The History of England, from the Accession of James the Second - Volume 4, Thomas Babington Macaulay [early readers .txt] 📗

time to prepare himself. He was told, as he had been told a few days before in the royal closet, that, prepared or unprepared, he could not but remember the principal plots in which he had been engaged, and the names of his chief accomplices. If he would honestly relate what it was quite impossible that he could have forgotten, the House would make all fair allowances, and would grant him time to recollect subordinate details. Thrice he was removed from the bar; and thrice he was brought back. He was solemnly informed that the opportunity then given him of earning the favour of the Commons would probably be the last. He persisted in his refusal, and was sent back to Newgate.

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

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

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

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

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

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

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

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

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

All these propositions the Whigs seem to have fully established. They had also a decided advantage in the dispute about the rule which requires two witnesses in cases of high treason. The truth is that the rule is absurd. It is impossible to understand why the evidence which would be sufficient to prove that a