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But this is to be understood of criminal prosecutions and not civil actions.

And see tit. Parliament.

THE duties

Geo. 3. c. 69.

Perfumery.

on perfumery are repealed by stat. 39 & 40

common law.

Perjury and Subornation.

§ I. Of Perjury and Subornation by the Common Law.
II. Of Perjury and Subornation by the Statute of the 5 El. c. 9.
III. Of Matters common to them both.

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I. Of Perjury and Subornation by the Common Law.

Perjury at the PERJURY by the common law seemeth to be a wilful false oath by one who being lawfully required to depose the truth in any judicial proceeding swears absolutely in a matter material to the point in question, whether he be believed or not. 1 Haw. c. 69. § 1. 3 Inst. 164.

Must be wilful.

Swearing the

truth not knowing it to be so, is perjury.

Wilful.] The false oath must be wilful and proved to be taken with some degree of deliberation; for if upon the whole circumstances of the case it shall appear probable that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by surprise or inadvertency, or a mistake of the true state of the question, it cannot but be hard to make it amount to voluntary and corrupt perjury, which is of all crimes whatsoever the most infamous and detestable. 1 Haw. c. 69. § 2.

False.] It is said not to be material, whether the fact which is sworn be in itself true or false; for however the thing sworn may happen to prove agreeable to the truth, yet if it were not known to be so by him who swears to it, his offence is altogether as great as if it had been false; inasmuch as he wilfully swears that he knows a thing to be true, which at the same time he

knows nothing of, and impudently endeavours to induce those before whom he swears to proceed upon the credit of a deposition, which any stranger might make as well as he. 1 Haw. c. 69. § 6. 2 Russ. 1754. [But it is otherwise on the 5 El. c. 9.]

So, in Pedley's case, 1 Leach, 327, it was holden by Ld. Mansfield C. J. that a man may be indicted for perjury in swearing that he believes a fact to be true, which he must know to be false.

It is further said, that upon this question being agitated in the Court of C. P. all the judges were unanimous, that belief was to be considered as an absolute term, and that an indictment might be supported upon such a statement. 1 Haw. c. 69. p. 88. note (a), edit. of 1795., and 2 Russ. 1753.

Being lawfully required.]

It seemeth clear, that no oaths Oaths adminiswhatsoever, taken before persons acting merely in a private ca- tered by impropacity, or before those who take upon them to administer oaths per persons, not of a public nature, without legal authority, or before those who perjury. are legally authorised to administer some kinds of oaths, but not those which happen to be taken before them or even before those who take upon them to administer justice by virtue of an authority seemingly colourable, but in truth unwarranted and merely void, - can amount to perjuries, but are altogether idle and of no force. 1 Haw. c. 69. § 4. See also, 4 Bl. Com. 137., and title Daths, ante, p. 531. 532.

In any judicial proceeding.] For though an oath be given by him that hath lawful authority, and the same broken, yet if it be not in a judicial proceeding, it is not perjury, because such oaths are general and extrajudicial, but it serves for aggravation of the offence. Such are, general oaths given to officers or ministers of justice, the oath of fealty and allegiance, and such like. Thus, if an officer commit extortion, it is against his general oath, but yet not perjury, because not in a judicial proceeding: but when he is charged with extortion, the breach of his oath may serve for aggravation. 3 Inst. 166.

To found an indictment for perjury, the requisite circumstances are these; the oath must be taken in a judicial proceeding, be-fore a competent jurisdiction; and it must be material to the question depending, and false. Per Ld. Mansfield C. J., in Rex v. Aylett, 1 T. R. 69.

Therefore where an oath is administered by a person that hath lawful authority to tender the same, and it is afterwards broken, yet if it be not in a judicial proceeding; it is no perjury, nor punishable by the common law. 3 Inst. 166.

Must be taken in a judicial proceeding to

make it perjury.

Swears absolutely.] For the deposition must be direct and ab- Swearing absosolute; and not, as he thinketh, or remembereth, or believeth, lutely. or the like. 3 Inst. 166. And see Pedley's case, 1 Leach, 325. In a matter material to the point in question.] For if it be not material, then though it be false, yet it is no perjury, because it concerneth not the point in issue, and therefore in effect it is extrajudicial. 3 Inst. 167.

But it is not necessary that it appear to what degree the point in which a man is perjured was material to the issue; for if it be but circumstantially material, it will be perjury. 1 Ld. Raym. 258.

Much less is it necessary that the evidence be sufficient for the plaintiff to recover upon; for in the nature of the thing an evi

Must be material to the point in question.

