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 grand-moved and seduced by the instigation of the jury, which I think ought not to be.

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

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 Angl', &c. adtunc fuit capitaneus) cum quamplur' subdit' Gallicis, inimicis dicti Dom3 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 præd' inter ipsum Dom' Regem nunc, et præd' Ludovicum Regem Gallicum, Thomas Vaughan nuper de Galloway in regno Hibern' nauta, exis

"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, pre-tens subdit' ejusdem Dom' Regis nunc Angl' pared, prompted, levied, 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 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 Ang', &c. et Ludovicum Regem Gallicum, quodque bellum illud eod' 8. die Julii, anno 7, supradict', et semper postea hucusq'

&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 Juhi, 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' præd', vocat' Le Loyal Clencarty,' falso, malitiose, nequissime, et proditorie posuit; et quod ipse idem Tho' Vaughan in navicul' armat' præed', 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 præd', 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 præd' Tho' Vaughan in execution' et performatione adhæsionis, auxiliationis, et comfortationis suæ præd' 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' præed', vocat'

he be guilty of the high-treason whereof he| Vaughan, with several other false traitors, did stands indicted, or not guilty. If you find him levy war, and arm themselves with arms, ofguilty, you are to enquire what goods or chat-fensive and defensive, and was cruising on the tels, Tands or tenements he had at the time of high-seas, off of Deal, with an intent to take the high-treason committed, or at any time the king's ships, and to kill and destroy the since. If you find him guilty, you are to en- king's subjects, against the duty of bis allequire whether he fled for it. If you find that giance, and the peace of our sovereign lord the he fled for it, you are to enquire of his goods king, his crown and dignity. To this indictand chattels, as if you had found him guilty. ment he has pleaded not guilty. We shall call If you find him not guilty, nor that he did fly our witnesses, and prove the fact, and doubt for it, you are to say so and no more; and not but you will do your duty. bear your evidence.

Mr. Whitaker. May it please you, my lord, and the gentlemen of the jury, the prisoner at the bar, Thomas Vaughan, stands indicted for high-treason: that whereas on the 9th of July, there was a war between his majesty the king of England, and Lewis the French king; amongst other warlike 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 traitor, did list himself aboard this ship; and on the high-seas, about eleven leagues from Deal, did traitorously aid the king's enemies to take the king's ships. This is said to be against the duty of his ailegiance, and the peace of our sovereign lord the king, his crown and dignity. He stands further indicted, for that he, the said Thomas

Le Loyal Clencarty,' ad unc et ibidem existen' ad quamplur' locos maritimos in eadem navicul' armat', vocat' Le Loyal Clencarty,' in exploratione (Anglice cruising) ea intentione, ad prædand' naves, bon', catall' et denar' ejusdem Dom' Regis, et subditor' snor' super alto mari pred', ac infra jurisdiction' præd, vi et armis, &c. malitiose, nequissime, et proditorie navigavit, contra ligeanc' suæ debitum, contra pa- | cem dicti Dom' Regis nune, corou' et dignitat' suas, &c. necnon contra formam statut' in hujusmodi casu edit' et provis', &c.

Dr. Littleton. Gentlemen of the jury, you have heard the indictment opened, as 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 murder and destroy his fellow-subjects, and as much as in him lay, to ruin his native country, by ruining the trade and traffic, which is the great support and riches of the nation. And that this crime might be consummate, he, with his accomplices, has done what in him lay, to dethrone and dispossess his sacred majesty; as well knowing it was in vain to expect to make the nation unhappy, as long as we enjoy so great and good a prince. So that you are to look on the prisoner as an ene my and traitor to his own country; and not ravit, ordinavit, levavit, & gessit ; & quod idem Thomas Vaughan, in executione & performa tione guerræ & proditionis suæ præd' adtunc et ibidem, seil' præd' octavo die Julii, anno 7 suprad', super alto mari circa 14. leucas a Deal distante, ac infra jurisdiction' adoniralitat' Angl' in dieta navicul' armat', vocat' Le Loyal Clencarty,' vi & armis, &c. cum quamplur' aliis falsis rebellib' & proditoribus, jur' præď' ignot' ad numerum 15. personar', modo querrino armat' & arraiat', viz. tormentis, & al' armis, tam invasivis, quam defensivis, vi & armis, "Et jur' præd', pro dicto Dom' Rege super &c. falso, malitiose, & proditorie, adtune & sacram suum præed' ulterius præsent', quod ibidemn congregať' & assemblat' existen', præd' T. Vaughan, ut falsus proditor contra seipsum simil' arinat' & arraiat', malitiose, dict' Dom' Regeru nune Angi', &c. suprem' proditor', & aperte assemblavit & conjunxit; & 'Dom' suum ulterius machinaus, practicans, et quod præd' T. Vaughan adtune & ibid` in dieta tota vi sua intendens pacem et communem tran. navicul' armat', vocat' Le Loyal Clencarty.' quillitat' by jus regni Angl' perturbare, et guer- cum dictis al' falsis rebellibus & proditorib' rain et rebellion' contra diet' Dom' Regem (sicut præfertur) assemblat' existen', postea, super alto mari præd`, ac infra jurisdiction' ad- scil' dicto 8. die Julii, anno 7. supradict,' super miralita.' Ang!' suscitare, movere, et procurare, alto mari præd', ac infra domin' coron' Angliæ, et dict' Dom' Regem a titulo, honore, & regali, & infra jurisdiction' admiralitat' Angl' pred', nomine, coron' imperial' regui sui Ang)', & simul cum dictis al' rebell' & proditorib', in nadominior' suor' super alto mari præd' deponere vicul' armat' præd', vocat' 'Le Loyal Clencarty,' & deprivare, & stragem miserabilem subditor' adtune & ibidem, ad quamplur' locos maritimos ejusdem Dom' Regis nune hujus regni sui in eadem navicul' armat', vocat' Le Loyal Ang' super alto mari, ac infra jurisdiction' ad- Clencarty,' in exploration' (Angl' cruising) ea miral' Ang' præed' navigan', causare & pro-intentione ad prædand', spoliand' & asportand' curare, præd' 8. die Julii, anno regni dicti naves, bond', catall', & denar' dicti Dom' Regis, Dom' Regis nunc 7 suprad', super alto mari, & subdit' snor' super alto mari præd', ac infra circa 14 leucas a Deal distante, ac infia domi-jurisdiction' prædict', vi & armis, &c. malitiose, nium coron' Angl', & infra jurisdiction' adiniralitat' Angl' falso, malitiose, diabolice, & proditorie, vi & armis, &c. cum quamplur' al' falsis rebellib' & proditorib', jur' præd' iguot', gueiram contra dict' Dom' Regem nunc pa

