petit treason

Treason

[tree-zuhn]

In law, treason is the crime that covers some of the more serious acts of disloyalty to one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife (treason against the king was known as high treason and treason against a lesser superior was petit treason). A person who commits treason is known in law as a traitor. Such a person may also be colloquially termed a turncoat, Judas or quisling.

Oran's Dictionary of the Law (1983) defines treason as: "...[a]...citizen's actions to help a foreign government overthrow, make war against, or seriously injure the [parent nation]." In many nations, it is also often considered treason to attempt or conspire to overthrow the government, even if no foreign country is aided or involved by such an endeavour.

Outside legal spheres, the word "traitor" may also be used to describe a person who betrays (or is accused of betraying) their own political party, nation, family, friends, ethnic group, religion, social class, or other group to which they may belong. Often, such accusations are controversial and disputed, as the person may not identify with the group of which they are a member, or may otherwise disagree with the group leaders making the charge. See, for example, race traitor.

At times, the term "traitor" has been levelled as a political epithet, regardless of any verifiable treasonable action. In a civil war or insurrection, the winners may deem the losers to be traitors. Likewise the term "traitor" is used in heated political discussion typically as a slur against political dissidents, or against officials in power who are perceived as failing to act in the best interest of their constituents. In certain cases, as with the German Dolchstoßlegende, the accusation of treason towards a large group of people can be a unifying political message.

Murder is now generally considered the worst of crimes, but in the past, treason was thought of as worse. In English law high treason was punishable by being hanged, drawn and quartered (men) or burnt at the stake (women), the only crime which attracted those penalties (until the Treason Act 1814). The penalty was used by later monarchs against people who could reasonably be called traitors, although most modern jurists would call it excessive. Many of them would now just be considered dissidents.

In William Shakespeare's play King Lear (circa 1600), when the King learns that his daughter Regan has publicly dishonoured him, he says They could not, would not do 't; 'tis worse than murder: a conventional attitude at that time. In Dante Alighieri's Inferno, the lowest circles of Hell are reserved for traitors; Judas, who betrayed Jesus, suffers the worst torments of all. His treachery is in fact so notorious that his name has long been synonymous with traitor, a fate he shares with Benedict Arnold, Marcus Junius Brutus, and Vidkun Quisling.

Australia

The Australian Criminal Code defines treason as follows:

"A person commits an offence, called treason, if the person:

(a) causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister; or

(b) causes harm to the Sovereign, the Governor-General or the Prime Minister resulting in the death of the Sovereign, the Governor-General or the Prime Minister; or

(c) causes harm to the Sovereign, the Governor-General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor-General or the Prime Minister; or

(d) levies war, or does any act preparatory to levying war, against the Commonwealth; or

(e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:

(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

(ii) specified by Proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or

(f) engages in conduct that assists by any means whatever, with intent to assist:

(i) another country; or

(ii) an organisation;

that is engaged in armed hostilities against the Australian Defence Force; or

(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth; or

(h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act."

A person is not guilty of treason under paragraphs (e), (f) or (h) if their assistance or intended assistance is purely humanitarian in nature.

The penalty for treason is life imprisonment.

In New South Wales the offence of Treason is contained within the Crimes Act 1900 (NSW). This Act provides that treason shall constitute the overthrow of Her Majesty, Her Majesty's Government, the Parliament of the United Kingdom, or the Parliament of New South Wales. It also states that the Treason Act 1351 (25 Edward III, c. 2) is still in force in New South Wales. Therefore, this English Act forms part of the law of New South Wales.

Canada

Section 46 of the Criminal Code of Canada has two degrees of treason, called "high treason" and "treason." However both of these belong to the historical category of high treason, as opposed to petty treason which does not exist in Canadian law. Section 46 reads as follows:

"High treason
(1) Every one commits high treason who, in Canada,

(a) kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;

(b) levies war against Canada or does any act preparatory thereto; or

(c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.

Treason
(2) Every one commits treason who, in Canada,

(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

(d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or

(e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act."

It is also illegal for a Canadian citizen to do any of the above outside Canada.

The penalty for high treason is life imprisonment. The penalty for treason is imprisonment up to a maximum of life, or up to 14 years for conduct under subsection (2)(b) or (e) in peacetime.

