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this is an extraordinary proceeding, and therefore should be against an extraordinary person; and in the next place, that it is against the rules of law. The rule of the law is, that there must be two living witnesses: as to that matter, gentlemen generally agree, that it is within the law of parliament to attaint people by bill of attainder; but they say they have been often misapplied; which I do easily believe, because some have been attainted, and have not been heard; and some have been in tumultuous times: but this gentleman hath had a fair trial, and a debate in this house: but I would fain know, though they confess bills of attainder may be, bow it can possibly be, if the lawyers at the bar say true, that it inust be upon oath, and you give no oath? To say it may begin in the house of lords: under favour, I take it, that a bill against a commoner cannot begin in the house of lords. And if you cannot have witnesses upon oath, you must have as much

one attainder that we meet withal in sacred history, and that is the attainder of Naboth; he was attainted, and we know what induced that attainder; he had nothing to object as to the formality of the proceedings there was set up against him: And though Jezabel's letter had disposed the rulers to deal by him as they did, yet there were two witnesses that did appear against him-I take it, that two witnesses are requisite for the knowledge of the truth, that you may make a right judgment whether they swear right or no. I will give you but one small instance more; I must tell you, Susannah had been but in a bad condition, if one witness or circumstantial evidence would have made her guilty.-A gentleman here says, 'Tis Apocrypha: But that which weighs with me is, that there may be inconveniences on one side, and there are no inconveniences on the other. I know not what may be the consequence of this precedent, nor where it may bring you: I know the conse-evidence as the nature of the thing will afford; quence, if sir J. F. be not executed upon a bill of attainder; for nobody will believe there is a necessity for this extraordinary remedy to be applied for an offence, a year and half after he hath been indicted and arraigned for it, and they might have proceeded to his trial; and I know not whether it is his fault that they did not; for it was not in his power to prevent it: And if you, upon every occasion, come to supply the defects of them that are remiss in the government, it will make them more so.-As to the matter of Precedents; Why, it may fall out, that by this precedent an innocent man may be punished, and then we that make this precedent are guilty of his blood; and if he suffer never so remotely, it will be required of us, if they proceed from this precedent. Now, if sir J. F. be not executed, unless in a legal way, what is the consequence of that? Is it that sir J. F. shall go unpunished? Though they are deprived of one evidence, that would make it treason, he may be punished for a misdemeanor, and imprisoned for his life; and I had much rather he did languish in that condition, and I am sure it is much safer for you, for no inconveniency can arise that way; and I take it, that when those that are our guides dispute which is the way, we are to take that which is the safest.-The learned have disputed, Whether this matter, as now it is charged upon sir J. F. be treason; I will not take upon me to determine it; they differ about it; and when they can't determine it, will you by a question determine it absolutely?-Upon the whole, there hath been so much said by the counsel for the prisoner, and so little said by the counsel against him, and so few arguments urged against him, that I must still retain the opinion I had, That there is not evidence enough for you to proceed upon this bill of attainder.

Mr. Boscawen. Sir, I desire to give my reasons for my opinion in this matter. I have no personal disgust against sir J. F. The great argument for sir J. F. against this bill is, that

