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CHAPTER XXXI.

MISCELLANEOUS OFFENCES.

I HAVE now gone through all the principal classes of offences which have a history of their own worth relating. There are many other offences of which it would not be worth while to relate the history, but there are some actions the treatment of which as crimes is of interest because it throws light on different historical events, and on the feelings which prevailed at particular periods of our history. To some of these I will refer in the present chapter. Those which I shall mention are the following, arranged in the order of the date of the times when they were first treated as crimes: maintenance, perjury, slave trading, interference in hostilities between foreigners, bribery.

MAINTENANCE.-The crime of maintenance may be described in general terms as consisting in interfering `with the due course of justice. Its more 1technical definition is narrower though exceedingly vague. It has been the subject of a number of statutes which are still in force, though no prosecution for the offence has taken place within living memory. By the 3 Edw. 1, c. 28 (1275), it is provided "qe nul clerk de justice ne de visconte ne meintenge parties en quereles." The 13 Edw. 1, c. 49 (1285), is similar. The statute or "ordinance concerning conspirators" (33 Edw. 1, 1305) throws light on the same subject. Conspirators be "they that do confeder or bind themselves by oath, covenant

1 See my Digest, art. 141. "Maintenance is the act of assisting the plaintiff in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he acts from any improper motive." See too Appendix, note viii. p. 346.

or other alliance, that every of them shall aid and bear the CH. XXXI. "other falsely and maliciously to indite or cause to indite or

falsely to move or maintain pleas; and also such as cause children within age to appeal men of felony whereby they are imprisoned and sore grieved, and such as return men in "the country with liveries or fees for to maintain their "malicious enterprises, and this extendeth as well to the "takers as to the givers; and stewards and bailiffs of great "lords which by their seigniory office or power undertake to "bear or maintain quarrels, pleas, or debates, that concern "other parties than such as touch the estate of their lords or "themselves." The statute 1 Edw. 3, s. 2, c. 14 (1326), hints at least by its recitals at the nature of the offence: Because the king desireth that common right be adminis"tered to all persons, as well poor as rich, he commandeth " and defendeth that none of his counsellors nor of his house, nor none other of his ministers, nor no great man of the "realm by himself nor by other, by wording of letters, nor otherwise, nor none other in this land, great nor small, shall "take upon them to maintain quarrels nor parties in the country to the let or disturbance of the common law." The statute 4 Edw. 3, c. 11 (1330) also throws some light on the subject. "Where in times past divers people of the realm, as well great men as other, have made alliances confederacies and conspiracies to maintain parties, pleas, and quarrels, whereby divers have been wrongfully disinherited, " and some ransomed and destroyed, and some, for fear to be "maimed and beaten, durst not sue for their right nor complain, nor the jurors of inquests give their verdicts, to the great hurt of the people and ['slander] of the law and common right" the justices are to "inquire, bear, and "determine of such maintainers, bearers, and conspirators."

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The provisions of this last statute are substantially repeated by 20 Edw. 3, c. 4 (1346) entitled "Ordinance for "the justices." In 1377 it was enacted by 1 Rich. 2, c. 4, that none of the king's "counsellors, officers or servants, nor 66 any other person within the realm of England, of whatsoever "estate or condition they be, shall from henceforth take

1 See in Revised Statutes.

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nor sustain any quarrel by maintenance in the country "nor elsewhere upon a grievous pain." It was thought necessary to confirm this act in 1383 by 7 Rich. 2, c. 15.

Another set of statutes were passed in the reign of Richard II. closely connected with the statutes against maintenance. These were the statutes of liveries. The first of these was 1 Rich. 2, c. 7 (1377). It recites that "divers

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people of small revenue of land rent or other possessions "do make great retinue of people, as well of esquires as "of other, in many parts of the realm, giving to them hats "and other liveries, of one suit by year, taking of them "the value of the same livery or percase the double value by such covenant and assurance that every of them shall "maintain other in all quarrels, be they reasonable or un"reasonable, to the great mischief and oppression of the "people." It then enacts that "henceforth no such livery be given to any man for maintenance of quarrels or other confederacies upon pain of imprisonment and grievous "forfeiture to the king, and the justices of assize shall dili"gently inquire of all them that gather them together in fraternities by such livery to do maintenance." In 1392 it was enacted by 16 Rich. 2, c. 4, that no yeoman nor "other of lower estate than an esquire from henceforth shall "not use or bear no livery called livery of company of any lord within the realm if he be not menial and familiar, continually dwelling in the house of his said lord," and in 1396 these statutes were affirmed by 20 Rich. 2, c. 1. This act also confirmed the statute of Northampton (2 Edw. 3, c. 3, 1328), which enacted that no one should go armed except on certain specified occasions.

