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Published online by Cambridge University Press: 02 January 2018
Recently, the Law Commission has indicated that it will be considering the abolition of the crime of high treason. The purpose of this paper is to analyse the interesting legal history of one of the offences which go to make up high treason – violating the sovereign's wife or his eldest unmarried daughter or the wife of his eldest son and heir – and to argue for its abolition.
The Law Commission, in its Tenth Programme of Law Reform (LC 311) has indicted that it will be considering the abolition of the law of treason in 2009/10.
1 Coke Institutes of the Laws of England vol 3 (1st edn, 1628–41, 1823 edn) p 3: ‘Treason is derived from trahir which is treacherously to betray’. W Blackstone Commentaries on the Laws of England vol 4 (1st edn, 1765–66) p 75: ‘Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith’. See also F Pollock and F Maitland History of the English Law before the Time of Edward I (1899) and W Holdsworth History of English Law vol 3 (Sweet & Maxwell, 1966) p 287.
2 W Bund Selection of Cases from the State Trials vol 1(1879–82) p 305 stated that, between 1485 and 1603 there were no fewer than 68 treason statutes enacted, although there had been less than 10 in the period 1352–1485. For commentary on many of these statutes up to William III (1702), see Hale History of Pleas of the Crown vol 1 (1736).
3 The Treason Act 1842, s 2 does not deal with treason as such, but with assaults on the sovereign. See Appendix, also Halsbury Laws of England vol 11(1) (Butterworth, 4th edn, 1987) para 87.
4 Coke, above n 1, vol 3, p 3: ‘Treason is divided into two parts, viz. high treason, alta proditio, and into petit treason, proditio parva ’. Petty treason covered situations where a servant slew his master, a wife her husband, or a man his prelate to whom he owed faith and obedience. When it was abolished, these offences were reduced to murder.
5 The first case where the later punishment for treason was employed appears to have been in 1242, to punish William Maurice, convicted of piracy. Drawing, beheading and quartering were abolished in 1870 (it having been provided in 1814 that beheading and quartering not take place until after the prisoner was dead). See also Bellamy, JG The Law of Treason in England in the Later Middle Ages (Cambridge University Press, 1970) p 23 CrossRefGoogle Scholar and JG Bellamy The Tudor Law of Treason (Routledge, 1979) ch 5.
6 The man was drawn to the gallows on a sledge (or hurdle) and hung by the neck. While still alive he was cut down, castrated and his entrails taken out. These were burned in front of him. His head was then cut off and his body divided into four, which pieces (after being boiled in salt and cummin seed) were often hung on stakes for public display, sometimes in different parts of the kingdom: Blackstone, above n 1, vol 4, p 92. The traitor's lands were also forfeit. See also Radzinowicz, L History of English Criminal Law (Stevens, 1948) p 220 Google Scholar et seq and A Luders Tracts on Various Subjects in the Law and History of England (1810) Tract 2, Of the Judgment in High Treason.
7 The last person to suffer this for treason was Catherine Murphy in 1789 (for coining). In 1790, hanging for women was substituted, see 30 Geo III c 48.
8 On conviction for treason a person becomes (and until he has suffered punishment or received a free pardon continues to be) incapable of holding any military, air force or naval office or any civil office under the Crown or other public employment; or of being elected, sitting or voting as a member of either House of Parliament; or of exercising any right of suffrage: Halsbury, above n 3, vol 11(1), para 1340. Pension benefits may also be affected. Forfeiture on treason and attainder were abolished by the Forfeiture Act 1870, s 1 (repealed). See also Richardson, J (ed) Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 2007)Google Scholar para 25–6.
9 Coke, above n 1, vol 3, p 1 translated this as, ‘if a man do violate the kings companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir’. However, both references should be to ‘companion’ (or to ‘wife’) since the Norman French version uses the same word, ‘compaigne ’.
10 The wording of Coke is slightly different, above n 1, vol 3, p 1, ‘si home violast la compaigne le roy, ou leigne file le roy nient marie, ou la compaigne leigne fitz et heire le roy ’. However, there appears to be no material difference.
