Die Mercurii Vicesimo Secundo Die Aprilis, Anno Domini 1696. Anno (que) Regni Regis GULIELMI III. OCTAVO.

THIS Day the Justices of Oyer and Terminer holden for the County of Middlesex, adjourned over to Seven this Morning, met, and the Court was Resum'd by Proclamation in usual Form.

Keeper of Newgate, set Robert Lowick to the Bar, (which was done) You the Prisoner at the Bar, Robert Lowick, those Men that you shall hear called and personally appear, are to pass between our Sovereign Lord the King and You, upon Tryal of your Life and Death; if therefore you will Challenge them, or any of them, your time is to speak unto them, as they come to the Book to be Sworn, and before they be Sworn.

If your Lordship pleases to favour me with one Word for the Prisonor at the Bar; I shall not trouble your Lordship with any thing that was urged by the Gentlemen that were of Coun­cil Yesterday, but I shall Rely upon something that has not yet been spoken to. My Lord, they have not laid any Time or Place where the Consent or Agreement was for the Forty Men that were to set upon the King and his Guards: There is a Time laid before where they met and discoursed of the Ways and Means how to Assassi­nate and Kill the King; but when it comes to the Assencerant, Concesserunt & Aggreaverunt; with Submission, this being another Act; there ought to be another Time and Place laid, and for that I shall Cite your Lordship two or three Cases; for Men may meet and Propose and Discourse and Consult of such Things, though they be [Page 36] very Ill Things, and yet that may not be Treason. It's the A­greement that is the Treason, and so 'twas held in Captain Blagues Case about Taking the Tower: They may meet at one Time and Place, and at another Time and Place they may agree, in Dyer, 68. B. and 69 Pl. 28. a Man was Indicted for Murder, that he at such a Place in and upon the Person that was Murdered in Sul­tumferit & ipsum, the Person that was Murdered, cum Quodam Cur­tello, of such a Price, percussit; and he does not shew the place where he struck him, nor had the Indictment the Words, ad tunc & Ibidem, and therefore the Court held it void: So it is likewise Ruled in Goodrick's Case, H [...]ll. 35. & 119. and therefore in Indictments for Murder, since they generally set forth not only the Time and Place of the Assault, but likewise of the Blow; so likewise in things of a more inferiour Nature, as Rescues, Returned by the Sheriff, that the Capias was served, but does not shew where the Rescue was, or though he shews where the Arrest was, and an & Coupled the Rescue to it, yet it was adjudged and Ill Return, Dyer 69. Pl. 29. 10 Edw. 4. 15 Fitz. Ret. Vic. 32 Bro. Ret. Det. Bre. 97. and Errour 194. Palm. 563. And in Noy 114. there are these Words, Note, It was Moved in Discharge of a Rescue, the Return was, that they, viz. A. B. aforesaid the Bayliffs, ad Tunc & Ibidem Vulneraverunt, &c. And the afore­said George, &c. Rescuserunt without ad tunc & Ibidem, Refer­red only to the Vulneraverunt, and not to the Rescuserunt, and therefore the Return was adjudged Insufficient; for my Lord, al­though in Conveyances, a Clause or Word in the beginning or end may Refer to the whole, yet in Indictments every Sentence must be Certain, Plain, and Express, and have its own Time and Place: Therefore in Noy's Rep. 122. Raymond was Indict­ed for stopping a Cross Way leading from a certain Ville cal­led Stoake, into a Ville called Melton in the County of Dorset, and the Indictment was Quasht, because in the County of Dor­set shall refer only to Melton, and not to both: So an Indictment of Forceable Entry into a Messuage existent Liberum Tenementum of J. S. is not good for want of the Word ad Tunc, though the Participle existens does strongly Imply that it was his House at that time, 3 Cro. 754. Het. 73 Noy. 131. Palm. 426. Bridg. 68. 2 Cro. 214, & 610. Sid. 102. Lat. 109, &c. and my Lord Coke tells us in Calvin's Case 5. B. That Indictments of Treason of all others are the most Curiously and Certain­ly Indicted and Penn'd; and all those that I have seen and observed, have Contained more Certainty than [Page 37] the Indictment now before your Lordship in Reginald Tuckers Case: The Indictment was, that he and Thomas Place apud Bridgwater, in Com. Somersett. praedict. Compassaverunt, to Kill and Depose the King, &c. And to bring their Treasonable purposes to effect, they the said Reginald Tucker and Thomas Place the same Day and Year, at Bridgewater aforesaid, in the County aforesaid, against the King with a great Multitude of People, Arrayed in a War­like manner, viz. with Swords, &c. se ipsos illicite & proditorie insimul ad tunc & Ibidem Congregaverunt & Assemblaverunt & Guerram publicam Contra dictum Dominem Regem apud Bridgewater proedict. in Com. proedict. Dicto Vicesimo Die Junii anno primo su­pro dicto proditorie paraverunt ordinaverunt & Levaverunt; so in the Indictment of Gate as it is set forth at large in a Plea in Bar of Dower, brought by his Wife, he with Force and Arms, apud Villam de Ware, &c. assembled with a great many Persons, & Bellum Crudele Contra Dictam Dominam Reginam apud Ware, prae­dict. ad tunc falso & proditorie publicavit & Levavit ac in super ad tunc & Ibidem falso & proditorie, Proclaimed the Duke of Nor­thumberland to be Lieutenant General of their Forces; & etiam falso & proditorie apud Ware proedict. ad tunc, Proclaimed the La­dy Jane Dudley Queen. This is in Bendlowes Reports, Publish't by Serjeant Rowe, fol. 55. placito 91. So in Earl of Leicester's Case Plowd. Com. 385. the Indictment is laid much after the same manner, and many other Indictments, which at present I am un­willing to trouble your Lordship with; and this being one of a new Form and of the First Impression, I hope your Lordship will hold it insufficient. And my Lord, when they go farther, and say, Et Quilibet eorum proditorie super se suscepit esse unum, there is no place or time alledged where that was done, which of neces­sity should be mentioned: For it is a constant Rule in our Books, that what is Issuable ought to have a place where it may be try­ed. Now this is Issuable, and the most material thing in the In­dictment, is for compassing the King's Death. The Overt Acts are that Christopher Knightley the Prisoner, and Two others, did Con­sult to kill the King; and afterwards did agree how to do it, viz. by Forty Horsemen Quorum, these shou'd be Four, and every one of them did agree to be one; then comes the other Overt Act of Providing Arms for them. Now suppose they should not prove the last, viz. the Providing Arms; then, my Lord, they must re­sort to one of the other Overt Acts, that these Four did Consult and Agree to Kill the King; or that these Four did agree, the man­ner how to do it, as is laid in the Indictment; and it is plain they must fail of proof of either of these, for by the not Prosecuting any one of the Name of Christopher Knightley, but preferring a new Indictment, against one Alexander Knightley, it appears that Christopher Knightley was not there, and the proving these Three others making a Consult and Agreement, is not a proof of the same Overt Act, that is laid in the Indictment as it ought to be by [Page 38] the late Act; unless they can prove that a Consult of Three is a Consult of Four: and if it be answered, that it is alledged, that Quilibet eorum super se suscepit, then will that come to be Issua­ble and the most material part of the Indictment; and consequent­ly a place ought to have been laid where it should be Tryed; this, my Lord, is a distinct Sentence of it self, it is in a Parenthesis, and though you take it away the sense of what remains is perfect and intire, and consequently this Sentence is or shou'd be intire of it self, and therefore ought certainly to be exprest. Besides, if your Lordship pleases, it is not positively laid, what these Persons severally undertook, to be there is indeed mention made before of Forty Horsemen, agreed upon to set upon the King, then comes the Parenthesis, Quorum Iidem Christophorus Knightley, Robertus Lowick, Ambrosius Rookwood & Carolus Cranburn forent Quatuor & quilibet eorum pro­ditorie super se suscepit esse unum: It is perhaps exprest fully enough by the word Quorum, that it was agreed these shou'd be Four of the Forty Horsemen; but there wants the repetition of the word Quorum, to express what they severally engaged to be; and the word & cannot joyn and connect the Sentences: For forent and su­scepit Differ not only in Number but also in Mood and Tense, and the sense is not necessarily coherent; for it might be true, that the Majority of the Company might agree, these shou'd be Four, and yet they themselves might not severally Ingage therein, and one or some of them might undertake it, and yet the Company not agreed to it; and it cannot be mended by Intendment. There was Vaux's Case, in the 4 Rep. 44. He was Indicted for Murder, for perswading a Man to take Cantharedes; it was laid, That he Perswadebat eundem Nicholaum Recipere & Bibere Quendam potem mixtum cum Quodam veneo vocat Cantharedes; and the Indictment says, Quod proedictas Nicholaas Nesciens proedictum potem cum Veneno proedicto flore in toxicatum sed fidem ad Hibens Dicte perswasioni Willielmi Resepit & Bibit; but does not say, veneum proedictum, but yet it adds, Per quod praedictus Nicholaas imediate post Receptio­nem veneni proedicti, Languish'd and Dyed here, one wou'd think was a sufficient Implication, that he took and drank the Poison; but it was Rul'd, that none of these words were sufficient to main­tain the Indictment; for the matter of the Indictment ought to be plain, express, and certain, and shall not be maintained by Argu­ment or Implication, and therefore for want of those words the In­dictment was held insufficient, and the Man again Indicted for that Offence, and there seems much more in-certainty in this Indictment, and therefore I humbly pray your Lordship that it may be Quash't.

My Lord, we think the Objection is fully put, and therefore we desire to have their Answer to it.

We think, my Lord, this Objection will receive a very plain Answer. The Indictment sets forth, that at such a Place the Prisoner at the Bar did imagine and compass the Death of the [Page 39] King: There is a particular place where the imagining was, and that they to accomplish that Treason, in compassing and imagining the Death of the King, did amongst others postea eidem due anno apud parochiam praedictam, Meet and Consult, &c. So there's the same place set forth again, wherein they did Meet and Consult of the Ways and Means, and Time and Place, when, where, and how to Assassinate the King: And immediately it follows, & Conce se­runt & agreaverunt, &c. that Forty Men, whereof they were to be Four, and every one of them undertook to be One, should do so and so. Now, my Lord, say they, It is not said that the Agree­ment, that there should be Forty Men to do it, was at the same Time and Place where they did Meet and Consult about the Ways and Means: But my Lord, with Submission, it is very plain, that the Agreement for Forty Men, and the particular Agreement for them to be of the Number▪ is but the effect of the Consultation that is mention'd just before: For it is said, they Consulted how they shou'd do it, and they agreed to do it in this manner; the particular manner is set forth immediately afterthat, it is said they did Consult of the Manner, so that, my Lord, it is part of the former Sentence; a particularizing of what they did agree upon at that Consultation; but it is no distinct Overt Act: If it had been a distinct Overt Act, then the Cases that have been Cited by the Council, do show, that there shou'd be a particu­lar time and place mentioned for every Overt Act, but this is only a part of that Overt Act, that was mentioned generally before: This tells you particularly what the means were they did agree upon, and the Sentence is not compleat till you have gone over this; so that, my Lord, with Submission, it had been very Improper when they agreed at such a Time and Place, of the means and ways how it shou'd be effected, then to set forth, that it was at the same time and Place where they did Consult of the Ways and Means, that can­not be proper; for it is not laid at first, that there was any parti­cular way proposed, but only in general, they Consulted of the Ways and Means; therefore, my Lord, all this that Mr. Mompesson has said, will not be pertinent to this Case; it is impossible to have been otherwise; it is but a part of the Sentence; and it is not com­pleat till you have gone over the several particulars, as to the Case of a Rescus, that is, the Offence upon which the matter is to be grounded; the Verbaravit and Vulneravit are not the Offence but the Resmeing; but where there is not one Sentence compleat, till you come to the end of these words, there it must be all taken together; so it is here, they Consulted of the Way, and agreed this to be the Way, which they set forth in particular: It is join'd to the former part of the Sentence, and the whole is not compleat without it.

With Submission, my Lord, it cannot be otherwise, nor can they make it sense otherwise.

They say you might, and shou'd have put in, Ad tunc & Ibidem.

