KELLY, Fitzroy Edward (1796-1880), of 8 Connaught Place, London; 2 King’s Bench, Temple, London and The Chauntry, Ipswich, Suffolk

Kelly was a distinguished lawyer and judge whose parliamentary career was characterised by his willingness to cut across traditional party boundaries in an attempt to achieve legal and electoral reform.1 Public men of Ipswich and East Suffolk (1875), 71. Born in London, he was the second son of royal navy Captain Robert Hawke Kelly, who died while serving in Madras, when Kelly was still a child.2R. Greene, ‘Kelly, Isabella’, rev. P. Perkins, Oxf. DNB, www.oxforddnb.com. After a private education at a school in Chelsea, Kelly entered the office of the City attorney Robert Brutton, an opportunity secured for him by his mother Isabella, a successful author of Gothic fiction. Encouraged to read for the bar by Brutton, Kelly was admitted to Lincoln’s Inn in 1818 and practised as a special pleader before he was called in 1824.3C. J. W. Allen, ‘Kelly, Sir Fitzroy Edward’, Oxf.DNB, www.oxforddnb.com.

Kelly quickly established himself as a talented lawyer with a reputation for making complex cases intelligible to juries. He practised on the home circuit for a year before joining the Norfolk circuit in 1826. He meanwhile established his own practice in London, specialising in mercantile law, and became standing counsel for the East India Company and the Bank of England. In 1834 he was made king’s counsel and was elected a bencher of his inn the following year.4 The Times, 20 Sept. 1880. He was also involved in a number of high profile criminal cases. In 1840 he delivered the closing address in the successful defence of the Chartist John Frost, who had been charged with treason following his role in the Newport uprising.5Ibid., 2, 3, 4, 6, 8 Jan. 1840. In 1845, in a case that captured the public imagination, he defended John Tawell, who had been charged with the murder of his mistress, Sarah Hart. Kelly’s implausible argument that Hart had been poisoned by eating the pips of apples unsurprisingly failed to convince the jury, and thereafter he was often referred to as ‘Apple-pip’ Kelly.6Ibid., 15 Mar. 1845. Despite the unflattering sobriquet, he continued to enjoy success at the bar, at the height of his practice earning over £25,000 a year.7Ibid., 20 Sept. 1880.

Kelly’s early attempts to establish a foothold in Parliament were protracted and marked by controversy. After an unsuccessful candidacy for the cinque port of Hythe in 1830, where he had been brought forward by local ratepayers protesting against not having the vote, he stood as a Conservative for the notoriously corrupt borough of Ipswich, home to his Chauntry estates, at the 1832 general election.8 HP Commons, 1820-1832, iii. 308-9. In an extremely bitter contest, Kelly singled out his Reformer opponent Rigby Wason for particular criticism, condemning his support for free trade in corn, but he was heavily defeated in fourth place.9 Bury and Norwich Post, 12 Dec. 1832. Kelly topped the poll at the 1835 general election, when he called for the malt tax to be replaced by the property tax and, reflecting his moderate principles, suggested that Dissenters should be relieved from paying church rates.10 Ipswich Journal, 10 Jan. 1835; Parliamentary test book (1835), 91. Bribery, however, had been widespread, with electors offered up to £20 for their votes, and after a perfunctory first session, in which he voted with Peel on the speakership, 19 Feb. 1835, the address, 26 Feb. 1835, and against Irish church appropriation, 2 Apr. 1835, he was unseated on petition, 10 June 1835.11PP 1835 (286), ix. 87. The verdict was not the end of the matter. Appearing before the election committee, Kelly had stated that he did not know John Pilgrim, an attorney’s clerk, who had been implicated in the bribery, a statement which Wason claimed was a deliberate lie.12I. Loveland, Political libels: a comparative study (2000), 26. Kelly challenged Wason to a duel, which the latter declined, but at the 1837 general election the two men resumed hostilities, each accusing the other of lying, with Kelly declaring at a rancorous nomination that Wason had indulged ‘in calumnies to an extent which I never knew equalled by word of mouth, in writing, or in books of print’, before turning on the mayor for failing to control the proceedings.13 Ipswich Journal, 29 July 1837. Although Kelly was defeated in third place, the contest was again marked by sustained corruption, and he was subsequently seated on petition, 26 Feb. 1838.14PP 1837-38 (173), x. 356.

