solemnity of the sanction, that the declaration was the truth, and the other an error or a falsehood; though the latter, being inconsistent with what he has sworn, may form important evidence with other circumstances against him. And if both the contradictory statements were delivered under oath, there is still nothing to show which of them is false when no other evidence of the falsity is given. If, indeed, it can be shown that before making the statement on which perjury is assigned the accused had been tampered with, or if any other circumstances tend to prove that the statement offered as evidence against the prisoner was true, a legal conviction may be obtained, and provided the nature of the statement was such that one of them must have been false to the prisoner's knowledge slight corroborative evidence would probably be deemed sufficient. But it does not necessarily follow that because a man has given contradictory accounts of a transaction on two occasions he has therefore committed perjury. For cases may well be conceived in which a person might very honestly swear to a particular fact, from the best of his recollection and belief, and might afterwards from other circumstances be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Moreover, when a man merely swears to the best of his memory and belief, it of course requires very strong proof to show that he is wilfully perjured. The rule requiring something more than the testimony of a single witness on indictments for perjury is confined to the proof of the falsity of the matter on which the perjury is assigned. Therefore the holding of the Court, the proceedings in it, the administering the oath, the evidence given by the prisoner, and, in short, all the facts, exclusive of the falsehood of the statement which must be proved at the trial, may be established by any evidence that would be sufficient were the prisoner charged with any other offence. For instance, if the false swearing be that two persons were together at a certain time, and the assignment of perjury

be that they were not together at that time, evidence by one witness that at the time named the one person was at London, and by another witness that at the same time the other person was in York, will be sufficient proof of the assignment of perjury: 2 Taylor on Evidence, par. 876,

et seq.

On an indictment for perjury alleged to have been committed at the Quarter Sessions, the chairman of the Quarter Sessions ought not to be called upon to give evidence as to what the defendant swore at the Quarter Sessions: R. v. Gazard, 8 C & P. 595.

But this ruling is criticized by Greaves, note n, 3 Russ. 86, and Byles, J., in R. v. Harvey, 8 Cox, 99, said that though the judges of Superior Courts ought not to be called upon to produce their notes, yet the same objection was not applicable to the judges of inferior courts, especially where the judge is willing to appear: 3 Burn's Just. 1243.

In R. v. Hook, Dears. & B. 606, will be found an interesting discussion on the evidence necessary upon an indictment for perjury.

The Imperial Statute, corresponding to section 4 of c. 154, Rev. Stat., unrepealed, (post, under next section), authorizes the judge to commit, unless such person shall enter into a recognizance and give sureties. Our statute gives power to commit or permit such person to enter into a recognizance and give sureties.

Greaves remarks on this last mentioned clause: "The crime of perjury has become so prevalent of late years, and so many cases of impunity have arisen, either for want of prosecution, or for defective prosecution, that this and the following sections were introduced to check a crime which so vitally affects the interests of the community.

"It was considered that by giving to every court and person administering oaths a power to order a prosecution for perjury at the public expense, coupled with a power of commitment in default of bail, many persons would be

deterred from committing so detestable a crime, and in order to effectuate this object the present clause was framed, and as it passed the Lords it was much better calculated to effect that object than as it now stands.

"As it passed the Lords it applied to any justice of the peace. The committee in the Commons confined it, to justices in petty and special sessions,-a change much to be regretted, as a large quantity of business is transacted before a single justice or one metropolitan or stipendiary magistrate, who certainly ought to have power to commit under this clause for perjury committed before them.

Again, as the clause passed the Lords, if an affidavit, etc., were made before one person, and used before another judge or court, etc., and it there appeared that perjury had been committed, such judge or court might commit. The clause has been so altered that the evidence must be given, or the affidavit, etc., made before the judge, etc., who commits. The consequence is that numerous cases are excluded; for instance, a man swears to an assault or felony before one justice, and on the hearing before two it turns out he has clearly been guilty of perjury, yet he cannot be ordered to be prosecuted under this clause. Again, an affidavit is made before a commissioner, the court refer the case to the master and he reports that there has been gross perjury, or the court see on the hearing of the case before them that there has been gross perjury committed, yet there is no authority to order a prosecution under this clause, So, again, a man is committed for trial on the evidence of a witness which is proved on the trial to be false beyond all doubt, yet if such witness be not examined, and do not repeat the same evidence on the trial, the court cannot order him to be prosecuted.

"It is to be observed, that before ordering a prosecution under this clause, the court ought to be satisfied, not only that perjury has been committed, but that there is a 'reasonable cause for such prosecution.' Now it must ever

be remembered that two witnesses, or one witness and something that will supply the place of a second witness are absolutely essential to a conviction for perjury. The court, therefore, should not order a prosecution unless it sees that such proof is capable of being adduced at the trial; and as the court has the power, it would be prúdent in every case, if practicable, at once to bind over such two witnesses to give evidence on the trial, otherwise it may happen that one or both may not be then forthcoming to give evidence. It would be prudent also for the court to give to the prosecutor a minute of the point on which, in its judgment, the perjury had been committed, in order to guide the framer of the indictment, who possibly may be wholly ignorant otherwise of the precise ground on which the prosecution is ordered. It is very advisable, also, that where the perjury is committed in giving evidence, such evidence should be taken down in writing by some person who can prove it upon the trial, as nothing is less satisfactory or more likely to lead to an acquittal than that the evidence of what a person formerly swore should depend entirely upon mere memory. Indeed, it may well be doubted whether it would be proper to order a prosecution in any case under this Act where there was no minute in writing of the evidence taken down at the time.

"Again, it ought to be clear, beyond all reasonable doubt, that perjury has been wilfully committed before a prosecution is ordered": Lord Campbell's Acts, by Greaves,

22.

See section 691 as to proof of trial at which perjury was committed: R. v. Coles, 16 Cox, 165.

It is to be observed that this section is merely remedial, and will not prevent a regular record from being still admissible in evidence, and care must be taken to have such record drawn up in any case where the particular averments in the former indictments may be essential: Lord Campbell's Acts, by Greaves, 27.

Subornation of Perjury.-Subornation of perjury is an offence as perjury itself, and subject to the same punishment.

Section 145, declaring all evidence whatever material with respect to perjury, also applies to subornation of perjury.

Section 691, as to certificate of indictment and trial, applies also to subornation of perjury. Subornation of perjury, by the common law, seems to be an offence in procuring a man to take a false oath, amounting to perjury, who actually taketh such oath: 1 Hawk. 435.

But it seemeth clear that if the person incited to take such an oath do not actually take it, the person by whom he was so incited is not guilty of subornation of perjury, yet it is certain that he is liable to be punished, not only by fine, but also by infamous corporal punishment: 1 Hawk. loc. cit. This crime is incitement, section 530.

An attempt to suborn a person to commit perjury, upon a reference to the judges was unanimously holden by them to be a misdemeanour: 1 Russ. 85.

And upon an indictment for subornation of perjury if it appears, at the trial, that perjury was not actually committed, but that the defendant was guilty of the attempt to suborn a person to commit the offence, such defendant may be found guilty of the attempt, section 711.

In support of an indictment for subornation the record of the witness's conviction for perjury is no evidence against the suborners, but the offence of the perjured witness must be again regularly proved. Although several persons cannot be joined in an indictment for perjury, yet for subornation of perjury they may: 3 Burn's Justice,

1246.

Indictment, same as indictment for perjury to the end, and then proceed :-And the Jurors aforesaid further present, that before the committing of the said offence by the