Abolishing treason

There's an interesting article in the latest Australian Law Journal by Graham McBain on "Abolishing the crime of treason". It applies to the UK, but its still interesting reading.

Treason in the UK is still governed by medieval and common law, including the Treason Acts of 1351 and 1702. These make it a crime to

• "compass or imagine [plan - I/S] the death of our lord the King, or of our lady his Queen or of their eldest son and heir";
• "violate the King's companion, or the King's eldest daughter unmarried, or the wife the King's eldest son and heir";
• interfere with the royal succession;
• kill certain judges;
• "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".

All of these offences were originally punishable by hanging, drawing, and quartering, but are now punishable by life imprisonment.

The first four items on this list are dismissed immediately as "antiquarian curiosities". The UK now has well-established laws against murder and rape, and it is inconceivable that they would not be used if such a case arose. As for the succession clause, it has never been used, and with the shift in power from the monarchy to the elected Parliament, is never likely to. Which just leaves "levying war" and "adhering to the king's enemies".

On levying war, McBain is very clear: the offence is to levy war against the sovereign. Traditionally this was done in an effort to usurp them through civil war or rebellion, and required open display of arms or banners, but later (and rather constructive interpretations) declared that a riot which opposed a law or attacked a public building was "levying war", and then conflated the state with the sovereign to boot. No modern court would follow these interpretations (the former being based on some rather dubious precedents, the latter being expressly contrary to the Act itself), and in any case they have been supplanted by other law (including laws covering riots, criminal damage, arson and terrorism). This leaves only the core offence of waging war against the sovereign to dethrone them - something fashionable in the C15th when the monarchy was the state, but simply ludicrous now given its irrelevancy. McBain therefore proposes repealing this section of the law, essentially on the grounds that the monarch is a powerless figurehead, and nobody really cares about them anymore.

On "adhering to the King's enemies", McBain proposes repeal not on the liberal basis that it gets the relationship between state and citizens exactly arse-backwards (the state owes us allegiance, not vice versa; loyalty is by consent, rather than an obligation of birth, and can be withdrawn at any time), but rather because the existing law on the subject is arcane and unclear. He notes that during World War II, the British government passed the Treachery Act 1940 (now repealed) to provide a clear description of the offence and make it subject to normal rules of evidence, rather than rely on a medieval law. McBain proposes that the existing law be repealed, to be replaced in times of war with a similar special-purpose act of limited duration. While I'm unhappy with this, it is better than the present situation of leaving an archaic law lying around to be abused by Parliament and the police (as it seems to have in the past).

As for New Zealand, treason is defined in s73 of the Crimes Act 1961. Unlike the UK, offences here are against "New Zealand" rather than the sovereign personally, so most of McBain's criticisms do not apply (however, the liberal ones against the entire idea of "treason" do. Again, we are free citizens, not vassals; we owe allegiance to no-one, but instead consent to be governed; and we can withdraw that consent at any time if that government fails to live up to our expectations). However, we still retain the archaic offence of killing, injuring, or imprisoning the monarch in s73(a). That clause should go, for two reasons. Firstly, it is already covered by existing law on murder, assault, and kidnapping; and secondly, on egalitarian grounds. As a country which believes in equality under the law, we should not be granting such special legal protection to any individual, let alone on the basis of birth.