Mr. Jefferys. A worthy gentleman of the long robe hath taken pains to find out precedents to justify our proceedings; and another says, there is no act to circumscribe our proceedings. But since gentlemen differ so much, it gives me a great deal of caution. This I know, there is a law of the land, by which persons ought to be governed: I take this to be an extraordinary method of proceeding, and I hope the lords will take more care of the matter than the commons.

Mr. Ed. Harley, Sir, I can't satisfy myself to be for this bill; and in a few words, I shall give my reason for it. It hath been said, That the parliament is unlimited. I do agree, that we are not tied to the rules of WestminsterHall. I shall only mention the reason why two witnesses are required in cases of hightreason, If any will look into the history of England, they will find it hath been often the design of the crown to trump up plots upon the subject; and therefore these acts took particular care there should be two witnesses to prove the fact: This is the reason of the law, and, I think, upon it the liberty of the subject is founded; and therefore I can't be for this bill..

Then the question for passing this Bill was put, and the house divided. Ayes, 189; Noes, 156.

The Bill sent up to the Lords.] Being thus carried in the affirmative, the Bill was sent up to the lords for their concurrence. The lords took a very extraordinary method to force their absent members to come to town. They sent messengers for them, to bring them up; which seemed to be a great breach on their dignity; for the privilege of making a proxy was an undoubted right belonging to that pecrage; but those, who intended to throw out the Bill, resolved to have a full house. The Bill met with great opposition; and the debates were the warmest, and lusted the longest, of any that had ever been.

The substance of the arguments in the house of lords, brought against this way of proceed ing by Bill of Attainder, was, That the law was all men's security, as well as it ought to be their rule: If this was once broke through, no man was safe: Men would be presumed guilty, without legal proofs, and be run down, and destroyed by a torrent: Two witnesses seemed necessary, by an indisputable law of justice, to prove a man guilty: The law of God given to Moses, as well as the law of England, made this necessary: And, besides all former ones, the law, lately made for trials in cases of treason, was such a sacred one, that it was to be hoped, that even a parliament would not make a breach upon it. A written deposition was no evidence, because the person accused could not have the benefit of cross-interrogating the witness; by which much false swearing was often detected: Nor could the evidence, given in one trial, be brought against a man, who was not a party in that trial: The evidence, that was offered to a grand jury, was to be examined all over

again, at the trial; till that was done, it was not evidence. It did not appear, that Fenwick himself was concerned in the practice upon Porter: What his lady did, could not be charged on him. No evidence was brought, that Goodman was practised on; so his withdrawing himself could not be charged on Fenwick. Some very black things were proved against Goodman, which would be strong enough to set aside his testimony, though he were present; and that proof, which had been brought in Cooke's trial, against Porter's evidence, was again made use of, to prove, that, as he was the single witness, so he was a doubtful and suspected one: Nor was it proper, that a bill of this nature should begin in the house of commons, which could not take examinations upon oath. These were the arguments used by the lords, as well as the commons, against the bill.

On the other side, bishop Burnet being convinced, that Fenwick was guilty, and that the method of proceeding by way of attainder, was not only lawful, but, in some cases, necessary, and having, moreover, by his search into parliamentary proceedings, on such occasions, when he wrote the History of the Reformation, seen further into those matters than otherwise he should ever have done, he thought it incumbent upon him, when his opinion determined him to the severer side, to open his reasons in justification of his Vote; which he did, to this effect:

"The nature of government required, that the legislature should be recurred to, in extraordinary cases, for which effectual provision could not be made by fixed and standing laws. Our common law grew up out of the proceedings of the courts of law: Afterwards this, in cases of treason, was thought too loose; so the law, in this point, was limited, first, by the famous statute in Edw. 3d's time; and then, by the statute of Ed. 4th's time, the two witnesses were to be brought face to face with the person accused; and the law, lately made, had brought the method of treason to a yet further certainty. Yet, in that, as well as in the statute of Edw. 3, parliamentary proceedings were still excepted. And, indeed, though no such provision had been expressly made in the acts themselves, the nature of government puts always an exception in favour of the legislative authority. The legislature was, indeed, bound to observe justice and equity, as much, if not more, than the inferior courts; because the supreme court ought to set an example to all others. they might see cause to pass over forms, as occasion should require. This was the more reasonable among us, because there was no nation in the world, besides England, that had not recourse to torture, when the evidence was probable, but defective. That was a mighty restraint, and struck a terror into all people; and the freest government, both ancient and modern, thought they could not subsist without it. At present, the Venetians have their civil jurisdictions, and the Grisons have their high

