« ZurückWeiter »
tem that human wisdom had ever framed perfectly free and uninfluenced by Goo for the happiness of mankind, it was his verament; it should be beyond the earnest wish that those who administered reach of suspicion, and so exercised, as the Laws should be exer.pt, not only to give periect satisiaction to all his from suspicion, but from the possibility Majesty's subjects. There were many of being influenced, or acting under the analogies and precedents against the u. feelings of their associates in office. miting the functions of Chief Justice The independence and integriiy of the with a seat in the Cabinet. Alihough, Judges were among the chief bulwalks in order to shew that it had been before of the Constitutiin. To preserve and united, the solitary instance of Lord strengthen these, he should propose a re Manstield might be urged, yet it must
solution, “ that it was expedient, for the also be recollected how extremely undue administration of justice, that none popular that noble and eminent person of the Common Law judges should be became after he had united those staMembers of the Cabinet Council." tions, and how that unpopularity hung
Lord St John said, the question was to him for the greater part of his life. one of an abstract nature; it did not --Perhaps it was an ill-founded jealousy state that any evil had arisen, but that which existed in the minds of the public, evil might arise. He would appeal to but still it was sufficient to weaken the the opinion of that great la vyer, Sir confidence which they ought to place Edward Coke, who had laid it down in the judicial character. For his part, that the Judges of the land, and particu- he was so well acquainted with the larly the Chief Justices of cither Bench, Noble and Learned Lord, that he felt might be called to his Majesty's Coun- personally the utmost confidence that it cils. The statute of the 4th of Edward would not, in any degree, affect the puIII. described his Majesty's Council as rity of the administration of justice, if composed of the Lord Treasurer, Lord Lord Ellenborough had a seat in the CaChamberlain, and Chief Justices of binet. But he though the inexpediency either Bench. An act of Henry VIII. -of it so great, that he hoped, when the also mentioned the Chief Justices as be Noble Lord reflected on it, he would longing to his Majesty's Council. His not himself wish to retain his seat in the Lordship quoted a variety of other in Cabinet. When he himself had often stances, in which the Chief Justices had been consulted in examinations about se. either been included in the list of Lords dition and treason, he should have felt Justices upon the aj pointment of regen- that it would not be proper for him to cies, or as having been called to the de- sit as a Judge to try those persons whose liberations of the Privy Council. A- prosecution he might have advised. It mong the latier was that of Lord jus- might be said, that it might be so arrantice Lee, in 1746, upon circumstances ged, that either the Chief Justice should connected with the rebellion, in the pre not attend the Cabinet when questions ceding year, and of Lord Loughborough were to be agitated which might afterin 1780.
wards come before him for trial, or if he Lord Eldon (late Lord Chancellor) attended it, he might stay away from considered the question of high impor- the Court of King's Bench, and leave tance, as relating to the admmistration the trial to others. When he was apof justice in this country. He felt the pointed a Cabinet Minister, it, however, highest respect and veneration for the became his duty to attend; and it was Noble and Learned Lord (Lord Ellen a duty still stronger for him to attend borough), whom he then saw in his his Court, for the subjects of this land place; and it was to express his respect had a right to the assistance of the for that Noble Lord, that he was induc- Lord Chief Justice in the administration ed to attend upon this occasion. He of justice. Although in the prosecuwould not contend, that the appoint- tions he had before alluded to, the ofment of that Noble Lord to a seat in the fences were not against any particular Cabinet was either illegal, or unconsti- Administration or Government, but tutional; but yet there existed strong went to overturn all Government, yet reasons which made it unadviseable or
he might enter a case, where the Cabiinexpedient. It was not enough that net Council might think it proper to the administration of justice should be prosecute some libelagainst the Govern
ment, or, in plain English, against the lately termed “ the Cabinet.” If the measures of the persous composing the thing was improper in principle, a bill Administration. Were such a case to should be brought in to prevent it; but occur, he did not think it possible that he saw no expediency, and could perthe parties accused could be satisfied of ceive no other consequence likely to the idirness of their trial, if the Judge follow from the adopiion of the motion who was to try them was a member of but the loss of the great talents of the that Cabinet which had ordered the pro Noble and Leared Lord. He was not, secution. It might be said, that Lord however, afraid of the public mind be. Chief Justice Eyre had tried those per-' ing much agitated or alarmed, with resons upon whose case he had been pre- spect to the determination of the present viously informed and consulted; he by question. no means considered that as among the Lord Mulgrave said, that as to the most honourable parts of the lite of word “Cabinet," although it might Lord Chief Justice Eyre. He thought have been but lately introduced, still it the best way of disposing of the ques 'was a term that was generally undertion was, to leave it to the consideration stovd, not only in this country but over et the Noble Lord himself; and he was all Europe. The Members of the Cabicunvinced the result would be more sa nei were considered the responsible adtisfactory both to his own feelings and visers of the Crown, and the Lord Chief to those of the public.
