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."

The Lords having r