A SUBSTITUTE FOR A TRIAL (October 22, 1618).
[Sidenote: _Two Courses._]
Bacon, his fellow Commissioners, and the Law Officers were consulted by
the Crown on the fitting procedure for the setting up of the old
conviction. Coke seems to have been deputed by the other Commissioners
to embody in legal form their unanimous opinion, which Bacon, as Lord
Chancellor, delivered to James on October 18. The only copy in existence
is in Coke's handwriting. It was to the purport that Ralegh, being
attainted already of high treason, could not be drawn in question
judicially for any crime since committed. The Commissioners recommended
one of two courses. The first was for the King to issue his warrant for
execution upon the conviction of 1603. At the same time, as Ralegh's
'late crimes and offences were not yet publicly known,' a printed
narrative of them might be published. The Commissioners agreed that such
a course could legally be pursued. Some among them would see as clearly,
though they might not feel as indignantly, as the modern Whig historian,
that 'no technical reasoning could overcome the moral sense which
revolted at carrying the original sentence into execution.'
Consequently, an alternative method, to which the Commissioners 'rather
inclined,' was suggested in Coke's paper; one 'nearest to a legal
procedure.' There was a precedent in certain proceedings against Lady
Shrewsbury. According to it, Ralegh might be called before the whole
body of the Council of State, with the addition of the principal Judges,
some noblemen and gentlemen of quality being invited to act as
audience. He should be told he was brought before the Council rather
than a Court of Justice, because he was already civilly dead. Then he
should be charged in regular form by counsel with his acts of hostility,
depredation and abuse. He should be heard in his defence; and adverse
witnesses should be confronted with him, as Cobham had not been. With
that which concerned the Frenchmen the Commissioners thought he should
not be charged. Therein he had been passive rather than active; and
without it the case appeared to the Commissioners to be complete.
Moreover, they doubtless suspected Ralegh could show that in the French
negotiations he had not acted alone. Finally, said the memorial, the
Council and the Judges assisting would advise whether his Majesty might
not with justice and honour give warrant for Ralegh's execution upon his
attainder, in respect of his subsequent offences.
[Sidenote: _Objections to an open Inquiry._]
[Sidenote: _Sir Julius Caesar._]
James dictated a reply to the Commissioners, which is extant in the
writing of the secretary of Villiers. He objected to the second proposal
in its original form for two main reasons. The procedure, though proper
against a Countess, would be too great honour against one of Ralegh's
state. It would not be 'fit, because it would make him too popular, as
was found by experiment at the arraignment at Winchester, where by his
wit he turned the hatred of men into compassion.' Consequently, the King
modified the arrangement by an omission of the Judges, and of the
element of partial publicity through the presence of a selected
audience. The members of the Council who had conducted the previous
examinations were directed to sit as a quasi-criminal Court. But they
sat with closed doors, and their sitting was kept strictly private. From
a letter at Simancas, written on November 6 by a Spanish Agent in
London, Julian Sanchez de Ulloa, to his Government from hearsay, it may
be gathered that the inquiry was held on October 22, and lasted for four
hours. No complete account has been discovered of the course it took, in
consequence, Mr. Spedding, in his _Life of Bacon_, supposes, of the
destruction of a mass of Council Chamber papers in the fire of January
12, 1619, at the Banqueting House. That is possible. As the Commission
sat as a Court, not as a Council, the explanation is not incompatible
with the circumstance that the Council Register for 1618, which, as it
happens, did not suffer from the conflagration, contains no allusion to
a meeting of the Council on October 22. Nevertheless it is more likely
that the want of official record is due to the extreme anxiety of the
King's advisers for secrecy. They were afraid of popular feeling. The
fact of the imitation trial might have been itself doubtful, but for a
fragmentary sketch in a volume of Sir Julius Caesar's notes, preserved
among the Lansdowne Manuscripts in the British Museum. The report, which
breaks off in the middle of a sentence, is on Council paper, and may
have been drawn up for official use, if not with a view to ultimate
