The Sun. — London, England, 1806-03-04 00:00:00

d t -rea , te on this bead, tliat be had felt rio seiiiple to Sit on, the -trial of Lord George Gordon, under. Whose influence the riots had taken place, which had produced so much injury to the Public, ° and to the Noble and Learned Lord himself. He came then to the precedents on the ether.side, and these be found to be two. That House might not know who might be :Members of that .COurt ; but they .all knew from history, that. Jefferiei, who was full as good a ;Statesman as a Jude, had been in that situation, and had been removed at the instance of that House. L--- It hdd happened,.however,in a more recent instance, vben the Right Honourable Gentleman opposite held before the-same office which lie at present oc, 'cnpied,,that the interference of that House had sue.; ceeded in obtaining the removal of a Judge who, lad' sacrificed his independence by accepting an Office that made him dependent. The Hon. Mem ber moved here, that an extra& should be read from the 38th vol. of the Journals, page 97, rela tive to a Motion for an Address - to His Majesty for the removal of one of the Judges of the Supreme Court of Judicature in Bengal, for'having accepted an office dependent on the Board of Controul, Bre. which was carried in the affirmative. Here he ob served the question of salary had been entirely left out of consideration. It was only the sacrifice of his independence, by accepting a place from ',which he was • removable at . pleasure, that was made the ground of the Motion. Hisobjedion dick not apply to - the person. of Lord Ellenberough..-- 1-le knew he wasas well qualified as any man to be a Membet'of the'Cabinet; but he looked upon him as disqualified for, that situation' by his bearing, al ready the office of a common Law Judge.. He should Conclude with authorities that were tar'superivr to 'his. The first was that of Air: Addison,- who had once been a Secretary of State. By hina it had been . "that the best At which .had been passed in Lis days, .was that which provided for the inde pendence of. the Judges.' The next authority to which he should' refer was that of Justice Black stone, ..A.Tec meal hic sermo. Mr. Blackstone said, when treating of the separation of tl'e judiciol from the legislative and executive authorities, " In this distin& and separate existence of the judi-, ciat power, in a peculiar body of tuen,norninated itl '.eed, but not removable, at 'pleasure, by the Crown, consists one main preservative of the public liberty, ; which cannot subsist long .in any State unless the administration of common justice be in some degree separated from the LegiSlative, and also fretu the •Executive Power. Were it joined with the Legislative, the life', liberty, and property of the'Subjet% would be in the hands Of arbitrary Judges, whose decisions would be then regulated only by their own opinions, and net by any fundamental pritiCiples of law, which, though Legislators may depart from, yet Judges are bound. to observe. • Were it joined with the:Execu tie„, this union might soon be an overbalance for the Le'iSlature." Having finished reading this 0,3 7 .. sage, the Hon. Gentleman, m o ved hi s , R e soluti ons ,. three in, nutiaher e and to the following et e& : • :se Resolved,•That it is the opinion of this Howse; that. it is highly_rxpeilienethat Ilk Majesty's Ministers of State, And confidcAfial Advisers of Executive MeaSureS, Shoul , t be 'kepi trnall}' dist hitt and separate' from his Officers who pre side ill his Cots (it justice. Resolved, The.t.it is the Opinion Of this House, that the Alen - dim of IT, Aldj;:sty's Priv V'Cnniicil, whom His Ala:. jests directs to be liabituOly cummoned to his Cabinet, • ate; and :.re dee;ned to be, his confidential' Advisers of the E cur ;ve.klt..aso ' . • That tor't he CHO . Tusiice . of• the Icing's. Bench to be in the attcmiing on such Occ,asions, is highly pt•eisra, tending to tlidsppision of the constitutional exc_ his judi , ial tatittions, and to render the admini straticr, of justice less - satisfadory, If not "less. pure. • On the question being put on the first- Resolution, Mr. BOND.--If he rose only as the friend Of the: I\Toble Lord vtlio was the objea of this Motion, and fie was prouchu enjoy. that lionoer, he "should re-: turn his thanks to the . Ho t -ii Gentleman , who •had brought the'subj t eet forward for cEscuSsion. It was 'well kno*ii that this subject:had undergone discus-- Sion out of dodrs - ;, where it •had not been fairly con sidered.' He adiriltted, that the ohleaion to the ap 7 point ment 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 Own, that, however plausible this objedion Might appear at first, upon' being thoroughly sifted, it- wotild be found to con tain nothing real or solid. The ohje& of the pre sent:Motion was ti.k -move the Noble Person, who was the object of it, from the seat he possessed in the Cabinet. The whole tenor of the Honourable Gentleman,'s speech pointed to, that end. And at a moment of the most unexampled danger and dif ficulty in which the Country had ever been placed,. vhen it was on all :hands adinitted, that all.the