1902 Encyclopedia > Treason

Treason




TREASON. The law which punishes treason is a necessary consequence of the idea of a state, and is essen-tial to the existence of the state. Most, if not all, nations have accordingly, at an early period of their history, made provision by legislation or otherwise for the punishment of those offences against public order which consist in more or less direct attacks upon the safety of the state or its chief. The principle is universal; it is the applica-tion of the principle which leads to differences of opinion. What would have been a capital crime at Rome under Tiberius may be no offence at all in England. It is to the advantage of both the state and the citizen that what is treason and what is not should be clearly defined, so that as little as possible discretionary power, apt to be strained in times of popular excitement, should be left to the judicial or executive authorities. The importance of this was seen by Montesquieu, Vagueness in the crime of treason, says he, is sufficient to make the government degenerate into despotism.1 At the same time, it may be observed that despotic Governments have not always left the crime undefined. The object of Henry VIII., for instance, was rather to define it as closely as possible by making certain acts treason which would not have been so without such definition. In both ancient and modern history treason has generally been a crime prosecuted by exceptional procedure, and visited with afllictive as dis-tinguished from simple punishments (to use the termino-logy of Bentham).

In Roman Jaw the offences originally falling under the head of treason were almost exclusively those committed in military service, such as in England would be dealt with under the Army Act. The very name perduellio, the name of the crime in the older thisRoman law, is a proof of this. Perduelles were, strictly public enemies who bore arms against the state; and traitors were regarded as having no more rights than public enemies. The Twelve Tables made it punishable with death to communicate with the enemy or to betray a citizen to the enemy. Other kinds of perditellio were punished by interdiction of fire and water. The crime was tried before a special tribunal, the duumviri perduellionis, perhaps the earliest permanent criminal court existing at Rome. At a later period the



FOOTNOTE (page 525)

1 Esprit des Lois, bk. xii. c. 7.



name of perduellio gave place to that of laesa majestas, deminuta or minuta majestas, or simply madestas. The lex Julia majestatis, to which the date of 48 B.C. has been conjecturally assigned, continued to be the basis of the Roman law of treason until the latest period of the empire. The original text of the law appears to have still dealt with what were chiefly military offences, such as sending letters or messages to the enemy, giving up a standard or fortress, and desertion. With the empire the law of majestas received an enormous development, mainly in the reign of Tiberius, and led to the rise of a class of pro-fessional informers, called delatores.1 The conception of the emperor as divine2 had much to do with this. It became a maxim that treason was next to sacrilege3 in gravity. The law as it existed in the time of Justinian is contained chiefly in the titles of the Digest4 and Code5 "Ad legem Juliam majestatis." The definition given in the Digest (taken from Ulpian) is this: "majestatis crimen illud est quod adversus poputum Romanum vel adversus securi-tatern ejus committitur." Of treasons other than military offences, some of the more noticeable were the raising of an army or levying war without the command of the emperor, the questioning of the emperor’s choice of a sue-cessor, the murder of (or conspiracy to murder) hostages or certain magistrates of high rank, the occupation of public places, the meeting within the city of persons hostile to the state with weapons or stones, incitement to sedition or administration of unlawful oaths, release of prisoners justly confined, falsification of public documents, and failure of a provincial governor to quit his province at the expiration of his office or to deliver his army to his successor. The intention (voluntas) was punishable as much as an overt act (effectus).6 The reported opinions as to what was not treason show the lengths to which the theory of treason must have been carried by at least some person in authority. It was not treason to repair a statue of the emperor which had decayed from age, to hit such a statue with a stone thrown by chance, to melt down such a statue if unconsecrated, to use mere verbal insults against the emperor, to fail in keeping an oath sworn by the emperor, or to decide a case contrary to an imperial constitution. Treason was one of the "publica judicia," i.e., one of those crimes in which any citizen was entitled to prosecute. The law went further than this, and deprived the accused in a charge of treason of his ordinary remedy for malicious prosecution. It also took from him the privilege (which those accused of other crimes generally possessed) from accusation by women or infamous persons, from liability to be put to the torture, and from having his slaves tortured against him (see TORTURE). The punishment from the time of Tiberius was death (usually by beheading)7 and confiscation of property, coupled with complete civil disability. A traitor could not make a will or a gift or emancipate a slave. Even the death of the accused, if guilty of treason of the gravest kind, such as levying war against the state, did not extinguish the charge, but the memory of the deceased became infamous, and his property was forfeited as though he had been con-victed in his lifetime.

