the objection was that there was only oath against oath. It was true the first oath was not made in a court of justice, but if that objection prevailed the father alone could convict the husband of perjury, but the husband could not alone convict the father if he falsely swore in court that he had not consented.

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. But it is not relevant to infer perjury in so loose a manner; the prosecutor must 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. Crim. 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. A party cannot be convicted (says Mr. Alison) of perjury, upon the evidence merely of previous or subsequent 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 [*861 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.

Statutes relating to perjury. The principal statutory enactment respecting perjury is the 5 Eliz. c. 9 (the 28 Eliz. c. 1, I.), the operation of which is, however, more confined than that of the common law; and as it does not (see the 5 Eliz. c. 9, s. 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 s. 3, the procuring any witness to commit perjury in any matter in suit, by writ, etc., concerning any lands, goods, etc., or when sworn in perpetuam rei memoriam. is punishable by the forfeiture of forty pounds.

Sect. 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.

Sect. 6 enacts, that if any person or persons, either by the subornation, unlawful procurement, sinister persuasion, 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 court of record within this realm of England and 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.

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, etc.," no perjury upon an indictment or criminal information can bring a man within the statute. Hawk. *862] *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. 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); 3 Russ. Cri. 33, 5th ed.

Various provisions for facilitating the punishment of persons guilty of perjury are contained in the 14 & 15 Vict. c. 100, sect. 19, which provides that any court, judge, justice, etc., may direct a person guilty of perjury in any evidence, etc., to be prosecuted. By sect. 20, indictments for perjury are simplified. By sect. 21 an indictment for subornation of perjury is simplified. See these sections in the Appendix.

Sect. 22 enacts that "a certificate containing the substance and effect only (omitting the formal part) of the indictment and trial for any felony or misdemeanor, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where such indictment was tried, or by the deputy of such clerk or other officer (for which certificate a fee of six shillings and eightpence and no more shall be demanded or taken), shall, upon the trial of any indictment for perjury or subornation of perjury, be sufficient evidence of the trial of such indictment for felony or misdemeanor, without proof of the signature or official character of the person appearing to have signed the same."

By the 22 & 23 Vict. c. 17, supra, p. 192, no indictment for perjury or subornation of perjury is to be preferred without previous autho

rization.

But see now 30 & 31 Vict. c. 35, s. 1, in Appendix.

A person having given evidence at a trial, the judge did not give any direction to prosecute him for perjury. No application was made to the judge for his consent at the time of the alleged perjury, but some days afterwards the prosecutor's attorney went before the judge without summons or affidavit, and laid before him a newspaper containing a report of the trial. The judge wrote upon it, "I consent to the prosecution of this case," and signed his name; this was held to be a sufficient consent within the Act. R. v. Bray, 3 B. & S. 255, 113 E. C. L.; 32 L. J., M. C. 11.

In various statutes clauses have been inserted whereby the giving of false evidence in respect of the matters with which the statute deals is made perjury or is made punishable as perjury.

*Thus by the 5 & 6 Will. 4, c. 62, ss. 5, 21, and see ante, P. [*863 490, false declarations relating to the revenue and other matters are made misdemeanors. So also by the 27 & 28 Vict. c. 19, persons giving false evidence upon courts martial are deemed guilty of perjury (see R. v. Heane, ante, p. 843). So by the Debtors Act (32 &

33 Vict. c. 62, s. 14), a creditor making false statements is guilty of a misdemeanor. So under the Marriage Acts persons making false declarations are liable to the penalties of perjury (see 19 & 20 Vict. c. 119, ss. 2,18). False evidence given on oath before a referee appointed under the Agricultural Holdings Act, 1875 (38 & 39 Vict. c. 92) is by s. 26 made the subject of perjury; also under the Agricultural Holdings Act, 1883 (46 & 47 Vict. c. 61, see sect. 13); also by parliamentary candidate or election agent, under 46 & 47 Vict. c. 51, s. 33 (7). So also before Public Works Loan Commissioners under 38 & 39 Vict. c. 89, s. 44. Also before inquiries held by direction of the Commissioners of Customs, 39 & 40 Vict. c. 36, s. 36. (And see also "False Declarations," ante, p. 490.)

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 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."

By the 3 Geo. 4, c. 114 (the 7 Geo. 4, c. 9, I.), persons guilty of perjury or subornation of perjury may be sentenced to hard labor. By the 7 Will. 4 & 1 Vict. c. 23 (U. K.), 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 court in which it is pending postpone the decision of it, in order that the criminal charge may be first disposed of. R. v. Ashburn, 8 C. & P. 50, 34 E. C. L.

*SUBORNATION OF PERJURY.

[*864

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

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, etc. See now 14 & 15 Vict. c. 100, s. 21, ante, p. 862, and see the Statutes in Appendix.

Proof of the incitement. The incitement may be proved by calling the party who was suborned. 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 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 had 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. R. v.

1Case of Francis et al., 1 Rog. Rec. 121. Subornation of perjury may be proved by the testimony of one witness. Commonwealth v. Douglass, 5 Metc. 241. Though a party who is charged with subornation of perjury, knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would wilfully testify to a fact knowing it to be false, he cannot be convicted of the crime charged. To constitute subornation of perjury, the party charged must procure the commission of the perjury by inciting, instigating or persuading the witness to commit the crime. Commonwealth v. Douglass, 5 Metc. 241. On the trial of A. for suborning B. to commit perjury on a former trial of A. for another offence, a witness testified that B. on that former trial, swore that he came from L. as a witness on that trial in consequence of a letter written to him by A. Held, that, although this was not evidence that A. wrote such letter to B., yet it was evidence that B. so testified in the presence of A., and as A. thereby had an opportunity to prove, but did not prove, on the trial for suborning B., in what manner or by whose agency B. came from L., such testimony of B. might be considered by the jury in connection with the other evidence in the case. Id. S.