Lord Chancellors – learned in the law?

Our Director, Dr Paul Seaward, reflects on the Lord Chancellor’s legal experience…

Michael Gove was sworn in as Lord Chancellor on Tuesday, resplendent in the gold-trimmed gown of the office, but without the full-bottomed legal wig, apparently to mark the fact that he is not a qualified lawyer. It has been said that Gove is the second person to hold the office who is not a barrister, following Chris Grayling, appointed in 2012.

Undoubtedly he is the second person since the Constitutional Reform Act 2005 made it unnecessary for the Lord Chancellor to be a lawyer, and separated the position of Lord Chancellor from the role of head of the judiciary. It’s wrong to say, however, that Mr Gove is the second person ever to be lord chancellor without being learned in the law. The earl of Shaftesbury, appointed Lord Chancellor on 17 November 1672, had also never gone on from the what at the time was a customary brief attendance at one of the Inns of Court – the training ground for lawyers but also a sort of finishing school for the English gentry at the time – to qualifying as a barrister. Which is not to say that he did not know a lot about the law: he had taken a leading role in the Law Commission in the 1650s, an attempt to reform many of the antiquated aspects of the law during the period after the abolition of the monarchy by the Rump Parliament. He spoke frequently in Parliament on quite abstruse legal matters. But naturally his fellow lawyers regarded him with intense (and to some extent justified) suspicion. Shaftesbury aroused a lot of distrust among many of his contemporaries, but his reforming instincts were especially deeply distrusted. One lawyer, Roger North, was incensed by his attitude to the procedures of Chancery and the privileges of the House of Commons:

after he was possessed of the great seal, he was, in appearance, the gloriousest man alive: and no man’s discourse, in his place, ever flew so high as his did, not only against the House of Commons, where, perhaps, he expected a party to sustain him; but against the tribe of the court of chancery, officers and counsel, and their methods of ordering the business of the court. As for the Commons, he did not scruple to declare openly, that he did not understand by what reason or right men should sit and vote themselves privileges. And for the chancery, he would teach the bar that a man of sense was above all their forms. He laboured hard and stuck at nothing to get men of his confidence into the House of Commons, and so, with all the gaiety de coeur imaginable, and a world of pleasant wit in his conversation, as he had indeed a very great share, and shewed it upon all occasions, he composed himself to perform the duties of his place.

He adopted an unusually high-profile approach to the office, attempting to revive an old practice of riding to Westminster Hall on the first day of the new term (though trouble with his horse made this less impressive than intended), and ensuring that his speeches on the swearing-in of two lord treasurers and one of the barons of the exchequer were printed. His speech on Baron Thurland’s taking his oath emphasized the burdens that small claims pursued in the court by the king’s officers imposed on ‘the industrious part of the nation’.

In part, opposition to Shaftesbury was simply the natural reaction of a profession that had missed out on a job and was worried about the failure of an amateur to respect their time-honoured, and lucrative, ways of doing things. But it was also doubts about the new chancellor’s executive instincts that caused unease It was widely rumoured that his predecessor had been put out because of his objections to a series of commands which he thought to be of dubious legality: to seal a commission for martial law relating to the troops assembled for an assault on Holland, to seal the Declaration of Indulgence, which lifted statutory restrictions on worship outside the Church of England, or to agree to an injunction to protect some of the bankers affected by the government’s decision to default on their loans in 1672 from proceedings for debt. Shaftesbury managed to overcome these scruples. Mired quickly in other controversies, Shaftesbury did not last long: he was dismissed, rather cordially, by Charles II in 1674, and went on to become one of the most prominent and most reviled leaders of the Whigs during the ‘Exclusion Crisis’ of 1678-81.

PS