(c) crown copyright
Catalogue Reference:CAB/24/159
Image Reference:0010
Printed for the Cabinet.
SECRET.
C P .
148,
CABINET.
RHODESIA.
MEMORANDUM BY THE SECRETARY OF STATE FOE THE COLONIES.
THE position in regard to Rhodesia has reached a stage at which it is necessary
to bring certain matters before the Cabinet. There are various problems concerning
both Southern and Northern Rhodesia which require an early decision, and, though
they are to some extent connected, it will be convenient to explain the position with
regard to each territory separately.
A.—Southern Rhodesia.
A referendum which was held last October on the question whether the territory
favoured entry into the Union or the grant of Responsible Government on the terms
embodied in the Letters Patent which had previously been prepared, resulted in a vote
in favour of the latter alternative, and it was announced in the House of Commons a
few days ago that His Majesty's Government propose to give effect to the result of the
referendum by granting Responsible Government at the earliest practicable date.
The Elected Members of the Legislative Council in Southern Rhodesia are pressing
that this should take place within the next few months, but difficulty has been found
in fixing the date owing to the opposition of the British South Africa Company to the
principles on which the draft Letters Patent are based as regards the reimbursement
of their past administrative deficits.
The position on this point is briefly this : As a result of the reference which was
made to the Judicial Committee of the Privy Council a few years ago as to the
ownership of the unalienated lands in Southern Rhodesia, it was decided that the
lands belong to the Crown, and that as a consequence the Company, who were
regarded as having acted as agents for the Crown, would be entitled on the termination
of their administration to the reimbursement of their administrative deficits either out
of the proceeds of further sales of lands, or, if the Crown should grant away the lands
or proceeds to others, from public funds. A Commission appointed in 1919, of which
Lord Cave was Chairman, determined the amount of the deficits at the 31st March,
1918 at about £4,435,000, subject to an undetermined deduction in respect of certain
lands estimated by the Company at £384,000. This Commission also decided that
interest which the Company claimed was not payable. The amount of the deficits as
on the 31st March, .1922 (neglecting the deduction in respect of the lands), is £3,780,000;
in addition, the Company is entitled under the Charter to compensation in respect of
public works and buildings used for administrative purposes which may be taken over
for public purposes by the new administration. The present value of the administrative
works and buildings is about £800,000.
The arrangement provided for in the draft Letters Patent is that the unalienated
lands should be controlled by a Crown Land Agent, and that the proceeds of land sales
and other land revenues shall be paid to the British South Africa Company until the
debt due to the Company is extinguished. This, we are advised, is in accordance with
the judgment of the Privy Council, and, though it is obviously fraught with grave
administrative difficulties, it was felt when the Letters Patent were prepared that it
was the only course possible if His Majesty's Government were to avoid having to pay
in cash the sum due to the Company.
The arrangement is, however, objected to by the Company as inconsistent with
their rights, and they have presented a Petition of Right claiming that they are
[9649] '
'
B 2
entitled to payment in cash, on the termination of their administration, of the total
administrative deficits at that date with interest year by year from the 31st March,
1918. There are also alternative claims, one of which is that, failing repayment in
cash, the authority appointed to deal with the lands must be made directly responsible
to the Company.
'The Company are, I understand, advised in this matter by Sir John Simon, but
their contentions were rejected by Lord Hewart when he was Attorney-General, and
are also considered by the present Attorney-General to be without foundation.
Sir Douglas Hogg admits however that Clause 48 of the Letters Patent (which
relates to the question of the unalienated lands and the reimbursement of the
Company's deficits) is open to argument, and has advised that it should be held in
abeyance pending the hearing of the Petition of Right.
Shortly after I came to the Colonial Office and the result of the referendum was
known, I received a letter from the Company, which is attached to this paper,* setting­
out their point of view and expressing the hope that a solution of the problem might
be arrived at without litigation.
After some discussion with the Treasury the
Company were invited to submit semi-officially and " without prejudice" any
suggestions they might wish to make for a settlement. This they have now done in a
confidential memorandum attached,! the proposals in which cover both Southern and
Northern Rhodesia.
It is clear that, from the point of view of the Colonial Office, there would be
definite advantages in an arrangement which would enable His Majesty's Government
to hand over the unalienated lands and the land revenues to the new Administration,
free of the Company's charge upon them. There is a grave possibility of considerable
friction and perhaps of further litigation arising out of the working of Clause 48 of
the draft, Letters Patent, since the Company will be always contending that the Crown
Land Agent must act so as to obtain the largest possible sums from the lands in the
shortest possible time. It is obvious from the political point of view that the Crown
would find itself in an impossible position if it were bound to dispose of the lands
without regard to the public interests of the territory. Embarrassment would also
arise if in collecting payments it could not deal leniently with genuine cases of
hardship. At present, for instance, the Native Commissioners collect rent from the
natives living outside the reserves on the unalienated lands, and it is the custom to
allow considerable indulgence to the natives in times of necessity when their food
supplies are short ; but when the Company give up the administration and are
dependent upon the land receipts for their reimbursement, they cannot be expected
to have much regard to administrative conveniences of this kind, and the Crown Land
Agent will be constantly pressed to exact payment from the natives in full.
The Company contend that, even if their general claim to reimbursement in cash
of the administrative deficits fail, they are entitled on the establishment of the new
Government to payment in cash for the movable assets of the Administration, the
surplus of debtor over creditor balances, and the value of sites occupied by public
works and buildings and lands reserved for administrative and public purposes. The
existence of these claims, particularly that in regard to the movable assets, may prove
a difficult obstacle to surmount if the new Government is to be set up before, they are
disposed of.
So long as the Company stood out for their full claims as embodied in the Petition
of Right, including the claim to interest which has been rejected by the Cave
Commission, no settlement seemed possible. But their present proposals appear to me
to indicate a more accommodating spirit, and I think that further negotiations are
desirable, it will be observed that the Company put the total sum (including interest
from the 31st March, 1918) which they claim to be due to them at £5,062,890, and
that they are willing to accept in cash or its equivalent the sum of £3,750,000. This
should be susceptible of further reduction, and I am disposed to think that a
settlement of the matter at a figure of 3 or 3J millions would not be an unreasonable
one for all parties. The Union Government, who made a very generous ofier to the
Company, were prepared, if Southern Rhodesia had gone into the Union, to pay
.£6,215,000 with interest from the 31st March, 1922, for the same rights and assets,
plus the Company's interests in the railways. It must be remembered that if the
Company should succeed in their Petition of Right His Majesty's Government would
have to pay the full sum claimed by the Company, and merely recover by degrees
from the land receipts as they accrue. The administrative difficulties of such an
arrangement are obvious.
* Letter of November 23, 1922/58197.
t Memorandum of February 26, 1923/13354.
entitled to payment in cash, on the termination of their administration, of the total
administrative deficits at that date with interest year by year from the 31st March,
1918. There are also alternative claims, one of which is that, failing repayment in
cash, the authority appointed to deal with the lands must be made directly responsible
to the Company.
The Company are, I understand, advised in this matter by Sir John Simon, but
their contentions were rejected by Lord Hewart when he was'Attorney-General, and
are also considered by the present Attorney-General to be without foundation.
Sir Douglas Hogg admits however that Clause 48 of the Letters Patent (which
relates to the question of the unalienated lands and the reimbursement of the
Company's deficits) is open to argument, and has advised that it should be held in
abeyance pending the hearing of the Petition of Right.
Shortly after I came to the Colonial Office and the result of the referendum was
known, I received a letter from the Company, which is attached to this paper,* setting­
out their point of view and expressing the hope that a solution of the problem might
be arrived at without litigation.
After some discussion with the Treasury the
Company were invited to submit semi-officially and " without prejudice" any
suggestions they might wish to make for a settlement. This they have now done in a
confidential memorandum attached,t the proposals in which cover both Southern and
Northern Rhodesia.
It is clear that, from the point of view of the Colonial Office, there would be
definite advantages in an arrangement which would enable His Majesty's Government
to hand over the unalienated lands and the land revenues to the new Administration
free of the Company's charge upon them. There is a grave possibility of considerable
friction and perhaps of further litigation arising out of the working of Clause 48 of
the draft Letters Patent, since the Company will be always contending that the Crown
Land Agent must act so as to obtain the largest possible sums from the lands in the
shortest possible time. It is obvious from the political point of view that the Crown
would find itself in an impossible position if it were bound to dispose of the lands
without regard to the public interests of the territory. Embarrassment would also
arise if in collecting payments it could not deal leniently with genuine cases of
hardship. At present, for instance, the Native Commissioners collect rent from the
natives living outside the reserves on the unalienated lands, and it is the custom to
allow considerable indulgence to the natives in times of necessity when their food
supplies are short; but when the Company give up the administration and are
dependent upon the land receipts for their reimbursement, they cannot be expected
to have much regard to administrative conveniences of this kind, and the Crown Land
Agent will be constantly pressed to exact payment from the natives in full.
The Company contend that, even if their general claim to reimbursement in cash
of the administrative deficits fail, they are entitled on the establishment of the new
Government to payment in cash for the movable assets of the Administration, the
surplus of debtor over creditor balances, and the value of sites occupied by public
works and buildings and lands reserved for administrative and public purposes. The
existence of these claims, particularly that in regard to the movable assets, may prove
a difficult obstacle to surmount if the new Government is to be set up before, they are
disposed of.
So long as the Company stood out for their full claims as embodied in the Petition
of Right, including the claim to interest which has been rejected by the Cave
Commission, no settlement seemed possible. But their present proposals appear to me
to indicate a more accommodating spirit, and I think that further negotiations are
desirable. It will be observed that the Company put the total sum (including interest
from the 31st March, 1918) which they claim to be due to them at £5,062,890 and
that they are willing to accept in cash or its equivalent the sum of £3,750,000. This
should be susceptible of further reduction, and I am disposed to think that a
settlement of the matter at a figure of 3 or 3J millions would not be an unreasonable
one for all parties. The Union Government, who made a very generous offer to the
Company, were prepared, if Southern Rhodesia had gone into the Union, to pay
,£b',215,000 with interest from the 31st March, 1922, for the same rights and assets,
plus the Company's interests in the railways. It must be remembered that if the
Company should succeed in their Petition of Right His Majesty's Government would
have to pay the full sum claimed by the Company, and merely recover by degrees
from the land receipts as they accrue. The administrative difficulties of such an
arrangement are obvious.
v
* Letter of November 23, 1922/58197.
.
t Memorandum of February 26, 1923/13354.
Iclo not suggest that His Majesty's Government should pay off the Company and
hand over the lands to the new Administration free, but I think it, is very likely that
the Elected Members would undertake to raise a loan to meet, at any rate, a very
considerable part of the expenditure which might be necessary for this purpose,
provided that the amount is at all within their compass, having regard to the limited
resources of the territory. At present the position is that the new Administration will,
in any case, have to raise a loan of about £1,100,000 to repay­
(a.) The advances which His Majesty'? Government have to, make for the purchase
from the Oompanv of public works and buildings, estimated at about
£800,000;
(6.) The loan of £150,000 which was made to the Administration last year for
public works.
