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Thomas Erskine: Advocate of Freedom

JULY 01, 1989 by SEAN GABB

Mr. Gabb, a civil servant in London, writes for several British journals.

Though largely now forgotten, the name of Thomas Erskine (1750-1823) deserves a place in the heart of everyone who values freedom and the rule of law. But for his resolute stand in a moment of crisis, the sub sequent course of English history might well have been very different—and very much less an inspiration to other peoples.

I speak of England, though Erskine, in fact, was a Scotsman. He was born the youngest son of the tenth Earl of Buchan. His father’s title was grand, but his life was otherwise. The family lived, on £200 a year, in an upper apartment in one of the less fashionable areas of Edinburgh.

Taught at home, and then in various local schools; Erskine received what, by the standards of his day, was a patchy education. From his earliest boyhood, he read both widely and deeply in the English classics. But his Latin was never more than moderate, and he had no Greek. For a while, he studied mathematics and natural philosophy at St. Andrews University, but left before he could matriculate.

Though he wished to enter one of the professions, his father was too poor to assist him. Unable even to afford a commission in the army, in March 1764 he joined the navy as a midshipman aboard the Tartar. He sailed at once for the West Indies, and didn’t see Scotland again until he was an old man.

He passed four years stationed in the West Indies, where he continued to read widely. He left the navy on falling to gain a promotion, and, his father now dead, laid out his entire legacy on a commission in the army. About this time he mar-fled. The next two years he spent with his wife on garrison duty on the island of Minorca, then a British possession.

In 1772 he went on leave to London. There, through his noble connections and engaging manner, he gained easy entry into polite society. He became acquainted with Samuel Johnson, James Boswell, Edmund Burke, Edward Gibbon, and the other great names of what was perhaps the most brilliant age of English prose. Shortly after, however, he made an acquaintance no less grand, but of infinitely greater importance to his future career.

One day, acting on a whim, he strolled into a courtroom where Lord Chief Justice Mansfield was presiding. Mansfield no sooner looked on Erskine than was captivated by his appearance. He went so far as to invite the young man to sit beside him on the bench and have the case in progress explained. His interest aroused, Erskine decided to take to the law. He enrolled in one of the Inns of Court, which are the ancient law schools situated on the north side of the Thames between the cities of London and Westminster. In spite of financial hardship and a growing family, he pressed forward with his studies, being called to the English bar in July 1778.

Within a few months, poverty was behind him. This occurred quite by chance. One Thomas Bail-lie had accused Lord Sandwich, a Government minister, of corruption. Sandwich began a suit for criminal libel—a type of civil action that could end not only in damages but also in imprisonment. Out for an evening walk, Erskine was caught in a rain shower. He took refuge at the house of a friend, where Baillie was part of the company sitting down to dinner. The two struck up a friendly conversation. The next day, Baillie retained Erskine as one of his defending counsel.

The trial opened badly. Baillie’s other counsel had advised settling out of court. Told by Baillie to fight the case to a finish, they used up an entire day in raising fine points of law. Next day, as the Solicitor General was about to reply, Erskine got to his feet. He found courage, he later said, by thinking of his children about him, plucking at his gown and crying for bread. In any event, he made a ferocious, if not entirely regular, attack on Lord Sandwich. His eloquence and beating were such as to throw the court almost into a trance of amazement. Against all expectations, Baillie won. Erskine had achieved instant fame. Work flooded in, and he was a made man.

In 1779, he defended Admiral Lord Keppel on a charge of incompetence in the face of the enemy. (Great Britain at this time was at war with its American colonies and a coalition of European powers.) His defense succeeded, and he was given £1,000 by Keppel, an enormous fee.

Two years later, he defended Lord George Gordon on a charge of high treason. Gordon, whose mental state varied between the eccentric and the insane, had raised the London mob against the Government for having brought in a bill relieving Roman Catholics from some obsolete penal laws. Crying “No Popery,” the mob had gone on a three-day looting and burning spree, which came to an end only with the arrival of armed troops diverted from embarking for the American War. Gordon’s fate seemed assured. The court had sat all day and all evening, and, when Erskine opened to the jury, it was past midnight But his speech, together with his manner of delivery, was so persuasive that he secured Gordon a complete acquittal.

