Friday,]

[July 22d.

So the amendment was adopted.

Mr. EARLE, of Worcester. I wish to inquire whether, if this order be adopted, it will require a vote of two-thirds for its suspension ?

The PRESIDENT. The Chair is of opinion that it is in the nature of a rule, and will require two-thirds.

Mr. EARLE. If so, I am satisfied.

Mr. KEYES rose and addressed the Chair. The PRESIDENT. Debate is not in order. Mr. KEYES. I had no intention to debate. I wish to ask if an amendment is in order?

The PRESIDENT. It is not in order. Mr. KEYES. I was going to move to strike out the words, "without leave."

The PRESIDENT. No debate is in order. A MEMBER. I wish to know what the amended order will mean?

The PRESIDENT. It is not for the Chair to explain its meaning. The previous question still applies, and the question now is on the adoption of the order as amended.

The order, as amended, was adopted.

Amendments to the Constitution.

Mr. MORTON, of Taunton, moved that the Convention resolve itself into Committee of the Whole, for the purpose of considering the resolves in relation to the mode of submitting to the people, for their approval or rejection, future amendments to the Constitution.

It is, said Mr. Morton, a subject of considerable interest; and it is of some consequence that it should be disposed of as early as possible.

Mr. GRISWOLD, for Erving. Is the motion debatable?

The PRESIDENT. The Chair is of opinion that debate may be entertained.

Mr. GRISWOLD. I hope that this motion will prevail at this time. There are some subjects on the Orders of the Day, that may be disposed of in a short time, and they are matters which ought not to be delayed. I trust we shall now proceed to dispose of them. And I will say, farther, that I suppose-I know, in fact

Mr. BRIGGS, of Pittsfield. Is this motion debatable?

the resolves in relation to

The Council.

The question being upon their final passage. Mr. CHURCHILL, of Milton. I rise to detain the Convention but a single moment, for the purpose of proposing an amendment, which I do upon consultation with many eminent and leading men of the Convention, of all parties, whose approbation or assent to this proposition, I am happy to say I have received. I respectfully ask the attention of the Convention to this amendment while I read it, that they will consider it for a moment, and they will perceive that there can be no objection to it, even if it has no great virtue in it. It is to add an additional resolution, as follows:

Resolved, That it is expedient to amend the Constitution as follows, to wit: The legislature may provide by law that public notice shall be given of all applications to the Governor and Council, for the remission of the sentences of persons imprisoned for crime.

It will be perceived that it is not intended, by this amendment, to limit, or restrict, or impair, in any way, the exercise of that power hereafter, or to cast any reflection upon the manner in which it has been exercised heretofore. The power to which that amendment refers is one of the highest, most important, and most delicate exercises of sovereignty in the Commonwealth. It touches upon the life and liberty of the subject. It reviews and reëxamines the long and expensive investigations of your courts, and may,

in proper cases, reverse their decisions. I do not wish to open, in any way, the debate which has already been had upon the subject of the Council. I do not suppose that the Convention desire to open that debate, and therefore I shall not give any lengthy reasons for this amendment. A similar provision exists in the Constitution of the State of New York; and it is well, in calm times in this Commonwealth, to adopt such rules as will tend to our protection and safety in times of excitement and danger; for, although there may not have been, hitherto, any abuse of the pardoning power--as to which gentlemen differ widely-we may have in this Commonwealth such difficulties as have occurred in New York,

The question was taken on the motion of the gentleman from Taunton, and it was decided in the negative.

such case, this provision will enable the legislature, in some manner to look after the exercise of that power. It does not make the granting of a pardon dependent upon the giving of notice,

Friday,]

BOUTWELL-GRISWOLD

see fit to do so, to legislate upon the matter of notice for such applications. I believe that every gentleman will see that this may be a useful and practical amendment, and that there can be no danger, whatever, in its adoption.

