such warrant the person be arrested and afterwards rescued, those who are guilty of the rescue may be convicted of a misdemeanor. R. v. Stokes, 5 C. & P. 148.

As to evidence for the defendant, it may be observed, that any circumstances that will excuse a breach of prison will excuse a rescue. See ante, p. 1037. 2 Hawk. c. 21, ss. 1, 2.

SECT. 4.

BEING AT LARGE DURING A SENTENCE OF PENAL SERVITUDE.

Statutes.

5 G. 4, c. 84 (Transportation Act, 1824), s. 22—Punishment Venue.]— If any offender who shall have been or shall be so sentenced or ordered to be transported or banished, or who shall have agreed or shall agree to transport or banish himself or herself, on certain conditions, either for life or any number of years, under the provisions of this or any former Act (e.g., 2 G. 2, c. 25, s. 2, post, p. 1051), shall be afterwards at large, within any part of his Majesty's dominions without some lawful cause, before the expiration of the term for which such offender shall have been sentenced or ordered to be transported or banished, or shall have so agreed to transport or banish himself or herself [every such offender so being at large, being thereof lawfully convicted, shall suffer death as in cases of felony, without the benefit of clergy, rep. 4 & 5 W. 4, c. 67, post, p. 1041], and such offender may be tried either in the county or place where he or she shall be apprehended, or in that from whence he or she was ordered to be transported or banished;

And if any person shall rescue or attempt to rescue, or assist in rescuing or attempting to rescue, any such offender from the custody of such superintendent or overseer, or of any sheriff or gaoler or other person conveying, removing, transporting, or reconveying him or her, or shall convey or cause to be conveyed any disguise, instrument for effecting escape, or arms, to such offender, every such offence shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted;

And whoever shall discover and prosecute to conviction any such offender so being at large within this kingdom, shall be entitled to a reward of twenty pounds for every such offender so convicted. [See post, p. 1043. This enactment is applied to penal servitude by 20 & 21 Vict. c. 3, s. 3, ante, p. 235.]

Sect. 23-Indictment.]-In any indictment against any offender for being found at large contrary to the provisions of this or of any other Act now made or hereafter to be made, and also in any indictment against any person who shall rescue or attempt to rescue, or assist in rescuing any such offender from such custody, or who shall convey or cause to be conveyed any disguise, instrument for effecting escape, or arms, to any such offender, contrary to the provisions of this or any other Act now made or hereafter to be made, whether such offender shall have been tried before any court or judge within or without the United Kingdom, or before any naval or military court-martial, it shall be sufficient to charge and allege the order made for the transportation or banishment of such offender,

without charging or alleging any indictment, trial, conviction, judgment, or sentence, or any pardon or intention of mercy, or signification thereof, of or against, or in any manner relating to such offender.

Sect. 24-Evidence of conviction.]-The clerk of the court or other officer having the custody of the records of the court where such sentence or order of transportation or banishment shall have been passed or made, shall, at the request of any person on his Majesty's behalf, make out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the sentence or order for his or her transportation or banishment (not taking for the same more than six shillings and eightpence), which certificate shall be sufficient evidence of the conviction, or sentence or order for the transportation or banishment of such offender; and every such certificate, if made by the clerk or officer of any court in Great Britain, shall be received in evidence, upon proof of the signature and official character of the person signing the same; and every such certificate, if made by the clerk or officer of any court out of Great Britain, shall be received in evidence, if verified by the seal of the court, or by the signature of the judge, or one of the judges of the court, without further proof. See 8 & 9 Vict. c. 113, s. 1 (ante, p. 378); 14 & 15 Vict. c. 99, s. 13 (ante, p. 360); 34 & 35 Vict. c. 112, s. 18 (ante, p. 361).

4 & 5 W. 4, c. 67 (Transportation Act, 1834).]—Recites 5 G. 4, c. 84, s. 22, supra, and enacts, that any person convicted of any offence above specified in the said Transportation Act, 1824, or of aiding or abetting, counselling or procuring the commission thereof, shall be liable to be transported beyond the seas for his or her natural life. [Now penal servitude for life, or such less punishment as is provided by 54 & 55 Vict. c. 69, s. 1 (ante, p. 235).]

