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he was tried upon his consenting to carry away the ship.

L. C. J. Holt. What do you mean by consenting? If a ship be carried away with force from the captain, divers piracies are committed with her, one continues aboard and receives a share of the profit of the several piracies; is not that an evidence of consent to the piratical design? Was it not proved that many went out of the ship that were not willing to go on that design? And that was with the leave of the rest that remained.

Just. Eyre. And one stood on the deck, and said with a loud voice, that they that will not go, may have liberty to go ashore.

Mr. Conyers. No man was hindered but the Doctor, being a useful man.

L. C. J. Holt. When a ship is run away with, and people are aboard that ship so run away with, that proves their consent, unless they can produce evidence to the contrary. Just. Turton. The captain was in his bed sick of a fever at that time, and was not willing to go with them, and they sent him away from them.

Just. Eyre. And every man had his share. Then the Jury consulting together a very little time, agreed on their verdict.

Cl. of Ar. Gentlemen of the jury, answer to
J. Degrave.

your names.

J. Degrave. Here. (And so of the rest.)
Cl. of Ar. Gentlemen, are you all agreed of
your verdict?-Jury. Yes.

Cl. of Ar. Who shall say for you?
Jury. Our foreman.

Cl. of Ar. Set E. Forseith to the bar.
E. Forseith, hold up thy hand. (Which he
did.) Look upon the prisoner; is Edward
Forseith guilty of the piracy and robbery
whereof be stands indicted, or not guilty?
Foreman. Guilty.
Cl. of Ar. Look to him, keeper.
goods and chattels, &c.

Foreman. None that we know of.

What

Cl. of Ar. W. May, hold up thy hand. (Which he did.) Is W. May guilty, &c. or not guilty?-Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. W. Bishop, hold up thy hand. (Which he did.) Is W. Bishop guilty, &c. or not guilty? Foreman. Guilty.

J.

Cl. of Ar. Look to him, keeper, &c.
Lewis, hold up thy hand. (Which he did.)
Is J. Lewis guilty, &c. or not guilty?
Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. J.
Sparkes, hold up thy hand. (Which he did.)
Is J. Sparkes guilty, &c. or not guilty?
Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. L. C. J. Holt. Gentlemen, you have done extremely well, and you have done very much to regain the honour of the nation, and the city.

Then the Court adjourned to Friday next the 6th of November, two of the clock in the VOL, XIÌI,

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afternoon, on which day Edward Forseith, &c.
were tried upon two other Indictments for se-
veral piracies.

An Abstract of the Trial of Edward Forseith,
James Lewis, William May, William Bi-.-
shop, John Sparkes, (Joseph Dawson hav-
ing pleaded Guilty upon his Arraignment)
at the Sessions House in the Old Bailey,
Friday, November 6, 1696, where were
present Sir Charles Hedges, Judge of the
High Court of Admiralty, the Lord Chief
Justice Holt, the Lord Chief Justice Treby,
with several others of his Majesty's Judges
and Commissioners,

VIZ.

After several challenges made by the pri-
soners, of the persons returned upon the Jury,
these twelve gentlemen were sworn,
Roger Mott, John James, Richard Rider,
William Hunt, John Hammond, Abraham
Hickman, John Watson, Benjamin Hooper,
William Hatch.
John Hibbert, Richard Chiswell, Daniel Ray,

Then the Clerk read the two Indictments upon which they were tried, viz. one for seizing, robbing, and carrying away two ships belonging to Denmark, on the 30th of August, 1694. The other for that they, on the 28th of September, 1695, in a place 40 leagues distant from Surat, did forcibly and piratically set upon a Moorish ship, and take away her tackle and goods, to a great value.