(o.) The further loan of £150,000, which it is understood that the Company will
apply for this year.
If the new Administration can acquire the Crown lands, they will be able to bear
the charges of a larger loan, but not, I think, one of more than £2,51)0,000 in all.
If we deduct from this the sum of £300,000, repayable to His Majesty's Government
for the loan advances (6) and (c), this would leave a sum of £2,200,000 for payment
to the Company. On the basis of a total payment of 3$ millions to the Company
being necessary, it will appear that assistance from His Majesty's Government to the
extent of £1,050,000 would be necessary to make up that figure ; and it would, I think,
be reasonable for His Majesty'? Government to provide this. The assistance necessary
could, in the main, be provided by His Majesty's Government undertaking to transfer
free of cost the works and buildings (estimated above at £800,000); and the further
sum of £250,000 could be regarded as covering roughly the value of the movable
assets which the new administration will require.
When the draft Letters Patent were under consideration, in the autumn of 1921
the Delegation of the Elected Members who came to this country urged strongly that
the public works and buildings should he handed over to them free, and this cannot
be regarded as an unreasonable request. In the course of a Memorandum on the
subject, the Chairman of the Delegation, Sir Charles Coghlan, stated :—
" I n all other cases that the Delegation is aware of, such charges as the
Imperial Treasury has incurred directly in providing buildings and works of
the above nature in Imperial Dependencies, the buildings have been handed over,
free of charge, to the incoming Government when the particular Dependency
became annexed to a neighbouring Colony or received the grant of its own
Constitution, and was thereby placed in. a position to relieve the Imperial Govern­
nieiit of further responsibility. This has happened in the case of the Cape
Colony and of Natal and on the annexation to the former of the Colonies of
Griqualand West and British Bechuanaland. Even in the case of the Union
of South Africa it is, we understand, the fact that buildings therein connected
with the obligations of Imperial Defence, and costing some £2,000,000, have
recently been handed over to the Union Government at about one-tenth of their
cost, in consideration of the latter undertaking the duties of defence heretofore
devolving upon the Imperial Government. Southern Rhodesia proposes in like
manner, on the grant of' the Constitution, to undertake the usual obligations
connected with Responsible Government, and so permanently relieve the Imperial
taxpayer of any further outlay in this connection."
Mr. Churchill, however, was at that time strongly in favour of a policy of entry
into the Union, and was not prepared to consider a request which might, have the effect
of weighting the scales in favour of Responsible Government. Now that the policy of
entry into the'Union must be regarded, for the time being, as rejected, it would be
good policy to give the new Administration tinder Responsible Government as fair a
start as possible. ""
- .'
My proposal therefore is that the Colonial Office, in consultation with the Treasury,
should'proceed to negotiate with the British South Africa Company and the repre­
sentatives of the Elected Members on the basis that, if a settlement were possible
which would place the hew Government in possession of the unalienated lands, the
land revenues and other assets, free of all claims from the Company, His Majesty's
Government would assist in the. matter, to the extent indicated above, viz., approxi­
mately £1,050,000.
" [9649]
B3
i
1
I t would be my hope that this sum would be sufficient, but the Directors of
the Company are admittedly in a difficult position vis-a-vis
their shareholders, and
their power to make concessions is necessarily limited, and I therefore cannot say that
they will not hold out for more than £3,250,000. ' 0 n the other hand, the Elected
Members may not be prepared to find as much as £2,200,000. It is desirable therefore
to leave some margin in order to avoid letting the negotiations break down over what
may be a comparatively small sum, and it may consequently be necessary for His
Majesty's Government to be prepared to contribute up to £1,350,000.
B.-Northern Rhodesia.
Northern Rhodesia is a territory with a native population of about 1,000,000 and
with a white population of 3,600, and, although the present Administrator is also the
Administrator of Southern Rhodesia, the administration of the territory is distinct
from that of Southern Rhodesia, and the proposal for the grant of self-government to
Southern Rhodesia does not, of course, extend to it. T h e administration, however,
involves the Company in a yearly loss of about £100,000, and they are naturally
unwilling to carry on in Northern Rhodesia once their responsibility for Southern
Rhodesia is terminated.
The Company s Charter of 1889 provided that at the end of twenty-five years, and
at the end of every succeeding period of ten years, the Crown would have the right to
add to, alter or repeal any of the provisions of the Charter relating to administrative
and public matters. By the Supplemental Charter of 1915 this provision was amended
so as to enable Responsible Government to be established in Southern Rhodesia at any
time after the 29th October, 1914. The administrative provisions of the Charter, so
far as Northern Rhodesia is concerned, will come up for review in October 1924,
unless indeed the Company's administration is terminated earlier with their consent.
As a result of the judgmeut of the Privy Council on the Company's position in
Southern Rhodesia, the question of the Company's rights in Northern Rhodesia was
naturally raised, and in June 1920 the Advisory Council representing the white
settlers in Northern Rhodesia adopted a resolution advising that the question of the
ownership of the lands and mineral rights in Northern Rhodesia should be submitted
without delay to the Judicial Committee of the Privy Council. On receipt of the
resolution it was referred to the British South Africa Company for their observations,
and they replied in a letter setting forth their claims, which were that.they were the
owners of the mineral rights throughout Northern Rhodesia and of the unalienated
lands in part of North-Western Rhodesia, and further that when their administration is
determined they will be entitled to be reimbursed by the Crown'for the administrative
deficits, except a small portion incurred in North-Western Rhodesia prior to 1911.
A separate memorandum giving full details of the position with regard to the
Company's claims is attached.' '
The Committee appointed by Mr. Churchill early in 1921, under the chairmanship
of Earl Buxton, to report on the political futures of the two Rhodesias, was asked to
consider in regard to Northern Rhodesia, amongst other points, the question "whether
it is possible to terminate Chartered Government pending the settlement of these
questions (i.e., the Company's claim to land, minerals and the administrative deficits),
and if not what further constitutional development is possible in the meantime ? " The
Committee's advice was to the effect that the claims of the Company so far as they
were open to doubt, should be referred to the Privy Council, whose decision should be
obtained as early as possible and before Chartered Government, comes to an end in
Southern Rhodesia, so that the. Company's administration may end simultaneously in
both Southern and Northern Rhodesia.
Mr. Churchill informed the High Commissioner that His Majestys Government
accepted the report of the Committee, and it has therefore been generally assumed in
Northern Rhodesia that the Company's administration will shortly be terminated. If
Southern Rhodesia gets Responsible Government in say October 1923, it would in fact
hardly be possible to terminate the Company's administration of Northern Rhodesia at
the same time. But it would be difficult to continue the Oompany's administration
after October 1924, and there can be no question in any case of doing so for so long a
period as ten years.
Since the Privy Council judgment in the Southern Rhodesia land case, the
Company have adopted the same waiting policy in Northern Rhodesia as in Southern
Rhodesia, and have cut down the administrative expenditure as far as possible. . Th.py
have also found it necessary to impose additional taxation in the shape of an income
8
,
* Memorandum of January 19, 1923/3412.
tax, though even so the administration of the territory has involved during recent
years deficits ranging from about £60,000 to £130,000 a year. These measures have
naturally been unpopular with the settlers, and a condition of affairs has now been
reached in which both the Company and the settlers are anxious that the Company's
administration should be terminated as soon as possible. The Advisory Council which
was set up during the war has not been a success in respect of facilitating relations
between the Company and the settlers. It has protested twice against the Income Tax,
and the necessary legislation has had to be enacted over its head. The protest which
has been made against the legislation enacting the tax for the current financial year
was apparently intended in the main as a demonstration against the existing regime,
and though the enactment of the legislation was received quietly, the members of the
Advisory Council have issued a letter suggesting that " it will be a waste of time and
energy for the Council to meet again until a change has been made in the present
system."
As indicating the general views of the settlers in Northern Rhodesia.it m a y b e
mentioned that the Resident Commissioner of Rhodesia, in commenting on the result
of the elections for the Advisory Council held in February 1922, stated that " as regards
the political, aspirations of the settlers in Northern Rhodesia at the moment, it is ouly
safe to say that they desire (1) the determination of the British South Africa Company's
administration at the earliest possible moment and (2) no amalgamation of their territory
with the Union of South Africa."
Recent correspondence shows also that the missionaries, while fully realising the
excellence of the Company's native administration, appear to feel that the interests of
the natives, particularly in matters relating to the land, would be best served by
terminating the Company's rule.
It is clear that no adaptation of the present regime can make it work more
smoothly. The Company have rejected the proposal of the Buxton Committee for the
establishment of a Legislative Council, and it is doubtful how far, if they approved it,
its adoption would afford any satisfaction to the settlers, since, unlike the position
which has existed for some time in Southern Rhodesia, the elected members would
necessarily have to be in a minority.
It appears, therefore, that the termination of the Company's administration in
Northern Rhodesia before very long must be regarded as inevitable. Although the
Buxton Committee thought that a reference to the Privy Council with regard to the
Company's claims would be necessary before this could take place, there would be
definite advantages in avoiding such a reference by means of an arrangement with them
if feasible. The proposed reference, apart from involving long and difficult litigation,
would raise awkward questions as regards the position in Nyasaland, and it is not of
course perfectly clear that His Majesty's Government would not find themselves
saddled with the past administrative deficits, which amount now to over l j millions, as
in the case of Southern Rhodesia. The Law Officers, indeed, when the point was put
to them in 1920, regarded it as one of doubt and difficulty, although on the whole they
thought that the Company's claim was not well founded.
As regards the Oompany's claims to lands and minerals, the present view of-the
Colonial Office is that it is difficult to contest the Company's claim to the minerals, but
that their claim to the lands, though this also has a certain strength, could hardly be.
admitted without a decision of the Courts. As against these claims His Majestys
Government have a claim against the Company in respect of such part of the sums
which have been advanced to them for extraordinary military expenditure arising out
of the late war, as may be regarded as attributable to the defence of Rhodesia. It has
been thought in the past that a settlement of this claim, which would make the
Company responsible for the cost of the operations up to January 1916-amounting to
a little under a quarter of a million—could be accepted ; and His Majestys Govern­
ment had agreed to waive the claim entirely if the result of the referendum in Southern
Rhodesia had been in favour of entry into the Union.
It is therefore thought that the main lines which a fair bargain with the Company
might follow is that His Majesty's Government, in consideration of. the Company
waiving their claims to the administrative deficits, and agreeing to a satisfactory settle­
ment in respect of the land covered by the Lewanika Concessions in Northern Rhodesia,
should consent to waive their claim in. respect of the war expenditure and to..take over
the administration of the territory at an early date. The Company's, proposals for a
settlement in Northern Rhodesia are set out in the memorandum of the 26th February.
They appear to afford a basis for further negotiations on the above lines, providing
that the Cabinet agree that His Majesty's Government should undertake to relieve the
Company of the administration of Northern Rhodesia. Although this may involve the
Treasury in having to hnd grants-in-aid, it is not impossible that a more economical
system of administration may be brought about in the future by a partition of the
territory which would bring the eastern portion into Nyasaland ; but apart from this it
seems difficult, from a Parliamentary point of view, to contemplate compelling the
Company against their will to administer a territory in which the white settlers also
are urgently demanding the termination of their administration.