that is, you must have witnesses to convince your consciences in the thing; for if all this great assembly are satisfied in their consciences, that he is guilty of inviting an army of French to come into England, I am astonished to think, that you should not pass this bill against him. I think, as to this witness, Porter, they have not endeavoured to blemish him; but their argument seems to run more upon Goodman's not being present. I would know, if there are two witnesses, and I do not believe them in my conscience, whether I can pass this bill? But I appeal in this case res ipsa loquitur; the thing is so plain. How many have been attainted and suffered for the same crime, that have acknowledged sir John Fenwick to have been present! There were several members of the house sent to examine sir John Freind and sir W. Parkyns in Newgate; and they were sent with this intention, That the house would intercede with the king for a pardon for them, if they discovered the full of the plot (it was not the death of sir W. Parkyns and sir John Freind that was aimed at, but the preservation of the public); and when they were examined, they did acknowledge, that they were privy to the calling in of the French, and that sir W. Parkyns was to have a troop of horse; there was to be 2000 horse: but he would not redeem his own life with the blood of others. Now I do take it, that there is evidence against sir J. F. sufficient, in a parliamentary way, to attaint him. The gentleman says, the consequence of throwing out this bill would be nothing, and that sir J. F. is a hittle man: I agree he is, but it is the consequence of bringing in a French army that is to be considered, Would you pave the way for them to come over, and make their entrance easy? I hope the people of England are concerned in the case, as well as their wives and children. If you let him go, what will be said? I have not heard one say, that he believes he is not guilty; there is none but think him guilty; and yet will you let him escape? What encouragement

will this be to your enemies? He hath not denied the matter himself: Nay, he hath not brought one gentleman to vindicate him, that he is a man of a behaviour not to be believed to be guilty of such a thing, which was done in other trials. I desire you would consider what the French king said of his brother king James; How could he think to bring in popery with a protestant army? I am sure the bringing in of a French army must be for the destruction of the people of England, and the protestant religion, and will bring your people to go in wooden shoes. It is the example of this thing you are to consider. It was said at the destruction of Carthage, That the commonwealth was always to be minded. I think you ought always to be mindful for the preservation of England; and I believe he is guilty, and I am therefore for the bill.

what witnesses are necessary, and he tells you two witnesses were required by the common law of treason, if the person was tried by a jury;) but, says he, if there be but one witness in case of treason, he shall be tried before the constable and marshal. And in treating of the statute of Hen. 8, which does appoint how treason beyond sea shall be tried; says he, that is only where there are only two witnesses; but if there is but one witness, he shall be tried before, the constable and marshal; because, says he, the statute of Hen. 8, does not take away that trial before the constable and marshal; and for that, sir, there are several precedents in this case, of persons that have been attainted by a court-marshal; and if the accuser was vanquished, he was to suffer the same judgment the defendant was if he was found guilty. I am upon a gentleman's life, and never was so before, and desire to be never so again; there have been several precedents, I say, in this case, and my lord Coke is express in the point; and I desire any gentlemen to shew me any law that hath repealed this.-In case of murder; suppose a man be wounded upon the land and die upon the sea, and I could shew several cases where the common law can't try a man by jury, but he shall be tried by the custom of merchants before the statute of Ed. 6. If a man was wounded in one country, and died in another, he could not be tried. That which I aim at is to shew you, that though the common law should fail, yet they need not come with a bill in this case. If two Englishmen beyond sea fight, and one kill the other, it can't be tried by the common law; How then shall it be tried? It must be tried by the courtmarshal. It was sir John Amesley's case in Rich. 2d's time; and Well-'s case, and lord Herbert's Case in II. 6th's time, who, there being but one witness, was accused before the constable and marshal.-[Mr. Brotherton was

Lord Digby. I shall trouble you but with a word or two. I suppose, as long as we act by the known rules of justice, and the laws of our land, we shall not need to fear any censure in our own kingdom, or any where else; but it is a very uncertain thing for gentlemen to be judges in the case of life and death, without any rule to walk by; a great many will not allow us any rule at all: I always took our rule to be the law of the land, and that even ourselves are bound by the laws our ancestors have made, 'till we think fit to repeal them; and I am confirmed in this case by one particular argument from the bill of treason that passed last sessions, in which there is a clause, That it should not extend to future parliaments. The only argument for exercising of this power, is the extraordinary case of this gentleman. When a gentleman speaks of the power of parliament, I take it to be the just power of parliament: I think a man may say, a parliament can't do what they can't justly do. But all gentlemen allow, that this power ought not to be exercised but in an extraordinary case where-here interrupted by the great noise the house. in the government is nearly concerned made upon the novelty of the argument, and believe very few but think, that if it had not did not go on further with it.] been for the vindication of some particular gentlemen we never had had this matter before us; and then I will leave it to gentlemen to consider, if the government can be in so much danger if sir John Fenwick does escape?

