of sir John Fenwick, in which he and several other persons of quality were named; and desired that they might be brought up to the table and read; and that he might have an opportunity to justify himself, or if he did not, that he night fall under the censure of the house. And Mr. Secretary Trumbal being present, did say, That he had his majesty's leave to lay those Papers before the house; and if the house pleased, he would bring them up to the table. The said Papers were then delivered and read; after which it was ordered, That sir John Fenwick should be immediately sent for from Newgate; and that no persons should be allowed to speak, or deliver any Paper to him, or receive any from him by the way. Accordingly, being brought to the bar of the house, the Speaker informed him, the house expected a full Discovery of all he knew; which was of the more consequence, because in some of the said Papers he had asserted, king James thought himself sure of the Army by means of the lord Marlborough; and of the Fleet by means of Killegrew and Delaval. But not having the face to charge sir Cloudesly Shovel with disaffection, he owned Delaval and ་ ་་ Killegrew said, Shovel was not to be spoke to, but they would secure him, and let the French fleet sail by. He added, the lord Brudenel is out 6000l. That he did not write to king James in person, but his wife did. As to his own Correspondence with the abdicated king, he confessed he had two Letters from him, and no more; he said further, That being coming in his coach from Hyde-Park, he met General Talmash in his, in St. James's Street, that the latter beckoned to him to go into St. James's court; that they came out of their coaches and took a turn or two there, at which time Talmash whispered him, We shall serve both on the same side. He added farther, Brigadier Mayne promised to come over to king James's interest in Ireland; and he said, Indeed I wonder he did not. He confessed lieut. gen. Kirk had given king James the same assurances. That Sheerness was to be secured by the Deputy-Governor; that the lord Montgomery was in the Plot, and had been with him about it several times. That several great lords, as the duke of Shrewsbury, the earl of. Marlborough, the lord Godolphin, Admiral Russel, &c. had accepted of Pardons from king James. After which, being prest by the 6 time it lasts, to have you with me. And I But the king refused that, and would have.it have this only comfort now left, that my left to himself to judge of the truth and the death will make you easy. My dearest life, importance of the discoveries, which he should grieve not for me, but resign me to God's will. make. So, resolving to cast himself upon the You will hear, as soon as they bring me to king's mercy, he sent him a Paper, in which, town, where they put me, and then I would after a bare account of the consultations have a servant or somebody with me. I am among the Jacobites (in which he took care to interrupted, so I can say no more now. En-charge none of his own party) he said, that gage sir John Lowther, the new lord, who king James and those, who were employed by has more interest than any body. Let my him, had assured him, that the duke of Shrewslord Scarsdale engage Jermaine, to engage bury, the earl of Marlborough, the lord Go"Overkirk for me. Speak to my lord Arling- dolphin, and admiral Russel, were reconciled to ton. If my trial could be put off till the king him, and were now in his interests, and acting comes back, there would be more opportunity for him that the earl of Bath was to betray to solicit him.' Plymouth into the hands of the French king, and that commissary Crawford had sent over to France a list of the forces in England. This was a discovery, that could signify nothing but to give the king a jealousy of those persons; for he did not offer the least shadow or circuinstance, either of proof or of presumption, to support this accusation. The king, not being satisfied with this, sent an order for bringing him to a trial, unless he made fuller discoveries. He desired to be further examined by the lords justices, to whom he, being upon oath, told some more particulars; but he took care to name none of his own side except those, against whom evidence was already brought, or who were safe and beyond sea. Some few others he named, who were in matters of less consequence, that did not amount to high-treason. Ile owned a thread of negotiations, which had passed between them and king James, or the court of France. He said, that the earl of Aylesbury had gone over to France, and had been admitted to a private audience of the French king, in which he had proposed the sending over an army of 30,000 nien, aud had "This letter, being delivered to Mr. Webber, the companion of sir John Fenwick's flight, was intercepted by the mayor of Romney, and brought to the lords justices. Sir John, who was ignorant of the miscarriage, at the first examination before their excellencies, denied every thing, which he was charged with. But, the lords justices producing his letter, and telling him, he was not of the same mind, when he wrote it,' sir John was confounded, and made no reply, being utterly silenced by such a confession of his guilt, attested under his own hand.