Star. — London, England, 1806-03-04 00:00:00

Lord BORINGDON differed from the, Noble Lord who had (puke la, and confidered that the fundions of Lord Chief Mice, and of a hlinifter of State, ought not to be difcharged by the fame per fon. He was a little furptifed at hearing the Noble Lord charge that fide or the Houle with Milling to introduce innovations, and with poffelling a furious seal for reformation. They only wanted the Con. Ritution to be maintained and preferved, as it is at precast. In fpeaking of the Conflitution, he did not *ran to go back to Edward the Firft, of to time. of great antiquity. However long the theory of the CConftitution might. have remained unchanged, yet there was no doubt but that it had been pradically much changed in modern times. Nothing was more eflabliased in the orallice of the Contlitution, than that the Cabinet Minißers were, 'to all intents and purpufes, to be confidered the refponfible advifers of the Crown. It might therefore happen, that a Chief Plaice, who fhould difcharge his fundions in the King's Bench with the molt unblemilbed purity and reputation. might Rill be impeakhed for his conduit as a Minder, and take away from that attendance which was due from him to the public in the fitua tion of a J udge . Although he had the higheft opi nion of Lord Ellenborough, and did not think it likely that that Judge would Coffer his political con nations to influence him in the adminiftration of jutlice. ytt it was not probable purity that was ftsffi eient for the public. The adminiftration of jufitee thould be abfolutely free from fufpicion. On there ground, be thought it improper that a Chief Jake (tumid have alfo a feat in the Cabinet. Lord ---- - agreed with the Noble Lord • and Learned Lord the debate, that . imp ortance i n a agreed with the fame ' it was neceffary that •his country fhould v the Crown, bat 4 beyond the reach of ant intlanee it could be reafonableground of NC - pre are of circus)** Toper for the Med. -e to reply to the but had been pre •t• ; he was happy authority of the e appointment la it was not °neon. Lord had faid,that and had been of ` not have objected he had accepted . , more full and ma. inexpediency of his retaining (Lord Eldon) had declared 'h charader of the Lord d that it war from- mo• ft' ip dfltip fur h to him, that Lent . , liceHemttiße . yield to any man;' In that induced him • was a fetch of duty neceffary for him to de. efty's confidential advifers appointment. For his poet, 1 Zeal doubt of the appoint -4 conformable to the pradice, he thould it, although he was inflance, it would be a deprive his Majef. Ls and affiftance of Councils on public affairs. 4 Chief Jultice tuna regret at the pub .l. had produced.— doubts thould have or that thofe doubts is to give rife to a &A Come useatinefs and as thofe doubts had worthy of difeuffion neceffary that the appeared to him, oblations which had been - legitimate prerogatives oere of public duty, and / poffelfed of calling for Illinguilhed ability, in his would tend to withdraw great abilities of the _ Juts._ , _deplore as a public ca :y—but it Rill would be a facrifice that mutt be made, if the Law and , the Conititution required it.— The Learned Lord (Lord Eldon) had, however, given up the point, fo far as to confefs, that it Was not illegal or uncontlitutional, but confidered, that it was fo highly inexpedient, that he hoped Lord i Ellenborough would, upon confideratiol, refign his fituation at the Cabinet. The fubjed had been for Come weeks wider the confideration of Lord Ellen borough, and that Noble and Learned Lord then at- tended in his place, to Rica, that it was not his inten tion to plead 'Guilty' to the charge of having accep ted a fituation which it was not proper for him to fill ; and that it WAS not his intention to allow, that the refponfible Minifters and advifers of the Crown AO -zd wrong in recommending to his Majelly to call his Lortillip to his Council upon the great affairs of the nation. The cafe of Lord Mansfield was by no means a folitary cafe, as had been Rated. Lord Hard wicke had for fix months united the offices of Chief Jutlice and Chancellor, and during that time fat in the Cabinet. There were numerous inflances of judges being Pt ivy Councillors ; there were alfo in- Stances of Lord Chief J uttices executing much higher offices than that of Cabinet Miniller, although, cer tainly, it was not to be expelled that many ancient precedents could be found for their having a feat among that !elation of Privy Councillors which have been lately termed " the Cabinet." In the sth of (teen Anne a Bill was palicd, for regulating the fucceflion of the Crown, by which Lords