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Sir,
No. 19.
Colonial Office to War Office
Downing Street
21st July, 1892.
Hong Kong &
I am directed by
In reply to your letter* of the 4th instant,
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Lord Knutsford to state that his Lordship has again considered the memorandum which was enclosed in his circular to the Colonies, and regrets that he is unable to deduce from it the conclusions which are drawn in your letter from the 4th paragraph of the memorandum. He reads that memorandum as an agreement that the Colonies shall pay immediately, or record for prospective payment, the value of any property surrendered to the Colony by the military authorities; but he does not find that it is agreed that the Colonies, as contended by the War Office, shall pay or record the value of their own interest in the land. It is, however, agreed that when a Colony does not wish to retain possession of the land for civil purposes, the same shall be sold and the proceeds dealt with in the same manner as if the Colony had retained the land; a condition which would be satisfied by the Colony paying or recording such an amount as would represent the military share of the proceeds, while applying its own share to the civil purposes of the Colonial Government.
2. I am directed to point out that the proper interpretation of the language of the memorandum is strictly a legal question, and it was for this reason that Lord Knutsford had proposed to submit the case to the Lord Chancellor, who, as a prominent member of the Home Government, would, after deciding the legal effect of the agreement, have been able to recommend to the two departments the best method of carrying it into effect. His opinion would have been perfectly independent, and would have been accepted as final by the three departments interested in this question, and thus a troublesome and difficult question would have been settled once for all.
3. As, however, Mr. Stanhope objects to inviting the assistance of the Lord Chancellor to settle the difference between the departments, Lord Knutsford is willing to state a case for the opinion of the Law Officers, and when they have reported upon the meaning of the agreement, any difficulty in settling the details will be considerably diminished, if not entirely removed. Until the proper legal construction of the memorandum has been decided, Lord Knutsford thinks there would be little use in referring the subject to the Cabinet.
4. I am only to add that if it be conceded, which, however, Lord Knutsford is not prepared to admit, as stated in the 5th paragraph of your letter, that a right of occupation for an unlimited period is, for all practical purposes, as valuable as the freehold, or in other words, that the fee simple, while subject to such a right of occupation, has no appreciable value; then the contrary must also be true, namely, when lands are about to be surrendered as being no longer required for the military purposes, which alone stand between the Colony and the full enjoyment of its land, the military right of occupation has no appreciable value, and the Colony is entitled to claim the fee simple freed from any obligation to the military authorities or anybody else.
Sir,
No. 20.
War Office to Treasury.
War Office,
9th August, 1892.
With reference to the letter addressed to you from this office on the 22nd July,
Hong Kong
Hong Kong 8
enclosing copies of correspondence between the Colonial Office and this office, on the subject of the general principles which should govern the assessment of the value of military lands surrendered to a Colony, I am directed by the Secretary of State for War to transmit herewith, for the information of the Lords Commissioners of Her Majesty's Treasury, the enclosed copy of a further letter from the Colonial Office, and to request that you will be good enough to move their Lordships to express their opinion upon the questions at issue between the two departments.
2. Briefly stated those questions are----
I-Whether the value of the lands should be taken (a) as the full saleable value, or (b) as the saleable value, less any interest which the Colony may be considered to possess in the lands, notwithstanding their having been set aside for defensive purposes.
II-Whether the above question is one that should be decided (c) as a matter of law, by reference to legal authority, or (d) in final resort, if the three departments concerned are unable to agree, by reference to the Government.
3. The opinion of Mr. Stanhope on questions I. and II. is fully stated in the letters* addressed to the Colonial Office from this office on the 23rd March, Hong Kong S, and 4th July, Hong Kong 8
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nor does it seem necessary that he should do more than make the following observations on the enclosed letter from the Colonial Office.
4. The Colonial Office, in paragraph 2, state that the "proper interpretation of the language of the memorandum enclosed in the Colonial Office circular of the 9th June, 1890, addressed to the various Colonies is strictly a legal question, and it was for this reason that Lord Knutsford proposed to submit the case to the Lord Chancellor"; but this is scarcely borne out by the Colonial Office letters of the 4th December, 1891, 10th February, 1892, and 19th May, 1892, in which the question for proposed legal arbitration is the general question of the mode of valuing the lands, and not the interpretation of the memorandum. Moreover, the memorandum itself does not possess the character of an Act of the Legislature or of a legal instrument. It was the outcome of the deliberations of an inter-departmental committee endorsed by the Treasury, Colonial Office, and War Office, and its right interpretation and application are not matters of pure law, but of policy, and belong in last resort, as this office contends, to the Government.
R. H. KNOX.
• No. 18.
R. H. MEADE,
No. 21.
War Office to Colonial Office.
War Office,
11th August, 1892.
I am directed by the Secretary of State for War to acknowledge the receipt of your letter† of the 21st July, and to acquaint you, for the information
‡ No. 19.
Nos 16 and 18.
+ Nos. 12, 18, and 17,
5M
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