User:Ironholds/Erskine

The Right Honourable The Lord Erskine KT PC KC
Lord Chancellor
In office 1806–1807
Monarch	George III
Prime Minister	The Lord Grenville
Preceded by	The Lord Eldon
Succeeded by	The Lord Eldon
Personal details
Born	10 January 1750 (1750-01-10) Edinburgh
Died	17 November 1823(1823-11-17) (aged 73) Almondell, Linlithgowshire
Nationality	British
Political party	Whig
Spouse(s)	(1) Frances Moore (d. 1805) (2) Sarah Buck (d. 1825)
Alma mater	Trinity College, Cambridge

Thomas Erskine, 1st Baron Erskine KT PC KC (10 January 1750 – 17 November 1823) was a British barrister and politician.

Early life

Erskine was born on 10 January 1750, the third son of Henry Erskine, 10th Earl of Buchan, in Edinburgh. The Earl had been reduced to poverty and forced to move out of his ancestral home, and so his son's education was more limited than the title would suggest. A poem written by Erskine in his childhood, titled Threadpaper Rhymes, read in part:

Papa is going to London,

and what will we get then, oh!

But sautless kail, and an old cow's tail,

and half the leg of a hen, oh!

He was originally educated by his mother, Agnes Steuart (who had studied mathematics with a friend of Isaac Newton), before going to school in the Old Town. After the family moved to Fife, Erskine began attending St. Andrew's Grammar School, taking some courses at the University of St Andrews. Because formal university study was out of the question due to his family's financial difficulties, he instead enlisted in the Royal Navy as a midshipman when he was 14. This was done reluctantly; Erskine had actually wanted to enlist in the Army due to the greater opportunities for learning, but could not afford to buy a commission. He spent four years serving on HMS Tartar, a man-o-war sailing around the Caribbean and North America. At one point he was struck by lightning, although it did him no lasting harm. By the time his father died, when Erskine was 18, he had been promoted to acting lieutenant, and after leaving the Navy could now afford to join the British Army as an Ensign, which he did, serving in the Royal Scots. While with the Army he fell in love with Frances Moore, the daughter of Daniel Moore, the Member of Parliament for Great Marlow, and married her on 21 April 1770.

As an ensign, Erskine published Observations on the Prevailing Abuses in the British Army, arising from the Corruption of Civil Government, a widely circulated pamphlet which demanded that soldiers be subject to the rights of all citizens, and not just those recognised under martial law. Although published anonymously, Erskine's authorship was an open secret within the armed forces, and the pamphlet was widely popular. Despite this success, and his promotion to Lieutenant due to seniority in April 1773, Erskine's prospects were bleak; he could not afford to buy a higher rank, and with a wife and family to look after, did not enjoy barrack room life. By chance he wandered into an Assize courtroom where Lord Mansfield was sitting, and after Mansfield found out that Erskine had sailed under Lindsay, Mansfield's nephew, he was invited to sit on the bench. Erskine's enjoyment of the proceedings made him resolve to train as a barrister.

Having decided to do this, Erskine sold his commission as a Lieutenant and joined Lincoln's Inn on 26 April 1775; he technically remained a member of the British Army for six months, having taken an extended leave of absence. Under the rules of the time he would have been required to be a student for five years, unless he obtained a degree from Oxford or Cambridge, in which case the period would have been reduced to three years. As such, he became a gentleman commoner of Trinity College, Cambridge on 13 January 1776. As the son of a peer he did not have to sit examinations to be awarded his degree, and Erskine instead practised composing English verse and prose, gaining the prize in English Declamation for his speech on the Glorious Revolution. At the same time he took part in debates at Coachmakers' Hall in London and studied under Francis Buller and later George Wood. After gaining his Masters of Arts degree in June 1778, he was called to the Bar by Lincoln's Inn on 3 July.

