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Thomas Erskine, first Baron Erskine (1750-1823)

This article was written by John Andrew Hamilton and was published in 1888

Thomas Erskine, the lord chancellor, was the youngest son of Henry David Erskine, tenth earl of Buchan, and was born, as he himself believed, in 1750, new style; but the entry in the family bible is ‘Jan. 10 O.S. 1749.’ He was born in an upper flat in a high house at the head of Gray's Close in Edinburgh, where his father, whose income was only £200 a year, was living in very straitened circumstances. For some time he with the rest of the family was taught by his mother, Agnes, second daughter of Sir James Steuart, bart., of Goodtrees, a woman of much capacity, cultivation, and piety, moving in a circle of peers, lawyers, and ministers of good position and strict presbyterian views. Afterwards at Uphall he was taught by Buchanan, subsequently a professor at Glasgow University; but it is almost certain that he never was, as has been said, at the Edinburgh High School.

In 1762 the family removed for economy's sake to St. Andrews. Thomas, a quick, idle, and frolicsome boy, was sent to the grammar school under Mr. Hacket, where he learnt a moderate amount of Latin, and read a good deal of English in a desultory way. He was also a pupil of Richard Dick, afterwards professor of civil history in the St. Andrews University. In 1762 and 1763 he attended classes at the university in mathematics and natural philosophy, but he never matriculated. It was his wish to enter a learned profession, but his father could not afford the expense. It was proposed that he should enter the navy, but hating the sea, he begged for a commission in the army, where he would be able to pursue some of his studies. His parents were unable to buy a commission, and in March 1764 he became a midshipman on board the Tartar, commanded by Sir David Lindsay, and left Scotland for the West Indies. He did not revisit Scotland for upwards of half a century.

For four years he cruised in the West Indies, contriving to read a good deal, studying botany, and practising drawing. Here he formed a favourable opinion of the condition of the West Indian slaves, which determined his course on the emancipation question till near the end of his life. In 1765 he was struck by lightning at sea, but without serious results, and a letter of his describing the storm was printed in the St. James's Chronicle 5 Dececember 1765. In 1768 he became acting lieutenant, under Commodore Johnson, Sir David Lindsay's successor, and returned home, hoping for promotion. On reaching Portsmouth the Tartar was paid off, and it became very uncertain when next Erskine would find employment. After acting as lieutenant he was too proud to return to sea as a midshipman, and his father having died about this time (1 December 1767), he laid out the whole of his slender patrimony in buying a commission in the 2nd battalion of the 1st royal regiment of foot, of which John, duke of Argyll, was colonel. Berwick-on-Tweed (1768) was his first station, and St. Heliers, Jersey, his second (1769).

Before he was of age, on 21 April 1770, he married, much against the wishes of her family, Frances, daughter of Daniel Moore, M.P. for Marlow. She died on 26 December 1805.Accompanied by his wife he went with his regiment to Minorca, and was stationed there for two years. During this time he read much English literature, especially Shakespeare, Milton, Dryden, and Pope. According to his own account — but he was imaginative — he took the duty of an absent chaplain, preparing sermons, and excelling in extempore prayer. The manuscript, however, of a sermon composed in Jersey in 1769 has been preserved, along with a pamphlet on the choice of a wife, and some satirical verses written at Berwick, all unpublishe. He composed in Minorca a humorous poem, the Petition of Peter, which shows that his mind was already interested in English law. In 1772 he left Minorca, and, obtaining six months' leave, spent his time in London, where through his connections he obtained ready admission into society, and through his engaging qualities welcome and success. He frequented Mrs. Montagu's in Portman Square, and made Johnson's acquaintance there and elsewhere. ‘On Monday, 6 April’ [1772], writes Boswell, ‘I dined with him at Sir Alexander Macdonald's, where was a young officer in the regimentals of the Scots Royal, who talked with a vivacity, fluency, and precision so uncommon that he attracted particular attention.’ This was Erskine.

