justification of his vote; which he did, to this effect:

was judged in parliament to be high treason; and she and her accomplices suffered accord"The nature of government required, that ingly. After that, there passed many attainthe legislature should be recurred to, in extra- ders in that reign, only upon depositions, that -ordinary cases, for which effectual provision were read in both houses of parliament. It is could not be made by fixed and standing laws. true, these were much blamed; and there was Our common law grew up out of the proceed-great cause for it: There were too many of ings of the courts of law: afterwards this, in them; for this extreme way of proceeding is cases of treason, was thought too loose; so the to be put in practice but seldom, and upon law, in this point, was limited, first, by the fa- great occasions; whereas many of these went mous statute in Edw. 3d's time; and then, by upon slight grounds, such as the suffering some the statute of Ed. 4th's time, the two witnesses passionate and indecent words, or the using were to be brought face to face with the person some embroidery in garments and coats of arms accused; and the law, lately made, had brought with an ill intent. But that, which was indeed the method of treason to a yet further certainty. execrable, was, that persons in prison were Yet, in that, as well as in the statute of Edw. attainted, without being heard in their de3, parliamentary proceedings were still except- fence. This was so contrary to natural justice, ed. And, indeed, though no such provision that it could not be enough condemned. had been expressly made in the acts themselves, In Edward 6's time, the lord Seymour was the nature of government puts always an ex- attainted in the same manner, only with this ception in favour of the legislative authority. difference, that the witnesses were brought to The legislature was, indeed, bound to observe the bar, and there examined; whereas formerly justice and equity, as much if not more, than they proceeded upon some depositions, that the inferior courts; because the supreme court were read to them. At the duke of Somerought to set an example to all others. But set's trial, which was both for high treason they might see cause to pass over forms, as and for felony, in which he was acquitted occasion should require. This was the more of the treason, but found guilty of the feloreasonable among us, because there was no na- uy, depositions were only read against him; tion in the world, besides England, that had but the witnesses were not brought face to not recourse to torture, when the evidence was face, as he pressed they might be. Upon probable, but defective. That was a mighty which it was, that the following parliament en⚫ restraint, and struck a terror into all people: acted, that the accusers (that is, the witnesses) and the freest government, both ancient and should be examined face to face, if they were modern, thought they could not subsist without alive. In Elizabeth's time, the parliament it. At present, the Venetians have their civil went out of the method of law, in all the steps jurisdictions, and the Grisons have their high of their proceedings against the queen of Scots. courts of justice, which act without the forms It is true, there were no parliamentary attainof law, by the absolute trust that is reposed inders in England during that long and glorious them; such as the Romans reposed in dictators, reign, upon which those, who opposed the bill, in the time of their liberty. England had nei- had insisted much; yet that was only, because ther torture, nor any unlimited magistrate in its there then was no occasion here in England for constitution; and therefore upon great emer- any such bill. But in Ireland, where some gencies, recourse must be bad to the supreme things were notoriously true, which yet could legislature. Forms are necessary in subordi- not be legally proved, that government was nate cases; but there is no reason to tie up the forced to have, on many different occasions, supreme one by them. This method of attain-recourse to this method. In James 1's time, der had been practised among us at all times. It is true, what was done in this way at one time, was often reversed at another; but that was the effect of the violence of the times, and was occasioned often by the injustice of those attainders. The attainders of inferior courts were, upon the like account, often reversed: But, when parliamentary attainders went upon good grounds, though without observing the forms of law, they were never blamed, not to say condemned. When poisoning was first practised in England, and put in a pot of porridge in the bishop of Rochester's house, this, which was only felony, was, by a special Jaw, made to be high treason; and a new punishment was appointed by act of parliament. The poisoner was boiled alive. When the nun of Kent pretended to visions, to oppose Henry 8's divorce, and his second marriage; and said, if he married again, he should not live long after it, but should die a villain's death; this

