PUBLIC RECORD OFFICE
Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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his council-and that the 9th Clause provided for the cases in which the Administrator and his council differed, and for the Company rescinding the decision of the Administrator.
That the Matabele Order in Council, which was passed to give effect to the Agreement, contained in Articles 7,8, and 16 corresponding provisions in somewhat different language, and that it would appear from the foregoing that the Administrator was to administer the territories on behalf of the Company, to whom he would naturally look for instructions.
That the first Administrator was Dr. Jameson, who had been removed from his office and succeeded by Earl Grey, who was now in Matabeleland. That Mr. Rhodes was also in that territory, and, as it was undesirable, in view of recent events, that he should be able officially to control Lord Grey in the administration of affairs, it had become necessary to consider how far Mr. Rhodes, either as managing director or as holding the Power of Attorney of the Board of Directors, was competent to give instructions on be- half of the Company to the Administrator or to reverse his action. That the question therefore was, whether, if Mr. Rhodes possessed the powers of the Board either as having been conferred upon him as managing director under Art. 87 of the Deed, or as having been delegated to him by power of attorney under article 96, he was competent to give instructions to, or to reverse the action of, the Administrator.
That Mr. Bramston was accordingly to ask us to consider the documents, and to favour you with our opinion upon the questions raised in the 3rd, 4th, and 7th paragraphs of his letter. And further that if we should be of opinion that Mr. Rhodes had now the power to give instructions to the Administrator and to reverse his action what modification of the power of attorney or what limitation of his anthority as managing director would be necessary in order to deprive him of that power.
That Mr. Bramston was also to state that you would be obliged for any general observations upon the subject of his letter with which we might be able to assist.
In obedience to your commands, we have taken the papers into our consideration and have the honour to-
Report-
That in our opinion the public statements made by the Board of Directors in the Annual Reports of the British South Africa Company to the effect that Mr. Rhodes was the managing director, and his having in fact acted as such since the year 1891, coupled with the fact that he has not been re-elected under the 82nd clause of the Deed of Settlement of the 3rd February 1891, and that apparently the Company has acted as though he were the managing director contemplated by Clause 85, would prevent the Company from setting up the fact that no formal appointment of Mr. Rhodes as managing director has been made as against any persons who dealt with him on the faith of his being managing director.
The information before us does not enable us to form a definite opinion as to whether Mr. Rhodes is legally and for all purposes the managing director or whether the Power of Attorney is valid. It is, however, in our judgment, not necessary to decide those points for the purpose of the material question submitted to us, because, in our opinion. Mr. Rhodes, even assuming him to be managing director and attorney of the Company, cannot control Lord Grey in the administration of affairs or give instructions on behalf of the Company which would reverse the action of the Administrator. Under the Agreement of 23rd May 1894, and the subsequent Order in Council of the 18th July 1894, the Administrator and his Council are responsible for the Government of the territory (see Clauses 2, 8, 9, and 10 of the Agreement of May 1894), and it is to be noted that by Clause 9 the Administrator may overrule the opinion of the Council. The Order in Council of the 18th July 1894 confirms this view. (See Clauses 8, 15, and 16.)
It would, in our judgment, be entirely inconsistent with the above provisions and with the whole scheme of the Agreement and Order in Council that the managing director or attorney should be in a position to reverse the action of the Administrator. The power to overrule the Administrator conferred by Clause 9 of the Agreement can be exercised only by the Company itself. The Agreement and the Örder in Council exclude the idea that the Company could send an agent out with power to overrule the Administrator,
&c.
The Rt. Hon. J. Chamberlain,
&c. &c.
We have, &c.
RICHARD E. WEBSTER. ROBERT B. FINLAY,
13329.
SIR,
No. 110.
WESTERN AUSTRALIA.
ATTORNEY-GENERAL to COLONIAL OFFICE.
Royal Courts of Justice, June 22, 1896.
I was honoured with your commands signified in Mr. Bramston's letter of the 11th instant, stating that he was directed by you to transmit to me a despatch from the Governor of Western Australia, dated the 7th of May, with its enclosures, and a copy of the contract referred to in those papers. That my attention was specially directed to clauses 49, 50, and 72 of that contract.
That it would be seen that the Judicial Committee of the Privy Council decided in March 1894, that the West Australian Land Company, Limited, acquired under their contract the right to select from the Crown lands of the Colony town lands as well as country lands, and that disputes had since arisen between the Government of the Colony and the Company as to the rights of the Company under that judgment.
That the Government asserted the right under clause 50 (f) of the contract to make reserves for public services of lands within towns where the Company were entitled to exercise their power of selection: that the Company denied the existence of that right. and that that was apparently the main question to be ultimately decided.
But that the Company claimed to have the question decided in a court of law, while the Government contended that the question should be referred to arbitration under clause 72 of the contract. That the Company transmitted a Petition of Right setting
out their view of the matter, and the immediate questions arose upon that document, which it would be observed the Government did not accept as containing a strictly accurate statement of the facts.
you accordingly requested that you might be favoured with my opinion
That whether :-
1. The dispute was one which under the terms of the contract should be referred to arbitration.
2. If so, had the Government waived their right to go to arbitration in the matter, by reason of their having submitted the former Petition of Right to the decision of the Supreme Court ?
8. If so, was the present Petition of Right proper in form and substance, and ought Her Majesty to be advised to grant Her fat in respect of it?
I have taken the papers into my consideration, and, in obedience to your commands. have the honour to--
Report―
1. THAT, in my opinion, there is considerable question whether the dispute which has arisen is one which falls within the arbitration' clause (No. 72). The words of that clause are no doubt wide, but, when paragraph (f) of clause 50 is examined, it is open to argument that the satisfaction of the surveyor is not a matter which can be reviewed by arbitration.
2. In my judgment, the Government have not, by their previous action, waived their right to contend that the dispute can be dealt with under the arbitration clause.
3. Whatever be the correct view of the two previous questions, I think Her Majesty should be advised to grant Her fiat. The question whether the dispute should be referred to arbitration can be raised by defence to the Petition, or by motion to stay the proceedings. The petitioners are clearly entitled to have the point discussed and determined, and the Colonial Government ought not to be allowed to be judges in their own cause by stopping the progress of the Petition.
I have, &c.
The Right Hon. Joseph Chamberlain, M.P., &c.
&c.
&c.
RICHARD WEBSTER.
TINE
O 90636.-28,
25.--7/96.
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