'Précis of the Affairs of the Persian Coast and Islands, 1854-1905 By J A Saldanha, BA LL B' [‎24v] (48/212)

36
or mercantile, a wide difference subsists in the dealings between an Oriental and a
Christian State and tlie intercourse between two Christan nations. It is true beyond a 1
doubt that as a matter of right no State can claim jurisdiction of any kind within he
territorial limits of another independent State. It is also true that between two Christian
States all claims for iurisdiction of any kind, or exemption from jurisdiction, must be
founded on treaty or engagements of similar validity. Such, indeed, were factory An East India Company trading post. establish
ments for the benefit of trade.
" But though according to the laws and usages of European nations a cession of
jurisdiction to the subjects of one State within the territory of another would require gen
erally at least the sanction of a treaty, it may by no means follow that the same strict forms, #
the same provision of Treaty obligation, would be required or found in intercourse with
the Ottoman Porte.
" It is true, as we have saidi that if you enquire into the existence of any particular
privileges conceded to one State in the dominions of another, you would,^ amongst
European nations, look to the subsisting treaties, but this mode of incurring obligation or
of investigating what has been conceded is matter of custom and not of natural justice.
" Any mode of proof by which it is shown that a privilege is conceded is, according to
the principle? of natural justice, sufficient for the purpose. The formality of a treaty is
the best proof of the consent and acquiescence of parties, but it is not the only proof, nor
does it exclude other proof, and more especially in transactions with Oriental States.
" Consent may be expressed in various ways, by constant usage permitted and
acquiesced in by the authorities of the State, active assent or silent acquiescence where
there must be full knowledge.
" This case is provided for by the Statute 6 and 7, Vict., c. 94. The first section of
that Act recites that by treaty capitulations, grant, usage, sufferance, and other lawful
means. Her Majesty hath power and jurisdiction within divers countries and places out
of Her Majesty's dominions, and that doubts have arisen how far the exercise of such
power and jurisdiction is controlled by, and depended upon, the laws of this realm, and
enacts that Her Majesty may exercise any power or jurisdiction, which Her Majesty now
hath or must at any time hereafter have within any country out of Her Majesty's do
minions in the same, and as ample a manner as if Her Majesty had acquired such power
or jurisdiction by the cession or conquest of territory.
8. I have ascertained by enquiring at the Political Department of the Secretariat,
that we are at the present time in military occupation of Bassidore, and have been un
interruptedly so for nearly half a country; and likewise that there is no extradition treaty
with Persia. No trace of any such treaty is to be found in the collection of treaties
and engagements above referred to, compiled for official use by Mr. Aitchison, B. C. S.,
when Under-Secretary to the Government of India in the Foreign Department.
g. It is now settled, as I have recently had occasion to point out in my opinion,
No. 17, dated the 20th March 1868, respecting a question of extradition between the
Governor of Damaun and this Government that the right of one State to demand of
another the delivery up of its own subjects when guilty of crimes is generally regulated
by special treaty or compact, and is not a right recognized by the law of nations, and is
stated by jurists to be one of imperfect obligation."
148. In 1868 a murder was committed in the naval station of Bassidore
Political A., September 1868, Nos. 160-62. ^7 a man P a ^ ie< ^ Said Sidi, and the ques
tion was raised as to which Court should
try the accused. The following opinion was expressed by the Advocate General,
Bombay :—
No, 1031, dated 29th June 1868.
From — R. V. H earn, Esq., Solicitor to Government, Bombay,
To—C. GONNE, Esq., Secretary to Government, Bombay.
T have the honor to enclose a copy of the Opinion No. 35 of the Hon'ble
the Advocate General upon the question submitted in the Government Reso
lution No. 1566 of the 13th instant.
3. The enclosures of your above resolution herewith returned.
No. 35, dated 27th Jane 1868.
OPINION.
It is stated by Lieutenant-Colonel Pelly that no official at Bassidore or in the Persian
Gulf has authority to try a case of murder. Assuming that to be the case, and as I consider
that the High Court of Bombay has no jurisdiction to try the accused Saeed, it appears to
me that the best course to be adopted by Government will be to deport the accused from
bassielore.