The Law and Economics of High Treason in England from Its Feudal Origin to the Early Seventeenth Century

View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by ValpoScholar Valparaiso University Law Review Volume 22 Number 1 Fall 1987 pp.81-108 Fall 1987 The Law and Economics of High Treason in England from its Feudal Origin to the Early Seventeenth Century Frank W. Harris Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Frank W. Harris, The Law and Economics of High Treason in England from its Feudal Origin to the Early Seventeenth Century, 22 Val. U. L. Rev. 81 (1987). Available at: https://scholar.valpo.edu/vulr/vol22/iss1/8 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Harris: The Law and Economics of High Treason in England from its Feudal Origin to the Early Seventeenth Century THE LAW AND ECONOMICS OF HIGH TREASON IN ENGLAND FROM ITS FEUDAL ORIGIN TO THE EARLY SEVENTEENTH CENTURY FRANK W. HARRIS* Placed in the context of its historical setting between the Norman Con- quest of the eleventh century and the advent of the modern age, what fol- lows is a study of treason in England based on the relationship between law and economics. The treason dealt with is high treason, that which was directed against the king as sovereign. The adjective "high" generally will be deleted, but should remain understood. Except in passing, the other forms of treason (petit or petty treason and misprision of treason) will not be treated.' General conclusions are made as warranted by the evidence; conclusions which will be made more compelling or even be overcome as further research is made based on the extant public, local, and family records. En- quiry that looks solely into relevant case materials will not suffice if the interdependence between the law and economics of treason is to be more fully, if not completely, understood. I. TREASON: THE CONTRACTUAL SETTING The law of treason that developed in England grew out of the feudal relationship between the king as sovereign and lord paramount of the realm and the populace as vassals and subjects thereof. The origin of this relationship can be traced to a number of disparate sources which pre-date the * F.W. Harris is an Assistant District Attorney, Nassau County, New York. The author wishes to express his gratitude to Dr. Paul H. Brietzke, Professor of Law in the School of Law, Valparaiso University, for his helpful advice and assistance in the prepara- tion of this paper. The errors and shortcomings that remain are solely the responsibility of the author. I. See infra note 25. While the non-specialist might recognize the names of Thomas More and Mary Queen of Scots, reference to less well known individuals has as its purpose the giving of personality and humanity to the otherwise stark and cold events by pointing out that it was truly real people who were involved. Reference to individuals such as Augustine Webster and William Freeman is thus intended by way of example. Produced by The Berkeley Electronic Press, 1987 Valparaiso University Law Review, Vol. 22, No. 1 [1987], Art. 8 82 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 22 Norman Conquest of 1066.2 The first of these was the Germanic comitatus which was based on the comradeship between warriors, the brotherhood of the battlefield, as cen- tered upon the comites (companions) of the princeps (warrior chieftain).' The obligation of the chief was to provide leadership, victory, and spoils. In return, he was to receive the chief's share and the rights and privileges of office. The band of companions ("comes" would become "count" in the me- dieval feudal hierarchy) gave loyal service in following the commands of the chief. The relationship, though largely tacit, retained a certain formality which provided for mutuality of obligation and satisfaction. Implied in the fulfillment of satisfaction was the requirement of obligation, for without the latter the former would not have been achieved.' The second source was the Roman commendation of the later empire. Roman commendation was initially based on a relationship of clientage between a freeman who received economic assistance and protection and a wealthy patron who received personal service from the freeman in return. For the free client and the patron, the satisfaction of the former and the profit of the latter depended on their maximization of resources. Thus, for the patron to receive the freeman's service, the patron had first to see to the freeman's assistance and protection;' for the freeman to receive economic assistance and protection, he was required to perform service for the patron. The value of the one was thereby directed to the marginal benefit of the other. The interdependence of client and patron required a greater formality than did that of the comites and princeps, though even here some aspects of the relationship might remain implied.6 It has been found that, in the last 2. See generally J. BELLAMY, THE LAW OF TREASON IN ENGLAND IN THE LATER MIDDLE AGES ch. I (1970) [hereinafter BELLAMY, TREASON IN ENGLAND]; also the materials cited therein. 