Early career as a barrister

See also: R v Baillie

Captain Thomas Baillie, the subject of R v Baillie

As a poor man with few contacts amongst solicitors, Erskine fully expected a slow start to his career; his first case, however, came relatively quickly, in November 1778. Captain Baillie was a respected sailor who, after retirement, had been appointed Lieutenant-Governor of the Greenwich Hospital for Seamen. Here he found corruption, in breach of the Royal Charter, and endeavoured to bring it to the attention of the directors of the hospital, to the hospital's Governors, and eventually to the Lords Commissioners of the Admiralty. After no responses, Baillie published an account of the corruption, which included the denial of food to patients. This reflected badly on the Earl of Sandwich, who was at the time First Lord of the Admiralty and had, to gain votes and pay off political debts, given many of the positions in the Hospital to his cronies, who had never served as sailors. Although publicly ignoring Baillie, Sandwich ensured that he was suspended from his job, and had his cronies go to the Court of King's Bench and secure a writ allowing them to sue him for criminal libel.

By coincidence, Baillie and Erskine happened to attend dinner at the house of a mutual acquaintance, and after Erskine "launched into an eloquent tirade against the corrupt and tyrannical practises of Sandwich", Bailiie asked who he was. Discovering that he was not only a barrister but a former sailor, Baillie resolved to have him as counsel in the case. The next morning, Erskine received the brief for R v Baillie, and a retainer of one guinea. Initially thinking he was the only barrister Baillie had retained, he was disappointed to find out that he was but one of five, the other four being Bearcroft, Peckham, Murphy and Hargrave, and that he was scheduled to speak last. The case opened on 23 November 1778 at 1pm before Lord Mansfield, but as luck would have it, the first three barristers spoke for an extended period of time, and Hargrave came down with an illness which forced several interruptions in the case. Because of this, Mansfield ordered that the case should resume in the morning, with Erskine speaking first.

Erskine's resulting speech, personally critical of Sandwich, was noted as a maiden speech "matchless in any time or under any circumstances, [which] may justly take rank as the most wonderful forensic effort of ancient or modern times". He argued that Baillie's work could not be considered criminal libel, comparing it to the work of other alleged libellers, which attempted to harm the state while Baillie had been acting in it's best interests. Sandwich was not in court, and Erskine refused to engage with his subordinates, saying that he had "placed these men in the front of the battle in hopes to escape under their shelter, but I will not join in battle with them; their vices, though screwed up to the highest pitch of human depravity, are not of dignity enough to vindicate the combat with me. I will drag him to light, he who is the dark mover behind this scene of iniquity". The result was that the case against Baillie was dismissed; Joseph Jekyll, viewing the case, said he found the court "in a trance of amazement", with spectators congratulating Erskine and attorneys offering him an ovation and many briefs on the spot.

Entry to Parliament

As a longtime member of the Whig faction, and a friend of leading figures such as Charles James Fox, Erskine was a natural choice for an open Parliamentary seat. When the Whigs took power as part of the Fox-North Coalition in April 1783 they created a vacancy in Portsmouth to allow him to take his seat; he was accordingly elected. Due to his status as a noted barrister and orator his maiden speech, on the subject of the East India Bill, was anticipated to be excellent. Instead it was a "damp squib"; while he flourished in front of a jury with open minds, impatient and argumentative MPs gave him short shrift. J.L. High, writing in Bench and Bar, attributes this both to the novelty of the situation and to the behaviour of his opponent, William Pitt the Younger, a man who had been an opponent of Erskine's at the bar and was jealous of his success. At the beginning of the debate, Pitt sat with pen and paper, taking notes for his rebuttal. As Erskine continued, Pitt's attention could be seen to waver until "with a contemptuous smile he dashed the pen through the paper and flung both to the floor. Erskine never recovered from the expression of disdain; his voice faltered, he struggled through the remainder of his speech, and sank into his seat dispirited and shorn of his fame".

