the like (g). But one of the chief species of this offence, (and that which reduces it under the present chapter,) is that of conspiring [to indict an innocent man falsely and maliciously; who is accordingly indicted and acquitted,] or otherwise lawfully discharged from the prosecution (h). This is [an abuse and perversion of public justice; for which the party injured may either have a civil action,the nature of which we have described in a former book (i); or else the conspirators, (for there must be at least two to form a conspiracy,) may be indicted at the suit of the Crown (k); and (being convicted) were by the antient common law to receive what was called the villenous judgment (1): viz., to lose their liberam legem,] whereby they were formerly discredited and disabled as jurors and witnesses; [to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison (m). But it is now the better opinion that the villenous judgment is by long disuse become obsolete, it not having been pronounced for some ages (n); but instead thereof, the defendants are usually sentenced] to fine and imprisonment (o); to which, by 14 & 15 Vict. c. 100, s. 29, may now be added, (in most cases of conspiracy,) hard labour, during the whole or any part of the term of imprisonment.

(g) Hawk. P. C. b. 1, c. 72, s. 2. (h) Hawk. ubi sup. et s. 9; 3 Inst. 143; see R. v. Spragg, 2 Burr. 998; R. v. Macdaniel, 1 Leach, C. C. 45. As to the felonious offence of actually accusing or actually threatening to accuse of crime, with intent to extort property, vide sup. pp. 212,

213.

(i) Vide sup. vol. 111. p. 497. (k) No indictment for a conspiracy shall be presented to or found by the grand jury, without security given for the due prosecution of the charge, unless the indictment be ordered by a judge, &c. (22 & 23 Vict. c. 17.)

(1) Bro. Abr. tit. Conspiracy, 28. (m) Hawk. P. C. b. 1, c. 72, s. 9. (n) It is to be observed in reference to this subject, that until a recent period persons who were infamous, that is, of such a character that they might be challenged as jurors propter delictum (as to which vide sup. vol. 1. p. 627), were, independently of any villenous judgment, inadmissible as witnesses. But they are now made competent by 6 & 7 Vict. c. 85. Vide sup. vol. 111.

p. 634.

(0) Blackstone adds "pillory," but this punishment is now abolished. Vide post, p. 324, n. (o).

We may add that, with regard to a conspiracy, the object of which is to commit murder, there is a recent provision as to such offence contained in 24 & 25 Vict. c. 100, by which it is enacted, that all persons who shall conspire, confederate and agree to murder any person, (whether a subject of her majesty or not, and whether within her dominions or not,) and whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person,-shall be guilty of a misdemeanor, and be punishable either by imprisonment (with or without hard labour) to the extent of two years; or, at the discretion of the court, by penal servitude, to the extent of ten years or not less than three years (p).

With respect to the offence of conspiracy, it may be remarked, that it is deemed to consist rather in the guilty combination or agreement, than in the act by which it is carried into effect and therefore, in an indictment for conspiring to do a thing in itself unlawful, it is not necessary to allege that the thing was in fact done (q); though, supposing it to have been done, it is usual to state the unlawful agreement or conspiracy first, and then to charge the thing done, (or overt act, as it is called,) to have been committed in pursuance of the conspiracy (r). It is also observable, that the effect of the state of the law relative to conspiracy, is often to render a purpose criminal when concerted by several, which would not be of that character, if entertained merely by an individual; a distinction which rests on very solid ground; for though every wrong may not be of dangerous tendency to the public, yet every coalition to promote wrong, is manifestly of that character. Accordingly it is held, that a false and malicious indictment, if preferred by an individual, is no crime, though it

(p) 24 & 25 Vict. c. 100, s. 4. The offender, if the court see fit, may also, either in addition to or in lieu of any other punishment, be bound over with sureties to keep the peace and be of good behaviour. (Sect. 71.)

(q) See 9 Rep. 56 b; R. v. Kimberty, 1 Lev. 62; R. v. Best, Lord Raym. 1167; S. C. Salk. 174; R. v. Seward, 1 A. & E. 713.

(r) As to the form of the indictment, see R. v. Steel, 1 C. & M. 337.

is a cause of civil action (s); but if planned by several persons, it is, as we have seen, the legal offence of conspiracy. So a combination among workmen, to raise the price of wages, was once deemed to be, in every case, conspiracy (t); though the same object, if contemplated by a single workman, would not have been criminal (u). But the law on this subject is now altered; for by 6 Geo. IV. c. 129, s. 4, and 22 Vict. c. 34, persons merely entering into agreement for the purpose of fixing the rate of wages, or endeavouring (without threat or intimidation) to persuade others to abstain from work for the same purpose, are not therefore to be liable to prosecution, or indictment for conspiracy. As to an assault in pursuance of an unlawful combination or conspiracy to raise wages, or respecting any trade, business, or manufacture, or any person concerned or employed therein,-it is by 24 & 25 Vict. c. 100, s. 41, made a misdemeanor punishable with imprisonment for any term not exceeding two years with or without hard labour.

XV. The next offence against public justice is that of perjury; which is defined by Sir E. Coke (x) "to be "a crime committed, when a lawful oath is ministered by 66 any that hath authority, to any person, in any judicial

66

66

proceeding, who sweareth absolutely and falsely, in a "matter material to the issue or cause in question." The common law [takes no notice of any perjury, but such as is committed in some court of justice having power to administer an oath (or before some magistrate, or proper officer, invested with a similar authority) in some proceedings relative to a civil suit or a criminal prosecution for it esteems all other oaths unnecessary at least,

(s) Leith v. Pope, 2 Bl. Rep. 1328; see 2 Russ. on Crimes, p. 674.

