The barge ran aground upon the sandbanks. Her crew abandoned her, but the great longboat sent in pursuit struck the sands in turn. The chase had to be pressed through the shallows: the seamen of the Coventry related that they waded near half a league to lay hands upon the fugitives. Aboard the Loyal Clancarty, they found hand grenades, small arms, and cartridge boxes. They also brought back a captain whose birthplace was to occupy the court almost as stubbornly as the capture itself. Was Thomas Vaughan born in Galway or in Martinique? His answer would determine under what name the law would encompass his service to the King of France.
On the sixth of November 1696, Vaughan was brought to the bar of the Old Bailey, in London, to answer an indictment of high treason. England was then at war with Louis XIV. The indictment set forth that the French king had fitted out a barge of war and that Vaughan, a subject of the Crown, had assumed command of her. He was alleged to have cruised upon the seas to take, burn, and destroy the ships of the King and his subjects. Vaughan pleaded not guilty. He first made complaint of his fetters; the Lord Chief Justice Holt ordered them struck off, that he might stand to his defence with an unfettered mind and body.
Richard Crouch, a mariner of the Coventry, described the taking near the Nore, at the mouth of the Thames. The Clancarty was descried near two small craft lying at anchor. The Coventry bore down upon her; the barge fled, ran fast upon the flats, and her company quit the decks. The English seamen lowered their boats and pursued the men through the shoals, securing some five-and-twenty prisoners. Crouch testified that Vaughan commanded the vessel. He added that the captives had come out of France with an intent to fire the shipping at the Nore—yet he conceded they “understood” this design only after the fact. It was no utterance directly heard from Vaughan’s own lips.
Thomas Noden corroborated the grounding and the pursuit. On board, the boarding party discovered arms, grenades, and cartridge pouches. Certain of the prisoners appeared to him to be Frenchmen. Samuel Oldham was unable to assign them an origin: they were foreigners, he said, but whether French or Dutch he could not tell. Robert Bub deposed that an English pilot had likewise spoken of an intent to burn the ships at Sheerness. In his account, the barge had not engaged the Coventry; she had stood off and run. The prosecution sought to construe this armed cruise as an overt hostile act. The defence laid stress upon the absence of any engagement and the discordance among the depositions.
At the outset of the proceedings, Vaughan prayed that the witnesses might be examined apart, beyond the hearing of one another’s relations. The Court granted this indulgence as an act of favour, while noting he could not demand it as of strict right. The mariners had shared the heat of the chase together; Vaughan desired that they should answer for it each on his own account.
The argument turned likewise upon the limits of legal proof. Edmund Courtney came forward to swear that, prior to this capture, Vaughan had carried off a Custom-house smack to France. Counsel objected that this matter formed no part of the indictment. The court put it aside: where the Crown has set forth the particular overt act of adhering to the King’s enemies, it cannot travel into a distinct and uncharged transaction. A man must be tried upon what is alleged, not upon a broader fabric woven in the course of the hearing.
There remained the prisoner’s nativity. Crouch asserted he had heard him profess himself an Irishman. The Marshal of Dover recollected that Vaughan had desired to be entered under the name of Thomas Vaughan, an Irishman, though he observed that the man was in liquor at the time. The following day, before a justice of the peace, he had declared himself a Frenchman born in Martinique. Witnesses out of Galway swore he was native to that town; one produced a letter wherein Vaughan entreated him not to come over to testify against him. For the Crown, this missive served as proof that the accused stood in dread of evidence establishing his Irish birth.
The defence resisted this interpretation. Several witnesses affirmed they had known Vaughan in Martinique. One swore he had been present at his baptism in his father’s house. Their recollections did not chime in every particular, and the prosecution met them with the testimony from Galway. Counsel urged the cardinal point of law: if Vaughan were an alien born, the treason laid to his charge could not stand. He submitted that words let fall after a night of strong drink could carry no greater weight than a sober examination taken the following day. Yet the trial brought forth no parish register that might definitively close the debate.
The legal controversy extended to the very geography of the charge. The prisoner’s counsel contended that the evidence did not show he was cruising upon the high seas: an intent directed against vessels at Sheerness, they argued, did not amount to an act of war upon the open main. The Crown replied that the ships might well have lain off Sheerness; the Bench accepted this construction. The defence further combated the notion that an armed cruise unattended by combat was in itself an act of hostility. The court ruled to the contrary: that an armed bottom, disposed in a posture to attack English vessels, constituted in law an adherence to the enemy. The judgment rested not upon the discharge of a great gun, but upon the warlike design inferred by the court from the vessel’s armament and station.
Lastly, the defence raised the spectre of another Thomas Vaughan: a man of Galway who had died ten or twelve years before, with whom the prisoner might easily be confounded. Counsel struck likewise at the credit of the prosecution’s witnesses. Thus, beside the captain taken alive upon the shoals, there arose the shadow of a deceased namesake. Yet the letter written to the Galway witness remained in the hands of the Crown, which read therein a guilty design to stifle evidence of identity.
The jury found Vaughan guilty. His counsel moved in arrest of judgment, arguing that the indictment failed to allege with sufficient certainty that the adherence was against the King, and that a cruise was not an actual levying of war. The court overruled these exceptions, holding that the arming, the command, and the presence at sea in warlike array constituted an adherence within the statute. Vaughan was condemned and executed.
The barge had been seized, the arms inventoried, and the company carried ashore. As to Vaughan’s true birth, this record yields neither a production of the register nor an identity disentangled from its namesake: nothing remains but contradictory witnesses, a letter begging a townsman to stay his hand, and a conviction for high treason. The fetters that had been struck from his limbs to allow him a fair defence had opened no path to his deliverance.