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See also:TREASON (Fr. trahison, See also:Lat. traditio)
, a See also:general See also:term for the See also:crime of attacking the safety of a See also:sovereign See also:state or its See also:head
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The See also:law which punishes See also:treason is a necessary consequence of the See also:idea of a state, and is essential to the existence of the state
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Most, if not all, nations have accordingly, at an See also:early See also:period of their See also:history, made See also:provision by legislation or otherwise for its See also:punishment
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The principle is universal, though its
tt~~-
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1 Electuary (See also:Lat. electuarium), is probably derived from Gr
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MX&KT W, used in the same sense, from ixXet,ecr, to lick out
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application has led to See also:differences of See also:opinion
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What would have been a See also:capital crime at See also:Rome under Tiberius may be no offence at all in See also:England
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It is to the See also:advantage of the. state and the See also:citizen that what is treason and what is not should be clearly defined, so that as little as possible discretionary See also:power, See also:apt to be strained in times of popular excitement, should be See also:left to the judicial or executive authorities
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The importance of this was seen by See also:Montesquieu
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Vagueness in the crime of treason, says he, is sufficient to make the See also:government degenerate into despotism.2 At the same See also:time, it may be observed that despotic governments have not always left the crime undefined
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The See also:object of See also: In both See also:ancient and See also:modern history treason has generally been a crime prosecuted by exceptional See also:procedure, and visited with afflictive as distinguished from See also:simple punishments (to use the terminology of See also:Bentham) . See also:Roman Law.—In Roman law the offences originally falling under the head of treason were almost exclusively those committed in military service, such as in England would be dealt with under the See also:Army See also:Act . The very name perduellio, the name of the crime in the older Roman law, is a See also:proof of this . Perduelles were, strictly, public enemies who See also:bore arms against the state; and traitors were regarded as having no more rights than public enemies . The Twelve Tables made it punishable with See also:death to communicate with the enemy or to betray a citizen to the enemy . Other kinds of perduellio were punished by See also:interdiction of See also:fire and See also:water . The crime was tried before a See also:special tribunal, the duumviri perduellionis, perhaps the earliest permanent criminal See also:court existing at Rome . At a later period the name of perduellio gave See also:place to that of laesa majestas, deminuta or minuta majestas, or simply majestas . The lex Julia majestatis, to which the date of 48 B.C. has been conjecturally assigned, continued to be the basis of the Roman law of treason until the latest period of the See also:empire, and is still, with the law of perduellio, the basis of the law of See also:British See also:South See also:Africa as to treason . The See also:original See also:text of the law appears to have still dealt with what were chiefly military offences, such as sending letters or messages to the enemy, giving up a See also:standard or fortress, and See also:desertion . With the empire the law of majestas received an enormous development, mainly in the reign of Tiberius, and led to the rise of a class of professional informers, called delatores.3 The conception of the See also:emperor as divine' had much to do with this . It became a See also:maxim that treason was next to See also:sacrilege 5 in gravity . The law as it existed in the time of Justinian is contained chiefly in the titles of the See also:Digest 6 and Coder " Ad legem Juliam majestatis." The definition given in the Digest (taken from See also:Ulpian) is this: " majestatis crimes illud est quod adversus populum Romanum vel adversus securitatem ejus committitur." Of treasons other than military offences, some of the more noticeable were the raising of an army or levying See also:war without the command of the emperor, the questioning of the emperor's choice of a successor, the See also:murder of (or See also:conspiracy to murder) hostages or certain magistrates of high See also:rank, the occupation of public places, the See also:meeting within the See also:city of persons hostile to the state with weapons or stones, incitement to See also:sedition or See also:administration of unlawful oaths, See also:release of prisoners justly confined, falsification of public documents, and failure of a provincial See also:governor to quit his See also:province at the expiration of his See also:office or to deliver his army to his successor . The intention (voluntas) was punishable as much as an overt act (effectus).6 The reported opinions, as to what was not treason 2 Esprit See also:des lois, bk. xii. c . 7 . s See See also:Merivale, History of the See also:Romans under the Empire, iii . 467, V . 141 . " Principes instar deorum ease " are the words of See also:Tacitus . ' This crime was called laesa majestas divina in later law . 6 xlviii . 4 . ix . 8 .