France

Article 411-1 of the French Penal Code defines treason as follows:

"The acts defined by articles 411-2 to 411-11 constitute treason where they are committed by a French national or a soldier in the service of France, and constitute espionage where they are committed by any other person."

Article 411-2 prohibits "handing over troops belonging to the French armed forces, or all or part of the national territory, to a foreign power, to a foreign organisation or to an organisation under foreign control, or to their agents". It is punishable by life imprisonment and a fine of 750,000 euros. Generally parole is not available until 18 years of a life sentence have elapsed.

Articles 411-3 to 411-10 define various other crimes of collaboration with the enemy, sabotage, and the like. These are punishable with imprisonment for between thirty and seven years. Article 411-11 make it a crime to incite any of the above crimes.

Besides treason and espionage, there are many other crimes dealing with national security, insurrection, terrorism and so on. These are all to be found in Book IV of the Code.

Germany

Section 81 of the German criminal code states that:

"Whoever undertakes with force or through threat of force:

1. to undermine the continued existence of the Federal Republic of Germany; or

2. to change the constitutional order based on the Basic Law of the Federal Republic of Germany"

is guilty of treason. It is punishable with life imprisonment.

Section 82 defines treason against a German state.

Ireland

Article 39 of the Constitution of Ireland (adopted in 1937) states that "treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by the Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt."

The Treason Act 1939 gave legislative effect to Article 39, and provided for the imposition of the death penalty on persons convicted of committing treason within the state and on citizens convicted of committing treason against Ireland outside of the state. The Act also created the ancillary offences of encouraging, harbouring and comforting persons guilty of treason, and the offence of misprision of treason. No person has been charged under this Act.

The Criminal Justice Act 1990 removed the death penalty for treason, setting the punishment at life imprisonment, with parole in not less than forty years.

For other offences against national security, see the Offences against the State Acts 1939-1998.

Before 1937

Section 1(1) of the Treasonable Offences Act 1925 (enacted under the 1922 Constitution) defined treason as:

(a) levying war against Saorstát Éireann, or
(b) assisting any state or person engaged in levying war against Saorstát Éireann, or
(c) conspiring with any person (other than his or her wife or husband) or inciting any person to levy war against Saorstát Éireann, or
(d) attempting or taking part or being concerned in an attempt to overthrow by force of arms or other violent means the Government of Saorstát Éireann as established by or under the Constitution, or
(e) conspiring with any person (other than his or her wife or husband) or inciting any person to make or to take part or be concerned in any such attempt.

The maximum punishment was death. The Act also defined the offences of misprision of treason and of encouraging, harbouring, or comforting any person engaged in levying Saorstát Éireann or engaged, taking part, or concerned in any attempt to overthrow by force of arms or other violent means the Government of Saorstát Éireann as established by or under the Constitution of 1922.

The Treasonable Offences Act 1925 was the first comprehensive and permanent measure designed to deal with offences against the state. Section 3 reenacted portions of the Treason Felony Act 1848, while sections 4 and 5 dealt, respectively, with the usurpation of executive authority and assemblies pretending to parliamentary functions. Section 6 prohibited the formation of pretended military or police forces and section 7 proscribed unauthorised drilling.

Although Gardaí prosecuted a number of persons under section 1.1(d) in 1925 and 1926, the Minister for Justice, Kevin O'Higgins, believed that such serious charges were not 'desirable in the present conditions'. Rather more bluntly, in March 1930 Eoin O'Duffy, the Garda Commissioner, wrote that the prospect of charging IRA members with 'levying war against the State' or with usurping executive authority would make a 'laughing stock' of the Gardaí.

Before Irish independence, treason was governed under the laws of the United Kingdom. Many historical Irish nationalist insurgents now considered heroes or freedom fighters in contemporary Ireland were executed for treason against the British or English Crown.

