Treason Narrows

Once democratic governance became the norm, treason changed profoundly. Democracies had weaker reason to fear treason than less-legitimated regimes, except as outside attack or a wholescale upheaval from within.

But in the longer duree of modern history, treason fell into dis­use. By the eighteenth century, interest in it was so slight that stan­dard legal texts ceased discussing it in any detail. No other major crime, German observers calculated early in the twentieth century, was committed so infrequently.¹³⁴ Prosecutions occurred mainly in wartime and other crises. The world wars and interwar era saw clashing ideologies demanding ever firmer allegiance and a precari­ous geopolitical balance, with nations fearing attack and invasion. Legislation protecting nation and state unsurprisingly tightened.¹³⁵ In the United States, sedition laws suppressed radical unions during the 1920s.

Once a blunderbuss in the early modern period, modern trea­son narrowed to a few crimes, mostly involving enemy powers and local collaborators. Modern law commonly distinguished between foreign and domestic treason, or what Germans call Landesverrat (treason) and Hochverrat (sedition).¹³⁷ In liberal democracies, trea­son was restricted to a few actions: attacks on public authorities, insubordination in the military, sabotage, and more generally the aiding and abetting of the enemy. The external aspects of treason included obvious instances of assisting foreign enemies: committing espionage, serving in their military, admitting them illegally into the national territory. The presumption was that in democracies both government and citizens opposed the enemy.

In contrast, modern democracies deal with sedition, the domes­tic aspects of treason, in two ways. Much of what would earlier have counted as seditious is now accepted criticism and dissent and thus something the modern state must tolerate. But not all. Democratic systems that otherwise regard freedom of speech as foundational have also been quick to punish when matters stray onto treason's turf. Regarding words as treasonable acts in their own right stands in a long tradition. Following Roman law, with its emphasis on sedition and disloyal thoughts, the English treason act of 1351 expanded treason to include compassing or imagining the death of the king—a purely internal event perceptible only to traitors them­selves and perhaps to God. How then to know whether someone was guilty? Two centuries later, under Henry VIII in the treason act of 1534 the offense was broadened to include attempts to imperil the king's person, accomplished by writing or a similar manifest act.

Courts came to accept spoken or written words alone as overt acts proving treason. In one extreme example from 1460, a tav­ern owner was convicted for promising to make his son, should he behave, heir to the throne.¹³⁹ During the French Revolution, about a third of the many thousands executed died merely because of what they had said or written.¹⁴⁰ The American Founding Fathers avoided making mere expression treasonable, but state statutes considered allegiance uttered to the English king treasonous.¹⁴¹ A US statute of 1917 protecting the president from threats crimi­nalized verbal attacks on his person, thereby sanctioning speech,

and criticism of conscription was punished during World War I. In cases during World War II, propaganda was accepted as action and thus potentially treasonous.¹⁴² To prevent overreach, courts sought to distinguish between true threats and mere hyperbole. Yet even those who made conditional threats in private were indicted.¹⁴³ On the whole, however, free-speech protections encouraged the state to accept that criticisms, even ones like those once considered treason­ous, were the price of democracy. The authorities worried less about the content of utterances and more about whether they sought to undermine public order. Criticism was fine, riot not.¹⁴⁴

Prosecutions of overt treason were reined in. But the modern dem­ocratic state also redirected its powers into other channels, retaining its defensive capacities in new guises. Treason laws were no longer the only or even the main bulwark against the state's enemies. It now deployed new potential charges. Since these charges were not sub­ject to treason's procedural restrictions, through them the authori­ties in fact had greater leeway. Following the US Civil War, no one was prosecuted for treason, but laws regarding other, newly defined crimes now punished much the same acts.

Britain invented the crime of treason-felony in 1848 to prose­cute those whose actions earlier would have required accusations of sedition.¹⁵⁰ During World War II, the new felony offense of treachery allowed pursuit of espionage and disloyalty without treason's cum­bersome rules of evidence and procedure.¹⁵¹ The French penal code of 1994 devoted an entire book to the grandiosely named crimes and misdemeanors against the nation, the state, and the public peace. The book defines treason in 10 articles and then proceeds to another 227 distinct articles, many covering several different acts.¹⁵²

Modern states also turned to practical techniques to protect themselves. No-go zones from which civilians were excluded or for­bidden to photograph became common.¹⁵³ Although modern lead­ers may no longer be protected by as many laws, they have become far more insulated from their constituents, making them physically harder to harm. They are assassinated most often at stopping points during travel, including parades.¹⁵⁴ Modern weaponry has in effect banished leaders from the open air.

The rough and tumble that leaders were once expected to endure astonishes the modern mind. The same day in 1800 that James Hadfield tried to assassinate George III in the Drury Lane Theater, the king had earlier been the object of a near-miss shooting dur­ing a Grenadier Battalion field exercise in Hyde Park. That same evening, on the way back from the theater, George was pursued by an angry mob, which dispersed only when the Bow Street offi­cers made arrests.¹⁵⁶ Security precautions were laughable by mod­ern standards. In 1840, a drunk wandered into the White House to spend the night unnoticed. John Wilkes Booth shot President Abraham Lincoln while the police officer assigned to his theater box was drinking in a nearby bar.¹⁵⁷ After an unsuccessful attempt on President Andrew Jackson's life in 1835, the would-be assassin was released on (an increased amount of) bail since there had been no actual battery.¹⁵⁸ The French king Louis-Philippe was the object of seven assassination attempts between the autumn of 1834 and the following summer.¹⁵⁹ When Queen Victoria was shot at in her carriage in 1842 and the assailant escaped, she and Albert were sent down the same route the next day (at a slightly faster pace) to flush out the would-be assassin.¹⁶⁰ Though he was indeed arrested on the second attempt, it seems highly unlikely that modern leaders would thus be treated like tethered goats—nor does a body dou­ble seem to have occurred to the Victorian imagination. Victoria's reign was long, but the eight attempts on her life put to shame what modern leaders are expected to endure. In the spring of 1878, Kaiser Wilhelm I survived two assassination attempts within three weeks, both on the same boulevard, Unter den Linden.

A logically unstable concept, treason has undergone two divergent developments. As the state increasingly came to serve the people as the ultimate sovereign, treason largely dissipated. Regime change no longer involved switches among ruling dynasties, who sought to bolster their own legitimacy by wielding treason laws against their enemies, only to have the same eventually done to them. In a popularly legitimated system, treason was almost self-contradictory. As an offense, it continued as a pale vestige of its former self, largely reduced to collaboration with external enemies. What had once been the worst possible crime, one the state expended its main efforts suppressing, had largely vanished by the nineteenth century. But the state's repressive machinery against those who would threaten its stability or harm its leaders took new forms. The modern state relinquished treason law as an arrow in its quiver not because it was weak but because it was too strong and all-controlling to need it any longer.