* LORD STANLEY OF ALDERLEY
My Lords, I rise to call the attention of the House to the necessity of an independent inquiry into the working of the Ceylon Waste Lands Ordinance, and to the injustice caused by the reliance of the Government on the ex parte statements made by its officials on the subject, and by the action of those officials. I am glad to see the noble Lord who was formerly Governor of Ceylon (Lord Stanmore) in his place to-night, and I would appeal to him to give to your Lordships his experience with regard to the Waste Lands Ordinance, and upon any other points that may be raised in 959 the discussion. Since this question was last before the House it has made progress, and I find in Truth that Mr. Chamberlain has made some concessions. That journal says:After all, the appeals to Mr. Chamberlain against the Ceylon Waste Lands Ordinances have not been entirely fruitless. I understand that he has now decided not to sanction the obnoxious clauses in the amending Ordinance, a measure which, among other things, proposed to make valid all proceedings under the original Ordinance which the High Court at Colombo had pronounced to be invalid. It appears that instead of all past irregularities in regard to notices being condoned by the amending Ordinance, this condonation will be confined to those cases in which the claimants have appeared and agreements have been arrived at. No exception can fairly be taken to this arrangement, provided the claimants have entered into the agreements without being subjected to any sort of pressure from the representatives of the Crown. Another alteration in the amending Ordinance is to the effect that the publication in the Gazette notice, instead of being 'conclusive proof' that all the preliminary steps have been taken in a case, is only to be 'primâ facie evidence' of the fact.Mr. Chamberlain is to be congratulated on having made those concessions, which, in view of the attitude he has hitherto adopted, were as unexpected as they are welcome. It is necessary to point out, however, that the grave injustice of the Ordinance of 1897 remains unaltered.The following are the unfair provisions of the Ordinance of 1897, which require either withdrawal or an independent inquiry: (1) The presumption that all land that has not been in continuous cultivation for five years next before the issue of notice is the property of the Crown. This over-rides several decisions of the Supreme Court to the contrary. (2) The presumption that all "chena" land, that is, land that can only be cultivated at intervals of from five to seven years, is the property of the Crown. (3) That the actual occupation of a portion of a land is not to constitute a presumption of private ownership to the remainder of that land. This over-rides other decisions of the Supreme Court to the contrary. (4) Making the owner in possession the plaintiff in the action, and the Crown the defendant, thus reversing the maxim that possession is nine points of the law. (5) Making the revenue officer who sets the claim of the Crown in motion the judge of that claim. His advance in the service depends upon the revenue he can collect, and "land sales" are a very important item in it. No man should be a 960 judge in his own cause. (6) Preventing, the owner in possession from using or selling the land, or exercising any rights of ownership over it, until, after ruinous expense and perhaps years of litigation, it is declared "not to be the property of the Crown." This is adeliberate violation of one of the fundamental principles of justice—i.e., the absolute right of everyone to the free use, enjoyment, and control of his property. (7) Making the wrong-doers, i.e., the executive, the judges of what compensation should be paid for this. (8) Barring an absentee owner from preferring a claim for compensation because of unjust sale of his land by the Crown, or because of an unjust declaration that the land is Crown property, or for the recovery of his property—after the lapse of ten months. Under this Ordinance, therefore, the subject cannot plead prescription against the Crown under thirty years, while the Crown asserts prescription against the subject in one year. (9) Limiting compensation where the land has been unjustly sold by the Crown to what the land realised at the sale. When the Secretary of State for the Colonies took office, he said that they were like estates which required improvement. This maxim would be a very good one, but it pre-supposes that the Secretary of State had some knowledge of the management of an estate, and of the traditions under which they are managed. The Secretary of State appears to have been very imperfectly, not to say inaccurately, informed, and to have refused to listen to any information which did not come from Colonial officials. Various and contradictory statements have been made as to the origin of the Waste Lands Ordinance in Parliament. It has been said that the Governor did not originate it, but that it was due to the Secretary of State. It has been said that it was framed to check a land speculator, and that the Ceylon Government was acting with great liberality. Both these statements are disproved by figures taken from the Gazette. I extract the following return of work done under the Waste Lands Ordinance of Ceylon from the Government Gazette up to April 20, 1899, namely: Number of notices, 278; number of lots, in notices, 853; extent of land noticed, 158,849 acres; extent allowed to claimants on payment of upset prices, 350 acres; extent allowed claimants with- 961 out payment, 330 acres; balance of claims rejected by Revenue officers, 158,156 acres. That is to say, that out of 158,849 acres claimed and noticed by the Government, only 330 acres were allowed to the people. This is what the Governor calls being liberal. Compare this with the extent allowed to the