of a great reward, he applied to one of the ministers, who laid his project before the late French king; but that monarch, considering that so destructive an engine might soon be turned against his own men, did not think proper to encourage it, whereupon the inventer came over into England, and offered his service to some of our generals, who likewise rejected the proposal with indignation." The use and application of this story, added his lordship, is very obvious for if this way of proceeding be admitted, it will certainly prove a very dangerous engine: no man's life, liberty, or property will be safe; and if those, who were in the administration some years ago, and who had as great a share in the affections of the people, as any that came after them, had made use of such a political machine, some of those noble persous, who now appear so zealous promoters of this bill, would not be in a capacity to serve bis Majesty at this time. His lordship added, that if such extraordinary proceedings went on, he saw nothing remaining for him, and others to do, but retire to their country houses, and there, if possible, quietly enjoy their estates, within their own families, since the least correspondence, the least intercepted letter, might be made criminal. To this purpose his lordship quoted a passage out of cardinal de Retz's Memoirs, relating to that wicked politician, cardinal Mazarin, who boasted, "That if he had but two lines of any man's writing, with a few circumstances attested by witnesses, he could cut off his head when he pleased." His lordship also shrewdly animadverted on the majority of the venerable bench, towards which turning himself, he said, He could hardly account for the inveterate hatred and malice, some persons bore the learned and ingenious bishop of Rochester, unless it was that they were intoxicated with the infatuation of some of the wild Indians, who fondly believe they inberit not only the spoils, but even the abilities of any great enemy they kill. along, and still opposed these extraordinary proceedings, which tended to lodge an exorbi tant power in their fellow-subjects: That if he were to lose his liberty, he had rather give it up to one single tyrant, than to many: for a tyrant, if a man of common understanding, would, for his own sake, be tender of the lives of bis subjects; whereas many tyrants would endeavour to destroy one another, to get one another's employments. The Earl of Finlater endeavoured to shew, That the evidence that had been produced before them, being sufficient to convince any rea sonable man, that there had been detestable Conspiracy; and that the bishop of Rochester had a great share in it, was likewise sufficient to justify this extraordinary proceeding against him, especially since they inflicted on him so light a punishment, considering the heinousness of his crime. The Duke of Argyle pursued the same argument; run through and confuted the most essential parts of the Bishop's defence; and, with vehemence, aggravated his offence, by which he had debased his holy function and character, and acted contrary to the solemn and repeated oaths he had taken. The Lord Gower spoke against the Bill. Lord Lechmere, who had all along expressed his dislike of these extraordinary proceedings, declaring it as his opinion, that there was suf ficient evidence to support the charge. was answered by Lord Cowper, who spoke as follows: He This debate has been already carried to that length, and is by all agreed to be of such im portance, that I am sure your lordships will permit me to enter into it without any apology. I am, my lords, against this bill, not only be cause I think nothing has been offered sufficient for the support of it, but because I think the honour and dignity of the crown, the dignity and authority of this House, and the credit The Lord Strafford spoke on the same side, concerned in the event of it. My lords, and reputation of the House of Commons, as did also Lord Trevor, who urged, That if men were in this unprecedented manner, proceeded against without legal proof, in a short time men would be tried, as they were liked by ministers that for his own part, he believed he stood but indifferently in the opinion and liking of some persons, and therefore he had reason to think himself the more in danger, because at present they wanted the protection of the law, [meaning the Suspension of the Habeas Corpus Act] and as in a short time, they were like to be so unhappy as to be deprived of his Majesty's personal protection, and were still liable to be confined upon suspicion, which he took to be no more than will and pleasure; they were consequently at the will and pleasure of the ministers: That, however, no apprehension of what he might suffer should deter him from doing what he thought his duty: that, consonant to that principle, he bad all The proceedings of that House have been, in this case, very remarkable and uncommon: They voted the bishop guilty of hightreason the very first thing they did; and it was reasonable to expect, that the consequence of that vote would have been an order for an impeachment in parliament, or a prosecution in the ordinary course of law. But, my lords, we see they have taken another method, and that without weighing what the consequences might be. They have taken a method, whereby they have made themselves both judges and accusers. They could not, as judges, decently proceed against the bishop, without hearing him, and therefore they gave him a day for that purpose, and thereby they discovered the dilemma into which they had run themselves. They found themselves obliged to hear him, and yet they could not acquit him, because they had already prejudged him. It is not therefore to be wondered that they have passed this bill; though, I believe, they would be very well pleased your lordships should reject it, that the knowledge of their having taken so wrong a step, might the sooner be forgotten. My Lords, A great deal has