The defendant was indicted for robbing the mail of the United
States, and putting the life of the driver in jeopardy, and the
conviction and judgment pronounced upon it extended to both
offenses. After this judgment no prosecution could be maintained
for the same offense, or for any part of it, provided the former
conviction was pleaded.
The power of pardon in criminal cases had been exercised from
time immemorial by the executive of that nation whose language is
our language, and to whose judicial institutions ours bear a close
resemblance. We adopt their principles respecting the operation and
effect of a pardon, and look into their books for the rules
prescribing the manner in which it is to be used by the person who
would avail himself of it. A pardon is an act of grace, proceeding
from the power entrusted with the execution of the laws, which
exempts the individual on whom it is bestowed from the punishment
the law inflicts for a crime he has committed. It is the private
though official act of the executive magistrate, delivered to the
individual for whose benefit it is intended and not communicated
officially to the court.
It is a constituent part of the judicial system that the judge
sees only with judicial eyes, and knows nothing respecting any
particular case of which he is not informed judicially. A private
deed not communicated to him, whatever may be its character,
whether a pardon or release, is totally unknown and cannot
be acted upon. The looseness which would be introduced into
judicial proceedings would prove fatal to the great principles of
justice if the judge might notice and act upon facts not brought
regularly into the cause. Such a proceeding, in ordinary cases,
would subvert the best established principles and would overturn
those rules which have been settled by the wisdom of ages.
There is nothing peculiar in a pardon which ought to distinguish
it in this respect from other facts; no legal principle known to
the court will sustain such a distinction. A pardon is a deed to
the validity of which delivery is essential, and delivery is not
complete without acceptance. It may then be rejected by the person
to whom it is tendered, and if it be rejected, we have discovered
no power in a court to force it on him.
It may be supposed that no being condemned to death would reject
a pardon, but the rule must be the same in capital cases and in
misdemeanors. A pardon may be conditional, and the condition may be
more objectionable than the punishment inflicted by the
judgment.
The pardon may possibly apply to a different person or a
different crime. It may be absolute or conditional. It may be
controverted by the prosecutor, and must be expounded by the court.
These circumstances
Page 32 U. S. 151
combine to show that this, like any other deed, ought to be
brought "judicially before the court, by plea, motion or
otherwise."
The reason why a court must,
ex officio, take notice of
a pardon by act of Parliament is that it is considered as a public
law, having the same effect on the case as if the general law
punishing the offense had been repealed or annulled.
At the April sessions, 1830, of the Circuit Court of the United
States for the Eastern District of Pennsylvania, six indictments
were presented to and found by the grand jury against James Porter
and George Wilson, one for obstructing the mail of the United
States from Philadelphia to Kimberton on 26 November, 1829; one for
obstructing the mail from Philadelphia to Reading, on 6 December,
1829; one for the robbery of the Kimberton mail and putting the
life of the carrier in jeopardy on the same day in November, 1829;
one for robbery of the Reading mail and putting the life of the
carrier in jeopardy on the same 6 December, 1829; one for robbery
of the Kimberton mail, also on 26 November, 1829; and one for
robbery of the Reading mail, also on 6 December, 1829. At the same
sessions, two other indictments were presented to the grand jury
against the same defendants in which they were severally charged
with robbery of the Reading and Kimberton mail and wounding the
carrier, which were returned to the court as "true bills, except as
to wounding the carrier." Upon the indictment for robbery of the
Kimberton mail and putting the life of the carrier in jeopardy, and
also in the two last-mentioned indictments, a
nolle
prosequi was afterwards entered by the district attorney of
the United States. On 26 April, 1830, the defendants, James Porter
and George Wilson, pleaded not guilty to the several bills upon
which they were arraigned, and on 1 May a verdict of guilty was
rendered against them upon the indictment for robbery of the
Reading mail and putting the life of the carrier in jeopardy. The
circuit court, on 27 May, 1830, sentenced the defendants to suffer
death, on 2 July following, and James Porter was executed in
pursuance of this sentence.
