SIR JOHN FENWICK IS APPREHENDED, CONDEMNED, AND BEHEADED.

The public credit being thus bolstered up by the singular address of Mr. Montague, and the bills passed for the supplies of the ensuing year, the attention of the commons was transferred to the case of sir John Fen-wick, who had been apprehended in the month of June at New Romney, in his way to France. He had when taken written a letter to his lady by one Webber, who accompanied him; but this man being seized, the letter was found, containing such a confession as plainly evinced him guilty. He then entered into a treaty with the court for turning evidence, and delivered a long information in writing, which was sent abroad to his majesty. He made no discoveries that could injure any of the Jacobites, who, by his account, and other concurring testimonies, appeared to be divided into two parties, known by the names of compounders and non-com-pounders. The first, headed by the earl of Middleton, insisted upon receiving security from king James that the religion and liberties of England should be preserved; whereas the other party, at the head of which was the earl of Melfort, resolved to bring him in without conditions, relying upon his own honour and generosity. King William having sent over an order for bringing Fenwick to trial, unless he should make more material discoveries, the prisoner, with a view to amuse the ministry until he could take other measures for his own safety, accused the earls of Shrewsbury, Marlborough, and Bath, the lord Godolphin, and admiral Russel, of having made their peace with king James, and engaged to act for his interest. Meanwhile his lady and relations tampered with the two witnesses, Porter and Goodman. The first of these discovered those practices to the government; and one Clancey, who acted as agent for lady Fenwick, was tried, convicted of subornation, fined, and set in the pillory; but they had succeeded better in their attempts upon Goodman, who disappeared; so that one witness only remained, and Fenwick began to think his life was out of danger. Admiral Russel acquainted the house of commons that he and several persons of quality had been reflected upon in some informations of sir John Fenwick; he therefore desired that he might have an opportunity to justify his own character. Mr. secretary Trumball produced the papers, which having been read, the commons ordered that sir John Fenwick should be brought to the bar of the house. There he was exhorted by the speaker to make an ample discovery; which, however, he declined, except with the proviso that he should first receive some security that what he might say should not prejudice himself. He was ordered to withdraw until they should have deliberated on his request. Then he was called in again, and the speaker told him that he might deserve the favour of the house by making a full discovery. He desired he might be indulged with a little time to recollect himself, and promised to obey the command of the house. This favour being denied, he again insisted upon having security; which they refusing to grant, he chose to be silent, and was dismissed from the bar. The house voted that his informations reflecting upon the fidelity of several noblemen, members of the house, and others, upon hearsay, were false and scandalous, contrived to undermine the government, and create jealousies between the king and his subjects in order to stifle the conspiracy.

A motion being made for leave to bring in a bill to attaint him of high treason, a warm debate ensued, and the question being put, was carried in the affirmative by a great majority. He was furnished with a copy of the bill, and allowed the use of pen, ink, paper, and counsel. When he presented a petition praying that his counsel might be heard against passing the bill, they made an order that his counsel should be allowed to make his defence at the bar of the house; so that he was surprised into an irregular trial, instead of being indulged with an opportunity of offering objections to their passing the bill of attainder. He was accordingly brought to the bar of the house; and the bill being read in his hearing, the speaker called upon the king’s counsel to open the evidence. The prisoner’s counsel objected to their proceeding to trial, alleging that their client had not received the least notice of their purpose, and therefore could not be prepared for his defence; but that they came to offer their reasons against the bill. The house, after a long debate, resolved, that he should be allowed further time to produce witnesses in his defence; that the counsel for the king should likewise be allowed to produce evidence to prove the treasons of which he stood indicted; and an order was made for his being brought to the bar again in three days. In pursuance of this order he appeared, when the indictment which had been found against him by the grand jury was produced; and Porter was examined as an evidence. Then the record of Clancey’s conviction was read; and one Roe testified that Deighton, the prisoner’s solicitor, had offered him an annuity of one hundred pounds to discredit