of Regen cy were appointed to exercife all regal funftions for the term of fix months, or until George the Fiat, or the heirs of the lioufe of Hanover &odd come over t o this Country. A mute, thefe Lords Regents was the Chief Ju!tice. This WAG ter-airily a much more executive office than that tt CAinet Minifter. A L.llot loch importance did 11 , I pafs without the molt , • . feliout dircuffion,4n3 great difference of dpinion, hot an one ever thought of objeaing to the Lord Chief , Janice being one of the Regents. Again, in the year 1751, there was a Council of Regency appointed by an All of Parliament, which was much difcuffed in 'every Rage, and in the difcuffion of which there were feveral conferences between the two Hossfes.— The then'Lord Chief Plaice was in this inftance alto appointed one of the Regents, without the II ighteft objedlion having been made on account of his office. There appeared to him to be very ftrong precedents in deed. There had been two inflances of Lords Chief Junices having been as regents appointed to eiercife the fsinaions of Royalty : there were the precedents of Lord Mansfield and Lord Hardwicke, who aftually did fit in the Cabinet when they held the offices of Chief Juftice, and.ehere were innumerable inflances of Judges havinglmen alto Privy Councillors. There , bad been in modern times fome change in the Privy Council. Their proceedings were now of a more public nature, and not contented Co much as they ad been in former times with the 0 Arcane" of Government. He believed it would be very hard for an Noble Lord to point out by the Conftitution, soy erence between a Privy Councillor and a themr of the Cabinet. The oath of a Privy Coon calor went to every thing which now concerns prin. cipally the Members of the Cabinet [His Lordfhip then read the Privy Councillor's oath, which it " to , schrift for the King's honour and for the good of the I people, to keep fecret his Majelty's Counfels, and to help, firengthen, and affilt every mature that lbesuld be therein refolved, to enquire into all of fences againft the Crown and the Government, and to commit the offenders to prifon, in order that they . might be brought to trial."] This, which was the oath of the Privy Councillor, differed fearce any thing from what is now the office of that feled num ber of the Privy Council, called the Cabinet. What 'is 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 tstisti. to commit offenders to prifon, who afterwards',,,,,i, haps were brought to trial before theenfelves, 7" Learned Lord (Eldbn) had Paid, that although isS the cafes where he recommended profecuttons there was a confpiracy, not only againft the Mining go vernment, but againa all government, yet that be could conceive a cafe wherein.the Cabinet might ()e -dge a profecotion for a libel againft the Miniflers, and in fuch cafe it would come to be tried before a Chief Juftice, who was hiss felf one of them. It would lie as natural a cafe to fuppofe a libel againft the Privy Council, which might be deemed a proper fabled for profecution. The fame reafon then whieh mroald prevent a Judge from having a feat in the Ca binet, fhould alto prevent him from being a Privy Councillor, but he would venture to fay, that the ob lation had never been made before the prefent day. it was allowed, 'however, that the appointment was not illegal, and therefore it did appear to him that merely to fay it was inexpedient appeared fomething like a perfonel objection. If the thing was improper in principle, a Ball fhoold be brought in to prevent it for the future, but for his own jpart he taw no in expediency, and could perceive no other confequence likely to follow from the adoption of the motion but , she loft of the great *talents of the Noble and Learned Lord whore appointment was the fubje& of the pre .Teet difeuffion. He was not, however, much afraid of the public mind being much agitated or alarmed, with refpeet to the determination of the prefent gelation. The country was very lately in confider*. Me alarm refpeding its molt important interefts, but that alarm had confiderably diminifhed, and in a very far days he was fore would difappear, and give place to the confidence that *as due to that affem. blage of talents and virtue which his Majefty had united in Adminiliration. The people of this country were not attached to new theories and innovations, but were contented to preferve their excellent Con- Ration in the (late they found it before the prefent quenion : he was convinced the general feeling was fade:onion at finding a man of loch great abilities as Lord Ellenborough called to his Majefty's Coun cils. The Learned Lord (Eldon) had Paid, that