ELPHINSTONE, John (1652-1736)

From the the late sixteenth century the Elphinstones were a family of prominent lawyers and government officials, with a strong Presbyterian background and a penchant for getting themselves into trouble. The first holder of the title, James Elphinstone, was sentenced to be executed–the sentence was not carried out–for (reputedly) forging a letter from James VI of Scotland to the Pope. His son the 2nd Lord Balmerino was likewise sentenced to death (again not carried out) in 1634 as a result of his opposition to the religious policies of Charles I. He later served as lord high commissioner of the Scottish parliament in 1641 and an extraordinary lord of session from 1641 to 1649. This ancestor’s political activities on behalf of the Covenanters had run the family so far into debt that his son the 3rd Lord Balmerino was forced to sell most of the estate. In these embarrassed circumstances the young Master of Balmerino, as the 3rd Lord’s heir John was styled, continued in the traditional family profession of the law, although unfortunately for a man who was so revered by his contemporaries for his legal knowledge, it has been impossible to determine exactly where he acquired his education. He was briefly a Scottish privy councillor under James VII, but his opposition to the claim of William of Orange to the throne quickly ensured his dismissal from that post and marked his break from family tradition, for he was consistently throughout his career to act as a committed Episcopalian and Stuart loyalist.

Elphinstone inherited his title as 4th Lord upon his father’s death on 10 June 1704 and shortly afterwards took his seat in the Scottish parliament, having, according to George Lockhart^‡ of Carnwath, been ‘persuaded to it, merely to give his assistance to prevent the court’s designs of settling the succession of the crown in the family of Hanover’. Indeed, he was one of the few Scottish politicians to win the unalloyed admiration of Lockhart, who praised the constancy of his patriotism and his loyalty to the exiled Stuarts. According to Lockhart, he was ‘a man of excellent parts, improved by great reading, being perhaps one of the best lawyers in the kingdom and very expert in the knowledge of the Scots constitution’. Lockhart Pprs. i. 139.

The Union and its aftermath, 1704-10

From his first appearance in the Scottish parliament Balmerino was opposed both to the Hanoverian succession and to a union with England. He was in regular contact with Jacobite agents, who regarded him as one of the Pretender’s ‘principal friends in Scotland’ and as ‘a very bold, loyal man, and of good parts, is very significant in Parliament, and always with the country party’. Macpherson, Orig. Pprs. i. 668, ii. 9; Col. Hooke’s Negotiations in Scotland in 1707 (1760), 174. Despite the fervent entreaties of his cousin, Hugh Campbell, 3rd earl of Loudoun [S], on behalf of the Scottish court party, he could not be persuaded to support the Union. When the Scottish parliament was considering the treaty, he maintained a dogged opposition, often acting with James Hamilton, 4th duke of Hamilton [S], to disrupt proceedings. C.A. Whatley, Scots and Union, 297; P.W.J. Riley, Union, 288, 332; NLS, Advocates’ mss, Wodrow pprs. letters Quarto, 4, f. 79. Resistance to the increasing pressure for union brought him some diverse colleagues, not only Hamilton himself, with whom the cavaliers co-operated warily, but also Episcopalians such as John Murray, duke of Atholl [S], and William Keith, 8th Earl Marischal [S], as well as the ardent Presbyterian patriot Andrew Fletcher of Saltoun, whom Balmerino joined in defending Scottish constitutional rights. HMC Mar and Kellie, i. 290; Lockhart Letters, 37; NLS, Wodrow letters Quarto, 4, f. 36; Scot. Hist. Soc. Misc. xii. 124, 130, 151. He joined Atholl, Hamilton, Fletcher of Saltoun and William Livingston, 3rd Viscount Kilsyth [S], in justifying the anti-union disturbances in Edinburgh in October 1706 as representing the ‘true spirit of the country’. HMC Mar and Kellie, i. 300. In late December 1706 he attended a meeting convened by Hamilton which agreed ‘to proceed to a national address to her majesty against an incorporating union’, and took up the cause of Presbyterians who, it was feared, would be forced after the Union to take a sacramental test to qualify for office. Lockhart Letters, 37. The irony of Balmerino’s stance was acknowledged as ‘a perfect comedy to see … Balmerino etc. whose hearts loathe at the sight of a Presbyterian, using all their rhetoric in favour of … true blue Presbyterians’. Scot. Cath. Archives, Blairs Coll. mss BL 2/140/5. But he also argued unsuccessfully that the test ‘should be taken off all Scotsmen and they have free access to places of trust in Britain without prostituting their consciences and acting contrary to their religion’. NLS, Wodrow letters Quarto, 4, f. 138.

