to discharge him, and I can only therefore now dismiss the petition. Ex parte Carson,* 4 Hughes, 215.

§ 3217. Under act of 1833.- A petition to remove a criminal case from a state to a federal court must be filed under section 7 of the act of March 2, 1833; section 3 of said act applies to civil cases. Ibid.

§ 3218. Cases within section 641.-Section 641 of the Revised Statutes, which provides for the removal to the federal courts of causes commenced in state courts against a person who is denied or cannot enforce any of the rights secured by the act, has reference to a denial of the right to equal protection by the law, or impediments to its enforcement arising from state law, regulation, or custom. It is only when some such hostile state legislation can be shown to exist, interfering with a party's right of defense, that a man can have his cause removed to the federal court. Allegations in the petition for removal, of manipulation of the law in such a manner as to secure a jury inimical to the petitioners, and of the exist ence of a general prejudice in the minds of the court, the jurors, the officials and the people of the state, are not within the purview of the statute authorizing such removal. Ex parte Wells,* 3 Woods, 128.

§ 3219. Power of state court. Where a petition for the removal of a criminal prosecution to a federal court is presented to a state court it has a right to pass upon the sufficiency of the petition. "But if a proper application is refused a removal may be compelled by the federal court by virtue of its superior jurisdiction in such cases. To accomplish such purpose it may issue a certiorari or a writ of habeas corpus cum causa.

Ibid.

$3220. Power of congress.- Congress has the constitutional power to provide for the renoval from state courts into the courts of the United States for trial there, criminal prosecutions commenced in the state courts, against persons executing the revenue laws of the United States, for acts done under color of those laws, or on account of rights claimed by such persons under those laws, and to prohibit the state courts from proceeding further with the prosecution after the prescribed step3 for removal have been taken. Findley v. Satterfield,* 3 Woods, 501.

§ 3221. United States officers.- Where an officer executing in a lawful manner a law of the United States meets with resistance, and, to overcome that resistance, uses necessary force, and, for such use of force, is charged with a crime against the state, the case is one arising under the laws of the United States, and it may be removed to the federal courts. Ibid.

§ 3222. As to time of removal.— A criminal prosecution is commenced when the warrant is issued. And under section 643 of the Revised Statutes, providing for the removal to the circuit court of the United States of prosecutions commenced in a state court against the revenue officers of the United States for offenses committed in the execution of their duties as such officers, the case may be removed before indictment and as soon as the warrant is issued by the committing magistrate of the state. State of Georgia v. Bolton,* 11 Fed. R., 217. §3223. Laws constitutional.— The statute which permits actions, whether civil or criminal, against all persons acting under the revenue laws of the United States, to be removed from the state to the federal courts upon application of the defendant, is valid and constitutional. Tennessee v. Davis, 10 Otto, 261 (CONST., §§ 2473-2500).

§3224. Congress has the same power to authorize the removal from the state to the federal courts, when a federal question is involved, in criminal as in civil cases. To authorize such removal is no invasion of the state's sovereignty. Ibid.

§ 3225. Procedure in federal court.- In case of a removal of a criminal case from the state to the federal courts, the procedure on the trial is that of the state courts so far as it is applicable. Ibid.

§3226. Petition held sufficient. A person indicted for murder in a state court presented a petition to the circuit court of the United States for that district, setting up that no murder was actually committed, and that the homicide was committed by him in self-defense while he was performing his duty as a revenue officer of the United States. Held, that the petition showed sufficient cause for the removal of the case from the state to the federal court under the statutes of the United States. Ibid.

ş 3227. Local prejudice against a colored person by reason of his race and color, although alleged to be so great that he cannot have a fair trial in the state courts, is not a sufficient ground under the civil rights act for removing a criminal action from the state to the federal court. State of Texas v. Gaines,* 2 Woods, 342.

§ 3228. Citizenship or alienage.- A criminal case cannot be removed from a state court to a federal court, under the act of March 3, 1875, on account of citizenship or alienage. New Hampshire v. Grand Trunk R'y,* 3 Fed. R., 887.

§ 3229. Right to trial by a mixed jury.— The equal protection of the laws guarantied to all the citizens of a state by the fourteenth amendment can only be had in criminal cases

through juries composed of the same persons, and constituted in the same mode, for each and every class of citizens. So where the laws of a state provide for mixed juries, white and colored, in all cases, a denial to a negro of his right to a trial by a mixed jury is a denial of a right guarantied by such amendment, and presents a good cause for the removal of the case to the federal circuit court of the same district. Ex parte Reynolds, 3 Hughes, 571.

§ 3230. Two negroes being indicted for the murder of a white man in Virginia petitioned the state court in which their trial was pending to so modify the venire, which was composed entirely of white men, that one-third thereof should be composed of colored men. The court denied the motion on the ground that it had no authority to change the venire, as it appeared to the satisfaction of the court that it had been drawn from the jury-box according to law. Thereupon before trial the defendants moved to have the case transmitted to the federal circuit court. The petition stated the facts above shown; also, that negroes were by the laws of the state, liable to jury service; that a strong prejudice existed against them among the white race in the county where they were tried, both on account of their race, and of their killing a white man; that no colored man had been allowed to serve on a jury in that county; and that the right secured to the petitioners by the law providing for the equal civil rights of the citizens of the United States was denied them, because they could not obtain an impartial trial by a jury exclusively of white men. The petition was denied, and the trial proceeded with. Held, that section 641, R. S., providing for the removal to the federal courts of causes commenced in any state court against a person who is denied, or cannot enforce in such court, any right secured by the laws of the United States, has no applicability to judicial infractions of a person's rights during trial, but to infractions of such rights by state laws; that judicial infractions are to be remedied by the revisory powers of superior courts, and as the removal provided for by section 641 is before trial or final hearing, it is obvious that such an infraction can furnish no ground for a removal before trial, because, at that time, no one can tell whether or not such an infraction will be committed on the trial; and, therefore, that the petition in the case was insufficient, and did not present a case under the section in question. Virginia v. Rives, 10 Otto, 314 (CONST., §§ 929–940). See, also, Neal v. Delaware, 13 Otto, 396 (CONST., §§ 963–974).

