(July 22d.

amendment, viz.: that moved by the gentleman | the Convention proceeded to the consideration of from Brookline, (Mr. Aspinwall,) to strike out the Orders of the Day, the first subject being the words, "except chairmen of Committees,” and the resolves in relation to it was decided in the affirmative. So the amendment was adopted.

The Council. Mr. EARLE, of Worcester. I wish to inquire The question being upon their final passage. whether, if this order be adopted, it will require Mr. CHURCHILL, of Milton. I rise to detain a vote of two-thirds for its suspension ?

the Convention but a single moment, for the purThe PRESIDENT. The Chair is of opinion pose of proposing an amendment, which I do upon that it is in the nature of a rule, and will require consultation with many eminent and leading men two-thirds.

of the Convention, of all parties, whose approbaMr. EARLE. If so, I am satisfied.

tion or assent to this proposition, I am happy to Mr. KEYES rose and addressed the Chair.

say I have received. I respectfully ask the attenThe PRESIDENT. Debate is not in order.

tion of the Convention to this amendment while Mr. KEYES. I had no intention to debate. I I read it, that they will consider it for a moment, wish to ask if an amendment is in order?

and they will perceive that there can be no objecThe PRESIDENT. It is not in order.

tion to it, even if it has no great virtue in it. It Mr. KEYES. I was going to move to strike is to add an additional resolution, as follows :out the words, “ without leave.”

The PRESIDENT. No debate is in order. Resolved, That it is expedient to amend the A MEMBER. I wish to know what the

Constitution as follows, to wit: The legislature amended order will mean?

may provide by law that public notice shall be

given of all applications to the Governor and The PRESIDENT. It is not for the Chair to

Council, for the remission of the sentences of explain its meaning. The previous question still persons imprisoned for crime. applies, and the question now is on the adoption of the order as amended.

It will be perceived that it is not intended, by The order, as amended, was adopted.

this amendment, to limit, or restrict, or impair,

in any way, the exercise of that power hereafter, Amendments to the Constitution.

or to cast any reflection upon the manner in Mr. MORTON, of Taunton, moved that the

which it has been exercised heretofore. The Convention resolve itself into Committee of the

power to which that amendment refers is one of Whole, for the purpose of considering the resolves

the highest, most important, and most delicate in relation to the mode of submitting to the peo

exercises of sovereignty in the Commonwealth. ple, for their approval or rejection, future amend

It touches upon the life and liberty of the subments to the Constitution.

ject. It reviews and reëxamines the long and It is, said Mr. Morton, a subject of considerable expensive investigations of your courts, and may, interest; and it is of some consequence that it in proper cases, reverse their decisions. I do not should be disposed of as early as possible.

wish to open, in any way, the debate which has Mr. GRISWOLD, for Erving. Is the motion already been had upon the subject of the Coundebatable ?

cil. I do not suppose that the Convention desire The PRESIDENT. The Chair is of opinion

to open that debate, and therefore I shall not that debate may be entertained.

give any lengthy reasons for this amendment. Mr. GRISWOLD. I hope that this motion

A similar provision exists in the Constitution of will prevail at this time. There are some subjects the State of New York; and it is well, in calm on the Orders of the Day, that may be disposed times in this Commonwealth, to adopt such rules of in a short time, and they are matters which

as will tend to our protection and safety in times ought not to be delayed. I trust we shall now

of excitement and danger; for, although there proceed to dispose of them. And I will say,

may not have been, hitherto, any abuse of the farther, that I suppose-I know, in fact

pardoning power--as to which gentlemen differ Mr. BRIGGS, of Pittsfield. Is this motion widely--we may have in this Commonwealth debatable ?

such difficulties as have occurred in New York, The PRESIDENT. The Chair is of opinion, and Pennsylvania, and other States ; and, in upon reflection, that it is not.

such case, this provision will enable the legislaThe question was taken on the motion of the ture, in some manner to look after the exercise gentleman from Taunton, and it was decided in of that power. It does not make the granting the negative.

of a pardon dependent upon the giving of notice, On motion of Mr. CUSHMAN, of Bernardston, but it simply allows the legislature, if it shall

