In spite of all the eloquence and influence of the ministry, the minority grew stronger and stronger as the debates proceeded. The question that leave should be given to bring in the bill had been carried by nearly three to one. On the question that the bill should be committed, the Ayes were a hundred and eighty-six, the Noes a hundred and twenty-eight. On the question that the bill should pass, the Ayes were a hundred and eighty-nine, the Noes a hundred and fifty-six.
On the twenty-sixth of November the bill was carried up to the Lords. Before it arrived, the Lords had made preparations to receive it. Every peer who was absent from town had been summoned up: every peer who disobeyed the summons and was unable to give a satisfactory explanation of his disobedience was taken into custody by Black Rod. On the day fixed for the first reading, the crowd on the benches was unprecedented. The whole number of temporal Lords, exclusive of minors, Roman Catholics and nonjurors, was about a hundred and forty. Of these a hundred and five were in their places. Many thought that the Bishops ought to have been permitted, if not required, to withdraw; for, by an ancient canon, those who ministered at the altars of God were forbidden to take any part in the infliction of capital punishment. On the trial of a peer impeached of high treason, the prelates always retire, and leave the culprit to be absolved or condemned by laymen. And surely, if it be unseemly that a divine should doom his fellow creatures to death as a judge, it must be still more unseemly that he should doom them to death as a legislator. In the latter case, as in the former, he contracts that stain of blood which the Church regards with horror; and it will scarcely be denied that there are some grave objections to the shedding of blood by Act of Attainder which do not apply to the shedding of blood in the ordinary course of justice. In fact, when the bill for taking away the life of Strafford was under consideration, all the spiritual peers withdrew. Now, however, the example of Cranmer, who had voted for some of the most infamous acts of attainder that ever passed, was thought more worthy of imitation; and there was a great muster of lawn sleeves. It was very properly resolved that, on this occasion, the privilege of voting by proxy should be suspended, that the House should be called over at the beginning and at the end of every sitting, and that every member who did not answer to his name should be taken into custody. [762]
Meanwhile the unquiet brain of Monmouth was teeming with strange designs. He had now reached a time of life at which youth could no longer be pleaded as an excuse for his faults; but he was more wayward and eccentric than ever. Both in his intellectual and in his moral character there was an abundance of those fine qualities which may be called luxuries, and a lamentable deficiency of those solid qualities which are of the first necessity. He had brilliant wit and ready invention without common sense, and chivalrous generosity and delicacy without common honesty. He was capable of rising to the part of the Black Prince; and yet he was capable of sinking to the part of Fuller. His political life was blemished by some most dishonourable actions; yet he was not under the influence of those motives to which most of the dishonourable actions of politicians are to be ascribed. He valued power little and money less. Of fear he was utterly insensible. If he sometimes stooped to be a villain,—for no milder word will come up to the truth,—it was merely to amuse himself and to astonish other people. In civil as in military affairs, he loved ambuscades, surprises, night attacks. He now imagined that he had a glorious opportunity of making a sensation, of producing a great commotion; and the temptation was irresistible to a spirit so restless as his.
He knew, or at least strongly suspected, that the stories which Fenwick had told on hearsay, and which King, Lords and Commons, Whigs and Tories, had agreed to treat as calumnies, were, in the main, true. Was it impossible to prove that they were true, to cross the wise policy of William, to bring disgrace at once on some of the most eminent men of both parties, to throw the whole political world into inextricable confusion?
Nothing could be done without the help of the prisoner; and with the prisoner it was impossible to communicate directly. It was necessary to employ the intervention of more than one female agent. The Duchess of Norfolk was a Mordaunt, and Monmouth's first cousin. Her gallantries were notorious; and her husband had, some years before, tried to induce his brother nobles to pass a bill for dissolving his marriage; but the attempt had been defeated, in consequence partly of the zeal with which Monmouth had fought the battle of his kinswoman. The lady, though separated from her lord, lived in a style suitable to her rank, and associated with many women of fashion, among others, with Lady Mary Fenwick, and with a relation of Lady Mary, named Elizabeth Lawson. By the instrumentality of the Duchess, Monmouth conveyed to the prisoner several papers containing suggestions framed with much art. Let Sir John,—such was the substance of these suggestions,—boldly affirm that his confession is true, that he has brought accusations, on hearsay indeed, but not on common hearsay, that he has derived his knowledge of the facts which he has asserted from the highest quarters; and let him point out a mode in which his veracity may be easily brought to the test. Let him pray that the Earls of Portland and Romney, who are well known to enjoy the royal confidence, may be called upon to declare whether they are not in possession of information agreeing with what he has related. Let him pray that the King may be requested to lay before Parliament the evidence which caused the sudden disgrace of Lord Marlborough, and any letters which may have been intercepted while passing between Saint Germains and Lord Godolphin. "Unless," said Monmouth to his female agents, "Sir John is under a fate, unless he is out of his mind, he will take my counsel. If he does, his life and honour are safe. If he does not, he is a dead man." Then this strange intriguer, with his usual license of speech, reviled William for what was in truth one of William's best titles to glory. "He is the worst of men. He has acted basely. He pretends not to believe these charges against Shrewsbury, Russell, Marlborough, Godolphin. And yet he knows,"—and Monmouth confirmed the assertion by a tremendous oath,—"he knows that every word of the charges is true."
