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 Treason 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 consists 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 express'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. Compassing 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 Overt Act concerning the 2 d. otherwise than in the words of the Statute 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 connected 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 adherance 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 direct 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 Indictment they cannot find him Guilty by the proof of any other Overt-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 Indictment 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 Indictment you may give in Evidence an acting in pursuance of a Consult that is an Evidence that they agreed to do it tho' that doing 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-Overt-Act that he did voluntarily put himself on Board this Vessel of the French King the Loyal Clancarty 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-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 Member of the overt-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 during 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 design 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
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 Naviculam vocat The Loyal Clancarty cum quam plurimis subditis Gallicis Inimicis 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 Subjects 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 Commission 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 submission 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. Vaughan 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 Vaughan 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 Pinnace 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 Harbour 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
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 comforting 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 alledged shews it to be against the King and in pursuance of that adherence he did so and so he was a Captain and Soldier in the Ship did join with the King's Enemies c. with a design to destroy the King's and his Subjects Ships surely that is most 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 't is 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-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 Hostility for in the Case of Burton and Bradshaw and others which my Lord Coke cites the agreeing to rise and pull down incloâ—â—res and meeting and providing Arms for that purpose is agreed not to be levying of War and they were indicted for Conspiring to levy War upon the Statute of Queen 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 Enemies Here are two Indictments one for levying War and the other for adhering to the King's Enemies but the adhering to the King's Enemies is prinncipally 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 adherence 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 construed 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 Enemies 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 Confederate 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 considerable part of it Is not that aiding If they go and enter themselves into a Regiment List themselves and March though they do not come to a 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
Nations Ex ore duorum vel trium c. And one Witness is no Witness Sir Ch. Hedges Two Witnesses may be necessary to convict a Man of any capital Crime but then it doth not follow that there must be two Witnesses to prove every particular Fact and Circumstance In this point touching the Place of 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 't is 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 Judgment is giving upon pain of Imprisonment And then Judgment was given according as the Law directs in Cases of High-Treason An Abstract of the Tryal of John Murphey for High-Treason c. John Murphey being Indicted for High-Treason the Twelve Gentlemen following were sworn upon the Jury for his Tryal Nathaniel Long John Eure John Child Thomas Clarke Thomas Batemâ—n Henry Trye John Morewood Nicholas Greenway Samuel Jackson John Hall John Collumn Roger Mott. Then Mr. Whitaker one of the King's Councel opened the Indictment after which Dr. Nuton one of the King's Advocates spoke as follows JOhn Murphey of Cork in the Kingdom of Ireland born a Subject of this Kingdom and therefore owing Allegiance and Service to his King and Country stands Indicted for Adhering to Aiding and Comforting His Majesties Enemies and likewise for levying of War in Assisting the French King the Greatest the most Inveterate and the most Dangerous Enemy of our King our Nation our Religion and the common Liberty of Europe in an Unjust Cruel and long War against his King and Country that King who Heads the League against the common Oppressor of Christendom and the Country whose Forces and Reputation support that League and this with a design only to rob and spoil which is the Meanest part of the War but withal the most Mischievous to the Innocent and Trading Subjects being on Board a French Privateer called The Nostre Dame de bon Novelle and Fighting in her for though the coming with such a design and the being in a Vessel under a French Commission was Criminal and must have met with since it deserved the same Punishment yet this was put in Execution too by the the Taking the Joseph and Isaac of London on the Twentieth of March last to the Terrour and the Impoverishment of many of his Fellow-Subjects which justifies their Complaint and this publick Prosecution of the State for the bringing him to Justice And then the Witnesses for the King were called and being Examined together with several others on the behalf of the Prisoner it appeared to the Jury that the said Murphey being an Irish Man and his Majesties Subject did Traiterously adhere unto and assist the French King in a French Ship called The Nostre Dame de bon Novelle and in Taking and Securing therewith a Ship called The Joseph and Isaac of London belonging to English Subjects And thereupon he was found Guilty and received Sentence of Death as in Cases of High-Treason THE COMMISSION OF Capt. Tho. Vaughan Which he had by Order of the FRENCH KING LEWIS ALEXANDER of Bourbon Earl of Toulouse Duke of Amville Commander of the King's Orders Governor and Lieutenant-General for His Majesty in the Province of Britany Peer and Admiral of France To all those who shall see these present Letters Greeting The King having Declared War against His Catholick Majesty the Favourers of the of the Crowns of England and Scotland and the Estates of the United Provinces for the Reasons contained in the Declarations Published by His Majesty throughout the Extent of His Kingdom Countries Lands and Lordships under His Obedience and His Majesty having Commanded Us to take care that the said Declarations be observed in what doth depend upon the Power and Authority which His Majesty hath been pleased to commit to Our said Charge of Admiral We have according to the express Orders of His said Majesty given Leave Power and Permission to THOMAS VAUGHAN living at Bulloigne to arm and set forth in Warlike Manner a Bark called The Loyal Clencarty of the Burthen of Ten Tuns or thereabouts which is at present in the Port of Bulloigne with such Number of Men Cannons Bullets Powder Shot and other Ammunitions of War and Provisions which are Necessary to set her out to Sea in a Condition to sail and cruize upon the Pirates and others without Commission as also upon the Subjects of His Catholick Majesty the Estates of the United Provinces the Favourers of the of the Crowns of England and Scotland and other Enemies of this Estate in what Places soever he can meet them whether it be upon the Coasts of their Country in their Ports or Rivers also upon their Shores or Places where the said Captain THOMAS VAUGHAN shall think fit to land to annoy the said Enemies and there to make use of all the Means and Arts permitted and used by the Laws of War to take them and bring them Prisoners with their Ships Arms and other Things in their Possession Provided the said VAUGHAN shall keep and cause those of his Crew to keep the Maritime Orders and that he shall carry during his Voyage the Flag and Ensign of the King's Arms and of Ours and cause the present Commission to be Registred in the Registry of the nearest Admiralty where he shall be Equipped and leave there a Roll Signed and Certified by him containing the Names and Surnames the Births and Residence of his Crew and make his return to the said Place or some other Port of France and make his Report before the Officers of the Admiralty and no others of what shall have happened during his Voyage and give Us Advice thereof and send his said Report to the Secretary-General of the Marine with the Papers justifying the same that We may give such Orders thereupon as may be Necessary And We pray and require