PUBLIC RECORD OFFICE
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استان
·885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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of the name of Pouguet, viz., Rs. 112,000, the Secretary of State for War would have to accept his offer.
That offer was subsequently increased to Rs. 120,000, and the sanction of the Treasury was given to the sale to Mr. Pouguet for that sum.
The Colonial Government continued to urge (p. 10) that the property should be handed over to them free of charge, and the Colonial Office suggested that the opinion of the Law Officers should be taken on the "legal or equitable" claim of the Colony.
The War Office suspended the sale, but the officer in command at Mauritius having been advised by the Procureur-General that by the colonial law a contract existed between the War Department and Mr. Pouguet, the sale to that gentleman was carried into effect by deeds of the 22nd September 1885 and 8th October 1885 (copies of which are sent herewith), the Commanding Royal Engineer, Mauritius, executing the deeds under a power of attorney from the Secretary of State for War, dated 4th March 1885, a copy of which is annexed to the copy deed of the 22nd September 1885.
The purchase money received from Mr. Ponguet had been transferred to the Treasury chest and credited to appropriation in aid of the Imperial Exchequer before the War Office telegram of the 18th November 1885 (p. 15 of Correspondence) was received by the General Officer Commanding the troops in the Colony.
Neither the site of the artillery barracks at Port Louis, the disposal of which is not now in question, nor of the military hospital, was acquired, nor were the buildings erected at Imperial cost, but they have, since the concession of 1841, been maintained and improved out of Imperial funds.
Argument for War Department.
The grounds upon which the War Department consider that the Mauritius Govern- ment have no claim to the site and buildings of the military hospital at Port Louis, or the purchase money derived from the sale thereof to Mr. Pouguet, will be found stated in their letters to the Colonial Office of the 28th November 1882 (p. 6) and 26th May 1885 (p. 11 of Correspondence).
The proceeds of the sale have been applied to the reduction of the vote for the new barracks and hospital at Curepipe, and the hospital has been completed, and the Imperial Exchequer will make no profit out of the sale.
(Mauritius is a Crown Colony, acquired by conquest in the year 1810. Its constitu- tion consists of a Governor, with an Executive Council of five officials, and a Legislative Council of 27 members, of whom eight aro ex-officio and nominated by the Crown, and 10 elected. The revenue of the Colony is 800,0001., and it makes an annual con- tribution to the Imperial military establishment of about 21,0001.)
It is submitted that there is nothing in the form of the grant of the site of the hospital to the officers of Ordnance, dated the 2nd August 1841 (p. 4 of Correspon- dence), to prevent the Secretary of State for War from making a valid conveyance of it to a purchaser under Article VII. of the Ordinance 51 of 1861.
The "
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property freehold possession and enjoyment " of the plot of ground was granted "for ever to the officers of Ordnance for and on behalf of Her Majesty, to be by them and their successors held, enjoyed, and disposed of for the service of Her Majesty. Her heirs and successors.
The title became transferred by Article I. of the said Ordinance to Her Majesty's Secretary of State for the time being holding the seals of the War Department as Trustee for Her Majesty.
الله
As it was not required for any "undertaking for the public benefit," under the provisions of Ordinance 57 of 1860,* it could not be conveyed by the Officer Com- manding the troops in Mauritius, under Article VI. of the Ordinance of 1861, but it has been properly conveyed to Mr. Pouguet by the Secretary of State's lawful attorney under the provisions of Article VII.
With reference to the concluding paragraph of the Colonial Office letter of the 18th August 1885 (p. 12 of Correspondence), the Colonial Fortifications Act of 1877, 40 & 41 Vict. c. 23, enacts that fortifications, works, buildings, or land in any Colony held in trust for the defence of that Colony may be vested in the Governor of the Colony by order of Her Majesty in Council, upon such terms and conditions, and with such reservations, &c. as are specified in the order, and any representation by a Secretary of State as to the expediency of any such order must lie upon the table of both Houses of Parliament for 40 days before submission to Her Majesty.
• Sent herewith.
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It is submitted that there is nothing in this enabling Act to prevent the Secretary of State from selling land and buildings vested in him as Trustee for Her Majesty under Article VII. of the Ordinance of 1861, and applying the proceeds of sale towards Imperial objects, viz., the building of an hospital for the troops elsewhere in the island, or in other words "for the service of Her Majesty."
The object of the Act of 1877 was to ensure that no colonial fortifications should be gifted to a Colony without the express consent of Her Majesty and Her Parliament, and it is not understood how the rights of the War Secretary to deal with the War Department property in a Colony and convert it into money for the Imperial Exchequer is restricted by its provisions.
A memorandum by the Inspector-General of Fortifications, dated 22nd April 1876, is sent herewith, showing the system proposed to be adopted as to the transfer of defensive works and military reserves in the Colonies.
Mauritius is specially referred to in paragraphs 11 and 15 of this memorandum. Paragraph 23 (d.) contemplates the surrender to a Colony free of charge of land derived (as was the case with this hospital) by cession from that Colony, but only in cases where the land is no longer required for military purposes. In the present case hospital accommodation was, and still is, required for the Imperial troops.
Even if it should be held that the Secretary of State had no legal right to sell the hospital to Mr. Pouguet, and that the Colony is entitled to the proceeds of sale, the Secretary of State would have a claim in respect of such sums as have been expended by him in maintaining and improving the property.
