tem that human wisdom had ever framed for the happiness of mankind, it was his earnest wish that those who administered the Laws should be exer pt, not only from suspicion, but from the possibility of being influenced, or acting under the feelings of their associates in office. The independence and integrity of the Judges were among the chief bulwarks of the Constitution. To preserve and strengthen these, he should propose a resolution," that it was expedient, for the due administration of justice, that none of the Common Law Judges should be Members of the Cabinet Council." Lord St John said, the question was one of an abstract nature; it did not state that any evil had arisen, but that evil might arise. He would appeal to the opinion of that great lawyer, Sir Edward Coke, who had laid it down that the Judges of the land, and particularly the Chief Justices of either Bench, might be called to his Majesty's Councils. The statute of the 4th of Edward III. described his Majesty's Council as composed of the Lord Treasurer, Lord Chamberlain, and Chief Justices of either Bench. An act of Henry VIII. also mentioned the Chief Justices as belonging to his Majesty's Council. His Lordship quoted a variety of other instances, in which the Chief Justices had either been included in the list of Lords Justices upon the appointment of regencies, or as having been called to the deliberations of the Privy Council. Among the latter was that of Lord Justice Lee, in 1746, upon circumstances connected with the rebellion, in the preceding year, and of Lord Loughborough in 1780. Lord Eldon (late Lord Chancellor) considered the question of high importance, as relating to the administration of justice in this country. He felt the highest respect and veneration for the Noble and Learned Lord (Lord Ellenborough), whom he then saw in his place; and it was to express his respect for that Noble Lord, that he was induced to attend upon this occasion. He would not contend, that the appointment of that Noble Lord to a seat in the Cabinet was either illegal, or unconstitutional; but yet there existed strong reasons which made it unadviseable or inexpedient. It was not enough that the administration of justice should be perfectly free and uninfluenced by Go verament; it should be beyond the reach of suspicion, and so exercised, as to give perfect satisfaction to all his Majesty's subjects. There were many analogies and precedents against the uniting the functions of Chief Justice with a seat in the Cabinet. Although, in order to shew that it had been before united, the solitary instance of Lord Mansfield might be urged, yet it must also be recollected how extremely unpopular that noble and eminent person became after he had united those stations, and how that unpopularity hung to him for the greater part of his life. Perhaps it was an ill-founded jealousy which existed in the minds of the public, but still it was sufficient to weaken the confidence which they ought to place in the judicial character. For his part, he was so well acquainted with the Noble and Learned Lord, that he felt personally the utmost confidence that it would not, in any degree, affect the purity of the administration of justice, if Lord Ellenborough had a seat in the Cabinet. But he thought the inexpediency of it so great, that he hoped, when the Noble Lord reflected on it, he would not himself wish to retain his seat in the Cabinet. When he himself had often been consulted in examinations about sedition and treason, he should have felt that it would not be proper for him to sit as a Judge to try those persons whose prosecution he might have advised. It might be said, that it might be so arranged, that either the Chief Justice should not attend the Cabinet when questions were to be agitated which might afterwards come before him for trial, or if he attended it, he might stay away from the Court of King's Bench, and leave the trial to others. When he was appointed a Cabinet Minister, it, however, became his duty to attend; and it was a duty still stronger for him to attend his Court, for the subjects of this land had a right to the assistance of the Lord Chief Justice in the administration of justice. Although in the prosecutions he had before alluded to, the of fences were not against any particular Administration or Government, but went to overturn all Government, yet he might enter a case, where the Cabinet Council might think it proper to prosecute some libel against the Govern ment, ment, or, in plain English, against the measures of the persons composing the Administration. Were such a case to occur, he did not think it possible that the parties accused could be satisfied of the faimess of their trial, if the Judge who was to try them was a member of that Cabinet which had ordered the prosecution. It might be said, that Lord Chief Justice Eyre had tried those persens upon whose case he had been previously informed and consulted; he by no means considered that as among the most honourable parts of the life of Lord Chief Justice Eyre. He thought the best way of disposing of the question was, to leave it to the consideration of the Noble Lord himself; and he was convinced the result would be more satisfactory both to his own feelings and to these of the