Page 457 - Gulf Precis(VIII)_Neat

33

What the Sultan may fairly claim, it is not easy to say. If we were framing
an agreement we might offer him:—
(1) Arms belonging to Maskat subjects or a money compensation, if it 1*5/
thought unsafe to give him the arms.
(2) In the case of goods destined for Maskat which would have paid
customs duty there, compensation for loss of duty.
(3) 1° the case of arms seized in Maskat waters, some payment in acknow­
ledgment of the Sultan’s rights.
The Sultan may possibly claim arms belonging to Persian or British owners*
seized in Maskat waters, and adjudged by a Maskat Court to be duly confiscated ;
but this claim is very questionable. If the owners are Persian subjects, the arms
may be claimed by the Shah under the loosely expressed agreement we have
with him.. If they are British subjects, the question will be taken to an English
Court, as in the case of the “ Baluchistan ”. In that case the plaintiff failed,
because the title to the arms was held to be res judicata, having been decided
by a Maskat Court, composed of the Prime Minister and the Commander-in-
Chief. It is unsatisfactory, both from tbe legal and from the political point of
view, that British officers seizing the property of British subjects, should have to
rely on the judgment of a Maskat or Persian tribunal. It may be observed that,
while we rely on the Maskat judgment, we hesitated to give effect to it. The
Court means to decide in favour of the Sultan, yet we delayed giving up the
arms.
But for this convenient Court and its judgment, it may be doubted whether
the Maskat law, as embodied in the notification and proclamation, would have
supplied us with a defence. It must be remembered that the territorial waters
of a State are not part of its territory. They are a part of the sea, over which
the scate has rights. Mariners of other nations retain their rights of innocent
passage; and when a British merchant ship is exercising this right, it is not
clear that a British officer may seize her cargo because she is contravening the
law of Maskat. We have no right to execute Maskat law, except such right as
the Sultan confers on us, and an English Court may hold that the British Gov­
ernment cannot, by making itself the agent of a foreign power, acquire an arbi­
trary power over British subjects and their property.
The same considerations apply to a seizure in Persian territorial waters.
The Sadr-i-Azam says we may search vessels “ trading in the Persian Gulf.”
His letter is probably a sufficient authority to stop a Persian ship, anywhere in
the Gulf, and to confiscate arms belonging to Persian owners. But it does not
enable us to seize arms of British owners on the high seas ; and if we seize such
arms in Persian waters, we are not safe unless we refer the matter to the Persian
Court, and place the usual arguments before the judges.
The “ Baluchistan ” case shows that our present operations have not yet
a sufficient legal basis. We seem to require (1) Agreements with Maskat and
Persia, conceding the right to search vessels and confiscate arms, and providing
for the manner in which the arms are to be disposed of, and (2) an Imperial’
Act, forbidding this traffic to British subjects, and empowering our officers to
seize arms and ammunition.
This would have been a proper case for a joint note in this Department. But
I have taken the liberty of going beyond the limits of the reference, and my
colleagues prefer to note separately on the questions referred.”
The Sultan receives the arms confiscated from the “ Baluchistan,
1900.
58. In a despatch No. 33, dated the 1st March 1900, the Government of
India advised the Secretary of State that orders had been issued for the delivery
to His Highness the Sultan of the cases of arms and ammunition, the property
of British subjects, which were seized on board the S. S. ” Baluchistan " by
H. M. S. ” Lapwing.”
C997FD