In the last days of his existence the Earl, indeed, acknowledged that the state of his affairs was, in part, the reason of his defection from Government. He attributed it, (though, it must be stated, under the pressing arguments of a minister of religion who considered what he termed "rebellion" as the most heinous sin,) to the great and pressing difficulties into which he had brought himself, by extravagance and dissipation: and declared, according to the account of his spiritual guide, that the "exigency of his affairs was very pressing at the time of the rebellion; and that, besides the general hope he had of mending his fortune by the success of it, he was also tempted by another prospect, of retrieving his circumstances if he followed the Pretender's standard."[328]

Until the commencement of the insurrection of 1745, Lord Kilmarnock enjoyed the possession of Dean Castle, a very ancient edifice, situated about half a mile north east of the town of Kilmarnock, in Ayrshire. "It is," says Grose in his Antiquities of Scotland, "at a small distance from the main road leading from Kilmarnock to Stewarton, and consists of a large vaulted square tower, which seems to have been built about the beginning of the fifteenth century: this is surrounded by a court and other buildings more modern."[329] Such is the description of Dean Castle before the year 1735; when, to add to Lord Kilmarnock's other necessities, it was partially destroyed by fire, leaving only a ruin which he was too much impoverished even to restore to its former habitable state. In the "great square tower," referred to by Grose, and of which a view is preserved in his work on Scotland, the Boyd family had dwelt in the days of their greatness, when one of their race was created Earl of Arran. In that tower had the Earl imprisoned his royal wife, the Lady Margaret, sister of James the Third, who was divorced from him, pleading, as some say, a prior contract with the Lord Hamilton, to whom she was afterwards united, taking to him the Isle of Arran as her dower.

It does not appear that the Earl of Kilmarnock was originally in the confidence of the Jacobite party: and their designs were not only matured, but far in full operation before he took an open or active part in the Stuart cause. It happened, however, that when Charles Edward resided at Holyrood, the Countess of Kilmarnock was living in Edinburgh. Her beauty, and the gaiety of her manners, attracted the admiration of the young Prince, who bestowed no small portion of attention on the fascinating daughter of one of his father's adherents. Lady Kilmarnock was as much attached to pleasure as the young and beautiful usually are: she delighted in public diversions, and led the way to all parties of amusement. Her ambition, no less than her early prepossessions conspired, it is said, to make her a Jacobite; and she hoped, by the favour of Charles Edward, to obtain the restoration of her father's title. Her entreaties to the Earl of Kilmarnock to join the standard of the Prince were stimulated, therefore, by a double motive; and, indeed, to a generous and romantic mind, there required neither the inducements of ambition, nor of gratified vanity, to espouse that part which seemed most natural to the Scotch. After the battle of Preston Pans, Lady Kilmarnock's persuasions took effect: her husband presented himself to the young Chevalier, who received him with every mark of esteem and distinction, declared him a member of the privy council, raised him to the rank of a general, and appointed him colonel of his guards.[330]

Another occurrence is, however, stated to have had a considerable influence in forming the Earl's decision.

During the course of the conflict, he met, at Linlithgow, that incomparable man, and excellent officer, Colonel Gardiner. This individual, whose character forms so fine a relief to the party-spirited and debased condition of the British army in the time of George the Second, was a native of Linlithgowshire, having been born at Carriden, in the year of the Revolution, 1688. His life commencing in that important era, had been one of events. He had first entered the Dutch service; then had served in Marlborough's army at Ramilies. Until this incident of his life, the young soldier, then only nineteen, had run a course of dissolute pleasure, and had obtained, from the frankness and gaiety of his disposition, the name of the happy rake. Being in the Forlorn hope, he was wounded, and left in a state hovering between life and death, on the field, and in state of partial insensibility, from which he was aroused at times to perfect consciousness.

The ball which had struck Gardiner, had entered his mouth; and without breaking a single tooth, or touching the forepart of his tongue, had passed through his neck, coming out above an inch and a half on the left side of the vertebrae. He was abandoned by Marlborough's troops, who, according to their custom, left the wounded to their fate, while they pursued their advantages against the French.

In this state, the first serious emotions of gratitude, the first convictions of a peculiar Providence suggested themselves to the mind of the young officer: and although they did not, for some years, produce an absolute amendment of life, they laid the foundation of his future conversion, and of that exemplary piety and purity which extorted admiration even in a dissolute age. After being present at every battle that Marlborough had fought in Flanders, Colonel Gardiner had signalized his courage in the Insurrection of 1715; and in 1745 he was again ordered to the north to meet the Jacobite forces near Edinburgh.[331]

It was during this, his last campaign, when broken by ill health and premature age, for this brave and good man despaired of the restoration of peace to his country, that he supped in company with Lord Kilmarnock, at Linlithgow. Colonel Gardiner's prognostications had long been most gloomy. "I have heard him say," declared Dr. Doddridge, "many years before the Scottish Insurrection, that a few thousands might have a fair chance for marching from Edinburgh to London, uncontrolled, and throw the whole kingdom into an astonishment." This opinion was derived from his knowledge of the defenceless state of the country, and the general prevailing disaffection. And the pious, but somewhat distrustful views of Gardiner led him to assign yet more solemn reasons for his anticipations of evil. "For my own part, though I fear nothing for myself, my apprehensions for the public are very gloomy, considering the deplorable prevalency of almost all kinds of wickedness among us; the natural consequences of the contempt of the Gospel. I am daily offering up my prayers to God for this sinful land of ours, over which His judgments seem to be gathering; and my strength is sometimes so exhausted with those strong cries and tears, which I pour out before God upon this occasion, that I am hardly able to stand when I arise from my knees."[332]

Imbued with these convictions, Colonel Gardiner, when he was retreating at Linlithgow with the troops under his command, spoke unguardedly to Lord Kilmarnock of the prospects of the English army, and thus confirmed the wavering inclination of that ill-fated nobleman to follow Charles Edward.[333] The decisive step was not, it appears, taken until after the battle of Preston Pans, in which Colonel Gardiner, who had a mournful presentiment of the event of that engagement, fell, after a deportment truly worthy of the British soldier, and of the Christian. This brave officer, after having received two wounds, fought on, his feeble frame animated by the almost supernatural force of strong determination. As he headed a party of foot who had lost their leader, and cried out, "Fire on, my lads, fear nothing;" his right-arm was cut down by a Highlander who advanced with a scythe, fastened to a pole. He was dragged from his horse; and the work of butchery was completed by another Highlander, who struck him on the head with a broadsword: Gardiner had only power to say to his servant, "Take care of yourself." The faithful creature hastened to an adjoining mill for a cart to convey his master to a place of safety. It was not until two hours had elapsed, that he was able to return. The mangled body, all stripped and plundered, was, even then, still breathing; and the agony of that gallant spirit was protracted until the next day, when he expired in the house of the minister of Tranent.

