Crimes Against The State

From Treason to Terrorism

Michael Head

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317157922
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

In the post-2001 context of economic and political conflict, this book presents a timely and detailed examination of the role of the criminal law in the protection of the existing order from political dissent and destabilization. It reviews offences such as rebellion, treason, mutiny, espionage, sedition, terrorism, riot and unlawful assembly in the UK, US, Canada and Australia from a comparative perspective and investigates leading cases in their historical and political contexts. Also examining the impact on human rights and civil liberties, this book covers a neglected area of English-derived law and will encourage debate about crimes against states and governments.

Chapter 1
A Controversial History

He that addresses himself to a crowded auditory of the poorer class, without employment or occupation, and brooding at the time over their wrongs; whether imaginary or real, will not want ready hearers … (Chief Justice Tindal in R v. Vincent (1842) Car & M 661n)

Chief Justice Tindal’s reference to the ‘poorer class’ provides a clue to the central motivation behind a recurring historical pattern with crimes against the state. He was defining seditious speech. Why should it matter whether the audience of an allegedly seditious address is poor or wealthy? The Chief Justice referred to crowds ‘brooding at the time over their wrongs’. In essence, the concern is that the unemployed and others of the working class – who in the 1840s were demanding, and being denied, the basic right to vote – would be most receptive to anti-establishment appeals. As will be seen, the fear of revolt from below, and ultimately of social revolution, is what has animated the historical development of the law in this sphere. In judicial judgements one finds contemptuous references to the alleged gullibility or stupidity of poorer people. On other occasions, judges have warned that members of the lower classes are particularly susceptible to criticisms of governments and the existing order.

The history of crimes against the state is inglorious. In every epoch, the offences, both common law and statutory, have become more draconian, far-reaching and severely punished whenever the ruling establishment has felt threatened by domestic opposition, particularly from the plebeian masses, or by foreign rivals, especially once war loomed or armed hostilities broke out. Far from being fixed, or clearly defined by legal criteria, offences evolved and sharp shifts occurred in the frequency of prosecution of various offences, in response to perceived political dangers.

Numbers of empirical studies have demonstrated such patterns. One study of the English law from the late eighteenth century to the mid-nineteenth century, for example, detected a marked turn from the use by the authorities of seditious libel to prosecutions for unlawful assembly. The scholar traced this shift to a fear of the rising level of mass political consciousness after the Peterloo Massacre of 1819 and in the development of the Chartist movement, which demanded the right to vote. Michael Lobban concluded:

Until the end of the eighteenth century, when riotous activity was relatively common, the ruling classes were not as frightened of crowds as they would later become—indeed, the idea of national police force scared them more. The fear of the crowd grew as the crowd was seen as a threat to the established order; and paradoxically, this occurred when the crowds were becoming less turbulent, but more organized. The fact that they were political crowds made them a threat: the fact that they might pose a public order threat allowed the authorities to clamp down on them. (Lobban 1990: 352) (italics in original, footnotes removed)

A related trend has been for the authorities to utilise different offences after others have become unusable, commonly for political reasons. An earlier historical study, for example, found that the eighteenth century English reliance on the offence of seditious libel to control the printed press had arisen out of seventeenth century political and legal difficulties in using the laws of treason, heresy, licensing and Scandalum Magnatum. Philip Hamburger sums up the process as follows:

In the mid-sixteenth century, the Crown possessed a wide variety of means for dealing with the printed press, including the laws of treason, Scandalum Magnatum, heresy, and licensing. Legal restraints and public opinion, however, gradually forced the Crown to abandon one method after another until in the late seventeenth century it had great difficulty finding a law with which it could defend itself against printed criticism. The sole remaining law that the Crown could rely upon for prosecuting the printed press was one that during the previous century had not been considered suitable for the purpose. It was, however, the Crown’s only alternative, and, after doctrinal adjustments, it became the chief means of prosecuting the printed press in the eighteenth century. This was the law of seditious libel. (Hamburger 1985: 662–3)

