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,[1] 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 in 1524, c. 4, making it lese-majesty to transport the king out of the realm, repealed in 1906), sometimes as a synonym of leasing-making.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.[2] 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
- ↑ 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.
- ↑ It is called by Hallam “ the old mystery of iniquity in Scots law."