insertion in the Privy Council Register. In Mr. Spedding's opinion only
the first sheet has been kept, and the condition of the paper seems to
me clearly to favour the hypothesis. He believes that the full note
contained additional evidence against Ralegh, for instance, on the
question of the expedition's provision of mining tools, with his replies
to it, and the decision of the Commissioners upon the whole. The report,
in its existing form, needs to be eked out with the suggestions,
necessarily not very sympathetic, in the subsequent Royal _Declaration_
of Ralegh's line of defence against the charges. Such as it is, it must
be read with caution and uncertainty. Caesar, who was Master of the
Rolls, was generous, and, for a Jacobean placeman, just. The only grave
imputation on his memory is his connivance, as a Commissioner, at the
collusive divorce of Lady Essex. It is not impugning the good faith of
any reporters of proceedings, like the present, against Ralegh, to look
sceptically at their narrative. Law reporters in general had lax notions
in those days of the distinction between actual statements and
inferences by themselves as to the construction they bore. Coke's
Reports show it abundantly. Caesar in particular would feel in no way
bound to mechanical accuracy. His endeavour would be to give the
prevailing force and significance of the charges, of the defence, and of
the evidence; the impression they made upon him with a view to his
judicial conclusion. We know the judgment formed in advance by him and
his colleagues on the mendacity of Ralegh's account of the motive of his
enterprise. That could not but warp a compendium by him of an
investigation instituted in order to find a legal justification for a
capital sentence on a presumed impostor and pirate.
[Sidenote: _Charges and Defence._]
Sir Henry Yelverton, the Attorney-General, leading for the Crown, took
for his theme the conduct of the expedition. He was obliged to try to
excuse the King for his authorization of an adventure alleged by himself
to be an imposture. His Majesty had been induced, by the hope of 'his
country's good,' to grant a commission, which, it should be noted, Caesar
describes as 'under the Great Seal.' The King, Yelverton was not ashamed
to suggest, had been the dupe of Ralegh, who invented the Mine to regain
his liberty. He could not, it was argued, have meant to mine, since he
carried no miners or instruments. He had a French commission to assail
Spaniards. In reliance on that he had ventured to direct an attack on
San Thome. On its failure he was in a mood to depart, and leave his poor
company behind him helpless. He had anticipated lucrative booty from the
town. Disappointment at its meagreness helped to incite him to schemes
for the capture of the Mexico fleet. Much indignation was spent by Sir
Thomas Coventry, the Solicitor-General, in his turn, on 'vile and
dishonourable speeches, full of contumely to the King,' which, on the
word of Stukely and Manourie, he supposed Ralegh to have uttered.
Coventry stigmatized them as marking especial and flagitious
ingratitude. 'Never was subject so obliged to his Sovereign as he.'
Ralegh, in his reply, repudiated with his wonted courtesy the assertion
that he had received extraordinary marks of royal lenity. His release
from the Tower he claimed as a tardy reparation for a protracted wrong.
'I do verily believe,' he exclaimed, 'that his Majesty doth in his own
conscience clear me of all guiltiness in regard to my conviction in the
year 1603. Indeed, I know that his Majesty hath been heard to say, in
speaking of these proceedings, that he would not wish to be tried by a
Middlesex jury.' He added Dr. Turner's report to him of Mr. Justice
Gawdy's death-bed censure of his condemnation. But he denied that he had
in fact uttered the abuse imputed to him by Stukely and Manourie. His
only ill speech of his Majesty had been: 'My confidence in the King is
deceived.' It was deceived. The charge that he had never meant to work a
mine he met by references to refiners, and tools and assaying apparatus,
costing him L2000, that he had conveyed with him. To the accusation that
he had broken the King's peace with Spain, he retorted that the
aggression proceeded from the Spaniards. He had not directed any attack
upon them. His only object in despatching an armed force had been that
the soldiers might take up a position between the town and the Mine
while the rest were at work. The mere attempt to reach the Mine was no
offence, unless Spaniards had an absolute territorial title to the soil
of the region in which it lay.
