§ MR. FAWCETT, in rising to call attention to the grave evils which may result to the public from the possibility which had been shown to exist that the Law Officers of the Crown may be retained as Counsel for the Defendants in such a ease as "Regina v. Gurney and others," said, there were one or two points connected with the subject which he regarded as of the greatest importance. It was not his intention to controvert the decision of the other night, which, he believed, was due mainly to the speech of the First Minister of the Crown, the effect of which must for ever dispel the impression that existed out-of-doors, that the votes of Members were not liable to be influenced by speeches delivered in the House. The Attorney General admitted on Thursday evening that in some public cases the Government ought to appear as a prosecutor, but he added that those cases were exceptional; and he went on to observe that whether the Government should appear as a prosecutor or not was a question which was in the main to be decided by two con- 1195 siderations. The Government must, the hon. and learned Gentleman contended, in the first place, pay regard to the importance of the case, and, secondly, to the probability or the improbability of obtaining a conviction. Now, with respect to the importance of the case, that was a point on which most men were competent to form an opinion; but as far as the probability or improbability of a conviction was concerned, that was a question which, as the Attorney General had most truly said, could not be determined by laymen, but by competent legal authorities such as the Law Officers of the Crown. That being so, what was the conclusion to be drawn from the doctrines which the hon. and learned Gentleman had laid down; it was that beyond all dispute the advice which the Government ought to be able to derive from the Law Officers of the Crown they might at any moment be deprived of by the circumstance that those Law Officers had been retained for the defence; indeed, that very thing had occurred in the present instance. The Government had been deprived of the able assistance of the Solicitor General, and it would seem to be owing to accident that they had not lost the services of the Attorney General as well; so that, in a matter vitally affecting the public interests, they might have been left without the advice of either of their two Law Officers. That was a danger which, in his opinion, something ought to be done to obviate. Nothing was further from his intention than to censure in the slightest degree the conduct in the matter of his hon. and learned Friend (the Solicitor General). He felt satisfied that he had done nothing more than that which had been done by other Solicitors General before him, and that he had acted entirely in consonance with the practice which now prevailed at the Bar. He alluded to his position with regard to the case of which he was speaking, simply because it afforded a pertinent illustration of our present system as it related to public prosecutions. As a layman, it would be presumptuous in him to say anything as to the wisdom and policy of appointing a public prosecutor; but it must, he thought, be evident that the danger which he had indicated, and the partial danger which had been incurred in the present instance, pointed to the necessity of having something done to prevent a recurrence of 1196 such a state of things as that by which public attention was now engaged. He was, he thought, expressing the opinion, not merely of that House, but almost of the whole nation, when he said that the public were most deeply anxious that the trial to which his observations referred should be fair and complete; and it would be a consummation not only unsatisfactory to the country, but discreditable to our system of jurisprudence, that the trial should fall through, a result of which there appeared to be imminent danger. The impression, he might add, seemed to prevail—and that impression had been fostered by some speeches which had been made from the Treasury Bench—that he and others who had taken an interest in the matter had done so on behalf of private shareholders. Now, that was an imputation which he begged altogether to repudiate. He had interested himself in the matter because he believed it to be of the utmost importance that public justice should be vindicated. He cared nothing about the shareholders. They could look after themselves; but he thought it of the greatest moment that persons who were accused of a grave offence, and in whose case a reasonable suspicion of guilt existed, should not be allowed to escape merely because of the inability or otherwise of a private individual to carry on the prosecution. In conclusion, he begged to say that he did not desire to move the Resolution on the subject which stood on the Paper in his name.
THE SOLICITOR GENERALsaid, it was with some reluctance that he was about to break the silence which he had hitherto observed on the subject under the consideration of the House, because he thought it was, as a general rule, unwise that a lawyer should discuss in that House matters in which he happened to be professionally engaged. Since he had the honour of a seat in Parliament he had never done so, and he should not have risen to say a single word that evening but for the persistent conduct with regard to the case in question, which, from some motive or another which he was unable to divine, the hon. Member for Brighton (Mr. Fawcett) had pursued. His hon. Friend must excuse him for telling him in plain, but he hoped not offensive, language, that it would be just as well that he should, before he interfered in matters of the 1197 kind, make himself acquainted with the facts of the case and the first elements of the subject with which he was dealing; because it seemed to him that the hon. Gentleman, for want of that knowledge, had wasted the time of the House, and imposed on some of its Members a good deal of unnecessary trouble. It was one of the first rules of the profession to which he had the honour to belong, which, although like other rules—like those of the House of Commons, for instance—they might not be at first sight intelligible to those who did not happen to live under them, yet were in reality the expression of common sense and good feeling and honour, and were necessary to regulate those singularly complicated and delicate relations which existed between the advocate and the client—it was one of the first rules of that profession that a man, whether guilty or innocent, whether the victim of cruel and unjust prejudice or not, had an absolute and indefeasible right to retain the services of the advocate whom he might think qualified to represent him, and to see that, whatever his merits or demerits, justice was done him in the Law Courts of the country. It was because the Bar had not the right to make selections and to form their own opinions on cases that the profession he belonged to was the profession of a gentleman, and one which a man of honour could practise. If the Bar were to identify themselves with their clients and to exercise their own selection and judgment in respect to the cases submitted to them, they would be open to the base and hateful charge of selling their convictions and opinions, which no person with a knowledge of the facts could venture to impute to them now. He confessed that he was speaking with some warmth; but he trusted that the House would excuse him, because the hon. Gentleman had forgotten, or was unaware of one of the plainest and simplest rules which guided the profession he belonged to. In respect to the particular case now before the House, if, after the years they had acted together, the hon. Gentleman had done him the honour to communicate with him, or if he had taken the pains to understand the plainest elements of the case, he would have found that nothing had been done in this matter which was not consistent with common sense, and with the strictest rules of etiquette and honour.
