CO885-(11-13) — Page 468

PUBLIC RECORD OFFICE

Reference :-

། ། ;། ༅། C.O.

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

l'age 1 of Vol. 1 of Griqualand Laws.

Article 6, which empowers the Government to open diggings to the public on purchased farms or on farms which the proprietors have refused to sell, under such regulations as are or may be made.

Article 7, which provides for the office of Government inspector, and empowers such officer to lease claims of 30 feet square at a monthly license of 108. or more.

Article 10, which empowers the Committee to make regulations for the good order, local circumstances, and social management of the diggings.

Article II, which gives the Government inspector all the powers of the committee of management in the event of there being no such body.

Article 16, which empowers the Government to permit diggings on farms not taken over on compensation under Government supervision and under the regulations affecting farms which are not taken over.

Article 17, which divides the proceeds of the licenses between the owners of the farms and the Government, in order to defray the expenses of Government connected with keeping up an oversight over the diggings.

Article 19, which charges the Government with the framing of regulations regarding wood, water, and grazing, as `likewise for buildings, lands, and business stands; and requires the owners to conform to such regulations.

Article 20, which exempts from Article 1 farms on which diggings had been already opened.

9. That on the 10th of July 1871, by virtue of Article 10 of that Ordinance, regulations were drawn up by the committee of management constituted by Article 9, and were amended and approved by the Free State Government, see page 64 of Record No. 79. That these regulations appeared to have taken the place of those of the 15th May 1871. That the same amount of license fee, viz., 108. 6d. per month, with the exception of "Old Briefjes' was payable under both sets of regulations. That it appeared that the agents of the Company received these license fees from the diggers, and paid one half of the amount to the Government inspector, Mr. Finlason.

29

10. That the Company seemed to have paid over the first of these payments under protest, and that it might be taken for the purposes of this case that the legal position of the Company was not altered by these payments. for the purpose of this case that no "Old Briefje licenses were now in existence, That it might also be taken and that all licenses to dig for diamonds confer the same rights upon their holders.

11. That the sovereignty of Griqualand West was resumed by the British Crown in the Autumn of 1871, the Crown accepting a cession of that sovereignty from Captain Waterton, Chief of the Griquas, and a series of proclamations was issued by Sir Henry Barkly, then Governor of the Cape, all bearing date the 27th of October 1871. That by one (No. 67) Griqualand West was declared to be British territory, and although the British boundary was afterwards for some time in dispute it was eventually settled so as to include Dorstfontein, and as a matter of fact de facto jurisdiction was exercised by the English Crown from 27th of October 1871 uninterruptedly over so much of Griqualand West as included Dorstfontein.

That copies of all these proclamations would be found in the accompanying volume of Griqualand Laws, beginning at page 1, but that it was only necessary specially to notice No. 71 at page 15 and 72 at page 23.

12. That proclamation No. 72 declared (inter alia) that Her Majesty had no intention to invalidate or prejudicially to affect or injure in any way rights or titles of private persons to lands; and that all such existing titles of private persons would be duly respected and considered valid and confirmed by Her Majesty's Government as would under the laws of the State and Government under which such persons were living de facto have been considered valid by such State or Government. provision obviously framed in view of the preceding exercise of de facto jurisdiction That (this was) a by the Orange Free State.

13. That proclamation No. 71 dealt with diamond diggings; and that the questions in this case arose upon the 29th or last article of that proclamation. Council have decided that Dorstfontein falls within that class of farms dealt with by That the Privy that article, i.e., land the property of any private person the title to which is not subject to any reservation of precious stones or minerals, and that the Crown must account to the Company for the license fees received from diggers on the field established on the farm.

14. That part of Dorstfontein had been declared public diamond fields in pursuance of Article 29 by a proclamation of the 17th of November 1871, page 69 of Record No. 36, and that the Company acting under the power assumed to be given to owners under Article 29 now require the diggers to pay instead of 108. 6d. per month a rent or

3

royalty of 6 per cent. per annum on an assessed value of their claims, and they have served notice on the Government requiring them to collect henceforward at that rate. That the increase had not yet been enforced, but the Lieutenant-Governor had applied to you for advice as to the position in which the Government was now placed. That he was to enclose copies of two reports of the Attorney-General of Griqualand West upon the case, which explained the views entertained in the Colony. That in connection with those reports he was to direct our attention to the passage in the judgment of the learned Recorder of Griqualand West, in page 186 of Record, in which he denied the right of the proprietors to raise the license duty arbitrarily on the ground of a supposed agreement between the proprietors and the diggers, perpetuated by a notice from the Commissioners administering the Government of the 30th of December 1871, page 74 of Record, issued in consequence of the letter from the Company's agent (page 73) of the 28th of December, and he was to request us to be good enough to consider them and favour you with our opinion--

(1.) Whether the Company may of their own motion lawfully raise the license fees beyond the rates existing at the date of Sir H. Barkly's Proclamation No. 71.

(2.) If so may they fix the fees from time to time as they think proper.

(3.) Or would they be bound (as suggested by the Colonial Attorney-General) to

limit the fees to reasonable amount.

(4.) Is the Government bound to collect whatever fees the Company may fix and to account for the same to the Company; if so, are the Government liable to damages for any sums not collected.

(5.) Would the preceding question be affected by the circumstances of the diggers refusing to the fees, and of the Government being unable to compel them to do so.

pay

connection with this point, regard might be had to the pro- vision in Article 29 of the proclamation, which empowers the Government to retain against the proprietors the expenses of keeping order and collecting the dues even if those expenses exceed ten per cent. of the rents; and it might be put to the Company that the raising of their rents, which would probably provoke resistance to lawful authority, would in fact entail cost on the Government which would swallow up the whole rents and thus leave nothing for it to hand over to the proprietors.

(6.) Is it open to the Government without fresh legislation to relinquish the col- lection of license fees, and, leaving the Company to enforce its rights, requiring it to account for any part of sums collected by its officers.

(7.) Does the Government now possess the powers conferred by the 19th Article of the Free State Ordinance No. 3 of 1871, or are these powers diminished or modified by the 29th Article of Sir H. Barkly's Proclamation No. 71.

(8.) May the Company lawfully make such charges as they think proper for stands,

buildings, areas, &c. (see page 134 of Confidential Paper No. 61).

(9.) If so, will the answer to questions 4 and 5 apply to such charges.

Mr. Meade was also to request us to be good enough to favour you with any further observations which might suggest themselves to us upon this difficult matter.

In obedience to your Lorship's commands we have the honour to

That-

Report

1. The Company may of their own motion lawfully raise the license fees beyond the rates existing at the date of Sir H. Barkly's Proclamation No. 71.

2. The Company may fix the fees from time to time as they think proper.

3. The Company are not bound (as suggested by the Colonial Attorney-General) to limit the fees to reasonable amounts.

4. The Government is under the proclamation bound to collect whatever fees the Company may fix, and to account for the same when collected to the Company. If under the Colonial Law an action can be maintained against the Government, we think the Company would be able to recover against the Government any damages arising from the non-performance by them of the duty created by the proclamation.

5. It is the duty of the Government to use all reasonable efforts to collect the fees, and if the Government do this, they cannot be made responsible simply because under the circumstances it is impossible to compel payment.

6. It is not open to the Government without further legislation to take the course proposed.