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see fit to do so, to legislate upon the matter of executive clemency. I wrote to the judge who notice for such applications. I believe that every tried the case, and he furnished such information gentleman will see that this may be a useful and as satisfied me that the pardoning power ought practical amendment, and that there can be no not to be exercised. Now, it is not usually condanger, whatever, in its adoption.

venient for the executive to go out of his way to Mr. BOUTWELL, for Berlin. I wish to say, ascertain the facts which may be in the possession only, that I entirely concur in the object of this of individuals, and which may not otherwise come amendment, proposed by the gentleman from under his notice. Milton, (Mr. Churchill). I think it is a proper Mr. WHITNEY, of Boylston. I hope that

It leaves the matter in this form : if at this amendment will not be adopted, because 1 any time the legislature shall see fit to declare, see that it will open the whole question of parby law, that public notice shall be given of the doning and condemning criminals. I think the intended application of convicts for a remission reasons last given are sufficient to show us that it of sentence, they may do so; and I think that does open this question. Here is a case where no executive can object, under any circumstances, the decision of the executive was determined by to such notice. I hope, therefore, that the amend- facts coming from the officers of the law. This is ment may be adopted.

one case; and may there not be a hundred cases Mr. GRISWOLD, for Erving. I dare say, where a man may lose his pardon from the same that this amendment may pass; and as it is to be cause? As the gentleman for Erving has said, left with the legislature, it makes it less objec- the chances are against the criminal; and after a tionable. I should be reluctant to disagree in a man has had his trial they ought to leave him matter of this sort, with the gentleman who has alone with the pardoning power, and not with just taken his seat; but if I were a member of the the power of the law. Why should the law offilegislature, I should oppose such a proposition in cers intervene to prevent a pardon, if, after conthat body; and, therefore, I think it my duty to sideration by the pardoning power, the executive vote against it here. I suppose the object of the should deem him worthy of a pardon? They amendment is to bring the government officers in have all the means of information that they ought to oppose the pardon.

to have, and therefore I am opposed to this amendMr. CHURCHILL. No such object is intend- ment, because it opens up before the Convention ed. It is left to the legislature to provide for the the whole question again. giving of such notice as they may see fit; but it Mr. LORD, of Salem. I think, Mr. Presiis not to bring the government officers in to op- dent, that there has really been sometimes in the pose a pardon.

Council-Chamber a misapprehension as to what Mr. GRISWOLD. Then I want to know the pardoning power is. I have been accustomed what the object is ? A convict has ordinarily a to believe that a pardon implied that the person hard enough chance. He is generally poor and pardoned had been guilty of some offence ; that without means—often without friends; and it is you cannot pardon an innocent man; and I think difficult enough for him to gain access to the that all this discussion would have been avoided, Council. I cannot, therefore, see any object in and the true theory of a pardon would have been this amendment, except to notify the government sustained, if we had made this provision, that no officers that they may come in and oppose a par- pardon should be granted upon the ground that don. It seems to me that it is well enough as it the party suing for a pardon was wrongfully conis now, and that the chances are against the con- victed, but that it should be the duty of the legisvict. I have not reflected upon the question, but lature to provide a remedy in all such cases by a with my present views I shall oppose it.

judicial tribunal. Mr. BOUTWELL. If the Convention will It seems to me that such a provision in the allow me, I will state a case within my own per- Constitution as that would cover the entire diffisonal experience which will satisfy gentlemen culty. The Government and Council represent that it is well enough that the public, and es- the people just as much, and rather more than pecially the prosecuting officers and the judges, the district-attorneys do.

They represent the should know that such application is made; for public wholly upon this matter of pardon, and it necessarily happens that the hearings are very the district-attorneys have nothing to do with much ex parte. No one will contend that a con- that, and have nothing to do with the question vict should be released without a just and proper whether a person ought to be forgiven. If a claim upon the clemency of the government person is to be pardoned, upon the ground that Now, it happened in the case to which I refer, he is not guilty, then the district-attorney has that the Council recommended a convict to the something to say about it, and not otherwise.


Keyes — TRAIN.

(July 22d.

