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

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

p. 54His fifth Allegation (wherein he ſpent moſt time and paines) was,Allegation 5 That the Towne and Caſtle were not COWARDLY ſurrendred.

Before he came to make this good by proofes and arguments,Object. 1. he firſt excepted againſt our Witneſſes to prove the ſurrender cowardly, becauſe ſome of them were Women, others Enemies, who were not competent Witneſſes, and were ready to ſlander their oppoſites.

To which Mr Prynne replied,Anſw. 1. 2. Firſt, that ſome of the Witneſſes onelyonly were Women,2. and thoſe ſeconded by men. Secondly, that they declared not their own weak opinions, but the judgements of men; yea of the Enemies owne Commanders in private ſerious conference among themſelves, as well as in open diſcourſe to others.3. Thirdly, that theſe Women-witneſſes, and other Females in the City, ſhewed more true courage, undauntedneſſe, then the. Defendant and ſome of his Officers, working boldly in the face of the Enemy, where they durſt not appear, oppoſing a Parley when he ſent out twice for it, and offering to goe in perſon with their children into the very mouth of the Cannon to dead the bullets, if the Souldiers were afraid, rather then the City ſhould be ſurrendred: Being then ſuch maſculine Females as theſe, he thought them meet Witneſſes to prove the ſurrender Cowardly. 4.Fourthly, to the teſtimonies of the Enemies he anſwered, that it was in this caſe the beſt and ſtrongeſt of any other, it being the naturall diſpoſition of every Souldier that takes any ſtrong Fort or City, to extoll the Enemies valour and difficulties of winning it as much as poſſible, the more to advance their owne proweſſe. It's no great honour in any mans judgment to conquer a Coward, or place not tenable; therefore thoſe who detract from their Enemies valour or ſtrength, derogate moſt from their owne Honour, Conqueſt, Proweſſe, and as much diſparage themſelves as their enemies thereby: Since then the enemies both in private diſcourſes themſelves, and in conference with others,See Mary Smith, Ethelred Huddy, Ioane Battin, Ioſeph Proud, Mich. Sparke, Nich. Collins. ſo frequently cenſured this ſurrender as cowardly, taxed the Defendant for a Coward, and confeſſed they could not have taken the Towne, nor all the Divels in Hell the Caſtle, had the Defendant held them valiantly out againſt them, and not cowardly ſurrendred them beyond their expectation: their teſtimonies backed with the premiſes, muſt be a moſt convincing evidence in this particular.

Secondly,Object. 2. he objected, that Mr Prynne had been tampering with ſome Witneſſes, and urging them to teſtifie againſt him: for which he produced two inflances: The firſt was, that Mr Prynne urged Mr Haſſard, who kept the ſtores in Briſtoll Caſtle, to atteſt there were more then 50 barrells of powder therein when it was ſurrendred; inſomuch that Mr Haſſard told him, he would not goe againſt his conſcience. Secondly, that he meeting with Lievtenant Colonell Daviſon in the Street, offered him a quart of Wine, preſſing him to goe to a Taverne, and to ſet down what he could atteſt touching his adviſing Colonell Fiennes to ſally out upon the Enemy as ſoone as they entred, and his diſlike of drawing his men from the Line, and his refuſing to follow this advice: which he denying to do, Mr Prynne told him that he was engaged to give in his teſtimony, becauſe Col. Fiennes had given him the Lye in print, in his Reply to Mr Walker; and for p. 55proofe hereof he produced two Witneſſes, that Daviſon told him this Story in his chamber in Arundell… houſe, in the preſence of the Lord Say his, Father.

To which unexpected falſe caſumny,Anſw. 1. Mr Prynne returned this anſwer, which he was ready to atteſt on his Oath: Firſt, that being ſummoned by the Defendant himſelfe to appeare before a Councell of War, to make good what he had written concerning the ſurrender of Briſtoll, he did thereupon repaire to Mr Haſſard, and other Witneſſes preſent at the ſiege, to deſire them to witneſſe the truth onelyonly of what they knew touching that action; which he might lawfully doe: and becauſe Mr Haſſard kept the Magazine, he deſired him to informe him how many barrels of powder there were in the Caſtle when it was ſurrendred; who thereupon anſwered, there were 50: upon which he demanded, whether there were not more then fifty? for he had ſundry Witneſſes to prove that he confeſſed to Captain Birch and Arthur Williams, that there were 60; and to Major Wood, that there were 70 barrels left when it was ſurrendred: and Captaine Buſhell (then a priſoner) affirmed he found no leſſe then 70 barrels there: if then there were more then 50, he ſhould doe well to declare the utmoſt number which he certainly knew to be there: To which he anſwered, he did thinke there were more then 50 barrels, but how many more he could not certainly depoſe, and therefore he would rather teſtifie leſſe then there were, in ſetting down fifty generally, without adding this Negative to it, and no more, which he durſt not ſweare, for then he was ſure not to wrong his conſcience. To which Maſter Prynne replied, that he deſired him by no meanes to wrong his conſcience in teſtifying more then the truth, but to keep a good conſcience, in witneſſing the full truth, and not concealing any thing to ſmother truth. At laſt Mr Haſſard ſaid, that he was not willing to appeare againſt Colonell Fiennes, for he had loſt moſt of his eſtate in Bristoll, and that there were arreares of pay due unto him, for paiment whereof the Colonell had lately given him a Bill under his hand, and if he ſhould loſe his arreares it would go hard with him. Whereupon Maſter Prynne then anſwered, hee would not preſſe him to any thing to his prejudice, and ſo left him, he promiſing to give in his depoſition in writing to the Advocate, which he never did. And whether this were tampering with Witneſſes, or who had tampered moſt with Haſſard, he or the Defendant againſt whom he was unwilling to teſtifie the truth, or all the truth, he humbly ſubmitmitted to their honourable judgments.

