of which Thomas Vaughan a Subject of our said Lord the King that now is was Commander with several French Subjects Enemies of our said Lord the King to the Number of 15 Persons in a Warlike manner to take and destroy the Ships Goods and Moneys of our said Lord the King and his Subjects and against our said Lord the King to wage War upon the High-Seas within the Jurisdiction of the Admiralty of England And that at the time of the said War between our said Lord the King and the aforesaid Lewis the French King Tho. Vaughan late of Galloway in the Kingdom of Ireland Marriner being a Subject of our said now Lord the King as a false Rebel against the said King his Supreme Lord and not having the fear of God before his Eyes nor considering the Duty of his Allegiance but being moved and seduced by the instigation of the Devil and altogether withdrawing the cordial Love and true and due Obedience which every true and faithful Subject of our said Lord the King ought by Law to have towards the said King and the said War as much as in him lay against our said Lord the King designing and intending to prosecute and assist The said Tho. Vaughan on the said 8th day of July in the said 7th Year of the King being a Souldier aboard the said Ship of Warr called the Loyal Clencarty in the Service of the said Lewis the French King And being then on the High-Seas within the Jurisdiction of the Admiralty of England about Fourteen Leagues from Deal did then and there by force and Arms falsly maliciously wickedly and Traiterously aid help and assist the Enemies of our said Lord the King in the Ship of War called the Loyal Clencarty And afterwards the said Thomas Vaughan in the Execution and Performance of his said aiding helping and assisting Maliciously Falsely and Traiterously sailed a Cruising to several Maratime Places within the Jurisdiction aforesaid by Force and Arms to take the Ships Goods and Money of our said Lord the King and his Subjects against the Duty of his Allegiance the Peace of our said Lord the King and also against a Statute in that Case made and Provided And the said Jurors for our said Lord the King upon their said Oaths farther represent That the aforesaid Thomas Vaughan as a false Traytor against our said Lord the King further desinging practising and with his whole strength intending the common Peace and Tranquility of this Kingdom of England to disturb And War and Rebellion against the said King upon the High-Seas within the Jurisdiction of the Admiralty of England to move stir up and procure And the said Lord the King from the Title Honour Royal Name and Imperial Crown of his Kingdom of England and Dominions upon the High-Seas to depose and deprive and miserable slaughter of the Subjects of the said Lord the King of this Kingdom of England upon the High-Seas and within the Jurisdiction aforesaid to cause and procure on the said 8th day of July in the said 7th Year of the King upon the High-Seas about Fourteen Leagues from Deal and within the Dominion of the Crown of England and within the Jurisdiction of the Admiralty of England aforesaid falsly maliciously devilishly and treacherously by force and Arms with divers others false Rebels and Traytors to the Jurors unknown War against our said now Lord the King prepared promoted levyed and waged And that the said Thomas Vaughan in performance of his said War and Rebellion then and there by Force and Arms maliciously wickedly and openly assembled and joined himself with several other false Traytors and Rebels to the Jurors unknown to the Number of Fifteen Persons being Armed and Provided in a Warlike manner with Guns and other Arms as well offensive as defensive And the said Thomas Vaughan then and there being aboard the said Ship of War called the Loyal Clencarty assembled with the other false Rebels and Traytors as aforesaid maliciously wickedly and Trayterously sailed a Cruising to several Maritime places with the aforesaid Ship of Warr called the Loyal Clencarty with an intent to take spoil and carry away the Ships Goods and Money of our said Lord the King and his Subjects by Force and Arms upon the High and open Seas within the jurisdiction aforesaid against the Duty of his Allegiance the Peace of our said Lord the King his Crown and Dignities and likewise against the Form of a Statute in this Case made and provided Thomas Noden Samuel Oldham Jurors Upon this Indictment he hath been Arraign'd and upon his Arraignment he hath pleaded Not Guilty and for his Tryal he hath put himself upon God and his Country which Country you are Your Charge is to enquire whether he be guilty of the High Treason whereof he stands Indicted or not Guilty If you find him Guilty you are to enquire 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 enquire whether he fled for it If you find that he fled for it you are to enquire of his Goods and Chattels as if you had found 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. Whitaker May it please you my Lord and you Gentlemen of the Jury The Prisoner at the Barr Thomas Vaughan stands Indicted for High Treason That whereas on the 9 th of July there was a War between his Majesty the King of England and Lewis the French King amongst other War-like Preparations that the French King did make he did set forth a Ship called the Loyal Clencarty That the Prisoner at the Bar as a false Traytor did list himself aboard this Ship And on the High-Seas about Eleven Leagues from Deal did Trayterously aid the Kings Enemies to take the King's Ships This is said to be against the Duty of his Allegiance and the Peace of our Soveraign Lord the King his Crown and Dignity He stands further Indicted for that he the said Thomas Vaughan with several other false Traytors did levy War and Arm themselves with Arms Offensive and Defensive and was Cruising on the High-Seas off of Deal with an intent to take the King's Ships and to kill and destroy the King's Subjects against the Duty of his Allegiance and the Peace of our Soveraign Lord the King his Crown and Dignity To this Indictment he has pleaded not Guilty We shall call our Witnesses and prove the Fact and doubt not but you will do your Duty Dr. Littleton Gentlemen of the Jury you have heard the Indictment opened and also what sort of Crime the Prisoner at the Bar stands charged with viz. That he being a Subject of the Crown of England has together with his Accomplices armed himself in a Military way to Murther and Destroy his fellow-Subjects and as much as in him lay to Ruin