In March 1708 Balmerino was arrested and imprisoned in Edinburgh Castle on suspicion of complicity in the unsuccessful attempt to raise a rebellion in Scotland, after a footman belonging to Atholl had been intercepted with a packet of incriminating letters addressed to Balmerino and others. NAS, GD 26/7/128, GD 220/5/152; Luttrell, Brief Relation, vi. 291. However, owing to his willingness to assist the Scottish court party in the forthcoming peers’ election, he was not conveyed to London as a prisoner. David Boyle, earl of Glasgow [S], assured John Erskine, 22nd earl of Mar [S], that Balmerino and George Gordon, earl of Aberdeen [S], ‘have been very friendly and have acted a good part … every person is convinced that neither of those lords is in the least … guilty of any bad practices against the government.’ He successfully urged Mar to effect Balmerino’s bail and release from confinement, for ‘if we cannot serve them they have no great reason to serve us’. HMC Mar and Kellie, i. 437–8; NAS, GD 26/7/142. Balmerino was also contacted by Hamilton and his new allies the Squadrone, who offered to put him in their combined election list, but he would have nothing to do with the Squadrone and turned the offer down, expressing surprise that Hamilton had stooped to such opportunism as allying himself with that group. NAS, GD 112/39/217/9, 19, 31. He qualified himself and attended the election of 17 June 1708 in person, where he was included among the court nominations, but did not secure a seat, receiving only 42 votes. His own choice of representative peers contained all the court’s principal candidates. NAS, GD 112/39/216/19; NLS, ms 1026, ff. 23, 32, 39-40.

In the run-up to the election of November 1710, after considering ‘some of the particulars to be adjusted in relation to the elections in Scotland’, Mar recommended to Robert Harley, later earl of Oxford, that Balmerino be appointed general of the Scottish Mint, with an annual salary of £300, ‘and the sooner he now get it the better. He is a man can be very useful in the elections and will be chosen himself, and his getting this will save a pretty considerable pension the queen designed him’. HMC Portland, x. 329-30, 347; NLS, ms 7021, f. 241; Wodrow, Analecta, i. 295. Balmerino’s support was also sought by James Ogilvy, earl of Seafield [S] (later 4th earl of Findlater [S]), who had not yet shrugged off his allegiance to the outgoing ministry, and hoped to secure an army commission for one of Balmerino’s sons to bring him over. Add. 61136, ff. 159-60. Hamilton too was courting him. Balmerino recounted that the duke ‘swore if I would come into his list he should answer for it upon his life that I should carry it’. However, office in the Mint carried more weight, and Balmerino was included in the court list at the election and comfortably elected. Scot. Hist. Soc. Misc. xii. 122; D. Szechi, Jacobitism and Tory Pols. 204–5; NLS, ms 1026, ff. 62, 64–65. In the list of the new representative peers annotated by Richard Dongworth, the duchess of Buccleuch’s chaplain, Balmerino was described as an ‘Episcopal Tory’, with an income estimated of only £1,000 p.a., making him the poorest of the peers elected to that Parliament. SHR, lx. 63.