-Fenwick's design of getting a jury, or making friends to the king for a pardon, being found impracticable, there was another expedient suggested by the earl of Peterborough, who, though he had been a great instrument in the Revolution, yet, to gratify his private resentment, advised sir John to set up a counterplot, by impeaching several of the king's best friends, as guilty of conspiring against him. Accordingly sir John, in his private treaty with the duke of Devonshire, desired an assurance of life, upon his promise to tell all he knew. words, viz. It would not be the first time that people have repented their making their court to the government, at the hazard of the liberties of the people :' exceptions were taken to the same, and though he endeavoured to palliate and excuse them, a Resolution passed, That for the said Offence he should be com Speaker to make a sincere Confession, he complained, he had been very hardly dealt with, for whatever he had said, the Answer was still, "'tis not satisfactory. The house then resolved, "That the reflections contained in the said Papers on several noble peers, members, &c. were false, scandalous, and a contrivance to undermine the government, and create jealou-mitted to the Tower; where he was detained sies between the king and his people, in order to stifle the real Couspiracy." A motion was then made for leave to bring in a Bill to attaint sir John Fenwick of High-Treason; and after a debate the house divided, Yeas 179, Noes 61. Sir Thomas Trevor, then Attorney-General, was ordered to prepare and bring in the Bill. Nov. 7. The said Bill was read for the first time, and the question put for a second reading; upon which the house divided: Yeas 196, Noes 104; and Friday was appointed for the second reading: and that sir John should have a copy of the Bill, and of the Order, and be allowed pen, ink, and paper; and that Mr. Attorney and Mr. Solicitor should be ready to produce the Evidence against him that day. Mr. Manley, a Member, committed to the Tower.] In the course of this debate, Mr. Manley, a member, having dropt the following undertaken, that a great body of gentlemen and horses should be brought to join them. It appeared by his discoveries, that the Jacobites in England were much divided; some of whom were called Compounders, and others Noncompounders. The Compounders desired securities from king James for the preservation of the religion and liberties of England; whereas the others were for trusting him upon discretion, without asking any terms, putting all in his power, and relying intirely on his honour and generosity. These seemed indeed to act more suitably to the great principle, upon which they all insisted, that kings have their power from God, and are accountable only to him for the exercise of it. Dr. Lloyd, the deprived bishop of Norwich, was the only eminent clergyman, who went into this scheme; and therefore all that party had, upon Sancroft's death, recommended him to king James to have his nomination for Canterbury. Fenwick put all this in writing, upon assurance, that he should not be forced to witness any part of it. When that was sent to the king, all appearing to be so trifling, and no other proof being offered for any part of it, except his own word, which he had stipulated should not be made use of, sent an order to bring him to his trial. But, as the king was slow in sending this order, so the duke of Devonshire, who had been in the secret management of the matter, was for some time in the country. The lords justices delayed the matter till he came to town; and then the king's coming was so near, that it was respited till he arrived. By these delays sir John gained his main design, which was to practise upon the witnesscs. His lady began with captain Porter, who was ofered, that, if he would go beyond sca, he should have 300 till he petitioned the house to be enlarged. Debate concerning the Mace.] Nov. 13. Sir J. Fenwick was brought to the house, by order, from Newgate; and there being a very great company of strangers, both in the Lobby and Speaker's chamber; and the house being full of members, to prevent the inconvenience that such a number of people crowding in might occasion, the Lobby was ordered to be cleared of all persons that were not concerned, and also the Speaker's Chamber, and that the backdoor of the same should be locked, and the key laid upon the table: but it having beeg said, that the Lords did admit the members of this