Relation of the Prosecution of Nathaniel Fiennes, Trial proceedings · Part (1 of 2)

Relation of the Prosecution of Nathaniel Fiennes · Trial proceedings · Part (1 of 2)

p. 37The ſecond dayes hearing, together with the 3, 4, 5, 6, 7. ſpent wholly in the proofe and defence of the fourth Article, to which moſt of the others in the reply and rejoynder were reduced.

THe three firſt introductive Articles being runne over, the firſt day, the Proſecutors, the next ſeſsion, proceeded to the fourth, where the criminall and capitall charge of the Impeachment began: which the Defendant conſidering, uſed all the Artifices that might be to ſhift off the proofes, if poſsible: To which end, he firſt demurred to the depoſitions taken upon Oath againſt him, both before the Judge Advocate himſelfe, and by Sir William Waller and Col. Carre by Commiſsion from his Excellency; alledging:

Firſt,Object. 1. That no paper depoſition ought to allowed by the Law, in caſes of life and death, but the Witneſſes ought to be all preſent to teſtifie Viva voce, elſe the Teſtimony ought not to be received.

Secondly,Object. 2. That Sir William Waller was his Enemy, and by confederary with the Proſecutors had been the chiefeſt inſtrument of Proſecuting this Impeachment againſt him; to which end he produced one Major Dowet a French man (whom Sir William Waller had diſplaced, and ſo diſguſted) to atteſt, That Master Walkers Reply to Col. Fiennes his Relation, was ſhewed to Sir William and his Lady before it was printed, and that Sir William had ſpoken to his Officers to acquaint Mr Walker, with all ſuch paſſages as they knew concerning Col. Fiennes, touching the ſiege and ſurrender of Briſtoll; Therefore he was neither a fit Commiſsioner nor witneſſe in this cauſe, nor yet any of his Officers under him.

Thirdly,Object. 3. that hee had not joyned with the Proſecutors in Commiſsion, neither had he notice thereof, that ſo he might croſſe-examine the Witneſſes; therefore for theſe reaſons, he deſired, that all our Paper Depoſitions might be ſuppreſſed and not given in evidence againſt him.

To the firſt of theſe objections,Anſw. 4. Mr Prynne returned this anſwer: Firſt, that himſelfe had formerly uſed this kinde of proceeding in the caſe of Col. Eſſex, againſt whom he had not only taken, but printed divers paper teſtimonies in things which might have proved capitall if the proofe had been full. That himſelfe in this very caſe had ſued forth a Commiſsion to examine Witneſſes on his behalf, without our privity, before we took forth any Commiſsion, who did but imitate him therein, and that by the Iudge, Advocates own adviſe, who directed us to this courſe, which hee affirmed to be both Legall and uſuall: That in the Civill-Law (eſpecially in Courts Martiall) tryalls were as uſuall Teſtimoniis, as Teſtibus viva voce: That in the Admirality, (a Civill Law Court) as likewiſe in the Chancery, Star-Chamber and Engliſh Courts, formed after the Civill Law, they proceed uſually by way of Depoſition: That even at the Common Law in ſome caſes, Depoſitions taken before the Coroner, and Examinations upon Oath before the p. 38chiefe Iuſtice, or other Iuſtices, are uſually given in evidence even in capitall crime: That the high Court of Parliament hath upon juſt occaſion allowed of Paper-depoſitions in ſuch caſes: That in all Courts Martiall, both in England and elſewhere, they have been conſtantly allowed, and particularly in the late famous caſe of Tomkins, Chaloner, and other London. Conſpirators, whoſe Examinations were read, and given in as evidence one againſt the other; upon which they were condemned and executed. Beſides, there was both very great reaſon and neceſſity that ſuch Depoſitions ſhould be admitted in this caſe, and in all Martiall proceedings of this nature, becauſe divers of our materiall Witneſſes, being Officers or Souldiers now in actuall ſervice, and diſperſed upon ſeverall occaſions into divers Brigades, and parts of the Kingdome remote from Saint Albans, could not without great danger, diſ-ſervice to the State, inconvenience to themſelves, and exceſſive coſts to us, (who had loſt our eſtates, and proſecuted onelyonly for the publike on our owne expences) be drawn together perſonally to attend this Triall, which had been ſo frequently adjourned, not onelyonly from week to week, but place to place: That we ſeverall times petitioned both the Commons Houſe and his Excellencie, that the Councell appointed for this Tryall might be held at a certaine day and place, within London or Weſtminster, before our Witneſſes were diſperſed, and where we could with leſſe trouble and expence to our ſelves and them, have produced all or moſt of them viva voce; but yet we could not (through the Defendants procurement, as we conceive) obtaine this reaſonable requeſt: Therefore himſelfe being both the cauſe and preſident of theſe our Depoſitions, and of removing the Triall to this place, for our greater incommodation and expence, ought not to take advantage of his owne wrong, againſt a Maxime of Law, the conſtant practice of the Court Martiall, and his owne leading example, which we did but imitate. Which point the Councell (cauſing us to withdraw) did upon ſolemne debate among themſelves clearly over-rule againſt the Defendant, upon the premiſed Reaſons.

To the ſecond Exception,Anſwer 2. concerning Sir William Waller, Mr Prynne moſt ſolemnly proteſted for himſelfe to the Councell, that it was a moſt falſe and malitious ſlander; That neither Sir William Waller, nor his Ladie, nor any other in their behalfe, did ever directly or indirectly excite, adviſe, or encourage him in this proſecution; that the Delinquent himſelf was the onelyonly man who unadviſedly put himſelfe upon this Triall, as appeares moſt evidently to all the World by the cloſe of his printed Relation in the Parliament Houſe, where Pag. 13. he deſires the Houſe of Commons, that they would be pleaſed to let the truth of what he had then affirmed to them (concerning the ſurrender of Briſtol) be examined at a Councell of Warre, that ſo he might be cleared or condemned as they ſhould finde the truth of falſhood of what he had delivered; By his and his Officers Petition to his Excellencie, and his Excellencies Proclamation upon their Petition, poſted up at Westminſter and the Exchange, wherein he ſummoned Mr Walker and Mr Prynne by name, in the moſt publike manner that might be, and after that by private Notes, and ſundry other publike Adjournments, to be his Proſecutors: Which thankleſſe office he was not altogether unwilling to undertake, when thus openly engaged by the Defendant, not out of any private malice to the Delinquent, whom he formerly honoured, and to whom he never bore any particular ſpleen, p. 39having never received the leaſt injury from him; much leſſe out of any degenerous reſpects, inſtrumentally to wrecke the private malice or revenge of any others upon him, (it being below his ſpirit, and moſt averſe to this genius, his conſcience, to be ſubſervient or inſtrumentall to any mans malice or revenge whatſoever,) but meerly out of a reall deſire to doe his Countrey faithfull ſervice, and vindicate the truth of this unworthy ſtate-ruining Action, under which the whole Kingdome now lay languiſhing, from thoſe falſe diſguiſes which the Defendant in ſundry printed Papers had obtruded on the World, to ſalve his owne irreparable diſhonour. The proſecution therefore proceeding thus meerly from himſelfe, as all the premiſes infallibly demonſtrate, he had laid a moſt ſcandalous imputation upon Sir William Waller (a noble well deſerving Gentleman then abſent,) and on himſelf, in the forementioned exception, for which he demanded juſtice againſt him from that honourable Councell, unleſſe he could make good this calumny, for which he was moſt certaine the Defendant had not the leaſt ſhadow of proofe, the teſtimony of Dowet (the ground of this aſperſion) referring not to him, but onelyonly to Mr Walkers Relation, publiſhed long before any Impeachment of, or proſecution againſt the Defendant: which charge Mr Walker himſelfe there preſent, was ready to anſwer as to that particular.

