HL Deb 16 April 1875 vol 223 cc1065-77

rose, according to Notice, to put a Question to the Secretary of State for the Colonies as to the conditions under which the power of granting pardons is in future to be exercised by the Governors of those Colonies which have responsible government, and to move an Address. The noble Earl said, that the subject to which he was about to refer was one of, perhaps, not very great interest for their Lordships' House, but it was one, not only of interest, but of very great importance to the Colonies. He would have to refer to both Canada and New South Wales, but he did not mean to express any opinion on the merits of the case of Lepine, and still less was it his intention to criticize the conduct of the Governor General of Canada. He was merely going to show what had been done by that noble Earl, and what had been done by the Governor of New South Wales in respect of the remission of sentences, and he proposed to do this because he thought there was a Constitutional question of considerable importance involved in the contrast between the mode of procedure in the two cases. The Canadian case was shortly this—Mr. Lepine was convicted about November last of having been accessory to the murder of Thomas Scott during the insurrection at Fort Garry some time before, and was sentenced to be hanged. Circumstances caused a good deal of excitement of a party nature, and there was great difference of opinion as to whether that sentence should be carried out. Finally, his noble Friend Lord Dufferin solved the difficulty by commuting the sentence to two years' imprisonment. It appeared that the noble Lord had taken that course on his own responsibility. Now, if Lord Dufferin had remitted the sentence after consulting his Council, he was no doubt doing what every Governor had a right to do in capital cases, even where responsible government existed: but if, as implied by The Times' correspondent, in a letter published on the 5th of November, he had acted as he had done in order to relieve his Ministry of the responsibility of offering advice, either the noble Earl's commission must give him greater powers than his (the Earl of Belmore's) had given him as Governor of New South Wales, or else he (Lord Dufferin) must take a much more extended view of his powers than he (the Earl of Belmore) had done. Their Lordships would observe that there was a marked distinction between a Governor acting without the advice of his Council, and a Governor, after having received such advice, exercising his own judgment upon it, though that judgment might be contrary to it. The latter was all that, when Governor of New South Wales, he supposed it to be in his power, or that of any other Governor in similar circumstances, to do. But it would appear that Lord Dufferin claimed the power of acting on his own judgment in cases of supreme importance. He (the Earl of Belmore) was not aware whether that power was disputed, and he thought it was much better that the Prerogative should be exercised in that way than that the contrary practice should prevail of the Governor deferring in all cases to the judgment of the Colonial Ministry—which, he understood, it was proposed should be the rule in future in New South Wales. The Australian case arose in this way. There was a notorious bushranger named Gardiner there, who, a good many years ago, was tried and sentenced, he believed, to a term of 32 years' imprisonment. Soon after Sir Hercules Robinson arrived in the colony he received a memorial for a mitigation of that man's sentence; and having considered the matter, he directed that after a limited period Gardiner should be released on condition of exiling himself from the Australian Colonies during the remainder of his term. That was a very common form of commutation, and one which in New South Wales was regarded as perfectly legal. He deprecated the idea of making any attack on Sir Hercules Robinson, though he could not agree in the decision that Governor had arrived at. When the time approached there was an intense feeling in the Colony against Gardiner's release: the matter of the remission was discussed in the Colonial Parliament, and the Prime Minister explained that the Governor having already some time before promised the man's release, could not then retract his promise. That was quite right. The Prime Minister further explained that Sir Hercules Robinson had acted on his own responsibility after consultation with him, but that he had neither offered nor been asked for any advice on the subject. He would not detain their Lordships by following the matter up step by step. It would suffice to say that in the result Gardiner was released on the condition which he had already stated. In consequence of what had passed in the Colonial Parliament, on the occasion to which he had just referred, and of some Correspondence with the Colonial Office which begun during his own administration in New South Wales, it was decided by the Governor and his Council that a change should be made in the mode of dealing with the exercise of the Prerogative of mercy by the Governor. In his (the Earl of Belmore's) time the mode was this—capital cases were always dealt with by the Governor in Council, in accordance with fixed Instructions; the presiding Judge reported to the Governor and was summoned to attend the Council; the Judge did so, and his report having been read, he retired after making any necessary explanations; the Governor then ascertained the views of the Members of the Council and then announced his own decision. Similar Instructions, he