No More Learning

The distress which began on the fourth of May 1696, which was almost
insupportable during the five succeeding months, and which became
lighter from the day on which the Commons declared their immutable
resolution to maintain the old standard, ceased to be painfully felt in
March 1697. Some months were still to elapse before credit completely
recovered from the most tremendous shock that it has ever sustained. But
already the deep and solid foundation had been laid on which was to rise
the most gigantic fabric of commercial prosperity that the world had
ever seen. The great body of the Whigs attributed the restoration of the
health of the State to the genius and firmness of their leader Montague.
His enemies were forced to confess, sulkily and sneeringly, that every
one of his schemes had succeeded, the first Bank subscription, the
second Bank subscription, the Recoinage, the General Mortgage, the
Exchequer Bills. But some Tories muttered that he deserved no more
praise than a prodigal who stakes his whole estate at hazard, and has
a run of good luck. England had indeed passed safely through a terrible
crisis, and was the stronger for having passed through it. But she had
been in imminent danger of perishing; and the minister who had exposed
her to that danger deserved, not to be praised, but to be hanged. Others
admitted that the plans which were popularly attributed to Montague were
excellent, but denied that those plans were Montague's. The voice of
detraction, however, was for a time drowned by the loud applauses of
the Parliament and the City. The authority which the Chancellor of
the Exchequer exercised in the House of Commons was unprecedented and
unrivalled. In the Cabinet his influence was daily increasing. He had no
longer a superior at the Board of Treasury. In consequence of Fenwick's
confession, the last Tory who held a great and efficient office in the
State had been removed, and there was at length a purely Whig Ministry.

It had been impossible to prevent reports about that confession from
getting abroad. The prisoner, indeed, had found means of communicating
with his friends, and had doubtless given them to understand that he
had said nothing against them, and much against the creatures of the
usurper. William wished the matter to be left to the ordinary tribunals,
and was most unwilling that it should be debated elsewhere. But his
counsellors, better acquainted than himself with the temper of large
and divided assemblies, were of opinion that a parliamentary discussion,
though perhaps undesirable, was inevitable. It was in the power of a
single member of either House to force on such a discussion; and in both
Houses there were members who, some from a sense of duty, some from mere
love of mischief, were determined to know whether the prisoner had,
as it was rumoured, brought grave charges against some of the most
distinguished men in the kingdom. If there must be an inquiry, it was
surely desirable that the accused statesmen should be the first to
demand it. There was, however, one great difficulty. The Whigs, who
formed the majority of the Lower House, were ready to vote, as one man,
for the entire absolution of Russell and Shrewsbury, and had no wish to
put a stigma on Marlborough, who was not in place, and therefore excited
little jealousy. But a strong body of honest gentlemen, as Wharton
called them, could not, by any management, be induced to join in a
resolution acquitting Godolphin. To them Godolphin was an eyesore. All
the other Tories who, in the earlier years of William's reign, had
borne a chief part in the direction of affairs, had, one by one, been
dismissed. Nottingham, Trevor, Leeds, were no longer in power. Pembroke
could hardly be called a Tory, and had never been really in power. But
Godolphin still retained his post at Whitehall; and to the men of the
Revolution it seemed intolerable that one who had sate at the Council
Board of Charles and James, and who had voted for a Regency, should be
the principal minister of finance. Those who felt thus had learned with
malicious delight that the First Lord of the Treasury was named in
the confession about which all the world was talking; and they were
determined not to let slip so good an opportunity of ejecting him from
office. On the other hand, every body who had seen Fenwick's paper, and
who had not, in the drunkenness of factious animosity, lost all sense
of reason and justice, must have felt that it was impossible to make
a distinction between two parts of that paper, and to treat all that
related to Shrewsbury and Russell as false, and all that related to
Godolphin as true. This was acknowledged even by Wharton, who of all
public men was the least troubled by scruples or by shame. [748] If
Godolphin had stedfastly refused to quit his place, the Whig leaders
would have been in a most embarrassing position. But a politician of no
common dexterity undertook to extricate them from their difficulties.
In the art of reading and managing the minds of men Sunderland had no
equal; and he was, as he had been during several years, desirous to
see all the great posts in the kingdom filled by Whigs. By his skilful
management Godolphin was induced to go into the royal closet, and to
request permission to retire from office; and William granted that
permission with a readiness by which Godolphin was much more surprised
than pleased. [749]

One of the methods employed by the Whig junto, for the purpose of
instituting and maintaining through all the ranks of the Whig party a
discipline never before known, was the frequent holding of meetings of
members of the House of Commons. Some of those meetings were numerous;
others were select. The larger were held at the Rose, a tavern
frequently mentioned in the political pasquinades of that time; [750]
the smaller at Russell's in Covent Garden, or at Somers's in Lincoln's
Inn Fields.