DEVONSHIRE.
Colonial Office,
March 13, 1923.
ANNEXTJRES 1-3 (separately attached).
A N N M W E 4.
13354/23. Secret.
M
Urgent.
Sir, .
Downing Street, March .1.6, 1923.
It will be within the knowledge of the Lords Commissioners of the Treasury, both
from recent official correspondence and from semi-official conferences, that the time
has come when it is necessary for His Majesty's Government to take important
decisions with regard to the problems which have arisen concerning Southern and
Northern Rhodesia.
2. I am now to enclose, for their Lordships' information, a draft Memorandum
which the Duke of Devonshire has had prepared for submission, if necessary, to the
Cabinet. It will be observed that the policy outlined in the draft Memorandum
involves His Majesty? Government entering into negotiations with the British South
Africa Company with a view to a settlement, if possible, of the Company's claims in
regard to both Southern and Northern Rhodesia ; and that if such a settlement is to be
attained it will he necessary, in the view of the Secretary of State, to give certain
financial assistance from Imperial funds as regards Southern Rhodesia, as well as to
relieve the Company of the administration of Northern Rhodesia—a course which will
require a limited amount of immediate capital expenditure, and also, in all probability,
an annual grant-in-aid.
3. The Secretary of State would be glad to know whether their Lordships are
prepared to concur generally in the proposals submitted in the draft Memorandum. If
so, it may be possible for the Secretary of State to proceed with the negotiations with
the Company, in consultation with their Lordships. He would propose, however, in
view of the important political and Parliamentary considerations involved, that, in any
case, the matter should be brought to the notice of the Cabinet.
4. The Duke of Devonshire would be glad if he could have a very early reply to
this letter, particularly. in view of the need for expedition in consequence of the
pending introduction of Responsible Government in Southern Rhodesia.
I am, &c.
(Signed)
J. MASTERTON SMITH.
The Secretary, Treasury.
S. 15650/2.
V"-/
Sir,
Treasury Chambers, March 29, 1.923.
The Lords Commissioners of His Majesty's Treasury have had before them your
letter of the 16th instant respecting certain questions which have arisen concerning
Southern and Northern Rhodesia.
My Lords agree with the Duke of Devonshire that it would be desirable to enter
upon negotiations with the British South Africa Company with a view to reaching a
solution of the outstanding problems in regard to these territories.
As regards Southern Rhodesia, they understand that his Grace is advised, both by
the present and the late Attorney-General, that the claim of the Company (which they
are putting forward by Petition of Right) to be reimbursed the administrative deficits
in cash instead of as payments are received from the sale of the unalienated lands
could not be sustained, and consequently the object of the Government shuuld be, in
concert with Southern Rhodesia, to settle with the Company for a sum as near the
Company of the administration of Northern Rhodesia. Although this may involve the
Treasury in having to find grants-in-aid, it is not impossible that a more economical
system of administration may be brought about in the future by a partition of the
territory which would bring the eastern portion into Nyasaland ; but apart from this it
seems difficult, from a Parliamentary point of view, to contemplate compelling the
Company against their will to administer a territory in which the white settlers also
are urgently demanding the termination of their administration.
DEVONSHIRE.
Colonial Office,
March 13, 1923.
ANNEXUEES 1-3 (separately attached).
13354/23.
Urgent.
Secret.
^
Sir,
Downing Street, March .1.6, 1923.
It will be within the knowledge of the Lords Commissioners of the Treasury, both
from recent official correspondence and from semi-official conferences, that the time
has come when it is necessary for His Majesty's Government to take important
decisions with regard to the problems which have arisen concerning Southern and
Northern Rhodesia.
2. I am now to enclose, for their Lordships' information, a draft Memorandum
which the Duke of Devonshire has had prepared for submission, if necessary, to the
Cabinet. It will be observed that the policy outlined in the draft Memorandum
involves His Majesty's Government entering into negotiations with the British South
Africa Company with a view to a settlement, if possible, of the Company's claims in
regard to both Southern and Northern Rhodesia ; and that if such a settlement is to be
attained it will be necessary, in the view of the Secretary of State, to give certain
financial assistance from Imperial funds as regards Southern Rhodesia, as well as to
relieve the Company of the administration of Northern Rhodesia-a course which will
require a limited amount of immediate capital expenditure, and also, in all probability,
an annual grant-in-aid.
3. The Secretary of State would be glad to know whether their Lordships are
prepared to concur generally in the proposals submitted in the draft Memorandum. If
so, it may be possible for the Secretary of State to proceed with the negotiations with
the Company, in consultation with their Lordships. He would propose, however, in
view of the important political and Parliamentary considerations involved, that, in any
case, the matter should be brought to the notice of the Cabinet.
4. The Duke of Devonshire would be glad if he could have a very early reply to
this letter, particularly in view of the need for expedition in consequence of the
pending introduction of Responsible Government in Southern Rhodesia.
I am, &c.
J. MASTERTON SMITH.
(Signed)
The Secretary, Treasury.
S. 15650/2.
Sir,
(
b , )
Treasury Chambers, Marcli 29, 1923.
The Lords Commissioners of His Majesty's Treasury have had before them your
letter of the 16th instant respecting certain questions which have arisen concerning
Southern and Northern Rhodesia.
My Lords agree with the Duke of Devonshire that it would be desirable to enter
upon negotiations with the British South Africa Company with a view to reaching a
solution of the outstanding problems in regard to these territories.
As regards Southern Rhodesia, they understand that his Grace is advised, both by
the present and the late Attorney-General, that the claim of the Company (which they
are putting forward by Petition of Right) to be reimbursed the administrative deficits
in cash instead of as payments are received from the sale of the unalienated lands
could not be sustained, and consequently the object of the Government should be, m
concert with Southern Rhodesia, to settle with the Company for a sum as near the
computed present value of the debt calculated on the rate of receipts from the sale of
unalienated lands as can be reached in negotiation (plus the value of the movable
assets). It is possible that it might be found that the Company would be prepared to
accept a cash annuity in lieu of a fixed amount from the revenues of Southern Rhodesia,
which would, in that event, receive the proceeds of the sale of lands.
My Lords note that his Grace suggests the raising of a loan by Southern Rhodesia,
when' constituted as a colony, up to an amount not exceeding £2% million, which
would be applicable in liquidation of the sum payable to the Company, but that he
contemplates that any excess payment to the Company over £2£ million would be
provided from the British Exchequer as a free grant, and in particular that a sum
of £800,000, payable to the Company in respect of the buildings and movable assets
required for the administration of Southern Rhodesia, should be found by the British
taxpayer as a free gift to the colony. My Lords demur to the suggestion that it is
incumbent on the British taxpayer to accept as a final charge the cost of these assets,
and they do not think that the cases quoted are in fact analogous. In the case of the
Union of South Africa, for instance, the Union was assuming the enth'e cost of its land
defences and Great Britain was relieved' of the cost of maintaining troops which, before
the war, had numbered 7,000 in South Africa; and in any case Southern Rhodesia is
in a unique position, as my Lcrds understand, in that it is being endowed at its
inception with the entire value of the unalienated lands in its vast territories—an asset
which in the long run should prove to be greatly more valuable than the total of the
sums which now fall to be paid to the Company. Although, therefore, my Lords do
not wholly exclude the possibility of it being necessary to find from Votes of Parliament
a sum additional to that which, will be covered by the loan to be raised by Southern
Rhodesia, they think that the case for finding this sum as a loan only is a strong one,
and in any event they trust that it will be substantially less than the amount indicated
in the Memorandum.
As regards Northern Rhodesia, my Lords are much struck by the indeterminate
character of the position there. The Company claim the land, minerals and the
administrative deficits, and both the Company and the white settlers are anxious that
the administration by the Company—-which involves the latter in a yearly loss of
£100,000 - should be terminated at an early date. Tt seems to be admitted, however, '
that it is impossible that the cessation of the Company's administration in Northern
Rhodesia should synchronise with that in Southern Rhodesia, and my Lords think that
there is something to be said for treating the problems of Southern and Northern
Rhodesia as separate questions and deferring the latter until it is more ripe for
settlement, and in particular until some decision has been reached as to the ownership
of the unalienated lands. The suggestion that agreement might be reached upon the
basis of His Majesty's Government relieving the Company of administration, which is
likely to involve the taxpayer in a charge for Grant-in-Aid of not less, than £100,000
per annum, and. waiving the claim in respect of war expenditure in Northern Rhodesia,
appears to them to be rather one-sided. Although, therefore, my Lords will not object
to the Colonial Office, in consultation with this Department, entering into negotiations
with the Company for a settlement simultaneously of the Southern and Northern
Rhodesia problems, they are still disposed to anticipate that it may be found necessary
to deal with them separately.
I am, &c.
(Signed)
R. S. MEIKLEJOHN.
The Under-Secretary of State,
Colonial Office.
11)166/23.
(c-)
*
Downing Street, April 18, 1923.
I am directed by the Duke of Devonshire to acknowledge the receipt of your
letter (S. .15650/2) of the 29th March, from which he lias learnt with satisfaction that
v TJ ^ ^
" '
of the Treasury agree to his entering upon negotiations with
the British South Africa Company with a view to reaching a solution of the outstanding
problems in regard to Southern and Northern Rhodesia. " The Secretary of State woidd
proposetq take action accordingly at once.
,, ^- The Duke of Devonshire notes that their Lordships suggest that the Northern
Rhodesia problems should be reserved for separate and later treatment, but it does not
appear to him that this course is feasible or desirable. Apart from the fact that the
Company s proposals have been put forward as a single scheme for a complete and
Slr
-
0
S
o m n
s s
o n e r s
comprehensive settlement of all questions outstanding between the Crown and
Company, the course suggested would involve proceeding with the reference to-the
Judicial Committee of the Privy Council, as being the only means, apart from
negotiation, of reaching a decision as to the ownership of the unalienated lands and
other outstanding issues. This, as explained in the Secretary of State's Memorandum
it was hoped to avoid. Moreover, the present difficulties in Northern Rhodesia are
bound to be increased if the Company continues to administer the territory for any
considerable length of time after it has become in Southern Rhodesia a purely
commercial Company.
3. As regards Southern Rhodesia, the Secretary of State naturally shares their
Lordships' desire that any assistance to be provided, from the British Exchequer
should be as small as possible, but the matter is one on which there must be some
compromise, and it will not, of course, be practicable to negotiate with the Company
on the basis that His Majesty's Government had successfully contested on all points
the claims raised in the Company's Petition of Right. Further, the data do not exist
for computing with any approach to precision the present value of the debt to the
Company calculated on the rate of receipts from the sale of unalienated lands, and even
if His Majesty's Government had established that the Company was entitled to look
only to these receipts for reimbursement, the calculation of the present value of the
debt on this basis would itself be a matter for negotiation, with the Company.
