By Stephanie Brown (@StephEmmaBrown)
In 1305, William Wallace was hanged, drawn, and beheaded. Notes from the court state that ‘his heart, liver, lungs and all his entrails be cast into the fire and burned’ and ‘his body be cut into four parts.’ His head was to be placed on London Bridge, with each ‘quarter’ of Wallace hung at Newcastle upon Tyne, Berwick, Stirling, and the town of St. John ‘for the terror and punishment of all who pass by’.[1]
Crimes against the monarch or realm have often been treated harshly under English common law. Owing to Wallace’s role in the Scottish wars perhaps this severe punishment was to be expected. Legal historian, Sir John Baker, suggested that absence of legislation on treason was a risk to liberty and justice.[2] A tyrannical ruler could choose to inflict the greatest punishment for the slightest offence. This is the likely reason why in 1351 the Commons and the Lords petitioned King Edward III to outline treason, resulting in it being the first major offence to be defined by statute.[3]
The Treasons Act of 1351 had two categories: high and petty treason. High treason was associated with the unnatural death of the monarch, their consort, and the heir to the throne.[4] Yet it was not restricted to regicide or even plotting. In 1536, Anne Boleyn was charged with treason for supposedly imagining the death of King Henry VIII.[5] High treason also encompassed violating the queen, the monarch’s eldest unmarried daughter, or the wife of the heir to the throne. Furthermore, protection was not reserved for the royal family, since killing the chancellor, treasurer, or the king’s judges was equally defined as treason. Finally, high treason included levying war against the realm and supporting enemies of the crown.[6]
Petty treason was the killing of a person to whom one ‘oweth faith and obedience.’[7] For example, if a wife murdered her husband the charge would have been petty treason, not homicide. Moreover, until 1790, women found guilty of petty treason were burned.[8] It was not until 1828 that husband-murder was reduced to a felony.[9] In contrast, petty treason did not apply to a husband who murdered his wife. In fact, due to the defence of provocation, husbands were often only charged with manslaughter if a domestic homicide resulted from catching an unfaithful wife.[10]
While petty treason has now been reduced to homicide, high treason remains on the statute books. Earlier this year, two MPs petitioned to have the Treasons Act of 1351 modernised. Khalid Mahmood, a Labour MP, wants the Act to be used against citizens who fight for so-called Islamic State. The opposing argument is that such cases can be dealt with by existing terrorism legislation.[11] The indistinct boundary between terrorism and treason is not limited to modern examples. Guy Fawkes, whose treason has its own holiday, was described by counter-terrorism expert Haras Rafiq as “the equivalent of a modern-day jihadist.”[12]
The appeal of the Treason Act of 1351 was, and is, its sentencing power. Treason remains the most severe offence in English and Welsh law and the punishment reflects this.[13] In 1839, the Chartist leaders of the Newport Rising were the last people condemned to be hanged, drawn, and quartered, although their sentences were commuted to transportation and they were later pardoned.[14] In 1946, Nazi propagandist, William Joyce, known as Lord Haw-Haw, was the last person to be executed for treason. In spite of this, high treason remained punishable by death until 1998. Currently, if anyone were to be convicted under the Treasons Act, they would face imprisonment for life. However, for now, the Act appears dormant, having not been used since the end of the Second World War.[15]
References:
[1] https://www.bu.edu/phpbin/lawyearbooks/display.php?id=8618
[2] J. H. Baker, An Introduction to English Legal History, 3rd edn. (London, 1990), pp.599-600.
[3] 25 Edw. III, St. 5 and Baker, pp.599-600.
[4] 25 Edw. III, St. 5.
[5] M. Stone Schauer and F. Schauer, ‘Law as the Engine of State: The Trial of Anne Boleyn’, William & Mary Law Review, 22 (1980), 49-84.
[6] 25 Edw. III, St. 5.
[7] M. Lockwood ‘From Treason to Homicide: Changing Conceptions of the Law of Petty Treason in Early Modern England’, The Journal of Legal History, 34:1, (2013) 31-49.
[8] L. Yetter, eds. Public Execution in England, 1573-1868 (London, 2010), p.xi and Doggett, pp.49-51.
[9] M. E. Doggett, Marriage, Wife-beating and the Law in Victorian England: ‘Sub Virga Viri’ (London, 1992), pp.49-51.
[10] Doggett, pp.49-51.
[11] https://www.bbc.co.uk/news/uk-politics-44954200.
[12] https://www.historyextra.com/period/stuart/guy-fawkes-is-like-a-modern-day-jihadist-says-counter-terrorism-expert/.
[13] Baker, pp.599-600.
[14]http://newspapers.library.wales/view/3393095/3393097/4/NEWPORT%20RISING%20AND%20FROST%20AND%20TREASON%20AND%20DRAWN%20AND%20CHARTIST.
[15] https://www.bbc.co.uk/news/uk-politics-44954200.
Image: Hanged, drawn and quartered (public domain via Wikimedia Commons).
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