R
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
within the term "requisition." A further question arises whether payment for the use of buildings so occupied is rendered necessary by the terms of any of the Proclamations (Paper G issued by the Commanders-in-Chief in South Africa. Lord Roberts's Proclamation of February 1900 (p. 1 of Paper G) states that persons who do not join in the contest shall not suffer in their persons or property, and that requisitions for food, forage, fuel, or shelter will be paid for on the spot. This promise to pay for requisitions, though the date of payment was postponed until the end of hostilities, has been repeated (see the Proclamation of May 1900, p. 7 of the collection, Paper G, above referred to, and the Proclamation, Paper I), and in these circumstances the question arises whether His Majesty's Government have contracted themselves out of their legal right to requisition without payment.
When the German armies entered Frauce the inhabitants were at once informed that they would have to meet requisitions for the sustenance of the German forces (Paper H). The German Government subsequently referred persons who claimed payment for requisitions to the French Government, on whom the expenses of the war were to fall, and who were at liberty to compensate persons living on French territory for the losses they had sustained. If, therefore, the use of premises comes within the term "requisition," the fact to which the War Office letter (Paper E) draws attention-viz., that the Germans did not pay rent-is hardly conclusive; on the contrary, the German Government had expressly declared that they intended to avail themselves of their legal right to make the invaded territory meet requisitions without payment. There is, moreover, a further reason which appears to render the German precedent inexplicable: the fact, namely, that His Majesty's Government have annexed the Transvaal. The appropriate German precedent would, therefore, have to be looked for in Alsace and Lorraine and it is understood that in those countries compensation was given for losses, though no doubt only as an act of grace. The award of compensation being an act of grace, the German Government were free not to include rent among the subjects on account of which compensation would be given.
The War Office further remark that the French Government did not give compensation for the occupation of private buildings; but it was within the competence of the French Government also to say for which classes of losses they would, as an act of grace, give compensation; whereas it seems possible that, considering the Proclamations, His Majesty's Government are not in a like condition of freedom.
It is urged, however, by the War Office, in a further letter (Paper M) dealing with this point, that neither of the Proclamations referred to above can be said to deprive His Majesty's Government of the legal right to occupy private buildings without payment.
Since the preparation of this reference was commenced, terms of surrender have been arranged with the Boer forces in the field. The terms will be found at p. 12 of the accompanying Parliamentary Paper (Paper K). Article 10 of the terms provides for the liquidation of sums secured by receipts given by officers in the field of the late Republics, in those cases in which it is found that the receipts were issued in return for valuable consideration. It will in practice be necessary to treat receipts issued by British officers not less favourably than those issued by the officers of the enemy's forces. But although it is thought right to call your attention to this stipulation, it is improbable that it will affect the main question on which your advice. is sought.
I am to request you to take these observations and the above-mentioned Papers into your consideration, and to favour Lord Lansdowne with your opinion as to whether any payments strictly in the nature of rent, as opposed to compensation for actual damage done to the tenement, ought to be made for the occupation of buildings used for military purposes during the course of the present war, either on account of the various Proclamations which were issued in South Africa or upon any other ground; and, generally, with any observations on the case which you may see fit to offer.
I have, &c.,
T. H. SANDERSON,
3
List of Papers.
(A.) Baron Schimmelpenninck
(B.) War Office
(C.) To War Office
(D.) Sir J. Ardagh (Memorandum)
(E.) War Office
(F.) War Office (with Law Officers' Reports of
August 26, 1870, and February 28, 1871)
(G.) Collection of Proclamations. (H.) German Proclamations on entering
France.
(1) Army Order of December 17, 1900 (postponing payment till end of hostilities).
(K.) Correspondence respecting the terms of surrender of Boer forces still in the field.
(L.) Colonial Office (M.) War Office
Report.
...
September 21, 1901. March 5, 1902. March 17, 1902. January 7, 1883. April 11, 1902.
April 24, 1902.
May 20, 1902. August 16, 1902.
We are of opinion that there is no obligation on His Majesty's Government to make payments in the nature of rent for the occupation of buildings for military purposes during the war.
Where an occupant has been expropriated and has thereby suffered actual damage it is a question of policy whether he should be compensated, but in such cases any compensation should be estimated on the basis of actual loss, and not. on that of rent, and should be paid ex gratiâ only.
Royal Courts of Justice,
October 10, 1902.
R. B. FINLAY, EDWARD CARSON.