History of Treason

A traitor being hung, drawn and quartered.

Treason is perhaps the most infamous crime in English Legal History, due in part to the horrendous punishment that came with it but also due to its often strong political importance. The punishment that was often inflicted was the drawing of the traitor across rough ground by horse, he would then be hanged to within an inch of death, followed by being disembowelled, burnt, and beheaded. Your remaining carcass was cut into four pieces. The punishment of being hung, drawn and quartered has morbidly captured the public’s imagination for many centuries.

The core aspect of Treason was, and still is, betrayal. If you follow history back to the earliest Germanic tribes, a man who betrayed his kin to the enemy tribe was killed, often in a highly sacrificial manner. There are also significant Roman influences through Christianity, Judas was the ultimate betrayer, he betrayed his Lord Jesus Christ. The betrayal of your Lord, be that your King or your immediate Landlord was thus characterised as the worst of crimes.

Pre-13th Century Treason encompassed a wide range of activities. For example, these included fleeing from battle, plotting the death of your King or Lord, forging your Lord’s seal and committing adultery with the Lord’s wife. A particularly severe case is Peter of Wakefield being hanged for predicting John would no longer be King by next year.

Treason garnered significant political and economic importance due to the fact that a traitor’s land would be forfeited to the King, rather than to his Lord. If the criminal had just committed a normal felony, his lands would be forfeited to his immediate Landlord. The King and his justices thus wanted to expand the coverage of Treason, whereas the normal Lords wanted to keep it limited.

In the 13th Century and onward, a distinction began to emerge between High Treason and Petty Treason. Broadly, High Treason was an act of betrayal against your King, whereas Petty Treason was an act of betrayal against your immediate Lord. The latter crime came to encompass the murder by a wife of her husband or the murder of a Bishop. Indeed, the crime of Petty Treason disappeared in 1828 as it was downgraded to murder. It is interesting note that the benefit of clergy, which originally protected religious officials from prosecution outside of the non-religious courts, was held not to apply to High Treason.

The development of Treason was going off in several directions and was becoming unclear. Parliament thus enacted the Treason Act 1351 which laid out a definition of High Treason, which until then had been contained in case law. This statute’s main definition is still in force today, although thankfully the Crime and Disorder Act 1998 instituted a maximum punishment of life imprisonment, rather than death. For the history of capital punishment in the UK, please see my blog post here.

The Treason Act included such activities as planning the death of the King or Queen, or their eldest son. Moreover, it included committing adultery with the Queen or her eldest daughter. Among other things, it also included the killing of the Chancellor, Treasurer or Judges in the exercise of their duties.

William Joyce, in 1946, was the last person to be tried for and convicted of High Treason in the UK. He was said to have committed Treason due to his Nazi activities in the war and owed allegiance to the UK by having a UK passport, although he was not actually entitled to such a passport. His punishment was execution through hanging.

History of Trial by Jury

A typical modern day 12 person Jury.

Trial by Jury has traditionally been seen as the cornerstone of democracy and the rule of law in this country. This led Lord Devlin to dramatically comment in 1956 that trial by jury is “the lamp which shows that freedom lives”. However, this cornerstone has only been cemented for a few centuries. The origins of Trial by Jury, and more generally the swearing of 12 men to account for facts, goes back much further and even pre-dates the Norman conquest of 1066.

A jury is a body of people that are sworn to account for facts and to furnish courts of law with true and honest information. This idea was not unique to England and was used across ancient empires and within England and Normandy long before the Norman conquest.

At this early time, these bodies were called inquests. Its long history is attributable to the fact that without it, there was no efficient way to collect information about the number of livestock in an area or who owned which piece of land and where the boundary of that land was.

An inquest could also be held where 12 knights were summoned to provide information as to suspected criminals in their area. This process became known as the Grand Jury, as it was more general. The Petty Jury was a jury within a specific trial and will be discussed below.

The Petty Jury made its first proper appearance within 12th Century criminal cases. It became more prominent due to the fact that the Church disallowed the practice in 1215 of the Water and Fire ordeals as methods of proving guilt or innocence. Trial by Battle remained at this point but was already out of favour and the Jury was primed and ready to take over. My blog post on the ordeals can be found here.

Following on from this in the later 1200s and 1300s, Trial by Jury became significantly more common in all trials of wrongdoing in the courts. Furthermore, there was also discussion as to the nature of the Jury. Were the jurors to be treated like witnesses and individually examined or treated as a collective body? Case law in the 14th and 15th Century cemented the idea of the Jury as a collective institution.

To prevent improper influences and to preserve the honesty of their information, it quickly became very serious to communicate with a juror once they were sworn. The Jury was sequestered away from the influence of outside items or information. It was taken to the extreme and in a case of the late 1500s, 4 jurors were fined for possessing raisins and plums while sworn. It makes the modern day s.8 of the Contempt of Court Act 1981, which protects the confidentiality of Juries, seem mild.

In early Trial by Jury cases, if the jurors were not unanimous the judge could step in to decide one way or another. By 1367, case law strongly affirmed that unanimous verdicts were a necessity. This has eventually over the centuries gone back to majority verdicts being officially allowed, with the most recent law being contained in s.17 of the Juries Act 1974.

The state of affairs outlined above lasted for several centuries. There were a string of Juries Acts, prominent among them: 1825, 1850, 1949, and 1974, the latter being the most recent and currently in force edition. The general thrust of this string of legislation was to codify and make amendments to the law surrounding Juries which until that point was mainly contained within case law.

Early English Law – Æthelberht

A stained glass window of Æthelberht in All Souls College Chapel, Oxford.

A question I’ve often been asked is ‘What was the first English law?’ and it’s an interesting one but begs several other questions before it can be answered.

For example, the difficulties of shedding light on what came first, what can be considered ‘English’ and even what can be considered law. In answer to these questions, we look to the early historical records of the 7 principal kingdoms of the land (prominent among them Kent, Wessex, Mercia and Northumbria) that would not be unified into England until the early 10th Century. We also look to the first written codification of local customs.

The druids would have long been enforcing pagan customs in the Dark Ages but there was no need, or even capacity, to set these in writing. The Romans had written laws but during their occupation of Britannia these were mainly enforced upon Roman citizens, whilst the native Celts were allowed to continue their customs.

Æthelberht, King of Kent, in around 600 AD was the first to attempt a written code of local customs. It has been suggested that Æthelberht desired to write a code of law because he had been impressed by Christianity (and thus the Roman system of law) brought to him by the missionaries of Rome. Christianity had only been made legal, and the official religion, across the Roman Empire in 313 AD and all English Kings had been pagan until Æthelberht’s conversion.

With the help of his wise men to counsel him, Æthelberht devised a list of 90 sentences, called dooms (‘judgments’), to give a structure of monetary compensation for wrongs committed. An example follows:

“If one man strike another with the fist on the nose – three shillings”

This very early code became the grounding for Kentish law. Subsequent Kings of the 7th Century such as Hlothar, Eadric and Wihtred followed this example and added approximately 50 new dooms to the list of 90.