an office holder or not, as it is to ask for the dismissal of a ministry on the ground that it has forfeited the confidence of Parliament." not to be in the cabinet. In addition to the officers of State above enumerated, Who ought of whom the Cabinet Council is now composed, there are two or three other functionaries who formerly used to be occasionally included in the cabinet, but who have ceased of late years to be considered as eligible for that position. Of these, the most important example is that of the Lord Chief Justice of the Court of King's Bench, whose case is Judicial deserving of particular notice. officers. Ellen borough. Prior to the year 1806, there had been one or two instances of Case of persons holding this office being made members of the cabinet. Lord Lord Hardwicke, in 1737, while Lord Chief Justice, was, for a brief period, and under peculiar circumstances, a cabinet minister. While presiding at the Court of King's Bench he was appointed Lord Chancellor, with a seat in the cabinet, but did not resign his chief justiceship until nearly four months afterwards. Afterwards, Lord Mansfield sat in the cabinet for several years, while he was Lord Chief Justice. But neither of these instances excited public attention at the time. In 1806, however, the prime minister, Lord Grenville, being desirous of strengthening his administration by the assistance of Lord Ellenborough, then Chief Justice of the King's Bench, recommended him to the king for the office of Lord President of the Council, which carried with it a seat in the cabinet. The appointment took place, but soon afterwards a resolution was proposed in the House of Lords, on March 3, 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 of common law. On the same day three resolutions were proposed in the House of Commons, which were to the same general effect, but more carefully framed. They set forth that it was highly expedient that the functions of a minister of State, and of a confidential adviser of the executive measures of the government, should be kept distinct and separate See the case of Lord Melville, in 1805, Parl. Deb. vol. iv. pp. 335, 344355; Stanhope, Life of Pitt, vol. iv. Pp. 283,294. Harris' Life of Hardwicke, i. 358. In like manner Lord Eldon, when appointed Chancellor, in 1801, declined to relinquish his office of Chief Justice of the Common Pleas for Case of from that of a judge at common law;' and that the summoning of the Lord Chief Justice to this position was 'peculiarly inexpedient and unadvisable, tending to expose to suspicion, and bring into disrepute the independence and impartiality of the judicial character, and to render less satisfactory, if not less pure, the administration of public justice.' The resolution in the Lords was ably advocated by Lords Eldon and Hawkesbury, and those in the Commons by Mr. Canning, Lord Castlereagh, and others; nevertheless the ministry was sustained in both Houses, and the resolutions were rejected in the Lords without a division, and in the Commons by a large majority. The principal arguments urged in support of the resolutions were to the effect that while it was admitted that the king had an abstract right to summon whom he would to the Privy Council, and by consequence, to a seat in the cabinet, yet that it was highly inex pedient, and opposed to the principles of good government, for a seat in the cabinet to be held by anyone in conjunction with a permanent non-political office. Otherwise it might happen that an individual in his capacity of minister of the crown might incur odium and the censure of Parliament for political conduct, so as to occasion his dismissal from the councils of his sovereign, and yet still remain a public servant, although necessarily weakened in his efficiency by the stigma that had fallen upon him for political faults. Such a position is always to be deprecated, but more especially the case of a judge, whose tenure of office is during good behaviour, and who is not removable except upon the joint Address of the two Houses of Parliament. The case of Lord Mansfield was the one chiefly relied upon by the defenders of Lord Ellenborough's appointment, that of Lord Hardwicke having been too exceptional to be taken as a precedent, and no instances prior to the Revolution being now in point, because of the great principle of the independence of the judges which was then asserted, and was subsequently confirmed by the Act of 1 George III. Lord Mansfield's occupancy of a seat at the Council Board, whilst holding a judicial office, was, however, unknown at the time to either House of Parliament, and was not made public until several years after he resigned the same. It was also alleged that Lord Mansfield, after holding a seat in the cabinet from 1757 to 1765, became convinced of the impropriety thereof, and withdrew from it in 1765, expressing regret for his having been induced to continue so long in an indefensible position; and that nevertheless he did not escape from public reproach, and the loss of popularity • See Hallam, Const. Hist. vol. iii. p. 262. 'See Campbell's Lives of the Chief Justices, vol. ii. pp. 450, 460, 466, 497. which overtook him so soon as the fact became known, that he had been a cabinet minister whilst holding a permanent judicial office. Furthermore, the dictum of Blackstone was cited, in condemnation of this appointment, wherein he said that nothing is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of State.' & And here it may be observed, that the position of the Lord Chan- The Lord cellor, as a member of the cabinet, appears, at first sight, open to Chancellor. similar objections, inasmuch as he also combines the functions of a judge with those of a minister. But his situation differs materially from that of the common law judges. He ouly decides questions of property, and, with the exception of trials before the House of Peers has no jurisdiction in matters of criminal law. Moreover, apart from his duties as principal legal adviser of the crown, he is necessarily concerned in advising upon weighty affairs of State; and, as a natural consequence, is properly removable from office with every change of administration. To revert to the case of Lord Ellenborough. No doubt there Lord have