Family and Education

b. 10 Jan. 1750, 3rd s. of Henry David, 10th Earl of Buchan [S], and bro. of Hon. Henry Erskine*. educ. St. Andrews g.s.; St. Andrews Univ. 1762-3; Trinity Coll. Camb. 1776-8; L. Inn 1775, called 1778. m. (1) 29 Mar. 1770, at Gretna Green, Frances (d. 26 Dec. 1805), da. of Daniel Moore^† of Widmere Manor, Bucks., 4s. 4da.; (2) 12 Oct. 1818, at Gretna Green, his mistress Sara née Buck, a blacksmith’s da. (sep. 1821), 1s. and other (previous) issue. cr. Baron Erskine 10 Feb. 1806; KT 23 Feb. 1815.

Offices Held

Midshipman RN 1764, acting lt. 1768; ensign 1st Ft. 1768, lt. 1772, sold out 1775; lt.-col. commdt. L. Inn vols. 1803.

KC with patent of precedence 16 May 1783; attorney-gen. to Prince of Wales 1783-1792; bencher, L. Inn 1785, treasurer 1795; chancellor, duchy of Cornwall Apr. 1802-6; ld. chancellor Feb. 1802-Apr. 1807; PC 6 Feb. 1806.

Biography

Erskine’s impression on his contemporaries as a legal luminary was thus described by Samuel Egerton Brydges*:

He was a most brilliant, but sometimes a shooting star. He had every variety of intellect, and was adorned with all beauty of language, all harmony of utterance, and all fire and grace of expression in his countenance and form. As he was of the highest Scottish nobility in blood, so he showed it in all his mien, tone, and manners. The very conflicting brilliance of his numerous superiorities led him into unsteadiness, and often into errors. He sometimes passed too hastily over subjects to have entered deep into them, and thus incurred the charge of superficial talents, when no man was more capable of entering profoundly into an investigation, or had a more sagacious and correct judgment when he chose to give his mind to it; but the meteors that danced before him often led him on too rapidly and too irregularly. He was apt to grasp at too much.

To this might be added the remark of Sir Joshua Reynolds after painting his portrait, ‘There is a wildness in his eye, approaching to madness, such as I scarcely ever met with in any other instance’.1

Out of the Parliament of 1784, as one of Fox’s martyrs, Erskine not only consolidated his reputation in King’s bench (his income reached £10,000 in 1791) but reinforced his political connexion with the Whigs. Already a member of Brooks’s, he joined the Whig Club, 8 Nov. 1784, championed Fox and abused Pitt as counsel at the bar of the House and was predestined for the attorney-generalship, if the Whigs took office under the Regency. At the election of 1790 he was restored to his seat for Portsmouth unopposed, on the interest of Sir John Carter. Next the French revolution claimed him. On 25 Sept. 1790 Samuel Romilly reported:

Erskine has returned from Paris a violent democrat. He has had a coat made of the uniform of the Jacobins, with buttons bearing this inscription ‘Vivre libre ou mourir’, and he says he intends to wear it in our House of Commons.2

In fact his first effort in the House was a piece of professional conservatism. In a speech interrupted by fatigue on 17 Dec. 1790 and resumed on 22 Dec. he stated the legal grounds against the continuation of Warren Hastings’s impeachment; though on 14 Feb. 1791 he added that if the House would not swallow them, he did not wish to stop the prosecution. He was absent, supposed favourable, on the motion to exempt the Scots from the Test Act, 10 May. On 27 May he seconded Sheridan’s motion in favour of burgh reform in Scotland and on 31 May gave his support to Fox’s libel bill.

