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

t .C . ( INTVAIBER 4202.] IMPERIAL PARLIAMENT. HOUSE OF PEERS. MONDAY, MARCH 3. A Naturalization Bill, and some of the Public Bills on the Table were read a second time. The Marquis of ABERCORN wished to call the attention of their Lordships to the case of Mr. Justice Fox. On a former occasion, when he rose to move, that the witnesses in thil case be ordered to attend cn the 28th of April next, a Noble:Baron opposite to ti 6 (Lor d Grenville) expressed a wish that the MOtion should be deferred for a feNNt days, that Noble Lords might have time to consider when it would be 'niOst 'convenient to take steps. He then acquiesced In the suggestion of the Noble Baron ; but he was at lo,s to see. _why there should.. be any wish further td delay it. Their Lordships mast be sensible of the ;iukward, the unseeming dilemma in - which the Learned luttaT: must be.placed: they would continue to hang over him the terrors of this ea, communication ' • they would suspend him from the exercise of his judicial funCtions, or send him to the execution of them under circurnstances which could riot well give weight to his dbatatter or his opinions. The Noble Marquis was therefore at a loss to see `upon what ground any further obstacle or de- lay should •be thrown in the way of the progress bf the business. His intention, therefore, was to move, that the principal witnesses be ordeted to at tend at the bar on the .28th April neat. Lord GREIVILLB confessed, that he had not yet made up his mind upon the subjeet, though he would not oppose the present Motton. Yet it re quired much consideration how to proceed in it ; and while he abstained from making any opposition to the present Motion, he should hold .himself justified, either lat protest, or reservation s to take such steps in the business as further consideration of it might suggest. The Marquis of BUCKINGHAM and Lord Aucx, LAND contended, on the ground of their former arguments, that the question should never have been brought before that House. Lord BUCIUNGII A MULIRE and Lord Iltwxesnuttir Were rather of opinion, that as it had been taken up by their Lordships, and so far advanced in, it would Tow be unfair to the individual it concerned, and in consistent with the consistency and dignity of their Lordships' proceedin o c , s, canselessly and abruptly to give it up. After a few more observations fiom the same Noble Lords, the question was put, and agreed 'to without a division. LORD,ELLENBOROUGH's SEATIN THE CABI- NET. The Order of the Day, respelling the intended Motion on.this subje&, and upon which their Lord ships had been summoned,' being read, ,Tlte Earl of BRISTOL rose to make the Motion of which he had given notice. In stating, he said, the grounds and reasons of his intended Motion, he trusted their Lordships would dp him the justice to belieVe, that be was not aetuated by any narrow sen timents or party feeling, but that he was alone in fluenced by his veneration and regard for the Consti tution, and his anxiety for the public welfare ; nor would he have brought any Motion forward upon the subje&, could he have succeeded in those endear tours 'which he repeatedly made, to induce His Majesty's Ministers, by private application, to retra& the measure which had caused.so much anxiety and distrust, namely, the appointment of the Lord Chief Justice‘of the Court of King's -Bench to 1..)e one of Majesty:s' Cabinet Ministers. Failing in, these efforts, he considered it to be his duty to bring for ward a Motion upon the subjeel, not for the purpose of embarrassing His Majesty's Ministers, or imped ing their measures, but in order to bring into dis cussion a great constitutional question. With re- Speet to the question itself, it had been admitted that Lord Ellenborough was one of the Members of what was called the Cabinet, in support of which 'measure only one single solitary precedent could be quoted, which-was the case of Lord Mansfield, with respeii to whom it could not be doubted, that the very circumstance of his being Chief Justice and a Cabinet Minister at the same time, clouded the lustre of his name, and laid him peculiarly open to attacks to which he otherwise would not have been liable. Such a measure, in its principle, appeared to him to be utterly unconstitutional. That which gave even to the despotic Governments of Europe that charaEter of mildness which was unknown to Eastern despotism, and that also which so peculiarly chara6lerized our own happy Constitution, was the separation of the judicial and executive funaions. The separation of the .judiciial from the Legislative and Executive Power .had always been considered by the best and most estecmed,,writers as essential to the existence_ and maintenance of public liberty,' and the welfare and happiness of a State. On this subje& Montesquieu had dwelt with peculiar em phasis, to prove the proposition which he had just 'stated. To blend and amalgamate in the same per. 