believed, applied to all Colonies. No alteration was proposed by Sir Hercules Robinson as regarded that class of cases. But in other cases, a memorial for remission would be sent to the Governor or to the Colonial Secretary; it would be referred for report to the Judge or magistrate who had dealt with the case, and the Colonial Secretary would then send it to the Governor with his initials—generally, without remark, but sometimes with a recommendation. Such was the practice in his time: and on the receipt of the report from the Colonial Secretary, he would have dealt with it on his own judgment—of course, carefully considering any advice offered by the Ministry, but still acting on his own responsibility, and not merely, as in nearly all civil business—in all except where a special duty was imposed by law—ministerially. Now, as he understood the proposed change, it was intended that in future the Governor of New South Wales was in such cases to act merely ministerially. Why was this? The practice which he had explained to their Lordships as having prevailed in his time had worked exceedingly well. In a community among whom political changes were frequent, it ensured that an experienced person should deal finally with that class of business for a lengthened period, and it relieved the Minister from a great deal of outside pressure. Something had been made of an expression in a despatch written by his noble Friend opposite (the Earl of Kimberley) to him, in which the noble Earl said he recognized the right of the Minister to give "effective advice." No doubt he did, and very properly; but his noble Friend did not mean, as he understood him, that the advice so given was to override the deliberate judgment of the Governor, or that the latter was not to exercise his own judgment. It might be that in other Colonies all the criminal business was dealt with in Council; but, even if so, he did not think that the Governor was really relieved from a personal responsibility in each case; and he expected to hear from his noble Friend (the Earl of Carnarvon) that he had not sanctioned any such doctrine. The Governor had hitherto stood in the position of the Home Secretary, and the effect of the change proposed would be to transfer the Home Secretary's position to a Colonial Minister. It was to be observed that such an exercise of a personal responsibility by the Government as that which he had explained to their Lordships was quite consistent with a rule that he should never pardon without first having received the advice of his Ministers; but it certainly was opposed to the practice which he had to-day learnt prevailed in South Australia—namely, that no remission should be given to a prisoner without the assent of the Minister, who accepted the responsibility in the local Parliament. He might mention that having had the opportunity of knowing how the business of the Home Office was conducted, he used to consider that the system at that office leant less to leniency than that which was practised in New South Wales. He would now put the Question of his noble Friend, and move the Address to Her Majesty of which he had given Notice. Moved that an humble Address be presented to Her Majesty for, Copies or extracts of so much of the commissions and instructions to the Governor-General of Canada and the Governor of New South Wales respectively, as relate to the exercise of the Royal Prerogative of Mercy; and also, Copies or extracts of the correspondence (if any) with the Secretary of State bearing upon this subject in connexion with the commutation of the respective sentences upon Lepine in Canada and Gardiner in New South Wales.—(The Earl of Belmore.)


trusted that their Lordships would favour him with their indulgence for a few remarks, inasmuch as in the Correspondence which had been laid on the Table, in connection with "The Exercise of the Prerogative of Pardon in New South Wales," his own name as a former Governor of that Colony was mentioned more than once, and it so happened that he was engaged in the administration of affairs when Gardiner, one of the convicts mentioned in the noble Earl's Notice, was brought to trial; and in Canada when the unfortunate man Scott was put to death, for which atrocious cruelty Lepine, the other convict named in the Notice, was afterwards made amenable and convicted of murder. He was very glad to gather from that Correspondence that the great concurrence of opinion, the vast weight of authority—namely, that of the two noble Earls (Earls Granville and Kimberley) who had held the Seals of the Colonial Office, as that of the noble Earl opposite (the Earl of Carnarvon) who succeeded them and was now in power, was in favour of maintaining the responsibility of the Governor with respect to the Prerogative of mercy. In the Papers on their Lordships' Table the noble Earl the present Secretary of State for the Colonies laid down the doctrine by stating that— The Governor, like the Home Secretary, is personally selected by the Sovereign as the depository of this Prerogative, which was 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 that purpose. The noble Earl, therefore, held that while the Ministers were responsible for advising the Governor, the latter could not divest himself of the personal responsibility which was specially entrusted to him. He concurred in that view; and certainly in reference to New South Wales, he quite agreed with Mr. Parkes, the Colonial Secretary, when he stated, towards the close of his Minute, grounds in opposition to Mr. Robertson's view, and to that which he himself seemed to have put