A check to the checker of Britannicus: or, The honour and integrity of Collonel Fiennes, revived, re-estated, and cleared from certain prejudices and mistakes, occasioned by late mis-reports.: The proceedings of the honourable Councell of War, according to the article of war justified. The pardon of his Excellencie the Lord Generall Essex asserted, and the grounds of it declared, and presented to the consideration of all. With certain considerable queries of publike concernement. Britannicus for his eminent service to this cause, Parliament, and kingdome, encouraged and vindicated from a late aspertion, in this occasion by a grose, seditious, and abusive pamphlet, called, a check.

A Check to the Checker of Britannicus: OR The just Vindication, &c.

IT is a rule in the best of Sciences, That wee had not known sin but by the Law, and it will hold good in subordinate offences, and Civil Judicatories, where there is not sometimes a positive guilt, but an enormity, or negative guilt, a want of due proportion, and Commensuration to the letter of the Law; such is the constitution of this crime, which is rather a crime a∣gainst the Prerogative or Supremacie, or Apicem of a Law, than any disproportion or obliquity to the reason or equity of the Law, and may more naturally be tearmed a providentiall misfortune, an unsuccessefull Councell, so as we had not taken it under any other notion, had not a Law told us it was a sin, a military transgression, there∣fore we must needs distinguish here, and state the offence, for it is one thing to transgresse morally, another thing to transgresse martially; it is one thing to offend by in∣dustry, by designe, by treachery, another thing to offend providentially, unfortunately, almost inevitably, and certainly had there beene any such positive guilt in this

noble Personage, hee would not so fast have prosecuted his own Judgement, but this is the excellent and impar∣tiall Policy of Martiall Justice, that it reaches adminima, to the least errours; to the Atomes of all proceedings and actious; which is an exception from the com∣mon Maxime in all Laws but it selfe, and it is not more honourable, than safe, that even mistakes; and circum∣stances should be made Capitall, because such a weight of Concernments turn often upon these Poles.

Therefore I shall only advise, that wee argue him into no deeper a guilt than the Law hath done, and that wee measure our own Judgments by that very Article which pronounced his, and I shall desire only this, that all that read me, will as seriously and impartially consider the grounds and reasons of my result, 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 Just person. I endeavour only at the right stating of a crime, and the right stating of the Justice done upon that crime, under a cleer notion to others, as well as my selfe, and though I shall be as early as the first at prosecuting a transgression against the publicke, yet I would be the last at prosecuting a transgression be∣yond the publick, or beyond it self, and I hope we have so much Candour and Ingenuity on this side of Oxford, as to make a difference of such as seek first to us for justice upon themselves, and those upon whom wee ourselves seek first for Justice, of those that offend against the letter, and those that offend against the equity of the Law, of those that erre by misfortune, of those that erre by designe, against those that make their fault greater, by striving to commit the lesse, and so go wrong in a mist of a Providentiall, and inevitable

exigency, or extremity, and for such kinde of errours, which fell on the outside of the Designe or Intention, the old Law had provided an Expiatory, o•• City of Refuge, and though the Cities be ruined and gone, yet the Ju∣diciall and Morall foundation stands firme, and we have still a superstructure, Pardons of Course and Reprieves; and they that undermine these, offend against the grand Charter of the Cities of Refuge, against the glory of Authority, and commit an offence on the otherside of the Law, even against mercy; & the best kinde of Prero∣gative: and it is a kinde of putting Justice out of joynt, a spraining it by an over-reach; and believe it Mercy in some Cases is the best execution of Justice; and one at∣tribute may thus be made to expound another: and thus the equity proves sometimes to be better Law, than the Letter; and the Civilian and Canonist avow the excel∣lency of Justice to be seated Candidiore & benigniore legis interpretatione▪ and if this were not, the Picture of Ju∣stice would want the best part of her Embleme, and wee should see her only with her Sword, but without her Scales; and this is that which is our best Argument now in our late proceedings▪ and we part the Law thus with our Adversaries; they take the Letter, and we the Equi∣ty and f••irer side of it, and even in the best examples, where Justice is in her purest Hieroglyphick; wee shall finde this indulgency and dispensation, and benignior interpretatio▪ as in Iona hans Case, who was condemned by the Martiall Law of Saul, for a crime at the tip of his rod, and yet of publike prejudice too; but the people, in sense of former services and publicke acts, rescue him, and cry out; Shall Ionathan die? and on the like ground, the people got a Reprieve for the Centurions son, plead∣ing to Christ that he was worthy, for whom hee should

do this, For he hath loved their Nation; nor is it an act unsutable to our thoughts at this time, The Angel stay∣ing the sword of Abraham, from execution, because there was an Isaac lay in the danger of the stroak.

But I now arrive at those Arguments and Particulars, which perswaded mee, and in my prospect seated his re∣putation and integrity as cleer now; as before.

Argument I.

