The year 1352 saw the enacting of the Statute of Treasons, a
truly significant legislative act that has long drawn the attention of constitutional
and legal historians. The Statute (25 Edward III, st. 5, c. 2) was ground-breaking
in providing a definition of treason, which prevented the abuse of the worryingly
wide – and previously undefined – scope of treason charges that had been
conspicuous in the political turmoil of the early 1300s. The classic example of
this vague ‘accroaching on the royal power’ came in 1347, when Sir John
Gerberge committed what was essentially a standard case of armed highway
robbery and found himself accused of treason. Such arbitrary accusations formed
a worrying precedent which was largely resolved by the 1352 Statute, which set
strict limits on the crimes which could be considered high treason.[1]
Indeed, the statute specifically states that it was not intended that those –
like Gerberge – who rode armed with the intentions of robbery should be charged
with treason. Historians concerned with the Statute have largely concentrated
on two issues. The first is the motivation behind the creation of this piece of
legislation, with differing opinions on whether the Statute was motivated
primarily by a legalistic concern[2]
- to clarify and differentiate between treason and forfeiture (and so to
clarify the law regarding property) – or by political considerations revolving
around the wishes of the magnates to protect themselves against the risk of arbitrary
forfeiture by the king.[3]
The second issue has been the restriction of the Statute on the power to create
new interpretations of treason, which was placed firmly under the jurisdiction
of the king in parliament, and as such had significant repercussions for the
seventeenth century.[4]
So far, so good; important elements of the 1352 Statute and
the preceding state of the treason law have received distinguished treatment. There
is, however, an aspect of the treason law as codified in the 1352 Statute that, perhaps being overshadowed by the novelty of the statute and its constitutional
implications, has not received a great deal of attention. This is the inclusion
of counterfeiting the king’s great or privy seal in the crimes to be judged as
high treason. As mentioned above, most scholarly articles are concerned with
different aspects of the law of treason, and J. G. Bellamy’s book on the
subject simply notes that, since any tampering with the king’s seal had always
been considered treason, the inclusion of this matter is only to be expected, without elaborating further.[5]
As Bellamy (very) briefly demonstrates in his pre-1352 analysis of the medieval
concept of treason, the counterfeiting of the king’s seal had long been
considered a treasonous activity. Counterfeiting the king’s image had been held
a crime of laesae majestatis since
Roman times, and this Roman Law influence was specifically articulated in both
Glanville and Bracton, and appears in later works of Fleta and Britton. Furthermore,
concerns about the counterfeiting of seals were not just academic. Forgery was
a real and serious issue and as such a significant amount of energy and
resources were spent on punishing offenders. In November 1336, for example,
Hugh Courtenay, earl of Devon, was issued a letter close telling him that a
certain John of Norwich had been arrested for possessing ‘certain false and forged commissions under the great
seal and others under the counterfeit privy seal’ and that, with the
relevant commission having been inspected by the king and his council, he
should review the commissions himself and have John drawn and hanged.[6]
As Bellamy’s demonstration is not accompanied by an explanation of just why forgery was such a consistent and
prominent issue, it may be interesting and useful to speculate on the possible
reasons for the incorporation of counterfeiting the royal seal into the highest
category of criminal law.[7]
At first sight, the immediate reasons for the association of
forgery with crimen laesae majestatis would
seem to be practical. The use of false seals on forged charters would threaten the
security of that most prevalent concern of the late medieval landowner, the successful
seisin of his or her landed property. The potential for forged documents sealed
with forged seals to influence property settlements is at once obvious and
important. An equally practical concern, although this time solely of the central
government, would be loss of revenue at the hanaper. A person wishing to have a
charter or letter of some kind sealed with the great seal would usually have to
pay for the privilege, and these payments were considerable by the time of
Edward III, with the sealing of a charter costing at least 16s 4d, and original
writs – frequently used as the basis of the common law – costing 6d each.[8]
The use of false seals would, of course, deprive the crown of this revenue.