Edmund Burke had alienated Erskine by his impersonal view of the monarchy in the Regency crisis and by a personal rebuff during the debates of December 1790. Erskine was further annoyed by Burke’s Reflections on the French Revolution, despite its ‘splendid passages’. On 30 Apr. 1792 he stood up in the House as an avowed Friend of the People, advocating parliamentary reform and reproaching Pitt, whom he had never forgiven for putting down his maiden speech in the House, for abandoning that cause. He claimed that Pitt had nevertheless yielded to popular opinion—ill-represented by the minorities in the House which Erskine had joined—in retreating from a war with Russia. Erskine’s line endangered his friendship with the Prince of Wales, whose attorney-general he was, and those who believed he was incapable of a ‘determined political tie to anyone’ and noted that he did not attend the Friends of the People’s meetings, supposed that he would change his tack. But he did not. On 3 Nov. 1792 he promoted a general petition for parliamentary reform at the Freemasons Tavern, and next, ‘outrageously French’, prepared the hopeless defence to be translated ‘into all languages’ of Thomas Paine, author of The Rights of Man.3 Before the trial came on, he took the offensive in the House (13 Dec.) blaming the royal proclamation against sedition and Burke’s vapourings for dissatisfaction, and warning that it could not be allayed by coercion. He went on to support Fox’s bid to avert war with revolutionary France, 15 Dec. After Paine’s conviction, dismissed quietly from office by the Prince he was a pillar and hero of the Society of the Friends to the Liberty of the Press. On 15 and 26 Mar. 1793 he opposed the bill against traitorous correspondence as ‘unnecessary and dangerous’, legally objectionable because it made ‘the intent as criminal as the deed’. On 7 May he seconded Grey’s motion for parliamentary reform. He had received the thanks of the French assembly for his contribution of a jury system to their civil code of law.4 A champion of Frost, Muir and Palmer, and Walker, the prosecuted radicals, he was the triumphant counsel for Hardy, John Horne Tooke* and Thelwall in the so-called ‘treason trials’ in 1794 and emerged something of a popular hero. He recounted his exploits to the House on 5 Jan. 1795, in supporting the repeal of the suspension of habeas corpus, and claimed, 23 Jan., that the trials revealed that there was no conspiracy against the constitution to answer for. Meanwhile he privately hawked about a ‘whole plan of virtuous representation’, substituting new county Members for rotten boroughs, with an enlarged franchise and triennial elections.5

Charles Abbot, a new Member, had this to say of Erskine in 1795:

Seldom attending the House; always elegant in his diction in Parliament, as at the bar; equally desultory in his compositions, equally fond of making his own panegyric the principal theme. His power of commanding the passions of a jury, so justly celebrated beyond the reputation of all his predecessors in Westminster Hall, wholly fails of its effect in Parliament; perhaps the chief cause of this is the little degree of personal respect and consideration which he has established by the extravagance of his political harangues out of doors, at party meetings, and in his professional employments.6

Nevertheless Erskine was active in debate in opposition to government by terror, as he characterized the coercive bills of November 1795, presenting petitions against them and insisting on the prosecution of John Reeves’s monarchist pamphlet as a libel on the constitution. He also campaigned against the bills out of doors.

On 30 Dec. 1796 Erskine led the opposition to the address, as an advocate for peace, though he was taken ill in doing so, Fox taking over the argument. He seems to have given up a bill he was projecting to improve the law on parliamentary elections. As Fox’s champion he published on 11 Feb. 1797 A view of the causes and consequences of the present war with France, calling for a peaceful entente cordiale and reform of Parliament. It went into many editions and outraged Burke, then stepping into his grave, who had to leave a reply to others. Fox, who had no preview of it but approved it at the Whig Club on 14 Feb., hoped that it would be a manifesto for the secession from Parliament of himself and his friends. Erskine ably seconded Grey’s reform motion of 26 May 1797 with arguments of his own and it was a prelude to secession, of which he was an ‘earnest and vehement’ supporter. He spoke on legal business on 21 June, but not again until the session of 1800. He did not return to the House with Fox in December 1797. Out of the House, he had to be prevented from securing the formal expulsion of the Duke of Portland from the Whig Club in retaliation for Fox’s dismissal from the Privy Council.7 Against his better judgment, he was involved in the case of the United Irishman Arthur O’Connor in 1799. On 3 Feb. 1800 he broke his silence with an argumentative speech against the refusal to negotiate with Buonaparte; he spoke on legal questions on 1 May and 10 June and pleaded for toleration in his support of the monastic institution bill, 23 and 24 June. On 10 Mar. and 4 May 1801 he supported the eligibility of clergymen to sit in the House, with reference to his former client John Horne Tooke.

