Bar might be present and this same Treason might be discoursed of and agitated and there might be a Consult about this Business and yet it is not necessarily implied that he must consent and agree to send Chernock into France upon which the great stress of the Indictment lies therefore we say these words having no Nominative Case the Indictment cannot hold Mr. Att. Gen. My Lord as to this Objection it will receive a very plain Answer Our Indictment begins and sets forth that Peter Cook the Prisoner at the Bar did imagine and compass the King's Death and did adhere to the King's Enemies and these are the Treasons and then it sets forth the Overt Act that in Execution of the traiterous Compassings Imaginations and Adhesions aforesaid Ipse Idem Petrus Cook together with Sir William Parkins Mr. Chernock Sir John Friend and others did propose and consult to procure from the French King Forces to invade this Land ulterius he and they did agree to send Chernock to the late King James Mr. J. Rookeby There 's the first naming of James the Second late King of England and there is no eidem Jacobo I promise you L. C. J. Treby Well that Mistake is over Pray go on Mr. Attorney General Mr. Att. Gen. My Lord as to this Objection of Sir Barth Shower he would have Ipse Idem Petrus repeated over again and he says that we lay a distinct Over-Act with a different Time and Place Now that is a mistake too it is not a different Time and Place but the same Time and Place and it mentions that cum R. Chernock J. Friend c. cum aliis Proditoribus conveniebat consultabat c. Which he says may refer to Sir J. Friend or Charnock but if you look into the Frame of the Sentence that can never be Mr. J. Rookeby Petrus Cook is the Nominative Case that governs all the Verbs Mr. Att. Gen. And there is no other Nom. Case in all the Indictments but Petrus Cook except it be in a Parenthesis and that saves the Rule of Grammar if there were any thing in it that it must refer to the last antecedent Sir B. Shower When it comes to the Clause that he did procure Horse and Arms there the Nominative Case is repeated L. C. J. Treby It would not have made it worse if they had made it so here but the Question is whether it be necessary Sir B. Shower Indictments ought to be precisely certain but this we say is not so Mr. Att. Gen. But here is as much certainty as to the Person as can be that he did consult with such and such about such things and further the same Day did agree with the same Traytors to do so and so Mr. J. Powell Indictments it is true ought to be plain and clear but I do not see but here is as much certainty as can be that he did such a Day consult and further the same Day did agree with the same Persons Sir B. Shower VVho did agree my Lord Mr. J. Powell He that did consult with them before and that is Peter Cook Mr. Att. Gen. You 'd have had us to have put it to every Verb I believe Sir B. Shower In Indictments no Presumption ought to be used but the Facts ought to be directly and positively alleged Mr. J. Powell It s true there should be no Presumption and there is none here for certainly this is a plain Assertion of Fact L. C. J. Treby Here are two things that are set forth First That Peter Cook did meet with Sir John Friend Sir William Parkyns and others and then and there did consult with them and consent to procure an Invasion and joyn an Insurrection thereto And Secondly Further with the said Traytors did agree to send Chernock into France Now what is the Nominative Case to this Agreement Is it Sir John Friend and Sir William Parkyns That 's impossible for they could not be said properly to meet and consult with themselves every one of them with his own self and the rest And then the Number if it had referr'd to them should have been Plural but here it is Singular agreavit and the sense is no more than this That then and there Mr. Cook did meet with such Persons and did consult with them about such and such Matters and further did agree with them to do thus Sir B. Shower The meaning is not to be forced and strained by Inference or Presumption but it ought to be express and plain L. C. J. Treby Nay you cannot express it better you may make a Tautology of it if you will Sir B. Shower The Paragraph is long my Lord and therefore requires the more care to have those Repetitions that are necessary L. C. J. Treby Your Objection to this Paragraph is that it is too long but repeating the same Nominative Case to every Verb would make it much longer Sir B. Shower It cannot be understood to mean Peter Cook without Presumption which ought not to be in an Indictment Mr. Att. Gen. And as to Sir Bar. Shower's first Objection his Copy is right too and he mistook the place Sir B. Shower You shou'd have given me that for an Answer Mr. Att. Gen. Nay you should have taken more care and not have made the Objection L. C. J. Treby Truly I think it is hardly possible to have made this better if it had been otherwise than it is Mr. Serj. Darnel My Lord we think we have a good Fact of it which we rely upon and therefore do not so much insist upon these Exceptions tho in duty to our Client we mention that which we think is necessary and we submit to your Lordship Cl. of Arr. Set Peter Cook to the Bar. Which was done You the Prisoner at the Bar these good Men which 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 wou'd 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 Cryer Call Sir John Sweetapple Sir John Swetapple Here. Cook My Lord Chief Justice if your Lordship please I am advised L. C. J. Treby Pray Sir speak out that we may hear what you say and let the Cryer make proclamation for silence Which was done Cook My Lord before the Jury is called I am advised that if any of the Jury have said already that I am guilty or they will find me guilty or I shall suffer or be hanged or the like they are not fit or proper Men to be of the Jury L. C. J. Treby You say right Sir it is a good cause of Challenge Mr. J. Rokeby That will be a sufficient cause if when they come to the Book you object that and be ready to prove it Cook Which is Sir John Sweetapple He was shewn to him Cl. of Arr.
