Mr. Erskine’s course was as rapid as it was brilliant. In the following term, Captain Baillie, Lieutenant-Governor of Greenwich Hospital, was prosecuted for an alleged libel on other officers of that establishment, contained in a pamphlet written to expose the abuses which existed there, and bearing heavily on the character of the Earl of Sandwich, then First Lord of the Admiralty. It is believed that on this occasion Mr. Erskine made his first appearance in court. His speech was characterized by great warmth and eloquence, and a most fearless assertion of matters not likely to be palatable either to the Court or the Government. And this is the more worthy of notice, because it shows that the boldness which he afterwards displayed in causes more nearly connected with the liberties of England, was not the safe boldness of a man strong in professional reputation, and confident in his experience and past success, but the result of a fixed determination to perform, at all hazards, his whole duty to his client. The best testimony to the effect of this speech is to be found in the anecdote, that thirty briefs were presented to him by attorneys before he left the court.
We must hasten very briefly through the events of Mr. Erskine’s life to make room for speaking at somewhat more length of a very few of his most remarkable performances. He rose at once into first rate junior business in the Court of King’s Bench, and received a patent of precedence in May 1783, having practised only for the short space of five years. He belonged to the Home Circuit in the early part of his professional life; but soon ceased to attend it, or any other, except on special retainers, of which it is said that he received more than any man in his time or since.
In his political life he was a firm adherent of Mr. Fox: but his success in Parliament, which he entered in 1783 as member for Portsmouth, was not commensurate with the expectations which had been raised upon the brilliant powers of oratory which he had displayed at the bar. On attaining his majority in 1783, the Prince of Wales appointed Mr. Erskine, with whom he lived in habits of intimacy, to be his Attorney-General. This office he was called on to resign in 1792, in consequence of his refusing to abandon the defence of Paine, when he was prosecuted for a libel, as author of the ‘Rights of Man:’ and his removal, though not a solitary, is fortunately a rare instance in modern times, of an advocate being punished for the honest discharge of his professional duties. Five years afterwards he conducted the prosecution of the ‘Age of Reason;’ and in 1802 he was appointed Chancellor of the Duchy of Cornwall. On the formation of the Grenville administration, in 1806, he was appointed Chancellor of Great Britain, and raised to the peerage, by the title of Baron Erskine, of Restormel Castle in Cornwall. The short period during which he presided in the Court of Chancery, makes it difficult to estimate how far his extraordinary powers of mind, and in particular the eminently legal understanding which he possessed, would have enabled him to overcome the difficulties of so new a situation. But his judgments have, generally speaking, stood the test of subsequent investigation; and his admirable conduct in the impeachment of 1806, over which he presided as Lord High Steward, uniting the greatest acuteness and readiness with singular firmness of purpose, and all that urbanity which neither in public nor in private life ever quitted him for an instant, may be said to have restored to life a mode of trial essential to our constitution, though discredited by the vexatious procrastination which had characterized the last instance of its use.
On the dissolution of the Grenville ministry, which occurred about a year after its formation, Lord Erskine retired in a great degree from public life. In 1808 he took an active share in opposing the measure of commercial hostility, so well known under the name of the Orders in Council, and still so deeply felt: and his speech against the Jesuits’ Bark Bill, which was not reported, is said to have been worthy of his most celebrated efforts, both for argument and eloquence. In 1809 he introduced into the House of Lords a bill for the prevention of cruelty to animals, which passed that branch of the legislature, but was thrown out by the Commons. The part, too, which he took upon the memorable proceedings of 1820, relative to the Queen’s trial, will long be remembered, marked as it was by all the highest qualities of the judicial character: and his arguments upon the Banbury case a few years before, only leave a regret that he did not devote more of his leisure to the legal business of the House of Lords.
