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THE UNITED STATES, PLAINTIFF v. JOHN BAILEY.

January 1, 1835

THE UNITED STATES, PLAINTIFF
v.
JOHN BAILEY.



On a certificate of division in opinion between the judges of the circuit court of the United States for the district of Kentucky. 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 wilful 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, Jun., and James C. Bailey, who have joined with him in a power of attorney, to the honourable Richard M. Johnson, to draw and moneys that may be 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 any thing, 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 the 5th day of 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 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 the 3d of 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 the 1st of 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.' The case was argued by the Attorney-General, and Mr Loughborough, for the United States. No counsel appeared for the defendant. For the United States the following points were made. 1. That the act of the 5th of July 1832, is in pari materia with the other acts of congress upon the subject of claims for revolutionary services; and that evidence under it may legally be taken, as in cases of claims under those other laws. 3 Story 1663, 1739, 1778, 1927. 2. That the secretary of the treasury pursued the intent of the act of 1832, in requiring the affidavit in this case; and that the oath falls within the thirteenth section of the crimes act of 1825. 3. That the act of 1823 embraces all oaths, that, by the usage of the government, are received as evidence in support of claims against the United States. 4. That the justice of the peace had jurisdiction to administer this oath under the said act. 5. That the act embraces every case of swearing in which a false oath is actually taken, and the affidavit is used fraudulently in support of a claim against the United States. 6. That this construction of the act creates no new offence; the evidence against the prisoner showing an offence which would be punishable if the circuit court had a common law jurisdiction of crimes. 1 Hawk. 430; Noy 100; Moore 627; Hob. 62; 8 East's Rep. 364. 7. That in a prosecution upon the act of 1823, it is not necessary to a conviction to show the requisites of technical perjury. Mr Loughborough, for the United States. The indictment is founded upon the thirteenth section of the crimes act of 1825, 3 Story 2002, and the third section of an act of 1823. 3 Story 1917. Two counts of the indictment charge the offence of perjury under the first named law; and two, the offence of false swearing denounced by the act of 1823. The oath was made before a justice of the peace of the commonwealth of Kentucky, in support of a claim by the prisoner against the United States, as the executor of his father, John Bailey; falsely alleged to have been a captain in the Illinois regiment in the army of the revolution, for the amount of half pay due to such captain, in virtue of the provisions of an act of congress of July 5th 1832, entitled 'an act to provide for liquidating and paying certain claims of the state of Virginia.' The objections to the prosecution, in the court below, took a wide range. It was urged on behalf of the prisoner, that the oath upon which perjury or false swearing is assigned, must be a legal oath; that is, an oath taken before an officer having a jurisdiction to administer it–that congress could not confer upon the justice jurisdiction to administer this oath–that such jurisdiction had not in fact been confirmed by congress–that the practice of the government, and the regulations of the treasury, could not give the jurisdiction–that the United States could not punish the swearing falsely, in an oath taken before a state officer. The point certified for the opinion of this court regards the jurisdiction of the justice: the difficulty in the mind of one of the judges below, existing on the ground that the oath in the case had not been authorised by act of congress, to be taken before the justice. As to so much of the objections to the prosecution as rests upon assumed constitutional grounds, little need be said. It is not supposed they would be seriously urged in this tribunal. A glance at the statute books of the United States will show what has been the sense of congress upon the subject. The first act of congress, after the adoption of the present constitution, authorised oaths to be administered by state officers. Oaths of custom-house officers may be taken before state justices. Story 17. Depositions in courts of the United States may be made before state judges, 1 Story 64; and perjury in them is punishable by the United States. By an act of March 3d 1819, oaths therein directed may be made before state officers, and false swearing is expressly made perjury. 3 Story 1736. False swearing before state officers, in support of claims for pensions, under the acts of 1818 and 1820, is expressly made punishable as perjury. Instances might be multiplied to show that congress frequently avails itself of the agency of state officers in executing its laws, and supposes its power competent to the punishment of offences committed by, or before them.