4. As regards the suggestion that the British South Africa Company might be
prepared to take an annuity in lieu of a lump sum, 1 am to observe that the Company
offered, in their Memorandum of the 26th February, to accept part payment in the form
of a Southern Rhodesia Government loan guaranteed by His Majesty's Government
and the Secretary of State anticipates that the Company would certainly require that
any annuity payable from Southern Rhodesia funds should likewise be guaranteed
by His Majesty's Government. He fears that this might give rise to complications
and he would much prefer, on political grounds, that any settlement with the Company
should be an outright settlement which would dispose finally of their claims.
5. As regards the other suggestion of their Lordships, viz., that any sum which
it may be necessary for His Majesty's Government to find, additional to that which
would be covered by the loan to be raised by Southern Rhodesia, should be treated as
a loan and not as a free grant, I am to enquire whether the Secretary of State
correctly understands that their Lordships would agree to such a loan being treated as
one on which no interest would be required to be paid for a period of years, after
which the position could be reviewed in the light of the financial position of Southern
Rhodesia.
6. I am to add, with reference to their Lordships' remark that Southern Rhodesia
would be in a unique position in being endowed with the value of the unalienated lands,
that the normal arrangement, both in the Dominions and in the Colonies, is that the
Crown lands are vested in the local Government, and their proceeds available for local
needs. Consequently, if the Crown lands in Southern Rhodesia had to be retained by
His Majesty's Government as contemplated in the draft Letters Patent, a most
itnusual situation would arise. At the same time it must be borne in mind that,
with the past assent of the Imperial Government, the mineral rights of the whole
territory have been alienated to the British South Africa Company.
I am, &c.
C. T. DAVIS.
The Secretary, Treasury.
(Signed)
o
ANNEXURE
Rhodesia.-2064.
12, 70.
PROOF,
53197 '
, -., ... .
THE B R I T I S H SOUTH A F R I C A C O M P A N Y to THE C O L O N I A L OFFICE. .
(Received 25th November, 1922.)
[Answered by No. 58197.]
The British South Africa Company,
Rhodesia House,
2, London Wall Buildings,
London, E.C.2,
M Y LORD DUKE,
j
;;
, 23rd November, 1922.
THE result of the recent Southern Rhodesia referendum would appear to
have made it certain that the burden of administration which the British South
Africa Company has carried in Rhodesia for more than thirty years is to betrans­
ferred £o other shoulders, at an early date.
If the result of the referendum had been in favour ,of the incorporation of
Southern Rhodesia in the Union of South Africa, "the main questions outstanding
between the Crown and the Company would have been at once disposed of. But
as matters stand all those questions remain unsettled and create a situation of great
difficulty, and the present moment, at which, simultaneously with the holding of
the referendum, new Ministers who have no personal responsibility for, the past
dealings of the Crown with the Company, have entered upon the direction of the
affairs of the Colonial Office, appears to be an opportune one for reviewing the
history of the events which have led up to that situation.
The Company's administration of Mashonaland began in 1890, and in 1894,
after the Matabele War of 1893, was extended over the whole of what is now
Southern Rhodesia,
That the Company was willing in 1894 to accept at its own cost the necessarily
onerous and expensive task of Government was due to the fact that it believed that
it owned the principal assets of the territory, namely, the minerals, and subject to
the duty of making proper provision for the requirements of the natives, the land,
in virtue of concessions granted by Lobengula, who at the time of the grants had
been the acknowledged native sovereign of the territory. These concessions had
been ratified and approved by the Crown after full examination of them; and the
Company might reasonably believe that if the Crown entertained any doubts as to
the rights which the Company claimed when it undertook to bear the expense of
Government, still more if the Crown, cherished any idea that those rights, or some
of them, belonged not to the Company but to itself, it would have mentioned the
fact, and would not have allowed the Company to appeal to the public to invest its­
money on the faith of the Company's undisputed enjoyment of those rights.
So far as the mineral rights are concerned, the Crown has clone nothing to
falsify the Company^ reasonable expectations. The Company's enjoyment of them
has not been and is not now questioned.
The history of the land rights has been very different. For many years, how­
ever, nothing occurred calculated to throw doubt upon the Company's position, in
regard to them. On the contrary, statements officially made on behalf of the Crown
were calculated to confirm it.
On the 18th February, 1898, the Company submitted to the Colonial Office that
" i n view of the large expenditure and the heavy financial responsibilities of-the
Company in connexion with the administration of Southern Rhodesia, all future
administrative expenditure not met by Revenue, as also a fair proportion of past
expenditure of the same nature, should be regarded as a first charge on the country,
and eventually be constituted a public debt." The reply received from the Colonial
Office on the 18th July, 1898, was that the Secretary of State " must decline to
pledge His Maiesty's Government in advance to acknowledging anything in the
nature of a public debt, or of a charge on the administration as distinguished from
the Com nan v itself, which has been placed in possession of all the assets of the
country." The vitally important words with which.the above'quoted extract eon­
cludes were repeated in another letter from the Colonial Office of the 13th March,
1906, dealing with a nroposal to issue loans on the security of the Administrative
revenue, of Southern Rhodesia, for expenditure upon public purposes. This letter
reiterated "the strong objection which His. Majesty's Government entertain'to the
principle of creating a public debt of Southern Rhodesia, and placing a charge of
that nature on the revenues of the territory as distinguished from those of the
British South Africa Company, which has been placed in possession of all- the
. , .
assets of the country."
.
I t is not contended that the attitude taken up ..by the Crown in these letters
was unreasonable, having regard to the basis on which it rested. It is that basis
itself, the assertion that the Company had been placed in possession of all the assets
of the country, which quite clearly included the land, that is important, Nor is it
contended that possession, is the same thing as ownership.
But it would be
incredible, were it not the fact, that the Crown, having itself placed the Company
in. possession of the land, and having maintained for so many years the attitude
above described, should afterwards and without warning have sought to deprive
the Company of its possession of the land without making good to it the value of
that possession.
The Company, prohibited by the Crown on the express ground of its possession
of (inter alia) the land from raising funds for the discharge of its duties by the
method which it had proposed, was obliged to obtain, fresh capital by issuing new
shares. In fact, between 1898 and 1906, £4.292,937 were raised by the issue of
shares in the Company. After 1906, £2,939,703 were similarly raised. In appeal­
ing to the public for fresh money the Company naturally placed before its share­
holders what had been officially stated by the Crown with regard to " all the assets
of the country," including the land, the Company's possession of which constituted,
an essential part of the security which was being offered to the public in return
for its money, and laid great stress upon that possession. The Crown stood by,
looked on, kept silence and did nothing.
Eor some time before 1906, as the Crown must have known, private individuals
in Southern Rhodesia had been questioning the Company's rights in regard to the
land, and had been claiming that in some way or other it " belonged to the people,"
or that the proceeds of it could only properly, be used for public purposes. In
1908, in pursuance of. a resolution of the Legislative Council, this matter, along
with other matters in dispute between the settlers and the Company, was referred
to His, Majesty's Government.
The then Secretary of State for the Colonies
replied in a despatch to the High Commissioner for South Africa of the 25th
February, 1909, that " T h e questions which His Majesty's Government had' been
asked to decide were to a large extent matters which, unless they could be settled
by agreement, between the parties concerned, did not appear under present circmn­
stances to be susceptible of any binding.solution except by the Courts of Lav.', and
that, even were His Ma]esty's Government to undertake to express an opinion,
the] would not be able to compel either side to acquiesce in the decision, if there
should be any reason for objecting.".
This reply is intelligible enough on the natural assumption that the Crown
was maintaining the view with regard to the Company's position in relation to
the land which "It had asserted in 1898,, and. again in 1906, and was taking the line
that if anybody else chose to dispute that position he must either make his own
agreement with the Company or go to law.
But, disclaiming as it does in the
plainest terms any idea of the Crown being a party to a dispute on the subject,
it is utterly irreconcilable with a subsequent claim by the Crown to be itself the
owner, of the land. ,
......
Even when at the beginning of 1914 the then Secretary of State for the Colonies
suddenly announced that he had decided that the dispute between the Company ana
those who challenged its position in relation to the land must be settled, and that he
proposed to refer it to the Judicial Committee of the Privy Council, the Company's
opponents being represented by a Committee of the Elected Members of the
Southern Rhodesia Legislative Council, there was no indication that the Crown
proposed.so completely to. reverse its whole previous attitude as to make itself a
party to the dispute and itself to.claim the land as its own. On the contrary, at
. two formal interviews with the Permanent Under Secretary of. State at the Colonial
Office, the Company's representatives were deliberately assured, verbally but
officially.,that the Crown did not claim the land, and that its.intention was merely
to provide a convenient., forum, in which, the. par ties to the dispute, of whom the
Crown was not one, might obtain a final decision of it.
:
1
7
"The Company accepted-these assurances in-good faith, acquiesced intherefer­
ence to the Judicial Committee, and agreed that its judgment should be final'and
binding. Not long afterwards the Crown went back on its assurances without a
word of warning to the Company, and itself appeared before the Judicial Coin­
mittee as directly claiming the land. This was a complete change of the position
under which the Company acquiesced in the reference.
The result of the. long proceedings before the Judicial Committee, of the Privy
Council was a judgment declaring, in effect, that the Crown was, as it claimed to be,
the owner of the Southern Rhodesia land, but that if the land,was taken out of the
hands of the Company, the Company was entitled to be duly reimbursed for the
out of pocket expenditure incurred by it as agent for the Crown in carrying on
the administration of the territory and in dealing with the land. The amount of
that expenditure was fixed by Lord Cave's Commission as at 31st March, 1918,
and stands to-day at rather over £3,000,000. Over and above this sum the present
value of the Company's public works and buildings in Southern Rhodesia stands at
about £750,000 of its movable assets used for administrative purposes at about
£300,000, While the debts owed to it on Southern Rhodesia Administrative Account
stand at about £60,000.
The late Secretary of State for the Colonies in anticipation of the grant of
Responsible Government to Southern Rhodesia, the form, of Government which the
people of the territory have now chosen by their vote at the recent Referendum,
prepared and published draft Letters Patent providing for that form of Govern­
nient. Under the relevant clauses of these draft Letters Patent, if brought- into
operation, the-land would be taken out of the hands of the Company, and placed in
those of the Crown, while the reimbursement to which the Company is entitled
would be in effect withheld from it.
The Crown, denying the Company's contention that interest must be paid on
the sum due to it as from 31st March, 191.8, the date as at which the sum clue was
first authoritatively established, has contended that the proceeds of further sales
or leases of the land are the sole security for the Crowns debt to the Company,
that is to say, that they are the only source from which any funds will be made
available for any repayment to the Company; that'the Crown, the debtor, can take
the security into its own possession and away from the Company, the creditor, can
place a nominee of its own in charge of it, and pay him out of the proceeds of it;
can instruct him in his dealings with it to have regard to divers other oonsidera­
ions of public policy in preference to the duty of repayment to the Company; and
that the Company must be content merely to accept annually any nett revenues that
may be derived from it, if indeed there be any under such arrangement, until the
total of them equates with the bare. principal of the sum owed to the Company
on.the day of the Crown's taking the land out of the Company's possession. It is
manifest that the date of this equation would not be reached for very many years,
if ever, and that " repayment" of a debt without interest spread over an indefinitely
long period of time, is not in any real sense repayment at all.