'seri the judicial and executive fun&ions, must in many cases be produaive of the most serious conse quences, not to say . positive evils, whilst,• at the sane time., the Public could never feel satisfied with the justice administered under such circum stances. The Chief Justice of the Court of King's Bench might, as A Cabinet Minister, concur in or dering a prosecution to be instituted against any per son fora crime against the State, whom he was afterwards to try in his capacity of Chief Justice. Nor was this all ; he might, as a Cabinet Minister, concur in ordering a prosecution for a libel upon His Majesty's Government, • or, in other words, upon His Majesty's Ministers, and afterwards, as Chief Justice, have to try the very person against whom he had ordered a prosecution, and this too fora libel upon himself, as one of the King's Ministers. He might be told, that the Jury would in that-case decide on the guilt - or innocence of the person accused; • s TUESDAY; MilitcH 4, 1806. be it so; but was not afterwards the measure of punishment to be meted out by the very Chief Justice who was himself the party libelled ? He might be told, that a Chief Justice in such a sitna: tion might absent himself froth the bench 'on such a trial; be it so; be wished for no- better argument against the pra&ice of appointing a Chief Justice a Cabinet Minister ; it must be the ease in some in stances of his deserting his duty as. a Judge. He protested against the dangerous tendency of such a principle, to the extension of which, if once admit ted, there could be no limit. If it was admitted that the Chief Justice of the Court of King's Bench might be a Cabinet Minister, the same principle might be extended to all the Judges of the Courts of LaW, who might all in the same manner be appointed con fidential Ministers of the Crown, And all distinaion between the judicial and executive functions be thus completely at an end. He begged that in deliver ing these opinions, he might-'ndt be supposed to involve any thing personal to the present Chief Jus the, Court of King's Bench; cha raaer he had the highest respea, Far be it from him to suppose for a moment, that the condua• of that Noble and Learned Judge, as a Judge, could be in the slightest degree influenced or' warped by his situation as a Cabinet Minister ; on the con trary, he was thoroughly 'convinced' that justice could not be more purely and impartially administer ed than in the hands of that Noble and Learned Lord. It was not enough, however, that he was of this opinion, or that their Lordships were of that opinion, but the Public should also be satisfied that there was no ground for suspe&ing that justice might not be duly administered. His ideas upon this sub je& were sanaismed, not only by foreign Writers, amongst whom he had already quoted Montesquieu, but by an eminent Writer of our own Country, Judge Blackstone, who had expressed himself clear ly and decidedly Upon the subjea; and who had stated, that the judicial ought to be kept entirely separate and distina from the legislative and execu tive funaions, in'order to maintain the Constitution, and preserve entire the liberties of the people. He concluded by moving, . . " That it i; inexpedient and derogatory to the-constitu tional administration of justice, to summon to any Commit tee or Assembly of the Privy Council any of the judges of His Majesty's Courts of Common Law," Lord ST. JOHN rather thought himself called upon to return thanks to the Noble Earl who had brought forward the Motion, than to impute to, him any intention either of hat assing the present Admi nistration by the introduCtion of it, -or of dissemi nating any uneasiness or dissatisfaCtion throughotit the Country respe&ing the nature of , the appoint ment against which the Motion was directed ; for to him it appeared to affbrd a wished-for opportunity of removing all the' objeetions that had been urged agaiort it, and of silenc.:l4 every alarm which the._ appointment could possibly be supposed to have made. He therefore even ventured to hope, that from the progress and effe6t of the discussion, the Noble Earl would be induced at least to withdraw, if not to negative the Motion. ,But he could not help ekpressing his surprise, how. the Noble Earl -should have so repeatedly,, and so emphatically as serted, that there existed only one single precedent to justify ,such an appointment ; there surely were many. *He had, however, first to complain, that the question now brought forward was merely an abstract question. It stated the existence of no real evil ; it dwelt , only upon the apprehensions that some evil might result from it. , And indeed, by the arguments adduced by the Noble Earl, it is evident he alludes to times of a very different complexion from'the present, and therefore they by no means apply : while it must be obvious to' every candid mind, that to agitate a-mere abstra& question of such a nature, at the present moment, is not-only idle, but