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<TEMPHEAD>
<REVDESCR>
<CHANGE>
<DATE>2010-08-06</DATE>
<RESPSTMT>
<NAME>John Pas</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Checklist:
x Add TEMPHEAD, change DATE, validate
x Add DIV TYPEs, validate
x Review structure, use FRONT, BODY, BACK or rarely GROUP
x Check PB placement and completeness, ensure sequence of N=""
x Proof title page(s)
x Check HEAD TRAILER ARGUMENT EPIGRAPH BIBL OPENER CLOSER SIGNED SALUTE BYLINE
x Check ^, oe, abq, italic I / J, _Initals, space between &amp;c.
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x Check q; startq endq Q
x Check all GAPs and quire signatures
x Check ligatures if in blackletter &abper; &abpro; &abus; &abquod; &absed; &abser; &abcon; &abrum; &abis; and any miscellaneous ABBR's
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x gr; entities
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x f&s; / &s;f
x Capital U / V's in black-letter, w\^[^t]
x accented letters
x ot / ol / of and tr / tb / th
x Correct illegibles from proofsheet
x Check for &punc; in the middle of words
x Check illegible page, para, line, span, word, dollar signs
x Final validate

Corrected [ ] illegible groups out of [ ].
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<EEBO>
<IDG S="marc" R="UM" ID="A89875">
<STC T="W">N382</STC>
<STC T="T">E34_18</STC>
<BIBNO T="umi">99871872</BIBNO>
<VID>154611</VID>
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<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P>A CHECK <HI>To the Checker of</HI> BRITANNICUS: OR, The Honour and integrity of Collonel Fiennes, Revived, re-e&s;tated, and cleared from certain prejudices and mi&s;takes, occa&s;ioned by late mi&s;-reports.</P>
<P>The proceedings of the honourable Councell of War, according to the Article of War ju&s;tified.</P>
<P>The pardon of his Excellencie the Lord Generall <HI>E&s;&s;ex</HI> a&s;&s;erted, and the grounds of it declared, and pre&s;ented to the con&s;ideration of all.</P>
<P>With certain con&s;iderable Queries of publike concerne|ment. <HI>BRITANNICVS</HI> for his eminent &s;ervice to this Cau&s;e, Parliament, and Kingdome, encouraged and vindicated from a late a&s;pertion, in this occa&s;ion by a gro&s;e, &s;editious, and malignant abu&s;ive Pamph|let, called, <HI>A Check.</HI></P>
<P><HI>London, Printed by Andrew Coe,</HI> 1644.</P>
</DIV1>
<DIV1 TYPE="dedication">
<PB REF="2">
<PB REF="2">
<HEAD>To all the well affected party in the Kingdome.</HEAD>
<P>_RAther then a Gentleman &s;hould by his owne patience and mo|de&s;ty, &s;uffer his bloud to bee thus hunted to the la&s;t drop (though for my own part I ne|ver &s;aw his face) yet having &s;een the tran&s;actions and pro&s;ecutions of his bu&s;i|ne&s;&s;e, I &s;hall write, not to contradict, provoke, contend with, or exa&s;perate the pen of any, But to &s;tate the condition of a &s;entence and crime, in this coniuncture of time, when wee have &s;o many: and to publi&s;h the excellent iu&s;tice of that honourable Court of War in its commen|&s;urate proceedings, according to the very letter and article of war, and the candid power of the Generall, and Supream of that Councell in re|mitting the &s;entence upon iu&s;t and honourable grounds, as appears to him, and appears to me,
<PB REF="3">
but am &s;orry the de&s;igne of Malignants &s;hould &s;o &s;ecretly and cunningly, winde about the iudgment of &s;ome good men among&s;t us, un|di&s;cerned, and unob&s;erved of them, under the pretences of publicke &s;ervice, reioycing in the dark, that they can put on our own party to pro&s;ecute one another, triumphing to them|&s;elves that they can make us lop off our owne branches, and act that upon our &s;elves in their behalf, which they them&s;elves cannot do upon us; But I here publi&s;h to the World, this is the grand artifice, and de&s;igne of the enemy abroad &amp; now at this time, in this Kingdom, working in &s;ecret to make us the &s;ad and fatall in&s;tru|ments of undoing and de&s;troying one another, and da&s;hing our &s;elves again&s;t our &s;elves. But I hope wee &s;hall di&s;cern and embrace one an|other to the de&s;truction of their Stratagem: <HI>Let us put on therefore as the elect of God, bowels of mercies&punc; kindne&s;&s;e, forbearing one another, and forgiving one another, and above all, put on charity which is the bond of perfectnes.</HI> Col. 3. 12, 13, 14.</P>
</DIV1>
<DIV1 TYPE="Scriptural citations">
<PB REF="3">
<Q><BIBL>EPHES. 4. 31, 32.</BIBL>
<P>Let all bitterne&s;&s;e, and wrath, and anger, and clamour, and evill &s;peaking, be put away from you, withall malice.</P>
<P>And be you kinde one to another, tender hearted, forgiving one another, as God for Chri&s;ts &s;ake hath forgiven you&punc;</P></Q>
<Q><BIBL>IONAH 3. 10. 4. 1.</BIBL>
<P>&mdash;&mdash;And God repented of the evill, that he &s;aid hee would doe unto them, and he did it not.</P>
<P>But it di&s;plea&s;ed Ionah exceedingly, and he was very angry.</P></Q>
<Q><BIBL>ZACHARIAH 1. 15.</BIBL>
<P>&mdash;&mdash;<HI>For I was but a little di&s;plea&s;ed, and they helped forward the affliction.</HI></P></Q>
<Q><BIBL>MATTHEW 18. 32, 33.</BIBL>
<P>&mdash;&mdash;I forgave thee all that debt, becau&s;e thou de&s;ire&s;t me.</P>
<P>Should&s;t thou not al&s;o have had compa&s;sion on thy fellow &s;er|vant, as I had pitty on thee.</P></Q>
<Q><BIBL>MATTHEW 6. 15.</BIBL>
<P>But if yee forgive not men their tre&s;pa&s;&s;es, neither will your Father forgive your tre&s;pa&s;&s;es.</P></Q>
</DIV1>
<DIV1 TYPE="list of witnesses">
<PB REF="4">
<HEAD>The names of tho&s;e Gentlemen and Per&s;ons of Honour and quality, who were witne&s;|&s;es in the tran&s;actions of the late triall, and atte&s;ted to their own particular truths.</HEAD>
<LIST>
<ITEM><HI>Sir</HI> Will. Balfoore,</ITEM>
<ITEM><HI>Lieutenant Col:</HI> Cliffton,</ITEM>
<ITEM><HI>Captain</HI> Rawlins,</ITEM>
<ITEM><HI>Mr.</HI> Antho. Nicholes.</ITEM>
<ITEM><HI>Mr.</HI> John A&s;h,</ITEM>
<ITEM><HI>Sir</HI> Wil. Waller, letter</ITEM>
<ITEM><HI>Sir</HI> Arthur Hazleriggs letter</ITEM>
<ITEM><HI>Major</HI> Homes,</ITEM>
<ITEM><HI>Cap: Lieutenant</HI> Nevell,</ITEM>
<ITEM><HI>Cornet</HI> Hooker,</ITEM>
<ITEM><HI>Sir</HI> John Horner,</ITEM>
<ITEM><HI>Captain</HI> Ty&s;on,</ITEM>
<ITEM><HI>Ma<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">or</HI> Archibald,</ITEM>
<ITEM><HI>Cap&punc;</HI> Samp&s;on,</ITEM>
<ITEM><HI>Cap.</HI> Taylor,</ITEM>
<ITEM><HI>Lieutenant Col.</HI> Birch,</ITEM>
<ITEM><HI>Cornet</HI> Langri&s;he.</ITEM>
<ITEM><HI>Mr.</HI> Hodges,</ITEM>
<ITEM><HI>Mr.</HI> Powel,</ITEM>
<ITEM><HI>Col:</HI> John Fines.</ITEM>
<ITEM><HI>Captain</HI> Husbands,</ITEM>
<ITEM><HI>Mr.</HI> Sam. Love,</ITEM>
<ITEM>John Tomes,</ITEM>
<ITEM><HI>With divers others and &s;ome of the Pro&s;ecutors witne&s;&s;es cro&s;&s;e examined.</HI></ITEM>
<ITEM><HI>Mr.</HI> Strood,</ITEM>
<ITEM><HI>Cap.</HI> Vaughan,</ITEM>
<ITEM><HI>Mr.</HI> Priskman.</ITEM>
</LIST>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="text">
<PB REF="4">
<HEAD>A Check to the Checker of Britannicus: <HI>OR</HI> The ju&s;t Vindication, &amp;c.</HEAD>
<P>_IT is a rule in the be&s;t of Sciences, That wee had not known &s;in but by the Law, and it will hold good in &s;ubordinate offences, and Civil Judicatories, where there is not &s;ometimes a po&s;itive guilt, but an enormity, or negative guilt, a want of due proportion, and Commen&s;uration to the letter of the Law; &s;uch is the con&s;titution of this crime, which is rather a crime a|gain&s;t the Prerogative or Supremacie, or Apicem of a Law, than any di&s;proportion or obliquity to the rea&s;on or equity of the Law, and may more naturally be tearmed a providentiall misfortune, an un&s;ucce&s;&s;efull Councell, &s;o as we had not taken it under any other notion, had not a Law told us it was a &s;in, a military tran&s;gre&s;&s;ion, there|fore we mu&s;t needs di&s;tingui&s;h here, and &s;tate the offence, for it is one thing to tran&s;gre&s;&s;e morally, another thing to tran&s;gre&s;&s;e martially; it is one thing to offend by in|du&s;try, by de&s;igne, by treachery, another thing to offend providentially, unfortunately, almo&s;t inevitably, and certainly had there beene any &s;uch po&s;itive guilt in this
