Dorothy Forster, by Walter Besant

Chapter xxxvi.

The Lords’ Trial.

Meantime, Justice was pursuing her way in the slow but certain method of English law, which must be far more terrible to the wrongdoer than the swift and sudden revenges of foreign States. As for the gentlemen and the baser sort, though in the north many were already under sentence of death, those in London were as yet left in prison, waiting their turn in affected carelessness, in sullen gloom, in remorse, or indifference, according to their mood. Tom, for his part, changed in his temper from day to day; yet, since the Judas-like falling off of the villain Patten, he began to droop, and to lose even the cheerfulness which can be procured from a bottle of wine. As regards the lords in the Tower, their case was brought before the House of Commons by Mr. Lechmere, and their impeachment was sent to the bar of the House of Lords. On the 9th of January they were all brought by water to the Upper House, where the articles of impeachment were read to them. Time being granted them to prepare their pleas, they were carried back to the Tower.

It was, perhaps, some consolation to the unfortunate prisoners that along the whole of the way in returning they were escorted by a Jacobite mob, who cheered them continually. Yet, methinks, no cheering of a mob could reconcile me to the loss of my head, coupled with the feeling that it had been foolishly thrown away. The lords were allowed to stop on their return at the Fountain Tavern, in the Strand, where for the last time they took dinner and a bottle of wine together. You would have thought, said one who saw it, that, outside, all the Jacobites in England were gathered together; or, at least, that all London was Jacobite, so great was the crowd. And when the prisoners came forth, guarded by twelve warders, there was such an uproar with pushing and struggling to touch the hands —— yea, and even the skirts of their coats —— as never before was seen. Had this mob been as valiant for fighting as they were for shouting, there would have been no need for the shouting at all. But it is easier to shout than to fight. Of all the London friends of the Prince, there was but one who ventured his skin for the cause. This was good Mr. Budden, an upholsterer by trade. He, at the first news of the rising, hastened north to join the English force. One —— one only, out of all that multitude! Which proves that nothing is more contemptible than the opinion of the mob, which is all for this side to-day, and that to-morrow, and with no reason or fixed principle, or power to do anything for either side but mischief, with burning of bonfires, waylaying of honest men, and pillaging of houses. Strange it is to think that there have been States in which the baser sort were considered as much as their betters, and possessed equal rights! No doubt this fact proved the ruin of those States. When the lords had passed through their crowds of friends, and emptied their snuff-boxes among them a dozen times at least, they got back to their coaches, and so passed slowly along the streets to their prison.

They were carried on the 17th day of the month to the House of Lords to make their answers. As for that of Lord Derwentwater, he declared, first of all, that he was wholly unconcerned with any plot or conspiracy whatever, and that he joined in the rising of his friends and cousins hastily and without deliberate design. This was not believed by any, as Lady Cowper hath told me; yet was it most certainly true, as I will always maintain Plot there was, and a deep-laid, wide-spread plot covering the whole of the three kingdoms; yet was not my lord in it, as Tom always affirmed.

‘Yet,’ says Mr. Hilyard, ‘the plea was insufficient. It would have answered his purpose better if he had set forth carefully, and insisted upon them, the points which made so strongly in his favour, that had the Lords duly considered them they could not choose but recommend him for clemency. Videlicet: first, that he was by birth a close relation to the Prince, of the same faith, and by education his personal friend and companion; therefore, it was natural that he should desire his return. Next, that he was brought up abroad, and could not know the temper of the English people, so that he fell an easy prey to designing persons, and readily believed the statements of those who reported the nation as longing for the return of the Prince —— yea, and that so vehemently that they would rush with one consent to arms were an example once set —— for this, and nothing short of this, was represented to us by Captain Gascoigne and his friends. Next,’ continued Mr. Hilyard, ‘would I have counselled him to prove this plea by the fact that he drew with him, who might have enlisted a thousand men, no more than a few servants, and that, when further resistance would have led to bloodshed, he consented to a surrender. And, lastly, he should have concluded with a moving appeal for clemency in the name of youth, inexperience, ignorance, and his tender family. Had I written this appeal for him,’ said the honest man, wiping the tears which flowed down his face, ‘I would have engaged upon his side every heart of sensibility in the country, whereas now they are all asking each other in wonder what means this naked plea of unpremeditation. Alas! why —— why —— did no one ask my advice from the beginning?’

Mr. Hilyard was certainly one of those men who believe that without their own interference nothing is done well. London breeds such men in hundreds; they swarm, I am told, in every coffee-house; nay, in every mug-house they are found. They know the mistakes made by statesmen and by commanders; they are able to show, after the thing is over, what ought to have been done. But, as regards himself, I am certain that had he been consulted, there would have been, first, no rising at all; the Earl and my brother Tom would have surrendered to the warrants; if any campaign, then one differently conducted; if any surrender, then on better terms; if any trial, then with more successful issue. And from the many discourses I have held with this one scholar, I am sure that were our statesmen also scholars and persons versed in ancient history, the kingdoms of the world would be singularly preserved from external wars, civil tumults, and internal dissensions.