taken before Sir Charles Hedges the 25th of July 1695. L. C. J. Holt. Read it Then Mr. Cawley read the Examination of Thomas Vaughan The 27th of July 1695. Officium Domini contra Thomam Vaughan Capuem ' Navicule the Loyal Clencarty The Examination of Thomas Vaughan late Commander of the Ship the Loyal Clencarty aged about Twenty Six Years taken before the Right Worshipful Sir Charles Hedges Kt. Judge of the High Court of Admiralty of England THis Examinate saith That he was born at Martinico within the Dominons of the French King and is his Subject but refuses to answer of what Parents he was born That he came last from thence about four Years ago as Commander of a ship called the Hare which had been before taken from the English and came in her to Nants in France and hath ever since been in France or cruizing in French Ships That he hath been a Commander ever since he was sixteen years of age and hath Commanded several French Privateers and was Commander of a Privateer of St. Malo called the Granada of 36 Guns which about two Years ago took the Diamond and the Examinate was never till now taken Being asked Whether he ever lived in England or in Ireland he refuses to answer Being asked Whether he knew any thing of the taking and earrying of a Custom-House Boat from the Downs to Bulloigne or Whether he was then in London or did give directions to any Persons or knew of her being carried off he answered nothing but said That if any Person would prove it against him he was present to answer it but saith That in France he heard of her being brought to Bulloigne and he the Examinate bought her at Bulloigne of the Men that carried her away and that she cost him 900 and odd Livres and was then called the Elizabeth and Ann or Michael and Ann but which doth not remember That he the Examinate still hath the said Vessel at Bulloigne That he cannot tell the names of the Persons he bought her of and that took her away but believes they had a Commission That something above three Weeks ago the Examinate went with a Commission from the French King on board a two and twenty Oar-Barge called the Loyal Clencarty then at Bulloigne as Commander thereof and on Munday last was a fortnight was taken by the Coventry Man of War at the Buoy in the Gunfleet And that the Commander of the Coventry took away this Examinate's Commission being asked upon what design he came out with the Barge replied that it was not to take the Air That the Barge formerly belonged to the Lord Danby and was taken by a French Privateer about a Year ago That before he came out he met with two English Seamen upon the Court of Guards at Bulloigne who told the Examinate That they had been taken Prisoners and the Examinate took them in upon Charity and afterwards met another English Man who told the Examinate that he had been taken in Land Service and believes it was before Fort Renoque and the said Person sitting upon a Stone at Bulloigne and not knowing what to do with himself the Examinate took him on Board for Charity and designed to put the said three Persons ashore in England Being asked whether he did not put in a Claim for the said Custom-House Boat by reason of her Captain or Whether the Persons that took her had any Commission from him he the Examinate answered That they that took her must answer for what they did and he must answer for his Actions only Thomas Vaughan Eodem die Capt ' coram me C. Hedges L. C. J. Holt. Mr. Vaughan Have you any more to say Tho. Vaughan It is very hard Circumstances I am under if an English Man was in France under the straights that I am here it would be very hard for him to prove himself an English Man L. C. J. Holt. You have had a very fair Tryal and you shall have Justice be it for you or against you Tho. Vaughan I hope your Lordship will do me Right L. C. J. Holt. Gentlemen of the Jury The Prisoner at the Bar Thomas Vaughan stands Indicted for High-Treason for adhering to the King's Enemies viz That he put himself as a Soldier in the Service of the French King in a Vessel called the Loyal Clencarty with diverse other Persons on Board her that were Subjects to the French King and Enemies to the King of England with a design to burn the King 's and his Subjects Ships and for that purpose went in that Ship That the Prisoner was on Board the Ship and with such a design is proved without all Contradiction by several Witnesses that have been produced that is that the Two and twenty Oar-barge which is the same called the Loyal Clencarty lay hovering about the Buoy in the Nore those Men in the Coventry imagined they had some design of Mischief to the Ships and they made after him with the Coventry It was apprehended by Captain Vaughan and his Crew that the Coventry would be too hard for them and so they did submit and were taken And being Examined on what account he came on our Coasts it is confest by him That he came with a design to burn our Ships You may observe what sort of Men were a Board You have heard it proved to you that Crittenden the Marshal of Dover entered those Persons taken a Board the French Vessel of what Nation and what Quality they were and there were about a Dozen of these French Men for they were entered as such Now if a Subject of England to join with the King's Enemies in pursuit of a design to burn or take any of the King 's or his Subjects Ships that is an adherance to the King's Enemies But it appears not only that Captain Vaughan was in their Company but that he was their Commander which Commanding the Vessel on Board which were French Subjects Enemies of the King and the Kingdom of England is High-Treason and the particular Fact of Treason for which he is Indicted And it appears that he had a Commission from the French King to command this Vessel the Loyal Clencarty Now the Prisoner having this Commission to be Commander of this Vessel though they who served under him were not Native French Men but other Foreigners yet their subjecting themselves to him acting by Virtue or Colour of that Commission makes them to be the French King's Subjects during their continuance in that Service for otherwise all Prizes which they should take would make them to be Pirates which none will pretend to maintain when they acted by a Commission from a Sovereign Prince that was an Enemy And if they shall cruize upon our Coasts with a design to take or destroy any of the King 's or his Subjects Ships they are Enemies though they were the Subjects of a Prince or State in Amity with the King of England But at this time there is no
