The Tudor Law of Treason (Routledge Revivals)

An Introduction

John Bellamy

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134672165
• Edition: 1
• Topic: History
• Subtopic: British History
• Index: History

This title, first published in 1979, was ground-breaking in its exploration of the understudied area of the Tudor law of treason. Bellamy first examines the scope of that law, noting the inheritance from the Middle Ages, the effectiveness of the new statutes and interpretation of the law by the judiciary. Mining the archives for official, legal and literary accounts, the following parts consider how the government came to hear of traitors, the use of evidence and witnesses in trials and finally the fate of the traitor at the gallows and beyond. This is a full, useful and interesting title, which will be of great value to students researching Tudor and late medieval statute law, the Tudor concept of treason and the mores of Tudor society.

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The Scope of Treason: 1

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When Henry VII ascended the English throne, the crime of high treason rested largely for its definition on the statute of 1352, 25 Edw. III st. 5 c. 2. There it was clearly separated from petty treason, which was the slaying of a master by his servant, husband by his wife or prelate by a lesser cleric. High treason, although the adjective high did not appear regularly before the end of the fourteenth century, was to include only offences against the king's person and his regality. These were listed as: to compass or imagine the death of the king, his queen or the royal heir; to violate the king's consort, his eldest daughter or the wife of his eldest son; to levy war against the king in his realm or adhere to the king's enemies and be provably attaint of it by men of the offender's own condition; to counterfeit the great or privy seal or the king's coin, to introduce counterfeit money into England knowing it to be false; also to kill the chancellor, treasurer, or a justice of either bench, of eyre, of assize or of oyer and terminer while executing his office. Why the statute took the shape it did is to be discovered in the way treason had been defined in previous cases under the common law and also in the course of mid-fourteenth-century English politics. In enunciating the definition of 1352, Edward III was prompted chiefly by demand in recent parliaments that he should declare exactly what treason was, since royal justices had of late been holding as such crimes which had never been so interpreted in the past. These justices, and through them juries, so it seems, had been over zealous in their interpretations, calling felonies treasons and afforcing indictments by talk of accroachment of the royal power. Either they or King Edward may have been affected by new knowledge of continental law, but whatever the inspiration the purpose was clear enough. They hoped by extending the category of treason, and thereby inflicting heavier and more certain punishment, to suppress local lawlessness; no doubt they also hoped to replenish their master's coffers by the forfeitures incurred. Another reason, though perhaps of less import, for the new act may have been supplication by the magnates that Edward should annul the convictions against a small group of men who had been condemned for treason over twenty years before. There is however no indication that the baronage brought any strong pressure to bear.

In parliament the act was passed subsequent to a request by the commons simply for remedial legislation: no detail was given as to what the new law should say. There was no suggestion of a political confrontation between Edward and a bitter baronage, and for this reason the 1352 act of treason was more likely to be long-lasting, since Edward had no humiliation to revenge. The new law when passed gave a decidedly narrow interpretation to treason. Seriously diminished were the king's chances of obtaining forfeitures, and on the face of it royal power suffered a decline. Perhaps the king and his advisers accepted the fact that the nebulous periphery of treason often used to their advantage in the past was an unavoidable casualty in an age of increasing legal definition and, viewed politically, at a point when popular support was very necessary for the war with France. Whatever his feelings; Edward himself made no subsequent effort to restore the royal position and this, together with the lack of internal dissension until the last years of his reign, seems to have allowed the 1352 statute to become hallowed by time.

There is no doubt that at heart Edward III's treason act was founded on the crimes which were customarily held as treason under the common law. True, kings had not been absolutely consistent in what hitherto they had called treason but thirteenth- and early-fourteenth-century precedents can be found for nearly every category of traitorous offence which was included in the act. This close correlation may have been the reason why lawyers of the later fourteenth and the fifteenth centuries did not refer like their Tudor counterparts to ‘common law’ treasons, although it was accepted that unless a statute contravened the common law that law remained standing. For them there was no need to look for treason categories beyond the 1352 act. (1)