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Mr. Brotherton. Mr. Speaker, I perceive the question, Whether this bill shall be committed, arises very much upon a supposition that seems to be granted, Thit there is no other law to try this person by; and it hath been hinted, That before the statute of Edw. 6, one witness was sufficient: Now, if I shew you that here is a law in being, and hath continued for several hundred years, whereby a man may be tried, and titat by one witness, I think it is something that hath not been spoke to yet.—Sir, I ground my reason and opinion upon the authority of the law, and upon the historians of all times, who agree in the thing, and come down to my lord Coke, which is printed by authority; and be is express, That where there is but one witness (he treats of

Mr. Paget. Sir, I attended to the debate of this day, and have not hitherto troubled you myself, because I did expect to be better informed by this debate. I think the substance of the debate of this day hath been, not so much to shew us by what rule we are to go, as to shew us that we have no role to go by but our judgments. Sir, I never had the honour to sit in parliament before this time, and therefore can't quote precedents of what hath been done in former parliaments; others have taken a great deal of pains to shew you, that it is in the discretion of gentlemen, and they are only to be satisfied in their consciences. I am not fond to hear myself speak, and therefore I hope I shall be favourably heard at this time; and I do think I have the more reason to speak at this time, from something that fell from a very honourable gentleman at the bar: If I do misrepeat him, I hope he will excuse me, for I do not do it with an ill design: But I think his words were to this effect; That he did not

that hath been called before me, to give my judgment on, I hope I may be excused for taking this liberty, upon such evidence as appears before us, to tell you, I can't give my consent to this bill.

know, but if it was known in the country, that gentlemen did give their judgment against pass ing of this bill, it might hinder the election in future parliaments. Sir, since there seems to be so great stress upon our determination in this matter, I hope I may at this time shew Sir W. Lowther. Sir, you have had a very you my reasons why I can't come up to agree long debate in this house, and long discourse in this bill; and I shall submit it to them, whe- from the bar; and though the counsel was ther they will do me the honour to chuse me directed that they should not dispute the priviagain? I must confess, I do think this is as leges and authority of this house, yet, as far as nice a case as I can pretend to give my my judgment carries me, their whole discourse opinion in; and as it is so, I shall desire the was against it; And most of the gentlemen best assurance of the truth of this matter, that have spoke against the bill, it hath been, before I give my opinion for the passing of because it hath not been adequate to the prothis bill.-Sir, you have had before you one ceedings in Westminster-Hall, because there evidence: I will admit him to be as much as a hath been but one witness. Sir, if there had single evidence can be: As to the paper of been two witnesses, this house had not been Goodman's examination, I have heard that and troubled with it: It is a case of a very extraother matters too, which I shall not repeat. ordinary nature, and so required an extraor But I do remember, that, in the debate of dinary proceeding.-It hath been questioned yesterday, it was not insisted on to be evidence: by some gentlemen, Whether one witness be And if not so, I shall only take the matter as sufficient in this case, or no? Which I wonder depending before you upon one evidence only. at, since a great many have been convicted -Sir, it it true, I believe this house, as to its upon his evidence, and every one of them has legislative proceeding, is not tied by the methods confessed; which shews it to be a notorious of inferior courts: But I hope I shall be ex- truth. There is another inference they draw cused, if in the methods of prosecution and from the proceedings here: Because a great conviction of offenders, after they have been many of those precedents of attainders have prescribed by the wisdom of the parliament, I been reversed, and those with notes of ig hope I shall be excused, if I believe this house nominy. If they did consider the times they can't take away any person's life upon less were made in, and the times they were reevidence than inferior courts could do.-And, | versed in, there might be a great deal of cause sir, I shall not enter into any very long vindica- | for it: We find that, it was contrary factions tion of myself, and my zeal and willingness to that reversed them, and that makes it never serve the government; I never was employed the worse. And truly, sir, I do not know but in any other government; and I think my ac- where circumstances are so notorious, but they tions have been such that nobody can instance are tantamount to a second witness, as I have in any one thing that hath looked otherwise; heard in Westminster-Hall, and in cases of life and when I have said this, I shall trouble you too. If a man be murdered, and two in a no further about that: But there hath been so room, and one comes out with a bloody sword, much stress laid upon this bill, that whosoever the law does presume that man murdered him, speaks against it, seems to speak against the though there is no particular evidence that he government; because it is said, the passing of murdered him, but only this circumstance; and it is so necessary for the support of the govern- yet the man's life is concerned in that case. ment. And I was the more willing to offer you So that upon the whole, it appears to me that my reasons, because, as the nature of this de- he is guilty, and, I think, nothing can be plainer. bate has been, I can't satisfy myself where my-There is another circumstance, That he fled judgment and opinion shall rest: For if it be for it; and that is a presumption of a mau's so, that you are not tied to have as much guilt: For a man loses his goods, if he flies for evidence as inferior courts, and, as they say, felony. one evidence is enough, and my judgment is to be guided by papers; then they, without any evidence, may be enough to satisfy: And if you take up with less evidence than inferior courts, I can't come to declare how little evidence may take away a man's life.--As to the prisoner, I know him not; but I think this bill is for all that he hath to lose, and is for all the best Englishman can lose upon the like oecasion.-Sir, I shall be very tender in giving my opinion for the bill, unless it was very clear to me that it was reasonable. Truly, I have heard very little of the whole plot, or of this matter that hath been examined, or for which others have been executed; my life has been generally in the country, and I have not had the curiosity to buy the trials; and as this is the first person