Then Dr. Newton, one of his Majesty's Advocates, spoke to the Jury as followeth:

My Lord, and Gentlemen of the Jury; The crime the prisoners at the bar stand charged with, and which has been opened to you the worst sort of robbery, both in its naupon the indictments, is piracy; which is ture and its effects, since it disturbs the comtions; and if left unpunished, involves them merce and friendship betwixt different nain war and blood: for sovereign powers and nations have no courts of justice afterwards to resort to, as the subjects of princes have, in their own countries, for redress or punishment; but they can only have recourse to arms and they are, and what calamities and ruin they war, which how expensive, and how dangerous carry along with them, no person can be a stranger to. So that those who bring not such criminals to judgment, when it lies in their power, and is their duty to do so, are answer. able, in a great measure, before God and man, for all the fatal consequences of such acquittals, which bring a scandal on the public justice, and are often attended with public calamities. It is not therefore, gentlemen, to be supposed, that wise or honest men, (and there are none who would be thought to be otherwise) who love their country, and wish its peace and prosperity, would be guilty in that kind.-Gentlemen, this piracy was begun in Europe, carried on through Africa, and ended in the remotest Indies; so that, in a manner, all the world is concerned in this trial, and ex

21

pects and demands justice of them, if they are guilty, at your hands.

Then the Witnesses were produced to prove the facts charged upon the prisoners, viz. Jo. Dean, David Creagh, Phil. Middleton, and others; who fully proved against them, That the prisoners, with several other wicked persons not yet taken, did forcibly take away the ship Charles the Second from the lawful commander, captain Gibson, with a piratical design; and in the said ship did afterwards commit several piracies. At the Isle of May they took three English ships. From thence they went to the coast of Guinea; and when some of the natives came on board with their gold, to trade with them, they took away their gold, and carried them away for slaves. And then went to the Isle of Princes and took two Danish ships, and took out what was in them, viz. 40 pound weight of gold dust, and other merchandize; and they offered to restore one of the ships to the master after they had robbed her, but the master said she was insured, and he would not take her again. And afterwards they burnt one of the ships, and carried away the other. Then they went to Bob's Key, at the mouth of the Red Sea, waiting for the Mocha fleet, which one night passed by them unseen; but were informed the next day that they were gone. And then calling a council, they agreed to follow them; and accordingly went after them, and came up with one of them which was about 250 ton, and with small resistance took her, and put some men on board her, and took gold and silver out of her to the value of 30 or 40,000l. with other merchandize: and afterwards met with the ship called the Gunsway, and robbed her likewise of all her furniture, to a very great value. And about a week after, they shared all the prizes they had taken; and some had 1,000l. some had 8001., some 700l. some 500l. every man in the ship his share, as they thought they deserved. And it was particularly proved by the evidence against the prisoners, that they had their shares. [The more particular relation of which is already printed at large in the foregoing Trial.]

When the king's evidence had done, the prisoners were permitted to say what they could in their defence; but the same appearing to be very weak, the lord chief justice Holt summed up the evidence; and the jury going out to consider their verdict, after a short stay, brought them in all Guilty.

Then the Court adjourned to the 10th of November following.

After the Trial of John Murphrey was over, the Pirates were brought to the Bar.

Cl. of Ar. Joseph Dawson, you by your own confession are convicted of piracy and robbery: what have you to say why sentence of death shall not be passed upon you according to law?

Dawson. I submit myself to the king and the honourable bench.

Cl. of Ar. Edward Forseith, what have you to say, &c.

Forseith. I am an innocent man;-and went on to justify himself, &c.

Judge of the Admiralty. You and the rest of the prisoners at the bar have had a very fair trial, and been fully heard upon your defence ; but the jury, your countrymen, upon whom you put yourselves to be tried, have found you guilty: so that the insisting upon your justifi. cation cannot now avail you any thing, the verdict being given; but if you have any thing to offer in arrest of judgment, or can shew any cause why the court should not proceed to give judgment according as the law directs, against persons convicted of piracy, you shall have liberty to speak, and will be heard.

Forseith. I desire to be sent into India to suffer there.

Cl. of Ar. William May, what have you to say, &c.

May. My lord, I being a very sickly man, never acted in all the voyage. I have served my king and country this thirty years, and am very willing to serve the East-India company where they please to command me; and desire the honourable bench to consider my case, and if I must suffer, I desire to be sent into India to suffer there.

