Chapter 20

[186] The following is a copy of the warrant, and affords a specimen, which may be novel to some readers, of the form in which such affairs are couched. The original is still preserved by the present Earl of Newburgh, the descendant of Charles Radcliffe. I am indebted to the courtesy of the Earl of Newburgh for permission to copy this document, and also for several particulars concerning the family of Radcliffe, which I have interwoven with this biography:--

"_James Stanhope, Esq., one of his Majesty's most Honourable Privy Council, and Principal Secretary of State._

"These are in his Majesty's name, to authorise and require you, taking a constable to your assistance, forthwith to make strict and diligent search in such places as you shall have notice, for the Right Honourable James, Earl of Derwentwater; and him having found, you are to seize and apprehend for suspicion of Treason, and to bring him, together with his papers, before me to be examined concerning the Premisses, and to be further dealt with according to law: for the due execution whereof, all Mayors, Sheriffs, Justices of the Peace, Constables, and all his Majesty's officers, Civil and Military, and loving subjects whom it may concern, are to be aiding and assisting to you as there shall be occasion. And for so doing, this shall be your warrant.

"Given at Whitehall the two-and-twentieth day of September, 1715.

"JAMES STANHOPE."

"To Richard Shorman, John Hutching, and John Turner, three of his Majesty's Messengers in Ordinary."

[187] His pension was raised for his services from fifty to eighty pounds per annum.--See Caledonian Mercury, 1722.

[188] Patten, p. 19.

[189] Hutchinson's History of Northumberland, vol. i. p. 131.

[190] State Papers. Domestic, No. 4, 1716.

[191] Life of Charles Radcliffe, p. 15.

[192] Patten, p. 31.

[193] Patten. Smollett.

[194] Parliamentary History, 2 Geo. I. vol. vii. p. 269.

[195] Patten, p. 47.

[196] Id. p. 65.

[197] An instance of this spirit is related by Lord Sunderland in the case of a Mr. Crisp, a Lancashire gentleman, who acted with such zeal for the Government during the Rebellion, that he was never able to live in his native country afterwards.--Lord Mahon's History of England since the Peace of Utrecht, vol. i. p. 253.

[198] Lord Mahon, vol. i. p. 248.

[199] Patten, p. 79.

[200] Letter from a Scots Prisoner.--See Weekly Journal, or British Gazette, for 1716.

[201] Weekly Journal, p. 354.

[202] Parliamentary History, p. 269.

[203] Life of Charles Radcliffe, p. 23.

[204] Patten.

[205] Patten, p. 96.

[206] Patten, p. 103.

[207] Weekly Journal.

[208] Patten.

[209] Patten.

[210] Caledonian Mercury for 1716.

[211] Earls of Derwentwater, Nithisdale, Carnwath, and Wintoun; Viscount Kenmure, and Lords Widdrington and Nairn.

[212] State Trials, vol. xv. p. 762.

[213] Parliamentary History, vol. vii. p. 269.

[214] State Trials.

[215] Caledonian Mercury for 1716.

[216] Beatson's Political Index.

[217] Douglas's Peerage of Scotland.

[218] State Trials, vol. xv. p. 802.

[219] Lord Mahon's History, vol. i. p. 291.

[220] Id.

[221] State Papers, 1716, No. 4; now, for the first time, printed.

[222] Or rather, a piece of red cloth, which is still preserved at Hassop, the seat of the Earl of Newburgh, the marks of blood being still visible.

[223] From a tradition current in the descendants of this family.

[224] Hogg's Jacobite Relics, vol. i. p. 31.

[225] See Caledonian Mercury, 1723.

THE MASTER OF SINCLAIR.

John Sinclair, called, in compliance with the custom of Scotland in regard to the eldest sons of Barons, the Master of Sinclair, was descended from the ancient family of Saint Clare, in France, on whom lands were bestowed by Alexander the Third of Scotland. In early times, the titles of Earls of Orkney and Caithness had been given to the first settlers of the Saint Clares; and the possession of the islands of Orkney and Shetland had been added to certain royal donations, by a marriage with an heiress of the sirname of Speire. One of the Sinclairs had even borne the dignity of Prince of Orkney; but this distinction was lost by an improvident member of the house of Sinclair, called William the Waster; and the prosperity of his descendants was due only to the favour of James the Sixth, who created Henry Sinclair, of Dysart in Fife, a Baron.

