A TREATISE

ON

CRIMES AND MISDEMEANORS.

BOOK THE FIFTH.

OF OFFENCES WHICH MAY AFFECT THE PERSONS OF INDIVIDUALS OR PROPERTY.

CHAPTER THE FIRST.

OF PERJURY AND SUBORNATION OF PERJURY.

PERJURY, by the common law, appears to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not.(a)1

Subornation of perjury by the common law is an offence in procuring a man to take a false oath amounting to perjury, who actually takes such oath. But it seems 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.(b)a

Inciting a witness to give particular evidence, where the inciter does not know whether it is true or false, is a high misdemeanor, especially if the inciter, being attorney on one side, gets himself employed for that purpose by the other side; at least, if the evidence is given accordingly. The indictment charged that the defendant, an attorney, being retained to defend Wood against a charge of picking Lewis's pocket, deceitfully procured himself to be employed by Lewis, and persuaded Lewis to swear before the grand jury that he did not know who picked his pocket, which he did, and no bill was returned. An objection was made that Lewis's evidence was not stated to have been false; but, upon a case reserved, the judges thought it unnecessary, as the defendant's *crime was the same, unless he knew it to be true, and that he should have proved. (c)

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The false oath must be wilful, and taken with some degree of deliberation; for if upon the whole circumstances of the case it shall appear probable that it was

(a) 1 Hawk. P. C. c. 69, s. 1; 3 Inst. 164; Com. Dig. tit. Justice of Peace, B. 102; Bac. Ab. tit. Perjury.

(b) 1 Hawk. P. C. c. 69, s. 10; Bac. Ab. tit. Perjury, and the authorities there cited. (c) Rex v. Edwards, East T. 1764, MS. Bayley, J. And as to dissuading witnesses from giving evidence, see vol. 1, p. 264.

Chapman v. Gillett, 2 Conn. 40; Shaffer v. Kintzer, 1 Binn. 543; State v. Hanson, 39 Maine 337; State v. Beard, 1 Dutch. 384; State v. Kennerly, 10 Rich. (Law) 152; State v. Lamont, 2 Wis. 437; Comm. v. Powell, 2 Met. (Ky.) 10; Cathran v. State, 39 Miss. 541; People v. Sweetman, 3 Parker C. R. 358; Rump v. Comm., 6 Casey 475. Incompetent witness guilty of perjury: Chamberlain v. People, 23 N. Y. 85.

2 People v. Evans, 40 N. Y. 1.

VOL. III.-1

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.(d)

It has been said that no oath will amount to perjury unless it be sworn absolutely and directly, and, therefore, that he who swears a thing according as he thinks, remembers, or believes, cannot, in respect of such an oath, be found guilty of perjury. But De Grey, C. J., appears to have laid down a different doctrine.(ƒ) And Lord Mansfield, C. J., is stated to have said, "It is certainly true 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."(g) It is further said that, upon this question being agitated in the Court of Common Pleas, 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.(h) But it has been holden that perjury cannot be assigned upon an assertion the correctness of which depends upon the construction of a deed.(i)

An indictment for perjury alleged that the defendant swore that he thought that certain words written in red ink were not his writing; whereas the defendant, when he so deposed, thought that the said words were his writing; and the Court of Queen's Bench held that the assignment was sufficient. If a witness swore that he thought that a certain fact took place, it might be difficult indeed to show that he committed wilful perjury. But it was certainly possible, and the averment was as properly a subject of perjury as any other.(j)

The important requisites in a case of perjury appear to be these: the false oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending.(k)

With respect to the falsity of the oath it should be observed, that it has been considered not to be material whether the fact, which is sworn, be in itself true or false; for, howsoever 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 endeavors to induce those *before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he.(7)

*3]

(d) 1 Hawk. P. C. c. 69, s. 2.

(f) Miller's case, 3 Wils. 427; 2 Black. Rep. 881.

(e) 3 Inst. 166.

(g) Pedley's case, 1 Leach 325. (h) Anon. C. P. Mich. T. 1780; 1 Hawk. P. C. c. 69, s. 7, note (a), p. 88 (ed. 1795).

(1) Rex v. Crespigny, 1 Esp. 280, Lord Kenyon, C. J.

(J) Reg. v. Schlesinger, 10 Q. B. 670 (59 E. C. L. R.).
(k) By Lord Mansfield, C. J., in Rex v. Aylett, 1 T. R. 69.