Temples in 1858 to 1865, when the "Temple lands" claims were being investigated. Here the Government allowed 162,935 acres out of 388,136 acres—i.e., 42 per cent. then, as against one-fifth of 1 per cent. now. The Temple authorities were wealthy and influential; the claimants now are mostly poor, helpless, and ignorant villagers. When the Governor informs the Colonial Office that 107 claims were "amicably settled" he has included in the 107 the lots declared to be Crown in the absence of claims; that is, where the owners were too frightened to claim. One of the objects of the recent Waste Lands Ordinances has been to raise money for carrying out the Northern Railway. This will prevent the much required reduction of rates on the existing lines, and will be contrary to the principle laid down by Sir William Gregory, that the revenue of existing railways should not be applied to deficits on extensions. In this way the partially cultivated districts will have their progress retarded for the sake of the northern province, where there is now little or no cultivation or population, or prospect of applications for land. It is as though a landowner anywhere in England but in the Fens, intending to make some main drainage, were to ask all his tenants, those on the uplands as well as those in the valley, who alone would profit by the main drain, to pay an increased rent. It has also been stated, on behalf of the Ceylon Government, and by the Governor himself, as quoted by the Under Secretary, that no one in the Colony objected to the proposed legislation. The Hindu organ of Jaffna, April 26, writes:Mr. Chamberlain's defence of the Waste Lands Ordinance seems to us to be plausible, and based on incorrect information. His assumption that the unofficial members of the Council did not object to the measure, and that it has given satisfaction to the vast majority of the native population of this Colony, is not founded on fact. We have not the Hansard before us, but we perfectly remember that at the time the Ordinance was introduced, it met with much strenuous opposition from the unofficial members. The then Tamil Member, Mr. Coomara Swamy, 962 went the length of comparing the Government to a highway robber in this respect, which remark was resented by His Excellency the Governor, who presided on the occasion.The same paper goes on to ask how the state of native opinion was conveyed to the Secretary of State, and quotes a Resolution passed by the Chilaw Association on the 8th of April last:That the statement of the Secretary of State for the Colonies in the House of Commons, on the 20th March last, to the effect that the principle of Land Ordinances of Ceylon is regarded with satisfaction by the vast majority of the natives, has no foundation, and this Association is of opinion that the statement was made by Mr. Chamberlain in ignorance of facts, and under misinformation, the truth being that the said Ordinances are both in principle and in their practical working oppressive and extortionate as regards the natives, amongst whom they have been the cause of the greatest dissatisfaction with the Government from the earliest times.It has been stated that legislation was necessary to protect the forests of Ceylon, and this was a justification for the Ordinance. As a matter of fact, the Ordinance is being enforced with regard to village "cheena" land, which is by no means forest land. With regard to that portion of my question which refers to the injustice caused by the reliance of the Government on the ex parte statements made by its officials on the subject, I would refer to one gentleman in whom the Colonial Office reposes great confidence. There is no fault to be found with him except that he is a Revenue Officer, and that he writes bad English. I have seen a letter of his which contains an admission. He commences by saying:In the times when 'cheenaing' was allowed—"Cheenaing," by the way, is neither English nor Singalese grammar; what he means is the time when people were allowed to cultivate "cheena" lands, and he says that at that time they were not interfered with. This gentleman uses the word bonâ fide six or eight times in the course of his letter, always with a different meaning. If I were to say I wish we had a bonâ fide Secretary of State for the Colonies, I should only mean one who devoted his whole time to Colonial business, and not half of it to socialist schemes, but it might be taken otherwise. Mr. Correa made a speech to the Chilaw Association lasting an hour and a half, and the other members all spoke against him. With regard to the 963 Governor himself, who I said was not to be relied upon as a perfectly safe witness, the noble Earl the Under-Secretary, on March 24th, expressed his regret that I should have thought fit to imply censure on a Governor who had done so much to earn the gratitude of his Sovereign and his country. I am perfectly ready to accept the noble Lord's censure with all humility if he can answer one question which I shall put to him. Mr. Gladstone removed Colonel West Ridgway from the position of Chief Secretary in Dublin on the ground that he was too harsh. The noble Earl is in this dilemma; he must either say that Mr. Gladstone and his Government removed Colonel West Ridgway without sufficient justification, in which case he would challenge the late Government, or he must admit that he was justly removed. In that case, I want to know why the Secretary of State appointed a harsh Governor to Ceylon? I do not wish to stand between Lord Stanmore and your Lordships at any further length, and I would appeal to Lord Stanmore to say what he intended to have said on a previous occasion when he was prevented from being present through illness. Your Lordships will hear from him a calm and judicial speech. I conclude with a formal motion for Papers in case I wish to reply.
