a court of law could not proceed upon it, yet no man could raise in himself' a doubt concerning it. Antiently treason was judged as a felony still is, upon such presumptions, as satisfied the jury. The law has now limited this to two witnesses brought face to face. But the parliament may still take that liberty, which is denied to inferior courts, of judging this matter, as an ordinary jury does in a case of felony. In the present case there was one witness viva voce, upon whose testimony several persons had been condemned, and had suffered; and these neither at their trial, nor at their death, disproved or denied any circumstance of his depositions. If he had been too much a libertine in the course of his life, that did not destroy his credit as a witness. In the first trial this might have made him a doubtful witness; bus what had happened since bad destroyed the possibility even of suspecting his evidence. A party had been in interest concerned to inquire into his whole life, and in the present case had full time for it; and every circumstance of his deposition had been examined; and yet nothing had been discovered, that could so much as create a doubt. All was still untouched, sound, and true. The only circumstance, in which the dying speeches of those, who suffered on his evidence, seemed to contradict him, was concerning king James's commission; yet none of them denied really what Porter had depos Scotland: so that though this kingdom,' singly taken, must be meant of England, yet it might well be meant of that kingdom,' which was the subject then of the debate. Since then the words were capable of that favourable sense, and that both he, who spoke them, and they, who heard them, affirmed, that they were meant and understood in that sense, it was a most pernicious precedent, first to take them in the most odious sense possible, and then to destroy him, who said them, upon the testimony of one single exceptionable witness. Whereas if, upon the commons refusing to grant the king's demand, he had plainly advised the king to subdue his people by force, it is hard to tell, what the parliament might not justly have done, or would not do again in the like case. In Charles 2's time some of the most eminent of the regicides were attainted, after they were dead; and in king James's time the duke of Monmouth was attainted by bill. These last attainders had their first beginning in the house of commons. Thus it appeared, that, these last two hundred years, not to mention much antienter precedents, the nation had upon extraordinary occasions proceeded in this parliamentary way by bill. There were also many precedents of this method. And whereas it was said, that an ill parliament might carry these too far, it is certain, that the nation, and every person in it, must be safe, when they 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 the other hand, if that be ill chosen, there is no help for it; the nation must perish, for it is by their own fault. They have already too many precedents for this way of proceeding, if they intend to make an ill use of them. But a precedent is only a ground or warrant for the like proceeding upon the like occasion. Two rules were laid down for all bills of this nature; first, that the matter be of a very extraordinary nature. Lesser crimes had better be passed over than punished by the legislature. Of all the crimes, that can be contrived against the tation, certainly the most beinous one is, that 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 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. there was a commission come from king James 3 C 3 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 done 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 afterwards, how little regard he had, either to law or liberty, though, upon this occasion, he had made use of the one to protect those, who were in a plot against the other." This last expression was much resented by those, who were against the bill, as carrying a severe reflection upon them for opposing it; and indeed the bishop, though he only offered what reasons occurred to him to justify his voting for the bill, fell under a great load of censure on this occasion. In conclusion, the bill passed by a small majority of seven voices ford, Weymouth, Longueville, Willoughby of the negative entered the following Protest: Protest thereon.-The Lords who were for "Because bills of attainder against persons in prison, and who are therefore liable to be the lives of the subject, and, as we conceive, tried by law, are of dangerous consequence to may tend to the subversion of the laws of this kingdom.-Because the evidence of grand sir J. F. as also the evidence of the petty juryjurymen, of what was sworn before them against men, tage of cross-examining him.—And it did not 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, Scarborough, 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, Northumberland, 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. 2 for the most horrid blasphemy which was The king gave the royal assent to this bill The WRIT for Executing sir John Fenwick, being under the whole Broad Seal, and inclosed in it. “Gulielmus tertius Dei Gratia, Angliæ, Scotia, Francis, et Hiberniæ, Rex, Fidei Def, &c. Vic. Com. London, et Vic. Com. Midx. "I do also declare, in the presence of God, that I knew nothing of king James's coming to Calais, nor of any invasion intended from thence, till it was publicly known: And the only notion I had, that something might be attempted, was from the Toulon fleet coming to Brest. "I also call God to witness that I received the knowledge of what is contained in those papers that I gave to a great man, that came to me in the Tower, both from letters and messages that came from France; and he told me, when I read them to him, that the prince of Orange had been acquainted with most of those things before. All the Punishment being remitted but Beheading, on the 28th of January 1697, sir John Fenwick was brought to a Scaffold erected on Tower Hill, where he delivered this PAPER to the Sheriffs. Speaking nor writing was never my talent: I shall therefore give a very short, but faithful account, first, of my religion, and next, what I suffer most innocently for, to