[United States v. Wilson.] was, whether such a pardon ought to restrain the court from pronouncing judgment in the case before them, 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 *doubted whether the [*160 terms of the pardon could restrain the court from pronouncing the judgment of law on the conviction before them. 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 offence, excluding the less, necessarily comprehends the less, against its own express terms. We should feel not much difficulty on this statement of the question, but it is unnecessary to discuss or decide it. Whether the pardon reached the less offence 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 offence, or 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 offences 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 individual for whose benefit [*161 it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees [United States v. Wilson] 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 any thing 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 misdemeanours. 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." 162] The decisions on this point conform to these principles. Hawkins, b. 2, ch. 37, sect. 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 pardon." In sect. 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, sect. 64, "it will be error to allow a man the benefit of such a pardon unless it be pleaded." In sect. 65, he says, "he who pleads such a pardon must produce it sub fide 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, letter 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. [United States v. Wilson.] 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 p. 376, he says, it may also be pleaded in arrest of judgment." In p. 401, he says,, " a pardon by act of parliament is more beneficial than by the king's charter; for a [*163 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 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 offence 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. *THE UNITED STATES V. SAMUEL BRewster. Indictment founded on the eighteenth section of the act of congress, passed on the 15th day of April, 1816, entitled "act to incorporate the subscribers to the Bank of the United States." The indictment charged the defendant with uttering and forging "a counterfeit bill in imitation of a bill issued by the president," &c., of the bank. The forged paper was in these words and figures: (5) F 745 Cashier Bank of the United States, Pay to C. W. Earnest, or order, five dollars F 745 (5) Office of Discount and Deposit in Pittsburgh, the 10th day of Dec., 1829. J. CORREY, Cash. (Endorsed) Fairman, Draper, Underwood & Co. Pay the bearer, C. W. EARNEST. Held, that a genuine instrument, of which the forged and counterfeited instrument is an imitation, is not a bill issued by order of the president, &c., of the Bank of the United States, according to the true intent and meaning of the eighteenth section of the act incorporating the bank. ON a certificate of division of opinion from the circuit court of the United States for the eastern district of Pennsylvania. At the circuit court in October, 1832, an indictment was found against the defendant, containing two counts. The first, that on the 8th day of May, 1832, he unlawfully and feloniously did sell, utter and deliver a false, forged and counterfeited bill, in imitation of a bill issued by order of the president and directors of the bank of the United States, which said false, forged, and counterfeited bill, partly written and partly printed, is in the words and figures following, to wit: (5) F 745 Cashier Bank of the United States, Pay to C. W. Earnest, or order, five dollars Office of Discount and Deposit in Pittsburgh, the 10th day of Dec., 1829. J. CORREY, Cash. (Endorsed) Fairman, Draper, Underwood & Co. Pay the bearer, C. W. EARNEST *with intent to defraud the president, directors and company *165] of the Bank of the United States; he, the said Samuel Brewster, otherwise called Samuel B. Brewster, at the time he so sold, uttered and delivered the said false, forged and counterfeited bill as aforesaid, then and there well knowing the same to be false, forged and counterfeited, 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. The second count charged that the defendant did sell, utter and [United States v. Brewster.] deliver, and did cause to be sold, uttered and delivered, a false, forged and counterfeited note, in imitation of and purporting to be a note issued by order of the president and directors of the Bank of the United States, which said last mentioned false, forged and counterfeited note, partly written and partly printed, was in the words and figures following, to wit [describing it in the same form as in the first count] with intent to defraud the president, directors and company of the Bank of the United States; he, the said Samuel Brewster, otherwise called Samuel B. Brewster, at the time he so sold, uttered and delivered the said false, forged and counterfeited note as aforesaid, then and there well knowing the same to be false, forged and counterfeited, contrary to the form of the act of congress in such case made and provided, &c. To this indictment, the prisoner pleaded not guilty; and, upon the trial, the following question occurred, upon which the opinions of the judges of the circuit court were opposed. Whether the genuine instrument of which the said false, forged and counterfeited instrument is in imitation, is a bill issued by order of the president and directors of the said bank, according to the true intent and meaning of the eighteenth section of the act of congress, passed on the 16th day of April in the year of our Lord, 1816, entitled "an act to incorporate the subscribers of the Bank of the United States." And the said judges being so opposed in opinion upon the question aforesaid, the same was then and there, at the request of the district attorney for the United States, 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 their next session to be held thereafter, to be finally decided by the said supreme court; and the court being further of opinion that further proceedings [*166 could not be had in said cause without prejudice to the merits of the same cause, did order that the jury empannelled as aforesaid to try said cause, be discharged from giving any verdict therein. The case was presented to the consideration of the court by Mr. Taney, attorney-general. The defendant did not appear by counsel. Mr. Taney said: The indictment was found under the provisions of the act of April 10th, 1816, sect. 18, incorporating the Bank of the United States. The offence charged in the first count is selling "a counterfeit bill;" in the second count the offence alleged is selling "a counterfeit note." Under the provisions of the law the "note" or "bill" counterfeited, must be one issued "by order of the president and directors of the bank;" but this is not such a bill. It is drawn by the president and cashier of the branch bank of Pittsburgh on the mother bank at Philadelphia. The attorney-general submitted the case to the court, after stating |