[Sidenote: _Designs against the Plate Fleet._]
[Sidenote: _The Explanation._]
The Commission could not affirm an absolute claim on behalf of Spain. It
was reduced to rely upon accusations that he had from the beginning
harboured piratical intentions, and counted upon the assistance of
France for their accomplishment. Sir John Ferne, who had left him,
reported to the Commission talk by him as if he had meant to turn
buccaneer, and also to enter the French service. Apparently that was the
belief of some of his officers, though several may have alleged it
simply to excuse their desertion, and to guard against counter charges
by him. In any case the theory seems to have been founded upon the most
superficial proofs. Of any piratical acts of his, or practical service
rendered to France, he could confidently challenge the Law Officers to
produce the smallest proof. But on the solitary charge of a design to
seize the plate fleet the Commission was in possession of a morsel of
corroborative evidence. It confronted him with another of his runaway
captains, Pennington, and also with Wareham St. Leger. They testified to
admissions of his intention to lie in wait for the plate fleet.
According to Caesar's note, after their testimony he could no longer
adhere to his denial, and 'confessed that he proposed the taking of the
Mexico fleet if the mine failed.' How far he positively admitted it, and
how far Caesar inferred to his own satisfaction from Ralegh's mode of
receiving the evidence that he could not really contradict it, cannot be
ascertained. As has been remarked, all depends on how the thing was
said. If Caesar's summary of the proceedings had been handed down in a
more complete form, it might itself have impressed posterity otherwise
than the evidence impressed him. By the allusions in the Royal
_Declaration_ it may be seen that Ralegh was far from being overwhelmed
by St. Leger's and Pennington's testimony. In the first place he appears
to have asserted that the words concerning the plate fleet were spoken
after, and not before, the search for the Mine had been defeated, and
that the plan was propounded by him merely to keep the fleet together
through the tempting vision. If he had ever before said anything to the
same effect, 'it was but discourse at large.' Without regard to the
strength or weakness, the sufficiency or insufficiency, of his defence,
as to which Mr. Spedding concedes that the remains of Caesar's note
afford scanty materials for a conclusion, there can be no question that
the Commissioners paid little respect to his arguments. If they ever
embodied their opinion, as Mr. Spedding thinks probable, in words, he
certainly is correct in his conjecture that it was wholly condemnatory.
According to Ulloa's account, Bacon wound up the proceedings by
addressing a solemn rebuke to Ralegh for the injury he had done to
Spanish territories, and by telling him that he must die. Perhaps,
however, the Spaniard's informant antedated the Lord Chancellor's
announcement, which may be identical with that, hereafter to be
mentioned, of October 24. At all events, a privy seal seems to have been
sent to the Judges, 'forthwith to order execution.' Jacobean Judges
could commit monstrous injustices. They liked to be unjust according to
precedent. They demurred, and a conference of them was called. At this,
on October 23, it was decided that a privy seal was not enough. It was
determined that Ralegh should be brought to bar on a writ of Habeas
Corpus addressed to the Lieutenant of the Tower. He was to be asked if
he could urge any objection to an award of execution; 'for he might have
a pardon; or he might say that he was not the same person.' As a
preliminary he was called next day before the Council at Whitehall. He
was informed that he was to be executed on his old sentence. His reply
is not recorded. If he argued on behalf of his life, it was to no
purpose. He was more fortunate with his petition that he might be
beheaded, and not hanged. For that amount of benevolence the Council
intimated its willingness to hold itself responsible.
[Sidenote: _Before the King's Bench._]
A second privy seal came to the Justices of the King's Bench. Their
Chief, Coke's successor, much more polished and discreet than he, was
Sir Henry Montagu, afterwards Lord Treasurer, Lord President, and Earl
of Manchester. His Court was simply commanded to proceed according to
law, as it was called. Ralegh had been suffering from an attack of ague.
On October 28, at eight, he was awakened with the fit still upon him. He
was served with a summons to appear forthwith at Westminster. As he
passed along the corridor an old servant, Peter, met him. While he was
under Wilson's custody his own domestics had been withdrawn. They had
since been allowed to attend him. One of Peter's duties had been to comb
the hair, no longer flowing and thick, of his head, and his beard, for
an hour a day. Ralegh had left off the practice for a time. As he told
Wilson, 'he would know first who should have his head; he would not
bestow so much cost of it for the hangman.' Peter had doubtless at his
return brought his master back to the old usage. He now reminded Ralegh
that he was going forth with his head undressed. Ralegh replied with a
good-humoured question, 'Dost thou know, Peter, of any plaster that will
set a man's head on again, when it is off?'
