ERSKINE ON THE LIMITS OF
TOLERATION
By THEODORE SCHROEDER, of the New York Bar
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*
MONG English speaking people, Thomas Erskine
is quite the only man who has rendered either
conspicuous or effective service, in the forensic
defense of a larger freedom of speech. Some of his ut-
terances, upon this subject, are judicially quoted as au-
thority upon the meaning of our constitutional guaran-
tees for unabridged liberty of utterance. This raises the
question how far may we properly quote Erskine as
such an authority? What were his real convictions
about the limits of toleration? Should it be considered
hazardous to quote, as authority, isolated passages from
Erskine's speeches, for the purpose of justifying the limi-
tation of toleration, even though we could be positive
that he was always untrammelled in the absolutely frank
expression of his opinion upon this subject?
It is regrettable that Erskine left no academic discus-
sion freely and fully setting forth in unequivocal terms
just what was his opinion about a legally limited tolera-
tion. At least to lawyers, it must be manifest that in the
defense of an accused, under conditions then existing for
Erskine, the exigencies of professional duty usually
would preclude any lawyer from defending a belief in
wnabridged freedom of speech, even though he actually
believed in it. Under the English system it would have
been absurd to have based a defense upon the broad
proposition that the unwritten constitution prohibited
all laws anywise abridging freedom of utterance. In his
contentions, as to what was the existing law under which
he was serving a defendant, it became Erskine's plain
duty to claim, or defend, no broader principles of liberty
than were necessary for the acquittal of each particular
I
client. In and for the purposes of every case defended
by him, his manifest obligation and interest was to as-
sume for his client the least possible burden, and this
obligation tended to induce the maximum of conces-
sions, to the prosecution, consistent with the acquittal of
his client. His duty to his client was to secure the most
favorable interpretation of the existing laws then
abridging freedom of speech and not to indulge in aca-
demic discussions for their ultimate total abolition.
These considerations impose the inference that even if
Erskine had believed in unabridged freedom of utterance,
its defense could hardly have been the essence of his fo-
rensic discussions, and, if in these it found expression at
all, it would be only in an inadvertent or incidental way.
This brings me back to the question: Did Erskine
really believe in the unabridged liberty for the utterance
of ones opinions? If not, his opinions can not be prop-
erly used as an aid to the interpretation of our constitu-
tional guarantees. If he did believe in unabridged free-
dom of speech, then, it seems to me, our courts have per-
verted his sentiments in order to make them an author-
ity for the curtailment of our liberty, in spite of our
constitutions. May it not be that our courts have ignored
Erskine's real opinions, to explain away our constitu-
tional guarantees by quoting, from Erskine, isolated
passages, dictated by expediency, or expressing only the
facts of practice, under a system of limited liberty by
permission, and so actually misrepresenting the real
Erskine, by mistaking such utterances as general stand-
ards by which to define and determine the existence of
unabridged freedom of speech.
It does seem to me that in this matter, if we content
ourselves with such superficiality as our courts have
used, it would be very easy to prove that Erskine did not
at all believe in unabridged freedom of speech, and there-
fore is not in the least an authority on the construction
of the free-speech clauses of our constitutions. Did not
Erskine successfully prosecute Paine's Age of Reason
which no public prosecutor, or court, in America has
ever asserted to be beyond the protection of our consti-
2:
tutional guarantees of free speech? The editor of Er-
skine's speeches, as published in 1810, commenting upon
the apparent conflict between his speech prosecuting
Paine’s “Age of Reason” and that other speech of his
in defense of Paine’s “Right of Man,” and evidently
wishing to establish for Erskine a reputation for gen-
eral conservatism, said of his defenses of liberty that
these “we can only consider as the argument of an
advocate bound to give the best assistance to a client,”
but that speech of Erskine's demanding the abridgment
of freedom of the press, the editor assures us, “may be
considered as containing his [Erskine's] own opinions
and principles.” "
When we thus find Erskine cited as an authority both
for and against unabridged freedom of speech, we are
forced to conclude that his real opinions on the limits
of toleration must be found, if found at all, in those little
incidental indiscretions of his arguments, which are
deemed indiscretions because unnecessary to the imme-
diate purposes of his client's defense, and in the nature
of a claim against his interests, because a claim of either
too much or too little, for his client's good. At times
such indiscretions are quite unavoidable to persons very
much in earnest, and they arise out of the psychologic
difficulty of adhering to the limitations of a special plea,
when such limitations conflict with, or do not include all
that is essential to a correct portrayal of the pleader's
convictions. Did Erskine portray his real convictions
by any such inadvertencies?