avoid the calumnies I may reasonably expect my enemies will cast upon me when dead; since they have most falsely and maliciously aspersed me, whilst under my misfortunes. "As for my religion, I was brought up in the church of England, as it is established by law, and have ever professed it; though I confess I have been an unworthy member of it, in not living up to the strict and excellent rules thereof; for which I take shame to myself, and humbly ask forgiveness of God. I come now to die in that Communion, trusting, as an humble and hearty penitent, to be received by the mercy of God, through the merits of Jesus Christ my Saviour. ་་ My religion taught me my loyalty, which I bless God is untainted; and I have ever endeavoured in the station wherein I have been placed, to the utmost of my power, to support the crown of England in the true and lineal course of descent, without interruption. "I might have expected mercy from that prince, because I was instrumental in saving his life: For when, about April 1695, an attempt formed against him came to my knowledge, I did, partly by dissuasions, and partly by delays, prevent that design; which, I suppose, was the reason that the last villainous pro "If there be any persons whom I have injured in word or deed, I heartily pray their pardon, and beg of God to pardon those who have injured me; particularly those who with great zeal have sought my life, and brought the guilt of my innocent blood upon this nation, no treason being proved upon me. "I return my most hearty thanks to those noble and worthy persons who gave me their assistance by opposing this bill of attainder, without which, it had been impossible I could have fallen under the sentence of death, God bless them and their posterity; though I am fully satisfied they pleaded their own cause, while they defended mine. "I pray God to bless my true and lawful sovereign king James, the queen, and the prince of Wales, and restore him and his posterity to this throne again, for the peace and prosperity of this nation; which is impossible to prosper, till the government is settled upon a right foot. "And now, O God! I do with all humble devotion commend my soul into thy hands, the great Maker and Preserver of men, and lover of souls; beseeching thee that it may be always dear and precious in thy sight, through the merits of my Saviour Jesus Christ. Amen.* "JOHN FENWICK." Then he submitted to the block, and the executioner severed his head from his body. * 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 by the celebrated countess of Pembroke in horse or arins, or engaged for any number of 1590. Qu. If sir John Fenwick were not the men, or gave particular consent for any such maker of the translation published in the Harl. invasion, as is most falsly sworn against me. Miscellany ? 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.†] his youth by an unkind father, and in his old' age to undergo the like rigid fate by unprece dented acts of parlament, without ever being heard, or proved criminal by any court in the kingdom. MAJOR John Bernardi was the son of John began to entertain thoughts of getting Francis Bernardi, descended of an ancient from under his father's discipline, who used noble family, counts of the holy empire, &c. him with great severity; sometimes confining This Francis was sent to England by the serene him like a criminal in a little dark room for republic of Genoa, with credentials from the trifles, allowing him only bread aud small duke and governors of that state, in the cha- beer; and whilst so confined, nobody durst reracter of agent, and afterwards of that of resi- lieve him, or let him out. Thus this John Berdent, from 1651, until after the happy restoranardi was unhappily destined to confinement in tion 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, he 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 his 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. for return; but recommended him by letter to captain Littleton Clent, a relation of her lady ship's, then in garrison at Portsmouth, and equipped him with necessaries and money 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 revolation. 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 flap meet and receive them: In the mean time king of his coat, he crowded back to the breach, and Bernardi proceeded on his journey from the braes of Monteth, under the conduct of a guide appointed him by colonel Graham, and arrived at Edinburgh in the month of November 1691. The rulers of that city having heard that some gentlemen were come from the highlands, ordered their gates to be shut, and a general search to be made for them. Bernardi's landlord getting notice of it, conducted him out of town, but half an hour before that order was put in execution; otherwise his journey at that time had terminated in the Tolbooth, or some other prison in Edinburgh; but escaping that and other dangers, he travelled on from thence to London, meeting with no more difficulties at that time, than those of a long winter journey. But misfortunes may be compared with evil habits, it being no easy task to get out of either, when once unhappily fallen into the road of them. And this proved to be Bernardi's case; for, having finished his affairs in London, by disposing of some effects he had left with a friend when he went out of England, and by selling his Scotch horses, he purposed to go over into Flanders; and meeting with two gentlemen of his acquaintance ready to go out of town, in order to make the same voyage, he went with them to Colchester, where they were recommended to a master of a ship, who was in a short time to carry over a lady of great quality to Ostend; but the wind happening to be fixed in the east, the lady ordered her trunks to be put on shipboard, and then went to a gentleman's house about five miles off, charging the master to send for her as soon as the wind came "This laird of Glencoe was a little while afterwards, with his lady and vassals, barbarously murdered. See a 4to Pamphlet, intituled, Murder will out.' The English parliament voted Former Edit.. this a barbarous Massacre."" For the Proceedings in the Parliament of Scotland respecting the Massacre of Glencoe, sea the present volume, post, |