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was arrested is not a lawful exercise of the police a false oath taken before a notary public in this power of the legislature, and it is in violation of State by an officer of a foreign corporation to a certhe provisions of the Constitution.

tificate required by the laws of a foreign State perOrder reversed, without costs, and relator jury under our laws? discharged.

In order to determine what is perjury under our All concurred.

laws recourse must be had to the statute. EliminatOrder reversed, without costs, and relator ing those provisions which are inapplicable to the discharged.

question, it reads:

"A person who swears that

ficate * * by him subscribed is true PERJURY.

on any occasion in which an oath is required by

law, or may lawfully be administered, and who on OATH BY Officer of FOREIGN CORPORATION TO

such * occasion willfully and knowingly CERTIFICATE REQUIRED BY LAWS OF FOREIGN

states in his certificate any material matter STATE.

to be true which he knows to be false is guilty of

perjury” (sec. 96, Penal Code). COURT OF GENERAL SESSIONS.

It is evident that the theory upon which the in(May, 1902.)

dictment was founded is that upon an occasion in

which an oath was required by law, or on which an THE PEOPLE v. Robert S. MARTIN and Harry oath was lawfully administered, the defendants VELTHUSEN.

swore falsely. On either or on both of these propoA false oath taken before a notary public in the sitions the indictment must rest, for it cannot find State of New York by an officer of a foreign cor

support in any of the other provisions of the statute.

When the statute makes use of the words poration to a certificate required by the laws of the State in which the corporation was organized, does quired by law,” does it mean the law of this State not constitute perjury under the laws of New York. exclusively, or does it mean any law, inclusive of Demurrer to indictment for perjury.

the laws of foreign States? And when it says “ law

fully administered," does it mean in pursuance of or De Lancey Nicoll, John D. Lindsay, Franklin under the authority of the laws of this State excluBien and Edward P. Coyne (of counsel), for sively, or of the laws of any foreign State? The defendants; William Travers Jerome, District Attor- determination of these questions necessarily depends ney; Thomas F. Byrne, Assistant District Attorney upon a clear understanding of the State as an entity, (of counsel), for the People.

the extent of its jurisdiction and its relation to other GOFF, R.— The indictment alleges (1) that the States; and, if from a brief examination of eledefendants were respectively president and secretary mentary principles correct premises be established, of the Delaware Surety Company, a corporation then the process of reasoning to a right conclusion duly organized under the laws of the State of will be facilitated. Delaware; (2) that the laws of that State required | The State is a political society organized by the such officers to make a sworn certificate of the common consent of the inhabitants of a certain teramount of the capital stock of the corporation which ritory for purposes of mutual protection and defense had been paid in in cash and file it with the Secre- and exercising whatever powers are necessary to tary of State; (3) that on the 15th day of May, 1901, that end (Cooley's Const. Lim., 1). Its jurisdiction in the county and State of New York, the defend- is coextensive with its territory, and in discharge of ants apeared before a notary public of that State and its legislative function it makes law which is operacounty and severally swore to a certificate that tive only within its own boundaries (2 Burlamaqui, $1,000,000 of the capital stock has been paid in in | 32). A law is a rule of conduct prescribed by the cash, and caused the certificate to be filed with the lawmaking power in the State (1 Kent's Com., 447), Secretary of the State of Delaware, in pursuance of and the term law is confined to enactments of the the laws of that State; and (4) that the defendants in Legislature of the State (Matter of Burchard, 27 swearing to such certificate committed perjury. Hun, 436). When the Legislature speaks in general

On the principle that a demurrer admits the facts terms of the laws, or of things authorized by law, that are well pleaded, it may be assumed: First, the expression must be understood as having excluthat the Delaware Surety Company was a foreign sive reference to the laws of this State (People v. corporation; secondly, that the laws of the State Sturdevant, 23 Wend., 420). of Delaware required the making and filing of such An attribute of a State is sovereignty; its law, as sworn certificate; thirdly, that the laws of the State a general rule, is supreme within its territory, but it of New York did not require the making and filing has no exterritorial force, nor has the law of a of such certificate; fourthly, that the oaths were foreign State any force within its territory (Hall taken in the State of New York before a duly quali- | Inst. Law, 4th ed., sec. 10; Rose v. Himely, 4 fied notary public, and fifthly, that the oaths were Cranch, U. S., 241). This rule is subject to false.

