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.

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 his 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 first of these Objections Mr. Prynn To the second Exception, concerning sir returned this Answer: First, That himself had William Waller, Mr. Prynn most solemnly proformerly used this kind of proceeding in the tested for himself to the council, that it was a case of col. Essex, against whom he had not most false and malicious slander; that neither sir only taken, but printed divers paper-testimo- Wm. Waller, nor his lady, nor any other in nies, in things which might have proved capital their behalf, did ever directly or indirectly exif the proof had been full. That himself in this cite, advise, or incourage him in this prosecuvery case had sued forth a commission to exa- tion; that the delinquent himself was the mine witnesses on his behalf, without our pri- only man who unadvisedly put himself upon vity, before we took forth any commission, who this trial, as appears most evidently to all did but imitate him therein, and that by the the world, by the close of his printed ReJudge-Advocate's own advice, who directed us lation in the Parliament House, where, page to this course, which he affirmed to be both 13,He desires the house of commons, that legal and usual; That in the civil law, espe- they would be pleased to let the truth of what cially in courts martial, trials were as usual he had then affirmed to them (concerning the testimoniis, as testibus viva voce: That in the surrender of Bristol) be examined at a counAdmiralty, (a civil law court) as likewise in the cil of war, that so he might be cleared or conChancery, Star-Chamber and English courts, demned, as they should find the truth or falsformed after the civil law, they proceed usuallyhood of what he had delivered;' by his, and by way of deposition: That even at the com- his officers Petition to his Excellency, and his mon law in some cases, depositions taken be- Excellency's Proclamation upon their Petition, fore the coroner, and examinations upon oath posted up at Westminster and the Exchange, before the chief justice, or other justices, are wherein he summoned Mr. Walker and Mr. usually given in evidence even in capital Prynn by name, in the most public manner that crimes: That the high court of parliament hath might be, and after that by private notes, and upon just occasion allowed of paper-deposi- sundry other public adjournments, to be his tions in such cases: That in all courts-martial, prosecutors; Which thankless office he was not both in England and elsewhere, they have been altogether unwilling to undertake, when thus constantly allowed, and particularly in the late openly engaged by the Defendant; not out of famous case of Tomkins, Challoner, and other any private malice to the delinquent, whom London conspirators, whose examinations were he formerly honoured, and to whom he never read, and given in as evidence one against the bore any particular spleen, having never reother, upon which they were condemned and ceived the least injury from him; much less executed. Besides, there was both very great out of any dangerous respects, instrumentally reason and necessity that such depositions to wreck the private malice or revenge of any should be admitted in this case, and in all mar- others upon him, (it being below his spirit, and tial proceedings of this nature, because divers most averse to his genius, his conscience, to be of our material witnesses, being officers or sol- subservient or instrumental to any man's madiers now in actual service, and dispersed upon lice or revenge whatsoever) but merely out of several occasions into divers brigades, and parts a real desire to do his country faithful service, of the kingdom remote from St. Albans, could and vindicate the truth of this unworthy statenot without great danger, disservice to the ruining action, under which the whole kingdom state, inconvenience to themselves, and exces- no sive costs, be drawn together personally to l tend this trial, which adjourned, not

Jy languishing, from those false disguises.

the Defendant in sundry printed papers braded on the world, to salve his own ircable dishonour. The prosecution thereproceeding thus merely from himself, as the premises infallibly demonstrate, he had la most scandalous' imputation upon sir Militam Waller (a noble well-deserving gentleman then absent,) and on himself, in the fore

A

as well as his, being not taken so públicly 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 these 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.

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 de'clare 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 commis-could not undertake it: Which is in plain sioner, the rather because col. Carre (a man indifferent) was joined with him; much less any legal exception to any officers or soldiers testímony 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, could not cross-examine them, nor ever yet their depositions: And why our deposi, being prosecutors, should not be admitted

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

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 before 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 pri" soners, cannons, ammunition, 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 enemy had taken any of the Out-forts about the same, or had made the least assault or battery 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 cowardly Surrender, in the superlative degree, he humbly submitted to the honourable Council's judgment, and the determination of all men en

dued with common reason; and yet the Defen- against city or castle, was upon good and hodant hath the confidence, in the same branch of nourable conditions, in respect to the estate his Answer, to deny that he did deliver them he was in.' I think he means himself was in up traiterously, cowardly, or dishonourably, an ill condition, should the king's forces have or contrary to his former promises,' (which forcibly taken him prisoner, for that the king were to dispute every inch of the Town, from had excepted him out of the pardon mentioned the line to the City-gates, and from thence to in his Auswer to the third Article: And therethe Castle-walls, which he would defend to the fore out of base fear and self-respects he would utmost, and there lay his bones if he could not rather redeem his head, and buy his peace keep it, and make his flag of truce his winding-with the voluntary surrender of a place of such sheet, as is proved by divers witnesses,) [Mr. Powel, col. Strode,col. Stephens, Mr. Hassard, 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 cominanders, he referred to the resolution of all there present.

consequence to his majesty, than hazard his life in defending it to the utmost. And withal he adds, That this surrender was for the ho nour, profit, and best advantage of the king'dom, and parliament, by whom he was ens trusted:' which when he shall be able to de

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:

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 de

3. He confesseth, that though neither any of the outworks were taken, nor the Town 1. That the Defendant wanted neither men walls once battered or assaulted, when the nor ammunition, nor any manner of provision, enemy entered the line, yet as things then to defend the City and Castle against the enc• stood, neither the Forts nor Castle ought to my: Not men, for he bad 2,000 foot, and 300 have been kept, to the prejudice of the City horse, besides volunteers, to defend the town; and Garrison, but ought to have been surren- and he might have raised at least 6 or 8,000 'dered together with the City, as they were, able men more in the City, if he had wanted by the constant practice and policy of war in men, which were as many, or more, as besieged all places, the principles of justice and hones-it. Proved by the depositions of col. Stevens, ty, and the rules of wisdom and discretion. Anthony Gale, Arthur Williams, Able Kelly, And he further adds in the clause of his An- James Powel, and others. swer to the eighth Article, That he doth affirm 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 Out-poseth 50 at least. Forts 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.

Fourthly, He saith, That this surrender of the city, castle, forts, with all the ammunition, cannon, magazines, arms, (but troopers 'swords) prisoners, ships, and his very colours, 'before any out-fort taken, or battery made

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.