went to Flanders to expose his own Person for our Protection and the Protection of the Liberties of Europe there was a Conspiracy to Murder him before he went to Flanders which it seems they were not ripe for then but immediately after he was gone to Flanders you will hear there were formal Meetings of several Gentlemen and Persons of Quality among whom the Prisoner at the Barr was one There was a Meeting in May last Year after the King was gone to Flanders and this was at the Old King's Head in Leaden-Hall-street and there were present my Lord of Aylesbury my Lord Montgomery Sir William Parkyns Sir John Freind Mr. Chernock all which Three last have suffered the Punishment of-the Law for their Treason already and there were also Mr. Cook the Prisoner at the Barr Mr. Porter and Mr. Goodman these Men did meet together ' to consider of the best Ways and Means of Encouraging and Inviting the French King with an Armed Force to Invade this Kingdom They considered that That was a proper Opportunity and did treat of several Arguments that might perswade to it First that the King was gone to Flanders and so was not in Person here to Defend us and that the Troops to make good such Defence were in a great measure drawn thither to assist the Allies against the French Power They did think likewise that at that time there was a great Discontent and Dissatisfaction in the Nation though I think in that they were greatly mistaken and I believe and hope they will always find themselves so to think that the People of England are so little sensible of that which is the means of their Preservation as to hearken to any Discontents to Incourage a French Power to come into England to destroy our Religion and Liberties that indeed they did apprehend though they were mistaken and I believe they always will when they go upon that ground Gentlemen These Persons thinking this a proper Opportunity did agree to send a Messenger into France upon this Message To go to the late King James and perswade him to desire and prevail with the French King to assist him with Ten thousand Men 8000 Foot 1000 Horse and 1000 Dragoons and to incourage him they promised their Assistance here as soon as he came over and undertook that between them they could furnish and wou'd raise 2000 Horse to meet him at his Landing and joyn upon such an Invasion Gentlemen At this Meeting this was agreed upon by all that were there whereof the Prisoner was one and they did agree to send Mr. Chernock who has since been executed and a principal Incourager of the Design and Actor in it he was the Messenger that was appointed to go upon this Errand and Mr. Chernock was resolved to go but desired another Meeting of these Gentlemen to know if they continued in their former Resolution that he might have all the Assurance that was Reasonable to give the French King Incouragement to make the Invasion Accordingly another Meeting was had of most of the same persons that were at the Meeting before particularly the Prisoner at the Barr was at that second Meeting which was in Covent-Garden at one Mrs. Mountjoy's who keeps a Tavern next door to Sir John Fenwick's Lodgings there they met upon the same Design and upon Consultation had and the Question ask'd they did agree to continue in the former Resolution and upon that immediately Mr. Chernock went into France to sollicit Forces from thence to Invade us but it happ'ned as it seems that the French King's Forces were otherwise imployed so that he cou'd not spare so many at that time and this Return was brought by Chernock to the Gentlemen that imployed him That he had spoke with the late King who gave him that Answer That the French King cou'd not spare so many Men at that time but he thank'd them for their Kindness Gentlemen This will be the nature of Our Evidence to show that the Prisoner at the Barr was concerned in that part of the Conspiracy which relates to the French Invasion and if he be guilty of that in point of Law he is as much guilty of the Conspiracy to Depose and Murder the King as if he had been concerned in the other part of Assassinating his Royal Person and I believe no body can think that those that were to act in the Assassination wou'd have attempted to ingage in such a desperate Design if it had not been for the Incouragement of the French Invasion that was to second them afterwards if they succeeded so that no body can extenuate the Crime of the Invasion because as to the Horridness of the Attempt it is less Black than the other they are both Crimes of a very high nature and equally High-Treason and if we prove the Prisoner Guilty of this part we hope you will find him Guilty Mr. Soll. Gen. My Lord we will call our Witnesses and prove the Matter as it has been opened Call Captain Porter and Mr. Goodman Mr. Serj. Darnall Now my Lord we must desire that That may be done which our Client desired before and which your Lordship was favourably pleased to promise that the Witnesses may be examined