138. Cro. C. C. 7th ed. 573. n. (a), and cases there cited, "or in manner and form following, that is to say," which allow of a greater latitude. (1 Leach 192.) And it seems to be sufficient to state that the defendant did falsely swear, &c. that, &c. Trem. P. C. 189. 1 T. R. 64. and then stating the precise words, with innuendos, or the substance of what was sworn to; a variance, however, in the latter case, which alters the sense, will be fatal. 1 Leach 183. And in an indictment for perjury in an affidavit if a word were accidentally omitted in the original document it must not be supplied as if sworn, but inserted and explained by an innuendo, see 1 Campb. 404, where lord Ellenborough said “the words ought to be set out exactly as sworn, and if there be any mistake, or ambiguity in the words of the oath, that can only be remedied by an innuendo ;" and if in one count the whole of the defendant's evidence be set out continuously, it is reported to have been decided, that the prosecutor must prove it all, though the words, " to the substance and effect following," are prefixed to the recital, 2 Campb. 134. So also, if in an indictment for perjury, before a committee of the House of Commons, on an election petition, it be stated, that A. B. and C. D. were returned to serve as burgesses for the said borough of New Malton, and the indenture, when produced, describes them as returned for Malton, without the epithet, "New," the variance will be fatal. 2. Campb. 134. 141. But it would suffice to say that the election was had," by virtue of a certain precept of the high sheriff of the county, by him duly issued to the bailiff of the said borough of New Malton," though the precept varied, because it is said not to be matter of description. 2 Campb. 140.

In setting forth the matter on the record, on which the assignment is made, as well as the perjury, it is frequently necessary to make use of innuendoes, in order to explain the meaning. An innuendo is defined to be a mode of explaining some matter already expressed; it serves to point out where there is precedent matter, but can never introduce a new charge; it may elucidate what is already averred, but cannot add, or enlarge, or alter its sense. 2 Salk. 513. 1 Ld. Raym. 256. 12 Mod. 139. 9 East. 95. It signifies nothing more than the words, " id est," "scilicet," or or "meaning," or "aforesaid," as explanatory of a matter already sufficiently set forth; as C. D., (meaning the defendant,) or that subject, (meaning the subject in question.) Cowp. 684. And, therefore, if it is intended to explain any thing, the matter must first be put on the record for it to explain: thus the words," he has burnt my barn,” cannot by innuendo be taken to mean a barn full of corn, 4 Co. 20. a. but if it had been stated before by way of inducement, that the owner had a barn full of corn, and then the innuendo had re

ferred to it as such, the meaning would have been complete. 1 Saund. 243. a. n. 4. see 1 Chitty on pleading, 383. And if any use be made of the innuendo which is thus imperfect it cannot be rejected as surplusage, nor will it be cured by verdict, 1 Ld. Raym. 256. Thus if a place be named as N., and afterwards explained by innuendo, to mean N. in Devonshire, though, in the assignment of perjury, it be stated generally that the defendant was not at N., it will be taken to refer to the whole innuendo, and if that be defective, the error will be fatal, 1 Ld. Raym. 261. However, where the oath of the defendant was that he had been arrested before he got to his own house, in the parish of St. Martin's in the fields, an innuendo his house in the Hay-market, in St. Martin's, &c. is good as only a more particular description of the same house: so an oath being that the defendant was arrested upon the steps of his own door, an innuendo that it was the outer door is good, 1 T. R. 70. But where the innuendo and the matter it introduces are altogether impertinent and immaterial, it may be rejected as superfluous, 1 T. R. 65. 9 East. 93. In perjury on an affidavit, it is not necessary to refer to the files of the court, or shew in what way it was afterwards used, for the guilt was complete as soon as the falsehood was pronounced and sanctioned by an oath, 7 T. R. $15.

