cHAP. Iv] THE PREROGATIVE OF MERCY 1413 
difficulty was occasioned to the Ministry in dealing with an 
instance of the exercise of the prerogative in a capital case. 
The Government had had no experience in dealing with the 
matter since the issue of the new instructions. They, there- 
fore, while receiving a report from the judge, omitted to 
ask him to attend to discuss the matter in Cabinet or to 
make any recommendation. It is usual in the other states 
for the Government to ask the Chief Justice to attend 
and to question him on legal points, though Chief Justices, 
as a rule, do not make recommendations.2 The Executive 
Council decided to recommend that the law should take its 
sourse, but the counsel for the accused elicited the fact that 
the judge was in favour of the commutation of the sentence, 
and in consequence a popular agitation was started which 
resulted in the judge being asked to attend a further Cabinet 
meeting, and in the Cabinet deciding to commute the sentence 
in accordance with his advice. Nevertheless, they were 
faced by an attack in the House of Assembly, which, however, 
was withdrawn when it appeared that the Government had 
acted with no intention of disregarding their duty and their 
position The case was important because the Governor 
thought it well to address a minute to ministers explaining 
that under the new instructions no personal responsibility 
rested in such a case with the Governor, that the mode 
of procedure had been left by the new instructions for the 
discretion of each Colonial Government, and that in New 
Zealand the presence of a judge was not considered by 
Mr. Ballance in 1892 to be necessary in the discussion of 
sentences, as the Executive Government there carried out 
the law.4 
t See Hobart Mercury, October 20-2, 1908. 
* The practice, I believe, varies; the above statement represents the 
rule followed by the late Sir F. Darley, C.J. of New South Wales. 
* Dr. McCall appears to have raised the matter to make clear that a 
man’s fate must not be allowed to be decided without securing all available 
information. 
* In Canada in a capital case, since 1866 each judge is under a legal 
obligation to furnish a full report. For New Zealand see Parl, Pap., 1893, 
A. 1, p. 12; Constitution and Government of New Zealand, pp. 187, 210.