THE LORD CHANCELLOR, HIS POWERS AND DUTIES
1
But it is not alone the difference in the demeanour of their Members
that accentuates the contrast between the two Chambers. In forms of
procedure also there is a wide divergence. On the Order Paper of
the Lords the day and the month are still given in Latin, as they
have been for centuries. In February 1866 the first House of Commons
led by Gladstone agreed to the substitution of English for Latin.
Although the Lord Chancellor presides at the deliberations of the
House of Lords (save in Committee on a Bill, when his place is taken
by the Lord Chairman of Committees), he possesses none of the duties
and powers which are vested in the Speaker of the House of Commons.
The Speaker must be a Member of the House of Commons returned as
the representative of a constituency. The Lord Chancellor need not
necessarily be even a peer. Lord Chancellor Brougham presided over the
House of Lords in November 1830 before the patent of his creation as a
peer had been issued. The Speaker is elected by the House of Commons.
The Lord Chancellor is appointed by the Government, and is, in fact,
a leading member of the Cabinet. In the House of Commons a Member
speaking addresses himself to “Mr. Speaker.” In the House of Lords
it is not the Lord Chancellor who is addressed, but the whole House.
“My Lords,” each peer begins. Another curious distinction between the
Speaker and the Lord Chancellor is that while the Speaker cannot take
part in debate--“he must not sway the House by argument,” as the old
order has it--the Lord Chancellor joins in every important debate
in the interest of the Government. When the Lord Chancellor rises to
speak he moves away several paces to the left of the Woolsack. There
is a special significance in that movement. It is sometimes accounted
for by the statement--which is true--that the Woolsack is technically
outside the Chamber. But the real explanation lies in the fact that the
Standing Orders of the House direct that if the Lord Chancellor speaks
on any question for himself, and not as the “mouth of the House,” he
is to go to his own place as a peer. Hence, he steps aside from the
Woolsack. On other occasions, when, for instance, he puts a motion to
the House for decision, he stands up right in front of the Woolsack.
The Speaker is the sole judge of all questions of order in the House
of Commons. The Lord Chancellor, or the Lord Chairman of Committees,
has no authority to rule a peer out of order for any word or act
whatever. In the House of Lords, if there be a conflict of opinion or
personalities, or any breach of order or decorum, the matter is decided
by the whole House, and not by the Lord Chancellor or the Lord Chairman
of Committees. When several Members rise simultaneously to take part
in debate, as happens frequently in the House of Commons, the Speaker
decides which shall speak first by calling him by name. But if two
or more peers rise together in the House of Lords, each insisting on
speaking, the Lord Chancellor has not the power of deciding who shall
first be heard. It is the voice of the House which determines the
question. The Lord Chancellor, powerless to interpose effectively, must
content himself with looking silently on at the scene, and, to judge
from the expression on his face, speculating in a spirit of curiosity
as to what would happen next. Of course, if it pleases him the more, he
may give vent to his feelings by joining in the hubbub, like any other
peer. The Standing Orders of the House puts the impotence of the Lord
Chancellor in language of almost crude violence. According to Order No.
20, even the Lord Chancellor himself--
Is not to adjourn the House, or to do anything else as the
mouth of the House, without the consent of the Lords first had,
except the ordinary things about Bills, which are, of course,
wherein the Lords may likewise overrule; as for preferring one
Bill before another, and such like, and in case of difference
among the Lords, it is to be put to the question.
