Relation of the Prosecution of Nathaniel Fiennes, Trial proceedings · Part · Letter – Floating text 3

Relation of the Prosecution of Nathaniel Fiennes · Trial proceedings · Part · Letter – Floating text 3

p. 70That whereas many outrages had been committed contrary to the tenor of the Articles, which might happily be imputed to the Kings Grace, he gave him to underſtand that the fault was in himſelfe, who had moſt unſouldierly neglected to look to the performances of them upon his party: and if this Declaration did not, gave him ſatisfaction, he ſhould bee ready for further clearing of himſelfe to waite upon him with his ſword in his hand, Your friend whom you call Cavalier,

Charles Gerrard. Which Letter Major Wood delivered.

Twelfely,Captain Huſbands, Rich. Winſton. by his leaving Captaine Blake, and Captaine Husbands with their Souldiers in Windmil-hill and Brandon-hill Forts, when he marched out of Briſtol, and giving them no notice of the Articles of ſurrender, not Warrant under his hand to deliver up theſe Forts according to the Articles; the firſt notice they had both of the Articles and the Defendants leaving the Town, being given them by the Enemy, who demanded the Forts, which they held after the Governours departure, from whom they received no Order to quit them, which might have endangered their lives.

Thirteenthly,Major Wood. By his taking no care to march away with his men in a Body (which they could not well doe becauſe their Colours and Drummes were ſurrendred p. 71by agreement) whereby they might have been kept together for the ſervice of the Parliament. And yet the preſervation of his men and horſe in a body for their preſent ſervice, is the beſt and only reaſon he gives for the ſurrender of the City and Caſtle, both in his aaPage 11.Relation, Letter, and Anſwer to the Articles.

Fourteenthly,Mr Browne, Mr Pury. By his cowardly and unadviſed ſpeeches concerning the intenability of Gloceſter for three dayes ſpace, if the Kings Forces came before it, and his diſcourſe to Mr Pury after its reliefe; his feare tranſporting him into ſuch an uncharitable opinion, as to judge brave Colonell Maſſie, as puſillanimous and cowardly as himſelfe.

Fifteenthly, By his very printedbbSee his Relation, p. 9. 10, 11. Relation, Letter, Replies, and Anſwer to the Articles, in all which the intelligent Reader may palpably diſcerne a ſpirit of trepidation and cowardize to have ſeized both on his braine and pen, which made him invent ſo many unworthy ſhifts, untrue ſurmiſes, (as of cloſe decked botes prepared by the Enemy, a reſolution to ſtorme the Caſtle, and take it in two dayes at moſt, &c.) And utter ſo many ſtrange Paradoxes, yea contradictions, unworthy a man of honour; and deny, not only Col. Eſſex, but himſelfe, to be Governour of Bristol, or of the Caſtle there; of which before: If all theſe evidences may be credited againſt his bare proofleſſe Allegations, the ſurrender muſt needs bee cowardly and unworthy at the beſt.

Upon this Col.Object. 2. Fieenes very confidently affirmed, That the Report that Briſtol was cowardly and unworthily ſurrendred, was firſt raiſed by Mr Prynne, the Proſecutor, in his Book intituled Romes Master-Piece, p. 35. publiſhed (as he ſaid) the firſt of Auguſt 1643. within five dayes after the ſurrender of Briſtol; and that before the publiſhing of this Book, it was not ſo reported, reputed by any.

To which Mr Prynne replyed:Anſwer. That this was a moſt falſe calumny without the leaſt ſhadow of truth; For firſt, though the Title of his Romes Master-Piece, was written and licenſed for the Preſſe by a Committee of the Commons Houſe (who earneſtly, deſired him to tranſlate and publiſh the Letters and Plot therein compriſed, with ſuch obſervations as he thought meet, and they ſhould approve) on Auguſt. 1. 1643, yet the Book it ſelfe was not compiled, nor fully printed off till the end of Auguſt or after, the publication being neare a MonethMonth ſpace after the licence; before which time, not only Mercurius Aulicus had enformed the world in Print; That Nathaniel Fiennes (by name, whom I named not) had beſtowed Briſtoll on the King, &c. (which words were read out of Aulicus;) but likewiſe many London Mercuries (and namely, that from Munday the 31 of Iuly till Aug. 7. p. 17) had divulged in Print, That Briſtoll was cowardly delivered to the Enemy; that if Col. Maſſey had been Governor in his place it had not been ſurrendred at all, but held out ſtill, &c. And in truth the ſurrender thereof to the Enemy in ſo ſhort a ſpace, was ſo far beyond all mens thoughts or apprehention, that the very firſt tydings of it, made moſt men openly aver in every place, it was moſt cowardly and unworthily at leaſt, if not treacherouſly ſurrendred to the Enemies. This was not only Vox Popult, in London, Westminster, and elſewhere; but Vox Parliamenti, the opinion of the Commons Houſe (if not the Lords too) who were much dejected at the newes; which the Defendant himſelfe p. 72ſelfe taking notice off upon his very firſt eueryevery into the houſe after his return from this noble exploit; where every one looked ſtrangly on him with a diſcontented aſpect, and few or none of his deareſt friends once moved their hats unto him, (as they uſually doe to all other members, upon their arrivall from any publike ſervice after ſome time of abſence;) and ſome of them minded him of **Mr Samuel Brown.Gomineys and Weſtons caſe; whereupon he conſcious to himſelfe of the Commons generall ill opinion of this action, to avoid their examination and cenſure, was enforced to make his Apology for it oprnly in the Houſe, August 5. 1643. in the cloſe whereof (conteining his bare Relation, no wayes ſatisfactory,) he deſiredaaPage. 13., That what he had affirmed might bee examined at a Councell of Warre, that ſo he might be cleared or condemned according as they ſhould finde the truth or falſhood of what hee had declared. Which paſſage of his, publiſhed in Print long before Romes Maſter-Piece, is a pregnant evidence and acknowledgement, that the very Houſe of Commons conceived this ſurrender proceeded either from his cowardize or treachery; elſe there had been no need of any long Apology, or ſuch a reference as this to a Councell of Warre: And indeed his owne printed Relation, is ſo full of palpable ſhifts, andbbSee p. 8. 9. 10. 11. & Letter to his Excellency, p. 3. 4. &c. expreſſions of a timorous ſpirit, that the very reading of it, confirmed me and others in this opinion, That the ſurrender was cowardly or treacherous; and my paſſage in Romes Maſter-Piece concerning the inconveniences of Briſtols ſurrender, with reference to the Welch, and Iriſh Rebels, were taken verbatim out of his own printed Relation, p. 13. where thus he writes, If the Enemy poſſeſſe Bristol, his neighberhood of Wales will from time to time ſupply him with a body of foot. We ſhall looſe a Port Town very important for the ſervice of Ireland, and fit to give landing to the Rebels of that place or any other. By all which it is clear, that I was not the firſt raiſer of the Report of its cowardly ſurrender, but that himſelfe and others then in print had raiſed this report, before I publiſhed any thing to this purpoſe. Secondly, To put this out of queſtion; Firſt, it evidently appears by the Depoſitions of Mr Edward Stephens, Thomas Munday, William Deane, Ioan Battin, Abel Kelly, Arthur Williams, Miſtriſſe Haſſard, Richard Butler, Mary Smith, Ethelred Huddy, Ioſeph Proud, Ieremy Holway, Anthony Gale, and others, That both the Souldiers and Citizens of Briſtoll were much diſcontented with the Governors Parly and ſurrender when it was but in agitation, & openly ſaid, they were betrayed; and that not they only, but the very Enemies, concluded the ſurrender to be cowardly, before we had any tidings of it; Secondly, Sir Iohn Horner (his own witneſſe) depoſeth; that in their comming up to London, before we had any notice of it, (they being the firſt who came thence & brought tidings of it,) two or three Miniſters ſpake againſt it,††Yea, himſelf by the way told Mr Powell and others, he would not come to London, but paſſe into France to avoyd the ſhame of this action. as cowardly and unworthy; Thirdly, Major Allen atteſteth, that he and ſome other Officers preſent in the ſiege, concluded it ſo in their private diſcourſe, as they retreated from Briſtol before they came to London; Fourthly, it was generally reported cowardly or traitorly both in London and Westminſter upon the firſt notice of it; and ſome women in the ſtreets openly called the Defendant a coward, for this unworthy action; which his own**Mr Hodges, and Mr Whetcomb, can atteſt this. Ladie Mother condemned, and would not believe at firſt (affirming, that her Sonne was of a more valorous ſpirit and honourable extraction, then to deliver up a place of ſuch conſequence as Briſtol in ſo ſhort a time, where he had p. 73promiſed to ſpend his life and lay his bones, rather then quit it; and all this before I took any ſpeciall notice of it. Whereupon having ſome relation to Briſtoll, in and neare which I had divers friends, I made a more particular enquiry into this action from ſuch Souldiers and Citizens preſent in the ſiege, who could give me the beſt information; and upon due examination of what was alleaged on either part, I found the ſurrender ſuch as I publiſhed it to be in Roomes Maſterpeece, by approbation of a Committee of the Commons Houſe, who both authorized the Book, and concurred with me in this opinion. From all which it will appeare, that I was not the raiſer, nor firſt inventer of this bruit, That Bristoll was cowardly and unworthily ſurrendred, it being publiſhed in print by divers, and the common received opinion of all men in City and Countrey, before I gave my cenſure of it, which I have here made good.

His tenth Argument was,Argum. 10. That both the City and Caſtle were untenable againſt the Enemy; Therefore the ſurrender not cowardly, nor unworthy. Their intenability he endeavoured to prove;

Firſt, from the weakneſſe and inſufficiency of the Lyne, Outworks, Walls, 1Fortifications doth of the City and Caſtle, in demonſtrating whereof he ſpent neere three whole dayes at firſt, and two or three dayes more in his reply to our Evidence in diſproofe of his Allegations.

Secondly, from the want of a ſufficient Garriſon to defend the Town, to manifeſt 2which, he alleaged; that he had not above two thouſand foot and horſe to guard the place, which were not halfe enough, the Works being neere five miles in compaſſe, and divided by a River, ſo as his men ſtood very thin upon the Lyne, and had no reſerves at all, unleſſe for ſome particular places; by meanes whereof his Souldiers in moſt places continued foure or five dayes and nights together upon duty without reliefe. And to prove the Garriſon inſufficient, hee inſiſted, firſt, on the Letter printed in his Relation, pag. 14. complaining of the weakneſſe of the Garriſon of Bristoll, and deſiring an augmentation of it. Secondly, on his Excellencies opinion, Ibid. pag. 16. who thought it neceſſary this Garriſon ſhould conſiſt of three Regiments of foot, two Troops of horſe, and one company of Dragoones. Thirdly, on a draught of an Ordinance preſented to the Houſe of Commons by the Lord Say; for the ſetling of a ſufficient Garriſon at Bristoll (ibid. pag. 17.) wherein he propounded, that the Garriſon might conſiſt of three Regiments of foot, the first conſiſting of 1200. the ſecond of 1000. the third of 800. men, and of two Troops of horſe, and one company of Dragoones; with leſſe then which he could not poſſibly (as he ſaid) maitaine the City againſt the Enemies forces that came then againſt it, who had few leſſe then ſeventy Colours of foot (as Lieutenant Clifton affirmed, who told them) on Gloceſter-ſhire ſide, which Captaine Husbands telling them with his Proſpectiveglaſſe, multiplied the colours to one hundred.

Thirdly, from his want of Powder and Ammunition,**See his Relation p. 9. 10. and his Letter to his Excellency. he having no Match 3at all, and but fifty barrels of Powder left, which would not have ſerved them above two dayes; which he endeavored to prove by the proportion of Powder they ſpent in two dayes before, and by a Letter from Colonell Warnloe from Plimoth (atteſted by Maſter Nichols) who writ, that they ſpent forty barrels of Powder there in one day, when they beat the Enemy out of their works.

p. 74The City and Caſtle being therefore untenable in all theſe reſpects; and no ſuccours neare to relieve them in due ſeaſon, his ſurrender could not be deemed cowardly, but diſcreet and honourable, to preſerve both the Citizens goods, and the Garriſon (conſiſting of above 1500. foot and horſe) to ſerve the Parliament, (which then wanted men) in other places of advantage.

To which particulars Mr Prynne gave theſe enſuing Anſwers.Anſwer. Firſt, that the works about the City and Caſtle were very ſtrong, defenceable, tenable againſt all the enemies power, which he proved; Firſt, by the judgement and opinion of the Defendant himſelfe, who never once complained of the weakneſſe or inſufficiency of the Works or Caſtle till the ſurrender, but oft affirmed the Works to be very ſtrong, ſufficient, and tenable, before the ſeige, and that he doubted not to make them good againſt all the enemies power, as Colonel Stephens, Colonel Strood, Captaine Bagnal, Maſter Powel, with others depoſe. And he publikly confeſſeth in his printed Relation, pag. 10. that himſelfe (and ſome others too) had a great opinion of the ſtrength of the Caſtle, before it was ſurrendred; though now upon a ſudden, he would make your Honours beleeve and endeavours to prove it, the weakeſt moſt untenable peece in the world, having ſpent one whole dayes time in demonſtrating its ſeverall weakneſſes, or rather in them his own, who notwithſtanding all theſe imbicilities had ſo great an opinion of its ſtrength; And indeed did not the Defendant deeme the works ſufficient, the City and Caſtle ſtrong, he muſt diſcover himſelfe guilty, either of extraordinary folly, in putting the Parliament, Countrey, City, to ſo great coſts to fortifie, garriſon, furniſh the City and Caſtle with all neceſſaries to hold out a ſiege, if it were not really tenable, and of no conſiderable ſtrength at all, in the upſhot: Or elſe of extraordinary treachery, if he knew it not tenable, and yet gave it out to be very defenſible, on purpoſe to induce the Gentry and Countrey in thoſe parts to bring their money, plate, eſtates, proviſions thither, as to places of ſtrength and ſecurity, as we know they did, upon his promiſes to defend them to the laſt, that ſo they might become a prey to the enemies, who had all the Ammunition, Proviſions, Armes of thoſe parts delivered into their hands at once, which they could have never gained, had not the Defendant fortified the Town, Caſtle, and affirmed them to be ſtrong and tenable; Beſides, his own many liberall promiſes to defend the Caſtle to the utmoſt, in caſe he was forced to retreat into it, and there to ſecure the beſt affected Citizens and their goods, argues its tenability in his owne apprehenſion. Secondly, as the Towne, but Caſtle eſpecially, was tenable in his owne judgement, ſo likewiſe in the opinion of others. Firſt, of the Gentry and Countrey who repaired thither, as to a moſt ſecure ſanctuary againſt the enemy, towards whoſe fortification and defence they liberally contributed. Secondly of the Citizens, who all deemed the Towne, but the Caſtle eſpecially (to which they carried their eſtates, and above three moneths proviſions) to be defenſible againſt all the enemies power, as appeares by the Depoſitions of Iames Powel, Able Kelly, William Deane, Miſtris Haſſard, others, and by the Tragedy of Briſtoll, lately publiſhed by Captaine Birch, Mr. Powell, and other Citizens of it; who write thus of the Caſtle, pag. 5. The Caſtle being ſtrongly fortified and victualled, as being the laſt place to retreat unto, if the Towne ſhould be taken; being ASSVRED we ſhould p. 75be able to keep it (till reliefe came,) as a ſanctuary for the perſons and estates of ſuch as were moſt active for the Parliament; divers of us accordingly brought in our goods, with proviſions for our ſelves, and to help victuall the Souldiers that were to be entertained in it, &c.

Thirdly, by the opinion of divers Souldiers of our owne party, as Colonel Stephens, Colonell Strood, Lieutenant Colonels Paleologus, and Andrewes, Major Wood, Major Allen, Captaine Bagnall, Nicholas Cowling, Mr. Haſſard, Richard Linden, Edmund Wathorne, Thomas Munday, and Richard Butler atteſt. Fourthly, by the ſpeeches of the enemies owne commanders, who viewing the Works of the ſaid Caſtle, ſoone after its ſurrender, ſwore, God damme them, all the Devils in Hell could not have taken the Caſtle, it was ſo fortified had not the Governour cowardly ſurrendred it, that they might thank Fiennes for it, and that they could not have taken the Castle, had it not beene yeelded up to them beyond expectation: as Mary Smith, Ethelred Huddy, Ioane Battin, Thomas Thomas, and Michael Spark ſenior witneſſe.

And whereas he alleaged, Object.that Sir William Waller, and Sir Arthur Haſlerig, deemed Briſtol not tenable, which he endeavoured to prove by this paſſage in their Letter to him dated Iuly 1. 1643.—(atteſted by Mr. Iohn Aſh, and printed in his Relation, pag. 27.) We think the enemy will fall on this night, if not, to morrow morning; and if ſo, what good will this Regement doe Briſtoll if we periſh? It is a wonder to us, to ſee our friends delay help where there is ſafety, &c.

Mr.Anſwer. Prynne anſwered. 1. That this letter declares not their opinion conceruing the intenability of Briſtoll, but their importunity to have ſpeedy ſupplies from thence. Secondly, it expreſſeth that Briſtols greateſt ſecurity conſiſted in their Armies ſucceſſe, there being no danger of a ſiege as long as their Army were maſters of the field. Thirdly, it proves nothing, that either the City or Caſtle might not have held out till reliefe ſhould arrive from his Excellency, or that it could not hold out above three dayes longer. Fourthly, the Defendant confeſſeth that had Colonel Pophams Regiment continued in the Towne, it had not beene loſt, and that his ſending of them to Sir William Waller, was the loſſe of the Towne; therefore the Caſtle and Towne in reſpect of the fortifications were both tenable, and had no want at all but of Colonel Pophams men, which he ſupplied by his new raiſed Regiments, before the ſiege.

Secondly,Object. whereas he alleaged, that divers Gentlemen left the Towne, and went away with Sir William Waller, and Sir Arthur Haſlerigge, becauſe they deemed it not tenable.

It was anſwered,Anſwer. that the reaſon of their departure (as themſelves have confeſſed) was, the feare and aſſurance they had, the Defendant would not hold it out to the laſt; whereas Colonell Strood, Colonell Stevens, Mr Talboye…and others who had his promiſe to hold it out, to the utmoſt, continued with him ſtill.

Fourthly, it was anſwered, that the objected weakneſſes and defects of the works and Caſtle, were meere inventions of the Defendant ſince the ſurrender, not thought or ſpoken of before, nor once propounded at the Councell of Warre when the Parley was in agitation; where the debate of this particular of the Tenabilitie of the Towne and Caſtle was never diſputed, for if it had, the p. 76Towne would have beene held ſome foure dayes longer, whiles this point had beene debated, which hath taken up foure dayes here. As for the Caſtle, the Defendant himſelf confeſſeth, and his Lieutenant Clifton with Major Holmes depoſe: * that in the whole debate of the Parley and Surrender, Nota.the Caſtle was never mentioned nor thought on: therefore the weakneſſe and untenability of it was no ground of its ſurrender, as is now pretended. Finally, the Defendant in his printed Relation, pag. 9. 10. and in his Anſwer, affirmes; that the cauſe why the Caſtle was not tenable againſt the enemy, was for want of Match and Powder, not inregard of its inconvenient ſituation, and weake fortification, the onelyonly cauſes now inſiſted on; therefore this is but a meere pretence invented ſince the ſurrender.

