Lord North's method of dismissing Fox from his Cabinet in 1774 was no less peremptory. "Sir," wrote the Prime Minister, "His Majesty has thought proper to order a new commission of the Treasury to be made out, in which I do not perceive your name."145
It is seldom that a Prime Minister can give complete satisfaction in the formation of a Ministry, though the task is perhaps lightened by the fact that the possession of rare ability is not an absolute necessity for a Cabinet Minister.
In 1851 the Prince Consort sent Lord Derby the examination papers which Prince Alfred had been set when he passed as a naval cadet "As I looked over them," wrote the Prime Minister in his reply, "I couldn't but feel very grateful that no such examination was necessary to qualify Her Majesty's Ministers for their offices, as it would very seriously increase the difficulty of framing an administration!"
A curious list, as Macaulay suggested, could be made out of successful Lord Chancellors ignorant of the principles of equity, and of First Lords of the Admiralty ignorant of the principles of navigation. Sheridan even went so far as to say that a competent knowledge of the Rule of Three was a sufficient qualification for the Chancellorship of the Exchequer. Fox never understood what was meant by Consols. He only knew them to be things which rose and fell, and he was delighted when they fell, because, as he said, it annoyed Pitt so much. Lowe, who took a gloomy view of his office,146 always admitted that he was "a bad hand at figures," and his financial statements as Chancellor were both obscure and unintelligible. Lord Randolph Churchill, too, when he was at the Treasury, is always supposed to have remarked to a clerk who brought him a list of decimal figures, that he "never could understand what those d – d dots meant!"
Government departments are to a great extent run by the permanent officials. As Sir George Lewis, himself successively Chancellor of the Exchequer, Home Secretary, and Minister for War, justly observed, it is not the business of a Cabinet Minister to work his department. His business is to see that it is properly worked. If he does too much, he is probably doing harm. The permanent staff of the office can do what he chooses to do much better than he, or, if they cannot, they ought to be removed. Strength of purpose, quickness of decision, and a good supply of sterling common-sense are worth more to a Minister than mere technical knowledge.147
Besides the appointment of his colleagues, the Prime Minister also has in his patronage a number of posts in the Royal Household, which become vacant when an Administration changes. These are not so difficult to fill, and are usually distributed among members of the House of Lords, who are thus bound to their party by ties even stronger than those of sentiment.148
The actual Ministry consists of over forty persons, of whom perhaps a quarter form the Cabinet.149 The annual cost to the country in ministerial salaries is well under £200,000, and cannot therefore be considered excessive, considering the delicacy of the administrative machine, the efficiency with which it is run, and the amount of work that has to be accomplished.
The labours of Cabinet Ministers have increased enormously in modern times. This is perhaps one of the reasons why they no longer deem it necessary to attend debates as regularly as their predecessors. In Disraeli's time all the members of the Cabinet sat on the Treasury Bench throughout a debate, and listened attentively to every speech. It was considered obligatory upon the Leader of the House to be present perpetually in his place in Parliament. Neither Gladstone nor Disraeli would have thought of leaving the Chamber, except for a hurried dinner, until the House rose. The sittings have become so lengthy of late that it would be impossible for any Minister thus to give up his whole time to debate. Ministers are consequently provided with private rooms within the precincts of the House, whither they betake themselves as soon as question time is over, leaving one or two of their number to act as sentinels.
The cup of a young politician's happiness is filled to the brim on that glad day when he is offered a post in the Ministry. It does not actually overflow until he has been given a seat in the Cabinet itself. Should such success attend him, the summit of his ambition is within sight. In imagination he sees the mantle of Walpole descending upon his shoulders. Before his eyes stretches a vista of political splendour which only reaches a glorious conclusion when the vaults of Westminster Abbey open to receive his ashes. There is but one fly in the ointment. A member of the House of Commons who is appointed to ministerial office has perforce to submit himself once more to the judgment of the electors, and beg his constituents to return him again to Parliament. This rule is some two centuries old, and was designed to prevent the corruption of unworthy members who might otherwise be bought by the offer of lucrative Crown appointments.150 It is no longer of any practical value for this purpose, and so tiresome a practice, entailing as it does much hardship and expense upon a newly created Minister, could well be abolished. Old customs die hard, however, and nowhere do they take so "unconscionably long a time a-dying" as in Parliament.
The ratification by the sovereign of the Prime Minister's choice in the matter of colleagues is a brief but not unimposing ceremony. To each of the three Secretariats of State there belongs a seal which is the outward and visible sign of the authority attaching to the post. When a Government goes out of office and a fresh Ministry is appointed, the seals are delivered up in person to the sovereign by the outgoing Ministers. His Majesty then hands them to the members of the new Administration, who receive their badges of office in a suitably humble attitude, on their knees, and kiss the royal hand that confers these favours.
The seals of office have been the unconscious cause of more indifferent puns than any other parliamentary institution. 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.
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.
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 Chancellorship, proving the truth of Burke's well-known assertion 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 title from the cancelli or screens behind which he carried on his clerical duties.
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 Chancellorship was divided between the Abbots of Ely, Canterbury and Glastonbury, 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 Chancellorship, 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 à 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 establishing themselves firmly upon the Woolsack. Since that time no cleric, with the single exception of Bishop Williams, in 1621, has been entrusted with the Chancellorship 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 Coke 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 Constitution, 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 Keepership of the Great Seal a regular appointment, separate and distinct from the Lord Chancellorship.
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 fashion 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.
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 title of Lord Chancellor simultaneously.
