Editor's Published Articles

The Quatercentary of Sir Walter Raleigh's Trial
Part IX: The Trial

Some accounts refer to Raleigh's trial before the Court of King's Bench, but this is not strictly correct. The court was in fact a "special commission of oyer and terminer", not to be confused with the ordinary commissions of oyer and terminer and general gaol delivery, held at assizes under a Judge of one of the Courts of Common Law. As is noted in Tucker's Blackstone (the so-called "American Blackstone", expanded and annotated by St. George Tucker):

    "In England there are also courts of special-commission of oyer and terminer, … occasionally constituted for the special purpose of trying persons accused of treason, or rebellion, the judges of which, are frequently some of the great officers of state, associated with some of the judges of Westminster-Hall, and others, whose commission determines as soon as the trial is over. Most of the state trials, have been had before courts thus constituted: and the number of convictions and condemnations in those courts is a sufficient proof how very exceptionable such tribunals are: or rather how dangerous to the lives and liberties of the people, a power to select particular persons, as judges for the trial of state offences, must be, in any country, and under any possible form of government. In these cases, the offence is not only in theory, against the crown and government, but often, in fact, against the person, authority, and life of the ruling monarch. His great officers of state share with him in danger, and too probably in apprehension, and resentment. These are the judges, he selects, and from their hands expects security for himself and them. Whilst the frailties of human nature remain, can such a tribunal be deemed impartial?"

Any question of impartiality was noticeably absent from Raleigh's trial, where the commissioners included Sir Robert Cecil, and several of Cecil's cronies - Sir William Waad (who had acted as Raleigh's jailer), the Earls of Suffolk and Devonshire, Lord Wotton, Lord Henry Howard, and Sir John Stanhope. They sat with the Chief Justice of the King's Bench, Sir John Popham, the Chief Justice of the Court of Common Pleas, Sir Edmund Anderson, Mr. Justice Gawdy and Mr. Justice Warburton. At least one member of the Commission later repented of the proceedings: on his deathbed, Mr. Justice Gawdy observed that "the justice of England was never so depraved and injured as in the condemnation of Sir Walter Raleigh". Contemporary reports also state that, following the trial, Cecil was seen to have tears in his eyes; but one may be forgiven for suspecting that they were tears of the crocodile variety.

The jury was selected in advance, and brought down from London to Winchester for the trial. It comprised four knights, four esquires and four gentlemen. Offered the opportunity to challenge any of the jury, Raleigh replied: "I know none of them; but think them all honest and Christian men. I know my own innocency and therefore will challenge none. All are indifferent to me." Again, contemporary reports have members of the jury later kneeling before Raleigh, and begging his forgiveness for their verdict.

Winchester Great Hall

Nominal leader for the prosecution was Heale, the King's Serjeant; until 1814, the King's Serjeants took precedence over King's (and Queen's) Counsel, and even over the Attorney-General; but Heale's role was limited to elaborating on the allegations contained in the Indictment; Coke had the real conduct of the prosecution.

He began with a complete irrelevancy - a lengthy exposition of the Bye Plot. Raleigh interrupted with the observation, "You Gentlemen of the Jury, I pray remember, I am not charged with the Bye, being the Treason of the priest"; and Coke had to acknowledge that this was so. In the course of his discourse on the Bye Plot, Coke attempted to link it with the Main Plot, implying that Brooke - Cobham's brother - was the common connection, arguing that "these Treasons were like Sampson's foxes, which were joined in their tails, though their heads were severed". Taunting Raleigh with the words which Brooke attributed to Cobham - though there was no suggestion that these words were ever spoken by Raleigh, or in his presence - that Cobham meant to destroy the King "with all his cubs", Coke rhetorically asked: " … to whom do you bear Malice? To the Children?", leading to this exchange:


To whom speak you this? You tell me news I never heard of.


Oh, sir, do I? I will prove you the notoriest Traitor that ever came to the bar. After you have taken away the King, you would alter Religion: as you Sir Walter Raleigh, have followed them of the Bye in Imitation: for I will charge you with the Words.


Your words cannot condemn me; my innocency is my defence. Prove one of these things wherewith you have charged me, and I will confess the whole Indictment, and that I am the horriblest Traitor that ever lived, and worthy to be crucified with a thousand thousand torments.


Nay, I will prove all: thou art a monster; thou hast an English face, but a Spanish heart. Now you must have Money: Aremberg was no sooner in England (I charge thee Raleigh) but thou incitedst Cobham to go unto him, and to deal with him for Money, to bestow on discontented persons, to raise Rebellion on the kingdom.


