THE Charge and Articles OF HIGH-TREASON
AGAINST The
Earl of Derby, with the Tryal, examination, and Confession, on Tuesday and Wednesday, before a Court-Marshal at Chester.
UPon the 16th of this instant moneth, by an extraordinary Messenger from
Chester it is advertized, That the Earl of
Derby was brought before the Court-Marshal, consisting of Col.
Duckenfield and 15 Commission-Officers, where the Judge Advocate brought in, and read the Charge against him, consisting of High-Treason,
viz.
1. That he had in a most traiterous and hostile manner, been aiding, abetting, and assisting to
Charles Stuart (Son to the late Tyrant.)
2. That he had held correspondency and confederacy with the said
[Page 2]
Charles Stuart, and his accomplices; and to the utmost of his power, indeavoured the subversion and extirpating of this present Government; as also the violating and abolishing the Law and Discipline, so happily by them established.
3. That he had trayterously indeavoured to involve this
NATION in another bloody and intestine War, by issuing forth and sending Warrants in
Lancashire, and summoning in the people to a Randevouz.
4. That he had most traiterously appeared in the head of a party, both in
Cheshire, Lancashire, and other places within this Nation, and granted Commissions, signed
C. R [being a signal used by the grand enemy of this Common-wealth] to divers Gentlemen, Papists, and others, for the raising of forces against the Parliament,
&c. The Judge Advocate having read the Charge, his Lordship made a short Speech in answer thereunto, to wit, That he had not acted in the least, contrary to the Commands of his Master the King; but what he had done, was in order and obedience to the power and Instructions from him received.
After which Col.
Duckenfield and the rest of the Councel, proceeded to examination, and stated the matters of fact, consisting of High-Treason; which caused his Lordship to look very pensively, and moved him so far, that he would fain do something which might be considered, and himself in it; and withall, declares a good inclination to deliver up the Isle of Man, to the present power; only here lies a scruple, That he is afraid it will be imputed as a very ignoble and dishonourable thing, to surrender up his Children and Lady in it. But after some time spent in this business, the Councel referred the further proceedings in his Tryal until another time.
The matters of fact exhibited against him, are of a very high nature, and its probable may draw a severe sentence upon him: divers other persons of quality there are which were ingaged also in this treasonable design, who are likewise to be brought to the Bar of Justice: Therefore I conceive it requisite, to present to the free-born people of this Nation: certain Rules and Proposals, shewing the happiness and joy that will redound to all those at the hour of death that walke stedfastly in the wayes of Holiness; and the misery and torments that will befall on the contrary, to those that are opposers, and kick against the Ordinances thereof. An evident demonstration whereof followeth.
The Substance of the Earle of
Derby's Speech to enforce his plea.
I Understand my self to be Convented before you, as well by a Commission from the Lord Generall, as by direction of an Act of Parliament of the 12th. of
August last.
To the Articles I have given a full and ingenuous Answer, what may present it selfe for my advantage, I have gained liberty to offer and urge by Advise.
And I doubt not but in matter of Law the Court will be to me instead of Counsell in Court.
Sir, I shall first observe to you the nature and generall order of a Court Martiall, with the Lawes and Axiomes of it, as far as concerns my Case, and then shall apply my plea to such Orders, &c.
And therefore I conceive (under favour) that the Laws of a Court Martiall, are as the Laws of Nature and Nations, equally binding all persons, and in all places Military; and to be observed inviolably.
And therefore it is, if a Judgement be given in one Court Martiall, there is no appeal to any other Court Martiall.
Of which Law Martiall, the Civill Law gives a plentifull Accoun,t far above what the Common Law doth; as
Grotius de iure belli, &c.
But because it is one onely point of Martiall Law, which I am to insist upon for my life, — I shall name it, and debate the
Jus, the right of it, — It is Quarter for life given me by Captain
Edge.
[Page 4]Which I conceive to be a good bar to avoid tryall by a Councell of War for Life.
That you are a Councell of VVar, will be admitted, and being so, that you must judge and proceed to Laws of VVar, and no otherwise, cannot be denyed.
That Quarter was given me, if it be scrupled, I am ready to prove, and being given, that it is pleadable is above dispute.
I shall onely remove one Objection, which is, that though this be a Court Martiall, yet the speciall Nature of it is directed by Parliament.
