The tryal and condemnation of Capt. Thomas Vaughan for high treason in adhering to the French-king and for endeavouring the destruction of His Majesties ships in the Nore who upon full evidence was found guilty at the Sessions-House in the Old-Baily, on the 6th of Novemb. 1696 : with all the learned arguments of the King's and prisoners council, both of

Die Veneris, sexto Novembris, Annoque Regni Regis Willielmi Octavo, Anno∣que Domini, 1696.

Cl. of Arr.

CRYER, make Proclamation.

Cryer.

O yes, O yes, O yes. All manner of Persons that have any thing more to do at this Sessions of Oyer and Terminer, Adjourn'd over to this Day, draw near and give your Attendance. And you Sheriffs of the City of London, return the Pre∣cepts to you directed, upon Pain and Peril which will fall thereupon.

Then the Under Sheriff return'd the Precepts.

Cl. of Arr.

Make Proclamation.

Cryer.

O yes. You good Men of the City of London, Summon'd to appear here this Day, to try between our Sovereign Lord the King, and the Prisoner at the Bar, Answer to your Names, as you shall be called, every one at the first Call, and save your Issues.

The whole Pannel was call'd over, and the Appearances of those that answered, Recorded, and the Defaulters were again call'd over.

Mr. Phipps.

Will your Lordship please to order, that two Men may be brought from the Marshalsea, in behalf of the Pri∣soner?

L. C. J. Holt.

You shall have an Order.

Then the Court went on the Tryal of the Six Pyrates, and after the Tryal was over, Tho. Vaughan was call'd to the Barr.

T. Vaughan.

My Lord, my Irons are very uneasie to me, I de∣sire they may be taken off.

L. C. J. Holt.

Ay, ay, take them off.

Mr. Phipps.

If your Lordship please, we have some doubts as to the Indictment.

L. C. J. Holt.

If you have any Exceptions, you ought to have made them before the Prisoner pleaded to it.

Mr. Phipps.

I thought you had allow'd it, my Lord, in former Cases.

L. C. J. Holt.

No, we did not allow it as of Right due to the Prisoner; the Exceptions should have been made before the Plea. You were indulg'd in being heard at first in the Cases of Rook∣wood, Cranburne, and Lowick, but it was not the intent of the Act, to alter the Method of the Proceeding; and so upon considerati∣on hath it been determin'd. The Prisoner hath time given by the Act to make any exception to the Indictment before he pleaded, but you may move what you will afterwards in Arrest of Judg∣ment, if it be material.

Cl. of Arr.

Thomas Vaughan, Those Men that you shall hear cal∣led, and Personally appear, are to pass between our Sovereign

Lord the King and you, upon Tryal of your Life and Death; if therefore you will Challenge them, or any of them, your time is to speak unto them as they come to the Book to be Sworn, before they be Sworn.

Mr. Phipps.

There was one Man here that desir'd to be excus'd, because he was on the Grand Jury; therefore it seems there are some return'd upon this Jury that were on the Grand Jury, which I think ought not to be.

L. C. J Holt.

Challenge them then.

Mr. Phipps.

We do not know the Men.

Then the Pannel was call'd over, and a great many Challenges made, and the Twelve Men that were Sworn, were these.

• Fd. Leeds.
• Caleb Hook.
• Nath. Green.
• Joceline Roberts.
• Hen. Sherbrook.
• Tho. Parker.
• Jo. Sherbrook.
• Peter Gray.
• Tho. Emms.
• Roger Poston.
• Peter Parker.
• —Woolley.

Cl. of Arr.

Cryer, make Proclamation.

Cryer.

O Yes, If any one can inform my Lords, the King's Justices, the King's Serjeant, the King's Attorney General, the King's Advocate, in his High Court of Admiralty, before this Inquest be taken of the High Treason, whereof Thomas Vaughan, the Prisoner at the Barr, stands Indicted, let them come forth, and they shall be heard, for now the Prisoner at the Bar stands upon his Deliverance; and all others that are bound by Recognizance to give Evidence against the Prisoner at the Bar, let them come forth and give their Evidence, or else they forfeit their Recognizance.

Cl. of Arr.

Tho. Vaughan, hold up thy Hand. (Which he did.) You that are Sworn, look upon the Prisoner, and hearken to his Cause. He stands Indicted by the Name of Thomas Vaughan.

Whereas, That before and until the 8th. day of July in the 7th. Year of the Reign of our Sovereign Lord King William the Third, there was open War between our said Lord the King, and Lewis the French King. And that the said War continued on the said 8th Day of July, in the 7th. Year aforesaid, and doth still continue. And that for all the time afore∣said, the said Lewisthe French King and his Subjects, were, and at present are Enemies of our said Lord the King that now is: And that at the time of the said War, and before the said 8th day of July in the 7th Year aforesaid, the said Lewis the French King, set out, amongst others, a certain small Ship of Warr called the Loyal Clencarty, of which Thomas Vaughan, a Subject of our said Lord the King that now is, was Commander, with several French Subjects, Enemies of our said Lord the King, to the Number of 15 Persons, in a Warlike manner to take and destroy the Ships, Goods, and Moneys of our said Lord the King, and his Subjects, and against our said Lord the King to wage War upon

the High-Seas, within the Jurisdiction of the Admiralty of England. And that at the time of the said War between our said Lord the King and the aforesaid Lewis the French King, Tho. Vaughan, late of Gallo∣way, in the Kingdom of Ireland, Marriner, being a Subject of our said now Lord the King, as a false Rebel against the said King, his Supreme Lord, and not having the fear of God before his Eyes, nor considering the Duty of his Allegiance, but being moved and seduced by the instigation of the Devil, and altogether withdrawing the cordial Love, and true and due Obedience which every true and faithful Subject of our said Lord the King, ought, by Law, to have towards the said King; and the said War, as much as in him lay, against our said Lord the King, designing and intend∣ing to prosecute and assist. The said Tho. Vaughan on the said 8th day of July in the said 7th Year of the King, being a Souldier aboard the said Ship of Warr called the Loyal Clencarty, in the Service of the said Lewis the French King, And being then on the High-Seas, within the Jurisdiction of the Admiralty of England, about Fourteen Leagues from Deal, did then and there by force and Arms, falsly, maliciously, wickedly, and Traiterously, aid, help, and assist the Enemies of our said Lord the King, in the Ship of War called the Loyal Clencarty. And after∣wards the said Thomas Vaughan, in the Execution and Performance of his said aiding helping and assisting, Maliciously Falsely and Traiterously sailed a Cruising to several Maratime Places within the Jurisdiction afore∣said, by Force and Arms to take the Ships, Goods, and Money of our said Lord the King, and his Subjects, against the Duty of his Allegiance, the Peace of our said Lord the King, and also against a Statute in that Case made and Provided.

And the said Jurors for our said Lord the King, upon their said Oaths, farther represent, That the aforesaid Thomas Vaughan, as a false Traytor against our said Lord the King, further desinging practi∣sing, and with his whole strength, intending the common Peace and Tran∣quility of this Kingdom of England to disturb. And War and Rebel∣lion 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 Im∣perial Crown of his Kingdom of England, and Dominions upon the High-Seas, to depose and deprive, and miserable slaughter of the Sub∣jects of the said Lord the King, of this Kingdom of England, upon the High-Seas, and within the Jurisdiction aforesaid, to cause and pro∣cure, on the said 8th day of July, in the said 7th Year of the King, up∣on the High-Seas, about Fourteen Leagues from Deal, and within the Dominion of the Crown of England, and within the Jurisdiction of the Admiralty of England aforesaid, falsly, maliciously, devilishly, and treacherously by force and Arms, with divers others false Rebels and Traytors, (to the Jurors unknown) War against our said now Lord the King, prepared, promoted, levyed, and waged. And that the said Thomas Vaughan in performance of his said War and Re∣bellion, then and there by Force and Arms, maliciously, wickedly, and openly assembled and joined himself with several other false Tray∣tors and Rebels (to the Jurors unknown) to the Number of Fif∣teen Persons, being Armed and Provided in a Warlike manner,

with Guns and other Arms, as well offensive as defensive. And the said Thomas Vaughan, then and there being aboard the said Ship of War, called the Loyal Clencarty, assembled with the other false Rebels and Traytors as aforesaid, maliciously, wickedly and Trayte∣rously sailed a Cruising to several Maritime places, with the afore∣said Ship of Warr, called the Loyal Clencarty, with an intent to take. spoil, and carry away the Ships, Goods, and Money, of our said Lord the King, and his Subjects, by Force and Arms, upon the High and open Seas, within the jurisdiction aforesaid, against the Duty of his Allegiance, the Peace of our said Lord the King, his Crown and Dig∣nities; and likewise against the Form of a Statute in this Case made and provided.

• Thomas Noden,
• Samuel Oldham, Jurors.

Upon this Indictment he hath been Arraign'd, and upon his Ar∣raignment he hath pleaded Not Guilty, and for his Tryal he hath put himself upon God and his Country, which Country you are. Your Charge is to enquire whether he be guilty of the High Treason whereof he stands Indicted, or not Guilty. If you find him Guil∣ty, you are to enquire what Goods or Chattels, Lands or Tene∣ments he had at the time of the High Treason committed, or at any time since. If you find him not Guilty, you are to enquire whether he fled for it. If you find that he fled for it, you are to enquire of his Goods and Chattels as if you had found him Guilty. If you find him not Guilty, nor that he did fly for it, you are to say so, and no more, and hear your Evidence.

Mr. Whitaker.

May it please you, my Lord, and you Gentle∣men of the Jury, The Prisoner at the Barr, 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 War-like Preparations, that the French King did make, he did set forth a Ship called the Loyal Clen∣carty; That the Prisoner at the Bar, as a false Traytor, did list him∣self aboard this Ship; And on the High-Seas, about Eleven Leagues from Deal, did Trayterously aid the Kings Enemies, to take the King's Ships. This is said to be against the Duty of his Allegiance, and the Peace of our Soveraign Lord the King, his Crown and Dignity. He stands further Indicted, for that he, the said Thomas Vaughan, with several other false Traytors, did levy War, and Arm themselves with Arms, Offensive and Defensive, and was Cruising on the High-Seas, off of Deal, with an intent to take the King's Ships, and to kill and destroy the King's Subjects, against the Du∣ty of his Allegiance, and the Peace of our Soveraign Lord the King, his Crown and Dignity. To this Indictment he has plead∣ed not Guilty. We shall call our Witnesses, and prove the Fact, and doubt not but you will do your Duty.

Dr. Littleton.

Gentlemen, of the Jury, you have heard the In∣dictment opened, and also what sort of Crime the Prisoner at the Bar stands charged with, viz. That he being a Subject of the Crown of England, has, together with his Accomplices, armed himself in a Military way, to Murther and Destroy his fellow-Subjects, and as much as in him lay, to Ruin his Native Coun∣try, by ruining the Trade and Traffick, which is the great sup∣port and Riches of the Nation. And that his Crime might be Consummate, He, with his Accomplices, has done what in him lay, to Dethrone, and dispossess his Sacred Majesty, as well know∣ing 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 Enemy and Traytor to his own Country; and not 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 exprest, what Ruin and Desolation it would have caused to this Nation, had this Man and his Accomplices brought their wicked Inten∣tions 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 Prisoner and his Accomplices would have destroy'd; I am sure you will take care to do the Nation Justice, and that he be brought to condign pu∣nishment. 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 his pretended French Extraction, but the day before he was to be Try'd, he thought fit to break Prison, withdraw from Justice, and run his Country: Which tho' not a Confession and full Proof, yet is a great Evidence of his Guilt.