he was pettedly convinced that the poffiffing a feat in the Cabinet would not at all influence the judicial conduit of the Chief Juftice: he felt convinced that the people at large were of the fame opinion, and that the adminifiration of juftice under him would not only be pure, but above all fufpicion. The people knew well, that a Judge exercifes his func tions under the eye of public obfervation. He could not lift up his eyes and look in the face of the Jury and , the refpedable and eminent men in the profeffion of the law, if he was not confcious of the molt perfal parity in his motives. This public obfervation was a molt wholefome and falutary check and controul , over the Judges and all the Maginrates of the land. Although the Chief Juftice might have many politi- cal adverfaries, he did not believe there were any who could reafonably entertain a doubt or fufpicion of his being influenced in his funCtions as a Judge, by his political fituation or conttations. Of the many great men who had prefided in the Court of Chancery, Lord Somers, Lord Hardwicke, Lord Thurlow, and the Learned Lord (Eldon) he never had heard the !lighten fufpicion thrown out that their condo& in their legal capacity was at all influenced by their po litical connections. And yet it appeared to him, that the fituation of Lord Chancellor was much more de- I pendent upon the Crown than that of Lord Chief Juflice. •I'lle Lord Chancellor could be removed at pleafure. The fituation of Lord Chief Juftice was for life. Betides, that the Lord Chief Juke decided innantly the cafes that came before him, there was no opporomity for private communications being made to influence his determination. He was bound to determine by a precife rule, the lex fcript2 ; where as the Lord Chancellor mull determine, in a great meafure, by the general principles of equity which were in his own breaft. If, therefore, it were to be put entrely as a queflion of expedience, lie could fee no reafon why it was more inexpedient, generally (peaking, that a Lord Chief Jullice Noold have a feat in the Cabinet, than that the Lord Chancellor fhoold fit there. For thefe reafons he felt a per fait conviction in his mind, that the motion could produce no beneficial arca ; but that it wonid only tend to preclude his Majefly from calling to his Council, many men of great abilities, and to diminilh the number of thofe who might naturally be looked to for advice and affitlance. He then concluded by de claring, that, under there imprefflons, he felt it Isis duty to give his negative to the motion. • Lord MULGRAVE profeffed to feel * high re pet for the cherafter of Lord Ellenborough in his judicial capacity, but difapproved of the idea of unit- Mg in the fame perfon the very different charafters of Minifter of State and a Judge in a Criminal Court. He would by no means with to agitate this or any other que!lion wilh a view of diminifhing the confi dence that he thought it neceffary that the prefent Government should have in, the afloat circumnances of affairs. For his part he Felt no want of confidence or jealoufy of the prefent Government, when he faw the Noble Lord (Grenville) at the head of it. There were parts of the Adminiftration which, if they flood alone, would not have obtained his confidenc*, btu.' united as they were, he faw no reafonable ground for jealoufy or diftrufl. As to the word o Cabinet" although it might have been but lately introduced, hill it was• a term that was generally nnderftood, not only in this country but all over Ectope.— The Members of the Cabinet were confidered the refponfible advifers of the Crown, and the Lbrd Chief Jullice. in that capacity, might be brought to that bar and impeached, when his pretence might be neceffary in the King's Bench in his ju dicial capacity. As a P.initler, his Majefty might be addreffed to remove him from hie pretence and Councils for ever, and yet, as Lord Chief juniee, his Majefty could not remove him, as long as in his ju dicial capacity he should conduct himfelf without re proach. It was for theft reafons that it appeared to him generally inexpedient that a Lord Chief Jolliet Mould be called to a feat in the Cabinet. As to Lord Ellenborough, perfonally, he had a great refped for his character as a Judge, but he did not know what great fervice Was to be expected from him in the Ca. binet. As to his knowledge or experience as to mat ters in law ( great as it undoubtedly was) , yet the Government did not appear particularly to be in need of that level advice, when they had a Lord Chan cellor who had loch extenfive experience of the law, and *hen they could be ailed by the advice of the Attorney General and of