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

L. C. J. Holt.

Mr. Vaughan, Have you any more to say?

Tho. Vaughan.

It is very hard Circumstances I am under; if an English Man was in France, under the straights that I am here, it would be very hard for him to prove himself an English Man.

L. C. J. Holt.

You have had a very fair Tryal, and you shall have Justice, be it for you, or against you.

Tho. Vaughan.

I hope your Lordship will do me Right.

L. C. J. Holt.

Gentlemen of the Jury, The Prisoner at the Bar, Thomas Vaughan, stands Indicted for High-Treason, for adhering to the King's Ene∣mies; viz: That he put himself as a Soldier in the Service of the French King, in a Vessel called the Loyal Clencarty, with diverse other Persons on Board her, that were Subjects to the French King, and Enemies to the King of England, with a design to burn the King's, and his Subjects Ships; and for that purpose went in that Ship. That the Prisoner was on Board the Ship, and with such a design, is proved, without all Contradiction, by several Witnesses that have been produced; that is, that the Two and twenty Oar-barge, which is the same called the Loyal Clencarty, lay hovering about the Buoy in the Nore; those Men in the Coventry imagined they had some design of Mischief to the Ships, and they made after him with the Coventry. It was apprehended by Captain Vaughan and his Crew, that the Coventry would be too hard for them, and so they did submit, and were taken. And being Examined on what ac∣count he came on our Coasts, it is confest by him, That he came with a de∣sign to burn our Ships. You may observe what sort of Men were a Board. You have heard it proved to you, that Crittenden, the Marshal of Dover, entered those Persons taken a Board the French Vessel, of what Nation, and what Quality they were; and there were about a Dozen of these French Men, for they were entered as such. Now if a Subject of England to join with the King's Enemies, in pursuit of a design to burn or take any of the King's, or his Subjects Ships; that is, an adherance to the King's Enemies. But it ap∣pears, not only that Captain Vaughan was in their Company, but that he was their Commander; which Commanding the Vessel on Board, which were French Subjects Enemies of the King and the Kingdom of England, is High-Treason, and the particular Fact of Treason for which he is Indicted. And it appears that he had a Commission from the French King to command this Ves∣sel, the Loyal Clencarty.

Now the Prisoner having this Commission to be Commander of this Ves∣sel, though they who served under him were not Native French Men but other Foreigners, yet their subjecting themselves to him, acting by Virtue or Colour of that Commission, makes them to be the French King's Subjects, during their continuance in that Service; for otherwise all Prizes, which they should take, would make them to be Pirates; which none will pretend to maintain, when they acted by a Commission from a Sovereign Prince, that was an Ene∣my. And if they shall cruize upon our Coasts with a design to take, or de∣stroy any of the King's, or his Subjects Ships, they are Enemies, though they were the Subjects of a Prince, or State in Amity with the King of England. But at this time there is no necessity of entring upon this Question, because it is proved that diverse, who were on Board this Vessel were French Men, the joyning with whom, in Prosecution of such a Design, is that kind of High-Treason of adhering to the King's Enemies. So that if Captain Vaughan was a Subject of England, he is proved Guilty of High-Treason, if you believe the Evidence.

But now it is insisted on by Mr. Vaughan and his Council, That though he was exercising Hostility against the King of England, and designing Mischief to his Subjects; yet, says he, I was not a Subject of England, I was born a Sub∣ject

to the French King. If that be true, then is he not Guilty of High-Treason; he is an Enemy, but not a Traytor: And that is the Point you are now to consider of, Whether he be a Subject of England, or France?

Now as to that, he being taken under such Circumstances, and speaking English, it is reasonable to be presumed that he is a Subject of England, unless he proves the contrary. But then you have heard by several of the Witnesses, That when he was at first taken, he acknowledged himself to be an Irish Man; and he did not only acknowledge it to them that assisted in apprehending him, but being carried to Dover, when the Marshal entered him in his Book as a Pri∣soner, he entered him not as a French Man, but declared at that time he was an Irish Man. It may be he did not consider the Consequence of it, for the next Day he was carried before the Mayor of Dover, and then having considered better of it, that it was not for his Interest to acknowledge himself an Irish, Man he said he was born a Subject to the French King, and at Martinico. There were Scotch Men and Irish Men taken at the same time, and they were entered as of the Nation they belonged to, and so were diverse entered as French Men. So that unless he hath given sufficient Evidence to the contrary, this is sufficient to induce you to belive him an Irish Man born.