§ * LORD STANMORE
My Lords, so far as I could gather from the speech of the noble Lord who has just spoken, of which, I confess, I heard but very little, he has appealed to me for some confirmation of the statements he has made. I am very reluctant, my Lords, to enter on this matter at all. There are obvious reasons why I should shrink from discussing or appearing to criticise the action of the Government of Ceylon; and before I say a word more I must be allowed to express my entire dissent from what the noble Lord has said, so far as I could hear him on this occasion, and from what I know him to have said on other occasions in this House with regard to the present Governor of Ceylon. The present Governor is, I am sure, animated by the highest motives in bringing forward the Bill which 1s the subject of discussion. Benevolence of feeling towards the native races is not the monopoly of my noble friend; it is, I am sure, shared by Sir West Ridgway. I beg to repudiate any compliment which the noble Lord may pay 964 to me at the expense of my successor, and I beg to dissociate myself with any attempt to cast reflection on the action of Sir West Ridgway. Having said that, my Lords, I am bound to confess that the Ordinance in question does not appear to me to be altogether free from objection. There can be no question as to the motives with which this Ordinance was brought in, or as to the existence of an evil which, I believe, it will cure. But we all know the old fable of the bear who killed a fly on his master's head and broke his skull in doing it, and it appears to me that this Ordinance is a benefit of much the same nature. While I think it will effect the object for which it was brought in, it will do injury to interests which it was never meant to injure. I am not going to trouble the House with wearisome details. The broad principle of this Ordinance is that all waste lands—and in that term is included a great deal of what would not ordinarily be regarded as waste lands—belong to the Crown, and the burden of proof that they do not is thrown upon the owner or quasi-owner. That, in itself, is, of course, a position contrary to that usually assumed with regard to disputes as to the possession of land. It has been said in various quarters that this Ordinance only repeats and confirms the provisions of an Ordinance passed in the year 1840, which contained the same presumption—that the Crown owned all land that could not be proved to be not the Crown's. The mistake into which I think the Colonial Office and my noble friend the Under Secretary of State have fallen is a very natural one indeed, but it is, nevertheless, a mistake. They have compared the language of the two Ordinances. They see the same words in them, apparently giving the same presumption to the Crown, and they say that as the words are the same they must have the same meaning; and that this Ordinance, therefore, only re-enacts what has been enacted before. It has been said in this House that it was simply a question of procedure—that a new tribunal was created, but the law remained the same. The mistake made arises from the fact that my noble friend and others who have looked into the matter have not observed what is indeed not obvious on the face of it—namely, that the law of 1840 must be read in the light of the judicial interpretations which have been given to 965 it by the Supreme Court of Ceylon from time to time during the last sixty years. Now, the Supreme Court of Ceylon, adopting a course which has often been taken when Ordinances or laws are of an unusually harsh character, have drawn the teeth and clipped the claws of the Ordinance of 1840. They have decided that its terms only applied to land which had never been occupied or used for purposes of cultivation within the reasonable limits of time of which ordinary evidence could be obtained. That modification of the old Ordinance is swept away by the new Ordinance. Again, the Supreme Court laid it down that the active occupancy of part of any known or defined plot of land carried presumption of the occupancy or possession of the whole. The new Ordinance says expressly that it shall not do so. In addition to that, the Ordinance of 1840 is very materially strengthened and reinforced by other provisions of the Ordinance of 1897. That this is the case will be visible from the very frank admission of one of the strongest advocates of the Ordinance. I refer to Mr. R. W. Ievers (Government Agent, Northern Province) who, in the Memorandum which he drew up advocating the new