Mr. Romilly, who bad perhaps as much experience in equity as the Lord Chancellor had in the Courts of Law. As to general politics, it could not be fuppofed that Lord Ellen borough had more knowledge on the tubjeft than any other man in the-kingdom of a cultivated mind: His profeffional habits mutt have prevented him from giving as much attention to thefe fubjeds as other perfons ; and, in point of fad, while he had been in Parliament, whether a i s Attorney General in the Lower Houle, or as IPeer in that Houfe, he had taken very little &are in queftione of general politics. He therefore could not fee what neceffity there was for giving him a place in the Cabinet. Lord CAERNARVON replied to Lord Mulgrave. He thought it molt unreafonable to appear to fufpea any ill confequences from Lord Ellenborough hav ing a feat in the Cabinet, when even thole who ob. jeaed to it declared there was no ground of fol. picion. It had been admitted, that there was no thing illegal or unconftitutional in the appointment his Majefty had been •advifed to make; nor could he perceive any inexpediency. He was lure the public felt none of thofe apprehenlions or alarms which it was Slated that they might feel. He therefore op poled the motion. Lord AUCKLAND examined the praflice of the Connitution with telpea to the introduction of. Law Lords into the Privy Council, from an early period of our hinoter. The gift of the Noble Earl's mo tion, as we underlie:o it, was that they fbould not be of that Committee of the Council which was com monly called the Cabinet. So far from there being only a folitary precedent, ;cord Hardwiche was both Chief Judice and a Cabinet Minifter for lix months. Lord Mansfield held both &nations for fax or fever' years, in fpite of all the clamour that was railed againll him. In the remote periods of the Contlitu. tion, in the year 1300, Sir Hubert de Burgh was ac- tually Chief Jufficiary and Minder at the Fame time. Many others, and among the ref, that eminent law yer Chief Plaice Hoh, were in the habit of attend ing the Council and giving their advice, even upon &Nab which afterwards came judicially before them. Inillsort, fince the reign of Henry VIII. loch had been the practice of the Conflitution, and he was at a lots to conceive why it thould be thought fu pregnant with danger at the prefent time as thole who, fupported the very extraordinary motion of the No. ble Lord matnieined it to be. Lord ELDON, in explanation, Rated that he did not fay that he would have advifed the Noble and Learned Lord to have declined the appointment to a fituation in the Cabinet. but that he would have recommended him to reconfider the propontion. Lord HAWKESBURY Paid that the importance of the fubjeft compelled him to obtrude himfelf upon their Lordfhips. No queftion more interell ing could have been offered to their Lordthips, not merely on account of its connection with the lives and liberties of the people 'of this Country, but it was important alto in another point of view. It was one which vitally touched the very offence of the Conflitution. Before he addreffed himfelf to the queftion, he would take an opportunity of declaring, that he did not yield to any one in that Houfe in perfonal refped towards the Noble Lord, spina the expediency of whofe appointment the Motion of his Noble Friend was directed. Looking at the quef tion, as a queftion applying to Lord Ellenborough, he would fay, that nothing would afford him more pleafure than to fee Lord Ellenborough, as Lord Ellenborough, a Member of the Cabinet, though he could not bring himfelf to approve of his being there as Chief Junice of the King's Bench. He had the honour and happinefs of knowing that Noble and Learned Lord well : on many great points he knew that their opinions concurred. In the prefent Ad miniftration, to which whatever might be thought, he had no bonne difpnfition, there were many of the appointments which he approved, and into which lie flionid have confidered the introduction of Lord Lilenhorough, were it not for his fitua tioo, ac an arrangement highly deferable. He was perfuaded, that while that Noble and Learned Lord made part of the Adminifiratiou, that he would never allow the principles for which they had jointly contended to be beaten down. The quellion to his underilanding might be confidered :n three points of view; either as relating, to the Conflitu ton, as it reipened the particular inhance; or as the arguments drawn from analogy, applied to it.