WHereas it hath ever beene the designe of Delin∣quency to walk out of the way of tryall and ex∣amination, & to make escapes, and seek subterfuges rather than appeals and provocations; This Person sought out his Adversaries, sought for a Tribunal, for Justice; and especially that which had the sharpest edge and heaviest stroak; who would not think it unreasonable that any man of prudence should take so much paines to con∣demne himself, and to court an arraignment of his crime? Sure here was innocency in the Hyperbole, for I presume a guiltinesse durst not adventure to this height and pro∣vocation of Justice; nay sometimes it is the Case of In∣nocency it self; and Integrity to be involved by some misfortune or designe into the Labyrinths of some seem∣ing Crimes, and it is even affraid of Appeals and Tri∣bunals, lost Justice see not so cleerly through Informa∣tions and testimonies, as it sees it selfe; and therefore when I consider the Appeal of this Gentleman, I cannot but raise an Argument of eminent Integrity, which was it seems so disingaged and absolute; as carried him into these open persecutions of himself, when he might have withdrawne and sat secure from Censure; and when the cloud had been over, appeared as serene in his reputation again as before.

Argument II.

THe second Argument which moves and perswades me is the care, courage and, faithfulnesse which this Colonell expressed in his first going to Bristoll, by an or∣der from his Excellencie, where, by the providence of God having discovered a Designe compounded of trea∣chery within, and forces without; hee defeated and dis∣appointed. The Conspiracy, and the successe of this was sealed to him by a Letter of publick Thanks from both Houses of Parliament; and his Integrity was signed with this honorable Testimony: and to this I must adde his uncessant care and paines in fortifying and strengthe∣ning it with all things necessary for a siege, or enemy.

Argument III.

I Am further assured from such his constant care, & vi∣gilancy to the field and outside of it being always pro∣vident to prevent dāgers afar off, by cleering the coasts & parts about; contributing not a little to the taking of Ma∣lignant Insurrections in the very bud at severall times & in several places of Wiltshire, Somersetshire, Dorsetshire, with the Isle of Portland; with the relief of Glocester too, at his first comming to Bristoll, and to all these his furnishing Sir Wil. Waller from time to time with large supplies of men, moneys, and Ammunition, having recruted him with above two thousand foot, foure hundred horse, eight thousand pound in money; and about a hundred barrels of powder, with bullet and match proportiona∣ble; and to all this I must adde his resolutions at that extreme exigencie, when God was pleased to give the forces of that Noble Commander Sir Wil. Waller up to

a discomfiture; which exposed Bristoll at that very time to so much danger, and such an unavoidable hazard; that the Gentlemen themselves which had lost the field, gave in Bristoll to the sad Catalogue of being lost too, and thought it not tenible after such a sinew was cut, and these were men of so much judgment, honour, and un∣derstanding, the very naming them is enough with mee: Sir William Waller, and Sir Arthur Hastelrigg in a Letter under their owne hands; yet Colonel Fiennes though thus devested, and deserted, on all sides, first 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 resolutions, care∣fully collected the remayning sparks of that dying City, and of the whole West, striving to blow life againe into them; hazarding his own person day and night, and lay∣ing out himself in places of greatest danger, as some of the Gentlemen in the Catalogue have witnessed, ingage∣ing likewise his estate and credit for the taking up great sums of money, for raising and arming souldiers; that if he had thought it possible, he might have preserved that City, which was of so great importance to the Parlia∣ment.

Argument IV.

THe next Argument is this, that the losse of this City was surely by a providentiall misfortune, and an in∣capacitie in it selfe, to be defended to extremity, and some other unavoidable exigences: For first, hee could never raise men enough to make good the line, so as the souldiers did not stand within musket shot one from ano∣ther in some places, and not numerous enough in any place, being stormed in nine places at once, and being li∣able

to be stormed in all places, and promising a fair suc∣cesse to the besiegers at every assault, (the workes being rather like to those of a Quarter intrenched, then of a Town fortified very slight without any ditch at all in many places, and dry, narrow, and shallow, where there was any, being but seven or eight foot broad, and foure or five foot deep, nor could he make any reliefe or reserve without which, according to the maximes of war, it is impossible to keepe any place, much lesse such a weake and indefensible place, which indeed rather seemed a Landskipt of fortification than one indeed, and reall▪ and besides the weaknesse of the Towne, the Castle (which should have been the only reserve and refuge in such a supream extremity) was so old and crasie, that the wals thereof were not likely as was deposed before the Coun∣sell of Warre to endure the shaking of great Ordinance, and was in as much danger to the violence within as without, and so surrounded with Churches and Steeples, and Houses; and so commanded from them, that no souldier could stand 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 stand to their Ord∣nance, but the enemy had the command of their backs within Musket or halfe Musket shot; and so weake and untenible in many other respects that it could not hold out three or foure days in the judgment of any Souldier, according to the description therof given into the Coun∣sell 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 so situate from the Line too, that within three or foure days it might have been seclu∣ded from any possibility of Reliefe, if it had been wor∣thy of a relieving, after the Town, and Shipping▪ and

trading thereof had been destroyed, for which only it was worth presorving, and without which it was not so considerable, as to burne all the other to ashes for the sa∣ving of it, or rather the reprieving it, for a few days lon∣ger to the same destruction, if not from themselves, I yet from the enemy.

Argument V.

