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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A91306	A true and full relation of the prosecution, arraignment, tryall, and condemnation of Nathaniel Fiennes, late colonell and governor of the city and castle of Bristoll, before a councell of war held at Saint Albans during nine dayes space, in December, 1643. Touching his cowardly and traytorly surrendering of this city and castle, with all the canon, ammunition, arms, magazines, prisoners and colours therein to the enemy, in lesse then three whole dayes siege, before any outwork taken, or the least battery or assault agains the city or castle walls; to the ineffable losse, danger and prejudice of the whole kingdom. Set forth at the earnest desire of many persons of quality, to vindicate the verity of this much disguised action, prosecution, tryall, sentence, and some subsequent proceedings; ... / By William Prynne and Clement Walker, Esqs;	Prynne, William, 1600-1669.; Walker, Clement, 1595-1651.	1644 (1644)	Wing P4111; Thomason E255_1; ESTC R210055	195,553	170

in evidence even in capitall crime That the high Court of Parliament hath upon just occasion allowed of Paper-depositions in such cases That in all Courts Martiall both in England and elsewhere they have been constantly allowed and particularly in the late famous case of Tomkins Chaloner and other London Conspirators whose Examinations were read and given in as evidence one against the other upon which they were condemned and executed Besides there was both very great reason and necessity that such Depositions should be admitted in this case and in all Martiall proceedings of this nature because divers of our materiall Witnesses being Officers or Souldiers now in actuall service and dispersed upon severall occasions into divers Brigades and parts of the Kingdome remote from Saint Albans could not without great danger dis-service to the State inconvenience to themselves and excessive costs to us who had lost our estates and prosecuted onely for the publike on our owne expences be drawn together personally to attend this Triall which had been so frequently adjourned not onely from week to week but place to place That we severall times petitioned both the Commons House and his Excellencie that the Councell appointed for this Tryall might be held at a certaine day and place within London or Westminster before our Witnesses were dispersed and where we could with lesse trouble and expence to our selves and them have produced all or most of them viva voce but yet we could not through the Defendants procurement as we conceive obtaine this reasonable request Therefore himselfe being both the cause and president of these our Depositions and of removing the Triall to this place for our greater incommodation and expence ought not to take advantage of his owne wrong against a Maxime of Law the constant practice of the Court Martiall and his owne leading example which we did but imitate Which point the Councell causing us to withdraw did upon solemne debate among themselves clearly over-rule against the Defendant upon the premised Reasons To the second Exception concerning Sir William Waller Mr Prynne most solemnly protested for himselfe to the Councell that it was a most false and malitious slander That neither Sir William Waller nor his Ladie nor any other in their behalfe did ever directly or indirectly excite advise or encourage him in this prosecution that the Delinquent himself was the onely man who unadvisedly put himselfe upon this Triall as appeares most evidently to all the World by the close of his printed Relation in the Parliament House where Pag. 13. he desires the House of Commons that they would be pleased to let the truth of what he had then affirmed to them concerning the surrender of Bristol be examined at a Councell of Warre that so he might be cleared or condemned as they should finde the truth of falshood of what he had delivered By his and his Officers Petition to his Excellencie and his Excellencies Proclamation upon their Petition posted up at Westminster and the Exchange wherein he summoned Mr Walker and Mr Prynne by name in the most publike manner that might be and after that by private Notes and sundry other publike Adjournments to be his Prosecutors Which thanklesse office he was not altogether unwilling to undertake when thus openly engaged by the Defendant not out of any private malice to the Delinquent whom he formerly honoured and to whom he never bore any particular spleen having never received the least injury from him much lesse out of any degenerous respects instrumentally to wrecke the private malice or revenge of any others upon him it being below his spirit and most averse to this genius his conscience to be subservient or instrumentall to any mans malice or revenge whatsoever but meerly out of a reall desire to doe his Countrey faithfull service and vindicate the truth of this unworthy state-ruining Action under which the whole Kingdome now lay languishing from those false disguises which the Defendant in sundry printed Papers had obtruded on the World to salve his owne irreparable dishonour The prosecution therefore proceeding thus meerly from himselfe as all the premises infallibly demonstrate he had laid a most scandalous imputation upon Sir William Waller a noble well deserving Gentleman then absent and on himself in the forementioned exception for which he demanded justice against him from that honourable Councell unlesse he could make good this calumny for which he was most certaine the Defendant had not the least shadow of proofe the testimony of Dowet the ground of this aspersion referring not to him but onely to Mr Walkers Relation published long before any Impeachment