Marvel 1602 & Treason in the Common Law World

Neil Gaiman is one of those authors who is great at taking an everyday concept like history or religion and turning it into a fantastic romp of thought provoking fiction. American Gods, the story of America’s antiquated religious traditions, remains one of my favourite novels and we recently heard some great news from New York Comic Con about reprints of Gaiman's time on Marvelman. Recently, I got around to reading Gaiman’s Marvel 1602, an eight issue mini-series published in 2003 and 2004 that takes the mainstay characters of the Marvel Universe and drops them into Tudor-Stuart Britain and America. 

Cover of Marvel 1602 #1 (November 2003) Written by Neil Gaiman, art by Andy Kubert, digital printing by Richard Isanove, letters by Todd Klien, cover by Scott McKowen and edited by Joe Quesada.

One of the key plot points of Marvel 1602 revolves around the well known yet little understood crime of treason. Set against a tumultuous transitional period -- one which saw the end of the last Tudor, Queen Elizabeth I and the first Stuart, King James I (VI of Scotland) -- the story captures the religious, political and dynastic turmoil of early modern Britain very well. Because Elizabeth’s forty-four years as the Queen of England did not result in an immediate heir to her throne, the kingdom of England was inherited by the next in line, Elizabeth's first cousin once removed James Stuart, King of Scotland. Upon Elizabeth's death in 1603, England and Scotland entered into what is called a “personal union” with both countries sharing the same monarch, yet maintaining separate parliaments, judges, laws, etc. Because England was much bigger than Scotland, as soon as he was declared king, James moved south to reign in London. 

Counsel to Queen Elizabeth I in Marvel 1603 include Sir Nick Fury and Dr. Strange. Image from Marvel 1603 #1 (November 2003)

But even before the new king arrived in London he set about making a mark on his new country. For example, as he travelled south he named knights along the route to London, and in one instance extra-judicially executed an alleged thief who had been hounding the royal procession along the route. This was disconcerting for many in the English political and legal establishment, but the example of Sir Walter Raleigh, a one time favourite of Queen Elizabeth and someone who Sir Nick Fury appears to be a surrogate for in Marvel 1602, quickly convinced them to keep their mouths shut. The most serious crime alleged against Sir Walter was treason. 

Sir Nick and Queen Elizabeth I in Marvel 1602 #3 (January 2004)

Raleigh’s trial saw the prosecution use hearsay evidence and judges who were plainly on the side of the Crown. The case itself was led by Attorney-General of England Sir Edward Coke, but uncharacteristic to Coke's stellar judicial work years later, the trial involved procedural irregularities that would only be found in the most backward and rule-of-law deprived states of today. The treason alleged in this case involved Sir Walter's supposed involvement to replace the Scottish king with his cousin Lady Arbella Stuart. The word treason comes from the Latin trāditiōn or trāditiō meaning "a handing over or betrayal" and is an ancient crime involving disloyalty to the monarch and state. In the common law world it was first codified by the English parliament in the Treason Act 1351 with the law distinguishing between two forms of the crime: High Treason, which involved various forms of disloyalty to the Sovereign and Petty Treason (which will not be discussed beyond this point) which involved disloyally towards a Lord, employer, etc. The biggest difference between the two was that High Treason meant a death sentence with hanging, drawing and quartering for a man or the burning at the stake for a woman. 

Crimes against the king were considered as equal as a crime against the state in early modern Britain. The essence of that still survives in the treason laws of today. Image from Marvel 1603 #5 (March 2004).

The Treason Act of 1351 enumerated treason as working towards the death of the sovereign or members of the sovereign's immediate family; levying war against the sovereign in the realm; joining with the sovereign's enemies or giving them aid and comfort; and killing senior public servants or justices. Perhaps the most striking pillar of early High Treason was that it was also illegal to have sexual relations with the sovereign’s immediate family, thereby contaminating the royal bloodline. One hundred and seventy odd years later, the framers of the United States constitution -- undoubtedly cognizant of their revolutionary origins -- mentioned treason by name in Section 3 of Article 3 of that document, the only crime given that honour. Naturally, the founders of the young republic omitted the bit about having sex with the president's family. It read: 

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. 

Currently, treason can be found in Section 80.1 of the Criminal Code Act 1995 in Australia, Section 46 of the Criminal Code of Canada, and in the Treason Felony Act 1848 of United Kingdom. In all of these constitutional monarchies one of the key themes of the crime is that it's against the Queen and country and manifested in some type of revolutionary activity. This is what differentiates treason from crimes such as murder which while running counter to laws passed in the name of the monarch and prosecuted in her name (as in Regina v Smith) it is never-the-less not against her per se and therefore not treason.    

Behold the Traitors' Gate of the infamous Tower of London on the River Thames! Originally built as a palace for the Norman kings, it eventually became the a prison for the monarch's enemies.

And in modern democracies where people are free to vote against their government; protest the wars in which their countries participate, or even argue that the President of the United States is ineligible to hold his office, creates a situation where treason cases are exceedingly rare. The last treason trial in the United Kingdom was in 1946 and the last Canadian treason trial was in 1947; both of which had to do with activities in the Second World War. However, in the United States, treason has made a come-back with the Department of Justice recently issuing an indictment for one Adam Gadahn, an alleged American-born Al-Qaeda operative. He is currently at large, so we will have to wait to see what happens at any trial, but it will never-the-less be interesting.