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

--f that/enough was.-not done—if the Rescllution did not go to deprive the Chief Justice of his. Peerage, or - his place in the Privy Council. A Resolution of , the Commons could not rescind the Patent of Peer age'; but the introduaion of the Chief Justice into the House of Peers was by no meaus.necessary, nor always pra6tised. It was stated, that the Cabinet was only a term in common usage that it was not to be found in any statute, nor in any book of au thority : it was only a Committee of the Privy Council like any other Committee,- and, therefore, not a subjeEt of Parliamentary consideration. This was a doftrine of the most whiinsical and most un tenable nature. Would it be admitted in, a free Country, that the body possessing the chief controul of the State—a body seen, felt, heard; and under stood-by every one, known 'out of doors by every one, was to be known within doors by no one ? That though the cabinet, as containing those.sele& 'persons, entrusted particularly not - only with the Executive Government, but with particular privi- I.;ges and. opportunities of advising the Crown, was known to the Country and to Foreign Powers, though all England'obeyed it, though all Europe re cognized it, though it was well known in the lobby, should become totally unknown the moment the Members Entered the HouSe. The Hon. Gentle- man on the other side said it was impossible to know who Cabinet Ministers were, except by bits Of paper casually found.with their signature. The Hon. Gentleman may sport with these refinements as he pleased, but he must come back' to this, that the Cabinet' should be known, and responsible to Parliament, as well as the Country. _ Tgcould not be snared to exist as a mere-poetic fididn, vanishing whenever it should s he. sought for as a reality. He supposed Lord Ellenborough did. , not stand in the situation of a Judge summoned to give advice on particular - points, but constantly summoned, and therefore -united if responsibility and , identified with the Cabinet.. It was therefore impossible that he should in many important cases go to judg ment with a mind so perfedly clear of impression as impartial justice would require it to be. The in stances in which the Chief Justice had been appoint ed a Member of the Council of Regency stood on very distind' grounds from the present case. Where the obje& in view was to preserve the rights and pre rogatives.of the Crown, in the absence or the Minority ' of the Sovereign, it was right to mix permanent Judges with the persons to whom the charge was entrusted: But that was a very different thing from mixing them - with party politics -while the King was living. The ease of Lord Hardwieke; he understood,. was given by the side Honourable Gentlemen on the other (" No, nor). If _it was not given up, little reliance could be placed on , it, as Lord Hardwieke, on his appoiutment.as Chancellor, held the place of Chief Justice only till a successor was appointed. The ,place of Chief Justice of the common Peas was la6lcl in like manner by Lord Eldon, in conjun6fiou with the Great Seal, for two' months, till a new Chief Justice , was appointed. Lord _Mansfield, in the'last years of the reign, and a few e'f the first 'years of the present, had, it was true,, a seat in the Cabinet. But fir from being sanctioned by Parlia ment, the faa, when disclosed, was received -withv surprise and censure. It had been frequently touched upon in the House of Lord?; as a thing suspeaed, and when it was disclosed,- it was commented upon by the ancestor (Lord Shelburne) of a Noble Lord apposite, that - he could not withhold citing them.-- Lord Mansfield, on being queStioned by the Noble Lord he alluded to, acknowledged that he had been n _Member of - the Cabinet; hut that he had prayed His Majesty to excuse hiim; and for a long time ceased to attend. This showed that the fad was not known and recognized, and that when it was acknowledged it was received with surprise.' There was therefore no ground to cry out upon it.so exult ingly. He would now read the observations of 'the Noble Lord he had alluded to upon the confession : " The Noble and Learned Lord has then confessed that though he is not now as Merhbei- of the Cabinet, there was a time when it was otherwise, when he united things the most opposite in a constitutional Kuhl, the characters of a Judge - and a Cabinet Mini ster." Such were the remarks made upon this union, by Lord Shelburne., The Nol;le Lord observed far 'titer, that the great excellence of the British Consti tution was, , to keep the executive and the judicial power as distina as possible, 'so as to prevent the