in re Opinion of the Justices

• Decision Date: 12 January 1912
• Citation: 210 Mass. 609,98 N.E. 101
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 609

98 N.E. 101

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

January 12, 1912

OPINION

Opinion of the Justice of the Supreme Judicial Court, sent down in answer to the following letter from the Governor, dated January 11, 1912:

'In relation to the death sentence imposed in the Phelps Case I feel it incumbent upon me to ask the Supreme Judicial Court of Massachusetts for a decision as to the responsibility of the Governor in cases involving the capital sentence.

'Article 8, ? c. 2, pt. 2, of the Constitution of Massachusetts says that 'the power of pardoning offenses * * * shall be in the Governor, by and with the advice of Council.'

'From the existing statutes, I am unable to determine whether the commutation of a sentence is of the nature of a conditional pardon. I am also unable to determine whether in the event of either a pardon or a commutation of sentence, the Governor is expected to obtain the consent as well as the advice of the Council.

'In our Massachusetts Reports [190 Mass. 616, 619, 620, 78 N.E. 311, 312] the court states in relation to the commutation of a sentence, as follows:

'They all recognize the fact that the act, first of all, and afterwards for all time, is to be the act of the Governor. The only connection that the Council can have with it is advisory. Whether the Governor takes advice or not, his conclusion must rest finally upon his own judgment. Inasmuch as the responsibility for his determination, with or without advice, must rest upon him, both in the beginning and forever after, the natural course of proceeding would seem to be that he should seek such aid as he might desire from any proper source, and not be obliged to ask advice, in the first instance, from an official body whose opinion could never relieve him from the duty of deciding.'

'In view of these uncertainites, it appears to be my duty to ask the Supreme Judicial Court also whether the Governor himself has the right to commute a sentence, as from death to life imprisonment.

'While the pending sentence of death in the Phelps Case brings this matter to my earnest attention, my wish is, irrespective of any action which might result in this instance, to find out exactly what obligation rests upon the Governor under our Constitution and statutes in such instances.'

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 8, ? 1, c. 2, of part the second provides that 'the power or pardoning offenses, 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 offenses' 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...