the first Article viz. compassing and imagining of the King's Death For Overt-act seems to be opposed to something of a contrary Nature Act is opposed properly to Thought Overt is properly opposed to secret And that sort of Treason consisting in secret Thought and internal Purpose cannot be known tryed and judged of without being Disclosed and manifested by some external open act VVherefore it is pertinent and Reasonable in order to Attaint a Man of such Treason that the Indictment should Charge and set forth the Act as well as the Thought And so it hath been used to be done But such Order or manner doth not seem so natural or necessary in framing Indictments for other Treasons where the Treason consists in visible or discernible Facts as levying War c. Nevertheless I think an Overt-Act ought to be alledged in an Indictment of Treason for adhering to the King's Enemies giving them Aid and Comfort And the Overt-Act or Acts in this Case ought to be the particular actions means or manner by which the Aid and Comfort was given My Lord Cook declares his Opinion to this purpose His words which I read out of his Book here are these The Composition and Connection of the words are to be observ'd viz. thereof be Attainted by Overt Deed This says he Relates to the several and distinct Treasons before express'd and especially to the compassing and imagination of the Death of the King c. for that it is secret in the heart c. Now the Articles of Treason before exprest in the Statute of 25. E. 3. are four 1. Compassing c. 2. Violating the Queen c. 3. Levying War and 4. This of Adhering c. And yet it is hardly possible to set forth any Overt Act concerning the 2 d. otherwise than in the words of the Statute That Article expressing so particular a Fact I do observe also that these words Being thereof Attainted by Overt Fact do in this Statute immediately follow this Article of Adhering c. And it would be a great Violence to Construe them to refer to the first Article only and not to this last to which they are thus connected If they are to be Restrained to a single Article it were more agreeable to the strict Rules of Construing to refer them to this of Adhering only L. C. J. Holt. That which I insist on is this whether the Indictment would be good without expressing the special Overt-Act If it be then this is a surplusage and we are not confin'd to it but if it be not a good Indictment without expressing it then we are confin'd to it Mr. Phipps I believe Mr. Sollicitor never saw an Indictment of this kind without an Overt-Act laid in it L. C. J. Holt. Can you prove the Facts laid in the Indictment for certainly the Indictment without mentioning particular Acts of adherance would not be good Mr. Cowper Yes my Lord and as to the Evidence before you we would only offer this whether in this Case if the Indictment were laid generally for adhering to the King's Enemies in one place and in another place levying of War and nothing more particular it would be good I doubt it would not But when there is laid a particular Act of Adhering we may give in Evidence matter to strengthen the direct proof of that particular Act of Adhering to the King's Enemies tho' that matter be not specially laid in the Indictment For the Act goes only to this That the Prisoner shall not be Convicted unless you prove against him the Over-Acts specially laid in the Indictment But whether it shall not be heard to make the other Overt-Act which is laid the more probable Now we have laid a special Overt-Act in the Indictment and we have produced Evidence of it and we would produce likewise collateral Evidence to induce a firmer Belief of that special Overt-Act by shewing you that he hath made it his practice during the War to aid and assist the King's Enemies But if the Jury do not find him Guilty of the special Overt-Acts laid in the Indictment they cannot find him Guilty by the proof of any other Overt-Act not laid in the Indictment But if we prove he has made this his practice in other instances during the War whether that proof shall not be received Mr. Phipps My Lord I desire the Act may be read It expresly contradicts what Mr. Cowper says for it says That no Evidence shall be given of any Overt-Act that is not expresly laid in the Indictment The Act was Read L. C. J. Holt. That is you may give Evidence of an Overt-Act that is not in the Indictment if it conduce to prove one that is in it As consulting to kill the King or raise a Rebellion is laid in the Indictment you may give in Evidence an acting in pursuance of a Consult that is an Evidence that they agreed to do it tho' that doing of the thing is of it self another Overt-Act but it tends to prove the Act laid in the Indictment Mr. Phipps The Overt-Act laid in this Indictment is his Cruising in the Clancarty and this Overt-Act you would prove is no Evidence of that nor relates to it but it is a distinct Overt-Act of it self L. C. J. Holt. You cannot give Evidence of a distinct Act that has no relation to the Overt-Act mention'd in the Indictment tho' it should conduce to prove the same species of Treason Mr. Cowper We would apply this proof to the Overt-Act laid in the Indictment L. C. J. Holt. Any thing that has a direct tendency to it you may prove Mr. Cowper We have laid the Overt-Act that he did voluntarily put himself on Board this Vessel of the French King the Loyal Clancarty and did go to Sea in her and Cruise with a design to take the Ships of the King of England and his Subjects Now part of the Overt-Act is his Intention in the Act of Cruising we do not charge him with taking one Ship so that his Intention is a Member of the Overt-Act and it must be proved to make his Cruising Criminal that he design'd to take the Ships of the King of England Now we think it a proper proof of his Intention to shew that during this War before and after the time of the Treason laid in the Indictment he was a Cruiser upon and Taker of the King's Ships and this fortifies the direct proof given of his Intention L. C. J. Holt. I cannot agree to that because you go not about to prove what he did in the Vessel call'd the Loyal Clancarty but that he had an intention to commit depredation on the King's Subjects So he might but in another Ship Now because a Man has a design to commit depredation on the King's Subjects in one Ship does that prove he had an intention to do it in another Mr. Phipps He was Cruising in the Clancarty that is the Overt-Act laid in the Indictment and the Overt-Act you