Hereupon Mr Walker informed the Councell, that he acknowledged in the Epiſtle to his Anſwer to the Defendants Relation, that it was but a collection out of the ſeverall reports of divers Gentlemen and Commanders in that ſervice, before and whom Briſtoll was beſieged: which when he had drawn up, having occaſion to goe to Southampton, he left it in the hand of a friend, deſiring him to ſhow it to whomſoever he ſhould think fit, (and eſpecially to thoſe Gentlemen out of whoſe mouths he compiled it) to ſee if he had hit their ſenſe aright; and that this party (as hee was ſince informed) ſhewed it to Sir William Waller. He ſaid further, that the written copy was ſhewed to the Defendant himſelfe, and therefore he doth not wonder if it were ſhewed to Sir William Waller: and that Sir Williams objected ſpeaking to his Officers, onelyonly to declare what they knew touching that buſineſſe, with reference ſimply to his Anſwer, could not be intended either malice, or combination, or proſecution of this impeachment, not then ſo much as though of; nor any prejudice to the truth, ſince no man can know a falſhood, becauſe it is a non-entity, and can be no object of mans knowledge: That therefore this could be no juſt exception to Sir William as a Commiſſioner, the rather, becauſe Colonell Carre (a man indifferent) was joyned with him; much leſſe any legall exception to any Officers or Souldiers teſtimony then under his command, who did but teſtifie what they knew for truth. Beſides, Mr Prynne added, that Colonell Fiennes himſelfe had examined divers of Sir William Wallers Officers by commiſſion, before we examined any of them, and ſome of thoſe whom we examined; and why we ſhould be deprived of the benefit of their Examinations for the Kingdomes advantage, when himſelfe had examined them onelyonly for his private defence, there could be neither reaſon nor equity alledged, it being a meere artifice, to deprive us of our moſt materiall Witneſſes, and to ſuffocate the truth.

To the third,Anſwer 3. of his wanting notice to joine in commiſsion, and croſſe examine our Witneſſes, Mr Prynne anſwered,

p. 401Firſt, that himſelfe had begun the Preſident, in taking forth ſeverall commiſſions to Sir William Wallers, and the Earle of Mancheſters Army, to examine witneſſes there, without our privity or conſent, who neither had any the leaſt notice of the commiſſions to join in them, nor of any the Witneſſes names, till the hearing, nor had not, nor could not croſſe examine them, nor ever yet ſaw their depoſitions: And why our depoſitions, being Proſecutors, ſhould not be admitted as well as his, being not taken ſo publikely before the Iudge Advocate, as moſt of ours were, he ſaw no reaſon.

2Secondly, that we could not enforce Col. Fiennes to croſſe-examine any Witneſſes, or to joine with us in their examination; therefore if he neglected to doe it, or went before us in his commiſſions, as he did, by virtue of which he might have examined all our Witneſſes if he would, before we had taken their teſtimonies againſt him, the default was his, not ours.

3That we left all our depoſitions, and the Witneſſes names with the Iudge Advocate, to whom he oft repaired, and from whom he might have received the catalogue of them, to croſſe examine them, if he pleaſed; which ſince he neglected to doe, after ſo many adjournments, and taking no exceptions till now he came before the Councell, of purpoſe to evade his Triall, and to clude both them, us, the Parliament, and people, whoſe eyes are on the iſſue of this buſineſſe, there was no reaſon to allow theſe frivolous exceptions: All which the Councell, upon ſhort debate, over-ruled againſt the Defendant, reſolving, that the teſtimonies ought to be uſed, unleſſe ſome particular juſt exception could be alledged againſt any of them.

Theſe obſtacles, by which the Defendant though to have ſhifted off his Triall, being removed, Mr Prynne then proceeded to prove the fourth Article, which he did,

1Firſt, by the Defendants owne Anſwer thereunto, wherein he doth confeſſe the whole Article in ſubſtance; yea, more then it chargeth him withall, as namely,

1Firſt, That he never undertook to make good the City or Caſtle, or either of them, againſt the enemy, declaring that he would not, nor could not undertake it: Which is in plaine Engliſh as much as to confeſſe, that he had never any thought or reſolution to hold them out to the utmoſt extremity, as he ought to have done in honour, and duty; but a profeſſed purpoſe to ſurrender them to the enemies, traiterouſly or cowardly, as ſoon almoſt as they came before it.

2Secondly, That ſoone after the enemy entred the Line (with a very inconſiderable number, not above 150 at firſt, and three or foure hundred in all at laſt, as the Witneſſes atteſt) he had ſurrender the Towne and Castle, with all the Priſoners, Cannons, Ammunition, Artillery, Military Proviſions, Magazines, Victuals, and part of the Armes, (all but the Horſe-mens Swords, moſt of which were likewiſe taken from them ere they departed the Towne) before the enemy had taken any of the out-forts about the ſame, or had made the leaſt aſſault or battery upon the walls of the City, or of the Castle, or any Myne or breach into the chiefe Fort thereof, (and that before the Towne had been three whole dayes beſieged, which he denieth not, and therefore granteth by his Anſwer:) which whether it were not a moſt cleare conteſſion and demonſtration of a treacherous p. 41and cowardly ſurrender in the ſuperlative degree, he humbly ſubmitted to the honourable Councels judgement, and the determination of all men endued with common reaſon and yet the Defendant hath the confidence, in the ſame branch of his Anſwer, to deny that he did deliver them up traiterouſly, cowardly, or diſhonourably or contrary to his former promiſes, (to diſpute every inch of the Town, from the Line to the City-gates, and from thence to the Caſtle-walls, which he would defend to the utmoſt, and there lay his bones if he could not keep it, and make his Flag of Truce his Winding-ſheet, proved by**Mr Powell, Col. Stroode, Col. Stephens, Mr Haſſard, Capt. Bagnall. divers Wineſſes,) or contrary to his truſt and dutie: And the impudence to affirme, that he did defend the Towne and Caſtle to the utmoſt point, not onelyonly of dutie, but alſo of honour, that any Souldier could or might have maintained the ſame: Which whether it were not the greateſt Pardox and contradiction, that any Military man in his right ſenſes durſt ever affirm before a Councell of experienced, valiant Commanders, he referred to the reſolution of all there preſent.

