PARLIAMENTARY PAPERS.

Evening Star, Issue 2950, 2 August 1872, Page 4

PARLIAMENTARY PAPERS.

No. 111,

THE GOVERNOR'S POWER TO GRANT PARDONS. 11l the volume of despatches from the Secretary of State for the Colonies to the Governor, is a despatch which claims attention on account of the importance of the question raised by it, and because of the interest it excited at the time the matter it relates to was before the public, over eighteen months ago. The subject is the Muston pardon case. Now the facts of that case were these When the famous telegraph libel case was heard in the Kesident Magistrate’s Court, Dunedin, of course the lirst step in the prosecution was to prove the authorship of the alleged libels. This could only be done by the testimony of employes of the Otajo Bail;/ Times, in which they were published. But here a difficulty arose. These witnesses were equally liable with the dcicndant, as being concerned in the publication ; and they accordingly refused to answer any questions on the ground that they might otherwise be led to criminate themselves. Thereupon the counsel for the prosecution produced a free pardon, ready signed and sealed, made out on behalf of Mr Muston, the sub editor 1 of the Daily Times , who was placed in the witness-box, and, the plea of liability being quashed by the t nder of the pardon, was compelled to give his evidence. Now the Governor’s commission only empowers him to pardon offenders after conviction ; and the question was immediately raised, whether he had power to issue a pardon on speculation, for an offence with which the witness had not been even so much as charged, and which was not proved to have been ever committed. Mr Barton it will bo remembered wrote to Earl Kimberly complaining of the course taken by the Govern* meut, and submitted to his Grace the opinions of the principal members of the Dunedin bar, that his letter “ disclosed a lit case for enquiry by the proper authorities. ” Subsequent to the issue of the trial two facts came out. First that the Attorney-General, under whose advice the pard n was issued, acknowledged that his advice was given “ without consideration of the terms of the Governor’s commission and that he “undoubtedly out to have pointed out that the Queen’s prerogative as to pardon seemed not to have been to its full extent delegated to the Governor.” Second, that the pardon issued to Mr Muston was granted in the absence of the Governor on the West Coast, and that Ministers were ia the habit of procuring from his Excellency, when he leaves Wellington, a few blank pardons, ready signed, to be available in cases of emergency (explained

by Mr Gisborne as being those in which the immediate release of prisoners is necessitated by regulations in respect of good conduct, by medical causes, or by other unforeseen circumstances); and that it was one of these which Ministers used, without his Excellency’s knowledge or permission. In the first place, let us observe that Earl Kimberley, writing under date October, 1871, declines to offer any opinion upon Mr Barton’s case pending legal proceedings; but the Governor having in his despatch home expressed the hope that if it should he decided that the power of granting pardons before actual conviction has not been conferred on a Governor, the Imperial Government would take into consideration whether the power referred to might not advantageously be given to the Governors of Colo-

aies under such conditions as may be thought expedient, the attention of her Majesty’s Government was directed to the aspects of the subject, The cases dealt with were classed thus ;—Pardon of convicted offenders ; pardon or security of immunity io a witness fearing to criminate himself; pardon of an , accomplice included in a prosecution and ' turns Queen’s evidence; promise of pardon to an unknown person concerned in a crime, but not being the principal offender, in order to obtain such information and evidence as shall lead to the apprehension and conviction of the principal; and promise of pardon to political offenders or enemies of the State. Alluding to the first class of cases, Earl

Kimberley rays the present commission of the Governor gives him full power to deal with it ; and he administers to Sir George Bowen a severe rebuke for permitting the use of blank pardons to be tilled up and used during his absence from the scat of Government—- “ a practice which is irregular, and cannot be permitted in any case.” The Governor is bound to examine personally each case in which he is called upon to exercise the powers entrusted to him under the delegation of the Queen’s prerogative, though, of course, he

must pay due regard to the advice of his Ministers, and is not to grant any pardon without receiving their advice thereupon. Under the second head, it is absolutely necessary that means should exist by which the evidence of a witness fearing to criminate himself may be obtained ; but, says Earl Kimberley, this may be better provided for by local legislation. The judge presiding at the trial should be empowered to give a certificate that the evidence of the witness was required for the ends of justice, and was satisfactorily given 5 such certificate to be a bar to all proceedings in respect to the matters upon which that witness was examined. In respect to the third head, no local legislation nor alteration of the Governor’s commission is needed, it being considered that the practice in England on the point may properly be adopted in the Colony. In respect to the fourth bead, future commissions will vest in the Governor the power of granting a pardon to any accomplice, not being the actual perpetrator of the crime, who shall give evidence leading to the apprehension and conviction of the principal offender ; but no supplementary commission for the purpose will be issued, as the issue of a proclamation by the Executive Council that they will recommend the granting of a pardon to such person will have the desired effect. Kor is any change in respect to the promise of pardon to political offenders considered necessary. Earl Kimberley concludes his despatch by expressing the hope that thesa explanations will remove any doubt as to the exercise of the prerogative of pardon in the Colony.