Therefore, it seems to me, that if we leave Convention deem it, under the circumstances, the matter of clemency to the executive, who necessary to adopt this provision, from the fact represents the people of the Commonwealth, we that it introduces a system by which farther indo well. If we provide that no pardon shall be formation can be gained, I do not see fit here granted on the ground of a wrongful conviction, publicly to oppose it, though I think it is perwe shall also do right, at the same time, to pro- fectly unnecessary, as all the ineans necessary to vide that the legislature should make a proper find out the facts of each case are, under the remedy for such cases.

present system, put in requisition. Mr. KEYES, for Abington. I saw this amend. Mr. TRAIN, of Framingham. Were I quite ment before it was offered, and I had one reason sure of the feeling of the Convention, in regard for not opposing it. The other day, when the sub- to this matter, I would not occupy one moment ject was before the Convention, it did not seem to of its time. But, as I am not quite sure, and me that there was any substantial ground presented am a little afraid that the Convention may vote for any action in regard to the matter. Therefore, down the amendment, I hope I may be pardoned I then opposed even what I should consider a for making a few suggestions. If it were not a proper motion, on the ground that it might con- foregone conclusion, I should be happy to aid in firm a false opinion which was abroad in the com- lopping off and out of the Constitution, what I munity, viz. : that the Council were too lenient, and consider a useless portion of the government of too loose in their action, and that they have been the State, to wit: the Executive Council. But disposed to throw open the prison doors without that has gone by, and therefore I will not trouble reason. It was on that ground alone that I op- anybody with any views of mine upon that posed the proposition then. Now, I do not want point. But I believe this to be a matter of imto keep up the opposition, because if carried too portance, because, notwithstanding the arguments far, it might tend to confirm the opinion that of my friend for Abington, (Mr. Keyes,) and the Council wished to hide their acts, and felt those of other gentlemen who have addressed the guilty, and were afraid of exposure. I do not Convention heretofore, I believe that the pardonbelieve that ; there is no truth in it. As far as ing power has been exercised in a manner most this can be adopted on proper principles and for prejudicial to the interest of the State. If genproper purposes, I will not oppose it, because tlemen will look at the document which has been any assistance the Council can obtain from either furnished us, upou the motion of my friend from side, is what they seek and desire, and such in- Lowell, (Mr. Butler,) they will find that the formation they have never sought to avoid. I number of pardons granted for the last ten years, think the reasons of the gentleman from Salem averages nearly one for each week. Now, Sir, (Mr. Lord) are pretty important. This matter of either the pardoning power has been exercised in pardoning on the ground of a wrongful conviction a manner unbecoming and improper, or else the of the court, is right, because the courts may make trial by jury is a mockery, and courts of justice a mistakes. Within the last twelve months, sen- farce; because it cannot be true that it should be tences have been passed by a judge of this Com- the duty of jurors to convict, and courts to senmonwealth, upon two convicts, one being sen- tence, and the duty of the Governor and Council tenced to the State Prison for three or four years, to pardon, almost in the same breath. At this and the other to the House of Correction for three very term of the court of common pleas, in the or four months; whereupon the juries that tried county of Middlesex, I understand that they have those cases were so thunderstruck at the dispro- tried five individuals, who have been tried and portion of the sentences to the nature of the sentenced before, within the last three years, and crimes; and believing that the one sent to the who have been pardoned within that time, and State Prison should have gone to the House of come back again, to use the expressive language Correction, and the one sent to the House of Cor- of another gentleman, for the lawyers to have rection, should have been sentenced to the State another lick at. Prison, that they went to the judge, and told him Now, it is for the Commonwealth to protect the if he did not reverse his sentences they would interests of society, by taking care of those who make a noise about it. He did so. I could not violate its laws, and, if you desire that the best swear that this is so. state it upon hearsay, | influence should be exercised upon society, you and do not vouch for its accuracy; but have should adopt two principles. In the first place reason to believe the statement correct. From it should be settled, that conviction shall certainsuch a case we see the necessity of the pardoning ly follow the commission of a crime, and, in the power.

next place, that criminals should understand, I rose simply to make this explanation. If the that as certainly as they are convicted, they shall