Justice, in that capacity, might be Lord Si:lmouth said, if he had enter. brought to the bir and impeached, tained the least doubt of the appoint when his presence might be necessary mert being strictly legal, and conform in the King's Bench in his judicial capaable to the Constitution, he should not city. As a Minister, his Majesty might have attempted to support it, although beaddressed to remove him from his preit would be a serious injury to the sence and Councils for ever, and yet, as coun:ry to veprive liis Majesty and the Lord Chief Justice, his Majesty could nation of the abilities and assistance of not remove him, as long as in his judicial Lord Ellenborough at the Councils on capacity he should conduct himself withpublic affairs. It appeared to him, that out reproach. It was for these reasons the tendency of the objections which that it appeared to him generally inexhad been made would be io fetter the le. pedient that a Lord Chief Justice should gitimate prerogatives of the Crown, 10 be called to a seat in the Cabinet. As limit the sphere of public duty, and the to Lord Eilenborough, personally, he means which his Majesty possessed of had a great respect for his character as a calling for the advice of persons of dis- Judge, but he did not know what great tinguished ability, in his Privy Council. service was to be expected from him in Whatever would tend to withdraw from the Cabinet. As to his knowledge or the public service the great abilities of experience of matters in law (great as the Lord Chief Justice, he should de. it undoubtedly was), yet the Govern. plore as a public calamity; but still it ment did not appear particularly to be would be a sacrifice that must be made, in need of tbat legal advice, when they if the law and the constitution required had a Lord Chancellor who had such it.-— The case of Lord Alansfield was by extensive experience of the law, and no means a solitary case, as had been when they could be assisted by the adstated. Lord Hardwicke had for six vice of the Attorney General and of months united the offices of Chief Jus Mr Romilly, who had perhaps as much tice and Chancellor, and during that experience in equity as the Lord Chantime sat in the Cabinet. There were 'cellor had in the Courts of Law. As numerous instances of Judges being to general politics, it could not be supPrivy Councellors; there were also in- posed that Lord Ellenborough had stances of Lord Chief Justices execut more knowledge of the subject than ing much higher offices than that of many ether men in the kingdom of a Cabinet Minister: although, certainly, cultivated mind. His professional hait was not to be expected that many an bits must have prevented him from cient precedents could be found for giving as much attention to these subtheir having a seat among that selection jects as other persons; and, in point of of Privy Courcellors whicir have been fact, while he had been in Parliament,
whether as Attorney-General in the be sitting as Judge to try the persons so Lower House, or as a Peer in that offendiug?
There was but one instance House, he had taken very little share in since the Revolution of a Common Law questions of general politics. He there. Judge acting as a Cabinet Minister; fore could not see what necessity there and it was from that period that the inwas for giving him a place in the Cabi. dependence of the judges commenced. net.