On the day on which Godolphin resigned his great office two select
meetings were called. In the morning the place of assembly was Russell's
house. In the afternoon there was a fuller muster at the Lord Keeper's.
Fenwick's confession, which, till that time, had probably been known
only by rumour to most of those who were present, was read. The
indignation of the hearers was strongly excited, particularly by one
passage, of which the sense seemed to be that not only Russell, not only
Shrewsbury, but the great body of the Whig party was, and had long
been, at heart Jacobite. "The fellow insinuates," it was said, "that the
Assassination Plot itself was a Whig scheme. " The general opinion was
that such a charge could not be lightly passed over. There must be a
solemn debate and decision in Parliament. The best course would be that
the King should himself see and examine the prisoner, and that Russell
should then request the royal permission to bring the subject before the
House of Commons. As Fenwick did not pretend that he had any authority
for the stories which he had told except mere hearsay, there could be no
difficulty in carrying a resolution branding him as a slanderer, and an
address to the throne requesting that he might be forthwith brought to
trial for high treason. [751]

The opinion of the meeting was conveyed to William by his ministers;
and he consented, though not without reluctance, to see the prisoner.
Fenwick was brought into the royal closet at Kensington. A few of
the great officers of state and the Crown lawyers were present. "Your
papers, Sir John," said the King, "are altogether unsatisfactory.
Instead of giving me an account of the plots formed by you and your
accomplices, plots of which all the details must be exactly known to
you, you tell me stories, without authority, without date, without
place, about noblemen and gentlemen with whom you do not pretend to
have had any intercourse. In short your confession appears to be a
contrivance intended to screen those who are really engaged in designs
against me, and to make me suspect and discard those in whom I have good
reason to place confidence. If you look for any favour from me, give me,
this moment and on this spot, a full and straightforward account of
what you know of your own knowledge. " Fenwick said that he was taken
by surprise, and asked for time. "No, Sir," said the King. "For what
purpose can you want time? You may indeed want time if you mean to draw
up another paper like this. But what I require is a plain narrative of
what you have yourself done and seen; and such a narrative you can give,
if you will, without pen and ink. " Then Fenwick positively refused to
say any thing. "Be it so," said William. "I will neither hear you nor
hear from you any more. " [752] Fenwick was carried back to his prison.
He had at this audience shown a boldness and determination which
surprised those who had observed his demeanour. He had, ever since he
had been in confinement, appeared to be anxious and dejected; yet now,
at the very crisis of his fate, he had braved the displeasure of
the Prince whose clemency he had, a short time before, submissively
implored. In a very few hours the mystery was explained. Just before
he had been summoned to Kensington, he had received from his wife
intelligence that his life was in no danger, that there was only
one witness against him, that she and her friends had succeeded in
corrupting Goodman. [753]

Goodman had been allowed a liberty which was afterwards, with some
reason, made matter of charge against the government. For his testimony
was most important; his character was notoriously bad; the attempts
which had been made to seduce Porter proved that, if money could save
Fenwick's life, money would not be spared; and Goodman had not, like
Porter, been instrumental in sending Jacobites to the gallows, and
therefore was not, like Porter, bound to the cause of William by an
indissoluble tie. The families of the imprisoned conspirators employed
the agency of a cunning and daring adventurer named O'Brien. This
man knew Goodman well. Indeed they had belonged to the same gang of
highwaymen. They met at the Dog in Drury Lane, a tavern which was
frequented by lawless and desperate men. O'Brien was accompanied by
another Jacobite of determined character. A simple choice was offered to
Goodman, to abscond and to be rewarded with an annuity of five hundred
a year, or to have his throat cut on the spot. He consented, half from
cupidity, half from fear. O'Brien was not a man to be tricked as Clancy
had been. He never parted company with Goodman from the moment when the
bargain was struck till they were at Saint Germains. [754]

On the afternoon of the day on which Fenwick was examined by the King at
Kensington it began to be noised abroad that Goodman was missing. He had
been many hours absent from his house. He had not been seen at his usual
haunts. At first a suspicion arose that he had been murdered by
the Jacobites; and this suspicion was strengthened by a singular
circumstance. Just after his disappearance, a human head was found
severed from the body to which it belonged, and so frightfully mangled
that no feature could be recognised. The multitude, possessed by the
notion that there was no crime which an Irish Papist might not be found
to commit, was inclined to believe that the fate of Godfrey had befallen
another victim. On inquiry however it seemed certain that Goodman had
designedly withdrawn himself. A proclamation appeared promising a reward
of a thousand pounds to any person who should stop the runaway; but it
was too late. [755]

This event exasperated the Whigs beyond measure. No jury could now find
Fenwick guilty of high treason. Was he then to escape? Was a long series
of offences against the State to go unpunished merely because to those
offences had now been added the offence of bribing a witness to suppress
his evidence and to desert his bail? Was there no extraordinary method
by which justice might strike a criminal who, solely because he was
worse than other criminals, was beyond the reach of the ordinary law?
Such a method there was, a method authorised by numerous precedents, a
method used both by Papists and by Protestants during the troubles of
the sixteenth century, a method used both by Roundheads and by Cavaliers
during the troubles of the seventeenth century, a method which scarcely
any leader of the Tory party could condemn without condemning himself, a
method of which Fenwick could not decently complain, since he had, a few
years before, been eager to employ it against the unfortunate Monmouth.
To that method the party which was now supreme in the State determined
to have recourse.

Soon after the Commons had met, on the morning of the sixth of November,
Russell rose in his place and requested to be heard. The task which he
had undertaken required courage not of the most respectable kind; but to
him no kind of courage was wanting. Sir John Fenwick, he said, had sent
to the King a paper in which grave accusations were brought against some
of His Majesty's servants; and His Majesty had, at the request of his
accused servants, graciously given orders that this paper should be
laid before the House. The confession was produced and read. The Admiral
then, with spirit and dignity worthy of a better man, demanded justice
for himself and Shrewsbury. "If we are innocent, clear us. If we are
guilty, punish us as we deserve. I put myself on you as on my country,
and am ready to stand or fall by your verdict. "

It was immediately ordered that Fenwick should be brought to the
bar with all speed. Cutts, who sate in the House as member for
Cambridgeshire, was directed to provide a sufficient escort, and was
especially enjoined to take care that the prisoner should have no
opportunity of making or receiving any communication, oral or written,
on the road from Newgate to Westminster. The House then adjourned till
the afternoon.

