The two Commissioners were to inquire inter alia ‘whether the position of Sir James Brooke, either as holding that possession of the Sultan of Borneo, or, as he alleges, as an independent Rajah, holding it by the free choice of the people, be compatible… with his character of a British subject’.
Brooke maintained that although the Sarawak government was de jure independent, since there was the deed of payment of (one thousand pounds) on demise, de facto it was absolutely independent, since it had all the ordinary powers of a Government, such as the power to conclude treaties and make war…
The view was that Sarawak was not entirely independent of the Sultan of Brunei. While in the management of Sarawak, Brooke appeared to be altogether independent of, and free from all interference on the part of the Sultan, there was no doubt Sarawak was formerly a possession of the Sutlan, and as there had never been a declaration of independence or other public notification of the position, foreign States, in acknowledging its independence, would possibly be in danger of committing an uncalled-for act of aggression against the Sultan.
Commentary: Strong political and other interests in Britain opposed Brooke’s activities in Sarawak, purportedly with cries for Brooke to be brought back to be tried for treason.
FURTHER DOUBTS CAST UPON BROOKE’S STATUS UNDER ENGLISH LAW
The British Government continued to deny recognition to James Brooke in 1856.
Her Majesty’s Government hardly believes that Sir James Brooke will place himself in direct antagonisn to Her Majesty’s Government by refusing to allow her to act within the territory which is the subject of his rule, and therefore compel Her Majesty’s Government to make known to the natives that no British subject can exercise sovereign authority without the permission of his sovereign, which permission has not been obtained by him, and that consequently, he is against the law of England, whereas if he avoids insisting upon recognition of his independent sovereign authority which is inconsistent with his position as a British subject, his supreme authority at Sarawak upon whatever basis it may rest, whether upon the grant of the Sultan or the choice, will remain undisturbed and unquestioned
Commentary: By 1856, it was established that British subjects were not entitled to own overseas territories in their own right. The British government had proclaimed in 1763 that it forbade British subjects from acquiring land from native American tribes without government approval. Similarly, the British government had refused to acknowledge any rights being vested in British subjects under ‘treaties’ or other arrangements made with indigenous peoples in Australia and New Zealand. In general, the acquisition of territory by a British subject was not recognised under British law (Tarring, the Law Relating to Colonies, London, Stevens and Haynes, Fourth Edition, 1913, p.23).
