in question provides that no vessel shall be entitled to bounty unless an agreement should be made with the fishermen in conformity with that act. The production of the agreement was therefore the production of a paper, as essential to the claim as the certificate of the times of the departure and return of the vessel; and the verity of the agreement is as essential to the justice and legality of the claim, and to the accomplishment of the ends designed by Congress, as the verity of the certificate. It is apparent also that the former, as well as the latter, may be false, and that the collector has no better means of knowledge of the truth or falsehood of the paper purporting to be the agreement, than he has of the truth or falsehood of the certificate. The mischiefs to be guarded against were therefore the same.

The case, therefore, is one where the law requires two documents to be produced to a public officer, to constitute a title to an allowance of public money. The verity of both is essential to the justice and legality of the claim. The officer has no means of testing the verity of either, except what is given by this law. Congress has considered it proper that an oath should be taken by the applicant. The question is, whether this security of an oath was intended to be confined to one of the documents. The language employed is capable of such a construction, but it is also capable of meaning that the security of an oath was to extend to both. In our judgment, the latter is to be deemed to have been intended by Congress; and we therefore hold that so much of the first indictment as charged that an oath as to the agreement was required by the act of 1813, was correct in point of law. But this does not dispose of the whole question; because there can be no pretense that the act of 1813 required an oath to the fact that three-fourths of the crew were citizens. In point of fact, there was no requirement on the subject of the citizenship of the crew when the act of 1813 was passed, nor until the act of March 1, 1817;1 and the argument on the part of the United States is, that as the former indictment was limited to an oath required to be taken by the act of 1813, the defendant could not be tried thereon for false swearing as to the citizenship of the crew. But we are of opinion that the former indictment was not thus limited. The particular allegation supposed to have that effect is as follows:

"Which said oath so taken by the said Nickerson, Jr., was required to be taken by the owner or agent of said fishing vessel, under and by virtue of an act of Congress of the United States of America, approved July 29, 1813, and re-enacted February 9, 1816,2 and in a matter and proceeding then and there required by law, in order to obtain the allowance aforesaid for said fishing vessel, it being then and there material

13 Stats, at Large, 351.

23 Stats. at Large, 254.

and required by the act aforesaid, and by force of the statutes of the said United States therein provided, in order to obtain said allowance of money, that the owner of said fishing vessel, or his agent or representative, previous to receiving such allowance, should swear as aforesaid to the truth of the aforesaid declarations."

The pleader here not only refers to the act of 1813, but also avers that the oath was taken, "and in a matter and proceeding then and there required by law, in order to obtain the allowance aforesaid for said fishing vessel." It is true, the whole allegation, if it is correctly copied in the record, is somewhat confused, but, according to any construction which we have been able to put upon it, it does not confine the requirement of the oath to the act of 1813 only.

It was not necessary to aver in the indictment what act or acts of Congress required the oath to be taken. The averment that it was taken by the owner or agent to obtain an allowance of bounty, and the description of the oath which was taken, and of its occasion, were the only matters of fact necessary to be alleged to show the materiality of the oath, and that it was an oath required by law. The court was bound to take judicial notice of the requirements of all acts of Congress respecting it. It was competent for the government, under these averments of facts, to rely on any act of Congress which required the oath to be taken, without referring to it.

This was not a question respecting the authority of the collector to administer the oath. That, as has already been observed, was correctly averred in both indictments, pursuant to the act of 1790. And under that general averment of competent authority, any laws and any fact constituting that authority might have been shown. The question here was, whether such an oath as is described in the indictment, being taken before a collector who had competent authority to administer it, for the purpose of obtaining an allowance of bounty money, was an oath which, if willfully false, would subject the defendant to be punished as for perjury. And we do not think this question was so narrowed by the passage above extracted from the former indictment, that evidence of an oath required or authorized by any other act besides that of 1813 could not be given under that indictment; and we order it to be certified accordingly.

Order. 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 Massachusetts, and on the point or question 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 the opinion of this court that the special plea pleaded by the defendant is a good plea in bar to the indictment; whereupon, it is now here ordered and adjudged by this court that it be so certified to the said Circuit Court.

PERJURY-OFFICER MUST HAVE AUTHORITY — EXTKA-JUDICIAL OATH.

UNITED STATES v. BABCOCK.

[4 McLean, 113.]

In the United States Circuit Court, Michigan, 1846.

1. To Make the Taking of a False Oath Perjury it must be required by law or by usage sanctioned by the law or by the government.

2. A Clerk of a Court can not make a usage of administering oaths so as to make a party guilty of perjury who should falsely take such an oath.