Representative peer, 1710-13

Balmerino’s parliamentary career over the two Parliaments of 1710 and 1713 is documented in copious detail in his frequent letters to his friend in Scotland, the Jacobite scholar Henry Maule. Scot. Hist. Soc. Misc. xii. 99-168. He first took his seat in the House on 27 Nov. 1710, the second day of the new Parliament. In his first session of 1710-11, of whose sittings he attended 84 per cent, he made important new acquaintances and alliances. Prominent among his English colleagues were William Nicolson, bishop of Carlisle, to whom he had been recommended (by James Greenshields) as ‘truly Episcopal’, and the Tory grandee Laurence Hyde, earl of Rochester, for whom he quickly conceived an exaggerated admiration–‘in my opinion the finest gentleman that ever I knew; so much probity and firmness’. Nicolson, London Diaries, 520; Scot. Hist. Soc. Misc. xii. 125. Less exalted among his English acquaintances were William Ferdinand Carey, 8th Baron Hunsdon (by origins a Dutchman), and Charles Bennet, 2nd Baron Ossulston (later earl of Tankerville). Ossulston’s social diary and Balmerino’s own letters to Maule suggest that Balmerino’s most frequent social and convivial companions were fellow Scots, largely Episcopal Tories, and many with strong Jacobite leanings, such as Marischal, Kilsyth, and William Johnston, marquess of Annandale [S]. SHR, lxxi. 114-15, 124-8; TNA, C 104/113 pt 2 (Ossulston’s Diary). On 12 Apr. 1711 Balmerino ended a letter to Henry Maule by adding, ‘When this is sealed I am going to take a turn in the Mall and after that to meet Annandale and Marischal at the British Coffee House; the truth is I have been too long sober’. He was able to report on 19 May 1711 that the previous evening he had dined in a tavern with his friends Hamilton, Kilsyth and Marischal, while on 26 Jan. 1712 he wrote how he dined at Pontack’s with Annandale, Ossulston, Hunsdon, Archibald Primrose, earl of Rosebery [S], and Henry Herbert, 2nd Baron Herbert of Chirbury. Scot. Hist. Soc. Misc. xii. 130, 131, 133, 147.

Balmerino certainly acted as an Episcopal Tory in the House. Warned in late 1710 that there would soon be ‘warm work on the affairs of Spain’, on 9 and 12 Jan. 1711 he voted to censure the previous Whig ministers over the conduct of the war in Spain, and to vindicate the damning account of the councils of war held there submitted by Charles Mordaunt, 3rd earl of Peterborough. Nicolson, London Diaries, 525; Haddington mss, Mellerstain Letters, 3, George Baillie to his wife, 11, 13 Jan. 1711. On 5 Feb. 1711 he and his friends Annandale, Marischal and Kilsyth, along with his nephew (by his first wife) Alexander Montgomerie, 9th earl of Eglinton, were the five Scottish peers who subscribed to the dissent from the House’s rejection of the bill to repeal the General Naturalization Act. Most notably Balmerino threw himself whole-heartedly into the cause of the Episcopalian minister James Greenshields who had been sentenced by the Edinburgh magistrates to imprisonment for using the liturgy of the Church of England. From early December 1710 Balmerino and Eglinton (both dubbed ‘truly Episcopal’ by Greenshields) were consulting with bishop Nicolson of Carlisle and Arthur Annesley, 5th earl of Anglesey, among others, about preparing Greenshield’s case. Scot. Hist. Soc. Misc. xii. 124; Nicolson, London Diaries, 520, 523, 525-6, 550. Greenshield’s appeal came before the House on 1 Mar. 1711, when Balmerino argued

violently against the sentence of the magistrates and lords of session, and said that learned bench had suffered in this case their affection to overcome their reason, and asserted that the supremacy was not taken away in Scotland, and that he knew that since the Revolution things ecclesiastical had been cognised by the Privy Council. NLS, Wodrow letters Quarto, 4, ff. 148, 153-4; NAS, GD 124/15/1020/13.