[Page 40]

With Submission, my Lord, I say it cannot be re­peated again: Indeed if you wou'd make it like the Case, as Mr. Mompesson wou'd have it, that Forty Men did agree to it, and For­ty Men did it, it were necessary to name Time and Place, as it is in the Case of Murder; that he did agree to Murder him, and after­wards Knock't him on the Head, there you shou'd lay Time and Place where he agreed, and where he did the Act, for there is an Act done; but in this Case there is no Act done, but only an Agreement that Forty shou'd do it, whereof these Four were to be part of the Num­ber. Now, they cry, you do not say what these Four were to be for; Yes, we do, the Forty were to do such an Act, and these were to be Four of that Forty, and every one of them undertook to be one, so that it cannot be exprest otherwise then it is; for what they say of the Indictments being not in the same Form that other Indictments are, that will be no Argument at all; for it does not follow, that there must be one exprest Form of Indictments, of right there are divers Forms of Indictments, and all of them good, because Indict­ments are to be framed, according to the particular Case, and they cannot put me an Instance of such a particular Case as this. As to that of the mistake of the name of Knightley. that unquestionably can be no Objection at all; for how does it appear to the Court, that this against the same Person that was before Indicted by the Name of Christopher, there may be another Christopher [...]or ought they know: But I will suppose, that the Consult was proved not as it is laid, that they were to be Four; but only that they were to be Three of them, it would be well enough against the Prisoner at the Bar, if he be proved to be one.

First, we have here laid a time and place for the Treason alledged in the Indictment, and also for the Two Overt Acts, how, when, and where it was to be done, and the providing of Arms for it; and for this particular of the Forty Men, that they wou'd have us put the ad tunc & ibidem to that is but part of the Overt Act, which was before alledged for the first Overt Act mentioned, is the Meeting and Consulting, and there we lay both Time and Place; that on such a Day, and at such a Place, they did meet and Consult of the way and manner how to do such an Act: And then we continue on the Sentence, by particularizing how it was to be effected; that they did agree there shou'd be Forty Horsemen to do it, whereof they were to be Four; this is but a part of the Overt Act, which is the Consulting and Agreeing upon the ways and means; this particular means agreed▪ upon, being but the Result and Effect of the Consultation before; so that we conceive there is no want of time or place, upon which to take Issue in this Case.

My Lord, I think with submission, there is nothing in their Objection, and I take it to have Re­ceived a full Answer already; yet I would ask one thing [Page 41] of the Gentlemen of the other side had the Sentence run without the Words de iis modis & mediis, &c. which follow after the word consultavit, and before the words & aggreavit; in this manner, That they did then and there Trayterously treat, propose, consult and agree, that 40 Horsemen, or thereabouts, with Guns, and so forth. If then there had been any Colour to think it necessary, that it shou'd be laid in this manner, That they did then and there Trayterously treat, and then and there Trayterously propose, and then and there Trayterously con­sult, and did then and there Trayterously agree: and if not, then I wou'd de­sire them to tell me why then and there is more necessary to one Verb did agree, than it is to all the rest, in sence and common speaking. The only use of a Conjunction Copulative, is to derive the force of some Words in a Sentence foregoing, down to a Sentence following, to avoid repetition: And here, though after the Consultation be put many Words that relate to that matter by way of Parenthesis; yet the ad tunc & ibidem still does referr to all the Verbs fol­lowing, being joyned by the Conjunction Copulative; it does not vary the Case at all, the putting in that Parenthesis; it is notwithstanding but as one Sen­tence: and the supposing that the Parenthesis stood out▪ makes it very plain, there can be no Colour to say there wanted a Repetition of the ad tunc & ibi­dem to every Verb.

With submission to your Lordships Judgment, there is no An­swer made to this Objection: I do agree, if there had been several Verbs and no other Words had intervened, that an Et wou'd have Coupled all together, and you need not have repeated ad tunc & ibidem to every one: But here is a Fact after the Verbs that makes one compleat, intire Sentence; and if this of the 40 Men were left out, it had been a good Sentence, that they did propose and treat how, where and when; that's a Sentence of it self, the Consulting and the Treating of the Ways and Means: But then they say, And they did agree and assent that 40 shou'd do it; now there is no necessity for the interpreting of these words, That they shou'd consult and agree at the same place and time; there is no necessity to conjoyn this Agreement for the 40 Men with the Con­sultation; they might propose and consult at one time and place, and not agree, and afterwards agree at another time and place; it is not a Specifica­tion, or, as they call it, a specifick Account of the Consultation, nor a neces­sary Effect of it, so as to make it necessary to joyn them together; they might meet and consult at one time and place; and at another time and place they might agree that 40 shou'd do it; and therefore when you say at one time and place they did consult and propose, and afterwards they did agree; it is not necessarily imply'd, that it must be at the same time and place; and when it is not necessarily imply'd, we think it necessary in Indictments, for Certainty-sake, to have ad tunc & ibidem inserted again.

My Lord, Mr. Sollicitor says, That as to other Precedents, th [...] does not make it necessary that this shou'd be like them; and that it is no Argument that it ought to be so here. My Lord Coke, in Calvin's Case, tells us, That by Precedents the Law is known, and that Indictments of Treason are of all things the most curiously Penn'd; and it is common to inferr the Law is so, because usually it is so in the Precedents of Indictments. Mr. Sollicitor says likewise, That there may be a Christopher Knightley besides an Alexander; but I cannot take that for an Answer to the Exception I urge, which is the want of ad tunc & ibidem at the Quorum, and the Quilibet for the Quilibet may come to be in Question as the most material part of the Indictment, because the Agreement of the Four upon the meeting of the Four is alledg'd as an Overt-Act: Now, with submission, they must prove the Assembly of the whole Four, [Page 42] or they do not prove the Overt-Act expressly laid; then as to the Quilibet susce­pit, which is the most material part, it has no time nor place.

No sure, we do not need to prove all Four, for it is a distinct Offence in each; and if any one undertook, it is well enough against him; and for the time and place, we tell you, it is part of the former Sentence, and makes but an intire one.

As for the Residue of the Verbs, if they had been omitted, it had been good Sence; but this is a perfect intire Sentence of itself, when it tells you what they consulted and treated off, as in the Case of the Rescous that I put; if it had stopt there, it had been a good Sentence without the Vul­neraverunt.

The Rescous is the Offence in that Case, the other is distinct: But here, in this Case, nothing can be plainer than that all is one Act, as we have laid it, That at such a time and place they did consult and treat of the Ways and Means; but then there is no Agreement mentioned till after we have said they did consult of the Ways and Means, and did agree that this shou'd be the Way: This is certainly one intire Sentence that shows what the Agreement was upon the Consultation as the Result of it.

As to what Sir Bartholomew Shower says, That we ought to re­peat the ad tunc & ibidem, unless the sence of the Words implies a Necessity that the Consultation and the Agreement should be at one time and place. My Lord, there can be nothing in that, for it does not arise from the Necessity of the thing one way or t'other; but we take it as an intire Sentence, and that the whole Matter is sufficiently connected and laid to one time and place, though it might be divided, it must be taken, as alledged, to be one intire Fact, or else it Recurrs to the same Objection, that ad tunc & ibidem must as well be put to every Verb; for 'tis possible they might propose at one time and place, and consult at another, and debate at another, as well as agree at another: So that nothing is to be argued from the Necessity of the thing more in one Case than the other; for one Man might propose it in one place, and the rest might then shake their heads at it, and then they might again meet and consult at another place, and afterwards agree at a third: But when it is said then and there they did meet, consult and agree, it cannot be understood but that the Agreement was at the same time and place with the meeting and con­sult.

But this can be no Answer that Mr. Cowper gives now, for Proposing, and Consulting, and Treating, and Debating, are all of the same sig­nification, for one Man's proposing to another; and the other's proposing to him, is Consulting, Treating and Debating; but now Consulting and Agreeing are different things.

So is Proposing and Consulting; One may propose, but there must be at least Two to consult: there is that nice Difference between them.

Every one must agree for himself, and that must be certainly laid with Time and Place, let the Proposal and Consultation be what it will.

[Page 43]

Mr. Mompesson puts that Case in Dyer upon an Indictment of Murder, That on such a Day, and at such a Place, the Party made an Assault upon the persons slain, & percussit; but does not say, Et ad tunc & ibidem percussit, and for not alledging that the Indictment was held nought.

My Lord, that is a different Case from this, because insultum fecit, and the percussit, are different Crimes; there is a great Difference be­tween an Assault and a Stroke: But here it is, That they did Propose and Consult of the Ways and Means, and agreed upon this particular Way; that is the same thing; it is not an intire Sentence till you come to the end of it, then it is compleat when you show what was the Effect of the Consultation; what they were agreed upon, and not till then.

A Man's holding up his Hand is an Assault, but he must actually strike to be Guilty of Murder: So a Man may debate, and yet not a­gree; it is the Agreement that is the Treason.

Read the Indictment.

‘ DEcimo die Februarii anno Regni dicti Domini Regis nunc septimo, & diversis aliis diebus & vicibus, tam antea quam postea, apud Parochiam Sancti Pauli Covent-Garden, proedict’, in Comitatu proedict’ falsè, malitiosè, Diabolicè, proditoriè, Compassa­verunt, Imaginati & Machinati fuerunt, Excogitaverunt, Designave­runt & Intendebant dictum Dominum Regem nunc occidere, inter­ficere, & murdrare, & stragem miserabilem inter fideles subditos ip­sius Domini Regis per totum hoc Regnum Anglioe passere & cau­sare & ad easdem nefandissimas, nequissimas & Diabolicas proditi­ones & proditorias compassationes, machinationes, & proposita sua proe­dicta perimplend’ perficiend’ & ad effectum redigend’ ipsi iidem Chri­stopherus Knightley, Robertus Lowick, Ambrosius Rookewood & Carolus Cranburne, & quam plurimi alii falsi proditores (Jurator’ proedictis ignoti) postea scilicet eodem decimo die Februarii anno supradicto apud Parochiam proedictam in Com’ proedicto, ac diver­sis aliis diebus & vicibus, tam antea quam postea, ibidem & alibi in eodem Com’ falsò, malitiosè, advisatè, clandestinè, proditoriè, ac vi & armis conveniebant, proposuer’ tractaver’ consultaver’ consenser’ & aggregaver’ ad ipsum Dominum Regem nunc ex insidiis & dolo percuti­end’, Anglicè to assassinate, interficiend▪ & murdrand’ & ad execra­bilem, horrendam & detestabilem Assassination’, Anglicè Assassination, & Interfectionem ill’ citius exequend▪ & perpetrand’ postea, scilicet eisdem die & anno ac diversis aliis diebus & vicibus apud paroch’ proed’ in Com’ proedicto proditoriè tractaver’ proposuer’ & consulta­ver’ de viis, modis & mediis ac tempore & loco ubi, quando, quali­ter & quomodo dictum Dominum Regem sic ex insidiis facilius inter­ficerent, & consenser’ aggregaverunt & assenser’ quod quadragint’ homi­nes Equestres aut eo circiter (quor’ iidem Christopherus Knightley, Robertus Lowick, Ambrosius Rookewood & Carolus Cranburne sorent quatuor, & quilibet eor’ proditoriè super se suscepit esse unum) [Page 44] cum Bombardis, sclopis & sclopetis, pulvere bombardico, & globu­lis plumbeis onerat’ & cum gladiis, ensibus & aliis Armis armat’ insidiati forent & essent in subsessu, Anglicè in Ambush, ad eundem Dominum Regem in Rheda sua, Anglicè his Coach, existen quando foris iret invadend’ Quodque quidem & competens numerus de ho­minibus illis sic armat’ in satellites, Anglicè the Guards, ipsius Do­mini Regis eum tunc attendend & secum existen’ aggressi forent & eos expugnarent & devincerent, dum alii eorundem hominum sic ar­mat’ ipsum Dominum Regem percuterent, interficerent, occiderent & murdrarent.’

The Consult is like the Assault, and the Agreement is like the Stroke.

It is a nice Case as you wou'd have it, but I think it is very natural as the King's Councel put it at first; they lay the Consultation of the Ways and Means how it shou'd be done, and then they conclude that thus it shall be done: all which makes but one intire thing.

They say they met that day at St. Paul Covent-Garden, that's in the beginning, and did consult how to Kill the King; and they consented and agreed among themselves, that it shou'd be done in this manner: Does not this referr to both Time and Place in the beginning? It is a continuing on of the same Sentence, and makes all but one and the same Act; it is the Result of the Consultation at that time and place.

But, my Lord, it might be at another place: they might Consult at one place, and Conclude at another.