a-part L. C. J. Treby Let it be so Who do you begin with Mr. Soll. Gen. We begin with Captain Porter my Lord. L. C. J Treby Then let Mr. Goodman withdraw Mr. Baker Let Mr. Goodman go up Stairs and we will call him presently Mr. Soll. Gen. Swear Captain Porter which was done Captain Porter Do you know Mr. Cook the Prisoner at the Barr Capt. Porter Yes my Lord. Mr. Soll. Gen. Do you remember a Meeting of some Gentlemen at the King's-Head Tavern in Leaden Hall-street Capt. Porter Yes I do Sir Mr. Soll. Gen. Then pray give an Account of the Company that were there the Time when and what passd Capt. Porter My Lord the last Year we had two Meetings the First was in May the other was the latter end of May or the beginning of June the First was at the Kings-Head in Leaden-Hall-street there were my Lord of Aylesbury my Lord Montgomery Sir John Fenwick Sir John Freind Sir William Parkyns Mr. Chernock Mr. Cook and my self Mr. Goodman came in after Dinner at this Meeting it was Consulted which was the best way and the quickest to Restore King James and hasten his Return into England several Discourses and Proposals there were at last it was agreed to send Mr. Chernock to the late King to borrow of the French King Ten thousand Men 8000 Foot 1000 Horse and 1000 Dragoons to be sent over into England to assist the King's Restoration Says Mr. Chernock thereupon This the King can do without your sending and I wou'd not go upon a foolish Errand What will you do to Assist in this Matter the Company desir'd him to promise King James That if he wou'd send word when he Landed and where they wou'd be sure to meet him at his Landing
Act of Parliament to take Exceptions to the Indictment before this Jury sworn as we did before the other Jury sworn since all that is quite set aside L. Ch. J. Treby Yes truly I think that may be Mr. Attorn Gen. But these Gentlemen would have done well to have given notice of their Exceptions Sir B. Shewer My Lord I shall not stand upon an Exception which I think I might take to the word Turmas in the Indictment which whether it be Troops of Men or Horses or what it is does not appear but I think we have an Exception to the cheif Overt Act laid in the Indictment and that we presume if my Brief be right will be sufficient to set aside this Indictment The Indictment charges That Mr. Cook did agree with other Traytors to send Mr. Chernock into France to the said late King James and King Jamâ—s is never mentioned before in all the Indictment that is one Exception that we have that there is no late K. James mentioned in the Indictment before this if my Copy be right if it be otherwise I suppose they will find it it is laid that Mr. Cook did agree to send Cherneck as a Messenger into France eidem nuper Regi Jacobo and no Rex Jacobus mentioned before Then there is another Exception and that 's this They come and say that whereas there was a War with France which is only in the Indictment by way of recital or rehearsal of an History Quod cum per magnum Tempus suit mode fit c. Mr. Cook the Premisses knowing did compass and imagâ—ne the Kings death and did adhere to the said Kings Enemies such a day Now my Lord I do think that this can never be maintained for that Cum quoddam Bellum c. being an Historical Narrative is not positive enough For adhereing to the Kings Enemies being one of the Treasons laid in the Charge there ought to be a War at the time of the adhesion and of necessity then that ought to be presented by the Jury for tho your Lordships can Judicially take notice of War or Peace yet you cannot take notice of it at such a particular time and the reason is from the Notion that is in my Lord Coke in his 3d Institutes Cap. Treason That adhesions to Rebels is not adhesion to the Kings Enemies for a Rebel is not said to be an Enemy but it must be adhereing to such an Enemy as between whom and the King there was War at that time and consequently it ought to be more positively averred in the Indictment than it here is but as to the Overt Act of Mr. Cooks consulting and agreeing to send Chernock over to the said late King James to give him notice of what was agreed upon between them when King James is not named before that can never be got over with submission Mr. Baker It is a mistake of your Copy Sir Bartholomew Shower Mr. Att. Gen. I have looked into the Record and it is Jacobo Secundo nuper Regi not Dicto Sir B. Shower Then with submission my Lord they cannot try us now for we ought to have a true Copy of the Indictment Mr. Baker Upon Demand But you never demanded it Sir Barth Shower Yes it was demanded Mr. Baker Who demanded it Sir B. Shower Our Sollicitor Burleigh Mr. Baker No he did not I gave it him officiously Mr. Att. Gen. With submission my Lord it is no Objection at all that their Copy is wrong That should have been before the Prisoner had pleaded for the words of the Act are that he shall have it so many days before to enable him to plead and he cannot be put to plead unless he have a Copy of the Indictment so long before and at Rookwood's Tryal it was said by the Court it could not be alleged after Plea pleaded Mr. Burleigh The Copy was given to me publickly in Court Mr. Soll. Gen. Why did not your Sollicitor compare it with the Indictment Mr. Att. Gen. They might have compared it by the Clerk's reading it to them but they will not admit the Prisoner's Sollicitor to see the Original because the Act expresly says they shall not have a Copy of the Witnesses Names Sir B. Shower The Officer is to deliver a true Copy of the Indictment Mr. Att. Gen. No the