But the preceding case has been questioned, and it seems that materiality is a question of law. The question was, however, left to the jury in this case. A man may be perjured by an oath taken in his own cause. But a false verdict does not come un der the notion of perjury. It is not necessary that the false oath were credited. mind of the judge of the county court in believing or disbelieving the other statements she made in giving her evidence. (w) But where on an indictment for perjury before a coroner a question was raised as to the materiality of the matter sworn, and that question was left to the jury, who convicted; it was held, on a case reserved, that the matter was material and all the judges except one, after fully considering the preceding case, expressed a very strong opinion that is was for the judge to determine whether the matter was material or not. (x) An indictment alleged that on the hearing of an application for an order in bastardy, it became material to inquire whether the prisoner had ever kissed the prosecutrix or had familiarity with her; the prisoner being examined in answer to the evidence given by the prosecutrix, swore that he never had any connection or familiarity with her, and never kissed her. It was objected that the evidence was not material, as it was far too wide in the form in which it was given. Wightman, J., consulted Erle, C. J., and declined to stop the case, and after pointing out the necessity for two witnesses to prove the falsehood of the prisoner's evidence, told the jury: 'Then the question arises whether the parts of his evidence which are assigned as perjury were material to the investigation. It seems to me that they were so, but that is for you. Were they material and wilfully false?' (y) It should be observed, that a man may be as much perjured by an oath taken by him in his own cause, either in an answer in chancery, or in an answer to interrogatories concerning a contempt, or in an affidavit, &c., as by an oath taken by him as a witness in the cause of another person. (2) But the oath must be taken by a person sworn to depose the truth; and a false verdict does not come under the notion of perjury, because the jurors do not swear to depose the truth, but only to judge truly of the depositions of others. (a) A further point of general application may be mentioned, namely, that it appears not to be important whether the false oath were credited or not, or whether the party in whose prejudice it was taken were in the event any ways damaged by it; for the prosecution is not grounded on the damage to the party, but on the abuse of public justice. (b) (w) Reg. v. Lavey, 3 C. & K. 26, A.D. 1850. In every previous case materiality has been treated as a question of law, and it is submitted that it is clearly so; otherwise all the cases in which it has been held that an averment of materiality is unnecessary where the materiality appears on the face of the indictment, are erroneous. In Reg. v. Gibbon, L. & C. 109, Channell, B., said he never could understand Reg. v. Lavey, unless on the ground that there was a question whether the defendant in the County Court action meant to plead or admit the claim. That point having been ascertained, the question of materiality was no longer for the jury.' (x) Reg. v. Courtney, 7 Cox, C. C. 111. A.D. 1856. Ball, J., doubted. It is to be observed that in this case all the judges held the evidence to be material; they did, therefore, treat the question as a matter of law. If they had held it to be a question for the jury, the question would have been whether the evidence warranted the verdict. See this case more fully stated, ante, p. 17. (y) Reg. v. Goddard, 2 F. & F. 361, A.D. 1861. No authority was referred to in this case. Acquittal. (2) 1 Hawk. P. C. c. 69, s. 5. Bac. Abr. tit. Perjury (A). (a) Id. ibid. (b) 1 Hawk. P. C. c. 69, s. 9. Bac. Abr. tit. Perjury (A). In Rex v. Nicholls, Gloucester Sum. Ass. 1838, cor. Patteson, J., the prisoner had on the trial of one Pitt for larceny sworn that he had not given the stolen property to Pitt, but he was contradicted by other witnesses, some cases, In some cases, where a false oath has been taken, the party may False oath inbe prosecuted by indictment at common law, though the offence dictable in may not amount to perjury. Thus it appears to have been holden, though not that any person making or knowingly using any false affidavit assignable as taken abroad (though a perjury could not be assigned on it here) perjury. in order to mislead our courts of justice, is punishable by indictment, as for misdemeanor; and Lord Ellenborough, C. J., said, 'that he had not the least doubt that any person making use of a false instrument in order to pervert the course of justice was guilty of an offence punishable by indictment.' (c) We may now proceed to consider the 5 Eliz. c. 9, and other statutes which relate to the offence of perjury. By the 5 Eliz. c. 9, (d) s. 3, 'all and every such person and persons which shall unlawfully and corruptly procure any witness or witnesses by letters, rewards, promises, or by any other sinister and unlawful labour or means whatsoever, to commit any wilful and corrupt perjury, in any matter or cause whatsoever now depending, or which hereafter shall depend in suit and variance, by any writ, action, bill, complaint, or information, in any wise touching or concerning any lands, tenements, or hereditaments, or any goods, chattels, debts, or damages, in any of the courts before mentioned, (e) or in any of the Queen's Majesty's