those, who were concerned in the Gunpowder Plot, and chose to be killed, rather than taken, were by act of parliament attainted after their death; which the courts of law could not do, since, by our law a man's crimes die with himself; for this reason, because he cannot make his own defence, nor can his children do it for him. The famous attainder of the earl of Strafford, in king Charles 1's time, has been much and justly censured, not so much because it passed by bill, as because of the injus tice of it. He was accused for having said, upon the house of commous refusing to grant the subsidies, which the king had asked, That the king was absolved from all the rules of government, and might make use of force to 'subdue this kingdom.' These words were proved only by one witness, all the rest of the council who were present, deposing, that they remembered no such words, and were positive, that the debate ran only upon the war with

Scotland so that though this kingdom,' | a court of law could not proceed upon it; yet singly taken, must be ineant of England, yet it no man could raise in himself a doubt concern. might well be meant of that kingdom,' which ing it. Antiently treason was judged as a fewas the subject then of the debate. Since then lony still is, upon such presumptions, as satisthe words were capable of that favourable fied the jury. The law has now limited this to sense, and that both he, who spoke them, and two witnesses brought face to face. But the they, who beard them, affirmed, that they were parliament may still take that liberty, which is meant and understood in that sense, it was a denied to inferior courts, of judging this matmost pernicious precedent, first to take them ter, as an ordinary jury does in a case of felony. in the most odious sense possible, and then to In the present case there was one witness viva destroy him, who said them, upon the testi- voce, upon whose testimony several persons had mony of one single exceptionable witness. been condemned, and had suffered; and these Whereas if, upon the commons refusing to grant neither at their trial, nor at their death, disthe king's demand, he had plainly advised the proved or denied any circumstance of his depoking to subdue his people by force, it is hard to sitions. If he had been too much a libertine tell, what the parliament might not justly have in the course of his life, that did not destroy done, or would not do again in the like case. his credit as a witness. In the first trial this In Charles 2's time some of the most eminent might have made him a doubtful witness; but of the regicides were attainted, after they were what had happened since had destroyed the dead; and in king James's time the duke of possibility even of suspecting his evidence. A Monmouth was attainted by bill. These last party had been in interest concerned to inquire attainders had their first beginning in the into his whole life, and in the present case had house of commons. Thus it appeared, that, full time for it; and every circumstance of his these last two hundred years, not to mention deposition had been examined; and yet nomuch antienter precedents, the nation had thing had been discovered, that could so much upon extraordinary occasions proceeded in this as create a doubt. All was still untouched, parliamentary way by bill. There were also sound, and true. The only circumstance, in many precedents of this method. And where- which the dying speeches of those, who suffered as it was said, that an ill parliament might on his evidence, seemed to contradict him, was carry these too far, it is certain, that the nation, concerning king James's commission; yet none and every person in it, must be safe, when of them denied really what Porter had deposthey are in their own hands, or in those of a re-ed, which was, that Charnock told him, that presentative chosen by themselves. As, on there was a commission come from king James the other hand, if that be ill chosen, there is for attacking the prince of Orange's guards. no help for it; the nation must perish, for it is They only denied, that there was a cominission by their own fault. They have already too for assassinating him. Sir John Friend and sir many precedents for this way of proceeding, if Wm. Perkins were condemned for the consulthey intend to make an ill use of them. But a tation now given in evidence against sir John precedent is only a ground or warrant for the Fenwick. They died not denying it. On the like proceeding upon the like occasion. Two contrary they justified all they had done. It rules were laid down for all bills of this nature; could not be supposed, that, if there had been first, that the matter be of a very extraordinary a tittle in the evidence that was false, they nature. Lesser crimes had better be passed should both have been so far wanting to themover than punished by the legislature. Of all selves and to their friends, who were to be tried the crimes, that can be contrived against the upon the same evidence, as not to have declarnation, certainly the most heinous one is, thated it in the solemnest manner. These things of bringing in a foreign force to conquer us. This ruins both us and our posterity for ever. Distractions at home, how fatal soever, even though they should end ever so tragically, as ours once did in the murder of the king and in a military usurpation, yet were capable of a crisis and a cure. In the year 1660, we came again to our wits, and all was set right again. Whereas there is no prospect, after a foreign conquest, but of slavery and misery. And, how black soever the assassinating a king must need appear, yet a foreign conquest is worse; it is assassinating the kingdom; and therefore the inviting and contriving that must be the blackest of crimes. But, as the importance of the matter ought to be equal to such an unusual way of proceeding, so the certainty of the facts ought to be such, that, if the defects in legal proof are to be supplied, yet this ought to be done upon such grounds, as make the fact charged appear so evidently true, that though VOL, XIII.

