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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. o. 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 exceeding 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 seren 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 i 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 path.] 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, 1 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 indictinent 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.
Offence at common law .
779 Stat. 11 & 12 Wm. 3, c:7
- 778 Proof with regard to the persons guilty • 780 8 Geo. 1, c. 24
- 778 | Proof with regard to accessaries. - 780 18 Geo. 2, c. 30 · 779 | Venue and trial
781 32 Geo. 2, c. 25
779 Punishment under the 7 Wm. 4 and 1 5 Geg. 4, c. 113, dealing in slaves - 779 Vict. c. 88
Offence at common law.] The offence of piracy at common law consists in committing those acts of robbery and depredation upon the high seas, which, if committed on land, would have amounted to felony there; though it was no felony at common law (1). 2 East, P. C. 796; 4 BI. Com. 72; Hawk. P. C. c. 37, s. 4. Before the 28 Hen. 8, c. 15, the offence was only punishable by the civil law, and that statute does not render it a felony. By other statutes, however, which will be presently noticed, the offence is made felony, and the nature of the offence which shall constitute piracy is specifically described.
“The offence of piracy at common law is nothing more than robbery ( *778 ) upon the high seas; but by statutes passed at various times, *and still in force, many artificial offences have been created, which are to be deemed to amount to piracy.” Report of Comm. of Crim. Law.
Statute 11 & 12 Wm. 3, c. 7.) By the 11 & 12 Wm. 3, c. 7, s. 8, “if any of his Majesty's natural born subjects or denizens of this kingdom, shall commit any piracy, or robbery, or any act of hostility against others, his Majesty's subjects upon the sea, under color of any commission from any foreign prince or state, or pretence of authority from any person whatsoever, such offender or offenders shall be deemed, adjudged, and taken to be pirates, felons, and robbers, &c."
By s. 9, "if any commander, or master of any ship, or any seaman or mariner, shall in any place where the admiral has jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his, or their ship or ships, or any barge, boat, ordnance, ammunition, goods, or merchandise, or yield them up voluntarily to any pirate; or shall bring any seducing message from any pirate, enemy, or rebel; or consult, combine, or confederate with, or attempt, or endeavor to corrupt any commander, master, officer, or mariner, to yield up, or run away with any ship, goods, or merchandise, or turn pirates, or go over to pirates; or if any person shall lay violent hands on his commander, whereby to binder him from fighting in defence of his ship, and goods committed to his trust, or shall confine his master, or make, or endeavor to make a revolt in his ship, he shall be adjudged, deemed, and taken to be a pirate, felon, and robber, [and suffer death,” &c.]
(1) U. S. o. Chapels & al., 3 Wheeler's C. C. 205. 1 Kent's Com. Lect. ix. Mr. Duponceau's Translation of Bynkershock on War, c. 17, p. 128, n. Bass' case, 4 Rogers' Rec. 161. 2 Wheeler's C. C. Preface, p. xxvii.
Upon the above section (9) of the 11 & 12 Wm. 3, c. 7, it has been decided by the twelve judges, that the making, or endeavoring to make a revolt on board a ship, with a view to procure a redress of what the prisoners may think grievances, and without any intent to run away with the ship, or to commit any act of piracy, is an offence within the statute. Hastings' case, 1 Moody, C. C. 82 (a).
Stat. 8 Geo. 1, c. 24.] By the 8 Geo. 1, c. 24, s. 1, "in case any person or persons belonging to any ship, or vessel whatsoever, upon meeting any merchant ship, or vessel on the high seas, or in any port, haven, or creek whatsoever, shall forcibly board or enter into such sbip or vessel, and though they do not seize or carry off such ship or vessel, shall throw overboard, or destroy any part of the goods or merchandize belonging to such ship or vessel, the person or persons guilty thercof, shall in all respects be deemed and punished as pirates aforesaid.”
And by the same section, if any commander or master of any ship or vessel, or any other person or persons shall anywise trade with any pirate by truck, barter, exchange, or in any other manner, or shall furnish any pirate, felon, or robber upon the seas, with any ammunition, provision, or stores of any kind; or shall fit out any ship or vessel knowingly, and with a design to trade with any *pirate, felon, or robber upon the [ *779 ] seas; or if any person or persons shall anyways consult, combine, confederate, or correspond with any pirate, felon, or robber on the seas, knowing him to be guilty of such piracy, felony, or robbery, every such offender shall be deemed and adjudged guilty of piracy, felony, and robbery.
Statute 18 Geo. 2, c. 30.) By the 18 Geo. 2, c. 30, all persons being natural born subjects or denizens of his Majesty, who, during any war, shall commit any hostilities upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, against his Majesty's subjects, by virtue or under color of any commission from any of his Majesty's enemies, or shall be any other ways adherent, or giving aid or comfort to his Majesty's enenies upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, &c., may be tried as pirates, felons, and robbers in the Court of Admiralty, in the same manner as pirates, &c., are by the said act (11 & 12 W.3,) directed to be tried, and shall suffer death.]
Under this statute, it has been held, that persons adhering to the King's enemies by cruising in their ships, may be tried as pirates under the usual commission granted by virtue of the statute 28 Hen. 8. Evans's case, 2 East, P. C. 798.
Stat. 32 Geo. 2, c. 25.) By the 32 Geo. 2, c. 25, s. 12, in case any commander of a private ship or vessel of war, duly commissioned by the 29 Geo. 2, c. 34, or by that act, shall agree with any commander or other person belonging to any neutral or other ship or vessel (except those of bis Majesty's declared enemies) for the ransom of any such neutral or other ship or vessel, or cargo, after the same has been taken as a prize, and shall, in pursuance of such agreement, quit, set at liberty, or discharge any such prize, instead of bringing it into some port of bis Majesty's domin
(a) 2 Eng. C. C. 82.