This digression, introducing as it does, one of the real heroes of this mournful period, may be pardoned.

According to the evidence on his trial, Lord Kilmarnock first joined the standard of Charles Edward on the "banks of the river which divides England from Scotland;"[334] but Maxwell of Kirkconnel mentions that the Earl marched from Edinburgh on the thirty-first of October, 1745, at the head of a little squadron of horse grenadiers, with whom were some Perthshire gentlemen, who, in the absence of their own commander, were placed under the conduct of Lord Kilmarnock.[335] After this decisive step, Lord Kilmarnock continued to follow Charles during the whole of that ill-fated campaign, which ended in the battle of Culloden. During the various events of that disastrous undertaking, his character, like that of many other commanders in the Chevalier's army, suffered from imputations of cruelty. That this vice was not accordant with his general disposition of mind, the minister who attended him on his death-bed sufficiently attests. "For myself," declares Mr. Foster, "I must do this unhappy criminal the justice to own, that he never appeared, during the course of my attendance upon him, to be of any other than a soft, benevolent disposition. His behaviour was always mild and temperate. I could discern no resentment, no disturbance or agitation in him."[336] So gentle a character is not the growth of a day; and if ever Lord Kilmarnock were betrayed into actions of violence, it must have been under circumstances of a peculiar nature.

Among other charges which were specified against him, was a participation in the blowing up of the church of St. Ninian's, in the retreat from Stirling. But when, in the retirement of his prison chamber, the unfortunate nobleman reviewed his conduct, and confessed the errors of his life, he fully and satisfactorily cleared himself from the heinous imputation implied in this work of destruction. When the army of Charles were retiring from Stirling he was confined to his bed ill of a fever. The first intimation that he had of the blowing up of the tower of St. Ninian's was the noise, of which he never could obtain a clear account. By the insurgents it was represented as accidental: "this can I certainly say, as to myself, that I had no knowledge before hand, nor any concurrence in a designed act of cruelty." Such was Lord Kilmarnock's declaration to Mr. Foster.

Another instance of barbarity also laid to the charge of the Earl was, his alleged treatment of certain prisoners of war who were intrusted to his care in the church of Inverness. He was accused of stripping these unfortunate persons of their clothes. Upon this point he admitted that an order to deprive the prisoners of their garments for the use of the Highlanders was issued by Charles Edward: that the warrant for executing this order was sent to him. He did not, as he declared, enter the church in person, but committed the office of execution to an inferior officer. The prisoners, as might be expected, refused to submit to this indignity; upon which a second order was issued, and their clothes were taken from them. The well-timed remonstrance of Boyer, Marquis D'Eguilles, who had been sent by the court of France in the character of Ambassador to Charles Edward, arrested, however, the act of cruelty, which not even extreme necessity can excuse. This nobleman had arrived some time previously at Montrose, bringing in the ship in which he sailed, arms and a small sum of money,[337] and his influence, which was exerted in behalf of the captives, was happily considerable. He represented to the Earl of Kilmarnock, that the rules of war did not authorise the outrage which was contemplated. Lord Kilmarnock, convinced by his remarks, repaired to Charles Edward, leaving heaps of the clothes lying in the streets of Inverness, with sentinels standing to guard them. By the arguments which he addressed to the Prince, these garments were restored to their unfortunate owners; and a great stain on the memory both of Charles and of his adherent was thus partially effaced.

Of such a nature were those imputations which were charged upon Lord Kilmarnock; but they appear to have met with only a transient credence; whilst a general impression of his gentleness, and a prevailing regret for his fate endured as long as the memory of the dire contest, and of its tragical termination, dwelt in the recollection of those who witnessed those mournful times.

After the battle of Culloden, the prisoners were immediately set free. The Duke of Cumberland, as he entered Inverness, taking his road amid the carcasses of the dead strewed in the way, called for the keys of the prisons, and with his own hands released the captives there, and, clapping them on the shoulders as they came down stairs, exclaimed, "brother soldiers, you are free."[338] Unfortunately his compassion was of a party nature, and was only aroused for his own adherents.

At Culloden, fatal to so many brave men, Lord Kilmarnock was spared only to taste much more deeply of the pangs of death than if he had met it in battle. His fate had, indeed, been anticipated by the superstitious; and it was considered a rash instance of hardihood in the unfortunate nobleman to resist an omen which, about a year before the rebellion had broken out, is said to have happened in his house.

One day, as the maid who attended usually upon Lady Kilmarnock was inspecting some linen in an upper room of Dean Castle, the door of the apartment suddenly opened of its own accord, and the view of a bloody head, resembling that of Lord Kilmarnock, was presented to the affrighted woman. As she gazed in horror, the head rolled near her. She endeavoured in vain to repel it with her foot. She became powerless, but she was still able to scream; her shrieks brought Lord Kilmarnock and his Countess to the chamber. The apparition had vanished; but she related succinctly the story "which, at that time," says the historian who repeats it,[339] "Lord Kilmarnock too much ridiculed, though it could have been wished that he had been forewarned by the omen. Such was the superstition of the times, in which ignorance and credulity found such ready supporters."

