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R

PUBLIC RECORD OFFICE

Reference :-

mmimmim C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

2.

the owners of the Camden Park Estate could not make any title to lots "K" and "L." These lots are not "smaller spaces left unnumbered, and which are encompassed by lands sold to the contiguous planters" on the construction which would be adopted of these notes, apart from other facts in this case to which reference will be afterwards made; these words obviously applying to spaces completely surrounded by lands of planters. Lots "K" and "L

are not themselves spaces, but portions of the large unenclosed space belonging to the Crown.

(b.) No title can be made by sixty years' adverse possession. The Nullum Tempus Act does not appear to apply to St. Vincent unless there be some local legislation, as to which we have no instructions, which has applied it there, and it appears to us quite impossible to hold that there has been possession adverse to the Crown when these lands have been occupied under the Crown on the assumption that they were to be re- garded as appropriated to the use of the contiguous planters under the terms of the note to the plan of 1776.

(c.) We think that the owner of the Camden Park Estate might make a good title to occupy the lands under the Crown as appropriated to his use as contiguous planter in virtue of the long occupation which has taken place. The conveyance in the En- cumbered Estates Court merely states that these lots are held under occupancy from the Crown, and subject to all rights of His Majesty therein and thereto. We think that this merely means that these lands have been occupied, as the fact was, as if they fell within the terms of the note on the plan of 1776, as to appropriation to contiguous planters, and that the rights of the Crown, whatever they might in fact be, were reserved.

The long occupancy of these lots as appropriated lands seems to us to be a fact from which a grant from the Crown might be presumed to hold these lots as appropri- ated on the terms of the note to the plan of 1776. Or, again, the long continued pos- session on these terms, apparently from 1776 onwards, might be regarded as a con- temporaneous and long continuing exposition of the meaning of the award of the Commissioners of 1776 which might lead the Court to adopt a construction of that award differing from that which we have above stated we think would be adopted if the award stood alone. And it must be remembered that these lots although not en- compassed are very nearly encompassed by lands sold to the planters, so that no great violence would be done to the terms of the Award embodied in the Note to the plan of 1776 by holding that they fell within it having regard to the long continued enjoyment on that basis.

2. Even if the legal title to these lots were still in the Crown, we do not think that it would be equitable, using that word in its broadest sense, to deprive the owners of the Camden Park Estate of the possession of these lands as "appropriated" by the Commissioners in 1776, in face of the very great length of time during which they and their predecessors have enjoyed possession of these lands upon this footing.

The facts as to the nature of the enjoyment of these lots do not fully appear, but we have, of course, assumed for the purposes of this Report that, as stated in the des- patch under reply, the owners of the Camden Park Estate have enjoyed the user of such lots unquestioned by the Crown from the year 1829, and possibly from an earlier date, down to the year 1888.

We observe that certain cottagers, or others, appear to be in occupation of certain parts of these lots "K" and "L." We have no information as to the nature or length of their possession, and it is, of course, possible that they have acquired a title which would be good as against the owners of the Camden Park Estate so as to put it out of the power of the latter to interfere with their possession. The only point on which we advise is as to the right of the Crown to interfere with the user of these lands as if appropriated by the Commissioners of 1776.

The Right Honourable J. Chamberlain, M.P.;

&c.,

&c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

43433. S.

SIR,

No. 118.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

[Proposals for hastening the termination of the War.]

Royal Courts of Justice,

December 9, 1901.

We were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 19th ultimo, stating that he was directed by you to inform us that you had had before you various proposals for hastening the termination of the war in South Africa, by means of punitive measures directed against the enemy still in the field, whether ex-burgbers of the Republics, or rebels, and that you were anxious to define what measures of that kind were, and what were not, justifiable.

That Mr. Bertram Cox was to enclose, for our consideration, a print of a Memorandum African prepared in the Colonial Office on certain points connected with the conduct of No. 653, hostilities. That those points were six in number, viz. :-

(1.) Proposals for the confiscation of the land of Boers in the field.

(2.) Hostile acts of individuals or small bands.

(3.) The use of British uniforms by Boers.

(4.) Breaking parole.

(5.) Collective responsibility for outrages.

(6.) Punishment of rebels in the Cape and Natal.

That certain papers, referred to in the Memorandum, were transmitted for our information.

That a copy of a letter addressed by Sir W. Harcourt to the "Times

enclosed.

" was also

That Mr. Cox was to observe that the part of the Memorandum on which the most difficult questions arose was that dealing with collective responsibility. That an extract on that point from a letter from the Director of Military Intelligence, to whom a proof of the Memorandum at an earlier stage was submitted, was enclosed, in which be argued that the principle was one fully established by precedent, and that Mr. Cox was to request that we would give special attention to that part of the Memorandum.

That Mr. Cox was to inquire whether we concurred in tire Memorandum, and, if not, in what respects we considered that it should be amended.

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to

Report-

That the Memorandum submitted to us is, in our opinion, a very able one, and contains materials which are likely to be of the greatest use.

We do not think that it would be advisable that we should go through it in detail stating how far, in our opinion, each separate proposition may, or may not, require alteration or qualification.

It appears to us not to be expedient that the Law Officers should commit themselves to general propositions of this kind. It is often difficult to appreciate the whole effect of any proposition apart from special circumstances to which it may have to be applied, and on which it may be the duty of the Law Officers from time to time to advise.

We may,

however, make a few observations of a general nature upon certain points arising under the Memorandum.

So far as Head I., " Proposals for the confiscation of the lands of Boers in the field," is concerned, the ground is, to some extent, covered by the Reports of the Law Officers of 25th January 1900 and 31st July 1901, to which we beg to refer.

The observations under this head, in the Memorandum, as to the propriety of legislation imposing confiscation as a punishment for treason, depend to a very large extent upon considerations of policy. We are unable to see that there are any objections to such a course which can properly be styled "legal." Many of the

• Nos. 12 and 95A.

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+ 19814.—1. 25.-12/01. PL. 8.

E. & S.