Ordinance, said that it was not a re-enactment of an old law, but something new and much stronger. He said:It must also be admitted that the Ordinance No. 12 of 1840, intituled "To prevent encroachments upon Crown Lands,' has not succeeded in fulfilling the provision stated in the preamble, which is as follows: - 'That divers persons without any probable claim or pretence of title have taken possession of lands in this Colony belonging to Her Majesty, and it is necessary that provision be made for the prevention of such encroachments.' Owing to its unfortunate wording the Ordinance has been nullified by the construction placed on it by the Courts. It has been vitiated by the words 'without probable claim or pretence of title,' for the Supreme Court has so whittled down the effect of the presumptions in favour of the Crown that the position of the Crown and claimant are now exactly the reverse of what was contemplated in 1840.This appears on page 47 of the Correspondence Relating to Recent Land Legislation in Ceylon. The words "probable claim or pretence of title" do not appear in the new Ordinance, and their omission at once constitutes a very real and important difference in the two laws and greatly enlarges the number of those to whom its provisions apply. There is also a very distinct statement on another page that the effect of this new Ordinance is not merely to re-enact what was the law 966 before—what the Supreme Court has laid down to be the meaning of the Ordinance of 1840—but to enact that which the Government of Ceylon thinks was intended to be enacted by the Ordinance of 1840, but which the Supreme Court says, and has for years and years said, that Ordinance does not enact. Both I and my distinguished predecessor, Sir William Gregory, disliked the Ordinance of 1840, and the reason why we did not seek to modify it was that we thought the judicial decisions of the Courts had sufficiently totted it down to prevent it doing any harm. I am afraid that any speech on such a subject as this must weary the House, however short it may be. I will, therefore, not go into all the details which might be urged as objections to the Bill, but there are two main points which I should like to mention, and to which I will confine myself. I fear the Bill may injure two classes—the small village proprietors and the owners of very large estates. I will very shortly say why. We are told that there is no such thing as communal property in Ceylon. Although in a technical legal sense that is true, and small owners have no communal possession in waste lands, yet from time immemorial they have exercised certain rights without which small cultivators in villages could not carry on their industry. Everybody is supposed to have an individual estate and interest, but you find that many inhabitants of villages have purely nominal individual holdings; sometimes something like the seventy-second undivided share of the fourth part of a quarter of an acre. What is that other than an elaborate and clumsy way of saying the plot of land is communal property? Sometimes the division takes another form, such as an individual right to cultivate a field for a particular time. I was only this morning looking through an old journal of mine, in which I found that in one village in the Vavonia district, in 1887, there were at least sixteen persons who had in regard to one plot of land the right to cultivate it once in ninety-six years. That, again, is only another way of saying it is communal land. Practically, these village communities have exercised in the forests in the immediate neighbourhood of the villages certain rights which I need not particularly enumerate, such as the right to pasture, right to cut fuel and sticks for fences, the right to cut timber for houses, to make use of water springs, &c.; but if this Ordinance is strictly enforced all these people will be, 967 as indeed to a great extent they have been for some time past, exercising such rights entirely at the pleasure and goodwill of the Crown. I shall be told that it is not the intention of the local Government to do injustice. I fully believe it, but I cannot think it is a wise act on the part of the Colonial Legislature to confer powers capable of grave abuse, simply because those to whom their exercise would at the present moment be entrusted are not likely to abuse them. Generally speaking, and certainly under the present officials, there will be a disposition to do all that is fair and just, but you are giving a power to do much that is unjust, and