(t) See R. v. Ridgeway, 5 B. &
VOL. IV.
::

Ald. 527.

(u) R. v. Tailors of Cambridge, 8

Mod. 10.

(x) 3 Inst. 164.

Y

[and therefore will not punish the breach of them.] But by the express provision of many modern statutes (z), it is enacted that a false oath taken in certain cases, not of a judicial kind, shall be deemed to amount to perjury, and be visited with the same penalties (a).

A mere voluntary oath, however, that is, an oath administered in a case for which the law has not provided, -is not one on which perjury can be assigned; for as such a proceeding is not required, so neither is it protected by the law. Indeed, such voluntary oaths are now expressly prohibited by statute 5 & 6 Will. IV. c. 62, which provides, that a certain form of declaration may be substituted for them, and that any party falsely making such declaration shall be guilty of a misdemeanor.

Perjury, by the definition, must be absolute, as well as false,—that is, it must be in positive terms. Yet a man will be guilty of the offence, if he swears he believes to be true a fact or statement which he knows to be false (b). Perjury must also be corrupt or wilful, (that is, committed

(z) Among the statutes containing provisions as to perjury in particular cases, are the following: Annuities (Government), 48 Geo. 3. c. 142, ss. 4, 26; 52 Geo. 3, c. 129, ss. 2, 7;-Bankrupts, 12 & 13 Vict. c. 106, s. 254;-Court for Divorce and Matrimonial Causes, 20 & 21 Vict. c. 89, s. 90 ;-Court of Probate, &c., 20 & 21 Vict. c. 77, s. 27;-Elections, 2 Will. 4, c. 45, s. 58; 5 & 6 Will. 4, c. 76, s. 34;-Exchequer Bills, 51 Geo. 3, c. 15, ss. 9, 10;

Excise, 7 & 8 Geo. 4, c. 53, ss. 29, 30, 31;-Inclosure Act, 41 Geo. 3, c. 109, s. 43;-Naval and Military Pay, 11 Geo. 4 & 1 Will. 4, c. 20, ss. 85, 86; Oaths sworn abroad, 6 Geo. 4, c. 87; 18 & 19 Vict. c. 42;-Quarantine, 6 Geo. 4,

c. 78, s. 29;-Registry Acts, 2 & 3 Ann. c. 4, ss. 18, 19;-Slave trade, 5 & 6 Vict. c. 42, s. 7;-Stamps, 55 Geo. 3, c. 184, ss. 52, 53.

(a) We may remark here, that the penalties of perjury attach to wilful falsehood in an affirmation by a Quaker, Moravian, or Separatist. (As to which, vide sup. vol. II. p. 353.) They also attach to the affirmation of a witness (on oral examination or otherwise) in lieu of taking an oath, under 17 & 18 Vict. c. 125, s. 20, and 24 & 25 Vict. c. 66. (Vide sup. vol. 111. p. 635.) And the case is the same as to the declaration of a bankrupt, without oath. (See 12 & 13 Vict. c. 106, s. 254.) (b) Pedley's case, 1 Leach, C. C. 365.

malo animo,) not upon surprise or the like (c). [It must also be, in some point, material to the question in dispute (d); for if it only be in some trifling collateral circumstance to which no regard is paid,] it is no more penal than in the voluntary extra-judicial oaths before mentioned.

[Subornation of perjury, is the offence of procuring another to take such a false oath, as constitutes perjury in the principal (e).]

Perjury and subornation are both misdemeanors (ƒ); and their punishment, [at common law, has been various. It was antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and, latterly, fine and imprisonment.] But additional punishments for this offence, have been enacted by various statutes. By 5 Eliz. c. 9, (made perpetual by 29 Eliz. c. 5, s. 2, and 21 Jac. I. c. 28, s. 8,) an offender, convicted of perjury, may be imprisoned for six months and fined 207.; and if convicted of subornation, may be fined 401., and, in default of payment, is liable to the same period of imprisonment. Moreover, under 2 Geo. II. c. 25, the perjurer or suborner may be sent to the house of correction, with hard labour, for seven years; or (under the same statute as affected in its punishment by later Acts), they may be sentenced to penal servitude for not more than seven or less than three years (g). And by 3 Geo. IV. c. 114, such offenders may be sentenced to hard labour for any term for which they

(c) Hawk. P. C. b. 1, c. 69, s. 2. (d) R. v. Aylett, 1 T. R. 69; and see Queen v. Bennett, 20 L. J. (M. C.) 217; Queen v. Phillpotts, 21 L. J. (M. C.) 18.

(e) If the party suborned does not actually take an oath, the person inciting him so to do, is still liable to be fined and suffer infamous corporal punishment. (Hawk. P. C. b. 1, c. 69, s. 2.)

(f) As to the indictment and trial

of perjury and subornation, vide post, c. XVIII. By 22 & 23 Vict. c. 17, an indictment for neither of them is to be preferred to, or found by, the grand jury, without security given for the due prosecution of the charge, unless the party charged have been bound over to meet it, or indictment be preferred by direction or consent of a judge, &c.

(g) 2 Geo. 2, c. 25, s. 2; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.