forward partially at least. Mr. Parkes remarked— That he entertained grave doubts whether any change at present from the system which had hitherto prevailed would be beneficial to the colony. In a community so small as theirs the distinctions between classes were very slight; the persons entrusted with authority and the relatives and friends of prisoners move closely together; the means of political pressure were easily accessible, and, therefore, a larger share by the Minister in the exercise of the prerogative of pardon would not, in his judgment, be more satisfactory to the public. He could not indeed say that society as it presented itself to him in Sydney bore out in his opinion the description given by Mr. Parkes, or that he could recognize in the wealthy, educated, and fashionably attired companies with which he had mixed, the friends of convicts. Still he knew that "the means of political pressure were easily accessible" and only too frequently resorted to. When he took up the Government of New South Wales he learnt that under the Governorship of Sir William Denison during the previous four years, at the commencement of which the free Constitution came into play, and during which free representative institutions were in their infancy the pressure for the remission of sentences brought to bear on the new Members of Parliament was well nigh intolerable; during the seven years that he himself was Governor of New South Wales he had not, in any one ease, as far as he could now recollect, omitted to avail himself of the advice of the Colonial Secretary or the Attorney General, and he did not find any difficulty to arise from that practice; but he was not prepared to take the view of Sir Hercules Robinson that the responsibility might be left to devolve upon the Colonial Secretary. Sir Hercules Robinson thought that abuses would speedily pass away after the Colonial Secretary had been invested with that responsibility. He could not concur in that opinion. Undoubtedly, with the formation of a sound public opinion abuses would rapidly cease, but he doubted much whether, if the proposed system were adopted in New South Wales, that colony would not have to pass through the ordeal which the United States had been experiencing for 70 years past, and from which it had not yet emerged. In the United States scarcely one-third of the sentences pronounced were carried out by the authorities, and he ventured to say that the most thinking people in that country would prefer to have the prerogative of mercy exercised as it was in the British Colonies, if only they could have it so by some independent impartial authority like a British Colonial Governor, who would prefer the interests of justice and the security of property to the fancied advancement of party or political influences. As to the case of Lepine he differed from the noble Earl opposite, and thought that Lord Dufferin was deserving of high praise. He had come forward at the right time and in the right spirit, and by his mode of action put an end to what had threatened at one time to be an acrimonious and interminable quarrel between the French-speaking and the English-speaking population of the Dominion.


My Lords, I am glad the noble Lord opposite (Lord Lisgar) interposed his observations between the speech of my noble Friend and the reply I have to make to the inquiries which he made of Her Majesty's Government, because his doing so enabled him to express that well-deserved praise which he bestowed on my noble Friend the Governor of Canada. I shall say as little as possible on the question of Lepine, because I agree with those who think that it touches on most delicate ground, and that any imprudence with respect to it here might conjure up a good deal of the bad feeling which existed in Canada, and which the discretion and prudence and wisdom of my noble Friend Lord Dufferin had succeeded in allaying. My noble Friend found himself in a most difficult position, and he has conducted himself with a tact, ability, and judgment which en-title him to, and have procured for him, general approval. As to the question raised by my noble Friend (the Earl of Belmore), I will refrain from entering upon local matters and local complaints—the matter excited great attention, led to passionate debates, and terminated in the fall of a strong Ministry; but, divested of local details, it is one of considerable importance, if—as I understand it—that question is how the Prerogative of mercy is to be exercised in the larger Colonies. The question may be thus presented—first, whether the Prerogative is to be exercised by the Governor himself; or, next, whether it is to be exercised by the Colonial Minister; or, lastly, whether it is to be exercised by the Governor with the concurrence of the Minister. There is at the present some little difference on the practice as between the Australian Colonies. It is not apparently very great, but it is of more importance than appears on the face of it. In three of them—Queensland, South Australia, and Tasmania—the Governor decides in Executive Council—that is, the decision is called the decision of the Colonial Government. In three others—New South Wales, Victoria, and New Zealand—the Governor decides out of Council, but decides after having heard the opinion of the Ministers. The first of those practices makes the decision much more that of the Colonial Government than of the Governor; the second makes it that of the Governor. As to New South Wales, it appears that when Sir Hercules Robinson assumed the office of Governor he found some difference of opinion