But it is laid to be at the same place, for no other place does appear, and it is one continued Sentence.

You wou'd make the Repetition so frequent and reiterated, that it wou'd become absurd.

Indeed I do not know what these Gentlemen wou'd have.

We wou'd have this Indictment as all others are, the Prece­dents are as we say, and we hope this shall pursue 'em, or else be quasht.

Look ye here, Sir Bartholomew Shower; Suppose this part shou'd not be right, that will not Vitiate the whole Indictment.

But your Lordship wont suffer them to give Evidence of that part that is Vitious.

Yes, yes; it comes within the first Words of the Time and Place laid; they may give Evidence of it▪ because this is but a setting forth the Manner agreed upon for the Execution of the Design that was be­fore consulted and treated off; it is comprehended in the former Words; and if they had omitted this out of the Indictment, the Indictment had been never the worse; there had been a sufficient Overt-Act alledged to prove the Com­passing and Imagining the Death of the King; for if People at such a place and [Page 45] time meet, and propose the way and means how to effect it, do you think the Indict­ment wou'd not be good enough without laying the particular means agreed upon? Certainly it had been well enough if this had been omitted. Do you think they cannot give in Evidence this as a Proof of the Overt Act? Certainly they may.

The Question will be, my Lord, then upon the whole, Whether the Conclusion of the Indictment, contra legiantiae suae Debitum, shall be taken Distri­butively to every Fact, and if so, then there ought to be time and place alledg'd to every Fact.

Suppose you lay several Overt Acts, and prove but one yet he is to be found Guilty of the High Treason, which is the Imagination, and Compassing the Death of the King, which is the Crime laid in the Indictment; then suppose this was left out of the Indictment they might give it in Evidence as a Proof of the Overt Act, that is well laid for time and place; and therefore though it be express'd, and not so fully and particularly laid, we cannot quash the Indictment for it, because the Indictment would have been good, though that had been omitted.

That is certainly true, it is no Cause for quashing the Indict­ment.

The Indictments against the Regicides were for Compassing the Death of the King, and they gave in Evidence that he was put to Death, though they charg'd in the Indictment only the Compassing and Imagining the Death of the King.

Ay sure, That is an Overt Act with a Witness, the Indictment was not laid for Murdering the King, but for Compassing his Death, which is the Treason according to the Act of Parliament of 25th, Ed. the 3d. and as an Overt Act they gave the cutting off his Head in Evidence.

The Indictment says, they Compass'd and Imagined the Kings death, and they agreed to do it in this manner; if this be not all one intire Sentence I know not what is

As to your Case, Mr. Mompesson, which you quote out of Dyer, it is possible a man may make an Assault at one time, and at another time make an Assault and give a stroke, but this is all one Act, it does but specifie what was ge­nerally consulted off and proposed.

Pray, do you think a man may Demurr upon a Common Action of Battery where, 'tis said first, at such a time and place, Insultum fecit & verberavti, vul­neravit, because there is not a place set to every word.

Indictments ought to be very curiously Penn'd, and what is good in an Action will not be good in an Indictment, with submission.

But suppose you show'd it for Cause upon special Demurr.

My Lord, I cannot tell what it wou'd amount unto.

You cannot quash the Indictment at this time, that is not possible, because the Indictment is good as to the rest, supposing this was not so well as it might be.

[Page 46]

Then, my Lord, I am in your Lordships Judgment, whether they shall be admitted to give in Evidence this particular thing.

They may certainly give in Evidence, the Agreement to have 40 men to kill the King, as a proof of the Consultation, Agreement and Consent to kill the King; and the Consenting to have 40 Horsemen is an Evidence of their treating, proposing and consulting to kill the King. Then for your Objection of Quilibet suscepit to be one, that is well enough, it is all still but one Sentence.

One of which is it, for they have not laid in the Indictment what it is, whether it be one of the Four, or one of the Forty.

Whether it be one of the Four, or the Forty is not material, for cannot one be found Guilty and the rest Acquitted? the one is not charg'd with the Act of the other, but they are several Offences, and each must answer for him­self in all Indictments. Offences are several. Suppose an Indictment of Conspi­racy, and it is laid in the Indictment that Four did Conspire, can't you prove that two Conspired? no Question you may. It is not certainly necessary that eve­ry one shou'd be proved to have Conspired. Suppose it were alledged that Four did beat a man, and does not say Quilibet eorum beat him, you may give in Evi­dence that one did beat him.

No Question of that in Case of a Battery, but in the Case of a Conspiracy there must be more than one.

Nay, I will ask you even in an Action of Conspiracy, where the very Gist of the Action is Conspiring together, cannot two be found Guilty and the rest Acquitted? In Riots there must be Three or more It may be you'll lay Ten, but it is sufficient; I hope, if you prove it upon any Three of them.

The Difference is betwixt Contracts and Crimes, for Contracts they are joynt, but Crimes they are in their own Nature several.

Besides, my Lord, though they be out of time, yet this is not to the Abatement of the Indictment; but to the Evidence; how do they know, but we will give it in Evidence that Christopher Knightly was one.

Mr. Mompesson moves it as a Caveat against your giving it in Evidence.

If in an Outlawry against divers they leave out these words, Nec eo­rum aliquis comperuit, that is every day held to be nought, and for that Reason we say, the Quilibet eorum suscepit is necessary too, and without being laid cannot be given in Evidence, and if it be laid, it ought to have time and place.

The Default of appearance must be a several thing, and when he lays it joyntly non comperuerunt, it may be true that all did not appear, if any one made Default; but when you Charge men with a Fact done, though in the plural number, yet it is a distinct separate Charge upon every one.

Robert Lowick those men that thou shalt hear call'd, and personally appear, are to pass between our Soveraign Lord the King, and you, upon Tryal of your Life and Death; if therefore you will Challenge them, or any of them; your time is to speak to them as they come to the Book to be sworn, and before they be sworn. George Ford.

[Page 47]

I do not except against him.

Hold the Book to Mr. Ford.

Look upon the Prisoner, you shall well and truly try, and true Deliverance make, between our Soveraign Lord the King and the Prisoner at the Bar, whom you shall have in Charge, and a true Verdict give according to your Evidence: So help you God.

Thomas Trench.

I have nothing to say against him.

John Wolfe.

I do not except against him.

James Bodington.

I challenge him.

John Raymond.

I say nothing against him.

George Hawes.

I do not except against him.

Thomas Glover.

I challenge him.

Matthew Bateman.

I do not except against him.

James Partherith.

I challenge him.

Joseph Blisset.

I challenge him.

Alexander Forth.

I challenge him.

Françis Chapman.

I challenge him.

Nicholas Roberts.

I challenge him.

Thomas Playstead.

I challenge him.

John Hall.

I challenge him.

William Partridge.

I challenge him.

Peter Levigne.

I challenge him.

Thomas Moody.

I challenge him.

Thomas Ramage.

I do not except against him.

Edward Townesend.

I challenge him.

William Gunson.

[Page 48]

I challenge him.

John Wyborne, he did not appear. William Strode.

I challenge him.

William Wild.

I do not except against him.

William Pitts.

I do not except against him.

William Smith.

I do not except against him.

Moses Cook.

I challenge him.

Benjamin Boltby.

I do not except against him.

Elias Fletcher.

I have nothing to say against him.

Cryer countez. George Ford.

One, &c.

Elias Fletcher.

Twelve Good Men and True, stand together and hear Your Evidence.

Now the rest of the Jury that have appeared are Discharg'd.

Cryer, make Proclamation.

Oyez, If any one can Inform My Lord's the King's Justices of Oyer and Terminer, the King's Serjeant or the Kings Attorney General, before this Inquest be taken of the High Treason, whereof the Prisoner at the Barr stands Indicted, let them come forth, and they shall be heard, for now the Prisoner stands at the Bar upon his Deliverance; and all others that are bound by Recognizance to give Evidence against the Prisoner at the Bar, let them come forth and give their Evidence, or else they forfeit their Recognizance. The Names of the Twelve Sworn are these;

• George Ford. Esq Jur.
• Thomas Trench. Esq Jur.
• John Wolfe. Esq Jur.
• John Raymond. Esq Jur.
• George Hawes. Esq Jur.
• Matthew Bateman. Esq Jur.
• Thomas Ramage. Gent. Jur.
• William Wild. Gent. Jur.
• William Pitts. Gent. Jur.
• William Smith. Gent. Jur.
• Benjamin Boltby, Gent. Jur. and
• Elias Fletcher. Gent. Jur.

Robert Lowick hold up thy hand; which he did. You that are Sworn, look upon the Prisoner and hearken to his Cause. He stands Indicted by the Name of Robert Lowick, late of the Parish of St. Paul Convent-Garden, in the County of Middlesex, Gentleman; for that he, together with Christopher Knightley, late of the same Parish and County, Gentleman; Ambrose Rookwood, late of the same Parish and County, Gentleman; and Charles Cranburne, late of the same Parish and County, Yeoman; not having the Fear of God in their Hearts, nor weighing the Duty of their Allegiance, but being moved and seduced by the Instigation of the De­vil, as false Traytors against the most Serene, most Illustrious, most Mild and most Excellent Prince, our Soveraign Lord, WILLIAM the III. by the Grace of God, of England, Scotland, France and Ireland King, Defender of the Faith, &c. their Su­preme, True and Rightful, Lawful and Undoubted Lord; the Cordial Love and True, and Due Obedience, Fidelity and Allegiance, which every Subject of our said Lord the King, that now is, towards him our said Lord the King, should then of right, ought to bear, withdrawing and utterly to extinguish, intending and Contriving, and with all their strength Purposing, Designing and Conspiring the Government of this [Page 49] Kingdom of England, under him our said Lord the King that now is, our right, duly, happily, and very well established, altogether to subvert, change, and alter; as also the same our Lord the King to Death and final Destruction to put▪ and bring, and his faithful Subjects, and the Freemen of this Kingdom of England, into intollerable and most miserable Slavery to Lewis the French King, to subengate and inthral, the 10th day of February, in the Seventh Year of the Reign of our Soveraign Lord the King that now is, and diverse other days and times, as well before, as after, at the Parish of St. Pauls Covent-garden aforesaid, in the County aforesaid, falsely, malitiously, devilishly, and traiterously, did Compass, Imagine, and Contrive, Purpose, Design, Intend, our said Lord the King that now is, to Kill, Slay, and Murder; and miserable Slaughter among the faithful Subjects of our said Lord the King throughout this whole Kingdom of England, to make, and cause, and the same their most wicked, impious, and devillish Treasons, and traiterous Compassings, Contrivances, and Purposes aforesaid, to fulfil, perfect, and bring to effect, they the said Christopher Knightly, Robert Lowick, Ambrose Rookwood, and Charles Cranburn, and very many other false Traitors to the Jurors unknown; afterwards, to wit the same Tenth Day of February, in the Year abovesaid, at the Parish aforesaid, in the County aforesaid, and divers other Days and Times, as well before, as after; there, and elsewhere, in the same County, falsly, ma­litiously, advisedly, secretly, and traiterously; and with Force and Arms did meet together, propose, treat, consult, consent, and agree, him our said Soveraign Lord the King, that now is, by lying in Wait and Wild, to assassinate, kill, and murder, and that execrable, horrid, and detestable Assassination and Kil­ling, the sooner to execute and perpetrate; afterwards, to wit, the same Day and Year, and divers other Days and Times, at the Parish aforesaid, in the County aforesaid; traiterously did treat, propose, and consult, of the Ways, Manner, and Means, and the Time and Place, where, when, how, and in what manner, our said Lord the King, so by lying in Wait, the more easily they might kill; and did consent, agree, and assent, that Forty Horsemen, or thereabouts; of whom the said Christopher Knightly, Robert Lowick, Ambrose Rookwood, and Charles Cranburn, would be Four; and every one of them traiterously took upon himself to be one, with Guns, Muskets, and Pistols, loaden with Gun powder and Leaden Bullets; and, with Swords, Rapiers, and other Arms, armed, should lye in Wait, and be in Ambush, the same our Lord the King in his Coach being, when he should go abroad to set upon, and that a certain and competent num­ber of those Men so armed should set upon the Guards of him our said Lord the King then attending on him, and being with him, and should fight with them, and overcome them, whilst o­thers of the same Men so arm'd, him, our said Lord the King, to assassinate, kill, slay, and murder: and they the said Christo­stopher Knightly, Robert Lowick, Ambrose Rookwood, and Charles Cran­burn, their Treasons, and all their Traiterous Intentions, Designs, and Contrivances aforesaid, to execute, perpetrate, fulfil, and bring to effect afterwards, to wit the aforesaid 10th day of February, [Page 50] in the Seventh Year abovesaid, at the Parish aforesaid, in the County aforesaid, divers Horses, and very many Arms, Guns, Pistols, Rapiers, and Swords, and other Weapons; Ammunition, and Warlike things, and Military Instruments, falsly, maliti­ously, secretly, and traiterously did obtain, buy, gather toge­ther, and procure; and did cause to be bought, obtain'd, ga­ther'd together, and procured with that Intent, them, in and and about the detestable, horrid, and execrable Assassination, Killing, and Murder of our said Lord the King, that now is, as aforesaid, to use, imploy, and bestow; and the same promises the more safely, and certainly to execute, do, and perpetrate, he the aforesaid Christopher Knightly, with one Edward King, late­ly of High Treason, in contriving and conspiring the Death of our said Lord the King that now is, duly convicted and attainted, by the Consent and Assent of divers of the Traitors and Conspi­rators aforesaid, the said tenth day of February, in the Seventh Year abovesaid, traiterously did go and come to the place pro­posed, where such intended Assassination, Killing, and Murder, of our said Lord the King, by lying in Wait, should be done, perpetrated and committed, to view, see, and observe, the Con­veniency and Fitness of the same place for such lying in Wait, As­sassination, and Killing, there to be done, perpetrated and com­mitted; and that place being so viewed and observed afterwards, to wit, the same day and year, his Observations thereof to several of the said Traitors and Conspirators, did relate and impart, to wit, at the Parish aforesaid, in the County aforesaid, and the afore­said Charles Cranburn, the same Day and Year there in order, the same execrable, horrid, and detestable Assassination, and Killing of our said Lord the King, by the Traitors and Conspira­tors aforesaid, the more readily and boldly to execute, perpetrate, and commit, advisedly, knowingly, and traiterously, did bear and carry among divers of those Traitors and Conspirators for­wards and backwards, from some to others of them, a List of the Names of divers men of those who were design'd and ap­pointed, our said Lord the King, so as aforesaid, by lying in Wait to kill and murder, against the Duty of the Allegiance of them the said Christopher Knightly, Robert Lowick, Ambrose Rook­wood, and Charles Cranburn; and against the Peace of our said Soveraign Lord the King that now is, his Crown and Dignity, as also against the form of the Statute in such Case made and provided: Upon this Indictment, he has been arraigned, and there­unto hath pleaded Not Guilty; and for his Trial hath put himself upon God and the Country, which Country you are: your Charge is to inquire, whether he be Guilty of the High Treason [Page 51] whereof he stands indicted, or Not Guilty; if you find him Guilty, you are to inquire, what Goods or Chattels, Lands or Tenements, he had at the time of the High Treason committed, or at any time since, to your Knowledge. If you find him Not Guilty, you are to inquire whether he fled for it, if you find he fled for it, you are to inquire of his Goods and Chattels, as as if you had found him Guilty; if you find him Not Guilty, and that he did not fly for it, you are to say so, and no more; and hear your Evidence.

