เ 183. The Trial of JAMES Duke of HAMILTON, and Earl of CAMBRIDGE, before the High Court of Justice, for High Treason: 1 CHARLES II. A. D. 1649.* MR. Steel and Mr. Cook, the Counsel for the the beginning of this Parliament, many weeks were granted to an eminent man upon his trial (by whom he meant the earl of Stratford, who had time allowed him to send to Ireland). The ing him any satisfactory Answer. But the Court adjourned to the next day, without giv ed much on all the spectators, being so serene Duke's Carriage and Discourse that day gain That the earl of Cambridge, about the 19th July last, traitorously invaded this nation in a hostile manner, and levied War to assist the King against the Kingdom and People of Eng-and calm, that his very enemies did applaud it. land, and had committed sundry Murders, Outrages, Rapines, Wastes, and Spoils, upon the 'said People; and particularly about the 20th of August, near Preston, did make War, join Battle, and fight against the forces of the parliament, and therein did murder and kill col. "Thornley and others.' Saturday the 10th, in the evening, his Grace was again brought to the Bar, and he desired Counsel, which was granted; and it was referred to him, whether the Court or himself should name them: which he then passed over, and without much speaking on either him, that he must appear again on Tuesday side, the Court adjourned; notice being given the 13th. But no Order being issued forth for Counsel, some counsel who were dealt with did decline the employment. free access to him, in the presence and hearing of some of his keepers, and to be ready against Thursday following to maintain his Plea: upon which the Court adjourned till the 15th. To this the Duke put in the Declinatour and special Plea following, intending at last to answer the Charge, if the Plea was not sufficient: having first told the Court, he was better known by another name than the Earl of Cambridge. His Plea consisted of three Heads: First, He Tuesday the 13th, his Grace being brought pleaded this his undertaking that employment again to the Bar, desired a longer time, since, was by command of the Parliament, and Su-notwithstanding serious means had been used, no lawyer would be his counsel, without the preme Authority of the kingdom of Scotland, for such ends as he conceived were good and Court's Orders. This was granted by the Prejustifiable, and in no way derogatory to the sident (serjeant Bradshaw) after soine expostu peace and happiness of these dominions: That lation, and, upon his Grace's nomination, Mr. he did earnestly endeavour to decline it, but Chute, Mr. Hales, Mr. Parsons, and Dr. Walthat not being accepted of, he could not dis-ker, were assigned him for Counsel, to hare obey their commands without incurring the severest censures. Secondly, That he was born in Scotland before the naturalization of his father in England; therefore he conceived himself an Alien, and not triable in England. Thirdly, That he had rendered himself prisoner upon capitulation and articles with those who had major-general Lambert's commission; and that by these he was first a prisoner of war; next, his life and the safety of his person was secured to him by the Articles, which were signed by the Commissioners of both sides, before he was their Prisoner, and that they could fasten neither a Breach nor non-performance on him. Upon this the Counsel of the People caused the Act of his father's naturalization to be read, and spake a little, to aggravate and set out his fact: but he desired a convenient time to procure Papers, Witnesses, and other Evidences material to his Plea, which he said was seldom denied to any in that condition; and it was well known to many there, how that since Dr. Burnet's Memoirs of the Dukes of Hamilton, p. 385, &c. + John Lilburne, in the account of his Trial, in October of this same year [infra] seems to refer to something which passed on the Duke's being required to plead, but which is not mentione Thursday the 15th, his Grace being again brought before the Court, declared that their Order being offered to his Counsel, they all found themselves unable to plead for him, or to do what was otherwise fitting, and so bad refused to come and speak with him at St. James's. The Court objected the time they had already granted, and alledged this was a mere delay; but his Grace protested it was true, and offered one of his servants to attest it. Dr. Walker in court declared, he would not be of his counsel, by reason of his employment under the parliament. His Grace desired a convenient time, as was usual in the like cases, not only in respect of his lawyers, but that he might send to Scotland, and other remote places, for Witnesses and Evidences necessary for his Defence; since no prejudice could come by that delay, and this was denied to none in Trial for Life, and had been granted to MacGuire and Mac-Hun, two Irishmen. But for his Counsel, the Court ordained, that any of the six he should name might be authorized to advise with him in private, and to speak in Court in the matter of law arising out of the Fact of the Plea, after the Matter of Fact was handled, which his Grace was to maintain next Saturday. And for the time he craved, they said, he looked on the unreasonable time that was granted to Strafford and Canterbury, those grand offenders, with whom he had been too familiar, as