Thirdly, he confeſſeth, that though neither any of the Out-works were taken, nor 3the Town wals once battred or aſſaulted, when the enemy entred the Line, yet as things then ſtood (in reference to the Governours knowne valour and fidelity) neither the Forts, nor caſtle, ought to have been kept, to the prejudice of the city and garriſon, (the prejudice of the whole Kingdome, which hath felt the ſmart of it, is cautiouſly here omitted:) but ought to have been ſurrendred together with the city, as they were, by the conſtant practice and policie of War in all places, the prniciples of justice and honeſtie, and the rules of wiſdome and diſcretion (all of this grand ſouldiers owne making,Nota. but none others:) And he further addes in the clauſe of his Anſwer to the eighth Article, That he doth affirme and will juſtifie, that if the castle had been tenable (mark it) yet neither by the conſtant practice and Maximes of War in all places, nor by the Rules of honeſtie and Chriſtianity, he ought to have held the ſame. A riddle, which Mr Prynne profeſſed tranſcended the limits of his underſtanding to enucleate, if no… of all mens elſe, but the Defendants; and a paſſage which carried Treachery and Cowardice engraven with Capitals in its very Front, proclaiming openly to all men, that had the Out-ſorts and caſtle been never ſo ſtrong and tenable againſt the enemy, yet he was ſo far from reſolving to keep them for the Kingdoms and Parliaments ſecurity, that he profeſſeth, he ought not to have held the ſame, neither by the conſtant practice and policie of War, nor Rules of Piety or Chriſtianity (preſcribed him by Dr Ferne, no doubt, in his Reſolving of Conſcience) But ought to have ſurrendred the ſame with the Towne. Certainly this Gentleman was either reſolved to loſe his head when he penned this Anſwer, or elſe intoxicated with the panick feare that ſurpriſed him at Briſtoll, (which hath made his pen and brains to ſtagger ever ſince) elſe he durſt not put in ſuch an Anſwer in writing to this Impeachment.

Fourthly, he ſaith, that this ſurrender of the city, caſtle, forts, with all the Ammunition, 4Cannon, Magazines, Armes, (but Troopers Swords,) Priſoners, Ships, and his very Colours, before any Out-fort taken, or battery made againſt city or caſtle, was upon good and honourable conditions (he certainly meanes ito…ely in reference to Prince Rupert and the Enemies) in reſpect to the eſtate HEE (not the Kingdome) was in: I think he meanes himſelfe was in an ill condition, ſhould the Kings forces have forcibly taken him Priſoner, for that the King had excepted p. 42him out of the Pardon mentioned in his Anſwer to the third Artcle: And therefore out of baſe feare and ſelf-reſpects he would rather redeeme his head, and buy his peace with the voluntary ſurrender of a place of ſuch conſequence to his Majeſty, then hazzard his life in defending it to the utmoſt. And withall he addes, that this ſurrender was for the honour, profit, and beſt advantage of the kingdome, and Parliament, by whom he was intruſted: which when he ſhall be able to demonſtrate, or make the Parliament and Kingdome beleeve, I ſhall profeſſe this honourable Councell may in juſtice acquit him; till then (I hope) you cannot but condemn him, even out of theſe ſeverall paſſages of his own Anſwer, and divers others of this nature, over-tedious to recite.

Secondly,2. from his Anſwer I ſhall deſcend to our proofs, which extend to all the enſuing Articles as well as this: where we proved by the depoſitions of our Witneſſes hereafter printed,

1Firſt, that the Defendant wanted neither men nor Ammunition, nor any manner of proviſion, to defend the City and Caſtle againſt the enemy: Not men, for he had neare 2000 foot and 300 horſe, beſide Voluntiers, to defend the Town; and he might have raiſed at leaſt 6 or 8000 able men more in the City, if he had wanted men, which were as many, or more, as beſieged it. Proved by the depoſitions of Colonell Stevens, Anthonie Gale, Arthur Williams, Able Kelly, Iames Powell, and others.

2Secondly, that they wanted not Ammunition, for we proved there were 60 (nay 70 double) barrels of Powder in the Caſtle, with Match and Bullet proportionable, beſides what was in the City and Forts, and might have been made weekly in the Towne, if held out againſt the enemy, and that by the depoſitions of Mr Edward Bainton, (atteſted afterwards by Captain Buſhell himſelfe to divers of the Councell of War at Saint Albans) Arthur Williams, Ioan Batten, Major Wood, and others: Beſides, himſelfe confeſſeth in his Relation 50 barrels in the Caſtle onelyonly, when ſurrendred, Mr Haſſard depoſeth 50 at leaſt.

3Thirdly, that they had all manner of proviſion both in the City and Caſtle, for three months ſpace or more, the particulars whereof will appeare in the depoſitions of Nicholas Cowling, Able Kelley, Iames Powell, Dorothie Haſſard, Marie Smith, and others: That**See the depoſitions of col. Strode, Col. Stephens, Captain Bagnall, Mr Powell, Mr Cowling, Major Wood, Richard Linpon, Ed Watlin, Mr Haſſard. himſelfe and others deemed the City and Caſtle ſtrong and tenable; that he promiſed to hold the ſame to the utmoſt; to diſpute every inch of ground with the enemy, to retire into the Caſtle when he could hold the City no longer; to lay his bones there rather then yeeld it, and make his Flag of Truce his Winding-ſheet. If then the place were ſo ſtrong and tenable, and he wanted neither men, nor Ammunition, nor Victuals, to defend the City and Caſtle, his ſurrender of them muſt of neceſſity be adjudged Traiterly, or Cowardly at leaſt, if not both: for what elſe but treachery, or cowardice, or both conjoyned, could move him to this ſurrender, in leſſe then three dayes ſiege, before utmoſt extremity, contrary to the Lawes and Ordinances of War, when as he wanted nothing neceſſary for a brave defence.

Secondly,2. we proved that the Towne and Caſtle were not beſieged three whole dayes; for the ſiege it ſelfe began but the Monday morning, and the Articles of ſurrender were agreed on before Wedneſday night, and the ſurrender executed before 9 of clock the Thurſday morning: as Col. Stephens, Col. Strode, Abbe Kelley, and others teſtifie.

p. 43Thirdly,3. that the Enemies were generally repulſed on all quarters of the city, with extraordinary great loſſe of men, neare 700 of them being ſlaine, and as many wounded, with the loſſe only of ſix or eight of our men: and that but 150 of them, or 200 at moſt, entred the Line the Wedneſday morning before ſunne riſing (neare three of the clock) and were ſo afraid of being cut off, that they gave themſelves all for dead men, and might have eaſily been cut off, none of their owne party knowing of their entrie till two houres after they entred, nor ſending them any reliefe: atteſted by Arthur William, Ioſeph Proud, Iames Coles, Marie Smith, Serjeant William Hill, Stephen Radford, Michael Sparks, and others:

Fourthly, that Major Langriſh and his horſe Troops, which had the guard of 4that place, and two other Captains of horſe under him, never once offered to charge the enemy, whom they might eaſily have cut off, but retired into the City without charging them: That Langriſh (very intimate with the Defendant) had been formerly complained of to him, by Lievtenant Clifton, Col. Stephens, and others, for his extraordinary cowardice and negligence, who deſired he might be caſheered to walk the ſtreet, as unfit for any charge, yet the Defendant continued him in his place, and ſet him to guard that very weak place where the enemy was likelieſt to enter. Proved by Ioan Battin, Col. Popham, Col. Stephens, and Captain Nevill. Lievtenant Clifton, Captaine Husbands, and Captain Vaughan, (Fiennes owne Witneſſes) upon croſſe Examinations before the Councell.

