Vol. I.] COMMONWEALTH v. LOCKWOOD. [No. 3. G. A. Somerby & W. S. Gardner (T. H. Sweetser with them), for the defendant. J. W. May, district attorney, for the Commonwealth. GRAY, J. This case presents an interesting question of the extent of the power conferred by that provision of the constitution of the Commonwealth, which declares that "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." Const. Mass. c. 2, § 1, art. 8. The nature of this question, involving a definition of the limits of the constitutional authority of the executive department of the government, and the doubts which some of us at first entertained in relation to it, justify, if they do not require, a full statement of the reasons and precedents for the conclusion at which upon mature consideration we have unanimously arrived. The ordinary legal meaning of "conviction," when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while "judgment" or "sentence" is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained. The authorities upon this point are so numerous, that it will be sufficient to cite a few of those which show that such was the legal understanding and use of these words at the time of the adoption of our constitution. Upon a question of the meaning of legal language as used at that time, there is no higher authority than Blackstone's Commentaries, which were published in 1765, and of which Edmund Burke, in his Speech on Conciliation with the Colonies, in 1775, said that he had heard that nearly as many copies had been sold in America as in England. Blackstone uniformly speaks of the verdict of a jury upon a plea of not guilty as constituting the "conviction," even while the case is still open to a motion for a new trial or in arrest of judgment. After discussing the granting of a new trial when the accused has been found guilty by the jury, and the conclusive effect of an acquittal, he adds: "But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted. Which conviction may accrue two ways: either by his confessing the offence and pleading guilty; or by his being found so by the verdict of his country." 4 Bl. Com. 362. "After trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance; of which the principal is the benefit of clergy." Ib. 365. "We are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misdemeanors as are either too high or too low to be included within the benefit of clergy; which is that of judgment.” "Whenever he appears in person, upon either a capital or inferior conviction, he may at this pe Vol. I.] COMMONWEALTH v. Lockwood. [No. 3. riod, as well as at his arraignment, offer any exception to the indictment, in arrest or stay of judgment." Ib. 375. After describing the effect of "sentence of death, the most terrible and highest judgment in the laws of England," as attainting the criminal, and incapacitating him to be a witness, or to perform the functions of another man, he observes: "This is after judgment; for there is great difference between a man convicted and attainted; though they are frequently through inaccuracy confounded together. After conviction only, a man is liable to none of these disabilities; for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed; he may obtain a pardon or be allowed the benefit of clergy." Ib. 380, 381. When judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside." Ib. 393. "General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony, but the conviction or attainder must be particularly mentioned." Ib. 400. "A pardon may either be pleaded upon arraignment, or in arrest of judgment, or in bar of execution." Ib. 402. The terms of our constitution clearly indicate that its framers had in mind these rules of the common law. The word "conviction" was used in the same sense in many public acts of the government of this State, after it had thrown off the authority of the crown, and before the adoption of the constitution of the Commonwealth. By St. 1776, c. 32, § 18, it was provided that "no miswriting, misspelling, false or improper English, after conviction" upon an indictment for treason, should "be any cause to stay or arrest judgment thereupon." By St. 1776, c. 44, § 1, any person offending against the act of 1775, c. 9, to prevent the forgery of bills of public credit, "and being thereof convicted as in said act provided, shall be adjudged guilty of felony and suffer the pains of death." By St. 1776, c. 48, § 3, any person transported out of the State as a public enemy, and returning during the war without license of the general court, should, " on conviction thereof before the superior court of judicature," "be adjudged guilty of felony, without benefit of clergy." And by the St. of January 25, 1779, c. 3, any inhabitant of this State, committing treason without the limits thereof, might be tried therefor in the county whereof he was an inhabitant, and, "if thereof convicted in the same county, be adjudged and punished in the same manner as if the said offence had been therein committed." Mass. State Laws, 1775-1780, pp. 110, 127, 136, 211. The death warrants of the same period, issued by the council exercising the executive power, preserve the same distinction between conviction by the jury and judgment of the court. For example, the warrant for the execution of Bathsheba Spooner and others, for the murder of her husband in Worcester in 1778, recites that the defendants "were by verdict of our said county of Worcester convict, and thereupon" "were by our justices of our said court adjudged to suffer the pains of death." 