He could not consider Lord Hardwicke's Lord Hawkesbury said, no question case as a fair precedent, filling as he did, more interesting could have been offer. for certain weighty reasons at the time, ed to their Luidships, not merely on ac. the office of Lord Chancellor and Chief count of its connection with the lives Justice together. The case of a Lord and liberties of the people, but as touch- Chancellor baving a seat in the Cabinet ing the very essence of the Constitution. bore no analogy whatever to that of a He would not look to any foreign writer Chief Justice, for the jurisdiction of the for the principles of the British Consti- former in no degree applied to criminal turion ; but upon the general principles law. The Chancellor was removeable of liberty, he could have no objection at pleasure, because he was a Cabinet to consult so eminent a writer as Baron Minister; neither the Judges nor the Montesquieu. What was his opinion Master of the Rolls were, because it upon the division of political power in a was not intended that they should ever State? It was this, that it was more ad. become responsible advisers of the viseable that the judicial power should Crown; but he would contend, that the be separated from the executive, than appointment of the Chief Justice of the that the legislative authority should be King's Bench, of a common Law Judge, distinct from the executive. Şuch, too, to a seat in the Cabinet, was not conwas the opinion of that admirable writer genial with the pure principles and Judge Blackstone. For himself, he practice of the Constitution. He should was not such an extravagant theorist, be sorry to see that respect which was as to wish to push principles beyond due to the sacred character of a Judge practical utility. The course which a diminished by such an innovation upon wise legislator would adopt, would be the Constitution. Whatever might be to make the exceptions to his general the decision of the House, it could not principle, not as numerous, but as few be concealed that the general feeling of as possible. There could be no union the country was against the appointmore dangerous, than that of a Judge ment. and a Minister of State; and such was Lord Grenville said, much pains had the present Chief Justice of the King's been taken out of that House to imBench. He was, and of necessity must press a conviction that the appointment be, identified with those who constitut was illegal ; a Noble and Learned Lord ed what was called the Government; in had said that it was not, nor even undanger of becoming a party to all their constitutional. Much stress had been passions and prejudices; and giving laid upon the opinion of Judge Blackhim, as he did, full credit for the ut stone. Whatever might be discoverable most purity, it was impossible that, in in that writer, it could not be denied questions betwe
Government in that many of his theories were fanciful dividuals, he could be considered as an and impracticable. He would attack unbiassed Judge.
the principles adyanced by the Noble Suppose the case of a libel published Lord who had spoken so long and so against the Administration of the coun eloquently, and assert that there was no try, of which he made a part, was such distinction to be found in the brought before him, in what an aukward Constitution as that he endeavoured to situation would he be placed, sitting in maintain. What do the noble Lords judgement upon' an offence 'actually say by way of answer to the precedents committed against himself :— 111 cases of produced? Why this, the case of Lord riot too, arising from the dearness of Mansfield was one innovation upon the provisions, and to suppress which Go. Constitution, let us not have a second.verpment might probably have recourse From the earliest periods of our history, to strong measures, was it adviseable it would be found that, legal persons that one of the Cabinet Ministers should have been called to the Councils of the
reigning Sovereign. The Grand Justi- when the constitution was to be subciary formerly was the first Minister. verted; but all this impartiality was to His Lordship then examined the prece- , vanish, as soon as he was called upon dents of Sir Edward Coke, of Sir W. to punish some mise rable libeller. The Temple, of the regency of Queen Anne, mode of proposing the question appearcharged with no light matter, i he settle, ed to him particularly objectionable. If, ment of the political succession to the within a few days after the appointCrown. Of that regency were both ment, the propriety of it were questionthe Chief Justices members; and if se ed in that House, the next thing for ditions had taken place, if libels had Parliament to do would be to suggest to b en published tending to obstruct that his Majesty whom he was to appoint. şeitlement, the offenders must have
And to whose appointment are these been tried betore one of those Judges, if objections made? Why, to the very he did his duty.
person whom the Noble Lords on the With respect to the instance of Lord opposite Bench advised his Majesty to Mansfield, he would say a few words. call up by writ to that House. He never could have thought, that it The Lord Chancellor spoke at length would have become his duty to defend to the motion. He earnestly entreated the memory of Lord Marsfield against the Noble Earl to follow that advice the reflection which had been thrown which he had recommended to his No. upon it, that his character for the admi- ble and Learned Friend, and to consider nistration of justice had suffered during the question. Was it possible that the a certain period of his life. [His Lord. House could entertain a question which ship here read many passages from the was tantamount to a negation of the unspeech of Lord Marishield, upon the mo doubted prerogative of his Majesty to tion brought forward against him in the appoint his own Council ? Look to the year 1774.] His Lordship next obser- Journals of the House ; was there a ved upon the cases of Chief Justices precedent of such a motion upon them? Holt, Lee, Mansfield, Kenyon, the last If the principle contained in the motion of whom, it was said, was only oçca. were pushed to its utmost extent, the sionally called to the Council. There effect of it ultimately would be to pull was nothing, he said, which should pre- down the Monarchy. He had lived vent a firm and upright judge from do- long enough to see the absurdity of ing his duty, both as the head of the making Constitutions from theories. If criminal judicial power, and as one of this motion were to pass, the next, he his Majesty's Cabinet Council. He cit- supposed, would be, that rone of the ed from a mioute of the Council, a pre Law Lords should have a seat in that cedent, on the oth of June 1780. House. His Lordship pronounced a When Chief Justice Wedderburn attend warm eulogium upon the trial by Jury, ed it to enquire into the cause of the in which he contended the safety of the late riots, he was one of the sub-com- subject consisted, and not in fanciful mittee which collected the evidence theories about the division of the Judiand reported upon it to his Majesty, and cial and Executive power. It shoold afterwards was one of the Commission be remembered that Lord Mansfield which sat in the borough for the trial lived in hot times, when many virtuous of the rioters. He trusted, that he had and well meaning men were to be found, pretty well disposed of the question but during which also there were some with respect to law, constitution, and knaves, who made a stalking horse of practice; he would next say a litle as libertv. He hoped the Noble Earl to expediency. Noble Lords seemed to would save him the trouble of putting have adopted a very perverse mode of the question upon the motion he held in. reasoning upon the subject. They al. bis hand. lowed that the Judges might continue The question being loudly called for, impartial when the life of the Sovereign was put by the Chancellor, who declarwas attempted; when the country was ed that the Non-contents had it. No atte mapted to be deluged in blood; division was demanded.