To the ſecond pretence of wanting a ſufficient Garriſon to hold it;Anſw. 2. Maſter Prynne anſwered, 1. That that Defendant had two thouſand foot beſides two hundred voluntires, and three hundred horſe and Dragoones at leaſt, which were ſufficient to defend the Towne againſt all the enemies power, as is infallibly evident by the repulſes every where given to the enemies when they ſtormed it, and the great ſlaughter of hundreds of their men, with the loſſe but of three or four of ours, atteſted by his own witnes, and publiſhed in his owne Relation and Letter to his Excellency. And if the Garriſon were ſufficient thus to repulſe the enemy in his greateſt ſtrength and aſſaults at the very outworks, then certainly they were abundantly able to defend the Towne and Caſtle after the ſlaughter, and wounding of above 1700 of the enemies, had they beene diſcreetly and couragiouſly commanded by him; but doubtleſſe they were more then enough to have defended the Caſtle, the body of the City, and that part beyond the Bridge after the Suburbs entred, and the Lyne wholly quitted on Gloceſterſhire ſide. Secondly, if the Garriſon had beene too weak, he might have raiſed ſixe or eight thouſand able men more in the City, or retained**See his Relation p. 12. five hundred of Sir William Wallers Souldiers, whom he ſent out of the Towne to ſave the expence of proviſions. Thirdly, the Garriſon Souldiers that were in it, would have fought, and held the City and Caſtle out againſt the enemy, thinking themſelves ſtrong enough to doe it, but the Defendant would not permit them, as ſundry witneſſes atteſt; the want therefore of a ſufficient Garriſon is but a meere pretence. Fourthly, a Garriſon muſt be judged to bee ſufficient or inſufficient to defend a place, onelyonly in regard of the enemies ſtrength that comes before it; that Garriſon being ſufficient to defend a Towne againſt ſeven or eight thouſand beſeigers, which perchance is inſufficient to guard it againſt twenty thouſand. Now, we confidently affirme, that the Garriſon then in it, was ſufficient to guard it againſt all the power then before it, as appeares by the enemies ſeverall generall repulſes with extraordinary loſſe to them, and none to the Garriſon: by the enemies paucity, not being above ſeven or eight thouſand at moſt; (moſt of them horſe) and their Quarters divided with an unfordable River, ſo as they could not come to reſcue or releive one the other. And whereas he pretended the enemy was neere fourteene thouſand ſtrong, becauſe they had about ſeventy or one hundred foot Colours onelyonly upon Durdham Downe; this is a moſt fallacious Argument: becauſe every puny Souldier knowes, it is a common policy in warres, to carry and diſplay a multitude of Colours more then there are Compaines, p. 77a farre off, at a diſtance, of purpoſe to amaze or terrifie the oppoſites, and make themſelves appeare more numerous then in truth they are; which policy was now uſed. And whereas Captaine Husbands affirmed, that he told one hundred foot colours on Durdham Downe; he ſaith, that it was but with his proſpective glaſſe, (an uncertain inſtrument to tell colors with) which multiplied the colours more then they were, Leiutenant Clifton telling not ſeventy at moſt. And how full theſe companies under thoſe colours were, we ſhall produce onelyonly the teſtimony of Mr. Savidge, a late Souldier in Ireland, who depoſed Viva voce; that he was in Briſtoll within two dayes after its ſurrender, when there was a Generall Muſter of Prince Ruperts foot in the Marſh there, at which both Prince Rupert and Mawrice were preſent, where he told (to his beſt remebrance) 52. but for certaine above 42. of the enemies Colours, which had not above 1400. Souldiers at the moſt belonging to them, for he particularly told and tooke ſpeciall notice of them; Whereupon he demanded of one of the Officers on the place, why they had ſo many Colours, and ſo few men? Who anſwered, that they had many of their men ſlaine and wounded in the ſeige: ſo as by this account, they had more foot in the City by ſeven or eight hundred when it was ſurrendred, then Prince Rupert had without it, whoſe forces were moſt horſe; and therefore a ſufficient Garriſon to defend it againſt ſo ſmall a force. Beſides, it appeares by the Relation of Gloceſter ſeige, pag. 1. (atteſted by Mr. Pury to be true,) that there were about nine thouſand men more before Gloceſter then there were at Briſtoll ſeige; if then Gloceſter Garriſon, conſiſting at the moſt but of 1500. men were ſufficient to guard it againſt 9000. more then were before Bristoll, then Briſtoll Garriſon of above 2000. foot, and 300. horſe, muſt needs be abundantly ſufficient to defend it againſt 9000. enemies leſſe then were before Glocester. And whereas the Defendant alleaged his Letter of complaint for want of a ſufficient Garriſon; this was in March 20. 1643. when he had but one compleat Regiment of foot, and but two Troops of horſe, not at the ſiege, 6when he had above twice double the number. Sixthly, for his Excellencies opnion, and his owne propoſitions, that the Garriſon ſhould conſiſt of three Regiments of foot, and three Troops of horſe and Dragoones. It was anſwered, that he had above that number of horſe, and almoſt his full number of foot at the ſiege, and might have raiſed more had he pleaſed; therefore a competent Garriſon, according to his owne deſire. But that which quite takes off this objection, is, That ſuch a large Garriſon as this, was not deſired by him, or thought meet by his Excellency, onelyonly to defend Bristoll againſt a ſiege, but likewiſe to defend Bath, Barkly Caſtle, and the Countrey round about for twenty miles ſpace, and to ſuppreſſe inſurrections, if any ſhould happen in the Weſterne parts; as appeares by his Excellencies Letter, and his owne propoſitions. Therefore this pretence, that he had not a full Garriſon to defend the Towne, becauſe he wanted ſome of his number of foot, which ſhould have defended Bath and the Countrey twenty miles round about, is but an impertinent plea. Seventhly, for his 7want of reſerves to releeve his men, himſelfe confeſſed, that reſerves might have well been drawn from the main guard and Caſtle Garriſon, who were not in any fight or action during the ſiege; that he had ſome few reſerves for ſome particularplaces, as there was occaſion; that Captaine Stokes, whoſe Company was a p. 78meere reſerve, ſtanding in Saint Iames Church-yard, when the enemy entred, though not imployed to repulſe them at the firſt, nor afterwards in the ſally. If then he had reſerves for ſome ſpecial ſervices, he had no doubt a competent Garriſon, it being unuſuall to have a whole reſerve, and a vaſt unneceſſary expence to maintaine a double Garriſon in any place. Eighthly, whereas he alleaged, that his men for want of reliefe and reſerves would have quite been tired out in three or foure dayes more, having been neare five dayes on duty without reliefe; & that a man might die of a lingring Conſumption well as of a Feaver. It was anſwered, That the Garriſon of Glocester had no reſerves at all, and were conſtantly upon duty without * relief above thirty five dayes and nights together,Lime hath done the like for ſixe weeks ſpace. yet held it out couragiouſly, without dying of a Conſumption; and why Briſtol Garriſon might not have done the like (being furniſhed with good ſtore of Briſtoll milk, ſtrong wines and waters) with as good ſucceſſe, had the Defendant put them to it, (eſpecially having ſome reſerves to relieve one another) he could ſee no reaſon, but only his willingneſſe to yeeld up the Town to the enemy, for feare of a Conſumption, of which none are willing, or uſe to die till nature be totally ſpent: Ninthly, there was then no ſicknes at al in the City, no want of proviſions or neceſſaries; no loſſe but of eight men at the moſt when yeelded, how then the City, Caſtle, could be ſurrendred upon this pretence of an impoſſibility to keep them longer, for want of a ſufficient Garriſon, we cannot conceive; eſpecially ſince the women with their children proferred to go unto the Cannons mouthto dead the bullets.

Thirdly,Anſwer 3. Ione Battin, Arth. Williams, Maior Wood. to the pretended want of Match, Powder, Ammunition (for a ſufficiency of all other proviſions and victuals was akcnowledged) it was anſwered, Firſt, that we had proved there were 1400. weight of Match, (beſides a Dray load more of Match) in the Caſtle it ſelf, when ſurrendred; and a Match-maker with materials to make more Match in the Caſtle as faſt as they could ſpend it, beſides much Match in the City: and he might as ſoone have alleadged want of water in the river Avon, as of Match in Briſtoll, which makes Match and cordage for all the Weſt of England and other parts. Secondly, for Powder, we have proved by ſome witneſſes, that there were at leaſt ſixty barrels in the Caſtle only, beſides as many more in the City, Forts, and what was weekly made in the Towne: yea ſome witneſſes prove there were ſeventy double barrels in the Caſtle, left to the enemy. Captaine Husband confeſſeth he had two barrels of Powder in his Fort, Arthur Williams atteſteth there were ſixty barrels in the Towne and Major Allen brought nine Barrels more from Malmeſbury: And by his own printed Relation, Page 9. 10.there muſt be at leaſt 90 Barrels left; For he therin confeſſeth (a) that he found 45 Barrels of Powder in the Town, when he firſt entred upon the Charge thereof: after which he received 30 Barrels more from London, 126 Barrels from France, beſides ſix or ſeven Barrels weekly made in the City, all the powder taken out of Shops, Ships; and the nine Barrels from Malmeſbury: all which (admit the Barrels out of France ſingle) amount to 210 Barrels; but to 336 Barrels, if thoſe from France were double, as they were: Of theſe he ſaith, Sir William Waller had about 60 Barrels, and that he ſpent about 60 more in the ſiege: deduct then 120 Barrels out of 336, there remained no leſſe then 216; or 120 out of 210, there were left 90 Barrels at leaſt by his own confeſſion, allowing him all that was made or found in the City and Ships meerly for p. 79waſt and Muſters. And whether there were a neceſſity of ſurrendring the Town for want of powder when ſo many Barrels remained only in the Caſtle; beſides what was in the Forts and City, let all men judge: there being 60 Barrels more then Col. Maſſey had when Gloceſter was firſt beſieged.

But his grand pretence is, That this powder would have laſted them only two or three dayes at moſt; whence this Pordigall of his powder, not blood or coyne, writes thus in his Relation, page 9. 10. That which made it evident, Wee could not hold out the Caſtle above two or three dayes, was, becauſe we had Ammunition for no longer time, having only 50 Barrels of Powder, and no Match, at all: (No Match for himſelfe, he meanes for cowardice, elſe there was Match enough,) and according to the proportion of Powder, we had ſpent the dayes before this would not have ſerved us above two dayes, and it is cleare wee ſhould not have had any reliefe in ſix or eight weeks. A pretty prejudicating fancy, not to be admitted on any termes: For by the ſame Argument he ſurrendred it up now when he had 90, or admit but 50 Barrels left; he would have then yeelded it had he 500 remaining: For thus hee would have argued, 500 Barrels after the rate of 50 Barrels we ſpent the two firſt dayes, would have laſted us but twenty dayes at moſt: and wee could have no ſuccour in ſix or eight weeks, therefore I was neceſſitated to render the Town for want of powder to hold out till reliefe might come: Nay, if he had a 1000 Barrels then left, he would by this reaſon have yeelded the Town up, for want of powder, for he argued thus; Col. Warnſlow at Plimmouth ſpent 40 Barrels in one day: Ergo, I ſhould have ſpent ſo many every day at Briſtoll, and by this computation a 1000 Barrels would have laſted me but 30 dayes, and I had no hopes of relief in fourty or fifty dayes at neareſt; Ergo, I was neceſſitated to yeeld for want of powder to ſerve me till relief might come. Had valliant Maſſey argued thus at Gloceſter, he might have ſurrendred it to the King on this pretence the very firſt day and houre he came before it. He might have alledged (with better reaſon then Col. Fiennes) wee have but 30 Barrels of powder in all to defend the Town with, and theſe will not laſt above one day; for Col. Fiennes ſpent 30 Barrels a day as Briſtoll, and Col. Warnſlow 40 in one day at Plymmouth: Therefore our 30 Barrels againſt a farre greater Army of Enemies, will not laſt above one day, and we lawfully may and ought in true Millitary policy to ſurrender Gloceſter to the Enemy the firſt houre they come before it for want of powder, ſince Col. Fiennes ſurrendred Briſtoll for this very cauſe, when he had twice aſmuch powder as wee. Had Maſſey done or argued thus, what had become of Gloceſter and the Kingdom ere this? But ſince he made no ſuch anticipating Argument, but with his little ſtore of powder (farre leſſe then was in the Caſtle of Briſtoll only) maintained the ſiege for 31 dayes, and preſerved) the Town when he had more cauſe to deſpaired of reliefe then Col. Fiennes, Why the Defendant might not, ſhould not have done the like at Briſtoll, I cannot yet conjecture. Indeed, he ſaith, in his Anſwer to the eight Article, That he was leſſe able to defend the Town foure, or the Caſtle fourteen dayes, then Maſſey was to defend Gloceſter 24 dayes with the ſame proportion of Powder. Certainly, if it were poſſible for Maſſey to defend Gloceſter againſt a farre greater Force then was at Briſtoll with 50 Barrels of powder for 31 dayes: It was more poſſible for the Defendant to have defended the p. 80Caſtle of Briſtoll of leſſe circumference by three parts then it, with 90 ſingle or 70 double Barrels (which he ſurrendred) for three times 30 dayes, and till ſuccours had arrived. But to exclude all fond pretences to palliate treachery or cowardize, Mr Prynne affirmed, that there muſt the ſame Rule and Law bee obſerved in caſe of powder, Ammunition, and men, as there is in caſe of victuals: And what that is the King of Swedens and his Excellencies Articles of Warre (newly reprinted) define, to wit, a preſent and abſolute want of Victuals, and all edible things to ſuſtaine nature: And ſo a preſent abſolute want and expence of all powder and Ammunition; elſe any Fort may bee betrayed upon remote pretended neceſſities. A Governour muſt not argue thus, It may bee I may ſpend 50 Barrels of powder in two dayes: Ergo, 50. being all my ſtore, I will preſently ſurrender before I put it to the hazard, and yeeld up my preſent ſtores to the Enemy before the two dayes expire. For then what place can be ſecure, or will hold out to reall extremity? But on the contrary, hee muſt thus reſolve, I have thus much powder yet left, and by good husbandry it may laſt much longer then I apprehend; the Enemies Ammunition, for ought I know, may faile before it, who knowes not how ſmall our ſtores now are; however it is better I ſhould ſpend that little I have left againſt the Enemy, rather then yeeld it up to ſupply their wants and annoy our friends, Therefore I will, yea, I ought in reaſon and duty to be reduced to a preſent, reall, not a ſurmiſed poſsible want of powder, before I will yeeld up the Fo…t, committed to my truſt, to the whole Kingdomes prejudice. This was Col. Maſſey his reſolution, this ought to be the concluſion of every Governour whatſoever, and of the Defendant at Briſtol, which wanted neither Fortifications, Men, Victuals, Ammunition, Canon, Powder, Wine, Beare, Match, Water, nor any neceſſaries when it was ſurrendred, to defend it till ſupplies might have arived. Therefore it was yeelded up before any the leaſt extremity, and ſo unworthily, and Cowardly, both in Law and reall verity.

Fourthly, Anſwer 4.as to his beſt and moſt ſpeciall plea or enducement, **See his Relation, p. 11. Letter, p. 3. 4.That he ſurrenrendred the City and Caſtle ſo ſpeedily, as he did, of purpoſe to preſerve a body of 1500 foot and horſe for the ſervice of the State, then wanting men: And the lives and eſtates of divers of our friends.

1Mr Prynne anſwered, Firſt, That he might be aſhamed of ſuch a poore abſurd pretence as this, to vaile his cowardiſe: his ſurrender in truth being but to ſave his own life and eſtate, not the Garriſons, who were ſafer in the Town, Caſtle, then in any other place whatſoever, and loſt both themſelves and their eſtates by ſurrendring them, which they had preſerved (as Gloceſter men did their City and Eſtates) had they manfully held them out to the laſt.

2Secondly, The Parliament had no leſſe then 2000 armed foot, and 300 horſe in the City to ſerve them there immediately before the ſurrender: yet this thirfty Governour would for their ſervice and advantage, ſurrender both City, Caſtle, with all the Cannon, Ammunition, Armes, Magazens, Proviſions, Wealth, Ships, Priſoners, Colours in it to preſerve them only 1500 diſarmed, plundered, diſmounted men to ſerve them, God knowes where, or how. A very frugal Steward ſurely for the Republike, to looſe them no leſſe then 800 men in the very bargain, with the City, Caſtle, Armes and premiſes to boot.

p. 81Thirdly, neither did he ſave thoſe 1500. naked men as he pretended, nor yet 3a body of three hundred to ſerve them elſewhere, hee bringing ſcarce one hundred of them with him into London. He loſt the City, Caſtle, Armes, all elſe in them before onelyonly to ſave the men, and their eſtates; and after loſt both the men and their eſtates, to ſave himſelfe, never reſerving ſo much as one Enſign, Drum, Trumpet, upon the Parly to call or keep his men together, nor yet muſtering them into order, nor marching away with them in a body, nor releeving them, when diſmounted, plundered, abuſed in his ſight, leaving every man to ſhift for himſelfe the beſt he might. And was not this a pretty ſaving of men to ſerve the Parliament elſewhere, thus careleſly to loſe them, and of 2300. men compleatly armed to ſerve them, to preſerve ſcarce 200. ſtript of all their Armes, and quite disbanded? God preſerve the Republike from ſuch frugall Stewards, ſuch pernitious bargains.

Fourthly, admit hee had ſaved full 1500 unarmed men to ſerve the State, was 4not this a ſweet purchaſe (think you) to ſave ſo many mens perſons with the loſſe of ſuch a place of conſequence, ſtrength, ſhipping, trade, command by Sea and Land, with the hazard of the whole Kingdome? Better himſelfe, and all thoſe 1500, nay, better tenne thouſand men had bravely loſt their lives in defence thereof; yea, better the whole City had been ruined if not poſſible otherwiſe to bee ſecured to the State, then that the Enemy ſhould have ſo eaſily poſſeſſed it, to the Cities, Countreys, and whole Kingdomes infinite prejudice.

Fifthly, The Parliament needed no men at that time to ſerve them elſewhere, 5but they would extreamly want Briſtoll were it loſt, farre more then they wanted men: It was a bootleſſe ſervice then, to loſe what they ſhould certainly moſt of all want, to preſerve only what they needed not.

Sixthly, Theſe mens ſervice was uſefull no where but in Briſtoll, where the 6State only needed and expected it; And thoſe who would not doe them the beſt, the uttermoſt ſervice there where they moſt needed it, with the hazard of their lives, would hardly doe them ſervice elſewhere, unleſſe they might have victory in a bagge, (as Vlyſſes had the Windes) and might fight only where they were ſure of no reſiſtance, to gaine Sarmacida ſpolia, ſine ſanguine & ſudore.

Seventhly, They could do the Parliament no ſuch good ſervice any where as 7there in keeping Briſtol; there moſt of them were in their proper center, their native ſoile where they fought for their lives, eſtates, lands, houſes, wives, children, liberties, in the very hight and ſtrength of their ſpirits; there they were entrenched in ſtrong Forts and Bulworks, well manned, victualled, Ammunitioned; where, in reſpect of the Enemies diſadvantage in aſſailing, and their own convenience in defending, they might have ſlaine one hundred Enemies for one of ours, as they had done before, killing and wounding above 1500 of the Enemies, with the loſſe only of eight of the Garriſon; after which rate they might have ſlaine the Enemies whole Army with the loſſe only of one hundred men, (a ſervice they could never hope to attaine to in the open Fields,) and alſo have ſaved not only 1500, but 2200 of their own men, to ſerve the State, together with the City, Caſtle, Ships, Armes, Magazines, and Weſterne Parts, all depending on them; and that with the totall ruine of the Enemies Forces.

p. 828Eightly, It is very imp…rbable that theſe Garriſon Souldiers and Citizens would adventure their lives to ſerve the State in any place elſe, who would not doe it on their own dunghill, and in their proper charges, where they were moſt concerned; Thoſe that will not fight it out to the utmoſt in a Fort, where they have all advantages, will certainly not doe it in the open fields, where the Enemy and they are upon equall ground. And it is not very likely, that men diſarmed, diſcouraged, left to the ſcorne and plunder of the Enemies, ſtript of all their fortunes, driven from their native habitations, and brought to truſt to the Enemy for their lives, rather then to God and their own ſwords for victory and ſecurity, ſhould fight for the Parliament without Armes, or any other encouragement in the open fields.

9Ninthly, Admit he ſecured the Parliament 1500 pillaged naked friends to ſerve them elſewhere, yet ſure I am, hee hath truly gained them fifteene, nay fifty thouſand Enemies, with all the Armes, Strength, Ports, Forts, Traffick, Proviſions, Wealth, that the Weſt of England, Wales, or Ireland can afford, whence divers thouſands of Enemies and Rebels are lately arrived in Briſtoll Ships, to cut our throats, poſſeſſe our Eſtates, yea lay our Kingdome waſt; And was not this a good piece of publike ſervice, worthy our higheſt applauſe?

