—First, that it does not appear that the district judge who administered the oath, in connection with which the perjury is alleged to have been committed, had authority to swear the defendant.
I was a little troubled by that objection at the outset, the rule being so strict in the criminal law as to the elements of the crime, and particularly as to the authority of the officer administering the oath, the breach of which is alleged in the indictment. Upon full reflection, and the examination of such authorities as have been brought to my attention, I am perfectly satisfied that the judge had the power to administer the oath. The oath is incident to his judicial office. I do not mean that he could go into the street and administer oaths to everybody, and for all purposes and under all circumstances; but this was a matter of his own court—this was a matter touching the government of the United States, in which he is serving as a judge, and under which he is a judicial officer. Such oaths, according to my recollection, and, indeed, my knowledge, have been administered for the last 30 or 40 years, and I never knew an objection taken before in a case like this.
I think, upon the whole, the United States v. Bailey, 9 Peters, 238, which was referred to by Mr. District Attorney Richards, may be considered as conclusive upon the subject. At any rate, my judgment is that this exception is not well taken.
The other objection is that the indictment sets out that the defendant had failed to make returns as required by law, and that in swearing to these returns he swore, as charged in some of the counts of the indictment, to a certificate which was false—which he knew to be false; and it is charged in other counts of the indictment that in swearing to his returns he had sworn to a declaration, knowing that in so swearing he swore falsely.
Now, in the argument, it is shown, with great clearness, that there are a large number of instances defined by the laws of the United States in which declarations, specifically named as such, are required to be sworn to; and so there are
