Much more than an average or altogether desirable amount of amiability has fallen to the reader who can refrain from a malicious smile, when he is informed by reliable history that Lord Loughborough (no mean lawyer or inefficient judge), gave utterance to so much bad law, as Chairman of Quarter Sessions in canny Yorkshire, that when on appeal his decisions were reversed with many polite expressions of sincere regret by the King's Bench, all Westminster Hall laughed in concert at the mistakes of the sagacious Chief of the Common Pleas.
But no lawyer, brilliant or dull, has been more widely ridiculed for incompetence than Erskine. Sir Causticus Witherett, being asked some years since why a certain Chancellor, unjustly accused of intellectual dimness by his political adversaries and by the uninformed public, preferred his seat amongst the barons to his official place on the woolsack, is said to have replied: "The Lord Chancellor usually takes his seat amongst the peers whenever he can do so with propriety, because he is a highly nervous man, and when he is on the woolsack, he is apt to be frightened at finding himself all alone—in the dark." As soon as Erskine was mentioned as a likely person to be Lord Chancellor, rumors began to circulate concerning his total unfitness for the office; and no sooner had he mounted the woolsack than the wits declared him to be alone and in the dark. Lord Ellenborough's sarcasm was widely repeated, and gave the cue to the advocate's detractors, who had little difficulty in persuading the public that any intelligent law-clerk would make as good a Chancellor as Thomas Erskine. With less discretion than good-humor, Erskine gave countenance to the representations of his enemies by ridiculing his own unfitness for the office. During the interval between his appointment and his first appearance as judge in the Court of Chancery, he made a jocose pretence of 'reading up' for his new duties: and whimsically exaggerating his deficiencies, he represented himself as studying books with which raw students have some degree of familiarity. Caught with 'Cruise's Digest' of the laws relating to real property, open in his hand, he observed to the visitor who had interrupted his studies, "You see, I am taking a little from my cruise daily, without any prospect of coming to the end of it."
In the autumn of 1819 two gentlemen of the United States having differed in opinion concerning his incompetence in the Court of Chancery—the one of them maintaining that the greater number of his decrees had been reversed, and the other maintaining that so many of his decisions had not endured reversal—the dispute gave rise to a bet of three dozen of port. With comical bad taste one of the parties to the bet—the one who believed that the Chancellor's judgments had been thus frequently upset—wrote to Erskine for information on the point. Instead of giving the answer which his correspondent desired, Erskine informed him in the following terms that he had lost his wine:—
"Upper Berkley Street, Nov. 13, 1819.
"Sir:—I certainly was appointed Chancellor under the administration in which Mr. Fox was Secretary of State, in 1806, and could have been Chancellor under no administration in which he had not a post; nor would have accepted without him any office whatsoever. I believe the administration was said, by all the Blockheads, to be made up of all the Talents in the country.
"But you have certainly lost your bet on the subject of my decrees. None of them were appealed against, except one, upon a branch of Mr. Thellusson's will—but it was affirmed without a dissentient voice, on the motion of Lord Eldon, then and now Lord Chancellor. If you think I was no lawyer, you may continue to think so. It is plain you are no lawyer yourself; but I wish every man to retain his opinion, though at the cost of three dozen of port.
"Your humble servant,
"Erskine.
"To save you from spending your money on bets which you are sure to lose, remember that no man can be a great advocate who is no lawyer. The thing is impossible."
Of the many good stories current about chiefs of the law who are still alive, the present writer, for obvious reasons, abstains from taking notice; but one humorous anecdote concerning a lively judge may with propriety be inserted in these pages, since it fell from his own lips when he was making a speech from the chair at a public dinner. Between sixty-five and seventy years from the present time, when Sir Frederick Pollock was a boy at St. Paul's school, he drew upon himself the displeasure of Dr. Roberts, the somewhat irascible head-master of the school, who frankly told Sir Frederick's father, "Sir, you'll live to see that boy of yours hanged." Years afterwards, when the boy of whom this dismal prophecy was made had distinguished himself at Cambridge and the bar, Dr. Roberts, meeting Sir Frederick's mother in society, overwhelmed her with congratulations upon her son's success, and fortunately oblivious of his former misunderstanding with his pupil, concluded his polite speeches by saying—"Ah! madam, I always said he'd fill an elevated situation." Told by the venerable judge at a recent dinner of 'Old Paulines,' this story was not less effective than the best of those post-prandial sallies with which William St. Julien Arabin—the Assistant Judge of Old Bailey notoriety—used to convulse his auditors something more than thirty years since. In the 'Arabiniana' it is recorded how this judge, in sentencing an unfortunate woman to a long term of transportation, concluded his address with—"You must go out of the country. You have disgraced even your own sex."