precedents; but those were precedents without a precedent, and none were to expect the like at this time, especially since there were now so many prisoners to be tried. Lilburn was next examined, who deposed, That the Articles were signed by himself, and the other Treaties, about five in the morning, and were to be ratified by the Duke and Lam bert; and that his own meaning of preserving the Duke's life (he knew not how the rest meant) was only to preserve him from the vio lence of the soldiers, and not from the justice of the Parliament. At this, Peters rose up; expressing great dislike of Lilburn's glos, say to the Court with some Witnesses, his Counsel cerned: That he had seen many Articles of Saturday the 17th, his Grace was brought ing, That much tenderness was to be used where the life of so eminent a person was con. being near, but not present; and in order to the parts of his Plea, he first produced Dupli- that it was clear by those Articles the Duke War, but never heard of such ambiguity; and cates of the Cominission, and Orders from the held his life secured, as well from the Parlia Parliament of Scotland, and Committee of Estates there. The Court demanded Evidence that if their Commissioners had meant other ment as from the soldiers; and wished to God, for both. His Grace answered, Were time | wise, it had been so expressed in the Articles, granted, he would not only sufficiently prove it being most necessary that Articles in a cons these, but many other points belonging to his Justification. But the Court answered, That Cerment of life should be plain and certain. unless they were presently attested, viva voce, future, but it is now too late. The President answered, You say well for the they would not suffer them to be read. Whereupon his Grace desired that his servant, Mr. Lewis, might be examined, whose testimony | was accepted, and the Papers he produced Next the Governor and Marshal of Windwere received for Evidences, and read. Next, the Declaration containing the ends of the Ensor were examined about his Escape from gagement was read, and being proved by the same Witness, was left in Court with the former papers. Then the Gourt, upon his Grace's de sire, produced the original Articles of Capitulation, which were read; and Mr. Cole proved he saw them delivered to his Grace about nine in the morning, before the lord Gray came in. The lord Gray deposed, That two several Summons, which were sent by him to his Grace to yield upon mercy, were both answered negatively in respect of the Cessation and Treaty; That by a Letter from Cromwell, dated Warrington, August 20, he was enjoined to pursue the Scottish forces with all vigour; That he had received letters from the Staffordshire gentle men with whom the Cessation begun, intimating that they had condescended to it, on purpose to gain a few days time to strengthen themselves, in regard the Scots were so numerous; and that he dispatched away Wayte and Peters that morning in which the Treaty ended, to protest against it. Peters was next examined, and answered, That going that morning to protest, by over from the lord Gray, he came accidentally to the Duke, where he found the hostages in his chamber, and asked if he was willing to be the lord Gray's prisoner, who answered, he could not in regard of the Treaty; but if he were afterwards to be disposed of, he had rather be his lordship's prisoner than any other's, being of his acquaintance: That he had seen the Summons, and the negative Answer to them: That this was about five in the morning; and that Wayte and he went a part of the way towards the place of treaty, where he heard the Articles were concluded. | His Grace resumed what had been said, and spoke much on the Articles for weakening Lilburn's gloss. Windsor-Castle. The Governor deposed, That the Duke said to him, he needed not fear his escape, he would be a true prisoner, and not Marshal said, he only heard this from the Go go away though the gates were opened. The vernor. The Duke expressed a deep resentment of this injury, done him by the Governor, who wounded his honour so much, which he valued above all earthly things; and did shew how unlike it was, that any such thing was either demanded or granted, since that is only done for a little more liberty, whereas he was all the while kept under strict guards; nor had he the liberty of walking in the park, but was always guarded by two keepers, the one lying all night in the room next him, and the other every night locking the door, and carrying the key with him: That the Governor's testimony in this matter was not to be received, he being a party, and now in hazard for his negligence, for he was told that if he escaped, he should die for it; adding, that if he were not a prifor that scandal cast on him, and chuse no soner, he would desire right of the Governor other place for it but Westminster-Hall. But to all this the Governor made no Reply; the President said, that though he could not blame the earl of Cambridge for what he said, yet for all that the Governor was not to be dis credited. three branches of his plea, reserving the fuller After this, the Duke spake a little to all the enlarging upon them to his counsel. He insisted most on the Articles, which he doubted not were sufficient to protect him: he desired them to consider, how sacred Articles of War were reputed in all