house to hear their debates; there was private intimation given the Serjeant to let them remain in the Speaker's Chamber, when others were removed. Then sir J. Fenwick was ordered to be guineas in hand, more to be remitted to him upon his first landing in France, with an assurance of king James's pardon, and likewise an annuity of 300l. a year, of which Fenwick. was to pay 100l. Captain Porter hearkened so far to the proposition, that he drew those, who were in treaty with him, together with the lady herself, who carried the sum, which he was to receive, to a meeting, where he had provided witnesses, who should overhear all that passed, and should, upon a signal, come in, and seize them with the money; which was done, and a prosecution upon it was ordered. The practice was fully proved, and the persons concerned in it were censured and punished. So captain Porter was no more to be dealt with. Mr. Cardell Goodman, who had been an actor, was the other witness. First, they gathered matter to defame hith, in which his course of life furnished them very copiously. But they trusted not to this method, and betook themselves to another, in which they prevailed more effectually. They persuaded him to go out of England; and by this means, when the last orders were given for Fenwick's Trial, there were not two witnesses against him; so that by the course of law he must have been acquitted. The whole was upon this kept intire for the session of parliament. Admiral Russel therefore, on the 6th of November, acquainted the house of commons, that his majesty had given leave to lay before them the several Papers, which had been given in by sir John Fenwick, in the nature of informations against himself and several other persons of quality; and he desired, that those papers might be read, that so he might have an opportunity to justify himself; or, if he did not, that he might fall under the censure of the house." Tindal. brought to the bar: but it being a proceeding of that nature, that none of the ancientest members could give a Precedent, it was necessary to settle some preliminaries; and the first Question that was moved, was, Whether the Mace ought to lie upon the table when sir J. Fenwick was in the house, or whether the Serjeant ought not to stand by him with it at the bar? Mr. Smith. Sir J. F. being a prisoner, the Mace ought to be at the bar, and then no member can speak. Mr. Boyle. This hearing, of any thing I can think of, is most like the hearing of an election; and then the mace is upon the table, and every one has liberty to speak and ask questions. Mr. Chanc. of Excheq. (Mr. Montague.) The mace ought not to be upon the table, because he is a prisoner: the sheriffs of London cannot have him in custody here, and so they deliver him into custody of the Serjeant. Mr. J. Howe. That argument would be good, if he could not be in custody of the Serjeant unless he had the mace in his hand. . Mr. Brotherton. The mace ought to be upon the table, because the Bill is to be read. Mr. Chr. Musgrave. The mace ought to be upon the table. Never any Bill was read but the mace was upon the table. Col. Granville. If the mace be not upon the table, it would be a great hardship to the members that they cannot speak, and a great hardship upon the prisoner that he cannot ask any questions. My lord Torrington was brought prisoner from the Tower, and upon account of his quality the house did not let him go to the bar: but while he was in the house, the mace was upon the table, and he gave an account of the whole Campaign; and every body was at liberty to ask what questions they pleased. Mr. Att. Gen. (Sir Tho. Trevor.) The matter is very new; and I think it is necessary you resolve upon the method before you call in the counsel, that you may acquaint the counsel with it; I think it not proper that the mace should be upon the table, because he is a prisoner; though it may not be necessary that the Serjeant should have it upon his shoulders all the time, but he may ease himself. I believe you will ask sir J. F. what he has to say, but no questions to make him accuse himself: and I humbly propose it to you, that after the counsel is called in, they may open the nature of the Evidence against sir J. F.; and then, whether you will permit them to go on, or they shall withdraw, and the house will consider what questions shall be asked. Col. Mordaunt. I hope the questions will be taken down upon a paper by the Speaker, and then read to us, that we may see if they be right, and so asked by the Speaker. Sir W. Williams. If the mace is not upon the table, our mouths are muzzled: we are in the nature of Judges; and shall we pass a vote that the judges shall not ask any questions? Sir Tho. Dyke. I can't be informed without asking of questions: I know not whether you are a house without it, without having the mace upon the table. And will