CO885-(15-16) — Page 434

PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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Tyrrell, Carth., p. 31 III. Will. and Mary), in an action in trover for a ship, the defendant pleaded that he acted as the King's servant as captain of a man-of-war, but he did not allege any commission. On demurrer it was held that it was not necessary that he should have a commission, as the King might give authority by warrant sub- scribed. In the case of Kirwan v. Cockburn (5 Esp., p. 232, 1805) it was held by Lord Ellenborough that the "London Gazette " was not proper evidence of an officer's appointment in a regiment because the commission was the best evidence. but it was intimated that the "Gazette" would be admissible if the defendant had had notice to produce the commission but had failed to do so. This does not seem to affect the decision of Beak v. Tyrrell. In Bradley v. Arthur (4 B and C 292) the defendant had been appointed by the Governor of a Colony to command the troops in a certain district, viz., Honduras. He was then a full commissioned officer in the Army. Pending the duration of his command the regiment in which he held his commission (it may be noted that officers' commissions at that time were regi- mental commissions only) was disbanded, and in that way he ceased to hold a com- mission. He then purported to still exercise his command in Honduras and the plaintiff sued him for false imprisonment, having been placed under arrest by him for refusing to obey a command, the plaintiff being another officer who was under his command if his command was valid. The question of validity of command, therefore, came in issue, and the Court held that the command remained valid and the action failed. The Law Officers may be referred to the judgment of Chief Justice Abbott (p. 304) where he says: "The command of the Army belongs entirely to His Majesty, and it is a matter for his discretion and his authority only, except so far as this discretion and authority are regulated and controlled by the Statute Laws." It was suggested by Bayley, J. (p. 307) that the limits to the Crown's power to appoint to a military command was based on the usage of the service; it could not. for instance, appoint a mere civilian. However that may be, no such question would appear to arise in the case now before the Law Officers, because these Canadian officers are fully qualified in every respect. The general principle to which Bayley, J. is referring appears to be that referred to in Bacon's Abridgment, entitled "Office (1)," and in Chitty's "Prerogatives," p. 83, viz., that the Crown is bound to appoint capable persons to offices requiring skill. The theory which is here contended for. that the commission is merely the evidence of the Crown appointment and not the essence of the appointment, is borne out by the Act 25 and 26, Vic., cap. 4, which was passed for the purpose of enabling certain commissions to be signed otherwise than by the Sovereign personally, but it is clear from the preamble that the appoint- ment was regarded as taking effect before the issue of the commission, and the commission is spoken of as being evidence only of the appointment. In Clode's “Military Forces," Vol. 2, p. 441, the Order in Council made under this Act is set out, and it is provided that the commissions so signed were to bear date as on the date of the direction under the Sign Manual appointing or promoting an officer.

It is suggested, therefore, that, in principle there is no reason why officers holding commissions for the Canadian Militia only should not by regulation be given command and rank in the British Army, without the necessity of issuing to them temporary commissions as is, in fact, done by paragraphs 3 (v) and 4 of the King's Regulations as to Militia and Volunteer Officers, who also have commissions limited to one branch of the service.

It may be mentioned that according to the former practice as appearing from the Order in Council above mentioned, made under 25 and 26 Vic. C. 4., commissions in the regular army used to be limited to one branch, e.g., cavalry, infantry, or artillery; regulations of the day must nevertheless have provided that a cavalry officer should, on occasion, command infantry, or vice verså.

It would appear that this was so at any rate in 1859. The Queen's Regulations for that year provide as follows:—

*

“(1) All commands belong to the senior officers whether of cavalry, artillery, engineers, infantry, or marines. In case two commissions of the same date interfere, a retrospect is to be had to former commissions.

(2) When regiments or detachments are united, whether in camp, garrison, or quarters, the senior officer, either by brevet or otherwise, is to com- mand the whole."

Similarly, officers with commissions limited to the army or navy, may, by regula- tion, under certain circumstances, exercise command over the other branches.

It is suggested that the usages of the services in these matters may be legiti- mately invoked in support of the legal position submitted.

It will further be observed from the Minutes of 8th and 16th February, 1906, that another question has arisen in the matter, viz., whether or not a Canadian Militia Officer serving with British regular troops is subject to military law under the Army Act, and, if not, whether his position in command of such troops (who are themselves subject to military law under the Army Act) would be an irregular

one.

Canadian Militia Officers are divided into two categories:-

Those of the permanent force;

(2) Those of the non-permanent force.

The Canadian Militia Act, 1904, provides as follows:-

Section 74. "The Army Act for the time being in force in the United Kingdom, the King's Regulations, and all other laws applicable to His Majesty's Troops in Canada, and not inconsistent with this Act, or the regulations made thereunder, shall have force and effect as if they had been enacted by the Parliament of Canada for the govern- ment of the Militia, and every officer and man of the Militia shall be subject thereto from the time of being called out for active service and also during the period of annual drill or training under the

pro- visions of this Act, and also at any other time while upon military duty or in the uniform of his corps upon or within any rifle range or any armoury or other place where arms, guns, ammunition, or other build- ing or place used for Militia purposes or during any drill or parade of his corps at which he is present in the ranks when going to or from the place of drill or parade, and also whether in uniform or not at any drill or parade of his corps at which he is present as a spectator.

"2. Officers and men of the permanent force, and members of the permanent staff of the Militia shall at all times be subject to Military Law."

It would, therefore, appear that officers of the permanent force are always bject to military law under the Canadian Militia Act and regulations, and that officers of the non-permanent force are so subject while upon military duty. It may possibly be considered that they would be upon military duty whilst serving with the regular forces in the United Kingdom, and that both classes of officer would, therefore, be subject to military law under the Canadian Militia Act and regulations whilst so serving. It would appear, however, having regard to the provisions of Section 74 of the Canadian Militia Act that the provisions of military law under the Canadian Militia Act and regulations may differ very materially from the provisions of military law under the Army Act and King's Regulations (to which the British regular forces are subject) owing to inconsistencies between the Army Act and the King's Regulations on the one hand, and the Canadian Militia Act and the regulations made thereunder on the other, and that Canadian Militia Officers who are serving with British regular troops would not necessarily by virtue of their status as Canadian Officers alone be under the same code in all respects as the troops with which they are serving.

The question, however, arises as to whether they would come under the same code as the troops with which they are serving by virtue of any special provisions of the Army Act or otherwise.

In this connection the Law Officers are referred to Sections 175 and 177 of the

Army Act, which provide as follows:-

Section 175. "The persons in this section mentioned are persons subject to Military Law as officers, and this Act shall apply accordingly to all the persons so specified; that is to say:-

*(1) Officers of the regular forces on the active list, within the meaning of any Royal Warrant for regulating the pay and promotion of the regular forces and officers not on such active list who are employed on military service under the orders of an officer of the altered by regular forces, who is subject to Military Law.

Thus

46 Vic. c. 6,

8. 9. A. A.

Act, 1889.