were more undeniably certain than the evidence of ten witnesses could possibly be. Witnesses might conspire to swear a falsehood; but, in this case, the circumstances took away the possibility of a doubt. And therefore the parliament, without taking any notice of Goodman's evidence, might well judge Fenwick guilty; for no man could doubt of it in his own mind. The antient Romans were very jealous of their liberty; but, how exact soever they might be in ordinary cases, yet, when any of their citizens seemed to have a design of making himself king, they either created a dictator, to suppress or destroy him, or else the people proceeded against him in a summary way. By the Porcian law, no citizen could be put to death for any crime whatsoever; yet such regard did the Romans pay to justice, even above law, that, when the Campanian legion had perfidiously broke in upon Rhegium, and pillaged it, they put them all to death for it. In

SC

ford, Weymouth, Longueville, Willoughby of
Eresby, Ferrers, Fitzwalter, Willoughby of
Brook, Chandos, Hunsdon, Brooke, Leigh,
Jermyn, Byron, Clifford, Granville, Arundel,
Dartmouth, Guilford, Godolphin, Jefferies,
Lemster, Pawlet. In all 60.

Protest thereon.-The Lords who were for

the negative entered the following Protest:
"Because bills of attainder against persons

the famous case of Catiline's conspiracy, as the evidence was clear, and the danger extreme, the accomplices in it were executed, notwithstanding the Porcian law. And this was dous by the order of the senate, without either hearing them make their own defence, or admitting them to claim the right, which the Valerian law gave them, of an appeal to the people, yet that whole proceeding was chiefly directed by the two greatest asserters of public liberty, that ever lived, Cato and Cicero. And Cæsar, who opposed it on pretence of its being against the Porcian law, was for that reason suspected of being in the confederacy. It appeared after-may tend to the subversion of the laws of this wards, how little regard he had, either to law kingdom.-Because the evidence of grand or liberty, though, upon this occasion, he had made use of the one to protect those, who were in a plot against the other.”

in prison, and who are therefore liable to be tried by law, are of dangerous consequence to the lives of the subject, and, as we conceive,

Jurymen, of what was sworn before them against sir J. F. as also the evidence of the petty jurymen, of what was sworn at the trial of other men, were admitted here; both which are

This last expression was much resented by against the rules of law; besides that they dis those, who were against the bill, as carrying a severe reflection upon them for opposing it;mation of Goodman in writing was received, agreed in their testimony.—Because the inforand indeed the bishop, though he only offered which is not by law to be admitted; and the what reasons occurred to him to justify his voting for the bill, fell under a great load of prisoner for want of his appearing face to face, eensure on this occasion. In conclusion, the as is required by law, could not have the advan bill passed by a small majority of seven voices tage of cross-examining him.—And it did not only, there being 66 for it, and 60 against it. appear by any evidence, that sir J. F., or any other person employed by him, had any way persuaded Goodman to withdraw himself; and that any person so accused should be condemnit would be of very dangerous consequence, ed; for by this means a witness, who shall be found insufficient to convict a man, shall than he could have if he were produced vita have more power to hurt him by his absence, voce against him.-And if Goodman had ap

A List of the Lords for and against the Bill. Bishops for the Bill.-Canterbury, Litchfield, Sarum, Chester, Ely, Oxon, Norwich, Peterborough, Gloucester, Bristol, Lincoln,

Chichester*.