Upon the 27th of May 1830, George Wilson withdrew the
Page 32 U. S. 152
pleas of not guilty to all the indictments against him except
those on which a
nolle prosequi was afterwards entered,
and pleaded guilty to the same.
The indictment for robbery of the Reading mail and putting the
life of the driver in jeopardy, upon which James Porter and George
Wilson were tried and convicted, was in the following terms:
"Eastern District of Pennsylvania, to-wit:"
"The grand inquest of the United States of America, inquiring
for the Eastern District of Pennsylvania, upon their oaths and
affirmations, respectively, do present that James Porter, otherwise
called James May, late of the Eastern District aforesaid, yeoman,
and George Wilson, late of the Eastern District aforesaid, yeoman
on 6 December in the year of our Lord 1829, at the Eastern District
aforesaid and within the jurisdiction of this Court, with force and
arms, in and upon one Samuel McCrea, in the peace of God and of the
United States of America then and there being, and then and there
being a carrier of the mail of the United States, and then and
there entrusted therewith, and then and there proceeding with the
said mail, from the City of Philadelphia to the Borough of Reading,
feloniously did make an assault, and him the said Samuel McCrea in
bodily fear and danger, then and there, feloniously did put, and
the said mail of the United States from him the said Samuel McCrea,
then and there, feloniously, violently, and against his will, did
steal, take, and carry away, contrary to the form of the act of
Congress in such case made and provided and against the peace and
dignity of the United States of America."
"And the inquest aforesaid, upon their oaths and affirmations
aforesaid, do further present that the said James Porter, otherwise
called James May, and the said George Wilson, afterwards, to-wit,
on the same day and year aforesaid, at the Eastern District
aforesaid and within the jurisdiction of this Court, with force and
arms in and upon the said Samuel McCrea, then and there being a
carrier of the mail of the United States and then and there
entrusted therewith, feloniously did make an assault, and him, the
said carrier of the said mail, then and there, feloniously,
violently, and against his will, did rob, contrary to the form of
the act of Congress in such case
Page 32 U. S. 153
made and provided, and against the peace and dignity of the
United States of America."
On 14 June, 1830, the President of the United States granted the
following pardon to George Wilson:
"Andrew Jackson, President of the United States, to all who
shall see these presents, greeting:"
"Whereas a certain George Wilson has been convicted before the
Circuit Court of the United States for the Eastern District of
Pennsylvania of the crime of robbing the mail of the United States,
and has been sentenced by the said court to suffer the penalty of
death on 2 July next, and whereas the said George Wilson has been
recommended as a fit subject for the exercise of executive clemency
by a numerous and respectable body of petitioners, praying for him
a remission of the sentence of death, inasmuch as, in such a case,
sentence of imprisonment for twenty years may yet be pronounced
against him on the indictments to which he has pleaded guilty in
the circuit court of the United States for the said district, and a
still more severe imprisonment may be awarded him for the same acts
in the criminal courts of Pennsylvania, now therefore, I, Andrew
Jackson, President of the United States of America, in
consideration of the premises, divers other good and sufficient
reasons me thereunto moving, have pardoned and do hereby pardon the
said George Wilson the crime for which he has been sentenced to
suffer death, remitting the penalty aforesaid, with this express
stipulation, that this pardon shall not extend to any judgment
which may be had or obtained against him in any other case or cases
now pending before said court for other offenses wherewith he may
stand charged."
"In testimony whereof I have hereunto set my hand and caused the
seal of the United States to be affixed to these presents. Given at
the City of Washington this 14 June, A.D. 1830, and of the
independence of the United States the fifty-fourth."
