Lords Sitting of 3 March 1806

CONDUCT OF JUDGE FOX.
The Marquis of Abercornmoved the order of the day for resuming the. adjourned debate on his motion of this day se'ight, for the attendance of several witnesses on the 28th of April, relative to the pending case of Mr. justice Fox. He adverted to what had taken place on a former evening; and when a noble lord (Grenville) then in his place, high in his majesty's councils, had suggested the expediency of a short delay, to give noble lords time and leisure to consider of the proposition, he expected, that he would come forward, and assign his reasons for wishing such a proceeding to take place. From the respect which he entertained for that noble lord, joined to the consideration of the delay proposed being merely nominal, with reference to the effect of a proposed order, which was to take place two months hence, he was induced
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to comply freely with that suggestion. He now deprecated any farther postponement of the consideration of that propositions. Their lordships would consider, that repeated and solemn discussions of the house had taken place upon the subject; that they not only heard and examined a great deal of evidence, but that the house was pledged, by its legislative act, to continue the proceeding. He was at a loss to conceive what reasons could be assigned for any further delay, or why the proceedings should not go forward with expedition and effect, as far as was consistent with the bare convenience of individuals, and the solemnity due to the nature and magnitude of the case. It was important they should, as far as in them lay, proceed to bring a case of such peculiar importance to a farther hearing, and a final decision. When he considered the high situation, not only of dignity, but of responsibility, in which the noble lord stood, and the parliamentary and constitutional character with which he was invested, he was unwilling to suppose that his first parliamentary measure and trial of strength, would be an attempt to interfere with the course of an important judicial process before that house, which had been solemnly instituted, commenced, and some progress, though with no great degree of expedition, made in it. These were not the only reasons which should determine their lordships upon the present occasion. Not only the eyes of this country, but especially those of the people of Ireland, were turned to that house, with respect to the proceeding; it was regarded by them as a progressive endeavour to redress important grievances, and to enhance the security of the rights and privileges of his majesty's subjects in that country; the first attempt which had been made for their effectual protection, since the incorporation of their parliament with that of this country. This was but one side of the case under consideration. On the other hand it was to be recollected, what was due on the score of impartial justice to the learned gent. whose conduct was the object of the investigation; they were aware of the evidence which had been adduced against him, and of course he should, in justice, be afforded an opportunity of controverting, of rebutting, and refusing it, if it were in his power. He wished that every opportunity should be afforded him for these purposes, as certainly his character was deeply implicated in

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the matters of charge. He should, therefore, without troubling their lordships with any further observations upon the case, move to have the question put. He had, however, to apprise the house, he should have to move for the attendance of a few more witnesses, when he could ascertain the number which may be spared.
Lord Grenvillesaid, he could assure the house, that he had nothing more in view in the course he had adopted, with respect to the affair in question, than the interests of the country, and the ends of substantial justice with respect to all parties, which he wished to be attained, in the mode that was most consistent with the laws of the land, and the practice of the constitution. It was in reference to these great objects, that he wished for some interval of delay in deciding upon what the noble marquis had proposed; it also arose from a difficulty which he then felt, and continued to feel, as to the course, circumstanced as the case then was, most proper to be pursued. Were he called upon to give a decided opinion, it would be that which he had more than once expressed last year; namely, that every step which had been taken in the business, had been in a wrong, and, as he thought, an unconstitutional course; in this opinion, he was confirmed by every research he had made, and every degree of study he had given to the subject. He was by no means ignorant or unmindful of those difficulties, and embarrassments, which the case, as it now stood, involved. He was also fully aware of its magnitude and importance. He felt all the difficulty of the consideration of breaking it off, or discontinuing the proceeding, after having entertained it so far. The question was therefore a great and important one, in a variety of views, not only as it respected individuals in Ireland, and the character of the personage accused; but as it involved considerations connected with the honour and character of the house. Upon the whole, he was not ashamed to say, the difficulties still continued to operate upon his mind, which was not yet prepared or satisfied as to what was proper, or ought to be done, or what course ought to be adopted. He felt it incumbent on him to put in this protest in behalf of the opinions he had formerly avowed; with regard to the express motion, it being to operate upon such a distant day as the 28th of April, which would afford their lordships ample time for intermediate consideration, he should not then resist it.
Lord Aucklandobserved, that with respect to the motion, were he to decide upon it, it should be in the negative. He was by no means satisfied with the course that had been adopted, and every thing he had since been able to learn, or collect, tended to confirm him in such an opinion: that house, he thought, was not competent to entertain a proceeding of the kind, and therefore he should be induced to resist it in every stage. So strong was the impression upon his mind, that he had recorded his sentiments upon the journals last year. He not only regretted it had ever gone so far, but he was sorry it was ever entered upon in that house; and he believed that few who heard him, would not wish it well out of that house. In concluding, his lordship adverted to the immense expence which had been already, and in all probability would still be incurred in the prosecution of the affair, a great part of which, he thought, would be ultimately paid by the public.
Lord Hawkesburydid not wish then to enter into a retrospective view of the affairs in question; they had been principally to consider the situation in which it now stood; in this view of it he seemed to deprecate all idea of stopping short. It was impossible for any person to read the case in evidence, which lay upon the table, and not see the absolute necessity of proceeding in the investigation of it. Not only with a view to the rights and interests, but the character of all parties concerned; even the credit and character of the house were involved; it was, therefore, in all these points of view, proper to proceed, thoroughly to investigate the case, and come to a decision upon it. He had given the best attention in his power to the business, and was ready to say, that even a respect for the character of the learned judge in question should be an additional inducement to their lordships to continue the investigation.
The Earl of Bucking hamshire,after shortly adverting to the sentiments he had formerly declared upon the subject, observed, he could consistenly, in the present state of the case, vote for a suspension of the proceedings. He alluded to what had been adduced in evidence, and upon record against the learned judge in question, and the degree of publicity it had obtained, which should be a consideration to determine their lordships not to leave the case in such an unfinished state.
The Marquis of Buckinghamappeared

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father to view the case as it stood at present before the house, and adverted to the ill consequence of stopping short. In this consideration, he seemed to think the character and estimation of the house were also involved. The proceeding in these different points of view, was, he agreed, of great importance. The opinions he had avowed as to the origin of the business, and the question of its being properly entertained in the first instance, by their lordships, he still retained. But the case, after what had been done, now stood in a different situation; this he threw out for the consideration of the house: under the impression, however, which, upon the whole, he felt, respecting the affair, he could not consistently assent to the motion.—The question was then put, and the witnesses originally named in the motion, were ordered to attend on the 28th of April, accordingly.