Cl. of Ar. William Bishop, what have you to say, &c.

Bishop. I was forced away; and when I went, was but 18 years old, and am now but 21, and desire mercy of the king and the court.

Lewis. I am an ignorant person, and leave myself to the king's mercy.

Sparkes. I leave myself to the king's mercy, and to the honourable court.

Judge of the Admiralty. Joseph Dawson, you stand convicted upon four indictments, by your own confession, for piracy and robbery. And you, Edward Forseith, William May, William Bishop, James Lewis and John Sparkes, having put yourselves upon your trials according to the customs and laws of your own country, have been found guilty upon three several indictinents, for the same detestable crimes committed upon the ships and goods of Indians, of Danes, and your own fellow-subjects. The law for the heinousness of your crime hath appointed a severe punishment, by an ignominious death and the Judgment which the law awards, is this:

That you and every one of you be taken 'from hence to the place from whence you 'came, and from thence to the place of exe'cution; and that there you, and every one of you be hanged by the necks, until you and 'every one of you be dead: and the Lord have mercy upon you.'

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According to this sentence, Edward Forseith and the rest were executed on Wednesday, November the 25th, 1696, at Execution-Dock, the usual place for the execution of pirates,

393. The Trial of Captain THOMAS VAUGHAN, at the Old-Bailey, for High-Treason on the High Seas: 8 WILLIAM III. A. D. 1696.*

THE Court being sat, 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 majesty's commissioners; the court proceeded on this

manner.

Cl. of Ar. Make proclamation.

Cryer. O yes, O yes, O yes. All manner of persons that have any thing more to do,

* See 2 Salk. 634, and Holt, 689. See also East's Pl. Cr. c. 2. s. 40. 43.

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Captain Vaughan was not an alien enemy, but being a natural born subject of this realin, he became a traitor; for that he was put in prison, for that he answered, and with his life. But it was for that act of hostility merely. With regard to his character of a subject he remained till the moment of his execution, as if that act had never been committed. There is very little light to be procured from our books, to assist us in our inquiry, how far a neutral joining in an act of hostility is to be considered as having acquired the character of alien enemy. The subject was indirectly dis. cussed in the case of captain Vaughan, to which I have alluded. He was charged in the indictment with adhering to the king's enemies by cruising cum subditis Gallicis; the fact was that many of his crew were not natural born subjects of the French king, but Hollanders. It was made a question whether the Hollanders should be called subditi Gallici,' and though the point was not authoritatively decided because some of the crew were certainly French, which was sufficient to support the indictment, yet it was held by Holt, C. J. and agreed to by the rest of the court, that the Hollanders by accepting a commission from the French king became subditi Gallici,' and so remained during the continuance of their service in a state of qualified subjection arising out of the service and determining with it. This, had it been the very point in judgment, would have gone a great way towards deciding the present question. The commission under which the plaintiff being a German acted was put an end to by the capture of the frigate, in which he was. After that time he had no opportunity of continuing in the service of the state of Holland, and his temporary character of alien enemy ceased and determined with the authority under which he acted. Captain Vaughan's case as far as it goes draws a line and fairly marks out when that character begins and when it shall end." Per Eyre, Chief Justice in giving judgment in the case of Sparenburgh 7. Bannatyne. 1 Bos. and Pul. Rep.

&c. and were adjourned to this hour, draw near and give your attendance. God save the king.

the appearances marked. And witnesses beThen the Grand Jury were called over, and ing sworn in court to give evidence to them against Thomas Vaughan, they withdrew to bear the same.

Then the Keeper of Newgate was ordered to bring his prisoner, Thomas Vaughan, to the bar. (Which he did.)

Cl. of Ar. Thomas Vaughan, hold up thy hand. (Which he did.) Thou standest indicted, &c. How sayest thou, Thomas Vaughan, art thou guilty of the high-treason whereof thou standest indicted, or not guilty? Vaughan. Not Guilty.

