nors might draw out their garrisons, or desert their charges at their pleasure, their forts might be easily surprized, betrayed, and a gap opened to infinite treacheries. 2. He produced his cousin capt. Temple to testify, that a gentlewoman of his acquaintance, and of kin to col. Fiennes, overtook another gentlewoman upon the highway, newly come from Oxford; of whom asking what news, she answered, that the greatest news now at Oxford was, that though sir William Waller had occasioned the loss of Bristol 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 Parlia ment, now in the field with an army, they would forbear to question him, and sacrifice col. Fiennes to humour him and his party. To which Mr. Prynn answered, (1.) That this extravagant report, testified only at the third or fourth hand, was no evidence at all, and savoured rather of a direct plot to traduce sir Williain Waller than to justify col. Fiennes. (2.) That all the western gentlemen had a quite contrary opinion of this business, that Bristol and the West were lost by the Defendant, not by sir William, as appeared both by their extraordinary respects unto him, and present employment of him to regain the West. (3.) Admit this fabulous report to be bruited in Oxford, (to asperse sir William and the Parliament, and justify the Defendant) yet it signified no more, but that col. Fiennes had better friends and respect at Oxford than sir William Waller, perchance for his good service in surrendering up Bristol to them at so easy a rate in so short a time (enough to purchase him both friends and favour at the court;) where sir William was not so grateful, because he never did them so great a courtesy, or good piece of service, nor the republic so grand a mischief. 3. Col. Fiennes, for a conclusion of bis Defence, informed the Council, That this trouble, prosecution, and disgrace had never befallen him, but for that constant affection and ser'vice which he and his family had always shewed to his Excellency and his army, for which sir William Waller and his party did malign ⚫ him,' To which Mr. Prynn replyed, That this was a most false, scandalous and seditious speech, discovering who they were that raised and fomented the late unhappy differences between his Excellency and sir William, and to what sinister end; that nothing could be uttered more effectual to set all the Parliament's several armies into a faction against one another, instead of joining against the public enemy; and therefore having neither the least ground nor proof to justify this calumny, he desired he might be exemplarily proceeded against for it. In fine, after some hear-say Proofs, what opinion the enemies had of his valorous defence of Bristol, and the intenability thereof, and a recapitulation of all the beads 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 Bristol: And now I beseech you 'to consider, whose honour or life can be in 'safety, if lawyers (fee'd by their own malice) may sift and turn up all his actions, and snar at his words; if such who are no soldiers may, upon the information of attorneys, and testimony of shop-keepers, ale wives, enemies, but of no soldiers at all, (except such who appear ' out of particular spleen) be brought thus upon the stage for their lives, and the great privileges of Parliament broken by such an impeachment of a member of it, which could not be paralleled but by that accusation of the Five Members. Wherefore I desire, that 'as I have served my country faithfully, and 'done many good services for it, so I may by this honourable council be justified in my faithfulness, and repaired against the prosecutors in my honour, more dear unto me than my life; that so after all my public services, I may not now be cast behind the door like a 'dishclout, unfit for any further employment." To which Mr. Prynn replied, (1.) That he wondered much why the defendant should thus except against him as an unfitting prosecutor, since himself (without his privity or desire) had by a proclamation under his excellency's hand and seal, posted up at Westminster and the Exchange, selected him and Mr. Walker by name to prosecute this business against him: if then we were unmeet prosecutors, it was his own, not our error, and he must blame only his own judgment in the choice, not us. (2.) 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 kingdom, contrary to law: and whereas the defendant scandalously objected, that he was fee'd by his own private malice, he protested that there was never any malice, nor cause thereof 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 Bristol, bred up some years therein, had many friends and kindred in or near it, who lost much, and himself not a little, by its surrender; that nothing had engaged him in this prosecution but the defendant's own suminons, nor fee'd him but the public service of the parliament, and security of the realm: and although he had lost and suffered much for the church and state,- yet he never received nor expected the least recompence, much less reward from either, nor ever had any pay for public 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 state's, as be had done, but only what was his own, (his liherty, calling, estate, members) and that only for doing the church and kingdom service; none of all which the