At five o'clock, then a late hour, the mace was again put on the table;
candles were lighted; and the House and lobby were carefully cleared of
strangers. Fenwick was in attendance under a strong guard. He was called
in, and exhorted from the chair to make a full and ingenuous confession.
He hesitated and evaded. "I cannot say any thing without the King's
permission. His Majesty may be displeased if what ought to be known only
to him should be divulged to others. " He was told that his apprehensions
were groundless. The King well knew that it was the right and the duty
of his faithful Commons to inquire into whatever concerned the safety of
his person and of his government. "I may be tried in a few days," said
the prisoner. "I ought not to be asked to say any thing which may rise
up in judgment against me. " "You have nothing to fear," replied the
Speaker, "if you will only make a full and free discovery. No man
ever had reason to repent of having dealt candidly with the Commons of
England. " Then Fenwick begged for delay. He was not a ready orator; his
memory was bad; he must have time to prepare himself. He was told, as he
had been told a few days before in the royal closet, that, prepared or
unprepared, he could not but remember the principal plots in which he
had been engaged, and the names of his chief accomplices. If he
would honestly relate what it was quite impossible that he could have
forgotten, the House would make all fair allowances, and would grant him
time to recollect subordinate details. Thrice he was removed from the
bar; and thrice he was brought back. He was solemnly informed that the
opportunity then given him of earning the favour of the Commons would
probably be the last. He persisted in his refusal, and was sent back to
Newgate.

It was then moved that his confession was false and scandalous.
Coningsby proposed to add that it was a contrivance to create jealousies
between the King and good subjects for the purpose of screening real
traitors. A few implacable and unmanageable Whigs, whose hatred of
Godolphin had not been mitigated by his resignation, hinted their doubts
whether the whole paper ought to be condemned. But after a debate
in which Montague particularly distinguished himself the motion was
carried. One or two voices cried "No;" but nobody ventured to demand a
division.

Thus far all had gone smoothly; but in a few minutes the storm broke
forth. The terrible words, Bill of Attainder, were pronounced; and all
the fiercest passions of both the great factions were instantly roused.
The Tories had been taken by surprise, and many of them had left the
house. Those who remained were loud in declaring that they never would
consent to such a violation of the first principles of justice. The
spirit of the Whigs was not less ardent, and their ranks were unbroken.
The motion for leave to bring in a bill attainting Sir John Fenwick
was carried very late at night by one hundred and seventy-nine votes to
sixty-one; but it was plain that the struggle would be long and hard.
[756]

In truth party spirit had seldom been more strongly excited. On both
sides there was doubtless much honest zeal; and on both sides an
observant eye might have detected fear, hatred, and cupidity disguised
under specious pretences of justice and public good. The baleful heat
of faction rapidly warmed into life poisonous creeping things which had
long been lying torpid, discarded spies and convicted false witnesses,
the leavings of the scourge, the branding iron and the shears. Even
Fuller hoped that he might again find dupes to listen to him. The world
had forgotten him since his pillorying. He now had the effrontery to
write to the Speaker, begging to be heard at the bar and promising much
important information about Fenwick and others. On the ninth of November
the Speaker informed the House that he had received this communication;
but the House very properly refused even to suffer the letter of so
notorious a villain to be read.

On the same day the Bill of Attainder, having been prepared by the
Attorney and Solicitor General, was brought in and read a first time.
The House was full and the debate sharp. John Manley, member for
Bossiney, one of those stanch Tories who, in the preceding session,
had long refused to sign the Association, accused the majority, in no
measured terms, of fawning on the Court and betraying the liberties of
the people. His words were taken down; and, though he tried to explain
them away, he was sent to the Tower. Seymour spoke strongly against
the bill, and quoted the speech which Caesar made in the Roman Senate
against the motion that the accomplices of Catiline should be put to
death in an irregular manner. A Whig orator keenly remarked that the
worthy Baron had forgotten that Caesar was grievously suspected of
having been himself concerned in Catiline's plot. [757] In this stage
a hundred and ninety-six members voted for the bill, a hundred and
four against it. A copy was sent to Fenwick, in order that he might
be prepared to defend himself. He begged to be heard by counsel; his
request was granted; and the thirteenth was fixed for the hearing.

Never within the memory of the oldest member had there been such a stir
round the House as on the morning of the thirteenth. The approaches
were with some difficulty cleared; and no strangers, except peers, were
suffered to come within the doors. Of peers the throng was so great that
their presence had a perceptible influence on the debate. Even Seymour,
who, having formerly been Speaker, ought to have been peculiarly mindful
of the dignity of the Commons, so strangely forgot himself as once to
say "My Lords. " Fenwick, having been formally given up by the Sheriffs
of London to the Serjeant at Arms, was put to the bar, attended by two
barristers who were generally employed by Jacobite culprits, Sir
Thomas Powis and Sir Bartholomew Shower. Counsel appointed by the House
appeared in support of the bill.

