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afternoon, the signal of battle being out, the Admiral was forced to send his boat on board of Kirkby, and command his making more sail, and get a-breast of the enemy's van, for he was resolved to fight them. About four the fight began; but the said Kirkby did not fire above three broadsides, then luffed up out of the line, and out of gun-shot, leaving the Admiral engaged with two French ships till dark, and the said Kirkby receiving no damage; that his behaviour caused great fear of his desertion. At night, the said Kirkby fell astern, leaving the Admiral to pursue the enemy.

That on the twentieth, at day-light, the Admiral and Ruby were within shot of all the enemy's ships, but Colonel Kirkby was near three or four miles a-stern. The Admiral then made a new line of battle, and took the van himself, and sent to each ship, with a command to the said Kirkby to keep his line and station ; which he promised to do, but did not, keeping two or three miles astern, though the signal for battle was out all night; the French making a running fight, the Admiral and Ruby plied the enemy with their chace guns till night. That the twenty-first day, at light, the Admiral was on the quarter of the second ship of the enemy's rear, and the Ruby on the board side, very near, who plied him warmly, and met the same return, by which he was so much disabled, though the Admiral came in to his assistance, that he was forced to be towed off; and this prevented the Admiral's design of cutting off the enemy's sternmost ship. This action lasted two hours, during which time the said Kirkby lay a broadside of the sternmost ship; as did also the Windsor, John Constable commander. The Admiral then commanded the said Kirkby to ply bis broad-sides on him; but, this having no effect, the second time he commanded the same, but be fired not one gun; nay, his own boatswain and seamen repeated the Admiral's command to him, but were severely used, and threatened that he would run his sword through the boatswain: and, had the said Kirkby done his duty, and Captain Constable his, they must have taken or destroyed the said French 'ships. The Admiral, though he received much damage in his sails, rigging, yards &c. yet continued the race all' night. That the twenty-second in the morning, at day-light, the Greenwich was three leagues a-stern, and the Defiance, Colonel Kirkby, with the rest of the ships, three or four miles, the Falmouth excepted, whose station was in the rear: that the said Captain Samuel Vincent, seeing the behaviour of the said Kirkby and the rest, came up with the Admiral, and sent his Lieutenant on board, desiring leave to assist him, which was accepted: the said Kirkby never coming up, and, by his example, the rest did the same, as if they had a design to sacrifice the Admiral and Falmouth to the enemy, or desert. The enemy were now about a mile and a half a-head, standing in to the shore, with a small breese at west, fetched within Sambey, the Admiral firing at the sternmost till night, and continuing the pursuit; and a Flemish ship that was in Monsieur Du Casse's company, on board of which were all the French and Spanish new governors and other officers, made her escape. That the twenty-third in the morning, at day-light, the enemy bore north-west, distant about four or five miles, the Admiral and Falmouth pursuing ; but the said Colonel Kirkby, with the rest of the ships, being three or four miles a-stern (though there was not a ship, but, before and after the battle, sailed better than the Admiral:) about seven in the evening, it having been some time calm, a gale of wind sprung up; the Admiral and Falmouth were about two miles from the enemy, and at eight the said Kirkby and his separate squadron were fair up with the Admiral, and this day the Admiral sent away the disabled Ruby, George Walton, commander, to Port-Royal, and under his convoy the Anna galley, retaken from the French.

