tenements had he at the time of the treason committed? Foreman. None to our knowledge. Cl. of Ar. 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 bad 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. 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. But then, gentlemen, as to the place of the prisoner's birth; two other witnesses are produced to give you satisfaction that this captain Vaughan was not the son of that Mr. Vaughan of Galloway, whose evidence I will open to you, and then 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 15 years; but that this prisoner is not he; for that Thomas Vaughan was disfigured with the small-pox; he remembered him well; he had reason for it, for he once basted him soundly; and that he went away from Galloway when he was about 15 years of age, and was reported to be dead; L. C. J. The keeper must do his duty. and if it were so, this prisoner cannot be the Cl. of Ar. Thomas Vaughan, hold up thy person. hand. (Which he did.) Thou standest convictThe other witness is as positive as Creigh-ed of high-treason against our sovereign lord ton; for he saith, he knew this John Vaughan of Galloway, and his son Thomas; and that Thomas Vanghan, son of John Vaughan, died about 10 years since of the small-pox. So that they have found two Thomas Vaughans: one tells you of one that was 15 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 10 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 Frenchman, 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 Irishman, 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 the high-treason whereof be stands indicted; otherwise you are to acquit him. Cl. of Ar, Swear an officer to keep the jury. {Which was done.] [After a short stay, the Jury returned into Court, and gave in their verdict.] L. C. J. Capt. Vaughan, they say you once made an escape, and therefore the keeper must keep with humanity, but with all security. Vaughan. I desire 1 may be kept like a Christian. the king; What hast thou to say for thyself why judgment shall not pass against thee to die according to the law?" Vaughan. I am altogether a stranger to the law, my lord: I refer myself to my counsel. L. C. J. Well, then, you refer yourself to your counsel. You have had a fair trial, and have no reason to complain of it: If your counsel 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 to the king's enemies, but says not against the king. Now every body knows that the French king is in war, not only with England, but Holland and Spain, and the emperor: But if a man join with the French against any of them, he adheres to the king's enemies; and yet it cannot be said to be against the king; therefore they ought to have laid it, that he did adhere to the king's enemies contra Dominum Regem;' it must be aiding and comforting them against the king that makes the treason. L. C. J. It does say so. Mr. Phipps. No, my lord: it only says that Cl. of Ar. Gentlemen, answer to your captain Vaughan did adhere to the king's ene names. E. Leeds. Mr. Leeds. Here. Cryer. Vous Avez, and so of the rest. Cl. of Ar. Who shall say for you? Cl. of Ar. Thomas Vaughan, hold up thy hand. (Which he did.) Look upon the prisoner. How say you, is he guilty of the hightreason whereof he stands indicted, or not guilty?-Foreman. Guilty. Cl. of Ar. What goods or chattels, lands or VOL. XIII. mies, and does not say it was against the king; and if that be treason, is what we desire to know. L. C. J. If he adhere to the king's enemies, it must be against the king, though he assist them only against the king's allies;* for there East's P. C. c. 2, s. 21. Fost. 220. But as to this Blackstone says: "By the statute 2 Hen. 5, c. 6, any subject committing acts of hostility upon any nation in league with the king was declared to be guilty of high treason, and, though that act was repealed by the sta 2 M by the king's enemies may be more encouraged and enabled to do mischief or damage to the king. Suppose you assist the French king against the king of Spain, that is now in - alliance and league with the king of England, and the French in actual enmity; that is to adhere to the king's enemies against the king. Mr. Phipps. Would that be treason, my lord? L. C. J. Yes, certainly; though that is not a point in this case, and so not necessary to be determined now; for the act of parliament of 25 of E. 3. defines treason in adhering to the - king's enemies, and expresses the overt-act in giving them aid or comfort; it is sufficient to alledge the treason in the words of the statute, adhering to the king's enemies. An overt-act alledged, shews it to be against the king; and in pursuance of that adherence, he did so and so: He was a captain and soldier in the ship; did join with the king's enemies, &c. with a design to destroy the king's and his subjects ships: surely that is most manifestly an adherence to the king's enemies against the king.