He published about this time a pamphlet on Abuses in the Army; though it was anonymous, its authorship was an open secret, and it was widely read. The authorship of another military pamphlet, Advice to the Officers of the British Army, 1787, has been erroneously ascribed to him. Being now senior ensign, he was on 21 April 1773 promoted to be lieutenant. But he found his prospects poor, the expense of his family and of frequent removals from one garrison town to another considerable, and the work uncongenial. He would have a long time to wait before he got his next step by seniority, and he had no means to purchase a captaincy. He chanced one day to go into an assize court in his regimentals, and Lord Mansfield, who was presiding, being attracted by his appearance and learning his name, invited him to a seat on the bench, and commented to him upon the case as it proceeded. Erskine's attention was caught. On Lord Mansfield's suggestion he decided to go to the bar.

To diminish the then five years' period of studentship to three, he resolved to take an M.A. degree. He entered as a student at Lincoln's Inn 26 April 1775, sold his lieutenant's commission 19 September 1775, and matriculated as a gentleman commoner at Trinity College, Cambridge, 13 January 1776. As a nobleman's son he was entitled to a degree without examination, and although he resided, and gained the college prize for an English declamation, he declined the emolument, not considering himself a regular student. It is a formal piece on the thesis ‘that the English House of Commons arose gradually out of the feudal tenures introduced at the Norman conquest.’ It is printed in a pamphlet of 1794, Sketch of Erskine, with Anecdotes. He studied classics very little, but read English diligently, and published a burlesque upon Gray's Bard, called The Barber, which, with The Farmer's Vision, written in 1813, and privately printed in 1818, was published by J. Limbird in 1823.

He received an honorary M.A. degree in June 1778. Meantime he had been studying law, first in the chambers of Buller, and next in those of Wood, both afterwards judges, with whom he read till 1779. He worked diligently, but never was a profound lawyer. He was a constant attendant and a successful speaker in debating societies, especially at the discussions in Coachmakers' Hall. His pamphlet on the army had brought him the acquaintance of Bentham, and he had other friends, but for three years with an increasing family he was often very poor. He had but £300, the gift of a relative, much of which went in fees, and he lived in a poor lodging in Kentish Town, faring in the barest manner. ‘He was so shabbily dressed,’ says Bentham, ‘as to be quite remarkable.’ On 3 July 1778 he was called to the bar, and within a few months mere accident brought him employment from which he started into instant fame and fortune. Thomas Baillie had made charges of corruption in the management of Greenwich Hospital against Lord Sandwich, first lord of the admiralty, and others, and they in Michaelmas term obtained a rule in the king's bench calling on Baillie to show cause why a criminal information for libel should not issue against him. While this was pending a shower of rain brought Erskine to the house of Welbore Ellis, and there at dinner was Captain Baillie. Quite ignorant of his presence Erskine inveighed against Lord Sandwich's conduct. Baillie heard he had been at sea, and sent him a retainer next day. Four other counsel were in the case; three advised a compromise, Erskine resisted it, and thereupon Baillie refused it. Cause was shown on 23 November. Erskine's leaders consumed the day in argument, and the court adjourned. On the 24th, when the solicitor-general was about to reply, Erskine rose, finding courage, as he said, by thinking that his children were plucking at his gown, crying to him that now was the time to get them bread, and made so fierce an onslaught on Lord Sandwich that, although it was perfectly irregular, it carried the day. Jekyll, coming into court in the middle of the speech, said he found the court, judges, and all ‘in a trance of amazement.’ Erskine at once received many retainers, and stepped into a large practice. It is characteristic of him that this account given to Jekyll differed from that given by him to Rogers, and that the number of the retainers steadily increased, and reached sixty-five before he died.

He joined the home circuit, and in January 1779 represented Admiral Lord Keppel on his trial by court-martial at Portsmouth for incapacity shown in the engagement off Ushant against the French fleet under Count d'Orvilliers. Erskine advised Keppel during his thirteen days' trial, and wrote and delivered the speech for the defence. It was successful, and on his acquittal Keppel gave him £1,000. On 10 May he appeared at the bar of the House of Commons for Carnan, a printer, against the claim to a monopoly of printing almanacks, set up by the two universities and the Stationers' Company, and about the same time in the king's bench, in defence of Lieutenant Bourne, R.N., who was tried for sending a challenge to Admiral Sir James Wallace, his commanding officer.