New Zealand

New Zealand has treason laws that are stipulated under the Crimes Act 1961. Section 73 of the Crimes Act reads as follows:

"Every one owing allegiance to Her Majesty the Queen in right of New Zealand commits treason who, within or outside New Zealand,—

(a) Kills or wounds or does grievous bodily harm to Her Majesty the Queen, or imprisons or restrains her; or

(b) Levies war against New Zealand; or

(c) Assists an enemy at war with New Zealand, or any armed forces against which New Zealand forces are engaged in hostilities, whether or not a state of war exists between New Zealand and any other country; or

(d) Incites or assists any person with force to invade New Zealand; or

(e) Uses force for the purpose of overthrowing the Government of New Zealand; or

(f) Conspires with any person to do anything mentioned in this section."

The penalty is life imprisonment, except that the maximum for conspiracy is 14 years. Treason was the last capital crime in New Zealand law, with the death penalty not being revoked until 1989, years after it was abolished for murder.

Very few people have been prosecuted for the act of treason in New Zealand and none have been prosecuted in recent years.

Russia

Article 275 of the Criminal Code of Russia defines treason as "espionage, disclosure of state secrets, or any other assistance rendered to a foreign State, a foreign organization, or their representatives in hostile activities to the detriment of the external security of the Russian Federation, committed by a citizen of the Russian Federation." The sentence is imprisonment for 12 to 20 years. It is not a capital offence, even though murder and some aggravated forms of attempted murder are (although Russia currently has a moratorium on the death penalty).

Subsequent sections provide for further offences against state security, such as armed rebellion and forcible seizure of power.

Switzerland

According to article 265 of the Swiss Criminal Code, high treason consists of attempting to violently do one of the following: change the federal or a cantonal constitution, remove the constitutional authorities of the state or prevent them from exercising their office, or separate territory from the confederation or a canton. It is punishable by imprisonment for not less than one year.

United Kingdom

The British law of treason is entirely statutory and has been so since the Treason Act 1351 (25 Edw. 3 St. 5 c. 2). The Act is written in Norman French, but is more commonly cited in its English translation.

The Treason Act 1351 has since been amended several times, and currently provides for four categories of treasonable offences, namely:

  • "when a man doth compass or imagine the death of our lord the King, or of our lady his Queen or of their eldest son and heir";
  • "if a man do violate the King’s companion, or the King’s eldest daughter unmarried, or the wife of the King’s eldest son and heir";
  • "if a man do levy war against our lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere"; and
  • "if a man slea the chancellor, treasurer, or the King’s justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and determine, being in their places, doing their offices".

Another Act, the Treason Act 1702 (1 Anne stat. 2 c. 21), provides for a fifth category of treason, namely:

  • "if any person or persons ... shall endeavour to deprive or hinder any person who shall be the next in succession to the crown ... from succeeding after the decease of her Majesty (whom God long preserve) to the imperial crown of this realm and the dominions and territories thereunto belonging".

By virtue of the Treason Act 1708, the law of treason in Scotland is the same as the law in England, save that in Scotland the slaying of the Lords of Session and Lords of Justiciary and counterfeiting the Great Seal of Scotland remain treason under sections 11 and 12 of the Treason Act 1708 respectively. Treason is a reserved matter about which the Scottish Parliament is prohibited from legislating. Two acts of the former Parliament of Ireland passed in 1537 and 1542 create further treasons which apply in Northern Ireland.

The penalty for treason was changed from death to a maximum of imprisonment for life in 1998 under the Crime And Disorder Act. Before 1998, the death penalty was mandatory, subject to the royal prerogative of mercy. Since the abolition of the death penalty for murder in 1965 an execution for treason was unlikely to be carried out.

Treason laws were used against Irish insurgents before Irish independence. However, IRA and other republican guerrillas were not prosecuted or executed for treason for levying war against the British government during the Troubles. They, along with loyalist militants, were jailed for murder, violent crimes or terrorist offences.

William Joyce was the last person to be put to death for treason, in 1946. (On the following day Theodore Schurch was executed for treachery, a similar crime, and was the last man to be executed for a crime other than murder in the UK.)

As to who can commit treason, it depends on the ancient notion of allegiance. As such, all British nationals (but not other Commonwealth citizens) owe allegiance to the Queen in right of the United Kingdom wherever they may be, as do Commonwealth citizens and aliens present in the United Kingdom at the time of the treasonable act (except diplomats and foreign invading forces), those who hold a British passport however obtained, and aliens who - having lived in Britain and gone abroad again - have left behind family and belongings.

