A Great Advocate -- A Profile of Thomas Erskine
Wednesday 25 March 1987
To be a great advocate is the covert ambition of most lawyers. As solicitors now seem likely to obtain a right of audience in the higher courts, it may be useful to consider what qualities are possessed by the successful advocate.
The failings of the inept pratitioner at the Bar are easily identified, and lend themselves to ridicule. Dickens, for example, in a most evocative passage, refers to 'a drawling sound in the distance, which was one of the counsel in our case addressing the Lord Chancellor'. But the subtle skill of the advocate defies both description and analysis, by its own peculiarly elusive character.
However, in the past two decades of the 18th century, many eminent observers tried to record for posterity the brilliance of Thomas Erskine, who, they said, 'had a position which no man before had ever reached at the English Bar, and which no man hereafter was likely to attain'. In their vivid first-hand accounts they reveal at least some of the attributes essential for success in the courts.
Thomas Erskine was born in 1749, the third son of a Scottish earl; the family, though ancient, was very poor. At the age of 15, greatly against his will, Erskine was placed in the Royal Navy. Four years later he transferred to the army, where he spent all his spare time steeping himself in the classics of English literature. He was said to have known most of Paradise Lost by heart, and to have had a greater knowledge of Shakespeare than any other man of the age.
In 1772 he went to London on leave, and happened one day to go into the court of that distinguished fellow Scot, Lord Mansfield. He quickly bacame convinced that his abilities were best suited to a career at the Bar. Encouraged by Lord Mansfield, he sold his commission and began to study law. He had married young, and now had a terrible struggle to support his wife and family; in later life he claimed that at this time he had lived on tripe and cow's heel.
Erskine was called to the Bar at Lincoln's Inn in 1778. Almost immediately he became famous. A charge of criminal libel had been brough against one John Baillie, whose only offence was to expose the flagrant corruption in the management of the Greenwich Hospital. The newly called Erskine was retained as one of the defence counsel. Erskine's leaders wished to compromise t he action, but their junior counsel, strongly backed by the defendant, insisted on fighting the case. It fell to Erskine to make the closing speech for the defence. He spoke with such eloquence, courage and conviction, that 'all who heard him were thrown into a trance of amazement'. Bailie was acquitted, and Erskine's success as an advocate was assured.
By 1783, less than five years after he was called, Erskine had had the most rapid rise ever known at the Bar. According to a contemporary 'he had already earned £8 or £9,000, besides paying his debts, had got a silk gown, and business of at least £3,000 a year, and a seat in Parliament'. (These sums represented a fortune at the time; Parson Woodforde maintained a staff of five or six servants on his stipend of £400 a year.)
But the troubled years ahead were to reveal qualities in Erskine which made him one of the most renowned champions of our civil liberties. At that time the laissez-faire policies of the Whigs were already being called into question. The onset of the French Revolution acted as a catalyst on those who were working for parliamentary reform. Societies were formed to promote constitutional change; and though their members' demands were not unreasonable, their choice of language was often foolishly intemperate.
As reports began to reach England of the increasing savagery in France, culminating in the execution of Louis XVI and his Queen, a strong counter-reform movement developed. Anyone trying to change the constitution could be in danger of a charge of constructive treason, on the grounds of working to 'compass the death of our Lord the King'. In 1794 twelve leading reformers were charged with conspiring to call a convention with the object of bringing about a revolution in the country, and subverting by force the existing constitution. At the same time Parliament suspended the Habeas Corpus Act. Public opinion was outraged, and popular indignation rose to a dangerous level.
Erskine had been retained to defend seven of the twelve accused, including Hardy, a shoemaker, who was Secretary of the Society for Constitutional Reform. Hardy was the first to be tried. A huge mass of evidence had been collected by the prosecution; the trial started at eight each morning, and sometimes dragged on until midnight. Erskine was in court all day, and spent a great part of the night preparing the next day's work. This trial showed his consummate art as an advocate. He sought to impose upon the jury his own interpretation of the law of treason; time after time he defined the meaning of 'treason', with each definition phrased in different terms. 'He had', it was said, 'marvellous skill in varying his phraseology so that no-one was sensible of tautology in the expressions. Like the doubling hare, he was perpetually coming to his old place.' He spoke with conviction because he believed passionately in the cause. 'In every work I utter', he said, 'I feel I am pleading for the lives of my children after me, for the happiness of my country, and for the universal condition of civil society throughout the world'.
From the voluminous facts, Erskine drew the essentials favourable to the accused. He tried to convince the jury that Hardy's intentions were innocent, and the charge of treason was unjustified. His closing speech lasted for seven hours. As he ended, with his voice reduced to a whisper, spontaneous applause broke out in the court, and the huge crowd outside began to cheer. Erskine straightaway left the court, and begged he crowd to go away; he ur ged them to trust in the justice of the laws of England, warning them to avoid any attempts to intimidate the officers of the law. Such was his authority that the crowds dispersed peacefully; their faith in Erskine was justified when the jury brought in a verdict of 'not guilty'.
Two more of the accused were tried and acquitted; then all furhter prosecutions were dropped. There was rejoicing throughout the country, and Erskine was everywhere acclaimed as the defender of the people's freedom. But his fame was his only reward; for in accordance with the convention of the time, counsel involved in high treason cases received no fees.
Erskine was now a national hero, respected for his manifest integrity and his religious convictions. When the Society for the Suppression of Vice wished to prosecute the publisher of The Age of Reason on the grounds of blasphemy and sedition, Erskine was their obvious choise of advocate. The publisher, williams, was convicted; but before he was sentenced, Erskine had a strange experience. 'I happened to pass one day', he said, 'through the old turnstile on my way to Lincoln's Inn fields, when I felt something pulling my coat. I then saw a woman, bathed in tears, emaciated with disease and sorrow, who almost dragged me into a wretched hovel, where I found she was attending upon two or three unhappy childred in the confluent smallpox. There also, in the same room, not above ten feet square, was the wretched Williams, sewing up little religious tracts. I was convinced his poverty had led him to publish the book; he voluntarily and eagerly engaged to find out all the copies in circulation, and to bring them to me to be destroyed.'
