prior to that time, when the appellants were not | complains that it was denied to the railroad parties to the suit, except through their trustee. company and to the judgment creditors. If such They did not intervene and become parties un- be the meaning of the decree, how can the aptil after the decree of Oct. 22 was made. Then pellants complain of it? To them it works no they were permitted to become parties SO far injury, and those who might complain have not as to prosecute, if they so elected, for the pro- appealed. Besides, if the other portions of the tection of their several interests therein, an ap- decree are correct, as we have endeavored to peal to the Supreme Court from the decree en- show, redemption by anybody is, to say the tered October 22, 1875." They asked for nothing least, extremely improbable, if not impossible. more. They prayed for no appeal from any We cannot avoid the conviction that this assignprior orders, and certainly they cannot be per- ment of error is not the assertion of a real grievmitted now to object to orders made prior to ance. that decree; orders from which they have not appealed. But if this was not so, it would be sufficient to say that the orders were not errone ous. They were within the rules we announced in Fosdick v. Schall, a case decided at this Term [ante, 339], and it is sufficient to refer to that case for their justification. The appellants further object that the 8th paragraph of the decree was erroneous. That paragraph is as follows: The appellants are the holders of about six per cent. of the first-mortgage bonds. They are endeavoring to overturn an arrangement agreed to by a large majority of the bondholders appointed by themselves to make an arrangement for the reorganization of the debtor company, an arrangement sanctioned by the court, which does not lessen their security or postpone them to any other bondholders, but which preserves to its fullest extent all the rights assured to them by the mortgage. They ought not to succeed without the most substantial reasons. We do not find such reasons in the record, and the decree of the circuit court is affirmed. "Eighth. That the right of the several parties to this suit claiming liens by judgment or otherwise upon the property of defendants, and of the several parties claiming rights or equities in and to said property, or any property in the use of said Railroad Company, or any part thereof, by virtue of contracts, or cases whereby material, labor or property has been furnished for or placed upon said defendant's road, shall not be affected by this decree, the same being taken subject to the rights and equities of said parties as the same may be estab-two or three other objections, only one of which, lished and declared hereafter by this court." This order relates to the effect of the decree, and not to the effect of a sale made under it, as the appellants seem to think. It reserves certain rights claimed for further adjudication. It cannot well be understood without reference to the nature of the claims and their condition when the decree was made. This appears in the report of the master, to which there was no exception in these particulars. The claims were judgments amounting in the aggregate to about $13,000, recovered against the railroad company for injuries to persons and property, and which were liens prior to the mortgages. From some of these, appeals had been taken. There were also judgments inferior to the liens of the three mortgages, and other judgments not claimed to be liens at all, and there was a floating debt. It was impossible to determine definitely the extent of the rights of these various claimants, when the sale was ordered, and no one could have been injured by reserving them for subsequent adjudication. This objection, therefore, has no weight. One other remains. The appellants assign for error that the decree is in one particular illegal, incongruous and contradictory, in this: that while in the first paragraph the right of redemption is barred as to the railroad company, the defendant, the second and third-mortgage bond holders, and the judgment creditors, it is given in the seventh paragraph to the second and third-mortgage bondholders, the general creditors and the stockholders of the defendant company, Thus apparently denying the right of redemption to the railroad company and to the judgment creditors." The assignment does not complain that a right of redemption was given to those to whom it was accorded. It rather Of the second appeal, that taken from the decree of August 31, 1877, confirming the master's report of the sale, little need be said. The errors assigned to it are substantially the same as those we have considered in the former case, and held to be insufficient to justify a reversal of the decree of October 22, 1875. There are however, requires any notice. The others are wholly without merit. It is objected that the decree and order required notice of the sale to be advertised in a newspaper printed in the City of New York, called The Financier, as well as in other newspapers; that the master did not advertise