Happily, so strong is the sense of order and demeanour in the Lords,
that when the House expresses its desire to hear one of the peers
contending for its ear, by calling out his name, the others at once
resume their seats. But there was once a notable Party wrangle over the
question which of two peers, who had risen simultaneously, one from
the Liberal benches and the other from the Tory benches, should speak
first. Neither peer would give way to the other. To bring the deadlock
to an end, Earl Granville, then Leader of the Liberal Party, moved that
the Liberal lord be heard. The House divided on the motion, and decided
by a large majority that the Tory peer should be the first to speak. In
the session of 1870 Lord Campbell proposed a new Standing Order giving
power to the Lord Chancellor or Lord Chairman of Committees to decide
the succession of Members who desired to speak in a debate; but he
ultimately withdrew it owing to the widespread feeling among the peers
that the ruling of all questions of order should remain vested in the
House as a whole. But with a view to the avoidance of such disputes, it
is now the custom, when a long debate is in prospect, for the Whips of
both sides to arrange beforehand the order in which peers who desire to
take part in it shall speak.
2
It may be asked, Why should not the Lord Chancellor be allowed to
exercise the authority which lies in the chairman of every meeting of
determining the order in which those desirous of joining in a debate
shall speak? All the peers are supposed to be equal, however they may
differ in degree. In no one of them can authority over his fellows
be vested. In fact--as the Irishman is said to have said--one man is
as good as another, and twenty times better. Therefore, when a point
of order arises, it must be decided by the whole House, and not by
the Lord Chancellor. The only right the Lord Chancellor possesses
is the right common to every peer, that of calling attention to an
irregularity. In a debate on the employment of Chinese coolies in the
Transvaal mines, on June 28, 1905, Lord Chancellor Halsbury rose to a
point of order. But he was careful to say that in doing so he was but
simply exercising his right as a Member of the House. “Of course,”
said the Marquis of Ripon, then Leader of the Liberal Opposition, “the
authority of the noble and learned earl on the Woolsack is great, but
I wish to point out that as a matter of order he has no more right
to call anybody to order than any other, even the youngest, peer in
this House.” “No, but I have the right to protest,” said the Lord
Chancellor. “I said I had no greater but no less a right than any other
Member of your lordships’ House.” “I do not deny,” said Lord Ripon,
“that the noble and learned earl has the same right.”
Should the proceedings in the Lords become very disorderly, the only
means provided for bringing the scene to an end is the reading by
the Clerk of two old Standing Orders dealing with asperity of speech
and personal quarrels. In Committee on the Ballot Bill of 1872,
the discussion, or rather the recrimination between noble lords on
different sides of the House, became so inflamed that a motion was
made to have these Standing Orders read. The Reading Clerk did read
them with most impressive emphasis, and, lo and behold! the demon of
unruliness was exorcised, and the debate was resumed in a cool and
amicable manner. Quaintly worded, indeed, are these Standing Orders for
soothing the ruffled tempers of the peers. The first, passed so long
ago as June 13, 1628, is as follows:
To prevent misunderstanding, and for avoiding of offensive
speeches, when matters are debating, either in the House or at
Committees, it is for honour sake thought fit and so ordered
that all personal, sharp or teasing speeches be forborn, and
whosoever answereth another man’s speech shall apply his
answer to the matter without wrong to the person: and as
nothing offensive is to be spoken, so nothing is to be ill
taken, if the party that speaks it shall presently make a fair
exposition, or clear denial of the words that might bear any
ill-construction; and if any offence be given in that kind, as
the House itself will be very sensible thereof, so it will
sharply censure the offender, and give the party offended a fit
reparation and a full satisfaction.
The second Standing Order, which was passed August 9, 1641, says:
For avoiding of all mistakes, unkindnesses, or other
differences which may grow to quarrels, tending to the breach
of peace, it is ordered that if any lord shall conceive himself
to have received any effront or injury from any other member of
the House, either in the Parliament House or at any Committee,
or in any of the rooms belonging to the Lords’ House of
Parliament, he shall appeal to the Lords in Parliament for his
reparation, which if he shall not do, but occasion or entertain
quarrels, declining the justice of the House, then the lord
that shall be found therein delinquent shall undergo the severe
censure of the Lords’ House of Parliament.
