The Mother of Parliaments Part 10

[Ill.u.s.tration: A CABINET MEETING (THE COALITION MINISTRY OF 1854)

FROM THE DRAWING BY SIR JOHN GILBERT]

The seals of office have been the unconscious cause of more indifferent puns than any other parliamentary inst.i.tution. Statesmen who have never previously been guilty of a sense of humour, and have otherwise led blameless lives, seem unable to refrain from making little jokes on the subject of seal fisheries--jokes which their biographers affectionately enshrine as epigrams in their published Lives.[151] We have fortunately outgrown such humour as this, and puns are nowadays only to be found elsewhere among the _obiter dicta_ of our judges and magistrates upon their respective benches.

[151] Lord Chancellors and Keepers of the Great Seal are very p.r.o.ne to puns. When Lord Campbell replaced Lord Plunket as Chancellor of Ireland he had to cross the Channel in a storm. Plunket's secretary remarked that if the new Chancellor were not drowned, he would be very sick. "Perhaps," said Plunket, "he'll throw up the seals!" Lord Chancellor Westbury once told an eminent counsel that he was getting as fat as a porpoise. "In that case," replied the other, "I am evidently a fit companion of the great Seal." Lord Lyndhurst is another Chancellor who made a joke of this sort. There must be something, too, in the atmosphere of a change of Ministry which evokes bad puns. When Disraeli was appointed to Lord Derby's Cabinet in 1852, more than one eminent politician facetiously remarked that now Benjamin's mess would be five times as great as that of the others.

And, fourteen years later, when the same statesman was bidden to form a Ministry of his own, Lord Chelmsford, whom he had relieved of the Chancellors.h.i.+p of the Exchequer, shamelessly observed that if the old Government was "the Derby," this new one was certainly "the Hoax" (see Martin's "Life of Lyndhurst," p. 481 n., and the "Life of Lord Granville," vol. i. p. 479, etc.).

The Ministry is now formed. The Prime Minister moves into Downing Street; his colleagues hasten to make themselves acquainted with the work of their various departments. The parliamentary concert is about to commence, and it is for the Premier as leader of the Government orchestra to keep his band together as best he may. This is no easy task. A single false note may mar the harmony of the whole performance; the failure of one solitary instrumentalist may cause the dismissal of the entire band. It is the conductor's duty to see that his orchestra plays in unison, or, if not in unison, at least in harmony. He must keep a watchful eye upon each individual, and quash the efforts of any one member to perform a solo upon his own peculiar trumpet. All round the platform sit the members of a former band, stern critics anxious to seize the instruments from the hands of their rivals and show the public how the tune should be played. Their chance will soon arrive. For when the concert has gone on sufficiently long, the popular audience grows weary of the performance and demands something fresh. Another conductor is chosen, and another orchestra engaged to play. The old band is dismissed, and its members are free to return to their former avocations, wiser no doubt, but perhaps poorer men.[152] But though from Parliament to Parliament the performers may vary and the leaders change, the music remains very much the same; and, while the country enjoys the privilege of paying the piper, it is generally the piper who calls the tune.

[152] If Pitt had been dismissed from office "after more than five years of boundless power," says Macaulay, "he would hardly have carried out with him a sum sufficient to furnish a set of chambers in which, as he cheerfully declared, he meant to resume the practice of the Law."--"Miscellaneous Writings," p. 347.

CHAPTER VI

THE LORD CHANCELLOR

From the days of Sir Thomas More to the present time the Woolsack has continuously enriched the annals of English history with famous and distinguished names. The well-known biographies of Lord Campbell, whose habit of writing the lives of the deceased as soon as the breath was out of their bodies added, as Brougham declared, a new terror to death, supply abundant evidence of the statesmanlike qualities that attach to the holders of the office. The most eminent men of their day have held the Chancellors.h.i.+p, proving the truth of Burke's well-known a.s.sertion that of all human studies the law is the most efficacious in forming great men, and that to be well versed in the laws of England is to be imbued in the sublimest principles of human wisdom.

