United States v. Bailey
34 U.S. 238

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U.S. Supreme Court

United States v. Bailey, 34 U.S. 9 Pet. 238 238 (1835)

United States v. Bailey

34 U.S. (9 Pet.) 238

Syllabus

Kentucky. Indictment for false swearing under the third section of the Act of Congress of March 1, 1823, which declares that

"Any person who shall swear or affirm falsely touching the expenditure of public money or in support of any claim against the United States shall suffer as for willful and corrupt perjury."

The indictment charged the false swearing to be an affidavit made before a justice of the peace of Kentucky in support of a claim against the United States under the act of Congress of July, 1832, to provide for liquidating and paying certain claims of the State of Virginia.

There is no statute of the United States which expressly authorizes any justice of the peace of a state, or any officer of the national government, judicial or otherwise, to administer an oath in support of any claim against the United States under the act of 1823.

The Secretary of the Treasury, in order to carry into effect the authority given to him to liquidate and pay the claims referred to in the act of 1832, had established a regulation authorizing affidavits made before any justice of the peace of a state to be received and considered in proof of claims under the act. By implication, he possessed the power to make such a regulation and to allow such affidavits in proof of claims under the act of 1832. It was incident to his duty and authority in settling claims under that act. When the oath is taken before a state or national magistrate, authorized to administer oaths, in pursuance of any regulations prescribed by the Treasury Department, or in conformity with the practice and usage of the Treasury Department, so that the affidavit would be admissible evidence at the department in support of any claim against the United States, and the party swears falsely, the case is within the provision of the act of 1823, ch. 165.

If a state magistrate shall administer an oath under an act of Congress expressly giving him the power to do so, it would be a lawful oath, by one having competent authority, and as much so as if he had been specially appointed a commissioner under a law of the United States for that purpose, and such an oath, administered under such circumstances, would be within the purview of the act of 1823.

The act of 1823 does not create or punish the crime of perjury, technically considered. But it creates a new and substantial offense of false swearing and punishes it in the same manner as perjury. The oath therefore need not be administered in a judicial proceeding or in a case of which the state magistrate under the state laws had jurisdiction so as to make the false swearing perjury. It would be sufficient that it might be lawfully administered by the magistrate, and was not in violation of his official duty.

The language of the act of 1823 should be construed with reference to the usages of the Treasury Department. The false swearing and false affirmation referred to in the act ought to be construed to include all cases of swearing and affirmation required by the practice of the department in regard to the expenditure of public money or in support of any claims against the United States. The language of the act is sufficiently

broad to

Page 34 U. S. 239

include all such cases; and there is no reason for excepting them from the words, as they are within the policy of the act, and the mischief to be remedied.

The act does no more than change a common law offense into a statute offense.

At the November term, 1834, of the Circuit Court of the United States for the Kentucky District, an indictment was found against John Bailey for perjury and false swearing under the third section of the Act of Congress of March 1, 1823, 3 Story's Laws U.S. 1917, the thirteenth section of the act of March 3, 1825, 3 Story's Laws U.S. 2002.

The third section of the Act of March 1, 1823, "entitled an act in addition to the act entitled an act for the prompt settlement of public accounts, and for the punishment of the crime of perjury," is in these words:

"That if any person shall swear or affirm falsely touching the expenditure of public money or in support of any claim against the United States, he or she shall, upon conviction thereof, suffer as for willful and corrupt perjury."

The thirteenth section of the Act of March 3, 1825, entitled "an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," declares

"That if any person in any case, matter, hearing, or other proceeding, where an oath or affirmation shall be required to be taken or administered, under or by any law of the United States, shall, upon the taking of such oath or affirmation, knowingly and willingly, swear or affirm falsely, every person so offending shall be deemed guilty of perjury, and shall, on conviction thereof, be punished,"

&c.

The indictment charged the defendant, John Bailey, with perjury and false swearing upon the following affidavit, made by him before a justice of the peace of the Commonwealth of Kentucky.