the sale in that newspaper, nor report his inability to find any such newspaper to this court, in which the former appeal was then pending and, therefore, did not comply with the order of the court. At the time when the sale was made there was no supersedeas in existence and, before the sale was advertised, it was represented and made to appear to the Circuit Judge that The Financier had been merged into The Public, or that its name had been changed to The Public. He therefore, on the 8th of January, 1877, ordered that the notice of sale be inserted in The Public with the same effect as if the name of the paper had not been changed, and he directed the order to be entered of record. The sale was thus accordingly advertised. Now, whether the Judge had authority to make such an order in a recess of the court, it is not worth the while to inquire for, if he had not, advertisement in The Public was a substantial compliance with the original order. If the name of Financier was merely changed, the identity of the newspaper remained, and the order was to advertise in that newspaper. And so if The Financier was merged into The Public, its subscribers and readers, to whom the advertisement was addressed and required to be addressed, were reached by it, as they would have been had there been no merger or change of name. The purpose of the order to advertise in that newspaper was publicity, and to reach those persons who saw the paper. That purpose was not defeated by a change of name or a union with another newspaper. This objection, therefore, is formal rather than substantial. The case requires nothing more. The decree in each case is affirmed. Dissenting, Mr. Justice Clifford, Mr. Justice Miller and Mr. Justice Harlan. NOTE.-See 93 U. S., XXIII., 936; 96 U. S., XXIV., Accomplices as witnesses-right to pardon-au 641. thority of district attorney. 1. Accomplices, though admitted as witnesses for the prosecution, are not of right entitled to a par JAMES H. ALVORD ET AL., Piffs. in Err., don, but have only an equitable right to a recom mendation to the executive clemency. 2. Prisoners, under such circumstances, cannot plead such right in bar of an indictment against them, nor avail themselves of it as a defense on their trial, though it may be made the ground of a motion for putting off their trial, in order to allow time for an application to the pardoning power. 3. The district attorney has no authority to make an agreement, that if a person charged with an offense would testify against his accomplices, he should be exempt from prosecution, and from certain assessments made against him. [Nos. 929, 930, 931, 932, 933, 934, 935, 975.] Argued Mar. 21, 24, 25, 1879. Decided Apr. 7, 1879. N ERROR to the Supreme Court of the Terri-ERR IN tory of Utah. Motion to re-instate cause dismissed under Rule 16. This case having been previously dismissed for lack of appearance on the part of the plaintiffs in error, when called, this motion is now made to re-instate. Messrs. Chas. G. Williams, J. W. Denver and 8. S. Fenn, for plaintiffs in error. Mr. Charles Devens, Atty-Gen., for defendant in error. Mr. Chief Justice Waite announced the judg ment of the court: This application comes directly within the rule laid down in Hurley v. Jones, decided at the last Term and not yet reported [97 U. S., 318, XXIV., 1008]. As we took occasion to say in that case," Our rules requiring causes to be ready for hearing when reached are and will continue to be rigidly enforced." We recognize no "pro forma" attorneys of record. Counsel who enter their appearance under the requirements of Rule 9 must understand that the court will hold them responsible for all that such an entry implies until they relieve themselves from the obligation they assume, by substitution or otherwise. The motion is denied. UNITED STATES, Plf. in err., V. BURTON M. FORD. ET AL. SAME. SAME; SAME v. ONE STILL AND OTHER PROPERTY, BURTON M. FORD ET AL. Claimants. SAME 0. FIFTY BARRELS OF DISTILLED SPIRITS, BURTON M. FORD ET AL. Claimants. SAME. THREE HUNDRED AND NINETEEN BARRELS OF WHISKY AND OTHER PROPERTY, JOSEPH ROELLE ET AL. Claim ants. SAME v. FOUR HUNDRED BARRELS OF DISTILLED SPIRITS, JOSEPH ROELLE ET AL. RROR to the Circuit Court of the United States for the Northern District of Illinois. The case is fully stated by the court. Mr. Charles Devens, Atty-Gen., for plaintiff in error: The alleged agreement, being without warrant of law, is void, and could not be made the foundation of any order or judgment of the court. The power to pardon and thereby grant immunity for the consequences of crime committed, is given by the Constitution to the President alone. The courts cannot exercise the power, or trench in any manner or to any extent upon this prerogative of the President. There cannot be immunity before pardon. The leading case on this subject is that reported in Rex v. Rudd, 1 Cowp., 331, also reported in 1 Leach. C. L., 115, and known as Rudd's Case. Lord Mansfield, said, Rex v. Rudd, 1 Cowp., 334: "It can only come before the court by way of application to put off the trial, in order to give the prisoner time to