147. 1 Leach, 71. And it is necessary to state expressly that he was sworn, and the averment that " tacto per se sacro evangelio deposuit," will not supply its place, Cro. Eliz. 105. But there is no occasion to show whether he took the false oath by his own act or by the subornation of another, though the words of the statute are, "If persons by subornation, &c. or by their own act," &c. shall commit perjury; for as there is no possible motive for the crime which does not range itself under one or the other of these provisions, they are merely superfluous and have no influence on the technicality of the proceedings, 3 Bulst. 147. In indictments on this statute the precedents show how the affidavit, &c. was used, 7 T. R. 319. Skin. 403. Holt, 534. Like other indictments upon statutes, the indictment should conclude contra formam,,though if this be omitted it will be good as at common law, and the defendant may be punished with the penalties which would be inflicted if the act had not been referred to, but cannot be sentenced to the additional punishment prescribed in the statute, 2 Hale, 191, 192. Cro. C. C. 8th Ed. 40. Evidence. In support of an indictment on the statute, the Evidence. evidence should show that the affidavit, &c. was used conformably to the indictment, 7 T. R. 319. ment. The Punishment is prescribed in the statute as recited above. The punishTo this the 2 Geo. II. c. 25. adds the option of transportation for a term not exceeding seven years, or imprisonment for not more than three at the discretion of the judges. And in the case of perjury at elections, the 18 Geo. II. c. 18. unites both penalties on the statute of Elizabeth and 2 Geo. II.; so that in Price's case, 6 East, 327. the court vacated their former judgment and sentenced the defendants to forfeit 201. each, be imprisoned six months, their oath not to be received, and after the expiration of their confinement to be transported for six years. Costs. The prosecutor unless he is also a witness, and his name appears as such on the back of the bill, cannot claim costs as a party grieved if the indictment is at common law, but only when it is framed on the statute, 1 Esp. R. 126. III. PERJURIES MADE FELONY. Offence, &c. It is enacted by 31 Geo. II. c. 10. s. 24. That Offence, &c. whosoever shall willingly and knowingly take a false oath, or procure any person to take a false oath to obtain the probate of any will* or wills, or to obtain letters of administration in or- [*317] der to receive the payment of any wages, pay, or other allowances of money, or prize money due or that were supposed to be due, to any officer, seaman, or other person entitled or supposed to be entitled to wages, pay, or other allowances of money or prize money for service due on board of any ship or vessel of his majesty, &c. or the executor, administrator, wife, relation, or creditor of any such officer or seaman, or other person who has really served or was supposed to have served on board of any ship or vessel of his majesty, &c. shall be deemed guilty of felony without benefit of clergy. And by 28 Geo. II. c. 13. s. 14. for the relief of insolvent debtors, any prisoner perjuring himself intending to take the benefit of that act is made equally criminal. In the proof of an offence under the first of these statutes, it must be shown that the prisoner took the oath by positive evidence, and mere circumstantial testimony will not suffice, 1 Leach, 327. The offence. [*318] Indictment. IV. SUBORNATION OF PERJURY. Subornation of Perjury, at common law, is the procuring another to commit legal perjury, who, in consequence of the persuasion, takes the oath, to which he has been incited, Hawk. b. 1. c. 69. s. 10. By 5 Eliz. c. 9. the operation of which as to perjury itself we have already considered, it is enacted that whoever shall unlawfully and corruptly procure any witness or witnesses by letters, rewards, promises, or by any other sinister and unlawful labour or means whatsoever, to commit any wilful and corrupt perjury, in any matter or cause whatsoever depending in suit and variance, by any writ, action, bill, complaint or information, in any wise concerning any lands, tenements or hereditaments, goods, chattels, debts or damages in any of the king's courts, &c. (as enumerated ante, 314.) or shall unlawfully and corruptly procure or suborn any witness or witnesses who shall be sworn to testify in perpetuam rei memoriam shall forfeit 401. and if he has not that sum or property to its amount, he shall be imprisoned one year and stand in the pillory one hour in the town next adjoining the place where the perjury was committed. To render the offence of subornation of perjury complete, either at common law or on the statute, the false oath must be actually taken and no abortive attempt to solicit will bring the offender within its penalties, 3 Mod. 122. 