LORD ELLENBOROUGH'S SEAT IN THE CABINET.
The Earl of Bristol roseto bring forward his promised motion upon this subject, and spoke as follows: My lords, before I state to your lordships the views and motives which have induced me to shape the resolutions which I now hold in my hand, and which I shall this night have the honour of submitting to the consideration of the house, I feel peculiarly anxious to disclaim, in the strongest and most unequivocal manner, all party views in the step I am about to take, and I most earnestly entreat of every noble lord here present, not to consider the present question as in any degree of a party nature. For myself, my lords, I can most solemnly aver, and there are many who can bear witness to the truth of the assertion, that so far am I from being actuated by any hostile feelings towards his majesty's present ministers, that from the moment of the death of that great and illustrious statesman, whose loss has been so severely felt and so deeply lamented, no man in this house or out of it was more desirous than I was, to see the reins of government committed to the hands which now hold them; and, my lords, so sincerely were these sentiments entertained by me, so scrupulously was I disposed to govern my conduct by them; and so anxious was I, that in the present momentous crisis of the affairs of the country and of Europe, his majesty's government should enjoy the unanimous support of parliament, and of the public, that it was not till I had failed
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in my efforts to obtain the object of my motion, by private and confidential representation, that I reluctantly brought my mind to disturb that unanimity, even for a single day, by the agitation of this important question. With respect to the question itself, I have no hesitation in saying, that all that I have heard, and all that I have since read and thought upon the subject, have only served to confirm and strengthen the first impression of my mind; and I feel confident, that the oftener it is considered, and the more thoroughly it is investigated, the more clearly will it appear that the situation which the lord chief justice now holds in the Cabinet, is not only unwarranted by established usage, but is in direct repugnance to those sacred and fundamental principles of policy, which can alone secure to the people of any country, the pure and impartial administration of their laws. I am aware, my lords, that there is considerable difficulty in affixing to that situation, with legal accuracy and precision, the character of a responsible minister of the crown. But, whether he is to be legally considered as a minister of the crown, or only as an adviser of the ministers, as long as he is the associate of these ministers, and a party to their measures and their feelings, my objections to the promotion remain in their full force, I am, therefore, satisfied to rest this part of this case upon one single observation; and, when I have asked the house whether it would endure to see the lord chief justice hold the office of lord president of the council? which can only be answered by the most decided negative, I would put it to the feelings of every noble lord, who joins in that negative, whether it would not be a most mischievous practice, to separate that high ministerial station into its two component parts of power and of emolument: and, by throwing away the husk of the salary as food for baser minds, to be thereby enabled to give the power, the influence, the vital essence of the appointment, all that can be an object to enlarged ambition, all that true greatness can value or desire; to be enabled, my lords, to give this in a concealed and invisible manner, to those who could not dare to accept it in the ostensible and embodied shape of a cabinet office.—My lords, we have now learned from authority, that it has been determined that the lord chief justice should be an habitual member of that committee of the privy council, usually called the Cabinet. The deliberations

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of the Cabinet are not like those of the body of the privy council, from which it is selected, confined to proceedings of a judicial nature; but embrace all the political concerns of the country of every description. It is the duty and office of the Cabinet, to advise the Crown, in the exercise of all its functions. To be a member of the Cabinet, is therefore necessarily to be a party to all the measures of the administration; and is to be associated in the power, and identified with the interests of the executive government. It is this close and intimate connection between a judge and the king's ministers; it is this association and identification of a judge, with the executive government, which (whatever be its legal name), I condemn and reprobate; which I hold to be contrary to former practice; to be injurious to the judicial character; to be subversive of the liberty of the people: and which, I contend, has a direct and alarming tendency to blend and to amalgamate those great elementary principles of political power, which it is the very object of a free constitution to keep separate and distinct. In searching for precedents on this subject, I have been able to find but one single solitary instance of a common law judge having ever before been placed in this situation. The chancellor, it is true, is always a minister; but no argument can possibly be founded on this circumstance, in favour of the present transaction. The chancellor stands on grounds totally distinct and separate from the twelve Judges, a distinction well known to our ancestors, who left the chancery judge amenable at the pleasure of the crown, but secured to the judges of the other courts, their offices and emoluments for life. The chancellor, as keeper of the king's conscience, is brought into contact with the person of the sovereign; and as the great officer of state, to whose custody the great seal is committed, is necessarily, from the very nature of his office, a political character; and is, in fact, a responsible political agent of the crown, when he affixes the great seal to treaties, and other public instruments. On the other hand, it is to be observed, that the chancellor, being a minister, is not exposed to the same danger,as is the case of the twelve judges. No criminal trials come before him; and it is difficult to conceive how political bias could well operate in these causes which are decided in his court. But with respect to the common law judges, the case is very
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different; and I must again repeat, that although the crown has occasionally referred to them for advice, in moments of great public difficulty; although there may occur instances in which, on some extraordinary and special occasions, they may have assumed a species of political existence, for that special occasion, there is but one instance, from the revolution to the present day, of a common law judge having taken an habitual share in advising the crown on the ordinary course of state affairs.—The instance to which I allude is that of the great lord Mansfield. I believe it is true, and it is with regret that I admit it, that that great and splendid ornament to his profession, did hold the two situations of lord chief Justice of the King's Bench, and of Cabinet Minister. But there were circumstances attending this latter appointment, which sufficiently proved the doubts which were even then entertained of its propriety; and, it is satifactory to know, that on further consideration, and more mature reflection, the noble earl himself was so fully aware of the evils of the practice, and of the odium which attached to it, that no solicitation or entreaties could afterwards prevail upon him to form a part of the executive government. But, my lords, if this practice is to be tolerated in the chief justices of the King's Bench, if it is to be represented as innocent in them, in whom, by the way, it is more peculiarly dangerous and offensive, than in any of the other judges, how comes it, that it has never been extended to those who preside in the other courts, and what security hare we against its being so extended in future? A noble lord near me, who so lately sat upon the woolsack, when he was desirous of taking an active share in government, did not act a very prudent part, in exchanging the permanent situation of chief justice of the common pleas, for the precarious one of chancellor, if he had not felt that that situation was incompatible with the Cabinet; and a noble earl, now no more, the predecessor of that noble lord in both these high legal situations, when he was anxious to be admitted into the cabinet, that he might be responsible for measures which he approved, himself told us, in his place in this house, that he was fully aware of the imprudent and disadvantageous exchange which that wish necessitated; but, aware as he was of the imprudence and the risk, I never heard of his attempting to avoid that risk, by a proposition so mon-

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strous as that of admitting him into the cabinet, in his capacity of chief justice of the common pleas. My lords, that noble earl well knew, that it would have been at best but an ungracious act, to have taken advantage of that permanent affluence, which the bounty of parliament had attached to the office of a judge, for far different purposes, as the means of screening himself from that risk, and reconciling his interests and his ambition. He felt, that he was about to make a sacrifice to that ambition; and he felt, truly, that the sacrifice ought to be his private emolument, and not the constitution of his country. My lords, I much tear, that if some speedy and effectual remedy be not applied to this crying evil, the provisions of William III. and the present reign, for securing the integrity and independence of the Judges, will scarcely operate in any other way than as a bounty on their ambition, by enabling them to brave the storms of the political world, without the risk of shipwreck. But, my lords, if the course of precedents and practice was far less strongly in my favour, this is, after all, a question which must ultimately be decided by more enlarged and liberal views of the subject, and by considerations of expediency and of common safety, which are paramount to all precedents and all practice. In the whole compass of state policy, I know of no one principle on which there has been so universal a concurrence, as on the necessity of separating the judicial authority from the executive. This is a point, about which there can be no question. It is a truth indisputable, and which has never been disputed. All legislators, all statesmen, all eminent writers who have pronounced any judgment upon it, have concurred in these opinions. The remarks of Montesquieu, on this head, are pointed and remarkable; and such value does he attach to the judicial power being kept separate and distinct, that he is directly of opinion, that when this principle is respected, no form of government can be very oppressive; and that when it is neglected, be the form of government monarchical, aristocratical, or republican, private individuals must be exposed to a despotism, as severe as that which prevails in the dominions of the grand signior. Nor, my lords, is this a principle of mere general importance and advantage; it is one which goes home to the fire-side of every private family; it is one in which is
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involved the daily comfort and the daily security of every man in England. What, my lords, would be the alarming situation of any individual in this country, who, commenting on the general transactions of government, with that freedom which is the birth-right of every inhabitant of the land we live in, should thereby incur the displeasure of government, and a prosecution, under their direction, by the attorney-general? My lords, he would be sent to take his trial in that very court, where one of the ministers whom he had accused and irritated, would preside—and preside not merely to direct and influence the jury, but eventually in his own person, to award the amount of his fine, and the duration of his imprisonment; and, my lords, let me be permitted to state another case, and to suppose, for the sake of argument, that the other house should direct the attorney-general to institute a criminal prosecution against one of his majesty's present ministers, what, my lords, would be the sentiments of indignation excited from one end of the country to the other, to see that minister sent as a state criminal to the bar of a court where his colleague sits to judge him? I may be told that these are cases which are not likely to occur, and that under such circumstances the learned judge would abstain from attending. I desire no better proof of the incompatibility of the two situations, than this; namely, that in order to do his duty as a man, he must desert his duty as a judge, or as a minister; and I must observe besides, that I desire a better security for the persons and property of my countrymen, than the discretion of any mortal breathing. My lords, the noble lord who now presides upon the woolsack, has long been the friend of liberty and the constitution; I trust I shall have his support and countenance on this occasion. He cannot, I assure him, feel more for the happiness and liberties of the people than I do; and if we have not always agreed upon what measures We thought the best calculated to promote and to secure these great and important objects; in this, at least, we cannot fail to concur, that both are intimately and inseparably connected with the purity and perfection of public justice. I well know the sentiments of that noble lord on the importance of trial by uninfluenced juries, and by impartial judges. I know the indignation which would be kindled in his bosom, were a single individual in the country to