injudicious, and may give-rise to difficulties of which the Noble Mover does not seem to be aware. Such questions should not be incautiously and wan tonly indulged in. For his part, he looked only to the Statutes for the Law of the land, and if he found that they warranted the appointment in question, and that there was no room for public alarm - respeeting any thing unconstitutional in its na ture, no discussion of a mere speculative nature should prevent him from giving his negative - 1p the , Motion. Such a question might be met with in other speculative questions of a similar tendency, ' that would render it wholly absurd • but he should not have recourse to any such modeofargument ; nei ther should he ransack former times for precedents to substantiate the propriety of the appointment. He would refer to the precedents at . the time of' the Revolution, and subsequent to that period. These were precedents which the Noble Earl did not even deign to glance at. He should refer the Noble Earl to the authority of Sir Edw. Coke, and there he would see, that not only ,the most eminent Law yers were at times consulted upon matters of law, but also on the gravest matters of high. State pc,- Bey. To consult the Chief Justices of- the Bench on such points was then no' novel matter : in deed, they were often found to be among the chief, Advisers of the Crown. The Noble LOrd then took . -a short review of what regarded the question from the time of Edward III: and argued, that through out the whole of the subsequent period the Privy Council was constituted nearly.as it is at- present.— The number constituting it might vary at diffeient times ; but at all times a Seleaion , or Committee from it had a voice on all State matters. Let the situation of Sir Francis North be,recolleaed, and that of almost-every one of the Chief Justices of the Common Pleas, all ofwhcm, invested with the same pretensions, were Members of the Privy Cotrril.— Indeed'it was then, a sort of law. • If he referred to the time of-Queen Anne, the same praeliCe prevailed, and the same inferences were deducible from it. The Lord Chief Justices of both Benches were ;ippointed members of the Executive Governinent ; andeven,in' the present reign,. a Chief Justice of the' King's Bench was amongst- His Majesty's principal advisers. Nor was the' else reduced ,to the authority of one single precedent, especially when the Noble Earl took into account the situations held by Lord Chief JUstices Lee And Loughborough. But if arguments of a similar tendency were to be looked for from ana logy, they would occur in abluidance. If a Coon sg.l happened to have pleaded in a certain cause ; , and having, in pleading it, delivered an opinion upon its merits, should that Advocate ; if afterwards' he was called to sit on the Bench, be precluded and render ed unfit to pronounce ultimately on the same case. Even a Country Gentleman, who aeled in the capa city of Magistrate, and who consequently took evi dence upon such cases as came before him, would, by this dotarine, be prevented from giving his assist-, ance and advice to the Judges upon the Circuit, which, however, he was iir the, constant_ practice of doing, detniing it his duty so to do. Upon a gene ral survey;therefore, of the question, there could he ,found nothing in precedent, or. in praaice, or in analogy, that furnished any just ground for the Nt.;-) 1 e I:_arl'o , ,kotion, and he therefore conivived a well-founded that, upon maturer considera- Oon - , the Noble Earl would withdraw it, Lord ELDON would not take up the , question in any light or bearing but that of its own intrinsic im portance. He should not, 'therefore, argue it with respe&- to the present or the late AdMinistration, or , under any personal or political bias whatsoever.— . SOoner than be supposed, from any thing that should fall from him, to be aauated by idisrespect towards the Noble and reeiimett Lord. whom it more immer diately concerned, or any ether .Noble .Lord, he_ Should wish to have been absent altogether from the discussion. But he rather felt himself bound in duty to be present,-and he was also present out of respe& for the Learned Lord, far whom, for thirty years of his life, he had entertained the most sincere senti ments of affeaion and esteem.; but now with re- 7 gard to the nature of the appointment which the •Noble and Learned Lord had accepted, it was a mat ter of extreme delicacy to say that the acceptance of it was unconstitutional. It was acknowledged not to be illegal ; but, perhaps, what was legal might not always be constitutional, and vice versa; , hut on these points'he protested he shoiild rather appeal to the judgment and the conscience of the Learned Lord himself,-and abide by his decision. He was confident that that Learned Lord was as sensible as he could be, that it was not merely the - simple ad ministration.