(July 22d.

serve out the time of their sentence. In this courts are performed with a proper regard to the way you have an influence exerted over that por- publicinterests, the duties of the Council-Chamber tion of society which commit crimes; but, under are not performed in that manner. I beg leave the sickly sentimentality which some gentlemen to express my opinion as to the performance of in this Commonwealth cultivate, the man who those duties, with one exception, to which it is commits a crime is a man of rather more import- not proper for me to refer. I do not believe it ance than an honest man. These are general can be shown that during the whole history of principles which ought to be laid down.

this government, there has been any abuse of the Nobody believes but that the Council and Gov- pardoning power. I have no doubt that cases ernor undertake to exercise their powers in good occur frequently, from the imperfection of human faith, but the trouble has been that they have judgment and human affairs, in which the power granted pardons in cases where notice has not has been exercised where it ought not to have been given to the court, and the prosecuting been, but never under circumstances which tend officers, who were familiar with all the circum- to show that that branch of the government stances of the case ; that they have granted par- have had a disposition to, or that they have, indons upon hearsay testimony, without the for- fringed upon the duties of the courts, or intermality of a trial, without the solemnity which is posed any obstacle to the carrying out the judgthrown around a judicial investigation, and have ments of the judicial tribunals. There is no allowed their feelings to be wrought upon, until motive for such a course in this world. Why, in they believed the applicant had been wrongfully Heaven's name, should they do it? Who are punished, or that he would be a better man, if those people who apply to them for pardon? They discharged. We all desire to have the pardoning come without friends, and without money. They power preserved, but we desire to have it proper- are poor and helpless. It has been already said ly exercised. The amendment contemplates that that their cases are frequently brought before the when an application shall be made for the exer- executive by the officers of the prison. I wish cise of the pardoning power, the legislature, if it gentlemen could see the records of the doings of shall find it necessary, shall require the pardon- the pardoning power, and read the history of the ing power to give notice to those who may be cases presented to them from time to time, and I supposed to be better acquainted with the case, think they would somewhat change their opinions and from whom they can obtain more reliable upon this subject. But, says the gentleman, they information than they can possibly get from the follow up suddenly, and frequently annul the friends of the criminal, or from any other source. decisions of the court, and release convicts from

Let me say here, that I do not concur in the their judgments. Yes, Sir, they do; but they insinuations which have been thrown out here, never do it, when in their judgment there is not upon the manner in which the judges of the sufficient reason for interposing in that way. A courts perform their duties in passing sentences few days since, I heard of a case which occurred upon criminals. As far as I know, the courts in an adjoining county, and that is only one of have performed their duties faithfully, and have many of a similar character, though not exactly found no obstacle but what has been thrown in like it. Some boys were arrested for petty their way by the pardoning power. I know of offences, and sent to the House of Correction, and no State in which the law is administered more among those boys was one who was only eight faithfully and more justly than in Massachusetts. years of age. He was tried and sent to the House The reformatory power in the courts, is exercised of Correction without any notification to his pamore effectually and efficiently, and more regu- rents. There the poor little fellow was, moaning larly there than elsewhere. I hope the amend- and crying from morning till night, and wetting ment will be adopted for the reasons I have sug- his pillow with his tears, because he had been gested.

taken from his parents and sent there. The case Mr. BRIGGS, of Pittsfield. I see no great was brought before the Council, by the keeper of objection to this amendment, though I do not see the House of Correction, and I understand the any necessity for it. If gentlemen apprehend so pardoning power interposed. What kind of a much danger to the Commonwealth from the pardoning power would that be which would exercise of the pardoning power, that some check not interpose under such circumstances ? It is should be placed upon it, I should think it well in such cases as these, of sentence to the House to confer that power upon the legislature, though of Correction, and in other cases where the time not for the reasons alleged by my friend who has of sentence has nearly expired, or when the just set down. I do not concur in what seems health of the prisoner is failing, that the pardonto be his intimation, that while the duties of the ing power is most frequently exercised. It is, in



[July 22d.