(7) 1 Hawk. P. C. c. 69, s. 6; Rex v. Edwards, cor. Adams, B., Shrewsbury Lent Ass. 1764; and subsequently considered of by the judges, MS. And see per Lawrence, J., in

1 State v. Cochran, 1 Bailey 50. If a person know that a fact exist, but state on oath, knowingly and intentionally to deceive and mislead, that if the fact is so he does not know it, he will be guilty of perjury, and it will be equivalent to swearing that the fact does not exist: Wilson v. Nations, 5 Yerg. 211. When the affidavit upon which the charge of perjury is founded, merely states the belief of the affiant, that a larceny had been committed, the assignment of the perjury must negative the words of the affidavit, and it is not sufficient to allege generally that the persons charged committed not the larceny; it is necessary, when the defendant only states his belief, to aver that the fact was otherwise, and that the defendant knew the contrary of what he swore: State v. Lea, 2 Ala. 602 An indictment for perjury cannot be maintained when the supposed perjury depends upon the construction of a deed: State v. Woolverton, 8 Black. 452. A man who swears wilfully to a matter that he rashly believes, but which he has has no probable cause for believing and which is false, is guilty of perjury: Comm. v. Cornish, 6 Binn. 249; State v. Knox, Phill. (Law) 312. A witness who does not know whether or not a certain event occurred at a certain time and place, but who swears that it did not occur then and there, is guilty of perjury: State v. Gates, 17 N. H. 373. False swearing to a fact, to the best of the opinion of the witness, which the witness, though without any reasonable cause, believes to be true, is not perjury: Comm. v. Brady, 5 Gray 78. Where one states the facts truly, and then signs a deposition on the assurance of a lawyer that it was substantially what he stated, there is no perjury: United States v. Stanley, 6 M'Lean 409; Jesse v. State, 20 Geo. 156.

The oath must be taken either in a judicial proceeding, or in some other public proceeding of the like nature, wherein the King's honor or interest are concerned; as before commissioners appointed by the King to inquire of the forfeitures of his tenants, or of defective titles wanting the supply of the King's patents. But it is not material whether the court, in which a false oath is taken, be a court of record or not, or whether it be a court of common law, or a court of equity, or civil law, &c., or whether the oath be taken in the face of the court, or out of it before persons authorized to examine a matter depending in it, as, before the sheriff on a writ of inquiry, &c., or whether it be taken in relation to the merits of a cause, or in a collateral matter, as where one offers himself to be a bail for another, swears that his substance is greater than it is.(m) But neither a false oath in a mere private matter, as in making a bargain, &c, nor the breach of a promissory oath, whether public or private, is punishable as perjury.(n)

Much doubt formerly prevailed in certain cases as to the power to administer an oath; but this doubt is, to a great extent, removed by the Act to amend the Law of Evidence, 14 & 15 Vict. c. 99, s. 16, by which "every court, judge, justice, officer, commissioner, arbitrator, or other person now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively."

Where perjury was assigned upon an affidavit of an attorney of the Court of King's Bench, made in answer to a charge exhibited against him in a summary way, for having in his possession blank pieces of paper with affidavit stamps, and the signatures of a master extraordinary in chancery and another person at the bottom of the papers, an objection was taken in arrest of judgment that the indictment did not show that the affidavit of the defendant was made in any legal proceeding. It was urged that the court had no right to call on the defendant summarily to answer any complaint against him merely because he was attorney, unless in a case touching the defendant's office as an attorney, in his conduct towards some of the suitors of the court, or for a breach or contempt of some rule or order of the court, or for some matter touching the proceedings or process of the court, none of which were stated; or, if the paper found in the defendant's custody could have been the object of a summary inquiry (not having been used or attempted so to be, nor having a proper stamp) it could only have been in the Court of Chancery, where the paper could have been used, if at all, and not in the Court of King's Bench; wherefore all the proceedings respecting *it were coram non judice, [*4 and could not be the subject of an indictment for perjury. But this objection was afterwards abandoned.(0)

It has been doubted, whether a false oath taken in Doctors' Commons, for the purpose of obtaining a marriage license, amounts to perjury.(p) And the same doubt was entertained in a subsequent case, where the defendant was indicted for perjury in an affidavit in Doctors' Commons, in order to obtain a license to marry one C. Hill, spinster, to which he swore that he knew no lawful impediment, whereas in truth and in fact he knew she was the wife of another man.(q) And it has been

Rex v. Mawbey, 6 T. R. 619; 2 Rolle Abr. Indictment (E), pl. 5, p. 77; Allen v. Westley, Hetley 97; Gurney's case, 3 Inst. 166. See Reg. v. Newton, 1 C. & K. 469 (47 E. C. L. R.), for a count framed to meet such a case.