modification when applied to a State of the United These facts, there.ore, present this question: Is States and the Federal Union. There a dual system of sovereignty prevails and the laws of a State are the statute ($ 96, ibid), it will read: On any occanever considered foreign in the federal courts, and, sion in which an oath is required by the law of the vice versa, the federal laws are never considered State or may be administered in pursuance of or foreign in the State courts (United States v. Turner, under the authority of the law of the State. A 11 How. U. S., 663). But in the relations between construction in conflict with this rule would be the different States they are, for general purposes, hostile to the theory of the foundation of the State treated as foreign to each other, and the laws of one and destructive of its sovereignty. State are considered as foreign to another (Hanley The test, therefore, is, were the acts of the dev. Donoghue, 116 U. S., 1; Buckner v. Finley, 2 fendants in swearing falsely to the certificate acts Peters, U. S., 586; Kentucky v. Dennison, 24 110w. forbidden by the law of this State? A false oath U. S., 66). “A law is foreign when it is enacted by may not of itself be perjury. To make it perjury it a sovereignty politically distinct and territorially must have been taken in a judicial or other proseparate from that which gives force and sanction to ceeding authorized by law, or on an occasion when the lex.fori. It is, therefore, ex vi termini, foreign, an oath was required by law, or must have been outside the territorial limits of the sovereignty administered in pursuance of or by authority of which forms its source and ceases to have any law. The oath upon which the perjury is predivalidity ex proprio vigore" (2 Story, Con. of Laws cated was not taken in a judicial or other proceed[8th ed.], $ 20).

ing authorized by law, nor on an occasion when an “ It is a principle of universal application, recog- oath was required by, nor was it administered in nized in all civilized States, that the statutes of one pursuance of or under authority of, law. The oath State have ex proprio vigore no force or effect in to the certificate was not required by the law of another” (Marshall v. Sherman, 148 N. Y., 9). the State of New York, therefore it was not re

It therefore may be accepted as fundamental that quired by law; and since it was not required by law, laws are territorial in their application and have no and there was no authority of law for its adminisexterritorial force; that all persons are subject to tration, it was not lawfully administered. That the the laws of the State in which they are, and, as a law of the State of Delaware required such sworn corollary, that no person is subjecr to the laws of certificate relating to the affairs of a corporation a 'State in which he is not.

which was its own creation is of no concern to our In the exercise of its powers the State prohibits State, and no obligation rests upon our State to the commission of certain acts within its bound-enforce the law of a foreign State relating to the aries, and, if committed, it declares them to be affairs of a foreign corporation. crimes. A crime is essentially local, and is the Nor does the mere fact that the oath was admincreature of the law which defines or prohibits it. istered by a duly authorized notary public of the It is an offense against the sovereignty, and can be State of New York give it validity. All oaths adtaken notice of and punished only by the sover- ministered by a notary are not per se valid any more eignty offended. The indictment against the de- than all false oaths are perjuries. For instance, an fendants is in the name of The People of the State oath of title to property, of financial condition, for of New York. They prosecute for a crime com- the purpose of obtaining credit, of the value of mitted against their law, not for a crime committed merchandise, or of the qualities of animals, these against the law of a foreign State. Their law is and many oaths in like matters may be administered entitled “The Penal Code of the State of New by a notary, but that does not make them the subYork” (§ 1, Penal Code), and an act or omis- jects of perjury if false. A notary has not unlimited sion forbidden by that law is declared to be a powers to administer oaths and by the mere act of crime ($ 3, ibid). Therefore, if a crime has been his officiating make that perjury which is not decommitted against the people of the State of New clared by law to be perjury. If such were the rule, York, it must have been an act or omission forbid- every falsehood, even on the most trivial matters, den by their law. That law ($ 96, ibid) declares if expressed in the form of an oath before a notary that a false oath taken on any occasion in which public, would be a perjury (State v. McCarthy, 41 an oath is required by law, or may lawfully be ad- Minn., 59). Two things must concur to validate an ministered, is perjury,” and as a consequence an oath before perjury can be assigned. The oath must oath taken on an occasion in which it is not re- be required or authorized by law, and the officer quired by law, or where it is not lawfully adminis- before whom it is taken must be duly qualified to tered, if false, is not perjury. Manifestly the mean- administer it. If either essential be absent, there ing of the words “law and “lawfully,” as used cannot be perjury. The courts of our State will not in the statute, is the hinge upon which the question take judicial notice of the law of the State of Delaturns, and, in ascertaining that meaning, both words ware, which provides that

a notary public shall may be considered as one, for “lawfully" flows have authority in any case in which an oath or from, and means in pursuance of, or according to, affirmation is necessary or proper to administer law. It is, in my opinion, well established by prin- such oath or affirmation” (Hanley v. Donoghue, ciple and authority that where the term “law” is supra). But, even if the laws of the State of Delaused in a penal statute it refers to the laws of the ware conferred upon a notary of the State of New State; and, applying this rule of construction to / York power to administer oaths in matters con