On 5 February 1781 Lord George Gordon was tried for high treason in connection with the ‘no popery’ riots of June 1780, during which, by his own account, Erskine had offered to protect Lord Mansfield's house with a small military force himself, and did assist in defeating an attack on the Temple. Kenyon defended Gordon, with Erskine as his junior; but it was the speech of Erskine, delivered after midnight, that won the verdict of not guilty. From this time his civil practice was enormous. By 1783 he had made £8,000 to £9,000 since his call, besides discharging his debts. This appears from his will, the only one he ever made, executed 15 November 1782, on the eve of a duel — a bloodless one — arising out of a ballroom quarrel with a surgeon, Dennis O'Brien, at Brighton. He easily excelled Lee, Garrow, and all his rivals. He early announced that he would not hold junior briefs.

In 1783, on Lord Mansfield's suggestion, he received a silk gown, then a rare and great distinction, and in that year received his first special retainer of three hundred guineas, said indeed to have been the first known at the bar. From that time he had on an average one per month. He made while at the bar £150,000 and his clerk was said to have received fees to the extent of £20,000. ‘I continue highly successful in my profession,’ he writes to Lord Auckland, 16 July 1786, ‘being now, I may say, as high as I can go at the bar. The rest depends on politics, which at present are adverse’. His income reached £10,000 in 1791, sixteen hundred guineas more than had ever been made in a year at the bar before. He was the first barrister who made it a rule not to go on circuit except for a special fee. He was a favourite alike with Lord Mansfield and his successor, Lord Kenyon.

The growth of commerce and the many maritime and commercial questions arising out of the hostilities with France during his career produced a great increase in litigation, out of which an almost new department of law was created. Erskine was in almost every one of these causes, generally for the plaintiff, for twenty years, and although never a profound jurist must have thus helped no little to form our commercial law. He excelled, however, in cases of criminal conversation. In Parslow v. Sykes he obtained a verdict for the plaintiff for £10,000; and appearing for the defendant in Baldwin v. Oliver, he reduced the damages to a shilling.

He enjoyed perfect health. During twenty-seven years of practice indisposition never caused him a single day's absence from court. A severe illness with abscesses in the throat in 1792 fortunately occurred in September. His figure was elastic and erect, his eye brilliant and captivating, his movements rapid, his voice sharp and clear, and without a trace of Scotch accent. At first his arguments and authorities were laboriously prepared, and read from a manuscript volume. Till his day there were few classical allusions or graces of rhetoric in the king's bench. His oratory, never overloaded with ornament, but always strictly relevant and adapted to the needs of the particular case, set a new example, as his courtesy and good humour considerably mitigated the previous asperities of nisi prius practice. He never bullied a witness as Garrow did, though he fell short of Garrow in the subtlety with which he put his questions. At his busiest — and the preparation of his cases was chiefly done early in the morning before the trial — he never lost his vivacity or high spirits, and no doubt this, his presence, and his rank assisted not a little in his success. ‘Even the great luminaries of the law,’ says Wraxall, ‘when arrayed in their ermine bent under his ascendency, and seemed to be half subdued by his intelligence, or awed by his vehemence, pertinacity, and undaunted character’.

Like his family Erskine was a whig. He was the intimate friend of Sheridan and Fox. On the formation of the coalition government he was, though at the cost of losing his lucrative parliamentary practice, brought into parliament for Portsmouth, Sir William Gordon, the sitting member, making way for him, and he was promised the attorney-generalship on the first opportunity. He was a favourite of the Prince of Wales, and was appointed his attorney-general in 1783, becoming K.C. in the same year. Only Erskine's comparative youth prevented his appointment at the same time to the chancellorship of the duchy of Cornwall. This post the prince always designed for him; he even during their estrangement after Paine's trial kept it vacant for him, and eventually appointed him to it in 1802. He held the office until he became lord chancellor. Had the king not recovered from his insanity in 1789, Erskine would have been attorney-general in the regent's administration. He was, however, more the prince's friend and companion than his political adviser.