been said, and surely too much cannot be said, to shew that this bill is an infringement upon the authority of this House. It becomes your lordships to support your dignity, and to shew a suitable resentment, when the least of your privileges is invaded. Your lordships, upon this occasion, would do well to follow the example even of this very House of Commons: How contemptuously did they throw out a bill lately sent them, because they thought it looked like a money bill? And will your lordships suffer them to share your authority, to become judges equal with yourselves, when there is no necessity for it? In this case, it is manifest, there can be no necessity, because the bishop is amenable to justice: He has been confined several months; he is now strictly guarded; and, no doubt, the zeal of the governor will prevent his running away. But, my lords, if it could be supposed that this bill did not affect your lordships' authority; yet if it affects the honour of the crown, I am sure, it will raise a becoming indignation in us all against it. This bill, if your lordships pass it, will put his Majesty under the unavoidable necessity of refusing the royal assent to it, or of condemning one of his subjects, a lord of parliament, and a bishop of that church of which his Majesty is guardian and protector, in a case at least doubtful; and that without hearing one word either of the charge, or of the defence. My lords, It hath been often said, (I wish it were said without grounds) that we have a disaffected party amongst us. I am persuaded, it is far from the intention of any lord here, to advise his Majesty to do any thing that might possibly increase that disaffection: But whether the passing of such a bill against a bishop of the church of England, unheard, may not give a handle to the clamorous, to raise an odium against his Majesty's administration, is submitted to your lordships. His Majesty's great cle: mency and mercy are known to all the world; and he has been in nothing more conspicuous, than in the exercise of those royal virtues: supposing, then, your lordships should pass this Bill, how can you ever hope for the royal as sent to it? These objections, that concern the king, appear to me unanswerable, not only with regard to this bill, but to all bills of attainder in general. I think they ought never to be allowed, but when the offender flies from justice, or is in open rebellion; and then, perhaps, the notoriety of the fact may be some excuse for the extraordinariness of the proceeding. My Lords, I expected to have heard from that reverend bench many arguments of another kind against this bill, which are properly within their sphere, and which I am sure they are perfect masters of. The old champions of our church used to argue very learnedly, "That to make or to degrade bishops was not the business of the state; that there is a spiritual relation between a bishop and his Auck, derived from the church, with which the state has nothing to do:" But this bill derives the bishop of that spiritual relation, without the concurrence of the church. The parliament alone does it; and it must be owned, that if the parliament can do it, they can as well make a new one in his room; and a clause for that purpose, added to this bill, would as effectually do the one as the other. What the thoughts of our reverend prelates are upon these points, does not yet fully appear; something of their conduct intimates, as if our old divines were mistaken: But, be that as it will, as the judgment of our prelates will carry great weight, and as the reasons for such their judgment must needs be convincing, I do not doubt but they will give your lordships full satisfaction before this debate comes to a period. In the mean time, I speak my concern, that if acts of parliament are made to interfere with church-affairs: if bishops are to be put in or turned out at pleasure; and all this to be done without the concurrence of the church, the world abroad may, though unjustly, look upon our church as a creature only of the state, and treat our bishops, as if they were no more than state officers. I hope, however, from the courage, zeal, and conduct of our present reverend prelates, whatsoever becomes of this bill, that they will be able to wipe off any such scandal: They certainly have the honour, the dignity, and authority of our church always at heart; and every thing tending to her interest, they will most zealously promote. But whether the passing of this bill promote her interest, or be of any service to her, they best know: For my part, I cannot even guess at any advantage she possibly can receive by it, unless it be this, That it will make the bishoprick of Rochester, and the deanry of Westminster, to become vacant. My Lords, This bill carries in the frame of it an invincible objection to it; for the preamble and the enacting part, the crime and the punishmen, bear no proportion to each other. The preamble contains a charge of high-treason against the bishop; and, pray, my lords, why should he not be punished accordingly? Is it because he is a bishop of the church of England, or a lord of parliament, or in high favour with the king or his ministers ? I have not heard that the bishop hath been at court of late; but be it either of these, it would be so far from being a reason for mitigating his punishment, that it ought, if possible, to increase it. My Lords, Our laws have wisely taught us to have a just abhorrence of, high-treason, and have ordained for it the severest punishment that English clemency will admit of; and shall he, who has been voted the principal contriver and director of this most horrid and detestable treason, escape with a punishment less than his induce a belief of the thing he swears, is legal evidence; and yet so tender is our law, so great a degree of certainty doth it require, that, as it now stands, two positive witnesses are required to convict a man of high-treason. This, however, hath been