1396 THE JUDICIARY [PART VI
Bowen on the subject, but I have been given to understand
that the practice there is somewhat similar?
The reply of the Secretary of State of October 7, 1874.2
was in part an approval of the proposal, but it still main-
tained the personal position of the Governor in criminal cases,
and even in minor cases, though not quite so strongly in them.
There was evidently some serious discrepancy in the views
of the Governor and the Secretary of State, though the
latter minimizes the discrepancy in his dispatch :
I have to acknowledge the receipt of your dispatch of
June 29, in which you enclose a printed paper laid before
the Parliament of New South Wales, at the bottom of p. 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 dispatch of February 17, 1873, 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 s. 14 of the royal instructions as to capital
cases; and a great part of your minute immediately pre-
ceding 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 dispatch when you speak of his suggest-
ing 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 correctly
! In a later dispatch of July 3, 1874, the Governor explained that the
practice in Victoria was the same ag in New Zealand.
2 Tbid., p. 47. A further dispatch on p. 48 merely repeats the fact, and it
is emphasized in a dispatch of May 4, 1875; C. 1248, pp. 6,7. Consulta-
tion was in all cases essential, and the decision lay with the Governor,
who was bound to consider Imperial interests as well as ministerial advice,
but in all cases must decide as he thought right.