To my mind, one of the essential tests of unabridged
freedom of speech is this, that no man shall be punished
criminally for any utterance of his, upon any subject,
no matter how offensive, or how dangerous may be its
tendency, when that tendency is only speculatively, pro-
spectively and imaginatively ascertained. This admits
the right to indulge, with impunity, even in the fruitless
advocacy of “treason” and of course the lesser crimes,
and demands that men should not be punished for a
* Erskine's Speeches, Vol. 2, p. 183-184. -->
• 3
mere psychologic offense, unconnected with criminal in-
tent and with overt acts of invasion, or with any actually
ascertained and resultant material injury.”
How then did Erskine stand with reference to, un-
abridged freedom of speech, according to this test,
which requires that speech, merely as such, shall always
be free, and that actual and material resultant injury, or
an act with the imminent danger thereof, according to
the known laws of the physical universe, shall be always
one of the conditions precedent to the punishment of a
mere speaker? Intent should be another.
The following extracts from Erskine's published
speeches are the answers to my question. These are the
spontaneous inadvertencies which I believe portray his
real convictions upon this issue now under consideration.
The italics used are mine.”
“I maintain that opinion is free, and that conduct
alone is amenable to law.
“The principle is this that every man, while he obeys
the laws [prohibiting invasive acts], is to think for him-
self, and to communicate what he thinks. The very ends
of society exact this license, and the policy of the law,
in its provisions for its security, has tacitly sanctioned it.
The real fact is, that writing against a free and well pro-
portioned government, need not be guarded against by
laws. They cannot often exist and never with effect.” “
“I am not contending for uncontrolled conduct, but
for freedom of opinion.” "
“Chief Justice Wright (no friend to the liberty of the
subject) * * * * interrupted him [The Attorney Gen-
eral] and said, ‘Yes, Mr. Attorney, I will tell you what
they offer, which it will lie upon you to answer; they
would have to show the jury how this petition HAS
*For a more complete statement and justification of this view
see Central Law Journal, Mch. 26, 1909, and Mch. 7 to 28, 1910;
MoTHER EARTH, June 1907-May 1910. These will be incorporated
in “Obscene Literature and Constitutional Law” now in press.
* Erskine's Speeches, Vol. 2, p. 104, Paine Case.
“Erskine's Speeches, Vol. 2, p. 133, Paine Case.
"Erskine's Speeches, Vol. 2, p. 159, Paine Case.
4.
disturbed, the government, or diminished the King's
authority.” So say I. I will have Mr. Bearcroft [the
attorney, then prosecuting] show you gentlemen [of
the jury] how this Dialogue [of the Dean of Asaph
which was the basis of the charge] HAs disturbed the
King's government, excited disloyalty and disaffection
to his person, -and stirred up disorder within these
kingdoms.” " }
“It is easy" to distinguish where the public duty calls
for the violation of the private one; criminal intention
but not indecent levities, not even grave opinions uncon-
nected with conduct are to be exposed to the Magistrate.”" .
“Constructed by man to regulate human infirmities,
and not by God to guard the purity of angels, it [the
venerable law of England] leaves to us our thoughts,
our opinions and our conversations and PUNISHEs on LY
overt Acts, of contempt and disobedience to her
authority. Gentlemen, this is not the specious phrase of
an advocate for his client, it is not even my exposition
of the spirit of our constitution; but it is the phrase and
letter of the law itself.” " 4.
“What is it that has lately united all hearts and
voices in lamentation? What but these judicial execu-
tions, which we have a right to style murders, when
we see the axe falling, and the prison closing upon the
genuine expressions of the inoffensive heart; sometimes
for private letters to friends, unconnected with conduct or
intention; sometimes for momentary exclamations in
favor of royalty or some other denomination of govern-
ment different from that which is established.”.” e
These statements of general principle, made by
Erskine, and usually quite outside the necessary issues
of the cases in which they were uttered, I believe give
us warrant for asserting that he believed in unabridged
freedom of speech as a natural right, and that by

"Erskine's Speeches, Vol. 1, p. 205, St. Asaph's Case.
