violation of such provision for the Legislature to pardon an individual person.

It is to be noted, however, that in the constitutions of many States, the exercise of the pardoning power is expressly made subject to regulations prescribed by the Legislature, either in general or as to some particular phase of procedure. That gives to the Legislature in such States a participation in the pardoning power in a general way, though not in any individual petition for pardon. Legislative pardons are not common in this country. On the nature of the pardoning power the Supreme Court of the United States said. in a leading case:

Whether the power to pardon is an exclusively executive function has been much debated, and authorities may be found for either contention. It is assumed in all the constitutions that it needs to be conferred on the executive in order to be rightfully exercised. Under the Federal Constitution legislation has conferred upon the Secretary of the Treasury power to remit fines and forfeitures. The practice commenced in 1797 and was in accordance with legislation in England, which, without interfering with the power of pardon belonging in the crown, invested certain subordinate officers with authority to remit penalties and forfeitures arising from violations of the revenue laws of that country; it was upheld by the Supreme Court in 1885, as justified by such a long practice and acquiescence as to amount to a settled interpretation of the Constitution. But the power of pardon conferred by the Constitution upon the President is unlimited, except in cases of impeachment.2

B. IN MASSACHUSETTS.

The Constitution of Massachusetts provides as follows: "The power of pardoning offences, 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 the Council; but no charter of pardon, granted by the Governor, with advice of Council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned." (Part II, Chap. II, Sect. 1, Art. VIII.) On the question of the extent of the power of the Governor and his Council under that provision, the Supreme Judicial Court, in a written opinion to the Governor, has stated as follows:

1 See III, D, post.

Ex parte Garland (1866), 4 Wall. 333.

The unmistakable meaning of these words is that he can act only in conformity to the advice of the Council. He may decline to take action although the Council advise him to do so. Responsibility for granting a pardon rests upon the Governor and he cannot be compelled to take such action by the Council. . . . The Governor is not required to ask the advice of the Council in forming his opinion. He may refuse to pardon without first referring the matter to the Council. But if he desires to grant a pardon, he must take the advice of the Council before undertaking to act. . . . The power to pardon as vested in the Governor is not absolute but conditional, and that condition is that it shall be exercised in accordance with the advice of the Council. . . . The same principle applies whether the act be a complete or a modified pardon. A commutation of sentence, which is the substitution of a lighter for a more severe punishment, is an exercise of the pardoning power and must be in accordance with the Constitution. It is an act of the Governor which becomes effective only when concurred in by the Council.1

C. IN OTHER STATES HAVING COUNCIL.

In New Hampshire, the provision is 'dentical with that of Massachusetts.

In Maine, the Governor has power, "with the advice and consent of the Council, to remit, after conviction, all forfeitures and penalties, and to grant reprieves, commutations and pardons, except in cases of impeachment, upon such conditions and with such restrictions and limitations, as may be deemed proper, subject to such regulations as may be provided by law, relative to the manner of applying for pardons. And he shall communicate to the Legislature at each session thereof, each case of reprieve, remission of penalty, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, the date of the reprieve, remission, commutation or pardon, and the conditions, if any, upon which the same was granted."

1 The Opinion of the Justices, 210 Mass. 609, 611. See also Opinion of the Justices, 190 Mass. 616. 2 Constitution of New Hampshire, 1902, Art. 51.

Constitution of Maine, Part I, Art. V, Sect. 11.

In twenty-five States, the Governor has sole power to commute.1 In thirty-two States, he has sole power to pardon, except in cases of treason or impeachment, or both.2

In twenty States, he has sole power to remit fines and forfeitures.3 In forty States, he has sole power to grant reprieves.*

2. In the Governor and Board of Pardons.

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In seven States, the Governor has power to commute on recommendation of the Board of Pardons," in conjunction with it, or with the approval of the Board or the Council.7

8

In ten States, the Governor has power to pardon on recommendation of the Board of Pardons, in conjunction with it, or with the approval of the Board or the Council.10

1 Alabama (Board of Pardons advisory only), Arkansas, Arizona, California (but neither Governor nor Legislature to have power to grant commutation of sentence in any case where convict has been twice convicted of felony, except upon written recommendation of a majority of the judges of the highest court), Colorado, Georgia, Iowa, Illinois, Indiana, Kentucky, Michigan, Missouri, Nebraska, North Carolina, New York, Ohio, Oklahoma, Oregon, South Carolina, South Dakota (where sentence is for 2 years or less, or fine is $200 or less), Texas, Virginia, West Virginia, Wisconsin, Wyoming.

* Alabama (Board of Pardons advisory only), Arkansas, Arizona, California (but neither Governor nor Legislature to have power to grant pardon in any case where convict has been twice convicted of felony, except upon written recommendation of a majority of the judges of the highest court), Colorado, Georgia, Iowa, Illinois, Indiana (but Legislature may create council of officers of State without whose consent Governor may not pardon), Kansas, Kentucky, Maryland, Michigan, Mississippi, Missouri, Nebraska, New Mexico, North Carolina, New York, Ohio, Oklahoma, Oregon, South Carolina (but Legislature may create council to advise Governor), South Dakota (where sentence is for 2 years or less or fine is $200 or less), Tennessee, Texas, Virginia, Vermont, West Virginia, Washington Wisconsin, Wyoming.

Alabama, Arkansas, Delaware, Georgia, Iowa, Indiana, Kentucky, Maryland, Mississippi, New Mexico (no fine, penalty or judgment against an officer to be remitted), Oregon, Pennsylvania, South Carolina, South Dakota (if fine less than $200), Texas, Virginia, Vermont, West Virginia, Washington, Wyoming.

