23883511911 Encyclopædia Britannica, Volume 27 — TreasonWilliam Feilden Craies

TREASON (Fr. trahison, Lat. traditio), a general term for the crime of attacking “the safety of a sovereign state or its head. The law which punishes treason is a necessary consequence of the idea of a state, and is essential 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 its punishment. The principle is universal, though its application has led 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 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 affictive as distinguished from simple punishments (to use the terminology of Bentham).

Roman Law.—In Roman law 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 Roman 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 perduellio 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 name of perduellio gave place to that of laesa majestas, deminuta or minuta majestas, or simply majestas. 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, and is still, with the law of perduellio, the basis of the law of British South Africa as to treason. 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 professional informers, called delatores.[2] The conception of the emperor as divine[3] had much to do with this. It became a maxim that treason was next to sacrilege[4] in gravity. The law as it existed in the time of Justinian is contained chiefly in the titles of the Digest[5] and Code[6]Ad tegem Juliam majestatis.” The definition given in the Digest (taken from Ulpian) is this: “majestatis crimen illud est quod adversus populum Romanum vel adversus securitatem 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 successor, 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).[7] The reported opinions as to what was not treason show the lengths to which the theory of treason was carried. 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 deprived the accused in a charge of treason of his ordinary remedy for malicious prosecution, and also took from him the privilege (which those accused of other crimes generally possessed) of immunity from accusation by women or infamous persons, from liability to be put to the torture, and from having his slaves tortured to make them testify against him (see Torture). The punishment from the time of Tiberius was death (usually by beheading)[8] 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 convicted in his lifetime.

English Law.—The law of England as to treason corresponds to a considerable extent with Roman law; in fact, treason is treated by Blackstone as 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.[9] For instance, at common law treason was not bailable (except by the king’s bench) nor clergy able, could not be cleared by sanctuary, and did not admit of accessories before or after the fact, 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 Treason Act 1351 to a great extent, and as did an act of 1534, 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 high treason, even in the most despotic periods. Treason was the subject of legislation in many of the pre-Conquest codes. The laws of Alfred[10] and Æthelred[11] punished with death any one plotting against the life of the king. The Leges Henrici Primi[12] put anyone slaying the king’s messenger in the king’s mercy. The crime was shortly defined by Glanvill,[13] and at a greater length by Britton,[14] and by Bracton,[15] who follows Roman law closely.

The offence of high treason was not precisely defined by the common law (1 Hale, 76), and until the passing of the Treason Act 1351 depended much on the opinions of the king and his judges. That statute appears to be the answer to a petition of the Commons in 1348 (1 Hale, 87), praying for a definition of the offence of accroaching royal power, a charge on which several persons—notably Gaveston and the Despensers—had suffered. The offences made high treason by the statute which still remain are these: (1) to compass or imagine[16] the death of the king,[17] 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 comfort in the realm or elsewhere (perduellio); (4) 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. In all cases of treason not specified in the statute the justices before whom the case came are to tarry without going to judgment until the cause has been 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 of high treason, is still law.

The statute also treated as high treason forgery of the great or privy seal, counterfeiting the king’s coin and importing counterfeits thereof. These offences are now felonies. It also defined petty treason (now merged in wilful murder) as 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. The act of 1351 protects only the king’s life, and its insufficiency was supplemented in periods of danger by legislation, often of a temporary nature. Under Richard II. many new offences were made treason,[18] but the acts creating these new treasons were repealed at the earliest opportunity by the parliaments of his successors. The reign most prolific in statutory additions to the law of treason was that of Henry VIII. Legislation in this reign was little more than a register of the fluctuating opinions of the monarch. Thus, by one act of 1534 it was treason not to believe Mary illegitimate and Elizabeth legitimate; by another act of 1536 it was treason to believe either legitimate; by an act of 1543 it was treason not to believe both legitimate. Another act of this reign (1545) shows that a class of men'like the Roman delatores must have been called into existence by all the new legislation. The act made it felony to make anonymous charges of treason without daring to appear in support of them before the king or council. These acts were repealed in 1553 (1 Mar. st. 1. c. 1. s. 1.) and the act of 1351 was made the standard of the offence.