3. The terms were used by Tacitus in GERMANIA, and are thus Latin in origin, and therefore date to at least the late first century A.D. See also the relationship as depicted in such Anglo-Saxon epics as BEOWULF and SONG OF MALDON and the Continental SONG OF ROLAND. For the difficulties presented by the "[unlsettled and [un]stable scheme of technical terms" in use in England following the Norman Conquest, with words having English, Danish, Latin, or French origin, see F.W. MAITLAND, DOMESDAY BOOK AND BEYOND 8 (1897 & re- print 1966) [hereinafter MAITLAND, DOMESDAY]. 4. Compare the analysis of a more recent time in Anderson & Hill, The Evolution of Property Rights: A Study of the American West, 18 J.L. & ECON. 163 (1975). 5. As the patron accumulated increasing numbers of clients, so too would he acquire by those numbers greater ability to perform their protection. The more clients commended themselves to a patron, the greater that patron's power; the greater his power, the more protection he could give; and thus more clients, seeking to be protected, would commend themselves to his care. 6. Compare, Anderson & Hill, supra note 4, at 163. https://scholar.valpo.edu/vulr/vol22/iss1/8 Harris: The Law and Economics of High Treason in England from its Feudal Origin to the Early Seventeenth Century 19871 HIGH TREASON IN ENGLAND years before the fall of Rome, it was generally out of desperation that free- holders sought the protection of some powerful person. In light of the theo- rem developed by R.H. Coase,7 that the parties will bribe one another as a means of maximizing efficiency, it may be of some interest to note that villagers often bribed the provincial dux to place troops in their village to protect them from the imperial tax collector. Furthermore, if suit were brought, it was claimed by the ducal court which invariably found for the villagers.' What began as an attempt by the client to obtain maximization of security through protection of life and economic well-being ended up as a contract through which that security and protection were obtained in ex- change for a surrender to the patron of certain rights. In time, the relationship between the parties would give way to status so that a hierarchy was created in which the individual clients had placed themselves into vassalage, or even villeinage or serfdom, while the patrons had become the nobility or hereditary lords of European feudalism. When the Anglo-Saxons invaded England they brought with them their customs and practices, and thus the comitatus. When the Normans arrived, some six centuries later, they found the practice of commendation, whereby "smaller landowners had placed themselves in a relation of depen- dence on superior lords," 10 deeply entrenched in Anglo-Saxon society.1 But while the roots of the relationship upon which treason was to be based can be traced to both the comitatus and commendation, it was brought to a higher level of development under Carolingian vassalage which, in its most essential form, was a contract or personal bond sworn to by the participants. Successors to the Merovingian line of kings of the Franks and named after Charlemagne (768-814), the Carolingians perfected the contractual aspects of vassalage by emphasizing its personal character. In return for a 7. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960), reprinted in Eco- NOMIC FOUNDATIONS OF PROPERTY LAW 17 (B. Ackerman ed. 1975). 8. 2 A.H.M. JONES, THE LATER ROMAN EMPIRE 775-78 (1964). See also A. JONES, THE DECLINE OF THE ANCIENT WORLD 291-92 (1966). 9. See J.S. MILL, UTILITARIANISM ch. 5 (1863), reprinted in THE GREAT LEGAL PHI- LOSOPHERS 365, 375 (C. Morris ed. 1959). For a proposed connection between "contractual thought" and "fundamental law," as well as between "fundamental law" and its development (at least in meaning) into "constitutional law," see Thompson, The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution, 91 AM. HIST. REV. 1103 (1986). 10. F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 148-50 (H. Fisher ed. 1965) [hereinafter MAITLAND, CONSTITUTIONAL HISTORY). See also W. STUBBS, THE CONSTITUTIONAL HISTORY OF ENGLAND 71 (J.

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