of or prosecution against the Defendant which charge Mr Walker himselfe there present was ready to answer as to that particular Hereupon Mr Walker informed the Councell that he acknowledged in the Epistle to his Answer to the Defendants Relation that it was but a collection out of the severall reports of divers Gentlemen and Commanders in that service before and whom Bristoll was besieged which when he had drawn up having occasion to goe to Southampton he left it in the hand of a friend desiring him to show it to whomsoever he should think fit and especially to those Gentlemen out of whose mouths he compiled it to see if he had hit their sense aright and that this party as hee was since informed shewed it to Sir William Waller He said further that the written copy was shewed to the Defendant himselfe and therefore he doth not wonder if it were shewed to Sir William Waller and that Sir Williams objected speaking to his Officers onely to declare what they knew touching that businesse with reference simply to his Answer could not be intended either malice or combination or prosecution of this impeachment not then so much as though of nor any prejudice to the truth since no man can know a falshood because it is a non-entity and can be no object of mans knowledge That therefore this could be no just exception to Sir William as a Commissioner the rather because Colonell Carre a man indifferent was joyned with him much lesse any legall exception to any Officers or Souldiers testimony then under his command who did but testifie what they knew for truth Besides Mr Prynne added that Colonell Fiennes himselfe had examined divers of Sir William Wallers Officers by commission before we examined any of them and some of those whom we examined and why we should be deprived of the benefit of their Examinations for the Kingdomes advantage when himselfe had examined them onely for his private defence there could be neither reason nor equity alledged it being a meere artifice to deprive us of our most materiall Witnesses and to suffocate the truth To the third of his wanting notice to joine in commission and crosse examine our Witnesses Mr Prynne answered First that himselfe had begun the President in taking forth severall commissions to Sir William Wallers and the Earle of Manchesters Army

body of the Kingdome which had ordered a faire and equall Triall which they humbly conceived to be a free and open one agreeable to the proceedings of Parliament and all other Courts of Iustice in the Realme which stand open to all and from whence no Auditors are or ought to be excluded Colonell Fiennes opposing this motion in a sycophanticall way alleadged that we suspected the integrity of that Court as appeared by this request for an open triall and our endeavours to appeale therefrom by severall Petitions to the Parliament for a triall before the House in London or Westminster whereas hee had cast himselfe freely and cleerely upon their Iustice which hee no wayes suspected to whom the cognizance of such Causes properly belonged and therefore desired the hearing might be private according to the proceedings used in such Courts Upon which Dr Dorisla Iudge Advocate intervening told the Prosecutors and Councell that it was against the stile and course of a Court Martiall to be publike and open therefore it might not be admitted upon any tearms To which Mr Prynne replied that he no wayes distrusted the Iustice or Integrity of this Honourable Councell for then he would not have appeared before them at this place and time to crave Iustice from them That he was a Common Lawyer and by his Profession his late Protestation and solemn Covenant bound to maintain the fundamentall Laws of the Kingdom and Liberty of the Subject That the Members of this Honourable Councel as well as himself had not only taken the like solemn Protestation and Covenant but also put themselves in Arms to maintain and defend the said Laws and Liberties of the Subject to the uttermost That by the Lawes and Statutes of the Realme all Courts of Iustice ever have beene are and ought to be held openly and publikely not close like a Cabinet Councell witnesse all Courts of Iustice at Westminster and elsewhere yea all our Assizes Sessions wherein men though indited but for a private Fellony Murder or Trespasse which nothing neere concerns the Republike so highly as this dishonourable surrender of Bristoll have alwayes open trialls and if such petty Causes then much more this of most Generall Concernment to the whole Realme recommended to a faire Triall by the Parliament it selfe ought to be as open and publike as possible to satisfie both the Parliament and People That not only in Courts of Common Law but in the Admiralty it selfe and all other Courts proceeding by the rules either of the Civill or Canon Law the proceedings have ever beene publike the Courts open And even in late proceedings by martiall Law before a Councell of war the trials of Delinquents in England have been publike as appears by the trials of Yeomans and Butcher at Bristoll before Colonell Fiennes himself which were publike and by the triall of Mr Tomkins Challoner and others since before a Councell of warre at the Guild hall of London in presence of both Houses of Parliament and the whole City no Commers being thence excluded Wherefore this case being of the same publike nature and as much or more concerning the Kingdome as theirs ought to receive as publike a triall as theirs did To which Dorisla answered that himselfe protested against the open triall of Tomkins and Challoner as a breach upon the Councel of wars priviledges but was over-ruled therein to give the Parliament and City content adding that all Councels of warre in forraigne parts were ever private and ours now