The law of England corresponds to a considerable extent with Roman law; in fact, treason is made by Blackstone the equivalent of the crimen laesae majestatis. The history of the crime in the two systems agrees in this that in both the law was settled by legislation at a comparatively early period, and subsequently developed by judicial construction. In both, too, there were exceptional features distinguishing this crime from other offences.8 For instance, at common law treason was not bailable; (except by the Queen’s Bench) or clergyable, could not be cleared by sanctuary, and did not admit of accessories, for all were principals, nor could a married woman plead coercion by her husband. To stand mute and refuse to plead did not save the lands of the accused, as it did in felony, so that the "peine forte et dure" (see TORTURE) was unnecessary in treason. These severities were due to the conception of treason as a breach of the oath of allegiance. Other differences introduced by statute will be mentioned later. In some cases a statute simply affirmed the common law, as did the Statute of Treasons to a great extent, and as did 26 Hen. VIII. c. 13, depriving those accused of treason of the benefit of sanctuary. How far the Roman law was consciously imitated in England it is impossible to determine. It was certainly not adopted to its full extent, for many acts were majestas which were never treason, even in the most despotic periods. Treason was the subject of legislation in many of the pre-Conquest codes. The laws of Alfred9 and Aethelred10 punished with death any one plotting against the life of the king. Soon after the Conquest the Leges Henrici Primi11 put any one slaying the king’s messenger in the king’s mercy. The crime was shortly defined by Glanvill11 and at greater length by Bracton,13 who follows Roman law closely. He includes under treason sedition and coining. Treason seems to have rested chiefly, if not wholly, upon common law until the year 1352, when the famous Statute of Treasons (25 Edw. III. st. 5, c. 2) was passed. The statute appears to have arisen from a petition of the Commons in 1348, praying for a definition of the offence of accroaching royal power, a charge on which several persons—notably Gaveston and the Despencers—had suffered. The offences made treason by the statute are these:—(I) to compass or imagine14 the death of the king,15 the queen, or their eldest son and heir; (2) to violate the king’s companion, or his eldest daughter unmarried, or the wife of his eldest son and heir ; (3) to levy war against the king in his realm, or be adherent to the king’s enemies in his realm, giving them aid and com-fort in the realm or elsewhere; (4) to counterfeit the king’s great or privy seal or his money ; (5) to bring false money into the realm, counterfeit to the money of Eng-land, as the money called Lushburgh,16 knowing the money to be false; (6) to slay the chancellor, treasurer, or the king’s justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices. The statute further defined petty treason to be the slaying of a master by his servant, a husband by his wife, or a prelate by a man secular or religious owing him allegiance. In all cases of treason not specified in the statute the justices before whom the case came were to tarry without going to judgment until the cause had been



FOOTNOTES (page 526)

(1) See Merivale, Hist. of the Romans under the Empire, vol. iii. p. 467, vol. v. p. 141.

(2) "Principes instar deorum esse" are the words of Tacitus.

(3) This crime was called laesa majestas divina in later law.

(4) xlviii. 4.

(5) ix. 8.

(6) A similar provision was contained in the Golden Bull of Charles IV. c. 2 4. In English law, with the one exception of a statute of Richard II. (21 Ric. II. c. 3) repealed in the first year of Henry IV., an overt act has always been necessary. The difficulty of proving a mere intention is obvious. In French and German law the overt act (attentat or Unternehmen) is as indispensable as in English.

(7) To harbour a fugitive enemy was panishable only by deportation, Dig., x1viii. 19, 40.

(8) The position of treason as a special crime prosecuted by special procedure is one common to most legal systems at some period of their existence. For instance, in Germany, by a constitution of Henry VII. the procedure was to be summary, sine strepitu et figura judicii.

(9) c. 4.

(10) v. 30.

(11) lxxix. 2.

(12) xiv. 1.

(13) 118b.

(14) These words, accordhig to Luders (Law Tracts, note ad fin.), mean to attempt or contrive.

(15) This by 1 Mary, sess. 3, c. 1 includes a queen regnant.

(16) i.e., Luxemburg.



