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an end and the King's commission in either force should run in the other-the reason for this decision is that it is considered desirable on both sides to lay stress on the connection between the British and Canadian Forces regarded as component parts of the whole military force of the Empire. The War Department too has been for some time desirous of getting rid of the Canadian provisions under which British officers have been required practically to surrender (for the time being) their King's Commissions when lent to the Canadian service; the present is considered a favourable opportunity for effecting this object.
It has been settled between the two Governments as follows:-
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1. The Canadian Government shall recognise the Imperial commissions of British officers serving in or with the Canadian Militia as enabling them to exercise command over Canadian troops and shall accordingly cease to grant Canadian com- missions to such officers unless for the purpose of conferring on them higher local rank.
2. The Imperial Government (a) shall recognise as Army rank the substantive rank of officers of the Canadian " Permanent Force," and (b) shall recognise as equiva- lent to British Militia rank the substantive rank of officers of the Canadian non- permanent force.
This being settled as a question of policy it became necessary to consider what technical steps were necessary on either side to give effect to the decision.
The Judge Advocate-General was asked to advise; he wrote as follows:-
SECRETARY, ARMY COUNCIL,
In order to give effect to the proposal that officers of the Canadian Permanent Force should rank for the purposes of command with officers of the British Regular Forces and officers of the Canadian Militia (non-perma- nent) with officers of the British Militia, I consider that paragraph 3 (IV. and V.) of the King's Regulations should be amended by introducing words excepting Canada from its operation and by the introduction of a sub-section embodying the new regulations, Sections 46 and 47 of the Canadian Militia Act, and paragraph 50 of the Canadian Regulations being inconsistent with the proposed new regulations should be amended or repealed.
This no doubt can be arranged with the Canadian Authorities before the King's Regulations are amended as proposed.
In order to remove all doubt and to maintain discipline it would be désirable to give commissions to the officers of both permanent and non- permanent Militia in the same form as commissions are given in the regular forces and the Militia, respectively, in the United Kingdom.
September 7, 1905.
T. MILVAIN,
Judge Advocate-General.
The War Department communicated the substance of the Judge Advocate- General's advice to the Colonial Office on 16th September, 1905, and after some correspondence with that Office regarding the action necessary on the part of Canada to give effect to her side of the agreement, proceeded with the amendment to the King's Regulations suggested by the Judge Advocate-General.
It was decided that these amendments ought to take the form of a Royal Warrant and a draft Royal Warrant was prepared (a copy of which is herewith). When, however, the draft warrant came to be fully considered, it was suggested that inasmuch as an officer derives his legal power of command from his commission, an alteration in the regulations would not be sufficient to give him a power of com- mand which was not in terms within the scope of his commission. (See minute of 29th December, 1905, of the Military Secretary, and the Judge Advocate-General's minute of 11th January, 1906, " Departmental Minutes" herewith.)
On the other hand, however, it was suggested that the precise nature of an officer's powers is not regulated by his commission, but by the King's Regulations made (in this respect) in pursuance of Section 71 of the Army Act-the Commission being only, as it were, a certificate of qualification to perform military duties which are defined in another manner, i.e., by the regulations (see Mr. Brade's minutes of 8th February, 1906, and 16th February, 1906).
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It appears necessary at this stage to refer the Law Officers to the form of Com- mission issued to Regular Officers, British Militia Officers, and Canadian Militia Officers which are herewith.
With regard to these it will be observed that the commission issued to regular officers constitutes and appoints the person named therein to be an officer in Hig Majesty's Land Forces and enjoins that he is at all times to exercise and well dis- cipline in arms both the inferior officers and men under him who are commanded to obey the person named in the commission as their superior officer.
The British Militia Commission is in the same form, except that the person named is constituted and appointed to be an officer in His Majesty's Militia Forces.
The Canadian Militia Commission constitutes and appoints the person named to be a (rank) in His Majesty's Militia of the Dominion of Canada, the other por- tions of the commission are in the same terms as the British commisson, with the exception of the last two lines.
So far as the actual terms of the commissions above referred to are concerned, it is conceived that, with regard to the British Regular Commissions, the expres- sion "Land Forces" would include all the military forces of the Crown, whether Regular, Militia, or Volunteer, and whether British or Colonial, and that the com- mission of a regular officer is in terms sufficiently wide to confer a power of com- mand in respect of any of those forces (apart from any special law affecting the question).
With regard to the Canadian Militia Conimission, the appointment is to be an officer in the Canadian Militia, and it, therefore, appears open to question whether a Canadian Commission confers a power of command in respect of any of the forces of the Crown other than those named therein, viz., the Canadian Militia.
The War Department is at present concerned only with the powers conferred by the form of Canadian Militia Commission, and the question, therefore, appears to arise whether it is essential that an officer's commission should confer a power of command over the particular portion of the forces of the Crown with which he is serving or whether such power of command may not be conferred upon him by the Crown in some other manner as, e.g., by regulations.
The attention of the Law Officers is directed to Section 71 (1) of the Army Act (44 and 45 Victoria, c. 58) which provides as follows:-
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"For the purpose of removing doubts as to the powers of command vested, or to be vested, in officers and others belonging to His Majesty's Forces, it is hereby declared that His Majesty may, in such manner as to His Majesty may from time to time seem meet, make regulations as to the persons to be invested as officers or otherwise with command over His Majesty's Forces, or any part thereof, or any person belonging thereto, and as to the mode in which such command is to be exercised, provided that command shall not be given to any person over a person superior in rank to himself."
Section 190 (4) of the Army Act defines "officer" as meaning an officer com- missioned or in pay as an officer in His Majesty's Forces or any arm, branch, or part thereof; it also includes a person who, by virtue of his commission, is appointed to any department or corps of His Majesty's Forces or of any arm, branch, or part thereof.
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If Section 71 (1) of the Army Act enables a power of command to be conferred on a particular officer or officers over any part of the forces of the Crown irespective of the terms of such officer's commission it is conceived that the King could confer by regulations, made by Royal Warrant as proposed, the necessary powers of com- mand upon Canadian Militia Officers in respect of British Regular troops as has been proposed. This, however, is the first question upon which the opinion of the Law Officers is required.
It may be of use to the Law Officers to refer to certain authorities which appear to show that the conferring of conimand in the Army is a matter entirely of the Royal Prerogative, and that it is not necessary for that purpose that a commission should be issued, the legal basis of the officer's rank and power of command depend- ing on the appointment of the Sovereign and not on the commission. In Beak v.
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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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