Mr. Sol. Gen.

May it please your Lordship, and you Gentlemen of the Jury, the Prisoner at the Bar, Thomas Vaughan, stands In∣dicted 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, call'd the Gra∣nado of St. Maloes, and that with that Ship, he took and carried a∣way 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, call'd the Loyal Clancarty, with which he was Cruising off Deal, where we had several Ships lying at the same time: And there he being on Board the said Ship Clancarty, was taken Prisoner, with a Commission, by which he was Constituted Captain of the Loyal Clancarty, 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 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 he had a thou∣sand 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.

CI. of Ar. T. Eglington, Rich. Crouch, Sam. Oldham, John Bub, Noden.

(Who appeared, and were Sworn.)

T. Vaughan.

With submission to your Lordships, and the Honour∣able Bench, I beg that they may be put asunder, out of hearing of one another.

L. C. J. Holt.

Let it be so, though you cannot insist upon it as your Right, but only a Favour that we may grant.

Mr. Cowper.

Set up Richard Crouch. Is your Name Richard Crouch?

R. Crouch.

Yes, Sir.

Mr. Cowper.

Give my Lord and the Jury an account of what you know of the Ship Coventry taking of the Clancarty, and what you know concerning the Prisoner at the Bar in the taking of her.

R. Crouch.

We weigh'd our Anchor about four a Clock.

Mr. Cowper.

Where were you?

R. Crouch.

At the Nore.

Mr.Cowper.

In what Ship?

R. Crouch.

The Coventry. After we had been under Sail a mat∣ter 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 design'd to take; but he saw us and so lay by all Night.

Mr. Cowper.

Who lay by?

R. Crouch.

Thomas Vaughan, the Prisoner at the Bar.

Mr. Cowper.

In what Vessel was he?

R. Crouch.

In a two-and-twenty-Oar-Barge, he lay by at the Gunfleet; the next Morning we weigh'd Anchor, at day-light; we saw him, and chac'd after him; and we made them, and he made us, and we made what haste we could, and coming up we fir'd a Gun at him, and then we fir'd another, and then he went ashore.

Mr. Cowper.

What, do you mean that he run his Vessel on the Sands?

R. 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 Mann'd our Long-Boat, and Pinnace and Barge, and had him at last. When he came on Board, he said I

cannot deny but I am an Irish-Man, and that my Design was to burn the Ships at the Nore.

Mr. Cowper.

Did he himself confess it?

R. Crouch.

Yes he did, that is the Man, I know him well enough.

L. C. J. Holt.

You took him, in what Ship was you?

R. Crouch.

In the Coventry.

L. C. J. Holt.

Out of what Ship was he taken?

R. Crouch.

The two-and-twenty-Oar-Barge.

L. C. J. Holt.

What Ship did it belong to?

R. Crouch.

I reckon it was my Lord Barclay's Barge.

L. C. J. Holt.

Who did it belong to then?

R. Crouch.

To the King of France.

L. C. J. Holt.

What Company was there in her, how many Men had she aboard?

R. Crouch.

About five and twenty hands.

Mr. Cowper.

Did you ever hear him say any thing of a Commis∣sion he had?

R. Crouch.

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

Mr. Cowper.

Did you hear him say any thing of it?

R. Crouch.

No.

Mr. Cowper.

But he told you his Design was to burn the Ships at the Nore?

R. Crouch.

Yes.

Mr. Cowper.

What Ships?

R. Crouch.

The English Ships; there were several Ships there then.

L. C. J. Holt.

Were there no Frenchmen aboard the Barge?

R. Crouch.

No, that I can tell.

Mr. Lechmere.

From whence did he come, from England, or France?

R. Crouch.

From Calice in France.

L. C. J. Holt.

Prithee hear me, this two-and-twenty-Oar-Barge, did it belong to any other Ship?

R. Crouch.

No, not that I can tell.

L. C. J. Holt.

Did he call that Vessel the Loyal Clancarty?

R. Crouch.

Yes, my Lord.

Then Edmund Courtney was call'd.

Mr. Sol. Gen. Mr. Courtney,

pray tell my Lord and the Jury what you know of the going away of a Custom-House Boat?

Ed. Courtney.

I will tell you, if you please.

Mr. Phipps.

My Lord, I think they ought not to examine to that, because it is not laid in the Indictment. The carrying away of the Custom-House Barge is not mentioned in the Indictment, and by the New Act for Regulating Tryals in Cases of Treason, no Evidence is to be admitted or given of any Overt-Act, that is not expresly laid in the Indictment.

L. C. J. Holt.

Nothing else? Suppose a Man be Indicted for Levying War against the King, or Adhering to the King's Ene∣mies, can't they prove any Act that makes out a Levying of War, or an Adherence to the King's Enemy?

Mr. Phipps.

With submission, not by that Act, my Lord, unless it be laid in the Indictment.

L. C. J. Holt.

Levying of War is the Treason; may they not prove that Levying of War, without being confin'd to any special or particular Act?

Mr. Phipps.

With submission, by the 25 of Edw. the 3d. Levy∣ing of War, as well as Imagining the Death of the King, must have the Overt Acts, that are to prove it, exprest in the Indictment.

L. C. J. Holt.

Levying of VVar is an Overt-Act.

Mr. Sol. Gen.

The business of Overt-Acts is, where the Compassing and Imagining the King's Death is the Crime and Question, and this must be discover'd by Overt-Acts. But if the Treason be falsifying of the King's Money, this is Treason, but there can be no Overt-Act of that, for that is an Overt-Act it self; but there must be an Overt-Act to prove the Compassing and Imagining the Death of the King, and in no other sort of Treason.

L. C. J. Holt.

Levying of War that is an Overt-Act, so is Adhering to the King's Enemies. Now Compassing and Imagining the Death of the King is not an Overt-Act in it self, but is a se∣cret imagination in the Mind, and a purpose in the Heart; but there must be external Acts to discover that imagination and purpose.

Mr. Phipps.

What is the meaning of the New Act then, that there shall be no Evidence of any Overt-Act, but what is laid in the Indictment?

L. C. J. Holt.

What Overt-Acts are there in Clipping and Coyning?

Mr. Phipps.

That is not within the New Act of Parliament.

L. C. J. Holt.

That is most true, the one is excepted, the other is not comprehended; but the Question is upon the Statute of 25. Edw. 3d. to which the late Act doth referr. Now proving the adherence to the King's Enemy, is proving an Overt-Act. Suppose it be the killing of the Chancellor, or Treasurer, or Judge in the Execution of his Office, what Overt-Acts will you have then? Adhering to the King's Enemies, is a Treason that consists in doing an Overt-Act.

Mr. Phipps.

Yes, my Lord, I take it that it is for the New Act, by saying that no Evidence shall be admitted of any Overt-Act, that is not expresly laid in the Indictment, must be intended of such Treasons, of which by Law Overt-Acts ought to be laid. Now the killing the Chancellor, or Treasurer, or Judge in the Execution of his Office, are not such Treasons of which it was necessary to lay any Overt-Acts in the Indictment, and so not within the meaning of this New Law. But Levying War, and Adhering to the King's Enemies, which are the Treasons in this Indictment must by the express pur∣view of the 25th of Edw. 3. be proved by Overt-Acts, which are to be alledged in the Indictment.

Mr. Sol. Gen.

The New Act does not alter the Law in this par∣ticular, what was Law before, is Law now, it leaves the Overt-Acts as they were before; and it says not that an Overt-Act need to be exprest, where it was not needful before. Now if a Man be In∣dicted for Compassing the Death of a private Person, there ought to be some Overt-Act to prove his Design; but if there be an Indict∣ment for Murther, there needs no other Overt-Act to prove it, but the Murther it self.

L. C. J. Holt.

But the force of the Objection lies in this, viz. To say a Man Levyed War, or Adhered to the King's Enemies, is no good Indictment; but it is necessary to alledge in what manner he Levyed VVar, or Adhered to the King's Enemies; as that he appear'd in such a war-like manner, or did adhere to and assist the King's Enemies, by joyning Forces with them, or other∣wise assisting them, or Confederating with them, that must be spe∣cified. But if you Indict a Man generally for adhering to the King's Enemies, and not say how and in what manner he did ad∣here to them, that is not a good Indictment; therefore if you par∣ticularize what Enemies, and how and in what manner he adher'd to them, no Evidence can be given of any other kind of adherence, but that which is so specified in the Indictment.

Mr. Sol. Gen.

Then we must put all our Evidence into the Indictment.

Mr. Phipps.

So you must, as to the Overt-Acts.

Mr. Sol. Gen.

That will be the same thing as to put in all our Evidence, if we must give Evidence of no Overt-Act but what is exprest in the Indictment. But I do not take it, that the Act requires all Overt-Acts to be put in the Indictment.

Mr. Phipps.

The Act says so. Suppose you had left out the Overt-Act, would the Indictment have been good?

Mr. Sol. Gen.

We did not intend to put in all the Over-Acts, but only what related to that part of the Treason.

Mr. Phipps.

The Treason must be proved by Overt-Acts, and the Overt-Acts that prove the Treason, must be mention'd in the In∣dictment.

Mr. Sol. Gen.

What the Overt-Acts of the Treasons before-men∣tioned, as Counterfeiting the King's Money, and the like, are all to be mentioned?

L. C. J. Holt.

Consider, if you can make that a good Indictment, to say, that the Prisoner adhered to the King's Enemies, without mentioning any Overt-Acts to manifest such an adherence, then your Answer to Mr. Phipps is full; but if it be not a good Indictment, without alledging particular Acts of adherence, then it necessarily follows, that if Particulars are alledged, and you do not prove them as is alledged, you have failed in the Indictment, and so his Ob∣jection will lie hard upon you.

Mr. Sol. Gen.

My Lord, we framed our Indictment according to the Letter of the Statute.

L. C. J. Holt.

In compassing the death of the King, you must shew how that is manifested by the Overt-Acts.

Mr. Sol. Gen.

But compassing and imagining must be discovered by some Overt-acts.

L. C. J. Treby.

This is a doubt I have often thought of, I thought it most natural that the Word Overt-act should relate to the first Article, viz. compassing and imagining of the King's Death: For Overt-act seems to be opposed to something of a contrary Nature: Act is opposed properly to Thought, Overt is properly opposed to secret. And that sort of Treason consisting in secret Thought and internal Purpose, cannot be known, tryed, and judged of, without being Disclosed and manifested by some external open act. VVherefore it

is pertinent and Reasonable, in order to Attaint a Man of such Trea∣son, that the Indictment should Charge and set forth the Act, as well as the Thought. And so it hath been used to be done.

But, such Order or manner doth not seem so natural or necessary, in framing Indictments for other Treasons, where the Treason con∣sists in visible or discernible Facts; as levying War, &c.

