1911 Encyclopædia Britannica/Perjury

PERJURY (through the Anglo-Fr. perjurie, modern parjure, Lat. perjurium, a false oath, perjurare, to swear falsely), 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). 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 testimony 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 cognisance. 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 (see Attaint, Writ of) 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 an act of Henry VII. (1487). After the abolition of the Star Chamber by the Long Parliament 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. At common law only a false oath in judicial proceedings 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 (The Marriage and Registration Act 1856), and false affidavits under the Bills of Sale Act 1878. False affirmation by a person permitted by law to affirm is perjury (The Evidence Further Amendment Act 1869; The Evidence Amendment Act 1870).

In order to support an indictment for perjury the prosecution 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 the Prosecutions for Perjury Act 1749 (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, proposed to make such an offence a substantive crime of greater gravity than ordinary perjury, and punishable 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 perjury. There must be corroboration of his evidence in some material particular. Perjury is a common law misdemeanour, not triable at quarter-sessions. 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 (The Criminal Procedure Act 1851). The provisions of the Vexatious Indictments Act 1859 extend to perjury and subornation of perjury. By that Act no indictment for either of such offences can be preferred unless the prosecutor or accused is bound by recognisance, 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 the act of 1851.

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 punishment. Perjury and subornation of perjury are punishable at common law with fine and imprisonment. By the combined operation of the Perjury Act 1728 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. 148). The punishment at common law was whipping, imprisonment, fine and pillory.

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 misdemeanor 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.

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 (The Affirmation [Scotland] Act, 1865). The acts of 1851 and 1859 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 imprisonment at the discretion of the court. Formerly a person convicted of perjury was disabled from giving evidence In future; this disability was abolished by the Evidence (Scotland) Act 1852.

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 a United States court is dealt with by an act of Congress of the 3rd of March 1825, by which the maximum punishment for perjury or subornation of perjury is a fine of $2000 or imprisonment for not more than five years. Jurisdiction to punish perjury committed In the state courts belongs to the states, as the Federal Constitution did not give it to the Federal government Statutory provisions founded upon the English act of 1749, have been adopted in some states. In the states which have not adopted such provisions, the indictment must set out the offence with the particularity necessary at common law.

On the continent of Europe perjury is also regarded as an offence of gravity punishable by imprisonment for varying periods In Germany, as In England, it was at one time a matter for the spiritual courts In Austria it is treated as a form of fraud, and the punishment is proportioned to the estimated amount of damage done to the party aggrieved. In France the term perjury (parjure) is specifically applied only to the making of false oaths by parties in a civil suit.