but on the contrary, to give him all succour and assistance that shall be necessary. presents to be of no force after one year, from the day of the date hereof. nearest admiralty where he shall be equipped, and leave there a roll signed and certified by him, containing the names and sirnames, the births and residence of his crew; and make his return to the said place, or some other port of France, and make his report before the officers of the Admiralty, and no others, of what shall have happened during his voyage, and give us advice thereof, and send his said report to the secretary-general of the marine, with the papers justifying the same, that we may give such orders thereupon as may be necessary. "And we pray and require all kings, princes, potentates, sovereigns, estates, republics, friends and allies of this crown, and all others to whom it shall appertain, to give to the said Vaughan all favour, aid, assistance and succour in their ports, with his said vessel, company and prizes, which he shall take during his voyage, without doing, or suffering to be done to him any trouble or hindrance; offering to do the like when we shall be by them thereunto required, "And we do command and require all marine officers, and others to whom it shall appertain, to let him safely and freely pass with his said vessel, arms and company, and the prizes which he shall take, without doing, or suffering to be done to him any trouble or hindrance; These "In witness whereof we have signed these presents, and caused them to be sealed with the seal of our arms, and counter-signed by the secretary-general of the marine, at Versailles, the 10th day of the month of July, 1696. L. A. DE BOURBON." "By my lord de Vallencour." (L. S.) "The present Commission was registered in the admiralty of Bulloigne, after having been seen by us James Abbot de la Cocherine, the king's counsellor, deputed to the intendency of Bulloigne, exercising the charge of lieutenantgeneral of the admiralty, in the presence of the king's proctor, at the request of the said captain Vaughan, being present, whom we have permitted to sail and cruise upon the euemies of the estate. Done at Bulloigne the 14th of July, 1696. MAGINON. "Versionem hanc Anglicanam in omnibus, cum suo originali Gallio convenire testor, "WILHELMUS ROCKE, Not. Pub." He was afterwards executed according to his Sentence. 394. Proceedings in Parliament against Sir JOHN FENWICK, bart. upon a Bill of Attainder for High Treason: 8 WILLIAM III. A. D. 1696.* PROCEEDINGS IN THE HOUSE OF COMMONS. November 6th, 1696. ADMIRAL RUSSELL acquainted the House of Commons, that his majesty had given leave to lay before the House, several papers in the nature of informations of sir John * "There was indeed reason to apprehend tumults; for now, after the queen's death, the Jacobites began to think, that the government had lost the half of its strength, and that things could not be kept quiet at home, when the king should be beyond sea. Some pretended, they were for putting the princess in her sister's place; but that was only a pretence, to which she gave no sort of encouragement: king James lay at bottom. They fancied, an invasion in the king's absence would be an easy attempt, which would meet with little resistance: so they sent some over to France, in particular one Charnock, a fellow of Magdalen college, who in king James's time had turned Papist, and was a hot and active agent among them they undertook to bring a body of 2,000 horse, to meet such an army as should be sent over; but Charnock came back with a cold account, that nothing could be done at that time; upon which it was thought necessary Fenwick, in which he and several other persons of quality were named; and desired that they might be brought up to the table and read; and that he might have an opportunity to justify himself, or if he did not that he might fall under the censure of the House. And Mr. Secretary Trumbull being present, did say, to send over a man of quality, who should press the matter with some more authority: so the earl of Ailesbury was prevailed on to go: he was admitted to a secret conversation with the French king: and this gave rise to a design, which was very near being executed the following winter. "But if sir John Fenwick did not slander king James, they at this time proposed a shorter and more infallible way, by assassinating the king; for he said, that some came over from France about this time, who assured their party, and himself in particular, that a commission was coming over, signed by king James, which they affirmed they had seen, warranting them to attack the king's person. This, it is true, was not yet arrived; but some affirmed, they had seen it, and that it was trusted to one, who was on his way hither; therefore, since the king was so near going over to Holland, that he would probably be 3 that he had his majesty's leave to lay those papers before the House; and if the House pleased, he would bring them up to the table. And accordingly (the House shewing a general inclination for it) they were brought up to the table and read (being the account he gave of the last plot under his own hand, and his examination taken by Mr. Vernon, afterwards upon his trial produced); and after the same was read, the House ordered, that sir John Fenwick should