In the summer of 1696, Sir John Fenwick was apprehended in Kent whilst attempting to take ship for France. Some months prior, William III had escaped an assassination plot; yet the historian Paul Seaward carefully distinguishes that design from another enterprise in which Fenwick stood implicated: an undertaking intended to support an armed French descent upon the realm. The text of the Act of Attainder recites that he was indicted on the 28th of May, upon the oaths of George Porter and Cardell Goodman, for having consorted in assemblies convened to dispatch Robert Charnock unto the late King James II and to invite an invasion of the kingdom. This formal statutory language sets forth the indictment retained by Parliament; it does not constitute the dispassionate record of an adversarial trial.
In the letter addressed to his wife following his capture, Fenwick deemed his cause desperate. Naught remained to him, he wrote, save the intercession of potent patrons, or, failing that, the bribery of certain jurymen who might hold out until their fellows yielded. Yet such an expedient required that the letter reach Lady Mary unread; it was intercepted upon the bearer. Seaward observes that Fenwick had gone into hiding upon the discovery of the assassination design and was taken in June during his flight. The letter, as recorded by Borrow, instantly exposes the ground upon which the drama was to unfold: not merely what Fenwick had done, but the legal means by which his guilt could be established.
Brought for his first examination before the Lords Justices, he made a general denial. Confronted with the captured letter, he was struck dumb with confusion. He subsequently sought an assurance of his life in return for disclosures, entering into private overtures with the Duke of Devonshire. The King, however, refused all conditional pledges, insisting upon reserving to himself the right to gauge the truth and gravity of whatever intelligence might be tendered.
Fenwick thereupon elected to cast himself upon the royal clemency. In a first memorial, he outlined various Jacobite deliberations, yet took care to spare the confederates of his own circle. He asserted that James II and his emissaries had assured them that the Earls of Shrewsbury and Marlborough, Lord Godolphin, and Admiral Russell had reconciled themselves with the exiled monarch and were henceforth labouring in his interest. Borrow regards these imputations as utterly destitute of proof and calculated primarily to sow discord among the King’s ministers. Fenwick adduced neither circumstance nor supporting evidence in their favour.
The monarch’s reply offered no such security as Fenwick had sought. An order was issued directing his trial unless further disclosures were forthcoming. Fenwick petitioned for a renewed examination upon oath before the Lords Justices. Therein he admitted to communications passed between the Jacobites, King James, and the Court of Versailles. He recounted that the Earl of Aylesbury had ostensibly waited upon the French King, proposing an expeditionary force of thirty thousand men, accompanied by the assurance that a substantial concourse of gentlemen and horse would join the standard upon landing. In this wise does Fenwick’s account of the negotiations stand recorded in Borrow’s chronicle.
These disclosures likewise laid bare the deep fractures within the Jacobite movement. Borrow draws the distinction between the “compounders,” who sought from James II solemn covenants securing the established religion and the liberties of the realm, and those termed the “non-compounders,” who stood ready to restore him without terms. Fenwick rehearsed this dispute, yet, according to the narrative, continued to shield his immediate confederates, naming chiefly those already compromised by existing depositions or individuals sufficiently removed from immediate jeopardy.
The contest over the witnesses had commenced even before Fenwick’s apprehension, according to Seaward. Borrow details these maneuvers through the agency of Lady Mary: Fenwick’s devoted wife approached Porter, tendering him an immediate purse of money and an annuity for life should he consent to quit the realm. Porter appeared to entertain the overture, but laid a counter-snare. He convened the intermediaries, Lady Mary among them, at the appointed rendezvous for the delivery of the funds. Hidden witnesses overheard the parley; upon a preconcerted signal, they burst in and seized the confederates together with the money. Borrow records that an information was exhibited, and those implicated were duly convicted and punished.
The second witness, Goodman, was assailed first in his reputation. His course of life, Borrow observes, supplied ample matter for defamation. This expedient proving insufficient, he was successfully prevailed upon to withdraw beyond the seas. When the final directions for the trial were drawn, the requisite two witnesses to the treason were no longer to be had. Under the ordinary rules of law, Borrow remarks, Fenwick must have been acquitted. The matter, however, was reserved for the judgment of Parliament.
The King transmitted the two papers furnished by Fenwick to the House of Commons. Brought to the bar, Fenwick declined to offer any further elucidation of their contents. The Commons voted the allegations false and scandalous, and straightway ordered a Bill of Attainder to be brought in, thereby securing his condemnation by legislative act rather than through the ordinary course of the common-law courts. The statute, as enacted, recited that Porter and Goodman had previously made oath against him, and that Goodman had absconded during the delays granted unto Fenwick to render the promised disclosures. It further recited that Fenwick, having promised a candid confession, had produced mere hearsay papers designed to cast unjust suspicion upon officers of the Crown. Such were henceforth the formal grounds of his condemnation.
Borrow dwells upon the vehement opposition encountered at every stage of the bill. Seaward’s study confirms the bitter controversy: the proceeding by attainder was challenged as enabling Parliament to inflict capital punishment while stripping away the evidentiary safeguards of an ordinary trial. In the House of Lords, the bill passed by a slender majority of a mere seven votes. The royal assent was signified on the 11th of January 1697.
Fenwick then perceived that all hope of life was extinguished. He requested the spiritual attendance of a non-juring prelate, which was denied him; Bishop Burnet attended him in his final hours. Fenwick was beheaded on Tower Hill on the 28th of January 1697. This date, established by Seaward and supported by official archival records, corrects the 23rd of January printed in Borrow’s text. The chronicler assigns him fifty-two years of age. He was laid to rest near the altar of St Martin-in-the-Fields beside his three sons. Lady Mary, eldest daughter to the Earl of Carlisle, caused a monument to his memory to be erected in York Minster. The final portrait offered by Borrow is one of conjugal devotion: no shift nor artifice, he writes, was left untried by her in the effort to preserve his life.