This Special Number of the Journal contains four articles concerned essentially with analysing the process of colonial law-making in the form of legislation dealing with certain key subjects. The four studies examine varied topics, touching on most of the former British dependencies in Africa north of the Zambesi, but they have in common a reliance on the official archives as a source in which the “secret” history of certain important enactments can be traced. The first two articles are directly related in content: Zabel and Morris examine the remarkable history of the marriage legislation in African dependencies—a notable example of attempted uniformity in colonial acts which led, however, to often protracted exchanges with local officials who anticipated special problems if the standard form of model legislation was applied in their territories. Those exchanges are distanced from us today not merely by time—for they commenced almost a century ago and were almost over by the time of the First World War—but also by their apparent unreality, even irrelevance, when viewed with the benefit of hindsight; for now we can perceive that the marriage laws in question have had little formative impact upon the direction or character of social change in Africa and, in particular, there appear to have been few obvious consequences flowing from the subtle variations in the statutes adopted as a result of the arguments which arose between the officials and which were often forcefully conducted, with forecasts of dire consequences if one or another provision was included or omitted.

The creation for the island of St. Helena of a marriage law destined to become the model for marriage ordinances throughout the British Empire has been dealt with in an earlier issue of this Journal. Celebration upon certificate from the Registrar either before the Registrar or in a licensed place of worship by an authorised minister in accord with the “Rogers formula”, (after the draftsman of the St. Helena law) was to become the standard for marriages in the colonies. The adoption of the St. Helena model in Ceylon, with some embellishments, has also been described. Further refinements were then made in the use of the model for Hong Kong.

Professor Zabel has traced the genesis of the Gold Coast/Lagos Marriage Ordinance of 1884. This article will show the manner in which this Ordinance was to proliferate (subject to modifications in content and application) to all British territories between the Sahara and the Zambesi, with the one exception of the Gambia. The story is a complex one, to which full justice cannot be done in the scope of a single article, and it is also one which throws interesting light on the evolution of colonial legislative policy. It will, for example, be noted that the legislation was not imposed upon the territories as part of any formulated policy for the introduction of English-based marriage law to replace the indigenous customary law, nor was it brought in at the request of the missionaries in their desire to eradicate polygamy; indeed in some territories missionaries were highly critical of its introduction, fearing that it would deter Africans from Christian marriage. In fact, the initial impetus for its introduction came from the administrators in West and East Africa who merely wanted legislation which would get over shortcomings in the received English law, which in particular did not appear to cover marriages between non-Africans who were not British subjects.

The idea that certain highland areas of the East Africa Protectorate should be reserved for European settlement dates effectively from the appointment of Sir Charles Eliot as Commissioner in 1901. Although a number of European settlers had arrived in the Protectorate in the last decade of the nineteenth century, it was generally felt in official circles that the country was not suitable for European settlement, but that Indian settlement, on the other hand, should be actively encouraged. Eliot, however, took the view that, while Indians should be allowed to settle in the low-lying areas near Lake Victoria and along the coastal strip, the Highlands were pre-eminently suitable for European settlement and indeed should be specifically reserved for that purpose. In May 1903 he instructed his Land Officer not to grant rural land in the Highlands to Indians and thus laid the basis of the White Highlands policy.

Shirley Zabel's account of the genesis of the Gold Coast Marriage Ordinance of 1884, published elsewhere in this Journal, demonstrates how much a legislative history can teach us about the way in which colonial law-makers went about tackling the formidable problems which had to be faced in what were still the early stages of modern British administration in West Africa. It is proposed in this article to turn to colonial Zambia and to look at the very different field of mining legislation, concentrating on the middle and later period of colonial rule before and after the Second World War. Compared with the early days in West Africa, bureaucratic techniques had been refined and communications greatly improved. This did not always lead to speed in the legislative process. Zabel has shown that the Gold Coast Ordinance was six years in the making; the Northern Rhodesia Mining Ordinance had a gestation period, including several miscarriages, of no less than thirty years prior to its enactment in 1958, despite the admitted need in the 1920s to replace obsolete legislation dating from the days of British South Africa Company rule. The span of time involved, however, has advantages for the legal historian—an opportunity to examine in relation to a single ordinance the colonial legislative process and the forces which, over an extended period, affected the shaping of a vital piece of legislation. It is hoped also that the fruits of this examination will serve as a useful background to studies of modern Zambian mining law.