His first speech in the House of Commons was on Fox's India bill. So anxious was he to succeed that he asked Fox on the day before what cut and colour of coat he should wear. Fox advised a black one. But his speech was a failure. Pitt sat paper and pen in hand ready to take notes for a reply, then, as the speech went on, lost interest, and finally threw away the pen. This byplay crushed Erskine, who feared Pitt. As Sheridan said to him, ‘You are afraid of Pitt, and that is the flabby part of your character.’ Even in 1805, as the Duke of Wellington told Lord Stanhope, such was the ‘ascendency of terror’ that Pitt exercised over him, that a word and a gesture from Pitt completely checked and altered a speech of Erskine's at the Guildhall banquet. ‘He was awed like a schoolboy at school.’ Pitt, who had been once or twice with Erskine in a cause, disliked him, and spoke of him as following Fox in debate and ‘weakening his argument as he went along.’

He never succeeded in the House of Commons or caught its tone. As he himself said, in parliament he missed the hope of convincing his audience and leading them to the determination he desired. Like Curran he was so great in defending a political prisoner that he seemed tame by comparison on any other occasion. Indeed on 30 December 1796, in answer to Pitt's great speech upon the rupture of the negotiations with France, he actually broke down in moving an amendment to Pitt's motion for an address to the king praying for a vigorous prosecution of the war, and Fox was obliged to take up the thread and speak instead of him. For years after this Erskine hardly spoke. When the coalition government went out and Pitt came in, Erskine went into active opposition. He moved and carried by a majority of seventy-three a resolution that the house would consider as an enemy of the country any one who advised the king to dissolve parliament; he supported Fox's motion for going into committee to consider the state of the nation on 12 January, and denounced Pitt's India Bill on 23 January 1784.

On 18 February he made his last speech for many years in the House of Commons, in support of the motion to stop supplies, the king having disregarded the house's address praying for the dismissal of ministers. A dissolution followed, and the public indignation at the coalition government destroyed the whigs. Erskine was one of ‘Fox's Martyrs’ and lost his seat. He returned to parliamentary practice. He appeared for Fox before the House of Commons in July 1784 on the ‘Westminster scrutiny,’ on which occasion he used great license of speech, and on 3 March 1788, appearing as counsel for the East India Company, ‘delivered,’ as Lord Mornington wrote to the Marquis of Buckingham, ‘the most stupid, gross, and indecent libel against Pitt that ever was imagined. The abuse was so monstrous that the house hissed him at his conclusion. Pitt took no sort of notice of Erskine's Billingsgate’. It appears that Erskine being indisposed an adjournment was taken in the middle of his speech, and in the meantime he dined, perhaps too well, with the Prince of Wales, and was by him prompted to make this attack.

In the meantime he had been winning enduring fame in those causes on which his legal and oratorical reputation rests, causes connected with the law of libel and treason. Sir William Jones had published a tract on government called ‘A Dialogue between a Gentleman and a Farmer.’ Shipley, dean of St. Asaph, reprinted and recommended it. The crown declining to prosecute the dean for this, the matter was taken up by the Hon. Mr. FitzMaurice, and Erskine was retained for the defence. The case came on at the Wrexham autumn assizes 1783, was removed into the king's bench in the spring, and finally tried at the summer assizes at Shrewsbury in 1784. Mr. Justice Buller directed that the jury was merely to find the publication and the truth of the innuendoes as laid; whether the words constituted a libel or not was for the court. Erskine subsequently, in Michaelmas term, argued against this in a very fine speech upon a motion for a rule for a new trial. The rule was refused, but the question was finally set at rest by the passing of Fox's Libel Act (32 Geo. III, c. 60) in 1792, which enacted that the question of libel or no libel in each particular case is for the jury.

In 1789 Stockdale published a pamphlet by one Logan against the impeachment of Hastings. Fox brought this publication before the House of Commons as a libel on the managers of the impeachment, and carried a motion for an address to the crown praying that the attorney-general might prosecute Stockdale. Sir Alexander Macdonald filed an information accordingly, which was tried in the king's bench before Lord Kenyon and a special jury on 9 December 1789. Erskine's speech for the defence produced an unexampled effect on the audience, and Stockdale was acquitted.

