4. It is indispensable that the prisoner should be convicted of raising the identical body from the grave, set forth in the indictment, and if it turn out to be another body, he is entitled to an acquittal.

An indictment for this offence to be relevant must not set forth in general that the prisoner has lifted dead bodies from the grave, but that he has lifted an identical body or bodies, described by name and former place of residence. The description of the body must be correct by name, trade, parish, and county; and a variation in any of these particulars, between the evidence on the trial and the statements in the libel, will be fatal to the charge. In the case, accordingly, of Henry Gillies, Glasgow, spring 1828, it was set forth in one of the charges that the prisoner had raised the body of "Robina Macneil, daughter of Archibald Macneil, cotton-spinner." It appeared on the proof that the girl's name was not Robina, but Archibin, a contraction for Archibina, and that she had been christened by that name. An acquittal was immediately directed by the Court on that charge.1 But it is not necessary that the name or abode of the person interred should in every instance be set forth in the libel, or proved at the trial; for if the person were a pauper, vagrant, or one whose name or residence was not known, it is sufficient to describe her as such without any farther designation. So it was found in regard to one of the charges in the case of Henry Gillies, Glasgow, spring 1828, already mentioned.

It is indispensable of course in all trials for this offence, that the interment of the body libelled shall be first proved, and then that the body raised was that body. It is very necessary to be cautious in the consideration of the proof of the identity of the body raised with that interred; for, a priori, it could not be imagined how like one body, after it has been some time in the earth, is to another. Of this a curious instance occurred in the case of Thomas Stevenson or Hodge, 2d June 1823, already mentioned. The witnesses there swore positively that the body found in the prisoner's possession was the body of a young woman who had been interred in the parish of Larbert about three weeks before, and their testimony was so positive

1 Unreported.

that it outweighed with the jury the evidence of several medical gentlemen adduced for the prisoner, who declared that, from the state in which the body was when discovered, it could not have been that of a person interred so long before. After conviction, however, the prisoner demonstrated that the body taken was not that of the young woman which it was supposed to be, but of another woman buried a few days before the crime was committed with which he was charged, and that he had himself raised the body of the other some weeks before, and sold her to a medical man in Edinburgh. It was on this being substantiated that he received the royal pardon, already mentioned.

CHAPTER XX.

OF PERJURY.

PERJURY, or the judicial affirmation of falsehood upon oath, is justly regarded as a transgression of a most heinous nature, both as implying a wilful disregard of the sanction of an oath, and as tending directly to undermine the security on which all judicial proceedings and the most important contracts of life are founded. But as the penalties attached to it are severe, so it is justly held necessary that its perpetration should be committed in a clear and unequivocal manner.

1. It is essential to the crime of perjury that a direct and unequivocal falsehood has been affirmed.

If either the true state of the fact, or the true sense of the pannel's words, be at all doubtful; or if they can in any reasonable way be reconciled with the truth, or with an innocent intention, a charge of perjury will not lie. Towards the relevancy of such a charge, it is indispensable that a direct and absolute falsehood has been affirmed; one, concerning which there is no possibility of doubt, uncertainty, mistaken recollection, or

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evasion.1 Accordingly, in the case of Archibald Mackillop, November 25. 1754, it appeared that this man had been a witness with others in the trial of certain revenue-officers, and had sworn favourably to the pannels. Among other things he had sworn that they addressed the revenue-officers in a moderate and inoffensive manner," desiring them to walk soberly, and make no disturbance." For this he was indicted for perjury, inasmuch as it was offered to be proved, that the men in question went up violently to the officers and demanded their arms, and threatened to blow them up if they resisted. It was objected by the pannels that these circumstances were not conclusive, inasmuch as the two statements might relate to different periods of the affray; and the Court, accordingly, in their interlocutor of relevancy, made an exception of this article of the charge. To the same purpose, in the case of Robert Orrock, December 24. 1711, the pannel had sworn as arrestee in a process of forthcoming, that he owed to Craig, the common debtor, such a sum by bond, and so much more as the residue of the price of malt. In truth he owed him a still greater sum by bill; but the bill might have been omitted from inadvertency, since no question was put about it; and having deponed that he owed a larger sum than that contained in the letters of arrestment, the pannel might naturally have conceived that the subject of the reference was exhausted, and that he was not bound to detail any thing farther in regard to his private affairs. In these circumstances the libel was justly found not relevant.3 Indeed, from the proceedings in the case of Martin Gray, 6th July 1713, it may be inferred, that it is not possible to make a relevant charge in a case of this description upon a mere omission, unless the circumstance omitted was specially put as an interrogatory, and the prisoner distinctly swore to its non existence.1

