection of great importance, which he would the rather urge, because it had not hitherto been touched by any gentleman who had hitherto spoken. It was known that the Judges could only be removed from their situations by the address of the two houses of parliament. Thus the two houses were by law constituted the standing superintend, ants of the conduct of the Judges of the land, a most important duty which they were well panned to perform so long as the Judges should remain without any close connection with our great political parties. But, how would this duty be fairly and impartially administered after a Judge, by becoming a member of the Cabinet, should become identified with the government of the country, should consequently be closely connected with the ruling party in both houses, and be in hostility to the party in opposition? His conduct, whatever it might be, continually arraigned by one party, would be defended by the other. It might become one common mode and form of opposition to attack the professional character of a Judge.—The hon. gent. said, he would only add on this head; the considerations he had just been urging would abundantly prove how little it accorded with the genius and spirit of our constitution, to make our first criminal Judge a member of executive government; and they afforded an answer to what had been stated, that there was no positive law against the measure. The answers which had been made to the motion by the hon. gentlemen opposite to him, had been so fully replied to, that he would only touch lightly on one or two of them. The instance of lord Mansfield had been mentioned as a justification of the measure. But it weighed with him in the directly opposite scale.—For, was there ever a Judge to whom it was so strongly objected that he carries his political prepossessions to the seat o justice? Now it is accounted for; he was a member of the Cabinet. We before had the phenomena; now we have the solution of them. The conclusion, therefore, was demonstrably clear. His trying lord George Gordon, for being the instigator of a mob, by which his own house had been burnt. had been this day mentioned.—The hon. gent. said, he would only adduce it as a proof of the habits of mind which had been produced by his being accustomed to consider himself as a political character, who was to take his side and go with his party, and how entirely this habit of mind had destroyed that instinctive delicacy which prompted a Judge to shrink from any thing which might give a bias or prepossession to his judgement. But, in truth, the hon. gent. remarked, all the arguments of the gentlemen on the other side, were grounded on the common fallacy of pushing a principle to extremes, and arguing that if it was not true to the utmost possible extent, it was to be held of no force or validity at all; that therefore, because he and his friends did not object to a Judge's being in the house of lords or the privy council, that therefore they had no right to object to his being in the Cabinet also: no species of reasoning was more unsound. But after all, the hon. gent. said, he would ask, as his hon. friend below him had done, cui bono? What sufficient motive could be alledged for the measure objected to? Could any temporary convenience of parties in the formation of a ministry, be for a moment to be set in the balance against even the possible and remote existence of evils, such as had been announced? He could enlarge much on this head; but he would detain the house no longer. He would only conjure gentlemen to consider this subject with the seriousness which it deserved. He would remind them that it went to fundamentals; that it touched the very vitals of the constitution; that it tended to affect the impartial administration of justice, our best possession and our highest glory; and to impair that peculiar excellency of our whole system which the people of this country had long regarded with the greatest, admiration and endearment.—After a few words from general Lennox, the house divided; when there appeared; for Mr. Spencer Stanhope's motion 64; for the order of the day 222; majority 158.

List of the Minority.
Ainslie, R. S.	Lenox, C.
Babington, T.	Long, Right Hon. C.
Bagwell, Wm	Longfield, M.
Binning, Lord	Louvaine, Lord
Baker, W.	Mordaunt, C.
Bootle, G. W.	Ma[...]waring, G. B.
Bourne, W. S.	Morland, W.
Brodie, J.	Morsham, Lord
Broderick, Hon. W.	Osborn, J.
Browne, I. H.	Paget, Hon. E.
Burton General	Primrose, Lord
Canning, Right Hon. G.	Percival, Hon. S.
Castlereagh, Lord	Phipps, Hon. E.
Cowper, Hon. S.	Pole, Hon. W.
De Blaquicre, Lord	Powell, J. Kynaston
Dalrymple, Sir H.	Rose, Right Hon. G.
Dilion, Hon. H. A.	Rose, G.H.
Egerton, Wm.	Ryder, Hon. R.
Ellis, C. R.	Seymour, Lord R.
Fellows, W.	Sitwell, F.
Fitzharris, Lord	Smith, T. A.
Fitzhugh, W.	Stanhope, W. S.
Foster, Right Hon. J.	Stewart, Hon. C. W.
Garlies, Lord	Tarleton, B.
Hammett, J.	Templetown, lord
Hinchinbrook, Lord	Wallance, F.
Holford, G. P.	Ward, R.
Huskisson, W.	Wortley, J. A. S.
Jeffery, J.	Wilberforce, W.
Lascelles, Hon. E.	Williams, Robert
Lascelles, Hon. H.	Wright, J. A.
Le Fleming, Sir M.	Willoughby, H.
Leigh, R. H.