liberty, so long as the means employed were innocent towards others. But where a man may be excused for breaking a window to escape from confinement, he cannot be pardoned for committing a murder or setting a house on fire. And the act of which Ralegh stood convicted by his own admission, as well as by the uncontradicted evidence of all the witnesses, included the committing of many murders and the setting on fire of many houses; besides a distinct breach of his own faith pledged to the King, involving a breach of the faith of England, pledged to a neighbour with whom she was at peace. Englishmen seem to find a difficulty in understanding the true character of this act. Ralegh himself could see no more harm in burning a town than in carrying away a basketful of ore out of an unopened mine. If the territory did not belong of right to the King (he pleaded) what right had he to take the gold? If it did, what wrong did he commit in burning the town ? Jardine calls the charges "frivolous (p. 487), vague, and senseless" (p. 519); and in relating the fact (p. 481), though he mentions the skirmish, and that the Spaniards were driven from St. Thome, forgets to mention the burning and pillage which followed,-regarding it apparently as an immaterial circumstance. Even Mr. Gardiner, who fully acknowledges the iniquity of the whole proceeding, does not appear to consider the killing and burning as any aggravation; for he can see no difference between the guilt of the King in granting the Commission and the guilt of those who made that use of it.2 Yet it is quite certain that the King did not either intend or anticipate any aggression upon Spaniards: and a man cannot be thought morally guilty of an act which he neither meant nor foresaw, however he might be legally answerable. It is possible however by a very simple device to bring the true character of the act home to any Englishman. Let him only imagine an English settlement treated in the same way upon similar pretences by a Spaniard. He will see at once that it is a crime for which somebody should be punished, and he will probably be of opinion that the person who should be punished is the person by whose authority it was done.

Now Ralegh, though he might possibly have succeeded in trans

"Either the country is the King's, or it is not the King's: if it be our King's, I have not then offended. If it be not our King's I must have perished if I had but taken gold out of the mines there, though I had found no Spaniard in the country." Apology, p. 90.

2 If he pardoned Ralegh,

he must announce to the world that he was regardless of his plighted word; If he sent Ralegh to the scaffold, he was condemning himself for the part which he had taken, in spite of the warning of Gondomar, in promoting an enterprise, of which he now bitterly repented. If justice demanded the execution of Ralegh, it also demanded his own." P. Charles and the Spanish Marriage, vol. i. p. 141.

ferring the responsibility to somebody else, was undoubtedly the person responsible in the first instance; for the thing was done under his instructions. "The most thou canst expect," said the King to Lord Carew interceding in his behalf, "is that I should give him the hearing:" "and indeed a legal hearing " adds Lorkin in reporting the dialogue "is all that Sir Walter's well-wishers desire: for then they make no doubt but he will make his case good against all accusations in this kind whatsoever." But a legal hearing in this case involved a great, and I think an unexpected, difficulty. That Ralegh's life was by law absolutely at the King's mercy, was a fact clearly understood and well remembered. It was the security under which he was held to keep faith with the King; and it was thought that it would keep him true. But how the forfeiture was to be exacted in case he failed, was a question which does not seem to have been sufficiently considered. Though by law the sentence of death, which had been only respited, could be carried into execution whenever the King chose, to put him to death for the old offence, after thirteen years of imprisonment employed as he had employed them, was a thing not to be thought of. He could only deserve death by an entirely new crime. But supposing him to commit a new crime, and one for which death was the just penalty, how was he to be convicted of it? Sense and natural justice would answer, by the verdict of a jury after a regular trial. But law said no. The lawyers, with Sir Edward Coke at their head, all agreed that the King might legally behead him, but could not legally put him upon his trial. There was nothing to prevent the King from instituting any inquiry into the case that he desired, from taking the evidence of any number of witnesses, or from hearing the prisoner's defence upon every point, and so qualifying himself to say whether he was guilty or not guilty. This had already been done privately by the Commissioners; and might be done over again in public. But he could not have him indicted in due form of law, and so obtain the verdict of a jury.

Such was the case which was now referred to the Commissioners, for advice how to proceed: and the next letter contains their answer. The only copy of it that I know of is among the Gibson papers at Lambeth, from which it was printed by Birch; and being dated from York-house and included among Bacon's letters in all subsequent editions, it has been generally taken for his composition. But the manuscript, though called a copy, is in fact a draft; a rough draft in the handwriting of Sir Edward Coke: and as it is impossible to suppose that Coke wrote it to Bacon's dictation, the inference is that

Lorkin to Puckering, 30 June 1618. C. & T. vol. ii. p. 78.

the task of framing the answer to the King had been deputed to him, as the highest authority on such a question-and that the letter (though representing, of course, the result of previous conferences, and concurred in by the rest of the Commissioners) was drawn up by himself.

TO THE KING.1

May it please your most excellent Majesty,

According to your commandment given unto us, we have, upon divers meetings and conferences, considered what form and manner of proceeding against Sir Walter Ralegh might best stand with your Majesty's justice and honour, if you shall be pleased that the law shall pass upon him.

