Report No. 35
English Law of Treason
English Law of Treason
The relevant provisions of the treason Acts of 1351 and 1795 are quoted below:-
"Treason Act, 1351 (25 Edw. 3, et. 5, c. 2)-Declaration of Treasons.
Item, whereas diverse opinions have been before this time in what case treason shall be said, and in what not; the King, at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth; that is to say, when a man doth compass or imagine the death of our lord the King, or of our lady his Queen, or of their eldest son and heir; or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir;
or if a man do levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably ('provalement') attained of open deed by the people of their condition and if a man slea (sic) the chancellor, treasurer, of 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 offences [see Steph. Dig. Cr. L. (9th ed.) 59]. And it is to be understood, that in the cases above rehearsed, and ought to be judged treason which extends to our lord the King, and his royal majesty:
And if precise any man of this realm ride armed covertly or secretly with men of arms against any other, to slay him or rob him, or take him or retain him till he hath made fine or ransom for to have his deliverance, it is not in the mind of the King nor his council, that in such case it shall be judged treason, but shall be judged felony or trespass according to the laws of the land of old time used, and according as the case requireth."
"Treason Act, 1795, (36 Geo. 3, c. 1) s..-Plots to kill, etc., the sovereign or his or her heirs and successors.
If any person or persons whatsoever shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint, of the person of His Majesty, His heirs and successors and such compassings, imaginations, inventions, devices, or intentions or any of them, shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed; being legally convicted thereof, upon the oaths of two lawful and credible witnesses, upon trial or otherwise convicted or attained by the course of law, then every such person and persons, so as aforesaid offending, shall be deemed, declared and adjudged to be a traitor and traitors, and shall suffer pains of death as in cases of high treason."
Certain other acts were declared to be felony-now "treason felony", by the Acts of 1795 and 1848. Punishment for such acts is not death. Hence, we need not discuss them in detail.1
It is no longer necessary to have a minimum of two witnesses to prove treason.2 As to treason which is not high treason, but merely a felony, the punishment for imprisonment of life is laid down by the "Treason Felony" Act.3
1. See Russell on Crime, (1964), Vol. I, pp. 210-211.
2. See section 1, Treason Act, 1945, assimilating the procedure in all treason trials to the procedure in cases of murder.
3. Section 3 of the Treason Felony Act, 1848 (11 and 12, Vic., C. 12). See Archbold, Criminal Pleading, etc., (1962), p. 1222, para. 3041. (compassing the deposition of the Queen, or compelling the Queen to change her measures, etc., or overawing Parliament, etc.)
The following chart will show the comparative position regarding punishment in England and in India on the various Acts which constitute treason according to English law:-
|Compassing or imagining the death of the King or violating the King's companion, etc. (1351 Act).||Not relevant there being no King.|
|Levying war against the King in his realm or being adherent to the King's enemies in his realm, giving to them aid and comfort in the realm or elsewhere and thereof be provably attained of open deed by the people of their condition. (1351 Act). Punishment Death.||Waging war against the Government and abetting the waging of such war are punishable with death or imprisonment for life and also with fine. (Section 121, Indian Penal Code). Being adherent to enemies not mentioned.|
|Slaying the Chancellor, Treasurer or the King's justices, etc., (1351 Act). Punishment Death.||Governed by the ordinary law of culpable homicide and murder.|
|Compassing, imagining, inventing, devising or intending death or destruction, or any bodily harm tending to death or destruction, etc., of the persons of the King, etc (1795 Act).||Not relevant, there being no King.|
Being adherent to the King's enemies.-The above comparison of the English and the Indian provisions would show that, roughly speaking, the only category of treason about which there is no specific mention in the Indian Penal Code is that indicated by the words of the English Act "be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm or elsewhere". Under the words "adherent etc." an actual adherence must be proved.1
The leading cases under this head are the under-mentioned.2-3 In one of those cases, Sir Roger David Casement was tried for treason because he went to Germany during the First World War and there actively endeavoured to persuade other British Subjects (Irish Soldiers who were prisoners in Germany) to join an Irish brigade and assist Germany. He also took part in an expedition from Germany with the object of landing arms in Ireland for supply to Irishmen for being used on behalf of Germany. He was held guilty of treason by adhering to the King's enemies elsewhere than in the King's realm.4
In the other case, William Joyce was tried for traitorously contriving to aid the King's enemies ("adhering" to as well as "giving aid and comfort" to the enemies in areas without the realm of England) by broadcasting to British subjects propaganda on behalf of the enemies of the King.
