Editor's Published Articles

The Quatercentary of Sir Walter Raleigh's Trial
VI: The Law of Treason

The law of treason at the time of Raleigh's trial was largely unchanged since 1352, when a statute of Edward III defined treason to include "compassing or imagining" the monarch's death. Essentially the same provisions were enacted in Queensland, as part of Sir Samuel Griffith's Criminal Code in 1899 (s.37), and were only repealed in 1997. Similar provisions appeared in the Commonwealth Crimes Act 1914, section 24, and now section 80.1 of the Criminal Code Act 1995. The death penalty has, of course, been abolished in Australia; and also - very recently - in the United Kingdom.

At the time of Raleigh's trial, the manifestation of an "overt act" was apparently necessary where the treason alleged was "adhering to the King's enemies", but not in the case of a treason by way of "compassing or imagining" the King's death. But even so loose a concept as "compassing or imagining" the King's death was made more nebulous by the proposition that any plan of action likely to imperil the King's life was sufficient, though the King's death was neither intended nor contemplated. So it was laid down in Sir Matthew Hale's Pleas of the Crown that a conspiracy to imprison the King by force, or the assembling of a company with that object, sufficed - on the reasoning, as supposed by Blackstone (4 Bl.Com. 79), of the "old observation, that there is generally but a short interval between the prisons and the graves of princes" [spelling modernised].

title-page to The History of the World,
written by Raleigh whilst a prisoner in the Tower of London.
when originally published, Raleigh’s name did not appear in the book;
being attainted for treason, Raleigh was “legally dead”.

Even if Raleigh had known the full extent of the Main Plot, as devised by Brooke and Grey, it did not involve the death of King James; merely his replacement, as sovereign, by Lady Arabella Stuart. And Raleigh's alleged role, put at its highest, was merely to assist in the distribution of funds to support an undertaking of which he did not know the details. At his trial, Raleigh was taunted by Coke with a statement that Watson and Markham, both involved in the Bye Plot, had heard Brooke attribute to Cobham, in the words: "There is no way of redress save only one, and that is to take away the King and his cubs, not leaving one alive". This was, at best, third-hand hearsay; and even then, it did not in any way implicate Raleigh. But it was adduced against Raleigh, apparently, as evidence that the course of action which Raleigh "compassed or imagined" placed the King in mortal danger.

Thus Raleigh was prosecuted on the footing that he possessed a certain state of mind, though there was no requirement that his state of mind be communicated to anyone else, or that it be put into action; and in fact, no evidence, even from Cobham, that Raleigh was privy to any proposal which imperilled the King's safety. Yet the alleged traitor was considered incompetent to give evidence on his own behalf, in defence of the allegation that he possessed a felonious state of mind.

As Blackstone notes (4 Bl.Com. 352):

    " … it was an ancient and commonly received practice … that, as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses." [spelling modernised]

But Blackstone also adds (ibid., p.357):

    "Sir Edward Coke protests very strongly against this tyrannical practice: declaring that he never read in any act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him; and therefore there was not so much as scintilla juris against it." [spelling modernised]

Coke's protest was not, of course, heard when he appeared to prosecute Raleigh; so Raleigh had to defend himself, without legal representation, neither permitted to give evidence on his own behalf, nor to call witnesses in his defence.

But on a charge of high treason, in Raleigh's time, the defendant laboured under a further and even more extreme disadvantage: prosecution witnesses were not called to give oral testimony, or made available for cross-examination; the prosecution merely read their depositions - and indeed, only those parts of the depositions which supported the prosecution case.

This was critical in Raleigh's trial, because Raleigh had every reason to suppose that Cobham might again recant if giving testimony viva voce. Though there is no complete transcript of the proceedings, Raleigh's submissions can be pieced together from a number of sources; what he said was to this effect -

    "I claim to have my accuser brought here face to face to speak. The Proof of the Common Law is by witnesses and jury: let Cobham be here, let him speak it. If you proceed to condemn me by bare inferences, without an oath, without subscription, upon a paper accusation, you try me by the Spanish Inquisition. If my accuser were dead or abroad, it were something, but he liveth, and is in this very house. Consider, my Lords, it is not a rare case for a man to be falsely accused; aye, and falsely condemned too. I beseech you, my Lords, let Cobham be sent for, charge him on his soul, on his allegiance to the King: let my Accuser come face to face, and be deposed. If Cobham will maintain his accusation to my face, I will confess myself guilty."

Cobham was not produced, Chief Justice Popham offering the explanation that "there must not such a gap be opened for the destruction of the King as would be if we should grant the application". In other words, where a man is on trial for his life for an alleged treason, a "gap [would] be opened for the destruction of the King" if the person accused were given a fair opportunity to test, by the process adopted in every other branch of the law - namely, by cross-examination of adverse witnesses - the veracity of the accusation.

Chief Justice Sir John ("Pompous") Popham

The circularity of this process of reasoning is self-evident: it only begins to make any kind of sense if one starts with the presumption that the person accused is guilty, so that any weakness in the prosecution case demonstrated by effective cross-examination involves the risk that a traitor may escape punishment. Whilst (as Raleigh pointed out) for all other purposes the Common Law regards the production and cross-examination of witnesses as an indispensable component in ascertaining the truth, that ingredient was omitted only in the class of cases where, one might think, ascertainment of the truth was of the utmost importance. Plainly, it is of no little importance to the man whose life is (quite literally) at stake; but even if "the destruction of the King" were - as "Pompous Popham" suggested - a relevant consideration, surely the greatest protection for the King was to establish the truth, rather than convicting an innocent and loyal subject, and taking the risk that the real traitors may escape unpunished.

Raleigh's trial ultimately produced some beneficial effects. Mention has already been made of Coke's attitude (as subsequently expressed) to the practice which denied the accused the right to give evidence, or to call evidence in his behalf; and, before the Century was out, those rights were expressly conferred on defendants in all cases by Act of Parliament. So, too, the right to legal representation was eventually extended to the accused in all criminal cases. By Blackstone's time, it was also well settled that, in any case of high treason, the prosecution must produce at least two witnesses, either testifying to the same overt act of treason, or to two separate overt acts of the same nature of treason.

Raleigh's trial holds a special place in the jurisprudence of the United States of America, where the Sixth Amendment to the Constitution specifically requires, in all criminal prosecutions, that the accused "be confronted with the witnesses against him". In California v. Green, (1970) 399 U.S. 149 at 146, the US Supreme Court noted:

    "A famous example is provided by the trial of Sir Walter Raleigh for treason in 1603. A crucial element of the evidence against him consisted of the statements of one Cobham, implicating Raleigh in a plot to seize the throne. Raleigh had since received a written retraction from Cobham, and believed that Cobham would now testify in his favour. After a lengthy dispute over Raleigh's right to have Cobham called as a witness, Cobham was not called, and Raleigh was convicted. … At least one author traces the Confrontation Clause [in the Sixth Amendment to the US Constitution] to the common-law reaction against these abuses of the Raleigh trial."

Click on the following icon to view or download this article in PDF format

128 kB (article without illustrations)

links to other parts of this article

Part I: Raleigh and Elizabeth I

Part II: The Essex Trial

Part III: James’s Succession

Part IV: The Main and Bye Plots

Part V: Cobham’s Allegations

Part VII: The Accused

Part VIII: The Prosecutor

Part IX: The Trial

Part X: Raleigh’s Execution

copyright © 1998-2005
all rights reserved
Anthony John Hunter Morris QC
Level 13, 239 George Street

Brisbane, Queensland
elephone: +61 7 3229 0267
acsimile: +61 7 3221 6715

this page last updated 20 January 2004