JUSTICE AND EQUITY OF THE CONVICTION.
[Sidenote: _Exceptionally iniquitous._]
Students of English judicial history, with all their recollections of
the strange processes by which criminal courts in Ralegh's age leaped to
a presumption of a State prisoner's guilt, stand aghast at his
conviction. Mr. Justice Foster, in his book, already cited, on _The
Trial of the Rebels in Surrey in 1746_, professes his inability to see
how the case, excepting the extraordinary behaviour of the King's
Attorney, differed in hardship from many before it. He is referring to
the legal points ruled by the judges against Ralegh. Possibly previous
prisoners had been as ill-treated; and the fact amounts to a terrible
indictment of English justice. But one broad distinction separates this
from earlier convictions. Other prisoners in general were guilty, though
their guilt may have been a form of patriotism, or may not have been
logically proved. Ralegh's guilt of the crime imputed to him was not
proved at Winchester, and has never been proved since. If to have
cherished resentment for the loss of offices, to have incurred popular
odium, to be reputed superhumanly subtle, to have been the sagacious
comrade of a foolish malcontent, to have been alleged by that man, whom
he was not permitted to interrogate, to be disaffected at a time at
which strangers to him happened to be plotting rebellion, to have
abstained from betraying overtures for the exertion by him of an
influence he never used and did not possess on behalf of a pacification
which the sovereign was negotiating, be high treason, then it is
possible, though even then not certain, that Ralegh was a traitor. If
none of these possibilities amount to the crime of treason, then he was
not.
[Sidenote: _The Spanish Pension._]
[Sidenote: _James and Arenberg._]
He was alleged to have listened to disclosures by Cobham of a scheme for
obtaining money from the Archduke, or the King of Spain. He was alleged
to have been offered a share. He was alleged to have asked for a pension
as the price of the revelation of Court secrets. No other relevant
charges were brought. Of the evidence against him, the second or third
hand hearsay depositions of Brooke, Watson, Copley, and Clarke, like the
gossip of Dyer, had no effect even upon the Lords Commissioners and the
jury. The fragments of testimony actually credited were contributed by
Cobham alone, himself the principal in the supposed transaction, who had
retracted his original statement over and over again, whom the Court
refused to confront with the man he accused. Had the allegations been
ever so consistent, cogent, credible, and corroborated, they proved
nothing, except that Ralegh might, not would, have accepted foreign gold
if it had been proffered to him. Cecil accepted it for years to come,
and died at once Prime Minister and pensioner of Spain. Northumberland
had recently taken a pension to furnish France with secret intelligence.
The fact does not abate the admiration of Lingard, who yet thinks it
reasonable that a jury should have convicted Ralegh on the bare
suspicion of a similar offer by Spaniards to induce him to help them
towards peace. James was eager for peace. He placed the utmost faith in
the possibility of permanent amity with Spain. He was enthusiastically
certain of its importance and value to the kingdom and his dynasty. So
little did he object to the agent of Ralegh's alleged intrigue through
Cobham with the Spanish Court that he never allowed a symptom of
impatience on that side to escape him. Ralegh's guilt at worst depended
wholly on the reality of his partnership in Cobham's dealings with
Arenberg. In the spring of 1604, Arenberg, who had left England at the
end of the previous October, before the Winchester trials commenced,
returned as the Archduke's envoy for the negotiation of peace between
Spain and this country. He went away finally in the summer. To the
Archduke who had commissioned this suspected plotter of treason James
wrote in August, 1604: 'We thank you most affectionately for the
sincerity and affection you have shown yourself to bear towards the
conclusion of this peace and friendship by the choice you have made of
such worthy and eminent instruments as are our cousin the Prince Count
of Arenberg and his colleague, who, by their sufficiency, prudence, and
integrity, have so conducted this important affair that we have received
therein very great satisfaction.' He had used the same benevolent tone
with respect to the Count during the Winchester proceedings. Cecil
officially informed Sir Thomas Parry that the Count had always been made
by Cobham to understand that the combinations and money were to be
employed simply for the advancement of the peace. An identical defence
might be offered for Ralegh, if not for Cobham himself. But it was
convenient for James and his Court to exonerate the envoy; it was
convenient for them to use the same transaction for a deadly weapon
against Ralegh. Of any care or sense of actual truthfulness in King or
counsellors throughout the whole business, not a trace can be found.