Party is to demand it by himself or his Agent and then he is to have it and if he be denied he ought to apply himself to the Court who will order the Delivery of it but we stand upon it that they cannot take this Exception now after they have pleaded for the intent of the Copy is to enable him to plead L. C. J. Treby The Copy by the Act of Parliament is to be delivered to the Prisoner his Attorney Agent or Sollicitor if they require the same and here it seems there was no requiring of it but it was voluntarily given and now you have lapsed your time of making the Exception of wanting a Copy by having pleaded to the Indictment whereby you have in effect admitted and declared either that you had a true Copy of it or that you did not think fit to require one for the use of the Copy is to better enable the Prisoner to plead But when you did plead you took upon your self to be well able to plead without the help of a Copy which you might have had upon the asking for Sir B. Shower Then my Lord there is another thing in the Indictment that in this Overt-Act there is a new Time and a new Place and a new Verb and a new Fact alleged and no Nominative Case it is alleged that Peter Cook at first with others did so and so and then the first of July to bring the Treasons aforesaid to effect there alibi c. which is very loose for I know not whence the Venue must come did traiterously with Chernock Friend c. consult to procure Diversas Turmas Legiones c. to join with them in England and then it comes ulterius such a Day Year and Place did traiterously agree so and so and not say who now this is neither by express words nor Rule of Grammar to be referred to the Prisoner at the Bar it does not say Ipse Idem Petrus Cook now my Lord that the King's Counsel thought it necessary in every OvertAct is plain because those words are put in every other Clause of the Indictment in those Clauses that goe before and those Clauses that come after then if they will take it that this Clause must refer to the next Antecedent that will not do for the next precedent Nominative Case is either Friend or Chernock So that this is without a Nominative Case and the Presidents in my Lord Coke's Entries 361 and all the other Books have the Nominative Case repeated where there is a new Time and a new Place and a new Fact alleged now it might be true that the Prisoner at the
in the War aforesaid And to Stir up and Procure those Foes and Enemies the readilier and more boldly this Kingdom of England to Invade the Treasons and Trayterous Contrivances Compassings Imaginings and Purposes of the said Peter Cook aforesaid to Perfect and Fulfil also the same First day of July in the Seventh Year abovesaid at London aforesaid in the Parish and Ward aforesaid He the said Peter Cook divers Horses and very many Arms Guns Muskets Pistols Rapiers and Swords and other Weapons Ammunition and Warlike Matters and Military Instruments Falsly Maliciously Secretly and Trayterously did Obtain Buy Gather together and Procure and to be Bought Gathered together Obtained and Procured did Cause and in his Custody had and detained to that Intent To use the same in the said Invasion War and Rebellion against our said Lord the King that now is Him our said Lord the King of and from the Regal State Crown and Government of this Kingdom of England to Depose Cast down and Deprive and Him to Kill and Murther and the Designs Intentions and all the Purposes of him the said Peter Cook aforesaid to Fulfil Perfect and fully to bring to Effect against the Duty of his Allegiance and against the Peace of our said Sovereign Lord 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 has pleaded Not Guilty and for his Tryal hath put himself upon God and his Country which Country you are your Charge is to inquire whether he be guilty of the High-Treason 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 if you find him not guilty you are to inquire whether he fled for it if you find that he fled for it you are to inquire of his Goods and Chattels as if you had sound him Guilty if you find him not Guilty nor that he did fly for it you are to say so and no more and hear your Evidence Mr. Mompesson May it please your Lordship and you Gentlemen that are sworn this is an Indictment for High Treason against Peter Cook the Prisoner at the Bar and the Indictment sets forth That whereas there has been an open and cruel War for a long time and still is between his Majesty King William and the French King the Prisoner at the Bar not weighing the Duty of his Allegiance the First of July in the Seventh year of the King's Reign Did Compass and Intend to Depose and Deprive the King of the Title Honour and Dignity of the Imperial Crown of this Realm and likewise to put the King to Death and did adhere to the King's Enemies and to fulfil these Treasons he did Consult with Chernock and several other Traytors who were mentioned there and some of whom have been found Guilty of Treason and executed for it to send over to the late King James to perswade the French King to send over Soldiers and Arms to invade this Kingdom and to raise an Insurrection and Rebellion in it and to Deprive and put the King to Death and to compleat these Treasons it further sets forth That the Prisoner at the Bar did provide several Arms and Horses and this is laid to be against the Duty of his Allegiance against the King's Peace Crown and Dignity and against the Form of the Statute in that Case made and provided to this he had pleaded Not Guilty and for Tryal put himself upon the Country and