ERSKINE, Hon. James (c.1678-1754), of Prestongrange, nr. Prestonpans, East Lothian.
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Family and Education
b. c.1678, 2nd s. of Charles Erskine, 5th Earl of Mar [S], by Lady Mary Maule, da. of George, 2nd Earl of Panmure [S]. educ. Utrecht c.1700; adv. 1705. m. Rachel, da. of John Chiesly of Dalry (executed 1689 for murdering President George Lockhart), 4s.
Principal keeper of the signet [S] 1705-7; ld. of session (Lord Grange) 1707-34; lord justice clerk 1710-14; sec. for Scotland to Prince of Wales Apr. 1738-45.
Provost of Stirling 1737-d.
‘A good lawyer, a ready and forcible speaker’,1 Erskine was a strict Presbyterian and a prominent member of the General Assembly, with an interest in demonology and the reputation of being a secret libertine.2 Dismissed as a Tory from the post of lord justice clerk at George I’s accession, he took no part in the Fifteen rebellion headed by his brother, Lord Mar, after whose attainder he devoted himself to recovering his family’s forfeited estates and honours. With this object he allied himself with Lord Ilay, Walpole’s electoral manager for Scotland, placing at his disposal the Erskine interest in Stirlingshire, Aberdeenshire, and Clackmannan. In return, Ilay secured permission for him to purchase Lord Mar’s forfeited estates for the benefit of his nephew, Thomas, Lord Erskine, holding out further hopes of a pardon for Mar and the restoration of the family honours.
In 1728 Erskine was asked by his nephew to take steps to prevent Lady Mary Wortley Montagu from acquiring the legal custody of her lunatic sister, Lady Mar, thus depriving the impoverished Lord Mar of the use of her jointure of £1,000 p.a. Erskine responded by kidnapping Lady Mar, with a view to taking her to Scotland, but was intercepted on the way by Lady Mary, with a warrant from the lord chief justice ordering her return. He was more successful with his termagant wife, whom he kidnapped in 1732, keeping her prisoner in the Outer Hebrides till her death in 1745.3
By this time Erskine had become dissatisfied with Ilay for failing to fulfil his promises to obtain a pardon for Mar, who died in 1732, and the restoration of the family honours to Lord Erskine. He had also asked Lord Ilay for a pension for himself. Ilay offered to quarter him on his son-in-law’s office of knight marshal [S], but he refused to be ‘a louse feeding upon my friend’. In 1733 he decided to join forces with Ilay’s opponents, the Squadrone, at the forthcoming general election, writing:
As we can make their elections go clear in several places, so can they ours, in spite of all that Ilay and his Jack Middletons and Milton [Andrew Fletcher, Lord] can do. And we have engaged to mutual assistance, in every place, and they to me in a particular manner, not only as to elections but other things, if Sir Robert tumbles.
Intending to stand himself as an opposition candidate, he arranged to correspond with Pulteney by messenger as his letters were being opened in the post office. On 10 Dec. 1733 he wrote to Lord Marchmont, the father of Alexander and Hugh Hume Campbell:
I meet with some odd unexpected things in my burghs and I see I must have much greater troubles and difficulties of different kinds than I expected ... And I daily discover more of the acts and tricks and lies that were used against me in my absence. I know not any other private commoner that has more reason to wish he may be in Parliament against those people than I have, and I see it plainly that I must get in or be exposed many ways to their wrath.
And two days later:
I have begged lord president of the session, Mr. Robert Dundas and other lawyers to consider all the acts, Scots and British, since the Act 1681, concerning elections for shires or towns that a new act may be proposed in order to make the procedure at elections more certain and to prevent tricks of the sheriffs and clerks. Such an act may cut off one of the unjust ways which the courtiers plainly and barefacedly tell they are to use (as it has been expressly told to myself that they would do with Lord Erskine and me in particular) ... Now that people are setting about the publishing things by the press the terror of prosecutions seizes them since they will be summarily whipt up by magistrates and tried without a jury and condemned and hurried to prison till payment of a fine. I spoke to your Lordship of getting a law made this winter enacting that all crimes, deliquencies and misdemeanours whatsoever should be tried before every competent court in Scotland by a jury as well as they are in England.
He immediately began to prepare materials for such a bill, which was brought in by Dundas in February 1734, when Pulteney wrote to him:
I doubt not but you are apprised of the clause intended to be added to the bill for regulating the elections in North Britain, to render the lords of session incapable of being elected members of Parliament ... whether it will pass or not is very uncertain, though this favourite clause be added to it by Lord Ilay in honour of you ... I take it for granted that you despise the maliciousness of this intention, and will render it of no effect by quitting the employment if it shall be necessary.
Resigning his judgeship, he stood unsuccessfully for Stirling Burghs, but was returned for Clackmannanshire. In his first session he was associated with Dundas in preparing a petition to the House of Lords against the methods used by Ilay to secure the election of the government list of representative peers, and in collecting evidence to support an impeachment of Ilay in the Commons, in each case without success. In the Commons he spoke against the army, 14 Feb. 1735, and supported a bill to reduce the number of playhouses, 5 Mar. In the next session he covered himself with ridicule by ‘a long canting speech’ attacking a bill for repealing a statute of James I against witchcraft. On 16 May 1737 he spoke in a debate on the Porteous riots, opposing the bill of pains and penalties against Edinburgh, also publishing a pamphlet in defence of the Lord provost. But
being so much absent from the courts here and at the time of best business breaks my employment ... I once thought it would have been pretty good as others also thought, but I neither have youth nor ability enough to bear up at the bar under the continued oppression of the grand oppressors and their tools.