But he has endeavoured to take off this Evidence that has been given. First, he says, It was when he was in Drink that he did confess himself to be an Irish Man; but when he was Sober, he said he was a French Man. And besides that he calls a Witness, whose Name is Robert French, to give an account of him. And French says, That about fourteen Years ago he was at St. Chri∣stophers, on French Ground, and he did then see this Thomas Vaughan, he did take him then to be about the Age of fifteen. He says he stay'd there about four and twenty Hours, and that he was in the Company of this Vaughan and his Father about five or six Hours. He says his Father told him at that time, that this young Man, who was then about fifteen Years of Age, was born at Mar∣tinico. He says further, That his Father did recommend this Son to him to be a Sea-faring Man, being the Imployment he intended him for; and he is sure this is the Man. This Robert French was ask'd, Whether he ever saw this Vaughan from the time he first saw him at St. Christophers until this time? He says he never saw him since that time, till about two Months ago. He gives you this account how he came to meet with him; he says he came to Town, and being a Charitable man, he used to visit the Prisons; and he came to Newgate to one Knowler, and there he saw Captain Vaughan; and though he had not seen him for fourteen Years before, yet he knew him again, and is positive that he is the same Person.

Another Swears he knew the Prisoner about five years, and he was reputed a French man.

There has been another Witness produced which is that Dascine, who came up as a French man, and talked French, pretending he could not speak English; but on Examination it was discovered that he had an Imployment in England, and was a Bayliffs-Follower, and it appears he can speak English very well; and notwithstanding his pretence has given his Evidence in English. And he tells you, That he about the year 1669 did go to St. Christophers, and after∣wards to Martinico, and there he went to one Williams, who had a Friend whose name was Vaughan, at whose House there was a Christning to be of his Son, to whom Williams was to be Godfather; and this Witness was carried thither, and the Child was Christned Thomas. He tells you he went over again to St. Christophers, and to Martinico in the year 1677, and that then he enquired for this Child, and did see him. Then he says, after that, he went over again to St. Christophers and to Martinico about thirteen years ago, and then saw him again, and, I think, never saw him since until very lately; and this Prisoner he undertakes to tell you is the very Person.

But then one Harvey tells you he saw him in France in the year 1693, and there he was taken to be a French man, and he lived with a Woman that sold Silk that said he was her Nephew, her Sister's Son, and that he was born at Martinico: This is the Evidence he gives you to induce you to believe he is a French man.

Now in the first place, before I open the Evidence in answer to it, I de∣sire you to observe the Weight and Import of this Evidence that hath been pro∣duced by the Prisoner. First, for this French that says he saw Captain Vaughan fourteen years ago, when he was about fifteen years of Age; he had no for∣mer Acquaintance with him, stayed in his Company but six Hours, and came away within four and twenty Hours after his first arrival, and never saw him again in fourteen years; it is a strange thing that he should know him again so well as to be so positive that he is the same Person, for in fourteen years there is a great alteration in a man: For a man that has known one at the Age of fifteen, and not seen him in fourten years after, though before he was very well ac∣quainted with him, cannot so easily know him again. But however he is po∣sitive, upon his Oath, that he is the same Person that he saw at Martinico.

Then as for Dascine, you may consider him that he should take notice of a little Child that he saw Christned several years before, and that he should now remember him when he had not seen him in thirteen years; sure he had a great liking to this Child, that when he went to Martinico many years after he should be so inquisitive after him; I must leave these things to you to consider of: That he might have an Aunt in France that is very possible too.

