The History and Proceedings of the House of Commons: Volume 3, 1695-1706. Originally published by Chandler, London, 1742.
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Second Session of the Third Parliament.
'I Have called you together as soon as was possible, and I think it a great Happiness that this Year has passed without any Disadvantage abroad, or Disorder at home, considering our great Disappointment in the Funds given at your last Meeting, and the Difficulties which have arisen upon the Re-coining of the Money.
'Our Enemies have not been without hopes that such a Conjuncture might have proved fatal to us: But as they have failed in those Expectations, so I am fully persuaded that your unanimous Proceedings, in this Session, will make them for ever despair of an Advantage from any Disagreement among ourselves.
'It must be confessed, that the Business which you have before you will be very great, because of the Necessity of supplying former Deficiencies, as well as making Provision for the next Year's Service.
'And upon this Occasion it is fit for me to acquaint you, that some Overtures have been made in order to the entering upon a Negotiation for a general Peace: But I am sure we shall agree in Opinion, that the only way of treating with France, is with our Swords in our Hands: and that we can have no reason to expect a safe and honourable Peace, but by shewing ourselves prepared to make a vigorous and effectual War: In order to which, I do very earnestly recommend to you, Gentlemen of the House of Commons, that you would consider of raising the necessary Supplies, as well for maintaining the Honour of Parliaments in making good the Funds already granted, as for carrying on the War the next Year; which I think ought not to be less than what was intended to be raised for that Purpose the last Session.
'It may deserve your Consideration, whether there do not still remain some Inconveniencies relating to the Coin, which ought to be remedied: And I hope you will find out the best Expedients for the Recovery of Credit, which is absolutely necessary, not only with respect to the War, but for carrying on of Trade.
'I am of Opinion, that there is not one good Englishman who is not entirely convinced, how much does depend upon this Session; and therefore I cannot but hope for your Unanimity and Dispatch in your Resolutions, which at this time are more necessary than ever, for the Safety and Honour of England.'
Proceedings of the Commons.
The Commons having appointed their grand Committees, for Religion, for Grievances, for Trade, for Courts of Justice, and for Privileges and Elections, resolved, nemine contradicente, That they would support his Majesty and his Government against all his Enemies both at home and abroad, and that they would effectually assist him in the prosecution and carrying on the War against France: And that an humble Address should be prepared to be presented to his Majesty pursuant to the said Resolution. Which Address was drawn up by Mr. Montague, Chancellor of the Exchequer, and presented to his Majesty on October the 23d, by the whole House, in these Words:
'May it please your most excellent Majesty, This is the eighth Year in which your Majesty's most dutiful and loyal Subjects, the Commons in Parliament assembled, have assisted your Majesty with large Supplies for carrying on a just and necessary War, in Defence of our Religion, Preservation of our Laws, and Vindication of the Rights and Liberties of the People of England; which we have hitherto preserved; and, by the Blessing of God, upon your Majesty's Conduct and good Government, will stedfastly maintain and entail on our Posterity.
'This has cost the Nation much Blood and Treasure, but the Hopes of accomplishing so great and glorious a Work, have made your Subjects chearfully support the Charge. And to show to your Majesty, and to all Christendom, that the Commons of England will not be amused, or diverted from their firm Resolutions of obtaining by War a safe and honourable Peace, we do, in the Name of all those we represent, renew our Assurances to your Majesty, that this House will support your Majesty, and your Government, against all your Enemies both at home and abroad: and that they will effectually assist you in the Prosecution and carrying on the present War against France.'
His Majesty's Answer.
'Gentlemen, The Continuance of your Zeal and Affection is the Thing of the world I value most, and I will answer it by all the Ways I can think of; and I will make your Good, and the Safety of the Nation, the principal Care of my Life.'
These Assurances of Affection on the one side, of Loyalty on the other, and of mutual Confidence on both, being happily given, the Commons entered with great Alacrity upon the three great Affairs that had been recommended to them from the Throne, to wit, The further remedying the ill State of the Coin: The providing a Supply for the next Year's Service: And the Restoring of public Credit. All which had a near Dependance the one upon the other, and made the Difficulties more intricate and hard to compose.
Vote on the State of the Coin.
In order to remove the first and the last, the Commons resolved on their very first Day of Meeting, That they would not alter the Standard of the Gold and Silver, in Fineness, Weight or Denomination; and that they will make good all Parliamentary Funds since his Majesty's Accession to the Crown, that have been made Credits for Loan from the Subject. And because the Circulation of Guineas was obstructed by reason of the Want of other Coin, and by reason of the Act made the last Session, to take off the Obligation of Coining Gold, a Bill was Ordered to be brought in October the 22d, For the giving Leave to import Guineas, and to coin Gold at the Mint.
Estimates of the Charge of the Navy, and Army.
The 28th, the Commissioners of the Admiralty presented to the House, an Estimate of the Charge of the Navy for the Year 1697; which for 40,000 Sea-men, Wear, Tear, Ordnance, the Officers of two Regiments of Marines, the Registry-Office, and the Ordinary of the Navy, was computed at 2,523,954 l.
The same day Complaint having been made of a printed Pamphlet, entitled, An Account of the Proceedings in the House of Commons, in relation to the re-coining the clipt Money, and falling the Price of Guineas: They voted it to be false, scandalous and seditious, and destructive of the Freedom and Liberties of Parliament: And ordered the said Pamphlet to be burned by the common Hangman, and addressed his Majesty to issue his Proclamation, promising a Reward of 500 l. for the Discovery of the Author of that Libel. And two Days after, the House being inform'd of a printed Paper, entitled, A summary Account of the Proceedings upon the happy Discovery of the Jacobite Conspiracy; they resolved, that the printing the Names of the Members of their House, and reflecting on them for their Proceedings in Parliament, was a Breach of the Privileges of that House, and destructive of the Freedom and Liberties of Parliament.
Deficiencies in the Funds.
|On the double 9d per Barrel Excise||103000||0||0|
|First 4s. Aid||59000||0||0|
|Second Quarterly Poll||80000||0||0|
|On the Act to enlarge Time for the purchasing Annuities, beside the growing Interest||366000||0||0|
Supplies voted for the Land and Sea-Service.
The 4th, the House having considered the State of the War for the Year 1697, both in relation to the Navy and Land-Forces, which at their desire, his Majesty ordered to be laid before them, they granted the Sum of Two Millions Three Hundred Seventy-two Thousand One Hundred Ninety-seven Pounds, for the Maintenance of Forty Thousand Seamen, and of the two Marine Regiments and for the Ordinary of the Navy, and the Charge of the Registry of Seamen; and the Sum of Two Millions Five Hundred Seven Thousand Eight Hundred and Eighty-two Pounds, both for the maintaining Eighty-seven Thousand Four Hundred and Forty Men, which according to the List of the Land-Forces delivered into the House, they voted necessary to be employed in England, and beyond the Seas; and for the extraordinary Service of the Office of Ordnance, the Pay of the General Officers, and the Charge of the Transports, Hospitals, and other Contingencies of the War. Besides which, they afterwards, on December the 23d, voted a Supply of One Hundred Twenty-five Thousand Pounds, for making good the Deficiency in recoining hammer'd Money, and the Recompence to be given for bringing Plate into the Mints to be coined.
Proceedings against Sir John Fenwick.
The 6th, Admiral Russel acquainted the House, that his Majesty had been pleased to lay the Proceedings against Sir John Fenwick before his Council, together with Copies of his Information, in which were several Persons of Quality, and among others himself. That he spoke this by his Majesty's Leave, who had likewise directed Mr. Secretary Trumbal to lay the Papers, in which the said Information was contained, before the House.
The said Papers were then delivered and read; after which it was order'd that Sir John Fenwick should be immediately sent for from Newgate; and that no Persons should be allow'd to speak, or deliver any Paper to him, or receive any from him by the way.
Order'd to be attainted of High-Treason.
Accordingly, being brought to the Bar of the House, the Speaker Paul Foley Esq; inform'd 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 own'd 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 6000 l. That he did not write to King James in Person, but his Wife did. As to his own Correspondence with the abdicated King, he confess'd 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 beckon'd 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 whisper'd him, We shall serve both on the same side. He added farther, Brigadier Mayne promis'd to come over to King James's Interest in Ireland; and he said, Indeed I wonder he did not. He confess'd, Lieutenant-General Kirk had given King James the same Assurances. That Sheerness was to be secured by the DeputyGovernor; 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 Speaker to make a sincere Confession, he complain'd, he had been very hardly dealt with, for whatever he had said, the Answer was still, 'tis not satisfactory. The House then resolv'd, that the Reflections contain'd in the said Papers on several noble Peers, Members, &c. were false, scandalous, and a contrivance to undermine the Government, and create Jealosiues between the King and his People, in order to stifle the real Conspiracy. 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 order'd to prepare and bring in the Bill.
The 9th, 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 102; 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 allow'd 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 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 tho' he endeavour'd to palliate and excuse them, a Resolution pass'd, That for the said Offence he should be committed to the Tower; where he was detain'd till he petition'd the House to be enlarg'd.
A Debate about the Form of Proceeding in the Case of Sir John Fenwick.
The 13th, a Debate arose, whether the Mace ought to lie upon the Table, while Sir John Fenwick was examined, or whether the Serjeant ought to stand by him with it at the Bar ? For there was not a Member in the House that had been present at the hearing a Prisoner against a Bill of Attainder.
Some Gentlemen held, That Sir John Fenwick being a Prisoner, the Mace ought to be at the Bar, and then no Member could speak: Others said it ought to lie upon the Table, and then every Member was at liberty to speak, and ask Questions: A third was of Opinion, the Sheriffs of London could not have him in Custody here; but he must be delivered to their Serjeant: To which it was replied, he might be in Custody of the Serjeant without his Mace. And another said, the Mace ought to lie upon the Table: For never any Bill was read, but when the Mace was on the Table.
Others observed, that when the Lord Torrington was brought Prisoner from the Tower; and the House, upon account of his Quality, did not order him to the Bar; the Mace was upon the Table, while he was in the House; and he gave an Account of his Conduct, and every Member was at liberty to ask him what Question he pleased: And another Member said, if the Mace was not upon the Table, their Mouths were muzzled: They were not in the Nature of Judges; and should they pass a Vote, that the Judges should ask no Questions ? Would they act in their highest Capacity without being a House ? adding, that when the Duke of Leeds appeared there, the Mace was upon the Table.
To this it was answered, That though when the Mace was carried from the Table, no Member had the liberty to speak; yet any Member had the liberty to desire, that the Counsel and the Prisoner withdraw; and then the Mace might be brought to the Table.'
It was resolved also, that the Bill should be read to Sir John in the House, though the Mace was off the Table: But then that it should be read again after Sir John was withdrawn, when the Mace was upon the Table before the Question was put.
The Counsel on both Sides.
Then Sir John Fenwick was brought in, and the Serjeant took him to the Bar; where he stood by him with his Mace: And Sir Thomas Powis and Sir Bartholomew Shower, were admitted as Counsel for Sir John; and Mr. Serjeant Gould, and Mr. Recorder Lovel, appeared as Counsel for the Bill.
Mr. Speaker then acquainted Sir John, that the House had ordered a Bill to be brought in, to attaint him of High-Treason; which had been once read; and to which they permitted him to make his Defence by his Counsel, before it was read a second Time: But they must not permit his Counsel to dispute the Power of Parliaments to pass Bills of Attainder, whenever they saw fit. After which the Bill was read, being of the following Tenor:
The Bill read to Sir John.