Secondly,2. for Lievtenant Daviſon, Mr Prynne proteſted, he never ſaw the man till he came voluntarily to him in Weſtminſter Hall, and told him freely, without any inducement on his part, that he was in the ſiege of Briſtoll under Colonell Fiennes, and after that in the ſiege of Gloceſter, from whence comming lately to London, he met with a printed booke, writ by Colonell Fiennes in diſgrace of Mr Walker, wherein he had given him the Lye, and a baſe Lye in the margin, to his diſhonour; whereupon being ſenſible of this open injury, he repaired to Colonell Fiennes to Arundell-houſe, and there in the Lord Say his preſence, challenged him for giving him the Lye in print without cauſe; deſiring him to give him publike ſatisfaction, or elſe he would take ſatisfaction himſelfe, for he would not take the Lye from any man in England: and withall told him to his face, that he did adviſe him not to draw the Souldiers from the p. 56Line, but to fall upon the enemies preſently, and cut them off, as they might have done with eaſe; but he rejecting his adviſe, called off the men, and ſo not making a timely ſally, loſt the Towne. Whereupon the Lord Say anſwered, Sonne you muſt take heed how you wrong any Gentleman of quality, eſpecially in print, and if you have wronged this Gentleman you may doe well to right him: VponUpon which Col. Fiennes confeſſed before his Father, he did give him ſuch adviſe, and that hee had done him wrong in putting the Lie over againſt his name; but it was much againſt his will through his boyes negligence; for after he had ſent the copy of his Reply to the preſſe, wherein the Lie was written in the margine againſt his name, he remembring this miſtake, ſent his boy purpoſely to the Printer to charge him to blot it out and not print it, which it ſeemes his boy (or himſelfe rather when he read the printed proofe and reviſe, where he might have expunged it had this tale beene reall) then neglected; but he would ſee it put out in the next Edition (a pretty flamme, ſavouring both of a lying and cowardly ſpirit, baſely to confeſſe that to be a truth in private, which he proclaimed to be a Lie in print;) Whereupon I ſeeing his freeneſſe with me, and thinking his teſtimony material, told him that the ſurrender of Briſtol was now brought into queſtion before a Councell of warre by Mr Fiennes himſelfe, whom I and Mr Walker were ſummoned to proſecute; and therefore we ſhould deſire his preſence as a witneſſe there, and ſo we parted then. Soone after the Councell of warre was adjourned, and then meeting with Lieutenant Daviſon (who made the ſame Relation to above twenty more in Weſtminſter Hall, as he had done to me) he told me he was going ſuddenly out of Town to Gloceſter, I deſired him to teſtifie his knowledge touching the premiſes before the Advocate ere he departed; Whereupon hee told me, that the Lord Say was his very good friend, and had promiſed to help him to his arreares, and therefore he was loath to appeare in the buſineſſe, there being other witneſſes ſufficient. To which I anſwered, I would have the Iudge Advocates warrant to bring him in as a witneſſe, and then no exceptions could be taken; which warrant when I had procured, I comming from the Advocates caſually met Daviſon on horſe-back above Ludgate near the Advocates lodging in Pauls Church-yard, where asking of him how long he ſtayed in Town, he anſwered that hee was to depart to Glocester the next morning; whereupon I told him, I had a warrant to bring him in as a witneſſe from the Advocate who was then in his lodging, which was cloſe by; and therefore ſince he was to depart ſo ſoone, I deſired him to goe with me then to the Advocate, to ſet down his teſtimony upon oath: which he excuſed ſaying, he had promiſed to meet ſome friends to drink a quart or two of wine with them before his departure; and ſo we parted without more diſcourſe: And was this a tampering, only to deſire a witneſſe to ſet downe what he voluntarily informed me, before the Advocate, when I had a warrant to examine him? As for offering him a quart of wine, or inviting him to a Taverne to drink, I proteſt I never did it, and am ſo averſe from ſuch a courteſie, that to my remembrance, I have never theſe eighteene yeares ſpace gone into any one Taverne in London or elſewhere, to give or receive one quart of wine, but only to eat a Breakfaſt or Dinner, and therefore it is very improbable I ſhould proffer this courteſie unto him, who as I diſcovered then by his diſcourſe had drunk ſufficiently before, and was going p. 57(as he told me) to drink more. But admit I proffered him a quart of wine, and that in the open ſtreet, was a quart of wine, think you, ſo conſiderable a thing as to tempt or corrupt a witneſſe of that quality? or the open ſtreet a fit place for ſuch a purpoſe where ſo many ſaw and over-heard us? Certainly if this Gentleman were ſo ignoble as to be corrupted with ſo poore a courteſie as a quart of wine in the open ſtreet; I am certaine his arreares of pay in Col. Fiennes owne private Chamber in Arundell houſe, where hee had faire promiſes to receive them, are farre more prevalent temptations to corrupt, and keep him back from appearing here in perſon, whither the Defendant might have brought him to teſtifie my tampering with him, had he pleaſed, he being ſtill in London, and under his command, though he will not appeare upon our ſummons to teſtifie the truth: But if he be ſuch a one, as Col. Fiennes would intimate him, (though I have a better opinion of the Gentlemans honeſty) that a quart of wine will biaſſe him more them truth, I ſhould rather want his teſtimony, then put him to his oath, were he now preſent: But being neither examined by us, nor yet intended to bee, this impertinent cavill ſounds more of Calumny then Iudgement.

But becauſe Col.3. Fiennes hath now given me this juſt occaſion, I ſhall in the third place (which otherwiſe I ſhould have concealed, but that his aſperſions have provoked me to alleadge it by way of juſt defence) truly informe your Lordſhips: Firſt, how Col. Fiennes and his Agents have tampered with, affronted, threatned, and abuſed our witneſſes: Secondly, what advantages, obligations, and engagements he hath upon his own witneſſes, which may probably ſway them to over much partiality in their teſtimonies, of which we are wholly deſtitute in reſpect of ours. Firſt, moſt of the materiall witneſſes in this cauſe were the Defendants owne Officers and Souldiers, from whom they expect not only future preferments, but their arreares of pay, which they were in danger to loſe if they ſhould either appeare againſt him, or he miſcarry in this caſe. VponUpon this ground not only Mr Haſſard, as you heard, was unwilling, and Daviſon refuſed to give in his teſtimony, but one Captaine Oland (as appeares by Captaine Haringtons depoſition) with ſundry other materialll witneſſes, denied to ſpeak what they knew: and ſome of his Officers ſince they came hither to witneſſe for him have ſaid, that if the cauſe went with him, (as they made little queſtion but it would) they ſhould have all their arrears paid, elſe they ſhould loſe them; Now whether the promiſe of arrears bee not a tampering with, and the loſſe of them a threatning or terrifying of witneſſes, we leave your Lordſhips to reſolve. Beſides Mr Sprigge (Secretary to the Lord Say) went to a Noble Knights lodging at Saint Albanes, produced as a witneſſe by the Defendant, that ſame morning he was to give in his teſtimony, with this ſtrange prologue to an evidence, that Col. Fiennes preſented his reſpects to him, and deſired him to come that morning to the Councell of warre to give in his teſtimony for him; and that his Lord likewiſe deſired to be remembred to him, and to let him know that 200 pound (of the 500) due unto him was ready for him at London upon his returne, and the reſt of the mony ſhould be ready for him as ſoon as it could be provided: which Captain Harington then preſent in the Knights chamber heard and depoſed; nor could nor did Sprig deny he delivered ſuch a meſſage, but ſaid he had ill intentions in it. To which Mr Prynne replyed, that whatever his intentions p. 58were, the words ſpoken at that ſeaſon, and upon that occaſion, tended more to corrupt a witneſſe, then his offring a quart of wine in the open ſtreet did (had he offred it as he did not) which was ſo much inſiſted on; And though he knew the Knight ſo well, that no offers whatever could corrupt him; yet how ſuch ſpeeches might work on other witneſſes who expected debts and arrears from the Col. he could not divine; and thoſe who durſt uſe ſuch tempting ſpeeches ſo openly in St. Albanes during the Triall, would probably make uſe of the like or worſe temptations in private to witneſſes, to corrupt or take off their teſtimony. However the Court by this might clearly diſcerne, which ſide was moſt guilty of tampering with witneſſes. Thirdly, that ſome of our witneſſes ſent for thither by the Defendant, had beene openly abuſed, affronted, quarrelled by the Defendant and his witneſſes, even in the Councels preſence and elſewhere; as namely Captaine Bagnall; who though an extraordinary friend to the Defendant, (for whom he took two journeyes to London for a Commiſſion at his own charge, and raiſed a Company to defend the Towne) yet meerly for teſtifying the truth impartially, was ſtrangely queſtioned and affronted by the Defendant himſelfe, abuſed with ill language, taxed with perjury, quarrelled by Scotten who gave him the Lye in the Councell Chamber before your Honours were departed thence, challenged, ſcorned, reviled, threatned to be miſchieved, (for all which affronts we crave your juſtice.) And if our witneſſes be thus affronted, menaced, abuſed in your very preſence, how think you were others dealt with behinde your Honours and our backs, to ſtrangle truth? A vehement argument all hath not been rightly carried on that ſide.

