Into this discussion we need not travel. What concerns us here is Mr. Gladstone's own share in the transaction. The plain story of what proved a complex affair, Mr. Gladstone recounted to the Speaker on August 16, in language that shows how direct and concise he could be when handling practical business:—
I had already sent you a preliminary intimation on the subject of my seat for Greenwich, before I received your letter of the 14th. I will now give you a more complete account of what has taken place. Knowing only that the law had been altered with the view of enabling the ministers to change offices without re-election, and that the combination of my two offices was a proper and common one, we had made no inquiry into the point of law, nor imagined there was any at the time when, deferring to the wish of others, I reluctantly consented to become C. of E. On Saturday last (Aug. 9) when I was at Osborne, the question was opened to me. I must qualify what I have stated by saying that on Friday afternoon some one had started the question fully into view; and it had been, on a summary survey, put aside. On Monday I saw Mr. Lambert, who I found had looked into it; we talked of it fully; and he undertook to get the materials of a case together. The Act throws the initiative upon me; but as the matter seemed open to discussion, I felt that I must obtain the best assistance, viz., that of the law officers. I advisedly abstained from troubling or consulting Sir E. May, because you might have [pg 468] a subsequent and separate part to take, and might wish to refer to him. Also the blundering in the newspapers showed that the question abounded in nice matter, and would be all the better understood from a careful examination of precedents. The law officers were out of town; but the solicitor-general [Jessel] was to come up in the later part of the week. It was not possible in so limited a time to get a case into perfect order; still I thought that, as the adverse argument lay on the surface, I had better have him consulted. I have had no direct communication with him. But Mr. Lambert with his usual energy put together the principal materials, and I jotted down all that occurred to me. Yesterday Mr. Lambert and my private secretary, Mr. Gurdon, who, as well as the solicitor to the treasury, had given attention to the subject, brought the matter fully before the solicitor-general. He has found himself able to write a full opinion on the questions submitted to him: 1. My office as C. of E. is an office of profit. 2. My commissionership of the treasury under the new patent in preparation is an “other office” under the meaning of the late Act. 3. I cannot be advised to certify to you any avoidance of the seat. Had the opinion of Sir G. Jessel been adverse, I should at once have ceased to urge the argument on the Act, strong as it appears to me to be; but in point of form I should have done what I now propose to do, viz., to have the case made as complete as possible, and to obtain the joint opinion of the law officers. Perhaps that of the chancellor should be added. Here ends my narrative, which is given only for your information, and to show that I have not been negligent in this matter, the Act requiring me to proceed “forthwith.”
Speaker Brand replied (Aug. 18) that, while speaking with reserve on the main point at issue, he had no hesitation in saying that he thought Mr. Gladstone was taking the proper course in securing the best legal advice in the matter. And he did not know what more could be done under present circumstances.
The Greenwich Seat
The question put to Jessel was “Whether Mr. Gladstone, having accepted the office of chancellor of the exchequer is not, under the circumstances stated, protected by the provision contained in section 52 of the Representation of the [pg 469] People Act, 1867, from vacating his seat?” Jessel answered “I am of opinion that he is so protected.” “I may be wrong,” this strong lawyer once said, “and sometimes am; but I have never any doubts.” His reasons on this occasion were as trenchant as his conclusion. Next came Coleridge, the attorney-general. He wrote to Mr. Gladstone on Sept. 1, 1873:—
I have now gone carefully through the papers as to your seat, and looked at the precedents, and though I admit that the case is a curious one, and the words of the statute not happily chosen, yet I have come clearly and without doubt to the same conclusion as Jessel, and I shall be quite prepared if need be to argue the case in that sense in parliament. Still it may be very proper, as you yourself suggest, that you should have a written and formal opinion of the law officers and Bowen upon it.[296]
Selborne volunteered the opposite view (Aug. 21), and did not see how it could be contended that Mr. Gladstone, being still a commissioner of the treasury under the then existing commission, took the office of the chancellor (with increase of pay) in lieu of, and in immediate succession to, the other office which he still continued to hold. A day or two later, Selborne, however, sent to Mr. Gladstone a letter addressed to himself by Baron Bramwell. In this letter that most capable judge and strong-headed man, said: “As a different opinion is I know entertained, I can't help saying that I think it clear Mr. Gladstone has not vacated his seat. His case is within neither the spirit nor the letter of the statute.” He then puts his view in the plain English of which he was a master. The lord advocate (now Lord Young) went with the chancellor and against the English law officers. Lowe at first thought that the seat was not vacated, and then he thought that it was. “Sir Erskine May,” says Mr. Gladstone (Feb. 2, 1874), “has given a strong opinion that my seat is full.” Well might the minister say that he thought “the trial of this case would fairly take as long as Tichborne.” On September 21, the chancellor, [pg 470] while still holding to his own opinion, wrote to Mr. Gladstone:—
You have followed the right course (especially in a question which directly concerns the House of Commons) in obtaining the opinion of the law officers of the crown.... But having taken this proper course, and being disposed yourself to agree to the conclusions of your official advisers, you are clearly free from all personal fault, if you decide to act upon those conclusions and leave the House, when it meets, to deal with them in way either of assent or dissent, as it may think fit.
Coleridge and Jessel went on to the bench, and Sir Henry James and Sir William Harcourt were brought up from below the gangway to be attorney and solicitor. In November the new law officers were requested to try their hands. Taking the brilliant and subtle Charles Bowen into company, they considered the case, but did not venture (Dec. 1) beyond the singularly shy proposition that strong arguments might be used both in favour of and against the view that the seat was vacated.
Meanwhile the Times had raised the question immediately (Aug. 11), though not in adverse language. The unslumbering instinct of party had quickly got upon a scent, and two keen-nosed sleuth hounds of the opposition four or five weeks after Mr. Gladstone had taken the seals of the exchequer, sent to the Speaker a certificate in the usual form (Sept. 17) stating the vacancy at Greenwich, and requesting him to issue a writ for a new election. The Speaker reminded them in reply, that the law governing the issue of writs during the recess in cases of acceptance of office, required notification to him from the member accepting; and he had received no such notification.[297] Everybody knew that in case of an election, Mr. Gladstone's seat was not safe, though when the time came he was in fact elected. The final state and the outlook could not be better described than in a letter from Lord Halifax to Mr. Gladstone (Dec. 9):—