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him, there is the same right to clear any criminal whatsoever. Sir, since I am brought up upon giving my judgment in this matter, (though I come as unwillingly as any body to it) I must go according to my conscience; and till I can see something of the law of God, that has been hinted at, made out, I must go according to the law of my reason; and that is, that I must be for the bill.
If it be the law of nature, and the law of God, that every man that dies must be convicted by two witnesses, as an honourable person observed, I wonder it is not observed by all Christian nations and governments, that they are not all governed by this law; if there be any direction from the law of God, that no man is to die for treason without two witnesses, but he may suffer for murder and felony with one witness. Now, I say, I must desire the gentleman that asserts it, that he would be pleased to shew me it in scripture, and I will be entirely of his opinion: But till I hear that very plainly proved, it is not within my reading or remembrance, and therefore I desire it may have no weight. And now I am up, I shall give my reasons, why I shall give my vote for this bill.-The reason that governs me, is the preservation of the government, and the common-wealth under which I live; and which I think I am in the station wherein I stand bound to preserve, by all the rules of justice imaginaable. Now if your law hath bounded inferior courts, but hath not bounded you in this matter, though you have said inferior courts shall not determine and give judgment in such a case; yet, I think, you are not bound up so here: But if the matter be proved to my satisfaction, I may give my judgment according to the evidence that comes before me, without that restriction.-But, sir, this ought not to be done, it is said, but upon extraordinary occasions. You were told, some time since, of the case of the duke of Monmouth; but it was said, that he was attainted because he was in arms, and could not be come at otherwise: But I think this is a parallel case to that, if not much stronger: for here is a person that hath been accused, and fully proved to have been in rebellion, and in treasonable practices with your enemies, to bring an invasion upon you, and to subvert your government; and though he hath not been proved to have been in that single act of the assassination, yet there is such a correspondency between one and the other, that I do look upon him as equally guilty of both. Therefore this having been so fully proved, and the person that stands accused being out of the reach of the common course of the law; what remedy have you, but to fly to your legislative power, to attaint him upon the grounds and allegations of your bill, that one witness is withdrawn? And I am very well satisfied, and I think we may presume it is by bis own, or his friends encouragement and procurement. And I do take this to be as reasonable a ground for your bill, as any thing in the other case; and I know not what is an extraordinary case, if this be not one: Is it not an extraordinary case, for a plot to be laid for the total subversion of this constitution, and our religion for ever, and we can't come at it to punish it another way? But it hath been said, the safety of the government does not depend❘ upon him: If we acquit him, we are to acquit every one alike: I hope the government does not depend upon him alone; but if you clear
Lord Norreys. I will not pretend to tell you what the authority of this house is, it is what they please to make it; but I am sure they will ground it upon good reason; but I think the reason chiefly given for the commitment of this bill, leaves you a latitude to do what you please, and give no reason at all; for it is only to say, I am convinced in my conscience this man is guilty; no matter upon what proof, no matter whether any proof or not; you may be lieve it from his life and conversation, and the company he keeps, or from his interest; and that may be argument enough to find a man guilty. But till I know a reason better grounded than this, I cannot be for the commitment of this bill.
