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CXXXIV.

CHAP. George, Earl of Cromarty, Arthur, Lord Balmerino, your Lordships are brought before the most august judicature in this kingdom, in order to receive your several trials upon different charges of high treason. As the crimes whereof you stand accused are of the most heinous nature, so the accusations against you are grounded on no slight foundations. But though your charge is thus weighty and solemn, it is but a charge, and open to all such defences as the circumstances of your several cases and the rules of law and justice will admit. The law is the solid basis and support of the King's throne: it is the great bulwark of the property, the liberty, and life of every subject, and it is the security of the privileges and honours of the Peerage. By this measure, which is uniform and equal to every member of the community, your actions which are now called in question are this day to be examined and judged. If your Lordships are innocent this will be one ground of a reasonable confidence in your present unhappy circumstances. But to this consideration your own thoughts cannot fail to add another; I mean that the rules of this law are to be expounded and disclosed to you by this illustrious assembly, the whole body of the Peers of Great Britain, in whose noble and discerning minds nothing can have weight but evidence and justice. Guilt alone can endanger you, and innocence alone can acquit you." He then sarcastically told them of their felicity in being tried under the law made to regulate the trial of high treason since the Revolution. "However injuriously that Revolution has been traduced," said he," whatever attempts have been made to subvert this happy establishment founded upon it, your Lordships will now have the benefit of that law in its full extent."

Lords Kilmarnock and Cromarty pleaded guilty, but Lord Balmerino pleaded not guilty-only, however, to show the stoutness of his heart and that he might glory in what he had done, for he had been taken with arms in his hands, and he attempted no legal defence beyond objecting that he was improperly described in the indictment as being "late of Carlisle," and that on the particular day laid in the indictment on which he was charged with assaulting that city, he

Of

was more than twenty miles off; but the Lord High Steward told him that his description was an immaterial form, and that according to English procedure the overt act of treason might be alleged on one day, and proved on another.* course he was unanimously found guilty, a verdict which he heard undismayed, being resolved on the scaffold, in response to the prayer-" God bless King George," to say "God bless King James!"t

66

CHAP.

CXXXIV.

wicke.

The Lord High Steward now proceeded to pronounce Sentence sentence on all the three: By this conviction it is now passed by Lord finally determined that your Lordships are guilty of that Hardcrime which not only the laws of Great Britain but of all other countries, for the wisest reasons, adjudge to be the highest. As it gives the deepest concern to every one of my Lords, your peers, to find persons of your birth and quality stained with so foul an offence, so it must give them some satisfaction that all of you, in effect, have confessed it. Charity makes one hope that this is an indication of some disposition to that repentance which your guilt so loudly calls for. To attempt to aggravate crimes of so deep a dye, and in themselves so incapable of aggravation, against persons in your unhappy circumstances, would be a vain as well as a most disagreeable task. And yet the duty of that place in which I have the honour to sit requires that I should offer some things to your consideration, to explain more fully the necessity of that justice which is this day to be administered, and to awaken in your minds a due sense of your own condition." Having then, at most unjustifiable length, given a partial view of the campaign, and of the motives and objects of the opposite sides, he thus concludes: "If from any unforeseen accidents, not uncommon in military operations, delusive hopes were for some time kept alive, it seems to

* The last Duke of Queensbury (old Q.), whom I knew on my first coming to London, used to complain of the shameful manner in which he had once been used by losing a great cause, simply for not doing what those who required it knew to be impossible. "When the trial was nearly over," said he, "proclamation was made that I, who was the plaintiff, should come forth; and because I did not come forth, I was nonsuited and cast, although Judge, jury, and counsel, all were well aware that I was not then attending the Kingston Assizes, but was shooting grouse in the highlands of Scotland."

+ From him Walter Scott has taken the exit of Fergus MacIvor.

CXXXIV.

CHAP. have been judicially designed by Providence to render the more signal that vengeance which was reserved for them at the battle of Culloden. How much was owing, on that memorable day, to the bravery and discipline of his Majesty's troops, to the animating example, the intrepid valour, and the wise conduct of a Prince descended from him who is so deeply engraven on the heart of every member of this great assembly, that I could only repeat what their own grateful minds have already suggested to themselves, and represented to the throne. Then was experienced how much that courage which virtue, true loyalty, and the love of our country inspire, is superior to the rashness and false fire of rebellion, accompanied by the terrors of guilt. 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 laws is strong enough to bring even their chiefs to justice. What remains for me is a very painful, though a necessary, part. It is to pronounce that sentence which the law has appointed 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. The judgment of the law is, and this High Court doth award, and so

he went through the drawing, hanging, cutting down alive, burning their bowels before their faces, and the other particulars which he had eulogised as necessary for the protection of the King and constitution.* Cromarty was pardoned, out of compassion to his wife. The other two were beheaded, the rest of their sentence being remitted.