To this I Answer, though the Parliament direct the Tryall as it is, yet it limits it to a Court Martiall, which cannot direct it selfe, nor is directed of its own nature by any such direction.
For to appoint a Court Martiall to proceed by any other Laws, than a Court Martiall can, — is a repugnancy in
Naturarei.
So that as such Court Martiall retains it's proper Lawes and Jurisdictions for the support of it self; so the pleas and liberties incident to that cannot be denyed the Prisoner.
That Quarter, and such Quarter as I had given, is a good plea for life to a Councell of War, I shall not endeavour so much to evince by Authors (that being the proper work of the learned in Civil Lawes) but by such way as that which we call
ius gentium, is proved by common practice, and strong reason.
For the first I shall not need to bring any Forraign instances, being before you whose experiences hath made this thing familiar to you; and I beleeve you will agree with me, That I am not onely the first Peer, but the first Man, tryed by a Court Martiall after Quarter given; unlesse some matters
ex post facto, or subsequent to such Quarter, brought them within he
examen of such Court Martiall.
And (as I am informed) upon the great Tryall of the Earle of
Cambridge, Lord
Capell, Earle of
Holland, &c that plea of Quarter being throughly urged, it was onely avoyded upon this ground, That it was no good Plea against a Civill Jurisdiction,
[Page 5] there being no colour of dispute, but tacitely admitted & concluded, that it was a good plea against a Military jurisdiction.
And though the Lord
Capell and Lord
Gorings quarter seemed to have some advantage, as being given by the Generall, and by way of Articles, yet that quarter given to the Earle of
Cambridg was given him by a particular Captain, and that quarter, as quarter considered, as strong as the other, only both avoided by the civill jurisdiction in the high Court of Iustice.
It being a rule in war, that quarter hath as much force being given in action, as Articles have in a Cessation, both irreversible by any Military power.
And though it may be a received opinion in politiques, that no Generals or souldiers concessions should prejudice the States interest, yet they shall be barrs to their owne power.
I confesse I love the laws of Peace more then those of war, yet in this case I must adhere to those of war.
And I would only know, whether a quarter was given me for a benefit to me, or for a mischief; it for a benefit, I am now to have it made good; if for a mischief, then it destroys the faith of men in arms.
And I have read this for a maxime of war, that promisses made by Kings, or States Commanders, ought to be observed inviolably, else there never will be any yeelding.
And I shall lay this before you as a Rule, that quarter given by the meanest souldier (if not forbidden) obliges as farr as if the Generall had done it.
And I never read or heard, that any Souldiers received to mercy, were (after 12 howres respite) ever denied quarter, or tryed by a Court Marshall.
It may be objected then, that it may rest in the power of no private souldier by giving quarter to pardon treason.
To that I say, I pleaded it not as an absolute pardon, but as a barr to a Court Marshall.
I shall infer further from conclusions of reason.
The profession of a souldier hath danger enough in it, and hee
[Page 6] need not add any to it, to destroy the right of arms. I am before you as a Court Marshall, it may be all of you, or most, have in some action or other since these troubles began, received quarter for your lives, and would it not be hard measure that any Court Marshall should try you afterwards.
If this quarter be foyled or nulled, all the Quarter, Articles, termes or conclusions made since the warr began may be examinable by any subsequent Court Marshall, nay, by this the sword, the Law of Armes, all Millitary interest, and your owne safety, are judged and jeoparded as well as mine.
But I shall not multiply, presuming you will not judge by the laws of war, in which capacity only you sitt; and that you wil
[...] in Religion and Iustice allow that plea which is universally, even in all parts of the world allowable.
If you are dissatisfied, I pray that as an essentiall to Iustice I may have a Doctor of the Civill Law assigned mee, or at least Liberty to produce their books and opinions.
And that in the interim you suspend your sentence
Touching my levying forces in the Isle of
Man and invading
England, I might plead my self (and that truly) a stranger to all the Acts of Treason, and in particular to the Act of the 12th. of
August, — And that the Isle of
Man is not particularly named in any of the Acts of Treason, and not being particularly named, those Acts reach not, nor bind those of that Island, — And in particular, that I was in the Isle of
Man, when the last Act was made. And the Law looks not backwards; — And whilst I was in
England, I was under an unlikelihood and unpossibility of knowing the new Acts, which I leave to judgement. But because I have, as to my Fact, confessed and submitted to the Parliaments Mercy,
I do, as to your Military power, earnestly plead Quarter, as a Bar to your further tryall of me. And I doubt not but you will deeply weigh a point so considerable, both to your concernments and Consciences, before you proceed to Sentence.
