Bacon, his fellow Commissioners, and the Law Officers 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 Two Courses. 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 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 as audience. 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.
Objections to an
open Inquiry.
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, 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 Sir Julius Cæsar. 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, who was 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 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.
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 Charges and
Defence. 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 of all guiltiness in regard to my conviction in the year 1603. Indeed, I know that his Majesty hath been heard to say, in speaking of these proceedings, that he would not wish to be tried by a Middlesex jury.' He added Dr. Turner's report to him of Mr. Justice Gawdy's death-bed censure of his condemnation. But he denied that he had in fact uttered the abuse imputed to him by Stukely and Manourie. His only ill speech of his Majesty had been: 'My confidence in the King is deceived.' It was deceived. The charge that he had never meant to work a mine he met by references to refiners, and tools and assaying apparatus, costing him £2000, that he had conveyed with him. To the accusation that he had broken the King's peace with Spain, he retorted that the aggression proceeded from the Spaniards. He had not directed any attack upon them. His only object in despatching an armed force had been that the soldiers might take up a position between the town and the Mine while the rest were at work. The mere attempt to reach the Mine was no offence, unless Spaniards had an absolute territorial title to the soil of the region in which it lay.
The Commission could not affirm an absolute claim on behalf of Spain. It was reduced to rely upon accusations that he had from the beginning harboured piratical intentions, and counted upon the assistance of France for their accomplishment. Sir John Ferne, who had left him, reported to the Commission talk by him as if he had meant to turn buccaneer, and also to enter the French service. Apparently that was the belief of some of his Designs against
the Plate Fleet. officers, though several may have alleged it simply to excuse their desertion, and to guard against counter charges by him. In any case the theory seems to have been founded upon the most superficial proofs. Of any piratical acts of his, or practical service rendered to France, he could confidently challenge the Law Officers to produce the smallest proof. But on the solitary charge of a design to seize the plate fleet the Commission was in possession of a morsel of corroborative evidence. It confronted him with another of his runaway captains, Pennington, and also with Wareham St. Leger. They testified to admissions of his intention to lie in wait for the plate fleet. According to Cæsar's note, after their testimony he could no longer adhere to his denial, and 'confessed that he proposed the taking of the Mexico fleet if the mine failed.' How far he positively admitted it, and how far Cæsar inferred to his own satisfaction from Ralegh's mode of receiving the evidence that he could not really contradict it, cannot be ascertained. As has been remarked, all depends on how the thing was said. If Cæsar's summary of the proceedings had been handed down in a more The Explanation. complete form, it might itself have impressed posterity otherwise than the evidence impressed him. By the allusions in the Royal Declaration it may be seen that Ralegh was far from being overwhelmed by St. Leger's and Pennington's testimony. In the first place he appears to have asserted that the words concerning the plate fleet were spoken after, and not before, the search for the Mine had been defeated, and that the plan was propounded by him merely to keep the fleet together through the tempting vision. If he had ever before said anything to the same effect, 'it was but discourse at large.' Without regard to the strength or weakness, the sufficiency or insufficiency, of his defence, as to which Mr. Spedding concedes that the remains of Cæsar's note afford scanty materials for a conclusion, there can be no question that the Commissioners paid little respect to his arguments. If they ever embodied their opinion, as Mr. Spedding thinks probable, in words, he certainly is correct in his conjecture that it was wholly condemnatory.
According to Ulloa's account, Bacon wound up the proceedings by addressing a solemn rebuke to Ralegh for the injury he had done to Spanish territories, and by telling him that he must die. Perhaps, however, the Spaniard's informant antedated the Lord Chancellor's announcement, which may be identical with that, hereafter to be mentioned, of October 24. At all events, a privy seal seems to have been sent to the Judges, 'forthwith to order execution.' Jacobean Judges could commit monstrous injustices. They liked to be unjust according to precedent. They demurred, and a conference of them was called. At this, on October 23, it was decided that a privy seal was not enough. It was determined that Ralegh should be brought to bar on a writ of Habeas Corpus addressed to the Lieutenant of the Tower. He was to be asked if he could urge any objection to an award of execution; 'for he might have a pardon; or he might say that he was not the same person.' As a preliminary he was called next day before the Council at Whitehall. He was informed that he was to be executed on his old sentence. His reply is not recorded. If he argued on behalf of his life, it was to no purpose. He was more fortunate with his petition that he might be beheaded, and not hanged. For that amount of benevolence the Council intimated its willingness to hold itself responsible.