same. I.,,ersonfrom advising in 0112 capacity what he was to execuee in anether. Thus the argument of acqui eseence and approbation fell to the ground. No one could speak of the transcendant talents of Lord islansfield without admiration; .But he would ask any mai4 versed in the history 'of the times, who= the: Lord Mansfield's talents would not have been rtl,-ire _unsullied, and his life more useful, if he had i:et mi:a*.d the funaions of a Politician with those of the Judge. In the latter period of his life, when his matures ju s dgment had corrected the ambition of his earlier years, the Noble Lord himself felt the impro priety, and abstained- from attending the Council. If this constitutional hold was once abandoned, it would be renounced forever. • There was no excuse • f:r the appointment but necessity or expediency. There was no. necessity, in this ease; and the exPe dienex was far from being such as to warrant the Proceeding. There was no analogy between the situation; of a Chief Justice in the Cabinet and that of aLe d chancellor. The Lord Chancellor was re vmeable from his office at the pleasure of the . Crown, or in case of malversation, by address from both Houses of Parliament. But what would be the situation of the Chief Justice, if he were even to say ?ll the Cabinet, that the Law of Nations was rubbish not to be aeeed upon : he hot ed 'such an opinion would not be aded upon. But would the Chief Jus tice he removed for having given bad advice as a Mi nister ; or would he, because he was a Jthige, be tolerated As a Minister, after-having given such ad vice ?'The dileMma was inevitable. As the privileges of Parliament and the rights of`the People were ve ined, this association was to be deprecated : it was to_be deprecated also in regard to thi! prerogative of the Crown, to which nothing was more hostile than au irremovable Cabinet. ,The . Noble Lord was in a situation to do honour to himself, and ,essen tial service to the Country, by the steady applica tion of the talents he undoubtedly, possessed, to the of the high office he properly flied. But if he were called to other situations, the duties of which 'may often clash, and sometimes d!cl clash with his judicial funaiens,'while they impose bUr, th ns that must necessarily take away his attention *lean them, he was necessarily made a less valuable judge by being luacte,an in4driti,ate Minister, art Tie was ci'he..esly - sTairist flag appoitnesst.Lana iPscclii')ie4f. Noble 0 81 b U ie LOrd logy9vwere erteh s e s e , axv worst oiequallytres excited i il na t unfavourablenature. He cua see ,itestimated v o o i u t , l d and thebe very highly—but if the whole benefit- of - the ta lents• of the highest individual as a Cabinet Mi nister were summed tip, it would, in his opinion, be dearly purchased by one hour's suspicion of any deficiency in the administration of justice. • Lord TEMPLE gave credit to the supporter* of the Motion for having no personal motive in bringing it forward, and for agitating it only as a constitu tional question,which they would have brought under consideration at any time, and under any Ministers. -He regreted, however, that when in making a Mo , ,•tion to remove an, individual, an attack was to be 'made on the King's Prerogative, the Mts. Gentleman who brought forward the Motion dienot weighbet ter the authorities on which it Was ibunded. He al lowed it was the right of the House to exercise its discretion as to the dvls b ree of confidence ,it 'would place in any Ministers appointed by? the Crown, but it was always more fair to object generally to an Ad- . ministration than to any one member of it. Refer ring to every part of our history since the formation of the Constitution, no such thing as a Cabinet Council was known or recognized. • He did not mean by this to diminish the responsibility of any one .of those of whom the Cabinet Council consisted, • but only to put it on its proper grounds. It was not till Charles the Second's time that a Sele& Corn mittee of the Privy Council was specially consulted on the affairs of Government ; .and the King recosol niziog the prance as an innovation, promised in .ft.