should have begged the king's pardon at St. Germains, and not have come over hither:' and said I, This is very fine, we have served 'to a very good purpose, to be sent over upon 'such an errand and account.' After this Mr. Rookwood, and Mr. Lowick, and I, had a meeting at Red Lyon fields, where we did discourse about the matter. I did often declare against it, that it was so barbarous a thing, that no man of honour almost would be guilty of it; but major Lowick answered, That we were to obey orders; for sure sir George Barcley would not undertake a thing of that nature without orders.

Att. Gen. Pray what said Mr. Rookwood? Harris. He owned it was a barbarous thing; but he was sent over to obey sir George Barcley's orders, which he had several times declared he was resolved to do; upon that we parted: So afterwards I came to Mr. Rookwood's lodging; it was the Saturday morning I came to him, and so went to sir George Barcley's; while he was there, Mr. Rookwood gave me a note, naming so many names, particularly Mr. Hungate, Mr. Hanford, Mr. Hare, and his own name at top, not the name that he is arraigned by here; but a sham name that he had, as the rest of us all had sham names, which at that time we went by.

L. Č. J. What was your name?
Harris. My name is Jenkins.

L. C. J. Who gave you that name? Harris. King James at St. Germains, and -be gave Mr. Hare the name of Guiney, and Mr. Rookwood's name was Roberts. King James told us in his bed chamber, we were to go by those names.

Att. Gen. Pray, Sir, what did Rookwood say to you, when he gave you that list?

Harris. He told me, he was to go to Turnham green, and I was to go along with him, and says he to me smiling, You shall be my aid de camp; and get the rest of the gentlemen ready and accordingly I went to look for several of the persons-particularly for Mr. Blackburne: when I came back again, I found him lying on his bed, and that sir George Barcley had told him the prince of Orange did not go out that day; and from thence we went to dinner, where major Lowick dined with us, and Mr. Bernarde and major Lowick seeing me in a heat, asked me, Why I was in such a sweat? I told him I were getting those men ready for Mr. Rookwood, who had made me his aid de camp: says major Lowick to me, You may very well do it, for you have six shillings a-day allowed you, and I have nothing; I bring two men at my own charge. Said I, Major Lowick, I wonder you do not apply yourself to sir George Barcley, and then, I believe, you may be subsisted too. He answered me, He did not think it worth the while to trouble him, since he had never spoke to him of it before: and Rookwood, and Bernarde, and Lowick, and myself, several times met in Red-Lyon-fields, and talked of attacking the prince of Orange.

Att. Gen. Who did? Harris. Rookwood, Bernarde, Lowick and myself.

Att. Gen. Pray, Sir, let me ask you one one question. Where was your horse at first? Harris. At first it was at my lord Feversham's stables, as they told me, in SomersetHouse.

Att. Gen. Where were the other persons horses?

Hurris. There was Mr. Hungate's and Mr. Hare's horses in the same place, at the same time, as they told me.

Att. Gen. How came you by your horse

there?

Harris. Major Holmes did deliver my borse and committed it to my care, and I carried it thence to another place.

Att. Gen. Did you observe there was any more horses there?

Harris. I believe there was five or six, as near as I can guess.

Att. Gen. Do you know where Rookwood was to have his horse?

Harris. He had a horse; but whence he had it I do not know.

Att. Gen. Had you any arms delivered you?

Harris. Yes, I had by capt. Counter.

Mr. Conyers. Were you at no other place together that Saturday night, the 22d of February, because you say you dined together? Harris. Yes, we were at the Bear tavern. Mr. Conyers. What discourse passed between you there?

Harris. They were talking about the assassination; but what any particular person said, I cannot tell.

Mr. Conyers. Pray who were there?

Harris. There was Mr. Knightly, captain Rookwood, and M. King; and Knightly went out, and came in again, and declared, we must have a great deal of care of ourselves or we should be taken up: and he whispered at first, and afterwards I asked him what it was; and he told me, and said, We must have a care of ourselves.' Says Mr. King, staring this way with his eyes, Surely God Almighty is on our side;' and so we parted.

L. C. J. When was this?

Harris. This was the night of Saturday the 22d, when it was discovered; for some of them were taken up the next day.

Att. Gen. Was Rookwood there at that time at the Bear tavern?

Harris. I cannot positively say whether he was or not.