Not material whether be

lieved or not.

False oath, in

dictable in some cases, though not assignable as perjury.

2 Russ. 1759.

Subornation at common law.

Punishment of perjury and subornation by the common law.

Power of justices of the peace therein.

5 El. c. 9.

dence may be very material, and yet it may not be full enough to prove directly the point in question. 2 Ld. Raym. 889.

Whether he be believed or not.] It hath been holden not to be material upon an indictment of perjury at common law whether the false oath were at all credited, or whether the party in whose prejudice it was intended were in the event any way aggrieved by it or not; insomuch as this is not a prosecution grounded on the damage of the party, but on the abuse of public justice. 1 Haw. c. 69. § 9.

In some cases, where a false oath has been taken, the party may be prosecuted by indictment at common law, though the offence may not amount to perjury. Thus it appears to have been holden, that any person making or knowingly using any false affidavit taken abroad, (though a perjury could not be assigned on it here,) in order to mislead our courts of justice, is punishable by indictment as for a misdemeanor: and Ld. Ellenborough C. J. said, "that he had not the least doubt, that any person making use of a false instrument in order to prevent the course of justice was guilty of an offence punishable by indictment 8 East. 304. Subornation of perjury, by the common law, seems to be an offence, in procuring a man to take a false oath, amounting to perjury, who actually taketh such oath. 2 Haw. c. 69. § 9.

But it seemeth clear, that if the person incited to take such an oath do not actually take it, the person by whom he was so incited is not guilty of subornation of perjury; yet it is certain, that he is liable to be punished not only by fine but also by infamous corporal punishment. 2 Haw. c. 69. § 3.

The punishment of perjury, and subornation of perjury by the common law, is restrained by the statute of the 5 El. hereafter following; that it shall not be less than is inflicted by that statute. See 4 Blac. Com. 138.

the

Mr. Hawkins says, it hath been of late settled, that justices of peace have no jurisdiction over perjury at the common law; the principal reason of which resolution, he says, as he apprehended, was, that inasmuch as the chief end of the institution of the office of these justices was, for the preservation of the peace against personal wrongs and open violence, and the word trespass (in the commission) in its most proper and natural sense, is taken for such kind of injuries, it shall be understood in that sense only, or the most to extend to such other offences only, as have a direct and immediate tendency to cause such breaches of the peace; as libels and such like, which on this account have been adjudged indictable before justices of the peace. 2 Haw. c. 8. § 38.

And in the case of Rex v. Bainton, 2 Str. 1088. an indictment at the quarter sessions for perjury at the common law was quashed for want of jurisdiction; and was said to have been done so about three years before, in the case of Rex and Westiness. Et vide Reg. v. Yarrington, 1 Salk. 406.

II. Of Perjury and Subornation by the Statute of the 5 El. c. 9. As to subornation of perjury, in the first place, by 5 Eliz. c. 9. Procuring any [made perpetual by 29 Eliz. c. 5. § 2. and 21 Jac. 1. c. 28. § 8.] witness to com❤ it is enacted (§ 3.) "that all and every

mit perjury in

such

and person

persons

any matter in
suit, by writ,
&c. concerning

any lands,

feiture of 401.

which shall unlawfully and corruptly procure any witness or wit- 5 El. c. 9. nesses by letters, rewards, promises, or by any other sinister and unlawful labour or means whatsoever, to commit any wilful and corrupt perjury, in any matter or cause whatsoever now depending, or which hereafter shall depend in suit and variance, by any goods, &c. or writ, action, bill, complaint or information, in anywise touching when sworn in or concerning any lands, tenements or hereditaments, or any perpetuam rei goods, chattels, debts or damages, in any of the courts, viz. memoriam puThe king's courts of Chancery, the Star Chamber, the Whitehall, nishable by foror elsewhere within any of the king's dominions of England or Wales, or the Marches of the same, where any person or persons have, or from thenceforth should have authority by virtue of the king's commission, patent, or writ, to hold plea of land, or to examine, hear, or determine any title of lands, or any matter or witnessess concerning the title, right or interest of any lands, tenements, or hereditaments, or in any of the queen's majesty's courts of record, or in any leet, view of frank-pledge, or law day, ancient demean court, hundred court, court-baron, or in the court or courts of the Stannary in the counties of Devon and Cornwall; or shall likewise unlawfully and corruptly procure or suborn any witness or witnesses, which shall be sworn to testify in perpetuam rei memoriam, that then every such offender or offenders shall for his, her, or their said offence, being thereof lawfully convicted or attainted, lose and forfeit the sum of forty pounds."

