On the first of December the bill went through the earliest stage without a division.  Then Fenwick’s confession, which had, by the royal command, been laid on the table, was read; and then Marlborough stood up.  “Nobody can wonder,” he said, “that a man whose head is in danger should try to save himself by accusing others.  I assure Your Lordships that, since the accession of his present Majesty, I have had no intercourse with Sir John on any subject whatever; and this I declare on my word of honour."763 Marlborough’s assertion may have been true; but it was perfectly compatible with the truth of all that Fenwick had said.  Godolphin went further.  “I certainly did,” he said, “continue to the last in the service of King James and of his Queen.  I was esteemed by them both.  But I cannot think that a crime.  It is possible that they and those who are about them may imagine that I am still attached to their interest.  That I cannot help.  But it is utterly false that I have had any such dealings with the Court of Saint Germains as are described in the paper which Your Lordships have heard read."764

Fenwick was then brought in, and asked whether he had any further confession to make.  Several peers interrogated him, but to no purpose.  Monmouth, who could not believe that the papers which he had sent to Newgate had produced no effect, put, in a friendly and encouraging manner, several questions intended to bring out answers which would have been by no means agreeable to the accused Lords.  No such answer however was to be extracted from Fenwick.  Monmouth saw that his ingenious machinations had failed.  Enraged and disappointed, he suddenly turned round, and became more zealous for the bill than any other peer in the House.  Every body noticed the rapid change in his temper and manner; but that change was at first imputed merely to his well known levity.

On the eighth of December the bill was again taken into consideration; and on that day Fenwick, accompanied by his counsel, was in attendance.  But, before he was called in, a previous question was raised.  Several distinguished Tories, particularly Nottingham, Rochester, Normanby and Leeds, said that, in their opinion, it was idle to inquire whether the prisoner was guilty or not guilty, unless the House was of opinion that he was a person so formidable that, if guilty, he ought to be attainted by Act of Parliament.  They did not wish, they said, to hear any evidence.  For, even on the supposition that the evidence left no doubt of his criminality, they should still think it better to leave him unpunished than to make a law for punishing him.  The general sense, however, was decidedly for proceeding.765 The prisoner and his counsel were allowed another week to prepare themselves; and, at length, on the fifteenth of December, the struggle commenced in earnest.