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

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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.;-)1e 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 thee 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, thereforee 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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