excluded, he thereby indirectly but unequivocally affirms the falsity of the first. Do we discredit the first any sooner, or believe the second the more readily, because the witness tells us that one was intentionally false and the other true? We believe neither of them. We place no confidence in either statement, from an absolute inability to determine which is true, or whether either is true. If the witness is afterwards put on his trial for perjury, our difficulties are in no wise removed. We are still in doubt which is the true and which is the false. It is very true, that a witness making two palpably conflicting statements, may sometimes, by his demeanor, satisfy the hearer that one is to be credited rather than the other. But when these statements are repeated

to a third person, it is very difficult, if not impossible, to detect the false without some aid from surrounding circumstances. And no mere asservation of the witness will assist the mind in arriving at a just and accurate conclusion. If the witness is to be convicted of perjury upon his bare declaration that the first statement is false, it is not because we believe his declaration is necessarily true, but upon some idea that it is in the nature of a confession, and therefore to be believed. A deliberate confession of guilt is generally credited, because it is presumed to flow from the highest sense of guilt. It must be remembered, however, that there are two statements upon oath, and if the prisoner is to be concluded from denying one to be true, the same reason would conclude him from denying the other, and the prosecutor might select either as the ground of his proceeding. In this very case the Commonwealth might have elected to proceed upon the second statement made by the prisoner. In that event, all will concede he must have produced other testimony in addition to the contradictory statement first made. Is it possible that the principle is so reversed, and is of so little value, that the prisoner may be convicted of perjury upon the first merely because, upon his second examination, he admitted the first did not contain the truth.

If this be so, the rule laid down, that in case of two conflicting statements there can be no conviction unless there is corroborative evidence, is not of the slightest value. When we speak of corroborative evidence, we do not mean such as emanates from the mouth of the prisoner himself, but evidence aliunde, evidence which tends to show the perjury independently of his own declarations.

The whole law in reference to perjury is based upon the idea that where there is witness against witness, oath against oath, there must he other evidence to satisfy the mind.

The rule is thus laid down in 1 Greenleaf: "If the evidence in proof

1 sect. 265.

1

of the crime of perjury consists of two opposing statements of the prisoner and nothing more, he can not be convicted. If both the contradictory statements were delivered under oath, there is nothing to show which of them is false, where no evidence of the falsity is given.' This is a sound rule, and ought not to be departed from to meet particular cases. In this connection it may be mentioned that the decision in the New York case was made by two judges, in a court of three-Judge Selden dissenting.

The case now in hand is a strong illustration of the value of the rule in question. The prisoner was a youth of fifteen, charged before the same magistrate with being implicated in the crime of rape, and acquitted but a few minutes before. Upon his examination he was without counsel or advice, and was not cautioned that he was not bound to criminate himself. His examination had not been completed, but merely suspended; and during this interval he is said to have made to officers of the government the statement upon which his conviction is founded. Before he had concluded he was stopped by the mayor, in the midst of his narrative, and forbade to say more. What he would have further said we can not even conjecture. So great is the abhorrence of the crime of rape, that the passions and suspicions of men are more easily excited than by any other accusation. When, therefore, the prisoner confessed his complicity in the crime, ready credence was given to the statement. If, in his first statement he had made the same confession, and in his subsequent examination denied it, it is easy to see that the perjury would have been charged in the last, and not in the first. And yet, without the aid of other evidence, the one statement was entitled to no greater consideration than the other. Upon the whole, I think the prisoner was improperly convicted upon the facts as presented to the jury.

With respect to the instructions, my opinion is, that no error was committed by the court, either in refusing those asked for or in giving those that were given. Upon the points presented by the second bill of exceptions, it is unnecessary to express any opinion, as the question will probably not again arise.

Judgment reversed.

1 See, also, Dodge v. State, 24 N. J. (L.)455.

excluded, he thereby indirectly but unequivocally affirms the falsity of the first. Do we discredit the first any sooner, or believe the second the more readily, because the witness tells us that one was intentionally false and the other true? We believe neither of them. We place no confidence in either statement, from an absolute inability to determine which is true, or whether either is true. If the witness is afterwards put on his trial for perjury, our difficulties are in no wise removed. We are still in doubt which is the true and which is the false. It is very true, that a witness making two palpably conflicting statements, may sometimes, by his demeanor, satisfy the hearer that one is to be credited rather than the other. But when these statements are repeated to a third person, it is very difficult, if not impossible, to detect the false without some aid from surrounding circumstances. And no mere asservation of the witness will assist the mind in arriving at a just and accurate conclusion. If the witness is to be convicted of perjury upon his bare declaration that the first statement is false, it is not because we believe his declaration is necessarily true, but upon some idea that it is in the nature of a confession, and therefore to be believed. A deliberate confession of guilt is generally credited, because it is presumed to flow from the highest sense of guilt. It must be remembered, however, that there are two statements upon oath, and if the prisoner is to be concluded from denying one to be true, the same reason would conclude him from denying the other, and the prosecutor might select either as the ground of his proceeding. In this very case the Commonwealth might have elected to proceed upon the second statement made by the prisoner. In that event, all will concede he must have produced other testimony in addition to the contradictory statement first made. Is it possible that the principle is so reversed, and is of so little value, that the prisoner may be convicted of perjury upon the first merely because, upon his second examination, he admitted the first did not contain the truth.

