BROOKLINE HISTORICAL SOCIETY
ANNUAL MEETING, JANUARY 29, 1915
PUBLISHED BY THE SOCIETY
At a meeting of the Brookline Historical Society, held in the Edward Devotion House, March 27, 1914, Hon. Henry K. Braley, Justice of the Massachusetts Supreme Court, read the following paper:-
The fall of the Roman empire eclipsed but did not destroy the splendor of the Roman law as a system of jurisprudence. It has formed the model for the judicial administration of the various states or kingdoms which succeeded the collapse, and to-day, with the exception of Hungary, the civil law holds sway in all Continental Europe. Napoleon's great prophecy at St. Helena, "I shall go down in history with the Code in my hand," not only has been fulfilled, but illustrated the immanent force of that great system perfected by the Roman jurisconsults under Tribonian until it became the pride of Justinian. But as a body of adjective jurisprudence, to be administered and followed, the civil law never crossed the Straits of Dover or the Tweed. Not even the Norman Conquest availed to check the growth and development of the common law, that great inheritance of those who speak the English tongue. Borrowing undoubtedly as it did from the civil law and the canon or ecclesiastical law whenever a term or principle could be fittingly assimilated, yet this system grew and flourished until it became substantially the medium of freedom of thought, freedom of conscience and freedom of personal action, adapted to the genius of a people who believed in and strove for the ideal, although at first they may have seen dimly that all governments in the end derive their just powers from the consent of the governed. "Edward the Confessor, King of the West Saxons 1042-1066, was the first English sovereign to adopt the Norman practice of sealing instead of signing official documents," says Stubbs, the great authority on early English constitutional history, and from the Norman Conquest in 1066 the succession of Chancellors has been continuous.
What does the title of chancellor signify? In a Roman court of justice ushers sat at the cancelli or latticed screen which separated the judge and counsel from the audience. It was, in fact, the bar of the court; and because of the place where they sat counsel were known as cancellarii or Chancellors. To perform his duties properly the Chancellor, of course, must be able to read and to write. And book learning for centuries was almost wholly confined to the clergy. In the ranking of the royal household the Chancellor was a royal chaplain or spiritual adviser to the King, and keeper of the King's conscience. He also acted as the King's secretary and was entrusted with the custody of the royal seal. To quote Stubbs, "He was, in fact, the Secretary of State for all departments." At first, the chief justiciar or chief minister of the Norman Kings, who in the King's absence in foreign parts, which often occurred in early English history, could administer the King's justice, outranked the Chancellor. But by reason of his intimate association with royalty and the large character of the functions of his office, the Chancellor gradually became employed in judicial work until, great alike, whether justice was to be administered or the King's revenue was to be collected and disbursed, his office overshadowed all others. He soon assumed the position formerly held by the chief justiciar and became second only to the King in dignity, power and influence. I need do no more than refer to Becket and Wolsey as the greatest of the ecclesiastical Chancellors.
Such, in brief, is the origin of this great office now held by Lord Chancellor Haldane, so recently a guest of the American Bar Association, where>he delivered a profound address upon international goodwill, forbearance and kindliness which, as he pointed out, must have its origin in individual good will and the spirit of self-sacrifice for the public weal. It was not, however, until 1280, under Edward I, known as the English Justinian, that the King's justices and the Chancellor were directed to deal with petitions addressed to the King which had so greatly increased that to despatch the King's justice required the assistance of all the judges as well as the King's greatest minister. The mandate, however, if issued, must bear the impress of the Great Seal, clavis regni, and the King's ordinance directed that the use thereof should rest solely in the discretion of the Chancellor. By the time of Edward III, 1327-1377, the Chancellor ceased to accompany the King's justices on circuit and petitions for grace or favor were addressed and went directly to him instead of the King in person. It is here that we have the beginning of modern Chancery or Equity, which has developed into a distinct branch of jurisprudence, governed by rules of its own and which supplements the deficiencies of the common law by modifying what has been called its arbitrary harshness. Essentially it is a court of conscience, where the strict law, if unconscionable, must yield. Said an early English writer, "Conscience never resisteth the law nor addeth thereto, but only when the law is directly in itself against the law of God or the law of nations." In the great dispute in the reign of James I between Lord Chancellor Ellesmere and Lord Coke, whether equity could review a judgment of the King's Bench, the King finally had to act as the arbitrator, and very concisely but truly said, "Where the rigor of the law in many cases will undo a subject, then the Chancery tempers the law with equity and so mixes mercy with justice as it preserves a man from destruction.'' The rise of equity has been said to be in harmony with the development of all progressive jurisprudence. But the phenomenon is that instead of being incorporated with the common law