CO885-(13-15) — Page 519

26316/1907

No. 155A.

PUBLIC RECORD OFFICE

Reference :-

mmc.O.885

14 PUBLIC RECORD OFFICE, LONDON

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

BRITISH CENTRAL AFRICA PROTECTORATE.

[Succession Duty in British Central Africa Protectorate.] FOREIGN OFFICE to the LAW OFFICERS OF THE CROWN.

Foreign Office, September 14, 1897.

GENTLEMEN,

I HAVE the honour, by direction of the Marquess of Salisbury, to transmit to you the papers noted in the accompanying list which relate to the question whether succession duty is due to the Treasury of the British Central Africa Protectorate on real property situated in that Protectorate, and forming part of the estate of a deceased British subject, or of any other person assimilated to a British subject in regard to such a matter.

Your opinion is requested in order that His Lordship may reply to the inquiry made in Messrs. Stibbard, Gibson, and Wills' letter of the 17th October last (docu- ment A).

The British Central Africa Protectorate is a Protectorate in the sense in which the term is ordinarily used at the present time. The territory comprised in it is recognised by Great Britain and by other Powers as being within the sphere of influence of Great Britain and under her protection. But every portion of the terri- tory is, with more or less regularity, placed under the immediate sovereignty of native Rulers, who have, however tacitly or explicitly, delegated to the Queen the power necessary for enabling her to exercise within their several sovereignties administrative and legislative authority over all persons other than their respective immediate subjects. These functions are exercised by the Queen, in conformity with the provisions of the Foreign Jurisdiction Acts, by means of Orders of Her Majesty in Council, the most important of which, and probably the only one that you need consider for the purpose of the present reference, is "The Africa Order in Council, 1889" (document B).

Article 13 of this Order provides that, subject to the other provisions of the Order, the civil and criminal jurisdiction exercisable in any place under the Order shall, so far as circumstances admit, be exercised upon the principles of and in con- formity with the substance of the law for the time being in force in and for England; and the fee Table annexed to the instructions (document C), issued under the Order in Council, directs that the fee payable on probate, &c., shall be the like sum as is payable for the time being in England for stamp duty in like case, not exceeding a certain fixed limit.

It does not appear that the Foreign Jurisdiction Acts, the above-mentioned "Africa Order in Council, 1889," or any other Aots or Orders in Council, make pro- vision for the exercise of jurisdiction by Her Majesty in regard to real property situated without her immediate dominions, whether it be situated in the British Central Africa Protectorate or not.

Lord Salisbury has been advised that such a matter as the succession and the taxation of such property on transfer by succession or otherwise is held in English law to be governed by the lex loci rei sita: it is therefore consonant with this principle that the Foreign Jurisdiction Acts and the Orders in Council issued there- under should abstain-as it is thought they do from making provision for the exercise by the Queen of jurisdiction in regard to the succession to or succession duties on real property situated without Her Majesty's immediate dominions.

It is therefore.conceived that, so far as concerns the principles and substance of English law; succession to and succession duties on real property in the British Central Africa Protectorate must be held to be governed by the particular native law applicable to the property.

It does not appear that Her Majesty has acquired technically the power to legislate on the subject of the succession to and succession duties on real property situated in the Protectorate, and forming part of the estates of British subjects, neither does it appear that Her Majesty's Representative in the Protectorate has. on the assumption that he possessed such authority, issued any legislative provisions purporting to regulate such matters.

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