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fore three of the privy-council might be tried in a foreign county, but that statute is repealed by the statute 1 and 2 of Philip and Mary; for by the statute 33 Hen. 8, c. 4, treason committed in Wales, might be tried in what county the king would assign;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 ?*

with an intention to do such acts; and is not that comforting and aiding? Certainly it is. Is not the French king comforted and aided, when he has got so many English subjects to go a cruising upon our ships? Suppose they man his whole fleet, or a considerable part of it; is not that aiding? If they go and enter themselves into a regiment, list themselves and march, though they do not come to a battle, this is helping and encouraging; such things give the enemy heart and courage to go on with the war; or else it may be, the French king would come to good terms of peace. It is certainly aiding and comforting of 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 ruin the king's ships; these are actings of an hostile nature. And if 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 actually levying of war, if they actually provide arms, and levy mer, 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. 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.

Baron Powis. However it is well enough. But for you to say because they did not actually fight it is not levying a war; it is 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 blunderbusses, and surrounded the ship twice; they came with an armed force; that is a strong evidence of the design.

L. C. J. You would make no act to be aiding and assisting but fighting.

Mr. Phipps. Then next I am in your lordship's judgment, whether the statute of 28 of Hen. 8, by which captain Vaughan is tried, is in force, and be not repealed by the 1st and 2nd of Philip and Mary, which saith, that all trials, 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 be

L. C. J. This is treason by the common law, and the trial is by the method of the common law.

Mr. Phipps. It 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 lordships' judgment.

L. C. J. It is no mord a question than the trials of foreign treason, and then the determi. nation of the trials upon the 35th determines the question upon this.

Dr. Oldish. 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 but one witness.

L. C. J. That is not the law of England.

Dr. Oldish. 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 com mon 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 ver dict.

L. C. J. 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 bis confession at any time, so as to make it have no effect.

Dr. Oldish. 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 found difficult by the course of the civil

East's P. C. c. 2, s. 40.

law; and therefore was that statute made, as plainly appears by the preamble thereof.

Dr. Oldish. There is a new statute that revives that statute again, and that requires two witnesses; whereby it is reduced to the rules of the civil law again.

L. C. J. 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 acts laid in the indictments, for one species of treason, compassing and ima gining 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 bed-chamber 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 an overt-act of the same treason. If one witness prove one, and another witness prove the other, that is sufficient proof with us.

Dr. Oldish. It is another question, whether be be a subject?

L. C. J. 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 upou the trial there were above two witnesses to prove it, that was Crittenden the marshal of Dover, Creagh, and Rivet. I must tell you as 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 itself.

6

Dr. Oldish. Yes, in all places, as to proof; for it is the law of God and nations, ex ore duorum, vel trium,' &c. and one witness is no witness.

Sir Ch. Hedges. Two witnesses may be necessary to convict a man of any capital crime, but then it doth not follow that there must be two witnesses to prove every particular fact and circumstance. In this point, touching the place of nativity of Thomas Vaughan, was there not sufficient in his own confession, together with the other proofs on the king's behalf, to throw the burden of proof upon the prisoner? You yourselves seem to have been of that opinion, you undertook to prove it, and it is you that have failed in that particular.

L. C. J. Our trials by juries are of such consideration in our law, that we allow their determination to be best, and most advantageous to the subject; and therefore less evidence is required than by the civil law. So said Fortescue in his commendation of the laws of England.

Dr. Oldish. Because the jury are witnesses in reality, according to the laws of England, being presumed to be ex vicineto;' but when it is on the high and open seas, they are not then presursed to be ex vicineto,' and so must be instructed according to the rules of the civil law by witnesses.

Baron Powis. This is not a trial by the

*East's Pl. Cr. c, 2, s, 65.

civil law; for that statute was made to avoid the niceties of your law.

Just. Eyre. He is tried with like evidence as in other cases of high treason.

Dr. Oldish. No, the late act requires two witnesses.

Cl. of Ar. Make proclamation of silence. Cryer. All manner of persons are com manded to keep silence, while judgment is giving, upon pain of imprisonment.

And then Judgment was given, according as the law directs in cases of High Treason.

