Relation of the Prosecution of Nathaniel Fiennes, Trial proceedings · Letter 3 – Floating text 5
SIR,
ON Friday night late I received a Note from your Foot-boy, without name or date, with a dateleſſe, nameleſſe Paper incloſed, pretended to be a Proclamation of my Lord Generals, to appeare at a Councell of Warre on Thurſday next (not expreſſing what time of the day) to be held in the Army, (without mentioning in what certaine place, the Army being diſperſed into divers quarters remote from Towne) to juſtifie what I have written concerning the cowardly and unworthy ſurrendring up of Briſtoll; which generall, the conſciouſneſſe of your own guilt makes you (it ſeemes) to appropriate wholly to your ſelfe, though not named by me: This I ſhall be ready to doe (ſince thus unexpectedly challenged into the Liſts) when I ſhall be legally ſummoned thereunto, at a certaine competent time and place. To which end (ſince your Foot-boyes nameleſſe, dateleſſe Summons, without any Warrant under my Lord Generals Hand and Seale; with the dateleſſe, nameleſſe, placeleſſe, ſealleſſe Proclamation incloſed, are but groſſe aritificiall flouriſhes to blinde the world, and meere Nullities in Martiall, Common, Civill, Canon Law, as all profeſſors of them will inſtruct you; yea ſuch an individuum vagum, which makes intelligent men conceive, that you intend onelyonly to abuſe the world with flouriſhes, but never to put your ſelfe upon a reall publike triall; I and Mr. Walker, to ſet you into a Legall reall way of triall, have joyned in two Petitions to my Lord Generall and the Houſe of Commons, to appoint a generall Councell of Warre, for the hearing of this publike caſe in a convenient time (the next Wedneſday if you pleaſe) and fitting place within Weſtminſter or London, in preſence of the Houſe of Commons, of which you are a Member, to the end you may vindicate your Honour, and make good your printed Relation to the Houſe, your Letter to his Excellencie, and deluſory rude anſwer to Maſter Walkers Reply, before them, if able, to your juſt Purgation, and our diſreputation or elſe give him and me leave to diſprove them, and juſtifie what we have ſeverally written (my ſelfe by no leſſe authority then a Committee of the Houſe of Commons) to your juſt diſhonour, capitall cenſure, and maintenance of our reputations, which you would wound, if poſſible, to repaire your owne. Truth ſeeks no corners, feares no colours, Trials; neither ſhall I in this common cauſe, wherein the Kingdome hath ſuffered more dammage by Bristols ſurrender, then your life or eſtate are ever able to ſatisfie, though you ſhould loſe both for it, as you may peradventure chance to doe, if you make no better a defence of your cauſe (in which you have now moſt unwillingly ingaged me paſt al retreats) then of this City and Caſtle, and that by your own Martial Law (to omit ancient Preſidents) who diſpoſſeſſed Colonell Eſſex of his Governorſhip of that place, hanged up two Citizens there, and ranſomed others, onelyonly for attempting to deliver up Briſtoll to the Enemy before it was fortified and furniſhed; when you did them a farre greater kindneſſe, to fortifie and furniſh it with all ſorts of Ammunition and Proviſions, at the Parliaments and Kingdomes coſt, and then moſt valiently ſurrendred it, with all the Canon, Ammunition, Treaſure, Proviſions, Ships, Priſoners, Arms, Colours in it; and if we beleeve Mercurius Aulicus, beſtowed them on the King, to the irrepairable loſſe and danger of the whole Kingdom, before any one Sconce taken, any one ſhot made againſt the Cities or Caſtles walls, or the leaſt aſſault of either of them. And yet ſuch hath beene the ſtrange carriage of this action hitherto, on your part, that
Dat veniam Corvis, vexat Cenſura Columbas.
You cenſure, quarrell all other men, who dare be ſo valiently honeſt as to diſpraiſe this your Heroick State-Service, which hath quite undone them. Sir, if you bee as really confident of your owne innocency and valour, as you are quaerulous of our pretended calumnies of them, (who beleeve we have written farre more truth of you, then your ſelfe have done) I conceive you will cordially ſecond our Petitions, for ſuch a faire publike hearing here as we deſire, and the world expects, after ſo many printed Bravadoes; otherwiſe the whole Kingdome will pronounce you guilty, and all men of Arms, of Honour, proclaime you a coward, if you flee a faire publike Triall; wherein I ſhall punctually follow thoſe Texts you point me to, Exod. 23. 1, 2, 7. (which I wiſh you had made uſe of in this cauſe) and aime not ſo much at victory, or private ends, as verity and publike good in this legall combat: in which I hope to manifeſt my ſelfe a true friend to my Countrey, and no enemy to your ſelfe, but a pious one, of your owne ſeeking.
