Part 31

The answer being in the negative, every hope of acquittal was annihilated for Balmerino. He gave up every further defence, and apologised with his usual blunt courtesy for giving their Lordships so much trouble: he said that his objections had been the result of advice given by Mr. Ross, his solicitor, who had laid the case before counsel. The question was then put by the Lord High Steward, standing up, uncovered, to the Lords, beginning with the youngest peer, Lord Herbert of Cherbury; "whether Arthur Lord Balmerino were guilty of high treason, or not guilty?" An unanimous reply was uttered by all those who were present; "guilty upon my honour." Lord Balmerino, who had retired while the question was put, was then brought back to the bar to hear the decision of the Lords. It was received with the intrepidity which had, all throughout the trial, characterised the soldier and the man. During the intervals of form, his natural playfulness and humour appeared, and the kindness of his disposition was manifested. A little boy being in the course of the trial near him, but not tall enough to see, he took him up, made room for the child, and placed him near himself. The axe inspired him with no associations of fear. He played upon it, while talking, with his fingers, and some one coming up to listen to what he was saying, he held it up like a fan between his face and that of the gentleman-gaoler, to the great amusement of all beholders. And this carelessness of the emblem of death was but a prelude to the calmness with which he met his fate. "All he troubled himself about," as a writer of the time observed, "was to end as he begun, and to let his sun set with as _full_ and _fair_ a light as it was possible."[364] During the time that the Lords were withdrawn, the Solicitor-General Murray, and brother of Murray of Broughton, addressed Balmerino, asking him "how he could give the Lords so much trouble," when he had been told by his solicitor that the plea could be of no use to him? The defection and perfidy of Murray of Broughton were now generally known; and the officious insolence of his inquiry was both revolting and indiscreet. Balmerino asked who this person was, and being told, exclaimed, "Oh! Mr. Murray, I am extremely glad to see you. I have been with several of your relations, the poor lady, your mother, was of great use to us at Perth."[365] An admirable and well-merited rebuke. He afterwards declared humorously that one of his reasons for not pleading guilty was, "that so many fine ladies might not be disappointed of their show."

Besides the interest which at such a moment the grave dignity of Kilmarnock, contrasted with the lofty indifference of Balmerino, might excite, there was some diversion among the Peers, owing to the eccentricity of several of their body. Of these, one, Lord Windsor, affectedly said when asked for his vote, "I am sorry I must say, _guilty upon my honour_." Another nobleman, Lord Stamford, refused to answer to the name of Henry, having been christened Harry. "What a great way of thinking," remarks Horace Walpole, "on such an occasion." Lord Foley withdrew, as being a well-wisher to poor Balmerino; Lord Stair on the plea of kindred--"uncle," as Horace Walpole sneeringly remarks, to his great-grandfather; and the Earl of Moray on account of his relationship to Balmerino, his mother, Jane Elphinstone, being sister to that nobleman.[366]

But the greatest source of amusement to all who were present was the celebrated Audrey, or to speak in more polite phrase, Ethelreda, Lady Townshend, the wife of Charles, third Viscount Townshend, and the mother of the celebrated wit, Charles Townshend. Lady Townshend was renowned for her epigrams, to which, perhaps, in this case, her being separated from her husband gave additional point. When she heard her husband vote, "_guilty upon my honour_," she remarked, "I always knew _my_ Lord was _guilty_, but I never knew that he would own it upon his _honour_." Her sarcastic humour was often exhibited at the expense of friend or foe. When some one related that Whitfield had recanted, "No, madam," she replied, "he has only _canted_." And when Lord Bath ventured to complain to this audacious leader of fashion, that he had a pain in his side, she cried out, "Oh! that cannot be, you have _no side_."

A touch of feminine feeling softened the harshness of the professed wit, always a dangerous, and scarcely ever a pleasing character in woman. As Lady Townshend gazed on the prisoners at the bar, and saw the elegant and melancholy aspect of Lord Kilmarnock, the heart that was not wholly seared by a worldly career is said to have been deeply and seriously touched by the graces of that incomparable person, and the mournful dignity of his manner. Perhaps, opposition to her husband, whose grandfather was Minister to George the First, and whose mother was a Walpole, gave the additional luxury of partisanship; that passion which lasted even some weeks after the scene was closed; and when the fashionable world were left to enjoy, undisturbed by any fears of any future rebellion, all the dangerous attractions of the dissolute Court.

The first day's proceedings being at an end, the prisoners were remanded to the Tower. On the following morning the proceedings were resumed, and the Lords having assembled in the Painted Chamber, took their places in Westminster Hall. The three lords were then again brought to the bar, again kneeled down, again were bidden to arise. The Attorney-General having prayed for judgment upon the prisoners, they were desired by the Lord High Steward to say "why judgment of death should not be passed against them according to law."

