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.