A few days later, the Commons demanded that judgment should be pronounced upon the rebel lords. It must be observed that there was no trial at all; they were impeached, examined, suffered to plead, and sentenced. After three weeks the Court of High Commission ordered that the prisoners should be brought before them. Lord Cowper was made Lord High Steward —— that is, President of the Court.

‘Alas! Dorothy,’ said her ladyship. ‘To think that they could find no one but my husband to sentence these unhappy lords, and two of them my own cousins! And the servants must all have new liveries!’

Though the gallant show was prepared only to sentence seven brave men to death, all London (except the poor women who wept for them) turned out to see it, including the ‘Jacks’ who had flung up their hats for the prisoners at the door of the Fountain. There was a great coach-procession to Westminster Hall, with gentlemen riding on horseback between the carriages, that of my Lord High Steward with six horses; and all the way so great a cheering for King George and the Protestant Succession, and such banging and beating of warming-pans, you would have thought the town gone mad. (All this was reported to me, because it is not to be supposed that such as I would join the ladies who sat in the windows and waved their handkerchiefs to the judges on this awful occasion.)

There was no noise or shouting, my informant told me, in Westminster Hall, the upper part of which was set with seats for the Peers, and the lower part left free to spectators, who crowded the great hall. Among the Peers sat the Prince of Wales; but he came not to judge so much as to look on, and showed in his face a singular concern as one after the other of the prisoners was brought forth.

‘As for us at the other end,’ said Mr. Hilyard, ‘I think there was not one who exulted, but all regarded with sorrow and compassion the destruction of so many great and noble houses. When all were in their places, the Earl of Derwentwater was summoned first. Truly it must be an awful moment to stand before the assembled Peers of the realm, and to read in their eyes nothing but condemnation; or, if pity, then condemnation as well. When my lord advanced to the bar, all rose and bowed low, as if to show that pity as well as the respect due to his rank; but he, for his part, fell upon his knees, where he remained until he was invited by the Lord High Steward to rise. Behind him walked the gentleman jailer, carrying an axe upon his shoulder, the edge thereof turned from the prisoner.

‘I declare and shall ever maintain,’ Mr. Hilyard continued, ‘that his lordship hath been struck with judicial blindness. For, when he was asked what reasons he could allege, if any, to stay his punishment, and another opportunity was offered to move the hearts of his judges, he lost it or threw it away. Had I been in his place, I might and should have lacked the dignity which naturally belongs to one of his high rank. Yet I think I should have found the eloquence and the wit to make a better plea for my life. The Lords would like —— nay, I saw their compassion in their eyes —— they would like nothing better than to save him; yet he will not help them. Why, oh! why did he not remind the House that he had been brought up, in the very Court of St. Germain’s, to believe that England was longing for the Prince to return? Why did he not show them that he could not know the temper of the country, and must needs believe what he was told?

‘Alas! he is no orator; he repeated only what he had said before, that he had no guilty knowledge of any plot —— further than this, that the friends of the Prince would gladly bring him back; that his joining the insurgents was unpremeditated; and that, in order to secure submission, he became a hostage. All that had been said before, and it availed nothing. I saw the faces of the Lords look at each other and grow hard. Why, what could they do when the prisoner did so little? So they put him back and called the other six, of whom Lord Wintoun alone obtained respite for further preparation of his defence.’

Mr. Hilyard then gave me, as well as he could recollect it, Lord Cowper’s speech on pronouncing the judgment of the Lords. This speech has been admired as a masterpiece of judicial oratory. I know not how that may be; it was pleasing, no doubt, for the Whigs to hear of the wickedness of rebellion; we are never tired of hearing those sins denounced which we never practise; but for the lords awaiting their sentence, methinks the discourse might have been more merciful if it had been shorter.

‘As for their reception of the sentence,’ said Mr. Hilyard, ‘no hero of antiquity could hear his condemnation pronounced with greater coolness and courage than was shown by all. Methought as Lord Derwentwater followed the jailer from the bar —— this time the edge of the axe turned towards him —— so marched the constant Regulus to his doom; with such a face, set with the courage which is neither insensibility nor braggadocio, did the great Socrates go to drink his poison. My heart burned within me to kneel and kiss his hand.’

‘When,’ I asked,‘must they suffer?’

‘I know not; they talk of a fortnight. It is thought that by this great example the Government will show their strength. If they were not strong, it is said, they would not dare to strike so determined a blow. As for the rest, the plain gentlemen, it is thought, even by the most revengeful, that they will be suffered to escape with their lives at least. But, Miss Dorothy, let us not trust to chance. Remember: the next trial, after Lord Wintoun’s case is concluded, must be his honour’s. Suffer me go talk with Mr. Pitts.’