<PB REF="5">
noble Per&s;onage, hee would not &s;o fa&s;t have pro&s;ecuted his own Judgement, but this is the excellent and impar|tiall Policy of Martiall Ju&s;tice, that it reaches <HI>adminima,</HI> to the lea&s;t errours; to the Atomes of all proceedings and actious; which is an exception from the com|mon Maxime in all Laws but it &s;elfe, and it is not more honourable, than &s;afe, that even mi&s;takes; and circum|&s;tances &s;hould be made Capitall, becau&s;e &s;uch a weight of Concernments turn often upon the&s;e Poles.</P>
<P>Therefore I &s;hall only advi&s;e, that wee argue him into no deeper a guilt than the Law hath done, and that wee mea&s;ure our own Judgments by that very Article which pronounced his, and I &s;hall de&s;ire only this, that all that read me, will as &s;eriou&s;ly and impartially con&s;ider the grounds and rea&s;ons of my re&s;ult, as I write both them and it. I am far from writing an Apology for a Delin|quent, and as far from writing a Delinquencie on the re|putation of a Ju&s;t per&s;on. I endeavour only at the right &s;tating of a crime, and the right &s;tating of the Ju&s;tice done upon that crime, under a cleer notion to others, as well as my &s;elfe, and though I &s;hall be as early as the fir&s;t at pro&s;ecuting a tran&s;gre&s;&s;ion again&s;t the publicke, yet I would be the la&s;t at pro&s;ecuting a tran&s;gre&s;&s;ion be|yond the publick, or beyond it &s;elf, and I hope we have &s;o much Candour and Ingenuity on this &s;ide of Oxford, as to make a difference of &s;uch as &s;eek fir&s;t to us for ju&s;tice upon them&s;elves, and tho&s;e upon whom wee our&s;elves &s;eek fir&s;t for Ju&s;tice, of tho&s;e that offend again&s;t the letter, and tho&s;e that offend again&s;t the equity of the Law, of tho&s;e that erre by misfortune, of tho&s;e that erre by de&s;igne, again&s;t tho&s;e that make their fault greater, by &s;triving to commit the le&s;&s;e, and &s;o go wrong in a mi&s;t of a Providentiall, and inevitable
<PB REF="5">
exigency, or extremity, and for &s;uch kinde of errours, which fell on the out&s;ide of the De&s;igne or Intention, the old Law had provided an Expiatory, o<GAP DESC="illegible" RESP="apex" EXTENT="1 letter"> City of Refuge, and though the Cities be ruined and gone, yet the Ju|diciall and Morall foundation &s;tands firme, and we have &s;till a &s;uper&s;tructure, Pardons of Cour&s;e and Reprieves; and they that undermine the&s;e, offend again&s;t the grand Charter of the Cities of Refuge, again&s;t the glory of Authority, and commit an offence on the other&s;ide of the Law, even again&s;t mercy; &amp; the be&s;t kinde of Prero|gative: and it is a kinde of putting Ju&s;tice out of joynt, a &s;praining it by an over-reach; and believe it Mercy in &s;ome Ca&s;es is the be&s;t execution of Ju&s;tice; and one at|tribute may thus be made to expound another: and thus the equity proves &s;ometimes to be better Law, than the Letter; and the Civilian and Canoni&s;t avow the excel|lency of Ju&s;tice to be &s;eated <HI>Candidiore &amp; benigniore legis interpretatione&punc;</HI> and if this were not, the Picture of Ju|&s;tice would want the be&s;t part of her Embleme, and wee &s;hould &s;ee her only with her Sword, but without her Scales; and this is that which is our be&s;t Argument now in our late proceedings&punc; and we part the Law thus with our Adver&s;aries; they take the Letter, and we the Equi|ty and f<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">irer &s;ide of it, and even in the be&s;t examples, where Ju&s;tice is in her pure&s;t Hieroglyphick; wee &s;hall finde this indulgency and di&s;pen&s;ation, and <HI>benignior interpretatio&punc;</HI> as in <HI>Iona hans</HI> Ca&s;e, who was condemned by the Martiall Law of <HI>Saul,</HI> for a crime at the tip of his rod, and yet of publike prejudice too; but the people, in &s;en&s;e of former &s;ervices and publicke acts, re&s;cue him, and cry out; Shall <HI>Ionathan</HI> die? and on the like ground, the people got a Reprieve for the Centurions &s;on, plead|ing to Chri&s;t that he was worthy, for whom hee &s;hould
<PB REF="6">
do this, <HI>For he hath loved their Nation;</HI> nor is it an act un&s;utable to our thoughts at this time, The Angel &s;tay|ing the &s;word of <HI>Abraham,</HI> from execution, becau&s;e there was an <HI>I&s;aac</HI> lay in the danger of the &s;troak.</P>
<P>But I now arrive at tho&s;e Arguments and Particulars, which per&s;waded mee, and in my pro&s;pect &s;eated his re|putation and integrity as cleer now; as before.</P>
<DIV2 N="1" TYPE="argument">
<HEAD>Argument I.</HEAD>
<P>WHereas it hath ever beene the de&s;igne of Delin|quency to walk out of the way of tryall and ex|amination, &amp; to make e&s;capes, and &s;eek &s;ubterfuges rather than appeals and provocations; This Per&s;on &s;ought out his Adver&s;aries, &s;ought for a Tribunal, for Ju&s;tice; and e&s;pecially that which had the &s;harpe&s;t edge and heavie&s;t &s;troak; who would not think it unrea&s;onable that any man of prudence &s;hould take &s;o much paines to con|demne him&s;elf, and to court an arraignment of his crime? Sure here was innocency in the <HI>Hyperbole,</HI> for I pre&s;ume a guiltine&s;&s;e dur&s;t not adventure to this height and pro|vocation of Ju&s;tice; nay &s;ometimes it is the Ca&s;e of In|nocency it &s;elf; and Integrity to be involved by &s;ome misfortune or de&s;igne into the Labyrinths of &s;ome &s;eem|ing Crimes, and it is even affraid of Appeals and Tri|bunals, lo&s;t Ju&s;tice &s;ee not &s;o cleerly through Informa|tions and te&s;timonies, as it &s;ees it &s;elfe; and therefore when I con&s;ider the Appeal of this Gentleman, I cannot but rai&s;e an Argument of eminent Integrity, which was it &s;eems &s;o di&s;ingaged and ab&s;olute; as carried him into the&s;e open per&s;ecutions of him&s;elf, when he might have withdrawne and &s;at &s;ecure from Cen&s;ure; and when the cloud had been over, appeared as &s;erene in his reputation again as before.</P>
</DIV2>
<DIV2 N="2" TYPE="argument">
<PB REF="6">
<HEAD>Argument II.</HEAD>
<P>THe &s;econd Argument which moves and per&s;wades me is the care, courage and, faithfulne&s;&s;e which this Colonell expre&s;&s;ed in his fir&s;t going to <HI>Bri&s;toll,</HI> by an or|der from his <HI>Excellencie,</HI> where, by the providence of God having di&s;covered a De&s;igne compounded of trea|chery within, and forces without; hee defeated and di&s;|appointed. The Con&s;piracy, and the &s;ucce&s;&s;e of this was &s;ealed to him by a Letter of publick Thanks from both Hou&s;es of Parliament; and his Integrity was &s;igned with this honorable Te&s;timony: and to this I mu&s;t adde his unce&s;&s;ant care and paines in fortifying and &s;trengthe|ning it with all things nece&s;&s;ary for a &s;iege, or enemy.</P>
</DIV2>
<DIV2 N="3" TYPE="argument">
<HEAD>Argument III.</HEAD>
<P>I Am further a&s;&s;ured from &s;uch his con&s;tant care, &amp; vi|gilancy to the field and out&s;ide of it being always pro|vident to prevent da~gers afar off, by cleering the coa&s;ts &amp; parts about; contributing not a little to the taking of Ma|lignant In&s;urrections in the very bud at &s;everall times &amp; in &s;everal places of <HI>Wilt&s;hire, Somer&s;et&s;hire, Dor&s;et&s;hire,</HI> with the I&s;le of <HI>Portland;</HI> with the relief of <HI>Gloce&s;ter</HI> too, at his fir&s;t comming to <HI>Bri&s;toll,</HI> and to all the&s;e his furni&s;hing Sir <HI>Wil. Waller</HI> from time to time with large &s;upplies of men, moneys, and Ammunition, having recruted him with above two thou&s;and foot, foure hundred hor&s;e, eight thou&s;and pound in money; and about a hundred barrels of powder, with bullet and match proportiona|ble; and to all this I mu&s;t adde his re&s;olutions at that extreme exigencie, when God was plea&s;ed to give the forces of that Noble Commander Sir <HI>Wil. Waller</HI> up to
