super-addition of the sallaries enjoyed by the commissioners as judges, gave them advantages which were certainly improper and dangerous. For future judges might expect them: they might indulge in the hope of them; make advances to facilitate their hopes; and laying aside their independence, bask under the influence of the crown.

Nothing could be farther from his mind than to make any insinuation to the prejudice of the present commissioners of the great seal. It became him to say of them, and of the judges in general, that there never was upon the bench a set of men so incorrupt, so able, and so deserving. Their characters were not exposed to impeachments of any kind. From the present commission he had nothing to apprehend. It was the example that affected him. He foresaw the consequences that must inevitably follow the prevalence of such a practice. He dreaded them; and every friend to the constitution ought to dread them.

Of the evil complained of he was certain; but he did not know how to point out a remedy for it. But this was no reason why the matter should not be inquired into. In one of the old commissions, three lay-lords had been joined with the master of the rolls for the time being. In another, serjeant Maynard, and other serjeants, had been the commissioners. It was difficult to say what class of men ought most naturally to aspire to the distinction of commissioners; but sure he was, that to select judges by favour to sit in this capacity, and to bestow upon them the salaries and emoluments arising to a lord chancellor, was to affect their independency in a manner the most material. If there was any necessity for choosing judges to be commissioners, and if it was possible for them to have leisure from the business of their own courts to excrcise this new and important duty, let them do it without any additional sallary or perquisite. There were also other methods by which the hopes of the judges were excited, and from which he was VOL. II.

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equally averse. The granting, for example, of commissions similar to that under which the present chief justice of the king's bench sat as speaker of the house of lords, appeared to him to be highly exceptionable. It was well known to him, that the commission of the noble earl was not a new one, but of an old date. Still, however, that method of reward seemed addressed to the hopes of judges. It tended to submit them to a dependence on the will and pleasure of the crown. It was a contradiction to the idea, that judges ought to have stated and fixed sallaries, and ought to be secure in their independence.

He acknowledged that his feelings were assailed by another circumstance; and he conceived it to be hazardous that judges should at all sit in the house of peers. He desired not to say that the highest honours which the crown had to confer, should not be opened to the law as well as to every other honourable profession. But it was his opinion, that while lawyers sat on the bench as judges, they should abstain from the exercise of the privileges of peers. They ought not to sit to debate and to vote in the house of peers. Those whose business it was to expound the law, ought not to act as legislators. The opinion of president Montesquieu, who had studied with care the English constitution, ought to have weight on this subject. It was so remarkably to the point, that he would quote it. That great man observes, "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. No liberty can exist, if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and op

pression." There was another authority to which he would appeal, and of which the value would not be controverted. "Nothing, (according to Mr. Blackstone,) is more to be avoided in a free constitution, than uniting the provinces of a judge and a minister."

He confessed that these testimonies had great weight with him; and they could not but impress him with the greater force, when he considered the very slender and extraordinary ground on which the judges were excluded from sitting in the other house of parliament. Their exclusion did not rest upon any law or act of parliament. It was the consequence of a single resolution of the house of commons. If the impropriety then of their sitting in the one house was so easily admitted, he could not conceive why there should be much difficulty in allowing it with regard to the other. To sit among the peers, and

to act as politicians, was inconsistent with the character of judges. Nor was this all. For if lord chancellors and lords commissioners were to sit as peers, they must deliberate upon their own decrees, and, as it were, try themselves. In an idea of this sort, there was every thing that was most irrational. It had been boasted of by lord Hardwicke, that though he had sat upon the woolsack during a long period, not one of his decrees had been reversed. This assertion, however, though used in triumph, appeared to him to be a fact that proved too much, and which, of consequence, was not properly to be regarded as of a complimentary strain. Was it to be supposed, that lord Hardwicke was infallible, and that in the multitude of his determinations on the chancery bench, he had never once pronounced an erroneous judgment? Or was it not more natural to suppose, that the reason why none of his lordship's decrees had been reversed during his continuance on the woolsack, was the great influence which a chancellor of lord Hardwicke's abilities must ever possess in that house. This opinion had impressed him strongly and it was a confirmation of it, that when lord Henley sat in that house

as lord keeper, he had the misfortune to endure the reversal of his decrees; but that from the time he be. came lord Northington; and was created a peer, having an opportunity of talking to their lordships about his decrees, there was no longer any reversals of them. In all cases of appeal, a custom had prevailed to leave the judgment to the law lords. The lay lords seldom interfered. That the law lords should try over again the causes they had adjudged, was therefore, he imagined, an impropriety so glaring, that it could not but strike every impartial observer. The source of justice ought to be preserved with a most scrupulous purity. He wished, accordingly, that effectual measures were taken for removing the hopes as well as the fears of judges: and, perhaps, no method could produce this purpose so advantageously as their confinement to their judgeships. At the same time, he was not anxious to narrow their incomes. If their salaries were insufficient either for their dignity or their services, let them be augmented. But if any augmentation be given, let it be fixed and not variable. Let it not fluctuate at the pleasure of the

crown.

He intimated that it was his intention to move, that a committee should be appointed to inquire into the independency of the judges, and into the best means of securing it. As, however, a naked vote of that kind might be deemed unparliamentary, he would previously move, "That putting the seals in commission, durante bene placito, and appointing judges commissioners, with large salaries and perquisites to be received by them during the existence of a commission originating in and solely dependant on the will and pleasure of the crown, tended to invalidate the act of the 13th of king Wil liam."

DUKE OF PORTLAND.

OBJECTED to the motion which had been made; and considered it as containing, by implication, a violent censure of the measure to which it so pointedly alluded. He was entirely convinced that the judges ought to be independent; and he could not conceive that they could be secured more effectually against the influence of the crown than by the methods which had already been adopted for that end.

To put the seals in commission, was not a new experiment. It had been done repeatedly without censure. In the present case it was merely a temporary transaction; and it was not easy to observe how it could detract from the independency of the judges. In human affairs, to extinguish the excitements of hope would be to extinguish the vigour of human action and pursuits. Besides, if the argument were just, that the hope of being put into a commission for the great seal would destroy the independency of the judges, did it not follow, that there should be no such places as the chief justiceships of the courts of the king's-bench and common pleas? Did it not follow, that in the exchequer there should be no such place as the seat of the chief baron? Did it not follow, that the most scrupulous equality should be maintained among judges; that they should never presume to aspire to the peerage; and that every high honour in the gift of the crown should be industriously placed beyond their reach? That he might oppose, however, the motion, in the most respectful manner to the noble duke, he moved the previous question.