The House rejected a delaying motion to adjourn and voted to reverse the sentence. Triumphant, Balmerino then wrote to the bishop of Edinburgh Alexander Rose, the most senior bishop of the Scottish Episcopal Church at that time (after the earlier death of Balmerino’s own father-in-law archbishop Arthur Rose in 1704) to tell him that leading English Tories were intent on sending Greenshields back to Edinburgh. This was the last thing Rose wanted, fearing that the minister’s presence would prejudice the Episcopal Church by stirring up public hostility. NAS, CH 12/12/1821. Balmerino conveyed to Harley the archbishop’s view that the arrival of Greenshields in Edinburgh would not be for the benefit of the Episcopal clergy, for ‘they are living very quietly and I am sure they do not want him here, and on the other hand the Presbyterians would look upon it as insulting them if he should settle here.’ Instead he recommended that Greenshields be given a benefice in England, ‘which is both just in itself and will effectually put an end to his projects’. HMC Portland, v. 81. Balmerino took a similar view when Scottish high-flyers such as George Lockhart proposed the introduction of bills to provide a legal toleration for Episcopalians and to restore lay patronages in Scotland. Balmerino was sympathetic to the measures in principle but warned that, after the success of the Greenshields case, ‘our courtiers are for no more at this time, and I am heartily of that mind’. He preferred ‘to have patience and wait till they should see how matters was [sic] carried in Scotland after the case of Greenshields’. He knew Maule would disagree with this caution, but refused to commit to paper his reasons for deferring, preferring instead to discuss the matter with Maule and the bishop of Edinburgh when he was next in Scotland. Balmerino was sanguine about the eventual success of such Episcopalian measures: ‘I have no doubt but next session we will have things in our hands as much as now. Nay, a Whig parliament (which I hope never to see) would not refuse us them’. Scot. Hist. Soc. Misc. xii. 127-8; Szechi, Jacobitism and Tory Politics, 87.

Balmerino also took a prominent part in the deliberations on the bill to prevent the export of flax and linen yarn from Scotland to ‘foreign parts’. In the debate in the committee of the whole House on 1 June 1711 he spoke ‘at some length’ on three different occasions, answering the arguments of both Heneage Finch, Baron Guernsey (later earl of Aylesford), and John Somers, Baron Somers, and, as he felt, served ‘to put them all by the ears’. He also acted as a teller for the not contents, against Francis Seymour Conway, Baron Conway, on the question whether a clause exempting Irish (but not Scottish) linen from export duties should be made part of the bill. During the debate Charles Spencer, 3rd earl of Sunderland, had made provocative and insulting remarks stating his preference for the Irish over the Scots, and when Balmerino, acting as teller, held the staff above Sunderland’s head to record his vote, he told him ‘that he deserved that I should lay it on’. Scot. Hist. Soc. Misc. xii. 135-7. The proceedings on the linen bill raised broader issues of governance, and when a Jacobite acquaintance suggested a motion to dissolve the Union, Balmerino provided Maule with a lengthy statement of his own views:

I who was always against the Union would never be for a dissolution of it, except the queen and her ministers were first for it, and especially the Whig lords who made it. But for the Protestant succession he would easily get the word of honour of the Scots sixteen to go into it (if it were to come to that); nay, the Union might be dissolved on that condition and no otherwise. Only I said we must have some abatement of the equivalent with which the Whigs ... had bribed us. Also we must have freedom of trade to America ... But for me, except the present ministry agree to this I will hold by the Union to continue. But if the queen and they agree to it I assure him that all Scotland will put on bonfires and dance about them. Ibid. 139.