Lords Temporal for the Bill.-Prince George, Norfolk, Southampton, Richmond, St. Albans, Bolton, Schomberg, Newcastle, Oxford, Derby, Suffolk, Bridgewater, Bolingbroke, Man-peared against him, yet he was so infamous in chester, Rivers, Stamford, Sunderland, Sandwich, Essex, Macclesfield, Radnor, Portland, Monmouth, Montague, Marlborough, ScarboTough, Warrington, Bradford, Romney, Tankerville, Abergavenny, Delawar, Berkley, Morley, Ewre, Wharton, Sidney, Lovelace, Howard, Raby, Vaughan, Ward, Culpeper, Lucas, Rockingham, Berkley, Cornwallis, Osborn, Ossulston, Cholmondley, Ashburnham, Weston, Herbert, Haversham. In all 66.

Bishops against the Bill.-London, Durham, Winton, Rochester, Exeter, St. David, Hereford, Bath and Wells.

Lords Temporal against the Bill.-Leeds, Pembroke, Somerset, Ormond, NorthumberJand, Devonshire, Halifax, Normanby, Lindsay, Dorset, Kent, Huntington, Northampton, Bristol, Winchelsea, Kingston, Carmarthen, Thanet, Scarsdale, Bath, Craven, Burlington, Feversham, Sussex, Berkley, Nottingham, Rochester, Abington, Carlisle, Torrington, Here.

*As to Bishops voting upon Bills of Attainder, see Leach's Hawk, and the books there cited: and 1 Christian's Blackstone, 401. See, too, lord Delamere's speech against the bishops voting in case of blood upon occasion of lord Danby's impeachment. See, also, Barrington's Observations on Magna Charta, and the stat. 27 Edw. 1.

for the most horrid blasphemy which was the whole course of his life, and particularly proved against him, that no evidence for him could or ought to have any credit, especially in the case of blood. So that in this case, there we conceive, a very doubtful one.-Lastly, was but one witness, viz. Porter; and he, as because sir J. F. is so inconsiderable a man, as to the endangering the peace of the govern ment, that there needs no necessity of proceed ing against him in this extraordinary manner. R. Bath and Wells, Craven, Carlisle, Notting. (Signed) Huntingdon, Thanet, N. Dunelm', Kent, R. Ferrers, Granville, Fitzwalter, Halli ham, H. London, Gil. Hereford, Willoughby, Hereford, Carnarvon, Jonat. Exon', Jeffreys, fax, Lindsey, P. Winton', Arundell, Lempster, Northumberland, Abington, Hunsdon, Chandos, Scarsdale, Normanby, Weymouth, Tho. Menev', Dartmouth, Sussex, Northampton, Bath, Tho. Roffen', Bristol, Leeds, Rochester, Leigh, Wil❜by de Broke."

The king gave the royal assent to this bill January the 11th, 1697.

The WRIT for Executing sir John Fenwick, being under the whole Broad Seal, and inclosed in it.

"Gulielmus tertius Dei Gratia, Anglie, Scotise, Franciæ, et Hiberniæ, Rex, Fidei Def.

* In the Harleian Misc. Oldys republished "Contemplations upon Life and Death," &c. as the composition of sir John Fenwick. Mr. "As for what I am now to die, I call God Park, 1 Harl. Misc. 542, ed. 1808, states that to witness, I went not to that meeting in Philip de Mornay lord of Plessis Marley, was Leadenhall street with any such intention as to the author of those Contemplations, which were invite king James by force to invade this na-printed in 1575, and translated from the French tion; nor was I myself provided with either horse or arms, or engaged for any number of men, or gave particular consent for any such invasion, as is most falsly sworn against me.