The removal of Pitt from power diminished Erskine’s animus against the government, though he voted with opposition on 25 Mar. and 14 Apr. 1801. Addington’s pacific foreign policy wiped it out and, after applauding him at Fox’s anniversary dinner in October, he offered the premier his ‘perfect approbation’ in the House, 13 Nov. 1801. On 16 Nov. an interview with Addington, who promised an end to repression at home and found that Erskine had no objection to advancement in his profession, clinched the deal, with due safeguards for Erskine’s party attachments. George Tierney, who was a fellow-traveller, reported that there was ‘no doubt’ of Erskine’s accepting office ‘as soon as ever a place can be found for him and Addington is well inclined to make room for him as soon as ever he can’. Meanwhile Erskine was promised that he would not be opposed at Portsmouth at the next election. The place he was thought to be awaiting was that of chief justice of the common pleas, held by Lord Kenyon. Erskine had urged Kenyon not to retire on 15 Oct. 1800, but by now Kenyon was thought to be at death’s door. Fox was ‘very ready to agree to Erskine’s taking chief justice, but not to his taking attorney-general, which Erskine says is the road’. In fact, Kenyon recovered.8

Erskine was vexed to find himself abused at the Whig Club, but consoled by the Prince of Wales who made him chancellor of the duchy of Cornwall, according to previous intentions. As such, he supported the motion for inquiry into the Prince’s duchy revenues, 31 Mar. 1802. On 7 May he dissented from any expression of public thanks to Pitt for his services, suggesting rather a critical inquiry. On 23 Sept. he was presented to Buonaparte at Paris as the Prince’s chancellor, which meant nothing to his host, who ignored him. Informed that he had overlooked ‘a leader in the British senate and the first of public pleaders’, Buonaparte made up for the faux pas in a second interview, in anticipation of which Erskine, ‘jabbering his lingua franca’, took care ‘to explain who he is, et tout ses faits et dits, to whoever comes near him’.9 On 4 Mar. 1803, on behalf of the Prince, he disclaimed any wish to promote inquiry into the duchy of Cornwall revenues, but urged it in his capacity as a Member. Six days later he announced the Prince’s wish that the question should no longer be pursued in the House. Far more embarrassing to him was the resumption of hostilities with France. In the debate of 23 May 1803 he made what Grey called a ‘most lamentable’ speech, and Creevey ‘the most confused, unintelligible, inefficient performance that ever came from the mouth of man’, critical of the ministerial negotiations, but ready in support of the war. Pitt shredded it, the Whigs were appalled and ‘it was thought Erskine would hardly venture to speak in the House again’; but after voting with ministers on 3 June, he rose again on 5 July in a coherent defence of their resumption of wartime taxation, as an honourable peace was out of the question.10

Erskine’s ambiguous political position became most painful to him in the autumn of 1803 when he foresaw an alliance of Fox with Pitt and the Grenvillite ‘new opposition’ against Addington, from whom he expected the offer of the attorney-generalship. On 12 Dec. he defended the volunteers against William Windham, who wished to see them eclipsed by the regular army. Fox was told Erskine ‘made a foolish figure’ and at first received no rejoinder from Erskine to his declaration of alignment with Windham and the Grenvillites. In January 1804 it came, in the form of a remonstrance devised by Erskine at Norfolk House and signed by a number of like-minded Whigs who disliked the ‘sanguinary’ Grenvilles. On 15 Mar. 1804, with some of these allies, he divided with ministers against Pitt’s naval motion. On 19 Mar., admittedly, he started a legal difficulty about a clause in Addington’s volunteer consolidation bill, but, as if he took the hint, Addington at last offered him the attorney-generalship. His refusal was attributed to the Prince of Wales’s persuasion. Fox heard that he declined reluctantly, but had forecast: ‘His misery in the situation of attorney-general will be extreme. His best plan would be to get himself thrown out at Portsmouth, and so sneak out of Parliament. I do not expect to hear from him.’ Both Fox and Grey pitied him and when Pitt alone succeeded Addington a month later, he found his way back listed ‘Prince’. He was a steward for Burdett’s election, opposed Pitt’s additional force bill, was listed ‘Fox and Grenville’ in September 1804, and by November he had gone to Fox to make ‘a fresh and full profession of adherence and attachment’. He never again uttered in the House of Commons, it seems, but voted against ministers on war with Spain, 12 Feb. 1805, for the repeal of Pitt’s Additional Force Act, 6 Mar., and on Melville’s conduct, 8 Apr. He was regarded as a potential go-between for Addington with the opposition, but in April 1805 took alarm at the prospect of a coalition of Fox with Pitt; so there was not much likelihood in the report in November that he was hoped for by the government as a recruit.11 They had listed him ‘Opposition’ in July.