be brought immediately before them; and that no person should in the mean time speak with him, or give or receive any paper from him. And the House further ordered that the, lord Cutts, sir Henry Hobart, and Mr. Norris, three of their members, should see their order executed, and in the mean time adjourned to the afternoon. About five o'clock in the afternoon, sir John Fenwick was brought with a strong guard (which the lord Cutts had taken care for) to the House; and being brought to the bar, Mr. Speaker spake to him thus: for the present, the House will send you their pleasure. in again.] [Sir John Fenwick withdrew, and was called Mr. Speaker (Mr. Paul Foley). Sir John Fenwick, since you withdrew, the House have considered of what you said at the bar. They do not think what you said is an answer to what they require; they do expect a full and candid confession from you of what you know; and they think that the best way for you to obtain the favour of the House is to deal ingenuously with them. Sir John Fenwick. Sir, I am in the hands of the law, and I would not do any thing that his majesty might be angry with; for I do not know it is with his majesty's consent: I have acquainted him fully with all I know of the matter; this is all the account I can give you at this time. It is a dangerous point that I am under; I know not but I may come to my trial in a few days: and what I may say, may rise up against me in a court of judicature: I humbly propose it to the house, if they do not Mr. Speaker. Sir John Fenwick, the House understands that you have shewed some incli-think it a hard case for me to make any confesnations to make a discovery of the designs and practices of the enemies of the government; you have now an opportunity to do it; and the House require it from you, that you make a full and ample discovery of all you know of that matter. Mr. Speaker. Sir, if you please to withdraw gone before the commission could be in England; it was debated among the Jacobites, whether they ought not to take the first opportunity to execute this commission, even though they had it not in their hands: It was resolved to do it; and a day was set for it; but as Fenwick said, he broke the design; and sent them word, that he would discover it, if they would not promise to give over the thoughts of it: and upon this reason, he believed, he was not let into the secret the following winter. This his lady told me from him, as an article of merit to obtain his pardon: but he had trusted their word very easily, it seems, since he gave the king no warning to be on his guard; and the two witnesses, whom he said he could produce to vouch this, were then under prosecution, and outlawed: so that the proof was not at hand, and the warning had not been given, as it ought to have been. But of all this the government knew nothing, and suspected nothing at this time." Burnet. sion here, when his majesty hath all I know, I shall be very ready to do what this honourable House pleases to command me; but I desire this House will consider my circumstances. I would not offend the king, nor offend this House. Thereupon, Mr. Speaker again spoke to him debated, whether they should acquaint him to withdraw and being withdrawn, the House with their having those Papers of Information. But they did not think fit to do it for this reason, because they thought these Papers were and that the best way to get the truth out of a contrivance, and made by others for him; him, would be for him to tell his own story. Besides, if the House should let him know they had those Papers, he would only refer to those Papers, as he had lately done, when he was examined by the king and council. It was also debated, whether there should be any threatening words used towards him; but they thought that not proper; for his confession ought to be free and natural. It was also debated, whether they should take notice of his majesty's consent; but that was not thought fit, being thought derogatory to the privileges of the House. So the House ordered him to be called in again; and Mr. Speaker delivered the sense of the House to him in these words: [Sir John Fenwick at the Bar.] Mr. Speaker. Sir John Fenwick, the House has considered of what you have said, to excuse your making a discovery of your knowledge of the designs and practices of the enemies of the government; and they think what you stand upon is only an excuse; they think you have no reason to apprehend the king should be angry with you for making any discovery to this House, this being the proper place to enquire of all things that do relate to the king and government, especially his majesty's safety; and you ought to discover to them what you know. As to what you stand upon, that you should not be prejudiced by what you discover here, I am commanded to tell you, they do take notice by what you have said here, that you have already, notwithstanding what you say, discovered it to the king and council: and they command me to tell you, that you have no reason at all to apprebend, that you shall suffer any thing if you make a full and free discovery here; no man that ever did so, and dealt candidly with this House, ever did: it is in your power to deserve the favour of the House; it is required by the House, that you make a discovery; and this is the last