The opinion of the court was delivered by: To deny these powers in the federal government, would be to create a necessity for a great multiplication of federal officers to discharge duties now well performed by state functionaries. That congress might avail itself of the agency of state officers, was admitted at the period of its adoption. See Federalist 82, and as late as the case of Houston v. Moore, 3 Wheaton 433, 4 Cond. Rep. 286. It is not a question whether congress can compel a state officer to perform a duty, or make an obligatory enlargement of his jurisdiction. Here the justice has exercised the jurisdiction.

Acts upon the same subject, should receive the like construction. This is one of the soundest rules. The act of July 5, 1832, under which this oath was taken, is in pari materia with the other acts for the payment of claims for revolutionary services, as pensions and half-pay. These acts constitute a system of legislation. How may other claims for pensions and half-pay be obtained?

Previous to 1818, evidence for pensions was to be made before federal officers. See acts of 1793, 1803 and 1806, Story 304, 903, 1008.

But by the act of 1816, Story 1562, the President and secretary of war were authorized to prescribe forms of evidence in cases under that act, for five years half-pay pensions.

By the act of 1818, Story 1663, and the following other acts, oaths for pensions may be made before state officers: act of 1819, Story 1739; act of 1820, Story 1778; act of 1823, Story 1926.

The act of May 15th 1828, directs pensions to be granted to those who shall produce to the secretary of the treasury, 'satisfactory evidence' that they are entitled. This act places upon the pension roll, a distinct class of persons not before entitled.

The act of June 7th 1832, is supplementary to that of 1828. It places also upon the roll, a new class of persons, who shall produce 'satisfactory evidence' that they are entitled.

Under these last two acts, a very large number of pensions have been granted; and five-sixths of them upon oaths made before state officers. Are these oaths illegal and unauthorized? Have the pensions been improperly granted? Shall they now be arrested? Neither of the acts authorises state officers to administer the oaths which were received as evidences by the department. These acts merely required that the evidence should be 'satisfactory' to the secretary. By receiving under them evidences made in the manner expressly authorised by congress in similar cases, under laws relating to the same general subject, did the department pass beyond the line of its duty?

The certificate shows, that the affidavit in this case was made pursuant to a regulation of the secretary of the treasury, to carry into effect the act of July 5th 1832. That act devolved upon him the performance of a certain duty. To perform this duty, it was essential he should inform himself in every case arising under the act, of certain facts. Who are the identical officers entitled to half-pay–whether living or dead, and if dead who their representatives are: these are things of which it is manifest the secretary of the treasury could, as such, have no intuitive knowledge. The act of congress gave him no knowledge upon these points. It is general. To the officers or their representatives he shall pay the money. The act does not prescribe the mode in which he shall be informed. It was essential then that it should be prescribed by himself. As he is to be satisfied of certain facts, it is for him to say to claimants how they shall proceed to effect that object. He has prescribed the mode of procedure; and in doing so, must be supposed to have exercised a power vested in him by necessary implication. Was it illegal or improper for him to make a regulation, when without a regulation the law must have remained a dead letter?

Then, as to the nature of the regulation made by the secretary. It is to receive as evidence an oath before a state justice of the peace–a mode of evidence expressly prescribed by congress in similar cases of claims against the United States, under laws in pari materia with that which he was executing. Not only, then, has the secretary adopted no novel or improper mode of proof, but he has only availed himself of an instrument, placed under his control in like cases; and which, when the uniform practice of the government is considered, congress must have supposed at his disposition in a case in which no other direction is made by it.

