Chapter XXIV
Henry Erskine—His Ability and Wit—Tributes to his Character—Dismissal as Dean of Faculty—John Clerk—Reputation at the Bar—His Private Tastes—Art and Literature—Odd Habits—Anecdotes of Clerk and his Father.
The Hon. Henry Erskine, the acknowledged leader of the Scottish Bar, and one of the ablest and wittiest of men, was a son of the fifth Earl of Buchan, who died in 1767, and was succeeded in the title by his eldest son David. A younger brother of Henry’s was equally illustrious at the English Bar as the undaunted defender first of Captain Baillie, who was indicted for libel at the instigation of Lord Sandwich in 1778: next in 1792 of Tom Paine, ‘victorious needleman,’ indicted for publishing the Rights of Man: and then in 1794 of Hardy, Horne Tooke, and Thelwall, accused of high treason. This was Thomas Erskine, who became Lord Chancellor of England and was raised to the peerage as Baron Erskine of Restormel in 1806. All the brothers were strongly attached to the Whig party. Under the coalition government of North and Fox in 1783 Henry Erskine was for a short time Lord Advocate, an office which he held again in 1806. His fame was spread throughout Scotland as the constant and disinterested defender of the helpless in distress.
‘And all the oppress’d who wanted strength
Had his at their command.’
Like his brother, he was absolutely fearless in the exposure of wrong, and his name became the terror of every high-handed ‘petty tyrant’ in the land. It is said that a poor man in a remote part of the country, who was threatened with the law by his landlord for the purpose of compelling him to submit to some injustice, at once turned upon him with bold indignation and said, ‘Ye dinna ken what ye’re sayin’, maister; there’s no a man in a’ Scotland need want a friend or fear an enemy sae lang as Harry Erskine is to the fore.’ In his Life of Jeffrey Lord Cockburn says of Erskine: ‘His name can no sooner be mentioned than it suggests ideas of wit, with which, in many memories, the recollection of him is chiefly associated. A tall and rather slender figure, a face sparkling with vivacity, a clear sweet voice, and a general suffusion of elegance, gave him a striking and pleasing appearance.... He was the only one of the marked Edinburgh Whigs who was not received coldly in the private society of their opponents. Nothing was so sour as not to be sweetened by the glance, the voice, the gaiety, the beauty, of Henry Erskine.’ Scott speaks of him in the same affectionate strain—‘Henry Erskine was the best-natured man I ever knew: thoroughly a gentleman, and with but one fault—he could not say No. His wit was of the very kindest, best-humoured, and gayest sort that ever cheered society.’ It is a matter for deep regret that the public career of so rare and eminent a man should have been dependent upon the ups and downs of politics. Even the post of Dean of the Faculty of Advocates, to which he had been elected for eight years in succession, was taken from him in 1796. He had presided at a public meeting to protest against the war with France. Such a defiance could not at such a time be overlooked, and the more powerful party employed their large majority to displace him. But even this was done without malevolence: the motion for dismissal—moved by Charles Hope—in no way disturbed the personal friendship between the two men.
John Clerk, raised to the Bench as Lord Eldin in his old age, was a worthy compeer of Erskine in his steadfast adherence to Whiggery at the cost of professional advancement. He was Solicitor-General in 1806, when Erskine was Lord Advocate. His fame was, therefore, won while he was at the Bar, of which, after his friend’s retirement, he became the acknowledged leader. But his powerful sarcasm and his great gift of humour, combined with his remarkable appearance and popular principles, laid hold of the imagination of men and gained him quite a national reputation. It is of him that Cockburn says that the conditions of his private and his professional life almost amounted to the possession of two natures.
‘A contracted limb, which made him pitch when he walked, and only admitted of his standing erect when he poised it in the air, added to the peculiarity of a figure with which so many other ideas of oddity were connected. Blue eyes, very bushy eyebrows, coarse grizzly hair, always in disorder, and firm, projecting features, made his face and head not unlike that of a thorough-bred shaggy terrier. It was a countenance of great thought and great decision.’
He was fond of literature, and his love of the fine arts grew to be a passion. He had great knowledge of painting, drew and etched cleverly, and occasionally modelled. His consulting-room was an extraordinary scene: ‘Walls covered with books and pictures, of both of which he had a large collection; the floor encumbered by little ill-placed tables, each with a piece of old china on it; strange boxes, bits of sculpture, curious screens and chairs, cats and dogs (his special favourites), and all manner of trash, dead and living, and all in confusion;—John himself sitting in the midst of this museum,—in a red worsted nightcap, his crippled limb resting horizontally on a tripod stool,—and many pairs of spectacles and antique snuffboxes on a small table at his right hand; and there he sits,—perhaps dreaming awake,—probably descanting on some of his crotchets, and certainly abusing his friends the judges,—when recalled to the business in hand; but generally giving acute and vigorous advice.’
The peculiarities which made him a ‘character’ in the court are analysed at some length by Lord Cockburn. One was a habit of discussing, enforcing, and lauding his own virtues, quite without vanity or ostentation, but with quiet assurance, as if it were something he had no concern in. In the end he became fiercely resentful of opposition and suspicious of all who contradicted him. But what most of all made Clerk unique was his extraordinary zeal for his client. The public hugely enjoyed his passionate displays, when he defied and insulted not only his opponent in the case, but even the judges themselves when he found them adverse. Of course in this respect he was a privileged person: his fiery onslaughts being regarded as part of the show, and invariably relieved by some quaint bit of humour.
When he heard a lady on the street behind him point him out as the lame lawyer, he wheeled round and said, ‘Nay, nay, madam, lame man if ye like, but not a lame lawyer, as the Fifteen (i.e. the Judges) know to their cost.’ This ready retort happily illustrates all his peculiarities.
His father, John Clerk of Eldin, was the author of a celebrated work on Naval Tactics. In his old age he is reported to have said of himself and his son: ‘I remember the time when people, seeing John limping on the street, used to ask, “what lame lad that was?” and the answer would be, “that’s the son of Clerk of Eldin.” But now, when I myself am passing, I hear them saying, “what auld, grey-headed man is that?” And the answer is, “that’s the father o’ John Clerk.”’