preposterously enough urged, to shew a difference between legal and real evidence and sir John Fenwick's Case hath been cited for the same purpose. But this, with submission shews no difference at all; for will any one say, that one credible witness is not legal evidence? Can any court in the kingdom, upon a trial of high-treason, refuse to hear such evidence? And is not such evidence suthicient too in all cases, where some positive law, for the greater certainty, doth not require more? crimes deserve, and that too in full parliament? Methinks, if it were necessary that the legislature should interpose in this case, the heinousness of the offence should fire their resentinent; and instead of abating the punishment, should put them upon heightening it with all the circumstances of severity that their wisdom could contrive. As in the case of the late South-Sea directors: No one will say, but that they might have been punished as cheats, without the help of an act of parliament; but as the punishment ordained by our laws for such offences came not up to the aggravating circumstances of their guilt, a law was made to punish then on purpose; and they were justly stripped of their estates, who had before so notoriously cheated, bubbled, and beggared the whole na tion. What reason, then, can be given why One of the learned gentlemen at the bar, the bishop should not be punished, at least equal (Mr. Waerg,) I suppose out of pure zeal for this with others, in cases of high-treason? Why bill, and not with a design to misguide his autruly, the want of legal evidence is the only dience, did roundly affirm before your lordreason pretended: A reason! in my appre- ships, that no evidence, strictly speaking, was hension, so very mean and trifling, that it ought legal, but what was mathematical. I am connot to have been heard in the supreme judica- fident, that gentleman would not have given ture of a nation, without the severest censure, this as his opinion under his hand at his chamand such as would well become your lordships ber, because he knows it is directly contrary to to treat with the utmost indignation and con- truth: He knows very well that no offender, tempt. that puts himself upon his trial, can be convictFor, my Lords, is it come to this at last, thated, but upon the oath of one or more witnesses; after so much grimace, so much noise and stir, after committing the bishop for high-treason, after voting him a traitor, and treating him as such, must it at length come out, that there is no legal evidence against him! To palliate the matter a little, a distinction is endeavoured to be made between legal. evidence and real evidence, or between such evidence as our law requires, and such as in natural' justice and equity ought to be admitted. But, my Lords, this is a distinction entirely without a difference; for what is evidence of a fact before any judicature whatsoever, but such testimony as the nature of the case requires, to induce a moral certainty of the truth of the thing testified: The greater or less consequence the case is of, the more or less proof is required to induce such certainty. Thus, in ordinary matters, barely to prove a hand-writing is held sufficient evidence; because, in such cases, it is not to be supposed the hand-writing should be counterfeited: In other cases, seeing the party write, is necessary to be proved; and still as the weight of the case increases, stronger proof is required. Ever since the reversal of the attainder of colonel Algernon Sidney, the proving of treason by the proving of hand-writing, hath been, with great justice, condemned; and, why, I pray? But because there can be no hand-writing but what will admit of a counter. feit; and nothing that is capable of being counterfeited, carries with it such a degree of certainty, as is necessary where a man's life and fortune is concerned. My Lords, legal evidence is nothing else but such real and certain proof, as ought, in natural justice and equity, to be received; and therefore the oath of one credible witness, being certain and sufficient to VOL. VIII. he dares not deny but that such conviction is founded upon legal evidence, strictly so speaking; and no one will pretend to say, that any evidence of witnesses can be called mathematical. But the gentleman goes on, and says, That the evidence for this bill is legal, in the general sense of the word : On the contrary, I beg leave to affirm, That it is not legal in any sense whatsoever. No act of Parliament hath made it legal, nor can it, in natural justice and equity, be called so, for want of sufficient certainty; and, indeed, it hath been admitted throughout this debate, and even by the counsel who spoke first for this bill, that it is not supported by legal evidence. But this gentleman was pleased to go still farther, for he affirmed before your lordships, That depositions taken in writing, were not evidence in any court of law. My Lords, it is pity that in so fine a speech there should be so much false doctrine: It is very true, that the law doth require the best evidence that the nature of the case will admit of; and therefore will not suffer the depositions of a witness in writing to be read, where such witness can be examined riva voce: But that gentleman could not but know, that where such living witness is not to be had, his depositions in writing are never refused, nor any other evidence that, in natural justice and equity, can tend to discover the truth of the fact in question with certainty. My Lords, The wisdom and goodness of our law appear in nothing more remarkably, than in the perspicuity, certainty, and clearness of the evidence it requires to fix a crime upon any man, whereby his life, his liberty, or his property may be concerned: Herein we glory and pride our Z selves, and are justly the envy of all our neigh-ed to Kelly the three letters, dated the 20th of bour nations. Our law, in such cases, requires evidence so clear and convincing, that every