Gentlemen if we prove these Facts laid in the indictment it s your Duty to find him Guilty Mr. Att. Gen. May it please your Lordship and you Gentlemen of the Jury the Prisoner at the Bar stands Indicted for High Treason Cook My Lord Chief-Justice if your Lordship pleases before the Witnesses are Examined against me I intreat you that they may not be both in Court together that one may not hear what the other swears tho' I suppose it is the same thing for they have been together both now and the last day L. C. J. Treby Mr. Cook I must tell you it is not necessary to be granted for asking for we are not to discourage or cast any Suspicion upon the Witnesses when there is nothing made out against them but it is a Favour that the Court may grant and does grant sometimes and now does it to you tho' it be not of necessity they shall be examined apart but at present this is not the time of Examination for the King's Counsel are now to open the Evidence before they examine the Witnesses but when the time comes for the Witnesses to be called and examined the Court will in favour to you take care that your Request be complied with Mr. Att. Gen. May it please your Lordship the Prisoner stands Indicted for High Treason in Compassing and Imagining the Death and Destruction of his Majesty and likewise in adhering to his Majesty's Enemies these are the Treasons specified in the Indictment the Overt Acts that are laid to prove these Treasons are That he with several other Traitors named in the Indictment did Meet and Consult and agree to send over Chernock into France to invite the French King to make an Invasion upon the Kingdom and did provide Arms for that purpose Gentlemen the nature of the Evidence that you will have produced to prove the Prisoner Guilty of these Treasons lies thus It will appear to you that there has been for some time a Conspiracy carried on by several Traytors and Wicked Persons to subvert the established Government of this Kingdom and destroy the Constitution of England by a Foreign Invasion of the French You will hear that this Conspiracy was laid wide and consisted of several parts one part was that of Assassinating his Majesty's Royal Person and that was to be done first as a Preparation and Encouragement to the French to invade the Kingdom the other part was the inviting the French King to invade us and the Prisoner at the Bar is accused of being concerned in that part that relates to the Invasion of this Kingdom by a French Power and tho' it may be the other part that of Assassinating the King be the Blackest part of the Conspiracy yet if the Prisoner at the Bar has been ingaged in the inviting a Foreign Power to invade the Kingdom my Lords the Judges will tell you in Point of Law that is as much an Overt Act of the Compassing the Destruction of the King and People of England and the Subversion of our ancient good Constitution as if he had been concerned immediately in the other part the Assassination But now Gentlemen that the Prisoner was ingaged in Inviting the French to Invade us you will hear proved by several Witnesses that there having been a Design last Year just before his Majesty
Hackney Coach And as to the Master of the House who says he does not know me I have Dined several times there four or five times with Sir John Friend and one particular Day above all the rest I remember I was not well and I went down Stairs to the Bar and said I pray can you get me a little Brandy He said Yes he would help me to some of the best in England And he brought me up some which I like very well And thinking he had a Quantity of it I askt him what I shou'd give him a Gallon for a Parcel But he said He had but a little and I am sure he has seen me there five or six times Mr. Att. Gen. Then set up that Master of the House Cock again Which was done Come Sir you hear what Mr. Goodman has sworn and mind it you are upon your Oath You said just now that you never saw Mr. Goodman before Cock No upon my Word Sir I don't know that ever I saw him before Mr. Att. Gen. Do you remember nothing of his being with Sir John Friend at your House Cock No upon my Word Sir Mr. Att. Gen. Nay you are upon your Oath Nor do you know nothing of your giving of him Brandy Cock No upon my Oath I do not remember any such thing Mr. Att. Gen. That is a very safe way of swearing I profess Mr. Conyers He remembers the particular time when he was sick and you offer'd to sell him some Brandy Mr. Att. Gen. No he askt him what he should give him for it a Gallon But Mr. Cock did you ever see Goodman in your House since my Lord of Aylesbury and they were there Cock No upon my Word Sir I did not and I never had but two Gallons of Brandy in my Life at a time and I never had any Cask or any thing of that nature to sell any out of Mr. Att. Gen. Who used to be with Sir John Friend at your House Cock There used to be Mr. Richardson and Justice Cash and Col. Cash Mr. Goodman Mr. Richardson was there that day I could almost have remembred the particular day but I cannot be positive only we were in the same Room where the Consultation was at the further part of the Room Mr. J. Rokeby You Friend the Master of the House you hear what Mr. Goodman says He says he was with Sir John Friend at your House and being not well he askt for some Brandy and you told him You 'd give him some of the best in England And he propounded to you then to sell him some of it but it seems there was no Bargain made Do you remember any such thing of one that was with Sir John Friend that spoke of buying of Brandy when he was