That whereas Sir John Fenwick, Bart. had been indicted for High-Treason, on the Oaths of George Porter and Cardel Goodman, for compassing the King's Death, and adhering to his Enemies: And whereas the said Sir John had procured his Trial to be put off from time to time, on Pretence of making a full Discovery of the Conspiracy against his Majesty; and, instead thereof, had contrived several false and scandalous Accusations; reflecting on some Peers and Members of the Commons, with an Intent to undermine the Government, and create Jealousies between the King and his Subjects: And whereas the said Cardel Goodman, one of the Witnesses against the said Sir John, was in the mean time withdrawn, so that his Evidence could not now be had: It was therefore enacted, that the said Sir John Fenwick should be convicted and attainted of High-Treason.
Mr. Serjeant Gould opens the Charge and the Evidence.
A Debate thereupon. ; Sir Thomas Littleton.
'Mr. Speaker, the Counsel could not think that the Bill should set forth, that Sir John Fenwick 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 made by the Counsel to the Bill? Say they, we are ready to give Reasons against the Bill: They do not say downright against your Jurisdiction; but that they are ready to shew you, it is not reasonable in this Case, as Circumstances stand, to pass this Bill: Sir John's Petition was to be heard downright against the Bill. If that was your Intention, to hear him 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 a Defence to the Evidence ? it may be they have a mind to 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 John Fenwick? What is the Meaning that they are not prepared ? I suppose it is to have a Pretence for further time: But I think your Order is so plainly worded, that they could not mistake it.'
Mr. Cowper, 'The Counsel for Sir John Fenwick say, we come prepared to make a Defence to every thing charged in the Preamble of the Bill; but what is not charged, we do not come prepared to make a Defence to. Now they conceive the Fact of High-Treason is not charged upon him by the Bill; and, if that be true, it is of great Weight; but as it is, 'tis none: For first, it is plain, the Preamble recites, that he was indicted for High Treason 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, is no Part of the Charge? the very Nature of the Bill speaks: For could any one think, you would ground a Bill of Attainder upon a Suggestion, that he, being indicted of High-Treason, had spirited away one of the Witnesses, or given a false Information ? So that this is tristing with the House, with Submission.'
Sir Richard Temple, 'Can any body say any thing of the Intention of the House, when it is reduced into a Bill ? Is it not the Bill he is to make his Defence to ? And the Gentleman who spoke last, says, That no body could think otherwise: Why Sir, no body is to think otherwise than as the Bill states it.
Now the Thing before you is, Whether upon the Suggestions in this Bill, it is fit for you to pass it? The Case of Mortimer was, That he had made his Escape, being under an Indictment of High-Treason, and it came before the House, Whether upon the Statute of 25 Edw. III. it was High-Treason ? but they did not debate the Fact. Now you have brought a Bill here; and all the ground is, That he was indicted for High-Treason; had thus and thus prevaricated and delayed his Trial upon Promises of Confession; and in conclusion, one of the Witnesses 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 Guilt of Sir John Fenwick, he must have had a fair Trial in some Place, and that he cannot have here upon Oath; for upon all Bills of Attainder hitherto, they have had a fair Trial above,' (in the House of Peers.)
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 allegata & prcbata; 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 John Fenwick is guilty of High-Treason? and if not, you will not go about to prove what is not alledged. 'Tis true, it is alledged that a Bill hath been found; but several have been indicted who have been acquitted. It is possible the Prisoner at the Bar 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.'
Mr. Sloane, 'I will allow the Bill might have been drawn better, and that a bare Indictment is not a sufficient Ground of itself for a final Decision of this Matter: But when, at the time of finding the Indictment, there were two Witnesses, and one of them is withdrawn, and, as is supposed, by his Means; if the Bill seems imperfect for any thing before you now, you will not stay all Proceedings upon it; but if you see it imperfect, and it may be amended, you will amend it at the Committee. I think, the Favour you have given is abused, and that it is perfect trifling from the Bar: In one Breath they say, they could not get ready, for they had no Notice till last Night; and in the next they say, they will go on to every thing, but his being guilty; and I believe they never will be prepared for that.'
Mr. Attorney-General, 'Sir, I am very unwilling to speak any thing in this Matter; because, Sir, by the Place I have the Honour to serve his Majesty in, as one of his Counsel, if it was in the Courts below, I must prosecute on the Behalf of the King: But, I am very sensible, while I am in this House, I am in another Capacity; I am to vote here a a Judge, and not as a Party.
'That which I do now trouble you about, is in relation to the Matter that hath been objected, that the Bill does not expresly affirm, that Sir John Fenwick was guilty of HighTreason, but only that he was indicted for it: Truly, I thought, and do still, with humble Submission to the House, That that Matter of affirming him to be guilty of High-Treason, was not to be inserted in the Bill; for that will be the Consequence of your Judgment and Opinion upon hearing of the Evidence. That worthy Member that spake last, said, the Bill might be better drawn: I am sorry we had not his Assistance in it; but, with Submission to his Understanding, I think that had been too much Presumption, till you are satisfied whether he was guilty or no: We could only go so far as to set forth the Faults that we knew; as, that he was indicted, that we can verify, and cannot take this to be like the Case of an Indictment; for there you must affirm such and such things that cannot be altered afterwards; but a Bill in Parliament hath many Steps, you read it several times, and commit it; so that you alter the Suggestions of the Bill as the Case appears to you to be verified; and if you be of Opinion that he is not guilty, you will not condemn him be cause he is indicted: However, that is not immaterial, but proper to be set forth for a Ground of your Proceedings, that there was a Probability of his being guilty from that Accusation: Therefore, Sir, I confess, I cannot think that those Gentlemen, that are of Counsel for Sir John Fenwick, could think that you did intend to proceed otherwise than to hear Counsel as to the Fact; they could not think that, upon Proof of his being indicted, that would be Ground enough for you to proceed to pass the Bill; for how could any body think, but you would come to examine the Fact ? I cannot see how they should come to mistake, unless it was wilfully.
Colonel Granvill: 'Sir, the Counsel (by what I observed from them) have started two Difficulties, and really (to me) both seem very material: The First is, whether the King's Counsel shall be at liberty to prove any thing that is not suggested in the Bill; the other is, whether Sir John Fenwick had due Notice to make his Defence.
'The first is a Matter of very great Moment: You are proceeding upon a Bill, where not only the Life of Sir John Fenwick, but the Life of every Man in England, is in some measure concerned: When a Precedent is made in this Case, no body knows who may be affected or hurt by it; and therefore I desire you will settle that Matter, and have the Judgment of the House, whether they will admit the Counsel to prove any thing that is not suggested in the Bill: If you will, I do not see how any Man that stands at the Bar of your House can be prepared to make his Defence; for there shall be one Crime alledged in the Bill, and when he comes to the Bar, the Counsel that are to prosecute, shall go quite off from that which is laid in the Bill, and produce you Evidence to a new Crime; and he stares and looks round him, and you had as good allow him no Counsel or Copy of the Bill. This you thought so necessary for every Man, that was to come upon his Trial for his Life, for Treason, that you altered that Trial, and declared, no Man should have any Treason proved against him, that is not alledged against him in the Indictment.
'We have had great Complaints of Westminster-Hall, and if the Parliament should proceed in this manner, may have the same again: If they are too rash in their Proceedings, they will be countenanced mightily in them, if you should proceed against a Man, and condemn him for one thing when he is accused of another. I desire to know how we can proceed in a Bill, upon which Sir John Fenwick is to be proved guilty, and he hath no opportunity to answer it? I take it, as this Bill is drawn, Sir John Fenwick's Guilt is no way concerned in it: For, whereas the worthy Gentlemen tell you, the Treason is specified, there is no Treason specified, otherwise than he is indicted for it.'
Mr. Whitaker, 'As to the Exceptions made to the Insufficiency of the Bill, by which they pretend Sir John Fenwick was led into an Error, so that he had no due notice; I must needs, say, if they had been in WestminsterHall, they would have been in the right: But this House is not bound to those Forms; for, I believe, the enacting Clause would do the business of Sir John Fenwick wellenough, if all the rest were laid aside; and I will consider it, with as much Tenderness and Conscience for the Prisoner at the Bar, as any that bring Arguments from Westminster-Hall: I would consider, whether such a Defence as they have made, that from the Bill (as to what is laid in it) he had not notice enough to prepare to make his Answer. They say, a Recital is no direct Affirmation: In Civil Matters, it is an Affirmation; for to say, Whereas such a one is bound, is good in a Declaration upon a Bond; now, I would know, Whether it be not enough to say, That he is indicted, without an Allegation that he is guilty? Had the Bill no Recital at all, it might have been necessary for them to have desired the opinion of the House, to what they should have answered; but here the Treason is specified in the Preamble of the Bill; and I agree, that the King's Counsel ought not to give Evidence of any Treason that is not so specified.'
Sir Edward Seymour, addressing himself to speak on the other side, and observing a great many Lords in the Gallery, said, 'My Lords, and you Mr. Speaker, what hath been said by that worthy Person that spoke last, no doubt, is true; That if there had been no more than the enacting Clause, it would have done Sir John Fenwick's Business with a Witness, or, rather without a Witness. But that is not the Question we are disputing here; the Question is, Whether you will give Sir John Fenwick longer time to make his Defence to that Part he insists on, which is not contained in the Bill? You are well satisfied, you cannot go through with the Suggestions to-night, and the Debates, and what relates to them; and I find no Person against putting it off, but because it would be a Delay; and, if it be no delay, that Reason is out of doors. They tell you the Counsel could not but take notice of the Matters suggested in the Indictment; I cannot think that it is reasonably argued, because they do know the Practice and Method is such, that they can take notice of nothing but what is specified and contained in the Bill: and therefore, there being no Guilt charged on Sir John Fenwick in the Bill, it is reasonable they should come and accuse themselves here, or make a Defence to what is not charged? No: But, say they, it is implied. This is an untrodden Path, and you ought to walk as securely in it as you can. 'Tis extraordinary that you bring Sir John Fenwick here to answer for Treason, when it is allowed, in the Suggestions of the Bill, you have but one Witness to that Treason; and, when you take these extraordinary Steps, you should comply with him as much as you can in Forms: For if Treason be not Treason, unless it be proved by two Witnesses, and you will give him liberty to make his Defence, I think it no loss of time (for you cannot go through the Bill to-night) to see whether Sir John Fenwick be guilty of what is contained in the Indictment: And I will give you one reason, why he could not be prepared to make his Defence in so short a time, namely, because he could not produce his Evidence, if he had any; and, if you give him longer time, I suppose you will think fit that Sir John Fenwick should give an account of what Witnesses he shall make use of for his Defence, and give him an Order for those Witnesses to attend. (fn. 1)
Mr. Harley said, 'I find all Gentlemen that speak of this Subject, do say, that this Matter is of an extraordinary Nature, and you have entered into it by very extraordinary Methods: But I must observe, that this being the first Bill of this kind, that hath been brought into the House before any Proof, Gentlemen must be excused if they are cautious what steps they take; and when the Wisdom of the House hath thought fit to take quite different Methods as to the Preliminaries, it is not to be wondered at, if they meet with Difficulties in their Proceedings.
'Some Gentlemen press for more time to be given Sir John Fenwick, to be prepared; and others urge, that you should declare whether the Counsel should be heard to any thing, but what is suggested in the Bill: And, I think, you must give a determination to the last Question, though the House agree to give him longer time; for if you give him longer time, it will afterwards come to the same Debate, Whether they shall be heard to any thing but what is suggested in the Bill? If you should think fit to add any thing, then it will be reasonable that he should be also heard to that; for in the Case of the Death of a Man, let him deserve never so much, yet he does not deserve to die unjustly by our hands. It seems a very plain Proposition, that when a Man is accused, he should not answer to what he is not charged with; and to charge it with Innuendo's and Implications is so uncertain, that I have always seen it denied in this House; so I hope, I shall not see so great an Assembly give counsenance to it. They did tell you, they were prepared to speak to the Reasonableness of the Bill; but this matter not being suggested, they are not prepared to speak to it.'
