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discretion I will disclaim all the days of my life. And I hope you will reject the bill.

from the gentleman that spoke last, that he would have told you there was a plain evidence, why you should go on to the passing of this Lord Cutts. If, sir, the gentleman that bill; but instead of that, I am surprized to hear spake last had been speaking to Westminstera thing mentioned, that in parliamentary pro- Hall, I should think that he had shewed a great ceedings a man may be hanged by one witness; deal of reason, and spoke with a great deal of certainly that is not to be taken for granted.— judgment; but since I think you are here upon As to this particular case, I would take captain a quite different foot; I shall not follow him Porter as upon his oath, for supposition: You (because I will not unnecessarily detain you) have one witness against sir John Fenwick of to answer every particular.-I remember, when high-treason; and, with your leave, I desire to the counsel for the prisoner first spake, they examine what you have more in this case.took notice to you, that precedents were proYesterday you voted a paper to be read, Good- creative, and one begat another, and they are man's narrative or examination; it is a dif- apt to multiply; therefore I do think, it is of ferent case now you have it before you to de- the highest moment to you, what precedent termine upon. Yesterday the question was you make to-night: And if any gentleman can only for hearing but gentlemen now consider be satisfied, that the precedent of passing this how far they ought to believe it, and the other bill, will be of worse consequence than the preevidence we heard. And first, there is some cedent of not passing it, I shall humbly submit. evidence that Clancy tampered with Porter, I do think, sir, the matter before you is of the and gave him a sum of 3001. and so they would highest importance; and I must confess, it is infer, because Porter was tampered with to be with a great deal of satisfaction to myself, that gone, therefore Goodman was. It was told us I do see gentlemen seem to apply themselves further (and I desire I may be informed if I am with a great deal of seriousness to this debate. mistaken,) that Clancy said, he came from sir Sir, I shall not pretend to make a particular John Fenwick; and afterwards my lady Mary answer to what the counsel for the prisoner did Fenwick said, she would make good what say; as to the precedents of acts of parliament, Clancy had said; and from these arguments I think this answer is sufficient at present for they presume, that sir John Fenwick knew of that,that if we have no precedent, we are under it. Give me leave to tell you a rule I never a necessity of making one. It is told us, that heard contradicted, that presumption is to be of all the precedents none will justify us in this made in favour of life; but to presume a man proceeding; but at the same time it must be guilty because Porter was tampered with by considered, that we are in a case, the like to another, because he said it was by sir John which never yet happened in England.-The Fenwick's order; shall we presume sir John first thing I shall apply myself to, is the jurisFenwick did it? Is hear-say to be evidence? diction of parliaments; and truly, I think, it Or is a man to be had to the gallows upon pre- will be very necessary to say a little upon that. sumption? How often, and with how much I have heard none call this power in question, reason, have we heard exclamations against the thing speaks itself; it is the legislative judgments upon presumptions, innuendoes, con- power, and the etymology of the word tells you structive and accumulative treason? &c.- what it is: It is a power that can make laws, Gentlemen, there is some further evidence, and and abolish them; a power that is superiour to that is, of what was sworn at Cook's trial; and all other powers whatsoever, and we are part of some gentlemen thought fit to have the record that legislative power; and therefore I shall say read, and an examination of what was sworn more to that, it being a matter agreed, there. I can never go so far as to think it rea- that we have a power to proceed in this matsonable, that what evidence hath been given in ter. Now I will take leave to observe someone case should affect another man; but all thing as to the particular case before you.this is to be answered, by calling it Parlia- Though a gentleman that spoke some time mentary Proceedings. We doubt it is no evi- since, did speak to you of the nature of the dence in the courts below, but they are men- crime; yet, with submission, I think there retioned with some kind of disdain, as very incon-mains something to be added to what he said. siderable. In this case, I beg leave to say this in their vindication, That whatever the rules in Westminster-Hall are, it is not therefore reason because it is a rule; but because it is reason, and reason approved of by long experience, therefore it is a rule; and if they make their rules for that cause, I hope that is a cause why we should imitate them: But I would not have those rules thought matters of form, but substance, or more properly part of the law itself. -Upon the whole matter; if no gentleman will give us a reason why this is evidence, but one witness, and that not upon oath and if we are to come to our parliamentary discretion to supply that defect, the want of the other, it is a