Nevertheless I think an Overt-Act ought to be alledged in an Indictment of Treason for adhering to the King's Enemies, giving them. Aid and Comfort. And the Overt-Act, or Acts, in this Case, ought to be the particular actions, means, or manner by which the Aid and Comfort was given.

My Lord Cook declares his Opinion to this purpose. His words which I read out of his Book here) are these. The Composition and Connection of the words are to be observ'd, viz. [thereof be Attainted by Overt Deed] This, says he, Relates to the several and distinct Treasons, before ex∣press'd, and especially to the compassing and imagination of the Death of the King, &c. for that it is secret in the heart, &c. Now the Articles of Treason, before exprest in the Statute of 25. E. 3. are four. 1. Compas∣sing, &c. 2. Violating the Queen, &c. 3. Levying War, and 4. This of Adhering, &c. (And yet it is hardly possible to set forth any O∣vert Act concerning the 2d. otherwise than in the words of the Sta∣tute: That Article expressing so particular a Fact.)

I do observe also, that these words [Being thereof Attainted by Overt Fact] do, in this Statute, immediately follow this Article of Adhering, &c. And it would be a great Violence to Construe them to refer to the first Article only, and not to this last, to which they are thus con∣nected. If they are to be Restrained to a single Article, it were more agreeable to the strict Rules of Construing, to refer them to this of Adhering only.

L. C. J. Holt.

That which I insist on is this, whether the Indictment would be good, without expressing the special Overt-Act. If it be, then this is a surplusage, and we are not confin'd to it; but if it be not a good Indictment without expressing it, then we are confin'd to it.

Mr. Phipps.

I believe Mr. Sollicitor never saw an Indictment, of this kind, without an Overt-Act laid in it.

L. C. J. Holt.

Can you prove the Facts laid in the Indictment? for certainly the Indictment without mentioning particular Acts of adhe∣rance, would not be good.

Mr. Cowper.

Yes, my Lord; and as to the Evidence before you, we would only offer this; whether in this Case, if the Indictment were laid generally, for adhering to the King's Enemies in one place, and in another place levying of War, and nothing more particular, it would be good; I doubt it would not. But when there is laid a particular Act of Adhering, we may give in Evidence matter to strengthen the di∣rect proof of that particular Act of Adhering to the King's Enemies, tho' that matter be not specially laid in the Indictment: For the Act goes only to this, That the Prisoner shall not be Convicted, unless you prove against him the Over-Acts specially laid in the Indictment; But whether it shall not be heard, to make the other Overt-Act which is laid, the more probable. Now we have laid a special Overt-Act in the Indictment; and we have produced Evidence of it, and we would produce likewise collateral Evidence, to induce a firmer Belief of that

special Overt-Act, by shewing you that he hath made it his practice, during the War, to aid and assist the King's Enemies; But if the Jury do not find him Guilty of the special Overt-Acts laid in the Indict∣ment, they cannot find him Guilty by the proof of any other O∣vert-Act not laid in the Indictment. But if we prove he has made this his practice, in other instances, during the War, whether that proof shall not be received?

Mr. Phipps.

My Lord, I desire the Act may be read. It expresly contradicts what Mr. Cowper says, for it says, That no Evidence shall be given of any Overt-Act, that is not expresly laid in the Indict∣ment. (The Act was Read.)

L. C. J. Holt.

That is, you may give Evidence of an Overt-Act, that is not in the Indictment, if it conduce to prove one that is in it. As consulting to kill the King, or raise a Rebellion, is laid in the In∣dictment, you may give in Evidence an acting in pursuance of a Consult, that is an Evidence that they agreed to do it, tho' that do∣ing of the thing is, of it self, another Overt-Act, but it tends to prove the Act laid in the Indictment.

Mr. Phipps.

The Overt-Act laid in this Indictment, is his Cruising in the Clancarty; and this Overt-Act you would prove, is no Evidence of that, nor relates to it, but it is a distinct Overt-Act of it self.

L. C. J. Holt.

You cannot give Evidence of a distinct Act, that has no relation to the Overt-Act mention'd in the Indictment, tho' it should conduce to prove the same species of Treason.

Mr. Cowper.

We would apply this proof to the Overt-Act laid in the Indictment.

L. C. J. Holt.

Any thing that has a direct tendency to it, you may prove.

Mr. Cowper.

We have laid the Overt-Act, that he did voluntarily put himself on Board this Vessel of the French King, the Loyal Clan∣carty, and did go to Sea in her, and Cruise, with a design to take the Ships of the King of England, and his Subjects. Now part of the Overt-Act, is his Intention in the Act of Cruising, we do not charge him with taking one Ship, so that his Intention is a Mem∣ber of the Overt-Act, and it must be proved, to make his Cruising Criminal, that he design'd to take the Ships of the King of England. Now we think it a proper proof of his Intention, to shew, that du∣ring this War, before and after the time of the Treason laid in the Indictment, he was a Cruiser upon, and Taker of the King's Ships, and this fortifies the direct proof given of his Intention.

L. C. J. Holt.

I cannot agree to that, because you go not about to prove what he did in the Vessel call'd the Loyal Clancarty; but that he had an intention to commit depredation on the King's Subjects: So he might, but in another Ship. Now, because a Man has a de∣sign to commit depredation on the King's Subjects in one Ship, does that prove he had an intention to do it in another?

Mr. Phipps.

He was Cruising in the Clancarty, that is the Overt-Act laid in the Indictment; and the Overt-Act you would produce, is his being in another Vessel.

L. C. J. Holt.

Go on, and shew what he did in the Clancarty. You the Prisoner, will you ask this Man any Questions?

Mr. Phipps.

Crouch, you said, that the Prisoner did say he could not deny but he was an Irish man; how came you to talk about it?

R. Crouch.

He said, I cannot deny but I am an Irish Man.

L. C. J. Holt.

Did he say he was an Irish man? What were the words he used?

R. Crouch.

He told the Lieutenant he was an Irish Man.

Mr. Phipps.

What Discourse was there? How came he to say that?

R. Crouch.

I went by only, and heard the words spoken to the Lieutenant.

L. C. J. Holt.

Did he speak English?

R. Crouch.

Yes, my Lord.

L. C. J. Holt.

If he spoke English, that is some Evidence he is an English man, tho' the contrary may be proved by him.

T. Vaughan.

That would no more prove me an English-man, than if an English man were in France, and could speak French, would prove him a French-man, because he could speak French.

L. C. J. Holt.

You shall he heard by and by to say what you will on your own behalf.

Mr. Phipps.

Were there any French men on board the Clancarty?

R. Crouch.

No, Sir.

Mr. Phipps.

Mr. Vaughan, will you ask him any Questions your self?

Mr. Cowper.

Call T. Noden.

T. Vaughan.

How did you know that there were no French-men a∣board? Did I address my self to you, when I came aboard?

R. Crouch.

No, Sir.

T. Vaugan.

Did I not address my self to the Captain when I came aboard? How came I to tell you I was an Irish-Man?

R. Crouch.

They were all Scotch-men, English-men, and Irish men.

Mr. Phipps.

Mr. Vaughan, you need not take up the time of the Court about that matter. Mr. Cowper, you may go on.

Mr. Sol. Gen.

Did the Prisoner own that he acted by the Fr King's Com∣mission? Did you know any thing of his having a French Commission?

R. Crouch.

Yes, I heard he had one, but I did not see it, but I heard so by the Company.

L. C. J. Holt.

Were there any French-men a-board?

R. Crouch.

No, not that I know of. They were Dutch-men, and English-Men, and Scotch-men, and Irish Men.

Mr. Cowper.

Call T. Noden (Who appear'd and was Sworn.) Do you give my Lord and the Jury an Account of taking the Vessel, call'd the Two-and-Twenty-Oar-Barge.

T. Noden.

Last Year, about June or July, to the best of my Remem∣brance, I belong'd to his Majesty's Ship the Coventry, and we took the Two-and-Twenty-Oar-Barge.

L. C. J. Holt.

How many Dutch men were aboard?

T. Noden.

I do not know of above one.

L. C. J. Treby.

What were the rest? Were there any French-Men?

T. Noden.

Yes, there were several French-Men aboard. I belong'd to the Coventry. And as we were sailing by the Nore, and the Gunfleet, our Captain spy'd a small Vessel sailing by the Sands, and he suppos'd her to be a French Privateer, and he fir'd a Gun to make them bring to, and they did not obey; and at last fir'd a Gun, Shot and all, and they would not come to. Then the Captain order'd to Man the Boat, and row after them: So the Barge, and Pinnace, and Long-Boat were Mann'd; and they came pretty near them. This Barge we took, was aground also, and they got her afloat, and she run aground again:

And as they were aground, most of them out of the Boat, our Long-Boat struck aground; and waded after them near half a League, and when we came to the Barge, there was this Captain Vaughan, and two or three and Twenty more. And there was two Dutch-Men, and, as I apprehended, some French-men; there was in her a Blunderbuss, and small Arms, and a considerable quantity of Hand-Granadoes.

L. C. J. Holt.

What Vessel was you aboard?

T. Noden.

The Coventry.

Mr. Sol. Gen.

What Country-man did Captain Vaughan say he was?

T. Noden.

I did not hear any thing of it. Our Captain Examin'd the Dutch-man what Country-man the Commander was, and he said he was an Irish-man; but I did not hear it my self. When Captain Vaug∣han was brought aboard the Coventry, I was put aboard the Prize we had taken.

Mr. Cowper.

Had you any discourse with Captain Vaughan.

T. Noden.

No.

L. C. J. Holt.

Did they endeavour to take your Ship?

T. Noden.

No, but endeavour'd to get away from us.

L. C. J. Holt.

What Guns or Ammunition had they?

T. Noden.

I cannot tell particularly, there was some Canvass Baggs, every Man had a Carteridge-bag, and there were some Hand-Granadoes.

Mr. Whitaker.

What Fire-Arms had they?

T. Noden.

I cannot say how many, but they had Muskets and Pistols, and two Blunderbusses.

Mr. Cowp.

Did you understand whence this Ship the L. Clancarty came?

T. Noden.

The Dutch-man said they came from Calis. As near as I can guess, we spy'd them about Eleven a Clock, and we weigh'd Anchor in the Afternoon, on Sabbath-day, and they took us to be a Light Collier, and endeavour'd to board us, as the Dutch-man said; but when they knew what we were, they endeavour'd to escape from us.

Mr. Cowp.

Call Sam. Oldham. (Who appear'd, and was Sworn.) Mr. Old∣ham, was you aboard the Coventry, when she took the Ship call'd the Clancarty?

Sam. Oldham.

Yes, I was.

Mr. Cowper.

Pray give an Account what you observed of the Prison∣er T. Vaughan then?

Sam. Oldham.

We weigh'd our Anchor first at the Boy and Nore, so we saw a Prize in the Morning, the Captain said it was a Prize, and we made Sail after him, and they ran on the Goodwin Sands; and the Cap∣tain seeing the Barge run aground, we fir'd at her to bring her to; we fir'd a second, and she would not come to, but ran aground again. When she was aground, by the Captain's Order, we mann'd our Boats, and out we went after her.

Mr. Cowper.

