done any dishonourable action, or that he hath | said or done any thing amiss, or unduly, or untruly, in the justification which he made of the Surrender of the City and Castle of Bristol in the honourable house of commons, or any other ways. And the rest of the Article he denieth in the whole, and in every part thereof; and doth affirm, and doubteth not but to make appear to any that are versed in military affairs, that, without detracting any thing from the worthy Governor, who did as much as the enemy put him to, and as honourably as any man could do, that he had a harder task to hold Bristol in the condition it was in, and in the manner that it was assaulted 4days, than col. Massy had to defend Gloucester 4 weeks; and that he was so far from declaring that Gloucester would not hold out 3 days, that he often declared, that if they had ammunition enough, they might do well enough, and hold out till relief came to them; but oft he feared they might be strained therein, as having good cause to know it: for had he not supplied them with ten barrels of powder; and had they not had two or three more out of Berkley Castle, which he sent thither but a week or two before, the Town had been lost for want of powder. And in this respect, he desired those whom it concerned to relieve them, not to be too confident of their holding out and to hasten relief unto them; so far was he from desiring to hinder relief to be sent unto them, that it might be lost as Bristol was.

10. To the tenth He answereth, That it is an Article without a Charge, an Argument witheut a proof; for that the testimony of the enemy can make nothing against him, it being their parts to dishonour and disgrace their enemies as much as they can; but the testimony of an enemy, though it be of no validity against him, yet it is strong for him; and as he doth deny, that those that are soldiers on the enemies side have any such sense of the action, so he doth affirm that they had, and have expressed the contrary.

The first Day's Hearing upon the three first ARTICLES.

The Articles and this Answer to them being read, the Prosecutors proceeded presently to the Proof of their Articles: And whereas they conceived the Defendant would have granted the three first Articles, being but introductive to the Impeachment, yet he put the Prosecutors to their Proofs; 1. That col. Essex was ever Governor of Bristol. 2. That he ever removed or sent col. Essex thence. 3. That himself was ever Governor of Bristol.

And then bid Mr. Prynn prove these particulars ere he proceeded farther.

Mr. Prynn thereupon replied, that he much admired how a man of his birth and breeding should so much forget himself, as to deny that in private before the Council, which himself bad not only confessed, but professed before the House of Commons, (the representative body of the realm) the City of Bristol, and pub

lished in print to all the world in public: But since he denied these Particulars, he would easily make them good against him.

(1.) For the first it is clear, that col. Essex was both acknowledged and stiled Governor of Bristol, by the Parliament, his Excellency, the Committees of Somersetshire, Gloucestershire, Wiltshire, the citizens and garrison of Bristol, and all the gentlemen of those parts, and by col. Fiennes himself at his first coming to Bristol, who gave him the title of Governor.

(2.) That he made out his warrants, commands, and ordered all things for the City's defence and fortification, as Governor, having the command in chief of the City, Castle, and Forces there, as absolutely as any Governor whatsoever.

(3.) That in the Book, intitled, A full De'claration of Colonel Fiennes's March to, and Proceedings at Bristol,' compiled and published by himself, or his major Langrish, with his approbation, p. 3, 4, 10, 12 to 16, col. Essex is both acknowledged and stiled Governor of Bristol, and that by himself, in his own printed Letter to his father to justify his reinoval; and the Depositions which he took and published against him, attest him to be the Governor. Therefore he must even blush to deny all these pregnant evidences, and to put us thus to prove that only now, which he ever confessed before.

Whereupon col. Fiennes said, I confess he was a Governor de facto, but not de jure.

To which Mr. Prynn replied; 1. That he was sent thither, and placed there, by his Excellency's special command, and the Parliament's approbation; therefore he was as much Governor de jure as himself or any other. 2. That he was obeyed as a rightful Governor till he sent him thence, and so esteemed by the Parliament, his Excellency, the Garrison, City, and Committee. 3. If he was not Governor de jure, then all his commands and acts there done, during his government, were injurious, unwarrantable, which he presumed the Defendant durst not affirm.

Then he replied, That col. Essex had no Commission, and therefore was no rightful Governor.

To which Mr. Prynn rejoined, 1. That for ought he knew he had a Commission. 2. That his Excellency's sending of him thither, to take in command the city, and his confirming him there as Governor, with the Parliament's consent, was a Commission sufficient to make him Governor de jure. 3. That if his Excellency commanded an officer by word of mouth alone, without a Commission under seal, to lead any brigade out upon service, or to take in any Town or Castle, (as he had lately commanded major Skippon to take in and fortify NewportPannel) this was warrant enough to make him Governor both of the brigade, town and fort; and if he should betray, or basely deliver up that brigade, town, or fort, when taken in, he should be condemned for it by martial law as a traitor, and the want of a Commission would

be no excuse to acquit him from being a Governor, and betraying his trust.