<PB REF="7">
a di&s;comfiture; which expo&s;ed <HI>Bri&s;toll</HI> at that very time to &s;o much danger, and &s;uch an unavoidable hazard; that the Gentlemen them&s;elves which had lo&s;t the field, gave in <HI>Bristoll</HI> to the &s;ad Catalogue of being lo&s;t too, and thought it not tenible after &s;uch a &s;inew was cut, and the&s;e were men of &s;o much judgment, honour, and un|der&s;tanding, the very naming them is enough with mee: Sir <HI>William Waller,</HI> and Sir <HI>Arthur Ha&s;telrigg</HI> in a Letter under their owne hands; yet Colonel <HI>Fiennes</HI> though thus deve&s;ted, and de&s;erted, on all &s;ides, fir&s;t by that un|fortunate defeat, than by a totall declining of the Coun|ties, and many of the Deputy Lievtenants, and princi|pall Gentlemen thereof gathered up his re&s;olutions, care|fully collected the remayning &s;parks of that dying City, and of the whole We&s;t, &s;triving to blow life againe into them; hazarding his own per&s;on day and night, and lay|ing out him&s;elf in places of greate&s;t danger, as &s;ome of the Gentlemen in the Catalogue have witne&s;&s;ed, ingage|ing likewi&s;e his e&s;tate and credit for the taking up great &s;ums of money, for rai&s;ing and arming &s;ouldiers; that if he had thought it po&s;&s;ible, he might have pre&s;erved that City, which was of &s;o great importance to the Parlia|ment.</P>
</DIV2>
<DIV2 N="4" TYPE="argument">
<HEAD>Argument IV.</HEAD>
<P>THe next Argument is this, that the lo&s;&s;e of this City was &s;urely by a providentiall misfortune, and an in|capacitie in it &s;elfe, to be defended to extremity, and &s;ome other unavoidable exigences: For fir&s;t, hee could never rai&s;e men enough to make good the line, &s;o as the &s;ouldiers did not &s;tand within musket &s;hot one from ano|ther in &s;ome places, and not numerous enough in any place, being &s;tormed in nine places at once, and being li|able
<PB REF="7">
to be &s;tormed in all places, and promi&s;ing a fair &s;uc|ce&s;&s;e to the be&s;iegers at every a&s;&s;ault, (the workes being rather like to tho&s;e of a Quarter intrenched, then of a Town fortified very &s;light without any ditch at all in many places, and dry, narrow, and &s;hallow, where there was any, being but &s;even or eight foot broad, and foure or five foot deep, nor could he make any reliefe or re&s;erve without which, according to the maximes of war, it is impo&s;&s;ible to keepe any place, much le&s;&s;e &s;uch a weake and indefen&s;ible place, which indeed rather &s;eemed a Landskipt of fortification than one indeed, and reall&punc; and be&s;ides the weakne&s;&s;e of the Towne, the Ca&s;tle (which &s;hould have been the only re&s;erve and refuge in &s;uch a &s;upream extremity) was &s;o old and cra&s;ie, that the wals thereof were not likely as was depo&s;ed before the Coun|&s;ell of Warre to endure the &s;haking of great Ordinance, and was in as much danger to the violence within as without, and &s;o &s;urrounded with Churches and Steeples, and Hou&s;es; and &s;o commanded from them, that no &s;ouldier could &s;tand to his guard in any place nor doe his duty, but in continuall hazard to be rebuked to death by the enemy, nor could the Gunners &s;tand to their Ord|nance, but the enemy had the command of their backs within Musket or halfe Musket &s;hot; and &s;o weake and untenible in many other re&s;pects that it could not hold out three or foure days in the judgment of any Souldier, according to the de&s;cription therof given into the Coun|&s;ell of Warre upon oath; and though it had been more tenible, yet it neither commanded the Port, nor the Key, nor the Towne, and it was &s;o &s;ituate from the Line too, that within three or foure days it might have been &s;eclu|ded from any po&s;&s;ibility of Reliefe, if it had been wor|thy of a relieving, after the Town, and Shipping&punc; and
<PB REF="8">
trading thereof had been de&s;troyed, for which only it was worth pre&s;orving, and without which it was not &s;o con&s;iderable, as to burne all the other to a&s;hes for the &s;a|ving of it, or rather the reprieving it, for a few days lon|ger to the &s;ame de&s;truction, if not from them&s;elves, I yet from the enemy.</P>
</DIV2>
<DIV2 N="5" TYPE="argument">
<HEAD>Argument V.</HEAD>
<P>ANother Argument with me is, the concurrence of &s;ome particulars in his condition in that exigency: Fir&s;t want of men, the Garri&s;on being too wide for the Souldiers, and the Line too va&s;t a Circumference for &s;o &s;mall an Infantry, not being able to endure the violent &s;hakes of a numerous enemy as they were, the works &s;o large, &s;o weak, and &s;o weakly manned, much le&s;&s;e a &s;iege; as he mu&s;t needs have done, &s;uccours being &s;o remote and di&s;tant.</P>
<P>Secondly, want of a place of defence in any &s;ort teni|ble by the Rules of War, when the principall Rampart of the Towne was entred, and the enemy lodged within it, &s;everall Regiments of Hor&s;e and Foot.</P>
<P>Thirdly, want of obedience in &s;ome of his Officers, and a great part of his Souldiers, when the Line was en|tred, &s;o that he could not beat out the Enemy againe, or make any further re&s;i&s;tance, &s;ome of his Officers and Souldiers refu&s;ing his commands, and the greate&s;t part of his Souldiers de&s;erting their Colours, and divers of them running over to the Enemy; and refu&s;ing to make any further defence.</P>
<P>Fourthy, de&s;pair of &s;uccours. Sir <HI>William Wallers</HI> Ar|my being wholly ruined, and his Excellencies in &s;o weak
<PB REF="8">
and &s;ick a condition, which was known to Col. <HI>Fiennes</HI> before he entertained a parley.</P>
</DIV2>
<DIV2 N="6" TYPE="argument">
<HEAD>Argument VI.</HEAD>
<P>ANother &s;trong motive with me is his declining the government of the Towne, never undertaking to make good that place with the force hee found, or was ever able by his own endevour to rai&s;e in it, but on the contrary declared continually by his Letters and Me&s;&s;a|ges, that hee neither could nor would be an&s;werable for it, unle&s;&s;e certaine Propo&s;itions might be granted him which he could never obtain, and therefore de&s;ired &s;eve|rall times to be freed from the employment, yet hee was willing rather to part with his own Judgement and de|&s;ires, and &s;uffer them to be commanded in the &s;ervice by the Parliament and his Excellency, while hee continued there; and taking care that it &s;hould be furni&s;hed, and Ammunition for a defence or &s;iege, or rather that the reports of &s;uch preparations might keepe the enemy from entertaining a de&s;igne again&s;t it, being it was in it &s;elfe &s;o indefen&s;ible.</P>
</DIV2>
<DIV2 N="7" TYPE="argument">
<HEAD>Argument VII.</HEAD>
<P>ANother prevailing Argument with mee is the &s;ub|&s;tance and form of the &s;entence which is thus from the originall.</P>
<Q><TEXT LANG="eng">
<BODY>
<DIV1 TYPE="text">
<PB REF="9">
<HEAD>DECEMBER 29&punc; 1643. St. <HI>Albons.</HI></HEAD>
<HEAD TYPE="sub">The Honorable Councell of War being ful. and the Pro&s;ecutons Mr. <HI>Prinne</HI> and Mr. <HI>Walker</HI> being pre&s;ent, the &s;entence again&s;t Collonell <HI>Nathaniell Fiennes</HI> was pronounced by the Advocate, <HI>de &s;cripta,</HI> as followeth.</HEAD>
<P>COllonel Nathaniel Fiennes, you have beene arraigned &amp; convicted before this Honorable Councel, for &s;urrendring and delivering up of the Towne and Ca&s;tle of Bri|&s;tol, with the Forts, Maga&s;ines, Armes, Ammu|nition, victuals, and other things thereunto be|longing, and for not having held the &s;ame to the utmo&s;t extremity, according as by your du|ty you ought to have done, for which offence this Honourable Councell hath adiudged you to be executed, according to the tenor of the Article of War, by having your head cut from your body.</P>