in their being taken Sam. Oldham I cannot tell that I saw no Arms. Mr. Cowper You were in the Action was there any resistance made Sam. Oldham I saw no resistance they offered to run they were aground once and got off again Mr. Phipps You say there were Forraigners what Countrey-men did you believe those Forraigners to be Sam. Oldham I cannot justly say I believe Dutch-men L. C. J. Holt. How many Dutch-men were there Sam. Oldham I cannot say Dr. Oldish But you said there were some two or three French-men and that they spoke French do you understand French Sam. Oldham No Sir Dr. Oldish Then how do you know they were French-men and spoke French Sam. Oldham They said they were they did not speak English several of the Ships Company said they were French L. C. J. Holt. If they were all Dutch-men and appear in a hostile manner against the King of Englands Subjects they are Enemies tho we are in League with Holland and the rest of the Seven Princes Mr. Phipps The Indictment runs That the French King quantum Naviculam vocat The Loyal Clancarty cum quam plurimis subditis Gallicis Inimicis Dei Dom◠nunc ad numerum quid 〈◊〉 Personarum replet preparavit L. C. J. Holt. Suppose it doth Mr. Phipps It is Subditis Gallicis my Lord. L. C. J. Holt. They will be Subjects in that matter if they act under his Commission they are Enemies to the King of England and they have made themselves the French King's Subjects by that Act. Mr. Phipps It appears not that they are French-men my Lord. L. C. J. Holt. If Dutch-men turn Rebels to the States and take Pay of the French King they are under the French King's Command and so are his Subjects Will you make them Pyrates when they act under the Commission of a Soveraign Prince They are then Subditi to him and so Inimice to us Mr. Phipps It does not take away their Allegiance to their Lawful Prince They may go to the French King and serve him yet that does not transfer their Allegiance from their Lawful Prince to the French King and make them his Subjects But however to make them Subjects within this Indictment they must be Gallici Subditi so they must be Frenchmen as well as Subjects L. C. J. Holt. Acting by Vertue of a Commission from the French King will excuse them from being Pyrates tho not from being Traitors to their own State but to all other Princes and States against whom they do any Acts of Hostility they are Enemies And their serving under the French Kings Commission makes them his Subjects as to all other but their own Prince or State And tho they be not Frenchmen yet they are Gallici Subditi for it 's the French Subjection that makes them to be Gallici Subditi Mr. Phipps Pray my Lord suppose a Subject of Spain should go over to the French and Fight against England I take it he may be termed an Enemy of the King of England tho his Prince be in League with ours but with submission he cannot properly be said to be a Subject of the French King For suppose an Indictment of Treason against a Foreigner should say that he being a Subject did commit Treason and it be proved he is not a Subject with submission he must be acquitted Mr. Cowper There is a Local Allegiance while he is in the Country or Fleets or Armies of the French King L. C. J. Holt. Dutchmen may be Enemies notwithstanding their State is in Amity with us if they act as Enemies Mr. Cowper Call R. Bub. He was sworn Was you aboard the Coventry when she took the Clancarty R. Bub. Yes Sir Mr. Cowper Give an Account what you know of the Prisoner Tho. Vaughan at the taking of that Ship R. Bub. We came aboard the Coventry and were at the Nore at Anchor our Pennant was taken down to be mended So in the Night Captain Vaughan with his two and twenty Oar Barge rounded us two or three times In the Morning we weigh'd Anchor and fell down in order to go to the Downs and we came up with them and fir'd at Captain Vaughan and he would not bring to With that our Captain order'd to have the Barge and Pinnace and Long-Boat to be mann'd to go after him They follow'd him and at last came up with him and came up pretty near but could not come so near with the Long-Boat but were fain to wade up to the middle a Mile and a half We hoisted our Colours in order to fight them and bore down still upon them and they would not Fight our Men. And we took them out and when they came aboard the Englishman that was a Pilot was to have his Freedom to Pilote them up the River He confest to the Captain that Captain Vaughan intended to burn the Ships in the Harbour And the next day after the Pilot had confessed it Captain Vaughan himself confest it on the Deck that he came over with that design Mr. Cowper Who did he confess it to R. Bub. To the Boat-swain and Gunner as he was on the Deck on the Lar-Board side that he came on purpose to burn the Shipping in the Harbour L. C. J. Holt. Did he confess that himself R. Bub. Yes my Lord. L. C. J. Holt. Whereabout was this at the Buoy in the Nore R. Bub. In the Downs my Lord. L. C. J. Holt. Where did the Ships lye that were to be burn'd R. Bub. At Sheerness Mr. Soll. Gen. He own'd himself to be an Irishman did he not R. Bub. Yes Mr. Cowper And that he came from Callis R. Bub. Yes Mr. Cowper Had you any discourse with him about a Commission R. Bub. No. But our Lieutenant and Captain had but it was not in my hearing I will not speak further than I heard and what I can justify Mr. Soll. Gen. Will you ask him any Questions Mr. Phipps No. Mr. Soll. Gen. Then call Mr. Jo. Crittenden Marshal of Dover Castle who was Sworn Mr. Crittenden Pray what did you hear the Prisoner at the Barr confess of his design in coming to England Mr. Crittenden I did not hear him say any thing of his design Mr. Soll. Gen. What did he confess Mr. Crittenden He confest he was an Irishman Mr. Whitaker Upon what occasion did he confess that Mr. Crittenden When I enter'd him into my Book I ask'd him what Countreyman he was Mr. Cowper What are you Mr. Crittenden I am the Marshal of Dover Castle Mr. Cowper By what Name did he order you to enter him Mr. Crittenden Thomas Vaughan an Irishman L. C. J. Holt. Upon what Account did you enter him Mr. Crittenden As a Prisoner Mr. Cowper Did he speak any thing of a Commission Mr. Crittenden I did not hear him say any thing of that Mr. Phipps Have you your Book here Mr. Crittenden Yes Sir Dr. Oldish Was he not in Drink when he said so Mr. Crittenden I believe he was not very
