When the first or second examination of Cobham was cited, Popham offered himself practically as a witness. He had heard Cobham say of Ralegh, as he signed his deposition: 'That wretch! That traitor Ralegh!' 'And surely,' added the Chief Justice, 'his countenance and action much satisfied me that what he had confessed was true, and that he surely thought Sir Walter had betrayed him.' Upon this Ralegh demanded to have his accuser, who was under the same roof, brought in, and examined face to face. Long before, and equally in vain, had his father-in-law, Sir Nicholas Throckmorton, called, as Sir Michael Foster mentions, for the witnesses against him 'to be brought face to face upon the trial.' Ralegh cited 1 Edward VI, that no man shall be condemned of treason, unless he be accused by two lawful accusers. He referred also to 1 and 2 Phil. and Mary, which ordained that an accuser of another of treason shall, if living and in the realm, be brought forth Call for Cobham. in person before the party arraigned, if he require it. The Canon of God itself in Deuteronomy, he urged, requires two witnesses. 'I beseech you then, my Lords, let Cobham be sent for. Let him be charged upon his soul, upon his allegiance to the King; and if he will then maintain his accusation to my face, I will confess myself guilty.' Popham's answer was: 'This thing cannot be granted; for then a number of treasons should flourish. The accuser may be drawn by practice while he is in prison.' Again and again Ralegh called for Cobham. Popham objected that he might prevaricate in order to procure the acquittal of his 'old friend.' 'To absolve me,' cried Ralegh sarcastically, 'me, the infuser of these treasons! Me, the cause of all his miseries, and the destruction of his house!' Coke asserted: 'He is a party and cannot come. The law is against it.' 'It is a toy to tell me of law,' was the reply, 'I defy law. I stand on the facts.' At one moment his passionate appeal seemed to have awed the Court into justice. Cecil asked if he would really abide by Cobham's words. 'Yes, in a main point.' 'If he say you have been the instigator of him to deal with the Spanish King, had not the Council cause to draw you hither?' asked Cecil. 'I put myself on it,' answered Ralegh. 'Then, call to God, Sir Walter,' said Cecil; 'and prepare yourself; for I verily believe my Lord will prove it.' Cecil knew of Cobham's recent reiteration of his charge, and supposed he could be trusted to insist upon it in Court. The Lords Commissioners, on consultation, doubted this, and finally decided to keep him back, and rely upon his letter.
Two Witnesses.
The trial pursued its course. Popham laid it down that 1 Edw. VI. c. 12, was repealed by 1 and 2 Phil. and Mary. Mr. Justice Gawdy corroborated this, uttering the solitary judicial dictum recorded of him, that 'the statute of Edward had been found inconvenient, and had therefore been repealed.' The provision cited by Ralegh from Philip and Mary's repealing statute, Popham ruled, applied solely to the specific treasons it mentioned. The Act ordained that the trial of treasons in general should follow common law procedure, as before the reign of Edward VI. But by common law one witness was sufficient. The confession of confederates was full proof, even though not subscribed, if it were attested by credible witnesses. Indeed, remarked Popham, echoing Coke, 'of all other proofs the accusation of one, who by his confession first accuseth himself, is the strongest. It hath the force of a verdict of twelve men.' Coke himself later, when, as Mr. Justice Michael Foster expresses it, 'his disgrace at Court had given him leisure for cool reflection,' intimated in his Institutes that the statute of Edward the Sixth had not been repealed, and that the obligation, as specified by it, to produce two witnesses to charges of treason remained in force. That was not the view of Elizabethan Judges. At the trial of the Duke of Norfolk it was laid down that the necessity no longer existed. In fairness it must be admitted that Popham and his brethren were bound to assume the law had then been correctly stated. They were equally bound by a series of precedents to allow written depositions to be treated as valid testimony. Only by the assent of counsel for the Crown was the oral examination of witnesses permitted. Ralegh did not struggle against the ruling. He could but plead, 'though, by the rigour and severity of the law, this may be sufficient evidence without producing the witness, yet, your Lordships, as ministers of the King, are bound to administer the law in equity.' 'No,' replied Popham: 'equity must proceed from the King; you can have only justice from us.' Coke triumphantly exclaimed: 'This dilemma of yours about two witnesses led you into treason.' Cobham's letter of July 29 to the Council about the money asked of Arenberg was read. In it occurred the expression: 'We did expect the general discontentment.' Coke's comment was: 'The peace pretended by Sir Walter Ralegh is merely jargon; for it is clear the money was for discontented persons. Now Ralegh was to have part of the money; therefore, he was a discontented person, and, therefore, a traitor.' That was the logic thought good enough at a trial for treason. So, to Ralegh's indignant A Spider of Hell. remonstrance at the use of the evidence of 'hellish spiders,' like Clarke and Watson, concerning 'the King and his cubs' as evidence against him, Coke answered: 'Thou hast a Spanish heart, and thyself art a spider of hell; for thou confessest the King to be a most sweet and gracious Prince, and yet thou hast conspired against him.' With equal relevancy he cited from the depositions: 'Brooke thinketh the project for the murder of the King was infused by Ralegh into his brother's head.' For Coke this was valid evidence against Ralegh.