-of justice that could secure, the rights, and satify the minds of the people ; but that they looked, and anxiously looked, to its pure, disinterest ed, unsuspe&ed, and satisfaaoryadininistration, and' that frern such principles alone, they-Would confi- , dently and implicitly rely upon the due preservation of their rights and liberties. i Such were his feelings and opinion respeaing the character which the ad'. ministrators 'of - justice should be believed to possess, dit alat, he wad equally' ti :-.t - IA-ied, :I':. , the gnati. meats of his Noble and Learned Friend. The. N obl- Lord who spoke last seemed. to advert to many precedents and analogies that bore upon the present case. It Might be proper to examine into some of them. Lord Mansfield, it was observed, had been a Member of what is called the Cabinet : he was 7— Wit is it not equally notorious that this very circum stance hung like a weight . upon that great man for nearly 30 years of his life, and that his opinions re speaing the Habeas Corpus had created a jealousy not easily allayed. This, no, doubt, should ground no suspicion that his condu& was rather influenced by his capacity of Minister, than by his capacity as Judge ; but still it will ever be expected, that the administration of justice shall never leave any room, for doubt or suspicion. His ideas on this point would surely meet those of the. Noble and Learned Lord whose situation was now considered if lie were present, and satisfied he was, that he would express the same sentiments. On the point of the expe diency Of the appointment, much also might be said. When he in his capacity of A.ttorney-General had to contend against sedition and treason, had those • cases been tried in the Court of King's Bench, what would have been the condu& of the Lord Chief Jus tice had he been a Member of the Executive Go vernment, or' of what is called the Cabinet—must he not have been puzzled how to a& 1. Were ho not to attend at the Privy Council, where evidence was taken on these cases, then you would have, made a man a Minister wiel did not perform his duty as such ; or, if he did not attend the King's Bench, then he would have omitted his duty as a Judge, when the chara&ers, the lives, &c. of his fellow subjeas were at stake. Were he in the situation of a Minister, must. he not advise the prosecution of libels, not only upon .the Ministers individually, but, libels upon the Constitution itself, lapels all regular Governments, and the very existence of all social order; but should he be called upon', like Lord Chief Justice Eyre, first to be consulted on the steps to be taken, and after to sit in judgment upon the persons . accused, he should feel reason to .hesitate ; indeed he could never think that condu& the most honour-r able part of 'that Learned Lord's life. In his situa tion, be might now be summoned to assist in the same manner at the Privy Council, and take exami nations in cases of a similar nature ; bUt though he sliould be so summoned, he should not expe& to be offered a seat in the - Cabinet by the Noble Lo,rds op- •. posite him. Were he so situated it would materially alter the' case, and the same feeling must, no doubt, enter the mind of the Learned Lord ; 'and thet was= the inexpediency which such a situation involved that weighed upon his thoughts, and which he could not possibly forbear stating without a dereliaion of his duty: He stated this, however, not as a censure, but as a refleaion.which he wished might be pressed upon the attention and consideration of the Learned Lord'himself, then he sholild think there would be no necessity for the presentMotiOn. Lord CARLISLE could not help thinking the Motion riosiibefore. the House as wholly uncalled for, excel by !: desire to throw censure on_his Ma jesty's present Ministers, who have advisedhis Ma-, ~+J :c 'r. [P LICE STYPENTZ; jesty, in the exercise of his undoubted ptercigatiVes to appoint the Learned Lord one of his irrimediate Council. Such aiiTettempt to lowee the considerae tion.in which the new Government was held, to dis Courage the confidence which they had inspired throughout the -Country, to ,cloud the expe&a- Lions Which were so justly raised, by seeing such • a combination of the talents, of the ex; perience, of the integrity, and the wisdoth of the nation, brought to co-operate for the public good, could be the sold obje& of those who framed and introduced the present Motion. The uneasiness and alarm supposed to-be excited by such an appoint ment can never he conceived to he the sole grounds of such a measure. Has such an alarm ever teeth heard of for an hundred years back, during which similar appointments, have taken place ? He at feast never heard of such uneasiness ; but-the Motion does - not go to the cure of the evil it :supposes—it merely tends-to prevent the best lights of the Country from being consulted in the . Privy Council, because they might afterwards be called upon to try the cases upon which their opinion hed previously been taken: What effeet-could this. have, but to upset the very foundation upon. which the Privy