395. The Case, with the Proceedings against Major JOHN BERNARDI,* Mr. COUNTER, Mr. BLACKBURN, Mr. CASSELS, Mr. CHAMBERS, and Mr. MELDRUM, on Account of the Assassi nation-Plot: 8 WILLIAM III. A. D. 1696. [Written by Major John Bernardi, in Newgate, after he had been there near thirty-three Years a Prisoner, (though in the Historical Part abridged) without any Allowance from the Government, and who could never be admitted to Bail, or take his Trial.f]

John began to entertain thoughts of getting from under his father's discipline, who used him with great severity; sometimes confining him like a criminal in a little dark room for trifles, allowing him only bread and small beer; and whilst so confined, nobody durst relieve bim, or let him out. Thus this John Bernardi was unhappily destined to confinement in his youth by an unkind father, and in his old age to undergo the like rigid fate by unprece dented acts of parliament, without ever being heard, or proved criminal by any court in the kingdom.

MAJOR John Bernardi was the son of Francis Bernardi, descended of an ancient noble family, counts of the holy empire, &c. This Francis was sent to England by the serene republic of Genoa, with credentials from the duke and governors of that state, in the character of agent, and afterwards of that of resident, from 1651, until after the happy restoration of king Charles 2. We find, that on Tuesday, Sept. 16, 1651, on a Report from the Speaker, "It was resolved by the parliament to receive Francis Bernardi, agent from the commonwealth of Genoa, according to the rule for receiving agents." And on the 22d of June, Accordingly John Bernardi escaped from 1660, signior Francis Bernardi was appointed his father in the year 1670, leaving him asleep resident from the said commonwealth to Eng- in his bed; and going out of his gate, be land, to congratulate his majesty on his happy kneeled down on the ground, protesting and return to his kingdoms. But about two years praying, that he might never return whilst bis afterwards the republic sent over another per father lived. He began his journey towards son to succeed the said signior Francis Ber- Coventry, and, though pursued, had the good nardi; and as he was born in England, at the luck to escape, and got to sir Clement Fisher's time when his father count Philip de Bernardi seat at Packington, near that city, whose lady was here also in embassy, and loving the coun- was the heroic Mrs. Jane Lane, who protected try as the place of his nativity, he lived and and conducted king Charles 2, after the battle died in this kingdom, having spent near thirty of Worcester, (so often mentioned in the history thousand pounds in hospitality, and in indulging of those times) and who was very intimate with a particular taste in gardening, being the most young Bernardi's father: But sir Clement and famous gentleman in the kingdom of his time his lady were gone to London two days before, for fine gardens. He lived some time near whither young Bernardi followed them. On Windsor, when first out of his ministry; but re-hearing his case, they did not persuade him to moved afterwards into Worcestershire, to be more remote and unknown. Here his son

*Johnson, in his Life of Pope, has gratified his dislike of king William by mention of "the poor conspirator who died lately" [nearly half a century before the time when Johnson was writing]" in prison, after a confinement of more than 40 years without any crime proved against him." Bernardi has an article in the Biographia, and an account is given of him in the Gentleman's Magazine for the year 1780. ↑ "As many people are unacquainted with the reasons why those persons, suspected of being concerned in the assassination-plot, lay so long in Newgate, without being either bailed, tried, or discharged; this account, wrote by major Bernardi, (one of those taken up and contined) will explain the cause of it." Former Edition.

return; but recommended him by letter to captain Littleton Clent, a relation of her ladyship's, then in garrison at Portsmouth, and equipped him with necessaries and money for his journey. On his arrival at Portsmouth the captain received him very obligingly, and entered him in his own company, and taught him all the duty and exercise of a soldier. This life young Bernardi was very fond of, and passed through various posts (in Holland) in the army; for he had seven commissions in all, five of which were conferred on him by his highness the prince of Orange, the sixth by the States-General and the prince of Orange, and the seventh by king James 2, before the revolotion. He attained the rank of a captain at 27 years of age. At the siege of Maestricht he lost an eye, and was shot through one of his arms, the bones of which were dashed to splinters; after wrapping his arm in the fap