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ion (p. 937), that perjury could not be legally assigned by showing contradictory depositions with an averment that each of them was [*772] made knowingly and deliberately, but without averring or showing in which of the two depositions the falsehood consisted. So where the defendant was charged with perjury committed on a trial at the sessions; Gurney, B., held that a deposition made by the defendant before the magistrate entirely different from what he swore at the trial, was not in itself sufficient proof that the evidence he gave at the sessions was false, but that other confirmatory proof must be adduced to satisfy the jury that he swore falsely at the trial. Strong confirmatory evidence having been given of the truth of the deposition, the defendant was found guilty. Wheatland's case, 8 C. and P. 238 (a).

The following observations on this subject, by an able writer on criminal law, are well deserving of attention. Where depositions, contrary to each other, have been emitted in the same matter by the same person, it may with certainty be concluded that one or the other is false. is not relevant to infer perjury in so loose a manner; the prosecutor must But it go a step further, and specify distinctly which of the two contains the falsehood, and peril his case upon the means he possesses of proving perjury in that deposition. To admit the opposite course, and allow the prosecutor to libel on both depositions, and make out his charge by comparing them together, without distinguishing which contains the truth and which the falsehood, would be directly contrary to the precision justly required in criminal proceedings. In the older practice this distinction does not seem to have been distinctly recognized; but it is now justly considered indispensable that the perjury should be specified as existing in one, and the other deposition referred to in modum probationis, to make out along with other circumstances, where the truth really lay. Alison, Princ. Cr. Law of Scot. 475. These remarks are applicable to the cases in our law, in which the evidence of one witness, viz. the party producing the contradictory statement, and the statement itself, have been allowed as sufficient evidence to prove the falsity of the oath. Such statements may be used as strong corroborations of the prosecutor's case, and as such they are admitted in the Scotch law. Mr. Alison) of the perjury, upon the evidence merely of previous or subA party cannot be convicted (says sequent declarations emitted by him, inconsistent with what he has sworn; because in dubio it must be presumed that what was said under the sanction of an oath was the truth, and the other an error or falsehood, but both such declarations and written evidence under his hand, inconsistent with what he has sworn, form important articles, which, with others, will be sufficient to make the scales of evidence preponderate against him. Principles of Crim. Law of Scot. 481.

Witnesses-competency of.] It was formerly ruled, that the party injured by the perjury was incompetent as a witness for the prosecution, where he might obtain relief in equity, on the ground of the perjury. Dalby's case, Peake, N. P. C. 12; Eden's case, 1 Esp. N. P. C. 97. But as it is now an established rule, that a court of *equity will not [ *773 ] grant relief on a conviction which proceeds on the evidence of the prose

(a) Eng. Com. L. Rep. xxxiv. 369.

cutor, there can be no objection to his being admitted as a witness, Bartlett v. Pickersgill, cited 4 Burr. 2255; 4 East, 577; Phill. Ev. 63, 8th ed. And, in general, the party prejudiced is a competent witness. to prove the offence. Broughton's case, 2 Str. 1230; Abraham v. Bunn, 4 Burr. 2255; 2 Russell, 546. It is no objection to the competency of a. witness, on an indictment for perjury committed in an answer in chancery, that in his answer to a cross bill, filed by the defendant, he has sworn the fact which he is to prove on the indictment. Pepys' case, Peake, N. P. C. 138.

If several persons are separately indicted for perjury, in swearing to the same fact, any of them, before conviction, may give evidence for the other defendants. 2 Hale, P. C. 280.

See further, title Witnesses, ante, p. 128, 181.

Statutes relating to perjury.] The principal statutory enactment respecting perjury, is the 5 Eliz. c. 9, the operation of which is, however, more confined than that of the common law; and as it does not (see sec. 13,) restrain in any manner the punishment of perjury at common law, it has seldom been the practice to proceed against offenders by indictment under this statute.

By sec. 3, the procuring any witness to commit perjury in any matter in suit, by writ, &c., concerning any lands, goods, &c., or when sworn in perpetuam rei memoriam, is punishable by the forfeiture of forty pounds.

By sec. 4, offenders not having goods, &c. to the value of forty pounds, are to suffer imprisonment, [and stand in the pillory.]

