PUBLIC RECORD OFFICE
Reference :-
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C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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The original conception precluded the supersession of the Protected by the Protecting Power as regards the government of the subjects of the Protected Power; jurisdiction within the Protectorate over the subjects of the Protecting Power and over other persons was strictly limited to such cases as were directly provided for in the Treaty creating the Protectorate.
Thus" The Africa Order in Council, 1889," and the Orders issued in connection with it, and "The East Africa Order, 1897," except in so far as the latter Order creates Native Courts, do not give jurisdiction to the British authorities over the subjects of the Chiefs in the Protectorates affected; neither do they give power to make legislative Regulations binding on the subjects of those Chiefs.
In British Central Africa, where few, if any Chiefs now exercise judicial, legislative, or administrative functions, the difficulty has hitherto been met by allowing the British officers of the Protectorate to exercise all these functions on the assumption that they act on behalf of the Chief.
In practice the same course must often have been followed in East Africa; but from the strictly legal point of view the arrangement is not satisfactory. In many of the more advanced Protectorates administered by the Colonial Office the natives come under the same jurisdiction (but not necessarily under the same legislation) as British subjects and foreigners. The Colonial Department appears to act largely on the principle to which attention was called in the Report of the 14th February. 1895,* from your predecessors in office (Document Z) in regard to jurisdiction in the Protectorates adjacent to the Gold Coast Colony, and to assume that, even in the absence of a Treaty between the Protecting Power and the local Sovereign granting jurisdiction over the subjects of that Sovereign, the existence of a Pro- tectorate in an uncivilized country implies the right to assume whatever jurisdiction, over all persons, may be needed for the effectual exercise of the Protectorate.
This tendency is also seen in the above-mentioned Order in Council of the 7th ultimo (Document X), which provides means for making Regulations issued under "The East Africa Örder in Council, 1897," applicable to natives.
It has already been observed, in connection with the enactment in East Africa of The Indian Land Acquisition Act, 1894," and "The East Africa (Acquisition of Land) Order in Council, 1898," that power has probably been taken by the Crown to give a freehold title in the case of land actually claimed by a native, and com- pulsorily obtained from him, on compensation, by means of the provisions of the Act in question; it would seem, therefore, that power could all the more properly be assumed for giving a similar title to land lying waste and not claimed by any one.
Attention has already been called to the fact that the natives of the Pro- tectorate have practically no such idea of "ownership" in land as is entertained amongst more settled and civilized communities. In support of this position, it may be noticed that no difficulty whatever has been experienced in appropriating the land on which the Uganda Railway has been built in the East Africa Pro- tectorate; the line was already many miles beyond the Sultan's dominions when the Indian Land Acquisition Act became law in the Protectorate, and it is believed that no action under that Act has yet been needed. The Notification of the 9th May, 1897, appropriating a belt of land in connection with the railway, deals only with land on either side of the line.
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As has been said above, the several legislative Orders and Regulations which have been issued from time to time in East Africa have almost certainly been applied natives" and to their property; and notwithstanding that, in strictness, the Orders in Council under which the British authorities act did not allow such applica- tion, it does not appear to have produced any evil effects; it is, indeed, in accord- ance with the tendency noted in the above-mentioned Report of your predecessors in office (Document Z).
It seems, therefore, proper to consider whether, in such a region as East Africa, in order that the Protectorate may produce its due effect in regard to the good government and the development of the country, the Protecting Power should not assume jurisdiction over waste and uncultivated land in places where the native Ruler is incompetent, whether from ignorance or otherwise, to exercise that jurisdic- tion.
All those of the above-mentioned papers which relate more directly to the Land Regulations of Uganda and of East Africa were referred to Mr. Albert Gray for his
• No. 78.
advice as to how they could be dealt with so as to overcome the various difficulties which had become apparent. Mr. Albert Gray's reply of the 21st June last (Docu- ment I) analyses the several questions on which a decision must be-taken, and points out that the treatment of them must depend primarily on the nature of Her Majesty's title to land in the Protectorates, or, in other words, of the extent of the right to deal with it.
The questions on which I have the honour to ask for an expression of your opinion are the following:-
1. In regions where Her Majesty exercises rights of Protectorate under Treaties such as those made by the British East Africa Company, which do not specifically grant to Her Majesty the right of dealing with waste or unoccupied land, does that right accrue to Her Majesty by virtue of the right of Protectorate? Is any difference made by the fact of the natives of the region with whom the Treaty was concluded being practically savages without any proper conception of ownership in land?
2. If, in your opinion, Her Majesty has not the right to deal with waste or unoccupied land in such regions, can you suggest means by which the difficulties of the system of land certificates can be met, or some alternative system, under which the difficulties would not arise?
3. Do you agree with Mr. Gray that Her Majesty can, by operation of the Indian Land Acquisition Act and of The East Africa (Acquisition of Lands)
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Order in Council, 1898," grant a title amounting to a freehold? And are you of opinion that a freehold title can by those means be given in such a region as is indicated under (1)?
Lord Salisbury would be glad at the same time to be favoured with your observations on-
(a.) The form or the substance of the several Regulations and Notifications issued by the Commissioner and mentioned in the present reference;
(b.) On the proposal which is dealt with in Mr. Gray's above-mentioned letter (Document P'), to extend to the rest of the East Africa Protectorate the Regulations already promulgated in the Sultan's dominions for the purpose of preventing the creation of fictitious titles to waste or unoccupied land (Document E); and
(c.) The form of conveyance for land in the Sultan's dominions, submitted in Mr. Cave's despatch, No. 70, of the 22nd February last (Document Y).
(A.)
List of Papers.
"Africa No. 4 (1892) " (Parliamentary 3461).
I have, &c.,
FRANCIS BERTIE.
June 15, 1895.
(B.) Imperial British East Africa Company's Rules and Regulations (Confidential 6715*). (C.) Notice in London Gazette " (Confidential 5617*) (D.) Transfer of Imperial British East Africa Company's rights, 1896. (E.) Registration of documents, East Africa Protectorate (F.) Colonial Office
...
(G.) East Africa Land Regulations, 1897.
(H.) Uganda Land Regulations, 1597.
(I.) Mr. Gray
(J.) Notification (Railway Belt) ...
(K.) Notice (Compulsory purchase of Land)
(L.) “Africa Order in Council (1889)" (Confidential 5846**).
(M.) Notification ·
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(N.) East Africa Order in Council (1897)" (Confidential 6933*). 10.) "Indian Land Acquisition Act (1894).' (P.) Mr. Gray
(Q.) "East Africa Order in Council (1898)" (Confidential 7037*). (R.) Sir A. Hardinge
(S.) Mr. Gray
(T.) Sir A. Harlinge
14822
(U) Amended Land Regulations for East Africa
December 21, 1896. September 4, 1896.
April 7, 1897. May 9, 1897. June 12, 1897.
July 8, 1897.
June 21, 1899.
(No. 216)
September 5, 1897. November 17, 1898.
(No. 14)
January 7, 1899.
...
December 29, 1897.