wis dom, all the energy, and all the talents-of the Coun try should be united in its . service, the first question . that was brought for Ward was otie for- depriving the Country of the service of a Noble Lord o(such high talents, such eminent abilities, such great experience, and incorruptible integrity, as were 'possessed, by the distinguished personage who was the objeEt of this Motion. He admitted, that if the Noble Lord bad been called to a situation incompatible with his Judicial fundions ; if he had been brought' into an office that would impede the impartial administration of justice and the laws ; if such were the case, Tarhatever advantages might be derived from his eini, tent abilities, he would rather they, should, all be foregone, than that such consequences should be pro duced. He felt, thaethe 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 indi vidnal,- W,llO 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 Go '4:ernment at home were weak, and the channels of Justice polluted. , But he wiahed 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 hide- Pendent—if any human circumstances could insure independence--that Noble Lord could not but be in dependent. He had attained_ theThighest rank in his .prori;ssion. He stood in that proud, eminent, and exalted situation, in which' no could be pre sented to him to tempt him to swerve from his duty. Ife was a public charader too more under the ob servation of the• public than any individual in the na tion.. All the business of his Court was public, and tic'' h gi.Mer of eases snbinift,-ed decisions, than to that of • any other Cowl Jds tice. He should venturres to say, that whilst so high a .sense of mol'al reaitucle, Whilst -6.. - scru ; pulbus a regard to justice prevailed in this Coun try, no Chief Justice would ever be found to ad unjustly. He should be %lad to know what objec tion there could, be to the Noble Lord's assisting at the deliberations of the Cabinet on Foreign Afliurs, 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 perfedly true, that there might be questions rela tiVe to sedition, it isurredion, or treason, brought into discussion in the Cabinet, and that, after attending such discussion, the Chief Justice might also have to preside as Judge at the trial of the offenders. But what effed would that produce onhis mind? He de sired it to be recolleded, that no person was appoint ed to the place bfJudge till after a certain time pass ed in the profession, when be had acquired profbund learning and great experience. WaS it likely that in such a man his principles would be afloat, or that he would be led by the Cabinet? Was it not more likely that he would lead the Cabinet? (el cry of “flear! H . ear-P) lje should repeat the expre§sion. Heishould again insist,' that on questions of erinflnal law, or prbsecutions, it was likely that a criminal Judge's opinion would influence that of the-Cabi net,• and that in that'sense lie would leap tiler Cabi net. If his advice should- be acceded t 6, he Would come to the'trial without any bias ;- if his opinion should he rejected, he would not he the less influ , enced by it, and would exercise his fundion _under the obligation of his 'oath, so that in either case it Would come to the same thing. The Ho nourable Gentleman had ,adverted• to the case in which - the Chief Justice would come to the trial as a party, as in the case of 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 mis-stated that, or otherwise injured the party; he had his remedy in an appli cation for a new trial to . the Court. In cases where libels happen to be un d er the consideration of the Cabinet, a Judge need not attend, or • if he wished not to preside at the trial, be might apply to haVe another sent, and the Commission—a/ear! Hear .9—He was aware of the use that would be made of this obsevation, that of inconvenience, but he contended thato such consequence would attend the.pradice. He hoped, therefbre, that no argument would be founded on that ground. As to the suppo, sition of the incompatibility of the two offices, from the circumstance of the possibility of suspicion being entertained with respect to the administration ofjus tice, the Hon. Gentleawn stated the suspicion in the first Resolution, but gave it up in the last, where he admitted the purity. If the,purity of the admit& 'stration of justice were doubted,,then there,might he ground for suspicion ; but when that is admitted, the administration of justice must be satisfadory. A .man should ad in. the stria line of his duty. If he was to avoid a duty for the purpose of evading suspicion, he could never ad right. But - lie would ask, if the existence of suspicion, or if even well4ounded suspicion were to be made the ground of a Motion' for removing the Noble Lord from His .majesty's Cabinet, .wherher the Hon..-Gentle man would go farther ? Whether he should move to have the Noble Lord struck out of the'List of Privy Councillors ? off the List of Peers ?