The most important development in the interpretation of the law of treason between 1352 and 1485 concerned the clause in the Edwardian act about imagining and compassing the king's death. Apart from those based on the offence of levying war against the king, a fairly frequent offence in the political upheavals from Richard II's reign onward, indictments concerned with ‘imagining’ were dominant. The reason for this was the discovery by kings and their judges that the category could be extended to embrace a wide variety of offences. Words and writings which commented on the king and his behaviour in what was regarded as a malicious manner were often the basis of these indictments. If the words did not suggest a direct intent to bring about the king's demise then they were held to do so indirectly and the accused found guilty of treason just the same. Commenting on some words from a sermon with approval led to one accusation of treason, repeating gossip, crying out in the street damaging comments about the king's personal characteristics and using the magic arts to make predictions about his future, led to others. This wide interpretation of the treason law was being justified by the king's lawyers in the second half of the fifteenth century on the grounds that these deeds were intended to destroy the cordial love which his people had for the king and thereby shorten his life by sadness.

The crown seems to have used this wide interpretation of ‘imagining and compassing the king's death’ which has often gone under the name ‘constructive treason’ in preference to a procedural device which the 1352 statute thoughtfully provided. This was that when ‘doubtful’ cases of treason arose the justices were to delay giving judgment until the issue was brought before the king in parliament and it was declared whether it should be held treason or felony. It was the judges and the king who decided if in fact the case was a doubtful one. If the situation was novel but they had no doubts about what to do then they ‘constructed’, and they do not seem to have been brought to task for their interpretations. Parliamentary declaration of treason, despite its unpopularity with the king, may have survived into the fifteenth century, but only as an element in the act of attainder. Such acts were intended to affirm and supplement convictions made outside parliament, to serve sometimes as a form of exaction and outlawry and to set penalties which were beyond the power of the common law courts to inflict. In the matter of the definition of treason for all their extra-legal appearance they played only a small role, nearly always following the act of 1352.

The Edwardian statute was not the only treason act of the later Middle Ages; there were others in the fifteenth century although much less important. A statute of 1414, which owed much to contemporary continental conventions, decreed that those who ignored truces the king had made with his enemies and the safe conducts he had granted should be judged for high treason. (2) An act of 1416, in dealing with the clipping, washing and filing of coins, consciously supplemented the 1352 statute, as did the statute made in the parliament of 1423–4 concerning escape from gaol by those committed on suspicion of high treason. (3) Other legislation extended treason to include extortion by threat of arson (1429–30), the seizure of goods in three English border counties by Welshmen (1442) and compassing the death of Richard, duke of York (1460). (4) In addition to new laws there were in the fifteenth century a number of occasions when the penalties for treason were awarded by parliament in suspension, so to speak, so as to force particular miscreants to appear before a court. (5) Here again we have the phenomenon of certain crimes being classified as treason so as better to maintain public order. Since parliament legislated these devices they cannot be viewed as illegal, although the departure from general principle in order to benefit a single suppliant must be decried. Yet speaking in general terms it seems that even when the quality of government was poor, as for example in the middle of the fifteenth century, there were very few occasions when a charge of treason was legally unwarranted. The English kings of the period, with perhaps one exception, seem to have been happy to abide by the law, feeling no doubt that the use of judicial construction made it quite favourable to their interests.

In contrast to the later medieval period the Tudor era is remarkable in the history of treason for the large amount of legislation which concerned itself with that subject. Between 1485 and 1603, according to one calculation, there were no fewer than sixty-eight treason statutes enacted, though there had been less than ten in the period 1352–1485. (6) This proliferation is explained by the fact that many Tudor acts were the by-product of royal concern over the succession to the crown and the king's ecclesiastical supremacy, problems previous kings did not face in the same form, and also by the reluctance of the Tudor monarchs to put their trust in judicial construction based on existing statutes. The large number of acts should not be taken automatically as an indication of the king's success in expanding the scope of the treason laws. The history of treason in the fifteenth century demonstrates that how the law was interpreted was sometimes more important than the bald statute, and indeed the later Middle Ages as a whole suggest that to define treason more exactly was in general to the king's disadvantage, serving to reduce his ancient prerogative powers. This issue of how wide the scope of treason extended is the central one in this chapter, but it cannot be studied simply through examination of the statutes alone, important as they are. Indictments and how they were drawn tell us much, and so do the comments about treason made formally or informally by judges, justices, ministers and even the monarch himself.