- tore to consult the whole Council. When Queen Anne was. on her death-bed; and a Sele&Committee of the Privy Council sat regulating the succession, the Dukes of Somerset and Argyle came into that Tory Cabinet, and insisted on 'and enforeed their right,.as Privy Councifiors; to be present at its deliber ations and proceedings. The Cabinet Ministers were responsible for their condua, and their advice; not, however, as Cabinet Ministers, but i ifrespea of the of fices they held, and as Privy Councillors. If the resolu- ' tions were to, be carried, and Lord Ellenborough to be removed from,the Cabinet, still the object in view would not, be attained, as the _Noble . and Learned Lord may advise the King,as a Privy Councillor and as a Peer, without any restraint whatsoever. If the object in view was to reform and innovateon the Con- stitution, let it be stated openly; and the House would know how to estimate it. It was impossible - Mr. Jts ' tice Blackstone - caild mean,- as he was construed-to mean by the Hon. Gentleman opposite, that the King Was never to advise With the Chief Justice. ,The over to try offenders was held by the Judges from the Crown, and as•to the impropriety and inconsistency which the Constitution supposed to exist in a Chief JuStice having any concern with judicial pro- • ceediiigs, till they came judicially before him, he would only advert to what was done in a recent case, 1 as well as in maliy formerones. Did not the Chief 1 Justice attend .at all the examinations before - the I Privy Council on the case of Gov. Piilon, whom he , afterwards. tried ; and did, any body think of ob- jeaing to that' on consitutional grounds. When i the Judges sat in 4anco on the - decision of - one .Judge at Nisi Prius, that one, Judge sassemong them.. The Chancellor in the House of Lords presided on - appeals , from his own decisions. The principle' of the Motion would go' the length of 'establishing that no Peer could be a Privy Counsellor, no Privy Coure seller a Peer, because they might give advice on what they may afterwards be called to judge. On the ex amination of the R bel Lords in .1745, all the fiPapers were laid before the House of Lords by the Lords of the• Cabinet, and these Lords sat with the other Lora as Judges, without any objealion• being - made. In 1794 (lief Justice Eyre was specially summoned to attend the Council which advised the State Trials of this period, ' and that judge was the first named in the-cominission for these trials. His Hon. Friend (Mr. Osuniog) did not then fear those b]ooly consequences from such proceedihsrs of which he was now so apprehensive. The Chief t ' Justice was by law' one of the King's Vice-gerents in his absence; and in almost every Commission of Regency mentioned in our history the Chief Justice Was included. In the Regency A& of Henry VIII.• the Chief Justice and another Judge were appointed. In the Regency Adt. of Queen 'Anne the Chief Justice brought the Bill down to that House, and every clause but that appointing him was iiolently opposed. His had in, the course of this day seen the original writ of sunimons issued to Lord Mansfield. •H 8 could take upon him to say that Noble and Learned Lord attended 'every Council from 1760 to 1763, when he left it for a' time, but returned to it in '1765. In 1757, -and the subse quent years, he liad also attended it, though it was so great a secret, and the Messenger who sum moned him went, as the Hon. Gentleman argued, so totally unseen. In 1763 he left off attending the Council, not 'from any sense of its incompatibility with his judicial situation, but according to a latter_ of his own, which was in existence, because he would, not sit 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 , Rill framed by Sir-Fletcher Norton, who would not have included him if the Association was,sanconsti tutional. In the riots of 1780, Lord Mansfield was present at the proceedings in the Council, and af terwards sat as Judge upon the rioters. From all these fans, he could see no Parliamt etary ground for the Motion now •before the House. , Mr. C.s.V.V/sVG admitted, that up to 1763, Lord Mansfield, sat regularly in ' the Cabinet, but never after 1765 ; therefhre the latter part of his litit was, in this respe&, a condemnation of the first. Mr. 'Secretary FOX, before he would offer his sentiments on the matter in question, begged to say ~ one word in explanation. . As to Lord Mansfield's confession, .is the Hon. Gentleman called its in 1765, that he had been? Member of the Cabinet Council under his late Majesty, andin the first years of his pre sent Majesty,.,and this confession having come upon the House of Lords by surprise ; that assertion of - its having come by 'surprise, was completely refuted 'by the sntCment of his Noble Friend, which sheaved that the faa must have been generally known. - One word also he would` say to the Hon. Gentleman who had opened this - debate, and who waisokind as .to give him someadvice as to the conduel he should pursue i4l Administration. He oW ned he did not think that advice , very good, and it was- rather a strange prelude to „what &Hewed, The Hon. Gentleman advised him not to consider himself in his present situation ;15 the