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.
The trial of the Earl of Derby was really only a pretence of justice. As in the case of Charles I., two years before, the verdict had been decided upon before the court met. The result was a foregone conclusion, for Parliament had resolved to put Derby out of the way. As a matter of law his excuses were good enough; but no one could suppose that the trial would be decided by technical points. Of course the Earl had not heard of the Act of August 12th, but it would have made no difference if he had; and he knew quite well that he had been exempted from pardon by the Parliament years before, and must have been fully conscious of the risk he ran in taking part in the invasion of the Scots. The Council of State had evidently decided also that the sentence of the court-martial should be carried into effect. They had written to Colonel Duckenfield on September 30th "As to what you mention of the Earl of Derby, order has been given by Parliament concerning him, which is to be effectually pursued, without expecting any interposition from Council."[240] Nevertheless great efforts were naturally made to secure a reprieve. On September 29th, after the first day's sitting of the court, Derby himself directed two petitions, one to the Council, and the other to Parliament, promising to surrender the Isle of Man if his life should be spared. He also wrote to Lady Derby to surrender the Island, but no hope was given that his petition would be granted even on these terms.