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A63138 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 Vaughan, Thomas, 1669?-1696, defendant.; Murphy, John, d. 1696. 1697 (1697) Wing T2136; ESTC R5441 51,400 53

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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 Galloway 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 intending 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 afterwards 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 aforesaid 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 practising and with his whole strength intending the common Peace and Tranquility of this Kingdom of England to disturb And War and Rebellion 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 Imperial Crown of his Kingdom of England and Dominions upon the High-Seas to depose and deprive and miserable slaughter of the Subjects of the said Lord the King of this Kingdom of England upon the High-Seas and within the Jurisdiction aforesaid to cause and procure on the said 8th day of July in the said 7th Year of the King upon 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 Rebellion then and there by Force and Arms maliciously wickedly and openly assembled and joined himself with several other false Traytors and Rebels to the Jurors unknown to the Number of Fifteen 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 Trayterously sailed a Cruising to several Maritime places with the aforesaid 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 Dignities 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 Arraignment 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 Guilty you are to enquire what Goods or Chattels Lands or Tenements 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 Gentlemen of the Jury The Prisoner at the Barr Thomas Vaughan stands Indicted for High Treason That whereas on the 9 th 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 Clencarty That the Prisoner at the Bar as a false Traytor did list himself 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 Duty of his Allegiance and the Peace of our Soveraign Lord the King his Crown and Dignity To this Indictment he has pleaded 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 Indictment 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
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-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 inclo●●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