CO885-(11-13) — Page 242

No. 31.

(CAPE OF GOOD HOPE.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Lincoln's Inn, 14th July 1874. We are honoured with your Lordship's commands, signified in Sir Henry Holland's letter of the 3rd instant, stating that he was directed by your Lordship to transmit to us copy of an Ordinance, No. 5 of 1874, which had been recently passed by the Legislative Council of the province of Griqua Land West, and, having been assented to by the Governor of that province, is now in operation.

2. That the Ordinance, as would be seen, repeals three proclamations which had been issued in the province by two Commissioners when acting there under authority of a proclamation of the Governor Sir H. Barkly.

3. That those three proclamations recited that the titles to certain farms were not subject to a reservation of minerals and precious stones in favour of the Crown, and that the proprietors of those farms now protest against the Act on the ground that it materially prejudices their title and proceedings before a court of law, and was a breach of faith towards them.

4. That their case would be found stated in an address delivered against the passing of the Ordinance by Mr. Halkett at the Bar of the Legislative Council; and that he, Sir Henry, was to annex for our information copies of the Report of the acting Attorney-General, Mr. Sheppard, and of the following papers noted in the margin, Enclosure 2. which were referred to by Mr. Halkett. That he was also to annex copies of protests Enclosure 3. which had been made against the Ordinance by Mr. Ebden and by Mr. Sturt on behalf of a Land Company who were proprietors of one of the farms in question.

5. That, on the other hand, the reasons for passing the Ordinance would be found in the enclosed extracts from despatches of Sir Henry Barkly and Lieutenant-Governor Southey, from which it would be seen that there was no intention, in passing that law, to interfere with the fair trial in a court of law of the title of the parties interested in those properties. But that the question remained, whether in fact, there being no words to that effect in the Act, it might not, if allowed to remain in operation, prejudice those parties in any legal proceedings taken to establish their title to the minerals.

6. That whether the proprietors of the farms or the Crown are entitled to the precious minerals under those farms, was a question of considerable difficulty, upon which lawyers of eminence had given different opinions, but that it was a question to be determined by a competent court of law, and that your Lordship was not called upon to decide it. That the sole question now before you was whether Her Majesty should be advised to allow the Act to remain in operation, or to disallow it.

7. That Sir Henry was to add that the London and South African Company had been advised that they should petition the Secretary of State to advise Her Majesty to refer the matters complained of by the Company to the Judicial Committee of the Privy Council for consideration under the provisions of the Statute 3 & 4 William IV. c. 41; but no such petition had as yet been presented.

8. Under those circumstances he, Sir Henry, was to request that we would favour your Lordship with our opinion,—

1. Whether Her Majesty should be advised to disallow this Ordinance, or to leave it in operation.

2. Whether, if the Ordinance is disallowed, and proceedings are taken before a Court of Law to settle the question as to whether the Crown or the proprietors are entitled to the minerals, it would be open to the Crown to dispute the validity and effect of these three proclamations, either as issued per incuriam, or by persons not having authority to inquire into and decide upon titles, or as not having been confirmed by the Governor, or on any other ground; and whether it would be expedient, when communicating the fact of disallowance to the Lieutenant-Governor, to state that it must be distinctly understood that the Colonial Government are not by such disallow- ance to be in any way prejudiced in any right they may have to dispute the validity and effect of these proclamations in any proceedings that may be taken at law to decide the title to the minerals.

▲ 1991689. 25.-19/84.

8

PUBLIC RECORD OFFICE

Reference :-

TPICO.

885

12 PUBLIC RECORD OFFICE, LONDON

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