Besides the acts of 1351 and 1553 the following statutes are still in force with respect to the substantive law of treason. By an obscurely penned statute of 1495 (11 Hen. VII. c. 1. s. 1) persons serving the king for the time being in war are not to be convicted or attainted of treason; see Steph., Dig. Cr. Law (6th ed.), article 56. This statute has been held not to apply in British South Africa.

By an act of 1571 (13 Eliz. c. 2) as a counterblast to papal attacks on the right of Elizabeth to the English crown, it was declared that persons using in England papal bulls offering absolution and reconciliation to persons forsaking their due obedience to the English crown should be punishable as traitors. The penalties were abolished in 1846, but the acts against which the statute was aimed were declared to be still unlawful (see Steph., Dig. Cr. Law, 6th ed., p. 45n.). By an act of 1702 (1 Anne st. 2. c. 21 s. 3) it is treason to endeavour to hinder the next successor to the crown from succeeding, and by the Succession to the Crown Act 1707 it is treason maliciously, advisedly and directly by writing or printing to maintain 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.

By an act of 1796, made perpetual in 1817, the definition of treason is extended so as to include plots within or without Great Britain to cause the death or destruction, or any bodily harm tending to the death, destruction, maiming, or wounding, imprisonment or restraint of the king, if such plots are expressed by publishing any printing or writing, or by any overt act or deed. Since that date no new forms of treason have been created. There are many instances of offences temporarily made treason at different times. A few of the more interesting may be briefly noticed. It was treason to attempt to appeal or annul judgments made by parliament against certain traitors (1398); to break a truce or safe-conduct (1414–1450); to hold castles, fortresses or munitions of war against the king (1552); to adhere to the United Provinces (1665); to return without licence if an adherent of the Pretender (1696); to correspond with the Pretender (1701); and to compass or imagine the death of the prince regent (1817). In addition to these, many acts of attainder were passed at different times. One of the most severe was that against Catherine Howard (1541), which went as far as to make it treasonable for any queen to conceal her ante-nuptial 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 (1660), and their bodies were exhumed, beheaded and exposed. 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. (1689–1690). Similar acts were passed after the Irish rebellion of 1798.

The punishment of treason at common law was barbarous in the extreme.[19] The sentence in the case of a man was that the offender be drawn on a hurdle to the place of execution,Punish-
that there he be hanged by the neck but not till he be dead, and that while yet alive he be disembowe led and that then his body be divided into four quarters, the head and quarters to be at the disposal of the Crown.[20] Until 1790 at common law a woman was drawn to the place of execution and there burned. In that year hanging was substituted for burning in the case of female traitors. In 1814 the part of the sentence relating to hanging and to disembowelling was altered to hanging until death supervened. Drawing and beheading and quartering after hanging were abolished in 1870. There is no legislation authorizing the execution of traitors within the walls of a prison as in the case of murder (see Capital Punishment). The act of 1814 in the case of men enables the Crown, by warrant under the sign manual, countersigned by a secretary of state, to change the sentence to beheading. Attainder and forfeiture for treason are abolished by the Forfeitures Act 1870, except where the offender has been outlawed.[21] 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 were at one time frequent 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 Sydney, 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 conviction. 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, Thomas Hardy and Horne Tooke in 1794, the Cato Street conspirators in 1820, Thomas Frost in 1840, Smith O'Brien in 1848, and in 1903 Arthur Lynch, for adhering to, aiding and comforting the king's enemies in the South African war.[22] The bulk of the treason trials are reported in Howell's State Trials and the New Series of State Trials. The statute of 1351 as interpreted by the judges in these cases 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 1398), of 1557, and those agreed to in the case of the regicides at the Restoration and reported by Sir John Kelyng. The effect of this legislation, according to Sir James 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, imprisonment or restraint, have been adopted, while such of the constructions 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 legislation in force in 1878 as to treason and kindred offences was collected by the late Mr R. S. Wright and its substance embodied in a draft consolidation bill (Parl. Pap. 1878 H. L. 178), and in 1879 the existing law was incorporated in the draft criminal codes of 1879. The code draws a distinction between treason and treasonable crimes, the former including such acts (omitting those that are obviously obsolete) as by the Treason Act 1351 and subsequent legislation are regarded as treason proper, the latter including the crimes contained in the Treason Felony Act 1848.