Sir Christ. Musgrave. I am sure at this time of night I am unfit to speak in so great a matter: I must confess I should not have troubled you, if it had not been in the case of blood.-You have had a great debate before you of the power of parliaments, and that hath been sufficiently argued; and I have not learning enough to give you any precedents that have not been already quoted: But every body does agree in this, that what power you have of this kind, is not to be exercised but upon extraordinary occasions. Now I would be glad to know, what this extraordinary occasion is ?-— Every body allows, That treason is the greatest crime a man can be guilty of; and the charge of this gentleman is high-treason: But therefore, in this case, must you exercise this authority? Pray, wherein does this case differ from any other case of high-treason, that any other person will be practising against the government? All the difference I can make of it, consists in two points; the one is, That he hath prevaricated with the government; and the other, That gentlemen say he hath been a means of procrastinating his trial, in which time an evidence hath made his escape. I will allow you, that it is a very great crime for any one to asperse so great men as he hath done; but I would be glad to know, whether there being such an ingredient, it be sufficient to attaint him upon high-treason upon that account.-Then as to that of a witness being gone, gentlemen have said, they are apt to believe, and there is great presumption that he bath been the occasion of this witness being gone. Is that an ingredient sufficient, though at present it hath not been proved to you? But if it had been proved, I should not however think that is treason. Then if this be the only difference between this gentleman and any other person that shall be practising to subvert the government, I would know, if there be but
also proposed to the consideration of the said committee, Whether the lords spiritual should stand in the enacting part? But upon looking into the several acts of attainder, it appeared they were unconcerned in all those acts of attainder, in the enacting part; and so the committee was satisfied in that point, and they were left to stand in the bill by general consent; and the bill was ordered to be reported to the house; and afterwards, upon the report, the house agreed with the committee in the aforesaid amendment of the words, importing sir John Fenwick's being guilty.
Debate on the Third Reading of the Bill.] Nov. 25. The said bill against sir John Fenwick was read the third time.
Mr. Methwen. Mr. Speaker, I have not troubled you in any of this long debate, and do it unwillingly now: but I do think it every
one witness against any man, for conspiring against the king, if they may not have recourse to this precedent, to proceed against him by a bill of attainder? For the argument is, Whosoever is endeavouring to subvert the government, provided there be but one witness, you are obliged, by virtue of your legislative power, to bring a bill of attainder against him. And what then? Of what use is the great care and wisdom of your ancestors, and yourselves, that where a crime is so great, and the punishment there should be two witnesses?-I was mightily surprized to hear gentlemen tell you, that two witnesses is a form in your law, and a form in inferior courts. I never could believe that was a form; for according to your law, no man shall be declared guilty of treason, unless there be two witnesses against him; so that it gives, in a manner, a determination to the crane; that I take to be the case.-A gentleman's duty, in a case of this great importance, man told you That he was fully satisfied by the freely to own his opinion, and give his reasons proof, that this gentleman is guilty: But how for it. The greatest part of the debate hath can a man satisfy his own conscience, to con- run upon two things; the inconveniency of bills demn any man by a law that is subsequent to of attainder, and the having them too frequent; the fact? For that is the case; and pray see that it is necessary to have them sometimes, the danger of precedents: It now will appear that any person might not think they are not upon your journals, that you have caused to be out of reach, if they could evade the laws that real a deposition of a person that was absent, were made to protect the people.-I think, in taken before a justice of peace, when the per- general, that this bill, as every other, ought to son accused had no opportunity to interrogate have its fate upon the particular circumstances him; and likewise, that you have heard a wit- before you; and whoever gives his affirmative ness as to what a man swore in the trial of to this bill, ought to be convinced, that sir J. another man: All this will appear upon your F. is guilty of high treason; and also, that there Books. And truly I would be glad to know, are extraordinary reasons why the nation does if another age may not be apt to think, that prosecute him in so extraordinary manner; and you took these to make good the defect of I do think one of these is not sufficient alone. another witness; and then I must appeal to If between the Indictment and Arraignment, or you, if you have not admitted of a testimony, Trial, Goodman should have died, and there which according to no law is admitted.-They had been no other reason for attainting str J. F. say you are not tied to the rules of Westminster- only the defect of his evidence, I should not Hall, nor their forms. Is there any law in be- have thought it a sufficient reason, though we ing, that says, a judge may hear a witness as to should have had an opportunity of being inwhat was sworn upon the trial of another per- formed of his particular evidence, and believed son, to condemn him that was not party to that him guilty; and if sir J. F. does not appear trial? If there be no such law, then the rule is guilty, I do not think any reason of state, though founded upon justice and common right, that he hath prevaricated, and behaved himself to nothing shall be brought against a man when a the dissatisfaction of every body; therefore, I man was not a party when the oath was made, think, there must be both these.-You have and he had no opportunity to examine him, heard the evidence; 1 shall not repeat it, but I thought it my duty to tell you, That when rather come to these things that distinguish sir you have made this precedent, if any person J. F.'s case; only thus, you have received the shall be accused of treason but by one witness, evidence against sir J. F. and given him liberty there will be the same reason to proceed thus to make his defence, and have fully heard him; against him. which I think hath altered the reason of a great many precedents cited from my lord Coke, and other authors.-That which distinguishes this case is, the great danger the nation was in from this conspiracy, and the sense the nation hath had of it; and I find, by the general opinion of all persons, this danger is not at an end. There seems likewise to be an opinion as general, That sir J. F. could have contributed to your safety by a discovery.-The next circumstance, That sir J. F. knowing of this, and the expectation the nation had from him, for that he could have contributed to your safety, hath made use of that to put off his trial; and at last, has made
Then (being a little before eleven a-clock at night) the question was put,
Whether the bill should be committed? and the house divided: Ayes, 182. Noes, 128. So it passed in the affirmative, and the bill was committed to a committee of the whole house.
