SUPPRESSION OF MAINTENANCE IN ITS ORIGINAL FORM.

239

otherwise embraceries of his subjects, untrue demeanings CH. XXXI.

"of sheriffs in making of panels and other untrue returns,

66

by taking of monies, by juries, by great riots and unlawful assemblies, the policy and good rule of this realm is almost "subdued." The act then goes on to make the provisions as to the Court of Star Chamber, on which I have already remarked. There is one subsequent statute which relates to maintenance. It is 32 Hen. 8, c. 9 (1540). The change which had been effected by the vigorous administration of the law during the interval of fifty-three years which had passed since the 3 Hen. 7, is strikingly exemplified by the provisions of this statute. It confirms all the old statutes of maintenance, and directs them to be put in force and proclaimed at the assizes, but the whole turn of the statute shows that the type of the crime had changed. Instead of references to conspirators, liveries, and badges, and other forcible perversions or open defiances of the law, the statute deals with the importance of "true and indifferent trials of such titles and "issues as been to be tried according to the laws of this "realm." This object is greatly hindered by "maintenance, embracery, champerty, subornation of witnesses, sinister labour, buying of titles and pretensed rights of persons not being in possession, whereupon much injury hath ensued. " and much inquietness, oppression," &c. Provisions are then made against buying and selling "pretensed rights or titles." The old conflict between the law and those who wish to break it by open force is at an end, and fraud, perjury, and chicanery have taken the place of violence.

66

An exact parallel to this presented itself in every part of India upon, and as the consequence of, the establishment of the British authority. Under native rule a question as to a watercourse, for instance, and irrigation rights would perhaps be languidly carried on before one of the old Zemindari Courts, to a great extent by the agency of punchayats, which had many features in common with juries. The decision of the dispute would be greatly influenced by violence, and it would frequently be settled for a time by a pitched battle between the parties and their friends, which might or might not lead to a blood feud. The invariable result of the establishment of a

CH. XXXI. government strong enough to put an end to open violence was to produce an outbreak of litigation and a regular trade in suits," wherefrom" (as in England) "much perjury "ensued," besides "unquietness and oppression" of a different and less formidable type than the old one, but still of considerable importance. It was a common saying in the Punjab some years ago, that the English had set up "pleaderke raj," the rule of the pleaders in the place of the old rule of open violence.

Although maintenance in the old sense of the word is a thing of the past, the name still survives in law books as the name of a crime, but in practice the genus has been lost in the species. The cases of maintenance with which we in these days have to deal are conspiracies to defeat justice which sometimes occur, dissuading witnesses from testifying and perjury—an offence which has a curious history of its own which I now proceed to relate.

2 PERJURY.-There are a few references to the offence of perjury in the laws of the early kings, but they are very vague and general, though oaths held a prominent place in their scheme of government. These, as appears from the forms given, were oaths asserting not the existence of particular facts, but the goodness of the swearer's cause. By the Lord, I am guiltless both in deed and counsel of the charge of which N. accuses me." "By the Lord, the "oath is clean and unperjured which N. has sworn." The minute examination of testimony as to facts stated in detail was not the method by which questions were in those days investigated. Hence the kind of offence to which we in the present day give the name of perjury differs entirely from the perjury which is mentioned in the early laws.

The language used against perjury is extremely general and vague. 4" Let every injustice be carefully cast out from this country as far as it can be done, and let fraudulent deeds and "hateful illegalities be earnestly shunned, that is, false weights

66

1 See my Digest, art. 142, p. 87.

The greater part but not the whole of this account of the law of perjury is taken from Note VII. to my Digest, p. 340.

3 Thorpe, i. 179-185.

4 Ib. 311.

"and wrongful measures, and lying witnesses, and shameful CH. XXXI.

fights, and horrid perjuries, and diabolic deeds in 'morth,' "works, and in homicides, in theft and in plundering," &c., say the laws of Ethelred and several other legislators with variations. The most definite provision which I have noticed as to perjury is in the laws of King Edward the Elder: "Also we have ordained concerning those men who were "perjurers if that were made evident or an oath failed to them (ie. if they failed to produce the legal number of compurgators; or when one of the persons produced refused to join in the oath), “that they afterwards should not be oath-worthy but ordeal-worthy."

Perjury thus appears in very early times to have been not so much a lie told about a specific matter of fact in a witness box, as a false oath taken in a case in which the matter at issue was decided by the oaths of the persons interested and their compurgators. As I have shown in the earlier part of this work the decision of cases by the detailed examination of witnesses, and the crimes which arise out of that mode of procedure, were unknown until a comparatively modern period in our history, and, on the other hand, the process of deciding cases by ordeal, by compurgation, or by combat, left deeper traces in our history than is usually supposed.

