ecclesiasti tical court or courts within this realm of England or any court! Wales, or the marches of the same; but that all and every cal. such offender or offenders as shall offend in form aforesaid, shall and may be punished by such usual and ordinary laws, as heretofore hath been, and is yet used and frequented in the said ecclesiastical courts, any thing in this present act contained to the contrary in any wise notwithstanding. XII. Provided also, and be it further enacted by the Process served upon authority aforesaid, that if any person or persons, upon witnesses to whom any process out of any of the courts of record testify. within this realm or Wales shall be served, to testify or depose concerning any cause or matter depending in any of the same courts, and having tendered unto him or them, according to his or their countenance or calling, such reasonable sums of money for his or their costs and charges, as, having regard to the distance of the places, is necessary to be allowed in that behalf, do not appear according to the tenor of the said process, having not a lawful and reasonable let or impediment to the contrary; that then the party making default, to lose and forfeit for every such offence ten pounds, and to yield such further recompense to the party grieved, as by the discretion of the judge of the court, out of which the said process shall be awarded, according to the loss and hindrance that the party which procured the said process shall sustain, by reason of the non-appearance of the said witness or witnesses; the said several sums to be recovered by the party so grieved against the offender or offenders, by action of debt, bill, plaint, or information, in any of the queen's majesty's courts of record, in which no wager of law, essoin, or protection to be allowed. XIII. [Not to abridge the authority to punish perjury, given by the statute of 11 Hen. 7, c. 25, to the chancellor, &c.] Note. It appears, by comparing the second, third, and sixth sections of this statute, that the makers of it considered the subornation of perjury greater than the perjury itself. It has, therefore, been held, that a man cannot be guilty of perjury within this statute in any case wherein he is not guilty of subornation within it; and that, therefore, as the clause concerning subornation does not extend to perjury on an indictment or criminal information, the clause concerning perjury must come under the same restriction: 2 Haw. P. C. c. 27, s. 19; Bac. Abr. It Perjury, B. From reasons of a si- the point in issue : id. s. 23. Where a witness for the king swears falsely, he cannot be indicted on this sta subornation. tute: Buxton v. Gouch, 3 Salk. 269. For more on the subject of perjury, see the note post, p. 474. 2 Geo. 2, c. 25, [made perpetual by 9 Geo. 2, c. 18.] Penalty for II. The more effectually to deter persons from comperjury and mitting wilful and corrupt perjury, or subornation of perjury, be it enacted, &c. 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 labour 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, agreeable 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 voluntarily 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. 23 Geo. 2, c. 11. I. Whereas, by reason of difficulties attending prosecutions for perjury and subornation of perjury, those heinous crimes have frequently gone unpunished, whereby wicked and evil-disposed persons are daily more and more emboldened to commit the same, to the great dishonour of God, and manifest let and hindrance of justice; for reWhat shall medy whereof, be it enacted, &c. that in every informa be sufficient tion or indictment to be prosecuted against any person for in indictments of perjury. wilful and corrupt perjury, it shall be 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, or persons, to have a competent authority to administer the same), together with the proper averment or averments, to falsify the matter or matters wherein the perjury or perjuries is or are assigned; without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, other than as aforesaid; and without setting forth the commission or authority of the court, or person or persons before whom the perjury was committed; any law, usage, or custom to the contrary notwithstanding. tions, &c., II. And be it further enacted by the authority aforesaid, Informathat in every information or indictment for subornation of for suborna. perjury, or for corrupt bargaining or contracting with tion of perothers to commit wilful and corrupt perjury, it shall be suf- jury. ficient to set forth the substance of the offence charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, and without setting forth the commission or authority of the court, or person or persons before whom the perjury was committed, or was agreed or promised to be committed; any law usage, or custom to the contrary notwithstanding. may direct mined be the prosecu'or coun III. And, the better to prevent great offenders from escaping punishment by reason of the expense attending such prosecutions: be it further enacted by the authority aforesaid, that it shall and may be lawful to and for any of his Justices of majesty's justices of assize, or nisi prius, or general gaol assize, &c. delivery, or of any of the great sessions of the princi- prosecutions pality of Wales, or of the counties palatine; and they are against perhereby authorized (sitting the court, or within twenty. sons exafour hours after) to direct any person examined as a fore them witness upon any trial before him or them, to be pro- being guilty secuted for the said offence of perjury, in case there shall of perjury, appear to him or them a reasonable cause for such prosecution, and that it shall appear to him or them proper so to do; and to assign the party injured, or other person and assign undertaking such prosecution, counsel, who shall and are hereby required to do their duty without any fee, gratuity, sel. or reward, for the same; and every such prosecution, so The prosedirected as aforesaid, shall be carried on without payment cution to be of any tax or duty, and without payment of any fees in carried on court, or to any officer of the court, who might otherwise without claim or demand the same; and the clerk of assize, or his associate or prothonotary, or other proper officer of the court (who shall be attending when such prosecution is di- give the rected) shall, and is hereby required, without any fee or prosecutor reward, to give the party injured, or other person under- a certificate. taking such prosecution, a certificate of the same being directed, together with the names of the counsel assigned him by the court; which certificate shall in all cases be deemed sufficient proof of such prosecution having been directed as aforesaid, provided that no such direction or fees. The clerk of assize to certificate shall be given in evidence upon any trial to be had against any person upon a prosecution so directed as aforesaid. Note. The act declares, that in an indictment for perjury it shall be sufficient to set forth the following matters: The substance of the offence-by what court, or before whom, the oath was taken-an averment that such court or person has a competent authority to administer the same an averment to falsify the matter wherein the perjury is assigned. It will, therefore, be convenient to consider the indictment for perjury under these heads. The substance of the offence consists in the actual false swearing, together with those circumstances which, of necessity, accompany the act, as the time, place, &c., and those which, in judgment of law, make the offence perjury. 