This event exasperated the Whigs beyond measure. No jury could now find Fenwick guilty of high treason. Was he then to escape? Was a long series of offences against the State to go unpunished merely because to those offences had now been added the offence of bribing a witness to suppress his evidence and to desert his bail? Was there no extraordinary method by which justice might strike a criminal who, solely because he was worse than other criminals, was beyond the reach of the ordinary law? Such a method there was, a method authorised by numerous precedents, a method used both by Papists and by Protestants during the troubles of the sixteenth century, a method used both by Roundheads and by Cavaliers during the troubles of the seventeenth century, a method which scarcely any leader of the Tory party could condemn without condemning himself, a method of which Fenwick could not decently complain, since he had, a few years before, been eager to employ it against the unfortunate Monmouth. To that method the party which was now supreme in the State determined to have recourse.
Soon after the Commons had met, on the morning of the sixth of November, Russell rose in his place and requested to be heard. The task which he had undertaken required courage not of the most respectable kind; but to him no kind of courage was wanting. Sir John Fenwick, he said, had sent to the King a paper in which grave accusations were brought against some of His Majesty's servants; and His Majesty had, at the request of his accused servants, graciously given orders that this paper should be laid before the House. The confession was produced and read. The Admiral then, with spirit and dignity worthy of a better man, demanded justice for himself and Shrewsbury. "If we are innocent, clear us. If we are guilty, punish us as we deserve. I put myself on you as on my country, and am ready to stand or fall by your verdict."
It was immediately ordered that Fenwick should be brought to the bar with all speed. Cutts, who sate in the House as member for Cambridgeshire, was directed to provide a sufficient escort, and was especially enjoined to take care that the prisoner should have no opportunity of making or receiving any communication, oral or written, on the road from Newgate to Westminster. The House then adjourned till the afternoon.
At five o'clock, then a late hour, the mace was again put on the table; candles were lighted; and the House and lobby were carefully cleared of strangers. Fenwick was in attendance under a strong guard. He was called in, and exhorted from the chair to make a full and ingenuous confession. He hesitated and evaded. "I cannot say any thing without the King's permission. His Majesty may be displeased if what ought to be known only to him should be divulged to others." He was told that his apprehensions were groundless. The King well knew that it was the right and the duty of his faithful Commons to inquire into whatever concerned the safety of his person and of his government. "I may be tried in a few days," said the prisoner. "I ought not to be asked to say any thing which may rise up in judgment against me." "You have nothing to fear," replied the Speaker, "if you will only make a full and free discovery. No man ever had reason to repent of having dealt candidly with the Commons of England." Then Fenwick begged for delay. He was not a ready orator; his memory was bad; he must have time to prepare himself. He was told, as he had been told a few days before in the royal closet, that, prepared or unprepared, he could not but remember the principal plots in which he had been engaged, and the names of his chief accomplices. If he would honestly relate what it was quite impossible that he could have forgotten, the House would make all fair allowances, and would grant him time to recollect subordinate details. Thrice he was removed from the bar; and thrice he was brought back. He was solemnly informed that the opportunity then given him of earning the favour of the Commons would probably be the last. He persisted in his refusal, and was sent back to Newgate.
It was then moved that his confession was false and scandalous. Coningsby proposed to add that it was a contrivance to create jealousies between the King and good subjects for the purpose of screening real traitors. A few implacable and unmanageable Whigs, whose hatred of Godolphin had not been mitigated by his resignation, hinted their doubts whether the whole paper ought to be condemned. But after a debate in which Montague particularly distinguished himself the motion was carried. One or two voices cried "No;" but nobody ventured to demand a division.