Fiftly, that the day before the enemy entred, one Thomas Munday, a Souldier 5under Captaine Henrie Lloyd (as both their Depoſitions witneſſe) pointing with his finger to the very place where the enemy entred the next morning, told Major Langriſh in the hearing of Colonell Fiennes; Captain, Yonder is a very ſuſpitious place, not fully fortiſied, and it is verie doubtfull, unleſſe you ſet an hundred Musketiers more there, it being but weaklie manned, the enemies will there make their firſt breach: Whereupon Colonell Fiennes for this his good advice in an angry manner asked him, What? doth he prate? and called him Sawcie Knave: and Langriſh having the guard thereof, ſuffered the Enemy the very next morning to enter the Line at that ſame place, from which he retired with his horſe without any charge or reſiſtance, when as he might eaſily have repulſed and beat them off, yet the Defendant never queſtioned nor complained againſt Langriſh for this his cowardice and treachery, which was the onelyonly reall occaſion of ſurrendring the City, but countenanced and juſtified him all he could, affirming in **Reply to Mr Wallers Relation.print, that he was acquitted by a Councel of war of cowardice, which was falſe; and endeavoured to lay the blame of not charging upon one Lievtenant Rouſwell, who was ſo far from being guilty of this fact, that ſeeing Langriſh with his Troop quit the breach without charging, he called him Coward, and with three or foure Musketies onelyonly marched up to the enemy, and made good the breach for a time, till he received ſo many wounds (whereof he after died) as forced him to retreat for want of ſeconding; he affirming that if he had been ſeconded by the horſe, or with 20 Musketiers more, he could eaſily have repulſed the enemy, and made good the breach; yet this dead man muſt thus be traduced before the Councell to ſave Langriſh his credit, though Captain Husbands (one of the Defendants owne witneſſes) confeſſed, that Langriſh his cowardice, in not charging, was the loſſe of Briſtoll, and that he told him ſo openly to his face, at a p. 44meeting in London, ſince the ſurrender; yet the Defendant had the boldneſſe to juſtifie, and produce him as a competent Witneſſe, viva voce, at the hearing before the Councell, where the Proſecutors articled againſt him for this and other acts of cowardice, and would have proſecuted him with effect, had they ſeen any fruits of the ſentence againſt Col. Fiennes, but ſuch as juſtly diſmayed them from all future proſecutions of this kinde.

6Sixtly, that for two or three houres ſpace at leaſt, the few enemies who firſt entred had no reliefe nor ſupplies ſent to them, neither indeed could have, the enemy being bravely repulſed with great loſſe in all other places, ſo as they retired in diſorder to their Quarters, and one whole Regiment of their horſe retreated as far as White-church, foure miles from Briſtoll, with a reſolution never to come on againe, had not the meſſage of the unexpected Parley, and hopes of the Cities ſurrender thereupon, drawne them back to their Quarters: And that diviers of the Enemies confeſſed, if they had then been repulſed or beaten out of this breach, they had raiſed their ſiege, and never come on againe. Serjeant Hill, Major Wood, Iames Coles, depoſe all this, and the Defendants witneſſes confeſſed it.

7Seventhly, that from three in the morning, when the Enemy entred, till about 10 or 11 a clock at leaſt, there was no charge at all made, except onelyonly by Rouſwell, and after by Capt. Nevill, who charged them downe hill onelyonly with twenty horſe an houre or more after their entry, and could have then beaten them out, as he verily beleeved, and atteſted upon Oath, had he been ſeconded with 30 or 40 horſe or Musketiers. A very ſtrange neglect, to ſuffer the Enemy to lodge ſo long within the Line, ere they were encountred.

8Eightly, that upon the Enemies entry Colonell Fiennes in ſtead of commanding the next Guards and Companies then at the Out-works, to fall upon and beat them out, as he was preſſed to doe by Lievtenant Daviſon, Major Wood, Captaine Bagnall, Mr Deane, Serjeant Hill, and others, commanded all the Souldiers upon paine of death, by his Lievtenant Clifton, to draw off the Line and Works on that ſide of the City the Enemy entred, and to retire into the City with all ſpeed to the Market-place, full ſore againſt their wills: whereat divers of the Souldiers**Ioan Battin, Wil. White-horne, Serjeant Gale, Captaine Bagnall, Tho. Munday. were verie much diſcontented and diſcouraged, and many of them ſaid, They were betraied. Whereupon they retreated from the Line and Out-workes in great diſorder, many of them leaving not onelyonly their Swords, Muskets, Powder, Bullets, but their very Cannons behinde them, which might with eaſe have been eaſily drawne off being downe the hill, and many Halliers horſes ready at hand for that ſervice; at which the Gunners were ſo diſcontented, that ſome of them ſpiked and nayled up the touch-holes, to make their Cannons unſerviceable to the Enemy, and the City-Garriſon too, in caſe they had returned to the Workes and Line, which by this ſtrange Souldiery were left naked of all defence neare two miles ſpace together, ſo as the Enemy might have entred the Line where they pleaſed, in ſundry places of greater advantage, nearer to the Citie, Caſtle, Suburbs, by much, then where they had made their firſt entry. Which ſtrange deviſe and unmilitary policie, if it favoured not of apparent treachery, yet at leaſt it cannot be excuſed from extreme folly, and want of skill in Martiall affaires, which made Major Lewis, and other of the beſt experienced Souldiers (who adviſed not to draw off the Line into the City, but to fall preſently p. 45on the enemy from the Line it ſelfe, which was the nearer, beſt, and ſpeedieſt way) exceedingly diſcontented.

Ninthly, that when the Souldiers were thus haſtily and confuſedly called from 9the Line into the Market-place,**Capt. Bagnall they there ſtood idle, looking one upon another, without any command to make a fally, or doe any other ſervice to ſecure the City; whereupon, for want of command and imploiment, divers of the Souldiers who had been upon duty at the Line foure or five dayes and nights together, departed from their Colours, ſome to the Taverne, ſome to the Ale-houſe to drink, others to their beds to ſleep, ſo as their companies were broken, and not halffull, whereas if they had marched orderly from the Line againſt the Enemies when they firſt entred it, which was far the beſt and ſhorteſt way; or made a ſally as ſoone as they retreated from the Line, theſe inconveniences had been prevented, the Souldiers kept in heart, the enemies cut off, or beaten out, the breach made up, and the City preſerved.

Tenthly, that when the ſally was made, not before, but much about eleven of 10the clock,Major Wood, Wil. White-horne. it conſiſted not of above 200 men, and that of thoſe called off the Line, the freſh men at the maine Guard, and Captaine Stokes his company purpoſely kept for a Reſerve, with the Garriſon ſouldiers in the caſtle, (who were not in the fight at the Line, and might have made a preſent ſally, without calling any from the Line) being not imployed on this ſervice.

Eleventhly, that when the enemies upon the ſally, though late, were driven from 11houſe to houſe, and ſo beaten, that they let fall their Armes, and cryed for Quarter; and when the women were ſo couragious, that they profeted to goe with their children unto the Cannons mouth, to dead the bullets, in caſe the Souldiers were afraid,Serieant Gale, Ioan Battin, Mrs Haſſard, Thomas Munday, Serieant Gale. rather then the City ſhould be yeelded, and thereupon encouraged both the Gunners and Souldiers to fight, working in the very face of the enemy, and ſtopping up Froome-gate with a very thicke worke (made with earth and Wooll-ſacks) where the Enemy ſhould have entred the citie; yet ſuch was the Defendants extraordinary cowardice, that he even then ſent twice out to the Enemy for a Parley, whereas the Souldiers generally deſired and offered to fight it out to the utmoſt; which ſo much diſcontented divers ſouldiers, that they ſaid they were betrayed, and in very anger brake their Muskets, Swords, Pikes, leſt the Enemy ſhould gaine them, ſwearing they would never ſerve the Parliament more, and taxing the Governour for his Parley and cowardice.