showed and declared before the king and his parliament whether it ought to be judged treason or felony. The statute, so far as it defines the offence, is still law, except the clauses as to counterfeiting the seal, coining, and petit treason, repealed respectively, after a considerable amount of intermediate modification by statute, by II Geo. IV. and I Will. IV. c. 66, 2 and 3 Will. IV. c. 34, 30 Geo. III. c. 48, and 9 Geo. IV. c. 31. Petit treason is now treated as murder, 24 and 25 Vict. c. 100.1 From the time of the passing of the Statute of Treasons the limits of treason were continually being extended for a time, and again reduced to the bounds fixed by the statute. It protected only the king’s life, and its insufficiency was supplemented in periods of danger by legislation, often of a temporary nature. Under Richard II. and Henry VIII. many new offences were made treason,2 but the Acts creating these new treasons were repealed at the earliest opportunity by the parliaments of their successors, and the Statute of Treasons was made the final standard by 1 Mary, sess. 1, c. 1. The reign most prolific in statutory additions to the law of treason was undoubtedly that of Henry VIII. Legislation in this reign was little more than a register of the fluctuating opinions of the monarch. Thus, by 25 Hen. VIII. c. 22 it was treason not to believe Mary illegitimate and Elizabeth legitimate; by 28 Hen. VIII. c. 7 it was treason to believe either legitimate; by 35 Hen. VIII. c. 1 it was treason not to believe both legitimate. An interesting act of this reign, 37 Hen. VIII. c. 10, shows that a class of men like . the Roman delatores must have been called into existence by all the new legislation. The Act constituted it felony to make anonymous charges of treason without daring to appear in support of them before the king or council. Out of the mass of Henry VIII.’s Acts, only two are still law,—28 Hen. VIII. c. 15 and 35 Hen. VIII. c. 2, giving power to try treasons committed within the jurisdiction of the admiralty and out of the realm. Many other instances of offences of a temporary kind made treason at different times occur among the statutes, especially in those levelled at the papal jurisdiction by the parliaments of Elizabeth. A few of the more interesting of other kinds may be briefly noticed. It was treason by 21 Ric. II. c. 4 to attempt to appeal or annul judgments made by parliament against certain traitors; by 2 Hen. V. st. 1, c. 6, and 29 Hen. VI. c. 2 to break a truce or safe-conduct; by 5 and 6 Edward VI. c. 11 to hold castles, fortresses, or muni-tions of war against the king; by 17 Car. II. c. 5 to adhere to the United Provinces; by 9 Will. III. c. 1 to return without licence if an adherent of the Pretender ; by 12 and 13 Will. III. c. 3 to correspond with the Pretender ; and by 57 Geo. III. c. 6 to compass or imagine the death of the prince regent. In addition to these, many Acts of attainder were passed at different times. One of the most severe was that against Catherine Howard, 33 Hen. VIII. c. 21, which went as far as to make it treasonable for any queen to conceal her antenuptial incontinence. Other Acts were those against Archbishop Scrope, Owen Glendower, Jack Cade, Lord Seymour, Sir John Fenwick, James Stuart, and Bishop Atterbury. In one case, that of Cromwell, Ireton, and Bradshaw, an Act of attainder was passed after the death of those guilty of the treason, 12 Car. II. c. 30. At times



FOOTNOTES (page 527)

(1) Since the disappearance of petit treason as a distinct crime, it seems useless to retain the old name of high treason by which what way be called treason proper was formerly known.

(2) One reason for making these offences treason rather than felony was no doubt to give the crown rather than the lord of the fee the right to the real estate of the criminal on forfeiture. Had the offences been felony the king would have had only his year, day, and waste on the estate escheating to the lord, as was the case in treason before the Statute of Treasons (see FELONY).



Acts, of indemnity were passed to relieve those who had taken part in the suppression of rebellion from any possible liability for illegal proceedings. Three such Acts were passed in the reign of William III.

The Statute of Treasons, as interpreted by the judges, is still the standard by which an act is determined to be treason or not. The judicial interpretation has been sometimes strained to meet cases scarcely within the contemplation of the framers of the statute: e.g., it became established doctrine that a conspiracy to levy war against the king’s person or to imprison or depose him might be given in evidence as an overt act of compassing his death, and that spoken words, though they could not in themselves amount to treason, might constitute an overt act, and so be evidence. Besides decisions on particular cases, the judges at different times came to general resolutions which had an appreciable effect on the law. The principal resolutions were those of 1397 (confirmed by 21 Ric. II. c. 12), of 1557, and those agreed to in the case of the regicides at the Restoration and reported by Sir John Kelyng. A remarkable resolution in favorem rei among the latter was that a prisoner ought not to be ironed during trial. The result of judicial decisions on the Statute of Treasons was summed up in Acts passed in 1786, made permanent in 1817 and in 1848 (57 Geo. III. c. 6 and II Vict. c. 12, the latter often called the Treason Felony Act). The effect of this legislation, according to Mr Justice Stephen, is that such of the judicial constructions as extend the imagining of the king’s death to imagining his death, destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonnient or restraint, have been adopted, while such of the con-structions as make the imagining of his deposition conspiring to levy war against him, and instigating foreigners to invade the realm, have not been abolished, but are left to rest on the authority of decided cases. The present state of the law has been incorpor-ated by skilled lawyers in the draft criminal code, which will no doubt become an Act when parliament has leisure to devote to matters of this kind, The code draws a distinction between treason and treasonable crimes, the former including such acts (omitting those that are obviously obsolete) as by the Statute of Treasons and subsequent legislation are regarded as treason proper, the latter including the crimes contained in the Act of 1848. In the words of the code (§ 76) "treason is (a) the act of killing Her Majesty, or doing her any bodily harm tending to death or destruction, maim or wounding, and the act of imprisoning or restraining her; or (b) the forming and manifesting by an overt act an intention to kill Her Majesty, or to do her any bodily harm tending to death or destruc-tion, maim or wounding, or to imprison or to restrain her; or (c) the act of killing the eldest son and heir-apparent of Her Majesty, or the queen consort of any king of the United Kingdom of Great Britain and Ireland; or (d) the forming and manifesting by an overt act an intention to kill the eldest son and heir-apparent of Her Majesty, or the queen consort of any king of the United Kingdom of Great Britain and Ireland; or (e) conspiring with any person to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or conspiring with any person to imprison or restrain her ; or (f) levying war against Her Majesty either with intent to depose Her Majesty from the style, honour, and royal name of the imperial crown of the United Kingdom of Great Britain and Ireland or of any other of Her Majesty’s dominions or countries ; or in order by force or constraint to compel Her Majesty to change her measures or counsels, or in order to intimidate or overawe both Houses or either House of Parliament ; or (g) conspiring to levy war against Her Majesty with any such intent or for any such purpose as aforesaid; or (h) instigating any foreigner with force to invade this realm or any other of the dominions of Her Majesty; or (i) assisting any public enemy at war with Her Majesty in such war by any means whatso-ever; or (j) violating, whether with her consent or not, a queen consort, or the wife of the eldest son and heir-apparent for the time being of the king or queen regnant." There are a few other Acts still in force besides those of 1817 and 1848 which have dealt with substantive law. By 11 Henry V11. c. 1 obedience to the de facto sovereign for the time being is not treason. By 1 Anne st. 2, c. 21, it is treason to endeavour to hinder the next successor to the crown from succeeding, and by 6 Anne c. 41 it is treason to maliciously, advisedly, and directly by writing or printing main-tain and affirm that any person has a right to the crown otherwise than according to the Acts of Settlement and Union, or that the crown and parliament cannot pass statutes for the limitation of the succession to the crown.