Such being the just strictness of the law in this particular, it is indispensable that every libel for this offence should set forth specifically and distinctly in what particular, and for what reason the affirmation on oath is charged as having been false. In the case, accordingly, of Lawson of Westerton, June 27. 1785, who was charged with perjury for taking the trust oath, though he well knew " that his pretended title thereto 1 Hume, i. 366; Burnett, 203.- Hume, i. 367.—3 Ibid.— Ibid.; Burnett, 204.

was nominal and fictitious," the Court found the libel irrelevant, in respect the particulars were not specified from which it was inferred that the title was fictitious.1

2. The falsehood, to amount to perjury, must have been affirmed absolutely; under the limitation, however, that an affirmation of non memini or nihil novi, if made in circumstances where the recollection must have been fresh, will not elude the punishment.

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The falsehood must have been directly affirmed; that is to say, a person shall not be liable to a prosecution for perjury if he has sworn doubtfully, or according to the best of his recollection, and with reference to such things about which, from their distant date or otherwise, he might naturally be uncertain. For this limitation must, in all such cases, be distinctly understood, that if the matter concerning which the oath was taken was recent, and such as must have been fresh in the recollection of the swearer, he shall not escape the pains of perjury by pretending imperfect recollection on such a subject.3 Accordingly, in the case of George Montgomery, January 19. 1716, the defence of want of distinct recollection was repelled, in regard to a consent given to the preference of certain creditors, though it was alleged to have been made upwards of two years before. It is always to be recollected, in such cases, that a witness is bound to tell the truth, and the whole truth, by the oath he takes; and that, therefore, the concealment of truth, by suppressing what is recollected, or pretending indistinctness of recollection in what must be well known, is as much a violation of the oath as a direct allegation of what is known to be false.5

3. The falsehood must be wilfully affirmed, as to a matter of fact or undoubted notoriety, by one who knows the truth, and out of malice, partiality, or some corrupt motive, resolves to suppress or alter it.

The wilful nature of the false affirmation is as necessary to a charge of perjury, as the knowledge of goods being stolen to one

1 Hume, i. 368.-2 Ibid.; Burnett, 203.—3 Ibid.—1 Hume, i. 368.—5 Ibid.

of reset of theft.1 In the case, accordingly, of Gabriel Halliday, February 1767, a libel for perjury was found not relevant, in respect it was not alleged that the falsehood had been wilfully affirmed.2

It results from this, that, in the ordinary case, the oath must be to a matter of fact, and not to one of opinion, inference, or apprehension. If, therefore, the matter sworn to be one of opinion merely, as a medical opinion, an oath of calumny, or in lawburrows, it cannot in the general case be made the foundation of a prosecution for perjury. But this is true only in the general case, for if the oath in lawburrows be emitted in circumstances which clearly and indisputably imply a falsehood, it may still be the subject of criminal prosecution.5 In like manner, though an oath of calumny, or on a meditatio fugæ, cannot in the general case be made the ground-work of criminal proceedings, in so far as relates to the opinion which a party entertains of his own case, concerning which the frequency of mental delusion is well known. Yet if it occurs in circumstances where misconception was impossible, as if a party pursues on a bond or bill of which he is proved to have received payment recently before, or knowingly to have the discharge in his possession, or if it assert a fact which is false in addition to involving an absurd opinion, certainly in such a case the general rule must suffer an exception. In like manner, though a medical or scientific opinion cannot in general be challenged as a perjury, because the uncertainty and division of opinion in the medical profession is proverbial; yet if it assert a fact, or draw an inference evidently false, as, for example, if a medical attendant swear that a person is unfit to travel who is in perfect health, or an architect shall declare a tenement to be ruin-ous which is in good condition, certainly the gross falsehood of such an assertion, shall in neither case be protected by the plea that it related to a matter of professional investigation, concerning which a diversity of opinion might exist." It is unneces sary to observe that, in narrating a fact, a medical or scientific witness of any kind is such in pari casu with any other person; and that, if there be any evidence of his having been bribed, or

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1 Hume, i. 368.-2 Maclaurin, No. 75.- Burnett, 204; Hume, i. 369.— Ibid. Smith v. Baird, January 26. 1799, Fac. Coll.; Burnett, 205.6 Burnett, 205; Hume, i. 375.—7 Ibid.