Resolved to give Sir John further time; but that Evidence might be given of the Treason in the Indictment.
Both which being resolved in the Affirmative, Sir John Fenwick was called in again; and Mr. Speaker acquainted him, that the House was willing to give him till Monday next to make his Defence; and that if he gave in a List of his Witnesses, he might have his Warrant for their appearing at that time.
Sir John brought to the Bar again. ; Porter's Evidence.
The 16th, Sir John being brought to the Bar again, Mr. Serjeant Gould opened the Charge and the Evidence again, as before: After which (tho' objected to by the Prisoner's Council, and stiffly debated in the House) Captain Porter was called as a Witness for the King, and gave the same Evidence he had done at the Trials of the other Conspirators, of their meeting at the King's head in Leadenhallstreet, and at Mrs. Mountjoy's, at St. James's; at both which Places he affirmed Sir John was present, and agreed to send over Charnock to France, to invite over French Troops: and that Sir John and all the Company agreed, to raise two thousand Horse here, and join them on their Landing.
Then Mr. Serjeant Gould proceeding to ask Porter concerning the Lady Fenwick's and Clancy's tampering with him, which Sir John's Counsel opposed, as contrary to Law and the Practice of Courts; there being besides but one Precedent, on record of a Wife's being admitted an Evidence in her Husband's Case, viz. Lady Audley's; which had been looked upon as illegal ever since.
Debate on admitting Evidence that Lady Fenwick had tamper'd with the Witnesses.
The Prisoner and the Counsel were ordered to withdraw, and the House entered upon the Debate, whether Evidence should be admitted of the Lady Fenwick's tampering with the Witnesses? and those who were for hearing this Evidence, observed, That if they were tied up by the Forms and Methods of inferior Courts, it was to no purpose to bring the Prisoner before the House; if he could have been convicted in the Courts below, there was no occasion for this Bill: That in the Courts of Common Law all Facts were tried by Juries, but here the whole House sat as Judges: A common Jury might be influenced by illegal or incompetent Evidence, which might not be fit, therefore, for them to hear; but in the Court of Chancery such Evidence was admitted every day; and the Reason was, that a Cause was dispatched sooner by hearing it than not: That here they ought to inform themselves by the best Lights they could get; and if it should appear Sir John employed his Lady to tamper with the Witnesses, it would have some weight with them.
The House resolve to admit it.
On the other hand it was observed, That if the House was not governed by the Rules of inferior Courts, they ought to be guided, however, by that which was the ground of their Practice, namely, Reason and good Sense, and the common Rules of Equity: The House would not punish one Person for the Act of another. The Counsel for the Bill had not so much as opened, that Sir John was instrumental in the withdrawing of Goodman: and if the Lady Fenwick was concerned in it, this could only affect Sir John by way of Inference. But the Question being put, That Porter be examined to the Attempt of taking off his Testimony, it was resolved in the Affirmative.
Accordingly Porter was then examined, and declared, he had been offered 300 Guineas, &c: to go into France. One Mr. Roe likewise signify'd, that he had been offer'd 100 l. a Year, to discredit Goodman's Testimony.
The Counsel for the Bill then mov'd for reading Goodman's Examination, taken before Mr. Secretary Vernon, Goodman himself not being in the Kingdom; but this was warmly oppos'd by the Council for the Prisoner, as what was not allowable in a Suit of five Shillings.
Debate on the reading Goodman's Examination.
The Counsel and the Prisoner were then again order'd to withdraw, and a new Debate arose; on which Mr. Manley said, 'Every one that had look'd into the A B C of the Law, knew that Examinations before Justices were never read.' To which Mr. Sloan replied, 'I believe I may save a great deal of trouble in this matter; for those Gentlemen at the Bar that made the Objection, speak without Book, but I speak by Book, having my Lord Chief-Justice Hales's Pleas of the Crown in my hand: I think he was past his A B C of the Law; I know not how far this Gentleman is advanced in his Pleas of the Crown in that part, where he shews what is Evidence to the Petit-Jury; he says, first, By the Statute 1 & 2 Philip and Mary, c. 13. The Justice hath power to examine the Offender and Informer; and so he goes on in several Particulars, and then he says, These Examinations, if the Party be dead or absent, may be taken in Evidence.'
Another Member replied, 'That such Depositions were never given in Evidence in the worst of times; even at the Trial of the Lord Mordant, when Juries were disused, it would not be admitted; and they were tried by the Rules of Law, or they were tried by nothing.'
Another said, 'He should not look upon himself to be so tied up by the Rules of Law, but that he might hear all the Evidence that could be offered: If they could not have the two Witnesses, on whose Testimony the Bill was found, they would take such Evidence as they could get.' And one said, he had seen a Justice of Peace examined concerning the Depositions he had taken, and he took it to be ordinarily done.
On the other side, Mr. Harcourt observed, 'That if they were to collect all the Absurdities out of the Trials of the late Reigns, they would not find more than had been advanced by the Counsel for the Bill; and if those Depositions were Evidence, where the Witness was absent, there had been no need of this extraordinary way of proceeding in Parliament. This Gentleman was seconded by Mr. Harley, who observed, 'That Bills of Attainder, and Judgments of Attainder, had been reversed, for no other reason, but because the Parliament had not proceeded by the Rules of Law; and if they were not bound by the Rules of Inferior Courts, yet they must by the Laws and Practice of Parliaments: and it was never known that this House ever admitted Affidavits as Evidence; for if they did, they must make this, which was a Superior Court, same and defective, and to want the Assistance of an Inferior Court.
'Here it is that the Boundaries are establish'd for the Laws and Liberties of Mankind, and this is an Observation that is found in History, that those that have broke their Bounds down, it hath return'd upon them to their Prejudice: Let us not out of Hatred or Zeal against a guilty Man, lose our own Innocence.'
It was replied by a Gentleman for the Bill, 'That though this might be Evidence in Felony, in a Court of Law, yet it could not be deemed Evidence there in Treason, because the Law required two living Witnesses in Treason; there was a Necessity therefore of resorting to the Parliament: But in Cases of Felony, where two Witnesses were not required, such Evidence was admitted frequently: The Lord Chief-Justice Hales's Opinion, also, was so, and that was grounded on an Act of Parliament.'
A Gentleman, who was against the Bill, thereupon observed, 'That if an Act of Parliament could be produced for it, the Debate was at an end; but if there was an Act positively against such Evidence, then he hoped they would reject it: That the Case in the Lord Chief-Justice Hales related only to Felony; He says, that Informations may be taken of the Person himself, (though not by the Common Law) by particular Acts of Parliament; and the Depositions of Witnesses might be admitted, but then the Party ought to be present; and if they would produce a Statute for an Authority, they must offer a Statute that was in Point: He thought it was of the last Consequence to admit Affidavits in that House.'
To this a Member for the Bill answered, 'There had been a Statute lately made, indeed, which required two living Witnesses in Treason; but in that very Statute it was provided, that Proceedings in Parliament should not be affected by it; and he was not for refusing any Evidence in this case, though never so small.' And a Gentleman observing on the other side, that an Affidavit was never read in case of an Impeachment, which very much resembled this:
A Member for the Bill took notice, 'That all the Cases which had been cited, were brought from inferior Courts, except the last, which related to the Usage in less considerable Cases: But a Bill of Attainder was an extraordinary thing, and never used but upon extraordinary Occasions: The Question here was only as to the Forms of their Proceedings; and the Law had entrusted the Parliament with a greater Power than they were now about to execute: They might declare that to be a Crime, which was deemed no Crime before it was committed; and surely they might determine what they would admit as Evidence of a Crime.' Another added, 'There was lodged in the Legislature, a Power to judge those Crimes that were sheltered from the Law; and he thought never any Attainder was brought in upon a juster Occasion than this: The Prisoner was not only in a Plot to bring in a foreign Power; but had given in a false and scandalous Information, to create a Distrust and Jealousy between the King and his People; and had trifled with the Government, and gained so much Time, that he had found an Opportunity to corrupt one of the Witnesses; and it would be hard if the Legislative Power could not reach him.'
It was replied by the other side, 'That though this House was not bound by the Rules of inferior Courts, they ought to give such Rules, and make such Precedents, as were fit for other Courts to imitate: That this might be a dangerous Precedent for future Parliaments to act by; For suppose the Information Sir John Fenwick had given in, should hereafter be produced as Evidence against any of those honourable Persons he had accused; and some Rascal in a future Reign should come in also against them, would it not be thought a great Hardship, and a Piece of Injustice, to make such a Paper to supply the Place of a second Witness; and pass a Bill to attaint them of High-Treason on such Evidence? Of what Consequence would this be?
Resolved that Goodman's Examination should be read.
The Tenor of it.
Then the Prisoner and the Council were called in again; and the Information of Goodman, made before Mr. Secretary Vernon, was read; wherein he deposed, That there had been a Conspiracy to seize the Person of King William, and raise a Rebellion, for two Years then last past: In which he charged Sir John Fenwick with being a Principal, and brought several Circumstances to prove it.
The Record at the Conviction of one Cook, another of the Plotters, was then offered, by the Council for the Bill: Goodman's Evidence, said they, in that Case, affecting Sir John Fenwick as much as Cook himself.
Debate on the Record of Cook's Conviction.
This gave rise to another Debate, and the House being clear'd in order thereto; a Gentleman, who was against the Bill, observed, 'That such Evidence had never been admitted in a Court of Law, or in that House; namely the Evidence that was given at the Trial of another, which Evidence was to be us'd against a Person who was not present, and had no Opportunity of defending himself against it.' Another Member demanded, 'If they were to read all the Trials for the Plot.' Whereupon it was demanded, by a Gentleman who was for the Bill, 'Why they admitted the Evidence Goodman had given to the Grand-Jury to be repeated? This was but the Evidence of what he had said to the Petit-Jury: If nothing but strict Proof was to be offered, this Bill had never been brought in; but they were to accept of such Proof as the Nature of the Thing would bear.'
To which the other side answered, 'If they had determined at first, that they would not expect legal Proof, they might have shortned their Debates pretty much.' Another said, 'They were put upon passing a Bill of Attainder against a Man, and were not allowed to talk of Proofs: If they had no Evidence for it, he was sure there was Evidence against it: For at Cook's Trial, two or three Witnesses had sworn, that Goodman was not at the Meeting at the King's-Head, where he swore he was.' Another Gentleman put them in mind,' That a great many Judgments in the late Reign had been reversed, because they received such Evidence at those Trials, as was not legal Evidence; and that this Grievance was taken notice of in their Bill of Rights.'
To which it was replied, by a Gentleman for the Bill, 'That had Goodman sworn at that Trial, that Sir John Fenwick was not at the King's-Head, Sir John might have produced a Witness, to prove what he had sworn; and why might not the Evidence which made against him be proved?' Whereupon a Member, who was against the Bill, replied, 'It was one thing to produce a Record to convict or attaint a Person, and another, when it was produced, to prove a Man perjured, or to invalidate his Testimony: For when Evidence was brought against a Prisoner, he had no way to lessen it, but by what was collateral: And where the Witness had given contrary Evidence at another Trial, or the Prisoner had been acquitted, Then the Record might be made use of against that Witness; but could never be made use of to convict or attaint any Person.'
Resolved to read the Record of Cook's Conviction.
The other side said, 'They did agree, that neither the Conviction of Cook, nor any Evidence upon his Conviction, could be Evidence against Sir John Fenwick: But it was one of the Allegations in the Bill, That several Gentlemen were present at the Meeting at the King's-Head, where Sir John Fenwick was charged to be; and they produced it to make good that Allegation.' And the Question being put, That the Record of the Conviction of Peter Cook be read, it passed in the Affirmative; Ayes 181, Noes 110; and accordingly that Record was read.