At Culloden, this ill-fated nobleman occupied a post not far from the Prince, in the rear of whom was a line of reserve, consisting of three columns, the first of which, on the left, was commanded by Lord Kilmarnock; the centre column by Lord Lewis Gordon and Glenbucket; and the right by the justly-celebrated Roy Stewart. In the opposite ranks, an ensign in the royal regiment, was his son, Lord Boyd. During the confusion of the fight, when half-blinded by the smoke, the unhappy Lord Kilmarnock, as if fated to fulfil the omen, mistook a party of English Dragoons for FitzJames's Horse, and was accordingly taken prisoner. He was led along the lines of the British infantry. The vaunted beauty of his countenance, and the matchless graces of which so much has been said, were now obliterated by the disorder of his person, and his humiliating position. His hat had been lost in the conflict, and his long hair fell about his face. The soldiers as he was led along stood in mute compassion at this sight. Among those who thus looked upon this unfortunate man was his son, Lord Boyd, who was constrained to witness, without attempting to alleviate, the distress of that moment. When the Earl passed the place where his son stood, the youth, unable to bear that his father should be thus exposed bareheaded to the storm which played upon the scene of carnage, stepped out of the ranks and taking his own hat from his head, placed it on that of his father. It was the work of an instant, and not a syllable escaped the lips of the agitated young man.[340]

Lord Kilmarnock was carried from the moor, which already, to use the words of an eyewitness among the Government troops, "was covered with blood; the men, what with killing the enemy, dabbling their feet in the blood, and splashing it about one another, looked like so many butchers."[341] Never, did even their enemies declare, was a field of battle bestrewn with a finer, perhaps with a nobler race. "Every body allowed," writes one of Cumberland's officers, "that men of a larger size, larger limbs, and better proportioned, could not be found." The flower of their unhappy country; hundreds of these had not yet been blessed with the repose of death, but were left to languish in agony until the next day, when they were butchered by the orders of Cumberland. One of them, John Alexander Fraser, in the Master of Lovat's regiment, was rescued by Lord Boyd from destruction. A soldier had struck him with the butt of his musket, intending, according to the orders given, to beat out his brains. The poor wretch, his nose and cheek-bone broken, and one of his eyes pierced, still breathed when this young nobleman passed him. He observed the poor creature, and ordered his servants to carry him to a neighbouring kiln, where, in time, his wounds were cured. "He lived," observes Mr. Chambers, "many years afterwards, a dismal memorial of the cruelties of Culloden."[342]

According to one account, Lord Kilmarnock owed his escape from the field of battle with his life to the brave and generous Lord Ancrum, who delivered him to the Duke of Cumberland; and the same narrative adds, that the Duke issued orders that no one should mention the Earl's imprisonment to his son, but considerately imparted the intelligence to the young man himself. It is only fair to mention this redeeming trait in a man who had so many awful, and almost inexpiable sins to answer for at the last day, when not our professions of kindness, but our acts of mercy or of wrong will be placed before a solemn and final account.

After his surrender at Culloden, the Earl of Kilmarnock was conveyed to London. That metropolis, in some of its most attractive features, was well known to him: he had frequently resided there for several months during the year, and had associated with the friends of government who were near the court. He was now to view it under a very different aspect; and during the period which elapsed between his surrender and his trial, he had ample time to weigh the respective value of that society which had formerly so much delighted him, and in which, it is said he "had affected to talk freely of religion;" and of those great truths which were now his only source of support.

Whatever may have been his early errors, the remaining days of Lord Kilmarnock were characterized by gentleness to those who were placed in authority over him; forbearance to those who slandered him, and submission to God. Unable to conquer a natural intense love of life, he assumed no pretended intrepidity:[343] yet manifested a still greater concern for his character, than for his fate. Society in general, as well as the annalists of the times, mourned for him, and with him; and many who beheld his doom, would have sacrificed much of their own personal safety to avert the close of that tragic scene. But these were not times when the generous might venture to interfere with security.[344]

Two noblemen, differing greatly in character from Lord Kilmarnock, shared his imprisonment: Arthur, sixth Earl of Balmerinoch, or, as it is usually spelled Balmerino, (pronounced Balmerino), and George, Earl of Cromartie.

Of these individuals, Lord Balmerino, although an uncultured soldier, has excited by far the greatest interest. He was descended, like most of his associates from an ancient family. It was of German origin,[345] first known in Scotland in the reign of Robert Bruce, to whose sister, a German Knight, sirnamed Elphingston, or Elphinstone, was married. Such was the esteem in which Robert Bruce held his foreign brother-in-law, that he gave him lands in Midlothian, which still bear the name of Elphinstone.[346] Hence was he called Elphinstone of that Ilk—a mode of expression employed in Scotland to prevent the repetition of the same name. In process of time certain estates which a descendant of the German Knight acquired at Arthbeg, in Stirlingshire, were also endowed with that surname; and, during several centuries, the martial and hardy race to whom those lands belonged continued in the same sphere, that of private gentlemen, chiefs of the House of Elphinstone. They were remarkable, in successive generations, for that bold and manly character which eventually distinguished their ill-fated descendant, Arthur Balmerino, and which, in time, extorted applause from the most prejudiced politicians of the opposite party. Alexander Elphinstone, in the reign of David the Second, might have emulated the supposed deeds of Guy Earl of Warwick; he rivalled him in gigantic figure, in immense strength, and knightly prowess. His disposition was not only martial, but chivalric; for, conscious of extraordinary power, "he was more able," says a writer of the last century, "to overlook an affront, than men less capable of resenting it." His son, inferior in bodily strength, equalled him in military exploits, which distinguished indeed a succession of the Elphinstones of that Ilk.[347] At Flodden, John Elphinstone, who was created a Lord of Parliament by James the Fourth, was killed by the side of his royal master, and being not unlike to that monarch in face and figure, his body was carried to Berwick by the English, who mistook it for that of the King.[348] In the reign of James the Sixth, James, the second son of the third Lord Elphinstone, was created a Baron by the name and title of Lord Balmerino. He rose to high honours in the State; but the first disgrace that befell the family occurred in this reign. This was the marriage of John, the second Lord Balmerino, to Jane Ker, sister of the infamous Ker, Earl of Somerset, and favourite of James the Sixth, who, for his sake, denounced a curse on his posterity, which seems, says the writer before quoted, "to have followed them and the nation ever since."

Like most of the noble families in Scotland, the house of Balmerino became impoverished during the civil wars; and when the father of Arthur Elphinstone succeeded to his title, he found his estates wofully diminished. He was, however, one of those men who were capable, by ability and prudence, of redeeming the fortunes of his family. Circumstances were, indeed, adverse to the prosperity of any whose loyalty to the Stuarts was suspected. Lord Balmerino was prudent, but he was sincere. He was "a man of excellent parts, improved by reading, being, perhaps, one of the very best lawyers in the kingdom, and very expert in the Scottish constitution; he reasoned much and pertinently in Parliament, and testifying, on all occasions, an unshaken loyalty to his Prince, and zealous affection to his country, he gained the esteem and love of all good men."