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attempt, by the ties of private friendship, or the influence of social habits, to tamper with a single juryman in the most unimportant trial. I well know the jealousy with which that noble lord would have challenged, on the part of a client, the name of a single juryman who was necessarily prejudiced in the cause, or who was, in any way, identified with the prosecuting party. In the name of the people of England, I demand that the same principles may be applied to the twelve Judges. I desire that they may not be placed in situations where they can be supposed to be tampered with by the king's ministers; I desire that they may not go down to their courts, talked over by their colleagues in office, animated by the same feelings, participating in the same interests, under the influence of the same prejudices and the same habits. Far am I from being one of those who think the atmosphere of Downing-street and St. James's so impure, that nothing can escape it unpolluted; but of this I am sure, that neither the palace nor the treasury, are fitted to be the daily resort of British Judges. No man will go further than I would in increasing their affluence and augmenting their comforts, or in opening to them the door to those fair honours which they may properly enjoy; but, in considering their interests, I will never lose sight of the more important interests of my country; nor will I, whilst I breathe, silently submit to see the Judges taken from that middle station between the subjects of the crown, and those who exercise its political functions, which is their proper sphere; and where alone they can maintain that character for independence and uprightness which his majesty was graciously pleased to recommend in a speech from that throne, as essential to the impartial administration of justice, as one of the best securities of the rights and liberties of his subjects, and as most conducive to the honour of the crown. I shall conclude what I have to urge, by reading a passage from Mr. justice Blackstone. "In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable 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 legis-
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lative, the life, liberty, and property of the subject, would be in the hands of arbitrary Judges, whose decisions would be then regulated only y 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 start-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."—His lordship concluded with moving a resolution, stating it as the opinion of the house, "that it was highly inexpedient, and tended to weaken the administration of justice, to summon to any committee or assembly of the privy council, any of the Judges of his majesty's courts of common law."—On the question being put,
Lord St. Johnsaid, he gave the noble lord full credit fur his assertions, that he was actuated by no party-feeling in bringing forward the present motion, or by any personal motives with regard to the noble and learned lord who was the present chief justice of the court of King's Bench. He was perfectly convinced that the noble lord had not been influenced by any consideration of that nature, nor by a wish to embarrass his majesty's ministers, who were, in fact, indebted to the noble lord for bringing forward this motion, inasmuch as it brought a subject into discussion, respecting which much misapprehension had gone abroad, but which he trusted would, by the discussion of this night, be completely done away. The proposition, itself, as made by the noble lord, was of an abstract nature, and he did not see any possible good that could arise from its adoption. He did not mean to look into Montesquieu for the law or constitution of England, neither upon such a subject did he acknowledge such an authority; and surely the noble lord must have forgotten, for the moment, the place in which he was speaking, when he advanced general theories, tending to prove, not merely that the judicial and executive functions ought

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not to be united, but that the judicial and legislative functions ought to be kept entirely distinct. Such a doctrine in that house Could never be recognized as a part of the law or constitution of England, where it had uniformly been the practice to blend, in repeated instances, the judicial and legislative character. This served to prove how little, relative to the constitution of this country, could be gathered from Montesquieu. He should look to better sources for information upon that subject, namely, the Statute Book, and the practice and usage of the country. Looking at the subject in this point of view, he should trouble their lordships with a few observations as to the precedents by which the measure that had given rise to this motion, was supported, and which the noble lord had not quoted. Instead of there being only one solitary precedents, the precedents were numerous, and all tended to establish the same point. Of the period antecedent to the revolution, he should say little, because the precedents since that period might be considered as more strictly applicable. He could not avoid, however, referring to two or three cases, one of which was a statute of Edward III. which enacted the establishment of a council to assist and advise his majesty, and which expressly appointed the chief justice of the court of King's Bench to be a member of that council. A more remarkable precedent occurred in the reign of Charles II. in the year 1672, when sir William Temple advised the king to establish a privy council, for the purpose of conciliating the people, and rendering the government more popular. A privy council was in consequence assembled, consisting of fifteen persons, who held offices, and of ten members of that house, and five of the other house, who were not in office. The king addressed them at their first meeting, stating the reasons why certain persons holding offices were summoned to attend the council. The lord high treasurer, his majesty stated, was summoned to give advice relative to finance; the lord high admiral, on matters relating to the navy; and the lord high chancellor, and the chief justice of the King's Bench, it was expressly stated, to give advice to his majesty on matters relating to law. These were all the precedents anterior to the Revolution with which he would trouble their lordships, only stating by the bye the act of Henry VIII. out of which arose
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the establishment of a privy council, and whose duty was stated to be to examine into matters of sedition, &c. and commit the offenders.—Subsequent to the Revolution, the precedents were numerous. The act of the 4th and 5th of Anne was strictly in point. By that act, which went to make provision respecting the Protestant succession, a regency was established in the event of the successor to the throne being out of the kingdom at the period of the queen's demise, and the chief justice of the King's Bench was expressly nominated a member of that regency, in which he was not merely to be an adviser, but himself acting immediately in an executive capacity. A similar act was passed during the minority of his present majesty, after the death of the late prince of Wales, and also after the birth of the present prince of Wales, in both of which the chief justice of the King's Bench was expressly included. All these precedents, therefore, fully recognised the principle with respect to the chief justice of the King's Bench assisting in his majesty's councils, and proved that it was an established principle in the law and constitution of the country. With respect to the objection started by the noble lord against chief justices concurring in prosecutions against, or attending the examinations of persons whom they were afterwards to try in their capacity as judges, it had been the constant practice for chief justices to attend on such occasions. Two or three precedents occurred to him at the moment; one in the year 1746, when lord chief justice Lee attended at the examination taken against several persons who were concerned in the rebellion of the preceding year, and who were afterwards tried for such offences. In the year 1780, also, lord Loughborough, then chief justice of the court of Common Pleas, attended in a similar manner upon the examinations respecting several persons concerned in the riots of that year. At a still later period, lord chief justice Eyre attended the council, on the examination against the persons who were afterwards, as it was well known, tried before the same judge. All these authorities were, he conceived, amply sufficient to establish that the measure complained of relative to the present chief justice of the court of King's Bench, was fully sanctioned by the usage and practice of the constitution. Fortined in this position, he could not yield to the general theo-

