and began with great art and assiduity to prac- BOOK III. tise upon the witnesses who were to be produced 1690. against him. These were Porter and Goodman, both of them men very obvious to corruption. The first, being the most considerable person of the two, was offered the sum of 600 guineas to bear his charges to France, and an annuity of 3001. for life. Porter, instead of accepting these proposals, thought he consulted his interest better in divulging the. offers made by the prisoner, to the government. But Goodman, being also tampered with, proved more compliant; and when the time of the trial approached, it appeared that, one of the witnesses having absconded, no` legal conviction, as the law of treason now stood, could take place--all collateral evidence, however cogent or satisfactory in itself, being invalid and nugatory: and the prisoner had great reason to flatter himself that he was in a state of perfect safety. But the enemies of Fenwick were far too powerful to suffer him thus to reap the benefit of his own artifices. On the 6th of November 1696, admiral Russel acquainted the house of commons, "that his majesty had given leave to lay before them the several papers which had

occasions William sacrificed resentment to considerations of prudence and generosity." In this, as in almost every other instance, Mr. Macpherson's poisoned shaft misses its mark, and "hits the woundless air."

1696.

BOOK II. been given in by sir John Fenwick, in the nature of informations against himself, and several other persons of quality; and he desired that those papers might be read, that so he might have an opportunity of justifying himself, or, if he did not, that he might fall under the censure of the house." The papers being read, Fenwick was ordered to the bar of the house, and interrogated by the speaker as to his knowledge of the designs and practices of the enemies of government; being at the same time told, that to make a full and clear discovery was the best and only method he could take to deserve the favor of the house. To this he made a very weak and prevaricating reply declaring "that he had already, in the hope and prospect of pardon, discovered all he knew, and the answer constantly was, This is not satisfactory;'-so that," said the prisoner, "I am where I was. Now, when a man hath told all he knows, and this must still be the answer, it is very hard. I hope I shall not find this from this honorable house: I know this house is good security, if I had it; but till I have it I am under these circumstances, that I may at last be told, All is not satisfactory." In consequence of this indiscretion, he inflamed the anger of the house by his refusal, and the resentment of the executive government by his implied reproach-reducing himself, by his own statement

of things, to this unhappy dilemma: either he BOOK III. had, previous to this examination at the bar of 1696. the house, made a full and clear discovery as he pretended, in which case it was great presumption and absurdity to stipulate for a pardon, when he had nothing fresh to communicate-or, if he had not already made a full discovery, he stood self-convicted of the grossest falsehood and dissimulation, with regard to the court, which would then be entirely exculpated as to any expressions of dissatisfaction or resentment.

Bill of At

A motion was forthwith made, and carried by Fenwick's a great majority, to bring in a bill to attaint sir tainder. John Fenwick of high treason; and counsel was assigned him by order of the house. But the bill in all its stages, and in its progress throughout both houses, had to encounter a most unexpected opposition, invigorated by all the animation and eloquence which the rage of faction could inspire. The tories and concealed Jacobites in the house felt that they stood upon high and popular ground; and they improved their advantage with great art and ability. The question resolved itself into two parts: 1st, Whether any deviation from the established and legal mode of proceeding, and the assumption of so extraordinary a power as that of passing bills of attainder on evidence not admissible in the inferior courts, was in any case justifiable? And, 2dly, Whether, if

BOOK III. such an arbitrary exertion of authority was ever 1696. to be vindicated, the case of sir John Fenwick

Arguments

for and

was of so great magnitude as to justify the exercise of it?

The advocates for the bill alleged, that the oragainst it. dinary and established laws of the land were intended and calculated for ordinary cases; but that there never existed a government where there was not a resort to extraordinary power when the nature of the case required it. The reason why any man deserves to be punished, is because he is criminal, let his crime be made evident in any way whatsoever-whatever makes the truth evident, is and must be held fair and reasonable evidence. Can any innocent man think himself in danger, when he is judged by the representatives of the nation, and the peerage of the realm? If the bill in question established a precedent for punishing a man whose guilt was doubted of, it would indeed be a very ill and dangerous precedent. But, on the contrary, it is in fact a precedent for punishing a man notoriously criminal, who had eluded the justice and dared the resentment of his country. For such a case provision could not be made by fixed and standing laws. The legislature was indeed bound to observe jus- / tice and equity as much, if not more than the inferior courts; because the supreme court ought to set an example to all others: but they might

7

1696.

see cause to pass over forms as occasion should BOOK III. require. The constitution of England admitted neither state inquisitions, nor tortures, nor any magistrate vested, like the dictator of the Romans, with unlimited power; and therefore, upon great emergencies, recourse must be had to the supreme legislature. The method of attainders had been practised at all times; and when parlia mentary attainders went upon good grounds, they had never been thought to merit censure. Bills of attainder passed in times of violence had indeed been reversed, and so likewise had judgments of the inferior courts. The possible abuse of power is no argument against its just and reasonable exercise. The nation and every person in it must be safe in the hands of a parliament elected by themselves; or, if they are not safe, there is no help for it-the nation must perish, for it is by their own fault. The ancient Romans carried their idea of liberty so high, that by the Portian law no citizen could be put to death for any crime whatsoever. Yet in the famous case of Catiline's conspiracy, as the evidence was clear, and the danger extreme, the accomplices in it were executed, notwithstanding the Portian law. And this was done by order of the senate, without either hearing them make their own defence, or admitting them to claim the right which the