Did you take her?

Sam. Oldham.

We went and our Long-Boat ran aground; I was in the Long-boat, and we waded, I believe, a Mile and half after her.

L. C. J. Holt.

What French-men were aboard?

Sam. Oldham.

I cannot justly say whether there were any.

L. C. J. Holt.

Were there any?

Sam. Oldham.

I think one or two.

Mr. Cowper.

Were there any Dunkirkers or Walloons aboard?

Sam. Oldham.

There was a Dutchman, who they call'd a Fleming, and I dis∣cours'd him.

L. C. J. Holt.

How many Outlandish men were there aboard? was there a dozen, or how many?

Sam. Oldham.

I cannot say the quantity.

Mr. Cowper.

Was there more than two or three.

Sam. Oldham.

Yes, more than two or three.

L. C. J. Holt.

What Forraigners?

Sam. Oldham.

Yes. And there were two English-men.

Mr. Cowper.

What did you observe of the Prisoner at the Bar, at the tak∣ing of the Ship?

Sam. Oldham.

I did not come aboard along with the Prisoner, but with his Man, and his Man said he was an Irish-man, and that he was Commander of the Boat.

Mr. Soll. Gen.

What was their design in that Ship Clancarty?

Sam. Oldham.

I cannot tell that.

Mr. Cowper.

Did they resist, in their being taken?

Sam. Oldham.

I cannot tell that, I saw no Arms.

Mr. Cowper.

You were in the Action, was there any resistance made?

Sam. Oldham.

I saw no resistance, they offered to run, they were aground once, and got off again.

Mr. Phipps.

You say there were Forraigners, what Countrey-men did you believe those Forraigners to be?

Sam. Oldham.

I cannot justly say, I believe Dutch-men.

L. C. J. Holt.

How many Dutch-men were there?

Sam. Oldham.

I cannot say.

Dr. Oldish.

But you said there were some two or three French-men, and that they spoke French; do you understand French?

Sam. Oldham.

No Sir.

Dr. Oldish.

Then how do you know they were French-men, and spoke French.

Sam. Oldham.

They said they were, they did not speak English, several of the Ships Company said they were French.

L. C. J. Holt.

If they were all Dutch-men, and appear in a hostile manner against the King of Englands Subjects, they are Enemies, tho we are in League with Holland, and the rest of the Seven Princes.

Mr. Phipps.

The Indictment runs, That the French King, quantum Navicu∣lam vocat, The Loyal Clancarty; cum quam plurimis subditis. Gallicis Inimi∣cis Dei Dom•• nunc ad numerum quid 〈◊〉〈◊〉 Personarum replet preparavit.

L. C. J. Holt.

Suppose it doth.

Mr. Phipps.

It is Subditis Gallicis, my Lord.

L. C. J. Holt.

They will be Subjects in that matter, if they act under his Commission: they are Enemies to the King of England, and they have made themselves the French King's Subjects by that Act.

Mr. Phipps.

It appears not that they are French-men, my Lord.

L. C. J. Holt.

If Dutch-men turn Rebels to the States, and take Pay of the French King, they are under the French King's Command, and so are his Sub∣jects. Will you make them Pyrates when they act under the Commission of a Soveraign Prince? They are then Subditi to him, and so Inimice to us.

Mr. Phipps.

It does not take away their Allegiance to their Lawful Prince. They may go to the French King, and serve him, yet that does not transfer their

Allegiance from their Lawful Prince to the French King, and make them his Subjects. But however, to make them Subjects within this Indictment, they must be Gallici Subditi; so they must be Frenchmen as well as Subjects.

L. C. J. Holt.

Acting by Vertue of a Commission from the French King, will excuse them from being Pyrates, tho not from being Traitors to their own State, but to all other Princes and States against whom they do any Acts of Hostility, they are Enemies; And their serving under the French Kings Com∣mission, makes them his Subjects as to all other, but their own Prince or State. And tho they be not Frenchmen, yet they are Gallici Subditi; for it's the French Subjection that makes them to be Gallici Subditi.

Mr. Phipps.

Pray my Lord, suppose a Subject of Spain should go over to the French and Fight against England; I take it, he may be termed an Enemy of the King of England, tho his Prince be in League with ours, but with submission, he cannot properly be said to be a Subject of the French King; For suppose an Indictment of Treason against a Foreigner, should say, that he being a Subject, did commit Treason; and it be proved he is not a Subject, with sub∣mission, he must be acquitted.

Mr. Cowper.

There is a Local Allegiance while he is in the Country, or Fleets, or Armies of the French King.

L. C. J. Holt.

Dutchmen may be Enemies, notwithstanding their State is in Amity with us, if they act as Enemies.

Mr. Cowper.

Call R. Bub. (He was sworn.) Was you aboard the Coventry, when she took the Clancarty?

R. Bub.

Yes Sir.

Mr. Cowper.

Give an Account what you know of the Prisoner, Tho. Vaug∣han, at the taking of that Ship.

R. Bub.

We came aboard the Coventry, and were at the Nore at Anchor, our Pennant was taken down to be mended. So in the Night Captain Vaug∣han, with his two and twenty Oar Barge, rounded us two or three times. In the Morning we weigh'd Anchor, and fell down in order to go to the Downs; and we came up with them, and fir'd at Captain Vaughan, and he would not bring to. With that our Captain order'd to have the Barge, and Pin∣nace, and Long-Boat, to be mann'd, to go after him. They follow'd him, and at last came up with him, and came up pretty near; but could not come so near with the Long-Boat, but were fain to wade up to the middle a Mile and a half. We hoisted our Colours; in order to fight them, and bore down still upon them; and they would not Fight our Men. And we took them out, and when they came aboard, the Englishman that was a Pilot was to have his Freedom, to Pilote them up the River. He confest to the Captain, that Captain Vaughan intended to burn the Ships in the Harbour. And the next day after the Pilot had confessed it, Captain Vaughan himself confest it on the Deck, that he came over with that design.

Mr. Cowper.

Who did he confess it to?

R. Bub.

To the Boat-swain and Gunner, as he was on the Deck, on the Lar-Board side, that he came on purpose to burn the Shipping in the Har∣bour.

L. C. J. Holt.

Did he confess that himself?

R. Bub.

Yes, my Lord.

L. C. J. Holt.

Whereabout was this, at the Buoy in the Nore?

R. Bub.

In the Downs, my Lord.

L. C. J. Holt.

Where did the Ships lye, that were to be burn'd?

R. Bub.

At Sheerness.

Mr. Soll. Gen.

He own'd himself to be an Irishman, did he not?

R. Bub.

Yes.

Mr. Cowper.

And that he came from Callis?

R. Bub.

Yes.

Mr. Cowper.

Had you any discourse with him about a Commission?

R. Bub.

No. But our Lieutenant and Captain had, but it was not in my hearing; I will not speak further than I heard, and what I can justify.

Mr. Soll. Gen.

Will you ask him any Questions?

Mr. Phipps.

No.

Mr. Soll. Gen.

Then call Mr. Jo. Crittenden, Marshal of Dover Castle. (who was Sworn) Mr. Crittenden, Pray what did you hear the Prisoner at the Barr confess of his design in coming to England?

Mr. Crittenden.

I did not hear him say any thing of his design.

Mr. Soll. Gen.

What did he confess?

Mr. Crittenden.

He confest he was an Irishman.

Mr. Whitaker.

Upon what occasion did he confess that?

Mr. Crittenden.

When I enter'd him into my Book, I ask'd him what Countreyman he was.

Mr. Cowper.

What are you?

Mr. Crittenden.

I am the Marshal of Dover Castle.

Mr. Cowper.

By what Name did he order you to enter him?

Mr. Crittenden.

Thomas Vaughan an Irishman.

L. C. J. Holt.

Upon what Account did you enter him?

Mr. Crittenden.

As a Prisoner.

Mr. Cowper.

Did he speak any thing of a Commission?

Mr. Crittenden.

I did not hear him say any thing of that.

Mr. Phipps.

Have you your Book here?

Mr. Crittenden.

Yes Sir.

Dr. Oldish.

Was he not in Drink when he said so?

Mr. Crittenden.

I believe he was not very sober indeed.

Mr. Phipps.

Did you ever after hear him say he was an Irishman?

Mr. Crittenden.

The next day he deny'd it.

Mr. Cowper.

When he had consider'd the danger of it.

Mr. Crittenden.

The next day he was examin'd by some of the Justices of the Peace.

Mr. Soll. Gen.

Was you by when he was examined by the Justices?

Mr. Crittenden.

Yes.

Mr. Soll. Gen.

What did he then say?

Mr. Crittenden.

Then he said he was of Martenico.

Mr. Soll. Gen.

Set up Mr. Bullock (who was sworn.) Mr. Bullock, do you know the Prisoner at the Bar?

Mr. Bullock.

Yes.

Mr. Sol. Gen.

Pray what have you heard him say of his Design that he came into England for?

Mr. Bullock.

He came to Dover about the 14th of July 1695. as I remem∣ber: I went with several others, who were brought by the Captain of the Coventry, and the Lieutenant, and some others: And when we came thither, he there owned himself an Irishman; but when he went the next day to be examined, he said he was of Martenico. He told me he had that Barge from the Duke of Bulloign, and came on the Coast, and was chased into the Flatts, where they took him.

L. C. J. Holt.

Did you ever hear him say he had any Commission from the French King?

Mr. Bullock.

I know nothing of that; it was late, and we did not examine him then; but the next day, when he came to be examined, he said he was of Martenico.

Mr. Sol. Gen.

What did he say his design was?

Mr. Bullock.

He said, that seeing the Boat at Bulloign, he bought it of the Duke of Bulloign; and the Duke ask'd him what he would do with her? and he said, he would fit her up, and go and take a Ship at Sea, that is upon our Coasts.

Mr. Phipps.

We are in your Lordship's Judgment, whether we need give any Evidence; for we think they have not proved their Indictment: For the Indictment sets forth, That the French King fitted out the Loyal Clancarty, of which Thomas Vaughan was Commander; and that very many Frenchmen, Subjects of the French King, were put on aboard. Now the first Witness swears, there were no Frenchmen; and another swears there was one or two; another, that they were Forreigners, but does not believe they were Frenchmen: So there is no proof of that part of the Indictment; nor is there any proof that he was Captain of the Loyal Clancarty: So that none can say, it is the same Vessel mentioned in the Indictment: Nor is any Act of Hostility proved; for all the Witnesses say, that Vaughan never pretended to attack them, but run from them. So that all they depend on, to support the Indictment, is to prove that he had a design to burn the Ships at Sheerness: Which will not serve their turn; for the words of the Indictment are, ad predandum super altum ma∣re. Now Sheerness is not super altum mare, but infra Corpre Comitatus, and then not within the Indictment.

Mr. Cowper.

The words, Ships at Sheerness, do not imply, that the Ships lay within the Town of Sheerness, but off of Sheerness, which is altum mare.

Mr. Phipps.

Then it is not in your Indictment; for that says at Sheerness.

Mr. Cowper.

No, off of Sheerness.

Mr. Soll. Gen.

It is no contradiction, to say the Sea is within part of a County.

Mr. Phipps.

