Sir B. Shower. My lord, we will give you an account that he used to have a private lodg-sation. ing, and come in with his horse tired, and several other such things, as that he used to go out in disguises, and the like.

Mr. Phipps. My lord, I cannot imagine why a man that has been guilty of any such crimes, and is not taken, should be of greater credit than a man that has been taken and punished.

L. C. J. What is that you say, Mr. Phipps? Mr. Phipps. My lord, I say it is the crime that renders a man infamous, and I do not know why a man that has had the good fortune not to be taken and punished for great crimes by him committed, should be in a better condition as to the credit of his testimony, than one that is taken and undergoes the punishment of the law.

Sol. Gen. Mr. Charnock urged that as far as it would go, but we are obliged, it seems, to hear things that have been over-ruled over and over; but I desire to know of them, whether they can shew he has been guilty of a greater crime than he has confest himself

See Peake's Law of Evidence, chap. 3, Witnesses, sect. 2, art. General Character.

Mr. Webber. Indeed I do not, they were summoned to be here.

therefore, as Mr. Porter tells you, to determine that difficulty, there were several men sent, whereof he was one; Knightley another,

Sir B. Shower. Where is Black Will? Cryer. Black Will. (He appeared, and was and King a third, to view the ground on both a Moor.)

sides the water, and to make their report: the ground being viewed, and the report made to

L. C. J. Ask him if he be a Christian. Cryer. I have asked him, and he says he is some of their accomplices, who to receive it a Christian.

met at the Nag's- Head in Covent-Garden, which was about the tenth or twelfth of February last; it was then agreed that the king and his guards should be attacked on this side/ the water, about Turnham-Green.

Mr. Porter has told you, that at several meetings for the carrying on this design, the prisoner Mr. Rookwood was present, more particularly at the Globe Tavern in Hatton-garden, where were also sir George Barcley, Mr. Charnock, sir William Parkyns, himself, and others, and there they did enter into a consult how they might assassinate the king; and it being proposed, Mr. Rookwood did not like it, as Mr. Porter says, but said it was a desperate attempt; and thereupon sir George Barcley pulled out a scheme that he had, and shewed it at that time to Mr. Rookwood, and said, you are sent over from France, and are to obey my orders, and you are to command a party; and then Mr. Rookwood made an answer in French, 'There's an end of it,' which, as he says, im

Sir B. Shower. We submit it to your direc-
tion, how far this evidence will affect him;
there is nothing said, as we apprehend, that will
amount to treason; if the prisoner has a mind
to say any thing himself, we hope your lord-ports a consent.
ship will please to hear him.

L. C. J. Aye, if he will, let him.
Rookwood. My lord, Mr. Porter does not
say, that I consented to command a party.
L. C. J. Is that all you have to say? Then,
Gentlemen, will you sum up?

Mr. Conyers. My lord, we are agreed; we submit to the court on both sides.

L. C.J. Then, gentlemen of the jury, the prisoner at the bar, Mr. Rookwood, is indicted for high-treason, in compassing, imagining, and intending the death and destruction of the king, by a most barbarous and wicked assas sination; you have had an account of this design from two witnesses that have been produced; the one is captain Porter, the other is Mr. Harris, who swear they were both concerned as actors in it.

Then at another time, which was the Saturday morning the 15th of February, they met at captain Porter's lodging, and there was a discourse about going on to put the design in execution; and one Durant, one of the men that was to watch the king and the guards going out at Kensington, came in, and the question was, whether they should go that day upon the design? They had discourse about it, and Mr. Rookwood the prisoner was there present, and there did not appear any dissent in him to the prosecution of the design, but it seems it was readily agreed among them, to pursue it according to the former determination.

Then the next witness that is produced is Mr. Harris, who gives you a large account of the beginning of his knowledge, and of his Captain Porter tells you, about the latter end being concerned in this matter; he tells you of January, or the beginning of February last he was in France, and at the court of St. Gersir George Barcley came over into England mains, where the late king then was, and that from France; and there was a former design he spoke with him, and where was also coto murder the king; and after several meet- lonel Parker; and king James took notice of ings and conferences among the conspirators, him and of his faithful service, and told him, they came to a resolution that he should be as- he always designed him a kindness, and then sassinated; but which way to effect it, ad- had opportunity of doing it, and said he would mitted of a dispute among them; for the king send him over into England, where he should as you have heard, going frequently, about be subsisted, and directed him to obey the once a week, a hunting on the other side the orders of sir George Barcley; and there being water near Richmond, the design was first to one Hare by, who was to come over with him, assassinate him at Richmond Park, or there- king James gave them both names of disguise abouts, as he returned from hunting, and pre- which they were to go by in England, and, as paration was made accordingly; but that not it seems, others that came over did also assume; being so fully agreed upon, the conveniency of for Mr. Rookwood went by the name of Rothe place held still some debate; for some were berts, Harris was to go by the name of Jenof opinion, that it was better to make the at-kins, and Hare by the name of Gainey; they tempt on this side the water, than on the other; were directed to apply themselves to sir George