Erskine’s appointment as lord chancellor by the Grenville ministry in February 1806 came as an anti-climax. It was the place awarded him by hostile caricaturists ten years before and conjured up for him by Lord Moira if there had been a Regency in 1801. But he obtained it only after Sir James Mansfield and Lord Ellenborough had refused it, and the latter, whose place as lord chief justice had been earmarked for Erskine, made no secret of his belief that Erskine was unfitted for the woolsack. Unperturbed by his ignorance of equity, he accepted it with the blessing of the Prince of Wales and placed himself in pupillage to Sir Samuel Romilly. There was a storm of criticism, but the King, expected to veto it, did not demur. The report was that he was ‘put in only that they may make him a peer and give him a good pension’. He distinguished himself by his dignity as lord high steward at Melville’s impeachment, but by his levity at other public functions. He provided for his sons, whose mother had recently died, but did not marry his mistress, even while presiding over the ‘delicate investigation’ into the Princess of Wales’s morals. He objected to the ministry’s Catholic relief proposals, but still more to going out of office, and made a personal appeal to the King not to exact the pledge which spelt dismissal for the ministry. His re-enactment at private parties of this, and the King’s subsequent reply, which shocked him into admitting that George III was neither a fool nor mad, was described by Sheridan as Erskine’s most brilliant performance—he was the most indiscreet of cabinet ministers. He was the last to go, pausing only to make his son-in-law a master in Chancery.12

Erskine went into opposition in 1807, but fared no better in the Lords than in the Commons. His indiscretions continued—he was markedly pro-American, having invested heavily in American stock, which he sold at great loss in December 1807. He had induced Fox to send his eldest son to Washington to promote Anglo-American friendship. He had ‘talked for years of a bill he was to bring into Parliament to prevent cruelty towards [animals]’. His bill passed the Lords, only to be rejected by the Commons in June 1809. He missed the bar and sought distraction everywhere. He visited Sir Francis Burdett in the Tower, to encourage him, in 1810. The Prince of Wales was now his mainstay and he was expected to be restored to office under the Regency, but could not sway the Whig leaders. He had to be content with the Thistle, obtained him by the Regent in 1815, which led to his silently supporting the renewal of hostilities with Buonaparte. Henry Brougham reported him as saying that year that ‘he passes the happiest hours of his life at the Pavilion’ and added ‘which is like enough, if his w—e knocks him down before his son as she lately did’. Disguised as an old woman, he took her to Gretna Green, but she was deranged and the marriage was a disaster. So were his agricultural experiments in Sussex (he could not tell barley from lavender). He was the author of a political romance Armata and of A Defence of the Whigs over the Westminster election in 1819, opposed repressive legislation and quarrelled with George IV after espousing the Queen’s cause in 1820.13 He died in Scotland, where he was virtually a stranger, 17 Nov. 1823.