Cl. of Ar. Culprit, how wilt thou be tried? Vaughan. By God and this country. Cl. of Ar. God send thee a good deliverance. And then the Court proceeded to the Trial of the Pirates, and gave notice to Mr. Vaughan to prepare for his Trial on Friday next, the 6th of November, 1696.

November 6, 1696.

Cl. of Ar. 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, adjourned over to this day, draw near and give your at tendance. 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 returned the Precepts. Cl. of Ar. Make proclamation.

of London, summoned to appear this day, to Cryer. O yes. You good men of the city try between our sovereign lord the king and the prisoner at the bar, answer to your names and save your issues. as you shall be called, every one at the first call,

The whole pannel was called over, and the appearances of those that answered recorded, and the defaulters were again called over.

Mr. Phipps: Will your lordship please to order that two men may be brought from the Marshalsea, on the behalf of the prisoner?

* That the st. 7 W. 3, c. 8, extends to persons indicted under st. 28 H. 8, c. 15, for hightreason committed on the high seas, see East's Pleas of the Crown, c. 2. s. 43. Whether corrup tion of blood is wrought by judgment of treason committed on the high seas, see East as above, and Foster's Crown Cases, &c. there cited, pp.

222. 226. 1 H. P. C. c. 27. Salk. 85.

L. C. J. Holt. You shall have an order. Then the court went on the trial of the Six Pirates; and after the trial was over, Thomas Vaughan was called to the bar.

Vaughan. My lord, my irons are very uneasy 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 bave 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 allowed it, my lord, in former cases.

:

L. C. J. No, we did not allow it as of right due to the prisoner; the exceptions should have been made before the plea. You were indulged 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 determined. 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 Ar. Thomas Vaughan, hold up thy band. (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 W. 8, 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 Lewis the 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 war, 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 fifteen persons, in a warlike manner, to take and destroy the ships, goods, and monies 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, mariner, 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 Then the Pannel was called over, and a lord the king ought by law to have towards great many challenges made, and the twelve the said king; and the said war as much as men that were sworn, were these: Edward in him lay, against our said lord the king deLeeds, Nath. Green, Hen. Sherbrook, J. Sher-signing and intending to prosecute and assist; brook, T. Emms, Peter Parker, Caleb Hook, Joceline Roberts, Tho. Parker, Peter Gray, Roger Poston, Woolley.

Cl. of Ar. Thomas Vaughan, those men that you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, upon trial of life and death; if therefore you 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 desired to be excused, because he was on the grand-jury; therefore it seems there are some returned upon this jury that were on the grandjury, which I think ought not to be.

L. C. J. Challenge them then.
Mr. Phipps. We do not know the men.

--

of July, in the said 7th year of the king being a the said Tho. Vaughan, on the said 8th day soldier a-board the ship of war, 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 traitorously 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, falsly, and traitorously sailed a cruising to several maritime 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

Cl. of Arr. Cryer, make proclamation. Cryer. O yes. If any one can inform my lords the king's justices, and 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 bar, 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.

* See the preceding Case.

+ East's Pl. Cr. c. 2, s. 46. Layer's Case, infra, A. D. 1722.

*East's Pl. Cr. c. 2, s. 54.

our said lord the king, and also against a statute in that case made and provided.

"And the said jurors of our said lord the king, upon their said oaths, farther represent, that the aforesaid Thomas Vaughan, as a false traitor against our said lord the king, further designing, practising, and with his whole strength intending the common peace and tranquillity of this kingdom of England to disturb; and a 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 other false rebels and traitors (to the jurors unknown), war against our said now lord the king, prepared, prompted, levied, and waged. And that the said Thomas Vaughan in performance of bis said war and rebellion, then and there, by force and arms, maliciously, wickedly, and openly assembled and joined himself with several other false traitors 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 traitors as aforesaid, maliciously, wickedly and traitorously sailed a cruising to several maritime places, with the aforesaid ship of war, 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.