Mr. BOUTWELL, for Berlin. I wish to say, only, that I entirely concur in the object of this amendment, proposed by the gentleman from Milton, (Mr. Churchill). I think it is a proper one. It leaves the matter in this form: if at any time the legislature shall see fit to declare, by law, that public notice shall be given of the intended application of convicts for a remission of sentence, they may do so; and I think that no executive can object, under any circumstances, to such notice. I hope, therefore, that the amendment may be adopted.

Mr. GRISWOLD, for Erving. I dare say, that this amendment may pass; and as it is to be left with the legislature, it makes it less objectionable. I should be reluctant to disagree in a matter of this sort, with the gentleman who has just taken his seat; but if I were a member of the legislature, I should oppose such a proposition in that body; and, therefore, I think it my duty to vote against it here. I suppose the object of the amendment is to bring the government officers in to oppose the pardon.

Mr. CHURCHILL. No such object is intended. It is left to the legislature to provide for the giving of such notice as they may see fit; but it is not to bring the government officers in to oppose a pardon.

Mr. GRISWOLD. Then I want to know what the object is? A convict has ordinarily a hard enough chance. He is generally poor and without means-often without friends; and it is difficult enough for him to gain access to the Council. I cannot, therefore, see any object in this amendment, except to notify the government officers that they may come in and oppose a pardon. It seems to me that it is well enough as it is now, and that the chances are against the convict. I have not reflected upon the question, but with my present views I shall oppose it.

Mr. BOUTWELL. If the Convention will allow me, I will state a case within my own personal experience which will satisfy gentlemen that it is well enough that the public, and especially the prosecuting officers and the judges, should know that such application is made; for it necessarily happens that the hearings are very much ex parte. No one will contend that a convict should be released without a just and proper claim upon the clemency of the government. Now, it happened in the case to which I refer, that the Council recommended a convict to the

-

[July 22d.

executive clemency. I wrote to the judge who tried the case, and he furnished such information as satisfied me that the pardoning power ought not to be exercised. Now, it is not usually convenient for the executive to go out of his way to ascertain the facts which may be in the possession of individuals, and which may not otherwise come under his notice.

Mr. WHITNEY, of Boylston. I hope that this amendment will not be adopted, because 1 see that it will open the whole question of pardoning and condemning criminals. I think the reasons last given are sufficient to show us that it does open this question. Here is a case where the decision of the executive was determined by facts coming from the officers of the law. This is one case; and may there not be a hundred cases where a man may lose his pardon from the same cause? As the gentleman for Erving has said, the chances are against the criminal; and after a man has had his trial they ought to leave him alone with the pardoning power, and not with the power of the law. Why should the law officers intervene to prevent a pardon, if, after consideration by the pardoning power, the executive should deem him worthy of a pardon? They have all the means of information that they ought to have, and therefore I am opposed to this amendment, because it opens up before the Convention the whole question again.

Mr. LORD, of Salem. I think, Mr. President, that there has really been sometimes in the Council-Chamber a misapprehension as to what the pardoning power is. I have been accustomed to believe that a pardon implied that the person pardoned had been guilty of some offence; that you cannot pardon an innocent man; and I think that all this discussion would have been avoided, and the true theory of a pardon would have been sustained, if we had made this provision, that no pardon should be granted upon the ground that the party suing for a pardon was wrongfully convicted, but that it should be the duty of the legis lature to provide a remedy in all such cases by a judicial tribunal.

It seems to me that such a provision in the Constitution as that would cover the entire difficulty. The Government and Council represent the people just as much, and rather more than the district-attorneys do. They represent the public wholly upon this matter of pardon, and the district-attorneys have nothing to do with that, and have nothing to do with the question whether a person ought to be forgiven. If a person is to be pardoned, upon the ground that he is not guilty, then the district-attorney has something to say about it, and not otherwise.

Therefore, it seems to me, that if we leave the matter of clemency to the executive, who represents the people of the Commonwealth, we do well. If we provide that no pardon shall be granted on the ground of a wrongful conviction, we shall also do right, at the same time, to provide that the legislature should make a proper remedy for such cases.