3
Yet what potentialities of contention and uproar in the House of Lords
lie in the hereditary principle--in the extraordinary privilege that
certain men, solely because they are the eldest sons of their fathers,
without any regard to their moral any more than to their mental
qualities, become, indefeasibly, Members of this renowned Legislative
Assembly. There is only one bar, be it remembered, to the right of
succession to a seat in the House of Lords. That is bankruptcy. It is
not so very long ago since English law regarded property as more sacred
even than human life. The English Constitution still disqualifies its
hereditary legislators for want of financial integrity, but not for
lack of character. A bankrupt cannot sit in the House of Lords, but a
blackguard may.
Conduct undignified need not be feared from the few aged and
high-minded peers of whom the House of Lords in session is usually
composed. Nothing can disturb the habitual self-possession of these
quiet and sedate gentlemen, nothing can surprise or annoy them, nothing
can discompose the fixed decorum of their looks and demeanor. However
wistfully they may look back upon their own stormy youth, they may
always be relied on, in the respectability and solid seriousness of
their old age, to treat the House with the reserve that is due to
its ancient dignity. But, then, there are the young and frivolous
bloods of the peerage, who are so noted for their physical virility
and their high spirits. Supposing they were to bring into the House
of Lords the levity and wilfulness and violence in which they have
been nurtured--the wild practical jokes and fisticuffs of the Public
School, the rowdy diversions of the University, the “ragging” of the
Army? How they could turn the solemn House topsy-turvy! Unhampered as
the play of their caprices and antics would be by rules of order, what
a disruptive and demoralizing element they might introduce into this
select and tranquil and most sedate circle of dignified legislators!
What a spectacle, if under the eager gaze of the crowded Reporters’
Gallery they first were to lock up “Black Rod” in his box, overpower
the Serjeant-at-Arms with a knock of his Mace, and then--in imitation
of the Irish tenants of old who used to compel the process-server to
swallow the latitats he came to serve them with--proceed by force to
feed the unhappy Lord Chancellor on the Woolsack with slips of the
pious maxims of the seventeenth-century Standing Orders!
What splendid newspaper copy! What public sensation! What notoriety
for the young scapegraces! They could not be haled before the police
magistrate. If they were brought to justice at all it could only be
through the splendid, stirring ordeal of an impeachment before their
peers. They could not be expelled from the House. Its doors could not
be even temporarily closed against them. Nor need they have to fear
being brought to account by constituencies justly inflamed by their
outrages on the sanctity and dignity of Parliament. In all seriousness,
a few young irresponsible peers, united in mischief, might easily turn
the House of Lords into an assembly more unruly even than the House
of Commons is at times--unless they, too, should fall, as is probable
enough, under the sobering influence of the solemn atmosphere of the
place, and, like their elders, be content to possess their souls in
peace. I once saw a young peer who was speaking called to order by an
elderly one, on the ground that his remarks were not quite relevant,
and, to my surprise, he made no attempt to go on with his speech, but
sat down at once, without any apparent sense of humiliation or even of
embarrassment. He was frozen out.
In the absence of regulations as to order and debate, peers of
eccentric habits occasionally cause a good deal of trouble, not
unmixed, happily, with amusement. I remember well the droll antics of
the second Lord Denman, who died suddenly in 1894, at the grand old age
of ninety. To the very last he attended the sittings. A tall, gaunt
figure, with a grey melancholy face, surmounted by a red skull-cap,
his hands covered with white gloves and leaning heavily on a stick, he
would roam about the Chamber, sitting where he listed. He had always a
pet topic. For many years it was the dire necessity of the provision by
the railway companies of carriages labelled “Men Only.” By Bill and by
motion, in season and out of season, he enlarged upon the danger to men
travelling alone on the railway of being black-mailed by unscrupulous
women. “Even in smoking carriages we are not safe from these false
frail ones,” he would exclaim. A common habit of his was to interpose
in some debate on foreign complications, or some equally serious
subject, to ask whether the Government had yet thought fit to compel
the railway companies to provide compartments for men only; and having
put the question, he would hobble out of the Chamber, well knowing, no
doubt from experience, that no answer would be given.