The Indictment says, at Sheerness.

Mr. Soll. Gen.

Off of Sheerness, is the High Sea.

Mr. Phipps.

Sheerness is not the Buoy in the Nore. Then you must prove he was Captain at this time: For the Indictment says, Ad tunc fuit Capita∣neus & Miles.

L. C. J. Holt.

One Overt Act of Adhering to the Kings Enemies, is, that he put himself as a Souldier on Board the Ship.

Mr. Phipps.

You will make one part agree with another, that the French King did set out a Ship, and gave him a Commission to be Captain of her.

L. C. J. Holt.

The Witnesses have proved he acted as a Captain.

Mr. Phipps.

He was taken, and sure if he was taken, he must have his Com∣mission with him.

Mr. Soll. Gen.

Examine the Marshal, he took an Account of him; and by direction of Mr.Vaughan himself, he entered him as Captain; and he enter'd several men in the Ship as Frenchmen, by their own direction. (Mr. Crittenden was call'd) Mr.Crittenden, have you got your Book in which you made the Entry?

Mr. Crittenden.

Yes, I have it.

Mr. Soll. Gen.

By whose Order did you enter them?

Mr. Crittenden.

By the direction of Captain Vaughan, the Prisoner at the Bar.

Mr. Cowper.

How did you know he was a Captain?

Mr. Crittenden.

Because he told me he was Captain, and I enter'd him as such in my Book.

Mr. Soll. Gen.

Captain of what?

Mr. Crittenden.

The Loyal Clancarty?

Mr. Soll. Gen.

Pray read your Entry in your Book.

Mr. Crittenden.

Thomas Vaughan, Captain, Irishman, the 14th of July 1695. and so of all the rest of the Ship's Crew.

Mr. Justice Turton.

Did you write these in the presence of Capt.Vaughan?

Mr. Crittenden.

Yes, in the same Room where he was.

Mr. Phipps.

Did you write it by his direction?

Mr. Crittenden.

For his own part, by his direction; and for the rest, by their direction.

L. C. J. Holt.

Take all the circumstances together, it is great evidence, con∣sidering what they were about, and what Vessel they had. Mr. Crittenden, can you tell how many Frenchmen were there.

Mr. Crittenden.

I will tell you presently (he counts them in his Book) there were thirteen.

Mr. Soll. Gen.

Did Captain Vaughan hear any of them bid you enter them as Frenchmen?

Mr. Crittenden.

I cannot be positive in that, I suppose he did, he was in the same Room.

L. C. J. Holt.

Do you expect Witnesses from France, to testify where they were Born and Christen'd?

Mr. Phipps

One Witness says there was not one Frenchman there.

L. C. J. Holt.

Not to his Knowledge.

Mr. Soll. Gen.

What do you know of his having a French Commission?

Mr. Bullock.

I did not see it.

Mr. Whitaker.

Did he own his having any French Commission?

Mr. Bullock.

I cannot tell.

Mr. Justice Turton.

He own'd himself a Captain.

Mr. Phipps.

He might be a Captain in another Ship, but not in this Ship; they ought to prove he was Captain at that time, in that Ship, by the French Kings Commission.

L. C. J. Holt.

All the Witnesses say he Acted as a Captain at that time.

Mr. Cowper.

He own'd himself the Captain of the Loyal Clancarty.

Mr. Bar. Powis.

What can be plainer, than that he owned himself Cap∣tain?

Dr. Oldish.

This seems to me a very strange proof, to be built only upon the sayings of these Persons, that they were Frenchmen, and this to a man who had no Authority to examine them, when it might have been easily proved in a regular way, in case they had been so; they might have been examined before a Magistrate, and thereby it would have appeared whether they were French or no. And 'twas absolutely necessary in this case, because of the con¦trariety of the Witnesses; for the first Witness said, there was no Frenchman aboard; the next said there were two Frenchmen and a Dutchman; and Cru∣tenden said, there were 13. Now how can these be reconciled, unless there had been a Legal Examination of the Parties? But the thing we would chiefly go on is this, I think they have sail'd in the Foundation of the Trea∣son;

that is, to prove the Prisoner a Subject of this Crown; neither is there the least colour of proof thereof. At Night he came to Mr. Crittenden, and is in drink, there he says he is an Irishman; the next morning, when he is exa∣min'd before the Justices, then he comes in a kind of Judgment, and then such a confession would be of moment; but then he confesses himself to be a Frenchman of Martenico. Now, my Lord, what credit is to be given to these confessions; when before the Marshal he shall say, I am an Irishman; and the next day, when he is on examination, he declares himself a Frenchman; in one confession he is in drink, in the other sober? Now, my Lord, I say, what proof is here? Here then the Foundation of the Treason fails: For the Indictment is, That he being a Subject of the King of England, levies War. Now my Lord, it this Quality be not proved, all the rest of the Indictment falls to the ground: for it is impossible for him to commit Treason, where he is not a Subject, because there can be no Violation of Allegiance. So that if he be a Frenchman, as he declared before the Justices, he cannot be guilty of Treason. So that here they have fail'd in the Foundation of all; that is, to prove him a Subject of England. And because they affirm him to be so, it lies on those that affirm it, to prove it. But perhaps now they will say, that these little confessions of his will throw the burthen of proof on him. By no means; when here is a stronger presumption on the other side; a meer extrajudicial saying to Seamen, that he is an Irishman, cannot ballance his confession exa∣mined before the Justices, wherein he says he is a Frenchman; and so can ne∣ver throw the burden of proof on him. Therefore it lies on them that assert this, to prove it. But, my Lord, tho it doth not lie on him, yet we will prove him to be a Frenchman, and born at Martenico, by those that were at the christening of him, and have known him from time to time ever since. And because they say he can speak English, if you please to examine him, you shall hear him speak Natural French; so that that cannot prove him to be a Natu∣ral Irishman.

Mr. Phipps.

Such a Saying of a Foreigner will be of no great weight; be∣cause if a man go into a Foreign Country, he may say he is that Countryman, to get the more favour.

L. C. J. Holt.

What, to hang himself?

Mr. Phipps.

No, my Lord, a man that comes into a strange Country, may very well think he shall find better usage, by pretending to be of that Coun∣try, than by owning himself to be a Foreigner. But we will prove Vaughan to be a Frenchman. Call Robert French. (Then Rob. French was sworn) Mr. French, Pray give the Court and Jury an account, whether you know Mr. Vaughan, the Prisoner at the Bar, and how long you have known him, and what Countryman you take him to be, and the Reason why.

Rob. French.

I have known him this 14 years.

Mr. Phipps.

Where did you see him then?

Rob. French.

I saw him in Saint Christophers.

Mr. Phipps.

Pray give an Account how you came to know him.

Rob. French.

About 16 years ago I was at Mount-Surat, and I came to St. Christophers, and there I chanc'd to come into English Ground, among the Fa∣ctors; and so they brought me to the French Ground; and coming there, I was in company with several others that Night, and it happened I was told there was one Mr. Vaughan there; and I coming acquainted with him, he shewed me this Youth (he was a Youth then); He told me he was his Son, and recommended him to me, because he look'd on me to be a man in trust and business.

Mr. Phipps.

From that time what has he been reputed?

Rob. French.

A Sea-faring man.

Mr. Phipps.

But what Countryman?

Rob. French.

To be born in Martenico.

Mr. Phipps.

In whose Dominion is that?

Rob. French.

In the French King's Dominion.

Mr. Justice Turton.

What occasion had you to discourse of the place of his birth?

Rob. French.

Because his Father was look'd upon to be a Frenchman.

Mr. Justice Turton.

His Father was a Frenchman.

Rob. French.

Yes, my Lord, and lived at Martenico.

Mr. Cowper.

How old might he be at that time?

Rob. French.

About fifteen or sixteen.

Mr. Cowper.

How came you to be talking of his birth, and with whom?

Rob. French.

One that was talking with me, told me, his Name was Vaugh∣an, and that he was born there.

Mr. Cowper.

What introduc'd this discourse? How came he to tell you this, that he was born in that place?

Rob. French.

His Father told me so.

Mr. Cowper.

You were talking of one Vaughan of his Name; How many were in company when there was this talk?

Rob. French.

There were many of them.

Mr. Cowper.

Name them.

Rob. French.

It is so long ago, I cannot remember them.

Mr. Cowper.

Name as many as you can of them, as many as you do remem∣ber.

Rob. French.

One Mr. Bodiken, a Factor.

Mr. Cowper.

Who else?

Rob. French.

Several others.

Mr. Cowper.

You named one Vaughan before.

Rob. French.

Yes, I did.

Mr. Cowper.

But you had forgot him now.

Rob. French.

No, there was one Vaughan.

L. C. J. Holt.

Were there any more?

Rob. French.

Yes, there was. I remember the company that went along with me.

L. C. J. Holt.

Who were they?

Rob. French.

There were several Passengers that went over with me.

L. C. J. Holt.

How came you to talk of this man's Nativity?

Rob. French.

Because his Father said, he had not been out of the Island in 20 years (at which the People laught.)

Mr. Cowper.

What place was this discourse in?

Rob. French.

At St. Christophers.

Mr. Cowper.

How did his Father's saying, he had not been out of that Island in 20 years, prove his Son was born there?

Rob. French.

Because he recommended him to me as a Sea-faring man.

Mr. Cowper.

What is that a Reason of? What is that to his being born at Martenico?

Mr. Justice Turton.

What Countryman are you?

Rob. French.

I am an Irishman born.

L. C. J. Holt.

His Father acknowledg'd himself to be an Irishman born, did he not?

Rob. French.

No, my Lord, he did not say where he was born: I do not know.

Mr. Justice Turton.

Have you continued any acquaintance with Mr. Vaugh∣an since? How long did you stay at St. Christophers?

Rob. French.

I stay'd but four and twenty hours, to take in water.

L. C. J. Holt.

How long was it after this, before you saw this Gentleman, Captain Vaughan?

Rob. French.

I never saw him since, till I saw him in London. (Then the People laugh'd)

L. C. J. Holt.

Pray Gentlemen have patience. How do you know now that this is the same Man, that you saw fourteen years ago? For there must he a great alteration in a Man in fourteen years time, from what was at that time, being but fifteen years of Age.

Rob. French.

I believe in my Conscience this is the Man.

L. C. J. Holt.

Can you take it upon your Oath he is the Man?

Mr. Bar. Powis.

In what Language had you this Discourse?

L. C. J. Holt.

How long were you in company with him and his Father?

Rob. French.

I believe five or six hours.

Mr. Bar. Powis.

In what Language was this Discourse with his Father?

Rob. French.

My Lord, he spoke English, a sort of broken English.

L. C. J. Holt.

Where do you live your self?

Rob. French.

I live in Ireland.

L. C. J. Holt.

How long have you lived there?

Rob. French.

Nine or Ten Years.

L. C. J. Holt.

VVhereabout in Ireland?

Rob. French.

In Connaught.

L. C. J. Holt.

Nine or Ten Years?

Rob. French.

Yes, my Lord.

Dr. Littleton.

Did not Captain Vaughan, nor his Father speak Irish to you in that six hours?

Rob. French.

No, my Lord.

Mr. Justice Turton.