The assignment of perjury consists of an express contradiction of the defendant's statement on oath, as explained by innuendoes, ́which will suffice, 1 T. R. 70. There can be no doubt that it is necessary to falsify by averments in the indictment, those parts of the defendant's allegations on oath, in which it is intended to charge him on the trial with having committed the offence in question, 2 Maule and Selw. 385 to 392. These averments, or assignments of perjury, as they are technically termed, should be specific and distinct, in order that the defendant may have notice of what he is to come prepared to defend, see id. ibid. and it would, therefore, be insufficient to aver generally, and indefinitely, that the defendant's oath was false; in many instances, however, the indictment may not be vitiated by the assignment being rather more comprehensive than the terms of the defendant's evidence. Thus if the defendant swore," that he never did, at any time, during his transactions with the victualling office, charge more than the usual sum per quarter, beyond the price he actually paid for any grain purchased by him for the said commissioners as their cornfactor," and this assertion be contradicted by an averment that " he did charge more than the usual sum per quarter, for and in respect of such malt or grain," the indictment will not be vitiated by the introduction of the words, "and in respect of," Rex. v. Atkinson. Cro. C. A. 437 to 451. Bac. Abr. Perjury, C. 1 Saund. 249. a. note 1. S. C. If there

Evidence.

be several assignments of perjury in one count it will suffice to prove one of them, and though some be bad, judgment will be given for the crown, on the sufficient assignments, 2 Ld. Raym. 886. 2 Campb. 138, 9. Cro. C. C. 7 Ed. 622. The truth of the defendant's oath is usually negatived in different ways, see forms post 319, &c. and when the defendant swears only to belief it may be proper to aver," that he well knew," the contrary of what he swore, as in 4 Wentw. 231, and post, 320.

After the perjury has been assigned, the indictment usually concludes, "that so the defendant did commit wilful and corrupt perjury," 2 Leach 860. Starkie 195; but it should seem that this conclusion of law from the premises is immaterial, see 2 Leach, 856. ante 1 vol. 232. The court will, in general, refuse to quash an indictment for perjury, however defective, and compel the defendant either to plead or demur, Hawk. b. 2. c. 25. s. 146. Nor will they grant a certiorari to remove it, unless strong ground be shown for the application, Hawk. b. 2. c. 27. s. 28. And the lord chancellor will not grant leave to amend an answer in Chancery, where an indictment for perjury is even threatened, though the party, having no interest, could not be supposed to make the false oath with a corrupt design, 1 Brown, Ch. Rep. 419.

EVIDENCE. In perjury, the accusation must be proved by two witnesses, 10 Mod. 194. 2 Stra. 1230. 13 Ves. J. 134. 2 Bridgman, Index 395. ante 1 vol. 562, 3. because if a person could be found guilty on the testimony of a single witness, there would only be one oath against another, 4 Bla. Com. 358. ; but see ante 1 vol. 562, 3. When the perjury is set out continuously, it must be proved accordingly, although the count contains several distinct assignments of perjury, 2 Campb. 134. And it has been holden that the prosecutor must prove the whole of the defendant's evidence, because he might in one part have corrected any mistake made in another, though when the perjury was committed, on a cross examination respecting a fact, not connected with the general merits of the case, proof of all the cross examination will suffice, Peake 37. 170. But it should seem that this doctrine of compelling the prosecutor to prove more than a prima facie, establishes the defendant's guilt, is an anomaly in the criminal law, for, in general, the party indicting is not bound to anticipate matters of defence, which it lies on the prisoner to bring forward; we have, therefore, seen that it is not necessary to negative the exceptions in a distinct section of a statute, or to aver that the defendant had no excuse for the breach of any positive duty. Nor does it seem that, in this case, the party indicted would sustain hardship in being compelled to shew that he had corrected the part of his evidence assigned, as was done in 1 Sid. 418. In an indictment for perjury, in answer