After his retirement, Lord Erskine occupied himself occasionally in literary pursuits. In this period he composed the Preface to Mr. Fox’s Speeches, and the political romance of Armata. His only other written work of importance is a pamphlet, entitled ‘View of the Causes and Consequences of the War with France,’ which appeared in 1797, and ran through the extraordinary number of forty-eight editions. But he is not to be considered as a literary man: on the contrary, it is one of the many singularities in his history, that with a scanty stock of what is usually called literature, he should have been one of our most purely classical speakers and writers. His study was confined to a few of the greatest models; and these he almost knew by heart.
The later years of his life were harassed by pecuniary embarrassment, arising partly from the loss of his large professional income, inadequately replaced by a retiring pension of £4000; and partly from an unfortunate investment of the fruits of his industry in land, which yielded little return when the period of agricultural depression arrived. His first wife died in 1805: and an ill-assorted second marriage, contracted much later in life, is supposed to have increased his domestic disquietudes, as it certainly injured his reputation, and gave pain to his friends. He was seized with an inflammation of the chest while travelling towards Scotland, and died at Almondale, his brother’s seat, near Edinburgh, November 17, 1823. Immediately after his decease, the members of that profession of which he had been at once the ornament and the favourite, caused a statue of him to be executed. When the marble was denied admittance within those walls which had so often been shaken by the thunder of his eloquence, they placed it in the hall of Lincoln’s Inn, where he had presided as chancellor; a lasting monument to those who study the law, that subserviency is not necessary to advancement, and that they will be held in grateful remembrance by their professional brethren, who boldly uphold the liberties of their country.
In speaking, which we can do very briefly, of Lord Erskine’s professional merits, our attention is directed to those of his speeches which bear on two great subjects, the Liberty of the Press, and the doctrine of Constructive Treason, not merely because they embrace his most laboured and most celebrated efforts, nor for the paramount importance of these subjects in a constitutional point of view; but also because we possess a collection of those speeches corrected by himself, while of the numberless arguments and addresses delivered on other subjects during a most active period of twenty-eight years, but very few have been authentically reported. From those which are preserved, the rising generation can form but an inadequate idea of this extraordinary man’s power as an advocate; such is said, by those who yet remember him, to have been the witchery of his voice, eye, and action; such his intuitive perception of that which at the instant was likely to have weight with a jury. His peculiar skill in this respect is thus described by a distinguished writer in the Edinburgh Review, in commenting upon a brilliant passage, which we shall presently have occasion to quote. “As far as relates to the character of Lord Erskine’s eloquence, we would point out as the most remarkable feature in this passage, that in no one sentence is the subject, the business in hand, the case, the client, the verdict, lost sight of; and that the fire of that oratory, or rather of that rhetoric (for it was quite under discipline), which was melting the hearts and dazzling the understandings of his hearers, had not the power to touch for one instant the hard head of the Nisi Prius lawyer, from which it radiated; or to make him swerve, by one hair’s breadth even, from the minuter details most befitting his purpose, and the alternate admissions and disavowals best adapted to put his case in the safest position. This, indeed, was the grand secret of Mr. Erskine’s unparalleled success at the English bar. Without it he might have filled Westminster Hall with his sentences, and obtained a reputation for eloquence, somewhat like the fame of a popular preacher or a distinguished actor: but his fortunes,—aye, and the liberties of his country,—are built on the matchless skill with which he could subdue the genius of a first rate orator to the uses of the most consummate advocate of the age.”—(Edinburgh Review, vol. xvi. p. 116–7, 1810.)
Mr. Erskine’s speeches against the doctrine of Constructive Treason were delivered in behalf of Lord George Gordon, when accused of high treason as the ringleader of the riots in 1780, and in behalf of Messrs. Hardy and Horne Tooke, when attacked by the whole weight of Government in 1794. In the first of these he begins by laying down broadly and distinctly the law of treason, as defined by the celebrated statute of Edward III. He proceeds, carefully avoiding to offend the probable temper of the jury by asserting either the prudence or legality of Lord George Gordon’s conduct, to show the total failure of evidence to bring his intentions within the scope of the act; the utter want of pretence for assuming that he had levied war on the King, the crime charged in the indictment; and the utter want of proof to connect him, or the Protestant Association, of which he was chairman, with the outrages committed by a rabble, insignificant alike in numbers and character. He enters into a minute examination of the crown evidence; lays bare the infamy of one witness; exposes the forced constructions by which alone any legal or moral guilt can be attached to his client; and, warming in his subject, breaks out into an appeal to the jury, the effect of which is said to have been electric. And it has been justly observed, that by such an effect alone could the boldness of the attempt have been justified: failure would have been destruction. The eloquence of this speech is even less remarkable than the exquisite judgment and professional skill by which that eloquence is controlled.