Erskine continued his spectacular progress through the 1780s. He specialized in commercial law and—there being no regular divorce law until 1857—actions for adultery, or what then was called “criminal conversation.” In 1783, Lord Mansfield’s influence ever behind him, he was made a King’s Counsel, receiving the coveted silk gown at an unusually early age. In the same year, he was appointed Attorney General to the Prince of Wales, a personal friend of his. By 1791, his annual income had reached an incredible £10,000. He was the highest paid counsel in the history of the English bar. It is not, however, on these successes that his claim to immortality rests.

The French Revolution

The French Revolution is an event too well known to need retelling. Everyone knows how it began with the fairest hopes, and slid into the frenzied bloodbath of the Terror. Certainly, the Old Regime was radically bad, and, when its financial collapse in 1788 showed the world exactly how bad, it was plain that only drastic reconstruction would do. But, of all conceivable groups, what became the French political class was perhaps the least suited to carry through any kind of reconstruction. Its collective head was stuffed with theories of absolute natural rights, applicable without regard to circumstances. As for practical wisdom, there was none. No institution that had existed before 1789 was left standing.

The results perhaps were inevitable. An established order, whatever its intrinsic merit, usually commands a certain respect. New ones have no such advantage. Approval depends on estimates of personal benefit. If everyone approves, all is well and good. But anyone who disapproves has no restraining sense of loyalty. Given enough disapproval, the seeds are there for civil war. So it was in France. What consensus there was broke down over reform of the Church. At the same time, relations with the other European states drifted into war. This gave the extremists their chance, and what they called saving the Revolution involved butchering 370,000 French civilians.

The effect of this outside of France was to kill the European Enlightenment stone dead. For nearly half a century, it had been increasingly the fashion among the continental monarchies to preach, if not always to practice, a rather timid liberalism. After 1789, the mood changed. If as a practical doctrine the Rights of Man were a failure, their abstractness made them supremely portable. Wherever there were intellectuals able to read French, the revolutionary doctrines found an audience—and there were governing classes ready to take fright. Censorships were toughened, spies and informers encouraged, secret police established or reformed.

The intellectual tone of the old age had been set, in large degree, by Voltaire and his followers. The intellectual tone of the new, when it finally emerged, was set by the sonorous, if vapid, Chateaubriand, by the fanatical de Maistre, by the various Germans. Unless we are to see the metric system as sufficient reward, the French Revolution must be accounted an unmitigated disaster for European civilization.

The reaction in England, if less extreme than elsewhere, was nevertheless considerable. For some 30 years there had been a movement within the British Dominions dedicated to making government more responsive to the wishes of the governed. Its American branch had grown powerful enough to bring about a successful war of independence.

Efforts in England were concentrated on a reform of Parliament. The electoral system had evolved over three or four centuries, and now showed no obvious rationality. Manchester and Sheffield, towns fast growing wealthier and more populous than many foreign capitals, were unrepresented. Old Sarum, with seven electors, and Gatten, with two, each returned two Members.

Elections were usually an occasion for spectacular corruption. In some places, candidates bid openly against each other for votes. In others, seats were the virtual property of the wealthiest local family. The reform movement was widespread. In 1785, the Prime Minister himself, the younger William Pitt, introduced a modest Bill to redistribute seats. It failed, but the general idea, before 1789, seemed to be on the practical political agenda.

Events in France at first encouraged the reform movement. Here, after all, was a people casting off the chains of a thousand years, and advancing further toward liberty than the English had moved in a century. In their enthusiasm, the more radical reformers not only began a habit of fraternal correspondence with the French political clubs, but sometimes of following the new French habit of calling each other Citizen this and Citizen that.

This, however, was about the limit of approval for things French. Leaving aside an insignificant minority, the reformers knew that a revolution in England was neither necessary nor possible. Everything they wanted already was in the Constitution, only waiting until successful persuasion could bring it out. But, French veneer or none, advocacy of reform was fast going out of fashion.