The family continued in honour and estimation, until the subject of this memoir, John, brought upon it disgrace, and incurred to himself lasting self-reproach.

The Master of Sinclair was the eldest son of Henry, seventh Lord Sinclair, and the representative, therefore, of an honourable family. But it was his fate to forfeit his birthright, not so much by his adherence to an ill-fated cause, as by the violence and brutality of his own temper and conduct.

He was, at an early age, engaged in the military profession, and bore the commission of Captain-Lieutenant in Preston's regiment under the great Marlborough. At the battle of Wynendale, fought on the twenty-eighth of September, 1708, the events which stamped the future character of the Master of Sinclair's destiny occurred.

Two brothers of the name of Schaw, Scotchmen, of an ancient race, and ancestors, collaterally, of the present family of Shaw-Stewart of Renfrew, had commissions also in Preston's regiment. These unfortunate young men were of the chief family of the Schaws, or Sauchie, who had flourished since the reign of Robert the Second.

By that singular coincidence which sometimes occurs, and which seems to stamp certain races with misfortune, the Schaws had already been nearly exterminated in feudal times by the violence of a neighbouring clan, the Montgomeries of Skellmorlie; and had been preserved from total destruction by what seemed to human comprehension to be the merest chance. By one of the Montgomeries, the Tower of Greenock was invaded and taken, and the Laird of Schaw and four or five of his sons were put to death. One child, then in his cradle, alone escaped, and grew up to manhood, with the resolution to avenge his father and his brothers rankling at his heart. Accordingly, he collected his friends and dependants, and invested, during a period of repose and security, the house of his enemy. Montgomery, finding his castle attacked, stood forth on the battlements, and, after demanding a parley with the besieger, "Are you not," he cried out, "an ungrateful man to come hither with bow and brand to take the life of the man who made you young laird and auld laird in the same day?" Young Schaw, struck by the argument, drew off his forces, and left the castle of Skellmorlie standing, and its inmates uninjured.

The family of Schaw were zealous Whigs, the father of the two young officers in Preston's regiment having raised a regiment at the time of the Revolution, without any other expense to the Government than that of sergeants and drummers.

The eldest brother, Sir John Schaw, had been an active promoter of the Union; and, upon a threatened invasion of the French, and a consequent alarm of the Jacobites, Sir John had offered to join the army with five or six hundred of his followers. This decided political bias may, perhaps, in some measure, account for the disposition to affront on the side of Sinclair, and the quickness to resent on the other hand, which was shown between the parties.

During the battle of Wynendale, in the midst of the fire, it appeared, in evidence afterwards taken, that Ensign Hugh Schaw, the first of the victims to the Master of Sinclair's wrath, was heard to call out to the Master "to stand upright;" it was afterwards publicly stated by Ensign Hugh Schaw, that he had done so upon seeing Sinclair bow himself down to the ground for a considerable time. This alleged act of cowardice on the part of Sinclair appears, however, not to have really taken place; but it was made the groundwork of a calumnious imputation. It must, however, be acknowledged, that there was nothing in the subsequent conduct of the Master of Sinclair, as far as the battle of Sherriff Muir was concerned, to raise his character as a man of personal bravery.

Upon hearing of this injurious report, Sinclair sent a challenge to Ensign Schaw. It was dispatched through the medium of a brother officer, to whom the Ensign replied, at first, that he had just heard of his brother George's being wounded before Lisle, and that it was of far greater importance that he should go to him than accept the Master of Sinclair's challenge; besides, the young man added, that since his last misfortune, probably a fatal duel, he had pledged himself neither to receive nor to give a challenge. Should a rencontre happen, he would defend himself as he could; that, after all, he had said nothing but what he could prove. Upon these words being repeated to the Master of Sinclair, he fell into a violent passion, and swore that he would not give Schaw fair play; that his honour was concerned. The second whom he had employed then threatened to take the challenge to Colonel Preston; upon which the Master told him "he was a rascal if he did it."

