The Earl of Derby, who had fought with his accustomed bravery, was surrounded by six of his men and succeeded in reaching the town, where he slipped in through an open door of a house in the Market Place and lay concealed until nightfall. He had a number of slight wounds about the arms and shoulders, and his beaver which he wore over a steel cap was picked up afterwards in the Lane with thirteen sword cuts upon it. In the middle of the night he left his place of refuge disguised in a trooper's old coat, and accompanied only by Colonel Roscarrock and two servants, made his way out of the town and rode away to join the King.
Events had moved with too tragic suddenness for news to come to those waiting in the Isle of Man. There is in the Tanner MSS. a short letter written by Henrietta Stanley on August 11th from Castle Rushen to Tyldesley who was superintending the embarkation of the troops at Douglas. The girl writes light-heartedly, in high hopes of the success of the expedition which fair winds were just about to set free to sail, and closes with a playful message to Colonel Roscarrock about a book. Now, just fourteen days later, the royalist army had been scattered, Tyldesley was slain, and Roscarrock one of the three who rode away under cover of darkness with the wounded Earl of Derby. But no tidings of the disaster came to Castle Rushen for many weeks. After long waiting, the Countess sent out a pinnace but it was driven by contrary winds upon the coast of Cheshire, and fell into the enemy's hands.[234]
Journeying as quickly as his wounds and weariness would permit, Derby reached the house of a Mr. Watson at Newport in Shropshire, where he met a friend, who conducted him to Boscobel House, which was then only occupied by two servants, William Penderel and his wife (Friday, August 29th). This was just a fortnight after he had landed at Preesall. Resting there until Sunday, the Earl was then guided by Penderel to Gatacre, and so reached Worcester. Pursued by ill-fortune to the last, he arrived there bringing the news of his own disaster, only two days before the Battle of Worcester; where Cromwell, with an army more than twice as numerous as the Scots, had no difficulty in gaining a complete victory. Derby fought in the battle, and after the defeat his chief care was for Charles' safety. He was one of the few noblemen who attended the King to Kinver Heath near Kidderminster; and it was by Derby's advice that Charles was conducted to White Ladies, and from there, under the care of the Penderels Richard and William, to Boscobel. "This is the King," said Derby to William Penderel, "thou must have a care of him and preserve him as thou didst me." Thus saved from the first pursuit, Charles after many narrow escapes reached Brighton and crossed to France.[235]
Derby then joined the retreat northwards with Leslie, the Earl of Lauderdale, Lord Talbot and others. They were attacked by Colonel Blundell, but managed to make their escape. Soon afterwards, however, they fell in with another skirmish and were captured. A Lancashire captain named Oliver Edge was riding by himself to see what had become of the 'forlorn,' when he noticed a party of horse in the field behind him. Fearing they were enemies he hastened back towards his regiment; when to his surprise all the horsemen dismounted and surrendered themselves prisoners. The Earls of Derby and Lauderdale were the most important of those captured. Edge gave the prisoners quarter but his action was over-ruled by the Parliament through no fault of his own. Derby afterwards wrote of Edge as "one that was so civil to me, that I and all that love me are beholden to him." The Earl with some other prisoners was carried to Chester Castle.[236]
After the battle of Wigan Lane, Lilburne sent up Lieutenant Turner to London with letters to the House of Parliament which were read on August 30th. After hearing the letters Turner was called in to give an account of the battle; and the House made him a present of £100, at the same time voting to Lilburne the sum of £500 and lands to the yearly value of £200. This was to be raised out of some delinquent's lands, and was in satisfaction of two former votes of £1,000 each which remained undischarged. The Sunday after the battle (August 31st) was named as a public thanksgiving.[237]
The Earl of Derby's papers were referred to the Council of State to see whether they contained anything of importance (August 30th); for so hasty had been his flight from Wigan that all his baggage, including his cloaks with his Orders, fell into Lilburne's hands. On the following Monday Sir Harry Vane, the younger, reported to the House that papers of great importance had been found in the Earl's hampers, and as a result of their examination the Council of State decided on September 10 to represent to Parliament that Derby was a fit person to be brought to trial and made an example of justice; and that he should be tried by court-martial at Chester.[238] Parliament made the required vote on the following day, September 11th.