The reply of Lord Kilmarnock is described as having been a "very fine speech, delivered in a very fine voice;" his behaviour during the whole of the trial, a "most just mixture between dignity and submission." Such is the avowal of one who could not be supposed very favourable to the party; but whose better feelings were, for once, called into play during this remarkable scene.[367]

The address of Lord Kilmarnock, however beautiful and touching in expression, will not, however, satisfy those who look for consistency in the most solemn moments of this chequered state of trial; but in perusing the summary of it, let it be remembered that he was a father; the father of those who had already suffered deeply for his adherence to Charles Edward; that he was the husband of a lady who, whatever may have been their differences, was at that awful hour still fondly beloved; that he dreaded penury for his children, an apprehension which those who remembered the fate of the Jacobites of 1715 might well recall; a dread, aggravated by his rank; a dread, the bitterness of which is indescribable; the temptations it offers unspeakably great. These considerations, far stronger than the fear of death, actuated Lord Kilmarnock. He arose, and a deep silence was procured, whilst he offered no justification of his conduct, "which had been," he said, "of too heinous a nature to be vindicated, and which any endeavour to excuse would rather aggravate than diminish." He declared himself ready to submit to the sentence which he was conscious that he had deserved. "Covered with confusion and grief, I throw myself at his Majesty's feet."

He then appealed to the uniform honour of his life, previous to the insurrection, in evidence of his principles. "My sphere of action, indeed, was narrow; but as much as I could do in that sphere, it is well known, I have always exerted myself to the utmost in every part of his Majesty's service I had an opportunity to act in, from my first appearance in the world, to the time I was drawn into the crime, for which I now appeal before your Lordships."

He referred to his conduct during the civil contest; to his endeavours to avert needless injury to his opponents; to his care of the prisoners, a plea which he yet allowed to be no atonement for the "blood he had been accessary to the spilling of. Neither," he said, "do I plead it as such, as at all in defence of my crime."

"I have a son, my lords," he proceeded, "who has the honour to carry his Majesty's commission; whose behaviour, I believe, will sufficiently evince, that he has been educated in the firmest revolution principles, and brought up with the warmest attachment to his Majesty's interests, and the highest zeal for his most sacred person.

"It was my chief care to instruct him in these principles from his earliest youth, and to confirm him, as he grew up, in the justice and necessity of them to the good and welfare of the nation. And, I thank God, I have succeeded;--for his father's example did not shake his loyalty; the ties of nature yielded to those of duty; he adhered to the principles of his family, and nobly exposed his life at the battle of Culloden, in defence of his King and the liberties of Great Britain, in which I, his unfortunate father, was in arms to destroy."

Lord Kilmarnock next alluded to the services of his father in 1715, when his zeal and activity in the service of Government had caused his death: "I had then," he added, "the honour to serve under him."

Lord Kilmarnock proceeded to explain his own circumstances at the time of the insurrection: he declared that he was not one of those dangerous persons who could raise a number of men when they will, and command them on any enterprise they will: "my interests," he said, "lie on the south side of the Forth, in the well inhabited, and well affected counties of Kilmarnock and Falkirk, in the shires of Ayr and Stirling." His influence he declared to be very small.

This portion of his appeal was ill-advised; for it seems to have been the policy of Government to have selected as objects of royal mercy those who had most in their power, not the feeble and impoverished members of the Jacobite party. It has been shown what favour would have been manifested to the chief of the powerful clan Cameron, had he deigned to receive it: and the event proved, that not the decayed branches, but the vigorous shoots were spared. Lord Cromartie, who had taken a far more signal part in the insurrection than either Kilmarnock or Balmerino, and whose resources were considerable, was eventually pardoned, probably with the hope of conciliating a numerous clan.

After appealing to his surrender in extenuation of his sentence, and beseeching the intercession of the Lords with his Majesty, Lord Kilmarnock concluded--"It is by Britons only that I pray to be recommended to a British monarch. But if justice allow not of mercy, my lords, I will lay down my life with patience and resignation; my last breath shall be employed in the most fervent prayers for the preservation and prosperity of his Majesty, and to beg his forgiveness, and the forgiveness of my country." He concluded, amid the tears and commiseration of a great majority of those who heard his address.