The COMMISSION of Captain THOMAS VAUGHAN, which he had by Order of the French King.

of the

"Lewis Alexander of Bourbon, earl of Tou louse, duke of Anville, commander of the king's orders, governor and lieutenant-general for his majesty in the Province of Britany, peer and admiral of France: to all those who shall see these present letters, greeting. The king having declared war against his Catholic majesty, the favourers of the crowns of England and Scotland, and the estates of the United Provinces, for the rea sons contained in the declarations published by his majesty throughout the extent of his kingdom, countries, lands, and lordships under bis obedience: and his majesty having commanded us to take care that the said declaration be observed, in what doth depend upon the power and authority which his majesty hath been pleased to commit to our said charge of admiral; we have, according to the express orders of his said majesty, given leave, power and permission to Thomas Vaughan, living at Bulloigne, to arun and set forth in warlike manner a bark, called the Loyal Clencarty, of the burthen of ten tons, or thereabouts, which is at present in the port of Bulloigne, with such number of men, cannons, bullets, pow der, shot, and other ammunitions of war, and provisions which are necessary to set her out to sea, in a condition to sail and cruize upon the pirates, and others without commission, as also upon the subjects of his Catholic majesty, the estates of the United Provinces, the favourers of the

of the crowns

of England and Scotland, and other enemies of this estate, in what places soever he can meet them, whether it be upon the coasts of their country, in their ports, or rivers; also upon their shores, or places where the said captain Thomas Vaughan shall think fit to land to aunoy the said euemies; and there to make use of all the means and arts permitted and used by the laws of war, to take them and bring them prisoners, with their ships, arms, and other things in their possession.

"Provided the said Vaughan shall keep, and cause those of his crew to keep the maritime orders, and that shall he carry, during his voyage, the flag and ensign of the King's Arms, and of ours, and cause the present commission to be registered in the registry of the

but on the contrary, to give him all succour and assistance that shall be necessary. These presents to be of no force after one year, from the day of the date hereof.

nearest admiralty where he shall be equipped, and leave there a roll signed and certified by him, containing the names and sirnames, the births and residence of his crew ́; and make his return to the said place, or some other port of France, and make his report before the officers of the Admiralty, and no others, of what shall have happened during his voyage, and give us advice thereof, and send his said report to the secretary-general of the marine, with the papers justifying the same, that we may give such orders thereupon as may be necessary

"And we pray and require all kings, princes, potentates, sovereigns, estates, republics, friends and allies of this crown, and all others to whom it shall appertain, to give to the said Vaughan all favour, aid, assistance and succour in their ports, with his said vessel, company and prizes, which he shall take during his voyage, without doing, or suffering to be done to him any trouble or hindrance; offering to do the like when we shall be by them thereunto required.

"And we do command and require all marine officers, and others to whom it shall appertain, to let him safely and freely pass with his said vessel, arms and company, and the prizes which he shall take, without doing, or suffering to be done to him any trouble or hindrance;

"In witness whereof we have signed these presents, and caused them to be sealed with the seal of our arms, and counter-signed by the secretary-general of the marine, at Versailles, the 10th day of the month of July, 1696. L. A. DE BOURBON."

"By my lord de Vallencour." (L. S.) "The present Commission was registered in the admiralty of Bulloigne, after having been seen by us James Abbot de la Cocherine, the king's counsellor, deputed to the intendency of Bulloigne, exercising the charge of lieutenantgeneral of the admiralty, in the presence of the king's proctor, at the request of the said captain Vaughan, being present, whom we have permitted to sail and cruise upon the euemies of the estate. Done at Bulloigne the 14th of July, 1696.

MAGINON.

"Versionem hanc Anglicanam in omnibus, cum suo originali Gallio convenire testor,

"WILHELMUS ROCKE, Not. Pub.”

He was afterwards executed according to his Sentence.

394. Proceedings in Parliament against Sir JOHN FENWICK, bart. upon a Bill of Attainder for High Treason: 8 WILLIAM III. A. D. 1696.*

PROCEEDINGS IN THE HOUSE OF COMMONS.

November 6th, 1696.

ADMIRAL RUSSELL acquainted the House of Commons, that his majesty had given leave to lay before the House, several papers in the nature of informations of sir John

"There was indeed reason to apprehend tumults; for now, after the queen's death, the Jacobites began to think, that the government had lost the half of its strength, and that things could not be kept quiet at home, when the king should be beyond sea. Some pretended, they were for putting the princess in her sister's place; but that was only a pretence, to which she gave no sort of encouragement: king James lay at bottom. They fancied, an invasion in the king's absence would be an easy attempt, which would meet with little resistance: so they sent some over to France, in particular one Charnock, a fellow of Magdalen college, who in king James's time had turned Papist, and was a hot and active agent among them: they undertook to bring a body of 2,000 horse, to meet such an army as should be sent over; but Charnock came back with a cold account, that nothing could be done at that time; upon which it was thought necessary

Fenwick, in which he and several other persons of quality were named; and desired that they might be brought up to the table and read; and that he might have an opportunity to justify himself, or if he did not that he might fall under the censure of the House. And Mr. Secretary Trumbull being present, did say,

to send over a man of quality, who should press the matter with some more authority: so the earl of Ailesbury was prevailed on to go: he was admitted to a secret conversation with the French king: and this gave rise to a design, which was very ncar being executed the following winter.

