award of battle in 1631 in the case of Lord Reay.[1] Four modes of
trying high treason still remain, viz. impeachment, trial of a peer
by his peers, trial by court-martial and trial by jury on indictment
before the High Court or a court of assize or a special commission.
The offence is not triable at quarter sessions.
At common law and under the Great Charter a peer, and, by an act of 1442, a peeress in right of her husband, are triable for treason before the House of Lords, or, when parliament is not sitting, in the court of the lord high steward. The last trial of a peer for treason was that of Lord Lovat in 1746–1747 (18 Howell’s St. Tr. 529).
In the reign of Edward IV., and perhaps later, treason was at times tried by martial law. The issue of commissions of martial law in time of peace was in 1628 declared illegal by the Petition of Right. But the prerogative of the Crown to deal by martial law with traitors in time of war or open rebellion within the realm or in a British possession still exists.[2]
Treasons committed within the admiralty jurisdiction or out of the realm were originally triable only by the admiral or the constable and marshal according to the civil law, but were made triable according to the courts of the common law by the Offences at Sea Act 1536, and by acts of 1543, 1552[3] and 1797. Provision is made for the trial in British possessions of treasons committed in the admiralty jurisdiction (Offences at Sea Act 1806).
Treasons committed within the realm are tried in the High Court, the central criminal court or another court of assize, or by special commission, except in the case of peers. In two acts dealing with Ireland (of 1809 and 1833) it was provided that nothing in the acts was to take away the undoubted prerogative of the Crown for the public safety to resort to the exercise of martial law against open enemies and traitors, while actual war or insurrection is raging (see Martial Law).[4] Treason by persons subject to military law is triable by court-martial under the Army Act (1881) ss. 4, 41 (a), where the offence cannot with reasonable convenience be tried in a civil court, and treason by persons subject to naval discipline by court-martial under the Naval Discipline Act (1866) s. 7. The procedure in such trials is regulated by the acts.
In certain cases of treason the procedure on the trial is the same as upon a charge of murder. Those cases, which are statutory exceptions from the statutory procedure prescribed for the trial of high treason and misprision thereof,Procedure. are: (a) Assassination or killing of the king, or any heir or successor of the king, or any direct attempt against his life or any direct attempt against his person whereby his life may be endangered or his person may suffer bodily harm (1800, 1814); (b) attempts to injure in any manner the person of the king (1842).
In all other cases of treason the procedure is regulated by acts of 1695, 1708 and 1825. A copy of the indictment must be delivered to the accused ten days at least before his arraignment, with a list of the witnesses for the prosecution (1708) and a list of the petty jury, except in the High Court, where the petty jury list is to be delivered ten days before the trial (1825).[5] The accused is entitled to be defended by counsel, and on application to the court may have two counsel assigned to him (1695), a right extended in 1746 to impeachments for treason. Witnesses for the defence have since 1702 been examinable upon oath. The accused may by the Criminal Evidence Act 1898 consent to be called as witness for the defence. It is doubtful whether the wife or husband of the accused is a compellable witness for the Crown (Archb. Crim. Pleading, 23rd ed., 398).
Prosecutions for treason must be begun within three years of the offence, except in cases of attempts to assassinate the king. The rules as to the indictment are stricter than in the case of felony and misdemeanour, much of the modern statutory power of amendment not extending to indictments for the graver offence. No evidence may be given of any overt act (voie de fait) not expressly stated in the indictment. The accused is entitled to peremptory challenge of thirty-five of the jurors summoned for the petty jury; but they need not now be freeholders. The accused can be convicted only on his own confession in open court, or by the oath of two witnesses either both to the same overt act charged, or one to one overt act and the other to another overt act of the same treason. If two or more treasons of different kinds are charged on the same indictment, one witness to prove one treason and another to prove another are not sufficient for a lawful conviction. Persons charged with treason are not admitted to bail except by order of a secretary of state or by the High Court (k.b.d.) or a judge thereof in vacation (Indictable Offences Act 1848, s. 23). Witnesses for the defence are examined on oath and their attendance is secured in the same way as that of witnesses for the Crown (1695, 170).