Gentleman Captain Vaughan Rob. French I never saw him since till I saw him in London Then the People laugh'd L. C. J. Holt. Pray Gentlemen have patience How do you know now that this is the same Man that you saw fourteen years ago For there must he a great alteration in a Man in fourteen years time from what was at that time being but fifteen years of Age. Rob. French I believe in my Conscience this is the Man L. C. J. Holt. Can you take it upon your Oath he is the Man Mr. Bar. Powis In what Language had you this Discourse L. C. J. Holt. How long were you in company with him and his Father Rob. French I believe five or six hours Mr. Bar. Powis In what Language was this Discourse with his Father Rob. French My Lord he spoke English a sort of broken English L. C. J. Holt. Where do you live your self Rob. French I live in Ireland L. C. J. Holt. How long have you lived there Rob. French Nine or Ten Years L. C. J. Holt. VVhereabout in Ireland Rob. French In Connaught L. C. J. Holt. Nine or Ten Years Rob. French Yes my Lord. Dr. Littleton Did not Captain Vaughan nor his Father speak Irish to you in that six hours Rob. French No my Lord. Mr. Justice Turton Hovv long have you been in England Rob. French Not above tvvo Months Mr. Justice Turton Did you hear of Captain Vaughan being to be try'd Rob. French No my Lord. Mr. Justice Turton Hovv did he come to hear of you then Rob. French I heard he vvas in Tovvn L. C. J. Holt. It is a strange thing you have a most admirable memory and Captain Vaughan has as good a memory as you that you should never have any intercourse for fourteen years and yet should remember one an other after so long a time It is a vvonderful thing too that vvhen he could not knovv you vvere in Tovvn and yet should call you a VVitness on his behalf sure he must have the Spirit of Prophesie Rob. French He did not send to me at all L. C. J. Holt. Hovv did you come to be here then Rob. French I vvill tell you It vvas my custom alvvays to go and see Prisoners and I heard there vvere Prisoners in Newgate so I vvent to Newgate and I met vvith one Dwall and I asked him of another Gentleman that vvas there and I vvent to the other side by chance and I met vvith Captain Vaughan L. C. J. Holt. What was thy Design Why didst thou visit Newgate Rob. French Because it was my custom because it was an Act of Charity L. C. J. Holt. Did you go to Newgate out of Charity Rob. French I went to see my Friend and carried a Letter to him I went out of Charity Mr. Phipps You were in the West-Indies upon the French ground don't they speak English on the French ground and French on the English ground Rob. French Yes Mr. Cowper So they do here Did you ever see Captain Vaughan before that time Rob. French No. Mr. Whitaker Did you visit lately any other Prisoners in Newgate besides Captain Vaughan Rob. French Yes Mr. Whitaker Give their Names Rob. French I have visited Mr. Noland and another Gentleman that is with him and I went into the house and drank with him there Mr. Whitaker What is that other Gentlemans Name Rob. French I do not remember his Name at present but he is a Companion of Mr. Nolands Mr. Whitaker Do you know him if you see him Rob. French I I would L. C. J. Treby How long have you been in England Rob. French But two Months L. C. J. Treby Have you usually visited Prisoners in former years Rob. French My Lord wherever I have been it was my custom to do so L. C. J. Treby But how doth it consist that you who are an Irishman should come hither to visit Prisoners in Newgate Rob. French I can prove under my Lord Mayor of Dublins hand that I came here upon business and I went to the Prison to visit the Prisoners for Charity sake and did bestow it according as I was able L. C. J. Holt. You had best stay there and not go away for we may have occasion to ask you some questions Mr. Cowper Do you not use out of Charity to be evidence for them Rob. French No never before now in my Life Mr. Whitaker What other Prisons have you visited besides Newgate Rob. French I did visit none L. C. L. Treby Had you no Charity for other Prisons Mr. Bar. Powis When you so visit Prisons on what Account is it Is it to give Ghostly advice Rob. French Upon a Charitable Account my Lord. L. C. J. Holt. Ghostly Advice is Charity Mr. Phipps Where is Mr. Lefleur He did not appear Call Mr. Gold who appeared Cl. of Arr. That Man is attainted but pardoned Mr. Phipps Mr. Gold how long have you known Captain Vaughan Mr. Gold I never knew Mr. Vaughan before I saw him in the Marshalsea Mr. Phipps Is Monsieur Lefleur here Is Mr. Deherty here Mr. Deherty appeared and was Sworn Mr. Phipps Do you know Mr. Vaughan the Prisoner at the Bar Mr. Deherty Yes Mr. Phipps How long have you known him Mr. Deherty Five Years Mr. Phipps What has he been reputed all along since you have known him Mr. Deherty Frenchman Mr. Phipps Did you know him in France Mr. Deherty Yes and he was reputed a Frenchman there Mr. Justice Turton What occasion had you to enquire into that the place of his Nativity Mr. Deherty I did not enquire at all and one that was his Servant was my Comrade a great while Mr. Phipps Now we will prove where he was Christened by one that was at his Christening Mr. Dascine He appeared and stood up being Sworn and spoke in French to the Court pretending he could not speak English L. C. J. Holt. If he cannot speak English there must be an Interpreter Mr. Soll. Gen. They must find an Interpreter he is their Witness Then a Person in Court stood up and told the Court he could speak English as well as he that he had been a Bailiffs Follower for several years L. C. J. Holt. You can speak English can you not Mr. Dascine I will speak as well as I can Kings Messenger I am a Messenger to the King do you not know me Mr. Dascine Yes L. C. J. Holt. Prithee speak English Mr. Dascine As vvell as I can my Lord I vvill speak Mr. Phipps Are you svvorn Mr. Dascine Yes my Lord. Mr. Phipps Do you knovv Captain Vaughan Mr. Dascine In 1669. I vvas in Saint Christophers I vvent from Rhoan and from thence I went vvith Hats and Cloth to Crebeck and had a Letter to one Thomas Williams a Factor in Martenico And after I had done as I vvas coming avvay Mr. Williams desired me to go to a Christning a mile and Half from Port-Royal He told me there was one Mr. Vaughan had a Plantation there and