And admit my Appeal to his Excellency the Lord Generall
Cromwell, on this single point.
To the Right Honorable his Excellency the Lord Generall
Cromwell. The humble Petition of
James Earle of
Derby, a Sentenced prisoner in
Chester.
THat it appeareth by the annexed what Plea your Petitioner hath urged for life, in which the Court Marshall here were pleased to overrule him, it being a matter of Law, and a point not adjudged nor presidented in all this war: And the plea being only capable of appeal to your Excellency, whose wisdome will safely resolve it; and your Petitioner being also a prisoner to the High Court of Parliament in relation to his rendition of the Isle of Man.
In all he most humbly craves your Excellencies Grace, that he may as well obtain your Excellencies judgment on his plea, as the Parliaments mercy, with your Excellencies favour to him, and he shall owe his life to your Lordships service,
And ever pray, &c.
DERBY.
To that objection, that a private Officer cannot give quarter for life, is oppose the constant customes of men in arms in all Nations, and the particular warrant of the civill Law in that behalfe. One particular case was prest by his Lordship, and presented to his Excellency the Lord Gen.
Cromwell.
A Case wherein six private Souldiers gave quarter to six thousand of the enemy, among whom were the chiefest Officers of the enemies Army, the Generall only excepted.
IN the yeare 16
[...]1. The prince of
Orange being with the States Army at Bergen ap Zo
[...]me, to prevent the enemy of a designe of Landing in some part of Zealand, or some of those lesser Islands that divide it and Holland, the enemy being shrouded and distracted, and so forc'd a shore, half a dozen private Souldier of the Princes Army came to the place, to whom 6000 and above gave themselves prisoners; and the quarter was made good unto them, and they allowed to their Ransomes by the Prince of
Orange, notwitstanding he was with his Army on a very hasty march, with an intention to have cut them all off, in regard there was no quarter given by Water, nor any certaine ransome. In which businesse above three hundred Officers were prisoners. This Case is attested by
Foulcke Houncks. The. Alcock.
Colonel
Cromwell and Mr.
Hugh Peters were present at this Action.
Whereas further it has bin objected against the said Earl of
Derby, that he kild one Captaine
Bootle at the taking of
Boulton; for his vindication, from that imputation, he produced an Affidavit of a man of good repute voluntarily taken before Doctor
Aylet in the Chancery, in the year 1647. as followeth.
PEter Cropper of Bickerstaffe in the County of Lancaster Gentleman, maketh Oath, That about the latter end of the Month of
May, in the year 1644. at the time when Prince
Rupert took the Town of Bolton in Lancashire, by assault; he this Depone
[...]t, being there present, saw the now Earle of
Derby neer unto the Cross in Bolton; and it being rumored then, that the said Earle had slaine one
Bootle, that had bin once his Porter, he looked and saw the said
Bootle wounded, but not dead; and soon after, one Col.
Clifton, since deceased, standing by, with his sword ran the said
Bootle through once or twice, saying, If thou have not enough, thou shalt have more, or words to that effect; upon which the said
Bootle fell down dead; and he further saith, that this killing of the said
Bootle, was above an hour before the said Town was taken, or any generall Quarter given; for that the Princes Souldiers did pursue those in the Town above an houre after the said
Bootles death, before they ceased, and gave Quarter.
In the presence of Edward Stockley
Gentleman.
Peter Cropper,
Jurat 12
die May 1647.
Besides this, a Gentleman of Honour and Repute, Colonell
Russell, attested voluntarily before his Excellency the Lord Generall, that the Earle of
Derby, at the taking of Bolton charged with Prince
Ruperts Life-guard, who entred the Town next to the Forlorn hope, and that Quarter was not given of an hour and half after; so that if the Earl of
Derby killed
Bootle, it must needs be in the height of the storm,
Bootle being killed at the first entrance.
Upon the whole is is submitted to his Excellency the Lord Generall, and the Councell of the Army, whether the Earle of
Derby being a prisoner of war, after quarter given by a Capt. of the L. Gen. own Regiment, may be Sentenced to death by a Court Martiall.
FINIS.