Att. Gen. What discourse had you there? Harris. We talked of assassinating the king; but what it was in particular, 1 cannot tell.

L. C. J. Was Rookwood there?

Harris. Yes, I believe he was; but I cannot positively say.

L. C. J. You say it was the last Saturday, that the king was to go abroad, that you apprehended you were discovered?

Harris. Yes, we apprehended we were discovered before that; for Mr. Lowick told me that three or four days before, in that week, that his name, and one Harrison's, were given into the council, and another, and another, two or three of them, as he told me ; 1 think three or four; and upon that account major Lowick went from his lodging, and did not lie at his lodging the night before; and I came to major Lowick, and he told me the same thing at the King's-arms tavern.

Alt. Gen. Can you remember what discourse you had that Saturday night?

Mr. Cowper. You say that on Saturday the 22d, Mr. Rookwood gave you the list.

Harris. I do not say it was the 22d, for I cannot swear to the day of the month; but it was the second Saturday that we were to have gone about this business.

Mr. Cowper. You say he gave you a list of names: pray when he gave you that list, what discourse happened in the room just before, or after the giving of the list?

Harris, Sir, I think I told the court that be

fore.

Mr. Cowper. Sir, I desire you would repeat it.

Harris. My lord, I humbly desire to know whether I am to answer that gentleman that question?

L. C. J. Yes, you are to answer, being upon your oath, and to tell the whole truth.

Mr. Cowper. I asked him the question so fairly, what discourse introduced the giving of the list, and what followed upon it, that I perceive this gentleman does not know which

side I am of.

Harris. Mr. Rookwood said we were to go to Turnham green; and he told me, that I was to be one of his party, that we were to attack the Prince of Orange.

L. C. J. You say you were to be one of his party; pray was it there that he told you, you should be his aid de camp?

Harris. Yes, he did tell me I was to be his aid de camp.

Mr. Phipps. Whose hand writing was that list?

Harris. I cannot tell, I had it from that gentleman.

Mr. Phipps. But whose writing was it? Harris. Indeed I know not his band-writing, and therefore cannot tell whose it was: he is for his life, but I believe he cannot deny any thing that I have said, I suppose not: 1 should be very sorry to accuse Mr. Rookwood of any thing that was not true.

Mr. Phipps. Pray whose names were in that list?

Harris. I have mentioned Mr. Hare, Mr. Hanford, Mr. Blackburne, myself, and you, Mr. Rookwood, had your own name at top. Rookwood. What is that Blackburne? Harris. He is a Lancashire man. Rookwood. It is a very strange thing I should give you a list with a man's name that I do not know; I declare it, I know no such person.

Rookwood. But you that were to be an evidence ought to have kept it to justify your evi

dence.

Harris. Truly I did not intend to have been an evidence at that time.

Att. Gen. If they will ask him any questions, let them.

Sir B. Shower. No, indeed, I will ask him noquestions.

Att. Gen. Then, my lord, we have auother piece of evidence which we would offer to your lordship, which is not direct evidence against the prisoner, but only to prove a circumstance or two of what has already been sworn: we do acknowledge, my lord, it does not affect Mr. Rookwood, but only to strengthen and confirm what they have sworn.

Sir B. Shower. With submission, we hope it will not be evidence fit to be given as to the prisoner at all; for because a man may swear true in the particular circumstance of a thing, that therefore he swears true what he swears against the prisoner, I think is no consequence in the world.

L. C. J. It is a thing distinct and foreign to the matter, as to Mr. Rookwood.

Att. Gen. My lord, we do not say it directly affects Mr. Rookwood; but when your lordship has heard it, we shall submit it to you, how far it confirms even the evidence given against him.

;

Mr. Conyers. My lord, we say the prisoner was to have his horse from Somerset-house and that there were horses placed there for that purpose we are going to prove.

Att. Gen. My lord, it is one entire conspiracy, in which every one had his part; one was to have his horses and his party in one place, and another in another: Now that there were at such time such horses at Somersethouse, and those horses were delivered out from Somerset-house, is certainly a confirmation of the truth of what the witnesses have said.

L. C. J. It is so. If that be it you offer, it is very material.

Mr. Conyers. We shall prove, That upon the disappointment on the first Saturday, the 15th of February, they were to be ready against the 22d; and you will hear how the horses were disposed of in the mean time. Call Chamberlain, Maskel, and Allen.