The office of Chancellor is of very ancient origin.[153] It existed in England in the days of the Anglo-Saxon kings, when the official who acted as judicial secretary or clerk to the sovereign is supposed to have derived his t.i.tle from the _cancelli_ or screens behind which he carried on his clerical duties.

[153] Lord Ellesmere observes that in the 8th Chapter of Samuel, Jehoshaphat the son of Abilud, the Chancellor among the Hebrews, was called "Mazur," which, translated into English, becomes "Sopher," or Recorder. "Whether the Lord Chancellor of _England_ as now he is, may be properly termed _Sopher_ or Mazur, it may receive some needlesse question, howbeit it cannot be doubted but his office doth partic.i.p.ate of both their Functions."--"Observations concerning the Office of Lord Chancellor," p. 2.

After their conversion to Christianity, the kings employed the services of a priest as chaplain or confessor, and in the person of the Chancellor the posts of "Keeper of the King's Conscience" and secretary were thus naturally combined. In King Ethelred's time the Chancellors.h.i.+p was divided between the Abbots of Ely, Canterbury and Glas...o...b..ry, who exercised it in turn, each for four months.

The appointment continued for several centuries to be held by a cleric. In the early days of Parliament, indeed, the Chancellor received his writ of summons as a Bishop and not as Chancellor, and, though he attended in the latter capacity in any case, no summons was sent to him if he did not happen to be a bishop. Ecclesiastics were appointed to the Chancellors.h.i.+p, without exception, until the time of Sir Robert Bourchier in 1340, and it was not for a long time after this that spiritual statesmen wholly gave place to lawyers. Thomas a Beckett, William of Wykeham and Cardinal Wolsey, figure prominently among the clerical Chancellors of early times, and it was not until the beginning of the seventeenth century that laymen succeeded in establis.h.i.+ng themselves firmly upon the Woolsack. Since that time no cleric, with the single exception of Bishop Williams, in 1621, has been entrusted with the Chancellors.h.i.+p or the custody of the Great Seal.

One of the chief duties of the Chancellor in early times consisted in affixing the royal Seal with which from time immemorial the will of the sovereign has been expressed. At the present day Royal grants and warrants, Letters-Patent of Peerage or for inventions, Commissions of the Peace, etc., are issued under what c.o.ke calls the _Clavis Regni_.

When the sovereign is absent it acts as his representative, and Parliament itself is opened by a Commission under the Great Seal. This emblem of sovereignty may therefore be considered one of the most important instruments of the Const.i.tution, and, as its loss would entail endless inconvenience, it is given into the custody of the Lord Keeper or Lord Chancellor.[154] As secretary to the King the Chancellor would seem to have been its natural custodian, but when he fell sick or died, or went abroad, it was occasionally placed in other hands. Later on it became the custom to make the Keepers.h.i.+p of the Great Seal a regular appointment, separate and distinct from the Lord Chancellors.h.i.+p.

[154] The Seal was stolen from Lord Thurlow by burglars in 1784, and the offer of a reward of 200 failed to retrieve it. When Lord Chancellor Eldon's house at Encombe caught fire in 1812, he buried the Seal for safety's sake in the garden, and then forgot where he had buried it. His family spent most of the next day digging for it before it was finally recovered. Eldon seems to have taken the fire very easily. "It really was a very pretty sight," he wrote, "for all the maids turned out of their beds, and formed a line from the water to the fire-engine, handing the buckets; they looked very pretty, _all in their s.h.i.+fts_." Campbell's "Lives of the Chancellors," vol. vii. p.

300.

The post of Lord Keeper has been held by statesmen, courtiers, and divines, and the duties of the office have even been undertaken on two occasions by women. Queen Eleanor, the first Lady Keeper, was also the most unpopular. While her husband was abroad in 1253, and the Great Seal was in her custody, she made use of her delegated power to lay a heavy tax on all vessels bearing cargo to London, and showered gifts of English land and places upon her foreign relatives. She thus succeeded in arousing the hatred of the London mob, who expressed their dislike in a material fas.h.i.+on by pelting her with mud. To avoid the fury of the populace Queen Eleanor fled abroad, and only returned to England to take refuge in a convent.[155] The other Lady Keeper, Queen Isabella, who held the Great Seal in 1321, had no actual commission, and was not entrusted with any judicial power. But she kept the Seal in a casket, and delivered it each day as it was required to the Master of the Rolls, and may therefore claim to be included in the list of Keepers.

