The leading members of the 'Bye' were tried and convicted two days before Raleigh. Cobham and Grey were tried and convicted by the Chancellor sitting as Lord Steward soon after. The two priests and Brooke were hung. Cobham, Grey, and Markham were brought to the scaffold that they might be induced to make their dying declarations, and were then granted their lives. Cobham, when in instant expectation of death, persisted in avowing Raleigh's guilt.
Beyond the interest that attaches to Raleigh's trial from the historical and personal points of view, it is interesting as showing the methods in which an important trial was conducted at the beginning of the seventeenth century. The most remarkable feature of the trial itself in the eyes of a modern reader, beyond its extreme informality, is that Raleigh was condemned on the statement of a confederate, who spoke under extreme pressure, with every inducement to exculpate himself at Raleigh's expense, and whom Raleigh never had a chance of meeting. The reasons given by Popham for refusing to allow Cobham to be called as a witness at the trial are instructive, and, as Professor Gardiner points out, prove that in political trials at all events, when the government had decided that the circumstances of the case were sufficient to justify them in putting a man on his trial, the view of the court before which he was tried was that he was to be condemned unless he succeeded in proving his innocence. This fact alone leads the modern Englishman to sympathise with Raleigh, and this feeling is naturally increased by what Sir James Stephen calls the 'rancorous ferocity' of Coke's behaviour. The second cause added to Raleigh's popularity, and the political reasons which led to his trial are probably what produced the same feelings among his contemporaries. It is beyond my present purpose to discuss how far Raleigh was really guilty of treason, even were I competent to express any opinion on the subject worth attending to. But for the credit of the lawyers who presided at the trial, I may point out that the assertions that the statute of Edward vi., requiring two witnesses in cases of treason, had been repealed, and that the trial at common law was by examination, and not by a jury and witnesses, were not as incomprehensibly unjust as they appear to us. A statute of Philip and Mary enacted that cases of treason should be tried according to the due order and course of common law, and the statute of Edward vi., being regarded as an innovation upon the common law, was thus held to be implicitly repealed. The rule as to the two witnesses seems to have been construed as referring to trial by witnesses as it existed under the civil law, which was taken to require two eye- or ear-witnesses to the actual fact constituting the crime. With such a trial, trial by jury was frequently contrasted, and if the rigour of the civil law was not to be insisted on, the only alternative seemed to be that the jury should form their opinion as they could, if not from their own knowledge, then from any materials that might be laid before them. This naturally did away with any rules of evidence as we understand them, and consequently Cobham's confession became as good evidence as the jury could expect to have. In fact, as Sir James Stephen says, 'The only rules of evidence as to matters of fact recognised in the sixteenth century seem to have been the clumsy rules of the mediæval civil law, which were supposed to be based on the Bible. If they were set aside, the jury were absolute, practically absolute, and might decide upon anything which they thought fit to consider evidence.' See further Gardiner's History, vol. i. pp. 108-140; and Stephen's History of the Criminal Law, vol. i. pp. 333-337.
Sir Walter Raleigh was tried at Winchester on the 17th of November 1603 before a commission consisting of Thomas Howard,[3] Earl of Suffolk, Lord Chamberlain; Charles Blunt,[4] Earl of Devon; Lord Henry Howard,[5] afterwards Earl of Northampton; Robert Cecil,[6] Earl of Salisbury; Edward, Lord Wotton of Morley; Sir John Stanhope, Vice-Chamberlain; Lord Chief-Justice of England Popham;[7] Lord Chief-Justice of the Common Pleas Anderson;[8] Justices Gawdie and Warburton; and Sir W. Wade.