public. Lord Sidmouth said, if he had enter. tained the least doubt of the appointment being strictly legal, and conformable to the Constitution, he should not have attempted to support it, although it would be a serious injury to the country to deprive his Majesty and the nation of the abilities and assistance of Lord Ellenborough at the Councils on public affairs. It appeared to him, that the tendency of the objections which had been made would be to fetter the legitimate prerogatives of the Crown, to limit the sphere of public duty, and the means which his Majesty possessed of calling for the advice of persons of distinguished ability, in his Privy Council. Whatever would tend to withdraw from the public service the great abilities of the Lord Chief Justice, he should deplore as a public calamity; but still it would be a sacrifice that must be made, if the law and the constitution required it.The case of Lord Mansfield was by no means a solitary case, as had been stated. Lord Hardwicke had for six months united the offices of Chief Justice and Chancellor, and during that time sat in the Cabinet. There were numerous instances of Judges being Privy Councellors; there were also instances of Lord Chief Justices executing much higher offices than that of Cabinet Minister: although, certainly, it was not to be expected that many ancient precedents could be found for their having a seat among that selection of Privy Councellors which have been lately termed "the Cabinet." If the thing was improper in principle, a bill should be brought in to prevent it; but he saw no expediency, and could perceive no other consequence likely to follow from the adoption of the motion but the loss of the great talents of the Noble and Learned Lord. He was not, however, afraid of the public mind being much agitated or alarmed, with respect to the determination of the present question. As Lord Mulgrave said, that as to the word "Cabinet," although it might have been but lately introduced, still it 'was a term that was generally understood, not only in this country but over all Europe. The Members of the Cabinet were considered the responsible advisers of the Crown, and the Lord Chief Justice, in that capacity, might be brought to the bar and impeached, when his presence might be necessary in the King's Bench in his judicial capacity. As a Minister, his Majesty might be addressed to remove him from his presence and Councils for ever, and yet, as Lord Chief Justice, his Majesty could not remove him, as long as in his judicial capacity he should conduct himself without reproach. It was for these reasons that it appeared to him generally inexpedient that a Lord Chief Justice should be called to a seat in the Cabinet. to Lord Ellenborough, personally, he had a great respect for his character as a Judge, but he did not know what great service was to be expected from him in the Cabinet. As to his knowledge or experience of matters in law (great as it undoubtedly was), yet the Government did not appear particularly to be in need of that legal advice, when they had a Lord Chancellor who had such extensive experience of the law, and when they could be assisted by the advice of the Attorney General and of Mr Romilly, who had perhaps as much experience in equity as the Lord Chan'cellor had in the Courts of Law. As to general politics, it could not be supposed that Lord Ellenborough had more knowledge of the subject than many other men in the kingdom of a cultivated mind. His professional habits must have prevented him from giving as much attention to these subjects as other persons; and, in point of fact, while he had been in Parliament, whether whether as Attorney-General in the Lower House, or as a Peer in that House, he had taken very little share in questions of general politics. He therefore could not see what necessity there was for giving him a place in the Cabi net. Lord Hawkesbury said, no question more interesting could have been offered to their Lordships, not merely on account of its connection with the lives and liberties of the people, but as touching the very essence of the Constitution. He would not look to any foreign writer for the principles of the British Constitution; but upon the general principles of liberty, he could have no objection to consult so eminent a writer as Baron Montesquieu. What was his opinion upon the division of political power in a State? It was this, that it was more adviseable that the judicial power should be separated from the executive, than that the legislative authority should be distinct from the executive. Such, too, was the opinion of that admirable writer Judge Blackstone. For himself, he was not such an extravagant theorist, as to wish to push principles beyond practical utility. The course which a wise legislator would adopt, would be to make the exceptions to his general principle, not as numerous, but as few as possible. There could be no union more dangerous, than that of a Judge and a Minister of State; and such was the present Chief Justice of the King's Bench. He was, and of necessity must be, identified with those who constituted what was called the Government; in danger of becoming a party to all their passions and prejudices; and giving him, as he did, full credit for the utmost purity, it was impossible that, in questions between Government and individuals, he could be considered as an unbiassed Judge. Suppose the case of a libel published against the Administration of the country, of which he made a part, was brought before him, in what an aukward situation would he be placed, sitting in judgement upon an offence actually committed against himself!