OPINION OF THE JUSTICES TO THE GOVERNOR AND COUNCIL., 301 Mass. 615

On December 14, 1938, the Justices returned the following answers:

To His Excellency the Governor and The Honorable Council of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court, in reply to your order of December 8, 1938, a copy of which is hereto annexed, respectfully express their opinion as follows:

The questions of law upon which the opinion of the Justices is required relate, as appears from the order, to the power of the Governor, "by and with the advice of council," to pardon Edmund L. Dolan and J. Walter Quinn, who have been adjudged by the Superior Court guilty of contempt of court and have applied for pardons. We assume, though the order leaves the matter somewhat in doubt, that the Governor has under consideration the exercise of the power of pardon in favor of said Dolan and

Page 617

said Quinn, and the submission of his action in this respect to the Council for advice which might make such action effective (see Opinon of the Justices, 190 Mass. 616; Opinion of the Justices, 210 Mass. 609, 611; Juggins v. Executive Council, 257 Mass. 386), and that an opinion on the questions of law submitted is desired "respecting pending matters, in order that assistance may be gained in the performance of present duties." See Opinion of the Justices, 216 Mass. 605. See also Answer of the Justices, 290 Mass. 601, 603. The order is not to be construed as submitting to the Justices for their opinion questions of fact or of the wisdom or expediency of granting the pardons applied for, or purely abstract questions of law, none of which questions could properly be answered. Constitution, Part II, c. 3, art. 2. Opinion of the Justices, 120 Mass. 600. Opinion of the Justices, 126 Mass. 557, 566. Answer of the Justices, 148 Mass. 623, 626. Opinion of the Justices, 190 Mass. 611, 613. Answer of the Justices, 217 Mass. 607, 611-612. Dinan v. Swig, 223 Mass. 516, 519. We answer the questions of law submitted so far as they relate to the pweer to pardon said Dolan and said Quinn, and in the light of the facts disclosed by the order and by the proceedings in the full court on the writs of error referred to in such order.

The power to pardon is conferred by the Constitution of the Commonwealth, Part II, c. 2, Section 1, art. 8, which reads 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 council: but no charter of pardon, granted by the governor, with advice of the 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."

The power to pardon so conferred extends only to "offences." Consequently it is important to determine whether the contempts of which said Dolan and said Quinn were adjudged guilty constitute "offences" within the meaning of the constitutional provision. We think that they do.

Page 618

Contempts have been classified broadly as civil and criminal (Hurley v. Commonwealth, 188 Mass. 443, 445; New Your Central Railroad v. Ayer, 253 Mass. 122, 128-129; Root v. MacDonald, 260 Mass. 344, 355-357; Blankenburg v. Commonwealth, 260 Mass. 369, 372-373), though it has been said of proceedings for contempt that "it is plain that they are . . . not strictly either civil or criminal, as those terms commonly are used," New York Central Railroad v. Ayer, 253 Mass. 122, 129; that "It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both, Bessette v. W. B. Conkey Co. 194 U.S. 324, 329, quoted in Gompers v. Bucks Stove & Range Co. 221 U.S. 418, 441, and in Root v. MacDonald, 260 Mass. 344 359; see also Hurley v. Commonwealth, 188 Mass. 443, 445, and Root v. MacDonald, 260 Mass. 344, 358, 363; and that "The use of the word `criminal' in connection with contempts . . . is not strictly accurate, because numerous incidents of criminal trials are inapplicable to trials for contempt. . . . Nevertheless, it has come into common use." Root v. MacDonald, 260 Mass. 344, 357, see also page 365.

The contempts of which said Dolan and said Quinn were adjudged guilty, and for which they were sentenced to confinement in the common jail, consisted, in substnace, of obstucting and interfering with the course of justice by corrupting and unlawfully influencing persons serving as jurors in the Superior court at a time when it was possilbe that some or all of them would be drawn to sit in the trial of indictments in which said Dolan and said Quin were charged with having committed crimes, so that a fair trial of the indictments at the time set therefor was made impossible.

Such contempts clearly are in the category of criminal contempts. Of somewhat similar contempts it was said in Hurley v. Commonwealth, 188 Mass. 443, 447: "Contempts of this kind are most dangerous assaults upon the integrity of our courts in the trial of cases. It is inconceivable that any court would treat such an offence as