to exist as to the practice there. There had been considerable Correspondence between his Predecessor and my noble Friend; but Sir Hercules Robinson adopted the practice—as he states in these Papers—of consulting his Ministers, and he states that he did so on a Circular written by my noble Friend opposite (Earl Granville). My Lords, I think if you study those Papers carefully you will find that in reality there is very little difference among those who have held the Seals of the Colonial Office with respect to the responsibility in the exercise of the Prerogative of mercy. In a despatch written by my noble Friend opposite (Earl Granville) on the 4th October, 1869, when he filled the office of Colonial Secretary, writing to the Governor of New South Wales, he says— The responsibility of deciding upon such applications rests with the Governor, and he has undoubtedly a right to act upon his own independent judgment. But unless any Imperial interest or policy is involved, as might he the case in a matter of treason or slave-trading, or in matters in which foreigners might be concerned, the Governor would he bound to allow great weight to the recommendation of his Ministry. On the 1st November, 1871, my noble Friend (the Earl of Kimberley) who succeeded my noble Friend (Earl Granville) wrote thus— The Governor, as invested with a portion of the Queen's Prerogative, is bound to examine personally each case in which he is called upon to exercise the power entrusted to him, although, in a Colony under responsible Government, he will of course 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, and will not grant any pardon without receiving their advice thereupon. In the Instructions relating to this matter, which I think have undergone no change during a great many years, three things are required—first, that the report of the Judge be taken into consideration; next, that the Executive Council should give advice; and next, that the decision will be regarded as that of the Governor. The noble Lord (Lord Lisgar) has quoted a passage from my despatch of the 7th of October, 1874, which is quite in accordance with what is laid down by my two noble Friends in the extracts I have just quoted; and as a further proof of the concurrence on the part of myself and my noble Friends, perhaps I may be allowed to read a passage in another despatch of mine to Sir Hercules Robinson written on the same day— You will, I apprehend, have no difficulty in conforming to the clear rule laid down in your instructions, which is based on this principle—namely, that on the one hand, the Governor to whom personally the Queen delegates a very high Prerogative, cannot in any way be relieved from the duty of judging for himself in every case in which that Prerogative is proposed to be exercised; while, on the other hand, he is bound, before deciding, to pay the most careful attention to the advice of his Ministers, or that one of them who, in the matter under consideration, may be selected to represent his colleagues. My Lords, I quite admit that at times the exercise of the Prerogative of mercy may be one of great difficulty. Difficulties will arise in its exercise on the responsibility of the Governor; but, on the other hand, one very great advantage of making him the depository of the Crown in this respect is that he stands apart and is not subject to those influences which have been referred to by my noble Friend who last addressed your Lordships. In the larger Colonies where there is the fullest freedom of political government, nice distinctions will have to be drawn; but I believe that the men who are appointed Governors of those Colonies will be competent to draw those distinctions. No doubt, it may be objected to the system of the Governor consulting the Minister, and still acting on his own judgment, that it sets up a double responsibility. In reply, I submit that in this case a concurrent responsibility is better. On the one hand, the Governor will not be relieved of his responsibility to the Crown, and on the other hand the local Government will not be relieved of its responsibility to its own Parliament; so that while the Colonial Parliament may punish the Minister for improper advice, the Crown may punish the Governor for an improper decision. The fact is that, in these matters, we cannot be too logical. In the way I have just indicated, you may reconcile differences and overcome difficulties which cannot be counteracted by logical means. As to the banishment to which the sentence in New South Wales was remitted, I cannot concur with my noble Friend (the Earl of Belmore) in what he said as to that. The Colony, as a part of the British Empire, had no right to transport a criminal to another part of the Empire. The fact, however, is, that, in this instance, action was taken under an existing law which had been sanctioned many years ago; but, at that time, the circumstances were very different. That might have done very well when criminals sent out of a colony were turned like a scape-goat into the wilderness, and nobody was much the worse; but now things are different; flourishing communities have sprung up all around, and the Australian Colonies must find means of detaining their own criminals. I am able to say that the Colonies of New South Wales and Australia have expressed their willingness to repeal this law. As to the Australian case, I shall have no difficulty in producing the Papers asked for by my noble Friend—in fact, I believe those Papers are already before your Lordships. I am not aware of anything that can add to the information already