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ries of Montesquieu, which, if they applied at all to the subject, applied in a much more general way than the noble lord could wish to extend his ideas upon the subject, neither could he consent to vote an abstract proposition, which could answer no useful purpose, nor be productive of any practical good.
Lord Eldonon entering into the consideration of this question, disclaimed the idea that it was a question respecting any individual, or any administration. considered it as a question of much superior importance, as relating to the administration of justice in this country. He felt the highest respect and veneration for the noble and learned lord (Ellenborough), and it would give him the greatest pain if it were supposed, that the observations he should make proceeded from any personal disrespect; so far from it, it was in order to express his respect for that noble and learned lord, that he was induced to attend upon this occasion. He did not mean to contend, nor could he hear it argued, that the appointment of that noble lord to a seat in the Cabinet was illegal. It certainly was not illegal. Neither would he say, that it was unconstitutional: but he rose to state, that, although the appointment was not contrary to the law or the constitution, yet that there existed reasons which made it unadvisable or inexpedient. The reasons which weighed upon his mind were of a delicate nature. It was not enough that the administration of justice should be perfectly free and uninfluenced by government; it was not enough that it should be pure; but it should also be beyond the reach of suspicion, and so exercised, as to give perfect satisfaction to all his majesty's subjects. There were many analogies and precedents against the uniting the functions of chief justice with a seat in the Cabinet. Although, in order to shew that it had been before united, the solitary instance of lord Mansfield might be urged, yet it must also be recollected how extremely unpopular that noble and eminent person became after he had united those stations, and how that unpopularity hung to him for the greater part of his life. Perhaps it was an ill-founded jealousy which existed in the minds of the public, but still it was sufficient to weaken the confidence they ought to place in the judicial character. For his part, he was so well acquainted with the noble and learned lord, that he felt personally the utmost
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confidence that it would not, in any degree, affect the purity of the administration of justice, if lord Ellenborough had a seat in the Cabinet. It was not for his satisfaction, or for the satisfaction of those who had an opportunity of knowing and appreciating the integrity and worth of that noble lord, ,but it was for the general satisfaction of the nation at large, that he thought that the chief justice ought not to have a seat in the Cabinet. He utterly disowned and disclaimed every idea of the appointment being either illegal or unconstitutional, but still he thought the inexpediency of it so great, that he hoped when the noble lord reflected on it, he would not himself wish to retain his seat in the Cabinet. When he himself had often been consulted in examinations about sedition and treason, he should have felt that it would not be proper for him to sit as judge to try those persons whose prosecutions he might have advised. It might be said, that it might be so arranged, that either the chief justice should not attend the Cabinet when questions were to be agitated which might afterwards come before him for trial, or, if he had attended it, he might stay away from the court of King's Bench, and leave the trial to others. When he was appointed a Cabinet minister, it however, became his duty to attend, and it was a duty still stronger for him to attend his court, for the subjects of this land had a right to the assistance of the lord chief justice in the administration of justice. Although in the prosecutions he had before alluded to, the offences were not against any particular administration or government, but went to overturn all government, yet he might suppose a case, where the Cabinet council might think it proper to prosecute some libel against the government, or, in plain English, against the measures of the persons composing the administration. Were such a case to occur, he did not think it possible that the parties accused could be satisfied of the fairness of their trial, if the judge who was to try them was a member of that Cabinet which had ordered the prosecution. The question was not, whether those who knew the noble lord, as he did, would not feel a perfect security in his integrity; it was, whether the people at large would feel themselves as safe as if precedents and analogies had been followed. It might be said, that lord chief justice Eyre had tried those persons upon whose case he had been pre-

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viously informed and consulted: he by no means considered that as among the most honourable parts of the life of lord chief justice Eyre. He had himself been connected with lord Ellenborough for near thirty years, by the sincerest friendship, and if even he could suppose that this personal friendship could be at all weakened by any thing which he had said that night, he still felt himself so strongly impelled by a sense of duty, that he could not avoid stating his sentiments. He thought the inexpediency was so great and so striking, that he felt it his duty to state it. Had he been in the situation of lord chief justice, and been offered a seat in the Cabinet, he should, probably, have accepted of it, but when he should have heard the objections that had been now urged, he would have resigned it. He thought that the best way of disposing of the question was, to leave it to the consideration of the noble lord himself, and he was convinced the result would be more satisfactory both to his own feelings and to those of the public.
The Earl of Carlisleobserved, that a new sensation of alarm, which had slept for a hundred years, now began to shew itself, as if with a view to lower the new administration in the eyes of the people, to disturb that public confidence which was placed in men of such great talents and integrity as those respectable characters who composed the present administration, and to banish the joy with which all ranks of men witnessed the paternal care of his majesty, in calling forth persons of the most exalted talents to direct the affairs of the country. If all this alarm was allowed; if it was found that the public was extremely uneasy (and indeed, for his own part, he heard no uneasiness expressed any where); if this alarm, in short, was well founded, his objection to the motion was still stronger than ever, because it would not cure the evil complained of. It would go to prevent any privy counsellor from giving his advice to the king in the character of a judge. A very great inconvenience would arise from confounding the privy council with the committee of the privy council. The king had an undoubted privilege to call any privy counsellor to that committee. Because for a number of years no instance occurred of a judge being of such committee, that was no argument that the practice was unconstitutional. He never heard a complaint of any injury
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suffered from a judge being of the king's council. And if any reform was now deemed necessary, let a law be passed to declare that no judge shall sit in the council. But there was no occasion for such a law; because no grievance was to be removed. He did not believe that any such uneasiness as was stated, rested on the public mind, on the appointment in question. If this motion was carried, all judges must be excluded from the privy council as well as the Cabinet. He could not avoid deprecating the moment at which this motion was made. It was necessary that the new administration, to execute the arduous duty which at this moment of danger they had undertaken to perform, should have the public voice and opinion in their favour. Without public confidence, all their talents could avail nothing. He considered this motion to be one as ill-timed and injudicious as any that that ever was made, and, if agreed to, it would be of no avail.
Lord Boringdonsaid it was a very difficult thing to ascertain the bulk of the public opinion during so short a period as that which had elapsed since the appointment in question. For his own part, he believed the measure had communicated throughout the public a general sentiment of dissatisfaction and distrust. He wanted no reform or alteration. His only object was to preserve the liberty of the subject entire, and in doing that there was no occasion to go back to the reign of Edward III. Those who were called cabinet counsellors, were the responsible advisers of the king. It was a matter of notoriety, that the lord chief justice was not habitually summoned to the council. He was also the first criminal judge in the country. The two situations were incompatible; and of all the absurd constitutions which modern constitution mongers had adopted, none were more discordant than that of the chief criminal judge being at the same time a minister of state. Suppose the case of a book, declared by the Cabinet to be a libel on his majesty's government, and the author ordered to be prosecuted; was it fitting that such person should be tried by a chief justice who was at the same time one of his majesty's Cabinet ministers, and consequently one of the prosecutors of the very person whom he was trying? He did not wish to make the slightest personal allusion to the present chief justice of the King's Beach, but merely to argue the