The Acts dealing with procedure and punishment are more numerous, and are characterized by a slowly increasing favour shown to the accused:—in fact, considerably greater than in felony, for counsel were not allowed to prisoners in charges of felony until, 1836, and such prisoners are still not entitled to a copy of the indictment or the names of the witnesses or jury. With respect to the mode of trial, the effect of common law and legislation is that there are now four varieties—IMPEACHMENT (q.v), trial of a pear by the peers, court martial, and trial by a judge of the High Court of Justice and a jury. The offence cannot be tried at quarter sessions. Trial by battle in cases of treason ceased in the 14th century, as far as regards appeals in the common law courts or in parliament, by the effect of several statutes passed between 1332 and 1399. Appeals of treason were finally abolished in 1819 (see APPEAL). In the court of the lord high constable an award of battle occurred as lately as 1631 in the case of Lord Rea.1 Traitors in the reign of Edward IV., and perhaps later, were at times tried by martial law. The issue of commissions of martial law in time of peace was declared illegal by the Petition of Right in 1628. The prerogative of the crown to try traitors by martial law in time of open rebellion still exists, and is recognized by statute. In two Acts, for instance, dealing with Ireland, 43 Geo. III. c. 117 and 3 and 4 Will. IV. c. 4, it was provided that nothing in the Acts was to take away the undoubted prerogative of the crown for the public safety to resort to the exercise of martial law against open enemies and traitors. A peer is tried before the House of Lords, or the court of the lord high steward if the trial be during the recess of parliament. Procedure in such trials is regulated by 7 and 8 Will. III. c. 3, and other Acts. The last trial of a peer for treason was that of Lord Lovat in 1746-47. Persons subject to naval or military law are triable by court martial in certain cases under the powers given by the Naval Discipline Act, 1866, and the Army Act, 1881. The trial of treason committed out of the realm is regulated by 35 Hen. VIII. c. 2, 5 and 6 Edw. VI. c. 11, and 7 Anne c. 21. Lord Macguire was tried by jury in England under 35 Hen. VIII. c. 2 for treason committed in Ireland.2 Procedure before and at the trial depends upon a large number of Acts, of which the most important is one passed in 1695 (7 and 8 Will. III. c. 3). It enacted that persons indicted for treason are to have a copy of the indictment delivered to them five days before trial. The court is empowered to assign counsel for the prisoner (a power extended to impeachments by 20 Geo. II. c. 30). The oath of two witnesses, or confession in open court, or refusal to plead, or per-emptory challenge of more than thirty-five jurors is necessary for conviction. The witnesses must be both to the same overt act or one to one and the other to another overt act of the same treason. If two or more treasons of divers kinds are alleged in one indict-inent, one witness to prove one treason and another to prove another are not sufficient. No person is to be indicted unless within three years after the offence, except on a charge of attempted assassination of the king. The accused is to have copies of the panel of the jury3 two days before trial. He is entitled to the same process to compel his witnesses to appear as is usually granted to compel the witnesses for the prosecution. No evidence is to be given of any overt act not expressly laid in the indictment. The Act expressly denied the prisoner the names of the witnesses against him. The law on this point was altered by 7 Anne c. 21, which enacted that a list of such witnesses was to be delivered to him ten days before trial. Such witnesses had previously been made examinable upon oath by 1 Anne at. 2, c. 9. By 5 and 6 Vict. c. 51 (extending the provisions of an Act of 1800) the advantages given by the Act of William III. are not to extend to a prisoner charged with treason in compassing or imagining any bodily harm tending to the death or destruction, maiming or wounding of the queen, where the overt act is an attempt to injure the person of the queen. In such a case the trial is to proceed in every respect and on the like evidence as if it were for murder. By 11 Vict. c. 12 no prosecution for a felony under the Act, in so far as it is expressed by open and advised speaking only, is to be instituted unless information be given to a justice or sheriff within six days and a warrant issued within ten days of the information, and no person is to be convicted of such an offence except on con-fession in open court or proof by two witnesses. The prisoner is not to be acquitted if the facts amount to treason. There may be accessories to felonies under this Act, which, as has been already stated, there cannot be to treason. The prosecutor and witnesses are not entitled to costs. By a later Act of the same year (11 and 12 Vict. c. 42, § 23) a person charged with treason is not to be admitted to bail except by order of a secretary of state or by the Queen’s Bench Division or a judge thereof in vacation.

