disgusted, to attest, that Master Walker's reply to col. Fiennes's Relation, was shewed to sir William and his lady before it was printed, and that sir William had spoken to his officers to acquaint Mr. Walker with all such passages as they knew concerning col. Fiennes, touching the siege and surrender of Bristol: therefore he was neither a fit commissioner nor witness in this cause, nor yet any of his officers under him. 3. That he had not joined with the prosecutors in Commission, neither had he notice thereof, that so he might cross-examine the Witnesses. Therefore for these reasons, he dedesired, that all the Paper-Depositions might be suppressed, and not given in evidence against him. To the first of these Objections Mr. Prynn returned this Answer: First, That himself had formerly used this kind of proceeding in the case of col. Essex, against whom he had not only taken, but printed divers paper-testimonies, in things which might have proved capital if the proof had been full. That himself in this very case had sued forth a commission to examine witnesses on his behalf, without our privity, before we took forth any commission, who did but imitate him therein, and that by the Judge-Advocate's own advice, who directed us to this course, which he affirmed to be both legal and usual; That in the civil law, especially in courts martial, trials were as usual testimoniis, as testibus viva voce: That in the Admiralty, (a civil law court) as likewise in the Chancery, Star-Chamber and English courts, formed after the civil law, they proceed usually by way of deposition : That even at the common law in some cases, depositions taken before the coroner, and examinations upon oath before the chief justice, or other justices, are usually given in evidence even in capital crimes: That the high court of parliament hath upon just occasion allowed of paper-depositions in such cases: That in all courts-martial, both in England and elsewhere, they have been constantly allowed, and particularly in the late famous case of Tomkins, Challoner, 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 martial proceedings of this nature, because divers of our material witnesses, being officers or soldiers now in actual service, and dispersed upon several occasions into divers brigades, and parts of the kingdom remote from St. Albans, could not without great danger, disservice to the state, inconvenience to themselves, and excessive costs, be drawn together personally to attend this tral, which had been so frequently adjourned, not only from week to week, but place to place: That we several times petitioned both the commons house and his Excellency, that the council appointed for this trial might be held at a certain day and place, within London or Westminster, before our wit nesses were dispersed, and where we could with less trouble and expence to ourselves and them, have produced all or most of them viva voce; but yet we could not (through the Defendant's procurement, as we conceive) obtain this reasonable request: Therefore himself being both the cause and precedent of these our depositions, and of removing the Trial to this place, for our greater incommodation and expence, ought not to take advantage of bis own wrong, against a maxim of law, the constant practice of the court-martial, and his own leading example, which we did but imitate. Which point the council did upon solemn debate among themselves clearly over-rule against the Defendant, upon the premised reasons. To the second Exception, concerning sir William Waller, Mr. Prynn most solemnly protested for himself to the council, that it was a most false and malicious slander; that neither sir Wm. Waller, nor his lady, nor any other in their behalf, did ever directly or indirectly excite, advise, or incourage him in this prosecution; that the delinquent himself was the only man who unadvisedly put himself upon this trial, as appears most evidently to all the world, by the close of his printed Relation in the Parliament House, where, page 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 coun'cil of war, that so he might be cleared or con'demned, as they should find the truth or fals hood of what he had delivered;' by his, and his officers Petition to his Excellency, and his Excellency's Proclamation upon their Petition, posted up at Westminster and the Exchange, wherein he summoned Mr. Walker and Mr. Prynn by name, in the most public manner that might be, and after that by private notes, and sundry other public adjournments, to be his prosecutors; Which thankless 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 less out of any dangerous respects, instrumentally to wreck the private malice or revenge of any others upon him, (it being below his spirit, and most averse to his genius, his conscience, to be subservient or instrumental to any man's malice or revenge whatsoever) but merely out of a real desire to do his country faithful service, and vindicate the truth of this unworthy stateruining action, under which the whole kingdom now lay languishing, from those false disguises which the Defendant in sundry printed papers had obtruded on the world, to salve his own irreparable dishonour. The prosecution therefore proceeding thus merely from himself, 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 fore mentioned exception, for which he demanded justice against him from that honourable council, unless he could make good this calumny, for which he was most certain the Defendant had not the least shadow of proof; the testimony of Dowet, the ground of this aspersion, not referring to him, but only to Mr. Walker's Relation, published long before