Conqueror and Conquered before the Judicial Committee of the Privy Council
During the first two decades of its operation, the company was seen to be contravening the laws of England for a few reasons. Its solicitors responded to allegations of trespass and damages in Portuguese territory,[1302] conspiracy to overthrow the Republic of South Africa^[1303] as well as of inequitable mortgaging and diamond-licencing practice^[1304] and they settled a number of disputes out of court.
None of these enquiries brought the question of Lobengula’s sovereignty into the scope of English jurisprudence, however. What did that were the demands of the Southern Rhodesian legislature, between 1907 and 1914, for more clarity about the title of the crown to the unalienated lands of the region, and the apportionment of revenues derivable therefrom.[1305] [1306]When the Privy Council met to decide ?on the matter of Southern Rhodesia’ on August 4th of 1914, it was uncertain whether or not an African case should even be represented in court. Whereas Leslie Scott, a member of the committee for the Anti-Slavery and Aborigines Protection Society from 1912, appeared optimistic about the prospect, the solicitor general, Viscount Buckmaster, retained doubts about how to go about identifying the ?real Native residents’ of the unalienated land.51
Here you have a vast territory sparsely occupied by Natives. You have the King [Lobengula], and he makes grants, and a Company comes - the Company administers the affairs and controls the laws in that area. Do the Natives together, as a group, as a body of Natives, have the rights in the soil? Is the soil of the land theirs? It is the King’s? Whose is it? The Natives say you cannot determine the question of to whom the soil of this vast territory belongs unless you consider the question of whether there are not collective rights in the whole of the Natives to the soil.[1307] [1308] [1309] [1310] [1311] Difficulties of this nature revealed why, in the end, it was unanimously resolved to appoint counsel to the African claim, alongside the three other claimants in the Special Reference in the Matter of Southern Rhodesia between the British South Africa Company, the Crown, the Elected Members of the Legislative Council of Southern Rhodesia, and the Natives Re Southern Rhodesia. Scott's case for the African land claim asked the most questions of the English common law and its custodians, those learned Lordships appointed to and representing the Privy Council. His case began with ?the Native title'. There had been, and still was, ?a large number of different tribes' in Southern Rhodesia, Scott declared, and these tribes could not have been bound by Lobengula's concessions, for African property rights in Rhodesia before 1893 had been enjoyed in spite, and not because, of Lobengula's regime. From this basis, Scott presented African title in private law, as something vested not with ?the whole body of Natives', but vested in each of the many ?individual tribes' and ?subtribes', which had each been enjoying their own ?complete titles' before, and after, the war against Lobengula. 54 ?[T]he relations between a tribe and the land which it occupied can only be described by an English lawyer as one of ownership', he declared.55 Individual agriculture had thrived in each of these tribes, but the land under use was still owned communally, with no tribes ?under the domination of Lobengula in so far as the allotment and occupation and so on goes'.56 The ?native law of alienation' was being glossed over by the company and the crown, Scott admonished. As he explained it, as Lobengula enjoyed ?no right to alienate', unless with the consent of each of the ?principal indunas', it therefore fell short of Lobengula's sovereign capacity to enter into concessions for land rights in Matabeleland (and much shorter for land in Mashonaland, which, according to Scott, was too far away from Bulawayo to be under Lobengula's sway).[1312] Lord Sumner struggled to make sense of the political configuration of Mata- beleland and Mashonaland, which left him grasping for analogies. Upon many of these points of law, counsel for the company, led by Henry Erle Richards KC, Chichele Professor of International Law and Diplomacy at the University of Oxford, differed profoundly. These tribes, like most other savage tribes, had their social life organized on tribal principles, and at the root of it all was the patriarchal system. The rights of the natives were rights of dependence, not of independence. Lobengula was the patriarch. Did their rights ever go beyond anything more than the rights of a child? A child had no remedy if the father mismanaged the family estates, or disposed of them, and it was clear that Lobengula disposed of the use of the lands. If that was so they were a long way from anything in the nature of ownership. The power of Lobengula was destroyed, and with him the patriarch disappeared - nothing was left of the patriarchate, of the Kingship, of the chiefship.