apply elsewhere." The doctrine of this case has been followed to this day both in England and in this country. Rex v. Garside, 2 Ad. & El., 266; Ex parte Wells, 18 How., 307 (59 U. S., XV., 421); U. S. v. Wilson, 7 Pet., 159; in People v. Whipple, 9 Cow., 707, it is said by Duer, Chief Justice, 9 Cow., 716, that the authority of the court extends no further than the recommendation to mercy. It must after all rest with the Executive, whether that recommendation be complied with or not. See, also, U. S. v. Lee, 4 McLean, 103. Messrs. Edward Jussen and Chas. H. Reed, for defendants in error: When an accomplice turns State's evidence, or becomes a witness for the Government in criminal or quasi criminal cases, he thereby beComes ipso facto entitled to full immunity from prosecution for any and all offenses to which he was a party with the accomplices against whom he testifies. U. S. v. Lee, 4 McLean, 103; 4 Bl. Com., 331; Rudd's Case, 1 Cowp., 336; People v. Whipple, 9 | Prompt steps were taken by the district attorCow., 707. ney to remove the cases into the circuit court, where the respective judgments rendered by the district court were affirmed. Suffice it to say in this connection, without It is lawful for the Government to accept an accomplice as a witness. If an accomplice is thus accepted, and testifies fully, fairly and truthfully, the law gives him an implied prom-entering into detail, that the United States sued ise of protection from prosecution or punishment for the offense concerning which he thus testifies. We are unable to find any reported case where such an agreement has been interposed as a defense and passed upon by the court. We suppose the reason why no such case can be found, is because no such agreement has ever been questioned. There are, however, two cases where this question was presented to some extent by insufficient pleas. See, Commonwealth v. Brown, 103 Mass., 422; Commonwealth v. Woodside, 105 Mass., 594. The plain inference from the decisions in those cases is, that the court would have decided such an express agreement a good defense. Mr. Justice Clifford delivered the opinion of the court: Accomplices in guilt, not previously convicted of an infamous crime, when separately tried are competent witnesses for or against each other; and the universal usage is that such a party, if called and examined by the public prosecutor on the trial of his associates in guilt, will not be prosecuted for the same offense, provided it appears that he acted in good faith and that he testified fully and fairly. Where the case is not within any statute, the general rule is that if an accomplice, when examined as a witness by the public prosecutor, discloses fully and fairly the guilt of himself and his associates, he will not be prosecuted for the offense disclosed; but it is equally clear that he cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial, for it is merely an equitable title to the mercy of the Executive, subject to the conditions before stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the Executive for that purpose. Rex v. Rudd, 1 Cowp., 332. Sufficient appears to show that the following are the material proceedings in the several cases: (1) That the first two were actions of debt commenced in the circuit court to recover the double internal revenue tax imposed, as fully set forth in the respective declarations. (2) That the other six cases are informations filed in the district court to forfeit the properties therein described for acts done in violation of the internal revenue laws. Service was made in the first two cases, and the defendants appeared and plead the general issue and the special plea set forth in the transcript. Issue was joined upon the first plea, and the United States demurred to the special plea. Hearing was had, and the court overruled the demurrer and gave judgment for the defendants. Like defenses in the form of answers or pleas were filed in the other six cases commenced in the district court, to which the United States demurred; but the district court overruled the demurrers, and finally rendered judgment in each case for the defendants. out a writ of error in each case and removed the same into this court. Both parties agree that the questions presented for decision are the same in each case, in which the court here fully concurs. Two errors are assigned as causes for reversing the judgment, which present very clearly the matters in controversy as discussed at the bar. (1) That the plea or answer set up as defense is bad because it is too general and does not set forth the supposed agreement in traversable form. When filed, the first assignment of error also objected to the plea or answer that it did not designate the officer who made the alleged agreement, which was plainly a valid objection to it; but that was obviated at the argument, it being conceded by the United States that the plea or answer should be understood as alleging that the supposed agreement was made by the district attorney. (2) That the plea or answer is bad because the officer representing the Government in these prosecutions