1902 Encyclopedia > Perjury

Perjury




PERJURY is an assertion upon an oath duly administered in a judicial proceeding, before a competent court, of the truth of some matter of fact, material to the question depending in that proceeding, which assertion the assertor does not believe to be true when he makes it, or on which he knows himself to be ignorant (Stephen, Digest of the Criminal Law, Art. 135). In the early stages of legal history perjury seems to have been regarded rather as a sin than as a crime, and so subject only to supernatural penalties. The injury caused by a false oath was supposed to be done not so much to society as to the Divine Being in whose name the oath was taken (see OATH). One of the practical effects of this view was to make perjury so common in the Middle Ages that the probable reason for preserving trial by combat was the difficulty of securing a just cause against the perjury of witnesses (Hallam, Middle Ages, ch. ix. pt. 1). The almost universal existence of compurgation was no doubt another explanation of the frequency of perjury. In cases of compurgation, or in cases where wager of law was allowed, it is difficult to imagine that the defence could as a rule have been an honest one. In Roman law, even in the time of the empire, the perjurer fell simply under divine reprobation, and was not dealt with as a criminal, except where he had been bribed to withhold true or give false evidence, or where the oath was by the genius of the emperor. In the latter case punishment was no doubt inflicted more for the insult to the emperor than for the perjury. False testi-mony leading to the conviction of a person for a crime punishable with death constituted the offence of homicide rather than of perjury. In England, perjury, as being a sin, was originally a matter of ecclesiastical cognizance. At a later period, when it had become a crime, the jurisdiction of the spiritual courts became gradually confined to such perjury as was committed in ecclesiastical proceedings, and did not extend to perjury committed in a temporal court. The only perjury which was for a long time noticed at common law was the perjury of jurors. Attaint of jurors (who were originally rather in the position of witnesses than of judges of fact) incidentally subjected them to punishment for perjury. Criminal jurisdiction over perjury by persons other than jurors seems to have been first assumed by the Star Chamber, acting under the powers supposed to have been conferred by 3 Hen. VII. ch. 1. After the abolition of the Star Chamber by the Long Parlia-ment in 1641 and the gradual diminution of the authority of the spiritual courts, perjury (whether in the strict sense of the word or the taking of a false oath in non-judicial proceedings) practically fell entirely within the jurisdiction of the ordinary criminal tribunals. The jurisdiction of the spiritual courts over perjury may now be considered obsolete. An unsuccessful attempt was made as lately as 1876 to induce the Court of Arches to entertain a criminal suit against a layman for a false oath taken before a surro-gate (Phillimore v. Machon, Law Rep., 1 Prob. Div., 481). See further, for the history of the law of perjury, Stephen, History of the Criminal Laiv, vol. ii. p. 408 ; vol. iii. p. 240. At common law only a false oath in judicial pro-ceedings is perjury. But by statute the penalties of perjury have been extended to extra-judicial matters, e.g., false declarations made for the purpose of procuring marriage (19 and 20 Vict. c. 119, s. 18), and false affidavits under the Bills of Sale Act, 1878 (41 and 42 Vict. c. 31, s. 17). False affirmation by a person permitted by law to affirm is perjury (32 and 33 Vict. c. 68, s. 4; 33 and 34 Vict. c. 49). In order to support an indictment for perjury the prosecu-tion must prove the authority to administer the oath, the occasion of administering it, the taking of the oath, the substance of the oath, the materiality of the matter sworn, the falsity of the matter sworn, and the corrupt intention of the defendant. The indictment must allege that the perjury was wilful and corrupt, and must set out the false statement or statements on which perjury is assigned, subject to the provisions of 23 Geo. II. c. 11 (which also applies to subornation of perjury). By that Act it is sufficient to set out the substance of the offence, without setting forth the bill, answer, &c,, or any part of the record, and without setting forth the commission or authority of the court before whom the perjury was committed. The matter sworn to must be one of fact and not of mere belief or opinion. It is not homicide, as in Roman law, to procure the death of another by false evidence, but the Criminal Code, ss. 118, 164, proposes to make such an offence a substantive crime of greater gravity than ordinary perjury, and punish-able by penal servitude for life. It is a rule of evidence, founded upon obvious reasons, that the testimony of a single witness is insufficient to convict on a charge of per-jury. There must be corroboration of his evidence in some material particular. Perjury is a common law mis-demeanour, not triable at quarter-sessions. Proceedings may also be taken under 5 Eliz. c. 9, but this Act is of little practical importance, as the common law is more extensive than the statute. Most persons in a judicial position have the right of directing the prosecution of any witness, if it appears to them that he has been guilty of perjury (14 and 15 Vict. c. 100, s. 19). The provisions of the Vexatious Indictments Act (22 and 23 Vict. c. 17) extend to perjury and subornation of perjury. By that Act no indictment for either of such offences can be pre-ferred unless the prosecutor or accused is bound by recog-nizance, or the accused is in custody, or the consent of a judge is obtained, or (in the case of perjury) a prosecution is directed under 14 and 15 Vict. c. 100.