11 The State trials do not disclose any. Nor the texts mentioned in this paper.
12 Harris, SF Criminal Law (Sweet & Maxwell, 22nd edn, 1973)Google ScholarPubMed. See also Law Commission Codification of the Criminal Law: Treason, Sedition and Allied Offences Working Paper No 72 (1977) p 10: ‘This area of law receives scant attention in modern criminal law textbooks’. W Eden Principles of Penal Law (2nd edn, 1771) p 114 called it an antiquarian curiosity which deserved no notice to be taken of, and JF Stephen History of the Criminal Law of England vol 2 (1883) p 249 regarded it as of no ‘practical or historical interest’. Coke, above n 1, vol 3, pp 8–9 and Hale, above n 2, vol 1, p 128 had little to say about it.
13 Anglo-Norman dictionary, available at http://www.anglo-norman.net. Variants include: compaine, compaisne, cumpaigne etc.
14 Britton (c 1290 [transl Nichols 1865]) vol 1, p 108: ‘purgiser nostre cumpayne ’ which Nichols (as editor) translated as ‘violating our consort’.
15 Coke, above n 1, vol 3, p 8: ‘This word compagnie (which is all one with comfort or wife)’. Blackstone, above n 1, vol 4, p 81: ‘By the king's companion is meant his wife’. See also W Hawkins Treatis of the Pleas of the Crown (1st edn, 1721) p 37.
16 Among others the Anglo-Norman dictionary quotes Public Record Office PRO E 101/395/2/222: ‘nostre treschere compaigne la Roine ’. See also F Palgrave (ed) The Parliamentary Writs and Writs of Military Summons (1827–34) p 132: ‘Sire W en proper persone e sa compaigne ’. A word search of the Parliament Rolls (Parl Rot) (1272–1504, CD Rom by Scholarly Digital Editions) discloses many similar references.
17 Anglo-Norman dictionary, amies (mistress), amorette, amerus (lover). Bracton On the Law and Customs of England (c 1240 [transl Thorne, 1968–77) referred to concubine and amica ; eg, vol 2, p 416. Britton, above n 14, vol 1, pp 119 and 231 referred to amies (mistress) and concubine.
18 Ibid: ‘Zacarie, va compaigner ou ta femme ’ (Bible).
19 Coke, above n 1, vol 3, p 8. He held the same opinion as to the meaning of ‘companion’ in respect of the wife of the eldest son and heir. See also Holbourne Reading in Lincoln's Inn, Feb 28, 1641 upon the Statute of 25 Edw 3 cap 2 (ie Treason Act 1351) pp 39–40 and Hale, above n 2, vol 1, p 124.
20 Coke does not appear to have considered the situation where the wife of the king was violated just before or just after the king's death and then gave birth, which would have given rise to uncertainty as to whether the child was that of the king or of another.
21 Blackstone, above n 1, vol 4, p 81: ‘The plain intention of this law is to guard the royal blood from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it, for to violate a queen or princess dowager is held to be no treason: in like manner as, by the feudal law, it was a felony and attended with a forfeiture of the fief, if the vassal vitiated the wife or daughter of his lord; but not so if he only vitiated his widow’. See also EH East Pleas of the Crown vol 1 (Butterworth and Cooke, 1803) p 65.
22 Holbourne, above n 19, p 39. Nor did Hale, above n 2, vol 1, p 124. Nor East, above n 22, p 64.
23 Maitland translated this as ‘By those adulterers who ravish the king's wife’. In other versions of the Mirror of Justices (c 1290) Selden Society, vol 7 the word purgiser was used.
24 Coke, above n 1, vol 3, p 8.
25 ‘si home violast la compaigne le roy, ou leigne file le roy nient marie, ou le compagnie la compaigne leigne fitz et heire le roy .’
26 See the website available at http://www.anglo-norman.net. Violer means to do violence to, to damage, violate, rape or ravish.
27 R de Glanvill Treatise on the Laws and Customs of the Realm (c 1189) p 175: ‘Raptus crimen est quod aliqua mulier imponit viro quo proponit se a viro vi oppressam in pace domini regis ’ (‘In the crime of rape a woman charges a man with violating her by force in the peace of the lord king’).