and forming a part of its procedure, as in the civil law, a distinct and independent tribunal was gradually evolved and created. I have never looked upon the separation as unwise or deplorable. The experience of the English and American people would seem to show that the dislike of the English lawyers of the civil law which does not recognize the doctrine of precedent, but requires that each case shall be decided without regard to prior decisions, although the principle involved may be exactly the same, was well founded. I am aware of the weight of labor and possible handicap which the doctrine of precedent has put upon the courts, as well as resultant restrictions upon the social order. It is said that the number of reported cases is fast approaching two millions, while at present no method of diminishing this enormous mass of case law has been conceived, nor has a limit been found to the report of opinions rendered. There is, also, ground for argument that the report of decided cases does not seem to have led to the settlement of future disputes or to render the law absolutely certain. We all know that the same point actually has been adjudicated many times even in the same jurisdiction, yet litigants are not thereby deterred from trying the question over again, and it may be truthfully said that modern opinions do not always construe the law in the same way as the old opinions did. Nevertheless, the stable power of precedent has given great certainty to our law in the protection of title to and in the conservation of property and the preservation of individual rights. It has largely led in so far as human laws can lead, to the conception that in the administration of justice we should have a government of laws and not merely of men. There is, moreover, in the civil law, no division of questions of law and fact in civil cases. Nor is there any provision for juries. The law is taken completely out of the hands of the people and given over to a class of professional jurists. A system which may be well adapted where the framework of government is based upon imperialism, namely, that the people are made for the government, is not, it seems to me, adapted to the conception that government is made for the people. A man is free when he has to obey no one save the law itself and liberty exists under government only where there is a standing law to live by. It follows, of course, that under this last view government necessarily is of slow growth. It can move no faster as an instrumentality than the people themselves move. Nor can it become stable unless the people hold fast that which they have gained. The administration of law by the judges at the state trials under the Stuarts; and the Assizes, after the fall of Monmouth, enable us to realize fully the fearful injustice which can be wrought where the judge or a body of jurists or jurisconsults merely executes the vengeance or arbitrary will of the sovereign who claims to administer justice as of divine right regardless of statutes of Parliament or the doctrine of stare decisis. The clerical chancellors ceased when Heneage Finch, the Solicitor General of Charles II, and author of the Statute of Frauds, received the Great Seal and as Lord Chancellor Nottingham educed order and system from the mass of decisions, which for centuries had accumulated in the Chancery. From his day where at common law no forms of action were known and no law existed whereby rights could be enforced, of which trusts are the most conspicuous example, where the rights of married women, minors and lunatics were involved, and where the common law could not give adequate relief, as in cases of fraud, accident or mistake and for the specific performance of contracts - the Court of Chancery has provided a full remedy and secured the promotion and enforcement of justice. No matter how gross the fraud by which it had been obtained, a judgment could not be set aside at common law. It was only after the long wrangle to which I have referred, between Coke and Ellesmere, that it was finally decided equity could give relief.
Nottingham's successor, Philip Yorke, Lord Chancellor Hardwick, ranks with the very greatest of English judges. He it was who, taking up the work where it was left by his predecessor, established modern equity as a systematic science. Precedents were followed and a chancery bar, distinct from the common-law bar, came into existence and has since held as potent sway in the Equity Courts as the Sergeants-at-Law ever exercised in the Courts of Common Pleas and the King's Bench. It was the boast of Augustus that he found Rome of brick and left it of marble. So Hardwick well might have said, as he looked back upon his labors, that the noble edifice of equity jurisprudence was due to his formative genius. There is not to-day a court in the United States, whether federal or state, that does not administer equity fundamentally according to the great principles established by the English Chancery. The monumental treatises of Story and of Pomeroy rest upon the decisions of the great chancellors. By the Judicature Acts, 1875 to 1899, the Court of Chancery, the Court of King's Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes were consolidated in one Supreme Court of Judicature, consisting of two divisions, namely, the High Court, and the Court of Appeal.
Lord Chancellor Westbury's gibe, that in the English judicial system one tribunal was set up to do injustice and another to stop it, had a half pertinency. But while law and equity have not even now been fused, a uniform system of pleading and procedure has been established and provision made for the enforcement of the same rule of substantive law by all the courts, where before equity and the common law in some cases recognized and applied different rules.