May it please your Lordship, and you Gen­tlemen of the Jury, this is an Indictment of High Treason a­gainst Robert Lowick, Prisoner at the Bar, and the Indictment does charge him with compassing and imagining the Death of the King, and endeavouring to subvert the Government, and inslave this Kingdom of England, and bring it under French Ty­ranny and Slavery, and the Indictment sets forth that Robert Lowick, the Prisoner at the Bar, the Tenth of February, met several false Traitors, and there consulted and treated how to assassinate his Majesty; and agreed, that 40 Horsemen to get together, some to attack the Guards, while others were to assassinate the King in his Coach; and the Indictment charges him likewise, with getting together Horses and Arms for this purpose, to this he hath pleaded Not Guilty. We will call our Evidence, and prove the Fact against him, and we do not doubt but you will do your Duty.

May it please your Lordship, and you Gen­tlemen that are sworn, this is an Indictment of High Treason, in conspiring and compassing the Death and Destruction of the King, the nature of our Evidence against the Prisoner at the Bar.

You will hear Gentlemen by the Witnesses that about Christ­mas last a Conspiracy and Design was set on foot to assassinate the King, and accordingly to accomplish it, there were several persons sent over from France by the late King James, who were part of his Guards, and particularly Sir George Barclay was to be the Head of them; he was a Lieutenant of the Guards there, and he was sent over in January last, and there were a great many Troopers sent over, who were to be under his Di­rection, particularly Mr. Harris, who will give you an account, that he was sent over by order of King James, and he was told particularly King James had a Service for him to do in England, [Page 52] and he hop'd it might be an opportunity to advance him. He was to observe the Orders of Sir George Barclay, and by what Token he should know him; he was to meet him in Covent Gar­den, and he was told he might find him there twice a week in the Square, about six a Clock after it was dark; and that he might know him, he told him, he would have his White Handerchief hanging out of his Pocket, accordingly Mr. Harris came over, and Mr. Hare came with him, and they came and did meet with Sir George Barclay, and they, together with Sir George Barclay, and several others here in England, Mr. Porter, Mr. Charnock, and Sir William Parkyns, did enter into Consultation how to effect it; there were several Meetings about it, and you will find the Prisoner at the Bar was at several Meetings to that pur­pose, and they did undertake, among them, to provide so many Men as might make about the Number of 40, which they thought sufficient for the execuion of this Design.

Gentlemen, you will hear that the Prisoner at the Bar did treat with several persons to be ingaged in it; particularly, about the 5th of February, he sent to one Bertram, and askt him, if he would be ingaged in a Design for King James's Service that was quickly to be executed, without asking of Questions, and after­wards I think he undertook he would; so about the 14th February he met him again, and that was the day before the first time they intended to attack the King▪ and then being so near the time when it was to be executed, he thought it proper to acquaint him with the thing he had ingag'd him in, and he did acquaint him, that the next morning they were to be ready to attack the King and his Guards, and bid him be sure to get his Boots and other things ready for that purpose, and he gave him a Guinea in order to it. Bertram, it seems, on the 15th of February did not come, and the King it seems did not go abroad that day, so they were disappointed at that time; but the Sunday after Ber­tram met him, and Mr. Lowick complained that he had not come upon the Saturday according as he had undertaken; and he told him it would have been the same thing, he would have disappointed them if the King had been in the Field.

Gentlemen, you shall find, that as he thus engaged Mr. Ber­tram, so he was to provide several others; and he did declare, that at his own Charge he had got 2 or 3, he complained of it as a Hardship put upon him, that whereas Mr. Harris had 6 s. a day Subsistance, and was only to take care of himself, he, Mr. Lowick, had at his own Charges ingaged and provided se­veral.

[Page 53] You will find Gentlemen that Mr. Rookwood, who was tried Yesterday, had se­veral Meetings about it, with Mr. Lowick and Mr. Harris; they did think it to be a barbarous thing: but however they were resolved to obey Orders, and the Prisoner in particular said he wou'd obey Orders, tho he thought it a very wicked thing.

Gentlemen, you will find by the Evidence how the Matter was carried on; the Prisoner was to be engaged in it, and did not only imbarque himself in Person, but engaged others, and did treat with them about it. We shall call our Wit­nesses, who will give you a full account of it, and then we shall leave it with you, who we question not will do Justice: First call George Harris; who appeared and was sworn.

Pray will you give an account to my Lord and the Jury, what you know of the intended Assassination, and what part the Prisoner at the Bar had in it.

Begin from the first, and tell your whole Knowledg as you did Yesterday.

On the fourteenth of January, New Stile, I was ordered to wait King James at Dinner; after Dinner was over, I was called in, where was Coll. Parker, and Mr. Hare, at the same time, and King James told me he was very sensible of the good Service I had done him; and now he had an opportunity of doing something for me: I was to go into England, and there to be subsisted, and I was to follow the Orders of Sir George Barclay; the King told me I shou'd find Sir George Barclay in Covent-Garden, with a White Hanker cheif hanging out of his Pocket, on Mondays and Thursdays between the Hours of six and seven in the Evening, and that was the sign I was to know him by, and he ordered me to go to Mr. Caroll, that is Secretary to the late Queen, and Coll. Parher went along with me, and he ordered me ten Lewedóres, and Mr. Hare as much, which Mr. Caroll gave us; and if that were not sufficient, or if we were Wind-bound at Calice, we had Orders to apply to the President of Calice to be furnish'd with what we wanted: Accordingly we went, and the Wind not serving when we came to Calice, we were forc'd to stay there, and our Charges were paid to our Landlady by the President of Calice, according to the Order we received at St. Germains; when the Wind served fair we went on Board, and came to Rumney-Marsh, to one Mr. Hunt's House, and from thence he furnish'd us with a Couple of Horses, and we came the Sandy-way to one Mr. Tucker's, and from thence to Mr. Cross's, and from thence to Graves-end, and from thence to London: We came up in the Night-Tide, and being late when we came to Town. Sun­day Night we lay at an Inn at the lower-end of Gracious-street; the next Day we went to look for Sir George Barclay, but not finding him in Covent-Garden, according to what King James told us, I admired at it; but one Mr. Birken­head meeting my Comrade the next day, said Sir George Barclay desired to see us, and appointed us to meet him, which we did that Night, where Sir George Barclay ask'd us how the King and Queen, Prince and Princess did; he told us at that time he had no Money for us, but in a few Days we shou'd have Money; and accordingly he sent us Money. We had five Guineas but it was at twice, two Guineas at one time and three at another, and this was for a Months Subsistence at Five Shillings a Day, Guineas going then at Thirty Shillings. And afterwards when Major Holmes delivered the Horse, upon Saturday the fifteenth, we had another Guinea that made up what we had to be six Shillings a Day when we had Horses, and five Shil­lings a Day when we had none: and as for Mr. Lowick, the first Saturday which was designed for the Assassination, I happened to be at Mr. Counter's Lodgings in Holbourn, a Confectioners; and there I see Mr. Lowick come in.

Who Lodged there, pray Sir?

[Page 54]

Sir George Barclay and Mr. Counter had Lodgings there, and Mr. Lowick came in there, but I cannot say he staid there any time, I think he went out presently afterwards. The next Week I met Mr. Lowick in Red-Lion-Fields and discoursed with him there about this Matter, and I told him what a barbarous and inhumane thing it was that we shou'd be the Murderers of the Prince of Orange, and that it wou'd render us odious to the World, and that we should be a continual Reproach to our Selves; he did agree it was so: But in conclusion Mr. Lowick said he would obey Orders, and he said Sir George Barclay he was sure wou'd not do it without Orders. That Day when we were walking out we met Sir George Barclay and Major Holmes riding in the High-way up towards Islington, and we spoke to him, for Mr. Lowick told me the Thing was discovered, and his Name was given up, and other Gentlemens, and I think another; and so he told me that one Harrison had told him of it, and forewarn'd him that Night from lying in his Lodging; and he told him that he believed it wou'd not be safe for the rest to lye in their Lodgings, or to that effect.

When he said he wou'd obey Orders, What was the Discourse about?

We were talking of Murdering the Prince of Orange; and not only that, but I do believe that Mr. Lowick is so sensible that what I say is true, and he is a Man of so much Conscience and Honour, that he will not contradict any thing that I affirm or have said here. On Saturday the Two and Twentieth we dined at the Castle, a Tavern or a Cook's Shop, at the end of Red-Lyon-Street. I was much in a Sweat, and he ask'd me what made me so? I told him I had been getting Captain Rookwood's Party ready; and I told him laughing, that Captain Rookwood said I shou'd be his Ayd du Camp, and so I was getting the Men together: says he to me, you may very well do it, for you have Six Shillings a day, and I have nothing. Mr. Lowick, you know what I say to be true, I know not why you lift up your hands; but you did tell me I might very well do it, having Six Shillings a day, and you had nothing, and yet brought a couple of Men at your own Charge, and that their Horses could not be discharged unless you went. These were his Words, my Lord, or to this effect.

What do do mean by being discharged?

I mean this, that I believed he paid for them; and they were waiting at a House till he came.

Why were they to be discharged that day?

The Reason why they were to be discharged that day was, be­cause Captain Rookwood had told him before, that the Prince of Orange did not go out that day; and therefore we went together to walk towards Islington.