—Did not the same suspicion apply. in an equal degree to both these cases . Judges were summoned to exa mine prisoners,with the Privy Council and Cabinet Ministers conjointly. The Cabinet discussed mea sures in the 7absitraa. Chief Justice Holt attended the examination .of the rebels who were after wards to be tried by him ; and Chief Justice Ayre attended fer the same purpose in the Privy Coun cil, in a. recent instance, and afterwards proceeded on the trial of. thd individuals there examined. WaS it possible for a Noble Lord of such eminent and transcendent talents as the Noble Lord—was it pos sible 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 Go vernment, 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 obje& of their record ? What the end of their innova tion ? He repeated that it was an innovation.;— It had not been stated either- in the Speech_ of the Hon. Gentleman, or in the Resolutions, that.. the appointment was unconstitutional, illegal, 'or • unprecedented. It was not unfair in arguinent) 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 et ed of the Chieflas tice prejudging a case - from the discussion it might undergo in the Cabinet, that would apply equally to all Magistrates who first examined the case by, the testimony • of witnesses, and afterwards sat at ;Sessions. With resped to the authority . that bad been so much relied oir, on which the Honour able Member had laid so much stress, viz. the TM tation from Justice Blackstone, the whole of that passage was part of a..longer - one, which Justice Bladstone had.extraaed from Montesquien's-Spirit of Laws, which was a, theoretic treatise on• Gover nment. Mr. Justice Blackstone, when he copied this passage into his Work, :understood it in .the sense in which .the Honourable. dmtleman re presented 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 frith 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 Coun cil 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 Chancelfor cuts in more nearly with that of _the. Chief justice . . In. the case of. a petition of right, where a subje& is the, claimant against the. Crown, he has to de cide, and yet is nevfxsuspeded of a&ing under any bias. In ,tie case; , of Peers also, he has. great powers, for, .accot - ding , to the pre:seut pradice, . • . be igvaii ably actt 113 Lord Higi\ Siiward . . • In the reign of Edward: an Aa vc7aS . paSsed; 'aireet in, that the Chancellii: and the king's Chief Jus tice should fOryi, Majety; in order that he might not want.the adVire of Sages leart44 in the law. He h6lieved Lord HardWicke, wl'lVls't Chief Justice, bad a seat in the Cabinet. ' , He did net state this as a matter it-hat could be proved, though he had - it on the authority , of persons on whost veracity and accuracy he placed the greatest reli ance. IV this it appeared, that that Noble aid Learned Lord had not thought a place in the Cabi net inconsistent Vlth the duties 'of his judicial office. Lord Mans.aeld too, hid continued to sit in the Ca binet whilst Chief Justice from 11'57 to 1 6a.. He too did nht think the situations incompatible. It was to be recolleac;,l 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 Honse and of the Country in the propriety of the measure. , In the Sixth of. Queen. Anne, - when her dissolution was apprehended, an . Aa liad been passed for esta blishing a llegency i on that event, to continue for Six weeks , efior her death: This Regency was composed of the seven Great Officers of State, amongst • whom . her -Chief :Justice, was one. it is not to be suppc. that sudh,-a measure would have been passed withou't the L.:incurrence - 0f Justice Holt,. who was one of her justices- -It was said,. therefore, to infer, .that his, authority was in fitvour of the measure, though, he died before Queen Ames and Chief jUstice Parker became, on her Majesty's de.th, One of the Justices. He was afterwards ap pointed i one of ten confidential advisers of His Majesty George • The authority .of. that Jus tice' too was in its favour. By. the Statute of the 24th of George 11. chap. 24. which was passed in contemplation of a minority, A Regency was ap pointed, composed of five: persons, with extraordi nary powers. If the majority did not agree to the measure, Parliarnent could neither be assembled. nor dissolved, neither the' question of, Peace or Wy decided, The Chief. Justice was , one of the Connissioners of RegenCy, and yet no jealousy was felt on the subject. The ACI too, if it had taken immediate eifed, .would not , have been . of: short duration, his present Majesty's age being at that, tune 12 years, so that if George 11. had then.'clied, it would have continued for Ave years. The next instance of, an Ad of this nature was in the/sth of his present Majesty, fir the appointment of a • Council of Regency, for the care of the. descendants of the Prince of Wales, Oen dead ; and, as the Mt, was passed in contemplat:wi or the poSibility of an indisposition which Hi.; present Alajestylahoured 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 I) , st-three years of age; and it was to be re colle&ed that this measure passed, notwithstanding the effeas of an opposition that afterwards overturned the Administration, and after the same - gracious mea sure 