
    The State vs. M’Croskey.
    It is necessary to constitute the crime of perjury that the false oath should have been talren ina judicial proceeding, or in some other public proceeding in like nature, and. that the person, who received the oath, should have had competent authority to receive it.
    
      la this State arbitrators even appointed by the court, have no authority to administer an oath ; and u person cannot be indicted for taking a false oath before them.
    Without an act of the Legislature, it seems, the courts cannot legally authorize any. persons to take an oath before them.
    Indictment for Perjury.
    Tried before his Honor dudge Gaillard. '
    The perjury assigned was in an oath taken before arbitrators,’appointed by rule of court,' and administered by them. The offence is thus charged “ The jurors &c. present, that, heretofore,’to-wit at March Term 1824, in the court of common pleas, held at Pendleton court-house, in and for the dis-tri,cí ofPendletsn, a certain cause, wherein John D. M’Cros-key was plaintiff, and Enoch B- Benson, sheriff of Pendle-ton District aforesaid, was defendant, which before that time had been commenced fee. was then and there pending and to be tried, between the said parties. And thereupon, by consent of all parties, an order and rule of court was then and there made, amongst other things in substance and to the effect following, that is to say, that the said cause be referred to arbitration, and that Robert H. Briggs choose the arbitrators. And the said Robert H. Briggs prior to the arbitration hereinafter mentioned, ehosed and appointed as arbitrators, to hear and determine the cause aforesaid, the following twelve persons Sic. (naming them.) And that af-terwards to-wit on the seventh day of August 1824, the said arbitrators, so chosen as aforesaid, met and took upon themselves the burthen of the said arbitration, to-wit at &c. And that upon'the said arbitrátión certain questions then and there arose, and it became and was material &c. And that Margaret M’Croskey then and there appeared in her proper person before the said arbitrators, they then and there having competent authority to administer an oath in that behalf, and was then and there duly sworn before them &c. and being so sworn was then and there examined and interrogated upon her oath aforesaid, by and before the said arbitrators, touching the matters in dispute and the questions in difference as aforesaid.” • The indictment proceed to charge, that the said Margaret M’Croskey “ upon hqr examination before the arbitrators aforesaid, the said arbitrators then and there having competent authority to administer, to her the oath in that behalf, did wilfully, falsely and corruptly swear fee.” and sets out the oath, assigns the perjury, and concludes in the usual form. ;
    The defendants counsel demurred to the indictment on two grounds.
    1st. That arbitrators have not such' a judicial authority as the right to administer as oath.
    
      2nd. That no other person having competent authority is charged in the indictment to have administered the oath, ,
    His Honour sustained the demurrer', and decided that the indictment was insufficient.
    The solicitor now moved the court of Appeals to reverse the decision of the presiding, judge.
   . Johnson J.

The grounds of this motion accords to . the prosecution the existence of all the facts necessary to the consummation of the crime of perjury, except the competency of the arbitrators, as such, to administer the path to the de fendant. ■

■It is of the very essence of the crime that the false oath should have been taken in a judicial proceeding, or some other proceedingin like nature, and that the person by wkoyi it is administered should have competent authority to receive it.. (5 Jacob. L. D. 135. Tit. Perjury. 2. Chitty. Crim. Law 304. Tit. Perjury.)

In genera], any judicial tribunal, or any person instructed with the administration of justice, are competent to administer oaths in relation to matters within their cognizance. Such for instance are the superior and inferior courts of law and equity, courts .of limited jurisdiction, magistrates &c. (Haw. P. C. Book 1. ch. 69. p. 3.) And it has been held to extend to commissioners appointed by the king to enquire of forfeited estates,.whereby they are liable to be seized by the exchequer process. (Noy. 100.)

The conclusion to be drawn from these definitions, results I think, clearly in the deduction, that to entitle any one to-administer an oath he must be clothed with a species of judicial power. In" theory all judicial power is supposed to be lodged in the supreme authority of the State, and' so much of it as may be necessary to the well being of the community is delegated to the different tribunals and functionaries. Thus, in England, the king is said to be. the fountain of justice, and that through his courts be dispenses it to the subject. And it is one of the peculiar properties of this power that he,-to whom it is granted, cannot delegate it to another. — It follows, therefore, that judicial power cannot exist, unless it is derived from the supreme authority of the State.

In applying these principles to the case under consideration we are necessarily led to enquire from what source the powers of arbitrators are derived, and thence to conclude, whe»-ther they are judicial or not? They are, generally, when a case is referred by rule of court, nominated by the parties themselves, and in this particular case by a third person, with their consent, and, so far, it would seem, must derive their authority from the joint act of the parties and the sanction of the court and, neither, as has been before shown, could invest them with judicial authority. There is no act of the legislature authorising this mode of proceeding or recognizing the existance of such a tribunal, and in this State it owes its origin and countenance to the usages and practice of the courts.

But it is contended, in behalf of the motion, that notwithstanding the legislature has not by any express enactment, and that although neither the court nor the parties invest them with that character, j'et they derive it from the nature of their office and from the usage and' practice of the country.

In England, from whence our common law rules are derived, and which are imposed on us by the express enactment of the legislature, it was the practice of - the courts to have the witnesses who were to be examined before arbitrators sworn in open court. (Kyd on Awards 95.) From whence" it may be fairly deduced that the arbitrators had ¿tot the power to administer an Oath; and although it will riot be controverted that a long continued and inveterate usage would control and abrogate a rule established even by this authority, it may safely be denied that it does exist. My awn experience is, and such is believed to he the. usage, to procure the- attendance of a magistrate by whom the oath w administered- This argument must therefore fail.

The case of Chapman vs. Gillet (2 Conn. Rep. 40) and the case of Lyman & Westmore, referred to in that opinion, have been relied hn. The first of these Cases, it will be seen, involved, incidentally, the question, whether giving false evidence under an oath administered by a magistrate, before a church convened for the purpose of administering discipline amongst its members, constituted the crime of perjury, and chief justice Swijt rests his opinión entirely on the ground-of usage, both as to the judicial powers of that tribunal and the mode of administering the oath.

I have hot been able to find the case of Lyman vs. West more otherwise reported than by a reference to it in the pre ceding case, and it would appear, that that case involved the precise question under consideration, and in which' the dissenting judges in the case of Chapman vs. Gillet, [Edmond and Goddard,) admit that perjury may be assigned on a false oath taken before arbitrators. But they ' rest their assent exclusively on the ground, that the powers of the arbitrators are derived from the statutes of the State of Connecticut. • Both those cases therefore are reconcilable to the principles laid down. In the on.e, Usage Has consecrated the church as a sort of judicial tribunal, together with the mode of administering the oath, and the other derives its sanction from the enactments of the legislature, the supreme authority of the State.

It is urged, however, that to deny the power of arbitrators to administer an' oath would be destructive oí that convenient and salutary tribunal in aid of the administration of justice and in adjusting the disputes of individuals. 1 think, however, that the remedy is furnished by the case of Chapman vs. Gillet; if, as it is supposed, the usag-e is to administer an oath through the agency of a magistrate, on which I should be induced to think that perjury might be assigned, for the same reasons that it may in a variety of inStances tfrliere the act is ancilliary to • the administration’ of justice; as in an affidavit to hold to bail, to produce a con* tiny anee or the like.

Earle, Sol; for the motion.

Motion refused.

eontra.  