On the following day, the Master met Ensign Schaw, and taking a stick from underneath his coat, struck the Ensign two blows over the head with it. They both drew, and fought with such fury that the Master's sword was broken, and that of the Ensign bent; upon which Sinclair retired behind a sentinel, desiring him "to keep off the Ensign, as his sword was broken." Schaw then said, "You know I am more of a gentleman than to pursue you when your sword is broken." But the young soldier Schaw had at this time received a mortal wound, of which he died; but not until after the verdict of the court-martial ultimately held on Sinclair.

In the course of three days a second fatal rencontre succeeded this deadly contest; and another brother, Captain Alexander Schaw, fell a victim to the vindictive and brutal notions at that period considered in the army to constitute a code of honour.

Captain Schaw was naturally indignant at the death of his brother; he expressed his anger openly, and said, that the Master of Sinclair had "paper in his breast," against which his brother's sword was bent; and that he had received the fatal wound after his sword had thus become useless. The Master of Sinclair having heard of these assertions, resolved to avenge himself for these imputations cast upon him. On the thirteenth of September, as Captain Schaw was riding at the head of Major How's regiment, the sound of his own name, repeated twice, announced the approach of the hated Sinclair. Captain Schaw turned, and inquired of the Master what he wanted. Sinclair replied, by asking him to go to the front, as he wanted to speak to him; to which Captain Schaw rejoined, that he might speak to him there. "Yes," returned Sinclair, "but if I fire at you here, I may shoot some other body." Captain Schaw answered, that he might fire at him if he pleased, he bore him no ill-will. "If you will not go to the front," returned Sinclair, "beg my pardon." This was refused, some words of further aggravation ensued; then the Master of Sinclair drew his pistol and fired at Schaw. The Captain was also preparing to fire; his hand was in the act of drawing his pistol when it was for ever checked, whether employed for good or evil; the aim of Sinclair was certain, and Schaw fell dead from his horse. Sinclair, without waiting to inquire how far mortal might be the wound he had inflicted, rode away.

Thus perished two young officers, described by their brother, Sir John Schaw, as "very gallant gentlemen." To complete the tragedy, a third, wounded at Lisle, was brought to the camp at Wynendale, and expired in the same room with his brother, Ensign Schaw, partly of his wounds, partly of grief for his brother's death; so that the offender, as the surviving brother remarked, "was not wholly innocent even of his blood:" yet both these rencontres, to adopt the mild term employed by Sir Walter Scott, were viewed in a very lenient manner by the officers of the court-martial which afterwards sat upon the case, and even by Marlborough himself. The Master of Sinclair speaks of them in his narrative in terms which imply that one, whose hands were so deeply dyed in crime, regarded himself as an injured man; there can scarcely be a better exemplification of the deceitfulness of the heart than such a representation.

On the seventeenth of October, 1708, a court-martial upon the Master of Sinclair was held at Ronsales by the command of the Duke of Marlborough. Upon the first charge, that of challenging Ensign Hugh Schaw (in breach of the twenty-eighth article of war), Sinclair was acquitted, the court being of opinion that the challenge was not proved.

Of the second accusation, that of killing Captain Alexander Schaw, the Master of Sinclair was found guilty, and sentenced to suffer death. He was, however, recommended to the mercy of the Duke of Marlborough, in consideration of the provocation which he had received,--the prisoner having declared that, not only on that occasion, but upon several, and in different regiments, Captain Schaw had defamed him; that he was forced to do what he did, and that he had done it with reluctance.

The case was, however, afterwards referred to the Attorney General and the Solicitor General, who gave it their opinion that Sinclair was guilty of murder; for had the trial taken place in England before a common jury, the judge must have directed the jury to find him guilty of murder, no provocation whatever being sufficient to excuse malice, or to make the offence of killing less than murder, when it is committed with premeditation. How far the provocation was to be considered as a ground of mercy, these legal functionaries declined to judge.

