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 character of mildness which was unknown to eastern despotism, and that also which so peculiarly characterised our own happy constitution, was the separation of the judicial and executive functions. The separation of the judicial from the legislative and executive power had always been considered, by the best and most esteemed writers, as essential to the existence and maintenance of public liberty, and the welfare and happiness of a state. On this subject Montesquieu had dwelt with peculiar emphasis, to prove the proposition which he had just stated. To blend and amalgamate in the same person the judicial and executive functions, must in many cases be productive of the most serious consequences, not to say positive evils, whilst, at the same time, the public could never feel satisfied with the justice administered under such circumstances. The chief justice of the court of King's Bench might, as a cabinet minister, concur in ordering a prosecution to be instituted against any person for a 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 for a libel on 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; 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 situation might absent himself from the bench on such a trial; be it so; he wished for no better argument against the practice of appointing a chief justice a cabinet minister; it must be the case in some instances 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 admitted, 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 confiden tial ministers of the crown, and all distinction between. the judicial and exccutive functions be thus completely at an end. He begged that in delivering these opinions, he might not be supposed to involve any thing personal to the present chief justice of the court of King's Bench, for whose character he had the highest respect. Far be it from him to suppose for a moment, that the conduct 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 contrary, he was thoroughly convinced that justice could not be more purely and impartially administered 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 suspecting that justice might not be duly administered. His ideas upon this subject were sanctioned, 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 clearly and decidedly upon the subject, and who had stated, that the judicial ought to be kept entirely separate and distinct from the legislative and executive functions, in order to maintain the constitution, and preserve entire the liberties of the people. He concluded by moving, "That it is inexpedient and derogatory to the constitutional administration of justice, to summon to any committee 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 re turn thanks to the noble carl who had brought forward the motion, than to impute to him any intention either of harassing the present administration by the introduction of it, or of disseminating any uneasiness or dissatisfaction throughout the country respecting the nature of the appointment against which the motion was directed. For to him it appeared to afford a wished-for opportunity of removing all the objections that had been urged against it, and of silencing every alarm which the appointment could possibly be supposed to have made. He therefore even ventured to hope, that from the progress and effect of the discussion, the noble earl would be induced at least to withdraw, if not to negative the motion. But he could not help expressing his surprize, how the noble carl should VOL. I. 1805-6. Ff have have so repeatedly, and so emphatically asserted, 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 carl, 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 abstract 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 wantonly 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 respecting any thing unconstitutional in its nature, no discussion of a mere speculative nature should prevent him from giving his negative to the motion. Such a question might be met with other speculative questions of a similar tendency, that would render it wholly absurd; but he should not have recourse to any such mode of argument; neither 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 carl did not even deign to glance at. He should refer the noble carl to the authority of Sir Edward Coke, and there he would see, that not only the most eminent lawyers were at times consulted upon matters of law, but also on the gravest matters of high state policy. To consult the chief justices of the bench on such points, was then no novel matter; indeed, 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 throughout the whole of the subsequent period, the privy council was constituted nearly as it is at present. The number constituting it might vary at different times; but at all times, a selection or committee from it had a voice on all state matters. Let the situation of Sir Francis North be recollected, and that of almost every one of the chief justices of the com mon pleas, all of whom, invested with the same pretensions, were members of the privy council. Indeed, it was then a sort of law. If he referred to the time of Queen Ann, the same practice prevailed, and the same inferences were deducible from it. The lord chief justices of both benches were appointed members of the executive government; and even in the present reign, a chief justice of the King's Bench was amongst his Majesty's principal advisers. Now was the case 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 analogy, they would occur in abundance. If a counsel 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 rendered unfit to pronounce ultimately on the same case? Even a country gentleman who acted in the capacity of magistrate, and who consequently took evidence upon such cases as came before him, would, by this doctrine, be prevented from giving his assistance and advice to the judges upon the circuit, which however he was in the constant practice of doing, deeming it his duty so to do. Upon a general survey therefore of the question, there could be found nothing in precedent, or in practice, or in analogy, that furnished any just ground for the noble carl's motion, and he therefore conceived a well-founded hope, that upon maturer consideration, the noble carl would withdraw it. Lord Eldon would not take up the question in any light or bearing but that of his own intrinsic importance. He should not, therefore, argue it with respect 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 actuated by disrespect towards the noble and learned lord, whom it more immediately concerned, or any other 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 respect for the learned lord, for whom, during thirty years of his life, he had entertained the most sincere sentiments of affection and esteem ; but now with regard to the nature of the appointment which the noble and learned lord had accepted, it was a Ff2 matter matter 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, but on these points he protested he should 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 administration of justice that could secure the rights, and satisfy the minds, of the people; but that they looked, and anxiously looked, to its pure, disinterested, unsuspected, and satisfactory administration, and that from such principles alone, they would confidently and implicitly rely upon the due preservation of their rights and liberties. Such were his feelings and opinion respecting the character which the administrators of justice should be believed to possess, and that he was equally satisfied were the sentiments of his noble and learned friend.-The noble 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, but is it not equally notorious, that this very circumstance hung like a weight upon that great man for nearly thirty years of his life, and that his opinions respecting the habeas-corpus had created a jealousy not easily allayed? This, no doubt, should ground no suspicion that his conduct 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 he were present; and satisfied he was, that he would express the same sentiments. On the point of the expediency of the appointment, much also might be said. When he in his capacity of attorney-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 conduct of the lord chief justice, had he been a member of the executive government, or of what is called the cabinet? must he not have been puzzled how to act? Were he not to attend at the privy council, where evidence was taken on these cases, then you would have made a man a minister who did not perform his duty as such; or, if he |