the temptation to use that power is sometimes very great. You place this great power in the hands, practically, of the Government Agents, for it is impossible for the Governor to look after it himself. There is the temptation to sell land to make up the revenue, there is the temptation to yield to the pressure of those seeking for land, and there is sometimes a less worthy temptation. They may have a quarrel with the village, and not scruple in disregarding village rights. With regard to the large landowners, I think they have a great chance of suffering, but in quite a different way. All large landowners have, of course, a large amount of land which they do not use. They generally hold them on old Kandyan grants, the limits of which are extremely indefinite, and may give rise to many lawsuits. Some of these have been settled with the Crown and some have not, but under this Ordinance it will be quite possible, if their lands come within the category of forests and waste, unoccupied or uncultivated lands, that they may have a large portion absolutely confiscated, and be practically punished for having kept any land in wood—all wood under this Ordinance being personally Crown property: and as properties are often skirted by a fringe of waste land undefined in limit, it is quite possible that such may come within the category of waste or uncultivated land. I know that was not the intention of Sir West Ridgway, and I will venture to read one very short extract from a despatch of his with regard to these cases of large landed proprietors. He says:The bonâ fide large native proprietor has nothing to fear from the Ordinance …. This Ordinance will give a ready means of settling such dispute, and particularly with 968 the object of meeting such a case, the fourth section of the Ordinance provides for an agreement being entered into in respect of any claim, and should a Government Agent be inclined to take an illiberal view of the claim, the large landed proprietor is protected even against himself, because no agreement can be entered into without the consent of the Governor in any case in which the land is over ten acres in extent. Should no agreement be possible the decision is to the right of the landed proprietor to the land in claim is left to the ordinary courts of justice.I have nothing to complain of in that statement, which is an excellent one. Nothing can be better when you are dealing with cases of boundaries than to settle the dispute by a regular lawsuit in the ordinary courts. Sir West Ridgway goes on to mention a settlement in which I had been interested in the Province of Sabaragamuwa. He states that the settlement made by me covered only a portion of the land claimed, and that the Government Agent has been asked to settle the remaining portion of the land by the claimants under the Ordinance No. 1, of 1897. No better proof could be given, he says, that the large landed proprietor does not anticipate that he has anything to fear from the Ordinance. But I have in my hand a letter from Maduanwala Ratemahatmeya, in which he gives an account of what has happened. A proposal was made to him which was virtually this, that he should give up a large portion of his claimed land to the Government, and that on his doing so the Government would release him from any claim upon the rest. Not unnaturally, perhaps, Mr. Maduanwala objected to that proposal, and proposed another scheme, by which the Government would acquire certain rights of cutting timber and making roads, and so forth, while he held the land. This he proposed as an alternative. Well, was it made the foundation of any further proposal to him whereby they might come to an agreement? Was that referred to the ordinary courts of law? No. Two days afterwards Mr. Maduanwala received the following answer from the Government agent:
§ "Ratnapura Kachereri,
§ "27 March, 1899.
§ "MADUANWALA CLAIM.
§ "SIR,—Withreference to your letter No. 60, of the 7th inst., and subsequent conversation, I have the honour to inform you that on your withdrawing all claim to the land lying to the east of the Timbolketiya and Embilepiteya road, a certificate of quiet possession will be issued to you for the remainder of your claim. In the event of your refusal, proceedings will be taken under the Waste Lands Ordinance 969 No. 1 of 1897. I request your reply within 14 clays of receipt of this letter. You are to understand that all previous proposals for a settlement on other terms are at an end.
§ "I am, Sir,
§ "Your obedient servant,
§ "G. M. FOWLER, Govt. Agent.