There can be little doubt, then, that practical concerns
played a part in the association of counterfeiting the royal seals and the law
of treason. However, many crimes threatened property rights and diminished
royal revenues but were not to be considered treason. Another – less tangible –
issue may help to explain why the medieval mind considered counterfeiting such
a heinous crime. For most people royal authority was experienced through the
image of the king. The primary media of this image was not the actual
witnessing of the kings person while he travelled with his household or held a
tournament but came rather through exposure to royal letters and charters –
sealed, of course, with royal seals. Michael Clanchy has estimated that by the
fourteenth century the system of royal writs had penetrated ‘to every village’.[9]
This structure of visualised government has not received the attention it
deserves.[10] Most
people inhabiting the political community of the English polity would never meet
the king but they would have had exposure to the image of his royal majesty as
portrayed by his seal. The dissemination of written royal instruments comprised
the mechanism by which government was conducted throughout the realm: people
literally saw royal authority in
these documents. It is within this context that we must see the association of
counterfeiting with treason as codified in the 1352 Statute: the forging of the
royal seal would be a direct perversion of the written royal authority that represented
the king’s will. Crimes involving counterfeiting would upset the orientation of
the body politic by usurping royal authority and channelling that ‘public’
authority in the interests of a private individual whose concern was probably
to harm a member of the community of the realm. As such, the forgery of the
royal seals could not be anything other than a crime that warranted a punishment of utmost severity.
Perhaps, then, we may conclude with a plea for the recognition that the
inclusion of counterfeiting in medieval notions of treason is more important
than has previously been recognised, providing an indication as it does to the
working of the late medieval polity and to the experience of government within
this polity. Such recognition would seem to be overdue.
[1] Select Documents of English Constitutional
History, 1307-1485, ed. S.B. Chrimes and A.L. Brown (London, 1961), pp.
76-7; W.M. Ormrod, Edward III (London,
2011), p. 364.
[2] I.D.
Thornley, ‘The Act of Treasons of 1352’, History,
6 (1921), pp. 106-8; J.G. Bellamy, The
Law of Treason in England in the Later Middle Ages (Cambridge, 1970), p. 92.
[3] Most
forcefully articulated by M.V. Clarke in her Fourteenth Century Studies, ed. L.S. Sutherland and M. McKisack
(Oxford, 1937), p. 132.
[4] S.
Rezneck, ‘The Early History of the Parliamentary Declaration of Treason’, English Historical Review, 42 (1927),
pp. 497-513.
[5]
Bellamy, The Law of Treason, p. 85.
[6] CCR 1333-1337, pp. 721-2.
[7] The
discussion below excludes coins. This is because there are obvious fiscal
reasons for prohibiting the clipping of coins etc. that do not apply to the
counterfeiting of royal seals. It should be noted, however, that as coins bore
the image of the king the conclusions of this piece also apply in part to the
inclusion of articles relating to the coinage in the 1352 statute and in
treason law generally.
[8] B.
Wilkinson, The Chancery under Edward III
(Manchester, 1929), pp. 59-60.
[9] M.T.
Clanchy, From Memory to Written Record:
England 1066-1307, Second Edition (Oxford, 1993), p. 53.
[10] Although
John Watts has examined the visibility of state
apparatus in his ‘Looking for the State in Later Medieval England’,
in P. Coss and M. Keen (eds)., Heraldry,
Pageantry and Social Display in Medieval England (Woodbridge, 2002), pp.
243-269, his definition of state does not include strictly royal media like seals. ‘Seeing authority’ has received more
attention in the early modern period, in particular in the work of K. Sharpe. Unfortunately,
while Sharpe recognises the importance of imagery on seals, the subject
receives far less attention than it merits. See K. Sharpe, Selling the Tudor Monarchy: Authority and Image in Sixteenth-Century
England (London, 2009), p. 152. It is revealing that Sharpe highlights the
1536 Statute of Treasons, which included the same prohibitions on forgery of
seals as the 1352 Statute, as investing the royal writ with ‘an almost
spiritual quality’ (p. 87). On the basis of the discussion in this piece, we
should predate this statement to a far earlier period and see the 1536 Statute
as confirming an existing situation rather than being innovatory in this
respect.