The examination of the witnesses and the arguments of the advocates
occupied three days. Porter was called in and interrogated. It was
established, not indeed by legal proof, but by such moral proof as
determines the conduct of men in the affairs of common life, that
Goodman's absence was to be attributed to a scheme planned and executed
by Fenwick's friends with Fenwick's privity. Secondary evidence of what
Goodman, if he had been present, would have been able to prove,
was, after a warm debate, admitted. His confession, made on oath and
subscribed by his hand, was put in. Some of the grand jurymen who had
found the bill against Sir John gave an account of what Goodman had
sworn before them; and their testimony was confirmed by some of the
petty jurymen who had convicted another conspirator. No evidence was
produced in behalf of the prisoner. After counsel for him and against
him had been heard, he was sent back to his cell. [758] Then the real
struggle began. It was long and violent. The House repeatedly sate from
daybreak till near midnight. Once the Speaker was in the chair fifteen
hours without intermission. Strangers were freely admitted; for it was
felt that, since the House chose to take on itself the functions of a
court of justice, it ought, like a court of justice, to sit with
open doors. [759] The substance of the debates has consequently been
preserved in a report, meagre, indeed, when compared with the reports
of our time, but for that age unusually full. Every man of note in the
House took part in the discussion. The bill was opposed by Finch with
that fluent and sonorous rhetoric which had gained him the name of
Silvertongue, and by Howe with all the sharpness both of his wit and of
his temper, by Seymour with characteristic energy, and by Harley with
characteristic solemnity. On the other side Montague displayed
the powers of a consummate debater, and was zealously supported by
Littleton. Conspicuous in the front ranks of the hostile parties were
two distinguished lawyers, Simon Harcourt and William Cowper.

Both were gentlemen of honourable descent; both were distinguished
by their fine persons and graceful manners; both were renowned for
eloquence; and both loved learning and learned men. It may be added that
both had early in life been noted for prodigality and love of pleasure.
Dissipation had made them poor; poverty had made them industrious; and
though they were still, as age is reckoned at the Inns of Court, very
young men, Harcourt only thirty-six, Cowper only thirty-two, they
already had the first practice at the bar. They were destined to rise
still higher, to be the bearers of the great seal of the realm, and
the founders of patrician houses. In politics they were diametrically
opposed to each other. Harcourt had seen the Revolution with disgust,
had not chosen to sit in the Convention, had with difficulty reconciled
his conscience to the oaths, and had tardily and unwillingly signed the
Association. Cowper had been in arms for the Prince of Orange and a free
Parliament, and had, in the short and tumultuary campaign which preceded
the flight of James, distinguished himself by intelligence and courage.
Since Somers had been removed to the Woolsack, the law officers of the
Crown had not made a very distinguished figure in the Lower House, or
indeed any where else; and their deficiencies had been more than once
supplied by Cowper. His skill had, at the trial of Parkyns, recovered
the verdict which the mismanagement of the Solicitor General had, for a
moment, put in jeopardy. He had been chosen member for Hertford at
the general election of 1695, and had scarcely taken his seat when he
attained a high place among parliamentary speakers. Chesterfield many
years later, in one of his letters to his son, described Cowper as an
orator who never spoke without applause, but who reasoned feebly, and
who owed the influence which he long exercised over great assemblies to
the singular charm of his style, his voice and his action. Chesterfield
was, beyond all doubt, intellectually qualified to form a correct
judgment on such a subject. But it must be remembered that the object of
his letters was to exalt good taste and politeness in opposition to much
higher qualities. He therefore constantly and systematically attributed
the success of the most eminent persons of his age to their superiority,
not in solid abilities and acquirements, but in superficial graces of
diction and manner. He represented even Marlborough as a man of very
ordinary capacity, who, solely because he was extremely well bred and
well spoken, had risen from poverty and obscurity to the height of power
and glory. It may confidently be pronounced that both to Marlborough and
to Cowper Chesterfield was unjust. The general who saved the Empire and
conquered the Low Countries was assuredly something more than a fine
gentleman; and the judge who presided during nine years in the Court of
Chancery with the approbation of all parties must have been something
more than a fine declaimer.

Whoever attentively and impartially studies the report of the debates
will be of opinion that, on many points which were discussed at great
length and with great animation, the Whigs had a decided superiority in
argument, but that on the main question the Tories were in the right.

It was true that the crime of high treason was brought home to Fenwick
by proofs which could leave no doubt on the mind of any man of common
sense, and would have been brought home to him according to the strict
rules of law, if he had not, by committing another crime, eluded the
justice of the ordinary tribunals. It was true that he had, in the very
act of professing repentance and imploring mercy, added a new offence
to his former offences, that, while pretending to make a perfectly
ingenuous confession, he had, with cunning malice, concealed every thing
which it was for the interest of the government that he should divulge,
and proclaimed every thing which it was for the interest of the
government to bury in silence. It was a great evil that he should be
beyond the reach of punishment; it was plain that he could be reached
only by a bill of pains and penalties; and it could not be denied,
either that many such bills had passed, or that no such bill had ever
passed in a clearer case of guilt or after a fairer hearing.