s A similar provision was contained in the See also:Golden See also:Bull of See also:
English Law.—The law of England as to treason corresponds to a considerable extent with Roman law; in fact, treason is treated by See also:Blackstone as the See also:equivalent of the crimen laesae majestatis
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The history of the crime in the two systems agrees in this that in both the law was settled by legislation at a comparatively early period, and subsequently See also:developed by judicial construction
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In both, too, there were exceptional features distinguishing this crime from other offences
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For instance, at See also:common law treason was not bailable (except by the See also: The Leges Henrici Primi "' put anyone slaying the king's messenger in the king's See also:mercy . The crime was shortly defined by See also:Glanvill, 6 and at a greater length by See also:Britton, 7 and by See also:Bracton,3 who follows Roman law closely . The offence of high treason was not precisely defined by the common law (I See also:Hale, 76), and until the passing of the Treason Act 1351 depended much on the opinions of the king and his See also:judges . That statute appears to be the See also:answer to a See also:petition of the See also:Commons in 1348 (I Hale, 87), praying for a definition of the offence of accroaching royal power, a charge on which several persons—notably See also:Gaveston and the Despensers—had suffered . The offences made high treason by the statute which still remain an overt act has always been necessary . The difficulty of proving a mere intention is obvious . In See also:French and See also:German law the overt act (Attentat or Unternehmen) is as indispensable as in English . 1 To See also:harbour a fugitive enemy was punishable only by See also:deportation, Dig., xlviii . 19, 40 . 2 The position of treason as a special crime prosecuted by special procedure is one common to most legal systems at some period of their existence . For instance, in See also:Germany, by a constitution of Henry VII. the procedure was to be See also:summary, sine strepitu et figure judicii . ' c . 4 . 4 v . 30 . 6 lxxix . 2 . 9 xiv . 7 CC . 20, 21, 22 . 8 de See also:Corona I18b.are these: (1) to See also:compass or imaging the death of the king,le the See also:queen or their eldest son and See also:heir; (2) to violate the king's See also:companion, or his eldest daughter unmarried, or the wife of his eldest son and heir; (3) to See also:levy war against the king in his See also:realm, or be adherent to the king's enemies in his realm, giving them aid and comfort in the realm or elsewhere (perduellio); (4) to slay the See also:chancellor, treasurer, or the king's justices of the one bench or the other, justices in See also:eyre, or justices of See also:assize, and all other justices assigned to hear and determine, being in their places doing their offices . In all cases of treason not specified in the statute the justices before whom the case came are to tarry without going to See also:judgment until the cause has been showed and declared before the king and his See also:parliament whether it ought to be judged treason or felony . The statute, so far as it defines the offence of high treason, is still law . The statute also treated as high treason See also:forgery of the great or privy See also:seal, See also:counterfeiting the king's See also:coin and importing counterfeits thereof .
These offences are now felonies
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It also defined See also:petty treason (now merged in wilful murder) as the slaying of a See also:master by his servant, a husband by his wife, or a See also:prelate by a See also:man See also:secular or religious owing him allegiance
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The act of 1351 protects only the king's life, and its insufficiency was supplemented in periods of danger by legislation, often of a temporary nature
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Under See also:Richard II. many new offences were made treason," but the acts creating these new treasons were repealed at the earliest opportunity by the parliaments of his successors
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The reign most prolific in statutory additions to the law of treason was that of Henry VIII
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Legislation in this reign was little more than a See also:register of the fluctuating opinions of the monarch
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Thus, by one act of 1534 it was treason not to believe See also:Mary illegitimate and See also: Besides the acts of 1351 and 1553 the following statutes are still in force with respect to the substantive law of treason . By an obscurely penned statute of 1495 (II See also:Hen . VII. c . 1. s . I) persons serving the king for the time being in war are not to be convicted or attainted of treason; see Steph., Dig . Cr . Law (6th ed.), See also:article 56 . This statute has been held not to apply in British South Africa . By an act of 1571 (13 Eliz. c . 2) as a counterblast to papal attacks on the right of Elizabeth to the English See also:crown, it was declared that persons using in England papal bulls offering See also:absolution and reconciliation to persons forsaking their due obedience to the English crown should be punishable as traitors . The penalties were abolished in 1846, but the acts against which the statute was aimed were declared to be still unlawful (see Steph., Dig . Cr . Law, 6th ed., p . 