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The conspiracy of which sir John Fenwick to me appears guilty, is not only against the life of the king, not only to depose the king, not only a conspiracy to raise a rebellion, but at the same time to contrive an invasion from France, and bring in a foreign power. I know not what better expression to tell my thoughts in, than by using a term which physicians use in some desperate cases; they tell you, there is a complication of distempers; and I think this is a complication of treasons: this is the highest crime, and it is attended with all the aggravating circumstances this crime can admit of. Now, in giving our opinion, and passing our judgment upon this matter, I think there are

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two considerations ought to guide us: There is a consideration we owe to the prisoner that is brought before us; and another consideration which we owe to the common security. As to the first of these, it being a matter of blood, wherein the life of an Englishman, the life of a man of his quality and figure, is at stake, we ought to proceed with all the calmness that is possible; and I do agree, if there was nothing but presumption, that ought to be in favour of life. But pray let us consider how this matter stands: let me desire those gentlemen that are of opinion we ought to have so much tenderness for the prisoner, to lay before them another scene, and sort of consideration, at the same time. I do consider the hardship (if I may use that expression) of passing this sentence; I do consider what a condition we had been in, if the contrivance that was laid had taken effect; that is the weightiest part of the matter before you and though it was disappointed then, I know not how far off it is at present; this ought really to weigh with you. And I hope may take leave, upon this occasion, to observe to you, what one of the wisest and best of the Romans said upon an occasion of this nature: he tells you, That a man that would consider his duty aright, must consider the matter in all its parts and circumstances; and when that is done, must act adequate, as well to the community, as to himself and his neighbour. I would apply that to the present case; and would desire those gentlemen that express so much tenderness in this case, to have some for the government, and themselves. It was told you, That the prisoner before you does not stand convicted of any crime: It was told you at the bar, That the most we ought to pretend to, is no further than to leave him in the condition we found him I think, with submission, the prisoner stands convicted of high treason, with the highest conviction upon earth, and that is, the general consent of all mankind; for I will be bold to say, I do verily believe, that there is not one gentleman within these walls, nor that walks the streets, not a living soul, that doubts of his crime. But, sir, I would put this matter yet further; I am not only satisfied in my own conscience and reason, of the justice of your proceedings, which ought indeed to be the foundation of every man's opinion; but I satisfied, that in this way, there is no hardship imposed upon sir John Fenwick, if he will be his own friend: for I doubt not, upon what hath passed in this proceeding, that before things are brought to the last extremity, if sir John Fenwick be his own friend, if he be so much a penitent and friend to the government, and to posterity, to tell truth, and leave off his dissembling, and be plain; I doubt not but he will find favour. Now, sir, I would beg leave only to answer one or two objections; for some things that have been said against the passing of this bill, I do not think material. One objection that seems to me to carry the greatest appearance of weight, was made by one of the Counsel for the prisoner: he said, It would look

