The Bizarre State of Treason in Tudor England
It’s no surprise that much of Tudor history is very strange. This was, after all, a period of huge and unprecedented change in terms of religion (through the Reformation), economy (as the country shifted closer towards capitalism), and politics (as the Crown sought more control over Wales and Ireland among other things). Also ongoing at the time was a rather tumultuous, unpredictable, and dangerous legal tussle regarding what should constitute ‘treason’.
Most people probably conceive the crime of treason (specifically, high reason) to be any attempt to kill, harm, imprison, or otherwise dethrone the monarch. This is largely true and it’s unlikely that you’ll find yourself committing treason by mistake. However, in the sixteenth century, the definition of high treason was in such a state that it was — in theory — never possible to say for sure that you weren’t guilty of it. The reason for this is simple: the legal groundwork of treason at the time stemmed from the 1351 Treason Act and the bedrock of the act is flawed, to say the least. The crux of the act is fairly simple and sound; that the three main acts which comprise ‘treason’ are (1) compassing or imagining the King’s death, (2) levying war against the King, and (3) adhering to the King’s enemies. However, a key condition at the end states that ‘if any other case supposed treason which is not above specified doth happen before any Justices, the Justices shall tarry without any going to judgement of the treason till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony’. This proviso completely changed the nature of treason in English law. Essentially, any action which could be deemed by Parliament (who were often under pressure from the reigning monarch) to be treason could be made such and retrospectively applied to the act in question. The law itself is actually still in effect, although it has undergone so much change that — as with the Ship of Theseus — it’s hardly appropriate to refer to it as the 1351 Treason Act. This seemingly intentional loophole was quick to be picked up on and exploited by future monarchs. Following the Peasants’ Revolts of 1381, King Richard II introduced the Treason act of 1381 which made ‘any manner of riot and rumour’ high treason. The act was repealed before the end of that century but the damage was done. So much as speaking against the King, or organizing any protest (be that explicitly against the Crown or not) could be made high treason the next day and you could be executed for it.
Under the Tudors, the subject of treason was inherently an important one. Henry VII had won his crown through battle and with a remarkably weak claim to the throne. Henry, ever a cunning man, dealt with this through sneaky legal actions. His 1495 Treason Act, often known as the Rex de Facto Act, made it clear that no man fighting in a war on behalf of the de facto monarch could subsequently be charged with treason. This had the practical effect of ensuring that Henry VII’s supporters could not in the future be accused of treason for supporting him if his enemy were to (through some technicality) become de jure monarch. Notably, it also marked the first real time that English law recognised the potential difference between de facto and de jure monarchs. Moreover, the fact that ‘levying war’ against a monarch was treason meant that although riots were explicitly not treason, any group of people who directed violence against the King or his authority could be guilty of it. This had two primary benefits. Firstly, it meant that even a small uprising against a local authority could come under the purview of treason. Secondly, it put any private feuds between noble families (such as the Percy-Neville feud of the 15th century) in an uncomfortable position. After all, where did a simple riot end and the act of ‘levying war’ begin? Ultimately, that would be for Parliament and the Crown to decide and as Henry VII continuously cracked down on the power of the nobility (now ‘overmighty subjects’), it simply wasn’t a risk worth taking.
Edward Coke, the renowned jurist of Elizabethan and Jacobean England, took aim at precisely this blurred line. ‘If three or four or more [people] do rise to burn or pull down an enclosure’, he wrote, ‘this or the like is a riot [and thus not treason]’. However, ‘if they had risen of purpose to alter religion established within the realm, or laws, or to go from town to town generally and cast down enclosures, this is a levying of war [and thus treason]’. In other words, they key distinction between a riot and a levying of war was the particularity of the actions (i.e how widespread it was) and its relation to the Crown (attacking private estate is different from opposing laws decreed by the monarch).
There’s much more that can be said about treason at the time, such as how ‘constructive treason’ was used to dispose of people who hadn’t so much as committed treason as they had vaguely posed a threat to the King (such as Edmund & Dudley and Sir William Stanley) or how the Reformation and succession fears of Henry VIII’s reign informed his attitude towards the Treason Acts he proposed. However, what I wish to end on is what I think epitomises the ludicrous nature of treason at the time: the case of Richard Roose in 1531. I’ve previously written about the case and it can be read here, if you want more details:
In that article, I looked at the nature of ex post facto laws at the time (laws which were retrospectively applied to their breakers). However, the case has another interesting facet which is more appropriate to the subject of treason. Specifically, it is that the law (An Acte for Poysoning) which condemned Roose to death by boiling for a crime which didn’t exist at the time of his committing it was in fact high treason. Had Roose’s poisoning been against the King or his heir, consort, even principle ministers, then this law might make sense. However, the crime was committed against John Fisher, the Bishop of Rochester, and not the King or any high-ranking member of the government. As Joseph Robson Tanner puts it, ‘a characteristic of Henry VIII’s legislation on the subject of treason is that it abandons any logical legal principle, and converts treason into a crime which has no character except heinousness’.