[Sidenote: _Execution granted._]
He was at Westminster soon after nine. After the Winchester conviction
had been read, Yelverton, as Attorney-General, briefly demanded
execution. He was more courteous than Coke had been in his place, and
more dignified. 'Sir Walter Ralegh,' he said, 'hath been a statesman,
and a man who, in regard to his parts and quality, is to be pitied. He
hath been as a star at which the world hath gazed; but stars may fall,
nay, they must fall when they trouble the sphere wherein they abide. It
is therefore his Majesty's pleasure now to call for execution of the
former judgment, and I require order for the same.' Ralegh held up his
hand. He told the Court that 'his voice was grown weak by his late
sickness, and an ague he had at that instant upon him; therefore, he
desired the relief of a pen and ink.' Montagu told him he spoke audibly
enough. So he proceeded with his defence. He argued, as Bacon is
rumoured to have argued at Gray's Inn, that the King's commission for
the late voyage, with the power of life and death, amounted to a pardon.
Montagu interrupted him. Nothing about his voyage was, he said, to the
purport. Treason was never pardoned by implication. On this Ralegh put
himself on the King's mercy. He urged that in that judgment which was so
long past, both his Majesty was of opinion, and there were some present
who could witness, that he had hard usage. If his Majesty had not been
anew exasperated against him, he was sure he might, if he could by
nature, have lived a thousand and a thousand years before advantage
would have been taken of the judgment. Montagu answered that for all the
past fifteen years he had been as a man dead in the law; but the King in
mercy spared him. He might think it heavy if it were done in cold blood.
But new offences had stirred up his Majesty's justice to revive what the
law had formerly cast upon him. The Chief Justice continued in a solemn
strain, not without eloquence: 'I know that you have been valiant and
wise; and I doubt not but you retain both these virtues, for now you
shall have occasion to use them. Your faith hath heretofore been
questioned; but I am resolved you are a good Christian; for your book,
which is an admirable work, doth testify as much. I would give you
counsel; but I know you can apply it unto yourself far better than I am
able to give it you. Fear not death too much, nor fear death too little;
not too much lest you fail in your hope, nor too little lest you die
presumptuously.' He ended: 'Execution is granted.'
Ralegh said he had no desire 'to gain one minute of life; for now being
old, sickly, in disgrace, and certain to go to it, life was wearisome to
him.' But he prayed for a reasonable delay; he had something to do in
discharge of his conscience, something for the satisfaction of his
Majesty, and something for that of the world. Above all, he besought
their Lordships that, when he came to die, he might have leave to speak
freely at his farewell. He called God, before whom he was shortly to
appear, to witness that he was never disloyal, as he should justify
where he need not fear the face of any King on earth. So, with an
entreaty to them to pray for him, he was led away to the Gate-house.