iwact of a I?arty i not to 4 , 44et"0 to hi,, fPpler, I fr6m a PlitlCipig OfCOIISIACIICy ; and When he wish , ed animosities to cease, not to be 'forward to pro nounce opinions s that must tend to create and 'revive them. He could not consider as very good, this ad vice, to lose sight of all former opinions. :But it was eery whimsical when one considered what it led to. When he was called upon not to op pose this Motion, on the ground that it was incon sistent.with his former sentiments, it was odd that thg Hon. Gentleman who recommended this precept /was himself the person to set the example of de• parting from it, and to acquit him of the consistency he deprecated. s The Hon. Gentleman adVerted to the Address moved by him in the case of Sir Elijah Inspey, and charged • him with not adhering to the sentiments he, held in that instance. Among all the constitutional changes that had taken place, or could have taken place, that which he least foresaw at that 'time was what he this night witnessed; . that what Parliament was always jealous of recog nizing by debate, should be this night admitted ; that the prerogative should be made the subjeEt of a question, as to whom it may exercise its right upon. If a person in a judicial station was appointed to _another station held by some inconsistent with it, it was allowablelo ask how the appointment had been made, and by-whose advice. But that anyone class of Privy Counsellors should be excluded from giving the advice. they were by their oath bound to give, was a question with which lie never had expelled to come into conta&. The Cabinet Council was a term which had of late come into use in Parliament. - E'en what Lord Mansfield had described as . the Cabinet Council, consisting of the Groom of the-Stole, the I Lord Chamberlain, the Master of the Horse, the Stew ard of the Household, the Lord Privy. Seal, even -than had never been recognized, by Parliament. He would • ask - whether he himself, had not been uniform ip characterizing- the Cabinet Council - as only a selec tion from the Privy Council ; and though be was not aware that he had-such high authorities on his side as the Dukes of Somerset and Argyle, he had - always Maintained the rights Of -every Privy Counsellor to enter this seleCt body,,, assist sin their deliberations, and give his advice on the matter in debate. If it_ were now to be mooted, whether:the establishment of a Cabinet Council was- an abuse, much might be said on both sides.• He owned, • that to : a certain degree he, thought it was. Parliament had al ways avoided recognizing it, not only in addresses, ,but in statutes and impeachments. In his 'eonceps Lion, it never was recognized, but it was found con venient,-and therefore it was connived at, because connivance did not - involve the mischief • that would have !followed from recognition.. The Ho nourable Gentleman said there was, no record of who were Cabinet- Ministers. It was true the Cabi net Ministers were generally unknOwn, and therefore it was, that when precedents were called for none could be produced ; nothing was known beyond our own memory,, and the tradition of oufforefathers.— It was said on the other side, that Lord Hardwicke was not a Member of the Cabinet While Chief Justice. He believed lie was, but-there was no proof of it, as there was no record. This spirit of denial, in the absence of record, the Honourable . Gentleman oppo site carried to such an extreme, as to assert that no body-knew of Lord Mansfield having been a member - till he confessed - it in 1775. This fat; was conclusive as to precedent.• As to the Cabinet Council being as such responsible, he wished to know from the House whether from the practice of the House they were, responsible ,as a body, or as individuals belonging to the Cabinet. The - Hon. Gentleman opposite spoke of what had been said in newspapers, and of conver sation in the streets;. and, he wished -to say without offence, the Hon: Gentleman seemed to him to have taken his inforination on the subje& rather from newspapers and conversations in the• streets than from the JournalS .of Parliament.---If he was asked, whether the Cabinet should never be recognized, he would answer, no ; for-if you did recognize it, you should always have to do with those who com posed it, as a body; and if any measure executive , or -of advice, were to be inquired into, was it not easier to question the individual from whom the advice came, or who was concerned in th 6 execu tion„ than 10 or 12, most of WhPm had no concern with it. Certainly, the advisers of eVery measure were responsible; but it was always better to apply to the •ador, for he was more easily and plainly seen, and with less diffiehlty brought to account. Parliament possessed a mode of making that- Cabinet, which was not Yecognized nor responsible as a Cabinet, responsible in another shape, by an Address to •His Majesty to know who advised this or that Measure. The answer may shew the adviser to be or not to be a 'Member of the Cabinet; but - swindler he was pr not, he was equally responsible for -it. Many meetings of persons high in ()Mee were spoken of as Cabinet Councils, which were really nut so, as the Noble Lord opposite well knew. 