‘Consular jurisdiction in Persia.’ [‎6v] (12/36)

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When, for example, an Englishman is a defendant in Persia, it would seem that the
suit is not tried, but is "referred" to the English Legation or Consulate, and becomes a
matter of correspondence, polemical or peaceful, as the case may be; whilst, on the other
hand, if the defendant be a native of Persia, the suit is " referred" for the consideration
of the Minister of Foreign Affairs of the Shah. Such references and considerations
do not involve a judicial determination, but are rather provocative of indefinite dis
cussion.
There is virtually, therefore, no tribunal or forum where suits of the description in
question are decided. The above system is admittedly not one established by treaty, but
has grown up so as to claim to be termed " usage " under the peculiar circumstances of
the country.
Mr. Thomson observes, "It remains for Her Majesty's Government to decide whether
*' the terms of the treaty or the practice which has been so long established is to form
« the basis of the Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. ." On this it occurs to me to observe that the reason
why the terms of the treaty referred to have not been applied is, that neither the material
for forming the tribunals, nor, indeed, the common idea of judicial authority nor prin
ciples of justice exist in Persia. Hence, treaties have been abandoned, and an un
satisfactory, imperfect, and temporary practice has been substituted, which is called
" usage."
This so-called usage, however, is so difficult to reconcile with reason or connect with
principle, that when one comes to speak seriously of basing an Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. thereon
one is seriously embarrassed. Nevertheless, it would seem that, before an Order in
Council can well be framed for the institution of Consular Courts, it will be desirable to
define the limits of their jurisdiction, and with this view to understand whether the usages,
as above described, are to be be accepted as governing or indicating the practice of Consular
Courts in Persia.
Thus it must be decided whether Consular Courts are to be instituted as tribunals with
entire jurisdiction over all suits which are now submitted by 4 'reference " and for "dis
cussion " before the British Consulates and Her Majesty's Minister at Tehran. No
provision of an Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , I may remark, can assume to create or to affect juris
diction which does not already belong to the British authorities. And there is a great
difference between the Persian Government submitting a case to discussion or the considera
tion of a diplomatic officer and their committing it unreservedly to the positive jurisdiction
of a formal foreign tribunal. * * * *
If satisfactory Mixed Tribunals could be instituted, which I am now inclined to fear
will prove a work of almost insuperable difficulty, the system of Consular Courts in Persia
could be assimilated with that in Turkey, and the Consular jurisdiction would be limited,
so that in all cases in which a native or a foreigner, whether plaintiff or defendant, are in
litigation, the native and not the Consular Tribunal would have jurisdiction. But if satis
factory An East India Company trading post. Mixed Tribunals cannot be instituted (and even in Turkey they are the reverse of
satisfactory, and Persia, I understand, is in a less favourable condition for administration
of justice than is Turkey) it has to be decided what is to become of those cases where
Persian subjects are defendants.
Probably, Sir P. Prancis suggested, Mr. Heilly would wish to be iu-
structed on this point before he commenced his Draft Order, though he
might possibly find it feasible to prepare an Order without the question
of jurisdiction being finally decided.
Sir P. Prancis dissented from Mr. Thomson's view that, except on the
littoral of the Gulf, English law should be applied, because (1) litigation
in the interior was comparatively trifling, and it was not worth while
preparing a system for the smaller number of cases; (2) it would be
objectionable to have two systems of law operating in one country;
(3) he thought the Indian system, in many respects, better suited to
Persia; and (4) though the English law was the one to which he was
most habituated, yet, in his opinion, " neither in its commercial, civil, or
" criminal character was it a system which should be introduced into a
" foreign country or perpetuated in its present shape anywhere."
Sir. P. Prancis attached great importance to the establishment of a
Court of Apj^eal at Bushire, to which Mr. Thomson objected. On this
point, he wrote,—
Mr. Thomson objects that the Persian Government would not consent to causes heard in
the capital being referred in appeal to a provincial Court. I think in this there must be
some misunderstanding, for the Persian Government would have nothing to say on this
subject, unless, indeed, Persian subjects appeared in these causes as plaintiffs or defendants,
and this would only occur on the assumption (which I do not yet make)^ that Consular
Courts of First Instance will be seized of cases in which Persians were plaintiffs.
If, however, it is held that the objections of Mr. Thomson are sound, a Court of Appeal
might be instituted at Bushire, for all districts except Teheran.
Nor was it suggested that there should be a Court of Appeal at Bushire from Persian
mixed commercial tribunals, but from Consular Courts. The Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. will not have
to deal with the constitution or working of local mixed Courts, a subject which has been in
troduced into this discussion only collaterally, and it can make no difference to the Persian