and taken with or inadvertency, or a mistake of the true state of the question, it some degree of cannot be considered to amount to voluntary and corrupt per deliberation. A man may for perjury in So also if he falsely swears that he thinks a fact to be true. The oath must be false. The oath must be taken in a judicial proceeding. jury. (d) It has been said that no oath will amount to perjury unless it be sworn absolutely and directly, and, therefore, that he who swears a thing according as he thinks, remembers, or believes, cannot, in respect of such an oath, be found guilty of perjury. (e) But De Grey, C. J., appears to have laid down a different doctrine. (f) And Lord Mansfield, C. J., is stated to have said, 'It is certainly true that a man may be indicted for perjury in swearing that he believes a fact to be true which he must know to be false.' (g) It is further said that, upon this question being agitated in the Court of Common Pleas, all the judges were unanimous that belief was to be considered as an absolute term, and that an indictment might be supported upon such a statement. (h) An indictment for perjury alleged that the defendant swore that he thought that certain words written in red ink were not his writing; whereas the defendant, when he so deposed, thought that the said words were his writing; and the Court of Queen's Bench held that the assignment was sufficient. If a witness swore that he thought a certain fact took place, it might be difficult indeed to show that he committed wilful perjury. But it was certainly possible, and the averment was as properly a subject of perjury as any other. (i) The important requisites in a case of perjury appear to be these the false oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending. (j) With respect to the falsity of the oath it should be observed, that it has been considered not to be material whether the fact, which is sworn, be in itself true or false; for, howsoever the thing sworn may happen to prove agreeable to the truth, yet, if it were not known to be so by him who swears to it, his offence is altogether as great as if it had been false, inasmuch as he wilfully swears that he knows a thing to be true which at the same time he knows nothing of, and impudently endeavours to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he. (k) The oath must be taken either in a judicial proceeding, or in some other public proceeding of the like nature, wherein the King's honour or interest are concerned; as, before commissioners appointed by the King to inquire of the forfeitures of his tenants, or of defective titles wanting the supply of the King's patents. But it is not material whether the Court, in which a false oath is taken, be a court of record or not, or whether it be a court of v. Aylett, 1 T. R. 69. (k) 1 Hawk. P. C. c. 69, s. 6. Rex v. Edwards, cor. Adams, B., Shrewsbury Lent Ass. 1764; and subsequently considered of by the judges, MS. And see per Lawrence, J., in Rex v. Mawbey, 6 T. R. 619. 2 Rolle Abr. Indictment (E), pl. 5, p. 77. Allen v. Westley, Hetley, 97. Gurney's case, 3 Inst. 166. See Reg. v. Newton, 1 C. & K. 469, for a count framed to meet such a case. common law, or a court of equity, or civil law, &c., or whether the oath be taken in the face of the Court, or out of it before persons authorized to examine a matter depending in it, as, before the sheriff on a writ of inquiry, &c., or whether it be taken in relation to the merits of a cause, or in a collateral matter, as, where one who offers himself to be bail for another, swears that his substance is greater than it is. (1) But neither a false oath in a mere private matter, as in making a bargain, &c., nor the breach of a promissory oath, whether public or private, is punishable as perjury. (m) Much doubt formerly prevailed in certain cases as to the power to administer an oath; but this doubt is, to a great extent, removed by the Act to Amend the Law of Evidence, 14 & 15 Vict. c. 99, s. 16, by which 'every court, judge, justice, officer, commissioner, arbitrator, (n) or other person now or hereafter having by law or by consent of parties, authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively.' It was at one time doubted whether a false oath taken in Doctors' Commons, for the purpose of obtaining a marriage license, amounts to perjury. But it has been since decided that a false oath before a surrogate, taken in order to procure a marriage license, will not support a prosecution for perjury; and, further, that if the indictment only charges the taking the false oath without stating that it was for the purpose of procuring a license, or that a license was procured thereby, the party cannot be punished thereupon as for a misdemeanor. The indictment stated that the prisoner, being minded to procure a marriage between himself and A. B., went before a surrogate, and was sworn to an affidavit in writing, that the said A. B. had been residing four weeks in the parish of S., whereas she had not, and so he had committed perjury; and the indictment had all apt allegations of an indictment for perjury. But a case being reserved upon the question whether on such an affidavit the party could be prosecuted for perjury, and if not, whether upon this indictment any offence was charged, the judges were unanimous that upon an oath before a surrogate, perjury could not be assigned; and that as this indictment did not charge that the defendant took the oath to procure a license, or that he did procure one, no punishment could be inflicted, and he was therefore pardoned. (0) The third count of an indictment stated that W. James was a surrogate having authority to grant licenses for marriages, and that the