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strange in after ages, that the same parliament should pass the bill for regulating of trials in treason, and this bill of attainder. Sir, I desire you will please to observe how this matter stands; and in the first place, as previous to that, I take leave to observe a few things: It is a proposition generally agreed to, and not to be denied, that that which is designed for the preservation of any creature, ought not to be made use of to their destruction. Now this treason bill was designed for your preservation, to skreen you against the danger of arbitrary power, and the malice of false witnesses; and this bill of attainder is brought to skreen both you and the government from your enemies, both abroad and at home. And I think the treason bill is no objection upon these considerations: besides, the treason bill was only made to be a rule to inferior courts. The learned gentleman that spake last, told you, the rules of Westminster-hall were not rules, because they were ob served there, but because they were grounded upon reason. Why, sir, in answer to that, I will only take leave to tell him, that that which is reason in Westminster-hall, does not carry the same weight here. I think that matter was so well explained by the learned gentleman at the bar, that there need nothing be added to it. He told you very well, it is one thing what I trust to do by my servant, and another thing what I do by myself. It is very obvious to any man's understanding, if this power were lodged in the judges, what use they might make of this unlimited power; but no gentleman can mistrust any thing that shall be done by this house. -Another objection that was made by the counsel for the prisoner, was, says he, This is evidence, or it is no evidence; if it be evidence, then, says he, Why do you not try him at law? If it be no evidence, why do you admit it here? Now, sir, with submission, this carries the face and form of an argument; but if you take it to pieces, I think there is no convincing weight in it: For, sir, the reason why this matter comes before you, is, because by the absence of one of the witnesses, according to the formal part of the law, sir John Fenwick will be acquitted; but it is generally agreed, that the consequence of so great a crime going unpunished, may be dangerous to your posterity. This bill of attainder is brought into the house, that you may supply that want of form, you being convinced of the reality of his crime.-Another objection made by the counsel at the bar, was as to captain Porter, whom he reflected upon; says he, shall a man that hath owned himself guilty of such a villainy as the murder of the king, of a sudden have such credit as to sway with you? I would take leave upon this occasion, to repeat to you what my L. C. J. upon the bench did observe at Charnock's trial: This same thing was urged and pressed home by Charnock; and my L.,C. J. was pleased to take notice, that it consisted with the wisdom and justice of all states and governments to allow of such evidence, because without it they could never come to the knowledge of

any treason or conspiracy; For, he added, whom will you have an account of these things from, but the actors of them?-And therefore, when they are penitent, and willing to atone for their crime, by doing all the service they can to the state, and justice to mankind, we ought not only to receive, but encourage them. When the danger the government would be in, if you did not pass this bill, was urged; it was answered, but what danger will you and your posterity run in not passing of it? I think the matter appears so plain and clear before you, that when all the other parts of the question are passed over, I should think it a reflection upon the house, to enter upon a particular answer to it. I had not said what I have said, that I think any part decisive, but to clear myself to the world for the opinion I going to give; and perhaps what I have said, may give occasion to some others to say something that may be much more to the purpose; but for the reasons I have given, I am for the bill.

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Mr. Sloane. Sir, I as little care for meddling in matters of blood, as any man, and should be glad to avoid giving my opinion in this case; but I think it is incumbent upon every gentleman that hath the honour to sit here, in point of trust; I think it his duty to them whom he represents, to the king and kingdom in general, to give his opinion when he is clear and satisfied in it; and if I was in the least dissatisfied, I should venture the displeasure of the house to absent; but upon the whole case, and the proof that hath been given, I am very clear that sir John Fenwick is guilty of this treason that he is accused of; and that it is treason without any strain, and well warranted by precedents. I would first take notice of what is said to your jurisdiction in general; I remember it was said this was an incroachment upon Magna Charta; for by that, no person is to be tried for his life, but by the judgment of his peers. Those gentlemen that have made that objection, have intirely forgot the other part, which is the next sentence; Nec super ibimus, nec super eum mittimus, nisi per regulare judicium parium suorum vel per legem terræ.' What do they make that to be? It is true, in the ordinary course of justice, persons must be tried, a commoner by a commoner, and a peer by a peer; but there are several sorts of trials and laws in the land: And when you come to consider what is meant by per legem terræ,' you have the commons ler terræ; you have the statute law, and ler loci, the laws of particular manors; And there are several sorts of trials besides that by jury; there are trials by battle: The defendant in case of appeal may try it by battle, and he that is killed loses the cause. Then there is a law above all these laws, and that is the law of parliament, which my lord Coke calls iex parliamenti and lex parliamentaria in another place, which he says is, ab omnibus inquirenda,' but a paucis nota; and it is not fit it should be known how far they can go (and so it is in chancery), and that is a VOL. V.

