Do we need a modern treason law? A historical perspective

The Shamima Begum affair has – inevitably – prompted another outing for those who want Britain’s treason laws updated and reinvigorated. There seems no particular law to deal with someone who leaves Britain to marry into Isis, so why not dust off the medieval notion of treason and make it apply to Begum and her ilk?

It is an error to think that the treason law has never been modernised since the original Statute of Treasons of 1351 (still on the Statute Books here). In fact over the centuries it was updated to protect particular English and British monarchs or to deal with particular threats as and when they came up, such was the dissent that accompanied the countries’ oft-changing regimes. This list counts nearly 100 statutes as Treason Acts, some reforming legislation such as the 2013 Succession to the Crown Act, which extends the protection to female heirs apparent, others intended to crack down on the latest threat.

The 1351 statute codified what was generally accepted as the Common Law definition of high treason:

“If a man compasses [plots] or imagines [proposes] the death of our lord the king, of our lady his consort [the king’s wife] or of their eldest son and heir; or if a man violates [has sex with, whether consensual or not] the king’s consort, the king’s eldest daughter being as yet unmarried or the consort of the king’s eldest son and heir; or if a man makes war against our said lord the king in the kingdom or is an adherent of enemies to our lord the king in the kingdom…”

Any of that constituted treason plus counterfeiting the “great seal” (impressed in wax on documents to indicate they had the monarch’s authority) and coinage or killing the “chancellor, treasurer or justices”.

This is pretty clear and fairly restrained, curbing abuses of the Common Law version. The sexual restrictions, for example, are limited to the wife of the king, his daughter and his son’s wife and are in part attempts to ensure the legitimacy of heirs.

The statutory punishment for treason at that time was relatively mild – for people of property and distinction. The penalties were banishment and attainder – the latter being disgrace of the traitor’s family and dispossession of its property. The possibility of legitimate rebellion and hence a return to favour under a new regime was acknowledged in Magna Carta and hence in the law of treason. But the more brutal penalty of death by hanging, drawing and quartering was also available.

As the years passed more crimes were added, taken away and added again, depending on the political ebb and flow. The law became particularly strict under Henry VIII – most of his marriages prompted a new Treason Act passed to protect the latest wife’s position and dignity since most of the marriages were controversial, criticised from one side or another on personal, moral, or political grounds. In 1534 Henry (via Parliament) explicitly added treason by words or writing, including printed words, to the classification of treason.

During the reign of Henry’s son Edward (a child king under the control of the Duke of Somerset as “Protector”) Henry’s treason acts were repealed, deemed to be excessively “strait [strict], sore, extreme and terrible”. But then more Treason Acts were passed under Edward’s name, for example adding to the list of treasonous offences any claim that the king was a heretic or usurper (Edward was both, depending on your opinion).

When Mary I became Queen in 1553 she set out to once more reform the law and return it to its milder original version of 1351, justifying her enlightened view on the grounds that:

“the state of every king, ruler and governor of any realm, dominion or commonalty standeth and consisteth more assured by the love and favour of the subject toward their sovereign ruler and governor than in the dread and fear of laws made with rigorous pains and extreme punishment for not obeying their sovereign ruler and governor; and laws also justly made for the common weal [benefit of everyone] without extreme punishment or great penalty are more often for the most part obeyed and kept than laws and statutes made with great and extreme punishments…”

This is commendably liberal. Sadly Mary was soon to be disabused. Her Second Treason Act in the next year bemoans the fact that her “great mercy and clemency” in the first act had “given occasion to many cankered and traitorous hearts to imagine, practise and attempt things stirring the people to disobedience and rebellion”.

What had happened in the intervening months was that Mary had undertaken the unpopular marriage with Prince Philip of Spain, thus giving England a Spanish and Catholic king and the risk that the country would become tied to a more powerful Catholic empire. An uprising led by Sir Thomas Wyatt, a Kent landowner and son of the poet of the same name, was prompted by her decision to marry Philip. It now became treason if someone

“by preaching, express words or sayings, shall maliciously, advisedly and directly say, publish, declare, maintain or hold opinion that the king’s majesty that now is [ie Philip], during the said matrimony, ought not to have or enjoy jointly together with the queen’s majesty the style, honour or kingly name of this realm”.

The marriage had opened up Mary to criticism and since she felt somewhat vulnerable as the (possibly) illegitimate daughter of the son of a usurper marrying a more powerful ruler, she had to have a special treason act to stifle those criticisms.

The developing offence
This pattern of treason acts being passed to deal with particular issues as they arose continued down the centuries. The 1571 Treason Act of Elizabeth I made it unlawful to suggest that the Queen “by authority of the Parliament of England is not able to make laws and statutes of sufficient force and validity to limit and bind the Crown of this realm and the descent, limitation, inheritance and government thereof”.

