United States v. Nickerson
58 U.S. 204

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U.S. Supreme Court

United States v. Nickerson, 58 U.S. 17 How. 204 204 (1854)

United States v. Nickerson

58 U.S. (17 How.) 204

Syllabus

The Act of Congress passed on 29 July, 1813, 3 Stat. 49, enacts that the owner of every fishing vessel shall, previous to receiving the allowance mentioned in the act, produce to the collector the original agreement which may have been made with the fishermen, and also a certified copy of the days of sailing and returning, to the truth of which he shall swear before the collector.

These latter words include the first branch, as well as the second branch of the sentence, so that the owner must not only swear to the truth of the certificate, but also to the verity of the agreement with the fishermen.

A person was indicted in the District Court of Massachusetts for perjury, in swearing falsely to the agreement with the fishermen, and in swearing falsely that three-fourths of the crew were citizens of the United States. As the district judge held that the act of Congress only required the owner to swear to the certificate of sailing, and not to the agreement with the fishermen, the person was acquitted.

Afterwards, when indicted in the circuit court, this person pleaded his former acquittal. This was a good plea because the evidence necessary to sustain the indictment with respect to the fishermen's agreement might have been given by the United States in the first trial.

With respect to the oath that three-fourths of the crew were citizens of the United States, the act of 1813 did not require that oath, but then the indictment did not purport to bring the offense under that act, but referred to the statutes of the United States generally.

In March, 1854, Nickerson was indicted for perjury by the grand jury of the District Court of the United States for the District of Massachusetts, which indictment was framed under the Act of July 29, 1813, ch. 35, §§ 7, 9; 3 Stat. 49; revived February 9, 1816, ch. 14, 3 Stat. 254.

By section 7:

"The owner of every fishing vessel of twenty tons and upwards, his agent or lawful representative, shall, previous to receiving the allowance made by this act, produce to the collector, who is authorized to pay the same, the original agreement or agreements which may have been made with the

Page 58 U. S. 205

fishermen employed on board such vessel, as is hereinbefore required, and also a certificate, to be by him subscribed, therein mentioning the particular days on which such vessel sailed and returned on the several voyages or fares she may have made in the preceding fishing season, to the truth of which he shall swear or affirm before the collector aforesaid."

Section 9 then provides that

"Any person who shall make any false declaration in any oath or affirmation required by this act, being duly convicted thereof, shall be deemed guilty of willful and corrupt perjury, and shall be punished accordingly."

At the trial on the indictment before the district court, the offense set forth was making a false declaration, under oath before the collector that the paper produced and sworn to by the defendant was the original agreement.

The judge of the district court who tried the case held that this oath to the original agreement with the fishermen was not required by the Act of July 29, 1813, § 7, 3 Stat. 52. That the relative which, in that section, applied to and was satisfied by the oath to the certificate of the particular days on which such vessel sailed and returned &c., and consequently, no false declaration in any oath required by that act was set forth in the indictment, the only oaths required by the act of 1813 being to the days of sailing and returning, the time employed at sea, and the size of the boat or vessel.

The United States attorney then offered to prove that this was a false swearing, touching the expenditure of public money, under the Act of March 1, 1823, § 3, 3 Stat. 770. United States v. Bailey, 9 Pet. 238.

But the judge held the evidence inadmissible, and the defendant was acquitted.

In May, 1854, Nickerson was again indicted by the grand jurors of the circuit court for the crime of perjury in swearing that the fishermen's agreement produced was the original agreement, when in fact it was not, and also in swearing that three-fourths of the crew employed were citizens of the United States or persons not subject to any foreign prince or state, whereas five out of nine persons employed were subjects of Victoria, Queen of Great Britain and Ireland.

Whereupon Nickerson put in a plea setting forth the former indictment and acquittal.

The district attorney of the United States demurred to the plea, and the judges differed in opinion whether the defendant's special plea aforesaid be good in bar to this indictment, and the question was certified to this Court.

Page 58 U. S. 208

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