Treason Act 1351

{{Infobox UK legislation

|short_title=Treason Act 1351{{efn|The citation of this act by this short title was authorised by section 1 of, and schedule 1 to, the Short Titles Act 1896. Due to the repeal of those provisions, it is now authorised by section 19(2) of the Interpretation Act 1978.}}

|parliament=Parliament of England

|long_title=Declaration what Offences shall be adjudged Treason.{{efn|These words are printed against this act in the second column of schedule 1 to the Short Titles Act 1896, which is headed "Title".}}

|year=1351

|citation=25 Edw. 3 Stat. 5. c. 2

|territorial_extent={{ubli|England and Wales|Ireland}}

|royal_assent=

|commencement=13 January 1352{{efn|Start of session.}}

|repeal_date=

|amendments=Forgery Act 1830

|related_legislation=

|repealing_legislation=

|status=Amended

|original_text=https://babel.hathitrust.org/cgi/pt?id=pst.000017915496&seq=513

|revised_text=http://www.legislation.gov.uk/aep/Edw3Stat5/25/2/section/II

|}}

The Treason Act 1351 (25 Edw. 3 Stat. 5. c. 2) is an act of the Parliament of England where, according to William Blackstone, common law treason offences were enumerated and no new offences were created.{{cite book |title=The Rights of Persons, According to the Text of Blackstone: Incorporating the Alterations Down to the Present Time |url=https://archive.org/details/rightspersonsac00stewgoog |first1=William |last1=Blackstone |authorlink1=William Blackstone |first2=James |last2=Stewart |date=1839 |page=[https://archive.org/details/rightspersonsac00stewgoog/page/n93 77] |quote=Statutes also are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what common law is and ever hath been. Thus the statute of treasons, 25 Edw. III cap. 2 doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at common law.}} It is one of the earliest English statutes still in force, although it has been very significantly amended.[http://www.legislation.gov.uk/aep/Edw3Stat5/25/2/contents The Treason Act 1351] legislation.gov.ukArchbold 2013, para. 25-1 It was extended to Ireland in 1495Poynings' Law (10 Hen.7 c.22) and to Scotland in 1708.{{cite web |title=Treason Act 1708 |website=legislation.gov.uk |publisher=The National Archives |date=1708 |id=7 Anne c.21 |url=https://www.legislation.gov.uk/apgb/Ann/7/21}} The act was passed at Westminster in the Hilary term of 1351, in the 25th year of the reign of Edward III and was entitled "A Declaration which Offences shall be adjudged Treason". It was passed to clarify precisely what was treason, as the definition under common law had been expanded rapidly by the courts until its scope was controversially wide. The act was last used to prosecute William Joyce, better known as "Lord Haw-Haw", in 1945 for collaborating with Germany in World War II.

The act is still in force in the United Kingdom. It is also still in force in some former British colonies, including New South Wales.The Crimes Act 1900 (NSW), [http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s16.html section 16]{{cite news |url=https://www.theguardian.com/law/2014/oct/17/treason-act-facts-british-extremists-iraq-syria-isis |title=Treason Act: the facts |date=17 October 2014 |accessdate=12 May 2015 |newspaper=The Guardian |last=Aisha |first=Gani}} Like other laws of the time, it was written in Norman French.

The act is the origin of the definition of treason in the United States (in Article III of the Constitution). Joseph Story wrote in his Commentaries on the Constitution of the United States that:

{{blockquote|they have adopted the very words of the Statute of Treason of Edward the Third; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages.{{cite book |url=https://lonang.com/library/reference/story-commentaries-us-constitution/sto-339/ |last=Story |first=Joseph |authorlink=Joseph Story |date=1833 |title=Commentaries on the Constitution of the United States |section=1793}}}}

Origin

Until 1351 treason was defined by the common law. The king's judges gradually expanded the scope of treason under the pretext that any "assortment of royal power", by which was meant doing anything which only the king (or his officers) could legally do, was considered treason – even hunting deer in the king's forests.{{cite book |last=Kenny |first=C. |title=Outlines of Criminal Law |publisher=Cambridge University Press |date=1936 |edition=15th}}{{rp|307}} When in 1348, Sir John Gerberge of Royston was convicted of treason for falsely imprisoning William de Boletisford and taking his horse, until he paid him £90{{Cite book |last=Stephen |first=James Fitzjames |url=https://www.worldcat.org/oclc/2781498 |title=A history of the criminal law of England. |publisher=Macmillan |year=1883 |isbn=0-930342-77-1 |location=London |pages=246 |oclc=2781498}} (approximately {{Inflation|UK|90|1351|r=-4|fmt=eq|cursign=£}}), the barons compelled Edward III to agree to an Act of Parliament to restrict the definition of treason to definite limits.{{rp|307}}