§ I contend, therefore, that what was not intended by Sir W. Ridgway may be done and is done under the Waste Lands Ordinance. He says the Ordinance does not apply and that disputes of this nature will be settled by the ordinary courts of law. The Government Agent says if the native landholder will not accept the terms offered he shall be dealt with under the new Ordinance, which will probably deprive him of great tracts of forest of which for certainly two hundred years his family have been the reputed possessors. You may gain a few hundred acres of forest; you will gain with it the undying enmity of a still powerful family. One other matter I ventured to point out to the Colonial Office, that there is no obstacle under the Ordinance to the issuing of notices for very large plots of land where it is impossible for the people on them to know all about them, and gave the sketch of such a notice. The Governor thought this impossible, and said that if any officer were foolish enough to propose the insertion of such a notice in the Gazette, he would not have the opportunity of repeating his action. Since then, however, a notice, substantially the same as the imaginary notice I prepared, has been issued, taking in 150 square miles of land, and under the Forest Ordinance, which works along with this Ordinance, a notice has been issued in respect of a tract of land 150 miles in length and 30 miles in width. My point is this. I am quite satisfied of the intention of the Colonial Office, and I am quite satisfied of the intention of the Governor, but good intentions do not always insure good legislation. All history tells us that, and much of the most mischievous legislation, and some of the most absurd laws of former days, were framed with the most benevolent intentions and with a sincere desire to benefit the people. I, therefore, think it is no proof that the law is a good one to say that it is a well-intended one. I think this law may be oppressively used, and I therefore think it right to call attention to these facts. I ought to have added, with regard to the first of the large tracts of land to which I have referred, that when, nine years ago, I passed through it, there were several villages there. I am told 970 that those villages have now disappeared" That is very likely. Owing to the great want of irrigation the people have gone elsewhere. But is it to be assumed that because they have done so they have lost their rights to the land? They have removed because they could not live there, but their rights, whatever they are worth, surely still exist. If the Government of Ceylon and the Colonial Office say the present Ordinance is now the law and must continue to be so notwithstanding dangers which may be seen in its provisions, then I would say, let it be so. This law, taken in itself, will effect undoubtedly one great good. It will suppress what is an unmitigated evil—the sale of little petty plots of land by individual owners in villages to the detriment of the whole village and the general public. The Ordinance is a very strong and somewhat harsh method of ascertaining the rights of the Crown. If it is continued as such I would ask Her Majesty's Government and the Government of Ceylon if they will do one thing. Will they, by legislative provisions, secure the rights of the villagers in the same way as the rights of the Crown have been now secured; that is to say, instead of leaving it to the mere caprice, it may be—goodwill and pleasure at the best, it must be—of the Government Agents to say whether they will or will not give certain privileges to villagers in the forest, will they enact, as the Crown has now the power severely to enforce its own rights, that within a certain radius from a village the people of that village shall enjoy those privileges which are mentioned in the Forest Ordinance? If they will do that, then, although the Ordinance might not be without objection, anything that is dangerous in it would, so far as the villagers are concerned, be neutralised. And if they would also make provision whereby large property disputes with regard to boundaries should be treated as it was intended by Sir West Ridgway they should be treated, by being dealt with by the superior Courts of Justice, not by proceedings under this Ordinance; then I think there would be little reason to complain, and I for one would be perfectly satisfied with the course taken.
THE UNDER SECRETARY OF STATE FOR THE COLONIES (The Earl of SELEORNE)
The noble Lord who has just addressed the House has as great right to speak on this subject as 971 any living man, and during his career as Governor of Ceylon he was distinguished, if he will allow me to say so, for a sympathy with the natives that was wisely directed. Therefore I am glad, in the first place, to think that the division of opinion between himself, the Colonial Office, and the present Governor of Ceylon, is confined really to a single point. The noble Lord repudiated, as your Lordships would have expected, the attacks that have been made in this House and in the other House on the motives and actions of the present Governor. I join most heartily with my noble friend in that repudiation. The noble Lord went on to admit that there was no question as to the motives under which the Waste Lands Ordinance was passed, and he admitted, further, that there were great evils which had to be cured, and which the Ordinance in question would cure. That, at any rate, is a large ground of concurrence between Lord Stanmore, the present Government, and the Colonial Office. My noble friend went on to say that this Waste Land Ordinance would directly injure interests which it was never intended to injure, and which, perhaps, were not taken