-In cases of riot too, arising from the dearness of provisions, and to suppress which Government might probably have recourse to strong measures, was it adviseable that one of the Cabinet Ministers should be sitting as Judge to try the persons sq offending?-There was but one instance since the Revolution of a Common Law Judge acting as a Cabinet Minister; and it was from that period that the independence of the judges commenced. He could not consider Lord Hardwicke's case as a fair precedent, filling as he did, for certain weighty reasons at the time, the office of Lord Chancellor and Chief Justice together. The case of a Lord Chancellor having a seat in the Cabinet bore no analogy whatever to that of a Chief Justice, for the jurisdiction of the former in no degree applied to criminal law. The Chancellor was removeable at pleasure, because he was a Cabinet Minister; neither the Judges nor the Master of the Rolls were, because it was not intended that they should ever become responsible advisers of the Crown; but he would contend, that the appointment of the Chief Justice of the King's Bench, of a common Law Judge, to a seat in the Cabinet, was not congenial with the pure principles and practice of the Constitution. He should be sorry to see that respect which was due to the sacred character of a Judge diminished by such an innovation upon the Constitution. Whatever might be the decision of the House, it could not be concealed that the general feeling of the country was against the appointment. Lord Grenville said, much pains had been taken out of that House to impress a conviction that the appointment was illegal; a Noble and Learned Lord had said that it was not, nor even unconstitutional. Much stress had been laid upon the opinion of Judge Blackstone. Whatever might be discoverable in that writer, it could not be denied that many of his theories were fanciful and impracticable. He would attack the principles adyanced by the Noble Lord who had spoken so long and so eloquently, and assert that there was no such distinction to be found in the Constitution as that he endeavoured to maintain. What do the noble Lords say by way of answer to the precedents produced? Why this, the case of Lord Mansfield was one innovation upon the Constitution, let us not have a second.From the earliest periods of our history, it would be found that legal persons have been called to the Councils of the reigning reigning Sovereign. The Grand Justiciary formerly was the first Minister. His Lordship then examined the precedents of Sir Edward Coke, of Sir W. Temple, of the regency of Queen Anne, charged with no light matter, the settlement of the political succession to the Crown. Of that regency were both the Chief Justices members; and if seditions had taken place, if libels had ben published tending to obstruct that settlement, the offenders must have been tried before one of those Judges, if he did his duty. With respect to the instance of Lord Mansfield, he would say a few words. He never could have thought, that it would have become his duty to defend the memory of Lord Mansfield against the reflection which had been thrown upon it, that his character for the administration of justice had suffered during a certain period of his life. [His Lordship here read many passages from the speech of Lord Mansfield, upon the motion brought forward against him in the year 1774] His Lordship next observed upon the cases of Chief Justices · Holt, Lee, Mansfield, Kenyon, the last of whom, it was said, was only occa sionally called to the Council. There was nothing, he said, which should prevent a firm and upright judge from doing his duty, both as the head of the criminal judicial power, and as one of his Majesty's Cabinet Council. He cited from a minute of the Council, a precedent, on the 9th of June 1780. When Chief Justice Wedderburn attended it to enquire into the cause of the late riots, he was one of the sub-committee which collected the evidence and reported upon it to his Majesty, and afterwards was one of the Commission which sat in the borough for the trial of the rioters. He trusted, that he had pretty well disposed of the question with respect to law, constitution, and practice; he would next say a little as to expediency. Noble Lords seemed to have adopted a very perverse mode of reasoning upon the subject. They allowed that the Judges might continue impartial when the life of the Sovereign was attempted; when the country was attempted to be deluged in blood; when the constitution was to be subverted; but all this impartiality was to vanish, as soon as he was called upon to punish some mise rable libeller. The mode of proposing the question appeared to him particularly objectionable. If, within a few days after the appointment, the propriety of it were questioned in that House, the next thing for Parliament to do would be to suggest to his Majesty