A.—l

6

2. The jury in delivering the verdict accompanied it with a recommendation to mercy on account of his age (17 years), and his being of the Native race. 3. I went fully into the case, and my Executive Council advised me to commute the sentence to one of penal servitude for life, and I accordingly did so. 4. The minute in the book recording the proceedings of the Executive Council is as follows : " The Minister of Justice submits the case of Mahi Kai, an aboriginal native under sentence of death for murder at New Plymouth. Commuted to penal servitude for life." 5. From this your Lordship will observe that there is no record of the advice given by the Executive Council, nor does any such advice appear upon the papers in connection with the case. 6. A question has been raised as to the form in which this advice should be given in such cases—whether orally at the Council, or in writing on the papers at the tinie of their consideration by the Executive Council. I enclose a memorandum from the Premier, from which your Lordship will gather that my present Advisers entertain the opinion that all acts of administrative government within the colony should, without exception, be done on the advice of Ministers. They entertain the same opinion as to the advice which the Governor is directed to take from his Executive Council as did Lord Carnarvon in his despatch of the 4th of May, 1875, in which he says that "Whether also given " orally or not, it should be given in writing." 7. So long as Ministers held it to be a constitutional practice and a duty that they should retain office, even if the Governor should decline to accept their advice in the exercise of the prerogative, and so long as it was believed that collisions between the Governor and his Ministers could be avoided by mutual tact and forbearance, the system may have worked well; but as soon as Sir Thomas Mcllwraith resigned because the Governor of Queensland declined to accept his advice, on which occasion your Lordship did not uphold the action of Sir A. Musgrave, it became obvious that the retention of office under such circumstances ceased to be a constitutional practice with Australasian statesmen. 8. If Ministers see no reason for making a distinction between the ordinary business of government and the business in connection with the exercise of the Royal prerogative of mercy, the Governor may at any moment find himself as Sir A. Musgrave did —without Advisers, and unable to replace them with others having the confidence of Parliament. 9. I have found in practice that the wishes and opinions of the Governor are in other matters, as well as this, listened to with all respect, and that when consistent with their own opinions Ministers endeavour loyally to co-operate with the Governor, accepting full responsibility for their actions. But it may be that the Executive Councillors would hold very strong opinions antagonistic to those of the Governor; that the public, knowing that the Governor is instructed to call for the advice of his Executive Council, would bring very strong pressure on them to give certain advice, and to resign if it were not taken; for your Lordship is aware how strongly the public mind is sometimes agitated in cases of criminals sentenced to death. The present practice is attended with much that is undesirable for the representative of Her Majesty. He is liable to being accused of being actuated by religious or sectarian motives, or by class prejudice. Deputations of various kinds wait upon him. The counsel for the prisoner claims to be allowed to place before him facts alleged to have come to light since the trial, and thus endeavours to turn the Governor i«.to a Court of Appeal. 10. Parliament may, in its debates, endeavour to influence public opinion to put pressure on the Governor, for I have noticed a growing tendency under certain circumstances to bring under criticism of the popular branch of the Legislature administrative functions performed by the Governor even under the advice of Responsible Ministers. How much more, then, would such a tendency develope in cases which concern the internal administration of the colony, but where the Governor does not act with the advice of Ministers, and cannot maintain that he is acting with a desire to hold the balance between