CO129-458 - Public Offices & Others - 1919 — Page 365

I

"

6

any documents of record referring to saltpetre, as the substance was then obtained in increased quantities from India. In any case, the right to take saltpetre was described as a purveyance," and purveyances were abolished in 1660 by the statute 12 Charles II., chapter IV. Since the reign of James I., when the case of saltpetre was resolved by all the judges of England, the methods of scientific warfare have vastly increased, For the safety and security of the kingdom, permanent forts and works have to be constructed, great naval, military and aerial organisations have to be maintained, requiring many depôts, and a very large staff of officials to provide for manufacture and supply of every kind, pay and control. It was found necessary to resort to Parliament to obtain powers to enable the executive Goverument to carry out effectively the proper protective measures, and from an early date the permanent acquisition of land, or the temporary occupation and use of it for such a period as the exigence of the public service shall require, has been regulated and provided for by statute. At first separate statutes were passed for the acquisition of particular properties for forts, batteries, naval harbours, and the like.

Then, in times of national danger, during the Napoleonic Wars, statutes were passed regulating the taking possession of and user of land, but the operation of such statutes was limited in duration to the period of the French War.

The next step was to consolidate the provisions into a permanent Defence of the Realm Act, allowing land to be permanently acquired or temporarily occupied, subject to certain restrictions, where the owners did not agree to the Crown's proposal. Then when a state of war again arose, statutes were passed enabling regulations to be made for relieving against these restrictions. This is a general outline of the course of legislation, but it will be necessary to refer to these statutes in detail.

It was urged on behalf of the Crown during the argument, that where in the past lands had been taken over, occupied or used, in connection with the defence of the realm, and military occupations connected therewith, there was not any legal obligation on the part of the Crown to paganything, but that commissions had been issued from time to time to deterinine what payments should be made by the Crown ex gratia, and that on a search being made, particulars of these commissions could doubtless be obtained, and the case stood over from time to time to enable the records to be searched and information obtained with regard to (a) Acts of interference by the Crown with private property in land for the purpose of the Defence of the Realm. (b) Claims by subjects for compensation in respect of such interference (1) as a matter of right, (2) as a matter of grace and as to the basis of such claims. (c) The manner in which such claims were dealt with and the results thereof. The result of the searches which have been made is that it does not appear that the Crown has ever taken the subject's land for the defence of the country without paying for it, and even in Stuart times I cannot trace any claim by the Crown to such a prerogative. A considerable search in the records has been made, and the results appear in the book of "Extracts from our Public Records." The time covered by the search may be divided into three periods. First before 1708, secondly between 1709 and 1798, thirdly, subsequent to 1798.

In the first period instances are given of land being required for fortifications, for mounting guns, and otherwise for the defence of the country, but the land taken or occupied was paid for. This 1668, it was determined to construct two new batteries at Chatham for the better security and safety of His Majesty's Navy in that Harbour," and instructions These contain a on the subject were given by the Board of Ordnance. direction (page 21 of "Extracts "), "You are to contract for and buy such

"

7

and so much parcel of ground at each of the aforesaid places of the owners and proprietors thereof as will serve to build the said batteries or redoubts upon and at the cheapest rates you and they can agree for." Again, in 1681 there was a proposal to erect a new fortification at Hull, and there is a minute of the Board of Ordnance, dated 1st September 1881 (page 9, "Extracts"), with regard to inquiries as to the measures taken for the new works at Plymouth, and "after what method the owners of those lands were satisfied and paid for the same"; and also "To see what statutes there are concerning taking up of people's lands for building of fortifications thereupon." The Royal authority for executing the work at Hull

37 of the "Extracts." page

It contains a provision that "If any ground which is not our own shall be found necessary to be taken in for this service, toe do hereby authorise and empower you to cause the same to be contracted for and bought of the owners at the cheapest rates the same

"

*

at

+

44

C

may be had."

appears

The second period begins in 1708. It appeared then to be fully recoguised that the land of a subject could not be taken against his will, except under the provisions of an Act of Parliament. Accordingly in 1708 was passed the first of a series of Acts to enable particular lands to be taken compulsorily. By the Statute 7 Anne, Chapter 26, which recites that it was necessary to enlarge and strengthen the fortifications of Portsmouth, Chatham, and Harwich, and to purchase lands for the purpose, and that some proprietors desiring to make an unreasonable gain to themselves might insist on extravagant rates, provision is made for the appointment of Commissioners to survey lands to be purchased, and in default of agreement with the owners the true value is to be ascertained by a jury. Between 1708 and 1798 we were informed by counsel for the Crown that every case of taking or occupying land was covered by the wide provisions of the Acts passed from time to time, so that there was not any room for the exercise of any alleged prerogative during the period. The third period dated from 1798. On the 5th April 1798 was passed the Statute 38 George III., Chapter 27. This Act recites that it is expedient that provision should be made to enable His Majesty to procure ground which may be wanted for erecting batteries, leacons, and other works which may be deemed necessary for the public service, and also to provide for the indemnity (in certain cases) of persons who may suffer in their property by measures which may be taken for the defence and security of the country and annoyance of the enemy. This Act then provides by section 10 that His Majesty may authorise persons to survey and mark out any ground wanted for the public service, and to treat and agree for the possession or use thereof during such time as the exigence of the service shall require, and in default of agreement the compensation is to be ascertained by a jury, and with a restriction upon taking without the consent of the owners, unless the enemy shall have actually invaded the kingdom at the time when the piece of ground shall be so taken. By section 22 the Act was to have continuance during the war with France.

By Statute 43, George III., Chapter 55 (passed 11th June 1803), intituled "An Act to enable His Majesty more effectually to provide for the defence and security of the realm during the present war," power was given to His Majesty to survey and mark out ground wanted for the public service, and to treat and agree for the possession and use of it during sucia time as the exigencies of the service should require, and in default of agreement the compensation to be paid for the possession or use was to be ascertained by a jury. Section 22 shows that the Act was confined to present hostilities with France." Doubts arose as to whether this Act extended to authorise the absolute purchase and taking of lands for perma- nent purposes, and accordingly next year was passed the Act 14 George III.,

the

❤ 7854

C

332