In the year 1603, Sir Walter Raleigh was put on trial for treason.
The indictment charged that Raleigh had conspired to kill King James I, raise a rebellion with intent to change the nation’s religion from Protestant to Catholic and subvert the government.
It further alleged that Raleigh had listened to Spanish bribe offers, and conferred and conspired with Lord Cobham to use Spanish gold, to put Lady Arabella Stuart on the English throne. Raleigh was tried by a jury of 12 knights.
His trial was conducted by a special commission, which consisted of four judges and seven laymen, with Chief Justice Popham, of King’s Bench, the English criminal court, presiding. It had been the job of the commissioners to ferret out the evidence of Sir Walter’s guilt.
Cobham was Raleigh’s sole accuser. The prosecution never produced Cobham in open court. Cobham’s testimony, instead, was produced in the form of unsigned written confessions.
Walter’s judges were plainly part of the prosecution. When Cobham was taken into custody, the commissioners had questioned Cobham to get his confession.
In 1603, what we today know as the “presumption of innocence” and the rule that the prosecution must prove its case “beyond a reasonable doubt,” had not yet become part of due process in English criminal cases. But unlike cases tried before the Spanish Inquisition, an indictment, charging a crime, began the proceedings.
Without an indictment, there could be no trial. By 1603, the requirement of a written charge, a jury trial, and protection against double jeopardy had become part of what passed for due process in English criminal trials.
Raleigh pleaded that Cobham be produced in open court, so that Raleigh could confront his accuser face-to-face and cross-examine him. His request was denied. Raleigh might open gaps in the prosecution’s evidence and thereby escape conviction.
Raleigh, because he had been charged with treason, was presumed to be guilty, just as he would have been before the Inquisition. He had no right to subpoena Cobham or any other possible defense witness to compel his witnesses to come to court.
Even worse, Raleigh, because he was a defendant, could not testify under oath on his own behalf, nor could he have the services of an attorney. He was allowed to question the only witness the prosecution produced, a sailor who testified to second and third-hand hearsay — what people in Spain had told other people who told him.
Raleigh was allowed to argue his own case to the jury. The prosecution went first, called its witness and produced written confessions and deposition. Raleigh was not required to put on his defense before he heard the prosecution’s evidence.
It was largely because of trials such as Raleigh’s that we have our Bill of Rights. In the 180-year period between Raleigh’s trial, and the adoption of our Bill of Rights, Englishmen on both sides of the ocean came to realize that “due process” (a fair trial) required certain procedural safeguards.
They include written notice of the charge, the right to counsel, the right to confront and cross-examine one’s accusers. The right to compel one’s own witness to give testimony in court, and the right to testify under oath as to one’s innocence.
In recent days, we have seen Democratic U.S. senators shamefully attempt to turn the clock back to 1603 in the Brett Kavanaugh confirmation hearing. They would presume him guilty, and require him to prove his innocence at least beyond all doubt.
They start with the presumption that if a woman accuses him, the woman must be telling the truth and he must be lying. “Bring in the burglar; we’ll give him a fair trial — and then hang him!”
Christine Blasey Ford has accused Kavanaugh of criminal misconduct that she alleges occurred some 36 years ago. She has done so in an unsworn letter and in an unsworn op-ed. Both are hearsay.
In America, prosecutions are commenced only after sworn evidence is heard and an indictment is returned. To date, there’s no sworn complaint. Ford’s attorneys have insisted that Kavanaugh testify first, without a sworn charge specifying Kavanaugh’s alleged misconduct!
Next, they insist that he put on his sworn defense before his accuser accuses him under oath, before he can confront her face-to-face, before he can cross-examine her, and without his own attorney.
That is exactly what the Spanish Inquisition did to its victims. If Democratic senators and representatives really want a return to the practices of the Spanish Inquisition, they should have the guts to unequivocally say so. If they don’t, then even a judge is entitled to due process.
And in America today, due process and fair trial are thought to require at a minimum — by every thinking man — the rights that are guaranteed to every American by the 5th and 6th Amendments to our Constitution, together with the presumption of innocence, and the requirement that the state/accuser prove the charge beyond a reasonable doubt.
Posted: QCOline.com September 27, 2018
Copyright 2018, John Donald O'Shea