Erskine, full of pity for the wretched bookseller, wrote to the society, suggesting that as Christians they should be merciful to Willams, and use their influence to obtain a lenient sentence. This they refused to do. So Erskine indignantly sent back their retainer, and refused ever to act for them again.
Again the Peace of Amiens, Erskine, like many of his fellow countrymen, visited France. He was received by Napoleon, who was interested to meet the internationally famed lawyer. But apparently Erskine was not happy in France; he was not proficient in the French language, and no doubt was frustrated that he could not take his customary prominent, if not pre-eminent place in any conversation. The diarist Joseph Farington in his entry for 10 October 1802, records that Erskine was waiting in the Packet Boat Inn at Dieppe to return to England. The wind became unfavourable: 'so Mr Erskine and his sone, being impatient of delay, hired an open boat for which we were told they paid 20 guineas, and embarked at ten o'clock, equipped in fishermen's jackets and trowsers. Their passage must have been very unpleasant as they were without covering and did not reach Brighton we heard till the following morning.'
In 1806 Erskine was appointed Lord Chancellor, in the Ministry of All the Talents. It was not a popular appointment. Erskine himself was well aware of his shortcomings; he had little knowledge of equity, and he was not a profound lawyer. 'His judgments', it was said, 'did not advance our equitable code'. But he was respected for his dignified demeanour, and his unfailing courtesy. He was bitterly disappointed when, only a year later, the Ministry fell, and he had to surrender the seals of his office.
His career after 1807 was an anticlimax. He invested unwisely and lost most of his fortune: he wrote a political romance; he became an unsuccessful farmer; and sh ortly before his death in 1823 he made an utterly disastrous second marriage. Yet one who saw him at the end of his life said 'Erskine cannot grow old; his spirit is still glowing and flushed with the enthusiasm of youth'.
Perhaps this eager vitality was the key to Erskine's unparalleled success as an advocate. His opening speeches, it was said, were 'short, lively, and characterised by a gay sort of pleasantry that made it always amusing to hear him; his style was elegant and correct, and had a music and rhythm altogether peculiar to it which gave it a singular grace and energy. The beautiful modulation of his voice was irresistible; it had a charm about it which invited you to listen.' Though a regional accent seems nowadays to be a positive advantage in public life, in 18th century England it was derided; contemporaries noted with approval that Erskine's voice held no trace of his Scottish origins.
But a pleasing voice and a graceful mastery of English prose are not enough in themselves to earn the accolade bestowed on Erskine, as 'the greatest forensic orator Britain ever produced'. Brilliant though his speeches were, they were directed to one end only: the winning of his case. Whatever intricacies were unfolded, he never lost sight of this aim. He invariably started with a lucid statement of his case. He then drew from his witnesses without apparent effort, a rational and coherent exposition of their evidence. In cross-examination he never hectored or bullied, but disarmed the witness by his humorously persuasive approach. In re-examination he always avoided unnecessary repetition. He was invariably respectful to the judges, but never obsequious. However unforeseen the turn of events, he was never disconcerted. 'When a convincing answer cannot be found to an objection', he said, 'those who understand controversy never give strenght to it by a weak one'. He never failed to take advantage of an opponent's mistake.
But his artless manner concealed a most diligent preparation of his case, with a thorough mastery of the law involved. Having decided his line of reasoning, he used all his ability to explain and apply these leading principles. It was noticed that throughout his speeches he never ceased to watch the members of the jury, acutely sensitive to the effects his words were having upon them. His sense of the dramatic ensured that his listeners were never bored. Jurors confessed to being fascinated by his personality, almost spellbound by his eloquence, and the keenness of 'his bright blue penetrating eye'. He was incapable of pomposity.
Erskine's success must have been attributable above all to the strength of his own convictions. He believed passionately in the value of his work. 'I will for ever', he said, 'al all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence'.
When put to the test he was true to his principles. 2n 1792, despite all the efforts of his friends to dissuade him, he agreed to defend Tom Paine, author of the revolutionary Rights of Man. At this time, Erskine was Attorney-General to the Prince of Wales; he knew that by defending Paine he was putting his office at risk and immediately after the end of the trial, he was dismissed. But he gloried in his dismissal, claiming that he had thwarted a conspiracy to deprive Paine of a legal defender.
Erskine lived at a time when there was dangerously widespread resentment of the government's harsh and repres sive measures; and his greatest achievement was to prove that within the law he could provide a shield against tyranny more effective than violent revolt.
We ourselves now live in an era where strikes and demonstrations, not always peaceful, seem to some parts of society the only way to vent opinions and bring about reform; and the police and the courts are regarded as the agents of oppression. Barristers have been heard to describe themselves complacently as taxi-drivers, waiting at the kerb to take aboard any passenger who can pay the fare. This was not Erskine's view. 'That undisturbed and unruffled course of justice', he wrote, 'is the universal source of human security. Statesmen have, in all ages, distracted governments by their ambition; parties will create animosities, and sometimes confusion by their discordant interests, tumults will occasionally arise out of the best of human passions, in the best of ordered states; but where an enlightened and faithful administration of justice exists in any country, that country may be said to be secure.'
At a critical time in English history, Erskine, more than any other, helped to achieve radical constitutional reform by peaceful means. He set a standard for advocates which, as his contemporaries claimed, has never been equalled. But it should never cease to be an inspiration to all those who practise in the courts of our land.
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