VI. REPORT OF ACTION.

3

The constitutions of nearly all the States require the Governor or the Board of Pardons to report to the Legislature, either at each regular session thereof,1 biennially or annually, each case of commutation, pardon, remission or reprieve and the details thereof. A few require that a report, in more or less detail, be filed in the office of the Secretary of State; one merely provides that the application and decision shall be open to public inspection; 5 one that the Governor shall submit to the Legislature his reasons for rejecting the recommendation of the Board; and one that he shall report each case to either house whenever required."

4

6

The most common provision of this nature is that the Governor or Board shall communicate to the Legislature at each regular session each case of commutation, pardon or reprieve granted, or fine, penalty or forfeiture remitted, stating the name of the convict, the crime of which he was convicted, the sentence, its date, the date of commutation, pardon, remission or reprieve, and the reasons for granting the same.

In Massachusetts, although the Constitution does not require a report of action, the same result is reached in another way. In compliance with the request contained in Chapter 50 of the Resolves of the General Court of 1860,8 the Governor transmits annually to the Legislature a list of all pardons granted during the year preceding. The report of each case sets out substantially the same facts as are enumerated in the detailed provision of the Constitution of Maine relating to report of action, and in the constitutions of the other States here discussed. So long, therefore, as the Governor and Council comply with that request of the Legislature, there is no need of incorporating into the Constitution any detailed provision requiring report of action. Whether the Governor and Council must

1 Alabama, Arkansas, Ca lifornia, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Maine, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, Wyoming.

2 North Carolina.

3 Colorado, New York, Wisconsin.

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

Kentucky.

6 South Carolina.

7 Maryland.

8 "Resolved, That the Governor and Council be requested, hereafter, in the month of January, in each year, to communicate to the General Court a list of the pardons granted during the year next preceding, with such detailed statements as in their judgment the public good may require."

See page 9, ante.

comply is almost a moot question, since it is highly improbable that they would refuse to meet so reasonable a request, especially after having pursued an opposite course for more than a half-century.

No such report is required by the Constitution from the President of the United States, nor from the executives of the remaining thirteen States.1

VII. CHANGES PROPOSED IN THE CONVENTION OF 1853.

The Convention of 1853 having decided to retain the Governor's Council as part of the frame of government, various changes in connection with the exercise of the pardoning power were suggested and debated, but none were adopted.2 Most of the provisions suggested are to be found in the constitutions of other States.

The following is a summary of the proposed reforms and the arguments presented on both sides in the debates thereon:

A. Publication of notice of application, or of time and place of hearing, or both.

Arguments in support:

1. Increased feeling of safety in the community resulting from the opportunity to know of the application and to present objections. 2. The Governor and Council are enabled to secure more complete information, and are protected against mistakes in their decision. 3. The Governor and Council should hear both sides of the case instead of only one side.

4. Added expense would be trivial and could be borne by the Commonwealth.

Arguments in opposition:

1. An absolute pardon restores the criminal to his civil rights, and is commonly granted after he has gone forth from prison and established a good reputation among his fellow citizens. "Now, what will be the effect of giving notice in such a case? The effect will be to bring back the remembrances of the transaction which made the person an offender, thus blighting his hopes forever, after he has endeavored by years of unceasing labor to regain the confidence of his friends and neighbors." 3

1 Arizona, Connecticut, Illinois, Kansas, Louisiana, Minnesota, Mississippi, New Hampshire, New Jersey, New Mexico, Rhode Island, Tennessee, Vermont.

• Debates in the Massachusetts Convention, 1853, I, 966-986.

Debates in the Massachusetts Convention, 1853, I, 974 (Davis).

2. It is a mark of distrust of the Governor and Council, and a reflection upon their performance of their duty.

3. Many criminals would be barred from executive clemency because of inability to obtain funds to publish notice and to secure the necessary copies of the record of the case.

4. Advisable to exclude from the Constitution matters of procedural detail, which are more adapted to legislative action.

B. Notice to the prosecuting attorney or to the Attorney-General of each application for pardon, and requiring his presence at the hearing.

Arguments in support:

1. Such officer is acquainted with the side of the case which the Governor and Council are not likely to hear in an ex parte proceeding, and can therefore assist them in avoiding mistakes in decision. 2. Increased feeling of safety in the community because of opportunity of the prosecuting officer to present objections.

1. Whenever necessary the Governor and Council call in the prosecuting officer anyway.

2. The prosecuting officer may have become so wrought up over the case as to be unduly prejudiced against the petitioner, and thus possibly defeat the purposes of justice.

3. Advisable to exclude from the Constitution matters of procedural detail, which are more adapted to legislative action.

4. The most common classes of petitions do not involve the merits of the trial. They are cases (a) where there are circumstances which mitigate the offence which the convict technically committed; (b) where the punishment imposed is imprisonment for a long term of years, and it is alleged that there has been a complete reform of character in the convict; and (c) where the convict is very near death, and the illness or disease is such that he can be removed from prison without injury and be permitted to die among his family.

BIBLIOGRAPHY.

Bishop, J. P., New Commentaries on the Criminal Law. 2 vols. Chicago, 1892.

Blackstone, Commentaries (Sharswood, ed.). 2 vols. Philadelphia, 1881. Debates and Proceedings in the Massachusetts Constitutional Convention. 3 vols. Boston, 1853.

New York State Constitutional Convention Commission, Index Digest of State Constitutions. New York, 1915.

Thorpe, F. N., The Federal and State Constitutions. 7 vols. Washington, D. C., 1909.

Finley, J. H., and Sanderson, J. F., American Executives and Executive Methods. New York, 1908.

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