2. Conſider the great difficulties on our parts to procure, the impoſſibilities to ſuborn the witneſſes we produce. Firſt, all our witneſſes for the moſt part are meere ſtrangers to us, all of them better known and more obliged to the Defendant then to us: they are perſons diſ-intereſted, diſ-engaged, who neither gaine nor loſe by the Triall, however the ſentence goe; they were never under our ſervice, power, or commands, moſt of them were ſuch who ſerved the State gratis, and were no mercenaries in that ſervice. We are no wayes allied to them, have no command over them, no arrears or debts to pay them, no rewards or preferments to beſtow upon them, no engagement to allure or enforce them; Whereas on the contrary, the Defendant hath all the advantages and bonds that can be tending to partiality over his witneſſes. Many of them are teſtes domeſtici, as his brother, kinſmen, ſervants, foot-boyes; moſt of the reſt his Officers and Souldiers, againſt whom we excepted as incompetent; Firſt, becauſe they were parties in this caſe, joyning with the Defendant in a Petition to his Excellency for this Triall, which was granted at their requeſt as the Proclamation of his Excellency atteſts. Secondly, becauſe they were Confederates and equally guilty with him in this Treaſon of ſurrendring Briſtoll, moſt of them being of his Councell of warre, and conſenting to this act; which if it prove capitall and criminall in him, will likewiſe be ſo in them; In ſwearing therfore to acquit him of this Treaſon in which themſelves are involved, they doe in verity ſweare to acquit themſelves, and one to juſtifie and excuſe the other, which ought not to be admitted; for then the fowleſt treachery that is, might and would be excuſed, yea the greateſt Traytors acquitted, if one might teſtifie for the other in p. 59that particular crime whereof they all ſtand guilty.

3. Becauſe they all depoſe, as for their owne lives and ſafeties, ſo likewiſe for their own honour, reputation and repairation; ſome of them in their ſpeeches now, and moſt of them in their Petition to his Excellency, demanding reparation in their honour from us by this very Triall: and ſo are both parties and witneſſes in this reſpect, very unequall to be admitted.

4. Some of them have carried themſelves as paſſionately in this caſe, as parties, in menacing and abuſing our witneſſes, and our ſelves too, threatning no leſſe then hanging to us for queſtioning this ſurrender, if the Defendant be acquitted; and can ſuch be competent witneſſes?

5. He hath very ſtrong obligations upon moſt of them, the bond of conſanguinity and alliance; they are his kinſmen: of ſuperiority and command; they were his Officers, Souldiers, Servants, advanced by him at firſt, and preferred, or promiſed preferment by him ſince; the bond of ſundry debts and arrears due to them from him, which they are promiſed to receive if he be acquitted, and expect to loſe if once condemned. And what ſtrong engagements, what great advantages all theſe are to tempt or corrupt witneſſes on his part, and ſilence them from teſtifying ought againſt him on our part; and how farre forth ſuch witneſſes who appeare thus to be parties ſhall be allowed of in this caſe (eſpecially ſuch as are Participes criminis (adjudged incompetent by all Lawes) and guilty of the ſame ſurrender, we ſhall humbly referre to your juſt conſiderations.

3ly.Object. 3. The Defendant endeavoured to anſwer an objection made by Mr Prynne; To wit, that it muſt needs be cowardly ſurrendred, becauſe the Enemies that very morning were valiantly repulſed in all places (but that one where only an hundred and fifty of them entred) with the loſſe of 700 mens lives, and as many more wounded, whereas the Garriſon then loſt not above 3, or 4, and had ſcarce any one man dangerouſly hurt in the aſſault; So as the Enemy by this great loſſe was farre weaker, the Garriſon much ſtronger, and more couragious then before; Whereto he briefly anſwered, that the ſlaying of 700, and wounding 700 more, was not ſo great a loſſe and diſcouragement to the Enemy, as the entry of the Line was an encouragement.

To which Mr Prynne replied,Anſwer: Firſt, that thoſe who entred the Line, by their owne confeſſions were ſo farre from receiving encouragement by it,**Atteſted by Nicholas Collins and Mich. Spark Senior. that they gave themſelves all for dead men, and had no other hopes but to be quite cut off. Secondly, their companions diſcouraged with the generall repulſe in all other places,††See Serieant Hills Depoſition. knew not of their entry in two full houres ſpace, during which time their powder was quite ſpent, that they might have beene all cut in pieces had the Defendant done his duty. Thirdly, a**See Nich. Collins teſtimony. whole Regiment of their horſe retreated foure miles off, with a reſolution never to come on againe; therefore the entry of ſo ſmall a party, compared with their great loſſe, could be but a very poore encouragement, ſince they might have beene ſo eaſily repulſed at the firſt, and ſent back by weeping Croſſe unto their retreated Companions.

After this he deſcended to his Arguments, to prove the ſurrender not cowardly; the chiefe whereof are publiſhed in print (by himſelfe or his Agents) in The Check to the Checker of Britannicus, with the ſubſtance of his whole defence, abſtracted (no doubt) out of his owne Notes.

p. 60His firſt Argument was this,Argum. 1. That he was no coward, as appeared; Firſt, by 1his apprehending and ſending away Col. Eſſex: Secondly, by his apprehending and executing the Conſpirators at Briſtoll in the midſt of the City, even at noone day: Thirdly, by quelling the Malignants, and diſarming the Traine-Bands of the City: Fourthly, by his valiant behaviour at Worceſter, where hee and his brother, when the Forces were there routed, were ſome of the laſt Officers that came off the field: Fifthly, by his charging at Keinton Battell, one of the next to Sir William Belfoure up to the very Cannon of the Enemy, when the horſe killed the Canoneers, as they lay under the Carriages; and by other following particulars: Ergo, he did not cowardly ſurrender Briſtoll.

To which Argument, Mr Prynne Replyed:Anſw. 1. Firſt, in generall, That they did not charge him in the Articles, to be a coward, which was not now in iſſue; nor yet, that hee had ſhewed himſelfe cowardly in all Actions ſince he was Governour of Briſtoll; But only, That he had cowardly ſurrendred Briſtoll: And, in hoc individuo he did and might deale cowardly, though he might be valiant in other particulars. This is that miſtaken Paſſage the Check to the Checker much triumphs in; let him in Gods name make his beſt advantage of it, to repaire the Defendants honour if hee can.

