THE trial and PLEA OF JAMES Earl of DERBY, Prisoner of War, before a Court martial at Chester, Octob. 1. 1651.  
The Articles were several particulars of Treason, by his Invading ENGLAND, raising Forces, &c. The Answer is a confession of the fact.  
The Plea is a Plea of Quarter, which he conceives to be a good Bar to a trial for Life, by Court martial or council of War, though not against a mere civil Judicature.  
His Plea was overruled by the Court upon this account, That the Court martial was directed by Parliament. So that the Court proceeded to Sentence, only gave him a fortnight's time from the first of October.  
From this Sentence he appealeth to his Excellency the Lord general.  2 Kings 6.21, 22. 
And the King of Israel said to Elisha when he saw them, my Father shall I smite them? shall I smite them?  
And he answered, thou shalt not smite them, wouldest thou smite those whom thou hast taken Captive with thy Sword, and with thy Bow.  
LONDON, Printed in the year, 1651.   

THE Charge and Articles OF HIGH-TREASON AGAINST The Earl of Derby, with the trial, examination, and Confession, on Tuesday and Wednesday, before a Court-Marshal at Chester.  
UPon the 16th of this instant month, 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 traitorous 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 Charles Stuart, and his accomplices; and to the utmost of his power, endeavoured 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 traitorously endeavoured 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 rendezvous.  
4. That he had most traitorously 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 commonwealth] 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 council, 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 withal, 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 council referred the further proceedings in his trial 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 engaged 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 freeborn people of this Nation: certain Rules and Proposals, showing the happiness and joy that will redound to all those at the hour of death that walk steadfastly in the ways 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 Earl of Derby's Speech to enforce his plea.  
I Understand myself to be Convented before you, as well by a Commission from the Lord general, 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 itself 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 counsel in Court.  
Sir, I shall first observe to you the nature and general order of a Court martial, with the laws and axioms 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 martial, 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 martial, there is no appeal to any other Court martial.  
Of which Law martial, the civil Law gives a plentiful Accoun, t far above what the Common Law doth; as Grotius de jure belli, &c.  
But because it is one only point of martial 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.  
Which I conceive to be a good bar to avoid trial by a council of War for Life.  
That you are a council of war, will be admitted, and being so, that you must judge and proceed to Laws of war, and no otherwise, cannot be denied.  
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 only remove one Objection, which is, that though this be a Court martial, yet the special Nature of it is directed by Parliament.  
To this I Answer, though the Parliament direct the trial as it is, yet it limits it to a Court martial, which cannot direct itself, nor is directed of its own nature by any such direction.  
For to appoint a Court martial to proceed by any other Laws, than a Court martial can,— is a repugnancy in Naturarei.  
So that as such Court martial retains its proper laws and Jurisdictions for the support of itself; so the pleas and liberties incident to that cannot be denied the Prisoner.  
That Quarter, and such Quarter as I had given, is a good plea for life to a council of War, I shall not endeavour so much to evince by Authors (that being the proper work of the learned in Civil laws) 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 foreign instances, being before you whose experiences hath made this thing familiar to you; and I believe you will agree with me, That I am not only the first Peer, but the first Man, tried by a Court martial after Quarter given; unless some matters ex post facto, or subsequent to such Quarter, brought them within he examen of such Court martial.  
And (as I am informed) upon the great trial of the Earl of Cambridge, Lord Capell, Earl of Holland, etc that plea of Quarter being throughly urged, it was only avoided upon this ground, That it was no good Plea against a civil Jurisdiction, there being no colour of dispute, but tacitly admitted & concluded, that it was a good plea against a Military jurisdiction.  
And though the Lord Capell and Lord Goring's quarter seemed to have some advantage, as being given by the general, and by way of Articles, yet that quarter given to the Earl 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 civil jurisdiction in the high Court of justice.  
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 politics, that no Generals or soldier's concessions should prejudice the state's interest, yet they shall be bars to their own power.  
I confess I love the laws of Peace more than 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, than it destroys the faith of men in arms.  
And I have read this for a maxim of war, that promises made by Kings, or States Commanders, aught to be observed inviolably, else there never will be any yielding.  
And I shall lay this before you as a Rule, that quarter given by the meanest soldier (if not forbidden) obliges as far as if the general had done it.  
And I never read or heard, that any soldiers received to mercy, were (after 12 hour's respite) ever denied quarter, or tried by a Court Martial.  
It may be objected then, that it may rest in the power of no private soldier by giving quarter to pardon treason.  
To that I say, I pleaded it not as an absolute pardon, but as a bar to a Court Martial.  
I shall infer further from conclusions of reason.  
The profession of a soldier hath danger enough in it, and he need not add any to it, to destroy the right of arms. I am before you as a Court Martial, 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 Martial should try you afterwards.  
If this quarter be foiled or nulled, all the Quarter, Articles, terms or conclusions made since the war began may be examinable by any subsequent Court Martial, nay, by this the sword, the Law of arms, all military interest, and your own 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 sit; and that you wil● in Religion and justice allow that plea which is universally, even in all parts of the world allowable.  
If you are dissatisfied, I pray that as an essential to justice I may have a Doctor of the civil Law assigned me, 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 myself (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 trial 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 general Cromwell, on this single point.  
To the Right honourable his Excellency the Lord general Cromwell. The humble Petition of James Earl of Derby, a Sentenced prisoner in Chester.  
Showing,  
THat it appeareth by the annexed what Plea your Petitioner hath urged for life, in which the Court Martial 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 wisdom 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 excellency's Grace, that he may as well obtain your excellency's judgement on his plea, as the Parliaments mercy, with your excellency's favour to him, and he shall owe his life to your lordship's service, And ever pray, &c. DERBY.  
To that objection, that a private Officer cannot give quarter for life, is oppose the constant customs of men in arms in all Nations, and the particular warrant of the civil Law in that behalf. One particular case was pressed by his Lordship, and presented to his Excellency the Lord Gen. Cromwell.  
A Case wherein six private soldiers gave quarter to six thousand of the enemy, among whom were the chiefest Officers of the enemy's Army, the general only excepted.  
IN the year 16●1. The prince of Orange being with the state's Army at Bergen ap Zo●me, to prevent the enemy of a design 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 forced a shore, half a dozen private soldier of the Prince's 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 ransoms by the Prince of Orange, notwithstanding 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 certain ransom. In which business above three hundred Officers were prisoners. This Case is attested by  
Foulcke Houncks. The. Alcock.  
Colonel Cromwell and Mr. Hugh peter's were present at this Action.  
Whereas further it has been objected against the said Earl of Derby, that he killed one captain 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 Earl of Derby near unto the Cross in Bolton; and it being rumoured then, that the said Earl had slain one Bootle, that had been 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 general Quarter given; for that the Prince's soldiers did pursue those in the Town above an hour after the said bootless death, before they ceased, and gave Quarter.  
In the presence of Edward Stockley Gentleman. Peter Cropper,  
Jurat 12 die May 1647.  
ROB. AYLET.  
Besides this, a Gentleman of Honour and Repute, colonel Russell, attested voluntarily before his Excellency the Lord general, that the Earl of Derby, at the taking of Bolton charged with Prince Rupert's lifeguard, who entered 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 general, and the council of the Army, whether the Earl 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 martial.  
FINIS.