CO885-(13-15) — Page 681

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PUBLIC RECORD OFFICE

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Reference:

C.O.885

| CUPTRIGAT PMUTUGRAFIENOT TO

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-|

British territory in the regions adjacent to the Colony of Hong Kong should be enlarged under lease to Her Majesty in the manner described in the said Convention:

And whereas by an Order of Her Majesty in Council, dated the 20th of October 1898, it was amongst other things ordered that the territories within the limits and for the term described in the said Convention should be and the same were thereby declared to be part and parcel of Her Majesty's Colony of Hong Kong in like manner and for all intents and purposes as if they had originally formed part of the said Colony, and it should be competent for the Governor of Hong Kong, by and with the advice and consent of the Legislative Council of the said Colony, to make laws for the peace, order, and good Government of the said territories as part of the Colony :

And whereas by Article 4 of the said Order in Council it was provided that, notwithstanding anything in the said Order in Council contained, the Chinese officials at the date of the said Order in Council stationed within the City of Kowloon should continue to exercise jurisdiction therein, except in so far as might be inconsistent with the military requirements for the defence of Hong Kong :

And whereas the exercise of jurisdiction by the Chinese officials in the City of Kowloon having been found to be inconsistent with the military requirements for the defence of Hong Kong, it is expedient that Article 4 of the said Order in Council should be revoked, and that the Chinese officials within the City of Kowloon should cease to exercise jurisdiction therein, and that the said City of Kowloon should become part and parcel of Her Majesty's Colony of Hong Kong for all purposes during the continuance of the term of the lease in the said ('onvention mentioned;

Now, therefore, Her Majesty is pleased by and with the advice of Her Privy Council, to order, and it is hereby ordered as follows:-

1. Article 4 of the Order of Her Majesty in Council, of the 20th of October 1898,

is hereby revoked without prejudice to anything lawfully done thereunder.

2. The City of Kowloon shall be, and the same is hereby declared to be, for the term of the lease in the said Convention mentioned, part and parcel of Her Majesty's Colony of Hong Kong in like manner and for all intents and purposes as if it had originally formed part of the said Colony.

3. The provisions of the said Order in Council, of the 20th October 1898, shall apply to the City of Kowloon in like manner as if the said City had by the said Order in Council been declared to be part and parcel of Her Majesty's Colony of Hong Kong.

And the Right Honourable Joseph Chamberlain, one of Her Majesty's Principal Secretaries of State, is to give the necessary directions herein accordingly.

R. E. W. R. B. F.

1061/02

GENTLEMEN,

No. 242.*

(SOUTH AFRICA.)

FOREIGN OFFICE to LAW OFFICERS.

[Power of dealing with land in Protectorates.]

Foreign Office, November 18, 1899. I HAVE the honour, by direction of the Marquess of Salisbury, to transmit to you the papers noted on the accompanying list, which relate to the power of dealing with land in Protectorates.

These papers deal primarily with the East Africa and Uganda Protectorates, but the questions on which your advice is sought are not peculiar to those territories, and should be settled according to general principles.

Protectorates may, for the purposes of the present reference, be conveniently divided into two classes: in the one, of which Zanzibar and Tunis are examples, the Protected Power has developed an administrative, legislative, and judicial system, and possesses a body of law regulating, inter alia, the tenure and the transfer of land; above all, the ideas of State and private ownership in land are fully understood. In the other class of Protectorates the sovereignty, if it can be said to exist at all in regard to territory, is held by many small Chiefs, or Elders, who are practically savages, and who exercise a precarious rule over tribes which have not as yet developed either an administrative or a legislative system; even the idea of tribal ownership in land is unknown, except in so far as certain tribes usually live in a par- ticular region and resist the intrusion of weaker tribes, especially if the intruders belong to another race. The occupation of ground in which a season's crops have been sown or where cattle are for the moment grazing furnishes the nearest approach to private ownership in land; but, in this case, the idea of ownership is probably con- nected rather with the crops and the cattle than with the land temporarily occupied by them. The whole of the East Africa Protectorate outside the coast strip consti- tuting the mainland dominions of the Sultan of Zanzibar may be placed in the second class. In the Protectorate of Uganda the Kingdom of Uganda proper might, per- haps, in some respects, be placed in the first class; but the present request for advice deals mainly with regions in the second class.

The Treaties made by the Imperial British East Africa Company are given at pages 12-16 of the Parliamentary Paper, " Africa No. 4 (1892)," where a copy of the Charter will also be found. (Document A.)

Special attention is called to the terms of the Treaty given at the top of p. 15 of the above-mentioned Parliamentary Paper. The Charter recognizes the Treaties, and under Article 23 (8) confirms to the Company, in so far as Her Majesty is con- cerned, the right to grant lands for terms or in perpetuity absolutely.

It therefore seems clear that the exercise of whatever rights over land the Com- pany possessed under Treaty grants from the Chiefs has been confirmed to them in the fullest and most ample manner by the Crown--and that by the transfer of the administration, noticed below, the Crown now holds all the rights, whatever they may have been, which were held by the Company at the date of the transfer.

The measure of the rights of the Crown in this regard, however, appears to be determined by the extent of the Treaty rights of the Company which passed on the transfer of the administration.

In January, 1894, the Imperial British East Africa Company submitted for the approval of the Secretary of State certain Rules and Regulations regarding land. (See Document B.) The Secretary of State concurred in their issue, although he avoided expressing any opinion on their contents.

On the 15th June, 1895, a Notification (Document C) was published in the "London Gazette" of the British Protectorate over territories in East Africa late in possession of the British East Africa Company. The transfer of the Company's rights to Her Majesty's Government was recorded by a deed of the 20th May, 1896 (Document D), and the transfer itself was formally effected in East Africa on the 1st July.

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