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.

If it be the law of nature, and the law of God, | him, there is the same right to clear any crithat every man that dies must be convicted by minal whatsoever. Sir, since I am brought two witnesses, as an honourable person ob- up upon giving my judgment in this matter, served, I wonder it is not observed by all (though I come as unwillingly as any body to Christian nations and governments, that they it) I must go according to my conscience; and are not all governed by this law; if there be till I can see something of the law of God, that any direction from the law of God, that no has been hinted at, made out, I must go accordman is to die for treason without two witnesses, ing to the law of my reason; and that is, that I but he may suffer for murder and felony with must be for the Litl. 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 Sir Christ. Musgravs. I am sure at this case; yet, I think, you are not bound up so time of night I am unfit to speak in so great a here: But if the matter be proved to my satis matter: I must confess I should not have troufaction, I may give my judgment according to bled you, if it had not been in the case of the evidence that comes before me, without blood.-You have had a great debate before that restriction.-But, sir, this ought not to be you of the power of parliaments, and that hath done, it is said, but upon extraordinary occa- been sufficiently argued; and I have not learnsions. You were told, some time since, of the ing enough to give you any precedents that have case of the duke of Monmouth; but it was not been already quoted: But every body does said, that he was attainted because he was in agree in this, that what power you bave of this arms, and could not be come at otherwise: kind, is not to be exercised but upon extraorBut I think this is a parallel case to that, if not dinary occasions. Now I would be glad to much stronger: for here is a person that hath know, what this extraordinary occasion is ?-been accused, and fully proved to have been in Every body allows, That treason is the greatest rebellion, and in treasonable practices with crime a man can be guilty of; and the charge your enemies, to bring an invasion upon you, of this gentleman is high-treason: But thereand to subvert your government; and though fore, in this case, must you exercise this auhe hath not been proved to have been in that thority? Pray, wherein does this case differ single act of the assassination, yet there is such from any other case of high-treason, that any a correspondency between one and the other, other person will be practising against the gothat I do look upon him as equally guilty of vernment? All the difference I can make of it, both. Therefore this having been so fully consists in two points; the one is, That he hath proved, and the person that stands accused prevaricated with the government; and the being out of the reach of the common course other, That gentlemen say he hath been a of the law; what remedy have you, but to fly means of procrastinating his trial, in which to your legislative power, to attaint him upon time an evidence hath made his escape. I will the grounds and allegations of your bill, that allow you, that it is a very great crime for any one witness is withdrawn? And I am very well one to asperse so great men as he hath done; satisfied, and I think we may presume it is by but I would be glad to know, whether there his own, or his friends encouragement and pro- being such an ingredient, it be sufficient to curement. And I do take this to be as rea- attaint him upon high-treason upon that acsonable a ground for your bill, as any thing in count.--Then as to that of a witness being the other case; and I know not what is an ex- gone, gentlemen have said, they are apt to betraordinary case, if this be not one: Is it not lieve, and there is great presumption that he an extraordinary case, for a plot to be laid for bath been the occasion of this witness being the total subversion of this constitution, and our gone. Is that an ingredient sufficient, though religion for ever, and we can't come at it to at present it hath not been proved to you? But punish it another way? But it hath been said, if it had been proved, I should not however the safety of the government does not depend think that is treason. Then if this be the only upon him: If we acquit him, we are to acquit difference between this gentleman and any every one alike: I hope the government does other person that shall be practising to subvert not depend upon him alone; but if you clear the government, I would know, if there be but

Debate on the Third Reading of the Bill.] Nov. 25. The said bill against sir John Fenwick was read the third time.

Mr. Methuen, Mr. Speaker, I have not troubled you in any of this long debate, and do it unwillingly now: but I do think it every man's duty, in a case of this great importance, freely to own his opinion, and give his reasons for it. The greatest part of the debate hath run upon two things; the inconveniency of bills of attainder, and the having them too frequent; that it is necessary to have them sometimes, that any person might not think they are not out of reach, if they could evade the laws that were made to protect the people.—I think, in