After the Conquest the ordeal and compurgation were gradually superseded by the institution of the jury, who, as I have shown at length, were at first witnesses rather than judges. The twelve men of the vicinage who swore before the justices that such a person was guilty or not of such an offence, were a step in advance of compurgators or the proceedings of an ordeal, but they differed widely from modern. jurymen. We find, accordingly, that in early times, and indeed for several centuries, the only perjury of which the common law took notice was the perjury of jurors, and this was punished, not as a substantial offence, but as an incidental result of the process called "attaint," the main object of which was to set aside a false verdict in certain kinds of actions. It thus affords an instance of the blending of civil and criminal

1 Thorpe, i. 161. Edward the Elder, 3.

VOL. III.

R

CH. XXXI. consequences in a single proceeding, which, as I have already

2

observed, was not an uncommon characteristic of our early
criminal law. Three curious passages in 1 Bracton, 2 Fleta,
and 3 Britton, are to much the same purpose. The passages
are too long to quote, but they contain careful distinctions
between verdicts which are merely mistakes and those which
are wilfully false, those in which the blame attaches to the
jury and those in which it attaches to the judge. Incidentally
they throw great light on the respective provinces of the
judge and the jury. They assume, however, throughout that
the
proper function of the jury was that of established and,
so to speak, representative witnesses, who, of course, would be
guilty of a grave offence if they perjured themselves. The
punishment, accordingly, if their verdict was set aside on the
ground of perjury, was, as stated by Fleta, very severe.
"Imprimis capiantur et in gaolam detrudantur, et omnes
“terræ et omnia catalla in manum Regis capiantur, et extra
manum suam capiantur cum perpetua infamia, per quam
lege libera deincips non poterint congaudere, quorum sacra-
" mentis veredictis nunquam erit aliquatenus fides adhibenda."
Lord Coke, who refers to these passages in a cursory and un-
intelligent way, observes that this punishment "was so severe
as few or no juries were upon just cause convicted." The
fact probably is that the process of attaint, was objectionable
on many obvious grounds. In the first place no one jury
would ever attaint another lest they might be themselves
attainted; moreover, as the juries, by the steps already
described, ceased to be witnesses and became judges of the
fact, attaints would obviously become inapplicable and inap-
propriate. Moreover the process of attaint, which was at all
times intricate and clumsy in the extreme, fell into disuse,
and other ways of reversing a verdict were adopted.

The real singularity is, that for several centuries no trace is to be found of the punishment of witnesses for perjury. The only passage in an early book bearing on this offence which I have been able to find, besides those in Bracton and

1 Bracton, lib. iv. ch. iv. pp. 2886-2906 (in Sir H. Twiss's edition, vol. iv. pp. 388-415.)

2 Fleta, 22.

3 Britton, lib. iv. tract v. ch. ix. vol. ii. p. 212 (Nicholls' ed.)

PERJURY IN WITNESSES ANCIENTLY NOT A CRIME.

243

Fleta already referred to, is in the Mirror. The passage is as CH. XXXI. follows: 1" Perjury is a great offence of which ye are to "distinguish either of perjury of false testimony, or by breach of faith, or by breach of the oath of fealty: Of the first "perjury ye are to distinguish either of perjury mortal or "venial: if of mortal, then the judgment was mortal to the "example of apparent murderers." This passage, however, stands alone. In an earlier 2 chapter the author treats perjury as consisting exclusively of breaches of promissory oaths by the officers of the king's house to do their duty. It is difficult to prove a negative as to the contents of the Year Books, but I do not think they contain any reference to this offence. There is no such title as “Perjury" in Broke's Abridgment. One case only is referred to in Fitzherbert, under the title "Parjure." In this instance a man was fined and imprisoned for representing his property as greater than it really was when he offered himself as bail, which might be regarded as a contempt of court. The subject is not mentioned either by Staundforde or Lambard, nor in the original edition of Dalton's Justice. Perjury was no doubt regarded as a spiritual offence. 3 Several cases of prosecutions for it are to be seen in Archdeacon Hale's Ecclesiastical Criminal Precedents. Most of them refer to matters of ecclesiastical cognizance, such as incontinence, but one relates to a common transaction of business. Johannes Traford "notatur super crimine perjurii, eo quod non solvit M. R. Spencer [blank in the original], quos promisit solvere." This procedure was jealously watched by the courts of common law. Two cases occur in the Year Books in which a prohibition went to the spiritual court to restrain them from inquiring into false oaths, or rather breaches of promissory oaths relating to temporal matters, upon the ground that such an inquiry was an indirect way of determining spiritual questions. In the second of the cases referred to the report says, "It happened in the King's Bench that a man had sworn to make a feoffment of land, and for not doing so he

1 Bk. ii. s. 19, p. 208.

3 Nos. 75, 77, 93, 131, 146, 147, 200.

2 Ch. i. s. 5, p. 18.

42 Hen 4, p. 10, No. 45; and 11 Hen. 4, p. 88, No. 40.