All these propositions the Whigs seem to have fully established.
They had also a decided advantage in the dispute about the rule which
requires two witnesses in cases of high treason. The truth is that the
rule is absurd. It is impossible to understand why the evidence which
would be sufficient to prove that a man has fired at one of his fellow
subjects should not be sufficient to prove that he has fired at his
Sovereign.
It can by no means be laid down as a general maxim that
the assertion of two witnesses is more convincing to the mind than the
assertion of one witness. The story told by one witness may be in itself
probable. The story told by two witnesses may be extravagant. The
story told by one witness may be uncontradicted. The story told by two
witnesses may be contradicted by four witnesses. The story told by one
witness may be corroborated by a crowd of circumstances. The story told
by two witnesses may have no such corroboration. The one witness may be
Tillotson or Ken. The two witnesses may be Oates and Bedloe.

The chiefs of the Tory party, however, vehemently maintained that
the law which required two witnesses was of universal and eternal
obligation, part of the law of nature, part of the law of God. Seymour
quoted the book of Numbers and the book of Deuteronomy to prove that
no man ought to be condemned to death by the mouth of a single witness.
"Caiaphas and his Sanhedrim," said Harley, "were ready enough to set up
the plea of expediency for a violation of justice; they said,--and we
have heard such things said,--'We must slay this man, or the Romans
will come and take away our place and nation. ' Yet even Caiaphas and his
Sanhedrim, in that foulest act of judicial murder, did not venture to
set aside the sacred law which required two witnesses. " "Even Jezebel,"
said another orator, "did not dare to take Naboth's vineyard from him
till she had suborned two men of Belial to swear falsely. " "If the
testimony of one grave elder had been sufficient," it was asked, "what
would have become of the virtuous Susannah? " This last allusion called
forth a cry of "Apocrypha, Apocrypha," from the ranks of the Low
Churchmen. [760]

Over these arguments, which in truth can scarcely have imposed on those
who condescended to use them, Montague obtained a complete and easy
victory. "An eternal law! Where was this eternal law before the reign of
Edward the Sixth? Where is it now, except in statutes which relate only
to one very small class of offences. If these texts from the Pentateuch
and these precedents from the practice of the Sanhedrim prove any thing,
they prove the whole criminal jurisprudence of the realm to be a mass of
injustice and impiety. One witness is sufficient to convict a murderer,
a burglar, a highwayman, an incendiary, a ravisher. Nay, there are cases
of high treason in which only one witness is required. One witness can
send to Tyburn a gang of clippers and comers. Are you, then, prepared to
say that the whole law of evidence, according to which men have during
ages been tried in this country for offences against life and property,
is vicious and ought to be remodelled? If you shrink from saying this,
you must admit that we are now proposing to dispense, not with a divine
ordinance of universal and perpetual obligation, but simply with an
English rule of procedure, which applies to not more than two or three
crimes, which has not been in force a hundred and fifty years, which
derives all its authority from an Act of Parliament, and which may
therefore be by another, Act abrogated or suspended without offence to
God or men. "

It was much less easy to answer the chiefs of the opposition when they
set forth the danger of breaking down the partition which separates the
functions of the legislator from those of the judge. "This man," it was
said, "may be a bad Englishman; and yet his cause may be the cause of
all good Englishmen. Only last year we passed an Act to regulate the
procedure of the ordinary courts in cases of treason. We passed that
Act because we thought that, in those courts, the life of a subject
obnoxious to the government was not then sufficiently secured. Yet the
life of a subject obnoxious to the government was then far more secure
than it will be if this House takes on itself to be the supreme criminal
judicature in political cases. " Warm eulogies were pronounced on the
ancient national mode of trial by twelve good men and true; and indeed
the advantages of that mode of trial in political cases are obvious. The
prisoner is allowed to challenge any number of jurors with cause, and a
considerable number without cause. The twelve, from the moment at which
they are invested with their short magistracy, till the moment when they
lay it down, are kept separate from the rest of the community. Every
precaution is taken to prevent any agent of power from soliciting or
corrupting them. Every one of them must hear every word of the evidence
and every argument used on either side. The case is then summed up by a
judge who knows that, if he is guilty of partiality, he may be called to
account by the great inquest of the nation. In the trial of Fenwick at
the bar of the House of Commons all these securities were wanting. Some
hundreds of gentlemen, every one of whom had much more than half made
up his mind before the case was opened, performed the functions both of
judge and jury. They were not restrained, as a judge is restrained, by
the sense of responsibility; for who was to punish a Parliament? They
were not selected, as a jury is selected, in a manner which enables the
culprit to exclude his personal and political enemies. The arbiters of
his fate came in and went out as they chose. They heard a fragment here
and there of what was said against him, and a fragment here and there of
what was said in his favour. During the progress of the bill they were
exposed to every species of influence. One member was threatened by the
electors of his borough with the loss of his seat; another might obtain
a frigate for his brother from Russell; the vote of a third might be
secured by the caresses and Burgundy of Wharton. In the debates
arts were practised and passions excited which are unknown to well
constituted tribunals, but from which no great popular assembly divided
into parties ever was or ever will be free. The rhetoric of one orator
called forth loud cries of "Hear him. " Another was coughed and scraped
down. A third spoke against time in order that his friends who were
supping might come in to divide. [761] If the life of the most worthless
man could be sported with thus, was the life of the most virtuous man
secure?