Let me answer for myself.


Thou shalt not.


It concerneth my life.

Having done with the Bye Plot, Coke turned his attention to the Main Plot, in which Raleigh was supposedly involved. Cleverly, Coke attempted to turn to the prosecution's advantage the fact that only one witness - namely Cobham - implicated Raleigh. He anticipated (correctly) an argument by Raleigh that the testimony of one witness was insufficient to found a conviction for treason: Raleigh, who had been for some time enrolled at the Middle Temple 30 years earlier, but without the benefit of legal representation or any facilities to conduct his own research, was unaware that the statutory requirement for two witnesses had been repealed. So Coke charged that: "Raleigh, in his Machiavelian policy, hath made a Sanctuary for Treason: He must talk with none but Cobham; because, saith he, one Witness can never condemn me."

Nonetheless, the evidence against Raleigh remained the evidence of one man only - not under oath, and not even signed by the accuser. Raleigh argued the point with an extraordinary display of persuasive logic. He cited examples, within living memory, of persons accused on false testimony and convicted, with the true facts coming to light only after the sentence had been executed. He quoted the precepts of Holy Scripture, ordaining that no man shall be condemned on the evidence of a single witness, and added: "If Christ requireth it, as it appeareth, Matthew 18, if by the Canon, Civil Law, and God's Word, it be required, that there must be two Witnesses at the least; bear with me if I desire one". Answering a bench of no fewer than five Judges and seven Privy Councillors, Raleigh made his case with great force, yet the utmost deference. When finally the Lord Chief Justice remarked, "You plead hard for yourself, but the laws plead as hard for the King", Raleigh replied:

    "The King desires nothing but the knowledge of the truth, and would have no advantage taken by severity of the law. If ever we had a gracious king, now we have; I hope, as he is, such are his ministers. If there be but a trial of five marks at Common Law, a witness must be deposed. Good my Lords, let my Accuser come face to face, and be deposed."

Embarrassed by the absence of any evidence against Raleigh, beyond the unsworn and unsigned confession of Cobham, Coke began grasping at straws. He referred to a book, in Raleigh's possession, written during the reign of Elizabeth, disputing the Stuart title to the Crown. When Coke charged Raleigh that the book was treasonable, Raleigh denied having read it, but (addressing Coke) added: "It was written by one of your profession". It emerged that Raleigh had obtained the book from Sir Robert Cecil's father, Lord Burghley; and Cecil was quick to make the point "how useful and necessary it is for privy-counsellors and those in his place to intercept and keep such kinds of writings: for whosoever should then search his study may in all likelihood find all the notorious Libels that were writ against the late queen; and whosoever should rummage my Study, or at least my Cabinet, may find several against the King, our Sovereign Lord, since his accession to the throne". Not satisfied, Coke made the point to Raleigh: "You were no privy-counsellor, and I hope never shall be". But Cecil, obviously anxious to keep his father's name out of the proceedings, supported Raleigh: "He was not a sworn councillor of state, but he has been called to consultations." The discussion ended with an exchange in these terms:


Here is a Book supposed to be treasonable; I never read it, commended it, or delivered it, nor urged it.


Why, this is cunning!


Every thing that doth make for me is cunning, and every thing that maketh against me is probable!

The only witness called to give testimony in the entire proceedings was one Dyer, a mariner or merchant, whose evidence was:

    "I came to a merchant's house in Lisbon … ; there came a gentleman into the house, and inquiring what countryman I was, I said, an Englishman. Whereupon he asked me, if the king was crowned? And I answered, No, but that I hoped he should be so shortly. Nay, saith he, he shall never be crowned; for Don Raleigh and Don Cobham will cut his throat ere that day come."

It is almost unbelievable that any court, in any case, would accept such evidence; let alone on a capital trial. It was not merely hearsay, but - so it would seem - hearsay several times removed from the original source. The "gentleman" was not identified, and nothing established to verify the source of his information. It may have been idle gossip, or speculation. Raleigh, perhaps rhetorically, asked: "What infer you upon this?". Coke replied, "That your Treason hath wings." This produced one of the many powerful responses from Raleigh:

    "If Cobham did practise with Aremberg, how could it not but be known in Spain? Why did they name the Duke of Buckingham with Jack Straw's Treason, and the Duke of York with Jack Cade, but that it was to countenance his Treason? Consider, you Gentlemen of the Jury, there is no cause so doubtful which the King's Counsel cannot make good against the law. Consider my disability, and their ability: they prove nothing against me, only they bring the Accusation of my Lord Cobham, which he hath lamented and repented as heartily, as if it had been for an horrible murder: for he knew that all this sorrow which should come to me, is by his means. Presumption must proceed from precedent or subsequent facts. I have spent 40,000 crowns against the Spaniards. … If I had died in Guiana, I had not left 300 marks a year to my wife and son. I that have always condemned the Spanish Faction, methinks it is a strange thing that now I should affect it! … If you would be contented on presumptions to deliver up to be slaughtered, to have your wives and children turned into the streets to beg their bread; if you would be contented to be so judged, judge so of me."