Seeking Out “The Enemy Within”

Open hostility was first articulated by Edmund Burke. He saw on what wretched foundations the new order in France stood. In exposing them, he created the first great masterpiece of English conservative thought. As his predictions of the course of French events came true, the possessing classes took alarm. The reformers increasingly fell under suspicion of plotting revolution. After France declared war on England early in 1793, alarm ripened into panic, and the cry went up for suppression.

Pitt’s Tory government found all this highly convenient. Arguments over France and domestic reform already had split the Whig opposition. Giving in to public opinion would only consolidate the Tory position. The radical reformers already were harried and spied upon. Now, defeat of “the enemy within” became a priority.

In the middle of 1794, the Government pounced. The reform leaders were arrested and their papers seized. The Habeas Corpus Act was suspended. Charges were made of high treason. This was defined as having distributed the works of Tom Paine and the other radical philosophers, of having corresponded with the French Assembly before the outbreak of war—and therefore of being men of violent intention.

Anywhere else in Europe, the accused no sooner would have come under suspicion than been arrested and thrown without charge into prison. Any trials would have been held in secret, and for no better purpose than gathering names for other arrests. Those arrested in Scotland, for example, which had a legal system based on Roman law, and where juries were chosen from the bench, had the merest pretenses of trials.

In England, however, the accused had full benefit of the law. They were allowed counsel. Packing juries was difficult. Court proceedings were reported in the press. But, as some modern instances bear witness, even the best safeguards of justice can be ineffective against a general panic. By 1794, the mob had turned “patriotic,” and assaulted anyone so much as suspected of radical intentions. There was perhaps only one man alive capable of taking on the prosecutions for high treason and defeating them.

Erskine was a Whig by birth and by conviction, and the close friend of Whig leaders Charles Fox and Richard Brinsley Sheridan. He had entered Parliament in 1783. Strangely enough, he never shone there. In court matchlessly eloquent, in the Commons, he was a wretched speaker—on one occasion even breaking down so badly that another had to continue for him. But he contrived to serve his ideals at the bar. In libel suits, he continued to submit that the question of whether or not a publication were libelous was for the jury and not the judge to decide. This led to the passing of Fox’s Libel Act in 1792.

In Defense of Tom Paine

Erskine had visited France in 1790, and returned to England favorably impressed by the Revolution. His opinion of the Revolution changed over time, but his hatred of persecution never wavered. In 1792, he undertook the defense of Tom Paine on a charge of seditious libel. The second part of Paine’s Rights of Man had come out earlier that year. The first part was left to circulate freely. But its sequel was alleged to insult the Constitution and the Royal Family, and moves were begun to suppress it. The trial began in December, the Attorney General prosecuting.

Erskine’s speech for the defense had been a month in preparation, and was the greatest he had delivered so far. “[E]very man,” he asserted, “not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, 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.”[1]

For all its magnificence, his speech was an utter failure. He was heckled throughout by the jury. As soon as he sat down, the foreman rose and stopped the trial. The Attorney General could reply if he wished, the foreman said contemptuously. But nothing more was required. A guilty verdict was brought in immediately. For his part in the proceedings, Erskine was dismissed from the Prince of Wales’ service.

He had no better success with his defense the next year of John Frost, a lawyer who had uttered seditious words while drunk. Again, the jury convicted, if, in some other cases, he defeated the Crown, the balance was tilting steadily against the defense in state trials. Erskine knew, when he agreed to defend the reform leaders, that this was a last stand. If he should fail, and the accused be convicted of high treason, the whole principle of limited constitutional government would come into doubt.

The trials opened on October 28, 1794, at the Old Bailey, Lord Chief Justice Eyre presiding. First for hearing was the case against Thomas Hardy. A shoemaker by occupation, Hardy was a comfortable, quiet man just entering middle age. Though not a great writer or speaker, he had helped found a group called the London Corresponding Society in 1791. Its end was parliamentary reform. For this, he stood accused of corn-passing the King’s death.