Joseph Story wrote: "This statute has ever since remained the pole star of English jurisprudence upon this subject."{{cite book |last=Story |first=Joseph |authorlink=Joseph Story |date=1833 |title=Commentaries on the Constitution of the United States |section=Paragraph 1791}} Although some of the treason statutes enacted between 1352 and 1640 lost their importance over time, notably those of Henry VIII regarding his supremacy, 25 Edw 3 was the law in force cited by judges during the reign of Charles I.{{cite journal |last1=Hast |first1=Adele |title=State Treason Trials During the Puritan Revolution, 1640-1660 |journal=The Historical Journal |date=1972 |volume=15 |issue=1 |pages=37–53 |doi=10.1017/S0018246X00001837}} When Thomas Wentworth, 1st Earl of Strafford was charged with high treason his attorney argued "the statute ever makes the Treason", insisting Strafford had not committed treason by the statute 25 Edw. 3. Despite an accusation of common law treason,"endeavoring to subvert the fundamental laws and government of the realm of England and Ireland; and instead thereof to introduce a tyrannical government against law is treason by the common law; that Treasons at the common law are not taken away by the statute of 25 Edw. 3" since Treason by statute could not be proven, the House of Commons passed a bill of attainder against Strafford, who was subsequently executed, over the objections of the king.Cobbett's State Trials [https://archive.org/details/dli.bengal.10689.20285 Vol.3]

Content

The act distinguished two varieties of treason: high treason and petty treason (or petit treason), the first being disloyalty to the Sovereign, and the second being disloyalty to a subject. The practical distinction was the consequence of being convicted: for a high treason, the penalty was death by hanging, drawing and quartering (for a man) or drawing and burning (for a woman), and the traitor's property would escheat to the Crown; in the case of a petty treason the penalty was drawing and hanging without quartering, or burning without drawing; and property escheated only to the traitor's immediate lord.

The forfeiture provisions were repealed by the Forfeiture Act 1870 (33 & 34 Vict. c. 23), and the penalty was reduced to life imprisonment by the Crime and Disorder Act 1998.{{cite legislation UK |type=act |year=1998 |chapter=37 |act=Crime and Disorder Act 1998 |section=36}}

A person was guilty of high treason under the act if they:

"compassed or imagined" (i.e. planned; the original Norman French is "fait compasser ou ymaginer") the death of the king, his wife or his eldest son and heir (following the coming into force of the Succession to the Crown Act 2013 on 26 March 2015,{{cite Hansard |house=House of Commons |title=Commencement of Succession to the Crown Act 2013: Written statement |url=http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2015-03-26/HCWS490/ |date=26 March 2015 |accessdate=26 March 2015}} this has effect as if the reference were to the eldest child and heir);{{cite legislation UK |type=act |year=2013 |chapter=20 |act=Succession to the Crown Act 2013 |schedule=0}}
violated the king's companion, the king's eldest daughter if she was unmarried or the wife of the king's eldest son and heir (following the coming into force of the Succession to the Crown Act 2013, this has effect as if the reference were to the eldest son only if he is also the heir);
levied war against the king in his realm;
adhered to the king's enemies in his realm, giving them aid and comfort in his realm or elsewhere;
counterfeited the Great Seal or the Privy Seal (repealed and re-enacted in the Forgery Act 1830 (11 Geo. 4 & 1 Will. 4. c. 66); death penalty abolished in 1832;Forgery, Abolition of Punishment of Death Act 1832 reduced to felony in 1861{{cite legislation UK |type=act |year=1861 |chapter=98 |act=Forgery Act 1861 |section=1}} (except in Scotland{{cite legislation UK |type=act |year=1861 |chapter=98 |act=Forgery Act 1861 |section=55}}));
counterfeited English coinage or imported counterfeit English coinage (reduced to felony in 1832Coinage Offences Act 1832);
killed the Chancellor, Treasurer (this office has long been vacant{{cite book |last1=Sainty |first1=John Christopher |title=Office-Holders in Modern Britain: Volume 1, Treasury Officials 1660–1870 |date=1972 |publisher=University of London |location=London |isbn=0485171414 |pages=16–25 |url=https://www.british-history.ac.uk/office-holders/vol1/pp16-25 |access-date=19 October 2021}}), one of the king's justices (either of the King's Bench or the Common Pleas), a justice in eyre, an assize judge, and "all other Justices", while they are performing their offices. (This did not include the barons of the Exchequer.{{cite book |title=Hawkins' Treatise of the Pleas of the Crown |date=1824 |url=https://books.google.com/books?id=vZc0AAAAIAAJ |page=19 |section=Section 47|via=Google Books|last1=Hawkins |first1=William |last2=Curwood |first2=John }})

