CH. XIX. say,' answered Ralegh, 'that Cobham is a base, dishonourable, poor soul!' 'Is he base?' retorted Coke. 'I return it into thy throat on his behalf. But for thee he had been a good subject.' tion of its The document did not amount to a confession by Cobham even of his own treason. At highest it was evidence against him of negotiations with Count Arenberg which might have been 'warrantable,' and of discontent which need not have been in the least criminal. If such secondary testimony had been legal when its author was available as a witness, and if its statements Exaggera had been incontrovertible, it ought to have been held worthless Importance. against Ralegh. Nothing, so far as appears even from the paper, was ever done towards the gratification of the desire for a foreign pension imputed to him. Within limits, Cobham's allegation that Ralegh had fomented his anger against the new state of things is plausible enough. It would be strange if the two disgraced favourites did not at their frequent meetings club and inflame their mutual pique. Obviously, apart from acts, of which there was no evidence, no irritation by Ralegh, however envenomed, as it was not shown to have been, of Cobham's discontent, could in him have been treason. Judged by all sound laws of evidence, the testimony of the statement was as flimsy as all the rest of the proofs. To attach importance to it was a burlesque of justice. It was treated as demonstrative by a packed Bench, a Bar hungering for place, and a fainthearted jury, anxious above all things to vindicate authority, and not caring to discriminate among the prisoners on the charges against them. To the whole court it came like a godsend. The author of the fullest report, that which is preserved in the Harleian MSS., expresses the sentiment of Jacobean lawyers: This confession gave a great satisfaction, and cleared all the former evidence, which before stood very doubtful.' In the reporter's judgment it overwhelmed the defendant himself. Reasonably Ralegh 'was much amazed.' He could not have anticipated Cobham's retractation of his retractation. He perceived the new peril in which he was plunged by the Recantation. statement that he had solicited, or been offered by Cobham, a CH. XIX. Spanish pension, though, as he told the King in January, 1604, so little account had he made at the time of the conversation in which the offer was made, that he never remembered any such thing till it was at his trial objected against him. He felt public opinion shaken. His faith in himself was not weakened. 'By and by,' says the reporter, 'he seemed to gather his spirits again.' Pulling out of his pocket the recantation, the second, which The Prior Cobham had addressed to him from the Tower, and attested by his hope of salvation and God's mercy on his soul, he insisted upon having it too read in court. Hereupon, says the reporter, 'was much ado, Mr. Attorney alleging that the letter was politicly and cunningly urged from the Lord Cobham,' and that the latest paper was 'simply the truth.' When Ralegh raised the natural objection that a statement written by Cobham on the eve of his own trial might be supposed to have been extorted in some sort by compulsion, Coke appealed to Popham to interrogate the Commissioners. Devonshire, as their mouthpiece, declared to the jury that it was 'mere voluntary,' and had not been written under a promise of pardon. But Cecil supported Ralegh in the demand that the jury should have before it the earlier letter also. Coke, in a report printed in 1648 under the name of Sir Thomas Overbury, is represented as exclaiming: 'My Lord Cecil, mar not a good cause.' Cecil replied: 'Master Attorney, you are more peremptory than honest; you must not come here to show me what to do.' Throughout he had been careful to blend the friend with the judge, so far as professions of regret went. He had spoken of the former dearness between himself and this gentleman, tied upon the knot of his virtues. He had declared that his friendship was not extinguished, but slaked. He had vowed himself still his friend, excepting faults, I call them no worse.' Now he strained that friendship to the extent of the simple justice of undertaking the duty, 'because he only knew Cobham's hand,' of reading out the letter, which, if the construction put by the prosecution on the other paper were correct, CH. XIX. proved the writer a perjured liar either in the Tower or at Winchester. 1441 The Verdict and Judg ment. Coke need not have feared the consequences. Both judges and jurymen had comfortably made up their minds. They were not to be moved by so slight a thing as a contradiction of Cobham in one place by Cobham in another. So prejudiced were they that the Tower letter does not appear to have produced any effect at all. Ralegh, at all events, could do no more. He had striven for many hours, and was utterly exhausted. Without more words he let the jury be dismissed to consider its verdict. In a quarter of an hour it returned into court with a verdict of guilty of high treason. Ralegh received the decision with dignity: 'My Lords,' said he, 'the jury hath found me guilty. They must do as they are directed. I can say nothing why judgment should not proceed. You see whereof Cobham hath accused me. You remember his protestation that I was never guilty. I desire the King should know the wrong I have been done to since I came hither.' Then Popham pronounced judgment. Addressing Ralegh, he said: 'In my conscience I am persuaded Cobham hath accused you truly. You cannot deny that you were dealt with to have a pension of £1500 a year to be a spy for Spain; therefore, you are not so true to the King as you have protested yourself to be.' He lamented the fall of one of 'so great parts,' who 'had showed wit enough this day,' 'who might have lived well with £3000 a year; for so I have heard your revenues to be.' Spite and covetousness he held to have been Ralegh's temptations. Yet the King could not be blamed for wishing to have for Captain of the Guard 'one of his own knowledge, whom he might trust,' or for desiring no longer to burden his people with a wine monopoly for Ralegh's particular good. Popham embellished his confused discourse, partly apologetic, and partly condemnatory, but not intentionally brutal or malevolent, by a glance at Ralegh's reputed free-thinking. He had been taxed, said Popham, by the world with the defence of most heathenish and blasphemous opinions. 'You will do well,' the virtuous CH. XIX. Chief Justice exhorted him, 'before you go out of the world, to Popham's give satisfaction therein. Let not any devil,' or, according to the Exhortation. Harleian MSS. version, 'Hariot nor any such doctor, persuade you there is no eternity in Heaven; if you think thus, you shall find eternity in Hell fire.' Ralegh had warned Cobham against confessions. Let him not apply the advice to himself. 'Your conceit of not confessing anything is very inhuman and wicked. In this world is the time of confessing, that we may be absolved at the Day of Judgment.' By way of peroration he added: 'It now comes into my mind why you may not have your accuser face to face. When traitors see themselves must die, they think it best to see their fellow live, that he may commit the like treason again, and so in some sort seek revenge.' Lastly, he pronounced the savage legal sentence. He When Popham had ended Ralegh spoke a few words. prayed that the jury might never have to answer for its verdict. He only craved pardon for having concealed Lord Cobham's offer to him, which he did through a confidence that he had diverted him from those humours.' Praying then permission to speak to Lords Suffolk, Devonshire, Henry Howard, and Cecil, he entreated their intercession, which they promised, Cecil with tears, that his death might be honourable and not ignominious. He is alleged further to have requested their mediation with the King for a pardon, or, at least, that, if Cobham too were convicted, and if the sentence were to be carried out, Cobham might die first. The petition was not an ebullition of vindictiveness. It had a practical purpose. CHAP. XX. ally CHAPTER XX. JUSTICE AND EQUITY OF THE CONVICTION. 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 Exception- been as ill-treated; and the fact amounts to a terrible indictment iniquitous. 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. He was alleged to have listened to disclosures by Cobham |