Protecting the Person of the Ruler
Despite this shift in the definition of treason, attacks on the sovereign's person long remained the primary concern. In 1813, the Bavarian penal code's first and worst example of treason was attacks on the “sacred person” of the king.95 The Napoleonic penal code punished attempts on the emperor as parricide.96 England took longer than most to shift attention from ruler to state.97 In 1695, an English statute, passed in reaction to the bloody excesses of recent treason prosecutions, sought to hem in their scope by imposing due-process requirements.
Even it, however, exempted attempts on the king's life.98 A century later, after stones were thrown at George III, treason was specifically defined to include harming, maiming, or wounding the monarch.99 Five years on, after another attack, attempts to assassinate the king were now to count as and be tried in the same less-restrictive manner as murder.100 Two witnesses were no longer needed, making it easier to prosecute. In 1840 and 1842, several would-be assassins attacked Queen Victoria.101 The treason act of 1842 therefore allowed prosecution of violence against the monarch without wheeling out treason's heavy legal machinery, treating such crimes by the laxer standards of conventional murder. The monarch's person could be better protected by making it a crime short of treason merely to bring into her presence firearms or other weapons or even just to alarm her. Easier to prosecute, these offenses also triggered more moderate punishments (transportation, hard labor, flogging, imprisonment) than the death prescribed for treason.102 The 1998 treason act retained compassing the monarch's death (inherited from the statute of 1351) as the only treasonable action directed against his or her person. Attacking the queen would thus be treason only if it was evidence of wanting to kill her.103Although special protection was sometimes still reserved for the head of state, treason's focus was clearly shifting from ruler to state. Nowhere did this transition occur more abruptly than Israel. Importing the English treason act of 1351 largely verbatim in 1943, Palestine under the British Mandate defined treason as “levying war against His Majesty.” When it became a nation in its own right, the Supreme Court redefined the object of solicitude in 1959 to be the State of Israel.104 Elsewhere the change was more gradual. The example of the French revolutionaries' shift from king to state as the protected object shows that ruler and system were being clearly distinguished. In the penal code of 1791, lese-majeste, offense against the monarch, shifted to the newly minted category of crime against the nation, lese-nation. In July 1790, the king—like all his subjects— was made to swear an oath to the nation. His flight to Varennes on 20 June 1791, as he sought to leave his subjects behind, revealed the king as no longer treason's victim but its primary culprit.105 Like Charles I, Louis XVI died on the scaffold, a convicted traitor.
Napoleon backtracked slightly. The penal code of 1810 especially protected the emperor (his murder punished with the extra measures reserved for parricide) and his family (their killing punished as a capital crime), much like the Roman and medieval sover- eigns.106 In the late nineteenth century, the Japanese penal code cast its net even wider. It protected not only the divine emperor and his heirs but also his mother and grandmother, whose role in assuring the regime's continuity had, after all, been fulfilled long ago.107 In Germany, as in Italy and Sweden, insulting the sovereign was still considered an affront to the nation, thus graver than disparaging private citizens.108 Attempts on his life was the penal code's first example of treason.109 The Belgian penal code of 1867 distinguished internal from external security.
Recognizing that the king was not the state itself, though one of its officers, it added another category on crimes against the king and his family.110 In the French Third Republic of the 1870s and then in Germany's Weimar Republic from 1918 to 1933, such feudal echoes dissipated altogether. In matters of personal safety, the president was treated like any other private citizen. Killing him, after all, did not lead to a change in government, merely a new election.111 Fearing unrest, the Social Democratic leaders of the Weimar Republic bucked their party's commitment to abolish capital punishment, mandating it for conspirators who plotted to kill government members.112 By the postwar era, however, the transition was complete. In the German Basic Law (1949), treason laws protected not the ruler and not even the nation but the fundamental political system, the constitutional order.113 The current French penal code makes it treasonous to attack—among other aspects of the very broadly defined “fundamental interests of the nation”—the “republican form of its institutions.”114Born a republic, the United States was reluctant to offer its head of state special protections. Assassinating the president was defined as nothing more than murder unless the killing was part of a plot to aid and abet the nation's enemies.115 A wartime statute in 1917 sought to change direction by outlawing threats against the president.116 After John F. Kennedy's assassination in 1963, it was discovered that although federal law penalized threats against the president and the murder of other national officials, it had overlooked the killing of the president.117 That omission was rectified in 1965, when investigating and prosecuting assassination were centralized in federal hands, though with punishments for it remaining the same as for conventional murder or manslaughter.118