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cerning its polity or the affairs of its citizens, that It is urged by the people that New York, being would not alter his status under the law of New a great commercial centre, a large number of forYork, nor make a law for New York that had not eign corporations are located or doing business been enacted by its own Legislature. He would, there, that the laws of the foreign incorporating in such case, derive his power from the State of States require the officers of such corporations to Delaware, and in its exercise would, to all intents make sworn reports or certificates of their financial and purposes, be a notary public of the State of condition, and that if such can be falsely made with Delaware, precisely as if he were a commissioner | impunity, great fraud and injustice are likely to appointed by and for that State.

follow. Section 85 of the Executive Law of this State Each State is the architect of its own structure provides that a notary public has authority. 1. of laws. In the granting of charters to corporaAnywhere within the State * to exercise tions and in regulating their affairs it may be liberal such powers and duties as * by the laws or exacting; but whatever its laws may be, their of any other government, State or country, may be execution depends upon itself. No other State is performed by notaries. 2. In the county in and obliged to execute them or to judicially notice for which he shall have been appointed to admin- them. If the officers of a foreign corporation, for ister oaths and affirmations." This law simply de- convenience or profit, see fit to transact corporate clares that a notary public may, within this State, business in this commercial centre, and if, in doing do any of those things which are recognized as so, they fail to comply with or violate the laws of notarial acts by the law of nations and commercial the State that created the corporation and control usage, such as the authentication of instruments to its existence, it is the dignity of that State that is be used in evidence, or the acknowledgment of offended and not the dignity of the State of New deeds of conveyance, or the protest of notes or York. The responsibility rests with each State not bills of exchange. But while authority is conferred only to maintain its dignity but to protect its citiupon the notary by the law of this State to do cer- zens from fraud, and if it fails in this regard by the tain acts, effect or credit are given to those acts enactment and enforcement of appropriate laws, it by foreign States, and he, by virtue of his office in cannot look to another State to do so. Recognithis State, is commissioned by them to perform tion of and ample provision for the contingency such acts. But the fact that as attributes of his suggested is made by the State of New York when office he is enabled to protest notes or bills of ex- it ordains, by subdivision 5 of section 16 of the change, or to take acknowledgments to deeds, or Penal Code, that a person is liable to punishment to administer oaths, does not mean that every oath within the State * * * who, being out of this he administers is required by law. An oath may be State, and with intent to cause within it a result lawfully administered in the sense that it is not an contrary to the laws of this State, does an act unlawful act, or that it is in legal form, or admin- which, in its natural and usual course, results in an istered under a general power, but it is not lawfully act or effect contrary to its laws; " and further, by administered within the meaning of the statute de- section 676, ibid, that A person who commits an fining perjury unless it be in pursuance of or re

act without this State which affects persons or quired by law. In other words, a voluntary or property within this State, or the public health, gratuitous oath cannot be made the subject of morals or decency of this State, and which, if comPerjury.

mitted within this State, would be a crime, is punBecause the law of this State requires a similar ishable as if the act were committed within this certificate from the officers of domestic corpora- State." tions, it does not follow that it requires such cer- When the law of the State of Delaware required tificate from the officers of a foreign corporation. the defendants, as officers of a corporation which it For failure to make and file such certificate by the had created, to make sworn certificate as to the officers of a domestic corporation certain penalties payment of its capital stock, it must be presumed attach in this State, but for a like failure on the that it intended such certificate to be truthful. If part of the officers of a foreign corporation this the one that has been inade is false, then the law of State does not inipose penalties. The making and the State of Delaware has been iolated, and it is filing of a certificate is a duty enjoined by law, but none the less a violation that the certificate was the law of the State of New York does not require sworil to beyond its boundaries. The remedy or the officers of the Delaware Surety Company to punishment, if any, rests exclusively with the State make and file a certificate. Then how can the cer- of Delaware. Even if it be conceded that the city of tificate which they made be one required by law? New York, because of its commercial importance, If the officers of the Delaware Surety Company is a financial clearing house for the whole country, failed to make a certificate, would they be liable to it does not follow that the State of New York is a any penalties for failure to comply with the law of legal clearing house for the enforcement of the the State of New York? Manifestly not. Now, I laws of all the States and Territories of the Union. since the making of any certificate was not required To sustain their contention, the People cite as by our law, low can they be held guilty of perjury / authorities the following cases: In Stewart v. for inaking a false one?

