CO882-(2-3) — Page 465

PUBLIC RECORD OFFICE

Reference :-

TTIC.O.

882

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PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

Colonial Office Case, R. 5;

Ibid., p. 8

21 & 22 Vict., e. 106.

:

and throughout the Case the India Office refers to rights having their origin in transactions expressly stated as having taken place "shortly after the transfer," and which were, in fact, transactions between the India Office and the War Office, while the terms of submis- sion refer the rights in dispute expressly to the date of the transfer, and consequently to an earlier, and therefore different, origin from the origin relied on by the India Office.

III. What, then, were the respective rights of the Indian Government and of the Straits Settlements at the date of transfer ?

Both the India Office and the Colonial Office, in their respective cases, refer to the correspondence between the two Offices previous to the transfer.

The India Office refers to this correspondence only to dismiss it with the note:-- "There was some previous correspondence relating to the barracks for European troops, which does not, however, affect the present question." The Colonial Office has pointed out that this correspondence relating to the barracks has an important bearing upon the question, because the India Office based a claim--a claim ultimately given up for payment for the barracks, on the ground of their forming an exception to the general principle stated by that Office in a letter of May 21st, 1861, that public buildings and properties. were to be made over on the transfer free of charge, thus admitting the general principle; adınitting, further, that the principle was to be applied where the properties had heen used and enjoyed by the outgoing Governinent, and ultimately giving up the exception; and the Colonial Office further submitted, upon arguments which it would be superfluous- to repeat, and to which the Arbitrator is respectfully referred, that the conclusion to be drawn from the whole correspondence was that the Colony was intended to take over the assets and assume the liabilities existing at the time of transfer.

IV. It is now further submitted by the Colonial Office, in answer to the criticisms of the India Office upon the "Act to provide for the Government of the Straits Settlements, 1866," that the Act supports the above-mentioned conclusion, and carries out the intention.

"The Act," says the India Office, "did not contain any provision for the transfer of the public edifices, stores, or property of the Indian Government to the Crown." The Act could not contain any such provision, because the public edifices and stores were already vested in the Crown, under the 39th section of the Act for the better Government of India, in these express terms:-

"All lands and hereditaments, monies, stores, goods, chattels, and other real and personal estate of the said Company, subject to the debts and liabilities affecting the same respectively, and the benefit of all contracts, covenants, and engagements, and all rights to fines, penalties, and forfeitures, and all other emoluments which the said Company shali be seised or possessed of, or entitled to, at the time of the commencement of this Act, except the capital stock of the said Company and the dividend thereon, shall become vested in Her Majesty, to be applied and disposed of, subject to the provisions of this Act, for the purposes of the Government of India."

The property in the public edifices, stores, and chattels in the Straits Settlements, underwent no change by the Act of 1866 and the transfer effected under it. Before and after the transfer alike, the property was vested in Her Majesty. And though both the Colonial Office and the India Office, in the popular language commonly and somewhat loosely used, have spoken in their correspondence of the property of the Straits Settle- ments or of the Indian Government, and though it may be convenient to adopt such language in the arguments of these Cases, and the Colonial Office, while it has endeavoured to avoid the word "property," and has adopted the words "rights of the Straits Settle- ments," offers no criticism upon, and makes no objection to, the use of the word property" by the India Office; yet this popular and loose use can only mislead if extended to the interpretation of the Act of Parliament. The India Office and the Colonial Office must start from the position that, the property in the Settlements and in the public edifices, stores and chattels in them being already vested in Her Majesty, the object of the Act of 1866 was to provide for the transfer of administration. And starting from this position, the Colonial Office contends that, in the absence of express language to the contrary, the Act in transferring administration must be taken to have transferred the means of administration. If this were not so, the Settlements would be unequally treated in comparison with the rest of India. The Crown is the equal Governor of every part of India, and the Indian Government, in applying and disposing of the stores and chattels under its management, must be presumed to have applied and disposed of them with equal regard to the requirements of each part. If, now, when the Settlements are to cease to form part of India, the stores and chattels appropriated in this application and distribution to

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the Settlements by the Indian Government, as suited to their requirements, are to be taken from them, they will be impoverished for the benefit of the rest of India, and the rest of India enriched at their expense. It is submitted that express words would be needed to justify an interpretation producing this inequality.