Bus

courts of justice, which act without the forms of law, by the absolute trust, that is reposed in them; such as the Romans reposed in dictators, in the time of their liberty. England had neither torture, nor any unlimited magistrate in its constitution; and therefore, upon great emergencies, recourse must be had to the supreme legislature. Forms are necessary in subordinate cases; but there is no reason to tie up the supreme one by them. This method of attainder had been practised among us at all times. It is true, what was done in this way at one time, was often reversed at another; but that was the effect of the violence of the times, and was occasioned often by the injustice of those attainders. The attainders of inferior courts were, upon the like account, often reversed: But, when parliamentary attainders went upon good grounds, though without observing the - forms of law, they were never blamed, not to say condemned. When poisoning was first practised in England, and put in a pot of porridge in the bishop of Rochester's house, this, which was only felony, was, by a special law, made to be high-treason; and a new punishment was appointed by act of parliament. The poisoner was boiled alive. When the nun of Kent pretended to visions, to oppose Henry 8's divorce, and his second marriage; and said, If he married again, he should not live long after it, but should die a villain's death; this was judged in parliament to be high-treason; and she and her accomplices suffered accordingly. After that, there passed many attainders in that reign, only upon depositions, that were read in both houses of parliament. It is true, these were much blamed; and there was great cause for it: There were too many of them; for this extreme way of proceeding is to be put in practice but seldom, and upon great occasions; whereas many of these went upon slight grounds, such as the suffering some passionate and indecent words, or the using some embroidery in garments and coats of arms with an ill intent. But that, which was indeed execrable, was, that persons in prison were attainted, without being heard in their defence. This was so contrary to natural justice, that it could not be enough condemned. In Edward 6's time, the lord Seymour was attainted in the same manner, only with this difference, that the witnesses were brought to the bar, and there examined; whereas formerly they proceeded upon some depositions, that were read to them. At the duke of Somerset's trial, which was both for high-treason and for felony, in which he was acquitted of the treason, but found guilty of the felony, depositions were only read against him; but the witnesses were not brought face to face, as he pressed they might be. Upon which it was, that the following parliament enacted, that the accusers (that is, the witnesses) should be examined face to face, if they were In Elizabeth's time, the parliament went out of the method of law, in all the steps of their proceedings against the queen of Scots.

alive.

It is true, there were no parliamentary attainders in England during that long and glorious reign, upon which those, who opposed the bill, had insisted much; yet that was only, because there then was no occasion here in England for any such bill. But in Ireland, where some things were notoriously true, which yet could not be legally proved, that government was forced to have, ou many different occasions, recourse to this method. In James 1's time, those, who were concerned in the Gunpowder Plot, and chose to be killed, rather than taken, were by act of parliament attainted after their death; which the courts of law could not do, since, by our law, a man's crimes die with himself; for this reason, because he cannot make his own defence, nor can his children do it for him. The famous attainder of the earl of Strafford, in king Charles 1's time, has been much and justly censured, not so much because it passed by bill, as because of the injustice of it. He was accused for having said, upon the house of commons refusing to grant the subsidies, which the king had asked, That 'the king was absolved from all the rules of government, and might make use of force to subdue this kingdom.' These words were proved only by one witness, all the rest of the council, who were present, deposing, that they remembered no such words, and were positive, that the debate ran only upon the war with Scotland; so that though this kingdom,' singly taken, must be meant of England, yet it night well be meant of that kingdom,' which was the subject then of the debate. Since then the words were capable of that favourable sense, and that both he, who spoke them, and they, who heard them, affirmed, that they were meant and understood in that sense, it was a most pernicious precedent, first to take them in the most odious sense possible, and then to destroy him, who said them, upon the testimony of one single exceptionable witness. Whereas if, upon the commons refusing to grant the king's demand, he had plainly advised the king to subdue his people by force, it is hard to tell, what the parliament might not justly have done, or would not do again in the like case. In Charles 2's time some of the most eminent of the regicides were attainted, after they were dead; and in king James's time the duke of Monmouth was attainted by bill. These last attainders had their first beginning in the house of commons. Thus it appeared, that, these last two hundred years, not to mention much antienter precedents, the nation had upon extraordinary occasions proceeded in this parliamentary way by bill. There were also inany precedents of this method. And whereas it was said, that an ill parliament might carry these too far, it is certain, that the nation, and every person in it, must be safe, when they are in their own hands, or in those of a representative chosen by themselves. As, on the other hand, if that be ill chosen, there is no help for it; the nation must perish, for it is by their own fault. They have already too