the testimony of Goodman. The king’s counsel moved, that Goodman’s examination, as taken by Mr. Vernon, clerk of the council, might be read. Sir J. Powis and sir Bartholomew Shower, the prisoner’s counsel, warmly opposed this proposal; they affirmed that a deposition taken when the party affected by it was not present to cross-examine the deposer, could not be admitted in a case of five shillings value; that though the house was not bound by the rules of inferior courts, it was nevertheless bound by the eternal and unalterable rules of justice; that no evidence, according to the rules of law, could be admitted in such a case but that of living witnesses; and that the examination of a person who is absent was never read to supply his testimony. The dispute between the lawyers on this subject gave rise to a very violent debate among the members of the house. Sir Edward Seymour, sir Richard Temple, Mr. Harley, Mr. Harcourt, Mr. Manly, sir Christopher Musgrave, and all the leaders of the tory party, argued against the hardship and injustice of admitting this information as an evidence. They demonstrated that it would be a step contrary to the practice of all courts of judicature, repugnant to the common notions of justice and humanity, diametrically opposite to the last act for regulating trials in cases of high treason, and of dangerous consequences to the lives and liberties of the people. On the other hand, lord Cutts, sir Thomas Lyttleton, Mr. Montague, Mr. Smith of the treasury, and Trevor the attorney-general, affirmed that the house was not bound by any form of law whatsoever; that this was an extraordinary case in which the safety of the government was deeply concerned; that though the common law might require two evidences in cases of treason, the house had a power of deviating from those rules in extraordinary cases; that there was no reason to doubt of sir John Fenwick’s being concerned in the conspiracy; that he or his friends had tampered with Porter; and that there were strong presumptions to believe the same practices had induced Goodman to abscond. In a word, the tories, either from party or patriotism, strenuously asserted the cause of liberty and humanity by those very arguments which had been used against them in the former reigns; while the wings, with equal violence and more success, espoused the dictates of arbitrary power and oppression, in the face of their former principles, with which they were now upbraided. At length the question was put, whether or not the information of Goodman should be read? and was carried in the affirmative by a majority of seventy-three voices. Then two of the grand jury who had found the indictment, recited the evidence which had been given to them by Porter and Goodman; lastly, the king’s counsel insisted upon producing the record of Cooke’s conviction, as he had been tried for the same conspiracy. The prisoner’s counsel objected, that if such evidence was admitted, the trial of one person in the same company would be the trial of all; and it could not be expected that they who came to defend sir John Fenwick only, should be prepared to answer the charge against Cooke. This article produced another vehement debate among the members; and the whigs obtained a second victory. The record was read, and the king’s counsel proceeded to call some of the jury who served on Cooke’s trial to affirm that he had been convicted on Goodman’s evidence. Sir Bartholomew Shower said he would submit it to the consideration of the house, whether it was just that the evidence against one person should conclude against another standing at a different bar, in defence of his life? The parties were again ordered to withdraw; and from this point arose a third debate, which ended as the two former to the disadvantage of the prisoner. The jury being examined, Mr. Sergeant Gould moved, that Mr. Vernon might be desired to produce the intercepted letter from sir John Fenwick to his lady. The prisoner’s counsel warmly opposed this motion, insisting upon their proving it to be his hand writing before it could be used against him; and no further stress was laid on this evidence. When they were called upon to enter on his defence, they pleaded incapacity to deliver matters of such importance after they had been fatigued with twelve hours’ attendance. The house resolved to hear such evidence as the prisoner had to produce that night. His counsel declared that they had nothing then to produce but the copy of a record; and the second resolution was, that he should be brought up again next day at noon. He accordingly appeared at the bar, and sir J. Powis proceeded on his defence. He observed that the bill under consideration affected the lives of the subjects; and such precedents were dangerous; that sir John Fenwick was forthcoming in order to be tried by the ordinary methods of justice; that he was actually under process, had pleaded, and was ready to stand trial; that if there was sufficient clear evidence against him, as the king’s sergeant had declared, there was no reason for his being deprived of the benefit of such a trial as was the