Nations Ex ore duorum vel trium c. And one Witness is no Witness Sir Ch. Hedges Two Witnesses may be necessary to convict a Man of any capital Crime but then it doth not follow that there must be two Witnesses to prove every particular Fact and Circumstance In this point touching the Place of the Nativity of Thomas Vaughan Was there not sufficient in his own Confession together with the other Proofs on the King's behalf to throw the burden of Proof upon the Prisoner You your selves seem to have been of that Opinion you undertook to prove it and 't is you that have failed in that particular L. C. J. Holt. Our Tryals by Juries are of such Consideration in our Law that we allow their Determination to be the best and most advantagious to the Subject and therefore less Evidence is required than by the Civil-Law So said Fortescue in his Commendation of the Laws of England Dr. Oldys Because the Jury are the Witnesses in reality according to the Laws of England being presumed to be ex vicineto but when it is on the High and Open Seas they are not then presumed to be ex vicineto and so must be instructed according to the Rules of the Civil-Law by Witnesses Mr. Bar. Powis This is not a Tryal by the Civil-Law for that Statute was made to avoid the Niceties of your Law Mr. J. Eyers He is tryed with like Evidence as in other Cases of High-Treason Dr. Oldys No the late Act requires two Witnesses Cl. of Arr. Make Proclamation of silence Cryer All manner of Persons are Commanded to keep silence while Judgment is giving upon pain of Imprisonment And then Judgment was given according as the Law directs in Cases of High-Treason An Abstract of the Tryal of John Murphey for High-Treason c. John Murphey being Indicted for High-Treason the Twelve Gentlemen following were sworn upon the Jury for his Tryal Nathaniel Long John Eure John Child Thomas Clarke Thomas Batemâ—n Henry Trye John Morewood Nicholas Greenway Samuel Jackson John Hall John Collumn Roger Mott. Then Mr. Whitaker one of the King's Councel opened the Indictment after which Dr. Nuton one of the King's Advocates spoke as follows JOhn Murphey of Cork in the Kingdom of Ireland born a Subject of this Kingdom and therefore owing Allegiance and Service to his King and Country stands Indicted for Adhering to Aiding and Comforting His Majesties Enemies and likewise for levying of War in Assisting the French King the Greatest the most Inveterate and the most Dangerous Enemy of our King our Nation our Religion and the common Liberty of Europe in an Unjust Cruel and long War against his King and Country that King who Heads the League against the common Oppressor of Christendom and the Country whose Forces and Reputation support that League and this with a design only to rob and spoil which is the Meanest part of the War but withal the most Mischievous to the Innocent and Trading Subjects being on Board a French Privateer called The Nostre Dame de bon Novelle and Fighting in her for though the coming with such a design and the being in a Vessel under a French Commission was Criminal and must have met with since it deserved the same Punishment yet this was put in Execution too by the the Taking the Joseph and Isaac of London on the Twentieth of March last to the Terrour and the Impoverishment of many of his Fellow-Subjects which justifies their Complaint and this publick Prosecution of the State for the bringing him to Justice And then the Witnesses for the King were called and being Examined together with several others on the behalf of the Prisoner it appeared to the Jury that the said Murphey being an Irish Man and his Majesties Subject did Traiterously adhere unto and assist the French King in a French Ship called The Nostre Dame de bon Novelle and in Taking and Securing therewith a Ship called The Joseph and Isaac of London belonging to English Subjects And thereupon he was found Guilty and received Sentence of Death as in Cases of High-Treason THE COMMISSION OF Capt. Tho. Vaughan Which he had by Order of the FRENCH KING LEWIS ALEXANDER of Bourbon Earl of Toulouse Duke of Amville Commander of the King's Orders Governor and Lieutenant-General for His Majesty in the Province of Britany Peer and Admiral of France To all those who shall see these present Letters Greeting The King having Declared War against His Catholick Majesty the Favourers of the of the Crowns of England and Scotland and the Estates of the United Provinces for the Reasons contained in the Declarations Published by His Majesty throughout the Extent of His Kingdom Countries Lands and Lordships under His Obedience and His Majesty having Commanded Us to take care that the said Declarations be observed in what doth depend upon the Power and Authority which His Majesty hath been pleased to commit to Our said Charge of Admiral We have according to the express Orders of His said Majesty given Leave Power and Permission to THOMAS VAUGHAN living at Bulloigne to arm and