Thomas Erskine, First Baron Erskine

Scottish lawyer and social reformer

• Born: January 10, 1750
• Birthplace: Edinburgh, Scotland
• Died: November 17, 1823
• Place of death: Almondell, Linlithgow (now West Lothian), Scotland

Combining eloquence with strong liberal leanings, Erskine became the most famous and accomplished trial lawyer and defender of individual rights in English history.

Early Life

Thomas Erskine’s mother, née Agnes Stuart, was of distinguished English parentage: One of her grandfathers was Sir Thomas Browne, the author of Religio Medici (1642, 1643). Henry David Erskine, his father, was the tenth earl of Buchan and the descendant of a historically significant Scottish clan. By the time Erskine was born, however, his father’s income had diminished considerably, and Erskine did not receive the same education as did his two older brothers, one of whom, Henry, was destined to become an outstanding barrister in Scotland. Unable to purchase a commission in the army, which he would have preferred, his family did secure a position for him in the navy. At fourteen Erskine went to sea on the Tartar, commanded by a nephew of Lord Mansfield, who later was to encourage Erskine’s legal ambitions.

After four years at sea, which he spent primarily in the West Indies, Erskine left naval service and bought a commission as ensign in the First Royal Regiment of Foot. At the age of twenty he married, despite her father’s objections (Erskine’s prospects were hardly promising at the time), Frances Moore, who was from a good though relatively poor family. After the marriage the Erskines went to Minorca, where his regiment was stationed. During this two-year stint there, Erskine unwittingly prepared himself for his future success in law. Continuing a practice he had established before his marriage, he served as preacher to his men; the art of organizing material and adjusting content to an audience was to stand him in good stead when he later “preached” before judges and juries. In addition, he did much reading especially in “classic” English literature, and many Miltonic and Shakespearian quotations, sentiments, and rhetorical devices subsequently appeared in his summations before juries.

In 1772, he left Minorca and obtained a six-month leave, which he spent in London. Because of Lord Mansfield’s encouragement, his brother Henry’s success, his awareness that military advancement would be unlikely, his need to support his family, and the nature of his talents, Erskine determined to become a lawyer. Being the son of a nobleman, he was entitled to a degree at one of the universities, and his work at Trinity College, Cambridge, shortened the length of time it took to be admitted to the bar. In 1775, he became a student at Lincoln’s Inn (one of the Inns of Court, where the study of law was conducted), sold his commission in the army, and matriculated at Trinity in 1776. While at Cambridge he continued his study of English literature and concurrently read law, and in 1778 he received his honorary master of arts degree and was admitted to the bar. During those three years he lived in relative poverty, but his fortunes were to change radically when he took his first case, one which was to prove typical in that he defended a victim of the privileged classes and that the case involved freedom of the press and freedom of speech.

Life’s Work

Thomas Baillie, who was the lieutenant governor of the Greenwick Hospital for sailors, charged fraud and corruption in the earl of Sandwich’s administration of the hospital and was subsequently charged with libel. Because Baillie overheard Erskine attack the earl of Sandwich in a dinner conversation, he inquired about Erskine’s identity and upon learning of Erskine’s legal training and naval experience engaged him as one of his barristers. Although his other counsel advised a compromise, Baillie agreed with Erskine’s advice to seek an acquittal, and when Baillie’s case appeared lost, Erskine made an impassioned defense that tied Baillie’s fate to national security and naval morale, thereby winning his client’s case and ensuring his own future success.

Within a few months, Erskine, again serving in a secondary capacity, wrote the speech that cleared Admiral Keppel of “incapacity” charges, and when he successfully defended Lord George Gordon, who was tried for high treason for his alleged participation in the anti-Catholic riots of 1781, he established himself as the foremost English barrister of his time. His was a lucrative practice, involving both civil domestic cases and maritime and commercial cases related to the animosity between England and France. His success and his response to it—he was fastidious in dress, convivial and self-assured in behavior, and a bit of an actor before an audience—did produce some critics, whose jealousy led them to term him “Counselor Ego.”