time that you are like to be asked to do it. Sir J. Fenwick. Mr. Speaker, I know not what answer to make to this House; I would not willingly offend it; what I have informed the king of is a great deal; and a man would have some little time to recollect himself; and I have been kept a very close prisoner, and had no conveniency of pen, ink, and paper; it is hard to remember just of a sudden; and I would willingly be secure his majesty will not be angry with me. I was in hopes that his majesty would have informed the House himself; he hath all that I know; my circumstances are hard, I am in danger every day to be tried, and I desire to be secured, that what I say shall not rise up in judgment against me; it is hard to make me accuse myself under these circumstances, and very hard to put me on it now. Mr. Speaker. As to what you say relating to the fear of his majesty's displeasure, and the other excuse, you have had your answer already. As to what you say relating to time, if you will now declare what you know and remember, the House will take it into consideration, whether they will give you farther time to make up the rest. Sir J. Fenwick. Sir, his majesty hath all exactly; it is impossible for me to inform you of it without accusing myself: I do not really know what to ask but a little time, if they would please to give it me. Mr. Speaker. Sir, you know already what the House requires of you. Sir J. Fenwick. 1 do: but it is no excuse that I have made: what I have told is truth, to the best of my knowledge: I am not very good at speaking; and if I might have a little time, I shall do what they please to command me. Mr, Speaker. If that be all you have to say, if you please to withdraw, you shall know the pleasure of the House. (Sir John Fenwick withdraws. Is called in again.) Mr. Speaker. Sir John Fenwick, this House have considered what you stood upon when you were here last, that your memory was bad, and that you desired time; but the House think it a matter of great moment to the king and the whole nation, that those that are their enemies should be discovered as soon as possible; and this being a matter within your knowledge, the House do not think fit to give you time; but if they find, by your discovery, that you deal candidly and ingenuously with them, and have told them as much as you know upon your memory, they will consider of your request of giving you time for the rest. I Sir J. Fenwick. When first I spake to the privy-counsellor, I proposed it to him, whether might have a pardon without being an evidence against any man; and in that case I would serve the king so as to tell him all that I knew. It was upon honour that I did it to him, and he took the words in writing from me, and sent them to the king in Flanders. The king's answer was, That he made no objection as to my being an evidence, nor his giving me a pardon; but that I could expect no pardon, till he knew what I could say: upon that I was encouraged to do what I did for his majesty's service; and have found in all my business since, whatever I do or say, the answer is, it is not satisfactory; and I am where I was. When this was done, there was a message sent to me from the lords justices, That this was not satisfactory, and I must tell all I know: now, when a man hath told all he knows, and this must still be the answer, it is very hard. The king's answer was, That I should more fully make good what I had said. Sir, I did afterwards explain what I had informed that honourable person, and still it was not satisfactory. I hope I shall not find this from this honourable House: I am upon my life, and I hope this House will consider of it: I know this House is good security if I had it; but till I have it, I am under these circumstances, and I may at last be told all is not satisfactory: I desire the House will please to consider of it. Mr. Speaker. Sir, you know the pleasure of the House; you know what they require of you. Sir J. Fenwick. I am very unwilling to offend the House; but these are very hard circumstances, to be told, when I have done all I can, it is not satisfactory. Mr. Speaker. Sir, you know what the House does expect; you must either give them satisfaction in it, or withdraw. (Accordingly he withdrew.) And a motion was made for leave to bring in a Bill to attaint sir John Fenwick of high-treason; and after a debate thereupon, the House divided. Yeas, 179. Noes, 61. So it passed in the affirmative. November 9. The Bill was presented to the House; and after a long debate, the question was put for the second reading of it; whereupon the House divided. Yeas, 196. Noes, 104. So it passed in the affirmative, and Friday morning was appointed for it. The same day the House ordered, That sir John Fenwick should have a copy of the Order for reading the Bill the second time, and a copy of the Bill; and that he should be allowed pen, ink, and paper. And further ordered, That Mr. Attorney General and Mr. Solicitor General should prepare and produce the evidence against him on Friday morning. And Mr. Speaker this day acquainted the House, that he had received a letter from Mr. Fuller, which he thought fit to acquaint the House with; but upon a question for reading of it, it passed by a very great majority in the negative; so that there was no division upon that matter, but