Secondly, That he removed and sent away 'col. Essex from Bristol.'

(1.) Mr. Prynn proved it, first by his own printed Letter, and the Depositions published by his direction, in A full Relation,' &c. p. 4, 6, 10, 11, 12, where he useth these expressions: Col. Fiennes,' (writes his major Langrish) who communicated unto me an order that he had received from his Excellency, whereby he was enjoined to send col. Essex to Windsor, or the Parliament, in case he 'saw cause for it; and having given me Reason to see and know that there was cause so to 'do, he asked me, whether I would assist him in the execution of it or no? The which, seeing cause for, I promised to do. But it will be necessary here to annex the Reasons ⚫ which caused col. Fiennes to put in execution the Order given him by my Lord General, to 'send up col. Essex from Bristol; not as an 'accusation against col. Essex in this place, let that be followed by those to whom it ap'pertains) but by way of vindication of col. Fiennes, that he had done nothing herein, but what the trust reposed in him, and the safety of that important place did require him; and that the rather, because it begins so far to reflect upon col. Fiennes, as if he had done him injury, and there had been no Plot at all, but a Plot to put himself in the 'Governor's place. The Malignants in the 'town taking up this, and spreading it, and adding strength to it by col. Essex's own speeches and carriages, it will be a great injustice to him, who hath done his duty, and therein no inconsiderable services, to be requited with calumny, &c.' Besides, col. Fieanes writes thus in a printed Letter to his father: My lord, &c. I have sent a Letter long enough, and full enough of particulars, concerning col. Essex, and which I think ' were sufficient to satisfy any man, that it was necessary he should be removed from hence,

6

To the Third, That himself was never Governor of Bristol,' Mr. Prynn answered, That it seemed he had carried himself so dishonourably in that government, that he was now ashamed or afraid to confess himself Governor, for fear he should suffer for it, else he could not have the impudence to deny it. But since he thus denied himself Governor, he would quickly prove him so; 1. By his own Warrants, during his government, wherein be stiled himself Governor of Bristol. 2. By bis acceptance of that title from his officers, soldiers, the committee, and all others. 3. By the Parliament's, his Excellency's, and own father's intitling of him Governor of Bristol, in their letters and directions to him. 4. By his exercising all the authority, and receiving the pay of a Governor. 5. By the full Declaration concerning his March to Bristol, set forth by his major Langrish: who, in his Letter from Bristol, March 6, 1643, p. 3, 4, 6, stiles col. Fiennes our Governor,' and now Go'vernor of Bristol,' three several times, long before he had a commission to be Governor there. 6. By his own draught of an Ordinance presented to the House of Commons by the lord Say, for the settling of a sufficient Ġarri son at Bristol; printed by himself, in his "Relation made to the House of Commons concerning the Surrender of the City of Bristol," p. 17 to 22, in which we find this gentleman no less than eight several times expressly stiled, Colonel Fienues Governor of Bristol.' And are you not ashamed so confidently to deny that here in the presence of this honourable council, which yourself have so lately published to all the world? Oportet mendacem esse me'morem.' 7. In the very Articles of the Surrender of the City and Castle of Bristol to the enemy he intitled himself Governor,' witness the Title of them: Articles agreed on at the city of Bristol, between col. Nathanael Fiennes Governor of the said city on the one party, and col. Charles Gerard and captain Win. Teringham, for and on the behalf of

6

'Governor of a town hath not been called to 'an account, in point of his fidelity, upon 'weaker grounds than those which I have seut.

(2.) By his own express Confession, in the latter end of his Answer to the second Article, though he denies it in the beginning, that he did it not upon any Pretended Cause,

1643.' And Article 1. That the Governor col. Nathanael Fiennes,' &c. Certainly if he were not Governor before to keep, yet these very Articles prove he was then Governor to surrender it. And now, sir, take your choice; If you were not Governor, then you had no power to treat or surrender the City or Castle, and so must be condemned (by your own confession) as a betrayer of thein: If you were Governor of them, then you shew yourself most unworthy your birth and breeding in denying it now; especially since you have given an Account in a printed Relation, of your Proceed. ings and Surrender of Bristol, which is in law a confession of this trust. To conclude: His Excellency's own Proclamation, posted up at Westminster by the Defendant's procurement, and summoning us to give information against him, doth no less than three several times together stile him, col. Fiennes, late Governor of Bristol;' and therefore eternally concludes him to deny it.