The punishment of treason at common law was barbarous in the extreme.4 The sentence was that the offender, if a man, be drawn on a hurdle to the place of execution, that there he be hanged by the neck till he be dead, that his head be severed from his body, and that his body be divided into four quarters, the head and quarters to be at the disposal of the crown. A woman was drawn to the place of execution, and there burned alive. The Acts of 30 Geo. III. c. 48 and 54 Geo. III. c. 146 changed the sentence to hanging in the case of women, and in the case of men enabled the crown, by warrant under the sign manual countersigned by a secretary of state, to change the sentence to beheading or reinit it altogether. By the Felony Act, 1870, the punishment is hanging only, but 54 Geo. III, c. 146 appears to be still so far in force that beheading may be substituted by warrant of the crown where the criminal is a man. Attainder and forfeiture are abolished by the Felony Act, 1870, except where the offender has been outlawed.5 The maximum penalty for a felony under the Act of 1848 is penal servitude for life. In every pardon of treason the offence is to be particularly specified therein (see PARDON).

Trials for treason in Great Britain and Ireland have been very numerous, and occupy a large part of the numerous volumes of the State Trials. Some of the more interesting may be mentioned. Before the Statute of Treasons were those of Gaveston and the Despensers in the reign of Edward II. on charges of accroaching the royal power. After the Statute were those (some before the peers by trial or impeachment, most before the ordinary criminal courts) of Empson and Dudley, Fisher, More, the earl of Surrey, the duke of Somerset, Anne Boleyn, Lady Jane Grey, Sir Thomas Wyatt, Cranmer, the queen of Scots, Sir Walter Raleigh, Strafford, Laud, Sir Henry Vane and other regicides, William, Lord Russell, Algernon Sidney, the duke of Monmouth, and those implicated in the Pilgrimage of Grace, the Gunpowder, Popish, Rye House, and other plots. Cases where the proceeding was by bill of attainder have been already mentioned. Occasionally the result of a trial was confirmed by statute. In some of these trials, as is well known, the law was considerably strained in order to insure a con-viction. Since the Revolution there have been the cases of those who took part in the risings of 1715 and 1745, Lord George Gordon in 1780, Hardy and Horne Tooke in 1794, the Cato Street con-spirators in 1820, Frost in 1840, and the Fenians in 1867. It should be noticed that many cases of proceedings for treason against foreigners occur. Treason committed by them within the realm is a breach of what has been called local allegiance, due to the sovereign of the country in which they reside. Such are the cases of Leslie, bishop of Ross, ambassador to Elizabeth from the queen of Scots, the Marquis de Guiscard in Queen Anne’s reign, and Gyllenborg, the ambassador from Sweden to George II. Pro-ceedings against ambassadors for treason have never gone beyond imprisonment, more for safe custody than as a punishment. No amount of residence abroad will suffice to exempt a native-born subject from the penalty of treason if he bear arms against the country of his birth.1st

Misprision (from the old French mespris) of treason, in the words of Blackstone, "consists in the bare knowledge and concealment of treason, without any degree of assent thereto, for any assent makes the party a principal traitor." At common law even the conceal-ment was treason, but 5 and 6 Edw. VI. c. 11 and 1 and 2 Ph. and M. c. 10 made concealment a misprision only. The offence was dealt with by many Acts, under some of which rather remark-able crimes were made misprision; e.g., 14 Eliz. c. 3 constituted the counterfeiting of foreign coinage a misprision. The procedure in trials for misprision is in general the same as that followed in trials for treason, most of the Acts regulating procedure including both crimes. The punishment is loss of the profit of the lands of the offender during life, and imprisonment for life.