Sec. 5 enacts, that no person or persons, being so convicted or attainted, be from thenceforth received as a witness to be deposed and sworn in any court of record, (within England, 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 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 the realm.

Sec. 6 enacts, that if any person or persons, either by the subornation, unlawful procurement, sinister persuation, or means of any others, or by their own act, consent, or agreement, wilfully and corruptly commit any manner of wilful perjury, by his or their deposition in any of the courts before mentioned, or being examined ad perpetuam rei memoriam, that then every person or persons so offending, and being thereof duly convicted or 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 [*774 ] 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.

By sec. 7, if such offenders have not goods to the value of twenty pounds, they are [to be set in the pillory, and have their ears nailed, and] to be disabled from being witnesses, until judgment reversed.

This provision, as already stated, does not affect persons convicted of perjury at common law, whose competency may be restored by pardon, though it is otherwise with regard to persons convicted under this statute. Ante, p. 125.

It appears that a person cannot be guilty of perjury within the meaning of this statute, in any case wherein he may not be guilty of subornation of perjury within the same statute, and as the subornation of perjury there mentioned, extends only to subornation "in matters depending in suit by writ, action, bill, plaint, or information, in anywise concerning lands, tenements, or hereditaments, or goods, chattels, debts, or damages, &c.," no perjury, upon an indictment or criminal information, can bring a man within the statute. Hawk. P. C. b. 1, c. 69, s. 19; Bac. Ab. Perjury, (B.) The statute only extends to perjury by witnesses, and therefore no one comes within the statute by reason of a false oath in an answer to a bill in Chancery, or by swearing the peace against another, or in a presentment made by him as homager of a court baron, or for taking a false oath before commissioners appointed by the king (1). Hawk. P. C. b. 1, c. 69, s. 20. It seems that a false oath taken before the sheriff, on an inquiry of damages, is within the statute. Id. s. 22. No false oath is within the statute which does not give some person a just cause of complaint; for otherwise it cannot be said that any person was grieved, hindered, or molested. In every prosecution on the statute, therefore, it is necessary to set forth the record of the cause wherein the perjury complained of is supposed to have been committed, and also to prove at the trial of the cause, that there is actually such a record, by producing it or a true copy of it, which must agree with that set forth in the pleadings, without any material variance, otherwise it cannot legally appear that there ever was such a suit depending, wherein the party might be prejudiced in the manner supposed. If the action was by more than one, the false oath must appear to have been prejudicial to all the plaintiffs. Hawk. P. C. b. 1, c. 69, s. 23; Bac. Ab. Perjury, (B.) 2 Russell, 534.

Various provisions for facilitating the punishment of persons guilty of perjury are contained in the 23 Geo. 2, c. 11. By sec. 3, the judges of assize, &c., may direct any witness to be prosecuted for perjury, and may assign counsel, &c. By sections 1 and 2, the indictment [775] in perjury is much simplified, it being made sufficient to set forth the substance of the offence charged upon the defendant; and by what court, or before whom the oath was taken, (averring such court or person to have a competent authority to administer the same,) together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, &c., or any part of any record or proceeding, and without setting forth the commission or authority of the

(1) Resp. v. Newell, 3 Yeates, 413.

court or person before whom the perjury was committed; and so also with regard to indictments for subornation of perjury.

The statutes, imposing the punishment of perjury upon the taking of false oaths in particular matters, are extremely numerous. An abstract of the principal of these will be found in 2 Russell, 526, et seq., and in 2 Deacon, Dig. C. L. 1010.

Punishment.] Perjury is punishable at common law with fine and imprisonment, at the discretion of the court.

