London in the Jacobite times, Volume I

by Dr. Doran

General Carpenter, who had been summoned at the earl’s request, spoke to the attack and surrender. It was then seen why he had been called by the earl,—who asked the very absurd question,—if he had had anything to do with the capitulation. Carpenter replied that Wintoun did not directly and personally interfere, but that he was included under the general treaty. Carpenter positively declared that he had held out no hope to the rebels that surrender would necessarily ensure the safety of their lives. When General Wills came forward to add his testimony, the attention of the audience was deepened, to hear if, on the last point, he would corroborate General Carpenter, and the audience must have been satisfied that no assurance of mercy was held out even to induce the Jacobites to surrender. General Wills deposed that when the first overture was made, by Mr. Oxburgh (an Irish ex-officer), sent out by Forster, the former offered that the force in Preston should lay down their arms and submit; and he expressed a hope that General Wills would ‘recommend them to the king’s mercy.’ THE SURRENDER AT PRESTON. On this, Wills refused to treat at all with rebels who had slain the king’s subjects; but, on pressure of appeal to his sense of honour and feelings of mercy, he, Wills, agreed that if the rebels would surrender at discretion, ‘he would prevent the soldiers from cutting them to pieces.’ It was while these terms were under consideration that the Earl of Derwentwater and Mr. Mackintosh were sent to the English camp, as hostages, that nothing might be carried on for future furtherance of the defence, while the terms were being considered. At seven o’clock in the morning of the next day, Forster sent notice of their willingness to surrender at discretion. Mackintosh, standing near Wills, expressed his doubt of the Scots consenting to surrender on such terms. The negotiation was then, temporarily, broken off, but, at last, the surrender at discretion was made and accepted. Wills reiterated that no hope of mercy was held out to induce them to yield the place and themselves. Patten, in his ‘History of the Rebellion,’ states, in confirmation of the above, that he ‘heard the answer which Colonel Cotton, whilst he was at the White Bull, gave to a gentleman among the Rebels, who asked if they might have mercy.’—‘That, Sir, I cannot assure you of,’ replied the Colonel, ‘but I know the King to be a very merciful Prince;’ and then he demanded of all the noblemen and gentlemen ‘to give their Parole of Honours to perform what they on their part promised.’

A PRISONER AT BAY.

When Lord Wintoun asked Wills if he had not attacked the town without summoning it, thus compelling it to resist, Wills readily answered that such was the case, but then, while he was viewing the place, the rebels shot two of his dragoons, and the attack was made in consequence. Colonels Cotton and Churchill, with Brigadier Munden, confirmed the testimony of their commanders by whom they had been sent into the town to treat with the insurgents. Wintoun asked Cotton if some of the rebel soldiers had not been shot, after the capitulation. The Colonel, answering as readily as Wills, said, ‘Yes, certainly; because they were trying to escape, contrary to the letter and spirit of the terms of surrender.’ That was partly the reason why, as Brigadier Munden said, when the leaders of the rebel force were taken to the English camp, ‘Mr. Wills received them with the utmost detestation and contempt.’

When the Lord High Steward called on Wintoun for his defence, the earl made the whole audience smile, by his cool demand for a month in which to prepare it. He had never seen his counsel, he said, but once. He knew nothing of law. His witnesses were on their road, delayed by the bad weather which made travelling difficult. ‘They will be of no use to me,’ he said, ‘if they arrive after I am dead!’ Up to this time, his counsel had not opened their mouths, and lest they should do so now, the Attorney-General and Mr. Cowper started to their feet and made speeches against any delay in a trial which had once commenced. INCIDENTS OF THE TRIAL. Cowper was particularly bitter—he who afterwards needed judicial indulgence, and was so near being hanged himself! The public looked on from the galleries like spectators gazing into the arena where a deadly struggle for life was going on. When, at the close of the day, the Peers refused to allow Wintoun further time, as being contrary to custom after a man was once on trial, the earl remarked: ‘I think it very hard and great injustice that I should be tied down to a foolish form, when I am in danger of my life!’ He curtly bowed, walked out between his two over-officious friends, the Lieutenant and the Gentleman with the axe, and was shortly after conveyed in a carriage to the Tower. The mob did not know how it had gone with him. They were silent. In the coffee-houses, the earl’s sayings and doings of the day gave additional liveliness to those not usually dull localities. But, on that night, the men who brought news were more welcome than the men who brought nothing but wit.

WINTOUN BAITED BY COWPER.

On the second day of the trial, after the usual processional circumstance, and a formal permission to the Judges to put their hats on over their wigs, Lord Wintoun was again called upon for his defence. He looked towards his counsel. His counsel looked towards him. The earl then said to the clerk, who stood near him throughout the trial, and repeated his words aloud to the House, that he was ignorant of law, and that his counsel would speak for him. Then ensued a scene that occurred more than once while the trial was in progress. The Lord High Steward complained that he had to tell the earl again and again that his counsel dared not speak except to a point of law, and that he, against whom the indictment was laid, must first state what the point of law was! He was then invited to state it. The earl answered, with the slightest touch of impatience, ‘It is impossible for me to do a thing I don’t understand. I don’t know what the point of law is no more than a man that knows nothing about it!’ At this natural remark some of the lords tittered; whereupon Lord Wintoun said with quite natural gravity: ‘I am only speaking in my own defence. I do not expect to be laughed at!’ On which words, falling amid a sudden silence, the Lord High Steward came to the earl’s support, saying with dignity: ‘I think his Lordship does observe well. I hope every one will forbear that!’ At the end of this incident, the old dialogue was renewed. Wintoun was invited to speak; he referred to his counsel; Lord Cowper explained the law and custom, till he was weary of repeating it, but Wintoun was never weary of provoking him to the tiresome process.

At length, Wintoun, the Jacobite earl, asserting that it would be useless to produce his witnesses then in town, until he could bring up others from the North to corroborate them, demanded further delay. Mr. Cowper impatiently arose to press for immediate proceeding. He taunted the earl by acknowledging that he had taken the best course he could in such desperate circumstances; beating about the bush; fencing with direct questions; trying to show that he might commit treason without being a traitor;—yet being unable to disprove what had been alleged and confirmed against him.

THE KING’S COUNSEL.

Wintoun fearlessly replied that his counsel could show he was incapable of committing treason, with which crime he was charged in the indictment. This was in his boldest style of fencing. There can be no doubt that when he asserted the loyalty of himself and family, and denied that he had any design to overthrow the constitution of the realm, he thought of loyalty to James III. and the constitution as it was established under the Stuarts. At length, the Lord High Steward bade the managers for the Commons to proceed. Mr. Cowper jumped to his feet, and showed with alacrity that every iota of evidence against the prisoner was confirmed. He alluded to no rebutting testimony being even attempted; and, with something of a sneer, he commented on the absurdity of Lord Wintoun wishing his treason to be viewed in a light that should make it appear something quite different.

When Mr. Cowper had finished, Sir William Thomson rose to make his thrust at a man who could not speak for himself, and who was not yet allowed to have others speak for him. Sir William was strongest when he denounced Wintoun’s plea,—that there were circumstances in his case which made it different from that of others, and entitled him to be more mildly dealt with,—as simply nonsense. It certainly was ignoble. As for the earl’s innocence of heart, ignorance of law, and loyalty to ‘the King,’ Sir William laughed at all three. He concluded by a demand for ‘justice,’ as the only way of obtaining safety and security for England.