28 Bracton, above n 17, vol 2, pp 414–420, 344–345, 393–394.
29 Fleta, Selden Society, vol 72, pp 51, 82, 88. It may be noted that the words ‘rape’ and ‘ravish’ in medieval times also covered the seizure of a woman lacking a specific sexual content, such as her abduction. However, I do not believe that the word ‘violer’ in the Treason Act 1351 was designed to cover the abduction of the sovereign's wife and the legal commentators have not suggested this. See also Gravdal, K Ravishing Maidens' Writing Rape in Medieval French Literature and Law (University of Pennsylvania Press, 1991)Google Scholar, who looks at the Anglo-Norman words for rape, including ‘esforcer’ (esforcier, efforcier, esforchier). See also Gravdal, K Ravishing Maidens’ Writing Rape in Medieval French Literature and Law (University of Pennsylvania Press, 1991)Google Scholar, who looks at the Anglo-Norman words for rape, including ‘esforcer’ (esforcier, efforcier, esforchier). See also Carter, JM Rape in Medieval England (University Press of America), in particular, ch 4.Google Scholar
30 Statute of Westminster 1275, c 13, ‘nul ne ravise... dameselle deins age ’ (none do ravish... any maiden within age). See also Coke, above n 1, vol 2, p 179.
31 Statute of Westminster 1285, c 34: ‘si home ravist feme epouse, dameselle, ou auter feme desormes, per la ou el ne soit assentus... ’ (‘if a man do ravish a woman married, maid or other, where she did not consent... ’). See also Coke, above n 1, vol 2, p 432.
32 Britton, above n 14, vol 1, p 108: ‘purgiser nostre cumpayne ’. Also vol 1, p 41: ‘ou de purgiser des filles lour seignurs ou des norices de lour enfauntz ’, referring to the violation of the daughters (or the nurses of the children) of a lord by a man who owed his dependence, or homage, to that lord. For variants of the word, see the Anglo-Norman dictionary, above n 26.
33 Mirror, above n 23, p 52. See also Coke, above n 1, vol 2, p 179; Blackstone, above n 1, vol 4, p 210: ‘the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will’. Also, Hale, above n 2, vol 1, p 627 and Fleta, above n 29, vol 72, p 89 (‘lay with her against her will’).
34 For examples, see the Roll and Writ File of the Berkshire Eyre of 1248. Selden Society, vol 90, Index (rape).
35 A modern translation from the Parl Rot, above n 16, states (correctly, it is asserted), ‘if any man rapes the king's spouse, the king's eldest daughter when unmarried, or the spouse of the king's eldest son and heir’ (original emphasis).
36 Coke, above n 1, vol 3, p 9.
37 Ibid: ‘if the wife yield and consent to him that commits this treason, it is treason in her’.
38 They only situation where it was held by statute to be rape, even if consensual, was when a girl was below the age of 12 (Statute of Westminster 1275, c 13 (any maiden within age (neither by her own consent, nor without)). See also 18 Eliz c 6 (1575–6) (below the age of ten). Blackstone, above n 1, vol 4, p 212: ‘carnally knowing or abusing any woman child under the age of ten, in which case consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion’. Also Coke, above n 1, vol 3, p 60. For the use of the ‘violacion ’ in a consensual context, see below n 97.
39 Adulterie : also spelt Avouterie, eg Britton, above n 14, vol 2, pp 281, 284. The Statutum de Circumspecte Agatis 1285 refers to ‘adulterio ’, as does the Statute of Westminster 1285, c 34.
40 Eg campaigner, copuler coire, iacere,etc. Compaignie charnele (or humaine ) was sexual intercourse. See also Gravdal, above n 29, pp 3, 132, 133.
41 Blackstone, above n 1, vol 4, p 81. See also Hale, above n 2, vol 1, p 124; Viner Abridgment (2nd edn, 1791) Prerogative Be and East, n 22, p 65. Also, Halsbury, above n 3, vol 12(1), para 29: ‘The life and chastity of a Queen Consort are protected by the law of treason during her marriage to the King regnant. She herself will be guilty of treason if she consents to the violation of her chastity’. Halsbury does not appear to state anything in relation to the wife of the eldest son and heir.