2Secondly, That the Argument was a groſſe Nonſequitur, for as a very coward, may now and then doe valiantly upon occaſion, and yet be no valiant man; (as ſometimes deſperatio timidos fortes facit, an experimentall proofe whereof we finde in Timerous Staggs, who runne away at the barking of the ſmaleſt curre, yet will encounter both dogges, horſes, men in extremity when they are at a bay, and can runne no further;) ſo a valiant man may ſometimes commit a cowardly action, and yet be no habituall coward. To put this out of queſtion, We have a memorable example in the Apoſtle Peter, who though he were of a bold reſolute ſpirit, and no doubt the ſtouteſt of all the Apoſtles; as appeares by his adventuring (at Chriſts command) to aaMatth. 14. 28. to 32.Matt 14:28–32walk out of the ſhip upon the Sea it ſelfe in the midst of a ſtorme, (which hee though the Defendant with all his faith and valour would ſcarce have adventured to doe,) his reſolute telling our SaviourbbMatth. 26. 33. 34. 35. Ioh. 13. 37. 38.Matt 26:33Matt 26:34Matt 26:35John 13:37John 13:38 That though all elſe ſhould be offended and forſake him, yet he would not; And though hee ſhould die with him, yet he would not deny him (which all the other Apoſtles likewiſe proteſted each for himſelfe.) By ccMatth. 26. Mart 14. Luk. 2…. Iohn 18.Matt 26Luke 2John 18his reſolute drawing out his ſword to reſcue Chriſt when he was apprehended by the High. Prieſts ſervants, his cutting off Malchus eare therewith (which is more then appeares the Defendant yet did to any Enemy,) his not putting up his ſword, nor giving over fighting till Chriſt commanded him; and by his following our Saviour into the very High-Prieſts Hall, when the other Diſciples forſooke him and fled: (all acts and Arguments of extraordinary courage:) yet after he ſaw Chriſt brought into queſtion for his life, hee ſuddenly degenerates ſo farre from his former magnanimity, through a puſilaminous feare then ſeiſing on him, that at the very voice of a ſilly maide, and a High-Priest ſervant, he no leſſe then thrice denyed the knowledge of his Maſter Christ, and that with bitter Oathes and Execrations; Should Peter in this caſe argue:

I was valiant when I walked on the Sea, in the Chamber when I told Chriſt I would rather die then deny him, in the Garden, where I fought for him, and in p. 61following him into the High-Prieſt Hall, whether the other Diſciples durſt not accompany me: Ergo, I did not cowardly nor unworthily, in thus denying him thrice with Oaths and Curſes in the High-Prieſts Hall?

Certainly, this were a moſt irrationall falſe Argument, becauſe courage in ſome Actions, is no negation or extenuation of cowardize in others, almoſt in the ſelfe-ſame nick of time. Yet this is Col. Fiennes objected Argument; I have ſhewed my ſelfe couragious, (as well as Peter) in ſome Actions; in removing Col. Eſſex, executing the Delinquents, diſarming the Malignants of Briſtoll, in the fights at Worceſter and Edgehill; yea, altogether as valiant as Peter, in my vaunting words and promiſesaaSee the Depoſitions of Col. Stroude, 11. Powell, Captaine Bagnall, Mr Haſſard and others.. That I would diſpute every foot of ground with the Enemy to the utmost, who ſhould winne it from me by inches; that my Flag of Truce ſhould bee my winding ſheet: that I would keep the City, or it ſhould keep me, or I would lay my bones therein? (Oh brave vaunting Peter!) yea, I was pretty full of courage during the ſiege, till the Enemy entred the Line, and then I was juſt like Peter entring the High-Prieſts Hall; I followed the Enemy a far off, and fell from fighting, to Parling; from defending, to ſurrending the City and Caſtle; before any Out-Fort taken, or one ſhot or aſſault made againſt City or Caſtle: Ergo, I did not cowardly or unworthily ſurrender them now, having ſhewed my ſelfe ſo valiant in deeds before.

But ſince Peters Priſtine valorus acts, ſpeeches, did no wayes mitigate nor extenuate, but aggravate his ſubſequent cowardly denyalls of Chriſt, ſo will the Defendants his ſurrender.

Thirdly, his forementioned valorous exploits have no relation at all to the 3ſurrender of Briſtoll, being of a different nature from them, his proweſſe therefore in the one, can never expiate, nor diſ-affirme this cowardize in the other, the only thing we now charge and prove, theſe other objected Actions being not here in queſtion.

Fourthly, He gave this Anſwer to the objected particulars; ſo farre forth only 4as they were applyed to Briſtols ſurrender: Firſt, That the ſudden ſurpriſall of Col. Eſſex, being done at abbSee the full Declaration, &c. p. 4. 5. private houſe out of Bristoll, when the Defendant had his Troops about him, and Col. Eſſex only three or foure ſervants neare him; was a greater act of prudence then courage, and a man not really valiant would have done as much: Secondly, That when hee apprehended the Conſpirators, he had the abſolute Command of the City and Caſtle, a ſtrong Garriſon in both, and the major part of the City and Countrey ſiding with him: It was therefore no great argument of extraordinary valour to apprehend them being but few in number, weak in power, and ſuddenly ſurpriſed at unawares. And when he executed them, all the Malignants were diſarmed, the whole City, Country generally incenſed againſt them for their horred Treachery, and their party unable to make the leaſt reſiſtance, ſo as a childe might have put them to death as ſecurely as the Defendent. Therefore this could be no convincing evidence of his courage: Thirdly, That the Malignants were quelled by the diſcovery of the Plot; and the diſarming of the Traine Band, to arme his own ſouldiers, and beſt affected Citizens, was by the generall conſent of the Mayor, Sheriffes, and moſt part of the Citizens, after the conſpiracy detected without any the leaſt reſiſtance; Ergo no act of courage, but rather of diſcretion or diſtruſts: p. 62Fourthly, That at Worceſter, all the horſe were routed and fled, and his own and brothers Troops among the reſt, is no great Argument of their valours, which received ſome blemiſh by that action: And that hee and his brother were ſome of the laſt Officers of horſe who there came off the Field, it might be, as well becauſe they were in the reare of all the horſe, and ſo could not poſſibly flie out of the field before the reſt, as by reaſon of any extraordinary valour in them more then others, and ſo no convincing proofe of valour in them. Fifthly, That his valiant charging in Sir William Balfoures Regiment at Edgehill where every man did valiantly, and none turned their backs in all that Brigade, (whereof he principally glories, and the Check to the Checker, moſt tryumpheth in) can be no ſpeciall proofe of his courage, ſince every coward will charge in Company where no man turneth his back, and where there is greater danger in flying then charging: However admit it were good evidence, yet this is a very ill ſequell if put into a logicall forme.

Col Fiennes charged valiantly with Sir William Balfoure at Edgehill: Ergo, he did not cowardly ſurrender Briſtoll.

His ſecond Argument to prove the ſurrender not cowardly,Argum. 2. was his not quiting of Bristoll, immediatly upon Sir William Wallers defeat at the Deviſes, and his raiſing of men, armes, and perfecting the works even after that to defend it, when many of the Countrey Gentlemen left the Town, and marched to London, with Sir William Waller.