The Earl of Cromartie was then called upon to speak in arrest of judgment. His defence is said to have been a masterly piece of eloquence. It ended with a pathetic appeal, which fell powerless on those who heard him.[368]

"But, after all, if my safety shall be found inconsistent with that of the public, and nothing but my blood be thought necessary to atone for my unhappy crimes; if the sacrifice of my life, my fortune, and family, are judged indispensable for stopping the loud demands of public justice; if, notwithstanding all the allegations that can be urged in my favour, the bitter cup is not to pass from me, not mine, but thy will, O God, be done."[369]

Balmerino then arose to answer the accustomed question. He produced a paper, which was read for him at the bar, by the clerk of the court. It was a plea which had been sent by the House of Lords that morning to the prisoners, and which, it was hoped, would save all of these unfortunate men. It contained an objection to the indictments, stating that the act for regulating the trials of rebels, and empowering his Majesty to remove such as are taken in arms from one county to another, where they might be tried by the common courts of peers, did not take effect till after the facts, implying treason, had been committed by the prisoners.[370] The two Earls had not made use of this plea, but Lord Balmerino availed himself of it, and demanded counsel on it. Upon the treatment which he then encountered, the following remark is made by one who viewed the scene, and whose commiseration for the Jacobites forms one of the few amiable traits of his character.[371]

"The High Steward," relates Horace Walpole, "almost in a passion, told him, that when he had been offered counsel, he did not accept it;--but do think on the ridicule of sending them the plea, and then denying them counsel on it."[372] A discussion among the Lords then took place; and the Duke of Newcastle, who, as the same writer truly remarks, "never lost an opportunity of being absurd," took it up as a ministerial point "in defence of his creature, the Chancellor." Lord Granville, however, moved, according to order, to return to the Chamber of Parliament, where the Duke of Bedford and many others spoke warmly for their "having counsel," and that privilege was granted. "I said _their_," observes Walpole, "because the plea would have saved them all, and affected nine rebels who had been hanged that very morning."

The Lords having returned to the Hall, and the prisoners being again called to the bar, Lord Balmerino was desired to choose his counsel. He named Mr. Forester, and Mr. Wilbraham, the latter being a very able lawyer in the House of Commons. Lord Hardwicke is said to have remarked privately, that Wilbraham, he was sure, "would as soon be hanged as plead such a cause." But he was mistaken: the conclusion of the trial was again deferred until the following day, Friday, August the first, when Mr. Wilbraham, accompanied by Mr. Forester, appeared in court as counsel for the prisoners. Previously, however, to the proceedings of the last day, Lord Balmerino was informed that his only hope was ill-founded; the plea was deemed invalid by the counsel; and the straw which had, with the kindest and most laudable intentions, been thrown on the stream to arrest his fate, was insufficient to save him. He bore this disappointment with that fortitude which has raised the character of his countrymen: when he appeared on that last day, in Westminster Hall, with his brother prisoners, he submitted, in the following brief and simple words, to his destiny. "As your lordships have been pleased to allow me counsel, I have advised with them; and my counsel tell me, there is nothing in that paper which I delivered in on Wednesday last, that will be of any use to me; so I will not give your lordships any more trouble."

When again asked, according to the usual form, as well as the other prisoners, whether he had anything more to say in arrest of judgment, Lord Balmerino replied; "No, my Lords, I only desire to be heard for a moment." Expressing his regret that he should have taken up so much of their lordships' time, he assured them that the plea had not been put in to gain time, but because he had believed there was something in the objection that would do him good. He afterwards added these few words, which one might have wished unsaid: "My lords, I acknowledge my crime, and I beg your lordships will intercede with his Majesty for me."

The Serjeant-at-Arms was then distinctly heard proclaiming silence; and the Lord High Steward delivered what Horace Walpole has termed, "his very long, and very poor speech, with only one or two good passages in it." On this, there may be, doubtless, contending opinions. Those who looked upon the prisoners, and saw men in the full vigour of life, condemned to death, for acting upon acknowledged, though misapplied principles, could scarcely listen to that protracted harangue with an unbiassed judgment. The tenour of the Lord High Steward's address had, throughout, one marked feature; it presented no hope of mercy; it left no apology nor plea upon which the unhappy prisoners might expect it. It amplified every view of their crime, and pointed out, in strong and able language, its effect upon every relation of society.

In conclusion, Lord Hardwicke said, "I will add no more: it has been his Majesty's justice to bring your lordships to a legal trial; and it has been his wisdom to show, that as a small part of his national forces was sufficient to subdue the rebel army in the field, so the ordinary course of his law is strong enough to bring even their chiefs to justice.

"What remains for me, is a very painful, though a very necessary part. It is to pronounce that sentence which the law has provided for crimes of this magnitude--a sentence full of horror! Such as the wisdom of our ancestors has ordained, as one guard about the sacred person of the king, and as a fence about this excellent constitution, to be a terror to evil doers, and a security to them that do well."