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question upon general principles. Arguing in this way, it was well known that the Judges of the court of common law held their offices for life, or at least could only be removed for misconduct. It might happen that a judge who was also a Cabinet minister, might, in his office of judge, administer justice with unsullied honour and unimpeachable integrity, but who as one of the king's ministers and confidential advisers, might be impeached at their lordships' bar for high crimes and misdemeanours. He would then be placed in the singular situation of attending half his time as a judge upon the bench to administer justice, and the other half at their lordships' bar to defend himself against an impeachment for high crimes and misdemeanours. It was not merely from eminent writers, that a disapprobation of the general principle of such an union of offices might be gathered, but it had met in that house with marked reprobation from the late marquis of Lansdowne, after the late lord Mansfield had confessed that he had acted as a Cabinet minister, whilst holding the office of chief Justice of the court of King's Bench.
Lord Sidmouthagreed with the noble lord who spoke last, and with a noble and learned lord (Eldon) who had spoken earlier in the debate, that this was a question of very great importance in a constitutional view. He also agreed with the same noble and learned lord, that it was necessary that the administration of justice in this country should not only be free and unfettered by the crown, but that the purity of it should be beyond the reach of suspicion; and if in the present instance it could be urged, that there was any reasonable ground of suspicion, he would admit that no pressure of circumstances would make the time improper for the discussion. He had felt a strong desire to reply to the noble and learned lord sooner, but had been prevented by the rising of another peer; he was happy, however, to have heard from the authority of the noble and learned lord, that the appointment in question was not illegal, and that it was not unconstitutional; nevertheless, the noble lord had said, that if he had been lord chief justice, and had been offered a seat in the Cabinet, he should not have objected to it in the first instance, but that if he had accepted it, he should have resigned it upon more full and mature consideration of the inexpediency of his re-
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taining that seat. The noble and learned lord (Eldon) had declared his great respect for the high character of the lord chief justice, and had stated that it was from motives of personal regard and friendship to him that he had that day attended in his place. He must state, that in personal regard and friendship for the lord chief justice, he could not yield to any man; but that was not the consideration that induced him to attend upon this occasion. It was a sense of duty to his country that made it necessary for him to defend the conduct of his majesty's confidential advisers who recommended that appointment. For his part, if he had entertained the least doubt of the appointment being strictly legal, and conformable to the constitution and to established practice, he should not have attempted to support it, although he was convinced that, in the present instance, it would be a serious injury to the country, to deprive his majesty and the nation of the abilities and assistance of lord Ellenborough at the councils on public affairs. He was convinced that the lord chief justice must personally feel great uneasiness and regret at the public discussion that this appointment had produced. He himself felt sorry that any doubts should have been entertained on the subject, or that those doubts should be considered so serious as to give rise to a discussion which might occasion some uneasiness and alarm to the public mind; but as those doubts had been stated, and were considered worthy of discussion at the present moment, it was necessary that the question should be set at rest. It appeared to him, that the tendency of the objections which had been made would be to fetter the legitimate prerogatives of the crown, to limit the sphere of public duty, and the means which his majesty possessed of calling for the advice of persons of distinguished ability, in his privy council. Whatever would tend to withdraw from the public service the great abilities of the lord chief justice, he should deplore as a public calamity; but still it would be a sacrifice that must be made, if the law and the constitution required it. The noble and learned lord (Eldon) had, however, given up the point, so far as to confess, that it was not illegal or unconstitutional, but considered, that it was so highly inexpedient, that he hoped lord Ellenborough would, upon consideration, resign his situation at the Ca-

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binet. The subject had been for some weeks under the consideration of lord Ellenborough, and that noble and learned lord had not pleaded "guilty" to the charge of having accepted it situation which it was not proper for him to fill. The case of lord Mansfield was by no means a solitary case, as had been stated. Lord Hardwicke had for six months united the offices of chief justice and chancellor, and during that time sat in the Cabinet. There were numerous instances of judges being privy counsellors; there were also instances of lords chief justices executing much higher offices than that of Cabinet minister; although, certainly, it was not to be expected that many antient precedents could be found for their having a seat among that selection of privy counsellors which had been lately termed 'the Cabinet.' In the 5th of queen Anne, a bill was passed for regulating the succession of the crown, by which lords of regency were appointed to exercise all regal functions for the term of six months, or until George I. or the heirs of the house of Hanover, should come over to this country. Among these lords regents was the chief justice. This was certainly a much more executive office than that of a Cabinet minister. A bill of such importance did not pass without the most serious discussion, and great difference of opinion; but no one ever thought of objecting to the lord chief justice being one of the regents. Again, in the year 1751, there was a council of regency appointed by an act of parliament, which was much discussed in every stage, and in the discussion of which there were several conferences between the two houses. The then lord chief justice was in this instance also appointed one of the regents, without the slightest objection having been made on account of his office. These appeared to him to be very strong precedents indeed. There had been two instances of lords chief justices having been as regents appointed to exercise the functions of royalty: there were the precedents of lord Mansfield arid lord Hardwicke, who actually did sit in the Cabinet when they held the office of chief justice, and there were innumerable instances of judges having been also privy counsellors. There had been in modern times some change in the privy council. Their proceedings were now of a more public nature, and not connected so much as they had been in former times, with the arcana of government.
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He believed it would be very hard for any noble lord to point out by the constitution, any difference between a privy counsellor and a member of the Cabinet. The oath of a privy counsellor went to every thing which now concerns principally the members of the Cabinet. The privy counsellor's oath, was, 'to advise for the king's honour and for the good of the people, to keep secret his majesty's counsels, and to help, strengthen, and assist every measure that should be therein resolved, to enquire into all offences against the crown and the government, and to commit the offenders to prison, in order that they might be brought to trial.' This, which was the oath of the privy counsellor, differed scarce any thing from what was now the office of that select number of the privy council called the Cabinet. What was now done by the Cabinet, was formerly done in the privy council, and the many judges who had been of the privy council were therefore then bound to commit offenders to prison, who afterwards perhaps were brought to trial before themselves. The noble and learned lord (Eldon) had said, that although in the cases where he recommended prosecutions there was a conspiracy, not only against the existing government, but against all government, yet that he could conceive a case wherein the Cabinet might order a prosecution for a libel against the ministers, and in such case it would come to be tried before a chief justice, who was himself one of them. It would be as natural a case to suppose a libel against the privy council, which might be deemed a proper subject for prosecution. The same reason then which would prevent a judge from having a seat in the Cabinet should also prevent him from being a privy conusellor, but he would venture to say, that the objection had. never been made before the present day. It was allowed, however, that the appointment was not illegal, and therefore it did appear to him that merely to say it was inexpedient, appeared something like a personal objection. If the thing was improper in principle, a bill should be brought is to prevent it for the future; but for his own part he saw no inexpediency, and could perceive no other consequence likely to follow from the adoption of the motion, but the loss of the great talents of the noble and learned lord whose appointment was the subject of the present discussion. He was not, however, much, afraid of the

