Lord Broughamentered on the Journals, the following protest against the rejection of the motion for placing the Duke of Sussex among the Lords Justices, and leaving out the Lord Chief Justice of the Queen's Bench.
"Dissentient,
"First, Because the greatest recommendation of the Monarchial form of Government is the certainty which it affords of undisputed succession, and, therefore, every thing is most carefully to be avoided which tends, however remotely, to break in upon this governing principle of the regal part of the constitution. When provision was making by Parliament for supplying the defect in the royal authority occasioned by the absence from the realm of the King of Hanover, or other next branch of the Royal Family, on the demise of the Crown, the right of succession in the Duke of Sussex, or other next branch not absent from the realm, ought to have been recognised by naming that branch among the Lords Justices. This could not be done in 1707 (6 Ann, c. 7), because all the other branches of the Royal Family were then settled abroad, and most of them excluded from the succession. But in 1751, (24 Geo. 2d, c. 24, and 1765, 5 Geo. 3rd, c. 27) the sound principle was acted upon, and the Princes next in succession were placed in the Council of Regency then formed by the Legislature. The appointment of Lords Justices by the Sovereign, in contemplation of his temporary absence, has no bearing upon the question, both because that is an arrangement of an entirely different nature, and because it is not effected by the authority of Parliament.
"Secondly, Because the appointment of the Lord Chief Justice of England, the first criminal judge of the realm, to be a political functionary of the highest order, exercising the powers of sovereignty, is contrary to every principle of sound policy. It is likewise repugnant to the whole spirit of our judicial system, though sanctioned by precedents in times when the pure administration of justice was far less an object of care than it happily has at this day become; precedents which are in truth the relics of a much more remote and even a barbarous age. It is the more to be lamented that Parliament should now be called upon to sanction such a proceeding, because in 1806, in defending the more reprehensible measure of placing the Lord Chief Justice in the Cabinet, reliance was placed upon the acts of 1707, 1751, and 1765, as affording legislative authority for uniting in the same 1844 person the incompatible functions of Minister of State, and criminal judge. Nor can it now be contended that we are bound by those precedents, for they have in the present measure been departed from in other important particulars; and, if they had, not a departure should at any rate have been made in this particular, since the example of 1806 has shown the evil consequences of Parliamentary sanction being given to so exceptionable an appointment. BROUGHAM."