The History of England, from the Accession of James II — Volume 4

The first division was on the question whether secondary evidence of what Goodman could have proved should be admitted. On this occasion Burnet closed the debate by a powerful speech which none of the Tory orators could undertake to answer without premeditation. A hundred and twenty-six lords were present, a number unprecedented in our history. There were seventy-three Contents, and fifty-three Not Contents. Thirty-six of the minority protested against the decision of the House. 768

The next great trial of strength was on the question whether the bill should be read a second time. The debate was diversified by a curious episode. Monmouth, in a vehement declamation, threw some severe and well merited reflections on the memory of the late Lord Jeffreys. The title and part of the ill gotten wealth of Jeffreys had descended to his son, a dissolute lad, who had lately come of age, and who was then sitting in the House. The young man fired at hearing his father reviled. The House was forced to interfere, and to make both the disputants promise that the matter should go no further. On this day a hundred and twenty-eight peers were present. The second reading was carried by seventy-three to fifty-five; and forty-nine of the fifty-five protested. 769

It was now thought by many that Fenwick's courage would give way. It was known that he was very unwilling to die. Hitherto he might have flattered himself with hopes that the bill would miscarry. But now that it had passed one House, and seemed certain to pass the other, it was probable that he would save himself by disclosing all that he knew. He was again put to the bar and interrogated. He refused to answer, on the ground that his answers might be used against him by the Crown at the Old Bailey. He was assured that the House would protect him; but he pretended that this assurance was not sufficient; the House was not always sitting; he might be brought to trial during a recess, and hanged before their Lordships met again. The royal word alone, he said, would be a complete guarantee. The Peers ordered him to be removed, and immediately resolved that Wharton should go to Kensington, and should entreat His Majesty to give the pledge which the prisoner required. Wharton hastened to Kensington, and hastened back with a gracious answer. Fenwick was again placed at the bar. The royal word, he was told, had been passed that nothing which he might say there should be used against him in any other place. Still he made difficulties. He might confess all that he knew, and yet might be told that he was still keeping something back. In short, he would say nothing till he had a pardon. He was then, for the last time, solemnly cautioned from the Woolsack. He was assured that, if he would deal ingenuously with the Lords, they would be intercessors for him at the foot of the throne, and that their intercession would not be unsuccessful. If he continued obstinate, they would proceed with the bill. A short interval was allowed him for consideration; and he was then required to give his final answer. "I have given it," he said; "I have no security. If I had, I should be glad to satisfy the House." He was then carried back to his cell; and the Peers separated, having sate far into the night. 770

At noon they met again. The third reading was moved. Tenison spoke for the bill with more ability than was expected from him, and Monmouth with as much sharpness as in the previous debates. But Devonshire declared that he could go no further. He had hoped that fear would induce Fenwick to make a frank confession; that hope was at an end; the question now was simply whether this man should be put to death by an Act of Parliament; and to that question Devonshire said that he must answer, "Not Content." It is not easy to understand on what principle he can have thought himself justified in threatening to do what he did not think himself justified in doing. He was, however, followed by Dorset, Ormond, Pembroke, and two or three others. Devonshire, in the name of his little party, and Rochester, in the name of the Tories, offered to waive all objections to the mode of proceeding, if the penalty were reduced from death to perpetual imprisonment. But the majority, though weakened by the defection of some considerable men, was still a majority, and would hear of no terms of compromise. The third reading was carried by only sixty-eight votes to sixty-one. Fifty-three Lords recorded their dissent; and forty-one subscribed a protest, in which the arguments against the bill were ably summed up. 771 The peers whom Fenwick had accused took different sides. Marlborough steadily voted with the majority, and induced Prince George to do the same. Godolphin as steadily voted with the minority, but, with characteristic wariness, abstained from giving any reasons for his votes. No part of his life warrants us in ascribing his conduct to any exalted motive. It is probable that, having been driven from office by the Whigs and forced to take refuge among the Tories, he thought it advisable to go with his party. 772