In the words of the draft (§ 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 destruction, 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 whatsoever; 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."

No amount of residence abroad exempts a British subject from the penalty of treason if he bears arms against the king,[23] unless he has become naturalized as the subject of a foreign state before the outbreak of the war in which he bears arms. To become naturalized as the subject of an enemy during a war is in itself an act of treason. It is well established that an alien resident within British territory owes local allegiance to the Crown and may be indicted for high treason, and there are numerous instances of prosecution of foreigners for treason. Such are the cases of Leslie, bishop of Ross, ambassador to Elizabeth from the queen of Scots (1584), the marquis de Guiscard in Queen Anne's reign and Gyllenborg, the ambassador from Sweden to George I. (1717). Proceedings against ambassadors for treason have never gone beyond imprisonment, more for safe custody than as a punishment. In 1781 La Motte, a Frenchman resident in England, was convicted of holding treasonable communications with France, and in Canada American citizens were tried for treason for aiding in the rebellion of 1837–1838 (Forsyth, 200). Assistance by a resident alien to invaders of British territory is high treason even if the territory in question is in military occupation by the forces of the foreign power.[24]

Of the modes of trying high treason two are obsolete, viz. (1) by appeal in the common law courts, which ceased by the effect of statutes between 1322 and 1399 and were finally abolished in 1819; (2) before the constableCourt and Place of Trial. and marshal. The last instance of this mode of trial was an award of battle in 1631 in the case of Lord Reay.[25] Four modes of trying high treason still remain, viz. impeachment, trial of a peer by his peers, trial by court-martial and trial by jury on indictment before the High Court or a court of assize or a special commission. The offence is not triable at quarter sessions.

At common law and under the Great Charter a peer, and, by an act of 1442, a peeress in right of her husband, are triable for treason before the House of Lords, or, when parliament is not sitting, in the court of the lord high steward. The last trial of a peer for treason was that of Lord Lovat in 1746–1747 (18 Howell’s St. Tr. 529).

In the reign of Edward IV., and perhaps later, treason was at times tried by martial law. The issue of commissions of martial law in time of peace was in 1628 declared illegal by the Petition of Right. But the prerogative of the Crown to deal by martial law with traitors in time of war or open rebellion within the realm or in a British possession still exists.[26]

Treasons committed within the admiralty jurisdiction or out of the realm were originally triable only by the admiral or the constable and marshal according to the civil law, but were made triable according to the courts of the common law by the Offences at Sea Act 1536, and by acts of 1543, 1552[27] and 1797. Provision is made for the trial in British possessions of treasons committed in the admiralty jurisdiction (Offences at Sea Act 1806).

Treasons committed within the realm are tried in the High Court, the central criminal court or another court of assize, or by special commission, except in the case of peers. In two acts dealing with Ireland (of 1809 and 1833) 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, while actual war or insurrection is raging (see Martial Law).[28] Treason by persons subject to military law is triable by court-martial under the Army Act (1881) ss. 4, 41 (a), where the offence cannot with reasonable convenience be tried in a civil court, and treason by persons subject to naval discipline by court-martial under the Naval Discipline Act (1866) s. 7. The procedure in such trials is regulated by the acts.

In certain cases of treason the procedure on the trial is the same as upon a charge of murder. Those cases, which are statutory exceptions from the statutory procedure prescribed for the trial of high treason and misprision thereof,Procedure. are: (a) Assassination or killing of the king, or any heir or successor of the king, or any direct attempt against his life or any direct attempt against his person whereby his life may be endangered or his person may suffer bodily harm (1800, 1814); (b) attempts to injure in any manner the person of the king (1842).