"But if sir John Fenwick did not slander king James, they at this time proposed a shorter and more infallible way, by assassinating the king; for he said, that some came over from France about this time, who assured their party, and himself in particular, that a commission was coming over, signed by king James, which they affirmed they had seen, warranting them to attack the king's person. This, it is true, was not yet arrived; but some affirmed, they had seen it, and that it was trusted to one, who was on his way hither; therefore, since the king was so near going over to Holland, that he would probably be

for the present, the House will send you their
pleasure.

539]
that he had his majesty's leave to lay those
papers before the House; and if the House
pleased, he would bring them up to the table.
And accordingly (the House shewing a gre-in
neral inclination for it) they were brought up
to the table and read (being the account he gave
of the last plot under his own hand, and his
examination taken by Mr. Vernon, afterwards
upon his trial produced); and after the same
was read, the House ordered, that sir John
Fenwick should be brought immediately before
them; and that no person should in the mean
time speak with him, or give or receive any
paper from him. And the House further or-
dered that the, lord Cutts, sir Henry Hobart,
and Mr. Norris, three of their members, should
see their order executed, and in the mean time
adjourned to the afternoon.

About five o'clock in the afternoon, sir John
Fenwick was brought with a strong guard
(which the lord Cutts had taken care for) to the
House; and being brought to the bar, Mr.
Speaker spake to him thus:

Mr. Speaker. Sir John Fenwick, the House understands that you have shewed some inclinations to make a discovery of the designs and practices of the enemies of the government; you have now an opportunity to do it; and the House require it from you, that you make a full and ample discovery of all you know of that matter.

Sir John Fenwick. Mr. Speaker, I suppose the House is not ignorant of my circumstances. I am indicted of high-treason, and have been arraigned: what I have done to serve the king and nation his majesty knows; it hath been communicated to him by his privy council. do not know but what I say may hurt myself; and therefore I desire that I may have some security for myself, and I am willing to tell the full of all I know.

Mr. Speaker. Sir, if you please to withdraw

gone before the commission could be in England; it was debated among the Jacobites, whether they ought not to take the first opportunity to execute this commission, even though they had it not in their hands: It was resolved to do it; and a day was set for it; but as Fenwick said, he broke the design; and sent them word, that he would discover it, if they would not promise to give over the thoughts of it: and upon this reason, he believed, he was not let into the secret the following winter. This his lady told me from him, as an article of merit to obtain his pardon: but he had trusted their word very easily, it seems, since he gave the king no warning to be on his guard; and the two witnesses, whom he said he could produce to vouch this, were then under prosecution, and outlawed: so that the proof was not at hand, and the warning had not been given, as it ought to have been. But of all this the government knew nothing, and suspected nothing at this time." Burnet.

[Sir John Fenwick withdrew, and was called
again.]

Mr. Speaker (Mr. Paul Foley). Sir John
Fenwick, since you withdrew, the House have
considered of what you said at the bar. They
do not think what you said is an answer to what
they require; they do expect a full and candid
confession from you of what you know; and
they think that the best way for you to obtain
the favour of the House is to deal ingenuously

with them.

Sir John Fenwick. Sir, I am in the hands of the law, and I would not do any thing that his majesty might be angry with; for I do not know it is with his majesty's consent: I have acquainted him fully with all I know of the matter; this is all the account I can give you am under; I know not but I may come to my at this time. It is a dangerous point that I trial in a few days: and what I may say, may rise up against me in a court of judicature: I humbly propose it to the house, if they do not think it a hard case for me to make any confession here, when his majesty hath all I know, Ishall be very ready to do what this honourable House pleases to command me; but I desire this House will consider my circumstances. I would not offend the king, nor offend this House.

Thereupon, Mr. Speaker again spoke to him to withdraw and being withdrawn, the House debated, whether they should acquaint him with their having those Papers of Information. But they did not think fit to do it for this reason, because they thought these Papers were a contrivance, and made by others for him; and that the best way to get the truth out of him, would be for him to tell his own story. Besides, if the House should let him know they had those Papers, he would only refer to those Papers, as he had lately done, when he was examined by the king and council.

It was also debated, whether there should be any threatening words used towards him; but they thought that not proper; for his confession ought to be free and natural. It was also debated, whether they should take notice of his majesty's consent; but that was not thought fit, being_thought derogatory to the privileges of the House. So the House ordered him to be called in again; and Mr. Speaker delivered the sense of the House to him in these words:

[Sir John Fenwick at the Bar.]