whom he was to appoint. And to whose appointment are these objections made? Why, to the very person whom the Noble Lords on the opposite Bench advised his Majesty to call up by writ to that House. The Lord Chancellor spoke at length to the motion. He earnestly entreated the Noble Earl to follow that advice which he had recommended to his Noble and Learned Friend, and to consider the question. Was it possible that the House could entertain a question which was tantamount to a negation of the undoubted prerogative of his Majesty to appoint his own Council? Look to the Journals of the House; was there a precedent of such a motion upon them? If the principle contained in the motion were pushed to its utmost extent, the effect of it ultimately would be to pull down the Monarchy. He had lived long enough to see the absurdity of making Constitutions from theories. If this motion were to pass, the next, he supposed, would be, that none of the Law Lords should have a seat in that House. His Lordship pronounced a warm eulogium upon the trial by Jury, in which he contended the safety of the subject consisted, and not in fanciful theories about the division of the Judicial and Executive power. It should be remembered that Lord Mansfield lived in hot times, when many virtuous and well meaning men were to be found, but during which also there were some knaves, who made a stalking-horse of liberty. He hoped the Noble Earl would save him the trouble of putting the question upon the motion he held in. bis hand. The question being loudly called for, was put by the Chancellor, who declared that the Non-contents had it. No division was demanded. HIS 214 CAPTURE OF THE CAPE OF GOOD HOPE. ON the 31st of August last, a consi. derable armament, consisting of 65 transports, with about 8000 troops, four ships of the line and two frigates, and seven sail of Indiamen, sailed from Corke, under the command of Major Gen. Sir David Baird, and Commodore Sir Home Popham. The object of this expedition was kept a profound secret, till the result has now been made public. We learn that the passage was rather unfavourable, having met with much bad weather, both on the way to Madeira, and to Rio de Janeiro, where they arrived about the 14th of November. On the coast of South America, they had the misfortune to lose the Britannia Indiaman and the King George artillery transport, on a reef of rocks called Rocca de Noronha. General Yorke, the commander of the artillery on this expedition, was unfortunately drowned. The Britannia, it is said, had 2,000,000 dollars on board for the China trade, of which only 100,000 were saved. On the 26th November the expedition sailed from St Salvador, and reached the Cape on the 4th January, without any further accident. The capture of this important settlement has been announced in the following LONDON GAZETTE EXTRAORDINARY, Downing-Street, Feb. 28. Dispatches, of which the following are a copy and extract, addressed to Lord Viscount Castlereagh, were received yesterday evening, at the office of the Right Hon. William Windham, one of his Majesty's Principal Secretaries of State, from Major General Sir David Baird:- Cape Town, Jan. 12, 1806. My Lord, I have the honour to announce to your Lordship, the capitulation of the town and Cape of Good Hope, to his Majesty's arms. In my dispatches of the 24th Nov. from St Salvador, I had the honour to apprise your Lordship of the measures adopted to refresh the force under my command; and having, with much difficulty, procured about 70 horses for the cavalry, and the sick being recruited, the expedition sailed on the 26th; and we had the good fortune to reach Table Bay on the 4th instant. It had been intended to disembark the army immediately, and with a view of covering our design, before entering the Bay, the 24th regiment, commanded by the Hon. Lieut. Col. M'Donald, make a demonstration of landing in was detached with the Leda frigate to Campo Bay, but the wind having fail ed, the fleet did not arrive at its anchorage until the day was too far advanced to attempt a landing. On the morning of the 5th, the first brigade, under Brig. Gen. Beresford, towards the only accessible part of the was embarked in boats, and proceeded shore, in a small bay, sixteen miles to the northward of Cape Town, where it appeared practicable to effect a disembarkation; but the surf had increased so considerably, that, combined with the local difficulties of the spot, it was found necesssary to abandon the attempt. careful examination of the whole of the The rest of the day was devoted to a shore, from Lospard's Bay to within gun-shot of the batteries of Cape Town, but which produced only the distressing conclusion, that the chance of effecting landing depended upon contingencies, very unlikely to be realised but in a perfect calm. In order to obviate the disadvantages of delay, in the adoption of a resolution necessarily imposed on me, I directed which I apprehended would at last be Brig. Gen. Beresford to proceed with the 38th regt. and the 20th Light Dra. goons, escorted by his Majesty's ship Diomede, to Saldanha Bay, where the disembarkation could be accomplished with facility, and a prospect was afforded us of procuring horses and cattle; and purposed following with the main body |