'These persons often meet to consult and deliberate on - .particular subjects; but they could not be said. to. :be a Council ex cept when the object of their meeting was some advice to be given to His . Majesty. In that case the agent of the measure was made responsible to the, Country, -even though he should not have given. his advice, awl 'protested against the measure which it was still his duty to execute. Those who gave the advice were also responsible ; but it was as Privy Councillors. The operation of a high situation as matter of pride' and ambition, even when un- conneeted with emolument, was much insisted on. WaS it no gratification iu this sense to be made 'a Privy Counsellor ? was .it no degradation to be erased from the list of Privy Counsellors ?. In some in stances he thought it was a great degradation:— All Privy Counsellors, and all Peers, may give ad-. vice to the King, and they were responsible when ever .they gave it. With regard to the other part of the question, in theory he owned the objecs tion'. was plausible. Montesquieu had great weight with him as a general political Philosopher, but he could 'not acknowledge him as decisive authority on questions touching the Constitution of England. The object he had in view; like that of the Hon. Gentleman opposite, was to separate the legislative from the executive and judicial power. This hadbeen carried into Ole& in France lately, but never in any ostler country—certainly not here. In that House no measure had been adopted for • excluding the Master , of the _Rolls, nor in 'the Lords for excluding the Chief Justice of the King's Bench, who had usually at there for the last century.'. The Hon. Gentlemen , Were obliged to admit, that the 'Lord Chancellor united the judicial and legislativeapacity ; but then they-made a distinction unknov4eo Blackstone, be tween a crirnipal a 44 ivos no Judge purel e`meept. the aster' of the Rolls perhaps-. The Lerd Chancellor was certainly a. criminal Judge in many instances, particularly in the Steward's Court, in cases of murder. The lice. Gentleman took the authority partially, and pared, it down to the present case. Blackstone's authority had been overstrained on this point; but he begged leave to - demur to Blackstone ,as a questionable au thority on constitutional points, and this he cud on. the groundof his asserting, that the close of the Reign ~of Charles H. after the establishment of the Habeas Corpus A& was an sera at which the British Constitution was the most perfeet. It was the praCtice since the Revolution to make all the Chief Judges Privy Councillors; and therefore to render them. liable to be called on for their advice. It was ridiculous to suppose that Lord Mansfield's being in the - Cabinet ,could have remained unknown till he declared it in 1775, and he could not believe Lord Shelburne used the language imputed to him, for it was nonsense: To say the Noble Lord could not be constitntionally a Member of the Cabinet be cause he may have to execute what he had ad vised, was rank nonsense. For if that were an obje&ion it applied to every. Member of the Cabinet, for all had' to execute what they had advised. He hoped the- Honourable Gentlemen would spew fair play to Lord Chatham, and other Noble and distinguished Persons ' • and as they would think him (Mr. Fox) to blame for advising the ap pointment of Lard Ellenborough if he thought it wrong, so they would do Lord Chatham the justice, to think he would not sit in a Cabinet with Lord Mansfield, if lie thought there was any constitu tional obje&ion. .But the Statesmen of that time. wanted the lights of the Hon. Gentleman opposite. What .a pity it was the Hon. Gentleman who brought forward that Motion was not born twenty years sooner. He then might have said to. Lord Chatham, and, those other disinguished persons; " what a parcel of old fools you are ! you know nothing of 'the Constitution, listen to inc !" He never knew cases of libel to be debited in- the Cabinet. The Secretary of State took them up, and referred them to-the Attorney-General. Treason was a more se, rious case, and he should hardly have thought that the proceedings of the Council and the Judges had been so mixed in the case of the Rebel Lords, if his Noble Friend had not - particularly . stated it. The objeaion to the Chief Justice ( being in the Cabinet, lest he should prefer the - accusation where ,he was afterwards to be judge, Might as weld apply to the Chief Justice granting an information: Supposing that doubtful points of law should come-to be con .sidered, the Chief JUstice may be absent; but what reason was there why he might not give his advice on matters of , foreign or domestic politics.