— He would not look for any foreign writer for the principles of the Arita Constitution, but upon ;he general principles of liberty ; he could hare no ob • jalion to toilful: Co eminent a writer as B rto Monte(quiet!. What was his opinion upon the diti lion of political power in a State ? It was this, that ft was more addable that the judicial power thould be feparated from the executive, than that the legi native authority thpuld be difliat from the execu tive. Such ton was the opinion of that admirable g ar ai ft \ o th ne e . orin F . o u r prin ciples beyond pradical utility. The courfe which f w e r l ier an ju e d x g tr e av ß i l t thoilnwriefhli.tohpeuwtha was not wife legiclator would adopt, would be to make the exceptions to his general principle, not as numerous. but as few as poffible. In this conception, there could be no union more dangerous, than that of a Judge I and a Unifier of State ; and fuch, to all inttnti 1 and purpcfes, was the prefent Chief junta of the King's Beech. He was, and of necality mutt be, identified with thole who conclituted 'What war called the Government, in danger of becoming party to al their palfions and prejudices, and giv• log him, as he did, full credit for the atmisft pit. rity, it was impoffible, that, in queltions between Government and individuals, he could be confidered as an nnbia&d Judge. Suppofe the cafe of a libel pnblithed again a the Adminiftration of the country, of which he made a part, was brought before hlmi in what an awkward fituation would be he placed; 'fitting in judgment upon an offence gamily corn mitred againft himfelft •In cafes of riot too, arifing from the dearnefs of provifions, and to fupprefs which Government might poffibly have recourfe to Rrong meafures of authority, was it advifeable that one of the Cabinet Minifters &odd be fitting as Judge to try the perfons who thould be found offtmding agrlinft; the laws applicable to loch contravention ? His Nob Friend had Rated, and truly fisted, that there wars but one inclance fence the revolution of a Commom • Law Judge ailing as a Cabinet Minicler. Why dl4l he begin his refearches front the revolution, hot for. this reefon, that it was Only from that period that t iridependence of the judges commenced. In t period there was only the lathery inflame of Lo Mansfield, for he could not confider Lord liar - wicke's cafe as a fair precedent, filling as he' did . for certain reafons of weight at the time the •eflices OF Chancellor and Chief Juftice together. With refloat to the particular cafe, if there had exi fled any circum fiances which made it neceffary, and fuch he wool/ admit might exift, to call Lord Ellenborough the Cabinet, their Lordfhips would not have heat of the precast motion. The cafe of a Lord Chancellor having a feat in the Cabinet bore no analogy what ever to that of a Chief Jullice, for the jtrifdietion of the fthoner in no degree applied to Criminal Law.— The Chancellor was removably at pleafure, becauk he was a Cabinet Miniller; neither the Judges not the Muller of the Rolls were, becaufe it was not intended that they Ihould ever become refponfsble advifere of the Crown. With regard to the argunients drawn from the two Regencies, he would obferve, that one of them was never died upon, and the others onll for a thort time. A Noble and Learned Friend of his who fpoke early in the debate, allowed that it was *either illegal nor unconflitational. He knew how, difficult it was, when once you admitted that a thing was not illegal, to prove that it was unconttitutional ; bathe would contend, that the appointment of the Chief Jake of the King's Bench, of a Common Lair jddge to a feat in the Cabinet, *as not congenial with the pare principles and predict of the Coaclitution. He fhould be forty to fee that refpat which was doe to (acted charafter of a Judge, diminifhed by tuck an innovation upon the Conftitution. Whateveenktfit ,he the deeiflon of that Houle. it could not be tot. coaled that the general feeling of the country was tagainft the appointment. . Lord HOLLAND thought much of the reafoning l of the IA Noble Speaker founded upon falfe and erroneous affumptions. In the praflice of the.Britillt &tenons, the Wield and legiclative powers wee* Often sneakily united. Did not writs of error florin the King's Bench lay before that Houfe ? Were they not, though le , branch of the Legitimate, the judges in cafes of impeachment ? His Lnrdfhip adverted to the precedents which nad been quoted, and coo tended that they were all, as well as Vie Regency, cafes completely in favour of the 'principle and lega lity of the appointment. It was Aced why the Noble and Learned Lord had a feat in the Cabinet 1 Ha would anfwer, becaufe the Elate of the country re quired it. Never had the Empire before been placed in fo perilous a fituation. Look to its fituation in the Eaft Indies, at the other