In the broadening of English government, which has been a levelling up and not a levelling down, Chancellor succeeded Chancellor as Whig or Tory cabinets came into power, until the advent of Sir John Scott, Lord Eldon, in 1802. For nearly twenty years he graced the woolsack as a consummate equity judge. The powers and emoluments of the office had now become stable. What are they? The Chancellor acts as speaker of the House of Lords and as the supreme head of the English judiciary, and receives a salary of £10,000 a year, with a retiring pension of £5,000. In Eldon's day the salary was £19,000, but his successor received only £14,000, because Eldon voluntarily relinquished £5,000 as the salary of the Vice Chancellor, an office created to relieve the areas of work in the Chancery. The Chancellor also sits as a judge in the Upper House or House of Lords, and in the Chancery Division of the High Court of Justice, and in the Privy Council, which is the Court of Appeal of all the British possessions; a jurisdiction world-wide and embracing every conceivable legal question which can arise from the multifarious affairs of mankind. He advises the Crown as to all appointments of the judges of the Superior Courts, except that the Lord Chief Justice of England formerly Lord Chief Justice of the King's Bench, is always selected by the Prime Minister. Because in bygone days, the office was held by an ecclesiastic, he controls a large ecclesiastical patronage under the name of "Crown Livings," and as Chancellor, he has supervision of all public charities, while infants, idiots and lunatics are the wards of his Court, where their property and personal rights are upheld and safeguarded. Not the least among his functions is the custodianship of the Great Seal of England, the specific emblem of sovereignty. Its very round and top. The sacrosanct effect of the King's Seal is directly affirmed in the "Dilogue of the Exchequer," a work of the year 1176, where it is said that the acts and records of the Exchequer derived their conclusive effect from the image of the King stamped upon the Seal used by the court. Our ecclesiastical friends would tell us also that in the Book of Esther, Ch. VIII, v. 8, "The writing which is written in the King's name and sealed with the King's ring shall no man reverse." Although known to the Saxons, seals did not come into regular use in England until the Norman Conquest. The Great Seal is now attached only to the most important processes and state papers, such as the writs summoning Parliament, treaties, and to documents where the royal prerogative is exercised. Whenever a new reign comes in, or there is a change of Royal Arms or style, then an order is made by the sovereign and council for a new Great Seal. The old one is publicly broken and the fragments become the fee of the Lord Chancellor. The ceremony of breaking or "demasking" the old Great Seal is one of much solemnity. The King or Queen gives it a blow with a hammer, after which it is supposed to be broken and has lost all its virtue. When William IV ascended the throne, Lord Lyndhurst was Lord Chancellor and a new Great Seal was ordered; but when it was finished there had been a change of parties and Lord Brougham had become Chancellor. Each of the Chancellors claimed the old seal. The King, with the wisdom of Solomon, declared that the Great Seal should be divided between the two, and as it consisted of two parts, one representing the sovereign on the throne and the other on horseback, he further decided that Lyndhurst and Brougham should determine by lot the part each should receive. This having been done, the parts were set on splendid silver salvers, with appropriate devices and ornaments, and presented to the respective claimants. If the Great Seal becomes worn out, a new Seal must be ordered, and during the reign of Queen Victoria at least four were struck. The cost varies between £400 and £500. We all recall how James II, in his desperation, supposed he had prevented the overturning of the House of Stuart by casting the Great Seal into the Thames just before his flight into France; from whence it was fished and used for a time in the reign of William and Mary. It is an unwritten law that the Great Seal shall never be out of the Chancellor's possession until retirement or resignation; and when his party passes from power he delivers in person the seal to the reigning sovereign. Nor can it be taken beyond seas, nor can the chancellor himself travel in foreign countries without the Royal permission. When Wolsey fell, and the Lords of the Privy Council were girding at him, Shakspere makes Suffolk say,
"Then that, without the knowledge of King
Or council, when you went
Ambassador to the Emperor, you
Make bold to carry into Flanders the Great Seal."
It would indeed be incomprehensible if English readiness for the meeting of political exegencies in some practical way, could not devise a method to overcome this obstacle; and during Lord Chancellor Haldane's absence, following ancient precedent, the Great Seal was put into commission by the appointment of Lord Commissioners, to whom its custody was transferred. We should deem it anomalous if this great judicial and ministerial office, comparable only with the Chief Justiceship of the United States, the very height of English legal ambition, had not been filled by lawyers of commanding intellectual and personal power. Francis Bacon, in intellect the greatest, was of them, but we bow our heads in sorrow at his tarnished fame as a judge.
No more interesting biographies can be found than Campbell's "Lives of the Chancellors," and Atlay's "Victorian Chancellors." John Singleton Copley, born in Boston, was Lord Chancellor Lyndhurst, great in law and great in debate; Henry Brougham, his contemporary, Queen Caroline's Attorney General and the champion of law reform; Erskine, unsurpassed advocate of the English bar, Lord Campbell himself, and their labors, for and against law reform Catholic emancipation and other great measures, are familiar to all readers of English history. In the fierce conflicts between Whig and Tory it was at times vitally important that a Whig ministry should have in the House of Lords, usually preponderately Tory, a Chancellor of great debating power. Of such were Brougham and Campbell. It is said that Charles Russell, made by Gladstone Lord Chief Justice and an unsurpassed debater, would have been created Lord Chancellor if it had not been that the Catholic Emancipation Act of 1829 prohibited a Catholic from holding that office, while Lord Chancellor Herschell, although of pure Jewish lineage running back to the captivity of Babylon, came of a father who had become a convert to Christianity.