On rolled the muddy stream of inconsequential testimony, and of reasoning to match; the 'irregular ramble,' as Sir John Hawles has termed it. Snagge's book was discussed; how Ralegh borrowed it from Burleigh's library; and how Cobham had it, whether by gift from Ralegh, or by borrowing it when Ralegh was asleep. To Ralegh the whole appeared the triviality it was. 'It is well known,' said he, 'that there came out nothing in those times but I had it. I believe they will find in my house almost all the libels writ against the late Queen.' As utterly irrelevant against him was the introduction of Arabella Stuart to deny her knowledge of any plots in her pretended interest. Worse than irrelevant was pilot Dyer's gossip with a gentleman at Lisbon, to whom Dyer had observed that the King of England was shortly to be crowned. 'Nay,' saith the Portugal, Serjeant Phillips. 'that shall never be; for his throat will be cut by Don Ralegh and Don Cobham before he be crowned.' 'What will you infer upon that?' asked Ralegh. 'That your treason hath wings,' replied Coke. Hereupon Serjeant Phillips relieved Coke, and almost outdid him. Phillips argued that the object of procuring money was to raise up tumults in Scotland, and to take the lives of his Majesty and his issue. For those purposes a treasonable book against the King's right to the Crown was 'divulged.' Commencing with the unproved allegation that 'Sir Walter Ralegh confesseth my Lord Cobham guilty of all these treasons,' Phillips proceeded: 'The question is, whether Ralegh be guilty, as joining with or instigating him. If Lord Cobham's accusation be true, he is guilty. If not, he is clear. Ralegh hath no answer. Of as much wit as the wit of man can devise, he useth his bare denial. A denial by the defendant must not move the jury.' Nothing could be more crushing than the calm rejoinder: 'You have not proved any one thing by direct proofs, but all by circumstances. I appeal to God and the King on this point whether Cobham's accusation be sufficient to condemn me.'
So weak was the case for the prosecution that to this stage, by the admission of a reporter of the trial, the result was very doubtful. Coke, however, with the cognizance, it may be presumed, of the Court, had prepared a dramatic surprise. Cobham, the day before, had written or signed a repetition of his charge. Ralegh's account of the transaction at the trial was that Lady Kildare, Lady Ralegh's enemy, had persuaded Cobham to accuse Ralegh, as the sole way of saving his own life. A letter from her to him goes some length towards confirming the allegation. She writes: 'Help Cobham's
New Statement. yourself, if it may be. I say no more; but draw not the weight of others' burdens.' According to another, and not very likely, story, told by Sir Anthony Welldon in his Court of King James, Cobham subsequently stated that Waad had induced him by a trick to sign his name on a blank page, which afterwards was thus filled in. The paper alleged a request by Ralegh to obtain for him a pension of £1500 for intelligence. 'But,' it ambiguously proceeded, 'upon this motion for £1500 per annum for intelligence I never dealt with Count Arenberg.' 'Now,' added the writer, as if it were a conclusion from premisses, 'as by this may appear to your Lordships, he hath been the original cause of my ruin. For, but by his instigation, I had never dealt with Count Arenberg. And so hath he been the only cause of my discontentment; I never coming from the Count, or Court, but still he filled and possessed me with new causes of discontentments.' The reading of the statement was set in a more than usually decorated framework of Coke's amenities. Ralegh throughout the trial had been for the King's Attorney an 'odious fellow;' the 'most vile and execrable traitor.' He had been stigmatized as 'hateful to all the realm for his pride,' to which Ralegh had retorted: 'It will go near to prove a measuring cast, Mr. Attorney, between you and me.' With Cobham's deposition in his hand, Coke cried: 'I will lay thee on thy back for the confidentest traitor that ever came to a bar.' When Cecil prayed him not to be so impatient, Coke flew out: 'If I may not be patiently heard, you will encourage traitors.' Sulkily down he sat, and would speak no more till the Commissioners entreated him to go on. Resuming, he criticized Ralegh's letter to Cobham in the Tower, which was next read: 'O damnable Atheist! He hath learned some text of Scripture to serve his own purpose. Essex died the child of God. Thou wast by.
Et lupus et turpes instant morientibus ursae.'
Being asked what he said of Cobham's statement to the Lords, 'I 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.'
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 Exaggeration of
its Importance. 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 had been incontrovertible, it ought to have been held worthless 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 faint-hearted 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 statement that he had solicited, or been offered by Cobham, a 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 The Prior
Recantation. 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 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, proved the writer a perjured liar either in the Tower or at Winchester.
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.