Alabama (Board of Pardons advisory only), Arkansas, Arizona, California, Colorado, Connecticut (not exceeding end of next session of Legislature), Delaware (not exceeding 6 months), Florida (not exceeding 60 days), Georgia, Illinois, Indiana, Iowa, Idaho (not to extend beyond next session of Board of Pardons), Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey (not exceeding 90 days after conviction), New York, North Carolina, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island (not exceeding end of next session of Legislature), South Carolina, South Dakota, Tennessee, Texas, Utah (not to extend beyond next session of Board of Pardons), Virginia, West Virginia, Wisconsin, Wyoming.

* Delaware, Louisiana, Pennsylvania, South Dakota (if sentence is capital punishment or imprisonment for life or for more than 2 years or a fine of more than $200).

North Dakota.

7 Maine, Montana.

Delaware, Louisiana, Pennsylvania, South Dakota (if sentence is capital punishment or imprisonment for life or for more than 2 years or a fine of more than $200).

• Minnesota, North Dakota.

10 Indiana (Legislature may create council of officers of State without whose consent Governor shall not pardon), Maine, Montana, Rhode Island (with consent of Senate).

In six States, the Governor has power to remit fines and forfeitures on recommendation of the Board of Pardons,' in conjunction with it, or with the approval of the Board or the Council.3

In three States, the Governor has power to grant reprieves in conjunction with, or with the approval of the Board or the Council.5

3. In Board of Pardons alone.

In four States, the Board of Pardons has power to commute. In five States, the Board of Pardons has power to pardon.

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8

In five States, the Board of Pardons has power to remit fines and forfeitures.

Nowhere has the Board of Pardons power to grant reprieves.

4. In the Legislature alone.

Connecticut is the only State in which the Legislature has sole power to grant pardons.

Twenty-one States have constitutional provisions prohibiting the remission of fines or forfeitures by special, local or private law."

IV. COMPOSITION OF BOARDS OF PARDON.

Sixteen States have separate boards of pardon constituted as follows:

Alabama: Attorney-General, Secretary of State, Auditor.

Delaware: Chancellor, Lieutenant-Governor, Secretary of State, Treasurer, Auditor.

Florida: Governor, Secretary of State, Attorney-General, Comptroller, Commissioner of Agriculture.

Idaho: Governor, Secretary of State, Attorney-General.

Louisiana: Lieutenant-Governor, Attorney-General, presiding judge of Court of Conviction.

Maine: Governor, Council.

Massachusetts: Governor, Council.

1 Louisiana, South Dakota (where fine exceeds $200).

2 North Dakota.

• Maine, Mississippi (with consent of Senate), Montana.

4 North Dakota, Minnesota.

5 Maine.

Florida, Idaho, Nevada, Utah.

7 Florida, Idaho, Nevada, New Jersey, Utah.

8 Florida, Idaho, Nevada, New Jersey, Utah.

Alabama, Arizona, California, Colorado, Idaho, Illinois, Kentucky, Louisiana, Minnesota, Missouri, Montana, New Mexico, North Dakota, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Washington, West Virginia, Wyoming.

Minnesota: Governor, Attorney-General, Chief Justice of highest court.
Montana: Secretary of State, Attorney-General, Auditor.

Nevada: Governor, Attorney-General, justices of highest court.

New Hampshire: Governor, Council.

New Jersey: Governor, Chancellor, judges of highest court.

North Dakota: Governor, Attorney-General, Chief Justice of highest court, two qualified electors appointed by the Governor.

Pennsylvania: Lieutenant-Governor, Secretary of State, Attorney-General, Secretary of Internal Affairs.

South Dakota: Secretary of State, Attorney-General, presiding judge of court of conviction.

Utah: Governor, Attorney-General, justices of highest court.

From the above tabulation, it will be seen that in ten of the sixteen States having a Board of Pardons the Governor is a member of it.

V. PROCEDURE AND REGULATIONS.

The constitutional provisions as to procedure in the matter of pardons are on the whole couched in general terms. The most common provision is to the effect that the power to grant pardons, commutations, remissions and reprieves shall be subject to the regulations prescribed by law relative to the manner of applying therefor; or merely subject to regulations prescribed by law. A few constitutions have detailed provisions requiring publication of notice of the filing of the application,3 or of the time and place of hearing.1 A few constitutions require a "full" 5 or public hearing before the Board, or provide that the sessions of the Board shall be prescribed by the Legislature, or require the opinion of the Board to be in writing or provide that the Board shall meet on the call of the Governor. Such detailed provisions as these are to be found chiefly in the constitutions of the newer States.

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1 California, Colorado, Florida, Georgia, Idaho, Illinois, Maine, Michigan, Missouri, Nebraska, Nevada, North Carolina, North Dakota, New York, Ohio, South Dakota, Utah, Wisconsin, Wyoming.

* Arizona, Iowa, Kansas, Minnesota, New Mexico, Oklahoma, Oregon, Washington.

Idaho, Maryland, Mississippi, Montana.

Idaho, Montana, Pennsylvania, Utah.

Delaware, Idaho, Montana, Pennsylvania, South Dakota, Utah.

Alabama, Idaho, Montana, Pennsylvania, South Dakota, Utah.

Idaho, Montana.

* Alabama, Delaware, Louisiana, Pennsylvania, South Dakota. • Alabama.