by-stander, the instant he hears it, must be fully satisfied of the truth of it; It admits of no surmises, inuendo's, forced consequences, or harsh constructions, nor any thing else to be offered as evidence, but what is real and substantial, according to the rules of natural justice and equity. These are the rules the judges go by, nor have they any other in determining what is, or what is not to be admitted as evidence before them; and therefore to say, that the law refuses such evidence as is real, and ought, in natural justice and equity, to be admitted, is to cast an imputation upon the law, which is not only unjust, but entirely groundless. My Lords, I think sufficient hath been said to shew the mistake of those noble lords who have endeavoured to distinguish between legal and real evidence. The distinctions that have been made, and the instances that have been produced, shew only what legal evidence is sufficient for conviction, and what not; and if that were the question now before your lordships, it would deserve another consideration. The present question is, Whether any evidence at all has been offered to your lordships to fix treason upon the bishop of Rochester; and for my part, my Lords, I am clearly of opinion, that you have had no such evidence: It is on all hands agreed, that no legal evidence of treason has been offered against him; and, 1 hope, I have sufficiently satisfied your lordships, that if it be not legal evidence, it is not real evidence, or such, as in natural justice and equity, ought to be admitted, and consequently no evidence at all. My Lords, the counsel for the bill have not attempted to prove positively against the bishop any one single criminal act: The circumstances that they have offered are in my opinion, so far from affecting him, that they carry in them no appearance of guilt in him whatsoever. If indeed there had been any one positive witness against him, your lord ships, perhaps, (as was done in sir John Fenwick's Case) might, with some appearance of reason, have admitted circumstances in support of such witness, rather than a man of the bishop's rank and character should go unpunished; and, indeed, I think, no man's cunning ought to be a protection for his villainy; and I hope, and do not doubt, but all traitors will, one time or other, meet with their just rewards. But, my lords, in the case before you, the whole charge is built upon circumstances, and these are said to be supported by other circumstances; but, all of them are so remote, so general, and, I may say, so inoffensive, that they might suit any lord here as well as the - bishop; for there is not one single circumstance of them all, such as in its nature would be admitted as evidence of any crime against any man in any court in the kingdom. To come, my Lords, to particulars, the treason charged upon the bishop is, That he dictat April, 1722, signed, Jones, Illington, and 1378. And in maintainance of this charge, it is said, that those three letters were the same handwriting with another letter produced before your lordships, and dated the 20th of August following: That from the 20th of April to the 20th of August, letters were continually sent abroad in the same hand-writing; that these letters contained a treasonable correspondence; that they are the hand-writing of Kelly; that Kelly had been with the bishop two or three times within these two or three years past; that there are circumstances in the case of Jones in this correspondence, that suit with the case of Illington, and circumstances in the case of both that suit with the bishop. These are the facts that are the main foundation upon which the bishop's heavy charge is built; and surely it well behoves your lordships to consider seriously how they are proved, and in what manner, and with what degree of certainty they affect him. The three letters taken simply carry no treason in them; they have not yet been decyphered into treason, and were it not for a name in the direction of one of them, which is said to be a cant name of the Pretender's, they probably might have passed as harmless undesigning letters; will your lordships therefore suppose that the writer directed his letter to the Pretender by the cant name of Jackson, when yet it does not appear that he ever knew the Pretender had such a cant name? Ought we not rather to suppose in favour of innocence, that the letter was not intended for the Pretender, but for one whose real name it bears? These cant names, and the art of the decypherers have been the means made use of to make this correspondence treasonable; but will it not be thought hard that a man must be conjured into treason by a magic art that none of us understand, and by a parcel of names that the wisest of us are not yet able to discover whether they were designed for cant names or for real ones? To make the matter clearcr, the clerks of the postoffice are called, and they prove that the several letters, produced before your lordships, are true copies of original letters, sent abroad as directed; which originals, according to the best of their judgment and belief, are the same handwriting with the letter of the 20th of August abovementioned. This judgment and belief of theirs is founded, without comparing any two of these originals together, or without pretending to say whose hand-writing they are, or to whom they belong. My Lords, I have already observed, that the proving of a hand-writing is, at hest, but evidence too precarious and uncertain, to make good a charge of so weighty a nature as this in judgment before you; but I cannot help taking notice, that the proof of these letters, so as to make them treasonable, is still more precarious, more uncertain and slippery, than any thing of the kind I ever met with. The usual way to prove a hand-writing, so as to fix a charge upon the writer, is, for the witness to swear that he hath frequently seen the party write, or that he hath corresponded with him, and received several