The Honourable Thomas Erskine was the third son of David Earl of Buchan, a Scottish peer of ancient family and title, but reduced fortune. He was born in January 1748, and received the rudiments of his education, partly at the High School of Edinburgh, partly at the University of St. Andrews. But the straitened circumstances of his family rendered it necessary for him to embrace some profession at an early age; and he accordingly entered the navy as a midshipman in 1764. Not thinking his prospects of advancement sufficiently favourable to render his continuance in that service expedient, he exchanged it in the year 1768 for that of the army. In 1770 he married his first wife, Frances, the daughter of Daniel Moore, M.P. for Marlow; and soon after went with his regiment to Minorca, where he remained three years. Soon after returning to England he changed his profession again. It has been said that he took this step against his own judgment, and on the pressing entreaties of his mother, a woman of lofty and highly cultivated mind, the sister of Sir James Stewart, whose scientific writings, especially upon political philosophy, have rendered his name so famous, and the daughter of a well known Scotch lawyer and Solicitor-General of the same name. But it is certain that at this time he had acquired considerable celebrity in the circles of London society; and it is hard to suppose that he was not sensible of his own brilliant qualifications for forensic success. Whatever the cause, he commenced his legal life in 1775, in which year he entered himself as a student of Lincoln’s Inn, and also as a fellow commoner of Trinity College, Cambridge; not with a view to university honours or emoluments, but to obtain the honorary degree of M.A., to which he was entitled by his birth, and thereby to shorten the period of probation, previous to his being called to the bar. He gave an earnest, however, of his future eloquence, by gaining the first declamation prize, annually bestowed in his college. The subject which he chose was the Revolution of 1688. His professional education was chiefly carried on in the chambers of Mr. Buller and Mr. Wood, both subsequently raised to the bench. In Trinity term, 1778, he was called to the bar.

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.

Equal perhaps to those in importance, for it bore directly on the liberty of the press, and superior in brilliance of execution, is the speech in behalf of Stockdale, the bookseller, who was prosecuted for a libel on the House of Commons, in consequence of having published a pamphlet commenting on the articles of impeachment brought against Mr. Hastings, and containing some passages by no means complimentary to some portion of that honourable body. The fact of the publication being admitted, Mr. Erskine, agreeably to the provisions of the Libel Act, proceeded to address the jury on the merits of the work. It was his argument, that the tenor of the whole, and the intentions of the writer, were to be regarded; and that if these should be found praiseworthy, or innocent, the presence of a few detached passages, which, taken separately, might seem calculated to bring the House of Commons into contempt, were altogether insufficient to justify conviction. This speech may be selected as one of the finest examples of Mr. Erskine’s oratory, whether for the skill displayed in managing the argument, the justness of the principles, the exquisite taste with which they are illustrated and enforced, or the powerful eloquence in which they are embodied; and from this, in conclusion, we would extract one passage as a specimen of his powers. It is sufficient to state in introduction, that the pamphlet in question was a defence of Mr. Hastings, and that, among other topics, it urged the nature of his instructions from his constituents. Commenting on this, the orator proceeds in a strain which few persons, not hardened by long converse in affairs of state, will read without emotion, or without a deep sense of the justice of the sentiments, the gravity of the topics introduced.

“If this be a wilfully false account of the instructions given to Mr. Hastings for his government, and of his conduct under them, the author and publisher of this defence deserve the severest punishment, for a mercenary imposition on the public. But if it be true, that he was directed to ‘make the safety and prosperity of Bengal the first object of his attention,’ and that under his administration it has been safe and prosperous; if it be true that the security and preservation of our possessions and revenues in Asia were marked out to him as the great leading principle of his government, and that those possessions and revenues amidst unexampled dangers have been secured and preserved; then a question may be unaccountably mixed with your consideration, much beyond the consequence of the present prosecution, involving perhaps the merit of the impeachment itself which gave it birth; a question which the Commons, as prosecutors of Mr. Hastings, should in common prudence have avoided; unless, regretting the unwieldy length of their prosecution against him, they wished to afford him the opportunity of this strange anomalous defence. For although I am neither his counsel, nor desire to have any thing to do with his guilt or innocence, yet in the collateral defence of my client I am driven to state matter which may be considered by many as hostile to the impeachment. For if our dependencies have been secured, and their interests promoted, I am driven in the defence of my client to remark, that it is mad and preposterous to bring to the standard of justice and humanity, the exercise of a dominion founded upon violence and terror. It may, and must be true, that Mr. Hastings has repeatedly offended against the rights and privileges of Asiatic government, if he was the faithful deputy of a power which could not maintain itself for an hour without trampling upon both; he may and must have offended against the laws of God and nature, if he was the faithful Viceroy of an empire wrested in blood from the people to whom God and nature had given it; he may and must have preserved that unjust dominion over timorous and abject nations by a terrifying, overbearing, insulting superiority, if he was the faithful administrator of your government, which, having no root in consent or affection, no foundation in similarity of interests, nor support from any one principle which cements men together in society, could only be upheld by alternate stratagem and force. The unhappy people of India, feeble and effeminate as they are from the softness of their climate, and subdued and broken as they have been by the knavery and strength of civilization, still occasionally start up in all the vigour and intelligence of insulted nature. When governed at all, they must be governed with a rod of iron; and our empire in the east would long since have been lost to Great Britain, if civil skill and military prowess had not united their efforts, to support an authority which Heaven never gave, by means which it never can sanction.

