34189
PUBLIC RECORD OFFICE
C.O.885
Reference :-
No. 86.
(SOUTH AFRICA: SWAZILAND.)
LAW OFFICERS to COLONIAL OFFICE.
[Rights of the Crown in connection with land in Swaziland: draft Order in Council.]
Royal Courts of Justice,
September 25, 1907. MY LORD,
We were honoured with your Lordship's commands, signified to us in Mr. R. L. Antrobus's letter of the 3rd instant, Stating that he was directed by your Lordship to transmit, for our consideration, copies of telegrams from and to the High Commissioner for South Africa, in which is raised the question as to the rights of the Crown in connection with land in Swaziland. That the despatch referred to was also enclosed for our consideration as far as it concerned Swaziland. That we should observe that the High Commissioner proposed that portions of Swaziland should bo vested in himself by Order in Council so that he might deal with them on behalf of His Majesty and thus be in a position to carry out the policy which had been agreed upon of dividing Swaziland between the natives and the concessionaires and of giving freehold titles after division to such persons as That pro- were originally granted concessions over land for 99 years or more. vision for the purpose was made in the Governor's Proclamation No. 3 of 1904. That we should see that the High Commissioner had, inter alia, power to revoke rights to land (see Section 14 (1) or to grant titles (Section 20 (2\) in certain circum- stances.
That the draft Order in Council submitted by the High Commissioner was based on the Crown Lands Order in Council of the 16th May, 1904, for the Bechuanaland Protectorate. Also that it might be stated to follow generally the lines of the East Africa (Lands) Order in Council of the 8th August, 1901.
That your Lordship had, however, felt doubts whether the position of Swaziland did not differ in this respect from that of the other two Protectorates mentioned, namely, that whereas in the case of the Bechuanaland Protectorate, the chiefs had definitely abandoned certain portions of their territory, and in the case of the East Africa Protectorate the land claimed has not been under any form of settled Government, in Swaziland there had been for many years a single Paramount Chief, and he and his people had never consented by any single act of a formal nature to the partition of their territory, or cession of their occupation rights over it. That in granting the concessions of mineral, agricultural, and grazing rights the Swazi King was accustomed to reserve his sovereign rights, including the rights of the natives to occupy the soil. That these concessions were all granted prior to 1890.
That for this reason your Lordship, in the telegram of the 28th August, expressed the doubt whether the land in Swaziland could be dealt with freely and in the manner contemplated for territories occupied by savage tribes by the present Lord Chief Justice and Sir R. Finlay in the opinion which they gave to the Foreign Office on the 13th of December, 1899.*
That on the other hand it seemed to your Lordship that there was considerable ground for the opinion that the Swazi people had ceased to retain any part of the sovereignty of the country, and that it was open to His Majesty's Government to treat unoccupied land as Crown land, and so to dispose of it in the manner contem- plated by the High Commissioner. That in order to indicate the grounds for this view, it was necessary to refer briefly to the history of the administration of Swazi- land.
That before the war the administration was carried on by the Government of the late South African Republic under the Convention of 1894 made by the Govern- ment of the South African Republic with His Majesty's Government. That the circumstances under which this Convention was signed were set out in the opinion That it was now sufficient to of our predecessors, dated the 12th of June. 1903.† say that the Convention was made entirely without the consent of the Swazis, who had declined to sign an "Organic Proclamation" intended to carry into effect a
No. 212 in Vol. V.
25 Wt 97 1207 D&S 6 30611
† No. 190 in Vol. VI.
16 PUBLIC RECORD OFFICE, LONDON
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