And first, we are of opinion, that Sir Walter Ralegh being attainted of high-treason (which is the highest and last work of law), he cannot be drawn in question judicially for any crime or offence since committed. And therefore we humbly present two forms of proceeding to your Majesty: the one, that together with the warrant to the Lieutenant of the Tower, if your Majesty shall so please, for his execution, to publish2 a narrative in print of his late crimes and offences; which (albeit your Majesty is not bound to give an account of your actions in these cases to any but only to God alone) we humbly offer to your Majesty's consideration, as well in respect of the great effluxion of time since his attainder, and of his employment by your Majesty's commission, as for that his late crimes and offences are not yet publicly known.

The other form (whereunto, if your Majesty so please, we rather incline) is that where your Majesty is so renowned for your justice, it may have such a proceeding as is nearest to legal proceeding; which is, that he be called before the whole body of your Council of State, and your principal Judges, in your Council-Chamber; and that some of the nobility and gentlemen of quality be admitted to be present to hear the whole proceeding, as in like cases hath been used. And after the assembly of all these, that some of your Majesty's Councillors of State that are best acquainted with the case should openly declare, that this

1 Gibson Papers, vol. viii. f. 21. Draft in Sir E. Coke's handwriting. Docketed "October 18, 1618. Copy of a letter to his Ma. touching Sir Walter Rawleigh." 2 So in MS. I think.

form of proceeding against Sir Walter is holden for that he is civilly dead. After this your Majesty's Counsel Learned to charge him with his acts of hostility, depredation, abuse as well of your Majesty's commission as of your subjects under his charge, impostures, attempt of escape, and other his misdemeanors.

But for that which concerns the French, wherein he was rather passive than active, and without which the charge is complete, we humbly refer to your Majesty's consideration, how far that shall be touched.

After which charge so given, the examinations read, and Sir Walter heard, and some to be confronted against him, if need be, then he is to be withdrawn and sent back; for that no sentence is, or can be, given against him. And after he is gone, then the Lords of the Council and Judges to give their advice to your Majesty, whether in respect of these subsequent offences, upon the whole matter, your Majesty if you so please, may not with justice and honour give warrant for his execution upon his attainder. And of this whole proceeding we are of opinion that a solemn act of council should be made, with a memorial of the whole presence. But before this be done, that your Majesty may be pleased to signify your gracious direction herein to your Council of State; and that your Counsel Learned, before the calling of Sir Walter, should deliver the heads of the matter, together with the principal examinations touching the same, wherewith Sir Walter is to be charged, unto them, that they may be perfectly informed of the true state of the case, and give their advice accordingly. All which nevertheless we, in all humbleness, present and submit to your princely wisdom and judgment, and shall follow whatsoever it shall please your Majesty to direct us herein with all dutiful readiness.

Your Majesty's most humble,

York-house, this 18th

of October, 1618.

and faithful servants, etc.

Though this letter is very well known, its importance as an evidence of the opinion of the commissioners upon the case has not I think been sufficiently observed; probably because of the obscurity which has hitherto hung over the dates of their proceedings. But it will now be seen that after a thorough investigation of the

charges and the evidence, they were prepared to recommend a form of proceeding in all essential respects public and judicial: the audience to consist of the Council, the Judges, and some of the nobility and gentry: the charges to be preferred, the evidence produced, and the defendant heard in reply, exactly as they would have been in an ordinary trial: the decision to be taken by advice of the Council and Judges publicly given: and a formal record to be made of the whole proceeding. They must have thought therefore that it was a case which would bear public criticism: and a close tribunal cannot give better proof of the sincerity of its judgment than by desiring to submit it to an open one.

The recommendation was adopted in part: but unfortunately with the omission of that which was most material in it-the provision for publicity. Why their advice was not followed altogether, has hitherto been matter of conjecture; but can now be explained on authority. Among the papers recently discovered by Mr. Fortescue there is the draft of the King's answer to this letter. It it is written in the hand of Packer, Buckingham's secretary, and has no signature or docket. But as it agrees exactly with what followed, we need not doubt that it is a true copy.1

"Right trusty and well beloved Counsellors, we greet you well. We have perused your letter touching the proceeding with Sir Walter Raleigh, in both which courses propounded by you we find imperfection. As first we like not that there should be only a narration set forth in print of his crimes, together with our warrant for his execution. And secondly for the other course of a public calling him before our Council, we think it not 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 of him. Secondly it were too great honour to him to have that course to be taken against one of his state which we have observed never to have been used but towards persons of great quality, as namely the Countess of Shrewsbury and some such. Besides it would make too great a stir to have such sending of advice and directions to and fro as you mention in your letter. We have therefore thought of a middle course, That he be called only before those who have been the examiners of him hitherto, and that the examinations be read, and himself heard, and others confronted with him, who were with him in this action. And that our Attorney and Solicitor be employed to inform against him, [touching his acts of hostility, depredation, abuse as well of our commission as of our subjects under his charge, his imposture, attempt of escape, and other his misdemeanours]. Only for the French we hold

it not fit that they be named but only by incident, and that very lightly,

1 Fortescue Papers. Rough draft, I think in Packer's hand.

2 The words within brackets are interlined in the MS.