While Erskine's later speeches were more successful, he never achieved the same heights of rhetoric as Fox, something J.A. Loval-Fraser attributes to his fear of Pitt, who could cause him to cease talking "by merely putting out his hand or making a note". Following further disputes over the India Bill, the Coalition lost power; George III removed the Duke of Portland from his position as Prime Minister, appointing Pitt in his stead. With this, a general election was called in which public opinion turned strongly in favour of Pitt and away from the Whigs; Erskine became one of the 160 Coalition MPs who lost their seats, informally known as "Fox's Martyrs".

Return to the Bar

The Case of the Dean of St Asaph

Main article: The Case of the Dean of St Asaph

Despite his failure as a Member of Parliament, Erskine's career as a barrister continued to flourish: Mansfield recommended he apply to become a King's Counsel, which he did. He was accepted, and formally given silk in May 1783. Soon afterwards, he was retained as defence counsel for William Davies Shipley, the Dean of St Asaph, who had been charged with seditious libel. In the aftermath of the American War of Independence, electoral reform had become a substantial issue, and William Pitt the Younger attempted to bring a bill before Parliament to reform the electoral system. In support of this, Shipley republished a pamphlet written by his son-in-law, Sir William Jones, which argued for the defects of the existing system, and in support of Pitt's reforms. Thomas FitzMaurice, the brother of of the Earl of Shelburne, reacted by indicting Shipley for seditious libel, a criminal offence which acted as "the government's chief weapon against criticism", since merely publishing something that an individual judge interpreted as libel was enough for a conviction; a jury was prohibited from deciding whether or not the material was actually libellous.

Shipley was trialled in 1784 by Mr Justice Buller and a special jury at Shrewsbury. Edward Bearcroft, counsel for the prosecution, argued in favour of the existing system — that the jury could not decide on the nature of the pamphlet — while Erskine argued not only that they could, but that the material did not constitute seditious libel, containing as it did "a solemn protest against all sedition". Persuaded by Erskine, the jury ruled that Shipley was not "guilty" or "not guilty", but instead "guilty of publication only", a confusing and non-standard ruling which, after a long dialogue, Buller declared to mean guilty on all charges. Erskine appealed the decision to the Court of King's Bench on 8 November, where the judges again ruled that juries could not decide on whether material was libellous, but had Shipley released on a technicality; his freedom was greeted with fireworks and bonfires, while Erskine was rewarded with the Freedom of the City of Gloucester. Still seeking to reform the law, Erskine sent the court records to Charles James Fox and Lord Camden, who after much effort passed the Libel Act 1792, which secured the right of juries to decide if material was libellous.

Trial of Lord Gordon

Main article: Trial of Lord George Gordon

A painting by John Seymour Lucas, depicting the Gordon Riots.

On 2 June 1780, approximately 60,000 people gathered in St George's Fields, London, to hear an address from Lord George Gordon, President of the Protestant Association. Gordon and the mob were there to hand in a petition to Parliament decrying the Papists Act 1778, a Roman Catholic relief bill. After marching to Parliament and reassembling, the mob became incensed by a declaration from Gordon that consideration of the petition was to be postponed, and fragmented. Groups began destroying and looting Catholic buildings or buildings owned by those they alleged to support Catholic relief, destroying the house of Lord Mansfield, and attacking and breaking into several prisons. By the time the riots were quashed by the military after a week, at least 300 had died. 450 were arrested, including Lord Gordon himself, who was charged with high treason.

Gordon had Erskine appear as defence counsel, in a trial at the Court of King's Bench beginning on 5 February 1781. Erskine was opposed by the Attorney General of England and Wales, leading the elite of the bar, while Gordon only had Erskine and Lloyd Kenyon, an equity barrister with little practise in constitutional matters whose poor speech in Gordon's defence did little but confuse the jury. Seeing the reaction of the jury to Kenyon's speech, Erskine asked for leave to delay giving his speech, which was granted. Following the testimony of 12 witnesses, who stated that Gordon was of excellent character and was loyal to both the king and the constitution, Erskine rose, and instead of arguing that Gordon had not been involved instead took the line that his crimes did not constitute treason. High treason was at the time still based on the Treason Act 1351, which mandated that no amendments should be made except by Parliament. The judiciary had extended this to include constructive treason - something they were not allowed to do.