If this be so, the rule laid down, that in case of two conflicting statements there can be no conviction unless there is corroborative evidence, is not of the slightest value. When we speak of corroborative evidence, we do not mean such as emanates from the mouth of the prisoner himself, but evidence aliunde, evidence which tends to show the perjury independently of his own declarations.

The whole law in reference to perjury is based upon the idea that where there is witness against witness, oath against oath, there must be other evidence to satisfy the mind.

The rule is thus laid down in 1 Greenleaf: 1 "If the evidence in proof

1 sect. 265.

In no sense

stood by him, to cover Daniel's property under his name. of the word could he suppose that he owned, or had a property in the vessel. Such a doctrine would defeat the important provisions of our navigation law if a citizen might cover the property of aliens, and yet safely swear that he was the owner.

Every offense for which a man is indicted, must be laid against some law, and it must be shown to come within it. Such law may be the general unwritten or common law, or the statute law. The offense must not only come within the terms of such law, but the law itself must, at the time, be subsisting. It is a clear rule, that if a statute create an offense, and is then repealed, no prosecution can be instituted for any offense committed against the statute, previous to its repeal. The end of punishment is not only to correct the offender, but to deter others from committing like offenses. But, if the Legislature has ceased to consider the act in the light of an offense, those purposes are no longer to be answered, and punishment is then unnecessary. Perjury is said to be malum in se. False oaths of all kinds are prohibited by the divine law; but civil institutions punish them only in certain cases, and upon reasons of policy. A false oath taken before the commissioners of bankruptcy, was declared to be perjury, and subjected the offender to punishment; but, the moment the law was repealed, it remained a false oath, but ceased to be an offense punishable by municipal law. There are many offenses that are mala in se, which are not prohibited by human laws; and, therefore, if in any case they should, by such laws, be deemed criminal and made punishable, the repeal of those laws places the acts committed under them, upon the same ground as they were before the laws passed.

As to civil rights, the rule is, that rights acquired under, or barred by an existing law, are not defeated by the repeal of the law.

In short, the cases which were cited at the bar, and the language which the Legislature of the United States has used in the cases cited, when it has intended to except out of the operation of the repealing law, prosecution for offenses committed before the repeal, are conclusive to show that the above doctrine is not to be shaken.

The next question is, to what extent was the bankrupt law repealed by the act of the 19th of December, 1803? Until we come to the proviso, it is a general and absolute repeal. Had it stopped here what would have been the consequence? That all commissions then proceeded in, to various points of their execution, must have been arrested, and infinite mischief have been produced. A proviso is always intended to limit the generality of the enacting clause, or to save or except certain cases out of its operation. If the proviso be ambiguous, its explanation may be best obtained by understanding the scope of the

In the United States Circuit Court, Pennsylvania, 1804.

1. When a Bill of Sale is Made Fraudulently and colorably to the bankrupt, if he swears that the property mentioned in it belongs to him, it is perjury. But, if he swears to such ownership from mistake, resulting from a misconstruction of a paper, it would not be perjury.

2. If an Offense be Created by law, and before prosecution, the law be repealed, the offense can not be punished, unless there is a reservation of jurisdiction over the offense in the repealing law.

3. Under the Act of 19th December, 1803, repealing the bankrupt law, there is no reservation for such purposes; and it would only be for perjury committed after the repeal of the law, in cases, which, by authority of the repealing act, may be completed, that an indictment could be sustained.

4. Perjury Committed in Proceedings Under the bankrupt law, can not be prosecuted under the general criminal law of the United States, the 18th section of which applies to perjuries committed in judicial proceedings, whether orally or by deposition.

5. For a Perjury Under the Bankrupt laws, an indictment will not be supported at common law; because, there must not only be a false oath, but it must be taken in some judicial proceedings, in a matter material to the issue.

Indictment for perjury committed before the commissioners of bankruptcy by swearing that the defendant had owned the brig Abigail in 1799, whereas in fact defendant never did owned the brig at all. The charge was made both under the bankrupt law and the general criminal law.

WASHINGTON, J. As it is the opinion of the court, that the law is in favor of the defendant, I shall spare the jury and myself the trouble of going through the evidence. If, in the opinion of the jury, it is insufficient to establish the fact against the defendant, I would not wish to disturb that opinion; if it has a different operation I shall not press it against him. But I must notice one of the observations made by Mr. Dickerson, lest those who heard it might suppose it had received the countenance of this court, and it is this, that the defendant, having a bill of sale for the brig, might, under the circumstances of the case, have taken an oath that he was owner of her, without committing perjury. It is true, that where a mistake is shown to be the result of a misconstruction of a paper, it is not perjury; but no such misconstruction could take place in a case like this. The oath must be considered in reference to the subject and occasion of it. It was taken for the purpose of disclosing the property and effects belonging to the bankrupt. The defendant, if Daniel's evidence is believed, was a mere nominal owner, made so with his own consent, and with a view, under