To which Mr Prynne anſwered:Anſw. 1. Firſt, that hee did but his duty in all this, which was rather an Argument of his deligence then courage.

Secondly,2. That it had been the greateſt treachery and cowardize in the world upon Sir Williams bare defeat, to quit a City of ſo great conſequence, which hee was charged to keep by his Commiſſion, and in fortifying whereof hee had ſpent ſo great coſts, before the Enemy came before it: who might probably, as things then ſtood, have no reall intention preſently to beſiege it, upon that defeat.

Thirdly,3. Extraordinary diligence in fortifying, is the greateſt Argument of feare and cowardiſe ifccHence as Plutarch (writes the Spartians would not wall about their City, placing their ſafety in their Armes, not walls.) not ſeconded with anſwerable proweſſe in defending what is fortified: a coward will ſooner provide Armour of Proofe, then a truly valiant man; ſince therefore the City was no longer defended, when fortified and manned, this reaſon will rather convict then acquit him of cowardize.

Fourthly, The true reaſon why ſo many Gentlemen then diſerted the City, was (as themſelves have confeſſed) not for that they deemed it untenable; but becauſe they feared and diſcerned, the Denfendant intended not to keep it to the laſt,4. but to ſurrender it to the Enemies hand; which he hath clearly enough confeſſed in his Anſwer.

Fifthly,5. This Argument in verity, is no more in effect, but a Governour provides Armes, Souldiers, Canons, Ammunition, to defend a Town of importance, or to encounter the Enemy, and then ſurrenders it (as he hath done) in leſſe then three dayes ſiege; or runs away after he hath ſtood a charge or two; Ergo, he did not cowardly herein, becauſe he provided men and Armes, whoſe valiant uſe, not diligent preparation, is the only proofe of valour.

His third argument was;Argum. 3. No man could have expected leſſe ſafty of conditions then himſelfe, he only being excepted out of the generall pardon offered p. 63to the Souldiers and Citizens; Ergo, he ſurrendred it not cowardly.

To which was Anſwered:Anſwer 1. Firſt, That it is probable his ſpeedy, unexpected ſurrender of the Town and Caſtle, before extremity, proceeded either from a fear to loſe his life in holding them out till the laſt, or a deſire to purchaſe his Peace and Pardon out of which he was formerly excepted from the King, with ſo rich a prize of conſequence as Briſtoll was, which would moſt certainly procure it, with infinite advantage to the King, and greateſt prejudice to the Parliament. Secondly,2. That if he could have expected leſſe ſafty of conditions then any other, for the reaſon alledged, this ſhould have rather engaged him, to hazard his life in defending it to the utmoſt extremity; then to yeeld it upon any termes prejudiciall to his own ſecurity, which is firſt provided for in the Articles.

His fourth was,Argum. 4. That he could never have undergone more danger in the Caſtle had he held it, then he did in the Guards, which he diligently viſited; Ergo, he ſurrendred it not cowardly.

To which was Anſwered:Anſwer 1. He received no hurt at the Guards, and loſt but 6, or 8 men at moſt in the ſiege. Ergo, if he might with as little danger and loſſe have held out the Caſtle, his crime and cowardize was the greater in ſurrendring it ſo diſhonourably without ſtroke, or once retiring to it.

His fifth,Argum. 5. Was from his cariage when the Enemies entred, to prevent whoſe taking the City, he had only two meanes left. The firſt was, to fire the Suburbs, for which hee iſſued out a Warrant (as his univerſall witneſſe for every occaſion Lievtenant Clifton affirmed, a meere party and Delinquent, who adviſed the Parley, ſurrender, and called all off the Line upon paine of death:) which warrant was not executed,See the Relation, p. 9. but revoked for want (as he alledged) of men to fire them: The ſecond, was to fire the City behinde them, and ſo to retreat into the Caſtle; which he could not poſſibly doe without the death of many innocents, men, women, children; and ruining of many mens Eſtates: A fact ſo horrid, that his tender conſcience would no wayes permit its execution, hee being loath to begin ſo ill a preſident, which would have infinitely redounded to the Parliaments diſhonour: Beſides, the Caſtle being not large enough to containe halfe his horſe and foot, and the ſtreets very narrow, he could not have retyred into it, without great difficulty and danger of being cut off by the Enemy, and thoſe horſe and foot which could not be received would have been utterly loſt, and expoſed to the Enemies cruelty. Upon which conſiderations only, not out of any cowardize, he did by Cliftons adviſe call a Councell of Warre, and propound a Parly, whereupon the ſurrender enſued. Therefore it was not cowardly.

To which Mr Prynne replyed: Firſt, That it is apparent by this Argument, that if the Suburbs had been fired, the City, Caſtle might have been ſaved, and the Enemies beaten out when lodged in the Surburbs: Therefore he ought in this caſe both by thedd9. E. 4. 35 b. 12. H. 8. 16. b. Br Treſpas 406. Dyer 36. b. Common and Marſhall Law, to have fired the Suburbs to preſerve the City, Caſtle, and muſt anſwer his negligence in not doing it; his want of men to fire the Suburbs being a frivilous excuſe, ſince he had at leaſt 2300 Garriſon Souldiers; and Mr Haſſard the Gunner (as he acknowledged to divers,) and Major Wood, with others offered to beat, or fire them out of the Suburbs but could not be permitted, though it might have been done with eaſe, the houſes being combuſtible, moſt of them built with Timber, and that part of the Suburbs not very large.

p. 64Secondly, That between the part of that Surburbs and body of the City, there was a Key on the weſtſide of Froome-bridge, unfordable by horſe or foot every Tyde, by reaſon of the waters, and at low-water too, through the deepneſſe of the mudde, being ſo deep in moſt places, that men muſt ſtick faſt in it (as ſome as the Conſpirators did upon the diſcovery of the conſpiracy, who were taken eeAtteſted by Col. Popham and others.ſticking in the mudde;) That there is no matching over the Key in File or Rank, but only one by one, in confuſed order. That on the Key ſide next the City, there is a wall of ſtone neare 8 or 9 foot high above the mudde, which no horſe can enter nor no foot ſcale, unleſſe at a ſlip or two, which are but narrow, and ſtand 4 or 5 foot above the water: That there are houſes all a long the Key, which commanded the Colledge ſide where the Enemy entred in ſuch ſort, that none of them could offer to wade over the Key, but they might be cut off with eaſe, that two or three Pieces of Ordnance planted at the head and lower end of the Key, would ſo ſcouer all that paſſage, that none could have paſſed over without loſſe of life, and the paſſage, there, would have been ſo difficult, that one hundred men would eaſily have kept out ten thouſand, all which was atteſted by Col. Popham, Lievtenant Col. Paleologus, Major Wood, Lievtenant Col. Andrewes, Cap. Bagnall, and ſome of his own witneſſes upon croſſe examinations: therefore there was no danger of the Enemies entry there. For Frome-gate it ſelfe, it had a new Percullis, and after the Enemies entring the Line, and late ſally on them, the very**Ioan Battin, Mrs Haſſard. Maides and Women, in the face of the Enemy, made a Barracado and Bulwork againſt it 15 or ſixteen foot thick with earth and ſacks of Wooll, to keep them from entring there, being their only paſſage into the City from that Suburbs; That above the Gate was the River Froome (which runnes under it) with a Wall and Houſes between the City and it, ſo as the Enemy might eaſily have been kept from entring the body of the Towne, and could not have entred it, without infinite loſſe and diſadvantage.

