Dictionary of National Biography, 1885-1900/Kelly, Fitzroy
KELLY, Sir FITZROY (1796–1880), lord chief baron, born in London in October 1796, was grandson of Colonel Robert Kelly of the East India Company's service, and son of Captain Robert Hawke Kelly, R.N., by his wife Isabella, daughter of Captain Fordyce, carver and cupbearer to George III. He was sent to Mr. Farrer's school in Chelsea (see J. R. Planché, Recollections), and was afterwards placed in the office of Mr. Brutton, a solicitor, of Bethnal Green. On his employer's advice he was entered at Lincoln's Inn in 1817, read with Abrahams and Wilkinson, well-known pleaders, was called to the bar on 7 May 1824, and after a year or two on the home circuit joined the Norfolk circuit. He rapidly obtained a good practice, chiefly at first in the crown court, and was in especial repute as an expert pleader. In 1834 he was appointed a king's counsel. He became a bencher of Lincoln's Inn in 1839, and long was standing counsel to the Bank of England and the East India Company. From the beginning of his career he was a strong tory, and early took part in politics. He contested Hythe unsuccessfully at the general election of 1830, Ipswich also unsuccessfully in December 1832, and when after a severe contest he was returned for Ipswich in January 1835, he was shortly afterwards unseated on petition. At the general election of 1837 he again contested Ipswich; was defeated by Mr. Henry Tufnell by a few votes, claimed a scrutiny, and won the seat. This he lost again at the general election of 1841 (see Memoirs of J. C. Herries, ii. 189), re-entered parliament for the borough of Cambridge in 1843, and did not seek re-election there at the next election in 1847, but unsuccessfully contested Lyme Regis. In April 1852 he was elected at Harwich, but before taking his seat a sudden vacancy occurred for the eastern division of Suffolk, in which county he had considerable estates (at Sproughton, near Ipswich), and he offered himself in May, won the seat, and continued to represent this constituency till he was raised to the bench.
He first took office as solicitor-general in succession to Sir Frederick Thesiger on 29 June 1845, and was then knighted. He held the post till 2 July 1846. He acted with Lord George Bentinck after Peel's fall, and was again solicitor-general under Lord Derby's administration in 1852 (from 27 Feb. to 28 Dec.) From 26 Feb. 1858 to 10 June 1859 he was attorney-general in Lord Derby's second administration. His practice at the bar was very large and lucrative, especially in the House of Lords and before the privy council, in both of which it was greater than that of any of his contemporaries. His income is said to have reached 25,000l. per annum. He was a good speaker, a sound lawyer, a dexterous advocate, and a man of sense and discretion. His best-known cases were his defences of Tawell the poisoner in March 1845 (which won him his name of ‘Applepip Kelly’), and of Frost the chartist in 1840; his prosecutions of the Wakefields for abduction, of Dr. Bernard in 1858 for complicity in the Orsini plot, and of Dr. Newman for a libel on Dr. Achilli. He also appeared in O'Connell's House of Lords appeal, Gorham v. Bishop of Exeter in 1847, and Egerton v. Earl Brownlow in 1853. He was counsel for Lord Talbot in the Shrewsbury peerage case, and his speech in the case of the Crawford and Balcarres peerage was published by A. W. C. Lindsay in 1855. He was an ardent law reformer (see Nash, Life of Lord Westbury), served on the commission on the consolidation of the law, and early became an advocate of codification. He repeatedly moved the repeal of the malt tax, introduced a Corrupt Practices Bill, and bills both for a criminal court of appeal and to enable prisoners to give evidence in 1865.
On 16 July 1866 he was raised to the bench as chief baron of the exchequer, and was sworn of the privy council. In spite of his age he proved himself an able and vigorous judge, until he became incapacitated by physical infirmity. His appearance on the bench was one of peculiar dignity and impressiveness, but in his late years the progress of a case before him was so slow as almost to amount to a denial of justice, and he was prone to introduce politics in court. In 1878 he disclosed the fact that the judgment of the privy council in the Ridsdale case had not been unanimous. An order in council was then issued on 4 Feb. 1878, forbidding such disclosures in the future as being inconsistent with the privy councillor's oath, and Kelly, taking this as a censure on himself, published in November a pamphlet in which he vigorously and even successfully contended that the oaths only referred to consultative matters, and never had been treated as referring to judicial business and appeals. The general expectation that he would have received a peerage, and then have retired from the bench, was not fulfilled, perhaps as a consequence of this controversy, or of the fact that in his later years he sustained heavy pecuniary losses. After a short illness he died, while still in office, at Brighton on 18 Sept. 1880, and was buried at Highgate cemetery on 22 Sept.
He was twice married, first, in 1821, to Agnes Scarth, daughter of Captain Mason of Leith, and, secondly, in 1856, to Ada, daughter of Mark Cunningham of Boyle, county Roscommon. He left four daughters, but no son. [Foss's Lives of the Judges; Times, 20 Sept. and 8 Oct. 1880; Law Times, 25 Sept. 1880; Law Journal, xv. 470; Solicitors' Journal, xxiv. 681.]