before the House with respect to the case of Gardiner. As to the Canadian case, I am not at present prepared to lay the Papers referring to it on the Table of your Lordships' House. I may remind your Lordships that Lepine was concerned as principal in the murder of a man named Scott, was brought to trial, convicted, and had sentence of death passed upon him. It was a political murder, and Lord Dufferin very wisely commuted the sentence into 10 years imprisonment. My noble Friend (the Earl of Belmore) had observed that Lord Dufferin, in this ease, acted without the advice of his Ministers. But, having to deal with that sentence, Lord Dufferin found himself on an entirely different footing from that occupied by Sir Hercules Robinson in the case of Gardiner. The case of Lepine rested on wholly exceptional grounds. Those of your Lordships who are acquainted with the facts will remember that the circumstances arose in a particular part of the North-west, which is not a portion of the Canadian Territory. That of itself would have been a distinction. But there was more than that. Everyone is aware of the passionate feelings which the case excited. The case of Gardiner is one which has happened over and over again, and which, in all probability, will happen over and over again; but the case of Lepine is one which has not happened before, and is not likely to happen again in the lifetime of any one of us. But I may go one step further, and say that though, on the other hand, there may not be any formal record in the shape of a Minute of the Colonial Government of any communications between Lord Dufferin and the Colonial Government in reference to the remission of the sentence; on the other hand, full and ample communication did pass between them on the subject. He was perfectly aware of all the information the Colonial Government could give him, and of the opinion which they entertained, just as much as if all this had been embodied in a formal shape. In conclusion, I have only to say that I think my noble Friend Lord Dufferin was fully justified in the course he took, and that I am fully prepared to give him all the support in my power.


My Lords, I concur with what my noble Friend the Secretary for the Colonies has said as to the inexpediency of producing the Papers on the Lepine case, and I am glad that my noble Friend (the Earl of Belmore) does not intend to press for those documents. I have heard with pleasure the testimony of my noble Friend opposite (the Earl of Carnarvon) as to the way in which my noble Friend Lord Dufferin dealt with this extremely difficult matter. I think that no more difficult question has ever arisen in Canada, or none more trying to the firmness, patience, and discretion of the Governor General. It is gratifying to find that, so far as we can learn from the public sources of information, his action appears to have given satisfaction in Canada; and if that be so, he deserves the credit of having relieved Canada from a serious difficulty. I concur with everything said by my noble Friend as to the exceptional nature of this Lepine case. It is so exceptional in its character that no can suppose any general principle will be affected by the action of the Governor General. As regards the general question of the exercise of the Prerogative of mercy by Colonial Governors, that certainly does involve the exercise of one of the most delicate functions of the machinery of Colonial Government, and the noble Earl opposite was quite right in saying that, in matters of this kind, we ought not to be too logical. Constitutional Government in this country has not grown up by means of a rigorous application of the principles of logic, but rather by a happy application of good sense on the part of men who proved themselves equal to deal with emergencies. I think my noble Friend the Secretary for the Colonies has laid down the rule quite correctly in his final despatch. I am glad that he does not differ in any way from my noble Friend (Earl Granville) and myself, and I am happy to express my opinion that the noble Earl (the Earl of Carnarvon) has dealt with it in the right spirit.


, in reply, said, his noble Friend opposite (Lord Lisgar) was mistaken in supposing that he differed from Lord Dufferin in respect to the Lepine case. From his limited knowledge of the case, he was led to believe that Lord Dufferin had acted quite rightly, and had only done what the noble Lord (Lord Lisgar) would have done had he still been Governor-General, and what he himself might probably have done had it been his lot to fill that position. As to what his noble Friend the Secretary of State had said about his (the Earl of Belmore's) misunderstanding his decision as to the course to be pursued in future, that was not so. The fact was, that he did not understand, before his noble Friend's speech, that the Papers had already been presented. He (the Earl of Carnarvon) had been kind enough to send him a copy of them privately, but he did not, when he was speaking, know that he was at liberty to refer to them. As to Gardiner's punishment, there was a difference between exile and transportation. Nobody in New South Wales ever supposed that a Governor could transport, but he could pardon on condition of a prisoner's exiling himself for remainder of the term of his sentence. He did not wish to persevere with his Motion, as he understood from his noble Friend that the Papers which were already on the Table would give him all the information that was material.

Motion (by leave of the House), withdrawn.

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