What day was that?

The second Saturday that it was to have been executed. I was not a Spy upon any Man's actions: I cannot tell what they did any more than I tell you: I do not wrong you any way in the World, Sir, I am sure on it.

When was it that you spoke with Mr. Lowick about Murdering the King?

[Page 55]

It was Monday, Tuesday, Wednesday, or Thursday, I cannot be exact to the day, but it was one of these days, after the first Saturday; I cannot be positive what the day was.

Well, it was between the two days?

Yes, it was.

How did you know of that Design of Murdering the King?

I was inform'd of it by Captain Rookwood the first Saturday, and I met Mr. Lowick and had this Discourse about it; and afterwards they informed me that Mr. La Rue did not lie at his Lodgings, and the thing was discover­ed, and they believed that Rue had discovered it: And I desire you'll call Mr. La Rue as to this Matter; for I believe he will own it.

How came you to trust him with such a Discourse?

Because we met there at Counter's Lodgings, and we had several times Discourses of it; there was Major Bernard and Captain Rookwood besides, and I always declared against it, as a barbarous inhumane thing, not to be answer'd before God or Man, and that we shou'd be odious to all the World if the thing were effected, as I believed it wou'd not be. I wou'd never shew my Head after such a thing.

Do you remember who began the Discourse of this matter?

I cannot tell that. I can't come to every particular.

You said just now, you apprehended Mr. Lowick to be a Man of Conscience and Honour; Pray what were his Sentiments about it?

His Sentiment was, that he wou'd obey Sir George Barclay's Orders, and he was sure Sir George Barclay wou'd not do it without Orders.

Did not he declare it to be a Barbarous Design?

I can't remember every particular thing that he said; for I am not a Spy upon any Man's Actions.

When you were talking of that Design that you speak of, pray did I consent to any such thing?

I tell you how far you consented; you said you wou'd obey Sir George Barclay's Orders, and you was sure he wou'd not do it without Orders.

Did you see any of Sir George Barclay's Orders?

No, I did not, I was to follow his Orders; but what Orders he had I cannot tell.

What did Sir George Barclay tell you you were to do?

Sir George Barclay declared on the first Saturday that we were his Ja­nizaries, and talked of attacking and bringing away the Garter: I cannot say this Gentleman was by then; and afterwards Sir George Barclay went out and re­turned, and came in again into the Room, and declared that we were Men of Honour, and that we were to attack the Prince of Orange.

[Page 56]

Did Sir George Barclay give the Prisoner at the Bar any Or­ders.

I don't tell you he did.

You say you met Sir George Barclay and Major Holmes upon the Road going to Islington: How do you know the Prisoner was there?

Why, was not I with him? I am very sorry to come upon this Ac­count; but you know it is Truth all that I say; and I am sure you are sensible I do you no Wrong: he met Sir George Barclay and Major Holmes, and he went down and said something to Sir George Barclay in the Highway; what it was I don't know; but I stood, and Captain Rookwood and Mr. Bernard said something to him, which you very well know.

What was it?

I can't tell, Sir.

We do not desire you to tell what you can't tell: Is this all you know?

It is all at present that I recollect.

Then pray swear Mr. Bertram

Pray will you give an Account to my Lord and the Jury what you know of this Intended Assassination, and how far the Prisoner was concerned in it.

My Lord, about the beginning of February last, Major Lowick came to me, and ask'd me if I wou'd espouse a thing with him that might be for my Advantage; I told him that I thought I might espouse any thing that he thought fit to engage in.

Whom did you tell so?

Major Lowick; and he told me it was well, and desired me to ask no more Questions: I did not, but it went on till the 14th of February, when he desired me to be at his Lodgings at Twelve a Clock. I was so, about that time, but he was not within, and I staid till he came in, and he took me up in­to his Chamber, and told me he believed they shou'd Ride out in some little time; and he told me he believed the King was to be seiz'd in his Coach; and he gave me a Guinea to buy me Necessaries.

What Necessaries?

I can't say he named any.

But for what purpose were those Necessaries?

I don't know that he named any thing, indeed.

Well, Did he tell you when you were to be ready?

If you please to give me leave, I'll tell you: He desired me not to be out of the way; and the next Morning I was to meet him at the Purl House in Hartstreet. I did not meet him; and the next time I saw him, I am not positive whether it was the next day after the Fifteenth when I was to meet him at Hartstreet, but did not so; but the next time I saw him he ask'd me why I did not meet him according to his Appointment? I told [Page 57] him, I had some Reason for it, and he answered me again, That he believed, if the King had been in the Field, I would have done the same; but I have not seen him since till I saw him at the Bar.

Had you no Discourse of Horses that you were to pro­vide?

I do not remember any particular thing more than I have told you.

Did he not tell you what the Design was you were to go about?

He did not tell me of any other Design than as I tell you, for he be­lieved I knew of it, I thought so at least; the first time I knew of it was from Mr. Chernock.

What did he tell you was the Design that you should Ingage in for your Advantage upon Friday the 14th, when he gave you the Guinea?

He told me, he believed they should ride out very suddenly, and that the King was to be seized in his Coach.

Did he tell you when the King was to be seized?

No, he did not tell me when, but this was the 14th the next mor­ning I was to meet him at Hart-street, but did not.

Who did he tell you the King was to be seized by?

He did not nominate any one else, for he obliged me not to ask him Questions, nor I did not.

Did he name himself to be concerned?

He named himself so far, as that he believed he should ride out very suddenly.

Was it the next-morning, or the next day?

I cannot say that he named any particular time.

Will they ask him any Questions?

No, I think we shall not.

Pray, Mr. Bertram, will you answer me one Question? What did he say to you when he check'd you for not coming according to his Appoint­ment?

I took it as a kind of a Check; he told me, that if the King had been in the Field, he believed I would have done the same.

There is one thing we must a little Examine this Gentleman to; Were not you under a Necessity before that time that he gave you the Guinea? Pray what Condition were you in?

Under Necessity, Sir! I was never very plentiful of money of late.

Did he never give you a Guinea or two before in Charity, and out of Compassion to your Necessities?

He has given me money several times before, and I believe if I would have ask'd him any money he would have given it me.

[Page 58]

Was this money given you for Charity, or for any other, and what purpose?

I did not ask him for any thing, but he gave it me, and said, There's a Guinea to buy you Necessaries.

What was the Discourse before that?

I told you, he said, he believed they were to ride out very suddenly, and he believed the King was to be seized in his Coach, and he desired me not to be out of the way.

And when he gave you the Guinea to buy you Necessaries, was it immediately after this Discourse?

Sir, it was at the same time.

Did not I give your Wife a Guinea two months before this?

Yes, Sir, I acknowledge I was informed you did, I was not in Town then.

Pray let the Court know that.

Did he tell you, the King was to be seized in his Coach before he told you they were to ride out very suddenly?

No, afterwards; and then he gave me the Guinea.

His Words are not coupled together, they have no relation to one another.

No, but he told him, they were to ride out very suddenly, and the King was to be seized in his Coach, and gave him a Guinea to buy him Necessa­ries at the same time.

There's no doubt he was ingaged in the Design with those other Persons.

And afterwards he rebuked him because he had not met him; and he said, it would have been the same thing, if the King had been in the Field.

What day in the week was it that you failed him?

It was on a Saturday.

Pray, my Lord, we desire to know, who he did understand by the King that was to be seized.

What did he call the King?

He said nothing but the King.

Who did you understand by that?

I leave it to the Court, I am not to interpret Things.

Did he name the Prince of Orange, or King James? Did you think King James was to be seized?

My Lord, I tell you what he said, I am not to interpret his Words.

Do you believe he meant King James, or this King, that was to be seized?

I believed it might be the King here.

Take the Words as they are; he ask'd him before, Whether he would ingage in a Design that might be for his Advantage; on Friday the 14th of [Page 59] February he meets him at his Lodging, and tells him, he was to ride out suddenly, and that the King was to be seized in his Coach, and appointed him to meet him the next morning, and gave him a Guinea to buy him Necessaries.

Pray, has not Mr. Lowick given you Clothes, Linnen and other Things at any other time?

Sir, you have been always ready to serve me, I must acknowledge, and you have been very kind to me.

If you please to give an Account of my Character, whether ever I was guilty of any bloody Thing.

No, Sir.

How long have you known Mr. Lowick?

I believe I have known him this 20 years.

What Behaviour has he been of?

He has always had very good Behaviour, and the best; he has had the best Character of all Mankind.

Did you ever know him inclined to do a rash Action?

Never in my life.

Did you ever know him do a malicious Action?

But he had always the Character of a good Man, and was always ready to serve any Man in his Necessities, and to do Good; he has that General Cha­racter abroad.

Where does he live?

He lived last at Brownlow-street, but he has no Wife nor Family, and so has no fix'd Being.

What was his way of Living?

He was bred a Soldier, and has been abroad.

Where?

In Ireland.

In whose Service?

In the Service of King James.

He knows particularly, that once I was upon a Party and saved 5 Offi­cers from being killed in cold Blood.

What Countryman is he?

Yorkshire.

Was he accounted of a cruel or a bloody Nature?

No, of a quite contrary.

My Lord, I desire to know for what Cause he gave him or his Wife a Guinea.

I know not what that Guinea was for that he gave me the 14th of February any otherwise than as I have told you.

What was the Guinea given to your Wife for?

For that Guinea given to my Wife, it was out of his own Kindness and Goodness to my Family and me.

What was the other Guinea for? You are upon your Oath.

Indeed, Sir, I cannot tell, he gave it me to buy me Necessa­ries.

Was there nothing else mentioned what Necessaries those were to be?

No, Sir, upon my Oath there was not any Particular men­tioned.

What made him so kind to you, pray?

We were both born in a Town, and I believe we are near Re­lated.

You say you are Towns-People, and have been long acquainted, and you knew him in Ireland, pray did you ever know that he saved any People's Lives?

[Page 60]

I was not in that Action my self, but all that were in it gave that Re­lation; that he was very favourable, and did save Peoples Lives, particularly one Captain Harlow, and brought him and others Prisoners, and I remember the thing; it was about a Fortnight before the business of the Boyne, upon a Sunday Morning, that they took those Prisoners, and he did perswade several Parties that he Com­manded, to decline Killing, as much as they could; I was not in this Action, but this I heard of all that were in it, and from the Prisoner.

When he gave you that Guinea, did not he speak any thing of a Horse that was to be provided for you?

Not a word; I never did see a Horse upon that Account, nor was I Master of a Horse, nor was I told I should have a Horse in any respect what­soever.

How could you Ride out as you say they were to do, without a Horse, or without knowing any thing of a Horse to be provided for you?

I did not know of a Horse.

But he said you were to Ride out speedily.

No, he said in general, we should Ride out suddenly.

Who was there besides your self?

No body.

Then that we must mean you and him. And how were you to Ride out without a Horse? Pray mind what you Swear?

I was to meet him the next Morning, but did not.

Pray what cou'd you understand by that, that you were to Ride out suddenly, and had no Horse?

That was understood, that if I did Ride out, I must have a Horse.

Who should you have it from, had you a Horse of your own?

No, I had not.

Did you intend to Hire a Horse?

No, I did not.

Did not you ask where you were to have a Horse?

No, I did not Ask nor Inquire, nor was it promis'd me, I should have a Horse.

Did he tell you where you were to Ride?

The next Morning I was to meet him.

For what, to Ride out was it?

I can't really tell whether it was upon that Account or not.

Whether did he tell you where he was to Ride?

Indeed he did not.

It is very strange that you did not ask him where he was to go, nor ask him for a Horse.

I was so Senseless, that I neither did ask him about a Horse, nor ever knew of any that was to be provided for me.

Did you understand what was meant by the Riding out suddenly?

I did take it to be about the business, the seizing of the King.

Did he compare it to Attacking him in the Field?

[Page 61]

No, he did not; but he said he believed the King would be seiz'd in his Coach; he made no Comparisons.

Pray Mr. Bertram, why did you not meet him, what Reasons had you for not doing it?

I thought it not requisite to meet him.

What had you no mind to the thing?

No, I had not, because I thought the thing very unlawful.

Pray what was that thing you speak of, that you thought was unlawful?

I thought it was about Seizing and Killing the King.

