Chapter XXXVIII: A.d. 1746-1747 (2)

They were, however, fully established by the strongest proofs. The written evidence consisted of papers found in his lordship’s strong box, besides some letters which he had written to Prince Charles, the last of which having come into the hands of Murray of Broughton, in his capacity of secretary to the prince, were basely delivered up by him to save his own worthless life. Lord Lovat exerted all his ingenuity to evade the force of the evidence; but the proofs of his criminality were too clear to admit of any doubt. His lordship objected to the admissibility of Murray as a witness, on the ground that he was attainted by act of parliament made in the previous session, and that he had not surrendered himself in terms of the act. Having stated that he had several objections against the witness, one or two of which he considered essential, a discussion ensued as to whether all these objections should not at once be stated. As giving a fair sample of the manner in which the trial was conducted, the argument on both sides, on the point alluded to, is here given:--

“MR. ATTORNEY-GENERAL.--My lords, I observe that the noble lord
at the bar said that he had several objections to the examining
this witness, and that one or two of them were essential; but
the noble lord has not mentioned more than one. I presume, my
lords, it would be proper that he should name all his objections
at once, that the managers may have an opportunity of answering
them all, and receiving your lordships’ judgment upon the whole;
therefore, if he has any other objections to offer, it would
be proper he should mention them now to your lordships. LORD
LOVAT.--My lords, I submit it to your lordships that that is a
very odd proposition. I give your lordships an essential one now,
and when that is answered I have another. I am not to be directed
by those who are my _persecutors_. LORD-HIGH-STEWARD.--My Lord
Lovat, you are not to be directed by your accusers, but by the
lords who are your judges; and the course of proceeding in this
and all other courts is, that a person, who objects to any
witness, should name all his objections at the same time; and
it is the more material in this court, as it tends to prevent
the trouble of making several unnecessary adjournments. LORD
L.--My lords, as this objection is very essential, I pray that
it may be answered before I make another. LORD TALBOT.--If this
is a material objection to the witness, then there will be no
occasion for any other; but if it is an immaterial one, then your
lordships may go into any other; but the way proposed by the
managers may be very detrimental to the unhappy person at the
bar. LORD H. S.--Your lordships hear what is proposed; and the
question is, whether the noble lord at the bar shall name all his
objections now, or take them up one by one. SIR WILLIAM YONGE,
(one of the managers from the commons.)--My lords, I should hope
that, in any course of proceeding, where objections of this kind
are made, they should be made all together; for if they are made
separate, we must consequently make distinct answers to them all,
which may oblige your lordships to adjourn often to the chamber
of parliament, which will create a great and unnecessary delay
of time: and my lords, there can be no objection to his naming
the whole at once, since they will all be distinctly considered
by your lordships, and undoubtedly receive distinct answers.
I therefore humbly insist, that he may be obliged to name all
his objections at once. MR. NOEL, (another manager.)--My lords,
what we are now upon is no point of law at all: it is simply,
whether the noble lord at the bar as is usual should not name all
his objections at once? When he does name them, then to such as
are clear points of law he must be heard by his counsel; but at
present, my lords, we are upon a question concerning the course
of proceeding, whether he shall name them all at once, that they
may be taken into consideration at the same time? My lords, one
thing struck me in a very extraordinary manner:--It was said by
the noble lord at the bar, that he was not to be directed by his
_persecutors_. My lords, we are no persecutors; we persecute
no man; we are intrusted by the commons, who carry on this
prosecution against the noble lord at the bar for treason, and
we prosecute for the preservation of the king’s government and
the laws of the land. LORD L.--My lords, I said I was not to be
directed by those who accused me. Your lordships cannot expect
I can say what I have to offer in an eloquent manner. My lords,
should the saving of a little time be a reason for taking away
a person’s life? I hope these will not act like the parricides
who took off the head of both kingdoms in a day by their
prosecution. I am a peer of this land, and I think no excuse of
saving time should be allowed as a reason to destroy me. LORD H.
S.--My Lord Lovat, the lords will use all the deliberation, and
give you all the time that is requisite for your defence; but I
must beg your lordship will have so much consideration as to keep
your temper, and not suffer yourself to be hurried into passion,
for that may greatly prejudice you in making your defence. Your
lordship will find the advantage in your defence by keeping your
temper. LORD L.--I give your lordship my humble thanks: and since
your lordships will not allow me counsel, I have spoke the little
nonsense I had to say; but now your lordships shall hear me say
nothing out of temper. LORD H. S.--My Lord Lovat, the question
now is, whether you shall name all your objections at once? I
must acquaint your lordship that that is the rule in the courts
below, that if several objections are made to a witness, they are
all named at once, in order to prevent unnecessary delays. LORD
L.--My lords, to show how much I desire to save time, though,
according to the course of nature, my time can be but short,
I am so far from desiring to give your lordships trouble, or
to prolong time, that I do insist upon this objection to the
witness, and rely upon it as the only material objection.”[1295]