these latter cases, exceeding proper, that the for granting a new trial, the Governor and Council criminal should have some little daylight break should be allowed, technically, to pardon such in upon his heart, giving him some reason to persons. Until the legislature make that provisfeel that there is one portion of the government ion this will be the only remedy which can be of the Commonwealth which regards him with exercised. humanity and kindness, and which is willing to Mr. FRENCH, of Berkley. I hope I shall remit the few remaining days of his imprison- not be considered out of order if I remind the ment. Who can tell how much influence such Convention that we are to adjourn to-morrow, a course may have upon the convict who has been for I believe we have voted to do so. confined for months and years. They go out SEVERAL MEMBERS. 0, no ! feeling that the government is not an incorrigible Mr. FRENCH. Then I am mistaken ; but tyrant.

that was the Report of the Committee appointed It will be found, on consulting the records, that upon that subject. But, Sir, if we are going to there are many more cases where the courts and take up the time of the Convention in debating prosecuting officers are consulted, than gentlemen questions of minor importance—for the mover are aware of. The case mentioned by the gentle- of this amendment himself says it is not a matter man for Berlin, (Mr. Boutwell,) is one of that of much importance-I think we had better send kind. In looking over a few cases the other day, home for our winter clothes, [a laugh,] for we though with a different object in view, I found shall not be likely to get through before winter. that about one-half of them were cases where Now, it seems to me that this pardoning power the counsel was consulted. One of those cases must be deposited with somebody-it must be was that of a man who was sentenced from the left with some branch of the government, and I county of Franklin, to the State Prison for life. know of no better power to leave it with, than The report states that at the time of the convic- where it has been left heretofore. I think the tion, the government attorney assured him that Governor, with the advice of his Council, will be he would aid him if he behaved himself, and able to decide correctly upon all matters of pardon, when an application for pardon was made by a I know it is the nature of man to be fallible, and number of citizens, the prosecuting attorney did that in some instances even with all the wisdom interpose, with other citizens, in his favor. of the Council, the Governor may make mistakes.

As I said before, and repeat now, I do not be- But, Sir, I do not desire to discuss this queslieve that it can be found, in looking over the tion. I want that the question should be dishistory of the Executive Council, that any abuse posed of, in some way, without farther debate. I has existed in the exercise of this power. That hope the amendment will be rejected. there have been mistakes, I have no doubt at all. (Cries of “Question !” “Question !”]

The gentleman from Salem, (Mr. Lord,) has Mr. KEYES, for Abington, addressed the alluded to a class of cases, where persons have President, and was recognized. been wrongfully convicted. Now, by law, there Mr. ADAMS, of Lowell. I rise to a question is a limit to the time within which a person must of order. The gentleman for Abington has spoapply for a new trial, and when that time has ken two or three times upon this question, and expired, there is no remedy for a person in pris- upon that ground I claim the floor. on under sentence. What should the executive Mr. KEYES. I will yield the floor to the do in such cases, when it is shown beyond reason- gentleman, with pleasure, if he desires to speak. able doubt that the person has been wrongfully

Mr. ADAMS. I have no wish to consume convicted, and the day for moving a new trial has more of the time of the Convention upon this passed by? It would be more than injustice for subject. I move the previous question. the executive to refuse to interfere. It would be Mr. KEYES. I was legitimately entitled to inhuman!

the floor, but having before spoken upon this Mr. LORD, of Salem. I ask the gentleman subject, I yielded it, with great pleasure, to the from Pittsfield to allow me to say, that a part of gentleman from Lowell to speak, but not to move my suggestion was that the Governor and Council the previous question, and I do not understand should not pardon upon the ground of erroneous that the gentleman, under the Rules, can take conviction, but that the legislature should extend the floor from me for any such purpose. the time within which a new trial may be granted, The PRESIDENT. The delegate from Lowell, in order to provide a remedy for such cases. (Mr. Adams,) and the delegate for Abington,

Mr. BRIGGS. I entirely concur in the gen- | (Mr. Keyes,) rose simultaneously, but, inasmuch tleman's suggestion, but I submit, that until the as the gentleman for Abington had tried two or legislature make provision for extending the time three times to get the floor, the Chair awarded it

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