Page 258 - Gulf Precis (VII)_Neat

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18 to be considered a subject of the country of origin. It appears to me that in the present
case having regard to the Treaty with Persia hereafter to be noticed, it is absolutely
necessary to determine whether by the laws of Persia, a person of Persian origin born
in British India is or is not a Persian subject. Owing to my possessing no knowledge of
the laws of Persia, not having the means of obtaining such knowledge, l am wholly unable
to solve the abnvo question aud to determine whether such a person as above described
is a Persian subject.
Article IX of the Treaty with Persia is as follows:—*“ The High Contracting Parties
engage that in the establishment and recognition of Consuls-Gcncral, Consuls, Vice-Consuls,
and Consular Agents, each shall be placed in the dominions of the other on the footing of
the most favoured nation, and that the treatment of their respective subjects and their trade
shall also in every respect be placed on the footing of the treatment of the subjects and com-
merce of the most favoured nation.”
Article XII of the samo Treaty is as follows:—Saving the provisions in the latter part
of tho preceding Article the British Government will renounce the right of protecting
hereafter any Persian subject not actually in the employment of the British Mission, or
of British Consuls-Gcneral, Consuls, Vice-Consuls, or Consular Agents, provided that no
such right is accorded or exercised by any other foreign power ; but in this, as in all other
respects, the British Government requires, and the Persian Government engages that the
same privileges and immunities shall in Persia be conferred upon and shall be enjoyed
by the British Government, its servants and its subjects and that the same consideration
shall be shown for them and shall be enjoyed by them as are conferred upon and enjoyed
by and shown to the most favoured foreign Government, its servants and subjects*”
If a person of Persian origin born in British India is a Persian subject, I think
that such a person would not, according to the proper construction of the provisions of
the Treaty above quoted, be entitled to British protection, unless such right of protection
under similar circumstances is exercised by any other foreign power.
It will be noted that an exception is made in respect of Persian subjects in the service
of the British Government. It may, however, be contended that although such a person
as above described may be a Persian subject, he is also a British subject, and that therefore
he is entitled to the immunities and privileges conferred by the latter portion of Article
12. To this the correct answer would be that the British Government has renounced
the right of protecting Persian subjects with certain exceptions, which do not cover the
ordinary case of a Persian subject who may also be a British subject, and that the engage­
ment of the Persian Government, to the effect that privileges and immunities shall be
enjoyed by British subjects, must of necessity only apply to cases of persons who are
British subjects, and not Persian subjects.
A different rule of construction would be opposed to the history of British or other
European protection in the East.
One of the leading principles of international law laid down in I. Phillimore's interna­
tional law, page 355, is as follQws :—
“The right of jurisdiction, civil and criminal, over all persons and things within the
territorial limits, which is incident to a state relatively to its own subjects, and their own
property, extends also, as a general rule, to foreigners commovant in the land.”
As to the exceptions to tho territorial right of jurisdiction, Sir R. Rhillimore, in page
361 of the above volume, writes as follows :—
“The first class of exceptione to this rule is founded upon local usages and the reason
of the things aud relates principally to the status of Christians in infidel countries. So
early as the sixth century a derogation from the rule of European International Law began
to develop itself. After the fall of the Roman Empire, the Code of the Visigoths, not the
least remarkable monument of the middle ages, conceded to foreign merchants the privilege
of being tried by judges selected from among their own countrymen. But after the
Ottoman power became established in Europe, Christian nations trading with the tferri-
tories subject to that power, obtained from it, at different periods, a concession of exclusive
authority over their own subjects, nearly identical with that which the Christian ‘ Jus
Commune* had conceded to foreigu ships of war in their ports. The vital and ineradicable
differences which must always separate the Christian from the Mahomedan or infidel, the
immiscible character which their religion Impresses upon their social habits, moral senti­
ments, and political institutions, necessitated a departure from the strict rule of territorial
jurisdiction, in the case of Christians who founded commercial establishments in Ottoman
or infidel dominions.”
The same subject is stated by Lord Stowell, in the case of the Indian Chief, 3 Rob.
Adm. Reports, pages 23 and 24, as follows :—
“ But taking it that such a permanent sovereignty on the part of the Mogul princes
really anJ solidly exists, and that Great Britain cannot be deemed to possess a sovereign
fight there; still it is to be remembered that wherever even a more factory is founded in