257 Mass. 386 | Mass. | 1926
This is a petition for a writ of mandamus. The relevant facts are that one Devereaux was duly convicted of murder in the first degree, sentenced to death, and the week was appointed within which the sentence should be executed. A petition was filed with His Excellency, the Governor of the Commonwealth, addressed to the Governor and the Governor’s Council, alleging that Devereaux had become insane and praying that the execution of the sentence be respited in order to afford opportunity for investigation of the facts, for pardon and for respite until it appears to their satisfaction that the convict is no longer insane. The Governor refused to grant the petition or to submit it to the Council. The present petition alleges that Devereaux is
By the Constitution of Massachusetts the “power of pardoning offences . . . shall be in the governor, by and with the advice of council . . . .” Chapter 2, § 1, art. 8. This is the only warrant in the Constitution enabling the executive department of government to mitigate or remit sentences imposed by the courts as penalty for crime. The words, “The power of pardoning offences,” used in the Constitution, are of wide import. They comprehend not only the absolute release from the penalty imposed by the judicial department, but the exercise of all degrees of lesser clemency, such as remission of a part of the sentence, conditional pardon, commutation of sentence, and respite of sentence. They contain the grant of authority and establish the bounds limiting its exercise. The grant of authority and limitation of its exercise are not derived from legislation. They come directly from the sovereign power and are expressed in the great charter of government. It “is quite clear that, under any pretence of regulating its exercise, the executive authority could not be deprived of its constitutional rights in relation thereto, but provision may be made by legislation, which shall render the exercise of such a power convenient and efficient.” Kennedy’s Case, 135 Mass. 48, 51. Opinion of the Justices, 210 Mass. 609, 612.
The words of the Constitution to the effect that “The power of pardoning offences . . . shall be in the governor, by and with the advice of council,” mean that the initial responsibility is vested in the Governor. The duty of making the preliminary determination rests primarily upon the Governor alone. He decides whether any action ought to be taken in the premises and what action, if any, is demanded by the public welfare. This conclusion follows from the words which repose in the Governor, and in the Governor alone, the power of pardon. The words following this grant of power, viz., “by and with the advice of council,” show that the function of the Council is purely advisory after
This being the nature of the pardoning power as set forth in the Constitution, both as to its scope and the method of its exercise, it remains to consider the meaning and effect of G. L. c. 279, § 48, upon which the petitioner relies. The relevant words of that section are, “If it appears to the satisfaction of the Governor and Council that a convict under sentence of death has become insane, the Governor, with the advice and consent of the Council, may, from time to time for stated periods, respite the execution of said sentence.” Since this section relates to the pardoning power, it must be construed, so far as practicable, to be in harmony with the Constitutional provisions touching that power. A statute must be interpreted, “if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U. S. 394, 401. Kennedy v. Commissioner of Corpora
It follows that the request for a ruling that as matter of law the writ should issue was denied rightly. It is unnecessary to consider other objections urged against the issuance of the writ.
Petition dismissed.