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2. This question was not put to the Law Officers, who deal, as I under- stand them, with the case of Canadian commissioned officers, and suggest two alternatives to avoid the inconveniences which might arise from "Officers of the Canadian Militia being subject at the same time to two possibly conflicting codes."

Having regard to the importance of this question it would seem desirable, however, that the questions raised by the War Department should be put before the Law Officers for the purpose of ascertaining whether the interpretation put upon the Opinion of 25th June in connection with the questions raised by the War Department correctly represents the Opinion of the Law Officers. -

It will be observed that question No. 2, contained in the Minute of 9th July, was not specifically before the Law Officers on the former occasion.

The Law Officers are accordingly requested to advise :—

(1) With regard to the questions raised by the War Department in 1

of the Minute of 9th July, 1906

(2) Whether or not Imperial officers serving with the Canadian Militia are subject in virtue of the Canadian commissions which they hold to Canadian military law to the exclusion of British military law where the two codes conflict?

Opinion.

1. (A) The King's Regulations mentioned in our former opinion would con- stitute the officers of the Canadian Militia (Permanent Force), British Regular officers and the officers of the Canadian Militia (Non-permanent Force) officers of the British Militia.

(B) When serving with British troops alone officers of the Canadian Militia (whether of the Permanent or Non-permanent Force) would, under the new regula- tions, still continue to be also Canadian officers and subject as such to Canadian military law as well as to British military law, unless provision were made as sug- gested in our former Opinion for determining this dual liability (see 3, 4, and 5).

2. Imperial officers serving with Canadian troops under temporary Canadian commissions are, in our opinion, liable both to British and to Canadian military law, if the King's commissions held by such officers continue in force during the currency of their Canadian commissions.

3. Any matters raising practical difficulties in the above or in any other con- nection can and should be dealt with in settling the form of the new regulations. In any case such regulations ought not to be issued until they have been submitted to and approved by the Government of Canada.

Law Officers' Department,

7th August, 1906.

JOHN L. WALTON.

W. S. ROBSON.

29645

No. 42.

(CANADA (NEW BRUNSWICK).)

LAW OFFICERS to COLONIAL OFFICE.

[Administration of the Fugitive Offenders Act, 1881, in the Colonies. Validity of Warrant endorsed under Sect. 3 of the Act.]

MY LORD,

Royal Courts of Justice,

August 11, 1906. WE were honoured by your Lordship's commands signified to us by Mr. Lucas in his letter of the 13th June last, stating that he was directed by your Lordship to lay before us the correspondence and to ask the favour of our report upon certain questions as to the administration of the Fugitive Offenders Act, 1881, in the Colonies. That it would be seen that a Magistrate acting in New Brunswick, under Section 5 of the Act, questioned the validity of a Scots Interlocutor of warrant duly endorsed under Section 3 of the Act, and that Mr. Secretary Gladstone concurred with your Lordship in thinking that such action on the part of the Magistrate was ultra vires.

That he was to request us to take this letter and the accompanying papers into our consideration and to report:—

(1) Whether a Magistrate, acting under Section 5 of the Fugitive Offenders Act, 1881, could question the validity of a warrant duly endorsed under Section 3?

(2) Whether a Judge of a Superior Court or any of the other authorities men- tioned in Section 3 of the Act could refuse to endorse a warrant which was valid by the law of that part of the Empire in which it was issued?

(3) Whether the usual form of Scots Interlocutor, as issued in the case of David Reid, was open to question

(a) by the Magistrate, acting under Section 5 of the Act;

(b) by any of the authorities acting under Section 3 of the Act? (4) Generally.

We have taken the matter into our consideration, and in obedience to your Lordship's commands, have the honour to

Report-

That, in our opinion, a Magistrate, acting under Section 5 of the Fugitive Offenders Act, 1881, cannot question the validity of a warrant duly endorsed under Section 3. We think that the words in Section 5 giving the Magistrate the same jurisdiction and power as near as may be as if the fugitive were charged with an offence committed within his jurisdiction must be read subject to the later words which make it the duty of the Magistrate to commit the fugitive to prison if the endorsed warrant is duly authenticated and the proper evidence is produced.

2. We think that if a warrant is valid by the law of the country in which it is issued it should be accepted as valid by the authorities mentioned in Section 3 and endorsed accordingly.

3. We understand that the warrant in question is good by the law of Scotland and, in that case, we think it is not open to question by any of the persons men- tioned.

4. We think that it would be convenient that all warrants issued in Scotland should be substantially in the same form, and that the form containing the usual averments is preferable to that used in this case.

We have, &c.,

JOHN L. WALTON. W. S. ROBSON.

The Right Honourable

The Earl of Elgin, K.G.,

&c., &c.,

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Wt 1610 10,06 D & S 6

23679

&c.

PUBLIC RECORD OFFICE

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C.O.885

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