ANother Argument with me is, the concurrence of some particulars in his condition in that exigency: First want of men, the Garrison being too wide for the Souldiers, and the Line too vast a Circumference for so small an Infantry, not being able to endure the violent shakes of a numerous enemy as they were, the works so large, so weak, and so weakly manned, much lesse a siege; as he must needs have done, succours being so remote and distant.

Secondly, want of a place of defence in any sort teni∣ble by the Rules of War, when the principall Rampart of the Towne was entred, and the enemy lodged within it, severall Regiments of Horse and Foot.

Thirdly, want of obedience in some of his Officers, and a great part of his Souldiers, when the Line was en∣tred, so that he could not beat out the Enemy againe, or make any further resistance, some of his Officers and Souldiers refusing his commands, and the greatest part of his Souldiers deserting their Colours, and divers of them running over to the Enemy; and refusing to make any further defence.

Fourthy, despair of succours. Sir William Wallers Ar∣my being wholly ruined, and his Excellencies in so weak

and sick a condition, which was known to Col. Fiennes before he entertained a parley.

Argument VI.

ANother strong 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 raise in it, but on the contrary declared continually by his Letters and Messa∣ges, that hee neither could nor would be answerable for it, unlesse certaine Propositions might be granted him which he could never obtain, and therefore desired seve∣rall times to be freed from the employment, yet hee was willing rather to part with his own Judgement and de∣sires, and suffer them to be commanded in the service by the Parliament and his Excellency, while hee continued there; and taking care that it should be furnished, and Ammunition for a defence or siege, or rather that the reports of such preparations might keepe the enemy from entertaining a designe against it, being it was in it selfe so indefensible.

Argument VII.

ANother prevailing Argument with mee is the sub∣stance and form of the sentence which is thus from the originall.

DECEMBER 29▪ 1643. St. Albons.

The Honorable Councell of War being ful. and the Prosecutons Mr. Prinne and Mr. Walker being present, the sentence against Collonell Nathaniell Fiennes was pronounced by the Advocate, de scripta, as followeth.

COllonel Nathaniel Fiennes, you have beene arraigned & convicted before this Honorable Councel, for surrendring and delivering up of the Towne and Castle of Bri∣stol, with the Forts, Magasines, Armes, Ammu∣nition, victuals, and other things thereunto be∣longing, and for not having held the same to the utmost 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.

Copia vera

Jsaac Dorislaus, Advocate of the Armie.

Argument VII.

IT appears by this, that the Article of Warre is the hinge upon which this sentence only moves, here is no Concomitant expression of Cowardize or Treachery, so as the guilt is externall, and not internall, a guilt of disproportion and want of Commensuration to the Article, and whereas there is this clause, That hee held not the same to the utmost extremity; that is according to the tenour of the Article, for extremity is here consi∣derable under a double notion; as extremity is common∣ly understood and received: hee held it to the height of that notion, as I have cleerly remonstranced, 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▪ and though the Martiall Justice allows of no plea in that disproportion, yet there is a morall equity to be conside∣red here, which qualifies his not c••mming up to the last extremity, and this his Excellency considered in his par∣don: First, he must have burned the second City of the Kingdome to the ground, contrary to the constant pra∣ctice and policy of War, to the principles and rules of the Parliaments Protestations and proceedings, and to all the violencies and villanies which are the sad conse∣quences of an enraged Enemy entring such a City by force, having been exasperated before by the losse of a∣bove a thousand of their men, and amongst them foure Colonels and divers of quality; besides by such an act a considerable body of horse & foot, must necessarily have been broken, which by terms of competition might,

and by the Articles▪ were to be preferred for the service of the Parliament, in a time when we all knew they had so great need of men, Sir William Wallers Army being ruined, and his Excellencies very weak, and besides all this, many of the towne, resolving to joyne with the ••nemy to prevent it, and having great opertu∣nities to doe it in, in regard of the difficulties in making a retreate, so as those thinges inpartially considered, though they excuse not the Colonell a toto▪ yet a tanto, from transgressing against the Article of warre, yet they do take off from the malignity, and degree of the Crime▪ And it seems a diviner Law had the greater influence upon the Colonels soul at that time then the Law of war, & he would not do so much evill, that good might come thereof; and he was loath to set up such a fire to the King∣dome, and to light up the first Beacon of Desolation, and Devastation to the countrey, and I cannot but say this, we stand now upon more advantageous ground, and may now take a better prospect, and have a clearer Lant∣skipt of the effects and consequences, and inconvenien∣ces, then hee could have at that time; it being an easie thing to mistake the passage of Counsels, and the fairest landing-places of Designes in Exigencies, and Distracti∣ons of that Nature; Though he did it not without ad∣vice of his Counsell of warre too.

And for the Article of warre, it is the Summum Jus, and no question but Lawes and Ordinances of warre have their Policy, as well as Equity, and there▪ is an in∣terpretative Justice which they admit off, as in the case of the late pardon after sentence, they are made and con∣trived by that power which hath an eye to his Suprema∣cie, in being able to dispense, and qualifie the Justice of that Law which a he makes himselfe, for if the Letter

did not admit of these saire and mercifull interpretations, it were a killing Letter, and we know this State hath bin long in debate concerning the giving way to the Justice of War, or mercifull Law, being almost afraid to admit of a Law, so sharply pointed, but that the necessity (which is the supream Law) called for it.

