The Ancient Art of Advocacy Logo

Erskine - further speeches and trials

Erskine and Curran were contemporary's and lived in a constitutionally volatile time, when the government of the day was seeking to remove long standing rights and suppress dissent and criticisms of the government. Under the common law of England, Wales and Northern Ireland, a statement was seditious under the common law if it brought into "hatred or contempt" either the Queen or her heirs, the government and constitution, either House of Parliament, or the administration of justice; or if it incited people to attempt to change any matter of Church or state established by law (except by lawful means); or if it promoted discontent among or hostility between British subjects. A person was only guilty of the offence if they had printed words or images and intend any of the above outcomes. Proving that the statement was true was not a defence. As a common law offence whose sentence was not specified by statute, it was punishable with up to life imprisonment or an unlimited fine or both. Erskine was involved in a number of these trials, in fact the first time Erskine got to his feet, it was in a libel trial - the trial of R v Baillie.

R v Baillie

R v Baillie, also known as the Greenwich Hospital Case, was a 1778 prosecution of Thomas Baillie for criminal libel. Baillie, the Lieutenant-Governor of the Greenwich Hospital for Seamen, a facility for injured or pensioned off seamen, had noted irregularities and corruption in the hospital, which was formally run by the Earl of Sandwich. After his official reporting of the problems failed to bring about reform in the hospital, Baillie published a pamphlet that was critical of the hospital's officers, alleging that Sandwich had given appointments to pay off political debts; Sandwich ignored the pamphlet but ensured that Baillie was indicted for criminal libel. Baillie hired five barristers, including Erskine, then newly called to the Bar, and appeared before Lord Mansfield in the Court of King's Bench on 23 November 1778.

After four of the barristers had spoken, Mansfield announced that the court session would resume the next morning rather than continue into the night, which gave Erskine the time he needed to present a full speech rather than a brief comment. In it he accused Sandwich of cowardice and of orchestrating the attack on Baillie, arguing that Baillie was merely doing his duty by attempting to bring the problems with the hospital into the public eye, and was therefore not acting in bad faith. If the issues with the hospital were not acknowledged, Erskine claimed, the Royal Navy would be "crippled by abuses", with seamen no longer willing to risk their lives for a fleet that would fail to treat them well in their retirement. Erskine was successful in having Baillie found not guilty, and after leaving the court was met with a standing ovation; Emory Speer writes that "It is probably true that never did a single speech so completely ensure professional success". pdfYou can read this rip roaring speech here.1.03 MB

Erskine was also involved in a number of other libel trials including:

The pdfprosecution of Cuthell for libel, which you can read here1.74 MB (apologies but the text is a bit hard to read in places) and you can see pdfErskines views in the Friends of the Liberty of the Press Proceedings.2.94 MB

He was also involved in some very odd trials including the brilliantly named pdfR v the Bishops of Bangor for rioting and assault which you can read here.5.63 MB

Erskine and the role of juries

Erskine made several speeches where the role and importance of the jury was discussed, and also dealt with several cases where the case hinged on whether the judge could over-ride the jury. It is worth bearing in mind that Erskine, like Curran, lived in a time where the government of the day, terrified that the French revolution would trigger a similar uprising in the UK, decided that the only way to avoid this contagion was to abuse the criminal law to prevent dissent and criticism, impose oppressive changes that stripped people of long standing rights, and suppressing works that challenged the system of government or Parliament, or the system of governance in the UK. These changes, which heralded a time of oppression for those seeking positive change in the UK system of governance, meant that the government, with the happy consent of Parliament, could change laws easily so as to go after political targets. Often a jury was all that stood between someone charged with a political offence and imprisonment, death or banishment, and juries were a bastion from which the long standing constitutional liberties of England could - and were - defended, particularly by Erskine. 

Amongst his notable cases in 1780s was his successful defence of William Davies Shipley, dean of St Asaph (and son of Jonathan Shipley) who was tried in 1784 at Shrewsbury for seditious libel for publishing Principles of Government, in a Dialogue between a Gentleman and a Farmer, a tract by his brother-in-law Sir William Jones advancing radical views on the relationship between subjects and the state. Erskine's defence included a speech in defence of the rights of juries and an argument explaining the relative rights of juries and judges which you can read pdfhere3.4 MB and pdfhere 6.79 MB . There is a description of Erskines delivery in this case docxhere13.01 KB. Erskines defence anticipated the Libel Act 1792, which laid down the principle that it is for the jury (who previously had only decided the question of publication) and not the judge to decide whether or not a publication is a libel. It is worth remembering that the case of pdfMiss Mary Ann Tocker7.05 MB also resulted in changes to the law of Libel. 

In pdfMorton v Fenn,1.08 MB which was actually a breach of promise case, Erskine talked about the role of juries, and therefore contributed to the debate on the importance of juries as security against the abuses of the State and also their role within the English system. These debates remain ongoing, and therefore his speeches on juries are well worth reading. 


You are not authorised to post comments.