any impeachment of, or prosecution against the Defendant: which charge Mr. Walker himself there present was ready to answer, as to that particular. Hereupon Mr. Walker informed the council, That he acknowledged in the Epistle to his Answer to the Defendant's Relation, That it was but a collection out of the several reports of 'divers gentlemen and commanders in that 'service, before and when Bristol was besieged:' which when he had drawn up, having occasion to go to Southampton, he left in the hand of a friend, desiring him to shew it to whomsoever be 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 he was since informed) shewed it to sir W. Waller. He said further, that the written copy was shewed to the Defendant himself, and therefore he doth not wonder if it were shewed to sir W. Waller: and that sir William's speaking to his officers, only to declare what they knew touching that business, 'with reference simply to his Answer,' could not be intended either malice, or combination, or prosecution of this impeachment, not then so much as thought 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 man's knowledge: That therefore this could be no just exception to sir William as a commissioner, the rather because col. Carre (a man indifferent) was joined with him; much less any legal exception to any officers or soldiers testirony then under his command, who did but testify what they knew for truth. Besides, Mr. Prynn added, that col. Fiennes himself had examined divers of sir W. Waller's 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 kingdom's advantage, when himself had examined them only for his private defence, there could be neither reason nor equity alledged, it being a mere artifice, to deprive us of our most material witnesses, and to suffocate the truth. To the third, of his wanting notice to join in Commission, and cross-examine the witnesses on the other side, Mr. Prynn answered: 1. That himself had begun the precedent, in taking forth several commissions to sir W. Waller's, and the earl of Manchester's army, to examine witnesses there, without our privity or consent, who neither had any the least notice of the commissions to join in them, nor of any the witnesses names, till the hearing, nor had not, nor could not cross-examine them, nor ever yet saw their depositions: And why our deposiLions, being prosecutors, should not be admitted as well as his, being not taken so publicly before the Judge-Advocate, as most of ours were, he saw no reason. 2. That we could not enforce col. Fiennes to cross-examine any witnesses, or to join with us in their examination; therefore if he neglected to do it, or went before us in his commissions, as he did, by virtue of which he might have examined all our witnesses if he would, before we had taken their testimonies against him, the default was his, not ours. That we left all our Depositions, and the Witnesses names, with the Judge-Advocate, to whom he oft repaired, and from whom he might have received the catalogue of them, to crossexamine them, if he pleased; which since he neglected to do, after so many adjournments, and taking no exceptions till now he came before the Council, of purpose to evade his trial, and to elude both them, us, the parliament, and people, whose eyes are on the issue of this business, there was no reason to allow the e frivolous exceptions. All which the Council, upon short debate, over-ruled against the Defendant, resolving, that the testimonies ought to be used, unless some particular just exception could be alledged against any of them. These Obstacles being removed, Mr. Prynn then proceeded to prove the fourth Article; which he did, First, By the Defendant's own Answer thereunto, wherein he doth confess the whole Article in substance; yea, more than it chargeth him withal, as namely, 1. That he never undertook to make good the City or Castle, or either of them, against 'the enemy; declaring that he would not, nor could not undertake it: Which is in plain English as much as to confess, that he had never any thought or resolution to hold them out to the utmost extremity, as he ought to have done in honour and duty; but a professed purpose to surrender them to the enemies, traiterously or cowardly, as soon almost as they came be fore it. 2. That soon after the enemy entered the line' (with a very inconsiderable number, not above 150 at first, and three or four hundred in all at last, as the witnesses attest) he did surrender the Town and Castle, with all the prisoners, cannons, ammun tion, artillery, military provisions, magazines, victuals, and part ' of the arms,' (all but the horsemen's swords, most of which were likewise taken from them ere they departed the Town) before the ene6 my had taken any of the Out-forts about the same, or had made the least assault or battery 6 upon the walls of the City, or of the Castle, or any mine or breach into the chief fort thereof, (and that before the Town had been three 'whole days besieged,' which he denieth not, and therefore granteth by his Answer:) Which whether it were not a most clear confession and demonstration of a treacherous and cowardlý Surrender, in the superlative degree, he humbly submitted to the honourable Council's judgment, and the determination of all men en against city or castle, was upon good and honourable conditions, in respect to the estate he was in.' I think he means himself was in an ill condition, should the king's forces have forcibly taken him prisoner, for that the king had excepted him out of the pardon mentioned in his Answer to the third Article: And therefore out of base fear and self-respects he would rather redeem his