Yours, William Prynne. Lincolns-Inne, 17. Novemb. 1643.
Maſter Prynne and Maſter Walker finding themſelves thus altogether ſurpriſed with theſe undermining Policies of the unreſtrained, unqueſtioned Delinquent, and the great ſtraits of time in a buſineſſe of ſuch common concernment, the one of them being likewiſe at that inſtant ingaged in other publike ſervices for the State of great moment, the other a priſoner, they thereupon drew up two ſeverall Petitions to the Parliament and his Excellency for a publike triall of this cauſe within London or Weſtminſter. The Petition to his Excellency, (preſented by Maſter Prynne) was this:
To his Excellency ROBERT Earle of Eſſex, &c. Lord Generall of the Parliaments Forces.
The humble Petition of Clement Walker (Priſoner in the Tower) and William Prynne Eſquires.
Shewing,
THat your Petitioners on Friday laſt in the evening received two ſeverall Notes in writing, with Papers incloſed (both of them without any name, date, direction) pretended to be Copies of a Proclamation iſſued by your Excellency, brought to us by a Foot-boy, not from your Excellency, or any of your Officers, or a Councell of Warre, or by direction from either, but from Colonell Nathaniel Fiennes himſelfe, and in his name; whereby we are by name particularly required, to appeare before a Councell of Warre on Thurſday next, to be held in the Army, to juſtifie ſuch things as we have ſeverally publiſhed in print (ſome of them by authority of the Committee of the Houſe of Commons for printing) touching his ſurrenrender of Briſtoll, whereof he was late Governour, and to give in our informations of any thing done by him or his Officers in that action contrary to the Rules of War and honour of Souldiers; without any expreſſion of the time of the day where, or certaine quarter of the Army (now diſperſed into ſundry remote places) where the ſaid Counſell ſhall be held or appearance made. In regard of which illegal Summons, and uncertainties, as likewiſe of the ſhort warning to prepare our witneſſes, and your Petitioner Walkers preſent impriſonment in the Tower (by the ſaid late Governours practiſe and procurement) your Petitioners, though moſt willing to prove, and deſirous to juſtifie before all the world what ever they have publiſhed touching the ſaid Colonels ſurrender of Bristoll, (for the Kingdomes future ſecurity, and terror of all puſilanimous Commanders, who ſhall diſhonourably betray their truſt) are yet altogether diſabled to performe this ſervice, unleſſe they may have free liberty, a certaine place of appearance, and competent time aſſigned them to prepare their impeachments and witneſſes in this leading caſe, of generall conſequence and concernment to the whole Realme.
In tender conſideration whereof, and for that divers Members of the Honorable Houſe of Commons are, or muſt be intereſſed in this common cauſe as Parties or Witneſſes, whoſe preſence will be neceſſary at the hearing; your Petitioners for the more eaſie, ſpeedy, publike ſolemne triall hereof, humbly ſupplicate your Excellency to aſſigne them a competent time and place within the City of London or Weſtminſter, where they and their witneſſes may be perſonally and fully heard touching the premiſes before a general Counſell of War, in the preſence of ſuch Members of both Houſes as ſhall voluntarily or by Order repaire to the ſaid triall; where your Petitioners at their perill, ſhall (by Gods aſſiſtance) be ready to make good their ſeverall Allegations againſt the ſaid Governour, who cannot but readily joyne with them in this their juſt requeſt, if ſo innocent, or injured as he pretends.
And your Petitioners, &c.
His Excellencies Anſwer to it was, that he would talke with Colonell Fiennes about it; The Petition to the Parliament was to like effect; and the Houſe upon reading thereof, referred the buſineſſe wholly to my Lord Generals direction.
Theſe Petitions though they received no other Anſwers, yet gave occaſion to Colonell Fiennes to procure an Adjournment of the Counſell of Warre, to a farther day, which was poſted up at Weſtminſter and the Exchange in this forme.
Whereas a Councell of Warre was to be held this day at Windſor about the delivering up of the City of Bristoll, and whereas the Plaintiffes have Petitioned for longer time, to bring in their proofes, and the Armie being upon its remove, whereby divers Officers whoſe preſence is needfull, are likely to be hindred from giving their attendance; The ſaid Counſell is adjourned till this day fortnight. Dat. 19. October 1643.
Eſſex.
