is, however, another case, that of Lord Mansfield: that noble lord connected in his own person, from 1757 to 1763, the two situations, the junction of which is now so much complained of. I do not mean to discuss the character of Lord Mansfield, who, like many great men, had good and bad qualities, but certainly the odium attached to it, did not proceed from his merely combining a seat in the Cabinet with the Chief Justiceship of the King's Bench. This combination, however, is said to have been much condemned by Lord Shelburne, and to prove this, a speech of that noble lord has been quoted. I have looked at the quotation, and the words as reported are absolute nonsense, and therefore, I am persuaded, never were uttered by Lord Shelburne. They import that no political man should have anything to do with advising that which it belongs to his department to execute. Why, if this were a fair ground of censure, it would apply to myself and my colleagues beside me, who are every day advising what we are ourselves to execute. To ascribe such an observation to Lord Shelburne is quite ridiculous. It must have been a misprint or some misconception, to which Lord Shelburne, who, like myself, spoke very rapidly, was extremely liable. But, to return to Lord Mansfield; it really astonished me to hear it remarked upon, as a new and surprising article of intelligence, that that noble lord was so many years in the Cabinet, and that some gentlemen heard it this night for the first time. What, that Lord Mansfield could have been so many years in the Cabinet with such different Administrations, with Lord Chatham, the Duke of Newcastle, and Mr. Grenville, and all the time have kept snug in the corner and be unknown. Preposterous supposition! These distinguished men not only knew that Lord Mansfield was in the Cabinet, but they approved it. If they did not, it was not to be imagined that they would have allowed it. The gentlemen on the other side will hardly think that if I conceived the thing of which they complain to be a violation of constitutional principle, I would be a party to it. Let them, then, give the same fair play to Lord Chatham, the Duke of Newcastle, and Mr. Grenville.

"As to the injury likely to result to the constitution, from the introduction of a Chief Justice into the Cabinet, I think the bill of the present reign, which established the independence of the judges, is a sufficient answer to that apprehension.* But I now come to the specific objections made to a Chief Justice of the Court of King's Bench sitting in the Cabinet. Now, the first relates to libels; but in reply to this, I shall only say, that I never heard of such a thing as the propriety of prosecuting for a libel being agitated in a Cabinet Council; I never witnessed anything of the kind, and I do not find

* By the Act of Settlement, 12 and 13 Wm. III. c. 2, it is enacted that the judges shall hold their commissions, not as theretofore, during the royal pleasure, but during their good behaviour. Their commissions, however, became vacant on a demise of the Crown, until they were continued for six months longer by 1 Ann. stat. 1, c. 8: and by 1 Geo. III. c. 23, they are to continue in full force during their good behaviour, notwithstanding any demise of the Crown; provided always, that it may be lawful for the Crown to remove any judge on the address of both Houses of Parliament.

from any of those who were in the Cabinet during the period when many prosecutions took place, that the subject of such prosecutions was ever discussed there. Sure I am, that no such discussion ought to take place there. The consideration of questions of that nature properly belongs to the office of the Secretary for the Home Department, with whom it rests to give orders to the Attorney-General to prosecute. But, the case of treason has been alluded to. Upon questions of this kind, Lord Ellenborough is as liable to be summoned to attend the Cabinet as Privy Councillor, as he is in his present situation. But I contend, that he is not so likely to be seriously prepossessed by such previous examinations as the magistrates are, who commit prisoners, or as the judges of the King's Bench are, when they grant an information upon the affidavit of one of the parties, without sending the charge to the grand juries. I have, however, no hesitation in saying, that when a subject of high treason comes on for discussion in the Cabinet, which may be afterwards brought to trial in the Court of King's Bench, the absence of the noble lord who is the subject of this debate from any such discussion would be most becoming. I should certainly feel it right to absent myself upon such an occasion, if in the circumstances of the noble lord. But how many are the subjects connected with war and peace, with our commerce and finances, upon which a lord chief justice may be consulted without exciting the slightest jealousy or objection! On these points, however, it is said, you must not consult him, because if you do, you make him a politician. And pray do gentlemen forget, that by the very oath of a Privy Councillor, the Chief Justice binds himself to give such advice? If, however, you interdict him, as the advocates of the motion propose, what do you mean to do with him? We have heard of the dinner placed before Sancho Panza: if he wished for fish, that was objected to; and if he wished for meat, an objection was started also; so, between the objections, poor Sancho had no dinner at all. Just in a similar manner do the friends of the motion propose to deal with Lord Ellenborough. The noble lord is made a Privy Councillor, but yet he is not to be consulted upon points of law, lest his mind as a judge should be prepossessed; nor is he to be consulted on points of state, lest he should be made a politician. Thus it was proposed to destroy his functions as a Privy Councillor altogether."

Mr. Fox returned to the subject of the incompatibility of the judicial and legislative functions, and asserted "that such incompatibility was never known to have been rigidly insisted on, but in two instances; the first of which took place under the second government, after the commencement of the Revolution in France; and the second instance was with regard to Turkey, and upon this he had read no law but in the Arabian Nights, and other such works; according to which it appeared that the bashaw and the cadi must always be separate. Adverting to the statutes which applied to this question, he quoted the acts of regency adopted on the proposition of Lord Chief Justice Holt, in the reign of Queen Anne, and to the acts passed in the reign of George the Second, and in the early part of his present Majesty's reign. By the acts passed

in the reign of Queen Anne,* the Lord Chief Justice for the time being was appointed one of the Lord Justices, in whom the executive government was to be vested, till the successor to the Crown, if at the Queen's death such successor were out of the realm, should arrive in the kingdom; and by the acts passed in the reign of George the Second and in the beginning of the reign of his present Majesty,† councils to assist the Regent were appointed; and in each case it was expressly provided that the Lord Chief Justice for the time being of the King's Bench should be one of those councils. Now, it must be evident that in such situations the Chief Justice would have to perform the same functions as Lord Ellenborough would be now called on to execute. It appeared, in fact, that the present Cabinet was formed merely on the model laid down in those celebrated acts; the last of which was supported by the vote of Blackstone, who on this night was quoted as adverse to its principle." After recapitulating and ably enforcing his several arguments, Mr. Fox insisted that the proposition before the House was supported neither by precedent, law, argument, or expediency. He took notice of the observation, that the motion was not brought forward as an opposition question. He assured the honourable mover and his supporters, that he was not at all inclined to provoke opposition to his measures. On the contrary, he should be glad of the support of any set of gentlemen; but if he was to have an opposition, he particularly wished that they might always choose such questions as that now before the House."

The question that the other orders of the day be now read being then put, the House divided: Yeas, 222; Noes, 64.

4 Ann. c. 4, and 6 Ann. c. 7.

† 24 Geo. III. c. 24, and 5 Geo. III. c. 27.

By 7 Wm. IV. & 1 Vict. c. 72, in the event of the next successor to the throne being out of the realm on a demise of the Crown, the Lord Chief Justice for the time being of the Court of Queen's Bench was appointed one of the Lords Justices of the United Kingdom of Great Britain and Ireland, for carrying on the Government until the arrival of such successor in the kingdom.

APPENDIX.

To do away the effects of certain calumnies and misrepresentations, of which Mr. Fox had been the object, in consequence of the motions made by him in the House of Commons on the 13th, 14th, and 15th of December, 1792, he published, in January, 1793, his celebrated letter to his constituents, of which the following is a copy::

"A LETTER FROM THE RIGHT HONOURABLE CHARLES JAMES FOX, "To the worthy and independent Electors of the City and Liberty of Westminster. "To vote in small minorities is a misfortune to which I have been so much accustomed, that I cannot be expected to feel it very acutely.

"To be the object of calumny and misrepresentation gives me uneasiness, it is true, but an uneasiness not wholly unmixed with pride and satisfaction, since the experience of all ages and countries teaches us that calumny and misrepresentation are frequently the most unequivocal testimonies of the zeal, and possibly the effect, with which he against whom they are directed has served the public.

"But I am informed that I now labour under a misfortune of a far different nature from these, and which can excite no other sensations than those of concern and humiliation. I am told that you in general disapprove my late conduct; and that, even among those whose partiality to me was most conspicuous, there are many who, when I am attacked upon the present occasion, profess themselves neither able nor willing to defend me.

"That your unfavourable opinion of me (if in fact you entertain any such) is owing to misrepresentation, I can have no doubt. To do away the effects of this misrepresentation is the object of this letter, and I know of no mode by which I can accomplish this object at once so fairly, and (as I hope) so effectually, as by stating to you the different motions which I made in the House of Commons in the first days of this session, together with the motives and arguments which induced me to make them. On the first day I moved the House to substitute, in place of the Address, the following Amendment :

"To express to his Majesty our most zealous attachment to the excellent constitution of this free country, our sense of the invaluable blessings which are derived from it, and our unshaken determination to maintain and preserve it. To assure

his Majesty, that uniting with all his Majesty's faithful subjects in those sentiments of loyalty to the Throne, and attachment to the constitution, we feel, in common with them, the deepest anxiety and concern, when we see those measures adopted by the Executive Government, which the law authorizes only in cases of insurrection within this realm.

"That his Majesty's faithful Commons, assembling in a manner new and alarming to the country, think it their first duty, and will make it their first business, to inform themselves of the causes of this measure, being equally zealous to enforce a due obedience to the laws on the one hand, and a faithful execution of them on the other.'

"My motive for this measure was, that I thought it highly important, both in a constitutional and a prudential view, that the House should be thoroughly informed of the ground of calling out the militia, and of its own meeting, before it proceeded upon other business.

"The law enables the King, in certain cases, by the advice of his Privy Council, having previously declared the cause, to call forth the militia-and positively enjoins, that, whenever such a measure is taken, Parliament shall be summoned immediately.

"This law, which provided that we should meet, seemed to me to point out to us our duty when met, and to require of us, if not by its letter, yet by a fair interpretation of its spirit, to make it our first business to examine into the causes that had been stated in the proclamation as the motives for exercising an extraordinary power lodged in the Crown for extraordinary occasions; to ascertain whether they were true in fact, and whether, if true, they were of such a nature as to warrant the proceeding that had been grounded on them.

"Such a mode of conduct, if right upon general principles, appeared to me peculiarly called for by the circumstances under which we were assembled; and by the ambiguity with which the causes of resorting for the first time to this prerogative were stated and defended.

"The insurrection (it was said) at Yarmouth, Shields, and other places, gave Ministers a legal right to act: and the general state of the country, independently of these insurrections, made it expedient for them to avail themselves of this right. In other words, insurrection was the pretext, the general state of the country the cause of the measure. Yet insurrection was the motive stated in the proclamation; and the Act of Parliament enjoins the disclosure, not of the pretext, but of the cause so that it appeared to be doubtful whether even the letter of the law had been obeyed; but if it had, to this mode of professing one motive and acting upon another, however agreeable to the habits of some men, I thought it my duty to dissuade the House of Commons from giving any sanction or countenance whatever. "In a prudential view, surely information ought to precede judgment; and we were bound to know what really was the state of the country before we delivered our opinion of it in the Address. Whenever the House is called upon to declare an opinion of this nature, the weight which ought to belong to such a declaration, makes it highly important that it should be founded on the most authentic information, and that it should be clear and distinct. Did the House mean to approve the measure taken by Administration, upon the ground of the public pretence of insurrections? If so, they were bound to have before them the facts relative to those insurrections, to the production of which no objection could be stated. Did they mean by their Address to declare that the general situation of the country was