<CLOSER>Copia vera</CLOSER>
<CLOSER><SIGNED>J&s;aac Dori&s;laus, <HI>Advocate of the Armie.</HI></SIGNED></CLOSER>
</DIV1>
</BODY>
</TEXT></Q>
</DIV2>
<DIV2 N="7" TYPE="argument">
<PB REF="9">
<HEAD>Argument VII.</HEAD>
<P>IT appears by this, that the Article of Warre is the hinge upon which this &s;entence only moves, here is no Concomitant expre&s;&s;ion of Cowardize or Treachery, &s;o as the guilt is externall, and not internall, a guilt of di&s;proportion and want of Commen&s;uration to the Article, and whereas there is this clau&s;e, That hee held not the &s;ame to the utmo&s;t extremity; that is according to the tenour of the Article, for extremity is here con&s;i|derable under a double notion; as extremity is common|ly under&s;tood and received: hee held it to the height of that notion, as I have cleerly remon&s;tranced, but as ex|tremity is received in a Martiall interpretation, relating to the very Article of War there, and only there hee is criminall, and upon this hee was condemned for not comming up to the height of that extremity&punc; and though the Martiall Ju&s;tice allows of no plea in that di&s;proportion, yet there is a morall equity to be con&s;ide|red here, which qualifies his not c<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">mming up to the la&s;t extremity, and this his Excellency con&s;idered in his par|don: Fir&s;t, he mu&s;t have burned the &s;econd City of the Kingdome to the ground, contrary to the con&s;tant pra|ctice and policy of War, to the principles and rules of the Parliaments Prote&s;tations and proceedings, and to all the violencies and villanies which are the &s;ad con&s;e|quences of an enraged Enemy entring &s;uch a City by force, having been exa&s;perated before by the lo&s;&s;e of a|bove a thou&s;and of their men, and among&s;t them foure Colonels and divers of quality; be&s;ides by &s;uch an act a con&s;iderable body of hor&s;e &amp; foot, mu&s;t nece&s;&s;arily have been broken, which by terms of competition might,
<PB REF="10">
and by the Articles&punc; were to be preferred for the &s;ervice of the Parliament, in a time when we all knew they had &s;o great need of men, Sir <HI>William Wallers</HI> Army being ruined, and his Excellencies very weak, and be&s;ides all this, many of the towne, re&s;olving to joyne with the <GAP DESC="illegible" RESP="apex" EXTENT="1 letter">nemy to prevent it, and having great opertu|nities to doe it in, in regard of the difficulties in making a retreate, &s;o as tho&s;e thinges inpartially con&s;idered, though they excu&s;e not the Colonell <HI>a toto&punc;</HI> yet a <HI>tanto,</HI> from tran&s;gre&s;&s;ing again&s;t the Article of warre, yet they do take off from the malignity, and degree of the Crime&punc; And it &s;eems a diviner Law had the greater influence upon the Colonels &s;oul at that time then the Law of war, &amp; he would not do &s;o much evill, that good might come thereof; and he was loath to &s;et up &s;uch a fire to the King|dome, and to light up the fir&s;t Beacon of De&s;olation, and Deva&s;tation to the countrey, and I cannot but &s;ay this, we &s;tand now upon more advantageous ground, and may now take a better pro&s;pect, and have a clearer Lant|skipt of the effects and con&s;equences, and inconvenien|ces, then hee could have at that time; it being an ea&s;ie thing to mi&s;take the pa&s;&s;age of Coun&s;els, and the faire&s;t landing-places of De&s;ignes in Exigencies, and Di&s;tracti|ons of that Nature; Though he did it not without ad|vice of his Coun&s;ell of warre too.</P>
<P>And for the Article of warre, it is the <HI>Summum Jus,</HI> and no que&s;tion but Lawes and Ordinances of warre have their Policy, as well as Equity, and there&punc; is an in|terpretative Ju&s;tice which they admit off, as in the ca&s;e of the late pardon after &s;entence, they are made and con|trived by that power which hath an eye to his Suprema|cie, in being able to di&s;pen&s;e, and qualifie the Ju&s;tice of that Law which <NOTE N="a" PLACE="marg">The&s;e are to authori<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">e you to print for the u&s;e of the Army, the Lawes and Or|d<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">nances of Warre, by me e&s;tabli&s;hed ESSEX, Novemb. 25. 1643.</NOTE> he makes him&s;elfe, for if the Letter
<PB REF="10">
did not admit of the&s;e &s;aire and mercifull interpretations, it were a killing Letter, and we know this State hath bin long in debate concerning the giving way to the Ju&s;tice of War, or mercifull Law, being almo&s;t afraid to admit of a Law, &s;o &s;harply pointed, but that the nece&s;&s;ity (which is the &s;upream Law) called for it.</P>
</DIV2>
<DIV2 N="8" TYPE="argument">
<HEAD>Argument. VIII.</HEAD>
<P>THE la&s;t Argument with me is, the pardon from his Excellency, which is not only an act of power, and grace, or illu&s;tration of the judgement, and &s;entence, and an honourable &s;heathing of the &s;word of Ju&s;tice, but it is rationall, and argumentative, and bottomed on cer|taine foundations, and principles, which I &s;hall onely draw forth like arrowes out of their owne quiver, and give them into your hands to levell as you plea&s;e.</P>
<DIV3 TYPE="pardon">
<HEAD>THE PARDON.</HEAD>
<P>VVHereas Colonell Nathaniel Fiennes late Go|vernour of the City of Bri&s;toll hath been que&s;tioned before a Coun&s;ell of war held in St. Albans, from the 14. day of December till the 23. of the &s;aid mo|neth, 1643. by William Pryn and Clement Walker for the &s;urrendring unto the Enemy, the &s;ayd City and Ca&s;tle of Bri&s;toll: And whereas the &s;ayd pro&s;ecutors them&s;elves during the &s;aid triall, have delcared that their meaning was not that the &s;aid Colonell had delivired up the &s;aid City by any premeditate malice or Intelli|gence with the Enemy.</P>
<P>And whereas the &s;aid Colonel hath bin ca&s;t by the &s;aid Coun&s;ell of war, only according to the letter of the Ar|ticle of the Lawes, and Ordinandes of war, becau&s;e he the &s;aid Colonell hath not held the &s;aid City, and Ca&s;tle
<PB REF="11">
of Bri&s;toll to extremity: And whereas the &s;aid Colo|nell hath been condemned by the &s;aid Coun&s;ell for this offence, &amp;c.</P>
<P>In con&s;ideration of the premi&s;&s;es, and of the excellent gifts, and endowments wherewith it hath plea&s;ed God to enable the &s;aid Colonell for other employments in the &s;ervice of this State, and in regard of my own experience and confidence I have of the &s;aid Colonels Integrity, and con&s;tant affection to the common cau&s;e of Religion Lawes and Liberty, which he hath given full te&s;timony of, in &s;undry negotiations entru&s;ted unto him by both Hou&s;es of Parlament and e&s;pecially in that negotiation with the Kingdome of Scotland, <HI>Anno Dom:</HI> 1641. And in re&s;pect of his courage and valour &s;hewed in divers &s;er|vices, and in particuler in regard of the good te&s;timony given to me by Sr. William Belfoor Leivtennant Gene|rall of the hor&s;e in the behalfe of the valorous carriage of the &s;aid Colonell in Kainton feild riding up to the ve|ry. Ordinance of the Enemy, with and neere the &s;aid Sir William Belfoore, I have by vertue of an Ordinance of both Hou&s;es of Parliament given and granted, and by the&s;e pre&s;ents I give and grant unto the &s;aid Colonell a free and full pardon of all manner of offences, errours, and over&s;ights committed in the &s;aid &s;urrender of the City and Ca&s;tle of Bri&s;toll, di&s;charging hereby the &s;aid Colonell from the-execution of the capitall puni&s;hment, impri&s;onment, re&s;traint, and likewi&s;e from all further impeachment, and pro&s;ecution concerning the &s;aid &s;ur|render.</P>
