The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1848-02-08 00:00:00

THE LAW AND THE LAWYERS

A good deal of discussion has taken place in the press
as to the right of Sir F. Kelly to threw up his brief in a
case—Burow v. Denman—on being called on by the crown
to become counsel for the defendant, after he had become
acquainted with the plaintiff's case, through having been
previously retained as his counsel. The following article
from the Daily News on the point is worth perusing :
If the course pursued by Sir Fitzroy Kelly in the action
of Buron v. Denman be in accordance with the prevailing
practice of the Bar, the last sixty years must have wit-
nessed a very melancholy decline of that high sense of
persona hunour and of professional independence which
distinguished and adorned it in times when some-
thing else than briefs and fees were in danger. How
different was Erskine's conduct under circumstances not
very dissimilar—involving at least the same principle !
On Tom Paine's prosecution by the Attorney-General in
1792, for the publication of the second part of the Bights
of Man, Erskine was, and not a little to his own annoy-
ance, retained for the defence. " Erskine," said Lord
Loughborough to him, " you must not take Paine's brief."
" I have been retained, and I will take it, by God ? " was
his noble reply. It was in vain that his friends remon-
strated—that a venal press questioned his loyalty—thati t
was intimated to him, on behalf of the Prince of Wales,
that if he did appear for Paine, he must cease to be the
Prince's Attorney-General--that he was at last threatened
with the old king's displeasure. " I took," writes Erskine
to Howell, " the liberty of claiming from his Majesty the
unquestionable right of the subject to make his defence
by any counsel of his own free choice, if not previously
retained or engaged by office from the crown." With a
spirit the very reverse of Sir Fitzroy Kelly's, Erskine
braved and suffered the threatened consequences. " I
was told in plain terms I was not to defend Pain. I did
defend him, and I did lose my office."
Can any man doubt what Erskine's conduct would have
been if he had been placed in Sir Fitzroy Kelly's situation
in Buron v, Denman? True, no Attorney-General would
have asked him to desert the plaintiff, and to betray his
confidence as Sir Fitzroy Kelly has been asked—and not
in vain. But supose the Crown had presented Erskine

with a retainer—had proposed to him to abandon a client
who for five years had acted on his advice—whose plead-
ings he had settled—whose cause he had argued against
the Crown on demurrer—whose evidence he had advised
on—whose fees he had been deluged with ; suppose, we
repeat, the Admiralty of the last century to have reminded
Erskine of a doubtful oath of office, and to have claimed
his services, what would have been that great advocate's
reply ? Rather than have complied with such a demand,
he would have torn the silk gown from his back, and have
donned with pleasure the stuff again ; he would have re-
nounced the post of Queen's counsel, and have been con-
tent to have sat, admired, and respected, in the utter Bar,
for the remainder of his career. And such, too, we are
persuaded, would have been the mode in which more than
one of the present batch of Queen's counsel, vastly in-
&rim- thnuth they all may be in sensibility and chivalrous

!ULM. 411 V
feeling to Erskine, would have escaped from the dilemma
into which Sir Fitzroy Kelly's excessive tenderness of
conscience and regard for his " oath of office " have pre-

tor rreuerich
comprehensionm of professional honour, con-
duct more robust and becoming. We utterly disbelieve
that the leaders of any one of our circuits would, without
a vigourous resistance, have responded to the Admiralty's
retainer. For the credit of the Bar, there is, we are con-
vinced, but one man for whom, under such circum-
stances, a retainer would have been offered and a brief
poirtea t
manlyed . we claim
sent ;to him it has been offered—by him it has been
accepted. _ _

'hesiger's

Ffrst, then. we are entitled to assert that even if this
oath of Queen's counsel left Sir Fitzroy Kelly no alterna-
tive but acceptance of the Admiralty's retainer or resig-
nation of the honour of being one of her Majesty's counsel,
the acceptance involving a principle so destructive of per-
sonal morality and professional confidence, that resigna-
tion became a duty from which no honourable man at the
Bar ought to have shrunk. The oath which he pleads did
not bind him to life-long service of the Crown ; and when-
ever service in silk becomes incompatible with honour
and honesty, it ought to be abandoned for integrity and
independence in stuff.