Juggins v. Executive Council to the Governor

• Decision Date: 10 November 1926
• Citation: 154 N.E. 72,257 Mass. 386
• Parties: JUGGINS v. EXECUTIVE COUNCIL TO THE GOVERNOR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 386

154 N.E. 72

JUGGINS

v.EXECUTIVE COUNCIL TO THE GOVERNOR et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 10, 1926.

Exceptions from Supreme Judicial Court, Suffolk County.

Petition for writ of mandamus by Francis Juggins against the Executive Council to the Governor and another. Petition dismissed, and petitioner excepts. Exception overruled, and petition dismissed.

F. Juggins and M. Morrill, both of Boston, for petitioner.

J. H. Devlin, Asst. Atty. Gen., for respondents.

RUGG, C. J.

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 still insane. The petitioner asked the court to rule as matter of law that the writ of mandamus should issue. Exception to the denial of this ruling presents the single question for decision.

[1] By the Constitution of Massachusetts the ‘power of pardoning offenses, * * * shall be in the governor, by and with the advice of council. * * *’ Part 2, c. 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 offenses,’ 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 pretense 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 Justices, 210 Mass. 609, 612, 98 N. E. 101.

The words of the Constitution, to the effect that ‘the power of pardoning offenses * * * 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 affirmative action has been decided upon by the supreme executive magistrate. The council does not have the power of initiative, either alone or conjointly with the Governor. The approval of the council must follow after and accompany the affirmative act of the Governor ‘and enter into it before it becomes complete and effective.’ These words of the Constitution heretofore quoted from part 2, c. 2, § 1, art. 8, ‘recognize the fact that the act, first of all, and afterwards for all time, is to be ...