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public mind being much agitated or alarmed, With respect to the determination of the present question. The country was very lately in considerable alarm respecting its most important interests, but that alarm had considerably diminished, and in a very few days he was sure would disappear, and give place to the confidence that was due to that assemblage of talents and virtue which his majesty had united in administration. The people of this country were not attached to new theories and innovations, but were contented to preserve their excellent constitution in the state they found it before the present question; he was convinced the general feeling was satisfaction at finding a man of such great abilities as lord Ellenborough called to his majesty's councils. The noble and learned lord (Eldon) had said, that he was perfectly convinced that the possessing a seat in the Cabinet would not at all influence the judicial conduct of the chief justice: he felt convinced that the people at large were of the same opinion, and that the administration of justice under him would not only be pure, but above all suspicion. The people knew well, that a judge exercised his functions under the eye of public observation. He could not lift up his eyes and look in the face the jury and the respectable and eminent men in the profession of the law, if he was not conscious of the most perfect purity in his motives. This public observation was a most wholesome and salutary check and controul over the judges and all the magistrates of the land. Although the chief justice might have many political adversaries, he did not believe there were any who could reasonably entertain a doubt or suspicion of his being influenced in his functions as a judge, by his political situation or connections. Of the many great men who had presided in the court of chancery, lord Somers, lord Hardwicke, lord Thurlow, and the noble and learned lord (Eldon), he never had heard the slightest suspicion thrown out that their conduct in their legal capacity was at all influenced by their political connections. And yet, it appeared to him, that the situation of lord chancellor was much more dependent upon the crown than that of lord chief justice. The lord chancellor could be removed at pleasure. The situation of lord chief justice was for life. Besides, that the lord chief justice decided instantly the cases that came before him, there was no opportu-
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nity for private communications being made to influence his determination. He was bound to determine by a precise rule, the lex scripta; whereas the lord chancellor must determine, in a great measure, by the general principles of equity which were in his own breast. If, therefore, it were to be put entirely as a question of expedience, he could see no reason why it was more inexpedient, generally speaking, that a lord chief justice should have a seat in the Cabinet, than that the lord chancellor should sit there. For these reasons he felt a perfect conviction in his mind, that the motion could produce no beneficial effect; but that it would only tend to preclude his majesty from calling to his council, many men of great abilities, and to diminish the number of those who might naturally be looked to for advice and assistance. The noble lord concluded by declaring, that, under these impressions, he felt it his duty to give his negative to the motion.
Lord Mulgraveprofessed to feel a high respect for the character of the noble and learned lord (Ellenborough) in his judicial capacity, but disapproved of the idea of uniting in the same person the very different characters of minister of state and judge in a criminal court. He would by no means wish to agitate this or any other question with a view of diminishing the confidence that he thought it necessary the present government should have in the actual circumstances of affairs. For his part, he felt no want of confidence, or jealousy of the present government, when he saw the noble lord (Grenville) at the head of it. There were parts of the administration which, if they stood alone, would not have obtained his confidence, but, united as they were, he saw no reasonable ground for jealousy or distrust. As to the word "Cabinet," although it might have been but lately introduced, still it was a term that was generally understood, not only in this country but all over Europe. The members of the Cabinet were considered the responsible advisers of the crown, and the lord chief justice, in that capacity, might be brought to that bar and impeached, when his presence might be necessary in the King's Bench in his judicial capacity. As a minister, his majesty might be addressed to remove him from his presence and councils for ever, and yet, as lord chief justice, his majesty could not remove him, as long as in his judicial

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capacity he should conduct himself without reproach. It was for these reasons that it appeared to him generally inexpedient that a lord chief justice should be called to a seat in the Cabinet. As to lord Ellenborough, personally, he had a great respect for his character as a judge, but he did not know what great service was to be expected from him in the Cabinet. As to his knowledge or experience as to matters in law (great as it undoubtedly was), yet the government did not appear particularly to be in need of that legal advice, when they had a lord chancellor who had such extensive experience of the law, and when they could be assisted by the advice of the attorney-general and of the solicitor-general (Mr. Romilly), who had perhaps as much experience in equity as the lord chancellor had in the courts of law. As to general politics, it could not be supposed that lord Ellenborough had more knowledge of the subject than any other man in the kingdom, of a cultivated mind. His professional habits must have prevented him from giving as much attention to these subjects as other persons; and, in point of fact, while he had been in parliament, whether as attorney-general in the lower house, or as a peer in that house, he had taken very little share in questions of general politics. He therefore could not see what necessity there was for giving him a place in the Cabinet.—But, in truth, the situation of a Cabinet minister, was totally incompatible with that of chief justice; since, to mix with the provisions, enquiries, wad directions for a prosecution, was inconsistent with the unprejudiced trial afterwards. It was, for instance, not unusual for the Cabinet to order the trial of persons for libels on foreign princes; what would be the consequence, in that case, of a trial before such a political judge? If on the conviction of some such writer, the judge were to pass a severe sentence upon him, might not the public justly complain that he was sacrificed to the political motive of standing well with such foreign prince? And if, on the contrary, a lenient sentence was pronounced, might not the prince ascribe the circumstance to the government with which he was politically connected? A chief justice of the King's Bench held his situation independent of the pleasure of the crown; not so a member of the Cabinet. In every way, therefore, it was an appointment which he could not sanction
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with his approbation, and he should certainly vote for the motion of the noble earl.
The Earl of Carnarvonhad not heard an argument that tended even to stagger his mind on the propriety of the appointment. He considered the motion as a thing unprecedented in British history. It was a direct attack on the king's prerogative, and went to take from his majesty his undoubted right of calling to his confidential councils the person of whom he approved. It differed materially from a motion for an address to remove ministers whose measures were disapproved of; since here the person alluded to had only been appointed a few days, and no allegation was made against his general character. It was a curious reason, that, because he was called to the committee of privy council called the Cabinet, he was less fit to discharge the office of Judge. All state trials were ordered in the privy council; and, from time immemorial, the chief justice of the King's Bench had been a member of the privy council. He said they would find upon reference to our history, from the earliest periods, that the chief justices had been consulted as statesmen. They must not take it from the revolution only, for our constitution, in this respect, was long antecedent to that epoch; and it was full of instances of this kind. He animadverted on the passages in Montesquieu and Blackstone, and contended that they must not take the mere theories of writers, against the invariable practice of the government.
Lord Eldon,in explanation, stated that he did not say that he would have advised the noble and learned lord to have declined the appointment to a situation in the Cabinet, but that he would have recommended him to re-consider the proposition.
Lord Hawkesburysaid, that the importance of the subject compelled him to obtrude himself upon their lordships. No question more interesting could have been offered to their lordships, not merely on account of its connection with the lives and liberties of the people of this country, but it was important also in another point of view. It was one which vitally touched the very essence of the constitution. Before he addressed himself to the question, he would take an opportunity of declaring, that he did not yield to any one in that house in personal respect towards the noble and learned lord against the expe-