had no authority to make the agreement pleaded, and that the court cannot enforce it, as it is void. As amended, it requires no argument to show that the plea or answer cannot be understood as alleging that the President was a party to any such agreement, as the distinct allegation is that it was made by the district attorney; nor could any such implication have arisen even if the pleading had not been amended, as it is settled law that suits of the kind to recover municipal forfeitures must be prosecuted in the subordinate courts by the district attorney, and in this court, when brought here by appeal or writ of error, by the Attorney-General. Confiscation Cases, 7 Wall., 454 [74 U. S., XIX.,196]. Suppose the plea to be amended as stipulated at the argument, the first question is, whether as amended it sets up a good defense to the several actions. Taken in that view, it alleges in substance and effect that the district attorney promised the defendants that if they would testify in behalf of the United States frankly and truthfully when required, in reference to a conspiracy among certain government officials in the internal revenue service, and other parties then known to exist, whereby the honest manufacture of distilled spirits and the collection of the tax thereon had been rendered practically impossible, and would plead guilty to one count in an indictment then pending against them in said district court, and would withdraw their pleas in certain condemnation cases then pending against their property in said district court, for the purpose only of insuring their good faith in so testifying on behalf of the United States, then the United States would recall any and all assessments under the internal revenue law made against them; and that no more assessments under said law should be made against them, that no more proceedings against them should be commenced on account of violations of the internal revenue laws then passed; and that no penalties or forfeitures should in any manner be enforced or recovered against them or their property; that all suits for penalties and for forfeitures then pending against them and their property should be dismissed, and that full and complete indemnity should be granted to them as the said claimants. was equivalent to indictment, as the appellee was equally required to answer to the charge; and if proved guilty, the judgment of the law was against him, and the approver, so called, was entitled to his pardon ex debito justitiæ. On the other hand, if the appellee was acquitted, the judgment was that the approver should be condemned. 4 Bl. Com., 330. Speaking upon that subject, Lord Mansfield said, more than a century ago, that there were three ways in the law and practice of that country in which an accomplice could be entitled to a pardon: First, in the case of approvement, which, as he stated, then still remained a part of the common law, though he admitted it had grown into disuse by long discontinuance. Second, by discovering two or more offenders, as Complete performance on their part is alleged by the claimants, and they allege that the pending suits are for the condemnation and confiscation of their property, which was seized by the United States on the ground of the alleged violation of the internal revenue law, prior to entering into the said agreement. Assessments made against the claimants or their property are to be recalled, and they and their property are to be free of internal revenue taxation. Proceedings pending against them for violations of the internal revenue laws are to be dismissed and no more are to be instituted, and the claim-required in the two Acts of Parliament to which ants are promised full and complete indemnity, civil and criminal, if they will consent to testify. Considering the scope and comprehensive character of the supposed agreement, it is not strange that the district attorney deemed it proper to demur to the plea. He took two objections to it; but the court will examine the second one first, as if that is sustained, the other will become immaterial. Waiving, for the present, the question whether the district attorney may contract with an accomplice of an accused person on trial, that if he will testify in the case his taxes shall be abated, or that he and his property shall be exempt from internal revenue taxation, the court will consider in the first place whether the district attorney, as a public prosecutor, may properly enter into an agreement with such an accomplice, that if he will testify fully and fairly in such a prosecution against his associate in guilt he shall not be prosecuted for the same of fense; and if so, whether such an agreement, if the witness performs on his part, will avail the witness as a defense to the criminal charge in case of a subsequent prosecution. Considered in its full scope, the agreement is that, in consideration of the defendants testifying against their co-conspirators who were in dicted for defrauding the revenue, they, the de fendants, should have a full and complete dis charge, not only from all criminal liability, but from all penalties