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
MR. JUSTICE STORY delivered the opinion of the Court.
This is a criminal case, certified from the Circuit Court of the
District of Kentucky upon a division of opinion of the judges of
that court.
The defendant, John Bailey, was indicted for false swearing
under the third section of the Act of Congress of 1 March, 1823,
ch. 165, which provides
"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 indictment charges the false swearing to be in an affidavit
made by the defendant before a justice of the peace of the
Commonwealth of Kentucky in support of a claim against the United
States under the Act of Congress of 5 July, 1832, ch. 173, to
provide for liquidating and paying certain claims of the State of
Virginia, and there are various counts in the indictment stating
the charge in different manners. It appears from the record, that
at the trial,
"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
Page 34 U. S. 252
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 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 said act mentioned, that affidavits made and subscribed before
any justice of the peace, of any of the states of the United
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 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
Page 34 U. S. 253
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 were stated, and ordered
to be certified to the Supreme Court.
It is admitted that there is no statute of the United States
which expressly authorizes any justice of the peace of a state, or
indeed 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 1832, ch. 173. And the question
is whether, under these circumstances, the oath actually
administered in this case was an oath upon which there would be a
false swearing, within the true intent and meaning of the act of
1823, ch. 165.
It is unnecessary to consider in this case whether an oath taken
before a mere private or official person, not authorized to
administer an oath generally or in special cases or not specially
authorized, recognized or allowed by the regulations or practice of
the Treasury Department as competent to administer an oath in
support of any claim against the United States, would, though the
claim should be admitted or acted upon in the Treasury Department,
under such a supposed sanction, be within the provision of the Act
of 1823, ch. 165. These questions may well be reserved for
consideration until they shall arise directly in judgment. In the
present case, the oath was administered by a state magistrate,
having an admitted authority under the state laws to administer
oaths,
virtute officii, in many cases if not in the
present case, and it is further found in the case that there was
evidence at the trial conducing to prove (and for the purposes of
the present argument it must be taken as proved) that the Secretary
of the Treasury did establish 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 of 1832, so that the
solution of the question now before us depends upon this -- whether
the oath, so
Page 34 U. S. 254
administered under the sanction of the Treasury Department, is
within the true intent and meaning of the act of 1823.
Admitting, for the sake of argument that it is true (on which,
however, we express no opinion) that a state magistrate is not
compellable to administer an oath,
virtute officii, under
a law of the United States which expressly confers power on him for
that purpose, still, if he should choose to administer an oath
under such a law, there can be no doubt that 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 we think that such an oath
administered under such circumstances would clearly be within the
provision of the act of 1823. That act does not create or punish
the crime of perjury, technically considered. But it creates a new
and substantive 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 judicial 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.
There being no express authority given by any law of the United
States to any state magistrate to administer an oath in the present
case, the next inquiry naturally presented is whether the Secretary
of the Treasury had an implied power to require, authorize, allow,
or admit any affidavits sworn before state magistrates in proof or
in support of any claim under the act of 1832, for if he had, it
would be very difficult to show that such an affidavit is not
within the true intent and meaning of the act of 1823 as it
certainly is within the very words of the enactment. The policy of
the act clearly extends to such a case, and the public mischief to
be remedied is precisely the same as if the affidavit had been
taken under the express and direct authority of a statute of the
United States.
And we are of opinion that the Secretary of the Treasury did, by
implication, possess 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. The third section provides
"That the
Page 34 U. S. 255
Secretary of the Treasury be and he is hereby directed and
required to adjust and settle those claims for half pay of the
officers of the aforesaid regiment and corps, which have not been
paid, . . . which several sums of money herein directed to be
settled or paid, shall be paid out of any money in the Treasury not
otherwise appropriated by law."
It is a general principle of law in the construction of all
powers of this sort, that where the end is required, the
appropriate means are given. It is the duty of the Secretary to
adjust and settle these claims, and in order to do so he must have
authority to require suitable vouchers and evidence of the facts
which are to establish the claim. No one can well doubt the
propriety of requiring the facts which are to support a claim, and
rest on testimony, to be established under the sanction of an oath,
and especially in cases of the nature of those which are referred
to in the act, where the facts are so remote in point of time and
must be so various in point of force and bearing. It cannot be
presumed that Congress were insensible of these considerations or
intended to deprive the Secretary of the Treasury of the fullest
use of the best means to accomplish the end,
viz. to
suppress frauds, and to ascertain, and allow just claims. It is
certain that the laws of the United States have, in various cases
of a similar nature from the earliest existence of the government
down to the present time, required the proof of claims against the
government to be by affidavit. In some of these laws, authority has
been given to judicial officers of the United States to administer
the oaths for this purpose, and at least as early as 1818 a similar
authority was confided to state magistrates. The citations from the
laws made at the argument are direct to this point, and establish
in the clearest manner a habit of legislation to this effect.
