CO885-(11-13) — Page 437

PUBLIC RECORD OFFICE

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CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

Dent and Orer- beck concomİON.

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claim, now asserted by Spain under their new Treaty, to sovereignty over the posses- sions of the Sult in of Sulu on the north-east coast of Borneo. That on that part of the question Sir Julian Pauncefote was to refer us to the Foreign Office Memorandum of the 5th July 1873 (document No. 3), p. 1, the Foreign Office Memorandum of the 5th October (document No. 5), and the Foreign Office Memorandum of the 10th December (document No. 6), p. 6.

That several months before the date of the new Spanish Treaty the Sultan of Sulu had formally granted those territories, and his rights of sovereignty thereover, to Mr. Alfred Dent (a British subject) and Baron Overbeck (an Austrian subject, and agent to Mr. Dent) for valuable consideration, with a view to the formation of a British Company for the development of the resources of that country.

That Sir Julian Pauncefote was to refer us for the exact particulars and objects of that cession to the printed statement addressed by those gentlemen to your Lordship (document No. 8).

That the establishment of Spanish dominion in Borneo was strongly opposed by the Colonial Office (document No. 6, p. 6), and that we should observe that the Spanish Foreign Minister, shortly before the signing of the Protocol of the 11th March 1877, distinctly assured Her Majesty's Minister at Madrid "that his Ministry had no designs whatever on Borneo, and limited the claims of Spanish sovereignty to Sulu " and the adjacent islands." (Ibid.)

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That accordingly, in framing the Protocol, all expressions which might be held to include Borneo were carefully expunged or altered by the Representatives of England and Germany.

That the German Government had expressed their desire to be informed of the views of Her Majesty's Government in regard to the new Spanish Treaty, and that Sir Julian was to request that we would take all the documents transmitted herewith into our early consideration, and favour your Lordship with our opinion on the question whether Her Majesty's Government would be justified in protesting against the new Spanish Treaty, as regards its application to the Sulu Archipelago, or to the north-east coast of Borneo, or to the whole of the Sultan's dominions.

That your Lordship would be glad to be favoured also with any observations we might have to offer on the particular question raised as to the validity of the British Treaties of 1761, 1764, 1769, and 1849, as to which see Foreign Office Memorandum (document No 3, p. 1), and on the case generally.

That a map of Borneo and the Sulu Archipelago was attached to document No. 8. In obedience to your Lordship's commands we have the honour to

Report

That, in our opinion, Her Majesty's Government would not he justified in pro- testing against the new Spanish Treaty as regards its application to the Sulu Archipelago.

The Protocol of the 11th March 1877 is indeed silent as regards the pretensions of Spain, but those pretensions were well known at the time, and were, to some extent, a cause of the Protocol. The Spanish Government would, we think, successfully answer any protest against the right to make the Treaty in question with the Sultan based upon the terms of this Protocol, as the Spanish Minister did in his conversation with Mr. West (despatch No. 174).

The Sultan of Sulu, on his part, had the right to make the Treaty in question, unless he was prevented so doing by some existing Treaty with another Power, in this case with Great Britain.

The Treaties of 1761, 1764, and 1769, particularly when considered with the proposed Convention of 1849, cannot be relied upon as binding the Sultan; they were observed or not observed, as it suited the purpose of the English in those seas, and without any consideration of the interests of the other Contracting Party.

The Convention of 1849, Article VIII., requires that "this Treaty shall be ratified, "and the ratifications thereof shall be exchanged at Sulu within two years after this

date."

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The Treaty was for some reason never ratified, and in our opinion cannot be resorted to as binding the Sultan by the provisions of Article VII. "not to acknowledge the Suzeraintè of any other State, without the consent of Her Britannic Majesty."

In reference to the north-east coast of Borneo, or to the whole of the Sultan's dominions, the Ist Article of the Treaty between Spain and the Sultan applies to the Archipelago of Sulu and its dependencies.

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If, therefore, the north-east part of Borneo, or any other part of the Sultan's dominions, can properly be described as a dependency of the Archipelago, the Treaty will include them as passing under the sovereignty of Spain.

The rights ceded to Mr. Dent and Baron Overbeck by the Sultan of Borneo should, if included in the territory put under Spain by the Treaty, be confirmed by Spain, but your Lordship may perhaps have some hesitation in putting the case of Mr. Dent forward for the favourable consideration of the Spanish Government, since that act would be an admission of the rights of Spain. Mr. Dent and Baron Overbeck may therefore take their own course, as they may be advised, in their interest in a private undertaking out of Her Majesty's dominions.

In concluding this Report we beg to refer your Lordship to a former Report of the Law Officers of the 26th May 1874. (Print, Part I., pp. 37 and 38.) That Report refers to the several Treaties between Spain and Sulu, and Great Britain and Sulu, and to the course of action or inaction followed by the British Government from time to time in reference to the sovereignty of the Sulu Archipelago claimed by Spain.

We entirely agree with the opinions given in that Report.

We have, &c.

The Marquis of Salisbury, K.G.

&c.

&c.

&c.

(Signed)

JOHN HOLKER. HARDINGE 8. GIFFARD. J. PARKER DEANE.

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