N.J. Constitutional Convention: Vol. 4, Page 440

Thursday, July 10, 1947 (Afternoon session)

of those issues that I have suggested that the Governor should exercise his authority in concert with an advisory board whose advice he should either be asked to accept voluntarily or perhaps compelled to consider.

MR. WINNE: Governor, you would add to the present powers the power of commutation after consultation with others?

GOVERNOR DRISCOLL: Speaking personally, I would not. Giving you the weight of opinion around the country, I would recommend it to you for your consideration. It is certainly a power that I would not enjoy having, speaking now as Governor.

MR. WINNE: It is apparently historically in the executive; I guess it goes back to the early times when the King's benevolence enabled him to pardon people. I myself wonder if it belongs there. I wonder if it doesn't belong in the judiciary, and I am quite willing to consider it, but I wondered if you, as the executive, have any thought that it did belong in the executive.

GOVERNOR DRISCOLL: I am sure you won't think me irreverant if I say that as I thought of this Convention, I have been inclined always to say: Not my will be done, but thine. I believe, however, that it would be a mistake to burden our courts with the particular duty which we are now discussing, because it is in essence not a judicial task. For example, it seems to me that it is the duty of the executive branch of government to apprehend an alleged criminal, not the duty of the court; to see to it that that criminal is properly charged; to present the evidence to the grand jury, and to prosecute the case before the appropriate court. All those duties should be performed by the executive branch of the government in cooperation with the judicial branch, but the responsibility is with the executive branch. That is proper because the people elect men to public office for certain reasons, and among those reasons is the maintenance of law and order and the protection of domestic tranquility. Now, it becomes the duty of the court following an indictment - and the indictment is part of the judicial process, I am sure you as a prosecutor will agree with me, and not part of the executive process - to hear the evidence and to dispose of the issues, and following a conviction to sentence the man. All of those questions, hearing the evidence, ruling on motions, sentencing, are part of the judicial process, and the purpose, of course, is to do justice. No question of clemency is involved. The purpose is to do justice.

The application for a pardon, however, does not involve justice in the sense that we use that term in the judicial process. It involves justice in the sense of clemency, what is right and wrong as between human beings as apart from abstract questions of law, and I think it would be a mistake to have a system which permitted a judge to say, "Well, I will sentence this man to jail for 20 years.

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