In all other cases of treason the procedure is regulated by acts of 1695, 1708 and 1825. A copy of the indictment must be delivered to the accused ten days at least before his arraignment, with a list of the witnesses for the prosecution (1708) and a list of the petty jury, except in the High Court, where the petty jury list is to be delivered ten days before the trial (1825).[29] The accused is entitled to be defended by counsel, and on application to the court may have two counsel assigned to him (1695), a right extended in 1746 to impeachments for treason. Witnesses for the defence have since 1702 been examinable upon oath. The accused may by the Criminal Evidence Act 1898 consent to be called as witness for the defence. It is doubtful whether the wife or husband of the accused is a compellable witness for the Crown (Archb. Crim. Pleading, 23rd ed., 398).

Prosecutions for treason must be begun within three years of the offence, except in cases of attempts to assassinate the king. The rules as to the indictment are stricter than in the case of felony and misdemeanour, much of the modern statutory power of amendment not extending to indictments for the graver offence. No evidence may be given of any overt act (voie de fait) not expressly stated in the indictment. The accused is entitled to peremptory challenge of thirty-five of the jurors summoned for the petty jury; but they need not now be freeholders. The accused can be convicted only on his own confession in open court, or by the oath of two witnesses either both to the same overt act charged, or one to one overt act and the other to another overt act of the same treason. If two or more treasons of different kinds are charged on the same indictment, one witness to prove one treason and another to prove another are not sufficient for a lawful conviction. Persons charged with treason are not admitted to bail except by order of a secretary of state or by the High Court (k.b.d.) or a judge thereof in vacation (Indictable Offences Act 1848, s. 23). Witnesses for the defence are examined on oath and their attendance is secured in the same way as that of witnesses for the Crown (1695, 170).

Misprision of treason consists in the concealment or keeping secret of any high treason. (a) This offence was in 1552 declared to be high treason (5 and 6 Edw. VI. c. 11, s. 8), but the former law was restored in 1553–1554 (1 Mary st. i. c. 1Misprision of Treason. s.1;1 &2 Ph. and Mar c. 10, s. 7). The definition is vague and the exact scope of the offence uncertain, but in strictness it does not include acts which in the case of felony would constitute an accessory after the fact. In the Queensland Code of 1899 (s. 38) every person is guilty of a crime who, knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to a justice or use other reasonable endeavours to prevent the commission of that crime. The procedure for the trial of misprision of treason is the same as in the case of high treason. The punishment is imprisonment for life and forfeiture of the offender’s goods and of the profits of his lands during his life. (Steph. Dig. Cr. Law, 6th ed., 121, 401.) The forfeitures are not abolished by the Forfeitures Act 1870. There is no case of prosecution of this offence recorded during the last century.

The necessity of prosecutions for treason has been greatly lessened by a series of statutes beginning in 1744 which provide for the punishment as felonies of certain acts which might fall within the definition of treason, e.g. Offences akin to Treason. piracies (1744, 18 Geo. II. c. 30), incitement to mutiny (1797), unlawful oaths, including oaths to commit treason (1797, 1812), and aiding the escape of prisoners of war (1812). By the Treason Act 1842 it is a high misdemeanour, punishable by penal servitude for seven years, wilfully to discharge, point, aim or present at the person of the king any gun or other arms, loaded or not, or to strike at or attempt to throw anything upon the king’s person, or to produce any firearms or other arms, or any explosive or dangerous matter, near his person, with intent to injure or alarm him or to commit a breach of the peace.[30] The offence is one of the few for which flogging may be awarded.

By the Treason Felony Act 1848, s. 1., it was made a felony within or without the United Kingdom to plot (a) to deprive or depose the king from the style, &c., of the imperial crown of the United Kingdom, (b) to levy war against the king in any part of the United Kingdom in order by force or constraint to change his measures or counsels or to put force or constraint on or to intimidate or overawe either or both houses of parliament, (c) to move or stir any foreigner with force to invade the United Kingdom or any of the king’s dominions. The plot to be within the act must be expressed by publishing in printing or writing or by an overt act or deed. “Open and advised speaking,” originally included as an alternative, was removed from the act in 1891. For other offences more or less nearly connected with treason reference may be made to the articles: Libel; Oaths; Petition; Riot; Sedition.

