135 Mass. 48 | Mass. | 1883
The statutory provisions, the consideration of which is here invoked, are found in the Pub. Sts. c. 218, §§ 12-14.
The power of pardoning offences, as conferred on the executive authority by the Constitution of the Commonwealth, is exceedingly comprehensive, extending to all offences except those of conviction by the Senate upon impeachment. It is only limited in its exercise by the provision that pardons shall not be granted before conviction. Perkins v. Stevens, 24 Pick. 277. This power includes that of mitigating the sentence, as by diminishing its duration where imprisonment has been ordered, or by commutation, so that a milder punishment is inflicted. It includes also the right to grant conditional pardons, either to take effect upon the performance of some precedent condition, or to become void by a failure to comply with some subsequent condition. This power is not derived from legislation, and 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. As there is danger that a conditional pardon may become an absolute one from a difficulty in enforcing its
The contention of the petitioner is, that the act and the proceedings had thereunder are in violation of his rights, as they subject him to an infamous punishment without trial by jury. But he is tried for no new offence, nor is he subjected to any new punishment. The suggestion that the old sentence is vacated by the pardon, which he founds on the language of the Pub. Sts. c. 218, § 12, that the Governor’s “ warrant shall be obeyed and executed, instead of the sentence originally awarded,” is not sound. The only meaning of the language is that the warrant is to operate, so far as it extends, as a modification of the sentence. Section 14 of the same chapter, in providing for a remand of the convict, treats the original sentence as continuing to exist.
While at common law, where proceedings are necessary for a recommitment of a convict who has broken the condition of a pardon, or where such a person has been, without warrant, seized and detained, and has sought to be released upon habeas corpus, the judicial tribunals have investigated and decided whether there was such breach, as preliminary to their action, re do not
Two orders have been made by the Governor and Council, of which the latter only need be considered, as it is upon that that the prisoner is now held. It is contended that these proceedings were irregular, even if the statutory provisions are constitutional. There does not appear to have been any notice to the convict, or order for him to appear. While this is not- in terms provided for by the statute, it is argued that there should have been a hearing or trial before the Governor and Council, at which the petitioner had a right to be present. Such is not the proceeding contemplated, but an inquest upon “the case of such convict,” to be conducted by the executive authority, to which the pardoning power is entrusted, that shall enable it to determine whether the conditional pardon shall be withdrawn. It is to act upon the admission of the party or evidence, when satisfied by either, and its investigation has none of the characteristics of a trial.
The record of the Governor and Council shows that, upon examination of the case, it appeared by evidence that the petitioner had violated the condition of his pardon, and the order remands him for imprisonment during the unexpired term of his sentence. How far this record is to be deemed conclusive upon the judicial tribunals, the power exercised, as it seems to us, being within the legal and constitutional authority of the Governor and Council, the case, as it appears upon the facts, affords us little occasion to consider. Undoubtedly the petitioner might be permitted to prove, upon a petition like the present, that he was not the Samuel Kennedy who had been once convicted, and who had received the conditional pardon. This would be to show a case of mistaken identity, that the executive order made had no relation to him, and thus that he was wrongly imprisoned thereunder. But it is shown by the report of the case that he is the identical