The managers having offered to prove, by the record of the court of King’s bench, that Mr. Murray had surrendered himself within the time prescribed, the question whether the record should be received in evidence, was argued at great length by the counsel for Lord Lovat, and the managers on the part of the prosecution. Having decided that the record might be read and given in evidence, Lord Lovat offered to falsify the record, by proving, in opposition to the averment therein contained, that Mr. Murray had not surrendered himself as required by the act of parliament. The court, however, decided that the record of the court of King’s bench, which was, nevertheless, literally untrue, could not be falsified by oral evidence.

Being called upon to make his defence on the sixth day of the trial, Lovat gave in a long paper, in which he commented with great severity upon the witnesses, whose testimony he maintained was not to be credited. He designated Secretary Murray as “the most abandoned of mankind, who, forgetting his allegiance to his king and country, had, according to his own confession, endeavoured to destroy both, like another Catiline, to patch up a broken fortune upon the ruin and distress of his native country. To-day stealing into France to enter into engagements upon the most sacred oath of fidelity; soon after, like a sanguinary monster, putting his hand and seal to a bloody proclamation, full of rewards for the apprehending of the sacred person of his majesty, and lest the cup of his iniquity had not been filled, to sum up all in one, impudently appearing at their lordships’ bar to betray those very secrets which he confessed he had drawn from the person he called his lord, his prince and master, under the strongest confidence.” “Thus far,” he concluded, “I thought it my duty, in vindication of myself, to trouble your lordships, and without further trespassing upon your patience, freely submit my life, my fortune, my honour, and what is dearest of all, my posterity, to your lordships.”[1296]

After the managers for the prosecution had addressed the court, Lord Lovat was withdrawn from the bar. The whole peers present--117 in number--unanimously found his lordship guilty. Lord Lovat was then called back to the bar, and informed by the lord-high-steward of the judgment of the court. Being brought up next day to receive his sentence, he addressed the court in a long speech, in which he gave a rambling recital of his services to the house of Hanover; and after receiving sentence, he implored their lordships and the managers of the commons to recommend him to the mercy of his majesty. Before leaving the bar, he said, “God bless you all, and I bid you an everlasting farewell. We shall not meet all in the same place again. I am sure of that.”

“The public were ravenous with curiosity about the great Leviathan that had been at last so effectually hooked, and it was necessary to fill the ear of London with details of his previous history, as well as anecdotes of his conduct since his capture. Many of them are fabulous, and many not worth preserving, but a few are too characteristic to be passed over. They may be announced by an incident not mentioned in the contemporary accounts, but preserved by tradition. On his return from the House of Lords to the Tower, an old woman not very well favoured, had pressed through the crowd and screamed in at the window of the coach, ‘You’ll get that nasty head of yours chopped off, you ugly old Scotch dog,’ to which he answered, ‘I believe I shall, you ugly old English b----,’ paying her back with the feminine of the masculine epithet she had applied to him. The major of the Tower coming to visit him and ask how he did, he answered, ‘Why, I am about doing pretty well, for I am preparing myself, sir, for a place where hardly any majors, and very few lieutenant-generals go;’ this was a more distinct hint than that given to the House of Lords.”[1297]