Thirdly,3. that had they gotten over the Key, or Froome River into the body of the City, yet the ſtreets were ſo narrow and diſadvantagious to the Enemy, that their paſſage might have eaſily been hindred, the ſtreets blocked up with caskes, carts, ſleids, ſtooles, and a Piece of Ordnance or two placed at the head of every ſtreet, and the houſes lined with Musketers would have ſo ſcoured and ſecured it, that the Enemy muſt have ſuſtained extraordinary loſſe, at leaſt 50 or an 100 men for one of ours, as they loſt before in the ſtorming. Beſides, they muſt have all marched up the hill, in paved ſtreets which are ſo ſlippery, that the foot could have hardly ſtood to charge, and the horſe would certainly have ſlipt and fallen: in regard of which diſadvantages, our men having the hill, flankers, the ſhelter of houſes, and charging downwards, muſt needs have repulſed them with extraordinary loſſe had they forcibly entred, and made a moſt ſafe retreat into the Caſtle at any time when they ſaw juſt cauſe, without any ſuch difficuly or danger as was ſuggeſted.

Fourthly,4. Admit they had taken the body of the Town beyond the Key, adjoyning to the Caſtle, which they could not have done without exceſſive loſſe and great difficulty, yet all that part of the Town being commanded either by the Caſtle, or other Forts and Out works all in our profeſſion (as Clifton himſelf with other of the Defendants Witneſſes confeſſed, and Major Wood proved) they could p. 65not poſſibly have held it long, and would have been in worſe condition with in it then before, and ſo no abſolute neceſſity of firing it, had not his courage and conſcience ſerved him to doe it.

Fifthly,5. For his horſe and foot, incontainability in the Caſtle, in caſe he had been forced to retire into it, there were ſundry other places to beſtowe them in, beſides the Caſtle: As firſt, the body of the City adjoyning to the Caſtle, which would have billited them all till the Enemy had forced it: Secondly, that part of the Suburbs, under the command of the Caſtle next to Lawfords Gate, diſtinct from the body of the City if taken, and very defenſible, the Caſtle, and Outworks then remaining ours: Thirdly, the Out-Forts, where the Guards might have been doubled or trebled as there was cauſe, eſpecially now when he had an overplus of men that he know not how to beſtow: Fourthly, that part of the City beyond the bridge in Sommerſet-ſhire ſide, which was very capacious, able to containe all his ſupernumerary foot and horſe, though the other Suburbs and body had been taken; which part (the bridge being broken down or defended) had been inacceſſible, ſtrong, and tenable for a long time againſt all his Majeſties Forces, we having then all the Out-Forts in poſſeſſion which commanded other parts of the Town, and Ratcliff Church, Tower-Harris, and the Caſtle (three extraordinary ſtrong Forts) commanding and ſecuring that part beyond the bridge; which being fenced with extraordinary ſtrong Out-works, and deep watrey Dikes, Tower-Harris, and Ratcliffe Church on the one ſide, with the River, and Caſtle on the other ſide, and ſtrongly garriſoned with the Souldiers retired from other parts, had been almoſt impregnable, and might have held the Enemies play for ſundrey Moneths, had the Defendant reſolved to hold it to the utmoſt. Having therefore ſo many ſeverall ſafe retreats, and receptacles for his horſe, foot, and not making uſe of any of them, though hee promiſed to diſpute every inch of ground with the Enemy (as he might have done with honour and great advantage) his pretence is falſe, his ſurrender cowardly beyond all excuſe.

Sixthly,6. He hath oft inculcated this to your Honours, that the Citizens were generally very malignant, and diſaffected to the Parliament; and we have proved, that the**Iames Powell, Abel Kelley, William Deane, Mrs Haſſard, and others. moſt of the beſt affected, had carried their eſtates and three months proviſion into the Caſtle, where their perſons and goods were by the Defendant promiſed to be ſecured. His forbearing therefore to fire the City in caſe he had bin neceſſitated to it, proceeded not from any publike care he had of the Parliaments friends or Kingdoms ſafety, but from his private reſpects to the perſons and eſtats of Malignants; which he would rather carefully preſerve to enrich, encourage, and ſtrengthen the Enemies, then fire or endanger to preſerve the Parliament and Kingdome: Mercy and compaſſion are doubtleſſe commendable vertues in a Govournour, who ſhould not uſe cauteries or firing till the utmoſt extremity: But when ſuch an exigency happens, that a City might be fired, or both it and the Kingdome loſt or hazarded, it is fooliſh cruelty not Chriſtian mercy, to bee over-pitifull in ſuch a caſe. It is a cruell deſtructive mercy to ſave a City (eſpecially a Malignant one, as this is averred then to have been) to deſtroy a Kingdome, yea, our Religion, Lawes, and Liberties with it: Better the greateſt part of the City had been turned into Aſhes to preſerve the Caſtle and others parts of it to the p. 66Parliament, and ſecure the Realme, then to ſurrender the whole ſo cowardly ſo unexpectedly, to the loſſe of the Weſt, and Kingdome in all probability.

Seventhly,7. the Defendant well knew of what extraordinary concernment the loſſe of Briſtoll would be to the Kingdome, of what infinite advantage to the Enemy, as is evident by his owne Letter to my Lord Say (dated March 20 1643. before it was fortified or fully garriſoned) publiſhed in his printed Relation pag. 13. where thus he writes.

May it pleaſe your Lordſhip to underſtand firſt the importance of this City of Briſtoll, &c. The Enemy hath lately caſt his eye upon it, prompted by the witty malice of our Malignants, to eſpye his advantage: If he poſſeſſe this City, he will reap theſe benefits by our loſſe. 1. He will get much Money, Armes, and Ammunition in a more cheap and leſſe hazardous way, then he can have them out of the Lowcountreyes; all which he will pay for with Monopolies, and engroſments of Trade, things with which the great ones of this Towne have beene well acquainted, and are therefore Malignant. 2. If hee gaine this Town, he will**It himſelfe or ſome of his had been Governours of it. ſoone ſubdue Gloceſter, and become maſter of all the Tract between Shrewsbury and the Lyzards point in Cornwall, a Quarter ſo plentifull, as his plundering Army yet never ſaw. 3. He will become maſter of all the Traffick of that Inland Sea the Severn, and make all the ſhipping both of the Welſh and Engliſh Coaſts his owne. 4. His Neighbourhood to Wales will from time to time ſupply him with a body of foot. 5. Wee ſhall loſe a great Port Towne very important for the ſervice of Ireland, and Fit to give Landing to the Rebels of that place, or any other Enemy. Since therefore hee knew this City to be of ſo great importance to the Kingdome, and the loſſe of it ſo extraordinarily advantagious to the Enemy, he ſhould in this reſpect have held it out to the utmoſt extremity, and rather hazarded the firing of it by the Enemy which would not have done it, (eſpecially being Malignant) or himſelfe, then quitted both it and the Caſtle to, with all the Ammunition, Canon, Armes, Proviſions, Colours, Ships, Merchandize, Wealth therein, upon ſuch poore diſhonourable termes, before any Out-fort taken, or one ſhot made againſt the City or Caſtle walls; he wanting nothing but courage to defend them, the Enemy having loſt ſo many, and himſelfe ſo few in the former ſtormings.