20 & 21 Vict. c. 3 (Penal Servitude Act, 1857), s. 3-Provisions of former enactments as to persons unlawfully at large while under sentence of transportation to apply to penal servitude.]—Ante, p. 235.

22 Vict. c. 25 (Convict Prisons Abroad Act, 1859), ss. 2, 14—Rescue or attempted rescue of persons sent to penal servitude in British possessions abroad.]-Not triable in England, see s. 19.

Indictment. (5 G. 4, c. 84, s. 22, ante, p. 1040.)

Middlesex, to wit:-The jurors for our lord the King, upon their oath present, that heretofore, to wit [at the general quarter sessions of the peace, holden at, so continuing the caption of the indictment to the words "county committed" (see ante, p. 93); then proceed thus]: it was ordered that J. S. should be kept in penal servitude for the term of seven years (or as the case may be), which said order still remains in full force and effect, and not in the least reversed or made void. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, that is to say, after he the said J. S. was so ordered to be kept in penal servitude as aforesaid, and before the expiration of the term of seven years for which he the said J. S. was so ordered to be kept in penal servitude as aforesaid, to wit, on the first day of June, in the year of our Lord -, feloniously and unlawfully and without any lawful cause or excuse whatsoever was at large within the United Kingdom of

A.C.P.

66

Great Britain and Ireland, to wit, at the parish of B., in the county of M.; against the form [as ante, p. 465].

The word "feloniously" is essential (R. v. Horne, 4 Cox, 263). It is sufficient in the indictment to charge and allege the order made for the sentence of the offender, without charging or alleging any indictment, trial, conviction, judgment, or sentence, or any pardon, or intention of mercy, or signification thereof, of, or against, or in any manner relating to such offender. 5 G. 4, c. 84, s. 23 (ante, p. 1040). See R. v. Fitzpatrick, R. & R. 512. The venue may be laid either in the county where the defendant was apprehended, or in the county whence he was ordered to be transported or kept in penal servitude. 5 G. 4, c. 84, s. 22.

Felony: 5 G. 4, c. 84, s. 22: penal servitude for life or for not less than three years, or imprisonment, with or without hard labour, not exceeding two years. 4 & 5 W. 4, c. 67, supra; 20 & 21 Vict. c. 3 (ante, p. 235); 54 & 55 Vict. c. 69, s. 1 (ante, p. 235).

This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126).

Evidence.

The Penal Servitude Act, 1857 (20 & 21 Vict. c. 3, ante, p. 235), abolished sentences of transportation and substituted penal servitude. Convicts can be sent abroad to serve the sentence (22 Vict. c. 25), but there are not at present any regulations for exercising this power. The Act of 1857 (20 & 21 Vict. c. 3), s. 3, provides that all Acts and provisions then (26th June, 1857) applicable to the punishment of offenders under sentence or orders of transportation, if at large without lawful cause before the expiration of their sentence, and all provisions then applicable to and in the case of persons under sentence or order of transportation, are to apply to and in the case of persons under sentence or order of penal servitude, as if they were persons under sentence or order of transportation. It is therefore necessary to retain in this place the provisions of 5 G. 4, c. 84, s. 22, and 4 & 5 W. 4, c. 67. It will also be seen (ante, pp. 1031, 1032) that there is no express provision as to escape of penal servitude prisoners from a convict prison in England.

Prove the sentence of transportation or penal servitude by a certificate in writing, which the clerk of the court, or other officer having the custody of the records of the court where such order was made (see R. v. Jones, 2 C. & K. 524: R. v. Parsons, L. R. 1 C. C. R. 24; 35 L. J. (M. C.) 167; 5 G. 4, c. 22, s. 24), must give upon application, and which is made evidence if it purport to be signed by the person having the custody of the records of the courts, without any proof of the signature or official character of such person (8 & 9 Vict. c. 113, s. 1, ante, p. 378); or if it be a court out of Great Britain, if verified by the seal of the court, or by the signature of the judge or one of the judges of the court, without further proof. 5 G. 4, c. 84, s. 24; see also 14 & 15 Vict. c. 99, s. 13 (ante, p. 360); 34 & 35 Vict. c. 112, s. 18 (ante, p. 361). The certificate must contain the effect and substance of the indictment and conviction of such offender, and of the sentence of penal servitude. Merely stating that the prisoner was convicted of felony, without stating the nature of the felony, is insufficient. See R. v. Watson, R. & R. 468, decided on 56 G. 3, c. 27, 8. 8 (rep.), which is in substance the same as 5 G. 4, c. 84, s. 22. Prove also the prisoner's identity.