sick Cock No upon my Word I do not Mr. Att. Gen. Then set up Mr. Porter who stood up Pray Mr. Porter look upon that man in the black Perriwig what Name did he use to go by Mr. Porter He used to go by the Name of Edwards Mr. Att. Gen. Had he any other Name Mr. Porter Yes Douglas Mr. Att. Gen. He has so many Names that we don't know which his is true Name Mr. Porter pray what else do you know of him touching his being concerned in the Conspiracy Mr. Porter I know not any thing of my own Knowledge but his Name was put down in the List that Mr. Chernock sent me of his men and Mr. Delarue read his Name there Mr. Sol. Gen. Mr. Porter you were a Witness upon the Trials of Sir John Friend and Sir William Parkyns did you give Evidence that Mr. Goodman was in the Room at the same time when the Consultation was Mr. Porter Yes Sir Mr. Att. Gen. Well you hear that these People have sworn that Mr. Goodman did not come till my Lord of Aylesbury went away nay indeed that he was not there at all Mr. Porter My Lord upon my Oath he was there before my Lord Aylesbury went away and Mr. Goodman bowed and took leave of my Lord as he went out of doors Mr. Att. Gen. What time did my Lord of Aylesbury go away Mr. Porter It was about an hour and a half or two hours after Dinner and he was in the Room when my Lord went away for he took his leave of him at the door Mr. Cowper Do you remember the manner of Mr. Goodman's coming in Mr. Porter Mr. Goodman sent up his Name to me and I told the Company and promis'd for him that he was a very honest Man and much in King James's Interest and then with their consent I went down and brought him up Mr. J. Powell How long time do you think there was between Mr. Goodman's coming in and my Lord of Aylesbury's going away Mr. Porter I cannot tell that I do not remember exactly how long it was Mr. J. Powell Was it a quarter of an hour or half an hour Mr. Porter A great deal longer for we had discoursed of the whole business after Mr. Goodman came into the Room Mr. Conyers How long were they there after Mr. Goodman came in Mr. Porter It was very near two hours after he came in before they went away they did not go away 'till six a Clock and he came in at four as near as I can remember Mr. Att. Gen. Then my Lord we have done Sir B. Shower Then I beg the favour of a word or two my Lord. May it please your Lordship and you Gentlemen of the Jury I am of Counsel in this Case for the Prisoner at the Bar and I must beg your Lordship's patience and your favour Gentlemen to make a few Observations upon the Evidence that has been given for we humbly insist upon it in point of Law that here is not sufficient Evidence before you to Convict the Prisoner You are Gentlemen to have respect and regard to your Consciences and the Oaths which you have now taken to give a Verdict and make true Deliverance between the King and the Prisoner you are not to go according to your own private Opinions nor according to publick Fame nor according to common Report nor according to the Verdicts in other Cases nor according to the Confessions or Dying Speeches of Criminals who have been Executed whether made by themselves or by others for them but you are to go by the Testimony of Credible Witnesses and if you have not the Evidence of two Credible Witnesses before you my Lords the Judges will inform you how the Law stands That by the Statute of Edward the Sixth and the New Statute for Trials of Treasons there must be two Witnesses to prove the Prisoner guilty of the Overt Act of the Treason that is laid in the Indictment and whether there have been two Credible Witnesses produced before you is the Question that you are to consider upon your Oath and Conscience that is whether you are satisfied here be two such as the Law requires The Question is not meerly
Exception against the Legality of his Evidence but tends only to his Credit and nothing else Now tho' it be a black Crime to endeavour to poyson another yet that does not totally destroy any Man's Credit if it did then the other Gentleman Mr. Porter has confess'd himself Guilty of a greater Crime than that for which Mr. Goodman is Convicted by this Record for he owns himself one that was in that Design of Assassinating the King And Mr. Goodman owns himself too Guilty of a greater Crime that what 's objected to him which is that of High Treason and I hope if he may be believ'd when he owns himself guilty of High Treason which is a greater Crime than poysoning a private Subject or guilty of such a Design as the Assassination of the King which Mr. Porter has charg'd himself with and notwithstanding which they have not offer'd that as an Exception against Mr. Porter's Evidence for they very well know his Evidence has been Receiv'd and Credited Mr. Goodman may be Credited tho' Guilty of the Crime objected to him And the constant Practise in all Tryals of this kind hath been that it does not take away the Witnesses Evidence however it affects his Credit which in this Case is supported by the Concurrent Testimony of Mr. Porter And so then I say we have two Legal Witnesses notwithstanding all the Exceptions to prove Mr. Cook guilty of the Crime for which he is Indicted Then they go on further and produce other Witnesses First they produce one Edwards a Person that is Committed for High Treason himself and under Suspicion of his being to be one of those that was to have a hand in the Assassination but his Evidence goes no further than that Mr. Goodman told him he was to be a Witness against Mr. Cook and either he the Witness or Mr. Cook must