The indictment charged Raleigh with high treason by conspiring to deprive the King of his government; to alter religion; to bring in the Roman Superstition; and to procure foreign enemies to invade the kingdom. The facts alleged to support these charges were that Lord Cobham,[9] on the 9th of June 1603, met Raleigh at Durham House in London, and conferred with him as to advancing Lady Arabella Stuart[10] to the throne; that it was there agreed that Cobham should, with Aremberg, the ambassador of the Archduke of Austria, bargain for a bribe of 600,000 crowns; that Cobham should go to the Archduke Albert, to procure his support for Lady Arabella, and from him to the King of Spain; that Lady Arabella should write three letters to the Archduke, to the King of Spain, and to the Duke of Savoy, promising to establish peace between England and Spain, to tolerate the Popish and Roman superstition, and to be ruled by them as to her marriage. Cobham was then to return to Jersey, where he would find Raleigh and take counsel with him as to how to distribute Aremberg's bribe. On the same day Cobham told his brother Brook of all these treasons, and persuaded him to assent to them; afterwards Cobham and Brook spoke these words, 'That there would never be a good world in England till the King (meaning our sovereign lord) and his cubs (meaning his royal issue) were taken away.' Further Raleigh published a book to Cobham, written against the title of the King, and Cobham published the same book to Brook. Further, Cobham, on the 14th of June, at Raleigh's instigation, moved Brook to incite Lady Arabella to write the letters as aforesaid. Also on the 17th of June Cobham, at Raleigh's instigation, wrote to Aremberg through one Matthew de Lawrency, to obtain the 600,000 crowns, which were promised to him on the 18th of June, and of which Cobham promised 8000 to Raleigh and 10,000 to Brook.
To this indictment Raleigh pleaded Not Guilty; and a jury was sworn, to none of whom Raleigh took any objection.
Heale, the King's Serjeant, then opened the case very shortly, merely reciting the facts mentioned in the indictment, concluding: 'Now, whether these things were bred in a hollow tree, I leave him to speak of, who can speak far better than myself; and so sat down again.
Attorney-General (Sir Ed. Coke[11])—I must first, my lords, before I come to the cause, give one caution, because we shall often mention persons of eminent places, some of them great monarchs: whatever we say of them, we shall but repeat what others have said of them; I mean the Capital Offenders, in their Confessions. We professing law must speak reverently of kings and potentates. I perceive these honourable lords, and the rest of this great assembly, are come to hear what hath been scattered upon the wrack of report. We carry a just mind, to condemn no man, but upon plain Evidence.
Here is Mischief, Mischief in summo gradu, exorbitant Mischief. My Speech shall chiefly touch these three points: Imitation, Supportation, and Defence. The Imitation of evil ever exceeds the Precedent; as on the contrary, imitation of good ever comes short. Mischief cannot be supported but by Mischief; yea, it will so multiply, that it will bring all to confusion. Mischief is ever underpropped by falsehood or foul practices: and because all these things did concur in this Treason, you shall understand the main, as before you did the bye. The Treason of the bye consisteth in these Points: first that the lord Grey, Brook, Markham, and the rest, intended by force in the night to surprise the king's court; which was a Rebellion in the heart of the realm, yea, in the heart of the heart, in the Court. They intended to take him that is a sovereign, to make him subject to their power, purposing to open the doors with musquets and cavaliers, and to take also the Prince and Council: then under the king's authority to carry the King to the Tower; and to make a stale of the admiral. When they had the King there, to extort three things from him, first, A Pardon for all their Treasons: Secondly, A Toleration of the Roman Superstition; which their eyes shall sooner fall out than they shall ever see; for the king hath spoken these words in the hearing of many, 'I will lose the crown and my life, before ever I will alter Religion.' And thirdly, To remove Counsellors. In the room of the Lord Chancellor, they would have placed one Watson, a priest, absurd in Humanity and ignorant in Divinity. Brook, of whom I will speak nothing, Lord Treasurer. The great Secretary must be Markham; Oculus patriæ. A hole must be found in my Lord Chief-Justice's coat. Grey must be Earl-Marshal, and Master of the Horse, because he would have a table in court; marry, he would advance the earl of Worcester to a higher place. All this cannot be done without a multitude: therefore Watson the priest tells a resolute man that the king was in danger of Puritans and Jesuits; so to bring him in blindfold into the action saying, That the king is no king till he be crowned; therefore every man might right his own wrongs: but he is rex natus, his dignity descends as well as yours, my lords. Then Watson imposeth a blasphemous Oath, that they should swear to defend the king's person; to keep secret what was given them in charge, and seek all ways and means to advance the Catholic Religion. Then they intend to send for the Lord Mayor and the Aldermen, in the king's name, to the Tower; lest they should make any resistance, and then take hostages of them; and to enjoin them to provide for them victuals and munition. Grey, because the king removed before Midsummer, had a further reach to get a Company of Sword-men to assist the action: therefore he would stay till he had obtained a regiment from Ostend or Austria. So you see these Treasons were like Sampson's foxes, which were joined in their tails, though their heads were severed.
Raleigh—You Gentlemen of the Jury, I pray remember, I am not charged with the Bye, being the Treason of the priest.