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law that is unlimited, and that is one of the laws saved by Magna Charta. I say, therefore, that without any incroachment upon Magna Charta, or any law whatsoever, you enter regularly upon his trial.-I would answer another thing that was said against a trial in parliament; and I must confess, I did wonder to hear it from that honourable ancient member, That if he was to be tried, he should rather chuse to be tried in Westminster-hall. Why, sir, before I should have given so sudden a judgment as that, I would have considered what my case was: If I had had such a case as count Coningsmark, a bad cause and a great deal of money, I would rather be tried there; or if I could be tried as sir George Wakeman was; but if I had a good cause, and would use no corruption, instead of twelve men that might be corrupted, I had rather be tried by 4 or 500 gentlemen that are beyond it. You see how trials went below, the trial of my lady Lisle, that could neither see nor hear; and there came a person to her house that was proved to be in Monmouth's rebellion, and she was burned for it.-Then as to the case before you, I would offer my reasons why I believe this gentleman to be guilty; here is capt. Porter, he hath po sitively sworn, that he had another meeting at Mrs. Mountjoy's, and there they did consult, and agree to send Charnock over to France; and Charnock was directed to go with a message to invite a foreign power over here. Now the question is, Whether he is to be believed And I would go upon the same reasons for believing a Witness, as they do in Westminsterhall; and will go as far along with those gen tlemen, as to the credibility of a Witness; But if he be to be credited in Westminster-hall, why is he not so here? And therefore, if they had brought any testimony against his credit, as made him guilty of perjury, or forgery, it had been an objection against his testimony; but it was so far from that, that they, did not offer to prove one word of that; but what was said was said from the counsel, and that is to go for no evidence. The counsel did indeed alledge against his credit several things, but did not prove any; and if they had, they would not have taken away his testimony in Westminster-hall; That is, that he was concerned in the late intended assassination, and treason: This was the same objection that was made below; and they brought Witnesses to prove that and some other things, but they did not weigh any thing; for if it should be an objec tion that he was in the conspiracy, then you can have no evidence of any villainy, for they will never trust honest men with it. Therefore I do take it, that Porter stands before you as a very credible good Winess, without any imputation whatsoever. Then, sir, say they, he is not upon his oath; that is an objection to your jurisdiction, and though they say they own your jurisdiction, yet when they say so, they speak against your jurisdiction; and by the same reason you can go upon no impeachment whatsoever; for you can in no case give an oath. 3 Z

Then, sir, they tell you, he is but one Witness, and that it is in the case of treason, and there ought to be two Witnesses; and therefore the you have jurisdiction to do any thing whatsoever, yet you have no jurisdiction to go upon this cause. Now, sir, because this seems to be the most formidable objection that is insisted on against the proceedings in this case, I beg your leave that I may fully answer it.-And taking it to be true, that the fact is proved by one Witness, I conceive we may proceed in this cause, though they can't in Westminster-hall; and I do take it, that there is a great deal of difference between one and the other; and I do not take your proceedings upon this bill, being there is but one Witness, to be any strain, but what you may extend the legislative to, without going beyond what hath been done. I therefore beg you to consider what the law originally was as to treason, and how it came to be altered. Before the statute of 25 Ed. 3, it was certain what was treason, and what was not; then the statute came and reduced it, that as to all inferior courts, these are your treasons, and no other shall be adjudged so; but the parliament reserved to themselves a power, that if any case should happen like them, they were to determine it themselves. So, sir, that at that time, and after that time, one Witness was good in case of treason: as now it is at this day for robbery, felony, or any other fact but treason. And till 1 Ed. 6, one Witness was good in all treasons: Then comes two statutes in Ed. 6's time, and the first takes notice, That since the 25 Ed. 3, by several statutes treasons had been made which were unseasonable, and therefore repeals them, and makes several new treasons: Then comes a Proviso at the end of it; Provided always, that no person whatsover, after the 1st Feb. then next coming, shall be indicted, arraigned, condemned or convicted for any offence of treason, &c. unless the offender be accused by two sufficient and lawful Wit'nesses, or shall willingly, without violence, 'confess the same.' Now that Proviso relates only to the treasons particularly mentioned in that statute. Then comes the next statute 5 Ed. 6, and pursues the same words; But now this did not mean any facts whatsoever that were left to the judgment of the parliament, because these facts were not within their cognizance. They are not parliamentary words; indicted, arraigned, convicted, but only used by the courts below. Why, sir, if it be so that one Witness is sufficient, here you have not only one credible Witness, but he is propt up extremely well by collateral circumstances; and though I do not allow that below they can proceed upon one Witness with pregnant circumstances; yet for the reasons given, considering how this evidence is propt up, I think it is sufficient before you: For there was another Witness against him, and it hath been proved what that Witness could have said if he was here; and it is plain that men have died upon the same testimony. I must confess,

