known, and the threat of an indictment for perjury is treated by honest and upright witnesses as a brutum fulmen. § 569. This view of the policy of our law is supported by the history of legislation on the subject of perjury. The law of the Twelve Tables at Rome, perceiving the impossibility of dealing with this offence according to its guilt in foro cœli, laid down "Perjurii pœna divina, exitium; humana, dedecus (a):" and the Digest, "Qui falso vel varie testimonia dixerunt, vel utrique parti prodiderunt, à judicibus competenter puniuntur (b)." The legislators of the middle ages, at least in this country, took, as might be expected, the higher and more violent view of the matter; the punishment of perjury being anciently death, afterwards banishment, or cutting out the tongue, then the forfeiture of goods (c). But experience probably shewed the folly and danger of such penalties for this offence, as its punishment was in time reduced to what is now the punishment for perjury at common law, viz., fine and imprisonment (d); to which, until the 6 & 7 Vict. c. 85, was added the disability to bear testimony in any legal proceeding; and lest this should be thought too light, Sir Edward Coke observes, "Testis falsus non erit impunitus. Nocte dieque suum gestat sub pectore testem; his conscience always gnawing and vexing him (e).” The spirit of modern legislation is in accordance. The 5 Eliz. c. 9, inflicts fine, imprisonment, and the pillory, (the latter of which has been since abolished by 7 Will. IV. & 1 Vict. c. 23); and the 2 Geo. II. c. 25, s. 2, allows seven years transportation, which is now the severest penalty that can be inflicted for perjury. The power of summarily committing false witnesses to take their trial for perjury is vested in tribunals by some Amount of evidence re- cases. modern statutes, especially the 14 & 15 Vict. c. 100, s. 19. This is all the change that has been made in the punishment of perjury during several centuries, when death was so frequently imposed, both by common and statute law, for many other offences falling infinitely short of it in religious and moral enormity. : § 570. It is not easy to define the precise amount of evidence required from each of the witnesses, or proofs in such cases. Mr. Starkie, in his Treatise on Evidence (f), informs us that he heard it was once held by Lord Tenterden, that the contradiction of the evidence given by the accused must be given by two direct witnesses; and that the negative, supported by one direct witness and by circumstantial evidence, would not be sufficient and allusion to a ruling of that sort was made by Coleridge, J., in a case before him (g). But this decision, if such ever took place, is most certainly not law. It is a startling thing to proclaim openly that if a man can eloign all direct, he may defy all circumstantial evidence, and commit perjury with impunity; and we accordingly find a contrary doctrine laid down in a variety of cases (h). Again, some modern authorities express themselves as though it would be sufficient if one witness were to negative directly the matter sworn to by the defendant, and some material circumstances were proved by another in confirmation or corroboration of his testimony (i). This language is, however, calculated to convey an erroneous impression, which it probably was not intended to convey; viz. that it would be suf (f) 3 Stark. Ev. 860, n. (q), Cresswell, J., in R. v. Young, 3rd Ed. Kent Sum. Ass. 17 Vict. MS. (g) Champney's case, 2 Lew. C. C. 258. (h) See 2 Gr. Russ. 649 et sey., and the cases cited infra. The same was also laid down by (i) 1 Greenl. Ev. § 257, 4th Ed.; Tayl. Ev. § 697; R. v. Gardiner, 8 C. & P. 739; R. v. Yates, C. & Marsh. 159. ficient to corroborate the testimony of the direct witness in the same manner as judges are in the habit of requiring, (for the law does not require it), the testimony of an accomplice to be corroborated; or as the testimony of a woman must be corroborated who seeks to fix a man with the maintenance of a bastard child. Now the case of perjury is not analogous to either of these. When the legislature require the testimony of a suspected witness to be corroborated, they say so; as in the repealed statute, 4 & 5 Will. IV. c. 76, s. 72, where it is enacted, that no order in bastardy shall be made, unless the evidence of the mother of the child "shall be corroborated in some material particular by other testimony, to the satisfaction of the court:" and similar words are used in the 7 & 8 Vict. c. 101, s. 3, and 8 & 9 Vict. c. 10, s. 6. When on the other hand they require the positive testimony of two witnesses to fix a party with some crime, they are equally explicit. Thus the 1 Edw. VI. c. 12, s. 22, says, that the prisoner shall "be accused by two sufficient and lawful witnesses;" the 