The authorities and the courts have regarded perceived threats to the established order to be far more serious when they (1) involve the working class and (2) call into question the right or ability of the state to mobilise armed force, including the military, to put down civil unrest. As cited above at the beginning of the chapter, Chief Justice Tindal declared that if an audience came from the ‘poorer class’, that could make an otherwise lawful statement a seditious one. His ruling was delivered in the context of the mass trials conducted at the height of the Chartist movement, during which large crowds of people demanded the right to vote (Lobban 1990: 350–1). Similar judicial sentiments were commonly expressed during the trials that followed the 1819 Peterloo Massacre. Instructing the jury in the trial of Henry Hunt and other organisers of the St Peter’s Fields meeting, Justice Bayley said the banners carried by participants, objecting to ‘taxation without representation’ and being ‘sold like slaves’ were evidence of a seditious conspiracy and unlawful assembly. ‘Is the telling a large body of men they are sold like slaves likely to make them satisfied and contented with their situation in society?’ he asked rhetorically (R v. Hunt (1820) 1 St Tr NS, at 479, cited in Lobban 1990: 344).

The aftermath of Peterloo also provided demonstrations of the critical importance attached by judges to punishing any challenge to the authority of the armed forces to intervene violently against popular disturbances. In one trial, Sir Francis Burdett was charged with seditious libel for urging his constituents to join protests against the massacre in St Peter’s Field. Burdett had written to his electors that

They must join the general voice, loudly demanding justice and redress, and head public meetings throughout the United Kingdom to put a stop in its commencement to a reign of terror and of blood. (Lobban 1990: 330)

Justice Best directed the jury that the letter was a libel, for while the government did not rest on the military, where there was an insurrection, soldiers were needed to aid the magistracy. ‘Therefore, at a moment like this, to put them in mind of circumstances likely to paralyse them in the discharge of their duty, is the most dangerous libel that could be circulated’ (R v. Burdett (1820) 1 St Tr NS 1, 55, cited in Lobban 1990: 330).

Scholarly analyses of the history of crimes against the state have generally not identified these recurring patterns, even though numbers of studies have empirically established connections between political imperatives and the evolution of the law in finite periods. An examination of the history, even if only in outline, demonstrates the need for a new systemic method of approach: one that critically examines the changing legal doctrines and their application in the context of socio-economic tensions and conflicts.

This approach is essential to gauge accurately the propensity of the ruling establishments to resort to legal repression in times of turmoil. It provides a reminder that laws such as sedition and treason that may have been little used, or even lain dormant, for decades, can be resuscitated in periods of acute economic, social and political stress. An examination of the historical record also provides an antidote to the views of those who suggest that the public can and should trust governments and security agencies to make decisions about what is necessary to combat ‘terrorism’ or ‘political violence’ or to otherwise protect ‘national security’.

In the early twenty-first century, judicial deference to executive decision-making about national security became almost axiomatic. In A v. Secretary of State for the Home Department ([2005] 2 AC 68), Lord Nicholls of Birkenhead stated: ‘All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice’ ([2005] 2 AC 68 at 128 [79]). Academics, even those with civil libertarian reputations, have similarly expressed faith in governments. As discussed in the Introduction, three Australian academics declared their support for executive power to proscribe organisations as terrorist, even though proscription immediately exposes alleged members (and ‘informal members’) to serious criminal prosecutions. They contended: ‘The executive has greater experience than the judiciary in making policy-based decisions involving such a clear mix of political considerations’ (Lynch, McGarrity and Williams 2009: 23).

History demonstrates, however, that the nature of this ‘experience’ is not one conducive to reliable judgements or to respect for basic legal and democratic rights. On the contrary, the ‘clear mix of political considerations’ has produced no shortage of legally dubious and politically-motivated decisions, including outright abuse of the extensive surveillance, investigatory, detention, prosecution and punitive powers available to the authorities.

This chapter briefly reviews the ancient sources of the law, and then the historical record in Britain and Australia. The following chapter considers the evolution of crimes against the state in the United States, from the American Declaration of Independence to the post-2001 ‘war on terrorism’.

Ancient Origins

Although the history of crimes against the state evidently can be traced back to the early Germanic law of treason, the origins of the modern law can be found in the forms imposed by Rome on the vanquished Germanic peoples (Canada 1986: 3). The more complex and absolutist Roman law, or crimen laesae majestatis, was adopted once the Roman Republic had degenerated into the autocratic Roman Empire. The concept of crimen laesae majestatis corresponded to the requirements of the imperial state, effectively established by the anointment of Augustus as the first emperor (initially known as Princeps or ‘first citizen’) in 27 BC (Gibbon 2003).