the letter was writ in the words following: "Sir; "I presume that no person whatever, in the interest of the present government, hath been more actually engaged with sir John Fenwick than myself, it being my fortune several times to bring letters to him from the late king and queen at St. Germains, and to carry his an. swers: I have also been with him at private consults of the late king's adherents, as my Informations assert; so that if I may be serviceable to the detecting his treasons, I shall be very ready to serve the government, and to demonstrate my integrity. I am, Sir, &c. "W. FULLER." November 10. Sir John Fenwick sent the Speaker a Letter in these words: "Sir; November 12. A Petition was presented from sir John Fenwick, as follows: To the Hon. the Knights, Citizens, and Burgesses in Parliament assembled: The humble Petition of Sir John Fenwick, bart. "Sheweth, "That there being a Bill of Attainder brought into this House for the attainting of your petitioner of High-Treason, and your petitioner is advised, that there are many weighty reasons to be offered against the said bill: Your petitioner therefore most humbly prays, that your honours will be pleased to hear him by his counsel against the passing of the said bill at the bar of this honourable House; and to appoint such time for the same, as to your hoAnd your petitioner "J. FENWICK." nours shall seem meet. Which prayer of his Petition was granted. Nov. 13. Sir John Fenwick was brought to the House, by order, from the prison of Newgate; and there being a very great company of strangers, both in the Lobby and Speaker's Chamber; and the House being full of members, to prevent the inconvenience that such a number of people crowding in might occasion, the Lobby was ordered to be cleared of all persons that were not concerned, and also the Speaker's Chamber, and that the back-door of the same should be locked, and the key laid upon the table: but it having been said, that the Lords did admit the members of this House to hear their debates, there was private intimation given the serjeant to let them remain in the Speaker's Chamber, when others were removed. Then sir John Fenwick was ordered to be Newgate, Nov. 10. "I would have addressed myself in the humblest manner I could to the honourable House of Commons, from whom I received a copy of a Bill against me with their order; but my keeper will not carry any paper from me but to yourself, to whom I durst not presume to send a petition to deliver for me. Therefore I beg the favour you will please to acquaint the House, that it is my humble petition to them, That they would give leave for my counsel, sir brought to the bar: but it being a proceeding Francis Pemberton, sir Thomas Powis, and sir of that nature, that none of the ancientest memBartholomew Shower, to come to me with my bers could give a precedent, it was necessary solicitor, Christopher Dighton, to advise with to settle some preliminaries; and the first quesalone. The keeper will not so much as let me tion that was moved, was, Whether the Mace send the copy of the bill and order to my soli- ought to lie upon the table when sir J. F. was citor, so it is of no use to me: I humbly begin the House, or whether the serjeant ought they will please to give order, that I may have all assistance that is necessary for me, and that you will pardon this trouble from, "Sir, your's, &c. "JOHN FENWICK." Upon this Letter they did readily order that he should be allowed two counsel to make his defence, and that they might be alone with him; and after some debate, did give leave that he might have the solicitor he desired, though it was said, his solicitor was a very great Jacobite; and it was insinuated, that he was suspected to be concerned in the escape of Goodman; but it was also said, that he had been made use of as his solicitor to prepare for his Trial, and before that, in other matters; and so that it might not be thought that there was any hardship upon him, in that respect, the House thought fit to allow Mr. Dighton to be his solicitor. not to stand by him with it at the bar? Mr. Smith. Sir John Fenwick being a prisoner, the mace ought to be at the bar, and then no member can speak. Mr. Boyle. This hearing, of any thing I can think of, is most like the hearing of an election; and then the mace is upon the table, and every one has liberty to speak and ask questions. Chancellor of the Exchequer. (Mr. Charles Montague.) The Mace ought not to be upon the table, because he is a prisoner: the sheriffs of London can't have him in custody here, and so they deliver him into custody of the serjeant. Mr. J. Howe. That argument would be good, if he could not be in custody of the serjeant unless he had the mace in his hand. Mr. Brotherton. The mace ought to be upon the table, because the bill is to be read. Mr. Chr. Musgrave. The mace ought to be upon the table. Never any bill was read but the mace was upon the table. question was asked by any member; any member hath liberty to propose any question, but it must be asked by the chair. Col. Granville. If the mace be upon the table it would be a great hardship to the members that they cannot speak, and a great hard-ed, That sir John Fenwick should stand with Afterwards the question was put, and it passship upon the prisoner that he cannot ask any