for instance, if a man swear that J. N. revoked his will in his presence, if he really had revoked it, but it were unknown to the witness that he had done so, it is perjury. m So, also, it is perjury for a person knowingly and corruptly to swear that he is ignorant of a particular fact of which he is cognizant. n

§ 2202. What is probable cause. It has just been seen, therefore, that falsity consists in knowingly affirming a condition without probable cause. But what is probable cause? Here, then, we must again accept a position so often vindicated in these pages, that probable cause must be estimated, not from the jury's stand-point, nor from the judge's, but from the defendant's. On the one hand, the fact sworn to may have been true, but if the defendant swore to it wilfully and corruptly, not knowing it to be true, or not having probable cause, according to his own lights, for believing it to be true, he is guilty, as was in the last section stated, of perjury. On the other hand, if he swears honestly to a fact or belief, with probable cause, according to his own lights, for the truth of his belief, he is not guilty of perjury, though his oath was really untrue. o

§ 2203. Mistake of fact induced by erroneous representations of others. Hence it is admissible to prove reception of information by the defendant such as gave him probable ground for his oath. Upon an indictment against the defendant for a misdemeanor in falsely swearing that he bona fide had such an estate in law or equity of the annual value of £300 above reprises, as qualified him to be a member of parliament for a borough, a surveyor stated that the fair annual value of the property was about £200 a year, but another witness stated that it was badly let, and believed that it was worth more than £300 a year, and that he told the defendant so, and that he did not think that the defendant had any reason to believe that the qualification in point of value was not sufficient. It was held that the jury must be satisfied beyond all doubt, that the property was not of the value of £300 a year, and that at the time the defendant made the statement, he knew that it was not of that value. p

Oath taken under advice of counsel. Hence, also, an honest oath taken under advice of counsel, is not perjury. q Thus a

m Hetley, 97.

n Wilson v. Nations, 5 Yer. 211. o Com. v. Brady, 5 Gray, 78.

VOL. II.-38

p R. v. De Beauvoir, 7 C. & P. 17, Lord Denman, C. J.

q U. S. v. Stanley, 6 McLean, 409.

593

bankrupt who submits the facts in regard to his property fairly to the advice of his counsel, and acting under the advice thus given, withholds certain items from his schedule, is not guilty of perjury; the fraudulent intent being wanting. r

§ 2204. General evil intent and no evil intent. Here another well-known distinction must be invoked. It has been already seen that when there is a general intent to do mischief, and a specific overt act follows in causal connection with such general intent, then the general intent is tacked to the specific act, so as to complete the offence. 8 Hence it is perjury if a witness, from general recklessness and a depraved determination to hurt, fall the consequences where they may, swears knowingly to a falsehood. Hence even a voluntary drunkard, swearing falsely, may be convicted of perjury, if his intent in rendering his testimony was evil. t But if there be no evil intent, general or special, perjury fails. Thus, it is not perjury to swear honestly to testimony which the witness believes to be true, though a little diligence would have enabled him to have discovered its falsity. ( If, however, he dishonestly refuses to make inquiry, and purposely shuts himself in to impressions which he has good reason to believe further investigations would dispel, then it is perjury. The corruptness, when proved, completes the offence; the absence of corruptness negatives it. u

III. OATH.

But it is

the time,

When a

§ 2205. The oath must be solemnly administered. immaterial in what form it is given, if the party, at professes such form to be binding on his conscience. v witness comes to be sworn, it is to be presumed that he has settled the point with himself in what way he will be sworn, and he should make it known to the court; and should he be sworn with uplifted hands, or by any other unusual mode, though not conscientiously opposed to swearing on the gospel, and depose falsely, he subjects himself to the pains and penalties of perjury. w

u Cothran v. State, 39 Missis. 541; 458; Com. v. Knight, 12 Mass. 274;

§ 2206. Form of oath." Corporal oath" and "solemn oath" are equivalent, and either is sustained by proof of swearing with uplifted hands. x When a statute directs a form of swearing, it must be substantially followed; y but mere verbal deviations are immaterial. z

§ 2207. Voire dire. Where a party offers himself to prove his books, and wilfully testifies untruly as to matters material to the issue, it is perjury, although he was sworn generally, but without objection, to tell the whole truth, instead of being sworn to make true answers. a And a party is generally liable for perjury in his own case. b

When statutory direction as to form of testimony is disregarded. It has been ruled in Vermont that a prosecution for perjury cannot be based on testimony received orally, but which by law ought to be taken in writing. c

IV. BY ONE.

§ 2208. The crime being distinct, several persons cannot be joined. One alone can be made defendant. Even supposing two persons swear jointly to the same false affidavit, it is impossible to suppose that they did so at the same moment of time, so as to make the offence exactly joint. d

§ 2209. Incompetent witness.

If an incompetent witness is permitted to testify, and testifies falsely, it is perjury. e This is even good as to the plaintiff himself. ƒ

Thomas v. Com. 2 Rob. 795; Com. v. Cook, 1 Rob. 729; Campbell v. People, 8 Wend. 636; State v. Coffey, N. C. Term R. 272; S. C. 2 Murphey, 320; State v. Witherow, 3 Murphey, 153. Ante, § 799. As to oaths administered by commissioners from other states, see Com. v. Smith, 11 Allen (Mass.), 243.

c State v. Trask, 42 Vt. 152. See post, § 2250, and State v. Helle, 2 Hill S. C. 290.

d R. v. Phillips, 2 Strange, 921; x Jackson v. State, 1 Carter (Ind.), Res. v. Ross, 2 Yeates, 79. See ante,

§ 2210. Voluntary witness. Nor is it requisite that the defendant should have been served with a subpoena, or have been compellable to testify. The mere fact of his testifying is enough. g.