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 or. that day started a question respecting the jealousy that was at this time sought to be pro- • mulgated. If there was any trust- to be reposed therefore ; if there was . any sacred trust to be con ferred; if there was, any degree of confidence at' a peculiar nature. to be placed , in any person, the House would resort to the Nobleman, who was the objet of :the. present .Motion, in place of excit ing amongst the Subje&s of the Country a distrust - , in the administration of justice. It should be re colleaed that this was the first time that such an etfe& had been-ascribed to such it measure. Wheh it was considered that the measure then under . dis cussion had received the sanaion of so many re- - verend, learned, and upright Judges; when it was recolleaed, that it had been aeted 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 noble object of this motion, a man of such talents, know ledge, experience, and wisdom, would have the ef feet of corrupting the administration of justice; be • 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 as cended, 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 call ing any one of his Subjects to his Councils.—After a few - more observations on this subjea,, the Right I ion. Gentleman concluded by moving as an Amend ment, That the other Orders of the Day lie now read." Mr. CANNING.----Befote he should proceed to state . the grounds upon which be shoUld support the Motion of his Hon. Friend, begged Jeave to disclaim some of the motives imputed by the Right Hon: qeritleman who had just sat down to those who should support the Motion. The Right Hon. Gen tleman had imputed - to those who should dider With him outhiq question, at a time when the danger of the Country called forth an unidn of all the talents it Possesses, and when every, acquisition of ability ought,to be hailed with pleasure, an attempt to drive from His Ma . ,..sty's Councils, and from the, public service, a person of such distinguished talents as the Nobleman whp is the subjea 'of this Motion. He should protest against such an unfair mode . of arg-u -ment. He Was as ready as the Right Hon. Gentle . mart, and he was sure there would be but one senti ment- in'the House, to admit the merits of Lord El= lenborough ; but be, could not help regretting that considerations personl- to that Nobleman had been introduced into the discussion. If,.the subjeti was worth the attention of the House, and that it was appeared evident from the admissions of the Right Honourable Gentleman, that' the obje&ion was such as to•tuake an' impression, and that it was 'plausible, -fit that it should be considered by Par liament with reference to any Chief juttice.— He thought, therefore, the imputations of the Right Honourable , Gentleman unfair towards those who supported the Motion on such grounds. There was one mode; by which, if the services of Lord El lenborough were_, necessary in the : Cabinet, they 'might have been obtained without any objection whatever, and that was by his ascending that other sty, which was to place him at the head . of his pro fttsion.. kie . was sure; after the panegyric pronounced by rI t 3 Right at of}t~hltueiitle'rxtait; 4'6'6 cues and indeptndence of that Noble Lord, lip 6trikl not suppose him to have been actuated ii ibis 3efi~sal Of that last step, by a wish to ding to a place fet life, rather than to accept it precarious on'iy. The .Right Hon. Gentle Man gli!C;rifed to think, that hit pot, session of his place for life placed him above ail :temptation : he also Seemed to think that tilt place . of Chief Justice Nr4's ;more estimable than that Or Chancellor. The objection that governed.his nion On this Subjta was, that by accepting a place from which he was remove'able at pleasure, he, did away all the b6nridence that Was, prodtrced by the 'independent tircutustauces of his other office. Was it intended to be•urged or argued, that the fear of his removal from the Cabinet wotild have no effeet on a Chief Justice ? Would it be. conte:Ated, that a seat in that Cabinet was not an oh:;ik.l of arribitibe; and of ardent ambition ?If ever there was pe- Tiod that proved that more than any other, it war; the present : he believed there never had been an instance in which such obje&s had .been pursneel with so much ardour and anxiety. No man thiit• had read the Newspapers of the day, or heard the conversations of the people in the streets, that was not sensible of this. It was not fair in eierunient to make personal allusions; but in proqf that a seat in the Cabinet was an objed of p etsoual ambition; he ,could• name' four whose seats had been under discussion, and mooted. When sueli had been the case, could ft be said that such a distih&ion was not an object of personal ambition, or that the api prehension . AC losing it would not have an effea, upon a mind that sought it with such avidity? He agreed with the Right Hon. 4 Crentlernan in his warm panegyric upon the pure Administration of .. .Justice which this Country hid to boast of the peculiar, advantage of •our Constitution, which had stood tin- . impaired amidst the Chock of