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to assign lands for native occupation, this does not in itself establish that the Com- pany owns the territory.

What is really needed for the elucidation of this matter is a reasoned statement by the Company of the position which they take up, distinguishing between any claim founded on concessions and any claim based on other grounds.

3. It must be remembered that, when a question of title to property is raised between contesting parties, that party succeeds who has the better title of the two, and if the Company's claim to unalienated land is to be effectively tested, it is essential that it should not be resisted by persons who have no title at all.

We understand that it is proposed to raise and decide the questions now involved by reference to the Judicial Committee under Section 4 of the Act of 1833. This would involve an Order in Council referring the questions, when formulated, to the Committee for hearing and, consideration, in order that the Committee may advise the Crown thereon. It seems to us that, when the questions are so referred, it would be a convenient course for the Judicial Committee to appoint a preliminary hearing to be attended by parties interested in order that directions might then be given by the Committee as to the course to be pursued. At such a hearing the Com- mittee would direct what cases should be prepared, what particulars should be given, and what procedure should be followed. If any facts were found to be in dispute, the Committee would have to decide how the issues of fact were to be determined; see Section 7 of the Act of 1833.

At such a preliminary hearing the British South Africa Company would, of course, appear, and we think the Crown should also be represented. We understand that the Elected Members of the Legislative Council are prepared to instruct counsel to represent their point of view, and their counsel should also be given notice of the preliminary hearing.

"Whether the British South Africa The question might perhaps be as follows: Company under any-and what concessions granted by Lo Bengula (assuming Lo Bengula had power to make them), or under any other-and what title, owns the unalienated land in Southern Rhodesia either (a) in virtue of the administrative and public provisions of its Charter, or (b) independently of such provisions."

We desire to point out that it is within the power of the Crown to refer such question to the Judicial Committee without securing the assent of the Company, but we should hope that the Company would consider that a question so formulated fairly raises the matter to be decided, and, in view of the proposed undertaking by the Crown to be bound by the decision, would join in facilitating such a reference.

JOHN SIMON. STANLEY O. BUCKMASTER.

Law Officers' Department,

R

16483

No. 174.

(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 unulienated land in Southern Rhodesia.]

GENTLEMEN,

Downing Street, 9 May, 1914. WITH reference to the letter from this Department of the 21st March, regard- ing the proposed reference to the Judicial Committee of the Privy Council of the question of the ownership of the unalienated land in Southern Rhodesia, I am directed by Mr. Secretary Harcourt to transmit to you a copy of a letter from Mr. F. R. Thompson, who took part in the original negotiations with Lo Bengula which led to the grant of the concession to Mr. Rudd.

2. It will be observed that Mr. Thompson raises the question of the validity of the concessions granted by Lo Bengula and of his power to grant them, and proposes that he should give evidence on this subject. If this were conceded and evidence (especially native evidence) of this class were admitted, endless delay would ensue, and Mr. Harcourt feels that it would be very undesirable that the question of the validity of these concessions, which have either been in fact recognised by His Majesty's Government (as was the case with the Rudd concession, see page 224 of [C. 5918], also Section 5 on page 225) or have been formally approved by His Majesty's Government (as was the case with the Lippert concession, see [C. 7171] page 9-copies of both papers are enclosed), should be raised. He considers, there- fore, that, so far as the claim of the British South Africa Company rests upon the concessions granted by Lo Bengula, the question before the Judicial Committee should be confined to the legal construction of the documents concerned.

3. Mr. Harcourt would be glad if you would advise whether the terms of reference to the Privy Council can be drawn so as to exclude from the discussion any question as to the validity of these concessions and confine it to their legal construc- tion, and, if not, whether this end can be achieved by any other and, if so, what

means.

I am, &c..

HENRY LAMBERT.

15th May, 1914.

PUBLIC RECORD OFFICE

Reference :-

TTIC.O.8

.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

23071

REPORT.

We still think that the question as formulated in our report of May 15th* best defines the issue, but the issue can be expressed in other words if this is preferred. Basing the reference upon the resolutions, the question would run as follows:-

1. Whether the ownership of unalienated land of Southern Rhodesia is vested in, or has been acquired by, the British South Africa Company as their commercial

or private property, or whether such powers of taking possession of, &c.

2. Whether, if the Company have acquired any ownership in the said land. such ownership is so vested in them as an administrative and public asset only, and whether the Company, apart from their capacity as administrators of Southern Rhodesia, have any dominion or estate or title to the said land or to any moneys or revenues derived therefrom.

3. Whether, on the Company ceasing to be administrators of Southern Rhodesia, any such land as may be unalienated at such time will be and remain the property of the Government of the territory which takes the place of the Company. and whether the possession and administration of such land will pass to such Govern ment as public domain.

We have already pointed out that it is for the Judicial Committee to give directions as to procedure at the hearing; strictly speaking, the hearing is not an appeal, for there is no decision to appeal from. We do not ourselves entirely appre ciate the reason for the view expressed in the Colonial Office despatch of March

• Law Officers' Opinions, Vol. VII., No. 173.

(1498-2) We. 124-872. 25, 7,14 D&8. G. 1.

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