and forfeitures they had incurred, and from liability for their internal revenue taxes which they had fraudulently refused to pay, giving them full and complete indemnity, civil and criminal, for all their fraudulent and illegal acts in respect to the public revenue. Courts of justice everywhere agree that the established usage is that an accomplice duly admitted as a witness in a criminal prosecution against his associates in guilt, if he testifies fully and fairly, will not be prosecuted for the same offense, and some of the decided cases and standard text writers give very satisfactory explana tions of the origin and scope of the usage in its ordinary application in actual practice. Beyond doubt, some of the elements of the usage had their origin in the ancient and obsolete practice called approvement, which may be briefly explained as follows: when a person indicted of treason or felony was arraigned, he might confess the charge before plea pleaded, and appeal, or accuse another as his accomplice of the same crime, in order to obtain his pardon. Such approvement was only allowed in capital offenses, and he referred. Third, persons embraced in some royal proclamation, as authorized by an Act of Parliament, to which he added, that in all these cases the court will bail the prisoner in order to give him an opportunity to apply for a pardon. Approvers, as well as those who disclosed two or more accomplices in guilt and those who came within the promise of a royal proclamation, were entitled to a pardon; and the same high authority states that besides those ancient statutory regulations there was another practice in respect to accomplices who were admitted as witnesses in criminal prosecutions against their associates, which he explains as follows: where the accomplice has made a full and fair confession of the whole truth and is admitted as a witness for the crown, the practice is, if he act fairly and openly and discover the whole truth, though he is not entitled of right to a pardon, yet the usage, the lenity, and the practice of the court is to stop the prosecution against the accomplice, the understanding being that he has an equitable title to a recommendation for the King's mercy. Subsequent remarks of the court in that opinion showed that the ancient statutes referred to were wholly inapplicable to the case, and that there remained even at that date only the equitable practice which gives a title to recommendation to the mercy of the Crown. Explanations then follow which prove that the practice referred to was adopted in substitution for the ancient doctrine of approvement, modified and modeled so as to be received with greater favor. As modified it gives, as the court said in that case, a kind of hope to the accomplice that if he behaves fairly and discloses the whole truth, he may, by a recommendation to mercy, save himself from punishment and secure a pardon, which shows to a demonstration that the protection, if any, to be given to the accomplice rests on the described usage and his own good behavior; for if he acts in bad faith, or fails to testify fully and fairly, he may still be prosecuted as if he had never been admitted as a witness. Rex v. Rudd, 1 Cowp., 332; S. C., 1 Leach, C. C.,115. Great inconvenience arose from the practice of approvement, in consequence of which a mode of proceeding was adopted in analogy to that law, by which an accomplice may be entitled to a recommendation to mercy but not to a pardon as of legal right, nor can he plead it in bar or avail himself of it on his trial. 2 Hawk. P. C., n. 3, p. 532; 3 Russ. Crimes, 9th Am. ed., 596. In the present practice, says Mr. Starkie, where accomplices make a full and fair confes- | pone the trial or any action in the case to the sion of the whole truth, and are in consequence prejudice of the prisoner, in order to give him admitted to give evidence for the Crown, if they an opportunity to apply to the Crown for mercy. afterwards give their testimony fairly and open- Rex v. Garside, 2 Ad. & Ell., 275; Rex v. Lee, ly, although they are not of right entitled to a Russ. & R., 361; Rex v. Brunton, Russ. & R., pardon, the usage, lenity and practice of the 454. court is to stay the prosecution against them and they have an equitable title to a recommendation to the King's mercy. 2 Stark. Ev., 4th Am. ed., 15. Participes criminis in such a case, when called and examined as witnesses for the prosecution, says Roscoe, have an equitable title to a recommendation for the royal mercy; but they cannot plead this in bar to an indictment against them, nor can they avail themselves of it as a defense on their trial, though it may be made the ground of a motion for putting off the trial in order to give the prisoner time to present an application for the executive clemency. Roscoe, Cr. Ev., 9th Am. ed., 597. Authorities of the highest character almost without number support that proposition, nor is it necessary to look beyond the decisions of this court to establish the correctness of the rule. Ex parte Wells, 18 How., 307 [59 U. S., XV., 421]. Other text writers of the highest repute, besides those previously mentioned, affirm the rule that accomplices, though admitted as witnesses for the prosecution, are not of right entitled to a pardon; that they have only an equitable right to a recommendation to the executive clemency; and they all hold that prisoners under such circumstances cannot plead such right in bar of an indictment against them, nor avail themselves of it as a defense on their trial. None of those propositions can be successfully controverted; but it is equally clear that the party, if he testifies fully and fairly, may make it the ground of a motion to put off the trial in order that he may apply to the executive for the protection which immemorial usage concedes that he is entitled to at the hands of the Executive. 