Alt. 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 his 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 lordship 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. 1 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 a 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 ac¿VOL. XIII.

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 crime 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 ali 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 had two wives, and they brought a copy of an indictment upon which there was no process; P

after that they endeavoured to prove him guilty of several robberies; but all that sort of evidence was refused. I only give them this instance to shew, that where the prisoner has attempted it, it has been always rejected; and I am sure they cannot shew me that ever it was allowed, even to the prisoner himself, to give any thing of this kind in evidence; and this I must say, they can never shew me any one particular instance, when counsel ever endeavoured to do it, before this time.

Sir B. Shower. My lord, I mentioned the particular crimes, the faults which I had in my instructions to object against the credit of the testimony of capt. Porter, in answer to Mr. Attorney's desire, that I would open the particulars of the evidence, that I would call my witnesses to the truth of it; I was loth to repeat the words, I think the things themselves so abominable; but we conceive, with submission, we may be admitted in this case to offer what we have offered. Suppose a man be a common, lewd, disorderly fellow, one that frequently swears to falshood for his life: We know it is a common rule in point of evidence, that against a witness you shall only give an account of his character at large, of his general conversation; but that general conversation arises from particular actions, and if the witnesses give you an account of such disorderly actions repeated, we hope that will go to his discredit, which is that we now are labouring for, and submit it to your lordship's opinion whether we may not do it.

L. C. J. Look ye, you may bring witnesses to give an account of the general tenour of his conversation, but you do not think sure that we will try now at this time, whether he be guilty of robbery or buggery.

guilty of in court, I mean of the intended assassination.

Mr. Phipps. No, we agree we cannot; but pray let us prove him guilty of as many crimes as we can.

Sol. Gen. But, my lord, I hope you will keep them to the general question of the common ordinary tenour of his conversation. Sir B. Shower. Call Mr. Oldfield, Mr. Nicholas, Mr. Milford, Black Will.

[Mr. Milford appeared. Cryer. Lay your hand on the book. The evidence that you shall give on behalf of the prisoner at the bar shall be the truth, the whole truth, and nothing but the truth. So help you God.

Sir B. Shower. Pray will you give my lord and the jury an account whether you know captain Porter, and how long you have known him?

Milford. I have known him about four years. Sir B. Shower. What reputation is he of? Milford. I never knew any hurt by him in my life.

Sir B. Shower. Pray what is your name? Milford. Frederick Milford.

Sir B. Shower. But the name in my brief is John Milford, that is my man.

L. C. J. But you see this man knows him.
Sir B. Shower. Call Mr. Oldfield.

[Which was done, and he appeared accord. ingly.]

Mr. Phipps. Do you know captain Porter? Oldfield. Yes, I do.

Mr. Phipps. How long have you known him?

Oldfield. I believe about twenty years. Mr. Phipps. Pray will you give my lord and the jury an account of his life and conver

Oldfield. I can say nothing, he was always civil in my company, but he was lewd in his

discourse.

Sir B. Shower. What do you mean by being lewd in his discourse?

Oldfield. Why, he would be talking very extravagantly.

Mr. Phipps. What do you mean in talking? Was it of what he had done himself, Sir?

Oldfield. No otherwise than that he had whored, and those kind of things.

Sir B. Shower. What other things beside whoring?

Oldfield. I know no other part of it.

Sir B. Shower. Where is Edward Bouchey? (He did not appear.)

Mr. Phipps. Call William O'Bryan. (He did not appear.)

Sir. B. Shower. Where is Mr. Page, and Mr. Hardiman?

(None of them appeared.) Cryer. There is not a man of them here, Sir.

Sir B. Shower. Mr. Webber, Do you know where they are, for the court stays for them.

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 accouut 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 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,

The next day, or a little time after, Mr. Harris met with Mr. Rookwood, 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 Barcley, and obey his orders) Mr. Rookwood said, he was afraid the thing was so, and that they were drawnin; but said, If he had known of the design before-hand, he would not have come over, but have begged the king's pardon.

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 ohey 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; 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 witnesses, that Mr. Rookwood was concerned in this design of assassinating the king: captain Porter is positive that be 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