[155] Queen Eleanor was a remarkable woman. At the age of thirteen she was the author of a heroic poem, and in the following year became a wife. Piers of Langtoft describes her as

"The fayrest Maye in lyfe, Her name Elinore of gentle nurture, Beyond the sea there was no such creature."

The post of Lord Keeper and Lord Chancellor first became identical in Queen Elizabeth's time, when the Great Seal was entrusted to Sir Nicholas Bacon, who, with his son Sir Francis and the great Lord Burghley, may be considered the most eminent of Elizabethan Chancellors. Sir Nicholas has been called an "archpiece of wit and wisdom",[156] and was also well suited physically to combine the two important offices. By nature a man of gigantic size, he grew more bulky with advancing years, and though his dignity was thus increased, the progress of Chancery business suffered in proportion. When he took his seat on the bench, after walking from the Court of Chancery to the Star Chamber, Sir Nicholas always spent some considerable time in recovering his breath. The proceedings were accordingly delayed until he had struck the ground three times with his stick as a signal that he was in a condition to resume work. As was fitting in a man of his position, Lord Keeper Bacon inspired intense awe amongst his subordinates. Indeed, the reverence with which he was universally regarded eventually proved the indirect cause of his death. One day, while he was having his hair cut, he fell into a profound slumber, from which no one had the courage to rouse him. "I durst not disturb you," said the barber, when Sir Nicholas at last awoke, chilled to the bone. "By your civility I lose my life," was the Lord Keeper's reply; and in a few days his prophecy was fulfilled. Though, with Sir Nicholas Bacon, the two posts of Keeper and Chancellor became united, it was not until the time of George III. that the modern system originated of conferring the Great Seal and the t.i.tle of Lord Chancellor simultaneously.

[156] Naunton's "Fragmenta Regalia," p. 38.

In mediaeval days the Chancellors.h.i.+p and the Lord Keepers.h.i.+p were often held in conjunction with other offices. Stratford was Archbishop of Canterbury as well as Lord Chancellor in 1334, and, though his ecclesiastical duties were too onerous to permit of his discharging the functions of the Lord Keepers.h.i.+p, they did not prevent him from retaining to himself the fees of that office. In 1532, Thomas Audley, the Speaker of the House of Commons, was appointed Lord Keeper in succession to Sir Thomas More, and held both appointments simultaneously until he was made Lord Chancellor. And as recently as the reign of Charles II., a Prime Minister, the Earl of Clarendon, combined the posts of Premier and Chancellor.

The office of Lord Chancellor developed into one of primary importance in the time of Edward I., when, from being but a member of the _Aula Regis_, he became the president of a separate court, a Court of Equity. Law and Equity have, to a certain extent, been antagonistic ever since the days when kings were advised by clerics and opposed by lawyers. In the eyes of the latter Equity was often, as Selden says, "a roguish thing," untrustworthy, and largely dependent upon the conscience of individual Chancellors, "and as that is larger or narrower, so is Equity." But however exaggerated the claim of Equity to be the "law of G.o.d," "the law of nature," or "law of reason,"[157]

it has at least vindicated its position in the statutory enactment that, where there is a conflict, its rules are to prevail over those of the Common Law.[158]

[157] "The Fyrste Dyaloge in Englys, between a Doctoure of Dyvynyte and a Student in the Lawes of England" (1539).

[158] Judicature Act of 1873, section 24.

