Thomas Erskine, 1st Baron Erskine

Thomas Erskine, 1st Baron Erskine (10 January,1750 – 17 November 1823), Lord Chancellor of the United Kingdom, was the third and youngest son of Henry David Erskine, 10th Earl of Buchan, and was born in Edinburgh. From an early age he showed a strong desire to enter one of the learned professions; but his father, owing to his straitened circumstances, was unable to do more than give him a good school education at the Royal High School of Edinburgh and the grammar school of St Andrews. In 1764 he was sent as a midshipman on board the "Tartar", but on finding, when he returned to the UK after four years absence in North America and the West Indies, that there was little immediate chance of his rank of acting lieutenant being confirmed, he quit the service and entered the army, purchasing a commission in the 1st Royals with the meagre patrimony which had been left to him. But promotion here was as slow as in the navy; while in 1770 he had added greatly to his difficulties by marrying the daughter of Daniel Moore, M.P. for Marlow, an excellent wife, but as poor as himself. However, an accidental visit to an assize court in the town in which he was quartered, and an interview with Lord Mansfield, the presiding judge, confirmed his resolve to quit the army for the law. Accordingly on 26 April 1775 he was admitted a student of Lincolns Inn. He also on 13 January following entered himself as a gentleman commoner on the books of Trinity College, Cambridge, but merely that by graduating he might be called two years earlier.

He read in the chambers of Francis Buller (afterwards Mr Justice Buller) and George Wood, and was called to the bar on 3 July 1778. His success was immediate and brilliant. An accident was the means of giving him his first case, "Rex v. Baillie", in which he appeared for Captain Thomas Baillie, the lieutenant-governor of Greenwich hospital, who had published a pamphlet animadverting in severe terms upon the abuses which Lord Sandwich, the First Lord of the Admiralty, had introduced into the management of the hospital, and against whom a rule had been obtained from the court of kings bench to show cause why a criminal information for libel should not be filed. Erskine was the junior of five counsel; and it was his good fortune that the prolixity of his leaders consumed the whole of the first day, thereby giving the advantage of starting afresh next morning.

He made use of this opportunity to deliver a speech of wonderful eloquence, skill and courage, which captivated both the audience and the court. The rule was discharged, and Erskines fortune was made. He received, it is said, thirty retainers before he left the court. In 1781 he delivered another remarkable speech, in defence of Lord George Gordon's speech which gave the death-blow to the doctrine of constructive treason. In 1783, when the Coalition ministry came into power, he was returned to Parliament as member for Portsmouth. His first speech in the House of Commons was a failure; and he never in parliamentary debate possessed anything like the influence he had at the bar. He lost his seat at the dissolution in the following year, and remained out of parliament until 1790, when he was again returned for Portsmouth. But his success at the bar continued unimpaired.

In 1783 he received a patent of precedence. His first special retainer was in defence of Dr William Davies Shipley, dean of St Asaph, who was tried in 1784 at Shrewsbury for seditious libel for publishing "Principles of Government, in a Dialogue between a Gentleman and a Farmer". Erskine's successful defence gave rise to the Libel Act 1792, laying down the principle that it is for the jury, and not for the judge to decide the question whether or not a publication is a libel. In 1789 he was counsel for John Stockdale, a bookseller, who was charged with seditious libel in publishing a pamphlet in favor of Warren Hastings, whose trial was then proceeding; and his speech on this occasion, probably his greatest effort, is a consummate specimen of the art of addressing a jury. Three years afterwards he brought down the opposition alike of friends and foes by defending Thomas Paine, author of "Rights of Man", holding that an advocate has no right, by refusing a brief, to convert himself into a judge.

As a consequence he lost the office of attorney-general to the Prince of Wales, to which he had been appointed in 1786; the prince, however, subsequently made amends by making him his chancellor. Among Erskine's later speeches may be mentioned those for Horne Tooke and the other radicals accused of treason, and that for James Hadfield, who was accused of shooting at the king. On the accession of the Grenville ministry in 1806 he was made Lord Chancellor, an office for which his training had in no way prepared him, but which he fortunately held only during the short period his party was in power. Of the remainder of his life it would be well if nothing could be said. Occasionally speaking in parliament, and hoping that he might return to office should the prince become regent, he gradually degenerated into a state of useless idleness. Never conspicuous for prudence, he aggravated his increasing poverty by an unfortunate second marriage.

His first wife had died in 1805, and he married at Gretna Green a Miss Mary Buck. The date of this marriage is not definitely known. Once only-in his conduct in the case of Queen Caroline does he recall his former self. He died at Almondell, Linlithgowshire, on 17 November 1823, of pneumonia, caught on the voyage to Scotland.

Erskine's great forensic reputation was, to a certain extent, a concomitant of the numerous political trials of the day, but it was also due to his impassioned eloquence and undaunted courage, which so often carried audience and jury and even the court along with him. As a judge he did not succeed; and it has been questioned whether under any circumstances he could have succeeded. For the office of Chancellor he was plainly unfit. As a lawyer he was well read, but by no means profound. His strength lay in the keenness of his reasoning faculty, in his dexterity and the ability with which he disentangled complicated masses of evidence, and above all in his unrivalled power of fixing and commanding the attention of juries. To no department of knowledge but law had he applied himself systematically, with the single exception of English literature, of which he acquired a thorough mastery in early life, at intervals of leisure in college, on board ship, or in the army. Vanity is said to have been his ruling personal characteristic; but those who knew him, while they admit the fault, say that in him it never took an offensive form, even in old age, while the singular grace and attractiveness of his manner endeared him to all with whom he came in contact.

By his first wife he had four sons and four daughters. His eldest son, David Montagu (1776-1855), was a well-known diplomatist; his second son, Henry David (1786-1859), was dean of Ripon; and his third son, Thomas (1788-1864), became a judge of the court of common pleas. By his second wife he had one son, born in 1821.

In 1772 Erskine published "Observations on the Prevailing Abuses in the British Army", a pamphlet which had a large circulation, and in later life, "Armata", an imitation of Gulliver's Travels.

Further reading

* 'Thomas Erskine Trial by Jury' by John Hostettler. Chichester (England) 1996: Barry Rose Law Publishers Ltd. ISBN 1872328237

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*1911