l at all. He admitted that there
had been many bills of attainder, but they were generally levelled at
outlaws and fugitives; and some of them had been reversed in the sequel
as arbitrary and unjust. He urged that this bill of attainder did not
allege or say that sir John Fenwick was guilty of the treason for which
he had been indicted; a circumstance which prevented him from producing
witnesses to that and several matters upon which the king's counsel had
expatiated. He said they had introduced evidence to prove circumstances
not alleged in the bill, and defective evidence of those that were; that
Porter was not examined upon oath; that nothing could be more severe
than to pass sentence of death upon a man, corrupt his blood, and
confiscate his estate, upon parole evidence; especially of such a wretch
who, by his own confession, had been engaged in a crime of the blackest
nature, not a convert to the dictates of conscience, but a coward,
shrinking from the danger by which he had been environed, and even
now drudging for a pardon. He invalidated the evidence of Goodman's
examination. He observed that the indictment mentioned a conspiracy
to call in a foreign power; but as this conspiracy had not been put in
practice, such an agreement was not a sufficient overt-act of treason,
according to the opinion of Hawles the solicitor-general, concerned in
this very prosecution. So saying, he produced a book of remarks which
that lawyer had published on the cases of lord Russel, colonel Sidney,
and others, who had suffered death in the reign of Charles II. This
author, said he, takes notice, that a conspiracy or agreement to levy
war is not treason without actually levying war; a sentiment in which
he concurred with lord Coke, and lord chief-justice Hales. He concluded
with saying, "We know at present on what ground we stand; by the
statute of Edward III. we know what treason is; by the two statutes of
Edward VI. and the late act, we know what is proof; by the Magna Charta
we know we are to be tried _per legem terrae el per judicium parium_,
by the law of the land and the judgment of our peers; but if bills of
attainder come into fashion, we shall neither know what is treason, what
is evidence, nor how nor where we are to be tried." He was seconded by
sir Bartholomew Shower, who spoke with equal energy and elocution; and
their arguments were answered by the king's counsel. The arguments in
favour of the bill imported that the parli