vided in the statute to prevent the abuse of the license, and a complaint may be made to the selectmen, to a justice of the peace, or to a grand jury, by any prson who has knowledge of such offenses, without incurring the risk of a prosecution for libel. There was, then, no necessity for this newspaper publication, and the defendant, by resorting to it, has taken the law into his own hands unwarrantably, instead of resorting to those tribunals which the laws have constituted for the correction of these offenses. This, then, is a case in which the defendant cannot be allowed to excuse himself by showing the truth of the accusation which he has unjustifiably made. He had no right to arraign the prosecutor before the public in the form which he adopted, and thus destroy the reputation of his house, without leaving him any means of showing his innocence of the charges made against him. The occasion was not a proper one for a newspaper denunciation. Motion for a new trial overruled.

CHAPTER XXI.

PERJURY.

If any one swear a false oath on a relic, and he be convicted, let him forfeit his lands, or half his "wer," and let that be common to lord and bishop. And let him not be thenceforth oath-worthy; unless he the more thoroughly before God make "bot," and find him "borh" that he will ever after abstain from the like.

Laws of Cnut, II, 36.

Perjury is a crime committed when a lawful oath is ministered by any that hath authority, to any person, in any judicial proceeding, who sweareth absolutely, and falsely in a matter material to the issue, or cause in question, by their own act, or by the subornation of others. 3 Coke, Inst. 164.

CUSTODES v. GWINN.

(Upper Bench, 1652. Style, 324.)

Howell Gwinn was indicted of perjury for taking of a false oath in an affidavit made before a Master of the Chancery, and was found guilty. It was moved in arrest of judgment.1

(2) It doth not appear that the party took a false oath, for it appears not whether the Master of the Chancery had any power to take this oath, and if he had not then it cannot be perjury.

Maynard. It is not necessary to show that a Master of the Chancery hath authority to take an oath, for it is the common course and practice of the Court of Chancery for the Masters to take oaths.

NICHOLAS, Justice. A Master of the Chancery of common right hath no power to take an oath, and therefore in this case you should have pleaded precisely that he had authority, otherwise it cannot be good.

ROLLE, Chief Justice. Perjury at the common law is intended to be in some court, and legal proceedings for a false oath made before us not touching the matter in question between the parties, an indictment. of perjury lies not, and it appears not here that the Chancery took notice of the affidavit, for nothing was done upon it. If one make a false oath, the party is punishable for it by an action upon the case, in case it be not perjury, for which he may be indicted for it. A false oath is one thing, and perjury is another thing, for one is judicial, and the other is extrajudicial. And the law inflicts greater punishment

1 Part of this case is omitted.

for a false oath made in a court of justice than if it be made elsewhere, because of the preservation of justice.

JERMYN, Justice, said that perjury takes its name from perverting of justice, and therefore it is intended to be in a court of justice. The court held the indictment ill, and gave judgment against the Custodes.

GURNEIS' CASE.

(Star Chamber, 1611. 3 Coke, Inst. 166.)

Damages were awarded to the plaintiff in the Star Chamber according to the value of his goods riotously taken away by the defendant. The plaintiff caused two men to swear the value of his goods that never saw nor knew them. And though that which they swear was true, yet because they knew it not, it was a false oath in them, for the which both the procurer and the witnesses were sentenced in the Star Chamber.1

STATE v. HATTAWAY.

(Supreme Court of South Carolina, 1819. 2 Nott & McC. 118, 10 Am. Dec. 580.) Indictment for perjury. The facts were: One Shackleford having been indicted for stealing a cow, and afterwards discharged, brought an action against the prosecutor for malicious prosecution. In this action Hattaway was called as a witness, and testified that Shackleford purchased the cow in question from one Carter, and that he was present at the time. Being asked where he lived at the time, he said, "near Carter's, perhaps within 100 yards," whereas it was proved that he did not live in the state. The perjury assigned was his false testimony as to where he lived.

NOTT, J. If the defendant lived 100 miles off, and was present at the sale, he was a competent witness to prove it. If he lived within 50 yards, and was not present, he could know nothing of the matter.

1 "Granting the materiality of the fact, whether it be a statement of knowledge, or of information or belief, or a simple statement of a fact, if the witness knows that the fact is not so, or that he has no such information, or no such belief, he is guilty. But if he only swears rashly to his belief of a matter of which he does not profess to have personal knowledge, the jury cannot be permitted to decide on the reasonableness of his belief, except as tending to show whether he did believe. In short, perjury is always of some matter of fact; and belief may be a fact. In this case, the only questions of fact put in issue by the indictment and by the law are: Was the statement false, and did the defendant know it to be false? In this respect, it is like the offense of passing a counterfeit note, knowing it to be counterfeit. Proof of reasonable cause of belief may warrant a jury to find knowledge; but it is not the legal equivalent of knowledge." Lowell, J., in United States v. Moore, Fed. Cas. No. 15,803.