set forth in Warlike Manner a Bark called The Loyal Clencarty of the Burthen of Ten Tuns or thereabouts which is at present in the Port of Bulloigne with such Number of Men Cannons Bullets Powder Shot and other Ammunitions of War and Provisions which are Necessary to set her out to Sea in a Condition to sail and cruize upon the Pirates and others without Commission as also upon the Subjects of His Catholick Majesty the Estates of the United Provinces the Favourers of the of the Crowns of England and Scotland and other Enemies of this Estate in what Places soever he can meet them whether it be upon the Coasts of their Country in their Ports or Rivers also upon their Shores or Places where the said Captain THOMAS VAUGHAN shall think fit to land to annoy the said Enemies and there to make use of all the Means and Arts permitted and used by the Laws of War to take them and bring them Prisoners with their Ships Arms and other Things in their Possession Provided the said VAUGHAN shall keep and cause those of his Crew to keep the Maritime Orders and that he shall carry during his Voyage the Flag and Ensign of the King's Arms and of Ours and cause the present Commission to be Registred in the Registry of the nearest Admiralty where he shall be Equipped and leave there a Roll Signed and Certified by him containing the Names and Surnames the Births and Residence of his Crew and make his return to the said Place or some other Port of France and make his Report before the Officers of the Admiralty and no others of what shall have happened during his Voyage and give Us Advice thereof and send his said Report to the Secretary-General of the Marine with the Papers justifying the same that We may give such Orders thereupon as may be Necessary And We pray and require
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
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
in this case because of the contrariety of the Witnesses for the first Witness said there was no Frenchman aboard the next said there were two Frenchmen and a Dutchman and Crutenden said there were 13. Now how can these be reconciled unless there had been a Legal Examination of the Parties But the thing we would chiefly go on is this I think they have sail'd in the Foundation of the Treason that is to prove the Prisoner a Subject of this Crown neither is there the least colour of proof thereof At Night he came to Mr. Crittenden and is in drink there he says he is an Irishman the next morning when he is examin'd before the Justices then he comes in a kind of Judgment and then such a confession would be of moment but then he confesses himself to be a Frenchman of Martenico Now my Lord what credit is to be given to these confessions when before the Marshal he shall say I am an Irishman and the next day when he is on examination he declares himself a Frenchman in one confession he is in drink in the other sober Now my Lord I say what proof is here Here then the Foundation of the Treason fails For the Indictment is That he being a Subject of the King of England levies War Now my Lord it this Quality be not proved all the rest of the Indictment falls to the ground for it is impossible for him to commit Treason where he is not a Subject because there can be no Violation of Allegiance So that if he be a Frenchman as he declared before the Justices he cannot be guilty of Treason So that here they have fail'd in the Foundation of all that is to prove him a Subject of England And because they affirm him to be so it lies on those that affirm it to prove it But perhaps now they will say that these little confessions of his will throw the burthen of proof on him By no means when here is a stronger presumption on the other side a meer extrajudicial saying to Seamen that he is an Irishman cannot ballance his confession examined before the Justices wherein he says he is a Frenchman and so can never throw the burden of proof on him Therefore it lies on them that assert this to prove it But my Lord tho it doth not lie on him yet we will prove him to be a Frenchman and born at Martenico by those that were at the christening of him and have known him from time to time ever since And because they say he can speak English if you please to examine him you shall hear him speak Natural French so that that cannot prove him to be a Natural Irishman Mr. Phipps Such a Saying of a Foreigner will be of no great weight because if a man go into a Foreign Country he may say he is that Countryman to get the more favour L. C. J. Holt. What to hang himself Mr. Phipps No my Lord a man that comes into a strange Country may very well think he shall find better usage by pretending to be of that Country than by owning himself to be a Foreigner But we will prove Vaughan to be a Frenchman Call Robert French Then Rob. French was sworn Mr. French Pray give the Court and Jury an account whether you know Mr. Vaughan the Prisoner at the Bar and how long you