Bethell, Richard, first Lord Westbury 1800-1873, lord chancellor, the son of Richard Bethell, M.D., of Bristol, the grandson of Samuel Bethell of Bradford-on-Avon, and the great-grandson of Thomas Bethell, also of Bradford-on-Avon, who died in 1755, was born at Bradford-on-Avon 30 June 1800. He was educated partly at Corsham School, near Bath, partly at Bristol. At the age of fourteen, while still, as he used to say, wearing a jacket and a frill, he presented himself at Wadham College, matriculated, and in a few months gained a scholarship. He had just completed his eighteenth year when he graduated, taking a first class in classics and a second in mathematics—an instance of precocity which, among men who have gained distinction in later life, is paralleled only by that of Phillpotts, bishop of Exeter. It was his frequent boast that from the age of seventeen he supported himself entirely by his own exertions, his father being no longer able to bear the expense of maintaining him at Oxford. After taking his degree he continued to reside in Oxford, and in a few years he was appointed to a fellowship in his own college, having previously, it is said, unsuccessfully opposed the future Cardinal Newman as a candidate for an Oriel fellowship. In 1823 he was called to the bar as a member of the Middle Temple, and he decided to practise in the equity courts, then presided over by Lord Eldon, the chancellor, Sir Thomas Plumer, the master of the rolls, and Sir John Leach, the vice-chancellor. On the strength of his academical reputation an opportunity was offered to Bethell a few years after his call, of which he availed himself, and which assured his success. An action had been brought against Brasenose College, and some eminent legal authority had advised the college to agree to a compromise. The question was of great importance, and on the recommendation of Dr. Gilbert, then principal of Brasenose, Bethell's opinion was taken. It was strongly in favour of continuing the action. The college followed his advice, and both before the vice-chancellor and on appeal before the House of Lords they were successful (Attorney-General v. Brasenose College, 1 L. J., N.S. 66; 2 Cl. & Fin. 295). From this time his practice grew very rapidly. In 1840 he was made a queen's counsel by Lord Cottenham, and thereafter he settled in the court of Vice-chancellor Shadwell, over whose easy mind he exercised an extraordinary influence. By the aid of a wide knowledge of law, great industry, and unexampled audacity, he moved quickly to the front, and on the promotion of Knight Bruce and Wigram, in 1841, found himself the leader of the chancery bar, making an income which is said to have for many years exceeded 20,000l. Not till 1847 did he make any attempt to enter parliament. He failed in his first contest, when he stood as a liberal-conservative for Shaftesbury; but four years later he appeared with somewhat more advanced opinions, prepared to support the ballot and the abolition of church rates, and was returned for Aylesbury. The change in his attitude has been curiously exaggerated through his having been confounded with another Richard Bethell, a tory, who was member for the East Riding of Yorkshire from 1832 to 1841; but certainly his liberalism was steadily growing stronger, and, after being re-elected for Aylesbury in 1852 and 1857, was in 1859 returned for Wolverhampton. The conservative element in his nature, however, never disappeared; though on questions of personal liberty, such as the admission of Jews to parliament and the abolition of tests in universities, he was at one with the advanced party. He retained his belief in the value of a landed aristocracy. I do not know anything, he said, that is more important to preserve in this country than the great rule by which the landed property of the father passes to the eldest son.
