Death of Birkenhead

To "The Galloper" who tamed wild Irishmen, to scathing "F. E.," master of acrid but urbane debate in both Houses of Parliament, to Great Britain's youngest Lord Chancellor, to the great and frankly snobbish Earl of Birkenhead whose aristocracy was that of "first class brains," came last week a strangely gentle Death.

Propped up in bed a short while before his final, sudden relapse into coma, Lord Birkenhead scanned London papers, learned that he was "now almost recovered from his long illness." He died believing he would soon be well. His doctors, who had authorized the too optimistic early bulletin, issued a final one, brief, explicit:

"The Earl of Birkenhead passed peacefully away at 11:15 this morning. There had been a further increase in the pneumonic infection, and the heart muscles, feeling the effect of this, dilated and failed."

Black-Robed Benchers. Awesomely, like so many legal acolytes of Death, six black-robed benchers of Gray's Inn came for the great jurist's body. He should not lie in state at his house in dignified Belgravia but among the cloistered inns of court, snug in the chapel of his own Gray's Inn.

Recognizing that the Earl belonged first to Law, Margaret Countess of Birkenhead and her children stood aside. "He was a truly wonderful man," said Prime Minister James Ramsay MacDonald, often target of the Earl's most scathing shafts. "To disagree with Lord Birkenhead in no way diminished the extraordinary respect which one had to pay to his powers."

"F. E." Not every Briton knows that Lord Birkenhead's grandfather was first a miner, next a fisticuffer who fought his way to the heavyweight championship of Yorkshire, finally a zealous house agent in grimy Birkenhead--just across the River Mersey from bustling Liverpool.

This fisticuffer's son went soldiering when a sprig of 17, wangled his way up in the hard-boiled Indian Service of Empress Victoria from Private to Sergeant Major, returned to help his father with house agenting, but drifted into Law. Thus when Frederick Edwin Smith was born at Birkenhead, on July 12, 1872, he inherited by right a wildcat's pugnacity and brawn, an old campaigner's slyness, a lawyer's bent.

As a schoolboy "Freddy" was incurably lazy, but too poor, too brilliant to loaf. Luxurious Oxford (which costs rich students $3,000 and more a year) beckoned. To Oxford, after seizing scholarship after scholarship by angry force of intellect, went poor Freddy. He stayed there nine years, squeezed dry every scholastic sinecure, was called to the Bar in 1899, and, as a young barrister of acknowledged, unparalleled brilliance, moved upon London.

In 1901 when only 29 Lawyer Smith, now "F. E." to every potent barrister in England, pocketed close to $200,000 as his outrageous fee for counseling British tobacco interests how to deal with America's then rampant tobacco tycoon, James B. Duke. To celebrate he took a bride from Oxford. She, Margaret Eleanor Furneaux, dutiful daughter of a canny old Latin Professor, had obeyed her father when he told her to put off marrying Freddy some years earlier, "because one meets so many rising young men who never seem to rise."

With his wise wife, "F. E." set out to storm Parliament. When some hecklers shied pebbles at him, later became fascinated and stayed to cheer, his last words to the enthusiastic mob were these: "Now you can crawl back under your stones. Good night!" After several quite understandable defeats truculent Candidate Smith went up to Parliament in 1906.

Describing his astounding maiden speech Winston Churchill (friend of 25 years) has written that "for the space of an hour 'F. E.' lisped and purred an unceasing series of blistering, glittering, carefully studied and audaciously flung taunts and insults in the teeth of the triumphant majority"--with the result that the late Lord Balfour, then Britain's No. 1 Parliamentarian, crossed the House publicly to congratulate Smith M. P., and he was "made."

Gallop to Woolsack. Battling Protestant that he was, "F. E." fought the granting of "home rule" to Ireland before the War--for this would have meant rule of Irish Protestants (Ulstermen) by Irish Catholics. When violence seemed the only way to head off home rule, the prizefighter's grandson went to Ireland as chief aide to Sir Edward Carson, dashed about fomenting shenanigans at such a rate that admiring Irish nicknamed him "The Galloper."

Early in the War "F. E." jumped from Ireland to France (as so many hotheads did), won mention in despatches and the rank of Major in the King's Own Oxfordshire Hussars, was recalled to London by Lord Kitchener to advise the Government in ticklish court-martial cases, presently became Chief Censor.

