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
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
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
desired him to be Godfather And about two days after I went from Port-Royal to St. Christophers again and I came to Rhoan again in a Ship called St. Joseph So in 1677 I went to St. Christophers again and from thence to Martenico to Mr. Williams I asked him what is become of that Young man we were at the Christening and so he shewed me him that is here pointing to the Prisoner L. C. J. Holt. That was in 1677. Mr. Dascine In 1677. So I came from Port-Royal I went to St. Christophers and so took Sail and came to France again And 13 years ago I went to St. Christophers again and to Mountserat and Martenico and so when I was at Martenico and asked Mr. Williams of this Young man that I was at his Christening and he said He is at such an House and I saw him there L. C. J. Holt. Thirteen Years ago Mr. Dascine And we went and drank Punch together and I came back for Rhoan L. C. J. Holt. VVhen did you see him since that Mr. Dascine Never till I saw him here a Prisoner L. C. J. Holt. How do you know he is the man Mr. Dascine He has a bruise in his side Mr. Phipps What was the Gentleman's Name at the Christning of whose child you were Mr. Dascine Thomas Vaughan Mr. Phipps What was the child's Name Mr. Dascine Thomas Vaughan Mr. Phipps When you went the next time to Martenico did Mr. Williams you speak of that was the Godfather present this Person Capt. Vaughan to you as the man who was then christened Mr. Dascine Yes the next time Mr. Phipps Now is Captain Vaughan that stands at the Bar that very Gentleman Mr. Dascine I am sure it is he L. C. J. Holt. You say this meeting was about 1669. Mr. Dascine Yes Mr. Soll. Gen. Pray what was the reason you were so inquisitive to know what became of that Person that was christened when you was there Mr. Dascine Because I being at the Christening I ask'd him how the child did L. C. J. Holt. How came you to take such extraordinary Observation of that child Was he such a remarkable child Dr. Newton Where were you born Mr. Dascine In France Mr. Whitaker What are You Mr. Dascine A Barber by Trade L. C. J. Holt. What Imployment have you Mr. Dascine An Officer in the Marshal's Court sometimes Mr. Justice Turton What was this man's Father what sort of man was he Mr. Dascine A tall man Mr. Bar. Powis What was his Father's Name Mr. Dascine Thomas Vaughan Mr. Justice Turton Was his Father living when you was there the second time Mr. Dascine The last time I was there I did not see his Father but I saw his Father the second time Mr. Justice Turton But you saw Mr. Williams his Godfather Mr. Dascine Yes Mr. Phipps Call Simon Danneaun Tho. Vaughan My Lord he is sick and not able to come out of his bed Mr. Phipps Call Francis Harvey who was sworn Mr. Phipps Do you know Captain Vaughan Fr. Harvey Sir In the year 1693. I was in France with one Captain Bontee who was taken Prisoner in August the same year and my Captain he had the liberty to go upto Paris with a Guard for his pleasure and to learn the Speech And as it happened we came to lodge in a street called Dolphinstreet at the sign of the Crown And there was some Gentlemen that were there to learn the Speech that were my Countrymen and there was a Young man there and he was acquainted over the way where this Gentleman Capt. Vaughan lodged He lodged at his Aunts that sold Silks her Name was Madam Wotton I saw this Gentleman there I am sure it is he and with that I came acquainted with him as well as the restâ— Mr. Phipps What was he reputed there Fr. Harvey A Captain of a Ship Mr. Phipps VVhat did he go for there a Frenshman or an Englishman or an Irishman Fr. Harvey He went for a Frenchman as I heard One time his Aunt she said that he was born in the West Indies at Martenico and that he was her Sisters Son that lived in Martenico Mr. Sol. Gen. You say he was a Captain of a Ship what Ship Fr. Harvey That I cannot tell Mr. Soll. Gen. VVhen was that Fr. Harvey In 1693. Mr. Phipps Is Mr. Le-fleur here Cl. of Arr. He is a Prisoner in the Savoy he was taken in the same Ship with Mr. Vaughan Mr. Phipps It is reasonable he should have been here to give an Account of the Prisoner L. C. J. Holt. Then they should have taken care to have had him here Have you any more VVitnesses Mr. Soll. Gen. I think we have given sufficient Evidence that he is an Irishman but now we shall shew you that all your VVitnesses have given a very extravagant Evidence to prove that he is a Frenchman All he hoped for was that the Prosecutors for the King could not be able to prove him an Irishman He believed there were but 3 men could prove him so that was David Creagh and 2 more and so he writes to David Creagh and tells him That his life was in his power and he hoped he and the other 2 would not discover it This David Creagh was his Neighbour in Ireland VVe will call him to prove that Capt. Vaughan was born at Galloway in Ireland Mr. Whitaker And here is his Letter under his Hand Bring David Creagh who was sworn Mr. Cowper I desire before he give his Evidence he may look upon those that have given Evidence about the Prisoner one by one Then he lookt up on Rob. French Mr. Creagh do you know him Dav. Creagh No. Then he look'd upon the rest Mr. Cowper Have you had any of these men come to you on a message D. Creagh No Sir Mr. Soll. Gen. Do you know Tho. Vaughan the Prisoner at the Bar D. Creagh Yes I do Mr. Soll. Gen. How long have you known him D. Creagh About 2 years Mr. Soll. Gen. VVas that your first Acquaintance with him D. Creagh Yes Mr. Soll. Gen. VVhat place vvas he born at as you have heard D. Creagh At Galloway in Ireland Mr. Soll. Gen. From vvhom did you hear it D. Creagh From all persons that I have heard speak of him Mr. Soll. Gen. Did he ever ovvn to you that he vvas born there D. Creagh Yes oftentimes in my company Mr. Sol. Gen. Did you ever receive a Letter from him about your giving Evidence in this matter D. Creagh Yes Sir Mr. Soll. Gen. Do you knovv this Letter vvhich was shovvn him D. Creagh Yes Sir Mr. Soll. Gen. Do you knovv his Hand D. Creagh Yes I partly knovv it Mr. Whitaker Did you ever see him Write D. Creagh This is the Letter I received from him L. C. J. Holt. Read it Do you think it is his Hand D. Creagh I cannot swear it but I believe it is his Hand Mr. Phipps Have you seen him Write D. Creagh I have seen