PERJURY, by the common law of England, is the offence of falsely swearing to facts in a judicial proceeding. To constitute this offence the party must have been lawfully sworn to speak the truth by some court, judge, or officer, having authority to administer an oath ; and, under the oath so administered, he must wilfully assert a falsehood in a judioial proceeding respecting some fact material to the subject of inquiry in that proceeding. In a legal sense therefore the term has a much narrower import than it has In its popular acceptation. It is said by Sir Edward Coke ( 3 `Inst.,' 1G6) that deposition must be direct and absolute, and not ut putat, nor sleet meminit, nor la credit," &c. ; but this doctrine has been long since exploded; and it is now clear that a person may commit perjury by swearing that he believes a fact to be true which he knees to be false. It is immaterial, with reference to the offence pf perjury, whether the false statement has received credit or not, or whether any injury has been sustained by an individual in consequence of it. The characteristic of this offence therefore, by the law of England, is not the violation of the religious sanction of an oath, nor the wrong done to the person or property of another, but the injury done to the administration of justice by false testimony or informa tion in a judicial proceeding.
The history of perjury at common law is entirely dependent upon the history of the trial by jury. Where it is mentioned by Bracton and Fleta, these ancient authors allude exclusively to the offence of jurors in giving a wilfully false verdict ; and as the jury appear to have been originally merely witnesses, speaking from their personal knowledge of the facts, and sworn to speak the truth, their miscon duct in giving a false decision might be justly treated as perjury. As population and civilisation increased, the nature of the trial by jury became changed, and witnesses were called in order to inform the jurors respecting facts of which the latter were commonly ignorant, though the institution was originally founded upon the presumption that they must necessarily be acquainted with them. It is probable that this alteration did not take place at once, but that it was one of those gradual introductions by means of which laws silently adapt themselves to changes in national habits and circumstances. At all events, there is no trace in the statutes or in the reported proceedings of the courts, of any penal law against perjury in witnesses, as dis tinguished from that of jurors, earlier than the reign of Henry VIII. The date of the introduction of the witneas's oath to speak the truth, in use at the present day, is unknown, and no form of process for scouring the attendance of witnesses (except where they were added to the jury) seems to have existed before the reign of Elizabeth.
These facts tend to show that the offence of perjury has been gradu ally moulded into its present definite character, by the corresponding change in the functions of the jury. This change however was complete in the time of Sir Edward Coke, as he defines perjury nearly in the same terms in which it is described in the modern text books. (3 'Inst.; 163.) A defendant in equity is guilty of perjury by false swearing in his answer to a plaintiff's bill. He is in faot also a witness, for he is bound to answer on oath to the matter contained in the bill, and the plaintiff may read the whole or any integral portion of the answer as evidence against him. In the case of an answer in equity, the offence of false swearing falls exactly within the definition given above.
The punishments of perjury by the common law were, fine and imprisonment, and the pillory, which latter punishment was abolished in 1837. To these was added an incident probably derived from the punishment of jurors in ancient times, namely, a perpetual in capacity to give evidence in courts of justice. A etatntc of Goo. II. allowed imprisonment with hard labour for seven years, or transpor tation for a like period, to be imposed as the punishment for this offence; the effect of recent enactments has been that perjury is now punishable by imprisonment, with or without hard labour, or penal servitude for that term.
Subornation of perjury consists in wilfully procuring any person to commit perjury ; and it is essential to this offence that the false oath should be actually taken. The same punishment is assigned to sub ornation as to perjury.
Besides perjury and subornation of perjury at common law, the statute 5 Eliz., o. 9, contains a legislative enactment respecting these offences; but as this enactment is more limited than the common law, both in the definition of the crime itself and in the punish ment to be applied to it, it has seldom been founded upon in recent times; and within the last century there have been few if any instances of prosecutions under this statute. There are also many statutes by which oaths are required as a sanction to statements of Meta under a variety of circumstances, and otherwise than in judicial proceedings; and these statutes frequently declare that false swearing in such cases shall amount to perjury, and be punishable as such.
In those cases in which a solemn declaration may be taken in lieu of an oath [0azii], the offence of making the declaration falsely is the same as perjury, and punishable in like manner.