have known him and what Countryman you take him to be and the Reason why Rob. French I have known him this 14 years Mr. Phipps Where did you see him then Rob. French I saw him in Saint Christophers Mr. Phipps Pray give an Account how you came to know him Rob. French About 16 years ago I was at Mount-Surat and I came to St. Christophers and there I chanc'd to come into English Ground among the Factors and so they brought me to the French Ground and coming there I was in company with several others that Night and it happened I was told there was one Mr. Vaughan there and I coming acquainted with him he shewed me this Youth he was a Youth then He told me he was his Son and recommended him to me because he look'd on me to be a man in trust and business Mr. Phipps From that time what has he been reputed Rob. French A Sea-faring man Mr. Phipps But what Countryman Rob. French To be born in Martenico Mr. Phipps In whose Dominion is that Rob. French In the French King's Dominion Mr. Justice Turton What occasion had you to discourse of the place of his birth Rob. French Because his Father was look'd upon to be a Frenchman Mr. Justice Turton His Father was a Frenchman Rob. French Yes my Lord and lived at Martenico Mr. Cowper How old might he be at that time Rob. French About fifteen or sixteen Mr. Cowper How came you to be talking of his birth and with whom Rob. French One that was talking with me told me his Name was Vaughan and that he was born there Mr. Cowper What introduc'd this discourse How came he to tell you this that he was born in that place Rob. French His Father told me so Mr. Cowper You were talking of one Vaughan of his Name How many were in company when there was this talk Rob. French There were many of them Mr. Cowper Name them Rob. French It is so long ago I cannot remember them Mr. Cowper Name as many as you can of them as many as you do remember Rob. French One Mr. Bodiken a Factor Mr. Cowper Who else Rob. French Several others Mr. Cowper You named one Vaughan before Rob. French Yes I did Mr. Cowper But you had forgot him now Rob. French No there was one Vaughan L. C. J. Holt. Were there any more Rob. French Yes there was I remember the company that went along with me L. C. J. Holt. Who were they Rob. French There were several Passengers that went over with me L. C. J. Holt. How came you to talk of this man's Nativity Rob. French Because his Father said he had not been out of the Island in 20 years at which the People laught Mr. Cowper What place was this discourse in Rob. French At St. Christophers Mr. Cowper How did his Father's saying he had not been out of that Island in 20 years prove his Son was born there Rob. French Because he recommended him to me as a Sea-faring man Mr. Cowper What is that a Reason of What is that to his being born at Martenico Mr. Justice Turton What Countryman are you Rob. French I am an Irishman born L. C. J. Holt. His Father acknowledg'd himself to be an Irishman born did he not Rob. French No my Lord he did not say where he was born I do not know Mr. Justice Turton Have you continued any acquaintance with Mr. Vaughan since How long did you stay at St. Christophers Rob. French I stay'd but four and twenty hours to take in water L. C. J. Holt. How long was it after this before you saw this
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
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
THE TRYAL AND Condemnation OF Capt. Thomas Uaughan FOR High Treason In Adhering to the FRENCH-KING And for Endeavouring the Destruction of His Majesty's Ships in the NORE Who upon full Evidence was found Guilty at the Sessions-House in the Old-Baily on the 6 th of Novemb. 1696. With all the Learned Arguments of the King 's and Prisoners Council both of the Civil and Common Law upon the New Act of Parliament for Regulating Tryals in Cases of High Treason Perused by Sir Charles Hedges Judge of the High Court of Admiralty the Lord Chief Justice Holt the Lord Chief Justice Treby and the Council Present at the TRYAL To which is Added Captain Vaughan's Commission at Large which he had from the French-King As also an Account of the TRYAL of John Murphey for HIGH TREASON LONDON Printed for John Everingham at the Star near the West-end of St. Paul's 1697. Die Sabbati tricesimo primo Octobris Annoque Regni Regis Willielmi Octavo Annoque Domini 1696. The Court being sate at which were present Sir Charles Hedges Judge of the High Court of Admiralty the Lord Chief Justice Holt the Lord Chief Justice Treby the Lord Chief Baron Ward Mr. Justice Turton and others of his Majesties Commissioners The Court proceeded on this manner Cl. of Arr. MAKE Proclamation Cryer O Yes O yes O yes All manner of Persons that have any thing more to do c. and were Adjourn'd to this Hour draw near and give your Attendance God save the King Then the Grand Jury were call'd over and the Appearances mark'd And Witnesses being Sworn in Court to give Evidence to them against