3. A Voluntary or Extra-judicial Oath is not perjury even if false.

MCLEAN, J. This is an indictment for perjury. The defendant is charged with having been duly summoned as a witness in the case of the United States v. John Allen, then pending in this court. That by his attendance he became entitled to five cents mileage in coming to and returning from the place of holding court. And the indictment charges, that in order to substantiate his claim against the United States for said mileage, and to procure payment therefor, he appeared before John Winder, clerk of this court, and then and there made his corporal oath, and answered to the question put to him by said clerk, that the distance from his place of abode to this court, was one hundred and seventy miles, whereas it was a much less distance, being ninety-two miles,

etc.

The indictment also charges that the defendant deceitfully and fraudulently, intending to defraud the United States by claiming and obtaining a larger amount of money than he was entitled to as a witness in the said cause, he did of his own wicked and corrupt mind, falsely swear as aforesaid in support of his said claim against the United States, etc. Other counts varied somewhat the charge, but not altering the allegations, substantially, as above stated.

There was a general demurrer filed to the indictment, on the ground that the indictment charges no offense against the laws of the United States.

In the thirteenth section of the act of Congress of the 3d of March, 1825, it is declared, "If any person, in any case, matter hearing, or 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 the taking of such oath or affirmation, knowingly and willfully swear or affirm falsely, every person so offending shall be deemed guilty of perjury, and shall, upon conviction thereof, be punished by fine, not exceeding two thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years."

The oath in this case, as charged in the indictment, was not taken under any law of the United States; and this is necessary to bring the charge within the above act. The courts of the United States have no criminal jurisdiction, except that which is given to them by the laws of the United States. They can not punish common-law offenses. In a criminal case, the defendant is entitled to a strict construction of the law under which he is arraigned, and he can not be punished unless he is clearly within the law.

But it is insisted that the offense comes under the third section of the act of the 1st of March, 1823. It reads, " 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 objection to this law is, that it refers, exclusively, to claims made against the United States, through one of the departments of the government. The first part of the section refers to the disbursements or expenditures of public money; the second, where an individual swears in support of any claim against the United States.

There can be little doubt that this section was intended to apply to the authentication of claims made to one of the departments. It is connected with the expenditures of public money, and was designed to protect the treasury from false oaths, in regard to such expenditures. But is the provision limited to such applications? May it not be held to embrace the present case?

The oath was not required to be administered by any law of the United States, nor any rule of the court. It was a usage introduced by the clerk, in ascertaining the mileage that witnesses were entitled to claim.

There can be no doubt that the clerk, in the presence of the court, or any other person acting under the sanction of the court, is authorized to administer oaths. It is the act of the court, in such a case, and not an act done by the authority of the individual who administered the

oath.

But where the clerk, out of court, in the ordinary performance of his duties, thinks proper to administer oaths, for his own convenience or security, which are not required by the law or an order of court, it is exceedingly doubtful whether such a swearing is within the above section.

The claim, in one sense, is against the United States, as the United States were a party to the suit, and the indictment avers that the claim was against them. But the oath was, substantially, only before the clerk, no record being made of it. The fact sworn to, conduced to fix the amount of compensation for traveling, as it established the distance on which mileage was allowed. Had the law required this oath to be taken, or had it been required by an order of court, we should have had great difficulty in saying it was not perjury or false swearing, within one of the above sections. If the taking of the oath may be called a usage, it is the usage of the clerk, and not of the court. And it seems to be more than doubtful, whether an officer of the court without any higher authority, should institute a usage which, to individuals, might be attended with consequences so serious.

An extra-judicial oath, lays no foundation for a prosecution of perjury. Indeed, the policy of multiplying oaths, is questioned by personsof the most enlarged experience. Make anything common, of this nature, and the solemnity which it would otherwise impart, is, measurably, lost. Custom-house oaths, in all countries, have become a proverb and a reproach, and tend but little to secure the public against frauds.

The clerk, by a rule of court, may be authorized to administer oaths. But in what cases? Surely not in all cases where he may deem expedient. In performing that duty, he must act under the authority of law, or under the orders of the court. He is a mere ministerial officer, and must, consequently, act under authority.

The indictment seems to be defective in not averring that the oath was willfully, knowingly, and corruptly taken, knowing it to be false, or words of the same import. If the affiant swore falsely, through ignorance as to the distance in this case, he was not guilty. We do not say that under either of the sections cited, the indictment must charge the offense with all the technical accuracy as in an indictment for perjury. But the averments must show that the defendant knew that he swore falsely, and that his motive was corrupt.

Upon the whole, the demurrer is sustained, and the defendant is discharged from custody.