Cogitate Offences.—Under this head may be conveniently grouped certain offences against public order which, though not technically treason or treasonable offences (to use the language of the draft criminal code), are so nearly allied to them as to make it convenient to treat them under the head of treason. The most interesting of these for historical reasons is praemunire. The word is derived from praemunire or praemoneri facias, the introductory words of the writ of summons to the defendant to answer the charge. From this the word came to be used to denote the offences prosecuted by means of such a writ, usually of an ecclesiastical kind. The Statute of Praemunire, specially so called, is 16 Ric. II. c. 5, enact-ing that the procuring at Rome or elsewhere of any translations, bulls, &c., against the king puts the persons offending out of the king’s protection, subjects their goods to forfeiture and themselves to attachment or process of praemunire facias. The Act introduced no new principle, but simply continued the anti-papal policy visible in the Statutes of Provisors, the earliest of which dated from 1307. At different times many other Acts were passed, extending the penalties of premunire to other crimes, usually those connected with the supremacy ofthe pope (2 Hen. IV. c. 4, mentioned under TITHES, is an example), but sometimes of a more-distinctly political as distinguished from religious nature. Thus it is praemunire by 13 Car. I. c. 1 to affirm the power of parliament to legislate to with-out the crown by the Habeas Corpus Act to send a prisoner beyond seas, and to verbally assert the right of a person to the crown con-



FOOTNOTES (page 528)

(1) Shakespeare twice makes effective use of the trial by battle in treason, In

King Lear and Richard II.

(2) 4 State Trials, 653.

(3) By the Bill of Rights the jurors in trials for treason must have been free-holders. This provision of the Act was repealed by 9 Geo. IV. c. 50.

(4) The exceptional character of the punishment, like that of the procedure, may be paralleled from Germany. The punishment of traitors by Frederick II. by wrapping them in lead and throwing them into a furnace is alluded to by Dante, Inferno, xxlll. 66

(5)Proceedings after the death of an alleged traltor might at one time have been taken, but only to a very limited extent as compared with what was allowed in Roman and Scots law. Sir E. Coke (4 Rep., 57) states that there might have been forfeiture of the land or goods of one slain in rebellion on view of the body by the lord chief justice of England as supreme coroner.

(6) See Aeneas Macdonald’s case, 18 State Trials, 857.



trary to the Acts of Settlement and Union is praemunire by 6 Anne c. 41. To do so by writing or printing is, as has been said, treason. The latest Act constituting a praemunire is the Royal Marriage Act, 12 Geo. III. c. 11, which subjects to the penalties of premunire any one guilty of a breach of the provisions of the Act. A peer charged with praemunire is not entitled to trial by his peers, but is to be tried by a jury. The most famous historical instance of a prosecution on the Statute of Praemunire was that of Wolsey in 1529. Other offences cognate to treason are publisbing scandalous stories about the king (the leasing-making of Scotch law), mal--administration and sale of public offices, coining, offences against the Foreign Enlistment Act, and the crimes specially provided against by 33 Hen. VIII. c. 12 and 5 and 6 Vict. c. 51. The former Act punished malicious striking in the king’s palace by perpetual imprisonment, fine, alid loss of the right hand. The minute provisions for the mutilation of the offender are very curious, but not of immediate interest, as that part of the Act which inflicted mutilation was repealed by 9 Geo. IV. c. 31. By 5 and 6 Vict. c. 51 it is a high misdemeanour, punishable by penal servitude for seven years, to wilfully discharge, point, aim, or present at the person of the queen any gun or other arms, loaded or not, or to strike at or attempt to throw anything upon the queen’s person, or to produce any firearms or other arms, or any explosive or dangerous matter, near her person, with intent to injure or alarm her or to commit a breach of the peace. For other offences which are more or less nearly connected with treason refer-ence may be made to the articles LIBEL, OATHS, PETITION, RIOT, and SEDITION.1

