How treason fell out of fashion

Treason is a curious offence. It’s clearly serious, but it’s hard to pin down precisely what it includes. In England it has included fighting against the king, ‘compassing and imagining his death’, supporting his enemies inside or outside the realm, hopping into bed with his wife, heir, or daughter-in-law, and counterfeiting coinage. 

Treason has antecedents – or parallels – in Rome, notably the crimes perduellio and crimen laesae maiestatis, which were committed against the state. English treason – arising from the laws of England’s Anglo-Saxon predecessor kingdoms – focused on the King’s person, and personal obligations owed to him. After 1066, Norman and Angevin kings enthusiastically embraced this, using treason as a stick for beating magnates who threatened their own interests. 

Royal discretion receded as a confident baronage sought to enforce the rights wrung from King John at Runnymede, culminating in the offence being made statutory in the Treason Act 1351. Treason had a new lease of life under the Tudors, as Henry VIII’s parliaments extended it to words, especially words challenging the legality of Henry’s divorce from Catherine of Aragon, and refusals to recognise his claimed authority over the Church. The latter sent Thomas More to the scaffold. Henry’s successors continued in a similar vein, as did the Stuarts, for whom religious dissent and Jacobitism caused alarm, while the victors of the Civil War, Restoration, and Glorious Revolution gleefully used treason to take revenge on their beaten opponents.

By the mid-19th century, treason had fallen out of fashion. Concentration of power in parliament rather than the King increasingly made the old offences outdated, while courts began to reject broad and imaginative constructions, such as that a political protest necessarily ‘compassed and imagined’ the King’s death. The public and judiciary also began to recoil from the traditional punishment – death by hanging, drawing and quartering – prompting the creation of lesser offences covering similar ground but without the death sentence attached. 

Boyer and Nicholls provide a readable and fascinating short history. The work is well researched, drawing on numerous legal and historical sources. They capture well the origins and development of treason, and their conclusion on the utility of a law intended to deal with the concerns of mediaeval monarchs in the 21st century is, for me, persuasive. One for history buffs.

James E Hurford is a solicitor at the Government Legal Department, London