<CLOSER><DATELINE>ESSEX, Given under my hand and Seale, <DATE>the &s;ixt of <HI>Jan. 1643, in London.</HI></DATE></DATELINE></CLOSER>
</DIV3>
<DIV3 TYPE="section">
<PB REF="11">
<HEAD>The Argumentative Principles of this Pardon.</HEAD>
<P>FIr&s;t that the pro&s;ecuters them&s;elves during the &s;aid try all have declared that their meaning was not that the &s;aid Collonel had delivered up the &s;aid City by any premediate malice or intelligence with the enemy.</P>
<P><HI>This acquits him from all umbrages of Treachery, his Pro&s;ecutors (it &s;eemes) declining any &s;uch charge.</HI></P>
<P>2 That the &s;aid Colonell hath been ca&s;t by the &s;aid Coun&s;ell of War, only according to the Letter and Arti|cle of the Lawes and Ordinances of war.</P>
<P><HI>This argues him only guilty of a di&s;proportion of the Ar|ticle and Letter of the Law, to that ultimate, and &s;upream extremity, which the iu&s;tice of War exacts.</HI></P>
<P>3 In regard of the excellent gifts and endowments wherewith it hath plea&s;ed God to enable the &s;aid Co|lonell.</P>
<P>In regard of my own experience and confidence I have of the &s;aid Colonels Integrity, and con&s;tant affection to the common cau&s;e of Religion, Laws, Liberty.</P>
<P>Which he hath given full te&s;timony of in &s;undry ne|gotiations entru&s;ted unto him by both Hou&s;es of Par|liament.</P>
<P>And e&s;pecially in that negotiation with the Kingdom of Scotland, <HI>An.</HI> 1641.</P>
<P><HI>The&s;e are all &s;eals, and confirmations, and honorable testi|monies enough without any varni&s;h in their plain and noble a&s;&s;everation and atte&s;tatiou, from a per&s;on of &s;uch eminent quality and tru&s;t in this &s;tate and Kingdom, to ree&s;tate his re|putation againe, and his honour in our opinions and iudge|ments.</HI></P>
<P>4 E&s;pecially in that particular, in regard of the good
<PB REF="12">
te&s;timony given to me by Sir <HI>Wil. Balfoore,</HI> Lievtenant Generall of the Hor&s;e in his behalfe the valorous cari|age of the &s;aid Colonell in Keinton field, riding up to the very Ordnance of the Enemy with and neer the &s;aid Sir <HI>William Balfoore.</HI></P>
<P><HI>This di&s;charges our thoughts from all preiudices from all mi&s;takes that &s;ome uniu&s;tly conceived concerning his ro&s;olu|tion, he cannot be charged of cowardi&s;e, who charged &s;o vali|antly, and in the company and &s;ight of &s;o gallant a Comman|der as Sir</HI> Walliam Balfoore, <HI>who&s;e de&s;erts in our publike cau&s;e hath rai&s;ed him into an unque&s;tionable te&s;timony, and in di&s;putable reputation with us. But more of this anon.</HI></P>
<P>Having now given you a gener<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">ll and particular ac|count, and not concealed any thing which was Argu|mentative, &amp; powerfull upon my Judgement I &s;hall now treat with &s;ome Objections, and fairly di&s;&s;olve tho&s;e, and I hope by that time, others will be as well &s;atisfied, as my &s;elf.</P>
<P>Object. 1, <HI>Why did Collonel Fiennes endeavour &s;o earne&s;t|ly the triall of him&s;elfe? why was he &s;o bu&s;ie a<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">d active for a day of Audience, when he had made a &s;ufficient Apology to the hou&s;e of Commons, of which he was a member, and the Hou&s;e re&s;ted content with that.</HI></P>
<P><HI>An&s;w&punc;</HI> There were divers things printed which le|velled at his Integrity and Reputation, in the conduct of this bu&s;ine&s;&s;e, and the Malignants &s;ought by all meanes to foment the rumours; and increa&s;e the Calumnies, on purpo&s;e to make divi&s;ions and ruptures among&s;t us; and to draw us into &s;idings and parties, as they well knew a pro&s;ecution of this nature would &s;oon effect, Colonell <HI>Fiennes</HI> being one of tho&s;e intere&s;ts and relatious, as they knew him to be, and without que&s;tion &s;uch as the&s;e were branches and nerves of the late de&s;ignes for divi&s;ion
<PB REF="12">
which we all know, and though &s;ome of the well affect|ed party might &s;eeme to bear a &s;hare in the pro&s;ecutions, yet I look upon them under a better notion, as tho&s;e that were unhappily put on by the&punc; Artifice and underwork|ings of others, ayming (through mi&s;takes and prejudices too &s;uddainly received) at a publick &s;ervice, and this er|roneous and mi&s;guided activity, which (as is &s;aid of zeale) had been egood in a good thing had &s;o anticipa|ted and taken po&s;&s;e&s;&s;ion of the Judgments of many, that the Colonell was put upon a nece&s;&s;ity of cleering him|&s;elf, and bringing him&s;elf to a triall of this nature.</P>
<P>Obj. 2. <HI>But Col:</HI> Fiennes <HI>did give out, that he would make his Colours his winding &s;heete, and that he would lay his bones there, and di&s;pute every inch of it.</HI></P>
<P><HI>An&s;w.</HI> It is one thing what is &s;poken re&s;olvedly, and with a &s;erious and perticular intendment, another thing what is &s;poken, for publik ends, for animating and en|couraging Souldiers, for Souldiers and common people looks into their Commanders face, as they look into their Almanack for weather&punc; and there they hope to fore|&s;ee good or bad events and &s;ucce&s;&s;e, and he is not a wi&s;e Commander that hath clouds and ill weather in his countenance, and at that time, this Colonell did the like, for as it was depo&s;ed at the Coun&s;ell of War, the Gen|tlemen of the County, and among&s;t them &s;ome of the Deputy Lievtenants de&s;erted him, giving the City for lo&s;t. Yet in private where hee might be free with &s;uch a dangerous Con&s;equence of generall di&s;couragement&punc; he declared his Judgment, that there was no hope of defen|ding it, again&s;t that force after Sir <HI>Wil. Waller</HI> had lo&s;t his whole Army, and therein the &s;trength of his Garri&s;on, &amp; this was the opinion of all the Gentlemen who left the
<PB REF="13">
Town after Sir <HI>Wil. Wallers</HI> defeat, and their very depar|ture at that juncture of time was a &s;trong Argument.</P>
<P>Object. 3. <HI>But there are rumours &s;pread abroad as if there were &s;ome cowardi&s;e in the act of &s;urrendring.</HI></P>
<P><HI>An&s;w.</HI> I have &s;ufficiently cleered this I hope by two Honourable te&s;timonies of his Excellency, and Sir <HI>Wil|liam Balfoor,</HI> to the&s;e there were many other unque&s;ti|onable witne&s;&s;es, and &s;ome who were brought then by the Pro&s;ecutors them&s;elves, and <HI>Cro&s;se</HI> examined, that during the whole &s;iege he carried him&s;elf vigilantly, carefully, and indu&s;triou&s;ly and expre&s;&s;ed &s;uch re&s;olution and courage, that he hazarded his own Per&s;on, day and night, in the places of greate&s;t danger, though I could here not onely remember the&s;e particulars, but that of <HI>Keinton</HI> field, where he charged with Sir <HI>William Bal|foor,</HI> and that Regiment they were in, broke two Regi|ments of the Kings foot, and he was one of the next to Sir <HI>William</HI> when they charged up to the very Ordnance of the enemy, and killed the Canoneers as they lay un|der their carriages, and to this I could remember that at <HI>Worce&s;ter,</HI> when the forces being routed, he and his Bro|ther were the la&s;t Officers of Hor&s;e that came off the field; and he with Colonell <HI>Brown,</HI> Colonell of the Dragoons, made good the Bridge with &s;ome Dragoons, where they kept them from being all cut off.</P>
<P>Obje. 4. <HI>But it is reported that he wanted neither men nor Ammunition, to defend it again&s;t all the enemies power for three moneths together.</HI></P>
<P><HI>An&s;w.</HI> We mu&s;t know that it was proved at the Councell of Warre, that their was but fiftie Barrells of Powder left, and they had &s;pent fiftie in two dayes fight before; at <HI>Plimmouth</HI> they &s;pent fortie Barrells in &s;even