Together with the width of the treason law must be considered the general fairness of that law. Did the Tudors adhere to the principles which had guided past legislators and were the rules made in harmony with the tenor of the English common law? Most of the comments of those historians who have dealt with the matter directly have been unfavourable. Tanner said of Henry VIII's treason legislation that it ‘abandons any logical principle and converts treason into a crime which has no character except heinousness’. (7) Pickthorn drew attention to the device utilized by the king and his ministers in 1531 ‘of denouncing and punishing as high treason whatever was especially disagreeable to the government’ and reflected it was ‘an expedient several times repeated in the course of the reign’. (8) Rezneck, concurring with Tanner, referred to the ‘amazingly novel character’ of the addition to the treason law by Henry VIII and regarded the general trend of Elizabethan legislation on the subject as being towards increased severity ‘even exceeding Henry VIII's harshness’. A.F. Pollard remarked on the ‘ferociousness’ of Henry VIII's treason laws and thought one promulgated in Queen Mary's reign (1 & 2 Ph. & M. c. 9) even worse. (9) The only categorical denial of these opinions has come from G.R. Elton, who has sought to refute the argument that the Tudors ‘fudged the whole meaning of treason by turning the supreme political offence into an emotional term for any heinous crime’ by proposing instead that ‘typically Tudor legislation extended treason to cover new aspects of the fundamental offence against king and realm’. (10) Lawyers have been less willing to damn than historians, although they have been loth to defend. Holdsworth, quite remarkably, seems to have avoided any comment at all. Stephen, clearly on the defensive, wrote that he thought the impression which Henry VIII's treason laws ‘have created of tyranny is somewhat exaggerated though it is not unnatural’. He argued that they were a necessary outcome of the war between Henry and the pope and that they were not intended to last for an indefinite time or to apply to a normal state of society: to believe otherwise ‘is to misunderstand them pedantically’. Less restrained was the earlier legal historian Reeves, who was prompted by the Henrician laws to write that this repressive legislation ordained for law ‘the strangest inventions that ever were thought worthy to become the objects of penal jurisdiction’. (11)

Alongside the generally derogatory remarks of historians and lawyers of a later period may be cited the comments of contemporaries. Here we find some occasional and scattered complaint but no loud or general outcry about the scope of the treason laws. One grievance was the accounting as treason of seditious words used in everyday speech. Bishop Fisher's brother Robert is reputed to have said in February 1535 that ‘speaking is made high treason which was never heard of before’. (12) In 1540, at the time of Thomas Cromwell's fall, there was a complaint that by sanguinary laws he had made into treason inadvertent words spoken in good intent. (13) Yet in fact among the large number of seditious speeches which came to the government's attention between 1532 and 1540, the time when the offence was probably most common, very few indeed criticized the law defining treason even indirectly. (14) Later in the century there were one or two occasions when protest was made in parliament against the extension of the scope of the treason law. When in 1571 the commons were discussing a proposed new treason act one member, Snagg, showed his opposition by arguing that he thought the statute of 1352 was itself sufficient. In the parliamentary session of 1585 Dr Parry was sequestered for saying that the treason bill against Jesuits, seminary priests and ‘such like disobedient subjects’ was ‘full of blood, danger, despair and terror’ to the people of the realm and further that it was ‘full of confiscations’. (15) One obvious target of criticism, at least from the wealthier classes, were the rules about forfeiture yet surprisingly the only contemporary complaint seems to have come from a governmental source. Reginald Pole in Starkey's ‘Dialogue between Reginald Pole and Thomas Lupset’ is made to say that the law was ‘overstrait’ because the innocent heir and the stock of the convicted traitor could not inherit his lands and creditors were deprived thereby of their chance of payment. (16) To these few criticisms about the content of the treason statutes should perhaps be added complaints concerning how the crown interpreted them. Robert. Fisher is supposed to have said that the government was going to expound the treason act of 1534 according to its pleasure, regardless of the inclusion of the word ‘maliciously’. (17) In 1554 Sir Nicholas Throckmorton, when on trial for his life, saw fit to criticize the way judges were able to construe the laws of treason to the king's advantage. (18) The Yorkshire insurgents of 1536, when referring to the malpractices of two of Cromwell's minions, claimed that ‘what so ever thay will have doyne must be lawfull and who contrarys theym shall be accusyd off tresun’. (19)

