CHAP. CLXXXIV. extremely anxious about the event of it. He loved the child with paternal affection, and the idea of having her torn from him seemed to be as painful to him as it was to Mrs. Fitzherbert." An appeal being brought to the House of Lords against Lord Eldon's order, His Royal Highness made his wishes on the subject generally known, and actively canJune, 1806. Vassed Peers to attend and vote for a reversal. The hearing of the appeal excited more interest than any judicial proceeding in the House since the Douglas cause. All notion of Mrs. Fitzherbert being appointed guardian was abandoned, but the effort was to have the Marquess and Marchioness of Hertford appointed, there being an understanding with them that they would not remove the child from Mrs. Fitzherbert. Lord Eldon having stated the reasons for his decree, to which he adhered, left the House. Lord Chancellor Erskine moved a reversal of the decree, and that the Marquess and Marchioness of Hertford should be appointed guardians, on the ground that the Marquess was nearest in blood to the infant. Sir Samuel Romilly, who was counsel for the appellant, says, "Several Peers voted against this, but there was no division. I counted between eighty and ninety Peers who were present the Prince, who was as anxious that Mrs. Fitzherbert should continue to have the care of the child as he could have been if the child had been his own, and who knew that Lord and Lady Hertford would not remove her, had earnestly entreated all his friends to attend. I had, on the Prince's account, done every thing that depended on me to prevent this; and which was only to represent to Colonel M⚫Mahon what I thought of such a proceeding. The question was certainly one which involved no legal consideration whatever, and which every Peer was as competent to decide as a lawyer could be, but yet to canvass votes for a judicial decision, is that which cannot be too strongly reprobated." * Life of Romilly, ii. 146. CHAPTER CLXXXV. CONTINUATION OF THE LIFE OF LORD ERSKINE TILL HE RESIGNED CHAP. A. D. 1806. in the House of Peers. His egotist speech WE must now regard Erskine in his political capacity while he was a member of the Fox and Grenville Government. He CLXXXV. does not seem to have had any great weight either in Parliament or in the Cabinet. He rather shocked the Peers by Erskine the egotism of his maiden speech among them, which was upon the bill to indemnify witnesses who were to be examined on the trial of Lord Melville. "I feel it my duty, my Lords," said he, "to communicate my sentiments on a tie maiden subject of so much consequence to proceedings in Courts of there. Law. I have been seven and twenty years engaged in the duties of a laborious profession, and while I have been so employed I have had the opportunity of a more extensive experience in the Courts than any other individual of this generation. In the profession there have been and there now are men of much more learning and ability than I pretend to, but it is very singular that in these twenty-seven years I have not for a single day been prevented from attending in the Courts by any indisposition or corporeal infirmity. Within much the greater part of this period I was honoured with a patent of precedency, and have been engaged in every important cause in the Court of King's Bench. Your Lordships would have no concern with the history of my political life were it not connected with the present inquiry; but when I declare that I have never known an objection taken to an interrogatory, that the answer might subject the witness to a civil suit,' it is material for your Lordships to know that my experience is not only equal to that of any individual Judge, but of all the Judges collectively. A decision of Lord Kenyon to the contrary has been cited; but the report must be wrong, for I was counsel CHAP CLXXXV. A. D. 1806. Bill to de clare that a witness in the cause, and I have no recollection of such a point having been mooted, and the opinion imputed to Lord Kenyon is different from what I have often heard him express. I must, therefore, oppose this bill, and recommend that our legislation on the occasion be confined to an act cannot ob- declaring the existing law; and that, I think, will be sufficient to obviate the danger of witnesses refusing to be examined tions on the because their answers may affect their civil rights, and if no other Lord more competent will undertake the task, I will myself bring forward a measure which will place the question for ever in repose. He accordingly introduced a declaratory act to that effect, which passed both Houses, and received the royal assent. ject to answer ques ground that his answers may subject him to a civil suit. March 3. 1806. Debate on the appointment Justice of the King's Bench to a Cabinet. The first hostile discussion which took place in the House of Lords after the formation of the new Government was upon the appointment of Lord Ellenborough, Chief Justice of the Chief of the King's Bench, to a seat in the Cabinet. Lord Eldon and other Peers having strongly condemned it on the ground that the Cabinet Minister might have, as a Judge, to try the seat in the prosecution, for treason or sedition, which he had recommended and on the event of which the stability of the Government might depend, the Chancellor left the Woolsack to plead for it, but was not very successful. After a laboured panegyric upon the learning and talents of Lord Ellenborough, he contended that the King was entitled to the assistance in council of all his subjects, and that no office, civil or military, lay or ecclesiastical, was a disqualification to a subject performing the duties of a Privy Councillor. denied that the summoning of the Chief Justice of the King's Bench to the Committee of