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diency of whose appointment the motion of his noble friend was directed. Looking at the question as a question applying to lord Ellenborough, he would say that nothing would afford him more pleasure than to see lord Ellenborough, as lord Ellenborough, a member of the Cabinet, though he could not bring himself to approve of his being there as chief justice of the King's Bench. He had the honour and happiness of knowing that noble and learned lord well; on many great points he knew that their opinions concurred. In the present administration, to which, whatever might be thought, he had no hostile disposition, there were many of the appointments which he approved, and into which he should have considered the introduction of lord Ellenborough, were it not for his situation, as an arrangement highly desirable. He was persuaded, that while that noble and learned lord made part of the administration, that he would never allow the principles for which they had jointly contended, to be beaten down. The question to his understanding might be considered in three points of view; either as relating to the constitution; as it respected the particular instance; or as the arguments drawn from analogy applied to it. He would not look to any foreign writer for the principles of the British constitution; but upon the general principles of liberty, he could have no objection to consult so eminent a writer as baron Montesquieu. What was his opinion upon the division of political power in a state? It was this, that it was more advisable that the judicial power should be separated from the executive, than that the legislative authority should be distinct from the executive. Such too was the opinion of that admirable writer judge Blackstone. For himself, he was not such an extravagant theorist, as to wish to push principles beyond practical utility. The course which a wise legislator would adopt, would be to make the exceptions to his general principle, not as numerous, but as few as possible. In his conception, there could be no union more dangerous, than that of a judge and a minister of state; and such, to all intents and purposes, was the present chief justice of the King's Bench. He was, and of necessity must be, identified with those who constituted what was called the government, in danger of becoming a party to all their passions and prejudices; and giving him, as be did,
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full credit for the utmost purity, it was impossible, that, in questions between government and individuals, he could be considered as an unbiassed judge. Suppose the case of a libel published against the administration of the country of which he made a part, was brought before him; in what an awkward situation would he be placed, sitting in judgment upon an offence actually committed against himself! In cases of riot too, arising from the dearness of provisions, and to suppress which, government might possibly have recourse to strong measures of authority; was it advisable that one of the Cabinet ministers should be sitting as judge to try the persons who should be found offending against the laws applicable to such contravention? His noble friend had stated, and truly stated, that there was but one instance since the revolution, of a common law judge acting as a Cabinet minister. Why did he begin his researches from the revolution, but for this reason, that it was only from that period that the independence of the judges commenced? In that period there was only the solitary instance of lord Mansfield, for he could not consider lord Hardwicke's case as a fair precedent, tilling as he did, for certain reasons of weight at the time, the offices of chancellor and chief justice together. With respect to the particular case, if there had existed any circumstances which made it necessary, and such he would admit might exist, to call lord Ellenborough to the Cabinet, their lordships would not have heard of the present motion. The case of a lord chancellor having a seat in the Cabinet bore no analogy whatever to that of a chief justice, for the jurisdiction of the former in no degree applied to criminal law. The chancellor was removable at pleasure, because he was a Cabinet minister; neither the judges nor the master of the rolls were, because it was not intended that they should ever become responsible advisers of the crown. With regard to the arguments drawn from the two regencies, he would observe, that one of them was never acted upon, and the other only for a short time. A noble and learned friend of his who spoke early in the debate, allowed that it was neither illegal nor unconstitutional. He knew how difficult it was, when once you admitted that a thing was not illegal, to prove that it was unconstitutional; but he would contend, that the appointment of the chief justice of the King's

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Bench, of a common law judge to a seat in the Cabinet, was not congenial with the pure principles and practice of the constitution. He should be sorry to see that respect which was due to the sacred character of a judge, diminished by such an innovation upon the constitution. Whatever might be the decision of that house, it could not be concealed that the general feeling of the country was against the appointment.
Lord Hollandreplied to the different lords who had supposed the motion. He said, that a most artful attempt had been made to confound things which were in their nature separate; and to separate those which were in truth the same. It had been ingeniously attempted to make an active, ostensible minister of the king, and a person merely summoned to a committee of the privy council, one and the same thing, though nothing could be more separate and distinct. And next, it was attempted to make a member of such committee and a member of the privy council separate and distinct characters, though they were really one and the same. The artful meaning of this was, to fabricate a supposed responsibility which did not exist and was not known to the constitution. It was to endeavour to make a mere confidential counsellor of the king responsible equally with an actual, efficient, ostensible minister, in a particular department. The constitution knew no such thing; no measure could take place, no act could be done but there was one active responsible person to whom parliament and the country had to look for it, and who must answer for it if wrong. This might suit some of the members of the late unfortunate administration, but it would not pass; and let not the noble earl (Mulgrave) imagine that such a subterfuge could avail. If a majority of the other house of parliament, for instance, were to bring up articles of impeachment against the rash, unprovoked, injurious publication of treaties, letters, and papers, by which the good faith of the country was violated, its honour and reputation tarnished, and by which it was likely to be for ever cut off from all confidence, communication, or correspondence, with any other country in the universe: by which too its friends and allies, those who had been drawn in to make common cause with us, were to be ruined and undone; by which our and their implacable enemy was to be furnished with arguments
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for completing their ruin; as, for instance, by the mention of Naples, to furnish Bonaparte with the proof that that unfortunate country was, from the beginning, engaged on our side. If such articles of impeachment were to be brought up from the other house, do not let the noble Carl fancy, that the responsibility could be frittered away, by being divided over all the Cabinet of which the minister for foreign affairs was a member. No; the house would look to the sole and responsible man, recognized by the constitution, which abhorred the idea of a prime minister. If this were not the case; if the individual who not only advised, but personally acted on the occasion, were not responsible in himself, then there was an end to all the securities which were proffered by our constitution. There was also in fact an end to all the boasted liberties of the people. It appeared, according to the opinions expressed by some of their lordships, that it was impossible for any thing like freedom to exist, if the judicial and executive authorities were in any degree united. Their separation, it had been observed, was attended to even in Turkey. He acknowledged that he never had heard of Turkish judges being employed on a diplomatic mission, though an instance of that kind had occurred in a country whose constitution, in many respects, resembled our own. Mr. Jay, who concluded the treaty between this country and the united states, was, he believed, a chief justice; of course, if the doctrine laid down by the noble lord opposite to him was true, Turkey was a land of liberty, and the government of the united states one of the most despotic in the world. Lord Mansfield sat in the same Cabinet with the late earl of Chatham, but it appeared that noble lords on the other side were become so delicate, that they could not now stomach what that great man thought perfectly consistent with the constitution. It was said that regency acts did not afford precedents in point, as they were passed on extraordinary occasions, and intended for only short periods. The last bill of that kind, however, which passed, was in contemplation of a minority which might have continued for 15 or 16 years. The noble lord, then, must suppose that the present administration would last longer than that period, and he was happy to draw from his opinion so favourable an omen of its duration. From some opinions which had been declared on this