suffer and That it was a foolish thing to be Hang'd My Lord there is nothing at all in this matter that takes away Mr. Goodman's Evidence It is very plain Mr. Goodman had forfeited his Life and must do something to save it and I think he could not do a better Service to entitle himself to the King's Mercy than to discover those that were equally guilty with himself 'T was his Duty to have done it if he had not been in Danger and if he hath done no more than what was his Duty I hope that is no Objection against his Testimony They have produced likewise a Drawer of the Kings-head Tavern one Crawford and he says he attended in this Room while this Company was there But then he goes a little further than the Councel or the Prisoner would have had him for they called him to prove that Mr. Goodman was not there when my Lord of Ailesbury my Lord Montgomery and Mr. Cook were there But when the Drawer comes he knows nothing of Mr. Goodman's being there at all He says Mr. Cook was there but not Mr. Goodman and yet he does acknowledge that Mr. Goodman might be there and he not see him come up He acknowledges he attended upon other Company as well as this so that it is plain in the nature of the thing and his own Confession that Goodman might be there This cannot take off the positive Evidence of Mr. Goodman and Mr. Porter who both swear That Goodman was there But then they produce another Drawer and that is one Huntley and he gives the same Account only indeed he says He was there all the while they were at Dinner But that is nothing because it is acknowledg'd both by Mr. Porter and Mr. Goodman That he was not there at Dinner-time but he might be there after Dinner and yet Huntly could not see him at Dinner He tells you likewise he pass'd up and down in the Room afterwards and did not see Mr. Goodman there but yet he might be there and he not see him Then they produce the Master of the House and he gives much the same Evidence in effect which his Servants do That he did not see Mr. Goodman there all the while but he says something that is a little incredible He can be positive that Mr. Goodman was not there while my Lord of Ailesbury was there but he cannot be positive that he was not there afterwards He tells you he met my Lord of Ailesbury and my Lord Montgomery upon the middle of the Stairs coming down and he is sure Mr. Goodman was not in the Room at that time Now is that possible that he could be sure of that when he owns and cannot but own That Mr. Goodman might go into the Room and he not see him So that he has made a strain in his Evidence that it is very little to be Credited which was not designed so much for the advantage of Mr. Cook as for the advantage of somebody else And in itself it is almost an impossible thing that it should be true by what he offers as the Reason of his Evidence But then Gentlemen you are to consider that all these three Witnesses if they swear true do falsifie not only Mr. Goodman who swears That he was there but they likewise falsifie the Evidence of Mr. Porter and for that Reason I ask'd Mr. Porter the Question Whether he did not give the same Evidence against Sir John Friend And if what he swears now be not true neither was it true when Sir John Friend was Try'd for he was the only Witness at that time against Sir John Friend for this meeting and therefore these mens Testimony tends to overthrow Both Witnesses as well as One And I must tell you that if Mr. Goodman be not a Legal Witness because he has sworn a thing that is not true then Mr. Porter is not a good Witness who has sworn the same thing viz. That Mr. Goodman was there and then you ought to acquit the Prisoner because there is no Witness against him at Law for there is the same Evidence against Mr. Porter that there is against Mr. Goodman as to this matter Then Gentlemen as for the Character of Mr. Cook they say he is a good English Protestant I hope he is so but it is plain that Religion does not vary the Case 'T is within the reach of every man's memory that is here that the same things have fallen upon other Gentlemen that have had the same Character particularly Sir John Friend and Sir William Parkyns who both said the same things in the same place That they were True Protestants of the Church of England But that is no manner of Evidence that will be of weight against Positive Oaths Now Gentlemen it is fit likewise you should reflect upon another thing What is it that should engage Mr. Porter and Mr. Goodman or invite either of those two Gentlemen to give a False Evidence against the Prisoner at the Bar It does not appear that there was any Injury done by him to them to provoke them to it so that it could
he not see him because he was not there all the time he says Sir John Friend used to dine at his House and came to his House once a Week and he had seen some of the rest but they did not frequent his House as Sir John Friend did He says the Company din'd about 2 a-Clock and the last of them staid till about 8 or 9 and that the Door was shut as is usual when Company is in a Room but no body was forbid to come there But to establish the Credit of the Evidence on the King's part they did produce Mr. Goodman and Mr. Porter again Mr. Goodman does acknowledge so far to be true that my Lord of Aylesbury went away first but says that himself was not wholly a Stranger to this House for he had dined there four or five times with Sir John Friend and particularly one time he being sick and asking for some Brandy the Master of the House said he would help him to some of the best in