1. As to the false swearing: it seems that in all cases it should be averred positively and distinctly that the defendant was sworn, and deposed, &c. Therefore, in an indictment in which perjury was, by the first count, charged to have been committed at a trial therein mentioned, and another count alleged that, at the trial, the defendant was found guilty, "by means of the false and material testimony of the defendant in the first count mentioned," and that a rule nisi for a new trial was granted, and that the defendant, knowingly, falsely, wilfully, and corruptly, made affidavit that the evidence given by him at the trial was true, "whereas it was false in the particulars in the first count assigned and set forth;" this latter count was held bad, for not averring distinctly that the defendant was sworn as a witness, and deposed to certain facts at the trial, instead of leaving it to be taken by intendment: R. v. Stevens, 5 B. & C. 246. But it should be remarked that, in this case, the first count was also held to be bad: see, upon the same point, R. v. Richards, 7 D. & R. 665. However, it is sufficient to allege in the indictment that the defendant was duly sworn: R. v. M'Carthur, Peake, 155. And where the indictment averred that the defendant was sworn on the holy gospel of God, proof that the defendant was sworn and examined as a witness was held sufficient to support the averment: R. v. Rowley, R. & M. N. P. C. 302. In a case where it was averred that he was sworn on the gospels, and he appeared to have been sworn according to the custom of his own country, this was considered as a variance, which would have been fatal had not the indictment been saved, by proof that he was previously sworn in the ordinary mode, ib.: sed. qu., for how can perjury be assigned upon an oath which the defendant conscientiously does not consider binding? It is proper to aver that the defendant falsely swore, &c., 2 M. & S. 385; but an indictment at common law, alleging that the defendant falsely, maliciously, wickedly, and corruptly swore, &c., without saying wilfully, has been held to be sufficient, on the grounds that the former words include the latter; but the word wilfully is essential on an indictment on the statute of Elizabeth: Cox's case, 1 Leach, 83, 71, 4th ed.. But the words wilfully and corruptly cannot both be omitted in the indictment: R. v. Stevens, 5 B. & C. 246. 2. The time.-The time is sometimes material and necessary to be laid with precision, and sometimes not: R v. Aylett, 1 T. R. 69. Thus, where an indictment for perjury, in answer in the Exchequer, alleged that the bill was filed on the an 1st day of December, but, on its production, it appeared to be entitled generally of the preceding Michaelmas term, as is the practice when a bill is filed in the interval between two terms, this was held to be no variance, because the day was not alleged as part of the record: R. v. Hucks, 1 Stark. 521. But, where the time is material with reference to the crime of the defendant, as, for instance, with reference to his previous knowledge of a fact, which knowledge he subsequently denies on oath, the time must be proved as laid. Therefore, where the assignments of perjury were alleged in this form, "whereas, in truth and in fact, the said defendant, at the time of effecting the said policy, that is to say, a certain policy of insurance, purporting to have been underwritten by Kite, by his agent Meyer, on the 13th of August, 1807, &c. (and by other writers specified in the indictment), well knew, &c. ;" and, on the production of the policy, it appeared that it had been underwritten by Meyer for Kite on the 15th of August, the variance was held fatal: R. v. Hucks, 1 Stark. 524. 3. The place. The place where the perjury is alleged to have been committed must be that to which a venire may reasonably be awarded. Therefore, an indictment for perjury, laying the offence to have been committed "at the Guildhall of the city of London," is bad: Harris's case, 2 Leach, 929. For an enumeration of the places from which a venue may come, see 2 Haw. P. C. 182. But so long as the indictment is laid within the proper county, the parish is immaterial: R. v. Taylor, Holt, 534. And if a proper venue be laid to the very fact of taking the false oath, that is sufficient, without stating where the court was held at the time that the necessary previous proceedings were had in the same matter: R. v. Crossley, 7 T. R. 315. 4. The circumstances which, injudg ment of law, make the offence perjury.-These are not merely implied under the words "substance of the offence," but many of them are expressly mentioned by the act. Of those which are implied, the most essential appears to be that the matter sworn to was material to the question depending: R. v. Aylett, 1 T. R. 19. But, though an allegation of this fact is essential, yet it is not necessary to set forth so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned; it is sufficient to allege generally that the particular question became a material question: R. v. Dowlin, 5 T. R. 311. On the other hand, if the materiality appear on the record, it is unnecessary to aver it, T. P. C. 139, though it is most usual to do so. By what court, or before whom the oath was taken; an averment that such court or person has a competent authority to administer the same.That the oath was taken before a court of competent jurisdiction is, therefore, one of those circumstances necessary to constitute perjury, which is expressly alluded to by the act. What are competent courts for the purpose of administering oaths is a point which will be noticed presently. An indictment for perjury in a cause tried at the assizes has been holden good, although it alleged the oath to have been taken before one only of the judges in the commission, whereas the names of both judges were, as usual, inserted in the nisi-prius record: R. v. Alford, 1 Leach, 150. But in a case where it appeared that there were two commissions for a place, one to deliver the gaols, and the other assigning the justices "to be as well justices in eyre as justices to hold |
