PUBLIC RECORD OFFICE
Reference :-
CO. 882
3
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
Colonial Office
Case, 8; Appen- dix E, p. 22. India Office Case, p. 1. Story," Conflict
of Law," irc. 382.
Colonial Oricu
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This precedent, it is conceived, ought to be decisive of the matter. It had escaped the notice of the Colonial Office till the criticism of the India Office, now under examina- tion, that the Act of 1866 did not contain any provision for the transfer of property, compelled the Colonial Office to consult the earlier Acts under which the property of the East India Company became transferred to and vested in the Crown. The Colonial Office now submits that the principle of this precedent may probably cover more than the Colonial Office claims, but that it undoubtedly covers everything claimed in this arbitration.
VI. In January 1867, as already mentioned in the case of the Colonial Office, the Earl of Carnarvon informed Viscount Cranbourne that the newly-appointed Governor of the Straits Settlements would leave England for the purpose of taking over the charge of that Government, and made a proposal for an apportionment of the property in the Settlements between the Settlements and the Indian Government. The proposal is set out in both Cases, and the Arbitrator is referred to them for its terms. It took the character of the property as the basis of apportionment, assigning immoveable property to the Settlements; and the Colonial Office need scarcely remind the Arbitrator that what is to be deemed immoveable is determined in law and administration, not merely by the physical nature of the property, but by its destination. And here the Colonial Office submits that the proper course for the India Office to have adopted on the receipt of the letter containing this proposal would have been either to have 'accepted the proposal in express terms, or, if that Office wished to take a different basis, to have made some com- munication to that effect to the Colonial Office, as invited by the very fact of the proposal.
The careful attention of the Arbitrator is now asked both to what the India Office states, and to what it omits to state in its Case.
The India Office, in its Case, states :-"This letter was sent to the Government of Indie, who acquiesced in the proposed arrangement."
The Colonial Office offers, as a commentary upon this statement, the India Office Case, A¡ pe dixAA, letter of May 26th, 1871, to the Colonial Office, which contains this passage:—
n. 29.
Colonial Office Case, Appendix F. .. 22.
dia Office Cases
1.
1, p. 10.
"I am to add that his Grace the Duke of Argyll fails to see that the principle laid down in your letter of the 25th January, 1867, respecting immovable property, has been acquiesced in either by this office or by the Government of India."
The India Office has omitted to state, in its Case, that on January 31st, 1867, Mr. Merivale, the Under-Secretary for India, answered the Colonial Office letter in the following terms :—
"I am directed by Lord Cranbourne to acknowledge the receipt of your letters of the 19th, 28th and 29th instant, and to state, in reply, for the information of Lord Carnarvon, that copies of these letters will be forwarded by the next mail to the Government of India, with instructions to afford every possible facility, not inconsistent with the interests of Her Majesty's Indian Empire, for the transfer of the administration of the Straits Settlements to the Colonial Department in such a manner as to cause the least possible amount of public inconvenience."
This answer,
it will be observed, neither expressly accepts the proposal of the Colonial Office, nor suggests any further communication between the two Offices on the subject. It is to be regretted that its language, which does not follow the language of the proposal, did not at the time attract the attention of the Colonial Office. The Colonial Office read it as an informal acceptance, but the letter of May 26, 1871, and the sentence from the Case of the India Office next to be quoted, explaining what the Indian Government did on the transfer, taken together, show that the letter was not intended as an acceptance, and that the India Office did not acquiesce in the proposed arrangement. The India Office, in fact, put aside the proposal of the Colonial Office, and appears to have considered that it had the right to decide what the Colony was entitled to upon an apportionment, and to bave rested its decision upon the basis of the budget, to which, in the method of accounts adopted by the Indian Government, that Governinent charged the subject under apportion- ment. Such appears to be the purport of the following sentence :-
"On the 1st of April, 1867, all property which was considered to belong to the Local Government, that is to say, all property repaired or erected out of the ordinary budgets of the Straits Settlements, was delivered over by the Indian, and taken possession of by the Imperial Government."