England and Mr. Goodman would have bought some of him But the Master seems not to own that and says he does not remember any thing of it But then comes Mr. Porter again and he says positively that Mr. Goodman was there and that he did speak with the Company and complemented my Lord of Aylesbury when he went away and went part of the way towards the Stairs with him and he does well remember it by this Token that when Mr. Porter was told Mr. Goodman was below he mentioned him in the Company as a trusty Man that was fit for the Conversation and then Mr. Porter went and fetch 't him up and Mr. Goodman was there near two Hours and they discours'd all this matter in that time in the Presence of the Prisoner and the rest and he says it was about six a-Clock before my Lord of Aylesbury and my Lord Montgomery went away and then there was Opportunity enough for this Discourse and Consult that they speak of The Prisoner has offered another sort of Evidence First the Confidence of his own Innocence that he was abroad three Weeks after this Conspiracy was discovered and they have produced Mr. Treganna Mr. Peachy and Mr. Nichols who prove that he never absconded but was abroad and appeared openly for three Weeks after till such time as he was taken This the King's Counsel say is no proof that he is not Guilty and their Evidence untrue They say he might have a Confidence and the rather because he is not charged with the Assassination for at that time these Witnesses speak of nothing was discovered and publick but the Assassination for it was before Sir John Friend's Trial and then was the great Discovery of the Secret of the Invasion Then he shews further as to his Conversation that he is a Man of a very sober Life never was known to Swear that he Drinks but little and is a Godly Man and often says his Prayers As to that the King's Counsel on the other side tell you that has been pretended to by other People too and the Question is not about Religion but this Fact that you are now to try Whether he be so Religious or no as he pretends or whether he be Sincere in his Devotion that is not so much the matter now but the Question is whether he has offended in this Kind as he stands Accused They produce a Gentleman one Mr. Hammond and he says that he is a very Consciencious Man and particularly is a great Lover of his Country and he has often heard him declare a Detestation of an Invasion by a French Force and wish Success to the Fleet but that which he remembers chiefly was about the time of the Discovery of this Plot. The King's Counsel answer to this that a man may use such kind of Expressions perhaps to Cover his Guilt and in the Reply to Sir Barth Showers Observations it was taken notice of by Mr. Solicitor what we all cannot but remember that the like Evidence was given as to Sir John Friend that he did detest an Invasion and was present at the Common Prayer when King William was pray'd for and declared against Plots and that if they catched him in the Corn they might put him in the Pound These things a man might say and it is the lightest Evidence that can be given being Discourses out of Mens own mouths who will never proclaim their own Guilt and therefore it is the weakest Defence that can be offered But Gentlemen you are to consider the other Evidence that has been produc'd by the Prisoner given by several Witnesses and who are upon their Oaths now as well as the King's Witnesses And his Counsel say their Witnesses but particularly the three upon whom they chiefly rely have no Objection made out against them and no man's Testimony ought to be Presumed to be false And it must be taken notice of that they can speak only according to their Belief grounded on their Observation and Memory that they did not so far as they observed or remember see Mr. Goodman there as 't was most probable they should if he had been But 't is possible they might overlook or forget the rather for that they were not of the Company but in and out up and down and Mr. Goodman was not there at Dinner when their Attendance was fixt and constant It ought to be considered also that here are several Circumstances some of which seem very pregnant It is agreed on all hands that the Prisoner Dined there with those other seven persons concerning Four of whom we must conclude nothing but concerning three of them we in this Court may take notice they are Attainted of High Treason and so it is evident that the Prisoner was for a long time a Companion of three Traytors and had a Conversation with them I do not find that he had any Occasion to be there nor any of the rest of the Company Concerning my Lord of Aylesbury indeed it is said he proposed to treat about a Hogshead of White Wine But that seems to be casual and not the end of his coming and Dining with this Company there But be that how it will that relates to his Lordship alone But for the others I do not find they do pretend any Occasion of meeting there and therefore it leaves it the more suspicious And 't is the more so because it was managed so privately and cautelously They were not attended according to their Qualities The Lords went away together in a Hackney-Coach that was called as they had come thither in another The rest thought fit to stay there till it was dark and as soon as it was so went away There was some extraordinary Cause for all this It did import the Prisoner to shew that it was for some good Cause and Purpose And further it is observable that this House was a place which as the Master says none of this Company did use to resort to