That the twenty-fourth in the morning, about two of the clock, the Admiral came up with the sternmost of the enemy within call, and the Falmouth pretty near; but the said Colonel Kirkby, with the rest of the ships, according to custom, were three or four miles a-stern: the Admiral and Falmouth engaged the said ship, and at three the Admiral was wounded, his right leg being broke, but commanded the fight to be vigorously maintained ; and at daylight the enemy's ship appeared like a wreck, her mizen-mast shot by the board, her main-yard in three or four pieces, her fore-top sail-yard the same, her stays and rigging all shot to pieces. Soon after day, the said Kirkby, with the rest of the ships, being to windward of the said disabled ship, be the said Kirkby, with the rest of his separate squadron, fired about twelve guns at the said ship; and, fearing a smart return from her, he lowered his mizenyard, his top-sails on the caps, set his sprit-sail, sprit-sail top-sail, and fore-top-sail stay-sail, and, having waired his ship, set his sail, and run away before the wind from the poor disabled ship, the rest following his said example; though they had but eight men killed on board them all (except the Admiral.) The other three French men of war were, at this time of action, about four miles distant from their maimed ship; whereupon the enemy, seeing the cowardice of the said Colonel Kirkby, and the rest of the English ships, in a squall bore down upon the Admiral, who lay close by the disabled ship, and, having got in their sprit-sail-yard, gave him all their fire, and, running between him and the disabled ship, remanned her, and took her in. The Admiral's rigging, being very much shattered, was obliged to lie and refit till ten o'clock, and then continued the pursuit, and the rest of the fleet following in the greatest disorder imaginable; the Admiral commanded Captain Fogg to stand a-breast of the enemy's van, and then to attack him, and having then a fine steady gale, the like not happening during the whole engagement; and further ordered that he should send to all the Captains to keep the line of battle, and behave themselves like Englishmen; and this message was sent by Captain Wade, then on board the Bredab. That the said Colonel Kirkby, on the receipt of this message, and seeing the Admiral's resolution to engage, came on board him, who then lay wounded in a cradle ; and, without common respect of enquiring after his

health, he the said Kirkby expressed these words following: viz. • That he wondered that the Admiral should offer to engage the French again, it being not necessary, safe, nor convenient, having had six days trial of their strength;' and then magnified that of the French, and lessened that of the English. But the Admiral, being surprised at his speech, said it was but one man's opinion, and that he would have the rest of the Captains; and accordingly ordered the signal to be made for all the Captains to come on board; and at this time the Admiral, and the rest of the ships, were to windward, and within shot of the enemy, and had the fairest opportunity that in six days presented to chace, engage, and destroy the enemy:

That the said Colonel Kirkby had endeavoured to poison the rest
of the Captains, forming a writing under his own hand, which was
cowardly and erroneous. The substance of which was, not to
engage the enemy any more ; he the said Colonel Kirkby brought
it to the Admiral, who reproved him for it, saying it would be the
ruin of them all. Upon which he the said Colonel Kirkby went
away, but writ another in the following words :
At a Consultation held on Board her Majesty's Ship, Bredah, the

Twenty-fourth of August, 1702, off of Carthagena, on the main
Continent of America.
* IT is the opinion of us whose names are under-written,

1. Of the great want of men in number, quality, and the weakness of those they have.

' 2. The general want of ammunition of most sorts.

'3. Each ship, masts, yards, sails, and rigging, being all, in a great measure, disabled.

• 4. The winds are so small and variable, that the ships cannot be governed by any strength; each ship,

5. Having experienced the enemy in six days battle, following the squadron consisting of five men of war and a fire-ship, under the command of Monsieur Du Casse; their equipage consisting in guns from sixty to eighty, and having a great number of seamen and soldiers on board, for the service of Spain.

• For which reasons above-mentioned, we think it not fit to engage the enemy at this time, but to keep them company this night, and observe their motion; and, if a fair opportunity shall happen of wind and weather, once more to try our strength with them.'

Richard Kirkby, Samuel Vincent,
John Constable, Christopher Fogg,
Cooper Wade, and Thomas Hud-

6

1

son.

That, during the six days engagement, he never encouraged his men; but, by his own example of dodging behind the mizen-mast, and falling down upon the deck on the noise of shot, and denying

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them the provisions of the ship, the said men were under great discouragement. That he amended the master of the ship's journal of the transactions of the fight, according to bis own inclination.

All which being proved, as aforesaid: The said Colonel Richard Kirkby denied the whole, excepting the pretended written consultation; which being shewn to him, be owned his own hand and name too. He brought several of his men to give an account of his behaviour during the fight; but their testimonies were insignificant, and his behaviour to the court and witnesses most unbecoming a gentleman. And being particularly asked by the court, why he did not fire at the enemy's steromost ship, which lay point-blank with him, the twenty-first of August? He replied, because they did not fire at him, for that they had a respect for him; which words upon several occasions, during the trial, he repeated three several times.

