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The name of FE Smith will be familiar to anyone with a connection to law and the North West, Gray’s Inn, the administration of English law more generally, or those who enjoy a scathing turn of phrase and witty put down.
FE Smith’s first contact with Birkenhead occurred on the 12th July 1872 when he was born in Pilgrim Street. His father was, inter alia, a barrister of the Middle Temple and sometime Mayor of Birkenhead. His mother was the daughter of a rate collector. It was at Sandringham School in Southport at the age of ten that FE Smith first announced his ambition to become Lord Chancellor.[1] Birkenhead School followed (1887-1889). As noted above he then enrolled at the University of Liverpool (then University College, Liverpool) in 1889 as a result of winning a £20.00 Ranger Scholarship.[2] He attended the University for four terms and may have received lectures from the noted legal historian Edward Jenks, later Queen Victoria Chair in Law (1892-1896).[3] Conditions at the University at the time are vividly depicted by Ramsay Muir, one of FE Smith’s contemporaries:
“When I entered it, the main part of the college was housed in a disused lunatic asylum, in a slum district, with a huge workhouse on one side, and on the other the Royal Infirmary with its medical school, which became the Medical Faculty. Across a corner of the derelict quadrangle ran a deep railway cutting, which belched forth clouds of smoke. The street which climbed the hill from the city to the college – about a quarter of a mile long – contained twenty-two public houses and a number of sordid shops; the pavements were haunted by slatternly women and barefoot street Arabs. The city abattoirs lay just behind and diffused a smell of blood. These were sorry surroundings for the education of aspiring youth.“[4]
Much has changed – including the number of pubs and slatternly characters! Fagan has commented favourably on FE Smith’s time at the University in Liverpool and how it gave him a good grounding for his time at Oxford. Fagan notes:
“…it seems likely that the two years he spent at University College, Liverpool, which had been founded only seven years earlier in 1882, may well have made his subsequent Oxford career possible. They appear to have enabled him to arrive at Oxford a good deal more mature and experienced than he otherwise would have been.”[5]
At the University, the Faculty hope that undergraduate engagement at the University now reaps similar rewards for the students of today. After the University of Liverpool, where he did not take a degree, FE Smith went up to Wadham College, Oxford, in 1891 after winning a scholarship. On this change of University, it has been noted, “FE was not slow to appreciate the implications of his success in the Wadham Scholarship examination. He had already been at Victoria University, Liverpool, for a year, and now he was mercifully rescued from the provinces.”[6] This account does not accord well with two factors, both of which relate to FE Smith’s return to Liverpool following his time at Oxford. First, he returned to take up practice in the City, and secondly, he returned to the University of Liverpool, this time in a teaching capacity. As Kelly has noted a group of part-time lecturers were recruited to bolster teaching activity. These included “another former Liverpool student, FE Smith, the future Lord Birkenhead, at that time struggling young barrister…He was not…a success as a popular lecturer.”[7] The provinces seemed a good place for FE to commence his legal career if, at the time, Liverpool can actually be considered provincial, at least in the sense that it was a major trading City of international importance. Fagan has also argued that FE Smith “looked to his background and his constituency of Walton in Liverpool as his base and inspiration.”[8] If FE Smith was grounded in this way, this does not suggest the mind-set of someone desperate to escape the so called provinces. FE Smith was not however averse to poking fun at his background as the following exchange between him Lord Chief Justice Hewart demonstrates:
"He [Hewart] was proud of his origin. Nevertheless he could laugh - especially with Birkenhead, another self-made man from Lancashire - at the foibles of others who came from the same area. "Oh, we couldn't have that Lancashire Accent on the Bench, Gordon," said "F.E" when Hewart was mildly pressing the claims of a mutual friend whose broad speech had never changed. Hewart smiled ruefully and agreed."[9]
At Oxford FE Smith went on to take a first in 1895 having switched from classics to law. Having won the Vinerian scholarship in law, FE Smith was elected a fellow of Merton College, Oxford (1896-1899). Oxford also apparently had the effect of removing FE Smith’s provincial accent[10] as well as instilling in him a lifelong favouritism towards Wadham graduates.[11]
Next came Gray’s Inn and the customary dinners. These had been consumed by the end of his time in Oxford. He chose Gray’s Inn on the advice of his father, a Middle Temple man. Smith senior’s reasoning was, “If you judge the Institution by beauty it is the most beautiful of all the Inns of Court. It is the most intimate of all the Inns – and it is the smallest. It enables a man who relies not upon patronage, but upon his own ability to win advancement most swiftly.”[12] As with Wadham before, Gray’s Inn provided the close and convivial surroundings in which FE Smith appeared to thrive.