State (22 Ohio, 447) it was held that indictment would lie for a subornation of perjury committed not for the violation of the laws of Spain, but for before a commissioner appointed to take testimony the violation of the laws of our State, which declare in Ohio for use in an action pending in Indiana. it forgery to engrave a plate in form or similitude The report of the case does not disclose whether of a note issued by a bank under the laws of any or not the taking of the testimony by the commis- foreign government or country (8 511, Penal Code). sioner was in pursuance of the law of Ohio, but at In Chapman v. Gillet (2 Conn., 40), the perjury all events, the question determined was the cor- was predicated on an oath administered by a jusrectness of the charge of the trial judge that the tice of the peace in an inquiry by a church associacourt of Indiana had acquired jurisdiction of the tion into the conduct of its members. The court action irrespective of preliminary proof of the resi- held that the oath was lawfully administered, say. dence of the parties, and, therefore, the oath was ing: “None will say that it is unlawful or improper not extra-judicial. State v. Whittemore (50 N. H., to administer an oath before an ecclesiastical tri245) sustained a conviction for perjury committed bunal.” It is not necessary to express dissent from in a State court in a proceeding for naturalization or adhesion to the doctrine of this case. It is suffiunder the laws of the United States. The laws of cient to point out the fact that as an authority it is the United States authorized the State courts to against the People, for it recognizes the church asnaturalize citizens, and, while the State court was sociation as an ecclesiastical court, with power to not bound to do so, yet it voluntarily assumed the administer oaths, and therefore, the oath was taken function, and held false swearing in such a pro- in a judicial proceeding (1 Hawk. Pl. C., 430). ceeding to be perjury. From the language of the In Reg v. Proud (10 Cox, C. C., 455), an appren, decision it is difficult to determine the exact ground tice was indicted for perjury in giving false testiupon which it rests, except it be the broad ground mony in a proceeding against his former master for of expediency which may be found in this expres- neglecting to pay his wages. It was objected that sion of the court: “ False swearing in a State court, since there was no provision of law authorizing the is allowed to go unpunished, has a tendency to im- administration of an oath to an apprentice after the pair the general usefulness of the tribunal and the expiration of his term, the oath was not “lawfully dignity of the State."

administered," and, consequently, perjury could not A similar question arose in the case of People v. be assigned. The Court of Criminal Appeal overSweetman (3 Park Cr. R., 358), where it was ruled the objection, and held that the oath was squarely held that, in a proceeding for naturaliza- “ lawfully administered,” inasmuch as the magistion under the laws of the United States, conducted trate had general jurisdiction over the matter of in a State court by the authority of the United the complaint. States, false swearing was not perjury against the In Comm. v. Smith (11 Allen, Mass., 243) a comlaws of the State. These two cases are in direct missioner was appointed by the State of New York conflict, and in so far as either may be applicable to take testimony in the State of Massachusetts to by parity of reasoning to the case at bar, the New be used in a case pending in the courts of New York case must control.

York. The defendant was convicted of subornation In People v. Flanders (18 Johnson, N. Y., 164), ) of perjury in a deposition before such commisthe defendant was convicted of forgery of a deed sioner. It was urged on appeal that perjury could in this State of lands situate in Missouri, and the not be committed before the commissioner for the question was whether a crime was committed by reason that the proceeding was in the courts of forgery in this State of a deed of conveyance of New York, that his authority to administer oaths lands without the State. The opinion of the court, was derived from that State and not from the State by Spencer, Chief Justice, is conclusive against the of Massachusetts, and, consequently, he had no case being an authority for the People, where he power to administer oaths under the laws of the says: How, then, can it be material where the latter State. The conviction was upheld on the lands lie if the act of forgery and the existence of ground that the law of Massachusetts provided for the fraudulent intention both concur and happen the taking of depositions to be used in a cause pendwithin the State?”

ing in another State before a commissioner apIt is plain that the act of forgery was in violation pointed under the authority of the State in which of the law of this State, which declared that a false the suit was pending. The commissioner, while writing with intent to defraud was a crime. The acting for New York, had authority under the law distinction between the principle of this case and of Massachusetts to administer the oath, and it the contention of the People is easily perceived was, therefore, administered pursuant to the law of when it is remembered that a false writing with | Massachusetts (Gen. Stats., chap. 131, $ 38). irtent to defraud is ipso facto a crime, whereas In none of these cases is there an adjudication false swearing is not a crime unless it be expressly upon the point under discussion, nor in principle is made so by law.