But it is not among those who in the House of Commons, as the King's Attorney or Solicitor General, have so distinguished themselves as members of the Ministerial Bench as to lead to the Chancellorship and a peerage, for every Lord Chancellor must be a peer-that the functions of the judicial side of the office in the largest and best sense have been most effectively discharged and advanced. Equity jurisprudence owes a debt to the judicial labors of Eldon, St. Leonards, Cranworth, Chelmsford, Cottenham, Hatherley and Selborne which it can never repay. Cairns, and Herschell and Halsbury, all of them Tories or Conservatives, were not only first-rate lawyers but strong members of the party in power which they assisted very materially in debate. Their work as Chancellors, when sitting in Equity, is well done. It is noticeable that with the induction of Lord Haldane, a type of mind apparently moulded by different educational influences than that of his predecessors has assumed sway. It may be presumed that he received the rudiments, at least, of the ordinary classical training; but his intellectual bent was satisfied only with metaphysical or philosophical studies, which he pursued with great success at the University of Edinburgh and afterwards at Gottingen. It remains to be seen, if his tenure of office is sufficiently long, what effect his judicial work will have in the furtherance of modern equity, which in common with all jurisprudence now advances rapidly, in order to adapt a system of law containing some archaic features to the ever-increasing demands of a growing society, which we trust is soundly progressive, but if not progressive constantly moves; oftentimes impelled by sheer discontent or apparent expediency and tends to become, unless restrained within well-defined channels, very unstable. To act first and to think afterwards is as common to communities as to individuals.
To bring out perhaps a little more fully and pointedly the type of English Chancellor, moving along the old, solid, conservative lines, I turn for a few minutes to the career of Richard Bethell, Lord Chancellor Westbury.*
The son of Dr. Bethell, he was reared in poverty and it was only by winning a scholarship for his proficiency in Greek and by tutoring that he was able to graduate from Wadhams, at Oxford, and get his B. A. Degree in his eighteenth year. Below the line in mathematics, he was an exceptional classical scholar. He could never quite disguise his contempt for those who had missed a classical training. "I owe all my success in life," he once told a Balliol breakfast party, with characteristic exaggeration, "to Aristotle's rhetoric." Born in 1800 he was called to the bar in his twenty-third year; acute and logical, the subtleties of the law of real property and the niceties of conveyancing presented no difficulties, and his supreme self-confidence was alike the source of his strength and of his weakness. He attached himself to the Equity bar, "that small and select circle, with whom," says Nash, his biographer, "he did not appear to desire any social intercourse or to consider whether they were willing to bear his rather spinous humor. Stately and ornate in style, he appeared to be incapable, even when taken by surprise or provoked to anger, of inelegant phrase." One hundred guineas was the first year's income, but now came a retainer, which put him on his feet. Brasenose College was threatened with a great loss of its revenues through an information filed in Chancery. Dr. Gilbert, the head of the College, at once bethought him of Bethell, with whom, says Atlay, he had been much impressed by the fluency and grace with which as a young scholar at Wadhams he had translated a strophe of Pindar in an oral examination for his degree. Contrary to the advice of eminent counsel, the College, under the lead of Bethell, declined to compromise, and when the suit first came before the Master of the Rolls and afterward on appeal in the House of Lords, Bethell prevailed. It is said that it was at the argument that Sir Lohn Leach made the famous remark, "Mr. Bethell, you understand the matter perfectly as you understand everything else." By unremitting and steady toil, with no leisure for society or the enjoyment of family life, he forged ahead until the years were an unbroken chronicle of professional success. He applied for, and received, from Lord Chancellor Cottenham a silk gown in 1840 and thereafter devoted himself to advocacy, in the gift of which, "to quote again," as exercised before an educated tribunal, he was possessed to a degree which has never been surpassed, if, indeed, it has ever been equalled. In the power of concise and lucid exposition, of marshalling his facts and his comments and his law, and in an order which was so logical that it seemed not merely appropriate but inevitable; no one of his contemporaries ever approached him. Under his guiding hand the worse appeared the better reason. A sophism which in another used against him he would have ruthlessly exposed assumed on his tongue the appearance of self-evident truth. Nature had endowed him with exceptional physical gifts; the profile of his head and face were as clear-cut as that of a Roman medallion. The personality of the man is described by Nash: "His voice was clear and musical and as he warmed to his argument it gained in volume and there was a touch of sympathy which, coupled with the quaint wit of his illustrations, gave intellectual entertainment to his audience. For hours he would maintain an