The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-10-19

declined the Consul's request to make such afi-
davit. | know no authority Of law by which he
could have been compelled to do So even II the
Consul, Oh the strength of the permission from
the Department, had requested the magistrate to
require the testimony. This was not done because
it was not necessary. 1t is probably the correct
view, that false oath would be perjury under
the statute if the affiant could have been com
rpelled. or as the statute is worded. required to
testify, but this could not have been the case If
for no other reason than because no man can BE-
held 10 test .fy against himself. The Consul, if
he had desired to do So might have brought bis
action and compelled the prisoner either to
answer or take default. Perhaps on complaint
prosecution for libel would have been nsti-
;uted, or the offense might have been INSIDE
meanor
| will cite the words of Professor Green
leaf in the first volume of his work on
Evidence Section 1924 Redfelds edition =
"Some of the States have made provision
by law for the taking of dispositions to be used
in suits pending 10 other States by bringing the
deponent within the operation of their own
statutes agaidst perjury and national comfy
plainly requires the enactment Of similar pro-
visions in all civilized countries. But, as yet.
they are far from being universal; and whether,
in the absence Of such provision, false swearing
in such cases is punishable as perjury, has been
gravely doubted
1t remains to refer to a case decided 10 this
Court at the October Term Of 1853 A win had
been admitted to probate by Judge Andrews,
and was afterwards believed to have been forged.
While the will remained unrevoked petition
for the appointment of an administrator was
heard. One of the witnesses at this hearing was
indicted for perjury. aud the Court, Robertson. j.,
ordered the jury to acquit on the ground that
there vas no jurisdiction to hear the petition
while the viii was uncaneelled. The King vs..
Papa, ct all Haw. 1875 That decision does
not seem to have been based on the ground that
perjury could only be committed in strictly legal
proceedings, but because there was no jurisdiction,
and the proceedings were all void. ! should not
like TO commit myself SO far as TO indorse
and | am not called upon to deny the law of that
case but cite it because it may have Il bearing
on he view take in this case.
The decisions of Courts of the United States.
cited by prisoners counsel rest on peculiar
statutes of the States, and on the adjustment
Of the respective constitutional powers of
the States aud of the general Government
am, therefore, not prepared to say how far they
are in point. This case must rest on the statutes
and law Of this Kingdom. But see L. S. vs.
Bailey. 9, Pet. 240 4 Black. Com. 1871 and u.
30. 10. Hawk. III. Or. 50 and Sc Spcer vs.
Read. Hob 60. Reg. vs.. Chapman, COx's Cr |
Cas-. 46S. Rex VS.. Foster Rus and Ry. 45g |
Rex rs. Beck. Str 400. Reg. vs. Child. COxs |
Or. Gas. 205 ; Lavey vs.. Reg. , Id. 269 Reg. VS. 7
Lawor. 6 10. Isl Reg VI Stowe. 10. 24O Reg |
vs.. Hughes, In. 2S6 Reg. We Barry, IT,. l2l; /
Reg. rs. Simmonds. h. 1870; keg. vs.. Wbybrow. |
ID. ABS Reg vs.. Smith, 10. 1853 Reg vs.. Lee /
nier,- h. 400. State VS.. Hanson. 80 Me 337. [
Com. vs. Knight. y Mass. 27j; People vs. War
ner, 10. 30, lame vs.. Treadway. Bar 40. .
Com. Warden. II Met. 400 State vs. Fur
long. 20 Ne. SO. T. ). VS.. Babcock, Mel ia.
The statute requires the oath to be one which
IS required oy law, or the requiring of which is
by law" | think the word require
here means not merely to request as a favor, but
1 request by one having the power of law to en-
'orce the same.
However great the moral wrong Of taking
alse oath, legal offence becomes such only by
oFce Of statutes. Legal wrongs must always lie
Kept distinct from otierces against the Divine
Power, or against the moral sense. Courts Of
ustIce do not administer the laws which are re-
ognized by them as binding on their private
onsciences. but only such are known aud de-
Jared to be the llw of the land.
As the act charged in the Indictment, and all
he facts Of which evidence was given at the
rial do not make ont the legal offence Of perjury,
he motion is granted. The prisoner must be
isch-rged. and Judgment entered accordingly
Co.