The Evidence of what Good-man swore at Cook's Trial offered.
The next Thing the Council for the Bill proposed, was, to examine some of the Jury-men who served at Cook's Trial, and some other Witnesses, to prove what Goodman had sworn at that Trial; which the Council for the Prisoner opposing, they were all ordered to withdraw again.
A Debate thereupon.
Then a Member, who was against the Bill, said, 'He thought it had been admitted by the other side, in the former Debate, That no such Evidence ought to be admitted: But, if they were not to be guided by the Rules of Westminster-Hall, he was sure they ought not to seek a Way to the King's Favour, by attainting a Man of High-Treason, upon incompetent Evidence.'
It was said on the other side, 'That it was every Day's Practice in Civil Cases, to hear what a Witness had said at another Trial between the same Parties, where a Witness was dead.' To which it was answered 'That in those Courts a Witness must swear true at his Peril; for if he did not, he might be punished for it: But here, if he takes away a Man's Life by what he says, what Remedy was there against him?'
Others said, 'If there was not another Place where the Witnesses would be sworn, they could not give their Consent to the passing this Bill, for the Witnesses for the Prisoner were not sworn: So that they could only give an Opinion upon the Probability of the Matter.'
Another Member against the Bill, said, 'He could not but take notice of what had been said by the other side, That they had done as much as this comes to already: This made him still more apprehensive, and to take care what he did now; since what the House did, had so quick an Operation, and they were already citing Precedents of that very Day, and still making one thing a Handle to draw on another.
Resolved to examine the Witnesses of what Goodman swore at Cook's Trial.
However, it was Resolved upon the Question, That the Council for the Bill should be allowed to examine Witnesses of what Goodman swore at the Trial of Cook; Ayes 180, Noes 102: And thereupon the Prisoner and the Council being called in again, two or three of the Jury-men at Cook's Trial were examined, as to what Goodman said at that Trial; and answered, That Goodman deposed, he was introduced into the Company of the Conspirators at the King's-Head, by Mr. Porter; and there Sir John Fenwick and the rest agreed to send Charnock to France, to procure Forces from thence; and another Person, who was present at Cook's Trial, testify'd the same: And it being demanded of the Witness, If any Exception was taken then to Goodman's Credit? he answered, It was objected that Goodman had been guilty of several Crimes; to which it was said, he had his Pardon, and was then a good Witness.
Sir John's Letter to his Lady offered as Evidence; but rejected.
Then the Council for the Bill desired to read the Letter above mentioned to be written from Sir John Fenwick to his Lady from Romney, after he was apprehended: But Sir John's Council insisted, that this Case came short even of Colonel Sidney's; this Piece of Evidence was therefore void. And it being now very late, Sir John's Council were ordered to make their Observations on the Evidence for the Prisoner the next Morning: But were told, If they had any Witnesses to examine, they must produce them that Evening; for they could not hear Witnesses afterwards. To which Sir John's Council answering, They should call no Witnesses; but when they came to speak, they should give the House Satisfaction why they did not think it necessary to produce any; the Prisoner and his Council withdrew, and the House soon after broke up.
The Gentlemen charged by Sir John, move, he might prove the Charge.
The 17th, Sir John Fenwick and the Council on both sides were called in again; and the Speaker directing the Council for Sir John to make their Observations on the Evidence that had been given; they did so; and were reply'd to by the Council for the Bill. After which, both Parties being withdrawn, Admiral Russel moved, that Sir John might be called in again, and asked, What Proof he had, that he (the Admiral) sent Captain Lloyd to France, and was guilty of the other Facts mentioned in the Paper he sent to the King?
Then Colonel Crawford for himself, Colonel Godfrey for the Lord Marlborough, Mr. Bridges for the Duke of Shrewsbury, Mr. Boscawen for the Lord Godolphin, and Colonel Granvill for the Lord Bath; desired Sir John might be asked, What Proof he could make of the Facts, he had charged them with respectively in the said Paper?
Sir John refuses to answer on that Head.
Another Member moved, That he should be asked in general, what Proof he had of the Particulars in that Paper? But at length it was agreed, that the Paper should not be produced; and that they should only ask him upon every Name in that Paper, in the Order they were mentioned there, What he knew of that Gentleman? And accordingly, Sir John and his Council were called in again, and Mr. Speaker demanded of him, What he knew of the Lord Godolphin? (being the first Person mentioned in the Paper.) To which Sir John answering, He hoped they would not put him upon answering any thing that might hurt himself, he was ordered to withdraw.
Mr. Vernon relates the Endeavours used by Sir John to put off his Trial.
Then it was moved, That Mr. Vernon might give an Account of Sir John's Practices, to get his Trial put off from time to time, on pretence of making a Confession; this being one of the Allegations in the Bill, of which no Proof had been made: And it being agreed, that this ought to be done in the Presence of Sir John and the Council, they were called in again: And Mr. Vernon related, that the Lady Mary Fenwick had applied to him to get Sir John's Trial put off, on pretence of his making Discoveries; and that several of the Ministry had attended Sir John, on his Promises of making a full Confession: but that he had only amused them from time to time, till Goodman was gone.
The Observations of his Council upon it.
Sir Thomas Powis answered, He did not find there was any Degree of Treason in this Part of the Charge; and what Crime they would construe it, he could not tell: That it was usual for Persons, under an accusation, to endeavour to put off their Trial, on Account of the Absence of their Witnesses, or for other Reasons: But this was no Crime; at least, not of the Nature the Bill charged.
Sir Bartholomew Shower added, If Sir John had prevaricated, as they called it, he hoped that was far from making him guilty of High-Treason; and that if this was an Offence, it was so at Common-Law, and he might be punished for it by common Methods: And if it was no Offence, he hoped they would not make it an Offence by a new Law, so as to inflict the greatest Punishment for such an Artifice.
A Debate on the second reading of the Bill.
The Prisoner and Council being withdrawn, the Bill was read a second time, after which there was a profound Silence: Whereupon Mr. Speaker demanding, if he should put the Question of Commitment? a Debate arose, which was begun by Sir Thomas Dyke, who said, 'He hoped he would not put the Question of Commitment, till some Exception was made to the Bill; for he was sure it was as liable to Exceptions, as any Bill that had been brought in a great while.'
Arguments for the Bill.
To this it was replied, 'That the Parliament would never take a Cause from the ordinary Courts of Justice, or attaint a Person of High Treason, unless in extraordinary Cases: But here, it appeared, they had been deprived of the Evidence that was necessary in Inferiour Courts; and, in such a Case, it was usual for the Parliament to interpose: For the Parliament were not bound down by what was called legal Evidence; but might make use of any Information that could give them any Light into the Matter: They were Judges of their own Methods, and could pass a Judgment on Sir John Fenwick's Guilt, from the Circumstances before them; and were not tied down by the Rules of WestminsterHall: That this Power indeed had been seldom exerted, but where the Party was withdrawn from Justice, and could not be come at in the ordinary Course: But this was a parallel Case; they could not come at Justice in the ordinary Course, their Witness having been tampered with and withdrawn; and therefore, from what was admitted on the other Side, the Parliament ought to exert their Power, when the Offender could not be come at otherwise. This Case was proper to be brought before the Parliament, which was vested with a discretionary Power, to do whatever they apprehended for the Good of the Kingdom; and this they looked upon as a fit Occasion to exert that Authority: That, indeed, this Power was like Thunder in the hands of Providence, not to be used but upon extraordinary Occasions; and then it never ought to fail of doing Execution: For Men would trifle and contemn that Power which was not able effectually to exert itself. Some Gentlemen were afraid of making an ill Precedent; but it was for that very Reason others were for passing the Bill: For as the Law stood, he was but a bungling Politician, that could not ruin the Government, and yet not come within the Bill of Treason to be hanged for it: And therefore, for the keeping Ministers of State in awe, and that the Parliament might have it in their power to punish such Offenders as they saw fit, as well as the Prisoner, they were for the Bill.
'It had been objected indeed, that Sir John Fenwick's Life was not of that Consequence as some pretended: He was not so considerable, that his Escape could bring any Danger to the Public. But it was a very just Observation, that if a Plot was discovered, and not thoroughly prosecuted, it would strengthen and grow upon the Administration; and it was ten to one, but the Government was subverted by the Conspirators in the end. That no one could imagine, that Sir William Perkins, Sir John Friend, and the rest that had been discovered, were the only Persons concerned in this Conspiracy; there must be much greater Men concerned in it: And when they saw such a Struggle to get People out of Jayl, and send them out of the Way, they must suppose there was something extraordinary still to be done: And they would not have Men think to secure themselves by bribing and tempering with the Witnesses. It was notorious that Parties were forming for King James; Persons were plotting in every Part of the Kingdom, and an open Invasion threatened: And; if this was not a time to exert their extraordinary Power, when would it be a proper time?—Others observed, that if the Laws of God and Nature required, that no Man should be put to death without two Witnesses, it was strange that all Christian Nations were not governed by such Laws: But in Fact, no two Nations agreed in their Manner of Proof; and we 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 we ourselves, require the same Proof in some Cases as we did in others; for one Witness was sufficient in Felony: And before the Statute of Edward VI any Evidence was sufficient, even in Treason, which was sufficient to incline the Jury to give a Verdict: And for the Treason of Coining, such Evidence was still sufficient. That if this Precedent had been made in the Case of an innocent Person, or even where the Fact was doubtful, by a prevailing Party, it had been an ill Precedent: But it being made for a Man that was notoriously guilty, and one who deserved this extraordinary Resentment of the Nation; and who would have been brought to Justice in the ordinary Manner, if he had not eluded if, and made it impracticable; they thought, if it should appear, that the Nation would not be put off so, but make an Example of him, Posterity would applaud and thank them for it. They did not however condemn him, because he had protracted his Trial; but because he had been guilty of High-Treason, the worst of Treasons; which would have been proved against him in the ordinary Way of Proceedings, if he had not pretended to make Discoveries, and by that Means put off his Trial till a Witness was gone; and when he found himself out of the ordinary Reach of Justice, set the Justice of his Country in defiance: And if these were not sufficient Reasons to put him to death, yet they were sufficient to justify their Proceedings against him in this Manner. And notwithstanding Sir John was represented as too inconsiderable to endanger the Government; it appeared he was to have been a General, and was acquainted with a great many Officers: That he had not made an Atonement to his injured Country, as he ought to have done, by an ingenuous Confession; and unless they proceeded steadily against him, they should have none of the Discoveries they expected. Not that they would hang a Man because he would not confess; but, because he had been guilty of the deepest Treason, and aggravated his Offence in that Manner, he deserved to die; unless he would merit his Life by a Discovery of what he knew.'
Arguments against the Bill.