This criticism of the scope of treason stemmed largely from individuals who were aggrieved at one particular proviso of the treason acts. A general and substantial complaint about the scope of treason only showed itself on Henry VIII's death, when there was a widespread though temporary desire to make the law more narrow. Even then there were outspoken critics of the change. The return to the statute of 1352 was called the worst deed done in that generation and the western rebels of 1549 sought a return to ‘the statute that made words treason’. (20) The Tudor monarchs benefited greatly from the fact that the opposition to their policies, political or religious, rarely came from the same quarter for more than a few years at a time. There was no constant source of opposition until well on in Elizabeth's reign. Thus there was no contrary philosophy about the scope of treason as for example the baronage of the early fourteenth century had. Even the transmarine English catholics of the 1580s and 1590s, who had plenty of time to philosophize, showed neither the ability nor the inclination to expose the legal weaknesses in the laws deciding the scope of treason. The Tudor kings and queens had it virtually all their own way.

Any study of the scope of the Tudor treason laws is best divided around 1530, four years before the most important of the relevant statutes was enacted. Until that year the pre-eminence of the act of 1352 was unchallenged, yet the twenty-four years of Henry VII's reign and the first twenty-five of his son's were by no means devoid of events significant to the law of treason. There was legislation on treason in 1487–8 and 1495, important declarations by the judges in 1485, 1517 and 1525, new trends in the formulation of indictments and two remarkable constructions of treason by Henry VIII and his advisers. In Henry VII's second parliament it was enacted that if any servant in the royal household should compass to destroy or murder the king or a lord of the realm or other counsellors of the king or the steward, treasurer or comptroller of the household, it was to be held felony. Hitherto conspiring, as distinct from achieving, the death of anyone other than the king was not a crime at all. To imagine the king's death, on the other hand, was high treason. The aspect of the act which attracts our attention most is its actual diminution of the scope of treason in one area. The principle, we must admit, was reasonable enough, for the 1352 act stated that any servant who imagined his master's death was to be held guilty of petty treason, and for that crime the penalty was the same as for felony. Very likely the reason for the act was no delight in legistic principles but lay, as one usually discovers when changes occurred in definitions of crimes, in actual offences committed or attempted in the recent past. In this case it was apparently the behaviour of one John Spynell, a yeoman of the crown, and some eighty disorderly followers, who on 15 December 1487, while parliament was sitting, assembled together for the purpose of murdering several of the king's chief officers and members of his council. (21)

The so-called ‘de facto’ act of 1495 (11 Hen. VII c. 1) should also be read with recent circumstances very much in mind. Late in 1494 or early in 1495 it was revealed by Sir Robert Clifford, who was either a defector from Warbeck's cause or a royal spy, that the chamberlain of the royal household, Sir William Stanley, brother of the earl of Derby who had played such a vital role at Bosworth, was a traitor. According to Polydore Vergil, Stanley's treason amounted to nothing more than saying that if Warbeck was indeed the son of Edward IV as claimed he would not fight against him. (22) Stanley and other suspects, who included Lord Fitzwalter, Sir Simon Mountford, several ecclesiastics and men of lower rank, were arrested and put on trial. Stanley was indicted of imagining the king's death through an intent to levy war against him, and through communication with Warbeck, and of adhering to the king's enemies. Clifford was similarly indicted but whereas Stanley was tried, convicted and later executed, Clifford failed to appear even to plead a pardon known to have been granted to him. (23)

That Henry was much disturbed by the revelations is obvious. Oyer and terminer commissions of great size were appointed to investigate...