The

But so far from such express words being found in the Act, the first section supports the contention of the Colonial Office, for the provisions of that section contemplate an unbroken continuity of administration though under different administrators. section enables Her Majesty by Order in Council to make provision respecting the enforce- ment by or against the Government of the Settlements, that is, the new administrators, of all or any of such debts, claims, and obligations as might, if the Act had not passed, have been enforced by or against the Government of India, the old administrators, in connection with the administration of the Settlement. Now, it is immaterial whether or not it has been found necessary to make such an Order in Council. The intention of the Act is to be determined by the powers conferred, and not by the exercise of those powers. The debts, claims, and obligations (if any such existed) due to the Government of India were assets in respect of the Settlements; the debts, claims, and obligations due by the Government of India were liabilities in respect of the Settlements, and they were the only assets and liabilities which required for their enforcement the aid of the Legislature. These debts, claims, and obligations, whether due to or from the Indian Government in connection with the administration of the Settlements, were contracted before the transfer with reference to the then state of the Settlements. The Act in providing for the enforcement of these debts, claims, and obligations by or against the Government of the Settlements after the transfer, clearly contemplates that the state of things to which the debts, claims, and obligations owed their existence remained unchanged, in other words, that the state of the Settlements after the transfer, was an unbroken continuation of the state of things before the transfer.

The Colonial Office, therefore, contends, upon the language of that Act, that the policy of the Act was, with the transfer of that Government, to transfer the means of Government.

V. It will not be out of place here to remark that this policy was the policy adopted by the Legislature in the only case parallel to the present one-the case of the Island of St. Helena.

The Island of St. Helena was granted by Charles II in 1673 to the East India Company by a Charter, which constituted them Lords Proprietors of the Island. It remained "in the possession and under the Government" of the Company till 1831, when it was transferred to the Crown. During the latter years of this period, from 1814 to 1829, as shown by a Return madd to the Select Committee on the affairs of the East India Company, which sat in 1832, the expenditure of the Company for the Island exceeded the revenue of the Island, so as to have produced in 1829 a total deficiency of about 1,500,0001. In respect, therefore, of deficiency, St. Helena and the Straits Settlements Appendix C. may be said, speaking generally, to resemble one another; but the proportional deficiency is much greater in the case of St. Helena than in the case of the Straits Settlements, for while the revenue of the Straits Settlements, as already pointed out in the Case of the Colonial Office, more than covered the civil expenditure and went no inconsiderable way towards the military expenditure, St. Helena, in 1829, the last year given in the return, produced a revenue of 2,5831. against charges of 115,5377, leaving a deficiency of Again, in the mixture 113,0541., or as nearly as possible forty-four times the revenue.

of revenues, so as to form a common fund for administration in the manner discusseri in the Case of the Colonial Office, the two cases are alike in principle though not in degree. In 1839 it was determined to transfer the island to the Crown, and the transfer was effected by Section 122 of 3 & 4 Will. IV, c. 85. In order to effect this transfer the island and the public edifices, stores, and property in this island being, not only "under the Government," but "in the possession" of the East India Company,, it became necessary to introduce vesting words so as to transfer the property in everything intended to be transferred to the Crown. Hence the section may be appealed to as furnishing a legislative rule as to what ought to accompany a transfer of Government under circum- stances similar to those now before the Arbitrator,

The Section runs thus :-

"122. And be it enacted, That the Island of Saint Helena, and all forts, factories, public edifices, and hereditaments whatsoever in the said Island, and all stores and property thereon fit or used for the service of the Government thereof, shall be vested in His Majesty, his heirs and successors, and the said Island shall be governed by such orders as His Majesty in Council shall from time to time issue in that behalf.”

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