The arrangement therefore which appears to have commended itself to the
Crown, and is provided, for in the draft Letters Patent, is such as to.deprive the
Company of any effective reimbursement, notwithstanding that the judgment of the
Judicial Committee of the Privy Council is expressly based upon the Company^
right as an agent to such reimbursement.
Nor is this all. The Crown has apparently claimed that it can at its pleasure
diminish what according to it is the Company's sole security by subtracting there­
from such areas of land as may at any time be required for government purposes,
i.e., the C r o W s own purposes—without payment; and has even gone the length
of claiming that the mere act of setting; up in Southern Rhodesia a new form of
administration in. pi ace of that of the Company will have the mysterious effect of
transferring from the Company to the Crown the property in the. Company^
moveable assets, used for administrative purposes, such for example, as office
furniture^ or police and; defence equipment, and in the debts owed to the Company
on -administrative account. In return for these assets, the Company must, in the
Crown's contention, look for repayment of the same illusory kind and from the same
source as in the case of the CrowiVs main debt. For the public works and-buildings
belonging to the Company, which, unlike any of its other assets, the Company's
Charter gives the Crown the right to take on payment of compensation for them,
the Croyn has admitted that it must pay, but has' indicated clearly that it is not
prepared to pay fairly for anything else.
. The Company; was' naturally bdund to resist by any means open to it claims
so manifestly contrary to the spirit and letter of the Privy Council Judgment.
Accordingly, on receipt from the Colonial Office of a draft of the Responsible
Government Letters Patent based' on these claims, it intimated to the Secretary
of State that if they were persisted in it would be compelled to seek justice in
the Courts, and to sue for full repayment of the debt due from the Crown to the
Company on the termination of the Company's administration of Southern Rhodesia,
with interest thereon, from,31st March, 1918. The draft Letters Patent having
subsequently been, made public "in a form substantially unamended, and the alterna­
t,ive of incorporation in the Union of South Africa having been refused by the
Electorate of Southern Rhodesia, the Company has now filed a Petition of Right
in the sense already indicated.
There, at the present moment, matters stand, but it is worth while to observe
that.previous Secretaries and Parliamentary Under Secretaries of State have bound
themselves by a long series of pledges to Parliament not to make any payment or to
place any liability upon the taxpayers of this country in connexion with the settle­
men t of the Southern Rhodesia question without the prior approval of Parliament.
The draft Responsible Government Letters Patent have, however, been issued,
accompanied by a virtual promise that a Constitution based upon them will be set
up if the Electorate of Southern Rhodesia should vote, as it has now voted, in
favour of them, without the approval of Parliament having been either asked or
obtained. Even on the Crowns own admission the effect of what has been dons
will be that the Crown will have to pay for the Company's public works and build­
ings, trusting to the ability of a new Colonial Government which does not yet
exist to repay to the Crown the sum so spent within twelve months of its coming
into existence, while contingently on the Company succeeding in whole or in part
in its Petition of Right,* a liability which may amount to over £5,000,000 is imposed
on the taxpayers of this country, without recourse against the new Colonial
Government.
It is not therefore from the point of view of the Company alone that the
Crown's proceedings may give justifiable cause for complaint.
In Northern as in Southern Rhodesia the recent actions of the Crown in
regard to the Company have been little calculated .to inspire confidence in the
Crown's attitude.
In Northern as in Southern Rhodesia the Crown has allowed the Company
to establish an administration which is unanimously recognized by all competent
judges to be a very good one, but which has cost the Company dear, and to do so
on the faith of land and mineral concessions recognized by the Crown as valid.
In Northern as in Southern Rhodesia the Crown has for many years stood by and
watched the Company spending its money on the work of Government without
questioning its rights. The Company', however, thought it prudent to review its
position in the North in the light of the Judgment of the Judicial Committee of
the Privy Council regarding the South, and two years ago, in November, 1920,
formulated in a letter to the Colonial Office! what it was then advised that that
position was. The Crown has indicated vaguely that it does not agree with the
Company's statement; but so far all the efforts of the Company to induce the Crown
to say clearly in what respects it disagrees with it and what the Crown itself claims
to be the,true position have proved unavailing. The Crown has contented itself
with suggesting that fresh proceedings before the Judicial Committee of the Privy
Council should take place upon issues undefined. This amounts to a suggestion
that the Crown and the Company should enter upon yet another long course of
tedious, costly and probably inconclusive litigation without even knowing that any
dispute exists between them incapable of a fair and rational settlement by agree-­
ment, and, apparently, that in the meanwhile the Company's heavy out-of-pocket
expenditure on the government of Northern. Rhodesia should go on.
The Company cannot believe that His Maiesty's advisers will, upon full con­
sideration, adhere to a suggestion so unbusinesslike and so unfair.
Enough has been said in. resrard both to Northern and Southern Rhodesia to
show that a problem. exists calling-for. the early and serious attention of His
Majesty's Government. So far the treatment of the Company by the Crown has
v
. * No. 11966.
fNo.
been such that it can occasion no surprise if the Company is able to derive only &
very modest degree'of satisfaction from the complimentary pnrases concerning the
Company's great services to the Empire which have fallen so freely from' the lips
of Ministers in the recent past. " We have written frankly in the hope that
the Rliodesian problem may, at the" present crisis in "the affairs of the territory,' be
approached by His Majesty's Government in a, fair spirit, and that a serious-effort ­
may be made to arrive at a solution of it. which may be consonant with elementary ''
justice, and may make unnecessary what otherwise promise to be well nigh endless
processes of litigation.
I am, &c,
P. L Y T T E L T O N G E L l w
President,,
For and on behalf of the Board of the.
J' " '
. British South Africa Company,
1
;
t
ANNEXURE
2
CONglDEFJIAL.
£.23
38'
BRITISH SOUTH AFRICA, COMPANY.
M 0 R
A
N D U LI.
The p r o p o s a l s i n t h i s memorandum a r e s u b m i t t e d
i n response in t h e i n v i t a t i o n extended to t h e Company's
r e p r e s e n t a t i v e s i n the statement handed to them by the
P a r l i a m e n t a r y Under S e c r e t a r y o f S t a t e f o r t h e C o l o n i e s
on t h e 16th F e b r u a r y .
For convenience the proposals
have been arranged under the separate h e a d i n g s o f
Southern aid N o r t h e r n R h o d e s i a , but they are i n t e n d e d
to be read t o g e t h e r and a r e s u b m i t t e d w i t h o u t p r e j u d i c e
a s a s i n g l e scheme f o r a complete and comprehensive
s e t t l e m e n t o f a l l q u e s t i o n s o u t s t a n d i n g b e t w e e n the
Crown and the Company.
SOUTHERN RHODESIA.
The f u l l amount t o Which the B r i t i s h South A f r i c a
Company i s a d v i s e d that i t i s e n t i t l e d , as at 31st
March, 1922, on the assumption t h a t the Crown takes o v e r
a l l the P u b l i c B u i l d i n g s and Lioveable A s s e t s used f o r
a d m i n i s t r a t i v e purposes, i s £5 , 446 , 8 9 0, from w h i c h ,
however, f a l l s t o be d e d u c t e d a sum of £384,000 i n
r e s p e c t o f Crown Land a p p r o p r i a t e d by the Company f o r
I t s own commercial purposes or g r a n t e d f o r v a l u a b l e
c o n s i d e r a t i o n o t h e r than c a s h .
Thus the t o t a l " sum
which the Company on the above assumption would
c l a i m as at 31st March, 1922, i s £ 5 , 0 6 " , 8 9 0 .
The Company i s a d v i s e d that i t s c l a i m i s a
c l a i m d i r e c t l y a g a i n s t H i l l . Government.
The Company
r e c o g n i s e s however t h a t , i n p r a c t i c e , the complete
s a t i s f a c t i o n o f what i t i s a d v i s e d are i t s l e g a l
c l a i m s would be l i k e l y t o l e a d t o an i m p o s s i b l e
p o s i t i o n f o r t h e c o n t e m p l a t e d new R e s p o n s i b l e Government
o f Southern Rhodesia , and t h a t the p r o s e c u t i o n
o f i t s c l a i m by means o f l i t i g a t i o n would l e a d to
v e r y l o n g delay i n the e s t a b l i s h m e n t o f t h e system
o f R e s p o n s i b l e Government f o r which the Southern
R h o d e s i a n Community has v o t e d , and t h e r e f o r e w j u l d be
p r e p a r e d , i n o r d e r to o b t a i n a prompt and f i n a l s e t t l e ­
ment o f a l l q u e s t i o n s , o u t s t a n d i n g between i t s e l f and
the Crown i n r e g a r d to Southern Rhodesia t o a c c e p t i n
cash or i t s e a u i v a l e n t on the 1st October 19 2 3 , the sum
of £3,750,000 "in f u l l s a t i s f a c t i o n o f i t s c l a i m s .
This
w o u l d i n v o l v e t h e r e d u c t i o n o f t h e Company's t o t a l
c l a i m by the amount o f £ 1 , 3 1 2 ,8 90.
I n c o n s i d e r a t i o n o f t h i s payment f r e e p o s s e s s i o n
would be o b t a i n e d o f a l l the a s s e t s r e f e r r e d to under
t h e h e a d i n g "Southern Rhodesia A d m i n i s t r a t i v e and Land
A c c o u n t , " which a p p e a r s i n t h e Company's l a t e s t Balance
S h e e t , T . e . the Balance Sheet a s a t 31st March, 1922,
s e e page 31 of t h e R e n o r t and Accounts annexed h e r e t o ,
Annexure 1 .
Annexure 2 h e r e t o fa statement c o m p i l e d as a t
30th Sept ember, 1 921) shews under s e p a r a t e headings
what t h e Crown would be acquiring- by g e t t i n g the un­
a l i e n a t e d l a n d o f the t e r r i t o r y "free, from any r i g h t s
or claims by t h * Company i n r e s p e c t of i t .
Annexuro 3 shews what i t i s e s t i l t e d should be i n
normal t i m e s t h e cash r e c e i p t s from t h e l a n d for t h e
next 10 y e a r s a c c r u i n g t o any a u t h o r i t y p l a c e d i n
p o s s e s s i o n of the l a n d and t a k i n g o v e r the e x i s t i n g
r i g h t s o f t h e Company as a g a i n s t p e r s o n s who have
taken up l a n d .
I t would he necessary t o arrange f o r t h e i s s u e to
t h e Company of some document securing i t s t i t l e t o those
a r e a s of u n a l i e n a t e d land on which i t i s a t p r e s e n t
c a r r y i n g on i t s farming and "ranching o p e r a t i o n s , and f o r
which, as f o r any g r a n t s of land which may hove been made
to t h i r d p a r t i e s f o r v a l u a b l e c o n s i d e r a t i o n o t h e r t h a n
c a s h , f u l l a l l o w a n c e would be deemed to have been made
t o the Crown i n t h e s e t t l e m e n t above s u g g e s t e d .