defendant had parted with for the public. And therefore whereas the defendant boasts of his public actions, he could w caout vanity or prejudice truly affirm, he had orders, upon his own motion and pretended duce teu thics more service for church and voluntary waving of his privilege, before any state, and suxered a thousand-fold more for impeachment put in against him; which im both, not only gratis, but even with the loss peachment was first tendered to the house of of all his earthly comforts, than this boaster had commons; who, upon the reading of it, with done upon pay; and that he doubted not, one unanimous vote referred it to his excclthrough God's assistance, he should be able to lency, to be procceded on by a free and fair do the church and state as good or better ser-hearing before this honourable council: and if vice for the future as he: wherefore he had the proceedings on this impeachment upon his little reason to extol himself so much, or de- own motion, by the commons direction, be a press him so low, as not to be a fitting prose- breach of privilege, it is only in himself and cutor of such an unworthy action. That though the parliament, not in us; and it hath no more he were no professed soldier, yet he doubted resemblance to the case of the Five Members, not but he had read as many or more treatises than an ape to a lion. That he was now quesof military affairs than himself; that he had tioned, not for his faithful but unfaithful serfor eight years space of his restraint in the vice to the republic and parliament, in the surTower of London and Mount-Orguiell castle, render of Bristol, in which he presumed he conversed with old soldiers (and by name with durst not manifest himself so far a papist as to sir William Balfour for five years in the Tower); plead a justification by works, or absolution by from whom he gained so much experience in preceding merits. That he needed not to crave martial affairs, as he would have undertaken to reparation of his honour and reputation from have kept the City and Castle of Bristol till us or any other in this case, since they were this day, bad he been governor there as the de- both impaired and ruined by himself through fendant was, notwithstanding their pretended this ignoble action: that he had given the intenability, and the enemy's power: that in whole kingdom an incurable fatal wound, and the managing of this very business before this irreparable loss, (which the loss of his head and honourable council, he had in sundry particu- estate could no way recompence) by this sur lars manifested himself, if not a better, yet at render, for which in the whole kingdom's beleast as good a soldier as the defendant, for half we here demand judgment against bin acwhich he appealed to the council) and in re- cording to the quality of his offence: that our gard of his long suffering and restraint in cas- services for the republic were every way equitles, was the antienter soldier of the two: that valent to, if not transcending his; our credits, the defendant had confessed to the lieutenant- our reputations, as dear to us as his to him, colonels Paleologus and Andrews, when he which he hoped should no ways suffer for our first undertook the government of Bristol, zeal and fidelity in this public prosecution upon That he was no soldier;' and his yielding it up our own expences, without thought of recomin a short time, before extremity, upon such pence. That if the defendant should be propoor conditions, manifested him in truth to be nounced guiltless by this honourable council, no man at arms; and therefore though he after so full a charge and hearing, he was were no professed soldier, yet why he should obliged to us for bringing him to such a public not be a soldier sufficient to prosecute him, vindication of his suspected fidelity, which else who, by his own confession and action, is no would have lain eclipsed under a black cloud real soldier, he could yet discern no reason. of jealousies: but if he were pronounced guilty For his witnesses, whom he here vilified and of the impeachment, (as we made no doubt he traduced, they were many of them persons of would, the evidence being so clear, the proofs quality and honour, some of them members of and precedents in point so punctual) we should parlament; others more expert soldiers, and deserve thanks, if not from him, (who pretended persons better ver-ed in martial affairs, than a desire to be tried to the uttermost) yet at ny of the defendant's witnesses; all of them least from the parliament, kingdom, and our persons of good fame and conversation, disin-nat.ve country, for bringing such a grand, poterested and disingaged in the cause, against whom no exceptions can be taken: when all his material witnesses were his own 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 drawn in question only by himself, upon his own motion and engagement of us; and if he lost them (as he lost Bristol), he might thank himself for interesting us in this public service, for our country's honour and future security, the only thing we aimed at in this present prosecution. That his pretended breach of privilege of parliament was but a fancy, already answered and over-ruled in the commons house, who referred him to a trial before a council of war, by two