* It may be added
that it has been stated by the Attorney General and is of public
notoriety that there has been a constant practice and usage in the
Treasury Department in claims against the United States, and
especially of a nature like the present, to require evidence by
affidavits in support of the claim, whether the same has been
expressly
Page 34 U. S. 256
required by statute or not, and that occasionally general
regulations have been adopted in the Treasury Department for this
purpose.
Congress must be presumed to have legislated under this known
state of the laws and usage of the Treasury Department. The very
circumstance that the Treasury Department had, for a long period,
required solemn verifications of claims against the United States
under oath as an appropriate means to secure the government against
frauds without objection is decisive to show that it was not deemed
an usurpation of authority.
The language of the act of 1823 should, then, be construed with
reference to this usage. 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 include all such cases, and we can
perceive 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.
There is nothing new in this doctrine. It is clear by the common
law that the taking of a false oath with a view to cheat the
government or to defeat the administration of public justice,
though not taken within the realm or wholly dependent upon usage
and practice, is punishable as a misdemeanor. The case of
O'Mealy v. Newell, 8 East 364, affords an illustration of
this doctrine. In that case, it was held that a person making or
knowingly using a false affidavit of debt, sworn before a foreign
magistrate in a foreign country, for the purpose of holding a party
to bail in England, although such affidavit was not authorized by
any statute, but was solely dependent upon the practice and usage
of the courts of England, was punishable as a misdemeanor at the
common law as an attempt to pervert public justice. Upon this
occasion, Lord Ellenborough, after alluding to the practice of
receiving such affidavits made in Ireland and Scotland as well as
in foreign countries, said the practice in both cases must be
equally warranted or unwarranted. In none of these cases
Page 34 U. S. 257
can the party making a false affidavit be indicted specifically
for the crime of perjury in the courts of this country. But in all
of them, as far as he is punishable at all, he is punishable for a
misdemeanor in procuring the court to make an order to hold to bail
by means and upon the credit of a false and fraudulent voucher of a
fact produced and published by him for that purpose. And the court
held the practice perfectly justifiable.
Upon the whole, we are of opinion that where 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
purview of the Act of 1823, ch. 165. It will be accordingly
certified to the circuit court that the said Josiah Reed, named in
the certificate of division of the judges of the circuit court,
being a justice of the peace of the Commonwealth of Kentucky,
authorized by the laws of that state to administer oaths, had
authority and jurisdiction to administer the oath and take the
affidavit in the said certificate of division mentioned, and that
if the facts stated therein were falsely sworn to, the case is
within the Act of Congress of 1 March, 1823, referred to in the
same certificate.
* Act of 28 February, 1793, ch. 61, [17]; Act of 3 March, 1803,
ch. 90; Act of 10 April, 1806, ch. 25; Act of 18 March, 1818, ch.
18; Act of 1 May, 1820, ch. 51; Act of 3 March, 1823, ch. 187.
MR. JUSTICE McLEAN, dissenting.
The question involved in this case is important, as it regards
the construction of a highly penal law of the union, and of still
greater importance as it respects the powers of state officers
under an act of Congress which confers on them no special
authority.
In the third section of the Act of Congress of 1 March, 1823, it
is provided that
"If any person shall swear or affirm falsely touching the
expenditure of public money or in support of any claim of the
United States, he or she shall, upon conviction thereof, suffer as
for willful and corrupt perjury."
And in the thirteenth section of the Act of 3 March, 1825, it is
declared that
"If any person, in any case, matter, hearing, or
Page 34 U. S. 258
other proceeding, when an oath or affirmation shall be required
to be taken or administered under or by any law or laws of the
United States, shall, upon taking such oath or affirmation,
knowingly and willingly swear or affirm falsely, every person so
offending shall be deemed guilty of perjury,"
&c.
These are the acts under which the offense of false swearing is
charged against the defendant. The oath was administered by Josiah
Reed, a justice of the peace for Bath County, in the State of
Kentucky, with the view of obtaining money from the government. It
does not appear that in this law or any other the claim asserted
was required to be substantiated by oath, but it was proved that
such requirement was made by the Secretary of the Treasury, whose
duty it was to decide on the merits of the claim. Nor does it
appear that any authority has been given by any act of Congress to
a justice of the peace to administer an oath in such a case, and
the question arises whether, admitting the affidavit of Bailey to
be false, Justice Reed had power to administer such an oath? If it
shall be found that no such power existed, the false swearing,
though highly immoral, is not an offense under either of the acts
of Congress which have been cited.