Kelly’s legal background became evident in his early contributions to debate. A frequent speaker, he displayed a ‘tendency to platitude and to excessive verbiage’, but his grasp of the intricacies of the law, along with his desire to ‘proffer explanation to the utmost adjective and comma’, gave him an air of authority in the Commons chamber.15 Public men of Ipswich and East Suffolk (1875), 75. Believing that MPs were ‘generally ignorant’ of the law, he suggested that judges be appointed to election committees, but was opposed by the attorney-general, 10 May 1838. On the controversial issue of parliamentary privilege precipitated by Stockdale v. Hansard, he was unequivocal in his conviction that ‘no officer, attorney, counsel, or judge, could be guilty of a breach of the privileges of [the] House by merely discharging their duties’, 13 Feb. 1840. His most personal crusade was to extend the abolition of the death penalty. He asserted that its removal would not lead to an increase in crime, but his bill, which proposed to remove the death penalty from fourteen crimes, excluding murder, was defeated at its third reading by 78 votes to 51, 29 July 1840. He reintroduced the bill the following year, 9 Feb. 1841, but it again came to nothing. Although the abolition of the death penalty bill revealed his liberal instincts, Kelly generally sided with the Conservative opposition in the division lobby. He opposed the Maynooth grant, 23 June 1840, and backed Peel’s motion of no confidence in the Whig government, 4 June 1841. At the 1841 general election he offered an outspoken critique of the new poor law and called for guardians to be allowed to offer outdoor relief to prevent the separation of families.16 Ipswich Journal, 26 June 1841. His standing in the borough, however, had been undermined by his public feud with Wason, while his liberal inclinations had upset a significant portion of the local Conservative party. Following another hostile contest, he was defeated in third place.17 Public men, 71-4; Bury and Norwich Post, 7 July 1841.

Kelly returned to the Commons in March 1843 after a narrow victory at the Cambridge by-election, where he presented himself as a zealous supporter of the established church and an ‘uncompromising opponent of the Anti-Corn Law League’.18 Morning Post, 20 Mar. 1843. There was a petition against his return but the election committee declared him duly elected: PP 1843 (316), vi. 7-10. An irregular attender following his return, he voted against opposition motions to consider the state of Ireland, 12 July 1843, 23 Feb. 1844, and opposed the repeal of the corn laws, 15 May 1843. His main focus was his bill to allow appeals in criminal cases by assimilating the practice of criminal law to that of civil law, but after being given leave to introduce the proposed legislation, 30 May 1844, it came to nothing. His legal expertise, though, was recognised in June 1845 when Peel appointed him solicitor-general. At the ensuing by-election, at which he was opposed by a Liberal, he explained that he now supported the Maynooth grant, as it was ‘not a religious question, but one of civil policy’, and denounced the Whigs for doing ‘nothing’ in government. Significantly, after having previously voted against corn law repeal, he now, somewhat cryptically, stated that ‘I do not say that I consider the laws under which the importation of corn is regulated are for ever unchangeable. ... [I]t is quite impossible not to see that changes must take place’.19 Morning Chronicle, 15 July 1845. Four years later, Kelly recalled to Disraeli and Lord Edward Stanley that upon his appointment as solicitor-general, Peel had warned him not to pledge too strongly on the corn laws, leaving Kelly to believe that the premier had already decided on repeal.20A. Hawkins, The forgotten prime minister: the 14th earl of Derby (2007), i. 298; Disraeli, Derby and the Conservative party: the political journals of Lord Stanley, 1849-1869, ed. J. Vincent (1978), 25-6. Successfully re-elected, and knighted the following August, Kelly had only a brief tenure as solicitor-general, during which he promoted a small debts bill, 18 and 22 July 1845, and backed greater regulation of joint stock companies, 23 Apr. 1846. He voted for corn law repeal at the critical second and third readings, 27 Mar. 1846, 15 May 1846, and divided with a beleaguered Peel against the factory bill, 22 May 1846, and for the Irish coercion bill, 25 June 1846.