Hovv long have you been in England?

Rob. French.

Not above tvvo Months.

Mr. Justice Turton.

Did you hear of Captain Vaughan being to be try'd?

Rob. French.

No, my Lord.

Mr. Justice Turton.

Hovv did he come to hear of you then?

Rob. French.

I heard he vvas in Tovvn.

L. C. J. Holt.

It is a strange thing, you have a most admirable memory, and Captain Vaughan has as good a memory as you; that you should never have any intercourse for fourteen years, and yet should remember one an other after so long a time; It is a vvonderful thing too, that vvhen he could not knovv you vvere in Tovvn, and yet should call you a VVitness on his behalf, sure he must have the Spirit of Prophesie.

Rob. French.

He did not send to me at all.

L. C. J. Holt.

Hovv did you come to be here then?

Rob. French.

I vvill tell you, It vvas my custom alvvays to go and see Pri∣soners, and I heard there vvere Prisoners in Newgate, so I vvent to Newgate, and I met vvith one Dwall, and I asked him of another Gentleman that vvas there; and I vvent to the other side by chance, and I met vvith Captain Vaughan.

L. C. J. Holt.

What was thy Design? Why didst thou visit Newgate?

Rob. French.

Because it was my custom, because it was an Act of Charity.

L. C. J. Holt.

Did you go to Newgate out of Charity?

Rob. French.

I went to see my Friend, and carried a Letter to him. I went out of Charity.

Mr. Phipps.

You were in the West-Indies, upon the French ground; don't they speak English on the French ground, and French on the English ground?

Rob. French.

Yes.

Mr. Cowper.

So they do here. Did you ever see Captain Vaughan before that time?

Rob. French.

No.

Mr. Whitaker.

Did you visit lately any other Prisoners in Newgate, besides Captain Vaughan?

Rob. French.

Yes.

Mr. Whitaker.

Give their Names.

Rob. French.

I have visited Mr. Noland, and another Gentleman that is with him, and I went into the house and drank with him there.

Mr. Whitaker.

What is that other Gentlemans Name?

Rob. French.

I do not remember his Name at present, but he is a Compa∣nion of Mr. Nolands.

Mr. Whitaker.

Do you know him if you see him?

Rob. French.

I, I would.

L. C. J. Treby.

How long have you been in England?

Rob. French.

But two Months.

L. C. J. Treby.

Have you usually visited Prisoners in former years?

Rob. French.

My Lord, wherever I have been, it was my custom to do so.

L. C. J. Treby.

But how doth it consist, that you, who are an Irishman, should come hither to visit Prisoners in Newgate?

Rob. French.

I can prove under my Lord Mayor of Dublins hand, that I came here upon business; and I went to the Prison to visit the Prisoners for Charity sake, and did bestow it according as I was able.

L. C. J. Holt.

You had best stay there, and not go away, for we may have occasion to ask you some questions.

Mr. Cowper.

Do you not use, out of Charity, to be evidence for them?

Rob. French.

No, never before now in my Life.

Mr. Whitaker.

What other Prisons have you visited, besides Newgate?

Rob. French.

I did visit none.

L. C. L. Treby.

Had you no Charity for other Prisons?

Mr. Bar. Powis.

When you so visit Prisons, on what Account is it? Is it to give Ghostly advice?

Rob. French.

Upon a Charitable Account, my Lord.

L. C. J. Holt.

Ghostly Advice, is Charity.

Mr. Phipps.

Where is Mr. Lefleur? (He did not appear) Call Mr. Gold, who appeared,)

Cl. of Arr.

That Man is attainted, but pardoned.

Mr. Phipps.

Mr. Gold, how long have you known Captain Vaughan?

Mr. Gold.

I never knew Mr. Vaughan, before I saw him in the Marshalsea.

Mr. Phipps.

Is Monsieur Lefleur here? Is Mr. Deherty here? (Mr. Deherty appeared, and was Sworn.)

Mr. Phipps.

Do you know Mr. Vaughan, the Prisoner at the Bar?

Mr. Deherty.

Yes.

Mr. Phipps.

How long have you known him?

Mr. Deherty.

Five Years.

Mr. Phipps.

What has he been reputed all along, since you have known him?

Mr. Deherty.

Frenchman.

Mr. Phipps.

Did you know him in France?

Mr. Deherty.

Yes, and he was reputed a Frenchman there.

Mr. Justice. Turton.

What occasion had you to enquire into that, the place of his Nativity?

Mr. Deherty.

I did not enquire at all, and one that was his Servant, was my Comrade a great while.

Mr. Phipps.

Now we will prove where he was Christened, by one that was at his Christening, Mr. Dascine. (He appeared, and stood up, being Sworn, and spoke in French to the Court, pretending he could not speak English.)

L. C. J. Holt.

If he cannot speak English, there must be an Interpreter.

Mr. Soll. Gen.

They must find an Interpreter, he is their Witness.

Then a Person in Court stood up, and told the Court he could speak Eng∣lish as well as he, that he had been a Bailiffs Follower for several years.

L. C. J. Holt.

You can speak English, can you not?

Mr. Dascine.

I will speak as well as I can.

Kings Messenger. I am a Messenger to the King, do you not know me?

Mr. Dascine.

Yes.

L. C. J. Holt.

Prithee speak English.

Mr. Dascine.

As vvell as I can, my Lord, I vvill speak.

Mr. Phipps.

Are you svvorn?

Mr. Dascine.

Yes, my Lord.

Mr. Phipps.

Do you knovv Captain Vaughan?

Mr. Dascine.

In 1669. I vvas in Saint Christophers; I vvent from Rhoan, and from thence I went vvith Hats and Cloth to Crebeck, and had a Letter to one Thomas Williams, a Factor in Martenico. And after I had done, as I vvas co∣ming avvay, Mr. Williams desired me to go to a Christning, a mile and Half from Port-Royal. He told me, there was one Mr. Vaughan had a Plantation there, and desired him to be Godfather. And about two days after, I went from Port-Royal to St. Christophers again, and I came to Rhoan again in a Ship called St. Joseph. So in 1677, I went to St. Christophers again, and from thence to Martenico, to Mr. Williams; I asked him, what is become of that Young man we were at the Christening, and so he shewed me him that is here (point∣ing to the Prisoner.)

L. C. J. Holt.

That was in 1677.

Mr. Dascine.

In 1677. So I came from Port-Royal; I went to St. Christo∣phers, and so took Sail, and came to France again. And 13 years ago I went to St. Christophers again, and to Mountserat, and Martenico; and so when I was at Martenico, and asked Mr. Williams of this Young man, that I was at his Christening, and he said, He is at such an House, and I saw him there.

L. C. J. Holt.

Thirteen Years ago.

Mr. Dascine.

And we went and drank Punch together, and I came back for Rhoan.

L. C. J. Holt.

VVhen did you see him since that?

Mr. Dascine.

Never till I saw him here a Prisoner.

L. C. J. Holt.

How do you know he is the man?

Mr. Dascine.

He has a bruise in his side.

Mr. Phipps.

What was the Gentleman's Name, at the Christning of whose child you were?

Mr. Dascine.

Thomas Vaughan.

Mr. Phipps.

What was the child's Name?

Mr. Dascine.

Thomas Vaughan.

Mr. Phipps.

When you went the next time to Martenico, did Mr. Williams, you speak of, that was the Godfather, present this Person, Capt. Vaughan, to you, as the man who was then christened?

Mr. Dascine.

Yes, the next time.

Mr. Phipps.

Now is Captain Vaughan, that stands at the Bar, that very Gentleman?

Mr. Dascine.

I am sure it is he.

L. C. J. Holt.

You say this meeting was about 1669.

Mr. Dascine.

Yes.

Mr. Soll. Gen.

Pray what was the reason you were so inquisitive to know what became of that Person that was christened when you was there?

Mr. Dascine.

Because I being at the Christening, I ask'd him how the child did.

L. C. J. Holt.

How came you to take such extraordinary Observation of that child? Was he such a remarkable child?

Dr. Newton.

Where were you born?

Mr. Dascine.

In France.

Mr. Whitaker.

What are You?

Mr. Dascine.

A Barber by Trade.

L. C. J. Holt.

What Imployment have you?

Mr. Dascine.

An Officer in the Marshal's Court sometimes.

Mr. Justice Turton.

What was this man's Father, what sort of man was he?

Mr. Dascine.

A tall man.

Mr. Bar. Powis.

What was his Father's Name?

Mr. Dascine.

Thomas Vaughan.

Mr. Justice Turton.

Was his Father living when you was there the second time?

Mr. Dascine.

The last time I was there I did not see his Father, but I saw his Father the second time.

Mr. Justice Turton.

But you saw Mr. Williams, his Godfather?

Mr. Dascine.

Yes.

Mr. Phipps.

Call Simon Danneaun.

Tho. Vaughan.

My Lord, he is sick, and not able to come out of his bed.

Mr. Phipps.

Call Francis Harvey (who was sworn.)

Mr. Phipps.

Do you know Captain Vaughan?

Fr. Harvey.

Sir, In the year 1693. I was in France, with one Captain Bon∣tee, who was taken Prisoner in August the same year; and my Captain he had the liberty to go upto Paris with a Guard, for his pleasure, and to learn the Speech. And, as it happened, we came to lodge in a street, called, Dolphin∣street, at the sign of the Crown. And there was some Gentlemen, that were there to learn the Speech, that were my Countrymen; and there was a Young man there, and he was acquainted over the way, where this Gentleman, Capt. Vaughan lodged; He lodged at his Aunts, that sold Silks, her Name was Ma∣dam Wotton; I saw this Gentleman there; I am sure it is he; and with that I came acquainted with him, as well as the rest••

Mr. Phipps.

What was he reputed there?

Fr. Harvey.

A Captain of a Ship.

Mr. Phipps.

VVhat did he go for there? a Frenshman, or an Englishman, or an Irishman?

Fr. Harvey.

He went for a Frenchman, as I heard; One time his Aunt, she said, that he was born in the West Indies, at Martenico, and that he was her Si∣sters Son, that lived in Martenico.

Mr. Sol. Gen.

You say he was a Captain of a Ship; what Ship?

Fr. Harvey.

That I cannot tell.

Mr. Soll. Gen.

VVhen was that?

Fr. Harvey.

In 1693.

Mr. Phipps.

Is Mr. Le-fleur here!

Cl. of Arr.

He is a Prisoner in the Savoy; he was taken in the same Ship with Mr. Vaughan.

Mr. Phipps.

It is reasonable he should have been here, to give an Account of the Prisoner.

L. C. J. Holt.

Then they should have taken care to have had him here. Have you any more VVitnesses?

Mr. Soll. Gen.

I think we have given sufficient Evidence that he is an Irish∣man: but now we shall shew you, that all your VVitnesses have given a very extravagant Evidence to prove that he is a Frenchman. All he hoped for was, that the Prosecutors for the King could not be able to prove him an Irishman; He believed there were but 3 men could prove him so; that was David Creagh and 2 more; and so he writes to David Creagh, and tells him, That his life was in his power, and he hoped he and the other 2 would not discover it. This David Creagh was his Neighbour in Ireland; VVe will call him to prove that Capt. Vaughan was born at Galloway in Ireland.