places, and among all nations, and how inviolably they were kept, ali He desired a Warrant for bringing some gentlemen, then prisoners in Whitehall, who were his material Witnesses; but the Court adjourned, and promised to consider of that motion in the Painted Chamber; yet they granted it not. princes and states being most careful to observe them, not only to strangers, but to subjects; having great regard to Articles, though only for quarter, much more when there was a capitulation for life: adding the following instances. Elisha the prophet would not suffer the king of Israel to kill the Syrian captains, saying, Wednesday the 21st, the Court sat, and the Wouldst thou smite those whom thou hast taDuke was brought to the bar. Some were inken captive with thy sword and thy bow? The terrogated about the time of his birth, to prove blood of Abner lay on Joab's head, who killed him Post-natus: But it was not proved, one one that had the king's Safe-Conduct. The Gibeonites also, though they used Joshua deperson only swearing, that he heard him say be ceitfully, yet were preserved according to the was some years younger than the king. Evidence was also brought of his conjunction with Articles given them; and not only Saul's house, but the whole land suffered for the vio- Langdale, which they accounted Treason; yet even that was not clearly proved, though it was lation of them. That prince Robert and the much laboured. Some letters of his to Langlord Cottington, though excepted from life or dale had been taken, and were brought into pardon by act of parliament, were notwithstanding that, upon the Articles of the Rendition, so it did not appear that they were his Court: but as the letters proved no conjunc tion of Oxford, permitted to go beyond sea, letters; only Peters asserted they were like his and never questioned for life: and the like justice was done the earl of Bristol and the lord Paulet, upon the Articles of the surrender of Exeter, though both were excepted from Pardon: And that the lord Fairfax and the Officers of the army were most careful to see Articles always kept, in which they judged their honour deeply concerned, and had often written to the parliament to that end; therefore he did not doubt the like justice would be done him. By this time it was late, and the President appointed Monday next for the Duke to finish his plea in Matter of Fact, ordering his counsel to be in the Court, for their better information; and so they adjourned. hand. Then a Vote of the two Houses was read, repealing a former vote of setting 100,000l. sterling upon him for ransom; and Proof was brought, that notwithstanding Art cles were given, yet some had been forced to studied to evince that the parliament did not take the Negative Oath; and thereby they hold themselves bound to stand to Articles. After this, his Grace resumed the substance of all those Evidences, and shewed that it was not proved he was a Post-natus, nor that he joined with sir Marmaduke Langdale, who ne ther received orders nor the word from him, but marched and quartered apart; and that Coun-though he had done otherwise, it could not be criminal in him, since he had no orders to the contrary from the parliament of Scotland, but would concur with him for prosecuting the ends was commanded by them to join with all who approving, he had no reason to refuse concurof the Engagement; of which sir Marmaduke Monday the 19th, the Duke and his sel were brought to the bar. Col. Wayte was examined, who deposed, That the Duke rendered himself to be the lord Gray's prisoner, and desired Wayte to protect him from the multitude, who thereupon left a guard at his going away. But during his Deposition, Peters said, He lies, he lies! And Peters, Spencer, and other othicers who were with Wayte at Utoxeter, being examined, did totally falsify his Deposition. Divers were also that day exa mined about the place of the Duke's birth, who all swore, they heard it always said that he was born at Hamilton, and that it was not a thing to be doubted of. rence with him; neither could this be made Treason by the law of England: Of all which it seemed the Parliament was once well-satis fied, since by a vote they had fined him in which it appeared they looked not on him as a 100,000l. sterling as the price of his liberty; by Traitor, but as an enemy who had life granted him by Articles. Others were examin ed about the signing of the Articles, who all witnessed that they were signed long before the lord Gray came: and major Blackmore deponed, That the Duke's being the lord Gray's prisoner, was by an agreement betwixt him and Lambert, whose occasions pressed him to go suddenly northward. After this the Duke spake a little, to shew how little weight was to be laid on Wayte's testimony, which was so evidently disproved. Next, his Counsel asked the Court's directions how they should proceed; and the Court answered, That after the matter of fact was handled, they might plead in law upon all the parts of the Plea: And they told the Duke by the next Wednesday to finish his Evidence. day the 22nd, and his counsel were appointed Upon this, the Court adjourned till Thurs The Duke was brought to the bar, and by dito plead, and he was to close his Evidence. vers Witnesses it was proved, that there was plain refusal; and that the Treaty was ended, no Rendition made to the lord Gray, but a