Misprision of treason consists in the concealment or keeping secret of any high treason. (a) This offence was in 1552 declared to be high treason (5 and 6 Edw. VI. c. 11, s. 8), but the former law was restored in 1553–1554 (1 Mary st. i. c. 1Misprision of Treason. s.1;1 &2 Ph. and Mar c. 10, s. 7). The definition is vague and the exact scope of the offence uncertain, but in strictness it does not include acts which in the case of felony would constitute an accessory after the fact. In the Queensland Code of 1899 (s. 38) every person is guilty of a crime who, knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to a justice or use other reasonable endeavours to prevent the commission of that crime. The procedure for the trial of misprision of treason is the same as in the case of high treason. The punishment is imprisonment for life and forfeiture of the offender’s goods and of the profits of his lands during his life. (Steph. Dig. Cr. Law, 6th ed., 121, 401.) The forfeitures are not abolished by the Forfeitures Act 1870. There is no case of prosecution of this offence recorded during the last century.
The necessity of prosecutions for treason has been greatly lessened by a series of statutes beginning in 1744 which provide for the punishment as felonies of certain acts which might fall within the definition of treason, e.g. Offences akin to Treason. piracies (1744, 18 Geo. II. c. 30), incitement to mutiny (1797), unlawful oaths, including oaths to commit treason (1797, 1812), and aiding the escape of prisoners of war (1812). By the Treason Act 1842 it is a high misdemeanour, punishable by penal servitude for seven years, wilfully to discharge, point, aim or present at the person of the king any gun or other arms, loaded or not, or to strike at or attempt to throw anything upon the king’s person, or to produce any firearms or other arms, or any explosive or dangerous matter, near his person, with intent to injure or alarm him or to commit a breach of the peace.[6] The offence is one of the few for which flogging may be awarded.
By the Treason Felony Act 1848, s. 1., it was made a felony within or without the United Kingdom to plot (a) to deprive or depose the king from the style, &c., of the imperial crown of the United Kingdom, (b) to levy war against the king in any part of the United Kingdom in order by force or constraint to change his measures or counsels or to put force or constraint on or to intimidate or overawe either or both houses of parliament, (c) to move or stir any foreigner with force to invade the United Kingdom or any of the king’s dominions. The plot to be within the act must be expressed by publishing in printing or writing or by an overt act or deed. “Open and advised speaking,” originally included as an alternative, was removed from the act in 1891. For other offences more or less nearly connected with treason reference may be made to the articles: Libel; Oaths; Petition; Riot; Sedition.
The act of 1848 does not abrogate the Treason Act of 1351, but merely provides an alternative remedy. But with the exception of the case of Lynch in 1903, all prosecutions in England for offences of a treasonable character since 1848 have been for the felony created by the act of 1848. The trials under the act, mostly in Ireland, are collected in vols. 6, 7 and 8 of the New Series of State Trials. The procedure in the case of all the offences just noticed is governed by the ordinary rules as to the trial of indictable offences, and the accused may be convicted even though the evidence proves acts constituting high treason.
Scotland.—Treason included treason proper, or crimes against the Crown or the state, such as rebellion, and crimes which, though not technically treasonable, were by legislation punished as treason. Scottish procedure was as a rule less favourable to the accused than English. In one matter, however, the opposite was the case. Advocates compellable to act on behalf of the accused were allowed him by 1587, c. 57, more than a century before the concession of a similar indulgence in England. At one time trial in absence and even after death was allowed, as in Roman law. In the case of Robert Leslie, in 1540, a summons after death was held by the estates to be competent, and the bones of the deceased were exhumed and presented at the bar of the court.[7] The act of 1542, c. 13 (rep. 1906), confined this revolting procedure to certain treasons of the more heinous kind.
- ↑ A case of treason out of the realm as to which alone the constable and marshal had jurisdiction (3 Howell’s St. Tr. 1).
- ↑ See case of D. F. Marais (1902, App. Cas. 109).
- ↑ There is no trace of recourse to the act of 1552. In 1903 Arthur Lynch was tried under the act of 1543 for high treason in South Africa, and Lord Maguire in 1645 for treason in Ireland (4 St. Tr. 653).
- ↑ The decisions of courts of martial law appear not to be reviewable by ordinary civil courts (re Marais, 1907, App. Cas. 109).
- ↑ In these respects persons accused of treason are in a better position than those accused of felony.
- ↑ This act was passed in consequence of a series of assaults on Queen Victoria. See 4 St. Tr. N. S. 1382; 7 St. Tr. N. S. 1130, and 8 St. Tr. N. S. 1.
- ↑ In the one instance in England—that of Cromwell, Ireton and Bradshaw—where the bodies of alleged traitors were exhumed after death they were not brought to the bar of a court as in Scotland.