been numerous instances, both before and since the Revolution, Ellenborough. wherein common law judges, in their capacity of privy councillors, have been summoned to attend meetings of the Privy Council, or of committees thereof, which have been specially convened to take evidence in certain State enquiries concerning treasonable conspiracies, public riots, or the like. But such services are totally distinct from deliberations in the cabinet upon points of public policy, which are determined upon political considerations. Recognising this obvious distinction, it will be seen that the resolution proposed to the House of Lords, in reference to Lord Ellenborough's appointment, was technically incorrect, inasmuch as the judicial investigations in question are formally entrusted to a committee of the Privy Council, which includes not only the judges, but cabinet ministers and others, who are likely to be of service in prosecuting the inquiry. On the other hand, the resolutions against this appointment, which were submitted to the House of Commons, though they failed to receive the sanction of the House at the time, owing to its being made a ministerial question, were undeniably correct in principle. Such an appointment would now be regarded as open to grave constitutional objections; not because it would be an instance of a seat in the cabinet disconnected from an administrative office-for this we have seen is not essential-but because, being an independent h Black. Com. b. i. c. VII. p. 269. And see Brougham, Brit. Const. pp. 318, 359. See May, Const. Hist. vol. i. p. 88; Bowyer, Const. Law, p. 173; Campbell's Chief Justices, vol. iii. Archbishop of Canterbury. judicial office, it is incompatible, on true constitutional principles, with the position of a responsible adviser of the crown. For however pure might be the conduct of one in such a situation, he would be sure to bring suspicion upon the administration of justice before him in all political cases. Moreover, as has been pertinently suggested by Lord Campbell, 'the mischief is not confined to the period when he actually continues a cabinet minister; for when his party is driven from power, although all his colleagues are deprived of their offices, he still presides in the Court of King's Bench, and there is much danger that in government prosecutions he will be charged with being actuated by spite to his political opponents.'1 Fortified by the decision of Parliament in his favour, Lord Ellenborough retained for a while his place at the Council Board; but before the end of the year a change of ministry occurred, which compelled him to relinquish it. The mature and unbiassed opinion of Parliament upon the question may be gathered from a debate in the House of Lords on July 7, 1837, upon the Lords' Justices Bill, wherein the union of political functions with those of permanent judicial offices was unanimously reprobated by the highest legal and constitutional authorities. The son of the late Lord Ellenborough informed the House, upon this occasion, that he had heard his father say that, while he thought those who defended his appointment to a seat in the cabinet had 'very much the best of the argument,' nevertheless, if the thing were to be done again, he should not act as he had done. J The Archbishop of Canterbury appears in the list of cabinet ministers during the administration of Sir Robert Walpole, though not as a member of the 'interior council.'* Contemporary memoirs represent him, at this period, as taking an active part in politics, and conferring with his colleagues on affairs of State.' But we may safely conclude that no similar appointment would now take place, not only because of the altered relations between the Established Church and the State, arising out of the Roman Catholic Emancipation Act, and the repeal of the civil disabilities of dissenters, but on account of the altered state of public opinion in reference to the active participation of clergymen in political affairs. Both the m p. 383; vol. iii. p. 453. m See an article in the Law Magazine for May, 1862, on Holy Orders, as disqualifying for the House of Commons or the Bar. the Mint. Archbishops of Canterbury and York, however, claim a prescriptive right to be summoned to the Privy Council ; and a similar honour is usually conferred upon the Bishop of London. The claim of the Archbishop of Canterbury to a seat in the Privy Council dates back to ancient times, when this dignitary occupied a very prominent and influential position in the government of the country." The Master of the Mint is another functionary who Master of used to form part of the administration, with occasionally a seat in the cabinet, but who is now excluded therefrom. This office is one of much responsibility, and from an early period in the reign of George III. was accounted of high political consideration, and always filled by a prominent member of the existing ministry. This led to its being regarded very much in the light of a sinecure; and it became usual, at length, that it should be held in conjunction with some other public department. Pursuant, however, to the recommendation of a Royal Commission, in 1849, on the constitution and management of the Mint-which was confirmed by the Commons' Committee on Official salaries in 1850-the Mastership of the Mint has ceased to be a political office, and is now made permanent, the incumbent being the working head of a numerous establishment, under the superintendence of the Treasury. A similar arrangement in regard to the office of First Commissioner of Public Works was advised by a committee of the House of Commons, in 1860, who were of opinion that great public advantages would result from this department being made permanent and non-political," In the 10th Rich. II. the Archbishop of Canterbury delivered to Parliament a solemn protest, claiming for himself and his successors the right of being present at all the king's councils, whether general, or special, or secret (Rot. Parl. vol. iii. p. 223). The Archbishop of York also asserts his prescriptive right to be one of the king's councillors; Nicolas, Pro. Privy Coun. vol. i. p. VOL. II. M iii. And See Brodrick's Judgments Rep. Com. on Off. Salaries, Com- Rep. on Misc. Exp. Commons' |