the Articles signed, and Lambert come up, before the lord Gray came thither. There was also produced an Order of Parliament, made four years before, That no quarter should be given to any of the Irish in arms, which infer red that others might have them; and another Order was read of the 14th of July last, declar ing all the Scots who entered England enemies, and all the English and Irish who assisted them traitors; and with this he closed his Evidence. And since he was not to be suffered to speak any more, he enlarged on all the parts of his plea and spake at length as follows: "That he was sent by the kingdom of Scotland, which was a free kingdom, and independent on England; That he having had his birth, honour, and fortune there, was bound to give obedience to their orders; that for himself, he had lived much out of business, and was seldom in public trust in that kingdom, nor very desirous of any; but that being commanded to undertake the charge of General, for ends which he conceived lawful, and no way contrary to the peace or interest of England, he was obliged to follow their orders: And that by some Papers emitted by the Parliament of England against that expedition, they declared they looked on it as a National Breach, whereby Scotland had violated their Leagues and Treaties with them, so that it was no private act of his : That the entering of the Scotish Army into England, A. D. 1640, was accounted no Invasion nor Treason, but on the contrary was acceptable to this kingdom, which gave a brotherly assistance for it; and that the late unfortunate Army was designed fully for as good ends, and would have so been looked on had it prospered. And for his joining with sir Marmaduke Langdale, he answered it as was before set down. Therefore he being taken Prisoner in such a War, he conceived it with known that the life of any such was taken ; and that by the second Article, Life and Safety of person were expressly secured without any exception: That if Articles were now violated, it would make the sequel of the wars, if any more followed, a downright butchery, since none would any more trust to a capitulation; which mischief he prayed God to avert: That his Escape out of prison was no breach, he being only bound by the Articles to deliver himself prisoner, which he did, but not to continue so. And he concluded, That he was confident, had he no better Plea, his Articles were sufficient, according to the laws of all nations, to preserve his life." Then the President asked him, if he had any thing to say as he was earl of Cambridge? Whereupon he and his counsel moved, That if what he had said and proved was not satisfactory for the averment of his Plea, he might answer the Charge exhibited, which he had not their Counsel would yield, though they gave no yet done. But to this, neither the Court nor reason for it, save only that it implied a desire of delay but the reason, as was said, was, That they knew, had they yielded to that, the Charge had been overthrown, since the law of England does not admit that to be Treason which they charged on him, that he had assisted the king against the kingdom and people Counsel, that Saturday was the longest time Then the Court told his by levying war. they allowed them for performing their part: But the Counsel answered, That it was impossible for them to undertake it, and discharge their consciences to their client, having so short a time allowed them; there being a necessity of searching divers Records for Precedents, allowed in former cases. which required a competent time, as had been But the Court refused to promise it, only they said they would take it into their consideration. The Counsel insisted, and said plainly, they declined the employment on those terms, and would be forced to declare it. out a precedent that he should be tried for his life, for serving his native kingdom in an open war. As for his being an alien, he referred that to his counsel, but said it was undeniable he was born in Scotland, nor was he proved a Post-natus; he was also born before his Father's Naturalization, and so not included in it, and his own naturalization had been in agitation in the beginning of this parliament: That his sitting in parliament did not conclude him an English earl; for if questioned, he might probably have been expelled out of the House of Peers, as his countryman Mr. Walter Stuart was out of the House of Commons; and that his being an Earl did not naturalize him, that being the king's single act, whereas Monday the 26th, the other two officers that naturalization was only by Act of parlia- had signed the Capitulation for the Duke and ment. As for the Articles, it was clear, his troops, who had been sent for a great way that Lambert being a general officer, commis-off, were examined, who agreed with the former sionated by Parliament, was impowered to capitulate both by the parliament and by Cromwell, the lord Gray having no authority from the parliament, but only from Cromwell's Letter: that he became the lord Gray's prisoner only by Lambert's order, and that he inade no Surrender till the Articles were signed and delivered: That though the lord Gray had protested against it (and yet only an intention to do it was proved), he was not concerned in it, nor bound to take notice of it, Lambert being the Parliament's officer, and sent against him by them: That