Vol 115

C

RIMINAL justice to-day is en-
meshed in a web of perjury.
The pea in the old shell-game
was often easier to find than is the
truth in our courts of law. False
swearing has become a daily, and
therefore almost unremarked, epi-
sode.

The evil threatens more than the
administration of justice. It is still
true, as Lycurgus said to the Athe-
nians, that "An oath is the bond that
keeps the State together." And the
law books of to-day still quote from a
leading case: "No country can subsist
a twelvemonth where an oath is
thought not binding; for the want
of it must necessarily dissolve so-
ciety."

This truth is so traditional with
the race, that in all ages and among
all peoples, oath-taking has always
been associated with serious affairs
of State, either as a promise of certain
behavior or as an assurance of sin-
cerity of statement; and perjury
has always been deemed to be a
grave offense against both man and

No 1

God. The Siamese Buddhist in his
oath, not content if he breaks it to
call down on himself various kinds
of death, desires also that he may
afterward be cast into hell to go
through innumerable tortures. Bear-
ing false witness under sanction of
the name of God, is the only offense
separately condemned in two of the
Ten Commandments. The inspired
writers denounce lying as a sin more
often than any other offense; and
David in his haste, arraigned hu-
manity on the charge that "All men
are liars." Modern Christian civili-
zation regards perjury both as a
crime and as a sacrilege.

The origin of the oath as employed
to-day is lost in antiquity. It is an
expression of the religious instinct.
Since men cannot perfectly search
the heart, God is called upon to pass
judgment on the honesty of the
assertions, and to visit dishonesty
with punishment. Among primitive
peoples, the punishment was be-
lieved to follow in the form of disaster
in the present life; but gradually,

I

with more enlightenment, the divine retribution came to be regarded as purely spiritual, and in order that there might be present and visible pains and penalties for the protection of society, perjury came to be classed as a crime. Its menace to the individual and the State has won it a high place among the law's severest punishments. The ancient Romans prevented a repetition of the offense by casting the perjurer from the Tarpeian Rock; and the law of Moses ordained that, "If the witness be a false witness, and hath testified falsely against his brother; then shall ye do unto him, as he had thought to have done unto his brother: . . . life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot." The old common law visited perjury with death; and in certain Southern States in the days of slavery, the ears of a negro convicted of false testimony, would be nailed to a post and then cut off as a prelude to a public flogging.

Only last year, Mr. Justice William Harman Black of the Supreme Court of the State of New York, and formerly an assistant district attorney, suggested that the revival of the death penalty be considered and urged that every convicted perjurer forfeit his property to the State and be deprived of the right of inheritance. To-day, however, because of the humane temper of the age, such severe measures would defeat themselves. Juries would not convict, and prosecution would soon be be surrounded in the interest of the accused, with technicalities even more difficult than those which from hardier days still survive in the law. It is not, therefore, by adding

cruelty to punishment that society should or could itself against the contagion of now sweeping through ou prudence. As to the reality peril there is no doubt.

On March I, of thi Magistrate Joseph E. Cor New York City, at a hearin the Judiciary Committees Legislature, said that perju committed in ninety per ce criminal cases tried in th courts, on one side or the ot the same occasion, Mr. Kernochan of the Court of Sessions in New York Cit "Perjury is one of the most crimes committed in this tion." Justice William P. of the Municipal Court of of New York, recently ad testimony: "My brief exper two kinds of courts, civil a inal, causes me to believe t and women will perjure th much more freely for a fev than they will where a man and possibly his life are at Every lawyer knows that in negligence and insurance ca jury is rampant. Plainly, has come when Justice m her eyes, not that she may partial, but in order that she behold this public shame.

And yet, although perju commonest of crimes, it is least frequently punished. A to the United States Censu for 1923, the total prison po of the country, State and was 109,075, of which 16,5 burglars and only 171 w jurers. The increasing ineffe and infrequency of prosecu

perjury are attested by comparing these figures with the census of 1890, which revealed that out of a total prison population of 82,329, 6410 were burglars and 343 were perjurers. Every lawyer knows all too well that if prosecutions for perjury were as effective and efficient as prosecutions for burglary, the convicted perjurers would far outnumber the convicted burglars.

In the State courts in the County of New York there were but nine convictions after trial for perjury in the fifteen years since 1912, and the same difficulties have been encountered in the Federal courts in the New York district. The sentimental solicitude of the law for an accused person makes conviction especially difficult. The prosecution is obliged to establish a mental fact, -intent to falsify or disregard the truth,-beyond a reasonable doubt and in the teeth of a presumption of innocence. The false testimony must be as to a material matter. Counsels for defense plead the frailties of human recollection, understanding and powers of expression. Misapprehension is a ready excuse. Juries dislike to convict where the lying was to save a friend or for some other sentimental reason. The penalties are so severe that severe that charity often prevails over principle.

As a result courts and prosecutors have been loath to proceed against one suspected of perjury; and the crime has come to be surrounded with a practical immunity, if not, according to some social codes, with something almost of glamour. This impunity has given the crime a prodigious vogue. It fattens on legal tolerance, and the consequent lack

of even social odium. Since it causes no loss of caste, we find it present in. cases involving those of high social rank. Reputable men will swear falsely to escape jury service, and then denounce the frequency of bad verdicts. They will stick their tongues in their cheeks when verifying a tax return and then decry perjury in the courts. This popular attitude and these not uncommon practices vastly increase the difficulties of prosecution. As long as we have a jury system, the arm of the law will be crippled by public indifferentism to any particular offense.

So true are these considerations, that some students of the crime of perjury, instead of advocating with Justice Black more severe penalties, go to the other extreme and suggest that all penalties be abolished. With such persons a crime is a mere matter of statute, and hence can be abolished by the delightfully simple expedient of abolishing the statute. They argue, with Lord Chesterfield, that "A liar is a fool;" and that on the witness stand he defeats himself. In their view, it is better to follow without exception the Lord's injunction to "Swear not at all,” than to swear even in the cause of justice and thereby create the occasion through which offenses come. effect, they hold with St. Paul that "The strength of sin is the law."

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But the law insists on an oath, not for the purpose of tainting falsehood with moral turpitude but to protect the processes of justice. In this age the law regards itself as strong, and faith as weak. The oath is administered because the law desires a solemnity wherewith to give proportion to a grievous penalty, and be