Whereupon due consideration of the premises, of great advantages the English had in number, being seven to four, of guns one hundred and twenty-two more than the other; with his acts and behaviour as aforesaid, and more particularly his ill-timed paper or consultation, as afore recited, which obliged the Admiral, for the preservation of her Majesty's fleet, to give over the chace and fight, to the irreparable dishonour of the Queen, her crown and dignity, and come to Port-Royal, Jamaica: for which reasons the court was of opinion, that he fell under the eleventh, twelfth, fourteenth, and twentieth articles of war; and adjudged accordingly, that he should be shot to death. But further decreed, that the execution of Colonel Kirkby be deferred, till her Majesty's pleasure be known therein ; but be continued a close prisoner, till that time.

Captain John Constable, commander of the Windsor, was tried before the aforesaid court, on a complaint exbibited by the JudgeAdvocate on the behalf of the Queen, for breach of orders, neglect of duty, and other ill practices committed during a fight commenced the nineteenth of August, 1702, as aforesaid. (Refer to Colonel Kirkby's trial.)

The witnesses, sworn on the behalf of the Queen, were ;
Captains

2
Lieutenants

7 Masters

5 Other officers

2 The Honourable John Benbow, Esq. Admiral 1

Witnesses 17 Who deposed, that the Captain John Constable never kept bis first nor second line of battle, but acted in all things, as Colonel Kirkby had done. That the Admiral had fired two guns to command him into the second line of battle. That he did set more sail, in order to come into the line and his station ; but, upon Colonel Kirkby's calling to him, to keep his live, he accordingly did. That the Admiral sent bis Lieutenant Landgridge to command him the said Constable to keep his line of battle, within half a cable's length of the ship before him, which was twice verbally delivered. And that he signed the paper, Consultation, as is in Colonel Kirkby's trial aforesaid; tending to the hinderance and disservice of her Majesty, &c. and was drunk during the fight, &c.

All which being fully proved, as aforesaid ; the said Captain John Constable denied his breach of orders, or neglect of duty; but owned the signing the paper or consultation prepared by Colonel Kirkby, and did it at his request, and for that he had received damage in his masts and rigging ; and owned no other article to be true, but that he had signed to: he called several witnesses to his behaviour during the fight, who all declared he kept the quarterdeck during the engagement, and encouraged his men to fight; and that sometimes he gave them drams of rum; and that verbal message, delivered by Lieutenant Landgridge, was delivered him in some heat and passion, and was understood to be, to keep the line within half a cable's length, and to follow Kirkby; which he did. That he so understood it himself, and several of his men: he prayed the mercy of the court, and so concluded, &c.

Where upon due consideration of the premises, the court was of opinion, that the said John Constable, Captain, fell under the 12th, 14th, and 20th articles of war; and adjudged the said Cap. tain John Constable to be immediately cashiered, and rendered incapable of serving her Majesty, and be imprisoned during ber Majesty's pleasure, and sent home to England a prisoner in the first ship, the Admiral shall think fit; and be confined a prisoner, till then.

Captain Cooper Wade, commander of the Greenwich, was tried * before the aforesaid court, on a complaint exhibited by the JudgeAdvocate, on the behalf of the Queen, of high crimes and misdemeanors, of cowardice, breach of orders, and neglect of duty, and other ill practices; committed during a fight, commenced the nineteenth of August, 1702, as aforesaid. (Refer to that part of Colonel Kirkby's tryal.)

The witnesses sworn on behalf of the Queen;
The Honourable John Benbow, Esq. Admiral 1
Lieutenants

9
Masters

3 Inferior officers

3

Witnesses 16 Who deposed, that, during the six days engagement, he never kept the line of battle, fired all his shot in vain, not reaching half

• October 10th, and 12th.

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