you act in your highest capacity without being a house? When the duke of Leeds was here, the mace was upon the table. Mr. Boyle. I wish you had appointed a Committee to have settled the preliminaries, and that the Bill had not been brought in at all; what they labour, as a matter to avoid delay, may occasion more. For though, when you carry the mace to the table, no member should have the liberty to speak, yet any member hath liberty to desire that the counsel may withdraw, and then they must withdraw, and the mace must be brought upon the table. Chanc. of Excheq. That gentleman is certainly in the right: but I think the mace must not be upon the table till when the prisoner is here; and I think the questions must be asked by the Chair. The longest examinations that I remember was of the Admiralty, and then the questions were asked by the Chair. For the instance of my lord Torrington, it is true, he had not the mace with him, but he came at his own request, he came to give you an account of his proceedings; and in that case not a question was asked by any member; any member hath liberty to propose any question, but it must be asked by the Chair. 66 Afterwards the question was put, and it passed, " That sir John Fenwick should stand with the Mace at the Bar." Then a Question arose about reading of the Bill: some gentlemen said, it could not be read when the counsel was present, for the mace would be off the table; (and they seemed to be under a difficulty by having passed the last question;) others said, it was not necessary to read it whilst sir J. F. was present, he having had a copy of it; but at last it was thought reasonable, it being in the nature of a Charge upon him, that it should be read to him when present with his counsel; and it was said, it was done so in the Case of Indictments, though copies were delivered to them: but it should be read only as a matter of form, as a charge to which he was to answer; but it could not be reckoned a second reading, according to the rules of the house, the mace being off the table; and therefore it should be read again when the counsel and he was withdrawn. And it was said, that the Journals did take notice, that in some cases, as in the case of an adjourned debate, some Bills had been read four times; and so it was agreed, and that difficulty was solved. The Bill read to Sir John.] And the Serjeant took the mace, and brought sir J. Fenwick to the Bar; and counsel was admitted for him, and for the Bill, viz. Mr. Serj. Gould, King's Serjeant, and Mr. Recorder Lovel, likewise King's Serjeant. And sir Tho. Powis, and sir Barth. Shower, for sir John Fenwick. And the Speaker opened the matter thus: Mr. Speaker. Sir John Fenwick, the house jealousies between the king and his subjects, and to stifle the real conspiracy. And whereas 'Cordel Goodman, one of the witnesses against the said sir John Fenwick, to prove the said treason, lately and since the several times ap wick, at one of which times the said sir John Fenwick had been accordingly tried, had it 'not been for the expectation of the said dis'coveries so often promised, is withdrawn; so that the said Cordel Goodman cannot be had 'to give evidence upon any trial. Be it enacted by the king's most excellent majesty, by and 'with the advice and consent of the lords spi'ritual and temporal, and commons in this parliament assembled, and by the authority of the same, That the said sir John Fenwick is hereby convicted and attainted of high treason, and shall suffer the pains of death, and 'incur all forfeitures as a person attainted of 'high treason.' have received Information that you have been in a horrid Conspiracy against the life of his majesty, and for bringing in a French force to invade this kingdom, that you have been in dicted thereof; and they have considered the nature of the crime with which you standpointed for the trial of the said sir John Fencharged, and how destructive it would have been, if it had succeeded, to the very being of this kingdom; and therefore, that you may not go unpunished, if you are guilty, have ordered a Bill to be brought into this house to attaint you for High Treason, which hath been once read, and will be now read to you at the bar; and then you will hear the Evidence against you, and have liberty to make your Defence: and though you cannot claim any right thereto, this house (to shew how ready they are to favour you, in giving you any reasonable help to make your Defence) do allow you Counsel to assist you therein; and having granted you this their favour, they do expect that you will make a good use of it. I am likewise to acquaint those that are your Counsel, that this house do reckon their own prudence will so guide them, as not to give any just offence to this house; and that they will not be allowed to question the power of parliaments to pass Bills of