14th Century Legislation, as Amended.

A distinguished Ontario litigator I know has made it a personal rule never to cite a case that was reported before the year he was called to the bar.

The British Foreign Secretary Phillip Hammond might want to enquire whether any of the lawyers he likes to retain harbour any such sentiments. Last week Mr Hammond appeared to entertain the thought of laying charges of treason against Britons who go to fight in Syria and Iraq.

The law of treason dates back to an English statute of 1351.

Guy Fawkes and his co-conspirators in the gun powder plot were convicted of it in 1605. They were hung drawn and quartered.

The last person prosecuted for treason in the U.K. was Lord Haw Haw in 1946 for his Nazi propaganda broadcasts. He got off rather more lightly. He was merely hanged.

Cabinet ministers discussed prosecuting IRA bombers for treason in the 1960’s. There were calls for treason charges following the London bombings in 2005. There were no prosecutions in either case.

Among the discussions now circulating on how to deal with British jihadists, there appear to be 3 main reasons why the existing treason law must not be resorted to.

One is the political fear that treason prosecutions will create martyrs, particularly if the death penalty were re-introduced for it, as some are demanding. A second is that the archaic language and medieval constructs in the 14th Century statute (which addresses harm to the king, his wife and eldest son and daughter, but not other members of the royal household) make it impossible to interpret in the 21 st Century. Third, the statute would have to be interpreted in conformity with the 1998 Human Rights Act.

The consensus seems to be that a new law is needed. Not surprising. Not easy either.



  1. David+Collier-Brown

    An orthogonal problem is that it might prohibit people fighting for arguably good causes. The UK had a fair number of citizens who fought against Germany in the Spanish Civil War, in addition to a few who fought against Communism (ie, on the other side).

    In modern time, trying to prevent citizens fighting in foreign wars could prevent UK citizens serving in the Israeli Defence Force, or dual citizens doing their compulsory military service in their home country.

    Having an archaic prohibition dredged up in order to justify the prohibition is adding insult to bad public policy.

  2. You may be interested to know that this treason law has been used to try and condemn a man in Canada.

    On July 6, 1797, two men were accused of high treason the British Crown – one “a tall and remarkably handsome” American from Rhode Island named David McLane, the other a local Quebecker named Charles Frechette. McLane was an American patriot and sympathizer with the French Revolution, who had the misfortune of not keeping his sympathies a secret. The trial lasted fourteen hours. The prosecution called fewer than ten witnesses; one of them was Frechette, who turned against his accomplice, thus saving his own life. A jury of twelve prominent, English-speaking citizens found McLane guilty. Chief Justice William Osgoode pronounced the sentence on thirty-year-old McLane, condemning him to be “hanged by the neck, but not until death; for you will be cut open while alive and your bowels will be torn and burned under your eyes; then your head will be split from your body, which will be cut in four parts; and your head as well as your members will be at the King’s disposal.” The people of Quebec were horrified, thinking it a very harsh sentence for a man whose only real crime may have been talking too much.

    John McLane of Rhode Island was publicly hanged, drawn and quartered two weeks later, in Quebec City on the Place des Glacis (today’s Place d’Youville), on July 21, 1797. His is the only recorded such sentence in Canadian history.

  3. In addition to the example cited above, in Canada the Statute of Treasons was also used during the Northwest Rebellion in 1885. Prime Minister Macdonald, and his Justice Minister (and former Kingston law partner) Alexander Campbell, had experience with this 1351 statue. Macdonald had unsuccessfully defended Nils Von Shoulz back in 1838, when Shoulz was also charged under the centuries old act following an attack in Prescott ON. Shoulz was also brought before a special court martial court, that limited his access to counsel at trial. In 1838 it was argued that the ancient statute and court martial proceeding unlawfully stripped Shoulz of many applicable procedural protections, like right to counsel at the hearing. 47 years later however, the shoe was on the other foot and the Conservative government of the day, led by Macdonald and Campbell, used the Statute of Treasons to prosecute Louis Riel.

  4. Many thanks all for these thoughtful and fascinating comments!
    You don’t often to hear about the first Chief Justice’s sentence in the McLane case.

  5. Jonathan+Westphal

    Some more information on the McLane affair can be found here:


    A fascinating case of which I had been completely unaware until this post.

  6. Elizabeth Greenfield

    You refer to “the archaic language and medieval constructs in the 14th Century statute” as making interpretation in the 21st century impossible. Application (and, I assume, interpretation) last occurred not 70 years ago. Does this mean that language and constructs changed less in the statute’s first 595 years of existence than in the past 68?