Page:Encyclopædia Britannica, Ninth Edition, v. 23.djvu/547

Rh showed and declared before the king and his parliament whether it ought to be judged treason or felony. The statute, so far as it defines the offence, is still law, except the clauses as to counterfeiting the seal, coining, and petit treason, repealed respectively, after a considerable amount of intermediate modification by statute, by 11 Geo. IV. and 1 Will. IV. c. 66, 2 and 3 Will. IV. c. 34, 30 Geo. III. c. 48, and 9 Geo. IV. c. 31. Petit treason is now treated as murder, 24 and 25 Vict. c. 100. From the time of the passing of the Statute of Treasons the limits of treason were continually being extended for a time, and again reduced to the bounds fixed by the statute. It protected only the king's life, and its insufficiency was supplemented in periods of danger by legislation, often of a temporary nature. Under Richard II. and Henry VIII. many new offences were made treason, but the Acts creating these new treasons were repealed at the earliest opportunity by the parliaments of their successors, and the Statute of Treasons was made the final standard by 1 Mary, sess. 1, c. 1. The reign most prolific in statutory additions to the law of treason was undoubtedly that of Henry VIII. Legislation in this reign was little more than a register of the fluctuating opinions of the monarch. Thus, by 25 Hen. VIII. c. 22 it was treason not to believe Mary illegitimate and Elizabeth legitimate; by 28 Hen. VIII. c. 7 it was treason to believe either legitimate; by 35 Hen. VIII. c. 1 it was treason not to believe both legitimate. An interesting act of this reign, 37 Hen. VIII. c. 10, shows that a class of men like the Roman delatores must have been called into existence by all the new legislation. The Act constituted it felony to make anonymous charges of treason without daring to appear in support of them before the king or council. Out of the mass of Henry VIII.'s Acts, only two are still law, 28 Hen. VIII. c. 15 and 35 Hen. VIII. c. 2, giving power to try treasons committed within the jurisdiction of the admiralty and out of the realm. Many other instances of offences of a temporary kind made treason at different times occur among the statutes, especially in those levelled at the papal jurisdiction by the parliaments of Elizabeth. A few of the more interesting of other kinds may be briefly noticed. It was treason by 21 Ric. II. c. 4 to attempt to appeal or annul judgments made by parliament against certain traitors; by 2 Hen. V. st. 1, c. 6, and 29 Hen. VI. c. 2 to break a truce or safe-conduct; by 5 and 6 Edward VI. c. 11 to hold castles, fortresses, or munitions of war against the king; by 17 Car. II. c. 5 to adhere to the United Provinces; by 9 Will. III. c. 1 to return without licence if an adherent of the Pretender; by 12 and 13 Will. III. c. 3 to correspond with the Pretender; and by 57 Geo. III. c. 6 to compass or imagine the death of the prince regent. In addition to these, many Acts of attainder were passed at different times. One of the most severe was that against Catherine Howard, 33 Hen. VIII. c. 21, which went as far as to make it treasonable for any queen to conceal her ante nuptial incontinence. Other Acts were those against Archbishop Scrope, Owen Glendower, Jack Cade, Lord Seymour, Sir John Fenwick, James Stuart, and Bishop Atterbury. In one case, that of Cromwell, Ireton, and Bradshaw, an Act of attainder was passed after the death of those guilty of the treason, 12 Car. II. c. 30. At times Acts of indemnity were passed to relieve those who had taken part in the suppression of rebellion from any possible liability for illegal proceedings. Three such Acts were passed in the reign of William III.

The Statute of Treasons, as interpreted by the judges, is still the standard by which an act is determined to be treason or not. The judicial interpretation has been sometimes strained to meet cases scarcely within the contemplation of the framers of the statute: e.g., it became established doctrine that a conspiracy to levy war against the king's person or to imprison or depose him might be given in evidence as an overt act of compassing his death, and that spoken words, though they could not in themselves amount to treason, might constitute an overt act, and so be evidence. Besides decisions on particular cases, the judges at different times came to general resolutions which had an appreciable effect on the law. The principal resolutions were those of 1397 (confirmed by 21 Ric. II. c. 12), of 1557, and those agreed to in the case of the regicides at the Restoration and reported by Sir John Kelyng. A remarkable resolution in favorem rei among the latter was that a prisoner ought not to be ironed during trial. The result of judicial decisions on the Statute of Treasons was summed up in Acts passed in 1786, made permanent in 1817 and in 1848 (57 Geo. III. c. 6 and 11 Viet. c. 12, the latter often called the Treason Felony Act). The effect of this legislation, according to Mr Justice Stephen, is that such of the judicial constructions as extend the imagining of the king's death to imagining his death, destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint, have been adopted, while such of the constructions as make the imagining of his deposition conspiring to levy war against him, and instigating foreigners to invade the realm, have not been abolished, but are left to rest on the authority of decided cases. The present state of the law has been incorporated by skilled lawyers in the draft criminal code, which will no doubt become an Act when parliament has leisure to devote to matters of this kind. The code draws a distinction between treason and treasonable crimes, the former including such acts (omitting those that are obviously obsolete) as by the Statute of Treasons and subsequent legislation are regarded as treason proper, the latter including the crimes contained in the Act of 1848. In the words of the code (§ 76) "treason is (a) the act of killing Her Majesty, or doing her any bodily harm tending to death or destruction, maim or wounding, and the act of imprisoning or restraining her; or (b) the forming and manifesting by an overt act an intention to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or to imprison or to restrain her; or (c) the act of killing the eldest son and heir-apparent of Her Majesty, or the queen consort of any king of the United Kingdom of Great Britain and Ireland; or (d) the forming and manifesting by an overt act an intention to kill the eldest son and heir-apparent of Her Majesty, or the queen consort of any king of the United Kingdom of Great Britain and Ireland; or (e) conspiring with any person to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or conspiring with any person to imprison or restrain her; or (f) levying war against Her Majesty either with intent to depose Her Majesty from the style, honour, and royal name of the imperial crown of the United Kingdom of Great Britain and Ireland or of any other of Her Majesty's dominions or countries; or in order by force or constraint to compel Her Majesty to change her measures or counsels, or in order to intimidate or overawe both Houses or either House of Parliament; or (g) conspiring to levy war against Her Majesty with any such intent or for any such purpose as aforesaid; or (h) instigating any foreigner with force to invade this realm or any other of the dominions of Her Majesty; or (I) assisting any public enemy at war with Her Majesty in such war by any means whatso ever; or (j) violating, whether with her consent or not, a queen consort, or the wife of the eldest son and heir-apparent for the time being of the king or queen regnant." There are a few other Acts still in force besides those of 1817 and 1848 which have dealt with substantive law. By 11 Henry VII. c. 1 obedience to the de facto sovereign for the time being is not treason. By 1 Anne st. 2, c. 21, it is treason to endeavour to hinder the next successor to the crown from succeeding, and by 6 Anne c. 41 it is treason to maliciously, advisedly, and directly by writing or printing maintain and affirm that any person has a right to the crown otherwise than according to the Acts of Settlement and Union, or that the crown and parliament cannot pass statutes for the limitation of the succession to the crown.

The Acts dealing with procedure and punishment are more numerous, and are characterized by a slowly increasing favour shown to the accused, in fact, considerably greater than in felony, for counsel were not allowed to prisoners in charges of felony until 1836, and such prisoners are still not entitled to a copy of the indictment or the names of the witnesses or jury. With respect to the mode of trial, the effect of common law and legislation is that there are now four varieties, (q.v.), trial of a peer