By this time the Colonell finding his Proſecutors (thus publikely ingaged by himſelfe) reſolute to proceed for their Countreyes common ſervice and ſecurity, and that they were neither daunted nor diſcouraged by all his flouriſhes and deviſes; having thus contrary to his expectation, brought his foot into the ſnare, out of which he could not draw it againe; thereupon his heart (as falſe to him in other things as in the defence of Briſtoll) did ſo much miſ-give him, that taking advantage of the imployments and abſence of ſome Officers in the Army from the head quarter, he procured ſixe or ſeven ſucceſſive adjournments of the day of triall (ſome of them after a perremtory) to be ſet up at Weſtminster, thereby to tire out the Proſecutors: which they perceiving, thereupon drew up their Articles of Impeachment againſt him, which annexing to a Petition, they exhibited to the Houſe of Commons to prevent all juſt exceptions of breach of priviledge, and quicken and expidite the triall. The Articles are the ſame hereafter mentioned. The Petition as followeth.
To the Honourable, the Knights, Citizens, and Burgeſſes in the COMMONS Houſe of PARLIAMENT aſſembled.
The humble Petition of Clement Walker and William Prynne Eſquires.
Shewing,
THat the buſineſſe of the ſurrender of Briſtoll to the Enemy by Colonell Nathaniel Fiennes, late Governour thereof (to the irrecoverable loſſe and danger of the whole Kingdome) was upon his owne motion (made of purpoſe as we conceive to evade, or delay the examination thereof) referred by Your Order to a Counſell of Warre, ſince which the Colonell hath cauſed ſeverall papers in his Excellencies name to be poſted up at Weſtminſter hall gate, and Exchange (to put a flouriſh on that action) requiring your Petitioners by name (though never yet ſerved with any Warrant, and one of them ever ſince deteined a Priſoner to hinder the proſecution) to eppeare before a Counſell of Warre to informe againſt the ſaid Colonell touching that buſineſſe, without expreſſing any certaine place where it ſhould be held, which Counſell hath beene ſince thrice adjourned to no place at all, or to a remote one, if any, and is like ſtill to be adjourned, by reaſon of the Armies motion, whereby your Petitioners (now publikely engaged by the ſaid Colonell himſelfe effectually to proſecute him for the common good, and future ſecurity of the Realm) ſhall be either diſabled, or retarded to bring that cauſe to a full, and ſpeedy publique triall, as they deſire.
In regard therefore that the ſaid Colonell is a Member of this Honourable Houſe, the buſineſſe on his part miſrepreſented by him in the Houſe, wee not yet heard, the witneſſes in or neere London, (ſome of them Members of the Houſe) not conveniently drawne to the Army without great expence, others of them ſuddenly to diſperſe themſelves into the Weſt and Northerne parts; the buſineſſe of great concernment to the whole Kingdome, to many Inhabitants of this City who have loſt their eſtates thereby, and this a leading caſe to others of like nature, not fit to be hudled up in a corner, ſince anciently tried only in Parliament, and now thence tranſmitted only by the ſaid Colonels owne motion.
Your Petitioners humbly deſire your Honours out of your zeale to publique juſtice to order, that this cauſe may have a faire and ſpeedy tryall upon the Articles of Impeachment hereto annexed againſt the ſaid Colonell (which we are ready to prove at our perils) either in full Parliament according to ancient uſe, or at a generall Counſell of Warre, to be held publiquely within London or Weſtminſter at a ſet time and place, in the preſence of your Honours, concerned in it in the Kingdomes behalfe; which they humbly conceive, the ſaid Colonell, if faultleſſe, will readily condiſcend to; and that he, upon theſe our Articles of Impeachment may (according to ancient preſidents, and the preſent examples of Maſter Waller, Sir Iohn Hotham, and his ſonne, with others of like nature) be forthwith committed to ſafe cuſtody till the tryall.
And your Petitioners (deſirous of nothing herein but the Republiques and your Honours ſafety and ſervice) ſhall ever pray, &c. Clement Walker. William Prynne.