Bethell had not long to wait for promotion. In 1851 he was appointed vice-chancellor of the duchy of Lancaster; in the following year he became solicitor-general in the Government of all the talents, and in 1856, when Sir Alexander Cockburn was raised to the bench, he was made attorney-general. With one interval in 1858 and 1859 he held this last office until he became lord chancellor. When Bethell entered the House of Commons the necessity of great measures of law reform had for the first time begun to be recognised as of serious political consequence, and the weight of the work fell chiefly on his shoulders. Nothing did more to raise his reputation than the manner in which he carried through committee Mr. Gladstone's Succession Duty Bill, one of the most difficult and technical measures ever dealt with by parliament, and one which gave splendid scope for that readiness of apprehension and clearness of exposition in which he was unrivalled. He took a leading part also in the debates on the Oxford University Bill of 1854, and as attorney-general he introduced and carried through in 1857 the Probate and Administration Bill, the Divorce and Matrimonial Bill (carried almost single-handed against the most bitter opposition), and the Fraudulent Trustees Bill, and in 1861 the Bankruptcy and Insolvency Bill. This last measure, on which he had built high hopes, was marred, as he believed, by the rejection of his proposal to create a chief judge in bankruptcy—a proposal to which parliament returned when in 1869 it next legislated on the subject. He had other schemes of law reform, which advanced more slowly. On the subject of legal education he entertained the largest notions, desiring to see the Inns of Court erected into one great legal university, which should not merely undertake the training of professional lawyers, but co-operate with other universities in general education (Hansard, 1 March 1854); but he was able to do no more than induce the different Inns of Court to consolidate their rules, and to institute studentships as an encouragement to legal study. More valuable results came from the impulse which he gave to the question of codifying the law. One of his first acts as solicitor-general was to prepare, and induce Lord Cranworth to accept, a measure for the consolidation of the statute law. The measure did not become law, and the subject was handed over to be considered by a statute law commission, which reported in favour of revising and consolidating the statutes, and of repealing all obsolete provisions. Bethell was himself in favour of codification pure and simple, but agreed to support the modified scheme as the first step towards a code; and in 1861, under his guidance, was passed the first of the Statute Law Revision Acts, formally repealing all enactments which are no longer in force, or which have become unnecessary. In 1863, when as lord chancellor he introduced the second of these acts, he reviewed the whole subject in one of his ablest speeches (afterwards published and edited by Macqueen, Q.C.), describing the confusion into which law had passed, and advocating as a further step the framing of a digest. The commission of 1866 reported in similar terms, but after some attempts to carry it out the proposal was abandoned. The work of revision, however, has since been actively carried on, and has led to the publication of a new edition of the statutes, now brought up to the year 1875, and including in seventeen volumes all of them that are effective (see Holland's Essays on the Form of the Law). Another and wider reform has been accomplished in a great measure through Bethell's persistent advocacy. As president of the Juridical Society (see his Address, i. 1), in his public speeches in and out of parliament, and even on the bench, he lost no occasion of proclaiming the absurdity of the separation of law and equity; but it was reserved for other hands to carry out the work of fusion. He died a fortnight before the passing of the act which declared that thenceforth law and equity should be concurrently administered.
His eager desire to take the lead in the removal of legal abuses brought him into frequent conflict with his chiefs, for whom he had an undisguised contempt. Especially did he exasperate them by repeatedly calling public attention to the inefficient condition of the House of Lords as a court of appeal, which he did rather venomously, but with perfect sincerity and with good cause. Lord Campbell has unjustly credited him with purely personal motives in making his attacks. Bethell, he says, hardly attempts to disguise his eagerness to clutch the great seal (Life, ii. 315). So strained did his and Cockburn's relations become with Lord Cranworth that Lord Campbell took the unusual step of addressing the prime minister, and warning him of the dangers to which the government was exposed from the insubordination which prevails among your legal functionaries. Indeed, he wrote, I must frankly tell you that there seems to me a systematic purpose to vilipend the lord chancellor (ibid. ii. 343). Nothing came of this interposition; constant bickerings continued, and matters reached a climax in 1858, when Bethell, then out of office, in a speech of irritating satire, and still worth reading as an admirable example of his style, complained to the House of Commons of the systematic manner in which he had been misrepresented successively by Lord St. Leonards and Lord Campbell (Hansard, 26 Feb. 1858). At this time he was unquestionably looking forward with confidence to becoming chancellor when his party should return to power; he did not hesitate to say so openly, and on Lord Derby's resignation in 1859 his disappointment at having to give way to Lord Campbell was so great that only with difficulty was he induced again to serve as attorney-general. He did consent, however, and strange to say, Lord Campbell tells us, I get on more harmoniously with Bethell than with other members of the government. He had not long to wait for the coveted prize. In the summer of 1861 Lord Campbell died, and Bethell succeeded him under the title of Baron Westbury of Westbury, in the county of Wilts. His bitter tongue had made him many enemies, but no one questioned his right to the office, and he fully satisfied the expectation that he would prove himself one of the chancellors whose names are distinctly associated with the advance of English law.