As soon as the bill had been read a third time, the attention of the Peers was called to a matter which deeply concerned the honour of their order. Lady Mary Fenwick had been, not unnaturally, moved to the highest resentment by the conduct of Monmouth. He had, after professing a great desire to save her husband, suddenly turned round, and become the most merciless of her husband's persecutors; and all this solely because the unfortunate prisoner would not suffer himself to be used as an instrument for the accomplishing of a wild scheme of mischief. She might be excused for thinking that revenge would be sweet. In her rage she showed to her kinsman the Earl of Carlisle the papers which she had received from the Duchess of Norfolk. Carlisle brought the subject before the Lords. The papers were produced. Lady Mary declared that she had received them from the Duchess. The Duchess declared that she had received them from Monmouth. Elizabeth Lawson confirmed the evidence of her two friends. All the bitter things which the petulant Earl had said about William were repeated. The rage of both the great factions broke forth with ungovernable violence. The Whigs were exasperated by discovering that Monmouth had been secretly labouring to bring to shame and ruin two eminent men with whose reputation the reputation of the whole party was bound up. The Tories accused him of dealing treacherously and cruelly by the prisoner and the prisoner's wife. Both among the Whigs and among the Tories Monmouth had, by his sneers and invectives, made numerous personal enemies, whom fear of his wit and of his sword had hitherto kept in awe. 773 All these enemies were now openmouthed against him. There was great curiosity to know what he would be able to say in his defence. His eloquence, the correspondent of the States General wrote, had often annoyed others. He would now want it all to protect himself. 774 That eloquence indeed was of a kind much better suited to attack than to defence. Monmouth spoke near three hours in a confused and rambling manner, boasted extravagantly of his services and sacrifices, told the House that he had borne a great part in the Revolution, that he had made four voyages to Holland in the evil times, that he had since refused great places, that he had always held lucre in contempt. "I," he said, turning significantly to Nottingham, "have bought no great estate; I have built no palace; I am twenty thousand pounds poorer than when I entered public life. My old hereditary mansion is ready to fall about my ears. Who that remembers what I have done and suffered for His Majesty will believe that I would speak disrespectfully of him?" He solemnly declared,—and this was the most serious of the many serious faults of his long and unquiet life,—that he had nothing to do with the papers which had caused so much scandal. The Papists, he said, hated him; they had laid a scheme to ruin him; his ungrateful kinswoman had consented to be their implement, and had requited the strenuous efforts which he had made in defence of her honour by trying to blast his. When he concluded there was a long silence. He asked whether their Lordships wished him to withdraw. Then Leeds, to whom he had once professed a strong attachment, but whom he had deserted with characteristic inconstancy and assailed with characteristic petulance, seized the opportunity of revenging himself. "It is quite unnecessary," the shrewd old statesman said, "that the noble Earl should withdraw at present. The question which we have now to decide is merely whether these papers do or do not deserve our censure. Who wrote them is a question which may be considered hereafter." It was then moved and unanimously resolved that the papers were scandalous, and that the author had been guilty of a high crime and misdemeanour. Monmouth himself was, by these dexterous tactics, forced to join in condemning his own compositions. 775 Then the House proceeded to consider the charge against him. The character of his cousin the Duchess did not stand high; but her testimony was confirmed both by direct and by circumstantial evidence. Her husband said, with sour pleasantry, that he gave entire faith to what she had deposed. "My Lord Monmouth thought her good enough to be wife to me; and, if she is good enough to be wife to me, I am sure that she is good enough to be a witness against him." In a House of near eighty peers only eight or ten seemed inclined to show any favour to Monmouth. He was pronounced guilty of the act of which he had, in the most solemn manner, protested that he was innocent; he was sent to the Tower; he was turned out of all his places; and his name was struck out of the Council Book. 776 It might well have been thought that the ruin of his fame and of his fortunes was irreparable. But there was about his nature an elasticity which nothing could subdue. In his prison, indeed, he was as violent as a falcon just caged, and would, if he had been long detained, have died of mere impatience. His only solace was to contrive wild and romantic schemes for extricating himself from his difficulties and avenging himself on his enemies. When he regained his liberty, he stood alone in the world, a dishonoured man, more hated by the Whigs than any Tory, and by the Tories than any Whig, and reduced to such poverty that he talked of retiring to the country, living like a farmer, and putting his Countess into the dairy to churn and to make cheeses. Yet even after this fall, that mounting spirit rose again, and rose higher than ever. When he next appeared before the world, he had inherited the earldom of the head of his family; he had ceased to be called by the tarnished name of Monmouth; and he soon added new lustre to the name of Peterborough. He was still all air and fire. His ready wit and his dauntless courage made him formidable; some amiable qualities which contrasted strangely with his vices, and some great exploits of which the effect was heightened by the careless levity with which they were performed, made him popular; and his countrymen were willing to forget that a hero of whose achievements they were proud, and who was not more distinguished by parts and valour than by courtesy and generosity, had stooped to tricks worthy of the pillory.