Mr. KEYES, for Abington. I saw this amendment before it was offered, and I had one reason for not opposing it. The other day, when the subject was before the Convention, it did not seem to me that there was any substantial ground presented for any action in regard to the matter. Therefore, I then opposed even what I should consider a proper motion, on the ground that it might confirm a false opinion which was abroad in the community, viz.: that the Council were too lenient, and too loose in their action, and that they have been disposed to throw open the prison doors without reason. It was on that ground alone that I opposed the proposition then. Now, I do not want to keep up the opposition, because if carried too far, it might tend to confirm the opinion that the Council wished to hide their acts, and felt guilty, and were afraid of exposure. I do not believe that; there is no truth in it. As far as this can be adopted on proper principles and for proper purposes, I will not oppose it, because any assistance the Council can obtain from either side, is what they seek and desire, and such information they have never sought to avoid. I think the reasons of the gentleman from Salem (Mr. Lord) are pretty important. This matter of pardoning on the ground of a wrongful conviction of the court, is right, because the courts may make mistakes. Within the last twelve months, sentences have been passed by a judge of this Commonwealth, upon two convicts, one being sentenced to the State Prison for three or four years, and the other to the House of Correction for three or four months; whereupon the juries that tried those cases were so thunderstruck at the disproportion of the sentences to the nature of the crimes; and believing that the one sent to the State Prison should have gone to the House of Correction, and the one sent to the House of Correction, should have been sentenced to the State Prison, that they went to the judge, and told him if he did not reverse his sentences they would make a noise about it. He did so. I could not swear that this is so. I state it upon hearsay, and do not vouch for its accuracy; but have reason to believe the statement correct. From such a case we see the necessity of the pardoning power.

I rose simply to make this explanation. If the

[July 22d.

Convention deem it, under the circumstances, necessary to adopt this provision, from the fact that it introduces a system by which farther information can be gained, I do not see fit here publicly to oppose it, though I think it is perfectly unnecessary, as all the means necessary to find out the facts of each case are, under the present system, put in requisition.

Mr. TRAIN, of Framingham. Were I quite sure of the feeling of the Convention, in regard to this matter, I would not occupy one moment of its time. But, as I am not quite sure, and am a little afraid that the Convention may vote down the amendment, I hope I may be pardoned for making a few suggestions. If it were not a foregone conclusion, I should be happy to aid in lopping off and out of the Constitution, what I consider a useless portion of the government of the State, to wit: the Executive Council. But that has gone by, and therefore I will not trouble anybody with any views of mine upon that point. But I believe this to be a matter of importance, because, notwithstanding the arguments of my friend for Abington, (Mr. Keyes,) and those of other gentlemen who have addressed the Convention heretofore, I believe that the pardoning power has been exercised in a manner most prejudicial to the interest of the State. If gentlemen will look at the document which has been furnished us, upon the motion of my friend from Lowell, (Mr. Butler,) they will find that the number of pardons granted for the last ten years, averages nearly one for each week. Now, Sir, either the pardoning power has been exercised in a manner unbecoming and improper, or else the trial by jury is a mockery, and courts of justice a farce; because it cannot be true that it should be the duty of jurors to convict, and courts to sentence, and the duty of the Governor and Council to pardon, almost in the same breath. At this very term of the court of common pleas, in the county of Middlesex, I understand that they have tried five individuals, who have been tried and sentenced before, within the last three years, and who have been pardoned within that time, and come back again, to use the expressive language of another gentleman, for the lawyers to have another lick at.

Now, it is for the Commonwealth to protect the interests of society, by taking care of those who violate its laws, and, if you desire that the best influence should be exercised upon society, you should adopt two principles. In the first place it should be settled, that conviction shall certainly follow the commission of a crime, and, in the next place, that criminals should understand, that as certainly as they are convicted, they shall

serve out the time of their sentence. In this way you have an influence exerted over that portion of society which commit crimes; but, under the sickly sentimentality which some gentlemen in this Commonwealth cultivate, the man who commits a crime is a man of rather more importance than an honest man. These are general principles which ought to be laid down.

