"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."