to a bill in chancery, it is sufficient evidence of the identity of the prisoner with the party who actually took the oath in question, if his hand-writing be proved, as well as that of the master, before whom the answer was sworn, 2 Burr. 1189, 1 Leach 50; for if this were not taken to be sufficient it would be extremely difficult to prove any judicial proceedings, 2 Campb. 509. (as to the proof of identity, see also 1 Leach 327.) It is also sufficient to prove, in the first instance, that the person before whom the oath was taken, acted in the capacity of an officer, to raise a presumption that he had competent authority to receive it, for it is the general presumption of law, that an individual acting in a public capacity is duly authorized so to do, 3 Campb. 433. 4 T. R. 366; but the defendant is at liberty to rebut this prima facie inference, by positive testimony that the appointment was defective; and if he succeed in so doing, he will be entitled to an acquittal, 3 Campb. 435. On an indictment at common law for perjury, in an affidavit sworn before the court of K. B., it is not necessary to prove that the affidavit was filed or exhibited, or in any manner used by the party, 7 T. R. 315. PUNISHMENT.-See ante 1 vol. Index, tit. perjury. The Punishment. punishment for perjury at common law, is fine, imprisonment, and pillory, at the discretion of the court, before whom the offender is convicted. It was anciently capital, afterwards banishment or cutting out of the tongue, 4 Harg. St. Tr. 103. the last of which penalties is one of the few instances of characteristic punishments which have been somewhat fancifully recommended by an ingenious modern writer. Instances, where this offence has been visited with very great severity, are to be found in times comparatively recent. Of these the judgment upon Titus Oates is the most remarkable. He was sentenced to pay a fine of 2000 marks-to be whipped from Aldgate to Newgate, and from Newgate to Tyburn, to be imprisoned for life, and to stand four times every year in the pillory, 4 Harg. St. Tr. 105, 6. But this judgment was declared to be unjust and illegal, and Oates was pardoned the residue of his punishment, 7 Harg. St. Tr. 455, 8 id. 476. When perjury has for its object the destruction of the life of another, it is a crime of as deep a dye as the most aggravated murder; for it aims not only to take away the life of its victim, but to cause his whole property to be forfeited, and his character to be covered with infamy. But the reason why, in this country, a capital punishment is not inflicted on a criminal stained with guilt so enormous, may be, that its denunciation would overawe and terrify witnesses, however honest, and restrain them from giving evidence in those cases where it is most needed, 4 Bla. Com. 96.-In addition, however, to the penalties of fine, imprisonment,

and pillory, which, in their discretion, the judges have always been authorized to inflict, the 2 Geo. II. c. 25, enables them to order the offender to be sent to the house of correction for a term not exceeding seven years, or to be transported for the same period, and makes it felony without benefit of clergy in the convict to escape or return within the time to which his sentence extends. At the present day, as the punishment is thus discretionary, it necessarily varies according to the shades of atrocity with which each individual case is distinguished. There is another circumstance which attends all convictions for perjury, though it forms no part of the judgment at common law; the incapacity of the offender to bear testimony as a witness. See ante 1 vol. 599, 600. When the indictment is framed at common law, a pardon under the great seal restores the competency which the conviction destroyed, 1 Vent. 349. 4 Harg. St. Tr. 682. 1 Esp. R. 94. But where the proceedings are grounded on 5 Eliz. c. 9. this cannot be done without a reversal of the judgment, because it is here made a part of the punishment prescribed, 1 Salk. 289. 5 Esp. Rep. 94. ante 1 vol. 601, 2.

Offence of

II. PERJURY ON STATUTE, 5 ELIZABETH, c. 9. Offence. The 5 Eliz. c. 9. s. 6. after directing the punishment for perjury, under subornation (see post 317, 8.) enacts, that if any person or persons 5 Eliz. c. 9. "wilfully and corruptly commit any manner of wilful perjury, by his or their deposition, in any of the king's courts therein before mentioned, viz. of Chancery, Whitehall, or elsewhere within any of the king's dominions of England or Wales or the marches of the same, where any person or persons shall have authority by virtue of the king's commission patent, or writ to hold plea of land, or to examine, hear, or determine any title of lands or any matter or witnesses concerning the title, right, or interest of any lands or tenements or hereditaments, or in any of the king's courts of record, or in any leet, view, of frank pledge or law-day, ancient demesne court, hundred court, court baron, or in any court or courts of the stannary in the counties of Devon or Cornwall, or being examined ad perpetuam rei memoriam; every such offender shall forfeit twenty pounds, half to the party aggrieved, and have imprisonment by the space of six months without bail or mainprize; and the oath of such offender shall not from thenceforth be received in any court of record in England or Wales, until such judgment shall be reversed, &c. on which reversal the party grieved