1404 THE JUDICIARY [PART VI 
will depend upon the unflinching application to every ques- 
tion of the constitutional principle, and that greater difficulties 
and troubles will arise from the avoidance than from the 
assumption of the full responsibility which the sub-committee 
suggest should, by the alteration of the existing instruction, 
be imposed on ministers even in capital cases. 
As a result there was adopted a new form of instruction 
similar to that of the Commonwealth, which will be cited 
below. Even so in cases of equal division in the Council the 
Governor must decide, and he did so in Shortis’s case, after 
consulting the Secretary of State, the Council being unable 
to advise, and in all cases he considers carefully the recom- 
mendations of the Minister of Justice.2 
§ 3. Tae Discussion AT THE CONFERENCE OF 1887 
The question of the exercise of the prerogative of pardon 
was considered at the Colonial Conference of 1887, when the 
delegates present were invited to express their opinion on 
a question raised by Sir F. Dillon Bell, on behalf of New 
Zealand, as to whether the time had not come when it was 
expedient to instruct the Colonial Governors that in matters 
relating to the prerogative of mercy they should be guided 
by the advice of their responsible ministers? Mr. Deakin 
stated that he was advised by the Government of Victoria 
to support this contention? He stated that some Governors 
had adopted the attitude that they were constitutionally 
bound to accept the advice of their ministers with reference 
to the reprieving or execution of a criminal, but other 
Governors had stood upon their rights under the instruc- 
tions, and had declined to take the advice of their ministers. 
The position was inconvenient and difficult for the Governor, 
for he had been subject to public pressure, and he was unable 
! Canada House of Commons Debates, 1896, Sess, 1, pp. 827-50, 7171-85; 
Sess. 2, p. 2279; 32 C. L. J. 237. ? Ibid., 1908, pp. 2915 seq. 
® See Parl. Pap., C. 5091, pp. 545 seq. 
¢ Cf. Higinbotham’s view, Victoria Debates, 1875, pp. 504 seq.; Morris, 
Memoir, p. 200. In the Wantabadgery case in New South Wales in 
September 1885, the Governor used his discretion against ministerial 
advice ; Debates, 1885-6, p. 311. But otherwise Lord Carrington in the 
Mount Rennie case, Parkes, ii. 177; cf. Debates, 1911, p. 12986.