Eighteenth-century Scottish jurist and historian Thomas Erskine (1750-1823) was noted for his contributions to British law, his spirited defense of American patriot Thomas Paine, and his support for the French Revolution.
The youngest son in a noble Scottish family, Thomas Erskine excelled at law and gained renown as one of the most eloquent orators of his day. He had a brief tenure in the British Parliament, but his most significant contributions lay in the area of commercial law, where he maintained a substantial practice. His historical significance was the result of his defense of the revolutionary ideals of the age and his support of freethinkers against King George III.
Naval and Military Training
Born in Edinburgh, Scotland, in 1750, Erskine was the third son of the tenth earl of Buchan. Despite their grand title, the Erskines lived on limited means; rather than an ancestral home, they lived in a flat in a middle-class area of Edinburgh. Thomas Erskine was not in line to inherit his father's title; his oldest brother, David, would become the 11th earl of Buchan. Seeking to regain some of the dignity of his ancestors, Thomas Erskine vowed to follow his other brother, Henry, into the practice of law. After getting a basic education in Latin and the English classics, Erskine decided to see the world, and at age 14 he went to sea as a midshipman aboard a Navy ship, the Tarter, sailing for the West Indies. He would not return to Scotland for 56 years.
Four years after joining the navy, in 1768, Erskine purchased a commission in the British army, using inheritance money given him after the death of his father. He also married, and his wife accompanied him on his assignments. While posted to the Spanish island of Minorca from 1770 to 1772, he passed his free time studying English literature. Like many educated young men of his generation, he also became interested in the philosophical writings of thinkers such as Voltaire, Jean-Jacques Rousseau, and others associated with the French Enlightenment. On leave to London in 1772, he ingratiated himself with many influential men, such as Samuel Johnson, Edmund Burke, and historian Edward Gibbon, using his noble birth, his good looks, and his conversational abilities to make his way into polite society.
Became a Successful Jurist
In 1775 Erskine resigned his commission in the British army and entered Lincoln's Inn and Trinity College, Cambridge, earning an honorary M.A. in 1778. Admitted to the bar the following year, he gained immediate success in court. A capable speaker with a solid grounding in commercial law, Erskine was an excellent debater, quick on his feet and with a ready wit. He also was a great lover of animals and became known for sometimes bringing his pet Newfoundland dog, Toss, into chambers, where the dog sat on a chair with its paws on the table.
Many of Erskine's early cases involved high-profile clients. After his successful defense of Captain Thomas Baillie, lieutenant governor of Greenwich Hospital, against Lord Sandwich's criminal charge of libel, Erskine became highly sought among the better class of accused. His successful defense of Admiral Lord Keppel in 1779 against charges of neglect of duty while in command of the British fleet off Ushant was followed by an equally well-publicized acquittal in the case of Lord George Gordon in 1781. Gordon, tried for high treason after leading a mob of 50,000 Protestant rioters to disrupt Catholic buildings and the home of the chief justice, escaped both the charge and the bill for over 180,000 pounds in damages, even though 21 of the 139 rioters arrested with Gordon were executed on similar charges.
Word of Erskine's legal triumphs quickly spread and he soon found himself propelled into the civil service. In 1783 he was appointed a king's counsel and member of Parliament for Portsmouth. Although his first appearance in Parliament was uninspired, he returned for several terms, serving intermittently from 1783 to 1806. He was appointed attorney general to the Prince of Wales in 1789.
Inspired by a visit to France in 1790 and his long-held Whig beliefs, Erskine joined the Friends of the People, a group formed by Charles Grey and several members of Parliament in April 1792. The goal of the group was to gain greater representation for English citizens in Parliament through peaceful means. In line with this goal, Erskine defended many people arrested on political grounds between 1793 and 1794.
Erskine's agreement to defend British-born American revolutionary Thomas Paine in 1793 cost the attorney his position with the Prince of Wales. Paine, who had fomented the uprising in England's North American colonies with his pamphlet Common Sense, returned to England in 1787. Four years later, when he published his pamphlet The Rights of Man in defense of the French Revolution, King George III moved to curb his influence. Paine's book was banned and its author arrested on the charge of sedition. Erskine successfully defended Paine in the case and another stemming from his subsequent publication, The Age of Reason, written while its author was in jail in France in 1794. In his first defense of Paine, Erskine quoted Burke and John Milton, recounted the history of the Glorious Revolution, and noted, as his core argument, the following: "That every man, not intending to mislead, but seeking to enlighten others with what his own reason and conscience … have dictated to him as truth, may address himself to the universal reason of a whole nation, either upon the subject of governments in general, or upon that of our own particular country;—that he may analyze the principles of its constitution,—point out its errors and defects,—examine and publish its corruptions,—warn his fellow citizens against their ruinous consequences, and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically defective, or sliding from their object by abuse.—All this every subject of this country has a right to do, if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasoning dictated by conscience."
English politician John Horne Tooke also needed Erskine's legal abilities after he was accused of treason. Tooke was a founding member of the London Corresponding Society, a group with the same aim as that of Friends of the People, and Erskine helped him win acquittal. Other political rebels Erskine aided included Scottish radical Thomas Hardy, a middle-aged shoemaker and associate of Tooke who was accused of conspiring to kill the king of England, and John Thelwall, a journalist and former tailor's apprentice who was acquitted of the charge of high treason in 1794 with Erskine's help.
Advanced Legal Theory
In addition to gaining a reputation as both a liberal and a defender of the constitution, Erskine also established a number of important legal precedents. In his 1798 defense of Hadfield, a man indicted for attempting to shoot George III, Erskine made a "destructive analysis of the current theory of criminal responsibility in mental disease," and his defense of the dean of St. Asaph resulted in a 1792 revision of the laws regarding libel.
In 1806 an ancient office was revived in his honor and Erskine was appointed chancellor to the Prince of Wales. He was also elevated to the peerage as 1st Baron Erskine. Despite such honors, he tired of public life and resigned from his position the following year. His decisions as chancellor were later published under the title Apocrypha. His other written works included a 1772 pamphlet on army abuses; a 1797 discussion of the war with France; Aramata, a political romance; a pamphlet in support of the Greeks; and several works of poetry.
Erskine's forensic abilities were unrivaled in the history of the English Bar. While he had a long and active legal career, it did not bring him great fortune, because he took many cases pro bono to defend political rights. After years of ill-advised investments and extravagant spending, Erskine was reduced to poverty by 1818. He returned to his family in Edinburgh in February 1820 at the age of 70 and was widely praised for his wit and character at a large public gathering. A strong supporter of the constitution despite his return to Scotland, Erskine remained loyal to Queen Caroline, consort of King George IV, despite the king's decision to divorce her on charges of adultery in 1821. He died in 1823 at the home of his brother, David Erskine, and was buried in the family's tomb in Linlithgow. As a fitting epitaph, Erskine was immortalized in the lines of the poem "The Author's Earnest Cry and Prayer," written by his friend and fellow Scot, Robert Burns: "Erskine a spunkie Norland billie." In legal circles, he remained known for many years as "England's foremost advocate."
Hostettler, John, Thomas Erskine and Trial by Jury, Barry Rose Law Publishers, 1996.
Gabb, Sean, "Thomas Erskine: Saviour of English Liberty," Libertine Alliance, http://freespace.virgin.net (May 11, 1997).
"Mr. Erskine's Speech in Defense of the Liberty of the Press," Cambridge and Oxford Free Speech Seminar/University of Arkansas Web site, http://wwwuark.edu/depts/cmminfo/cambridge/paine.defense.html (February 2, 2002).