PUBLIC RECORD OFFICE
Mimmi
Reference :-
C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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"It will not be forgotten that this provision for Imperial troops has been the reason of inducing much of this expenditure, and that in the rebellion of America the want of proper accommodation was the cause of embittered feeling between the Colony and Home Government.
"At present the transfer has not been sanctioned by the Crown, and all that the office records show is a general sanction from the Treasury; but no formal instrument of kind has been executed between the two contracting parties. The matter,
any certainly ought not to rest in this imperfect understanding."
By Departmental arrangements no land held by the Secretary of State under the Defence Act, 1842, is transferred without the sanction first, of Her Majesty, and, secondly, of the Treasury.
If the land originally formed part of the hereditary possession of the Crown it is handed over (as in the case of Hull Citadel in 1859) to the Office of Woods. If pur- chased for the public services out of supplies it is sold, and the proceeds of the sale handed over to the Exchequer as extra receipts. Gratuitous grants of land (save with Parliamentary sanction, as for churches or schools, or of stores, would, it is assumed, be irregular, if not absolutely illegal, whether made to a public body or private person, either resident in United Kingdom or in a Colony.
In reference, therefore, to the transfers that have already been made, the authority to be obtained from Parliament should cover those transactions, and enable the Crown (by Order in Council or otherwise) to transfer the Colonial works of defence to the Local Governments, specified in the schedule to the Act, upon such terms as may be mutually agreed upon by the Imperial and local authorities. The sanction of the local legis- latures would also be needed in respect of obligations, if any, undertaken by the Colony towards the Imperial Government.
Your opinion is, therefore, requested—
1st. Whether any and what authority is needed by the Secretary of State for War for the transfer in the case mentioned to have been, or intended hereafter to be made to several Colonies.
2nd. And generally.
War Office, January 3, 1871.
OPINION.
1. The Canadian Statutes, 22 Vict. c. 24. and 22 Vict. c. 36., vest all lands held for military defence in the Secretary of State, with the exception of certain lands which were left or vested in the Canadian Government or directed to be sold, and to which we presume the questions do not refer. The Secretary of State acquired bis title to those lands by these statutes only without any sanction of the Imperial Parliament, the Imperial Defence Act, 1842 (5 & 6 Vict. c. 94.), and other Acts bearing upon the subject (such as 17 & 18 Vict. c. 67., the 18 & 19 Vict. c. 117., 22 Vict. c. 12., 23 & 24 Vict. c. 112, and 27 & 28 Vict. c. 89.), having no reference to lands out of the United Kingdom. This being so, we are of opinion that a local Act would be sufficient to authorise the transfer of these lands to the local authorities; but if Canada is intended to be bound by stipulations as to the user of the lands an Imperial Act will also be necessary, for otherwise Canada could not be prevented from annulling stipula- tions in a local Act, except by the exercise of the royal veto, which might not be desirable.
"such terms 88 may On the whole we think that, in order to effect a transfer upon
an Imperial "be eventually agreed upon by the Imperial and local authorities statute should be passed reciting the proposed agreement and enacting accordingly; and, further, that a local Statute should be also passed reciting and adopting the Imperial Statute, and making the necessary provisions in detail for vesting the lands.
Those observations refer only to Canada, but are applicable to all other Colonies where the title of the Crown to land in the Colony is derived only from Colonial legis. lation, regard being, of course, had to the special character of the enactments.
2. We do not feel able to advise more generally upon this subject.
Temple, January 19, 1871.
(Signed)
R. P. COLLIER.
J. D. COLERIDGE.
1045.
No. 684.
(GIBRALTAR.)
QUEEN'S ADVOCATE to FOREIGN OFFICE.
Temple, January 21, 1871. MY LORD,
I AM honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 19th instant, stating that he was directed to transmit to me the accom- "Hercules " panying correspondence relative to the employment of the steamship and other vessels registered at Gibraltar in towing out from that port vessels engaged in the contraband trade with Spain; and to request that I would take the same into my consideration, and furnish your Lordship with my opinion as to any further steps that may be taken to put a stop to such proceedings.
In obedience to your Lordship's commands I have the honour to
Report
That the charges brought against the "Hercules" and other steamers registered at Gibraltar by the Spanish Government are far too vague to call for any action on the part of your Lordship, and even if it could be established that the "Hercules" is in the habit of towing out of the port of Gibraltar merchant vessels which subsequently land contraband goods in Spain, there would be no legal offence in the owners of the steamer allowing her to be so employed unless the trade in which the merchant vessels may be engaged is in contravention of British law.
I have, &c. The Earl Granville,
&c.
&c.
0
16978.-718. 25.-5/86.
(Signed)
TRAVERS TWISS..
Y