Att. Gen. Call any of them, I believe it is enough.

(Mr. Chamberlain appeared and was sworn.)

Att. Gen. Pray will you give my lord and the jury au account what you know of any horses that were brought to Somerset-house about February last, and how long they stayed there?

Att. Gen. What month was it in?

Chamberlain. I think it was much about the latter end of February, to the best of my remembrance.

Att. Gen. How long was it before the plot was discovered?

Chamberlain. It was about a week, or a small matter, before the plot was discovered, to the best of my knowledge.

Att. Gen. How long staid the horses there at Somerset-house?

Chamberlain. Three of them staid a night or two; but the other three of them about a matter of a week or ten days.

Att. Gen. Who owned those horses? Chamberlain. They were sent in in Mr. Lewis's name; but who owned them 1 cannot tell indeed.

Mr. Conyers. Then swear John Allen. [Who was sworn.] Pray tell my lords and the jury what you know concerning any horses about the time of the breaking out of the plot.

Att. Gen. We mean in Somerset-house stable.

Allen. There was seven horses came in. Mr. Conyers. Who brought them? Allen. There was six in the first place; one came in afterwards in the evening.

Mr. Conyers. By whose order were they brought there?

Allen. By Mr. Lewis's order.

Att. Gen. How long did they stay there? Allen. Some of them staid there several days; three of them went away the next day, as I think,

Mr. Conyers. Do you remember about what time those horses were brought thither?

Allen. They were brought there, 1 believe, about seven or eight days before the plot broke

out.

Att. Gen. My lord, we only call these witnesses to confirm the testimony of the others, that there were such horses there at that time, and for the present we rest it here.

L. C.J. Then, gentlemen, what say you to it for the prisoner?

Sir B. Shower. If your lordship please, we are of counsel for the prisoner; and that which we are to insist upon, is this, which we submit to your lordships' judgment: In the first place,

whether here be two witnesses against the pri soner to prove this treason, according to the statute of Edw. 6, which requires two witnesses in High-treason, and lawful ones; but that in the first place we say, there are not two witnesses at all, at least not to any overt-act that is laid in this indictment. As to what captain Porter says of what passed between him and Durance, the dialogue between them where Rookwood was present, we are in your lordship's direction; and we doubt not but the jury will take it into their consideration, how far that affects the prisoner; that he shall not be concerned in any transaction between Mr. Porter and any other persons; none of their declarations, none of their treasonable practices, can be imputed to or affect him in any way whatsoever. Now all that captain Porter says of Mr. Rookwood is, that he was once at the Globe tavern, and there was a discourse about this matter; and then he tells your lordship of a dialogue between him and Durance, and an account of what passed between them ; but be does not say any thing of Mr. Rookwood being any ways concerned in the matter, but only that he dropped this expression, it was a desperate adventure, a dangerous enterprise, and he seemed against it; but in the end he concluded with something in French, which what they are, and what they mean, we must submit to your lordship and the jury; he interprets it, when sir George Barcley said he must have a share in it, then Rookwood replied, There is an end of it

But there is not one word of agreement sworn to, that Mr. Rookwood spoke to shew his consent. There is but one time more that Mr. Porter swears to, about the prisoner at the bar, and that is, at his lodgings in LittleRider-street; for as to the other consults, Mr. Rookwood was not present there; It seems there was a discourse about the affair, but that Kookwood said nothing, but went away; there was not so much as the least intimation of an agreement to any such design, or approbation of what was agitated in the company; and we insist upon it as to this in point of law, that it amounts to no more than misprision of treason at most. My lord, I will not now contend about notions, nor will I argue whether consulting and agreeing be evidence of an overtact; I submit to your lordship's directions, notwithstanding the variety and difference of opinions that have been.

L. C. J. Sir Bartholomew Shower, I know not what variety of opinions you mean; there have been some discourses in pamphlets, 1 agree; but it was always taken and held for law, that consulting and agreeing was an overt> act.

Sir B. Shower. Here is no evidence of any agreement.