In later years Lord Denman took up, curiously enough, the subject of
the extension of the franchise to women. Session after session he
brought in a Women’s Suffrage Bill. His speeches in support of the
measure were invariably rambling and rather incoherent discourses on
all sorts of irrelevant topics. Once when he was appealed to by the
Leader of the House to keep to the point, he bridled up and exclaimed:
“I may not be your equal in debate, but I am the match of any one of
you in my shirt-sleeves.” Each of the noble lord’s Bills was brushed
aside by the customary parliamentary motion of rejection--that it be
read “this day six months.” It happened one session, when Parliament
continued its sittings for a longer period than usual, that the period
of interdiction expired before the prorogation; and the noble lord,
turning up on “this day six months,” claimed the fulfilment of the
motion that the Bill should then be read! But, like all his Bills
and motions, it was “resolved in the negative.” On another day, in a
different session, that he had the Bill down for second reading he
did not hear the Clerk call upon him to move the motion, owing to his
deafness; and his surprise was comical to witness on ascertaining that,
as all the business down for the day was transacted, the adjournment
of the House had been moved. Then the sight of the dispersing peers
turned his anger to fury, and, addressing the Lord Chancellor, as that
high personage was ceremoniously retiring from the Chamber, he called
out, “If you wait for a minute, I’ll assist your progress with the toe
of my boot!” The reporters were accustomed to dispose of his long and
rambling speeches in a line--“After a few words from Lord Denman,” etc.
This led him once to exclaim: “It’s my firm belief that no newspaper
reporter will be permitted to enter the Kingdom of Heaven.”
Another unconsciously humorous figure in the House of Lords, of a more
recent date, was Lord Stanley of Alderley. Unlike Lord Denman, he had
no special subject or grievance to ventilate. In fact, he took the
whole world for his province. Great, indeed, was the variety of the
topics upon which he spoke in one and the same speech. He was just
as irrelevant as Lord Denman and more deaf. He would place on the
notice-paper a question calling attention to the state of affairs in
Uganda. For a time--but only for a very brief time--his speech would
relate to that particular matter. Then suddenly he would be heard
discussing the heavy burden of the rates, the difficulty of access
to the Houses of Parliament owing to the congestion of traffic, the
advantage of the rotation of crops in agriculture, the danger to the
Nation of the fall in the birth-rate, and the evil effects of Ritualism
in the Church of England. It was not easy for the Reporters’ Gallery
to follow him, owing to his indistinct utterance, but always when he
finished his speech he would throw the manuscript on the desk of the
official shorthand writer, who has a seat on the floor of the House,
and it would be printed fully in _Hansard_.
However rambling Lord Stanley of Alderley might be, there was no power
in the House to stop him. He missed his train on a day that a Bill
to allow the deceased wife’s sister to marry her brother-in-law was
down for consideration; but as he had written out his speech on the
wrongs of that lady, he was determined that it should not be wasted.
Accordingly, at the next sitting, when the House was discussing the
opening of museums on Sunday, he joined in the debate and enlarged at
great length on his sympathy with the sister of the deceased wife. So
deaf was the noble lord that the reply on behalf of the Government to
any of his questions was quite lost on him. He might be seen gazing
fixedly at the Minister, with a pitiful look of helplessness on his
face. One day a happy thought struck him. He got one of the Clerks at
the Table to write out for him a summary of the answer of the Minister
as it was being delivered. This custom he followed till the House of
Lords knew him no more; and as he leaned over the shoulder of the
Clerk, reading the transcription of the Ministers remarks, he could be
heard muttering to himself: “Does he really say that? How ridiculous!
How ridiculous!”