All concerned in Ralegh's trial and conviction have a heavy burden of
bloodguiltiness to bear. But the Judges were less culpable than their
lay colleagues and the Crown counsel; the whole bench of Commissioners
and the Bar than the jury; the jury than the King, his Ministers, and
courtiers. Sir John Hawles, afterwards Solicitor-General, in a printed
reply in 1689 to Shower's apology, called _The Magistracy and Government
of England Vindicated_, for Lord Russell's conviction, censured Popham
for dispensing with a second witness, and with the presence of Cobham.
He argued from the practice of a later period, that Judges who had
deviated from it must have been violating their consciences. That is
unreasonable. The course taken by the Chief Justice and his brethren
conformed, as we have seen, to the legal usage of their time, however
opposed to natural justice. The fault was greater in the lay members of
the Court, and in the Attorney-General, who might undoubtedly, as
representing more directly the Crown, have produced Cobham. All that the
Judges declared was that the Crown need not, not that it must not. Still
more heinous was the verdict based upon evidence which, if enough in
quantity, was manifestly worthless in quality. Twelve worthy gentlemen
awarded a horrible death to a man guilty of no other offence, as they
knew, than that he had been offered a sum of Spanish money, which he
denied he would have accepted, and certainly never received. Most
shameful of all was the conduct of the Government which knew the
emptiness of the entire case, yet strained every nerve to extort a
conviction.
[Sidenote: _Legal and Moral Innocence._]
The question of Ralegh's moral innocence is not the same as that of his
legal innocence. All writers answer the latter unanimously in his
favour. On the former they are divided. Hume, indeed, a far from partial
critic, who could not sympathise with one of his 'great but ill
regulated mind,' pronounces wholly for him. He finds no proof or any
circumstance to justify the condemnation, which he roundly stigmatises
as contrary to all law and equity. Historians since Hume have commonly
been willing to suppose that the Government proceeded upon some solid
ground. In Lingard's Catholic eyes, Ralegh was simply an unscrupulous
flatterer of Elizabeth, and an immoral adventurer. Not pledging his own
judgment to the righteousness of the verdict, he remarks that 'the guilt
of Ralegh was no longer doubted after the solemn asseveration of Cobham'
on the scaffold. Hallam had no bias. Though he thought Ralegh 'faulty,'
'rash,' destitute of 'discretion,' and not 'very scrupulous about the
truth,' he admired him as a bright genius, 'a splendid ornament of his
country,' 'the bravest and most renowned of Englishmen.' He has declared
the verdict against him contrary to law, but thinks it 'very probable
that the charge of plotting to raise Arabella to the throne was partly
at least founded in truth.' Mr. Gardiner condemns the particular
accusation as 'frivolous and false,' but believes it had some basis in
his character, in his habit of 'looking down from the eminence of
genius upon the acts of lesser men.'
[Sidenote: _Absence of Evidence of Guilt._]
[Sidenote: _Apologies for Condemnation._]
For such support of the prosecution and verdict, qualified as it is,
there is a difficulty in perceiving any foundation, except the
improbability that a Government should have conspired to obtain the
capital condemnation of an illustrious Englishman on no better testimony
than that which it vouchsafed or dared to offer. That even Cobham had
engaged in plots for the deposition of James in favour of Arabella,
which the Ambassador of the Infanta, herself a Pretender, would not have
been in the least likely to further, no evidence except French hearsay
from James's Ministers exists to prove. That he may have intrigued for
the exercise of illegitimate pressure in Spanish interests upon the
King, is very probable on his own admission, though 'it does not
follow,' as Ralegh writes in his History, 'that every man ought to be
believed of himself to his own prejudice.' It is not equally clear, but
it is credible, that he had sounded Ralegh, and had appealed to his
constant pecuniary necessities, with a view to his engagement in the
design. Ralegh may well have suspected enough, without direct
complicity, to be able, if he had chosen, to deliver up Cobham to the
Government some time before his interview with the Council at Windsor.