His ſixth Argument was,Argum. 6. that he ſtood in places of greateſt danger with his Troop, neare Alderman Iones his houſe, where a Granado falling into the midſt of his Troop, and hurting no man, he thereupon encouraged his ſouldiers, ſaying, that God did protect them.

To which was anſwered,Anſwer. 1. That not one of his Troop (for ought appeares) was ever hurt in that or any other place where he ſtood with them; therefore the danger was not very great. 2. That this place under Alderman Iones his houſe, was more then Canon proofe, and moſt ſecure againſt the Enemies ſhot, which the houſe and Garden walls guarded off being between the Enemy and his Troop; therefore no place of danger but ſecurity. 3. That this Granadoes falling in among the Troop at that time, was meerly caſuall; and hurt not any though it frighted many, and made the Defendant and his Troop preſently to remove from thence, as his owne witneſſes depoſed. 4. Himſelfe never charged the Enemy in perſon with his Troop after their entry within the Line; his ſtanding therefore with them in this ſecure place before the entry, was no great proof p. 67of his valour, much leſſe that the ſurrender was not cowardly.

His ſeventh Argument,Argum. 7. to prove the ſurrender not cowardly, was, That the Parley and Surrender were both agreed on by the Councell of warre; Ergo not cowardly.

To which was anſwered,Anſwer 1. That himſelfe was both the**See Col. Stroodes Depoſition. his Letter to his Excellency, and Remonſtrance firſt mover, perſwader of this Parley, this ſurrender, and the principall man that advanced it, drawing on the reſt to conſent to it, and not making the leaſt oppoſition againſt it. 2. That the Councell of war wherein the Parley was firſt propounded, was not generall, as it ought to have been, but private, few of his Officers or the Gentlemen there, having notice of it, till a Parley was concluded, and a Drummer diſpatched twice to the Enemy before they would take notice of it. At this Councell no Countrey Gentlemen were preſent, but Sis Iohn Horner, who gave no vote andaaCol. Stroods Depoſit, confirmed by Sir Iohn Horners teſtimony. Col. Stroode who voted againſt it, and not above ſix or ſeven Officers, of which Lievtenant Col. Daviſon, and Major Holmes were two, who oppoſed the Parley; as for Mr Edward Stephens (whom Col. Fiennes averred in bbRelations p. 9print to be preſent at it) he denies upon oath, that ccSee both their Depoſitions.he had ever any notice of it; and ſo doth Col. Stephens to. Being therefore ſuch a private Conventicle and no generall Councell, and theſe thus voting againſt the Parley, it is a greater evidence then diſproofe of a Cowardly ſurrender. 3. The Defendant and his brother Iohn, to circumvent the Councell, and draw them on both to a Parley and ſurrender, miſinformed them, that there were but 20 barrels of Powder, and 400 weight of Match left: as he confeſſeth in his Anſwer to the eight Article, ddSee Maior Dowets teſtimony.commanding Mr Haſſard (who kept the ſtores) to affirme there was no more, when as you have heard it proved there was above three times as much more then in the Caſtle. His miſ-information therefore being the chiefe motive to ſway the Councell to this Parley and ſurrender, their conſents will not excuſe but aggravate his Cowardize and trechery in ſeducing them. 4. If the Town and Caſtle were tenable, ſufficiently provided with all neceſſaries for a defence, and not reduced to extremity, as we have proved, the ſurrender by a Councell of warre will not make the Cowardlineſſe and trechery leſſe but greater; and ſubject the whole Councell to cenſure, as appeares by the Caſes ofeeSee the Doom of Cowardize. Weſton, Gominyes, and others adjugded in Parliament: Otherwiſe, if this plea ſhould be admitted for a juſtification, a Governour and his Officers might ſafely without danger betray any Fort or place through Cowardize or trechery by voting it in a Councell firſt, and then putting it in execution.

His eighth Argument was,Argum. 8. That when he ſent to the Enemy for a Parley, and their Hoſtages came to Froome-gate which was barracadoed up, they ſwore, God damne us, we will come in at Froome-gate (which was the neareſt way) or have no Parley at all; whereupon he ſent them this reſolute anſwer, that they ſhould not come in there, but at Newgate, which they were enforced to doe after much conteſt; Ergo the ſurrender was not Cowardly.

To which Mr Prynne anſwered;Anſwer. 1. That at that time Froom-gate wasffSee the Depoſitions of Ione Battin and Mrs Haſſard. barracadoed up with a Bulwark of earth and wooll-ſacks 15 or 16 foot thick to keep out the Enemy, made by the very women and maids, with the help of a few men, in a ſhort ſpace; and when the Hoſtages came to that gate, the work was raiſed ſo high, that Captaine Taylor, the Defendants owne witneſse confeſſed, p. 68he could not ſee nor conferre with them over it, but was enforced to goe to ſpeak with them through a window, when he received their God-damne-me meſſage, that they would come in at that gate, or elſe returne: from which window likewiſe he returned the Governours anſwer to them. Now to demoliſh ſuch a Barracado as this, to let in theſe peremptory Hoſtages, and the Enemy too, who might then have cleare paſſage into the City, had been ſuch an undiſcreet and cowardly Act, as was not only below the ſpirit of a Governour, or ſouldier, but of a ſucking childe, and would have argued the Defendant (if condiſcended to) a man utterly deſtitute, not only of courage but common diſcretion. 2. This braving unreaſonable requeſt argues plainly, that the enemies had a very meane conceit of the Defendants valour, elſe they would never have preſumed to ſend him ſuch a diſdainfull meſſage, which an Heroick ſpirit would have ſo far reſented, as not to brooke a Parley upon any termes; and his not yeelding to it, is no greater an evidence that the ſurrender following was not Cowardly, then that the building of Tinterton Steeple was the cauſe of the encreaſe of Goodwin ſands.

His ninth Argument was his courage and ſpeeches at the Parley,Argum. 9. wherein he confeſſed, 1.**See his Letter to his Excellency, p. 3. 10. called a Counceil of warre, and propoſed to them our condition, and beſides laid open unto them our ſmall ſtore of Ammunition, &c. That the motion of the Parley proceeded meerly from himſelfe. 2. That the Parley was concluded on before ever the Maior repaired to the Councell. 3. He ſaid, the Maior was extraordinary fearfull, and preſſed earneſtly for an agreement with the Enemy. 4. That when the Enemies Commiſſioners at the Parley, upon the motion of Captain Birch, that the Citizens might have liberty to carry away their eſtates if they pleaſed, ſtuck at this demand, hee thereupon roſe up, and with great earneſtneſſe proteſted, that he would break off the Parley, and rather loſe his life, AND HOLD AND PUT IT TO THE UTMOST EXTREMITY, then not provide for the ſecurity of the Citizens eſtates: which ſpeeches he proved by the teſtimonies of Captaine Birch, and Mr Prickman. Ergo he did not cowardly ſurrender the Town and Caſtle.