The judgments which he has left are in many ways unique. Our law reports contain no more perfect examples of precise and lucid statement, of concise reasoning, or of polished English; and no judge has ever striven more persistently than did Lord Westbury to bring every question to the test of principle, and to restrain within due limits what seemed to him the excessive authority of precedents. His habit was to brush aside, or pass by unnoticed, the crowd of cases which had accumulated during the argument, to treat with scant respect judicial opinions which might stand in his way, and to come to his decision by the light of a few elementary rules of law—a phrase which he had a malicious fondness for using when about to reverse Lord Campbell. Following this method, indeed, he frequently decided a great deal more than the facts of the case required, and the authority of his judgments has been thereby much weakened; but where he had a comparatively clear field, as in the subject of domicile, he succeeded in building up a great portion of the existing law (see an estimate of his judgments in Campbell Smith's Writings by the Way, p. 397). With one exception, however, the cases in which he took part have only a legal interest. In 1864 he sat as a member of the judicial committee of the privy council to hear the appeals on the Essays and Reviews cases (Bishop of Salisbury v. Williams and Fendall v. Wilson, 2 Moore P. C., N. S. 375; and see Wilberforce's Life, iii. 6-10), and delivered with keen relish the judgment acquitting the defendants on all the counts—a judgment by which, said the author of a suggested epitaph for Lord Westbury himself, he took away from orthodox members of the church of England their last hope of everlasting damnation...&1
Meanwhile his zeal for law reform remained unabated, though the result fell far short of his plans. He had long recognised the urgency of simplifying the transfer of land, and of carrying out the proposal of a general registry made by the Real Property Commission of 1830. He had been an active member of the commission of 1854, which in 1857 reported in favour of registration of title. When in opposition he had supported the bills introduced by Sir Hugh Cairns, and in 1862, taking up the subject again in the House of Lords, he succeeded in passing ‘An Act to facilitate the proof of title to and the conveyance of real estate.’ It offered two alternative modes of registration: that of an indefeasible title, or that of a merely possessory title to become subsequently indefeasible; but, against Lord Westbury's own convictions, registration was made voluntary. He expected great results from the act, and was slow to recognise its failure. Speaking after it had been in operation for nearly two years, he said: ‘If there is one measure on which I can put my finger with the hope of being hereafter remembered, it will undoubtedly be this bill, when its utility and the relief which it is calculated to give to owners of landed property shall have been fully developed’ (21 April 1864). It proved a failure nevertheless. Few indefeasible titles were registered, and the number decreased every year, while the possessory clauses were not made use of at all; and in 1868 a commission (of which Lord Westbury himself was afterwards made a member, though he took no part in the proceedings) was appointed to consider the causes of its failure. These they found to be the expense and the trouble of registration, which were proved to be greater than in the case of an ordinary sale, and which arose from the necessity imposed by the act of (1) showing a marketable title, (2) defining the boundaries of the property, and (3) registering partial interests (see also Lord Cairns's evidence before the commission of 1878). It would be difficult to say whether the act of 1862, known as Lord Westbury's Act, has had most effect in rousing people to the advantages of simpler modes of transfer or in discrediting by its failure subsequent attempts to accomplish the same end.