L. C. J. Pray let us hear what you say to that.

Sir B. Shower. It is not the being present where traitors do consult and conspire the death of the king, unless they actually agree; nor is it evidence sufficient to guide or prevail

upon a jury's conscience to affirm upon their oaths, that such a one is guilty of bigh treason, because such a one was there, and said nothing at all; for the not discovering afterwards, nor accusing, is no evidence at all against Mr. Rookwood. As to Mr. Harris, he gives you an account of a great deal that does not affect Mr. Rookwood, neither all that passed at St. Germains, nor in their journey into England; for all that may be true, and yet the prisoner no way concerned in it. As to what he affirms of the prisoner, we shall submit it to your consideration: what it amounts to, and all that his deposition comes up to, is, that Mr. Rookwood complained that he was to obey implicitly sir George Barcley's orders; and Ilarris gives an account but of one particular time that Mr. Rookwood undertook, or did agree to be concerned in this matter; it was but once, and that was, when he gave him the note of those that were to go to Turnham-Green, and that he was to be his aid-de-camp: and as to that, we shall give you an account by witnesses whom we shall call, that these two witnesses ought not to be believed as to what they have sworn, though they do not come up to make two witnesses according to law upon this indictment. What they have said as to this man, is not credible, though they may speak true as to others; and no doubt there was a barbarous conspiracy; it appears there was such, beyond all exception and contradiction; and the persons that have been condemned as conspirators have acknowledged it: but, my lord, that which is now before your lordship and the jury is, to enquire whether the prisoner is concerned in this affair at all, and how far; and we hope the jury will be of opinion he is not concerned. The heinousness of the crime, and the aggravations of it, being to be abhorred by all mankind, we think ought not to sway with the jury, nor influence their judgments to believe a witness ever the sooner in accusing any other person; it ought rather to have a contrary allay; for the greater the crime is, and the farther off from having any tolerable opinion in the world, they ought to expect the greater proof; and no one is to be presumed guilty of such an act, without very sufficient evidence of it; and the greater the crime, the proof ought to be the more positive and undeniable. It is not their being plainly positive that is sufficient, but whether it is such that is good in law; and about that we are sure your lordship will give true directions in point of law: and whether the witnesses be credible or no, must be submitted and left to the jury, after we have called some witnesses, who will give you an account of their reputation.

Mr. Phipps. My lord, we humbly insist there are not two witnesses, such as the law requires, to prove the charge upon this indictment against the prisoner: the two overt acts that touch Mr. Rookwood are, first, consulting and agreeing how to kill the king; the other is, the finding arms and horses for that purpose.

But as to this latter, the finding arms and horses, there is not one evidence that comes up to it: and as to the former, the consultations, whether there be sufficient evidence that comes up to that, is very much a question with us : but we say, with submission, there are not two witnesses in that case; for Mr. Porter says only what he was told by sir George Barcley, that sir George proposed this matter; but withal he tells you, that when sir George Barcley proposed it, and Mr. Rookwood was informed what the design was, he was so far from conspiring, consulting, or agreeing to do it, that he said it was a barbarous act, and he recoiled at it. Then at last gays sir George Barcley, You must command a party.' L. Č.J. Well, and what said Rookwood then?

Mr. Phipps. Porter says, he then said, there is an end of it. Now, my lord, what evidence is this of a consultation and agreement? And this is all that Porter says. As to what Mr. Harris says, we are to consider whether the list given to him be an overt-act; and there the point in question is, whether that list can be given in evidence against Mr. Rookwood, upon this late act of parliament, as an overtact, it not being laid in the indictment? There is indeed an overt-act of a list laid in the indictment, as given to Cranburne, but none as given to Mr. Rookwood.

L. C. J. Pray take the evidence right: first, what will you make an overt-act? What do you think when there is a debate among divers persons about killing the king?

Sir B. Shower. With submission, that will be no overt-act, if there be a debate of such a matter, though he be present.

L. C. J. Aye; but when there is a consult, and upon debate a resolution is formed, and though he does at first dislike it; yet when he is told he must command a party, he says he is content, or there is an end of it-What do you make of that?

Sir B. Shower. He said he did not like it; it was a barbarous, desperate design.

L. C. J. It is true; but when sir George Barcley said he should command a party, he acquiesced, and said there was an end of it. There was a discourse about cutting off the king, and that was agreed upon in the company at that time; and though at first he did not like it, yet he might afterwards agree to it.

Sir B. Shower. My lord, that is it which we deny; we say there is no proof of his agreement to it.