See also the Treason Felony Act 1848.

International influence

The Treason Act 1695 enacted, among other things, a rule that treason could be proved only in a trial by the evidence of two witnesses to the same offence. Nearly one hundred years later this rule was incorporated into the U.S. Constitution, which requires two witnesses to the same overt act. It also provided for a three year time limit on bringing prosecutions for treason (except for assassinating the king), another rule which has been imitated in some common law countries. The Treason Act 1661 made it treason to imprison, restrain or wound the king. Although this law was abolished in the United Kingdom in 1998, it still continues to apply in some Commonwealth countries.

United States

To avoid the abuses of the English law (including executions by Henry VIII of those who criticized his repeated marriages), treason was specifically defined in the United States Constitution, the only crime so defined. Article III Section 3 delineates treason as follows:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

However, Congress has, at times, passed statutes creating related offenses which undermine the government or the national security, such as sedition in the 1798 Alien and Sedition Acts, or espionage and sedition in the 1917 Espionage Act, which do not require the testimony of two witnesses and have a much broader definition than Article Three treason. For example, some well-known spies have been convicted of espionage rather than treason.

The Constitution does not itself create the offense; it only restricts the definition and permits Congress to create the offense. The crime is prohibited by legislation passed by Congress. Therefore the United States Code at states "whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States." The requirement of testimony of two witnesses was inherited from the British Treason Act 1695.

In the history of the United States there have been fewer than 40 federal prosecutions for treason and even fewer convictions. Several men were convicted of treason in connection with the 1794 Whiskey Rebellion but were pardoned by President George Washington. One of American history's most notorious traitors, in which his name is considered synonymous with the definition of traitor, is Benedict Arnold. The most famous treason trial, that of Aaron Burr in 1807 (See Burr conspiracy), resulted in acquittal. Politically motivated attempts to convict opponents of the Jeffersonian Embargo Acts and the Fugitive Slave Law of 1850 all failed. Most states have provisions in their constitutions or statutes similar to those in the U.S. Constitution. There have been only two successful prosecutions for treason on the state level, that of Thomas Dorr in Rhode Island and that of John Brown in Virginia.

After the American Civil War, no person involved with the Confederate States of America was tried for treason, though a number of leading Confederates (including Jefferson Davis and Robert E. Lee) were indicted. Those who had been indicted received a blanket amnesty issued by President Andrew Johnson as he left office in 1869.

Several people generally thought of as traitors in the United States, including Jonathan Pollard, the Walker Family, Robert Soblen, and Julius and Ethel Rosenberg, were not prosecuted for treason, but rather for espionage. John Walker Lindh, an American citizen who fought for the Taliban against the U.S.-supported Northern Alliance, was convicted of conspiracy to murder U.S. nationals rather than treason.

The Cold War saw frequent associations between treason and support for (or insufficient hostility toward) Communist-backed causes. The most memorable of these came from Senator Joseph McCarthy, who characterized the Franklin Delano Roosevelt and Harry Truman administrations as "twenty years of treason." McCarthy also investigated various government agencies for Soviet spy rings; however, he acted as a political fact-finder rather than criminal prosecutor. Despite such rhetoric, the Cold War period saw few prosecutions for treason.

On October 11, 2006, a federal grand jury issued the first indictment for treason against the United States since 1952, charging Adam Yahiye Gadahn for videos in which he spoke supportively of al-Qaeda.

List of people convicted by country

Related offences

There are a number of other crimes short of treason which are concerned with protecting the state:

See also

Further reading

  • Elaine Shannon and Ann Blackman, The Spy Next Door : The Extraordinary Secret Life of Robert Philip Hanssen, The Most Damaging FBI Agent in US History, Little, Brown and Company, 2002, ISBN 0-316-71821-1
  • Ben-Yehuda, Nachman, "Betrayals and Treason. Violations of trust and Loyalty." Westview Press, 2001, ISBN 0-8133-9776-6
  • Ó Longaigh, Seosamh, "Emergency Law in Independent Ireland, 1922-1948", Four Courts Press, Dublin 2006 ISBN 1-85182-922-9

References

External links

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