Most of the personal incidents which enlivened Lord Westbury's chancellorship have grown dim now, though at the time they were in everybody's mouth. One of them, however, bids fair to be historical. The occasion was the debate in the House of Lords on the sentence passed by Convocation on ‘Essays and Reviews.’ In language of solemn mockery, characterised by Bishop Wilberforce as ‘ribaldry,’ he told the bench of bishops that they had probably incurred the penalties of præmunire; he described a synodical judgment as ‘a well-lubricated set of words¾a sentence so oily and saponaceous that no one can grasp it,’ and he warned them that ‘whenever there is any attempt to carry Convocation beyond its proper limits their best security will be to gather up their garments and flee, and, remembering the pillar of salt, not to cast a look behind’ (15 July 1864). The epithet ‘saponaceous’ was never forgotten.
In 1865 Lord Westbury was forced to retire from office. Circumstances connected with the granting of a pension to a Mr. Edmunds, who, as clerk to the patents (under the lord chancellor), was found to have appropriated public moneys, and certain transactions with reference to appointments in the Leeds Bankruptcy Court, had excited public indignation, and Lord Westbury was freely accused of having unworthily used his position to advance his relatives. The two cases were separately examined by two select committees, who agreed in acquitting him of having acted from unbecoming motives, but found that he had shown himself lax and inattentive to the public interests. A vote of censure, framed in moderate terms, was moved in the House of Commons, and, having been carried in spite of the defence made by the government, Lord Westbury at once announced his resignation, in a speech so full of real grace and dignity, that it almost turned indignation into sympathy. It was remembered that in other cases he had been peculiarly active in correcting abuses in the departments under his charge, and that in using his position to favour his relatives he had been following a long, if an evil, tradition, to break which the public had clamoured for the sacrifice of somebody. (For the facts of the two cases, see the Committee Reports: Edmunds's case, 1865 (294), ix. 1, and (173) xliii. 495; Leeds Bankruptcy Court case, 1865 (397), ix. 413, and (295) xliii. 465, also the Annual Register for 1865; and for different commentaries on the facts, see Law Magazine, xix. 281, and Fraser's Magazine, lxxii. 247). After his fall Lord Westbury retired to a villa which he had purchased in Italy, having resolved, as he said, to quit public life for ever. But he was very soon back again, to sit on appeals in the House of Lords and the Privy Council, and occasionally to take part in political debate. His intellect was still too bright and keen, and his delight too great in the exercise of his power of epigrammatic speech, to have made a life of retirement possible. He took especial interest in the Irish Church Bill, and, while agreeing that the existence of the Irish church was a great evil that needed to be cured by legislation, protested against the bill as a measure of mere destruction and confiscation. The case of St. Ambrose had been often mentioned in the debates, and there was much controversy as to whether in applying the vessels of the church to secular uses he had been guilty of sacrilege: ‘What might be the opinion respecting St. Ambrose,’ said Westbury, ‘in the days when he lived, I do not know; but I must say, with the modern ideas of property, that if St. Ambrose had been brought before me in equity I should not have hesitated to find him guilty of a breach of trust, and to make him refund the property’ (29 June 1869). The Irish Land Act of 1870 was even more repellent to his rigid and lawyer-like ideas of justice. He himself, on the other hand, succeeded in inducing Lord Hatherley to amend the constitution of the judicial committee of the privy council, which had long been unable to deal satisfactorily with its legal business (Judicial Committee Act, 1871); while he found in Lord Selborne's Judicature Act of 1873, carrying out the fusion which he had so long advocated, a measure to which he could give a hearty support.
The last year of his life was one of great labour. By the private act 35 and 36 Vict. c. xlv. he was appointed arbitrator in the winding-up of the affairs of the European Assurance Society, the number of questions involved being so great that, as in the previous case of the Albert Company, of which Earl Cairns had been appointed arbitrator, the ordinary courts proved incapable of settling them. It is the opinion of lawyers who at this time practised before him that he had never shown more clearly his acuteness, his knowledge of men and things, and his power of rapid and sound decision. As he was not bound by rigid rules of law, his decisions are not authoritative, but they are constantly referred to by judges and text-writers as containing a valuable body of principles on several titles of the law of public companies. (Reported by F. S. Reilly, and published 1873.). Till within a few weeks of his death he was engaged at this work, which was left unfinished, and was continued by Lord Romilly. He died at his house in London 20 July 1873, just the day after his old antagonist, Bishop Wilberforce.