necessity of entring upon this Question because it is proved that diverse who were on Board this Vessel were French Men the joyning with whom in Prosecution of such a Design is that kind of High-Treason of adhering to the King's Enemies So that if Captain Vaughan was a Subject of England he is proved Guilty of High-Treason if you believe the Evidence But now it is insisted on by Mr. Vaughan and his Council That though he was exercising Hostility against the King of England and designing Mischief to his Subjects yet says he I was not a Subject of England I was born a Subject to the French King If that be true then is he not Guilty of High-Treason he is an Enemy but not a Traytor And that is the Point you are now to consider of Whether he be a Subject of England or France Now as to that he being taken under such Circumstances and speaking English it is reasonable to be presumed that he is a Subject of England unless he proves the contrary But then you have heard by several of the Witnesses That when he was at first taken he acknowledged himself to be an Irish Man and he did not only acknowledge it to them that assisted in apprehending him but being carried to Dover when the Marshal entered him in his Book as a Prisoner he entered him not as a French Man but declared at that time he was an Irish Man It may be he did not consider the Consequence of it for the next Day he was carried before the Mayor of Dover and then having considered better of it that it was not for his Interest to acknowledge himself an Irish Man he said he was born a Subject to the French King and at Martinico There were Scotch Men and Irish Men taken at the same time and they were entered as of the Nation they belonged to and so were diverse entered as French Men. So that unless he hath given sufficient Evidence to the contrary this is sufficient to induce you to belive him an Irish Man born But he has endeavoured to take off this Evidence that has been given First he says It was when he was in Drink that he did confess himself to be an Irish Man but when he was Sober he said he was a French Man And besides that he calls a Witness whose Name is Robert French to give an account of him And French says That about fourteen Years ago he was at St. Christophers on French Ground and he did then see this Thomas Vaughan he did take him then to be about the Age of fifteen He says he stay'd there about four and twenty Hours and that he was in the Company of this Vaughan and his Father about five or six Hours He says his Father told him at that time that this young Man who was then about fifteen Years of Age was born at Martinico He says further That his Father did recommend this Son to him to be a Sea-faring Man being the Imployment he intended him for and he is sure this is the Man This Robert French was ask'd Whether he ever saw this Vaughan from the time he first saw him at St. Christophers until this time He says he never saw him since that time till about two Months ago He gives you this account how he came to meet with him he says he came to Town and being a Charitable man he used to visit the Prisons and he came to Newgate to one Knowler and there he saw Captain Vaughan and though he had not seen him for fourteen Years before yet he knew him again and is positive that he is the same Person Another Swears he knew the Prisoner about five years and he was reputed a French man There has been another Witness produced which is that Dascine who came up as a French man and talked French pretending he could not speak English but on Examination it was discovered that he had an Imployment in England and was a Bayliffs-Follower and it appears he can speak English very well and notwithstanding his pretence has given his Evidence in English And he tells you That he about the year 1669 did go to St. Christophers and afterwards to Martinico and there he went to one Williams who had a Friend whose name was Vaughan at whose House there was a Christning to be of his Son to whom Williams was to be Godfather and this Witness was carried thither and the Child was Christned Thomas He tells you he went over again to St. Christophers and to Martinico in the year 1677 and that then he enquired for this Child and did see him Then he says after that he went over again to St. Christophers and to Martinico about thirteen years ago and then saw him again and I think never saw him since until very lately and this Prisoner he undertakes to tell you is the very Person But then one Harvey tells you he saw him in France in the year 1693 and there he was taken to be a French man and he lived with a Woman that sold Silk that said he was her Nephew her Sister's Son and that he was born at Martinico This is the Evidence he gives you to induce you to believe he is a French man Now in the first place before I open the Evidence in answer to it I desire you to observe the Weight and Import of this Evidence that hath been produced by the Prisoner First for this French that says he saw Captain Vaughan fourteen years ago when he was about fifteen years of Age he had no former Acquaintance with him stayed in his Company but six Hours and came away within four and twenty Hours after his first arrival and never saw him again in fourteen years it is a strange thing that he should know him again so well as to be so positive that he is the same Person for in fourteen years there is a great alteration in a man For a man that has known one at the Age of fifteen and not seen him in fourten years after though before he was very well acquainted with him cannot so easily know him again But however he is positive upon his Oath that he is the same Person that he saw at Martinico Then as for Dascine you may consider him that he should take notice of a little Child that he saw Christned several years before and that he should now remember him when he had not seen him in thirteen years sure he had a great liking to this Child that when he went to Martinico many years after he should be so inquisitive after him I must leave these things to you to consider of That he might have an Aunt in France that is very possible too But now consider how this Evidence hath been endeavoured to be answered two Witnesses have been produced to contradict that which they have Sworn The first is David Cray who tells you he has known the Prisoner for two years and says he was always reputed to be an