nequissime, & proditorie navigavit, contra ligeanc' su debit', contra pacem dicti Dom' Regis nunc, coron' & dignitat' suas, &c. necnon contra forinam statut' in hujusmodi casu edit' & provis', &ce."

prisoner is certainly guilty of aiding the king's enemies: and to prove he was guilty of this, we will prove to you, that even in France, where he was at perfect liberty, he owned he was the contriver of all this, and that be had a thousand pound for his share of what was taken from our merchants. If we prove these two facts against him, I doubt not but you will find him guilty. We will call our witnesses. Cl. of Air. T. Eglington, Rich. Crouch, Samuel Oldham, John Bub, Noden. (Who appeared, and were sworn.)

only so, but as one of the worst and most dangerous enemies; since he being a subject of these islands, was the better able to spy out our weaknesses and defects, and thereby to do us the greater mischief. It is not to be expressed what ruin and desolation it would have caused to this nation, had this man and his accomplices brought their wicked intentions to effect. And all this was done to aid and assist the grand enemy of Christendom, and of our own country in particular, the French king. Therefore, as you are lovers of your king and country, and your fellow-subjects, whom the pri soner and his accomplices would have destroyed; I am sure you will take care to do the nation justice, and that he be brought to condign' 'punishment. Gentlemen, there is one thing further that I must not omit, viz. That the prisoner at the bar being in custody for these very crimes about a twelve-month since, did not think fit to trust to his innocency, nor to bis pretended French extraction, but the day before he was to be tried, he thought fit to break prison, withdraw from justice, and run his country: which, though not a confession and full proof, yet is a great evidence of his guilt.

Sol. Gen. (Sir John Hawles.) May it please your lordship, and you gentlemen of the jury, the prisoner at the bar, Thomas Vaughan, stands indicted for two sorts of treason: the one is for levying war against the king, the other is for aiding and abetting the king's enemies. And to prove the first, the levying of war, we shall prove that he was a captain of a French ship, called the Granado, of St. Maloes; and that with that ship he took and carried away many of his majesty's subjects, and took several merchant ships, and carried them to France. We shall likewise prove that he was captain of another French ship, called the Loyal Clencarty, with which he was cruising off of Deal, where we had several ships lying at the same time: and there he being on board the said ship Clencarty, was taken prisoner, with a commission, by which he was constituted captain of the Loyal Clencarty, under the hand of Lewis the French king.*

And to prove him aiding and abetting to the king's enemies, we shall prove against him this particular fact; that he and his accomplices did in the year 1692, come to London, and went to Tower-wharf, to enquire what vessels were ready to go down the river; and there was one laden with piece-goods, and he put himself, and several other of his accomplices into this vessel, to go down the river; but they had contrived the matter, and brought it so to pass, that they fell on those men who had the government of the ship, and carried away this vessel to France. Now, if this be true, the

"The fact whether war or not is triable by the jury, and public notoriety is sufficient evidence of the fact." Foster's Discourse, 1. c. 2, s. 12. Peake's Law of Evidence, c. 2, s. 2. East's Pleas of the Crown, c. 2, s. 20.

Vaughan. With submission to your lordships, and the honourable bench, I beg that they may be put asunder, out of hearing of one another.

*

L. C. J. Let it be so; though you cannot insist upon it that we may grant. as your right, but only a favour. Mr. Cowper. Set up Richard Crouch. Is your name Richard Crouch? Crouch. Yes, Sir.