many precedents for this way of proceeding, if they intend to make an ill use of them. But a precedent is only a ground or warrant for the e proceeding upon the like occasion. Two rules were laid down for all bills of this nature; first, that the matter be of a very extraordinary nature. Lesser crimes had better be passed over than punished by the legislature. Of ali the crimes, that can be contrived against the uation, certainly the most heinous one is, that of bringing in a foreign force to conquer us. This ruins both us and our posterity for ever. Distractions at home, how fatal soever, even though they should end ever so tragically, as ours once did in the murder of the king and in a nilitary usurpation, yet were capable of a crisis and a cure. In the year 1660, we came again to our wits, and all was set right again. Whereas there is no prospect, after a foreign conquest, but of slavery and misery. And, how black soever the assassinating a king must need appear, yet a foreign conquest is worse; it is assassinating the kingdom; and therefore the inviting and contriving that must be the blackest of crimes. But, as the importance of the matter ought to be equal to such an unusual way of proceeding, so the certainty of the facts ought to be such, that, if the detects in legal proof are to be supplied, yet this ought to be done upon such grounds, as make the fact charged appear so evidently true, that though a court of law could not proceed upon it, yet no man could raise in himself a doubt concerning it. Antiently treason was judged as a felony still is, upon such presumptions, as satisfied the jury. The law has now limited this to two witnesses brought face to face. But the parliament may still take that liberty, which is denied to inferior courts, of judging this matter, as an ord nary jury does in a case of felony. In the present case there was one witness viva voce, upon whose testimony several persons had been condemned, and had suffered; and these neither at their trial, nor at their death, disproved or denied any circumstance of his depositions. If he had been too much a libertine in the course of his life, that did not destroy his credit as a witness. In the first trial this might have made him a doubtful witness; but what had happened since had destroyed the possibility even of suspecting his evidence. A party had been in interest concerned to inquire into his whole life, and in the present case had full time for it; and every circumstance of his deposition had been examined; and yet nothing had been discovered, that could so much as create a doubt. All was still untouched, sound, and true. The only circumstance, in which the dying speeches of those, who suffered on his evidence, seemed to contradict him, was concerning king James's commission; yet none of them denied really what Porter had deposed, which was, that Charnock told him, that there was a commission come from king James for attacking the prince of Orange's guards. They only denied, that there was a commission for assassinating him. Sir John Friend and sir VOL. V.

Wm. Perkins were condemned for the consultation now given in evidence against sir John Fenwick. They died not denying it. On the contrary they justified all they had done. It could not be supposed, that, if there had been a tittle in the evidence that was false, they should both have been so far wanting to themselves and to their friends, who were to be tried upon the same evidence, as not to have declared it in the solemnest manner. These things were more undeniably certain than the evidence of ten witnesses could possibly be. Witnesses might conspire to swear a falshood; but, in this case, the circumstances took away the possibility of a doubt. And therefore the parliament, without taking any notice of Goodman's evidence, might well jude Fenwick guilty; for no man could doubt of it in his own mind. The antient Romans were very jealous of their liberty; but, how exact soever they might be in ordinary cases, yet, when any of their citizens seemed to have a design of making himself king, they either created a dictator, to suppress or destroy him, or else the people proceeded against him in a summary way. By the Porcian law, no citizen could be put to death for any crime whatsoever; yet such regard did the Romans pay to justice, even above law, that, when the Campanian legion had perfidiously broke in upon Rhegium, and pillaged it, they put them all to death for it. In the famous case of Cataline's conspiracy, as the evidence was clear, and the danger extreme, the accomplices in it were executed, notwithstanding the Porcian law. And this was done by the order of the senate, without either hearing them make their own defence, or admitting them to claim the right, which the Valerian law gave them, of an appeal to the people, yet that whole proceeding was chiefly directed by the two greatest as-erters of public liberty, that ever lived, Cato and Cicero. And Cæsar, who opposed it on pretence of its being against the Porcian law, was for that reason suspected of being in the confederacy. It appeared afterwards, how little regard he had, either to law or liberty, though, upon this occasion, he had made use of the one to protect those, who were in a plot against the other."

The Bill is passed by the Lords.] This last expression was much resented by those, who were against the Bill, as carrying a severe reflection upon them for opposing it; and indeed the bishop, though he only offered what reasons occurred to him to justify his voting for the bill, fell under a great load of censure on this occasion. In conclusion, the bill passed by a small majority of seven voices only, there being 68 for it, and 61 against it.

A List of the Lords for and against the Bill.

Bishops for the Bill.-Canterbury, Litchfield, Sarum, Chester, Ely, Oxon, Norwich, Peterborough, Gloucester, Bristol, Lincoln, Chichester.