The Roman law of treason developed into an extensive doctrine, protecting both the person and authority of the Emperor. It included major offences such as taking up arms against the state, delivering provinces or towns from Roman rule, sedition or insurrection, plotting against the life of the Emperor or his principal officers, and lesser acts such as destroying the statutes of the Emperor or insulting the memory of a deceased Emperor (Canada 1986: 3).

After the fall of Rome, crimen laesae majestatis was lost to the West for hundreds of years. Treason re-emerged initially in feudal clothes, focused on feudal notions of obligation. Early Germanic treasons of assisting the enemies of one’s tribe and betraying one’s lord were revived and modified to cover serious breaches of the vassal’s pledge of fealty. The terms ‘treason’ and ‘sedition’ were used interchangeably, and mere treasonable or seditious words were considered sufficient for punishment. In the feudal system, treason could be committed against one’s lord, regardless of whether he was king, but feudal law also recognised an entitlement of vassals (and lords) to rebel if the lord (or king) persistently denied justice to them (Canada 1986: 4).

Roman legal doctrines were reincarnated in Western Europe after the eleventh century, as power was consolidated in the hands of absolute or near-absolute monarchs. These kings adapted the Roman concept of crimen laesae majestatis for their offences against the state, and in France the outcome was the broad crime of lèse-majesté, which was employed until the French Revolution of 1789 (Canada 1986: 4). This consolidation of socio-economic power found reflections in the writings of the Dominican, St Thomas Aquinas, who contended that subjects were obliged to obey even unjust laws if disobedience would create civil disorder (Wacks 2009: 19).

The English law evolved to protect the king only, not the lesser lords, and included not just acts against him but also endeavouring, plotting or compassing such acts (the general law categories of attempt and conspiracy had not yet developed; in fact they have their origins in the early law of treason, in compassing the king’s death). To assassinate the monarch was considered so serious that even an intent or attempt to kill the king was itself treason (Canada 1986: 4).

While traces of Germanic, feudal and Roman law can be detected in the 1351 Statute of Treasons – the first English codification – it consolidated the transformation of the crime of treason into one against the person and authority of the sovereign, who embodied the state, and abolished the feudal right of the vassal to wage war on an unjust lord. The Statute contained three main offences: (1) compassing the death of the monarch; (2) levying war against the king in his realm; and (3) adhering to the king’s enemies in his realm or elsewhere. The enactment also established various ancillary crimes, such as violating the king’s companion, counterfeiting the king’s seal and killing the chancellor or the king’s justices (Canada 1986: 5).

Over the following centuries, at times of crisis, English monarchs added more detailed and oppressive laws to the Statute. Judicial interpretations also enlarged the legislation. Thus, ‘compassing the king’s death’ was held to apply where the king was in no actual physical danger and included plotting to depose him, conspiring with a foreign prince to levy war on the realm and intending anything that might expose the king to personal danger or deprivation of any authority. ‘Levying war’ was interpreted to cover any amount of violence with a political object, from riot to revolution (Canada 1986: 6)

As the struggle between the emerging capitalist class and the monarchy began to develop in the lead up to the English Revolution of the seventeenth century, sedition arose as a crime distinct from treason. Although a 1275 statute had already codified the offence of defaming public figures through the dissemination of ‘false news’ (scandalum magnatum), the invention of the printing press drove the monarchy’s interest in prohibiting the expression and dissemination of critical ideas (Canada 1986: 6, Hamburger 1985: 662–762, Lobban 1990: 307–14). On behalf of the monarchy, the Star Chamber fashioned the offence of seditious libel as a terrible weapon against the rising parliamentarians, with punishments that could, according to the 1606 case of De Libellis Famosis ((1606) 77 ER 250) include pillory and loss of ears. The notorious Star Chamber asserted its jurisdiction at the expense of the ordinary courts, which resisted the conviction of individuals for disrespectful utterances against the king (Head 1979: 93–5 and Chapter 4). Following the abolition of the Star Chamber by the Long Parliament in 1641, however, the ordinary courts developed the offence further.

