Chapter 21

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.