V. IN A COMPETENT COURT.

66

§ 2211. Distinguished from breach of vows. - Breach of vows, when attended by injury to others or to society, by the canon law is subjected to specific ecclesiastical penalties. Quicunque sciens pejereraverit " (whether in a private vow or public testimony, supposing that God be appealed to as a sanction of the truth of vow or statement), "quadraginta dies in pane et aqua et septem sequentes annos pœniteat, et nunquam sit sine pœnitentia, et nunquam in testimonium recipiatur: communionem tamen post hæc percipiat." (C. 18, c. vi. qu. 1.) But the Roman common law, followed in this respect by the English, treats perjury as an offence only when it can be used to disturb in judicial processes the civil relations of men. So far as it is solely an offence against God, by God is it solely to be avenged. "Jurisjurandi contemta religio satis Deum habet ultorem." (L. 2. Cod. de reb. cred.) In the maintenance of this distinction the English common law has been resolute.

§ 2211 a. Court must have jurisdiction. The court must have jurisdiction of the proceedings in which the false oath was taken. g1 If it appear to have been taken before a person who had no lawful authority to administer it, h or who had no jurisdiction of the cause, i the defendant must be acquitted. The indictment, however, need not show the nature of the authority of the party

g Com. v. Knight, 12 Mass. 274.

g1 Post, § 2225; 2 Russ. on Cr. 6th Am. ed. 599; Pankey v. State, 1 Scam. 80; Montgomery v. State, 10 Ohio, 220; State v. Lamden, 5 Humph. 83; Steinson v. State, 6 Yerger, 531; State v. Fassett, 16 Conn. 457; State v. Gallimon, 2 Ired. 374; State v. Alexander, 4 Hawks, 182; State v. Hayward, 1 N. & M. 546; State v. McCroskey, 3 McCord, 305; State v. Wyatt, 2 Hayw. 56; Com. v. White, 8 Pick. 453; Jackson v. Humphrey, 1 Johns. 498; Com. v. Knight, 12

Mass. 274; Arden v. State, 11 Conn. 408; Conner v. Com. 2 Virg. Cas. 30; U. S. v. Bailey, 9 Peters, 238; U. S. v. Barton, Gilpin, 439.

h 3 Inst. 165, 166; Morrell v. People, 32 Ill. 499. Post, § 2225.

i3 Inst. 166; Yelv. 111; State v. Alexander, 4 Hawks, 182; State v. Furlong, 26 Me. 69. Post, § 2225.

j See R. v. Crossley, 7 T. R. 315; 1 Hawk. c. 69, s. 3, 4; Bac. Abr. Perjury (A.); R. v. Dunn, 1 D. & R. 10; R. v. Hanks, 3 C. & P. 419. Post, §

2225.

administering the oath. k And swearing by a clerk in presence of the court is swearing by the court. 1

§ 2212. Suit must be regular.— Where the court has jurisdiction of the subject matter of inquiry, it is not necessary that the proceedings should be strictly regular. m But if from want of some essential condition, no jurisdiction attached, perjury cannot be maintained. n

§ 2213. Before courts-martial. - By statutes this is made indictable in most jurisdictions; but even where a statute does not apply, the weight of authority is that it is perjury at common law.o

§ 2214. Before ecclesiastical courts. In a celebrated and much contested case in Connecticut, it was held by a majority of the judges, that as Christianity is part of the common law of the land, an ecclesiastical tribunal has the right to administer an oath, and that false swearing before such a tribunal is perjury.p The last is certainly a bold position; and when we bear in mind the license with which ecclesiastical trials are conducted, particularly where the church discipline leaves the matter to the adjudication of the congregation as a body, it is questionable how far sound policy would justify a doctrine which would attach to ecclesiastical sentences, first the incidents and then the consequences of a civil judgment. Yet on the other hand the tendency of the supreme court of the United States to treat the adjudications of ecclesiastical tribunals as authoritative, makes it important to solemnize and check testimony in such courts by the sanction of an oath.

§ 2215. Before grand jury.- Perjury, it seems, may be assigned on a false oath taken before a grand jury.q In England doubts seem to have existed as to whether a grand juror was competent to prove the oath; but it is clear that the clerk of the assizes, or any third person, is admissible for that pur

k R. v. Callanan, 6 B. & C. 602; State v. Ludlow, 2 Southard, 772. Post, § 2239, 2241.

1 Post, § 2272.

o R. v. Heane, 4 B. & S. 947; 9 Cox C. C. 433; R. v. Tomlinson, 1 L. R. C. C. 49. Post, § 2221.

p Chapman v. Gillet, 2 Connect.

m State v. Lavalley, 9 Mo. 824. R. 40. Post, § 2226.

n R. v. Ewington, 2 M. C. C. 223; Car. & M. 319; R. v. Pearce, 3 B. & S. 531; 9 Cox C. C. 258.

7 State v. Fassett, 16 Connect. 457; Com. v. Parker, 2 Cush. 212; Thomas v. Com. 2 Robin. 795; Com. v. Pickering, 8 Grat. 628. See ante, § 508-11.