Argument. VIII.

THE last Argument with me is, the pardon from his Excellency, which is not only an act of power, and grace, or illustration of the judgement, and sentence, and an honourable sheathing of the sword of Justice, but it is rationall, and argumentative, and bottomed on cer∣taine foundations, and principles, which I shall onely draw forth like arrowes out of their owne quiver, and give them into your hands to levell as you please.

THE PARDON.

VVHereas Colonell Nathaniel Fiennes late Go∣vernour of the City of Bristoll hath been questioned before a Counsell of war held in St. Albans, from the 14. day of December till the 23. of the said mo∣neth, 1643. by William Pryn and Clement Walker for the surrendring unto the Enemy, the sayd City and Castle of Bristoll: And whereas the sayd prosecutors themselves during the said triall, have delcared that their meaning was not that the said Colonell had delivired up the said City by any premeditate malice or Intelli∣gence with the Enemy.

And whereas the said Colonel hath bin cast by the said Counsell of war, only according to the letter of the Ar∣ticle of the Lawes, and Ordinandes of war, because he the said Colonell hath not held the said City, and Castle

of Bristoll to extremity: And whereas the said Colo∣nell hath been condemned by the said Counsell for this offence, &c.

In consideration of the premisses, and of the excellent gifts, and endowments wherewith it hath pleased God to enable the said Colonell for other employments in the service of this State, and in regard of my own experience and confidence I have of the said Colonels Integrity, and constant affection to the common cause of Religion Lawes and Liberty, which he hath given full testimony of, in sundry negotiations entrusted unto him by both Houses of Parlament and especially in that negotiation with the Kingdome of Scotland, Anno Dom: 1641. And in respect of his courage and valour shewed in divers ser∣vices, and in particuler in regard of the good testimony given to me by Sr. William Belfoor Leivtennant Gene∣rall of the horse in the behalfe of the valorous carriage of the said Colonell in Kainton feild riding up to the ve∣ry. Ordinance of the Enemy, with and neere the said Sir William Belfoore, I have by vertue of an Ordinance of both Houses of Parliament given and granted, and by these presents I give and grant unto the said Colonell a free and full pardon of all manner of offences, errours, and oversights committed in the said surrender of the City and Castle of Bristoll, discharging hereby the said Colonell from the-execution of the capitall punishment, imprisonment, restraint, and likewise from all further impeachment, and prosecution concerning the said sur∣render.

ESSEX, Given under my hand and Seale, the sixt of Jan. 1643, in London.

The Argumentative Principles of this Pardon.

FIrst that the prosecuters themselves during the said try all have declared that their meaning was not that the said Collonel had delivered up the said City by any premediate malice or intelligence with the enemy.

This acquits him from all umbrages of Treachery, his Prosecutors (it seemes) declining any such charge.

2 That the said Colonell hath been cast by the said Counsell of War, only according to the Letter and Arti∣cle of the Lawes and Ordinances of war.

This argues him only guilty of a disproportion of the Ar∣ticle and Letter of the Law, to that ultimate, and supream extremity, which the iustice of War exacts.

3 In regard of the excellent gifts and endowments wherewith it hath pleased God to enable the said Co∣lonell.

In regard of my own experience and confidence I have of the said Colonels Integrity, and constant affection to the common cause of Religion, Laws, Liberty.

Which he hath given full testimony of in sundry ne∣gotiations entrusted unto him by both Houses of Par∣liament.

And especially in that negotiation with the Kingdom of Scotland, An. 1641.

These are all seals, and confirmations, and honorable testi∣monies enough without any varnish in their plain and noble asseveration and attestatiou, from a person of such eminent quality and trust in this state and Kingdom, to reestate his re∣putation againe, and his honour in our opinions and iudge∣ments.

4 Especially in that particular, in regard of the good

testimony given to me by Sir Wil. Balfoore, Lievtenant Generall of the Horse in his behalfe the valorous cari∣age of the said Colonell in Keinton field, riding up to the very Ordnance of the Enemy with and neer the said Sir William Balfoore.

This discharges our thoughts from all preiudices from all mistakes that some uniustly conceived concerning his rosolu∣tion, he cannot be charged of cowardise, who charged so vali∣antly, and in the company and sight of so gallant a Comman∣der as Sir Walliam Balfoore, whose deserts in our publike cause hath raised him into an unquestionable testimony, and in disputable reputation with us. But more of this anon.

Having now given you a gener••ll and particular ac∣count, and not concealed any thing which was Argu∣mentative, & powerfull upon my Judgement I shall now treat with some Objections, and fairly dissolve those, and I hope by that time, others will be as well satisfied, as my self.

Object. 1, Why did Collonel Fiennes endeavour so earnest∣ly the triall of himselfe? why was he so busie a••d active for a day of Audience, when he had made a sufficient Apology to the house of Commons, of which he was a member, and the House rested content with that.