Lord Westbury was twice married: (1) in 1825 to Ellinor Mary, eldest daughter of Robert Abraham, by whom he left seven children surviving; and (2) on 25 Jan. 1873 to Eleanor Margaret, third daughter of Henry Tennant, of Cadoxton in Glamorgan.
His character remains a difficult and interesting study, for it was full of contrasts. It combined a love of display with habits of the greatest frugality, and absolute ruthlessness with considerable benevolence of spirit and good nature. Few men have had a greater power of sarcastic speech, and no one has ever used such a power more mercilessly. Delivered in the most urbane manner, and in his mincing, drawling, half-affected tones, and set off by his round, placid face, his sentences fell with blistering effect. Lord Derby once described him as ‘standing up and for upwards of an hour pouring upon the head of a political opponent a continuous stream of vitriolic acid;’ and a judge once appealed to him to be addressed at least as a vertebrate animal. Judges, indeed, he treated at the bar as superciliously as on the woolsack he treated bishops, and Lincoln's Inn is rich in traditions of his audacity. Once, at any rate, his boldness was useful, in his famous protest against Knight Bruce's habit of prejudging cases (see Times, 14 and 15 March, and Punch, 26 March 1859). His manner of speech was the outcome of an overpowering and evidently sincere belief in his own intellectual superiority over other men, and his sleepless ambition to have his superiority acknowledged. In order to attain his end he spared no one, and he was not over-scrupulous of the means which he employed. But his character had another side. To those who did not stand in his way he could be the best of friends, and when the story of his life comes to be told in full there will be much to be said of acts of kindness for which he has hitherto had little credit. One who knew him well has said: ‘A more kind and feeling nature never existed. He did not make many professions, but had the good of his fellow-creatures at heart. He always found time to give advice and help.’ Indeed, to his habit of helping others, and not to any particular ability, he himself modestly ascribed his success: at least he said so in a famous address delivered in 1859 to the Young Men's Christian Institute of Wolverhampton: ‘I am perfectly confident,’ he added, in very odd language, ‘that the principle of mutual benevolence, of a universal desire to do good, derived from Christianity, and which is the first lesson inculcated when you are taught to read the New Testament, is one of the best and most sure modes of securing even temporary success in life.’ He exaggerated his own intellect, no doubt, but in critical keenness and subtlety he certainly had no rival. Without being an orator he had a rare gift of fluent, graceful, and persuasive speech, and a power of luminous exposition which has perhaps never been surpassed. In irony he was once described as ‘a gentleman who possesses such a plain, straightforward, John-Bull-like character of mind: rusticus, abnormis, sapiens, crassaque Minerva;’ but, irony apart, he had a singular faculty, which he exercised when his cause was good, of going straight to the heart of a question, and of bringing out the truth in a single telling sentence. Less able men have had a more durable fame than his will prove to be, for he left few of those definite records of work accomplished which keep a man's memory green. The lawyer's is like the actor's fame. Lord Westbury deserves to be remembered as a zealous and wise reformer, and as the boldest judge who ever sat on the English bench; but he will probably be known rather as the author of audacious sayings, and as the mythical source of innumerable stories.
Law Mag. and Rev. 1865 and 1873;
Times, 21 July 1873;
Law Journal and Solicitors' Journal, 26 July 1873;
Iriving's Annals of our Time; Hansard from 1851 onwards;
Burke's Peerage and Baronetage;
see also Westbury and Wilberforce, in Traill's New Lucian; and
Macmillan's Magazine, xlvii. 469.
Contributor: G. P. M. [George Paul Macdonell]