With such evident loyalty to the ministry of Harley, created earl of Oxford in May 1711, the impoverished Balmerino felt he could expect some tokens of gratitude after the prorogation of 12 June. In November, in the days preceding the following session, Balmerino exchanged his office in the Mint for a more lucrative position in the newly constituted commission of chamberlainry and trade, although he was not formally replaced as general of the Mint until November 1712. At this time he was also pressing for his younger son to be made a lord of session, against the pretensions of a rival candidate put forward by Hamilton, and signed an address to the queen calling for the law prohibiting the import of Irish goods to be enforced. NAS, GD 112/39/250/1; HMC Portland, v. 96; P.W.J. Riley, Eng. Mins. and Scotland, 172. Oxford’s colleague and kinsman Thomas Hay, 7th earl of Kinnoull [S], assured him that Balmerino was unlikely to give trouble when Parliament reassembled, as he ‘is an honest man and always pleased’. HMC Portland, v. 97.

This assessment was quickly belied by Balmerino’s reaction to the the great crisis in Anglo-Scottish relations that marked the session of 1711-12, the decision of the House that the duke of Hamilton could not sit in the House of Lords by virtue of his British title of duke of Brandon. As early as June 1711 Balmerino had relayed to Maule, with some alarm, the news of the growing opposition among English peers of both parties to Hamilton’s claim, at a time when it appeared to have been common knowledge that Hamilton would be created duke of Brandon, although the patent did not actually pass the seals until 10 September. Scot. Hist. Soc. Misc. xii. 138–9. On 3 Dec., four days before the new session opened, Balmerino entrusted his proxy with Loudoun, most likely in preparation for this looming confrontation. He managed to arrive in the House for the first time that session (thus vacating his proxy) on 20 Dec., the day when the Hamilton case came to a head. In the debate he declared that sitting and voting in Parliament was a fundamental right of the peers of Scotland, but had been denied as a result of the 23rd article of the Treaty of Union, which allowed only the 16 representative peers to sit. The article not only entrenched upon the rights of the Scottish peers, but also the royal prerogative, something that had neither been intended by the Scots commissioners who negotiated the treaty, nor by the queen. He voted with the rest of the Scottish representative peers in the minority against the motion to bar Hamilton from sitting and signed the protest against the resolution. Ibid. 144-5; NAS, GD 220/5/256/24. The memorial drawn up by Scottish peers on 1 Jan. 1712 requesting the queen to redress the injustice reiterated many of Balmerino’s arguments and he duly subscribed it. Unlike many of his fellow Scottish peers he appears to have been prepared to give the queen an opportunity to honour the pledge given in her answer, that she was ‘firmly resolved to support the Union of the two kingdoms and ... I will consider of the most reasonable way to procure you satisfaction’. HMC Laing, ii. 164-7. At a meeting at Hamilton’s house on 17 Jan. Balmerino did not endorse Annandale’s demand for an immediate Scottish boycott of the House, ‘because I wish sincerely good success to the queen’s designs of peace for the happiness of her people’, though he admitted that he did not expect ‘any redress from the court’. Scot. Hist. Soc. Misc. xii. 141. He did not accept the court’s proposed remedy when it was announced – to replace the 16 representative peers with 32 peers sitting by hereditary right – and at another meeting of Scottish peers refused to listen to arguments in its favour: ‘I cut them short and said I looked upon the whole project as most unjust’. Instead, he urged the Scots to declare their determination to uphold their prerogative and, if necessary, summon the Estates of Scotland, because only there could the Union be amended. But the others did not agree with him, and, realizing ‘that no good was to be done’, he announced that ‘I should go no more to the House, which they took very well’. Ibid. 146. He informed Oxford that:

My absenting from the House is with the consent of my countrymen, for it is impossible for me to agree with them who think that any contract can justly be altered without the consent of the contractors, who, in the Treaty of Union, were on our part the Estates of Scotland, and not the nobility; nor can our peers dispose of their peerage as of their property; the public is too much concerned in it to permit this. HMC Portland, v. 141.