quite sufficiently into consideration when its provisions were framed. He criticised the argument that has been used by the Governor of Ceylon, and I think, in both Houses of Parliament, that the principle involved in the Act under discussion is the same as that which was involved in the Act of 1840. My noble friend explained to the House the difference which really exists between the two Acts, and which constitutes this statement a fallacy. The contention of the Governor of Ceylon has been that in both Acts there has been the same presumption of Crown ownership, and that the same words expressed that presumption. But, says my noble friend, the law of 1840 has been so altered by judge-made law, that it no longer carries out what was supposed to have been its presumption, and he named two points specially. The first was that, according to the judgment of the Courts in the case of the Ordinance of 1840, the presumption in favour of the Crown was only applicable to land which had not been cultivated within a reasonable time. I do not think my noble friend named the exact number of years that the Courts had laid down as the minimum 972 requisite to establish a private claim, and to upset the claim of the Crown. I will leave it at that—that no hard-and-fast rule has been laid down by the Court of Ceylon in respect of the Act of 1840, but that they have admitted, although giving every kind of latitude and advantage to the private claimant, that a period must intervene beyond which ancient rights are not entitled to count against the Crown. The second point which the noble Lord brought forward was that of evidence of the occupancy of part of a district—part, we will say, of a so-called forest—has been held, according to the interpretation by the Courts of the Ordinance of 1840, to be evidence of the occupation of the whole, and that no corresponding provision has been introduced into the current Ordinance. I should like to point out, as regards the first point, that the whole difference between my noble friend and the Colonial Office is a question of degree. If once you admit that after an intervening period the private claim is barred, and the Crown can resort to what we will call its pristine rights, the question in dispute is only one of degree as to how many years prescription ought to be allowed. I quite agree that in dealing with matters affecting closely the interests of the natives, the greatest care should be taken to strain the law on their side rather than against them; but in the necessary administration, I am prepared to rely on the exercise of their discretion by the Government officials of Ceylon under the direction of the Governor. As to the second point—the presumption that occupation of a small part of the land should be evidence of the occupation of the whole—I have no doubt an equally strong case could be made out for the contrary proposition—namely, that it should not be evidence against the Crown (by the Crown I mean, of course, the whole of the public of Ceylon) that the whole of a forest belongs to a certain individual, or to a certain village, because that individual or that village can prove that they have in remote years cultivated a comparatively small plot within that forest or district.
§ LORD STANMORE
I did not say anything of the sort. What I referred to was a defined and known plot of land. In that case the Supreme Court has said that the possession of a part shall be pos- 973 session of the whole. The new Ordinance says it shall not.
§ THE EARL OF SELBORNE
It all depends on the size of the defined area. Admitting that it is a known area, if it cannot be proved that a given individual or his forefathers have, in any time in which there is record, exercised any rights over three-quarters of such known area, the State should have the right to say whether the ownership vested in the State or in the individual, and the Governor seems to me to be justified in not allowing the presumption to be in favour of the individual. My noble friend made two special criticisms. He pointed out that the Act might operate with special harshness against small village proprietors who enjoyed practically, though not technically, communal rights; but he admitted that, after all, the whole thing was a question of administration. It is really, therefore, a question whether the Government and the Colonial Office between them can exercise proper control over the officials of the Government of Ceylon. All I can say on behalf of the Governor and the Colonial Office is that we will do our best; that we recognise absolutely the necessity for acting with the greatest sympathy towards the native proprietors and village communities, and any criticism which will enable us to carry out more carefully that superintendence of detail which is wholly necessary we shall welcome, from whatever quarter it comes. The second case my noble friend referred to was the case of the very large landowners, whom he admitted might include within their properties areas over which their claims were rather vague, and as to which they might not unnaturally rather resent too close definition. But, my Lords, the Crown—i.e., the public of Ceylon—have claims as well as the great landowners. The latter, no doubt, are entitled not only to the most rigorous justice, but to sympathetic treatment. I cannot think, however, that their case requires as much anxiety on the part of the Colonial Office as that of the small proprietors in the villages; for, after all, the big landowner is presumably able to take care of himself and his interests. Take the case which my noble friend has brought before your Lordships. I shall not be so rash as to attempt to pronounce the 974 name of the gentleman to