ABSTRACT
The historians who in the last century and a half have addressed themselves to studying the complex Tudor law of treason and how it operated have been few in number although there has been a large amount of writing concerned with the political, religious and economic features of the many conspiracies, insurrections and trai torous expres-' sions of dissent occurring in that period. Only with J.F. Stephen's 'History of the Criminal Law of England' published in 1883 was there a serious attempt to break away from reliance on the writings of Coke and HaIe and to place the law of treason in a proper historical setting, albeit in a way which was extremely rudimentary. (1) In regard to the scope of the treason law the important issue for Stephen was why the act of 1352 was found insufficient in the years 1533-1603 and how it was supplemented. He divided the treason legislation of Henry VIII's reign into those acts aimed at securing this 'great religious and political revolution' by maintaining the king's position against the pope and the statutes that were intended to protect the king's plans for the succession. Rightly he fixed on the use made of the treason act of 1352 from the Henrician reformation to the death of Elizabeth, drawing attention to periods when he thought the statute was interpreted narrowly and others when it seemed a wider interpretation prevailed. The former he identified with the later years of Henry VIII, the latter with the reign of Elizabeth. Stephen was acute enough to notice how unsatisfactory were the comments of Coke and HaIe on conspiracy to levy war. He pointed out that the act of 1352 omitted the offence, and argued that the defect could only be remedied by special legislation. He also drew attention to the medieval statute's failure to rrake treason out of forming an intent to depose or incapacitate the king. In his comments on the scope of
W.S. Holdsworth, in his 'History of English Law', followed Stephen in identifying three types of addition to the treason law by the Tudors. (3) He devoted a relatively large amount of space to the statutes which expanded the act of 1352 (and were thus 'of more permanent interest'), quoting and offering some sort of explanation of the terminology of each and showing that they 'clearly brought within the law of treason' the two great omissions of the medieval statute 'conspiracies to levy war which had for their object the deposition or coercion of the sovereign'. He was particularly eager to emphasize that in Elizabeth's reign, in contrast with those of her father, brother and sister, new statutes on treason ceased to be promulgated because of the judges' use of 'construction', that is to say the interpreting of an existing act (usually that of 1352) so that it covered a greater variety of treasons than had originally been supposed or intended. Constructive treason, he argued with some cogency, derived primarily from the clauses in the 1352 act which made it treason to compass or imagine the king's death or to levy war against him. (4) However, he did not notice, as did Miss Thornley a few years later, that examples of constructive treason could be found be fore the Tudor period. (5) Little of Holdsworth's contribution to the history of the Tudor law of treason was original. Where he did not follow Stephen he used Coke and HaIe, other treatise writers like Fitzherbert, and the report of the trial of Roger Casement. He utilized almost no archival material and provided little historical background. Where Holdsworth did advance Tudor-treason scholarship was in attempting a comprehensive survey of treason legislation through considering, in addition to the acts dealing with central themes, such less important aspects as counterfeiting and forgery, the statutes making reference to witnesses and 'offences cognate to treason'. Yet, when all is considered, his comments on treason cannot be said to be among the better sections of his work.