Such was the father, of whom this noble character was drawn, to whom Arthur, Lord Balmerino, owed his being. Such was the man whom it would have been the wiser policy of the British Ministry to have conciliated, on the accession of George the First, but whose son they drove into an act of imprudence by their distrust and injustice.

The first wife of John, fourth Lord Balmerino, was the daughter of Hugh, Earl of Eglintoun, and, consequently, she was connected with some of the most strenuous supporters of the Stuart cause in the kingdom of Scotland. By her he had two sons, Hugh, who was killed in 1708, at the siege of Lisle, and James, who was educated to the profession of the law. Upon the death of this lady, Lord Balmerino married Anne, daughter of Ross, the last Archbishop of St. Andrews, and by her had two sons: Arthur, who became eventually Lord Balmerino, and Alexander, who died in 1733, unmarried; and a daughter, Anne, who died also unmarried. The subject of this memoir may, therefore, be deemed the last of the House of Balmerino.[349]

Arthur Elphinstone was born in the year 1688. He had, until late in life, no expectation of succeeding to the title of his father after the death of Hugh, there being still an elder brother, James. The characteristics of all this branch of the Elphinstone family appear almost invariably to have been those of honour and justice, and James resembled his father in the integrity of his principles. The following character is drawn of him by a contemporary writer: "He was rather a solid pleader than a refined orator; but he understood the law so well, and preserved the chastity of his character so tenderly, by avoiding being concerned in any scandalous actions, that he was listened to with great attention by the bench, at a time when it was filled by the most eminent lawyers that ever appeared in Scotland."

The abilities of this able and conscientious man soon raised him to the bench, where he discharged his duties with that high and nice sense of integrity which can only be described by the word honour. He never mixed party-spirit with his judgments: he lent himself to no ministerial purposes. The dignity of the judge was preserved in his manly and courageous character: and such was his application to business, that his court was thronged with practitioners when those of other judges were nearly deserted.

Arthur, his younger brother, possessed not his application, but displayed much, nevertheless, of the natural ability of his family. "He was not much acquainted with books; and though he was rich in repartee, yet he never affected to reason." Such is the remark of a contemporary writer. Yet who might not envy the clear, undisturbed intellect which showed him, in a moment of peculiar temptation, the value of plain dealing, and the inestimable price of a good conscience?

Some members of a family seem fated to suffer for the others. Arthur Elphinstone was educated in the principles which brought him to the scaffold: they were those of his father and brother, who were both fortunate enough to preserve them in their own breasts, and yet not to encounter trouble on that account. And, during the reign of Queen Anne the family appear to have been deemed so well affected, as to procure them promotion, not only in civil but military service. When very young, Arthur Elphinstone obtained the command of a company of foot in Lord Shannon's regiment, on the accession of George the First. His real opinions were, however, manifested by his resignation of his commission; and by his joining the standard of Lord Mar, under whom he commanded a company, and served in the battle of Sherriff Muir. By throwing up his commission, he escaped being punished as a deserter, and was allowed to retire to the Continent. According to some accounts, he went first to Denmark; by others it is said, that he entered at once into the French service. He remained, at all events, twenty years in exile from his family; but in 1733, an event occurred, which greatly increased the natural desire which his father, declining in strength, had long cherished of again beholding his son. Alexander Elphinstone, the younger brother of Arthur, died at Leith, two years before the Insurrection broke out. This young man had had the misfortune in 1730, to fight a duel, shortly after which his adversary, Lieutenant Swift, had died of his wounds. The combat took place on the Links of Leith; the affair was notorious, and Alexander had been threatened with a prosecution, which was not, however, put into execution.

This painful circumstance, coupled with Alexander Elphinstone's death, may have naturally added to the wish which Lord Balmerino entertained, to rescue his exiled son from the sentence of outlawry under which he stood, and to restore him again to his home. Probably the desire of perpetuating honours which had been gained by legitimate exertions, may have been contemplated by the aged nobleman when he revolved in his mind how he could compass the safe return of his younger, and surviving son, to Scotland. James, the heir to the title, great as was the lustre which his abilities and integrity shed upon it, was not likely to perpetuate more honours, having no children by his wife Elizabeth Carnegie, daughter of David, fourth Earl of Northesk.

It is one of the innumerable instances of human short-sightedness, that the very recall of Arthur Elphinstone to Scotland was the cause of the extinction of family honours, and of that line in which they rested. According to some accounts, he remained abroad until the general Act of Indemnity, from which he was not excepted, took effect:[350] but by others it is stated, that his father, having made a strong application to Government, obtained a free pardon for his son. If such were the case, there seems a degree of ingratitude in again joining the enemies of Government, which one can scarcely reconcile with the generous character of this brave man.

He was in Switzerland when he received a summons to return to his native country. His conduct upon the arrival of this intelligence was honest and candid towards him, to whom, according to his notions, he owed allegiance. He wrote to the Chevalier (St. George) and laid open the circumstances of the case before him; stating that he should not accept the proffered pardon without his permission. James answered this explanation with his own hand; and not only gave Arthur Elphinstone permission to return to Scotland, but informed him that he had ordered his banker at Paris to pay his travelling expenses. Thus authorized, Arthur returned home, welcomed by his aged father with a satisfaction which happily was not destined to be alloyed by any adverse circumstances during the lifetime of the venerable nobleman.

Thus was this ill-fated man restored to that land which probably, although long severed from its glens and mountains, he had not ceased to love. He was now of middle age, being in his forty-fifth year; but his disposition, in spite of his long residence among foreigners, was still thoroughly Scotch. He was as undaunted by danger as any of his valiant ancestors had been, consequently he had no need to have recourse to guile; in short, falsehood would have been impossible to that frank nature. He was blunt in speech, but endowed with the kindest heart that ever throbbed in the dungeons of that grim fortress in which his manly career was closed. He had not, however, the prudence which is characteristic of his countrymen: and which, once well understood, is as distinct from selfishness and craft as their martial vehemence has generally been from cruelty. A service in foreign campaigns had not lessened his ideas of honour; which were perhaps more truly cherished among military men on the Continent, than at that period in England. Few British troops, for example, ever proved themselves more worthy of the name of soldiers than the Hessians who served in Scotland in 1745. To the fine and soldierly attributes of Lord Balmerino, to an intrepidity almost amounting to indifference, to a warm and generous heart, were united that ready and careless humour which accord so well with the loftier qualities of the mind, and certainly rather enhance, than detract from the charm of graver attributes of character.