The opponents of the bill did not, indeed, venture to say that there
could be no public danger sufficient to justify an Act of Attainder.
They admitted that there might be cases in which the general rule must
bend to an overpowering necessity. But was this such a case? Even if it
were granted, for the sake of argument, that Strafford and Monmouth were
justly attainted, was Fenwick, like Strafford, a great minister who had
long ruled England north of Trent, and all Ireland, with absolute power,
who was high in the royal favour, and whose capacity, eloquence and
resolution made him an object of dread even in his fall? Or was Fenwick,
like Monmouth, a pretender to the Crown and the idol of the common
people? Were all the finest youths of three counties crowding to enlist
under his banners? What was he but a subordinate plotter? He had indeed
once had good employments; but he had long lost them. He had once had
a good estate; but he had wasted it. Eminent abilities and weight of
character he had never had. He was, no doubt, connected by marriage
with a very noble family; but that family did not share his political
prejudices. What importance, then, had he, except that importance which
his persecutors were most unwisely giving him by breaking through all
the fences which guard the lives of Englishmen in order to destroy him?
Even if he were set at liberty, what could he do but haunt Jacobite
coffeehouses, squeeze oranges, and drink the health of King James and
the Prince of Wales? If, however, the government, supported by the Lords
and the Commons, by the fleet and the army, by a militia one hundred and
sixty thousand strong, and by the half million of men who had signed the
Association, did really apprehend danger from this poor ruined baronet,
the benefit of the Habeas Corpus Act might be withheld from him. He
might be kept within four walls as long as there was the least chance of
his doing mischief. It could hardly be contended that he was an enemy so
terrible that the State could be safe only when he was in the grave.

It was acknowledged that precedents might be found for this bill, or
even for a bill far more objectionable. But it was said that whoever
reviewed our history would be disposed to regard such precedents rather
as warnings than as examples. It had many times happened that an Act of
Attainder, passed in a fit of servility or animosity, had, when fortune
had changed, or when passion had cooled, been repealed and solemnly
stigmatized as unjust. Thus, in old times, the Act which was passed
against Roger Mortimer, in the paroxysm of a resentment not unprovoked,
had been, at a calmer moment, rescinded on the ground that, however
guilty he might have been, he had not had fair play for his life. Thus,
within the memory of the existing generation, the law which attainted
Strafford had been annulled, without one dissentient voice. Nor, it
was added, ought it to be left unnoticed that, whether by virtue of the
ordinary law of cause and effect, or by the extraordinary judgment of
God, persons who had been eager to pass bills of pains and penalties,
had repeatedly perished by such bills. No man had ever made a more
unscrupulous use of the legislative power for the destruction of his
enemies than Thomas Cromwell; and it was by an unscrupulous use of the
legislative power that he was himself destroyed. If it were true that
the unhappy gentleman whose fate was now trembling in the balance had
himself formerly borne a part in a proceeding similar to that which was
now instituted against him, was not this a fact which ought to suggest
very serious reflections? Those who tauntingly reminded Fenwick that he
had supported the bill which attainted Monmouth might perhaps themselves
be tauntingly reminded, in some dark and terrible hour, that they had
supported the bill which had attainted Fenwick. "Let us remember what
vicissitudes we have seen. Let us, from so many signal examples of the
inconstancy of fortune, learn moderation in prosperity. How little
we thought, when we saw this man a favourite courtier at Whitehall, a
general surrounded with military pomp at Hounslow, that we should live
to see him standing at our bar, and awaiting his doom from our lips! And
how far is it from certain that we may not one day, in the bitterness of
our souls, vainly invoke the protection of those mild laws which we now
treat so lightly! God forbid that we should ever again be subject to
tyranny! But God forbid, above all, that our tyrants should ever be able
to plead, in justification of the worst that they can inflict upon us,
precedents furnished by ourselves! "

These topics, skilfully handled, produced a great effect on many
moderate Whigs. Montague did his best to rally his followers. We
still possess the rude outline of what must have been a most effective
peroration. "Gentlemen warn us"--this, or very nearly this, seems to
have been what he said--"not to furnish King James with a precedent
which, if ever he should be restored, he may use against ourselves. Do
they really believe that, if that evil day shall ever come, this just
and necessary law will be the pattern which he will imitate? No, Sir,
his model will be, not our bill of attainder, but his own; not our bill,
which, on full proof, and after a most fair hearing, inflicts deserved
retribution on a single guilty head; but his own bill, which, without
a defence, without an investigation, without an accusation, doomed near
three thousand people, whose only crimes were their English blood and
their Protestant faith, the men to the gallows and the women to the
stake. That is the precedent which he has set, and which he will follow.
In order that he never may be able to follow it, in order that the fear
of a righteous punishment may restrain those enemies of our country who
wish to see him ruling in London as he ruled at Dublin, I give my vote
for this bill. "

In spite of all the eloquence and influence of the ministry, the
minority grew stronger and stronger as the debates proceeded. The
question that leave should be given to bring in the bill had been
carried by nearly three to one. On the question that the bill should be
committed, the Ayes were a hundred and eighty-six, the Noes a hundred
and twenty-eight. On the question that the bill should pass, the Ayes
were a hundred and eighty-nine, the Noes a hundred and fifty-six.

