The English experience
In advanced countries, treason is an antiquarian offence. Toleration of conscientious objection and a media tendency to mistrust militarism and nationalism and to seek the “sources” of even foreign discontent have made treason an unfashionable allegation, as it implies national moral superiority.
In this age of selective internationalism, where countries’ leaders are constantly in conference with each other over every conceivable subject and almost all the ancient feuds of central and Western Europe have been healed and virtually forgotten, it is understandable that more sophisticated countries are a little reticent about invoking such a drastic charge when less Draconian allegations suffice and are available. This is in stark contrast to the media’s treatment of domestic crime, especially crimes of violent robbery, sexual assault, child molestation and financial corruption. In these matters, alleged offences are touted, amplified and portrayed in the most lurid manner long before any due process has occurred and are bandied about with the clear goal of stirring public fear and outrage. On local television news programs, especially in the United States, the only way to attract any appreciable audience is by hyping the local crime of the day, even if it is the theft by shoplifting of a five-cent cigar.
Prior to the rise of the nation state in the sixteenth century, the principal crimes had to do with religious offences and financial abuse, including usury, which were punishable essentially because they were contraventions of ecclesiastically enunciated norms. With the rise of nations, starting with France, England and Spain, in the times of Francis I, Henry VIII, Ferdinand and Isabella, and then Charles V, treason emerged as political infidelity, often compounded by perceived or alleged heresy against what increasingly became, in these countries, national churches. National monarchies and churches tended to be self-reinforcing, especially in England, where Henry VIII apostatized, officially because the Pope would not grant him annulment of his first marriage, (and there were no legitimate grounds for one). The religious content of penal laws and the strength of the Church generally, opposite the state, declined, especially in England, as Henry seized the great cathedrals and monasteries and looted the Roman Catholic Church to finance his wars in France. He even transposed to himself, through his puppet parliament, the title Defender of the Faith that the Pope had given him in honour of a paper ghostwritten for the king by Erasmus. He adapted the title in his capacity as supreme governor of the Church of England, and it remains on Canadian coinage in respect of the present Queen, although Canada is primarily a Roman Catholic country.
At this point, treason, and especially royal writs of attainder – against those attainted of treason – became rather commonplace and were essentially issued for irritating the king, whether in his sectarian or temporal capacities, and often rather capriciously. Thus, Henry’s chancellor, St. Thomas More, and archbishop, Cardinal Fisher, were beheaded because they declined to follow the king out of the Roman Catholic Church, which was deemed treasonable foot-dragging. Ann Boleyn, his second queen, for marriage to whom he had overthrown the Church in England, he attainted for treason on a trumped-up charge of adultery, because she got on his nerves and failed to deliver a male heir, (although the heir she did produce would be the greatest monarch in British history – Elizabeth I).
Henry VIII continued to use treason as a catch-all offence, as in contemporary America the Racketeering Influenced and Corrupt Organizations Act (RICO) and the Honest Services Statute have been very widely applied to secure convictions of almost anyone targeted by a U.S. prosecutor. Henry beheaded a subsequent (to More) chancellor, Thomas Cromwell, for setting up his marriage to Ann of Cleves, whom he did not like the look or manner of when they met. But after the religious persecutions of Mary I, Henry’s daughter by his first marriage, and, accordingly a Roman Catholic, Elizabeth I, restored Protestantism but pared treason back to acts of rebellion and crimes against the state. Thus, there were plausible claims against Mary Queen of Scots, the Earl of Essex and Sir Walter Raleigh.
After the regicide and other excesses of Cromwell, treason settled down in Britain to outright betrayal of the country, especially in wartime. The most controversial instances were in Irish matters. Given that the United Kingdom eventually legitimized the concept of an independent Republic of Ireland, there is a shadow over the convictions, let alone executions, of the colonial official Sir Roger Casement and the authors of the Dublin Easter Uprising of 1916, including an ordained clergyman, Padraic Pearse. Since World War I, Britain has only invoked treason in acts of assistance to a declared enemy in wartime, of whom there were not many in World War II. Treason, like declarations of war, is out of fashion in Britain and other advanced countries.
Treason in France
A rather parallel course was followed in France, where the secular interests of the king superseded those of the Church in the sixteenth century, especially after the accession of Henry IV, an opportunistic convert from Protestantism (“Paris is worth a mass”). Even Richelieu, who took his role and even his vows as a cardinal seriously, ruled as prime minister secularly (1624-1642), to the point that when he died, the Pope said, “If there is a God, the Cardinal will have a lot to answer for. If not, then he was a great man.”