Erskine argued that the original law required the act to be treasonous in nature, not just in consequence, and Gordon's crimes did not meet this test; his intention had been to defend, rather than threaten, Britain. The jury accepted this, finding him not guilty. The verdict was accepted with pleasure by the majority of the populace, with constructive treason "widely regarded as highly threatening and injurious to public freedoms"; as a result, juries became far less willing to convict people for constructive treason, and the government resorted to amending the Treason Act to incorporate the judge-made constructive treason into statute law. Erskine's speech, more than anything else, is considered to be the source of this acquittal; Lloyd Paul Stryker in his biography of Erskine notes that he "had held his jury spellbound-not the jury only, but the whole courtroom also. His logic, his sincerity, and his fire had driven in his close-knit arguments with hammer blows".

House of Commons v Stockdale

An engraving of John Stockdale, Erskine's client in House of Commons v Stockdale.

Under a rule of the time, barristers were assigned to circuits, geographical administrative divisions. A barrister assigned to one circuit could not practise in another without a special retainer. Erskine's skill and fame as a lawyer meant that cases flowed in at such a pace as to cause him to abandon his circuit entirely, practising throughout England and Wales and becoming the first barrister to do so. One of the first cases following his departure from Parliament was House of Commons v Stockdale. Warren Hastings, previously the Governor-General of Bengal, had been impeached for high crimes and misdemeanours. Charged with corruption, he was tried by Parliament, with Edmund Burke vowing "immortal hatred" against him. Despite this, Burke was the one tasked with drawing up the articles of Hastings' impeachment, and these articles and the inflammatory language in them were widely printed, both in newspapers and in the official record of the House of Commons.

The Reverend Logan, a minister of the Church of Scotland, was disturbed by the prejudice this created against Hughes before the trial, and wrote a book in defence of him that "compared the House of Commons to an inquisition rather than a court of Parliament and, with its own brand of invective and irony, accused those who instigated the impeachment of personal animosity rather than seeking public justice". John Stockdale, a prominent publisher, had the book printed and sold. The Commons, meanwhile, directed Archibald Macdonald to file against Stockdale for libel. The case came to trial on 9 December 1789. Macdonald quoted from passages of the book, trying to show defamation; Erskine, hired by Stockdale for his defence, argued that the book as a whole was not defamatory. It had "some 2,530 lines out of which only 40 or 50 from different parts had been artfully put together to give a false impression of the work". Hastings had already been prejudiced against; Erskine argued that to argue that nothing could be said in his defence would be unfair, and said that "If this be law (which it is for you today to decide), such a man has no trial, that great Hall, built by our fathers for English justice, is no longer a court, but an altar; and an Englishman, instead of being judged in it by God and His Country, is a victim and a Sacrifice". After deliberating for two hours, the jury returned a verdict of "not guilty". James Lovat-Fraser, writing in the Canada Law Times, wrote in 1909 that Erskine's defence of Stockdale was "[his]...finest speech...If it has a fault, it is that it is too fervid and ornate".

Thomas Paine and the Rights of Man

Main article: Trial of Thomas Paine

Thomas Paine, the defendant

After the French Revolution and the execution of Louis XVI, the government of Britain under William Pitt became increasingly repressive, fearing the spread of Jaccobinism to the United Kingdom and the overthrow of the government. Thomas Paine was a noted writer and political theorist whose work had influenced and helped drive the American Revolution. Having returned to England, he decided to write a work of political philosophy titled Rights of Man. The first part was published in 1791, and attracted no attention from Pitt's administration. The second, published on 16 February 1792, advocated (amongst other things) the right of the people to replace their government if they thought it appropriate. The work was an immediate success, selling a million and a half copies, and generated public support for various reform movements. It also brought Paine to the attention of the government and made him a subject to its crackdown. A writ was issued for Paine on 21 May, charging him with the seditious libel. His trial date was set for 8 June, and later rescheduled for 18 December, by which point he had fled the country.