FE Smith’s Gray’s Inn admission records make for interesting reading. He was admitted on the 15th November 1894.[13] His referees included Percy Douglas, a barrister of the Middle Temple. Writing on St James’ Square Sports Club notepaper, Douglas noted: “…he [FE] is in my judgment in every way a suitable person to be a member of Gray’s Inn.” His subsequent career vindicated Douglas’ view. FE Smith was called to the Bar in the Trinity term of 1899. Eight years and eight months later he was made a silk on the 13th February 1908.[14] The Gray’s Inn call record in full states:
“Frederick Edwin Smith B.C.L., M.A. Fellow of Merton College, Oxford, Vinerian Scholar, 1896, Oxford University; Certificate of Honour C.L.E.: the eldest son of the late Frederick Smith of Birkenhead, in the County of Chester, Barrister at Law.”[15]
As noted above, Liverpool and the Northern Circuit beckoned and FE Smith returned to the area of his birth. He married Margaret Furneaux (1878-1968) in 1901. They had three children. The family home was initially at The Grove, Thornton Hough, on the Wirral. He joined Leslie Scott in Chambers in Cook Street, Liverpool, where licensing work proved to be the foundation of his future success.[16] His fee income for his first year has been recorded, “…he made 48 guineas in his first six months and a remarkable sum of £530 in 1900 at the Liverpool Bar…”[17] This would be equivalent to approximately £51,720.00 in today’s prices.
In addition to large fees, an entry into politics followed his return to Liverpool. He successfully fought and held the (then) Tory seat of Walton from 1906 until 1918 (following boundary changes in 1918 he represented the neighbouring West Derby constituency). A move to 70 Eccleston Square, London, and the London bar followed, as did his Liverpool bar success. He could no longer be considered a “a jumped-up provincial lawyer.”[18] FE Smith became a QC and a Bencher of Gray’s Inn in 1908,[19] a year after he had purchased a country seat near Banbury.
One of his key clients at this time was fellow Birkenhead peer the Lord Leverhulme. He could also count, inter alia, Arthur Ransome, Horatio Bottomley, and Dr Crippen’s mistress as clients. Professional success enabled a move to 32 Grosvenor Gardens, London, in 1913 (where he died on the 30th September 1930 following a bout of pneumonia). In 1916, he became Attorney-General, an acknowledged stepping stone on the road to high judicial office. In this capacity “Freddie Smith AG”[20] was involved in the treason trial of Sir Roger Casement. FE Smith had previously been Solicitor-General (1915) and accepted the customary knighthood as Sir Frederick Smith. It was at this time when Attorney-General that FE Smith advised his colleagues in a legal and political capacity. As Lord Beaverbrook notes:
“Early in January, 1917, I went to ask the advice of this wise counsellor…F.E. Smith was a man if supreme intellectual ability with an amazing power of making mistakes in the minor affairs of his life. He was always the worst judge of his own affairs and the best judge of other people’s affairs. His story was a tale of unbroken success in his public career. There was that time no heights to which his talent might not carry him.”[21]
On the 24 January 1918 he was made a baronet. A little over a year later on the 2nd February 1919 he was elevated to the peerage as Lord High Chancellor of England. He replaced Viscount Finlay as Lord Chancellor.[22] FE Smith took the title Lord Birkenhead. Campbell has noted that in adopting this title FE Smith, “instantly invested his decaying industrial birthplace with the glamour that formerly attached to his initials.”[23] There was another contemporary view. Writing in her diary on January 16th and 22nd February 1919 Lady Londonderry observed:
“FE is brilliant, and self-made…so he really deserves success, though he has no character…I was amused at FE taking “Birkenhead” as his title. Curiously enough, his father was agent to my grandfather [18th Earl of Shrewsbury] for his Birkenhead estate.”[24]
