11

A.—2b

prerogative of pardon in other than capital cases, whilst it was clear that Lord Kimberley considered the responsibility for decisions, which were so intimately connected with the proper administration of justice and the prevention of crime, should rest with Ministers, and not solely with the Governor, as heretofore. It seemed to me from the correspondence that the one thing which Lord Kimberley held to be indispensable was Ministerial responsibility; so long as this obligation was clear and acknowledged it was a matter of little consequence by what form of consultation it was arrived at. I took the earliest opportunity, after the receipt of Lord Kimberley's despatch, of speaking to Mr. Parkes on the subject. J pointed out that the question so long under reference at Home had, at length, I thought been conclusively disposed of, and I expressed my readiness to initiate a system more in accordance with Home views and constitutional principles whenever he was prepared to take up the question. So the matter rested until ahout a month ago, when the attention of Parliament was attracted to the proposed release of the bush-ranging [prisoners. The despatches as regards the exercise of the prerogative of pardon were then called for, and Mr Parkes wrote his minute of the 30th ultimo, which will be found amongst the published papers.* Mr. Parkes' view as embodied in this paper was simply this : he preferred that the responsibility of deciding upon applications for mitigation of sentences should remain, as heretofore, solely with the Governor; but if a change were insisted on, and the cases of prisoners were to be decided on the advice of Ministers, as required by the Secretary of State, he could see no sufficient reason for making a distinction between this class of business and the ordinary business of Government. In effect, he declined to accept any responsibility for Ministers unless they had, not only in form but in substance, a voice in such decisions. I at once felt that it was impossible for me to accept Mr. Parkes' alternative of allowing matters to remain as they were. Such a settlement would have been opposed to the views of the Secretary of State, and it would have been instantly protested against by Parliament, as inconsistent with the principles of responsible government. The discussions which had already taken place in Parliament had shown beyond all question the necessity for some Minister being responsible for the pardons granted, as well as for those which might be refused. As instancing the necessity for Ministerial responsibility, in even the latter class of cases, I enclose a Parliamentary paperf which shows how charges of sectarian partiality and official corruption can be based on a refusal to entertain an application for mitigation. It will be obvious from a perusal of this paper how necessary it is that Her Majesty's representative should be relieved from a position which exposes him to such imputations. I accordingly felt no hesitation in closing with Mr. Parkes' other alternative, and deciding that for the future all applications for mitigation of sentences should be submitted to me through the intervention of a responsible Minister, whose opinion and advice, as regards each case, should be specified in writing on the papers. This is simply the mode in which all the ordinary business of Government is conducted, and I could see no sufficient reason for making any distinction in these cases. If the appointment of Judges and other prerogatives of like kind had been left to the Eepresentative of the Crown, there might have been some grounds for retaining also in the same hands the exclusive exercise of the prerogative of pardon. But when everything else has been conceded to the Eesponsible Advisers, it seems too absurd to suppose that the question of letting out this or that criminal should be the one thing not intrusted to them. In the present Constitutional stage it is obvious that, as regards all purely local matters, Ministers must be trusted " not at all, or all in all." It appears to me, too, that the plan determined on meets all the requirements specified in Lord Granville's and Lord Kimberley's despatches on this subject. J The papers in every case will be laid before the Governor for his decision. He will thus have an opportunity of considering whether any Imperial interest or policy is involved, or whether his personal intervention is called for on any other grounds. If there should be no such necessity he would, of course, as desired by Lord Kimberley, " pay due regard to the advice of his Ministers who are responsible to the colony for the proper administration of justice and the prevention of crime." Mr. Parkes, I think, pushes his argument against the change too far, when he implies that the refusal of the Governor to accept the advice of the Minister in any case of pardon would necessarily involve his resignation. Of course, theoretically, such a view is correct, but I need scarcely point out that in the practical transaction of business Ministers do not tender their resignations upon every trivial difference of opinion between themselves and the Governor. I trust that your Lordship will approve of the plan which I have adopted, with the consent of the Government, and the entire concurrence of Parliament, for dealing with applications for the mitigation of sentences in cases which are not provided for by the Eoyal Instructions. I may add that I have learned, since the matter was disposed of here, that the new system is, in effect, similar to the practice in force in the neighbouring colonies. In New Zealand, tho practice, lam informed, is precisely similar to that now established in New South Wales; whilst in Queensland, South Australia, and Tasmania, recommendations for mitigations of sentences are brought before the Executive Council by a Minister, which, of course, places the responsibility for the decision arrived at directly upon the Government. As regards Victoria, I have not as yet received a reply to an inquiry which I have addressed to Sir George Bowen on the subject, but I have been given to understand that the practice there is somewhat similar. * Enclosure 7 in No. 1. t Not printed. J Enclosures 3 and 4 in No. 1.