birthright of every British subject; and if there was a deficiency of legal evidence, he thought this was a very odd reason for the bill. He took notice that even the regicides had the benefit of such a trial; that the last act for regulating trials in cases of treason proved the great tenderness of the laws which affected the life of the subject; and he expressed his surprise that the very parliament which had passed that law should enact another for putting a person to death without any trial at all. He admitted that there had been many bills of attainder, but they were generally levelled at outlaws and fugitives; and some of them had been reversed in the sequel as arbitrary and unjust. He urged that this bill of attainder did not allege or say that sir John Fenwick was guilty of the treason for which he had been indicted; a circumstance which prevented him from producing witnesses to that and several matters upon which the king’s counsel had expatiated. He said they had introduced evidence to prove circumstances not alleged in the bill, and defective evidence of those that were; that Porter was not examined upon oath; that nothing could be more severe than to pass sentence of death upon a man, corrupt his blood, and confiscate his estate, upon parole evidence; especially of such a wretch who, by his own confession, had been engaged in a crime of the blackest nature, not a convert to the dictates of conscience, but a coward, shrinking from the danger by which he had been environed, and even now drudging for a pardon. He invalidated the evidence of Goodman’s examination. He observed that the indictment mentioned a conspiracy to call in a foreign power; but as this conspiracy had not been put in practice, such an agreement was not a sufficient overt-act of treason, according to the opinion of Hawles the solicitor-general, concerned in this very prosecution. So saying, he produced a book of remarks which that lawyer had published on the cases of lord Russel, colonel Sidney, and others, who had suffered death in the reign of Charles II. This author, said he, takes notice, that a conspiracy or agreement to levy war is not treason without actually levying war; a sentiment in which he concurred with lord Coke, and lord chief-justice Hales. He concluded with saying, “We know at present on what ground we stand; by the statute of Edward III. we know what treason is; by the two statutes of Edward VI. and the late act, we know what is proof; by the Magna Charta we know we are to be tried per legem terræ el per judicium parium, by the law of the land and the judgment of our peers; but if bills of attainder come into fashion, we shall neither know what is treason, what is evidence, nor how nor where we are to be tried.” He was seconded by sir Bartholomew Shower, who spoke with equal energy and elocution; and their arguments were answered by the king’s counsel. The arguments in favour of the bill imported that the parliament would not interpose except in extraordinary cases; that here the evidence necessary in inferior courts being defective, the parliament, which was not tied down by legal evidence, had a right to exert their extraordinary power in punishing an offender, who would otherwise escape with impunity; that as the law stood, he was but a sorry politician that could not ruin the government, and yet elude the statute of treason; that if a plot, after being discovered, should not be thoroughly prosecuted, it would strengthen and grow upon the administration, and probably at length subvert the government; that it was notorious that parties were forming for king James; persons were plotting in every part of the kingdom, and an open invasion was threatened; therefore this was a proper time for the parliament to exert their extraordinary power; that the English differed from all other nations in bringing the witnesses and the prisoner face to face, and requiring two witnesses in cases of treason; nor did the English law itself require the same proof in some cases as in others, for one witness was sufficient in felony, as well as for the treason of coining; that Fenwick was notoriously guilty, and deserved to feel the resentment of the nation; that he would have been brought to exemplary punishment in the ordinary course of justice, had he not eluded it by corrupting evidence and withdrawing a witness. If this reasoning be just, the house of commons has a right to act in diametrical opposition to the laws in being; and is vested with a despotic power over the lives and fortunes of their constituents, for whose protection they are constituted. Let us therefore reflect upon the possibility of a parliament debauched by the arts of corruption into servile compliance with the designs of an arbitrary prince, and tremble for the consequence. The debate being finished, the prisoner was, at the desire of admiral Russel, questioned with regard to the imputations he had fixed upon that gentleman and others from hearsay; but he desired to be excused on account of the risk he ran while under a double prosecution, if any thing which should escape him might be turned to his prejudice.