Sir John Scott, the previous year made Attorney General, and subsequently known as Lord Chancellor Eldon, prosecuted. He opened with a tremendous speech nine hours long. Hardy’s acts were examined in minute detail, and treasonable intents deduced from them—a desire to import into England all the squalid horrors of the French Terror. Seized papers were read out, and the worst construction put on them. Scott then examined the Crown witnesses—Government spies, informers telling evidence as they were paid. Set out over five days, the prosecution case had an obviously strong effect on the jury.

Erskine opened for the defense in what seemed an even weaker position than in Paine’s case two years before.

His speech is beyond description. It must be read. He tore the Crown’s case in pieces. Treason, he reminded the jury, was strictly to plot against the King’s life, not simply to offend his government. Much had been said about Hardy’s “further intentions” beyond reform, but a court of law had to proceed on facts, not on probabili ties. “I am not vindicating anything that can promote disorder in the country,” Erskine said, “but I am maintaining that the worst possible disorder that can fall upon a country is, when subjects are deprived of the sanction of clear and positive laws.”[2]

The seized papers, Erskine pointed out, indicated a desire to reform Parliament, not to overthrow it. As for the oral evidence, it was worthless. Erskine paid particular attention to the testimony of George Lynam, a Government spy: “He professed to speak from notes, yet I observed him frequently looking up to the ceiling. When I said to him, ‘Are you now speaking from a note? Have you got any note of what you are now saying?’ he answered, ‘Oh no, this is from recollection.’ Good God Almighty! Recollection mixing itself with notes in a case of high treason.”[3] He spoke for seven hours, his voice finally dying away to a near whisper. He had done his absolute best, and it was enough. All that remained of the trial was secondary. The jury was out for three hours, but returned with an acquittal.

The Government persevered. John Horne Tooke was tried next. An elderly clergyman, he was a friend and colleague of the Whig leaders, and had been working for parliamentary reform for 20 years. That he could have been a traitor was absurd. The proceedings sank from high drama to farce. Erskine let Tooke largely conduct his own defense. At one point, the Prime Minister was compelled to attend on a writ of subpoena. Had he and Tooke once collaborated in bringing forward a reform bill? Pitt twisted and equivocated. The public gallery rocked with laughter. It was a very sullen William Pitt who went back to Downing Street and the conduct of the war against France. The jury was out eight minutes, then returned another acquittal.

Still the Government persevered. John Thelwall, a young agitator, was the next to go on trial. He genuinely admired the French extremists. Had he been tried first, rather than Hardy, the prosecutions might have gone differently. But he came after, and Erskine already had shattered all belief in the Crown case. The Lord Chief Justice is said to have slept through the prosecution speech. The jury acquitted nearly automatically. The other radicals were released, all charges dropped. Certain of gaining convictions, the Government had drawn up 800 arrest warrants, of which 300 were signed. These were now scrapped.

Hardy’s defense costs amounted to £25. In this, as in the other two cases, Erskine had given his services free of charge.

He lived nearly another 30 years, but his later career was an anticlimax. He became Lord Chancellor in 1806, but, ignorant of equity law, failed in the post. Thereafter, he passed his time in often unhappy idleness. His total earnings from advocacy had amounted to £150,000. His Chancel-lot’s pension was £4,000 a year. But, ever careless of money, Erskine invested much of his fortune in very bad American stock, and lost every penny. He was reduced first to embarrassment, then to actual poverty. He died in Scotland, on a visit to his elder brother, the eleventh Earl, and is buried in the family tomb at Uphall, Linlithgow.

But whose life would not be an anticlimax after the glories of 17947 The Government remained firmly in power. It brought in new laws against conspiracy and seditious libel. It did its considerable best to suppress the reform movement. It had also learned that, whatever the situation abroad—r even in the other two kingdoms of the British Crown—power in England was confined within certain impassable limits. Panicked by the example of France, the Government had opened the Pandora’s box of proscription. Singlehandedly, Thomas Erskine slammed that box shut so tightly that it has never yet been reopened. The debt owed him by the English people is incalculable.


1.   A Complete Collection of State Trials, various editors, London, 1809-1826, vol. xxiii, col. 414-415.

2.   Ibid., vol. xxiv, col. 936.

3.   Ibid., col. 962.

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July 1989

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