In appearance, Lord Balmerino was strongly contrasted with the fellow-sufferer with whom his name is indelibly associated. "His person," writes a contemporary, "was very plain, his shape clumsy, but his make strong: and he had no marks of the polite gentleman about him. He was illiterate in respect of his birth; but rather from a total want of application to letters, than want of ability."[351] His manners are said to have been natural, if not courtly; his countenance only inferior in its ungainliness to that of Lovat, but, expressing, we may suppose, a very different temper of mind, harsh as were its features, it captivated, as well as that of the handsome Kilmarnock, female regard.[352]

According to some statements, Lord Balmerino married in 1711, before the first Insurrection;[353] but no distinct allusion to a connection of so early a period is to be found in the authenticated narratives of his life. It was not, it seems evident, until after his return from Switzerland, that he married Margaret, daughter of Captain Chalmers—"the pretty Peggy," who was at once his solace and his sorrow when in the Tower of London. In 1736, the father, whom he had returned to cheer in his decline, died at his house in Leith, and was buried at the family seat at Restalrig in Leith. His son James, succeeded to the title.[354]

When the intelligence arrived, that Charles Edward had landed in Scotland, Arthur Elphinstone hastened to the standard of the Prince. On the thirty-first of October, 1745, he marched from Edinburgh, on the expedition to England, having the command of a troop of horse, not complete, in number about forty.[355] His military talents were well known, for he had distinguished himself in several campaigns in Flanders.[356] But, as he took into the field only his menial servants, no very important posts were entrusted to him; and his career appears not to have been signalized by any remarkable military exploits. In short, it may be truly said of him as of Dr. Donne by Izaak Walton, that "nothing in his life became him like the leaving it."

After joining the insurgent army, Lord Balmerino engaged in all the various movements of that enterprise. After the siege of Carlisle he entered that city at the head of his troop, with pipes playing, and colours flying, having been at twelve miles' distance when the town was taken; he then proceeded in the fatal expedition to Derby, and returned a second time to Carlisle, preceding in his march the main body of the army towards Scotland. He was present at the battle of Falkirk, but did not engage in it: some of the cavalry having been kept as a corps de reserve in that engagement. His participation in that day's victory was, however, afterwards imputed to him as an act of rebellion, although he was merely drawn up in a field near the field of battle, in company with Lord Kilmarnock and Lord Pitsligo. The body which he commanded, went by the name of Arthur Elphinstone's Life Guards.[357]

A few weeks before the battle of Culloden, the elder brother of Arthur Elphinstone, James Lord Balmerino, died, leaving the title which he had enjoyed for so short a period, to the brother, who was then engaged in so perilous a course. This accession of honour brought with it little increase of fortune, but rather the responsibility of succeeding to encumbered estates. Of these most had, indeed, passed into other families. To the first Lord Balmerino charters of numerous lands and baronies had been given; Barntoun, Barrie, Balumby, Innerpeffer, Balgregie, Balmerino, Dingwall, &c., were among his possessions. In 1605, the barony of Restalrig, in South Leith, was sold to Lord Balmerino by the noted and profligate Robert Logan, Baron of Restalrig, to whose family that now valuable property, including the grounds lying near the river, had belonged, until the days of the Queen Regent, Mary. This estate, on which Lord Balmerino's father resided, appears to have been almost the only vestige of the former opulence of this branch of the Elphinstone family.[358] His embarrassed circumstances are deemed by some writers to have had a considerable share in deciding Lord Balmerino to join in a contest in which he had so little to lose; but it appeared, in the hour of trial, that his principles of allegiance to the Stuarts had been unaltered since the days of his youth, and that they were alone sufficient to account for the part which he adopted. At the battle of Culloden Lord Balmerino was made prisoner by the Grants, to whom, as one of the witnesses on his trial affirmed, he surrendered himself. He was conveyed to Castle Grant, and from thence to London, to the same dreary fortress in which Lord Kilmarnock was likewise immured. The fate of these two unfortunate men, hitherto but little dependant on each other, was henceforth associated, until the existence of both was closed on the scaffold.

George, the third Earl of Cromartie, was the only one of their fellow-prisoners who was arraigned and tried with Kilmarnock and Balmerino. He had taken even a more decided part in the insurrection than Balmerino, having raised four hundred of his clan, who were with him in the battle of Falkirk. His son, the young Lord Macleod, was also in the Jacobite army, and both father and son were surprised at Dunrobin, by a party of the Earl of Sutherland's militia, on the fifteenth of April, and taken prisoners. Lord Cromartie had, as well as Lords Kilmarnock and Balmerino, strong ties to life, strong claims upon his reason to have withheld him from a hazardous participation in a cause of peril. He had been married more than twenty years to Isabel, daughter of Sir William Gordon, and had by her a numerous family. For this nobleman, a powerful interest was afterwards successfully exerted.

These three noblemen were brought to London early in June. They were shortly afterwards followed by about eight hundred companions in misfortune. Of these, who arrived in the Thames on the twenty-first of June, about two hundred were left at Tilbury Fort; while six hundred were deposited in the various prisons of the metropolis. From henceforth scenes of distress, and even of horror, were daily presented to the prisoners. The Marquis of Tullibardine expired soon after his arrival at the Tower; Lord Macleod, with happier fate, rejoined his father; Mr. Murray of Broughton, who was treated with a distinction, at that time, unexplicable, was also lodged in the same fortress. Those who were led to expect the severest measures, might envy the calm departure of the good old Marquis of Tullibardine; but all hearts bled when the gallant Colonel Townley, a Roman Catholic gentleman of distinction, was dragged on a sledge, along with other prisoners, to Kennington, his arms pinioned; insulted by a brutal multitude, and there hanged. The horrid barbarities of this sentence being fulfilled on his body, which was still breathing, the hangman preparing to take out the heart and bowels, struck it several times on the chest, before life (and perhaps consciousness) was wholly extinct.

