acted from corrupt or malicious motives, his protection is at an end.1

4. The falsehood must be in a matter pertinent to the issue, and competent to be asked of the witness; but if this be the case, it matters not in how trivial a matter the falsehood may consist, or how far from the original relevant matter the witness may have been led before he makes the false affirmation.

It is laid down by Mr Hume, that the oath which is the foundation of a charge of perjury must be material to the point at issue; while it is maintained by Burnett,3 that it is not essential in every case that the falsehood challenged be material to the matter at issue, or to the point which is in controversy. The truth seems to be, that it is only essential to perjury that the subject matter of the oath should have commenced with a relevant and competent subject of investigation; because it often happens that the most important contradictions or falsehoods are elicited from witnesses in the course of an examination, in which they have been purposely led from the matters in which they had prepared a false story, to others in which, from want of such previous preparation, this falsehood is at once apparent. It is impossible, too, to say, that any thing is irrelevant to the question at issue, which goes to convict the witness of concealment or falsehood; because the maxim immediately applies, falsum in uno, falsum in omnibus, and the witness' whole testimony is set aside in consequence of his perjury, even in an inconsiderable particular. Mr Hume's doctrine accordingly has not been followed in later times, since the principles of evidence, from the great increase of criminal practice, have come to be better understood. Thus, in the case of Elizabeth Muir, Glasgow, spring 1830, the pannel was convicted, and sentenced to seven years' transportation, for perjury, the preceding Circuit at Glasgow. She had been adduced as a witness in exculpation, and had sworn that the police-officers who apprehended the prisoner then at the bar had got drunk, and conducted themselves in the most improper manner during and subsequent to her apprehension; a fact nowise mate

1 1 Burnett, 205.-2 Hume, i. 369.3 Burnett, 206.

rial to the prisoner's case in itself, farther than that her falsehood in it went to destroy her credibility in other matters which she deponed to, and which really were essential to the first prisoner's defence. In like manner, it is unquestionable that perjury may be committed by a false oath upon an examination in initialibus, as on the most material fact in causa; for what can be more material to the issue of a cause, than the conviction of a witness of perjury in the questions relating to the purity of the evidence which he is to give.2

There is one exception, however, to this rule, where the matter on which the perjury was alleged to have been committed was such, as it was not competent to examine the witness upon, however material to the issue; for law cannot lend the terrors of its punishment to protect a party in pursuing an incompetent and illegal train of investigation. On this ground it was that the decision went in the case of Patrick M'Curly, 4th August 1777, who had been precognosced with a view to a criminal trial, and afterwards, as often happens, had given a different account of the matter on the trial itself. Towards the close of his deposition, he was asked whether he had ever given a different account of the matter, and he swore he had not. Upon this last falsehood he was indicted for perjury; and after a debate on the relevancy, the prosecutor abandoned the charge; nor, in truth, does it seem possible to maintain an indictment for perjury in such a case, where the question put was clearly incompetent, and the witness would have been entitled to decline answering it.3

5. The oath must have been before a judge or commissioner legally entitled to put it, and in relation to a matter involved in some judicial process or investigation.

How great soever may be the guilt, morally speaking, of one who calls God to witness the statements of a falsehood, even of the most inconsiderable kind, and of his own accord, it is not to such instances of depravity that the law of perjury relates. What it principally looks to in this matter is the interfering with the course of justice, and corrupting the sources of judicial investigation. The oath, therefore, must have been emitted 1 Unreported.—2 Burnett, 206; Hume, i. 369.—3 Hume, i. 370; Burnett, 206. Burnett, 205.

4

before some magistrate, judge, or other person who has authority or commission to receive or exact it; and it must relate either to a depending process, or some matter of legal or judicial investigation.2 The most solemn asseveration, accompanied by oaths before a private person, or any voluntary affidavits, even to the most important facts before a magistrate, are not the fit subjects of prosecutions for perjury.3

No indictment for perjury can be maintained on account of what is sworn in a church court; for an oath in ecclesiastical proceedings is not properly a judicial oath, the Court having no cognizance as to its civil effects; and though it may be afterwards founded on as an article of evidence in a civil court, its not being taken coram judici is an objection to its being made the foundation of an indictment for perjury. In the case of Barclay, 25th April 1601, this prisoner, who had falsely sworn before the Presbytery of Edinburgh, was only sentenced on the ground of his having come in the King's will, in other words, waived all objections to the competency of the proceeding; and in the later case of J. and W. Wilson, Aberdeen, autumn 1803, where the pannels were charged with perjury in consequence of a false oath before a kirk-session, regarding a bastard child, the diet was deserted in consequence of the court entertaining serious doubts as to the relevancy of the charge.1