On the other hand, the Gentlemen who argued against the Bill, insisted, 'That the Person they intended to condemn by this Bill was forthcoming: He had been indicted, had pleaded, and was ready to undergo his Trial in the ordinary Courts of Justice: That the meanest Subject was entitled to a Trial by Jury: Even the Regicides who actually murdered the King, and did not fly, were admitted to a Trial in the ordinary Courts of Justice, though a Bill of Attainder passed against the rest: And it must be thought strange, that the same Parliament, which passed an Act requiring two Witnesses in Treason, should pass an Act to put a Man to death without one legal Witness, and without allowing him any Trial at all. If Mr. St. John's Position in Lord Strafford's Case was admitted, (viz.) That a subsequent Law might be made, to take away a Man's Life, without any Evidence, other than the private Opinion or Conscience of every particular Lawmaker; then no Man was safe. In the Lord Strafford's Case, the Proceedings were first by Impeachment: The Witnesses had been examined upon Oath in the House of Peers: and the Bill of Attainder recited, that the Facts had been fully proved. But for a Bill to begin originally in the House of Commons; and Judgment to be given there to deprive a Man of his Life, and all that was valuable, without the Sanction of an Oath, was extremely hard.—That Bishop Burnet, in his History of the Reformation, had observed, that such Bills could not be enough condemned; for that they were a Breach of the most sacred and unalterable Rules of Justice. Had the Government been in danger from the Prisoner, indeed ordinary Rules might have been dispensed with: But this being for an Offence committed a Year before, the Persons executed who were concerned in it, and all the Danger over, there could be no manner of Reason for resorting to their Legislative Power to punish this Man: The most that could be thought reasonable in this Case, would be, to enact, that Goodman's Evidence, the Witness who was fled, should be read at his Trial: They could not condemn the Prisoner, and thereby put him in a worse Condition than if Goodman was here; for then he would have had a Trial by a Jury, the Benefit of his Challenges, the Witnesses sworn, and might have made his Exceptions to their Testimony; all which he was deprived of here: That the Parliament had Power to make such a Law, was admitted; but they thought it ought not to be used but upon extraordinary Occasions, when the Offenders were so big, that they could not otherwise be brought to Justice; or where the Crimes did not fall under the Denomination of the Common Law, which was not the present Case: That there was not one Precedent for attainting a Person who was in Custody and forthcoming; but what had been universally branded: They were rather Reproaches to the ill Reigns they were made in, and to be marked out as Rocks to be avoided, than Patterns to be imitated: That though it was true they were not tied up by the Rules of Westminster-Hall, yet what was Reason and Justice in Westminster-Hall was so every where else; and so far as those Rules were founded on Reason and Justice, they ought to be imitated: That they had indeed made a Law to prevent People's being executed by an Arbitrary Power, and in an unlawful Manner in WestminsterHall; but if they made this Example, the Subject might be perpetually executed here, and would be never the safer for the Bill of Treasons: That after this Precedent, every Man would be in danger of being proceeded against in like manner; and we might see Parties hang one another by Turns, with great Violence. Some Gentlemen indeed had said, they did not aim at the Prisoner's Blood, but at his Confession; and so he was to be racked to Death from one reading of the Bill to another, and possibly might come to be hanged at last, not for High-Treason, but for not confessing it. As to the Safety of the Government, which was pretended they did not see how the Safety of the Government depended, upon his Life; or that it would be a Penny the worse if the Bill did not pass: The Preamble to the Bill for attainting the Duke of Monmouth gave a substantial Reason for it, that he was in Arms and could not be brought to Justice, which implied that if he could have been brought to Justice, they would not have attainted him: They did admit indeed, where the Government was at stake, and nothing could preserve the Kingdom but breaking through the settled Forms, there the Government might, and in all such Cases would, break through them, whatsoever Rules were prescribed; but they did not think Sir John Fenwick's living or dying of that Consequence as the passing this Bill of Attainder was. As to the Allegation of his having protracted his Trial, it was natural, and what every body in such Circumstances attempted, and could not be a sufficient Ground to attaint him: And as to his being instrumental in withdrawing the Evidence, this was neither proved, or so much as suggested in the Bill; and if it had, did not demand so severe a Punishment, any more than his having aspersed some great Men, as the Bill charged: That it was true, he had charged some Gentlemen, and it was very hard they should sit as Judges on the Person who accused them, and endeavoured to baffle his Evidence, by cramming a Bill of Attainder down his Throat: And there were other Gentlemen in the House, who were the King's Counsel and Prosecutors; and it was hardly agreeable to Justice, that these should sit in Judgment on the Prisoner: That High-Treason indeed was a great Crime, but what was there in this Case to make it differ so much from other Treasons, that they must proceed in this extraordinary manner? He had aspersed great Men, he had prevaricated with the Government, and protracted his Trial till a Witness was withdrawn: But if these Reasons were sufficient to induce them to have recourse to a Bill of Attainder, then whenever there should be but one Witness for the future, by virtue of this Precedent, the Legislature must interpose, and a Bill of Attainder be brought in. True it was, this might sufficiently convince Men that they could never be safe, how artful soever they were in practising against the Government: But then, what Security to the Subject were all the Laws made for regulating Trials in Cases of Treason? If when there was but one Witness, and perhaps not one, the Person accused might be taken out of the ordinary Courts of Justice and condemned to die, because common Fame had declared him guilty: And if Goodman's Paper, who was withdrawn, was to be admitted as an Evidence before the House, the Consequence of that would be, that, if a Minister of State could hereafter get an Examination sworn before a Justice of Peace, and then send the Witness away, a Bill of Attainder might be clapped on the Back of the Party accused, and this should be deemed sufficient Evidence to destroy him: If after this Precedent, forty Men should be taken up for a Plot, and there should be two Witnesses against twenty of them, and one against the other twenty, then a Bill of Attainder must be brought in to condemn the latter without legal Evidence: And if this was to be the Method of proceeding for the future, Men would be more unsafe than they were before the Acts of Treason were made, inasmuch as Parliaments were as liable to be influenced as Juries, and their Power as irresistable.
'That most of the Attainders which had been produced as Precedents had been reversed; because the Persons condemned had not had the Benefit of the Law, and if that was a good Reason for reversing such Attainders, it was a good Reason also why they should not proceed by Attainder: And to tell them the Government was in Danger, and that the Fate of England and Europe depended on this Bill, was certainly offered, rather to amuse than convince them; it was impossible the Government could be in Danger from one they had in their power, and might restrain him of his Liberty for Life, and whose Estate and Interest were so inconsiderable. It was strange, the Government could not support itself without taking away the Life of such a one, contrary to the Rules of Law.
The Bill pass'd on the second reading, with an Amendment.
These Debates having continued till Eleven at night, the Question was put, That the Bill be committed, which passed in the Affirmative, Ayes 182, Noes 128: But the Committee made an Amendment, by adding the following Words to the Bill, viz. of which Treason Sir John Fenwick is guilty.
Divisions on a Bill for further regulating Elections.
The 23d, the Question was put for the second reading of a Bill for farther regulating Elections of Members. (Against which, the principal Cities had petition'd, as calculated to incapacitate several Persons for want of Estates in Land from being elected.) It pass'd in the Affirmative, Yeas 50. Noes 43.
The Bill to attaint Sir John Fenwick order'd to be ingross'd.
The same Day Mr. Norris, from the Committee of the whole House, reported the Amendments made to the Bill to attaint Sir John Fenwick, which were agreed to; and the Question being put, that the said Bill and Amendments be ingrossed; it passed in the Affirmative, Yeas 125. Noes 88.
The Coin-Bill pass'd.
Report of the Committee appointed to inspect the State of Trade.
The same Day, Mr. Blathwaite presented the Report of the Committee appointed to inspect the Trade of this Kingdom; in which the Dearness of Labour, the Exportation of Wool, (properly called the selling the Trade instead of the Commodities of the Kingdom,) the importing prohibited Goods, by Smugglers, the pernicious Art of Stockjobbing, and the Neglect of our Fisheries, are made appear to be the principal Reasons, why the Commonwealth was not in so flourishing a State as might be both expected and attained.
Report of the Miscarriage of the Land-Bank.
The same Day, likewise, Mr. Chancellor of the Exchequer, according to Order, presented to the House an Account how the 2,564,000 l. designed to be raised by a Duty on Salt, Glass, and Tobacco-Pipes came to fail; the Account of which was, that after all manner of Expedients had been proposed by the Commissioners (for taking Subscriptions to the National Land-Bank,) to render their Project palatable to the Public, the Books were open'd at Exeter-Change, June 5. when the Lords of the Treasury subscribed 5000 l. on the King's behalf: That 2100 l. more was all subscribed, between that and the Expiration of the Term limited by the Act for taking the said Subscriptions. And that the said Commissioners ascribed the Cause of their ill Success to be the large Interest allow'd upon all Securities both public and private, at the same time that they were limited to 5 per Cent.
The 25th, the Bill against Sir John Fenwick was read a third time, and (fn. 2) several Speeches where made for and against it; the Substance of which is contain'd in the two following.
'Mr. Methuin, Mr. Speaker, I have not troubled you in any of those long Debates you have had on this Occasion, and do it unwillingly now; but I do think it every Man's Duty, in a Case of this great importance, freely to own his Opinion, and give his Reasons for it.
'The greatest Part of the Debate hath run upon two things: On the one side, the Inconveniency of Bills of Attainder, or at least the having them too frequent: On the other side, that it is necessary to have them sometimes, that no Persons might think they were out of reach, if they could evade the Laws that were made to punish ordinary Offenders.
'I think both these Points too general, and that this Bill (as every other) ought to have its fate upon the particular Circumstances of the Case before you; and whoever gives his Affirmative to this Bill, ought to be convinced that Sir John Fenwick is guilty of High-Treason; and also that there are extraordinary Reasons why the Nation does prosecute him in so extraordinary a Manner: And I do think neither of these is sufficient alone.
'If between the Indictment and Arraignment or Trial, Goodman should have died, and there had been no other reason for attainting Sir John Fenwick, but only the want of his Evidence; I should not have thought it a sufficient reason, though we should have an Opportunity of being informed of his particular Evidence, and believed him guilty: And if Sir John Fenwick does not appear guilty, I do not think any Reason of State can justify this Bill, though he hath prevaricated and behaved himself to the Dissatisfaction of every body; therefore I think, there must be both these.
'You have heard the Evidence, and I shall not repeat it, but rather come to those things that distinguish Sir John Fenwick's Case; only this, you have received the Evidence against Sir John Fenwick, and given him liberty to make his defence, and have fully heard him; which, I think, hath altered the reason of a great many Precedents, cited from my Lord Coke and other Authors.
'That which distinguishes this Case, is, the great danger the Nation was in from this Conspiracy, and the Sense the Nation hath had of it; and I find, by the general Opinion of all Persons, this danger is not thought yet at an end.
'The next Circumstance is, that Sir John Fenwick, knowing this and the expectations the Nation had from him, that he could have contributed to your safety, hath made use of that to put off his Trial; and, at last, has made such a Paper, as does shew an inclination to do you all the prejudice he can; by pretending to create new dangers; and by this means Sir John Fenwick, against whom there were two Witnesses when he was indicted, hath delayed his Trial, so that now there is but one; and there is a violent presumption that this Person is withdrawn by the practice of Sir John Fenwick's friends.
'There remains yet with me as great a Consideration as any of these; the public Resentment of the Nation for such his behaviour, is the only Means his practice has left you to prevent the danger that yet remains; and it seems necessary for your safety, to take the next best way, to that he could have led you to by his discovery. Against the Evidence that hath been given, there have been great Doubts raised, not so much whether it be such Evidence as ought to incline us to believe him guilty: But whether it be such as you should hear in the capacity you are in; and after it is found such as it is, that is to say, not such as would convict him upon another Trial, whether you ought to credit it, and that it should influence you to give your Vote for this Bill of Attainder? This is a doubt that I find weighs generally with them that differ from me in Opinion about this Bill; and therefore I desire leave to speak to that particular.
'Tis said, that you are trying Sir John Fenwick, that you are Judges, and that you are both Judges, and Jury, and that you are obliged to proceed according to the same Rules, though not the Methods of Westminster-Hall, secundum allegata & probata.
'But the State of the Matter, as it appears to me, is, that you are here in your Legislative Power, making a new Law for the Attainting of Sir John Fenwick, and for exempting his particular Case from being tried in those Courts of Judicature, and by those Rules which you have appointed for the Trial of other Causes, and trying of it yourselves (if you will use that Word, though improperly) in which Case the Methods differ from what the Laws made by yourselves require in other Cases; for this is never to be a Law for any other.
'Methinks this being the State of the Case, it quite puts us out of the Method of Trials, and all the Laws that are for limiting Rules for Evidence at Trials in WestminsterHall, and other Judicatures; for it must be agreed, the same Rules of Evidence must be observed in another Place, as well as Westminster-Hall, I mean in Impeachments; and it has always been so taken.