It has been the uniform practice, it is believed, of the government, to receive in support of claims against the United States, evidence such as the present. In the various accounting offices of the treasury, depositions and affidavits before state officers are, and have been taken as competent proofs in support of claims and accounts. Congress, and its various committees, have also been in the constant practice of receiving these affidavits as competent evidence in support of claims. In the judiciary department of the government, also, it has been, and is yet the practice to receive as affidavits papers sworn to before state magistracy. It will be strange, if it shall now for the first time be discovered, that these oaths are not such legal oaths as that they who falsely take them may be punished–strange, that congress and every other department of the government, should have remained in darkness till the present day–and that a practice, coeval with the government, shall have now to be set aside as erroneous. If such be the case, then it will result that things may be oaths for some purposes and not for others; that a paper may be an affidavit for the purpose of effecting a fraud, and yet not one for the purpose of judicial examination.

The thirteenth section of the crimes act of 1825 makes it perjury to swear falsely in any case, matter, hearing or other proceedings, whenever an oath shall be required to be taken, under any act of congress. Such was the oath in the present case. This was a proceeding by claim on the part of the prisoner against the United States, and the oath was required to be taken by the secretary of the treasury under the act of July 5th 1832. It has been attempted to be shown that the secretary of the treasury holds the power to require this oath. If this be so, it results that the justice had jurisdiction to administer it. He had such a jurisdiction as the secretary of the treasury deemed competent. And as he has exercised it, and the paper has been used as an affidavit or sworn paper by the party, the objection of the want of jurisdiction will not lie.

It is not necessary at common law, in a prosecution for perjury, to show that the oath was expressly directed by an act of parliament. Perjury may be committed in false swearing in a court of equity, ecclesiastical, military or maritime. 1 Hawk. Pl. 430. So also false oaths taken before commissioners appointed by the king to examine witnesses in relation to any matters concerning his honour or interest, are perjuries, 1 Hawk. Pl. 430; or before commissioners to inquire of the forfeiture of his tenants' estates. Noy 100; Moore 627; Hob. 62. In Connecticut it has been settled that wherever the administration of an oath is lawful, that is, not forbidden, false swearing is perjury at common law. 2 Conn. Rep. 30. Here, the justice is as the commissioners appointed by the crown to examine a witness concerning its interest. At common law, and in England, then, the offence in this case would be a perjury: and the construction of the act of 1825, which makes it embrace this case, creates no new offence; nor an offence which the court below would not have power to punish, if it possessed a common law jurisdiction of crimes.

If, however, the case does not fall within the act of 1825, it is respectfully contended that it is embraced by the act of 1823 for the punishment of the offence of false swearing in support of claims against the United States.

Previous to a discussion of this statute, we will examine the doctrines of the common law as to false oaths. That law does not content itself with the punishment of the crime of perjury only. As all false swearing is not, technical, perjury, the common law would be very defective if it visited with punishment the one species only of this class of offences. Accordingly, it will be found that the law is not thus deficient. It is held that false swearing in fraud of another's right, or to the stoppage or hindrance of justice, is a misdemeanour, punishable by fine, imprisonment and corporal pain.

Where an act of parliament requires an oath to be taken, false swearing is not perjury unless the statute so declares. 4 Christian's Black. 137, note. Will it be said, however, that such false swearing is no offence? That it is no misdemeanour, because it is no felony?

In the case of O'Mealy v. Newell, 8 East 364, a false affidavit made in France, was produced and used in the king's bench. Lord Ellenborough held it an offence punishable at common law as a misdemeanour. In that case, a prosecution in England for perjury could not be sustained, because the swearing was out of the kingdom. The court could not take cognizance of any fraud committed out of its jurisdiction. In this case, supposing the court below to have possessed a common law jurisdiction of crimes, can it be doubted that the certificate shows a misdemeanour on the part of the prisoner; a false oath actually made within the jurisdiction of the court, and used as a competent and true affidavit in the successful perpetration of a fraud? The general principle of the common law, and the case in East, irresistibly lead to this conclusion.