He appealed to Pulteney to procure some employment for him either in the city of London or about the Prince of Wales, who made him his secretary for Scotland in 1738. In October 1739 Pulteney asked him to see that all opposition Members from Scotland should be in London for the opening of the session, ‘that joint and right measures may be taken’.4 He supported the motion for the dismissal of Walpole in February 1741.
Meanwhile Erskine had become involved in the negotiations with the Pretender and the French government for a restoration of the Stuarts initiated in 1739 by Lord Lovat. The negotiations were conducted by his intimate friend Macgregor of Balhaldy, who consulted and kept him informed throughout. On 13 Mar. 1740 the Pretender wrote to him, thanking him for his ‘zealous and loyal disposition’, and on 27 Mar. 1741 Erskine sent a letter by messenger to Cardinal Fleury, asking for French help in restoring the Stuarts. Shortly before Walpole’s fall the Pretender suggested that Erskine should assure his friends among the opposition Whigs that if they
enter seriously and heartily into measures for bringing about my restoration ... there is no reasonable demand they can make, either on behalf of themselves in particular, or of the country in general, that I shall not readily and cheerfully comply with.
Erskine decided to approach Pulteney, as ‘there was none [he] had greater intimacy or freedom with’, handing him a written pledge from the Pretender to safeguard English liberties and the Protestant religion, which Pulteney gave him back at their next meeting, saying ‘take your papers, I do not love to have such papers’. Erskine then mentioned the dissatisfaction of the Tories, who formed the bulk of the Opposition, and how difficult it had been to hold it together.
Mr. Pulteney answered that he had done exceeding well, but now he thanked God that they were out of the power of the Tories, for Sir Robert Walpole ... had sent to them and agreed to resign his offices and leave them to form a ministry such as they found proper.5
Erskine continued in the service of the Prince of Wales after Walpole’s fall, though participating in the talks held in London in 1743 with an agent sent over by the French Government to concert arrangements for a rising.6 He also absented himself from the divisions on the Hanoverians in 1742 and 1744, in which most of the Prince’s followers supported the Government. In Apr. 1743 he informed the Pretender’s representative in Paris that Pulteney, now Lord Bath, and Carteret had managed
to draw the general hatred and execration on themselves more in the space of one year than Lord Orford [Walpole] purchased to himself in twenty;
adding that the Prince had
given himself wholly to them and his countenance is changed towards those to whom once he showed great favour, but who continued true to their old principles, [and that] many think that all such will be quickly dismissed from his family and service, ... though they should be allowed to hang about him some time longer.
He himself hung on to his post till May 1745, when he was replaced by Sir John Gordon.
In June 1745 Erskine informed the Pretender that, with the Administration deeply divided and most of the troops out of the kingdom,
there never was and never can be such a favourable opportunity to attempt your Majesty’s restoration ... If the Prince landed in the present circumstances with ten battalions, or even a smaller body of troops, there will be no opposition, but, on the contrary, that his Royal Highness will be received with blessings and acclamations.
But when he heard that the Young Pretender, tired of the delays in the French preparations, might come to Scotland without troops or arms, he condemned the project as ‘very weak and very rash’, predicting that ‘some great misfortune will ensue’. He was in London during the whole of the rebellion, joining the English Jacobites in September in appealing for a body of French troops to be landed near London without delay.7
After the collapse of the rebellion, Erskine went over to the Government, voting for the Hanoverians in April 1746 when he was classed as a ‘new ally’ of the Pelhams. In March 1747, at the request of Ilay, now 3rd Duke of Argyll, he sent Hardwicke suggestions for the bill abolishing hereditary jurisdictions, so as to avoid debate on amendments which might prove embarrassing to the ministry,8 speaking for the bill in April.9 He did not stand in 1747. He may have been the ‘Mr. Erskine’ drawing a secret service pension of £400 p.a. shown in a list of such pensions saved since April 1754,10 when he died, 24 Jan., aged 75.
Ref Volumes: 1715-1754
Author: Eveline Cruickshanks
- 1. Ramsay of Ochtertyre, Scotland and Scotsmen in 18th Cent. i. 83.
- 2. Autobiog. of Dr. Alexander Carlyle (1910 ed.), 18.
- 3. Spalding Club Misc. iii. 27-45; R. Halsband, Life of Lady Mary Wortley Montagu, 133-5; Soc. of Antiq. of Scotland Proc. xi. 593-608.
- 4. HMC Mar and Kellie, 529-31; HMC Polwarth, v. 73-75, 95-107, 144-5, 173; Carlyle, 10; More Culloden Pprs. iii. 133.
- 5. Stuart mss 221/52, 233/202, 232/160-2, 240/140; Browne, Hist. of the Highlands, ii. 443.
- 6. Murray of Broughton, Memorials (Sc. Hist. Soc. xxvii), 48, 61, 62-63.
- 7. Stuart mss 249/83, 268/5; Browne, ii. 464-5.
- 8. Add. 35446, ff. 151-5.
- 9. HMC Polwarth, v. 235.
- 10. Add. 33038, f. 352.