Prove also that the defendant was at large before the expiration of the term for which he was ordered to be kept in penal servitude. The fact of the sentence being in force when the defendant was found at large is sufficiently proved by the certificate of the conviction and sentence-the

judgment remaining unreversed; although it appear on the face of the certificate that the sentence was one which could not legally have been inflicted on the defendant for the offence of which, according to the certificate, he had been convicted. R. v. Finney, 2 C. & K. 774. For the defence, it may be proved that the prisoner is at large conditionally under a licence of ticket-of-leave or otherwise, and that the conditions have been observed. See 27 & 28 Vict. c. 47, ss. 4, 58; 34 & 35 Vict. c. 112, ss. 4, 5; 54 & 55 Vict. c. 69, ss. 2-5; or that he has been pardoned. R. v. Miller, 2 W. Bl. 797; 1 Leach, 74. Where the terms of a conditional pardon are not observed the sentence revives. R. v. Madan, 1 Leach, 223: Aickles' case, Id. 390.

The judge at the trial has power to order the county treasurer to pay the prosecutor the reward under 5 G. 4, c. 84, s. 22. R. v. Emmons, 2 M. & Rob. 279: R. v. Ambury, 6 Cox, 79.

PERJURY, SUBORNATION

SECT. 5.

AND

ATTEMPTED

SUBORNATION OF PERJURY,

FABRICATION OF EVIDENCE, AND FALSE OATHS AND DECLARATIONS,

Common Law.

Perjury by a witness has long been treated as an offence at common law (2 Hale, 192); but, prior to the Reformation, it seems to have been usually dealt with as an ecclesiastical offence (see 13 Edw. 1 (circumspecté agatis), 2 Pollock & Maitland, Hist. Eng. Law, 539,541). 32 H. 8, c. 9, s. 3, provides for the punishment of persons suborning witnesses to procure perjury by false verdict (3 Co. Inst. 184). 5 Eliz. c. 9, deals with perjury by suborned or other witnesses in the courts of common law and chancery, and other courts named, and gives jurisdiction to the judges of assize and quarter sessions (s. 3). It saves the jurisdiction of spiritual courts and of judges who at its passing had absolute power to punish perjury (s. 7). In 1612 it was held that perjury by a witness for the crown was punishable at common law; re Rowland ap Eliza, 3 Co. Inst. 164; and this view has been since treated as applying to perjury in civil proceedings or trials for misdemeanor before courts of justice. It is extended by 1 Anne, st. 2, c. 9, s. 3, to witnesses for the defence in treason and felony.

The legal offence of perjury can only be committed in certain cases of oaths taken under the common law, or on oaths taken under particular statutes in which the offence is provided for. It by no means necessarily follows that perjury must be committed in a false oath taken under a particular statute. Though a high misdemeanor, it would not be perjury unless so made by the statute requiring the oath, and there are many cases of statutes requiring oaths and not creating the offence. R. v. Mudie, 1 M. & Rob. 128, 131, Tenterden, L.C.J. It has, therefore, been usual in creating new courts or authorizing new kinds of proceedings, judicial or quasi-judicial, to enact that wilful false evidence on oath shall be punished as perjury. Most of these statutes are collected in the Official Index to the Statutes (ed. 1904), tit. “ Perjury,” 1, 2, 3, 4, 5, to which reference should be made for special provisions. Those of more general concern are printed post, p. 1051, et seq. The following pages, subject to the particular terms of these statutes, state the law generally as to perjury. Formerly when a defendant in a criminal case was not a competent

witness, he could not be indicted for perjury if sworn by mistake. R. v. Clegg, 19 L. T. (N. S.) 47, Hannen, J. But he can be indicted for perjury when he is a competent witness (R. v. Baker [1895] 1 Q. B. 797), under 61 & 62 Vict. c. 36 (ante, pp. 392-397), or any other Act. See R. v. Bartley, Staffordshire Assizes, July, 1899, Day, J.: R. v. Wookey, 63 J. P. 409: R. v. Dean, 17 N. S. W. Rep. (Law) 357; and see 33 L. J. Newsp. 392, 603; 34 L. J. Newsp. 100.