On the 2d of April the sheriffs of London and Middlesex received a warrant for his execution, which was appointed to take place on the 9th. His lordship, it is said, petitioned the king that he might be despatched by the maiden, the Scottish instrument of decapitation; but his application was not attended to. His approaching fate did not in the least discompose him, and though in the eightieth year of his age, his spirits never flagged, nor was his natural vivacity in any degree diminished. He said, the day before his execution, that he was never at any time in better spirits; and he told Dr. Clark, his physician, that the Tower was a better recipe for upholding them than the emetics he used to give him.[1298] Though regardless of death, and even occasionally facetious on the circumstances of his coming exit, he was not indifferent to the consolations of religion, and cheerfully availed himself of the spiritual assistance of a Catholic priest. Early on the morning of the execution, 1,200 troops drew up on Tower-hill, and all the preparations were gone through as in the former instances. About an hour before the execution, a serious accident occurred, in consequence of the fall of a large scaffolding with 400 persons, by which eighteen were killed on the spot, and many bruised and crippled. When Lovat heard of it his cool remark was,[1299] “The more mischief the better sport.” When he arrived at the scaffold, Lovat was obliged, from infirmity, to obtain the assistance of two persons in mounting. He displayed, to the very last, his characteristic fortitude, or rather bravado, and, with great coolness, felt the edge of the axe, with the sharpness of which he declared himself satisfied. On looking round and observing the great crowd, he said, “God save us,--why should there be such a bustle about taking off an old gray head that cannot get up three steps without two men to support it.”[1300] He gave the executioner ten guineas, advised him to perform his duty firmly, and take a good aim, and told him that if he mangled his shoulders, he would be displeased with him. In conversation he used frequently to cite passages from the classics; and, on the present occasion, he repeated the celebrated saying of Horace,--“_Dulce et decorum est pro patria mori_,” as peculiarly applicable to the cause for which he was about to suffer. After spending some time in devotion, this remarkable man laid his head down upon the block with the utmost composure, and the executioner struck it off at a single blow. His lordship had given directions that his body should be carried to Scotland, and his friends had removed it to an undertaker’s in the Strand preparatory to its being sent down; but, by order of government, it was interred at St. Peter’s in the Tower, in the same grave with Lords Kilmarnock and Balmerino.

A _The Scaffold._

B _Lord Lovat’s Head on y^e Block._

C. _Cloth to receive the Head._

D. _The Executioner with y^e Axe._

E. _The Coffin._

F. _The House from which he came on the Scaffold._

Phototype _fac-simile_ from a rare contemporary print in the possession of James Drummond, Esq., R.S.A.]

Whilst these executions could not fail to impress the disaffected with a strong idea of the power and inclination of government to uphold and maintain the authority of the law, they were calculated by their number and severity rather to excite a thirst for vengeance, than to inspire that salutary fear which it is the object of punishment to promote. During these executions, a scheme was concocted to arrest the arm of the law by seizing and carrying off the person of the Duke of Cumberland, and retaining him as a hostage for the lives of the prisoners. The originators of this bold design went from London to Paris, and laid their plan before Charles shortly after his arrival from Scotland, and offered to make the attempt; but Charles refused to sanction it, and the scheme was dropped.[1301]

By way of conciliating the offended feelings of the nation, the government got an act of indemnity passed in June, 1747, granting a pardon, with certain exceptions, to all persons who had been engaged in the rebellion; but these exceptions were so numerous as to divest the act of all pretensions to the character of grace or favour. Besides all persons attainted of high treason by act of parliament or judgment, or conviction of high treason by verdict, confession, or otherwise, upwards of eighty persons were specially excepted by name.[1302]

FOOTNOTES:

[1283] Shenstone has commemorated this melancholy event in his plaintive ballad of ‘Jemmy Dawson.’

[1284] _Carlisle in ’45_, p. 244.

