PUBLIC
ดงการม
ון וויין וויון וווד
Reference —
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ཅས་ ་་་པ་་་་་་་་
ALLY WITHOUT PERMISSION OF THE
BE REPRODUCED PHOTOGRAPHIC-
exercised in places to be selected within a fixed period, and, the selection not having been made within the time prescribed, the concessions were revoked. That those concessions therefore stood on a different footing from the concessions at present under review.
That Mr. Lucas was to request us to take the papers into our consideration and to favour you with our opinion on the following points :-
1. Whether the Government Notifications of the 6th February, 1885, and 3rd February, 1888, issued before the establishment of a Protectorate over Pahang could be regarded as justifying the cancellation or modification of a concession granted by the Sultan of Pahang prior to the establishment of a Protectorate by Her Majesty's Government.
2. Whether the concession granted to Tan Hay Seng, on the 4th June, 1887, and now held by the Straits Development Company can properly be cancelled by the Sultan with the sanction of Her Majesty's Government or any other, and if so, on what grounds. 3. Whether failing cancellation the Sultan should be advised to proceed under clause 4 of the concession as suggested in the Company's letter of 6th September, 1899.
4. Generally.
We have taken the papers into our consideration, and in obedience to your commands
have the honour to
Report-
That in our opinion the concession may properly be cancelled.
It was taken with full notice of the intimation by the British Government that concessions taken from States where there was not a British Resident could not be recognised. It is true, as Mr. Kershaw points out, that at the date of this notification the Sultan of Pahang was nominally Sovereign of his own territory. But it seems clear that he was within the British sphere of influence the establishment of a Protectorate was a probable event, and he cannot be regarded in the same light as an entirely independent Sovereign, whose territory is afterwards acquired by another Power subject to the obligations he has contracted.
If a concession is, under such circumstances, taken from a local potentate it seems to us that there is no breach of faith involved in its cancellation at the instance of the paramount Power when it has assumed control.
In 1889 the concessionaires were notified that the concession would be recognised to the extent they might show themselves able to work it within the three years mentioned in clause 4.
So far from being a recognition of the concession, it seems to us that this notice was an intimation that it would be recognised only in a certain event and to a certain extent. Little, if anything, has been done, and there is no reasonable prospect that anything will be done by the concessionaires.
It seems to us that under such circumstances there is no obligation, either legal or moral, to allow the concession to remain in force, with the result that while doing nothing themselves the concessionaires might recover by arbitration a share of the profits of any other persons who might work the timber.
Having regard to the view we take, it might perhaps be as well to allow the deputation to see the authorities at the Colonial Office before the decision to cancel the concession is announced.
We have, &c.,
The Right Honourable Joseph Chamberlain, M.P.,
&c.,
&c.,
&c.
RICHARD E. WEBSTER.
ROBERT B. FINLAY.
30433.
SIR,
No. 238.
(ST. HELENA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
3rd November, 1899.
-
WE were honoured with your commands signified to us in, Mr. Bertram Cox's letter of the 26th ultimo, stating that he was directed by you to transmit to us a copy of a Despatch with two enclosures, dated 5th September last, from the Governor of St. Helena, with reference to a recent sale by the Diocesan Finance Board of certain landed property of the Episcopal See in that island.
That the powers of the Diocesan Finance Board during the vacancy of the See were vested in them by sectious 3 and 4 of Ordinance 7 of 1887 (a copy of which formed one of the enclosures in the Governor's Despatch). That by section 3 it was provided that during such vacancy "All funds invested or otherwise on this island, and elsewhere, and all landed property forming together the endowments of this Bishopric shall be heid in trust by the Finance Board elected by the Diocesan Synod until the arrival of a successor to the Bishop," and by section 4 that the Board "shall grant out of the above Trust such a portion of the Income for the time being as may enable the Metropolitan of the Province of South Africa to visit the Diocese in person; or to send or appoint a special Commissary or Vicar General for the time being with authority over the Clergy of the Diocese for the due maintenance of Ecclesiastical order and discipline." That the duty of rendering an account of the management of the Trust whenever called upon to the Metropolitan during the continuance of the vacancy, and to the new Bishop on his appointment was imposed upon the Board by section 5; and they were further required to hand over to the latter all the surplus income which such account should show to be unexpended.
That during the recent vacancy of the See caused by the death of the late Dr. Welby it would appear that the Diocesan Finance Board had sold or had purported to sell the "Oak Bank" estate, containing the Bishop's palace and 30 odd acres of ground to one of their own members, Mr. Homagee, the Law Officer of the Colony, for the sum of £450, Mr. Homagee, as executor to the late Bishop, letting them have "Redhill" (the late Bishop's residence) for £300 as a residence for the new Bishop. That the sale was privately effected, and that the letter from the Vicar General to the Governor seemed to imply that the provisions of Ordinance 7 of 1887 were not brought to the notice of the Board, though they must have been well known to the purchaser. That the new Bishop had not yet confirmed the sale, but was understood to have referred the matter to the Metropolitan at Cape Town for his advice. That it should be added that the value of landed property in St. Helena had greatly decreased, and that the sum given for the "Oak Bank" estate probably about represented its present value, as the house was out of repair.
That Mr. Bertram Cox was to enclose with his letter a copy of " The Interpretation and General Law Ordinance, 1895 " (No. 3 of 1895) and was to draw our attention to its 23rd section, which provided that, subject to all local Ordinances and Orders in Council in force for the time being, so much of the law of England for the time being as was applicable to local circumstances was and should be in force in St. Helena, subject to certain qualifications therein specified.
That Mr. Bertran Cox was to request us to take the papers into our consideration, and to favour you with our opinion on the following points :-
1. Had the Diocesan Finance Board in selling or purporting to sell the "Oak Bank " estate during the vacancy of the See exceeded its statutory powers under Ordinance 7 of 1887 ?
2. Was Mr. Homagee, as a member of the Board, and consequently one of the Trustees of the Episcopal property during the vacancy, competent in equity to become the purchaser of the "Oak Bank "estate?
3. Could the deed of transfer of the " Oak Bank
estate to Mr. Homagee be set aside
by any, and, if so, by what proceedings at law or in equity ? and,
4. Generally,
4088-26-11/99 Wt 439 D&S