CH. 210. Art. 4. 1 D. & E. 68, ing 71, Rex v. Aylett. 5. In order to make perjury there must be 1. An oath taken in a judicial proceeding: 2. Before a competent court or jurisdiction: 3. It must be material to the question pendand 4. It must be false; and according to Gilbert's case above, it must be wilfully and deliberately false. Not perjury 8 East, 364. but a misdemeanour to hold to bail on a false voucher abroad. 6. An attorney of the court may commit perjury in his affidavit made in answer to a charge against him in a summary way, for his having in his possession blank pieces of paper with affidavit stamps, and the signatures of a master extraordinary in chancery, and another person at the bottom of the papers. 7 Mass. R. 315. Crossly's case. Mass. S. Jud. Court, Nov. 1792, Essex, Commonwealth v. Tukesbury. 7. This was an indictment for perjury; facts were, William Parish complained to Justice Coffin of a violent assault and battery on one Insley. In the trial Tukesbury swore, that Parish was so beaten and abused that he did but little labour in the forenoon, and nothing in the afternoon, as the indictment for perjury alleged. Three witnesses swore he testified before the justice that Parish was able to do but little in the forenoon, and little or nothing in the afternoon ;-little or nothing appeared to be the fact. Held, this did not prove him guilty of perjury. In this case it was said that the perjury must be in a point or matter material to the issue, that what Tukesbury swore before the justice was not material; the issue being, guilty or not guilty of breaking the peace; and what he swore was only in aggravation of the battery. But the court said, and on an authority in Hawkins, that any matter which tended to aggravate or lessen the crime before the justice was material to the issue. The question before the justice was, is Insley guilty or not guilty of breaking the peace. In Pennsylvania there has been a decision, that if a man wilfully and deliberately swear to a matter he rashly believes when he has no probable cause to believe it, and it is false, he commits perjury. Riley's note on 2 Chit. C. L. 154. § 8. Cotteral was indicted for perjury in taking the poor Court, Lin- debtor's oath and swearing out of jail for a debt. The indictment stated the judgment against him, the execution and commitment, his application to two justices, due notice to the plt., the meeting of the justices, and the oath he took, verbatim as in the act, falsely and corruptly. It was proved he had when he took the oath 140 bushels of corn, three hogs, and some other small articles; also, that he had, pending said action or execution, a house and land, and sold them to his son-in-law for £44, which was a very low price; there was strong appearances of a fraudulent sale. Held, that if the sale was fraudulent, the house and land remained his as before, and his swearing he had no estate was false, and perjury. He did not Mass. S. Jud. coln County, July, 1795, Commonwealth v. Cotteral. account satisfactorily for the £44, or shew what he had done with it. Further held, that putting the house and land and £44, out of the case, he swore falsely in saying he had no estate to support him in prison &c., while he had the said corn and the other articles. CH. 210. Art. 4. 639. 167. 9. It is perjury by the common law to swear a thing not 4 Com. D. known by him, though it be not false; but not if one take a false oath before him who has no lawful authority to administer it, or before him who has no jurisdiction of the cause; nor if the oath be not direct and positive, as if he say, as I remember; nor if not in a point material to the issue, as if the wit- 3 Inst. 166, ness be asked if payment was made for such goods at one 2 Roll. 41, time, and he says it was, it will not be perjury if payment was 42. made, though not all at the same time. So if he swear he beat and wounded A with a sword, it is not perjury if with a 639.-5 Mod. stick, for all that is material is the battery or wounding; but 348.-Salk. it is sufficient if it be any way material. And one may be 514. prejudiced in his testimony as to the credit of a witness. 4 Com. D. 639.-1 Sid. 10. But a man shall not be indicted for perjury for a 4 Com. D. breach of his oath of office, as a judge, sheriff, &c. nor if the 419. matter be explained by another part of his answer, or by a subsequent answer. 11. So to constitute perjury the oath must be taken by 3 Bac. Abr. one sworn to depose the truth. Hence a false verdict is not 815. perjury; for the jurors are not sworn to depose the truth, but to judge truly of the depositions of others. The same principle seems to hold at common law in regard to officers who are sworn faithfully to execute their offices; also, in regard to citizens who are sworn to bear true faith and allegiance &c. 12. It is not material whether the false oath is credited 3 Bac. Abr. or not or to the damage of any one or not, the offence is in 815. the abuse of public justice. 