HC Deb 08 February 1848 vol 96 cc287-9

begged to inquire of the Attorney General what decision had been come to relative to the employment of Queen's Counsel?


believed the hon. Member alluded to the petition which had been presented in the case of "Buron .v. Denman," and he was glad the hon. Member had given him an opportunity of correcting a misapprehension which existed somewhat to the prejudice of his hon. and learned Friend (Sir F. Kelly), and did some injustice to himself. The action was commenced long before the period at which he (the Attorney General) had the honour of holding his present office; and on the 5th June, 1844, Sir F. Kelly argued a demurrer on behalf of the present plaintiff. No step was taken from that period until November, 1846, when a motion was made in the Court of Exchequer by Mr. Matthew D. Hill, Sir F. Kelly's senior. When the case was about to be tried a short time back, he was informed by the counsel for the Admiralty that Sir F. Kelly was in the case, and that directions had been given that a brief should be handed to him; and upon an application being made to him, he advised the Admiralty not to release Sir F. Kelly from the advocacy of the case on the part of the Crown. That course had led to the presentation of a petition, and certain remarks in the newspapers, on seeing which he had felt it to be his duty to write to Sir F. Kelly on the subject:— From what I know of the circumstances, I believe that you are free from blame in this mat- ter; but I shall he glad to receive any communication you may have to make upon this subject, and have only to add, that I am willing, upon the part of the Crown, to release you from your engagement to the Crown, should you think that under the circumstances you ought to hold a brief for the plaintiff, or to decline to act for either party. Sir F. Kelly replied as follows:— Temple, Jan. 21, 1848. My dear Attorney General—I am favoured with your letter on the subject of the actions by Buron and others against Captain Denman. The power of the Crown to require the services of the Queen's counsel at all times is not disputed; and as in this country every Queen's counsel is known to be under an oath to plead for the Crown at its pleasure, I conceive that he accepts every retainer from a subject under as plainly implied a reservation that he may be withdrawn by the Crown, as that he may be incapacitated by sickness or death. This power may indeed he exercised so as to do injustice to individual suitors; and the question now is, whether it has been so exercised in this particular case. In the first place, I must exonerate you from any responsibility. Mr. Hay's petition seems to imply that I had acted as counsel for the plaintiffs except during a short interval, until the month of May last, and that you then required my services. The fact is, that I have not so acted in any way since the month of June, 1845; and that in the following month of July (1845), having been appointed Soliciter General, I was almost immediately called upon to advise and assist the Ministers of the Crown upon certain measures (which became law under the Act of 8th and 9th of Victoria, cap. 92) involving the consideration of the whole system of the slave trade on the coast of Africa, of the conduct of our naval commanders there, and of our relations with the Court of Brazil. It was obvious that I could not, after communications of this nature, and upon these subjects, with the Ministers of the Crown, assist the plaintiffs in these causes as their leading counsel, after the defence was taken up by the Government. It was, probably, this consideration that induced the then Attorney General to require my services, and at least restrain me from appearing against the Crown upon the trial. You, as Attorney General, when the causes seemed about to be tried a few months ago, merely abstained from interfering with the decision of your predecessor. And as far as regards the mere loss of my assistance, there could be no hardship or injustice, for the whole bar was open to the plaintiffs for the selection of a leading counsel to supply my place. But it is urged that after having been consulted and trusted with the case by the plaintiffs, I at least ought not to appear as counsel against them; and certainly if I possessed a knowledge of any facts imparted to me by the plaintiffs, which I might in a moment of inadvertence disclose, or the consciousness of which could in any way affect my conduct in the cause, I should feel it my duty to request your authority, not indeed to act as counsel for the plaintiffs, for my communications with the Crown while I was Solicitor General render that impossible, but to retire from the case altogether. And as you allude to imputations in the newspapers, or elsewhere, of undue motives, I must be permitted to observe that if any counsel, circumstanced as I am, could be influenced by personal considerations at all, he would do his best to obtain the license of the Crown to act as counsel for the plaintiffs. If actuated by the love of fame, he would seek to be the leading counsel for the subject (generally the popular party) rather than third or fourth counsel for the Crown. If by the love of money, his interest would equally point the same way; for, as you and I well know, the fees paid by the Crown are always on a far lower scale than those of individual suitors. In almost the last case in which I was opposed to the Crown, my fees were more than nine times the amount of the then Solicitor General's; and in these very cases, they would have been four or five times the amount of even your's as leading counsel for the Crown. But whatever may be my own inclinations, or my interest, I have no grounds upon which I can claim indulgence, for having only held some consultations upon the pleadings many years ago, and argued a demurrer, I think early in 1845, I have not the slightest recollection of a single fact communicated to me on the part of the plaintiffs upon which I can found a claim to be excused from appearing as counsel for the Crown. Whether from the plaintiffs being foreigners, and the importance of all that belongs to our legal institutions being placed beyond suspicion among foreign nations, you may think it right to release me from appearing upon the trial for the Crown, is a question entirely for your own consideration, upon which I do not offer an opinion.—I remain, my dear Attorney General, very truly yours, FITZROY KELLY. On receipt of the letter he had signified the intention of the Crown to the Admiralty, and a communication had been made to the noble Lord at the head of that Board, that the Crown would not insist on the services of Sir F. Kelly in the case of "Buron v. Denman."

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