516
Opinion of the Court
and the judges reached differing results when the issue finally arose in the mid-19th century. Compare Queen v. Lavey, 3 Car. & K. 26, 30, 175 Eng. Rep. 448, 450 (Q. B. 1850) (materiality is a jury question), Queen v. Goddard, 2 F. & F. 361, 175 Eng. Rep. 1096 (1861) (same), with Queen v. Courtney, 5 Ir. C. L. 434, 439 (Ct. Crim. App. 1856) (dictum) (materiality is a question for the judge); Queen v. Gibbon, Le. & Ca. 109, 113-114, 169 Eng. Rep. 1324, 1326 (1861) (same). It was not until 1911, 120 years after the adoption of our Bill of Rights, that the rule the Government argues for was finally adopted in England—not by judicial decision but by Act of Parliament. See Perjury Act of 1911, § 1(6), 1 & 2 Geo. V, ch. 6.
Much more importantly, there was also no clear practice of having the judge determine the materiality question in this country at or near the time the Bill of Rights was adopted. The Government cites Power v. Price, 16 Wend. 450 (N. Y. 1836), as "[t]he earliest reported case on the question" whether "materiality in perjury prosecutions is a question for the court rather than the jury," claiming that there "New York's highest court held that a trial judge had correctly reserved the question of materiality to itself." Brief for United States 18. Power held nothing even close to this. Power was not a perjury case; indeed, it was not even a criminal prosecution. It was a civil action in which Price sued Power for the slander of imputing to him the crime of perjury. The Court of Appeals held that Price did not need to prove the materiality of the alleged false statement in order to make out a prima facie case; but that Power could raise immateriality as an affirmative defense negating intent to impute perjury. 16 Wend., at 455-456. It then said that the trial court "was clearly right in instructing the jury that the testimony given on the former trial was proved to be material," since "it merely decided a question of law, arising upon the proof of facts as to which there was no dispute or contrariety of testimony." Id., at 456. But the courts'
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