Opinion of the Justices to the Governor

210 Mass. 609

• Court: Massachusetts Supreme Judicial Court
• Decided: January 12, 1912
• Status: Published

Opinion

To his Excellency

Eugene N. Foss,

Governor of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court, in reply to the questions presented to them, respectfully submit the following answers:

The power, duty and responsibility of the Governor respecting pardons is found in the Constitution of the Commonwealth. Article VIII, Section I, Chapter II of Part the Second provides that “ The power of pardoning offences, except such as persons may be convicted of before the senate by an impeachment of the house, shall be in the governor, by and with the advice of council.” The words “The power of pardoning offences” are comprehensive. They include not only that absolute release from the penalty which is referred to commonly as a pardon, but those lesser exercises of clemency which are described as conditional pardon, commutation of sentence and respite of sentence. The only authority for the executive department of the government to mitigate or release from sentence for crime is this language of the Constitution. The Governor is clothed with authority to act in that respect only “ by and with the advice of council.” The unmistakable meaning of these words is that he can act only in conformity to the advice of the Council. He may decline to take action although the Council advise him to do so. Responsibility for granting a pardon rests upon the Governor and he cannot be compelled to take such action by the Council. The language quoted in your letter from the Opinion of the Justices, 190 Mass. 616, 619, 620, has reference to this aspect of the duty of the Governor. Equal responsibility rests upon the Council. The granting of a full or a partial pardon is the result of concurrent action by both the Governor and the Council. Neither alone can take effective action. Both must agree before the Constitution is satisfied.

The Governor is not required to ask the advice of the Council in forming his opinion. He may refuse to pardon without first referring the matter to the Council. But if he desires to grant a pardon, he must take the advice of the Council before undertaking to act. This is pointed out clearly in the Opinion of the Justices, 190 Mass. 616, 619, in these words: “ The provision for advice of the Council is a requirement that their approval and concurrence shall accompany the affirmative act and enter into it before it becomes complete and effective.” The power to pardon as vested in the Governor is not absolute but conditional, and that condition is that it shall be exercised in accordance with the advice of the Council. Such is the plain reading of the Constitution; and so far as we know this always has been the practice.

The same principle applies whether the act be a complete or a modified pardon. A commutation of sentence, which is the substitution of a lighter for a more severe punishment, is an exercise of the pardoning power and must be in accordance with the Constitution. It is an act of the Governor which becomes effective only when concurred in by the Council. See Opinion of the Justices, 14 Mass. 472.

Although no express reference is made to the Council in R. L. c. 220, § 89, which relates to the commutation of sentences, the statute must be read as subject to the provisions of the Constitution. Otherwise the statute would be unconstitutional. It cannot be assumed that the Legislature intended to confer upon the Governor a power which would be beyond its constitutional authority. The power of commutation of sentence, conditional pardon and respite of sentence referred to in this and other sections of the statute is not created by the statute but is derived wholly from the Constitution. The only right of the Legislature is to enact laws to render the exercise of the constitutional power efficient and convenient. Kennedy’s case, 135 Mass. 48.

Mr. Justice Loring, being ill, has not considered these questions.

January 12,1912. Arthur P. Rugg.

James M. Morton.

John W. Hammond.

Henry K. Braley.

Henry N. Sheldon.

Charles A. DeCourcy.