It is ironic that after tonight’s episode of ‘Garrow’s Law’ (BBC1, 5 December 2010) people are likely to be asking ‘Who is Thomas Erskine?’, the barrister who made such a dramatic entrance in the final episode of series two. Indeed, so much has William Garrow within a few short weeks lodged himself in the public psyche as the radical reformer of his era that others – who took the greater share of the credit in the past – have been more or less relegated to a secondary or supporting role.
To give credit where it is due, Thomas Erskine (1750-1823) was undoubtedly one of the leading barristers (later King’s Counsel) and advocates of his day, a considerable legal mind and presence in the courtroom. He later became Lord Chancellor even if, like Garrow, he was not generally regarded as being particularly effective in that role (which he left within 12 months). He was made First Baron Erskine in 1806 and his name is associated with many an historic legal ruling. Like Garrow’s family he came from Scotland. Born in Edinburgh (the son of the Earl of Buchan but brought up in some poverty), Erskine is said to have joined the bar by chance following a visit to Assizes where he met Lord Mansfield, a friend of his father’s, who was the presiding judge. Like Garrow, Erskine is associated with the preservation of rights, freedoms and challenging oppression in both criminal or civil cases, including against political-biased or power-based opposition in particular.
He acted in a number of high profile cases, including for (or in some instances against: as to which the trials themselves should be consulted): Captain Baillie who was charged with criminal libel for criticising the Earl of Sandwich, First Lord of the Admiralty, and others concerning abuses at Greenwich Hospital (the role that Garrow was given courtesy of dramatic licence in the penultimate episode of series two); Lord George Gordon (of Gordon Riots fame) on a charge of high treason (1780); the Dean of St Asaph (1783) (seditious libel); Queen Caroline (who was charged with adultery); Thomas Paine, author of the Rights of Man (also seditious libel) (a case which history records may have cost Erskine preferment as Attorney-General); and John Stockdale the printer (1789) (libel on the House of Commons). He was also involved in the cases of Thomas Hardy, John Horne Tooke and John Thelwall who were charged with ‘constructive high treason’ in the notorious State trials of 1794.
Erskine also served as member of Parliament for Portsmouth although his political career is eclipsed by his legal career, by some distance.
Erskine, like Garrow, features in a book written by John Hosettler, Thomas Erskine and Trial by Jury (originally published in 1996 and reissued in 2010 by Waterside Press) in which Hostettler notes that:
‘Garrow and Erskine were contemporaries who often appeared in court in the same case – sometimes in harness and sometimes on opposite sides. There is evidence that they were friends. Both rose from rags to riches, earning huge fees and, more importantly, by sheer skill and eloquence they came to be regarded as two of the brightest stars ever to shine in English criminal law. Unlike another brilliant lawyer, Henry Brougham, who had a superior manner before juries and was rarely successful with them, it was perhaps because of their relatively lowly start in life that Garrow and Erskine both proved able to empathise with juries and somehow infuse their ideas into the minds of those twelve good men and true before whom they so frequently appeared. In court Erskine stood thin and erect, had a clear and melodic voice and a penetrating eye, but Garrow’s questioning of hostile witnesses was more inventive.’
Erskine also features in Lord Birkett’s seminal work, Six Great Advocates (reissued by Penguin in 1961), where he is described as ‘the very greatest advocate who ever practised at the English Bar’. There are members of the Garrow Society who might seek to disagree with this! – and it is a fact that some re-writing of legal history is taking place after the modern-day rehabilitation of Garrow. Nonetheless, it is a real treat to see them sharing the courtroom on television (which they did many times in real life) and flexing their similarly developed forensic muscles. What is clear is that both Erskine and Garrow lived at a time when the courts were becoming something of a free-for-all, a kind of legal Wild West, in which sacred cows were being led away and new and enlightened principles of law were being built. We owe them both a considerable debt of gratitude.