Barcley, and had directions how they should, find him, which were to go into Covent-garden, in the evening, upon a Monday or a Thursday and if they saw a person that had a white handkerchief hanging out of his pocket, they were to take notice of him to be sir George Barcley, and they had ten lewis d'ores a-piece for their journeys to carry them off; and you have heard from whom they had them; and they were told, that if at Calais they were kept longer than they expected, whereby their money was spent, care was taken that they should be supplied from the governor of Calais, the president there; and it seems Mr. Harris and Mr. Hare went together to Calais, and lay a considerable time for want of a wind, whereby their money fell short of defraying their expences; but they were afterwards supplied by the governor of Calais, according as was promised at St. Germains.

Gentlemen, he tells you, that after they came into England, the first time they went to seek sir George Barcley, was upon the Monday night, but they did not find him at that time; but afterwards they met with him, and Mr. Harris had subsistence-money from him, according to king James's promise, which was at the rate of 5s. a-day, when he had no horse, and afterwards when he had a horse, at 6s. a-day; this is the account he gives you how he came over, and of his journey and meeting with sir George Barcley.

Which shews not only his knowledge of the design, but his being engaged in the prosecution of it.

And then, Gentlemen, you are told further, That upon the going out upon Saturday the 22d, which was the second time it was to have been put in execution, there was a list of men that Mr. Rookwood gave to Mr. Harris of several names that he has mentioned to you; he says, Mr. Rookwood's name was at the top, as one that was to command the party, and the name he went by was Roberts; and there was Harris's counterfeit name, which was Jenkins; and Hare's counterfeit name, which was Guiney; and they were to make ready to go to Turnham-Green. He told him, there was a list, and that he and Harris was to be of his party, that he was to attack the prince of Orange, and that Mr. Harris should be his aid de camp.

Gentlemen, I forgot to tell you, That between the first Saturday and the second, Mr. Harris, Mr. Rookwood, and Mr. Lowick, walking in Red-Lyon-Fields, and there in discourse among themselves, Mr. Harris and Mr. Rookwood did express themselves to be much concerned that they were to be employed upon such a design as this was, which they owned to be very barbarous; but Mr. Rookwood and Lowick said, They were under command, and must obey orders, though Mr. Rookwood did not like the design they were engaged in.

Gentlemen, they have told you of horses that were placed at Somerset-house in a stable there, under the care of Mr. Lewis, my lord Feversham's gentleman of the horse, about six or seven horses, and those six horses that were there at that time were afterwards taken away;

And now he comes to speak particularly concerning the prisoner at the bar, Mr. Rookwood: He tells you, that on Saturday morning the 15th of February, the first day when this assassination was designed to be committed, he went to the lodging of one Burk, where Mr. Rook-but that is only a circumstance. wood was, with others, and he found them all in a great disorder; and thereupon he asked them, what was the matter, and what they were going to do? And Rookwood bid him go to one Counter, and he should know of him what was the matter: accordingly he went to his lodging, and Counter told him and those who were with him, that they must get ready to go to Turnham-Green; and at the same time and place he met with sir George Barcley, and after some discourse of attacking the coach, sir George Barcley at the first said, they were his janizaries; and afterwards going out, he came in again and said, they were men of honour, and that they were to go abroad to attack the prince of Orange,

So that, Gentlemen, this is now the sum and substance of this evidence that has been given you, as far as it relates to the prisoner: his counsel in his defence have insisted upon several things; in the first place, though it was last mentioned in time, yet it ought to have the first consideration; the counsel for the prisoner bave endeavoured to take off the credit of Mr. Porter, and have opened indeed very great crimes that he should be guilty of, which must render him a person not to be believed, but they have not proved any thing; no witness that they have called against Mr. Porter says the least against him to invalidate his testimony, or to induce you to disbelieve what he has said.