Mr. Whitaker.

And here is his Letter under his Hand. Bring David Creagh, (who was sworn.)

Mr. Cowper.

I desire, before he give his Evidence, he may look upon those that have given Evidence about the Prisoner, one by one. (Then he lookt up on Rob. French). Mr. Creagh, do you know him?

Dav. Creagh.

No. (Then he look'd upon the rest.)

Mr. Cowper.

Have you had any of these men come to you on a message?

D. Creagh.

No, Sir.

Mr. Soll. Gen.

Do you know Tho. Vaughan, the Prisoner at the Bar?

D. Creagh.

Yes, I do.

Mr. Soll. Gen.

How long have you known him?

D. Creagh.

About 2 years.

Mr. Soll. Gen.

VVas that your first Acquaintance with him?

D. Creagh.

Yes.

Mr. Soll. Gen.

VVhat place vvas he born at, as you have heard?

D. Creagh.

At Galloway in Ireland.

Mr. Soll. Gen.

From vvhom did you hear it?

D. Creagh.

From all persons that I have heard speak of him.

Mr. Soll. Gen.

Did he ever ovvn to you that he vvas born there?

D. Creagh.

Yes oftentimes in my company.

Mr. Sol. Gen.

Did you ever receive a Letter from him about your giving E∣vidence in this matter?

D. Creagh.

Yes, Sir.

Mr. Soll. Gen.

Do you knovv this Letter? (vvhich was shovvn him.)

D. Creagh.

Yes, Sir.

Mr. Soll. Gen.

Do you knovv his Hand?

D. Creagh.

Yes, I partly knovv it.

Mr. Whitaker.

Did you ever see him Write?

D. Creagh.

This is the Letter I received from him.

L. C. J. Holt.

Read it. Do you think it is his Hand?

D. Creagh.

I cannot swear it; but I believe it is his Hand.

Mr. Phipps.

Have you seen him Write?

D. Creagh.

I have seen him Write several times.

L. C. J. Holt.

Do you believe it is his Hand?

D. Creagh.

Yes, my Lord, but I cannot swear it.

Then the Letter was read.

To Mr. David Creagh, in Newgate, These.

Mr. Creagh,

I have some assurance that Mr. Whitaker has no Witness to prove me a Subject of England, but you, and Two more, which I am glad of with all my heart; I hope I may have none against me that wish me worse than you and Capt. Etherington. If Mr. Whitaker has not Sworn you yet, I hope you will not appear against me. I de∣clare, if I had more than my Life, I would lay it in your hand. I am like to be sent to Newgate this Day, and it is like you and some more will be sent here, that we may not talk together. The Dutch Dogs took from me Eleven Hundred Dollars in mo∣ney, which certainly troubles me more than the thoughts of Death, which I value not a Straw; but I hope in 4 or 5 days to be supplied. I fear they will keep me close. I have all the liberty imaginable here to write, and my Friends suffered to see me. I can say nothing that is comfortable, but that I am very well in health, and nothing concer∣ned, if my money come in time.

Friday morning. T. Vaughan.

Mr. Phipps.

Is that Letter proved? That is not to the purpose. Nor of any weight considering who proves it.

L. C. J. Holt.

No, that none could prove him a Subject, but he and two more?

Mr. Soll. Gen.

We will produce only one Witness more, call Mr. Jo. Rivet. The Court being informed by some Gentlemen then on the Bench, that there was a Gentleman then in Court one Mr. Rivet, who being of Galloway; could Probably give some Account of the Prisoner, he was immediately called, and required to depose what he knows.

Jo. Rivet.

My Lord. I am sorry I am called, where Life is concerned, when I came hither only out of curiosity; but the Service I owe to this Go∣vernment, obliges me to speak vvhat I knovv, novv I am called to it. (Then he vvas Svvorn.)

Mr. Soll. Gen.

Do you know the Prisoner at the Bar? vvhat Countryman is he?

J Rivet.

I have knovvn him a great many years, vve vvere Children to∣gether in the same Tovvn, vve lived in Galloway in Ireland. I knevv his Fa∣ther, and Mother, and Brothers, and Sisters; and I remember him a Child, as long as I can remember any thing, I cannot determine to a certain num∣ber of years; and I remember him not only a School-boy, but also an Ap∣prentice to one Mr. Coleman. And I vvonder very much at vvhat Mr. French says, for by the Name and Place of his Birth, he must have Svvorn vvhat he knovvs to be othervvise: For the French's are a Family in Galloway; his Fa∣ther was an Honest Gentleman, and went over into Ireland in the Rebellion in

1641. and he there married a Woman, a Native of Galloway, and had seve∣ral children, one of which, in the latter end of, K. Charles's Reign, turn'd Papist, and I believe the grief for it hastened his Father's death. I own part of the Evidence may be true, about his being in the West Indies, but his mother, I believe, was never out of Ireland in her life.

Dr. Oldish.

VVhat was his Father's Name?

Jo. Rivet. John.

L. C. J. Holt.

You say, you knew this very Gentleman an Apprentice to one Thomas Coleman at Galloway.

Jo. Rivet.

I did so, my Lord.

L. C. J. Holt.

How long is it since you saw him?

J. Rivet.

I cannot be positive, I think at the reduction of Galloway in 1691. I cannot say whether at or after; but I saw him about that time, and knew him, and have known him from a Child; I knew him a School-Boy, and knew his Brothers.

Mr. Justice Turton.

What year did you know him first?

J. Rivet.

I dare not be positive, I remember him particularly well.

L. C. J. Holt.

Are you sure this is the Man?

J. Rivet.

I know him as well as any face I ever saw. I came accidentally into Court out of Curiosity; and one that knew me, that was of Galloway, gave Account to the Kings Counsel, and so I am called to give evidence.

L. C. J. Holt.

Do you know this Rob. French?

Jo. Rivet.

I cannot say I know him, for I see him but in the Dark; if I saw him in a better light, it may be I may. (Then Rob. French was set up for Mr. Rivet to see him) I think I recollect the face, I am not certain.

L. C. J. Holt.

Do you know this Gentleman?

Rob. French.

No, my Lord.

L. C. J. Holt.

Where did you live?

Rob. French.

In Connaught.

L. C. J. Holt.

Did you know John Vaughan of Galloway?

Rob. French.

I have heard of him, my Lord.

Mr. Bar. Powis.

What Trade was the Prisoner's Father?

Jo. Rivet.

He had the Market several years, he lived very well, and kept a Publick House in the Town.

Mr. Phipps.

Did you know any other Thomas Vaughan but this?

Rob. French.

No, not in Galloway.

Jo. Rivet.

This may be a confirmation of what I say; if it be thesame Gen∣tleman, his hair is reddish.

L. C. J. Holt.

Pull off his Perriwig (which was done.)

T. Vaughan.

My hair is not red.

L. C. J. Holt.

How are his Eye-Brows?

T. Vaughan.

A dark brown, my Lord, the same as my Wig.

Mr. Bar. Powis.

Let some body look on it more particularly, (then an Offi∣cer took a Candle, and look'd on his Head, but it was shaved so close, the colour could not be discerned).

Mr. Phipps.

We can give an Answer to this, my Lord; we shall prove, that there was one John Vaughan at Galloway, and he had a Son Thomas, that dyed ten years ago. As for Mr. Rivet, he is a meer stranger to us, we know nothing of him; and by what I can perceive, he comes in as a Volunteer, not subpaena'd by either side. And for Mr. Creagh, we shall shew he is not to be credited in any thing, for we shall prove him guilty of Felony, and that he

Swore, that if his Brother would not supply him with Money, he would swear Treason against him, and shop him in Newgate; and that he should not come out till he came upon a Sledge; and if so, there is no body surely can believe he will stick at Perjury, or Forgery, or any thing else, which may be for his advantage; Call Mr. Christopher Crey (vvho vvas Svvorn.)

Mr. Phipps.

Pray do you knovv David Creagh?

C. Creagh.

Yes.

Mr. Phipps.

Is he any relation to you?

C. Creagh.

Yes, he is my Brother.

Mr. Phipps.

Give the Court and the Jury an account what you know of your Brother.

C. Creagh.

It is an unnatural thing to come on this occasion, and I am sorry I am called on this account.

David. Creagh.

Speak what you have to say.

Mr. Phipps.

What do you know of your Brother, whether you have not found him guilty of stealing any thing?

C. Creagh.

My Lord, I am upon my Oath, I have known something of it, he has stollen some Gold from me.

L. C. J. Holt.

You pretend to be so very nice, you are to Answer to what you know of his reputation in general, and of his way of living.

C. Creagh.

His reputation has been but very slender, I am very sorry for it; several in the Court can give Account of it, as well as I. He served a Rela∣tion of his in New-Castle, he served there some time, and came to Town, and came to me, and depended upon me, and I subsisted him; and he took an opportunity one day, when I and my Wife were gone abroad, and no body at home but the Maid, and went up stairs, where my Wives Room is, and there being a Sash-Window, he opens it, and took out of my Wives Closet several pieces of Gold.

L. C. J. Holt.

How did you know that he did it?

C. Creagh.

I found it out afterwards; he was my Brother, and therefore I did not Prosecute him. I did not know he had it, till afterwards, that I found to whom he had disposed of the Gold. I enquired who was in the House, and thought the Maid had it; and she said none had been there, but my Brother; and he at last owned the Fact, and I had it again.

L. C. J. Holt.

Have you any more to say of your Brother?

Mr. Phipps.

Did he ever threaten to swear against you?

T. Vaughan.

Or me?

C. Creagh.

He has been confined in Newgate Eighteen Months, and I subsisted him in Charity, I allowed him all along; and he has been sending to me by several messages, that if I subsisted him not with more Money, than I did allow him, he would swear me into a Plot.

L. C. J. Holt.

Did he tell you so?

C. Creagh.

No, but he has sent me word so.

L. C. J. Holt.

Is the Man here that he sent you this word by?

C. Crey.

Yes, the Man is here.

Mr. Phipps.

Let him stand up.

L. C. J. Holt.

VVhere do you live?

C. Creagh.

In Watlin-street, I am a Merchant; I declare it is not in favour or affection, but only in conscience, that I declare this.

D. Creagh.

This is only to hinder me from giving my evidence against a Mer∣chant that I have taken up.

T. Vaughan.

VVhat Character had he in Spain?

Then David Creagh spoke, but was not heard.

L. C. J. Holt.

What do you say of the Gold?

C. Creagh.

He had it, my Lord.

D. Creagh.

Why did you not Prosecute me then, if I had it?

L. C. J. Holt.

You are not sure he took the Gold.

C. Creagh.

I was so sure he had it, because I had it from him again by another hand.

L. C. J. Holt.

Did he tell you so, that he had it?

C. Creagh.

No, but I had a Letter about it.

L. C. J. Holt.

Where is that Letter?

C. Creagh.

I have it not here.

L. C. J. Holt.

Give not an evidence of a Letter, without the Letter were here, it ought to have been produced.

Mr. Phipps.

Call Christopher Heyden (he was Sworn.) Do you give the Court an Account what David Creagh has said to you of Swearing against any Body.