Answ▪ There were divers things printed which le∣velled at his Integrity and Reputation, in the conduct of this businesse, and the Malignants sought by all meanes to foment the rumours; and increase the Calumnies, on purpose to make divisions and ruptures amongst us; and to draw us into sidings and parties, as they well knew a prosecution of this nature would soon effect, Colonell Fiennes being one of those interests and relatious, as they knew him to be, and without question such as these were branches and nerves of the late designes for division

which we all know, and though some of the well affect∣ed party might seeme to bear a share in the prosecutions, yet I look upon them under a better notion, as those that were unhappily put on by the▪ Artifice and underwork∣ings of others, ayming (through mistakes and prejudices too suddainly received) at a publick service, and this er∣roneous and misguided activity, which (as is said of zeale) had been egood in a good thing had so anticipa∣ted and taken possession of the Judgments of many, that the Colonell was put upon a necessity of cleering him∣self, and bringing himself to a triall of this nature.

Obj. 2. But Col: Fiennes did give out, that he would make his Colours his winding sheete, and that he would lay his bones there, and dispute every inch of it.

Answ. It is one thing what is spoken resolvedly, and with a serious and perticular intendment, another thing what is spoken, 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▪ and there they hope to fore∣see good or bad events and successe, and he is not a wise Commander that hath clouds and ill weather in his countenance, and at that time, this Colonell did the like, for as it was deposed at the Counsell of War, the Gen∣tlemen of the County, and amongst them some of the Deputy Lievtenants deserted him, giving the City for lost. Yet in private where hee might be free with such a dangerous Consequence of generall discouragement▪ he declared his Judgment, that there was no hope of defen∣ding it, against that force after Sir Wil. Waller had lost his whole Army, and therein the strength of his Garrison, & this was the opinion of all the Gentlemen who left the

Town after Sir Wil. Wallers defeat, and their very depar∣ture at that juncture of time was a strong Argument.

Object. 3. But there are rumours spread abroad as if there were some cowardise in the act of surrendring.

Answ. I have sufficiently cleered this I hope by two Honourable testimonies of his Excellency, and Sir Wil∣liam Balfoor, to these there were many other unquesti∣onable witnesses, and some who were brought then by the Prosecutors themselves, and Crosse examined, that during the whole siege he carried himself vigilantly, carefully, and industriously and expressed such resolution and courage, that he hazarded his own Person, day and night, in the places of greatest danger, though I could here not onely remember these particulars, but that of Keinton field, where he charged with Sir William Bal∣foor, and that Regiment they were in, broke two Regi∣ments of the Kings foot, and he was one of the next to Sir William 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 Worcester, when the forces being routed, he and his Bro∣ther were the last Officers of Horse that came off the field; and he with Colonell Brown, Colonell of the Dragoons, made good the Bridge with some Dragoons, where they kept them from being all cut off.

Obje. 4. But it is reported that he wanted neither men nor Ammunition, to defend it against all the enemies power for three moneths together.

Answ. We must know that it was proved at the Councell of Warre, that their was but fiftie Barrells of Powder left, and they had spent fiftie in two dayes fight before; at Plimmouth they spent fortie Barrells in seven

hours fight, so as this proportion was not able to hold out for such a time; and this is not fair to give such a large measure of time, and such scant measure of Am∣munition: We may see how disproportionable reports may be, when they are justly surveyed, and for men, there was not quarter enough for defending the Line of four or five miles in length, and no reserve at all, they must fight, stand, watch, continually without relief. Now how impossible it is to keep men in continuall dutie, and with constant expence of Powder, for three moneths together, out of so inconsiderable a stock, both of men, and Powder, they must judge who have been so good at multiplying and substracting in reports of this nature; and are onely able to supply the defects of their own stories.

Obje 5. But it is further reported that at the entery into the Lyne, there were but 150 men that entred, and they staid there a long time before they were seconded, and gave them∣selves all for deadmen, and might easily have bin beaten out.

Answ. It was deposed that they were two or 300 that entered, none spake of lesse then two hundred, be∣ing Washingtons whole Regiment, and for giving them∣selves for dead men, it was so farre from that, as when the horse that were placed where they entred, played the Jades, & would not charge (for which Colonel Fiennes ac∣cused them) before Captain Nevill could come thither from the place where he guarded with his horse, there were so many entred, and they had so much life, as that they made his horse (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, some of them for hast running over

the Water at the Key, besides the Gate of the Town. And this was the first object that Colonell Fiennes met withall at the Gate, whereunto he hasted upon the first advertisement of their entry; Captain Nevill seeing their horse Regiments advanced to the breach before he was beaten of.

Object. 6. It is reported that Colonell Fienues out of ambition displaced Colonell Essex, and sent him up prisoner upon a pretended suspition, onely to thrust himself into the place of Governour, and yet denyed that Colonell Essex was Governour, or that himself was Governour.