42 Stephen, above n 12, vol 1, pp 14–16 (punishment for adultery was banishment and loss of goods). Cf adultery with a princess of the imperial family appears to have been treason under later Roman law: Lear, FS Treason in Roman and Germanic Law (University of Texas Press, 1965) p 30 Google Scholar. Under the Laws of Canute (1016–35) adultery incurred a fine, though there appears to be no treason in respect of the sovereign's wife. See also Whitelock, D English Historical Documents c 500–1042 (Eyre & Spottiswoode, 1955) p 426.Google Scholar
43 Under the Laws of Henry I, adultery was subject to a fine: Downer, LJ (transl) Leges Henrici (Oxford University Press, 1972) p 111.Google Scholar
44 Bracton made it clear that sex with the woman's consent was a defence to rape: above n 17, vol 2, p 416 ('defiled her with her consent and not against her will’). See also Britton, above n 14, vol 1, p 55. See also Hale, above n 2, vol 1, pp 103–104.
45 See the Anglo-Norman dictionary, above n 26. See also Dictionary of Middle English, available at http://www.hti.umich.edu/dict.
46 Britton, above n 14,, vol 1, p 41. His editor, Nichols, translated the word purgiser as to violate in this context.
47 For references to adultery, see vol 1, pp 280, 284; vol 2, p 281 and to rape, vol 1, pp 40, 98, 108. Adultery otherwise was not a crime under the common law – although it could result in loss of dower; eg Britton, above n 14, vol 2, p 282. See also Fleta, above n 29, p 90.
48 The only case which might suggest that adultery with the wife of a king or heir is treason is that of William Marshal who was accused in 1182 of being the lover of Margaret, wife of Henry the Young King, son of Henry II (he was made king of England during his father's lifetime but is not treated as such). When Henry II held court in Caen, Marshal offered to prove his innocence by judicial combat. However, it was not accepted and he was given safe conduct to leave Normandy. See Lawsuits from William I to Richard I, Selden Society, vol 107, p 591.
49 Violer can also mean to deflower. However, this latter word usually means to take the virginity of. Thus, it would not be relevant in the context of a married woman, such as the wife of the sovereign or heir. For the case of the eldest daughter, see section 6.
50 In France, in 1314, two nobles were executed for treason for adultery with the king's daughters-in-law: Cuttler, SH Law of Treason and Treason Trials in Later Medieval France (Cambridge University Press, 1981) pp 29–30.Google Scholar
51 Although executed as a traitor, Mortimer was not charged with this: 1 St Tr 51 (1330). See also Mortimer, I The Greatest Traitor (Jonathan Cape, 2003) pp 145–148, 242.Google Scholar
52 (1536) 1 St Tr 409. See also Baga de Secretis KB 8/8 (Smeaton etc) and 8/9 (Boleyn). See also State Letters and Papers Foreign and Domestic of the Reign of Henry VIII 1862–1910, vol 10, p 361.
53 Third Report of the Deputy Keeper of the Records (1872), Appendix 2, p 244 (original underlining).
54 The proceedings were printed in C Wriothesley A Chronicle of England During the Reign of the Tudors from AD 1485 to 1559 vol 11 (Camden Society, 1875) Appendix where the words used for the adultery were that each man ‘violabat, viciabat et carnaliter cognoscebat ’ the queen. The men cited were Mark Smeaton, Henry Norris, Sir Francis Weston, Lord Rochford and William Brereton (Bryerton).
55 General accounts suggest that some of the places were inaccurate, since the queen was elsewhere. See Ives, E Anne Boleyn (Wiley Blackwell, 2004) p 344 Google Scholar and . See also ; and
56 Chapuys, the Ambassador to Charles V of Spain, indicated that only one of the men (Smeaton, her musician) confessed and that, ‘The others were condemned upon presumption and certain indications, without valid proof or confession’: State Letters and Papers, above n 52, p 377.
57 Bellamy The Tudor Law of Treason, above n 5, p 40. This was unusual since, as Bellamy notes, p 39, in the important trials which occurred between 1535 and the end of the reign, ‘The indictments often stated under which act the suspect was being accused.’ Amos Observations on the Statutes of Henry VIII (1859) p 27 also noted this.
58 28 Hen VIII c 7 (1536), passed just after the execution of those involved, also referred to the treasons of Anne Boleyn and her co-accused, ‘to the fearful peril and danger of the destruction of your most royal person’ (original emphasis).