The Indictment in Latin runs thus: "Jurat' pro Dom' Rege super sacram' suum præsentant, quod ante & continue usque ad octav' diem Julii, anno regni dom' nostri Willielmi tertii, Dei gratia Angl', Scot', Franc', et Hibern' Regis, fidei defensor', &c. 7. fuit bellum apertum inter Dom' Willielmum nunc Regem Angl', &c. et Ludovicum Regem Gallicum, quodque bellum illud eod' 8. die Julii, anno 7, supradict', et semper postea hucusq'

Upon this Indictment he hath been arraigned, and upon this arraignment he hath pleaded not guilty; and for his trial he hath put himself upon God and his country, which country you are. Your charge is to enquire whether continuat' fuit, et adhuc existit, quodque per totum tempus præed' dictus Ludovicus Rex Gallicus, et ejus subdit', fuer', et adhuc existunt inimici dicti Dom' Regis nunc, ac quod tempore belli illius, et ante prædict' octavum diem Julii, anno septimo suprad', dict' Ludovicus Rex Gallicus (int' al') quand' navicul' armat', vocat' Le Loyal Clencarty' (cujus Tho' Vaughan subdit' dicti Dom' Regis nunc Ang!', &c. adtunc fuit capitaneus) cum quamplur' subdit' Gallicis, inimicis dicti Dom' Regis nunc, ad numerum 15. personar' replet, præparavit ad naves ac bona, catall', et denar' dict' Dom' Regis nunc Angl', &c. et subditor' suor' super alto mari, ac infra jurisdict' admiralitatis Angl' modo guerrino capiend' et spoliand', et bellum præd' contra dict' Dom' Regem nunc super alto mari, ac infra jurisdiction' admiral' Ang!' præd' gerend': Quodque tempore belli præed' inter ipsum Dom' Regem nunc, et præd' Ludovicum Regem Gallicum, Thomas Vaughan nuper de Galloway in regno Hibern' nauta, existens subdit' ejusdem Dom' Regis nunc Angl' &c. ut falsus proditor contra eundem Dom' Regem nunc, supremum Dom' suum, timorem Dei in corde suo non habens, nec debit' ligeanc' suæ ponderans, sed instigatione diabolica mot' et seduct', cordialem dilectionem, ac veram et debitam obedientiam, quas quilibet verus et fidelis subdit' dict' Dom' Regis nunc erga ipsum Dom' Regem de jure gerere tenetur, penitus subtrahens, ac machinans et intendens, quantum in se fuit, bellum prædict' contra dictum Dom' Regem nunc prosequi et auxiliari, idem Thomas Vaughan dicto 8. die Julii, anno regni dict' Dom' Regis nunc 7. supradicto, vi et armis, &c. super alto mari in quodam loco circa 14 leucas a Deal distante, ac infra jurisdiction' admiral' Angl', seipsum præfat Thomam Vaughan ut militem (Angl' a Soldier) ad bellum præd' contra dict' Dom' Regem nunc geren' et prosequen', in servitium ipsius præfat' Ludovici Regis Gallici, in navicul' armat' pred', vocat' Le Loyal Clencarty,' falso, malitiose, nequissime, et proditorie posuit; et quod ipse idem Tho' Vaughan in navicul' armat' præd', vocat' Le Loyal Clencarty,' adtunc et ibidem sic existen', vi et armis, &c. adtunc et ibidem super alto mari præd', ac infra jurisdiction' admiralitatis Ang præed', dictis inimicis dicti Dom' Regis nunc, in dicta navicula armata, vocat' Le Loyal Clencarty,' adtunc et ibidem scilicet existen', falso, malitiose, nequissime, et proditorie fuit adhærens, auxilians, et comfortans; et quod præed' Tho' Vaughan in execution' et performatione adhesionis, auxiliationis, et comfortationis suæ præed' postea, scil' dicto 8. die Julii, anno supradict', ibidem super alto mari præd', ac infra jurisdiction' admiralitat' Angliæ, simul cum dictis inimicis dict' Dom' Regis nunc, in navicul' armat' præd', vocat'

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