526
Opinion of the Court
III
As mentioned earlier, Justice Chase and Wooddeson both cited several examples of ex post facto laws, and, in particular, cited the case of Sir John Fenwick as an example of the fourth category. To better understand the type of law that falls within that category, then, we turn to Fenwick's case for preliminary guidance.
Those who remained loyal to James II after he was deposed by King William III in the Revolution of 1688 thought their opportunity for restoration had arrived in 1695, following the death of Queen Mary. 9 T. Macaulay, History of England 31 (1899) (hereinafter Macaulay). Sir John Fenwick, along with other Jacobite plotters including George Porter and Cardell Goodman, began concocting their scheme in the spring of that year, and over the next several months the original circle of conspirators expanded in number. Id., at 32, 47-48, 109-110. Before the conspirators could carry out their machinations, however, three members of the group disclosed the plot to William. Id., at 122-125. One by one, the participants were arrested, tried, and convicted of treason. Id., at 127-142. Fenwick, though, remained in hiding while the rest of the cabal was brought to justice. During that time, the trials of his accomplices revealed that there were only two witnesses among them who could prove Fenwick's guilt, Porter and Goodman. Id., at 170- 171. As luck would have it, an act of Parliament proclaimed that two witnesses were necessary to convict a person of high treason. See An Act for Regulateing of Tryals in
(1829) (Johnson, J., concurring); Stoddart v. Smith, 5 Binn. 355, 370 (Pa. 1812) (Brackenridge, J.), was absent with respect to the four categories. Although Justice Chase's opinion may have somewhat dampened the appetite for further debate in the courts, that consideration would not necessarily have an effect on scholarly discourse, nor does it explain why judges would be reluctant to express criticism of the four categories, yet harbor no compunction when it came to criticizing the actual holding of the Court.
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