1 Bro. Ch. R. 13. On a trial for perjury the oath will be taken as true Crown C. C until it be disproved; and therefore, the evidence must be 597. strong, clear, and more numerous on the part of the prosecution than that on the deft's. part; for the law will not permit 419 a man to be convicted of perjury, unless there are two wit- Crown C. C. nesses at least. It is the province of the grand jury to judge 625, 626. of the intention. § 14. An indictment will not lie where the supposed perjury depends on the construction of a deed. It is perjury, though the false oath be not taken in the face of the court, but before persons authorized by it to examine a matter, a knowledge of which is necessary for a right decision of the suit. Hence, a false oath before the sheriff on a writ of inquiry of damages is perjury. 15. So any false oath is perjury which tends to mislead CH. 210. the court in any of their proceedings relating to a matter judiArt. 5. cially before them, though it no way affect the principal judgment which is to be given in the cause, as if one who is bail swear he is worth more than he is in fact. 4 Com. D. 640, 641. 1 Dongl. 156, Rex v. Lyme Regis. 5 D. & E 311, 320. Rex r. Dowlin, the indictment. ART. 5. Indictments &c. § 1. Perjury is indictable at common law. The indictment ought to state the perjury was committed voluntarily. It ought to shew the exact breach. And if the perjury be at a trial, the indictment must shew what the issue was, and how the evidence tended to the issue; and it must state a legal authority to administer the oath; (Dougl. 156; 1 D. & E. 69 ;) must allege time and place, if material, 70. Judgment is not given unless the party be preBut see our statutes, above cited. sent in court. 2. It is not necessary, in an indictment for perjury, to state a legal authority to administer an oath. § 3. In an indictment for this offence, it is necessary to state only so much of the proceedings of the former trial as will shew the materiality of the question on which the perjury is assigned; but it is sufficient to allege generally, that the particular part became a material one. And if this is wanting, it is a material objection. But the reason of Lord Kenyon was, on 23 Geo. II. c. 11, similar to our act of Congress on this subject, above cited; that requires only the substance of the offence to be stated; therefore it is not necessary to state, in the indictment, any more than the substance of the offence charged, and by what court, or before whom the oath was taken, aver the court &c. had competent authority, &c. and the commission or power of the court need not be specially stated. But if the prosecutor, in perjury, undertakes to state in the indictment more of the proceedings than necessary on said act of 23 Geo. II., he must state them correctly, or he fails. Further stating, that at an admiralty session, J. Kimber was tried in due form of law, on a certain indictment, then and there pending against him for murder, and that at and on that trial, it then and there became and was a material question, whether the said deft. had ever said that he would be revenged of the said J. Kimber, and would work his, said J. K's, ruin, are sufficient averments that the perjury was committed on J. K's trial for murder, and that the question on which the perjury was assigned, was material on that trial. 4. A solicitor made his complaint ore tenus before the Rex v. Aylett. chancellor, in the court of chancery, that he was arrested returning home, after hearing the cause; the indictment stated, that "at and upon the hearing of the said complaint," Cro. El. 137, the deft deposed &c. Held, this was a sufficient averment the complaint was made. The deft. was discharged, because 1 D. & E 69, Stedman's case. the indictment did not state in what matter he swore falsely, CH. 210. nor in what action &c. Art. 5. 5. Many forms of indictments for perjury, and subornation of perjury; many of them at common law; each stating Crown C. C. the proceedings at length, in the causes in which the perjury was committed. 665 to 638. 627,628, § 6. It is said a man may be as much guilty of perjury, by Crown C. C. a false oath tending to extenuate or aggravate the damages, cites 1 Haw. as by an oath direct to the point in issue; which might have 176. induced the drawers of indictments for perjury formerly to set out the whole of the pleadings in which the issues were joined, in order to shew the extent and certainty of the damages which the plts. claimed; but as the greater stress appears to be laid on the intention to pervert the due course of the law, it seems sufficient to state in the indictment that a matter cognizable in court came duly before the judge and jury, to be tried within the intention of 23 Geo. II., (like our act of Congress.) It is necessary to state in the indictment the question was material. 