several litic, daring delinquent to his trial and condign judgment; who by surrendering Bristol hath endangered the loss of three whole kingdoms, and of our laws, religion, liberties, lives, and present parliament. And now (my honoured lords and gentlemen) lest we should incur your just censure (according to the defendant's doctrine) for storting out this cause over-long, which, by the defendant's tediousness hath lasted nine days dispute, (though the city's siege continued not three full days) we shall close up all in a word or two: we render you many hearty thanks, in our own and the kingdom's names, for your nine days pains, patience, and that fair, honourable, impartial hearing you have afforded both parties in the trial of this great public cause, in which the whole realm is interested, and whereon their eyes are fixed; not doubting but as you have granted us a most full, fair, indifferent hearing, so you will in due season, after serious perusal of your notes and the evidence on both sides, give such a just and equal sentence as shall chronicle your justice to, and make this case a leading precedent for, all future times, to deter all governors of towns or castles from cowardly, traitorly, or unworthy surrenders of them. Thus ended the long debate of this great cause, begun on Thursday the 14th of December 1613, and concluded on Saturday the 23d of December. After which both parties were ordered to attend the council again on Friday following, being the 29th of December, to bear sentence, the council desiring so much respite to peruse their notes, and prepare their judgment. Who sitting again, and we attending them, on the designed day, the council first delivered their several judgments of the cause among themselves in private; after which col. Fiennes was disarmed at the council-chamberdoor, (whereat he was much appalled) and then he and we being called in, the Judge Advocate read his Sentence out of a paper in hæc verba: 'Colonel Nathanael Fiennes, you have been arraigned and convicted before this honourable Council, for surrendering and delivering 'up the Town and Castle of Bristol, with the forts, magazines, arms, 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 council hath adjudged you to be exe The Defendant, astonished at this Sentence, told the council, that he little expected such a Sentence from them; and 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 again, the Defendant was told, it was against withdraw for a short space, and then called in the style and honour of the Council, to be ' demanded the reasons of their Judgment after 'it was once pronounced.' Upon this the Deand claimed his privilege; that he ought not to fendant alleged, that he was a parliament-man, be condemned without the privity of the Commons House, to which he appealed against this Sentence, and desired his Appeal night be entered. To which Mr. Prynn answered, That he had formerly appealed from the parliament (the antient proper judge of his cause) to a council of war, and by his own voluntary motion waves his privilege to put himself upon this trial, as appeared by two orders of the house; therefore he could not now appeal back again to the house, or resume or claim his waved privilege after judgment. Notwithstanding, upon his request, his Appeal was entered; yet guard was better consideration he sent to withdraw his set upon his person at his lodging: and upon Appeal that night. He was afterwards pardoned by the Lord General. CASES OF COWARDICE, Referred to in the foregoing TRIAL, as stated from the Records by Mr. Prynn. BY the laws of king Edward the Confessor, he who flieth from his lord or fellowsoldier for fear of war, or death, in the conduct of the heretock (or captain) in any expedition by sea or land, let him lose all that is his, and his very life, and the lord may lay hands on the land which he had formerly given to him. And he who shall be slain in war before his lord, be it in the land or elsewhere, let his reliefs be pardoned, and his heirs enjoy his money and land without any diminution, and divide it among themselves. By the Statutes of 18 Hen. 6, c. 19. 7 Hen. 7, c. 1. 3 Hen. 8, c. 5. 2 Edw. 6, c. 2. 4 & 5 Phil. & Mary, c. 2, 3. 5 Eliz. c. 15, it is made no less than felony and death for any soldiers to depart from their captains without their licence under hand; for which many soldiers have been condemned and executed. Coke's 6 Rep. f. 27, in the Case of Soldiers: Lambard. Arch, fol. 1, 5. De Heretochiis. And before these Statutes, Thomas earl of Lancaster was proclaimed a traitor by the whole army, in the 12th year of king Edw. 2, for departing in discontent from the army at the siege of Berwick, by means whereof it was not taken, and the siege raised. Henry de Essex's Case, 2 Hen. 2. Henry de Essex, standard-bearer to the kings of England by right of inheritance, was accused of high treason in the 2nd year of king Henry 2, by Robert de Montford his near kinsman, and vanquished by him in a duel at Reading for his cowardly abandoning and throwing down the standard-royal in NorthWales, in the battle against prince Owen, amidst the mountains, and flying when fiercely Walsingham's Hist. p. 89. Holingshed, Grafton, Stow, Speed, Trussel, in 12 R 2. Dan. p. 18. Speed, p. 502. Holin, and Stow, an. 2 H. 2. assaulted