The act of 1848 does not abrogate the Treason Act of 1351, but merely provides an alternative remedy. But with the exception of the case of Lynch in 1903, all prosecutions in England for offences of a treasonable character since 1848 have been for the felony created by the act of 1848. The trials under the act, mostly in Ireland, are collected in vols. 6, 7 and 8 of the New Series of State Trials. The procedure in the case of all the offences just noticed is governed by the ordinary rules as to the trial of indictable offences, and the accused may be convicted even though the evidence proves acts constituting high treason.

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. Scottish procedure was as a rule less favourable to the accused than English. In one matter, however, the opposite was the case. Advocates compellable to act on 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.[31] The act of 1542, c. 13 (rep. 1906), confined this revolting procedure to certain treasons of the more heinous kind. By the Treason Act 1708 trial in absence—the last instance of which had occurred in 1698—was abolished. The same act assimilates the law and practice of treason to that of England by enacting that no crime should be treason or misprision in Scotland but such as is treason or misprision in England. The act further provides for the finding of the indictment by a grand jury as in England and that the trial is 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 slay a lord of justiciary or lord of session sitting in judgment, or to counterfeit the great seal, is made treason. The act also contains provisions as to forfeiture,[32] qualification of jurors and procedure, which are not affected by the Criminal Procedure (Scotland) Act 1887. The punishment is the same as it was in England before the Forfeitures Act 1870, which does not extend to Scotland; and attainder and forfeiture are still the effects of condemnation for treason in Scotland.

One or two other statutory provisions may be briefly noticed. By acts of 1706 and 1825 the trial of a peer of Great Britain or Scotland for treason committed in Scotland is to be by a commission from the Crown, on indictment found by a grand jury of twelve. Bail in treason-felony is only allowed by consent of the public prosecutor or warrant of the high or circuit court of justiciary (Treason Felony Act 1848, s. 9). The term lese-majesty was sometimes used for what was treason proper (eg. in 1524, c. 4, making it lese-majesty to transport the king out of the realm, repealed in 1906), 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.[33] 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 acts of 1825 and 1837, fine or imprisonment or both.

Ireland.—The Treason Act 1351 was extended to Ireland by Poyning's law, but at the union there were considerable differ- ences between the Irish and the English law. The law and practice of Ireland as to treason were assimilated to those of England by acts of 1821 (1 & 2 Geo. IV. c. 24), 1842 (5 & 6 Vict. c. 51), 1848 (11 & 12 Vict. c. 12, s. 2), and 1854 (17 & 18 Vict. c. 56).

Prior to 1854 the provisions as to procedure in the English treason acts did not apply to Ireland (Smith O'Brien's case, 1848, 7 St. Tr. N. S. 1). A series of enactments called the “Whiteboy Acts" (passed by the Irish and the United Kingdom parliaments between 1775 and 1831) was intended to give additional facilities to the executive for the suppression of tumultuous risings, and powers for dealing with “ dangerous associations" are given by the Criminal Law and Procedure (Ireland) Act 1887. Prosecutions for treason in Ireland were numerous in 1848. Since that date numerous prosecutions have taken place under the Treason Felony Act 1848.

British Possessions.—Numerous temporary acts were passed in India at the time of the Mutiny, one of the most characteristic being an act of 1858 making rebellious villages liable to confiscation. By the Indian Penal Code, s. 121, it is an offence punishable by death or transportation for life and by forfeiture of all property to wage or attempt to wage war against the king. By s. 125 it is an offence punishable by transportation for life (as a maximum) to wage or attempt to wage war against any Asiatic government in alliance or at peace with the king or to abet the waging of such war. By s. 121 A., added in 1870, it is an offence punishable by transportation for life (as a maximum) to conspire within or without British India to commit an offence against s. 121 or to deprive the king of the sovereignty of British India or of any part thereof, or to overawe by criminal force or the show of criminal force the government of India or any local government in India. Other cognate offences are included in the same chapter (vi.) of the Criminal Code. The Penal Codes of Canada (1892, ss. 65-73) and New Zealand (1893, ss. 77-82) closely follow the provisions of the English draft code of 1879. Prosecutions for treason have been rare in Canada. Those of most note were in 1837, after the rebellion (see the Canadian Prisoners case, 1839, 9 Ad(olphus) El(les) [731]) and of Riel after the Red River rising in 1884 (see Riel v. R. 1885, 10 App. Cas. 675).