Lord Birkenhead progressed rapidly through the ranks of the peerage moving from a barony to become a Viscount on the 15th June 1921 and finally to the rank and title of the Earl of Birkenhead on the 28th November 1922. This speedy progression, whilst still in his mid-fifties, perhaps accounts for another name given to FE Smith, “Lord Burstinghead”.[25] The conferment of Knight Grand Commander of the Most Exalted Order of the Star of India (GCSI) in 1928 must have also contributed to his feeling of self-importance and he was reportedly, “annoyed not to add the Garter to his collection of glittering prizes.”[26] Despite the political patronage and favouritism Lloyd-George had shown him, Lord Birkenhead was not afraid to stand up to his Prime Minister. This is most obviously evidenced by their disagreement over the Lord Chief Justice vacancy that arose in 1921. As Lord Pannick QC has noted a “shabby deal was done”[27] whereby Lord Trevethin held the post until political circumstance allowed Gordon Hewart to take up the post.[28]
Lord Birkenhead’s next and final government appointment came as Secretary of State for India in the Baldwin administration. He was appointed in November 1924. The Viceroy did much of the work leaving FE to concentrate on his golf. As noted above his reward came in the form of the GCSI.
Of his character Churchill observed, “He had all the canine virtues in remarkable degree – courage, fidelity, vigilance, love of the chase…He loved pleasure; he was grateful for the gift of existence; he loved every day of his life.”[29] FE Smith is perhaps best known to posterity for the humorous and robust side of his temperament. His bon mots have become legendary. I will mention a few here before we move into the more substantive areas being considered in this column. In response to his elevation to the woolsack as Lord Chancellor he noted “Should I be drunk as a lord or sober as a judge?”[30] and whilst still practicing at the Bar he was heard to have the following exchanges with members of the judiciary: “Mr Smith, having listened to your case, I am no wiser.” Smith responded, “‘Possibly not, m'lud, but much better informed.”[31] On another occasion the following exchange is said to have occurred: “What do you suppose I am on the Bench for, Mr Smith?” Smith responded: ‘It is not for me, Your Honour, to attempt to fathom the inscrutable workings of Providence.’[32] To the same judge FE Smith is quoted as saying by reference to his predecessor Lord Chancellor, Sir Francis Bacon, “…that a much talking judge is like an ill-tuned cymbal…”[33] There are more critical views of FE Smith’s character. Writing in 1983 Cocks observed, “…it is a little difficult to see how an abrasive character such as his would have been received with great enthusiasm in traditional Circuit company.”[34] No evidence is provided by the author for this assertion although other sources do talk to a darker side to FE Smith’s nature.
As noted above, FE Smith died aged 58 in 1930. His brother, Harold Smith, a fellow barrister, also died prematurely. He was aged 48 in 1924 when he died. Their father had also died young. He had only reached the age of 43 when he died. For all their qualities the Smiths were not built for long life.
The impecunious Earl?
It is not unusual for members of the peerage to suffer from liquidity issues.[35] Indeed, it is not novel for a Lord Chancellor, or one of their descendants,[36] to suffer the misfortunes of over-indebtedness.[37] One of the main drivers of what Professor Sir David Cannadine has called the “Decline and fall of the British aristocracy” occurred during FE Smith’s political life, i.e. David Lloyd-George’s taxation policies that severally attacked the landed aristocracy.[38] It is not perhaps then surprising that FE Smith himself had some financial difficulties. Or at least that is the thesis proposed in this column. FE Smith died in 1930. Before his relatively early death he published a number of books on various topics. It could be argued that this was unusual and that the books were published to raise money for the then impecunious Earl. The drivers of this indebtedness are well known. FE Smith engaged in heavy drinking and had a passion for the finer things in life. Whilst his income at the Bar could have sustained this lifestyle, his switch to politics and the judiciary may have impacted on his income. Like Charles Dickens before him, FE Smith may have seen publishing as his way out of indebtedness. Support for the thesis comes from the diverse subject matter of the books (see below). One recent commentator, Fagan, has drawn attention to FE Smith’s financial position: “He always claimed to have known poverty and, indeed, he was frequently in trouble with his creditors…His extravagance had to be matched by embarrassing attempts to raise income in ways not thought suitable for an ex Lord Chancellor”[39] This may well have been the case, but what evidence is there to support this view?
