pects and demands justice of them, if they are guilty, at your hands.

Then the Witnesses were produced to prove the facts charged upon the prisoners, viz. Jo. Dean, David Creagh, Phil. Middleton, and others; who fully proved against them, That the prisoners, with several other wicked persons not yet taken, did forcibly take away the ship Charles the Second from the lawful commander, captain Gibson, with a piratical design; and in the said ship did afterwards commit several piracies. At the Isle of May they took three English ships. From thence they went to the coast of Guinea; and when some of the natives came on board with their gold, to trade with them, they took away their gold, and carried them away for slaves. And then went to the Isle of Princes and took two Danish ships, and took out what was in them, viz. 40 pound weight of gold dust, and other merchandize; and they offered to restore one of the ships to the master after they had robbed her, but the master said she was insured, and he would not take her again. And afterwards they burnt one of the ships, and carried away the other. Then they went to Bob's Key, at the mouth of the Red Sea, waiting for the Mocha fleet, which one night passed by them unseen; but were informed the next day that they were gone. And then calling a council, they agreed to follow them; and accordingly went after them, and came up with one of them which was about 250 ton, and with small resistance took her, and put some men on board her, and took gold and silver out of her to the value of 30 or 40,000l. with other merchandize: and afterwards met with the ship called the Gunsway, and robbed her likewise of all her furniture, to a very great value. And about a week after, they shared all the prizes they had taken; and some had 1,000l. some had 800l., some 700l. some 500l. every man in the ship his share, as they thought they deserved. And it was particularly proved by the evidence against the prisoners, that they had their shares. [The more particular relation of which is already printed at large in the foregoing Trial.]

When the king's evidence had done, the prisoners were permitted to say what they could in their defence; but the same appearing to be very weak, the lord chief justice Holt summed up the evidence; and the jury going out to consider their verdict, after a short stay, brought them in all Guilty.

Then the Court adjourned to the 10th of November following.

After the Trial of John Murphey was over, the Pirates were brought to the Bar.

Cl. of Ar. Joseph Dawson, you by your own confession are convicted of piracy and robbery what have you to say why sentence of death shall not be passed upon you according to law?

Dawson. I submit myself to the king and the

bonourable bench.

Cl. of Ar. Edward Forseith, what have you to say, &c.

Forseith. I am an innocent man;-and went on to justify himself, &c.

Judge of the Admiralty. You and the rest of the prisoners at the bar have had a very fair trial, and been fully heard upon your defence; but the jury, your countrymen, upon whom you put yourselves to be tried, have found you guilty: so that the insisting upon your justifi. cation cannot now avail you any thing, the verdict being given; but if you have any thing to offer in arrest of judgment, or can shew any cause why the court should not proceed to give judgment according as the law directs, against persons convicted of piracy, you shall have liberty to speak, and will be heard.

Forseith. I desire to be sent into India to suffer there.

Cl. of Ar. William May, what have you to say, &c.

May. My lord, I being a very sickly man, never acted in all the voyage. I have served my king and country this thirty years, and am very willing to serve the East-India company where they please to command me; and de sire the honourable bench to consider my case, and if I must suffer, I desire to be sent into India to suffer there.

to

Cl. of Ar. William Bishop, what have you say, &c.

Bishop. I was forced away; and when I went, was but 18 years old, and am now but 21, and desire mercy of the king and the court.

Lewis. I am an ignorant person, and leave myself to the king's mercy.

Sparkes. I leave myself to the king's mercy, and to the honourable court.

Judge of the Admiralty. Joseph Dawson, you stand convicted upon four indictments, by your own confession, for piracy and robbery. And you, Edward Forseith, William May, William Bishop, James Lewis and John Sparkes, having put yourselves upon your trials according to the customs and laws of your own country, have been found guilty upon three several indictments, for the same detestable crimes committed upon the ships and goods of Indians, of Danes, and your own fellow-subjects. The law for the heinousness of your crime hath appointed a severe punishment, by an ignominious death and the Judgment which the law awards, is this:

:

THE Court being sat, at which were present, sir Charles Hedges, judge of the high court of admiralty, the lord chief justice Holt, the lord chief justice Treby, the lord chief baron Ward, Mr. Justice Turton, and others of his majesty's commissioners; the court proceeded on this

manner.

Cl. of Ar. Make proclamation.

Cryer. O yes, O yes, O yes. All manner of persons that have any thing more to do,

See 2 Salk. 634, and Holt, 689. See also East's Pl. Cr. c. 2. s. 40. 43.

