Chapter VI · THE LORD CHANCELLOR, HIS POWERS AND DUTIES

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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.

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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.

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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!”

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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.