But now consider how this Evidence hath been endeavoured to be answered; two Witnesses have been produced to contradict that which they have Sworn. The first is David Cray, who tells you he has known the Prisoner for two years, and says he was always reputed to be an Irish man, and born in Gallo∣way; he has often discoursed with him about his Country, and he told him that he was an Irish man, and born at Galloway. Then you hear what a Letter is pro∣duced writ to Cray when he was to come upon his Tryal, he mentions what his Defence was, and that it was impossible that any could do him any harm but he and two more. Cray Swears it is his Hand; that he hath seen him write, and he belives it is his Hand.

Then there is a Gentleman, Mr. Rivet, that came here by chance, who is a Galloway man, he saith he knew the Prisoner's Father, who was reputed to come thither about the time of the Rebellion in Ireland, in 1641. and lived at Galloway, and that this Prisoner, Mr. Vaughan, was his Son, and he knew him of a Child, was well acquainted with him, lived hard by him, remembers him an Apprentice in Galloway, and tells you to whom, and says he is sure this is the very man; and that he saw the Prisoner in 1691, about the time of the Reduction of Galloway; and he is confident that the Prisoner is the Son of John Vaughan at Galloway; and he gives you a particular account of him and his Fa∣mily; viz. of the Reputation and Manner of living of his Father, and what other Brothers he had; so that there is no Objection against his Credit, and it is hard to believe, since he is so positive and circumstantial, that he can be mi∣staken.

But the Prisoner and his Council have endeavoured to answer all this Evi∣dence; and first they have called Cray's Brother to prove that he is an ill man, for that he came into this Town where his Brother lives, who subsisted him and took him to his House, and one day when he and his Wife went abroad, he made bold with some of his Money; but they thought the Maid had it, and he charged her with it, but to his Satisfaction it did afterwards appear that David had it.

Then there is another, Christopher Hyden, Christopher Cray's Servant, who says he, heard D. Cray say he was forc'd to be an Evidence against Vaughan to save himself; and that he used to threaten his Brother, that if he would not give him more Money he would swear against him. Bryan saith much to the same purpose. These are produced to take off the Credit of D. Cray's Testimony.

But then Gentlemen, as to the place of the Prisoner's birth, two other Witnesses are produc'd to give you Satisfaction that this Capt. Vaughan was not the Son of that Mr. Vvughan of Galloway, whose Evidence I will open to you, and then you will see how coherent they are in their Testimony. The first is Creighton, a Shoemaker, he says he knew Thomas Vaughan, the Son of John Vaughan of Gal∣loway, about ten years since; he was a Galloway man bred, and lived the next door to John Vaughan that had a Son Thomas. He says he has been here a∣bout ten years in England. He says he thinks that Thomas Vaughan, the Son of John Vaughan, was about the Age of fifteen years, but that this Prisoner is not he, for that Thomas Vaughan was disfigured with the Small-pox; he re∣membred him well, he had reason for it, for he once basted him soundly, and that he went away from Galloway when he was about fifteen years of Age, and was reported to be dead; and if it were so this Prisoner cannot be the Person.

The other Witness is as positive as Creighton, for he saith, He knew this John Vaughan of Galloway, and his Son Thomas; and that Thomas Vaughan, Son of John Vaughan, died about ten years since of the Small-pox. So that they have found two Thomas Vaughans; one tells you of one that was fifteen years old, and was disfigured with the Small-pox; and the other tells you of Thomas Vaughan, who died of the Small-pox when he was ten years of Age.

You are therefore to consider the Evidence on both sides. The Question principally is, Whether the Prisoner be a Subject of the King of England? If you are satisfied that he is not an English Subject, but a French man, then he is not Guilty of this High-Treason; but if you are satisfied, by the series of the whole Evidence, that he is an Irish man, and that he had a Commission from the French King, and that he cruized upon our English Coasts, in Company with the King's Enemies, with a design to take, burn, or destroy any of the King's or his Subjects Ships, you are to find him Guilty of High-Treason whereof he stands Indicted, otherwise you are to acquit him.

Cl. of. Arr.

Swear an Officer to keep the Jury; which was done. After a short stay, the Jury returned into Court, and gave in their Verdict.