defendant applied to the said W. James to grant a license for the solemnization of a marriage between J. Baker and S. Fry, and that the defendant, unlawfully intending to obtain such license for the said marriage in fraud of the 4 Geo. 4, c. 76, (7) 1 Hawk. P. C. c. 69, s. 3. Bac. Abr. tit. Perjury (A). See R. v. Cross ley, 7 T. R. 315. (m) Id. Ibid. (n) R. v. Hallett, 2 Den. C. C. 237, a case before this Act. (0) Rex v. Forster, MS. Bayley, J., and R. & R. 459. See Alexander's case, 1 Leach, 63. The point was submitted to the judges, and several times agitated; marriage license, he is guilty of a common law misdemeanor. Father of an illegitimate child. for the purpose of obtaining such license, before the said W. James took his corporal oath upon the Holy Gospel of God, and that the defendant being so sworn as aforesaid before the said W. James as such surrogate (he the said W. James having competent authority, as such surrogate, to administer the said oath) did, for the purpose of thereby obtaining such license for the marriage of the said J. Baker and S. Fry, falsely, corruptly, &c., swear, &c., that the name of him, the defendant, was J. Baker, and that he was one of the parties for whose marriage a license was then applied for, and that he was a yeoman and widower, and that the said S. Fry had had her usual place of abode within the parish of W. in the county of S. for the space of fifteen days then last past. The count then negatived the matter sworn in the usual manner. By means of which false oath the defendant did then obtain from the said W. James, so being such surrogate, a license for the solemnization of a marriage between the said J. Baker and S. Fry. The prisoner having been convicted, upon a case reserved, it was contended that this count charged no offence. That a surrogate had no authority to administer an oath, and at all events not this oath, to the defendant. That the count did not aver that a written license was obtained, or the marriage celebrated by means of such license. But it was held that the count charged a misdemeanor. It distinctly averred that the prisoner swore falsely as to S. Fry; and any one material fact falsely sworn to is sufficient to support the charge. Then the only question was as to the surrogate's power to administer the oath; not such an oath. as will support an indictment for perjury, but as will make a party guilty of a misdemeanor. By the canon law the surrogate had such power, and the 4 Geo. 4, c. 76, seems to assume that power. To make a false oath in order to procure a marriage license from an officer empowered to grant such license is a misdemeanor; because it is a step towards the accomplishment of a misdemeanor. The actual celebration of the marriage is immaterial. Anything essentially connected with marriage is a matter of public concern, and therefore may involve criminal consequences. (p) In one case the question whether a father of an illegitimate child was included in the 4 Geo. 4, c. 76, s. 16, was raised on an indictment against the prisoner for falsely swearing before a surrogate that the father had given his consent to the marriage of his daughter, but not decided. (q) (p) Reg. v. Chapman, 1 Den. C. C. 432, 18 L. J. M. C. 152. 2 C. & K. 846. Anonymous cited by the C. J. of the K. B. 1 Ventr. 370. The prisoner was indicted for wilful and corrupt perjury in making a false affidavit before a commissioner for taking oaths in the Court of Queen's Bench, for the purpose of getting a bill of sale filed under the Bills of Sale Act, 1854. Held, a misdemeanor, though not wilful and corrupt perjury. Held also, that the conclusion of an indictment for perjury, "that so the defendant did commit wilful and corrupt perjury" might be rejected as surplusage, and a conviction for the misdemeanor was right upon such an in dictment. R. v. Hodgkiss, 39 L. J. M. C. 14, 1 L. R. C. C. R. 212. (q) Reg. v. Fairlie, 9 Cox, C. C. 209. The defendant was acquitted on the ground of a variance. The indictment alleged that the prisoner, intending to procure a marriage to be solemnized between himself and E. A. E., she being under the age of twenty-one years, without the consent of the natural and lawful father of the said E. A. E., to wit, without the consent of G. E., he being the person whose consent was by law required before the license was granted, falsely swore that G. E., the natural and lawful father of the said minor, was consenting. The affidavit sworn by the prisoner contained the Before the C. L. P. Act, 1852, if an action had abated by the Death of a codeath of a co-plaintiff, and no suggestion had been entered ac- plaintiff. cording to the 8 & 9 Will. 3, c. 11, s. 6, a trial was extra-judicial, and no perjury could be assigned upon any false evidence given at such trial. (•) be taken before a compe The oath must be taken before a competent jurisdiction, that is, Oath must before some person or persons lawfully authorized to administer it. So that a false oath taken in a court of requests, in a matter tent jurisdicconcerning lands, has been holden not to be indictable, that court tion. having no jurisdiction in such cases. (s) And it seems clear, that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly colourable, but in truth unwarrantable and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle. (4) But a false oath taken before commissioners, whose commission at the time is in strictness determined by the demise of the King, is perjury, if taken before such time as the commissioners had notice of the demise; for it would be of the utmost ill consequence in such case to make their proceedings wholly void. (u) discipline of By 27 & 28 Vict. c. 19, entitled 'An Act to make provision for