Thomas Vaughan they withdrew to hear the fame Then the Keeper of Newgate was ordered to bring his Prisoner Thomas Vaughan to the Bar. Which he did Cl. of Arr. Tho. Vaughan hold up thy Hand Which he did Thou standest Indicted c. How sayest thou Tho. Vaughan Art thou Guilty of the High Treason whereof thou standest Indicted or Not Guilty T. Vaughan Not Guilty Cl. of Arr. Culprit How wilt thou be Try'd T. Vaughan By God and this Country Cl. of Arr. God send thee a good Deliverance And then the Court proceeded to the Tryal of the Pyrates and gave notice to Mr. Vaughan to prepare for his Tryal on Friday next the 6th of November 1696. Die Veneris sexto Novembris Annoque Regni Regis Willielmi Octavo Annoque Domini 1696. Cl. of Arr. CRYER make Proclamation Cryer O yes O yes O yes All manner of Persons that have any thing more to do at this Sessions of Oyer and Terminer Adjourn'd over to this Day draw near and give your Attendance And you Sheriffs of the City of London return the Precepts to you directed upon Pain and Peril which will fall thereupon Then the Under Sheriff return'd the Precepts Cl. of Arr. Make Proclamation Cryer O yes You good Men of the City of London Summon'd to appear here this Day to try between our Sovereign Lord the King and the Prisoner at the Bar Answer to your Names as you shall be called every one at the first Call and save your Issues The whole Pannel was call'd over and the Appearances of those that answered Recorded and the Defaulters were again call'd over Mr. Phipps Will your Lordship please to order that two Men may be brought from the Marshalsea in behalf of the Prisoner L. C. J. Holt. You shall have an Order Then the Court went on the Tryal of the Six Pyrates and after the Tryal was over Tho. Vaughan was call'd to the Barr. T. Vaughan My Lord my Irons are very uneasie to me I desire they may be taken off L. C. J. Holt. Ay ay take them off Mr. Phipps If your Lordship please we have some doubts as to the Indictment L. C. J. Holt. If you have any Exceptions you ought to have made them before the Prisoner pleaded to it Mr. Phipps I thought you had allow'd it my Lord in former Cases L. C. J. Holt. No we did not allow it as of Right due to the Prisoner the Exceptions should have been made before the Plea You were indulg'd in being heard at first in the Cases of Rookwood Cranburne and Lowick but it was not the intent of the Act to alter the Method of the Proceeding and so upon consideration hath it been determin'd The Prisoner hath time given by the Act to make any exception to the Indictment before he pleaded but you may move what you will afterwards in Arrest of Judgment if it be material Cl. of Arr. Thomas Vaughan Those Men that you shall hear called and Personally appear are to pass between our Sovereign Lord the King and you upon Tryal of your Life and Death if therefore you will Challenge them or any of them your time is to speak unto them as they come to the Book to be Sworn before they be Sworn Mr. Phipps There was one Man here that desir'd to be excus'd because he was on the Grand Jury therefore it seems there are some return'd upon this Jury that were on the Grand Jury which I think ought not to be L. C. J Holt. Challenge them then Mr. Phipps We do not know the Men. Then the Pannel was call'd over and a great many Challenges made and the Twelve Men that were Sworn were these Fd. Leeds Caleb Hook Nath. Green Joceline Roberts Hen. Sherbrook Tho. Parker Jo. Sherbrook Peter Gray Tho. Emms. Roger Poston Peter Parker Woolley Cl. of Arr. Cryer make Proclamation Cryer O Yes If any one can inform my Lords the King's Justices the King's Serjeant the King's Attorney General the King's Advocate in his High Court of Admiralty before this Inquest be taken of the High Treason whereof Thomas Vaughan the Prisoner at the Barr stands Indicted let them come forth and they shall be heard for now the Prisoner at the Bar stands upon his Deliverance and all others that are bound by Recognizance to give Evidence against the Prisoner at the Bar let them come forth and give their Evidence or else they forfeit their Recognizance Cl. of Arr. Tho. Vaughan hold up thy Hand Which he did You that are Sworn look upon the Prisoner and hearken to his Cause He stands Indicted by the Name of Thomas Vaughan Whereas That before and until the 8th day of July in the 7th Year of the Reign of our Sovereign Lord King William the Third there was open War between our said Lord the King and Lewis the French King And that the said War continued on the said 8th Day of July in the 7th Year aforesaid and doth still continue And that for all the time aforesaid the said Lewisthe French King and his Subjects were and at present are Enemies of our said Lord the King that now is And that at the time of the said War and before the said 8th day of July in the 7th Year aforesaid the said Lewis the French King set out amongst others a certain small Ship of Warr called the Loyal Clencarty