Erskine, John (1695-1768) (DNB00)

From Wikisource
Jump to navigation Jump to search

ERSKINE, JOHN (1695–1768), Scotch lawyer, son of the Hon. Colonel John Erskine of Carnock, was born in 1695. He studied law and was admitted a member of the Faculty of Advocates in 1719, and practised without special success for some years. In 1737 he was appointed by the faculty and the town council, on the death of Professor Bain, to succeed him in the chair of Scots law in the university of Edinburgh. The emoluments were a salary of 100l. per annum and the fees. He was successful as a lecturer, and his class was well attended. In 1765 he resigned this appointment and devoted himself exclusively to the preparation of his ‘Institutes,’ which was published as a posthumous work. He died at Cardross, an estate formerly belonging to his grandfather, Lord Cardross (and which he had purchased in 1746), on 1 March 1768. Erskine married, first, Margaret Melville of Balgarvie, Fifeshire; secondly, Ann Stirling of Keir. By his first wife he had issue John Erskine (1721–1813), well known as the leader of the evangelical party in the Scottish church; by his second wife he had a family of four sons and two daughters.

Erskine wrote only two works, but both of these were of very great importance. They were: 1. ‘Principles of the Law of Scotland, in the order of Sir George Mackenzie's Institutions of that Law.’ This was first published in 1754 as a manual for the use of his class, for whom he had hitherto prescribed Sir George Mackenzie's work. It became at once popular. New editions were published under the author's supervision in 1757 and 1764, and after his death it was edited in succession by Gillon, Professor Schank More, Mr. Guthrie Smith, and Mr. William Guthrie. The seventeenth edition was published in 1886 by Professor Macpherson, by whom ‘the book has been restored to its original position as the Scots law manual in the metropolitan university.’ 2. ‘Institutes of the Law of Scotland, in four books, in the order of Sir George Mackenzie's Institutions of that Law.’ The first edition was published after the author's death in 1773, from his notes, which were carefully revised; the second was edited in 1784 by Lord Woodhouselee, who added the rubrics retained in subsequent issues; the fourth was issued in 1805 by Joseph Gillon; the fifth and sixth by Maxwell Morrison in 1812; the seventh by Lord Ivory in 1828, ‘a model of full and accurate annotation;’ the eighth by Alexander Macallan in 1838, and the ninth by J. B. Nicholson in 1871.

The ‘Institutes’ are divided into four books. The first treats of law in general, of the courts of Scotland, and of the relations between husband and wife, parent and child, minors and their tutors and curators, and master and servant; the second treats chiefly of heritable rights; the third of contracts and successions; the fourth of actions and crimes. The small space given to mercantile law in the work has been frequently remarked on. It has been pointed out by Professor Bell that at the time when Erskine wrote commercial enterprise in Scotland was at a low ebb. The failure of the Darien expedition, succeeded by the rebellions of 1715 and 1745, had turned the attention of the people to other subjects, while the great change in the possessors of landed property, due to the risings, made that branch of the law for a considerable period of preponderating importance.

In other respects Erskine's works were written at a fortunate period. The law of Scotland, already considerably modified in some directions by English influence, had assumed in all its most essential parts its present shape. Even in commercial law the foundation was already laid, though the superstructure was not as yet erected. A treatise more suited to the needs of the time than the philosophical one of Stair or the two slight ‘Institutions’ of Sir George Mackenzie was required. Erskine supplied the want by giving a clear, connected view of the whole law, written in simple and direct language. The book is everywhere practical and to the point. Hence its value for everyday use. ‘His work,’ says Mr. Æneas Mackay, ‘is peculiarly adapted to the tendencies of the Scottish intellect; plain rather than subtle, sure so far as he goes rather than going to the bottom of the subject; he is the lawyer of common sense, less antiquarian, and therefore now more practical, but also less philosophical and less learned than Stair.’

[Works; Anderson's Scottish Nation, ii. 158–9; Chambers's Dict. of Eminent Scotsmen, i. 547–8; Scots Mag. February 1768, p. 111; Mackay's Memoirs of Stair (Edin. 1873), p. 172.]

F. W-t.