CHAPTER XXIX.

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.

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