Page 17 - Gulf Precis(VIII)_Neat

PART I—CHAPTER I.

CHAPTER I.

Line of conduct to be pursued by the Resident at Basrah with regard
to the American vessels trading to the Gulf of Persia—-1803.
The following opinion was recorded by Robert Percy Smith, Advocate
General, Calcutta, in his letter dated 28th
o{^8c»ret Vea°!i7Ca* Dcp,rlrnenl Diary k’0,158 November 1803, on the above point:—

I have the honour to acknowledge the receipt of your letter requiring by the direc­
tions of His Excellency the Most Noble the Governor-General in Council my opinion as to
the line of conduct to be pursued by the Resident at Bussorah with regard to American
vessels trading to the Gulf of Persia.
It docs not appear by the extract from the despatch of the Resident at Bussorah what
is the nature of the trade in which he supposes that the American vessels visiting the
Gulf may be engaged.
The mere act of trading to the Gulf of Persia by a Foreigner is no infringement of
the rights of the British Government in India.
The ports of that Gulf are not part of the British Territories, the Resident at Bus­
sorah is no more than the Agent of the Company in the Dominions of the Foreign and
altogether an independent State.
The privileges of the Company beyond the limits of their own Territory are exclusive
of the Trade of British subjects only, not of the trade of Foreigners.
The American Treaty 1794 docs not seem to me to apply to the question put thus
generally, by that Treaty the privilege of Trading directly to and from the British Terti-
tories in India was conferred under certain restrictions upon the Americans, but their right
of Trading to and from those Ports of the East which do not fall under the description of
British Territories is independent of that treaty and not at all affected by it.
It is not improbable however that the Trade of which the Resident speaks may be an
export trade carried or. from the British Territories in India to the Gulf.
Before the Treaty of 1794 an American conveying on such a Trade would have com­
mitted an offence against the Navigation Laws of England. His ships and goods engaged in
the Trade might have been confiscated in any British Po:t or seized at sea by any ships
bearing the King's Commission.
All trade of this sort is expressly excepted from the indulgences granted to Ameri­
cans by that Treaty and that exception is noticed in the act of Parliament which was
passed to sanction the Treaty.
Reading the act and Treaty as a Lawyer I think they leave the trade in question
subject as it was to the penalties of the Navigation acts: and that the future regulations to
be adopted by the contracting powers were intended not as substitutes for those penalties
but as additional preventives ot the trade.
I cannot however say that it is impossible to understand them otherwise : how far
where there is the least room for dispute, His Excellency in Council may think fit to pro­
mote the strict execution cf the Law against the Americans is matter of the political dis­
cretion.
But supposing the right of confiscation still to exist, it is clear that seizures can only
be made at sea by the King's ships and that they cannot be made at all in foreign ports
without violating the territory of the sovereign to whom those Ports belong. I cannot
therefore imagine any case in which the Resident at Bussorah would be called upon in the
discharge of his ordinary duties to take any steps with regard to American vessels trading
to the Gulf of Persia.
By the act of 37 G. 3, the Court of Directors are empowered to regulate the trade of
nations in amity with great Britain to and from the British territories in India. I have never
understood that the Court has made any regulations under the authority of that act; if
any such exist they may possibly bear on this question and as I may frequently have
occasion in the discharge of my official duties to consider questions cf the nature, I beg
leave respectfully to solicit His Excellency in Council that he will be pleased to direct that
a copy of such Regulations (if any have been framed) may be communicated to me.
I request, Sir, that you will do me the honour to report my opinion as above to His
Excellency in Council.
Copies of the above despatch were on the 25th instant ordered to be forward­
ed to the Resident at Basrah and also to the Resident at Bushire for their respect­
ive information and guidance.
C163FD