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The state of society to which these laws applied is fully described in one of the most interesting passages in Mr. Stubbs's 'Constitutional History. "The English of the middle "ages," he says (I have no doubt with perfect truth), “were "an extremely litigious people." A man who wished to maintain his own rights or attack his "neighbours could "secure the advocacy of a baron, who could and would

1 Vol. iii. pp. 532-540.

STATE OF SOCIETY FAVOURABLE TO MAINTENANCE.

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"maintain his cause for him, on the understanding that he CH. XXXI. "had the rights of a patron over his clients." This led, amongst other consequences, to "the gathering round the "lord's household of a swarm of armed retainers, whom the lord could not control, and whom he considered himself "bound to protect." This state of things gave the utmost importance to livery. Heraldry was, under Edward III., at its height, as appears from the institution of the Order of the Garter. Less eminent persons followed the king's example by giving badges and liveries, and different kinds of livery were distinguished as livery of company and 1livery of cloth. Mr. Stubbs 2 observes, " Viewed as a social rather "than a legal point, whether as a link between malefactors "and their patrons, a distinctive uniform of great households,

a means of blunting the edge of the law or of perverting "the administration of justice in the courts, as an honorary "distinction fraught with all the jealousies of petty ambition, as an underhand way of enlisting bodies of unscrupulous "retainers, or as an invidious privilege exercised by the lords "under the shadow of law or in despite of law,—the custom "of livery forms an important element among the disrup"tive tendencies of the later middle ages." 3 Mr. Stubbs proceeds to show how the social arrangements of this period rendered maintenance easy and formidable. "In their great "fortified houses the barons kept up an enormous retinue "of officers and servants arranged in well distinguished "grades, provided with regular allowances of food and clothing, and subjected to strict rules of conduct and account. A powerful earl like the Percy, or a duke like the Stafford, was scarcely less than a king in authority, and much more "than a king in wealth and splendour within his own house.

The economy of a house like Alnwick or Fotheringay was "perhaps more like that of a modern college than that of

1 As a strange instance of the persistence of old customs, I may observe that the Recorder of London still receives-at least the late Recorder, Mr. Russell Gurney, received-from the Corporation of London a certain quantity of scarlet cloth annually, a privilege expressly reserved by 8 Hen. 6, c. 4. See Stubbs's Constitutional History, iii. 535, for a summary of the statutes. 2 Constitutional History, iii. p. 536.

3 Ib. vol. iii. pp. 539-541.

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'any private house at the present day." The lord had his council, his legal advisers, his domestic officers, his exchequer, his retainers. His house was a school for the sons of neighbouring knights and squires, who were themselves frequently bound by express agreements to serve him. They were thus kings, and had courts on a small scale. So long as all these little kingdoms were well and virtuously ruled, they secured to the age in which they existed many social advantages which are altogether wanting in our times; but they were singularly liable to abuse, and when they were abused they threw everything into confusion.

This explains what the offence of maintenance was when the statutes referred to were passed. It was neither more nor less than chronic organised anarchy, striking at all law and government whatever. The history of the times shows how vigorous were the associations by which the members of the small courts described bound themselves to maintain and uphold each others' interests on all occasions against all comers. A king like Edward I. or Edward III., or Henry IV. or Henry V., might by force of character or by great military success enforce the law and put down the breakers of the law; but a weak king-Edward II., Richard II., Henry VI.-was powerless before them, whatever statutes he might pass. The offence of maintenance, or armed anarchy was not finally suppressed till the days of the Tudors, and it is very remarkable that it was then put down, not by new laws, but by the vigorous, unflinching execution of the old ones by a severe court acting under the orders of a succession of kings of unusual force of character, who put themselves at the head of the great movement of the age in which they lived.

The statute 3 Hen. 7, c. 1 (1487), to which I have already referred, provided the means by which the Court of Star Chamber asserted the royal authority so effectually as utterly to put an end to what our ancestors understood by the offence of maintenance. It enacted no new offence, but its first recital is that the king "remembereth how by un"lawful maintenances, giving of liveries, signs and tokens, "and attainders by indentures, promises, oaths, writings or