To which Mr Prynne replied;Anſwer. 1. That the motion of the Parley proceeding originally from himſelfe before any ſollicitations from the Maior or Citizens, argued that himſelfe was more fearfull then the Maior, though thus extraordinary timorous; and that both the Parly & ſurrender proceeded from his exceſſive fear. 2. That we had here confitentem reum, that he held not the Town till utmoſt extremity, as his duty bound him. For he told the Commiſſioners, if they would not yeeld to ſecure the Citizens goods (whom he frequently brands for deſperate Malignants) he would then venture his life, and put and hold it to the utmoſt extremity: therefore he held it not by his own confeſſion till ſuch extremity; and ſo by the very Articles of War, and conſtruction of Law, is guilty of a Cowardly, and Traytorly ſurrender, for which he ought to dye. And here obſerve the ſtrange temper and guilt of the Defendant: My Lords, hee was conſtituted Governour of Briſtoll, not by the Maior and Citizens, but his Excellency and the Parliament, to preſerve it from the Enemies hands, rather for the Kingdomes ſafety, then ſecurity of the Malignant Citizens goods. He had formerly oft proteſted to the beſt affected Souldiers and Citizens, that**Iames Powell, Col. Strood, Capt. Bagnall, Abel Kelley. hee would diſpute every inch of ground with the Enemy, from the Out-works to the gates, from thence to the Caſtle, whither he would make his laſt retreat, and there lay his bones, making his winding ſheet his flagge of truce, and the like, for the Common good and ſecurity of them and p. 69the Realm. But now alas, as ſoone as the Enemy entred the Line, Heu quantum mutatus ab illo? he became a quite other man, and forgetting all former valiant promiſes, heroick reſolutions for the Republicke, he preſently ſent for a Parly, and diſputes not ſo much as one inch of ground with the Enemy neare the Gates or body of the City, retires not one foot towards the Caſtle, & inſteed of adventring his life to preſerve the City for the Parliaments and Kingdomes ſafety againſt the Iriſh Rebels, and Welch Malignants incurſions, hee hath not ſo much as one word or thought tending that way: but all publike engagements ſet aſide, he now only lookes after the ſecurity of his own perſon, and of the Malignant Citizens perſons, Eſtates for the Enemies future advantage, and rather then theſe ſhall not be ſaved, he now proteſts he will loſe his life, and put all to utmoſt extremity. Had hee really intended to make good this his proteſtation for the Citizens benefit and ſafety, in caſe the Enemies had denied his demand in their behalf, (which I much doubt of, ſince notwithſtanding his foreſaid Proteſtations, he would not doe it for the publike;) I humbly conceive hee ought much more in point of honour and duty to have executed it for the whole Kingdomes preſervation and utility; which ſince he did not really perform nor intend to do it, you have here confitentem reum, an evidence dropping from his own mouth ſufficient to condemn him: And therefore my humble motion to your Honours is, that his perſon may preſently be ſecured as by Law it ought. The rather, becauſe it plainly appears by all the cariages of the Defendant from the enemies firſt entry till his return to London, that this ſurrender proceeded meerely from timidity and cowardize at the beſt, as I ſhall evidence by theſe particulars.

Firſt, by hisaaCap. Bagnal William Deane. Will. Whithorn. calling the Souldiers from the Line under paine of death, and 1not permitting them preſently to encounter the Enemy, as he was importuned by divers; and bringing them off in ſuch confuſion, that many of them left their Armes, Ammunition, and Ordnance behind them, which might have been eaſily drawn off, there being ſo many halliers horſes in the City for that purpoſe.

Secondly, by giving no order nor direction to the Souldiers drawn off, for any preſent ſervice or ſally in divers houres,Cap. Bagnall. by meanes whereof, many of them 2deſerted their colours.

Thirdly, by not imploying his reſerve under Captain Stokes, not his Maine-Guard, nor Souldiers in the Caſtle (conſiſting of at leaſt 500 men) who were 3freſh and had been upon no ſervice, to make a preſent ſally on the Enemy,Major Wood. Wil. Whithorn. who might with eaſe have been cut off by them without calling any from the Line.

Fourthly, by his contradictory commands, and pale looks, atteſted by William Deane, Mary Smith, Captain Buſhel, Thomas Thomas, and generally taken notice 4of by the Souldiers.

Fifthly, by his haſtineſſe to**See his Letter, p. 3. propound and ſend for a Parley to the Enemy, even before the ſally made, as Col. Strood depoſeth, contrary to his adviſe; and then 5againe preſently after the ſally.

Sixthly, by the forgetfulneſſe of all his former promiſes, and of the very Caſtle it ſelfe,Iames Powell Mr Haſſard. Cap. Bagnall. Col. Strood. formerly accounted by him the ſtrongeſt Rampart and laſt Retreat, 6where he would lay his bones; which was not now ſo much as thought on, although the Magazine, Ammunition, and Proviſions lay therein, whereby he betrayed, cheated, and undid the beſt affected Citizens.

p. 70Sevently, by his own confeſſion in his Relation, p. 10. he writes, That all the conditions they deſired, See the Articles of ſurrender.were yeelded to: yet had he not then ſo much heart or brain left within him, as to demand or make more honourable conditions, then to deliver up the Town and Caſtle, with all Artillery, Armes, Ammunition, Cannon, Victuals, Priſoners, and Colours too (which was all that could be loſt or given away from the State) or to demand convenient time or Carriages to convey away their goods from thence.

Eightly, by accepting Articles in the Commiſſioners names, when as they ſhould have been in Prince Ruperts then preſent, who elſe was not obliged to obſerve them; and not exacting an Oath, or due ſufficient caution for performing them, after ſo many experiences of their treachery and truce breaking.

Ninthly, by ſuffering one of the Enemies, Hoſtages to depart the Town as ſoone as the Articles were concluded, and giving liberty to the other to doe the like,Major Allen. but that Major Allen comming caſually into the roome withſtood it; by meanes whereof they had all been wholy expoſed to the Enemies mercy and ſudden aſſaults, having no ſecurity for himſelfe, his Soldiers or the City; whereas both his Hoſtages continued ſtill in the Enemies hands.

Tenthly,Mr Baynton. by his not publiſhing the Articles after they were concluded, till Captaine Buſhell (a Priſoner of the Enemies party) put him in minde thereof, and publiſhed them at his requeſt.Major Wo…d, Mr Powel, Captain Bagnall.

Eleventhly, By ſuffering his men to fall off their Guards, the Priſoners to get looſe, the Enemies to enter the Town and Caſtle before the time appointed for the ſurrender, bbSee the Tragedy of Briſtol. p. 2. 3. 5. 6.Whereby many rapines and violence were committed both on the Souldiers and Townes-men in the very ſtreets and Caſtle, which the Enemy could not prevent, and the Colonell never endeavoured to ſee righted: Which cauſed Col. Gerrard (foreſeeing ſome complaints would be made) to deſire Major Wood (who in theſe diſorders ſuffered three dayes impriſonment there) to carry a letter from him to Nath. Fiennes (which hee ſhewed to Major Wood) to this purpoſe.