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question, he was at a loss to conjecture what idea some noble lords had formed respecting the judges of the kingdom. It appeared to be their wish that persons in that situation should have no relations with the rest of society; that they should have no friends, no children, and be divested of all the feelings common to human nature. The house would recollect that the lord justice-general of Scotland was a member of the late administration. The present lord justice Clerk in that country was colonel of a volunteer corps, and so far was he from thinking that association of offices improper, that he avowed it on the bench: and when a case came before him, in which two persons belonging to his own regiment were parties, he intimated to them to call on him privately, and he would settle their difference. It appeared that learned lord had no desire to keep distinct the military and judicial character, though that was a separation particularly insisted upon by lord chief justice Holt, whose authority had been so much relied on by the noble lords on the other side. It seemed to be made a great objection to the present administration, that a seat in the Cabinet should be occupied by a noble and learned lord, who held no office in the executive government. This objection would, however, apply with at least as much force to the late administration. Had he gone round that Cabinet, and asked each of the members that composed it, what they did in the government? he believed that very few of them would have been able to give an answer to the question. Whether their lordships looked across the Atlantic, or considered the situation of the continent, they would perceive every where melancholy proofs of the consequences of the rash and intemperate councils by which his majesty's late government had been directed. It was therefore absolutely necessary to call to the administration of public affairs men of known integrity of public affairs men of known integrity and talent; men capable of forming an efficient Cabinet, in which no persons should be introduced merely for the purpose of filling a chair.
Lord Mulgrave,in allusion to an observation of the last speaker respecting the publication of the treaties with foreign powers, said, that he should consider it as the happiest day of his life, when he could meet him on that subject, and challenge him to bring forward a specific motion on the subject.
Lord Hollandsaid, he neither gave, nor would give any pledge of bringing forward any such proposition.
Lord Grenvillesaid, that person must be very confident in his abilities, who could hope to add to the arguments which had been advanced in support of the appointment against which the motion of the noble earl was directed. That appointment was no object of trite responsibility. If there was any illegality to be discovered in it, if it was found to be unconstitutional, if it threw suspicion upon the pure administration of justice, it was upon the person who addressed their lordships, that the guilt, if guilt there was attached to it, solely and exclusively rested. It was he who counselled it, it was he who suggested it, it was he who had given his written advice to his majesty to that effect. He was glad that the subject had been submitted to the consideration of parliament. He had always found, in the course of no short official life, that whenever any question excited apprehension in the public mind, the most advisable course was to bring it into speedy discussion. Much pains had been taken, out of that house, to impress a conviction that the appointment was illegal; a noble and learned lord had said that it was not. It was stated to be unconstitutional; here again the same noble lord declared it was not. The noble and learned lord (Eldon) said that he upon the occasion would have acted as lord said that he upon the occasion would have acted as lord Ellenborough did, and he was persuaded the noble lord would not have acted in a manner which he would consider as improper. Much stress had been laid upon the opinion of judge Blackstone. Whatever merit might be discoverable in that writer, it could not be denied that many of his theories were fanciful and impracticable. He would attack the principles advanced by the noble lord who had spoken so long and so eloquently, and assert that there was no such distinction to be found in the constitution, as that which he endeavoured to maintain. He would give but little authority to the wild, the beautiful theories of Blackstone, for, in order to meet them, it would be necessary to abrogate the jurisdiction of that house, What do the noble lords say by way of answer to the precedents produced? Why this; the case of lord Mansfield was one innovation upon the constitution, let us not have a second. From the earliest periods of our history it would be found

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that legal persons have been called to the councils of the reigning sovereign. The grand justiciary formerly was the first minister. His lordship then examined the precedents of sir Edward Coke, of sir W. Temple, of the regency of queen Anne, charged with no light matter, the settlement of the political succession to the crown. Of that regency were both the chief justices members; and if seditious bad taken place, if libels had been published tending to obstruct that settlement, the offenders must have been tried before one of those judges, if he did ins duty.—With respect to the instance of lord Mansfield, he would say a few weeds. He never could have thought, that it would have become his duty to defend the memory of lord Mansfield against the reflection which had been thrown upon it, that his character for the administration of justice had suffered during a certain period of his life. His lordship here read several passages from the speech of lord Mansfield, upon the motion brought forward against him in the year 1775. The charge then was not that he was at the same time chief justice and a Cabinet minister, but that long after he had ceased to have a seat in the cabinet, he continued to be one of the secret advisers of his majesty. His lordship next observed upon the cases of chief justices Holt, Lee, Mansfield, Kenyon, the last of whom, it was said, was only occasionally called to the council. There was nothing, he said, which should prevent a firm and upright judge from doing his duty, both as the head of the criminal judicial power, and as one of his majesty's Cabinet council. He cited from a minute of the council, a precedent, on the 9th of June, 1780, when chief justice Wedderburn attended it to enquire into the cause of the late riots, was one of the sub-committee which collected the evidence, and reported upon it to his majesty, and afterwards was one of the commission which sat in the Borough for the trial of the rioters.—Having pointed out a variety of instances in which judges had attended the Cabinet council, his lordship observed, that the answer given to these instances was Very extraordinary. It was said, that the judges whose names had been mentioned, had only attended the Cabinet occasionally, and that therefore their cases afforded no precedent. But it was manifest, that to them the objection urged by the noble lord would must particularly
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apply, since they had attended the council for the express purpose of examining pert sons who might afterwards be tried before them. If the noble lords Who supported the motion were serious, they would carry it a little farther, and propose to resolve that it is inexpedient for his majesty to appoint any any minister but with the consent of parliament. He certainly never expected to have such a subversion of the royal prerogative attempted. If a motion of this kind were to be carried, the constitution could not exist for six months after it. He therefore hoped that their lordships would never allow it to find a place on their journals. It was worthy of remark, that the noble and learned lord, whose situation had given rise to this discussion, had been himself called upon to advise his majesty, through the means of persons who now supported this motion. After having advised his majesty to make him lord chief justice of the court of King's Bench, they advised that he should be called to a seat in that house, the great council of the nation. The patent by which he was so called stated expressly, that he was to advise his majesty on the arduous concerns of his reign, and the great dangers thereon impending. He had no difficulty in declaring the motives which induced him to advise his majesty to call the noble and learned lord to his councils. He knew him be a man possessing a great mind, and whose services the situation of the country demanded; he knew him to be a man of a firm mind, such as the times
required. He knew him to be a man of the greatest purity and integrity, and therefore calculated to do credit to the government, Instead of entertaining an opinion similar to that of the noble lord (Mulgrave) he thought that no better proof could be of forded of the determination of his majesty's ministers to act according to the laws of the land, than placing in the Cabinet a man deeply versed in those laws, and who could have no temptation from the expectation of any emolument. His lord. ship declared, that he therefore should not repent of having given a written advice to his majesty to call the noble and learned lord to his councils. He was also convinced that the noble lord himself would not repent his having taken on himself a laborious occupation, when his efforts were to be directed to the great purpose of rescuing his country from a situation of great difficulty and peril. Under these circum-

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stances he was confident that nothing but good could result from the advice which he had thought it his duty to give to his majesty.
The Lord Chancellorleft the woolsack and spoke against the motion. He thought it could not be attended with any solid good. His majesty had been pleased to call the noble and learned lord to the most honourable situation; and from his long knowledge of the character, conduct, and capacity of his noble and learned friend. who was a sound constitutional lawyer, no man was better entitled to the honours bestowed on him in his various appointments of chief justice. privy counsellor, and member of the Cabinet. If those who differed from him on the occasion, persisted in their opposition, the burthen lay upon them to prove that his last appointment was either illegal or unconstitutional. The appointment now challenged had been known as the practice of the antient constitution. Why should his majesty be prevented from the free exercise of his prerogative, in calling to his councils or his Cabinet any man in whose abilities he reposed particular confidence? But not to call into his majesty's Cabinet or councils a nobleman whose knowledge of the law of the land, and of the constitution of the country, was in every degree fully admitted, would be an absurd infringement of his majesty's prerogative. The motion should have his decided negative, for he would never lightly consent to alter any part of the ancient constitution of this country. The scenes which had been exhibited on the continent, afforded a terrible example of the mischief which was likely to result from any attempts to introduce reform founded on theory and speculation. It was the peculiar advantage of the British constitution, that it had been formed gradually, that it was the creature of time and circumstances, not the offspring of any theory. The noble and learned lord then dwelt upon the very honourable situation which he so unworthily occupied in that, house; but, notwithstanding his present elevation, he declared that he would never forget his duty to the people, whose partiality he had so long and so happily experienced—He would never forget the active and successful part which he had always taken in support of the trial by jury. These facts, honourable to his individual recollection, induced him to declare, that if he saw any danger from the appointment of
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lord Ellenborough to a seat in the Cabinet, he would have thought it his duty to have opposed him. Referring to the character and conduct of the late lord Mansfield, he bestowed on that great man the warmest panegyric; and noticed, with particular pleasure, the honour he had in presenting to his lordship an address from the bar, on his retirement from the seat on the bench which he had so honourably and so nobly filled for a series of years.—The question was then called for, when the motion was negatived without a division, and, about one o'clock, the house adjourned.