Cl. of. Arr.

Gentlemen, answer to your Names. E. Leeds.

Mr. Leeds.

Here.

Cryer.

Vous avez, and so of the rest.

Cl. of. Arr.

Gentlemen, Are you all agreed of your Verdict?

Jury.

Yes.

Cl. of. Arr.

Who shall say for you?

Jury.

Our Foreman.

Cl. of. Arr.

Thomas Vaughan, hold up thy Hand. (Which he did.) Look upon the Prisoner. How say you, Is he Guilty of the High-Treason whereof he stands Indicted, or not Guilty?

Foreman.

Guilty.

Cl. of. Arr.

What Goods or Chattels, Lands or Tenements had he at the time of the Treason committed.

Foreman.

None to our knowledge.

Cl. of. Arr.

Then hearken to your Verdict as the Court hath Recorded it: You say that Thomas Vaughan is Guilty of the High-Treason whereof he stands

Indicted, but that he had no Goods or Chattels, Lands or Tenements at the time of the High-Treason committed, or at any time since to your know∣ledge, and so you say all.

Jury.

Yes.

Tho. Vaughan.

My Lord, let me beg one Favour, that I may be used like a Gentleman, that I may be sent to a Chamber, and not to a Dungeon, and that my Friends may come to me.

L. C. J. Holt.

Captain Vaughan, they say you once made an escape, and therefore the Keeper must keep you with Humanity, but with all Security.

Tho. Vaughan.

I desire that I may be kept like a Christian.

L. C. J. Holt.

The Keeper must do his Duty.

Cl. of Arr.

Thomas Vaughan, hold up thy Hand, (which he did) Thou standest Convicted of High-Treason against our Sovereign Lord the King: What hast thou to say for thy self why Judgment should not pass against thee to dye according to the Law?

Tho. Vaughan.

I am altogether a Stranger to the Law, my Lord, I refer my self to my Council.

L. C. J. Holt.

Well, then you refer your self to your Council. You have had a fair Tryal, and have no reason to complain of it: If your Council have any thing to say in arrest of Judgment they shall be heard.

Mr. Phipps.

My Lord, the Indictment has two sorts of Treason laid in it; the one for adhering to the King's Enemies, the other levying of War; and, with submission, I take it that the first is not well laid, for it says that the Pri∣soner did adhere to the King's Enemies, but says not against the King. Now every body knows that the French King is in War, not only with England but Holland, and Spain, and the Emperour: But if a Man joyn with the French against any of them, he adheres to the King's Enemies, and yet it cannot be said to be against the King; therefore they ought to have laid it that he did adhere to the King's Enemies contra Dominum Regem; it must be aiding and com∣forting them against the King that makes the Treason.

L. C. J. Holt.

It does say so.

Mr. Phipps.

No, my Lord, it only says that Captain Vaughan did adhere to the King's Enemies, and does not say it was against the King; and if that be Treason, is what we desire to know.

L. C. J. Holt.

If he adhere to the King's Enemies, it must be against the King, though he assist them only against the King's Allies, for thereby the King's Enemies may be more encouraged and enabled to do Mischief or Damage to the King: Suppose you assist the French King against the King of Spain, that is now in Allyance and League with the King of England, and the French in actual Enmity, that is to adhere to the King's Enemies against the King.

Mr. Phipps.

Would that be Treason my Lord?

L. C. J. Holt

Yes certainly, though that is not a point in this Case, and so not necessary to be determined now; for the Act of Parliament of 25 of E.3. defines Treason in adhering to the King's Enemies, and expresses the Overt-Act in giving them aid or comfort; it is sufficient to alledge the Treason in the Words of the Statute, adhering to the King's Enemies. An Overt-Act al∣ledged, shews it to be against the King; and in pursuance of that adherence he did so and so; he was a Captain and Soldier in the Ship, did join with the King's Enemies, &c. with a design to destroy the King's and his Subjects Ships; surely that is most manifest an adherence to the King's Enemies against the King.

Mr. Phipps.

