THE EXILE OF' GARDINER.

New Zealand Times, Volume XXX, Issue 4336, 11 February 1875, Page 3

THE EXILE OF' GARDINER.

(From the S, M. Herald , February 2.)

The despatch from Earl Carnarvon, which has reached the colony just as the Gardiner question has worked up its political crisis, is the commentary of the Secretary of State on that question of prerogative which was connected with the earlier stages of this controversy. This despatch is definite on two points; first, as to the locus of the responsibility in respect to the granting of pardons; and secondly, in respect of the policy of exiling prisoners. On both these points Earl Carnarvon has to express an opinion which is to some extent at variance with that of the Colonial Government, and therefore he ia expressly careful to guard himself against being supposed to imply any censure on either Governor or Government. But, while willing to recognise the importance of making the responsible Ministers in the colony responsible for their advice with respect to the pardons granted to prisoners, he will not admit that that responsibility should rest exclusively with them, or that pardon should' be considered as a branch of the local administration in the same sense in which the other details of government are so. On the contrary, he insists on it that the Governor is the representative of her Majesty, so far as concerns the exercise of the royal prerogative of pardon, and that this prerogative is delegated by her only to selected and trusty servants. In the mother country it is delegated to the Home Secretary. In the case of a colony it is impossible for her Majesty to delegate it in the same way personally to a Colonial Secretary, of whom she lias no knowledge, and in whose nomination she has no direct voice. In a colony the Governor alone can be her direct representative, and it is to the Governor, therefore, that she delegates the responsibility of this important prerogative. In fins respect, as in some others, the tact of the colony being a dependency makes it impossible to imitate precisely the form of procedure adopted in the mother country, where personal contact with the Sovereign is possible. Nor does Earl Carnarvon at all approve of the idea that the Ministerial responsibility is to be in any way got rid of or mitigated by informal consultations between the Governor and the Minister specially charged with the penal department. On the contrary, he intimates that the advice should be as specific, as clear, and as unmistakeable as in other cases. From this arrangement, rendered necessary by the fact that the royal prerogative could only be delegated to persona selected and named by her Majesty, it follows that both the Governor and the Cabinet will possess a responsibility in this matter ; it will not be halved between them, but each will possess it fully. Granting pardons is a branch of the local administration, and will be considered as such ; Ministers will have to decide what they think it right to recommend, and will have to make their recommendations dig* tinctly ; but before doing as they recommend, and exercising or refusing at their wish the Royal prerogative, the Governor will have to consider that he is the depositary of that prerogative for the time being, and that he is to exercise it, subject to hia own responsibility for doing it wisely. No amount of advice tendered to him would justify him in doing what he thought Ins Sovereign would disapprove.

It is obvious that, under the circumstances, there may possibly arise a collision between a Governor and bis Minister. It will be part of the duty of Governors always to exercise such tact in the performance of their duty as to prevent such collision, if possible ; and it will be the duty of judicious Ministers always to seek to avoid it. But still collisions may happen, and it is obvious that this kind of difficulty is one which attaches to the system of responsible government in the colonies, and which does not attach to it in England. It is one of the anomalies which arise out of importing into a dependency a system of government that is not really native to the soil, but that has been applied to our circumstances in a spirit of traditional attachment. It will rest with all those who have any share in government to do what lies in their power to prevent the theoretical difficulty from ever becoming a practical one. The cases will probably be very rare and exceptional in which the double responsibility will lead to a conflict that cannot be got over. It will be remherahered that Mr. Parkes, when laying down the doctrine—generally a sound one that responsibility and power should go together, demurred to any system in which he should be called upon to tender advice which might possibly not be followed. Earl Carnarvon’s reply, however, is to the effect, that this system must, be followed in this particular case, for the reasons that her Majesty's prerogative of pardon would otherwise rest with persona of whom her Majesty knew nothing. It is very seldom, however, that the pardoning of a criminal becomes a political question in the way this affair of Gardiner has done. This was a very unusual conjuncture of circumstances, and may not happen again for many a long year, and in fact it would not have happened at all if the principles now laid down in Earl Carnarvon’s despatch had been understood and acted upon twelve months’ ago. For in that case, instead of Mr. Parkes having an informal conversation for an hour, and leaving the Governor under a certain impression, there would have been distinct Ministerial advice tendered under definite Ministerial responsibility. According to Mr. Parkes’s statement in the House, if he had been asked to advise he would not have advised the immediate release of this particular criminal, and in that case it is probable that the Governor would have acted in accordance with the advice tendered to him, and the particular difficulty we have had to struggle with would never have arisen. If Mr. Parkes had been willing to take the responsibility of giving advice, and run the risk of having it not acted upon, he would have avoided the rock on which he has steered his Cabinet, and would probably now have still been Premier. Such advice had been tendered previously on some occasions, though not as a rule, and, under the circumstances, it would have been more discreet, as events have shown, if this had been made one of the oases in which Ministers thought it sufficiently important to express their convictions formally. The rule is now laid down for the future that such advice is to be uniformly tendered; and if this rule is acted upon, there can never again come a case in which the Governor can say that he was substantially influenced by his Minister, and as to which tho Minister can at the same time say that he shook off all responsibility because he bad neither been asked for advice, nor had be tendered it.

The other point o£ importance with which the despatch deals is the exile of prisoners. On this, the Secretary of State is quite clear

that tjho Governor ought to allow no exile except on hia own responsibility, and in fact ought not to grant exile at all. The legality of the act lie admits, but the power he says has been sparingly used and ought to be practically obsolete. It is a practice calculated to give rise to reasonable complaints, nor could the recommendation of a colonial Ministry justify the Governor in adopting it. At the time of Gardiner’s exile the difficulty seems to have been far less felt by the Government than by the people. It had been the law for years, and it had been acted upon, and the Government felt no difficulty in continuing to act upon it; but the notoriety into which this transaction had brought the custom, made it obviously undesirable to continue it. The whole world was made aware of the fact that an Australasian colony which had taken the lead in protesting against transportationwasinthehabit of exiling its worst criminals. We have already had reclamations from California, and we are not unlikely to have them from other parts of the world. It was this difficulty which made the pardoning of Gardiner so undesirable in the estimation of many who petitioned against it. There were some who thought he might be safely let loose in the colony, but this was not the general opinion ; and if it was not safe to let him loose here, and if it was not proper to exile him elsewhere, what other alternative was there but to keep him in confinement ? This difficulty will continue in the future. If exile is to be practically prohibited under instructions from the mother country, we must find out how to deal with our criminals ourselves, and in that case we must adopt such precautions as will be suitable to the circumstances. We have, however, invited other countries long ago to solve the same social problem, and we can hardly complain when we are called upon to carry our own principles into effect,