"The Commonwealth of Kentucky, county of Bath, to-wit: "

"The affidavit of John Bailey, one of the executors of Captain John Bailey, deceased, states that he is not interested in said estate; that Warren Bailey, Jr., and James C. Bailey, who have joined with him in a power of attorney, to the honorable Richard M. Johnson to draw and moneys that may be

Page 34 U. S. 240

due them from the government of the United States, are the residuary legatees, and solely interested; that he is ___ years of age, and the son of said John Bailey, deceased, who from his earliest recollection, was reputed a captain in the revolutionary army, and in the Illinois Regiment; that he has seen his father's commission, and thinks there were two; of that fact he will not be certain, but it is his strongest impression, and is perfectly confident that the commissions, if two, both were signed by Thomas Jefferson; that his father's papers fell into his hands, as executor, and he has made many fruitless searches for them, and can in nowise account for their loss unless they were given to General Thomas Fletcher, deceased, while a member of Congress, to see if he could get anything, as affiant knows that his father applied to said Fletcher to do something for him, and understood afterwards the law had made no provision for cases situated like said John Bailey's. As witness my hand and seal, this ___ of November 1832."

"JOHN BAILEY [SEAL]"

The record of the circuit court contained the following statement of the facts and proceedings of the case, and of the division of opinion by the judges of the court.

"The attorney for the United States read in evidence the papers set out in the indictment purporting to be the affidavit of the prisoner, with the certificates of the said Josiah Reed and William Suddeth, and gave evidence to the jury conducing to prove that the prisoner did, at the time and place charged in the indictment, take the oath as charged and subscribe the paper set out in the indictment as his affidavit before the said Reed, and that the said Reed was then and there a justice of the peace of the Commonwealth of Kentucky in and for the said County of Bath, duly commissioned, qualified, and acting as such, and also gave evidence conducing to prove that, immediately after the passage of the said Act of Congress of 5 July, 1832, entitled 'an act for liquidating and paying certain claims of the State of Virginia,' the Secretary of the Treasury did establish, as a regulation for the government of the department and its officers in their action upon the claims in the said act mentioned, that affidavits made and subscribed before any justice of the peace, of any of the states of the United

Page 34 U. S. 241

States, would be received and considered to prove the persons making claims under said act, or the deceased whom they represented, were the persons entitled under the provisions thereof, and that the said regulations had been ever since acted under at the department, and numerous claims heard, allowed, and paid on such affidavits, and also gave evidence conducing to prove that the prisoner, acting as the executor of his father, John Bailey, had, before the time of making and subscribing said affidavit, asserted the claim therein mentioned and employed Thomas Triplett to prosecute the same and receive the money thereon; that the said Triplett did afterwards present the said affidavit and certificates in support of said claim at the said department, on which, together with other affidavits, the same was allowed and the money paid, and a part thereof paid to the prisoner."

"The above being all the evidence conducing to prove the authority or jurisdiction of the said Josiah Reed, to administer said oath and take said affidavit, the counsel for the prisoner moved the court to instruct the jury that the said Josiah Reed had no authority or jurisdiction to administer said oath or take said affidavit, and that whatever other facts they might find on the evidence, the prisoner could not have committed the crime of perjury denounced by the thirteenth section of the act of Congress, more effectually to provide for the punishment of certain claims against the United States and for other purposes, 'approved on 3 March, 1825,' nor of false swearing denounced by the third section of the act 'in addition to the act' entitled 'an act for the prompt settlement of public accounts and for the punishment of the crime of perjury,' approved on 1 March, 1823, and their verdict ought to be for the prisoner, which motion the attorney for the United States opposed."

"On this question, the judges were divided and opposed in opinion, whereupon, on the motion of the attorney of the United States, the said question and disagreement are stated, and ordered to be certified to the Supreme Court. "

Page 34 U. S. 251

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