[1317] These would be the last serious remarks on the African claim - this errant jumbling together of discrete arguments plucked, almost certainly, from Henry Sumner Maine's lectures on the evolution of social institutions and ancient law - before proceedings wrapped up on May 2nd. On June 29th, Sumner delivered his judgment, on behalf of the Judicial Committee, that the company enjoyed no ?dominium or estate in or title to the said unalienated lands', that the settlers had no claim to any ?public domain', and that ?the natives' had no claim to ownership either. The unalienated land belonged to the British crown; only the British crown could decide what became of it.6[1318] This involved a peculiar assessment of the incidents of public and private legal personality that attached to Lobengula: perturbed by the solicitations of the white suitors, who crowded round him, bearing gifts, to the value of which he was keenly alive, and pressing him for concessions, the nature of which he but dimly understood. As for his people, they were uncomprehending but apprehensive spectators[1319] Of these ?white suitors', Sumner was careful to distinguish between those who sought public treaties and those who sought private contracts. A concession could not have the character of ?a title deed to the unalienated lands', but for Sumner could have ?some value [for] helping to explain how and why the Crown came to confer the administration of Southern Rhodesia upon the Company'[1322] This is unintuitive on its own, but in the context of Sumner's wider judgment - the entirety of which can be read as one long exercise in identifying the omnipresence of crown sovereignty - the assessment was as simple and effective as the dogma of any creationist: for, because Rhodesia exists, sermonised Sumner, there was proof of the crown. Those who knew the facts at the time did not hesitate to speak, and rightly so, of conquest, and if there was a conquest by the Company's arms, then, by well-settled constitutional practice, that conquest was on behalf of the Crown. It rested with Her Majesty's advisers to say what should be done with it.[1323] [1324] But this, like the rest of Sumner's evidence for supporting the crown's right to the unalienated territories, was directed only towards the company, and not used to defray the African claim. Sumner found no need to develop a claim against the indigenous owners because such a claim was never established in the first place. ?Whoever now owns the unalienated lands', Sumner declared, ?the natives do not'89 But he went even further than this, applying such a property deficit to Matabeleland and Mashonaland retrospectively as well. There was no African title now, but also, there never was. ?Recognition could give no title where none existed', as he put it in his assessment of the concessions.[1325] [1326] Bespoke anthropology was moved into place for proof, central to which was a stadial characterisation of the traditional economy that may have been vogue during Sumner's youth, but which had become far less vogue, it is fair to say, in his dotage. ?The community was tribally organised. It ha[d] passed beyond the nomad stage, though still remain[ed] fluid'. A ?rude agriculture' was practiced. ?Under a system of short tillage and long fallows no occupation lasted long', and so it was with the ?aborigines' of Southern Rhodesia. There was no individual wealth, and there could be no ?transferrable property in tribal land'. This was all to be resigned to the historic past. Political and social upheavals had recently brought about the disintegration of this system, and now, spoke Sumner, African society acquired a different character. Besides, there were doubts, in his mind at any rate, whether or not ?the Matabele or the Mashonas of to-day are [...] identical with the Matabele or the Mashonas of more than twenty years ago'. ?Between 1893 and 1914', he explained, ?there had undoubtedly been much migration, emigration, and immigration of natives in Southern Rhodesia, and the aborigines of Lobengula's time have both changed and been scattered'?1 Descriptive and eccentric, these observations were offered only before an admission of their irrelevance. None of this knowledge of African society mattered because the society in question was uncivilised. AmaNdebele and amaShona enjoyed no rights in the English common law because they did not reach the standards implicit in it; or, to reproduce the most telling (and subsequently quoted) of Sumner's passages in full: The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. In the present case it would make each and every person by a fictional inheritance a landed proprietor “richer than all his tribe.” On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest, but the position of the natives of Southern Rhodesia within it is very uncertain; clearly they approximate rather to the lower than to the higher limit.[1327] This unbridgeable gulf, plus the passage (rather than the content) of the Orders in Council, ?makes further inquiry into the nature of the native rights unnecessary'. On these grounds, Scott's argument for the continuity of unceded private rights in the unalienated land was invalidated, taking the form of a piece of legal rhetoric too impervious to paraphrastic representation not to offer in full: If [the African land rights] were not in the nature of private rights, they were at the disposal of the Crown when Lobengula fled and his dominions were conquered; if they were, any actual disposition of them by the Crown upon a conquest, whether immediately in 1894 or four years later, would suffice to extinguish them as manifesting an intention expressly to exercise the right to do so.[1328] [1329] [1330] Legal thought permits all kinds of sophistry in the interests of widening the coverage of established principles either to qualify or disqualify unfamiliar types of claimancy. The outcome of this controversy about African title in Matabeleland tended definitively to its disqualification, both in the English common law and in the mutated Roman-Dutch law of Southern Rhodesia. Neither this result, nor the method of reaching it, was really all that surprising. 3