2 Chandler's Criminal Trials, 378. The first crimes act of the United States begins with these words: "If any person or persons, owing allegiance to the United States of America, Vol. I.] COMMONWEALTH v. LOCKWOOD. [No. 3. shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. U. S. St. 1790, c. 35, § 1. Section 31 of the same act declares that "the benefit of clergy shall not be used or allowed upon conviction of any crime for which, by any statute of the United States, the punishment is or shall be declared to be death." And our own St. of 1784, c. 56, § 2, provided that "if any person shall be convicted of any crime wherein by law the plea of benefit of clergy was heretofore allowed, and for which, without such benefit of clergy, he must have been adjudged to suffer the pains of death," he should be otherwise punished as therein prescribed. See also Sts. 1782, c. 9, § 1; c. 14, §3; 1784, c. 9, § 4; cc. 46, 52, 58; c. 67, § 11; c. 68. Mr. Dane, who was admitted to the bar before the adoption of the constitution, and was peculiarly learned in the law of his time, says: “A man is convict by verdict, but not attainted before judgment." Pardon is another special plea in bar." "By pleading a pardon in arrest of judgment, there is an advantage, as it stops the corruption of blood, by preventing the attainder." "Conviction is on confession or verdict." 6 Dane Ab. 534, 536. See also 7 Dane Ab. 339, 340. In Commonwealth v. Richards, 17 Pick. 295, it was held that an appeal allowed by statute from the court of common pleas in a criminal case, to be claimed at "the court before which such conviction shall be had," must be claimed before the end of the term at which the verdict was returned; and Chief Justice Shaw, in delivering the opinion of the court, said: “It has generally been considered, we believe, that, as the sentence is the final act in a criminal proceeding, it constitutes the judgment, and it is only from final judgments that appeals are to be taken. But though such is the general rule of law, we think it has been changed by this statute, and that the statute itself has made a distinction between a conviction and a judgment. In general, the legal meaning of conviction' is, that legal proceeding of record, which ascertains the guilt of the party, and upon which the sentence or judgment is founded, as a verdict, a plea of guilty, an outlawry, and the like." See also Commonwealth v. Andrews. 2 Mass. 409, and 3 Mass. 126, 131, 133. The use of words in our modern statutes is not the highest evidence of their meaning at the time of the adoption of the constitution. But it may be observed that the Rev. Sts. c. 123, § 3, and the Gen. Sts. c. 158, § 5, provide that "no person indicted for an offence shall be convicted thereof, unless by confession of his guilt in open court, or by admitting the truth of the charge against him by his plea or demurrer, or by the verdict of a jury accepted and recorded by the court." It is by the defendant's own confession, plea, or demurrer, by the verdict, that he is here declared to be "convicted," without any action of the court in either alternative, except, in the latter, the mere formal acceptance and recording of the verdict, which implies no adjudication of the court upon the defendant's guilt. See also Rev. Sts. c. 137, § 11, and Gen. Sts. c. 172, § 16; Rev. Sts. c. 139, and Gen. Sts. c. 174, passim. COMMONWEALTH v. LOCKWOOD. [No. 4. Vol. I.] When indeed the word "conviction" is used to describe the effect of the guilt of the accused as judicially proved in one case, when pleaded or given in evidence in another, it is sometimes used in a more comprehensive sense, including the judgment of the court upon the verdict or confession of guilt; as, for instance, in speaking of the plea of autrefois convict, or of the effect of guilt, judicially ascertained, as a disqualification of the convict. And it might be held to have the same meaning in the somewhat analogous case in which the constitution provides that "no person shall ever be admitted to hold a seat in the legislature or any office of trustor importance under the government of this Commonwealth, who shall in the due course of law have been convicted of bribery or corruption in obtaining an election or appointment.' Const. Mass. c. 6, art. 2. See Case of Falmouth, Mass. Election Cases (ed. 1853), 203. But Blackstone says: "The plea of autrefois convict, or a former conviction for the same identical crime, though no judgment was ever given or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment." 4 Bl. Com. 336. And it is still an open question in this Commonwealth, whether a verdict of guilty, rendered upon a good indictment, and which has not been set aside, will or will not, before judgment, support a plea of autrefois convict. 