asked the Attorney-General whether he will make a further statement with regard to the conduct of the case for the Crown in the North Charterland Concession inquiry, in view of the repetition of the allegations dealt with in his answer of 9th November
§ The ATTORNEY-GENERAL
As my conduct of the Crown case in the North Charterland Inquiry has been so seriously attacked, I must record a somewhat full account of my connection with the case.
The North Charterland Exploration Company claimed an absolute freehold of 10,000 square miles and that there was no right in His Majesty to set aside native reserves therein. They brought a Petition of Right, but the merits of the case could not be decided because the Crown succeeded on a demurrer that the Order-in-Council of 1928 was a complete 996W answer. The company thereupon asked for a public inquiry, and Lord Passfield promised that, if certain necessary conditions were accepted by the company, such an inquiry would be held. The conditions and terms of reference settled by my predecessor were communicated to the company by a letter of the 17th September, 1931. The company objected to the conditions. On the 1st December the Secretary of State, who had recently assumed office, had a consultation with the former Attorney-General and myself and decided that a public inquiry was to be held as far as possible as though it were an ordinary action in the Courts. The Crown was to claim no privilege and every possible facility was to be given to investigate any claims against or by the Crown which could not be dealt with by litigation owing to the Order-in-Council of 22nd March, 1928. He also decided to waive the requirement that the company should agree in advance the consequences which would follow on the findings of the Commissioner and to leave that question to be considered when the results of the inquiry were known and that the company should be informed that he would regard himself as free to consider the whole matter on its merits in the light of the Commissioner's findings, but could not in that case be bound by any pledges which had been given to the company in connection with the agreement of 29th September, 1923, or the Order-in-Council of 1928. The chairman accepted these terms on behalf of the company.
I conducted the case on behalf of the Crown, instructed by the Treasury Solicitor. In order to carry my instructions into effect, the very unusual course was taken of disclosing all relevant documents in the Colonial Office and Foreign Office, however confidential, and placing them without exception at the disposal of the company's solicitors. My right hon. Friend the First Commissioner of Works, who had conducted the negotiations of 1923, undertook to give evidence, and arrangements were made to obtain the assistance, as far as possible, of any officials who had been connected with the matter. One of these gentlemen was certainly not in a condition to give evidence, and I understand that this was not disputed. A second, who had been invalided from the public service in 1929 after a long and serious illness, had by Lord Passfield's direction been visited by two 997W of his officers, one a barrister of long standing, to ascertain what evidence he could give. In reporting to Lord Pass field these officers stated that, in their opinion, the condition of their former colleague was not such as to justify the risk of asking him to give evidence, since their definite impression was that, while his mental faculties were unimpaired, any nervous or physical strain would be dangerous.
When, during the preliminaries of the inquiry, I was engaged in seeing that all material evidence in the possession of the Crown was made available, I reviewed the question of calling this particular ex-official and came to the definite conclusion that I would not be justified in imposing any strain on him. I was asked by the Colonial Office if a medical certificate should be obtained, but replied in the negative, as I considered that my assurance would be accepted, and that, if a certificate was desired, steps to that end could be taken. I was not asked for one at the inquiry. The allegation that I made any statement to the effect that this ex-official was in a lunatic asylum is wholly untrue; and Mr. Green informs me that it is equally untrue that he made any such statement. As the Commissioner found wholly in favour of the company's case on the negotiations for the agreement of 29th September, 1923, on which alone the ex-official could have given evidence, it is difficult to see how his absence could possibly have prejudiced the company in connection with any claim by or against the Crown. I may explain that by this agreement, to which the North Charterland Company was not a party and by which it was not bound, the Crown promised Ole then administrators, the British South Africa Company, to recognise the title of the North Charterland Company while preserving what the British South Africa Company and the Colonial Office believed to be the rights (under the Order in Council of 1900) of the Crown to set aside native reserves. It is obvious that, if it could be shown that the British South Africa Company had held itself out to the Secretary of State in 1923 as having authority to bind the North Charterland Company, this fact would have been a valuable asset to the Crown. It would have been a dereliction of my duty not to have made use of such a position, if available. My predecessor 998W in connection with the Petition of Right, and both he and I in connection with the inquiry, considered this matter, and both came to the conclusion that there was no evidence on which to base such a claim.
The result of the inquiry was briefly as follows: The company's claim to have received a title to land in 1895 failed. The Commissioner however, found that a good title was given in 1906, but, subject to the right of His Majesty under the Order in Council of 29th January, 1900, to set apart such portions of the said land, as were thought fit, for native reserves without compensation, provided that these reserves, while sufficient for the requirements of natives inhabiting the tract, did not include land for immigrants from Portuguese territory after 1910 other than natives returning to their tribal areas; or land for a substantial export enterprise. The Commissioner expressed no opinion whether in fact the reserves did include such land. In view of this finding the fourth question submitted to the Commissioner is of vital importance. The question was as follows:Whether at any time the North Charterland Company ratified the said Agreement or acquiesced in or accepted the inclusion in the said Agreement of Articles 3 (e) and 3 (f), and if so when, how and in what circumstances.
In answering this question the commissioner found as follows:I must therefore report that by the letter of the 10th February, 1927, the North Charterland Company, being aware that Articles 3 (e) and 3 (f) had been inserted without authority in the agreement of the 29th September, 1923, and that the company was not bound or affected by the terms of those Articles, did in fact acquiesce to this extent that the company accepted the proposed provisions for the allocation of native reserves; in other words, the company acquiesced in an administrative step based on the assumption that the Crown had the right without compensation to set aside out of the tract such native reserves as it thought proper. The acquiescence in question was partly due to a desire to have the title to the tract, questioned as it had been by the Colonial Office letter of the 12th August, 1926, definitely admitted; and partly to a desire to avoid the costly proceedings which might have been necessary to establish the title.
The Commissioner further found that:As a matter of law I do not think that the North Charterland Company were justified in withdrawing from what was in sub- 999W stance a settlement or compromise merely because facts had come to their knowledge tending to show that the company were deriving little benefit or advantage as a result of it.
I wish to take the opportunity of stating that the Commissioner's assumption that the correspondence of 1895 was not known to the Colonial Office in 1923 is not, in fact, correct. The archives were and are in the Foreign Office and copies were available in the Colonial Office, though it is clear, having regard to the Commissioner's finding on points of law, that the Colonial Office placed a wrong interpretation on the letters. This, however, does not dispose of the doubts which were entertained as to the company's title, inasmuch as the Commissioner found that there were other reasonable doubts which might have existed at the time as to the title of the North Charterland Company.
On receipt of the Commissioner's findings, the Secretary of State consulted me on the proper way of exercising the discretion, which, by the arrangement accepted by the company lay in him.
I advised as follows:
- "(1) In my opinion it is clear that the answer of the Commissioner to question 4, in law, disposes of the whole of the company's case. That is to say, if the company had been in a position to sue the Crown in proceedings in which neither any privilege of the Crown, nor any Order in Council had been relied on, the company would have failed in their Action.
- (2) I think the Secretary of State is right in regarding himself as a trustee. Assuming this to be his position, I not only think that the Secretary of State is properly entitled to rely upon the answer to question 4 as finally determining the matter, but in my opinion he is bound to adopt that attitude.
- (3) Even assuming the Secretary of State does not regard himself as trustee, he is reasonably entitled to take full advantage of the answer to question 4 and to bold the company to the terms of the settlement. The facts stated by the Commissioner in paragraphs 63 to 72 are such as in my opinion to make it quite unreasonable to expect the Secretary of State not to hold the company to the bargain which they made."