Rolling, puffing his famous long cigar (he did not chew on it), Censor Smith graduated to Solicitor-General, then Attorney-General, becoming meanwhile Sir Frederick Smith, Bart. One evening, after the election of 1918, he was asked by Prime Minister David Lloyd George to make the most momentous decision of his life, given only until morning to decide: Would he or would he not accept the supreme judicial office of Lord High Chancellor, sit upon the sacred woolsack?

Acceptance meant retirement from politics, burning his ambition to become Prime Minister. The Galloper took the woolsack (a large red cloth cushion stuffed with wool), sat on it as a Lord Chancellor must, rested his foot on it now and then as a Lord Chancellor must not. In 1919 he became Baron Birkenhead, in 1921 accepted a Viscountcy commemorating his wife's maiden name (Furneaux), and in 1922 was created Earl of Birkenhead with an arrogant-humorous armorial motto of his own devising Faber Meae Fortunae: "[I'm] the Smith of my own Fortune."

Arbiter & Wit. At about this time Lord Birkenhead delivered his memorable knife thrust at the late Viscount Younger of Leckie (then Sir George Younger) who fancied himself for the Prime Ministry. "Since the day when the proverbial frog swelled itself up in rivalry with the bull until it burst," he said in part, "no frog ever has been in such grave physical danger as Sir George Younger." Of the Bonar Law Cabinet in 1923 Lord Birkenhead said: "They remind me of the Duke of Wellington's observation upon his generals: 'I don't know whether they will frighten the enemy, but, by God, they frighten me! ' "

This sort of wit had made Lord Birken head a social lion, furthered his progress to the rank of No. i British arbiter of old brandy, sped him to the bridge tables of tycoons whose money he took by excellence in play.

Two legal monuments will survive the great Lord Chancellor: i) his masterly modernization of a great body of archaic statutes, enacted as the "Law of Property Act of 1922" ; 2) the Constitution of the Irish Free State which he worked out with Michael Collins and to which he contributed the ingenious "Oath of Fealty," having discovered that Irish Parliamen tarians would choke rather than swear an oath of allegiance to George V. Matter of fact fealty implies a lower grovel than allegiance.

Master of India & Tycoon. To the great grief of political rivals, who had thought Lord Birkenhead would quietly retire like most Lord Chancellors when his term expired, he rushed back to stumping for the Conservative Party. Grateful for such dynamic aid, Prime Minister Stanley Baldwin, lazy, muddling, made him Secretary of State for India in the last Conservative Cabinet (TIME, Nov. 10, 1924 et seq.).

Never did a Government stand in such need of "first class brains"; but the Earl was never worse cast than in his new role. To Birkenhead's cold, precise, savage legal mind Indian statesmen with their loose, mystic reasoning from aspiration and intuition were mere weaklings, chuckleheads, loons. By his arrogance to the meekest people on earth he sowed resentment wide and deep, possibly is most to blame for the present fierce sprouting of St. Gandhi's movement in more virulent form than ever before. (The Earl himself blamed James Ramsay MacDonald's "wishy-washy milk-and-mushiness!") He resigned as Secretary of State for India some months before the Baldwin Cabinet's overthrow (TIME, Oct. 29, 1928), excusing himself for quitting the sinking Conservative ship by brazenly asserting that his scale of luxurious living demanded more than a Cabinet Minister's pay (-L-5,000: $24,300).

The pension of a Lord Chancellor is -L-5,000. Custom decrees that a onetime Woolsacker shall not accept it if he has other income. Not so Birkenhead. He argued with merciless logic that he had given up a legal practice netting $200,000 a year to serve the State. Coolly demanding his pension, he added $50,000 to his income the first year by journalistic feature writing, took on a series of directorships in giant corporations said to net him $10,000 a year each. Most im- portant was-his Board Chairmanship of Greater London and Counties Trust, Ltd. Because his stockholders included "powerful American interests," because some of the legislation under which greater London and Counties Trust, Ltd. flourished had been enacted under his Lord Chancellorship, there were cries of "Scandal!'' but Tycoon Birkenhead brazened through. He lived and died by Disraeli's maxim which he liked to quote: If you would govern men you must be superior to them or at least despise them. Charming though he could be, true friend though he again and again proved himself, he could say in 1916 as Attorney-General, after his prosecution of Sir Roger Casement for high treason: "Nothing ever gave me greater delight than the execution of Casement." To the great jurist, chief prosecutor of the Crown, this hanging was only a big job brilliantly well done.

Ashes. By the late Earl's express command his body was cremated.

The new Earl, 22, Eton and Christ Church College, Oxford, where he is still a student, is two inches shorter than his tall father, thinner, quiet. He continues the traditional Birkenhead carnation in the right lapel.

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