ed or included within his Commission, being built for the most part since the Commission was granted; yet no man will doubt but if col. Fiennes, or any other officer, had treacherously or cowardly delivered up any of these

To the first whereof Mr. Prynn replied, 1. That he had the chief command of the Castle, and none else. 2. That he placed his own brother, col. John Fiennes, as commander in chief, and all other officers under him, in the castle. 3. That he only gave order for the fortifying, victualling, and garrisoning of it. 4. That he laid up the stores and magazines of the City there, disposed of all the lodgings in it, intending to make it the place of his last retreat: therefore certainly he was Governor of it. 5. That though Bristol Castle and the City were divided heretofore, the Castle lying in Gloucestershire, and being no part of the City, yet since queen Anne's entertainment at Bristol, king James at her request gave and united the Castle to the City, making it part thereof, and so it continueth to this day: Wherefore since he confesseth he was Governor of the City, he must necessarily be Governor of the Castle too, it being no parcel of the City, and having no other Governor that had charge of it in chief but himself alone, and his brother under him.

To this the Defendant, in the Sixth place, replied, That he had no Charge of it as a Fort, no more of any one house in the City.

To which Mr. Prynn rejoined, 1. That the Castle was never reputed a house, but always a fort, a castle, and a very strong one too; therefore he must needs have the government of it as a fort, not as a house. 2. Himself esteemed it the strongest fort in and about the city, bestowed much cost in fortifying it, laid up his magazines in it, kept a special garrison there, made it the place of his last retreat, promised to hold it out till the last, if the city were taken, and to lay his own bones there rather than yield it up; therefore certainly he took charge of it as a fort, and must answer for surrendering it as a fort.

Upon this col. Fiennes replied, That the Castle was not mentioned in his Commission, and so he was not chargeable with it as a 'Fort.'

Which Mr. Prynn presently laying hold of, rejoined, 1. My lords, We have now a clear confession that col. Fiennes had a Commission to be Governor of Bristol, the fifth thing he even now denied. 2. Though the Castle be not particularly named as a fort in his Commission, yet this will not help him, for it is therein included as part of Bristol. This I shall undeniably evidence by a case or two: col. Fiennes, by virtue of his Commission, hath built several Forts and Sconces about Bristol, without, not within the City limits, though adjoining to it, as we have done the like about London; these Forts are properly no part of the City, as the Castle is, nor are they mention

VOL. IV.

City, it had been treason in him, and he should have suffered for it: So had he in like manner yielded up or betrayed any one house in the City or Castle, were it fortified or not fortified, to the loss or hazard of the City, it had been treason by the laws of war; many cities and castles having been lost, by the loss or yielding of one house or postern; much more then must he suffer for surrendering such a considerable fort as Bristol Castle to the enemy, without any battery, assault, or necessity, though he found it not specified in his Commission, which extends to the whole City, and so to every house, fort, and parcel of it, though not particularly mentioned in it.

The Colonel then said, 'That he had no Commission to be Governor of Bristol, and by consequence was not Governor of it,'

To which Mr. Prynn replied: 1. That since he undertook the charge of the Town and Castle, as Governor, it mattered not much whether he had a Commission or not; for he writ, and carried himself as Governor, even from the sending away of col. Essex, till the surrender of the Town and Castle, which he surrendered as Governor. 2. That himself had formerly unawares confessed, That he had a Commission to be Governor, and that he was stiled Governor by Langrish, and others, even in print, before he had his Commission to the Go

vernor.

Thirdly, he should prove hereafter, That himself sent one captain Bagnall twice up to London to procure not only a Commission, but 'an independent Commission,' from his Excellency, that so he and his garrison might not be subject to sir Wm. Waller's commands, (which capt. Bagnall afterwards attested upon oath, and that he spent 167. in these two journies, to obtain this Commission, which the Colonel out of his liberality never yet paid him) and the Colonel himself confessed afterwards to the council upon Bagnall's testimony, he sent for and received an independent Cominission; that so he and his garrison-soldiers might not be liable to sir Wm. Waller's commands, as they formerly were.