Scotland.—Treason included treason proper, or crimes against the crown or the state, such as rebellion, and crimes which, though not technically treasonable, were by legislation punished as treason. Examples of the latter were the remaining in England against the king’s will, 1430, c. 19; wilful fire-raising, 1526, c. 10; kidnapping, 1567,c. 27; theft, reset, and stouthrief by banded men, 1587, c. 34. There were also many acts dealing with offences in the nature of resistance to authority, such as unlawful convocations, and with treasons of a merely transitory nature, such as attempting to restore the Ruthvens (1600), taking or owning the Covenants (1685), or corresponding with James VII. (1698) Acts of forfeiture were sometimes directed against individuals, as 1645, c. 23, against the marquis of Huntly. Scottish procedure was as a rule less favour-able to the accused than English. In one matter, however, the opposite was the case. Advocates compellable to act oil behalf of the accused were allowed him by 1587, c. 57, more than a century before the concession of a similar indulgence in England. At one time trial in absence and even after death was allowed, as in Roman law. In the case of Robert Leslie, in 1540, a summons after death was held by the estates to be competent, and the bones of the deceased were exhumed and presented at the bar of the court.2 The Act 1542, c. 13, confined this revolting procedure to certain treasons of the more heinous kind. By 7 Anne c. 21 trial in absence—the last instance of which had occurred in 1698—was abolished. The same Act assimilated the law and practice of treason to that of England in other respects by enacting that no crime should be treason or misprision in Scotland but such as was treason or misprision in England. The Act further provided that the trial was to be by a jury of twelve, not fifteen as in other crimes, before the court of justiciary, or a commission of oyer and terminer containing at least three lords of justiciary. To play a lord of justiciary or lord of session, or to counterfeit the great seal, was made treason. The Act also contained provisions as to forfeiture,3 qualification of jurors, and procedure, Outlawry for treason was regulated by 22 Geo. II. c. 48. The punishment still remains the same as it was in England before the Felony Act, 1870, and attainder and forfeiture are still the effects of condemnation for treason, the Act of 1870 not extending to Scotland. One or two other statutory provisions may be briefly noticed. The trial of a peer of Great Britain for treason committed in Scotland is to be by a commission from the crown, on indictment found by a jury of twelve (6 Anne c. 23, 6 Geo. IV. c. 66). Bail in treason-felony is only to be allowed by consent of the public prosecutor or warrant of the high or circuit court (11 Vict. c. 12). The term lose-majesty was sometimes used for what was treason proper, e.g. in 1524, c. 4 making it lese-majesty to transport the king out of the realm: sometimes as a synonym of leasing-making. This crime (also called verbal sedition) consisted in the engendering discord between king and people by slander of the king.4 The earliest Act against leasing-making eo nomine was in 1524. The reign of James VI. was pre-eminently prolific in legislation against this crime. It is now of no practical interest, as prosecutions for leasing-making have long fallen into desuetude. At one time, however, the powers of the various Acts were put into force with great severity, especially in the trial of the earl of Argyll in 1681. The punishment for leasing-making, once capital, is now, by 6 Geo, IV. c. 47, fine or imprisonment, or both. The offence of praemunire was introduced into Scotland at a comparatively late period. By 6 Anne c. 23 it is praemunire for the peers of Scotland assembled to elect represen-tatives to treat of any other matter.5

Ireland—Numerous Acts, beginning with 18 Hen. VI. c. 2, were passed by the Irish parliament—in many cases more echoes of previous English legislation. As in England and Scotland, there was a tendency to include under treason crimes of quite another character. Murler was made treason by 10 Hen. VII. c. 21, and arson by 13 Hen. VIII. c. 1. Apparently the law must sometimes have been strained against accused persons, for 3 and 4 Ph. and M. c. 11 enacted that trials for treason were to be according to the common law. Treasons of a temporary nature were often the subject of legislation. An example is 11 Eliz. c. 6, making it treason to assume the name and authority of O’Neill. The provisions of the English Act of William III. as to witnesses, &c., were not extended to Ireland until 1821 by 1 and 2 Geo. IV. c. 24. Many Acts of indemnity were passed both by the parliaments of Ireland and of the United Kingdom. Among the more important were an Irish Act of 1799 (39 Geo. III. c. 3), indemnifying those who had been active in suppressing the treasonable rising of the previous year, and one of the parliament of the United Kingdom (41 Geo. III. c. 104), indemnifying those who had taken part in the suppression of rebellion subsequent to 1799. The law is now practically the same as that of England, unless where exceptional political circum-stances have led to exceptional legislation. Thus a series of enact-ments called the "Whiteboy Acts" (passed by the Irish and the United Kingdom parliaments between 1775 and 1830) was intended to give additional facilities to the executive for the suppression of tumultuous risings. Many Irish Acts dealt with unlicensed posses-sion and manufacture of arms. A similar policy was continued after the Union, and appears in the Peace Preservation Act, 1881, continued in 1887 for five years. Some Acts, such as 3 and 4 Will. IV. c. 4, went as far as to make offenders in a proclaimed district triable by court-martial. By the Prevention of Crime Act, 1882, now expired, the lord-lieutenant was empowered to issue special commissions for the trial without jury of treason and treason-felony. The power was never exercised. The Criminal Law and Procedure (Ireland) Act, 1887, deals with resistance to authority and offences of a treasonable nature, especially "dangerous associations," though treason is not mentioned by name.