the Court-martial discipline of the Navy,' s. 63, every person who, upon any examina- under Act for tion upon oath or upon affirmation before any court-martial held the Navy. in pursuance of this Act, shall wilfully and corruptly give false evidence, shall be deemed guilty of wilful and corrupt perjury, and every such offence, wheresoever committed, shall be triable and punishable in England; and where any such offence committed out of England is tried in England, all statutes and laws, applicable to cases of perjury, shall apply to the case. Wilful and corrupt false swearing before a local marine board, duly and lawfully appointed and constituted, under 17 & 18 Vict. c. 104, upon a matter material to an inquiry then being lawfully investigated by them, under 25 & 26 Vict. c. 63, s. 23, is perjury. (v) By 38 & 39 Vict. c. 35 (The Public Health Act, 1875), s. 263, Public Health any person who on any examination on oath, under any of the Act. provisions of this Act, wilfully and corruptly gives false evidence, shall be liable to the penalties inflicted on persons guilty of wilful and corrupt perjury. By 32 & 33 Vict. c. 62 (The Debtors' Act, 1869), s. 14, if any Debtors' Act, statement set out in the indictment; but it appeared that the girl was the illegitimate daughter of G. E., who had not given his consent to her marriage. The Recorder held that, as the indictment had described G. E. as the natural and lawful father, and the evidence showed that E. A. E. had no natural and lawful father, the prisoner must be acquitted. (r) Rex v. Cohen, 1 Stark. R. 511. See now the 15 & 16 Vict. c. 76, s. 135. (8) Buxton v. Gouch, 3 Salk. 269. (t) 1 Hawk. P. C. c. 69, s. 4, and the authorities there cited; 4 Black. Com. 137. See the 5 & 6 Will. 4, c. 62, s. 13, post, p. 30. (2) 1 Hawk. P. C. c. 69, s. 4. Bac. Ab. tit. Perjury (A). (v) R. v. Tomlinson, 36 L. J. M. C. 41; 1 L. R. C. C. C. 49. It seems that the taking of a false oath before a courtmartial is perjury at common law, R. v. Heane, 4 B. & S. 947; 33 L. J. M. C, 115. 1869. Perjury may be committed on a commission to examine wit nesses issued before issue is joined. A master extraordinary in chancery had to administer no authority an oath in matters in the court of admiralty. Jurisdiction of the insolvent debtors court after the filing of a petition. Authority to take an affi davit of debt to make a creditor in any bankruptcy or liquidation by arrangement or composition with creditors in pursuance of the Bankruptcy Act, 1869, wilfully and with intent to defraud makes any false claim, or any proof, declaration, or statement of account which is untrue in any material particular, he shall be guilty of a misdemeanor, punishable with imprisonment not exceeding one year, with or without hard labour. See vol. 2, p. 443. Where after a writ had issued, but before the appearance of the defendant, a commission was issued to examine a witness on behalf of the plaintiff, and a rule had been obtained to rescind the order for the commission, it was urged in support of the rule that for a commission to go the proceedings should be in such a state that perjury could be assigned on the depositions; and that could not be without an issue joined, to which the matter sworn would be material. Lord Campbell, C. J., 'I do not agree that there could be no indictment for perjury where the examination of the witness has taken place before issue joined, if his evidence be material to the issue afterwards joined. (w) A master extraordinary in chancery had no authority, by virtue of his commission, to administer an oath in matters in the court of admiralty, and therefore an indictment for perjury cannot be supported on an oath so administered. (x) But any person who made such an affidavit, with a view to its being received by the court of admiralty, knowing at the same time it was false, was guilty of a misdemeanor at common law. (y) An indictment for perjury committed before the insolvent court held under the now repealed Acts 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, alleged that notice of the insolvent's petition was inserted in the London Gazette,' and thereby a public sitting was appointed for the first examination of the insolvent, and that that sitting was adjourned. No evidence was given in support of these allegations, although the perjury was alleged to have been committed on the day to which the sitting was adjourned; the filing of the insolvent's petition, however, was proved; and upon a case reserved, it was held that upon the filing of the petition the Court had jurisdiction to institute the examination upon which the prisoner swore falsely; and as the Insolvent Debtors Court was a court of record, it must be presumed that its sittings in a matter within its jurisdiction were lawfully and rightfully holden; and as the indictment contained the general allegation that the Court had competent power to administer the oath to the prisoner, that was sufficient under the 14 & 15 Vict. c. 100, s. 20, and the allegations, of which no proof was given, might be rejected as surplusage. (*) Where an affidavit of debt was sworn under the 1 & 2 Vict. c. 110, s. 8, with a view to make a trader a bankrupt, unless he paid or gave security, &c., perjury might be assigned upon it, nottrader a bank withstanding the alterations introduced by the 5 & 6 Vict. c. 122, as to this mode of proceeding against a trader: and such an affidavit fell within the 5 & 6 Vict. c. 122, s. 67, and therefore might rupt. (w) Finney v. Beesley, 20 L. J. Q. B. 396, 17 Q. B. 86. (x) Reg. v. Stone, Dears. C. C. 251; 23 L. J. M. C. 14. (y) Per Pollock, C. B., and Parke, B., ibid. (2) Reg. v. Westley, Bell, C. C. 193, 29 L. J. M. C. 35. |