His omission may have been a breach of his legal duty as a loyal
subject, as his hint to Cecil of the transactions with la Renzi was a
breach of perfect faithfulness to friendship. But there is no sufficient
ground for questioning his own apology, that he regarded the scheme as
the vapouring it for the most part was. Moreover, it is not impossible,
or improbable, that he may, as he stated to the Lords Commissioners,
have endeavoured to dissuade Cobham from plotting. He may have used
threats for the purpose, though he did not carry them out. This would
explain Cobham's alarm, otherwise unintelligible, that Ralegh meant to
inveigle him and other agitators into Jersey, and then give them up.
That he actively abetted a conspiracy, either with Arenberg, or against
James, is in itself as improbable as it is in fact unproved. James, on
his side, may have believed that Ralegh was willing to acquiesce in a
treasonable conspiracy, and to enjoy some of its fruits. In this mode
the King, and Cecil also, would lull their consciences, while they
availed themselves of law for the ruin of one whom they disliked and
dreaded. They acted upon surmises, and historians have followed them.
Honest-minded writers have been ashamed to think the State could have
persecuted an innocent man as it persecuted Ralegh without other
evidence than that it disclosed. They have tried to explain the
incomprehensible by the unknown. Forgetting the characters of James and
his Minister, they have inferred Ralegh's criminality from his
subjection to the treatment of a criminal.
Every effort was made at the time to demonstrate his capital guilt. The
efforts were continued for thirteen years without success. As Ralegh
ironically wrote in 1618, Gondomar's readiest way of stopping the Guiana
expedition would have been, had he been guilty, 'to discover the great
practices I had with his Master against the King in the first year of
his Majesty's reign.' In default of direct testimony, apologists for
Ralegh's condemnation have even attempted to plead a remark by the
French Ambassador, Beaumont, to his Court before the trial that, though
there was no sufficient evidence to sustain a conviction, yet the truth
was 'Cobham with Ralegh had conducted the practices with the Archduke.'
As Hallam observes, Beaumont possessed no more information than the
English Government gave out. He arrived at his conclusion against Ralegh
on the testimony of Arenberg's intercepted letters, which James had
shown him. Of the correctness of the inference from them, Lingard
admits, 'we have no opportunity of judging.' That the Frenchman would
rejoice to believe a rival diplomatist had traitors for his
confederates, and that they had tampered with assassination plots, is
obvious. His bias towards such a result must have been so strong as to
incapacitate him, even beyond de Thou, for a neutral scrutiny of the
facts. Inquirers since have ransacked all sources of information,
official and unofficial, English, Spanish, French, and Venetian. No
higher criminality has been discovered in him than that he may have been
aware of the project of an acquaintance to influence by means of Spanish
gold the King's policy. If he were guilty of worse than this, it is a
solecism in the history of treasons that in the course of three
centuries not a tittle of evidence of it should have been unearthed.
[Sidenote: _Cobham's Trial._]
Ralegh, to the last, clung to the chance of rehabilitation through
Cobham. He should have understood the man too well by this time to
repose the most slender trust in his truthfulness, generosity, or
courage. Privy Councillors examined him after Ralegh's trial, and he
repeated his calumnies. On the following Friday he was tried by his
peers in the County hall, the great hall of Winchester Castle, known as
Arthur's Hall from a picture of the Round Table at the east end.
'Never,' reported Sir Dudley Carleton, afterwards Lord Dorchester, who
was present at both trials, 'was there so poor and abject a spirit.' He
listened to his indictment with fear and trembling. He confessed he had
hammered in his brains imaginations of the matters charged against him,
but never had purposed to bring them to effect. He repeated in an
incoherent manner his charges against Ralegh. Ralegh, he asserted, had
stirred him up to discontent, and thereby overthrown his fortunes.
Ralegh had proposed the despatch of a Spanish army to Milford Haven.
Ralegh had made himself a pensioner of Spain. As earnest of services for
which he expected a salary of 1500 crowns, Ralegh had disclosed to
Arenberg State deliberations at Greenwich. Ralegh had nothing to hope
from the compiler of this wonderful medley, who was willing to buy his
life by calumnies upon his friend. He had nothing to hope from the legal
justice of his cause. His only real hope was in a discovery by the
Fountain of Mercy that the prosecution of him was a mistake; that he was
too precious a weapon in the royal armoury to be thrown away, or be let
rust; that though law condemned, the national conscience had acquitted
him, and cancelled his sentence. His trust, at all events, in public
opinion was justified. In 1603 it was not plain to his contemporaries
that not a shadow of evidence had ever existed on which he could justly
be sent to trial. They saw no absurdity in the association of his name
as a traitor in scurrilous ballads with those of Watson and Brooke. But
they had seen him in the dock. He had compelled them to weigh the proofs
against him and recognise their hollowness and inconclusiveness. The
manliness with which he had stood at bay against Coke's insolence,
Cobham's perfidy, and Cecil's damaging apologies for estrangement had
brought over to him the sympathy of public opinion. The tide of popular
feeling turned, and ceased henceforth to run turbulently against him.
