Thomas Erskine: A great trial advocate

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Thomas Erskine was called to the bar in the 1778. As with many lawyers in our legal heritage, his cases were significant not only to the clients he represented, but also to many members of society, and they continue to be so even to this day.

His first case as junior barrister was the defense of Capt. Thomas Baillie, lieutenant governor of Greenwich Hospital, who published abuses he had uncovered in the hospital’s management, particularly by Lord Sandwich, First Lord of the Admiralty. Lord Sandwich initiated a proceeding for a ruling that criminal libel charges be brought against Baillie.

Although Erskine was the most junior lawyer on the case, his brilliant argument won the case and exonerated Baillie.

When the judge interrupted him by stating that Lord Sandwich was not in the courtroom, Erskine responded: “I know that he is not formally before the Court, but for that very reason I will bring him before the Court…. I will drag him to the light, who is the dark mover behind this scene of inequity.”

In 1780, Erskine defended prominent politician Lord George Gordon, accused of leading a riot of thousands against the government and charged with high treason. In reality, as head of the Protestant Association, Gordon led the group to the House of Commons to present a petition to repeal certain legislation. The so-called Gordon Riots lasted for days, and the protesters were deemed to be out of control and anti-government.

In his closing, Erskine argued to the jury:

Can any man living believe that Lord George Gordon could possibly have excited the mob to destroy . . . [referring to the home of Judge Mansfield]. No gentleman it is not credible that a man of noble birth and liberal education, unless agitated by the most implacable personal resentment, which is not imputed to the prisoner, could possibly consent to this burning of the . . . house.
What then has produced this trial for High Treason? What! But the inversion of all justice, by judging from consequences instead of from causes and designs? What! But the artful manner in which the Crown has endeavored to blend the petitioners in a body, and the zeal with which an animated disposition conducted it, with the melancholy crimes that followed—crimes which the shameful indolence of our magistrates, which the total extinction of all the police and all government, suffered to be committed in broad day, in the delirium of drunkenness, by an unarmed banditti, without a head, without plan or object, without a refuge from the instant gripe of justice, a banditti with whom [Lord Gordon] had no manner of connection. . . .

The verdict was not guilty.

In 1792, Erskine defended Thomas Paine, who was charged with seditious libel for the publication of “Rights of Man.” Paine’s work, which advocated the right of the people to overthrow their government, was duly targeted, with a writ for his arrest. Paine fled to France and was represented in absentia by Erskine, who was severely criticized by government supporters in the months leading up to the trial.

At trial, counsel representing the prosecution argued that Paine’s work served only to inflame the populace and distribute radical ideas to those without the experience to understand them in context. Erskine’s reply opened with a defense of the freedom of lawyers to represent whichever clients came to them, followed by an exposition of his views on the nature of the freedom of the press that argued the publication of radical tracts served only to improve the government by highlighting its weaknesses and could not be seditious if published in good faith.

Despite Erskine receiving a rapturous response to his speech, Paine was found guilty, with the verdict seen by the government as legitimizing its repression of radical ideas.

This was a very unpopular case. Here, in part, is what Erskine said to the jury in closing argument:

I will forever, at 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. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end.

Although his unpopular defense of Thomas Paine may have caused him to be ridiculed and cost him public office, Erskine was named Lord Chancellor of England in 1806.

(Sources: “For the Defense, Thomas Erskine, The Most Enlightened Liberal of His Times 1750–1823” by Lloyd Paul Stryker; “The Fine Art of Trial Advocacy: A Young Lawyer’s Resource for Success,” see chapter two.)

Paul Mark Sandler, trial attorney and author, can be reached at [email protected].