The Act of Congress passed on 29 July, 1813, 3 Stat. 49, enacts
that the owner of every fishing vessel shall, previous to receiving
the allowance mentioned in the act, produce to the collector the
original agreement which may have been made with the fishermen, and
also a certified copy of the days of sailing and returning, to the
truth of which he shall swear before the collector.
These latter words include the first branch, as well as the
second branch of the sentence, so that the owner must not only
swear to the truth of the certificate, but also to the verity of
the agreement with the fishermen.
A person was indicted in the District Court of Massachusetts for
perjury, in swearing falsely to the agreement with the fishermen,
and in swearing falsely that three-fourths of the crew were
citizens of the United States. As the district judge held that the
act of Congress only required the owner to swear to the certificate
of sailing, and not to the agreement with the fishermen, the person
was acquitted.
Afterwards, when indicted in the circuit court, this person
pleaded his former acquittal. This was a good plea because the
evidence necessary to sustain the indictment with respect to the
fishermen's agreement might have been given by the United States in
the first trial.
With respect to the oath that three-fourths of the crew were
citizens of the United States, the act of 1813 did not require that
oath, but then the indictment did not purport to bring the offense
under that act, but referred to the statutes of the United States
generally.
In March, 1854, Nickerson was indicted for perjury by the grand
jury of the District Court of the United States for the District of
Massachusetts, which indictment was framed under the Act of July
29, 1813, ch. 35, §§ 7, 9; 3 Stat. 49; revived February
9, 1816, ch. 14, 3 Stat. 254.
By section 7:
"The owner of every fishing vessel of twenty tons and upwards,
his 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
Page 58 U. S. 205
fishermen employed on board such vessel, as is hereinbefore
required, and also a certificate, to be by him subscribed, therein
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 shall swear or
affirm before the collector aforesaid."
Section 9 then provides that
"Any person who shall make any false declaration in any oath or
affirmation required by this act, being duly convicted thereof,
shall be deemed guilty of willful and corrupt perjury, and shall be
punished accordingly."
At the trial on the indictment before the district court, the
offense set forth was making a false declaration, under oath before
the collector that the paper produced and sworn to by the defendant
was the original agreement.
The judge of the district court who tried the case held that
this oath to the original agreement with the fishermen was not
required by the Act of July 29, 1813, § 7, 3 Stat. 52. That
the relative which, in that section, applied to and was satisfied
by the oath to the certificate of the particular days on which such
vessel sailed and returned &c., and consequently, no false
declaration in any oath required by that act was set forth in the
indictment, the only oaths required by the act of 1813 being to the
days of sailing and returning, the time employed at sea, and the
size of the boat or vessel.
The United States attorney then offered to prove that this was a
false swearing, touching the expenditure of public money, under the
Act of March 1, 1823, § 3, 3 Stat. 770.
United
States v. Bailey, 9 Pet. 238.
But the judge held the evidence inadmissible, and the defendant
was acquitted.
In May, 1854, Nickerson was again indicted by the grand jurors
of the circuit court for the crime of perjury in swearing that the
fishermen's agreement produced was the original agreement, when in
fact it was not, and also in swearing that three-fourths of the
crew employed were citizens of the United States or persons not
subject to any foreign prince or state, whereas five out of nine
persons employed were subjects of Victoria, Queen of Great Britain
and Ireland.
Whereupon Nickerson put in a plea setting forth the former
indictment and acquittal.
The district attorney of the United States demurred to the plea,
and the judges differed in opinion whether the defendant's special
plea aforesaid be good in bar to this indictment, and the question
was certified to this Court.
Page 58 U. S. 208
MR. JUSTICE CURTIS delivered the opinion of the Court.
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
Page 58 U. S. 209
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 19th section of the
Crimes Act of April 30, 1790, 1 Stat. 116, 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 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, 3 Stat. 49, 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 7th 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.
Page 58 U. S. 210
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 fairly 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, 3 Stat. 2. And
accordingly, the 8th section of the act 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
Page 58 U. S. 211
of the citizenship of the crew when the act of 1813 was passed,
nor until the Act of March 1, 1817, 3 Stat. 351, 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 reenacted February 9, 1816,
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 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
Page 58 U. S. 212
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.