Upon the publication of this sentence, Sir John Schaw addressed a petition to Queen Anne, praying for justice on the murderer of his brothers, and appealing to his Sovereign against the extraordinary recommendation of the court to mercy. He also wrote urgent letters to the Earl of Stair and the Duke of Argyle, praying for their intercession with the Duke of Marlborough that the murderer of his brothers might be punished. He next wrote to the Duke of Marlborough himself. The following letters show the earnestness of the pleader, and prove the caution and subtlety of the General. Some deep political motive lay beneath the mercy shown to Sinclair, otherwise it seems impossible to account for the conduct of so great a disciplinarian as Marlborough in this affair.

SIR JOHN SCHAW TO THE DUKE OF MARLBOROUGH.

"May it pleas your Grace,

"Amongst the misfortunes that attend the murthers of my two brothers, I thinck it's one to be constrain'd to appear importunate with your Grace. The case, by the depositions of the witnesses, being in the opinion of the learn'd lawyers of the most atrocius nature, and not pardonable by the law of the country whereof we are subjects, and such as indispensable requires my utmost applications for redress, I cannot forbear the repeating of my submissive prayers to your Grace for speedy justice. The blood of my brothers, the tyes of nature, and the sentiments of friendship, would render the least negligence on my part inexcusable with the world and with my own conscience.

"I should deliver my petition personally, rather than venture to give your Grace the trouble of letters, were I not sufficiently assured of your Grace's justice, and at the same time willing to gratifie my wellwisshers desires in staying here. Hoping your Grace wil, with a condescending compassion to my present circumstances, favourably admit the bearer, Capt. James Stuart, in Coll. M'Carty's regiment, who is my faithfull friend and near relation, to deliver this letter, and represent my case, that the whole matter may be sett in a true light for a finall decision, in the meantime, I remain, with a profound respect, my Lord, Your Grace's most humble, etc."

"To the Duke of Marlborough, London, the 29th November, 1708."

THE DUKE OF MARLBOROUGH TO SIR JOHN SCHAW.[226]

"Sir,

"Captain Stewart has delivered me your letter of the twenty-first of November; I had before, from the Secretary at Warr, the opinion of the Attorney and Sollicitor General upon the proceedings of the court-martiall, with the copie of the petition you had presented to the Queen, but no positive directions from hir Majesty, which I should have been very glad to have received, being without it under very great uneasiness, as Captain Steward will tell you; however, you may be sure I shall have all the regard you can desire for your just resentment against Mr. Sinclair, being truly, Sir,

"Your most humble servant, (_Sic subscribitur_) "MARLBOROUGH."

"Copie letter Duke of Marlborrough to Sir John Schaw, dated at the Camp at Melle, the 16th December, 1708."

After this correspondence, the unhappy brother of the two young officers had every reason to conclude that the delinquent would very soon be brought to justice. He wrote to Mr. Cardonnel, secretary to the Duke of Marlborough, in grateful terms for the kind intercession employed for him. What was afterwards his astonishment to find that Sinclair was allowed to serve in the British army in the sieges of Lisle and Ghent, and eventually received in the Prussian service! The evident favour of the Duke is fully shown in the following passage from the Master of Sinclair's narrative:

"I was obliged to quit [the army] for two misfortunes which happened in a very short time, one after the other, notwithstanding of the court-marshall's recommending me to the General, his Grace the Duke of Marlborough's mercy, which was always looked on as equal to a pardon, and which I can aver was never refused to any one but myself. Nor was his allowing me to serve at the sieges of Lisle and Ghent precedented on my giving my word of honour to return to arrest after these sieges were over, which I did and continued (prisoner) till his Grace the Duke of Marlborough sent his repeated orders to make my escape, which I disobeyed twice; but at last being encouraged by his promise to recommend me to any prince that I pleased, for these were his words, I went off, and procured his recommendation to the King of Prussia, from whose service, which I may say is of the strictest, I came back to serve in the Low Countries, where I continued until the end of the war, at which time her Majesty Queen Anne having, as it is said, turned Tory, vouchsafed me her pardon."