"Captain Vaughan was not an alien enemy, but being a natural born subject of this realm, he became a traitor; for that he was put in prison, for that he answered, and with his life. But it was for that act of hostility merely. With regard to his character of a subject he remained till the moment of his execution, as if that act had never been committed. There is very little light to be procured from our books, to assist us in our inquiry, how far a neutral joining in an act of hostility is to be considered as having acquired the character of alien enemy. The subject was indirectly discussed in the case of captain Vaughan, to which I have alluded. He was charged in the indictment with adhering to the king's enemies by cruising cum subditis Gallicis; the fact was that many of his crew were not natural born subjects of the French king, but Hollanders. It was made a question whether the Hollanders should be called subditi Gallici,' and though the point was not authoritatively decided because some of the crew were certainly French, which was sufficient to support the indictment, yet it was held by Holt, C. J. and agreed to by the rest of the court, that the Hollanders by accepting a commission from the French king became subditi Gallici,' and so remained during the continuance of their service in a state of qualitied subjection arising out of the service and determining with it. This, had it been the very point in judgment, would have gone a great way towards deciding the preseat question. The commission under which the plaintiff being a German acted was put an end to by the capture of the frigate, in which he was. After that time he had no opportunity of continuing in the service of the state of Holland, and his temporary character of alien enemy ceased and determined with the authority under which he acted. Captain Vaughan's case as far as it goes draws a line and fairly marks ont when that character begins and when it shall end." Per Eyre, Chief Justice in giving judgment in the case of Sparenburgh v. Bannatyne. 1 Bos. and Pul. Rep.

November 6, 1696.

Cl. of Ar. Cryer, make proclamation. Cryer. O yes, 0 yes, 0 yes. All manner of persons that have any thing more to do at this sessions of Oyer and Terminer, adjourned over to this day, draw near and give your at tendance. And you sheriffs of the city of London, return the precepts to you directed, upon pain and peril which will fall thereupon. Then the Under-Sheriff returned the Precepts. Cl. of Ar. Make proclamation.

Cryer. O yes. You good men of the city of London, summoned to appear 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 called over, and the appearances of those that answered recorded, and the defaulters were again called over.

Mr. Phipps. Will your fordship please to order that two men may be brought from the Marshalsea, on the behalf of the prisoner?

*That the st. 7 W. 3, c. 8, extends to persons indicted under st. 28 H. 8, c. 15, for hightreason committed on the high seas, see East's Pleas of the Crown, c. 2. s. 43. Whether corruption of blood is wrought by judgment of treason committed on the high seas, see East as above, and Foster's Crown Cases, &c. there cited, pp.

222. 226. 1 H. P. C. c. 27. Salk. 85!

L. C. J. Holt. You shall have an order. Then the court went on the trial of the Six Pirates ;* and after the trial was over, Thomas Vaughan was called to the bar.

Vaughan. My lord, my irons are very uneasy to me, I desire 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.t

Mr. Phipps. I thought you had allowed it, my lord, in former cases.

L. C. J. No, we did not allow it as of right due to the prisoner; the exceptions should have been made before the plea. You were indulged in being heard at first in the cases of Rookwood, Cranburne, and Lowick but it was not the intent of the act to alter the method of the proceeding, and so upon consideration hath it been determined. 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 judgment, if it be material.

Cl. of Ar. Thomas Vaughan, those men that you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, upon trial of life and death; if therefore you 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 desired to be excused, because he was on the grand-jury; therefore it seems there are some returned upon this jury that were on the grandjury, which I think ought not to be.

L. C. J. Challenge them then.
Mr. Phipps. We do not know the men.

Then the Pannel was called over, and a great many challenges made, and the twelve men that were sworn, were these: Edward Leeds, Nath. Green, Hen. Sherbrook, J. Sherbrook, T. Emms, Peter Parker, Caleb Hook, Joceline Roberts, Tho. Parker, Peter Gray, Roger Poston, Woolley.

Cl. of Arr. Cryer, make proclamation. Cryer. O yes. If any one can inform my fords the king's justices, and 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 bar, 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.

*See the preceding Case.

East's Pl. Cr. c. 2, s. 46. Layer's Case, infra, A. D. 1722.

Cl. of Ar. Thomas Vaughan, hold up thy hand. (Which he did.) You that are sworn, look upon the prisoner, and hearken to bis 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 W. 8, 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 aforesaid, the said Lewis the 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 war, 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 fifteen persons, in a warlike manner, to take and destroy the ships, goods, and monies 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 king. dom of Ireland, mariner, 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 cor dial 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; of July, in the said 7th year of the king being a the said Tho. Vaughan, on the said 8th day soldier a-board the ship of war, 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 traitorously 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, falsly, and traitorously sailed a cruising to several maritime places within the jurisdiction aforesaid, by force and arms to take the ships, goods, and money of our said lord the king, and bis subjects; against the duty of his allegiance, the peace of

*East's Pl. Cr. c. 2, s. 54.