10Tenthly, The very loſſe of Briſtoll, (for ought any wiſe man can yet perceive) is like to coſt the Parliament and Kingdome the lives of above 15000, nay, 30000 men, (as it hath coſt them ſome thouſands already) ere Bristoll and the Weſt be reduced, to that condition they were when this City was ſurrendred. And is not this a ſweet peece of good husbandry to endanger the loſſe of 30000 mens lives, but to ſave the lives of 1500 only, and that when they were in no greateſt ſecurity, and danger at all of being loſt, had they ſtood it out?

11Eleventhly, The Defendant and his men, were purpoſely placed in the City and Caſtle, (to the Kingdomes vaſt expence) to this very end, that they might preſerve them from the Enemy, even with the loſſe of their lives, rather then the Enemy ſhould poſſeſſe them to the publike prejudice: And yet this valiant Gentleman is ſo diſcreetly ſparing (at leaſtwiſe of his owne, if not of their lives) as rather certainly to looſe the Towne and Caſtle, then to hazard the loſſe of all or any of their lives, contrary to his very truſt and duty.

12Twelfely, Might not every Governour and Generall upon this pretence deliver up any Fort, City, Town, Country to the Enemy, without ſhot or ſtroke, to preſerve the lives of their men to ſerve the Parliament elſewhere? Had Colonell Maſſey at Gloceſter, or Col. Warnſlow at Plymmouth made this plea, of ſaving their own and their Garriſons lives, to ſerve the Parliament elſewhere, theſe Townes might have been yeelded up upon better Articles then Briſtoll long agoe. Had his Excellency been acquainted with this frugall State policy by Col. Fiennes at the famous Battels of Edgehill and Newbury, hee might eaſily before the Fights began, have ſounded a Parley, and yeelded up all his Ammunition, Cannons, Armes, Carriages, Colours, Drummes, Cornets, Priſoners to the Enemy, and given them the honour of the Field, of purpoſe to ſave the effuſion of Chriſtian blood, and reſerve the lives of his Souldiers to ſerve the Common-Wealth in other places, (there being the ſame pretence of reaſon in theſe caſes, as in Briſtoll:) And then I pray, what had become of our Parliament, Religion, Lawes, Liberties, p. 83Eſtates, and Lives too ere this? I doubt they had all been loſt by this new kind of ſaving. And then what ſervice could theſe men doe the Parliament or State when all was certainly loſt? We owe our lives, limbs, fortunes, all we have to our deare Countrey, delete this principle out of mens hearts and you diſſolve, yea ruine all civill ſociety. It is therefore no excuſe at all for the Defendant to loſe this place of conſequence to ſave a few mens lives, or eſtates, together with his own.

Thirteenthly, it is the greateſt honour of a Governour, a Souldier, to die 13fighting; to loſe his life to ſave his Countrey. The very Heathen Romans, and Tully teach us thus much Martiall Divinity. Dulce & decorum eſt pro patria mori. But this unmanly Governour was cleare of another mind, he will neither hazard his owne, nor other mens lives to ſave a City, a Parliament, a Kingdome. Better all theſe were loſt then his life, or Garriſon endangered by any bloudy aſſaults. And is not then this his principall excuſe, the higheſt manifeſtation of a degenerous cowardly ſpirit? Our Saviour Chriſt informes us**Luke 17. 33. Matth. 16. 25.Luke 17:33Matt 16:25 He that loſeth his life (by adventuring it for his Religion, God, Countrey,) ſhall ſave it; yea, and the place committed to his truſt, as Maſſey and others have done: but he that will ſave his life (or others) by a cowardly and unworthy ſurrender, as this Gentleman did, ſhall loſe it, and that deſervedly by the Axe of juſtice, for ſuch unmanly cowardize. It was Caiphas his Divinity concerning Chriſt himſelfe: It is expedient for us that one man ſhould die for the people, Iohn 11. 50.John 11:50that the whole Nation periſh not: And it ſhould have beene the Defendants honour and integrity to have ſaid the like; better that I, being but one man; yea, better my whole Garriſon had died in defending this noble City, then that the whole Nation ſhould periſh through its ſurrender, to preſerve our lives. It was the Defendants promiſe before the ſiege,Mr. Powel, Mr. Haſſard, Capt. Bagnall. to die in Briſtols defence, and lay his bones therein; But this he now profeſſeth, was ſpoken onelyonly in policy, to incourage and keep his Souldiers in heart, not in realey with any intent to performe it. Certainly if it be a ſigne of a**Iohn 10. 11.John 10:11 good Shepheard or Governour, to lay downe his life for his Sheep, his Countrey; it is an undoubted badge of a evill and timerous one, to refuſe to doe it after ſo many promiſes. This is the Defendants caſe, who would rather adventure his head in a Martiall tryall, then his life in a breach, and for this deſerves the loſſe of both.

After this we next fell upon the debate of a point of principall concernment; What ſhall be judged utmoſt extremity to excuſe a Governour, and what not, &c.namely, what ſhould be judged utter moſt extremity inregard of men, Ammunition, victuals, or intenability of any Fort, to juſtifie the Governours ſurrender of it to the enemy? And whether the Defendant were reduced to any ſuch extremity, ere he ſurrendred Briſtol?

For reſolving of this grand queſtion, Mr. Prynne alleaged, that his Excellencies Ordinances of Warre determined. That whoſoever yeeldeth up any Towne, Fort, Magazine, Victuals, Ammunition, Armes, or that moveth any ſuch thing but upon extremity, and that to the Governour, or in Councell, ſhall be executed as a Traytor. This is the generall Law. Now what this extremity is, will be the ſole queſtion; For reſolution whereof (he affirmed) we need goe no further then to the ſeverall Caſes of**See the Doome of Cowardize & Treachery. Gomineys, Weston, Creſſingham, Elmham, and the Biſhop of Norwich, anciently reſolved in Parliament, to the late King of Swedens Millitary Lawes, and his Excellencies owne explanation this point (taken out p. 84of them) in the ſecond Edition of his Lawes and Ordinances of Warre newly printed, which reduce extremity to theſe three heads; (where there is no abſolute preſent want of men through ſlaughter or mortality to defend the place.)

Firſt, if the Garriſon be reduced to an utter extremity of all eatable things whatſoever, ſo as they have no kind of food whereby to ſubſist, but muſt neceſſarily periſh by famine, if they yeeld not preſently.

Secondly, if there be no hope at all left them in ſuch a caſe of any ſuccour or reliefe.

Thirdly, if without parlying at the very inſtant, both the Forts, men, and armes muſt of neceſſity fall into the hands of the enemy. If the Governour can prove by pregnant witneſſes that he was really reduced to all theſe extremities, then he is to be acquitted, but if he faile in reall proofe of any one of theſe, then he is to be condemned and executed as a Traytor, both by the King of Sweeds and his Excellencies Martiall Lawes; and this is the generall Law Martiall of all Nations, approved by our owne Common Law, of purpoſe to eſtabliſh Millitary Diſcipline againſt cowardize, negligence, treachery, which are apt to be varniſhed over with ſpecious, though falſe pretences.

To prove this definition of extremity,Object. Mr. Prynne produced the laſt Edition of his Excellencies Ordinances of Warre, then newly printed by his ſpeciall command, and the Iudge advocates Licence. But the Iudge Advocate oppoſed the reading of them, pretending they were not yet approved by his Excellency ſo far as to be uſed at a Councell of Warre, and that they were made ſince the loſſe of Briſtoll.

To which Mr.Anſwer. Prynne replyed, that they were printed by his Excellencies ſpeciall direction, and enjoyned to be obſerved by all, (as appeares by the Title:) having beene firſt Voted and agreed on at a Councell of Warre; that the publiſhing of them in print, by ſpeciall command, was the higheſt approbation that might be, and it were in vaine to ratifie and publiſh them, if we might not make uſe of them at this Councell of Warre, in a caſe which fals punctually within their reſolution; and though Briſtoll was ſurrendred before the laſt Edition of theſe Ordinances yet this clauſe which defines extremity, being onelyonly an expoſition of the former Lawes, and no new addition all Law not formerly publiſhed, we might & ought to read it of right, to determin this difficulty, for which it was purpoſely added. But the Advocate being very earneſt againſt the reading therof, the Councel referred it to my Lord Generall, whether the explanation in the new printed Ordinances and Lawes of War ſhould be uſed at this trial? Who declared his judgement, they ſhould not now be read, or uſed.

Whereupon Mr. Prynne laid downe this concluſion for a poſitive and neceſſary principle in Warre, that utmoſt extremity to juſtifie the ſurrender of any Garriſon, Towne, Fort, or place of conſequence, muſt not be an imaginary, or poſſible extremity, or a conjecturall improbability of holding out any long time, but a reall, neceſſary, and preſent impoſſibility of holding out any longer against the enemy: affirming, that no governour of any fortified Towne or Caſtle ought to ſurrender the ſame upon any pretence of extremity, but wherethere is an abſolute, reall, and preſent impoſſibility of holding out any longer, then that very inſtant time wherein he makes the ſurrender. The reaſons whereof (he ſaid) were very obſervable, grounded upon the higheſt principles of policy and warre; as namely,

p. 85Firſt, to retard the enemies progreſſe and conqueſts, leſt a whole Kingdome 1ſhould be loſt in a moment, as all England would have beene long ere this, had Gloceſter, Hull, Plymouth, Exeter, and other places, made no longer, nor better reſiſtance then Briſtoll, though not of ſuch importance to the Realme, nor ſo well furniſhed as Briſtoll with all manner of proviſions for a ſiege. A Generall of an Army, Governour of a Towne, muſt defend his part, with reſpect to the whole Kingdome; and therefore though he cannot hold his ground, or gard his Fort abſolutely, or for any long ſpace againſt the enemy, yet he muſt loſe ground but by inches, not give it away by whole Townes or Countries; and though he cannot defend his chage ſtill, yet he muſt hold out till the laſt minute to ſtay the enemies progreſſe, and prevent a ſudden totall conqueſt of the Realme.

Secondly, to ſpend the enmies men, ammunition, proviſions, a long ſiege, 2being the uſuall bane of any army; an infinite charge, diſadvantage, diſcouragement to the beſeegers, but great advantage, incouragement to the oppoſite party.

Thirdly, to give a good preſident and encouragement to other Governours, 3Garriſons, Forts, adjacent Counties, and to uphold Martial Diſcipline therby; the holding out of a place of conſequence (as is evident by the late example of Gloceſter) giving great incouragement to the adjoyning places to hold out ſtrenuouſly to the laſt, and animating all the party adhearing to them; whereas the ſudden loſſe, or yeelding up of any eminent City, ſtrikes terrour into all adjoyning Townes, Forts, Counties, who preſently wheele about to the conquering enemy, as appeares by the example of Briſtoll; whoſe unexpected ſurrender drew on the loſſe of Dorcheſter, Barnſtable, Exeter, Dartmouth, with moſt of the Weſtern parts; and it had hazarded the loſſe of London, yea of the whole Kingdom, had the enemies purſued their victory to London wals, and not beene unexpectedly beaten off at Gloceſter, endangered by Briſtols ſurrender, and quite given for loſt by Col. Fiennes and his officers.

Fourthly, To give advantage of ſurpriſing other places, or quarters of the 4enemies, to cauſe either a raiſing of the ſiege by ſuch diverſions, or to get ſomething equivalent to the place beſieged, in caſe it ſhould be loſt, or not releevable; whereas a ſudden unexpected ſurrender foreſtals all ſuch diverſions and compenſations of loſſes. Had Briſtoll beene held out to the utmoſt, in caſe his Excellency could not have timely releeved it; yet he might have carried Oxford, or ſurpriſed divers of the enemies Garriſons, Forts, Men, Armes, Horſe, in other quarters, whiles they were occupied at Bristoll, when as its ſudden ſurrender before three full dayes ſiege, anticipated all diverſions, and recoveries in value, to help ballance Briſtols loſſe.

Fifthly, to deprive the enemy of the Ammunition, Proviſion, Victuals, and 5Magazines in the Towne and Caſtle; which if ſpent in their defence, to the enemies loſſe and ſlaughter, the Canons cloyed, the Armes made unſerviceable to the enemy, they could not have readily beene ſupplied from other parts, and ſo the Towne and Caſtle might have beene eaſily regained by a preſent ſiege, in caſe they had not beene ſeaſonably releeved; however, the victory at leaſt had beene leſſe honourable, leſſe advantagious to the enemy; who by an unworthy ſpeedy duplicate page p. 84duplicate page p. 85p. 86ſurrender gained a City and Caſtle ready fortified, victualled, ammunitioned, provided with all neceſſaries to their hands, fit for preſent defence, without any coſt or labour; with Canon and Armes almoſt ſufficient to furniſh an Army by land, and ſhipping enough to ſet out a ſtrong Fleet by Sea.

6Sixthly, To preſerve the adjacent Townes, Forts, Counties, depending upon the holding out of the place beſieged, who by a cowardly preſent ſurrender may, be in danger to be ſurpriſed on a ſudden, and taken unprovided of Ammunition Men, Armes, Victuals, or ſufficient Fortifications. If a Towne well fortified, manned, victualled, to hold out three months ſiege in moſt mens opinions, ſhall be cowardly yeelded up before extremity, in three dayes ſpace, as Briſtoll was; all the neighbouring Garriſons, Counities, Cities, Caſtles, who depend upon its three months defence, are in danger of ſurpriſall, and being taken unfurniſhed at unawares, as infinite hiſtoricall examples evidence; and the unexpected ſurrender of Briſtoll (as the**Page 1. Relation of Gloceſter ſiege truly ſtiles it) was likely to have indangered Gloceſter, whoſe vigilant Governour would doubtleſſe have been better furniſhed with Men, Ammunition, Victuals, had not Briſtols over-haſty ſurrender foreſtaled his intentions: And who knoweth not, that this ſurrender might have indangered the loſſe of London through an unexpected ſurpriſe, had the enemy preſently advanced towards it, as ſome adviſed.

7Seventhly, if any Towne be yeelded up before abſolute extremity and neceſſity of holding out longer, there is a moſt certaine preſent loſſe to the State (perchance irrecuperable for the future too) but if held out till extremity, there is ſtill either a probability or poſſibility of ſecuring and preſerving it left, even to the utmoſt minute of its tenability, and that by infinite caſualties, contingencies, and paſſages of divine providence tranſcending all humane apprehention. As firſt, by unexpected ſupplies from other parts: Secondly, by 1diverſions, or invaſions of the enemies quarters elſewhere, ingaging them to 2raiſe their ſiege. Thirdly, by ſucceſſefull ſallies; Fourthly, by extraordinary 3ſlaughters of the enemies upon diſadvantagious aſſaults, of which they of Bristoll 4had former experiences, where the enemy loſt an hundred men to one of ours, and had neere 1700, flaine and hurt in leſſe then three dayes, with the loſſe onelyonly of ſeven or eight. Fifthly, by ſudden ſickneſſe in the enemies 5Camp: his Excellency (as this Defendant affirmed) had two or three hundred men that fell ſicke about this time in his Army in one day, and one thouſand or more in one weekes ſpace, and the enemies (for ought he knew) might 6have undergone the like mortality. We read that Gods Angel in one night 7ſlew in the King of Aſſyriah his hoſt, 2 King. 19. 35. Iſa. 37. 36. 37.2 Kgs 19:35Isa 37:36Isa 37:37an hundred foureſcore and five thouſand men, 8and thereby raiſed Ieruſalems ſiege: And for ought the Defendant knew, God might have ſent an equivalent deſtroying Plague among the Goddammee Army of Cavaliers, who beſieged Briſtoll. Sixthly, by unſeaſonable tempeſtuous weather, which hath broke up many Leaguers. Seventhly, by the death or ſlaughter of ſome principall Officers or Commanders. Eighthly, by ſudden pannick feares and apprehentions of approaching reſcues,2 Kings 7.2 Kgs 7 of which we have 9an eminent Scripture preſident in the * beſiegers of Samariah; to omit prophane Hiſtories.2 Chron. 20. 22 23, 24, 25.2 Chr 20:22 Ninthly, by ſudden mutinies and diſcords among themſelves, 10which in * Scripture, and Stories are copious. Tenthly, by ſcarcity of proviſions p. 87with which the Enemy before Briſtoll was very much pinched as Mr Savidge depoſeth: Eleventhly, By want of Ammunition, the Enemies condition at 11Briſtoll, who had ſpent moſt of their powder, ſhot, of which they had farre leſſe in their Campe, then the Defendant ſurrendred to them in the Caſtle: Twelfely, 12By deſpaire of ſucceſſe, for which very reaſon the Enemies had retreated from Briſtoll in two or three dayes more, had thoſe who entred the Line at firſt been repulſed, as they might have been with eaſe, though the Defendant alledged they had taken a ſolemn Oath, not to raiſe the ſiege till they had taken the Town; which might have bin as eaſily fruſtrated, as that Oath of the Iewiſh Conſpirators, aaActs 23. 13. 14.Acts 23:13Acts 23:14Who vowed they would neither eat nor drink till they had murdered Paul: yet miſſed of their deſign. Beſides all theſe (whereof Hiſtories afford plenty of Examples) there are infinite other contingencies frequent in Story, whereby God out of his divine Providence hath many times miraculouſly preſerved Forts and Cities, even in their utmoſt extremities, againſt their potent Enemies; when they have been reſolute to ſtand out to the laſt, eſpecially in the cauſe of God, Religion, or their Countrey. And in ſuch a caſe as this is, where we may with confidence expect the beſt, the ſpeedieſt aſſiſtance the Lord of Hoaſts and God of Heaven can provide for us (if we dare rely upon his promiſes, or providence without diſtruſt) he deſerves not the title of a Souldier, much leſſe of a Chriſtian Souldier, Governour or Commander, who will not truſt God to the utmoſt exigency, and rely upon his power, wiſedome, faithfulneſſe for ſeaſonable deliverance and reliefe, which the Defendant (for want of faith as well as courrage) durſt not doe, and ſo yeelded up all.

Ninthly,9. If abſolute and preſent impoſſibility of longer defence, be not made the only Rule of utmoſt extremity, wee ſhall open a wide gap to the treachery, cowardize, negligence, indiſcretion, avarice, ambition, diſcontent of every Governour and Commander, to the overthrow of all Martiall Diſcipline, and expoſe the whole Kingdome to ſpeedy loſſe and ruine: It being an eaſie matter for any Governour or Commander, how cowardly, falſe or treacherous ſoever, to invent many plauſible excuſes, many forged, ſuppoſed, probable extremities, and to finde Witneſſes under his command to atteſt them; and by pretext thereof to betray and yeeld up the moſt conſiderable Towns, Caſtles, Forts, throughout the Realm to the Enemy without any ſtroke at all, or after a few dayes counterfeit ſiege, the better to paliate his treacherous deſignes: And therefore upon all theſe grounds, as likewiſe to reduce extremity to a certainty; no other extremity ought to be admitted, but only a preſent abſolute impoſſibility of holding out any longer; to which the Defendant was no wayes reduced, as we have already proved.

In oppoſition to theſe impregnable Reaſons, Col. Fiennes maintained theſe three Paradoxes, ſufficient to corrupt and cowardize all Governours, Garriſons whatſoever, to ſubvert all military Diſcipline, and betray any Kingdome in a moment.

The firſt was this,Paradox 1. that when ever the principall Rampart of any Town was once entred by the Enemy, this was a ſufficient extremity to juſtifie both a Parley and ſurrender. But the Line of Communication which the Enemies entred at Briſtoll was the Principall Rampart, as he pretended: Therefore his ſurrender p. 88of it upon their entring the Line, was juſtifiable.