one witness against any man, for conspiring also proposed to the consideration of the said against the king, if they may not have recourse committee, Whether the lords spiritual should to this precedent, to proceed against him by a stand in the enacting part? But upon looking bill of attainder? For the argument is, Who- into the several acts of attainder, it appeared soever is endeavouring to subvert the govern- they were unconcerned in all those acts of atment, provided there be but one witness, you tainder, in the enacting part; and so the comare obliged, by virtue of your legislative power, mittee was satisfied in that point, and they were to bring a bill of attainder against him. And left to stand in the bill by general consent; and what then? Of what use is the great care and the bill was ordered to be reported to the house; wisdom of your ancestors, and yourselves, that | and afterwards, upon the report, the house where a crime is so great, and the punishment agreed with the committee in the aforesaid so great, there should be two witnesses?—I was amendment of the words, importing sir John mightily surprized to hear gentlemen tell you, Fenwick's being guilty. 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 told you That he was fully satisfied by the proof, that this gentleman is guilty: But how can a man satisfy his own conscience, to condemn any man by a law that is subsequent to the fact? For that is the case; and pray see the danger of precedents: It now will appear upon your journals, that you have caused to be real a deposition of a person that was absent, 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 sir 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; I shall not repeat it, but I thought it my duty to tell you, That when you have made this precedent, if any person shall be accused of treason but by one witness, there will be the same reason to proceed thus against him.

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 lost the words that were agreed on, were these, Of which Treason the said sir John Fenwick is Guilty: It was

rather come to these things that distinguish sir J. F.'s case; only thus, you have received the evidence against sir J. F. and given him liberty to make his defence, and have fully heard 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 bath 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

such a paper, as does shew an inclination to donations; not only that you are tried by a jury, you all the prejudice he can, and tended to the which is particular to you; but that the witcreating of new dangers; and by this means sir nesses are to be produced face to face before J. F. against whom there was two witnesses the offender; and you have made laws, that when he was indicted, bath delayed his trial, so there shall be two witnesses in cases of high that now there is but one; and there is a vio- treason; and herein you are the envy of all lent presumption, that this person is withdrawn other nations.-Sir, the evidence that is to be by the practice of sir J. F.'s friends.-There re- given against criminals, differs in the same namains yet with me as great a 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 unwil and 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 power, making a new law for the attainting of of all persons. For if we consider all those 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 cascs; 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 neThis notion of two witnesses has so much gained upon some gentlemen, that we have had some gentlemen say, That this is required by the law of nature, the universal law of nature, nay, by the law of God. And I think, if it was so, there would be no doubt but it will oblige us. But therefore I go to the bottom of the matter: that any man deserves to be punished, is because he is criminal: that this or that man deserves it, is because he is guilty of a crime, let his crime be made evident any way whatsoever; for whatsoever makes the truth evident, is and is accounted in all laws to be evidence. Now as to the rules for examining any person, whether he is guilty or not, and the evidence that is allowed in all nations, no two nations agree in the same evidence for the trial of criminals, nor in the manner of giving the evidence against them. Your trials differ from all other

|

cessary there, which will not be endured here: and yet that government hath continued so long, and no endeavours have been to alter it, though so many noble families have suffered by it, because they are convinced, as to their constitution, it is necessary -The next argument is from the precedent we are about to make; and whatever the other precedents have been, what you do now will be a precedent for you and your posterity; and whilst that is used to make you cautious, and tends to make you consider well, whether it is according to the duty to your country to pass this vote (which no doubt is the only question before you), it is a good argument.-Sir, if this precedent shall appear to posterity to be a precedent concerning an innocent man, or a person whose guilt was doubted of, or one whose guilt did not appear, and this bill should be carried by a prevailing party, I

do agree it was a very ill precedent: but if the case be, that this precedent will appear to posterity, upon the truth of the thing, to be a precedent made of a man notoriously guilty; of a man that had deserved this extraordinary way of proceeding, this extraordinary resentment of the nation; and that nothing could have hindered this man from the common justice of the nation, but his having endeavoured to elude it in this matter; and if it appears that you would not be put off so, but made an example of this man, I shall not be sorry it should appear to posterity; but I believe posterity will (as I think they ought) thank you for it.-Sir, I do say for my own particular, while I am innocent, I should not think my life in danger to be judged by 400 English gentlemen, and the peerage of England, with the royal assent; and when I reflect, I can't be of opinion, that the government could have procured a parliament to have passed a bill of attainder against my lord Russel, or Mr. Cornish, or Mr. Colledge, I don't think all the power of the government could have prevailed with the parliament to have done it: and here I see that a great many gentlemen have opposed every step of this bill, for fear of making an ill precedent; yet those gentlemen do believe in their own consciences, that he is guilty; and I can't think that any person can be in danger by such a bill, when gentlemen oppose this bill only upon the prudential part, though they still confess him to be guilty.-All the conclusion I make to myself is, That I do believe, I am convinced in my conscience (which I think is sufficient, when I act in the capacity I now do) that sir J. F. is guilty: but there are reasons so extraordinary to support this bill of attainder, that I do not see how any person, that is so convinced, can refuse to give his affirmative to

this bill.