§ MR. FAWCETTsaid, he wished to be allowed to say one word.
§ MR. SPEAKERsaid, that the hon. Member had no right to interrupt unless with the permission of the Solicitor General.
THE SOLICITOR GENERALsaid, that in September, 1866, he was engaged, as any counsel might have been, to defend Messrs. Gurney, two years and two months before he accepted the office of Solicitor General, and Sir John Karslake was also retained some ten days later, five or six weeks before becoming Solicitor General in the late Administration. They were both engaged by general retainers to defend the Messrs. Gurney in any proceedings in which the Messrs. Gurney might be engaged. A general retainer simply gave the person who delivered it the right to the refusal of the services of the barrister to whom it was delivered, and it gave the barrister no right to force his services on the person retaining him. Some time afterwards, when the Messrs. Gurney got into peril and the matter came before a legal tribunal, the ordinary retainer to defend them was delivered to him. Everyone who delivered an ordinary retainer to a Queen's Counsel knew that he delivered it subject to the right of the Crown to require the Queen's Counsel to appear for the Crown in the particular matter. When, therefore, the ordinary retainer was delivered to him he took the proper precaution that the Government should be consulted, and he held the license of the Queen, under the sign manual, to defend the Messrs. Gurney in the present case. The right of refusal had many times been exercised. On one occasion his learned friend, Mr. Giffard, was retained to defend a man who, in a case before Lord Penzance, was clearly proved to have been guilty of forging a will; but the Crown thought Mr. Giffard's services were of great importance, and refused them to that man, telling him that there were plenty of other Queen's Counsel whom he could employ to defend him at the Old Bailey. Very recently the Attorney General and himself thought it their duty to withhold from a gentleman who wished for the services of the hon. and learned Member for Richmond (Sir Roundell Palmer), permission to have them, and for the plain reason that it was a matter in which the Crown was concerned, and the hon. and learned Member, 1199 as formerly Law Officer of the Crown, had cognizance of the case. So, too, in the case of Miss Shedden, in the House of Lords, the Attorney General having been formerly her counsel, and knowing her affairs, yet, as by statute he was necessarily a party against her in her appeal, had abstained, as every honourable man in his position would, from appearing in the case at all, though it was conducted in his name, and had left it to be practically conducted by the hon. and learned Member for King's Lynn. These were matters which everyone perfectly understood, and he could not comprehend what the hon. Member for Brighton (Mr. Fawcett) would have. Did he mean to say that a barrister ought to refrain from giving his services to a private individual, because he might at some future time, by some personal or political accident, happen to be a Law Officer of the Crown? Or did the hon. Member suppose that the barrister would, on being appointed a Law Officer, immediately go over to the Government with all the information he had acquired in the sacred character of counsel to a private individual? Or did the hon. Gentleman mean to say those barristers only should be selected as Law Officers of the Crown whom no persons would engage in any important case, and that the confidence of the Crown was to be extended only to those whom nobody else would extend confidence to? This question had nothing to do with that of a public prosecutor; and he might say that whenever a public prosecutor should be appointed, it would not be the Attorney General or the Solicitor General who would fill the Office, for they had too much to do already. He repeated that he did not know what motives induced the hon. Member to persist in the course he had pursued, and he would not stop to inquire into them. There were some persons who found a vulgar pleasure in carping at a great profession to which they did not belong, and which they did not understand, but which had in its day done great things for the liberties of Englishmen, and which contained within itself men as pure, as high-principled, and as honourable, as any who carped at and detracted from it. He did not know whether the hon. Gentleman wished to teach him his duty, but he would say that he did not desire to be taught by him, and when he did desire it he would let him know and 1200 would attend his lectures. In the meantime, he hoped the hon. Gentleman would make himself acquainted with the elements of the subject he ventured to discuss. He did not know whether he intended to cast a censure on the general conduct of the profession. If he did it was because he did not understand it. If, on the other hand, the hon. Gentleman brought forward this matter in order to concentrate public attention on a trial which was almost imminent, and which involved the fortunes and characters of many individuals, he was acting most unjustly and most cruelly. Outside the House he (the Solicitor General) was the paid advocate of the Messrs. Gurney, and, therefore, inside the House he would not say one single word which might convey his opinion about the case; but this he would say, that whatever their merits might be—whether guilty or innocent of the matter now specifically laid to their charge—it would be well for the hon. Gentleman —it would be well for himself, it would be well for most of us—if our lives could show instances of such noble and magnanimous disinterestedness and self-sacrifice as these defendants had displayed.
§ MR. FAWCETTbegged to be allowed to explain. He had been most careful not to say a single syllable of censure against the Solicitor General. He said he had simply done what every Solicitor General had done before him, and what he was bound to do by the rules of his profession. He never said a word against the legal profession, for which he had been himself preparing, and for which he had every sympathy. He had called attention to the matter, not to show what his opinion was with reference to the conduct of any person, but with the simple view of exposing what he considered a defect in our system of jurisprudence.
§ Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.