I f the Crown which i t i s assumed would wish t o
endow the Company's s u c c e s s o r s i n the A d m i n i s t r a t i o n
w i t h the a s s e t s under d i s c u s s i o n i n o r d e r to s t a r t them
on t h e i r c a r e e r w i t h the best p o s s i b l e chances o f
success s h o u l d , a t the same t i m e , c o n s i d e r t h a t t h o s e
s u c c e s s o r s should assume p a r t o f the f i n a n c i a l burden
o f a c q u i r i n g t h e a s s e t s , t h e Company would be prepared
t o a c c e p t payment o f such p a r t of the £3 750,OC0 above
r e f e r r e d t o as H.11.Government might t h i n k p r o p e r in t h e
form of a Southern Rhodesia Government l o a n guaranteed
by H.i-i. Government, i s s u e d on terms not l e s s f a v o u r a b l e
than those- upon which H.M. Government could r a i s e money
i n t h e open market a t the date of i s s u e .
s
-
I f H.II. Government s h o u l d wish f o r t h e Company's
s u g g e s t i o n s or a d v i c e i n any m a t t e r connected, with the
a l l o c a t i o n as between the Crown and the Southern
R h o d e s i a Government o f the payment o z t h e £ 3 , 7 5 0 , 0 0 0
t o t h e Company, the Company would, be most w i l l i n g t o
o f f e r such s u g g e s t i o n s or a d v i c e .
IQRTHERH RH0D.SSIA,
The Company's n o r t h e r n Rhodesia A d m i n i s t r a t i o n
t o end s i m u l t a n e o u s l y with i t s A d m i n i s t r a t i o n o f
Southern R h o d e s i a .
The Company t o abandon a l l
Administrative d e f i c i t s .
c l a i m for
past
BUM. Government t o make no c l a i m a g a i n s t the
Company f o r M i l i t a r y E x p e n d i t u r e .
I t i s submitted
t h a t th e fa ct t h at t h e Or own woul d b e wa. i ving
what i t may be a d v i s e d are i t s r i g h t ? i n t h i s
r e s p e c t o n l y as p-^rt o f a g e n e r a l compromise arrangement
f o r the s e t t l e m e n t o f n number o f q u e s t i o n s outstanding
between i t and t h e Company "would a f f o r d a s u f f i c i e n t
answer t o any s u g g e s t i o n t h a t the Crown would be
compromising i t s p o s i t i o n i n r e g a r d tc any o t h e r A f r i c a n
C o l o n y or P r o t e c t o r a t e a g a i n s t which i t may be d i s p o s e d
t o p r e f e r c l a i m s in r e s p e c t o f war e x p e n d i t u r e .
The Crown to t a k e over at the 1 s t O c t o b e r , 1923,
( i ) the Company" s moveable a s s e t s used f o r a d m i n i s t r a t i v e
p u r p o s e s , the estimated, v a l u e o f which i s shewn on page­
31 of the Balance Sheet at 31st March, 1922, at £116,88 8,
and which the Company is a d v i s e d have been k e p t
up t o a p p r o x i m a t e l y t h e same v a l u e t o - d a y .
( i i ) tho P u b l i c Works and B u i l d i n g s (which a r e shewn
at c o s t £407,798) at a f i g u r e which s h a l l make a f a i r
a l l o w a n c e f o r d e p r e c i a t i o n and f o r e x p e n d i t u r e i n c u r r e d
s i nee 3] s t March, 1922.
The Company i s a d v i s e d that i t would be f a i r t o
w r i t e o f f £100,000 t o d e p r e c i a t i o n , w h i l e t h e e s t i m a t e d
e x p e n d i t u r e f o r 192 2-23 i s £ 2 0 , 0 0 0 .
Thus the f i g u r e o f
£407,798 would be reduced b y £80..000 to £ 3 2 7 , 7 9 6 .
The
Company would accept f o r the moveable a s s e t s aril p u b l i c
works and b u i l d i n g s t a k e n t o g e t h e r t h e round sum o f
£440,000.
The Crown to t a k e o v e r e x i s t i n g c i v i l s e r v a n t s
w i t h a l l t h e i r r i g h t s and t o be l i a b l e f o r the pensions
o f c i v i l s e r v a n t s who have r e t i r e d on p e n s i o n .
of
The Crown to r e c o g n i s e the Company as the owner
a l l the mineral r i g h t s throughout N o r t h e r n R h o d e s i a .
The Crown "forthwith to appoint a N a t i v e R e s e r v e s
Comnission o r Commissions to make adequate p r o v i s i o n
f o r land f o r e x c l u s i v e n a t i v e o c c u p a t i o n throughout
Northern R h o d e s i a .
Such Commission or Coirmissions
t o d e a l f i r s t w i t h the A r e a s where t h e q u e s t i o n
of the
d e f i n i t e assignment o f n a t i v e r e s e r v e s i s most p r e s s i n g .
These a r e a s a r e ( a )
The a r e a s t r a v e r s e d by the l i n e o f
railway,
(b ) The N o r t h C h a r t e r 19.nd a r e a .
The Terms o f R e f e r e n c e t o the N a t i v e R e s e r v e s
Commission or Coirmissions should p r o v i d e t h a t the a r e a s t o
b e a s s i g n e d f o r t h e r e s e r v e s should not be g r e a t e r per
head o f t h e P o p u l a t i o n fot which t h e y a r e r e q u i r e d than
the Southern Rhodesia r e s e r v e s .
The Crown to r e c o g n i s e the Company's ownership of
3 a r e a s o f land i n the n o r t h e r n p a r t of N o r t h - e a s t e r n
Rhodesia a c q u i r e d by the Company under t i t l e from t h e
A f r i c a n L a k e s C o r p o r a t i o n , and of so much l a n d i n what
i n 1911 was known as Bar o t s eland N o r t h We s t e r n R h o d e s i a ,
as may l i e o u t s i d e the b o u n d a r i e s of any n a t i v e r e s e r v e s .
The Company's land so long as i t remains i n i t s
hands, to be h e l d by i t f r e e of any land t a x and no
f u r t h e r q u e s t i o n t o be r a i s e d by the Crown about any
p a s t land t r a n s a c t i o n s of t h e Company i n N o r t h e r n Rhodesia .
I n c o n s i d e r a t i o n of the above t h e Company to
undertake t h a t pending the r e p o r t of t h e N a t i v e R e s e r v e s
Commission i t w i l l not a l i e n a t e any land i n N o r t h - W e s t e r n
Rhodesia, w i t h o u t the consent o f the l o c a l Government , and
t h a t i t w i l l at any time t r a n s f e r f r e e o f -charge to t h e
l o c a l Government or Governments o f Norths r n Rho desi a any
a r e a s o f land remaining i n i t s hands at any t i n e r e a s o n ­
ably and bona f i d e r e q u i r e d for a d m i n i s t r a t i v e as d i s t i n c t
from s e t t l e m e n t p u r p o s e s ,
The Crown to make such arrangements as w i l l s e c u r e
t h a t any agreement between i t s e l f nnd t h e Company s h a l l be
b i n d i n g upon any l o c a l Government o r Governments which may
h e r e a f t e r be e s t a b l i s h e d i n N o r t h e r n R h o d e s i a o r any p a r t
of i t ;
and t h a t i n m y instrument e s t a b l i s h i n g such local.
Government or Governments the Company s l s n d , M i n e r a l and
r a i l w a y r i g h t s s h a l l be accorded a measure of p r o t e c t i o n
not l e s s e f f e c t i v e t h a n that g i v e n to the Company s mineral
and r a i l w a y r i g h t s i n the Draft Southern Rhodesia b e t t e r s
Patent,
,;
1
26th F e b r u a r y ,
192 3.
Annexure
SOUTHERN
GROWN
LAMPS
AND I N T E R E S T S
ETC
Acres..
Annual
R e n t a l s &c.
c u r r e n t at
.30th S e p t r .
1921.
£.
Vacant u n r e s e r v e d a r e a s ( o t h e r
than those- r e f e r r e d t o d e l o w )
i n c l u d i n g outspans.
45,559,919
Native Reserves.
19,653,813
Unpaid i n s t a l m e n t s i n r e s p e o t of
the purchase p r i c e o f lands
granted under P e r m i t s of
Occupation or s o l d under D / l
Grants..
Outstanding purchase p r i c e
Titles.
4,885,531
54,897
12,191
581
279,975
13,372
Value at
30th S e p t r .
1921.
£.
934,304
D/l
Areas'leased as Farms, S t o r e S i t e s ,
Mission S i t e s , Grazing Grounds.
Unsold Township Stands i n the
Municipalities (Municipal
v a l u a t i o n ) and a r e a s o t h e r
Stands r e s e r v e d .
8,303
185,263
five
than
Unsold Township Stands o t h e r than
those i n the f i v e M u n i c i p a l i t i e s
(at an a v e r a g e p r i c e t h r o u g h o u t )
Stands s o l d not f u l l y p a i d
2.
RHODESIA.
3,268
188,610
2,169
90,930
384
for
5,516
Township Commonages o t h e r than t h o s e
i n the f i v e M u n i c i p a l i t i e s ( f r o m
£2. to £ 1 0 . p e r a c r e )
84,270
575,762
Land r e s e r v e d f o r f u t u r e
Commonages,
26,235
52.^64
-and r e s e r v e d f o r
Scheme, e t c .
Soldier
Township
Settlers.'
105,577
Areas r e s e r v e d f o r and o c c u p i e d by
or n e c e s s a r i l y used i n c o n n e c t i o n
vrith P u b l i c B u i l d i n g s and Works..
forward
257,968
21,946
70,634,894
69,234
2,209,120
Acres.
Annual
E e n t a l s &o.
c u r r e n t at
30th S e p t r .
1921.
Value at
30th S e p t r .
1921.
£.
forward
70,634,894
Areas ( o t h e r than t h o s e on which
p u b l i c b u i l d i n g s and works
e x i s t ) r e s e r v e d f o r Adminis­
t r a t i v e purposes
Crown"s h a l f I n t e r e s t
Commonages,
in
69,834
2,299,120
1,741
12,192
73,844
736,490
Municipal
Quit Rents : 20 y e a r s purchase
of annual r e n t s c u r r e n t at
30th September 1921 i n r e s p e c t
of 22,170,690 a c r e s o f l a n d .
1
Timber Concession
Gwale
;
WarJdLe.
Small H o l d i n g s .
Mining S i t e s :
chase .
\ of
Native Rents:
20 y e a r s purchase.
798,867
a 287
(
20 y e a r s pur­
Balance of Railway farms t o which
t i t l e not i s s u e d .
17,795
355,904
2,500
50,000
-
17,284
400
8,000
6,500
130,000
188,401
71,707,034
m ­
£96,429
£3,608,990
Ins Bri tlsh South Africa, Company - "Land Settlement
STATEMENT OF ANTICIPATED
LAND RECEIPTS I N SOUTHERN RHODESIA UNDER PERFECTLY JHORM&i CONDITIONS
FOR THE YEARS ENDING 31/3/192.3 t o
1923
1924
Department.
1925
31/3/1932.