6 Dane Ab. 533. Commonwealth v. Roby, 12 Pick. 496, 510; Commonwealth v. Lahy, 8 Gray, 459, 461; Commonwealth v. Harris, Ib. 470, 473. At the time of the adoption of the constitution, the word "conviction" was ordinarily used to express the verdict only, even in treating of the disqualification of the convict as a witness. Lord Mansfield, for example, in 1774, where a witness was objected to as incompetent because he stood convicted of perjury, the record of which conviction was produced, said: "A conviction upon a charge of perjury is not sufficient, unless followed by a judgment; I know of no instance in which a conviction alone has been an objection." Lee v. Gansel, Cowp. 1, 3. In the earlier cases in this Commonwealth, the word "conviction " was used in the same sense as applied to such a question, even before it had been settled whether a judgment was necessary to complete the disqualification of the witness. Upon the trial in this court in 1788 of an indictment against two for perjury, to which one pleaded guilty and was offered as a witness for the Commonwealth against the other, Mr. Justice (afterwards Chief Justice) Dana states, in his manuscript note of the case, "To whom it is objected that, standing convict of the crimen falsi, he is disqualified to be a witness. It is answered that conviction, though of the crimen falsi, is no disqualification, without it be followed by an infamous punishment; or at least until after judgment." The witness was excluded by a divided court. Commonwealth v. Manley & Willis, Bristol, October term, 1788. So in Cushman v. Loker, 2 Mass. 106, the court said, "It is now settled that nothing short of a conviction on an indictment for crimen falsi, and a judgment on the conviction," "is a sufficient objection to the competency of a witness." And in the latest case on that subject, in which it was held that a verdict, without judgment, was not such a "conviction " as could be proved under Gen. Sts. c. 131, § 13, in order to affect the credit of a witness, it was said: "In its most common use, it signifies the VOL. I. 10 Vol. I.] COMMONWEALTH v. LockwOOD. [No. 4. finding of the jury that the prisoner is guilty." ham, 99 Mass. 420. Commonwealth v. Gor It was argued by the learned attorney for the Commonwealth, that the words of the constitution, that no pardon granted before conviction "shall avail the party pleading the same," imply that it cannot be taken advantage of after verdict in the first prosecution for the offence in question, because the time for pleading is then past. But "pleading," as here used, may well include any suitable form of bringing the pardon to the notice of the court, by plea, motion, or otherwise. Coke, Holt, Mansfield, and Blackstone, all speak of "pleading" a pardon after the verdict and even after the judgment. 3 Inst. 235. Rex v. Parsons, 1 Freem. 501; The King v. Beaton, 1 W. Bl. 479; 4 Bl. Com. 337, 376, 402. In at least one instance before the superior court of judicature of the Province of Massachusetts Bay, a man who had been indicted for murder and found guilty by the jury, and his case continued from term to term, upon a motion for a new trial, until he had obtained a pardon from the king, was then, as the record states, "brought again into court, and, being set to the bar, upon his knees he pleads his majesty's most gracious pardon of the offence aforesaid, a certificate of which from the secretary of state's office, being produced, is allowed." The King v. Richardson, Řec. 1772, fol. 15. And, as we shall presently see, there are many similar records since the adoption of the constitution. It is not easy to ascertain the source of the constitutional restriction of the pardoning power. The acts of the English Parliament contained no like provision; and the histories of Massachusetts, and such imperfect notes of the debates in the convention which framed the constitution of the Commonwealth as have come down to us, are silent upon the subject. The English Bill of Rights of 1688 declared "that all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void." St. 1 W. & M. sess. 2, c. 2, § 12. That article did not affect the power of the sovereign to remit fines and forfeitures and pardon offenders; but was aimed at the illegal practice of granting away fines and forfeitures before they had actually accrued; and an inquest or inquisition of office by the jury was a complete conviction within the contemplation of the bill of rights. 3 Bl. Com. 259; 4 Bl. Com. 301. By the common law, a conviction of felony by verdict or confession vested in the king the goods and chattels of the felon, although his lands were not forforfeited until attainder by judgment. 4 Bl. Com. 373,* 387. The house of commons in 1679, and again in 1689, resolved that a royal pardon could not be "pleaded in bar of an impeachment." 4 Hatsell's Prec. 192, 193, 277. And in 1700 the act of settlement of 12 & 13 W. III. c. 2, § 3, declared "that no pardon under the great seal of England be pleadable to an impeachment by the commons in parliament." "But." Blackstone says, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." 4 Bl. Com. 399. There is no doubt that the king can pardon after sentence upon an impeachment. 7 Parl. Hist. 283; 4 Hatsell's Prec. 296 note; 2 Hallam's Const. Hist. c. 12 (7th ed.), 414. And the question of his power to pardon after a vote of guilty and before sentence does not appear to have arisen in England. But in proceedings |