1867.
PUBLIC
RECORD OFFICE
Reference :-
TTITUCO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH|NOT TO
No. 8.
(STRAITS SETTLEMENTS.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
Temple, 18th February 1874. We are honoured with your Lordship's commands, signified in Sir Henry Holland's letter of the 13th instant, stating that, with reference, to our Report of the 5th December upon the question whether the annual sum of 8001., being part of the pension of Sir B. Maxwell, late chief judge of the Straits Settlements, should be borne by the Government of India or by the Colony, in which we stated that, in our opinion, the charge could not now be legally transferred to the Straits Settlements.
He, Sir Henry Holland, was directed by your Lordship to transmit to us the which were submitted to us with Mr. Herbert's letter of the 20th November, and also C.O. to F.O., copy of a correspondence which had passed subsequently to that Report between the 18 Dec. Colonial Office and the India Office.
papers
F.O. to C.O.,
We see that your Lordship and the Duke of Argyle are agreed that the Indian 2 Feb. Revenues should be relieved from the payment of this pension, on the ground that it was a charge which the Imperial Government had originally agreed to accept, though such agreement had not had legal effect given to it; and the question now remains as to what steps should be taken to redress this oversight.
A doubt has been entertained whether Her Majesty has power under the first section of the Act "to provide for the government of the Straits Settlements" (29 & 30 Vict. c. 115.), to make a further Order in Council, and whether in the absence of the words "from time to time," or of like words, she has not in fact exhausted her powers under that section by passing the Order in Council of 28th December 1866.
In these circumstances, Sir Henry Holland was to request that we would favour your Lordship with our opinion, whether the proposed transfer of the charge both in respect of past and future payments can be made by Order in Council, or whether an Act of Parliament will be necessary.
He was further to request that, if we are of opinion that Imperial legislation would be necessary, we would favour your Lordship with such a sketch of the proposed measure as may be placed in the hands of a draftsman.
In obedience to your Lordship's commands we have the honour to
Report
That we are of opinion that, whatever considerations might recommend the transfer of the pension of Sir Benson Maxwell from the Indian Revenue to that of the Straits Settlements, the legal power to make such transfer is wanting.
By virtue of the Acts 6 Geo. 4. c. 85. and 18 & 19 Vict. c. 93. this pension was clearly chargeable on the Indian Revenue.
When the Act 29 & 30 Vict. c. 115. was passed authorising the separation of the Government of the Straits from the Indian Government, which was carried into operation in April 1867, it was expressly provided by section 4 of that Act "that all laws then in force in the Settlements should continue to be in force until otherwise provided by Order in Council."
14
An Order in Council was made under the authority of this Act 28th December 1866. That Order did not, however, make any other provision in respect of the matter in question, which therefore, in our opinion, remains in the same position as it did before the passing of the Act of 1866.
The Report of Sir Hercules Robinson (Printed Correspondence, p. 15) expressly directed the attention both of the Government and of the Legislature to the necessity of further provision if it was intended to transfer the charge. That further provision was not made either in the Act of Parliament or in the Order in Council, and therefore, in our opinion, the charge cannot now be legally transferred to the Straits Settlement.
We have, &c., (Signed)
The Right Hon. Earl Kimberley,
&c.
&c.
&c.
HENRY JAMES. W. V. HARCOURT,
▲ 19916.-9. 25.-12/84.