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PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
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of the mining interest, as such. That expressio unius est exclusio alterius," and in other respects the Company's land might, Mr. Read was to submit, be made subject to local legislation affecting land such as Section 4 of the Railway Pro- clamation (Chapter 53), which was not confiscatory or an encroachment on the Company's rights.
That you concurred in the above view and, if the Company still maintained their position that their rights in respect of the lands in question were not subject to the legislation of the Protectorate, you presumed that it would be open to the Officer Administering the Government to direct the Resident or some person specially appointed for the purpose to assess the compensation to be paid to the Company for the land. That action could then be taken under Proclamation 3 of 1909, the amount of the compensation assessed as above could be tendered to the Company and, if they refused to accept it, paid into Court or retained by the Government pending a settlement.
That Mr. Read was to request us to be good enough to take the matter into consideration and to advise you :—
(a) Whether, in our opinion, there was any justification for the contention of the Niger Company, and what were their exact rights in the case of the lands retained by them under the Agreements of 1899 and 1900?
(b) What was the true and proper construction of the Royal Niger Company
Act, 1899?
(c) Whether the course suggested in the eighth paragraph of the letter of
reference was correct?
(d) Generally.
We have taken the matter into our consideration and, in obedience to your commands, have the honour to
Report-
(a and b) That, in our opinion, the Royal Niger Company Act of 1899 did no more than authorise the expenditure of money for the carrying out of the proposed acquisition of certain of the Company's rights and property, and the contention of the Company that their rights in respect of lands retained by them are not subject to the legislation of the Protectorate is unfounded. The Company hold their land under a title recognised as freehold by the Government in 1900, but the Govern- ment can nevertheless, by appropriate local legislation, provide for the compulsory acquisition of any of it.
(c) We are of opinion, however, that the existing local legislation does not authorise a compulsory acquisition of freehold land. The authority given by the Proclamation No. 3 of 1909 is to appropriate and occupy any of the lands of the Protectorate," and the Proclamation, whilst it clearly indicates the intention that nothing shall be taken without compensation, provides for compensation for the occupier only.
The proper course, therefore, is to issue a further Proclamation making it lawful to acquire compulsorily any freehold land within the Protectorate and setting forth the terms upon which the owner and/or the occupier should be compensated and the manner in which any dispute as to the amount of compensation is to be settled. If the Company still insist that their rights cannot be affected by Protectorate legislation action can be taken under the new Proclamation.
(d) We have nothing to add.
The Right Honourable
L. Harcourt, M.P.,
&c.,
&c., &c.
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4679
SIR,
No. 160.
(CANADA.)
LAW OFFICERS to FOREIGN OFFICE.
[Pelagic Sealing Treaty.]
Royal Courts of Justice,
December 21, 1912.
We were honoured with your commands signified to us in Sir Eyre Crowe's letter of the 17th April last, transmitting to us the accompanying papers with reference to pelagic sealing in the Behring Sea, and the threatened diversion of the seal-skin market from London to the United States.
Sir E. Crowe was directed to request us to favour you with our opinion whether the United States Government is bound by Article 11 of the Treaty between the United Kingdom, the United States, Japan, and Russia (dated 7th July, 1911) to send the whole of their catch of seal-skins to the London market (at least until the American Government has recouped itself in skins for the advance payment of $200,000 to Canada), having regard to the fact that the said Article provides that the value of the skins "shall be reckoned at their market value in London at the date of the delivery before dressing and curing."
We have taken the papers into our consideration, and, in obedience to your commands, have the honour to
Report-
That, in our opinion, it is impossible to contend that Article 11 of the Treaty of the 7th July, 1911, imports an obligation upon the United States of America to send to the London market the whole of the seal-skins taken from the American herd until such time as the United States Government shall have recouped themselves for the advance payment of $200,000.
The utmost that could be contended is that the Treaty imports an obligation in respect of the British and Japanese shares, viz., thirty per cent. in number and value of the total. The argument would be that this obligation arises by implication from the provision that the number of skins to be retained by the United States of America is to be reckoned by reference to " their market value at London at the date of their delivery and less cost of transport from the Pribilof Islands." This argument is no doubt supported by the circumstance that the words " date of their delivery "suggest an actual delivery in London, and the application of these words is obscure unless the British and Japanese share of skins are, in fact, sent to London. If the fixing of this date is essential to the agreement, this might bring the case within the propo sition of law that where one party enters into an arrangement which can only take effect by the continuance of a certain state of circumstances there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances in which alone the agreement can be operative.
There is no provision in the Treaty which would support the argument that the United States of America are obliged to continue to send a seventy per cent. balance of skins to London. The utmost that could be contended would be that this obliga- tion exists in respect of the thirty per cent. We do not, however, feel at all confident that this view would prevail even as to the thirty per cent., but we indicate the above
go, argument as being the best way of putting the contention so far as it will
We have, &c.,
RUFUS D. ISAACS. JOHN SIMON.
The Rt. Hon. Sir Edward Grey,
Bart., K.G., M.P., &c., &c.
We have, &c.,
RUFUS ISAACS. JOHN SIMON.
(28689-9) Wt. 91–591. 25, 2,13. D & 8,
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