[1285] “He is,” says Walpole, “the most natural, brave old fellow I ever saw: the highest intrepidity, even to indifference. At the bar he behaved like a soldier and a man; in the intervals of form, with carelessness and humour.... At the bar he plays with his fingers upon the axe, while he talks to the gentleman gaoler; and one day, somebody coming up to listen, he took the blade and held it like a fan between their faces. During the trial a little boy was near him, but not tall enough to see; he made room for the child, and placed him near himself.”

[1286] As will be seen, the more barbarous and ignominious part of the sentence was not carried into effect; Kilmarnock and Balmerino were put to death by simple decapitation.

[1287] The original of the above letter, from which this copy was taken, is among the _Stuart Papers_, and is written in a remarkably bold and steady hand. The Chevalier sent a copy of this letter to Charles on 20th January, 1747. “I send you,” says he, “a copy of poor Lord Balmerino’s letter. I shall inquire about his widow, and send her some relief if she stands in need of it.”--_Stuart Papers._ James was as good as his word. See Mr. Theodore Hay’s letter to Secretary Edgar, of 10th June, 1747, and Lady Balmerino’s receipt, 18th May following, for £60, in the _Stuart Papers_. The letter of Lord Balmerino, and the circumstances of his death, are feelingly alluded to in a letter written by Lady Balmerino to the Chevalier, from Edinburgh, on 15th June, 1751:--“Before my dear lord’s execution, he leaving this world, and having no other concern in time but me, wrote a letter to your Majesty, dated 17th August, 1746, recommending me and my destitute condition to your Majesty’s commiseration and bounty. You are well informed of his undaunted courage and behaviour at his death, so that even your Majesty’s enemies and his do unanimously confess that he died like a hero, and asserted and added a lustre which never will be forgot to the undoubted right your Majesty has to your three realms. He had the honour to have been in your Majesty’s domestick service in Italy, and ever preserved, before his last appearance, an inviolable, constant attachment to your royal house and interest, which at last he not only confirmed by his dying words, but sealed it with his blood, than which a greater token and proof it is not of a subject to give of his love and fidelity to his sovereign.”

[1288] “The general plea and defence of the prisoners at Carlisle was that they were _forced_ into the rebellion--_i.e._, they were put under influences by clanship and such like, morally equivalent to force.”--_Carlisle in ’45_, p. 257.

[1289] True Copies of the Papers wrote by Arthur Lord Balmerino and others, published in the year 1746.

[1290] _Carlisle in ’45_, p. 247-50.

[1291] One of them, Cappock, (created Bishop of Carlisle by Charles,) made a long speech in support of the claims of the house of Stuart. He prayed for “King James,” Prince Charles, and the rest of the Stuart family, called King George an usurper, and when found guilty, he thus addressed his fellow-prisoners at the bar:--“Never mind it, my boys; for if our Saviour was here, these fellows would condemn him.” Observing Brand extremely dejected, he said to him, “What the devil are you afraid of? We shan’t be tried by a Cumberland jury in the other world.”--_Scots Mag._ vol. viii. p. 498.

[1292] _Carlisle in ’45_, pp. 254 and 266.

[1293] Boyse, p. 176.

[1294] The Laird of Macleod, in a letter to Lord-president Forbes, dated 18th December, 1746, says, “I saw unhappy Lovat to-day. Except for the feebleness of his limbs, his looks are good. He asked me several general questions, and particularly about you;--said he was resigned, and ready to meet his fate, since it was God’s will;--asked after his children, &c.” In another letter to the president, written two days thereafter, he again alludes to his lordship:--“Lovat behaved well at the bar of the house of peers, and they say with spirit. Granville and Bath spoke very strongly with regard to the seizure of his estate and effects; and that matter is ordered to be rectified, except in so far as private creditors come in the way.” Sir Andrew Mitchell, however, who was more of a courtier than Macleod, viewed matters in a different light. In a letter to the president, 26th December, 1746, he remarks, “Your lordship will have heard an account of Lord Lovat’s behaviour; and, therefore, I shall not trouble you with the particulars; only, I must observe, there was neither dignity nor gravity in it: he appeared quite unconcerned; and what he said was ludicrous and buffoonish; but his petition for the restoration of his effects, &c., was bold and well worded; which, however, would have been passed over without notice, had not Lord Granville bounced, and Lord Bath vapoured, and procured an order to be entered in the Journals, and have by that acquired to themselves a sort of popularity, which you know they very much wanted. No Scots nobleman spoke on this occasion; they are prudent and cautious. God bless them!”--_Culloden Papers._

[1295] Trial published by order of the House of Peers. London, 1747.