With his support for repeal losing him the support of local Conservatives, Kelly declined to stand again for Cambridge at the 1847 general election, and instead offered for Lyme Regis as ‘an independent man, upon independent principles’.21 Daily News, 14 June 1847; Morning Chronicle, 31 July 1847. He called for a reform of the income tax and stressed his attachment to Protestant principles, but was narrowly defeated by three votes.22Ibid. Thereafter he devoted his energies to his legal practice, until his re-appointment by Derby as solicitor-general in February 1852, when he joined a cabinet which he rather unflatteringly described as ‘at least equal to the average’.23 Journals of Lord Stanley, 70. A vacancy at Harwich in April offered a route back to the Commons, but shortly after announcing his candidacy he accepted a requisition to stand at Suffolk East. Kelly nevertheless put himself forward at Harwich, though at the nomination he conceded that ‘his connection with the borough will be a brief one’.24 Daily News, 12 Apr. 1852; Morning Chronicle, 13 Apr. 1852.

Returned unopposed, Kelly took the Chiltern Hundreds, 29 Apr. 1852, before coming forward for Suffolk East, home to his Chauntry estates. Addressing the electors, he regretted his vote for corn law repeal, declaring that the measure had proved to be ‘completely destructive of the best interests of the country’, and, returning to his original position on the matter, backed the abolition of the Maynooth grant.25 The Times, 16, 22 Apr. 1852. He was elected unopposed after his Liberal opponent withdrew at the nomination.26Ibid., 3 May 1852. He repeated this result at July’s general election, when, in a noticeable strengthening of rhetoric that was, according to The Times, in contrast to Disraeli’s more measured position, he declared that free trade was a ‘fatal march of unholy legislation’.27Ibid., 15 July 1852; Daily News, 15 July 1852. He duly voted against Villiers’ motion praising corn law repeal, and abstained from Palmerston’s subsequent motion in favour of free trade, 26 Nov. 1852. He was in the minority for Disraeli’s budget, 16 Dec. 1852.

After another brief and uneventful spell as solicitor-general ended with the fall of Derby’s government in December 1852, Kelly turned his attention to electoral reform. Working with Disraeli and Stanley, he prepared a bill for the prevention of bribery, the central feature of which was his proposal to appoint an election officer, through whom all the candidates’ expenses would be paid.28 Journals of Lord Stanley, 116. Kelly successfully moved for leave to bring in this bill, 16 Feb. 1854, but the appointment of election officers was subsequently subsumed into Lord John Russell’s bribery at elections bill, 10 July 1854, and successfully adopted as a clause in committee, 14 July 1854. However, by the time the bill received royal assent as the Corrupt Practices Prevention Act (17 & 18 Vict. c. 102), the clause sanctioned only the appointment of an ‘election auditor’ who lacked the sole authority to manage the candidates’ expenses that Kelly had originally envisaged.29 Public general statutes 1854 (1855), 219. He later lamented that his proposals had been ‘so mutilated in their passage’ that the Act ‘almost entirely failed’.30 Hansard, 31 Jan. 1860, vol. 156, c. 386. Kelly also began to formulate a plan for a small extension of the franchise, and while dining with Disraeli and Stanley in March 1853, revealed his proposal to admit into the franchise professionals and university graduates.31 Journals of Lord Stanley, 103; Benjamin Disraeli letters: 1852-56 (1997), ed. M.G. Wiebe, M.S. Miller and A.P. Robson, vi. 208. By 1857 this proposed extension had been widened to include anyone with an annual income of £100, but he was unwilling to maintain the householder franchise, which he felt was a ‘fallacious test ... of competence’.32 Journals of Lord Stanley, 151; Daily News, 2 Apr. 1857. Kelly was also frustrated in his ambitious efforts to reform statute law. Appointed a member of the statute law commission in 1856, he brought forward a bill to consolidate the laws relating to offences against the person, 14 Feb. 1856, but progress was slow, and little had been done by 1862, when Kelly pressed the government on its failure to address the issue, 12 Mar. 1862.33Allen, ‘Kelly, Sir Fitzroy Edward’, Oxf.DNB. In his first full Parliament as member for Suffolk East, he was also an active member of select committees on a bill to consolidate and amend laws relating to bribery, court of chancery (Ireland) bills and the statute law commission.34PP 1854 (340), viii.2; PP 1856 (311), x. 2; PP 1857 sess. 1 (99), ii. 774.