After he was removed from the bar, Mr. Vernon, at the desire of the house, recapitulated the arts and practices of sir John Fenwick and his friends to procrastinate the trial. The bill was read a second time; and the speaker asking, If the question should be put for its being committed? the house was immediately kindled into a new flame of contention. Hawles, the solicitor-general, affirmed that the house in the present case should act both as judge and jury. Mr. Harcourt said he knew of no trial for treason but what was confirmed by Magna Charta, by a jury, the birthright and darling privilege of an Englishman, or per legem terræ, which includes impeachments in parliament; that it was a strange trial where the person accused had a chance to be hanged, but none to be saved; that he never heard of a juryman who was not on his oath, nor of a judge who had not power to examine witnesses upon oath, and who was not empowered to save the innocent as well as to condemn the guilty. Sir Thomas Lyttleton was of opinion that the parliament ought not to stand upon little niceties and forms of other courts when the government was at stake. Mr. Howe asserted that to do a thing of this nature, because the parliament had power to do it, was a strange way of reasoning; that what was justice and equity at Westminster-hall, was justice and equity every where; that one bad precedent in parliament was of worse consequence than an hundred in Westminster-hall, because personal or private injuries did not foreclose the claims of original right; whereas the parliament could ruin the nation beyond redemption, because it could establish tyranny by law. Sir Richard Temple, in arguing against the bill, observed that the power of parliament is to make any law, but the jurisdiction of parliament is to govern itself by the law; to make a law, therefore, against all the laws in England was the ultimum remedium et pessimum, never to be used but in case of absolute necessity. He affirmed that by this precedent the house overthrew all the laws of England; first, in condemning a man upon one witness; secondly, in passing an act without any trial. The commons never did nor can assume a jurisdiction of trying any person: they may for their own information hear what can be offered; but it is not a trial where witnesses are not upon oath. All bills of attainder have passed against persons that were dead or fled, or without the compass of the law: some have been brought in after trials in Westminster-hall; but none of those have been called trials, and they were generally reversed. He denied that the parliament had power to declare anything treason which was not treason before. When inferior courts were dubious, the case might be brought before parliament to judge whether it be treason or felony; but then they must judge by the laws in being, and this judgment was not in the parliament by bill but only in the house of lords. Lord Digby, Mr. Harley, and colonel Granville, spoke to the same purpose. But their arguments and remonstrances had no effect upon the majority, by whom the prisoner was devoted to destruction. The bill was committed, passed, and sent up to the house of lords, where it produced the longest and warmest debates which had been known since the Restoration. Bishop Burnet signalized his zeal for the government by a long speech in favour of the bill, contradicting some of the fundamental maxims which he had formerly avowed in behalf of the liberties of the people. At length it was carried by a majority of seven voices; and one-and-forty lords, including eight prelates, entered a protest couched in the strongest terms against the decision.

When the bill received the royal assent, another act of the like nature passed against Barclay, Holmes, and nine other conspirators who had fled from justice, in case they should not surrender themselves on or before the twenty-fifth day of March next ensuing. Sir John Fenwick solicited the mediation of the lords in his behalf, while his friends implored the royal mercy. The peers gave him to understand that the success of his suit would depend upon the fulness of his discoveries. He would have previously stipulated for a pardon, and they insisted upon his depending on their favour. He hesitated some time between the fears of infamy and the terrors of death, which last he at length chose to undergo rather than incur the disgraceful character of an informer. He was complimented with the axe in consideration of his rank and alliance with the house of Howard, and suffered on Tower-hill with great composure. In the paper which he delivered to the sheriff, he took God to witness that he knew not of the intended invasion until it was the common subject of discourse, nor was he engaged in any shape for the service of king James. He thanked those noble and worthy persons who had opposed his attainder in parliament; protested before God that the information he gave to the ministry he had received in letters and messages from France; and observed that he might have expected mercy from the prince of Orange, as he had been instrumental in saving his life by preventing the execution of a design which had been formed against it—a circumstance which in all probability induced the late conspirators to conceal their purpose of assassination from his knowledge. He professed his loyalty to king James, and prayed heaven for his speedy restoration.