Pray mind, there is no body desires you should speak more then the Truth, but on the other side, being upon your Oath, you are to speak the whole Truth, for if you Conceal any part of the Truth, tho' you have a Kindness for your Countryman Mr. Lowick, who has been kind to you, you will forswear your self, for you make a different Representation of the matter, and make it ap­pear quite otherwise then it is; pray do not straine one Tittle, but let us have all the Truth.

I don't believe, I strain one Bit.

Then tell my Lord, why did not you meet him.

I did believe it was about Seizing and Killing the King, and I did think it to be Illegal.

Why did you think it was about that?

Because Mr. Charnock had told me of it before.

How did you know that was what Lowick spoke to you about?

I did suppose it to be the same, because he desired me at first to ask no Questions, no more did I, but I took it always to be the same thing.

What did he say to you?

He told me he had a business to propose to me, if I wou'd Ingage in, that wou'd be for my Advantage, but I must ask no Questions; talkt of Riding out suddenly, and that the King was to be Seized in his Coach and having heard of it from Charnock, I thought it was the same business.

Then my Lord, we have one Witness more, call Captain Fisher, [He did not appear.] If he does not appear, we shall let them go on, and when he comes in, we can examine him afterwards.

Is he a material Witness?

We do apprehend he is a very material Witness.

If you think him a material Witness, it will not be proper for them to enter upon their Defence, till they have heard the whole Accusation.

The Court staid for Mr. Fisher's coming for near an Hour, and at last he came in and was Sworn.

Who is this?

This is one Captain Fisher.

Pray Captain Fisher, do you know Mr. Lowick, the Prisoner at the Bar?

I have not Talkt with Mr. Lowick since the 8th of February, and then he Talkt that he wou'd be ready to serve his Master to the uttermost of his Power.

What Master?

King James.

What particular Service?

He named no particular Service, but only that he wou'd be rea­dy to serve his Master to the uttermost of his Power.

Where was this?

At the Cock in Bow-street.

Who was in Company?

[Page 62]

There was Mr. Harrison.

Pray give an Account of what you know of this Barbarous bloo­dy Design.

I believe there was a Design to seize the Prince of Orange.

What do you know of it? you say you believe it.

I believe it by my Knowledge, because I was concern'd in it.

By whom was that Design carryed on?

By Sir George Barctay and Mr. Harrison.

What was the Design?

We were to fall upon the Prince of Orange.

You called him so, the Prince of Orange?

Yes, my Lord.

Well, tell us what happened.

It was to have been done the 15th of February, and we met ac­cordingly the 14th, but the King not going Abroad, it was put off.

Who met on the 14th?

I met only Mr. Harrison and Sir George Barclay, then it was put off till the 22th; upon the 21th, we met at the Three Tuns in Holborne, and from thence we came to the Sun Tavern in the Strand, and there was no body but Mr. Harrison and I together, and Sir George Barclay came to us; I believe there were about 14 or 16 in the House; there Sir George Barclay told me, Mr. Lowick was to meet me and two more at an Inn by St. Giles's Pound, and that we were to go toge­ther to seize the Prince of Orange the 22th.

Did you meet him?

I did not meet him, it being put off by the King's not going Abroad.

This does not affect Mr. Lowick at all.

It does not, we acknowledge, but at that time which you speak of, the 8th of February, had you any knowledge of the Assassination.

There was no Assassination at that time, at least it was not then declared.

What was your Discourse about then?

There was Notice of the King's preparing to come for En­gland.

You say Mr. Harrison was there.

Yes, and Talkt very little about the matter, but only that there were Preparations for the King's coming.

What did Lowick say to you?

I have told you all that Mr. Lowick said to me.

Repeat it again.

He said he would be ready to serve his Master, to the uttermost of his Power.

Had you no discourse about an Act of Parliament.

Mr. Lowick said it was not convenient to Talk with more then one at any time, for there was an Act of Parliament on Foot, that under two Witnesses nothing should affect a Mans Life in Treason.

The Act of Parliament was then a making.

When Mr. Lowick said he wou'd serve his Master, what Discourse had you about it.

Mr. Lowick said not a word within, but at the Door he said he wou'd serve his Master to his Power.

What was that, that they wou'd not Talk with above one at a time?

Nothing that was thought Treasonable Practices shou'd be Dis­cours'd of before above one at a time, so I understood it.

Then my Lord we have done.

May it please your Lordship, and you Gentlemen of the Jury; [Page 63] I am of Counsel in this case for the Prisoner at the Bar, and we do hope here is not Evidence sufficient to convict him of High Treason, the Question is not whether there was a Plot or a Conspiracy to Assassinate the King, or to prepare for an Invasion, but all that you are to consider, Gentlemen, is, whether the Evi­dence against Mr. Lowick, be sufficient to convince you, that he did design to Seize and Assassinate the King; there are three Witnesses produc'd, but we think this last Witness, Fisher, his Testimony does not hurt him in the least. We know your Lordship will Declare and Direct the Jury, that the Evidence in a case of Treason ought to be plain, not only with respect to the Fact, that it was done; but also of such Facts as are the Evidences of a man's intentions, and those are not to be Construed by Strains and Intendments, or Implications; unless they be such as Evidently, Naturally, and to common Understanding express the Intention, it cannot be good Evidence in Treason: Now we say that Captain Fisher has said nothing at all that will affect the Prisoner, for al that he says is, that the Eighth of February he said he was ready to serve his Master to the utmost of his Power, and any words as well as these may be Construed to make a Man Guilty of Trea­sonable Intentions; for it might be a Recollection of Favours Received, or it might be a Grateful intent to serve him upon particular occasions▪ but that is no Evidence upon this Indictment. Suppose it was to serve him upon the supposed intended Invasion, yet with submission, that is not Eviednce of the Overt Act laid here; here is no Overt Act mentioned of preparing Arms, or Incouraging Men, or Seducing the King's Subjects in order to the better restoring of the late King James, or the expected Landing of the French, or the like All that's laid to the Prisoner's charge, is the Compasting the King's Death, and a Design to Assassinate him in his Coach, and in order to the Assassination, he was to buy Armes and Horses; now all that he says is quite of another Nature, of a quite different Strain, and has no tendency to this matter, and nothing he says that Lowick shou'd say, but is applicable the other way, and tends more Naturally to the Invasion, then to the Assassination. Your Lordship observes there was some notice taken of what Mr. Lowick shou'd say, concerning the Act of Parliament, that he would not talk with above one at a time; how far when life is concern'd such loose discourse ought to be inforc'd before a Jury I must leave to your Lordship; tho a Man may be Innocent, yet he may be Cautious, and the more Innocent, perhaps the more Cautious; but that is applicable to the Invasion too, and has no Relation to the Treason in this Indictment more than any other. It shows he was more wary then others were, but it is not applicable to the Fact that he now stands charged with. Then the whole of the Evidence depends upon the Testimony of Mr. Harris and Mr. Bertram, and we think they are not two Witnesses to one thing, and what they say must be strained, and intended and presumed, to make Evidence of Treason; for what Mr. Harris says about the Discourses between him and the late King James, about Receiving Orders from Sir George Barclay, and his passage over from France, and the several Stages he and Mr. Hare travel'd, and the Discourses between Sir George Barclay and him; Your Lordship will acquaint the Jury that is no Evidence to affect Mr. Lowick, no [...] what Berkenhead and Hare agreed upon does any way affect Mr. Lowick, for those things may be all true and yet Mr. Lowick innocent of what he stands charged with in this Indictment; he says, that upon the first Saturday he saw Mr. Lowick at the Confectioners, but he cannot say he staid there at all, there was not a word spoken by Mr. Lowick that he remembers then, but what he says that seems to touch, and the only thing that touches Mr. Lowick, in all this Evidence is, that that upon Monday, Tuesday, Wednesday or Thursday, it is a pretty large time, be­tween the Fifteenth and the Twenty second, he was talking with Mr. Lowick about the Barbarity of this business, and that Lowick after all, said he would obey Orders; now with submission, my Lord, to make that to have Relation to the Assassination must be by a forc'd strain'd Intendment; he does not Declare what the Orders were, nay, he does not affirm there were any Orders for the Assassi­nation, [Page 64] but only that he would obey Orders; here's no Order by Writing, no Order by Parole that Mr. Lowick declared he would obey: as to what Lowick declared a­bout his Intention of Riding out and Seizing the King in his Coach; that cannot be in­tended the Order that he was to obey to Assassinate the King, that Order does not ap­pear, there are no footsteps of it in all the Evidence, so that there is nothing in that Testimony that will hurt Mr. Lowick: Then upon the Two and Twentieth when they Dined together, Mr. Harris says, that there was a Discourse of two Men, but it does not appear, nor does the Witness give any account what those two Men were to be for; 'tis true two Men he was to get Discharg'd, but that is not Evidence that these Men were to make a Part of those Forty, neither the words before nor the words after can have that Construction; nay it does not appear it was for any purpose at all, now in the case of Life, where a Man stands at the Bar, we hope such an Evidence shall not be Construed to make a Proof of a Treasona­ble intention, that these were to Assassinate the King, or to make part of the Forty that were to do it, when it does not appear they were there, nor who they were, nor any sort of Notice taken or given upon what account they were, Provided. And then as to Mr. Bertram's Evidence, it is Palpable that his Evidence and whatsoever he says cannot amount to make one Witness to prove an Overt Act within this Statute, and that there must be two Witnesses the Law requires; what does Mr. Bertram say to prove any Man Guilty of Treason, but only by Intendment, Thought or Suspicion? It is true, Mr. Bertram's Evidence would be good enough to commit a Man upon Suspicion for Treason, but to Convict him it cannot be; he says that in the begining of February he spoke to him and, told him he would imploy him in a business that would be for his Advantage, but he must ask no Questions; this is very dark, for the meaning of it does not appear what was intended by it; it might be one thing as well as another, it might be to imploy him in his Family, or it might be to send him of a Journey, or it might be the taking of a Farm, but to apply that as an Evidence of a charge of High Treason, that we think is very hard, and we hope your Lordship will think so too; but then he comes and tells you further of a Discourse upon the Fourteenth, of his Riding out suddenly, and that the King was to be seized in his Coach, but he does not say that he was to seize him, nor that he would be concern'd in it, nor that he knew of it, nor did Declare at what time it was to be done, nor any thing certain whether it was a Prophecy, or a Dream, or a Story that he re­lated again, or what it was; there is no Connection between the Riding out suddenly and the other words of seizing the King in his Coach; then he says he gave him a Guinea to buy him necessaries, the Man acknowledges Mr. Lowick several times had given him in Charity Money, Cloaths and other things, and gave his Wife a Guinea, as you observe, in Charity, but he gave him this Guinea on pur­pose to buy him necessaries, and it is hard that a Man's Charity to a Country­man, to a Townsman, to an ancient acquaintance of Twenty Years standing, to a Person that he had been familiar with formerly, and known to have lived well, should be mis interpreted and strain'd, to make it a giving him Money as Subsistance, and a Reward for the doing such a Mischievous Bloody Act; We say his Charity to this Man formerly is inconsistent with the Supposition that he cou'd be Privy to such a Barbarous Design now, and we hope the Jury will con­sider the Character that that very Man has given to my Client, for the same Witness gives you an account of his Behaviour all along, that he was not given to Rash and Barbarous Actions, nor Guilty of any Malicious thing, nay, that he prevented Mischief and the Killing of People in cold Blood. We must leave it to the Jury's Consideration, and your Lordships Direction. All these things that they say may be true, and Lowick be not Guilty, and the acquitting of Mr. Lo­wick will be no Reflection upon the Witnesses, nor any discredit to the Testimony that has been given of this Conspiracy, but we hope 'tis do­ing Justice to this Man, the Witnesses not coming up to the Proof of what is laid in the Indictment. We must beg your Lordships patience a little [Page 65] longer, and call some Witnesses to give you an account how long they have known Mr. Lowick, and what his real Character is; they will tell you he is a peaceable good Man, and shew you that his Temper and Inclination was rather to a sober quiet Life than to lead him to such action, and that they cannot think him likely to be tempted to be concerned in such a Design; and then we must leave it to the Jury. Call Mrs. Yorke.

I believe there is no body here that knows me but will give me that Character.

Mrs. Yorke came in and was Sworn.

Pray Mrs. Yorke how long have you known Mr. Lowick.

About a Dozen or Fourteen Years.

What sort of Disposition is he of?

He is a Civil Honest Man as ever I saw in my life, or ever knew of; and I never heard otherwise from any one that knew him.

