PERJURY-OATH MUST BE REQUIRED BY LAW-OFFICER MUST HAVE JURISDICTION.

UNITED STATES v. NICKERSON.

[1 Sprague, 232.]

In the United States District Court, Massachusetts, 1854.

1. In order to Sustain an Indictment for perjury it must appear that the officer had authority to administer the oath charged.

2. Under the Act of 1813, in Relation to Fishing Bounty, no oath is required to the agreement referred to in the seventh section.

3. The Act of 1813, Prescribes the oaths to be taken to obtain the fishing bounty, and it is not competent for an officer to require a new oath, so as to make the false taking of such oaths criminal.

INDICTMENT for taking a false oath to obtain the fishing bounty under the act of 1813.

After argument by C. B. Goodrich & T. K. Lothrop, for the prisoner, and by B. F. Hallett, district attorney, for the government, the court said, that, by the seventh section, no oath was required to the agreement. That section required the production of the agreement therein described, and also a certificate therein described, "to the truth of which he or they shall swear." The word "which" is satisfied by the antecedent certificate. The word also" indicates the commencement of a distinct clause. The words "the truth of" are apt, as applied to a certificate, but inapt, as applied to an agreement; and here the oath actually taken and alleged in the indictment was not to the truth of the agreement, but that it was the original agreement. And further, it is not necessary that the agreement should be produced and the certificate made at the same time. The Legislature may have intended that the oath should extend to the agreement, but it is by no means clear that they did so. The language is too indeterminate and the uncertainty too great to warrant a conviction.

Upon learning this opinion of the court, the district attorney proposed to prove that the oath as to the agreement was taken in pursuance of instructions from the Secretary of the Treasury to the collectors relative to the payment of the fishing bounty, and contended (upon the third section of the statute of March 1, 1823,1 and the case of United States v. Bailey,2) that the Secretary of the Treasury had a right to require an oath as to the agreement, and that such an oath, so required, would be a legal one, the false taking of which would sustain an indictment for perjury.

The court (SPRAGUE, J.) without expressing an opinion on this point, held the evidence inadmissible in support of the present indictment, which rested upon different grounds, and charged the defendant with perjury, committed by false swearing, in an oath required by the statute of July 29, 1813, and instructed the jury that this indictment was not sustained; and they thereupon returned a verdict of not guilty.

A motion was then made for the discharge of the prisoner.

Hallett, district attorney for the United States, objected, on the ground that further proceedings would be instituted against him, under the statute of March 1, 1823,1 which provides 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, upon conviction thereof, suffer as for willful and corrupt perjury;" and he cited the case of United States v. Bailey, already referred to, to show that such an indictment might be maintained.

SPRAGUE, J. The court has already decided that no oath to the agreement is required by the act of 1813, and the jury, under the direction of the court, have returned a verdict of not guilty. A motion has been made for the discharge of the prisoner, to which the district attorney objects, on the ground that he wishes to retain the prisoner in custody, that he may institute new proceedings against him for the same offense. He states that the oath as to the agreement was taken in compliance with the instructions of the Secretary of the Treasury, and in conformity with the usage of the last forty years in all cases where claims have been made for the fishing bounty; and he cites the decision of the Supreme Court in United States v. Bailey to show that the Secretary of the Treasury has power to require oaths to be taken in support of claims, and that they are legal oaths.

That case goes to the extreme of the law and is not to be extended. Let us compare it with the present case, and see if there is any distinction between them. In that case, an act of Congress authorized the treasury department to adjudicate upon and settle certain claims on the State of Virginia, for pay for military service, which had been assumed by the United States. There was no provision as to the kind of proof the secretary might require, and the adjudication of the department was, I believe, final. The Supreme Court say that Congress must be supposed to have acted with reference to the well known usage of the department, to require the oath of the claimant in support of claims payable there; and therefore that the Secretary had authority to insist upon the oath in that case, and that the oath so taken was a legal one.

1 ch. 37, sec. 3.

But by the statute of July 29, 1813, Congress has seen fit to prescribe expressly the kind of proof of compliance with the requirements of that act, for obtaining the fishing bounty, which shall be necessary to entitle the owner of a fishing vessel to claim the bounty. It directs that the owners of vessels of more than twenty tons, shall produce the agreements made with their fishermen, and also a certificate of the days of the vessel's sailing and returning, and of the time that she was at sea. And it further requires an oath to the truth of the certificate. There are other requisitions for boats and vessels between five and twenty tons; and when these proofs have been made, the collector is to pay the bounty. Now, when Congress, the supreme legislative authority, has thus directed precisely what shall be done, to entitle a party to receive the bounty, what papers shall be produced, and to which of them an oath shall be required, it is not competent for any officer to require new oaths, so as to make the false taking of such oaths legally criminal. The difference between this case and that of United States v. Bailey, is, that in that case, no mode of proof was provided by law; in this case, Congress has seen fit to prescribe the amount and manner of proof.