By the 2 Geo. 2, c. 25, s. 2, "the more effectually to deter persons from committing wilful and corrupt perjury or subornation of perjury," it is enacted, "that besides the punishment already to be inflicted by law for so great crimes, it shall and may be lawful for the court or judge before whom any person shall be convicted of wilful and corrupt perjury, or subornation of perjury, according to the laws now in being, to order such person to be sent to some house of correction within the same county, for a time not excceding seven years, there to be kept to hard labor during all the said time, or otherwise to be transported to some of his Majesty's plantations beyond the seas, for a term not exceeding seven years, as the court shall think most proper: and thereupon judgment shall be given, that the person convicted shall be committed or transported accordingly, over and beside such punishment as shall be adjudged to be inflicted on such person, agrecable to the laws now in being; and if transportation be directed, the same shall be executed in such manner as is or shall be provided by law for the transportation of felons; and if any person so committed or transported shall voluntary escape or break prison, or return from transportation, before the expiration of the time for which he shall be ordered to be transported as aforesaid, such person being thereof lawfully convicted, shall suffer death as a felon, without benefit of clergy, and shall be tried for such felony in the county where he so escaped, or where he shall be apprehended."

By the 3 Geo. 4, c. 114, persons guilty of perjury or subornation of perjury, may be sentenced to hard labor.

By the 7 Wm. 4 and 1 Vict. c. 23, the punishment of the pillory is abolished.

Postponing trials for perjury.] It is the practice at the Central Criminal Court not to try an indictment for perjury arising out of a civil suit, while that suit is in any way undetermined, except in cases where the [ *776 ] court in which it is pending postpone the decision of it *in order that the criminal charge may be first disposed of. Ashburn's case, 8 C. and P. 50 (a).

SUBORNATION OF PERJURY.

Subornation of perjury at common law, is the procuring a man to take a false oath amounting to perjury, the man actually taking such oath; but if he do not actually take it, the person by whom he was incited is not

(a) Eng. Com. L. Rep. xxxiv. 288.

guilty of subornation of perjury; yet he may be punished by fine and corporal punishment. Hawk. P. C. b. 1, c. 69, s. 10 (1).

Upon an indictment for subornation of perjury, the prosecutor must prove, 1, the inciting by the defendant, and that he knew that the evidence to be given was false; and 2, the taking of the false oath by the witness, &c.

Proof of the incitement.] The incitement may be proved by calling the party who was suborned, and though convicted, he is a competent witness, if he has been pardoned. Reilly's case, 1 Leach, 454. The knowledge of the defendant that the evidence about to be given would be false, will probably appear from the evidence of the indictment, or it may be collected from other circumstances.

Proof of the taking of the false oath.] In general the proof of the the perjury will be the same as upon an indictment for perjury, against the witness who perjured himself; and even if the latter has been convicted, it will not, as it seems, be sufficient, against the party who has suborned him, to prove merely the record of the conviction; but the whole evidence must be gone into as upon the former trial. The defendant was indicted for procuring one John Macdaniel to take a false oath. To prove the taking of the oath by Macdaniel, the record of his conviction for perjury was produced. But it was insisted for the defendant, that the record was not of itself sufficient evidence of the fact; that the jury had a right to be satisfied that such conviction was correct; that the defendant had a right to controvert the guilt of Macdaniel, and that the evidence given on the trial of the latter ought to be submitted to the consideration of the present jury. The Recorder obliged the counsel for the crown to go through the whole case in the same manner as if the jury had been charged to try Macdaniel. Reilly's case, I Leach, 455. Upon this case Mr. Starkie has made the following observations:-This authority seems at first sight to be inconsistent with that class of cases in which it has been held that, as against an accessary before the fact to a felony, the record of the conviction of the principal is evidence of the fact. If the prisoner, instead of being indicted as a principal in procuring, &c., had been indicted as accessary before the fact, in procuring, &c., the record would clearly have been good prima facie evidence of the guilt of *the principal. It is, however, to be recollected, that this doc- [*777] trine rests rather upon technical and artificial grounds, than on any clear and satisfactory principle of evidence. 2 Stark. Ev. 627, 2d ed. It may also be observed, that the indictment for subornation of perjury does not set forth the conviction of the party who took the false oath, but only the preliminary circumstances and the taking of the oath; forming an allegation of the guilt of the party, and not of his conviction; and in Turner's case, 1 Moody, C. C. 347 (a); post, the judges expressed a doubt whether, if an indictment against a receiver stated, not the conviction, but the guilt of the principal felon, the record of the conviction of the principal would be sufficient evidence of the guilt.

(1) Case of Francis & al., 1 Rogers' Rec. 121.

(a) 2 Eng. C. C. 347,