"[L.S.] ANDREW JACKSON"
"By the President: M. VAN BUREN, Secretary of State "
Page 32 U. S. 154
The record, as certified from the circuit court, proceeded to
state:
"And now, to-wit, this 20 October, A.D. 1830, the district
attorney of the United States moves the court for sentence upon the
defendant, George Wilson; but the court suggesting the propriety of
inquiring as to the effect of a certain pardon, understood to have
been granted by the President of the United States to the defendant
since the conviction on this indictment, although alleged to relate
to a conviction on another indictment, the case postponed till 21
October, 1830. And now, to-wit, this 21 October, 1830, the counsel
for the defendant, George Wilson, appear before the court and on
behalf of the said defendant, waive and decline any advantage or
protection which might be supposed to arise from the pardon
referred to, and thereupon the following questions or points were
argued by the district attorney of the United States upon which the
opinions of the judges of the said circuit court were opposed:"
"1. That the pardon referred to (prout the same) is expressly
restricted to the sentence of death passed upon the defendant,
under another conviction, and as expressly reserves from its
operation the conviction now before the court."
"2. That the prisoner can, under this conviction, derive no
advantage from the pardon without bringing the same judicially
before the court by plea, motion, or otherwise."
"And now, to-wit, this 21 October, 1830, the defendant, George
Wilson, being in person before the court, was asked by the court
whether he had anything to say why sentence should not be
pronounced for the crime whereof he stands convicted in this
particular case, and whether he wished in any manner to avail
himself of the pardon referred to, and the said defendant answered
in person that he had nothing to say and that he did not wish in
any manner to avail himself, in order to avoid sentence in this
particular case, of the pardon referred to. And the said judges
being so opposed in opinion upon the points or questions above
stated, the same were then and there, at the request of the
district attorney of the United States,
Page 32 U. S. 155
stated, under the direction of the judges, and ordered by the
court to be certified, under the seal of the court, to the Supreme
Court at its next session thereafter, to be finally decided by the
said Supreme Court. And the court being further of opinion that
other proceedings could not be had in the said case without
prejudice to its merits, did order the same to be continued over to
the next sessions of the court."
"HENRY BALDWIN"
"JOS. HOPKINSON"
Page 32 U. S. 158
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
In this case, the grand jury had found an indictment against the
prisoner for robbing the mail, to which he had pleaded not guilty.
Afterwards he withdrew this plea and pleaded guilty. On a motion by
the district attorney at a subsequent day for judgment, the court
suggested the propriety of inquiring as to the effect of a certain
pardon, understood to have been granted by the President of the
United States to the defendant since the conviction on this
indictment, alleged to relate to a conviction on another
indictment, and that motion was adjourned until the next day. On
the succeeding day, the counsel for the prisoner appeared in court
and on his behalf waived and declined any advantage or protection
which might be supposed to arise from the pardon referred to, and
thereupon the following points were made by the district
attorney:
1. That the pardon referred to, is expressly restricted to the
sentence of death passed upon the defendant under another
conviction, and as expressly reserves from its operation the
conviction now before the court.
2. That the prisoner can, under this conviction, derive no
advantage from the pardon without bringing the same judicially
before the court.
The prisoner being asked by the court whether he had anything to
say, why sentence should not be pronounced for the crime whereof he
stood convicted in this particular case and whether he wished in
any manner to avail himself of the
Page 32 U. S. 159
pardon referred to, answered, that he had nothing to say and
that he did not wish in any manner to avail himself, in order to
avoid the sentence in this particular case, of the pardon referred
to. The judges were thereupon, divided in opinion on both points
made by the district attorney, and ordered them to be certified to
this Court.
A certiorari was afterwards awarded to bring up the record of
the case in which judgment of death had been pronounced against the
prisoner. The indictment charges a robbery of the mail and putting
the life of the driver in jeopardy. The robbery charged in each
indictment is on the same day, at the same place, and on the same
carrier. We do not think that this record is admissible, since no
direct reference is made to it in the points adjourned by the
circuit court, and without its aid, we can readily comprehend the
questions submitted to us.