L. C. J. Never talk of Cranburne, we have not him before us now; but what do you say to this of the list given by Rookwood to Harris? Sir B. Shower. My Lord, we say this is not evidence of an overt-act, according to this act of parliament; which says, no evidence shall be given of any overt-act, that is not expressly alledged in the indictment; now the indictment says, they did agree that forty horsemen armed, of which the four named were to be four, and every one undertook to be one, who should lie in wait to set upon the king in his coach, and a competent number should set upon the guards; and then it says, in order to fulfil this, they did prepare horses and arms, and one of them by the consent of all the rest did carry forward and backward a list, that is, Cranburne; and that particular list is a particular overt-act alledged in the indictment; which makes it plain, they thought it necessary to be particularly alledged by this act of parliament, or they could not give any evidence of it; now the list that evidence is given of, is supposed to be delivered by the prisoner to Harris. Now first we say, it is not evidence that forty should do it, for they may do it without a list; and next, it is not evidence of the list that they have mentioned, for that is alledged to be carried about by Cranburne; and as the prisoner himself has observed, this list given to Harris is not in the indictment, and therefore no evidence can be given of it.

L. C. J. They ask you, what this giving this list does prove.

Att. Gen. His agreeing at that meeting to the conspiracy, and the execution of it, by giving that list of the names of them that were to be of his party, and his own name as commander of that party, this he gives to one that was to be of the party, and particularly was to be his aid du camp, in order to get them ready for the execution; is not this an evidence of the agreement, which is the overt-act? No man in the world can be convicted of treason, if this doctrine be true.

Sol. Gen. My lord, they have not expressed something in the indictment that has been read, which will make it plain that this is the most proper evidence of the overt-act laid in the indictment. The indictment says, they agreed there should be forty men or thereabouts armed, of which a certain number should make an assault upon the king's coach, while another part should set upon the guards: Now the proof we make is, that Mr. Rookwood the pri soner was to command a party that was to set upon the guards; and in order to it, he gives a list of his men to Harris, who was to be his aid du camp, and bids him get those men ready; and this was upon the day that this matter was to be acted: So that it proves very plainly that overt-act that we suggest in the indictment, that a certain number of those men were to assault the king's person, and another Mr. Conyers. It is an evidence of that overt- the guards. And therefore they needed not to act which is expressly alledged in the indict-have interrupted your lordship; for this list ment, that they met together to consult how to effect this treason.

that Harris speaks of is a very good proof of the overt-act that is laid in the indictment.

Mr. Cowper. My lord, we are in a very L. C. J. Then, gentlemen, as to this matter strange case here, if we be not very proper in which they have objected, that this list given this part of our evidence; the overt-act laid is, on the day of the intended assassination, ought That the prisoner met together with others to not to be allowed as evidence to prove the treaconsult how to assassinate the king, and there son, because it is not specially laid in the inthe prisoner among the rest did agree it should dictment, but is by the late act of parliament be done so and so. It is admitted the prisoner excluded from being proved to convict the priwas there; but, say they, if you only prove soner: Now though the act doth exclude the that he sate by while there was a general dis-giving in evidence of any overt-act that is not course of such a matter, but do not prove that he said or did any thing expressing his assent, that will not amount to a proof of the overt-act laid; and yet, if we go about to prove further, any act done that manifests his assent, then they say you go too far, and prove an overt-act that is not mentioned in the indictment. Thus they grant, the agreement is a sufficient overt-act, but object, that being present barely is not a sufficient proof of his agreement; then when we go to make proof of any thing that is a sufficient proof of his agreement, they tell us it is not proper upon this act of parliament, because not laid in the indictment, though his agreement be laid in the indictment: And so they would amuse us, rather than make any solid objection to our evidence. This doctrine is certainly very odd, my lord, and we doubt not will have little weight with the court or the jury.

Att. Gen. According to this doctrine, all the evidence must be put in the indictment.

laid in the indictment, yet it doth not exclude such evidence as is proper and fit to prove that overt act that is laid in the indictment. Therefore the question is, Whether this giving of the list does not prove some overt-act that is alledged in the indictment? There is in the indictment an agreement laid to kill the king; and if that be proved, that is an overt-act of this treason. Now when the consent and agreement of Mr. Rookwood to that design is proved, surely the proof of his giving a list of men, is a further proof that he did agree to it, and then it is verv proper to be given in evidence; for if by the new statute no one act can be given in evidence to prove another, then must not only the overt-act, but also the evidence of that act be expressed in the indictment.

Gentlemen, You have heard the witnesses what they say concerning this matter. In the first place, if you do believe that there was such consults and meetings, where this intended as sassination of the king was debated and resolv.