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LAW OFFICERS to COLONIAL OFFICE.

Law Officers' Department,

Royal Courts of Justice,

30th March, 1917. SIR,

WE were honoured with your commands signified in Mr. Henry Lambert's letter of the 13th of February last transmitting to us certain papers with reference to the recommendation which had been made to you by the New Zealand Government that the title of the Officer administering the Government of New Zealand should be altered from Governor to Governor-General and requesting us to advise whether in our opinion the procedure suggested in Mr. Lambert's letter met the requirements of the case, and, if not, what procedure additional to or in substitution for that suggested should be adopted."

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to submit the following:-

Report.

In our opinion the proposed alteration in title may properly be made by Letters Patent, and Imperial legislation is not necessary. Section 80 of the New Zealand Constitution Act (15 and 16 Vict. C. 72) provides that the term “ Governor shall

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mean the person for the time being lawfully administering the Government of New Zealand, and similar provisions are contained in amending Acts-e.g., 20 and 21 Vict. C. 53, S. 3, and 25 and 26 Vict. C. 48, S. 9. Under the Letters Patent of the 18th November, 1907, the title is "Governor and Commander in Chief," and it appears to us that in the various Statutes the term "Governor " is used not so much by way of expressing the title of the office as by way of describing the person who governs, by whatever title he may be designated.

Whether Colonial legislation is necessary is a question which depends upon the terms of the various Colonial Statutes. Probably there is no such necessity. But this appears rather to be a matter for the legal advisers of the Government of New Zealand. They may think it expedient to amend the New Zealand Interpretation Act in the way suggested.

We have the honour to be, Sir,

Your most obedient, humble servants,

FREDERICK SMITH. GORDON HEWART.

The Rt. Honble. Walter H. Long, M.P., &c.,

Colonial Office.

*

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 cires, 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) Wt. 13-15, 25. 4. D&S. G. 1.

. I am, &c.

G. GRINDLE.

PUBLIC RECORD

OFFICE

Reference :-

C.O.885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

16PUBLIC RECORD OFFICE, LONDON

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