head, and buy his peace with the voluntary surrender of a place of such consequence to his majesty, than hazard his life in defending it to the utmost. And withal he adds, That this surrender was for the lo'nour, profit, and best advantage of the king'dom, and parliament, by whom he was en'trusted' which when he shall be able to de dued with common reason; and yet the Defendant hath the confidence, in the same branch of his Answer, to deny that he did deliver them up traiterously, cowardly, or dishonourably, or contrary to his former promises,' (which were to dispute every inch of the Town, from the line to the City-gates, and from thence to the Castle-walls, which he would defend to the utmost, and there lay his bones if he could not keep it, and make his flag of truce his windingsheet, as is proved by divers witnesses,) [Mr. Powel, col. Strode,col. Stephens, Mr. Hastard, capt. Bagnal.] or contrary to his trust and duty; and the impudence to affirm, that he did defend the Town and Castle to the utmost " point, not only of duty, but also of honour, that any soldier could or might have main-monstrate, or make the parliament and king'tained the same.' Which whether it were not the greatest paradox and contradiction, that any military man in his right senses durst ever affirm before a Council of experienced, valiant commanders, be referred to the resolution of all there present. 3. He confesseth, that though neither any . of the outworks were taken, nor the Town walls once battered or assaulted, when the enemy entered the line, yet as things then stood, neither the Forts nor Castle ought to have been kept, to the prejudice of the City ' and Garrison, but ought to have been surren'dered together with the City, as they were, by the constant practice and policy of war in all places, the principles of justice and honesty, and the rules of wisdom and discretion.' And he further adds in the clause of his Answer to the eighth Article, That he doth af'firm and will justify, that if the Castle had 'been tenable, yet neither by the constant practice and maxims of war in all places, nor by the rules of honesty and Christianity, he ought to have held the same.' A riddle which Mr. Prynn professeth transcended the limits of his understanding to enucleat, if not of all men's else, but the Defendant's; and a passage which carried Treachery and Cowardice engraven with capitals in its very front, proclaiming openly to all men, that had the OutForts and Castle been never so strong and tenable against the enemy, yet he was so far from resolving to keep them for the Kingdom's and Parliament's security, that he professeth, he ought not to have held the same, neither by the constant practice and policy of war, nor rules of piety or Christianity, but ought to have surrendered the same with the Town.' Certainly this gentleman was either resolved to lose his head when he penned this Answer, or else was intoxicated with the panic fear that surprized him at Bristol, (which hath made his pen and brains to stagger ever since) else he durst not put in such an Answer in writing to this Impeachment. dom believe, I shall profess this honourable Council may in justice acquit him; till then, I hope, you cannot but condemn him, even out of these several passages of his own Answer. Secondly, From his Answer I shall descend to our Proofs, which extend to all the ensuing Articles as well as this: by which it appears: 1. That the Defendant wanted neither men nor ammunition, nor any manner of provision, to defend the City and Castle against the enemy: Not men, for he had 2,000 foot, and 300 horse, besides volunteers, to defend the town; and he might have raised at least 6 or 8,000 able men more in the City, if he had wanted men, which were as many, or more, as besieged it. Proved by the depositions of col. Stevens, Anthony Gale, Arthur Williams, Able Kelly, James Powel, and others. 2. That they wanted not ammunition, for we proved there were 60 (nay 70 double) barrels of powder in the castle, with match and bullet proportionable, besides what was in the city and forts, and might have been made weekly in the town, if held out against the enemy; and that by the depositions of Mr. Edward Bainton, Arthur Williams, Joan Batten, major Wood, and others: Besides, himself confesseth in his relation 50 barrels in the Castle only, when surrendered; Mr. Hassard deposeth 50 at least. 3. That they had all manner of provision both in the City and Castle, for three months space or more; the particulars whereof will appear in the Deposition of Nicholas Cowling, Able Kelly, James Powel, Dorothy Hassard, Mary Smith, and others: That himself and others [col. Strode, col. Stephens, capt. Bagnal, Mr. Powel, Mr. Cowling, major Wood, Richard Lindon, Edward Watlin, Mr. Hassard,] deemed the City and Castle strong and tenable; that be promised to hold the same to the utmost; to dispute every inch of ground with the enemy; to retire into the Castle when he could hold the City no longer; to lay his bones there rather than yield it, and make his flag of truce his winding-sheet. If then the place were so strong and tenable, and he wanted neither men, nor ammunition, nor victuals, to defend the City and Castle, his surrender of them must of necessity be adjudged traitorously, or cow. ardly at least, if not both: for what else but treachery, or cowardice, or both conjoined, could move him to this surrender, in less than three days siege, before the utmost extremity, contrary to the laws and ordmances of war, whenas he wanted nothing necessary for a brave defence? Secondly, We have proved that the town and castle were not besieged three whole days; for the siege itself