At the election of 1790 Erskine was returned for Portsmouth, a seat which he held till he became a peer. On 22 December, separating himself from the rest of his party, he supported the contention that the dissolution had put an end to the impeachment of Hastings, but he broke down in his speech. He spoke in general but little. In April 1792, on Grey's motion for parliamentary reform, he defended the Society of Friends of the People; and when the whig party was divided upon the attitude to be assumed towards the French revolution, Erskine, who had visited Paris in September 1790 to witness its progress and had returned full of admiration for its principles, followed Fox in regarding it as a movement towards liberty, and censured both the policy of enacting new penal laws against the Jacobins and the Traitorous Correspondence Bill. This imperilled his favour with the Prince of Wales; his next step lost it. In 1792 Paine, whose ‘Rights of Man,’ pt. ii., contained offensive attacks on the royal family, was prosecuted. Erskine accepted the brief for the defence, in spite of many attacks from the government newspapers, much dissuasion by his friends, including Lord Loughborough, and an express message from the Prince of Wales. On 18 December 1792 the jury, without waiting for reply or summing-up, found Paine guilty. Erskine was dismissed from his office of attorney-general to the Prince of Wales. As, however, Sir A. Pigot, the prince's solicitor-general, was dismissed also, though unconnected with Paine's case, it is probable that the real ground of offence was that both were members of the Society of Friends of the People for Advocating Parliamentary Reform. Erskine was one of the original members of the Society of Friends of the Liberty of the Press, and presided at its first and second meetings, 22 December 1792 and 19 January 1793.

The government now began a series of prosecutions. The first was that of John Frost in March 1793. In spite of Erskine's efforts he was convicted. For Perry and Grey, proprietors of the Morning Chronicle, indicted 9 December 1793 for inserting in the paper the address of a society for political information held at Derby, which complained of the state of the parliamentary representation, he procured an acquittal. In the case of Walker, too, tried on 2 April 1794 for a conspiracy to raise a rebellion, he destroyed the crown witnesses in cross-examination, and the verdict was not guilty. The government next attacked the advocates of reform with prosecutions, in which the theory of constructive treason was put forward. Erskine was successful in defeating them. After secret committees of both houses had reported, an act was passed suspending the Habeas Corpus Act in view of the forthcoming trials. True bills were found against twelve persons, the only overt act alleged being a conspiracy to summon a convention. The trials began on 28 October 1794 at the Old Bailey, before Lord-chief-justice Eyre and other judges, under a special commission of oyer and terminer. Hardy's case was taken first. Scott, the attorney-general, took nine hours to open his case; the jury was locked up for the night, and day after day from 8 a.m. to midnight the case proceeded. On the last day Erskine spoke from 2 p.m. to 9 p.m., his voice dying away into a whisper at the end from exhaustion. Still on leaving court he had to address the vast crowds, which had collected outside every day and had escorted him home and mobbed Scott every night, begging them to leave the law to take its course. After some hours of consultation the jury returned a verdict of not guilty.

The crown persevered. Horne Tooke was tried next, and the jury acquitted him without leaving the box; then Thelwall, who also escaped. No more cases were taken. Bonfires were lit, and the crowd dragged Erskine's carriage in triumph to his house in Serjeants' Inn. His portraits and busts were sold all over the country, tokens were struck bearing his effigy, and he was presented with the freedom of numerous corporations. Subsequently he defended William Stone, for whom he procured an acquittal in spite of strong evidence that he had invited a French invasion. On 26 July 1796 he appeared at Shrewsbury to defend the Bishop of Bangor and several of his clergy on a charge of riot, committed while ejecting from the diocesan registry one Grindley, who claimed to be registrar. He appeared on 24 June 1797 as prosecutor for the Society for the Suppression of Vice, which proceeded against Williams, a bookseller, who had sold Paine's ‘Age of Reason.’ He delivered a powerful speech in support of the truth of christianity, and obtained a conviction, but the society rejecting his view of the proper course to pursue in suppressing such publications he declined to appear further for them. In this year appeared his pamphlet on the ‘Causes and Consequences of the War with France,’ which, though in great part written in court during the hearing of cases, ran quickly through forty-eight editions.

In 1799 he defended, but without success, the Earl of Thanet and Robert Cutlar Fergusson at the bar of the king's bench, who were tried for an attempted rescue of Arthur O'Connor as he was being re-arrested after being acquitted of high treason. It was an unfortunate answer of Sheridan's in cross-examination that lost the case. Both were fined and sentenced to a year's imprisonment. On 21 February 1799 he defended Cuthell, a respectable bookseller, who had inadvertently sold some copies of Gilbert Wakefield's pamphlet in answer to the Bishop of Llandaff, and though the prisoner was convicted his punishment was remitted. On 15 May James Hadfield fired at the king at Drury Lane Theatre, and was tried on 26 April 1800. Erskine defended him and established his plea of insanity, and under the statute 40 Geo. III, c. 96, subsequently passed, Hadfield was confined for the remainder of his life. In all these cases his speeches, which are models of advocacy and forensic eloquence, were published.