Day after day, the awful tragedies were repeated, exceeding any similar displays of power since the days of the Tudors. Each of these martyrs, as the voice of their own party pronounced them, in their last moments declared, that "they died in a just cause—that they did not repent of what they had done—that they doubted not their deaths would be avenged." When, after nine executions had taken place in one morning, the heart of the last sufferer was thrown into the fire, a savage shout from the infuriated multitude followed the words "God save King George!" The unfortunate man who had just perished was a young gentleman, named Dawson, a graduate of St. John's College, Cambridge. He had for some time been engaged to a young lady of good family, and great interest had been made to procure his pardon. The lovers were sanguine in their expectations, and the day of his release was to have been that of their marriage.

When all hope was at an end, the young lady, not deterred by the remonstrances of her kindred, resolved upon following Mr. Dawson to the place of execution. Her intention was at length acceded to: she drove in a hackney-coach after the sledges, accompanied by a relative, and by one female friend. As the shout of brutal joy succeeded the silence of the solemn scene, the words "My love,—I follow thee,—I follow thee!" burst from the lips of the broken-hearted girl. She fell on the neck of her companion, and, whilst she uttered these words, "Sweet Jesus!—receive our souls together!" expired.[359] Recitals of these domestic tragedies, proofs of the unrelenting spirit of government, tended to break the firmness of some of those who survived.

Lord Cromartie sank into dejection; Kilmarnock's fine and gentle nature was gradually purified for heaven. Balmerino rose to heroism.

The prisons were crowded with captives; the noblemen alone were committed to the Tower; even two of the Scottish chiefs were sent to Newgate; the officers were committed to the new gaol, Southwark; the common men to the Marshalsea. Meantime, strong and prompt measures were determined upon by Government.

Bills of indictment for high treason were found against Lord Kilmarnock, the Earl of Cromartie, and the Lord Balmerino, by the grand jury of the county of Surrey: a writ of certiorari was issued for removing the indictments into the House of Peers, on the twenty-sixth of June, and their trial was appointed to take place on the twenty-eighth of July following. Westminster Hall was accordingly prepared for the trials, and a high steward appointed in the person of the justly celebrated Lord Hardwicke.

On the petition of Lord Kilmarnock, Mr. George Ross was engaged as his solicitor, with permission to have free access to him at all times. On the appointed day the trials commenced. Westminster Hall was fitted up with unprecedented magnificence; and tickets were issued by the Lord Chamberlain to the Peers, to give access to their friends. At eight o'clock in the morning, the Judges in their robes, with the Garter-King-at-Arms, the Usher of the Black Rod, and the Serjeant-at-Arms waited on the Lord High Steward at his house in Ormond Street: Garter in his coat of the king's arms, and Black Rod, having the white staff attended them. After a short interval the procession to Westminster Hall began: Lord Hardwicke, designated during the term of the trial as "his Grace," came forth to his coach, his train borne, and followed by the chief judges and judges. His coach was preceded by his Grace's twenty gentlemen, uncovered, in five coaches two and two; by the Serjeant-at-Arms, and the Black Rod. The heralds occupied the back seats of his Grace's coach; the judges in their coaches followed. As the procession entered the Palace-yard, the soldiers rested their muskets and the drums beat, as to the Royal Family.

Meantime, the Peers in their robes were assembled; the Lord High Steward having passed to the House, through the Painted Chamber, prayers were read; and the peers were called over by Garter-King-at-Arms. The Lord Steward, followed first by his four gentlemen attendants, two and two; and afterwards by the clerks of the House of Lords, and the clerks of the Crown; by the Peers, and the Peers' sons, proceeded to Westminster Hall, the Lord Steward being alone uncovered, and his train borne by a page.

Proclamation for silence having been made by the Lord Steward's serjeant-at-arms, the commission was read, the lords standing up, uncovered. Then his Grace, making obeisance to the lords, reseated himself; and Garter, and the Black Rod, with their reverences, jointly presented the white staff, on their knees, to his Grace. Thus fully invested with his office, the Lord Steward took his staff in his hand and descended from the woolsack to a chair prepared for him on an ascent before the throne.

The three lords had been brought during this time from the Tower. The Earl of Kilmarnock was conveyed in Lord Cornwallis's coach, attended by General Williamson, Deputy Governor of the Tower; the Earl of Cromartie, in General Williamson's coach, attended by Captain Marshal; and Lord Balmerino in the third coach, attended by Mr. Fowler, Gentleman Gaoler, who had the axe covered by his side. A strong body of soldiers escorted these carriages.

The three lords being conducted into the Hall, proclamation was made by the Serjeant-at-Arms that the Lieutenant of the Tower should bring his prisoners to the bar, the proclamation being made in this form:—"Oyez, oyez, oyez, Lieutenant of the Tower of London, bring forward your prisoners, William Earl of Kilmarnock, George Earl of Cromartie, and Arthur Lord Balmerino, together with the copies of their respective commitments, pursuant to the order of the House of Lords."

Then the lords were led to the bar of the House by the Lieutenant-Governor, the axe being carried before them with its edge turned from them. The prisoners, when they approached the bar, made three reverences, and fell upon their knees. Then said the Lord High Steward your "lordships may arise;" upon which the three lords arose and bowed to his Grace the High Steward, and to the House, which compliment was returned by the Lord High Steward, and by the Peers.

Thus began the trial; "the greatest, and the most melancholy scene," wrote Horace Walpole to Sir Horace Mann, "that I ever saw. As it was the most interesting sight, it was the most solemn and fine; a coronation is but a puppet show, and all the splendour of it idle; but this sight at once feasted one's eyes, and engaged one's passions;"—a signal avowal for one whom a long continuance in the world's business, and, perhaps, worse, its pleasures, had hardened. A hundred and thirty-nine lords were present, making a noble sight on their benches, and assisting at a ceremony which is said to have been conducted with the most awful solemnity and decency throughout, with one or two exceptions.[360]

The Lord Chancellor Hardwicke, who presided on this occasion, has been justly deemed one of the brightest ornaments of the woolsack. The son of an attorney at Dover, as Philip Yorke, he had risen to the highest offices of the law, by his immense acquirements, and his incomparable powers of illustration and arrangement. By his marriage with a niece of the celebrated Lord Somers, he strengthened his political interest, which, however, it required few adventitious circumstances to secure. Three great men have expressed their admiration of Lord Hardwicke almost in similar terms: Lord Mansfield, Burke, and Wilkes. "When his lordship pronounced his decrees, wisdom herself might be supposed to speak."[361] In manner, he was usually considered to be dignified, impressive, and unruffled; and his intentions were allowed to be as pure and elevated, as his views were patriotic.