CAPTURE OF THE CAPE OF Good Hope. apprise your Lordship of the measures
adopted to refresh the force under my N the 31st of August last, a consi.
derable armament, consisting of 69 command; and having, with much dif. transports, with about 8000 troops, feur
ficulty, procured about 70 borses for the ships of the line and two frigates, and
cavalry, and the sick being recruited, the seven sail of Indiamen, sailed from
expedition sailed on the 26th; and we Corke, under the command of Major
had the good fortune to reach Table Gen. Sir David Baird, and Commodore
Bay on the 4th instant,
It had been intended to disembark Sir Home Popham. The object of this expedition was kept a profound secret,
the army immediately, and with a view till the result has now been made public. the Bay, the 24th regiment, command
of covering our design, before entering We learn that the passage was rather unfavourable, having met with much bad
ed by the Hon. Lieut.-Col. M‘Donald, weather, both on the way to Madeira, make a demonstration of landing in
was detached with the Leda frigate to and to Rio de Janeiro, where they arrived about the 14th of November. On
Campo Bay, but the wind having fail
ed, the feet did not arrive at its anchothe coast of South America, they had the misfortune to lose the Britannia In
rage until the day was too far advanced diaman and the King George artillery
to attempt a landing.
On the morning of the 5th, the first kransport, on a reef of rocks called Rocca de Noronha. General Yorke, the com
brigade, under Brig.-Gen. Beresford, mander of the artillery on this expedi- towards the only accessible part of the
was embarked in boats, and proceeded tion, was unfortunately drowned. The Britannia, it is said, had 2,000,000 dol- shore, in a small bay, sixteen miles to Lars on board for the China trade, of it appeared practicable to effect a disem
the northward of Cape Town, where which only 100,000 were saved. On the barkation; but the surf had increased so 26th November the expedition sailed considerably, that, combined with the from St Salvador, and reached the Cape local difficulties of the spot, it was found on the 4th January, without any further
to abandon the attempt. accident. The capture of this impor
The rest of the day was devoted to a tant settlement has been announced in
careful examination of the whole of the the following
shore, from Lospard's Bay to within LONDON GAZETTE EXTRAORDINARY, gun-shot of the batteries of Cape Town, Downing-Street, Feb. 28.
but which produced only the distressing
conclusion, that the chance of effecting Dispatches, of which the following are
a landing depended upon contingencies, a copy and extract, addressed to Lord Viscount Castlereagh, were received
very unlikely to be realised but in a yesterday evening, at the office of the
perfect calm. Right Hon. William Windham, one of of delay, in the adoption of a resolution
In order to obviate the disadvantages his Majesty's Principal Secretaries of
which I apprehended would at last be State, from Major General Sir David Baird :
necessarily imposed on me, I directed
Brig.-Gen. Beresford to proceed with Cape Town, Jan. 12, 1806. the 38th regt, and the 20th Light Dra. My Lord, I have the honour to an goons, escorted by his Majesty's ship nounce to your Lordship, the capitula Diomede, to Saldanha Bay, where the tion of the town and Cape of Good disembarkation could be accomplishHope, to his Majesty's arms.
ed with facility, and a prospect was afIn my dispatches of the 24th Nov. forded us of procuring horses and cattle; Árom St Salvador, I had the honour to and purposed following with the main