Popham's

and blasphemous opinions. 'You will do well,' the virtuous CH. XIX. Chief Justice exhorted him, 'before you go out of the world, to 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.

When Popham had ended Ralegh spoke a few words. He 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. On the scaffold he could say nothing for Cobham; Cobham might say much for him. It was possible that, when nothing more was to be gained by falsehoods, his recreant friend would clear his fame once for all. Then he quitted the hall, accompanying Sir Benjamin Tichborne, the High Sheriff, to the prison, according to Sir Thomas Overbury, 'with admirable erection, yet in such sort as a condemned man should.'

CHAP. XX.

Exception ally

iniquitous.

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 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.

He was alleged to have listened to disclosures by Cobham

The Spanish Pension.

of a scheme for obtaining money from the Archduke, or the CHAP. XX. 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 com

James and

CHAP. XX. missioned this suspected plotter of treason James wrote in August, 1604: 'We thank you most affectionately for the Arenberg. 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 CHAP. XX. 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.

Moral Inno

The question of Ralegh's moral innocence is not the same Legal and as that of his legal innocence. All writers answer the latter cence. 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

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