Answ. Those reports are purposely spread abroad to the same end that all the rest, Fortiter calumniare aliquid haerebit, some will be incensed as Colonell Essex and his friends, and some will hereby be deceived to the pre∣judice of Colonell Fiennes, who know not the truth herein, and then the end aymed at is obtained. The truth was thus, Their was a Jealousy cast upon Colo∣nell Essex at that time for holding correspondencie with Prince Rupert; but Colonell Fiennes in his Letters did expresse, that he hoped he might be cleer of any such intention, although (having received an Order from my Lord Generall to send him up to him) he saw cause e∣nough not to dare to disobey that Order, finding how things were carried in the Town, to the discontent of all the well affected partie of the Citie, insomuch, that they were leaving the Citie before he came thither: And besides this, the fears and jealousies were such, and the complaints both from Bristol, and here in Town so many, that it is well known before ever Colonell Fiennes was thought of to be sent down thither, it was resolved by my Lord Generall, that Colonell▪ Essex should be sent for away so soon as it might be done safelie, and Master

John Sedgwick the Minister now dead, went to Windsor to my Lord Generall (as is known to some who can witnesse it) to be imployed down to Bristol upon that errand, and therefore Colonell Essex hath no cause to be so stirred up against Colonell Fiennes, for obeying my Lord Generall in that command, which was resolved to be executed before he was thought of for it; and it is also true, that Colonell Essex had no Commission to be Go∣vernour, nor Colonell Fiennes, for the greatest part of the time; and in that time, he said, he was not Gover∣nour, no more then Colonell Essex, neither had he a Commission untill two of Colonell Pophams Captains drew up their Companies against him in the streets, and told him they would not obey him, because he had not a Commission. And after that mutiny a Commission was sent him and not before; and he did acknowledge, that after that time, he had a Commission. These things are urged and made use of withall sinister construction and amplification, onely to cast odium upon Colonell Fiennes by deceiving others in not relating the things truely, as they were spoken, the times observed and distinguished.

Object. 7. 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.

Answ. No; For first the Councell of War did not go at all upon the Articles of Treachery, or Cowardize, seeing them so farre from being proved, that they were disproved, 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 utmost extremity which could not have been done, without burning it, as was

deposed by a Colonell of Noble qualitie, and could not have been kept longer then two dayes.

And for he L. General, it were a questionable presump∣tion to say that he should have power to hang and not to pardon▪ that he could onely kill, and not save, and so take of the Apicem or supremest of his power, the flower and noblest prerogative of his Authoritie, which Au∣thoritie he sufficiently and cleerly draws forth from his Commission given him by Parliament; and it is the honour of his Power to produce an extraordinarie act in such a pretious extremitie, as it is the glory of a diviner power to act a miracle, when no lesse will serve. 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 subordinate redemption, and a salva∣tion of a lower form, and an act which the best (I sup∣pose) do not grieve at. And for the honourable House of Commons, they never did refer the impeachment put in by the prosecutors to my Lord Generall as an accusa∣tion of theirs, or their approving against Colonell Fiennes, but for his Vindication against a slander upon his desire, which appeared in this, that that honourable Synod was moved at the impeachment put in, and refer∣red it to be considered of by a Committee, whether it were not a breach of priviledge, I remember now the case of the Atturney Herbert, bringing in an impeach∣ment against the five Members which was taken as a deep offence, for we must not think that the doors of that high Court stand open to any extrajudicall or Forraign proceeding, but onely to a Parliamentary, to their own naturall and proper courses, and wayes of tryall.

Obj. 8. But is it fit the execution of this sentence should be so slightly passed over, will it not be an occasion of tradu∣cing a signall president, and dangerous in these perillous times.

Answ. No, for extraordinaries are no presidents nor rules to any, and the pardon is not beyond Col. Fiennes; and further, we must distinguish and weigh offences, and not prosecute, as if there were no difference, nor degrees, nor aggravations, nor diminutions in crimes. First, 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 most ancient and experienced Souldiers, he pleading, that he thought it fitter to save the Citie of the Kingdom, then to burn it, which he must have done, whereas the Parliament might take it again, if so preserved; and here we may remember something for illustration, Let us look back at Exceter? Were the works or the principall Rampier taken, as at Bristoll; was it besieged by 12000 Souldiers; No▪ Onely by a Sherif and a posse comitatus, for a long time, yet one of the strongest Cities in Eng∣land, as the Devonshire Gentlemen say; nay further, was it reduced to that extremitie in the Article; was the Citie burnt to keep a strong work, Fort, or place in it; what were the conditions upon which it was surrendred.

Let us look at Lincoln, was the principall Rampier there entred: Was the Walls of the Citie battered▪ or the Walls of the Close a much stronger retreat then the old rotten Castle of Bristoll, was not that Citie with the Ordnance, Ammunition, Victuall, and prisoners left, when no enemy was near it by twelve Miles, and the ene∣my entered not into it till two dayes after▪ Here was no Citie reduced to utmost extremitie, no Citie burnt to keep the Close, and now we see happily reduced into the Parliaments hands again, and yet no impeachment, nor sentence, nor any signall president traduced.