The conscience of some, at least, of England's early Lord Chancellors possessed peculiarly plastic qualities. They themselves were not infrequently ignorant of the principles of law. Occasionally, too, their conduct and character were such that it is hard to imagine them as the fount of Equity or justice. Lord Wriothesley, Chancellor in 1544, combined legal incompetence with the most intense religious bigotry.[159] Chancellor Sir Francis Bacon, philosopher, writer, and lawyer, whose name is one of the most famous in English history, was forced to plead guilty to a charge of "corruption and neglect," for which offence he was deprived of the Great Seal, fined a sum of 40,000, and imprisoned in the Tower. A hundred years later Lord Chancellor Macclesfield was impeached and fined for corrupt practices with regard to the sale of Masters.h.i.+ps in Chancery; while the brutal Jeffreys, stained with the blood of hundreds of innocent and defenceless persons, was another Lord Chancellor whose presence added nothing to the prestige of the Woolsack.[160]

[159] His barbarous treatment of the wretched Anne Askew is notorious.

For denying that the sacramental blood and wine lost their material elements after consecration, Anne was condemned to be tortured, and the Lord Chancellor with his own hands stretched the rack on which the unfortunate woman was bound, in the hope of extracting a confession.

It must, however, be admitted that Wriothesley's heart was not entirely impervious to emotion, for when, as Lord Chancellor, he announced the death of Henry VIII. in the House of Lords, he could not refrain from bursting into tears.

[160] He was, however, an able lawyer, and reserved his orgies for private life. "If my Lord Jefferies exceeded the bounds of temperance now and then in an evening, it does not follow that he was drunk on the bench or in council." (Campbell's "Lives," vol. iii. p. 595 _note_.)

Many centuries elapsed before the standard of judicial morality in England attained its present high level, but even in the earliest days of the Chancellors.h.i.+p we find occupants of the Woolsack combining legal wisdom with particularly blameless lives. The great Sir Thomas More, statesman and author, was as famous for the extreme simplicity of his habits as for the ability with which he despatched Chancery business. The former virtue he almost carried to excess, and his practice of singing in the choir of the parish church at Chelsea, dressed in a surplice, surprised and even shocked his contemporaries.

"G.o.d's body!" once exclaimed the Duke of Norfolk, seeing More thus attired and singing l.u.s.tily; "My Lord Chancellor a parish clerk! You dishonour the King and his office." "Nay," replied More, "Your Grace may not think that the King, your master and mine, will be offended with me for serving _his_ Master, or thereby account his office dishonoured," and he resumed his interrupted hymn.

Jeffreys' predecessor, Lord Guilford, who, as Campbell tells us, "had as much law as he could contain," was another Chancellor of blameless morals. In an age when the possession of a few redeeming vices was considered the mark of a gentleman, the purity of his conduct caused him some natural unpopularity. Indeed, his friends strongly advised him to take a mistress, if he did not wish to lose all interest at Court, saying that people naturally looked suspiciously at a man who declined to follow the general practice and seemed to be continually reprehending them by his superior moral tone. Lord Guilford's enemies even sought to revenge themselves upon him by spreading reports calculated to make him look ridiculous, and once, when the Lord Keeper had gone to the city to see a rhinoceros which was on view there, circulated a story to the effect that he had insisted upon riding this animal down the street. Poor Lord Guilford was much annoyed; he was blessed with a most exiguous sense of humour, and could see nothing amusing in so preposterous a suggestion. "That his friends, intelligent persons, who must know him to be far from guilty of any childish levity, should believe it, was what _roiled_ him extremely,"[161] he declared.

[161] Roger North's "Life of Lord Guilford," vol. ii. p. 167. (The word _roiled_, so we are informed, was an import from the American plantations.)

The duties of the Lord Chancellor are manifold and of supreme importance. Lord Lyndhurst, who himself held the Seal three times, and is famous not only as an orator but also as the originator of the policy of what is known as the Two Power Standard,[162] once said that the Chancellor's work might be divided into three cla.s.ses: "first, the business that is worth the labour done; second, that which does itself; and third, that which is not done at all."[163]

[162] "If we wish to be in a state of security," he said, in 1859, "if we wish to maintain our great interests, if we wish to maintain our honour, it is necessary that we should have a power measured by that of any two possible adversaries."

