THE TRYAL AND Condemnation OF Capt. Thomas Uaughan FOR High Treason In Adhering to the french-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
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
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
Crouch From Calice in France L. C. J. Holt. Prithee hear me this two-and-twenty-Oar-Barge did it belong to any other Ship R. Crouch No not that I can tell L. C. J. Holt. Did he call that Vessel the Loyal Clancarty R. Crouch Yes my Lord. Then Edmund Courtney was call'd Mr. Sol. Gen. Mr. Courtney pray tell my Lord and the Jury what you know of the going away of a Custom-House Boat Ed. Courtney I will tell you if you please Mr. Phipps My Lord I think they ought not to examine to that because it is not laid in the Indictment The carrying away of the Custom-House Barge is not mentioned in the Indictment and by the New Act for Regulating Tryals in Cases of Treason no Evidence is to be admitted or given of any Overt-Act that is not expresly laid in the Indictment L. C. J. Holt. Nothing else Suppose a Man be Indicted for Levying War against the King or Adhering to the King's Enemies can't they prove any Act that makes out a Levying of War or an Adherence to the King's Enemy Mr. Phipps With submission not by that Act my Lord unless it be laid in the Indictment L. C. J. Holt. Levying of War is the Treason may they not prove that Levying of War without being confin'd to any special or particular Act Mr. Phipps With submission by the 25 of Edw. the 3 d. Levying of War as well as Imagining the Death of the King must have the Overt Acts that are to prove it exprest in the Indictment L. C. J. Holt. Levying of VVar is an Overt-Act Mr. Sol. Gen. The business of Overt-Acts is where the Compassing and Imagining the King's Death is the Crime and Question and this must be discover'd by Overt-Acts But if the Treason be falsifying of the King's Money this is Treason but there can be no Overt-Act of that for that is an Overt-Act it self but there must be an Overt-Act to prove the Compassing and Imagining the Death of the King and in no other sort of Treason L. C. J. Holt. Levying of War that is an Overt-Act so is Adhering to the King's Enemies Now Compassing and Imagining the Death of the King is not an Overt-Act in it self but is a secret imagination in the Mind and a purpose in the Heart but there must be external Acts to discover that imagination and purpose Mr. Phipps What is the meaning of the New Act then that there shall be no Evidence of any Overt-Act but what is laid in the Indictment L. C. J. Holt. What Overt-Acts are there in Clipping and Coyning Mr. Phipps That is not within the New Act of Parliament L. C. J. Holt. That is most true the one is excepted the other is not comprehended but the Question is upon the Statute of 25. Edw. 3 d. to which the late Act doth referr Now proving the adherence to the King's Enemy is proving an Overt-Act Suppose it be the killing of the Chancellor or Treasurer or Judge in the Execution of his Office what Overt-Acts will you have then Adhering to the King's Enemies is a Treason that consists in doing an Overt-Act Mr. Phipps Yes my Lord I take it that it is for the New Act by saying that no Evidence shall be admitted of any Overt-Act that is not expresly laid in the Indictment must be intended of such Treasons of which by Law Overt-Acts ought to be laid Now the killing the Chancellor or Treasurer or Judge in the Execution of his Office are not such Treasons of which it was necessary to lay any Overt-Acts in the Indictment and so not within the meaning of this New Law But Levying War and Adhering to the King's Enemies which are the Treasons in this Indictment must by the express purview of the 25 th of Edw. 3. be proved by Overt-Acts which are to be alledged in the Indictment Mr. Sol. Gen. The New Act does not alter the Law in this particular what was Law before is Law now it leaves the Overt-Acts as they were before and it says not that an Overt-Act need to be exprest where it was not needful before Now if a Man be Indicted for Compassing the Death of a private Person there ought to be some Overt-Act to prove his Design but if there be an Indictment for Murther there needs no other Overt-Act to prove it but the Murther it self L. C. J. Holt. But the force of the Objection lies in this viz. To say a Man Levyed War or Adhered to the King's Enemies