<PB REF="13">
hours fight, &s;o as this proportion was not able to hold out for &s;uch a time; and this is not fair to give &s;uch a large mea&s;ure of time, and &s;uch &s;cant mea&s;ure of Am|munition: We may &s;ee how di&s;proportionable reports may be, when they are ju&s;tly &s;urveyed, and for men, there was not quarter enough for defending the Line of four or five miles in length, and no re&s;erve at all, they mu&s;t fight, &s;tand, watch, continually without relief. Now how impo&s;&s;ible it is to keep men in continuall dutie, and with con&s;tant expence of Powder, for three moneths together, out of &s;o incon&s;iderable a &s;tock, both of men, and Powder, they mu&s;t judge who have been &s;o good at multiplying and &s;ub&s;tracting in reports of this nature; and are onely able to &s;upply the defects of their own &s;tories.</P>
<P>Obje 5. <HI>But it is further reported that at the entery into the Lyne, there were but 150 men that entred, and they &s;taid there a long time before they were &s;econded, and gave them|&s;elves all for deadmen, and might ea&s;ily have bin beaten out.</HI></P>
<P><HI>An&s;w.</HI> It was depo&s;ed that they were two or 300 that entered, none &s;pake of le&s;&s;e then two hundred, be|ing <HI>Wa&s;hingtons</HI> whole Regiment, and for giving them|&s;elves for dead men, it was &s;o farre from that, as when the hor&s;e that were placed where they entred, played the Jades, &amp; would not charge (for which Colonel <HI>Fiennes</HI> ac|cu&s;ed them) before Captain <HI>Nevill</HI> could come thither from the place where he guarded with his hor&s;e, there were &s;o many entred, and they had &s;o much life, as that they made his hor&s;e (though he did his part like a valiant man) fly to the Town Gate, and four Companies of foot came off from the Line, fearing the enemy would come upon their back and cut them of before they could recover the Town, &s;ome of them for ha&s;t running over
<PB REF="14">
the Water at the Key, be&s;ides the Gate of the Town. And this was the fir&s;t object that Colonell <HI>Fiennes</HI> met withall at the Gate, whereunto he ha&s;ted upon the fir&s;t adverti&s;ement of their entry; Captain <HI>Nevill</HI> &s;eeing their hor&s;e Regiments advanced to the breach before he was beaten of.</P>
<P>Object. 6. <HI>It is reported that Colonell</HI> Fienues <HI>out of ambition di&s;placed Colonell</HI> E&s;&s;ex, <HI>and &s;ent him up pri&s;oner upon a pretended &s;u&s;pition, onely to thru&s;t him&s;elf into the place of Governour, and yet denyed that Colonell</HI> E&s;&s;ex <HI>was Governour, or that him&s;elf was Governour.</HI></P>
<P><HI>An&s;w.</HI> Tho&s;e reports are purpo&s;ely &s;pread abroad to the &s;ame end that all the re&s;t, <HI>Fortiter calumniare aliquid haerebit,</HI> &s;ome will be incen&s;ed as Colonell <HI>E&s;&s;ex</HI> and his friends, and &s;ome will hereby be deceived to the pre|judice of Colonell <HI>Fiennes,</HI> who know not the truth herein, and then the end aymed at is obtained. The truth was thus, Their was a Jealou&s;y ca&s;t upon Colo|nell <HI>E&s;&s;ex</HI> at that time for holding corre&s;pondencie with Prince <HI>Rupert;</HI> but Colonell <HI>Fiennes</HI> in his Letters did expre&s;&s;e, that he hoped he might be cleer of any &s;uch intention, although (having received an Order from my Lord Generall to &s;end him up to him) he &s;aw cau&s;e e|nough not to dare to di&s;obey that Order, finding how things were carried in the Town, to the di&s;content of all the well affected partie of the Citie, in&s;omuch, that they were leaving the Citie before he came thither: And be&s;ides this, the fears and jealou&s;ies were &s;uch, and the complaints both from <HI>Bri&s;tol,</HI> and here in Town &s;o many, that it is well known before ever Colonell <HI>Fiennes</HI> was thought of to be &s;ent down thither, it was re&s;olved by my Lord Generall, that Colonell&punc; <HI>E&s;&s;ex</HI> &s;hould be &s;ent for away &s;o &s;oon as it might be done &s;afelie, and Ma&s;ter
<PB REF="14">
<HI>John Sedgwick</HI> the Mini&s;ter now dead, went to <HI>Wind&s;or</HI> to my Lord Generall (as is known to &s;ome who can witne&s;&s;e it) to be imployed down to <HI>Bristol</HI> upon that errand, and therefore Colonell <HI>E&s;&s;ex</HI> hath no cau&s;e to be &s;o &s;tirred up again&s;t Colonell <HI>Fiennes,</HI> for obeying my Lord Generall in that command, which was re&s;olved to be executed before he was thought of for it; and it is al&s;o true, that Colonell <HI>E&s;&s;ex</HI> had no Commi&s;&s;ion to be Go|vernour, nor Colonell <HI>Fiennes,</HI> for the greate&s;t part of the time; and in that time, he &s;aid, he was not Gover|nour, no more then Colonell <HI>E&s;&s;ex,</HI> neither had he a Commi&s;&s;ion untill two of Colonell <HI>Pophams</HI> Captains drew up their Companies again&s;t him in the &s;treets, and told him they would not obey him, becau&s;e he had not a Commi&s;&s;ion. And after that mutiny a Commi&s;&s;ion was &s;ent him and not before; and he did acknowledge, that after that time, he had a Commi&s;&s;ion. The&s;e things are urged and made u&s;e of withall &s;ini&s;ter con&s;truction and amplification, onely to ca&s;t <HI>odium</HI> upon Colonell <HI>Fiennes</HI> by deceiving others in not relating the things truely, as they were &s;poken, the times ob&s;erved and di&s;tingui&s;hed.</P>
<P>Object. 7. <HI>But is it not any diminution to the Parlia|ment, or Councell of Warre, or Lord Generall, that it is re|ported how he was cleered from the Attainder of Treachery, or Cowardize, and pardoned.</HI></P>
<P><HI>An&s;w.</HI> No; For fir&s;t the Councell of War did not go at all upon the Articles of Treachery, or Cowardize, &s;eeing them &s;o farre from being proved, that they were di&s;proved, and the Colonell was acquitted from the im|putation, and they proceeded onely upon the Letter of the Article of Warre, as is apparant by the Sentence, and Pardon, for not holding it to the utmo&s;t extremity which could not have been done, without burning it, as was
<PB REF="15">
depo&s;ed by a Colonell of Noble qualitie, and could not have been kept longer then two dayes.</P>
<P>And for he L. General, it were a que&s;tionable pre&s;ump|tion to &s;ay that he &s;hould have power to hang and not to pardon&punc; that he could onely kill, and not &s;ave, and &s;o take of the <HI>Apicem</HI> or &s;upreme&s;t of his power, the flower and noble&s;t prerogative of his Authoritie, which Au|thoritie he &s;ufficiently and cleerly draws forth from his Commi&s;&s;ion given him by Parliament; and it is the honour of his Power to produce an extraordinarie act in &s;uch a pretious extremitie, as it is the glory of a diviner power to act a miracle, when no le&s;&s;e will &s;erve. And having now weighed the proceedings of this Colonell at the Beam of the Article of Warre, and then pardoning, it is no other then a &s;ubordinate redemption, and a &s;alva|tion of a lower form, and an act which the be&s;t (I &s;up|po&s;e) do not grieve at. And for the honourable Hou&s;e of Commons, they never did refer the impeachment put in by the pro&s;ecutors to my Lord Generall as an accu&s;a|tion of theirs, or their approving again&s;t Colonell <HI>Fiennes,</HI> but for his Vindication again&s;t a &s;lander upon his de&s;ire, which appeared in this, that that honourable Synod was moved at the impeachment put in, and refer|red it to be con&s;idered of by a Committee, whether it were not a breach of priviledge, I remember now the ca&s;e of the Atturney <HI>Herbert,</HI> bringing in an impeach|ment again&s;t the five Members which was taken as a deep offence, for we mu&s;t not think that the doors of that high Court &s;tand open to any extrajudicall or Forraign proceeding, but onely to a Parliamentary, to their own naturall and proper cour&s;es, and wayes of tryall.</P>