fide of the Atlantic, on the Continent of Europe. and all owing to the rathnefs. the weaknefs, or the intemperance of thole Councils by which his Majefly had been direded for fo many yeari. He felt no little fatisfadion at feeing a perfon of integrity and ability introduced into the Cabinet. He could only confider the prefent motion as tending to harsh the Adminifiration which had been juik formed. Lord MULGRAVE, in allulion to an obfervation of the lag Speaker's, ref - peeing the publication of the treaties with foreign Powers, faid that. he Ihould confider it as the happiell day, of his life, wilco he could meet him on that fubjed„ and challenged hits to bring forward a fpecific motion on the fuhjea. Lewd HOLEANTI (aid. he neither g.tv e, nor would give any pledge of bringing forward any fuch pinpofition. Lord MULGRAVE offered a few words in reply, when Lord GRENVILLE rote to order, and appealed to their Lordfhips if the Noble Lord was not offering a new fubjeet of debate.—[Lord Mulgrave appearing to stfent]—his Lordfhip fpoke to the quettion.— He CA, that perfon mutt be very confident in his abilities, who could hope to add to the arguments which had been advanced in fupport of the appoint ment againft which the motion of the Noble 11 . ....tl was dirated. That appointment was no object of trite refponl;bility. If there was any illegality to be difcovered in it, if it was found to be unconftilutional, if it threw lefpicion upon the pure adminiflration of juftiee, it wan upon the perfon who addrelled their Lordlhips, that the guilt, if guilt there was attached to it, foiely and exclulively reacd. It was he who counfelled it, it was he who fuggefled it, it was he who had git en his written advice to his Majefty to that erLa. lie was glad that the fubjed had been tuhmitted to t!:c conficicration of Parliannitst. He had always tuned, in the courfe of no (bort official life, that whet:eccr any qleflion excited apprelienflon in the public n•::td, the molt advifeable coutfe was to bring it ilito fpecdy thauflion. Much pain; had been taken u; t of that Houtz to imprefs a convidion Lord SIDMOUTH agreed with t who (poke Isil, and with a Noble and (tidoti) who bad fpoken earlier in t this was a quefilun of very great i conflitdtional view. He alfu agreed Noble and Learned Lord, that rt wi the adminiftration of . jußice in this not only be free and unfettered by i that '‘he purity of it should be beym forpicion-.-and if in the prefent infix 'urged that there was any reafonable pi ion, he 'would admit that no peel fiends would make the time improp ROA. He had felt a Arong defire i Noble and Learned Lord loaner, bt vented by the riling of another s Peer however, to have heard from the i Noble a nd Learned Lord, that the goeltibn was not illegal, and that it Aitutional—neverthelefs the Noble L If he had batn Lord Chief Juftice, a feted a feat in the Cabinet, he Mould i ni to it in the fit 4 infla e, but that if it. be lboidd have rend open mo tore whfuteration oft e inexpedient that Anti. His Lordfhip (Lord Eldt bit gteit refpea for the high chant] Clalif Jullice, and had flitted that i tires of clonal regard and Maid be had i day attended in his ft ahts, that npea ft coat regard and Lora oger lattice, he could not yle inttAnt'init not the conlideration t tb .fftitthipon this oceafion. It wi tb his want', that made it necetar fend the eondna of his Majefty's cm whit rettiminended that appointmen if 'he had entertained the leaß donb pmatt being ftrittly legal, and cot CbtiAitution, and to eflablifhed pr notlave attempted to fupport it, t Ittieiviticed that, in the prefent intim hiking Nary to the country to to d tfttil the nation of the abilities tbi'd Ellenborough at the Councils ISCWite'Vbitvinced that the Lord C a 4tflinall feel great uneafinefs and !I'd di it ' ' bit that this appointment. I lifF felt furry that any do ltieep' tutettained on the fubjett, or thotnd he confidered fo ferious as to etilSon which might octailon fort ilarrnto the public mind—but as t teen Rated, and were confidered wt at the prefent moment, it was no quaint' fhould be let at reft. It i that the tendency of the objeltions made would be to fetter the feed' of the Crown, to limit the fphere of the means which his Majefty polfelli the advice of perform of dillinguiß Privy Council. Whatever would from the public Service the pea Lord Chief Jake, he thoulddeplc fatuity—but it 11111 would be a facr ri. at Id g;- lle tot in- , ch he us, sld ige nts the be, as to red lbel :ed; DM- ling lids • ong of to , init 1 nblb weeff, 112' few .o se •fer self 'Pe& mid n to card :Nor het- n of ittlre the * nded 'I of -also one • only • Id of L woa how, hing inala