If this difficulty be removed, another is presented by the terms
in which the first point is stated on the record. The attorney
argued first that the pardon referred to is expressly restricted to
the sentence of death passed upon the defendant under another
conviction, and as expressly reserves from its operation the
conviction now before the court. Upon this point, the judges were
opposed in opinion. Whether they were opposed on the fact or on the
inference drawn from it by the attorney, and what that inference
was, the record does not explicitly inform us. If the question on
which the judges doubted was whether such a pardon ought to
restrain the court from pronouncing judgment in the case before it,
which was expressly excluded from it, the first inquiry is whether
the robbery charged in the one indictment is the same with that
charged in the other. This is neither expressly affirmed nor
denied. If the convictions be for different robberies, no question
of law can arise on the effect which the pardon of the one may have
on the proceedings for the others.
If the statement on the record be sufficient to inform this
Court judicially that the robberies are the same, we are not told
on what point of law the judges were divided. The only inference we
can draw from the statement is that it was
Page 32 U. S. 160
doubted whether the terms of the pardon could restrain the court
from pronouncing the judgment of law on the conviction before it.
The prisoner was convicted of robbing the mail and putting the life
of the carrier in jeopardy, for which the punishment is death. He
had also been convicted on an indictment for the same robbery, as
we now suppose, without putting life in jeopardy, for which the
punishment is fine and imprisonment, and the question supposed to
be submitted is whether a pardon of the greater offense, excluding
the less, necessarily comprehends the less against its own express
terms. We should not feel much difficulty on this statement of the
question, but it is unnecessary to discuss or decide it. Whether
the pardon reached the less offense or not, the first indictment
comprehended both the robbery and the putting life in jeopardy, and
the conviction and judgment pronounced upon it extended to both.
After the judgment, no subsequent prosecution could be maintained
for the same offense nor for any part of it, provided the former
conviction was pleaded. Whether it could avail without being
pleaded or in any manner relied on by the prisoner is substantially
the same question with that presented in the second point, which
is
"that the prisoner can, under this conviction, derive no
advantage from the pardon without bringing the same judicially
before the court by plea, motion, or otherwise."
The Constitution gives to the President, in general terms, "the
power to grant reprieves and pardons for offenses against the
United States." As this power had been exercised from time
immemorial by the executive of that nation whose language is our
language, and to whose judicial institutions ours bear a close
resemblance, we adopt their principles respecting the operation and
effect of a pardon, and look into their books for the rules
prescribing the manner in which it is to be used by the person who
would avail himself of it.
A pardon is an act of grace, proceeding from the power entrusted
with the execution of the laws, which exempts the individual on
whom it is bestowed from the punishment the law inflicts for a
crime he has committed. It is the private, though official, act of
the executive magistrate, delivered to the
Page 32 U. S. 161
individual for whose benefit it is intended, and not
communicated officially to the court. It is a constituent part of
the judicial system that the judge sees only with judicial eyes,
and knows nothing respecting any particular case of which he is not
informed judicially. A private deed, not communicated to him,
whatever may be its character, whether a pardon or release, is
totally unknown and cannot be acted on. The looseness which would
be introduced into judicial proceedings would prove fatal to the
great principles of justice if the judge might notice and act upon
facts not brought regularly into the cause. Such a proceeding, in
ordinary cases, would subvert the best established principles and
overturn those rules which have been settled by the wisdom of
ages.
Is there anything peculiar in a pardon which ought to
distinguish it in this respect from other facts? We know of no
legal principle which will sustain such a distinction. A pardon is
a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance. It may then be
rejected by the person to whom it is tendered, and if it be
rejected, we have discovered no power in a court to force it on
him. It may be supposed that no being condemned to death would
reject a pardon, but the rule must be the same in capital cases and
in misdemeanors. A pardon may be conditional, and the condition may
be more objectionable than the punishment inflicted by the
judgment. The pardon may possibly apply to a different person or a
different crime. It may be absolute or conditional. It may be
controverted by the prosecutor, and must be expounded by the court.