The Colonel hereupon told the Council, "That he sent for this Commission, not to guard the City against the enemy, as Governor of it, but only to keep his soldiers in order, whe when they were commanded on any service, grew mutinous, and would still be calling on him to see his Commission: for which he gave an instance in col. Popham's regiment; who disobeyed him when they returned from the taking of Sherborne: And this made him to send for a Commission, only to order his soldiers, and keep them in obedience; but he never had nor sent for any Commission to keep the Town or Castle,”

P

To which Mr. Prynn replied, "That this was the most absurd, irrational, if not unsoldierly distinction, that ever was heard of in the world, and that he might be ashamed to propound it before soldiers, in such an honourable Council of War as this: for what need was there either of a garrison or Governor of Bristol, or of such a Commission to keep his soldiers there in obedience and order, but only to preserve the City? This was the only end why he and his garrison were there placed, maintained by the Parliament and his Excellency to keep the City, which else would have as well or better kept itself without them. 2. That he was confident his Excellency never granted any such commission to any Governor (nor any other prince or general in the world) only to keep his garrison in order, but not to defend the garrisoned place, whereof he was Governor: such an absurd Commission was never yet heard of, nor such a nonsense distinction made by any soldier. And thereupon he desired the Commission might be produced, to the end it might appear whether it warranted this distinction, That it was only to discipline his soldiers, but not to hold the Town against the enemy. 3. That their lordships now saw the true reason why col. Fiennes so soon delivered up Bristol to the enemy; he pleads he had (or would have) no Commission to keep it, therefore it was he thus surrendered it up to the enemies almost as soon as they came before it who doubtless would keep it better, defend it longer than be, though they wanted a Commission for it. 4. That this pretended disobedience of col. Popham's regiment was long after his Commission received, and that upon this occasion: col. Fiennes, and his major Langrish, would have taken from col. Popham's regiment that little plunder they had gained at Sherborne, with the hazard of their lives, at the country's charge, without any direction from Fiennes, who sent them not on that service; which injurious, avaricious act of his they justly opposed by standing on their guard, and so kept that booty be would have carried from them into Bristol castle. This occasion then being subsequent to his Commission, could not be the ground of its procuring, but rather that which himself unawares confessed; his desire of independency and exemption from sir William Waller's commands.

The Colonel then insisted: First, That he received his Commission only upon this condition, and with this intention, to keep his soldiers in order, but not to make good the

'Town and Castle: therefore he could be no further chargeable by it than as he received it.'

To which Mr. Prynn replied: (1.) That every Governor must receive his Commission at his peril, as it is granted and intended by him that granted it, (as tenants do their leases, and donees in tail their lands) and hath no power to annex any conditions thereunto: his Commission then being absolute, to keep the town for the Parliament, that being the sole use and

end thereof, bis conditional accepting of it being repugnant to it was void and idle.

(2.) That the common and martial law of the realm annex this condition to every Governor and officer of trust, That he ought to discharge his trust and government, and keep that safe which is committed to his custody to his utmost power, though it be not expressed in his Commission; and therefore this pretended conditional acceptance, directly against his trust and government, was most ridiculous.

Secondly, he alledged, That he never sought after the governorship of Bristol, but really desired not to accept it, and to be acquitted from it: to which end he produced and read divers Letters of his own to the lord Say his father, and one or two to his Excellency, which took up near two hours time in reading. In the reading of these Letters, the Colonel casually desired the council to observe, that many of them were written before he had his Commission for Bristol, which was not till the 1st of May 1643.

This Mr. Prynn taking present hold of, desired their lordships in the first place, to observe his voluntary confession of that Cominission which at first he so obstinately denied.

To these Letters read, Mr. Prynn gave these short Answers:

1. That all these letters were either bis own or his father's, and not above two or three of them proved true copies, and that by Mr. Sprig the lord Say's secretary; therefore no Evidence at all to justify or excuse him, himself and his own Letters being no competent wit nesses in his own cause; and his father but testis domesticus at the best, if present.

.

2. That the substance of the chief Letter to his Excellency, was only a modest excuse of his own insufficiency for that Charge; a common compliment in every ingenuous man's mouth, that is preferred to any great place of trust; who in words at least pretends insufficiency for that place which he perchance de sires: just like our bishops usual Answer, nolo, nolo, to vis episcopari? now used as a forma lity, for fashion sake only, even when they come to be consecrated; when in truth they make all the friends and means they can to compass that Bishopric, which (for fashion sake, out of a dissembling modesty) they pretend, and twice together answer solemnly (when demanded openly before the Congregation) that they desire by no means to accept of. Therefore this letter of his can be no proof, that he was unwilling to undertake this government, since his subsequent acceptance and actions disprove this pretended refusal.

3. He observed, that in one of his letters dated the 4th April, he writ earnestly to his father, to procure and send him his Commission: Therefore he was so far from refusing, that he sought the government, and sent captain Bagnall twice to his Excellency to procure

* Littleton, sect. 378, 379. See Coke's Institutes on it, fol. 232, 233, 234.

his Commission: as was after attested upon oath.