What was he in his Actions, was he Malicious, or good Natured?

As good a Natured Man as ever I saw.

Has he the Reputation of a Cruel Bloody minded Man?

Quite the contrary. He lodged in my House half a year, it is not quite a year ago since he lay at my House. He was the most Obliging Man that ever lay in my House: he was so Civil to all the Lodgers that they admired him for his good­ness, and made them in love with him.

How came he to Lodge at your House?

He came from his other Landlady, they could not agree, his other Land­lady was a sort of a Shrew, and therefore he did not care for staying there; and I desired his Company because I knew him to be so Obliging and Civil a Man.

Where is your House?

In Bloomsbury.

What is his way of living, is he a Man of an Estate?

I cannot tell, I did not inquire into that.

Had he no Imployment to get his Living by?

I do not know any thing of that, I never inquired into it; he paid me very Honestly for my Lodging, and he is a very good Man for any thing I know.

Then call Mrs Mosely.

She came in and was Sworn.

Well, what do you ask this Gentlewoman.

Pray Mrs. Mosely will you tell my Lord and the Jury: do you know Mr. Lowick?

Yes Sir, I do.

How long have you known him?

Near twenty Years.

Pray give an account upon your knowledge what Disposition and Temper he is of, whether he is Rash, Malicious, Bloody, and ill Natured.

He is a Peaceable, Vertuous, Honest Man, and a Man that I never heard or saw that Creature that could speak any ill thing of him in my life; nor I never heard him speak any thing Maliciously of any Creature in my life to do them a prejudice: so far from that, that he is a Man has a Character, perhaps, above any Man that I could speak or hear of in my life. I speak it even above my own Rela­tions, they may have some Passions; but I never see that Gentleman in a Passion in my life. He has lain in my House several times, and he has had Company come to him, but never any that was Scandalous one way or other. I never saw him Fudled; nor ever heard him Swear, nor any one accuse him of any of those things.

Call Dr. William Mew.

The Prisoner has something to say for himself my Lord, but we must submit to your Lordships Consideration, and the Juries, whether there be any Evidence but what is dark and savours of Suspicion only; Suspicious it is, but whether there be any Evidence that is plain and direct as the Law requires in Cases of High Treason, we must leave it to your Consideration, for we apprehend there is none.

[Page 66]

My Lord, as to this Business, the thing that I stand accused of, the Assas­sination, I know nothing in the World of it, nor never did directly or indirectly; and if I am Convicted, and could to save my life be the death of the poorest Child in the World, I would not save my life to do it.

Look you, I would put you to make answer to some things; you were at Sir George Barclays at the Confectioners in Holborn: and it is sworn he came over upon such a Design. Then you were with Mr. Harris at Red Lion Fields, and there he was speaking to you of the horridness of the Design that was to be Executed upon the Kings Person the Saturday before, and he told you he did mislike it; and thereupon you answered that you would obey Orders, and that Sir George Barclay had Orders for it, otherwise he would not do it.

Sir George Barclay never spoke one word of it to me.

Every body knows now upon what Design he came over from France, and when Mr. Harris showed this satisfaction with the thing, you made that answer to his Discourse.

He never said one Syllable to me of it. I trust to your Lordships Judg­ment, and the Juries Mercy.

And then I would have you answer to another thing, when you Dined together on the Saturday the two and twentieth, what were those two Men that could not be Discharged without you?

My Lord, I know nothing in the World of two Men.

You went to Discharge them, for the King did not go abroad that day.

I know nothing of it.

He Swears this, and that's as to him; but then as to Bertram, what Design was that, that you were to ingage Bertram in for his Advantage, and he was to ask no Questions?

My Lord, He is a poor Man, and my Countryman, and I have at all times, from time to time, for this seven Years, helped to Subsist him and his Fa­mily, that he will not deny, and I have several times given him both Cloths and Mony.

Then I would ask you again, When he came to your Lodging on Friday the Fourteenth of February, and you told him the King was to be seized in his Coach, and said that we were to Ride out very suddenly, and you appointed him to meet the next Morning; and because he did not meet you blamed him, and said it would have been the same thing, if the King had been in the Field? Look you, I would have you give answer to this if you can.

I remember nothing in the World of it, not a word I assure you, and to the best of my remembrance I did not see him in two days after.

My Lord, I must beg leave to Answer to the Objection that the Counsel for the Prisoner have made, that there are not two Witnesses to prove the Overt-Act laid in the Indictment, and so the Law is not satisfied. In Answer to that, I desire your Lordships favour to observe how the Evidence is, and then we shall see whether there are not plainly two Positive Witnesses of the Overt-Act, by agreeing to Assassinate the King. The first Witness is Mr. Harris, Your Lordship observes that Mr. Harris gives an account that Mr. Lowick was at Sir George Barclay's Lodgings the first day that it was to have been Executed; and that afterwards between the Fifteenth and the two and twentieth, those being the first and second Days that this was to be done, when he and Rookwood, and the Prisoner Lowick, were walking together in Red Lion Fields; and there had some Discourse about the intended Assassination, and the Barbarity and Bloodiness of it, and Mr. Harris and Mr. Rookwood were averse to it. Mr. Lowick said he would obey Orders, and he was sure Sir George Barclay would not do it unless he had direct Orders for it, that was twice Repeated by him, as Harris Swears: and afterwards Mr. Harris tells you that the Two and Twentieth he Dined with Mr. Lowick, and Mr. Lowick observed that Mr. Harris came in in a great Sweat, and asked him how it happened, he said he had been about to get ready Rookwood's Party that were to seize the King, for he was to have one Party. Says Mr. Lowick to him, you need not Grudge to do it, you have six Shillings a day, I [Page 67] have nothing; and yet I, at my own Charge, am to provide two. This is as Posi­tive Evidence as well can be of his being privy to the Design; and his ingaging People at his own Charge, shows a great deal of forwardness and Zeal in the Pri­soner to the Business. My Lord, I think this is positive and plain Evidence, and not only made out by Inferrences and Constructions, as Sir B. Shower says, but plain positive Proof. The first day he was with several of them, and when they Dis­coursed of the thing afterwards, he declared he would obey Orders; and what could those Orders be but for what they were Discoursing of, and nothing was Discoursed of but this Design they were ingaged in, and this was to justifie the thing, and take off the apprehension of the Barbarity of it: this is Harris's Testimony. The next Witness is Bertram, and he tells you that the Fifth of February the Prisoner sent for him, and when he came to him, he asked if he would Ingage in a Business that might be for his Advantage, and ask no Questions: so at that time he did not acquaint him what the thing was, but that shows it was a thing that was to be kept Secret at that time, in regard he did not think fit to acquaint him at the first Instance. But the Fourteenth of February, when he met him again, the day before the first time that it was to be put in Execution; Bertram Swears he told him that they were to Ride out the next Morning, that must be Lowick and Bertram, for there was no Body else there; and that the Prince of Orange was to be seized in his Coach. Was it possible the Prisoner could be ignorant of it? When he ingaged him to go upon a Design with­out asking Questions; sent for him the day before, acquainted him they were to Ride out the next Morning, and that the King was to be seized in his Coach, and bid him be ready against next Morning, and gave him a Guinea at that time; the Witness says it was for Necessaries, but he does not pretend that it was for Charity, as for­merly. And that must be for Necessaries for that purpose that they were then Dis­coursing of, when he desired him to be ready the next day, and gives him Mony to buy him Necessaries: What can that be, but Necessaries for what he was to be ready for? And then he did not come the next day, and he tells you why, because he thought it a very wicked and unlawful thing, and so he disappointed him; and the next time Lowick Chid him, and told him he would have served him so if the King had been in the Field. This is plain, though I believe Bertram does Speak as tenderly as he can, being his Friend and old Acquaintance, and is willing to say as little as he can of him; so that I believe no body thinks but what Bertram says against the Pri­soner is true, and what he Swears is plain and positive. To show that Lowick did ingage in the Design, he acquainted him with it the Fourteenth, by telling him the King was to be seized, and they were to Ride out, and he was to be ready the next day.

He does not say they were to Ride out the next day.

No, the words were we are to Ride out suddenly.

I think he did say they were to Ride out the next Morning.

No, Call him in again.

The Words were, we shall Ride out suddenly, and bid him meet him next Morning; and afterwards Chid him for not meeting accordingly, and told him it had been the same thing if the King had been in the Field.

If you cannot agree upon the Evidence, you must call in the Witness.

My Lord we are agreed upon the Evidence, it was sud­denly.

Well then, there is no occasion, have you done on both sides.

Yes my Lord, we submit it to your Lordship.

Gentlemen of the Jury, this Prisoner at the Bar, Robert Lowick, is Indicted of High Treason, for Compassing and Imagining the Death and Destru­ction of the King by an Assassination; you have heard what Evidence has been given upon this Indictment. And in the first place, It is proved to you that there was a Design to Assassinate the King; which was to be carried on under the Conduct and Management of Sir George Barclay. The Question that you are now to Consider of, is whether the Prisoner at the Bar was concerned or ingaged in the Prosecution of that Design. There have been two Witnesses produced, who have given their Evidence, and have been very strictly Examined, and Observations have been made upon the Testimony they have given.

[Page 68] The first Witness is Mr. Harris, and he gives you some account of the Original of this Design. He tells you how he was at St. Germains, and Introduced to the late King James, who did express a great kindness for him, and told him that he had an Opportunity of doing something for him that would be for his Advantage: and that he and one Hare, who was present at that time, should go into England (for it seems they were both together Introduced by Collonel Parker) and should be Subsisted in England, and thereupon Directions were given them what Course they were to take; which was to go to Calice, and to each of them ten Lewedores were given for their Charges, and they were acquainted that if it happened that they should lie there so long for want of a Wind to bring them over hither that their Money was spent, Provision should be made for their supply there. They had farther Directions, that when they came into England they should apply themselves to Sir George Barclay, and follow his Orders, with Instructions how to find him; being told that Sir George Barclay would be walking in Covent Garden every Monday, and every Thursday Night, about the hours of six or seven a Clock, and that they should know him by a White Handkerchief that was to hang out of his Pocket.

Mr. Harris further tells you, That they did come to Calice in order to Embark for England, and there they happened to stay a considerable time, even so long that their Mony would not defray their Expences there, and they found it true as it was promised them; for the President of Calice paid the Reckoning for them at the place where they Lodged; and afterwards they came into England, and landed in Kent, and came to Rochester, and from thence to London. About the latter end of January Old Stile (for it should seem it was the 14. New Stile, which is the 4. Old Stile, they were of St. Germaines) he tells you that he did go the first Monday, after their arrival, into Covent Garden, to look after Sir George Barclay, but then mist him. But afterwards his Companion, Mr. Hare, met with one Berkenhead, and complaining that they had not met with Sir George Barclay according to the Directions they had abroad: where­upon, by the means of Berkenhead, they were brought to the Speech of Sir George Barclay, who gave them reception, and owned that he had Authority to Subsist them; but said he had not then Mony, but shortly should, and when he had they should be sure to receive their Subsistence. He tells you, that after this, Sir George Barclay gave them Subsistence Mony, paying them at the Rate of five Shillings a day when they had no Horses, and when they had, six Shillings a day: so they put themselves alto­gether under his Command and Conduct. He has given you an Account what Dis­course he had with Mr. Rookwood, from whom he discovered what the Design was in which he was to be ingaged. And the Design to Assassinate the King was first in­tended to be put in Execution on Saturday the 15. of February, at which day Mr. Harris, and others, being at Sir George Barclay's Lodgings; Sir George said they were his Jam­saries, and afterwards Carest them, and said they were Men of Honour, and told them that they were to Attack the Prince of Orange and his Guards; but it seems the King not going abroad that day, they lost that Opportunity.

Truly, Then Mr. Harris began to be a little troubled, and concerned, when he understood the meaning of his being under Sir George Barclay's Conduct. And he says that after that first Saturday the 15. and before the next Saturday the 22. he met with Lowick, Rookwood, and Bernarde, and he was complaining of his being ingaged in such a Design as this was. He called it then the Murder of the Prince of Orange, and said it was a Barbarous thing, and he did not like it, nor Rookwood neither; but as for Mr. Lowick whether he disliked it or no, I know not, but he made Answer to him I will obey Orders: says he Sir George Barclay has Orders for it, or otherwise he would not do it.

