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called the Charles the Second, was a piracy; | having lain near together at the Groyne, there and for that particular fact these prisoners are now charged. The matter you are now to enquire after, is, Whether all the prisoners were guilty of this piracy, or which of them.

As for E. Forseith, Bishop, and Lewis, it hath appeared to you, that they, with others, were aboard the ship James; and that there was a report spread about of a plot against the captain of the Charles the Second, and a design to carry that ship away. To prevent which, there were some of these men sent out in a boat, by the captain of the James, to this ship, to assist captain Gibson; but instead of preventing this piracy, they staid behind, and went along with these men that carried away the ship.

As to W. May and J. Sparkes, that were of this ship's crew, they continued on board, and were parties in all those piracies.

There was a consult, it seems, by some particular persons, of which Every was the ringleader, how to effect this design; capt. Every, as they call him, though he was no captain, but was under the command of capt. Gibson, that had the conduct of this ship.

It is true, it is not proved to you that these men were at that consult; for, it seems, they were too many, for they were about 160 that remained on board when the ship was carried off.

Now for W. May, Jo. Gravet, second mate, that was aboard, though he had a pistol clapped to him to prevent any resistance, yet had liberty to depart; and upon his going off, discoursed with May, who shook hands with him, and bid him farewel, and remember him to his wife. And therefore it is evident that W. May was under no force to stay; he staid with his good will, and did consent to the piracy. And then another witness is D. Creagh, who says, that May was so zealous in the matter, that he said to him, God damn him, be deserves to be shot through the head.'

Sparkes was on board the ship, and had a designed end, and no compulsion was used towards him, since he had liberty to depart; but the staying behind by the rest, is a great evidence to induce you to believe they were parties in the design; for why else should not they go ashore as well as others, since there doth not appear any restraint upon them to stay, especially when a general word was given, that those who would go on shore should go on the deck, and a boat was ready to carry them off?

They say, they wanted a bucket in the boat, and they gave them one to lave out the water; that is a plain evidence they were willing to be rid of those that were not willing to engage with them; and if they had not approved of the design, they were not hindered from going in the boat. As for those that came from the James, there was no manner of force on them, but they were sent from the captain to assist the captain of the Charles; for those two ships

was some intelligence of such a design in agitation, and these three forsook their own ship; Every declared his design to some: And he told them what shares they should have; and because he was their captain and com mander, he thought himself entitled to a double share.

And then you have heard what was done in the whole progress of this wicked design; every one of these men had their share; even this W. May, though he was sick for some time, and was set ashore at Joanna, and at the ship's return taken in again, yet he had his share of all the prizes. W. Bishop had his share, James Lewis had his share, and John Sparkes had his share; and, says this young man, Philip Middleton, I had my share, which was above an hundred pound, which was thought by them to be a good share for a boy; and Sparkes took him at a disadvantage, and having an opportunity, took it from him.

Now if there be a piracy committed, though contrived but by one man, yet if others do concur in it, they are equally guilty.

Now, though these prisoners tell you, there was a force upon them, it is a mere suggestion, without any manner of evidence; but there is evidence of their consenting and confederating in this wicked enterprize.

Indeed there hath been a trial before, which you have all heard of; for the city and nation have discoursed of it; consider therefore the evidence. You have a great trust reposed in you, for you are not to act arbitrarily, but you are accountable to God Almighty, to whom you are sworn, and to the government for the verdict you give. If you are not satisfied in your consciences that the evidence is sufficient to find these men guilty, in God's name acquit them. But if you are satisfied in the sufficiency of the evidence to convict them, you must find them guilty.

Cl. of Ar. Cryer, swear an officer to keep the jury; which was done, and the jury went out to consider of their verdict. And, in the mean time, the six prisoners were again arraigned upon two several indictments; the one for piratically taking away a Moorish ship, and the other for committing piracy upon two Danish ships. To both which indictments Joseph Dawson pleaded Guilty; the other five pleaded Not Guilty, and put them upon their trials.

little while, returned into court. Then the Jury having been withdrawn a

Foreman. If there be any evidence to prove that John Sparkes consented to the running away of the ship, we desire it may be heard again.

