+
Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
"
(V.) Colonial Office
(W.) Sir A. Hardinge
(No. 313)
(N.) East Africa Order in Council (Confidential 7189*) (Y.) Mr. Cave
(No. 70)
(Z.) Law Officers (Confidential 6796,
(A.A.) Colonial Office
January 26, 1899. October 4, 1898. October 7, 1899. February 22, 1899. February 14, 1895, April 7, 1899.
34921. S.
Report.
1 and 2. We are of opinion that in such regions the right of dealing with the waste and unoccupied land accrues to Her Majesty by virtue of her right to the Protectorate. These Protectorates over territories occupied by savage tribes, have little in common with Protectorates over such States as Zanzibar, which enjoy some form of settled Government, and in which the land has been appropriated either to the Sovereign, or to individuals. Protectorates, such as those now under considera- tion, really involve the assumption of control over all lands unappropriated. Her Majesty might, if she pleased, declare them to be Crown lands, or make grants of them to individuals in fee, or for any term,
:
The question of the system to be pursued is really one of policy. Probably a continuance of the plan of granting certificates may work very well; and there may be good reasons for not giving more than a tenure for a term of years.
We would point out that the issue of such certificates involves the assumption
of entire control over the land in question just as much as a conveyance.
3. It seems to us doubtful whether " The Indian Land Acquisition Act" and The East Africa (Acquisition of Lands) Order in Council, 1898," were intended to apply to unappropriated lands. They seem, in their terms, applicable only to land which has an owner to whom compensation can be paid. We agree that Her Majesty can, under this Act, and Order in Council, in all cases to which they apply, grant a title amounting to a freehold. Of course, if they have been applied to unappropriated lands, it amounts to an assumption of title in them by Her Majesty. 4. (a.) As regards the Land Regulations with annexed certificate (U) we have only to point out that the form seems hardly applicable where land is granted, merely for timber cutting or mining purposes.
Clause 2 imposes in all cases the obligation of either cultivating the land, or placing stock upon it. We would suggest that there should be alternative forms for use in the various cases contemplated.
As regards Uganda, a fresh Order in Council would be required to enable the making of such Regulations, and also the other Regulations proposed regulating the use of unoccupied land.
As regards the notification as to Mombasa Railway land (J) it was apparently not within the terms of the Order in Council, but it was issued by the order of the Secretary of State for Foreign Affairs--it was therefore the act of the Crown, and cannot be questioned.
As regards (K), even if ultra vires at the time it was made, it has been rendered good by the application to natives of the Order in Council 1897 by the Order in Council 1899, validating past dealings.
(b.) As regards the proposed Unoccupied Land Regulations (T), whatever form of words is employed they must amount to an assumption of a disposing power over unoccupied land. The adoption of the expression "public" lands instead of
Crown" lands, hardly veils the effect of the Regulations.
Lands which are
"public," must, under the circumstances of such Protectorate, be Crown lands, or under the control of the Crown. There is, in our opinion, no objection to the expression "public lands."
(c.) The form of conveyance seems suitable for any land vested in Her Majesty, which the Commissioner is authorized by Her Majesty to convey. able to land nominally vested in the Sultan, nor to unappropriated land which has It is not applic not been adopted as Crown land.
Royal Courts of Justice,
December 13, 1899.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
*
No. 242A. (South Africa.).
LAW OFFICERS TO COLONIAL OFFICE.
Report.
THAT 1. A Diplomatic or other Agent of the enemy Government, whether he be
a burgher of the South African Republic or Orange Free State, or a subject or citizen of
a neutral Power, may be made a prisoner of war if he be found within British territory or
on board a British vessel on the high seas or within a British Protectorate.
All subjects of an enemy State are liable to be made prisoners of war:
It has not been usual to exercise any right of this sort, at least with regard to those resident in the territory of the other belligerent at the commencement of hostilities, unless- there be some special circumstances rendering the detention proper. If the individual is in the service of the enemy and acting in furtherance of his hostile operations as a Diplo matic or other Agent, his seizure and detention as a prisoner of war would be perfectly proper. The subject or citizen of a neutral Power who takes service with the enemy for the purpose of furthering his hostile operations as a Diplomatic or other Agent may be treated as an enemy, and seized and detained as a prisoner of war under the same circum- stances as if he were a subject of the enemy State.
We ought, however, to point out that considerable difficulty might exist as to proving this service in point of fact. The neutral individual might have had corre- spondence with the enemy, and might be to a certain extent co-operating with them without his having so far identified himself with the enemy as to have lost his neutral
character.
Where such Agents are found on British territory, even though they are merely passing through, they may be seized and detained, and so in the case of British ships on the high seas. British Protectorates, such as those in Southern Africa, may for this purpose be regarded as British territory, and the seizure may be there effected. Indeed, the seizure of any one in the service of the enemy as a prisoner of war may be effected wherever there would be no violation of the rights of a neutral Power.
With regard to neutral vessels in British territorial waters or in British ports, questions of
We believe that the true view of international law great nicety might arise.
is that enemies might be seized on board such vessels when they are so within British territory, but, having regard to the class of questions which might arise, we think that seizure in such cases should be effected only if the necessity be very urgent.
2. Does not arise.
The
3. The seizure may be effected by any person authorized by Her Majesty. authority of Her Majesty may be given by subsequent ratification, but ordinarily there should be an order, of the Secretary of State, or of the Governor or Commander, or some person in a similar position of authority, before the arrest is effected.
4. Does not arise.
5. Under the head of General Advice we have nothing to add except that the right of seizing such persons as prisoners of war should, particularly in the case of neutrals, be exercised only when there is some strong reason for it. With regard to persons residing
This is the case
in the Queen's dominions, and so enjoying her protection, if they adhere to the Queer's enemies they are liable to the penalties of the law relating to treason. with regard to neutrals so residing, and there is high authority for saying that the same law applies in the case of a subject of the enemy State if he is apparently residing peace- ably in the Queen's dominions and taking advantage of her laws for the protection of his property and person.
December 16, 1899.
34331.
S.
CASE.
(Secret.)
COLONIAL OFFICE to LAW OFFICERS.
Downing Street, December 15, 1899. GENTLEMEN,
I AM directed by Mr. Secretary Chamberlain to request your consideration of the question as to what powers can be exercised by Her Majesty's Government should any
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