Among Erskine’s detractors was William Pitt the Younger, who had served under him and whose personality formed a distinct contrast to the joking, carefree, open Scot. The personality conflict had political implications as well: Pitt, a Tory, became King George III’s prime minister; Erskine, a Whig, allied himself with Richard Brinsley Sheridan (the playwright-politician) and Charles James Fox, and was a favorite of the prince of Wales (later King George IV). The conflict between the two surfaced when Erskine made his first speech in the House of Commons. Pitt’s contemptuous response to his speech—he made a point of failing to take notes during the speech—crushed Erskine’s ego, but he more than compensated for his subsequent political defeat by his courtroom victories over Pitt’s repressive measures against freedom of the press and freedom of speech. In a libel case involving Pitt, Erskine was successful in reducing the judgment against the Morning Herald to œ250, and he won an acquittal for John Stockdale, who had been charged with libel relating to the prosecutors of Warren Hastings, who was being tried for high crimes in India.

Erskine’s belief in freedom of the press was such that he defended, despite the advice of his friends, Thomas Paine, the American patriot who had in 1791 published the first part of The Rights of Man, a response to Edmund Burke’s negative Reflections on the Revolution in France (1790), and followed it with part 2, an attack on hereditary government. Without even waiting for his summation, the jury, which feared that the excesses of the French Revolution could be repeated in England, found the absent Paine (wisely in France) guilty. Erskine was subsequently asked to resign as attorney general to the prince of Wales, who had expressly requested him not to defend Paine. In his espousal of the liberal cause—at a time when Francophobia was at its height—Erskine effectively cut his ties with the people in power. When he lost the John Frost “no king” case, Erskine’s fortunes were at their lowest.

The Fox Libel Act of 1792, which left to the jury rather than judges the question of libel, played a large part in reversing the tide against English liberties, for the principle of trial by jury democratized justice and also allowed Erskine, who had come to be the defender of governmental victims, greater latitude in establishing their innocence. In the Morning Chronicle trial of 1792, for example, he even overcame the judge’s direction to convict by moving the jury to return a verdict of not guilty. When Pitt persisted in his suppression of “domestic enemies” and charges of high treason were brought against Thomas Hardy, John Horne Tooke, and John Thelwall for their participation in the London Corresponding Society, Erskine defended all three successfully, though his methods varied with his clients (he allowed the brilliant Horne Tooke to conduct his own defense, thereby absolving himself of charges of egotism).

In 1797, Erskine reversed himself with Paine and acted, for once, as prosecutor in the case of Paine’s The Age of Reason (1794-1795), which was itself an indictment of the Christian faith. Apparently, the freedom of the press had some limits for Erskine, whose Christian zeal outweighed Paine’s right to free speech and Williams’s right to sell the book. Although Erskine won the case, he was not cut out for the role of prosecutor and unsuccessfully attempted to intervene on behalf of Williams. The case is noteworthy because it is the only blot on Erskine’s record as a champion of individual rights, and also because it brought about reconciliation with the prince of Wales.

Three years later, Erskine defended James Hadfield, who had shot at and missed George III in an apparent assassination attempt. In this trial, which was his last state case, Erskine provided a landmark insanity defense in which he distinguished between “total” insanity and “partial” or temporary insanity and explained Hadfield’s violent act as temporary insanity attributed to severe head wounds suffered serving his country in battle. Because of the array of witnesses and the impeccable logic of Erskine’s argument, Hadfield, whose conviction had been a foregone conclusion, was found innocent, although he was institutionalized for the remainder of his life.

In 1805, Pitt, who had resigned as prime minister in 1801, died, and a new ministry was formed under the leadership of Fox and Grenville. The new ministry contained some Whigs, and, in 1806, Erskine was named lord chancellor, a post he held for a scant fourteen months. His appointment was not greeted with much enthusiasm, for while he had been an outstanding barrister, his success resulted more from his eloquence, wit, and logic than from his knowledge of law. He seemed to his critics to be particularly unsuited for his new post, which concerned equity and property law. While he did not distinguish himself as lord chancellor, he knew his limitations, exercised caution, sought advice, and exercised his honesty and good sense. As a result, none of his decisions was subsequently overturned. His most noteworthy performance was his handling of the trial of Lord Melville, which was conducted more professionally than a similar trial involving Warren Hastings, which lasted seven years.