the reasoning of the People sustained. In People, etc., v. D'Argincourt (95 N. Y., 629) In People v. Sturdevant (supra), approved in the defendant was indicted for forgery of an en- Charles v. People (1 N. Y., 180), the defendant sold graved plate or note which purported to be issued tickets in a lottery authorized by the law of Delaby a bank in Havana, Cuba. The prosecution was He was indicted for violating the law of this

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State, which prohibited all lotteries except those State of New York was not an oath required by "authorized by law.” He contended that the lot. law in the sense and meaning of the statute; that, tery of the State of Delaware was authorized by not being in pursuance of or authorized by the law.” The court held that the words "authorized law of the State of New York, it was not lawfully by law” meant the law of the State of New York, administered, and, consequently, perjury could not saying:

be committed. “ We have nothing to do with the laws of other The demurrer is allowed. gover:ments

To hold that the word law' or 'laws, as used in our statute book, includes any other laws than such as are in force in SIR FREDERICK POLLOCK ON MARTIAL

LAW. this State would lead to endless confusion."

In Com. v. Dana (2 Metcalf, Mass., 329) the de fendant was indicted for having in his possession

The following letter, headed “What is Martial tickets in a lottery not authorized by law.” In

Law ? ” appeared in a recent issue of the London

Times : defense he offered to prove that the lottery was authorized by the laws of Rhode Island. În ap- Sir.— Being unable to agree completely with any proving the rejection of the offer the Supreme of the explanation hitherto offered on this obscure Court said:

subject, I beg leave to state in my own way some “ The question depends on the meaning of the conclusions which seem to me, in the dearth of posiwords 'not authorized by law,' in respect to which tive authority, fairly probable. They have been priwe cannot entertain a doubt. By the word “law,' vately submitted to competent persons, who received as we think, the Legislature intended to refer to the them with some favor. municipal law of this Commonwealth.

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I. laws of Rhode Island, or any other State, have no In the first place, I think it is undisputed that the force in this State."

martial law" of the earlier books, down to the end In People v. Travis (4 Park Cr. R., 213) the de- of the seventeenth century, if not later, is what we fendant was indicted for perjury assigned on a false now call military law, the rules for the governance oath to a protest taken before a notary public, in a of armies in the field and other persons within their case of a marine loss, and it was held that there lines or included in the region of their active operacould be no perjury, since there was no law requir- tions. It has never been denied that the Crown — ing the oath or authorizing the notary to admin- that is, in fact, the military commanding officer ister it; that it was purely voluntary and extra- can enforce military discipline and the laws of war judicial.

when the King's troops are engaged in a foreign In State v. McCarthy (supra) the defendant was campaign, or that the crown can make rules for that indicted for perjury in having sworn falsely before purpose without need of any statutory authority. a justice of the peace in an application for a loan; Any such rules, so far as applicable to persons not and it was held that perjury could not be assigned, British subjects, whether friends or enemies, ought since the oath was not required or authorized by of course to be consistent with the law of nations and some law. Discussing this case the People contend with the recognized usages of war. But this does that when the court used the words “ some law” it not concern us just now. The written law of the meant any law. But that is not sound, for the opin- Mutiny Act and the King's Regulations was introion discussed section 87 of the Penal Code of the duced to provide for discipline in time of peace at State of Minnesota, and its conclusions were home; but in modern practice it is found sufficient in clearly drawn from its provisions, so that when it war, and is treated as being the whole internal law of used the words “ some law” it clearly meant some the British army, both at home and on active service. law of Minnesota. In State v. Pike (15 N. H., 83) It is difficult to imagine any case in which it would it was held that false swearing before a State court be necessary to deal under military law proper with in bankruptcy proceedings under the Federal stat- a British subject (or person owing temporary alute could not be prosecuted as perjury in the State legiance) who was neither a person bound by the court. In State v. Adams (4 Blackford, Ind., 146) provisions of the Army Act nor a rebel. If such a it was held that the State courts had no jurisdiction case could occur it might perhaps be necessary to of perjury committed in an affidavit made under an rely on the general prerogative of the crown in time act of congress relative to the sale of public lands. of war. The principle pervading all these cases is a jealous On the other hand, it has been settled ever since regard for the laws of the local sovereignty, and a the Petition of Right that the crown has no power by refusal, in the absence of special provision, to recog- the common law to administer military law within nize as of any force the law of a foreign State or the realm in time of peace. Indeed, Sir Thomas country.

Smith — no anti-royalist, but Queen Elizabeth's amOn principle, supported by uniform authority in bassador and secretary of state was of that opinion this State and by the preponderance of authority in as early as 1565, when he wrote The Commonwealth other States, I am of opinion that the oath to the of England, in a passage which seems to have escaped certificate not being required by the law of the recent writers :

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