On his elevation to the Woolsack as Lord Chancellor, FE Smith himself raised some doubts regarding the reduction in earning capacity, an issue as live now as it was in 1918. As one biographer has noted, FE Smith was reluctant about “giving up his earning potential at the bar, the only way he could support his extravagant lifestyle.”[40] It was not just FE Smith who had doubts about him becoming Lord Chancellor. He was only 46 at the time and did not carry the “legal authority [or] moral character for the Woolsack.”[41] As Campbell has observed The Morning Post “complained that it was carrying a joke beyond the limits of a pleasantry”.[42] His tenure as Lord Chancellor lasted until the end of 1922. He was replaced in that office by Viscount Cave.[43] It was from that date that we then encounter a flurry of publishing from the Earl of Birkenhead, perhaps to fill the void in his finance, perhaps to fill the void in his time. Campbell has referred to this output as, “…a prolific stream of books of varied quality… serious historical and literary essays… some frank potboilers.”[44] During his lifetime, FE Smith published at least fourteen volumes on such diverse topics as, inter alia, international law,[45] the Destruction of Merchant Ships under International Law,[46] visiting America,[47] Newfoundland,[48] points of view,[49] contemporary personalities,[50] world problems,[51] famous trials,[52] members of the judiciary,[53] America,[54] letters,[55] turning points in history,[56] essay collections (not his essays but the work of others),[57] the world in 2030,[58] famous fights,[59] as well as a two general collections on “law life and letters”[60] and his last essays.[61]
The Earl of Birkenhead left the Government in October 1928. He took up directorships at Imperial Chemical Industries (ICI)[62] and Tate & Lyle.[63] As a consequence, he was also able to engage in journalism and his book publication activity.
The main counter argument to poverty driving the publication thesis is that, like his close friend and political ally, Sir Winston Churchill, FE Smith was a keen author and his motivation for publishing was intellectual not monetary. This literary interest runs in the family. The 2nd Earl of Birkenhead famously published a biography of his father.[64] The second main rejection of the thesis being proposed in this column is that FE Smith published a collection of his speeches in 1910,[65] when he was at the height of his earning power as a QC. He may have been genuinely interested in publishing, even so called “pot boilers.” The final rebuttal point is that his wealth at death was £63,223 1s. 6d, just under £4 million at today’s prices. This was however, apparently insufficient to meet his debts.
References
[1] Campbell ODNB Birkenhead.
[2] On the history of the University of Liverpool see: Kelly, T. For Advancement of Learning – The University of Liverpool – 1881-1981. Liverpool University Press, Liverpool, 1981, at page 122. (Hereafter Advancement of Learning).
[3] ibid, p.528. Jenks contribution to legal scholarship will be discussed in a future column.
[4] Ramsay Muir. An Autobiography and Some Essays, ed Stuart Hodgson. Lund Humphries, 1943, p.23 (Cited in Campbell, J. FE Smith – First Earl of Birkenhead. Pimlico, London, 1991, pp. 26 & 27.)
[5] Fagan Birkenhead, p.58.
[6] Camp Glittering, p.17. FE Smith also used provincial in a pejorative sense but in relation to Birmingham. See: Birkenhead, Earl of. Fourteen English Judges. 1926, p.305.
[7] Advancement of Learning, p.122.
[8] Fagan Birkenhead, p.56.
[9] Jackson, R. The Chief – The Biography of Gordon Hewart Lord Chief Justice of England 1922-1940. George G. Harrap & Co Ltd, London, 1959, p.296.
[10] See: Polden, P. The Judiciary, in: Cornish, W & Anderson, S & Cocks, R & Lobban, M & Polden, P & Smith, K (Eds). The Oxford History of the Laws of England. Volume XI – 1820-1914: The English Legal System. Oxford University Press, Oxford, 2010, p.968.