is no good Indictment but it is necessary to alledge in what manner he Levyed VVar or Adhered to the King's Enemies as that he appear'd in such a war-like manner or did adhere to and assist the King's Enemies by joyning Forces with them or otherwise assisting them or Confederating with them that must be specified But if you Indict a Man generally for adhering to the King's Enemies and not say how and in what manner he did adhere to them that is not a good Indictment therefore if you particularize what Enemies and how and in what manner he adher'd to them no Evidence can be given of any other kind of adherence but that which is so specified in the Indictment Mr. Sol. Gen. Then we must put all our Evidence into the Indictment Mr. Phipps So you must as to the Overt-Acts Mr. Sol. Gen. That will be the same thing as to put in all our Evidence if we must give Evidence of no Overt-Act but what is exprest in the Indictment But I do not take it that the Act requires all Overt-Acts to be put in the Indictment Mr. Phipps The Act says so Suppose you had left out the Overt-Act would the Indictment have been good Mr. Sol. Gen. We did not intend to put in all the Over-Acts but only what related to that part of the Treason Mr. Phipps The Treason must be proved by Overt-Acts and the Overt-Acts that prove the Treason must be mention'd in the Indictment Mr. Sol. Gen. What the Overt-Acts of the Treasons before-mentioned as Counterfeiting the King's Money and the like are all to be mentioned L. C. J. Holt. Consider if you can make that a good Indictment to say that the Prisoner adhered to the King's Enemies without mentioning any Overt-Acts to manifest such an adherence then your Answer to Mr. Phipps is full but if it be not a good Indictment without alledging particular Acts of adherence then it necessarily follows that if Particulars are alledged and you do not prove them as is alledged you have failed in the Indictment and so his Objection will lie hard upon you Mr. Sol. Gen. My Lord we framed our Indictment according to the Letter of the Statute L. C. J. Holt. In compassing the death of the King you must shew how that is manifested by the Overt-Acts Mr. Sol. Gen. But compassing and imagining must be discovered by some Overt-acts L. C. J. Treby This is a doubt I have often thought of I thought it most natural that the Word Overt-act should relate to
them to go and accept a Commission and enter into their Ships of War and List themselves and go out in order to destroy their Fellow-Subjects and ruine the King's Ships these are Actings of an Hostile nature And it this be not adhering c. it may as well be said That if the same Persons had made an attack upon our Ships and miscarried in it that had not been so neither because that in an unprosperous attempt there is nothing done that gives aid or comfort to the Enemy And after this kind of Reasoning they will not be Guilty till they have Success and if they have Success enough it will be too late to question them Mr. Phipps Intending to levy War is not Treason unless a War be actually levied L. C. J. Treby Is it not actual levying of War if they actually provide Arms and levy Men and in a Warlike manner set out and cruize and come with a design to destroy our Ships Mr. Phipps It would not be an actual levying of War unless they commit some Act of Hostility L. C. J. Holt. Yes indeed the going on Board and being in a posture to attack the King's Ships As to the fault you find with the Indictment there is a fault but not in point of Law they might have laid it more generally so as to have given more Evidence Mr. Bar. Powis However it is well enough But for you to say because they did not actually fight it is not a levying of War Is it not plain what they did intend That they came with that intention that they came in that Posture that they came Armed and had Guns and Blunderbusies and surrounded the Ship twice they came with an armed Force that is a strong Evidence of the design L. C. J. Holt. You would make no Act to be aiding and assisting but fighting Mr. Phipps Then next I am in your Lordships Judgment whether the Statute of 28 of Hen. the 8 th by which Captain Vaughan is tried is in force and be not repealed by the first and second of Philip and Mary which saith that all Tryals in Cases of Treason shall be at the Common-Law Now by the Common-Law before the Statute 28 Hen. 8. Treason done