45n.) . By an act of 1702 (I See also:Anne st . 2. c . 21 s . 3) it is treason to endeavour to hinder the next successor to the crown from succeeding, and by the See also:Succession to the Crown Act 1707 it is treason maliciously, advisedly and directly by See also:writing or See also:printing to maintain and affirm that any See also:person has a right to the crown otherwise than according to the Acts of See also:Settlement and See also:Union, or that the crown and parliament cannot pass statutes for the See also:limitation of the succession to the crown . By an act of 1796, made perpetual in 1817, the definition of treason is extended so as to include plots within or without Great See also:Britain to cause the death or destruction, or any bodily harm tending to the death, destruction, See also:maiming, or wounding, imprisonment or See also:restraint of the king, if such plots are expressed by See also:publishing any printing or writing, or by any overt act or See also:deed . Since that date no new forms of treason have been created . There are many in-stances of offences temporarily made treason at different times . A 9 These words, according to Lucien (Law Tracts, See also:note ad fin.), mean to See also:attempt or contrive . a This by act of 1553 includes a queen regnant . n One See also:reason for making offences treason rather than felony was no doubt to give the Crown rather than the See also:lord of the See also:fee the right to the real See also:estate of the criminal on See also:forfeiture .
Had the offences been felony the king would have had only his year, See also:day and See also:waste on the estate escheating to the lord, as was the case in treason before the Statute of Treasons
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few of the more interesting may be briefly noticed
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It was treason to attempt to See also:appeal or annul judgments made by parliament against certain traitors (1398) ; to break a truce or safe-conduct (1414-1450) ; to hold castles, fortresses or munitions of war against the king (1552); to adhere to the See also:United Provinces (1665); to return without See also:licence if an adherent of the Pretender (1696) ; to correspond with the Pretender (1701); and to compass or imagine the death of the See also:prince See also:regent (1817)
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In addition to these, many acts of See also:attainder were passed at different times
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One of the most severe was that against See also:Catherine See also:Howard (1541), which went as far as to make it treasonable for any queen to conceal her ante-nuptial incontinence
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Other acts were those against See also:Archbishop See also:Scrope, See also:Owen See also:Glendower, See also:Jack See also:Cade, Lord See also:Seymour, See also:Sir See also:
In that year See also:hanging was substituted for burning in the case of See also:female traitors
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In 1814 the part of the sentence See also:relating to hanging and to disembowelling was altered to hanging until death supervened
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See also:Drawing and beheading and quartering after hanging were abolished in 1870
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There is no legislation authorizing the execution of traitors within the walls of a See also:prison as in the case of murder (see CAPITAL PUNISHMENT)
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The act of 1814 in the case of men enables the Crown, by See also:warrant under the sign See also:manual, countersigned by a secretary of state, to See also:change the sentence to beheading
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Attainder and forfeiture for treason are abolished by the Forfeitures Act 187o, except where the offender has been outlawed.' The maximum See also:penalty for a felony under the act of 1848 is penal See also:servitude for life
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In every See also:pardon of treason the offence is to be particularly specified therein (see PARDON)
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Trials for treason in Great Britain and See also:Ireland were at one time frequent and occupy a large part of the numerous volumes of the State Trials
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Some of the more interesting may be mentioned
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Before the Statute of Treasons were those of Gaveston and the Despensers in the reign of See also:Edward II. on charges of accroaching the royal power
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After the statute were those (some before the peers by trial or See also:impeachment, most before the ordinary criminal courts) of See also:Empson and See also:Dudley, See also:Fisher, More, the See also:earl of See also:Surrey, the See also:duke of See also:Somerset, Anne See also:Boleyn, See also:Lady Jane See also:Grey, Sir See also:
Occasionally the result of a trial was confirmed by statute
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In some of these trials, as is well known, the law was considerably strained in See also:order to insure a conviction
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Since the Revolution there have been the cases of those who took part in the risings of 1715 and 1745, Lord See also:George See also:Gordon in 178o, Thomas See also:Hardy and See also:Horne See also:Tooke in 1794, the See also:Cato See also:Street conspirators in 182o, Thomas See also:Frost in I84o, See also: |