by the Welsh, whereby the king's army was endangered to be routed: whereupon though his life was pardoned, yet his Jands were seized into the king's hand, and he shorn and shut up a monk in the abbey of Reading, where he died. Thomas Katrington's Case, 50 Ed. 3. and castles, it was commanded to sir Alexan'der de Buxhall, constable of the Tower of London, that he should cause to come before 'the lords in parliament at Westminster, on Friday the 27th of November, in the year 'aforesaid, sir John de Gomeneys and William de Weston, apprehended and detained in the 'said Tower by the command of our lord 'the king, because they had lost and rendered 'castles and towns to the enemies of our lord 'the king, to answer thereunto, upon the arti'cles which shall be surmised against them for 'the said cause, on the behalf of our lord the John and William, being brought by the said king. Upon which day of Friday the said 'constable before the lords aforesaid in full parliament, sitting in the White-Chamber, they 'were severally arraigned at the commandment of the said lords, by sir Richard Lescrop, kt. 'steward of the house of our lord the king, in manner as ensueth: 6 William de Weston, you took upon you 'from the most puissant prince, whom God asfather of our lord the king that now is, safely 'soil, sir Edward late king of England, grandto keep to him and his heirs, kings of Eng land, the castle of Outhrewyke, without sur' rendering it to any one but to the said grandfather, or to his said heirs, or by command 'from him or from his said heirs: Have you, 'William, who are a liege-man of our lord the king, in times of the same our lord the king Sir John Annesly, knt. in the parliament of 50 Ed. 3, (commonly styled, The Good Parliament) had accused Thomas Katrington, esq. of treason for selling and delivering up the Castle of St. Saviour's (built by the lord John Chaundois within the isle of Constantine) to the French, for an inestimable sum of money, when as he wanted neither means of defence, nor victuals: which castle, had it not been thus traiterously alienated, had descended to the said sir John in right of his wife, being next heir to the lord Chaundois, offering to make good this accusation, and try it out by duel: whereupon the said Thomas Katrington was then apprehended and imprisoned; but soon after, by means of the duke of Lancaster and the lord Latiner, who then did what they pleased, released, being formerly their instrument and creature in peace and war, in all just and unjust, in true and false things; neither could the said sir John obtain the effect of his suit till the parliament of 3 R. 2, A. D. 1380, some men alfinning, That it was against the laws of the realm for any man of the realm to fight such duel for such a cause; many who feared the like tax and accusation did most of all hinder this trial: but at last, in this parliament, the antientest and truth-speaking knightsmand from him, to the dishonour, or damage, of the realm being assembled, it was resolved, that for a foreign cause, such as the present was, which arose not within the limits of the kingdom, and for the possession of transmarine things, it was lawful for any man to fight a duel, if the cause were before certified to the constable and marshal of the realm, and the duel accepted by the parties in their presence. Whereupon a day of battle, and lists, were appointed them in the court at Westminster, where ths duel being s lemnly fought on the 7th of June between these two champions, in the presence of the king, nobles, and an infi-schedule for a final answer in this behalf, or nite multitude of people; the traitorous esquire not? And hereupon the said William prayed was vanquished by the knight, to the joy of him, and that he might put in his final anthat this schedule might be re-delivered to the common people, and to the grief of trai-swer; which schedule, for the cause aforesaid, tors: The esquire, who fainted in the place, died the next morning. 6 who now is, true heir to the said grandfather, enemies of our lord the king, without com'delivered and surrendered the same to the realm of England, against your allegiance and ' of him and his crown, and of the estate of his undertaking aforesaid? What will you say 'hereunto? 'Whereupon the said William said, that he had put his answers in writing, and produced before them a schedule containing many 'things comprised within the same, and came and read the said schedule in full parliament. Whereupon it was demanded of him by the said steward, if he presented before them this please you to remember, how that the said ders, galleries, and all other necessaries, to be William was lately informed by a spy, that a drawn up near to the very ditch of the aforegreat power of the enemies would come upon said Castle; and the next day, which was Sahim to besiege the said Castle, with very great turday, they made all things ready plainly for and very grievous ordnances; whereupon he to assault the place; and then first of all they the said William presently by his attorney and sent an herald to the said William, to know if by his letters, required of the said council, the said Castle should be rendered to them or 'that it would please them to reinforce the said not? Whereupon the said William by advice of 'Castle, with