unbroken fluency without once changing an expression or losing the balance of his sentences. Every address was an oration, gradually unfolded and complete." I must add that these great gifts were coupled with a vitriolic sarcasm, which he used on all occasions with intended insolence and without compunction. Many there were, as we shall see, who may have smiled at the jest, but never forgave or forgot the purposed sting. "Never give in to a judge," was one of his sayings which faltered down through the traditions of Westminster Hall, and it was backed by a professional annual income for many years from fees alone which is said to have exceeded £20,000. By the exercise of these qualities he gained such an ascendency over Sir Launcelot Shadwell, Vice Chancellor, to whose court he had permanently attached himself and before whom he abandoned every semblance of deference, that rival counsel more than once declared that in that court, with Bethell against them, argument had become a mere figure of speech. "Shut up, you fool!" he said to Charles Neate, Fellow of Oriel College, whom he had goaded beyond endurance, and the Oriel tradition is, and I hope it is true, that he promptly knocked Bethell down. Holding a standing retainer from the defendant, he had drawn a bill in equity against him. At the hearing Bethell was obliged to argue for the defendant, by whom he had been retained or lose his gown. "Your Honor," said he, "of all the cobwebs that were ever spun in a court of justice this is the flimsiest; it will dissolve at a touch." And so the Court ruled. As he passed out, he whispered to the Solicitor who had instructed him for the plaintiff, "The bill is as good a bill as was ever filed." The story long lingered in the purlieus of Chancery that one of the Equity judges begged Bethell "that he might be addressed as a vertebrate animal and with as much deference as heaven might be pleased to bestow on a black beetle." "Take a note of that," he said to his junior, "his Lordship says he will turn it over in what he is pleased to call his mind." "Yes, some judges are damned idiots," was his reply to the suggestion at consultation that the Court probably would take a certain view of the case. His junior once made a suggestion at argument which the Court adopted; but all the recognition accorded his associate was, "I do believe this silly old man has taken your absurd point."
But Bethell was fighting his way to power, as James Graham once said of Disraeli, with the tomahawk and scalping knife. The highest honors of his profession led through Parliament. In 1851 he entered the House of Commons as the member from Aylesbury. While he did not arouse the antagonism of the House, it cannot be said that although strong in debate, he charmed the average member. In 1852 he was again returned and when the coalition ministry was formed he became Solicitor General at an annual salary of £6,000, while not obliged to relinquish his practice. Sir Alexander Cockburn was Attorney General and the two were classed as the "Moloch and the Belial of the Ministerial Bench."
By his power of lucid exposition he aided Gladstone, Chancellor of the Exchequer, greatly. One of his pet schemes was the Land Registration Act; but the conveyancers at first were too strong for him, and he also failed in his efforts to strengthen the administration of bankruptcy.
He continued in office under Palmerston. When Cockburn became Chief Justice of the Common Pleas, Bethell succeeded as Attorney General, with the yearly salary of £7,000. He gradually increased his reputation and carried through a bill establishing a common law Court of Probate and the removal of the probate business from the Episcopal registers. The Divorce and Matrimonial Causes Act had been forced through the House of Lords by Lord Chancellor Cranworth against the bitter opposition of Bishop Wilberforce. When the Attorney General moved its second reading in the House of Commons, Gladstone took up the cudgels in opposition. Eighteen sittings passed before the bill finally went on the statute book. Neither of the combatants failed to expose the weaknesses of the other, but by universal consent Bethell was held to have shown talent of the very highest order. Yet even here is the discordant, but true, note observed by Lord Selborne, "that Bethell had the unfortunate defect of never appearing to be candid and of never impressing his audience with anything more than a vivid appreciation of his extraordinary intellectual powers."
With the fall of Palmerston Bethell sat on the front opposition benches. The general election in 1859 saw him back as member for Wolverhampton and Palmerston in office as Premier. He now expected the Great Seal, but his services in the Commons could not be spared by the government, and Sir John, Lord Campbell, became Chancellor, and Bethell resumed office as Attorney General. Lord Campbell died im office on the 27th of June, 1861, and Sir Richard Bethell received the prize of his ambition and was raised to the peerage as Baron Westbury of Westbury in the County of Wilts.
The Chancery bar of course rejoiced that their leader had been advanced, while the judges before whom he had practiced must have breathed a sigh of relief. Queen Victoria, however, had objected to the appointment, although she finally yielded to the views of her Cabinet. When Westbury passed out of office and Cranworth came back, she remarked, as she delivered the Seal to the new Chancellor, "You see, my Lord, that it pays to be good instead of wicked."