used not to be guided by Common or statute Laws or the course of other Courts but by their own Orders and this being a Councell it was against the nature and constitution of it to be publike To which Mr Prynne rejoyned First that there was as great cause to give the Parliament City and Kingdome satisfaction in this as in the other forenamed case it being of as publike concernment Next that we of England are not to be guided by forraigne Lawes or Presidents but by our own domestick That the Common Law the Statutes of the Realme and constant practise of all our other Courts of Iustice ought to regulate the proceedings of the Councell of war not the Councell of wars to repeale and controule them especially in an Army which hath taken up armes and are waged by the Parliament of purpose to defend the Fundamentall Lawes and Subjects Liberties not to thwart them That it was both against the Laws and Subjects Liberty as he humbly conceived to deny any Prosecutor or Subject an open Triall and thus to chamber up or restraine Iustice intra Privatos Parietes in any much more in this publike cause That the Judge Advocate could produce no one President for such a close triall within our Realme in any former age and therefore hee should make no such new President now That all cases of this nature touching the cowardly surrendring of Townes and Castles were in former times tried only in full Parliament as appeares by the cases of Gomines Weston the Bishop of Norwich and others and that upon very good reason since cases which concern all are fittest to be determined in that Highest Court which represents all the Realm That this Councell of Warre had a double capacity and consideration First as a Councell of Warre only to deliberate of things necessary for the regulating and managing of Military affairs and in this regard it ought to be secret in all such debates and not communicate their councels but in this capacity wee were not now before it Secondly as a Court of Iustice to proceed criminally against Malefactours and in this respect it ought as hee beleeved to be publike and open to all commers To put this out of doubt he would instance only in one example The high Court of Parliament is both the supreamest great generall Councell for peace and warre and the highest Court of Iustice in the Realme as it is a Councell to consult debate or deliberate of the Military or Civill Affaires of the Kingdom so it is alwayes private none but the Members and Officers of either House being admitted to their consultations or debates But as it is a Court of Justice to punish Malefactors so the Proceedings of both or either House are alwayes open and publike as appeares by the Late Tryall of the Earle of Strafford in Westminister Hall and infinite other Presidents of Antient and present times If then this supreamest Councell of all others as it is a Court of Iustice stands ever open unto all and the proceedings of it be alwayes publike without any infringment of its Priviledges as a supream Councell of Warre and Peace then certainely this Honourable Councell of Warre inferiour to it both in Power and Iurisdiction as it is now a Court of Iustice may and ought to hold their Proceedings and Sessions Publikly in this common cause without any violation of its Priviledges as a Councell What therefore the Peeres in Parliament once answered the Prelates in

too without and against the consent of the Parliament or his Excellency their Generall into the hands and power of Prince Rupert and other common enemies of the Kingdome and Parliament to the extraordinary great danger dishonour losse and prejudice of the whole Kingdome and Parliament the evill example of other Governours and Townes the losse of most of the Westerne parts of England and great encouraging inriching and strengthening of the said enemies both by Land and Sea and that upon very dishonourable Articles to which hee was no wayes necessitated and had no care to see them punctually performed by the enemy when complaint thereof was made to him for reliefe to the great prejudice and impoverishing of the Inhabitants and Garrison souldiers there 5. Item That the said Colonell without the privity or consent of any generall Councell of War did of his own head send out for a parley with the enemy when divers Officers and souldiers advised and perswaded the contrary and would have repulsed the enemies and defended the said City and Castle to the utmost That the surrendering up of the same was principally occasioned by the earnest perswasion advice and cowardice of the said Governour contray to his trust and duty to keepe the same And that the said Governour when as the Councell of warre unanimously voted upon the parley that it was neither safe nor honourable for them to depart the Towne unlesse they might march thence with halfe their Armes at least and with their Colours thereupon after some private conference with Col. Gerrard one of the enemies Commissioners in the Garden without the privity and contrary to the Vote of the said Councell did make and insert the last Article that they should leave all their Canon and Ammunition with their Armes and colours behinde them and returning to them out of the Garden told them plainly that they must now deliver up all to the enemy but what was expressed in the Articles he then produced and leave their Armes and Colours behind them to the said Councells and souldiers great discontent And whereas by those very Articles the said Town and Castle were not to be delivered up till nine of the clocke the next morning nor the enemies to enter them till the souldiers and other Gentlemen were marched out the said Governour was so over-hasty to surrender up the same that hee delivered them up to the enemy above one houre or