THE

LAW MAGAZINE AND REVIEW.

No. CCCLI.-FEBRUARY, 1909.

I. THE ORATORY OF LORD ERSKINE.

HE greatest advocate that ever practised at the English

THE

Bar was undoubtedly Thomas Erskine. As a man, he had many faults. As a legislator, he was a failure. As Chancellor, he was so unreliable that his decisions received the nickname of the Apocrypha. "Only the youngest members of the profession," says Sir Frederick Pollock, "need be warned that Erskine's Equity has never been valued at the same rate as his eloquence." But, whatever his failings in Parliament, or as a judge, he was, as Lord Campbell has said, "without an equal in ancient or modern times as an advocate in the forum." It was not that he was remarkable for oratory only. He gained his reputation for eloquence, as used for and bent to the purposes of advocacy. He never lost sight of the business in hand-the client-the casethe verdict. Under all his brilliant speech was the hard head of the nisi prius lawyer. His fame was built, as Brougham has said, 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.

After serving first in the navy and then in the army, Erskine was called to the Bar in 1778 at the age of twentyeight. He had been a keen student of English literature. He had relieved the monotony of military life by devotion to Shakespeare, Milton, Dryden, and Pope. He had

mastered the resources of language. It was said that he knew Paradise Lost and Paradise Regained by heart. When his chance came in the case of Captain Baillie, he was ready to take the fullest advantage of it. It was not his weary lot to sit on the back benches of the Courts among the young men, who may be not inaptly compared to the ghosts that linger on the banks of the Styx for a passage over the lake. He quickly attained success and

reputation.

Erskine's first client was the Captain Baillie, who has just been mentioned. Baillie was Lieutenant-Governor of Greenwich Hospital, and had exposed certain abuses in the management of the Hospital. His conduct was resented by Lord Sandwich, the First Lord of the Admiralty, on whom he had reflected severely, and proceedings were taken against him for a criminal libel. Erskine happened to visit Wellbore Ellis when Baillie was dining there, and, ignorant of his presence, inveighed against the conduct of Lord Sandwich. Baillie learning that Erskine had himself been at sea, sent him a retainer next day. When the case was tried, three of the counsel retained by Baillie advised a compromise, but Erskine resisted the proposal. When Erskine's turn came to speak he made so fierce an onslaught that, although perfectly irregular, it carried the day. Jekyll came into Court in the middle of the speech and found the Court, judges and all, “in a trance of amazement." Erskine always said that this speech put him on his feet at once. His experience was like that of Cicero, when he defended Roscius Amerinus. It gave him such a position as an advocate, “ut non ulla (causa) esset, quae non digna nostro patrocinio videretur." He was considered good enough to appear in any cause.

Erskine is the only English lawyer whose speeches as an advocate have secured a permanent place in the literature of oratory. He lived in the golden age of English eloquence.

As it was said by the historian Paterculus that only in the lifetime of Cicero was there any great eloquence in Rome, so it has been said that no member of either House of Parliament will be ranked among the orators whom Lord North did not see, or who did not see Lord North. Erskine belonged to the group that had seen Lord North. His place among the orators is secure. In the early years of leisure which fall to the lot of most young men at the Bar, no better employment could be followed than a careful study of Erskine's speeches. It is not enough to read them once. They should be read and re-read and analysed. His defences were, as Mr. Richard Harris, K.C., says in his well-known Hints on Advocacy, "artistic in the truest sense." "The mode, the art, of presenting the case," says Mr. Harris," was more even than the matchless eloquence by which it was accompanied."