courts of record, or in any leet, view of frank-pledge or law-day, ancient demesne court, hundred court, court baron, or in the court or courts of the stannary in the counties of Devon and Cornwall; or shall likewise unlawfully and corruptly procure or suborn any witness or witnesses, which shall be sworn to testify in perpetuam rei memoriam; that then every such offender or offenders shall for his, her, or their said offence, being thereof lawfully convicted or attainted, lose and forfeit the sum of forty pounds.' Sec. 4. If it happen any such offender or offenders, so being convicted or attainted as aforesaid, not to have any goods or chattels, lands, or tenements, to the value of forty pounds, that then every such person so being convicted or attainted of any of the offences aforesaid, shall for his or their said offence suffer imprisonment by the space of one half-year, without bail or mainprize, and to stand upon the pillory (ƒ) the space of one whole hour, in some market town, next adjoining to the place where the offence was committed, in open market there, or in the market town itself where the offence was committed.' Statutes relating to perjury. Eliz. c. 9. 5 9, s. 3. Procuring any witness to commit perjury in any matter in suit, by writ, &c., any lands, goods, &c., or concerning when sworn in perpetuam rei memoriam punishable by forfeiture of 407. Such offender not having goods, &c., to the value of 40., to suffer imprisonment. victed not to be received Sec. 5. No person or persons, being so convicted or attainted, Persons conbe from thenceforth received as a witness to be deposed and sworn in any court of record (within England, Wales, or the marches of and the jury disbelieved him, and acquitted Pitt, and he was convicted of perjury in so swearing, and transported for seven years. C. S. G. (c) Omealy v. Newell, 8 East, 364. (d) Made perpetual by the 29 Eliz. c. 5, s. 2, and 21 Jac. 1, c. 28, s. 8. (e) Viz. (as in sec. 1) the King's Courts of Chancery, the Star Chamber, the Whitehall, or elsewhere within any of the King's dominions of England or Wales, or the marches of the same, where any person or persons have or from thenceforth should have authority by virtue of the King's commission, patent, (f) The 1 Vict. c. 23, abolishes the as witnesses until judg ment reversed. Persons committing perjury to forfeit 201. and to be imprisoned for six months; and their oath not to be re ceived in any court of record until judgment reversed. And if such not goods to the value of 201., they are to be set in the pillory, the same), until such time as the judgment given against the said person or persons shall be reversed by attaint (g) 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 this realm.' Sec. 6. '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 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 (g) 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.' Sec. 7. 'If it happen the said offender or offenders so offending offenders have not to have any goods or chattels to the value of twenty pounds, that then he or they to be set in the pillory (h) in some marketplace within the shire, city, or borough, where the said offence shall be committed, by the sheriff or his ministers, if it shall fortune to be without any city or town corporate; and if it happen to be within any such city or town corporate, then by the said head officer or officers of such city or town corporate, or by his or their ministers, and there to have both his ears nailed, and from thenceforth to be discredited and disabled for ever to be sworn in any of the courts of record aforesaid, until such time as the judgment shall be reversed, (g) and thereupon to recover his damages in manner and form before mentioned.' and have their ears nailed; and to be being wit nesses until judgment reversed. Disposal of forfeitures. Trial of offences. The statute further enacts, that one moiety of the said forfeitures shall be to the King, and the other moiety to such person as shall be grieved, hindered, or molested by reason of any of the offences before mentioned, that will sue for the same, &c.; and that as well the judge and judges of every such of the said courts where any such suit shall be, and whereupon any such perjury shall be committed, as also the justices of assize and gaol delivery, and justices of peace at their quarter sessions, both within the liberties and without, may inquire of, hear, and determine all offences The Act is not against the said Act. () And it is provided that the said Act (g) Abolished by the 6 Geo. 4, c. 50, s. 60, and Evidence, post. (h) See note (ƒ), supra. (j) Secs. 8, 9. But see the 5 & 6 Vict. c. 38, post, p. 71. Sec. 10 of 5 Eliz. c. 9, is repealed by the 26 & 27 Vict. c. 125. courts. Nor to restrain other punishment of per jury. shall no way extend to any spiritual or ecclesiastical court, but to extend to that every such offender, as shall offend in term as aforesaid, shall spiritual be punished by such usual and ordinary laws as are used in the said courts. (k) And it is also provided, that the said statute shall not restrain the authority of any judge having absolute power to punish perjury before the making thereof; but that every such judge may proceed in the punishment of all offences punishable before the making of the said statute, in such wise as they might have done and used to do to all purposes, so that they set not on the offender less punishment than is contained in the said Act. (1) ishable by imprisonment and hard labour or by transportation for