L. C. J. Holt. He was with them at the carrying off the ship, and at the taking of the several prizes, and had his share afterwards. What is consent? Can men otherwise demonstrate their consent, than by their actions?

Juryman. But we understand, my lord, that

he was tried upon his consenting to carry away | the ship.

L. C. J. Holt. What do you mean by consenting? If a ship be carried away with force from the captain, divers piracies are committed with her, one continues aboard and receives a share of the profit of the several piracies; is not that an evidence of consent to the piratical design? Was it not proved that many went out of the ship that were not willing to go on that design? And that was with the leave of the rest that remained.

Just. Eyre. And one stood on the deck, and said with a loud voice, that they that will not go, may have liberty to go ashore.

Mr. Conyers. No man was hindered but the Doctor, being a useful man.

L. C. J. Holt. When a ship is run away with, and people are aboard that ship so run away with, that proves their consent, unless they can produce evidence to the contrary.

Just. Turton. The captain was in his bed sick of a fever at that time, and was not willing to go with them, and they sent him away from them.

Just. Eyre. And every man had his share. Then the Jury consulting together a very little time, agreed on their verdict.

Cl. of Ar. Gentlemen of the jury, answer to
J. Degrave.

your names.

J. Degrave. Here. (And so of the rest.)
Cl. of Ar. Gentlemen, are you all agreed of
your verdict?-Jury. Yes.

Cl. of Ar. Who shall say for you?
Jury. Our foreman.

Cl. of Ar.
E. Forseith, hold up thy hand. (Which he
did.)
Look upon the prisoner; is Edward
Forseith guilty of the piracy and robbery
whereof he stands indicted, or not guilty?
Foreman. Guilty.

Set E. Forseith to the bar.

Cl. of Ar. Look to him, keeper. goods and chattels, &c.

What

Foreman. None that we know of. Cl. of Ar. W. May, hold up thy hand. (Which he did.) Is W. May guilty, &c. or not guilty?-Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. W.
Bishop, hold up thy hand. (Which he did.)
Is W. Bishop guilty, &c. or not guilty?
Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. J.
Lewis, hold up thy hand. (Which he did.)
Is J. Lewis guilty, &c. or not guilty?
Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. J.
Sparkes, hold up thy hand. (Which he did.)
Is J. Sparkes guilty, &c. or not guilty?
Foreman. Guilty.

Cl. of Ar. Look to him, keeper, &c. L. C. J. Holt. Gentlemen, you have done extremely well, and you have done very much to regain the honour of the nation, and the city.

Then the Court adjourned to Friday next the 6th of November, two of the clock in the VOL. XIII.

afternoon, on which day Edward Forseith, &c. were tried upon two other Indictments for se veral piracies.

An Abstract of the Trial of Edward Forseith, James Lewis, William May, William Bishop, John Sparkes, (Joseph Dawson having pleaded Guilty upon his Arraignment) at the Sessions House in the Old Bailey, Friday, November 6, 1696, where were present Sir Charles Hedges, Judge of the High Court of Admiralty, the Lord Chief Justice Holt, the Lord Chief Justice Treby, with several others of his Majesty's Judges and Commissioners.

After several challenges made by the prisoners, of the persons returned upon the Jury, these twelve gentlemen were sworn, VIZ. Roger Mott, John James, Richard Rider, William Hunt, John Hammond, Abraham Hickman, John Watson, Benjamin Hooper, John Hibbert, Richard Chiswell, Daniel Ray, William Hatch.

Then the Clerk read the two Indictments upon which they were tried, viz. one for seizing, robbing, and carrying away two ships belonging to Denmark, on the 30th of August, 1694. The other for that they, on the 28th of September, 1695, in a place 40 leagues distant from Surat, did forcibly and piratically set upon a Moorish ship, and take away her tackle and goods, to a great value.