This Petition by reaſon of other occaſions, though daily and earneſtly ſollicited, could not gaine Audience in ten dayes ſpace; and then a day being appointed for its reading, Col. Fiennes and his friends, who had notice of it, endeavoured to ſuppreſſe it as ſoone as read, and the Articles too: ſome of them excepting againſt the word hudled up, in the Petition, as ſcandalous to his Excellency, and the Councell of warre (though not ſo intended, and Col. Fiennes his own expreſſion in a paper to Mr. Pryn;) others of them, pretending the Articles of Impeachment annexed to the Petition, were as great a breach of the priviledge of Parliament, as that Impeachment againſt the five Members (though done only in purſuance of the Colonels owne motions, and the Houſes own Orders, who had formerly referred him to the triall of a Councell of warre, and ſo the caſes no wayes parallel:) moved, that they might be ſealed up and ſuppreſſed before they were heard or read, and the Petitioners brought to the Barre, and proceeded againſt criminally for the ſame: ſo much Art and Policy was there uſed to retard and take off this Proſecution. But at laſt after long debate in the Houſe, upon the reading of Mr Prynnes forecited Letter to the Colonell (who there produced it by way of complaint, deſiring it might be read, thinking thereby to lay up Mr Prynne in Priſon as he had done Mr Walker; and ſo to be ſuddenly quit of his Proſecutors with Honour and Triumph,) the Houſe, quite contrary to his expectation, made theſe enſuing Votes for the reading of the Articles, and recommending them to his Excellency.
Die Mercurii 15. Novembris 1643.
THe humble Petition of Clement Walker and William Prynne Eſquires, concerning Mr Nathaniel Fiennes, and the ſurrender of Briſtoll, was this day read in the Houſe of Commons; and Articles of accuſation of the ſaid Mr Fiennes touching the ſurrender of the ſaid City of Briſtoll, and Caſtle, were this day likewiſe preſented to the ſaid Houſe. A*To wit, that in p. 5. at the Colonels own intreaty. Letter from Mr Prynne to Mr Nathaniel Fiennes was likewiſe read.
Ordered by the Houſe of Commons, that as they ſhall be carefull that there ſhall be a faire and equall Triall of Mr Nathaniel Fiennes, ſo they will take the Petition of the Petitioners, and the Articles after the Triall into conſideration, in as much as it ſhall concerne my Lord Generall and the Councell of Warre, and as it ſhall concerne the Priviledge of Parliament. Reſolved, &c.
That the Articles, entituled, Articles of accuſation and impeachment againſt Colonell Nathaniel Fiennes late Governour of the City and Caſtle of Briſtoll touching the diſhonourable ſurrender thereof to the Enemy, contrary to his Truſt and duty, by Clement Walker, and William Prynne Eſquires, ſhall be now read. The ſaid Articles and Impeachment were accordingly read.
The Petition and Articles were ſigned Clement Walker, and William Prynne; and they were both called in, and at the Barre being demanded, whether the names ſubſcribed were of their owne hand writing, did avow the names to bee of their owne hand writing, and did avow the ſaid Petition and Articles.
Ordered that a Copy of theſe Articles, atteſted under the Clerks hand, bee forthwith ſent to my Lord Generall.
H. Elſynge Cler. Parl. D. Com.
Theſe Votes ſoone after drew on the long-delayed Triall, put off by ſeverall adjournments from the 19. of October till the 14 of December; ſo long were theſe Gentlemen ere they could bring the Beare to ſtake, notwithſtanding his many vapouring flouriſhes of purpoſe to abuſe the world, which before this were diſcovered by moſt, to be no better then fig-leaves to cover his ſhame withall.
After all theſe undermining endeavours of Colonell Fiennes, to ſuppreſſe, retard, diſcourage, and tire out his Proſecutors, came the long expected day of Triall at Saint Albanes, upon Thurſday the 14 of December 1643. where Mr Walker and Mr Prynne appearing before a ſelect Honourable Councell of Warre, deſigned and aſſembled to heare this cauſe in a Roome adjoyning to the Town-Hall; Dr Doreſla Judge Advocate of the Army, there demanded of them, whether they had any Articles of Impeachment drawne againſt Colonell Fiennes? To which Mr Prynne replied, that he being a Member of the Houſe of Commons, they had exhibited their Articles to that Houſe, who by Order had ſent a Copy of them to his Excellency, upon which they were to proceed. Which the Advocate thereupon acknowledging, my Lord Roberts Preſident of the Councell of warre, commanded him to read the ſaid Order and Articles ſent together with it; as ſoone as the Order was read, Mr Prynne tendred a copy of the Articles of impeachment under Mr Walkers and his owne hands, agreeing with thoſe delivered to the Houſe, which he averred they were there ready to make good in each particular, deſiring the Councell to proceed upon them, becauſe the other was but a copy which they had not ſubſcribed, but this they now tendred an originall; which was aſſented to.