Irish man and born in Galloway he has often discoursed with him about his Country and he told him that he was an Irish man and born at Galloway Then you hear what a Letter is produced writ to Cray when he was to come upon his Tryal he mentions what his Defence was and that it was impossible that any could do him any harm but he and two more Cray Swears it is his Hand that he hath seen him write and he belives it is his Hand Then there is a Gentleman Mr. Rivet that came here by chance who is a Galloway man he saith he knew the Prisoner's Father who was reputed to come thither about the time of the Rebellion in Ireland in 1641. and lived at Galloway and that this Prisoner Mr. Vaughan was his Son and he knew him of a Child was well acquainted with him lived hard by him remembers him an Apprentice in Galloway and tells you to whom and says he is sure this is the very man and that he saw the Prisoner in 1691 about the time of the Reduction of Galloway and he is confident that the Prisoner is the Son of John Vaughan at Galloway and he gives you a particular account of him and his Family viz. of the Reputation and Manner of living of his Father and what other Brothers he had so that there is no Objection against his Credit and it is hard to believe since he is so positive and circumstantial that he can be mistaken But the Prisoner and his Council have endeavoured to answer all this Evidence and first they have called Cray's Brother to prove that he is an ill man for that he came into this Town where his Brother lives who subsisted him and took him to his House and one day when he and his Wife went abroad he made bold with some of his Money but they thought the Maid had it and he charged her with it but to his Satisfaction it did afterwards appear that David had it Then there is another Christopher Hyden Christopher Cray's Servant who says he heard D. Cray say he was forc'd to be an Evidence against Vaughan to save himself and that he used to threaten his Brother that if he would not give him more Money he would swear against him Bryan saith much to the same purpose These are produced to take off the Credit of D. Cray's Testimony But then Gentlemen as to the place of the Prisoner's birth two other Witnesses are produc'd to give you Satisfaction that this Capt. Vaughan was not the Son of that Mr. Vvughan of Galloway whose Evidence I will open to you and then you will see how coherent they are in their Testimony The first is Creighton a Shoemaker he says he knew Thomas Vaughan the Son of John Vaughan of Galloway about ten years since he was a Galloway man bred and lived the next door to John Vaughan that had a Son Thomas He says he has been here about ten years in England He says he thinks that Thomas Vaughan the Son of John Vaughan was about the Age of fifteen years but that this Prisoner is not he for that Thomas Vaughan was disfigured with the Small-pox he remembred him well he had reason for it for he once basted him soundly and that he went away from Galloway when he was about fifteen years of Age and was reported to be dead and if it were so this Prisoner cannot be the Person The other Witness is as positive as Creighton for he saith He knew this John Vaughan of Galloway and his Son Thomas and that Thomas Vaughan Son of John Vaughan died about ten years since of the Small-pox So that they have found two Thomas Vaughans one tells you of one that was fifteen years old and was disfigured with the Small-pox and the other tells you of Thomas Vaughan who died of the Small-pox when he was ten years of Age. You are therefore to consider the Evidence on both sides The Question principally is Whether the Prisoner be a Subject of the King of England If you are satisfied that he is not an English Subject but a French man then he is not Guilty of this High-Treason but if you are satisfied by the series of the whole Evidence that he is an Irish man and that he had a Commission from the French King and that he cruized upon our English Coasts in Company with the King's Enemies with a design to take burn or destroy any of the King 's or his Subjects Ships you are to find him Guilty of High-Treason whereof he stands Indicted otherwise you are to acquit him Cl. of Arr. Swear an Officer to keep the Jury which was done After a short stay the Jury returned into Court and gave in their Verdict Cl. of Arr. Gentlemen answer to your Names E. Leeds Mr. Leeds Here. Cryer Vous avez and so of the rest Cl. of Arr. Gentlemen Are you all agreed of your Verdict Jury Yes Cl. of Arr. Who shall say for you Jury Our Foreman Cl. of Arr. Thomas Vaughan hold up thy Hand Which he did Look upon the Prisoner How say you Is he Guilty of the High-Treason whereof he stands Indicted or not Guilty Foreman Guilty Cl. of Arr. What Goods or Chattels Lands or Tenements had he at the time of the Treason committed Foreman None to our knowledge Cl. of Arr. Then hearken to your Verdict as the Court hath Recorded it You say that Thomas Vaughan is Guilty of the High-Treason whereof he stands Indicted but that he had no Goods or 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 Jury Yes Tho. Vaughan My Lord let me beg one Favour that I may be used like a Gentleman that I may be sent to a Chamber and not to a Dungeon and that my Friends may come to me L. C. J. Holt. Captain Vaughan they say you once made an escape and therefore the Keeper must keep you with Humanity but with all Security Tho. Vaughan I desire that I may be kept like a Christian. L. C. J. Holt. The Keeper must do his Duty Cl. of Arr. Thomas Vaughan hold up thy Hand which he did Thou standest Convicted of High-Treason against our Sovereign Lord the King What hast thou to say for thy self why Judgment should not pass against thee to dye according to the Law Tho. Vaughan I am altogether a Stranger to the Law my Lord I refer my self to my Council L. C. J. Holt. Well then you refer your self to your Council You have had a fair Tryal and have no reason to complain of it If your Council have any thing to say in arrest of Judgment they shall be heard Mr. Phipps My Lord the Indictment has two sorts of Treason laid in it the one for adhering to the King's Enemies the other levying of War and with submission I take it that the first is not well laid for it says that the Prisoner did adhere