The judges upon whom he had showered his sarcasms were men of high legal attainments, of great judicial experience, and never lacking in patience or courtesy. Westbury had now entered the lists and it was inevitable that his conduct in judicial office should be compared, not merely with his predecessors but with his contemporaries. Often he had said in argument at the bar, "Such, my Lords, is the law," but it has been said that all his inclusive generalizations were oftentimes statements of what he thought the law ought to be, rather than what the law was. Challenged, upon an occasion in the House of Lords, as to his authorities, he gravely announced that having presently to be elsewhere, his junior, Mr. Archibald, would produce for their Lordships an abundance of authority; but when the argument ended, Mr. Archibald very discreetly could not be found! It is commonplace that counsel whom the judge cannot trust implicitly in their statement of facts or in their citation of cases, to say the least, are not looked upon as an ornament to their profession. In the very first debate in which he participated in the House of Lords, angered at their position about the Bankruptcy Bill, which finally he had carried through the House of Commons and which was now up for its first reading, he spoke of Lord Cranworth and Lord Chelmsford; his predecessors in office, "From beginning to end not one word is correct of all you have heard from these noble and learned Lords." This, indeed, was an inauspicious beginning. As the years wore on the weight of his great mentality gained a recognized ascendency, but he never succeeded in gaining the respect or confidence of those whom he deliberately had disparaged.
Westbury was a sincere, thorough-paced law reformer, but interesting as a review of his efforts would be, I must pass them by. "Concise in reasoning, lucid in statement, expressed in purest English, his judgments found in the Law Reports of his time are unrivaled. He did not like to be asked to consider a collection of cases ranging over long periods and perhaps of doubtful application." "Judge-made law," says his latest biographer, "was his abomination and his ideal would have been to give statutory authority to a limited number of clearly expressed propositions and then to determine by pure ratiocination whether a particular set of facts fell within them." But while nature had endowed him with her choicest gifts, infallibility had been denied. Nothing, however, could disturb his imperturbable sense of infinite superiority. He cast some unfortunate trustees in their accounts, and went on to say if they had taken "the most ordinary precautions, had they employed a firm of reputable solicitors, had they taken the opinion of a member of the bar, they would never have been enmeshed in the snares which now held them." Whereupon their counsel, exasperated beyond endurance, handed up a brief, signed "R. Bethell," in which Bethell had advised the trustees to act as they had done. But after reading his former opinion, the only comment of the Chancellor was, "It is a mystery to me how the gentleman capable of penning such an opinion can have risen to the eminence which he now has the honor to enjoy." To the argument of counsel he once observed, "There are only two objections: it supports a principle of equity that has never been disputed and is indisputable, and it is utterly irrelevant to the application he has made." His disdain of common-law chancellors, meaning those who had practised principally at the common-law bar, was unlimited and undisguised, although in the House of Lords, with Chelmsford, Cranworth and St. Leonards, who each disliked him, he got on very well and generally the judgments were unanimous. It was in the Privy Council, which had jurisdiction of ecclesiastical causes, that he aroused deepseated enmity among those to whom he was known merely as Lord Chancellor and a member of Her Majesty's Cabinet. Dr. Rowland Williams and the Rev. H. B. Wilson, having been charged with denying the plenary inspiration of the Holy Scriptures and having been suspended by Dr. Lushington, Dean of Arches, promptly appealed to the Privy Council. By a majority, the Council reversed Lushington's decision and Westbury delivered the written judgment before an audience which filled the council chamber. "It caused," says Atlay, "to the vast majority of the members of the Church of England the liveliest indignation and dismay." The mock epitaph attributed to Charles Bowen, afterward Lord Bowen of the Court of Appeal, sums up the popular view of this judgment, although the Bishop of London, Tait, had concurred in it; and Dean Stanley, held it to be a charter of intellectual freedom for those within the Established Church. Here is the epitaph:
RICHARD BARON WESTBURY
LORD HIGH CHANCELLOR OF ENGLAND.