The statutes of 1823 and 1825 above cited have extended the
crime of perjury, or the punishment annexed to it, to a false
swearing, which neither by the common law nor the previous acts of
Congress constituted perjury. Beyond this, these acts do not go.
They do not dispense with any of the essential requisites, beyond
what is expressed, to constitute the crime of perjury.
The definition of perjury at common law, as given by Hawkins,
is, "a willful, false oath, &c., in any procedure in a course
of justice." This offense may be committed in depositions,
affidavits, &c., taken out of a court of justice.
By the act of Congress of 1790 it is provided that
"If any person shall willfully and corruptly commit perjury on
his or her oath or affirmation in any suit, controversy, matter, or
cause depending in any of the courts of the United States or in any
deposition taken pursuant to the laws of the United States, every
person so offending shall suffer,"
&c. In 4 Black.Com. 136 it is stated
"The law takes no notice of any perjury but such as is committed
in some court of justice having power
Page 34 U. S. 259
to administer an oath or before some magistrate or proper
officer invested with a similar authority."
And Lord Coke, in 3 Inst. 165, says,
"That no old oath can be altered or new oath raised without an
act of Parliament, or any oath administered by any that hath not
allowance by the common law or by act of Parliament."
No one can doubt that an oath administered by a person without
authority is a void act. It imposes no legal obligation on the
person swearing to state the truth; nor is he punishable under any
law for swearing falsely in such a case.
The prosecution in this case is attempted to be sustained on two
grounds.
1. From the general language of the law defining the offense of
false swearing.
2. From the usage of the Treasury Department.
And first as to the language of the act under which this
prosecution was commenced. The act is general in its language
against "any person who shall swear falsely," but it gives no
authority, either general or special, to administer an oath. This
power must be sought in other acts of Congress or in a judicial
office to which the power is incident.
The federal government is one of limited and specific powers. In
the discharge of its functions, except in certain specified cases,
its acts are as distinct from those of a state government, as if
they were foreign to each other. The officers of the one
government, as such, can do no official acts under the other; the
sources of their authority are different, as well as their duties
and responsibilities.
When a law for the punishment of offenses is passed by either
the federal or a state government, it can only operate within the
proper jurisdiction. The officers of the federal government can
take no cognizance of the penal laws of a state, nor can the
judiciary of a state, in my opinion, carry into effect the criminal
laws of the union. If this could be done, it would consolidate the
jurisdictions of the respective governments and introduce into our
judicial proceedings the utmost confusion. It is not in the power
of Congress to transfer any part of the jurisdiction which the
Constitution has vested in the federal government. If this can be
done by Congress to any extent, it may be done without limitation,
and in this way the powers
Page 34 U. S. 260
of the federal government might be lessened or utterly
destroyed.
A federal judicial officer, either by act of Congress or as an
incident to his office, has the power to administer oaths. This
power, however, can only be exercised within the jurisdiction of
the federal government and in cases where an oath is required or
sanctioned by the laws of that government. And so of the judicial
officers of a state. If either officer act beyond the sphere of his
appropriate jurisdiction, his act is a nullity.
In this view of the case, there is no difference in principle
between administering an oath and any other act which belongs to
the judicial character of the officer.
By an act of Congress, depositions may be taken before certain
state officers in any cause pending in the courts of the United
States. Among these officers, a justice of the peace is not named
unless he be a judge of a county court, and it has been often
decided that a deposition taken before a justice of the peace who
is not a member of a county court or before any other state officer
than those named in the act cannot be read in evidence.
Under the state jurisdiction, the justice may have power to
administer oaths, but he is not recognized as having a right to
exercise this power under the act of Congress. And would anyone
contend that a deposition taken before a justice under such
circumstances could lay the foundation of a prosecution for
perjury?
The state officers named in the act as having the power to take
depositions do not act, in taking them, under their general power
to administer oaths as state officers, but under the special
authority of the act of Congress. Any other persons designated by
their official characters might as well have been named in the act
of Congress, though they had no power under any law of the state to
administer oaths. The officers named in the act are referred to as
descriptive of persons who may exercise the authority given, and
for no other purpose.
In the argument of this case for the prosecution, a great number
of acts of Congress were read granting pensions and for other
purposes in which state officers were specially authorized to
administer oaths. This I take to be a conclusive
Page 34 U. S. 261
exposition by Congress against the powers of state officers to
administer oaths for federal purposes. Would a special authority
have been vested in them for this purpose if in the opinion of
Congress they possessed a general authority under the state laws?