“Gentlemen, I think I can observe that you are touched with this way of considering the subject, and I can account for it. I have not been considering it through the cold medium of books, but have been speaking of man and his nature, and of human dominion, from what I have seen of them myself among reluctant nations submitting to our authority. I know what they feel, and how such feelings can alone be repressed. I have heard them in my youth, from a naked savage, in the indignant character of a prince surrounded by his subjects, addressing the Governor of a British colony, holding a bundle of sticks in his hand, as the notes of his unlettered eloquence. ‘Who is it,’ said the jealous ruler over the desert, encroached upon by the restless foot of English adventure; ‘who is it that causes this river to rise in the high mountains, and to empty itself into the ocean? Who is it that causes to blow the loud winds of winter, and that calms them again in the summer? Who is it that rears up the shade of these lofty forests, and blasts them with the quick lightning at his pleasure? The same Being, who gave to you a country on the other side of the waters, and gave ours to us; and by this title we will defend it,’ said the warrior, throwing down his tomahawk on the ground, and raising the war-cry of his nation. These are the feelings of subjugated man all round the globe; and depend upon it, nothing but fear will control, where it is vain to look for affection.

“These reflections are the only antidotes to those anathemas of superhuman eloquence which have lately shaken these walls that surround us; but which it unaccountably falls to my province, whether I will or no, a little to stem the torrent of, by reminding you that you have a mighty sway in Asia which cannot be maintained by the finer sympathies of life, or the practice of its charities and affections. What will they do for you when surrounded by two hundred thousand men with artillery, cavalry, and elephants, calling upon you for their dominions which you have robbed them of? Justice may, no doubt, in such a case forbid the levying of a fine to pay a revolting soldiery; a treaty may stand in the way of increasing a tribute to keep up the very existence of the government; and delicacy for women may forbid all entrance into a zenana for money, whatever may be the necessity for taking it. All these things must ever be occurring. But under the pressure of such constant difficulties, so dangerous to national honour, it might be better perhaps to think of effectually securing it altogether, by recalling our troops and merchants, and abandoning our Oriental empire. Until this be done, neither religion nor philosophy can be pressed very far into the aid of reformation and punishment. If England, from a lust of ambition and dominion, will insist on maintaining despotic rule over distant and hostile nations, beyond all comparison more numerous and extended than herself, and gives commission to her Viceroys to govern them, with no other instructions than to preserve them, and to secure permanently their revenues; with what colour of consistency or reason can she place herself in the moral chair, and affect to be shocked at the execution of her own orders; adverting to the exact measure of wickedness and injustice necessary to their execution, and complaining only of the excess as the immorality; considering her authority as a dispensation for breaking the commands of God, and the breach of them only punishable when contrary to the ordinances of man.

“Such a proceeding, Gentlemen, begets serious reflections. It would be better perhaps for the masters and the servants of all such governments to join in supplication, that the great Author of violated humanity may not confound them together in one common judgment.”

These speeches, on constructive treason, and on subjects relating to the liberty of the press, fill four octavo volumes. A fifth was subsequently published, containing speeches on miscellaneous subjects; among which those in behalf of Hadfield and for Mr. Bingham are especially worthy of attention. The latter is one of the most affecting appeals to the feelings ever uttered. Hadfield is notorious for having discharged a pistol at George III. in Drury Lane Theatre. He was a soldier, who had been dreadfully wounded in the head, and other parts of the body; and no doubt could be entertained but that he was of unsound mind. Whether his insanity was of such a nature, that it could be pleaded in excuse for an attempt to murder, was a harder question to decide; and the speech in his behalf, besides many passages of much power and pathos, contains a masterly exposition of the principles by which a court of law should be guided in examining the moral responsibility of a person labouring under alienation of mind. Hadfield, we need hardly say, was acquitted.

No life of Lord Erskine has yet been written on a scale calculated to do justice to the subject. The fullest which we have seen is contained in the ‘Lives of British Lawyers,’ in Lardner’s CyclopÆdia: there is also a scanty memoir in the Annual Biography and Obituary, from which the facts contained in this sketch are principally derived.