A turning point came during the politically fragile years after the 1688 ‘Glorious Revolution’. Anxious to secure its position, the new regime under William III and Mary adopted a harsh policy toward political dissent, and the courts followed suit in 1704 by holding that it was a crime to defame the government, as well as to libel an individual figure associated with the establishment. In effect, in the case of Tutchin ((1704) 91 Eng Rep 1224; 14 St Tr (OS) 1096), the judges reversed a century of common law precedents that confined seditious libel to the defamation of some particular person (Hamburger 1985: 725–53). Defending the ruling, Lord Chief Justice Holt declared:

But this is a very strange doctrine, to say, it is not a libel, reflecting on the Government … If men should not be called to account for possessing the people with an ill opinion of the Government, no Government can subsist; for it is very necessary for every Government, that the people should have a good opinion of it. And nothing can be worse to any Government, than to endeavour to procure animosities as to the management of it. This has always been looked upon as a crime, and no Government can be safe unless it be punished. (90 Eng Rep at 1133–4)

In both its political content (‘it is very necessary for every Government, that the people should have a good opinion of it’) and its vague formulations (‘procure animosities as to the management of it’), Holt’s utterance epitomises the quintessential role of sedition, and indeed, all crimes against the state. The common law, as well as statutory variations, is designed to intimidate and punish any conduct considered to be a threat to the tranquillity of the prevailing political and economic order.

Britain: From the French Revolution to Peterloo

In response to the French Revolution of 1789 and rising demands for political reform in Britain, the authorities responded with political repression, featuring the sedition trials of 1792 and 1793 and the treason trials of 1794. Vigorous political debate had been sparked by the publication in 1790 of Edmund Burke’s Reflections on the Revolution in France. Burke, who had supported the American Revolution of 1776, vehemently condemned the French Revolution and the British radicals who had welcomed its early stages. While the radicals saw the revolution as analogous to the 1688 Glorious Revolution, which had restricted the powers of the monarchy, Burke argued that the appropriate historical analogy was the English Civil War of 1642–51, in which Charles I had been executed in 1649. He declared the French Revolution to be the violent overthrow of a legitimate government. In Reflections he argued that citizens did not have the right to revolt against their government, because civilizations, including governments, are the result of social and political consensus. If a culture’s traditions were challenged, the result would be endless anarchy.

There was an immediate response from the British supporters of the French revolution, most notably Thomas Paine in his Rights of Man. In this heated pamphlet war, writers addressed topics ranging from representative government to human rights and the separation of church and state (Butler 1984, Barrell and Mee 2006: xi-xii). Paine posited that popular political revolution was permissible when a government did not ‘safeguard its people, their natural rights, and their national interests’:

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Rights of Man concluded by proposing practical reformations of English government: a written Constitution composed by a national assembly, in the American mould; the elimination of aristocratic titles, because democracy is incompatible with primogeniture, which leads to the despotism of the family; a national budget without allotted military and war expenses; lower taxes for the poor, and subsidised education for them; and a progressive income tax weighted against wealthy estates to prevent the emergence of a hereditary aristocracy. Paine dedicated Rights of Man to General George Washington and to the Marquis de Lafayette, acknowledging the importance of the American and the French revolutions in his formulating the principles of modern democratic governance.

As a result of the publication of Rights of Man, radical associations began to proliferate. The government issued a royal proclamation against seditious writings in 1792, and there were over 100 prosecutions for sedition in the 1790s alone (Barrell and Mee 2006: xiii). Accompanied by an increasing number of political arrests, government also infiltrated the radical groups; threatened to ‘revoke the licences of publicans who continued to host politicised debating societies and to carry reformist literature’; seized the mail of ‘suspected dissidents’; and supported groups that disrupted radical events and attacked radicals in the press (Keen 1999: 54). Radicals decried ‘the institution of a system of terror, almost as hideous in its features, almost as gigantic in its stature, and infinitely more pernicious in its tendency, than France ever knew’ (Barrell and Mee 2006: xxi).

Paine’s publisher, J.S. Jordan, was indicted for sedition for publishing Rights of Man in May 1792, although Paine himself was not charged until the royal proclamation was promulgated. Even then, ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction: What are ‘Crimes against the State’?
• 1 A Controversial History
• 2 The United States: Free Speech in ‘War’ and ‘Peace’
• 3 Insurrection, Rebellion and Unlawful Associations
• 4 Treason and Mutiny
• 5 Espionage, Official Secrets and Sabotage
• 6 Sedition and Politically Motivated Violence
• 7 Terrorism
• 8 Riot, Affray and Unlawful Assembly
• 9 Emergency Powers, Martial Law and Official Lawlessness
• 10 Conclusions
• Bibliography
• Index