7. Settled, justices of the peace have no jurisdiction over perjury at common law, but have under the statute of 5 Eliz.; not adopted in Massachusetts, because very early the Colony legislature adopted an act on this subject. Haw P. C. 8. The thing sworn ought to be some way material, and 3 Bac. Abr. be so stated in the indictment for perjury; for if it be wholly 815, cites immaterial and foreign to the purpose, no way pertinent to the 175-M'Nalmatter in question, nor tending to increase or decrease the ly, 437, 438. damages, nor like to induce the jury to give the readier credit to the substantial part of the evidence, it cannot be perjury, because it is wholly idle and insignificant. As where a witness introduces his testimony with an impertinent preamble of a story, concerning previous facts, no way relating to what is material, and is guilty of a falsity as to such facts. But it seems a reasonable opinion, that a witness may be guilty of perjury in respect to a false oath concerning a mere circumstance, if such oath have a plain tendency to corroborate the more material part of the evidence. As if, in trespass for spoiling the plt's. close with the deft's. sheep, a witness swears he saw such a number of the deft's. sheep in the close, and being asked how he knew them to be the deft's., swears that he knew them by such a mark, which he knew to be the deft's., when, in truth, the deft. never used any such mark. An indictment, at common law, for perjury in an affidavit, sworn before the court, need not state the affidavit was filed 7 D. & E.315. of record. Сн. 210. Co. Lit. 391, -3 Inst. 112, 113.-Mod. ART. 6. Piracy. § 1. Common law. This did not notice piracy as a felony, or take any cognizance of it. "And piracy, though a felony, was only punishable by the civil law, before 28 H. VIII. c. 15; and attainder thereof, by the course of the civil law, does not corrupt the blood, but an attainder by force of the statute does. A pardon of all felonies, does not discharge pi792 to 812.- racy, because it was a felony where the common law took no 1 Haw. c. 37. conusance; and the said statute did not alter the offence, but only ordained a new way of trial, and a new punishment. 766.-Hale's P.C. 77, 334- 4 Bl. Com.71, 73.-Rex v. Dawson, 5 ry committed within 2. A pirate" is a robber at sea," is deemed an enemy of mankind, and every community has a right to punish him. It State Trials, 1, is held to be only felony; and the special court established ed. 1742, pi- by 28 H. VIII. c. 15, for trying piracy proceeds according to racy is robbe- the common law. Piracy is an act of robbery and depredation on the high seas, which if committed on land would be a the admiralty felony, by the common law; but by statute some other offenjurisdiction. Valens on ces are made piracy. By 11 and 12 of W. III. c. 7, an act Prizes, p. 29. of one subject against other subjects, on the seas, under col-2 Hale's P. our of a commission from a foreign power, which would be Brown's Civ. only an act of war in an alien, shall be construed piracy in a & Adm. law, subject. The common law does not take cognizance of pirapiracy is un- cy. Hence if one, at land, be accessary to a piracy at sea, authorized the commissioners on the statute cannot try him; for his ofdepredation fence was at land; nor can the common law try it, because C 18.-Dr. 461, 462, says at sea. Constitution States. In piracy is not made felony whereof the common law can take notice. Again, if A commits a robbery at sea, and brings the goods to land within the body of the county, this is not felony, triable by the common law, because the common law takes no notice of the original fact. ART. 7. 1. By art. 1, s. 8, of the constitution, Congress of the United has power to define and punish "piracies and felonies, comdictment for, mitted on the high seas, and offences against the law of naCro. C. C. tions." By article 3, s. 2, the federal judicial power is ex639 to 645-tended, " to all cases of admiralty and maritime jurisdiction." "And when a crime shall not be committed within any State, the trial shall be at such place or places as Congress by law shall have directed." 4 Wentw. 50, 51. Act of Con. April 30, 1790, sec. 9 to 12-[And act of Con. Mar.3, 1819.] 2. Section 8, of this act, enacts, "that if any person or persons shall commit, upon the high seas, or in any river, haVen, bason, or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which if committed within the body of a county, would, by the laws of the United States, be punishable with death; or if any captain, or mariner, of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize to the amount of $50, or yield up such ship or |