[11] ibid, p.1023.
[12] Birkenhead, Earl of. The Speeches of Lord Birkenhead. Cassel & Co, Ltd, London. 1929, p.119.
[13] Gray's Inn archives: ADM/9 Admission Documents vol 1891-94, admission form 20 Nov 1894 (Smith, F E).
[14] Sainty, JC. A list of English law officers, king's counsel and holders of patents of precedence. Selden Society, London, 1987.
[15] Gray's Inn archives: BAR/2/1 Gray's Inn Call List 1899 Trinity Term.
[16] Fagan Birkenhead, p.59. For details of FE Smith’s fee income during his early years in practice. For a discussion of life in FE Smith’s Chambers see Jager, H. Brief Life. Liverpool, 1934, p.104.
[17] Lewis, JR. The Victorian Bar. Robert Hale, London, 1982, p.158.
[18] Campbell ODNB Birkenhead.
[19] Gray's Inn archives: PEN/4/19 Pension Books vol 19 (1906-10), pp 282, 292, 303.
[20] Sullivan, AM. The Last Serjeant - The Memoirs of Serjeant A M Sullivan Q C. MacDonald & Co, London, 1952, p.272
[21] Beaverbrook, Lord. Men and Power, 1917-1918. Hutchinson, London, 1956, p. 48, Chapter X “The Cleverest Man in the Kingdom”. Beaverbrook continues, “FE Smith – a biting ad witty tongue which spared no man and every woman. He had a soft heart…His conversation was like a flashing display of fork lightning.” I am grateful to Dr. Daniel Gosling, assistance archivist at Gray’s Inn, on this point.
[22] Lord Chancellor between 1916 and 1919.
[23] Campbell ODNB Birkenhead.
[24] See: Montgomery Hyde, M. Carson – The Life of Sir Edward Carson, Lord Carson of Duncairn. William Heinemann Ltd, London, 1953, p.438.
[25] In FE Smith’s defence he is not unique. One of FE Smith’s own contemporaries had a meritocratic rise through the peerage, namely, Sir Rufus Isaacs KC, who finally topped out as the Marquess of Reading after being created a baron, Viscount, and Earl by Lloyd-George. Much like the Duke of Wellington a century earlier, the Marquis of Reading received his titles of nobility in very rapid succession. Both men are also examples of commoners being raised to Marquessates. See further: Lentin, A. Isaacs, Rufus Daniel, first marquess of Reading (1860–1935). Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2011 [http://www.oxforddnb.com.liverpool.idm.oclc.org/view/article/34119, accessed 20 April 2017]
[26] Cannadine, D. The Decline and Fall of the British Aristocracy. Vintage, London, 1999, p.305. Hereafter Cannadine Decline. No appointments have been made to this Order since 1948.
[27] Pannick, D. Judges. Oxford University Press, Oxford, 1987, pp90-91.
[28] On Hewart see: Jackson, R. The Chief – The Biography of Gordon Hewart Lord Chief Justice of England 1922-1940. George G. Harrap & Co Ltd, London, 1959, from p.127 on the LCJ episode.
[29] Birkenhead, the Second Earl of. Frederick Edwin – Earl of Birkenhead – The First Phase. Thornton Butterworth Limited, London, 1933. (Hereafter Birkenhead on Birkenhead), pp. 12 and 15.
[30] Hirst, FW. In the Golden Days, 1948, p.106.
[31] Campbell ODNB Birkenhead.
[32] ibid.
[33] Birkenhead, the Second Earl of. Frederick Edwin – Earl of Birkenhead – The First Phase. Thornton Butterworth Limited, London, 1933. (Hereafter Birkenhead on Birkenhead), p.115.
[34] Cocks, R. Foundations of the Modern Bar. Sweet & Maxwell, London, 1983, pp.171, 172.
[35] See further: Tribe, J. Parliamentarians and Bankruptcy: The Disqualification of MPs and Peers from Sitting in the Palace of Westminster (2014) King's Law Journal, 25(1), 79-101 (Hereafter Tribe Peers).
[36] The 2nd Earl of Halsbury died following bankruptcy despite being a KC and sometime Commissioner in Bankruptcy. See Tribe Peers.
