Treason, Treason Felony and Sedition
Nineteenth-century Irish conspiracy cases cannot be considered in isolation from treason, treason felony and sedition. These three offences, classified by current authors as ‘Offences against the State’ or ‘Offences against the Crown and Government’, form the kernel of English political law and, despite their lack of use during the twentieth-century, are the heavy artillery of the penal system. By their very nature they stand against the arguments of those who assert that England has no political offences. In the context of nineteenth-century Ireland, conspiracies against the State were held to amount to overt acts of treason or sedition, and the development of conspiracy law was closely connected with the changing role of these substantive crimes.
i. Treason
Treason, as breach of allegiance to the overlord, was the most serious crime known to the feudal system. In 1351 the Statute of Treasons provided that the common law of treason comprised, inter alia, compassing or imagining (i.e. planning) the death of the sovereign and being adherent to the king’s enemies within the realm. It was held by the courts at an early date that such compassing or imagining must be proved by some ‘overt act’ and that what sort of conduct amounted to an overt act was a question of law for the judges to decide. During the disturbances of the nineteenth-century, both in Ireland and on the mainland, the courts treated the activities of radical movements as treasonable conspiracies. Many of the conspiracy cases cited in Archbold, the leading criminal law and procedure textbook, were decided on the issue of whether the alleged combination was an overt act for the purposes of treason. The crucial significance of this, certainly from the prisoners’ point of view, was that the penalty for treason was, and remains, death. The offence is now almost obsolete – the last trial was that of Joyce – but it remains available to prosecutors who are from time to time urged by politicians to resurrect it.
ii. Treason Felony
Treason Felony originated in 1848 with the Treason Felony Act, passed because ‘the disturbances consequent upon the Continental revolutions of that year were considered to require new legislation.’ The Statute attempted to codify five hundred years of judicial interpretation of the Statute of Treasons. It did not set out to abolish treason itself, but it did provide an alternative to a charge which, if proved, inevitably led to a death sentence – a result which could make juries reluctant to convict. The 1848 Act made unlawful all deliberate expression, by overt act, of an intention to depose of the king, incite invasion of the realm, levy war against the king, or constrain either House of Parliament to change its policy. As with treason, conspiracy was held to be a sufficient ‘overt act’: a bare agreement to commit a treasonable act amounted to treason felony.
iii. Sedition
In 1883 Stephen wrote:
The application of conspiracy to political and especially seditious offences is comparatively modern…it is difficult to say precisely at what period the use of organised voluntary associations for the purpose of attaining political objects first became a marked feature of English life, it is certain that it received a great accession of importance, to say the least, when associations began to be formed for the purpose of procuring changes in the constitution of Parliament and other institutions of the country by constitutional means…in the present day the law as to seditious conspiracy is of greater practical importance than the law of seditious libel. Political combinations are so common, and may become so powerful, that it seems necessary that a serious counterpoise should be provided to the exorbitant influence which in particular circumstances they are capable of exercising.
Sedition is a common law misdemeanour which has never been defined. Essentially, the offence is the publication of words with a seditious intention. The courts have interpreted ‘seditious intention’ to include an intention to excite discontent or dissatisfaction, to excite ill-will between different classes of the sovereign’s subjects, to create public disturbance or civil war, to bring into hatred or contempt the sovereign or government, or the laws or constitution of the realm, to incite unlawful associations or assemblies, insurrections or breaches of the peace, or to use any for of physical force in any public matter connected with the state. The extreme vagueness, coupled with the elasticity of conspiracy charges, indeed provided a ‘serious counterpoise’, as Stephen states, to developing Irish nationalist groups.