Attainder, when they judge it requisite; of which this house is more proper to judge than any private person, and therefore they will not allow you to debate that point. Let the Bill be read. [Clerk of the house of commons reads.] Whereas sir John Fenwick, bart. was, upon the oaths of George Porter, esq. and Cordel Goodman, gent. at the sessions of Oyer and Terminer held for the city of London, on the 28th day of May, 1696, indicted of high treason, in compassing and imagining the death and destruction of his majesty, and adhering to his enemies, by consulting and agreeing ⚫ with several persons (whereof some have been already attainted, and others not yet brought to their trial for the said treason) at several meetings, to send Robert Charnock, since at'tainted and executed for high treason, in con'spiring to assassinate his majesty's sacred person, whom God long preserve, to the late king James in France, to invite and encourage the French king to invade this kingdom with an armed force, by promising to join with and assist him with men and arms upon such invasion. And whereas the said sir John Fenwick did obtain his majesty's favour to have his trial delayed from time to time, upon his repeated promises of making an ingenuous and full confession of his knowledge of any < design or conspiracy against his majesty's person or government, and of the persons therein concerned. And whereas he has so far abused his majesty's great clemency and indulgence therein, that, instead of making such confession he hath contrived and formed false and scandalous papers as his informations, reflecting on the fidelity of several noble peers, divers members of the house of commons, and others, only by hearsay; and contriving therein to undermine the government, and create 6 Mr. Serjeant Gould opens the Charge and the Evidence.] After the reading the Bill, Mr. Serjeant Gould opened the Charge and the Evidence; but for the Pleadings on each side, we refer the reader to the State-Trials. A Debate thereupon.] Sir John, and the Counsel on both sides, being withdrawn, a Debate arose, whether sir John should be allowed further time to produce his Witnesses? Mr. Speaker. Gentlemen, you have heard what is stood upon by the Counsel for sir John Fenwick: they say if you call only Evidence to prove the suggestions of the Bill, they are ready to answer them; but if you call any evidence to prove sir John Fenwick guilty of a Conspiracy, by living witnesses, they pretend they are not ready, and say, They did not know they should be allowed liberty to produce any Witnesses. Sir T. Littleton. The Counsel could not think that the Bill should set forth that sir J. F. was indicted, but that the house would know by what means; and that Goodman was gone away, and we should not enquire by what means. What are the objections by the counsel against the Bill? Say they, we are ready to give reasons against the bill; they do not say down-right against your jurisdiction: but, say they, we are ready to shew it is not reasonable in this case, as stand circunstances, to pass this Bill; Sir John's Petition was to be heard down-right against the Bill. If that was your intention to hear him to that and to that only, I conceive you would not have worded your Answer as you did: you ordered him Counsel to make his Defence: and at the same time ordered the king's counsel to produce the Evidence: How could they understand it, but to make Defence to the Evidence? It may be they have a mind to have another fee: Whether you will think fit, in the circumstances you stand, to give them further time, I do not know; But the circumstances of the kingdom, and the king's life, must be considered as well as sir J. E. What is the meaning that they are not prepared? I suppose it is to have further time; but I think your order is so plainly worded, that they could not ignorantly mistake it. Lord Norryes. I rise up to the matter of fact: that gentleman tells you your order is plainly worded; it is so, if they had timely notice of it: but the counsel at the bar tell you, they had no notice of this order till 10 last night. Mr. Speaker. That noble lord does mistake; for that which they say they had no notice of till last night, was, that sir J. F. should be brought hither; but the notice that he should be heard by his counsel for his Defence was sent him the day before. Lord Norryes. This very order, for his majesty's counsel to produce the Evidence, was made but upon Thursday. Mr. Speaker. Then I mistake. But the order that was made upon his Petition, I sent away immediately but the order they mean, I suppose, is that for the bringing him hither. Mr. Cowper. Say the counsel for sir J. F. We come prepared to make Defence to every thing charged in the preamble of the Bill, but what is not charged, we do not come prepared to make defence to. Now, they conceive the fact of