Mr. Harley. It would be very unreasonable and impertinent to trouble you long after such a debate: I shall avoid repetition of what hath been suggested to you much better from other persons than would have been from me. I own it is a case of great concern, and it is my misfortune that I should ever sit upon a thing of this nature; but I will discharge my conscience always, and give what arguments occur to me, why I am against this bill. Gentlemen have been pleased in their arguments to enter upon the debate of your power and authority, and have made that a part of their argument: but I think, with submission, we need not dis pute that at all: It is admitted, that there have been bills of attainder passed formerly, and your authority is not under dispute; for the

legislative in all nations have a power lodged in | them, for the safety of the whole.-But your proper enquiry is, Whether this is such a case as you ought to exercise this extraordinary power; omne regnum sub graviore regno: Though you have this absolute authority, yet it is to be executed by the rules of reason, and by the rules (for such there are) of eternal justice; and I look upon this as one that is inviolable, That no man can forfeit his life, in such a case as this is, without two witnesses. I must adhere to that, because I have heard nothing in this debate that can make me quit that maxim: And it is such an ancient land-mark, that I will never draw a curse upon me, and my posterity, for removing of it. I beg leave that I speak with this earnestness to you.--Gentlemen have been pleased to make it part of their arguments, The great danger the government is in if this bill does not succeed. I will not use many words; but I think that argument ought not to be taken in the gross, but to be examined, Whether this argument, of the hazard of the government, is of equal poize for you to break the eternal rules of justice? I won't quote the case before; every gentleman knows it, (though there was two witnesses in that case to put an innocent person to death) where it is urged, the Romans will come and take our state and nation: But with how much reason that was urged, every body knows; and how far the government is now in danger. Let us consider, Is this gentleman out of your power? Is the government in danger of a man that is your prisoner? Is he in open rebellion against you? If this law does not pass, if you have not your hands in his blood, is he not under the power of the law? Did not he tell you so himself? Every gentleman ought to have a zeal for the government, and I wish it was visible in every thing else; but if that be so, give us leave also to speak with zeal for our liberty, and ancient constitution. The argument is turned two ways: On one side you are told, that this probably may make him confess something; and by others, he is to be made an example of punishment. This is the first beginning of a bill of this nature: But the same reason that leads you to this, must lead you to all the rest: The same reason that is urged for this bill to make him confess, will lead you to bring in a bill to make him a good evidence: This every body must allow to be the consequence of it.-How does this bill come before you? It comes before you upon a villainous, scandalous aspersion of some great men; though I know them not all, yet I have a great value for them, and I would make their case iny own: But if they were the nearest relations I had, I would be against this bill upon their account; and let any one examine the reason of it.—Sir, I won't run into precedents; but, only because it hath been told you, that the precedents were made in one reign by one faction, and then the attainders were reversed in another reign by another faction: There is one occurs to my mind, which hath been touched at, and is at least of instruction to me. VOL. V.