Balmerino did not attend the House between 25 Jan. and 9 February. The reason for his eventual abandonment of his boycott was the arrival in the House of the Episcopal communion bill from the Commons on 8 February. Bishop Rose, forever timorous, was opposed to the bill, fearing that it would antagonize the Presbyterians. NLS, Wodrow letters Quarto, 4, f. 119; NAS, CH 12/12/1825. Balmerino appears to have agreed initially, but soon found himself conflicted as he watched the bill make its way through the Commons: ‘I was against bringing of it in but now if it fail the Presbyterians would be rampant’. He at first reaffirmed his intention not to return to the House, but his resolve steadily weakened as he felt he needed to support the bill. Scot. Hist. Soc. Misc. xii. 147, 149–50. Even though the Scots had obtained no redress over Hamilton, he attended the House again on 9 Feb., the day after the Episcopal communion bill received its first reading. He was then absent on only ten occasions between 9 Feb. and 8 May 1712, and chaired the second-reading committee on another bill promoted by the Episcopalian lobby, to repeal the Act for Discharging the Yule Vacance. On 9 May he gave his proxy to Kilsyth, and did not sit again until the day of prorogation on 8 July. With this disrupted attendance he came to only 44 per cent of the session’s sitting days. On leaving Westminster that summer he took the trouble to send friendly letters to both Oxford and Mar, expressing his loyalty to the queen and the ministry, and his dependence on Mar. He also reiterated his pretensions for his son to receive a place as a lord of session, although assuring Oxford that he was nevertheless ‘easy under the disappointment I have met with’ in this regard and would still remain loyal to the ministry. HMC Portland, v. 182–3; x. 198.

On 14 Aug. 1712 Balmerino attended the election of a representative peer to fill the vacancy created by the death of Marischal, casting his vote in favour of the 4th earl of Findlater [S] (as the earl of Seafield had become). He was also present on 13 Jan. 1713 when the Scottish peers elected a replacement for Hamilton, who had died the previous November after being fatally wounded in a duel. This time he voted for James Livingston, 5th earl of Linlithgow [S]. W. Robertson, Procs. Relating to Peerage of Scotland, 57-62.

Balmerino, having attended two of the prorogations in March 1713, resumed his seat in the House when the next session finally met for business on 9 Apr. 1713. He was present at all but seven of its meetings, 89 per cent of its sitting days. He had been included, by Jonathan Swift, in a list of those from whom the ministry could expect support in this session, but any such prospect evaporated after 2 May when Parliament began to debate the bill to extend the malt tax to Scotland. At the request of Scots in the Commons Balmerino agreed to write to all Scottish peers summoning them to a meeting on 12 May in order to come to a unanimous decision on what action to take. There it was agreed that the bill could not be blocked in the lower House and, sure enough, the malt tax bill passed the Commons on 22 May, much to the fury of the Scots in both houses. On 26 May the Scottish peers met again with Scottish Members of the Commons. According to Balmerino, ‘we were all very unanimous and zealous to agree to the Commons’ proposal for leave to bring in a bill for dissolving the Union. Thence we went and met with the Commons where the thing was resolved without one contrary vote’. Lockhart reported to Sir David Dalrymple that Balmerino was among those who ‘were for beginning instantly to let the court see they could and dared to oppose them, because the court were the persons who kept the Scots under the Union and would do so till the end of the world whilst they gained by it, and therefore it was fit to let them see what we durst do.’ Lockhart Letters, 80. Once the decision had been taken a deputation was sent to inform the queen, ‘not to ask leave but to tell her majesty that we are unanimously resolved to insist upon a dissolution of the Union’. Scot. Hist. Soc. Misc. xii. 152–3. A third meeting took place on 1 June to settle the wording of the motion to dissolve the Union, which Findlater was to propose later that day.