[1296] He made several appeals calculated to move commiseration for his grey hairs. “My lords,” he said, at the commencement, “I have not had the use of my limbs these three years; I cannot see, I cannot hear; and I beg, if your lordships have a mind I should have any chance of my life, that you will allow either my counsel or solicitors to examine my witnesses, and to cross-examine those produced on behalf of the crown, and to take notes.” If he had been tried, on the charges brought against him, in Scotland forty-six years earlier, he would have been allowed this privilege; but the rules of English law confined the assistance of counsel, in cases of treason, to purely legal questions. At the conclusion of the second day he complained of the hardships of the early daily attendance to one of his infirm constitution, and said, “I must therefore beg that your lordships will indulge me with a later hour and some respite; otherwise I shall die at your bar,” but the request seems to have been unheeded. Another appeal of the same description, in which he said, “I fainted away thrice this morning before I came up to your lordships’ bar; but yet was determined to show my respect to your lordships, or die upon the spot,” produced a respite of a day.--Burton’s _Life of Lovat_, p. 257.

[1297] Burton’s _Lovat_, pp. 262, 263.

[1298] _Culloden Papers_, p. 302.

[1299] Burton’s _Lovat_, p. 265.

[1300] Burton’s _Lovat_, p. 265.

[1301] Vide Letter in the _Stuart Papers_ from the Rev. Myles Macdonell to the Chevalier de St. George, dated St. Amiens, 4th May, 1747.

[1302] Among these were the Earls of Traquair and Kellie, Robert Maccarty, styling himself Lord Clancarty, Sir James Stewart of Good Trees; Sirs John Douglas, James Harrington, James Campbell, William Dunbar, and Alexander Bannerman; Archibald Stewart, late provost of Edinburgh, Chisholm of Comar, Cameron of Dungallon, Drummond of Bochaldy, Fraser of Foyers, Farquharson of Bulmarrell, Fraser of Avochnacloy, Dow Fraser of Little Garth, Fraser of Browich, Fraser of Gortuleg, Gordon of Abochie, Grant of Glenmoriston, Hunter of Burnside, Hay younger of Rannus, Irvine of Drum, Macdonald of Barisdale, M’Gregor of Glengyle, Macleod of Raasay, Gilbert Menzies, younger of Pitfodels, Moir of Stonywood, Æneas Macdonald, James Macdonald, brother to Kinlochmoidart, Macdonell of Glengarry, Macdonald of Glenco, Robertson of Strowan, Robertson of Faskally, Robertson of Blairfetty, Stuart of Kynnachin, Turner, younger of Turner-hall, &c., &c.

Among those formerly attainted and excepted in the above-mentioned act, were the following, viz., Lords Pitsligo, Elcho, Nairne, and Ogilvy, Lord George Murray, Lord Lewis Gordon, Lord John Drummond, ---- Drummond, eldest son of Lord Strathallan, the Master of Lovat, Graham of Duntroon, Sir William Gordon of Park, Gordon of Glenbucket, young Lochiel, Dr. Cameron, Cameron of Tor Castle, young Clanranald, Lochgarry, young Barisdale, Macdonald of Glencoe, Macpherson of Cluny, Maclachlan of Castle Lachlan, Mackinnon of Mackinnon, Stewart of Ardshiel, Lockhart, younger of Carnwath, Oliphant of Gask and his eldest son, Graham of Airth, Roy Stewart, Farquharson of Monalterye, Hay of Restalrig, &c.