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PUBLIC RECORD

OFFICE

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C.O.8

.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

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of matters only of substantial public importance, questions, for example, concerning the administration of justice, such as the continuance or non-continuance in office of a judge of a Colonial Supreme Court holding office during pleasure, which could not be made the subject of judicial appeal. If a special reference were granted in this case, it appears to him that it might be cited as a precedent for allowing a similar reference in other cases where a public officer or his personal representative claimed that he had been wrongfully retired and that his pension was consequently insufficient.

8. Mr. Bonar Law is, therefore, inclined to think that, Mr. Fisher being dead, his petition is not a proper subject for such a special reference, and he does not consider that it should be referred to the Judicial Committee unless he is advised by you to that effect.

9. Mr. Bonar Law will therefore be glad if you will take these papers into consideration and will advise him :--

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(1) Whether Mr. Fisher had an appeal as of right to His Majesty in Council

under Burke's Act;

(2) If so, whether this was actio personalis or whether the right of action

descended to his personal representative;

(3) If his personal representative has no such right of action, whether, in the circumstances, the petition should be transmitted to the Lord President of the Council with a recommendation that it should be referred to the Judicial Committee or not;

(4) Generally upon the subject matter of this letter.

REPORT.

I am, &c.,

H. J. READ,

for the Under-Secretary of State.

(1) We answer this question in the negative.

As Mr. Fisher's appointment was" during pleasure," Burke's Act, 22 Geo. III. c. 75, did not confer on Mr. Fisher any appeal as of right.

(2) Does not arise.

(3) We do not think that there was any reasonable chance of Mr. Fisher suc- ceeding in his contentions, and, as Mr. Fisher has now died, we agree with the view expressed in paragraphs 7 and 8 of the letter of reference dated the 30th June, 1915, that nothing remains of sufficient importance to refer to the Judicial Committee of the Privy Council.

(4) We have nothing to add.

Law Officers' Department,

23rd July, 1915.

EDWARD CARSON. F. E. SMITH.

26863

No. 159.

(RHODESIA.)

COLONIAL OFFICE to LAW OFFICERS.

[Claim of the British South Africa Company for reimbursement of extraordinary expenditure incurred by them in connection with the War.]

GENTLEMEN,

Downing Street,

24th June, 1915. I AM directed by Mr. Secretary Bonar Law to transmit to you correspondence with the British South Africa Company,

B.S.A. Co. to W.0., 16th December, 1914,

To B.S.A. Cō., 21st January, 1915.

B.S.A, Co., 5th February, 1915.

To B.S.A. Co., 2nd March.

R.S.A. Co., 10th June.

as noted in the margin, respecting the claim of the Company for reimbursement

of extraordinary expenditure incurred by them in connection with the war.

2. It will be seen that in the legal opinion enclosed with the Company's letter

of the 10th of June it is contended

(1) That as a Protectorate Rhodesia is free of all responsibility for defence

against foreign aggression:

(2) That under Article 10 of the Company's Charter the Company's obliga-

tion in reference to the preservation of peace and order is solely con- fined to such matters as may arise within the sphere of their opera-

tions:

(3) That it is doubtful whether the Company are legally entitled to use their

funds for the maintenance of any force on active service.

3. As to the first point, I am to say that the question of the Crown's protec torate over Rhodesia is not in dispute. The protectorate is recited in the preamble to the Southern Rhodesia Order in Council of October 20th, 1898: and the position of Northern Rhodesia, under the Order in Council of 4th May, 1911, is similar in this regard and otherwise for the purposes of the present reference. But Mr. Bonar Law is not aware that the fundamental responsibility of a Colony or Protectorate to provide for its own defence has ever been contested, though, no doubt, there co-exists with this responsibility the responsibility of His Majesty's Government to give assistance whenever the Colony or Protectorate is assailed by forces which, unaided, it is not strong enough to repel. The principle of the responsibility of the local administration is recognised by the maintenance in all Colonies and Protec- torates of forces which, however small they may be in any particular instance, have always been regarded as liable to be called upon for defence in case of emergency, and annual returns of naval and military resources are made by all the Colonies and Protectorates. The West African Frontier Force, which is actively co-operating with the Imperial forces in West Africa, is wholly maintained by the contributory Colonies and Protectorates so far as operations based on their borders are concerned. and almost entirely so as regards operations which are based on enemy territory. The whole cost of the normal strength of the King's African Rifles is borne by the contributory Protectorates, whether the force is operating on or beyond their frontiers. The Federated Malay States, again, maintain a special military force- the Malay States Guides—which is paid for from the funds of the Federation: and many more instances might be given.

4. As regards the second and third points I am to say that the Company was empowered by Article 10 of the Charter to establish and maintain a force of police. After the Jameson Raid, in the circumstances set out in the Memorandum, and especially in paragraphs 15 and 16 thereof, printed at page 1 of the Parliamentary paper [C. 8732], it was found necessary to curtail the powers of the Company in this regard so far as the control of the military police forces was concerned. The Order in Council of 20th October, 1898, accordingly provided, inter alia, for the direct control by the High Commissioner for South Africa of the military police forces. and Article 10 of the Charter was amended consequentially by Article 4 of the Supplemental Charter of 1900. The military police forces of the Company which

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