On this eventful day, since we cannot reject the testimony of an eye-witness of discernment, we must believe that party spirit, which had usually so little influence over his sense of justice, swayed the prepossessions of Lord Hardwicke. At all events, it affected his treatment of the unhappy men to whom he displayed a petulance wholly derogatory to his character as a judge, and discreditable to his feelings as a man. "Instead of keeping up the humane dignity of the law of England, whose character is to point out any favour to the criminal, he crossed them, and almost scolded at any offer they made towards defence." Such is the remark of Horace Walpole.[362] Comely in person, and possessing a fine voice, Lord Hardwicke had every opportunity, on this occasion, of a graceful display of dignity and courtesy; yet his deportment, usually so calm and lofty, was obsequious, "curiously searching for occasion to bow to the minister, and, consequently, applying to the other ministers, in a manner, for their orders;—not even ready at the ceremonial." Notwithstanding, Lord Hardwicke, on his death-bed, could with confidence declare "that he had never wronged any man." The unhappy Jacobites seem, indeed, to have been considered exceptions to all the common rules of clemency. None of the Royal Family were present at the trial, from a proper regard for the feelings of the prisoners, and also, perhaps, from a nice sense of the peculiarity of their own condition.

After the warrants to the Lieutenant of the Tower were read, the Lord High Steward addressed the prisoners, telling them that although their crimes were of the most heinous nature, they were still open to such defences as circumstances, and the rules of law and justice would allow. The indictments for high treason were then read: to these, Lords Kilmarnock and Cromartie pleaded guilty; but when the question was put to Lord Balmerino, he demanded boldly, but respectfully to be heard, objecting to two clauses in the indictment, in which he was styled "Arthur Lord Balmerino, of the town of Carlisle," and also charging him with being at the taking of Carlisle, when he could prove "that he was not within twelve miles of it." Not insisting upon these objections, and the question being again put to him, he then pleaded, 'not guilty.' Lord Kilmarnock and Lord Cromartie were removed from the bar, and the trial of Balmerino began. It was prefaced by addresses from Sir Richard Loyd, king's counsel, and from Mr. Serjeant Skinner, who made, what was justly considered by H. Walpole, "the most absurd speech imaginable," calling "Rebellion, surely the sin of witchcraft," and applying to the Duke of Cumberland the unfortunate appellation of "Scipio."[363] The Attorney General followed, and witnesses were afterwards examined, who fully proved, though accused by Balmerino of some inconsistencies, his acts of adherence to the Chevalier; his being present in towns where James Stuart was proclaimed King; his wearing the regimentals of Prince Charles's body guards; his marching into Carlisle at the head of his troops, with a white cockade in his cap; his presence at the battle of Falkirk, in a field with Lords Kilmarnock and Pitsligo, who were at the head of a corps of reserve. Six witnesses were examined, but there was no cross-examination, except such as Balmerino himself attempted. The witnesses were chiefly men who had served in the same cause for which the brave Balmerino was soon to suffer. After they had delivered their testimony, the "old hero," as he was well styled, shook hands cordially with them. In one or two instances, as far as can be judged by the answers, the evidence seems to have been given with reluctance. Lord Balmerino being asked if he had any thing to offer in his defence, he observed that none of the witnesses had agreed upon the same day as that which was named in the indictment for being at Carlisle; and objected to the indictment, that he was not at the taking of Carlisle as therein specified. His objections were taken into consideration; the Lords retired to their chamber, and there consulted the judges whether it be necessary that an overt act of high treason should be proved to have been committed on the particular day named in the indictment.

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]

On Thursday, the seventh of August, the Reverend James Foster, a Presbyterian minister, was allowed access to Lord Kilmarnock, to prepare him for a fate which now seemed inevitable. Great intercession had been made for the ill-fated prisoner, by his kinsman, James, sixth Duke of Hamilton, and husband of the celebrated beauty, Miss Gunning; but the friendly efforts of that nobleman were thought rather to have "hurried him to the block."[381] When a report reached him that one of the prisoners would be spared, Lord Kilmarnock had desired, with the utmost nobleness of soul, that Cromartie should be preferred to himself. Balmerino lamented that he had not been taken with Lord Lovat; "for then," he remarked, "we might have been sacrificed, and these two brave men have been spared." But these regrets were unavailing, and Lord Kilmarnock and his friend prepared to meet their doom.

Mr. Foster, on conversing with Lord Kilmarnock, found him humbled, but not crushed by his misfortunes; contrite for a life characterized by many errors, but trustful of the Infinite mercy, to which we fondly turn from the stern justice of unforgiving man. And the reverend gentleman on whom the solemn responsibility of preparing a soul for judgment was devolved, appears to have discharged his task with a due sense of its delicacy, with fidelity and kindness.

Having introduced himself to Lord Kilmarnock with the premises that his Lordship would allow him to deal freely with him; that he did not expect to be flattered, nor to have the malignity of his crimes disguised or softened;—Mr. Foster told him, "that in his opinion, the wound of his mind, occasioned by his private and public vices, must be probed and searched to the bottom, before it could be capable of receiving a remedy." "If he disapproved of this plan," Mr. Foster thought "he could be of no use to him, and therefore declined attendance." To this Lord Kilmarnock replied that, "whilst he thought it was not Mr. Foster's province to interfere in things remote from his office, yet it was now no time to prevaricate with him, nor to play the hypocrite with God, before whose tribunal he should shortly appear."

This point being settled, the minister of the Gospel deemed it necessary to persuade the Earl, that he was not to be amused with vain delusive hopes of a reprieve; that he must view his sentence as inevitable; otherwise that his mind might be distracted between hope and fear; and that true temper of penitence which alone could recommend him to Divine mercy would be unattainable.

The unfortunate Earl touchingly answered, that indeed, when he consulted his reason, and argued calmly with himself, he could see no ground of mercy; yet still the hope of life would intrude itself. He was afraid, he said, that buoyed up by this delusive hope, when the warrant for his execution came down, he should have not only the terror of his sentence to contend with, but the fond delusions of his own heart:—to overcome the bitter disappointment—the impossibility of submission. He therefore assured Mr. Foster, that he would do all in his own power to repel that visionary enemy, and to fix his thoughts on the important task of perfecting his repentance, and of preparing for death and eternity.