Throughout the trial, as the weakness of the prosecution case became increasingly more obvious - as it became more apparent that Coke could not win the day with reasoned argument - he simply replaced reason with invective. He called Raleigh "the absolutest Traitor that ever was"; the "notoriest Traitor that ever came to the bar". Coke harangued Raleigh: "Thou hast a Spanish heart, and thyself art a Spider of Hell". At a time when the pronoun "thou" was ordinarily addressed only to children and servants, or between people on terms of intimacy - the pronoun "ye" being the appropriate form of address between gentlemen - Coke addressed Raleigh: "All that he [Cobham] did was by thy instigation, thou Viper; for I thou thee, thou Traitor." This turn of phrase must have attracted some notoriety at the time, as it was picked up by Shakespeare in Twelfth Night (Act 3, Scene 2, lines 44-46): "Taunt him with the licence of ink; if thou thou'st him some Thrice, it shall not be amiss".



What is even more extraordinary than Coke's brutality is the wit and good grace with which Raleigh responded. Immediately after being "thoued" by Coke, Raleigh replied: "It becometh not a man of quality and virtue, to call me so: But I take comfort in it, it is all you can do." Coke's antagonism to Raleigh, and Raleigh's cool replies, reached their culmination in this exchange:


Thou art the most vile and execrable Traitor that ever lived.


You speak indiscreetly, barbarously and uncivilly.


I want [i.e., lack] words sufficient to express thy viperous Treasons.


I think you want words indeed, for you have spoken one thing half a dozen times.


Thou art an odious fellow, thy name is hateful to all the realm of England for thy pride.


It will go near to prove a measuring cast between you and me, Mr. Attorney.


Well, I will now make it appear to the world, that there never lived a viler viper upon the face of the earth than thou.

Throughout these exchanges, a tactical battle was taking place between Coke and Raleigh, each of them trying to get the last word with the Jury. Raleigh argued that "He which speaketh for his life, must speak last." Coke protested: "The King's safety and your clearing cannot agree. I protest before God, I never knew a clearer Treason."

In fact, both Raleigh and Coke held letters from Cobham, one retracting the allegations against Raleigh, the other withdrawing the retraction. Each was trying to out-manoeuvre the other, so as to deal the last trump. When it appeared that the Court might indulge Raleigh to have the last word, Coke "sat down in a chafe, and would speak no more, until the Commissioners urged and intreated him". Finally, Coke was prevailed upon to make his closing address, and produce his letter from Cobham. Only when Coke had finished reading his letter from Cobham, did Raleigh produce another; and, cleverly, invited Cecil to read the letter, as Cecil was familiar with Cobham's handwriting:

    "Seeing myself so near the end, for the dire charge of my own conscience, and freeing myself from your blood, which else will carry vengeance against me; I will protest upon my salvation I never practised with Spain for your procurement; God so comfort me that this is my affliction, as you are a true subject for anything that I know. … God have mercy upon my soul, as I know no Treason by you."

All Raleigh's efforts were to no avail. After a trial lasting from 8am to midnight, the Jury took but 15 minutes to return with a guilty verdict, and the Lord Chief Justice thereupon pronounced sentence of death in the full magnitude and horror which the law then required.

Yet, to say that Raleigh's efforts were to no avail is not entirely true, since, although he lost the trial, he was the undoubted victor in the court of public opinion. A man almost universally unpopular, as one of Elizabeth's favourites, and especially for his role in the trial and execution of Essex, suddenly became a national hero. Had James ordered the execution to proceed, it would have put his Crown at far greater risk than any imagined treasons of which Raleigh was accused. Even James was to concede of Raleigh that, "by his wit, he turned the hatred of men into compassion for him". So, for 13 years, Raleigh remained a prisoner in the Tower; legally dead, as he had been attainted for treason, but still very much alive in mind, body and spirit.

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 VI: The Law of Treason

Part VII: The Accused

Part VIII: The Prosecutor

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