In the House of Commons he had been in the meantime playing a less and less conspicuous part. There seems to have been some doubt of his complete fidelity to the whigs. Rose says that Pitt had told him of overtures made by Erskine many years before 1806, perhaps in 1797, and when Addington came in (January 1801) Erskine wrote to him expressing a disposition to take office. After the suggestions which were made of his taking the chancellorship from Addington, to which the Prince of Wales's opposition put an end, his practice for some time fell off. He spoke and voted seldom in the House of Commons during the last years of Pitt's administration. He opposed the projected coalition between Fox and a section of Pitt's former followers, friends of Grenville and Windham, drafted the remonstrance to Fox which was adopted at the meeting at Norfolk House, and supported the peace of Amiens. His principal speeches were on 17 November 1795, against the Seditious Meetings Bill; on 30 November, against the bill to make conspiracy to levy war against the crown high treason, though no overt act were proved; in seconding Grey's annual motion for reform, 26 May 1797; and on 3 February 1799, upon the rejection of the overtures for peace made by Bonaparte on becoming first consul. He did not speak on the union with Ireland. In 1802 he visited Paris during the peace, and found himself almost unknown. He was presented to Napoleon. ‘Etes-vous légiste?’ said Napoleon. This was crushing to Erskine's egotism. He knew little French, and never revisited the continent.

Like most of the other whigs he supported (23 May 1803) the renewal of the war on the rupture of the peace of Amiens, and the imposition of the property tax on 5 July. Of his speech on the army estimates (12 December) Fox writes: ‘Erskine made a foolish figure, I hear.’ When the volunteers were raised he became colonel of the Temple corps. He never had been more than able to put his company in the royals through their manual exercise; now he was seen by Campbell giving the word of command from directions written on a card, and doing it ill. However, he argued successfully in the king's bench the right of volunteers to resign without waiting for the conclusion of the war, a more congenial task, and on 19 March 1804, in his last speech in the House of Commons, opposed, also with success, the clause forbidding resignations, which was inserted in the Volunteers' Consolidation Bill.

In 1806, after Pitt's death, it became necessary to include some of the whigs in the Grenville administration. Eldon was not sufficiently loyal to a mixed cabinet of colleagues to be trusted with the seals, and, after being refused by Lord Ellenborough and Sir James Mansfield, chief justice of the common pleas, they were on 7 February 1806 given to Erskine. The appointment was generally condemned. He had refused to hold briefs before the House of Lords and privy council, was ignorant of equity, and experienced only as an advocate at nisi prius. ‘He is totally unfit for the situation,’ writes Romilly. From this time he sank into comparative insignificance. He took his title, Baron Erskine of Restormel, from the castle of that name in Cornwall, out of compliment to the Prince of Wales. His motto, ‘Trial by jury,’ was much derided. He took his seat on 10 February, and being quick, cautious, and attentive, and receiving some assistance from the equity counsel in practice before him, made few blunders as a judge; but he was ignorant of real property law and neglected to study it, contenting himself with making Hargrave a queen's counsel and employing him to work up authorities. In his hands equitable principles received little development or adaptation, though his decisions do not deserve the title of the ‘Apocrypha,’ which they received. His only considerable decision is Thelusson v. Woodford, on the doctrine of election by an heir. But his chief judicial act was to preside at the trial of Lord Melville in June 1806, which he insisted must, unlike Hastings's impeachment, proceed de die in diem, and be conducted according to regular legal forms. In most of the divisions in this trial he voted in the minority for finding Lord Melville guilty. In the House of Lords he was assisted on appeals by Lords Eldon and Redesdale, and deferred greatly to them, and on one occasion, when sitting at first instance, was assisted by Sir William Grant, master of the rolls. On 7 June 1806 he, with Lords Grenville, Spencer, and Ellenborough, was commissioned by the king to inquire into the charges against the Princess of Wales of adultery with Sir Sidney Smith and others. The charges were declared groundless.