When the brother of Louis Xlll plotted against him and Richelieu, in the famous Day of Dupes, the cardinal banished the prince from court, exiled the queen mother from France, (“Pleasant voyage to Spain”), without public explanation and executed the lesser plotters for treason. The almost contemporary British Guy Fox plotters suffered the same fate, but there was a strong sectarian component in that case.
With the French Revolution, successively more radical factions proscribed each other as traitors to the Revolution and happily snipped off their heads on the guillotine until the frightened Convention finally wondered who might be next, uprose and declared their masters “outside the law” and to be executed as soon as captured and identified. They sent Robespierre and the Committee of Public Safety en bloc to the guillotine for rapid, assembly-line decapitation without the pretence of a trial.
A hundred years later, the Dreyfus Affair showed the judicial progress of the Third Republic. An innocent man, who happened conveniently to be a Jew, was convicted based on evidence some of the prosecutors knew to be false and was banished to the pestiferous Devil’s Island. The crime was passing military secrets to Germany in peacetime, though France and Germany were virtually at war between the Franco-Prussian War and World War I (1871-1914). Of course, it became a cause célèbre championed by Emile Zola and Georges Clemenceau and other great public tribunes, and Dreyfus was eventually cleared, promoted and made a member of the Legion of Honour.
When Charles de Gaulle returned to liberated Paris in 1944, he charged the smallest possible number with treason, since a majority of the adult population of France had to some extent co-operated with the occupiers. The wartime Vichy premier, Pierre Laval, and the head of the infamous Milice, Joseph Darnand, were tried and executed, but beyond that, only the very most egregious cases were called to account for what, by traditional standards, would have been considered treasonable. De Gaulle judged it preferable to pretend that almost the whole population had resisted the Nazis and that France was largely self-liberated. These flattering fictions, along with his own indomitable nationalism, were the source of much of his subsequent popularity.
The possibility for treason’s revival as active law
The United States was founded when the Enlightenment was in full swing, and it never had an established religion or any collaboration as an independent country between Church and State. Recourse to allegations of treason have been comparatively few: Benedict Arnold in absentia; John Brown for leading a slave revolt, for which he is now regarded as a hero; almost no one after the Civil War, an insurrection in which 700,000 Americans died; a few anarchists after World War I, though Sacco and Vanzetti were convicted of routine criminal offences, not treason; and the Rosenbergs for transmitting military secrets to the USSR in the early Cold War, though the actual charge then was espionage.
Canada’s performance, unsurprisingly, has been even more staid and is almost confined to Louis Riel, who is also now a hero of ethnic self-assertion and cultural survival and graces postage stamps. Since treason has been rolled back to betrayal of one’s country in wartime, and there have been no declared wars since 1945, and most advanced countries have abandoned the death penalty, and most of the West has taken to beating the bushes to justify the conduct of hostile foreigners and rebellious citizens, treason is almost defunct as a concept.
Less judicially advanced countries have generally followed the same pattern as the early British and French governments, though with ingenious application of sophisticated modern techniques of torture and execution. Stalin and Hitler and their satraps mixed treason with disloyalty to the governing political orthodoxy and real, perceived or just fabricated disrespect for the regime or its leader. Stalin developed the technique of torturing his victims, who were usually innocent of all charges, until they came into court in the presence of the international press, confessed, proclaimed their shameful guilt and demanded immediate imposition of the death penalty. Thus vanished almost all of Stalin’s original colleagues in the Politburo on the death of Lenin, except Trotsky, whom Stalin first exiled and then had assassinated.
The Federal Republic of Germany treated support of East Germany as espionage, since it was loyalty to one part of Germany. It is hard to imagine what would provoke a charge of treason in the Federal Republic today.
The Soviet Union had pretty well de-escalated the concept of treason by the time of Gorbachev. Khrushchev banished his opponents to absurd positions in the interior, Brezhnev required them to undergo psychiatric treatment and Gorbachev just dismissed them as a democracy would.
In totalitarian countries such as North Korea and Cuba and in primitive Third World despotisms such as abound in sub-Saharan Africa, treason is as it was in the times of Henry VIII or even the French Revolution. Even China, which is quite cheerful about executing people, does not much invoke treason. It is a concept that is clearly in decline. But if the nature of conflict is to be internal terror directed by phantom foreign enemies and smuggled in and associated with domestic malcontents, a revival is possible. Even though conventional charges exist for every crime, public outrage could revive the concept of this most odious and stigmatizing offence. If the attacks in New York and Washington on September 11, 2001, had been supported by U.S. citizens who survived the attacks, treason could have made a startling comeback. It could yet.