5 & 6 Edw. VI. c. 11, s. 12, says, he "shall be accused by two lawful accusers;" the 7 & 8 Will. III. c. 3, s. 2, says, he shall be condemned "upon the oaths and testimony of two lawful witnesses ;" and the 11 & 12 Vict. c. 12, s. 4, that he shall not be condemned unless the words spoken "shall be proved by two credible witnesses." This difference in the wording of the two classes of statutes above referred to can scarcely have been accidental: and to shew that corroborating the testimony of one witness and convicting on the evidence of two are not always synonymous expressions, take the following case. Suppose an assignment of perjury, that on the trial of A. for stealing the goods of B., the defendant falsely swore that, at such a time, at C., he saw A. take and carry away those goods and in order to prove the falsity of this, that D. and E. were called as witnesses; D. to shew that at the time mentioned in the evidence of the defendant he was at F.; and E., that A. was at that time at G.; this evidence, if believed (k), would be amply sufficient to support the charge of perjury; and yet it is obvious that one of these alibis might be false and the other true, -so that the evidence of E. does not necessarily corroborate that of D., or vice versa. § 571. On the whole, therefore, we apprehend, that the old rule and reason of the matter are not satisfied unless the evidence of each witness has an existence and probative force of its own, independent of that of the other; so that supposing the charge to be one in which the law allows condemnation on the oath of a single witness, the evidence of either would form a case proper to be left to a jury, or at least raise a strong suspicion of the guilt of the defendant. And by analogy to this, where the evidence is, as it undoubtedly may be by law (1),—wholly circumstantial, enough must be proved by each witness to form a case fit to be left to the jury if the artificial rule requiring two witnesses did not intervene; or perhaps it would be sufficient if the evidence of one were such as to raise a violent presumption of guilt and that of the other a reasonable suspicion of it.— Præsumptio violenta valet in lege (m). § 572. To test this view of the law by the decisions. and language of judges. In R. v. Parker (n), Tindal, C. J., says, "With regard to the crime of perjury, the law says, that where a person is charged with that offence, it is not enough to disprove what he has sworn, by the oath of one other witness, and unless there are two oaths, or there be some documentary evidence, or (k) See per Patteson, J., in R. v. Roberts, 2 Carr. & K. 614. (1) 1 Greenl. Ev. § 258, 4th Ed.; Tayl. Ev. § 699. (m) Jenk. Cent. 2, cas. 3; see Co. Litt. 6 b; and supra, chap. 1, sect. 1, sub-sect. 2,306, 307. (n) C. & Marsh. 646; 2 Gr. Russ. 654. some admission, or some circumstances, to supply the place of a second witness, it is not enough." In Champney's case (o), Coleridge, J., laid down that "one witness in perjury is not sufficient, unless supported by circumstantial evidence of the strongest kind; indeed Lord Tenterden, C. J., was of opinion, that two witnesses were necessary to a conviction;" and the reporter adds, that the doctrine of Champney's case was ruled by the same judge in a case of R. v. Wigley. In R. v. Yates (p), Coleridge, J., also said, "the rule that the testimony of a single witness is not sufficient to sustain an indictment for perjury is not a mere technical rule, but a rule founded on substantial justice; and evidence confirmatory of that one witness in some slight particulars only, is not sufficient to warrant a conviction." In R. v. Gardiner (q), the defendant was indicted for perjury in falsely deposing before a magistrate that the prosecutor had had a venereal affair with a donkey, and that the defendant saw that the prosecutor had the flap of his trousers unbuttoned and hanging down, and that he saw the inside of the flap. To disprove this the prosecutor and his brother were examined. The former negatived the whole statement of the defendant; and both witnesses stated that they went to the field mentioned in the deposition, and that the prosecutor parted from the brother to see whether the donkey, which was full in foal, was able to go a certain distance, that he was absent about three minutes; and that the trousers he had on, which were produced, had no flap. On this, Patteson, J., said, “I think that the corroborative evidence is quite sufficient to go to the jury." Here was an important piece of real evidence identified by two witnesses. In the case of R. v. Roberts (r), also, the same judge said, "If the false swearing be that two persons were together at a certain time, and the assignment of perjury that they (0) 2 Lew. C. C. 258. (p) C. & Marsh. 139. (q) 8 C. & P. 737. |