I might further say, that in this case the Secretary of the Treasury has no authority by the statute, and that the power of deciding on the claims, is left entirely to the collector. As to the power of the Secretary, or of the collector, to regulate the proof necessary, in relation to matters required by other statutes, in which no mode of proof is provided, I have no occasion to express my opinion.

The only oath, which it is alleged that the defendant, Taylor, took falsely, is the oath as to the agreement. And as the production of the agreement is one of the requirements of the statute of July 29th, 1813, while no oath regarding it is required by that act, the oath alleged to have been taken could not have been a legal one, and could not, therefore, be the ground of an indictment for perjury. For these reasons the defendant must be discharged.

SAME CASE ON APPEAL.

NICKERSON v. UNITED STATES.

[17 How. 204.]

In the Supreme Court of the United States, 1854.

Mr. Justice CURTIS delivered the opinion of the court.

This case comes before us upon a certificate of division of opinion

by the judges of the Circuit Court of the United States for the District of Massachusetts.

At the March term, 1854, of the District Court of the United States for the District of Massachusetts, Nickerson was indicted for the crime of perjury. The indictment charged, that in order to obtain the allowance of bounty money, on account of the employment of a vessel in the cod fishery, of which vessel he was the agent, he made oath before the collector of the District of Barnstable, where the vessel was enrolled and licensed, that a certain paper, produced by him to the collector, was the original agreement made with the fishermen employed on board the vessel during the fishing season then last past; that three-fourths of the crew so employed were citizens of the United States, or not subjects of any foreign prince or state; and that these statements were false, and known to the defendant to be so when he made the oath. Upon this indictment Nickerson was tried and acquitted.

At the May term, 1854, of the Circuit Court for the District of Massachusetts, Nickerson was again indicted, and to this last indictment pleaded specially his former acquittal, and the plea was demurred to.

The question raised by this demurrer, and upon which the opinions of the judges were opposed, is, whether the same evidence, which is competent and essential to support the indictment in the Circuit Court, might have been admitted in support of the former indictment in the District Court.

The demurrer admits that the defendant is the same person charged by the former indictment, and that the oath alleged in the former indictment to have been taken, is the same oath alleged in this indictment. It appears from a comparison of the two indictments that the same occasion of taking the oath is alleged in both; that occasion being to obtain an allowance of money from the United States as bounty, on account of the employment of a vessel called The Silver Spring, in the cod fishery, during the season then last past.

Each indictment contains, substantially, the same allegation respecting the authority of the collector to administer the oath; that allegation being that the collector had competent power and authority to administer the same. Under the nineteenth section of the crimes' act of April 30, 1790,1 this averment would let in any legal evidence of the lawful power of the collector to administer the oath.

The false swearing alleged in each indictment is the same, and the only question is, whether the indictment in the District Court was so drawn as to preclude the United States from offering evidence to prove that the defendant knowingly and willfully swore falsely that the paper

1 1 Stats. at Large, 116.

produced was the original agreement, and that three-fourths of the crew were citizens.

The argument is that the former indictment, by its terms, limited the government to proof of false swearing in an oath required to be taken by the act of July 29, 1813;1 that this act does not require either the verity of the agreement with the crew, or the citizenship of three-fourths of the crew, to be sworn to; and consequently that neither of the perjuries charged could be proved under the former indictment.

The seventh section of the act of 1813 is as follows: "That the owner or owners of every fishing vessel of twenty tons and upwards, his or their 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 fishermen employed on board such vessel, as is hereinbefore required, and also a certificate to be by him or them subscribed, thereon 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 or they shall swear or affirm before the collector aforesaid."

It is argued that this requires an oath to the truth of the certificate only, and not to the verity of the agreement.

This depends upon the meaning of the relative pronoun "which.” Does it refer to and include both papers to be produced to the collector, or only one of them? It may refer only to the one last mentioned, or to both. Grammatically it is capable of either construction.

Considering the nature of the act, the objects which Congress had in view, and the mischiefs to be guarded against, we are of opinion that it was intended to require an oath to the verity of both papers.

This section of the law is not penal; it is directory merely. It requires certain acts to be done in order to obtain an allowance of public money, The nature of the act, therefore, does not require a strict interpretation, rigidly confined to what is so clearly expressed as to admit of no doubt. It calls for such an interpretation as will guard the public treasury from fraud, so far as the language employed by Congress, when properly construed, is capable of doing so.

The inducement to the payment of these bounties was the public policy of training a body of native seamen by an industrious pursuit of the cod fishery during a fixed portion of the year. To accomplish this, it was deemed important that the seamen should participate directly in the profits of the voyage, in the manner pointed out by the act of June 19, 1813.2 And accordingly, the eighth section of the act

13 Stats. at Large, 49.

23 Stats. at Large, 2.