of secretary of state for foreign affairs, he should be in a situation where he could more effectually contribute to the restoration of peace, decided his choice, and determined him to prefer a place with little or no patronage, to one which has infinitely the greatest influence and patronage of any in the government. When Mr. Fox declined to be first lord of the treasury, that place naturally devolved on lord Grenville. But, lord Grenville held the office of auditor of the exchequer, which is incompatible with that of a lord of the treasury. It could not be expected that lord Grenville would resign the auditorship of the exchequer, a place which he held for life, on being made first lord of the treasury, from which he might be removed at the pleasure of the crown. It was, therefore, necessary to bring a bill into parliament, to enable the auditor of the exchequer, if appointed to the place of a lord of the treasury, to accept of that office without forfeiting his place of auditor; and that this might be done without injury to the public, he was empowered to name a trustee to hold the office of auditor, while he continued to be a lord of the treasury; which trustee should be responsible to the auditor for the salary, and to the public for the due execution of the office. No opposition was made to this bill in parliament. One of the ex-ministers, in recommending some alteration of the bill as originally proposed, declared, that "If what he had to say should induce the noble lord (Grenville) to take another office, he should feel very serious concern from the circumstance." Yet, this measure, though unattended with the slightest

risk or inconvenience to the public, has been made a subject of the most frivolous and unfounded censure out of doors, against both the mover of the bill, and the noble lord on whose account it was passed; and, ridiculous as it may seem, it has been swelled into a serious charge against the administration of which it was the act.

The appointment of lord Ellenborough to a seat in the cabinet, was a measure of a more doubtful policy. When lord Sidmouth joined the administration, he is said to have stipulated, that, besides himself, one of his friends should have a place in the cabinet, and the known constitutional principles, and personal character of lord, Ellenbo rough, are supposed to have pointed him out to Mr. Fox and lord Grenville, as the most eligible of lord Sidmouth's friends for that situation.

But lord Ellenborough was lord chief justice of England, and, with the exception of lord Mansfield, there had been no instance, since the revolution, of a lord chief justice who had taken an open, undisguised part as an adviser of the crown upon state affairs. Lord Ellenborough's appointment to a seat in the cabinet was, therefore, a subject of general discussion and animadversion out of doors, and at length it was brought before parliament, by the earl of Bristol in the house of lords, and by Mr. Spencer Stanhope in the house of commons.

Lord Bristol moved (March 3d.) a resolution, stating it as the epinion of the house, "That it was highly inexpedient, and tended to weaken the administration of justice, to summon to any committee or assembly of the privy council, any of the judges of his majesty's

courts

courts of common law." This motion was supported by lords Eldon, Boringdon, Mulgrave, and Hawkesbury; and opposed by lord St. John, the earls of Carlisle and Carnarvon, viscount Sidmouth, and lords Holland and Grenville. The question being put, the motion was negatived without a division.

On the same day resolutions of a similar tendency were moved in the house of commons by Mr. Spencer Stanhope. They were supported by Mr. Canning, lord Castlereagh, Mr. Percival, and Mr. Wilberforce; and opposed by Mr. Bond, lord Temple, Mr. Fox, lord Henry Petty, and Mr. Sheridan. The previous question being put on the first resolution, was carried by a majority of 158. Ayes 222-Noes 64. It was contended by the opposition, that there had been no prece dent since the revolution, of a chief justice being at the same time a cabinet minister, except the solitary case of lord Mansfield, which, from its injurious effects on the character and reputation of that celebrated judge, was rather a beacon to be shunned than an example to be followed. It was argued from Montesquieu and Blackstone, that it was a fundamental maxim of all free governments, and a recognized principle of the English constitution, to keep separate and distinct the legislative, executive, and judiciary powers of the state.

It was

urged, that in vain had parliament passed the most salutary acts to secure the independence of the judges, if the allurement of so high and honourable a situation as a place in the cabinet, could be used as an enticement to detach them from their proper business, and connect them with the parties and

politics of the day. It was demanded, whether a judge, who had been associated with the deliberations of the ministers, and become a party to all their measures and feelings, could be deemed a proper person to conduct state trials, or to preside at trials for libels or sedition, to which those ministers must of necessity be parties, either as prosecutors or as culprits? Was it right in itself, or compatible with the pure and unbiassed mind, which should belong to a judge, that the same person who had been present at the deliberations of the council which determined to try an offence, who had possibly been the individual counsellor by whose advise that resolution had been adopted, and who had assisted and taken an active part in all the previous inquiries and examinations of the case, should at length preside over, and conduct the trial, charge the jury, and, if a verdict was found for the prosecution, award, and in many cases arbitrarily fix, the degree of punishment? An upright judge might preserve his impartiality in these circumstances, but it would be difficult to persuade the public that he had no bias, no leaning to wards his colleagues. He might administer justice with purity and integrity, though a cabinet minister, but his acceptance of a cabinet place would materially lessen the confidence of the public in his decisions, whenever questions of a political nature were tried before him. But a judge should not only be above all bias, but above all suspicion of bias. "It was not enough that the administration of justice should be perfectly free and ́uninfluenced by government; it was not enough that it should be pure,

but

but it should also be beyond the reach of suspicion, and so exercised as to give perfect satisfaction to all his majesty's subjects. The appointment of lord Ellenborough to a seat in the cabinet, was not illegal nor unconstitutional, but it was unadviseable and inexpedient." * Much stress was laid by some members of opposition, on a doctrine which they had collected from newspapers and pamphlets, that the cabinet, as such, is responsible for the advice given to his majesty, and consequently for the measures of administration; and it was asked triumphantly, whether it was desirable that the chief justice of England should be involved in that responsibility? Why should his character and influence, in short, all his best means of doing good be unnecessarily embarked in the frail and uncertain fate of any administration +."

It was answered by the ministers, that we were not to take our principles of the English constitution from the theories of Montesquieu and Blackstone (though the latter had been misunderstood by those who had appealed to his authority on this occasion) but to gain our knowledge of it from the study of precedents, and from the practice of our forefathers, It was idle to talk of the separation of the legislative, executive, and judiciary powers in England, where one of the branches of the legislature was the supreme court of law, and had usually for its speaker the first law-officer of the kingdom; where the servants of the crown sat in both honses of parliament, and where the chief justices were privy counsellors and

* Lord Eldon.

sworn advisers of the crown, in all matters relating to the honour of the king and to the good of his. people. It was contended, that from the earliest periods of our his tory, the judges had been employed and consulted by the crown, in the executive department of the state. Various instances were adduced from our history, where chief justices had been specially named as constituent members of councils appointed to advise the king, or in the case of his absence or minority, to administer the government of the kingdom. In the celebrated privy council of Charles II. which that monarch adopted at the suggestion of sir William Temple, for the express purpose of conciliating the confidence of his people, the chief justice of the common pleas had, by right of his office, a seat. In the bills of regency passed during the reign of queen Anne, as well as in those enacted in the reigns of George II. and of his present majesty, the chief justices were included; and, though much debate had arisen on some of these bills, no person had objected to them on that account. Lord Mansfield was not the only chief justice, since the revolution, who had attended the committees of the privy council, called cabinetcouncils; nor was it admitted, that because he attended them he had become unpopular as a judge. Lord Hardwicke had held the of fice of chief justice for six months, along with a seat in the cabinet. Chief-justice Parker had been one of the council of regency, in the interval between the death of queen Anne, and the arrival of George 1. Chief-justices Lee,