In prosecuting Bailey, therefore, for false swearing, in support of a claim against the government, nothing was done which the common law would not sanction. But as it is not contended that the circuit court derives from the common law any power to punish offences; it remains to show that the indictment and the case shown in the certificate, fall within the statute upon which the prosecution was based. In doing this, it will appear that the act of 1823 creates no new offence. It only prescribes a punishment for, and gives the courts of the union jurisdiction to try an offence before known to the common law. It simply converts a common law misdemeanour, into the special statutory offence of 'false swearing.' As a statutory offence only, it is a new one. In a prosecution founded upon the act of 1823, it is not necessary to show the requisites of technical perjury. It is necessary merely that the case be brought within the words of the statute. This is all that is ever required upon indictments concluding against the form of a statute.

The words of the act are, that 'if any person shall swear falsely in support of a claim against the United States, he shall suffer,' &c. It does not say how, or before whom, the false oath punished by it shall be taken. Why was the act made thus general? The answer is, that the lawmakers were aware of the practice of the government, in every department, to receive oaths before state officers in support of claims. The inconvenience of abolishing this practice, and requiring claimants to go in all cases before federal judges was obvious. Congress, therefore, left the practice undisturbed, as it had always existed; but affixed to falsehood in these oaths the punishment of perjury. Indeed, considering the uniform practice of the departments and of congress itself, to receive these oaths as evidence, and the presumption that it must have been in the minds of the legislators, at the time of the adoption of the act of 1823; the conclusion cannot well be resisted, that the generality of the language of that act was of purpose to embiace oaths such as this.

Thus regarding the subject, it is contended, that the justice had a jurisdiction to administer this oath under the act of 1823. But it is submitted whether upon a true construction of that act, and the application of it to the facts of this case, a difficulty as to the want of jurisdiction in the justice, can be resisted by one who has actually taken a false oath, and successfully used it, in support of a fraudulent claim against the United States. Without any particular inquiry as to jurisdiction, does not the act of 1823 extend to every case in which a false oath is actually taken in support of a claim? Does it not embrace every case in which the oath is, by the admitted practice of the departments, received as evidence in support of claims? It is contended that it does.

Justices of the peace have, by common law, a power to administer oaths in some cases. Burn's Justice, 'Oaths.'

In Kentucky, justices have a criminal and a civil jurisdiction, in matters of tort and contract; and their proceedings are, by law, records. 2 Dig. Kent. Laws 701. The justice of the peace was, by the laws of Kentucky, as competent to take this affidavit as the highest judge of the state, or as any other court of record.

The Kentucky statute against perjury, 2 Dig. Kent. Laws 994, punishes false swearing, in certain cases, before justices of the peace.

By the nature of his office, therefore, the justice had a general jurisdiction to administer oaths. It was in contemplation of such a jurisdiction, that the secretary of the treasury made the regulation found in this case; and that the prisoner took the oath.

Suppose this oath had been made before the United States district judge; would not the objection of the want of jurisdiction then lie as well as now? No law of congress has expressly authorized him to administer the oath? And he has no more general right to administer oaths than the Kentucky justice of the peace.

It is unnecessary to dweil upon the consequences to flow from a decision of this case against the prosecution. They are obvious. They may be summed up as constituting much public inconvenience and mischief, and great private wrong, not to speak of the impunity with which frauds, in cases of revolutionary claims, will have been perpetrated. Truly, there is nothing in these results to attract the court.

Mr Butler, attorney-general, declined going at large into an argument of the case, after it had been so fully discussed by Mr Loughborough; but would give the court some references to provisions of the laws of the United States.

The third and fourth counts in the indictment are on the act of 1823, and charge the defendant with 'false swearing.' The first count charges perjury, and is not founded on that act. If the act of 1823 created a new offence, one not before known, that of false swearing to support claims on the United States; the three counts in the indictment can be supported. The case admits the false swearing, and this brings the defendant within the provisions of that law. The affidavit made by the defendant before a magistrate was false; why is he ...


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