3 Russ. Crimes, 9th Am. ed., 597. Certain ancient statutory regulations, as already remarked, gave unconditional promise to accomplices of pardon and complete exemption Special reference is made in that case to the from punishment, and in such cases it was althree ancient modes of practice which author- ways held that the accomplice, if he was called ized accomplices, when admitted as witnesses in and examined for the prosecution, was entitled criminal prosecutions, to claim a pardon as a as of right to a pardon, provided he acted in matter of right; and the court having explained good faith, and testified fully and fairly to the the course of such proceedings, remarked that, whole truth. Instances of the kind are adverted except in those cases, accomplices, though ad- to by Mr. Phillipps in his valuable treatise on mitted to testify for the prosecution, have no ab- Evidence; but he, like the preceding text writer, solute claim or legal right to executive clemency. states that accomplices, when admitted as witMuch consideration appears to have been nesses, under the more modern usage and pracgiven to the question in that case, and the court tice of the courts, have only an equitable title held that the only claim the accomplice has in to be recommended to mercy, on a strict and such a case is an equitable one for pardon, and ample performance, to the satisfaction of the that only upon the condition that he makes a presiding judge, of the conditions on which they full and fair disclosure of the guilt of himself were admitted to testify, that such an equitable and that of his associates, that he cannot plead title cannot be pleaded in bar nor in any manit in bar of an indictment against him for the ner be set up as a defense to an indictment chargoffense, nor use it in any way except to supporting them with the same offense, though it may a motion to put off the trial in order to give him time to apply for a pardon. be made the ground of a motion for putting off their trial in order to allow time for an application to the pardoning power. 1 Phil. Ev., ed., 1868, 86. Three quarters of a century before that, ten of the twelve Judges of England decided in the same way, holding that the accomplice in such Offenders of the kind are not admitted to a case cannot set up such a claim in bar to an testify as of course, and sufficient authority exindictment against him, nor avail himself of it ists for saying that in the practice of the Enupon his trial, that such a claim for mercy de-glish court it is usual that a motion to the court pends upon the conditions before described, and that it can only come before the court by way of application to put off the trial in order to give the party time to apply for a pardon. Rex v. Rudd, 1 Leach, 125; 1 Chit., Cr. L., ed. 1847, 82; Mass. Cr. L., 175. Attempt was made sixty years later in the same court to convince the Judges then presiding that some of the remarks of the Chief Justice in Rex v. Rugg, before cited, justified the conclusion that the accomplice in such a case was by law entitled to be exempted from punishment; but Lord Denman replied that the organ of the court on that occasion was not speak ing of legal rights in the strict sense, nor of such rights as would constitute a defense to an indict ment or an answer to the question why sentence should not be pronounced, saying, in substance and effect, that the right mentioned was only an equitable right, and that the court would post is made for the purpose, and that the court, in view of all the circumstances, will admit or disallow the evidence as will best promote the ends of public justice. 1 Phil. Ev., ed. 1868, 87; 3 Russ. Crimes, 9th Am. ed., 598. Good reasons exist to suppose that the same course is pursued in the courts of some of the States, where the English practice seems to have been adopted without much modification. People v. Whipple, 9 Cow., 707. Such offenders everywhere are competent witnesses if they see fit voluntarily to appear and testify; but the course of proceeding in the courts of many of the States is quite different from that just described, the rule being that the court will not advise the Attorney-General how he shall conduct a criminal prosecution. Consequently, it is regarded as the province of the public prosecutor and not of the court to determine whether or not an accomplice, who is |