Introduction

The historians who in the last century and a half have addressed themselves to studying the complex Tudor law of treason and how it operated have been few in number although there has been a large amount of writing concerned with the political, religious and economic features of the many conspiracies, insurrections and traitorous expressions of dissent occurring in that period. Only with J.F. Stephen's ‘History of the Criminal Law of England’ published in 1883 was there a serious attempt to break away from reliance on the writings of Coke and Hale and to place the law of treason in a proper historical setting, albeit in a way which was extremely rudimentary. ⁽¹⁾ In regard to the scope of the treason law the important issue for Stephen was why the act of 1352 was found insufficient in the years 1533–1603 and how it was supplemented. He divided the treason legislation of Henry VIII's reign into those acts aimed at securing this ‘great religious and political revolution’ by maintaining the king's position against the pope and the statutes that were intended to protect the king's plans for the succession. Rightly he fixed on the use made of the treason act of 1352 from the Henrician reformation to the death of Elizabeth, drawing attention to periods when he thought the statute was interpreted narrowly and others when it seemed a wider interpretation prevailed. The former he identified with the later years of Henry VIII, the latter with the reign of Elizabeth. Stephen was acute enough to notice how unsatisfactory were the comments of Coke and Hale on conspiracy to levy war. He pointed out that the act of 1352 omitted the offence, and argued that the defect could only be remedied by special legislation. He also drew attention to the medieval statute's failure to make treason out of forming an intent to depose or incapacitate the king. In his comments on the scope of treason Stephen was in fact doing little more than reviewing critically the writings of famous law treatise writers of earlier centuries, relying for the most part on his professional knowledge as a judge. The same is largely true of his treatment of treason trials, although there he did utilize printed extracts of the arraignments of some of the more famous sixteenth-century traitors and Cobbett's ‘State Trials’. ⁽²⁾ If the materials were thin, Stephen's comments were shrewd and indeed seminal. In only a few lines he got close to the heart of the Tudor treason trial, an achievement which, considering the lack of historical research to that time, was quite remarkable.