To which was anſwered;Anſw. 1. Firſt, that the Enemies entring the principall Rampart is no lawfull ſufficient ground of a Parley or ſurrender, no nor yet the taking of the principall Fort (for the reaſons aforeſaid) as long as the other Forts or Townes are tenable; by holding whereof the Enemy may in time be repulſed out of the works they have entred. If this were true Military Doctrine, then London ſhould by like reaſon be ſurrendred to the King in caſe he came before it together with the Tower, as ſoone as the Line of Communication (the chief Rampart) were entred, or any Out-Fort taken; and an whole Army ſhould yeeld the Field, if one Troop or company of the Forlorne hope were routed. Secondly,2. Though the Line of Communication of Bristoll were entred, in one only place, yet not one of the Out-Forts was taken; the body of the City defended by the Key, and all that part beyond the Bridge, together with the Caſtle (the chiefeſt Fort Rampart, Sconce,) and every Street in the Town both tenable and defenſible, as we have formerly proved: therefore the Enemies bare entry within the Line of Communication only, was no extremity at all to juſtifie its ſurrender in the judgment of any but extreame cowards.3. Thirdly, That the maintaining of ſuch a cowardly Paradox to excuſe this ſurrender, was an argument it proceeded from cowardize, and a ſufficient proofe of a timorous ſpirit.

His ſecond Paradox was;Paradox 2. That if the Enemy had once entred or poſſeſſed the Town, the Caſtle ought not to bee kept to the prejudice of the Citizens, but ought to bee ſurrendred together with the Town, by the conſtant practiſe and policy of Warre in all places, all ages; in which he was ſo confident, that hee challenged Mr Prynne to ſhew one preſident to the contrary, and produced divers examples in forraigne Parts out of French Mercuries and Gallobelgicuſſes; with ſome late examples at home to juſtifie this aſſertion: as namely, the example of Leypſick, Mentz, Philips-burb, Prague, Ausburge, the Burſe, Breda, and other Townes abroad, of Portſmouth, Exceter, Lincolne, Worceſter, Wincheſter, Chicheſter, Malmesbury, Hereford, Taunton Town and Caſtle, Bridgwater, Dorcheſter, Dartmouth, Lime, ††He ſhould have added Banbury and Oxford to the Catalogue.Reading; where he ſaith the Townes and Caſtles were both ſurrendred together and not the Caſtles held out when the Towns were taken; yet none of theſe Governours were ever queſtioned by the King, or Parliament. And hee gave this reaſon to prove this Paradox, that if Caſtles ſhould hold out when the Townes were taken or yeelded, it would much diſhearten the Citizens, and make them unwilling to entertaine or aſſiſt any Garriſons in the Caſtles.

To which Mr Prynne retorted;Anſwer. 1. retorted; That this was the groſſeſt abſurdity that ever was broached by any man in his right ſences, and had hee not been intoxicated with a ſpirit of puſilanimity, he would never have invented ſuch a poor ſubterfuge, or made ſuch an ignorant challenge as this to ſave his endangered life. For firſt, Caſtles and Citadels in moſt Townes are uſually the ſtrongeſt, moſt tenable, moſt impregnable pieces of all others, beſt able to reſiſt and annoy the Enemies; the Out-works, Line, and Towns themſelves leſſe tenable and reſiſtible then they; to argue therefore that the Caſtle ought to be ſurrendred as ſoone as the Town is entred or taken by the Enemy, is in effect to averre, That the ſtrongeſt Fort of all muſt bee yeelded, becauſe the weakeſt part of all is entred: If this were a p. 89good Souldierly argument; then by the ſelfe-ſame reaſon if there were twenty ſtrong Forts or Caſtles about a Towne, and but one weake one; the whole twenty ſtrong ones, though tenable, muſt be yeelded, becauſe only the weakeſt one was forced; & the Lord Mayor of London (in caſe that City were beſieged) might yeeld up both the Tower, Town, and all the other Forts to the King, if the weakeſt part of the Line were but entred, or Hide-Parke, or Iſlington Fort once entred by the Enemy; Yea, by this kinde of Souldery, if the weakeſt Troop or Company in an whole Army be routed; the maine Body and Battalio of it, muſt preſently yeeld up themſelves and the Field too, becauſe this weak party thereof is defeated: and his Excellency at Edgehill fight, where ſome of his horſe and foot runne ſhamefully away upon the firſt charge, ſhould by this ſenceleſſe policy, have fled or yeelded, and not wonne the day, (as he did with greater honour,) becauſe the worſt and weakeſt part of his Army was routed: But ſince all men know, that the ſtrongeſt Forts and parties are to defend the weakeſt, not the feebleſt them; and the Caſtles in Cities made more ſtrong and tenable then other parts, for this very purpoſe, that they might hold out when the weaker parts are taken, (this being the only uſe for which they were built and made ſo ſtrong) the reaſon holds good on the contrary part; that becauſe the Town which is the weakeſt is taken, therefore for this very reaſon the Caſtle which is the ſtrongeſt part ought to be held out and not ſurrendered.

Secondly,2. Caſtles in moſt Townes, command the whole Townes where they are, and thoſe who are Maſters of them, are ſtill Maſters of the places, and will ſoon regaine the Townes: but if once ſurrendred, the Enemies become preſently abſolute Maſters of both; and no hope is left of regaining either Town or Caſtle againe without a ſiege or infinite expence and danger. Therefore there is all the reaſon in the world to maintaine the Caſtles to the utmoſt when the Townes are entred, and not to yeeld them up together, both to preſerve the dominion of the place, and regaine the Townes with eaſe and ſpeed.

Thirdly,3. As long as the Caſtles hold out, the Enemy can enjoy little benefit by the Towns, and have leſſe ſecurity in them. Beſides, their Conqueſt is incompleat, leſſe terrible, not advantagious; their progreſſe from thence to other places retarded unleſſe they leave the Caſtles unbeſieged. And their forcing of the Caſtles will conſume them farre more men, Ammunition, money, then the entring of the Towns, which without the Caſtles commanding them, are little worth. Therefore for all theſe reaſons it is apparant; that Caſtles ought to be kept by the conſtant exquiſiteſt grounds and policy of warre when as the Towns themſelves are taken or ſurrendred.

Fourthly,4. Neither will this be a diſcouragement, but the greateſt incouragement that may be to the Citizens, that the Caſtles muſt thus hold out to utmoſt extremity: Firſt, becauſe the perſons and eſtates of the wealthieſt Citizens 1will be there ſecured againſt the Enemies rage and plunder, (as the honeſt Briſtolians thought to have ſaved their perſons and eſtates by retiring into the Caſtle when the Town had been forced, which were loſt by ſurrendring it:) Secondly, 2Becauſe by keeping the Caſtles, the Townes are certaine to bee preſerved or regained in a ſhort time, and thereby their liberties and priviledges: Thirdly, Becauſe by this meanes they ſhall not bee long under the abſolute power of the p. 903Enemy and new Lords to controule them, whereas if the Caſtles be yeelded their perſons, eſtates, lawes, liberties, will be wholy expoſed to the Enemies will and pleaſure, and ſubjected to their Tyranny. Therefore upon all theſe grounds the Defendant ought to have kept the Caſtle of Briſtol being ſtrong and tenable, to the utmoſt extremity, and not to have ſurrendred it with the Town, though the City had been taken or yeelded by compoſition.

Fifthly,5. For examples, Mr Prynne anſwered, That if hee had his Books about him, he could ſhew him at leaſt one thouſand Examples in Story to one of his, where Caſtles have held out when the Townes were taken or yeelded: but ſince his challenge was to produce but one Example to the contrary, he ſhould out of preſent memory furniſh him with divers. The firſt, was a very ancient and memorable one recorded in Scripture (which hee wondred the Defendant who had read the Scriptures could forget) to wit, that of Thebez, Iudg. 9. where we readaaIudges 9. 50. 51. 53.Judg 9:50Judg 9:51Judg 9:53 That Abimeleck went to Thebez and encamped against it, and took it, But there was a ſtrong Tower (or Caſtle) within the City, and thither fled all the men and women, and all they of the City, and ſhut it to them; and got them up to the Tower: but did not yeeld it up though the City was taken: And Abimeleck came to the Tower and fought againſt it, and went hard to the doore of the Tower to burn it with fire: And a certain woman caſt a piece of a Milſtone upon Abimelechs head, and all to brake his ſcull: Then he called hastily to his Armour-Bearer, and ſaid unto him, draw thy ſword, and ſlay me, that men ſay not of me, A woman ſlew him; and he thruſt him through and he died, And when the men of Iſrael ſaw that Abimeleck was dead; they departed every man to his place: Thus the ſiege was raiſed, the Town preſerved, regained, and that by a woman. Had Col. Fiennes, in caſe the City of Briſtol had been taken, retired to the Caſtle, according to his promiſe and there ſtood upon his guard, perchance Prince Rupert comming for to aſſaile it as Abimeleck did the Tower or Thebez, might have been ſlaine with a Milſtone by one of thoſe valiant women who offered to go up to the Canons mouth to dead the bullets in caſe hee or his Souldiers were afraid to charge; or at leaſt by ſome Musket or Cannon bullet; and ſo the ſiege might have been raiſed and the Town regained: No man could tell whither ſuch an accident might not have hapned, had the Defendant patiently expected the iſſue of Gods providence in the Caſtle till utmoſt extremity, which no man ought to deſpaire of, ſince (as the wiſe man enformes us)**Eccleſ. 9. 11.Eccl 9:11 time and chance happen alike to all men. Beſides, the ſiege might by ſundry other forementioned caſualties have been raiſed, and the City preſerved: But alas, the Defendant was ſo farre from having the faith and courage of a man, that he fell infinite ſhort of the courage and proweſſe of this woman of Thebez; ſtiling the holding out of the City and Caſtle, though but a day or two longer,bbLetter to his Excellency, p. 4. Relation, 9. A deſperate Reſolution, &c. not ſtaying till they were aſſaulted, but preſently yeelding up both without any) aſſault, contrary to this Scripture preſident, which hee had neither heart, nor courage to imitate. But leaſt hee ſhould pretend this one example to be ſingular, I ſhall furniſh him with ſundry others, which I wonder he could forget. If he had read the Roman Story, he ſhould have found theccLivi. Rom. Hiſt. l. 9. Capitol defended againſt the Gaules when the City of Rome was taken; and preſerved from ſurpriſe only by the crying of a Gooſe. Had his try all been at London, p. 91I could have informed him, that in our unhappy ancient Civill warres; the Tower of London hath of times been held out when the City hath been yeelded: the like we read of the Caſtles of Edenburgh, Barwick, Northampton, Saliſbury, Deviſes, Oxford, (in the time of Maud the Empreſſe) Rocheſter, Bedford, Nottingham, Pomfret, frequently kept in former times, when the Townes were yeelded, or taken; and not to rove farther for preſidents; even Briſtol Caſtle it ſelfe was held out by**See Graftons Chron. p. 211. 212. 213. King Edward the Second, and the younger Spencer (in the laſt yeare of this Kings raign) againſt the Queen and her Sonne Prince Edward, after the Town was yeelded up to them by compoſition, to ſave their lives and goods: and in theſe dayes Briſtol was ſtiled and reputed, A good Town and a ſtrong, well cloſed, ſtanding on a good port of the Sea, having aaYea Houden Annal. pars prior p. 461. ſtiles it Caſtrum fortiſſimum in William Rufus his reign.A STRONG CASTLE, and the Sea beating round about it, Writes the Hiſtorian. Certainly had this Gentleman well ſtudied the Hiſtory of Briſtol whiles he was there, he might have found a preſident for holding out this very Caſtle after the City ſurrendred, and then hee would not have made ſuch a ſilly challenge, to ſhew him one ſuch example; But if theſe Ancient Examples had been forgotten, yet we have freſh preſidents enough of this kinde which hee cannot but remember. The Caſtles of Warwick and Nottingham both held out lately againſt the Kings Forces when the Towns were taken. Nay, the very Cloſe at Litchfild (though no Caſtle but a Cathedrall) held out againſt the Lord Brooks, when the Town was yeelded; and ſince the Parliament took it, againſt all Prince Ruperts Forces, almoſt as many weeks as Briſtol it ſelfe did dayes, and againſt neare as great an Army, though it had not above eightſcorce Souldiers in it: Yea, when the Prince had drained the More about it, ſprung a Mine, blown up a great part of the Wall, and entred the breach with above 200 men (being 50 more then firſt entred the Line at Briſtol) yet the Garriſon there was ſo farre from yeelding the place by a Parley, that they encountred the Enemies, took 200 of them Priſoners, beat the reſt out, made good the breach till all their Powder within halfe a Barrell was ſpent; and then came off upon more honourable termes by farre then the Defendant at Bristol (which was not ſo much as aſſaulted, much leſſe entred) even with their Colours diſplayed, their Bagge, Baggage, Armes, and reſtitution of their Priſoners taken by the Enemy; which conditions were moſt punctually performed, becauſe they ſhewed themſelves men of valour, and had their armes about them to defend themſelves from violence; when as the Defendant yeelded up both Armes and Colours. To theſe I might adde the Examples of Limerick and Galloway Caſtles in Ireland, who held out many Months againſt the Iriſh Rebels after the Towns were yeelded; Of Staffords Caſtle defended long againſt the Parliament after the Town taken; and the freſh Example of Lincoln, where the Cloſe was kept againſt the Earle of Mancheſter, after the Town ſurrenderd: But examples of this kinde are ſo frequent in all Stories, and ſo experimentally known to every one who hath been bred a Souldier, that I ſhall forbeare to trouble this honourable Councell (ſo well verſed in Hiſtories and Warre) with any more preſidents of this kinde.

Sixthly,6. To his objected preſidents; Mr Prynne anſwered: Firſt, that they were only alledged, not proved by witneſſes, or Records; Gallo. Belgicus being neither a legall teſtimony, nor record to be given in evidence at a tryall. Secondly, p. 92That many of his preſidents were forraign, and it did not legally appeare what were the grounds of thoſe Townes or Caſtles ſpeedy ſurrenders; which in all probability was want of food, there being ſuch a ſcarcity of it in Germany by reaſon of the long continued warres, that few Towns or Caſtles were victualed for one fortnights ſiege: and perchance they wanted Ammunition as well as food. Thirdly, It appeares not whether thoſe Governours were not queſtioned and capitally puniſhed for delivering up theſe Townes and Caſtles; ſince we finde that in theſe late Germane wars, ſome have been condemned and executed for yeelding up Townes too ſuddenly. Fourthly, many of our Towns he named had no Caſtles in them, at leaſt none fortified to keep out an Enemy. Fifthly, Although the ſurrendring and quitting of theſe Townes to the Enemy, was connived at, and never brought legally into queſtion as the ſurrender of Briſtol now is, yet they deſerved to be both queſtioned and puniſhed, (as the quitting and yeelding of Taunton, Dorcheſter, Lincolne, Banbury, Oxford, and other places:) And if ſo, theſe examples can be no juſtification nor extenuation of the Defendants crime. It is no plea for a Thief when taken, arraigned, to ſay. Such and ſuch Theives have robbed others, and yet were never indited nor puniſhed for their robberies; Ergo, my robbery is lawfull, and I muſt not be condemned for it: Had they been apprehended and indicted, it had been no plea for them, that ſome other thieves eſcaped without queſtioning; therefore no juſtification, nor excuſe for him who is arraigned; Yet this is the ſum of the Defendants argument: Other Governors in Germany and England, who have cowardly and treacherouſly ſurrendred & quitted Garriſon Towns, have not been queſtioned for it: Ergo, I muſt not be condemned nor blamed for my cowardly, traitorly ſurrendring of Briſtol, now I actually impeached and convicted for it. If this be a good plea, to what end are Martiall Lawes? Every Coward, Traytor ſhall then ſcape ſcotfee, though he undoe, betray an whole Kingdome.

Seventhly,7. Some of the Townes he inſtanced in were cowardly quitted or yeelded up upon his ſurrender of Briſtol, (as Barnſtable, Dorcheſter &c.) whoſe loſſe muſt be put on the Defendants ſcorce. As for the loſſe of Exceter, which he inſtanced; it was anſwered: Firſt, that Exceter was beſieged, and held out more Monthes then Briſtol did dayes; being beleaguered aboue three Months ſpace ere it yeelded: and had he held out Briſtol ſo long, as he eaſily might, it would have beene relieved in halfe the time, and kept ſafe till now: Secondly, that the yeelding up Bristol, was the loſſe of Exceter, which was much diſcouraged by its ill preſident, and left deſtitute of all hopes or probabilities of relief by its ſurrender; being too remote for his Excellency to relieve it, without endangering the loſſe of Kent, London, and Eſſex, during his abſence hence; and there being no other Forces neare that could in any poſſibility or probability relieve it: yet though it were thus hopeleſſe of all ſuccours, and much diſcouraged with the ill examples of Briſtol, Barnſtable, Dorcheſter, Bridgwater, Taunton, and other Weſtern Townes, it held out till the principall Fort was taken, and all their powder ſpent; yea the Garriſon, Citizens, were all reſolved to have kept it with their Pikes and ſwords when their Ammunition was exhauſted, had they had but any probable hopes of ſuccours from any part; of which being utterly hopeleſſe; they did for want of powder, after above three Monthes ſiege, ſurrender p. 93the Town and Caſtle upon ſomewhat more honourable Termes then the Defendant did Briſtol. Wherefore this preſident was ſo farre from juſtifying his ignoble act, that it was a pregnant teſtimony and conviction of his guilt in not holding out Bristol three dayes, when Exceter held above out three Monthes ſiege, and ſpent all their Ammunition before they fell to Parley.

His third Paradox was,Paradox 3. That ſome Generalls had ſentenced Commanders to death for being too obſtinate in defence of Forts, and ſtanding it out overlong; and that a French Author (there produced) affirmed; it was a capitall offence to ſtout out a place overlong.

To which Mr Prynne anſwered.Anſw. 1. 1. That this new Doctrine was certainely calculated only for that Meridian where this great Souldier was borne, and fit for none but it.2. Secondly, That the Defendant was ſo far from this fault of ſtouting it out over-long; that he deſerves to loſe his head for yeelding Briſtol up too ſoone; which certainly, in all mens judgements, is the more capitall crime of the two.3. Thirdly, That no one preſident could be produced in Story, where ever any Governour of a Town or Fort was judicially condemned or executed by the Prince or State that intruſted him to keep them, for holding them againſt the Enemy overlong: And if the Defendant had been guilty of this crime, wee would have been ſo farre from impeaching, that we and the whole Kingdome ſhould have honoured him highly for it, though wee have both juſt cauſe to proſecuted him for the contrary; for which ſundry Governours have legally been condemned. Fourthly, That it was a moſt ingrate requitall to execute any man for his over-much valour and fidelity,4. and if this were once allowed for Martiall Law, it would quickly make all Governovrs, Souldiers, Cowards or Traytors; therefore certainly the Defendant had much miſtaken his French Author; who writes only in generall: that ſome have been put to death for ſtouting and holding out a Town overlong; without defining by whom this was done. He pretends it was done by thoſe who intruſted them with the Townes, of which no example can be produced; but certainly the Author meant it only of the Enemies, who have ſomtimes put a Governour to death when a Town hath been forced, for holding it over obſtinately out againſt them, for which there are divers preſidents: And in this ſence (which doubtleſſe is the true) it ſuites very well to the Defendants caſe. The poore man was excepted (as he tells us) out of the Kings pardon ſent to Briſtol, and ſo like to ſuffer if he held the Towne or Caſtle till it were forced by the Enemy: Wherefore to prevent all danger and ſave his beſt-beloved life, hee thought good to avoyd the rigour of this Law, by purchaſing his impunity with the over-haſty ſurrender of them to the King; and ſo by this unworthy ſhift

Incidit in Scyllam qui vult vitare Carybdin:

Forfeiting his head to the Parliament and Kingdome, to ſecure it from the King.

Theſe three Paradoxes (diſcovering a moſt unſoldierly, cowardly, untruſty ſpirit in the maintainer of them) being anſwered, Mr Prynne concluded his Reply to the Defence of the fourth Article, and thoſe that followed it, with Colonell Fiennes his Commiſſion for Briſtoll, and ſome preſidents in point reſolved in Parliament, the Tranſcripts whereof out of the Parliaments Rols proved upon p. 94Oath to bee true Copies, hee there delivered to the Councell.

Colonell Fiennes his Commiſſion (the Originall whereof he there produced) was read as followeth.