+ Mr. Phipps. The overt-act, if it were al ledged sufficiently, would not help it; for if there can be an adhering to the king's enemies, that is not treason; they ought to alledge sucu Cadhering as is treason; and if the treason itself is not well alledged, the overt act will not help it. L. C. J. There is an overt act to shew it to be against the king. It is said all along, he being in this vessel Clencarty," cum diversis -subditis." Mr. Phipps. But then that overt-act is not well alledged; for it is said only he went a-cruising; whereas they ought to have alledged that he did commit some acts of hostility, and attempted to take some of the king's ships; for cruising alone cannot be an overtact; for he might be cruising to secure the French merchant-ships from being taken, or for many other purposes, which will not be an overt-act of treason. son; but here is nothing mentioned but cruising. L. C. J. Cruising about the coasts of England with a design to destroy the king's ships. Mr. Phipps. That design ought to be made appear by some act of hostility; for in the case of Burton and Bradshaw, and others, which my lord Coke cites, the agreeing to rise and pull down inclosures, and meeting and providing arms for that purpose, is agreed not to be levying of war; and they were indicted for conspiring to levy war, upon the statute of queen Elizabeth. And in this case, here being only a conspiring, and nothing attempted, it can be no more treason than it was in that case. L. C. J. When men form themselves into a body, and march rank and file with weapons offensive and defensive, this is levying of war with open force, if the design be public. Do you think when a ship is armed with guns, &c. doth appear on the coast, watching an opportunity to burn the king's ships in the harbour; and their design be known, and one goes to them, and aids and assists them, that this is not an adhering to the king's enemies? Here are two indictments, one for levying war, and the other for adhering to the king's enemies; but the adhering to the king's enemies is principally insisted on; and there must be an actual war proved upon the person indicted in the one, yet need not be proved in the other case. Mr. Phipps. The same certainly is necessary in one as well as the other; for barely adhering to the king's enemies is not treason; but there must be an actual aiding and comforting them; and a mere intention to assist the king's enemies, is not an adherence within the statute of 25 Ed. 3. L. C. J. If there be not high-treason in the act alledged; that is, if it do not make out au adherence to the king's enemies, then your objection would hold good. Mr. Phipps. The going to cruise, my lord, does not make out an adherence to the king's enemies; for his cruising might be for other purposes as well as to take the king's ships; and your lordship will intend the best in favour life. L. C. J. I beg your pardon. Suppose the >French king, with forces, should come to Dun-of kirk with a design to invade England; if any one should send him victuals, or give him intelligence, or by any other way contribute to their assistance, it would be high-treason in adhering to the king's enemies.† Mr. Phipps. If the French king had designed an invasion upon England, and captain Vaughan had assisted in his vessel in forwarding the invasion, it would have been trea tute 20 Hen. 6, c. 11, so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws either capitally or otherwise according to the circumstances of the case." 1 Blackst. Comm. 252, 258. *East's P. C. c. 2, s. 21. + East's P. C. c. 2. s. 21. Mr. Whitaker. To burn the king's ships. L. C. J. Treby. The indictment is laid for adhering to, and comforting and aiding the king's enemies. You would take that to be capable to be construed adhering to the king's enemies in other respects; but I take it to be a reasonable construction of the indictment, to be adhering to the king's enemies in their enmity. What is the duty of every subject? It is to fight with, subdue, and weaken the king's enemies: and contrary to this, if he confederate with, and strengthen the king's enemies, he expressly contradicts this duty of his allegiance, and is guilty of this treason of adhering to them. But then you say here is no aiding unless there were something done, some act of hostility. Now here is going aboard *East's P. C. c. 2, s. 12, 59. 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. &, 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 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. 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. 3, 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 more 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, inuch 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 his 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. Cc. 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 proot with us. Dr. Oldish. It is another question, whether he 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 upon 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. 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 presumed to be ex vicineto,' and so must be instructed according to the rules of the civil law by witnesses. 6 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 commanded 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 of the "Lewis Alexander of Bourbon, earl of Tou louse, duke of Amville, 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 reasons 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 arm 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 be 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 annoy the said enemies; 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. 66 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 enemies 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 resist ance: 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 near 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 3 |