Robert Robb v. Gabriel Halladay — Information, 25 Dec 1766

I N F O R M A T I O N December 25 1766 FOR R O B E R T R O B B First Magistrate of the Burgh of Wester Anstruther, with Concourse of his 2 5 1 7 6 R O B6 Advocate, for, his 2 5 1 7 6 R O B6 ETR7F76R, Prosecutor, F O F R � � � G A B R I E L H A L L A D A Y School-mast e r in Wester Anstruther P a n n e l T H E libel against this pannel charges him with the crime ofperjury. The major proposition is said as well on the com­ mon law, as on a statute of Queen Mary, wherein the punishment inflicted by the common law is defined; and the minor proposition, alter charging the commission of perjury, in the emission of a particu­ lar oath in general, points out sundry particulars of that oath, where­ by, in a more especial manner, it appears perjury has been committed; the conclusion is in the usual form, viz. T hat on trial and conviction, punishment ought to be inflicted on this pannel. At the diet of compearance in the criminal letters, the pannel appeared at the bar, he pleaded not guilty to the libel, and referred his farther defence to his counsel A variety of objections have been used to the form and relevancy of the libel, on which pretty long pleadings ensued in court; the result of which has been, that your Lordships have ordered informations, and this is humbly offered on the part of the prosecutors. The full objection to this libel pleaded for the pannel, was to the major propos ition, which, it was contended, was laid 0n a wrong- statute, statute, and one that no way related to the matter in issue. T hat the libel proceeded to charge the pannel with emitting a false deposi- tion in the course of a process; and that that crime was not punish- able by the statute libelled on, but by the 47 statute of the sixth parlia­ ment of Queen Mary, intitled “ Anent punishment of false witnesse,” which statute is conceived in the following terms: “ Item, It is statute and ordained, quhair ony witnesse deponis falselie, or ony manner of personne or perforates inducis them to bear false witnesse, That all sick personnes in times coming be punished be pearsing of their tongues, and escheating of all their gudes to our Soveraine Ladies use; and declared never to be able to bruck honour, office, or dignitee fra thenefarth, and furder punishment to be maid in their persones, at the fight and discretionne of the L ordes, according to the quality of the fault.” The answer given to this objection, and which the memorialist is ad- vised is a solid one, was, That this libel is founded upon the common law, rather than upon any particular statute; for the statute of Queen Mary, mentioned in the major proposition, does not enact any new punishment for the crime of perjury, but simply declares what the punishment by the common law was, and only extends the crime so as to comprehend bigamy under the denomination of perjury, and to render it punishable as such; and as the statute mentioned in the libel does not derogate from the common law, but in fact declares the punish­ ment which may be inflicted by it, so neither does the act of the sixth parliament of Queen Mary derogate from the other. It in reality inflicts the same punishment, with some additions; confiscation of moveables, and infamia juris are mentioned in both sta tu tes as a part of the punishment. T he statute of the fifth parliament of Queen Mary adds to this, imprisonment for year and day, and longer at the pleasure of the Queen, which, in the language of law, means the pleasure of the courts of justice. The statute of the six th parliament of Queen Mary permits the same thing, under the name of farther punishment, to be made in their persons at the sight and discretion of the Lords, ac­ cording to the quality of the fault. The difference then between the two statutes, is only this, that the statute of the six th parliament of of Queen Mary adds the punishment of peircing the tongue to the punishment inflicted by the common law. As therefore the common law is not abrogated, but remains in full force, the statute last mentioned notwithstanding; so this libel, which is laid on the common law, is properly laid; and must be relevant in so far as the punishment of the common law goes: And further than this, the prosecutor did not intend it should be carried. Against the minor proposition of this libel, various objections have been started. The first one was, That it is deficient in this, that the libel does not bear, that the pannel emitted falsehoods judicially on oath, knowing them to be false. That he might, thro’ error or mis- take, have affirmed a thing to be true which he really believed to be so, altho’ it was false: That an error of this kind could not be called perjury; as the libel therefore is defective in charging, that he knew the falsehood of what he affirmed; so it is not relevant to infer the crime of perjury. But, in answer to this, it may be observed in the first place, T hat in the minor proposition, the pannel is explicitely charged with the crime of perjury, in the following words: “ i 7 R R F r 7 E R E 6 5Ts tM a 7 F E R O g That the said Gabriel Halladay is guilty actor, art and part, of the crime of perjury.” As the technical term of perjury is made use of, and that includes both the animus and the act; so there was no occasion for going any farther. It would have been su- perfluous in the libel, had intention been charged over and above the guilt of perjury. It is sufficient to charge, if a man has committed a crime known in the law; for in such a charge the criminal intention is included, as there can be no crime without an intention. T he pannel therefore being charged with perjury, it is