letters from him, and therefore is very well acquainted with his usual character and way of writing: and then the writing itself is produced, the witness swears to it, and the import of it is discovered by every by-stander. But here these post-office clerks are forced to call in aid, a messenger and a servant, to fix the hand-writing of the letters they produce; the letters themselves are unintelligible, and therefore the assistance of the decypherers and some cant names must be added, before they can wire-draw treason out of them. My Lords, these decypherers refuse to give your lordships any reason for the construction they have made; they shelter themselves by saying, that to give you a reason, would be to discover their art; happy art, indeed, that shall enable the artist to swear a man into high-treason, and yet it shall not be in the power of the accused person to disprove him. I do not find that these gentlemen pretend to act by unerring rules; they themselves own they may be mistaken, and therefore until your lordships are let farther into their secret, you will judicially look upon the art of decyphering to be no more than the art of guessing, and esteem him that guesses best to be the best decypberer. The messenger and servant that have been called to finish the doubtful evidence of this hand-writing, and to fix it upon Kelly, are far from giving your lordships such an account of it, as can induce you to believe they are sufficiently acquainted with it; they do not pretend to say, that they have been frequently accustomed to see or observe him write, or that they ever received any letters from him, or ever were privy to any of his correspondences; these things, one would have thought, might easily have been proved against a man of Kelly's great dealing and acquaintance, in as full and clear a manner as the nature of the thing would admit of. Your lordships then are pleased to observe, that the evidence offered to prove this hand-writing, so as to make it criminal, consists of three distinct branches, supported by three different sets of witnesses; and that each of these three several sets have given a very lame, doubtful and obscure evidence; but if their evidence had been ever so full and positive, yet I must beg leave to insist, that it is such as is in its nature dubious and uncertain, and therefore in a case of this consequence ought not to be relied on. This will appear still the plainer from the different opinions observable among the different witnesses, insomuch that I may well venture to say your lordships are as yet at a loss by whom these letters were wrote; but if you will have any regard to numbers, and to the nature and circumstances of the testimony given by those numbers, the evidence is much stronger, and more clear and convincing, that they were not wrote by Kelly, than that they were; and if they were not wrote by him, it will become your lordships to consider carefully what you are a-doing; for then the foun dation of this bill will be sapped, and of course the whole fabric must fall to the ground. But, my lords, supposing these letters were really the hand-writing of Kelly, that they were of that treasonable signification that the decypherers contend for, and that the names mentioned in them did not belong to real persons, but were cant names to denote the Pretender and his agents; I say, my Lords, supposing all this true of Kelly, how will it affect the bishop? Might not Kelly write these letters, and carry on this correspondence without the bishop's direction? Must the bishop answer for Kelly's crimes, because Kelly happens to be a nonjurer? or because he was employed to buy gloves and stockings for the bishop, must your lordships therefore infer that he was employed to write treason for him? Suppose Kelly had actually lived in the bishop's family as his secretary, have we not seen, not many years since, even a Jesuit a bishop's domestic without of fence? Give me leave, my Lords, to carry this point a little farther: Has any thing been offered to induce your lordships to believe that Kelly saw the bishop, or heard from him for several months before this correspondence began? Has any one word been said, or hint given, either from cant names or decyphered letters, or any otherwise howsoever, tending to that purpose? Nay, my Lords, have you not had as much evidence as the nature of the thing is capable of, that the bishop could not dictate, nor Kelly write those letters, at any time near the time of their date? And if they were dictated by the bishop, it must be about that time, because the circumstances mentioned in the letter would not suit him at any other time. And here, my Lords, it is proper to observe, that the managers for the bill, when they were to apply the circumstances of Jones and Illington in the letters to the bishop's case, they built the whole of their arguments upon the date of those letters; but when they saw that the bishop had fully proved that it was impossible he could dictate them at that time, why then truly they vary their charge, and say, that it was not his dictating the letters at that time, but his dictating the letters of that date that they contended for; and they tax the bishop with a partial and fallacious defence, for applying it to the time, and not to the fact. But, I think, with great submission, that the bishop has made a very just defence. I think he could not have made a better; and under the disadvantage of proving a negative, I think it was almost impossible he should have made one so good. For your lordships well remember, he was charged as the author of the letters signed Jones and Illington, because he was under the circumstances of Jones and Illington at the time of the date of those letters: But the bishop bath fully proved, that he could not be the author of them at that time; and if he were * The famous Jesuit La Pilionere, who made so great a figure, Anno 1717, in what was then called the Bangorian Controversy. |