L. C. J. Captain Porter says, he did declare that he said he looked upon it as a desperate design, and was averse from being engaged in it, but afterwards did agree to it: whether is not that such an overt-act as is laid in the indictment?

Sir B. Shower. My lord, we must beg leave for the prisoner in a case of this nature, that it may be recollected what the evidence did say. Mr. Porter did not take upon him to affirm that Mr. Rookwood consented to it, but only said,

'There was an end of it.' Now we must leave that to the jury, what they can make of such a doubtful expression.

L. C. J. Ċall Mr. Porter in again.

Mr. Conyers. My lord, the first meeting Mr. Porter speaks of, where the prisoner, Mr. Rookwood, was, is at the Globe tavern, where this discourse was; the next meeting that he speaks of was on the Friday night before the first Saturday when the business was to be done; and afterwards he met at Porter's lodgings, on Saturday morning, in Rider-street.

(Then Capt. Porter came in again.)

Porter, Yes, my lord, he did so.

L. C. J. Well, what said sir Geo. Barcley? Porter. Sir George Barcley said, he ought to obey his orders, for he had such a commission for such a thing, and he drew out a scheme how it was to be done; and when sir George Barcley told Mr. Rookwood he should command his party, he replied in French, 'There's an end of it.'

L. C. J. This was at the Globe tavern, was it not?-Porter. Yes, my lord, it was.

Att. Gen. Pray then, capt. Porter, let me ask you another question: Was he afterwards with you at any other meeting, and when and where?

Porter. He was with me upon Saturday the 15th, at my lodging in Little Rider-street, where was sir George Barcley and others.

Att. Gen. What discourse happened then, I pray?

Porter. They did there discourse the whole matter, and sir George Barcley was not for going at that time, because there was so many people that went with the king, that there would not be a good opportunity to effect the design: but I told him they would go off after the hunting was over, and so it was agreed upon to go on with the undertaking.

Att. Gen. Pray, at that time did Mr. Rookwood pretend to dislike the affair, or refuse to be any way at all concerned in it?

Porter. No, my lord, I cannot remember that he spoke one word.

L. C. J. Was Mr. Rookwood there? Porter. Yes, there was Mr. Rookwood, sir George Barcley, and Mr. Durance.

Att. Gen. And had you discourse at that time about this business?

Porter. Yes, my lord; there was that objection made of so many people going with the king, and I made that answer that I tell you.

L. C. J. Why, then, suppose at the Globe tavern such an expression had not dropt from the prisoner, but a man is present at two consults that are held about the death of the king, but says nothing either at the first or second, what would you make of that case?

L. C. J. But I speak of two meetings; there was but one.

Sir B. Shower. My lord, I do not know whether there were two meetings or one then : but this is the ground we go upon, there ought to be two witnesses: and if there be two meetings upon such a design, the second may be as accidental, and it does not appear to be a designed meeting; and there was no appointment of Mr. Rookwood to be there, nor any negocia tion by way of message or otherwise, to that purpose. Is this, my lord, an overt-act? Suppose a man be present at a consult about treasonable practices, and he uses words that are indifferent, it is true, in the case of a wager it amounts to an assent, but it hardly will come to that when people meet by accident, or for they do not know what.

L. C. J. How is this by accident?

Sir B. Shower. It does not appear that it was by design or appointment.

L. C.J. They were acquaintance. Sir B. Shower. He had no acquaintance with him but in sir George Barcley's company.

L. C. J. But, besides, there was an express consent at the Globe tavern, when Rookwood said,There is an end of it.'

Sir B. Shower. That is as much as to say, I will not do it, I will not go with you

Sol. Gen. Sir George Barcley was the person whom they were to obey; and Harris tells you he told them what they were to do, and six horses were first placed, and three of them afterwards removed.

Sir B. Shower. That will not affect him what sir George Barcley said, any more than Lewis's appointing of the horses.

L. C. J. Then here is another thing, Why did he give a list to Mr. Harris? The list that was given had Mr. Rookwood's name at top, as he was to command the party, and there was Harris's name and Hare's name as of his party; that is, their feigned names: Mr. Rookwood's feigned name was Roberts, that was at top, and they were to go to Turnham-Green, and Rookwood told Harris he should be his aid-de-camp.

Sir B. Shower. My lord, for that I think we have a point of law, that we apprehend will turn off all that evidence, and sure we may