'The Notion of two Witnesses being necessary, has so much gained upon some Gentlemen, that we have had it said, that this is required by the Law of Nature, the universal Law of Nations; may, by the eternal Law of God, and I think, if it was so, there would be no doubt but it would oblige us.
'And therefore to go to the bottom of the Matter: That any Man deserves to be punished, is because he is criminal: That this or that Man deserves it, is because he is guilty of a Crime, let his Crime be made evident any way whatsoever: For whatsoever makes the Truth evident, is, and is accounted in all Laws to be Evidence.
'Now, the Rules for examining whether any Person is guilty, or not, and the Evidence that is allowed as sufficient, is different in all Nations: No two Nations agree in the same Evidence for the Trial of Criminals, nor in the Manner of giving the Evidence against them.
'Your Trials differ from all other Nations, not only that you are tried by a Jury, which is particular to you, but that the Witnesses are to be produced Face to Face before the Offender; and you have made Laws, that there shall be two Witnesses in case of High-Treason; and herein you are the Envy of all other Nations.
'Sir, the Evidence that is to be given against Criminals, differs in the same Nation, when the Offence differs; there is a Difference between the Evidence that will convict a Man of Felony, and the Evidence that is to convict a Man of Treason; and the Evidence to convict a Man for the same Crime, hath been different in the same Nation at different times. No doubt, by the Canon-Law of England, that Evidence was sufficient to convict a Man of any Crime, which was sufficient to make the Jury believe the Person guilty. Thus before the Statute of Edw. VI. a Man might be convicted of Treason by one Witness; though that Statute was made upon great reason, and appears to be for the Public Good, by the general Approbation it hath received; yet I don't think in your Proceedings here you are bound by it.
'But Sir, it is said, shall we that are the supreme Authority, (as we are part of it) go upon less Evidence to satisfy ourselves of Sir John Fenwick's Guilt, than other Courts? And shall we resort to this extraordinary way in this Case?
'Truly, if it shake the Manner of Trials below, I should be very unwilling to do it; but I do take it clearly, that it cannot make the least Alteration in the Proceedings of any Court; but on the contrary, I think there is no stronger Arguments for your resorting to this extraordinary Way, than that of the Care and Caution with which your Law hath provided for Defence of the Innocent. For if we consider all those Laws that have been made for that Purpose, tis plain it must have been in the View of our Ancestors, that many Criminals might by this means escape. Your Laws are made for your ordinary Trials, and for those things that happen usually; and there is no Government we know in the World, where there is not Resort to extraordinary Power, in Cases that require it. Your Government indeed hath this Advantage, that you can keep to Rules which others cannot: For in a very wise Government (as was observed by a Person that was in this House the last time this was debated) all the Ways of punishing Crimes of this nature, are extraordinary. Persons are condemned there, not only unheard, but they are condemned before they are accused, and that is thought necessary there, which will not be endured here: And yet that Government hath continued so many hundred Years, and no endeavours have been made to alter it, though so many noble Families have suffered by it; because they are convinced, as to their Constitution, 'tis necessary.
'The next Argument is from the Precedent you are about to make; and you have been told, whatever the other Precedents have been, what you do now will be a Precedent for you and your Posterity: And whilst the Argument is used only to make you cautious, and to make you consider well, whether it is according to your Duty to your Country to pass this Bill, (which no doubt is the only Question before you) 'tis a good Argument.
'Sir, if this Precedent shall appear to Posterity to be a Precedent of an innocent Man, or a Person whose Guilt was doubted of, or one whose Guilt did plainly not appear, and this Bill should be carried by a prevailing Party, I do agree it were a very ill Precedent: But if the Case be, that this Precedent will appear to Posterity upon the Truth of the thing, to be a Precedent made of a Man notoriously guilty, of a Man that had deserved this extraordinary Way of Proceeding, and this general Resentment of the Nation, and that nothing could have hinder'd this Man from the common Justice of the Nation, but his having endeavoured to elude it in this Matter; and if it appears that you would not be put off so, but that your Indignation made an Example of this Man, I shall not be sorry it should appear to Posterity; but I believe Posterity will (as I think they ought) thank you for it.
'Sir, I do say for my own Particular, while I am innocent, I should not think my Life in Danger to be judged by 400 English Gentlemen, and the Peerage of England, with the Royal Assent: And, when I reflect, I cannot be of Opinion, that the Government could have procured a Parliament, to have passed a Bill of Attainder against my Lord Russel, or Mr. Cornish, or Mr. Colledge: I do not think all the Power of the Government could have prevailed to have done that, although they could prevail to have them condemned by the Forms of Law. And here I see that a great many Gentlemen have opposed every Step of this Bill, for fear of making an ill Precedent: Yet these Gentlemen do believe in their own private Consciences, that he is guilty: And I cannot think that any innocent Person can be in danger by such a Bill, when Gentlemen oppose this Bill only upon the prudential Part, though they still confess him to be guilty.
'The Conclusion I make for myself is, that I am convinced in my Conscience (which I think is sufficient, when I act in the Capacity I now do) that Sir John Fenwick is guilty of High-Treason, and that there are Reasons so extraordinary to support this Bill of Attainder, that I do not see how any Person that is so convinced, can refuse to give his Affirmative to this Bill.'
Sir Godfrey Copley's Speech against the Bill.
Sir Godfrey Copley: 'Sir, I am very sensible a great deal hath been said upon this Subject, but I think there is something in Duty incumbent upon every Man, especially upon me, who cannot concur with the general Sense of the House, to give my Reasons for my Disagreement; and I will make use of no Arguments, but such as I cannot answer myself. A great deal hath been said upon this Debate by Gentlemen learned in the Law; and many of these, though they have said they would not speak against the Power of Parliaments, yet the greatest Part of their Arguments have touched upon your Method of Proceedings; and to shew you how they interfere with the Rules of WestminsterHall: So great is the force of Custom and Education! But I acknowledge some have brought us Arguments quite of another Strain.
'I take the Punishment of Offenders to be one of the necessary Supports of all Governments; and all Societies of Men have laid down to themselves some Rules, by which they judge whether Persons accused are innocent or guilty: Therefore, in a Matter of this extraordinary Importance, it is proper to consider what Rules we have to go by.
It is the Custom and Law of our Nation, to require two positive Witnesses to prove Treason; and though, I think, without the utmost necessity it is not prudent to deviate from that Rule, yet I will not argue from thence that we are tied up to it: No, it is most certain on the other hand, that the Legislative Authority, which hath Power, if they think good, to abrogate all Laws now in being, cannot be tied up to any Rules of human Prescription. But Sir, there are the eternal Rules of Equity, and Justice, and right Reason, and Conscience; and these I think are unalterable and never to be swerved from: And therefore I shall take the liberty to see how far agreeable our Proceedings are to these Rules.
'Sir, I look upon it as a fundamental Breach of those Rules, for an Accusation to be given in against any Man behind his Back, by he knows not whom, or by any with whom he is not confronted, and brought Face to Face.
'I am one of those that look upon Sir John Fenwick to be guilty, and there is a Proof of it by one Witness; and to this you have added an Indictment that is proved. Now I must needs own, that I think that to be so far from giving any Credit or Strength to the Evidence, that in my Opinion the Injustice which attends it, makes the Scales lighter than they were before; for if any Bill or Writing sworn behind a Man's Back, may be used as part of Evidence, I do by parallel Reason argue, that the like may make up the whole at one time or other; and then the Information of any two profligate Knaves before a Secretary of State, or a Justice of Peace, shall be sufficient, without any living Testimony, to make a Man run the Hazard of his Life.
'Then Sir, I am not at all convinced of the necessity of this Proceeding: I must confess, that those that brought this Matter before us, are much wiser than I, and therefore I will not examine what reason they had to do it; but it is so little agreeable to me, I wish it had not come here. But is it to be supposed that your Government is in hazard by any Man that is fast in Newgate? Can any Man think, that Sir John Fenwick can do any thing in his Condition, to hazard it? Can you expect that a Man that hath been six Months in Prison, and no body came at him, that he may make such a Discovery as may be worth your while? But suppose you had a Man of Invention and Practice, what a Spur do you put to it? May not a Man of Parts, when he hath no other Way to save himself, may not he form such a Plot, as (should it gain Belief) might make the best Subject in England tremble?
'Tis not Sir John Fenwick's Life which I argue for; I do not think it of so great Value, to deserve so long and solemn a Debate in this House, nor the Consideration of so great an Assembly after this manner. But I do say, if this Method of Proceeding be warranted by an English Parliament, there is an end to the Defence of any Man living, be he never so innocent.
'Sir, I remember I heard it mentioned on the other side of the Way, by an honourable Person, who never lets any Argument want its weight, that King James attainted a great Number of Persons in a Catalogue, in a lump. Sir, I am not afraid of what arbitrary Princes do, nor an Irish Parliament; but I am afraid of what shall be done here: I am concerned for the Honour of your Proceedings, that it may be a Precedent to a future Parliament, in an ill Reign, to do that which, I am satisfied, you would not do. I had some other Thoughts, which I cannot recollect, though these Reasons are sufficient to convince me.'
Members for and against the Bill. ; The Bill carry'd.
The other Members who spoke for the Bill, were Mr. Montague, my Lord Cutts, Sir William Strickland, Sir Herbert Crofts, Mr. Vernon, Mr. Smith, Mr. Boscawen, Mr. Cowper, Mr. Sloan, Col. Wharton: Those who spoke against the Bill, were Sir Charles Carteret, Mr. Manley, Mr. Dolben, Sir Edward Seymour, Sir Robert Cotton, Lord Norreys, Mr. Hammond, Mr. Bromley, Mr. Harcourt, Sir Richard Temple, Mr. Paget, Mr. Jefferies, Mr. Edward Harley. After the Arguments had been offered on both sides, the Question was put for passing the Bill; whereupon the House divided, and it was carried in the Affirmative by 189 Voices against 156, and sent up to the Lords by Mr. Norris.
The 27th, a Motion being made for a Time, when the House should Resolve itself into a Committee on the Grievances of the Kingdom, an Amendment was offer'd to it, by inserting the Words State of the Nation, instead of Grievances, and carry'd in the Affirmative, Yeas 137, Noes 113.
Proceedings on Ways and Means.
The Ways and Means of raising this Supply were, first, a general Capitation or Poll-Tax: Secondly, a Tax of three Shillings in the Pound upon Land: And thirdly, a Duty upon all Paper, Paste-board, Vellum and Parchment, imported or made in this Kingdom.
But still the greatest Difficulty of all, was the Loss of Public Credit: For the Tallies struck, or Funds settled by Parliament, especially such as were remote, were exchanged for ready Money, at a mighty Loss: And the Government was obliged to make excessive Discounts and Allowances to bring Treasure into the Exchequer. This great Loss of Credit, which was like to prove fatal to our Affairs abroad the last Summer, arose chiefly from two things, First, the Deficiencies of Parliamentary Funds, particularly the unhappy Project of the Land-Bank, which proved wholly abortive, and did not produce one Penny of above two Millions and a Half with which it was charged: Secondly, the Recoining of our Silver. The first created Trust, and the latter destroyed it, by making Money to be very searce. 'Tis easy to imagine what perishing Circumstances the Nation was in, when the Notes of the Bank of England, which had been a mighty Help to the Public, were discounted at twenty, and Tallies at forty, fifty, or sixty per Cent. The Government had contracted a great Debt; some Funds were wholly taken away, and the rest proved deficient; great Numbers of Tallies were on Funds very remote, and many had no Funds at all. Hereby the Trust and good Opinion of the People were so far lost, that those few who had any Money to lend, shewed the greatest Backwardness imaginable to bring it into the Exchequer, when they could Stockjob it to so great Advantage upon the Royal-Exchange; and therefore all Loans to the Government were procured on exorbitant Præmiums.