So for Gainsborrough, were either the works taken, or forced, and yet delivered upon composition, and the

Parliament now reposessed of it, and yet no cowardice in these, nor treachery; it seems all these presidents were never thought signall, the Gentlemen never questioned, but still imployed, nor do I name these in any obliquitie, but to shew that we had Cities delivered and surrendred into the enemies hand; and yet no such notise, no such complaints, no such aggravations, no such prosecuti∣ons, no such markes of treachery or cowardize upon them. And though I am loath to go for Justice to Ox∣ford, and to seek presidents in the enemies Tents; yet the Justice of Warre is there too.

Was not Hereford as well ptovided within of men to defend, as the besiegers to assault without, yet delivered without conditions into mercy, the Commanders never questioned, still used, incouraged, employed.

Was not Reading (though Garrison'd with 4500 foot and 500 horse) the Army without not so many as before Bristoll succours at hand, yet surrendered.

The Commander Fielding a souldier (condeuined in∣deed) (onely to boy up the reputation of the other side, lesthall should disband) yet not executed, and so far from being laid aside, that he is still there and em∣ployed Bristoll not so well to be defended with double the number of men, yet had but seventeen hundred foot, and 300 horse and the most part of them raw men, raked up in the streets.

To this we may add Malmesbury, delivered up to Sir Wil, Waller, who testified of it in his Letter, that is was the strongest inland piece in England, where there was no want of men to defend it and Sir Wil. Waller ready ther∣upon to leave it, he having not so many men without it to assail it, then there were within it, yet Lunsford a good Souldier delivered it up without conditions to mercy, who was afterward employed in command, not laid a∣side▪

but commanded at Bristoll, where he was slain.

The like at Higham House, more within it, then assai∣led it, yet delivered up to mercie, none laid aside for it they know how to make better use of their Cards, then to fling them away for one lost game.

In a word, we see Cities and Townes delivered up and surrendred upon composition, and yet fall short of the justice of the Article of War too, and of the utmost ex∣tremitie, and this we may read both in our own practice, and our enemies, and yet no stain of Cowardize or Trea∣chery, no traducing of any signall president, not pressed, nor prosecuted, nor aggravated with the circumstances of perillous times, the Gentlemen and Commanders▪ (as divers of them well deserve) honoured, employed, pre∣ferred, and must this Colonell suffer under the sentence of justice irrecoverably, irrepairbly? is the judgement of our Courts like that of the Medes and Persians ir∣repealable, must all former deserts and eminencies, a con∣juncture of so many vertues be all intombed in a bad suc∣cesse, shall errors be writ in Marble, and deserts in sand▪ shall so noble a Family that hath laid such ingagement upon the publick, that hath boyed up this State and Re∣ligion in the times when their were such overflowings of Prerogative and poperie be now laid aside? shall wee think the right stating of an offence to be a traducing of any signall president? or an act of mercie and pardon to be a sleight passing over a crime, when as justice hath had a free course, in a free triall: and a pardon granted, with a cleer Declaration of the reasons and causes, I remember Jonah, when he impeached and pronounced sentence on the Ninivites, and God afterwards pardoned them, Ionah was very angry he thought (it seems) if he came off so cleer from the sentence, they should not come off so cleer in the reputation of a Prophet, but I have done, and wish onely that these few and plaine Expressions may be

read and received with the same candor and ingenuity they are writ, for I hope I have fairly published, and not painted the truth.

Certain Queries very considerable, and of p•••…•••…ck concern∣ment touching the prosecution and prosecutors Col. Nathaniel Fiennes.

1 WHether the prosecutors of Colonel Nathaniel Fiennes be wittingly or ignorantly put on by some Malignant and Jesuiticall spirits to foment Divisi∣ons by prosecuting one, of his interests and relations as affairs stand now, and so to stir up parties and sidings (if possible) in this juncture of time.

2 Whether the prosecuting of his Excellencies pardon, with such sleightings and reproaches from the prosecu∣tors, both in their late Petition and Pamphlet, be not of dangerous consequence to the publick, and the casting a bone betwixt the Parliament and his Excellencie, and so to promote Divisions, whether ought this Designe to be enquired into.

3 Whether the prosecutors doe not make use onely of the honourable name of the Parliament, and Lord Ge∣nerall, and the Counsell of Warre to save and shadow their own names, and reputations the better, by weaving their own particulars into those universall notions, and publick ingagements, to make their own p••sse better.

4 Whether the prosecutors owne interest and ingage∣ments and reputation, be not the chief motive of this their prosecution, because they affirme in their late peti∣tion, that his owne private summons and provocations onely ingaged them to the triall, & they were involun∣tarily engaged and why have they let so many other pla∣ces of publick concernment▪ which have been surrendred passe unquestioned, and the Governours and Command∣ers thereof who are yet imployed and intrusted for the publick, and why doe they ever and anon intrude a Re∣membrance

of themselves and their deserts, placing their own names under the notion of petitioners before either the Parliament, or Lord Generall, or Councell of War, as appears in the clauses of their last Petition.

5 Whether it be not an insufferable insolencie for any man to tax the house of Peers, for what they have done, and to call them to accompt for leaving Master Prynne out of the bill for Auditors, and questioning any of them for having a Negative or affirmative Vote in that House as is done in the Check, and hath he not in this and other things lately violated the Priviledges of Parliament as dangerusly, and in as high a degree as hath been done by any this Parliament.