The Overt-Act, if it were alledged sufficiently, would not help it; for if there can be an adhering to the King's Enemies that is not Treason,

they ought to alledge such adhering as is Treason; and if the Treason it self is not well alledged, the Overt-Act will not help it.

L. C. J. Holt.

There is an Overt-Act to shew it to be against the King. It is said all along, he being in this Vessel Clancarty, cum diversis Subditis.

Mr. Phipps

But then that Overt-Act is not well alledged, for 'tis said only he went a cruizing; whereas they ought to have alledged that he did commit some Acts of Hostility, and attempted to take some of the King's Ships; for cruizing alone cannot be an Overt-Act, for he might be cruizing to secure the French Merchant Ships from being taken, or for many other purposes, which will not be an Over-Act of Treason.

L. C. J. Holt.

I beg your Pardon. Suppose the French King, with Forces, should come to Dunkirk with a design to invade England, if any one should send him Victuals, or give him Intelligence, or by any other way contribute to their Assistance, it would be High-Treason in adhering to the King's Enemies.

Mr. Phipps.

If the French King had designed an Invasion upon England, and Captain Vaughan had assisted in his Vessel in forwarding the Invasion, it would have been Treason; but here is nothing mentioned but cruizing.

L. C. J. Holt.

Cruizing about the Coast of England with a design to destroy the King's Ship.

Mr. Phipps.

That design ought to be made appear by some Act of Ho∣stility, for in the Case of Burton and Bradshaw, and others, which my Lord Coke cites, the agreeing to rise and pull down inclo••••res, and meeting and pro∣viding Arms for that purpose, is agreed not to be levying of War; and they were indicted for Conspiring to levy War upon the Statute of Queen Eliz. And in this Case, here being only a Conspiring, and nothing attempted, it can be no more Treason than it was in that Case.

L. C. J. Holt.

When Men form themselves into a Body, and march Rank and File with Weapons offensive and defensive, this is levying of War with open Force, if the design be Publick. Do you think when a Ship is armed with Guns, &c. doth appear on the Coast, watching an opportunity to burn the King's Ships in the Harbour, and their design be known, and one goes to them, and aids and assists them; That this is not an adhering to the King's Ene∣mies? Here are two Indictments, one for levying War, and the other for ad∣hering to the King's Enemies; but the adhering to the King's Enemies is prin∣ncipally insisted on, and there must be an actual War proved upon the Person Indicted in the one, yet need not be proved in the other Case.

Mr. Phipps.

The same certainly is necessary in one as well as the other; for barely adhering to the King's Enemies is not Treason, but there must be an actual Aiding and Comforting them; and a meer intention to assist the King's Enemies, is not an adherence within the Statute of 25 Ed. 3.

L. C. J. Holt.

If there be not High-Treason in the Act alledged, that is, if it do not make out an adherence to the King's Enemies, than your Objection would hold good.

Mr. Phipps.

The going to cruize, my Lord, does not make out an adhe∣rence to the King's Enemies; for his cruizing may be for other purposes as well as to take the King's Ships, and your Lordship will intend the best in favour of Life.

Mr. Whitaker.

To burn the King's Ships.

L. C. J. Treby.

The Indictment is laid for Adhering to, and Comforting and Aiding the King's Enemies. You would take that to be capable to be con∣strued adhereing to the King's Enemies in other respects; but I take it to be a reasonable Construction of the Indictment, to be adhering to the King's Ene∣mies in their Enmity. What is the Duty of every Subject? It is to sight with,