"He was an eminent Christian, an energetic and merciful statesman, and a still more merciful and eminent judge. During his three years tenure of office he abolished the ancient method of conveying land, the time-honored institution of the Insolvents' Court, and the eternity of future punishment. Towards the close of his earthly career in the Judicial Committee of the Privy Council he dismissed Hell with costs, and took away from orthodox members of the Church of England their last hope of everlasting damnation!" High and Low Churchmen were a unit, and a declaration, without reserve or qualification, of full belief in the inspiration of Holy Writ and the everlasting punishment of the wicked was signed by over ten thousand clergymen and the essays and reviews of Williams and Wilson were condemned as heretical by the Convocation of Canterbury. In the House of Lords, Baron Houghton (Barry Cornwall) who was a patron of literature, seemed to find in the Act of Convocation a revival of the old struggle over unlicensed printing. Accordingly he gravely arose and asked the Chancellor to define the powers of Convocation to pass judgments on books which the Church might consider as heretical. Westbury was never more at ease than in such a controversy, where he never feared the face of man or cared aught for any opinion which differed from his own. "Terrible he rode alone with his yemen sword for aid; argument it carried none save the notches in the blade." "Much to his regret," he replied, "the convocation had been promoted to transact business, but even so the convocation could be effectively dealt with in three ways: the first is, while they are harmlessly busy to take no notice of their proceedings; the second is when they seem likely to get into mischief to prorogue them; the third, when they have done something clearly beyond their powers is to bring them to the bar of justice for punishment." But as if this were not enough, he proceeded, "I am happy to tell your Lordships that what is called 'synodical judgment,' is a well-lubricated set of words, a sentence so oily and saponaceous that no one could grasp it. Like an eel it slips through your fingers." Samuel Wilberforce, Bishop of Oxford, and one of the Lords, spiritual, known as "Soapy Sam," had drafted the decree and no one in the House could mistake the allusion. Able and eloquent, but having more of the temperamental characteristics of St. Peter than of St. John, he arose and vehemently denounced the Chancellor as "the enemy of God's truth and Church." The echoes of this encounter long resounded; and the attitude of the Bishop thereafter, while rested upon sincere grounds from his own point of view, was exceedingly acrimonious. In Parker v. Leach, L. R. 1 P. C. 312, Westbury inadvertently used the phrase, "the inferior persons of the Trinity," and although privately and by a footnote in the reports he endeavored to correct the expression, his ecclesiastical critics saw in it only further evidence of his innate depravity and wickedness. But Nemesis was lurking in the shadows. The Chancellor, as chief of the Commissioners of Patents, discovered that the clerk had been guilty of irregularities with the public funds; he directed an inquiry and upon the preliminary report ordered charges to be preferred against the defaulter. The clerk, one Edwards, then asked to be allowed to resign, and the Chancellor agreed to discontinue proceedings if he did so and made restitution.
But while Edwards paid in the sum of £7,872, further investigation showed that there was still an arrearage of over £9,000. Edwards was also reading clerk in the House of Lords, and this office he proposed to resign if he could get the retiring pension. Lord Westbury very properly, it seems to me, held that miscondict in one office ought not to debar him of his rights in the other and promised to do all he could, "with propriety," to get the pension; Edwards petitioned the House of Lords accordingly. The petition was referred to a committee, to whom the facts of Edwards' misconduct as clerk of the Patent Commissiomers was not disclosed, and he received a retiring pension of £800 a year. The misdoings in the patent office were publicly known and the newspapers lost no time in exploiting the situation. To complicate the affair still more, the Chancellor had presented his son, Slingsby Bethell, already a registrar in bankruptcy, for the vacant clerkship. The Cabinet at first disregarded the rising storm, but at last were compelled to take notice, and Lord Westbury, with the knowledge and assent of his colleagues, moved in the House of Lords for a select committee of investigation. Voluntarily he appeared before them as a witness and disclosed all which he knew; but the report, while absolving the Chancellor from any unworthy or unbecoming motive, held that he had failed in his public duty in not disclosing Edwards' misconduct when seeking a pension.