Twelfthly, That the Caſtle was ſurrendred, the Priſoners releaſed, the Enemy 12admitted into into the Towne long before the houre agreed on,Maior Wood, Col. Stroode, and others. through the Defendants haſtineſſe; yea the ſouldiers and Towns-men pillaged before his face, yet he took no care to ſee them righted, but left them to the ſpoile, neglecting to take hoſtages to ſee the Articles performed; which (contrary to the Rules of War) were not made between Prince Rupert, Richard Winſto…e, Capt. Husbands and others.the Kings Generall, and the Governour, but between him and the Princes Commiſſioners onelyonly; and that he made ſuch haſte to quit the Towne, that he left Captaine Blake, and Captain Husbands in Brandon-hill and Prior-hill Forts behinde him, never giving them notice of the Articles, nor any Warrant under his hand to ſurrender them to the Enemy, to the endangering of their lives and liberties.

13. That Colonell Fiennes being moved to ſend away the Priſoners before p. 4613the ſiege, refuſed, ſaying, He would keep them there to make his owne conditions the better, thinking of nothing before hand, but to ſurrender the City, to ſave himſelfe: That he told**See Mr Talboyes depoſition. Mr Talboies, that he ſhould not be in Briſtoll for ought he knew at Saint Iames tide then next enſuing, and uſed ſuch expreſſions to him, as made him believe he meant to ſurrender the Towne by that time, (as he did the very next day after Saint Iames his feaſt) who thereupon left the City, as intended to be ſurrendred by the Governour: That he commanded Mr Haſſard to lay by a Reſerve of 30 barrels of Powder, with Match and Bullets proportionable, to which when he was reduced he would treat:**Rich. Butlers teſtimony. That there were about 140 Granado's in the caſtle, and one new Morter-piece, and that Iohn Warden one of the Gunners of the caſtle did often importune the Defendant to give him leave to make a ſhot at the Enemy out of the ſaid Morter-piece, but the Defendant commanded him under paine of death not to make any ſhot at them; whereat the ſaid Gunner was ſo grieved, that he oft complained the Towne was betrayed: All which Granado's, with the Morter-piece, were ſurrendred to the Enemies, and not one of them ſhot againſt them, though they ſhot many Granado's at the Towne and Garriſon.

1414. That the caſtle and forts were very ſtrong and tenable, if not the Towne; that the Defendant himſelfe,Col. Stephens, Col. Strode, Mr Powell, Major Wood, Captain Bagnall, Thomas Munday, Rich Lindon, Ed. Watlin, Nich. Cowling, Ioan Batlin, Nich, Coles, Mary Smith, Ethelred Huddy, Mich. Sparks, and others atteſt this. the Towns-men and Souldiers reputed them ſo; that they might have been held divers moneths, yea to this very time, had not they been ſurrendred; that the Enemy could not have taken them by force, even by their owne confeſſions, nor all the Devils in hell have taken the caſtle, had not the Defendant beyond their expectation ſurrendred them baſely into their hands, and beſtowed them upon them; for which ſurrender the very enemy called him a baſe Coward, and ſaid he deſerved to be hanged for delivering up ſuch a Town and Caſtle as that to them ſo eaſily, for which they might thank Fiens, elſe they could not have won them by force, had not he beſtowed them on them beyond their hopes. From all which particulars (fully proved by the enſuing teſtimonies) we concluded, That the Town, Caſtle, Ammunition, Cannons, Armes, &c. were moſt diſhonourably, cowardly, and treacherouſly delivered up to the Enemy, and that without and againſt the Parliaments or his Excellencies previous conſents, who abhorred the fact, and never gave the leaſt way thereunto, being executed before they had any thought or tidings of it, and before the City and Caſtle was reduced to any extremity. And thus we concluded the ſecond dayes worke.

The Defendant (who ſpent not three full dayes in defence of the City) waſted the three next whole dayes in defending himſelfe againſt the firſt charge in the third Article onelyonly; and no leſſe then one dayes ſpace in ſhewing the weakneſſes, defects, and intenability of the Caſtle, on whoſe fortification he hath beſtowed much money and paines, onelyonly to yeeld it up to the Enemy, before one ſhot was made againſt it, as a Fort not tenable then, though before that time a place almoſt impregnable, in his own and others opinions, which he ſelected for his Magazine and laſt refuge, reſolving to hold it againſt the Enemy, and to lay his bones therein, rather then yeeld it up againſt his truſt. In this his defence (to ſpin out time) he led us in perambulation through all the Works, Forts, Dikes, Rampires, Walls, about the City or Caſtle, proving the heigth, length, depth, breadth, dimenſions, p. 47ſtrength, defects and weakneſſes, of all and every inch of each of them, before the Councell by his Officers onelyonly, (who were parties, and involved with him for the moſt part in the guilt of this ſurrender) which were ſcarce ever meaſured and conſidered by him or them before; and diſcovering ſo many weakneſſes and imperfections in them all, not formerly obſerved, as clearly manifeſted, that either his Engineers and he were extremely ignorant and blameworthy, in putting the Kingdome, Citie, Countrey, to ſuch vaſte expences, in making ſuch inconſiderable weak fortifications, (which yet the Enemy did not, could not force, with all his ſtrength and ſtorming, loſing one hundred men to one of ours in the aſſault, ſo ſtrong and tenable were they till ſurrendred;) or elſe that theſe defects and imbecillities were but fine new devices, found out ſince the ſurrender, (as in truth they were) to palliate, or extenuate the treachery and cowardice of the Defendant; who left no ſtone unmoved, no turfe unturned, no dike unfathomed, no Cannon or Bullet unweighed, (for we had proofe of each of theſe) to ſave his head from the blocke, of which he had far more care then of the City or Kingdome, and took us up about ſixe whole dayes in the debate of this one Article.

The ſumme of the Defendants tedious defence, conſiſted of the enſuing particulars, to every of which, for brevitie and perſpicuity ſake, we ſhall ſubjoine the diſtinct Replies then given, not in a continued Speech, as they were uttered, (the whole three dayes firſt defence being made intirely together, and then the Reply, Rejoinder, and Surrejoinder thereunto) but in parcels, as each part of the Reply, Rejoinder, and Surrejoinder was applied to each particle of the Defence.

Firſt, Allegation 1.the Defendant denied, that all the Armes were ſurrendred to the Enemy, for it appeareth, by the firſt Article of the ſurrender, that all the Officers of horſe and foot were to march out with their full Armes, and the Troopers with their ſwords.

To which Mr Prynne anſwered, Anſwer 1.That by the first and tenth Article of ſurrender all the common foot Souldiers were to march out without Armes, and the Troopers onelyonly with their Swords, leaving their other Armes, together with all their Cannons, Ammunition, and Colours, behind them; therefore ſince all the Armes of the foot, all the Troopers Armes but their ſwords, (which were not many nor conſiderable) with all the Cannons, Ammunition, Colours, were thus ſurrendred, the words of the Article of Impeachment, that all the Cannons, Ammunition, Arms, &c. were ſurrendred, were ſufficiently and literally proved.

Secondly,2. that All, both in Scripture, Law, and common parlance, is frequently taken for the greateſt part, or well nigh all; as Matth. 2. 3. Herodwas troubled and all Hieruſalem with him: Matth. 21. 10. All the City was moved, ſaying, who is this? All men thinke ſo, All affirme it; They have taken all their Armes, Baggage, and the like: where all is taken for the greateſt part, or all in effect. And in this ſenſe the Article is true, ſince the Officers Armes, and Troopers ſwords, in reſpect of all the other Armes there left, were not conſiderable.