[37] See further: Tribe, J., & Graham, D. Bacon in debt: the insolvency judgments of Francis, Lord Verulam (2006) Tolley's Insolvency Law and Practice, 22(1), 11-16.
[38] Later, and perhaps hypocritically, raised to the peerage as Earl Lloyd-George. It is perhaps ironic that the 3rd Earl was declared bankrupt. See Tribe Peers. On Lloyd-George and his policies see: Cannadine Decline. It is also perhaps ironic that one factor leading to the end of the Lloyd-George administration was the sale of honours. Horatio Bottomley had been one of FE Smith’s clients.
[39] Fagan Birkenhead, pp.56 & 68.
[40] Campbell ODNB Birkenhead. A similar point is made by Fagan Birkenhead, p. 66, “More Seriously, it [taking the post of Lord Chancellor] reduced his income substantially.”
[41] ibid.
[42] 11th January 1919. ibid.
[43] Twice Lord Chancellor, 1922-1924 and 1924-1928.
[44] Campbell ODNB Birkenhead.
[45] Smith, FE. International Law. 1900. Being published in 1900 obviously excludes this work from being considered within the thesis being tested in this column.
[46] Smith. FE. The Destruction of Merchant Ships under International Law. J. M. Dent & Sons, London, 1917.
[47] Smith, FE. My American Visit. Hutchinson & Co., London, 1918.
[48] Birkenhead, Earl of. The Story of Newfoundland ... New and enlarged edition. H. Marshall & Son, London, 1920.
[49] Birkenhead, Earl of. Points of View. vol II. Hodder and Stoughton, 1922.
[50] Birkenhead, Earl of. Contemporary personalities. Cassell, London, 1924.
[51] Birkenhead, Earl of. Approaches to world problems. Yale University Press, Yale, 1924.
[52] Birkenhead, Earl of. Famous Trials of History. 5th Edition. Hutchinson, London, (Signed presentation copy in the author’s possession)
[53] Birkenhead, Earl of. Fourteen English Judges. Cassell and Company, Limited, London. 1926. (dedicated to the Countess).
[54] Birkenhead, Earl of. America Revisited. Cassell and Co Ltd, London, 1924.
[55] Birkenhead, Earl of. The Five hundred best English letters. Cassell, London, 1931.
[56] Birkenhead, Earl of. Turning Points in History. Hutchinson & Co. Pubs. Ltd.
[57] Birkenhead, Earl of (Ed). The Hundred Best English Essays. Cassell and Company Ltd, London, 1929.
[58] Birkenhead, Earl of. The World in 2030 AD. Hodder and Stoughton, 1930.
[59] Birkenhead, Earl of. Fifty famous fights in fact and fiction. Cassell, London, 1932.
[60] Birkenhead, Earl of. Law Life and Letters. In Two Volumes. Hodder & Stoughton, London. 1927 (dedicated to his daughter Lady Eleanor).
[61] Birkenhead, Earl of. Last essays. Cassell, London, 1930.
[62] On the history of ICI see: Reader, WJ. Imperial Chemical Industries: a history. Oxford University Press, London, 1970. See also: https://www.theguardian.com/business/2007/jun/18/2
[63] Sir Henry Tate, the sugar baron and philanthropist, was among the early funders of the University of Liverpool. He gave £42,500 to the institution and a plaque commemorating this generosity can be seen on the outside of the Victoria Gallery & Museum. On Sir Henry see: Munting, R. Tate, Sir Henry, first baronet (1819–1899). Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, 2004. On the history of Tate & Lyle, see: Hugill, A. Sugar and All That - A History of Tate & Lyle. Gentry Books, London, 1978. See also: http://www.tateandlyle.com/aboutus/history/pages/history.aspx
[64] See further: Birkenhead, the Second Earl of. Frederick Edwin – Earl of Birkenhead – The First Phase. Thornton Butterworth Limited, London, 1933. (Hereafter Birkenhead on Birkenhead)
[65] Smith, FE. Speeches delivered in the House of Commons and elsewhere, 1906-1909. H. Young, Liverpool, 1910.
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