During the debate in the House on 1 June Balmerino supported the motion and spoke ‘very well’. He highlighted the indignities suffered by the Scots since 1707–the abolition of the Scottish Privy Council; the extension of the Treason Act to Scottish law; the Hamilton peerage case–and argued that these far outweighed any of the benefits derived from the Union. He appears, admittedly by his own account, to have been one of the principal speakers for the dissolution, at one point directly opposing his patron Oxford. The long debate culminated in a division on whether to put the question to delay further consideration of the proposed bill. This motion for a delay was defeated by the ministry by a scant majority of four, after which it was able to defeat the motion to bring in a bill for the dissolution of the Union. After this defeat the Scots met again and decided not to pursue the point by bringing into the Commons a dissolution bill, as they were likely to be defeated even more ignominiously there, whereas the Scottish peers ‘had by the help of the Whigs made a noble appearance’ in their House. ‘But’, Balmerino continued in his account to Maule, ‘we all declared that next session we would insist in it and join with any that would help us’. Ibid. 155–7, 163-4; NAS, GD 150/3461/8.

The Scots peers then considered how to oppose the malt tax bill. On 4 June 1713 Sunderland visited Balmerino and promised him the assistance of the Whigs if he would propose delaying the commitment, so that the House could consider all the articles relating to the malt tax in the Union treaty, as it applied to England as well. Balmerino replied that he ‘would agree to any motion that might retard the ruin of my country, but that amending it would throw it out, for the Commons will not pass a money bill that we amend’. Sunderland conceded this point but insisted on the logic of his proposal, upon which Balmerino promised to ‘talk to my Scots friends’. Scot. Hist. Soc. Misc. xii. 157. On 5 June, following urgent pressure from the Whigs, who wanted a known Tory to open the debate, Balmerino moved to adjourn the second reading of the malt tax bill and appoint a day to consider the state of the nation with regard to the Union, but this motion was defeated – by only one vote. Having received further encouragement from the Whigs, Balmerino then argued against the bill itself, on the basis that, according to the terms of the Union, the malt tax could not be extended to Scotland while the country was still formally at war with Spain, with no peace treaties between the countries having been ratified. This argument persuaded a number of lords to express support for delaying the committal and ‘it ended in a consent to commit it presently, but not to proceed in the committee till Monday and then we are to have a battle royal’. Ibid. 158–9. Balmerino reported to Maule that the committee of the whole House held on 8 June was ‘the fullest that ever I saw, for we were 120’ and his fellow Scots desired that he open the debate on the motion to reject the bill. He made much the same point as previously, that the war was not officially over at that point, but the motion was lost at division. Ibid. 159–60. The bill passed its third reading the same day and Balmerino helped to draft, with the concurrence of Sunderland, Charles Montagu, Baron (later earl of) Halifax, and Daniel Finch 2nd earl of Nottingham, the protest condemning the bill as a violation of the Union and an unjust imposition which Scotland could not pay. He of course put his name to this protest as well, along with 13 Scottish peers and four Whigs. Ibid. 161–2.

Balmerino was forecast as a probable opponent of the ministry over the bill to confirm the eighth and ninth articles of the French Commercial Treaty. He attended until Parliament was prorogued on 16 July and remained in London thereafter, when it was noted that he still ‘pretended to’ his salary as a commissioner of chamberlainry and a space for his son in the court of session when one fell vacant. HMC Portland, v. 313–14. On 21 Sept. he informed Oxford that he was ‘going for Scotland where I will endeavour to advance the queen’s service what I am able and I hope things shall succeed well now that you have put our business in so good hands’. Ibid. x. 210. In fact, once he reached Scotland he attended a meeting with Harry Maule, the bishop of Edinburgh and David Murray, 5th Viscount Stormont [S] and James Maule, 4th earl of Panmure [S] to discuss prospects for a Jacobite restoration. In Jacobite circles he was now regarded as one of the Pretender’s leading supporters in Scotland. Scot. Cath. Archives, Blairs Coll. mss BL 2/181/21, BL 2/188/3.