The Commonwealth parliament of Australia has not legislated on the subject of high treason, which is in Australia governed by the laws of the constituent states, i.e. by the law of England as it stood when they were colonized, subject to local legislation. In the codes of Queensland (1899) and West Australia (1902) the offence is defined in a form which is little more than a redrafting of the English statutes. The provisions of the Treason Felony Act 1848 have been adapted by legislation to New South Wales (1900), Queensland (1899), Western Australia (1902) and Tasmania (1868). In Victoria there is legislation as to procedure but none as to the substantive law of treason. In Mauritius the offence is regulated by the Penal Code of 1838, arts. 50-61 (Mauritius Laws Revised, 1903, i. 372). In the Asiatic colonies treason is defined on the lines of the Indian Penal Code, i.e. Ceylon, Straits Settlements, and Hong- Kong. In the West Indies the law of treason is defined by code in Jamaica and in British Guiana (the code superseding the Dutch Roman law).

In South Africa the law of treason is derived through Holland from the Roman law. It includes the crimen perduellionis, i.e. disturbing the security or independence of the state with hostile intent. This is spoken of as high treason, as distinct from the crimen laesae majestatis, in which the hostile intent need not be proved, and from vis publica, i.e. insurrection and riot involving danger to public peace and order. By a Cape law of 1853 passed during the Griqualand rebellion it is made treason to deliver arms or gunpowder to the king's enemies.

The Treason Felony Act 1848 was also adopted in Natal in 1868.

During the South African War of 1899–1902 many trials took place for treason, chiefly under martial law, including cases of British subjects who had joined the Boer forces. In some cases it was contended that the accused had been recognized by the British authorities as a belligerent (Loǔw. 1904, 21 Cape Supreme Court Reports, 36). The decisions of the ordinary courts are collected in Nathan, Common Law of South Africa, iv. 2425 (London, 1907). The decisions of courts-martial were not reviewable by the ordinary courts and are also protected by acts of indemnity. A striking feature of colonial legislation is the great number of such acts passed after rebellions and native risings. Instances of such acts occur in the legislation of Canada, Ceylon, the Cape of Good Hope, Natal, New Zealand, St Vincent and Jamaica. The most important in the history of law is the Jamaica Act of 1866, indemnifying Governor Eyre for any acts committed during the suppression of the rising in the previous year. It was finally held that this act protected Eyre from being civilly sued or criminally prosecuted in England for acts done during the outbreak (Phillips v. Eyre, 1871, L. R. 6 Q. B. 1). The validity of an act passed in 1906 after disturbances among the Kaffirs of Natal was unsuccessfully challenged in 1907 (Tilonko's case, 1907, App. Cas. 93).

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 them aid and comfort. No person shall be convicted of treason unless on 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 impeachment for and conviction of treason is a ground for removing 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 an act (July 17, 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 measures 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 commission of the treason (see Story, Constitution of the United States, Rev. Stat. U.S. p. 1041). 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 differences which are worth notice. Thus the constitution of Massachusetts, pt. 1, § 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, Alabama 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 some 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.

France.—By the Code Pénal treason falls under the head of crimes against the safety of the state (bk. iii. tit. i. c. 1). It is a capital offence for a Frenchman to bear arms against France (s. 75) or to plot with a foreign power or its agents to commit hostilities or undertake war against France whether war follows or not (s. 76), or to intrigue with the enemies of the state for facilitating their entry into French territory, or to deliver to them French ships or fortresses, or to supply them with munitions of war, or aid the progress of their arms in French possessions or against French forces by sea or land (s. 78).

