9526.
PUBLIC RECORD OFFICE
C.O.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
legislation, we would point out to your Lordship by what modifications in the plan that necessity might be avoided.
In obedience to your Lordship's commands, we have the honour to
Report
That the proposed force would come under the provisions of the 41 Viet., cap. 10. An Ordinance of the Legislature of Cyprus could not, in our opinion, legally provide for the enlistment of men to serve anywhere but in Cyprus.
Any Turkish subject enlisting in the proposed corps would enlist "as a soldier in Her Majesty's service" within the meaning of section 2 of the 1 Vict. cap. 29., since the number of foreigners proposed to be enlisted would be in excess of the proportion allowed to serve in any regiment, battalion, or corps under 1 Vict. cap. 29.,
section 2.
The only modification, if it can be called a modification, is that the requisite number of men should be hired and employed as civilians in the making of roads and other labour necessary for the public service, such as preservation of peace and good order in Cyprus.
These men should not be dressed, armed, or officered as soldiers.
Our opinion, as your Lordship will gather from the above report, is against the proposed scheme, which we consider could not be carried out consistently with Constitutional law.
We have, &c., (Signed) JOHN HOLKER.
The Right Hon. the Marquis of Salisbury.
HARDINGE S. GIFFARD.
I agree with this report with the exception that I strongly doubt whether the force in question would come within the terms of section 4 of the Mutiny Act, or within the Mutiny Act at all.
(Signed) J. PARKER DEANE.
SIR,
No. 205.
(CANADA.)
LAW OFFICERS to COLONIAL OFFICE.
Lorne, 1 January
randa.
We were honoured with Mr. Herbert's letter of the 21st ultimo, stating that he
Temple, 13th June 1879. was directed by the Secretary of State for the Colonies to request that we would take into our consideration the papers transmitted therewith, as noted in the margin, from The Marquis of which we would learn that the House of Commons of Canada, having passed a reso- 1879 with Memo- lution censuring Mr. Letellier, the Lieutenant-Governor of Quebec, the Dominion The Marquis of Ministers advised the Governor-General to remove Mr. Letellier from office in exercise 19 of the powers vested in him by the 59th section of the British North America Act, . Mac- 1867; and that as there were no precedents bearing on the case, which involved important constitutional points, the Governor-General, with the concurrence of his Ministers, determined to submit the advice tendered to him, and the whole case, to British North Her Majesty's Government for their consideration and instructions.
2. That you did not at present desire our assistance in considering whether, under the circumstances stated, the Lieutenant-Governor should or should not be removed from office, because it appeared to you that if this was a matter in which the Governor- General should, under the constitution of the Dominion, be guided by the advice of his responsible Ministers, Her Majesty's Government could not properly or safely undertake to decide it.
3. That it was this preliminary question, therefore, as to which you would be obliged by our advice, and Mr. Herbert was to request that we would inform you whether in our opinion it would be a right and sufficient answer to the reference which had been made to Her Majesty's Government to instruct the Governor General that the matter so referred was one in respect of which it would be in accordance with the constitution of the Dominion of Canada that he should act upon the advice tendered to him by his responsible Ministers.
Lorne, 9 April Memorandum by
donald.
Mr. Letellier.
18 April 1879.
1879.
Joly, 6 May
America Act, 1867.
with papers uli
was founded.
4. That in regard to the construction of the language of the 59th section of the British North America Act, 1867, Mr. Herbert was to refer us to an opinion given by the Law Officers of the Crown (Sir R. Baggallay and Sir J. Holker) on the 1st November Copy enclosed. 1875, when they advised that the Governor-General should act under the advice of his which opinion Ministers in a matter which, in the particular section of the "British North Amerioa Act" relating to it, had been placed under the jurisdiction of We would, however, also observe that there was a distinct difference between the the Governor-General." language used in the 59th section of the Act and the provisions of the 58th section, under which appointments of Lieutenant-Governors were made.
We were also honoured with Mr. Bramston's letter of the 4th instant and Mr. Herbert's letter of the 10th instant.
In compliance with the request contained in Mr. Herbert's letter we have the honour to
Report
That so far as the question depends upon the mere wording of the statute, we think that a different construction ought to be put upon the two sections 58 and 59, upon which the question turns. It is obvious that the language is varied in the important particular of omitting the words "in Council." It is impossible to suppose that the Legislature had not a definite intention where the language is so carefully guarded.
But, independently of the mere difference of language, we think the nature of the subject-matter dealt with furnishes an argument why the Legislature should have reserved for the decision of Her Majesty's representatives, without reference to the political parties which might for the moment be in the ascendant, such a question as the dismissal of a Lieutenant-Governor. In no other way could the independence of the Provincial Assemblies be preserved.
In this particular case it is suggested that the Lieutenant-Governor had not obtained a majority in the Provincial Assembly; but it is obvious that if the construction
A 19916.-195. 25.-12/84.