1926
L927
19 28
L929
1930
1931
TOTALc
£
Permit of
Purchase
Occupation
Price.
33,071
35,708
43,178
23,714
47,973
52,227
64,951
197,155
394,559
10,378
902,414
I n s t a l m e n t s o f D/l
S a l e s a l r e a d y made.
1,341
1,341
1,341
1,341
1,341
1,341
1,341
1,341
1,341
1,341
13,410
I n s t a l m e n t s F u t u r e D/l
SalaS ( l . e
l / 2 0 t h of
£100,000 p e r annum from
y e a r e n d i n g 31st March.
1323)
5,000
10,000
15,000
20,000
25 000
30,000
35,000
40,000
45,000
50,000
275,000
10,000
10,000
10,000
10,000
10 000
10,000
10,000
10,000
10,000
10,000
100,000
6,000
6,000
6,000
6,000
6,000
6,000
6,000
6,000
6,000
6 000
: 60,000
94,761
99,318
103,105
107,619
110,445
112,690
113,801
107,447
89,793
92,913
1031,892
178,624,
160,674,200,759.
u
Diroot
Cash S a l e s .
Stand. S a l e s
Interest.
including
R e n t a l s and D/l
Interest etc.
£
149,173, 162,367,
212,258. 231,093. 361,943. 546,693.
5
171,132.2382,716.
CA3
ANNEXURE 3
Northern
.n both cases
the Barotse
reserve must
be regarded
s excluded
the terms
the
Company s
concessions. )
Rhodesia.
I n June 1920 the A d v i s o r y C o u n c i l i n n o r t h e r n
Rhodesia adopted a r e s o l u t i o n a d v i s i n g t h a t the q u e s t i o n
of the ownership of the land and m i n e r a l r i g h t s i n
N o r t h e r n Rhodesia should be submitted w i t h o u t d e l a y to
t h e J u d i c i a l Committee of the P r i v y C o u n c i l .
On r e c e i p t
o f the r e s o l u t i o n i t was r e f e r r e d to the B r i t i s h South
A f r i c a Company f o r t h e i r o b s e r v a t i o n s and they r e p l i e d
i n a l e t t e r s e t t i n g f o r t h t h e i r claims which were
( a ) t h a t t h e y were owners of the m i n e r a l r i g h t s t h r o u g h ­
out n o r t h e r n Rhodesia
,
of the u n a l i e n a t e d l a n d i n
' L e w a n i k a s t e r r i t o r y +1.60 what was n o r t h Western
Rhodesia a t the date of the Order i n C o u n c i l of 1911
(when Horth Western and n o r t h E a s t e r n Rhodesia were
a m a l g a m a t e d ) , and of t h r e e a r e a s i n n o r t h E a s t e r n
R h o d e s i a : and were e n t i t l e d to a l l r e c e i p t s t h e r e f r o m
p a s t and f u t u r e .
l
1
(b)
t h a t the Company was r e s p o n s i b l e f o r the d e f i c i t
on the a d m i n i s t r a t i o n of n o r t h Western Rhodesia p r i o r
to the i s s u e of the Order in C o u n c i l of 1911.
(c)
t h a t i f and when the Company's a d m i n i s t r a t i o n of
n o r t h e r n Rhodesia i s determined i t w i l l be e n t i t l e d to
be r e - i m b u r s e d by the Crown f o r the accumulated d e f i c i t
on the a d m i n i s t r a t i o n of n o r t h E a s t e r n Rhodesia b e f o r e
1911 and of
n o r t h e r n Rhodesia s i n c e t h a t d a t e , the
Crown b e i n g e n t i t l e d to a l l net r e c e i p t s from the land
i n what was R o r t h E a s t e r n Rhodesia,, e x c e p t from so
much o f i t as i s owned by the Company.
E a r l y i n 1921 the Buxton Committee was
a p p o i n t e d and i t was asked to a d v i s e i n t e r a l i a whether
the Company s c l a i m s should be r e f e r r e d t o the p r i v y
C o u n c i l f o r s e t t l e m e n t or whether t h e y should i f p o s s i b l e
be s e t t l e d by agreement between the Crown and the
Company,
The Committee a d v i s e d t h a t the claims of the
Company to the l a n d and m i n e r a l s ' l n so f a r as t h e y are
open t o d o u b t " , and i n any case t h e i r c l a i m s t o any
reimbursement of the a d m i n i s t r a t i v e d e f i c i t s ( i n c l u d i n g
the q u e s t i o n of the e x t r a o r d i n a r y m i l i t a r y e x p e n d i t u r e
i n c u r r e d by the Company i n the War, which had a l s o been
i n d i s p u t e ) should i n v i e w of the number of p a r t i e s
i n t e r e s t e d and the o b s c u r i t y of the s u b j e c t be d e c i d e d
by a Court of Law:
that f o r t h i s purpose a r e f e r e n c e
should be made t o the p r i v y C o u n c i l and t h a t the l e g a l
A d v i s e r s o f the Crown should f o r m u l a t e f o r submission
t o the P r i v y C o u n c i l the p r e c i s e p o i n t s on which the
Company's c l a i m s cannot be a c c e p t e d .
1
T
A l i s t of q u e s t i o n s r e q u i r i n g d e t e r m i n a t i o n has
been prepared by the Law O f f i c e r s and communicated t o the
Company but d i f f i c u l t y has been e x p e r i e n c e d in o b t a i n i n g
the agreement of the Company t o a r e f e r e n c e owing to the
f a c t t h a t the La?; O f f i c e r s have not f e l t a b l e a t the
p r e s e n t s t a g e to f u r n i s h any statement o f the Crown .s
c a s e , beyond i n f o r m i n g the Company that i t was not
p o s s i b l e t o a c c e p t t h e i r c o n t e n t i o n w i t h r e g a r d t o the
r
l i a b i l i t y l o r the a d m i n i s t r a t i v e d e f i c i t .
This d i f f i c u l t y
has been due p a r t l y to the doubts which have been f e l t
as to the e x t e n t of the n a t i v e i n t e r e s t s and the
method i n which such i n t e r e s t s would be p r e s e n t e d b e f o r e
the P r i v y C o u n c i l and p a r t l y to e d e s i r e not t o p r e j u d i c e
any n a t i v e r i g h t s by p o s s i b l e a d m i s s i o n s on b e h a l f of the
Crown.
The Company s c l a i m s i n n o r t h e r n Rhodesia
based upon two d i f f e r e n t s e t s of c o n c e s s i o n s .
1
are
(a)
i n Horth.
. E a s t e r n Rhodesia on c e r t i f i c a t e s of claims
i s s u e d i n 1893 by S i r H. Johnston c o n f i r m i n g c o n c e s s i o n s
from v a r i o u s independent c h i e f s by which the Company
a c q u i r e d the whole of the m i n e r a l r i g h t s i n what was
then n o r t h E a s t e r n Rhodesia (down t o the Kafue R i v e r )
and t h r e e c o m p a r a t i v e l y small f r e e h o l d a r e a s near the
north eastern f r o n t i e r .
(b)
i n Dorth Western Rhodesia on the v a r i o u s l e w a n i k a
c o n c e s s i o n s o f 1900-09, which have been c o n f i r m e d by
H i s M a j e s t y s Government s u b j e c t to c e r t a i n c o n d i t i o n s .
These c o n c e s s i o n s g i v e the Company land and m i n e r a l
r i g h t s o u t s i d e the 3 a r o t s e R e s e r v e .
A question a r i s e s
as t o the a r e a to be r e g a r d e d as c o v e r e d by the Lewanika
concessions^
The boundaries of n o r t h Western Rhodesia
were e x t e n d e d i n 1905 from the Kafue E l v e r up t o a
l i n e drawn a c r o s s the narrow' p o r t of n o r t h e r n Rhodesia
which l i e s between Portuguese E a s t A f r i c a and the B e l g i a n
Congo,,
The Company a p p a r e n t l y c l a i m t h a t t h e i r l a n d
r i g h t s under the L e w a n i k a c o n c e s s i o n s extend to the new
boundary.
But i f so t h e y would o v e r l a p the a r e a
c o v e r e d by t h e i r m i n e r a l c o n c e s s i o n s In n o r t h E a s t e r n
R h o d e s i a , t h e g r a n t o r s o f which were d e s c r i b e d by
S i r H. Johnston a s the " s o l e and o n l y r i g h t f u l owners
of the l a n d " .
I t would seem p r o b a b l e t h e r e f o r e t h a t
His Ma j e s t y s Government must h o l d that the r i g h t s
o b t a i n e d by the Company under the lewanika c o n c e s s i o n s
e x t e n d o n l y up t o the Kafue R i v e r .
When a l l o w a n c e i s
made f o r the f a c t t h a t the B a r o t s e r e s e r v e i s a l s o
e x c l u d e d , the land r i g h t s o f the Company become, on t h i s
view, comparatively small.
r
1
The Crown on the o t h e r hand has never put
f o r w a r d any c l a i m t o the land and i t would seem t o
f o l l o w that the g r e a t e r p a r t of the land i n n o r t h e r n
Rhodesia must be r e g a r d e d as b e l o n g i n g t o the n a t i v e s .
Moreover Y e t a , the present Paramount C h i e f o f the B a r o t s e
has p r e s e n t e d a p e t i t i o n c l a i m i n g i n e f f e c t t h a t the
l e w a n i k a C o n c e s s i o n s were g r a n t e d to the Company i n t h e i r
a d m i n i s t r a t i v e and not t h e i r commercial c a p a c i t y .
This
c o n t e n t i o n f i n d s some support i n the language which has
been used i n the past i n correspondence between the
C o l o n i a l O f f i c e and the B r i t i s h South A f r i c a Company e . g .
i n a l e t t e r w r i t t e n on the 15th A p r i l 1909 the Company
were informed t h a t the land revenue i n r e s p e c t of n o r t h e r n
Rhodesia could not be t r e a t e d s s an a s s e t a c c r u i n g t o the
Company a b s o l u t e l y i r r e s p e c t i v e o f any p r o v i s i o n being.'
made f o r the e x p e n s e s of a d m i n i s t r a t i o n ,
When h o w e v e r '
the p o s i t i o n w i t h r e g a r d to n o r t h e r n Rhodesia was put .
to the Law O f f i c e r s i n 1920 t h e y a d v i s e d t h a t though t h e "
c l a i m o f the Company i n r e s p e c t of the l a n d comprised i n
the lewanika c o n c e s s i o n s was open t o some doubt they f e l t
t h a t t h i s statement was not s u f f i c i e n t t o q u a l i f y the
a p p r o v a l of the Concessions i n such a way as t o a f f e c t
the t i t l e o f the Company t o the l a n d as a commercial r e s e t .
But t h i s was b e f o r e Y e t a ' s p e t i t i o n and i t seems c l e a r
t h a t the p o s i t i o n in r e g a r d t o the land i n n o r t h Western
Rhodesia i s s u f f i c i e n t l y d o u b t f u l as to make i t i m p o s s i b l e
f o r E l s Majesty.'s Government to accept the Company's c l a i m
to f u l l ownership even m e r e l y over the area bounded by
the Kafue, w i t h o u t a d e c i s i o n by the C o u r t s ,
The m i n e r a l r i g h t s on the o t h e r hand do not
appear to be open to q u e s t i o n .