Nov. 23. The house resolved into a committee of the whole house, upon the said Bill, and several words being offered as an Amendment to the said Bill, to import sir John Fenwick's being Guilty; at last the words that were agreed on, were these, Of which Treason the said sir John Fenwick is Guilty: It was
nations; not only that you are tried by a jury, which is particular to you; but that the witnesses are to be produced face to face before the offender; and you have made laws, that there shall be two witnesses in cases of high treason; and herein you are the envy of all other nations.-Sir, the evidence that is to be
such a paper, as does shew an inclination to do you all the prejudice he can, and tended to the creating of new dangers; and by this means sir J. F. against whom there was two witnesses when he was indicted, hath delayed his trial, so that now there is but one; and there is a violent presumption, that this person is withdrawn by the practice of sir J. F.'s friends.-There re-given against criminals, differs in the same namains yet with me as great consideration as tion where the offences differ: there is a differany of these: the public resentment of the na- ence between the evidence that will convict a tion for such his behaviour, is the only means man of felony, and the evidence that is to conhis practice has left you; and it seems neces- vict a man of treason: and the evidence to sary for your safety, to come the next best way convict a man of the same crime, hath been to what he could have done. Against the Evi- different in the same nation, according to the dence that hath been given, there have been reason of the law. No doubt, by the common great doubts raised; not so much whether it be law of England, that evidence was sufficient, such evidence as may incline us to believe him which was sufficient to incline the jury to beto be guilty; but whether it be such as you lieve the person guilty. This before the statute should hear in the capacity you are in; and of Edward 6, though that was made upon great whether, after it is found, such as it is, that is reason, and appears to be for the public good, not such as would convict him upon another by the general approbation it hath received; trial. Whether you ought to credit it, and that but I don't think in your proceedings here, you should influence you to give your vote for this are bound by it-But, sir, it is said, Shall we bill of attainder; this is a doubt that I find that are the supreme authority (as we are part weighs generally with them that differ from me of it) go upon less evidence to satisfy ourselves in opinion about this bill; and therefore I de- of sir John Fenwick's guilt, than the other sire leave to speak to that particular.-It is said, courts? and shall we resort to this extraordinary That you are trying of sir J. F.; that you are way in this case?-Truly, if it did shake the judges, and that you are both judges and jury; manner of trials below, I should be very unwiland that you are obliged to proceed according ling to do it; but I do take it clearly, that it to the same rule, though not the methods, of cannot but on the contrary, I think there is Westminster-hall; secundum allegata et pro- no stronger argument for your resorting to this bata. But the state of the matter, as it appears extraordinary way, like to that of the caution to me, is, That you are here in your legislative which your law hath provided for the innocency For if we consider all those power, making a new law for the attainting of of all persons. sir J. F.; and for exempting his particular case, laws that have been made, it is plain it must be and trying of it, (if you will use that word, in the view of our ancestors, that criminals though improperly); in which case the methods might not escape; and the laws are made for differ from what the law requires in other cases; your ordinary trials, and for those things that for this is never to be a law for any other after- happen usually; and your government hath wards. Methinks this being the state of the this advantage, that they can keep to that which case, it quite puts us out of the method of trials, others cannot for in a very wise government and all