From Ruler to Nation

Yet this fixation on the sovereign's person could not last.⁷⁷ Whom or what did the concept of treason seek to protect? Was treason an attack on the person of the sovereign or on sovereignty itself, inde­pendent of its current holder? If treason law protected the sovereign person, then if he were deposed, allegiance remained with him.

As long as treason focused on the ruler, regime change became a parade of treacheries. When the current leader lost, he was defi- nitionally succeeded by traitors turned kings, whose own rule was equally illegitimate and faced the same predicament with the next challenger. In ancient China, a ruler who had driven out his prede­cessor was considered to have polluted himself. To be cleansed, he had to sacrifice a victim—that person was dismembered, his limbs thrown out the city's four gates.⁷⁸ As long as competing would-be rulers battled, as in the European Middle Ages and early modern period, accusations of treason rarely rose above being tit for tat. “Treason does never succeed; and what's the reason?” the famous epigram asks.

Put another way, all political action short of slavish support of the powers in charge could be treason. As a judge, Richard Tresilian, a member of the court party during Richard II's reign, had advanced the king's cause in 1386. With the peers ascendant again the fol­lowing year, he was impeached and executed. Having pronounced treason on others, the judge was now himself killed as a traitor. In Tudor England, treason charges flew fast and furious as lordly lin­eages sought to prevail. Competing accusations of treason inevita­bly arose, with the last word going to the victor of the moment. Most so-called traitors of this period merely had the misfortune of ending on the losing side of a civil war.⁸⁰ Much the same held true during the French religious wars of the sixteenth century, when lese-majeste could be turned at times against the Huguenots and at others against the Catholics, depending on what prince appeared to be next in line for the throne.⁸¹

Besides the inherent anarchy of a personified definition of the offense, in time other forces also helped move treason's focus away from the individual ruler. Whom did the king serve? Himself, the people, something higher? Germanic and feudal law approached relations between ruler and subject contractually and recipro­cally. “Thou shalt be king if thou dost right,” as the Visigoths put it, “but if thou dost not right, then shalt thou not be king.”⁸² In post-Conquest England and France, the feudal relationship was recip­rocal. If the king violated his end of the bargain, vassals could for­mally withdraw fealty (diffidatio) and then wage war against him, all without committing treason.⁸³ A king who became a tyrant lost legitimacy. To rebel against him was not treason. This was clearly spelled out in the various thirteenth-century compacts regulating relations between kings and their barons, most notably the Magna

Carta (1215).⁸⁴ That tradition had been overshadowed in late feu­dalism as one lord gained preeminence and enlisted the crime of treason for his own protection, but its fundamental logic reemerged in the contractarian political theories of the eighteenth century.

Even the absolutist monarchs' pretensions, spurning any criti­cism, were undermined in the sixteenth and seventeenth centuries as the religious persecution sparked by the Reformation prompted contractualist theories of government, and the natural-law tradi­tion reemerged. Natural law insisted that transgression was not just what authority said it was but that the state itself could be consid­ered a criminal if it violated those higher laws by which it should abide. Only those kings who governed according to higher prin­ciple could justify their authority. Tyrants could justly be deposed. John Ponet's A Shorte Treatise of Politike Power (1556) openly advo­cated tyrannicide against Mary Tudor because her rule contravened divine and natural law. Obedience was not to a personal monarch but to a constitutional sovereignty compliant with divine and nat­ural law. In 1579, Phillipe du Plessis-Mornay, the likely Huguenot author of Vindiciae contra tyrannos, argued that it was treasonous for a king to commit crimes against his subjects.⁸⁵ Regicide might be reprehensible, but tyrannicide was justified. Oliver Cromwell's republic in mid-seventeenth-century England rested on similar constitutional assumptions. Kings derived power from the people. If they did not pursue their subjects' good, resistance was justified.⁸⁶ Even Thomas Hobbes allowed subjects to resist kings who harmed them directly.⁸⁷

Whether the standard by which rulers were judged was a supra­political principle or an implicit contract with their subjects, they were held accountable to something other than their own wishes. This principle was institutionalized further with representative rule in the seventeenth century and then with democracy beginning with the eighteenth-century revolutions. Not every criticism or action against leaders was treason. Indeed, they themselves could be guilty of treason. Once rule was justified by a higher standard by which it could fail, traitors were distinguished from common criminals not just because they violated laws—both did that—but because they did not recognize the legitimacy of the law in the first place.

In Europe after the late Middle Ages, the object protected by trea­son laws thus shifted from the person of the sovereign to some­thing more abstract, whether the Crown, the office of the monarch, the existing governmental system, or eventually the nation. As political systems increasingly justified themselves as pursuing the good of the ruled, the crime of treason declined. Why undermine a system that ostensibly helped you? Treason necessarily faded when political change could be effected by means other than resistance, rebellion, and overthrow of authority in that regular change was incorporated into the very functioning of government. As subjects became citizens and thus the ultimate sovereign, treason meant revolting against themselves.

Treason's focus continued to move from sovereign to sovereignty, from ruler to state. In the early thirteenth century, the Magna Carta codified how the English king shared power with his barons and was not a divine ruler, which helped bring forth the idea of the Crown as the bond between the kingdom (the barons who had to be consulted) and the king. The Crown, not the king, was sovereign.⁸⁹ Treason now meant action against the realm more than against the king. By the mid-thirteenth century, treason was seen in France as a crime not just against the ruler's person but also against the province as a larger entity independent of him. The ruler now represented the state; he no longer was the state.⁹⁰ By the early sixteenth cen­tury in England, kingship was no longer understood as a network of personal allegiance but, rather, as an office or a public capacity. The king assumed it, but it existed independently of him.⁹¹ Under

Edward II in 1320, forging of coin was declared to be an affront not just—as the Romans had it—to the ruler but also to the people of his realm.

A century later in Elizabethan England, the state grew fully rec­ognized as a permanent and public entity, existing independently of the monarch. Only thus did the trial of Charles I in 1649 for treason make sense. He had warred against something independent of the monarch, namely “Parliament and Kingdom.” The English civil wars of the 1640s crystallized out an impersonal concept of the state, where the kings' sovereignty was derogated to them by the people.⁹³ By the time of England's strife with its North American colonies in the 1770s, this idea was firmly in place. Colonist reb­els levied war against the king, “though they have no direct design against his person.”⁹⁴