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 reason, argue, that the 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 goveroment; 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.

Sir Godfrey Copley. Sir, I am very sensible a great deal hath been said upon this subject; Then, sir, as to the necessity of this matter, but I think there is something in duty incum- I must confess, that those that brought this matbent upon every man, especially upon me, who ter before us, are much wiser than I: and can't concur with the general sense of the house, therefore I will not examine what reason they to give my reasons for my disagreement; and I had to do it: but it is so little agreeable to me, will make no use of arguments but such as II wish it had not come here. But is it to be can't answer myself. A great deal hath been said upon this debate by gentlemen learned in the law and many of these, though they have said they would not speak as to the power of parliaments, yet the greatest part of their arguments have touched upon your method of proceedings, and to shew you how they interfere with the rules of Westminster-hall; so great is the force of custom and education: but I acknowledge some have brought us arguments quite of another strain.-This is a matter of so extraordinary importance, that I think it proper to consider what rules we have to go by; but I take the punishment of offenders and criminals, to be the necessary support of all governments whatsoever, without which no government can continue; but all societies of men have supposed to themselves some rules, whereby it may be known, whether offenders are guilty or no. --It is the custom of our nation, to have two

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 tremble?-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

argue

posterity. It is not sir John Fenwick's life I that they have no reason to mistrust: When a for: I do not think it wrth a debate injury finds according to legal evidence, they are in this house, nor the consideration of so great an no manner of blame: and if this man be innoassembly; but I do say, if this method of pro- cent, when you have taken away his life, and his ceeding be warranted by an English parliament, estate, and ruined his family, all that you have there is an end to the defence of any man liv- to say for it is, That you have acted according ing, be he never so innocent.-Sir, I remember to the best of your own understandings, guided I heard it mentioned on the other side of the by your own private opinion.-Were this the way, by an honourable person, who never lets Case of sir J. F. only, and I not to give my vote, any argument want its weight, That king James I reckon him so despicable, and because I beattainted a great number of persons in a cata- lieve him to be a traitor, and I think the worse logue, in a lump. Sir, I am not afraid of what of him for the part he hath acted since he was arbitrary princes do, nor an Irish parliament; in custody, I should not concern myself about but I am afraid of what shall be done here: I it. But when I speak against this bill, I speak am concerned for the honour of your proceed- on the behalf of all those that may hereafter ings, that it may not be a precedent to a future suffer by such a precedent as this. Those preparliament in an ill reign, which I am satisfied cedents that have been urged, don't come near you would not do. I had some other thoughts, this point. And though the power of the parwhich I cannot recollect, &c. liament is above that of other courts, yet there hath been no precedent that comes up to this, That we should pass a bill to attaint sir J. F. because he will not give evidence, or there is no evidence against him. If sir J. F. be to be hanged, because there is but one evidence against him, any man in the world may; and then I think every man's life depends upon it, whether this house do like him or not. Consider what a reverse of opinion this will be, to what former parliaments have given in cases of the like nature. I think if this bill does pass, every man's life will be as precarious as his election.-We have been told, how much danger the government will be in, if this bill does not pass. I have as much zeal for this government as any man; but all the government is concerned, is, That a man that you think a traitor should live. And I do think the government is no more concerned in this life, than in the living of any Jacobite in England. But on the other hand, I think the lives and liberties of the subjects of England are concerned; and, by this bill, you will make all their lives and liberties precarious.--I am not for bringing the blood of sir J. F. upon me, or my posterity; nor can I consent for to make a precedent, that a man may be hanged without evidence.

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 as I do this, I have found myself mistaken. When a jury acts according to legal evidence,

Lord Cutts. 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 believe 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 him doubt of any thing that he does clearly and distinctly perceive: if otherwise, there is an