Lords Temporal for the Bill.-Prince George, Norfolk, Southampton, Richmond, St. Albans,

4 E

Hereby the trust and good opinion of the people were so far lost, that those few who had any money to lend, shewed the greatest backwardness imaginable to bring it into the Exchequer, when they could stock-job it to so great advantage upon the Royal-Exchange; and therefore all Loans to the government were procured on exorbitant Premiums.

"All men were amazed and confounded at this obstruction to Trade and Credit, and hardly believed that the wit of man was able to find out an expedient, that could be effectual to retrieve so great a mischief. The nation is the more obliged to the wisdom, sagacity, and eloquence of Mr. Montague, Chancellor of the Exchequer, who animated the whole design, and projected the most likely methods to bring it to a happy effect. The 25th, the commons had Itesolved, That a Supply be granted to his majesty to make good the Deficiencies of Parliamentary Funds;' and afterwards ordered an Estimate to be laid before them, of what sums were, or would be wanting to satisfy and discharge all Principal and Interest due, or to become due on the several Aids, Duties, or funds, over and above all Arrears, standing out upon them which were determined; and besides all moneys to be raised by such as were then unexpired. And the computation of all the particular sums that were wanting to make good all the deficient funds, being inade, the whole amounted to 5,160,400/.

Having now got to the bottom of the disease, they resolved on a thorough cure. For being sensible, that had some Deficiencies been taken care of, and others neglected, public credit must have continued lame, and the government have halted, if it had not fallen to the ground; they judged it of absolute necessity to make provision for the whole; that so there should remain no tally without a fund, nor any tally on a deficient fund, but what in its course of payment should be satisfied and discharged. In order to this, they continued divers Duties arising not only by the Customs, but by continued and additional Impositions; Paper and Parchment, Births, Marriages, and Burials, Windows, the Subsidy of Tonnage and Poundage, after the day on which they would otherwise have expired, to the 1st of August, 1706. And appointed all the Moneys which should arise, and be brought into his majesty's exchequer from any of these Taxes or Duties, from the day on which they were otherwise to expire, to the said 1st of August, 1706, to be the general Fund for making good all the deficient ones, by the satisfaction and payment of the principal and interest due, or become due thereupon. And that all occasion of complaint might be removed, and equal provision made for all, the parliament directed that all moneys arising from the duties, so as before continued and appropriated for the general fund, should be distributed and applied to pay principal and interest upon every one of the deficient funds, in proportion to the sum of which they were deficient; and that all the money which should

be in such a due proportion distributed, or placed to the account of each deficient tax or fund, for the discharge of principal or interest, should be paid out to all who were entitled to receive the same, in such course and order, as if the same were moneys really arising by the respective deficient funds, and that without being diverted, misapplied, or postponed; and made the officers of his majesty's treasury liable to great penalties, in case this method were not observed. Moreover, to remove all doubts about the Security intended to be given, in case on the 1st of August, 1706, or within three months, then next ensuing, the whole produce of the several Funds and Revenues appropriated for a general Fund, together with other grants then in being, should not be suffi cient to discharge the sum of 5,160,400l. intended to be discharged; that then what was deficient, should be made good out of such Aids or Revenues, as should be granted in the next sessions of parliament. Thus the commons, by an admirable stroke of wisdom, as well as a noble act of public justice, provided a sufficient security for this great Debt that lay heavy on the nation; which was all that could be demanded or expected, at a time when money was not in being, and therefore not to be had. And because all the branches of Public Credit did plainly depend on, and mu tually support one another, the parliament took into consideration, by what means they might buoy up the Credit of the Bank of England, which was then ready to sink.

"In order to this, the parliament on Feb. 3d, agreed to augment the common capital Stock of the Bank of England, by admitting new Subscriptions; which new Subscriptions should be made good in Tallies and Bank-Notes. The proportion was four fifths of the first, and one fifth of the last, and an Interest of eight per cent. was allowed, as well for such Tallies that should be brought in, to enlarge their stock by subscription, as for those Tallies which the company was then possessed of; provided they did not exceed the value of those Bank-Notes, which should be paid in upon this engraftment on their stock; and for securing the payment of this Interest of eight per cent. The additional duty on Salt was afterwards granted and appropriated. The time of the continuance of the Bank of England, they thought fit to extend to the year 1710, and resolved likewise, that before the day was fixed for the beginning new Subscriptions, the old stock be made 100 per cent. and that what should exceed that value, should be divided among the old members: that all the Interest due on those Tallies which would be subscribed into the BankStock, at the time appointed for subscriptions, (to the end of the last preceding quarter, on each tally) be allowed as principal. That liberty be given by parliament to enlarge the number of Bank-Bills, to the value of the sum which should be so subscribed, over and above the 1,200,000l. provided they be obliged to answer such bills at demand; and in default thereof,