seven years. An important statute relating to the punishment of perjury is 2 Geo. 2, the 2 Geo. 2, c. 25, s. 2, which, in order the more effectually to deter persons from committing wilful and corrupt perjury, or subor- subornation of nation of perjury, enacts, 'that besides the punishment already to perjury made be inflicted by law for so great crimes, it shall and may be lawful further punfor 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 (m) 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, (n) 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 com- Offenders so mitted or transported shall voluntarily escape or break prison, or committed or return from transportation before the expiration of the time for transported, which he shall be ordered to be transported as aforesaid, such breaking person, being thereof lawfully convicted, shall suffer death as a prison, or refelon, without benefit of clergy, and shall be tried for such felony turning from in the county where he so escaped, or where he shall be apprehended.' Besides these statutes, there are a great number relating to perjury committed in particular proceedings and transactions, and by particular persons, some of which it will be proper to notice in this place. Enactments of this description are to be met with in so many and such various statutes that it is not presumed but that many of them have not come within the editor's observation. It should first be mentioned that the false affirmation, or declaration, of any of the people called Quakers, made instead of an oath, will subject the party to the penalties of perjury. The 7 & 8 Will. 3, c. 34, except ss. 4 and 5, is repealed by (k) Sec. 11. (7) Sec. 13. (m) The 3 Geo. 4, c. 114, provides that any person convicted of perjury or subornation of perjury may be sentenced to imprisonment with hard labour for any term not exceeding the term for which the Court may imprison for such offences, in addition to, or in lieu of, any other pun. (n) Now penal servitude for any term See escaping or transportation. Statutes relating to perjury committed in particular pro ceedings, &c. False affirma tions of Quakers. 3 & 4 Will. 4, c. 49. Quakers and Moravians. Separatists. 1 & 2 Vict. c. 77. Per been Quakers and Mora. 30 & 31 Vict. c. 59 (the Statute Law Revision Act, 1867). The 8 Geo. 1, c. 6, relates to the declaration of fidelity and abjuration oath to be made by Quakers; and by sec. 2 of that Act persons wilfully making false declarations under that Act are liable to the same penalties, &c., as if they had been found guilty of perjury. Sec. 1 of this Act is in part repealed by 30 & 31 Vict. c. 59. The 22 Geo. 2, c. 46, s. 36, is repealed by the above Act, 30 & 31 Vict. c. 59. The 9 Geo. 4, c. 32, s. 1, is repealed by 36 & 37 Vict. c. 91, (the Statute Law Revision Act, 1873). The 3 & 4 Will. 4, c. 49, s. 1, enacts that 'every person of the persuasion of the people called Quakers and every Moravian be permitted to make his or her solemn affirmation or declaration, instead of taking an oath, in all places and for all purposes whatsoever where an oath is or shall be required, either by the common law, or by any Act of Parliament already made, or hereafter to be made:' and provides that if any such person making such solemn affirmation (o) or declaration shall be lawfully convicted, wilfully, falsely, and corruptly to have affirmed or declared any matter or thing, which if the same had been (p) in the usual form would have amounted to wilful and corrupt perjury, he or she shall incur the same penalties and forfeitures as by the laws and statutes of this realm are enacted against persons convicted of wilful and corrupt perjury.' By 3 & 4 Will. 4, c. 82 (entitled an Act to allow the people called Separatists to make a solemn affirmation and declaration instead of an oath), s. 2, it is enacted, that if any person making such (pp) solemn affirmation or declaration shall, in fact, not be one of the people commonly called Separatists, or shall wilfully, falsely, and corruptly affirm or declare any other matter or thing which, if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so offending shall incur the same penalties and forfeitures as by the laws and statutes of this kingdom are or may be enacted or provided against persons convicted of wilful and corrupt perjury. By the 1 & 2 Vict. c. 77, 'it shall be lawful for any person who shall have been a Quaker or Moravian to make solemn affirmasons who have tion and declaration in lieu of taking an oath, as fully as it would be lawful for any such person to do if he still remained a member of either of such religious denominations of Christians,' and persons guilty of making false affirmations or declarations are liable to the same punishments as persons guilty of perjury, in the same manner as in the preceding statute. (q) vians. 1 & 2 Vict. c. 105. All persons bound by the oath taken. By the 1 & 2 Vict. c. 105, 'in all cases in which an oath may lawfully be and shall have been administered to any person either as a juryman or a witness, or a deponent in any proceeding, civil (0) The form of affirmation given by (pp) See sec. 1, post, Evidence. (2) The form of affirmation given by this statute is, 'I, A. B., having been one of the people called Quakers [or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may be], and entertaining conscientious objections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm.' This statute was passed in consequence of Reg. v. Doran, 2 Moo. C. C. R. 37. See R. v. Mooney, 5 Cox, C. C. 319. |