Nobody believes but that the Council and Governor undertake to exercise their powers in good faith, but the trouble has been that they have granted pardons in cases where notice has not been given to the court, and the prosecuting officers, who were familiar with all the circumstances of the case; that they have granted pardons upon hearsay testimony, without the formality of a trial, without the solemnity which is thrown around a judicial investigation, and have allowed their feelings to be wrought upon, until they believed the applicant had been wrongfully punished, or that he would be a better man, if discharged. We all desire to have the pardoning power preserved, but we desire to have it properly exercised. The amendment contemplates that when an application shall be made for the exercise of the pardoning power, the legislature, if it shall find it necessary, shall require the pardoning power to give notice to those who may be supposed to be better acquainted with the case, and from whom they can obtain more reliable information than they can possibly get from the friends of the criminal, or from any other source.

Let me say here, that I do not concur in the insinuations which have been thrown out here, upon the manner in which the judges of the courts perform their duties in passing sentences upon criminals. As far as I know, the courts have performed their duties faithfully, and have found no obstacle but what has been thrown in their way by the pardoning power. I know of no State in which the law is administered more faithfully and more justly than in Massachusetts. The reformatory power in the courts, is exercised more effectually and efficiently, and more regularly there than elsewhere. I hope the amendment will be adopted for the reasons I have suggested.

Mr. BRIGGS, of Pittsfield. I see no great objection to this amendment, though I do not see any necessity for it. If gentlemen apprehend so much danger to the Commonwealth from the exercise of the pardoning power, that some check should be placed upon it, I should think it well to confer that power upon the legislature, though not for the reasons alleged by my friend who has just set down. I do not concur in what seems to be his intimation, that while the duties of the

courts are performed with a proper regard to the public interests, the duties of the Council-Chamber are not performed in that manner. I beg leave to express my opinion as to the performance of those duties, with one exception, to which it is not proper for me to refer. I do not believe it can be shown that during the whole history of this government, there has been any abuse of the pardoning power. I have no doubt that cases occur frequently, from the imperfection of human judgment and human affairs, in which the power has been exercised where it ought not to have been, but never under circumstances which tend to show that that branch of the government have had a disposition to, or that they have, infringed upon the duties of the courts, or interposed any obstacle to the carrying out the judg ments of the judicial tribunals. There is no motive for such a course in this world. Why, in Heaven's name, should they do it? Who are those people who apply to them for pardon? They come without friends, and without money. They are poor and helpless. It has been already said that their cases are frequently brought before the executive by the officers of the prison. I wish gentlemen could see the records of the doings of the pardoning power, and read the history of the cases presented to them from time to time, and I think they would somewhat change their opinions upon this subject. But, says the gentleman, they follow up suddenly, and frequently annul the decisions of the court, and release convicts from their judgments. Yes, Sir, they do; but they never do it, when in their judgment there is not sufficient reason for interposing in that way. A few days since, I heard of a case which occurred in an adjoining county, and that is only one of many of a similar character, though not exactly like it. Some boys were arrested for petty offences, and sent to the House of Correction, and among those boys was one who was only eight years of age. He was tried and sent to the House of Correction without any notification to his parents. There the poor little fellow was, moaning and crying from morning till night, and wetting his pillow with his tears, because he had been taken from his parents and sent there. The case was brought before the Council, by the keeper of the House of Correction, and I understand the pardoning power interposed. What kind of a pardoning power would that be which would not interpose under such circumstances? It is in such cases as these, of sentence to the House of Correction, and in other cases where the time of sentence has nearly expired, or when the health of the prisoner is failing, that the pardoning power is most frequently exercised. It is, in

these latter cases, exceeding proper, that the criminal should have some little daylight break in upon his heart, giving him some reason to feel that there is one portion of the government of the Commonwealth which regards him with humanity and kindness, and which is willing to remit the few remaining days of his imprisonment. Who can tell how much influence such a course may have upon the convict who has been confined for months and years. They go out feeling that the government is not an incorrigible tyrant.