the Privy Council, commonly called the CABINET, was either illegal or unconstitutional. "The Cabinet," said he, "is a word never mentioned in any Act of Parliament, or in any parliamentary proceeding, and is wholly unknown to the law and the constitution. The King has his Great Council, consisting of the two Houses of the Legislature, and his Privy Council, consisting of such individuals as he chooses to swear to give him faithful advice on affairs of state. He seldom summons all Erskine's defence of this measure. He CLXXXV. A. D. 1806. these in a body into his presence, referring particular subjects CHAP. to particular members of the Privy Council, who are responsible respectively for the advice which they give to him. No one denies that a Judge may properly be sworn of the Privy Council, and since the Revolution the chiefs of the Courts in Westminster Hall have generally had this honour conferred upon them. But it would be an unqualified interference with the King's prerogative to tell him that he shall not ask advice of a Privy Councillor. It has not been usual for the Chief Justice of the King's Bench to be summoned to the Committee of the Privy Council, called the Cabinet; but that venerable magistrate Lord Mansfield was constantly so summoned, during several administrations, without any complaint or suspicion that thereby the law or the constitution had been violated. There have been repeatedly Lords Justices named to exercise the functions of the Executive Government in the absence of the Sovereign, and the Lord Chief Justice of the King's Bench for the time being has generally been one of them, without any suspicion being cast upon his judicial purity. As to prosecutions for treason, Judges, members of the Privy Council, have often attended when persons arrested on charges of treason have been examined, and I believe that prosecutions for libel are left to the Attorney General and the Home Secretary. Notwithstanding the elevated situation which I occupy in this House, by the pleasure of my Sovereign, I will never forget my duty to the people, whose partiality I have so long enjoyed. I will ever bear in mind the active and successful part which I have taken to support TRIAL BY JURY; and if I saw any danger to public liberty in the appointment of Lord Ellenborough to a seat in the Cabinet, I should have been the first to oppose it; but taking a totally different view of the subject, I shall be glad, sitting by the side of my noble and learned friend, to consult, in conjunction with him, for the public welfare." The resolution of censure was negatived without a division*, Condemnabut the appointment was condemned by the public voice, and tion of it. justly brought a great slur upon "ALL THE TALENTS." To urge that the "Cabinet is not known to the law," is a mere * Parl. Deb. vol. vi. vii. CLXXXV. CHAP. quibble.* By our constitution in practice, it is a defined and acknowledged body for carrying on the executive government A. D. 1806. of the country, and the question cannot be evaded, whether a Judge employed in administering the criminal law may constitutionally belong to it? I without hesitation answer in the negative. The duties of Criminal Judge and Member of the Cabinet are incompatible. I can say from my own experience under Lord Grey's administration, which may now be referred to as matter of history, that the policy of instituting prosecutions both for treason and seditious libels does and must come under the consideration of the Cabinet. Suppose that the Chief Justice of the King's Bench being a Member of the Cabinet, absents himself from such discussions, how are the public to know that he was absent when he comes to preside at the trials ordered by his colleagues? —and if he were to proclaim the fact, how can he, without suspicion, give an opinion upon the seditious tendency of a publication which contains much abuse of the public measures to which he is a party? The evil does not cease with the Government to which he belonged, for when that is dissolved and his political rivals are in power, - being stamped with the character of a partizan, he is in danger of being suspected of a wish to thwart their prosecutions, and thereby to hasten their fall.†-I do not think there is now much danger of the precedent being followed. 15 It might be very convenient for a Prime Minister, upon a requisition by some aspiring subordinate to be introduced into the Cabinet, to be able to say to him, My dear friend, the Constitution knows nothing of the CABINET: you are already a Privy Councillor,' and before the law all Privy Councillors are equal. I am glad that I have not to refuse a request of yours: do not let me hear another word about the Cabinet; you and I have an equal right to be consulted by the Sovereign when the advice of either of us is wanted." † When Mr. Perry, the proprietor of the "Morning Chronicle," was tried in the year 1810, for a libel on George III., and was acquitted under the direction of Lord Ellenborough, I happened to be sitting, along with several other juniors, immediately behind Sir Vicary Gibbs, the Attorney General, who turned round to us and said in a loud whisper, "We shall never again get a verdict for the Crown while the Chief Justice is in opposition." Yet the acquittal was allowed by all impartial persons to be highly proper, the alleged libel merely alluding, not disrespectfully, to the prejudices of the reigning Sovereign against his Roman Catholic subjects. Gibbs had a spite against Ellenborough, who said of him that "his nose would take ink stains out of linen."— Sir Vicary went generally by the soubriquet of SIR VINEGAR; and one fine summer's day, looking more than usually acetous, the phenomenon was thus accounted for: "The Sun's bless'd beam turns VINEGAR more sour." |