In the State Trials of 1794, the prisoners, it is well known, were proceeded against separately. Hardy’s turn came first. They were charged with compassing the death of the King, the evidence of this intention being a conspiracy to subvert by force the constitution of the country, under pretence of procuring, by legal means, a reform in the House of Commons. It must be evident to every one that this was stretching the doctrine of constructive treason to the utmost: yet Parliament had passed a bill, declaring in the preamble that such a conspiracy did actually exist; and this being asserted on such high authority, and no doubt existing of the prisoners being deeply engaged in the design to procure a reform in Parliament, they came to their trial under the most serious disadvantages. On this occasion, as in defence of Lord George Gordon, Mr. Erskine began by explaining the law of treason, under the statute of Edward III. He showed the strictness with which it had been defined and limited by the most eminent constitutional lawyers; and argued, that granting the intention to hold a general convention, with the view of obtaining by that means a reform in Parliament; granting even that this amounted to a conspiracy to levy war for that purpose, still the offence would not be the high treason charged by the indictment, unless the conspiracy to levy war were directly pointed against the King’s person. And that there was no want of affection for the King himself, appeared fully even from the evidence for the prosecution. He maintained that the clearest evidence should be required of the evil intention, especially when so different from the open and avowed object of the prisoners. He proceeded to show that their ostensible object, so far from necessarily involving any evil designs, was one which had been advocated by the Earl of Chatham, Mr. Burke, Mr. Pitt himself; and that the very measures of reform which it was sought to introduce, had been openly avowed and inculcated by the Duke of Richmond, then holding office in the ministry of which Mr. Pitt was chief. Mr. Hardy, Mr. Tooke, and Mr. Thelwall were severally and successively acquitted, and all men now confess that to the powers and the courage of this matchless advocate in that day of its peril, the preservation of English liberty must be mainly ascribed. The other prosecutions were then abandoned.
Mr. Erskine’s powerful and fearless support of the liberty of the subject on all occasions rendered him especially sought after by all persons accused of political libels; and a large proportion of his most important speeches are on these subjects. The earliest reported, and for their consequences the most remarkable, are the series of speeches which he delivered in behalf of the Dean of St. Asaph, in 1784. Of the merits of the case we have not room to speak: but it is important for the influence which it had in determining the great question, whether in prosecutions for libel, the jury is to judge of fact alone, or of law and fact conjointly. For many years it had been the doctrine of the courts, that juries had no cognizance of the nature of an imputed libel, beyond ascertaining how far the meaning ascribed in the indictment to passages charged as libellous was borne out by evidence; the truth of these, and the fact of the publication being ascertained, it was for the judge to determine whether the matter were libellous or no. This doctrine was controverted by Mr. Erskine in his speech for the Dean of St. Asaph, and maintained by the judge who tried the case; and on the ground of misdirection, Mr. Erskine moved for a new trial. On this occasion he went into an elaborate argument to prove that it was the office of the jury, not of the judges, to pronounce upon the intention and tendency of an alleged libel; and to him is ascribed the honour of having prepared the way for the Libel Bill, introduced by Mr. Fox in 1792, and seconded by himself, in which the rights and province of the jury are clearly defined, and the position established, for which he, in a small minority of his professional brethren, had contended. This was a triumph of which the oldest, and most practised lawyer might have been proud; it is doubly honourable to one young in years, and younger in professional experience.