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and to let his sun set with as full and fair a light as it was possible."[364] During the time that the Lords were withdrawn, the Solicitor-General Murray, and brother of Murray of Broughton, addressed Balmerino, asking him "how he could give the Lords so much trouble," when he had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.