British Colonies aud Dependencies.—The law in the main agrees with that of the mother country, but it is quite competent for a colony to deal with treason by its own legislation which need not necessarily be in accordance with English law, and is sometimes expressed in more definite terms. Thus the Indian penal code makes it punishable with transportation for life to wage war against the Government of any Asiatic power in alliance or at peace with the queen, or to attempt to excite feelings of disaffection to the Govern-ment. Numerous temporary Acts were passed about the time of the mutiny, one of the most characteristic being an Act of 1858 making rebellions villages liable to confiscation. By the Cape of Good Hope statutes it is treason to deliver arms or gunpowder to the queen’s enemies. Many colonies adopt the English legislation as to procedure, and some, as New South Wales, &c., enact the-Treason Felony Act. A striking feature of colonial legislation on this subject is the great number of Acts of indemnity passed after different rebellions. Instances of such Acts occur in the legislation of Canada, Ceylon, the Cape of Good Hope, New Zealand, St Vin-cent, and Jamaica. The most important in the history of law is the Jamaica Act of 1866, indemnifying Mr Eyre for any acts com-mitted during the suppression of the rising in the previous year. It was finally held by the Exchequer Chamber in 1870 that this Act protected Mr Eyre from being sued successfully in England on a cause of action arising out of his acts during the outbreak ("Phil-lips v. Eyre," Law Reports, 6 Queen’s Bench, 1).

United States.—The law is based upon that of England. By Art. 3 s. 3 of the constitution "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving thern aid and comfort. No person shall be convicted of treason unless oil the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason ; but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." By Art. 2 s. 4



FOOTNOTES (page 529)

(1)Authorities.—The text-writers on criminal law, such as Hale and Hawkins ; Baron, Law Tracts, Cases of Treason; Coke, 3 Inst.. 1-39; Sir R. Holbourne, Reading;on the Statute of Treasons; Luders Law Tracts; Foster, Discourse of Treason Stephen, Comm., vol. iv. bk. vi. ch vi. The Statute of Treasons is noticed by Hallam, Const. Hist , vol. iii. p. 203; Stubbs, Const. Hist., vol. ii. p. 513. The most valuable modern authorities are Stephen, Hist. of the Criminal Law, vol. ii. ch. xxiih., and Willis Bund, Selection of Cases from the State Trials.

(2) In the one instance in England—that of Cromwell, Ireton, and Bradshaw—where the bodies of alleged traitors were exhumed after death they were not brought to the bar of a court as in Scotland.

(3) The provisions in the Act as to forfeiture (now repealed) were, according to Blackstone, Comm., vol. iv. p. 384, the result of a cumpromise between the House of Lords, in favour of its continuance, and the House of Commons, supported by the Scottish nation, strugglilig to secure a total immunity from this disability.

(4) It Is called by Hallam "the old mystery of iniquity in Scots law."

(5) For the existing Scots law of treason see Macdonald, Criminal Law, p. 220 For leasing-making see Hume, Comm., vol. i. p. 345.



impeachment for and conviction ot treason is a ground for remov-ing the president, vice-president, and other civil officers. The punishment by an Act of 1790 was declared to be death by hanging. But during the Civil War a new Act (17 July 1862) was passed, providing that the punishment should be death, or, at the discretion of the court, imprisonment at hard labour for not less than five years, and a fine of not less than 10,000 dollars to be levied on the real and personal property of the offender, in addition to disability to hold any office under the United States. The Act of 1862 and other Acts also deal with the crimes of inciting or engaging in rebellion or insurrection, criminal correspondence with foreign Governments in relation to any disputes or controversies with the United States, or to defeat the ineasures of the Government of the United States, seditions, conspiracy, recruiting soldiers or sailors and enlistment to serve against the United States. The Act of 1790 further provides for the delivery to the prisoner of a copy of the indictment and a list of the jurors, for defence by counsel, and for the finding of the indictment within three years after the conimission of the treason. Misprision of treason is de-fined to be the crime committed by a person owing allegiance to the United States, and having knowledge of the cominission of any crime against them, who conceals and does not as soon as may be disclose and make known the saine to the president or to some judge of the United States, or to the governor or to some judge or justice of a particular State. The punishment is imprisonment for not inore than seven years and a fine of not more than 1000 dollars (see Revised Statutes, §§ 1033, 1034, 1043, 5331-5338 ; Story, Constitution of the United States, §§ 1296-1301, 1796-1802). Treason against the United States cannot be inquired into by any State court, but the States may, and some of them have, their own constitutions and legislation as to treasons committed against themselves, generally following the lines of the constitution and legislation of the United States. In some cases there are differ-ences which are worth notice. Thus the constitution of Massa- chusetts, § 25, declares that no subject ought in any case or in any time to be declared guilty of treason by the legislature. The same provision is contained in the constitutions of Vermont, Connecticut, Pennsylvania, Alabania, and others. In some States the crime of treason cannot be pardoned ; in others, as in New York, it may be pardoned by the legislature, and the governor may suspend the sentence until the end of the session of the legislature next following conviction. In sorne States a person convicted of treason is disqualified for exercising the franchise. In New York conviction carries with it forfeiture of real estate for the life of the convict and of his goods and chattels. (J.W†.)








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