and subdue, and weaken the King's Enemies: And contrary to this, if he Con∣federate with, and Strengthen the King's Enemies, he expresly contradicts this Duty of his Allegiance, and is Guilty of this Treason of adhering to them. But then you say here is no aiding, unless there were something done, some Act of Hostility. Now here is going a Board with an intention to do such Acts; And is not that Comforting and Aiding? Certainly it is: Is not the French King comforted and aided, when he has got so many English Subjects to go a cruizing upon our Ships? Suppose they Man his whole Fleet, or a considera∣ble part of it; Is not that aiding? If they go and enter themselves into a Regi∣ment, List themselves and March, though they do not come to a Battel, this is helping and encouraging; such things give the Enemy Heart and Courage to go on with the War; or else, it may be, the French King would come to good Terms of Peace. It is certainly Aiding and Comforting of them, to go and ac∣cept a Commission, and enter into their Ships of War, and List themselves, and go out in order to destroy their Fellow-Subjects, and ruine the King's Ships; these are Actings of an Hostile nature. And it this be not adhering, &c. it may as well be said, That if the same Persons had made an attack upon our Ships and miscarried in it, that had not been so neither, because that in an un∣prosperous attempt there is nothing done that gives aid or comfort to the Ene∣my. And after this kind of Reasoning they will not be Guilty, till they have Success; and if they have Success enough, it will be too late to question them.

Mr. Phipps.

Intending to levy War is not Treason, unless a War be actual∣ly levied.

L. C. J. Treby.

Is it not actual levying of War, if they actually provide Arms, and levy Men, and in a Warlike manner set out and cruize, and come with a design to destroy our Ships?

Mr. Phipps.

It would not be an actual levying of War, unless they commit some Act of Hostility.

L. C. J. Holt.

Yes, indeed, the going on Board, and being in a posture to attack the King's Ships. As to the fault you find with the Indictment, there is a fault, but not in point of Law; they might have laid it more generally, so as to have given more Evidence.

Mr. Bar. Powis.

However it is well enough.

But for you to say, because they did not actually fight, it is not a levying of War; Is it not plain what they did intend? That they came with that inten∣tion, that they came in that Posture, that they came Armed, and had Guns, and Blunderbusies, and surrounded the Ship twice, they came with an armed Force; that is a strong Evidence of the design.

L. C. J. Holt.

You would make no Act to be aiding and assisting but fighting.

Mr. Phipps.

Then next I am in your Lordships Judgment, whether the Sta∣tute of 28 of Hen. the 8th. by which Captain Vaughan is tried, is in force, and be not repealed by the first and second of Philip and Mary, which saith, that all Tryals, in Cases of Treason, shall be at the Common-Law. Now by the Com∣mon-Law before the Statute 28 Hen. 8. Treason done upon the Sea, was tried before the Admiral, or his Lieutenant, and my Lord Coke in the 12 Rep. in the Case of the Admiralty, saith the Jurisdiction of the Admiralty is by the Com∣mon-Law. By the Statute 33 Hen. 8. Treason confessed before three of the Privy-Council might be tried in a foreign County, but that Statute is repealed by the Statute 1 and 2 of Philip and Mary; for by the Statute 33 Hen. 8. c.4. Treason committed in trales, might be tried in what County the King would assign; but since the Statute of Philip and Mary, it must be in the proper County; so that we are in your Lordship's Judgment, whether the Statute of

28 Hen. 8. be in force; and whether, since the Statute of 1 and 2 Philip and Mary, Treasons done upon the Sea, ought not to be tried before the Admirals, or anciently at the Common-Law?

L. C. J. Holt.

This is Treason by the Common Law, and the Trial is by the Method of the Common-Law.

Mr. Phipps.

'Tis true that my Lord Coke, and other Authorities say, That the Statute 35 Hen. 8. for trying Treasons committed beyond Sea, is not re∣pealed by the Statute of 1 and 2 Philip and Mary, but they do not say that this Statute is not repealed by the Statute of Philip and Mary; and the Books being silent in this, is the reason why I propose this Question for your Lordship's judgment.

L. C. J. Holt.

It is no more a Question than the Tryals of foreign Trea∣son, and then the Determination of the Tryals upon the 35th. determines the Question upon this.

Dr. Oldys.

We must have two Witnesses by the Rules of the Civil-Law, an extrajudicial saying of a Party may be retracted by them at any time, that is the Civil-Law, and so there can be out one Witness.

L. C. J. Holt.

That is not the Law of England.

Dr. Oldys.