Without imputing blame in this instance to the government, their tragical end excited much commiseration:

"Pitied by gentle minds, Kilmarnock died,
The brave, Balmerino, were on thy side."

18 St. Tr. 442-530.

The next victim, notwithstanding the courage he displayed,
fell unlamented:

"But Lovat's fate indifferently we view,
True to no King, to no religion true;
No Tory pities, thinking what he was,
No Whig compassions, for he left the cause.
The brave regret not, for he was not brave,

The honest mourn not, knowing him a knave."

CHAP. CXXXIV.

Lord
Lovat.

1747.

As he had committed no overt act of treason in England, to March, bring his case before the House of Lords, it was necessary to proceed against him by impeachment. Articles being presented at the bar, the Chancellor was again appointed Lord High Steward, and the trial took place in Westminster Hall.

Hard

address to

Lord Hardwicke on this occasion cannot be accused of any Lord departure from the rules of law or justice; but he was too wicke's solicitous to praise the existing government, and he betrayed, preliminary under assumed moderation of tone, great internal exultation at him. finding such a victim in his power. All parties knowing that there was the certainty of a conviction on the clearest evidence, in his preliminary address to the prisoner when placed at the bar, he said, "The weight of this accusation, the solemn manner of exhibiting and prosecuting it, and the awfulness. of this supreme judicature, the most illustrious in the world, are circumstances that may naturally strike your mind with anxious and alarming apprehensions. Reasonable and wellgrounded must those apprehensions be if they proceed from that greatest of all terrors, a consciousness of guilt. But if your Lordship is innocent, if you have really preserved yourself untainted with the heinous crimes laid to your charge, these very awful circumstances, when duly considered, ought to have a contrary effect, and to afford you support and consolation." After the verdict of guilty came a speech of culpable length and virulence; for the punishment provided by the law in cases of high treason did not. include torturing and mangling while still alive by the Judge as well as by the hangman. After describing how Lord Lovat had forced out his clan to fight for the Pretender, he thus introduced a dissertation on clanship, much fitter for a debate in the House when sitting as a legislative assembly:

CHAP. CXXXIV.

Unjustifi

of the

speech in

"Permit me to stop here a little and lament the condition of part of this united kingdom; happily united in interests, both civil and religious; happily united under the same able length gracious monarch and the same public policy. Yet the common people, in some of the remote northern counties, are pronounc- kept in a state of bondage to certain of their fellow subjects, ing sentence. who, contrary to all law and every true principle of government, have erected themselves into petty tyrants over them, and arrogate to themselves the right of compelling them into rebellion against their lawful sovereign, under the peril of fire and sword. Astonishing it is that such a remain of barbarism should have subsisted so long in any quarter of this civilised well-governed island. But let it be accounted one good fruit of this inquiry, that it has been so clearly made manifest. Such a knowledge of the disease points out the remedy. This usurped power was audaciously made use of over your clan. It is true your Lordship's activity in exercising it rose and fell in proportion to the appearance of the good or bad success of the Pretender's cause; but after the advantage gained by the rebels at Preston Pans, which you vainly called a victory not to be paralleled in history, you thought it right to throw off the mask, and openly to espouse a party which you then hoped might be espoused with impunity." After a history of the rebellion, and many other topics, political, economical, military, and religious, at last came the sentence, which, though frightful, it must have been a relief to hear. Lovat died bravely, exclaiming " Dulce et decorum est pro patriâ mori; " but his treachery and cruelty were so notorious, that a savage shout of exultation was raised when he laid his head on the block.

Scandalous execution of Charles Radcliffe on an old attainder.

About this time another execution took place, which was universally condemned, and which I think reflects great disgrace upon Lord Hardwicke. As the legal adviser of the Crown, he was chiefly answerable for it, although he did not ostensibly take any part in the proceeding. Charles Radcliffe, when quite a boy, had been engaged in the rebellion of 1715, and being attainted had escaped from Newgate. His elder brother, the Earl of Derwentwater, had then been beheaded, all the possessions of his family had been confiscated,

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