money by false

"Whereas a failure of justice frequently arises Obtaining from the subtle distinction between larceny and pretences. fraud; for remedy thereof be it enacted, That if any person shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to suffer such other punishment, by fine or imprisonment, or by both, as the court shall award; provided always, that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as 'to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no such indictment shall be removable by certiorari; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts." PERJURY is defined to be a wilful false oath, Perjury; 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 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 surprize or inadvertency, or mistake of the true state of the (1) 1 Hawk: 318.

The false

swearing must

be wilful:

and lawfully required;

question, it will not amount to perjury.1 The oath must be lawfully required in a judicial proceeding. The law takes no notice of any perjury but such as is committed in some court of justice, or before some magistrate or proper officer, having power to administer an oath. When an oath is required by an act of parliament, but not in a judicial proceeding, the breach of that oath does not amount to perjury, unless the statute enacts that such oath, when false, shall be perjury, or shall subject the offender to the penalties of perjury. The mutiny act declares that any person taking a false oath, in any case wherein an oath is required to be taken by it, shall be deemed guilty of wilful and corrupt perjury, and liable to the penalties thereto attaching. The swearing must be absolutely in a matter malerial. matter material; He who swears a thing according as he thinks, remembers or believes, cannot, in respect of such an oath, be found guilty of perjury. a man may be indicted for perjury in swearing that he believes a fact to be true, which he must know to be false. The matter must bear on the question in issue, directly or circumstantially; 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.5 The proof of the matter with prosecutor. being material, rests with the prosecutor:" and from what has been stated, it would appear that perjury may take place by giving false testimony on any question rightly admitted by the court; for no question ought to be admitted (except as

It must be absolute in a

the proof

whereof rests

But

1

to character in military courts') which does not bear directly or collaterally on the charge.

SUBORNATION OF PERJURY is the procuring Subornation of

a man to take a false oath, amounting to perjury, who actually takes such oath: but it seemeth clear, that if the person incited to take such 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 punishment. It appears to be immaterial by what means a person is excited to take a false oath, whether personally or by letter, by rewards or promises, or by any other mode or means.

perjury,

of Perjury and

of Perjury;

The punishment of perjury and subornation Punishment of perjury is, for the most part identical; both Subornation offences may be punished by imprisonment for six months (with hard labour),3 and a fine of twenty pounds; and in default of payment of the fine, the offender may be set in the pillory, Punishment. and have both ears nailed to it. The court before which an offender may be lawfully tried and convicted of either of these offences, may also order such person to be sent to a house of correction, with hard labour, for a time not exceeding seven years, or otherwise to be transported for a similar period.5 Perpetual infamy attends conviction in either case; except that the legal infamy of a person convicted of either of these offences, or his incompetency as a witness may be restored by the king's pardon; unless the disability be declared by act of parliament, as in the case of a conviction of

Imprisonment for criminal offences.

perjury, or subornation of perjury on the statute 5 Eliz. c. 9, in which case the statute expressly provides, that the person thus convicted shall never be admitted to give evidence in any court of record, until the judgment be reversed.

Note.-The imprisonment under all the new acts may be with or without hard labour, and with solitary confinement, as the court may direct, but the solitary confinement is limited in all cases: the 7 Will. 4 & 1 Vict. c. 90, s. 5, enacted1" that from and after the commencement of this act, it shall not be lawful for any court to direct, that any offender shall be kept in solitary confinement for any longer periods than one month at a time or than three months in the space of one year."

(1) Circular, dated Horse Guards, 16th Dec., 1837. 7 & 9 Sec. Mut. Act. By the prisons regulation act (2 & 3 Vict., c. 56, s. 4) the separate confinement therein provided for is not to be deemed solitary confinement within the meaning of any act limiting the same to a certain period.

APPENDIX.