In mediæval days the Chancellorship and the Lord Keepership 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 Keepership, 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 God," "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
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 Masterships 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
Many centuries elapsed before the standard of judicial morality in England attained its present high level, but even in the earliest days of the Chancellorship 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. "God's body!" once exclaimed the Duke of Norfolk, seeing More thus attired and singing lustily; "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.
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 classes: "first, the business that is worth the labour done; second, that which does itself; and third, that which is not done at all."163
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.
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
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 title 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 sturdy 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 attitude 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 assent, 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!" And if he adopted this tone to his King, it may be certain that his attitude towards his equals or inferiors was no less overbearing.
Thurlow's character has been cruelly portrayed in the Rolliad under the heading:
"How to Make a Chancellor."
"Take a man of great abilities, with a heart as black as his countenance. Let him possess a rough inflexibility, without the least tincture of generosity or affection, and be as manly as oaths and ill-manners can make him. He should be a man who should act politically with all parties – hating and deriding every one of the individuals who compose them."169
If the Speaker of the Lords had been expected to conduct himself in a fashion similar to that of the Speaker of the Commons, Thurlow's behaviour on the Woolsack would certainly have given rise to adverse criticism. He was a frank and bitter partisan, and when some opponent had spoken, would step forward on to the floor of the House and, as he himself described it, give his adversary "such a thump in the bread-basket" that he did not easily recover from this verbal onslaught.170 Thurlow's pet aversion was Lord Loughborough, his successor on the Woolsack. When Loughborough spoke effectively upon some subject opposed by Thurlow, who had not however taken the trouble to study it, the latter could be heard muttering fiercely to himself. "If I was not as lazy as a toad at the bottom of a well," he would say, "I could kick that fellow Loughborough heels over head, any day of the week." And he was probably right, for Lord Loughborough was a notoriously bad lawyer,171 whereas his rival's sagacity almost refuted Fox's celebrated saying that "Nobody could be as wise as Thurlow looked."
The amount of work accomplished by a Lord Chancellor depends very largely upon the man himself, as we may see by comparing the two most distinguished Chancellors of their day – Lord Eldon and Lord Brougham.
Eldon had worked his way laboriously from the very foot to the topmost rung of the legal ladder. It was his own early experiences that inspired him to say that nothing did a young lawyer so much good as to be half-starved. And in action as well as in word he always maintained that the only road to success at the Bar was "to live like a hermit, and work like a horse."
He was in many ways an original character. He always wore his Chancellor's wig in society, and was otherwise unconventional. One day, after reading much of "Paradise Lost," he was asked what he thought of Milton's "Satan." "A d – d fine fellow," he replied; "I hope he may win." In spite of this view, however, he was an extremely religious man, though he did not attend divine service regularly. Indeed, when some one referred to him as a "pillar of the church," he demurred, saying that he might justly be called a buttress but not a pillar of the church, since he was never to be found inside it. He is probably the most typical Tory of the old school that can be found in political history. His conservatism was of an almost incredibly standstill and reactionary character. As Walter Bagehot said of him in a famous passage, he believed in everything which it is impossible to believe in – "in the danger of Parliamentary Reform, the danger of Catholic Emancipation, the danger of altering the Court of Chancery, the danger of altering the Courts of Law, the danger of abolishing capital punishment for trivial thefts, the danger of making landowners pay their debts, the danger of making anything more, the danger of making anything less."172
Though on political questions Eldon could make up his mind quickly enough, on the bench the extreme deliberation with which he gave judicial decisions was the subject of endless complaints. He agreed with Lord Bacon that "whosoever is not wiser upon advice than upon the sudden, the same man is not wiser at fifty than he was at thirty."173 His perpetual hesitation in Court, the outcome of an intense desire to be scrupulously just, gave rise to attacks both in Parliament and the press.174
A Commission was eventually appointed, ostensibly to inquire into the means by which time and expense might be saved to suitors in Chancery – where, as Sydney Smith said, Lord Eldon "sat heavy on mankind" – but really to expose the dilatory methods of the Chancellor. Eldon came well out of the inquiry, however, and it was proved that in the twenty-four years during which he had held the Great Seal, but few of his decisions had been appealed against, and still fewer reversed.
If some fault could be found with Lord Eldon for being a slow if steady worker, no such complaint could be levelled at the head of Lord Brougham. The latter, indeed, erred on the side of extreme haste, and was as restless on the bench as Eldon was composed, and as ignorant and careless of his duties as his predecessor was learned and scrupulous. Brougham's cleverness, was, however, amazing. If he had known a little law, as Lord St. Leonards dryly observed, he would have known a little of everything. He has been called "the most misinformed man in Europe," and in early life, when he was one of the original founders of the Edinburgh Review, is said to have written a whole number himself, including articles upon lithotomy and Chinese music. His ability and brilliance were unsurpassed, and his oratory was superb. His famous speech (as her Attorney-General) in defence of Queen Caroline was one of the finest forensic efforts ever heard in the House of Lords.175 His many talents have been epitomised in a famous saying of Rogers: "This morning Solon, Lycurgus, Demosthenes, Archimedes, Sir Isaac Newton, Lord Chesterfield, and a great many more, went away in one post-chaise." Yet he was eminently unsuccessful as Chancellor, and his domineering fashion of treating his colleagues made him extremely unpopular. Brougham's loquacity was intolerable, and his conceit immense. "The Whigs are all cyphers," he once declared, "and I am the only unit in the Cabinet that gives a value to them." It must, however, be admitted that he was a great statesman if not a great Chancellor, and that to his unique intellectual talents we owe in great measure the emancipation of the negro slave and the passing of the Reform Bill.