The Mother of Parliaments

by Harry Graham

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.