Mr. Speaker. Sir John Fenwick, the House has considered of what you have said, to excuse your making a discovery of your knowledge of the designs and practices of the enemies of the government; and they think what you stand upon is only an excuse; they think you have no reason to apprehend the king should be angry with you for making any discovery to this House, this being the proper place to enquire of all things that do relate to the king

and government, especially his majesty's safety; and you ought to discover to them what you know. As to what you stand upon, that you should not be prejudiced by what you discover here, I am commanded to tell you, they do take notice by what you have said here, that you have already, notwithstanding what you say, discovered it to the king and council: and they command me to tell you, that you have no reason at all to apprehend, that you shall suffer any thing if you make a full and free discovery here; no man that ever did so, and dealt candidly with this House, ever did: it is in your power to deserve the favour of the House; it is required by the House, that you make a discovery; and this is the last time that you are like to be asked to do it.

Sir J. Fenwick. Mr. Speaker, I know not what answer to make to this House; I would not willingly offend it; what I have informed the king of is a great deal; and a man would have some little time to recollect himself; and I have been kept a very close prisoner, and had no conveniency of pen, ink, and paper; it is hard to remember just of a sudden; and I would willingly be secure his majesty will not be angry with me. I was in hopes that his majesty would have informed the House himself; he hath all that I know; my circumstances are hard, I am in danger every day to be tried, and I desire to be secured, that what I say shall not rise up in judgment against me; it is hard to make me accuse myself under these circumstances, and very hard to put me on it now.

Mr. Speaker. As to what you say relating to the fear of his majesty's displeasure, and the other excuse, you have had your answer already. As to what you say relating to time, if you will now declare what you know and remember, the House will take it into consideration, whether they will give you farther time to make up the rest.

Sir J. Fenwick. Sir, his majesty hath all exactly; it is impossible for me to inform you of it without accusing myself: I do not really know what to ask but a little time, if they would please to give it me.

Mr. Speaker. Sir, you know already what the House requires of you.

Sir J. Fenwick. 1 do: but it is no excuse that I have made: what I have told is truth, to the best of my knowledge: I am not very good at speaking; and if I might have a little time, I shall do what they please to command

ine.

Mr. Speaker. If that be all you have to say, if you please to withdraw, you shall know the pleasure of the House.

(Sir John Fenwick withdraws. Is called in again.)

Mr. Speaker. Sir John Fenwick, this House have considered what you stood upon when you were here last, that your memory was bad, and that you desired time; but the House think it a matter of great moment to the king and the whole nation, that those that are their enemies

should be discovered as soon as possible; and this being a matter within your knowledge, the House do not think fit to give you time; but if they find, by your discovery, that you deal candidly and ingenuously with them, and have told them as much as you know upon your memory, they will consider of your request of giving you time for the rest.

Sir J. Fenwick. When first I spake to the privy-counsellor, I proposed it to him, whether I might have a pardon without being an evidence against any man; and in that case I would serve the king so as to tell him all that I knew. It was upon honour that I did it to him, and he took the words in writing from me, and sent them to the king in Flanders. The king's answer was, That he made no objection as to my being an evidence, nor his giving me a pardon; but that I could expect no pardon, till he knew what I could say: upon that I was encouraged to do what I did for his majesty's service; and have found in all my business since, whatever I do or say, the answer is, it is not satisfactory; and I am where I was. When this was done, there was a message sent to me from the lords justices, That this was not satisfactory, and I must tell all I know: now, when a man hath told all he knows, and this must still be the answer, it is very hard. The king's answer was, That I should more fully make good what I had said. Sir, I did afterwards explain what I had informed that honourable person, and still it was not satisfactory. I hope I shall not find this from this honourable House: I am upon my life, and I hope this House will consider of it: I know this House is good security if I had it; but till I have it, I am under these circumstances, and I may at last be told all is not satisfactory: I desire the House will please to consider of it.

Mr. Speaker. Sir, you know the pleasure of the House; you know what they require of you.

Sir J. Fenwick. I am very unwilling to offend the House; but these are very hard circumstances, to be told, when I have done all I can, it is not satisfactory.

Mr. Speaker. Sir, you know what the House does expect; you must either give them satisfaction in it, or withdraw. (Accordingly he withdrew.) And a motion was made for leave to bring in a Bill to attaint sir John Fenwick of high-treason; and after a debate thereupon, the House divided. Yeas, 179. Noes, 61. So it passed in the affirmative.

November 9. The Bill was presented to the House; and after a long debate, the question was put for the second reading of it; whereupon the House divided. Yeas, 196. Noes, 104. So it passed in the affirmative, and Friday morning was appointed for it. The same day the House ordered, That sir John Fenwick should have a copy of the Order for reading the Bill the second time, and a copy of the Bill; and that he should be allowed pen, ink,

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