Thirdly,3. moſt of all the Officers Armes and Troopers ſwords were taken from them by the Enemy, as the Defendant confeſſeth in his**Page 11. Relation, Anſwer, and we have proved; and if any eſcaped with their Armes by chance, yet all their Armes were quite loſt as to the State, which had no benefit by, nor account of them: therefore in this regard the Article is moſt true.

p. 48Secondly, Allegation 2he denied he ſurrendred the City and Caſtle againſt the Parliaments and his Excellencies conſents, though it is true hee did it without their previous conſents.

To which Mr Prynne replied,Anſwer: that this was a very frivolous diſtinction: For 1firſt, Chriſt himſelfe by this ſpeech, * He that is not with me is againſt me, reſolves, that what is done without the Parliaments and his Excellencies conſents (eſpecially if they diſlike and diſavow it afterwards) is done againſt their conſents, Matth. 12. 30.Matt 12:30and that in ſtrict propriety of ſpeech: Hence, if a mans ſervant, cattell, without his privity or approbation commit a Treſpaſſe in his neighbours ground, or if one caſually tread upon anothers toe, he uſually ſaith in theſe and ſuch like caſes, It was againſt my will or againſt my liking and conſent: Briſtoll therefore being undoubtedly ſurrendred not onelyonly beyond, but contrary to the Parliaments and his Excellencies expectations and deſires, was certainly ſurrendred againſt their wils and conſents, as well as without them.

2Secondly, the Parliaments and his Excellencies expreſſe will and intention was, that Briſtoll ſhould be kept to the utmoſt extremity, and not ſurrendred to the Enemy, this being the end wherefore they placed a Governour and Garriſon there, and made Works about it; the ſurrendring therefore of it, contrary to both their expreſſe wills and directions, muſt needs be not onelyonly without, but againſt their wills and conſents. This all the world knowes, unleſſe the Defendant can ſhew their expreſſe conſents thereto.

3Thirdly, the Houſes and his Excellencies former opinions of, and calling him to an account heretofore, and now into judgment for this ſurrender, as directly contrary to his truſt, and their directions, is a ſufficient proofe it was not onelyonly beſides, but againſt their conſents; and to thinke or ſpeak otherwiſe, is but to lay a grand imputation on the Parliament and his Excellency, in making them acceſſaries to this diſhonourable, trayterly action, which hath almoſt loſt the Kingdome.

Thirdly,Allegation 3 he alledged, that foure dayes before the fiege he ſent one Scotten with a Letter to his Excellency, to acquaint him with the weakneſſe of the Garriſon, that he had not above 900 men beſides Citizens, as likewiſe to ſee the eſtate of his Army, and crave ſpeedy ſuccours from him: That he found his Excellencie had but 4000 Foot able to march, many of his men being then ſick, and not in a marching condition to relieve him; that it was cleare (as he averres in his**Page 9. Relation, and then alſo affirmed, to the Parliaments and his Excellencies diſhonour) they could not expect, nor have had any reliefe in ſixe or eight weekes time: And to juſtifie this diſpaire of timely ſuccours, he produced a Letter written by his Excellency to the Lord Say, his Father, to this effect; That he was ſorry Briſtoll was in ſo much danger, as by Colonell Fiennes his Letter to him it ſeemed to be; and that himſelfe at that preſent was not in a fitting poſture to relieve it, which troubled him the more, for that his Lordſhips ſonne was ingaged there: (which Letter being read, Mr Prynne inquiring the date thereof, found it dated the 28 of Iuly, two dayes after the ſurrender of Briſtoll, which was on the 26 of that Iuly.) From all which the Defendant inferred the neceſſity of ſurrendring the Towne and Caſtle, for want of ſuccours, which had they been neare, he could have made a ſhift to have held out three or foure dayes longer, and would have p. 49done it; but being hopeleſſe of reliefe, he could not in point of ſouldiery or policy have held it longer then he did.

To which Mr Prynne replied,Anſwer 1. firſt, that he did but his duty in ſending thus to his Excellency, and that this would no more excuſe his treachery and cowardice, in ſurrendring the Towne, then**See the Doom of Trechery and Cowardize. Weſton, Gomineys, and the Biſhop of Norwich their ſending to the Governour of Caleyes, and the Lords of the Councell, for timely reliefe, did excuſe them.

Secondly,2. that in this Meſſage and Letter to my Lord Generall, but foure dayes before the ſiege, he complained neither of want of Ammunition, Victuals, Monies, nor of the weakneſſe or intenability of the Workes, Towne, Caſtle, (which doubtleſſe he would have done had there been reall cauſe) but of the ſmallneſſe of the Garriſon, which he ſaid were then but 900, beſides Citizens: But our**Col. Stevens, Arthur williams, Abel Kelly, Maior Wood, and others. Witneſſes prove expreſly, that at the time of the ſiege he had at leaſt 2000 Foot and 300 Horſe, beſides Voluntiers, which were neare 200 more: and Major Allen atteſted, that he brought neare 200 men well armed from Malmſbury, but a day or two before the ſiege; ſo as his 900 were encreaſed to 2500 men, or more; and he might have raiſed (as Mr Powell, his owne Witneſſe, atteſted) at leaſt ſixe or eight thouſand able men more, to beare Armes in the City, had he wanted men: Therefore the want of men was but a pretence. Beſides, had he needed onelyonly men, why did he adviſe Sir William Waller to march out with at leaſt 500 Horſe-men, leſt they ſhould have helped to have ſpent the proviſion of Briſtoll, as he confeſſeth in his Relation page 12? Certainly, either he thought the Towne tenable with the men he had, till all the proviſions in it were ſpent, and ſo the Garriſon ſtrong enough to defend it whiles they had Victuals, or elſe he deſired rather to ſpare the Victuals for the Enemy, (to whom they were ſurrendred) then for Sir William Wallers men, who (had they ſtayed in the City) would have made up his Garriſon 800 Horſe, beſides 2000 Foot, and in all probability have preſerved the City, which was partly loſt (as**Relation p. 7 himſelfe confeſſeth) by the cowardice of the Horſe, who refuſed to charge the Enemy when they entred, whom they might eaſily have cut off, had they but charged them, as they might and ſhould have done. In briefe, the Defendants owne **Page 6. hee writes he raiſed about 1000 or 1110 men, and procured as many Arms within 5 dayes, which added to his former Garriſon of 900 makes 2000 foote, beſides thoſe that came from Malmeſbury and his horſe. And p. 11. hee writes, hee thought to have ſaved a body of 300 horſe, and 1500 foot to the State by the ſurrender: Ergo he had ſo many, beſides Citizens and others that would ſtay behinde.Relation and Letter to his Excellency informe us, that his Garriſon conſiſted of at leaſt 2000 Foot, and 300 Horſe, and was ſo ſtrong and ſufficient, that when the Enemy ſtormed the Towne on every ſide with all their Forces, they were valiantly repulſed, with the loſſe of neare a thouſand of their beſt men, beſides 700 wounded; whereas he loſt not above ſixe or eight men at moſt, and had very few or none wounded: If then the Garriſon were thus ſufficiently ſtrong to repulſe the Enemy with ſo great loſſe, when their Army was ſtrongeſest and beſt in heart, much more … be ſufficient to repulſe them, and keep the Towne, when neare a thouſand of their beſt men were ſlain, and 700 more wounded, with the loſſe of ſixe or eight onelyonly of the Garriſon, the Aſſailants being much weakned, and Defendants as ſtrong, or ſtronger, and more couragious, by reaſon of their good ſucceſſe, then they were at firſt.