the mace at the bar. questions. My lord Torrington was brought prisoner from the Tower, and upon account of bis quality the house did not let him go to the bar: but while he was in the house, the mace was upon the table, and he gave an account of the whole campaign; and every body was at liberty to ask what questions they pleased, Attorney General. (Sir Thomas Trevor.) The matter is very new: and I think it is necessary you resolve upon the method before you call in the counsel, that you may acquaint the counsel with it; I think it not proper that the mace should be upon the table, because he is a prisoner; though it may not be necessary that the serjeant should have it upon his shoulders all the time, but he may ease himself. I believe you will ask sir J. F. what he has to say, but no questions to make him accuse himself: and I humbly propose it to you, that after the counsel is called in, they may open the nature of the evidence against sir J. F.; and then, whether you will permit them to go on, or they shall withdraw, and the house will consider what questions shall be asked. Col. Mordaunt. I hope the questions will be taken down upon a paper by the Speaker, and then read to us, that we may see if they be right, and so asked by the Speaker. Sir W. Williams. If the mace is not upon the table, our mouths are muzzled: we are in the nature of judges; and shall we pass a vote that the judges shall not ask any questions? Sir Tho. Dyke. I cannot be informed without asking of questions: I know not whether you are a House without it, without having the mace upon the table. And will you act in your highest capacity without being a House? I do not know how it was when the lord Torrington was here; but when the duke of Leeds was here, the mace was upon the table. Then a question arose about reading of the Bill: some gentlemen said, it could not be read when the counsel was present, for the mace would be off the table; (and they seemed to be under a difficulty by having passed the last question;) others said, it was not necessary to read it whilst sir J. F. was present, he having had a copy of it; but at last it was thought reasonable, it being in the nature of a charge upon him, that it should be read to him when present with his counsel; and it was said, it was done so in the case of indictments, though copies were delivered to them: but it should be read only as a matter of form, as a charge to which he was to answer; but it could not be reckoned a second reading, according to the rules of the House, the mace being off the table; and therefore it should be read again when the counsel and he was withdrawn. And it was said, that the Journals did take notice, that in some cases, as in the case of an adjourned debate, some bills had been read four times; and so it was agreed, and that difficulty was solved. And the serjeant took the mace, and brought sir John Fenwick to the bar; and Counsel was admitted for him, and for the bill, viz. Mr. Serjeant Gould, king's serjeant, and Mr. Recorder Lovel, likewise king's serjeant. sir Thomas Powis, and sir Bartholomew Shower, for sir John Fenwick. And And Mr. Speaker opened the matter thus: Mr. Speaker. Sir John Fenwick, the house have received Information that you have been in a horrid conspiracy against the life of his majesty, and for bringing in a French force to invade this kingdom, that you have been indicted thereof; and they have considered the Mr. Boyle, I wish you had appointed a com- nature of the crime with which you stand mittee to have settled the preliminaries, and charged, and how destructive it would have that the bill had not been brought in at all; been (if it had succeeded) to the very being of what they labour, as a matter to avoid delay, this kingdom; and therefore, that you may not may occasion more. For though, when you go unpunished, if you are guilty, have ordered carry the mace to the table, no member should a bill to be brought into this house to attaint have the liberty to speak, yet any member hath you for high-treason, which hath been once liberty to desire that the counsel may with-read, and will be now read to you at the bar; draw, and they must withdraw, and the mace must be brought upon the table. Chanc. of Excheq. That gentleman is certainly in the right: but I think the mace must not be upon the table till when the prisoner is here; and I think the questions must be asked by the chair. The longest examinations that I remember was of the admiralty, and then the questions were asked by the chair. For the instance of my lord Torrington, it is true, he had not the mace with him, but he came at his own request, he came to give you an account of his proceedings; and in that case not a VOL. XIII. and then you will hear the evidence against you, and have liberty to make your defence: and though you cannot claim any right thereto, this house (to shew how ready they are to favour you, in giving you any reasonable help to make your defence) do allow you counsel to assist you therein; and having granted you this their favour, they do expect that you will make a good use of it. I am likewise to acquaint those that are your counsel, that this house do reckon their own prudence will so guide them, as not to give any just offence to this house; and that they will not be allowed to question 2 N |