when I was for reading of Goodman's examination, &c. I was not for reading them as conclusive evidence, nor do I think them so in any sort, either the conviction of Cook, or Goodinan's Examination before a justice of peace; but it is a stronger evidence in this case than any other, because the Witness is not dead, nor is he withdrawn by the means of any body but the prisoner, or his friends; which, as I take it, appears upon the evidence: and if so, I think it comes to the case, That if any one gets my deeds, if he will not produce them, they shall be presumed to be what I say they are. I must confess, the acting of his wife or any agent might not be evidence, if it appeared they did it officiously without his knowledge; but being Clancy said he came from sir John Fenwick, and it was for sir John Fenwick's advantage, I will believe it was by his privity And for myself, I think it no strain, if in this case we take him to be a good second to captain Porter, though it ought not to be admitted in Wesminster-hall.-Then it is said, That you have no jurisdiction to proceed by attainder in this case, where the person does appear, and he is in the hands of the law, and ready to take his trial: I quoted you an instance the other day, 12 Car. 2, where they attainted persons that were dead, without examining one Witness; and I have viewed all the books since, and there is nothing appears, but the bill ordered to be brought in, one reading, and another, and some petitions for making of savings: There is one rank of people that were dead; a second rank, which, as you were told from the bar, were the king's judges: some of which, it is true, were tried by the law: But how? Not by the direction of the parliament: It was before they came into the hands of the parliament: and the parliament takes notice they had been tried. There was another sort that was never tried, but absented; and though they might have come into the hands of the law and been out-lawed, the parliament took cognizance of thein, and attainted them of treason. Sir, I do take notice, that there was a fourth sort of people convicted at that time (for if we were confined to the rules of Westminster-hall, no doubt we could not give a lesser judgment than that for treason); there were the lord Mounson, sir John D'Anvers, and others; and the statute recites, that they were concerned in the murder of the king; yet in regard so many had actually suffered, they did not give them the judgment of treason but to forfeit their estates, &c.-This is to shew you the jurisdiction the parliament have over offences, and how they can alleviate the punishment according to the circumstances as they appear before them; therefore I think this is a plain proof that we have a jurisdiction to go on with the bill; and at the same time, I say this, I would put it out of the case, whether the prisoner be a little man or a great man, that is now in judgment before us; and I would put it out of the case, what a good thing his discovery would be; I do not think that a good ar

gument; neither do I think it any argument if this man escape, what danger we shall be in : But I do give my judgment from the argument of his guilt, and our jurisdiction.