Thus it became an act of treason to argue a remarkably arcane legal and constitutional point – to suggest the current monarch could not, through act of Parliament, establish who the next monarch should be – a protection for the Virgin Queen for the power she would (allegedly) use on her death bed to name James VI of Scotland as heir to England’s throne. Her resistance to going down the normal route of giving birth to the next monarch was a matter of much discussion and criticism – hence the need to issue a treason act to stop the discussion in its tracks.

Treason went through many more twists and turns over the centuries and it cannot be said that the matter is settled even now. In the 1848 Treason Felony Act, for example, it became treason to advocate the removal of the Queen (Victoria) from her role as constitutional monarch (much of the rest of Europe was embroiled in revolution that year).

In 1981 Marcus Sarjeant was jailed for five years for treason for firing blank cartridges close to the Queen, since it had been an offence since the 1842 Act to “alarm the sovereign”. Only in 1998 thanks to the Crime and Disorder Act did treason cease to be punishable by death (life imprisonment is now the highest penalty) but the various offences on the statute books remain in force, including the sexual offences of 1351.

This gave rise to suggestions during the ferment over Diana, Princess of Wales, that any lovers she might have had, among them Dodi Fayed, with whom she died in a car accident in Paris in 1997, were in breach of the original Treason Act. No action, however, was taken against the five other men named as her lovers at her inquest.

In 1998 the Earl of Onslow raised the issue of outdated treason acts in the House of Lords. Having established that there were no records of prosecutions under various Tudor treason acts relating to Ireland of 1537, 1542 and 1560, he asked: “Is it sensible, even with Cool Britannia and New Labour, to retain on the statute book Acts that carry very serious penalties? Does this not bring the whole of the law into disrepute?” In particular might they be open to misuse?

He got very short shrift from Lord Falconer, the solicitor-general. It was argued that since no records of prosecutions could be found, that implied the laws had fallen into disuse and were therefore harmless. Hence the Crime and Disorder Act 1998, part two, s.36 (1) refers to the 1537 Act: “In section I of the Treason Act (Ireland) 1537 (practising any harm etc to or slandering the King, Queen or heirs apparent punishable as high treason) for the words ‘have suffer such pains of death and’ there shall be substituted the words ‘be liable to imprisonment for life and to such’”.

Those in the part of Ireland that still remains within the United Kingdom will be gratified, no doubt, that their slandering of the Queen or Prince Charles will open them up merely to spending the rest of their life in the Tower of London (presumably) rather than to the loss of their heads.

Modern treason?
It is generally assumed “aliens” have no allegiance to the Crown. But in 2008 the attorney-general, Lord Goldsmith, produced a report (Citizenship: Our Common Bond-pdf) that called for investigation into a “more relevant” treason law – the implication being more relevant in the context of Islamic extremism. Elsewhere he suggests there is an ambiguity in the law in terms of whether it applies to “resident non-British citizens” – do they owe allegiance to the British state?

One cannot help suspecting that, rather than abolition or liberalisation of a much abused set of laws dating back 600 years, Lord Goldsmith intended a tightening up and extension of the law to foreign nationals as well as British citizens in this age of international terrorism.

In 2008 the Law Commission looked in passing at treason but concluded:

“The Law Commission published a Working Paper on the topic in 1977. Its provisional view was that there should be an offence to penalise conduct aimed at the overthrow by force of the constitutional government. However, this is not an offence of treason but one of sedition since it is an offence against the State … There is a need to consider the justification for the existing treason offences. In the Middle Ages, England was more often than not at war. It is questionable whether treason offences are required in peacetime.” (See  also LawComm Working paper No 72 )

If the law were to be “modernised” in the light of Shamima Begum – to apply to disloyalty to the State rather than the very narrow grounds of the current Act, it would be another in a long line of treason law changes, characterised by knee-jerk responses to whatever threat to the status quo was perceived at any particular time.

More historical/constitutional posts
Holy alliance to capture the British constitution
Magna Carta: is it such a great charter?
Henry VIII powers: keep Henry’s name out of it
Libel juries and the seven bishops
Julian Assange and treason in the US
How to impress a judge – with medieval law
Harry Potter and the misleading case of habeas corpus
Torture: A history
The original cash for honours scandal
Impeachment: its historic origins
Parliamentary privilege – or over-privileged?
The prime minister’s use of prerogative powers

1 Comment

Filed under Analysis, Comment, Constitution, Criminal law, European Convention on Human Rights, History, Human rights, Law, Legal, Politics, UK Law, UK Politics, Uncategorized

One response to “Do we need a modern treason law? A historical perspective

  1. Pingback: So-called Article 61 of Magna Carta – and the so-called right to rebel | AL's LAW

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