2 Part of the opinion is omitted.

MIK.CR.L.-38

It was not a fact of such a nature as to be better known to him, in consequence of the contiguity of residence. It may sometimes be difficult to determine how far the evidence of a particular fact may go to strengthen the testimony of a witness to a more material point in a case, and perhaps no precise and definite rule can be laid down on the subject. In all cases, therefore, so highly penal, where the question is of a doubtful character, I should incline to favor the side of the accused. In the case now under consideration, I cannot conceive that the testimony was either directly or indirectly material to the issue. I am of opinion, therefore, that a new trial ought to be granted. COLCOCK, JOHNSON, RICHARDSON, and GANTT, JJ., concurred.

ARDEN v. STATE.

(Supreme Court of Errors of Connecticut, 1836. 11 Conn. 408.) WILLIAMS, C. J. The only question in this case is whether the false taking of a poor debtor's oath before a magistrate authorized to administer it constitutes the crime of perjury.1

Perjury, as defined by Lord Coke is when a lawful oath is administered, by any that hath authority, to any person, in a judicial proceeding, who sweareth absolutely and falsely, in a matter material to the issue or cause in question, by their own act, or the subornation of others. 3 Inst. 163. Hawkins says it seemeth to be a willful false oath, by one who, being lawfully required to depose the truth in any proceeding in a course of justice, swears absolutely to a matter of some consequence to the point in issue, whether he be believed or not. 1 Hawk. P. C. c. 69, § 1. Chitty adopts Lord Coke's definition; and Russell speaks of a proceeding in a court of justice. 2 Russ. 1751. His American editor concurs with Judge Johnson, in the case before cited, that the word "court" is substituted for the word "course" of justice. And it is believed that those who speak of a judicial proceeding, and of a proceeding in a court of justice, mean the same thing. It is apparent it cannot be intended that the oath must be administered before a court. It need not be before a court of record. 2 Rol. Abr. 257. It may be before a court baron. 1 Mod. 55; Winch, 3. Or a court of requests. Hut. 34. Or an ecclesiastical court. Cro. Eliz. 609; 1 Sid. 454. Or before commissioners. 1 Show. 397; Cro. Car. 97. Or in an answer in chancery. Cro. Car. 321, 327, 353; Cro. Eliz. 907; 2 Burr. 1189. Or upon a complaint to the Chancellor, on account of the arrest of one of the officers of his court. 1 Term Rep. 63. So, too, it may be upon some collateral matter, not directly connected with the issue of a cause on trial, as an affidavit to hold to bail. Peake's Cas. 112. Or when one, who offers himself as bail, swears his property to be greater than it is. Cro. Car. 146. And the crime

1 Part of the opinion is omitted.

may be committed, in some court of justice having power to administer oaths, or before some magistrate or proper officer invested with similar authority, in some proceeding relative to a civil suit, or criminal prosecution. 4 Bl. Com. 137.

In the case before the court it is not denied that the oath was false, the intention willful, the oath lawfully administered, and the assertion absolute. But it is denied that it is in the course of judicial proceeding, and that it is material.

In support of the first proposition, it is said that it was decided, in the case of Betts v. Dimon, 3 Conn. 107, that the magistrate in such a case acted, not judicially, but ministerially, and therefore it cannot be perjury. But the administration of an oath to a witness giving a deposition, or to a party making an affidavit to procure a continuance of his cause, or to bail as to the amount of his property, is not a judicial, but ministerial, act, and yet it is not to be doubted that the deponent might be guilty of perjury; for all such false oaths as are taken before those who are in any way intrusted with the administration of public justice, in relation to any matter before them in debate, are properly perjuries. 1 Hawk. P. C. c. 60, § 3.

Here the magistrate had a general power to administer oaths, and the particular power to administer this oath. He was intrusted with a portion of the administration of public justice; for he was to decide, in some capacity, whether the oath should be administered. The question is not so much in what character the magistrate acted, as what was to be the effect of his act? Would it affect the course of public justice? For that purpose we must look at the situation of these parties. After the usual course of litigation, the creditor had obtained a judgment and execution against his debtor, and had confined him in prison. The debtor wished to be relieved from the inconvenience of this judgment, and to deprive the creditor of one of those means of satisfying it which the law had given him, and for this purpose took the oath which has given rise to this inquiry; and the effect of it is to relieve him from the operation of the judicial sentence and to deprive the creditor of the benefit of it. Is not, then, the immediate effect to interfere with the course of public justice?

Suppose the application were for a new trial, or an audita querela, or a habeas corpus, and a similar oath had been taken before a magistrate; could there be a doubt that it would be perjury? The effect in some of these cases might be greater; but, as it respects this question, they seem to be of a similar character. They all are intended, after final judgment, to vary the situation and rights of the litigant parties, and to deprive the creditor, in a greater or less degree, of the fruits of that judgment. If, then, this be not, technically speaking, a judicial proceeding, the court cannot say it is an extrajudicial proceeding; but, on the other hand, they think it is a proceeding calculated materially to affect the course of justice.