Humiliating as this report must have been, more was to come. The cup was not yet full. In the administration of the Bankruptcy Acts a great waste of public funds had been disclosed and grave abuses had crept in. Lord Westbury had punished the offenders rigorously, but in the case of the registrar of Leeds, one Wild, the registrar was informed that unless he at once applied for leave to resign he would be called upon to show cause why he should not be dismissed. The chief registrar in bankruptcy, through whom the information was given, for some reason never disclosed, said to Wild if he applied to resign by reason of ill-health, he might obtain the retiring pension connected with the office. A letter of resignation which followed enclosed a petition, supported by a medical affidavit of ill-health. The Chancellor, unwittingly, it should be said, accepted the resignation, granted the pension and appointed to the vacant office a barrister who had loaned quite a little money to the Chancellor's son, Richard Bethell. The judgment of unprejudiced contemporaries exonerated, and the judgment of posterity exonerates Westbury from the faintest suspicion that any one could influence him or that he ever was influenced corruptly. But he never had carried "gentle peace to silence envious tongues"; he was now to be judged even as he had judged others. The House of Commons acted and before a select committee the Chancellor again appeared and gave evidence, and the censure was heavy. "The pension to Wild had been granted without investigation and with such haste and want of caution as to give rise to a suspicion that a vacancy in the office was the object sought, rather than justice to the officer or the public." Nor was the blow much lessened by his complete absolution on the part of the committee from all improper methods and from all knowledge of the schemes to get the new incumbent appointed. Broadcast these reports went throughout the realm, and nothing was now left to Westbury but to resign promptly. Before the first report came in he expressed his wish to Lord Palmerston and Lord Granville to be permitted to retire, and now after the report in the Commons he pressed his resignation again. Ever an opportunist of the first order, the Prime Minister had steered himself and party safely by more dangerous reefs and shoals, and still insisted that the Chancellor retain office. It was a fatal mistake. The chairman of the committee moved in the Commons a vote of censure on the ground that the laxity, of which the Chancellor had been found guilty, tended to discredit the administration of his office. When the debate came on Westbury was supported by the chiefs of his party, the Lord Advocate, the Attorney General, and by Denman. The defence, however, was nothing more than confession and avoidance. After a motion to adjourn had been put and the Premier had lost by a vote of 163 to 177, Palmerston was left to make the admission that nothing more was to be said to prevent the vote of censure to be carried and agreed to. Midnight had passed when Palmerston's messenger, carrying the ominous news that his public career had been closed, aroused Lord Westbury from a calm and untroubled sleep. It has been pretty strongly affirmed that Westbury finally fell a victim to clerical animosity. The biographies by Nash and Atlay, however, present what seems to me a true view. I quote:
"Apart from his peculiarities of speech and manner, Lord Westbury's marked disregard of conventionalities at this time exposed him to obloquy, and he had contrived to give dire offence to certain influential personages in whom neither the will nor the power to retaliate was lacking. This was the opinion that impelled the steel. Moreover, when his need was the sorest, the voice of his own profession was strongly against him, not merely for his caustic and bitter tongue and his assumption of moral no less than intellectual superiority, but for the discredit which his culpable laxity had brought upon the most honored office in the realm."
The Chancellor's resignation followed, and his last address from the woolsack to a crowded house was most noble and manly.
"Upon that memorable scene
He nothing common did or mean."
There can be no doubt that Westbury felt his fall keenly, but he still sat in the House of Lords to hear appeals, and after Lord Kingsdown's death presided in the judicial committee of the Privy Council. The old mocking, bitter humor never died. It did not seem even to flicker. As he was leaving the House of Lords on the day of his resignation, he met Lord Ebury, who had attempted by bill to make some changes in the burial service, but had been defeated. "My Lord," he said, with his slow, deliberate utterance, "you can now read the burial service over me with any alterations you may think proper."
Lord Colonsay he did not like, and meeting on the street Sir William Erie, who had just retired from the Chief Justiceship of the Common Pleas, the ex-Chancellor said:
"My dear fellow, why do you not attend the Privy Council?"
"Oh, because I am old, and deaf, and stupid."
"But that is no reason at all, for I am old, and Williams is deaf, and Colonsay is stupid, and yet we make an excellent Court of Appeal."
Nor did he like Sir William Bovill, chief justice of the Common Pleas. "Ah, poor Bovill," he observed, on one occasion, "if he only knew a little law he would be the worst judge on the bench."
Appreciation of his great services led to the offer twice of the position of Lord Justice of the Court of Appeal, but his health had begun to decline and while greatly gratified at this recognition, he did not care to resume judicial work or, as I suspect, to take a subordinate position where he had reigned supreme and unchecked. It is no pleasure to know that he was against us in the Civil War, and strongly opposed the Treaty of Washington upon which the Geneva Arbitration rested; but so were Brougham, Gladstone, Palmerston and Lord John Russell, while Selborneand Cockburn were no less hostile to the settlement of our claims by a treaty of peace rather than by the arbitrament of arms. "In the last analysis," says Emerson, "intellect and conscience are one." "I am an old man, my Lords," said Westbury, "and I am more and more convinced every day that education, to be worthy of the name of education, must be based upon religion and morality."
Let us hope that these words truly expressed the man. Yet it is almost impossible to avoid the inference from his life, that he fully believed, and acted as he believed, that mankind could live by bread alone, and that he who had a giant's strength should, if immediately expedient, use it like a giant, let the consequences fall where they might. Bryce ranks Cairns as the greatest of the Victorian Chancellors, but for qualities which this paper has endeavored to bring out Westbury is by far the most brilliant and unique, and in point of sheer intellect and an unconquerable will had no superior. He died in his seventy-third year, preceded just twelve hours by Bishop Wilberforce, his greatest foe, who passed in the prime of his physical and mental powers.