RObert Earle of Eſſex, &c. To Colonell Nathaniel Fiennes. By virtue of an Ordinance of the Lords and Commons in Parliament, I doe conſtitute and appoint you Governour of the City of Briſtoll, as alſo Commander in chiefe of all the Forces raiſed, or to be raiſed and imployed for the defence of the ſaid City, and the Liberties of the ſame, and of the Garriſon there, to ſerve for the defence of the King, Parliament, and Kingdome. Theſe are therefore to will and require you by virtue of this Commiſsion to take the ſaid City and Forces into your charge as Governour in chiefe, and by all poſſible wayes and meanes (except in point of Civill Government) to provide for the defence and ſecurity of the ſame, and to maintaine the ſame againſt all enemies and oppoſition whatſoever: and from time to time diligently to exerciſe the ſaid Forces within the ſaid City and Liberties, in Arms; commanding all Officers and Souldiers to obey you as their Governour and Commander in chiefe for the ſervice above mentioned, according to this Commiſsion given you: And you are likewiſe to obſerve and follow ſuch further order and direction as you ſhall receive from my ſelfe, or from both Houſes of Parliament. Given under my hand and Seale of Armes this firſt day of May 1643.

ESSEX.

From this Commiſſion it appeares, firſt, that Colonell Fiennes was conſtituted Governour of Briſtoll by Commiſſion from his Excellency under his Hand and Seale. Secondly, that he had the command in chiefe of all the Forces and Garriſons there, who were to be imployed FOR THE DEFENCE OF THE SAID CITY, and the Liberties of the ſame; and to ſerve for the defence of the King, Parliament, and Kingdome. Thirdly, that he was ſpecially charged by that Commiſſion to take the ſaid City and Forces into his charge as Governour, and BY ALL POSSIBLE WAYES AND MEANES TO PROVIDE FOR THE DEFENCE AND SECURITIE OF THE SAME, AND TO MANTAIN THE SAME AGAINST ALL ENEMIES AND OPPOSITION WHATSOEVER; and that all Officers and Souldiers were there to obey him as their Governour and Commander in chiefe for this ſervice: Therefore he and his Officers were expreſly injoyned by this commiſſion to defend and keep it againſt the enemy, to the uttermoſt extremity, and were there placed for that very purpoſe: and that he ſent for, and accepted this Commiſſion upon theſe very terms, and not only to rule his ſouldiers, not to keep the Town and Caſtle, as he falſly at firſt pretended. Fourthly, that he was to obſerve and follow ſuch further order and direction from time to time, as he ſhould receive from his Excellency p. 95and both Houſes of Parliament; therefore not to ſurrender the City and Caſtle without their ſpeciall order or direction, which he never had to doe it, as himſelfe confeſſeth. His very Commiſſion therefore being expreſly violated in all theſe particulars by this his ſurrender, before he was reduced to utmoſt extremitie, is a ſufficient evidence to declare and condemne him for a Traitor by the very Ordinances of War, eſpecially ſince he knew the**See his Relation pag. 13. grand importance of the place, for the Kingdomes ſafety.

For Preſidents adjudged in point, I could produce many out of forraign**See Grimſtons Hiſtory of the Netherlands p. 827, 828. Hiſtories, which I ſhall pretermit, becauſe they are no binding evidence in Law; Wherefore I ſhall confine my ſelfe to ſuch domeſticke examples of this nature as have been formerly adjudged in Parliament, (the ſupremeſt Councell of Warre, whoſe judgements muſt direct all others) regiſtred amongſt our Parliamentarie Records, which cannot be controlled, and are the beſt evidence of any other. The Records themſelves (examined by the Parliament Rolls) are long, and written in Law-French, which perchance ſome of this Honourable Councell underſtand not; I ſhall therefore briefly open them in Engliſh, into which I have faithfully tranſlated them at large in The Doome of Cowardice and Treacherie, (printed by authoritie of Parliament) and apply them to the preſent caſe in order as they are opened: which courſe the Councell very well approved.

The firſt **7. R. 2. num. 38, 40.Preſident is the caſe of John Lord of Gomineys, who in the Parl. of 1. R. 2. n. 38. 40. was indicted and arraigned before the Lords for that he being made Governour of the Town and Caſtle of Arde (in France) by K Edward the third, to this intent, that he ſhould ſafely, keep the ſame for the King and his heires, without ſurrendring them to any perſon without their command, did yet in King Richard the ſecond his reigne deliver and ſurrender the ſame to the Kings enemies, without any command from him, to the diſhonour and diſ-inheriting of the King and his Crowne, and of the Realme of England, against his undertaking aforeſaid, without any dureſſe or default of Victuals or Artillerie, or of any other things neceſſary for the defence thereof. To which Indictment the Defendant pleaded, that the Town and Caſtle were ſo weake, that he could not well keep them againſt ſo great a power of the enemies as was then ready to aſſaile them: Whereupon he aſſembled all the Knights, Eſquires, and others in the Towne, and informed them of the dangers the Town was in, and of the enemies forces; and by common counſell and conſent of them all he entred into a Treaty with the enemies, to ſave the Lieges of the King within the Towne and Caſtle; and thereupon yeelded up the ſame upon termes of compoſition, receiving no reward at all for ſurrendring the Towne or Caſtle. But becauſe one Geoffrey of Argentine Knight affirmed in Parliament, that he was then in perſon within the ſaid Towne and Caſtle, in the defence whereof he was alwayes ready to live and dye, never conſenting to the ſurrender thereof: and becauſe Sir Ralph de Ferrers Knight had valiantly defended them in former times against a great force of the enemy when they were not ſo ſtrong as at the time they were ſurrendred: And becauſe de Gomineys had undertaken to keep them, and if he could not have done it, he ought in no wiſe to have undertaken to keep them; and that another ſhould and would have undertaken the ſafe keeping of them, had not he undertaken it: and for that he yeelded them up in this ſort before utmoſt extremity, when he wanted neither men, nor victuals, nor ammunition, he was adjudged to loſe his head, notwithſtanding p. 96his plea, that he did it by the advice of a generall Councell of Warre, Warre, to ſave the Kings liege Peoples lives and eſtates, and that the Towne and Caſtle were weake, unable to reſiſt the Enemies power.

This Towne was of far leſſe importance to the Realme of England then Briſtoll; no treachery at all appeared in the ſurrender, made by the vote of a generall Councell of War: yet we ſee the Governour adjudged to loſe his head, for not holding it out to the utmoſt extremity, according to his duty. And if his plea could not ſecure him from ſuch a ſentence, Colonell Fiennes his plea being the very ſame with his, that he ſurrendred the City and Caſtle of Briſtoll to the enemy before utmoſt extremity, becauſe they were weak and untenable for any long time, to ſave the lives and eſtates of the Garriſon, and Parliaments friends, and that by the counſell and aſſent of all the Knights, Eſquires, Souldiers, and Inhabitants thereof, muſt needs be frivolous, and can no way extenuate his fault, nor ſave his neck from the blocke; the rather, becauſe Bristoll was of far greater conſequence to the Kingdome now, and better provided, fortified, manned, victualed, and more likely to be relieved, then Arde was then.

The ſecond Preſident was of Pierce de Creſſingham and John de Spikeſworth Eſquires, who were arreſted and arraigned in Parliament 7 Rich. 2. num. 17. for yeelding up the Castle of Drinkham in Flanders to the enemies, from whom it was gained by the Biſhop of Norwich, though it were well and ſufficiently ſtored with victuals and other neceſſaries, and ſtrong enough to be held against the enemies, without the will or command of the King or his Lievtenant. To which Spikeſworth pleaded, That he had never the custody of that Castle, or any thing to doe therewith, but was chaſed into it by the enemy, it being then in the cuſtody of Piers de Creſſingham: That ſoone after the enemy aſſaulting the Barbican, he was unhappily routed, and one of his Varlets ſlaine cloſe by him: That he had never any thing to doe in the Caſtle, neither as a Souldier thereof, nor in any other manner whatſoever, but onelyonly continued in it in manner aforeſaid till it was ſurrendred by the ſaid Piers; And therefore prayed, that it would pleaſe the King to have him excuſed. Whereupon it was ordered he ſhould be ſet at liberty, if nothing elſe could be ſaid againſt him. Piers Creſſingham, who had the cuſtody of the Caſtle, alledged, That upon the yeelding up of the Towne and Caſtle of Burburgh to the enemy, of all the Garriſon ſouldiers he had with him at Drinkham none would continue with him for the ſafeguard of that Caſtle but onelyonly five perſons; by reaſon of which great neceſſity, he was constrained for the ſafety of his owne perſon and people, to enter into a Treaty with the enemies to deliver up that Fort; and thereupon he yeelded it up, and not for any other cauſe, nor in any other manner, but onelyonly by conſtraint of the power of the enemies, aforeſaid; denying that he ever received any thing from the enemies by way of gift, or in any other manner: Whereupon he conceived that no man ought to impute any manner of blame or reproach unto his perſon; but if it ſhould be thought he had done ill in any manner, he moſt humbly caſt himſelfe upon the grace of his Liege Lord. But becauſe this excuſe was held inſufficient, he was committed to priſon, till the King ſhould otherwiſe declare his opinion concerning him.

Here was a caſe of far greater extremity then Briſtoll, without any apparent mixture of treachery; but onelyonly five of the gariſon left to defend the Caſtle, when p. 97as the Defendant had 2300 Souldiers at leaſt in Briſtoll; and a ſurrender by common adviſe for the Governours and Inhabitants ſafety; yet becauſe Creſſingham the Governour, by virtue of his office was bound to hold it till the utmoſt extremity, he was for the preſent adjudged to priſon, and to expect a further ſentence afterwards; whereas Spikeſworth was acquitted, becauſe he came caſually into the Caſtle, as forced by the enemy, and had no charge of it, as a Governour, Officer, or garriſon. Souldier; all which (as appeares by this reſolution) are anſwerable and puniſhable for delivering up the ſmalleſt Fort before utmoſt extremity.

The third preſident is the caſe of the Biſhop of Norwich, accuſed in Parliament 7. R 2 num. 32. for ſurrendring the Town of Gravelin to the enemy, before utmoſt extremity, upon condition that it ſhould be totally demoliſhed, To which the Biſhop pleaded, that by reaſon of the diſobedience of his Captains, who quitted the field, and betooke themſelves to their Forts, he was conſtrained to retire with his Forces to the Towne of Graveling, which he would have held out well enough againſt all men, and did hold out till the other Captaines had ſurrendred their Forts adjoining, to the French; and after that, untill ſpeedy ſupplies might have arrived from England: But becauſe there were ſixe or 7000 Engliſh-men, who came out of the Forts ſurrendred, lying on the ſands neare Calice, who could not get into the Towne, and were in danger to be ſlaine by the French within two or three dayes, (the Truce being then expired) whoſe loſſe would have been charged principally upon him; thereupon he was commanded by the King himſelfe, to render the Towne to the enemies or elſe to demoliſh it, and then to march to ſuccour the ſaid Engliſh, and after that towards England, to ſave himſelf and others of his Army, in caſe they were in any great want of victuals, as in truth they were: and becauſe it behoved him to abate and void the Towne, as it was lawfull for him to doe at his pleaſure, being gained by his proper conquest from the enemy: it ſeemed to him, that he ought to be well excuſed of what ever was ſurmiſed againſt him (for**Walſingham hiſt. Angl. p. 327 to 330. Holinſhed. Speed. Grafton in an. 6 Rich. 2. compounding with French to raſe the Towne to the ground, and to depart whither he would with his bagge, baggage, and men.) To which was anſwered by the Lord Chancellor, That there was ſufficient victuals in the Towne when the Kings Letter came there; after which the King ſent other victuals thither in great plenty, with Letters importing, how he had appointed his Uncle to come speedily to his aid and ſuccour; yet notwithſtanding he departed thence, leaving the Towne to the enemies, againſt the forme of his Indenture, by which the King granted him whatever he ſhould conquer, not at all to ſurrender, ſell, or leave the ſame to the enemy, but to hold and poſſeſſe it. And as for the diſobedience and defaults of his Officers, and their ſurrender of the Fortreſſes, they neither could nor ought at all to excuſe him, ſeeing they were all named and choſen by himſelfe, not by the King or his Councell, and the Articles of the ſurrenders ſealed between them and the enemies, were made without the authority and conſent of the King: Wherefore by the aſſent of the Earles, Barons, and other Lords temporall preſent in Parliament, it was aſſented and decreed, That the Biſhop ſhould be in the King mercy, (who out of his grace would forbeare to lay hands on his body in regard of his function, though he might juſtly have proceeded against him as a Lay-man:) that he ſhould be put to a fine and ranſome, according to the quantity and quality of his offence, for which his Temporalties ſhould be ſeized, p. 98and whatever monies he had received from the King, and imployed to his owne uſe, he ſhould preſently make full paiment thereof into the Kings Treaſury, without delay or difficulty. Had he been a Lay-man his cenſure had proved capitall, and more rigorous.

Here we have all Colonell Fiennes excuſes pleaded to juſtifie this action: Firſt, the ſaving not of a body of 1500, but 7000 Engliſh-men to ſerve the State, whoſe lives were all endangered, not in a garriſon Towne or Caſtle well victualed, or ammunitioned, as thoſe in Briſtoll were, but lying on the open ſands without defence, and that not in their owne native ſoile, but beyond the ſeas in an enemies countrey. Secondly, Deſpaire of timely reliefe, and greater want of Victuals then was in Briſtoll, where there was too much plenty. Thirdly, a Letter from the King himſelfe, injoining the Biſhop to quit the Towne to the enemy in caſe they wanted Victuals, as he alledged they did; when as Colonell Fiennes received no ſuch Letter from the Parliament or his Excellency, to quit or yeeld up Briſtoll. Fourthly, this Towne was won from the enemy by the Biſhop himſelfe, not immediately committed to him to guard by the King or Parliament, as Briſtoll was to the Defendant, who had leſſe right to ſurrender Bristoll, then this Biſhop Gravelin, being his owne conqueſt. Fifthly, he did not yeeld up the Towne, with all the Cannon, Armes, and proviſions in it to the enemy, as the Defendant did Bristoll; but onelyonly demoliſhed it and ſleighted the Fortifications, departing thence with bag, baggage, cannon, and his men; yet notwithſtanding all theſe particulars, and the gallant ſervice this martiall Biſhop had done in this Expedition, he incurred this heavie cenſure, and had his Temporalties ſeized divers yeers for his Fine and Ranſome. And if he deſerved ſuch a cenſure, no doubt the Defendant deſerves a far greater, notwithſtanding his excuſes.

The fourth preſident is that of Sir William de Elmham, Sir John Tryvet, Sir Henry de Ferrers, and Sir William de Farendon, Knights, and Robert Fitz-Ralph Eſquire, impeached in the Parliament of 7. R. 2. rot. Par. n. 24. for ſurrendring the Towne and caſtle of Burburgh to the enemy, and receiving monies for the Armes, Victuals, Priſoners, and goods within the ſame. To the which Sir William de Elmham, and moſt of the others pleaded, that they were enforced to ſurrender the Towne and caſtle to the enemy of fine force, for the ſalvation of themſelves, the Garriſon and people therein, the enemy having beſieged and aſſaulted it in very great number, and ſet the Towne on fire within, who would have taken it by force, and taken or ſlaine all thoſe within it, had they not yeelded it by agreement: And that the monies they received, was onelyonly for the Priſoners, Victuals, and other goods within the ſame not for the ſurrendring of the Towne it ſelfe. Yet notwithſtanding this excuſe was adjudged inſufficient, and the parties ordered to make full paiment to the King of all the monies received from the enemy, to ſtand committed to priſon, to make ranſome at the Kings will according to the quantity of their ſeverall offences, and Sir William de Farendon left to the Kings mercy, both for his body and goods, to doe with them what he pleaſed.

Here we have a Towne aſſaulted by a multitude of enemies, fired in part, and thereupon a ſurrender upon compoſition, to ſave the Officers and Souldiers from being taken or ſlame by the enemy: yea, a better market then the Defendant made at Bristoll, even a ſale of the priſoners, Victuals, and goods in the Towne to p. 99the enemy for money, when endangered to be all ſurpriſed by force; yet this was judged no excuſe: Therefore certainly the Defendants pretended neceſſity, and danger of forcing the Towne by the enemy, not halfe ſo reall as this, cannot excuſe his crime, nor extenuate his guilt, nor yet his pretence of ſaving his Officers and Garriſons lives and eſtates, to doe the Parliament ſervice elſe where.

The fift preſident, is that famous caſe of William de Weston in the Parliament of 1. R. 2, num. 38, 39, 40. The Commons in this Parliament prayed, that all thoſe Captaines who had rendred or loſt Caſtles or Townes through their default, might be put to anſwer it in this preſent Parliament, and ſeverely puniſhed according to their deſerts, by award of the Lords and Barons, to eſchew the evill examples they had given to other Governours of Townes and castles. Whereupon Iohn de Gomineys (whoſe caſe I began with) and William de Weſton, then detained Priſoners in the Tower, becauſe they had loſt and rendered the Kings Townes and castles to the enemies, were brought by the Conſtable of the Tower before the Lords in full Parliament in the White chamber; where Weſton by the Lords command was arraigned by Sir Richard Leſcop, Steward of the Kings houſe, in manners following.

William de Weſton, you took upon you from the moſt puiſſant Prince (whom God aſſ…ile) Sir Edward late King of England, Grand-father to our Lord the King that now is, ſafely to keep to him and his heires, Kings of England, the caſtle of Outhrewyke, without ſurrendring it to any one but to the ſaid Grand. father, or to his ſaid heires, or by command from him, or from his ſaid heires; have you William, who are a Liege man of our Lord the King, in times of the ſame our Lord the King who now is, true heire to the ſaid Grand-father, delivered and ſurrendred the ſame to the enemies of our Lord the King, without command from him, to the diſhonour (or dammage) of him and his Crowne, and of the eſtate of his Realme of England, againſt your allegeance and undertaking aforeſaid? What will ye ſay hereunto?