4
The division which follows a debate in the House of Lords brings out
another distinction between the Lord Chancellor and the Speaker. The
Speaker is debarred from voting in a division. The vote of the Lord
Chancellor is taken, though he does not pass through the division
lobby like the other peers. The Lord Chancellor, however, has no
casting vote. If the numbers in a division should be equal, the
“Not-Contents”--or those who support the negative--prevail. In other
words, the position remains unaltered. A matter can only be reversed
or changed by a majority. In the House of Commons the issue, in a like
contingency, would be decided by the casting vote of the Speaker.
The only function of a chairman which the Lord Chancellor is empowered
to perform is that of “putting the question.” This is done in the
same form as in the House of Commons, save that “content” is used for
“aye” and “not-content” for “no.” “As many as are of that opinion say
‘content,’” says the Lord Chancellor, “the contrary ‘not-content.’”
A division is then challenged on the motion. “The Contents will go
to the right of the Throne,” continues the Lord Chancellor, “and the
Not-Contents to the left of the Bar.” Two tellers are appointed on each
side, carrying white wands, and the peers pass through the division
lobbies, just outside the Chamber, to have their votes counted and
names recorded. The tellers on each side are included in the numbers,
differing from the practice in the House of Commons, where the tellers
are not counted. When the tellers return to the Chamber a slip of
paper containing the numbers is given to the Lord Chancellor, who thus
announces them: “Contents, 89; Not-Contents, 16.” “The Contents have
it,” adds the Lord Chancellor, and so the motion is carried.
But what, after all, is the main distinction between the two Houses of
Parliament? It was the custom at one time to describe them officially
as the “Upper” Chamber and the “Lower” Chamber. The terms are still in
use, though more for convenience sake than in the sense of implying
difference in rank and position. Bills which originate in the Commons
are “sent up” to the Lords. The Lords, however, are careful to endorse
these Bills with the simple words, “Brought from the Commons.” On the
other hand, the Commons, when issuing a new writ for a constituency
vacated by the succession of its representative to a peerage, describes
the outgoing member as “called up to the House of Lords.” Thomas
Creevey relates that, discussing with Wellington the relative positions
of the two Houses, the great soldier declared that able men were lost
by being in the House of Lords. “Nobody cares a damn for the House of
Lords,” said he. “The House of Commons is everything in England and
the House of Lords is nothing.” That was in 1818. Much has occurred
since then still further to exalt the House of Commons. That House has
absorbed in itself all the main powers of the State. Social position
and wealth are as strongly entrenched as ever in the House of Lords,
and are as stoutly defended as ever by the Conservative instinct in
politics by which the majority of its Members are moved. That House,
all the same, fills but a secondary position in the Constitution. Its
suspensory veto, by which it could delay the passing of great changes
until they had been directly sanctioned by the country, was abolished
by the Parliament Act of 1911, providing for the carrying of Bills that
have passed the Commons in two sessions, however the Lords might object.
Structurally, the two Chambers are in a position of equality. Passing
from one to the other, you have neither to go upstairs nor downstairs.
Long corridors separate them, but should their doors be open the
Speaker and the Lord Chancellor may see one another face to face across
the level distance.
There can be no question, however, that æsthetically the House of Lords
is on a vastly higher plane than the House of Commons. From that point
of view it may be said the Commons appeal to the material cravings of
human nature, and the peers to its emotional and more poetic side.
The House of Commons is pushful, eager, striving, noisy. The House of
Lords is calm and dignified, cultured, polished. The qualities that
find the greatest scope in the House of Commons--energy, resolution,
enterprise--contribute in a higher degree, perhaps, to social and
political advancement, though it may be doubted whether in their
operation they tend to distinction and refinement. By passing the
Parliament Act, 1911, the Radical Government really gave to the Lords a
long renewal of the lease of their House, subject to certain conditions
that they must not unduly interfere in the political business of their
neighbours in the adjoining House. But it appears to me that in these
democratic and drab times the best justification of the existence of
the Lords would be provided by spectacles of patrician pride and superb
elegance, and oratory of a pomp worthy of their beautiful and stately
Chamber.