to the King's Enemies but says not against the King Now every body knows that the French King is in War not only with England but Holland and Spain and the Emperour But if a Man joyn with the French against any of them he adheres to the King's Enemies and yet it cannot be said to be against the King therefore they ought to have laid it that he did adhere to the King's Enemies contra Dominum Regem it must be aiding and comforting them against the King that makes the Treason L. C. J. Holt. It does say so Mr. Phipps No my Lord it only says that Captain Vaughan did adhere to the King's Enemies and does not say it was against the King and if that be Treason is what we desire to know L. C. J. Holt. If he adhere to the King's Enemies it must be against the King though he assist them only against the King's Allies for thereby the King's Enemies may be more encouraged and enabled to do Mischief or Damage to the King Suppose you assist the French King against the King of Spain that is now in Allyance and League with the King of England and the French in actual Enmity that is to adhere to the King's Enemies against the King Mr. Phipps Would that be Treason my Lord L. C. J. Holt Yes certainly though that is not a point in this Case and so not necessary to be determined now for the Act of Parliament of 25 of E. 3 defines Treason in adhering to the King's Enemies and expresses the Overt-Act in giving them aid or comfort it is sufficient to alledge the Treason in the Words of the Statute adhering to the King's Enemies An Overt-Act alledged shews it to be against the King and in pursuance of that adherence he did so and so he was a Captain and Soldier in the Ship did join with the King's Enemies c. with a design to destroy the King's and his Subjects Ships surely that is most manifest an adherence to the King's Enemies against the King Mr. Phipps The Overt-Act if it were alledged sufficiently would not help it for if there can be an adhering to the King's Enemies that is not Treason they ought to alledge such adhering as is Treason and if the Treason it self is not well alledged the Overt-Act will not help it L. C. J. Holt. There is an Overt-Act to shew it to be against the King It is said all along he being in this Vessel Clancarty cum diversis Subditis Mr. Phipps But then that Overt-Act is not well alledged for 't is said only he went a cruizing whereas they ought to have alledged that he did commit some Acts of Hostility and attempted to take some of the King's Ships for cruizing alone cannot be an Overt-Act for he might be cruizing to secure the French Merchant Ships from being taken or for many other purposes which will not be an Over-Act of Treason L. C. J. Holt. I beg your Pardon Suppose the French King with Forces should come to Dunkirk with a design to invade England if any one should send him Victuals or give him Intelligence or by any other way contribute to their Assistance it would be High-Treason in adhering to the King's Enemies Mr. Phipps If the French King had designed an Invasion upon England and Captain Vaughan had assisted in his Vessel in forwarding the Invasion it would have been Treason but here is nothing mentioned but cruizing L. C. J. Holt. Cruizing about the Coast of England with a design to destroy the King's Ship Mr. Phipps That design ought to be made appear by some Act of Hostility for in the Case of Burton and Bradshaw and others which my Lord Coke cites the agreeing to rise and pull down incloâ—â—res and meeting and providing Arms for that purpose is agreed not to be levying of War and they were indicted for Conspiring to levy War upon the Statute of Queen Eliz. And in this Case here being only a Conspiring and nothing attempted it can be no more Treason than it was in that Case L. C. J. Holt. When Men form themselves into a Body and march Rank and File with Weapons offensive and defensive this is levying of War with open Force if the design be Publick Do you think when a Ship is armed with Guns c. doth appear on the Coast watching an opportunity to burn the King's Ships in the Harbour and their design be known and one goes to them and aids and assists them That this is not an adhering to the King's Enemies Here are two Indictments one for levying War and the other for adhering to the King's Enemies but the adhering to the King's Enemies is prinncipally insisted on and there must be an actual War proved upon the Person Indicted in the one yet need not be proved in the other Case Mr. Phipps The same certainly is necessary in one as well as the other for barely adhering to the King's Enemies is not Treason but there must be an actual Aiding and Comforting them and a meer intention to assist the King's Enemies is not an adherence within the Statute of 25 Ed. 3. L. C. J. Holt. If there be not High-Treason in the Act alledged that is if it do not make out an adherence to the King's Enemies than your Objection would hold good Mr. Phipps The going to cruize my Lord does not make out an adherence to the King's Enemies for his cruizing may be for other purposes as well as to take the King's Ships and your Lordship will intend the best in favour of Life Mr. Whitaker To burn the King's Ships L. C. J. Treby The Indictment is laid for Adhering to and Comforting and Aiding the King's Enemies You would take that to be capable to be construed adhereing to the King's Enemies in other respects but I take it to be a reasonable Construction of the Indictment to be adhering to the King's Enemies in their Enmity What is the Duty of every Subject It is to sight with and subdue and weaken the King's Enemies And contrary to this if he Confederate with and Strengthen the King's Enemies he expresly contradicts this Duty of his Allegiance and is Guilty of this Treason of adhering to them But then you say here is no aiding unless there were something done some Act of Hostility Now here is going a Board with an intention to do such Acts And is not that Comforting and Aiding Certainly it is Is not the French King comforted and aided when he has got so many English Subjects to go a cruizing upon our Ships Suppose they Man his whole Fleet or a considerable part of it Is not that aiding If they go and enter themselves into a Regiment List themselves and March though they do not come to a Battel this is helping and encouraging such things give the Enemy Heart and Courage to go on with the War or else it may be the French King would come to good Terms of Peace It is certainly Aiding and Comforting of