began but the Monday morning, and the articles of surrender were agreed on before Wednesday night, and the surrender executed before 9 of the clock the Thursday morning: as col. Stephens, col. Strode, Able Kelly, and others testify. | his horse without any charge or resistance; whenas he might easily have repulsed and beat them off. Yet the Defendant never questioned nor complained against Langrish for this his Cowardice and Treachery, which was the only real occasion of surrendering the City, but countenanced and justified him all he could, affirining in print, that he was acquitted by a council of war of cowardice, (which was false ;) and endeavoured to lay the blame of not charging upon one lieut. Rouswell, who was so far from being guilty of this fact, that seeing Langrish with his troop quit the breach without charging, he called him coward, and with three or four musketeers only marched up to Thirdly, That the enemies were generally the enemy, and made good the breach for a repulsed on all quarters of the city, with extra-time, till he received so many wounds (whereof ordinary great loss of men, near 700 of them being slain, and as many wounded, with the loss only of six or eight of our men: and that but 150 of them, or 200 at most, entered the line the Wednesday morning before sun-rising (near three of the clock) and were so afraid of being cut off, that they gave themselves all for dead men, and might have easily been cut off, none of their own party knowing of their entry till two hours after they entered, nor sending them any relief. Attested by Arthur Williams, Joseph Proud, James Coles, Mary Smith, serjeant Wm. Hill, Stephen Radford, Michael Sparks, and others. he after died) as forced him to retreat for want of seconding; he affirming, that if he had been seconded by the horse, or with 20 musketeers more, he could easily have repulsed the enemy, and made good the breach. Yet this dead man must be thus traduced to save Langrish's credit, though capt. Husbands (one of the Defendant's own witnesses) confessed, that Langrish's cowardice, in not charging, was the loss of Bristol, and that he told him so openly to his face, at a meeting in London, sinse the surrender. | Sixthly, That for two or three hours space at least, the few enemies who first entered had Fourthly, That major Langrish and his horse- no relief nor supplies sent to them, neither introops, which had the guard of that place, and deed could have, the enemy being bravely retwo other captains of horse under him, never pulsed with great loss in all other places, so as once offered to charge the enemy, whom they they retired in disorder to their quarters; and might easily have cut off, but retired into the one whole regiment of their horse retreated as city without charging them: That Langrish far as White-Church, four miles from Bristol, (very intimate with the Defendant) had been with a resolution never to come on again, had formerly complained of to him, by licut. Clif- not the message of the unexpected parfey, and ton, col. Stephens, and others, for his extraor- hopes of the city's surrender thereupon, drawn dinary cowardice and negligence, who desired them back to their quarters: And that divers he might be cashiered to walk the street, as un- of the enemies confessed, if they had then been fit for any charge; yet the Defendant continu- repulsed or beaten out of this breach, they had ed him in his place, and set him to guard that raised their siege, and never come on again, very weak place, where the enemy was like-Serj. Hill, major Wood, James Coles, depose liest to enter. Proved by Joan Battin, col. all this, and the Defendant's witnesses confessPopham, col. Stephens, and capt. Nevil, lieut. ed it. Clifton, capt. Husbands, and capt. Vaughan, (Fiennes's own witnesses) upon cross-examinations before the Council. Fifthly, That the day before the enemy entered, one Thomas Munday, a soldier under capt. Henry Lloyd (as both their Depositions witness) pointing with his finger to the very place where the enemy entered the next morning, told major Langrish in the hearing of col. Fiennes: Captain, yonder is a very suspicious place not fully fortified, and it is very doubt'ful; unless you set 100 musketeers more there, it being weakly manned, the enemies 'will there make their first breach.' Whereupon col. Fiennes for this his good advice, in an angry manner asked him, What, doth he prate?' and called him 'Saucy Knave.' And Langrish having the guard thereof, suffered the enemy the very next morning to enter that line at the same place, from which he retired with Seventhily, That from three in the morning, when the enemy entered, till about 10 or 11 o'clock at least, there was no charge at all made, except only with Rouswell, and after by capt. Nevill, who charged them down-hill only with 20 horse, an hour or more after their entry, and could have then beaten them out, as he verily believed, and attested upon oath, had he been seconded with 30 or 40 horse or musketeers. A very strange neglect, to suffer the enemy to lodge so long within the line, ere they were encountered. Eighthly, That upon the enemies entry col. Fiennes, instead of commanding the next guards and companies then at the out-works, to fall upon and beat them out, as he was pressed to do by lieut. Davison, major Wood, capt. Bagnal, Mr. Deane, serj. Hill, and others, commanded upon pain of death by his lieut. Clifton, to draw off the line and works on that side of the city the enemy entered, and to retire into the city with all speed to the marketplace, full sore against their wills: whereat divers of the soldiers [Joan Battin, Wm. Whitehorn, serjeant