I t may be mentioned that
when t h e Lewanika Concession o f 1900 was c o n f i r m e d the
m i n e r a l r i g h t s were exempted from the p r o h i b i t i o n o f
a l i e n a t i o n and the Company have l e g i s l a t e d on the b a s i s
t h a t the m i n e r a l r i g h t s throughout n o r t h e r n Rhodesia are
their private property.
The Company's c l a i m t o reimbursement of the
a d m i n i s t r a t i v e d e f i c i t s i s l i m i t e d as r e g a r d s the p e r i o d
b e f o r e the d a t e o f the Order i n Council o f 1911 t o the
expenditure incurred i n north Eastern Rhodesia,
This i s
because i n the Order i n C o u n c i l of 1899 p r o v i d i n g f o r
the a d m i n i s t r a t i o n of Worth Western Rhodesic by the
High Commissioner f o r South A f r i c a i t was e x p r e s s l y
p r o v i d e d that the Company were t o make good any
d e f i c i e n c y i n the cost of the a d m i n i s t r a t i o n ,
The reason
f o r the absence ox any s i m i l a r p r o v i s i o n i n the n o r t h
E a s t e r n Rhodesia Order in C o u n c i l of 1900 i s no doubt
due to the f a c t t h a t t h i s Order i n C o u n c i l v e s t e d the
g e n e r a l a d m i n i s t r a t i o n of the t e r r i t o r y i n the Company
and i t was e v i d e n t l y c o n t e m p l a t e d that t h i s c a r r i e d w i t h
i t complete f i n a n c i a l r e s p o n s i b i l i t y .
The two d i v i s i o n s
of n o r t h e r n Rhodesia were amalgamated i n 1911 at the
r e q u e s t of the Company who had asked f o r the e x t e n s i o n
of the p r i n c i p l e of a d m i n i s t r a t i o n contained i n the
S o r t h E a s t e r n Order i n C o u n c i l of 1900 t o the whole
t e r r i t o r y on the ground t h a t " t h i s would have the
advantage o f t e r m i n a t i n g the anomalous s i t u a t i o n which
a r o s e i n 1899, when the Company at the r e q u e s t of the
S e c r e t o r y of S t a t e undertook r e s p o n s i b i l i t y f o r the
a d m i n i s t r a t i v e d e f i c i t s of n o r t h Western Rhodesia
w i t h o u t b e i n g v e s t e d a t the same time w i t h the r i g h t s ,
powers and d u t i e s of d i r e c t a d m i n i s t r a t i o n " .
I t i s now
a p p a r e n t l y claimed by the Company t h a t a l t h o u g h by the
Order in C o u n c i l of 1911 t h e y a c q u i r e d such r i g h t s ,
powers and d u t i e s of d i r e c t a d m i n i s t r a t i o n , the Crown i s
l i a b l e f o r the a d m i n i s t r a t i o n d e f i c i t s s i n c e t h a t d a t e .
The Compsny s case i s of course based on the
d o c t r i n e of a g e n c y e s t a b l i s h e d by the P r i v y C o u n c i l in
the Southern. Rhodesia land c a s e .
The t h e o r y i f a p p l i e d
to north western Rhodesia would produce however the
p a r a d o x i c a l r e s u l t t h a t i n r e s p e c t of the p e r i o d 1899­
1911 when the a d m i n i s t r a t i o n was i n the hands of the
I m p e r i a l Government, the Company a r e r e s p o n s i b l e f o r the
d e f i c i t s , whereas in r e s p e c t of the p e r i o d a f t e r the
T
a d m i n i s t r a t i o n was p l a c e d i n the hands o f the Company,
the I m p e r i a l Government a r e t o he r e s p o n s i b l e .
In
Eorth E a s t e r n Rhodesia a l s o b e f o r e the Company undertook
the d i r e c t a d m i n i s t r a t i o n , i t reimbursed the e x p e n d i t u r e
i n c u r r e d by the Crown i n a d m i n i s t e r i n g the t e r r i t o r y and
a f t e r w a r d s f o r a number o f y e a r s p a i d an annual c o n t r i ­
' but i o n t o the B r i t i s h C e n t r a l A f r i c a and Hyasaland admin­
i s t r s t i o n s towards the armed f o r c e s o f the P r o t e c t o r a t e
on the u n d e r s t a n d i n g t h a t t h e y would be c v s i l s b l e f o r
the m i l i t a r y d e f e n c e o f E o r t h E a s t e r n R h o d e s i a : and such
a c o n t r i b u t i o n seems d i f f i c u l t to r e c o n c i l e w i t h the
t h e o r y t h a t the Company i s i n s p o s i t i o n of a mandatory
e n t i t l e d to reimbursement.
A t t e n t i o n may a l s o be drawn
b o t h i n t h i s c o n n e c t i o n and i n c o n n e c t i o n w i t h Y e t a ' s
above mentioned p e t i t i o n , to the f a c t t h a t by the Lewanika
c o n c e s s i o n the Company bound i t s e l f t o p e r f o r m v a r i o u s
administrative services.
As r e g a r d s the e x t r a o r d i n a r y war e x p e n d i t u r e
the Company appear to c l a i m that as a P r o t e c t o r a t e
Rhodesia i s f r e e o f a l l r e s p o n s i b i l i t y f o r d e f e n c e a g a i n s t
f o r e i g n a g g r e s s i o n and t h a t i n any case the Company cannot
use t h e i r funds f o r the maintenance of s f o r c e on a c t i v e
s e r v i c e , s i n c e the Order in C o u n c i l of 1898 p r o v i d e d f o r
the d i r e c t c o n t r o l by the High Commissioner of the m i l i t a r y
p o l i c e forcesu
T h i s p r o v i s i o n was made as a r e s u l t of
the c i r c u m s t a n c e s connected w i t h the use o f t h e Company^
f o r c e s i n the Jameson r a i d .
I t i s c l e a r t h a t n e i t h e r of
the Compsny s p r o p o s i t i o n s can be a d m i t t e d , s i n c e the f i r s t
would be c o n t r a r y t o the g e n e r a l p r i n c i p l e r e c o g n i s e d
i n o i l o t h e r P r o t e c t o r a t e s and the second would mean t h a t
the Company i n v i e w of the s p e c i a l p o s i t i o n c r e s t e d by
t h e i r past l a c h e s were t o be p l a c e d i n s more f a v o u r a b l e
p o s i t i o n than the a d m i n i s t r a t i o n s of o t h e r p r o t e c t o r a t e s .
The p o i n t i n d i s p u t e r e l a t e s o n l y t o the d e f e n c e e x p e n d i ­
ture which i t i s r e c o g n i s e d can amount o n l y t o o s m a l l
p o r t i o n o f the t o t a l of about 2 m i l l i o n s which has been
advanced to the Company f o r t h e i r war e x p e n d i t u r e .
The Company have s u g g e s t e d , f o r the purpose o f d e f i n i n g
the C r o w n s c l a i m , that a l i n e could be drawn between
the defence and o f f e n s i v e e x p e n d i t u r e as a t t h e date
when G e n e r a l D o r t h e y t o o k command of the f o r c e s on the
n o r t h e r n Phodesia f r o n t i e r i n January 1916.
Although
the War O f f i c e a d v i s e d t h a t i t was not p o s s i b l e t o
d i f f e r e n t i a t e i n a m i l i t a r y sense between the defence
of n o r t h e r n Rhodesia by p u r e l y p a s s i v e means and the
more a c t i v e methods employed by G e n e r a l n o r t h e y , the
T r e a s u r y were p r e p a r e d t o a g r e e t h a t the m a t t e r should
be s e t t l e d on the b a s i s t h a t the Company should be
l i a b l e f o r a l l e x p e n d i t u r e i n c u r r e d i n r e s p e c t of the
p e r i o d b e f o r e G e n e r a l E o r t h e y t o o k over command, and His
M o j e s t y s Government should" be l i a b l e f o r the r e m a i n d e r ,
The s u g g e s t i o n was not however put to the Company, s i n c e
i n v i e w of the Company^ c l a i m t o reimbursement of the
a d m i n i s t r a t i v e e x p e n d i t u r e i n n o r t h e r n Rhodesia (which
would c o v e r the m i l i t a r y e x p e n d i t u r e ) the Buxton Committee
thought t h a t the q u e s t i o n of the l i a b i l i t y f o r the war
e x p e n d i t u r e shouldbe i n c l u d e d i n the r e f e r e n c e which
t h e y s u g g e s t e d should be made t o the P r i v y C o u n c i l .
r
r
r
One of the d i f f i c u l t i e s which a r i s e i n connec­
t i o n w i t h the proposed r e f e r e n c e to the J u d i c i a l Committee
i s the doubt f e l t as to the r e s p e c t i v e r i g h t s of the Crown
and the n a t i v e s i n E y s s o l a n d .
A considerable p o r t i o n of
t h i s t e r r i t o r y i s c o v e r e d by c o n c e s s i o n s p a r t l y f r e e h o l d
p a r t l y m i n e r a l h e l d by the Company under C e r t i f i c a t e s of
Claim granted by S i r IL Johnston s t the same time and i n
the seme terms ss those g r s n t e d i n r e s p e c t of Horth
Eastern Rhodesia.
These c o n c e s s i o n s a r e r e c o g n i s e d by the
Crown t o - d a y .
I t would f o l l o w from the v i e w s u g g e s t e d
above as to the l e n d in North E a s t e r n Rhodesia b o i n g s t i l l
the p r o p e r t y o f tho n a t i v e s , t h a t the p o s i t i o n would be
the same i n l l y s s a l a n d e x c e p t i n so f a r ss the Crown has
a c q u i r e d any l a n d r i g h t s t h e r e -through t r e a t i e s w i t h the
natives.
I t appears however t h a t t h i s view might p i e c e
the Hyosaland
Administration in s d i f f i c u l t p o s i t i o n .
A n o t h e r p o i n t which a r i s e s i n c o n n e c t i o n w i t h
t h e p o s i t i o n i n N o r t h E a s t e r n Rhodesia i s the d i f f i c u l t y
c r e s t e d by the - B r i t i s h South A f r i c a Company's g r a n t i n
1896 o f an area o f 10,000 square m i l e s o f l a n d i n the
P o r t Jameson d i s t r i c t t o the N o r t h C h c r t e r l s n d E x p l o r a t i o n
Company.
This g r a n t was made s u b j e c t to n a t i v e r i g h t s , ,
but i n v i e w of the 3 r i t i s h South A f r i c a
Company s l i m i t e d
r i g h t s i n N o r t h E a s t e r n Rhodesia the v a l i d i t y of the grant
i s open t o doubt and the importance of the q u e s t i o n i s
enhanced by the s p e c i a l i n t e r e s t token i n n a t i v e a f f a i r s
by the M i s s i o n a r i e s i n t h a t r e g i o n .
1
COLOHUL OEPICE.
19th January, 1923.