Under English, and later British law, high treason is the crime of disloyalty to the Sovereign. Offences constituting high treason include plotting the murder of the Sovereign, raping the Sovereign's consort, levying war against the Sovereign and adhering to the Sovereign's enemies, giving them aid or comfort. Several other crimes have historically constituted high treason; they have included counterfeiting and attempting to undermine the lawfully established line of succession.

The offence of high treason was once distinguished from petty treason (or petit treason), or the murder of one's lawful superior. Petty treason comprised the murder of a master by his servant, of a husband by his wife, or of a bishop by a lesser ecclesiastic. Petty treason, however, was not treated as severely as high treason; it was in reality a more serious degree of murder. Petty treason ceased to be a distinct offence from murder in 1793.

High treason was deemed greater than any other offence except war crimes, and was often subject to extraordinary punishment. A particularly horrific manner of execution known as hanging, drawing and quartering was employed. Today, however, cases of treason are rare; the maximum punishment is life imprisonment.

Contents

1 Offences 2 Liability 3 Trial 4 Procedures 5 Punishment

Offences

Common law knew no clear definition of treason. Instead, 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 1350 that Parliament passed legislation on the subject of treason. Under the 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 having been relegated to felonies.

Firstly, 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 is not high treason to accidentally kill the Sovereign or any other member of the Royal Family. 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 comprehended by the Statute of Treasons 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 (as Anne Boleyn and Catherine Howard, wives of Henry VIII, discovered). 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.

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." The phrase "enemies" includes only foreign powers in open war with the Sovereign; it does not include rebels, criminals or pirates. Conspiracy to levy war or aid the Sovereign's enemies do not amount to high treason.

The Statute of Treasons 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." Many of these offices, however, have been abolished.

The last types of high treason ascertained by the Statute of Treasons were the forgery of the Great Seal or Privy Seal, the counterfeiting of English money and the importing of money known to be counterfeit. These offences, however, are now felonies, rather than high treasons.

Finally, the Statute of Treasons specified that the listing of offences was not meant to be exhaustive; it stated, "other like cases of treason may happen in time to come, which cannot be thought of nor declared at present." If any offence is alleged to be treason though not explicitly mentioned in the Statute, 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 Statute of Treasons, 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 treasonous. Richard II, however, was deposed; his successor, Henry IV, rescinded the legislation and restored the standard of Edward III.

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 or signet; 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-fangled forms of high treason introduced since the reign of Edward III were abrogated by a single act passed during the reign of Henry VIII's daughter, Mary. Later in Mary's reign, 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.) 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, it was high treason for an individual to attempt to defend the jurisdiction of the Pope over the English Church for a second time (a first offence being a misdemeanour), or for a Roman Catholic priest to enter the realm and refuse to conform to the English Church. Under a law of James I, it was high treason to purport to release a subject of his allegiance to the Crown and to reconcile him or her with a foreign power. Under laws passed after James II was deposed, it became treasonous to correspond with the Jacobite claimants, 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. An act of 1796 extended the definition of high treason to include all plots to cause the death, maiming, wounding or restraint of the Sovereign.

Almost all treason-related offences introduced since the Statute of Treasons was passed have been abolished or relegated to felonies. The Statute of Treasons, on the other hand, has not significantly amended; the only changes involve the crimes of counterfeiting coins, importing counterfeit coins and forging seals, which are now only felonies. Hence, high treason comprises only conspiring to kill or cause bodily harm to the Sovereign; conspiring to kill the Sovereign's wife or eldest son; violating the Sovereign's wife, or the Sovereign's eldest unmarried daughter, or the Sovereign's eldest son's wife; levying war against the Sovereign in the United Kingdom; adhering to the Sovereign's enemies, giving them aid and comfort; murdering the King's Chancellor, Treasurer or Justices; and attempting to hinder succession under the Act of Settlement and the Acts of Union.

Liability

As a general rule, no British criminal court has jurisdiction over the Sovereign, from whom they derive their authority. As Sir William Blackstone writes, "the law supposes an incapacity of doing wrong from the excellence and perfection … of the King." Furthermore, to charge the Sovereign with high treason would be inconsistent, as it would constitute accusing him of disloyalty to himself. After the English Civil War, however, Charles I was tried for treason against the people of England. His trial and execution were irregular; they were more accurately products of a revolution, rather than a legal precedent.

An alien resident in the United Kingdom owes allegiance to the Crown, and may be prosecuted for high treason. A British subject resident abroad also continues to owe allegiance to the Crown. If he or she becomes a citizen of another state before a war during which he bears arms against the Crown, he or she is not guilty of high treason. On the other hand, becoming a citizen of an enemy state during wartime is high treason, as it constitutes adhering to the Sovereign's enemies.

Insane individuals are not punished for their crimes. During the reign of Henry VIII, however, it was enacted that in the cases of high treason, an idiot could be tried in his absence as if he were perfectly sane. In the reign of Mary I, the statute was repealed.

Trial

Peers and their wives and widows were formerly entitled to be tried for treason and for felonies in the House of Lords or the Lord High Steward's Court, the former being used in every case except when Parliament was not in session. In the House of Lords, the Lord High Steward presided, but the entire House acted as both judge and jury. In the Lord High Steward's Court, the Lord High Steward was a judge, and a panel of "Lords Triers" served as a jury. There was no right of peremptory challenge in either body. Trial by either body ceased in 1948, since which time peers have been tried in the same courts as commoners.