59 Chapuys, above n 56, states: ‘she was principally charged with having cohabited with her brother and other accomplices; that there was a promise between her and Norris [one of her alleged adulterers] to marry after the king's death, which it thus appeared they hoped for; and that she had received and given to Norris certain medals, which might be interpreted to mean that she had poisoned the late queen [Catherine of Aragon] and intrigued to do the same to the Princess [later Queen Mary]... She was also charged, and her brother likewise, with having laughed at the king and his dress, and she showed in various ways she did not love the king but was tired of him’. The allegation of poisoning was not mentioned in the indictment and the last two points were not treasonous in any case.
60 33 Hen 8 c 21, s 10: ‘If the queen... move procure or stir any person by any writing message or tokens or otherwise for that purpose to use or to have carnal knowledge [of her]’. See Appendix.
61 25 Hen 8 c 22, s 5. See Appendix. Amos, above n 57, p 26 thought the adultery fell under this section.
62 26 Hen 8 c 13, s 1, if any person maliciously: ‘wish, will or desire, by words or writing, or by any craft imagine, invent, practice or attempt any bodily harm to be done or committed to the king's own royal person’ (original emphasis). See also Stephen, above n 12, vol 2, pp 256–257.
63 25 Hen 8 c 22, s 5. It made it treason if any person maliciously do anything to the ‘peril slander or disherison of any of the issues’ whereby they might be ‘destroyed, disturbed or interrupted in body or title of inheritance to the Crown of this Realm’ (original emphasis). See Appendix.
64 It is dubious whether there could be said to be any slander, in fact, since the earliest instance of Anne's adultery specifically cited in the indictments was with Norris on 12 October 1533. This could not have affected the legitimacy of Elizabeth who was born on 7 September 1533. However, Anne delivered a pre-mature (and, possibly, deformed) male child in (it is thought) late January 1536 and the reference may be to him. Lord Rochford was charged with having had sex with her on 5 November and 29 December 1535. In the case of the others the dates were November and December 1533 and April, May, June 1534. See also Amos, above n 57, pp 333–336.
65 Spelman's Reports, vol 1, Selden Society, vol 93, pp 70–71: ‘And the points against the queen were that she procured the said lord her brother and the other four to defile her and have carnal knowledge of her, and that they did so; and that they conspired the king's death, for she said that the king should never have her heart and she said to each of the four by himself that she loved him more than the others, and this slandered the issue which was begotten between her and the king, which is made treason by the statute of the twenty-sixth year of the present king’ (original emphasis). The reference should be to 25 Hen 8 c 22, s 5 (1553) and not to the Act of 1534, above n 62.
66 Burnet The History of the Reformation of the Church of England vol 6 (revised edn of Nares (c 1820) 1679–81) p 326 quoted in 1 St Tr 417. He noted the charge was that she had said to her alleged adulterers, ‘to every one of them by themselves, that she loved them better than any person whatsoever: which was to the slander of the issue that was begotten between the king and her. And this was treason, according to the statute made in the twenty-sixth year of this reign (so that the law, that was made for her, and the issue of her marriage, is now made use of to destroy her). It was also added in the indictment, that she and her accomplices had conspired the king's death; but this it seems was only put in to swell the charge; for if there had been any evidence for it, there was no need of stretching the other statute; or if they could have proved the violating of the queen, the known statute of the twenty-fifth year of the reign of Edward III, had been sufficient’. The reference to the Act of 1534 should be to that of 1533 (Burnet followed Spelman in the mis-reference).
67 Eden, above n 12, p 114: ‘She was convicted therefore on a statute made two years before’ (referring to the Act of 1533). See also D Hume History of England vol 3 (1788 edn) pp 116–119. See also Burnet, above n 66, pp 501–504.
68 The only evidence for this in the indictment involves interpreting Anne's alleged promise to marry one of her adulterers (she is said to have made it to Norris) whenever the king died, as constituting a plot, or incitement, to kill the king. However, there is no overt act to support it.
69 Bellamy The Tudor Law of Treason, above n 5, p 41: ‘Whichever act the offences were held to have fallen under, it was an excessive piece of construction. There was nothing in the history of treason to suggest that adultery on the part of the queen was traitorous’. See also Amos, above n 57, p 28 (constructive self-violation).