(m) 1 Hawk. P. C. c. 69, s. 3; Bac. Abr. tit. Perjury (A).

(n) Id. ibid.

(0) Rex v. Crossley, 7 T. R. 315. (p) Alexander's case, 1 Leach 63. The point was submitted to the judges, and several times agitated; but the result was not communicated, as the prisoner died in Newgate. (9) Woodman's case, 1 Leach 64, note (a). The point appears to have been submitted also in this case to the consideration of the twelve judges; but their opinion was not publicly communicated. In 3 Chit. Crim. L. 713, a precedent is given of an information by the

If a State magistrate administer an oath under the act of Congress expressly giving him the power to do so, it would be a lawful oath by one having competent authority; as much so as if he had been specially appointed a commissioner under a law of Congress for that purpose: U. S. v. Bailey, 9 Pet. 238.

lately decided that a false oath before a surrogate, taken in order to procure a marriage license, will not support a prosecution for perjury; and, further, that if the indictment only charges the taking the false oath without stating that it was for the purpose of procuring a license, or that a license was procured thereby, the party cannot be punished thereupon as for a misdemeanor. The indictment stated that the prisoner, being minded to procure a marriage between himself and A. B., went before a surrogate, and was sworn to an affidavit in writing, that the said A. B. had been residing four weeks in the parish of S., whereas she had not, and so he had committed perjury; and the indictment had all apt allegations of an indictment for perjury. But a case being reserved upon the question whether on such an affidavit the party could be prosecuted for perjury, and if not, whether upon this indictment any offence was charged, the judges were unanimous that upon an oath before a surrogate, perjury could not be assigned; and that as this indictment did not charge that the defendant took the oath to procure a license, or that he did procure one, no punishment could be inflicted, and he was therefore pardoned. (r) It appears, however, from this case, that if the purpose of such an oath is to obtain a license, and the license is obtained, and the marriage had, the party may be indicted as for a misdemeanor. The nature of the oath at present required to be taken before the surrogate is described in the 4 Geo. 4, c. 76, s. 14, and by sec. 23 of that statute, when a marriage has been effected between parties under age, contrary to the Act, by means of a false oath or fraud, certain proceedings are given by which the guilty party may be made to forfeit all property accruing from the marriage.

The third count of an indictment stated that W. James was a surrogate having authority to grant licenses for marriages, and that the defendant applied to the said W. James to grant a license for the solemnization of a marriage between J. Baker

and S. Fry, and that the defendant, unlawfully intending to obtain *such license

*5] for the said marriage in fraud of the 4 Geo. 4, c. 76, for the purpose of ob

taining such license, before the said W. James, took his corporal oath upon the Holy Gospel of God, and that the defendant being so sworn as aforesaid before the said W. James as such surrogate (he the said W. James having competent authority, as such surrogate, to administer the said oath) did, for the purpose of thereby obtaining such license for the marriage of the said J. Baker and S. Fry, falsely, corruptly, &c., swear, &c., that the name of him, the defendant, was J. Baker, and that he was one of the parties for whose marriage a license was then applied for, and that he was a yeoman and a widower, and that the said S. Fry had had her usual place of abode within the parish of W. in the county of S. for the space of fifteen days then last past. The count then negatived the matter sworn in the usual manner. By means of which false oath the defendant did then obtain from the said W. James, so being such surrogate, a license for the solemnization of a marriage between the said J. Baker and S. Fry. The prisoner having been convicted, upon a case reserved, it was contended that this count charged no offence. That a surrogate had no authority to administer an oath, and at all events not this oath, to the defendant. That the count did not aver that a written license was obtained, or the marriage celebrated by means of such license. But it was held that the count charged a misdemeanor. It distinctly averred that the prisoner swore falsely as to S. Fry; and any one material fact falsely sworn to is sufficient to support the charge. Then the only question was as to the surrogate's power to administer the oath; not such an oath as will support an indictment for perjury, but as will make a party guilty of a misdemeanor. By the canon law the surrogate had such power, and the 4 Geo. 4, c. 76, seems to assume that power. To make a false oath in order to procure a marriage license from an officer empowered to grant such license is a misdemeanor; because it is a step towards the accomplishment of a misdemeanor. The actual celebration of the marriage is immaterial. Anything

attorney-general for a misdemeanor in procuring a marriage with a minor, by false allegations; and in the note (a), it is said, "It seems doubtful whether an indictment for perjury could have been supported in this case: but it seems most probable that it might." And 1 Leach 63, is referred to.

(r) Rex v. Forster, MS. Bayley, J., and R. & R. 459.