After resigning as lord chancellor, Erskine turned increasingly away from his public life—he was often absent from the House of Lords and rarely took part in debates—to his private life. In 1817, however, he became active once again to oppose repressive governmental measures, including the Seditious Meetings Bills, and on one occasion urged his colleagues in the House of Lords to “confide yourselves in the people.” Despite his general decline in influence and popularity he returned to center stage during the trial of Queen Caroline, in which his defense of the queen briefly restored the popularity he once enjoyed. Soon after the trial, however, he retreated from the limelight and was in financial straits and understandably out of favor with the king. On a voyage to visit his brother, he became ill and died at his brother’s residence on November 17, 1823.

Significance

While his “apprenticeship” for his legal career may hardly have seemed appropriate, First Baron Erskine found that his gifts as an orator, his lively wit, and his ability to adjust a message to an audience made him the ideal advocate to represent his clients before a jury. As is often the case with influential figures, he seemed created for his time, a time in which English laws began to allow lawyers greater opportunity to affect the course of justice but also a time in which hard-won English liberties were threatened not only from without but also from within. As well-intentioned government officials sought to avoid an English counterpart to the French Revolution, they unfortunately and ironically created their own “reign of terror.” In the face of Pitt’s assaults on English liberty, Erskine defended the victims of governmental oppression and championed the liberal cause, whether the issue was cruelty to animals, freedom of the press, or slavery.

While he had no peer as a barrister, Erskine did not enjoy equal success as a judge, a position for which he lacked not only the training but also the temperament. Ever the actor, he was more at home before the bar, and his appointment as lord chancellor, which should have served as the culmination of his career, actually signaled the beginning of his decline. Nor did he experience success in politics, a field seemingly well suited to a person of his oratorical skills. Temperamentally, however, he was not a politician, for his principles were too fixed, and he seemed unable to temper his enthusiasm to the prevailing national moods. By remaining active, perhaps because of his vanity, long after he had reached his peak as a barrister, he experienced the inevitable decline that accompanies old age and that made him easy prey for the enemies he had made in the defense of English liberties.

Bibliography

Brown, Philip Anthony. The French Revolution in English History. New York: Barnes and Noble Books, 1965. A sympathetic account of Erskine’s defense of Paine and his role in defending the English victims of Pitt’s repressive measure. Describes the profound effect of the French Revolution on England.

Browne, Irving. Short Studies of Great Lawyers. Littleton, Colo.: Fred B. Rothman, 1982. A reprint of a book originally published in 1878, this book includes a chatty, anecdotal treatment of some of Erskine’s greatest court cases and a favorable portrait of Erskine’s character. Browne tends to be effusive in his praise: “Erskine’s place among lawyers is as peculiar and unrivaled as Shakespeare’s in literature.”

Eyck, Erich. Pitt Versus Fox: Father and Son, 1735-1806. Translated by Eric Northcott. London: G. Bell and Sons, 1950. Eyck places Erskine in the political fray between the Whigs and Tories and praises his contribution to liberalizing the libel laws.

Hostettler, John. Thomas Erskine and Trial by Jury. Chichester, England: Barry Rose, 1996. An updated biography of Erskine, written by an English lawyer and focusing on Erskine’s legal career. A readable, well-researched book, containing reprints of some of Erskine’s speeches.

Roscoe, Henry. Lives of Eminent British Lawyers. Littleton, Colo.: Fred B. Rothman, 1982. A reprint of a book originally published in 1830, Roscoe’s “life” is a favorable account of Erskine’s many court cases and includes many lengthy speeches, which makes it an especially valuable source. Roscoe’s life is essentially the source for most subsequent biographical study of Erskine, who is treated as the model English barrister: “The genius of Erskine seems to have been created at the very period which enabled it to shine forth in its brightest lustre.”

Speer, Emory. Lincoln, Lee, Grant, and Other Biographical Addresses. New York: Neale, 1909. A baccalaureate address delivered at the Mercer University Law School Commencement in 1908, Speer’s address is an “appreciation” of Erskine’s abilities as a “forensic orator.” The address concentrates on Erskine’s cases and law career.

Stryker, Lloyd Paul. For the Defense: Thomas Erskine. Garden City, N.Y.: Doubleday, 1947. An extremely favorable life of Erskine, the book criticizes his foes, notably Pitt, and dismisses criticism as the product of jealous minds. Stryker provides a wealth of historical background which is essential to assessing Erskine’s achievements in terms of the turbulent times in which he lived.