Then you are told further, that after this, on Saturday the 22. Mr. Harris Dined with Lowick at a Cooks at the end of Red Lion Street, and being there together, Harris being in a Sweat, and was asked the reason by Lowick, he said he had been giving of Orders for the getting some Men together that were to go under Rookwood, and Lowick told him he might very well do it, for he had Pay 6 s. a day; but says he, I am to Sub­sist two Men, and have nothing at all. Mr. Harris wished him to go to Sir George Barclay, and Complain of it to him, but he said he would not; but it seems, it be­ing then understood by them that the King did not go abroad that day, Lowick said he must go and Discharge the two Men, and went about it. This is the Sum and Substance of Mr. Harris's Evidence against Mr. Lowick.

[Page 69] The next Witness is Bertram, and he tells you that sometime before the Fifteenth of February, which was, as I told you, the very first day that they did design to assassinate the King, Mr. Lowick sent for him, and told him, that he would put you upon a Business that shall be for his Advantage, if he would undertake it without asking any Questions, this was sometime before, but the certain Day Bertram does not remember; but he tells you farther, that on Friday the Fourteenth of February, he was with Lowick at his Lodgings, and he said unto him, that the King, he did believe, was to be seized in his Coach, and we are to ride out suddenly, and then he gave him a Guinea to buy him Necessaries, and withal, bid him meet him at the Purl-House in Hart-street next Morning; and Bertram tells you, he had understood what this Design was, for he had it before from Chernock, and did forbear to go the next Morning, because he did dislike it. After this Mr. Lowick met him and chid him for disappointing of him, in not meeting him as he directed, for says he, it would have been the same thing if the King had been in the Field: This is the sum and substance of the Evidence that Bertram has given against him.

Now Bertram, being cross-examined on the behalf of the Prisoner, says he hath known him a great while, and that he is a Man of a peaceable and fair Disposition, very charitable, and that he has given him Money before, and particulary a Guinea to his Wife in his absence.

Indeed I might have mentioned the Evidence of Fisher to you, but that is but circum­stantial, and does not come home to the Case, but being given it may be mention'd, and that is, about the Eighth of February, Fisher had some Discourse with Lowick, and it seems there was notice taken of the intended Invasion, and Lowick said he would serve his Master faithfully; and that the Witness thought was meant of the late King; and he said at another time, that he would not discourse with above one at a time, because of the late Act of Parliament that was then a passing, relating to High-Treason, that required two Witnesses. Now, I say, this is not any Proof against the Prisoner, but it is a Circumstance that may shew his Inclination to the late King.

The Council for the Prisoner have insisted upon the Insufficiency of the Evidence that has been given on behalf of the King, and have said, that the late Act of Par­liament requires two Witnessesses, which is true, but not two Witnesses to any one Overt-Act; but if there be two Witnesses, one to one and another to another Overt-Act, that is sufficient; but they say that it is not so in this Case. In the first place they ob­ject against the Evidence that is given by Harris, they say it is short, that must be left to your consideration; whether the Evidence that is given by Harris, concerning Mr. Lowick, does prove to your satisfaction, that he consented and agreed to the Assas­sination of the King, you are to weigh the Evidence, when it is sworn that when Harris, Rookwood, and the Prisoner were walking in Red Lyon Fields, and talking of this horrid Design, and Harris complained that it was a barbarous thing to murther the Prince of Orange, as they call'd him, you must consider what Answer Lowick did make about obeying of Orders, then his subsisting of Men at his own charge without Pay, and complaining of his having no Pay, and his discharging them the last day that the Assassination was intended, that I must leave to you, whether or no this is not an Evidence, if you believe the Witness, to satisfie you that he was engaged in this Design.

Then Gentlemen he has also been desired to give an Answer to this Question, and to tell upon what Design he was to employ Bertram that should be for his advantage; but he was to ask no Questions, and afterwards whether he did tell him the King was to be seized in his Coach, and they were to ride out suddenly and bid him meet him the next Morning, and when he did not meet him, he said it would have been the same thing if the King had been in the Field. If this be an Evidence of Mr. Lowick's engaging in and agreeing and consenting to the Design, then here will be another Witness against the Prisoner besides Harris.

Gentlemen, you are to judge of this matter and of the Evidence. It is true, we are not to put, in the case of a Mans Life, any forced and violent Constructions upon any Words or Discourses; but if the Evidence be plain and clear, tho he did not say in ex­press Words, that he did design to assassinate or kill the King; yet, if upon the whole Discourse that past between them it appears plainly, clearly, and satisfactorily to you that he did consent and agree to this Design, or was engaged in it, here's another Wit­ness, I say, to prove him guilty, besides Harris, you are to consider the whole Evidence, the subject matter of Discourse, and if you are satisfied, I say, that he was engaged in such a Design by the Proof of Bertram, as well as of Harris, then there are two Wit­nesses, which is as much as the Law requires.

[Page 70] But, indeed, the Council have called several Witnesses to prove that the Prisoner has lived very peaceably and quietly; one Woman says she has known him Twelve Years, and that he lodged at her House, and that he was a Man of great Temper and Can­dor, and not disorderly, but had a general good Esteem and Character: And then there is another, Mrs. Mosely, that proves the like, and says, she has known him these Twenty Years, and she says no Man has a better Character: And Mr. Bertram hath said that he was not of a rash or bloody Temper.

Now Gentlemen, I must leave it to you upon the Evidence that you have heard, there are these Witnesses that have been produced, and there are these Circumstances that appear in the Case; if you are satisfied upon this Evidence that has been given, that the Prisoner Mr. Lowick, did consent to and engage himself in that Design of assassinating the King, then you are to find him guilty; if you are not satisfied, you are to find him not guilty; you have heard your Evidence, and had best consider of it.

Then an Officer was sworn to keep the Jury, who withdrew, and staid out about half an hour, and then returned.

Gentlemen of the Jury answer to your Names. George Ford.

Here, &c. And so of the rest.

Are you all agreed of your Verdict?

Yes.

Who shall say for you?

Foreman.

Robert Lowick, hold up thy hand.

Look upon the Prisoner, how say you? Is he guilty of the High-Treason whereof he stands indicted or not guilty?

Guilty, my Lord.

What Goods or Chattels, Lands or Tenements had he at the time of the Treason committed, or at any time since?

None, to our knowledge, we do not find any.

Then hearken to your Verdict, as the Court hath recorded it. You say that Robert Lowick is guilty of the High-Treason whereof he stands indicted, but that he had no Goods, Chattels, Lands or Tenements at the time of the High-Treason commit­ted, or at any time since to your knowledge, and so you say all.

Yes.

Discharge the Jury.

Gentlemen of the Jury, the Court discharges you, and thanks you for your service.

Mr. Attorny, Will you have the Prisoners set to the Bar?

Yes, if your Lordship please.

Then the Keeper of Newgate brought Rookwood and Cranburn, and all three were set to the Bar.

If your Lordship please to give Judgment against the Prisoners that are convicted.

Ask them what they have to say for themselves in arrest of Judgment.

Robert Lowick, hold up thy Hand; you stand convicted of High-Treason, in conspiring the Death of the King by Assassination, what can you say for your self why the Court should not give Judgment against you, to die according to Law.

No, no, he need not kneel; if you have any thing to say, Mr. Lowick, we will hear you.

I throw my self upon the Kings Mercy.

Ambrose Rookwood, hold up thy hand,

you stand convicted of the same High-Treason, for conspiring the Death of the King by Assassination, what can you say for your self why the Court should not give you Judgment to die according to the Law.

[Page 71]

All that can be said has been said already, and so I shall say no more.

Charles Cranburn, hold up thy Hand, thou standest convicted of High-Treason, in conspiring the Death of the King by Assassination, what canst thou say for thy self, why the Court should not give the Judgment to die according to Law?

I have nothing to say but what I have said already.

Then Cryer make Proclamation.

O, yes, all manner of Persons are commanded to keep silence while Judgment is in giving, upon pain of Imprisonment.

You the Prisoners at the Bar, Robert Lowick, Ambrose Rookwood, and Charles Cranburn, you have been indicted, and upon full and clear Evidence have been convicted of High-Treason; a Treason that was advanc'd to the highest degree both of Malice and Mischief against the King and Kingdom; you design'd to assassinate the King with an intent to subvert the State, and by the introducing of a foreign Power to de­stroy the antient Liberty and Constitution of England.

Our French and Popish Enemies, by whom you were imployed in this bloody Enter­prise, did very well know, that the Wisdom and Courage of his present Majesty has re­scued this Kingdom from that Slavery and Oppression which they often threatened to bring upon us; they knew that under his Government we have been protected in the enjoyment of our Religion, Laws and Liberty for several Years, and that his Majesty is the Head of the Protestant Interest, and the Protector and Preserver of the Liberty of Europe, and that upon the Preservation of his Life and the Safety of his Person, the Good and Happiness of multitudes of People do depend, which the French King's Pride and Am­bition has been ready to take hold of any opportunity to enslave and oppress.

Your being engaged in such a horrid Design against so precious a Life, and to be the bloody Instruments to give that dismal Stroke, which would have brought Mi­stry and Desolation upon so many Men, renders you worthy to undergo a greater and more severe Punishment than by the Law of England can be inflicted; but that there is no greater provided for such Criminals, is to be imputed to the antient Honesty and Integrity of English Men, who, when they fram'd this Constitution of Government, never imagin'd England should produce such degenerate Wretches, as would endeavour by Plots and Contrivances to betray their Country to a foreign Yoak, and subject them­selves and their Fellow-Subjects to the slavish Dominion of Strangers.

Your Crime being so great it is now high time for you seriously to reflect upon it; and tho you deserve to suffer the greatest of Punishments, yet I have that Compas­sion for your Persons, that I wish heartily you would make use of that Opportunity which is now put into your Hands, to repent. And since you are adjudg'd by the Law un­worthy to live here, that you will make preparation to appear at another Tribunal, where you must have another Tryal, and without an hearty and sincere Repentance, receive a more severe Sentence. I hope this Calamity, and the Judgment that is to fall upon you, will be an Admonition to you to take better advice in the last part of your time which is left you, than you have done in the whole course of your Lives, and that you will be wiser than to follow the Direction of those Guides whose Princi­ples and Doctrines have so far perverted and corrupted you, as to engage you in such a bloody Design. I shall leave you to make that Preparation for another World, which is proper for Men in your condition, and pronounce the Judgment of the Court, which the Law hath appointed and the Court does award;

That all of you be conveyed from hence to the Prison from whence you came, and from thence every one of you is to be drawn upon a Hurdle to the place of Execution, where you are to be hanged by your Necks, and to be cut down while you are alive, your Privy Members are to be cut off, and your Bowels to be cut out of your Bodies and burnt in your view, your Heads are to be cut off, and your Bodies to be divided into four parts, and your Heads and Quarters are to be disposed where his Majesty shall appoint. And I pray God to have Mercy on all your Souls.

[Page 72]

I humbly desire the liberty of my Wife and Relations to come to me, and such Divines as I shall desire may have free recourse to me.

You shall have that liberty that is allowed to all Persons in your condition.

I must beg the same Favour, to have some few Friends and Relations come to see me without a Keeper.

You shall have a Warrant for your Friends to come to you.

I beg your Lordship that you would please to specifie it in the Warrant, because they would not grant hitherto without a Keeper being by.

You mean, you would have your Brother permitted to come to you.

Yes, and some few Relations.

What is usually done in such Cases let it be done.

My Lord, I desire the same thing, that my Sister may come to me, and that the little time I have I may be private with my Friends.

If your Lordship please, they may give the Names of those they would have admitted to them, and then the Keeper will attend your Lordship for your Di­rection.

That the Keeper must take care of, lest they allow such a Liberty as may indanger an Escape; for their being alone may prove a dangerous thing.

It is reasonable they should tell who they are, before they be ad­mitted.

You allow them, I suppose, to have private Discourse in the same Room, if a Keeper be by.

No, my Lord, we never had.

Such as your Lordship thinks proper to be admitted to them may have Discourse with them in private, if the Keeper be in the Room, but no others but such as your Lordship shall allow; for we know what has been the effect of a Liberty of access to some Prisoners.

Let us have a Note of those Names that you would have come to you, and we will give Directions that shall be proper in it.

Sheriff of Middlesex, you must take them into your custody till Execution is done.

Then the Keeper took away the Prisoners, and the Court adjourned the Com­mission of Oyer and Terminer to Hicks's Hall, at Three of the Clock that Afternoon.