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 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 the gentlemen of the jury, the prisoner at the bar, 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 warlike 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 traitor, did list himself aboard this ship; and on the high-seas, about eleven leagues from Deal, did traitorously aid the king's enenties to take the king's ships. This is said to be against the duty of his allegiance, and the peace of our sovereign lord the king, his crown and dignity. He stands further indicted, for that he, the said Thomas

Le Loyal Clencarty,' adiunc et ibidem existen' ad quamplur' locos marititnos in eadem navicul' armat', vocat' Le Loyal Clencarty,' in exploratione (Anglice cruising) ea intentione, ad prædand' naves, bon', catal!' et denar' ejusdem Dom' Regis, et subditor' suor' super alto mari præed', ac infra jurisdiction' præd', vi et armis, &c. malitiose, nequissime, et proditorie navigavit, contra ligeanc' suæ debitum, contra pacem dicti Dom' Regis nunc, coron' et dignitat' suas, &c. necnon contra formam statut' in hujusmodi casu edit' et provis', &c.

66

Et jur' præd', pro dicto Dom' Rege super sacram suum præd' ulterius præsent', quod præd' T. Vaughan, ut falsus proditor contra dict' Dom' Regem nunc Angl', &c. suprem' Dom' suum ulterius machinans, practicans, et tota vi sua intendens pacem et communem tranquillitat' hajus regni Ang!' perturbare, et guerram et rebellion' contra dict' Dom' Regem super alto mari præd', ac infra jurisdiction' admiralita Angl' suscitare, movere, et procurare, et dict' Dom' Regem a titulo, honore, & regali nomine, coron' imperial' regni sui Ang', & dominior' suor' super alto mari præd' deponere & deprivare, & stragem miserabilem subditor' ejusdem Dom' Regis Dune hujus regni sui Angl' super alto mari, ac infra jurisdiction' admiral' Ang' præed' navigan', causare & procurare, præd' 8. die Julii, anno regni dicti Dom' Regis nunc 7. suprad', super alto mari, circa 14 leucas a Deal distante, ac infra domninium coron' Angl', & infra jurisdiction' admiralitat' Angl' falso, malitiose, diabolice, & proditorie, vi & armis, &c. cum quamplur' al' falsis rebellib' & proditorib', jur' præd' ignot', guerram contra dict' Dom' Regem nunc pa

Vaughan, with several other false traitors, 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 alle giance, and the peace of our sovereign 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, as 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, arined himself in a military way, to murder and destroy his fellow-subjects, and as much as in him lay, to ruin his native country, by ruining the trade and traffic, which is the great support and riches of the nation. And that this crime might be consummate, he, with his accomplices, has done what in him lay, to dethrone and dispossess bis sacred majesty ; as well knowing 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 ene my and traitor to his own country; and not ravit, ordinavit, levavit, & gessit ; & quod idem Thomas Vaughan, in executione & performa tioue guerra & proditionis suæ præed' adtunc et ibidem, scil' præd' octavo die Julii, anno 7 suprad', super alto mari circa 14. leucas a Deal distante, ac infra jurisdiction' admiralitat' Angl' in dicta navicul' armat, vocat' Le Loyal Clencarty,' vi & armis, &c. cum quamplur' aliis falsis rebellib' & proditoribus, jur' præď' ignot' ad numerum 15. personar', modo guer rino armat' & arraiat', viz. tormentis, & al' armis, tam invasivis, quam defensivis, vi & armis, &c. falso, malitiose, & proditorie, adtunc & ibidem congregat' & assemblat' existen', seipsum simil' armat' & arraiat', malitiose, proditor', & aperte assemblavit & conjunxit; & quod præd' T. Vaughan adtunc & ibid' in dicta navicul' armat', vocat' Le Loyal Clencarty,' cura dictis al' falsis rebellibus & proditorib' (sicut præfertur) assemblat' existen', postea, scil' dicto 8. die Julii, anno 7. supradict,' super alto mari præd', ac infra domin' coron' Angliæ, & infra jurisdiction' admiralitat' Angl' præd?, simul cum dictis al' rebell' & proditorib', in navicul' armat' præd', vocat' 'Le Loyal Clencarty,' adtunc & ibidem, ad quamplur' locos maritimos in eadem navicul' armat', vocat' Le Loyal Clencarty,' in exploration' (Angl' cruising) ea intentione ad prædand', spoliand' & asportand' naves, bond', catall', & denar' dicti Dom' Regis, & subdit' snor' super alto mari præd', ac infra jurisdiction' prædict', vi& armis, &c. malitiose, nequissime, & proditorie navigavit, contra ligeanc' suæ debit', contra pacem dicti Dom' Regis nunc, coron' & dignitat' suas, &c. nee. non contra formam statut' in hujusmodi casu edit' & provis', &c."