On the twenty-sixth of November the bill was carried up to the Lords.
Before it arrived, the Lords had made preparations to receive it. Every
peer who was absent from town had been summoned up: every peer who
disobeyed the summons and was unable to give a satisfactory explanation
of his disobedience was taken into custody by Black Rod. On the day
fixed for the first reading, the crowd on the benches was unprecedented.
The whole number of temporal Lords, exclusive of minors, Roman Catholics
and nonjurors, was about a hundred and forty. Of these a hundred and
five were in their places. Many thought that the Bishops ought to have
been permitted, if not required, to withdraw; for, by an ancient canon,
those who ministered at the altars of God were forbidden to take any
part in the infliction of capital punishment. On the trial of a peer
impeached of high treason, the prelates always retire, and leave the
culprit to be absolved or condemned by laymen. And surely, if it be
unseemly that a divine should doom his fellow creatures to death as a
judge, it must be still more unseemly that he should doom them to death
as a legislator. In the latter case, as in the former, he contracts
that stain of blood which the Church regards with horror; and it will
scarcely be denied that there are some grave objections to the shedding
of blood by Act of Attainder which do not apply to the shedding of blood
in the ordinary course of justice. In fact, when the bill for taking
away the life of Strafford was under consideration, all the spiritual
peers withdrew. Now, however, the example of Cranmer, who had voted
for some of the most infamous acts of attainder that ever passed, was
thought more worthy of imitation; and there was a great muster of lawn
sleeves. It was very properly resolved that, on this occasion, the
privilege of voting by proxy should be suspended, that the House should
be called over at the beginning and at the end of every sitting, and
that every member who did not answer to his name should be taken into
custody. [762]

Meanwhile the unquiet brain of Monmouth was teeming with strange
designs. He had now reached a time of life at which youth could no
longer be pleaded as an excuse for his faults; but he was more wayward
and eccentric than ever. Both in his intellectual and in his moral
character there was an abundance of those fine qualities which may be
called luxuries, and a lamentable deficiency of those solid qualities
which are of the first necessity. He had brilliant wit and ready
invention without common sense, and chivalrous generosity and delicacy
without common honesty. He was capable of rising to the part of the
Black Prince; and yet he was capable of sinking to the part of Fuller.
His political life was blemished by some most dishonourable actions;
yet he was not under the influence of those motives to which most of the
dishonourable actions of politicians are to be ascribed. He valued
power little and money less. Of fear he was utterly insensible. If he
sometimes stooped to be a villain,--for no milder word will come up to
the truth,--it was merely to amuse himself and to astonish other people.
In civil as in military affairs, he loved ambuscades, surprises, night
attacks. He now imagined that he had a glorious opportunity of making
a sensation, of producing a great commotion; and the temptation was
irresistible to a spirit so restless as his.

He knew, or at least strongly suspected, that the stories which Fenwick
had told on hearsay, and which King, Lords and Commons, Whigs and
Tories, had agreed to treat as calumnies, were, in the main, true. Was
it impossible to prove that they were true, to cross the wise policy of
William, to bring disgrace at once on some of the most eminent men
of both parties, to throw the whole political world into inextricable
confusion?

Nothing could be done without the help of the prisoner; and with the
prisoner it was impossible to communicate directly. It was necessary to
employ the intervention of more than one female agent. The Duchess of
Norfolk was a Mordaunt, and Monmouth's first cousin. Her gallantries
were notorious; and her husband had, some years before, tried to induce
his brother nobles to pass a bill for dissolving his marriage; but the
attempt had been defeated, in consequence partly of the zeal with
which Monmouth had fought the battle of his kinswoman. The lady, though
separated from her lord, lived in a style suitable to her rank, and
associated with many women of fashion, among others, with Lady Mary
Fenwick, and with a relation of Lady Mary, named Elizabeth Lawson. By
the instrumentality of the Duchess, Monmouth conveyed to the prisoner
several papers containing suggestions framed with much art. Let Sir
John,--such was the substance of these suggestions,--boldly affirm that
his confession is true, that he has brought accusations, on hearsay
indeed, but not on common hearsay, that he has derived his knowledge of
the facts which he has asserted from the highest quarters; and let him
point out a mode in which his veracity may be easily brought to the
test. Let him pray that the Earls of Portland and Romney, who are well
known to enjoy the royal confidence, may be called upon to declare
whether they are not in possession of information agreeing with what he
has related. Let him pray that the King may be requested to lay before
Parliament the evidence which caused the sudden disgrace of Lord
Marlborough, and any letters which may have been intercepted while
passing between Saint Germains and Lord Godolphin. "Unless," said
Monmouth to his female agents, "Sir John is under a fate, unless he
is out of his mind, he will take my counsel. If he does, his life and
honour are safe. If he does not, he is a dead man. " Then this strange
intriguer, with his usual license of speech, reviled William for what
was in truth one of William's best titles to glory. "He is the worst
of men. He has acted basely. He pretends not to believe these charges
against Shrewsbury, Russell, Marlborough, Godolphin. And yet he
knows,"--and Monmouth confirmed the assertion by a tremendous oath,--"he
knows that every word of the charges is true. "

The papers written by Monmouth were delivered by Lady Mary to her
husband. If the advice which they contained had been followed, there can
be little doubt that the object of the adviser would have been attained.
The King would have been bitterly mortified; there would have been a
general panic among public men of every party; even Marlborough's serene
fortitude would have been severely tried; and Shrewsbury would probably
have shot himself. But that Fenwick would have put himself in a better
situation is by no means clear. Such was his own opinion. He saw that
the step which he was urged to take was hazardous. He knew that he was
urged to take that step, not because it was likely to save himself, but
because it was certain to annoy others; and he was resolved not to be
Monmouth's tool.