These marks of indulgence to Sinclair fell heavily upon the heart of him who still mourned two promising brothers, sent to an untimely grave by brutal revenge. The following letter from Sir John Schaw is beautifully and touchingly expressed.[227] What effect it produced upon the great but not faultless man to whom it was addressed, can only be known by the impunity with which Sinclair, his hands being imbued in the blood of his countrymen, continued in the Prussian army, and afterwards returned to Scotland.

"It is with very great regrate that I give your Grace any further trouble on account of the melancholy story of my two brothers, who had the misfortune to be murthered in the space of three dayes by Lieutenant Sinclair, then in the regiment of Prestoun, in the year 1708. Your Grace was at the paines to be informed of the whole case, and the murtherer, being a man of quality, had many to intercede for him; your justice did overcome all other considerations and indeed nothing could be more worthie of the great character your Grace has, and the glorious name you must leave to posterity, than the punishment of so cruel and bloodie a fact; but the criminal escaped, and the sentence of death pronounced by the court-martial, and confirmed by your Grace, was not executed; and I, having done all I could to bring the murtherer of my unfortunate brothers to condign punishment, was satisfied to pursue him no further, tho' the atrocity of the crime committed against the law of nations would have affoarded me ground to have prosecuted him in any country where he could have been found. But to my surprize and sorrow, I have of late been informed that Lieutenant Sinclair has added to the repeated murthers the impudence of returning, an officer in a Prussian regiment, to the army, where he was condemn'd, as it were to affront justice, and glory in what he has done. I am wel persuaded, that if his guilt had been known to the King of Prussia or his Generals, his Majesty would not have suffered so odious ane offender to be entertained in his service. Nor can the Generals or Ministers of Prussia have anything to plead, why a sentence pronounced by a British court-martial against one of hir Majesty's subjects, and confirmed by your excellency her Generall should not now be executed. I am confident your Grace will not sufferr publick justice to be insulted in that affair, and I doe in the most humble and earnest manner begg that your Grace would cause apprehend the murtherer, that justice may be done upon him for his barbarous and bloodie crimes. I had about two years ago four brothers, of whom I may without vanity say, they were very gallant gentlemen; two were murthered by Lieutenant Sinclair; the third died in the roome with one of these, partly of his wounds received before Lille, and pairtly out of griefe for his brothers' misfortunes, so that the offender is not innocent even of his blood; the fourth was killed at the battle of Mons. The blood of these that were barbarously slain, call for vengeance; the law of God and nature requires it. They had, and I in their name have a claime, in a particular manner, to your Grace's justice, they having been all four under your Grace's command; forgive it to my natural affection, if I use arguments with your Grace to do an act of justice when the whole world, and I in particular, have such proofs of the greatness of your minde and virtue, I shall only add my most sincere and humble acknowledgement of your Grace's justice and dispatch in the melancholie affair, of which I shall ever retain the most gratefull sense; and remain under the strictest tyes of dutie, with the most profound respect, my Lord, your Grace's most humble, most obedient, obliged, and faithful servant," &c.

With this letter, and some memorials of Sir John Schaw's public service, end all known appeals for justice on the murderer. But conscience avenged the crime. Many years afterwards, when living in opulence upon his patrimonial estate at Dysart in Fife, the Master received from an humble individual a bitter, though involuntary reproach. When preparing to cross the Frith, he stopped at an inn in order to engage a running footman to attend him. Detested by his neighbours, and ever in dread of the Schaws, Sinclair preserved a sort of incognito. A youth was presented for his approval. The Master inquired of the young candidate what proof he could give of his activity, on which this remarkable reply was given: "Sir, I ran beside the Master of Sinclair's horse when he rode post from the English camp to escape the death for which he was condemned for the murder of the two brothers." "The Master," adds Sir Walter Scott, "much shocked, was nearly taken ill on the spot."[228]