But one answer can be made to this inquiry. Congress knew well that
state officers could exercise under their general authority no such
power, and it was expressly conferred on them by an act of federal
legislation.
If this power to administer an oath by a judicial officer of a
state, in matters of a civil nature which relate to the federal
jurisdiction, cannot be recognized as legal; much less should it be
sanctioned, as laying the foundation of a prosecution for perjury.
The false swearing with which the defendant stands charged, though
not technically perjury, is punished as such.
Under a general law of a state which defines the offense and
provides for the punishment of perjury, would a false oath taken
before a federal judicial officer be punishable? Would it not be
essential in such a case to show that the person administering the
oath acted under the authority of the state? Could the state
tribunals recognize any other authority than that which belongs to
their own jurisdiction? If no state law authorizes an oath to be
administered by a federal officer, can he administer it for state
purposes? Could the acknowledgement of a deed or other instrument
be made before a federal judge under a general statute of a state
requiring such instrument to be acknowledged before a judge of the
court? All these questions must be answered in the negative.
To say that the federal officer has a right to administer oaths
by an act of Congress or as an incident of his office does not
remove the objection. Can a judge of the federal court exercise his
functions in a state tribunal? Such a pretension would be too
absurd to merit serious consideration. And yet is there any
difference in principle between a federal judicial officer
discharging his function in a state tribunal and administering an
oath for state purposes. Does he not in both cases exercise the
functions of his office under the jurisdiction of the state?
It is admitted that the legislature of a state, as well as
Congress, may authorize any persons, by name or by their official
designations, to administer oaths in all cases required under
Page 34 U. S. 262
the laws of their respective governments, but I am examining the
case of the defendant where no statutory power to administer the
oath is pretended to have been given by Congress.
Any official act of a federal officer under the jurisdiction of
a state which has not authorized such act by him is extrajudicial
and in no point of view legal. Nor can an oath administered under
such circumstances, however false, be punishable under a general
statute of the state against false swearing. The act of
administering the oath, being done without authority, is void. It
subjects the false swearer to no greater penalty than if it had
been administered by a private citizen without any pretense of
power.
The law, it may be said, denounces the punishment for false
swearing generally. And can there be a false swearing within the
meaning of the act before a person who has no authority to
administer an oath?
From these considerations it would seem that no punishment could
be inflicted by a state tribunal under an act against false
swearing where the oath had been administered by a federal officer
whose act was not sanctioned by any law of the state.
And if this be the case under the jurisdiction of a state, is it
not equally clear that the same principle applies to the federal
jurisdiction? If a state tribunal cannot punish for false swearing
where the oath is administered by a federal officer without any
sanction by the laws of the state, can a federal tribunal punish
for false swearing where the oath is administered by a state
officer without any sanction by the laws of the union.
The act of Congress against false swearing is general, and no
reference is made to the authority under which the oath shall be
administered, but does it not follow as a consequence that the oath
must be administered under the same jurisdiction which enacted the
law? Did Congress intend to punish an offense committed before a
state tribunal? They had the power to punish false swearing before
any individual whom they might have authorized to administer the
oath, but in this law they have not so provided, nor in any other
law which relates to the case under consideration. It therefore
follows in this view that Justice Reed, in administering the oath
to the
Page 34 U. S. 263
defendant, acted without authority, and the affiant cannot be
subjected to the penalty for false swearing.
If this offense may be perpetrated before a state officer
because the law denouncing it is general, on the same ground may
not a state tribunal inflict the penalties of this law?
But it is insisted that under the rule of the Treasury
Department which required the oath to substantiate the claim, the
justice was authorized to administer the oath.
Can this position be sustained?
It has been shown that Justice Reed, in administering the oath,
did not act under the authority of the state or of any law of
Congress, and the question is fairly presented whether the
Secretary of the Treasury has the power to invest any individual
with a competent authority to administer oaths in matters which
relate to the Treasury Department.
That the Secretary of the Treasury, who, in the discharge of his
duties, is required to investigate and decide annually numerous and
various claims on the Treasury, may require certain claims to be
substantiated by oath is not controverted.
But this admission goes no length in sustaining the prosecution,
for it does not follow, if the Secretary require an oath in proof
of a claim, that the can invest any individual with the power to
administer such oath.
In the first place, there is no necessity for the exercise of
the power, by the Secretary, because there are officers of the
United States who are duly authorized to administer oaths. But
there is no power in any executive officer to clothe any individual
with the important authority of administering oaths. It is a power
which belongs to the legislative department, and can nowhere else
be exercised.
In certain cases, courts may issue commissions to take
depositions, and these give authority to administer oaths in the
cases stated; but this is done under the express sanction of law.