In the ministry he was not much consulted, nor did he very frequently take part in the debates of the House of Lords. He was not informed of Lord Howick's bill for allowing Roman catholics to hold commissions in the army until it was about to be introduced, and did not speak at all from the meeting of the new parliament in December 1806 until March 1807. Earlier in 1806 he had defended the inclusion in the cabinet of Lord Ellenborough, though lord chief justice, and had supported the bill for the immediate abolition of the slave trade. After the king's insurmountable opposition to Lord Howick's bill had brought the ministry face to face with resignation, Erskine was much chagrined at the prospect of losing office, and Lord Holland's account of the cabinet of 10 February shows that he struggled hard to avoid the necessity of adhering to his colleagues When the king demanded his ministry's written promise never again to propose to him a relaxation of the Roman catholic penal laws, Erskine went to expostulate with him, and in a long interview on 14 March imagined that he had converted him. On the 24th, however, the intrigues of Eldon and the Duke of Cumberland succeeded, and the king dismissed his ministers. Some suspicion was caused by the fact that Erskine did not resign the seals till 1 April. This was not, however, due to his having abandoned his colleagues, but was intended to give him time to deliver judgment in pending cases in which he had already heard all the arguments. He, however, somewhat unfairly, took the opportunity in the interval to prevail on Sir William Pepys to resign his mastership in chancery, and to appoint to the vacant post Edward Morris, his own son-in-law. The mode in which this change of ministry took place was so extraordinary that strong hopes were entertained of a return of the ministry of ‘All the Talents’ to office, but when, a few months later, this seemed immediately probable, Romilly observes that Erskine was not likely to be chancellor again, ‘his incapacity for the office was too forcibly and too generally felt.’

From this time Erskine gradually dropped out of public life. On 13 April he defended the conduct of the late ministry in refusing the pledge demanded of them, and in the new parliament he moved that the king's personal inclinations ought not to be of any binding effect on ministers (26 June), but the motion was lost by 67 to 160. In this new parliament the whigs were almost annihilated, the ministerial majority being two hundred, and, like many other whigs, Erskine almost entirely neglected parliament for some years. He opposed the Copenhagen expedition and the orders in council, and entered a protest against the bill to prohibit the exportation of jesuits' bark to Europe. The only question in which he interested himself was the prevention of cruelty to animals, for which he introduced a bill on 15 May 1809, which passed the lords but was lost in the commons by 37 to 27, and another in the following session, which he withdrew. He was always attached to animals and had many pets, a dog which he introduced at consultations, a goose, and even two leeches, and in 1807 he published privately a pamphlet, ‘An Appeal in favour of the Agricultural Services of Rooks’. The subject was at length dealt with by the act 3 Geo. IV, c. 71.

Gradually, too, he altered his early views on slavery, and inclined more and more to emancipation. In 1810, yielding to his besetting sin of seeking popularity, he maintained, on the committal of Sir F. Burdett to the Tower, that all questions of privilege ought to be decided by courts of law only. When the regency became necessary he had high hopes from the Prince of Wales, with whom he was still very intimate, and who had even given him, while chancellor, an uncut topaz seal-ring, with the request that it might not be cut for the present, as he intended to give him an earl's coronet to engrave upon it. He strenuously opposed the proposed restrictions on the regent's powers. But the prince threw the whigs over, and Erskine's hopes of office finally vanished. He retired into private life, attending but little to the judicial and other business of the House of Lords.

He lived the life of an idler and man about town, sometimes melancholy in private, but in company extraordinarily vivacious and sprightly, a characteristic which he always retained. He fell into pecuniary straits. Always careless of money — he once dropped £20,000 of stock on the floor of a shop — in spite of his great professional earnings and his chancellor's pension of £4,000 a year, he was now poor. Apprehensive of revolution in England he had invested large sums in the United States and lost them. He had given up his house in Lincoln's Inn Fields and now sold his house at Hampstead, Evergreen Villa, and bought an estate in Sussex and took to the study of farming. The estate proved sterile, and though he began to manufacture brooms, as the only things it would produce, his loss was heavy. He haunted the courts at Westminster, expressing many regrets that he ever left the bar, interested himself in his inn, of which he had become a bencher in 1785 and treasurer in 1795, in anniversary dinners and literary institutions, and appeared at innumerable parties and balls.