<P>Obj. 8. <HI>But is it fit the execution of this &s;entence &s;hould be &s;o &s;lightly pa&s;&s;ed over, will it not be an occa&s;ion of tradu|cing a &s;ignall pre&s;ident, and dangerous in the&s;e perillous times.</HI></P>
<P><PB REF="15"><HI>An&s;w.</HI> No, for extraordinaries are no pre&s;idents nor rules to any, and the pardon is not beyond Col. <HI>Fiennes;</HI> and further, we mu&s;t di&s;tingui&s;h and weigh offences, and not pro&s;ecute, as if there were no difference, nor degrees, nor aggravations, nor diminutions in crimes. Fir&s;t, it appears, that this Gentleman could onely be touched by the Letter of the Article of War, for not holding it to extremitie, and even for that was acquitted too, by the mo&s;t ancient and experienced Souldiers, he pleading, that he thought it fitter to &s;ave the Citie of the Kingdom, then to burn it, which he mu&s;t have done, whereas the Parliament might take it again, if &s;o pre&s;erved; and here we may remember &s;omething for illu&s;tration, Let us look back at <HI>Exceter?</HI> Were the works or the principall Rampier taken, as at <HI>Bri&s;toll;</HI> was it be&s;ieged by 12000 Souldiers; No&punc; Onely by a Sherif and a <HI>po&s;&s;e comitatus,</HI> for a long time, yet one of the &s;tronge&s;t Cities in <HI>Eng|land,</HI> as the <HI>Devon&s;hire</HI> Gentlemen &s;ay; nay further, was it reduced to that extremitie in the Article; was the Citie burnt to keep a &s;trong work, Fort, or place in it; what were the conditions upon which it was &s;urrendred.</P>
<P>Let us look at <HI>Lincoln,</HI> was the principall Rampier there entred: Was the Walls of the Citie battered&punc; or the Walls of the Clo&s;e a much &s;tronger retreat then the old rotten Ca&s;tle of <HI>Bri&s;toll,</HI> was not that Citie with the Ordnance, Ammunition, Victuall, and pri&s;oners left, when no enemy was near it by twelve Miles, and the ene|my entered not into it till two dayes after&punc; Here was no Citie reduced to utmo&s;t extremitie, no Citie burnt to keep the Clo&s;e, and now we &s;ee happily reduced into the Parliaments hands again, and yet no impeachment, nor &s;entence, nor any &s;ignall pre&s;ident traduced.</P>
<P>So for <HI>Gainsborrough,</HI> were either the works taken, or forced, and yet delivered upon compo&s;ition, and the
<PB REF="16">
Parliament now repo&s;e&s;&s;ed of it, and yet no cowardice in the&s;e, nor treachery; it &s;eems all the&s;e pre&s;idents were never thought &s;ignall, the Gentlemen never que&s;tioned, but &s;till imployed, nor do I name the&s;e in any obliquitie, but to &s;hew that we had Cities delivered and &s;urrendred into the enemies hand; and yet no &s;uch noti&s;e, no &s;uch complaints, no &s;uch aggravations, no &s;uch pro&s;ecuti|ons, no &s;uch markes of treachery or cowardize upon them. And though I am loath to go for Ju&s;tice to <HI>Ox|ford,</HI> and to &s;eek pre&s;idents in the enemies Tents; yet the Ju&s;tice of Warre is there too.</P>
<P>Was not Hereford as well ptovided within of men to defend, as the be&s;iegers to a&s;&s;ault without, yet delivered without conditions into mercy, the Commanders never que&s;tioned, &s;till u&s;ed, incouraged, employed.</P>
<P>Was not Reading (though Garri&s;on'd with 4500 foot and 500 hor&s;e) the Army without not &s;o many as before Bri&s;toll &s;uccours at hand, yet &s;urrendered.</P>
<P>The Commander <HI>Fielding</HI> a &s;ouldier (condeuined in|deed) (onely to boy up the reputation of the other &s;ide, le&s;thall &s;hould disband) yet not executed, and &s;o far from being laid a&s;ide, that he is &s;till there and em|ployed <HI>Bri&s;toll</HI> not &s;o well to be defended with double the number of men, yet had but &s;eventeen hundred foot, and 300 hor&s;e and the mo&s;t part of them raw men, raked up in the &s;treets.</P>
<P>To this we may add Malmesbury, delivered up to Sir <HI>Wil, Waller,</HI> who te&s;tified of it in his Letter, that is was the &s;tronge&s;t inland piece in <HI>England,</HI> where there was no want of men to defend it and Sir <HI>Wil. Waller</HI> ready ther|upon to leave it, he having not &s;o many men without it to a&s;&s;ail it, then there were within it, yet <HI>Lunsford</HI> a good Souldier delivered it up without conditions to mercy, who was afterward employed in command, not laid a|&s;ide&punc;
<PB REF="16">
but commanded at <HI>Bri&s;toll,</HI> where he was &s;lain.</P>
<P>The like at <HI>Higham</HI> Hou&s;e, more within it, then a&s;&s;ai|led it, yet delivered up to mercie, none laid a&s;ide for it they know how to make better u&s;e of their Cards, then to fling them away for one lo&s;t game.</P>
<P>In a word, we &s;ee Cities and Townes delivered up and &s;urrendred upon compo&s;ition, and yet fall &s;hort of the ju&s;tice of the Article of War too, and of the utmo&s;t ex|tremitie, and this we may read both in our own practice, and our enemies, and yet no &s;tain of Cowardize or Trea|chery, no traducing of any &s;ignall pre&s;ident, not pre&s;&s;ed, nor pro&s;ecuted, nor aggravated with the circum&s;tances of perillous times, the Gentlemen and Commanders&punc; (as divers of them well de&s;erve) honoured, employed, pre|ferred, and mu&s;t this Colonell &s;uffer under the &s;entence of ju&s;tice irrecoverably, irrepairbly? is the judgement of our Courts like that of the <HI>Medes</HI> and <HI>Per&s;ians</HI> ir|repealable, mu&s;t all former de&s;erts and eminencies, a con|juncture of &s;o many vertues be all intombed in a bad &s;uc|ce&s;&s;e, &s;hall errors be writ in Marble, and de&s;erts in &s;and&punc; &s;hall &s;o noble a Family that hath laid &s;uch ingagement upon the publick, that hath boyed up this State and Re|ligion in the times when their were &s;uch overflowings of Prerogative and poperie be now laid a&s;ide? &s;hall wee think the right &s;tating of an offence to be a traducing of any &s;ignall pre&s;ident? or an act of mercie and pardon to be a &s;leight pa&s;&s;ing over a crime, when as ju&s;tice hath had a free cour&s;e, in a free triall: and a pardon granted, with a cleer Declaration of the rea&s;ons and cau&s;es, I remember <HI>Jonah,</HI> when he impeached and pronounced &s;entence on the <HI>Ninivites,</HI> and God afterwards pardoned them, <HI>Ionah</HI> was very angry he thought (it &s;eems) if he came off &s;o cleer from the &s;entence, they &s;hould not come off &s;o cleer in the reputation of a Prophet, but I have done, and wi&s;h onely that the&s;e few and plaine Expre&s;&s;ions may be
<PB REF="17">
read and received with the &s;ame candor and ingenuity they are writ, for I hope I have fairly publi&s;hed, and not painted the truth.</P>
</DIV3>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Certain Queries very con&s;iderable, and of p<GAP DESC="illegible" RESP="UOM" EXTENT="3+ letters">ck concern|ment touching the pro&s;ecution and pro&s;ecutors Col. <HI>Nathaniel Fiennes.</HI></HEAD>
<P N="1">1 WHether the pro&s;ecutors of Colonel <HI>Nathaniel Fiennes</HI> be wittingly or ignorantly put on by &s;ome Malignant and Je&s;uiticall &s;pirits to foment Divi&s;i|ons by pro&s;ecuting one, of his intere&s;ts and relations as affairs &s;tand now, and &s;o to &s;tir up parties and &s;idings (if po&s;&s;ible) in this juncture of time.</P>
<P N="2">2 Whether the pro&s;ecuting of his Excellencies pardon, with &s;uch &s;leightings and reproaches from the pro&s;ecu|tors, both in their late Petition and Pamphlet, be not of dangerous con&s;equence to the publick, and the ca&s;ting a bone betwixt the Parliament and his Excellencie, and &s;o to promote Divi&s;ions, whether ought this De&s;igne to be enquired into.</P>
<P N="3">3 Whether the pro&s;ecutors doe not make u&s;e onely of the honourable name of the Parliament, and Lord Ge|nerall, and the Coun&s;ell of Warre to &s;ave and &s;hadow their own names, and reputations the better, by weaving their own particulars into tho&s;e univer&s;all notions, and publick ingagements, to make their own p<GAP DESC="illegible" RESP="apex" EXTENT="1 letter">&s;&s;e better.</P>