Whereupon the ſaid William put in his finall Anſwer in this behalfe. To the moſt ſage Counſell of our Lord the King, and to the other Lords and Commons of the Parliament, ſupplicates and ſheweth William de Weſton, that albeit he be accuſed of this, that he hath maliciouſly rendred the caſtle of Outhrewyke, of which he had the cuſtody by delivery and aſſignment of our Lord the King, may it pleaſe your ſage and juſt diſcretion to have the ſaid William excuſed thereof, for theſe cauſes enſuing. First of all, may it pleaſe you to remember how that the ſaid William was lately informed by a Spie, that a great power of the enemies would come upon him to beſiege the ſaid castle, with very great and very grievous Ordnances; whereupon he the ſaid William preſently by his Atturney, and by his Letters, required of the ſaid Councell, that it would pleaſe them to re-enforce the ſaid castle with more men, for the defence and ſafeguard thereof, in regard that the Garriſon of the ſaid castle that then was, were not halfe ſufficient in reſpect of multitude to reſist ſo great a force in ſo large a place; but in concluſion, for all this, he could not have any ſuccour from the ſaid Councell: And ſo the ſaid William, not at all through his default, was left without people ſufficient for to keep and defend the ſaid caſtle any long time; which he beſeecheth you to take into p. 100your juſt and benigne conſideration. Alſo pleaſe you to know, how upon a Muaday about one of the clocke the enemies came to beſiege the ſaid caſtle, to the number of 2600 men of Armes, and 700 Arblasters Genevoyes, and with 5000 of the commonalty of the countrey, having nine great Cannons, divers Engines, and one great Mortar-peece, beyond all meaſure greater then ever they had ſeen any before in thoſe Marches; and the ſame houre preſently a great number of the men of Armes and Arblaſters aforeſaid came before the Gates for to aſſaile the ſaid caſtle, and at this time ae Knight of theirs was ſlaine, who was couſin to the Lord de Clifton as was reported, and many others were likewiſe then ſlaine and wrecked. And within a ſhort time after they began to ſhoot with their Ordnances and other Engines, and ſo continued their aſſault from one day to another, that is to ſay, Tuſeday, Wedneſday, Thurſday, and then were the walls and houſes of the caſtle battered downe and bruiſed in many places; and they had likewiſe by force trenched the ditches of the ſaid caſtle in three places, ſo as the water was drained out; and that night came a great party of them, and by fine force made an aſſault, and abated the Barricado's; and the next day (which was Friday) they came about day breaking with all their Forces to aſſault the ſaid caſtle, but with Gods aſſiſtance they were yet repulſed with force from their aſſault, and of the one part and the other were ſome ſlaine and wounded. And the ſame day the Marſhall of Burgone ſent to the ſaid William and others of the ſaid caſtle, to render it; whereupon having conſideration that the ſaid caſtle could not be kept, as well in regard of the ſmall number of the people, as by reaſon that the walls in many places were enfeebled by their marvellous Ordnance, there was a Treaty with the Lords to this end; That the ſaid William and his company might adviſe themſelves againſt the next morning; and ſo they departed each to his owne. Alſo this ſame night the enemies cauſed all their Ordnances, Engines, Morter-peece, Cannons, and Faggots, with Scaling-Ladders, Galleries, and all other neceſſaries, to be drawne up neare to the very ditch of the aforeſaid caſtle; and the next day (which was Saturday) they made all things ready plainly for to aſſault the plaece: And then firſt of all ſent an Herauld to the ſaid William, to know if the ſaid caſtle ſhould be rendred to them or not? Whereupon the ſaid William, by advice of the wiſeſt of his companions, taking conſideration how that the ſaid place was deſtroyed and enfeebled with their Ordnance, and alſo that they were too few men for its defence, by renſon that twelve of their companions were in this time ſlaine, wounded and ſicke, ſo as there remained of all the people in the Garriſon in health, but onelyonly 38 men to defend the ſame: hereupon by common aſſent the ſaid caſtle (which could be kept no longer) was by force ſurrendred, for to ſave their lives granted to them, and their goods: And that all theſe things aforeſaid are true, the ſaid William puts himſelfe upon his proofe, according to your moſt diſcreet Ordinances. Alſo it is to be remembred, that when the ſaid caſtle was thus rendred as aforeſaid, certaine French people bargained with the ſaid William for his victuals, to buy them, together with certaine Priſoners which the ſaid William held impriſoned within the ſaid castle, for which things he received of them for his payment 1500 Franks; of which he paid to his companions for part of their wages which was behind unto them for one quarter of a year… and an halfe, 78 Franks; likewiſe after was paid at Calice for the victuals p. 101of the ſaid castle before that time due, 442 Franks: Alſo for the paſſage of the ſaid William and of his companions into England, and likewiſe for the expences of the ſaid William being at Calice 135 Franks: And therefore the ſaid William prayeth in this regard your juſtice and benignitie, ſeeing by envious ſuggeſtion he hath againſt all reaſon been accuſed, whereby his eſtate and name, by the grievous ſinne of miſ-informers, and he alſo is ruined; having likewiſe conſideration, that out of his proper goods he hath for the greater part paid his companions their wages which were due unto them as aforeſaid, and alſo for the great coſts he hath been at before this time, for to victuall the ſaid caſtle, (for which he hath given his obligations in divers places, and oweth great ſummes, by reaſon whereof he is on all ſides undone, if your juſt benignities doe not ſuccour him) that you would be pleaſed for Gods ſake, and for pitie, to ordaine likewiſe for him, that he may by your diſcreet nobleneſſe recover his estate and goods. Alſo the ſaid William Weſton ſheweth, how the firſt day when the enemies came before Arde, that he went in haſte to Calice unto the Captaine, and deſired of him more ſuccour and aid of men, for the better guarding of his Fort of Outhrewyke, and to defend it if the enemies ſhould come thither; and the Captain anſwered him briefly, that he would not deliver nor give him aid nor ſuccour at the ſaid time, becauſe he doubted that the ſaid enemies would come before the towne of Calice. But notwithstanding all theſe pleas, the Lords in this Parliament, together with the moſt valiant and diſcreet Knights and other Members thereof, after good and mature deliberation hereupon, delivered their judgement and reſolution againſt Weſton in forme following. It ſeemeth to the Lords aforeſaid that you William, who had taken upon you ſafely to keep the caſtle of Outhrewyke, as before is ſaid, that you have without any dureſſe or default of victuals evilly delivered and ſurrendred the ſame to the enemies of our Lord the King, by your owne default, againſt all apparent right and reaſon, and againſt your allegiance and undertaking aforeſaid; and having by due information read the caſe of the late Baron of Grayſtock, who was a Lord, and one of the Peers of the Realm, who had taken upon him ſafely to keep for the foreſaid Grandfather the towne of Barwick: the ſaid Baron perceiving afterwards that the ſaid Grandfather addreſſed himſelfe to goe into the Realme of France, the ſaid Baron (without command of the ſaid Grandfather) committed the ſaid towne of Barwick to a valiant Eſquire Robert de Ogle as Lievtenant to the ſaid Baron, for to keep ſafe the ſaid towne of Barwick to the ſaid Grandfather, and the ſaid Baron went as an horſeman to the parts of France to the ſaid Grandfather, and there remained in his company: during which time an aſſault of war was made upon the ſaid towne of Barwick by the Scots, and the ſaid Robert as Lievtenant of the ſaid Baron valiantly defended the ſame, and at last by ſuch forcible aſſaults the ſaid towne was taken upon the ſaid Robert, and two of the Sonnes of the ſaid Robert there ſlaine in the defence of the ſame. Notwithſtanding becauſe that the ſaid Baron himſelfe had taken upon him the ſafeguard of the ſaid towne to the ſaid Grandfather, and departed himſelf from thence without command of the ſaid Grandfather, and the ſaid towne of Barwick was loſt in the abſence of the Baron, he being in the company of the ſaid Grandfather in the parts of France, as is aforeſaid: It was adjudged, by advice of the ſaid Grandfather, the King of Caſtile who is preſent, the p. 102Nobles, Dukes, and Counts, Henry late Duke of Lancaſter, the late Earle of Northumberland and Stafford, and Sir Walter de Manny, that the ſaid towne was loſt in default of the ſaid Baron, and for this cauſe he had judgement of life and member, and that he ſhould forfeit all that he had; and to render his judgement in theſe words the ſaid Sir Walter had a command from the ſaid Grandfather. Which things conſidered, and this alſo, that you William ſurrendred the ſaid caſtle of Outhrewyke to the enemies of our Lord the King aforeſaid, without any dureſſe or want of Victuals, againſt your allegeance and undertaking aforeſaid, the Lords abovementioned ſitting here in full Parliament adjudge you to death, and that you ſhall be drawne and hanged. But becauſe that our Lord the King is not yet informed of the manner of this judgement, the execution thereof ſhall be reſpited untill the King be informed thereof: Whereupon it was commanded to the ſaid Constable ſafely to keep the ſaid William, untill he had other command from our Lord the King.

This caſe is very punctuall, this judgment fatall to the Defendant, wherein all his former pleas, and far better then he could make, are over-ruled againſt him long ſince even in full Parliament. Firſt, this Weſton as ſoon as he heard of the enemies approaches and intent to beſiege Outhrewyke caſtle, ſent poſt to the Councell, and to the Governour of Calice, acquainting them with the weakneſſe of the Garriſon, and craving preſent aid, (as the Defendant pretended he ſent to his Excellency) yet could receive no ſupplies from either. Secondly, his Garriſon was not halfe enough to reſiſt the enemies great power, neither had he meanes to encreaſe it; when as Bristoll garriſon was abundantly ſufficient to reſiſt the enemy, and the Defendant might have doubled it had he pleaſed, there being 6000 or 8000 able men more in the towne, whom he might have imployed in its defence. Thirdly, there were 8400 enemies before it, as many or more then were before Briſtoll, and but 50 men onelyonly in the caſtle to defend it; whereas there were 2000 foot and 300 horſe at leaſt to guard Briſtoll: a vaſt diſproportion. Fourthly, they had nine great Peeces of battery, a great Ram or Morter-peece, greater then ever were ſeen in thoſe parts before, with many other Engines, as many or more then the enemy had at Briſtoll. Fifthly, the ſiege, battery, and aſſault thereof, continued from Munday till Saturday; whereas Briſtoll was beſieged onelyonly from Munday till Wedneſday noone (not halfe ſo long) and then yeelded upon parley. Sixtly, all the walls and houſes of the Caſtle were beaten downe and battered exceedingly, and the ditches drained of the water by trenches, and all their barricado's beaten downe, yet they ſtill held it out: whereas not one ſhot at all was ſo much as made againſt the Caſtle or walls of Briſtoll, but againſt the Out-works onelyonly. Seventhly, after the walls and barricado's were thus broken downe, and the ditch drained, they manfully repulſed the enemy, who fiercely aſſaulted it, and ſlew divers of them, with the loſſe and wounding of ſome of the garriſon; whereas Briſtoll Caſtle, and the body of the Towne, were yeelded up before the leaſt battery, Mine, or Aſſault. Eighthly, they made all things ready for an aſſault, planting all their Ordnance, Engines, Galleries, and Faggots, cloſe to the Caſtle-ditch, and ſent two ſeverall Heraulds and Meſſengers to him for a Parley ere he would treat: whereas the Defendant before any battery or aſſault againſt the City or Caſtle ſent out twice to the p. 103enemy for a Parley, with ſo much haſte, that he would not hearken to any who would beat them out, or oppoſe or delay the Treaty. Ninthly, twelve of his fifty men were by this time ſlaine, ſick, and wounded, ſo that he had onelyonly 38 left, to make good the caſtle thus battered and aſſaulted with ſo great a power; whereas the Defendant loſt but eight men at moſt, and had at leaſt 2300 horſe and foot, when he fell to parley. Tenthly, he ſurrendred the Caſtle, by the advice of a generall Councell of War, upon better grounds then the Defendant yeelded up Briſtoll; to wit, becauſe the wals were beaten downe, the garriſon over ſmall to defend it, the enemy very likely to force it by the aſſault, no preſent reliefe neare at hand, and to ſave his owne with the Souldiers lives and goods, which elſe were indangered to be loſt; none of which the Defendant can juſtly alledge, as we have manifeſted. Eleventhly, he made the moſt of an ill bargaine, by ſelling the Victuals and Priſoners in it to the French for 1500 Franks, with which he paid his Souldiers their arrears of wages, diſcharged the debts of the caſtle owing for Victuals, and defrayed the charges of their paſſage into England; whereas the Defendant yeelded up all the Priſoners and Victuals to the enemy gratis; with which proviſions the ſhips that brought over the Iriſh Souldiers were victualled, and left the State to pay the Souldiers arreares, and other debts contracted by him there, amounting to many thouſand pounds, which ought to be made good out of his owne eſtate. Therefore in theſe reſpects he ought to undergoe the ſelfe ſame judgement of death, and to be drawne and hanged much more juſtly then he.

To theſe Preſidents,Anſwer 1. Col. Fiennes Anſwered: 1. That theſe Governours had all of them Commiſſions under the great Seale of England, to keep theſe Townes and Caſtles, and that made their offence ſo great; but hee had no ſuch Commiſſion under the great Seale of England, to bee Governour of Briſtoll, and this he conceived differenced the caſes much.

To which Mr Prynne replyed:Reply: Firſt, that the Defendant was much miſtaken in this point; for theſe Towns and Caſtles lying in France, if the Commiſſions of their Governourſhips were under any Seale, it was under the great Seale of France not of England, as appeares by the expreſſe Statute, of 14. E. 3. Stat. 4. & 1. H. 6. Rot. Parl. Num. 14. 15. Secondly, that the great Seal being carried from the Parliament when his Commiſſion was granted, he could not expect any ſuch Commiſſion under the great Seal, but from the King himſelfe in oppoſition to the Parliament, to whom he ſurrendred Briſtoll, perchance for want of a Commiſsion under the great Seal to keep it. Thirdly, if this were a good plea or warrantable diſtinction, then all the Governours of Towns and Caſtles within the Parliaments power might treacherouſly or cowardly ſurrender them forthwith to the King without puniſhment or danger, becauſe they wanted a Commiſsion under the great Seal to keep them. Fourthly, he had a Commiſsion under his Excellencies hand and ſeal to keep the City; under whoſe Authority he took the cuſtody of it for the Parliaments and Kingdomes ſafety in theſe diſtracted times, by vertue of a Commiſsion of both Houſes granted to his Excellency: therefore his offence is as great, as capitall for ſurrendring it contrary to his truſt and his Excellencies Commiſsion to keep it, as if it had been under the great Seal. Fourthly, when his Commiſsion was firſt granted p. 104the Parliament had not made a New great Seal to ſeal it, but ſince his ſurrender of Briſtol, they had made one: and he durſt aſſure the Defendant, had his courage and fidelity been ſuch as to hold out Briſtol till the new Seal was made, hee would have procured him a Commiſsion under it to keep Briſtol, rather then hee ſhould have yeelded it up cowardly to the Enemy for want of a Commiſsion under the great Seal of England. But becauſe he held it not till ſuch Commiſſion might be obtained, he muſt be condemned for rendering it contrary to that Commiſsion which he both ſent for and received from his Excellency under his Seal of Armes alone.

His ſecond Anſwer was,Anſwer 2. that it appeared not in theſe Records what other matters and proofes were produced againſt theſe perſons, beſides thoſe mentioned in them, and therefore for ought he knew they might be condemned for ſomething elſe beſides what is alleadged in theſe Records, elſe the caſes might ſeem very hard and the ſentences none of the juſteſt.

To which Mr Prynne Replyed,Reply. That the Defendant by this ſtrange Anſwer betrayed his extraordinary ignorance in matters of Law and Records, into which no Depoſitions of Witneſſes are wont to bee inſerted, but only the true ſtate of the caſe it ſelfe, and the Iudgement given thereupon, And therefore to ſurmiſe they were condemned for any thing elſe, then what is expreſly mentioned in the Records and Iudgments themſelves, is to averre againſt the very Records, and the Iudges that gave the ſentences; and ſo to falſifie and nullifie all Records. The caſes therefore being admitted to be really ſuch as the Records relate in nature of a demurrer or conceſsion, and the Iudgements determining them to be ſuch; this anſwer muſt rather be deemed an ignorant miſtake, then any ſolid reply.

His third Anſwer was,Anſwer 3. That the Caſtle of Outhrewik, Arde and Burbugh, were places of no great conſequence or wealth and therefore ought to be held out to the utmoſt. But Briſtol being one of the richeſt, chiefeſt Cities in the Realme, and of great importance, ought not to bee endangered or ruinated by holding it to the utmoſt extremity, as Caſtles and other ſuch places of leſſe concernment might be.

To which Mr Prynne Anſwered:Reply. Firſt, that if places of ſmalleſt concerment ought to hold out to extremity, and if it be death to yeeld them up before; then certainly Briſtol, and places of greateſt conſequence to the ruine or ſafety of the Realme ought much more to be kept till extremity, and the yeelding of them up muſt be more capitall: elſe he that betrayeth the greateſt truſt, and doth moſt miſchiefe to the State, ſhall be leſſe culpable, and undergoe a milder cenſure then he that betrayes the ſmalleſt Fort: yea if this were either good juſtice, law, or Lodgick; the Defendant might argue, that he who ſteales ten thouſand pounds or murthers a man, deſerves not death, but hee who ſteales thirteen pence halfe-penny, or ſtrikes a man ought to bee hanged without pitty. The preſident and Argument therefore held à minori ad majus: If theſe were condemned for their cowardly ſurrendring of thoſe inconſiderable Townes and Caſtles before utmoſt extremity, which did but little prejudice to the Republike; then much more ought the Defendant to loſe his head for yeelding Briſtoll thus, a place of higheſt concerment to the Kingdome, which is almoſt loſt in, and by its loſſe. p. 105And doubtleſſe the Defendant who would not adventure his life to preſerve ſuch a moſt conſiderable City as Briſtol to the utmoſt exigent, would never adventure it to hold out any other inferiour places till the laſt, but yeeld them up without reſiſtance. Since therefore it appeared by theſe preſidents; that the parties impeached for ſurrendring up any Forts were alwayes detained under cuſtody during their tryall; He deſired the Councell the ſecond time, that Col. Fiennes might preſently bee put under ſafe cuſtody, and judgement given againſt him according to theſe preſidents and the Lawes of warre: the rather, becauſe they were ſeconded by his own late judgement againſt Yeomans and Butcher, whom he condemned and executed by Martiall Law only for endeavouring to deliver up Briſtoll to the Enemy before it was fully fortified, when as himſelfe thus cowardly and traitorouſly ſurrendred it to them after it was fortified, and abundantly furniſhed with all neceſſaries to hold out a ſiege, their intentionall ſurrender being not ſo criminall or fatall to the Republike, as his actuall.

When we had thus made good the ſeverall Articles of our charge, and fixed the loſſe of Briſtol and the Weſt too on Col. Fiennes, who by his not denying it in his Anſwer to the fourth Article, did thereby in point of Law confeſſe it. The Colonell to free himſelfe from this heavie charge, took the boldneſſe to tranſlate it, to one no wayes guilty of it; averring before the Councell with greater impudency then verity, That Briſtol and the Weſt were not loſt by him, but by Sir William Waller: to prove this Paradox, he produced ſeverall impertinent Allegations, caſting ſundry falſe aſperſions upon that eminent Knight behinde his backe, which he durſt not have uttered in his preſence. VponUpon which Mr Prynne humbly moved the Councell, that a Gentleman of his worth and honour might not be thus publikely traduced, where he was neither preſent to make his defence, nor a party to the Articles; deſiring that either he might ſubſtantially prove this palpable ſlander by pregnant evidences, or elſe be exemplaplarily puniſhed for it.

Hereupon the Defendant firſt alledged,Calumny 1. that he ſent Sir William Waller 1200 Foot out of Briſtoll (to wit, Colonell Pophams whole Regiment) very well armed, who at the rout of Sir William neare the Deviſes loſt all their Armes, (not many of theſe men returning thenceto Briſtoll, and thoſe without Arms;) the loſſe of which Regiment ſo weakned the garriſon, that it loſt both Briſtoll and the Weſt, which he could not defend for want of men.

To which Mr Prynne anſwered,Anſwer 1. firſt, that Bristoll was not loſt for want of men; and that this Regiment was fully made up and ſupplied by the Defendant his owne confeſſion, with a great over-plus; Sir William Waller not receiving above 7 or 800 Foot out of Briſtoll, in lieu whereof the Defendant raiſed 1100 or 1000 at the leaſt,2. beſides thoſe from Malmſbury. Secondly, that when he ſent forth that Regiment he had an independent Commiſſion, and could not be enforced to it, not ought to have ſent them if the City were thereby endangered, without ſpeciall command from the Parliament or his Excellency: His ſending out then of this Regiment being his owne voluntary act, (as his owne Letter to Colonell Popham atteſts, and he confeſſed) it is cleare that himſelfe onelyonly was p. 106the loſſe both of Briſtoll and the Weſt; and if there were no other evidence, this alone would endanger his head, it being capitall by all Laws of war for any Governour to ſend out his Garriſon, or to abſent himſelfe from his charge, without ſpeciall command, if the place be by this means loſt or ſurpriſed, as was adjudged in Parliament in the caſe of the Baron of Greyſtock cited in Weſtons caſe; of the Earl of Northumberland **Waiſing. hiſt. Angl. p. 337. See 56. E. 3. n. 23Henry Percy in 7. R. 2. and others: VponUpon which ground we find the Governour of Calice refuſed to part with any of his Garriſon for the defence of Outhrewyke Caſtle: And the reaſon is apparent, becauſe if Governours might draw out their Garriſons, or deſert their charges at their pleaſure, their Forts might be eaſily ſurpriſed, betrayed, and a gap opened to infinite treacheries; ſo that in this confeſſion we may ſee the juſt hand of God upon this ſlanderer, who by endevouring to impeach Sir William Waller, hath thus made an halter to hang himſelfe, and thereby acquitted him from all imputations of the loſſe of Briſtoll or the Weſt.

Secondly,Calumny 2. he produced his Couſin Captain Temple to teſtifie, that a Gentlewoman of his acquaintance, and of kin to Colonell Fiennes, overtook another Gentlewoman upon the high-way, newly come from Oxford, of whom asking what newes, ſhe anſwered, that the greateſt Newes now at Oxford was, that though Sir William Waller had occaſioned the loſſe of Bristoll and the Weſt, yet Col. Fiennes was like to ſuffer for it, and become his Sacrifice; who being the great Diana of the people, and ſo neceſſary a man to the Parliament, now in the field with an Army, they would forbeare to queſtion him, and ſacrifice Col. Fiennes, to humour him and his party.

