। ༴། ། ་། །།
PUBLIC RECORD OFFICE
Reference :-
C.O.
.885
COPYRIGHT PHOTOGRAPH-NOT TO
RF
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE
REPRODUCED PHOTOGRAPHIC-
༡
in such a manner as to place them under the control of a foreign Power or corporation or person, or from being dealt with in any other manner so as to prejudice British interests;
and
(3) In the event of the Company being unable to fulfil its guarantee, and no longer retaining a controlling interest in the railways, and in the further event of the appoint- ment of a receiver at the instance of the debenture holders, what steps it would be possible for His Majesty's Government to take in order adequately to protect British interests ;
and
(4) Generally upon the subject.
We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to
Report-
(1 and 2) That, in our opinion, His Majesty's Government can prevent the British South Africa Company from alienating any part of their territory to a foreign Power, or corporation, or person quite independently of the provisions of the Charter. When once territory has been declared, as in this case. to be under the jurisdiction of the Crown, defined by Orders in Council, no subject is able to withdraw it from that jurisdiction.
Different considerations arise in regard to the alienation of assets.
The pro- visions of the Charter and Orders in Council are mainly concerned with the authority of the Crown over the administrative acts of the Company and not over its assets or property. The rights of the Company, however, to deal with such assets within the jurisdiction depend on the Charter and Orders in Council.
They are subject, therefore, to the principles on which the Charter itself is expressly based and which may be said to be the valuable consideration moving the Crown to the grant thereof. Thus the petition for the Charter puts forward, as a reason for its being granted, the fact that a British Company controlled by British subjects having the confidence of the Crown, would be advantageous to the commercial interests of British subjects generally and this motive is adopted by the Crown and expressly declared to be the object of the Charter. This view is further illustrated by the provisions as to the domicile and national character of the Company and its Directors.
Finally, it is stipulated by Clause 35 that if the Company does not exercise ite powers under its concessions, agreements, and grants, so as to make good the representations in reference to British interests on the faith of which the Charter was granted, then the Crown may revoke the Charter. And it is to be observed titat the King in Council is the sole judge as to whether or not the justification for such revocation has arisen. The control of railways, which form the practical and almost only means of commercial transport or communication within the terri- tories of the Company, is obviously vital to the general administration of those territories, and We are of opinion that any arrangement which might result in placing those railways under foreign management or control, would be such a breach of the principles and considerations on which the Charter is founded as to justify a revocation under Clause 35. His Majesty in Council is also entitled to legislate for the territories in which the Company now operates, and it would be competent to the British Government thus to prohibit or prevent the Company from dealing with its assets in any way that would injuriously affect the safety or character of the territory from the point of view of British influence.
(3) Inability on the part of the Company to fulfil its railway obligations, except on terms which may involve the introduction of a controlling foreign element, would in effect be inability to fulfil the essential purposes of the Charter, and if there is any danger of such a situation arising, the view of His Majesty's Government in this regard might well be communicated to the Company. Alternatively, or in addition to this step, His Majesty's Government would, as indicated above, be acting within its powers and according to the true intent of the Charter if it vided against such a contingency by an Order in Council drawn so as to safeguard the British character and domicile of the railway companies in the same way as Clause 6 of the Charter provides for the British character and domicile of the Chartered Company, This course, however, would be attended with serious diffi- culty if the Company defaulted and foreign control were once definitely established
pro-
3
before the policy of the Government in reference to this matter had been explicitly asserted. The Government might still proceed legally by Order in Council, but a vested interest would then have been created and legislation affecting it would have to be accompanied by compensation to the railway companies. At present, those companies or their debenture holders could not reasonably set up any claim for pecuniary damage as the result of an order providing for the permanence of the same national character and domicile as that possessed by the railways at the time when the debenture holders and others invested their money therein.
The Right Honourable
The Earl of Crewe, K.G.,
&c., &c.,
&c.
We have, &c..
W. S. ROBSON. S. T. EVANS,