—No ; this-must not be done, lest the Chief Justice should become a Politician. He concurred that every Privy Councillor was bound to give his advice. But if he was not alloWed to give it either on matter of law or matter of politics. it was like Sancho's Government dinner in Don Quixote, where an excellent dinner was served up; but when'Sancho proposed to touch any of the dishes, he was told, " no, you must not touch that." With respect to the Regency, Chief Justice Parker did not ad at once as Chief Justice and- a Member of the Council of Regency, because Queen Anne died in Vacation, and George I, arrived before Term commenced. The Legislature was. very wise to have foreseen that this would haVe so happened. If. Dr. Aatclifie had preserved the Queen's life a little longer, the Constitution would ' have been ruined. But in the AEt of the . present King, the Prince of-Wales was but two years old,. and thus, if the King had died, the Chief J us tic e might have been a Member of the Cooncil of gency for near 16 years. After several more argu- ! ments of this nature, and the adducing of many historical proofs, he concluded by observing, that nothing could be urged against the appointment but abstract ideas without proof or foundation. Lord CASTLE REAGH paid' due deference to, piece. • dents, but he could not allow that they ought . to be acted on contrary to reason. Mr. PERCIVAL supported thit original Motion * and entered into a variety of arguments to prove the. ineonsistency aLd danger of the Offices of Judge and Cabinet I Minister being united; but the great length of the preceding part of the Debate preventS us, from entering even into a description of ins Speech. Mr. SHERIDAN briefly replied to Mr. PerciVal. The Opposition, ,he observed, hid been already coin-, menced, but he cared not about it, and would be sorry, indeed, if there was none, as he had the greatest affeCtion for. the old benches, end ceuidnot bear to see them deserted. He hoped the new s op-. position would be vigilant, and even wished•that they might be over zealous, or any thing but over lit - nerous., it was necessary that they should be active and stir. about, as the seats were cold, and one of the new occupiers had lately lost a very comfortable naval' cloak, and the other a very fine Indian shawl. He. then concluded by pronouncing an eulogium on the Gentlemen at the other side, who, he said, had corn mewed their opposition with much spirit and ani mation. Mr. WILBERFQRCE made a long speech in favour of the Motion. ' The question was,then impatiently called for, and the House divided : For the Amendment, 22.2; against it, 64.—Ma.. jority fur the Minister, 158. Adjoutned. THE decision of last night in both Houses of Parliament, respeaing the introdudion of the Chief Justice of the King's Bench to a seat in the Cabinet, fully confirms the opinion we yesterday ventured to hive upon the subject.- In the early periods of our History it was the, Fradice to appoint the Chief Justice of the King's Bench oPrivy Counsellor, and there was no attempt, at the Revolution, to alter that pradice. If such a pradice were held to be legal and con. stitutional before the Judges were made independent, it cer tainly cannot- be'considered as olijedionable when they are less at the mercy of the Crown, and are co -, sequently lees restrained in opinions and conduct upon whatever questions may be submitted to them in their capacity of Privy Coun sellors. The Cabinet, as we Yesterday observi.d, is merely a Committee of the Privy C . ouncil ; and if a Chief Justice may be one of the general body, he surely may, upon the same ground, be a Member of a particular Committee branching out from.that body. We yesterday mentioned the arrival of the P(lucess Char lotte Packet at Falmouth, from the West Indits., Previous to her sailing, Ad►i►jral DUCKANORTH had arrived at Saint Kitt's, but uo --French Squadion hid appeared in those Seas. Ad►hiral Coc iiitA NE was cru►zing off Nlartmico. LONDON : Printed by R. , HARRIS (of Martlett-court, B)w-street), and published by .W. A. SCR IPPS (of South. Moulton ! streetl, at_the-Sun.ol - Lice, 112, Stir:adt