70 Wriothesley, above n 54, vol 11, p 40. The record of the court appears to have been burnt (according to Burnet, above n 66, p 328). However, the annulment was subsequently reflected in 28 Hen VIII c 7, s 12 (enacted in June 1536). See Appendix. This annulment appears to have been kept secret: Spelman's Reports, vol 1, Selden Society, vol 93, p 59. See also Amos, above n 57, p 29.
71 The actual written confession no longer appears to exist. See 1 St Tr 447. For the supposed form of the confession, see Smith, LB A Tudor Tragedy: The Life and Times of Catherine Howard (Jonathan Cape, 1961) pp 184–185 Google Scholar. See also . As to a subsequent confession by Howard to the Duke of Suffolk, see 1 St Tr 451. The Act of 1541 refers to a ‘confession’ by Catherine Howard. See Appendix.
72 See 1 St Tr 446. See also State Letters and Papers, above n 52, vol 16, pp 608, 616, 622.
73 See Baga de Secretis KB 8/13/1. See also Third Report of the Deputy Keeper of the Records (1872) Appendix 2, Pouch 13.
74 It should be noted that the indictment did not claim that Dereham actually committed adultery with her after her marriage. Hall Chronicle (1550 edn) pp 244–245 mentions only pre-marital sex between Dereham and Catherine.
75 Catherine Howard denied any such pre-contract. See Smith, above n 71, p 185. This may have been a fatal error on her part.
76 See Smith, above n 71, p 185: ‘There is no scrap of evidence to indicate an overt act of adultery’. See also Hall, above n 74, p 245 (who insinuates slandering the issue was the charge) and State Letters and Papers, above n 52, vol 16, p 1426. Cf Hutchinson, above n 71, p 47. The indictment also asserts that Catherine told Culpepper that she loved him above the king and all other men. This has unpleasant echoes of Anne Boylen's indictment.
77 It may be noted that Catherine never appears to have confessed to adultery, although she did confess her pre-marital activity with Dereham and Mannock.
78 It is said that Catherine declined a trial: Lord's Journal (1541), vol 1, p 171. See also State Letters and Papers, above n 52, vol 17, p 50. The Parliamentary History of England (1806), vol 1 noted that the Lord's Journal broke off when dealing with the attainder of Catherine Howard. It considered this was done by design, being ‘a trick of state, to prevent posterity being acquainted with some matters’. See also 1 St Tr 451.
79 See Third Report of the Deputy Keeper of the Records (1872), Appendix 2, pouch 13.
80 See above nn 60 and 61.
81 28 Hen 8 c 7, s 12. It made it treason for a person to do anything to ‘the peril of your most royal person’. This Act was passed after Anne Boleyn's execution and, thus, did not apply to her case. See Appendix.
82 Bellamy, The Law of Treason in England in the Later Middle Age, above n 5, p 209: ‘The terms “subverting the realm”, “destroying the realm” or “traitor to the realm” were never the sole basis of an accusation of treason. They were only used to aggravate charges of treason which were acceptable at common law, that is to say, compassing the king's death, levying war against him, adhering to his enemies and the like’.
83 See the indictment for Anne Boleyn, above n 53, ‘the king, having... become acquainted with the... crimes... had been so grieved that certain harms and dangers had occurred to his royal body ’.
84 The charge was alleged in Parliament. It related to her committing adultery abroad with an Italian who owed no allegiance to the sovereign. Since his conduct did not amount to treason, there was no treason to which she could be a party. See Report of the Proceedings before the House of Lords on a Bill of Pains and Penalties against her Majesty Caroline Amelia Elizabeth (1821). See also Law Commission, above n 12, p 20 and Fulford, R Trial of Queen Caroline (BT Batsford, 1967)Google Scholar and Kenny, CS Outlines of Criminal Law (Cambridge University Press, 19th edn, 1966) p 400.Google Scholar
85 Eden, above n 12, pp 114–116 thought that neither Boleyn nor Howard were convicted under the Treason Act 1351. The Royal Commission on Criminal Law 6th Report (1841) p 24 regarded them as ‘suspicious precedents’. Cf Catley, P ‘James Hewitt, the Princess of Wales and the Treason Acts’ (1996) 146 NLJ 350 Google Scholar. However, he cites few sources. See also J Baker The Oxford History of the Laws of England vol VI (Oxford University Press, 2003) p 588.