An oath, or affirmation, to amount to perjury, must be taken (1) in a judicial proceeding, and (2) before a competent jurisdiction; it must also be (3) material to the question depending, and (4) false, and (5) the witness must know it to be false (R. v. Aylett, 1 T. R. 63, 69; 1 R. R. 152: R. v. Dunn, 1 D. & Ry. 10; and see Steph. Dig. Cr. Law (6th ed.), 106), or not know it to be true. See post, p. 1050.

1. Judicial proceeding.]-It must be taken in a judicial proceeding. As if the defendant swear falsely, when examined as a witness at a trial; 3 Co. Inst. 166; or in an affidavit in the courts of King's Bench, Common Pleas, Chancery, etc.; 5 Mod. 348; 1 Show. 335, 397; 1 Rolle Rep. 79, Coke, C.J.; or upon a commission for the examination of witnesses; Cro. Car. 99; see 1 B. & P. 210; 42 G. 3, c. 85, s. 5; 1 W. 4, c. 22, s. 7; 22 Vict. c. 20, s. 2; or in justifying bail in any of the courts; or upon an examination before a magistrate; or in a judicial proceeding in a court baron; 5 Mod. 348; 1 Mod. 55, Twisden, J.; or ecclesiastical court; 5 Mod. 348: R. v. Worley, 3 Cox, 535; or before a local marine board; R. v. Tomlinson, L. R. 1 C. C. R. 49; 36 L. J. (M. C.) 41; or before a judge trying an election petition; 31 & 32 Vict. c. 125, s. 21; or a grand jury; R. v. Hughes, 1 C. & K. 519; 19 & 20 Vict. c. 54, s. 1; or any other court, whether of record or not, e.g., a naval-court martial; R. v. Heane, 4 B. & S. 947; 33 L. J. (M. C.) 115; 29 & 30 Vict. c. 109, s. 67; or before a commissioner for oaths where the false oaths if taken in a judicial proceeding before a competent court would have been perjury. 52 & 53 Vict. c. 10 (Commissioners for Oaths Act, 1889), s. 7 (post, p. 1054). See 1 Hawk. c. 69, s. 3. Perjury may be assigned on an oath taken before the commencement of a legal proceeding, but for the purposes of such proceeding; King v. R., 14 Q. B. 31; 18 L. J. (M. C.) 253 (Ex. Ch.); or an affidavit made for the purposes of a motion in chancery, though the motion is never made. R. v. White, M. & M. 271. In R. v. Foster, R. & R. 459, a false oath taken before a surrogate to procure a marriage licence was held not sufficient to support a prosecution for perjury at common law see 1 Russ. Cr. (6th ed.) 295. A surrogate has, under 4 G. 4, c. 76, s. 14, the power and duty to administer an oath before granting a licence. R. v. Fairlie, 9 Cox, 209. In such cases it has been usual to indict as for a mere misdemeanor at common law, and such an indictment is certainly sustainable; see R. v. Chapman, 1 Den. 432; 2 C. & K. 816; 18 L. J. (M. C.) 152; 3 Cox, 467: R. v. Hodgkiss, L. R.1 C. C. R. 212; 39 L. J. (M. C.) 14, and post, p. 1071. And if an indictment for such a common law misdemeanor contains the words "and so the defendant did commit wilful and corrupt perjury," this allegation may be rejected as surplusage, and the defendant may nevertheless be convicted of the common law misdemeanor; R. v. Hodgkiss, ubi supra; in which case it was held that making a false affidavit before a commissioner for taking oaths in the Queen's Bench for the purpose of getting a bill of sale filed under the Bills of Sale Act, 1854, was a misdemeanor, though not perjury. But now to make such an affidavit is perjury by s. 17 of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31). If on a prosecution for taking a false oath before a surrogate to procure a marriage licence, the indictment