The irreconcilable hostility of the Earl to the Parliament, his high rank, and especially his prominent part in the last campaign, rather than his personal character, probably decided the Council of State to deal hardly with him. He was not a dangerous man. But it was thought necessary that an example should be made. Much has been written by royalists of the perfidy of putting him on trial for his life after quarter had been given; but Derby must have known that Edge's promise was liable to be over-ruled by a higher authority; and in any case it could have made little difference, for if Derby and his companions had not surrendered at Newport, they must have been captured during the next few days.
The trial began at Chester on September 29th. The Earl of Lauderdale had been sent to the Tower, and Giffard, another of those who had surrendered, escaped from Bunbury in Cheshire. Two other prisoners, Sir Timothy Featherstonhaugh and Captain Benbow were tried at Chester with Derby. After the resolution of Parliament on September 11th, a commission was directed to Major-General Mitton, Colonel Duckenfield, Colonel Mackworth, Colonel Birch, Colonel Henry Brooke, Colonel Henry Bradshaw, Colonel Thomas Croxton, Colonel Gilbert Ireland, Colonel John Carter, Colonel Twistleton, Colonel Mason or any three of them. Most of the names were those of officers of the Cheshire Militia Regiments enrolled in Hamilton's invasion of 1648. Birch and Ireland were the only two Lancashire names, and neither of them attended any of the sittings of the court martial. Mackworth was chosen President. He was Governor of Shrewsbury, and on Charles' march it was thought that he might be prevailed upon to surrender the town, but he returned a rude denial. Most of the other members of the commission were comparatively unknown; indeed it was not a dignified court by which to try a great nobleman.[239]
The articles against Derby were that he had in defiance of the Act of Parliament of August 12th, 1651, making it treason to hold correspondence with Charles Stewart, received a commission from him, proclaimed him King at several places in Lancashire, had raised forces to assist him, and on their defeat had himself fought in the Battle of Worcester. The Earl did not attempt to deny his acts, but he asked for more time to consider his answer, and the court was adjourned until the following day, Derby being furnished with a copy of the articles. Next morning (September 30th) at 8 o'clock in the morning the other two prisoners were tried. Derby was then brought to the bar, and pleaded that he was in the Isle of Man on August 12th and had never heard of the Act under which he was being convicted. His request for counsel was considered and allowed, and at the Earl's own suggestion Mr. Zancthy, a Chester lawyer, was named. The court then adjourned, and it was decided that the Earl should have liberty at 9 o'clock next morning to plead his own case. Later in the day a request was made on his behalf that he might have Sir Maurice Enslow or Sir Robert Brerewood as counsel instead of Zancthy, but this was refused.
Next day the Earl again pleaded that he was ignorant of the Act of Parliament of August 12th, and further that Captain Edge had given him quarter, and therefore that a court-martial had no authority over him; and he appealed to Cromwell to support his claim. The court, however, over-ruled the plea, and decided with two dissentients that there was cause to proceed to a conviction according to the articles proved. It was objected that quarter could not be allowed to traitors, and it cannot be supposed that Derby would have acted otherwise had he known of the Act of August 12th. The two voting in the negative were Twistleton and Delves, and the former desired his vote to be recorded. When the court met in the afternoon, however, and decided that the Earl was worthy of death and should be executed at Bolton on October 16th, Twistleton was one of those who voted. Delves was apparently not present, but of the nineteen members, none voted in the negative. Regarding the place of execution ten voted for Bolton, and eight for Manchester; against the name of Lieutenant-Colonel Finch no place is given. So that it was only by a bare majority that Bolton was fixed upon.