Henry, the second brother, was universally beloved and respected, and one of the most popular advocates at the Scottish Bar. He was twice Lord-Advocate for Scotland—on the second occasion under the Ministry of "All the Talents," when his younger brother was Lord Chancellor. He was famous in the Parliament House and outside of it for his witticisms, a selection of which will be given later.
Thomas, who became Lord Chancellor, obtained an unique influence while practising at the Bar, and, like his older brother, he was a universal favourite. "Juries have declared," said Lord Brougham, "that they have felt it impossible to remove their looks from him when he had riveted, and as it were fascinated, them by his first glance. Then hear his voice, of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness." Yet although he did not rely on wit, or humour, or sarcasm in addressing a jury, he could use them to effect in cross-examination. "You were born and bred in Manchester, I perceive," he said to a witness. "Yes."—"I knew it," said Erskine carelessly, "from the absurd tie of your neckcloth." The witness' presence of mind was gone, and he was made to unsay the greatest part of his evidence in chief. Another witness confounding 'thick' whalebone with 'long' whalebone, and unable to distinguish the difference after counsel's explanation, Erskine exclaimed, "Why, man, you do not seem to know the difference between what is thick or what is long! Now I tell you the difference. You are thick-headed, and you are not long-headed."
Lord Erskine's addiction to punning is well known, and many examples might be cited. An action was brought against a stable-keeper for not taking proper care of a horse. "The horse," said counsel for the plaintiff, "was turned into the stable, with nothing to eat but musty hay. To such the horse 'demurred.'"—"He should have 'gone to the country,'" at once retorted Lord Erskine. For the general reader it should be explained that "demurring" and "going to the country" are technical terms for requiring a cause to be decided on a question of law by the judge, or on a question of fact by the jury. Here is another. A low-class attorney who was much employed in bail-business and moving attachments against the sheriff for not "bringing in the body"—that is, not arresting and imprisoning a debtor, when such was the law—sold his house in Lincoln's Inn Fields to the Corporation, of Surgeons to be used as their Hall. "I suppose it was recommended to them," said Erskine, "from the attorney being so well acquainted 'with the practice of bringing in the body!'"
Perhaps one of his smartest puns he relates himself. "A case being laid before me by my veteran friend, the Duke of Queensberry—better known as 'old Q'—as to whether he could sue a tradesman for breach of contract about the painting of his house; and the evidence being totally insufficient to support the case, I wrote thus: 'I am of opinion that this action will not lie unless the witnesses do.'"
He was also fond of a practical joke. In answer to a circular letter from Sir John Sinclair, proposing that a testimonial should be presented to himself for his eminent public services, Lord Erskine replied:
"My dear Sir John,—I am certain there are few in this kingdom who set a higher value on your public services than myself; and I have the honour to subscribe"—then, on turning over the leaf, was to be found—"myself, your most obedient faithful servant,
"Erskine."
"Gentlemen of the jury," were his closing words after an impassioned address, "the reputation of a cheesemonger in the City of London is like the bloom upon a peach. Breathe upon it, and it is gone for ever."
Among many apocryphal stories told of expedients by which smart counsel have gained verdicts, this one respecting a case in which Mr. Justice Gould was the judge and Erskine counsel for the defendant is least likely of credit. The judge entertained a most unfavourable opinion of the defendant's case, but being very old was scarcely audible, and certainly unintelligible, to the jury. While he was summing up the case, Erskine, sitting on the King's Counsel Bench, and full in the view of the jury, nodded assent to the various remarks which fell from the judge; and the jury, imagining that they had been directed to find for the defendant, immediately did so.