Eloquent and effective as Erskine's defences were, they have characteristics which a modern advocate would avoid. The personal element is a prominent feature. Erskine was nothing if not vain. He was nicknamed Counsellor Ego, and, when he was raised to the peerage, it was suggested that he should take the title of Baron Ego of Eye, in the county of Suffolk. He appears never to have felt any necessity for suppressing his own personality. At times his vanity becomes slightly absurd. In the speech for Thomas Walker and others, for example, he says he has no interest in the destruction of the constitution, and he gives a Harcourtian reason. "I have the honour to be allied to His Majesty in blood," he says, "and my family has been for centuries a part of what is now called the aristocracy of the country; I can therefore have no interest in the destruction of the constitution." He constantly expresses his own belief in the innocence of his clients-a course which no good advocate, who knows his business, would now think of adopting. "If an advocate," he says in his speech for

Thomas Paine, "entertains sentiments injurious to the defence he is engaged in, he is not only justified, but bound in duty to conceal them; so, on the other hand, if his own genuine sentiments, or anything connected with his character or situation, can add strength to his professional assistance, he is bound to throw them into the scale." This view, however, is no longer held by English lawyers.1

Erskine in his defences expresses his own opinions on all sorts of highly controversial subjects with the utmost boldness. He never hesitates to vent his political and religious views. Some of his speeches are pure and undiluted political addresses. His speech to the jury in the Perry and Lambert Case is simply a defence of Whiggism. He had the greatest admiration for the writings of Burke. "The most common subjects," he says, "swell into eloquence under the touch of his sublime genius." He constantly quotes from his political works. It is said that he read and re-read Burke's speech against Warren Hastings until he knew it by heart. But we do not find in his speeches those eloquent statements of political first principles, in which Burke's orations are so rich. Here and there we find an epigrammatic passage, but they are few and far between. A single instance may be cited. "When men," he says in one place, "can freely communicate their thoughts and their sufferings, real or imaginary, their passions spend themselves in air, like gunpowder scattered upon the surface; but, pent up by terrors, they work unseen, burst forth in a moment, and destroy everything in their course. Let reason be opposed to reason, and argument to argument, and every good government will be safe."

"They

1 Quintilian (Institutes, Bk. xi, c. 1, s. 3) condemns this practice. likewise are arrogant," he says, "who are peremptory in asserting the goodness of their cause, and that if it were not such, they would not have undertaken it. The judges, indeed, cannot bear to hear one presuming to exercise their function.” Perhaps the last instance in England in which an advocate of prominence avowed his personal belief in his client's innocence was in the Rugeley poisoning case, when Serjeant Shee stated his belief that Palmer was innocent.

In some of his political defences, he gives long extracts from the writings of others. The speech for Thomas Paine may be taken as an illustration of this statement. Paine was prosecuted for writing a book in reply to Burke, in which he upheld the right of the people to change their government, if they thought proper. Erskine in his defence showed that the views of Paine were identical with those of Paley, Locke, David Hume, and even Burke himself, and quoted freely from those writers. He argued that Paine had a right to express them. He quoted Milton, Hume, Dr. Johnson, Stanhope, and Lord Loughborough, in support of the Freedom of the Press. Going through the various passages selected by the Information as seditious, he endorsed or explained them away, quoting in support of Paine's views Hume, Mr. Cappe, “a late eminent and pious minister at York," Burke himself, and Pitt. He turned aside to defend Harrington, the author of Oceana, who had in a recent pamphlet been coupled with Paine, the two being described as obscure blackguards. He quoted an extract from Milton, containing the fine passage, which begins, "Methinks I see in my mind a noble and puissant nation rousing herself like a strong man after sleep." He uttered a panegyric of Mr. Fox, and concluded with a reference to Lucian's fable of Jupiter and the countryman.

The finest speech of Erskine was his defence of Stockdale. If it has a fault, it is that it is too fervid and ornate. It may be said of it, abundat dulcibus vitiis. Brougham greatly admired a passage in the speech, which may be quoted as a sample of Erskine's florid eloquence. Brougham ascribed the beauty of the passage to its rhythm, and pointed out that it was in iambics.

66

“Gentlemen, you are touched by this way of considering the subject, and I can 66 account for it. I have been talking of man and his nature, not as they are seen through the cold medium of books, but as I have myself seen them in climes reluctantly submitting to our authority. I have seen an indignant savage chief "surrounded by his subjects, and holding in his hand a bundle of sticks, the notes

66