Ref Volumes: 1790-1820

Author: R. G. Thorne

Notes

• 1. Brydges, Autobiog, i. 295; Glenbervie Diaries, i. 139.
• 2. Romilly, Mems. i. 408.
• 3. HMC Kenyon, 535; Rose Diaries, ii. 253; Whitbread mss W1/4427; Diary of Madame d’Arblay ed. Dobson, v. 96; Grey mss, Tierney to Grey, 4 Nov. 1792; Burke Corresp. vii. 315.
• 4. Malmesbury Diaries, ii. 352; Broughton, Recollections, ii. 161, 166.
• 5. Twiss, Eldon, i. 270, 273-8; Ld. Eldon’s Anecdote Bk. 173; Diary of Madame d’Arblay, v. 259.
• 6. Colchester, i. 24.
• 7. PRO 30/9/31, Abbot diary, 1 June 1796; Burke Corresp. ix. 240; Add. 47569, f. 71; 47573, f. 27; 51533, Erskine to Holland [Jan.]; Blair Adam mss, Fox to Adam, Sunday [4 Feb.]; Morning Chron. 15 Feb., 7 June 1797; Holland, Mems. Whig Party, i. 85; Herts. RO, Baker mss D/E Bk. f. 260.
• 8. Dorset RO, Bond mss D 367, Erskine to Bond, 18 Feb.; The Times, 12 Oct. 1801, 27 Jan. 1802; Pellew, Sidmouth, i. 476-8; Grey mss, Erskine to Grey [Dec.], Whitbread to same, 7 Dec.; Fitzwilliam mss, X516/33, Laurence to Fitzwilliam [17 Dec. 1801]; HMC Kenyon, 554; Hants RO, Tierney mss 52g; Lansdowne mss, Lansdowne to Petty, 26 Feb. 1802.
• 9. Grey mss, Grey to Whitbread, 31 Jan. [1802]; Farington, ii. 32, 56; Broughton, ii. 163; Add. 51799, Fitzpatrick to Holland, 5 Oct. [1802]; Leveson Gower, i. 366.
• 10. Grey mss, Grey to his wife, 24 May; Add. 51736, Caroline Fox to Holland, 31 May 1803; Creevey Pprs. ed. Maxwell, i. 15; Sheridan Letters ed. Price, ii. 196; Farington, ii. 101; The Times, 8 June, 8 July 1803.
• 11. Pellew, Sidmouth, ii. 256; Lonsdale mss, Ward to Lowther, 11 Nov. 1803; A. Fergusson, Henry Erskine, 416; Add. 47565, ff. 105, 118, 248; Creevey Pprs. i. 19; Colchester, i. 480, 481, 488; Moore, Mems. Sheridan, ii. 324; Glenbervie Diaries, i. 372; Grey mss, Grey to Fox, 8 Apr. 1804; Buckingham, Court and Cabinets, iii. 372; HMC Fortescue, vii. 236, 311; Sidmouth mss, Sidmouth to J. H. Addington, 4 Sept. 1805; HMC Bathurst, 47.
• 12. Canning and His Friends, i. 119; Glenbervie Diaries, i. 230, 413; ii. 330, 331; Romilly, ii. 134, 192, 193, 198; HMC Fortescue, vii. 349; viii. 10; Colchester, ii. 36; PRO 30/12/15/1; Farington, iii. 201; Jackson Diaries, i. 401; Grey mss, Erskine to Howick, 15 Mar., reply 17 Mar. 1807; Croker Pprs. ed. Jennings, i. 299; Broughton, iii. 80; P. H. Fitzgerald, Lives of the Sheridans, ii. 131.
• 13. Glenbervie Diaries, ii. 16, 335; Bond mss D 367, Jekyll to Bond, 14 Dec. 1807, 7 Jan. 1809; Romilly, ii. 239, 365; iii. 41, 156, 172; Leveson Gower, ii. 314; HMC Fortescue, x. 34, 83; HMC Hastings, iii. 295-6; HMC Bathurst, 322; Creevey Pprs. i. 211; Farington, viii. 268; Sydney Smith Letters ed. N. C. Smith, i. 316; Stirling, Coke of Norfolk (1912), i. 397-8; Broughton, ii. 115, 165.