Gale, captain Bagnall, Thomas Munday] were very much discontented and discouraged, and many of them said, 'They 'were betrayed.' Whereupon they retreated from the line and out-works in great disorder, many of them leaving not only their swords, muskets, powder, bullets, but their very can nons behind them, which might have been easily drawn off, being down the hill, and many colliers horses ready at hand for that service; at which the gunners were so discontented, that some of them spiked and nailed up their touch-holes, to make their cannons unserviceable to the enemy, and the city garrison too, in case they had returned to the works and line; which by this strange soldiery, were left naked of all defence near two miles space together, so as the enemy might have entered the line where they pleased, in sundry places of greater advantage, nearer to the City, Castle, and Suburbs, by much, than where they had made their first entry. Which strange device and unmilitary policy, if it savoured not of apparent treachery, yet at least it cannot be excused from extreme folly, and waut of skill in martial affairs; which made major Lewis, and other of the best experienced soldiers (who advised not to draw off the line into the City, but to fall presently on the enemy from the line itself, which was the nearer, best, and speediest way) exceedingly discontented. Eleventhly, That when the enemy upon the sally, though late, were driven from house to house, and so beaten that they let fall their arms, and cried for quarter; and when the women were so courageous, that they proffered to go with their children unto the cannons mouth, to dead the bullets, in case the soldiers were afraid, rather than the City should be yielded, and thereupon encouraged both the gunners and soldiers to fight, working in the very face of the enemy, and stopping up Froomgate with a very thick work (made with earth and wool-sacks) where the enemy should have entered the City; yet such was the defendant's extraordinary cowardice, that he even then sent twice out to the enemy for a parley, whereas the soldiers generally desired and offered to fight it out to the utmost [serjeant Gale, Joan Battin, Mrs. Hassard, Thomas Munday]: which so much discontented divers soldiers, that they said they were betrayed, and in very anger brake their muskets, swords, pikes, lest the enemy should gain them, swearing that they should never serve the Parliament more, and taxing the Governor for his parley and cowardice. Twelfthly, That the castle was surrendered, the prisoners released [major 'Wood, colonel Strode, and others], the enemy admitted into the town, long before the hour agreed on, through the defendant's hastiness; yea, the soldiers and townsmen pillaged before his face: yet he took no care to see them righted, but left them to the spoil, neglecting to take bostages to see the Articles performed; which, contrary to the rules of war, were not made between prince Rupert, the king's general, and the Governor, but between him and the prince's commissioners only: and that he made such haste to quit the town, that he left capt. Blake, and capt., Husbands, in Brandon-Hill and Prior-Hill forts behind him, never giving them notice of the articles, nor any warrant under his hand to surrender them to the ene my, to the endangering of their lives and liberties. Ninthly, That when the soldiers were thus hastily and confusedly called from the line into the market-place, they there stood idle, look-[Richard Winstone, capt. Husband, and others] ing one upon another, without any command to make a sally, or do any other service to secure the City [captain Bagnall]; whereupon, for want of command and employment, divers of the soldiers who had been upon duty at the | line four or five days and nights together, departed from their colours, some to the tavern, some to the ale-house to drink, others to their beds to sleep, so as their companies were broken, and not half full whereas if they had marched orderly from the line, against the enemies, when they first entered it, which was far the best and shortest way; or made a sally as soon as they retreated from the line, these inconveniences had been prevented, the soldiers kept in heart, the enemies cut off, or beaten out, the breach made up, and the City pre served. : Tenthly, That when the sally was made [major Wood, William Whitehorn], not before, but much about eleven of the clock, it consisted not of above 200 men, and that of those called off the line, the fresh men at the main guard, and capt. Stoke's company purposely kept for a reserve, with the garrison soldiers in the castle, (who were not in the fight at the line, and might have made a present sally, without calling any from the line) being not employed on this service. Thirteenthly, That col. Fiennes being moved to send away the prisoners before the siege, refused, saying, He would keep them there to 'make his own conditions the better;' thinking of nothing before-hand, but to surrender the City, to save himself: that he told [Mr. Talboy's deposition] Mr. Tolboy, that he should not be in Bristol for ought he knew at St. James-tide then next ensuing; and used such expressions to him, as made him believe he meant to surrender the town by that time, (as he did the very next day after St. James's feast) who thereupon left the City, as intended to be surrendered by the governor. That he commanded Mr. Hassard to lay by a reserve of 30 barrels of powder, with match and bullets proportionable, to which when he was reduced he would treat [Richard Butler's testimony]: that there were about 140 granadoes in the Castle, and one new mortar-piece, and that John |