CO885-(15-16) — Page 431

33002

No. 35A.

(SIERRA LEONE.)

LAW OFFICERS to FOREIGN OFFICE.

[Validity of certain concessions granted by the Government of Liberia and the effect thereon of the Anglo-Liberian Treaty of 1848.]

SIR.

Royal Courts of Justice, June 25, 1906. WE were honoured with your commands, signified to us by Sir Eric Barrington in his letter of the 24th April last, stating that he was directed by you to transmit to us the papers in connection with the validity of certain Con- cussions granted by the Government of the Republic of Liberia, and the effect thereon of the Anglo-Liberian Treaty of 1848, and to request that we would favour you with our opinion as to whether His Majesty's Government could, consistently with the attitude taken up by them with respect to the grant of exclusive Concessions in the Congo Free State and French Congo, maintain that the above-mentioned mining rights, as granted to the Liberian Development Company or the Rubber Concession granted to the Monrovian Rubber Company, do not constitute au infringement of (1), the rights of other British subjects under the Anglo-Liberian Treaty of 1848; and (2), the rights of the subjects of other foreign Powers having similar Treaties, or the right to the most-favoured-nation treatment.

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

Report-

That, in our opinion, there is very little difference in point of principle between the Concessions resisted by the British Government in the case of the Congo and those which are now under review in the case of Liberia. No copy of the Congolese Concession is before us, but we may gather its purport from the references to it in the cases laid before the ex-Law Officers, and their opinions thereon. From these documents it appears that the French Government, by Presidential Decree of the 28th March, 1899, declared that all vacant and ownerless land in the Congo belonged to the State domain. Having thus assumed a right of property in these unoccupied lands, the French Government proceeded to grant to its concessionnaires the jouissance et exploitation" of the rubber in the districts named. The interest thus conferred indicates a restricted right of property or possession rather than one merely of trade or work. It is by virtue of the same right of property that the Liberian Government has granted the Concession now before us. It clearly claims the land on which the Concession is to operate as State domain, and purports to confer an interest founded upon the proprietary rights. We think that His Majesty's Government may lay themselves open to a charge of inconsistency in reprobating such Concessions on the Congo, while approbating them in Liberia.

Generally, the legality of these Concessions depends on whether they are grants of property or grants of a trade monopoly.

The real difficulty, however, in the case turns on the question as to whether the subject matter of the Concession-namely, minerals or indiarubber-over vast tracts of unoccupied land can be called property in a real and substantial sense. So far as minerals are concerned, it is quite in accordance with the idea of civilized States that they should be regarded as absolute property of the State, and therefore capable of being given, in whole or in part, to any person on any terms the State may think fit, without infringing the provisions of the Treaty against purely trade monopolies. It is not so easy to bring the case of rubber under this principle, although it is difficult to draw any legal distinction between the vegetable and the mineral products of lands which are the property of the State. The areas from which the rubber is collected are apparently not capable of being reduced into possession in the same way as ordinary forms of property, and the rubber is probably collected by the natives as a natural product belonging to no one. Moreover, it seems to constitute practically the only article which the natives have to barter, and therefore an

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