All Men were amazed and confounded at this Obstruction to Trade and Credit, and hardly believed that the Wit of Man was able to find out an Expedient, that could be effectual to retrieve so great a Mischief. The Nation is the more obliged to the Wisdom, Sagacity, and Eloquence of Mr. Montague, Chancellor of the Exchequer, who animated the whole Design, and projected the most likely Methods to bring it to a happy Effect. The 25th, the Commons had Resolv'd, That a Supply be granted to his Majesty to make good the Deficiencies of Parliamentary Funds; and afterwards ordered an Estimate to be laid before them, of what Sums were, or would be wanting to satisfy and discharge all Principal and Interest due, or to become due on the several Aids, Duties, or Funds, over and above all Arrears, standing out upon them which were determined; and besides all Moneys to be raised by such as were then unexpired. And the (fn. 3) Computation of all the particular Sums that were wanting to make good all the deficient Funds, being made, the Whole amounted to five Millions, one hundred and sixty thousand, four hundred Pounds. Having now got to the Bottom of the Disease, they Resolved on a thorough Cure. For being sensible, that had some Deficiencies been taken care of, and others neglected, Public Credit must have continued lame, and the Government have halted, if it had not fallen to the ground; they judged it of absolute necessity to make Provision for the whole; that so there should remain no Tally without a Fund, nor any Tally on a deficient Fund, but what in its Course of Payment should be satisfied and discharged. In order to this, they continued divers Duties arising not only by the Customs, but by continued and additional Impositions; Paper and Parchment, Births, Marriages, and Burials, Windows, the Subsidy of Tonnage and Poundage, after the Day on which they would otherwise have expired, to the first day of August, 1706. And appointed all the Moneys which should arise, and be brought into his Majesty's Exchequer from any of these Taxes or Duties, from the Day on which they were otherwise to expire, to the said first Day of August, 1706, to be the general Fund for making good all the deficient ones, by the Satisfaction and Payment of the Principal and Interest due, or become due thereupon. And that all Occasion of Complaint might be removed, and equal Provision made for all, the Parliament directed that all Moneys arising from the Duties, so as before continued and appropriated for the general Fund, should be distributed and applied to pay Principal and Interest upon every one of the deficient Funds, in proportion to the Sum of which they were deficient; and that all the Money which should be in such a due Proportion distributed, or placed to the Account of each deficient Tax or Fund, for the Discharge of Principal and Interest, should be paid out to all who were entitled to receive the same, in such Course and Order, as if the same were Moneys really arising by the respective deficient Funds, and that without being diverted, misapplied, or postponed; and made the Officers of his Majesty's Treasury liable to great Penalties, in case this Method were not observed. Moreover, to remove all Doubts about the Security intended to be given, in case on the first of August, 1706, or within three Months, then next ensuing, the whole Produce of the several Funds and Revenues appropriated for a general Fund, together with other Grants then in being, should not be sufficient to discharge the Sum of five Millions, one hundred and sixty thousand four hundred Pounds, intended to be discharged; that then what was deficient, should be made good out of such Aids or Revenues, as should be granted in the next Sessions of Parliament. Thus the Commons, by an admirable Stroke of Wisdom, as well as a noble Act of Public Justice, provided a sufficient Security for this great Debt that lay heavy on the Nation; which was all that could be demanded or expected, at a time when Money was not in being, and therefore not to be had. And because all the Branches of Public Credit did plainly depend on, and mutually support one another, the Parliament took into Consideration, by what Means they might buoy up the Credit of the Bank of England, which was then ready to sink.
In order to this, the Parliament on February 3d, agreed to augment the common capital Stock of the Bank of England, by admitting new Subscriptions; which new Subscriptions should be made good in Tallies and Bank Notes. The proportion was four fifths of the first, and one fifth of the last, and an Interest of eight per cent. was allowed, as well for such Tallies that should be brought in, to enlarge their Stock by Subscription, as for those Tallies which the Company was then possessed of; provided they did not exceed the value of those Bank-Notes, which should be paid in upon this engraftment on their Stock; and for securing the Payment of this Interest of eight per cent. The additional Duty on Salt was afterwards granted and appropriated. The time of the Continuance of the Bank of England, they thought fit to extend to the Year 1710, and resolved likewise, that before the day was fixed for the beginning new Subscriptions, the old Stock be made one hundred per cent. and that what should exceed that value, should be divided among the old Members: That all the Interest due on those Tallies which would be subscribed into the Bank-Stock, at the time appointed for Subscriptions, (to the end of the last preceding Quarter, on each Tally) be allowed as Principal. That Liberty be given by Parliament to enlarge the Number of Bank-Bills, to the value of the Sum which should be so subscribed, over and above the 1,200,000 l. provided they be obliged to answer such Bills at demand; and in default thereof, to be answered by the Exchequer out of the first Money due to them. That no other Bank be erected, permitted, or allowed by Act of Parliament, within this Kingdom, during the Continuance of the Bank of England. That on such new Settlement, the Bank of England be exempted from all manner of Parliamentary Taxes. That no Act of the Corporation should forfeit the particular Interest of any Person concerned therein. That Provision be made for the effectual preventing the Officers of the Exchequer, and all other Officers and Receivers of the Revenue, from diverting, delaying, or obstructing the Course of Payments to the Bank. That care be taken to prevent the abetting, counterfeiting, or forging any Bank-Bills or Notes; as likewise against the defacing, raising, or altering any Indorsement upon any such Bill or Note. That the Estate and Interest of each Member in the Stock of the Corporation, be made a personal Estate. And lastly, that no Contract or Agreement made for any Bank-Stock to be bought or sold, be valid in Law or Equity, unless the said Contract be actually registred in the Books of the Bank within seven Days, and actually transferred within fourteen days next after the making such Contract. Upon which Encouragements, a Million was subscribed and paid in Tallies and Bank-Notes, as the Parliament had directed. This Expedient was the Result of Mr. Charles Montague's Skill and Prudence, and tho' many Persons who were interested in it, could not presently apprehend the Reasonableness of it, yet the Advantages they afterwards received, did fully convince them, that no other way could have been found to call back their sinking Credit: For the Value of two hundred thousand Pounds in Bank-Notes being sunk by the new Subscription, the rest, as it was reasonable to believe they would, began presently to rise in worth; and so likewise did the Tallies, after so many as amounted to eight hundred thousand Pounds were paid in to enlarge the Bank. Upon this the Credit of the Bank recovered apace, till in a short time their Notes, which bore no Interest, were equal with Money, and their Bills that bore Interest better than Money: And by this means the Face of Affairs was quickly much changed for the better; Credit began to revive, and Money to circulate on moderate terms; foreign Affairs were less to our disadvantage, and soon after came to an equality: And whatever hardships the People had undergone, by reason of a long and expensive War, and the recoining the SilverMoney, which could not but occasion many Complaints, yet the greatest part attributed this to the Necessity of Affairs, and began to hope, both from the Prospect of a Peace, and the Wisdom of those at the Helm, that they should enjoy more favourable Times.
Want of Money in specie.
Another Evil of no less Difficulty or Importance than the loss of Credit, (and which, as was hinted before, was one of the Springs of the latter) remained still to be removed; and that was the great Scarcity of Money. The Parliament, to prevent disappointments, by settling Funds which might be deficient, came to a Resolution on November 20th, That the Supplies for the Service of the Year 1697, should be raised within the Year. But how could above five Millions be raised within the Year, while the Silver-Money was called in, and recoining, and there was not current Coin enough in the Nation, to answer the Occasions of Trade, and scarcely the Conveniencies and Necessities of Life? This Vote of Parliament seemed impracticable; the Enemies of the Government made themselves merry with it, and instead of raising their Spleen, 'twas the Entertainment of their pleasant Humour: And many, even of the best Friends of the Government, imagined that the Parliament by this, rather expressed their Zeal and Willingness, than their Ability to support the State, and maintain the present Settlement. But this Parliament, for whose Wisdom it was reserved to surmount Difficulties, that were looked on as invincible, made Money without Bullion, and distributed great quantities of Coin without the help of the Mint. This they did by authorizing the Lords of the Treasury, to issue out Bills from the Exchequer, to the value, first and last, of above two Millions; which Bills were first appointed to be brought in, and sunk upon the Capitation Tax. But before the Session ended, the Parliament being convinced by the first Collection of that Duty, that it would prove very deficient; they appointed the Exchequer Bills to be brought in, on any other of the King's Duties or Revenues, excepting the Land-Tax; and allowed an Interest of seven Pounds twelve Shillings per annum, upon the second issuing the said Bills out of the Exchequer, whereas at first they bore no Interest. By this the Parliament laid a good Foundation for PaperMoney to supply the Place of our Silver-Coin; for so many Payments were at this time to be made into the Exchequer, that when the People had assurance given them, that the Exchequer-Notes should be received back again in Payment of the King's Taxes, they were very well satisfied to take them, at first indeed at a small Discount, but not long after at an equality. A great Number of these Notes were only for five or ten Pounds, which answered the Necessity of Commerce among the meaner People, for the common Conveniencies of Life. And that those who had advanced Money on Loans on any Part of the King's Revenues, might not be obliged to receive it back in Notes that were under the Value of Money, to strengthen the Reputation of these Bills, the Parliament authorised the Lords of the Treasury, to contract with any Corporation, or Numbers of private Men, and to allow them a competent Præmium, provided they obliged themselves to exchange those Notes for Ready Money, when tendred to them for that purpose; which the Lords of the Treasury did accordingly. The Credit of the Exchequer Notes being thus secured, they daily rose nearer to par, till at last they exceeded the Value of Money: And whereas the Trustees, with whom the Government had contracted to exchange them, were at first allowed ten per cent. as a Præmium, they were since contented to do it for four. These Bills passed as so many Counters, which the People were satisfied to receive, because they knew the Exchequer would receive them again as so much ready Money: And these State-Counters so well supplied the want of Money, till new Coin was issued from the Mint, that Trade and Commerce were maintained, and mutual Payments well enough made, to answer the Necessities of the Government and the People. This Project (which proved an effectual, tho' a Paper-prop to support the State, when its Silver-Pillars, if I may so speak, were for a time removed) was likewise owing to the Prudence and Industry of Mr. Charles Montague, as well as that of re-coining the Money; which those very Men who envied most his Success in the House of Commons, and growing Power at Court, were afterwards contented to call a fortunate Temerity.
Royal Assent given to several Acts.
December 3. His Majesty gave the Royal Assent to the following Bills, viz. An Act for importing and coining Guineas and Half-Guineas. An Act for explaining an Act relative to the Duties on Low Wines, and Spirits of the first Extraction. And an Act for the further remedying the ill State of the Coin.
Copies of Grants from the Crown read.
A Grant to the Earl of Rochford, of all the Messuages, and Tenements belonging to Powis-House, (the House itself was excepted) divers Messuages and Lands in the Parish of Hendon, together with the Rectory and Advowson of the said Parish; at the yearly Rent of 13 s. 4 d. Likewise all Arrears and Mesne Profits arisen and payable out of the late Marquiss of Powis's Estates in the Counties of Northampton and Montgomery, now about to be pass'd to the said Earl; likewise all Bonds, Mortgages, Debts, Sums of Money, Goods, and Chattels, and other the personal Estate belonging to the late Marquiss, and forfeited by reason of the High-Treason by him committed.
A Grant to the Earl of Portland of the Mannor of Grantham, the Honour of Penrith, the Mannor of Drachlow and Radheath, the Mannor of Torrington, the Mannor of Pratington, Bristolgarth, Hornsey, Thurry, Barnsley, and Leven, all part of the Ancient Revenue of the Crown of England: And of the Mannor of Pevensey, parcel of the Dutchy of Lancaster, together with the Mannor of EastGreenwich, to have and to hold for ever, at the yearly Rent of 13 s. 4 d.