more before the houre agreed on and suffered the enemies to enter and possesse them before the souldiers were marched out whereby many of the souldiers were pillaged in the castle and towne and divers of the Inhabitants best affected to the Parliament plundered before the houre of surrender came to their great losse and undoing 6. Item That he the said Colonell during the three dayes siege of the said City and castle did not give any such incouragement to the souldiers and Officers who bravely defended the same and slew neere one thousand of the enemies best men by his own printed Relation with the losse onely of eight persons which much discouraged them as his duty and place required and they expected And that when a small number of the enemies not two hundered who gave themselves for lost had entred the Line of Communication at the weakest place which was worst guarded on Wednesday morning the 26. of Iuly last being bravely repulsed by the Souldiers with great losse in all places else he the said Colonell for two houres space or more during which time no more Enemies entred or approached the said Breach both neglected and refused to command or incourage the Officers and Souldiers who offered to beate them out in due time as he was advised and pressed to do by Captain Bagnall Livetenant Colonell Dauison and divers others who would have undertaken that service and instead of incountering the said Enemies against whom the very women offered to go on with their children to dead the Canon if the Souldiers were afraid rather then the City and Castle should be yeelded called off the Souldiers and Officers from the Line and Out-works that the Enemies might the better enter them without resistance upon pain of death much against their wills who should and would have hindered and repulsed the Enemies and discouraged and hindered such as were forwards to have cut them off sounding a parley when the Enemies were so beaten that they threw down their Armes and cried for quarter insomuch that divers of the Souldiers and Inhabitants cryed out they were betrayed and some of the Souldiers brake their Armes in discontent swearing they would serve the Parliament no more 7. Item That the said Governour notwithstanding his promises to defend the said City and Castle and dispute it to the last had yet a reall intention to deliver up the same to the Enemies before ever they were besieged by them and no thought at all to defend them to the uttermost or till they might be relieved by his Excellency as appeares by the premised Articles by the said Governours refusall to send the Prisoners formerly taken out of the said Castle before the Enemy approached when moved to it by Sir William Waller saying to him and others that he would detain those prisoners still there to make his owne Conditions and Composition the better with the Enemies if they came before it by his commanding Master Hassard the Master Gunner there to lay aside a Reserve of Thirty Barrells of Powder with Match and Bullet answerable to which when he was reduced he would then Treat with the Enemy which he did long before he was reduced to this large Reserve by other speeches to the like effect And by his moving Sir William Waller to depart from Bristoll before it was besieged who otherwise would have adventured his life in its defence 8. Item That he the said Governour when he surrendred the said Castle to the Enemy had at least sixty Barrells of Power therein besides what was in the City and Forts being above twenty more then were in Gloucester when it was first besieged Five hundred Canon shot fifty great Granadoes fourteen hundred weight of Match or more great store of Musket Bullets and Tin to make more A Match-make a Bullet-maker with materialls to make Match and Bullets and all manner of provisions and Victuals sufficient to maintain one Thousand men for three or four moneths space at least Eleven Canons therein Mounted besides 44. Canons mounted in the City and Forts All which were surrendred to the Eenmy before any battery or assault made against the said Castle though he had men more then enough by his own Relation to defend it contray to his promise made to divers Inhabitants of the said City best affected to the Parliament to defend the same to the uttermost and to dispute every foot thereof with the Enemy and to keep it or to lay his bones therein who thereupon sent their Estates with provisions for them and their

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 Oath 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 and 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 grand importance of the place for the Kingdomes safety For Presidents adjudged in point I could produce many out of forraign 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 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 his 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 onely 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 onely 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 onely 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 onely five of the garison left to defend the Castle when as 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 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

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 Nobles 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 onely 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 onely 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 onely 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 enemy 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 onely 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 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 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