Commoners, and now peers and their wives and widows, are entitled to be tried for high treason, and also for lesser crimes, by jury. Aliens were until 1870 entitled to be tried for felonies by a jury de medietate linguæ, or a jury half of whom were foreigners, the other half subjects of the Crown; this privilege never extended to cases of high treason. Formerly, commoners were entitled to thirty-five peremptory challenges in cases of treason, but only twenty in cases of felony and none in cases of misdemeanours; all peremptory challenges, however, were abolished in 1988.

Another mode of trial for treason, and also for other crimes, is in the House of Lords following impeachment by the House of Commons. Normally, the Lord Chancellor presides during trials; when a peer is accused of high treason, however, the Lord High Steward must preside. By convention, however, the Lord Chancellor would be appointed Lord High Steward for the duration of the trial—the post of Lord High Steward ceased to be regularly filled in 1421, being revived only for trials of peers and coronations. Whilst impeachments are still possible, no impeachment has occurred since 1806.

It was formerly possible to determine guilt in a trial by combat. Such a form of trial became obsolete in the fifteenth century, and was formally abolished in 1819.

Finally, it is possible for Parliament to pass an act of attainder, which pronounces guilt without a trial. Historically, acts of attainder have been used against political opponents when speedy executions were desired. In 1661, Parliament passed acts posthumously attainting Oliver Cromwell, Henry Ireton and Bradshaw—who were previously involved in Charles I's trial—of treason. These three individuals were posthumously executed, and are the only individuals to have suffered the fate under English treason laws. (In Scotland, an even more curious procedure was once employed in 1540, when a court summoned Robert Leslie , who was deceased, for a trial for treason. The Estates-General declared the summons lawful; Leslie's body was exhumed, and his bones were presented at the bar of the court. This procedure was never used in England.)

Procedures

Certain special rules procedures have historically applied to high treason cases. The Privilege of the Peerage and Parliamentary Privilege preclude the arrest of certain individuals (including peers, wives and widows of peers and members of Parliament) in many cases, but treason was not included (nor were felony or breach of the peace). Similarly, an individual could not claim sanctuary when charged with high treason; this distinction between treasons and felonies was lost as sanctuary laws were repealed in the late seventeenth and early nineteenth century. The defendant, furthermore, could not claim the benefit of clergy in treason cases; but the benefit of the clergy, as well, was abolished during the nineteenth century.

Formerly, if an individual stood mute and refused to plead guilty or not guilty for a felony, he would be tortured until he enter a plea; if he died in the course of the torture, his lands would not be seized to the Crown, and his heirs would be allowed to succeed to them. In cases of high treason, however, an individual could not save his lands by refusing to enter a plea; instead, a refusal would be punished by immediate forfeiture of all estates. This distinction between treasons and felonies ended in 1772, when the court was permitted to enter a plea on a defendant's behalf.

The evidence of at least two witnesses to overt acts proving the same allegation of high treason have always been necessary, except in forgery and counterfeiting cases. Formerly, an individual was not entitled to assistance of counsel in any capital case, including treason; the rule, however, was repealed during the reign of William III.

Punishment

The form of execution once suffered by traitors was barbarous and torturous. The condemned could not walk or be carried to the place of execution; the law required that he be drawn. It was possible to drag the traitor along the ground, but, almost always, he was instead placed on a hurdle and drawn to the place of execution by a horse. The individual would then be hung by the neck, but not allowed to die. (In other words, a noose would be tied around his neck, but there would be no "drop" to ensure that his neck breaks.) Whilst still alive, the offender would be cut down and allowed to drop to the ground. He would be stripped of his clothes, and his genitals cut off. His viscera were pulled out and burnt before his own eyes. The offender's heart and other organs would then be torn out of his body. By this time, the offender would probably have died from damage to his vital organs. Nonetheless, the gruesome process continued. The traitor would be decapitated, and his body cut into four quarters. The body parts would be at the disposal of the Sovereign; normally, they were gibbetted or publicly displayed. This tortuous sentence was amended in 1814 so that the offender would hang to death; the disembowelling, beheading and quartering continued to be performed posthumously.

As the above sentence involved nudity, it was not applied to women, who were burnt to death instead. Individuals of noble birth were not subjected to either form of torture; instead, they were merely beheaded. Sometimes, even the sentences of commoners were commuted to beheading. Men convicted of high treason for counterfeiting were subject to hanging, but not the subsequent torture; women convicted of high treason, however, were in all cases burnt.

In addition to being tortured and executed, a traitor was also deemed "attainted." The first consequence of attainder was forfeiture; all lands and estates of a traitor were lost to the Crown. In cases of felony, the lands were confiscated only for one year and one day, but in cases of high treason the lands were forever lost to the Crown. A second consequence of attainder was corruption of blood; the attainted person could neither inherit property, nor transmit it to his or her descendants.

In 1870, both attainder and hanging, drawing and quartering were abolished; the sole punishment was hanging. Burning at the stake had previously been replaced by hanging in 1790. By 1965, capital punishment had been abolished for almost all crimes, but was still permitted for high treason (as well as piracy with violence) until 1998. Since 1998, the maximum punishment for high treason became life imprisonment.

The last beheading of a peer for high treason was that of Simon Fraser, 11th Lord Lovat in 1747. The last execution by burning for high treason was that of Catherine Murphy in 1789. The last hanging, drawing and quarterings were those of the Cato Street Conspirators in 1820. (In this case, however, the drawing and quartering were omitted, but the beheading was not, by royal command.) The last execution of any kind for high treason was that of William Joyce in 1946. No person has been prosecuted for treason since Joyce.