In regard to the part which Lord Kilmarnock had taken in recent events, there seemed no difficulty in impressing his mind with a deep sense of the responsibility which he had incurred in helping to diffuse terror and consternation through the land, in the depredation and ruin of his country: and in convincing him that he ought to consider himself accessory to innumerable private oppressions and murders. "Yes," replied Lord Kilmarnock, with deep emotion "and murders of the innocent too," And frequently he acknowledged this charge with tears, and offered up short petitions to God for mercy.

But when Mr. Foster mentioned to him that the consequences of the "Rebellion and its natural tendency was to the subversion of our excellent free constitution, to extirpate our holy religion, and to introduce the monstrous superstitions and cruelties of Popery," Lord Kilmarnock hesitated; and owned, at length, that he did not contemplate such mischiefs as the result of the contest; that he did not believe that the young Chevalier would run the risk of defeating his main design by introducing Popery; nor would so entirely forget the warnings which the history of his family offered, so far as to make any attacks upon the liberties and constitution of the country. His entering into the Rebellion was occasioned, as he then declared, by the errors and vices of his previous life; and was a kind of desperate scheme to extricate him from his difficulties. Humbled and penetrated by the remembrance of former levity, Lord Kilmarnock remarked, that not only was Providence wise and righteous, but to him, gracious; and that he regarded it as an unspeakable mercy to his soul, that he had not fallen at the battle of Culloden, impenitent and unreflecting; for that, if the Rebellion had been successful, he should have gone on in his errors, without ever entertaining any serious thought of amendment. "Often," added the contrite and chastened man, "have I made use of these words of Christ, 'Father, if it be possible, let this cup pass from me: nevertheless, not as I will, but as thou wilt.'" But he had checked himself by the reflection, that it was not for him who had been so great a sinner, to address himself to God in the same language with his blessed Saviour, who was perfectly innocent and holy.

In time, aided by the representations of his spiritual attendant, the deepest remorse for a life not untainted by impurity of conduct, was succeeded by religious peace. It was then that the prisoner turned to that Bread of Life which Christ hath left for those who hunger and thirst after righteousness. But the Minister who led him into the fold of the Great Shepherd, would not consent to administer to him the Holy Sacrament without a full confession made in the presence of the gentleman gaoler, of his past offences, and of his contrition for them. At that solemn moment, when the heart was laid open to human witnesses, Lord Kilmarnock professed the deepest penitence for his concurrence in the Rebellion, and for the irregularities of his private life: he declared his conviction that the Holy Sacrament would be of no benefit to him whatsoever, if his remorse and contrition were not sincere. This assurance was, in other words, yet, in substance the same, emphatically repeated. During the conversations held with Lord Kilmarnock, Mr. Foster perceived that the confessions of the penitent were free and ingenuous; that he examined his own heart with a searching and scrupulous care, sternly challenging memory to the aid of conscience. At last, he declared that he should rather prefer the speedy execution of his sentence to a longer life, if he were sure that he should again be entangled by the snares and temptations of the world. This was a few days before his death.

Gradually, but effectually, the spirit that had so much in it of a heavenly temper; the heart, so framed to be beloved, was purified and elevated; so that, a beautiful and holy calm, a heavenly disinterestedness, a patience worthy of him who bore the name of Christian, were manifested in one whom it were henceforth wrong to call unhappy. When Lord Cromartie's reprieve became known to Mr. Foster, he dreaded, lest this subdued, yet fortified mind, should be disturbed by the jealousies to which our worldly condition is prone: he trembled lest the sorrow of separation from a world which Lord Kilmarnock had loved too fondly, should be revived by the pardon of his friend. "Therefore," relates Mr. Foster, "in the morning before I waited upon him, I prepared myself to quiet and mollify his mind. But one of the first things he said to me was, that he was extremely glad that the King's mercy had been shown to Lord Cromartie." "My Lord," inquired Mr. Foster, "I hope you do not think you have any injustice shown you?" Lord Kilmarnock's answer was, "Not in the least; I have pleaded guilty: I entirely acquiesce in the justice of my sentence; and if mercy be extended to another, I can have no reason to complain, when nothing but justice is done to me."

With regard to some points upon which the public odium was directed to the young Chevalier and his party, Lord Kilmarnock was very explicit in his last conversations with Mr. Foster. We have already seen how far he was enabled to clear himself concerning his conduct to the prisoners at Inverness. A report having been industriously circulated, probably with a view to excuse the barbarities of the Duke of Cumberland, that an order had been issued in the Pretender's council at Inverness, to destroy the prisoners who might be taken at the battle of Culloden, Mr. Foster put the question to Lord Kilmarnock, Whether that statement were true? "I can most sincerely and freely answer, No," was the satisfactory reply; and a similar contradiction was given by the dying man to every accusation of a similar tendency.[382]

On Monday the eleventh of August, General Williamson desired Mr. Foster, "in the gentlest terms that he could use, to apprize Lord Kilmarnock, that he had received the order for his, and for Lord Balmerino's execution." Mr. Foster at first refused to undertake this office. "I was so shocked at it," writes the good man "that I could not think of delivering the message myself, but would endeavour to prepare the unfortunate Lord for it, by divesting him, as far as I could, of all hope of life." Such, indeed, had been the continual aim of all the reverend minister's counsels; and he had hoped to entrust the last mournful task of informing him of the order to other hands. On finding Lord Kilmarnock in a very resigned and calm state of mind, he ventured, however, to hint to him how necessary was that diligent and constant preparation for death which he had endeavoured to impress upon his mind. This was sufficient: the ill-fated prisoner immediately inquired, "whether the warrant for his execution was come down?" "I told him that it was," relates Mr. Foster, "and that the day fixed upon was the following Monday."

Lord Kilmarnock received this intimation with a solemn consciousness of the awful nature of its import; but no signs of terror nor of anxiety added to the sorrows of that hour. In the course of conversation, he observed to Mr. Foster, that "he was chiefly concerned about the consequences of death, in comparison of which he considered the 'thing itself' a trifle: with regard to the manner of his death he had, he thought, no great reason to be terrified, for that the stroke appeared to be scarcely so much as the drawing of a tooth, or the first shock of a cold bath upon a weak and fearful temper." At the last hour, nevertheless, the crowd,—the scaffold,—the doom, upset that sublime and heavenly resignation,—the weakness of the flesh prevailed, although only for an instant.