1 Leach, 455. in notes. But the criminal solicitation to commit perjury, though unsuccessful,* is a misdemeanour at common law, punishable not only by fine and imprisonment but by corporal and infamous punishment, 2 East Rep. 17. Hawk. b. 1. c. 69. s. 10. 6 East, 464. Indictment. In the indictment for this offence, it does not seem to be necessary to set forth the means used by the defendant to effect his design, but it is sufficient to state that he "by sinister and unlawful labours and means" procured the commission of the perjury, 2 Lord Raym. 886. 2 Leach, 796. And although it must appear on the face of the proceedings that the intention of the defendant was consummated, the word "procured" or " persuaded" will sufficiently convey this idea, 2 Lord Raym. 889. Though the older precedents generally state a promise of money, the modern ones commonly state merely an endeavour to suborn, 2 Leach, 796. The Evidence. In support of an indictment for subornation, The evithe record of the witness's conviction for perjury is no evidence. dence against the suborners but the offence of the perjured witness, must be again regularly proved, 1 Leach, 455. Punishment. As prescribed in the statute. By the 2 Geo. Punishment. II. c. 25. transportation for seven years, or imprisonment for three, or for any shorter term in either case, may be inflicted on a party convicted of this offence. And it has been said that subornation of perjury should be visited with a heavier punishment than the perjury itself, for plus peccat author quam actor, 5 Co. Rep. 99. 3 Inst. 167. INDICTMENTS FOR PERJURY IN CIVIL PROCEEDINGS vit to hold [*319] London. That S. B. late of the parish of Saint Mary le Bow, For perjury in the ward of Cheap, in London aforesaid, yeoman, wickedly in an affida and maliciously devising and intending unlawfully and unjustly to bail in to aggrieve and oppress one P. K. and also to subject him C. P. sworn without any just cause to divers costs and charges, and also to before decause and procure the sum of forty-one pounds six shillings and puty filazer in London, six pence, to be indorsed upon a process of the court of our in falsely nesaid lord the king of the bench at Westminster, by virtue where- gativing tenof the said P. K. might be arrested to answer in the same court, at der in Bank notes. (b) the suit of W. T., R. B.* and M. T. with an intent that the said P. K. should be compelled to find bail for the said sum of pounds; according to the form of the statute in such case made and provided, (c), or in default thereof should suffer imprisonment, on, &c. at the parish aforesaid, in the ward aforesaid, in London aforesaid, (d) came in his proper person before F. G. gentleman, then being deputy of T. H. gentleman, then filazer of the said court of our said lord the king of the bench of and for the county of Surrey, and then and there in due form of law was sworn and did take his corporal oath upon the Holy Gospel of God, before the said F. G. (he the said F. G. then and there having a competent authority to administer the said oath to the said S. B.) and that the said S. B. be (b) This was the indictment against Samuel Bradford, A. D. 1804, on which he was convicted, see notes as to the offence, process, indictment, evidence, and punishment, ante 302 to 314. Crim. Law. (c) 12 Geo. I. c. 29. s. 2. (d) As to local description, 2 2 P [*320] ing so sworn as aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, then and there upon his oath aforesaid, falsely, maliciously, wickedly, wilfully and corruptly did say, depose, swear and make affidavit in writing in substance and to the effect following, (e) (that is to say) that the said P. K. at the time of making the said affidavit was justly and truly indebted to the said W. T., R. B. and M. T. in the sum of pounds for goods sold and delivered by the said W. T., R. B. and M. T. to the said P. K. and at his request and that no offer had been made to pay the said sum of pounds or any part thereof in any note or notes of the governor and company of the Bank of England, expressed to be payable on demand; as by the said affidavit affiled in the said court of our said lord the king of the Bench at Westminster aforesaid, in the said county of Middlesex, (amongst other things,) more fully appears, (f) whereas in truth and in fact an offer had been made to the said S. B. as clerk to the said W. T., R. B. and M. B. and on their account before the deposing and making of the said affidavit of the said S. B. to wit, on the said, &c. aforesaid, to wit, at, &c. aforesaid, to pay a part of the said sum of pounds, to wit, the sum of thirty-nine pounds in notes of the governor and company of the Bank of England, expressed to be payable on demand, and whereas in truth and in fact an offer had been made to the said W. T., R. B., and M. T. before the deposing, swearing and making the said affidavit of the said S. B.