upon the Sea was tried before the Admiral or his Lieutenant and my Lord Coke in the 12 Rep. in the Case of the Admiralty saith the Jurisdiction of the Admiralty is by the Common-Law By the Statute 33 Hen. 8. Treason confessed before three of the Privy-Council might be tried in a foreign County but that Statute is repealed by the Statute 1 and 2 of Philip and Mary for by the Statute 33 Hen. 8. c. 4 Treason committed in trales might be tried in what County the King would assign but since the Statute of Philip and Mary it must be in the proper County so that we are in your Lordship's Judgment whether the Statute of 28 Hen. 8. be in force and whether since the Statute of 1 and 2 Philip and Mary Treasons done upon the Sea ought not to be tried before the Admirals or anciently at the Common-Law L. C. J. Holt. This is Treason by the Common Law and the Trial is by the Method of the Common-Law Mr. Phipps 'T is true that my Lord Coke and other Authorities say That the Statute 35 Hen. 8. for trying Treasons committed beyond Sea is not repealed by the Statute of 1 and 2 Philip and Mary but they do not say that this Statute is not repealed by the Statute of Philip and Mary and the Books being silent in this is the reason why I propose this Question for your Lordship's judgment L. C. J. Holt. It is no more a Question than the Tryals of foreign Treason and then the Determination of the Tryals upon the 35 th determines the Question upon this Dr. Oldys We must have two Witnesses by the Rules of the Civil-Law an extrajudicial saying of a Party may be retracted by them at any time that is the Civil-Law and so there can be out one Witness L. C. J. Holt. That is not the Law of England Dr. Oldys I do humbly conceive that the Civil-Law is not taken away in this Case for though the Statute prescribes the form of Proceedings according to the Rules of the Common-Law yet as to the Crimes and Proofs the Civil-Law is still in force and then the Party may retract his Confession in Judgment much more any extrajudicial saying Mr. Whitaker You are arraigning the Verdict L. C. J. Holt. That you should have taken notice of before the Verdict was given But we think there is no danger in hearing this Objection because it is so easily answered How many Witnesses were to the Confession Sir Ch. Hedges We are not in a Court that proceeds according to the strict Rules of the Civil-Law but if we were that Law is not so absurd as to allow that a Party may retract his Confession at any time so as to make it have no effect Dr. Oldys There must be two Witnesses at any time Sir Ch. Hedges So there are here to the Confession but you mistake if you think that every particular is to be proved strictly as the Civil Law requires for the end of the Statute which directs the Proceedings of this Court was to facilitate the Method of making Proofs that being sound difficult by the course of the Civil-Law and therefore was that Statute made as plainly appears by the Preamble thereof Dr. Oldys There is a new Statute that revives that Statute again and that requires two Witnesses whereby 't is reduced to the Rules of the Civil-Law again L. C. J. Holt. Two Witnesses there must be but then consider it is not necessary to have two to every individual Overt-Act For suppose there be two Overt-Act laid in the Indictments for one species of Treason Compassing and Imagining the Death of the King if there be one Witness that he bought a Dagger and said he would kill the King and he is seen it may be going to the King's Bedchamber with the Dagger another Witness says he said he would kill the King with a Pistol and bought a Pistol and he stood waiting to kill the King as he came by that is another Overt-Act of the same Treason If one Witness prove one and another Witness prove the other this is sufficient Proof with us Dr. Oldys It is another Question Whether he be a Subject L. C. J. Holt. That is not an Overt-Act if there be one Witness to that it is enough there needs not two Witnesses to prove him a Subject but upon the Tryal there were above two Witnesses to prove it There was Crittenden the Marshal of Dover Cray and Rivet I must tell you as to the Doctrine of the Civil-Law it is not universally received in all Countries it is received in several Countries as they find it Convenient and not as Obligatory in it self Dr. Oldys Yes in all places as to Proof for 't is the Law of God and