Subornation of perjury is procuring a person to commit a perjury which he actually commits in consequence of such procurement. If the person attempted to be suborned do not take the oath, the person inciting him, though not guilty of subornation, is liable to fine and corporal punish-ment. Perjury and subornation of perjury are punishable at common law with fine and imprisonment. By the combined operation of 2 Geo. II. c. 25 and later statutes, the punishment at present appears to be penal servitude for any term, or imprisonment with or without hard labour for a term not exceeding seven years (see Stephen, Digest, Art. 137). Perjury or prevarication committed before a committee of either House of Parliament may be dealt with as a contempt or breach of privilege as well as by prosecution. As to false oaths not perjury, it is a misdemeanour at common law, punishable by fine and imprisonment, to swear falsely before any person authorized to administer an oath upon a matter of common concern, under such circumstances that the false swearing, if committed in judicial proceedings, would have amounted to perjury. There are some cases of making false declarations which are punishable on summary conviction, e.g., certain declarations under the Registration of Births and Deaths Act, 1874, and the Customs Consolidation Act, 1876. A conviction for perjury subjects the person convicted to certain disqualifications. He cannot hold a parish office (4 and 5 Will. IV. c. 76, s. 48). If a solicitor, and he attempt to practise after conviction, he is liable on summary conviction by a judge to seven years' penal servitude (12 Geo. I. c. 29, s. 4). If the prosecution be under the statute of Elizabeth, the person convicted is disabled from giving evidence for the future (5 Eliz. c. 9, s. 2). The provisions of the last two Acts may, however, be regarded as virtually obsolete. The perjury of a witness may be a ground for pardon where the perjury has taken place in a criminal trial in which accused was convicted, or for a new trial in a civil action. In order to procure a pardon or a new trial it is generally necessary to show that the witness was a material one, and also that the perjurer has been prosecuted to conviction.

In Scotland the law, as a general rule, agrees with that of England. Perjury may be committed by a party on reference to oath as well as by a witness. A witness making a false affirmation is guilty of perjury (28 Vict. c. 9). The Acts 14 and 15 Vict. c. 100 and 22 and 23 Vict. c. 17 do not extend to Scotland. The trial, though usually by the Court of Justiciary, may be by the Court of Session if the perjury is committed in the course of an action before that court. The punishment is penal servitude or imprison-ment at the discretion of the court. Formerly a person convicted of perjury was disabled from giving evidence in future ; this dis-ability was abolished by 15 Vict. c. 27, s. 1.

In the United States the common law has been extended by most States to embrace false affirmations and false evidence in proceedings not judicial. Perjury in the United States courts is dealt with by an Act of Congress of 3d March 1825, by wdiich the maximum punishment for perjury or subornation of perjury is a fine of $2000 or imprisonment for five years. The jurisdiction of the States to punish perjury committed in the State courts is specially preserved by the same Act. Statutory provisions founded upon 23 Geo. II. c. 11 have been adopted in some States, but not in others. In the States which have not adopted such provisions, the indictment must set out the offence with the particularity necessary at common law. (J. W†.)






The above article was written by: James Williams, B.C.L.



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