[Sidenote: _The Queen's Intercession through Villiers._]
[Sidenote: _Other Petitioners._]
James and his confidants were not allowed to carry out their iniquity
without remonstrances. Already the Queen had exerted once more her
waning influence for Ralegh. He had appealed to her in solemn verse from
his prison in the name of his innocence and friendlessness. She was now
on her death-bed, dropsical, gloomy, and neglected. It was whispered
that she was disturbed in her reason. She preserved at least sufficient
intelligence to be horrified at the wrong which was being prepared, and
the stain threatened to the memory of her husband's reign. She responded
to Ralegh's petition by an earnest letter to George Villiers. She had,
at Archbishop Abbot's solicitation, recommended Villiers to the favour
of James. He exhibited the most obsequious deference to her as well as
to the King. Her letter, of which the precise date is unknown, is
addressed to 'My kind Dogge.' That was the name by which Villiers
affected to like both of them to call him. She wrote: 'If I have any
power or credit with you, I pray you let me have a trial of it, at this
time, in dealing sincerely and earnestly with the King, that Sir Walter
Ralegh's life may not be called in question.' Her intercession with her
truant Consort through his favourite was not more successful than her
pleadings with himself had been. As vainly young Carew Ralegh prayed,
without date or superscription, for the life of 'my poor father,
sometime honoured with many great places of command by the most worthy
Queen Elizabeth, the possessor whereof she left him at her death, as a
token of her goodwill to his loyalty.' The lad, now about thirteen, or
rather they who dictated his memorial, must have been very simple to
suppose that Elizabeth's favour was a passport to James's compassion. On
his death-bed James Montague, who died in July, 1618, Bishop of
Winchester, and is transformed by Wilson in his journal into the Earl of
Winchester, had previously begged of James one thing, the life of
Ralegh; 'a great offender,' Montague called him, 'who yet was dearly
respected of the late noble Queen.' In his choice of reasons the prelate
seems to have been as injudicious as the boy. As fruitlessly were
solicitations addressed to the King by Lady Ralegh, and by persons
described generally as in great favour and esteem with him. All were
repulsed. James, says Francis Osborn in his _Traditional Memoirs_, 'did
so far participate of the humour of a pusillanimous prince as to pardon
any sooner than those injured by himself.' He was unconscious of any
such malignity. It is pathetic to observe his utter freedom from
suspicion that posterity could help characterizing him as resolute,
wise, and just for his persecution of Ralegh, and not as a wretched
trickster.
Ralegh's own main anxiety was to settle his affairs in the first place,
and to secure that none suffered pecuniary detriment, much or little,
through his fault or negligence. When that was assured, he next longed
to clear his fame, in death, of every slur and taint. In November, for
discharge of his conscience, he gave to Wilson a testamentary note, that
he had never let to Captain Caulfeild land near Sherborne Castle, which
John Meere claimed by a counterfeit grant of his to Caulfeild. He
mentioned further that, before his departure from Cork to Guiana, he had
written in prejudice of H. Pyne's lease of Mogile Castle, and in favour
of Lord Boyle's claim. Since that time, better bethinking himself, he
desired the opinion he gave at Cork might be no evidence in law, and
that it should be left to other proofs on both sides. He requested Lady
Ralegh, 'if she should enjoy her goods,' to be kind to Hamon's wife, and
in any case to the wife of John Talbot, his servant in the Tower, who
had died in Guiana: 'I fear me, her son being dead, she will otherwise
perish.' He added that an account ought to be exacted from Stukely of
the tobacco he had sold at Plymouth, and also of the parcel he had sent
down the river, 'the Sunday that we took boat.'
[Sidenote: _Warrant for Execution._]
When he prayed a 'respite,' it was not that he was scared at the
approach of death. His mind was never brighter and happier. To this
moment may well be attributed, as it has been by popular tradition, his
composition of the couplet:
Cowards may fear to die, but courage stout,
Rather than live in snuff, will be put out.
Assuredly he was not one of the cowards. But his career had been
confused and tumultuous. He would have been glad of a little leisure and
quiet for unravelling some of the knots. He understood his enemies and
events too well to be surprised that his shrift was to be short. Before
his appearance at the King's Bench, Bacon had drawn the warrant for
execution, and James had signed it. Naunton wrote to Carleton, the
general depositary of confidential gossip, on October 28, that the
warrant for execution had been drawn up, and sent to the King for
signature; only, 'it had better not be talked about, as it is de futuro
contingente.' James, meanwhile, was restlessly hunting to and fro
between Oatlands, Theobalds, and Hampton Court. He was composing
meditations on the Lord's Prayer, and dedicating them to Villiers. The
warrant, though he was then in Hertfordshire, was dated the day of the
scene in the King's Bench. It was directed to the Chancellor. It
dispensed with 'the manner of execution according to his former
judgment, and released Sir Walter Ralegh of the same to be drawn,
hanged, and quartered.' The royal pleasure instead thereof was to have
the head only of the said Sir Walter Ralegh cut off at or within the
Palace of Westminster.