implied, that he wilfully averred falsehoods upon oath, knowing them to be such. But, in the second place, Though this technical term of perjury had not been made use o f; although no more had been charged, than that the pannel affirmed falsehoods judicially on oath; it would have been presumed that he did so intentionally, knowing them to be false; for, unless this was prefumed from the act, it would be impos- sible to convict any person of perjury. If the pannel alledges, he he was mistaken as to matter of fact, that is a defence which it is incumbent on him to prove. He must show to the court, how it was. he came to be mistaken; and, unless he does so he must be held guilty of the crime, upon its appearing that he actually affirmed what was false. There was no occasion, therefore, to see forth in the libel, That the pannel knew what he affirmed to be false. The charge is complete as it hands, and will remain so, unless elided by the defences of the pannel in point of fact, which he must prove before he can avail him- self of them. The s econd objection against the minor proposition of this libel is, That from the manner in which the libel is made, and the list of witnesses, it appears, that it is the intention of the prosecutor to prove the crime of perjury against the pannel, by the deposition of witnesses: That this is an inhabile mean of proof; in the crime of perjury, the deposition of one witness being as good as the deposi­ tion of another witness. But there is an absurdity in supposing the crime of perjury may be proved by witnesses; for, if once this is re­ ceived as a principle, there would be no end of trials: If witnesses were received against the pannel to convict of perjury, these might again be convicted by other witnesses; and so on in nfinitum: That it had been found by decisions of the court, that the crime of perjury can­ not be proved by witnesses; and for this, reference was made to a case, Balcanqual contra Rigg, mentioned by Sir George M'Kenzie, tit. Perjury, section 5. as decided on the day of 167. If this objection was to be received against indictments for perjury, the evident tendency of it must be, to bestow impunity on all who are guilty of that crime; for, unless a proof by witnesses is permitted, it is very rarely that perjury can be proved at all; and yet perjury is a crime the most pernicious in its consequences to society of any that can be figured; at the same time, that it involves much moral turpitude and impiety. Our laws cannot be supposed to. bestow impunity on a crime of so deep a dye; from the very conse- quence therefore that must follow, one might safely argue, that the law law cannot stand as the pannel would have i t; but that, on the con­ trary, it is necessary for the well-being of society, that the crime of perjury should be proved by witnesses. But further; it is a point that has long age been decided, That the mode of proof, in the crime of perjury, is not confined to writings; but that parole-evidence must be received. Thus Balfour, in his Practics, title, Of probation by witnese, chapter 29. tells us, “ G if witnessis sweir and depone in judgment aganis ony partie quha thair- efter raisis summoundis aganis thame, to heir thame decernit pur- jure and mensworn, he may preive the samin be witnessis, and fall not be compellit to the probatioune thaireof be writ;” 6th April 1565, the Laird of Roffy contra Lord Innermeith’s witnesses. And indeed, the records of this court prove the contrary doctrine to that which is maintained by the pannel; for the prosecutor will venture to affirm, that, in trials for perjury in this court, witnesses have been received to prove the crime; and within these few years, there have been more than one instance of trials of this kind. As to the decision founded on, as quoted by M ‘Kenzie, it is re­ markable, it stands blank as to the month, tho’ not to the year; and no such case is to be found in the whole year 1677. The pannel’s counsel argued, That, in the deposition he had emit­ ted, on account of which he is now charged with the crime of per- jury, he was supported by other witnesses in the various articles; and they contended, that, as the deposition of two witnesses makes a complete proof, so where two witnesses depone to the same fac t no challenge for perjury can lie. How far the pannel has been supported by other witnesses, in the ci­ vil process, or how far he can still instruct the verity of what he has de~ posed to, by witnesses he may bring in exculpation, is not hujus loci. For the process in which he emitted that oath, cannot be brought under the consideration of the court in this tria l; and what the pannel proposes to prove by witnesses in this trial, must be reserved to the consideration of the jury. Upon inquiry, perhaps, it might be found, that the paunel has no reason to say, his deposition is in the least supported by the testi- monv of other witnesses who have been examined in that process 111 which which he emitted his deposition. This, however may be said, that it is impossible it can afford a defence against perjury, that more than one witness has sworn to the same thing; for it never can lessen the guilt, that there are many accomplices in the crime; on the contra­ ry, the more act ors there have been, the more highly aggravated it becomes: And indeed, was the principle pleaded by the pannel true, nothing would be more easy than for every person guilty of perjury to screen himself from punishment, by procuring an accomplice in his guilt. '_ '. It was also objected to this libel, That the trial was brought du­ ring the dependence of the action before the Court of Session, in which the oath was emitted: it was