take that exception now. The words of the act are, That no evidence shall be given of any overt-act that is not expressly laid in the indictment. Now cannot I shew upon this indictment, that there is an overt-act in such a positive direct manner as they now urge about this list? Will not that satisfy your lordship's judgment to set aside all this evidence? To make the indictment good for treason, there ought to be a compassing of the death of the king laid, and an overt-act laid declaring that compassing; but no evidence is to be given of any overt-act that is not laid in the indictment. L. C. J. You are not to take exceptions to the indictment now, but only to the evidence. Sir B. Shower. I have this one exception more; there is never a Quodque,' nor a Juratores ulterius præsentant.'

L. C. J. There does not need, but that is a fault, if any, in the indictment, and is not to be stirred now.

Sir B. Shower. If there be not a presentment by the jury, then there is no overt-act alleged: and if there be no overt-act alleged, or no such overt-act, then we are within the words of the act, That no evidence shall be given of any such overt-act but what is alleged; and it is, if not expressly alleged, as if it were not alleged at all. Now here it is very loose, &c. ⚫iidem Christophorus Knightley,' and so it goes on with the rest, did so and so. There is a presentment at first, that they did compass and imagine the death of the king; and then the indictment comes farther, and says, that forty men should do this business, and of those forty these four should be some; and then the * iidem' bought horses and arms, and so it must go to the last antecedent, and then there is no express alleging of any overt-act; and then it is as if no overt-act at all was alleged.

L. C. J. This exception is not to the evidence, but to the indictment: it begins Jura*tores presentant quod;' Does not that relate to all?

Sir B. Shower. No, my lord; and I can tell you a reason why not: if it be not so well alleged as it should be, it is an indictment as if it were never alleged at all; and so within the words of the act of parliament this is not an overt-act alleged, and therefore they cannot give evidence upon it.

Sol. Gen. Truly, my lord, I cannot imagine what they are doing, they are moving in arrest of judgment before a verdict given: they say the overt-act is not expressly laid; Is that an exception to the evidence, or to the indictment?

Sir B. Shower. If my lord will please to give us the liberty, we would shew there can be no verdict given upon this indictment.

E. C. J. Certainly this is an irregular proceeding; this is not a time of exception to the judgment.

Mr. Phipps. Then, my lord, we are in your judgment, as to the proof that has been given: if a man be present at a meeting of several persons, and there is a treasonable debate about

killing the king, and this man is only present, but neither assents, nor makes the proposal how it shall be done, whether the bare being silent, and saying nothing, is such an overt-act as shall convict a man of treason?

L. C. J. I tell you, consenting to a traitorous design is an overt-act of high-treason, if that consent be made to appear by good proof. Now the question is, What is a good proof and evidence of this consent? A man is two or three times at a treasonable consult for killing the king, and though perhaps at the first he did not, yet at the second he did know that the meeting was for such a design, (suppose for the purpose there was but two meetings) and at the second it is determined to go on with the design; Is not that an overt-act, though it cannot be proved that the prisoner said any thing?

Mr. Phipps. If the first meeting is not a consent or an overt-act, neither will a second or a third be, if there was no more done than at the first, but they are like so many cyphers without a figure.

L. C.J. The first meeting possibly might be accidental, he might not know what it was for, though that will go a great way if he does not dissent or discover; but when he meets again with the same company, knowing what they had in design; does not that prove a consent? That was the case of sir Everard Digby in the Powder Plot.

Mr. Phipps. But where it may be uncertain, my lord, whether it were with a good design, or a bad design, that he met with that company, it ought to be taken most favourably for the prisoner: This man might be present in order to a discovery.

L. C. J. But besides, that is not this case; you are mooting upon points that are not in the case. When Mr. Harris came to Mr. Rookwood, and finding them in some disorder, and being inquisitive what was the occasion, he was sent to Counter; and when be discovered what they were to go about, he afterwards meeting Mr. Rookwood, says to him, Are we sent over to murder the prince of Orange? says Rookwood, if I had known of this design before I came from France, I would have begged the king's, that is king James's pardon, and desired to have been excused. Hereby he expresses his knowledge of the design, and what he was to do; and though he disliked, yet would obey orders.

Mr. Phipps. There is no doubt, my lord, but he knew of it; but whether your lordship will construe his silence as a consent, in treason, is the question.

L. C. J. A man is at frequent consults about killing the king, and does not reveal it, it is a great evidence of his consent.

Mr. Phipps. But it is not proved that he did actually consent to it.

Sol. Gen. My lord, we must submit it to your lordship, whether this is not totally improper and irregular at this time? They are arguing how far the evidence is to be believed,

before the time proper for such an argument

comes.

Att. Gen. If they will call their witnesses, let them; or if they say they have none, then they may make their observations upon the evidence; but else we desire we may be kept to the usual method of proceedings.

Mr. Phipps. With submission, we thought it fit to know the opinion of the court first, if there be two witnesses against the prisoner; for if there be not two witnesses, as the law requires, we need not trouble the court with our evidence.

Sir B. Shower. Then, my lord, we must desire that the record may be read of captain Porter's conviction of manslaughter; a man that has been guilty of doing such an act, feloniously, maliciously and voluntarily, as that is, sure is not a competent witness.