A Grant to Charles Bertie, Samuel Travers, James Herbert, and Richard Powis Esqs; of Nercomb Farm, a Tenement in King-Street, Deptford, a Ditch or Piece of Ground there, a Close called West-Bromfield, together with certain other Lands in Deptford aforesaid. The Rents of Assize in East-Peckham, Rents of Assize in East-Farleigh; likewise the TreasuryRents there; all in Kent: The Manors of East-Molsey, Hampton-Court Ferries, the Fisheries there, Richmond-Ferry, three Tenements call'd the King's-Bench, the Crane, and the Pike-Garden, in Southwark; the Scite of the Monastery of East-Sheen, all in Surry: The Lands called Northley, and Bernard's Castle; likewise Oldbury and Seabeth in Sussex: Compthill-Park in Bedfordshire: Certain Lands in Shotover and Stowood, and certain other Lands in Oxfordshire: The Manor and Park of Marybone; a third part of the Demesnes of the Forest of Gillingham in Dorsetshire: The Herbage, &c. of the Forest of Mara, in the Manor of Macclesfield: The Bailywick of the Hundred of Northwich: The Fraternity of Ively in Cheshire, the Tythes of the Vicarage of Hallifax, with their Appurtenances, to have and to hold from the Decease of Katherine now Queen Dowager of England, at the Yearly Rent of 3 l. 13 s. 4 d. ½ for 35 Years.
A Grant to John Agar Esq; at the Nomination and Desire of Arthur Earl of Torrington, of the House and Scite of Oatlands in Surry; together with certain Chambers in Serjeants-Inn, forseited by the Attainder and Outlawry of Sir Edward Herbert, as likewise of his Majesty's Manors of Greenwich at the Yearly Rent of 13 s. 4 d.
A Grant to the Lord Cutts of the Hundred of Durnford, and other Manors, Castles, Towns, Rectories, Advowsons, Goods, Debts, Chattels, &c. forfeited by the Outlawry of John Caryll Esq; at the Yearly Rent of 13 s. 4 d.
A Grant to Thomas Hall Esq; of St. James's Market with its Appurtenances, for 99 Years, to commence at the Expiration of a Term (of 44 Years, which was then to come,) granted to the late Earl of St. Albans.
A Certificate was then read of the vacating a Grant by Tally of 24,571 l. 5 s. 4 d. as of his Majesty's free Gift and Royal Bounty, to the Earl of Portland, but not received, at the Desire of the said Earl.
Arrears due to the Navy, Army, &c.
|The same day likewise, by the Accounts presented to the House, it appeared that the Arrears due to the Navy amounted to l.||421,079||17||9|
|To the Army||1,850,197||13||0¾|
|To the Ordnance||58,321||1||9|
|For Transports||(fn. 4) 439,544||00||0|
Several Amendments to the Bill for the further regulating Elections, being then made, a Motion was made, that the said Bill with the Amendments be engrossed, and passed in the Affirmative, Yeas 183, Noes 157.
Account of Money coined.
Case of Conrade Greibe.
The 8th, the Committee appointed to examine the Petition of one Mary Greibe, made their Report; by which it appeared that Conrade Greibe, Husband of the said Mary Greibe, having undertaken to deliver two Petitions in behalf of certain Officers and Soldiers turn'd out of Count Stanbock's Regiment, to the King and Parliament, was the Day before seiz'd by one Kitson, a Messenger, by Warrant from Mr. Secretary Trumball, charging him with treasonable Practices. That he was kept in the said Messenger's hands ten Days; during which time, he had been oftentimes refus'd an Examination: And that at last about two or three o'clock in the Morning he was taken out of the Custody of the said Messenger by a Party of the Dutch Guards, who carry'd him on board a Dutch Vessel, from whence he was convey'd to Brussels, where he was thrown into a Dungeon, and is subsisted on Bread and Water only.
Resolved, That an humble Address be presented to his Majesty, that he will be pleased to cause the Informations in relation to Conrade Greibe, to be laid before the House; to which his Majesty by Message, the 23d, return'd the following Answer.
'His Majesty having receiv'd an Address from the House, whereby it was desir'd that he would please to cause the Informations, in relation to Conrade Greibe, to be laid before the House, is pleas'd to acquaint them, that upon the Discovery of the late Conspiracy against his Person and Government, the said Greibe was taken into Custody among other suspected Persons, as concerned in that Plot; and about the same time, several Informations being sent and delivered to his Majesty, whereby he appeared to be a very dangerous Person; his Majesty thought it for his Safety not to suffer him, being an Alien, to continue longer in this Kingdom; and did order the Duke of Wirtemberg, who was then going for Flanders, to transport him thither, in order to send him to the Elector of Brandenburg, his natural Prince, which was done accordingly: and the said Greibe was deliver'd to the General of the said Elector, who was by him appointed to receive him, together with the Informations.'
Enquiry into the Conduct of the Fleet ends in a Motion for Candles.
The 9th, the House took into Consideration, according to Order, the Books and Papers laid before the House, relating to the Fleet; and enter'd upon Enquiries how it came to pass, that the French Toulon Squadron was not intercepted when going into Brest: Upon which Vice-Admiral Mitchel having been examin'd, and several Letters to and from Admiral Russel having been read, a Motion was made, that Candles should be brought in, which pass'd in the Negative, Yeas 128, Noes 150. Upon which, the House adjourn'd.
A Clause to render Merchants eligible, as Members of Parliament, being worth 5000 l.
The 20th, the engrossed Bill for further regulating Elections being read the third time, an engrossed Proviso was offer'd and agreed to, to render any Merchant, being a natural-born Subject of England, eligible, on his making Oath, that he is worth 5000 l. in real and personal Estate: But no Person to be esteemed a Merchant, for having Money in the Bank, or any other Company.
Report of the Committee upon the Abuses of Prisons.
The 30th, Mr. Pocklington, from the Committee on the Abuses of Prisons, &c. among a Variety of other Matter, reported to the House, that one Brunskill a Sollicitor, had inform'd the said Committee, that Tilly (who had lately procured an Act of Parliament to enable Bromshall, an Infant, to sell his Interest in the Fleet-Prison; which he, Tilly, had purchas'd) as he was informed, should say, That he obtain'd that Act by Bribery and Corruption.
That one Mrs. Hancock applying to Tilly not to protect one Guy, being his Clerk of the Papers, because he was perjured, &c. Tilly refused her Request: Upon which, being ask'd how he would do, if the Matter should be laid before Parliament? he reply'd, he could do what he would there; that they were a Company of bribed Villains; that, to his knowledge, they would all take Bribes; and that it cost him 300 l. for his Share, and 300 l. for the other Shop (meaning the King's-Bench) for bribing a Committee last Parliament.
That she then, intimating that she must then apply to the House of Lords; he answered, it was only palming 5 or 6 talking Lords, and they would quash all the rest. And she then said, she would try the King and Council; he added, the best of the Lord-Keeper's Fees were from him: That as to the Judges, they were all such a Parcel of Rogues, that they would swallow his Gold faster than he would give it them; and that as to the Members of the House of Commons, they were many of them Members of his House.
Jan. 5th, the said Mr. Pocklington from the said Committee likewise reported, that it was prov'd to them by two Witnesses that one Francis Duncomb had likewise reported, that he had distributed Money to several Members.
Royal Assent given to several Acts.
An Act to attaint such of the Persons concerned in the late horrid Conspiracy, to assassinate his Majesty's Royal Person, who are fled from Justice, unless they render themselves to Justice; and for continuing several others of the said Conspirators in Custody: and several private Acts.
Orders for dispersing a Mob.
The 21st, a tumultuous Croud of People filling all the Passages to the House, and clamouring to have the Bill passed for restraining the Wear of East-India Silks; Orders were given to the Justices to disperse them: and it was resolved, That the inciting and encouraging any Number of Persons to come in a riotous manner, either to hinder or promote the passing any Bill depending before this House, being against the Constitution and Freedom of Parliament, is a high Crime and Misdemeanour.
Farther Proceedings on the Report concerning the Abuse of Prisons.
Accordingly, the said Report was read, and Mr. Tilly being brought to the Bar to make his Defence, he desir'd further time, and the House proceeded to take further Informations; on which occasion several Witnesses added yet farther Particulars to his Charge, and several endeavoured to prove that he was innocent of all: and that as it had been before urg'd, those who accus'd him were prejudiced Persons, and had enter'd into a Conspiracy against him; of which many Instances were enumerated before the House.
The whole Affair ended in ordering the said Report to be delivered to the Attorney-General and Solicitor-General, and that they do take care to prosecute the Persons concerned for the Crimes therein mentioned.
Votes relating to the Newfoundland Trade.
'That an humble Address be presented to his Majesty, that a competent Number of Men of War and LandForces be sent as soon as conveniently may be to regain the lost Harbours in Newfoundland, to cruize on that Coast, to guard the Fishery, and annoy the Enemy trading to those Parts.'
Royal Assent given to several Acts.
A Minute, which was ordered not to be printed.
The 29th, the Committee appointed to make Enquiry into the Causes of the late Tumults, having made their Reports, a Motion was made, and the Question put, That Gabriel Glover, for speaking scandalous Words of this House and their Proceedings, be taken into the Custody of the Serjeant at Arms; it pass'd in the Negative.
The Printer of the Flying-Post order'd into Custody.
The next Business of Importance was to retrieve and maintain the public Credit; and to supply the Want of Money by the Currency of Exchequer-Bills, and to support the Bank of England: The Commons were so intent upon these wise Ends, that when in a Paper, entitled the Flying-Post, published on Thursday April the 1st, there was this Advertisement: We hear, that when the Exchequer-Notes are given out upon the Capitation-Fund, whosoever shall desire Specie on them, will have it at five Pound and a half per Cent. of the Society of Gentlemen that have subscribed to advance some hundred thousands of Pounds: They voted this Passage to be a malicious Insinuation, in order to destroy the Credit and Currency of the Exchequer-Bills. They ordered the Printer, John Salisbury, to be sent for in Custody: And gave leave to bring in a Bill, to prevent the Writing, Printing, or Publishing any News without Licence. And yet when such a Bill was presented by Mr. Pulteney, it was thrown out before a second Reading; because tho' they saw the Mischiefs of the Liberty of the Press, they knew not where to fix the Power of Restraint.
A Bill to restrain the Press rejected.
An Act for a farther Imposition on Coals, for finishing and adorning the Cathedral of St. Paul's, for preventing Abuses in Prisons and pretended privileged Places, and to restrain the Numbers and ill Practices of Brokers and Stock-Jobbers, put an end to the Business of this Session.
'Having given my Assent to the several Bills you have presented to me, I am now to return you my hearty Thanks for what you have done this Session; which has been carried on with great Prudence, Temper, and Affection.
'At the Opening of the Session, I told you how sensible I was of the Difficulties to be struggled with, which were of such a nature, that, I will freely own, the Hopes I had of our being able to overcome them, were founded only upon the Wisdom and Zeal of so good a Parliament.
'My Expectation has been fully answered; you entered upon the Business with so much Chearfulness, proceeded so unanimously, and have at last brought things to such a Conclusion, that we may hope to carry on the War with Success, in case our Enemies do not think it their Interest to agree to an honourable Peace: And so effectual a Provision being made for supplying the Deficiencies of former Funds, (which is the best Foundation for reestablishing of Credit) I doubt not but in a short time it will have a very happy Effect, to the universal Ease and Satisfaction of my People.
'The Circumstances of Affairs making it necessary for me to be out of the Kingdom for some time, I shall take care to leave the Administration of the Government, during my Absence, in the hands of such Persons as I can depend upon.