Now a steady attender, Kelly followed Disraeli into the division lobby on most major issues.35In the 1853 session he was present for 51 out of 257 divisions; in 1856 he was present for 28 out of 198: Daily News, 21 Sept. 1853; J.P. Gassiot, Third letter to J.A. Roebuck: with a full analysis of the divisions of the House of Commons during the last session of Parliament (1857), 18. He voted for Disraeli’s motion criticising the Crimean war, 25 May 1855, and Roebuck’s censure of the cabinet, 19 July 1855. An outspoken critic of the income tax, which he believed ‘extended ... unjust and unendurable inequalities’, 2 May 1853, he backed Disraeli’s motion to abolish it in 1860, 23 Feb. 1857. He voted for Cobden’s censure motion on the British bombing of Canton, 3 Mar. 1857, and at the subsequent general election he castigated the governor of Hong Kong, Sir John Bowring, for ‘gratifying his vanity by making a magnificent entry into the city of Canton’.36 Daily News, 2 Apr. 1857. Re-elected unopposed, he returned his attention to law reform, introducing a bill to give effect to the wills of British subjects made abroad, 9 June 1857, which passed its third reading, 6 Aug. 1857, but subsequently failed because of the lateness of the session.

Following the fall of Palmerston’s ministry over its response to the Orsini bomb plot, Kelly was made attorney-general in Derby’s second administration in February 1858. Returned unopposed at the by-election necessitated by his appointment, he stated that Palmerston’s conspiracy to murder bill had been unnecessarily ‘forced’ upon the country.37Ibid., 8 Mar. 1858. He also offered his most advanced position yet on franchise extension, arguing that ‘hundreds of thousands’ of men were qualified to vote ‘by education, by property, by character, by position’, a claim which Bernal Osborne warned showed the new attorney-general’s ‘extreme Chartist principles’, 15 Mar. 1858. Kelly failed in his first task as attorney-general: to successfully prosecute one of the alleged conspirators in the bomb plot, Simon Bernard.38F. Bensimon, ‘Bernard, Simon Francis’, Oxf. DNB, www.oxforddnb.com. Thereafter he focused his energies mainly on reforming bankruptcy law, 22 June 1858, giving his general approval to Lord John Russell’s bill on the matter, 16 Mar. 1859, and amending the Divorce and Matrimonial Causes Act, 22 Apr. 1858, 23 July 1858. He also helped to author the Derby ministry’s doomed 1859 reform bill, staunchly defending the proposal to give the vote to working men who had £60 in a savings bank while not lowering the borough qualification.39 Ipswich Journal, 23 Apr. 1859.

Returned comfortably in second place at the 1859 general election, Kelly resurrected some of his earlier legislative projects. His bill to amend the 1854 Corrupt Practices Prevention Act was essentially based on his chief proposal made in 1854: to make bribery impossible by compelling the candidate to pay all expenses through the hands of a public officer, 9 Feb. 1860.40Kelly also sat on the 1860 select committee on the Act: PP 1860 (329), x. 2. Although his bill gained support in the Commons, it eventually came to nothing. He also abandoned his longstanding efforts to introduce an effective appeal process in criminal cases, 20 July 1864, and withdrew his bill for an amendment to the law of evidence and practice in courts of justice, owing to the number of objections, 15 June 1865. During Palmerston’s third administration, Kelly mainly devoted his energies to the abolition of the malt tax. He successfully moved for and chaired a select committee on the effect of malt duties on the agricultural interest, arguing that the tax ‘fell with great severity on the only luxury within the poor man’s means’, 23 June 1863.41PP 1863 (460), vii. 454. Disraeli, though, doubted the sincerity of Kelly’s agitation, believing he had undertaken it mainly with a view to save his own seat.42 Journals of Lord Stanley, 221. This was probably unfair, as Kelly had supported abolition since 1835, and his Suffolk East seat was not under any threat. His resolution that the Commons should, upon any future remission of indirect taxation, repeal the malt tax was defeated by 251 to 171 votes, 7 Mar. 1865. He subsequently gave cautious backing to the government’s malt duty bill, believing it would indirectly give relief to producers of barley and manufacturers of malt, 15 June 1865. In the division lobby he continued to vote with Disraeli, and opposed all radical motions to equalise the country and borough franchises.