It will be found, on consulting the records, that there are many more cases where the courts and prosecuting officers are consulted, than gentlemen are aware of. The case mentioned by the gentleman for Berlin, (Mr. Boutwell,) is one of that kind. In looking over a few cases the other day, though with a different object in view, I found that about one-half of them were cases where the counsel was consulted. One of those cases was that of a man who was sentenced from the county of Franklin, to the State Prison for life. The report states that at the time of the conviction, the government attorney assured him that he would aid him if he behaved himself, and when an application for pardon was made by a number of citizens, the prosecuting attorney did interpose, with other citizens, in his favor.

As I said before, and repeat now, I do not believe that it can be found, in looking over the history of the Executive Council, that any abuse has existed in the exercise of this power. That there have been mistakes, I have no doubt at all. The gentleman from Salem, (Mr. Lord,) has alluded to a class of cases, where persons have been wrongfully convicted. Now, by law, there is a limit to the time within which a person must apply for a new trial, and when that time has expired, there is no remedy for a person in prison under sentence. What should the executive do in such cases, when it is shown beyond reasonable doubt that the person has been wrongfully convicted, and the day for moving a new trial has passed by? It would be more than injustice for the executive to refuse to interfere. It would be inhuman!

Mr. LORD, of Salem. I ask the gentleman from Pittsfield to allow me to say, that a part of my suggestion was that the Governor and Council should not pardon upon the ground of erroneous conviction, but that the legislature should extend the time within which a new trial may be granted, in order to provide a remedy for such cases.

Mr. BRIGGS. I entirely concur in the gentleman's suggestion, but I submit, that until the legislature make provision for extending the time

for granting a new trial, the Governor and Council should be allowed, technically, to pardon such persons. Until the legislature make that provision this will be the only remedy which can be exercised.

Mr. FRENCH, of Berkley. I hope I shall not be considered out of order if I remind the Convention that we are to adjourn to-morrow, for I believe we have voted to do so.

SEVERAL MEMBERS. O, no!

Mr. FRENCH. Then I am mistaken; but that was the Report of the Committee appointed upon that subject. But, Sir, if we are going to take up the time of the Convention in debating questions of minor importance-for the mover of this amendment himself says it is not a matter of much importance-I think we had better send home for our winter clothes, [a laugh,] for we shall not be likely to get through before winter.

Now, it seems to me that this pardoning power must be deposited with somebody-it must be left with some branch of the government, and I know of no better power to leave it with, than where it has been left heretofore. I think the Governor, with the advice of his Council, will be able to decide correctly upon all matters of pardon. I know it is the nature of man to be fallible, and that in some instances even with all the wisdom of the Council, the Governor may make mistakes.

But, Sir, I do not desire to discuss this question. I want that the question should be disposed of, in some way, without farther debate. I hope the amendment will be rejected.

66

[Cries of "Question!" Question!"] Mr. KEYES, for Abington, addressed the President, and was recognized.

Mr. ADAMS, of Lowell. I rise to a question of order. The gentleman for Abington has spoken two or three times upon this question, and upon that ground I claim the floor.

Mr. KEYES. I will yield the floor to the gentleman, with pleasure, if he desires to speak.

Mr. ADAMS. I have no wish to consume more of the time of the Convention upon this subject. I move the previous question.

Mr. KEYES. I was legitimately entitled to the floor, but having before spoken upon this subject, I yielded it, with great pleasure, to the gentleman from Lowell to speak, but not to move the previous question, and I do not understand that the gentleman, under the Rules, can take the floor from me for any such purpose.

The PRESIDENT. The delegate from Lowell, (Mr. Adams,) and the delegate for Abington, (Mr. Keyes,) rose simultaneously, but, inasmuch as the gentleman for Abington had tried two or three times to get the floor, the Chair awarded it