C. Heyden.

Several times, when my Master has sent me to him, to pay him Five Shillings a Week, or Five and Six Pence a Week, to subsist him.

Dr. Oldish.

Who are you Servant to?

C. Creagh.

He is my Servant.

C. Heyden.

This David Creagh has oftentimes told me, that I should tell his Brother, that if he would not supply him with more Money, he would Swear against him. When I came to the Sessions-House, when the Pyrates were tryed the first time. I was going through the Bail-Dock, where this David Creagh call'd to me; and I asked him what he did here? he said he was to be evidence against Captain Vaughan. No cer∣tainly, said I, you do not know him; do you? Says he, here's the thing, it had been better for me, that I had been an evidence against him before this; and I am forced to be an evidence against him, to save my self: And he bid me tell his Brother, God damn his Soul to all Eternity, if he did not send him supply that day, he would have him in Newgate, and that he should not come out again, till he came out upon a Sledge.

L. C. J. Holt.

Did he say so?

C. Heyden.

Yes, my Lord.

D. Creagh.

How long is it agone, Mr. Heyden?

C. Heyden.

It was the day the Pyrates were tryed; more than that, here was Mr. Wroths Man was with me at the same time; and because he should not hear what you said, you took me to the door.

Mr. Phipps.

Is Daniel Bryan here? (He appeared, and was Sworn.)

Dan. Bryan.

I was subpaena'd here for I know not what: For I know not Captain Vaughan.

Mr. Phipps.

Give me leave to ask you a Question. Do you know, or have heard of David Creagh?

Dan. Bryan.

Yes, Sir.

Mr. Phipps.

Will you give Account of what he has said of Swearing against any Body?

Dan. Bryan.

He has threatened his Brother several times, that if he would not send him relief, he would bring him in for something, and would inform against him.

Mr. Phipps.

Did he say he would Swear against him?

Dan. Bryan.

He did say he would inform against him.

Mr. Phipps.

What did you hear him say of Swearing against any one?

Dan. Bryan.

He said, he had rather others should perish, than himself.

Mr. Whitaker.

This Man was Condemned for the same Crime.

Mr. Phipps.

Mr. Vaughan, have you any other Witnesses? Call Creighton (who was Sworn.) What Countreyman are you?

Creighton.

A Connaught-Man, I was Born in Galloway, I believe Mr. Rivet knows me.

Mr. Phipps.

Did you know one John Vaughan, that lived at Galloway?

Creighton.

I knew him very well.

Mr. Phipps.

Do you know the Prisoner at the Bar?

Creighton.

No.

Mr. Phipps.

Do you remember, that that Jo. Vaughan had a Son Thomas, and what became of him?

Creighton.

Yes, he had a Son Thomas, but I understood that he went somewhere into the Countrey, and there dyed, and it was spread all about the Town.

Mr. Phipps.

Do you know what he dyed of?

Creighton.

I cannot tell.

L. C. J. Holt.

How long ago did he dye?

Creighton.

About Ten Years ago. I knew all the Brothers.

Mr. Phipps.

Did you know that Thomas Vaughan?

Creighton.

I knew him very well.

Mr. Phipps.

Is that Gentleman, the Prisoner, he?

Creighton.

No.

Mr. Phipps.

Do you believe that is not the Man?

Creighton.

I believe not.

Mr. Phipps.

Did you ever know any other Thomas Vaughan?

Creighton.

No.

Mr. J. Turton.

Had not John Vaughan a Son Apprentice at Galloway to one Thomas Coleman?

Creighton.

Not as I know of.

Mr. J. Turton.

How old was that Son, Thomas Vaughan when you knew, him?

Creighton.

I was Born at the next Door to that Thomas Vaughan that was reputed to be Dead.

Mr. J. Turton.

Was not that Thomas Vaughan Apprentice to Mr. Coleman?

Creighton.

I cannot certainly tell.

Mr. J. Turton.

How old was that Thomas Vaughan when he went away from Galloway?

Creighton.

I cannot tell.

Mr. J. Turton.

What is your own Age?

Creighton.

My Age is about Five and twenty.

L. C. J. Holt.

You have not seen him in ten Years?

Creighton.

No, my Lord.

L. C. J. Holt.

Can you take it upon your Oath, this is not the Man you saw ten Years ago, that Thomas Vaughan that you knew?

Creighton.

Yes, my Lord.

L. C. J. Holt.

How old was he when you were acquainted with him?

Creighton.

I cannot tell certainly; I believe he might be about fifteen.

L. J. C. Holt.

How long is that since?

Creighton.

Ten Years.

L. C. J. Holt.

What is your Name?

Creighton.

Creighton.

Mr. Cowper.

You say you knew him ten Years ago; Pray what sort of Person was he, and how did he differ from this Man?

Creighton.

He was better Set, and not quite so Tall as this Man, and full of the Small-pox; he was the quarrelsomst Boy in the whole Town.

Mr. Soll. Gen.

You say he was not quite so Tall as this Man.

Creighton.

No, he was not quite so Tall.

Mr. Soll. Gen.

Do you think he might not grow since? This was ten Years ago, when he was but fifteen Years old.

Mr. Cowper.

You knew him at fifteen; How long had you known him?

Creighton.

From my Infancy, till he departed the Town.

Mr. Cowper.

During all that time what Imployment was he in? Tell some Circumstances.

Creighton.

I think this Vaughan went to one Mr. Russel's School.

Mr. Cowper.

What to do?

Creighton.

To learn to write and read.

Mr. Cowper.

And was he not an Apprentice in that time?

Creighton.

I cannot tell.

Mr. Cowper.

Were you acquainted with him?

Creighton.

Yes.

L. C. J. Holt.

You lived next Door to him, Sure you must be acquainted with him?

Creighton.

He was a fighting Boy, for I remember he did once thrash my Coat soundly.

L. C. J. Holt.

Where do you live now?

Creigton.

At the Castle and Faulcon in Aldersgate-street.

L. C. J. Holt.

What Trade are you?

Creighton.

A Shoemaker.

Mr. Bar. Powis.

How long have you lived here?

Creighton.

This ten Years.

Mr. Bar. Powis.

What did that Thomas Vaughan dye of, that you say was dead before you came away, as it was reported up and down?

Creighton.

I cannot tell.

Mr. Cowper.

Just now you said he went away from Galloway, and it was reported then that he was dead ten Years ago; now you say you have been in England ten Years.

Creighton.

I came into England about ten Years ago.

Mr. Cowper.

Did you hear it at Galloway before you came away?

Creighton.

I heard it at Galloway before I came to London, and there are many can testifie that there was a Report that he was dead.

Mr. J. Turton.

How long was he gone from Galloway before you came away?

Creighton.

I cannot say to an Hour; I heard he was dead.

L. C. J. Holt.

Well, well, he went away from Galloway.

Mr. J. Turton.

Have you not been here twelve Years?

Creighton.

I think not; I came a little before the Revolution.

Mr. J. Turton.

That is eight Year ago. Just now you said you had been here ten Years.

Mr. Phipps.

Call John Kine. (Who was Sworn.) John Kine, Did you know one John Vaughan in Galloway?

Jo. Kine.

Yes, I lived with him.

Mr. Phipps.

What Children had he?

Jo. Kine.

Four Sons.

Mr. Phipps.

Had he any one of those Sons that was named Thomas?

Jo. Kine.

Not of those four.

Mr. Phipps.

Had he a Son Thomas?

Jo. Kine.

Yes, he had; he died about ten or eleven Years old of the Small-pox.

Mr. Phipps.

You say you lived with this John Vaughan; look upon the Pri∣soner at the Bar, Is he any of those Sons?

Jo. Kine.

No, Sir, I never saw this Man till now.

Mr. Phipps.

How long did you live with him?

Jo. Kine.

About eight or nine Years?

Mr. Phipps.

But how long have you been come away from him?

Jo. Kine.

About ten Years.

Mr. J. Turton.

How well do these two Witnesses agree together? The other said he died at fifteen, and was pitted with the Small-pox. This Man says he died at ten, and of the Small-pox.

L. C. J. Holt.

Where do you live now?

Jo. Kine.

I live in the City.

L. C. J. Holt.

How long have you lived there?

Jo. Kine.

Twelve Years.

L. C. J. Holt.

How long was this Thomas Vaughan dead before you came hither?

Jo. Kine.

Really I cannot be positive, I believe about eight or nine Years.

L. C. J. Holt.

Did Thomas Vaughan dye of the Small-pox?

Jo. Kine.

Yes.

L. C. J. Holt.

That you are sure of.

Jo. Kine.

I am sure that was the Disease he died of.

L. C. J. Holt.

You know him well, I believe.

Jo. Kine.

Yes, my Lord.

L. C. J. Holt.

How old was he when he died?

Jo. Kine.

About ten Years.

L. C. J. Holt.

Where was he buried?

Jo. Kine.

At Galloway.

Mr. J. Turton.

Why does not the Officer take Care? There is one talking with the Witness. Can you now reconcile your Evidence? (To the Prisoner's Councel.)

L. C. J. Holt.

Have you any more Witnesses?

Mr. Phipps.

No, my Lord.

Mr. J. Turton.

What were the Names of all the Sons?

Jo. Kine.

The eldest was John Vaughan, the other William Vaughan, ano∣ther Edward Vaughan, and another James Vaughan; that was all that he has alive.

Mr. Whitaker.

There is never a Thomas Vaughan among these:

Mr. Cowper.

Thomas died up and down in several Places:

Mr. Phipps.

Mr. Rivet, Do you know the Sons of that John Vaughan?

Mr. Rivet.

He had all these Sons, John, William, Thomas and James. He speaks of a Son Edward, I cannot exactly remember whether there was such a Son, or no; though I have a rude Idea of it, but am not certain. I knew this Thomas, I went to School with him, and I saw him in the Year 1691. a∣bout the surrender of Galloway.

Jury-man.

Is that Man at the Bar the same Thomas Vaughan?

Mr. Rivet.

I am positive of that.

L. C. J. Holt.

You saw him at the surrender of Galloway?

Mr. Rivet.

I did; it was about that time.

Thomas Vaughan.

I am a Subject of the Most Christian King, and I desire, though I speak English, that I may be Examined in French, in a Matter that touches me so near. And you may see by my Commission, my Lord, that I am a French-man; which I desire may be read.

L. C. J. Holt.

We shall not trouble you with that.

T. Vaughan.

I can shew you my Commission, wherein the King, my Ma∣ster, declares me to be a Subject of France.

Dr. Oldys.

Mr. Vaughan, I think, you need not trouble the Court to read the Commission; the Commission is the same as for all other Subjects of the French King, wherein he is lookt upon as a Natural born Subject of France; and so he owns himself upon his Examination before the Judge of the Ad∣miralty.

L. C. J. Holt.

Have you any more to say? As to the Examination, Who can prove that?

Mr. Cawley.

I can prove that, my Lord. (Mr. Cawley was Sworn.)

L. C. J. Holt.

Is that Thomas Vaughan's Examination?

Mr. Cawley.

Yes, my Lord, it is signed by him; and taken before Sir Charles Hedges the 25th of July, 1695.

L. C. J. Holt.

Read it. Then Mr. Cawley read the Examination of Tho∣mas Vaughan.