more men for the defence and the wisest of his companions, taking considera'safeguard thereof, in regard that the garrison tion how that the said place was destroyed and of the said Castle that then was, were not enfeebled with their ordnances, and also that half sufficient in respect of multitude to resist they were too few men for its defence, by reason so great a force in so large a place; but in that 12 of their companions were in this time 'conclusion for all this, he could not have any slain, wounded, and sick, so as there remained succour from the said council. And so the of all the people of the garrison in health but 'said William, not at all through his default, only 38 men to defend the same: Hereupon by was left without people sufficient for to keep common assent the said Castle, which could be and defend the said Castle any longer time, kept no longer, was by force surrendered for to which he beseecheth you to take into your save their lives granted to them, and their just and benign consideration. Also, please goods. And that all these things aforesaid are you to know, how upon a Monday about 1 of true, the said William puts himself upon his the clock the enemy came to besiege the said proof, according to your discreet ordinances. Castle, to the number of about 2,600 men of Also it is to be remembered, that when the arms, and 700 Arblasters Genevoyes, and with said Castle was thus rendered as aforesaid cer5,000 of the commonalty of the country, hav-tain French people bargained with the said ing 9 great cannons, divers engines, and one William for his victuals to buy them, together mortar-piece, beyond all measure greater with certain prisoners which the said William than ever they had seen any before in those held imprisoned within the said Castle, for 'marches; and the same hour presently a which things he received of them for his paygreat number of the men of arms, and arblas- ment 1,500 franks; of which he paid to his ters aforesaid, came before the gates for to companions for part of their wages which was 'assail the said Castle; and at this time a behind unto them for one quarter of a year knight of theirs was slain, who was cousin to and a half 78 franks; likewise after was paid the lord de Clisson as was reported, and many at Calais for the victuals of the said Castle 'others were likewise then slain and wrecked; before that time due, 442 frauks; also for the and within a short time after they began passages of the said William and of his compato discharge and shoot with their ordnances, nions unto England, and likewise for the exand other engines, and so continued their as- pences of the said William being at Calais, 135 sault from one day to another, that is to say, franks: And therefore the said William pray. Tuesday, Wednesday, and Thursday, and then eth, in this regard, your justice and benignity, were the walls and houses of the Castle bat- seeing by envious suggestion he hath against all tered down and bruised in many places; and reason been accused, whereby his estate and they had likewise by force trenched the ditches name, by the grievous sin of misinformers, and of the said Castle in three places, so as all the he also are ruined; having likewise considerawater was drained out: and that night came tion that out of his proper goods he hath for a great party of them, and by fine force made the greater part paid his companions their wages an assault and abated the barricadoes; and which were due unto them as aforesaid, and the next day, which was Friday, they came also for the great costs he hath been at before about day-breaking with all their forces to this time for to victual the said Castle, (for 'assault the said Castle; but with God's as- which he hath given his obligations in divers sistance they were yet repulsed with force places, and oweth great sums, by reason where'from their assault, and of the one part and of he is on all sides undone, if your just benig'other there were some slain and wounded. nity does not succour him; that you would be And the same day the mareschal of Burgoyne pleased for God's sake, and for pity, to ordain 'sent to the said William and others of the said likewise for him, that he may, by your discreet 'Castle to render it, whereupon having consider- nobleness, recover his estate and goods. Also 'ation that the said Castle could not be kept, as the said William Weston sheweth how, the 'well in regard of the small number of the people, first day when the enemies came before Arde, 'as by reason that the walls in many places that he went in haste to Calais unto the cap'were enfeebled by their marvellous ordnances, tain, and desired of him more succour and aid there was a treaty with the lords to this end, of men for the better guarding of his fort of 'that the said William and his companions Outhrewyke, and to defend it if the enemies 'might advise themselves against the next should come thither. And the captain anmorning; and so they departed each to their swered him briefly, That he would not deliver, 'own.' Also this same night the enemies nor give him aid nor succour at the said time, caused all their ordnances, engines, mortar- because he doubted that the said enemies would piece, cannons, and faggots, with scaling lad- come before the town of Calais. And the |