To which Mr Prynne anſwered,Anſwer 1. firſt, That this extravagant report, teſtified onelyonly at the third or fourth hand, was no evidence at all, and ſavoured rather of a direct plot to traduce Sir William Waller, then to juſtifie Colonell Fiennes. Secondly,2. that all the Weſtern Gentlemen had a quite contrary opinion of this buſineſſe, that Briſtoll and the Weſt were loſt by the Defendant, not by Sir William, as appeared both by their extraordinary reſpects unto him, and preſent imployment of him to regaine the Weſt.3. Thirdly, admit this fabulous report to be bruited in Oxford (to aſperſe Sir William, the Parliament, and juſtifie the Defendant) yet it ſignified no more, but that Colonell Fiennes had better friends and reſpect at Oxford then Sir William Waller, perchance for his good ſervice in ſurrendring up Briſtoll to them at ſo eaſie a rate in ſo ſhort a time, (enough to purchaſe him both friends and favour at the Court) where Sir William was not ſo gratefull, becauſe he never did them ſo great a courteſie, or good peece of ſervice, nor the Republike ſo grand a miſchief.

Thirdly, Calumny 3. Nota.Colonell Fiennes for a concluſion of his defence, had the impudence to informe the Councell, That this trouble, proſecution, and diſgrace had never befallen him, but for that conſtant affection and ſervice which he and his family had alwayes ſhewed to his Excellency and his Army, for which Sir William Waller and his party did maligne him.

To which Mr Prynne replied,Anſwer. that this was a moſt falſe, ſcandalous, ſeditious ſpeech, diſcovering who they were that raiſed, fomented, the late unhappy differences between his Excellency and Sir William, and to what finiſter end; that nothing p. 107could be uttered more effectuall to ſet all the Parliaments ſeverall Armies into a faction againſt one another, in ſtead of joyning againſt the publike enemy, And therefore having neither the leaſt ground nor proof to juſtifie this calumny, he deſired he might be exemplarily proceeded againſt for it.

In fine, after ſome impertinent hear-ſay proofs, what opinion the enemies had of his valourous defence of Briſtoll, and the intenability thereof, (which were then fully anſwered by the proofes themſelves) and a recapitulation of all the heads of his defence, he concluded with this peroration.

My Lords, I have at laſt ended my defence, and (as I hope) ſufficiently cleared both my honour, valour, and fidelity to the State in the defence of Briſtoll: And now I beſeech you to conſider, whoſe honour or life can be in ſafety, if Lawyers (feed by their owne malice) may fift and turne up all his actions, and ſnarle at his words If ſuch who are no Souldiers, may upon the information of Atturnies, and teſtimony of Shop-keepers, Ale-wives, Enemies, but of no Souldiers at all, (except ſuch who appeare out of particular ſpleen) be brought thus upon the Stage for their lives, and the great Priviledges of Parliament broken by ſuch an Impeachment of a Member of it, which could not be paralleld but by that accuſation of the five Members. Wherefore I deſire, that as I have ſerved my countrey faithfully, and done many good ſervices for it, ſo I may by this Honourable Councell be juſtified in my faithfulneſſe, and repaired againſt the Proſecutors in my Honour, more deare unto me then my life, that ſo after all my publike ſervices, I may not now be caſt behinde the doore like a diſh-clout, unfit for any further imployment.

To which Mr Prynne replyed, Firſt, that he wondred much why the Defendant ſhould thus except againſt him as an unfitting Proſecutor, ſince himſelfe (without his privity or deſire) had by a Proclamation under his Excellencies hand and Seale, poſted up at Weſtminſter and the Exchange, ſelected him and Mr Walker by name to proſecute this buſineſſe againſt him; if then we were unmeet Proſecutors, it was his owne not our errour, and he muſt blame onelyonly his owne judgment in the choice, not us. Secondly, that though he were but a common Lawyer, yet he deemed one of that profeſſion a very fit proſecutor of him who had betrayed his truſt, and in it the Kingdome, contrary to Law: And whereas the Defendant ſcandalouſly objected, that he was feed by his owne private malice, he proteſted, that there was never any malice, nor cauſe therof between them; that he formerly honoured the Defendant for his Pen, but never for his Sword, and beſtowed ſome courteſies on, though he never received any from him; that he was born not far from Bristoll, bred up ſome years therein, had many friends, kinred, in or near it, who loſt much, and himſelf not a little, by its ſurrender; that nothing had ingaged him in this proſecution but the Defendants owne ſummons, nor feed him but the publike ſervice of the Parliament, and ſecurity of the Realme, that although he had loſt and ſuffered much for the Church and State, yet he never received nor expected the leaſt recompence, much leſſe reward from either, nor ever had any pay for publike ſervices, whereas the Defendant received good wages for all his ſervices, and for loſing Briſtol too: that himſelf had never loſt any thing of the States, as he had done, but onelyonly what was his owne, (his Liberty, Calling, p. 108Eſtate, Members,) and that only for doing the Church and Kingdom ſervice, neither of all which the Defendant had parted with for the publike: And therfore whereas the Defendant boaſts of his publike actions, he could without vanity or prejudice truly affirme, he had done ten times more ſervice for Church and State, and ſuffered a thouſand ſold more for both, not onelyonly gratis, but even with the loſſe of all his earthly comforts, then this boaſter had done upon pay; and that he doubted not through Gods aſſiſtance he ſhould be able to doe the Church and State as good or better ſervice for the future, as he; wherefore he had little reaſon to extoll himſelf ſo much, or depreſſe him ſo low, as not to be a fitting proſecutor of ſuch an unworthy action. That though he were no profeſſed Souldier, yet he doubted not but he had read as many or more Treatiſes of military affaires as himſelfe; that he had for eight yeares ſpace of his reſtraint in the Tower of London and Mount orguiell Caſtle, converſed with old Souldiers, (and by name with Sir William Balfoure for five yeares in the Tower) from whom he gained ſo much experience in martiall affaires, as he would have undertaken to have kept the City and Caſtle of Briſtoll till this day, had he been Governour there as the Defendant was, notwithſtanding their pretended intenability, and the enemies power: that in the managing of this very buſineſſe before this Honourable Councell, he had in ſundry particulars manifeſted himſelfe, if not a better, yet at leaſt as good a Souldier as the Defendant, (for which he appealed to the Councell) and in regard of his long ſuffering and reſtraint in Caſtles was the ancienter Souldier of the two: That the Defendant had confeſſed to Lievtenant Col. Paleologus and Andrews, when he firſt undertook the Government of Briſtoll, That he was no Souldier, and his yeelding of it up in ſo ſhort a time, before extremity, upon ſuch poor conditions, manifeſted him in truth to be no Man at Arms; and therefore though he were no profeſſed Souldier, yet why he ſhould not be a Souldier ſufficient to proſecute him who by his own confeſſion and action is no reall Souldier, he could yet diſcern no reaſon. For his Witneſſes, whom he here vilified and traduced, they were many of them perſons of quality and honour, ſome of them Members of Parliament; others, more expert Souldiers, and perſons better verſed in martiall affaires, then any of the Defendants Witneſſes; all of them perſons of good fame and converſation, diſ-intereſſed, diſ-ingaged in the cauſe, againſt whom no exceptions can be taken: whereas all his materiall Witneſſes were his owne Officers, Brother, Kinſmen, Servants, Creditors, and parties in the cauſe, moſt of them involved with him in the ſelf-ſame guilt. That his Life and Honour were now drawne in queſtion only by himſelfe, upon his owne motion and engagement of us, and if he loſt them (as he loſt Briſtoll) he might thank himſelfe for intereſſing us in this publike ſervice, for our Countries honour and future ſecurity, the onelyonly thing we aimed at in this preſent proſecution. That his pretended breach of priviledge of Parliament was but a fancie, already anſwered and over-ruled in the Commons Houſe, who referred him to a Triall before a Councell of War by two ſeverall Orders upon his owne motion and pretended voluntary waiver of his Priviledge, before any impeachment put in againſt him; which impeachment was firſt tendred to the Houſe of Commons, who upon the reading of it with one unanimous Vote referred it to his p. 109Excellency, to be proceeded on by a free and fair hearing before this Honourable Councell; and if the proceedings on this impeachment upon his owne motion by the Commons direction be a breach of Priviledge, it is onelyonly in himſelfe and the Parliament, not in us; and it hath no more reſemblance to the caſe of the five Members then an Ape to a Lion: That he was now queſtioned, not for his faithfull but unfaithfull ſervice to the Republike and Parliament, in the ſurrender of Briſtoll, in which he preſumed he durſt not manifeſt himſelfe ſo far a Papiſt as to plead a juſtification by works, or abſolution by preceding merits. That he needed not to crave reparation of his honour and reputation from us or any other in this caſe, ſince they were both impaired and ruined by himſelfe through this ignoble action: that he had given the whole Kingdome an incurable fatall wound, an irreparable loſſe (which the loſſe of his head and eſtate could no way recompence) by this ſurrender, for which in the whole Kingdomes behalfe we here demand judgment againſt him according to the quality of his offence: That our ſervices for the Republike were every way equivalent to, if not tranſcending his, our credits, our reputations, as deare to us as his to him, which we hoped ſhould no wayes ſuffer for our zeale and fidelity in this publike proſecution upon our owne expences, without thought of recompence. That if the Defendant ſhould be pronounced guiltleſſe by this honourable Councell, after ſo full a charge and hearing, he was obliged to us for bringing him to ſuch a publike vindication of his ſuſpected fidelity, which elſe would have layen eclipſed under a black cloud of jealouſies: But if he were pronounced guilty of the impeachment, (as we made no doubt he would, the evidence being ſo cleare, the proofes and preſidents in point ſo punctuall) we ſhould deſerve thanks, if not from him (who pretended a deſire to be tried to the uttermoſt) yet at leaſt from the Parliament, Kingdome, and our native Countrey, for bringing ſuch a grand, politike, daring Delinquent to his Triall and condigne judgement, who by ſurrendring Briſtoll hath endangered the loſſe of three whole Kingdomes, and of our Lawes, Religion, Liberties, Lives, and preſent Parliament.

And now (my honoured Lords and Gentlemen) leſt we ſhould incur your juſt cenſure (according to the Defendants doctrine) for ſtouting out this cauſe overlong, which by the Defendants tediouſneſſe hath-laſted nine dayes diſpute, (though the Cities ſiege continued not three full dayes) we ſhall cloſe up all in a word or two: We render you many hearty thanks, in our owne and the Kingdomes names, for your nine dayes paines, patience, and that faire, honourable, impartiall hearing, you have afforded both parties in the triall of this great publike cauſe, in which the whole Realme is intereſſed, and whereon their eyes are fixed; not doubting but as you have granted us a moſt full, faire, indifferent hearing, ſo you will in due ſeaſon (after ſerious peruſall of your Notes and the Evidence on both ſides) give ſuch a juſt and equall ſentence, as ſhall chronicle your juſtice to, and make this caſe a leading Preſident for all future times, to deterre all Governours of Townes or Caſtles from cowardly, traiterly, or unworthy ſurrenders of them.

Thus ended the long debate of this great cauſe, begun on Thurſday the 14 of December 1643. and concluded on Saturday December 23. After which both p. 110parties were ordered to attend the Councell againe on Friday following being the 29 of December, to heare ſentence, the Councell deſiring ſo much reſpite to peruſe their Notes and prepare their Iudgment. Who ſitting againe, and we attending them, on the deſigned day, the Councell firſt delivered their ſeverall judgements of the cauſe among themſelves in private; after which Colonell Fiennes was diſarmed at the Councell-chamber-doore, (whereat he was much appalled) and then he and we being called in, the Iudge-Advocate read his ſentence out of a paper in haec verba.

COlonell Nathaniell Fiennes, you have been arraigned and convicted before this Honourable Councell, for ſurrendring and delivering up the Towne and Caſtle of Briſtoll, with the Forts, Magazines, Armes, Ammunition, Victuals, and other things thereunto belonging, and for not having held the ſame to the utmoſt extremity, according as by your duty you ought to have done; For which offence this Honourable Councell hath adjudged you to be executed according to the tenour of the Articles of Warre, by having your head out off. God have mercy on your ſoule.

The Defendant aſtoniſhed at this ſentence, told the Councell in an inſolent manner, that he little expected ſuch a ſentence from them; and (as if he had been their Controller) demanded upon what grounds and reaſons they thus condemned him? and whether they did allow of our paper-witneſſes, or diſallow the teſtimonies of his Officers? Whereupon all being commanded to withdraw for a ſhort ſpace, and then called in againe, the Defendant was told, it was againſt the ſtile and honour of the Councell, to be demanded the reaſons of their judgement after it was once pronounced. VponUpon this the Defendant (prompted by his brother) alledged, that he was a Parliament-man, and claimed his priviledge, that he ought not to be condemned without the privity of the Commons Houſe, to which he appealed againſt this ſentence, and deſired his appeale might be entred.

To which Mr Prynne anſwered, that he had formerly appealed from the Parliament (the ancient proper Iudge of his cauſe) to a Councel of war, and by his own voluntary motion waived his Priviledge to put himſelf upon this triall, as appeared by two Orders of the Houſe; therefore he could not now appeal back again to the Houſe, or reſume or claim his waived Priviledge after judgment. Notwithſtanding upon his requeſt his appeale was entred; yet a Guard was ſet upon his perſon at his Lodging; and upon better conſideration he ſent to withdraw his appeal that night, (though the Councell aſſented not to it) being well aſſured that the Parliament would confirme the ſentence, and perchance ſee it put in due execution.

The Proſecutors proteſting their ſorrow for the Defendants folly, in pulling p. 111ſuch a ſentence on his owne head through his vaine pride and ambition to juſtifie himſelfe, left him under reſtraint, and returned early next morning to London: where the firſt Newes they heard, was, that the Defendants friends had reported over all the City, the very evening the ſentence was given, ſome houres before it was pronounced (by way of Propheſie, or Policie rather) that Colonell Fiennes was abſolutely acquitted by the Councell, and came off with ſuch honour as none ever did before him; that not one of the Articles was proved againſt him, his Proſecutors very much blamed, and ordered to aske him forgiveneſſe at the leaſt, if not to undergoe ſome heavie puniſhment for ſlandring him; which reports were averred with ſo much confidence, that the newes of his condemnation would hardly be credited at firſt, till our Relations of the truth of his ſentence to ſome Members of the Houſe, ſeconded with Letters from Saint Albans, and ſome of the Councells owne atteſtations, quite allayed this falſe Allarme by degrees.

After which the Defendants Friends and Partiſans altering the Scene of this unexpected Tragedy, confeſſed he was in truth condemned to loſe his head, but yet he was abſolutely acquitted by the Councell of Warre from the Articles exhibited, and all pretences of Cowardize or Treachery, and condemned onelyonly for not firing the Citie, which his tender conſcience, and care of the Parliaments honour, would not permit him to turn into aſhes, to the ruine of many innocents: And withall they further bruited, that the Defendant was wholly acquitted by three of the ancienteſt beſt experienced Souldiers and religious party in the Councell, and condemned only by ſome of the younger deboiſter Colonels, &c. caſting ſundry groſſe aſperſions both upon the Proſecutors and Councell, to their intolerable diſgrace in all places, companies, with incredible impudence, (young Sprigge a Miniſter preſuming to cenſure both the Councell, Proſecutors, and Sentence, in the very Pulpit,) making lyes their refuge to over-top the truth. To make theſe falſe reports more currant, they likewiſe reported, that the Colonell was ſet at liberty and pardoned within two dayes after his ſentence by his Excellency, who therby declared him innocent and unjuſtly condemned. Hereupon the Proſecutors to vindicate the Councell and themſelves from theſe impudent ſcandalous reports, (divulged with ſo much confidence, that they paſſed every where for currant truths) drew up and exhibited this enſuing Petition to the Houſe of Commons.

To the Honourable, the Knights, Citizens, and Burgeſſes in this preſent Parliament aſſembled,

The humble Petition of Clement VValker and William Prynne, Eſquires.

Sheweth,

THat your Petitioners, by publike Proclamations (poſted up at Weſtminſter and the Exchange) and by private Summons, were involuntarily p. 112engaged by Colonell Nathaniell Fiennes (who by ſeverall Orders of this Houſe, upon his owne ſpontaneous Motions, put himſelfe upon the Triall of a Councell of Warre, declining the Parliament, though a Member of it) to exhibite Articles of Impeachment againſt him, not out of any private intereſts, but onelyonly in the Kingdomes behalfe; that he, contrary to his truſt, duty, and ſundry promiſes, to defend the City and Caſtle of Briſtoll (of which he was Governour) to the uttermoſt extremity, to diſpute every foot, yea inch thereof, with the enemy; to lay his bones therein, and to make his Flag of Trace his Winding-ſheet; did moſt cowardly and traiterouſly ſurrender the ſame with all the Ammunition, Cannon, Armes, Magazines, Proviſions, Priſoners therein, and the very Colours too, into the hands of Prince Rupert, and other common enemies of the Kingdome, upon the entring not above one hundred and fifty enemies within the Line, at a place worſt fortified and guarded (who all gave themſelves for dead men, and might have eaſily been cut off at firſt;) and that before any one of the Out-ſorts taken, the Wals of the City or Caſtle once battered, aſſaulted, or the ſiege thereof continued three whole dayes, (though he wanted neither Men, Ammunition, nor Victuals, to have defended the ſame for three moneths ſpace or more, againſt all the Enemies power) to the irreparable dammage of the Republike, the loſſe of the Weſtern parts, the hazzard of the whole Realme, and infinite inriching, ſtrengthening, advantaging of the common Enemy both by Land and Sea. VponUpon which Articles, after a full and honourable hearing for nine dayes ſpace, before a Councell of War at Saint Albanes, the ſaid Colonell the 29 of December laſt was found guilty of the premiſes, and judgement pronounced againſt him, That his head ſhould be cut off.

Yet notwithſtanding ſome friends of his, to blemiſh your Petitioners, and that Honourable Councells juſt proceedings, have confidently reported in London, Weſtminſter, and elſewhere, That your Petitioners did retract all, and could not prove any of their Articles; that they cryed Peccavi, asked the Colonell forgiveneſſe; (who made ſuch a brave defence, and came off with ſuch honour as never any man did before him;) that he was abſolutely acquitted from all cowardice and treachery, and condemned only for not firing that famous City, which his conſcience would not permit, nor the Parliament in honour could not have ſuffered him to doe; That his guard continued upon him but two dayes after ſentence, that he is already ſet at liberty, pardoned, (though we humbly conceive p. 113no perſon can**The King himſelfe cannot pardon a common nuſans nor an offence or iniury againſt the Commonwealth without the Parliament; nor any offe…ce where any private perſon ſhall have a particular intereſt, as our Lawbooks reſolve. pardon his judgement in this common caſe, without ſpeciall order of both Houſes,) and ſhall ſhortly ſit in the houſe againe. By reaſon of which falſe reports, your Petitioners for their coſt and paires in this publike proſecution, have been much defamed; his Excellencies, and the Honourable Councell of Warres proceedings inſufferably traduced, truth diſguiſed, the well-affected party diſcontented, Malignants mouths opened to complaine of partiality, the Honour and juſtice of the high Court of Parliament principally intereſſed in this Triall (directed by ſeverall Orders of this Houſe) blemiſhed, and a high-way prepared in theſe perillous times (which daily produce new monſtrous Plots to undermine us) to betray all Forts, and Cities yet remaining in your power, through treachery or cowardice, if this ſignall leading preſident, of grandeſt publike concernment, ſhall be thus openly traduced, and the execution of it ſo ſuddenly, ſo ſleightly paſſed over as is reported; eſpecially ſince the condemned Delinquent hath both in Speeches and printed Relations juſtified this his unworthy action to the utmoſt before this Honourable Houſe, the Councell of War, World; not yet making the leaſt acknowledgment of, ſubmiſſion or ſatisfaction for the ſame; and denied at the Triall that Colonell Eſſex was ever Covernour of Briſtoll, or that he did apprehend or remove him, or that himſelfe was ever Governour of this City and Caſtle, or undertook to defend the ſame, or had any Commiſſion to keep it, but onelyonly to keep his Souldiers in order: the contrary of all which appeared by his owne Evidence, and that he had twice ſent for, received, accepted an independent Commiſsion, by all poſsible wayes and meanes to provide for the defence and ſecurity of the ſame City againſt all enemies and oppoſition whatſoever: And when his ſentence was pronounced, he appealed from it to the Parliament, which he had formerly declined, arraigned his Iudges after ſentence, by demanding the reaſons of their judgement, (which he ſaid he little expected) and what Witneſſes they allowed or diſallowed? and moſt injuriouſly attributed the loſſe of Bristoll and the Weſt, with our proſecution of this cauſe (proceeding meetly from his owne ſollicitation) to an Honourable Member of this Houſe, now imployed in great command with happy ſucceſſe; moſt falſly averring to the Councell, that he was thus eagerly proſecuted by your Petitioners at Sir William Wallers inſtigation, onelyonly for the great affection which he and his father did bear, and the good ſervices they had done to my Lord Generall and his Army.