Thirdly, to his deſpaire of ſuccours in ſix or eight weekes time, by reaſon of the weakneſſe or ſickneſſe of the Army, it was anſwered, firſt, That as hope is the laſt thing that forſakes a valiant man, ſo it is the firſt that deſerts a Coward, p. 50who placeth his confidence any where rather then at home in his owne boſome.

Secondly,2. that no man, much leſſe a Chriſtian and Souldier too, ought to deſpaire of Gods providence and protection in a juſt cauſe, even where he can ſee no humane probability of ſuccours, but ought to**Pſal. 27. 14. Pſ. 37. 7. Pſ. 62. 5. Pſ. 123. 2. Iob 13. 15. Pſ. 62. 8. Prov. 3. 5. Iſay 26. 4. Iſa. 50. 10.Ps 27:14Ps 37:7Ps 62:5Ps 123:2Job 13:15Ps 62:8Prov 3:5Isa 26:4Isa 50:10 wait, and truſt on God to the utmoſt extremity, who many times ſends reliefeaaEpheſ. 3. 20.Eph 3:20 exceeding abundantly, beyond all men can aske or thinke, as he did to Jeruſalem, Samaria, of old, and to Rochell of late: Andaces fortuna juvat, was the Heathens obſervation; Fortes Deus adjuvat, the Chriſtians: his cauſleſſe deſpaire then of timely reliefe from God or man, the Parliament or his Excellency, argued not onelyonly want of Courage, but Faith too, both in God and men.

Thirdly,3. valiant Maſſie (if this plea might be admitted) had far more cauſe to deſpaire of timely reliefe then the Defendant: for both Fiennes and Clifton his Lievtenant profeſſed openly, after the ſurrender of Briſtoll, that they would be hanged if Gloceſter could hold out two dayes, if the Enemy came before it: and Colonell Pury and Captaine Parry depoſed, that the Walls and Works about it were weaker then Briſtols, their Garriſon not above 1500, Club-men and all, their Powder not above 32 ſingle barrels, beſides what they made during the ſiege, their proviſion not ſo plentifull as Briſtols, their Cannon but ſeven or eight, whereas Briſtoll had 55 Canon, beſides Sir Francis Pophams Peeces; the Enemies before Gloceſter almoſt**See Mr Dornyes Relation of that ſiege p. 1. 10000 more then thoſe that beſieged Briſtoll, and likewiſe accompanied with the Kings perſonall preſence. Beſides, his Excellencies Army, by reaſon of ſickneſſe, was now far weaker, and more unable to relieve Gloceſter, then it was when it ſhould have marched for Bristols reliefe; yet notwithſtanding all theſe diſcouragements, and the great dammage and diſcouragement the ſudden unexpected loſſe of Bristoll ſtrucke into all mens ſpirits, Maſſie and Gloceſter men did not baſely yeeld up the Towne to the Enemy, as ſoone almoſt as they came before it, but relying on Gods providence, and the Parliaments care to the uttermoſt, received timely reliefe from both in leſſe then three weeks after they ſent for ſuccours; as Briſtoll doubtleſſe would have done, had Colonell Fiennes had ſo much true Faith and Valour as Maſſie had. Now that Briſtoll would have been relieved far ſooner then Gloceſter, Mr Prynne undeniably proved by theſe Arguments.

1Firſt, becauſe my Lord Generals Army was in a far better condition almoſt by halfe, to march when Bristoll was beſieged, then it was at the ſiege of Gloceſter, the number of it being much decreaſed by ſickneſſe in the interim, and their courage, ſpirits, much daunted by Briſtols unexpected ſurrender in ſo ſhort a time, upon ſuch diſhonourable termes, which hee doubted at all the whole Councell preſent could experimentally atteſt.

2Secondly, the Parliament, his Excellency, London, and the whole Kingdome, looked upon Briſtoll as a place of the greateſt conſequence of any in England, next to London, as the Metropolis, Key, Magazine of the Weſt, which would be all indangered, and the Kingdome too by its loſſe: as a Town of infinite more conſequence then Glocester; by the gaining whereof the Enemy would be furniſhed with all manner of proviſions, and Ammunition by land, with a Navie and all Merchandize by ſea, and enabled to bring in the ſtrength of Wales and Ireland, p. 51for their aſſiſtance: therefore being of ſo great concernment, the Parliament, his Excellencie, London, and the Kingdome, would have been far more carefull to relieve it in due time, then they were, or would have been to relieve Gloceſter, of which they had yet a ſpeciall care.

Thirdly, Briſtoll was a Towne of far greater commerce with London then 3Gloceſter, many Londoners having a great part of their Trading and eſtates too in it: Therefore this particular intereſt would have made the Londoners more forward to march to relieve Briſtoll then Gloceſter.

Fourthly, Colonell Fiennes and the Citizens of Briſtoll had more powerfull 4active friends in both Houſes, and about his Excellency, (as his Letter to the Lord Say imports) to ſolicite and expedite their reliefe, then Maſſie or Glocester had; therefore though the Parliament and his Excellencie were very ready to have ſent timely reliefe to both, yet in all probability, Bristoll in theſe reſpects had been ſooner relieved (had it held out) then Gloceſter was or could have been; the rather, becauſe the loſſe of Briſtoll made many men fall off from the Parliament, more to ſtand as Neutets, and damped the activity and ſpirits of moſt men.

Fourthly, it was anſwered, that the Defendant produced no proof of his deſpaire, but onelyonly his Excellencies Letter, written and ſent to the Lord Say, not to him, and dated two dayes after the ſurrender made; this therfore could be no ground, no cauſe at all of the ſurrender, which ſo long preceded it. To ſupply which over-ſight and defect, Colonell Fiennes next day produced a Witneſſe, to prove, that the day before the ſurrender there came one into Briſtoll, who reported that the Lord Generals Army was very weak, and in no poſture to march; but who it was, or whence he came, or how he came in thither, the Towne being beleaguered, or whether the Governour ever had any certaine information of this report, there was not the leaſt ſhadow of proofe.

Fifthly, It was replyed, That if a Govournours groundleſſe ſurmiſe of an 5improbability of timely ſupplies, might be a good excuſe to ſurrender a Town, the ſtrongeſt, beſt furniſhed Townes and Forts in the Kingdome might be betrayed, ſurrendred to the Enemy in a moment under this pretence: Col. Maſſie might have then upon farre better grounds have ſurrendred Glocester to the King the firſt day; the Earle of Stamford, Exeter; and Col. Warnlow, Plymmouh the ſecond day they were beſieged; then the Defendant Bristoll on the third day, ſince there was a farre greater improbability of relieving any of theſe in time, then of Briſtoll: And by this reaſon, had Col. Fiennes been furniſhed with men, Ammunition, Victuals, to have kept the Town, five, or ſeven weeks longer, yet by this way of arguing, hee would certainly have ſurrendred it when hee did, (in leſſe then three dayes ſpace) and not have kept it to the fifth or ſeventh weeks end; becauſe he conceived an improbability of reliefe in eight weeks time, out of a pannick feare, or out of a meere deſign to colour his ſurrender: Hee ſhould have therefore held it to the uttermoſt extremity, and God or ourvigilant Parliament (no doubt) by that time would have ſent reliefe, as they did to Gloceſter; or if none had come; hee had then diſcharged his duty, and been excuſed: But ſince hee kept it not to the laſt, but prejudged Gods, the Parliaments, and his Excellencies care to relieve him in due ſeaſon, his fault is inexcuſable and capitall.

p. 52Fourthly,Allegat. 4. He alledgeth, That he did not ſurrender the City, Caſtle, Armes, &c. Trayterouſly, and that no treachery was proved againſt him.