It is interesting and instructive to compare the fate of Shrewsbury with the fate of Peterborough. The honour of Shrewsbury was safe. He had been triumphantly acquitted of the charges contained in Fenwick's confession. He was soon afterwards still more triumphantly acquitted of a still more odious charge. A wretched spy named Matthew Smith, who thought that he had not been sufficiently rewarded, and was bent on being revenged, affirmed that Shrewsbury had received early information of the Assassination Plot, but had suppressed that information, and had taken no measures to prevent the conspirators from accomplishing their design. That this was a foul calumny no person who has examined the evidence can doubt. The King declared that he could himself prove his minister's innocence; and the Peers, after examining Smith, pronounced the accusation unfounded. Shrewsbury was cleared as far as it was in the power of the Crown and of the Parliament to clear him. He had power and wealth, the favour of the King and the favour of the people. No man had a greater number of devoted friends. He was the idol of the Whigs; yet he was not personally disliked by the Tories. It should seem that his situation was one which Peterborough might well have envied. But happiness and misery are from within. Peterborough had one of those minds of which the deepest wounds heal and leave no scar. Shrewsbury had one of those minds in which the slightest scratch may fester to the death. He had been publicly accused of corresponding with Saint Germains; and, though King, Lords and Commons had pronounced him innocent, his conscience told him that he was guilty. The praises which he knew that he had not deserved sounded to him like reproaches. He never regained his lost peace of mind. He left office; but one cruel recollection accompanied him into retirement. He left England; but one cruel recollection pursued him over the Alps and the Apennines. On a memorable day, indeed, big with the fate of his country, he again, after many inactive and inglorious years, stood forth the Shrewsbury of 1688. Scarcely any thing in history is more melancholy than that late and solitary gleam, lighting up the close of a life which had dawned so splendidly, and which had so early become hopelessly troubled and gloomy.

On the day on which the Lords passed the Bill of Attainder, they adjourned over the Christmas holidays. The fate of Fenwick consequently remained during more than a fortnight in suspense. In the interval plans of escape were formed; and it was thought necessary to place a strong military guard round Newgate. 777 Some Jacobites knew William so little as to send him anonymous letters, threatening that he should be shot or stabbed if he dared to touch a hair of the prisoner's head. 778 On the morning of the eleventh of January he passed the bill. He at the same time passed a bill which authorised the government to detain Bernardi and some other conspirators in custody during twelve months. On the evening of that day a deeply mournful event was the talk of all London. The Countess of Aylesbury had watched with intense anxiety the proceedings against Sir John. Her lord had been as deep as Sir John in treason, was, like Sir John, in confinement, and had, like Sir John, been a party to Goodman's flight. She had learned with dismay that there was a method by which a criminal who was beyond the reach of the ordinary law might be punished. Her terror had increased at every stage in the progress of the Bill of Attainder. On the day on which the royal assent was to be given, her agitation became greater than her frame could support. When she heard the sound of the guns which announced that the King was on his way to Westminster, she fell into fits, and died in a few hours. 779

