CH. XXVIII. do the work. A warrant was addressed to Wilson for Lady Ralegh's release from his supervision. By another he was discharged from attendance upon her husband. Ten days earlier he had pretended to pray the King's leave to give up his trust at the Tower. He said he was anxious to resume the arrangement of the State papers of the previous six or seven years. For Ralegh at all events it was a happy respite to be restored, for the last dozen days of his Tower life, to the honest keeping of Sir Allen, and the charitable offices of Lady Apsley.

CHAPTER XXIX.

A SUBSTITUTE FOR A TRIAL (October 22, 1618).

BACON, his fellow Commissioners, and the Law Officers CH. XXIX. 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 Two Courses. 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

CH. XXIX. as audience.

144

Objections to

an open Inquiry.

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.

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, CH. XXIX. 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 Cæsar'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.

Cæsar.

Cæsar, who was Sir Julius 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. Cæsar in particular would feel in no way bound to mechanical accuracy. His endeavour

CH. XXIX. 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.

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, Cæsar 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