There was a case in Ed. 3's time; there was the deposition of a king, a king barbarously murdered, and his son upon the throne; and there was the notoriety of the fact, for which a great man was attainted in his son's reign, and no different title; and four years after, a bill was brought in against the earl of March: And one of the articles against him was, that he had procured that attainder of that noble lord, under pretence of some letter, or paper, that was signed by him; which, if it was so, says the record, was no evidence.-I say this before gentlemen, to shew them how things have. turned, and precedents that have been made very unanimously; but in bad times have been turned to shed the best blood in England. It grieves me to my soul to hear of Mr. Cornish, whose attainder you have reversed, to hear that quoted as a precedent in this house: It is not whether two witnesses be the rule of Westminster-hall, it is the rule of right reason; and it is a muxim in your law, make what law you will against the law of God, it is void: And this is the law of God, and right reason.--You must provide for the government; and when you can't do it by course of law, then armies must do it, when the courts are shut. I hope gentlemen will not put a hard construction upon what I have said; I have done it to discharge a good conscience.

Mr. Chanc. of the Exch. Sir, I am for the commitment of this bill, because in my conscience I think sir John Fenwick is guilty; and because I think the power of parliaments may interpose in this matter: And if they have such a power, I think they may justly exercise it in this case, Gentlemen say, they will not dispute the power of parliament; and yet in their argoments they tell us, we are not to proceed otherwise than according to the forms of inferior courts. And if the parliament is not to proceed without two witnesses in the case of treason, give me leave to say, there is no room left for a bill of attainder, unless you will take the business of inferior courts upon yourselves: And I am confident, several gentlemen, if there were two witnesses, would use it as an argument, what have you to do with it? Refer it to the ordinary courts of justice; and I am sure that would be very reasonable. But I do think that parliaments have that power, and they have always used it; and I believe it is for the advantage of your constitution. The interior courts are to go by the letter of the law; and whoever can avoid that, is to escape punishment there; but the legislative is not to be dallied with: And if the offence be of that nature, that inferior courts can't reach it, they can go beyond all forms to preserve the governinent. This they have done, and upon that principle you sit here. Was it by the forms of common justice below, that you declared the throne to be vacant, and king William to be lawful king? Is it upon the ordinary rules of Westminster-hall, that his title does depend ? No, it depends upon this maxim, that the parliament of England are intrusted for the whole, 4 B

and may constitute a government for the preservation of the whole. And upon the same right principle that I gave my vote to declare him rightful and lawful king, by the same principles I declare his enemies to be traitors.You are told here, it is according to the law of God and nature, that there must be two wit-probation abroad. And in this case I shall nesses in cases of treason: I do not pretend much skill in other parts of the world, I think it is our particular happiness to have this way of trial: I think in any other part of the world, if he had dealt thus with the government, he would have had another manner of proceeding against him, than to be condemned by king, loids, and commons: But that is your constitution, but it does not hold in other parts of the world. Some gentlemen lay the stress of their argument upon the ill consequence it may have in another reign: I would avoid ill consequences in another reign as much as I could, but our immediate care is the preserving of the present constitution.-But if gentlemen are apprehensive, that by such an example, if king James should return, others may be punished; if we may judge what he would do, by what he hath done, he would go another way to work; if he came to London, he would proceed as his party did at Dublin, and attaint all the protestants in one common bill; that is the precedent he hath set, and he will follow. And therefore, in order to prevent that, and in order to punish our enemies, and to preserve our constitution and prerogative of parliament in all points; and because I am convinced in my conscience he is guilty, I shall give my concurrence for commitment of this bill.

