CO885-(10-11) — Page 865

6569/1872.

PUBLIC RECORD OFFICE

Reference :-

mwinmmim C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

No. 683.

(CANADA.)

LAW OFFICERS to WAR OFFICE.

FURTHER CASE.

The object of the present case is to obtain the opinion of the Law Officers whether any and what authority is needed by the Secretary of State to enable him legally to transfer to the several Colonial Governments the land and works (with or without stores or armaments) vested in the Crown, or the Secretary of State as trustee for the Crown, for Colonial defence.

The case submitted to the Law Officers in November 1858 (which is sent herewith) had reference to land, &c. at the Cape of Good Hope, but in the present case it is proposed to deal with the question generally; and not with special reference to any particular Colony.

The landed estates in the Colony were acquired and are now held in various ways by the Crown-

1st. By conquest in some instances (as in Jamaica) before the reign of William and Mary, and in others (as in Canada) after the property of the Crown had been divided into the two classes now recognised, viz., (1) property vested in the Crown or the Secretary of State, as a trustee for the public; and (2) private property held by or for the Crown as a part of its hereditary revenue.

2nd. By free grant or appropriation made at the original settlement of the Colony to the late Board of Ordnance and subsequently vested in the Secretary of State by Colonial statute.

3rd. By purchase out of Imperial funds, and vested first in the Board of Ordnance and afterwards in the Secretary of State under the Imperial Defence Acts (amended by the Ordnance Transfer Act, 1855) and local statutes passed after 1855).

The works, armament, and stores may, as a general rule, be said to have been erected and provided at the cost of the Imperial Treasury.

Transfers of defensive works, with armament and stores have been made in certain Colonies, with the sanction of the Treasury, by the War Office to the Colonial Governments.

These transfers have been made by office letters and by change of possession from Imperial to local officers; but the necessity for some definite Parliamentary sanction has been suggested to the Secretary of State in the following official memorandum :-

"MEMORANDUM of the Transfer of Defensive Lands, &c., to Colonies.

(CANADA.)

“Certain of the lands in Canada have been acquired, and all the buildings, &c. have been erected at the cost of the Imperial Treasury. These premises are invested in the Secretary of State under the authority of two statutes-

1st. The Imperial Defence Act, 1842;

2nd. The Local Canadian Act, 1859;

and the question is whether and what authority is needed from the Imperial and local Parliaments to carry out the transfer of these premises from the Imperial to the Local Government, upon the terms sanctioned by the Treasury?

"The policy indicated in this transfer was initiated by Earl Grey, and announced to the Earl of Elgin (as Governor-General of Canada) in a Despatch of 14th March 1851, which has been laid before Parliament of Great Britain, but no formal resolution has ever been (that I know of) taken upon it, so as to pledge the Crown or Parliament to a dis- tinct acceptance of any arrangements made on that basis by the Imperial Government. The Imperial and Local Governments must be considered as having distinterests in such arrangements, and the present Chancellor of the Exchequer in his evidence before the Committee on Colonial Military Expenditure in 1861, likened the position of a Colony to that of "Hanover" before the present reign. If this analogy be correct then the Imperial Parliament ought to be called upon to give a legislative sanction to the transfer of (say) 150,000%. worth of public treasure to Canada before it is made, and the local Parliament ought to obtain a statutory title from the Secretary of State agreeing in the same statute to provide all proper accommodation for Imperial troops when, hereafter, those troops may be required.

O 16978.-881. 23.-3/88: