The Constitutional History of England From 1760 to 1860

Lord Campbell gives to the Chancellor, Lord Erskine, who, 'instead of allowing the House of Lords to sit to hear the case a few days in a year, and, when sitting, being converted from a court of justice into a theatre for rhetorical display, insisted that it should sit, like every other criminal tribunal, de die in diem, till the verdict was delivered. And he enforced both upon the managers of the House of Commons and on the counsel for the defendant the wholesome rules of procedure established for the detection of crime and the protection of innocence.'[152] It is well known that on the trial of Hastings the managers of that impeachment, and most especially Burke, claimed a right of giving evidence such as no court of law would have admitted, and set up what they entitled 'a usage of Parliament independent of and contradistinguished from the common law.'[153] But on that occasion Lord Thurlow, then Chancellor, utterly denied the existence of any such usage-a usage which, 'in times of barbarism, when to impeach a man was to ruin him by the strong hand of power, was quoted in order to justify the most arbitrary proceedings.' He instanced the trial of Lord Stafford, as one which 'was from beginning to end marked by violence and injustice,' and expressed a 'hope that in these enlightened days no man would be tried but by the law of the land.' We may fairly agree with Lord Campbell, that it is to be hoped that the course adopted by Lord Erskine in this case has settled the principle and mode of procedure for all future time; since certainly the importance of an impeachment, both as to the state interests involved in it, and the high position and authority of the defendant, ought to be considered as reasons for adhering with the greatest closeness to the strict rules of law, rather than for relaxing them in any particular.

But, as was natural, the public could spare little attention for anything except the war, and the arrangements made by the minister for engaging in it with effect; the interest which such a state of things always kindles being in this instance greatly inflamed by Napoleon's avowal of a design to invade the kingdom, though it is now known that the preparations of which he made such a parade were merely a feint to throw Austria off her guard.[154] During Addington's administration Pitt had spoken warmly in favor of giving every possible encouragement to the Volunteer movement, and also in support of a proposal made by an independent member, Colonel Crawford, to fortify London; and one of his first measures after his resumption of office was a measure, known as the Additional Force Bill, to transfer a large portion of the militia to the regular army. It was so purely a measure of detail, that it would hardly have been necessary to mention it, had it not been for an objection made to it by the Prime-minister's former colleague, Lord Grenville, and for the reply with which that objection was encountered by the Chief-justice, Lord Ellenborough; the former denouncing it as unconstitutional, since, he declared, it tended to establish a large standing army in time of peace; and Lord Ellenborough, on the other hand, declaring the right of the crown to call out the whole population in arms for the defence of the realm to be so 'radical, essential, and hitherto never questioned part of the royal prerogative, that, even in such an age of adventurous propositions, he had not expected that any lord would have ventured to question it.'[155]

Pitt died in the beginning of 1806, and was succeeded by an administration of which his great rival, Fox, was the guiding spirit while he lived, though Lord Grenville was First Lord of the Treasury, and, after Fox's death, which took place in September, the undisputed Prime-minister. But the formation of the administration was not completed without a step which was at once strongly denounced, not only by the regular Opposition, but by several members of political moderation, as a violation, if not of the letter, at least of the spirit, of the constitution, the introduction of the Lord Chief-justice, Lord Ellenborough, into the cabinet. It was notorious that he was invited to a seat among that body as the representative of a small party, the personal friends of Lord Sidmouth. For the ministry was formed in some degree on the principle of a coalition; Lord Grenville himself having been a colleague of Pitt throughout the greater part of that statesman's first ministry, and as such having been always opposed to Fox; while Lord Ellenborough had been Attorney-general in Addington's administration, which avowedly only differed from Pitt on the single subject of the Catholic question.

The appointment was at once made the subject of motions in both Houses of Parliament. In the House of Lords, Lord Bristol, who brought the question forward, denounced 'this identification of a judge with the executive government as injurious to the judicial character, subversive of the liberty of the people, and having a direct and alarming tendency to blend and amalgamate those great elementary principles of political power which it is the very object of a free constitution to keep separate and distinct.' In the House of Commons, Mr. Canning took a similar objection; and, though he admitted that a precedent for the act might be found in the case of Lord Mansfield who, while Chief-justice, had also been a cabinet minister in the administration of 1757, he argued forcibly that that precedent turned against the ministry and the present appointment, because Lord Mansfield himself had subsequently admitted that 'he had infringed the principles of the constitution by acting as a cabinet minister and Chief-justice at the same time.' Fox, in reply, relied principally on two arguments. The first was, that 'he had never heard of such a thing as the cabinet council becoming the subject of a debate in that House. He had never known of the exercise of the King's prerogative in the appointment of his ministers being brought into question on such grounds as had now been alleged.' The second, that 'in point of fact there is nothing in the constitution that recognizes any such institution as a cabinet council; that it is a body unknown to the law, and one which has in no instance whatever been recognized by Parliament.' He farther urged that as Lord Ellenborough was a privy councillor, and as the cabinet is only a select committee of the Privy Council, he was, 'in fact, as liable to be summoned to attend the cabinet, as a privy councillor, as he was in his present situation.'

The last argument was beneath the speaker to use, since not one of his hearers was ignorant that no member of the Privy Council unconnected with the government ever is summoned to the deliberations of the cabinet; and though, as he correctly stated, 'there is no legal record of the members comprising any cabinet,' it may safely be affirmed that since July, 1714, when the Duke of Argyll and the Duke of Somerset claimed admission to the deliberations of the ministers, on account of the danger in which the Queen lay, though they admitted that they had received no summons to attend,[156] there has been no instance of any privy councillor attending without a summons; nor, except at the accession of a new sovereign, of summonses being sent to any members of the council except the actual ministers. The second argument was even worse, as being still more sophistical. It might be true that no law nor statute recognized the cabinet as a body distinct from the Privy Council, but it was at least equally true that there was no one who was ignorant of the distinction; that it was, in truth, one without which it would be difficult to understand the organization or working of any ministry. The indispensable function and privilege of a ministry is, to deliberate in concert and in private on the measures to be taken for the welfare of the state; but there could be little chance of concert, and certainly none of privacy, if every one who has ever been sworn a member of the Privy Council had a right to attend all its deliberations. Again, to say that the King's prerogative, as exercised in the choice of his advisers, is a thing so sacred that no abuse of it, or want of judgment shown in its exercise, can warrant a complaint, is inconsistent with every principle of constitutional government, and with every conceivable idea of the privileges of Parliament. In fact, Parliament has claimed a right to interfere in matters apparently touching more nearly the royal prerogative, and it is only in the reign preceding the present reign that hostile comments have been made in Parliament on the appointment of a particular person as ambassador to a foreign power. Yet the post of ambassador is one which might have been supposed to have been farther removed from the supervision of Parliament than that of a minister, an ambassador being in a special degree the personal representative of the sovereign, and the sovereign therefore, having, it might be supposed, a right to a most unfettered choice in such a matter.

Stripped of all technicalities, and even of all reference to the manifest possibility of such a circumstance arising as that the Chief-justice, if a member of a cabinet, may have a share in ordering the institution of a prosecution which, as a judge, it may be his lot to try, one consideration which is undeniable is, that a member of a cabinet is of necessity, and by the very nature of his position in it, a party man, and that it is of preeminent importance to the impartiality of the judicial bench, and to the confidence of the people in the purity, integrity, and freedom from political bias of their decisions, that the judges should be exempt from all suspicion of party connection. Lord Campbell even goes the length of saying, what was not urged on either side of either House in these debates, that it was alleged by at least one contemporary writer that Lord Mansfield's position in the cabinet did perceptibly influence some of his views and measures respecting the Press;[157] and, though in both Houses the ministry had a majority on the question of the propriety of the appointment, he records his own opinion[158] that 'the argument was all on the losing side;' and that Mr. Fox showed his consciousness that it was so by his 'concession that the Chief-justice should absent himself from the cabinet when the expediency of commencing prosecutions for treason or sedition was to be discussed.' He adds, also, that 'it is said that Lord Ellenborough himself ere long changed his opinion, and, to his intimate friends, expressed deep regret that he had ever been prevailed upon to enter the cabinet.'

But, if the composition of the cabinet of 1806 has in this respect been generally condemned, on the other hand