Even after the bill had become law, strenuous efforts were made to save Fenwick. His wife threw herself at William's feet, and offered him a petition. He took the petition, and said, very gently, that it should be considered, but that the matter was one of public concern, and that he must deliberate with his ministers before he decided. 780 She then addressed herself to the Lords. She told them that her husband had not expected his doom, that he had not had time to prepare himself for death, that he had not, during his long imprisonment, seen a divine. They were easily induced to request that he might be respited for a week. A respite was granted; but, forty-eight hours before it expired, Lady Mary presented to the Lords another petition, imploring them to intercede with the King that her husband's punishment might be commuted to banishment. The House was taken by surprise; and a motion to adjourn was with difficulty carried by two votes. 781 On the morrow, the last day of Fenwick's life, a similar petition was presented to the Commons. But the Whig leaders were on their guard; the attendance was full; and a motion for reading the Orders of the Day was carried by a hundred and fifty-two to a hundred and seven. 782 In truth, neither branch of the legislature could, without condemning itself, request William to spare Fenwick's life. Jurymen, who have, in the discharge of a painful duty, pronounced a culprit guilty, may, with perfect consistency, recommend him to the favourable consideration of the Crown. But the Houses ought not to have passed the Bill of Attainder unless they were convinced, not merely that Sir John had committed high treason, but also that he could not, without serious danger to the Commonwealth, be suffered to live. He could not be at once a proper object of such a bill and a proper object of the royal mercy.

On the twenty-eighth of January the execution took place. In compliment to the noble families with which Fenwick was connected, orders were given that the ceremonial should be in all respects the same as when a peer of the realm suffers death. A scaffold was erected on Tower Hill and hung with black. The prisoner was brought from Newgate in the coach of his kinsman the Earl of Carlisle, which was surrounded by a troop of the Life Guards. Though the day was cold and stormy, the crowd of spectators was immense; but there was no disturbance, and no sign that the multitude sympathized with the criminal. He behaved with a firmness which had not been expected from him. He ascended the scaffold with steady steps, and bowed courteously to the persons who were assembled on it, but spoke to none, except White, the deprived Bishop of Peterborough. White prayed with him during about half an hour. In the prayer the King was commended to the Divine protection; but no name which could give offence was pronounced. Fenwick then delivered a sealed paper to the Sheriffs, took leave of the Bishop, knelt down, laid his neck on the block, and exclaimed, "Lord Jesus, receive my soul." His head was severed from his body at a single blow. His remains were placed in a rich coffin, and buried that night, by torchlight, under the pavement of Saint Martin's Church. No person has, since that day, suffered death in England by Act of Attainder. 783

Meanwhile an important question, about which public feeling was much excited, had been under discussion. As soon as the Parliament met, a Bill for Regulating Elections, differing little in substance from the bill which the King had refused to pass in the preceding session, was brought into the House of Commons, was eagerly welcomed by the country gentlemen, and was pushed through every stage. On the report it was moved that five thousand pounds in personal estate should be a sufficient qualification for the representative of a city or borough. But this amendment was rejected. On the third reading a rider was added, which permitted a merchant possessed of five thousand pounds to represent the town in which he resided; but it was provided that no person should be considered as a merchant because he was a proprietor of Bank Stock or East India Stock. The fight was hard. Cowper distinguished himself among the opponents of the bill. His sarcastic remarks on the hunting, hawking boors, who wished to keep in their own hands the whole business of legislation, called forth some sharp rustic retorts. A plain squire, he was told, was as likely to serve the country well as the most fluent gownsman, who was ready, for a guinea, to prove that black was white. On the question whether the bill should pass, the Ayes were two hundred, the Noes a hundred and sixty. 784

