‘Consular jurisdiction in Persia.’ [‎12r] (23/36)

23
Referring to a case quoted by Colonel Prideaux, in which the Govern
ment of India, acting executively, ordered the trial of a Seedee, not
being a British subject, at Bassidore, "which is foreign territory," and
caused him, when convicted, to be transported to the Andamans, they
observe :—
The risks involved in such procedure are obvious. The case indeed clearly illustrates
the difficulty of having executive powers beyond the area of legislation. And we can only
be freed from that difficulty by the action of Parliament, as the Crown has been freed. For
the petty offences tried and punished on the spot it matters comparatively little what
arrangement is made. The chances of failure will occur in those cases in which failure is
most embarrassing,—those cases, namely, which are of sufficient importance to be sent to
Bombay, either originally or on appeal. And we feel so strongly that there will be failure
unless the Government of India can make, as well as administer, law, that we have no
hesitation in advising your Lordship that, unless Her Majesty's Government are in a position
to procure for us adequate powers, the safer course will be to keep the whole jurisdiction in
Persia directly under the Crown.
On this it may be observed that it seems, on the whole, scarcely
necessary to import into the discussion of the question whether, in a
particular Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , provision shall be made for the subjects of
Native States resident in the country affected by the Order, the much
larger question of the propriety or otherwise of vesting the Governor
General in Council with power to legislate generally for the subjects of
protected States resident abroad. It is the less necessary, as the im
mediate question appears, in fact, to have been settled by the Act
(39 & 40 Vict., cap. 46) passed last Session, <c for more effectually
" punishing Offences against the Laws relating to the Slave Trade."
Not only is it stated in the third paragraph of the preamble to that
Act that—
The several Princes and States in India in alliance with Her Majesty have no con
nections, engagements, or communications with Foreign Powers, and the subjects of such
Princes and States are, when residing or being in the places herein-after referred to, entitled
to the protection of the British Government, and receive such protection equally with the
subjects of Her Majesty,
but Clause IV. provides as follows :—
4. And whereas by certain Orders of Her Majesty in Council made by virtue ot an Act
made and passed in the session of Parliament holden in the sixth and seventh years of Her
Majesty's reign, chapter ninety-four, which Orders are dated respectively the ninth August
one thousand eight hundred and sixty-six and the fourth November one thousand eight
hundred and sixty-seven, it is ordered that the provisions of such Orders relating to British
subjects shall extend and apply to all subjects of Her Majesty, whether by birth or by
naturalisation, and also to all persons enjoying Her Majesty's protection in the several
dominions mentioned in such Orders respectively.
It is hereby declared and enacted that for the purposes of the said Orders in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , and
of any Orders in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. which Her Majesty may hereafter think fit to make by virtue of
the said Act of the sixth and seventh years of Her Majesty's reign, chapter ninety-four, all
subjects of the several Princes and States in India in alliance with Her Majesty, residing and
being in the several dominions comprised in such Orders respectively, are and shall be deemed
to be persons enjoying Her Majesty's protection therein.
The Orders specified in the first paragraph of the above clause are
those applying the Foreign Jurisdiction Act to Zanzibar and Muscat, but
the provision in the enacting paragraph appears to be perfectly general.
If it is to be so construed, any Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. applying the Foreign
Jurisdiction Act to Persia, and making provision (as it would make) for
" persons enjoying Her Majesty's protection " in Persia, would necessarily
apply to the subjects of protected Native States, and in a Convention
with Persia no specific reference to the latter class of persons would be
necessary.
As regards the proposed classification of British Indian subjects in
Persia, the Government of India write,—
We apprehend that there is some misunderstanding as to the intention of the Government
of India in recommending such a classification. It was not meant that British Indian subjects
entered in Class II. (i.e., mainly Mahomedans,) should be removed from the protection and
control of our Consular Officers. According to our views this result should ensue in either of
two contingencies,—
(a) If the person were naturalized by some process recognized in Persia.
(5) If the person were born in Persia and were the child of a British Indian subject
entered in Class II.