the value of

§ 4. And "if it happen any such offender or offenders, Such offender so being convicted, or attainted as aforesaid, not to have any not having goods or chattels, lands or tenements, to the value of forty goods, &c. to pounds, that then every such person so being convict or at- 401. to suffer tainted of any of the offences aforesaid, shall for his or their said imprisonment offence suffer imprisonment by the space of one half-year, without and stand in bail or main-prize, and to stand upon the pillory (a), the space of the pillory. one whole hour, in some market town, next adjoining to the place where the offence was committed, in open market there, or in the market town itself where the offence was committed."

con

Persons con

received as wit

5. And, that no person or persons, being so victed or attainted, be from thenceforth received as a witness victed not to be to be deposed and sworn in any court of record (within England, nesses until Wales, or the Marches of the same,) until such time as the judg- judgment rement given against the said person or persons shall be reversed versed. by attaint or otherwise; and that upon every such reversal, the parties grieved to recover his or their damages against all and every such person and persons as did procure the said judgment so reversed to be first given against them or any of them, by action or actions, to be sued upon his or their case or cases, according to the course of the common laws of this realm."

to forfeit 201.

§ 6. Enacts, "that if any person or persons either by Persons comthe subornation, unlawful procurement, sinister persuasion or mitting perjury means of any others, or by their own act, consent, or agreement, and to be imwilfully and corruptly commit any manner of wilful perjury, by prisoned for six his or their deposition in any of the courts before mentioned, or months; and being examined ad perpetuam rei memoriam, that then every person or persons so offending, and being thereof duly convict or in any court of

(a) See stat. 56 G. 3. c. 138. title pillory, &c.

their oath not

to be received

5 El. c. 9. record until judgment reversed.

And if such

offenders have not goods to the value of 201 they are to be

set in the pillory and have their ears nailed, and to be disabled

from being wit

nesses until judgment reversed.

Disposal of forfeitures.

Trial of offences.

The act is not

to extend to

attainted by the laws of this realm, shall for his or their said offence lose and forfeit twenty pounds, and to have imprisonment by the space of six months without bail or mainprize; and the oath of such person or persons so offending from thenceforth not to be received in any court of record within this realm of England or Wales, or the Marches of the same, until such time as the judgment given against the said person or persons shall be reversed by attaint or otherwise: and that upon every such reversal the parties grieved to recover his or their damages against all and every such person and persons as did procure the said judgment so reversed to be given against them or any of them, by action or actions to be sued upon his or their case or cases according to the course of the common laws of this realm."

§ 7. And if it happen the said offender or offenders so offending not to have any goods or chattels to the value of twenty pounds, that then he or they to be set on the pillory (a), in some market-place within the shire, city, or borough, where the said offence shall be committed, by the sheriff or his ministers, if it shall fortune to be without any city or town corporate; and if it happen to be within any such city or town corporate, then by the said head officer or officers of such city or town corporate, or by his or their ministers, and there to have both his ears nailed, and from thenceforth to be discredited and disabled for ever to be sworn in any of the courts of record aforesaid, until such time as the judgment shall be reversed, and thereupon to recover his damages in manner and form before mentioned."

8. One moiety of the said forfeitures shall be to the Queen, and the other moiety to such person as shall be grieved, hindered, or molested by reason of any of the offences before mentioned, that will sue for the same, &c.

§ 9. Enacts, that as well the judge and judges of every such of the said courts where any such suit shall be, and whereupon any such perjury shall be committed, as also the justices of assize and gaol delivery, and justices of peace at their quarter sessions, both within the liberties and without, may inquire of, hear and determine all offences against the said act.

§ 11. Provides that this act shall no way extend to any spiri tual or ecclesiastical court, but that every such offender, as spiritual courts. shall offend in form as aforesaid, shall be punished by such usual and ordinary laws as are used in the said court.

other punish

And 13. also provides, that this statute shall not reNor to restrain strain the authority of any judge having absolute power to punish perjury before the making thereof; but that every such ment of perjury. judge may proceed in the punishment of all offences punishable before the making of the said statute, in such wise as they might have done and used to do to all purposes, so that they set not on the offender less punishment than is contained in this act.

Any witness.] If the defendant perjureth himself in his answer, in the chancery, exchequer chamber, or the like, he is

(a) See stat. 56 G. 3. c. 138, title Pillory, &c.

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