I do humbly conceive that the Civil-Law is not taken away in this Case; for though the Statute prescribes the form of Proceedings accord∣ing to the Rules of the Common-Law, yet as to the Crimes and Proofs the Ci∣vil-Law is still in force, and then the Party may retract his Confession in Judg∣ment, much more any extrajudicial saying.

Mr. Whitaker.

You are arraigning the Verdict.

L. C. J. Holt.

That you should have taken notice of before the Verdict was given. But we think there is no danger in hearing this Objection, because it is so easily answered. How many Witnesses were to the Confession?

Sir Ch. Hedges.

We are not in a Court that proceeds according to the strict Rules of the Civil-Law; but if we were, that Law is not so absurd as to al∣low that a Party may retract his Confession at any time, so as to make it have no effect.

Dr. Oldys.

There must be two Witnesses at any time.

Sir Ch. Hedges.

So there are here to the Confession; but you mistake if you think that every particular is to be proved strictly as the Civil Law re∣quires, for the end of the Statute which directs the Proceedings of this Court was to facilitate the Method of making Proofs, that being sound difficult by the course of the Civil-Law; and therefore was that Statute made, as plainly ap∣pears, by the Preamble thereof.

Dr. Oldys.

There is a new Statute that revives that Statute again, and that requires two Witnesses; whereby 'tis reduced to the Rules of the Civil-Law again.

L. C. J. Holt.

Two Witnesses there must be; but then consider it is not necessary to have two to every individual Overt-Act: For suppose there be two Overt-Act laid in the Indictments, for one species of Treason, Compas∣sing and Imagining the Death of the King; if there be one Witness that he bought a Dagger, and said he would kill the King, and he is seen, it may be, going to the King's Bedchamber with the Dagger; another Witness says, he said he would kill the King with a Pistol, and bought a Pistol, and he stood wait∣ing to kill the King as he came by; that is another Overt-Act of the same Treason. If one Witness prove one, and another Witness prove the other, this is sufficient Proof with us.

Dr. Oldys.

It is another Question, Whether he be a Subject?

L. C. J. Holt.

That is not an Overt-Act; if there be one Witness to that, it is enough, there needs not two Witnesses to prove him a Subject; but upon the Tryal there were above two Witnesses to prove it: There was Crittenden, the Marshal of Dover, Cray and Rivet. I must tell you, as to the Doctrine of the Civil-Law, it is not universally received in all Countries; it is received in several Countries as they find it Convenient, and not as Obligatory in it self.

Dr. Oldys.

Yes, in all places, as to Proof; for 'tis the Law of God and Na∣tions, Ex ore duorum, vel trium, &c. And one Witness is no Witness.

Sir Ch. Hedges.

Two Witnesses may be necessary to convict a Man of any capital Crime, but then it doth not follow that there must be two Witnesses to prove every particular Fact and Circumstance. In this point, touching the Place of the Nativity of Thomas Vaughan, Was there not sufficient in his own Confession, together with the other Proofs on the King's behalf, to throw the burden of Proof upon the Prisoner? You your selves seem to have been of that Opinion; you undertook to prove it, and 'tis you that have failed in that particular.

L. C. J. Holt.

Our Tryals by Juries are of such Consideration in our Law, that we allow their Determination to be the best, and most advantagious to the Subject, and therefore less Evidence is required than by the Civil-Law. So said Fortescue in his Commendation of the Laws of England.

Dr. Oldys.

Because the Jury are the Witnesses in reality, according to the Laws of England, being presumed to be ex vicineto; but when it is on the High and Open Seas, they are not then presumed to be ex vicineto, and so must be instructed according to the Rules of the Civil-Law by Witnesses.

Mr. Bar. Powis.

This is not a Tryal by the Civil-Law; for that Statute was made to avoid the Niceties of your Law.

Mr. J. Eyers.

He is tryed with like Evidence, as in other Cases of High-Treason.

Dr. Oldys.

No, the late Act requires two Witnesses:

Cl. of Arr.

Make Proclamation of silence.

Cryer.

All manner of Persons are Commanded to keep silence, while Judg∣ment is giving, upon pain of Imprisonment.

And then Judgment was given, according as the Law directs in Cases of High-Treason