Thus far all had gone smoothly; but in a few minutes the storm broke forth. The terrible words, Bill of Attainder, were pronounced; and all the fiercest passions of both the great factions were instantly roused. The Tories had been taken by surprise, and many of them had left the house. Those who remained were loud in declaring that they never would consent to such a violation of the first principles of justice. The spirit of the Whigs was not less ardent, and their ranks were unbroken. The motion for leave to bring in a bill attainting Sir John Fenwick was carried very late at night by one hundred and seventy-nine votes to sixty-one; but it was plain that the struggle would be long and hard. [756]
In truth party spirit had seldom been more strongly excited. On both sides there was doubtless much honest zeal; and on both sides an observant eye might have detected fear, hatred, and cupidity disguised under specious pretences of justice and public good. The baleful heat of faction rapidly warmed into life poisonous creeping things which had long been lying torpid, discarded spies and convicted false witnesses, the leavings of the scourge, the branding iron and the shears. Even Fuller hoped that he might again find dupes to listen to him. The world had forgotten him since his pillorying. He now had the effrontery to write to the Speaker, begging to be heard at the bar and promising much important information about Fenwick and others. On the ninth of November the Speaker informed the House that he had received this communication; but the House very properly refused even to suffer the letter of so notorious a villain to be read.
On the same day the Bill of Attainder, having been prepared by the Attorney and Solicitor General, was brought in and read a first time. The House was full and the debate sharp. John Manley, member for Bossiney, one of those stanch Tories who, in the preceding session, had long refused to sign the Association, accused the majority, in no measured terms, of fawning on the Court and betraying the liberties of the people. His words were taken down; and, though he tried to explain them away, he was sent to the Tower. Seymour spoke strongly against the bill, and quoted the speech which Caesar made in the Roman Senate against the motion that the accomplices of Catiline should be put to death in an irregular manner. A Whig orator keenly remarked that the worthy Baron had forgotten that Caesar was grievously suspected of having been himself concerned in Catiline's plot. [757] In this stage a hundred and ninety-six members voted for the bill, a hundred and four against it. A copy was sent to Fenwick, in order that he might be prepared to defend himself. He begged to be heard by counsel; his request was granted; and the thirteenth was fixed for the hearing.
Never within the memory of the oldest member had there been such a stir round the House as on the morning of the thirteenth. The approaches were with some difficulty cleared; and no strangers, except peers, were suffered to come within the doors. Of peers the throng was so great that their presence had a perceptible influence on the debate. Even Seymour, who, having formerly been Speaker, ought to have been peculiarly mindful of the dignity of the Commons, so strangely forgot himself as once to say "My Lords." Fenwick, having been formally given up by the Sheriffs of London to the Serjeant at Arms, was put to the bar, attended by two barristers who were generally employed by Jacobite culprits, Sir Thomas Powis and Sir Bartholomew Shower. Counsel appointed by the House appeared in support of the bill.
The examination of the witnesses and the arguments of the advocates occupied three days. Porter was called in and interrogated. It was established, not indeed by legal proof, but by such moral proof as determines the conduct of men in the affairs of common life, that Goodman's absence was to be attributed to a scheme planned and executed by Fenwick's friends with Fenwick's privity. Secondary evidence of what Goodman, if he had been present, would have been able to prove, was, after a warm debate, admitted. His confession, made on oath and subscribed by his hand, was put in. Some of the grand jurymen who had found the bill against Sir John gave an account of what Goodman had sworn before them; and their testimony was confirmed by some of the petty jurymen who had convicted another conspirator. No evidence was produced in behalf of the prisoner. After counsel for him and against him had been heard, he was sent back to his cell. [758] Then the real struggle began. It was long and violent. The House repeatedly sate from daybreak till near midnight. Once the Speaker was in the chair fifteen hours without intermission. Strangers were freely admitted; for it was felt that, since the House chose to take on itself the functions of a court of justice, it ought, like a court of justice, to sit with open doors. [759] The substance of the debates has consequently been preserved in a report, meagre, indeed, when compared with the reports of our time, but for that age unusually full. Every man of note in the House took part in the discussion. The bill was opposed by Finch with that fluent and sonorous rhetoric which had gained him the name of Silvertongue, and by Howe with all the sharpness both of his wit and of his temper, by Seymour with characteristic energy, and by Harley with characteristic solemnity. On the other side Montague displayed the powers of a consummate debater, and was zealously supported by Littleton. Conspicuous in the front ranks of the hostile parties were two distinguished lawyers, Simon Harcourt and William Cowper.