He took to letters, and wrote, at first anonymously, a political romance, ‘Armata,’ an imitation of More's ‘Utopia’ and Swift's ‘Gulliver,’ which ran through several editions. To the cause of law reform he was indifferent, and, having taken charge in the House of Lords in 1814 of Romilly's bill to subject freehold estates to the payment of simple contract debts, he neglected it so much, since he ‘did not understand the subject and was incapable of answering any objections,’ that it had to be entrusted to other hands. Some comment was excited by his accepting from the regent the knighthood of the Thistle, and more by his wearing the insignia on every possible occasion.

From 1817 he began to return to active public life; he opposed both the Seditious Meetings Bills and the act for the suspension of habeas corpus, and during 1819 and 1820 offered a most determined opposition to the six acts, resisting them at every stage, and also supported Lord Lansdowne's motion for a committee to inquire into the state of the country. He had not been in Scotland since he went to sea as a lad of fourteen. He was now invited and went to a public banquet at Edinburgh 21 February 1820 (Campbell wrongly says 1821); yet so bitter was party spirit that Scott refused to meet him.

Upon the trial of Queen Caroline he took a part which was deservedly popular, and, in spite of his obligations to the king, insisted in all the debates on securing a fair trial for the queen. In these debates his voice was very influential. Unlike most of the whigs he voted for submitting the ‘green bag’ to a secret committee, but he proposed a resolution that the queen should have a list of the witnesses before the second reading, which was lost by 28 to 78; resisted successfully the motion of the attorney-general for an adjournment to give time for fresh witnesses to arrive; opposed the second reading on 2 November and 4 November, and again attacked the bill in committee, and his speech on the third reading was the last of any importance which he delivered in parliament. His health indeed was failing, and in the middle of his speech on 2 November he was seized with cramp and fell senseless on the floor. His chivalrous speeches on behalf of the queen revived his almost forgotten popularity. But his public part was almost played. On 10 July 1822 he recorded his protest against the Corn Law Bill, on the ground that it diminished instead of increasing agricultural protection. He made some efforts on behalf of the popular party in Spain; in 1822 he published a letter to Lord Liverpool in behalf of the cause of Greek independence; in 1823 a letter of his to Prince Mavrocordato was published by the Greek committee, and in the same year he issued a pamphlet called ‘A Letter to the Proprietors of Land on Agricultural Prosperity.’

He was quite estranged from the king, and had fallen into poverty and some social discredit. At various times, from as early as 1796, he had been accused of opium-eating, but without any foundation. He was living now partly at 13 Arabella Row, Pimlico, partly at a cottage, Buchan Hill, in Sussex. At some time not ascertainable he married at Gretna Green a Miss Mary Buck, by whom he had a son, Hampden, born 5 December 1821. She and her child were in very straitened circumstances after his death.

In the autumn of 1823 he started for Scotland by sea to visit his brother the Earl of Buchan, at Dryburgh Abbey, Berwickshire. Inflammation of the chest attacked him on the voyage; he was landed at Scarborough and thence conveyed to Almondell, West Lothian, the residence of his brother Henry's widow, and died there 17 November 1823. He was buried at the family burial-place, Uphall, Linlithgow.

His character was amiable and elevated, but his distinguishing characteristic was an inordinate vanity, which perpetually made him ridiculous. Almost the best of Canning's ‘Anti-Jacobin Papers’ is a burlesque speech of Erskine's at the Whig Club in which he is made to point out that he was but a very little lower than the angels. He was caricatured as Counsellor Ego, and as Baron Ego of Eye, and Cobbett always wrote of him as Baron Clackmannan. His wit was proverbial, and many of his epigrams are classic, but he especially excelled in puns. He was an honourable politician, an enthusiast for liberty, and an incomparable advocate and orator. He was an enthusiastic student of English classics, and, in spite of sarcasms on himself, a great admirer of Burke. He knew by heart ‘Paradise Lost,’ ‘Paradise Regained,’ and Burke's speech against Warren Hastings. Lord John Russell's phrase sums up his character: ‘The tongue of Cicero, and the soul of Hampden.’

By his first marriage he had four sons and four daughters.

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