The Parliament of 1713

Balmerino was present at the election of the representative peers on 8 Oct. 1713. He himself was returned on the successful court list. Robertson, Procs. relating to Peerage of Scotland, 63-66. Illness delayed his return to London for the new session, and on 13 Jan. 1714 Atholl dispatched to Oxford Balmerino’s proxy as well as his own for the forthcoming session. They were probably blank proxies, perhaps intended for Oxford’s own use, but in any case Balmerino’s proxy never appears to have been formally registered by the clerk. HMC Portland, v. 380. He first took his seat in the new Parliament on 6 Mar. 1714, and came to 80 per cent of the sitting days of the session. He was particularly assiduous in its early stages, being recorded as absent only five times between the first day of the session and 9 July. NAS, GD 248/561/50/26; NLS, Wodrow letters Quarto, 7, f. 182. His support for the ministry was rewarded by the long-awaited payment of arrears of salary as a trade commissioner, amounting to £1,000, and the appointment of his son to the court of session. HMC Portland, v. 314; x. 217, 218-19; CTB, xxviii. 264; British Mercury, 7-14 Apr. 1714. He was forecast as likely to vote for the schism bill, but his only significant contribution to the business of the House came when the House considered the question of the Scottish title of James Butler, 2nd duke of Ormond. There was some dispute about Ormond’s right to vote in the election of representative peers as Lord Dingwall, and papers were presented to the House relating to his precedence in the Scottish peerage. The matter was referred to the committee of privileges and on 8 July Balmerino reported that the committee ‘are of opinion that the Lord Dingwall should be inserted in the roll of the nobility in Scotland’. The report was agreed to by the House, and Parliament was prorogued the same day. Robertson, Procs. relating to Peerage of Scotland, 67-68.

On 14 July 1714 Mar informed Oxford that Balemrinoch and Kilsyth were among those Scottish peers urgently pressing to be allowed to return home. HMC Portland, x. 322. Balmerino may have returned momentarily to Scotland, for when Parliament reassembled on 1 Aug., after the queen’s death, he did not resume his seat until 16 Aug. and came to only a further five sittings until the prorogation on 25 Aug.; in total he was present on 40 per cent of the sitting days. He was waiting for a further instalment of his salary as trade commissioner and, when he was told that none of the other commissioners had received more than £1,000 for their services, protested to Oxford. Convinced that ‘somebody must have misrepresented him or he would have had his warrant as well as other folks’, he raised the matter again on 6 Sept., this time successfully, although it is unclear whether the warrant was issued before he set out for Scotland. HMC Portland, x. 218–19.

With the accession of George I Balmerino lost all his offices. Although he took no part himself in the 1715 Rebellion, he maintained his Jacobite contacts, and in 1718 the Pretender assured him that ‘amidst all our past and present misfortunes I retain a most grateful sense of your constant friendship, which you cannot now show me better than by helping me with your advice in my law suit’. HMC Stuart, v. 129, 349. He did little in 1719 to raise opposition among Scots peers to the peerage bill, and although he became more active after complaints were made about his inertia, he reminded Oxford that he had previously expressed his aversion to giving Scottish peers hereditary seats in the House of Lords. In general he had now ‘given over the world; I neither meddle with public nor private affairs’. Add. 70034, ff. 58–59; HMC Portland, v. 579–80. Balmerino died at his house in Leith on 13 May 1736, aged 84, and was buried at Restalrig. He was succeeded by his elder surviving son and namesake, John Elphinstone, as 5th Lord Balmerino [S]. Meanwhile his younger surviving son, Arthur Elphinstone, distinguished himself as a Jacobite leader. He had fought in the ’Fifteen and escaped to France. He then came out again in the ’Forty-Five, was captured at Culloden, and found guilty of treason in a trial before the Lords. He succeeded his elder brother on 5 Jan. 1746 as 6th Lord Balmerino [S], and upon his execution on 18 Aug. 1746 the title was attainted.