‘Not yet, Mr. Hilyard. Give me yet a week or two.’

‘The clemency of a king,’ Mr. Hilyard went on presently, ‘is truly a great and generous thing when it is properly displayed. Towards criminals it should never be extended; but to rebels, as much as may be. For it is better to forgive and to release, thereby showing the strength which has no fear, than to strike hard and show the strength which can revenge. Methinks in this case the King might be fitly counselled to let all go pardoned, yet punished by their defeat and ignominy, and by the loss of rank and estates, provided they promise to sit down in peace for the rest of their lives. Yet, if I were to say these things in a coffee-house, I should be kicked out of one and cudgelled in another, because the mob must have revenge. The Prince’s friends themselves would rather see these men hanged with dignity than dismissed with contempt.’

Much more he added on the subject of that kind of mercy which brings the culprit into contempt, arguing that great punishments do not deter others, and that those noblemen who have seen the pomp attending an execution on Tower Hill, are not likely to be deterred from rebellion by its recollection. Nay, rather the contrary; for as in war everyone risks his life, if one must lose it, surely it is splendid to be the hero of so great a show. ‘Thus in the lower classes,’ he said, ‘who are mostly insensible to pain, the procession of the cart, with the shouts of the people, all eyes turned toward the sufferer, the cries to the driver to whip up his horse, and to him who wields the cat to let it fall lightly —— these things, I say, destroy the pain and substitute a kind of glory. Even in France, the wretch who goeth forth to have his limbs crushed upon the wheel bears his head erect and is of a bold countenance, because of the crowds who have come out to see him. Wherefore, for the better putting down of crime, let the whippings and the hangings be secret; and for the better putting down of treason, let there be no executions, but only loss of estate and contempt. When scholars become ministers and philosophers statesmen, the world shall be better ordered.’

Why did not Heaven make Mr. Hilyard the son of a noble house, since he could thus discourse so wisely?

I was told afterwards by Lady Cowper, from whom I learned at this time a great deal, that the unhappy Lord Derwentwater, being under examination by the Council, did himself much harm in his replies concerning a certain letter from the Prince. In this letter his Highness thanked him for the transmission of some moneys, said kind things concerning Colonel Thomas Radcliffe, and spoke hardly of Mr. Will Radcliffe, another of my lord’s uncles, who lived in Rome. The letter, which was intercepted I know not how, also furnished particulars concerning private persons, which enabled the Ministry to seize various papers of consequence. The prisoner seemed to the Council to trifle with them, treating the letter as an invention and a trick. Possibly he did this, out of the great kindness of his heart, in order to avoid implicating others; because no one that I know ever had the least doubt that he kept up a correspondence with the Prince, his old playfellow. I cannot understand how Lady Cowper (who took all her opinions from her husband) could speak of his answer as showing what she called ill manners and foolish cunning. Certainly a man must try to screen his friends, and the Council must have known on what terms the Prince and Lord Derwentwater had always been.

I have long considered and often debated with Mr. Hilyard the case of this trial, and the reasons why Lord Derwentwater and Lord Kenmure alone should have been executed, seeing that neither was worse than the other five, and that one of them was better (so to speak), because he might have brought into the field so many hundreds of men, and he brought none. Mr. Hilyard, who is now a confessed Whig and all for the Protestant Succession, agrees with me that King George at first intended to sacrifice the whole seven, with as many of the gentlemen as he decently could, in order to strike terror.

‘We must remember,’ he said, ‘that, until hangings began in Liverpool and Preston, not one of the people in the north, whether prisoners or at large, believed that the King would dare hang any, so great was their delusion as regards the strength of the cause. But when the King saw how many of his friends would be struck, and their affections alienated by the deaths of these great lords, he began to consider which among them had the fewest friends. These were the Lords Derwentwater and Kenmure. As regards the former, his title was of so recent date that he had few cousins among the Lords, and his education having been abroad, he had no friends at all among his Peers. Therefore, it was resolved at last (even Lord Nithsdale being reprieved on the very day of his escape) that these two alone should be done to death.’

I would say with regard to the astonishment of the North-country people at the sentences, and their stubborn belief in the cause, that the chief reason why so many held aloof, why those who came brought so few with them, and why the whole five counties of the north, Northumberland, Durham, Lancashire, Cumberland, and Westmoreland, did not all rise together, was that each man thought he should not be wanted, because his neighbours, who were sure to go, would suffice —— one had business or was ill, or newly married —— always some excuse; and when the enterprise went from good to bad, and from bad to worse, all the more reason for sitting still, for why throw good money after bad? Since I understood this, I have ceased from feeling indignation against those who ought to have come out, but who stayed at home.

Last updated Sunday, March 27, 2016 at 11:51