In tender conſideration whereof, they humbly ſupplicate this Honourable p. 114Houſe to take the premiſes into your juſt and ſerious examination, that ſo the Authors of theſe falſe reports may receive ſuch exemplary puniſhments as may deterre others from like ſlanders; your Petitioners, and others defamed by them, ſuch juſt reparation in their Honours, as may encourage them to doe your Honourable Houſe and the Kingdome further ſervice; and the Delinquent ſuch impartiall execution, as ſhall moſt redound to the Parliaments, Republikes future ſecurity, and prevention of Offendors of this nature, without which no ſafety can be expected.

And your Petitioners ſhall ever pray, &c. Clement Walker. William Prynne.

Which Petition being publiſhed in print, conjured downe the former falſe rumours, and forced the ſhameleſſe ſlanderers to pull in their lying tongues for a ſeaſon: But not long after Britannicus (bribed by the Defendant or his Partiſans) moſt impertinently and unſeaſonably pleaded this condemned perſons innocency and pardon, notwithſtanding his cenſure; making his pretended Pardon (if granted by his Excellency) without the Houſes privity a meere act of juſtice, not of grace; for which he received a juſt Check in print; VponUpon this Britannicus not only pleads for him the ſecond time againſt the Check, but the Colonell himſelfe aſſumes the boldneſſe (inſtead of lamenting, acknowledging his grand ſtate-ruining offence) once more to juſtifie himſelfe, and cenſure both his Iudges and Proſecutors, in a printed Pamphlet inſcribed, A Checke to the Checker of Britannicus, or, The Honour and Integrity of Colonell Fiennes revived, re-eſtated, and cleared from certaine Prejudices and Mistakes, occaſioned by the late Miſreports, &c. London Printed by Andrew Coe, 1644.

That this Treatiſe was penned by himſelfe, is cleare by the ſtile, by his owne expreſſions in it uttered at his Triall, the catalogue of the Witneſſes produced on his part, and this equivocating paſſage in the Preface To all the well-affected partie in the Kingdome, viz. Rather then a Gentleman ſhould by his owne patience and modeſty ſuffer his blood to be thus hunted to the laſt drop (though for my owne part I never ſaw his face) yet having ſeen the tranſactions and proſecutions of his buſineſſe, I ſhall write not to contradict, &c. but to ſtate the condition of a ſentence, &c. Doubtleſſe no man can be ſo ſottiſh as to imagine that Britannicus (to whom ſome attribute this Treatiſe) never ſaw Col. Fiennes ſweet face, much leſſe that this Pamphlet was writ by a meet Stranger, who never really viewed his Phyſiognomy; for why ſhould any Stranger be ſo zealous for a condemned perſon whom he never beheld, as thus profeſſedly to plead his cauſe in his owne words; or how could he come to know the tranſactions, proſecutions of this buſineſſe, and names of his Witneſſes, as they are there related, being never yet publiſhed in print? Therefore this equivocating paſſage proves it was penned by himſelfe, p. 115who never ſaw his own face really, but onelyonly the ſhadow of it in a glaſſe, though he might haply view his ruby Noſe without a Mirrour.

The whole ſcope of this new Check-worke is, Firſt, to juſtifie this Delinquents innocency againſt his cenſure, to lay an aſperſion on his Iudges and the Law of Warre, by which he was condemned, the whole contexture tending to prove he had**See Obiection 7. in the Check. ſummum jus, and ſo ſumma injuria in his condemnation; that the Law of War is unjuſt, yea againſt Gods Law; and that he was condemned for not holding Briſtoll to the utmost extremity, not according as extremity is commonly taken and received, but according to the ſtrict Martiall interpretation of extremity; for obeying the Law of God before the Law of War, in not burning to the ground the ſecond City of the Kingdome, and for not doing ſo much evill that good might come of it: Whereupon he profeſſeth himſelfe no Delinquent, but a juſt perſon, notwithſtanding his condemnation, in theſe very termes; I am farre from writing an Apologie for A DELINQUENT, and as far from writing A DELINQUENCY ON A IVST PERSON: (O ſtrange ſelf-Iuſticiary, O moſt impudent affronter of Iuſtice!) But whether he be ſuch an one or not, the premiſed Relation, and ſubſequent Depoſitions, will ſoon diſcover to his ſhame.

Secondly, to magnifie his owne (unknowne) valour, and to applaud himſelfe, as aaSee his Commentary on his pretended Pardon.a perſon enabled with excellent gifts and endowments, deſerving highly of the Republike for his former Valour and Services, &c. A pretty modeſt Trumpeter of his owne praiſes.

Thirdly, To aſperſe his Proſecutors with injurious calumnies, who only for craving Iuſtice againſt this impenitent obſtinate Malefactor (who will neither confeſſe nor lament his Realme-ruining offence) are falſly branded with the Titles of Hunters after the laſt drop of his blood, men destitute of Charity, The Prologue to all the well-affected Partie, and Quere's.bribed Lawyers, ſad and fatall inſtruments of Malignants, wittingly or ignorantly put on by: ſome Malignant, or Ieſuiticall ſpirit to fement diviſions; to carry on the grand deſigne of the Enemy, &c. whereas their fidelity and ſervices to the State, their oppoſition againſt Malignants, and their miſchievous deſigns, (which the Defendant hath advanced more then any man) with their patient, unbloody, charitable Deportment after ſo many publike Defamations, and unſufferable affronts to publike Iuſtice, might have demerited better language from him, who endeavoured (out of his abundant charity) to deprive them both of their Liberties, Reputations, Members, Lives, (had he been acquitted) only for impeaching him for this diſhonourable ſurrender upon his owne engagement.

Fourthly, To ward off his feared Execution of his demerited Sentence and crave the allowance of his pretended Pardon, to ſave his unworthy life (which he refuſed to hazard to preſerve the Kingdome in holding Briſtol;) when as a man of true valour and honour would rather have loſt a thouſand lives, then endeavour to ſave one by ſuch ignoble ſhifts and impudent falſe Apologies.

It is not our intention to give any particular Anſwers to the Arguments produced in his Check, whereunto this whole Relation of the Tryall gives the Mate; only we ſhall briefly examine the validity, detect the abſurdity of the two beſt Arguments of his Innocency deduced from his ſentence and pretended Pardon, not formerly anſwered, being ſince the Tryall, and ſo conclude.

p. 116His Argument from his ſentence is this:Argum. 1. The Article of warre is the hinge upon which the ſentence only moves: here is no concomitant expreſſion of cowardize or treachery, ſo as the guilt is externall, and not internall; a guilt of diſproportion and want of commenſuration to the Article: and he was condemned to loſe his head only for not holding out the Town to extremity in a Marſhall interpretation, according to the very Article of warre; for not firing the ſecond City of the Kingdome, and for obeying the divine Law of God against the Law of Warre in not doing ſo much evill, that good might come thereof: (So he moſt abſurdly falſly and ſcandalouſly argues,) Ergo, the ſurrender was neither cowardly nor trayterous.

To which we Anſwer:Anſwer. 1. 1. That this is the firſt Argument we ever yet heard of this nature, that a mans very ſentence of condemnation, ſhould be a Declaration of his Innocency in that for which he was condemned. I am condemned only according to the Letter and true meaning of the Law: Ergo, I am Innocent, Guiltleſſe, and deſerve a Pardon; (the whole ſubſtance of this Argument) is ſuch a nonſence contradiction, as becomes none but ſuch who have loſt their Heads, as leaſt their braines.

Secondly,2. The very ſentence expreſſeth, that he was arraigned and convicted before this Honourable Councell, for ſurrendring and delivering up the Town and Caſtle of Briſtoll, with the Forts, Magazines, Armes, Ammunition, Victuals, and other things thereunto belonging, and for not having held the ſame to the utmoſt extremity, ACCORDING AS BY YOUR DUTY YOU OUGHT TO HAVE DONE: (this is the only ground and reaſon of the ſentence:) For WHICH OFFENCE this Honourable Councell hath adjudged you to bee executed ACCORDING TO THE TENOR OF THE ARTICLE OF WARRE, by having your head cut off from your body; So as the Article of warre, is made the rule only of the Iudgement and execution, but the not doing of his duty the crime, and ground of his Iudgement, by the very words of the ſentence: So that all his large Diſcourſe that he was condemned only by the rigor of the Article of Warre, which is Summum Ius, is a mecre wilfull calumny.

Thirdly,3. whereas hee principally objects; that the Sentence chargeth him not with the concomitant expreſſions of Cowardize or Treachery: Therefore he was guilty of and condemned for neither. The anſwer is very cleare, that he was condemned for both by the very Sentence: For it recites, that he had been arraigned to wit, upon our Articles of Impeachment, which expreſly charged him that hee had Trayterouſly and Cowardly ſurrendred the City and Caſtle: upon which impeachment hee was both convicted and condemned to loſe his head: Now if the ſurrender had not been traytorly and cowardly, he could neither in Law nor equity have been convicted or condemned upon this impeachment, but acquited. His condemnation therefore being grounded on, and his ſentence relating unto our Impeachment: Hee muſt of neceſſity bee guilty of treachery and cowardize; and though the very words be not expreſſed in the ſentence, yet they are neceſſarily imployed in this clauſe; For ſurrendring and not holding out the ſame to the utmoſt extremity, according as by your duty you ought to have done: For he that ſurrenders a fortified Town before utmoſt extremity contrary p. 117to his duty; muſt of neceſſity bee interpreted to doe it out of treachery or cowardize, or both conjoyned (cowardize being the greateſt betrayer of truſt) and the only reaſon why the Law Marſhall makes ſuch a ſurrender Treaſon, puniſhing it with death, is, becauſe it preſumes it traytorly and cowardly: Yea the ſole cauſe why theſe expreſſions were omitted in this Sentence was, becauſe they are not mentioned but meerely implyed in the Article of Warre it ſelfe, by which the ſentence was drawn, and to avoyd prolixity in reciting that at large which is neceſſarily underſtood and ſupplyed by other words.

Fourthly,4. Whereas hee ſaith, his guilt is externall, tis very true; the whole Kingdom beheld his cowardize and treachery with griefe, yea deteſtation, and thought him worthy to ſuffer for it: but that it was not internall, is but his own averment, which his externall guilt diſproves; and himſelfe confeſſing that he was externally guilty (and for this moſt juſtly condemned according to the Letter of the Law) he may be as juſtly executed.

Fifthly,5. For his pretended mortall equity to extenuate his offence; that he muſt have fired the City to the ground, &c. it is but a meere groundleſſe argument; and an inſufferable aſpertion both to the Parliament and Honourable Councell, he being neither accuſed nor condemned for not firing the Town, but for not holding it and the Caſtle to extremity, which he might eaſily have done without burning it to the ground, as the premiſes demonſtrate.

The laſt Argument of his guiltleſneſſe (on which he principally relies) is his Excellencies pretended Pardon,Argum. 2. whereon he hath made a large comentary.

To which wee ſhall give theſe Anſwers,Anſwer 1. we hope without offence to any. Firſt, that we are not aſſured that the Defendant hath any reall Pardon of his Sentence; the rather, becauſe the Houſe of Commons whereof he is a Member, and which referred him to his tryall, was never yet acquainted with it, nor privie to its granting, for ought we finde in the Journall Book, as we conceive of right they ought to have been, at leaſt wiſe by the Defendant, who hath forfeited the benefit of it, by this ſlighting of the Houſe.

Secondly,2. Admit he hath a Pardon from his Excellency, yet then we may juſtly queſtion: 1. Whether it was not ſurreptitiouſly procured, upon meer miſinformations, of the Defendant, or his Friends (his Lordſhip being not preſent at the Tryall) which miſ-informations (over-frequent in all ages) nullifie the Kings own Pardons, Charters under the Great Seale of England; much more his Excellencies, by like reaſon? 2ly, whether it was not penned, at leaſtwiſe altered, corrected by the Delinquent himſelfe (or ſome neare friend of his) before it paſſed his Excellencies ſignature? the whole contexture ſavouring of his ſtile, containing many expreſſions verbatim, which he uſed in his defence: and his bold Commentary on it, giving us ſome grounds of conjecture, that he firſt made or corrected the Text it ſelfe, before it was Authentick, it being frequent in other caſes to doe the like. 3ly, whether the Copy printed by him, be agreeable to the originall Pardon? the Record whereof being no where extant to our knowledge by which we may compare it, and the &c. in it aſſuring us, that ſomething is concealed in the printed Copy which would have made for our advantage, if recited? Now if all or either of p. 118theſe prove true (as we doubt not but they will upon due examination) that this pretended Pardon was ſurreptiouſly obtained by miſinformation; or peruſed, corrected, by the Delinquent or his friends; or the printed Copy of it, falſe or maimed; his Arguments from and gloſſe upon it, will rather diſcover his fraud and guiltineſſe, then vindicate his valour, fidelity or innocency in this Action.

Thirdly, we anſwer, that the Pardon recites how his Excellency by vertue of an Ordinance of both Houſes of Parliament hath given and granted to the ſaid Colonell a free and full pardon of all manner of offences, errours, and overſights committed in the ſaid ſurrender of the City and Caſtle of Briſtol. But we never yet heard of any ſuch Ordinance of both Houſes authorizing or allowing this Defendants Pardon, having cauſe to believe that the Houſes will be very cautelous of granting or allowing any Pardon in this caſe, which ſo highly concernes both Houſes, and the whole Kingdomes ſafet, by reaſon of the ill conſequences it may produce. We read in EmanuelaaBelgica Hiſt. Ʋniverſalis l. 13 p. 402. 403. 404. Meteranus,bbPag. 827. 828. Grimſtons Hiſtory of the Netherlands, Thuanus and others, Anno. 1587. That Van Hemert a very wiſe and brave young Noble-man, one of the chiefe houſes of the Netherlands, and Governour of the Town of Grave, together with two of his Captaines, Du Banck and Korfe were impriſones, condemned by a Councell of warre, and then beheaded and executed at Bommel by command of Robert Dudly Earle of Leyceſter (Governour of the Law-Countreys under Queen Elizabeth of famous Memory) for that they ſurrendred the ſaid Town of Grave to the Prince of Parma, when he had beſieged it above three Moneths ſpace, with a puiſſant army and beaten down the wals of it leavell to the ground with perpetuall batteries and aſſaults: And although there appeared no treachery at all, nor any intelligence held with the Enemy, in this caſe, and that the Governour condeſcended to a Treaty and ſurrendred the Town to the Enemy only upon the Citizens importunity, who earneſtly intreated him upon their knees with teares in their eyes to embrace a Parley, for the ſaving of their lives, eſtates, and liberties, which were granted them upon the Articles of agreement; and although the Garriſon ſouldiers likewiſe marched away with their Armes (which they left behinde them at Briſtoll) and had all the Articles punctually fulfilled; and although himſelfe and his potent friends earnestly beſought the Earle of Leyceſter, that he might ſerve the Queen of England either by Sea or Land, at his own charges, and by his valour and fidelity make recompence of his fault committed only through want of underſtanding and marſhall pollicy, contrary to the will and intent of the Earle then Governour Generall under the Queen, yet the Earle, for upholding martiall Diſcipline, and to prevent all future ſurrenders of this kinde, would on no wiſe diſpence with the execution; whereupon they were all there openly beheaded at Bommel, Iune, 28. 1587, which was held a good example, to the great furtherance of marſhall diſcipline, which at that time was much decayed. And whether theſe times call not for a like example (when ſo many treacheries and acts of cowardice break forth in ſundry places to the endangering of the State and Parliament) we ſubmit to the determination of the ſupreame Councell of the Realme to whoſe deſcition it properly belongeth, to pertermit or haſten the Defendants execution: who ſhewed farre more cowardice at leaſt (if we ſay not treachery) in ſurrendring Briſtol in p. 119leſſe then nine dayes ſiege, then Van Hemert did, who held out Grave above three monthes, till the Wals were demoliſhed, and yet then marched away withall the Garriſon and their armes too; and then moſt Governours elſe have done: the very inconſiderable ſmall Town of Lime ſtanding but in a hole, and having no conſiderable works about it, or proviſions in it comparable to Briſtol, together with Warder Caſtle, and other places, holding out more moneths againſt the Enemies ſtormings and aſſaults, then the great City and Caſtle of Briſtol under his command held out dayes; yet hee will needs juſtifie to the world both in his ccSee here, p. 21.Anſwer and printed Pamplets (with how little truth or colour let all men judge,) That he held it out to the utmoſt point, not only of duty, but alſo of Honour, that any Souldier could or ought to have maintioned the ſame.

Fourthly, Wee anſwer, that the ſuggeſtions and principall grounds of the Pardon relating to the Proſecutors, and Counſells ſentence, in the ſence they are preſſed and made uſe of, are meare miſrecitalls, miſinformations, (which vitiate the Pardon) as all the premiſes, and ſucceeding teſtimonies evidence; As for his Excellencies own teſtimony of his Integrity in the Scottiſh Negotiation, Ann. 1641, and endowments FOR OTHER IMPLOYMENTS in the State; they are no convincing Arguments of his courage, integrity, or extenuations of his cowardize and treachery in ſurrendring Briſtol; nor yet his pretended valorous carriage at Keinton Field atteſted by Sir William Balfour, as we have formerly evidenced. Therefore there is nothing in his Pardon that can any way acquit him from cowardize or Treachery in the ſurrender of Briſtol. And the words OTHER IMPLOYMENTS, &c. diſcover, that his Excellency deemes him a better Commiſſioner then Souldier, and we wiſh he had ſhewed himſelfe either a good Treater or Commander at Briſtoll, where he was neither one nor other, for then we are certaine, hee would never have yeelded up all the Ammunition, Canon, Magazines, Armes, Priſoners, and Colours to the Enemy, together with the City and Caſtle, before any one For taken, or any one aſſault ſo much as given, or Canon ſhot made againſt the City or Caſtle walls, which had 2300 armed Garriſon Souldiers at the leaſt, then ready to defend them.

In fine, both his Sentence and Pardon (be it what it will) are apparant demonſtrations of his guilt and capitall offence. And whether his carriage in this action hath been ſo valorous, ſo free from all umbrages of Treachery, as may juſtly demerit anaaSee the cloſe of his Pardon. abſolute Pardon and diſcharge from the execution of his capitall puniſhment; and ſuch a ſpeedy releaſe from all future impriſonment, reſtraint, and likewiſe from all further impeachment, or proſecution concerning the ſaid ſurrender; (at leaſtwiſe from giving any account of the many vaſt ſums received by him at Briſtol; and the debts he there contracted on the State, of which no account at all hath hitherto been given, though long ſince promiſed and required) let the enſuing Teſtimonies at the Tryall determine, with which we ſhall conclude this tedious Relation.

Errata, tranſpoſitions, and omiſsions at the Preſſe.

PAge 21. l. 46. read; he did. p. 22. l. 36. 37. ran fast; he was. p. 52. l. 37. murtherers p. 53. l. 6. and av. p. 57. l. 46. no ill. p. 65. 4. their incontainability. l. 12. knew l. 42. might muſt. p. 78. l. 8. as well. p. 92. l. 25. I am.