contended, That if perjury was here committed, it had been committed in a process depending in a court that was itself competent for trial of the crime; that therefore an inci­ dental complaint to that court was the proper remedy: And the coun- sel for the pannel went so far as to argue, that it was a sort of disrespect to, and contempt of the authority of the Court of Session, to bring a trial in this court for perjury committed there. But, however competent it may be for the Court of Session to in­ flict censures, or slighter punishments, on crimes or misdemeanours appearing to them in the course of their procedure; certain it is, that the proper jurisdiction for trial and punishment of crimes is vested in the Court of Judiciary; and tho’, if from the proceedings concerning the elections of Wester Anstruther, it appeared to that court, that this pannel had sworn falsely, they would inflict a punish­ ment on him; yet, when it was proposed to establish his guilt by o- ther evidence than what was given in the course of those proceed­ ings, so that a separate action became necessary, the Court of Jud i­ ciary was the only proper court in which such an action could be brought, and a complaint to the Court of Session would have been altogether incompetent. As therefore this was the only proper court in which the present prosecution could be brought; so the bringing of it in this court can never be reputed disrespectful to the Court of Session. Neither has that that court looked on it in this view: For, upon an application made to them, they gave an order for transmitting the principal deposi- tion of the pannel, from the process in dependence before them, to this court, in order that it might be used as evidence against him in the present prosecution; an order which they would never have granted, had they either thought their jurisdiction was impinged on, or any thing disrespectful towards them committed by the present prosecution. It was objected against this libel likeways, That the persons who are mentioned therein are not particularly described; that this ought to have been done, before it can be shown that the pannel hath com­ mitted perjury in any thing he hath deposed with respect to those persons; that such particular description not having been given, the libel is defective, and must fall to the ground. But to this it is answered, That the deposition of the pannel is referred to in the libel: That, upon perusing that deposition, it will be found, that the several persons concerning whom the pannel de­ pones, are described in such a manner, that there can be no doubt a- bout them: That the prosecutor must bring home his proof to these very persons, before he can convict the pannel; and the application of that proof, is a matter that must be judged of by the jury after the proof is led: This objection therefore is not hujus loci. It was further objected, That this trial ought not to proceed, while the civil action concerning the elections of Wester Anstruther was in dependence, being, in some sort, connected therewith; it was insinuated, that the intention of this action was to make it a kind of prejudicial action to that process; and therefore that process ought to be sisted in this prosecution, till such time as a sentence shall be pronounced in the other. This objection, however, the prosecutor fully answered. He dis­ claimed all intention or inclination of connecting this process in the least with the decision of the civil process relative to the elections of Wester Anstru ther; and he consented, that the diet in this prosecu- tion should be continued to such a distant day as it might be expect­ ed ed that civil process should have received a determination. This must put an end to all complaints or objections of the pannel on that head; tho’ it truly does not occur, what interest he can have, whether this is intended as a prejudicial process to that relative to the elections of Wester Anstruther or not, unless he will acknowledge a closer connexion with the politics of that borough than one would expect he would do in the predicament in which he now stands. An objection was likewise started to the title of the prosecu- tor, because he is here insisting with the concourse of the King’s Advocate only, and not aided by his instance; and it was thrown out, that under these circumstances he had no title to prosecute. Much argument, however, shall not be used on this head; because the case does not seem to stand in need of it. Perjury is undoubtedly a pu­ blic crime; and was there a necessity to argue the general point, it might be shown, notwithstanding commonly received prejudices to the contrary, that every public crime may be prosecuted by individuals who are subjects of Scotland, not only without the instance, but e- ven without the concourse of the King’s Advocate; and this doctrine could be supported, not only by general principles, but by the deci- sions of this court. In the present cafe, however, the direct tendency o f the perjury that has been committed, has been to hurt the pro- secutor in his civil rights and patrimonial concerns; now it never has been doubted, that where a private person is affected in his rights by the consequences of a public crime, he has a right to prosecute such crime ad vindictam, with the concourse of the King’s Advocate; if the crime is of a private nature, it cannot be prosecute without him, even at the indance of the King's Advocate. Upon the whole, as the libel is laid, the prosecutor apprehends it is abundantly relevant, that no good reason hath been assigned, why it should not pass to the knowledge of an asiz e. In respect whereof, & c. A N D R E W C R O S B I E.