the laws that are for limiting rules for (as was observed by a person that sat in this evidence at Trials in Westminster-hall, and house the last time this was debated) the ways other judicatures; for it must be agreed, the of punishing crimes of this nature are extraorsame rule of evidence must be observed in other dinary, when persons are condemned: they are places as well as Westminster-hall, I mean in not only unheard, but they are condemned beImpeachments, and it has always been so taken.fore they are accused; and that is thought ne-This notion of two witnesses has so much cessary there, which will not be endured here: gained upon some gentlemen, that we have had and yet that government hath continued so some gentlemen say, That this is required by long, and no endeavours have been to alter it, the law of nature, the universal law of nature, though so many noble families have suffered by nay, by the law of God. And I think, if it was it, because they are convinced, as to their conso, there would be no doubt but it will oblige stitution, it is necessary.-The next argument us. But therefore I go to the bottom of the is from the precedent we are about to make; matter: that any man deserves to be punished, and whatever the other precedents have been, is because he is criminal: that this or that man what you do now will be a precedent for you deserves it, is because he is guilty of a crime, and your posterity; and whilst that is used to let his crime be made evident any way whatso- make you cautious, and tends to make you conever; for whatsoever makes the truth evident, sider well, whether it is according to the duty to is and is accounted in all laws to be evidence.- your country to pass this vote (which no doubt Now as to the rules for examining any person, is the only question before you), it is a good arwhether he is guilty or not, and the evidence gument.-Sir, if this precedent shall appear to that is allowed in all nations, no two nations posterity to be a precedent concerning an innoagree in the same evidence for the trial of cri- cent man, or a person whose guilt was doubted minals, nor in the manner of giving the evidence of, or one whose guilt did not appear, and this against them. Your trials differ from all other bill should be carried by a prevailing party, I
positive witnesses to prove treason. Now it may be imagined, that I make use of this as an argument, that we are tied up to these rules: No, I am not of that opinion, that we are bound by the rules of any society whatsoever, The parliament have power to abrogate all laws that they have passed, if they think good; and so certainly cannot be tied up by any rules now in being. But, sir, there are the eternal rules of equity, and justice, and right reason, and conscience; and these, I think, are unalterable, and never to be swerved from; and therefore I shall take the liberty to see how far agreeable our proceedings are to these rules.—Sir, I do look upon it, that it is a rule agreeable to what I speak of, that no man shall be accused by he knows not whom; and that no man shall be accused, but that the evidence against him, and he, should be confronted, and brought face to face. I am one of those that believe sir J. F. to be guilty; and there is clear proof of it by one witness; and you have added to this an indictment that is found: but I must needs own, that I think that to be so far from giving any addition or strength to the evidence, that when that is brought in, I look upon the scales to be lighter than they were before: for if any record or writing that is sworn to behind a man's back, shall be brought here to supply another part of the evidence: (and if not so, why is it brought here?) and if that be to be interpreted to make up a part of the evidence, I do, by parallel rea son, argue, that like may make up the whole at one time or another; and may be so far made use of, that any profligate knave, that gives information before a justice of peace, or a secretary of state, this may rise against any man whatsoever when he is obnoxious to the govern ment; or a person may be accused for his good service in this reign, and this may be set up against him, and he run the hazard of his life.