Page 619

anything less than a criminal contempt of the gravest character." And it was also said in that case that "it is universally recognized that an offence, committed directly against the authority and dignity of the court, as distinguished from mere disobedience of an order made for the benefit of a party, is therefore called a criminal contempt. The punishment of such an offence is solely for the vindication of public authority and the majesty of the law." Page 445. See also Blankenburg v. Commonwealth, 260 Mass. 369, 372. The contempts here in question fall within this description. They were not wrongs to any individual suitor or suitors. This is particularly clear since, unlike many instances of criminal contempts (see, for example, Blankenburg v. Commonwealth, 260 Mass. 369), the cases in connection with which the contempts occurred were criminal cases and consequently brought by the Commonwealth. Nor were they wrongs to any judge as a person. Blankenburg v. Commonwealth, 272 Mass. 25, 37. United States v. Shipp, 203 U.S. 563, 574. Each of them was a "public wrong," a wrong to "organized society." Root v. MacDonald, 260 Mass. 344, 358. Blankenburg v. Commonwealth, 260 Mass. 369, 372, 373. And the proceedings were not remedial or coercive, but solely punitive. Blankenburg v. Commonwealth, 260 Mass. 369, 372, 373. In many aspects they were subject to the law governing criminal cases. Root v. MacDonald, 260 Mass. 344. For example, a sentence to punishment for such a contempt is a "judgment in a criminal case" which may be re-examined upon a writ of error under G. L. (Ter. Ed.) c. 250, Section 9. Hurley v. Commonwealth, 188 Mass. 443, 445. Blankenburg v. Commonwealth, 260 Mass. 369. In no respect are these contempts civil contempts.

It follows from what has been said that the contempts in question are, in substance and effect, "offences" against the Commonwealth. Indeed, this court, in language already quoted, has referred to such a contempt as an "offence." The controlling constitutional provision, moreover, does not use the word "offences" in a narrow sence, as is indicated by the fact that it was thought necessary to exclude

Page 620

expressly from the pardoning power persons convicted by impeachment, a form of conviction which does not preclude a further conviction for crime upon indictment. Constitution, Part II, c. 1, Section 2, art. 8. Hiss v. Bartlett, 3 Gray 468, 473. Strong support for the conclusion that the contempts in question are "offences" within the pardoning power conferred by the Constitution, Part II, c. 2, Section 1, art. 8, is found in the unanimous decision of the Supremem Court of the United States in Ex parte Grossman, 267 U.S. 87, where the opinion was written by Chief Justice Taft. Article 2, Section 2, clause 1, of the Constitution of the United States, except in cases of impeachment." The court held that the pardoning power so conferred extended to criminal contempts and said that "Nothing in the ordinary meaning of the words `offences against the United States' excludes criminal contempts" (page 115), though pointing out that "the term `offences is used in the Constitution in a more comprehensive sense than are the terms `crimes' and `criminal presecutions'" (page 117). This decision is entitled to great respect, and the reasoning of the opinion is highly persuasive with reference to the meaning and effect of the pertinent provision of the State Constitution. There is no significant difference in the language of the two constitutional provisions by which pardoning power is conferred. And they have substantially the same historical background in the light of which the language of the provisions is to be construed. We think that, with respect to criminal contempts such as are here in question, the decision in the Grossman case should be followed in interpreting the pardon clause of the Constitution of the Commonwealth. See also cases collected and discussed in Ex parte Grossman, 267 U.S. 87, 119. A narrower interpretation of this clause is not to be made by reason of the express provision contained in art. 30 of the Declaration of Rights that "the executive [department] shall never exercise the legislative and jusicial powers, or either of them." The pardon clause specifically confers the pardoning power upon the executive

Page 621

department and must be given its natural meaning. Whether there are criminal contempts of such kinds or committed in such circumstances that they so far tend to destroy the independence fo the judiciary that the pardon clause is not to be construed as including them. we need not inquire. Compare Ex Parte Grossman, 267 U.S. 87, 120, 121. We are of opinion that the criminal contempts here in question, though tending seriously to embarrass the courts, are not excluded from the pardon clasue for this reason.

Finally, the criminal contempts here in question are not expressly exluded from the pardon clause by the provisions thereof. Obviously they are not excluded by the provision relating to impeachment. And pardons hereafter granted would not be granted "before conviction." There were here not only findings of guilt -- comparable to verdicts in cases tried before juries -- but also sentences to punishment which are judgments. Hurly v. Commonwealth, 188 Mass. 443, 445. In Commonwealth v. Lockwood, 109 Mass. 323, it was decided that a verdict of a jury, though no sentence thereon had been imposed and exceptions thereto were pending which might result in the verdict being set aside, amounted to a "conviction" within the meaning of the pardon clause. That decision is controlling here. The judgments against said Dolan and said Quinn, though writs of error to reverse them does not preclude the granting of pardons to the person convicted.

This opinion is confined to criminal contempts such as are referred to in the order. Undoubtedly, purely civil contempts cannot be pardoned. See Ex parte Grossman, 267 U.S. 87, 121. We intimate no opinion with respect to contempts which partake of the nature both of civil contempts and of criminal contempts, or with respect to criminal contempts essentially different from those referred to in the order.

For the reasons stated we answer the first question "Yes" as applied to the specific matters referred to in the order, and the second question "Yes."

Page 622

By reason of illness, Mr. Justice Cox has been prevented from participating in the consideration of these questions and answers. Mr. Justice Ronan was Assistant Attorney General before his appointment as a Justice of this court, and acted as counsel in connection with the writs of error referred to in the order. He therefore asks to be excused from answering the questions.

FRED T. FIELD.

CHARLES H. DONAHUE.

HENRY T. LUMMUS.

STANLEY E. QUA.

ARTHUR W. DOLAN.