Perjurious Wager

What happens if a plaintiff complains to the church courts of the perjury when a defendant falsely wages his law? ______________________________________________________________________________________________________________________________________

A false wager of law, if sanctioned by the ecclesiastical courts, seems likely to have resulted in a sentence of excommunication.

Did ecclesiastical courts have jurisdiction to punish perjury?

5 Elizabeth, c. 9, passed in 1563, demonstrates that the ecclesiastical courts had a previously existing right to punish perjury and also preserves that right. The law provides a statutory basis for common law courts to prosecute perjury but is explicit that ecclesiastical rights are not being infringed:

https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/5_Elizabeth_c._9.pdf

Was false wager of law specifically within the types of perjury punishable by the ecclesiastical courts?

As false wager of law would seem to be a particularly egregious form of perjury, its prosecution might appear to be inevitable. However, this was not the case in the common law courts. There are at least two King’s Bench cases in which the court declined to find an action for perjury for false wager of law. The report of Brown (89 Eng. Rep. 393) reads: “No indictment for perjury by wager of law or swearing a foreign plea: An indictment doth not lie for perjury by wager of law, nor by swearing a foreign plea; and an indictment was quashed for it.” Sir Robert Millers Case (74 Eng. Rep. 1091) reaches the same result, but is more explicit in its reasoning: “[A] man cannot be punisht by the statute of 5 Eliz. Cap. 9. for perjury in his own cause, as wager of law, &c. But by that he shall be indicted at common law, and it was commanded to be observed from henceforth.”

At least in Millers Case, there was no indictment only because 5 Elizabeth c. 9 was being relied on. Brown may be operating on the same grounds, since if Millers Case is to be believed, there was a common law action for perjury in wager of law. Assuming a common law action existed, Brown only makes sense if it is confined to actions based on the statute. As discussed earlier, the statute is only relevant to the ecclesiastical punishment of perjury to the degree that it preserves that ecclesiastical jurisdiction. Thus, the difficulties that were experienced in obtaining an action for perjury in wager of law in King’s Bench seem to have been procedural in nature and, given the content of the statute, would not impair an action in the ecclesiastical courts.

https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/Brown.pdf https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/Sir_Robert_Millers_Case.pdf

How did the ecclesiastical courts punish perjury?

5 Elizabeth c. 23, An Acte for the due Execucon of the Writ De excommunicato capiendo, displays the seriousness with which perjury was treated by the spiritual courts. The statute was aimed at the fact that people excommunicated by the ecclesiastical courts were going unpunished and gave King’s Bench the right to direct sheriffs to enforce the writ de excommunicato capiendo. For our purposes, the end of the statute is most interesting. It provides for a process by which pains and forfeitures levied by the statute can be voided, except in the case of certain crimes, including perjury. This tells us two things. First, it establishes that excommunication was a sentence given out for perjury in the ecclesiastical courts, at least some of the time. Additionally, it shows that among the crimes that could be punished by excommunication in these spiritual courts, perjury was regarded as one of the most serious.

Lynwood’s Provinciale also displays the import of perjury in these ecclesiastical courts. Lynwood provides us with the Canon of Stephen (the archbishop of Canterbury through 1228), which reads: “We excommunicate all such as presume maliciously to rob or defraud churches… We also add unto these, declaring all them to be knit in like sentence, whatsoever they be, that wittingly bear false witness and procure false witness to be bourne, and also that wittingly bring forth such witnesses or suborn and instruct such in cause of matrimony…” That Lyndwood included this two centuries later in his Provinciale tells us that he still viewed it as good canonical law. It would be impossible to say whether perjury was always punished by the ecclesiastical courts with excommunication. However, the combination of 5 Elizabeth c. 23 and the Canon of Stephen tells us that perjury was treated extremely seriously by ecclesiastical courts, with excommunication available as a sentence.

https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/5_Elizabeth_c._23.pdf https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/Lyndwoods_Provinciale.tif

Would these cases definitely be heard in the spiritual courts?

By the 17th Century, it wasn’t necessarily clear that a case involving perjury in an ecclesiastical court would be tried in an ecclesiastical court. Coke writes: “ For perjury concerning any temporall act the eclesiasticall court hath no jurisdiction; and if it be concerning a spirituall matter, the party grieved may sue for the same in the Star Chamber.” It is fairly difficult to imagine the ecclesiastical courts willfully giving up jurisdiction over something that happened in their own courts, but this at least brings up the possibility that these cases would end up somewhere else.

https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/CokeStarChamberJurisdiction.pdf

Conclusion

The sources we have allow us to make a pretty good guess as to what would happen if the plaintiff complained to the ecclesiastical courts of a false wager of law, at least before the introduction of the possibility of Star Chamber jurisdiction makes things a bit murkier: The false wagerer would be tried by the ecclesiastical court, and if found guilty would be excommunicated. There is nothing we can point to that definitively says that this was always (or even usually) the case, but what we do have strongly suggests that it was the most likely outcome. We know that the ecclesiastical courts could and did exercise jurisdiction over perjury in their courts, and we have no reason to think that false wager of law was excluded from this. We also know that perjury was regarded very seriously by the spiritual courts and that canon law from the time of Archbishop Stephen Langton prescribed a sentence of excommunication for perjury.