The summer is normally a period for Parliament to go into recess, and for MPs and members of the Lords to take some time off. On extraordinary occasions, though, Parliament has been known to sit through the summer. As Dr Robin Eagles explains, this was true of 1746 as the government got on with the task of mopping up after the ‘45.
Charles Edward Stuart had raised his standard at Glenfinnan on 19 August 1745, marking the formal beginning of his attempt to take the throne for his father. His initial successes took the government by surprise. Ill-prepared and under-motivated troops proved no match for the Highland charge. Buoyed by this, in the winter of 1745-6 Charles Edward marched his army south, making it as far as Derby. They got no further, disappointed by the failure of any major landowners to turn out for them.
In April 1746 it all came to a close at Culloden, where the by now depleted Jacobite army was crushed by a reinvigorated government force commanded by the duke of Cumberland. Charles Edward fled and began his soon to be romanticized period of hiding in the heather. Many of his followers were rounded up, tried and either executed or transported.
Far away from the fighting, Westminster found itself busy dealing with the rebellion’s aftermath. Legislation was rushed through, including the notorious Act for Disarming the Highlands. Most dramatic of all, though, was the joint trial of three Scots peers, who had been arrested for taking part in the rebellion: William Boyd, 4th earl of Kilmarnock, George Mackenzie, 3rd earl of Cromartie, and Arthur Elphinstone, 6th (and last) Lord Balmerino.
Balmerino was the oldest of the three, having been born in the year of Revolution, 1688. He had only succeeded to the title in January 1746, following the death of his older brother. Their father had served as a representative peer at Westminster under Queen Anne, and although the 5th lord had been sympathetic to the Jacobites, he had remained largely inactive. Arthur, on the other hand, had been ‘out’ in 1715. He was back in Scotland in time to declare for Charles Edward in 1745, only to be captured at Culloden.
Kilmarnock’s family had been government loyalists. Indeed, Kilmarnock himself had joined his father countering the 1715 rebellion. Subsequently, he converted to Jacobitism after marrying into the Livingston family, well known for their adherence to the Stuarts. Lack of funds was another factor. Walpole had awarded him a pension to ensure his vote for Court candidates. Following Walpole’s fall the money was stopped. Hard up by the time Charles Edward appeared on the scene, he chose to risk all by joining the rebellion. At Derby, he was aggrieved to be lodged at the Nag’s Head, while other commanders got better quarters. His valet saw to it that he was relocated. He had worse luck at Culloden after mistaking a party of government dragoons for a Jacobite regiment and was captured.
Cromartie’s loyalties were also mixed. He may have believed, as Kilmarnock did, that the Jacobites’ chances in Scotland were solid and it was well worth the bet. Unlike the other two, he was not taken at Culloden, but in Sutherland, following the battle of Littleferry, fought the day before. After his men were routed, he fled to nearby Dunrobin House, where he was found hiding under the countess of Sutherland’s bed.
These were the three men, whose positions granted them the right to trial before the House of Lords.
On Monday 28 July, the Lords adjourned to Westminster Hall. The previous week had seen screeds of them arriving to qualify themselves to sit by taking the oaths. The trials of three peers for treason was an extraordinary occurrence and loyal members wanted their commitment to the regime made apparent.
Proceedings began with the findings of the various grand juries being read out. The prisoners were then brought to the bar and addressed by the Lord High Steward, who informed them:
The Law is the solid Basis and Support of the King’s Throne. It is the great Bulwark of the Property, the Liberty, and Life, of every Subject; and it is the Security of the Privileges and Honours of the Peerage: By this Measure, which is uniform and equal to every Member of the Community, your Actions, which are now called in Question, are this Day to be examined and judged.
Cromartie and Kilmarnock made things easy by pleading guilty. Only Balmerino chose to contest the charge. Having gone to this trouble, he then failed to offer any defence after the case for the prosecution had been heard. This prompted the command for the Lords to adjourn to consider their verdicts and a protestation from the bishops not to attend when sentence was delivered. After a period of deliberation, the Lords returned to Westminster Hall, where they declared Balmerino guilty along with the other two. The three men were then remanded to the Tower to await sentencing. On his way back, Balmerino was said to have stopped his coach at Charing Cross to buy ‘honey-blobs’ (gooseberries).
On Friday 1 August, they were back in the Hall to hear their fate. Each of them was sentenced to be hanged, drawn and quartered, though this was later commuted to simple beheading. Job done, the Lord High Steward rose and broke his staff, indicating the close of proceedings. For the Lords, the conclusion of the trial was not quite the end of their business and it was not until 12 August that the king made his way to Parliament to grant the royal assent to a clutch of bills and order Parliament prorogued to the following September.
For Balmerino, Cromartie and Kilmarnock, all was not over either. The last two brought what interest they had into play in the hopes of avoiding their fate. They can only have been too aware of the 17 poor devils, whose grisly executions on Kennington Common had overlapped with their own process. [London Evening Post, 26-29 July 1746]. Horace Walpole reported that Balmerino, who throughout showed remarkable sang-froid, had marked time in the cells by demonstrating to Cromartie how he should lay his head on the block. He also tried to keep his spirits up by mocking the gaoler carrying the axe before them to and from the trial, telling him:
take care, or you will break my shins with this damned axe
According to one newspaper ‘very great interest’ was made both for Cromartie and Kilmarnock, on the grounds that each had pleaded guilty. [Penny London Post or the Morning Advertiser, 30 July-1 August 1746]. In addition, both Ladies Cromartie and Kilmarnock braved the Court to hand in petitions seeking mercy for their husbands. [General Advertiser, 4 August 1746]. In the end, though, it was Cromartie alone who was selected for mercy. Lady Cromartie was pregnant, which gained him some sympathy, but he also benefited from the Prince of Wales exerting his influence on his behalf.
For Balmerino and Kilmarnock, though, there was to be no reprieve. On 18 August, six days after most Members of Parliament had left for a well-earned summer break, the two condemned men climbed the scaffold that had been erected on Tower Hill. Kilmarnock went first and although the first stroke of the axe killed him, it needed a second to remove the head. Balmerino, elegantly turned out in his regimentals, showed none of Kilmarnock’s anxiety and, unlike his partner, made no apology for rebelling. He gave the headsman three guineas and one of the warders his peruke. He then tested the axe before he settled on the block. Three blows were required to sever the head.
Kilmarnock’s death was not the end of the story for his family in Parliament. His heir, James, had also been at Culloden, but in his case, serving in the government army. Although the earldom of Kilmarnock was extinguished by his father’s treason, he later inherited the earldom of Erroll from an aunt, changed his surname to Hay, officiated at George III’s coronation as High Constable of Scotland, and went on to become a Tory peer in the House of Lords. Cromartie’s son, Lord MacLeod, who had served alongside his father, was pardoned and later created a Swedish count. He finally secured election to Parliament as MP for Ross-shire in 1780.
RDEE
Further Reading:
Christopher Duffy, The ’45: Bonnie Prince Charlie and the Untold Story of the Jacobite Rising (2003)
Frances Vivian, A Life of Frederick, Prince of Wales, 1707-1751: A Connoisseur of the Arts (2006)
Letters to Henry Fox, Lord Holland…, ed. earl of Ilchester (1915)
