PUBLIC RECORD OFFICE
Reference :-
C.O. 882
COPYRIGHT PHOTOGRAPH—NOT TO
5 PUBLIC RECORD
ALLY WITHOUT
BE REPRODUCED
OTOGRAPHIC-
ON OF THE
LONDON
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So far as is known to the Colonial Office, no expendi- ture from military funds is devoted to the reserves.
21. It is admitted by the General in command that neither the Lotus Pond, the Racket Court Garden, nor the reclaimed land is occupied or required for any military purpose, but the military authorities refuse to admit the claim of the Colonial Government unless they consent to purchase at a cost of several thousand pounds a private house on which it is proposed to build barracks, and give up a building which is imperatively needed by the Colony as offices for the engineers of the breakwater, for whose duties no other place would be equally effec- tive. This military demand is the more remarkable seeing that at the same time the Military Officers are applying to the Colony for a tract of land in the hills, containing about 1,000 acres, to be used as a hill station.
22. The Colonial Government assert that none of these reserves are military properties within the meaning of the memorandum attached to the circu- lar despatch of 9th June 1890, and they contend that if the possibility of any such financial bargain as is set out in the memorandum had been contem- plated when the reserves were created, the area would have been fixed with greater certainty, and with more restricted liberality. As regards the price demanded by the military for waiving their claim to the Lotus Pond, Racket Court Garden, and reclaimed land, and as negativing the idea of any absolute alie- nation of the reserves, the Colonial Government appeal to a despatch from the Duke of Newcastle, No. 13 of the 28th January 1862. That despatch quoted a passage from a letter from the War Office, dated the 18th October 1858, in which expression was given to "Major-General Peel's fear that the "Colonial Government must in a great degree con- tinue to feel the restrictions which are inseparable "from the existence of fortifications," but that whenever it might be possible to relax these re- "strictions without material injury to the defences, Major-General Peel would be quite prepared to entertain any proposal for such relaxation." The Duke of Newcastle then went on to say that he apprehended "that this passage expressed the princi ples on which questions of this kind are still to be dealt with," and that "he understands that the Ceylon reserves are not held by the military authorities with a view to profit, but remain under "certain restrictions interfering with their use by "the Colonial Government, only because their abso-
04
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14
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lute occupation by the Government would be inconvenient in a military point of view, and that "such restrictions will be relaxed if the reserves should ever prove unnecessary for military pur- poses."
23. The War Office do not admit this principle, contending that under the circular despatch of June 9, 1990, they are entitled to receive the full inarket value of any part of the reserves which the Colony wish to have, although it is admittedly unnecessary for military purposes.
f
SIR,
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24. It will therefore be necessary to ask the Law Officers whether in their opinion these reserves at Colombo are military properties within the meaning of the circular despatch. The same question should be asked about the Hong Kong lands, and if the answer is in the affirmative, the further question above referred to must also be put.
Colonial Office,
21 September 1892.
APPENDIX I.
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COLONIAL OFFICE to WAR OFFICE.
J. B.
Downing Street, July 21, 1892.
In reply to your letter of the 4th instant, I am directed by 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 con- clusions 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 récord 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 Memo- randum 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 occupa- tion 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.
5. A copy of this letter will be forwarded to the Lords Commissioners of the Treasury.
The Under Secretary of State,
War Office.
I am, &c. (Signed)
R. H. MEADE.
A £