did not seem to know its own strength, until it was put to this extraordinary trial: and the experiment of mortgaging funds succeeded so well, that later ministers have proceeded in the same system, imposing burden upon burden, as if they thought the sinews of the nation could never be overstrained.

§ XLI. The public credit being thus bolstered up by the singular address of Mr. Montagu, and the bills passed for the supplies of the ensuing year, the attention of the commons was transferred to the case of sir John Fenwick, who had been apprehended in the month of June at News Romney, in his way to France. He had, when taken, writ ten 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 noncompounders. 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 Fen

Admiral

wick began to think his life was out of danger. 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 Trumbal 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, he might deserve the favour of the house, by making a full discovery. He desired he might be indulged with a litttle 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.

§ XLII. 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 make 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, al

leging, 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 Dighton, 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 crossexamine 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 Lyttel ton, Mr. Montagu, Mr. Smith of the treasury, and Trevor, VOL. I.

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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 whigs, 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 handwriting 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.

§ XLIII. 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 evi