Upon this Dr Doriſla the Iudge Advocate was commanded to read the Articles; but Mr Prynne then perceiving the doores kept cloſe, contrary to expectation, and all Perſons, Auditors, but themſelves alone, excluded; and fearing that by this meanes a doore would be opened to Colonell Fiennes and his party to miſreport the proceedings of this Triall, as they had done the Relation of the ſiege and ſurrender of Briſtoll, before the reading of the Articles made this requeſt to the Councell, that this hearing might be as publike as the cauſe it ſelfe, and as that place could afford; the doore ſet open, and none excluded; the rather, becauſe himſelfe and Mr Walker (being no chalengers, but chalenged) were engaged in this Proſecution, not in their own particular intereſts, but the Republikes, and that by ſpeciall Order of Parliament (the repreſentative 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,Wee read in Scripture that among the Iewes, the Iudges ſate openly in the City gates, the moſt publike place of all. 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 a caſe of Baſtardy, hee hoped this Honourable Councell would now anſwer the Advocate in this caſe of our Impeachment;*Stat. Merton 20. H. 3. c. 9. Nolumus leges Angliae mutare, quae hucuſque uſitatae ſunt & approbatae; and ſo allow us a publike triall, to ſatisfie both the Parliament and People, whoſe eyes are fixed on it; elſe if it ſhould be private, they would be apt to report, it was hudled up in a corner: for which innocent expreſſion, as we intended it (St Albanes and this Councell in reſpect of London and the Parliament, being but a corner) ſo much exceptions was taken in the Houſe againſt our Petition. In fine, he alleadged, that Col. Fiennes himſelfe, who had made ſuch publike profeſſions of his innocency, both before the Houſe of Commons, His Excellency, and the World, in printed Speeches, Relations, Letters, had moſt cauſe to deſire, and leaſt reaſon to decline an open triall, ſince Truth and Innocency ſeek no corners: and his Honour, his Honeſty now openly charged, could not otherwiſe then openly be diſcharged; no triall being publike enough for him who preſumes his Innocency able to endure, and profeſſeth a deſire to bring it to the touch, that it may be cleered. And if he ſhould now decline an open triall, after ſo many publike Bravadoes in London and elſewhere, it would draw upon him a juſt ſuſpition of guilt in moſt mens opinions, ſince no man*Iohn 3. 19, 20. fleeth the light, but he whoſe works are evill.
Upon this, the Lord Roberts demanded of Mr Prynne, what he meant by a publike triall? whether only the reading of the Articles, Anſwers, producing of witneſſes, and managing the evidence to make good the Articles? or elſe, the Councels private debates of the cauſe among themſelves after the hearing? To which Mr Prynne replied, that he meant only the former of theſe, the Iudges debates many times in caſes of difficulty being private after hearings, till they come to deliver their reſolutions in publique. Hereupon all were cōmanded to withdraw; and then one of the Councell, after a ſhort debate, was ſent to his Excellency to know his pleaſure, whether the Triall ſhould be publique, as the Proſecutors deſired, or private? who returned anſwer, that is ſhould bee private; with which reſolution the Proſecutors (being called in) were acquainted.
Mr Prynne upon this anſwer deſired, that he might put in writing the Reaſons he had ſuddenly offered to the Councell for an Open Triall, that ſo they might be preſented to his Excellency, for that (as he conceived) he had not been made acquainted with them, who upon conſideration of them, might happily alter his Reſolution. Upon which motion, the Councell ordered the Iudge Advocate and Proſecutors to repaire to his Excellency to acquaint him with the former Reaſons by word of mouth, which they did very briefly: But the Advocate informing his Excellency, that it was againſt the priviledges of the Councell that the triall ſhould be open, he anſwered, that he would not infringe the priviledges of the Councell, whom he thought we ſeemed to diſtruſt by demanding a publike triall; which diſtruſt we utterly denied, being confident of their impartiall Iuſtice. Upon returne of this Anſwer to the Councell by the Advocate, we (only as over-ruled herein) choſe rather to ſubmit to a private triall of ſo publike a cauſe, then to have it reported by Fiennes and his maſters of calumny, that we declined a triall, becauſe we were unable to make good our Impeachment. And we do freely acknowledge (and ſo muſt Col. Fiennes himſelfe) that both we and he had a very full, Patient, Iuditious, Honourable faire hearing (ſcarce paralell in any Age or time) which continued nine dayes ſpace, when as Briſtoll was loſt in leſſe then three, moſt of the Councell diligently taking notes of what ever was pertinently alleadged on either ſide.
The manner of the Triall being thus ſetled, our Articles of Impeachment were firſt read, and then his Anſwer delivered in writing unto them, which he had time to prepare from their firſt reading in the Commons Houſe (where he took a copy of them) till this day of Triall. The Articles and Anſwer to them here follow in order.