And then was heard, thrilling every tender heart with horror, the sentence of hanging, first to be put into execution, and followed by decapitation. The horrible particularities were added--"_of being hanged by the neck,--but not till you are dead--for you must be cut down alive;_"--the rest of this sentence, since it has long ago been suffered to fall into oblivion, may, for the sake of our English feelings, rest there. By those to whom it was addressed, it was heard in the full conviction that it might be carried out on them: since that very morning, nine prisoners of gentle birth had suffered the extreme penalties of that barbarous law.[373]

Of the calm manner in which his doom was heard by one of the state prisoners, Horace Walpole has left the following striking anecdote:

"Old Balmerino keeps up his spirits to the same pitch of gaiety: in the cell at Westminster, he showed Lord Kilmarnock how he must lay his head; bid him not wince, lest the strokes should cut his head or his shoulders; and advised him to bite his lips. As they were to return, he begged they might have another bottle together, as they should never meet any more till--he pointed to his neck. At getting into his coach, he said to the gaoler, 'Take care, or you will break my shins with this d----d axe.'"[374]

The English populace could not forbear delighting in the composure of Balmerino, who, on returning from Westminster Hall after his sentence, could stop the coach in which he was about to be conducted to the Tower to buy gooseberries; or, as he expressed it in his national phrase, _honey-blobs_.[375]

That night, not contented with saying publicly at his levee, that Lord Kilmarnock had proposed murdering the English prisoners, the Duke of Cumberland proposed giving his mistress a ball; but the notion was abandoned, lest it should have been regarded as an insult to the prisoners, and _not_ because a particle of highminded regret for the sufferers could ever enter that hard and depraved heart. Too well did the citizens of London understand the Duke of Cumberland's merits, when, it being proposed to present him with the freedom of some company, one of the aldermen cried aloud, "Then let it be of the Butchers'!"[376]

The commission was dissolved in the usual forms: "all manner of persons here present were desired to depart in the fear of God, and of our sovereign Lord the King." The white staff of office was broken by the Lord High Steward; the Lords adjourned to the Chamber of Parliament; the prisoners returned to the Tower.[377]

Three weeks elapsed, after the trial, before the execution of Lord Kilmarnock and Lord Balmerino. During that interval, hope sometimes visited the prisoners in their cells, great intercession being made for them by persons of the highest rank. But it was in vain, for the counsels of the Duke of Cumberland influenced the heart of his royal father, who it is generally believed, would otherwise have been disposed to compassion. During this interval, the sorrows of the prisoners were aggravated by frequent rumours that their beloved Prince was taken; but he was safe among his Highlanders, and defied the power even of an armed force to surprise him in his singular and various retreats.

The Earl of Cromartie was the only one of the three prisoners to whom royal mercy was extended. This nobleman had been considered, before the Insurrection, as the only branch of the Mackenzies who could be relied upon. He had been backward in joining the Jacobite army, and had never shared the confidence of Charles Edward. He had been disgusted with the preference shown to Murray and to Sullivan, to the prejudice of more powerful adherents of the cause: and it was reported, had rather surrendered himself to the Earl of Sutherland's followers, than resisted when they apprehended him.[378]

Amiable in private life, affable in manner, and exempt from the pride of a Highland chieftain, this nobleman had been beloved by his neighbours of inferior rank; to the poor he had been a kind benefactor. The domestic relations of life he had fulfilled irreproachably. Every heart bled for him; and the case of his son, Lord Macleod, who had espoused the same cause, excited universal commiseration.

On the Sunday following the trial, Lady Cromartie presented her petition to the King: he gave her no hopes; and the unhappy woman fainted when he left her.

It is pleasing to rest upon one action of clemency, before returning to the horrors of capital punishment. To the intercession of Frederick Prince of Wales, Lord Cromartie eventually owed his life; that intercession is believed to have been procured by the merits and the attractions of Lady Cromartie, who was indefatigable in her exertions.

This Lady, the daughter of Sir William Gordon of Dalfolly, is said to have possessed every quality that could render a husband happy. Beautiful and intellectual, she manifested a degree of spirit and perseverance when called upon to act in behalf of her husband and children, that raised her character to that of a heroine. She was then the mother of nine children, and about to give birth to a tenth. During the period of suspense, her conduct presented that just medium between stoicism and excess of feeling, which so few persons in grief can command.[379]

At last, a reprieve for Lord Cromartie arrived on the eleventh of August; it was not, however, followed by a release, nor even by a free pardon. During two years, Lord Cromartie was detained a prisoner in the Tower, there, being condemned to witness the departure of his generous friends, Kilmarnock and Balmerino, to the scaffold. On February the eighteenth, 1748, he was permitted to leave his prison, and to lodge in the house of a messenger. In the following August he went into Devonshire, where he was desired to remain. A pardon passed the Great Seal for his Lordship on the twentieth of October, 1749, with a condition that he should remain in any place directed by the King. He died in Poland-street in London, on the twenty-eighth of September, 1766.[380]