Both were gentlemen of honourable descent; both were distinguished by their fine persons and graceful manners; both were renowned for eloquence; and both loved learning and learned men. It may be added that both had early in life been noted for prodigality and love of pleasure. Dissipation had made them poor;poverty had made them industrious; and though they were still, as age is reckoned at the Inns of Court, very young men, Harcourt only thirty-six, Cowper only thirty-two, they already had the first practice at the bar. They were destined to rise still higher, to be the bearers of the great seal of the realm, and the founders of patrician houses. In politics they were diametrically opposed to each other. Harcourt had seen the Revolution with disgust, had not chosen to sit in the Convention, had with difficulty reconciled his conscience to the oaths, and had tardily and unwillingly signed the Association. Cowper had been in arms for the Prince of Orange and a free Parliament, and had, in the short and tumultuary campaign which preceded the flight of James, distinguished himself by intelligence and courage. Since Somers had been removed to the Woolsack, the law officers of the Crown had not made a very distinguished figure in the Lower House, or indeed any where else; and their deficiencies had been more than once supplied by Cowper. His skill had, at the trial of Parkyns, recovered the verdict which the mismanagement of the Solicitor General had, for a moment, put in jeopardy. He had been chosen member for Hertford at the general election of 1695, and had scarcely taken his seat when he attained a high place among parliamentary speakers. Chesterfield many years later, in one of his letters to his son, described Cowper as an orator who never spoke without applause, but who reasoned feebly, and who owed the influence which he long exercised over great assemblies to the singular charm of his style, his voice and his action.
Chesterfield was, beyond all doubt, intellectually qualified to form a correct judgment on such a subject. But it must be remembered that the object of his letters was to exalt good taste and politeness in opposition to much higher qualities. He therefore constantly and systematically attributed the success of the most eminent persons of his age to their superiority, not in solid abilities and acquirements, but in superficial graces of diction and manner. He represented even Marlborough as a man of very ordinary capacity, who, solely because he was extremely well bred and well spoken, had risen from poverty and obscurity to the height of power and glory. It may confidently be pronounced that both to Marlborough and to Cowper Chesterfield was unjust. The general who saved the Empire and conquered the Low Countries was assuredly something more than a fine gentleman; and the judge who presided during nine years in the Court of Chancery with the approbation of all parties must have been something more than a fine declaimer.
Whoever attentively and impartially studies the report of the debates will be of opinion that, on many points which were discussed at great length and with great animation, the Whigs had a decided superiority in argument, but that on the main question the Tories were in the right.
It was true that the crime of high treason was brought home to Fenwick by proofs which could leave no doubt on the mind of any man of common sense, and would have been brought home to him according to the strict rules of law, if he had not, by committing another crime, eluded the justice of the ordinary tribunals. It was true that he had, in the very act of professing repentance and imploring mercy, added a new offence to his former offences, that, while pretending to make a perfectly ingenuous confession, he had, with cunning malice, concealed every thing which it was for the interest of the government that he should divulge, and proclaimed every thing which it was for the interest of the government to bury in silence. It was a great evil that he should be beyond the reach of punishment; it was plain that he could be reached only by a bill of pains and penalties; and it could not be denied, either that many such bills had passed, or that no such bill had ever passed in a clearer case of guilt or after a fairer hearing.
All these propositions the Whigs seem to have fully established.
They had also a decided advantage in the dispute about the rule which requires two witnesses in cases of high treason. The truth is that the rule is absurd. It is impossible to understand why the evidence which would be sufficient to prove that a man has fired at one of his fellow subjects should not be sufficient to prove that he has fired at his Sovereign. It can by no means be laid down as a general maxim that the assertion of two witnesses is more convincing to the mind than the assertion of one witness.
The story told by one witness may be in itself probable. The story told by two witnesses may be extravagant. The story told by one witness may be uncontradicted. The story told by two witnesses may be contradicted by four witnesses. The story told by one witness may be corroborated by a crowd of circumstances.
The story told by two witnesses may have no such corroboration.
The one witness may be Tillotson or Ken. The two witnesses may be Oates and Bedloe.
The chiefs of the Tory party, however, vehemently maintained that the law which required two witnesses was of universal and eternal obligation, part of the law of nature, part of the law of God.