Germany.—The Strafgesetzbuch distinguishes between high treason (Hochverrat) and treason (Landesverrat). The offences denominated high treason are (1) murder or attempt to murder the emperor or a federal sovereign in his own state, or during the stay of the offender in the sovereign’s state (s.80); (2) undertaking to kill, take prisoner, or deliver into an enemy’s power, or make incapable of government a federal sovereign; to change by violence the constitution of the empire or a state thereof or the successor to the throne therein; to incorporate by force the federal territory or the territory of any such state with a foreign or another federal state (s. 81). The code treats as treason, but does not punish by death, the offences included in the French code (ss. 87–89), and under certain circumstances punishes alien residents or these offences (s. 91). The code also punishes insults on the emperor and federal sovereigns (ss. 95, 97) under the name of Majestätsbeleidigung.

Italy.—Treason in the Penal Code 1888 (tit. i. c. 1) includes direct acts to subject Italy or any part thereof to foreign domination or to diminish its independence or break up its unity (s. 104), to bear arms against the state (s. 105), or intrigue with foreign states with the object of their levying war against Italy or helping them in such war (s. 106), or to reveal political or military secrets affecting the national independence (s. 107).

Spain.—The Spanish code distinguishes between treason (lesa majestad) and rebellion (rebelión). Under the former are included assassination, or attempts on the life or personal liberty of the king (arts. 158, 159), or insults to the king (161, 162), and provisions are made as to attacks on the heir or consort of the sovereign (163, 164). Under rebellion are included violent attempts to dethrone the king or to interfere with the allegiance to him of his forces or any part of the realm (243).  (W. F. C.) 

  1. Esprit des lois, bk. xii. c. 7.
  2. See Merivale, History of the Romans under the Empire, iii. 467, v. 141.
  3. "Principes instar deorum esse" are the words of Tacitus.
  4. This crime was called laesa majestas divina in later law.
  5. xlviii. 4.
  6. ix. 8.
  7. A similar provision was contained in the Golden Bull of Charles IV. c. 24. In English law, with the one exception of a statute of 1397 (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.
  8. To harbour a fugitive enemy was punishable only by deportation, Dig., xlviii. 19, 40.
  9. 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.
  10. c. 4.
  11. v. 30.
  12. lxxix. 2.
  13. xiv. 1.
  14. cc. 20, 21, 22.
  15. de Corona 118b.
  16. These words, according to Luders (Law Tracts, note ad fin.), mean to attempt or contrive.
  17. This by act of 1553 includes a queen regnant.
  18. One reason for making 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 es cheating to the lord. as was the case in treason before the Statute of Treasons.
  19. 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, xxiii. 66.
  20. See the sentence in full in Latin in R. v. Walcot, 1696, 1 Eng. Rep. 87.
  21. Proceedings after the death of an alleged traitor 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. 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.
  22. 1903, 1 KB. 446. He was sentenced to death. The sentence was commuted to penal servitude for life. Lynch was released on licence after one year in prison and has since been pardoned.
  23. Aeneas Macdonald's case, 18 St. Tr. 857; R. v. Lynch (1903) 1 K.B. 446—see Mayne, Ind. Cr. Law (1896), pp. 459, 460.
  24. De Jager's case (1907) App. Cas. 326.
  25. A case of treason out of the realm as to which alone the constable and marshal had jurisdiction (3 Howell’s St. Tr. 1).
  26. See case of D. F. Marais (1902, App. Cas. 109).
  27. There is no trace of recourse to the act of 1552. In 1903 Arthur Lynch was tried under the act of 1543 for high treason in South Africa, and Lord Maguire in 1645 for treason in Ireland (4 St. Tr. 653).
  28. The decisions of courts of martial law appear not to be reviewable by ordinary civil courts (re Marais, 1907, App. Cas. 109).
  29. In these respects persons accused of treason are in a better position than those accused of felony.
  30. This act was passed in consequence of a series of assaults on Queen Victoria. See 4 St. Tr. N. S. 1382; 7 St. Tr. N. S. 1130, and 8 St. Tr. N. S. 1.
  31. 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.
  32. The provisions in the act as to forfeiture (now repealed) were, according to Blackstone (Comm. iv. 384), the result of a com- promise between the House of Lords, in favour of its continuance and the House of Commons, supported by the Scottish nation, struggling to secure a total immunity from this disability.
  33. It is called by Hallam “ the old mystery of iniquity in Scots law."