1400 THE JUDICIARY [PART VI 
regard to the interpretation of the Australian instructions 
was well known to the Canadian Government. Mr. Blake 
protested strongly against the adoption of this form of 
instructions, and explained the principle on which his 
objection rested in a long minute. The Secretary of State 
in the main adopted his suggestions, though some further 
correspondence passed with regard to the desire which was 
pressed strongly by Mr. Blake, that nothing should appear 
as to the right of pardons in the letters patent. 
The Secretary of State was prepared to concede this request, 
but he decided that there must be kept in the royal instruc- 
tions a clause dealing with the matter, and in that decision 
Mr. Blake and the Canadian Government finally acquiesced. 
The following extract shows the grounds of Mr. Blake's 
representation :— 
The main question is upon the instruction given to the 
Governor that he is in capital cases either to extend or to 
withhold a pardon or a reprieve according to his own deli- 
berate judgement whether the members of the Council concur 
therein or otherwise. Having regard to the form of the com- 
mission and of this instruction the proper inference is that 
in all cages not capital the action of the Governor by way of 
pardon or commutation is to be, as is his action in other 
matters, under advice, and that it is only in the capital cases 
which are specially dealt with by the instruction that he is 
to act upon his own judgement even against advice. The 
distinction thus created does not appear well founded. It pro- 
vides a different rule of action based simply on the gravity of 
the sentence, whereas the only tenable distinction that occurs 
to the sub-committee is between the cases (whether capital 
* It may be noted that originally the Imperial Government decided that 
the power of pardon must be vested for all purposes in the Governor-General, 
overruling the proposals in s. 44 of the Quebec Resolutions, and not in the 
Lieutenant-Governors, and the royal letters patent originally provided for 
this. But when it became clear that the Lieutenant-Governors could 
legally pardon for offences against provincial laws (see 23 S. C. R. 458) the 
wording needed change to exclude such cases from the prerogative, else the 
Governor-General could pardon under the prerogative in such cases. But 
the change was only made in 1905, following the Commonwealth model, 
which applied to very different circumstances, for the Commonwealth has 
no criminal law proper. Ct. Canada Sess. Pap., 1869, No. 16.’