# United States v. Bailey (34 U.S. 238)

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## Dissenting Opinion

    McLean
United States Supreme Court
34 U.S. 238
United States 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.
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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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