A.—2b

38

each case in which he is called upon to exercise the prerogative of pardon. It is true that all the papers submitted to the Executive Council are sent to the Governor for his perusal before each meeting, but there is such a large mass of merely formal business passed through Council that if petitions were treated in the same manner each case would probably not be so carefully examined as if it were sent separately to the Governor with a minute upon it by the Minister of Justice.

No. 5. The Earl of Carnarvon to Sir H. Eobinson, K.C.M.G. Sir, — Downing Street, 7th October, 1874. I have to acknowledge the receipt of your despatch of the 29th of June,* in which you enclose a printed paper laid before the Parliament of New South Wales, at the bottom of page 7 of which paper is a minute, embodying the decision arrived at by the Executive Council on the subject of the prerogative of pardon. 2. The decision of the Executive Council as contained in this minute, being in accordance with what I believe to be the general practice in other colonies, and also with the views of Her Majesty's Government, as expressed in my predecessor's despatch of the 17th of February, 1873,t appears to require no comment from me, except that I understand the Minute of course not to contemplate any departure from the rules laid down in section 14 of the Eoyal Instructions as to capital cases; and a great part of your Minute immediately preceding it also expresses correctly the principles established for dealing with those other cases in which it is proposed that the prerogative of pardon should be exercised. But I doubt whether you correctly apprehend the meaning of my predecessor's despatch when you speak of his suggesting an " informal consultation " between the Governor and the proper Minister. Lord Kimberley, as it seems to me, suggested that, except in capital cases, such consultation need not be in the Executive Council; but I entertain no doubt that he considered, as I do, that it must be of an essentially formal character, and it is very proper that the Minister's advice should be given in writing. As Mr. Parkes correct!} 7 observes, the Minister in a colony cannot be looked upon as occupying the same position in regard of the Queen's prerogative of pardon as the Home Secretary in this country. The Governor, like the Home Secretary, is personally selected by the Sovereign as the depositary of this prerogative, which is not alienated from the Crown by any general delegation, but only confided as a matter of high trust to those individuals whom the Crown commissions for the purpose. Actually, therefore, as well as formally, the Governor will continue to be, as he has hitherto been in New South Wales and in other colonies, the person ultimately responsible for the exercise of the prerogative. But this is quite consistent with the further duty, expressly imposed upon him, of consulting his Ministers, or Minister, before he acts. 3. While, therefore, the rule of procedure now 7 adopted is correct, it seems necessary to point out that in the last three paragraphs of your minute you go somewhat too far in laying down that the exercise of the prerogative of pardon, even in minor cases, is a " branch of local "administration," in regard of which the responsibility formally attached to the Governor can practically be transferred to his Advisers. 4. Not only is it necessary, as has already been observed, that the power given specially by the Sovereign should be exercised only by the person to whom it is given, but the duty of a Governor to the Imperial Government renders it necessary that he should himself decide whether, in any case brought before him, the exercise of the prerogative involves questions affecting the interests of persons or places beyond the colony, or in any other respect not purely colonial. 5. In the case of Gardiner, from which, although it is not directly referred to in your despatch now under notice, the present question has of course arisen, a point came up for consideration which was obviously in no sense one for the final decision of the Ministers of New South Wales, or of any one colony, however large and important. It was proposed and decided to pardon the criminal on condition of his leaving the colony, and remaining absent from it, under the Act 11 Vict., c 34,J the provisions of which, in respect of the power of exiling criminals, have been sparingly used, and, as I have elsewhere stated, ought to be practically obsolete. The effect upon neighbouring colonies, the Empire generally, or foreign countries, of letting loose a highly criminal or dangerous felon to reside in any part of the world except only that principally concerned to take charge of him, was a step which might clearly and not unreasonably give rise to complaints from without the colony; nor could the recommendation of a Colonial Ministry in favour of such a course be of itself a sufficient justification of it. 6. I am glad to understand that the New South Wales Government is willing to take steps for repealing the 4th section of 11 Vict., c 34. 7. I trust that it is almost unnecessary for me to add, in conclusion, that while I have thought it not only necessary in the interests of the public service, but just to yourself and to those who may succeed you, to set forth clearly and without reservation the opinion which I entertain on the subjects referred to in this despatch, I should be altogether misunderstood if it were supposed that it is my object to imply any censure in regard to this transaction. On the contrary, I have the fullest confidence in the desire, both of yourself and your Government, to deal in a wise and prudent spirit, and on the soundest principles, with a class of cases which often involve questions of great difficulty. I have, Ac, Carnarvon. * No. 1. t (No. 6) in No. 1. J Printed at page 2.