<P N="4">4 Whether the pro&s;ecutors owne intere&s;t and ingage|ments and reputation, be not the chief motive of this their pro&s;ecution, becau&s;e they affirme in their late peti|tion, that his owne private &s;ummons and provocations onely ingaged them to the triall, &amp; they were involun|tarily engaged and why have they let &s;o many other pla|ces of publick concernment&punc; which have been &s;urrendred pa&s;&s;e unque&s;tioned, and the Governours and Command|ers thereof who are yet imployed and intru&s;ted for the publick, and why doe they ever and anon intrude a Re|membrance
<PB REF="17">
of them&s;elves and their de&s;erts, placing their own names under the notion of petitioners before either the Parliament, or Lord Generall, or Councell of War, as appears in the clau&s;es of their la&s;t Petition.</P>
<P N="5">5 Whether it be not an in&s;ufferable in&s;olencie for any man to tax the hou&s;e of Peers, for what they have done, and to call them to accompt for leaving Ma&s;ter <HI>Prynne</HI> out of the bill for Auditors, and que&s;tioning any of them for having a Negative or affirmative Vote in that Hou&s;e as is done in the <HI>Check,</HI> and hath he not in this and other things lately violated the Priviledges of Parliament as dangeru&s;ly, and in as high a degree as hath been done by any this Parliament.</P>
<P N="6">6 <HI>Whether there is not a va&s;t difference betwixt the</HI> Straf|fords <HI>Ca&s;e</HI> and <HI>Col. Fiennes, Strafford, being attainted and executed for overthrowing the Lawes of our Kingdome for introducing Popery into our Religion, for &s;etting up Iniu&s;tice, Tyranny and oppre&s;sion for endevouring to engage two King|domes in a bloudy war, and all this on purpo&s;e, with all po&s;si|ble Artifice and De&s;igne, and this Col.</HI> Fiennes <HI>who had ever had the reputation of godline&s;&s;e, of &s;erving the State very happily and advantageou&s;ly before in &s;everall publick employ|ments, till this unfortunate lo&s;&s;e of Bristoll, though proved to be only a di&s;proportion to tho Article of War, a misfortune by con&s;equence, not at all by any de&s;igne or complot with the e|nemy.</HI></P>
<P N="7">7 Whether the pardoning of this Collonel can be of &s;uch danger to the publike as the pro&s;ecutors would make us believe, &s;eeing it is an extraordinary act, and grounded upon extraordinary rea&s;ons, and eminent de&s;erts, as his Excellencie makes appear, and &s;o none can promi&s;e or a&s;&s;ure them&s;elves of any &s;uch indulgence or pardon which is a meere arbitrary act, and &s;o cannot en|courage
<PB REF="18">
them&s;elves to any treacherous act upon any in|fallible ground, nay rather the contrary, may they not rather &s;uppo&s;e that the indulgencie or mercie is now pa&s;|&s;ed away upon extraordinary grounds, and that any &s;uch expectation will be vain, and too con&s;picuou&s;ly dange|rous, and &s;o nothing but execution to bee expected and acted, like <HI>E&s;ay</HI> who coming too late, when the ble&s;&s;ing was pa&s;&s;ed upon <HI>Jacob,</HI> could not obtain it again, though he &s;ought it carefully with teares.</P>
<P N="8">8 Whether the Col: <HI>Fiennes</HI> &s;uffering to expiate the &s;ufferings of others, bee a ju&s;t ground, &s;eeing that upon &s;uch a principle, every Governour or Commander in chiefe may be demanded upon every unfortunate action that hath any &s;ad con&s;equence attending it, and whither hath not the Collonel &s;uffered aboundantly, both in his credit by mi&s;-reports and Pamphlets, and by the unfor|tunate &s;urrender it &s;elfe, and in his life by hazarding both his per&s;on there, and &s;ince to a trvall and condemnation.</P>
<P N="9">9 Whether one of the Pro&s;ecutors did not penne the <HI>Check</HI> him&s;elfe, becau&s;e there is &s;uch larding his own de|&s;erts, and whether did he not penne this very clau&s;e: Mr. <HI>Willam Prinne</HI> appointed an Auditor for the grand Con|ge, de&s;erted accounts of the Kingdome cha&s;ed out, and whether is it not printed at the Pro&s;ecutors Pre&s;&s;e.</P>
<P N="10">10 Whether one may not &s;uffer martyrdome, and endure publike &s;ufferings, and pillowrings, and further, give their bodies to be burned, &amp; yet want charity, whe|ther is not the holy Scripture plain for this or no? and whither would not this be taken into &s;ad and &s;erious con|&s;ideration by the Pro&s;ecutors?</P>
<P N="11">11 Whether is it &s;uch gro&s;&s;e flattery and prevarica|tion in <HI>Britannicus,</HI> mode&s;tly&punc; and in three or foure lines, to name the vertue of a Gentleman, wel known, and repu|ted before, though now pro&s;ecuted beyond mercie, to
<PB REF="18">
blood and death, whither is not rather a good Chri&s;tian advice to the pro&s;ecutors an excellent morall, a godly admonition.</P>
<P N="12">12 Whether is it not a piece of great di&s;&s;ervice to this Kingdome, and a great &s;atisfaction to all Malignants, and a great Courte&s;ie and encouragement to the vain Pamphlet <HI>Aulicus,</HI> to ca&s;t any &s;uch checks and a&s;per&s;ions upon <HI>Britannicus,</HI> and whither hath not the author of it of late been in the Country at Oxford with <HI>Aulicus</HI> or or no, or received &s;ome intimations from Court, or bribe if he be a Lawyer, to write again&s;t <HI>Britannicus</HI> whom all the well affected judge to have writ mo&s;t im|partially of the publike affairs, and to have undeceived and di&s;abu&s;ed the people, as much as any that hath come forth, by being &s;erious with the &s;adder judgements, and more plea&s;ant with the &s;anguine, taking downe the tra|ver&s;e worke of the moderne machaivelli&s;me, and whither doth he not de&s;erve a good reward, and encouragement from the State for this &s;ervice?</P>
<P N="13">13 The la&s;t Querie is this, Whether it will plea&s;e the Malignants or well affected party be&s;t, to &s;ee us pro|&s;ecute any of our own party, &amp; pulling of the blo&s;&s;omes from our own trees, which have flouri&s;hed &s;o long in this State and Church, onely becau&s;e &s;ome of the fruit hath been ca&s;ually and unfortunately blown off, and be|cau&s;e there is not that fruit at all times of the year which we expect.</P>
<P>I will conclude with Mr. <HI>Prinues</HI> own words &s;poken at the Councell of War before many witne&s;&s;es of unque&s;ti|onable or edit. They were the&s;e.</P>
<P>My meaning is not in &s;aying Bri&s;tol was traiterou&s;ly and cowardly delivered into the enemies hands, that Col: <HI>Fiennes</HI> is a Traitor or hath done this out of any preme|ditate malice, or intelligence with the enemie, or that he
<PB REF="19">
is a coward or hath done any cowardly act, either hereto|fore in other places, or during this Siege, but onely in this one individuall act of &s;urrendring the Towne before it was reduced to utmo&s;t extremity. But the&s;e words traiterou&s;ly and cowardly mu&s;t be u&s;ed in the language of the Law in an impeachment, as felony mu&s;t be u&s;ed in an indictment, and therefore it is that I u&s;e them. The&s;e words he u&s;ed, or fully to this effect, as will be depo&s;ed by the&s;e Gentlemen.</P>
<LIST>
<ITEM>M. <HI>Iames Finnes,</HI></ITEM>
<ITEM>M. <HI>Thomas Earle,</HI></ITEM>
<ITEM><HI>two Members of the Hou&s;e of commons,</HI></ITEM>
<ITEM>M. <HI>Iohn Fiennes,</HI></ITEM>
<ITEM><HI>Cap. Tho. Temple,</HI></ITEM>
<ITEM><HI>Lievtenant Edward Scotton,</HI></ITEM>
<ITEM><HI>M. Hen. Pitt,</HI></ITEM>
<ITEM>M: <HI>Samuel Love of Bri&s;toll,</HI></ITEM>
</LIST>
<P>Let all the world judge whether in his Pamphlet which hee &s;preads abroad (onely to &s;tir up the people) he would have men thus under&s;tand him, when he &s;o often exclaims of Tron, and the mo&s;t traiterous and coward|ly &s;urrender Bri&s;tol.</P>
</DIV2>
<TRAILER>FINIS.</TRAILER>
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