The word "considered" is explained afterwards as meaning "considered by the Government of India."
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The case continues: "The Government houses, &c., and public offices at the different India Office Care, Settlements, with their furniture, &c., and also the fortifications and native infantry P. 5. barracks, constituted part of the property so delivered up."
"The ordnance, barracks, and commissariat stores were not handed over, no instruc- tions having been sent for their transfer." And further on: "The armaments cannot be considered as belonging to the Local Government, inasmuch as they were not supplied or repaired by that Government, but by the Government of India."
These sentences contain the first intimation the Colonial Office has had of the principle of apportionment relied on by the India Office, and the Colonial Office respectfully protests against its adoption. The principle is not once mentioned in the correspondence between the two Offices preceding the transfer, and does not seem consistent with the argument put forward by the India Office in regard to the barracks, which was, not that the barracks had been paid for by the Indian Government, but that they had been paid for in confidence that the expense would be repaid by the Imperial Government, on the ground that the latter Government would have the entire benefit of them. The benefit, not the budget, formed the pith of the argument.
Again, the India Office says that the Government houses and public offices, with their furniture, were delivered up. The Colonial Office asks with reference, at any rate, to the portion of the armaments in dispute constituting the guns in the forts and gun- cariages, valued in the case of the India Office at 5,9997, to which in fairness must be added some part of the articles necessary for their use, whether they are not, in principle, furniture of the fortifications as fully as what the India Office gave over as the furniture of the Government houses and public offices; and whether, if the two classes of furniture was supplied or repaired out of different budgets, this is not an arbitrary arrangement; or, to put it at the lowest, whether such an arrangement can be admitted to countervail the appropriation-so often already noticed-of these armaments to the fortifications, which is as definite and permanent as the appropriation of the furniture to the bouses and offices. But the Colonial Office protests against this "budget" basis of apportion- ment, so far as it can be understood, from the foregoing sentences of the case of the India Office, on the ground that it does not represent the real relations of the parties. The India Office throws no light on the way in which these budgets are made up, and the Arbitrator has, therefore, no definite information on the matter. What little light can be gathered from the correspondence between the two Offices previous to the transfer is not calculated to win credit for the basis. At an early period of the negotiations for transfer, certain statements explanatory of the excess of the expenditure of the Straits Settlements over their revenue, were forwarded by the India Office to the Colonial Office, and called forth the following criticism from the Duke of Newcastle, in a letter of February 6, 1860 :—
Colonial Office Case, Appendix C
"The Duke of Newcastle has carefully considered the statements forwarded to him (Copies, &c., p. 34). on this point. But he finds them such as to support no trustworthy estimate. They are such that by a certain amount of selection and conjecture it would be easy to show a possible surplus of 10,000l. per annum, or a possible deficit of 70,0001,"
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The India Office, as already mentioned in the Case of the Colonial Office, answered Colonial Office that it could not give more precise information, If the India Office could not explain its Case, p. 4. budgets then, it ought not, it is submitted, to be allowed to bring them forward now.
In the absence of the official information asked for from and declined by the India Office, the Colonial Office is compelled to place before the arbitrator the best information it can obtain bearing on the subject. There is a remarkable passage in a Memorandum addressed by certain merchants of the Settlements to the Duke of Newcastle, contained in the Parliamentary Papers of 1862, which, from the high character of the parties communicating it, the evident care with which it was prepared, and the public manner in which it was put forth, must be treated as deserving of credit. The passage is as follows:-
"The total amount of the military charges is not known to the authorities in the Colonial Office Straits themselves, as the troops are detached from the Madras Presidency, where a large Case, Appendix C amount of incidental expense is incurred on their account, independent of the sums (copies, &c., p. 61). disbursed from the local treasuries in the Straits. The latter included pay, the cost of provisions, and sundry contingent expenses; and in 1856-57 they are entered at 44,5671., which, however, by some extraordinary complication of accounts, includes the pay. allowances, and provisions, and most probably the transport, of the men forming the
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