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Mr. Pelham. Sir, the learned gentleman that spake last, seemed so very clear in his opinion, when he began to speak, that I was in hopes he would have given me and every body satisfaction in this great point, especially when he began with Magna Charta, which says, That every man shall be tried by his peers, or by the law of the land: I do take it to be part of the law of the land, that no man should be condemned for treason without two Witnesses; but after that he did lay his finger upon the sore, he told you, the great objection was, That the courts of Westminster-hall are so governed and tyed down, that they can't pass any sentence for treason, but upon two Witnesses; and he told you, they ought to be tied so: Indecd he did say we were not tied so: But I own to you, he did not give me any satisfactory reason why he should not be tied so. said, we are not tied, and it is impossible we should, for no act can tie the legislative power; and several gentlemen have said, That though there are several statutes that declare there shall be two Witnesses in cases of treason, yet they do say, that in case of attainder by parliament, one Witness may be sufficient. Why may it not be thought, that these acts extend to the legislative, as well as the statutes of Edw. 3, by which it is presumed, That the parliament may proceed upon one Witness? And I take it, That there being no such hint, it is a presumption that the lex terra does crave an observation of it by the legislative power.-I did presume yesterday to tell you, that Mr. Algernoon Sidney did stand upon it as his natural right, that they could not proceed against him, there being but one Witness: I did not bring his case as parallel to this, or think that his authority should influence you; but he was a man that bad that love to liberty, and the good of his country, that he would not have said so, even to save his life, if he had thought it inconsistent with either of them: But I have looked upon his trial since, and there he does declare, that the being condemned by two Witnesses, is the law of God, and the law of man; the just law that is observed by all men, and in all places; it is certain he reached even by these words, the power of parliament; When I do say power, I do not mean, but that when such a law is passed, all are bound by it; but in some sense we may say, you cannot do what is not just for you to do; You can do but what is just and agreeable to the trust reposed in you.The gentleman says, he thinks it a strange opinion of him that said, he had rather be tried by a jury than the house of commons: Indeed, if he could be sure of such a house of commons as this, he might retract what he had said: But I have seen that done in the house of commons, which hath not made me extremely fond of that trial. I have sat here when 6 or 7 noblemen have been declared enemies to the

kingdom without any evidence at all, and the reason was somewhat like what it is now. The power of parliaments was brought in as an argument then; and it was said, it was only in order to an impeachment, but no impeachment followed; yet these noblemen went with that brand in their foreheads; and if any disturbance bad been, they had been exposed to the fury of the people: And though we are sure of this house of commons, and may be of all in this reign, yet I know not how facts may arise, and what parliaments we may have; and upon that account I am very unwilling a precedent should be made, at least contrary to the usage in all manner of courts whatsoever.

Sir Tho. Littleton. Sir, I shall not trouble you long in this debate, that hath taken up so much of your time already, in the consideration of some matters we have been upon; though I did think your time not very regularly spent, till this occasion offered itself: I hope, therefore, now it will take up less of your time. I see the great matter that was insisted on before, is insisted upon still; and I do think we may say it among ourselves, though we would not let the counsel, that we are tyed up in this case by the rules of Westminster-hall; but I believe if that was the case, and the question was no otherwise, than, Whether or no we are tied up by the rules of Westminster-hall? I believe it would receive a determination, that we are not bound up to those rules.-But I will take leave to tell you what I think is proper for us to ground our judgment on: I think one great reason even of those who are against the precedent, why they did admit sir J. F. to have counsel, and to examine Witnesses, if he had any, and to cross-examine the Witnesses, and why they were willing to hear evidence on both sides in the nature of a trial; the great reason was, because that in a case of so great consequence as this is,they would have the best information they could obtain. Why did they desire to be informed, but that afterwards they could lay their hands upon their hearts, and give their judgment upon their private opinion, whether he was guilty or no? They say, we are not to give our judgment upon our private opinion; I always will. (It was not long ago we were not to have our religion upon our private opinion neither:) And when I am justified in that, I will rely upon it. Whether this be strictly legal evidence, I do not lay so much weight upon it, as whether it hath satisfied my conscience; and I believe there is not a man in the house but is so (upon what he hath heard), and doth believe that sir J. F. is guilty; and if we believe he is guilty, I would be glad to know by what rales in the world any man can give his vote against this bill, being of that belief. And I tell you why I think every man believes so; because every man in the kingdom that hath not heard so much as we have heard, does believe him to be so; and I can't think that their representatives only should be of another opinion. What Evidence have you had? You have had capt. Porter's Evidence, and that would

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