The Lords had, twelve months before, readily agreed to a similar bill; but they had since reconsidered the subject and changed their opinion. The truth is that, if a law requiring every member of the House of Commons to possess an estate of some hundreds of pounds a year in land could have been strictly enforced, such a law would have been very advantageous to country gentlemen of moderate property, but would have been by no means advantageous to the grandees of the realm. A lord of a small manor would have stood for the town in the neighbourhood of which his family had resided during centuries, without any apprehension that he should be opposed by some alderman of London, whom the electors had never seen before the day of nomination, and whose chief title to their favour was a pocketbook full of bank notes. But a great nobleman, who had an estate of fifteen or twenty thousand pounds a year, and who commanded two or three boroughs, would no longer be able to put his younger son, his younger brother, his man of business, into Parliament, or to earn a garter or a step in the peerage by finding a seat for a Lord of the Treasury or an Attorney General. On this occasion therefore the interest of the chiefs of the aristocracy, Norfolk and Somerset, Newcastle and Bedford, Pembroke and Dorset, coincided with that of the wealthy traders of the City and of the clever young aspirants of the Temple, and was diametrically opposed to the interest of a squire of a thousand or twelve hundred a year. On the day fixed for the second reading the attendance of lords was great. Several petitions from constituent bodies, which thought it hard that a new restriction should be imposed on the exercise of the elective franchise, were presented and read. After a debate of some hours the bill was rejected by sixty-two votes to thirty-seven. 785 Only three days later, a strong party in the Commons, burning with resentment, proposed to tack the bill which the Peers had just rejected to the Land Tax Bill. This motion would probably have been carried, had not Foley gone somewhat beyond the duties of his place, and, under pretence of speaking to order, shown that such a tack would be without a precedent in parliamentary history. When the question was put, the Ayes raised so loud a cry that it was believed that they were the majority; but on a division they proved to be only a hundred and thirty-five. The Noes were a hundred and sixty-three. 786

Other parliamentary proceedings of this session deserve mention. While the Commons were busily engaged in the great work of restoring the finances, an incident took place which seemed, during a short time, likely to be fatal to the infant liberty of the press, but which eventually proved the means of confirming that liberty. Among the many newspapers which had been established since the expiration of the censorship, was one called the Flying Post. The editor, John Salisbury, was the tool of a band of stockjobbers in the City, whose interest it happened to be to cry down the public securities. He one day published a false and malicious paragraph, evidently intended to throw suspicion on the Exchequer Bills. On the credit of the Exchequer Bills depended, at that moment, the political greatness and the commercial prosperity of the realm. The House of Commons was in a flame. The Speaker issued his warrant against Salisbury. It was resolved without a division that a bill should be brought in to prohibit the publishing of news without a license. Forty-eight hours later the bill was presented and read. But the members had now had time to cool. There was scarcely one of them whose residence in the country had not, during the preceding summer, been made more agreeable by the London journals. Meagre as those journals may seem to a person who has the Times daily on his breakfast table, they were to that generation a new and abundant source of pleasure. No Devonshire or Yorkshire gentleman, Whig or Tory, could bear the thought of being again dependent, during seven months of every year, for all information about what was doing in the world, on newsletters. If the bill passed, the sheets, which were now so impatiently expected twice a week at every country seat in the kingdom, would contain nothing but what it suited the Secretary of State to make public; they would be, in fact, so many London Gazettes; and the most assiduous reader of the London Gazette might be utterly ignorant of the most important events of his time. A few voices, however, were raised in favour of a censorship. "These papers," it was said, "frequently contain mischievous matter." "Then why are they not prosecuted?" was the answer. "Has the Attorney-General filed an information against any one of them? And is it not absurd to ask us to give a new remedy by statute, when the old remedy afforded by the common law has never been tried?" On the question whether the bill should be read a second time, the Ayes were only sixteen, the Noes two hundred. 787