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2
W OFFICERS to COLONIAL OFFICE.
Law Officers' Department,
Royal Courts of Justice,
30th March, 1917.
red with your commands signified in Mr. Henry Lambert's bruary last transmitting to us certain papers with reference which had been made to you by the New Zealand Government cer administering the Government of New Zealand should be to Governor-General and requesting us to advise whether in re suggested in Mr. Lambert's letter met the requirements of what procedure additional to or in substitution for that pted.
matter into our consideration, and, in obedience to your our to submit the following:-
Report.
22
proposed alteration in title may properly be made by Letters gislation is not necessary. Section 80 of the New Zealand d 16 Vict. C. 72) provides that the term " Governor shall time being lawfully administering the Government of New rovisions are contained in amending Acts-e.g., 20 and 21 and 26 Vict. C. 48, S. 9. Under the Letters Patent of the he title is "Governor and Commander in Chief," and it ? various Statutes the term Governor " is used not so much
e title of the office as by way of describing the person who le he may be designated.
gislation is necessary is a question which depends upon the lonial Statutes. Probably there is no such necessity. But è a matter for the legal advisers of the Government of New nk it expedient to amend the New Zealand Interpretation
We have the honour to be, Sir,
Your most obedient, humble servants,
H. Long, M.P., &c.,
FREDERICK SMITH. GORDON HEWART.
No. 202.
(JAMAICA...)”
COLONIAL OFFICE to LAW OFFICERS.
[Whether the Jamaica Military Service Law, 1917, is intra vires of the Legislature of Jamaica.]
GENTLEMEN,
Downing Street, 9th July, 1917.
I am directed by Mr. Secretary Long to transmit to you a copy of a despatch from the Governor of Jamaica together
No. 218, 7th June, 1917. with copies of the Jamaica Military Service Law, 1917, and of the report of the Attorney-General of Jamaica 'upon that Law.
2. In the twelfth paragraph of his report the Attorney-General points out that under this Law men are called up for compulsory military service in Jamaica, or beyond the limits of Jamaica (S. 3), and become subject to the Imperial Army Act while serving abroad (S. 21 (2)); and he raises the question whether, having regard to the terms of S. 177 of the Army Act, the enactment of such provisions is within the competence of the Colonial Legislature.
3. Mr. Branch takes the view that the words" force of volunteers or of militia or any other force" do not include a force for active service abroad raised by means of a compulsory service law such as that under report; and he bases that view on the argument that the words "any other force" ought to receive an ejusdem generis construction.
4. Mr. Branch also suggests that there is a distinction between the powers of the Legislature of Jamaica and those of the Legislature of Australia, which has been expressly empowered by the Commonwealth Constitution Act to make laws for peace, order, and good government with respect to naval and military defence. 5. In the case of the New Zealand Military Service Act, 1916, the Attorney- General of New Zealand was of opinion that this Act (which similarly provides for compulsory service outside New Zealand) was not ultra vires, and Mr. Long's pre- decessor was advised in a sense opposite to the view taken by Mr. Branch in regard to the construction of S. 177 of the Army Act. It is submitted that if the words or any other force are construed ejusdem generis with " any force of volunteers
"
or of militia" they have no meaning, since any force raised by voluntary enlistment
is covered by "volunteers" or "militia," and therefore in order to find a meaning
for the words in question they must be construed as applying to any other force not so covered, e.g., one raised under a system of compulsory service.
6. Mr. Long is also advised that there is no such distinction as Mr. Branch seeks to draw between the powers with regard to "military defence" of the Legisla- ture of Australia and that of Jamaica; that Section 177 of the Army Act applies to all the Dominions and Colonies, which all enjoy the same powers thereunder; and that, apart from the Army Act, powers conferred on a Dominion by its constitution to legislate as to military defence" confer on it no greater powers than are possessed either by a Dominion whose constitution contains no express provision with regard to legislation on the subject of military defence or by ordinary Colonies, all of which are empowered to legislate for peace, order, and good government.
7. In these circumstances I am to request that you will be good enough to furnish Mr. Long with your advice upon the following points :-
(1) Whether the Jamaica Military Service Law, 1917, is intra vires of the
Legislature of Jamaica;
(2) if not, in what respects is it ultra vires, and what provisions would be
necessary in an Imperial Act to cure the defect; and
(3) generally.
8. As the points now raised are material to similar legislation now pending in other Colonies, Mr. Long would be greatly obliged by an early reply.
(17026-2) WL. 15–15. 25. 4,12. D & 8. G. 1.
. I am, &e.
G. GRINDLE.
PUBLIC RECORD
OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE
BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
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35875
REPORT.
We are of opinion that the first question submitted to us must be answered in the affirmative. The second, therefore, does not arise.
Law Officers' Department.
Royal Courts of Justice.
17th July, 1917.
We have, &c.
FREDERICK SMITH. GORDON HEWART.
L