Mr. Cowper. Give my lord and the jury an account of what you know of the ship Coventry taking of the Clencarty, and what you know concerning the prisoner at the bar in taking of

her?

Crouch. We weighed our anchor about four o'clock.

Mr. Couper. Where were you?
Crouch. At the Nore.

Mr. Couper. In what ship?
Crouch. The Coventry. After we had been
under sail a matter of an hour, we came to an
anchor with a little wind; so, sir, this Thomas
Vaughan met with a couple of pinks, they
were small vessels, that he designed to take;
but he saw us, and so lay by all night.
Mr. Cowper. Who lay by?

Crouch. Thomas Vaughan, the prisoner at the bar.

Mr. Cowper. In what vessel was he?

Crouch. In a two-and-twenty-car barge; he lay by at the Gun-fleet: The next morning we weighed anchor at day-light; we saw him, and chased after him, and we made them, and he made us; and we made what haste we could, and coming up, we fired a gun at him, and then we fired another, and then we went ashore.

Mr. Cowper. What do you mean that he run his vessel on the sands?

Crouch. Yes; and then we fired another gun at him, and then he got off again; and then we fired another gun, and could not bring him to, and then he got off the sands again; and when we came up to him, we manned our long-boat, and pinnace, and barge, and had bim at last. When he came on board, he said, I cannot deny but I am an Irishman, and that my design was to burn the ships at the Nore.

Mr. Cowper. Did he himself confess it?

* See Peter Cook's Case, p. 311, of the present volume; and Peake's Law of Evidence as there referred to.

Crouch. Yes, he did; that is the man, I know him well enough.

L. C. J. When you took him, in what ship was you?-Crouch. In the Coventry.

L. C. J. Out of what ship was he taken?
Crouch. The two-and-twenty-oar barge.
L. C. J. What ship did he belong to?
Crouch. I reckon it was my lord Barcley's
barge.

I. C. J. Who did it belong to then?
Crouch. To the king of France.
I.. C. J. What company was there in her?
How many men had she aboard ?

Crouch. About five-and-twenty hands.
Mr. Cowper. Did you ever hear him say any
thing of a commission he had?

Crouch. I heard he had a French commismission, but I did not see it.

Mr. Cowper. Did you hear him say any thing of it ?-Crouch. No.

Mr. Cowper. But he told you his design was to burn the ships at the Nore?—Crouch. Yes. Mr. Cowper. What ships?

Crouch. The English ships; there were several ships there then.

L. C. J. Were there no Frenchmen aboard the barge?-Crouch. No, that I can tell. Mr. Lechmere. From whence did he come, from England, or France?

Crouch. From Calais in France.

L. C. J. Prithee hear me, This two-andtwenty-oar barge, did it belong to any other ship?

Crouch. No, not that I can tell.

L. C. J. Levying of war is an overt-act. Sol. Gen. The business of overt-acts is, where the compassing and imagining the king's death is a crime in question; and this must be discovered by overt-acts. But if 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 itself; 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. 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 itself, 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 anyovert act, but what is laid in the indictment? L. C. J. What overt acts are there in clipping and coining?

Mr. Phipps. That is not within the new act of parliament.

L. C.J. That is most true; the one is excepted, the other is not comprehended: but the question is upon the statute of 25 Ed. 3, to which the late act doth refer. Now proving an 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

L. C. J. Did he call that vessel the Loyal that consists in doing an overt act. Clencarty?-Crouch. Yes, my lord.

Then Edmund Courtney was called. Sol. Gen. Mr. Courtney, pray tell my lord and the jury what you know of the going away of a Custom house boat?

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 expressly laid in the indictment,' must be intended of such treasons, of which by law overt acts ought to be laid. Now the killing of Courtney. I will tell you, if you please. the chancellor, or treasurer, or judge in the Mr. Phipps. My lord, I think they ought execution of his office, are not such treasons of not to examine to that, because it is not laid in which it was necessary to lay any overt acts in the indictment. The carrying away of the the indictment, and so not within the meaning Custom house barge is not mentioned in the of this new law. But levying war, and adindictinent; and by the new act for regulat-hering to the king's enemies, which are the ing trials in cases of treason, no evidence is to be admitted or given of any overt-act, that is not expressly laid in the indictment.

L. C. J. Nothing else? Suppose a man be indicted for levying war against the king, or adhering to the king's enemies, cannot they prove any act that makes out a levying of war, or an adherence to the king's enemies?

Mr. Phipps. With submissio, not by that act, my lord, unless it be laid in the indict

treasons in this indictment, must, by the express purview of 25 Ed. 3, be proved by overt acts, which are to be alledged in the indictment.

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 expressed 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 murder, there needs no other overt act to prove it, but the murder itself.

L. C. J. But the force of the objection lies in this, viz. to say a man levied war, or adhered to the king's enemies, is no good indictment; but it is necessary to alledge in what manner he levied war, or adhered to the king's enemies; as that he appeared in such a warlike