[163] H. Crabb Robinson's "Diary," vol. iii. p. 453.

In his Court of Chancery the Lord Chancellor formerly exercised a vast jurisdiction. At one time all writs were issued from this Court, and he was not only considered the guardian of all "children, idiots, and lunatics," but, as Blackstone says, "had the general superintendance of all charitable uses in the Kingdom," and was the visitor of all hospitals of royal foundation.[164] His former duties in these respects have to some extent been delegated to other judges and officers, acting in his name; the issuing of writs, though also in his name, has been transferred to the Central Office, and the jurisdiction of the Court of Chancery removed to the Chancery Division of the High Court of Justice.

[164] "Commentaries," vol. iii. p. 47.

His judicial position, however, is probably greater than ever. He is head of the Law and of the Judges--a vast though still, perhaps, inadequate number--President of the High Court of Justice and of the Court of Appeal, and, above all, of the highest and final Court of the realm, the House of Lords. Here he sits continuously, with occasional excursions to preside over the Judicial Committee of the Privy Council to which come all appeals from India and the Colonies. As the only legal member of the Cabinet, he is virtually chief law officer of the Crown, and questions of domestic or international law are submitted for his advice by his colleagues, the heads of the other Departments of the Government. In his capacity of Keeper of the Great Seal he may never leave the Kingdom, and is _ex officio_ Speaker of the House of Lords, and must attend all its sittings. The Chancellor does not, however, enjoy rights similar to those of the Commons' Speaker; he is not addressed in debate; he does not call upon peers to speak, and has no authority to settle questions of order.

As the Woolsack is not considered to be within the limits of the House of Lords, the fact of a Chancellor being a Commoner does not prevent him from sitting there and discharging the duties of Speaker; but he may not take any other part in the proceedings unless he be himself a peer. Only in recent times has the Chancellor been necessarily made a peer, and there exists no statutory restriction incapacitating any man, unless he be a Roman Catholic, from holding the office of Lord Chancellor.[165]

[165] Sir Robert Harley, Chancellor in 1757, was not made a peer until 1764. In 1830, Brougham took his seat on the Woolsack as a Commoner, and at least one other Chancellor has since followed his example.

The limitation of his powers as Speaker of the Lords owes its origin to the fact that, unlike the Chairman of the Commons, the Chancellor is always a partisan appointed by a particular Government, and retires when that Government goes out of office. As such, he takes an active part in debate, and, though much respect would be paid to his advice on points of order, it need never be followed, and he has no power to decide questions of procedure or to control the conduct of his fellow peers.

The first Chancellor of an actively partisan character was Lord Thurlow--

"The rugged Thurlow who with sullen scowl, In surly mood, at friend or foe will growl"--

whose well-known asperity had earned for him the t.i.tle of "the Tiger."

It was said of him that in the Cabinet he "opposed everything, proposed nothing, and was ready to support anything." He was supposed to have derived his descent from Thurloe, Cromwell's secretary. "There are two Thurlows in my county," he remarked, when questioned upon the subject, "Thurloe the secretary and Thurlow the carrier. I am descended from the carrier."[166] His bad manners on the bench were proverbial, but not apparently incorrigible. Once at the commencement of the Long Vacation, when he was quitting the court without taking the usual leave of the Bar, a young barrister whispered to a companion, "He might at least have said 'D---- you!'" Thurlow overheard the remark, returned to his place, and politely made his bow.[167] Eldon said of Thurlow that he was a st.u.r.dy oak at Westminster, but a willow at St James's, where he long figured as the intimate and grateful confidant of George III.[168]

"Oft may the statesman in St Stephen's wave, Sink in St. James's to an abject slave,"

but Thurlow's att.i.tude towards his royal master does not appear to have been marked by extreme servility. Once, indeed, when the Chancellor had taken some Acts to receive the royal a.s.sent, he read one or two of them through to the King and then stopped. "It's all d----d nonsense trying to make you understand this," said Thurlow, with brutal frankness, "so you had better consent to them at once!"