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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Code in 1899 (s.37), and were only repealed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."
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