These circumstances combine to show that this, like any other deed,
ought to be brought "judicially before the court by plea, motion,
or otherwise." The decisions on this point conform to these
principles. Hawkins, b. 2, ch. 37, § 59, says,
"but it is certain that a man may waive the benefit of a pardon
under the great seal, as where one who hath such a pardon doth not
plead it, but takes the general issue, after which he shall not
resort to the
Page 32 U. S. 162
pardon."
In § 67, he says "an exception is made of a pardon after
plea." Notwithstanding this general assertion, a court would
undoubtedly at this day permit a pardon to be used after the
general issue. Still, where the benefit is to be obtained through
the agency of the court, it must be brought regularly to the notice
of that tribunal.
Hawkins says, § 64, "it will be error to allow a man the
benefit of such a pardon unless it be pleaded." In § 65 he
says
"He who pleads such a pardon must produce it
sub pede
sigilli, though it be a plea in bar, because it is presumed to
be in his custody, and the property of it belongs to him."
Comyn, in his Digest, tit. Pardon, H, says, "if a man has a
charter of pardon from the King, he ought to plead it in bar of the
indictment, and if he pleads not guilty, he waives his pardon." The
same law is laid down in Bacon's Abridgment title Pardon, and is
confirmed by the cases these authors quote.
We have met with only one case which might seem to question it.
Jenkins, page 169, case 62, says
"If the King pardons a felon and it is shown to the court, and
yet the felon pleads guilty and waives the pardon, he shall not be
hanged, for it is the King's will that he shall not, and the King
has an interest in the life of his subject. The books to the
contrary are to be understood where the charter of pardon is not
shown to the court."
This vague
dictum supposes the pardon to be shown to
the court. The waiver spoken of is probably that implied waiver
which arises from pleading the general issue, and the case may be
considered as determining nothing more than that the prisoner may
avail himself of the pardon, by showing it to the court, even after
waiving it, by pleading the general issue. If this be, and it most
probably is, the fair and sound construction of this case, it is
reconciled with all the other decisions so far as respects the
present inquiry.
Blackstone, in his 4th vol., p. 337, says, "a pardon may be
pleaded in bar." In 376, he says "it may also be pleaded in arrest
of judgment." In p. 401, he says,
"A pardon by act
Page 32 U. S. 163
of Parliament is more beneficial than by the King's charter, for
a man is not bound to plead it, but the court must,
ex
officio, take notice of it; neither can he lose the benefit of
it by his own laches or negligence, as he may of the King's charter
of pardon. The King's charter of pardon must be specially pleaded,
and that at a proper time, for if a man is indicted and has a
pardon in his pocket and afterwards puts himself upon his trial by
pleading the general issue, he has waived the benefit of such
pardon. But if a man avails himself thereof, as by course of law he
may, a pardon may either be pleaded on arraignment or in arrest of
judgment or, in the present stage of proceedings, in bar of
execution."
The reason why a court must
ex officio take notice of
pardon by act of Parliament is that it is considered as a public
law, having the same effect on the case as if the general law
punishing the offense had been repealed or annulled.
This Court is of opinion that the pardon in the proceedings
mentioned, not having been brought judicially before the court by
plea, motion, or otherwise, cannot be noticed by the judges.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Third Circuit
and Eastern District of Pennsylvania and on the question on which
the judges of that court were divided in opinion, and was argued by
the Attorney General on the part of the United States, on
consideration whereof this Court is of opinion that the pardon
alluded to in the proceedings, not having been brought judicially
before the court by plea, motion, or otherwise, ought not to be
noticed by the judges, or in any manner to affect the judgment of
the law. All which is directed and adjudged to be certified to the
judges of the said Circuit Court of the United States for the
Eastern District of Pennsylvania.
