The Ancient Art of Advocacy Logo

Erskine - the Trial of Thomas Paine

Erskine is one of the greatest legal orators of all time, and therefore his speeches are well worth reading.  His most famous trial is probably that of the Trial of Thomas Paine, though he was often involved in the leading cases of his day. Erskine was a contemporary of Curran and they were both practising during a tumultuous and politically oppressive time, and therefore helped shape some of the rights and freedoms that we hold today. 

The Trial of Thomas Paine

Paine was a very strong supporter of the French Revolution. Conservative intellectual Edmund Burke, who is generally credited as being the founder of modern conservatism, responded with a counter-revolutionary attack entitled Reflections on the Revolution in France (1790), which strongly appealed to the landed class and sold 30,000 copies. Edmund Burke believed that true social stability arises if the nation's poor majority are governed by a minority of wealthy aristocrats, and that lawful inheritance of power (wealth, religious, governing) ensured the propriety of political power being the exclusive domain of the nation's élite social class—the nobility.

Paine's Rights of Man was published on the 13 March 1791. It sold as many as one million copies and was "eagerly read by reformers, Protestant dissenters, democrats, London craftsman, and the skilled factory-hands of the new industrial north. Rights of Man denounced Burke's assertion of the nobility's inherent hereditary wisdom; Paine refutes Burke's definition of Government as "a contrivance of human wisdom". Instead, Paine argues that Government is a contrivance of man, and it follows that hereditary succession and hereditary rights to govern cannot compose a Government—because the wisdom to govern cannot be inherited. Paine argued that:

.. It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect—that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few ... They ... consequently are instruments of injustice ... The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Paine's view was that Government's sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate—especially monarchy and aristocracy. Rights of Man concludes in proposing practical reformations of English government such as a written constitution composed by a national assembly, in the American mould; the elimination of aristocratic titles, because democracy is incompatible with primogeniture, which leads to the despotism of the family; a national budget without allotted military and war expenses; lower taxes for the poor, and subsidised education for them; and a progressive income tax weighted against wealthy estates to prevent the re-emergence of a hereditary aristocracy.

In the closing chapters of Rights of Man, Paine addresses the condition of the poor and outlined a detailed social welfare proposal predicated upon the redirection of government expenditures. From the onset, Paine asserts all citizens have an inherent claim to welfare. Paine declares welfare is not charity, but an irrevocable right. Paine's understanding of welfare seemingly follows his idea of political government. He notes, "Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured".  Paine emphasizes the compatibility between individual rights and societal wellbeing. He fervently contends that crippling poverty undermines the rights of an individual, and consequently the legitimacy of government. Paine posited that popular political revolution is permissible when a government does not safeguard the natural rights of its people. You can read Paine's "Rights of Man" by clicking here. This is a free copy, available from the Internet Archive. 

Unsurprisingly, Thomas Paine was charged with seditious libel. The Government waged a pamphlet war against him, with numerous publications repeating the villification of Paine and a similar number defending him. Government agents followed Paine and instigated mobs, hate meetings, and burnings in effigy. Paine was not there at the trial; he left England before the trial and never returned. Paine was instead represented in absentia by Thomas Erskine, who served as Attorney General to the Prince of Wales. As the trial date approached, both Erskine and Paine were targeted by vicious personal attacks, and both Paine and Erskine had their personal lives dug into. Erskine was absolutely pilloried for defending Thomas Paine and he gave what became known as Erskines "Independence of the Bar" speech, which you can read pdfhere38 KB, where he famously defended the English Bar: 

I will for ever, 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 practise, from that moment the liberties of England are at an end.

 At the trial, Archibald Macdonald, 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 defence of the freedom of lawyers to represent whichever clients came to them, and it followed with an exposition of his views on the nature of the freedom of the press that argued that 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's speech later receiving a rapturous response, Paine was found guilty before Macdonald replied. You can read the various transcripts of this momentous trial below:

pdfProsecution opening4.62 MB

pdfErskines speech to the jury on free speech7.5 MB

Erskine's closing speech:

pdfFirst part4.92 MB
pdfSecond part6.56 MB
pdfFinal address to the jury6.56 MB

Although it failed to sway the jury, Erskine's speech was given a rapturous response. After he left the court, he was confronted by a mob that cheered him and shouted, "Damn Tom Paine, but Erskine for ever, and the Liberty of the Press; the King, the Constitution, and Erskine for ever". The crowd proceeded to unhitch the horses from his carriage and carry the carriage (with him inside) to his lodgings at Serjeant's Inn. For quite a long time afterwards, at any barristers dinner, the toast would be made "To Erskine and independence!".

Pitt's administration, which was highly oppressive, took the guilty verdict in Paine's trial as a sign that further prosecutions for sedition were possible and so began many. One of those was Thomas Walker, who was a friend of Paines and also a radical. In 1794 Walker was prosecuted for treasonable conspiracy; but the evidence was found to be perjured, and the charge was abandoned. At the trial he was successfully defended by Thomas Erskine, and pdfyou can read Erskine's opening speech here.6.86 MB

In the 17 months following the trial, 11 publishers of the Rights of Man were prosecuted, receiving prison sentences of up to four years. They acted as a prelude to the 1794 Treason Trials in which a dozen reformers were indicted for allegedly conspiring to bring about a revolution. Erskine played a prominent role in defending many of them, including Thomas Hardy, John Horne Tooke and John Thelwall, all three of whom were acquitted. We shall go on to look at these in the next section.


You are not authorised to post comments.