‘Consular jurisdiction in Persia.’ [‎7r] (13/36)

Government where a dispute between two foreigners shall be finally settled in appeal—
whether at Bushire, Teheran, or Bombay. At any rate, a Court of First Appeal at Bushire
from Consular Tribunals in the littoral would be, I submit, unobjectionable.
A capable Judicial Appeal Court at Bushire would give unity to the proceedings in the
Courts below, and would operate as a check as well as a guide to Consular Courts of the
littoral in their earlier development. On the ultimate appeal to Bombay it would seem there
is unanimity.
Sir P. Erancis concluded with some remarks on the general question
which indicated a considerable change of opinion on his part. They will
not bear abbreviation, and were as follows :—
I desire to revert, for one moment, to the general consideration of extra-territorial juris
diction in Persia. If we assert throughout Persia privileges in regard to the administration
of justice and legal procedure for British subjects, which we think, and no doubt rightly
think, would be beneficial both for Persia and Her Majesty's subjects, yet there is an atten
dant evil in so doing which results from the favoured nation principle. Any privilege which
we claim or exercise will be claimed by other Governments, and the privilege which may
fairly be used by us may be abused by others. This was the case in Egypt. I happened
to know that natives of that country and the Egyptian Government would have been content
to continue the "extraordinary usages" in jurisdiction if they had been confined to the
English Courts. But where seventeen other nationalities claimed, and many of them abused,
these privileges, the system became intolerable, and to escape from it much trouble has been
and is experienced.
It is desirable, therefore, to reflect how far temporary advantages derived from an institu
tion of tribunals based upon large extra-territorial pretensions will be a real benefit and of a
lasting character in a country like Persia, surrounded as she is by a strong Government, ready
to take advantage of any instrument to diminish the authority of the Government, and dis
credit her independent and internal power.
1 have, indeed, on reflection, seen some reason to doubt the conclusion I came to with
Sir. A. Kemball, Sect. 10 of our Report. We there say—"The establishment of one and the
" same Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. throughout territories subject to the sovereignty of the Shah would,
" we think, bo indispensable." I should now, I think, hesitate to affirm this, and I should
rather submit, with deference, whether the applicability of the Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. should not
be to the " Persian littoral" only.
I think that if the littoral of the Persian Gulf The historical term used to describe the body of water between the Arabian Peninsula and Iran. only, at first, should be brought under the
the influence of a judicial system based upon the usage, there would be less chance of pro
voking discussion and diplomatic disputes upon the judicial rights in question, or of raising
the suspicions of the Persian Government. The Report of the Government of India
(Sect. 18 of Report), "to keep the arrangements regarding the Persian Government quite
distinct from those in the interior of Persia," is one which I am inclined now to think is the
sounder view r . I am not, however, prepared to agree that it would be desirable by one
Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. " to establish a jurisdiction for the whole water and littoral of the Persian
and Oman Gulfs." It seems to me, then, that by excluding the capital and the interior of
Persia from the operation of the proppsed Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. we might escape from grave
questions with the Shah's Government, for probably " usage" might be assumed as the
basis for the littoral, without provoking discussion or raising the question of the institution
of new Civil Tribunals. We should also be providing for what are the real wants of British
subjects and interests. The experiment would be tried where it could have the best chance
of success, and the conditions are most favourable. Moreover, if found successful, it might
be developed, supposing the necessity was hereafter.
The next stage in the proceedings was the reference of the papers to
Mr. Eeilly, who reported on them fully in a Memorandum dated 4th No
vember 1874. He was of opinion that, before any Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. was
made, " there should be obtained a separate and clear grant of extra-
" territorial jurisdiction to the Queen by the Shah." Mr. Heilly was
led to this conclusion by many considerations, but mainly by doubts as
to whether, having regard to our treaty stipulations with Persia, an
Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. for that country could safely be based on usage,
sufferance, and prescription; by the difficulty of determining certain
questions of fact; by similar difficulty of deciding which of the nations
having treaty relations with Persia was the " most favoured nation," the
German Treaty of 1873 being in some respects more, in others less,
favourable than the B/Ussian Treaty of Turkomanchai; and by the
inapplicability to British subjects of the provision of the Russian Treaty
as to criminal cases. On this point Mr. lleilly remarked,—
It is stipulated that, where a Russian offender is convicted in a Persian Court, he is to be
delivered to the Russian Minister or Consul, w r ho is to send him to Russia, there to undergo
the punishment imposed by the laws. To say nothing, as regards British subjects, of distance
and expense and other considerations, such a stipulation is, in point of English law, nugatory,
not merely in this country, but also everywhere beyond the territorial limits of Persia.
Nothing less than an express and direct Act of Parliament (and no such Act would ever be
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