CHAPTER IV 
THE PREROGATIVE OF MERCY 
§ 1. THE PREROGATIVE UP TO 1878 
THE prerogative of mercy is one of the most important 
prerogatives of the Crown, and is an essential part of the 
working of the executive government of a British Dominion. 
It is always delegated to the Governor by some instrument ; 
whether it would pass without delegation is a moot point, 
and has been noted above; it has been held by the Chief 
Justice of Canada ! that the delegation is essential if it is to 
pass, and at any rate it is always so delegated by Imperial 
instruments ; but on the other hand, it is so essential an 
element of government that it might be deemed to be included 
in the duties delegated to a Governor by the instruction to 
perform the duties of a Governor, which is the basis of all his 
sxecutive authority.? 
There is no possible doubt that the power is one which 
could be barred by express words in a statute; but it has 
never been sobarred, although it has often been supplemented 
by rules under Acts giving prisoners releases on condition of 
good conduct and so forth ; but these rules in no way abridge 
the prerogative. In some cases, as for example in the Vie- 
torian Act No. 2106 regarding indeterminate sentences, there 
is an express saving of the prerogative; in the Tasmanian Act 
7 Edw. VII. No. 17, there is no saving, and the Bill was re- 
served, but allowed as being clearly in no way a limitation 
of the prerogative ; moreover, the Tasmanian Act regarding 
prisons of 1906 is again significant, for it gives the power of 
remitting sentences thereunder to the Governor as distin- 
guished from the Governor in Council, thus preserving, even 
as regards the special authority of the Act, the discretion of 
+ Attorney-General for Canada v. Attorney-General of Ontario, 23 3. C. R. 
458, at p. 469. Cf. 20 0. R. 222; 190. A. R. 31; Wheeler, Confederation 
Law, pp. 327 seq. 
: Cf. 20 0. R. 222, at p. 255 per Boyd C.; 19 O. A. R. 31, at p. 39, per 
Burton J. A.