which he referred, and which the noble Lord so glibly rolled out, but so far as I understand the case he is a native gentleman who has very large property, in regard to which his rights have been for a long period vague and undefined. My noble friend was himself instrumental in settling a portion of the claims, but a certain portion remains unadjusted. The Governor of Ceylon proposes now to ascertain the respective rights of this native landowner and of the Crown in respect to the remainder of the property. The Government Agent offered him a compromise, which the native gentleman refused, and offered another compromise. The Government Agent refused the compromise offered by the native gentleman, and indicated that if the offer of the Government was rejected the Waste Lands Ordinance would be put in force. Where is the objection to that course being adopted? The Waste Lands Ordinance cannot be put into force without going to the Courts of Justice, and this large native landowner would be able to protect himself there and appeal if necessary. In the particular case to which the noble Lord has referred, I cannot see where the hardship is. It is not a case of a poor man who could not defend himself, but of a man who, from the size of his property, is well able to look after his own interests. As to the large block of land scheduled under the Order, to which the noble Lord alluded, the present Governor of Ceylon personally informed me that he had ridden all through this block of country, and had been quite unable to find any traces of human habitation, and had completely assured himself that in scheduling this block of land the Government of Ceylon were not interfering with the existing rights of any native community or individual, and, as far as they have been able, to ascertain, there has been no reason to depart from that view. Before I leave the question of the administration of this Act, I should like, with your Lorships' permission, to read an extract from the last page of the Blue Book which has just been published. The Chief Justice of Ceylon has been frequently quoted, and has been used as a weapon with which to belabour the Government and the Colonial Office, because he used the words, "this extraordinary Act." I will read to your Lordships what the Chief Justice really 975 said. He wrote to the Secretary of State for the Colonies as follows:I understand that the language used by me in a recent judgment questioning certain proceedings under the Waste Lands Ordinance has been interpreted to mean that I disapprove of the principle of the Ordinance. In describing the Ordinance as one of an 'extraordinary' nature I referred to the fact that it confers exceptional powers on the local government In my opinion, it is not the province of a judge to express either approval or disapproval of the Acts of the Legislature, but I may perhaps be permitted to state that I consider that the local circumstances render exceptional legislation desirable, not only in the interests of the general community to prevent the wanton destruction of valuable property, but also in the interests of the villagers themselves, for nothing is a more prolific source of crime in Ceylon than disputes respecting the ownership of land. At the same time, I have always entertained the opinion that where an Ordinance conferring exceptional powers prescribes the conditions under which the powers may be exercised, these conditions must be strictly observed. I may add that, so far as I am aware, the working of the Ordinance has not been attended by any real injustice or hardship, and that if any such were to occur the Supreme Court may be trusted to find a remedy.If there is one thing which my noble friend dilated upon more than another, it was the wisdom of the Supreme Court of Ceylon, which had prevented any hardship being committed under the Act of 1840. I would ask him in the same way to rely upon the Supreme Court of Ceylon to prevent, in its interpretation of the present Ordinance, any abuse taking place. If it has protected the native public from a harsh interpretation under one Ordinance, it may, I think, be trusted to do so under another. Finally, my noble friend asked me this question: Will Her Majesty's Government, by legislation, secure the rights of private villagers in the same way as they have secured the rights of the Crown by this ordinance? I am not, of course, prepared on the spur of the moment to answer a question which involves a complete knowledge of the technicalities of the Land Laws of Ceylon, but I can say that any suggestion emanating from my noble friend (Lord Stanmore) or other authority so entitled to respect will receive the most careful and anxious consideration of the Secretary of State. As regards the remarks of the noble Lord who introduced this motion (Lord Stanley of Alderley), I entirely deny the statement that injustice has been caused by the 976 action of the officials of the Government, and Her Majesty's Government entirely decline to grant an inquiry into the working of the Ordinance.
§ THE EARL OF WEMYSS
My Lords, I should like to say that the opinion of the Chief Justice of Ceylon, which has been quoted by my noble friend, took me back twenty-nine years. I could have fancied it was Mr. Gladstone moving the Irish Land Bill of 1870. Exactly the same words about discontent, bad feeling, and exceptional legislation were used then. As land proprietors who have not cultivated their land are liable in Ceylon to have it taken from them by the Crown, I hope those landowners in England, Ireland, and Scotland who have not cultivated their land will be careful that these laws are not introduced into this country. Where they will stop, only wiser men than I can say.