Argument for Mauritius Government :
Being a Report, dated the 16th September 1886, from the Colonial Procureur-General to the Governor of the Colony.
Report No. 1,042.
The question is whether the Secretary of State for War can sell the property to a private person.
The circumstance that it is intended to apply the proceeds of the sale to the building of barracks and hospital for the troops in the Colony does not appear to be material. For if the right to convert the property in money exists, there is nothing in the grant to prevent the money being used for building barracks in another Colony or being simply paid into the Imperial Exchequer.
Nor does Ordinance No. 51 of 1861 affect the question. It vests in the Secretary of State lands previously granted to, acquired by, or vested in the principal officers of the Ordnance, but does not give any right not previously existing. If, therefore, the right of selling the military hospital does not exist under the grant, Ordinance' 51 of 1861 cannot have the effect of creating it.
With regard to the Colonial Fortifications Act of 1877, I do not think my predecessor, Mr. Pellereau, referred to it as barring the right of selling the military hospital, and it may be admitted that if the right exists under the grant the Act does not restrict it. The case for the War Department appears to turn entirely on the words "disposed of" in the last paragraph of the grant. It is contended for the Colonial Government that the words have not the effect of authorising a sale to a private person.
Effect must be given to the preamble, which shows the intention of the grantor. The intention was to convey the property to the principal officers of the Ordnance Department, or for such other public service or services as Her Majesty might from time to time direct by Order in Council.
It was, therefore, contemplated the land would be held by the Ordnance when necessary for the-use and service of that Department, and that when the Ordnance no longer required it, it would pass to such other branch of the public service as might be indicated by the Queen. Thus the sovereign might, at any time after the grant, issue an Order in Council restoring the property to the Colonial Government to be used as a public hospital, Government office, or for any such "public service.". In other words, the intention of the grantor, as shown by the preamble, was that the property would remain public property, and be always available for the use of some Department or other of the public service.
A conveyance to Mr. Pouguet defeats the intention, and defeats besides the power of the Queen, Her heirs and successors, to issue such Orders in Council as are referred to.
PUBLIC RECORD OFFICE
Reference :-
C.O. 8
885
COPYRIGHT
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- PHOTOGRAPH-NOT TO |
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ɔmitted that there is nothing in this enabling Act to prevent the Secretary of a selling land and buildings vested in him as Trustee for Her Majesty under I. of the Ordinance of 1861, and applying the proceeds of sale towards bjects, viz., the building of an hospital for the troops elsewhere in the island, : words "for the service of Her Majesty."
ect of the Act of 1877 was to ensure that no colonial fortifications should be a Colony without the express consent of Her Majesty and Her Parliament, not understood how the rights of the War Secretary to deal with the War it property in a Colony and convert it into money for the Imperial
is restricted by its provisions.
randum by the Inspector-General of Fortifications, dated 22nd April 1876, with, showing the system proposed to be adopted as to the transfer of Forks and military reserves in the Colonies.
18 is specially referred to in paragraphs 11 and 15 of this memorandum. 23 (d.) contemplates the surrender to a Colony free of charge of land
8 was the case with this hospital) by cession from that Colony, but only ere the land is no longer required for military purposes. In the present al accommodation was, and still is, required for the Imperial troops.
t should be held that the Secretary of State had no legal right to sell the Mr. Pouguet, and that the Colony is entitled to the proceeds of sale, the f State would have a claim in respect of such sums as have been expended naintaining and improving the property.
Argument for Mauritius Government :
port, dated the 16th September 1886, from the Colonial Procureur-General
to the Governor of the Colony.
on.
Report No. 1,042.
tion is whether the Secretary of State for War can sell the property to a mstance that it is intended to apply the proceeds of the sale to the building and hospital for the troops in the Colony does not appear to be material. For to convert the property in money exists, there is nothing in the grant to money being used for building barracks in another Colony or being simply e Imperial Exchequer.
Ordinance No. 51 of 1861 affect the question. It vests in the Secretary of previously granted to, acquired by, or vested in the principal officers of the ut does not give any right not previously existing. If, therefore, the right
e military hospital does not exist under the grant, Ordinance 51 of 1861 the effect of creating it.
rd to the Colonial Fortifications Act of 1877, I do not think my predecessor,
u, referred to it as barring the right of selling the military hospital, and mitted that if the right exists under the grant the Act does not restrict it. or the War Department appears to turn entirely on the words "disposed ist paragraph of the grant. It is contended for the Colonial Government da have not the effect of authorising a sale to a private person.
st be given to the preamble, which shows the intention of the grantor. wus to convey the property to the principal officers of the Ordnance or for such other public service or services as Her Majesty might from time to Order in Council.
orefore, contemplated the land would be held by the Ordnance when tho-use and service of that Department, and that when the Ordnance no ed it, it would pass to such other branch of the public service as might be the Queen. Thus the sovereign might, at any time after the grant, issue Council restoring the property to the Colonial Government to be used as ital, Government office, or for any such "public service." In other words, of the grantor, as shown by the preamble, was that the property would property, and be always available for the use of some Department or ublic service.
ace to Mr. Pouguet defeats the iptention, and defeats besides the power of er heirs and successors, to issue such Orders in Council as are referred to.