CO885-(15-16) — Page 668

PUBLIC RECORD OFFICE

C.O.

Reference :-

-885

16 PUBLIC RECORD OFFICE, LONDON

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

(2) If it is so competent, whether the draft Order in Council is sufficient for

7793.

11053.

(1) Yes.

this purpose.

REPORT.

I am, &c.,

HENRY LAMBERT.

(2) In our opinion, the draft Order in Council, as altered and initialled by us, is sufficient for this purpose.

Law Officers' Department.

23rd March, 1914.

JOHN SIMON.

STANLEY O. BUCKMASTER.

L

No. 173.

(SOUTH AFRICA: SOUTHERN RHODESIA.)

COLONIAL OFFICE to LAW OFFICERS.

[Reference to the Judicial Committee of the Privy Council of the question of the ownership of unalienated land in Southern Rhodesia.]

GENTLEMEN,

Downing Street, 21st March, 1914.

I AM directed by Mr. Secretary Harcourt to inform you that the question of the ownership of the unoccupied lands in Southern Rhodesia has for some time past formed the subject of controversy in Southern Rhodesia. These lands have always been regarded and dealt with by the British South Africa Company as being its own private property, and it has regularly made grants of land, the validity of which has, it is believed, never been disputed in the Courts. In this connection reference may be made to the Ordinances dealing with land in the enclosed volume of Southern Rhodesia Statute Law.

2. In 1908 the Legislative Council passed a resolution asking His Majesty's Government to settle immediately "the claim of the British South Africa Company to be the private owners of all unalienated land in Southern Rhodesia."

3. His Majesty's Government declined then to decide the question, but the approach of the end of the term of 25 years referred to in Article 33 of the Charter has caused them to change their view. They determined, therefore, that it was neces-

sary to take steps to obtain a decision of To High Commissioner, 1 January, 1914.

the question, and you will see from the To British South Africa Company, 26 January.

enclosed correspondence that Mr. Har- British South Africa Company, 20 February. To British South Africa Company, 28 February. court has proposed, and the Company has To High Commissioner, 14 March, No. 96.

accepted, a reference to the Judicial Com- mittee of the Privy Council. The last enclosure, which contains certain state- ments about the Company's attitude, was shown in draft to the Directors and accepted by them. The Company has not, however, at present, accepted the proposed terms of reference, and it is understood that they feel some anxiety lest they should have to meet not merely a claim to the lands on behalf of the people of Rhodesia but one by the Crown.

Charter, &c. [C. 87731,

Order in Council, 1898 [C. 9138]. Colonial Office Confidential Memorandum, October, 1912. 33634.

4. In this connection I am to enclose the papers noted in the margin, which will show generally the relations of the Company and of the Crown in Southern Rhodesia. I am to observe that His Majesty's Government have at no time advanced any claim to the lands on behalf of the Crown. Their attitude has rather been that of impartiality as between the contending parties. If this attitude is to be maintained, it would seem best that the case against the British South Africa Company should not be presented by the Crown but by counsel on behalf of the Elected Members, as is suggested in Mr. Harcourt's despatch of 14th March. It would, however, Mr. Harcourt apprehends, in any case be necessary that the Crown should be represented before the Judicial Committee at least to watch the proceed- ings, and possibly, if occasion should arise, to intervene on behalf of native rights, and you may think it desirable the Crown should take some more decided action. Mr. Harcourt is unable to say in exactly what form the case against the Company will be put, but I am to enclose, as an example of the sort of argument which is used in Southern Rhodesia, a copy of a pamphlet entitled "The title tangle" by Mr. Barklie, a local lawyer. At the end will be found reprinted the concessions on which the Company's case in part rests. It is not, however, exactly known what the Com- pany's case is, but it is understood to be briefly represented by the formula " Con- cessions plus conquest plus occupation."

5. It is clear that if the concessions vest the soil of the territory to which they relate in the Company as private owners, and if that territory is coextensive with what is now known as Southern Rhodesia, none of the other questions which have been raised need be considered. But, if the concessions vest in the Company only rights of a more limited character, the Judicial Committee will have to determine what has been the effect de jure of the de facto conquest of the territory by the armed forces of the Company, and what are the rights (if any) of the Crown resulting

(1541-2.) Wt. 124-872, 25. 6/14. DB. G. 1.