[Sidenote: _Public Opinion._]
The Court had been densely thronged. A multitude of eye-witnesses spread
through the kingdom their own 'great admiration.' 'Never man,' writes
Sir Toby Matthew, 'spoke better for himself. So worthily, so wisely, so
temperately he behaved himself that in half a day the mind of all the
company was changed from the extremest hate to the extremest pity.' His
demeanour was extolled as perfect; to the Lords humble, yet not
prostrate, to the jury affable, not fawning, rather showing love of life
than fear of death, to the King's counsel patient, but not insensibly
neglecting, not yielding to imputations laid against him in words.
Michael Hickes wrote to Lord Shrewsbury that his conduct 'wrought both
admiration for his good parts and pity towards his person.' His
demeanour and eloquence, Hickes heard, had elicited some tears from Mar
and Cecil. It was 'wondered that a man of his heroic spirit could be so
valiant in suffering that he was never overtaken in passion.' Carleton's
account to Chamberlain was that he answered Coke and the rest 'with that
temper, wit, learning, courage, and judgment, that, save it went with
the hazard of his life, it was the happiest day that ever he spent. And
so well he shifted all advantages that were taken against him, that,
were not _fama malum gravius quam res_, and an ill name half hanged, in
the opinion of all men he had been acquitted. In one word, never was a
man so hated and so popular in so short a time.' James wished to have an
independent account of the trial, and had commissioned two gentlemen,
Roger Ashton and a Scotchman, to report. They carried the news of the
trial to the King at Wilton House. 'Never,' stated Ashton, according to
Carleton, 'man spake so well in the time past, nor would in the time to
come.' The Scotchman seems to have reported that, 'whereas, when he saw
Sir Walter Ralegh first, he was so led with the common hatred that he
would have gone a hundred miles to see him hanged, he would, ere they
parted, have gone a thousand to save his life.'
[Sidenote: _Legends._]
The shock inflicted upon the national instinct of fairness by the
conviction of such a man, on such evidence, and after such a defence,
showed itself by legends which clustered round the facts of the trial.
'Some of the jury,' it is related by Francis Osborn in his _Memorials on
the Reign of King James_, 'were, after he was cast, so far touched in
conscience as to demand of him pardon on their knees.' Coke himself was
rumoured to have been astonished at the form of the verdict. He was in a
garden resting his brazen lungs and his venomous temper, when his man
announced that the jury had brought in Ralegh guilty of treason.
'Surely,' observed Coke, 'thou art mistaken; for I myself accused him
but of misprision of treason.' The story, which its narrator, in the
anonymous _Observations upon Sanderson's History of Queen Mary and King
James_, issued in 1656, 'upon the word of a Christian received from Sir
Edward Coke's own mouth,' will appear to any reader of the trial a
manifest fable. Not the less does it, like the myth of the fraud by
which Cobham's accusing Winchester deposition is alleged to have been
procured, testify to the difficulty the public experienced in digesting
the judicial outrage upon reason. Similarly must be explained the
anecdote, though told by Ralegh himself to the Privy Council after his
return from Guiana, on the authority of his physician, Dr. Turner, of
Sir Francis Gawdy's death-bed lament that 'Never before had the justice
of England been so depraved and injured as in the condemnation of Sir
Walter Ralegh.' Gawdy had uttered no word of protest against the
shameless misbehaviour of his Chief and the Attorney throughout the
hearing. On the contrary, his one remark was against the prisoner. If he
really considered the conduct or result of the trial iniquitous, it is a
pity he was not more prompt in denouncing it. His judicial sensitiveness
needed to be awakened by a fit of apoplexy which carried him off in 1606
to his grave in the next parish, he having turned his own church at
Wellington into a dog kennel.