Sitting of 3 March 1806

MINUTES.
Mr. Hurstpresented a petition from the debtors confined in the gaol of Horsham in Sussex. Mr. Sheridan, col. M'Malion, Mr. Courtenay, and admiral Markham, took the oaths and their seats, on their re-election.—The sheriffs of London presented at the bar a petition from the lord mayor, aldermen, and commons of the city of London, in common council assembled, relative to the enlargement of Smithfield Market. Referred to a committee.—Mr. Whitbread said, he was desired by the committee, of which he had been appointed chairman, to give notice, that he should to-morrow make a special communication to the house on the subject of the impeachment of lord Melville.—It was ordered, on the motion of Mr. Foydell, that there be laid before the house an account of all the wool, woolfells, &c. imported into England for the last 20 years, distinguishing the quantity imported from the United States.—The Greenland whale-fishery bill was read a second time; to be committed to-morrow.—The qualification indemnity bill was read a third time, and passed.—On the motion of Mr. Vansittart, pursuant to notice, the house went into a committee on the Irish revenue acts. In the committee a resolution was agreed to for continuing the duties granted to the 25th of this mouth for a time to be limited. The house having been resumed, the report was ordered to be received to-morrow.—Mr. Alexander brought up the report of the committee on expiring laws. The resolutions were severally agreed to, and it was ordered to be an instruction to the committee appointed to prepare the expiring laws bill, to make provision therein pursuant thereto.—The order of the day for the house going into a committee of supply,

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being read.—Sir P. Stephens moved, that the estimates for the navy and transport service, presented in Jan. last, be referred to the said committee, which was ordered.—The house then resolved into the committee, when the different estimates were moved, and the report ordered to be received to-morrow.

AFFAIRS OF INDIA.
Mr. Meux,from the office of the commissioners for the affairs of India, resented at the bar the papers moved for by Mr. Paull, on the 25th and 28th of June, 1805. Ordered to lie on the table, and, on the motion of Mr. Paull, to be printed.
Lord Templesaid, he had no objection to the papers being printed, voluminous as they were. It was a subject of high importance, and every member should be enabled to consider it with mature deliberation. As the hon. gent. had, however, professed that he had moved for these papers with a view of grounding a charge against marquis Wellesley, he hoped he would not fail to bring it forward, as it was of the utmost consequence to the honour and character of his noble friend, that, after what had been suggested, a full and fair enquiry should take place. The hon. gent. had said, these were all the papers he intended to move for on that subject. He would, therefore, request of the hon. gent. to say, when he intended to bring forward his motion.
Mr. Paullsaid, it was now upwards of 9 months since he had moved for some of these papers, and they, were but just furnished to the house. As soon as he had leisure to peruse them, so as to arrange the matter on which to ground his motion, he should certainly bring it forward, and submit certain resolutions respecting the conduct of the governor-general to the consideration of the house.—All the papers were ordered to be printed.

AFFAIRS OF INDIA.
Mr. Alderman Prinsepstated, that in compliance with the suggestion of a right hon. member (Mr. H. Addington, see p. 242.) he had the other day consented to omit the word "bullion," out of a motion which was then agreed to, not being aware that he thereby, as he now found, destroyed the object of his own motion. He therefore moved, that the order be read and discharged, for the purpose of having one containing the word bullion substituted in its place.—The order was accordingly discharged; and on the question being
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put, for the insertion of the word "bullion,"
Mr. Huddlestoneobjected to it, on the ground, that the account was a detail of commercial concerns, which he did not think was proper to be made known. He was unavoidably absent, on the day when the hon. alderman brought forward his motion, or he should then have opposed it.—The hon. gent. said, that the evils which now oppressed the East-India company, were not imputable to the directors.
Mr. Alderman Prinsepappealed to the candour of the hon, director, whether it were a fair proceeding to object to the amendment of adding a single word to a motion, which had already received the sanction of the house, and to which no objection had, been made, previous to the order being discharged?
Mr. H. Addingtonsaid, the word "bullion" was in the original motion, and the hon. alderman had agreed to its being struck out, on his suggestion to the hon. alderman that it. was unnecessary. If, however, the hon. alderman now thought that the purposes of his motion would be better answered by the "bullion" being again inserted, he saw no reason why it should be objected to.—The amendment was agreed to.

LORD ELLEN BOROUGH'S SEAT IN THE CABINET.
Mr. Spencer Stanhopesaid, 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,

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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

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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

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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
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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

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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
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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-

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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-
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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

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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-
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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

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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-
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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. Canningsaid, 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

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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
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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-

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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-
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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

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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
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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

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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 Templesaid, 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
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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

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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
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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. Canningadmitted, 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 roseand 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-

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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
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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

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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-
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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

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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
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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-

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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
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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

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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-
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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

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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 roseand 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
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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

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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,
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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-

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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
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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-

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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
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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

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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-
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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

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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
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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,

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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
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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 Pettysaid, 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-

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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. Percevalsaid, 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
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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-

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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. Sheridansaid, 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
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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

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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. Wilberforcebegan 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
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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?

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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
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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

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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.
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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.

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.