"Erskine's Speeches, Vol. 2, p. 343, Frost Case.
"Erskine's Speeches, Vol. 2, p. 346, Frost Case. *
* Erskine's Speeches, Vol. 2, p. 353, Frost Case. • *
sº - 5 l
unabridged freedom of speech he meant substantially
the same thing as that for which I have contended.
However, it must be admitted that, notwithstanding his
repeated clear enunciation of the general principle that
no guilt can be predicated except upon overt act and
criminal intent, it was not always consistently reaffirmed
by him in all particular cases. The prosecution of
aine's “Age of Reason” is an example. The exi-
É. of professional obligation adequately explains
is seeming inconsistency, and it is possible that his
religious and emotional nature also had something to
do with the seeming inability to make conclusive
deductions from his general principles to every specific
case that came within them.
The English governmental machinery certainly left
Erskine quite helpless, in his efforts to secure the
adoption of these general principles into the juridical
system. Only two methods were open. The one was
to secure a written constitution, such as it was once
supposed obtainable in America, inhibiting all legislative
abridgment of freedom of speech; and the second was
to secure a universal acceptance of his general principle
and its application to every conceivable case, such as is
essential to make a constitutional prohibition effective,
and which principle might occasionally be made effective
without a written constitution, if juries could be per-
mitted to rejudge the law for themselves.
Erskine lived long enough to see, in America, the
passage of the Alien and Sedition law, in spite of the
restraint of our American constitution, and this showed
him how useless are paper constitutions, if the people
do not possess an enlightened view of the pernicious
power which such constitutions are intended to destroy.
Perhaps he even foresaw this in 1793 when he made
his famous statement before the “Friends of Liberty of
the Press,” wherein he, seemingly at least, abandoned
his oft repeated demand for absolute certainty in the
criteria of guilt.” In this carefully prepared statement
* For this demand see, in the edition of 1810, as follows: Vol.
1, pp. 72-73-77-78-129-182-186-331-333-334-337; pp. 143-162-190-268;
6
he said this: “The extent of the genuine Liberty of
the press on general subjects, and the boundaries which
separate them from licentiousness, the English law has
wisely not attempted to define; they are indeed in their
nature undefinable; and it is the office of the jury alone
to ascertain them.” ” This statement was made in
support of his contention that juries should be author-
ized to decide the law as well as the facts.
I said Erskine seemingly abandoned this demand, but
it was only seemingly, for in this same paper he again
denounces the uncertainty of the laws for seditious libel,
and the infamous system of spy-societies which then,
as now, inflict their unctuous piousity on a dull, and
consequently patient, public. So then I conclude that
Thomas Erskine was a true believer in a real unabridged
liberty of utterance, where no man could be punished
so long as the mere verbal portrayal of his ideas is the
only factor involved.
In England, about a century ago, Thomas Erskine,
with such a record, was made Lord High Chancellor.
In America, at the present time, such statements would
put him only in the class “undesirable citizen” to be
specially criticised, and denounced as an anarchist
especially by many of those claiming to be “liberals”
or “radicals,” of the “respectable” type. Thus we have
another illustration that English royalty a century ago
was less afraid of real liberty than the American mass
of today; and herein we also see how the very essence
of tyranny thrives under the forms of democracy.
With us every stupid policeman, fanatical judge, or
moralist for revenue, can successfully abridge freedom
of speech by the lawless use of power, and the hysterical
mob of pretending lovers of liberty and democracy will
stand by and applaud, so low have we fallen since our
American Constitutions were written.

Vol. 3, pp. 338-356-439-497; Vol. 4, pp. 436–437. For my own litera-
ture on this subject see “Due Process of Law in Relation to
Statutory Uncertainty and Constructive Offenses,” and Cent. Law
Journ., Dec. 18, 1909. All these and other articles of mine with
appear soon in “Obscene Literature and Constitutional Law.”
* Erskine’s Speeches, Vol. 4, p. 439.
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