The penalty for counterfeiting coins was the same as for petty treason.1 Hale [https://books.google.com/books?id=2KoDAAAAQAAJ&pg=PA218 219-220] The offence had previously been called petty treason, before the Act elevated it to high treason.{{Cite web |url=http://www.lonang.com/exlibris/blackstone/bla-406.htm |title=Commentaries on the Laws of England, William Blackstone, Book 4 chapter 6 |access-date=30 September 2011 |archive-date=2 October 2011 |archive-url=https://web.archive.org/web/20111002061239/http://www.lonang.com/exlibris/blackstone/bla-406.htm |url-status=dead }}

Under the act petty treason was the murder of one's lawful superior: that is if a servant killed his master or his master's wife, a wife killed her husband or a clergyman killed his prelate. This offence was abolished in 1828.

The act originally envisaged that further forms of treason would arise that would not be covered by the act, so it legislated for this possibility. The words from "et pr ceo q plusurs auts cases de semblable treson" onwards have been translated as:

{{blockquote|And because that many other like Cases of Treason may happen in Time to come, which a Man cannot think nor declare at this present Time; it is accorded, That if any other Case, supposed Treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to Judgement of the Treason till the Cause be shewed and declared before the King and his Parliament, whether it ought to be judged Treason or other Felony.}}

The act in Scotland

Following the union of England and Scotland by the Acts of Union 1707, Scotland continued to have its own treason laws until the Treason Act 1708 (7 Ann. c. 21) abolished Scottish treason law and extended English treason law to Scotland. This act also made it treason to counterfeit the Great Seal of Scotland,Section 12 and to kill the Scottish Lords of Session and Lords of JusticiarySection 11 (in addition to forging the British – formerly English – seal, and killing English judges). However while in England and Ireland forgery of the seal of Great Britain ceased to be treason under the Forgery Act 1861, this act did not apply to Scotland. Also, forging the Scottish seal is still treason in Scotland,Treason Act 1708, section 12 but has not been treason in England or Ireland since 1861.Forgery Act 1861

The 1351 act still applies in Scotland today, and is a reserved matter which the Scottish Parliament has no power to modify.

Interpretation

Although the first kind of treason is described as "compassing", the offence does not consist of purely thinking. A subsequent clause which requires that an "overt act" must also be proven has been held by judges to apply to all kinds of treason.{{rp|308}}

Adhering to "enemies" does not include adhering to rebels or pirates.{{rp|308}}

During the trial of Roger Casement, who in 1916 was accused of collaborating with Germany during World War I, the defence argued that the Act applied only to activities carried out on British soil, while Casement had committed the acts of collaboration outside Britain. However, closer reading of the originally unpunctuated medieval document allowed for a broader interpretation, leading to the accusation by his supporters that Casement was "hanged by a comma". The court decided that a comma should be read in the text, crucially widening the sense so that "in the realm or elsewhere" meant where acts were done and not just where the "King's enemies" might be.{{cite news |title=Roger Casement's Appeal Fails |work=Birmingham Evening Dispatch |date=18 July 1916 |accessdate=30 December 2014 |url=http://www.britishnewspaperarchive.co.uk/viewer/bl/0000671/19160718/013/0001| via = British Newspaper Archive|url-access=subscription }}{{cite book |first=G. H. |last=Knott |title=The trial of Sir Roger Casement |publisher=Canadian Law Book Co. |location=Toronto |date=1917 |url=https://archive.org/details/trialofsirrogerc00caseuoft}}

Repeals

The clauses about forgery and counterfeiting were repealed in 1830 and 1832. The clause beginning "et pr ceo q plusurs" was repealed by the Statute Law Revision Act 1948. The clause beginning "Et si per cas" (clarifying that robbery and kidnapping were not treason) was repealed by the Criminal Law Act 1967 and the Criminal Law Act (Northern Ireland) 1967.

The act was repealed in IrelandThe Statute Law Revision Act 1983, [http://www.irishstatutebook.ie/1983/en/act/pub/0011/sec0001.html#zza11y1983s1 section 1] and [http://www.irishstatutebook.ie/1983/en/act/pub/0011/print.html#sched the Schedule] on 16 May 1983,{{efn|The date of promulgation by the president.}} and in New ZealandThe Crimes Act 1961, section 412(1) and Schedule 4 on 1 January 1962.The Crimes Act 1961, section 1(2)