Articles were to be expounded by their plain meaning, and not by any mental reserves pretended by the commissioners: That by the first Article, he was a prisoner of war, and that it was seldom Witnesses in Matters of Fact, and also with Lilburn, that by signing the Articles they only meant the Duke should be preserved from the violence of the soldiers, and not from the justice of the parliament. Then the counsel began to plead, and all four spoke on the several heads of the plea. Mr. Heron spoke cursorily and elegantly, but not very materially: Mr. Parsons, a young man, spoke boldly, and to good purpose: Mr. Chute the civilian spoke learnedly and home: and Mr. Hales (since the much-renowned Lord Chief Justice of the King's-Bench) elaborately and at length. The heads of their arguments follow The Duke being, as was granted, a born Scotchman, his tye of obligation and subjec tion to that kingdom was indispensable and in- | was soner, he was not tried, nor put to death, but sent back to France, as being a native of that kingdom. And when David Bruce, king of Scotland, invaded this kingdom, and was taken prisoner, great endeavours were used to find a legal ground for his trial, he being earl of Huntingdon in England; but this plea was waved, for it was found that it could not be done justly, that being but a less degree of honour, though king Edward claimed a kind of homage from the crown of Scotland. That if the Duke were on that account put to death, it night prove of sad consequence, in case there war any more betwixt the kingdoms; since most of the present generation were Post-nati and all would be so quickly and yet if the lord Fairfax, who was both a Postnatus, and had his honour in Scotland, were commanded to lead an army thither, and being taken were put to death, it would be thought hard measure. For the duke's father's natu ralization, it was true, by the statute of the 25th of Edward 3, provision was made, that children born without the kingdom, whose parents were then in the king's allegiance, should be denizens: but the duke was born before his father's naturalization, which can never reach him, none but the issue after his father's naturalization being included within it; and the word Hæres in the act is only a word of limitation, and not of creation: nor did his making use of the assistance of some English forces make him a traitor. It is true, if an Englishman conduct a foreigu army, or if a foreigner come of his own bead, or in a re That whether he was a Post-natus or Ante-bellious way, to assist an English rebellion, it natus, did not appear; but though he were, it did not vary the case, nor his obligation to the place of his nativity and so though he were Post-natus, or accounted a denizen by his father's naturalization, his offence could not be treason, but hostility at most; and by that supposed hostility, he could only lose his privilege of a denizen, but could not be made a traitor, there being no precedent where ever any man was attainted of treason for a hostile invasion; and it was questionable if this offence could amount to that. Nor could any case be alledged, where one born in another independent kingdom, acting by a commission from that kingdom, and residing there when he received his commission, and raising the body of his army in that kingdom, and coming into this in an open hostile manner, was ever judged guilty of treason. Naturalization was intended to be a benefit, and not a snare; so that one might well lose it, but was not to be punished for it. And so when France and England were under one sovereign, divers of both nations were naturalized in the other; yet when hostility broke out betwixt them, many so naturalized fought on the side of their native kingdom, for which none were put to death, though divers were taken prisoners. And in Edward the third's time, though he claimed France as his by bis right; yet when the constable of France invaded England, and was taken pri will amount to treason: for the act of such an alien is denominated from the crime of those he assists here, where he owed a local obedi ence, which was the case of Shirley the French man and of Lopez. But if an alien come with a foreign force, though he make use of English auxiliaries, that only infers a hostility, but no treason; and was the case of the lord Harris a Scotchman, 15 Eliz. and of Perkin Warbeck, both having English help: and though War beck was put to death, it was by no civil jodi catory, but only by the will of Henry 7, who erected a court-martial for that purpose. The present case was yet clearer, where the alien had authority from his native kingdom, and was commanded by them to make use of English help: so that though Langdale's assisting the duke did make himself a traitor, yet the duke's accepting of it only infers an act of hostility. And whereas it was objected, That the parliament had already by their act which constituted this court for his trial, declared ban a traitor; it was not to be disputed what the parliament had power to do, but no parliament had ever done the like before; and the meaning of the act must be, that he should be tried whether, guilty of treason or not, since if the parliament have already declared him a traitor, further trial was needless. And it was clear, the parliament by their act in July last, which declared all the Scots who entered England |