On the first of December the bill went through the earliest stage
without a division. Then Fenwick's confession, which had, by the royal
command, been laid on the table, was read; and then Marlborough stood
up. "Nobody can wonder," he said, "that a man whose head is in danger
should try to save himself by accusing others. I assure Your Lordships
that, since the accession of his present Majesty, I have had no
intercourse with Sir John on any subject whatever; and this I declare
on my word of honour. " [763] Marlborough's assertion may have been true;
but it was perfectly compatible with the truth of all that Fenwick had
said. Godolphin went further. "I certainly did," he said, "continue to
the last in the service of King James and of his Queen. I was esteemed
by them both. But I cannot think that a crime. It is possible that they
and those who are about them may imagine that I am still attached to
their interest. That I cannot help. But it is utterly false that I have
had any such dealings with the Court of Saint Germains as are described
in the paper which Your Lordships have heard read. " [764]

Fenwick was then brought in, and asked whether he had any further
confession to make. Several peers interrogated him, but to no purpose.
Monmouth, who could not believe that the papers which he had sent to
Newgate had produced no effect, put, in a friendly and encouraging
manner, several questions intended to bring out answers which would have
been by no means agreeable to the accused Lords. No such answer however
was to be extracted from Fenwick. Monmouth saw that his ingenious
machinations had failed. Enraged and disappointed, he suddenly turned
round, and became more zealous for the bill than any other peer in the
House. Every body noticed the rapid change in his temper and manner; but
that change was at first imputed merely to his well known levity.

On the eighth of December the bill was again taken into consideration;
and on that day Fenwick, accompanied by his counsel, was in attendance.
But, before he was called in, a previous question was raised. Several
distinguished Tories, particularly Nottingham, Rochester, Normanby and
Leeds, said that, in their opinion, it was idle to inquire whether the
prisoner was guilty or not guilty, unless the House was of opinion that
he was a person so formidable that, if guilty, he ought to be attainted
by Act of Parliament. They did not wish, they said, to hear any
evidence. For, even on the supposition that the evidence left no doubt
of his criminality, they should still think it better to leave him
unpunished than to make a law for punishing him. The general sense,
however, was decidedly for proceeding. [765] The prisoner and his
counsel were allowed another week to prepare themselves; and, at length,
on the fifteenth of December, the struggle commenced in earnest.

The debates were the longest and the hottest, the divisions were the
largest, the protests were the most numerously signed that had ever been
known in the whole history of the House of Peers. Repeatedly the benches
continued to be filled from ten in the morning till past midnight. [766]
The health of many lords suffered severely; for the winter was bitterly
cold; but the majority was not disposed to be indulgent. One evening
Devonshire was unwell; he stole away and went to bed; but Black Rod was
soon sent to bring him back. Leeds, whose constitution was extremely
infirm, complained loudly. "It is very well," he said, "for young
gentlemen to sit down to their suppers and their wine at two o'clock in
the morning; but some of us old men are likely to be of as much use here
as they; and we shall soon be in our graves if we are forced to keep
such hours at such a season. " [767] So strongly was party spirit
excited that this appeal was disregarded, and the House continued to sit
fourteen or fifteen hours a day. The chief opponents of the bill were
Rochester, Nottingham, Normanby and Leeds. The chief orators on the
other side were Tankerville, who, in spite of the deep stains which
a life singularly unfortunate had left on his public and private
character, always spoke with an eloquence which riveted the attention
of his hearers; Burnet, who made a great display of historical learning;
Wharton, whose lively and familiar style of speaking, acquired in the
House of Commons, sometimes shocked the formality of the Lords; and
Monmouth, who had always carried the liberty of debate to the verge of
licentiousness, and who now never opened his lips without inflicting
a wound on the feelings of some adversary. A very few nobles of great
weight, Devonshire, Dorset, Pembroke and Ormond, formed a third party.
They were willing to use the Bill of Attainder as an instrument of
torture for the purpose of wringing a full confession out of the
prisoner. But they were determined not to give a final vote for sending
him to the scaffold.

The first division was on the question whether secondary evidence of
what Goodman could have proved should be admitted. On this occasion
Burnet closed the debate by a powerful speech which none of the Tory
orators could undertake to answer without premeditation. A hundred and
twenty-six lords were present, a number unprecedented in our history.
There were seventy-three Contents, and fifty-three Not Contents.
Thirty-six of the minority protested against the decision of the House.
[768]

The next great trial of strength was on the question whether the bill
should be read a second time. The debate was diversified by a curious
episode. Monmouth, in a vehement declamation, threw some severe and well
merited reflections on the memory of the late Lord Jeffreys. The title
and part of the ill gotten wealth of Jeffreys had descended to his son,
a dissolute lad, who had lately come of age, and who was then sitting in
the House. The young man fired at hearing his father reviled. The House
was forced to interfere, and to make both the disputants promise that
the matter should go no further. On this day a hundred and twenty-eight
peers were present. The second reading was carried by seventy-three to
fifty-five; and forty-nine of the fifty-five protested. [769]

It was now thought by many that Fenwick's courage would give way. It
was known that he was very unwilling to die. Hitherto he might have
flattered himself with hopes that the bill would miscarry. But now that
it had passed one House, and seemed certain to pass the other, it was
probable that he would save himself by disclosing all that he knew. He
was again put to the bar and interrogated. He refused to answer, on the
ground that his answers might be used against him by the Crown at the
Old Bailey. He was assured that the House would protect him; but he
pretended that this assurance was not sufficient; the House was not
always sitting; he might be brought to trial during a recess, and hanged
before their Lordships met again.