The papers written by Monmouth were delivered by Lady Mary to her husband. If the advice which they contained had been followed, there can be little doubt that the object of the adviser would have been attained. The King would have been bitterly mortified; there would have been a general panic among public men of every party; even Marlborough's serene fortitude would have been severely tried; and Shrewsbury would probably have shot himself. But that Fenwick would have put himself in a better situation is by no means clear. Such was his own opinion. He saw that the step which he was urged to take was hazardous. He knew that he was urged to take that step, not because it was likely to save himself, but because it was certain to annoy others; and he was resolved not to be Monmouth's tool.
On the first of December the bill went through the earliest stage without a division. Then Fenwick's confession, which had, by the royal command, been laid on the table, was read; and then Marlborough stood up. "Nobody can wonder," he said, "that a man whose head is in danger should try to save himself by accusing others. I assure Your Lordships that, since the accession of his present Majesty, I have had no intercourse with Sir John on any subject whatever; and this I declare on my word of honour." [763] Marlborough's assertion may have been true; but it was perfectly compatible with the truth of all that Fenwick had said. Godolphin went further. "I certainly did," he said, "continue to the last in the service of King James and of his Queen. I was esteemed by them both. But I cannot think that a crime. It is possible that they and those who are about them may imagine that I am still attached to their interest. That I cannot help. But it is utterly false that I have had any such dealings with the Court of Saint Germains as are described in the paper which Your Lordships have heard read." [764]
Fenwick was then brought in, and asked whether he had any further confession to make. Several peers interrogated him, but to no purpose. Monmouth, who could not believe that the papers which he had sent to Newgate had produced no effect, put, in a friendly and encouraging manner, several questions intended to bring out answers which would have been by no means agreeable to the accused Lords. No such answer however was to be extracted from Fenwick. Monmouth saw that his ingenious machinations had failed. Enraged and disappointed, he suddenly turned round, and became more zealous for the bill than any other peer in the House. Every body noticed the rapid change in his temper and manner; but that change was at first imputed merely to his well known levity.
On the eighth of December the bill was again taken into consideration; and on that day Fenwick, accompanied by his counsel, was in attendance. But, before he was called in, a previous question was raised. Several distinguished Tories, particularly Nottingham, Rochester, Normanby and Leeds, said that, in their opinion, it was idle to inquire whether the prisoner was guilty or not guilty, unless the House was of opinion that he was a person so formidable that, if guilty, he ought to be attainted by Act of Parliament. They did not wish, they said, to hear any evidence. For, even on the supposition that the evidence left no doubt of his criminality, they should still think it better to leave him unpunished than to make a law for punishing him. The general sense, however, was decidedly for proceeding. [765] The prisoner and his counsel were allowed another week to prepare themselves; and, at length, on the fifteenth of December, the struggle commenced in earnest.
The debates were the longest and the hottest, the divisions were the largest, the protests were the most numerously signed that had ever been known in the whole history of the House of Peers. Repeatedly the benches continued to be filled from ten in the morning till past midnight. [766] The health of many lords suffered severely; for the winter was bitterly cold; but the majority was not disposed to be indulgent. One evening Devonshire was unwell; he stole away and went to bed; but Black Rod was soon sent to bring him back. Leeds, whose constitution was extremely infirm, complained loudly. "It is very well," he said, "for young gentlemen to sit down to their suppers and their wine at two o'clock in the morning; but some of us old men are likely to be of as much use here as they; and we shall soon be in our graves if we are forced to keep such hours at such a season." [767] So strongly was party spirit excited that this appeal was disregarded, and the House continued to sit fourteen or fifteen hours a day. The chief opponents of the bill were Rochester, Nottingham, Normanby and Leeds. The chief orators on the other side were Tankerville, who, in spite of the deep stains which a life singularly unfortunate had left on his public and private character, always spoke with an eloquence which riveted the attention of his hearers; Burnet, who made a great display of historical learning; Wharton, whose lively and familiar style of speaking, acquired in the House of Commons, sometimes shocked the formality of the Lords; and Monmouth, who had always carried the liberty of debate to the verge of licentiousness, and who now never opened his lips without inflicting a wound on the feelings of some adversary. A very few nobles of great weight, Devonshire, Dorset, Pembroke and Ormond, formed a third party. They were willing to use the Bill of Attainder as an instrument of torture for the purpose of wringing a full confession out of the prisoner. But they were determined not to give a final vote for sending him to the scaffold.