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In Conf. 8614. (F.) Memorandum by Sir C. Hill of April 8, 1904. (G.) Memorandum by Mr. V. Wellesley, April 8, 1907. Conf. (with 11349/07).
61648
PUBLIC RECORD OFFICE
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Reference :-
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
OPINION.
1. We are of opinion that the contention of His Majesty's Government that the boundary between the Congo Free State and Uganda should coincide with the supposed position of the 30th meridian is strong enough for submission to a Court of Arbitration with a fairly reasonable chance of success.
It is clear that at the date of the Treaty the Government of Great Britain were mistaken as to the true position of the 30th meridian. It is certain that the King of the Belgians did not then know the true position of that meridian, and it is probable that he, like Great Britain, was mistaken in the position, if any, which he then ascribed to it. The Treaty, however, is founded on the assumption that the position of the 30th meridian was then ascertained or approximately ascer tained, and arrangements were obviously made between the parties as to particular districts on that assumption. Thus it was agreed that Great Britain should have the lease of a 25-kilom. strip between Lake Tanganika and Lake Albert Edward. It must have been within the knowledge and intention of both the parties that the object of this lease was to give access as between British Central and British East Africa. This result could only be achieved if Lake Albert Edward were partly within British East Africa, and that it should be so treated was apparently the intention of both parties. It now appears that it is to the west of the 30th meridian, and if the true position of that meridian is to be taken as the boundary, the lake is outside of British territory altogether, and the connection We think, therefore, that in selecting between it and Lake Tanganika is useless. the 30th meridian as a boundary both parties were acting under a mistake of fact which, now that the true position of the meridian is ascertained, gives rise to a claim either for rescission or for rectification, so that the clear purpose and con- sideration of the Agreement may be expressed by its words. There would equally be a good claim for rescission or rectification if it were the fact that the Congo Free State knew that, on entering into the Treaty, Great Britain agreed to the boundary in question on the assumption that both parties intended such boundary to be one which would place Lake Albert Edward within or in connection with British territory.
2 and 3. We think Great Britain has a claim to the Mfumbiro district against either Germany or the Congo Free State sufficiently strong for submission to a Court of Arbitration.
In our opinion it would be preferable to prefer the claim against the Free State.
4. We think not.
Law Officers' Department.
September 2, 1907.
JOHN.L. WALTON.
W. S. ROBSON.
No. 85.
(BRITISH CENTRAL AFRICA l'ROTECTORATE,)
LAW OFFICERS to COLONIAL OFFICE.
[Re Urquhart and Zander-removed from the Protectorate under the Immigration Whether the British Commissioner was Restriction Ordinance, 1905. justified in ordering their removal from the Protectorate.]
Royal Courts of Justice,
September 2, 1907. MY LORD,
WE were honoured with Your Lordship's commands, signified to us in Mr. H. W. Just's letter of 28th June last, stating that he was directed by your Lordship to transmit to us the papers noted below respecting the case of two men, named Urquhart and Zander, who had been recently removed from the British Central Africa Protectorate under the provisions of the Protectorate Immigration Restriction Ordinance, 1905.
That the facts of the case as disclosed in these documents might be summarised as follows:-
Urquhart and Zander were travelling northwards from British South Africa on an exploring expedition; while in Portuguese East Africa, near the borders of the British Central Africa Protectorate, a dispute arose between them and some natives as to the price of a leg of pork, which Zander finally appropriated without payment. On this an altercation ensued, and finally Zander fired a shot which killed one of the natives. Zander and his companion did not report the death to the Portuguese authorities, but, as soon as possible, crossed the border into the British Protectorate. On learning of the occurrence the Portuguese Governor at Tete telegraphed to His Majesty's Commissioner for the British Central Africa Protectorate at Zomba asking that the two men should be detained pending an inquiry. But before any action could be taken to stop them Urquhart and Zander had crossed the border and reached Blantyre; and instructions were then given that they should be detained as undesirables within the meaning of the Immigration Restriction Ordinance of 1905, pending further communication from the Portuguese Government."
That the Attorney-General of the British Central Africa Protectorate advised the Commissioner that it would be impossible to arrange for the extradition of Urquhart and Zander to Portuguese East Africa, since at the time both men were believed to be British subjects, and Article III of the Treaty of 1892 between His Majesty's Government and the Portuguese Government for the mutual surrender of fugitive criminals expressly excluded the surrender of nationals.
That it was subsequently ascertained that Zander was probably a German subject: but that even assuming that his extradition would have been otherwise possible no arrangements had hitherto been made for extradition between the Protectorate and Portuguese East Africa. That there was thus no question of actually extradit- ing them. That at the same time the Commissioner felt that it was impossible to allow the two men to remain in the Protectorate in view of the bad impression likely. to be produced on the natives if no action were taken, and that he decided to issue an order for their removal from the territory under the Immigration Restriction Ordinance. That it appeared to have been impossible to put them over the border of either North-Eastern Rhodesia or German East Africa, because they alleged that they would be unable to get back to South Africa on account of lack of funds, and that they were accordingly given the option either of proceeding by the rivers Shire and Zambesi to Chinde, which was Portuguese territory, where the British Government leased certain ground as the port of the Protectorate, and whence they could have returned to a South African port, or of being put over the Protectorate border in the neighbourhood of Chiromo. That they chose the latter alternative. That the Portuguese authorities were simply informed that the two men were being removed from the Protectorate, but that no further particulars were given, and that they were soon afterwards arrested and brought to trial in Portuguese East Africa.
V 97 109 D&S & 30696
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