PUBLIC RECORD OFFICE
Reference :-
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHİC- COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
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therefrom. The Company's forces were assisted in the campaign against Lo Bengula by the co-operation of the Bechuanaland Police and native levies lent by His Majesty's Government, and it should be mentioned that His Majesty's Government accepted responsibility for the war (see Mr. Gladstone in House of Commons, 9th November, 1893, Hansard 595).
6. It was not a conquest on behalf of the Crown, since Southern Rhodesia is administered under the Foreign Jurisdiction Act, 1890, and that fact is conclusive against it being held to be British territory. It would, therefore, appear that any rights accruing to the Crown can only be in the character of successor to the authority ,and jurisdiction of Lo Bengula, i.e., as the protector of the natives, though not in the fullest sense sovereign of the territory. In this connection I am to refer you to the Law Officers' report of the 14th of February, 1895,* and to paragraphs 2 and 3 of the draft despatch to the Governor of the Gold Coast then submitted to and approved by them. Reference may also be made to reports by other of your predecessors in office of the 13th of December, 1899, 15th of August, 1905, and 29th of January, 1912,† with regard to the power of the Crown to deal with waste lands of Protectorates. Copies of these reports are enclosed for convenience of reference.
7. If the Crown be held to be in the position of successor to Lo Bengula's rever- sionary or other rights, it may be argued by the Company that the Crown, by giving the Company under the Charter the right to grant land and by imposing upon it under the Order in Council of 1898 the duty of providing reserves for natives, has, expressly in the one case and impliedly in the other, left the disposition of all land in Southern Rhodesia in the hands of the Company and that, subject to the require- ments of the natives, the Company can dispose of any land on its own account; and further, that even if there were a trust (as alleged by Mr. Barklie) and the trustee- ship has devolved upon the Crown, that trust has been carried out by the provision for reserves and the retention in the High Commissioner of the power to review all questions relating to the settlement of natives on the land in the territory.
8. Mr. Harcourt does not desire to trouble you to report upon all the issues which may be raised as between the Company and the inhabitants of Southern Rhodesia, but, with a view to safeguarding the interests of the Crown when the matter comes before the Judicial Committee, I am to request you to take these papers into your consideration, and, since the matter is of considerable urgency, at your early convenience to advise:
(1) Whether the Rudd and Lippert Concessions vest the soil of the territory
to which they relate in the Company as private owners; (2) If not, what are the rights, if any, of the Crown with regard to the owner
ship of the soil of that territory and what has been the effect of the Charter and the Order in Council with regard to the exercise of those rights;
(3) Whether a case should be prepared on behalf of the Crown, and what attitude generally should be adopted on behalf of the Crown when the matter comes before the Judicial Committee.
In the event of your answering the first question in the affirmative, I am to request you also to answer the second question on the assumption that it may apply to any part of Southern Rhodesia which may not be covered by the concessions.
17918
REPORT.
I am, &c.,
HENRY LAMBERT.
1. By the Rudd Concession of October 30th, 1888, as set out in Appendix A to Mr. Barklie's pamphlet (page 40), Lo Bengula, in consideration of and subject to monthly payment of £100, granted and assigned to the concessionaires "the com- together with plete and exclusive charge over all metals and minerals
a
full power to do all things that they may deem necessary to win and procure the same, and to hold, collect, and enjoy the profits and revenues, if any, derivable from the said metals and minerals.' Lo Bengula, by the same document, covenanted with
• Law Officers' Opinions, Vol. V., No. 78.
↑ Law Officers' Opinions, Vol. V., No. 242*; Vol. VII., Nos. 15 and 154.
R
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"
the concessionaires " to grant no concessions of land or mining rights from and after this date without their consent and concurrence." It seems clear, therefore, that the Rudd Concession is a grant of the right to work and win minerals, not a transfer of land containing unworked minerals; and though the concessionaires, under their power" to do all things that they may deem necessary to win and procure the same,' would be entitled to enter upon land and deal with it for the purpose of mineral development as they please, their right so to act is incident to their right to mine, and does not flow from ownership of the soil or indicate that they are proprietors of the territory. The first recital in the Lippert Concession confirms this view.
The Lippert Concession of November 17th, 1891 (Appendix B of Mr. Barklie's pamphlet, page 42) is a much more difficult document to construe. It recites that Lo Benguta has absolute power to allow persons to" occupy" land and to levy taxes thereon, and that it is desirable that the King should" assign" land to white settlers, and that it is further desirable that he "should once for all appoint some person to act for him in these respects ; and accordingly, in consideration of £1,000 down and an annual "rent" of £500 payable quarterly, the King grants to the concessionaire the exclusive right during 100 years" to lay out, grant, or lease, for such period or periods as he may think fit, farms, townships, building-plots, and grazing areas; to impose and levy rents, licences, and taxes thereon, and to get in, collect, and receive the same for his (the concessionaire's) own benefit; to give and grant certificates in my name for the occupation of any farms, townships, building plots, and grazing areas," &c. So far, therefore, as the concessionaire, or his assign, purports to alienate pieces of land to grantees in return for payment, he gives a title which is derived from Lo Bengula and is acting for him and in his name. by no means follows that the unalienated land of Lo Bengula belongs to the con- cessionaire, and, so far as the Lippert Concession is concerned, we think that upon its true construction, and especially in view of its recitals, it does not have this effect.
Although, in our opinion, the terms of the Rudd and Lippert Concessions are not such as to vest the soil of the territory to which they relate in the Company as private owners, the Company may none the less set up a title on other grounds. We do not know to what extent the Company could set up a title by occupation, but we under- stand that by "unalienated land" is meant land of which the Company has not as yet disposed to purchasers or lessees, and it may be that the Company could establish a title to this unalienated land independently of the concessions, by occupation. In addition to unalienated land as thus defined, there would appear to be a question as to who is entitled to the reversion upon leases which have been granted under the Lippert Concession.
2. The anomalous position of Southern Rhodesia in relation to the British Crown, and the obscure and uncertain character of native rights in the soil of that territory, make it a matter of extreme difficulty to determine what are the rights of the Crown in reference to the land of Southern Rhodesia. If the Crown annexes an area, private rights in the area annexed are not forfeited, though the private owner owes allegiance to a new sovereign. But, upon annexation, rights in the area annexed which formerly belonged to the old sovereign pass to the new sovereign. It follows, therefore, that, even if Southern Rhodesia had been annexed, such annexa- tion would not affect the ownership of land in private, as opposed to public, lands. Southern Rhodesia has not, however, been annexed to the British Crown, though it is under its protection; and the correct principle to apply appears to be that the Crown enjoys such attributes of sovereignty in the area as are necessary for its effective protection. Our predecessors have already advised, in the case of other Protectorates, that the powers of the Crown may in such cases extend to a right to deal with waste and unoccupied land as Crown lands.
If this line of reasoning is correct it follows that the Crown would be entitled to declare the unalienated lands in Southern Rhodesia to be Crown lands unless some private right of ownership in them can be established either by the Company or by some other claimant. It is not so clear that the Crown would have any title in the absence of such declaration, which should presumably be effected by Order in Council. The Company's Charter and the Southern Rhodesia Order in Council do not throw much light on this difficult problem; indeed, in some respects they make its solution more uncertain.
We would point out that the reference to the "territories of the Company in Clause 24 of the Charter, though it assumes territorial rights, can hardly be read as granting them; and though, by Clause 81 of the Order in Council, the Company is