ARE TERRITORIALS VOLUNTEERS?

Evening Star, Issue 14531, 6 December 1910, Page 5

ARE TERRITORIALS VOLUNTEERS?

THE COURT APPEALED TO. DESTINATION~OF A BEQUEST. According to Mr Eraser, K.C., it is extremely probable that quite a number of bequests have been made to volunteering in the past in New Zealand. How trust funds left by will for such a purpose- will stand affected by the now Defence Scheme will probably have to be decided in manycases in our law courts. Possibly the first of these cases was argued before His Honor Mr Justice Williams at a Banco sitting of the Supremo Court in Dunedin today. It appears that tho late Mr Samuel Henry Andrews left a will, under which Dunedin Volunteers benefited to tho extent of between £IOO and £2OO a year. In the event of Dunedin Volunteers being disbanded or ceasing to exist as a Tegiment the property providing the trust funds were to go to the City Corporation. Thus it came about that the City Corporation were the plaintiffs and Lieutenant-colonel Vcre Staunton Smyth and the Attorney-General were the defendants in this morning's proceedings. These consisted in the hearing of plaintiffs' application for an order determining whether upon the true construction of the will of tho late Mr Andrews and of the Defence Act of 1900 the trusts of the will for tho benefit and advantage of the Dunedin Volunteers have lapsed or become inoperative owing to the passing of tho Defence Act, 1908, and the Defence Act. 1909, or otherwise. Mr W. C. MacGregor appeared for plainLiffs, and Mr J. F. M. Frascr, K.C., for defendants. Mr MacGregor argued that in tho ea.->o if New Zealand the change from volunteers to Territorials was a change in status as well as in name, whereas in tho case <>l Britain the change was ono in name only (English law had been quoted as a precedent). His Honor asked whether a member of the Territorial forces, who had been enrolled priOT to the passing of the Defence Act of 1909, could jesign if ho wished to. Mr Fraser contended that he could. His Honor asked it there was anything in tho Act defining tho terms of service. Mr MacGregor referred His Honor to the sections dealing with general training, a;>d added that a member of the force must make- himself efficient in three years, anil would then bo drafted into the reserve.

His Honor: Supposing a man in the Territorial forces does not turn up, and says "T am not going to serve." Mr MacGregor: He commits a breach of the Act. Mr Fraser: And he then comes under military law. Counsel laid stress on tho point that for thoso over- the ago of twentyane years there was no compulsion. Ail lhos-3 now over twenty-one years were still rolunteers, ho contended.

His Honor and counsel made exhaustive analysis of sections of the Consolidating Act of 1908, tho Amending Act of 1909, and the new Act passed during the session just ended. . Mr MacGregor: There is one thing clear: that tho volunteers havo ceased to exisb as volunteers. It is not a mere question of change of name. It is a change of status. They have ceased to become freo men. They "are slaves in a sense—slaves of the State. Mr Fraser: Take B Battery. They could resign to-morrow. Mr MacGregor: Yes, and they would then be liable for service still. Mr Fraser repeated that compulsory service only applied to those under twenty-

ane. . . Mr MacGregor urged that Territorials no longer answered to the description of volunteers. If a man left money for the benefit of the volunteers in his district, it did not follow that he would allow it to be used for the benefit of men compulsorily bound to serve. Every man, with certain ?xemr>tioos, was liable to compulsory service. " Clearly the volunteer force, as such, had ceased to exist. To continue the benefits to the Territorials would be doing violence to the terms of tho will. Air Fraser argued that no volunteer corps formed before the Act of 1909 had ceased to exist by virtue of that Act, tho effect of which 'had been to reorganise and rename them, but not to do away with them. The Act providei that property held by a volunteer corps was still to be held by it under the name of a unit of the Territorial Force. Where the Legislature had intended that a corps should ceaso to exist it had said so in plain terms, a proclamation having to be made to that efiect. Volunteers might keep their uniforms, accoutrements, and all other property; nor could they be forced to join any other corps or unit without their own consent. The only important differences made to volunteers by the new Act were—(l) that they would not elect their officers below the rank of field officers, and that they were made subject to military law. His Honor: Can a man join the Territorials now?

Mr Fraser: Oh, yes; if a company is not up to full strength. His Honor asked whether it was not a fact that nothing had yet been done by the Govcrnor-in-Council to give effect to the provisions for compulsory service. Mr Fraser: The Government are waiting for the new Commandant.

' Mr MacGregor said that even if Mr Fraser's contention were sound, there would bo Borne men in a~corps who would be volunteers and others who wore not. Thus, in B Battery fifty-five of the men wero under twenty-ono years and fifty-six were ovor twenty-one. In such a "case it would be really impossible to administer the trust for the benefit of a number which would bo continually altering. Again, hitherto the trust had been administered, for the benefit of four out of tho six companies forming the First Battalion of Otago Rifles—the Wakari Rifles and Green Island Rifles having been construed as not being " Dunedin volunteers," and so being outsido the scope of the trust. Under the new Territorial scheme the battalion would consist of eight companies. What would be the position as regarded the new companies? I'ossibTy the whole argument was premature, and it might* bo better to wait until the new scheme came into operation. The matter had been in a sense urged upon the City Council by a ratepayer, and tho Council deemed it their duty to bring it beforo the Court at the earliest moment. His Honor said that ho would deliberate over tho matter, and his decision was reserved.