The words "giving aid etc." would cover any act done by a British subject which strengthens or tends to strengthen the enemies of the Queen in the conduct of a war against the Queen or which weakens or tends to weaken the power of the Queen and of the country to resist or attack the enemies of the Queen.5
Regarding transmission of intelligence, an interesting case is that of Stone.6 There, Lord Kenyon C. J. observed that if the intelligence transmitted was such as was likely to prove useful to the enemies in enabling them "to annoy us, defend themselves or shape their attacks," sending such intelligence with a view to its reaching the enemy was undoubtedly high treason.
Thus, it may be noted that under these heads there is emphasis on enemies being adhered to or aided.
As to communication with enemies,7 the following extract from Halsbury8 would be helpful:-
"Communications with the enemy from which he may derive information enabling him to shape his attack or defence constitute an adherence to the enemy.9
The fact that the communications were intercepted and did not reach the enemy is immaterial10."
1. Archbold Criminal Pleading, etc., (1962), para. 3031.
2. Rex. v. Casement, (1917) 1 KB 98: (1916-1917) 1 All ER Rep 214 (CCA). For full facts see Lord Philips Leading Cases in Constitutional Law (1957), p. 130.
3. Joyce v. D.P.P., 1946 AC 347: (1946) 1 AER 186 (HL).
4. Leave to appeal was refused by the Attorney General. See Ducann English Treason Trials, (1964), p. 243.
5. Archbold Criminal Pleading, (1962) para. 3033 et seq.
6. R. v. Stone, 25 St. Tr. 1155, discussed in Archbold, (1962), para. 3034.
7. For an interesting discussion, see Preveyer, "Peace-time Espionage and the Law ", (1953) 6 Current Legal Problems, pp. 82, 85 to 88.
8. Halsbury, 3rd Edn., Vol. 10, p. 562, para. 1034.
9. Forst. 217; R. v. Grshme, (1961) 12 State Tr. 645; R . v. Gregg, (1708) 14 State Tr. 1371; R. v. Hensay, (1758) 19 State Tr. 1341 (1344); R. v. Maclane, (1797) 26 State Tr. 721 (796-797); R. v. Tyrie, (1782) 21 State Tr. 815; R. v. Jackson, (1795) 25 State Tr. 783; R. v. Shears, (1798) 27 State Tr. 255.
In R. v. Stone, (1796) 25 State Tr. 7155, it was contended by Erskine on behalf of the prisoner that such communications were not traitorous, if the prisoner's object and intention were not to assist the enemy but to benefit this country by dissuading the enemy from continuing the war (ibid., at p. 1372 et seq). Lord Kenyon C. J. does not appear to have ruled against this contention (ibid; at pp. 1432, 1434, and 1435), and the jury acquitted the prisoner, apparently upon this ground.
In R. v. M., (1915) 11 Cr App Rep 207 (214), in which a person was charged with attempting to communicate information calculated to be useful to the enemy in contravention of regulations made under the Defence of the Realm Consolidation Act, 1914 (5 and 6 Geo. 5, C. 8), it was held that the truth or falsity of the information supplied was immaterial except as to the possible defence of intention not to assist but to mislead the enemy. It is apprehended the same principle would apply in relation to treason.
10. R. v. Hensey, (1758) 19 State Tr. 1341 (1372); R. v. Dela Mottee, (1781) 21 State Tr. 687 (808); R. v. Gregg, (1708) 14 State Tr. (1371), R. v. Maclane, (1797) 26 State Tr. 721. Such cases may also, it appears, be charged as compassing or imagining the death of the Sovereign; see p. 558, ante.