Then, sir, as to the necessity of this matter, I must confess, that those that brought this matter before us, are much wiser than I: and therefore I will not examine what reason they had to do it: but it is so little agreeable to me, But is it to be wish it had not come here. supposed, that your government is in hazard of any man that is fast in Newgate? Can any man think, that sir John Fenwick can do any thing in his condition to hazard it? Can you expect that a man that hath been six months in prison, and nobody came at him, that he may make such a discovery as may be worth your while? but suppose you had a man of invention and practice, what a spur do you put to it? May not a man of parts, when he hath no other way to save himself, may not he frame such a plot, as may make the best subjects in England trem ble?-Why then, sir, I do say, by this you are in a very dangerous way to suffer by the inven tion of any man: and suppose he should be so ignorant, as to know nothing; or so great a blockhead, to be able to invent nothing, would you hang him either for ignorance or insuffici ency: I must confess, I dread the consequence of this for the nation in general, and for our
do agree it was a very ill precedent: but if the |
Sir Godfrey Copley. Sir, I am very sensible
posterity. It is not sir John Fenwick's life I argue for: I do not think it wrth a debate in this house, nor the consideration of so great an assembly; but I do say, if this method of proceeding be warranted by an English parliament, there is an end to the defence of any man living, be he never so innocent.—Sir, I remember I heard it mentioned on the other side of the way, by an honourable person, who never lets any argument want its weight, That king James attainted a great number of persons in a catalogue, in a lump. Sir, I am not afraid of what arbitrary princes do, nor an Irish parliament; but I am afraid of what shall be done here: I am concerned for the honour of your proceedings, that it may not be a precedent to a future parliament in an ill reign, which I am satisfied you would not do. I had some other thoughts, which I cannot recollect, &c.
Mr. Foley (the Speaker's son). Sir, the worthy gentleman that spake first upon this debate, calls me up: He said, that he thought in this matter, every one ought to give the reasons of his opinion and in giving the reasons of my opinion, I do solemnly protest, I do it with the same sincerity as I would do, if I was upon my oath, and of a jury.-The worthy gentleman said, That if there could be any danger from this precedent, that an innocent man might lose his life, he would not be for it. I desire that he would consider, whether there be almost any instances of any innocent men that have lost their lives, but what has proceeded from precedents that have begun upon guilty men. The same gentleman told you, that if we did not believe sir J. F. to be guilty, no other consideration ought to move us to be for this bill:-Now the reason I am against this bill is, because it does not appear to me, from the evidence that hath been given at the bar, that sir J. F. is guilty. And I do think, that which is not legal evidence is no evidence; and I do think, that all the lawyers that have spoke in this matter, have allowed it to be no legal evidence. And I desire gentlemen will consider, if it has not been thought reasonable, that men should be convicted upon such evidence, why now it should be said to be necessary? I think the saying of my lord Strafford upon his trial was this: if the pilot was to direct a ship in a dangerous sea, and there was no buoy to direct his course, if be there split his ship, it was excusable; but if there was a buoy up, then he was accountable for it.-Now, comparing our government to the sea, there hath been many rocks and sands, and many men have lost their lives by them: but the treason bill seems to be set as a buoy to avoid that mischief for the future. Now if we split upon these rocks, I shall think we are but ill pilots.-Upon a former debate we were told, we are not tied up to the rules of Westminsterhall, and it was sufficient to justify a man in giving his vote for this bill, that he was satisfied that sir J. F. was guilty: see the consequence of that, in things that I have as much believed
that they have no reason to mistrust: When a
Lord Cutis. The worthy member that spake last but one, told you, That he thought the life of sir J. F. was not worth the consideration of this assembly: I do differ from him in that. If the Scripture tells us, That the most insignificant creature does not fall without God Almighty's consideration, I think the life of a gentleman may be thought worth ours. The worthy gentleman that spake last, told us, That he did be
in his conscience sir J. F. to be guilty: but because he hath found himself mistaken formerly, when he believed things with the same appearing certainty, therefore he may be mistaken now. I hope gentlemen will not press an argument upon our judgments, from precedents that are only mistakes: I do agree, that any man may be mistaken in a thing which at that time he thinks himself most certain of: but till
that mistake appears, I say, it ought not to make
as I do this, I have found myself mistaken.--him doubt of any thing that he does clearly and When a jury acts according to legal evidence, distinctly perceive: if otherwise, there is an