parties; and• survived arid flourished even amidst the troubles and distrac>= tions of Rebellion : he aded not on the authority of books, but oh the universal feeling of the Cuun-, try, which ought to be respeded'oy preserving system, the salutary effects of .which, lie hoped ; nothing - would be done this, day' to disturb. The. Noble Lord, who was the immediate subject of the Motion; was in the AdminiStrationnfain @thee that required all the intelligence and all the feelings of which a man was capable: One may surely say, that the Noble Lord would fi nd full scope tor all his high ta lents and qualities, confining them to his proper station. What he particularly' complained of vas, I hat ' - the Bench of Justice, instead of being looked up to as the summit of elevation the law afforded, was to be' by the precedent of the Noble Lord's -appointment, constituted the spring of a new ambition, irom which those who had altered it, were to start forward or a new career. Henceforth the. study of the law would be cultivated - for the attaimmeetof.a Chief Justice's seat, not as a chief objed and a eln'ef dis tin&ion and reward, but merely as a step in the lad der of .promotion, and as facilitating the atcess to greater honours. This was an evil so great to the constitution, that it conic' not be permitted to establish itself without the utmost mischief, It was no ob je&ion that it was not to be fonnd directly prohibit ed in the books 'of law, or the statute books. It was an evil so striking, that every mind must be im pressed with a sense of it ; and if it should not be checked by this Motion, it would at least be ulti nantely mended by the refledions which the discus sion of this nightwould excite in. 'every mind, and the exertion it would give rise to for doing the mis- . chief away. , One great objection he had to the ar rangement that had been made was, that according to what was - urged by the supporters of it, the set-.' tlementef the independence of the Judges was not so necessary as bad been heretofore thought; for when their acting in,day-light in open Court, was stated to prove the imposSibility of their a&ing wil fully wrong, this amounted to an argument against the Bill that secured their independence. As Podia merit was bound to leg islate with jealousy against the evil propensities of human nature, the.charatier of the individual was not to be taken into the ac- count.. It wasessential to the due. administration of justice; that a Judge should not be called upon to • decide on his judgment seat what he had already decided in the Cabinet as a Minister. 'This mischief was particularly like to happen in the case of prOse cutions for libels on the Government. The Hen. and Learned Gentleman on the other side represented the . Judge as nothing, the JUry as every thing, and. held forth a new trial as a remedy fOr any possible mal versation. The FlOn. Gent. himself held a judicial situation, and he would ask him, was he such a per fedt nothing in it as to think this a sat:stadoryeensvver to an objection, felt deeply, notin that House alone, but throughout the Couutry,in such a manner as not to require a satisfactory explanation. He did not look upon it as sufficient security to be told, that,in cases • Justice to come before him hi judgment, the Chief Justice would-either not interfere as - a Minister, Or not sit as a Judge. Of the two; he should prefer his absence from the Cabinet. The Honourable and Learned Gentleman blamed the moderate tenor of the Resolutions, and Was dissatisfied that they did not go further. The thing was not called iliegal, because there was no law on the subject---"it wa4 not called unconstitutional, becanse What was consti tutional was not defined, and . every one explained. it according to his own view. The Motion stated with truth the inconveniencies that would result from the appointment, and therefore that the appointment was unadvisable. The public feeling that had so strongly manifested itself on this-peint deserved the highest consideration : and it was not a light thing that a sns picion manifested itself abroadou so essential a point as the due administraticin of the justice of the Coun try. It was no to be supposed, as the Hon.Gentlemn said, that ahy person would suffer himself to be di verted from the perforphince of his duty; by the consideration ofa false suspicion ; bat a strong pubic feeling was a just ground for' 4egislative attention, and for the re-consideration of an arrangement not generally looked tipoa as satisfaaory to toe ends of public justice: It was well-known that there were , every day verdicts give-n consonant to law, and tht.i principles of justice ; yet if any thing came out af terwards that served to spew that the whole of the case had not been fully weighed either by the Jury, or by the Judge, and a new trial was granted, and a verdid given on the opposite side, 'neither that Jury nor that Judge would be so li?efily looked upon as before. The Hoeo ra.de Gentleman not only complained: that the ,Resolutions were mo derate, but still further, that they contained no- Thing but What could be proved. He complained, e\ ffi