CO885-(15-16) — Page 227

PUBLIC RECORD OFFICE

C.O.

Reference :-

885

15 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE | BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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Transvaal Concessions Commission previously referred to, and in particular to section 6 of the Concession granted to the Netherlande Railway Company, the only Company whose case needed now to be considered, which provided the lands placed at the disposal of the Concessionaire were to be held in "tenement" by him. That in the original Dutch copy of the Concession in your Department "zy worden voor zoo lang de concessie duurt hem in "brinkleen afgestaan " which would seem to imply a grant in the nature of a lease during the term of the concession, the duration of which was fixed. at 99 years subject to expropriation on very onerous terms. That you were not aware of the actual nature of the tenure thus conferred, but that assuming that the terms of grant employed conferred upon the Company au interest equivalent to a 99 years lease in this country, it would seem that the lands so granted became for that period the private property of the Netherlands Railway Company. That in any case, whatever the nature of the tenure of the Company, you presumed that the modern rule of inter- national law which does not permit of the confiscating of private property in conquered territories would make it very difficult to allege that by international or municipal law the lands which so became vested in the Netherlands Railway Company, or the other property of the Company such as rolling stock, were by right of conquest transferred to the Crown.

That if this assumption were correct, it became necessary to consider in what manner the property in the lands, rolling stock, and other property owned by the Netherlands Railway Company and other similar Companies in the Transvaal should be acquired.

That Mr. Graham was to transmit to us a copy of a confidential merno- randum dated the 30th of April 1902, transmitted to the German Ambassador at this Court by the Foreign Office, which explained the compensation which His Majesty's Government were prepared to pay to the shareholders and debenture holders of the Netherlands Railway Company, but that, should legislation be required to vest that property in the Crown, you considered that it would be very undesirable in any Ordinance or Order in Council which night be passed for that purpose to state that any compensation would be paid to the Company for the taking of their lands and other property, or to provide for the principles on which such compensation should be assessed, inasmuch as, having regard to the conduct of the Company during the war, and to the extremely liberal terms on which it is proposed that the debenture holders and shareholders shall be compensated, it would be undesirable to raise the question of any further compensation.

That it would be observed that in the Constitutions which have recently been proclaimed in the Transvaal and Orange River Colonies power was reserved to His Majesty to make laws for the Transvaal and Orange Kiver Colonies by Order in Council, and that you considered that it would be preferable to take whatever legal steps might be necessary to vest the railways in the Governments of these Colonies or in the High Commissioner, as tho caso might be, by Order in Council rather than by Ordinances passed in each of the Colonies separately dealing with the railways in each Colony.

That Mr. Graham was to request us to take those mutters into our consideration and to advise you--

1. Whether any railways previously owned by the State in the conquered

Colonies are vested in the Crown by right of conquest or otherwise?

2. Whether under the Articles referred to in the Transvaal and Orange River Colony Letters Patent the Governor in those Colonies has power to make grants of the lands and other property of those railways?

3. Whether any legislative steps are necessary or desirable with regard to

such lands?

4. Whether the lands and other property of the Netherlands Railway Company and other similar Companies in the conquered Colonies are vested in the Crown by right of conquest. If not, what steps should be taken to vest in the Crown the lands and other property of these Companies?

5. Whether it will be possible by Order in Council or by Ordinances passed in the conquered Colonies to vest the lands and other property of such railways in the High Commissioner for South Africa or in the Governors of those Colonies, and to provide that the control of the

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railways shall be placed in the hands of the High Commissioner with power to make regulations having the force of law to deal with the management of the lands and the control of all persons using them? 6. Generally what legal steps are necessary to secure the property in and

the control over the railway lands in the conquered territories?

We have taken the matter into our consideration, and in obedience to your commands have the honour to

Report-

1. Yes, by right of conquest as successors to the late Governments.

2 and 3. So far as lands are concerned we think that the Articles referred

to apply in the case of railways which have vested in the Crown by conquest. This is not so with regard to property other than land, and we think that it would probably be better to deal with all property by Order in Council.

4 and 5. No. It will be necessary to legislate for the purposes mentioned, and such legislation could, in our opinion, be best carried out by Order in Council.

6. It is a question of policy whether such legislation is desirable until the terms given to the shareholders and debenture holders have been settled.

The Right Hon. J. Chamberlain,

&c.

&c

&c.

We are, &c.

R. B. FINLAY. EDWARD CARSON.