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.