High Treason in The United Kingdom - History: England and Wales

History: England and Wales

In England, there was no clear common law definition of treason; it was for the king and his judges to determine if an offence constituted treason. Thus, the process became open to abuse, and decisions were often arbitrary. For instance, during the reign of Edward III, a knight was convicted of treason because he assaulted one of the king's subjects and held him for a ransom of £90. It was only in 1351 that Parliament passed legislation on the subject of treason. Under the Treason Act 1351, or "Statute of Treasons", which distinguished between high and petty treason, several distinct offences constitute high treason; most of them continue to do so, while those relating to forgery have been relegated to ordinary offences.

First, it is high treason to "compass or imagine the death of our Lord the King, of our Lady his Queen, or of their eldest son and heir." The terms "compass or imagine" indicate the premeditation of a murder; it would not be high treason to accidentally kill the sovereign or any other member of the Royal Family (though someone could be charged with manslaughter or negligent homicide). However it has also been held to include rebelling against or trying to overthrow the monarch, as experience has shown that this normally involves the monarch's death. The terms of this provision have been held to include both male and female sovereigns, but only the spouses of male Sovereigns. It is not sufficient to merely allege that an individual is guilty of high treason because of his thoughts or imaginations; there must be an overt act indicating the plot.

A second form of high treason defined by the Treason Act 1351 was having sexual intercourse with "the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir." If the intercourse is not consensual, only the rapist is liable, but if it is consensual, then both parties are liable. Anne Boleyn and Catherine Howard, wives of Henry VIII, were found guilty of treason for this reason. The jurist Sir William Blackstone writes that "the plain intention of this law is to guard the Blood Royal from any suspicion of bastardy, whereby the succession to the Crown might be rendered dubious." Thus, only women are covered in the statute; it is not, for example, high treason to rape a Queen-Regnant's husband. Similarly, it is not high treason to rape a widow of the sovereign or of the heir-apparent. Diana, Princess of Wales admitted that she had an affair with her riding instructor, James Hewitt, between 1987 and 1992. As she was then the wife of the Prince of Wales, heir to the throne, this fitted the definition of high treason, and a national newspaper briefly attempted to have Hewitt prosecuted for what was then still a capital offence.

It is high treason "if a man do levy war against our Lord the King in his realm" or "if a man be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere." Conspiracy to levy war or aid the sovereign's enemies do not amount to this kind of treason, though it may be encompassing the Sovereign's death. In modern times only these kinds of treason have actually been prosecuted (during the World Wars and the Easter Rising).

The Treason Act 1351 made it high treason 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 last types of high treason defined by the Treason Act 1351 were the forgery of the Great Seal or Privy Seal, the counterfeiting of English (later British) money and the importing of money known to be counterfeit. These offences, however, were reduced to felonies rather than high treasons in 1861 and 1832 respectively.

Finally, the Treason Act 1351 specified that the listing of offences was meant to be exhaustive. Only Parliament, not the courts, could add to the list. It provided that if "other like cases of treason may happen in time to come, which cannot be thought of nor declared at present", the court may refer the matter to the King and Parliament, which could then determine the matter by passage of an Act.

After the passage of the Treason Act 1351, several other offences were deemed to comprise high treason by Act of Parliament. Parliament seemed especially unrestrained during the reign of Edward III's successor, Richard II. Numerous new offences—including intending to kill the Sovereign (even without an overt act demonstrating such intent) and killing an ambassador—were declared treasonable. Richard II, however, was deposed; his successor, Henry IV, rescinded the legislation and restored the standard of Edward III.

In 1495 Poynings' Law extended English law to cover Ireland.

From the reign of Henry IV onwards, several new offences were made treasons; most legislation on the subject was passed during the reign of Henry VIII. It became high treason to deface money; to escape from prison whilst detained for committing treason, or to aid in an escape of a person detained for treason; to commit arson to extort money; to refer to the Sovereign offensively in public writing; to counterfeit the Sovereign's sign manual, signet or privy seal; to refuse to abjure the authority of the Pope; to marry any of the Sovereign's children, sisters, aunts, nephews or nieces without royal permission; to marry the Sovereign without disclosing prior sexual relationships; attempting to enter into a sexual relationship (out of marriage) with the Queen or a Princess; denying the Sovereign's official styles and titles; and refusing to acknowledge the Sovereign as the Supreme Head of the Church of England. Some offences, whose complexion was entirely different from traitorous actions, were nevertheless made treasons; thus, it was high treason for a Welshman to steal cattle, or for an assembly of twelve or more rioters to refuse to disperse when so commanded.

All new forms of high treason introduced since the Treason Act 1351, except those to do with forgery and counterfeiting, were abrogated by the Treason Act 1547, which was passed at the beginning of the reign of Edward VI. The Act created new kinds of treason however, including denying that the King was the Supreme Head of the Church, and attempting to interrupt the succession to the throne as determined by the Act of Succession 1543.

When Mary I became queen in 1553, she passed an Act abolishing all treasons whatsoever which had been created since 1351. Later that year, however, the offence of forging the Sovereign's sign manual or signet once again became high treason. Furthermore, the anti-counterfeiting laws were extended so as to include foreign money deemed legal tender in England. Thus, it became high treason to counterfeit such foreign money, or to import counterfeit foreign money and actually attempt to use it to make a payment. (But importing any counterfeit English money remained high treason, even if no attempt were made to use it in payment.) Mary also made it high treason to kill Philip II of Spain, her king consort, or to try to deprive him of his title.

William III made it high treason to manufacture, buy, sell or possess instruments whose sole purpose is to coin money. He also made adding any inscription normally found on a coin to any piece of metal that may resemble a coin high treason. George II made it high treason to mark or colour a silver coin so as to make it resemble a gold one.

Aside from laws relating to counterfeiting and succession, very few acts concerning the definition of high treason were passed. Under laws passed during the reign of Elizabeth I, it was high treason for an individual to attempt to defend the jurisdiction of the Pope over the English Church for a third time (a first offence being a misdemeanour and a second offence a felony), or for a Roman Catholic priest to enter the realm and refuse to conform to the English Church, or to purport to release a subject of his allegiance to the Crown or the Church of England and to reconcile him or her with a foreign power. Charles II's Sedition Act 1661 made it treason to imprison, restrain or wound the king. Although this law was abolished in the United Kingdom in 1998, it still continues to apply in some Commonwealth countries. Under laws passed after James II was deposed, it became treasonable to correspond with the Jacobite claimants (main article), or to hinder succession to the Throne under the Act of Settlement 1701, or to publish that anyone other than the individual specified by the Act of Settlement had the right to inherit the Crown.