Erskine, tasked with representing Paine, came under intense political pressure to refuse and lost his job as Attorney-General to the Prince of Wales. Despite this he appeared in court on 18 December in front of Lord Kenyon, arguing that Paine's work served only to improve the government, by highlighting its weaknesses, and could not be seditious if published in good faith. Paine was found guilty before the prosecution even replied, despite Erskine's speech, but after leaving the court he was confronted by a mob who cheered him and shouted "Damn Tom Paine, but Erskine for ever, and the Liberty of the Press; the King, the Constitution, and Erskine for ever". The crowd proceeded to unhitch the horses from his carriage, and carry the carriage (with him inside) to his lodgings at Serjeant's Inn. Over 30 transcripts or reports of the trial were printed, all of which contained Erskine's speech, and "a number of editions used the speech as their main selling point by typographically emphasising the advocate’s name and the central theme of his speech, the liberty of the press, on their title-pages". Paine himself, however, found Erskine's speech and conduct during the trial disappointing, expecting him to do more to defend the principles in the Rights of Man than he had.

Treason Trials

Main article: 1794 Treason Trials

Thomas Hardy's account of the 1794 Treason Trials.

The government took Erskine's loss in the trial of Thomas Paine as a sign that further prosecutions for sedition were possible, and began many. These culminated in the 1794 Treason Trials, most prominently of Thomas Hardy, a shoemaker,, John Horne Tooke and John Thelwall. Erskine defended all three, without charging a fee. Hardy was tried first, on 28 October 1794 before Lord Chief Justice Eyre. John Scott, prosecuting, gave an opening speech that lasted for nine hours, refusing to let Erskine examine the evidence against Hardy. He argued that Hardy was sympathetic to France, and intended to duplicate the French Revolution in England. Erskine, speaking for seven hours, stated that Hardy had said nothing that went any further than the statements of Pitt the Elder or Pitt the Younger - now the Prime Minister ordering these trials, but historically a reformer. Several government spies were presented as witnesses, but Erskine "set out to demolish [their] evidence", at one point making it necessary for Eyre to intervene and insist Erskine give the witness "fair play". Having spoken from 2pm to 9pm, Erskine asked the jury to ensure that justice prevailed, and left the court, asking the crowds outside to wait for the verdict to be read and avoid doing anything that would imperil the defendant. The jury found Hardy not guilty.

Despite their loss in Hardy's trial, the government pressed forward with the prosecution of Tooke. His trial commenced on 17 November, again before Eyre. Erskine duplicated the argument he'd made during Hardy's trial, even succeeding in calling Pitt as a witness and forcing him to admit he had historically advocated for Parliamentary reform. This "virtually destroyed the prosecution case", and after Eyre summarised the case, the jury took only eight minutes to declare Tooke not guilty. Even with this loss, the government continued with Thelwall's case, who was alleged to have "cut the froth from a pint of porter and advocated the same fate for the heads of kings".

Trial of James Hadfield

Main article: Trial of James Hadfield

Character

Renowned for his oratory, Erskine was assisted by "a singularly sweet and flexible voice", allegedly training with Sarah Siddons to improve it. His ability to enrapture juries, combined with a prodigous memory, was key to his success; even John Campbell, a legal biographer so harsh that [[Charles Wetherell] joked he added "a new terror to death", stated that "many generations may pass away before [Erskine's] equal is presented to the admiration of mankind...as an advocate of the forum, I hold him to be without an equal in ancient or in modern times".

As a parliamentarian, however, Erskine was outshined by many contemporaries; his speaking style did not lend itself to a fractious and opinionated environment.

Bibliography

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