6 Whether there is not a vast difference betwixt the Straf∣fords Case and Col. Fiennes, Strafford, being attainted and executed for overthrowing the Lawes of our Kingdome for introducing Popery into our Religion, for setting up Iniustice, Tyranny and oppression for endevouring to engage two King∣domes in a bloudy war, and all this on purpose, with all possi∣ble Artifice and Designe, and this Col. Fiennes who had ever had the reputation of godlinesse, of serving the State very happily and advantageously before in severall publick employ∣ments, till this unfortunate losse of Bristoll, though proved to be only a disproportion to tho Article of War, a misfortune by consequence, not at all by any designe or complot with the e∣nemy.

7 Whether the pardoning of this Collonel can be of such danger to the publike as the prosecutors would make us believe, seeing it is an extraordinary act, and grounded upon extraordinary reasons, and eminent deserts, as his Excellencie makes appear, and so none can promise or assure themselves of any such indulgence or pardon which is a meere arbitrary act, and so cannot en∣courage

themselves to any treacherous act upon any in∣fallible ground, nay rather the contrary, may they not rather suppose that the indulgencie or mercie is now pas∣sed away upon extraordinary grounds, and that any such expectation will be vain, and too conspicuously dange∣rous, and so nothing but execution to bee expected and acted, like Esay who coming too late, when the blessing was passed upon Jacob, could not obtain it again, though he sought it carefully with teares.

8 Whether the Col: Fiennes suffering to expiate the sufferings of others, bee a just ground, seeing that upon such a principle, every Governour or Commander in chiefe may be demanded upon every unfortunate action that hath any sad consequence attending it, and whither hath not the Collonel suffered aboundantly, both in his credit by mis-reports and Pamphlets, and by the unfor∣tunate surrender it selfe, and in his life by hazarding both his person there, and since to a trvall and condemnation.

9 Whether one of the Prosecutors did not penne the Check himselfe, because there is such larding his own de∣serts, and whether did he not penne this very clause: Mr. Willam Prinne appointed an Auditor for the grand Con∣ge, deserted accounts of the Kingdome chased out, and whether is it not printed at the Prosecutors Presse.

10 Whether one may not suffer martyrdome, and endure publike sufferings, and pillowrings, and further, give their bodies to be burned, & yet want charity, whe∣ther is not the holy Scripture plain for this or no? and whither would not this be taken into sad and serious con∣sideration by the Prosecutors?

11 Whether is it such grosse flattery and prevarica∣tion in Britannicus, modestly▪ and in three or foure lines, to name the vertue of a Gentleman, wel known, and repu∣ted before, though now prosecuted beyond mercie, to

blood and death, whither is not rather a good Christian advice to the prosecutors an excellent morall, a godly admonition.

12 Whether is it not a piece of great disservice to this Kingdome, and a great satisfaction to all Malignants, and a great Courtesie and encouragement to the vain Pamphlet Aulicus, to cast any such checks and aspersions upon Britannicus, and whither hath not the author of it of late been in the Country at Oxford with Aulicus or or no, or received some intimations from Court, or bribe if he be a Lawyer, to write against Britannicus whom all the well affected judge to have writ most im∣partially of the publike affairs, and to have undeceived and disabused the people, as much as any that hath come forth, by being serious with the sadder judgements, and more pleasant with the sanguine, taking downe the tra∣verse worke of the moderne machaivellisme, and whither doth he not deserve a good reward, and encouragement from the State for this service?

13 The last Querie is this, Whether it will please the Malignants or well affected party best, to see us pro∣secute any of our own party, & pulling of the blossomes from our own trees, which have flourished so long in this State and Church, onely because some of the fruit hath been casually and unfortunately blown off, and be∣cause there is not that fruit at all times of the year which we expect.

I will conclude with Mr. Prinues own words spoken at the Councell of War before many witnesses of unquesti∣onable or edit. They were these.

My meaning is not in saying Bristol was traiterously and cowardly delivered into the enemies hands, that Col: Fiennes is a Traitor or hath done this out of any preme∣ditate malice, or intelligence with the enemie, or that he

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 surrendring the Towne before it was reduced to utmost extremity. But these words traiterously and cowardly must be used in the language of the Law in an impeachment, as felony must be used in an indictment, and therefore it is that I use them. These words he used, or fully to this effect, as will be deposed by these Gentlemen.

• M. Iames Finnes,
• M. Thomas Earle,
• ...two Members of the House of commons,
• M. Iohn Fiennes,
• ...Cap. Tho. Temple,
• ...Lievtenant Edward Scotton,
• ...M. Hen. Pitt,
• M: Samuel Love of Bristoll,

Let all the world judge whether in his Pamphlet which hee spreads abroad (onely to stir up the people) he would have men thus understand him, when he so often exclaims of Tron, and the most traiterous and coward∣ly surrender Bristol.

FINIS.

Notes

• a

  These are to authori••e you to print for the use of the Army, the Lawes and Or∣d••nances of Warre, by me established ESSEX, Novemb. 25. 1643.