Council rests t and to :hinge the character 4 the members, of whom, according ,to Sir Wen: Temple's advice,. it ought always to consist. What would thiS supposed inexpediency lead to ? A Counsel, who had pleaded ite any cause before the e Courts could never after sit as a judge to try it. And all the Judges, even the Chief Justices of the two Benches, would be ex cluded for ever from his Majesty's Council's. This is tees absurd to be seriously discussed. Indeed, tho Ugh the Motion were acceded to, it would be nothing to the purpose. Lord BOBINGDON contenddd that no person was properly a Member of the Cabinet who was not responsible for the measures he advised. But the, Judges had been made independent, and that by a very wise A& But of all the absurdities which have of late years been broached, and endeavoured to be defended, was surely the double capacity in which the Learned Lord was now placed. He may sit to day in a Court, *and be supposed as a Judge to ad minister justice with the utmost purity, while to morrow he may be impeached, as a Minister, for the most corrupt practices. After being one day_distri buting justice to others, he may the next be standing at your Lordshipe bar to defend himself: He meant nothing disrespeaful io what he had to offer : nor was he inclined, to fret and fatieue Ministers, who had such ponderous interests to attend to at the pre sent Moment ; but this was a question which should not•be overlooked, and which, an his mind, involved, every thing that was _revered and sacred in the ad ministration of justice. Lord SIDMOUTH concurred , with the Noble Lord, that it was highly necessary that the admini stration of justice shonld not only be pure, but un suspeaed, and that no pressUre of circumstances should relieve Government from the care of attend ing to this particular. This, however, was certain., ly not a case in which blame could attach to for a neglect of their duty. The Noble and Learn ed Lord who had spoken from the other side, had declared that his motive for coming down to the House on this occasion was personal respe& to the distinguished individual whose introduaion into the Cabinet it was the obje& of the present Motion to Censure. For his. part, he had as much personal re specl for' the individual alluded to as any one ; but it certainly was not personal respea for him that brought him on this occasion down to the House it was the duty which he conceived he owed to his Country. Had he any doubt of the propriety of that Noble Lord's sharing in the Councils of His Majesty, he would not hesitate to declare it, altho' it might tend to deprive the Public of the advantages of his great talents. and services. Giving every pos sible credit to the Noble Earl for the purity of the motives which had induced him to agitate this ques tion at the present moment, he must at the same time separate the intention of the Motion from the tendency; and while he praised the former, declared that he thought the latter calculated to fetter the legitimate authority of the Sovereign, and limit the means which the Government possessed of serving the Country. Lord Mansfield was not the only instance in which a Lord Chief Justice occupied a seat in the Cabinet. Lord Hardwicke had for a pe riod of six months held conjointly the offices of Lord Chancellor and Lord Chief Justice of the fling's Bench, and at the same time was a Cabinet Mini ster. There were other instances in point. By the fourth and 'fifth of Queen Anne, Lords of Regency were appointed, who exercised, their funCtions after the demise of the Crown until the 'arrival ,of a Successor. These Lords were seven in number, nominated by the Parliament, of whom the Lord Chief Justice was one ; and these great Personages were sele&ed expressly because they were in the confidence of the King and Queen, and in the se crets of Government.- ; [le wished to know the dis iinaion between the Privy Cpuncil that Com mittee of it termed the Cabinet. The oath of the PriviCouncillors bound them to secrecy, and it was therefore to be inferred 'that 'matters of • moment were submitted to them. With regard to the in consistencies .arid difficulties of • which so much had been said; he would suppose, that instead of the treasonable cases imagined by the other side, a libel was to be published against the Privy Council- r -- Would the Lord Chief • Justice be, therefore e in competent to sit in judgment on the libeller be cause he was a Member of the Privy Council ? Or, were a libel to be published against this House, would the Lord Chief Justice be prevented from sit ting in judgment on the libeller • because he was a Member of that" House ? Such a principle would lead into inextricable difficulties. The Lord Chief Justice Must abandon his seat in the Privy Council and he that House, and the Welch Judges must no longer be. allowed to be Members Of the House of Commons.. The impression of inexpediency that . - . 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