At the 1865 general election he insisted that the malt tax was not just an agricultural question, ‘but one that affects the labouring classes and the humbler portion of the middle classes’.43 Ipswich Journal, 8 July 1865. He was returned without a contest. An opponent of the £6 household franchise, he voted against the Liberal government’s reform bill and backed the Adullamite amendment in favour of the rating clause, 18 June 1866, which brought down Russell’s short-lived ministry. Upon the formation of Derby’s third administration the following month, Kelly replaced Sir Frederick Pollock as lord chief baron of the exchequer, a judicial appointment that removed him from the Commons. He was the last person to serve in the role before the exchequer was merged into the queen’s bench.44Allen, ‘Kelly, Sir Fitzroy’, Oxf.DNB.

Kelly’s appointment was resented by his old foe Rigby Wason, who subsequently revived their dispute by petitioning the House of Lords to inquire into Kelly’s evidence to the 1835 Ipswich election committee.45Loveland, Political libels, 26; Hansard, 12 Feb. 1867, vol. 185, cc. 257-73. The Lords swiftly dismissed the petition, 12 Feb. 1867, with support from Russell and Derby. Controversy, however, did not entirely escape Kelly’s tenure as lord chief baron. In 1878 he dissented from the majority of the privy council’s judicial committee in the Ridsdale ritual case (which concerned the operation of the Public Worship Regulation Act) and subsequently clashed publicly with Lord Cairns over the right, controversially claimed by Kelly, to be open about the lack of unanimity.46 The Times, 20 Sept. 1880; Allen, ‘Kelly, Sir Fitzroy Edward’, Oxf.DNB.

Kelly continued to serve as lord chief baron, despite his health failing from exhaustion, until his death at the Bedford Hotel, Brighton, in September 1880.47 The Times, 20 Sept. 1880. His personal effects, valued at under £60,000, were shared between his daughters.48England and Wales, National Probate Calendar, 8 Dec. 1880; Bristol Mercury, 24 Dec. 1880. An extensive obituary in The Times praised his abilities as a lawyer, but described him as ‘a very slow judge, who asked numberless questions about comparatively unimportant dates and facts’.49 The Times, 20 Sept. 1880. His reputation suffered further from Sir William Holdsworth’s entry on him in the History of English Law, which concluded that he ‘was not an admirable character’.50Sir W. Holdsworth, History of English Law (1923), xv. 482-6. This judgement, however, was based on Lord Justice Rolt’snow largely discredited memoirs, in which Kelly had been castigated for his ‘want of due respect to truth’.51 The memoirs of the Right Honourable Sir John Rolt (1939), 141-6. Rolt was possibly suffering from depression when writing his memoirs: Allen, ‘Kelly, Sir Fitzroy’, Oxf. DNB. In contrast, the eminent judge Sir Henry Hawkins recalled that ‘whatever his decision, you went away satisfied that you had been fairly dealt with’.52 The reminiscences of Sir Henry Hawkins, ed. R. Harris (1904), i. 153.

Although undoubtedly a controversial and divisive figure in Ipswich politics, where his name ‘was once the signal for letting loose the dogs of war’, in the Commons Kelly sought cross-party support for his legal reforms and often gave generous support to his political opponents on legal questions, though his ambition to reform the death penalty, the right of appeal in criminal cases, and the consolidation of the law were ultimately frustrated.53Public men, 71. His correspondence with Peel is held by the British Library, London, and his letters to Disraeli are held by the Bodleian Library, Oxford.54BL Add. 40510-40576; Bodl. Oxf., Dep. Hughenden.