On this day: 25 November 1696, the passing of the bill of attainder against the Jacobite Sir John Fenwick
On 25 November 1696 the House of Commons, after a bitter series of debates, finally passed a bill that would result in the execution of the Northumbrian baronet Sir John Fenwick, for treason in January 1697 – a death that was seen by many as politically-driven murder.
Fenwick’s case was one of the consequences of the deposition of the Catholic James II and his replacement by the Protestant Dutch prince William III and his wife Mary (James’s daughter) in the Revolution of 1688. Over the next decade, English politics was overshadowed by James’s efforts, in collaboration with France’s King Louis XIV, to retrieve his throne. He was assisted by a number of English people, whose religious and political attitudes were revolted by the idea of the removal of a monarch, anointed by God. Many more who accepted the Revolution were nevertheless troubled by its implications for the constitution and government of the country, and although political divisions in the 1690s were far less clear than the two- or three-party divisions we know now, there was a broad gulf between those who believed that the Revolution was to be celebrated as a means of preserving the constitution and religion of England (‘Whigs’), and those who worried that it might threaten the survival of the Church of England and the integrity of the English monarchy (‘Tories’).
Fenwick – a man of whom it was once said that ‘his temper was good; but his headpiece was none of the best’ – was undoubtedly one of the Jacobite conspirators, although whether he posed a real threat to William III's regime was another matter. An officer in the Flanders campaigns of the 1670s, Fenwick had singularly failed to impress the then Prince William of Orange. At the Revolution with his career prospects blighted, he had resigned his commission in the army. He, with his wife (nicknamed ‘Lady Addleplot’ by the playwright Thomas D’Urfey) was involved as a second rank figure in various conspiracies in the early 1690s, from which he gained some unreliable knowledge about the contacts between James’s court and highly placed figures in William’s government. When a plot to assassinate William III was discovered in February 1696, Fenwick, like other Jacobites, went into hiding. Though he had opposed the assassination plot, there was enough in the evidence of two of those involved who had turned king’s evidence – George Porter and Cardell Goodman – to implicate him in a conspiracy to assist a French invasion. Having failed to bribe Porter to leave the country, Fenwick was captured in June 1696 trying to escape.
Fenwick offered to expose his fellow conspirators. He made a string of unsupported allegations about key members of the government and their contacts with the Jacobite court. William, abroad on the battlefield, gave the allegations little credence and was sure that Fenwick was simply playing for time, but back home the duke of Devonshire was shocked – and probably fearful that the king would blame him if the allegations proved to be true. His indecision allowed Fenwick’s trial to be repeatedly delayed - and allowed Goodman to disappear. There was now only one witness to Fenwick’s alleged treason; the law required two.
Under pressure from the king and with London full of wild speculation about whom Fenwick had implicated the government decided to deal with Fenwick’s claims head-on. On 6 November Admiral Russell, one of those named by Fenwick, with the permission of the king and backed by carefully primed members of the Whig party’s Rose Club, attempted to vindicate himself by laying Fenwick's allegations before the Commons. They then introduced into the Commons a bill of attainder – a device that meant Fenwick could be declared guilty and sentenced to death by Act of Parliament, without the necessity to provide the two witnesses. The House accepted that Fenwick’s claims had little truth in them. Nevertheless, there was profound unease about proceedings that aped a trial but lacked any legal or evidential safeguards. Those doubts were reflected in the division lobbies: a majority of 92 for the first reading dwindled steadily. On the third reading, held on 25 November 1696, the majority was no more than 33: 189 votes to 156.
There is unfortunately no good account of the debates in the Commons– as there was no formal published report until very much later, we have to rely on informal notes or reports of debates in this period, and sadly none survive of the Fenwick debates. But even the terse official record of the House’s decisions, the Journal, shows that it was a stormy debate, with the House deciding after a vote to lock the doors to prevent anyone else entering. In the vote, Tories like Edward Jones and Fenwick’s fellow Northumbrian William Forster might have been expected to oppose the attainder; but so too did a number of Whigs, such as Ralph Warton and Nathaniel Bond. Even Lord Wharton (regarded by Tories as close to the devil incarnate) interpreted what happened in the Commons as no more than a pretence at 'fair dealing'.
We know much more about what happened subsequently in the Lords, where, with the Christmas recess looming, Whig anxiety about the bill became increasingly obvious. In three days’ debate on the second reading of the bill in December the House recorded probably the highest attendances at any time between 1660 and 1714. Many peers had attended the debates in the Commons and were already familiar with the issues. Court Whigs argued that punishing Fenwick was a matter of necessity whilst Tories recited the objections to accepting a lower standard of proof than in a court of law, argued that allowing such a bill to start in the Commons undermined the Lords’ right to be the highest court in the land, and derided the government for being in 'a very tottering condition, when for its preservation, it's forced to leap over all our laws and fly to so extraordinary a method to take away the life of one poor man.' The third reading was carried by just seven votes as even reliable government supporters deserted the cause. But the bill received the royal assent on 11 January. The king allowed Fenwick to be beheaded rather than suffer the ignominy of being hanged, and the sentence was carried out on Tower Hill on 28 January 1697.