High-Treason is not charged upon him by the Bill; and if true, it is of great weight; but as it is, it is none: for first, it is plain the preamble recites, that he was indicted for hightreason by the grand jury; that is a charge of high-treason within the bill; for it says, he was charged by the oaths of his country upon the oaths of two witnesses; and there is the very overt-act recited in the preamble of the bill. Now, allowing this its due weight, can any one think, that sits here as a private judge, that the high-treason thus recited, as found by the grand-jury, was no part of his charge? The very nature of the bill speaks; for could any one think, that you would ground a Bill of Attainder upon a suggestion, that he being indicted of high treason, had spirited away one of the king's evidence, or for giving false information? So that this is trifling with the house, with submission. guilt of sir J. F., he must have a fair trial in some place, and that he cannot have here upon oath; for upon all Bills of Attainders they have had a fair trial above. Mr. Smith. I always thought, when a Bill of Attainder was to pass through this house, that every man was concerned to hear what Evidence he could, to make it appear whether the person was guilty of the facts that were alledged against him to condemn him for; and I take it, the principal thing to be considered is, whether he be guilty of such a crime as deserves such a punishment; so that, I take it, the question now is, Whether sir J. F. hath had that notice to produce his evidence, as is convenient? For I think we should lose time to let counsel ramble upon the reasonableness of our proceedings; the question is, Whe ther he is guilty of the fact? Sir, I can never think the counsel could understand your order, when it says, to make his Defence, but it must be to the fact upon which he is to be condemned. You have already determined that point, as to his prevaricating, but that is not the matter that shall make me find him guilty: but the Evidence that will weigh with me is the evidence of high-treason, and how far they can answer it. Mr. Hooper. The question is, Whether or no there be a sufficient guilt laid to this man's charge? For in all courts of judicature this is a certain rule, You must proceed secundum aliegata et probata; and you shall not go about to prove a thing unless it be alledged. Now the question is, Whether this thing be alledged in the whole Bill, that sir J. F. is guilty of high-treason? And if not, you will go about to prove what is not alledged. It is true, it hath been alledged that a Bill hath been found; but several have been indicted who have been acquitted. It is possible the prisoner may be guilty; but I think we must observe that method here, that is observed every where else, and that is, not to go about to prove any thing that is not alledged. to their client; for it appears to be that part that is most sensibly like to affect him. Sir R. Temple. Can any body say any thing Mr. Clerk. The learned gentleman bath of the intention of the house, when it is reduced made an objection that perhaps would hold into a Bill? Is it not the bill that he is to make very well in Westminster-1all: but I suppose his defence to? and the gentleman that spake, he may remember this Bill must have a second says that nobody could think otherwise: Why, reading before you, as a house; and then persir, nobody is to think otherwise than the Biti haps the allegations may be different from what states it. Now the thing before you is, Whe- they are now. But the principal matter Iefore ther upon the suggestions of this Bill it is fit for you is, Whether this gentleman be guilty of you to pass it? The Case of Mortimer was, high-treason, or no? And if they did not preThat be made his escape, being under an In-pare to that part, I think they were negligent dictment of Iligh-Treason; and it came before the house, Whether, upon the statute of 25 E. Srd it was High-Treason? But they did not de- Mr. Howe. The more I hear the matter debate the fact. Now you have brought a bill bated, the more it seems strange to me. I here, and all the ground is, that he was indic-bave heard the Bill read, and took notice of the ed for high-treason, bad thus and thus prevari-heads of it: I always understood the preamble cate !, and delayed his Trial upon promises of of the Bill to be the inducement to the end of Confession; and in conclusion, one of the wit-it: I was mightily surprised to hear the king's nesses is withdrawn: Sir, no man is to make his Defence but to what is in the bill; nor can you examine to any thing but what is suggested in the bill. If you had put the issue upon the counsel attempt to make good-I think they did not speak materially to one point of the allegations in the Bill, so that the allegations do signify nothing; or else, if they intended these |