A second privy seal came to the Justices of the King's Bench. Their Chief, Coke's successor, much more polished and discreet than he, was Sir Henry Montagu, afterwards Lord Treasurer, Lord President, and Earl of Manchester. His Court was simply commanded to proceed according to law, as it was Before the
King's Bench. called. Ralegh had been suffering from an attack of ague. On October 28, at eight, he was awakened with the fit still upon him. He was served with a summons to appear forthwith at Westminster. As he passed along the corridor an old servant, Peter, met him. While he was under Wilson's custody his own domestics had been withdrawn. They had since been allowed to attend him. One of Peter's duties had been to comb the hair, no longer flowing and thick, of his head, and his beard, for an hour a day. Ralegh had left off the practice for a time. As he told Wilson, 'he would know first who should have his head; he would not bestow so much cost of it for the hangman.' Peter had doubtless at his return brought his master back to the old usage. He now reminded Ralegh that he was going forth with his head undressed. Ralegh replied with a good-humoured question, 'Dost thou know, Peter, of any plaster that will set a man's head on again, when it is off?'
He was at Westminster soon after nine. After the Winchester conviction had been read, Yelverton, as Attorney-General, briefly demanded execution. He was more courteous than Coke had been in his place, and more dignified. 'Sir Walter Ralegh,' he said, 'hath been a statesman, and a man who, in regard to his parts and quality, is to be pitied. He hath been as a star at which the world hath gazed; but stars may fall, nay, they must fall when they trouble the sphere wherein they abide. It is therefore his Majesty's pleasure now to call for execution of the former judgment, and I require order for the same.' Ralegh held up his hand. He told the Court that 'his voice was grown weak by his late sickness, and an ague he had at that instant upon him; therefore, he desired the relief of a pen and ink.' Montagu told him he spoke audibly enough. So he proceeded with his defence. He argued, as Bacon is rumoured to have argued at Gray's Inn, that the King's commission for the late voyage, with the power of life and death, amounted to a pardon. Montagu interrupted him. Nothing about his voyage was, he said, to the purport. Treason was never pardoned by implication. On this Ralegh put himself on the King's mercy. He urged that in that judgment which was so long past, both his Majesty was of opinion, and there were some present who could witness, that he had hard usage. If his Majesty had not been anew exasperated against him, he was sure he might, if he could by nature, have lived a thousand and a thousand years before advantage would Execution granted. have been taken of the judgment. Montagu answered that for all the past fifteen years he had been as a man dead in the law; but the King in mercy spared him. He might think it heavy if it were done in cold blood. But new offences had stirred up his Majesty's justice to revive what the law had formerly cast upon him. The Chief Justice continued in a solemn strain, not without eloquence: 'I know that you have been valiant and wise; and I doubt not but you retain both these virtues, for now you shall have occasion to use them. Your faith hath heretofore been questioned; but I am resolved you are a good Christian; for your book, which is an admirable work, doth testify as much. I would give you counsel; but I know you can apply it unto yourself far better than I am able to give it you. Fear not death too much, nor fear death too little; not too much lest you fail in your hope, nor too little lest you die presumptuously.' He ended: 'Execution is granted.'
Ralegh said he had no desire 'to gain one minute of life; for now being old, sickly, in disgrace, and certain to go to it, life was wearisome to him.' But he prayed for a reasonable delay; he had something to do in discharge of his conscience, something for the satisfaction of his Majesty, and something for that of the world. Above all, he besought their Lordships that, when he came to die, he might have leave to speak freely at his farewell. He called God, before whom he was shortly to appear, to witness that he was never disloyal, as he should justify where he need not fear the face of any King on earth. So, with an entreaty to them to pray for him, he was led away to the Gate-house.