86 Prior to the Treason Act 1351, the Mirror of Justices (c 1290), above n 23, p 15 had included as treason violation of the ‘eldest legitimate daughter before her marriage, she being in the ward of the king ’. Cf Britton, above n 14, p 108 who had included violation of all the sovereign's daughters (‘nos files’).
87 Coke, above n 1, vol 3, p 8. It seems that, if she is violated after the death of her father, this is not governed by the Act. See Hale, above n 2, vol 1, p 129. The reason why the eldest daughter is included is that ‘for default of issue male she only is inheritable to the crown’: Coke, above n 1, vol 3, p 9. See also Kenny, above n 84, p 397 and Royal Commission, above n 85, p 24.
88 Doubtless, the Treason Act 1351 presumed that she would be (as does an Act of 1536, 28 Hen 8 c 24, s 2; see Appendix). The word ‘violer ’ can also mean to deflower, although there were other words such as defoler, defleurer, depuceler, etc.
89 However, anomalously, the Treason Act 1351 does not cover her if she is a widow, nor if she is married with children. East, above n 21, p 65: ‘the law might with more propriety have been applied... when by law her issue might lay claim to the crown’. Stephen was puzzled why this should be an offence of treason in any case: above n 12, vol 2, p 249. See also Royal Commission, above n 85, p 24.
90 Halsbury, above n 3, vol 12(1), para 33.
91 Ibid, para 32.
92 Ibid, para 29.
93 Ibid, para 31.
94 Virgo (latin), pucele (Britton, above n 14, vol 1, p 55), domicella (Fleta, above n 29, vol 72, p 51), virginis (Fleta, above n 29, vol 72, p 66), virgine, virge, etc. See also Gravdal, above n 29, pp 42, 47.
95 See Novae Narrationes, Selden Society, vol 80, p 341 (‘rape de soun pucellage’). See also Pollock and Maitland, above n 1, vol 2, p 491: ‘In the precedent books we find as words of common form ‘abstulit ei virginitatem suam’ or ‘pucellagium suum ’ See also Fleta, above n 29, vol 72, p 96: ‘corrupcione virginum’. See also Gravdal, above n 29, p 109 (‘enlever son pucelage ’).
96 Glanvill, above n 27, p 175; Bracton, above n 17, vol 2, pp 414–418; Britton, above n 14, vol 1, p 55 (‘Rape is a felony committed by a man by violence on the body of a woman, whether she be a virgin or not.’). See also, Fleta, above n 29, p 46 (in the case of the rape of a virgin, the man lost his eyes and testicles).
97 For a case where the word ‘violacion ’ was used, it seems, in the sense of consensual sex, see Earl of Hertford's Case (1563), Dyer's Reports, Selden Society, vol 109, p 81 where the Earl was fined for carnally knowing Lady Catherine Grey. Both the Earl and Catherine asserted that he was married to her. However, it was held that he was not. In the latter case it was compounded by the fact that he had sex with her when she was imprisoned in the Tower of London.
98 See above n 40. See also Stephen, above n 12, vol 2, p 249.
99 See Appendix. ‘Defile’ seems to be designed to cover the case where she was not a virgin.
100 A word search on the Butterworths website on legislation suggests that neither the word ‘violate’ (in a sexual context) nor the word ‘ravish’ is currently used in any extant English legislation. The word ‘ravish’ is used in the Criminal Procedure (Scotland) Act 1995, s 210A (a sexual offence includes the abduction of a woman or girl with intent to rape or ravish. Also, assault with intent to ravish).
101 The Treason Act 1351 would only have covered intercourse per vaginam . There is an added difficulty in that medieval law of rape usually required the completion of coitus – eg Gravdal, above n 29, p 130 – whereas the modern law does not. See also Carter, above n 29, p 147.
102 See above n 19.
103 See above n 84.
104 The only possible precedent is that of Catherine Howard which, for the reasons given above, is unlikely to have fallen within the Treason Act 1351 which, in any case, required actual violation and not just a conspiracy to commit adultery.
105 Under the Prosecution of Offences Act 1985, s 8(1) the chief officer of every police area must give to the Director of Public Prosecutions information with respect to offences punishable with death and treason felony. Treason appears not to be presently covered since it is no longer a capital offence. See Halsbury, above n 3, vol 11(1), para 643, n 4.
106 Law Commission, above n 12, p 31.