SUMMARY

XXXIV. PARDON.

·Must be brought to the attention of the court, & 3231.- Delivery necessary, § 3232.— Effect of a pardon, § 3233. — Power to release penalties and forfeitures, § 3231.— Conditioned that the party should not claim proceeds of property sold, § 3235. — Conditional, § 3236.-Discharge on habeas corpus, $ 3237.- Re-arrest and commitment, § 3238. — Proclamation of December 8, 1863, § 3239.— Construction of proclamations of pardon, § 3240.— Cannot be held void because accepted under duress, § 3241.-Judicial notice, § 3242.— Granted on supposition of guilt, § 3243. — Limited to offense specified, § 3244.

§ 3231. A pardon, to avail the defendant in a criminal trial, must be brought judicially before the court by a plea, motion or otherwise. United States v. Wilson, $3 3245-47.

§3232. A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. Ibid. See § 3291.

§ 3233. The pardon of an offense necessarily carries with it the release of the penalty at tached to its commission, so far as such release is in the power of the government, unless it is specially restricted by exceptions embraced in the instrument itself. It is of the very essence of a pardon that it releases the offender from the consequences of his offenses. The rights of third parties which have become vested by proceedings to establish the culpability of the accused, taken before the pardon was granted, cannot be impaired by it. The govern ment having parted with its power over such rights they necessarily remain as they existed prior to the grant of the pardon. But unless rights of others in the property condemned have accrued, the penalty of the forfeiture annexed to the commission of the offense must fall with the pardon of the offense itself, provided the full operation of the pardon is not restrained by the conditions upon which it was granted. Osborn v. United States, §§ 3248-51. See $3312.

$ 3234. The constitutional grant to the president of the power to pardon offenses carries with it, as an incident, the power to release penalties and forfeitures which accrue from the offenses. Ibid. See § 3275.

3235. A pardon was granted on condition that the offender should not claim any property, or the proceeds of any property, which had been sold by the order, judgment or decree of a court under the confiscation laws of congress. Certain bonds belonging to the offender had been seized, and some of them had been paid voluntarily to officers of the court, and

some had been collected by selling the securities, but the bonds had none of them been sold. Held, that the condition did not prevent the recovery of the proceeds of the bonds. Ibid. $ 3236. The president has constitutional power to grant a conditional pardon to a convicted murderer, sentenced to be hung, offering to change that punishment to imprisonment for life; and if such a pardon is accepted by the convict, it is binding upon him, and he cannot claim to be released upon a writ of habeas corpus, on the ground that the condition is void and the pardon absolute. (MCLEAN, J., dissented.) Ex parte Wells, $ 3252-56. See § 3296. $3237. A prisoner in custody under a valid conviction and sentence may be discharged on habeas corpus on production of a pardon. Greathouse's Case, §§ 3257-62.

§323. A court does not become funcius officio in a case by passing sentence. The prisoner is detained in custody by virtue of its sentence, and it seems that where he has been discharged on a conditional pardon he may be re-arrested and remanded by the court in execution of the original sentence: Ibid.

§ 3239. The proclamation of amnesty by the president of December 8, 1863, embraced those convicted of offenses mentioned therein previous to its date. Ibid. See § 3339.

§ 3240. It is the duty of a court to construe a proclamation of pardon like any other public act or law, and to apply to it the well settled rules of construction irrespective of any opinion or even knowledge of the private but unexpressed intention of its author. Ibid.

§ 3241. A prisoner accepting a cond tional pardon while in confinement cannot be said so to have accepted it under duress that such acceptance is void. Ibid.

$242. A court will take judicial notice of a proclamation of pardon and amnesty. Ibid. § 3243. All pardons, except in cases of illegal convictions, etc., proceed upon the hypothesis of the legal guilt of the person pardoned. If he be not guilty it is presumed that he will be acquitted, and he has no need of pardon. The pardon is granted on considerations which satisfy the executive that, in the particular case, the offender, though guilty, should be pardoned. Ibid.

§ 3244. Where a pardon recites a distinct and specific offense, its effect is to be limited thereto, and does not embrace any other offense for which separate penalties and punishments are provided. So a pardon for conspiracy against the government to defraud the revenue does not embrace a forfeiture of property seized for violation of the revenue laws. Ex parte Weimer, § 3263.

NOTES.-See §§ 3264-3363.]

UNITED STATES v. WILSON.

(7 Peters, 150-163. 1833.)

CERTIFICATE OF DIVISION from U. S. Circuit Court, Eastern District of Pennsylvania.

Opinion by MARSHALL, C. J.

STATEMENT OF FACTS.-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 the motion was adjourned till 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 mide 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 pardon referred to, answered that he had nothing to say, and that h 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 cannot 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 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 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 offense, 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 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, 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

parlons 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.

§ 3245. Pardon defined. Judicial notice.

A pardon is an act of grace, proceeding from the power intrusted 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 f 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 prin ciples, 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.

§ 3246. A pardon is not complete until accepted.

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 par-} don 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 t be brought "judicially before the court by plea, motion or otherwise."

§ 3247. — and must be brought to the attention of the court by plea or

motion.

The decisions on this point conform to these principles. Hawkins, b. 2, c. 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 pardon." In section 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 bo 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, section 64, it will be error to allow a man the benefit of such a pardon unless it be pleaded." In section 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