* to wit, on the said, &c. at, &c. aforesaid, to pay a part of the said sum of pounds, to wit, the sum of thirty-nine pounds in notes of the governor and company of the Bank of England expressed to be payable on demand, of which offer the said S. B. at the time of deposing, swearing and making of his said affidavit well knew. (g) And so the jurors aforesaid, upon their oath aforesaid, do say that the said S. B. on the said, &c. at, &c. aforesaid, before the said F. G. so as aforesaid, having a competent authority (h) to administer the said oath to the said S. B. falsely, maliciously and wickedly (i) in manner and form aforesaid, did commit wilful and corrupt perjury, to the great displeasure of Almighty God, in contempt of our said lord the king and his laws, to the great damage of the said (e) This mode of introducing the matter sworn, or the words "in manner following is proper," see ante 309. or it may be stated, that the defendant made affidavit in writing that, &c. as in 4 Wentw. 249, 231. (ƒ) This allegation is unnecessary, ante 311. (g) See same allegation, 4 Wentw. 231. where the defendant swears to believe, this allegation may be proper, but otherwise it is unnecessary: should there not be a venue as to the knowledge, see 4 Wentw. 231. (h) Some of the precedents are, having sufficient and competent power and authority to administer,” &c. 4 Wentw. 272. (i) Some forms run, "falsely and maliciously, wilfully and corruptly." P. K. and against the peace of our said lord the king, his crown, and dignity. in an affida dlesex, in Middlesex. That W. G. late of, &c. gentleman, wickedly For perjury and maliciously contriving and intending unjustly to aggrieve vit held to one G. F. and also the said G. F. to great expense of his mo- bail before nies wickedly to induce and bring and also to cause the sum of deputy filaten pounds to be indorsed upon a process of the court of our zer for Midsaid lord the king of the said C. B. at Westminster, made out false swearby the filazer of and for the said county of Middlesex, by vir- ing to the tue of which the said G. F. might by the name of G. F. be ar- debt. (k) rested to answer in the same court at the suit of T. H. with an intent that the said G. F. should be compelled to find bail for the aforesaid sum of ten pounds, according to the form of the statute in such case made and provided, (1) on, &c. at the parish of Saint Andrew, Holborn, in the county of Middlesex aforesaid, came in his proper person before R. B. gentleman, then deputy of R. E. esquire, then one of the filazers of the said court of Common Pleas, to wit, of and for the said county of Middlesex, (m) which said R. E. then and there was the person who by virtue of the said office of filazer, and according to the custom of the said court, made out the process of the same court in that behalf, against the said G. F. and the said [*321] W. G. did then and there take his corporal oath upon the Holy Gospel of God, before the said R. B. (he the said R. B. then and there having sufficient power and authority to administer the said oath to the said W. G. in that behalf) and that the said W. G. not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and little regarding the laws of this realm or the pains and penalties in the same contained, but his aforesaid oath esteeming as nothing, then and there, on, &c. at, &c. aforesaid, before the said R. B. on his oath aforesaid, falsely, maliciously, wilfully and corruptly did say, depose, swear and make affidavit in writing, which said affidavit is entitled as followeth, to wit, " In the Common Pleas," and the said affidavit so made by the said W. G. was and is as follows, that is to say, W. G. of, &c. gentleman, (meaning himself the said W. G.) maketh oath that G. F. (meaning the said G. F.) is indebted to the said T. H. (meaning the above-named T. H.) in the sum of ten pounds, on a judgment recovered by the said T. H. against the said G. F. (meaning the said G. F.) in his majesty's court of King's Bench at Westminster, whereas in truth and in fact the said G. F. at the time when he the said M. G. took his said oath (k) See form, 4 Wentw. 272. and next precedent, and ante 302 to 314. as to the law, &c. (1) 12 Geo. I. c. 29. (m) It is suggested in 4 Wentw. 272. whether it should be here al leged, that the filazer made out the |