Then Dr. Newton, one of his Majesty's Advocates, spoke to the Jury as followeth

My Lord, and Gentlemen of the Jury; The with, and which has been opened to you crime the prisoners at the bar stand charged the worst sort of robbery, both in its naupon the indictments, is piracy; which is ture and its effects, since it disturbs the comtions; and if left unpunished, involves them merce and friendship betwixt different nain war and blood: for sovereign powers and nations have no courts of justice afterwards to resort to, as the subjects of princes have, in their own countries, for redress or punishment; but they can only have recourse to arms and war, which how expensive, and how dangerous they are, and what calamities and ruin they carry along with them, no person can be a stranger to. So that those who bring not such criminals to judgment, when it lies in their power, and is their duty to do so, are answer. able, in a great measure, before God and man, for all the fatal consequences of such acquittals, which bring a scandal on the public justice, and are often attended with public calamities. It is not therefore, gentlemen, to be supposed, that wise or honest men, (and there are none who would be thought to be otherwise) who love their country, and wish its peace and prosperity, would be guilty in that kind.-Gentlemen, this piracy was begun in Europe, carried on through Africa, and ended in the remotest Indies; so that, in a manner, all the world is concerned in this trial, and ex

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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 merchan. dize: 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 8001, 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?

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Dawson. I submit myself to the king and the honourable 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.

Cl. of Ar. William Bishop, what have you to 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 crines 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:

That you and every one of you be taken 'from hence to the place from whence you came, and from thence to the place of exe'cution; and that there you, and every one of 'you be hanged by the necks, until you and every one of you be dead and the Lord have mercy upon you.'

:

According to this sentence, Edward Forseith and the rest were executed on Wednesday, November the 25th, 1696, at Execution-Dock, the usual place for the execution of pirates.

393. The Trial of Captain THOMAS VAUGHAN, at the Old-Bailey, for High-Treason on the High Seas: 8 WILLIAM III. A. D. 1696.*

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.

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&c. and were adjourned to this hour, draw near and give your attendance. God save the king.

Then the Grand Jury were called over, and the appearances marked. And witnesses being sworn in court to give evidence to them against Thomas Vaughan, they withdrew to hear the same.

Then the Keeper of Newgate was ordered to bring his prisoner, Thomas Vaughan, to the bar. (Which he did.)

Cl. of Ar. Thomas Vaughan, hold up thy hand. (Which he did.) Thou standest indicted, &c. How sayest thou, Thomas Vaughan, art thou guilty of the high-treason whereof thou standest indicted, or not guilty? Vaughan. Not Guilty.

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Cl. of Ar. Culprit, how wilt thou be tried?
Vaughan. By God and this country.
Cl. of Ar. God send thee a good deliverance.

And then the Court proceeded to the Trial of the Pirates, and gave notice to Mr. Vaughan to prepare for his Trial on Friday next, the 6th of November, 1696.

November 6, 1696.

Cl. of Ar. 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, 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.

Captain Vaughan was not an alien enemy, but being a natural born subject of this realin, 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 qualified 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 present 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 * That the st. 7 W. 3, c. 8, extends to perenemy ceased and determined with the autho-sons indicted under st. 28 H. 8, c. 15, for highrity under which he acted. Captain Vaughan's case as far as it goes draws a line and fairly marks out when that character begins and when it shall end." Per Eyre, Chief Justice in giving judgment in the case of Sparenburgh 7. Bannatyne. 1 Bos, and Pul. Rep.

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 lordship please to order that two men may be brought from the Marshalsea, on the behalf of the prisoner?

treason committed on the high seas, see East's Pleas of the Crow, c. 2. s. 43. Whether corrup, tion 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.

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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 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.

Cl. of Ar. Thomas Vaughan, held 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 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 kingdoni 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

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 grand-moved and seduced by the instigation of the jury, 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 lords 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. e. 2, s. 46, Layer's Case, infra, A. D. 1722.

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; 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, falsły, 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 his subjects; against the duty of his allegiance, the peace of

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

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