Cl. of Ar. It has been read already. Att. Gen. I thought we had been over that objection before.

Sir B. Shower. We think it is proper for us to move it now again; for though it is no objection to his being a legal witness, yet we hope it will influence bis reputation as to his credit; for he that has been guilty of killing a man in such a manner as the indictment lays it, will find but little credit, we hope, with a jury of countrymen. But since it has been read, and your fordship and the jury have taken notice of it, we will call some other witnesses as to Mr. Porter's reputation and behaviour, we think they will prove things as bad as an attainder. I shall not open them to your lordship, but beg leave to call our witnesses, who will acquaint you what they have to say.

Att. Gen. Certainly, my lord, you will not think fit to let them do so. I desire they would not usher in any thing of evidence without acquainting the court what they call them for For that were the way to let them in to call witnesses to things that are not proper.

L. C. J. Nay, without doubt it is not regular to produce any evidence, without opening it.

Att. Gen. For if it be for any crime that a man may be presented for, and there is no conviction; I think that ought not to be given in evidence to take away a witness's credit: If it be only to his general reputation and behaviour, so far they may go, and we cannot oppose it. Therefore I desire sir Bartholomew Shower will open to the court of what nature his evidence is.

Sir B. Shower. Well, I will tell you then "what I call them to.

L. C. J. You must tell us what you call *them to.

Sir B. Shower. Why then, my lord, if robbing upon the highway, if clipping, if conversing with clippers, if fornication, if buggery, if any of these irregularities, will take off the credit of man, I have instructions in my brief, of evidence of crimes of this nature, and to this purpose against Mr. Porter; and we hope that by law, a prisoner standing for his life is at liberty to give an account of the acVOL. XIII,

|tions and behaviour of the witnesses against him. I know the objection that Mr. Attorney makes, a witness does not come prepared to vindicate and give an account of every action of his life, and it is not commonly allowed to give evidence of particular actions; but if those actions be repeated, and a man lives in the practice of them, and this practice is continued for several years, and this be made out by evidence; we hope no jury that have any conscience, will upon their oaths give any credit to the evidence of a person against whom such a testimony is given.

Mr. Phipps. We are speaking only, my lord, to the credit of Mr. Porter; and if we can shew by evidence that he is so ill a man as to be guilty of those crimes that we have opened, according to the instructions in our brief, we hope the jury will not think him fit to be a good evidence against us in this matter. L. C. J. What say you to this, Mr. Attorney?

Att. Gen. My lord, they themselves know, that this sort of evidence never was admitted in any case, nor can be, for it must tend to the overthrow of all justice and legal proceedings; for instead of trying the prisoner at the bar, they would try Mr. Porter. It has been always denied where it comes to a particular crine that a man may be prosecuted for; and this it seems is not one crime or two, but so many and so long continued, as they say, and so often practised, that here are the whole actions of a man's life to be ript up, which they can never shew any precedent when it was permitted, because a man has no opportunity to defend himself. Any man in the world may by this means be wounded in his reputation, and crimes laid to his charge that he never thought of, and he can have no opportunity of giving an answer to it, because he never imagined there would be any such objection: It is killing a man in his good name by a sidewound, against which he has no protection or defence. My lord, this must tend to the preventing all manner of justice; it is against all common sense or reason, and it never was offered at by any lawyer before, as I believe, at leastwise never so openly; and therefore I wonder that these gentlemen should do it, who acknowledge, at least one of them did, that as often as it has been now offered it has been over-ruled; and I know not for what end it is offered, but to make a noise in the court: They know that it is irregular as much as any thing that could be offered.

There

Sol. Gen. Indeed, my lord, if the prisoner at the bar had offered this matter, it had been excusable; but that gentlemen of the long robe, and who are so well acquainted with the practice of the courts of law, should pretend to do such a thing, is unaccountable. was somewhat like this that was offered at Manchester, but that was by the prisoner, to prove that one Lunt who was a witness bad two wives, and they brought a copy of au indictment upon which there was no process;

P

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 han 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.

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 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 Turnbam 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,

The next day, or a little time after, Mr. Har is met with Mr. Rockwood, and enters into discourse with him to this effect: What! are we sent over to murder the prince of Orange? It is a strange sort of employment: (for it seems they were not informed in France what they were to do here, but they were to put themselves under the conduct of sir George Barcies, and obey his orders) Mr. Rookwood said, he was afraid the thing was so, and that they were drawnin; bat said. If he had known of the design before-hand, he would not have come over, but have begged the king's pardon,

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 220, 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 your 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; but that is only a circumstance.

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 have 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.

Then they say in point of law, There is no overt-act proved of any design against the king's life that affects Mr. Rookwood; now that matter you are to consider of, whether or no it does appear by the testimony of two wit nesses, that Mr. Rookwood was concerned in this design of assassinating the king: captain Porter is positive that he was at the consult at the Globe-tavern, where it was proposed, debated, and resolved upon; but Mr. Rookwood says, he did dislike it; so says captain Porter, he did not approve of it at the first upon his being acquainted with it; but being sent over to obey the orders of sir George Barcley, and sir