the common defence between the king and the people; but the king is safest when the laws are most strictly observed.--I shall not pretend to talk of your power, which hath no other bounds but your justice and discretion; and what you think so, will, I hope, meet with apalways be against what is called a trial to-day: But I do not think it any; for I do think we are an unfit court to determine this matter. We sit in so many capacities, it is hard to distinguish in what capacity we are here: Some are accused; it is hard to be accused, and to be a judge at the same time. I am sure I am as much concerned as if I was accused myself; and it is for my innocence and honour that I think myself bound to speak against this bill. For as no resentment shall make me do any thing that is unjust, so I fear nothing that he can say; and I will never go about to stop his evidence, by cramming a bill of attainder down his throat.-Besides, it is an unfit thing for any gentleman who is obliged to be of counsel for the king; it is hard for him to be so, and sit here as a judge: I think also to proceed in this mauner, is a disrespectful thing to the king himself; for in this case you turn the throne of mercy into the seat of judgment. The king, who should have all the ways to ingratiate himself with his subjects; you make him, by this proceeding, to pronounce the sentence him self upon the life of a subject; and it is hard to offer a bill to the king in such a manner, by which you oblige him either to reject it (which was always looked upon as an hardship) or to pass sentence upon this gentleman, which perCol. Granvile. Sir, I would not presume to haps his gracious temper and his mercy make trouble you at this time of night, was the de-him averse to.-Sir, it is too late to give you bate upon a less subject than it is; but since you are going to pronounce judgment in a case of life and death, and that this house is above any rules, and we have no precedent for it, but every gentleman is to find out private rules to walk by; the rule that I shall take to is, that I would deal with sir John Fenwick as I would have mankind to deal with me: if I was in sir John Fenwick's place, and were indicted of high-treason, and were not allowed any trial, nor the benefit of making my defence, according to the known laws of the land; I should think my blood unjustly spilt, let me be never so guilty. The laws are what are set up for the defence of every man'; and when once we break through them, whatever our end may be at that time, and though it may in some manner seem to justify us, because it is to come at an ill man; yet pray consider, the best of men may be come at as easily as the worst of men. And what makes me cautious is, that my hands are guiltless of blood yet, and I will take care how I begin to dip them in it. And that which will make me cautious in any case of this nature is, what I read in the story of the late time, that when once a set of peo, le had begun to dip their hands in the blood of my lord Strafford, | nothing would quiet them till they had stained their hands with royal blood. The laws are

other arguments; you have heard a great many better than I can give: But I think this bill is unjust in itself, and dangerous in its consequence; and therefore I hope you will not commit it.

Sir Herbert Crofts. Sir, I did not think to trouble you in this debate, but only for the arguments that have been used by some that spake lately, who seem to lay a great load upon men, according as they give their vote in this matter, because it is in relation to the blood of a man. I have considered the point, I hope, with as much caution as any man within these walls, and hope to act with as strict a conscience as any man whatsoever; and shall be glad to be informed from those gentlemen, that have laid the stress so hard upon religion, how they can shew me, that I do not as strictly, as to all points of religion, give my vote for passing of this bill, as they would excuse themselves from it. I must agree with those gentlemen, that you are no ways bound or limited to the rules of Westminster-Hall; and therefore what was said upon that, I did not think worth taking notice of; but when we are told, we are bound up by the laws of nature and religion, and the law of God, in this matter, this touches me so nearly, that I inust desire those gentlemen to shew me in scripture the law that they quote.——

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