Can the Secretary himself administer an oath which shall lay the
foundation of a prosecution for perjury? But it is said that it has
been the usage of the department to act on oaths administered by
state officers. That such has been the usage I can entertain no
doubt, but there is no proof before this Court, nor was there any
before the circuit court, that such usage exists
Page 34 U. S. 264
in cases where Congress have given no authority to administer
the oath.
But suppose the usage did extend to cases where no authority had
been given by Congress to a state officer to administer an oath;
could usage constitute the law in such a case? The usage of the
department may not only fix the rule of decision, but in many cases
the ground and extent of a claim against the government. But this
usage cannot extend beyond the action of the department.
The Secretary of the Treasury requires oaths to be administered
by state officers in proof of certain claims, to guard the public
interest, but does that legalize such a procedure? It may prove
salutary for the purpose intended, but does it follow that the
oaths administered by anyone, if false, are within the act of
Congress against false swearing? This act is a highly penal one. A
conviction under it destroys the character of the individual and
deprives him of his liberty. Like all other criminal acts, it
should receive a strict construction, and no person should be
subjected to its penalties who has not clearly violated its letter
and spirit.
In one sense, it may be said that the defendant, Bailey, is
within the law because the law punishes false swearing and he has
sworn falsely before a justice of the peace. But the question
recurs had this justice the power to administer the oath? If he had
not, Bailey has not incurred the penalties of the law.
A decision from 8 East 364 has been read as applicable to the
case now under consideration. That was a case in which the Court of
King's Bench decided that an affidavit taken in a foreign country
was sufficient, under the practice of the court, to hold a
defendant to bail. But Lord Ellenborough said that
"in none of these cases can the party making a false affidavit
be indicted specifically for the crime of perjury in the courts of
this country; but in all of them, as far as the party is punishable
at all, he is punishable for a misdemeanor in procuring the court
to make an order to hold to bail by means and upon the credit of a
false and fraudulent voucher of a fact produced and published by
him for that purpose."
It appears from this opinion that the false swearing in a
foreign affidavit could not lay the foundation of a criminal
Page 34 U. S. 265
prosecution; but the use which was made of such affidavit, and
the effect produced by it -- these constitute the gist of the
prosecution.
A false affidavit to hold to bail, if made in England and before
a person competent to administer an oath, would be perjury. But
Lord Ellenborough says, in substance, if the oath be administered
in a foreign country or in Ireland or Scotland, though false, does
not subject the affidavit to a prosecution for perjury nor for any
criminal prosecution founded exclusively upon the false
swearing.
If, by the practice of the court, a mere statement by the
plaintiff were sufficient to hold to bail, and such statement were
made falsely, it would subject the plaintiff to punishment by the
common law, for in the language of the judge,
"procuring the court to make an order to hold to bail by means
and upon the credit of a false and fraudulent voucher of a fact
produced and published by him for that purpose."
This opinion, it appears to me, does not conflict with the view
I have taken of this case.
But it is insisted that the law against false swearing was
passed with a knowledge by Congress of the usage of the department
to require oaths before state officers, and that it must be
presumed they intended to sanction such usage. Is such a
presumption admissible in a criminal case? The effect of the law
must be limited, in its penalties, to the jurisdiction under which
it was enacted, and it should not be construed to embrace cases
which do not come legitimately within its purview.
A court, in giving a construction to a highly penal law, will
look at its letter and spirit, and cannot extend its provisions by
construction from motives of policy which may be supposed to have
influenced the legislature.
If state and federal officers, as such, may exercise their
functions within the jurisdiction of either government to any
extent, I see no principle by which their powers shall be limited.
Such a course would blend the jurisdictions of the federal and
state governments, and be likely to lead to the most serious
collisions.
I consider this question as one of great importance, and
differing as I do from the opinion of the Court, I have felt bound
to give the reasons for my opinion.
Page 34 U. S. 266
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Kentucky, and on the point on which the judges of the said circuit
court were opposed in opinion, and which was certified to this
Court for its opinion agreeably to the act of Congress in such case
made and provided, and was argued by counsel, on consideration
whereof it is ordered and adjudged by this Court that it be
certified to the said circuit court as the opinion of this Court
that the said Josiah Reed, named in the certificate of division,
being a justice of the peace of the Commonwealth of Kentucky,
authorized by the laws of that state to administer oaths, had
authority and jurisdiction to administer the oath and take the
affidavit in the said certificate of division mentioned, and that
if the facts stated therein were falsely sworn to, the case is
within the Act of Congress of 1 March, 1823, referred to in the
same certificate.