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.

History of Capital Punishment

Hanging. The most popular method for the death penalty throughout English Legal History.

The legal history of capital punishment in the United Kingdom is an interesting one and ranges across many centuries from the extreme of having no crimes strictly punishable by death to a multitude and back to none. In early Norman times, the principles of the common law in relation to the punishment of crimes were very simple. If the crime was a misdemeanor (minor or petty offences) then the punishment was at the discretion of the justices of the court.

For felonies (serious offences) the criminal was put on the king’s mercy which usually involved the ordering of mutilation in the form of castration or blinding. This was seen as a mercy rather than imposing the ultimate punishment of death.

By the early 13th Century, a fixed penalty of death was imposed for almost all felonies. For treason, this was death by being hung, drawn and quartered and for other felonies, simply death by hanging. This fixed penalty was grossly inflexible and various methods were used to mitigate the sentence of death, until later reforms abolished it. These methods included Sanctuary (my post on which can be found here), Benefit of Clergy, Pardons and Jury Mitigation. Later blog posts will deal with the latter three topics.

This state of affairs continued for some time. The expertise of the legal profession was directed towards thinking of incredible ways to avoid the death penalty, rather than reform it. Still by 1688 there were 50 offences within statute law that carried a death sentence, this rose to 220 by the the late 18th Century. These offences were wide-ranging and even included ‘being in the company of gypsies for one month’. It is a testament to the above mentioned methods of avoidance that, between 1770 and 1830, 35,000 death sentences were given but only 7,000 people were executed.

The legal reformer Sir Samuel Romilly KC, also responsible for calling for the abolition of slavery, succeeded in having the death penalty abolished from a mere two offences, namely pick-pocketing and stealing from bleaching grounds.

A year after Sir Romilly’s death in 1818, a Parliamentary select committee looking at the issue of the death penalty led to several statutes that slowly, and in a piecemeal fashion, abolished the death penalty from many offences.

By the 1860s, there were only several offences that still attracted the death penalty. These were murder, treason, piracy, and arson in naval dockyards. This remained the same until 1957 when difficult cases arose as regards capital punishment for murder. It led to the introduction of the Homicide Act 1957 which suspended the practice and the Murder (Abolition of Death Penalty) Act 1965 which abolished it entirely. Death as a punishment for Arson in naval dockyards was repealed by the Criminal Damage Act 1971.

Although beheading was removed as a potential punishment for treason in 1973, hanging remained until 1998 when the Crime and Disorder Act 1998 abolished some of the last remnants of capital punishment in the UK, with the abolition of the punishment for treason and piracy.

The last remnant of the death penalty in the UK (the punishment existed within military jurisdiction during wartime) was abolished by the coming into force of the Human Rights Act 1998. Since 2004, the UK has been signed up to the 13th Protocol of the European Convention on Human Rights which prohibits the death penalty in any circumstances. It would be impossible for the UK to bring in laws to reinstate the death penalty unless they were to formally withdraw from the Convention.

The Privilege of Sanctuary

Westminster Abbey was an extremely popular Sanctuary.

In medieval England, a criminal could go to a church and claim protection from the law. The authorities and the processes of criminal justice could not reach him. This was based on the idea that no force could be used on the consecrated and holy ground of the churches.

This privilege, called sanctuary, could be taken up by any criminals, ranging from murderers, rapists and thieves to the simple debtor who owed a sum of money.

The common law of the time stated that the privilege of sanctuary could only be used for up to 40 days. However, there were in existence some large sanctuaries (such as Westminster Abbey) that could house hundreds of criminals and had the facilities for them to stay indefinitely. When the criminals attempted to continue their criminal activities from the Abbey, the practice of these large sanctuaries was heavily frowned upon by the authorities and the public.

A criminal taking sanctuary had to, within the time limit of 40 days, decide on one of two courses of action. He could either turn up at the court and declare he was ready for a trial or he could elect to leave the country forever. He would then be escorted safely to the nearest port and would journey to a new country.

Judges attempted on several occasions to stop the proliferation of sanctuaries by stating that no new ones could be made without the King’s consent. However, many were already in existence and continued their activities.

There was a significant case between 1516 and 1520 regarding a large sanctuary at St John’s Priory. This led to calls for reform and Henry VIII declared that the ancient kings and old popes never had the intention of letting the sanctuaries be used to such a gross extent.

Henry proceeded to abolish almost all sanctuaries and removed the possibility of using the privilege for almost all crimes. The practice did not breathe its last until a statute of 1624 which stated ‘no sanctuary or privilege of sanctuary to be hereafter admitted or allowed in any case’.

Age of Criminal Responsibility

The age of criminal responsibility is the age which if a child falls beneath it they cannot be held to have committed a crime and cannot be held responsible for their actions.

Before the 13th Century and the medieval times of England, it was a generally held custom that children under the age of 12 could not be convicted of crimes. The reasoning behind this is archaic. From 12 years old, a person was expected to be in frankpledge. This was a sharing of joint responsibility towards your relatives or to a Lord you had given your oath of service.

Being in frankpledge meant that if you committed wrongful actions and were summoned for judgment before your local hundred-court, but did not turn up, your relatives and lord could be fined on your behalf. By necessity this meant a person of 12 years of age had to be responsible for their actions.

In the 1300s, a child under 12 could be convicted of crimes if a judge held that they were able to tell right from wrong. This was a discretionary test but this level of mental capacity could be indicated by trying to evade the authorities, thus demonstrating your guilt.

The historical sources are unclear during the above centuries as to whether there was a lower age limit beneath which a child could definitely not be convicted. In the 17th Century, a lower age limit of 7 was agreed upon from the compilation of principles from archaic case law. Also, the upper limit was changed to 14, rather than 12. With any potentially criminal actions of a child under 14, it had to proven that they knew right from wrong.

This, broadly, remained the case until the significant legislation of the Children and Young Person’s Act 1933 which implemented an age of criminal responsibility of 8 years old. This was raised to 10 by the Children and Young Person’s Act 1963 and 10 remains the age of criminal responsibility in England today. An interesting modern case study and discussion on this issue can be found on this blog: EastLaw.

This age remains one of the lowest in the world, with countries such as Iran, Singapore, Sudan and Pakistan coming in below us by setting the age of criminal responsibility at 7. On the other end of the scale, many countries set the age between 12 and 14 and Sweden and Belgium at 15 and 16 respectively. It has been argued in numerous sources that we are out of step with modern opinion on this issue.

Indeed, the Committee of the Convention on the Rights of the Child 1989 recommends at the very least, a minimum age of 12. It is a point for which the Committee has consistently criticised England over the years.

A private members Bill is currently making its way through Parliament regarding the age of criminal responsibility, it had its first reading in January 2013. The Age of Criminal Responsibility Bill 2013 seeks to change the minimum age to 12. It is yet to be seen whether this will succeed, and become law, but it is an important, and interesting, one to keep an eye on.