4. That by divers of his Letters then read, it clearly appeared, himself was the chief informer against col. Essex, and the chief actor in his removal, to intrude himself into his place; for that we had now his own hand against his words and answer..

5. That the scope of all his Letters was only to complain and cry out to the parliament for more monies from London, or to get more authority to raise monies in the country, to pay the garrison, without which monies, he writ, he could not long hold the town; but there is not one clause in all the letters, that he wanted arms, ammunition, powder, men, provision, or that the town or castle was not tenable. If then he complained only of default of monies, with which if he were furnished, he made no doubt of keeping the town; and it is clear he lost not the town for want of money, (for he hath not hitherto either in his printed relation, letters, or answer, affirmed, that he surrendered the City or Castle for want of money) then by his own confession, he must surrender them either out of treachery or cowardice, they being tenable, and furnished with all other necessaries for a siege but money.

6. He observed that col. Fiennes did never refuse the place of governor, as he should have done had he been unwilling or unable to discharge it; that his importunity to quit it, in case he could get no monies, was with no intent to leave the place, but only to hasten the supply of monies; it being the argument and rhetoric of most other commanders in their letters to the parliament, to cry out for monies, else all would soon be lost, and they must disband. 7. That he took on him the power and place of a governor long before he had a Commission; that he drew and sent up ordinances to pass the house to enlarge his power and territories for 20 miles space round Bristol, and to settle himself in an absolute government there. That he both earnestly writ and sent up twice to his Excellency for a Commission by a special agent, that so he might be independent; that he accepted of the Commission when it came; yet never acquainted the city or committee of parliament with it, doing all things in a high imperious manner for the most part, of his own head, without their privity or advice; that he held his Commission without surrendering it till be surrendered the Town and Castle to the enemy, so unwilling was he to depart with his governorship. From all which he concluded, it was apparent he was so far from refusing, that he did ambitiously affect, if not injuriously usurp, this government, for his own private lucre, to the prejudice of the former governor, and irreparable damage of the whole realm.

In fine, col. Fiennes desired Mr. Prynn to prove, First, That he ever undertook to his excellency or the parliament to make good the City or Castle, and not to surrender the same to the enemy without their consents.

To which Mr. Prynn answered, That the very law itself and common reason informs us, that every governor of a Town, or Fort, is to make them good, and not to surrender them to the enemy without the consent of those who committed their custody to them, else every governor might betray his trust at pleasure. This therefore being a condition in law annexed to all governors and officers, and he confessing himself to be governor, (and that by a commission which no doubt enjoined him to make good and keep the place in manner aforesaid) needs no other proof at all; the law resolves it, and therefore none must doubt or contradict it.

With this debate the Proof of the first Article was concluded.

Article 2. The second Article was proved by his own printed Proceedings mentioned in A 'full Declaration,' &c. p. 5, 6, 7, 8, 15, by his house of commons, p. 15. Answer to the Article, and Relation to the And Mr. Prynn informing the Council, that he did not charge it criminally, being a lawful action done by direction of parliament, but only by way of introduction and aggravation of the subsequent Articles, and crime in surrendering the Town so treacherously and cowardly, after this his sentence against, and execution of those Conspirators, it was passed over without further pressing.

Article 3. The third Article being likewise introductive, to aggravate his Offence in the 4th 5th 6th and 8th Articles, was briefly proved by his own printed Relation, p. 4, 5, 6, 23, by his printed Letter to his Excellency, confessed in part in his Answer, and to be further proved in the Proof of the ensuing Articles, was thereupon briefly run over: and so the first day's Hearing ended.

The Second Day's Hearing, together with the

3rd 4th 5th 6th and 7th, spent wholly in the Proof and Defence of the 4th Article, to which most of the others in the Reply and Rejoinder were reduced.

The three first introductive Articles being run over the 1st day, the Prosecutors, the next session, proceeded to the 4th, where the crimi nal and capital charge of the Impeachment began; The Defendant first demurred to the Depositions taken upon oath against him, both be fore the Judge-Advocate himself, and by sir William Waller and col. Carre, by commis sion from his Excellency; alledging,

1. That no Paper-Deposition ought to be allowed by the law, in cases of life and death, but the Witnesses ought to be all present and testify viva voce, else the testimony ought not to be received.

2. That sir William Waller was his enemy, and by confederacy with the prosecutors, had been the chiefest instrument of prosecuting this impeachment against him: to which end he produced one major Dowet a Frenchman, whom sir William Waller had displaced, and so