It is not essential, however, to a charge of perjury, that the matter concerning which the oath is emitted be properly speaking a depending process. It is the same thing if the oath took place in the course of a judicial investigation or proceeding, in which, for certain civil effects, the law requires an oath to be taken. Thus prosecutions have repeatedly been sustained for perjury in the statutory oaths emitted by bankrupts before the Sheriff, which are declared indeed by the Sequestration act to be under the sanction of perjury; as, for example, in the case of J. Baillie, 19th May 1823,5 and of John Carter, July 20. 1831,6 both of whom were transported seven years. So also, on 16th July 1824, William Hay was indicted at common law for perjury, committed by falsely taking the oath prescribed in the Sequestration act, and being convicted, was transported seven years.7 In like manner, in the case of Matthew Steele, 10th February 1623, who was indicted for perjury at common law, and under

1 Hume, i. 370.-2 Burnett, 205.-3 Hume, i. 370; Burnett, 205.- Ibid. 206; Hume, i. 371.—5 Ibid. i. 374.-6 Unreported. Hume, i. 374.

the Sequestration act, for having falsely emitted an affidavit to a claim of debt before a magistrate, the indictment was found relevant at common law, but not under the statute, because it did not set forth that Steele was a creditor on the bankrupt estate.1 On the same principle, the oath of bribery and of trust and possession at elections, a debtor's oath to obtain the benefit of the act of grace, a cessio bonorum, or a discharge of debts under the Sequestration act, a suspender's oath at passing his bill on juratory caution, are all oaths which are emitted under the sanction of perjury. For in all these cases the swearer has taken the oath by the appointment of the law, and in a matter of judicial proceeding in which others besides himself are interested. On the same principle, a prosecution for perjury may be founded on falsehood contained in any of the numerous oaths required in revenue matters, or in giving up a false inventory of moveable or heritable property in the Commissary or Sheriff Courts or the like. In all cases, in short, where an oath is required and imposed by law, either as a safeguard to the revenue, or for the protection of the interest of a number of other persons, or as a necessary step towards making effectual a legal right, and the oath has been emitted before the person authorised and appointed to receive it, falsehood wilfully committed is considered as the fit subject of the pains of perjury. In the case accordingly of Andrew Paterson, March 16. 1825, a prosecution for perjury was founded on a false oath emitted by a soldier before a Justice of Peace, in order to obtain prize-money for enlisting in a new regiment, in which he falsely declared that he was not already in the service; and although the prosecutor, in consideration of a confession, withdrew the charge of forgery, and limited the case to the fraud libelled, the Court had no doubts as to the relevancy of the former charge. In like manner, in the case of William Taylor, Perth, September 1826, an indictment for perjury was sustained, grounded on falsehood, deponed to in the course of an oath emitted before a magistrate of Dundee, with a view to obtain the benefit of the act of grace. And at Perth, September 1824, Andrew Hay was outlawed on a charge of fraud and perjury, committed by emitting false affidavits to fraudulent claims of debt, with a view to their being used in a sequestration; a

1 Hume, i. 374.-2 Ibid.; Burnett, 207.-3 Hume, i. 375.- Ibid.; Burnett, 2075 Ibid. Unreported. Unreported.

proceeding which, independently of being clearly perjury at common law, is expressly declared to be such by the Sequestration act, 54th Geo. III. c. 137.

6. Perjury may be committed on a reference to oath, or in an oath put ex officio judicis to elicit the truth, equally as in one administered in the ordinary course of legal procedure.

It is triti juris that a reference to oath is the termination of strife; but if the referee has sworn falsely, he is liable to a prosecution for perjury.1 Accordingly, in the case of Montgomery, November 1715, an indictment for perjury was sustained for what was deponed to on a reference to oath; and the like in the case of Kilpatrick, Dumfries, April 1755, where the objection that an indictment for perjury could not be maintained, for what was deponed to parte referente was repelled.2

The same holds with false oaths, emitted in pursuance of interrogations put ex officio judicis, for the discovery of truth.3 But an oath in litem cannot be made the foundation of a prosecution for perjury, unless the falsehood was so gross as to place the matter beyond a doubt; because such an oath is to a certain degree on a subject on which allowance must be made for difference of opinion. Accordingly, in the case of Robertson, 19th September 1709, where an act of perjury was founded on an oath in litem, contrasted with a prior oath, the Court found the libel, as libelled on the instructions produced, not relevant; in other words, that the contradiction or falsehood founded on was not so gross as to warrant such a prosecution.5 In the case of Thomas Somerville, 16th February 1813, the pannel had, in a suspension, swore on a reference that he had given full value for a bill, and, in consequence, the letters were found orderly proceeded. But the suspenders insisted against him in a criminal action, raised with concurrence of the public prosecutor, concluding for the pains of law, damages and expenses; and the perjury of the first oath having been established prout de jure, the Court sentenced the pannel to six months' imprisonment, the pillory, and £150 of damages, besides expenses, which in effect corrected the iniquity of the false oath,

1 Burnett, 206; Hume, i. 374.-2 Burnett, 207; Hume, i. 374.-3 Ibid.Burnett, 207.-5 Ibid.