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:
Raleigh:
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To
whom speak you this? You tell
me news I never heard of.
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Coke:
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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.
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Raleigh:
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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.
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Coke:
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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.
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Raleigh:
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Let
me answer for myself.
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Coke:
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Thou
shalt not.
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Raleigh:
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It
concerneth my life.
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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:
Raleigh:
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Here
is a Book supposed to be treasonable;
I never read it, commended it,
or delivered it, nor urged it.
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Coke:
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Why,
this is cunning!
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Raleigh:
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Every
thing that doth make for me
is cunning, and every thing
that maketh against me is probable!
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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".
Raleigh
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Cecil
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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:
Coke:
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Thou
art the most vile and execrable
Traitor that ever lived.
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Raleigh:
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You
speak indiscreetly, barbarously
and uncivilly.
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Coke:
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I
want [i.e., lack] words sufficient
to express thy viperous Treasons.
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Raleigh:
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I
think you want words indeed,
for you have spoken one thing
half a dozen times.
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Coke:
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Thou
art an odious fellow, thy name
is hateful to all the realm
of England for thy pride.
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Raleigh:
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It
will go near to prove a measuring
cast between you and me, Mr.
Attorney.
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Coke:
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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.
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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.
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