The Treason Act 1351 is one of the oldest pieces of legislation still in force, though not the oldest (Magna Carta 1215 for one). It was last used to execute someone for high treason in 1946. The threat of it was invoked for British citizens who fought for the Taleban.

A lot of urban legends develop about old laws and "dumb laws", and this particular one has its fair share. One oft-repeated tale is that the death penalty still exists in Britain for a small clutch of strange offences. No, it doesn't, not now. The death penalty was totally abolished in 1998. But here is the story of treason in the United Kingdom.

The Treason Act, "A Statute made at Westminster; In the Parliament holden in the Feast of Saint Hilary; In the Twenty-fifth year of the Reign of King Edward the Third" (25 Edw. III, stat.5, c.2), was passed to clarify which acts constituted treason in England. To be specific, it codifies "high treason", offences against King and Country, as opposed to "petty treason", the disobedience of a wife against her husband. The Act was, of course, written in Anglo-French. Here are the parts that still remain in force:

Auxint perceo que diverses opinions ount este einz ces heures qeu cas, quant il avient doit estre dit treson, & en quel cas noun, le Roi a la requeste des Seigneurs & de la Commene, ad fait declarissement que ensuit, Cest assavoir; quant home fait compasser ou ymaginer la mort nostre Seigneur le Roi, ma dame sa compaigne, ou de lour fitz primer & heir; ou si home violast la compaigne le Roi, ou leisnesce fille le Roi nient marie, ou la compaigne leisne fits & heir du Roi; & si home leve leve de guerre contre nostre dit Seigneur le Roi en son Roialme, ou soit aherdant as enemys nostre nostre Seigneur le Roi & le Roialme, donant a eux eid ou confort en son Roialme, ou per aillours, & ceo provablement soit atteint de overt faite per gentz de lour condicion: ... et si home tuast Chanceller, Tresorer, ou Justice nostre Seigneur le Roi del un Baunk ou del autre, Justice en Eir & del assizes & toutes autres Justices assignez a oier & terminer esteiantz en lour places en fesantz lour offices: et fait a entendre qen les cases suisnomez doit estre ajjuge treson que sestont a nostre Seigneur le Roi & a sa roial majeste:...

Here's a translation - not mine:
Item, whereas divers opinions have been before this time in what case reason 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 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 attainted of open deed by the people of their condition:. . . and if a man slea the chancellor, treasurer, or the King's justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and determine, being in their places, doing their offices: and it is to be understood, that in the cases above rehearsed, that ought to be judged treason which extends to our lord the King, and his royal majesty:. .

Unpacking that, we find various classes of act that are treasonable.
  • plotting the death of the King or certain other members of the Royal Family;
  • violating certain females of the Royal Family;
  • making war against the King or aiding the King's enemies;
  • killing certain high officials.

Notice that the death penalty is not prescribed for these. Of course it was levied for treason, but it must not be assumed that they go hand in hand. In fact, the legal position in the UK in 2003 is that all of the above are high treason, but that none of them, or any other crime, carries the death penalty.

Now I know it says compasser ou ymaginer, but though the law is a ass, a idiot, it's not a complete one. We have judges, we have human rights acts, we have precedents, we have common sense and the reasonable citizen given due weight: you cannot, cannot be prosecuted for "imagining" the death of the King or Queen. The word ymaginer would of necessity be construed as definitely plotting.

It has been amended numerous times, like any other act centuries old. Another wartime act was the Treachery Act 1940. The difference between treason and treachery is that treason requires betrayal of lawful allegiance, whereas treachery can be applied to enemy combatants doing particularly treacherous things, i.e. (presumably) those against the "laws of war".

The allegiance issue was tested in Britain's last capital trial for treason, that of Lord Haw Haw (real name William Joyce). He had broadcast treacherously on behalf of the Nazis. In his defence after the War he claimed to be a Free-State Irishman with American citizenship: true enough, but he had travelled to Nazi Germany under a British passport, availing himself of the King's protection. The traitor Lord Haw Haw was hanged under the Act in 1946.

Treason was only one of many capital offences in the cruel days of mass executions, peaking after 1800. There were almost three hundred capital offences in the early part of that century, including being in the company of gypsies for one month, and "strong evidence of malice" in children aged 7-14 years of age. This insanity, called "the Bloody Code", abated as juries refused to convict, and humanity gradually came to our laws, until by 1861 the number of capital offences was reduced to only four.

These four are the stuff of the misinformation and urban legends of what is still supposed to be punishable with death. The four remaining capital crimes were murder, treason, arson in royal dockyards, and piracy with violence.

The death penalty for murder was abolished under the Murder (Abolition of the Death Penalty) Act 1965, and made permanent in 1969 in Great Britain and 1973 in Northern Ireland. That left the remaining three; and treason could be prosecuted under both civilian and military laws.

The last military execution for treason was in 1942. Military law covered five offences: Serious Misconduct in Action; Communicating with the Enemy; Aiding the Enemy or Furnishing Supplies; Obstructing Operations or Giving False Air Signals; Mutiny, Incitement to Mutiny or Failure to Suppress a Mutiny. The military death penalty for these was abolished in October 1998 in an amendment to the Human Rights Act 1998 and the civilian death penalty for such things as piracy, arson, and offences against the Royal Family was abolished by the Crime and Disorder Act 1998. I don't know when the last execution for any of those last was carried out.

Among other treason acts of more recent date than 1351 were the Treason Felony Act 1848, which made republicanism treasonable. I'm not aware that this was ever pursued: even in 1848 (the Chartist crisis and the Year of Revolutions) it was an immensely reasonable public position, and in 2003 a judgement in a case brought by The Guardian confirmed that prosecution for espousing a republic was absolutely contrary to the Human Rights Act 1998, and that part of the 1848 Act could not apply.

Original text and translation: hwww.tiersma.com/STATS/TREASON.HTM
Lord Haw Haw trial: www.stephen-stratford.co.uk/spying.htm
Taking up arms for Taleban: www.parliament.the-stationery-office.co.uk/pa/ld200102/ldhansrd/vo011101/text/11101-01.htm
Abolition of death penalty: www.amnesty.org.uk/action/camp/dp/intro/uk.html

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