To which Mr Prynne Anſwered:Anſwer. Firſt, that though there were no direct 1proofe of any correſpondency or intelligence with the Enemy; yet if they were ſurrendred before uttermoſt extremy, the very Law it ſelfe, and the Letter of the Ordinances for warre, reſolve this to bee Treaſon. And being thus treaſon, even in point of Law, he needed no other proofe, that it was trayterouſly ſurrendred, but the Law and Fact it ſelfe: And wee ought to charge it in the Impeachment, that it was Trayterouſly ſurrendred, as the Law reſolves it to be, elſe the impeachment was not good in Law, neither could Iudgement bee given on it. Hence by the Rules of the Common Law, if a man be indicted of any crime which is Treaſon, Felony, or Burglary by the Law, the Indictment muſt runne, that he committed the cryme, Proditoriè, Felonicè, or Burglariter, elſe the Indictment is vitious and defective. Therefore by like reaſon, the ſurrendring of any Fort, before utmoſt extremity being Treaſon, it ought to bee charged in the Articles, That it was Treaſonably ſurrendred, and for this end, he inſerted the word Treaſonably into the Articles: The Check to the Checker of Brittanicus hath taken great hold of this paſſage, in his two laſt pages, annexing ſeven Witneſſes (if need bee) to prove it, and all to juſtifie, yea, acquite Col. Fiennes from Treaſon. But if it be any honour to him to bee thus guilty of High Treaſon, and to deliver up Briſtoll, Trayterouſly, in this ſence Mr Prynne then gave of it, before extremity (for which he was adjudged to looſe his head) there is no man will envie him this new Garland to crown his condemned Pate withall, which is freely yeelded him without further proofe.

2Secondly, It was Anſwered, That feare and cowardize were the moſt trayterly paſſions of all others: Theſe have cauſed many to betray their own reaſon, ſenſes, Liberties, Lawes, Eſtates, Truſts, Friends, Countreys, Kingdoms, Soules; whence we finde theaaRev. 21. 8.Rev 21:8 fearfull, marſhalled in the very front of thoſe, Who ſhall have their part in the lake that ſhall burn with fire and brimstone: and quitebbDeut. 10. 1. 8 Iudg. 7. 1. 2. 3. Iſay 51. 12. 13. Matth. 10. 26. 28.Deut 10:1Deut 10:8Judg 7:1Judg 7:2Judg 7:3Isa 51:12Isa 51:13Matt 10:26Matt 10:28 exploded out of Gods temporall and ſpirituall Militia. Therefore if he ſurrendred them out of feare or cowardize only, though without any trayterly compact with the Enemy, the ſurrender is properly ſtiled Traiterous, as well as Cowardly, even in reality and Law.

3Thirdly, It was Anſwered; (which the Check to the Checker might have taken notice of) that though there were no direct Treachery charged or proved in the fourth Article, yet there were vehement preſumptions, ſuſpitions of it (which oft times caſt and condemne Felons, Murthers, Traitours, as experience manifeſts, as well as poſitive proofes) directly charged and ſhould bee proved againſt him in the ſeventh; which we would here make uſe off and bundle 1up together: Firſt then, his own frequent confeſſions in his Anſwers, That he never undertook to keepe or not deliver the City or Caſtle to the Enemy without the Parliaments and his Excellencies previous conſents: That they neither in honour nor juſtice could expect ſuch a promiſe from him: That hee ought not to have kept the. Caſtle when the Enemy had entred the Line, but ought to have ſurrendred the ſame, (although tenable) to the Enemy, together with the City, by the principles of honeſty and juſtice, the Rulers of wiſdome and diſcretion, &c. p. 53Coupled with his wilfull miſinforming of the Councell of warre; when they met about a parley, that there was **See here, p. 25. 26.not above 20 barrells of powder left in the Caſtle (when as there were 70 French Barrels, beſides what was in the Forts and City) and not above 3 or 400 waight of Match; and commanding Mr Haſſard the ſtore keeper to ſay there was no more (as he confeſſed to Captain Birch) when as Mr Haſſard depoſeth, there were 50 Barrels of powder, at and leaſt 1400 waight of match, beſides as much more as four horſes could draw, brought into the Caſtle that morning (as Arthur Williams and Ione Batton depoſed) and 140 bundels as Captain Buſhel affirmed; of purpoſe to draw the Councell to a preſent parley and ſurrender, were vehement preſumptions and circumſtantiall proofes of treachery and undirect dealing: All which being ſecondly, compared with the Depoſitions of Captaine Loyde and Thomas Munday, that the Defendant called Munday, ſaucy knave, when he informed him and Langriſh of the danger and weakneſſe of the very place, where the Enemy the next morning entred, refuſing to ſtrengthen the Guards there as he was adviſed by him, and appointing Major Langriſh (a noted coward formerly complained of to him for his cowardize and negligence) to guard this weakeſt place, who never once offered to charge the Enemy, but gave them leave to enter, and yet he never queſtioned him for this treachery, but countenanced him by his favour, juſtified him in print, and produced him before the Councell as a competent Witneſſe: With his refuſing to ſend away the Priſoners in the Caſtle before the ſiege, upon Sir William Wallers adviſe: ſaying, That hee would detaine them there to make his conditions the better if the Enemy came before Bristoll, (atteſted by Sir William, Col. Cook, and confeſſed by himſelfe:) with his ſpeeches to Mr Talboyes (who moved him to reſpite a Delinquents payment of a ſumme of moneys till St Iames-tide then enſuing;) That he knew not whether he ſhould be at Briſtoll at St Iames-tide, &c. which made Mr Talboyes then preſently conceive he intended to ſurrender the City about that time, (as hee did the next day after St Iames day, viz. Iuly 26 1643) whereupon Mr Talboys preſently removed and left the City: With his prohibiting Iohn Warden the Gunner, (as Richard Butler depoſeth) under paine of death to ſhoot any Grando's at the Enemy, when he preſſed him that he might do it, which made him ſay they were betrayed: All theſe particulars laid together, and coupled with Captain Ropers depoſition, that the Lady Newport told this as a ſpecial ſecret to the Counteſſe of Deſmond at her being in Oxford, a little before Bristoll was beſieged, that this City would be ſurrendred to the King as ſoone as his Forces came before it; (which Captain further atteſted from the mouth of the Right Honourable Earle of Denby, that there were divers Wagers laid at Oxford, and offered to be laid in and neare London, as ſoone as the ſiege of Briſtoll was ſpoken of, that this Towne would be ſurrendred the 26 of July, the very day it was afterwards yeelded up;) The calling his men off the Line under paine of death, and not ſuffering them to fall on the Enemy, which made many then ſay, they were betrayed; with his late & ſlender ſallie. All theſe particular circumſtances annexed to the premiſſes, and ſubſequent matters, ſeriouſly pondred, are ſufficient to make a vehement ſuſpition, if not a punctuall evidence, that Briſtol was not onelyonly cowardly, but traiterouſly delivered, as well in a proper as a legall fenſe, notwithſtanding the Defendants (and Checkers) flouriſhes to the contrary, p. 54till time ſhall diſcover the obſcured ſecrets of this myſterie more apparently to the world.