PUBLIC RECORD OFFICE
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Reference:-
C.O.
882
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
Colonial Office Case, p. 1, Ap- pendix B.
Ibid., p.
21.
Colonial Office Case, p. 16.
Ibid., p. 17, Ap. pendix EE.
Appendix A, (1), (2), (3).
Appendix B.
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from this agreement of submission alone the Arbitrator derives his powers in the arbitra- tion. Appeal must, therefore, be made to the documents constituting the submission in this arbitration.
The India Office, it will be observed, has not referred to any document in support of its description of this subject-matter. The Colonial Office, on the other hand, has prefaced its statement of the subject-matter by referring to the Colonial Office letter to the India Office of April 26, 1873, and the India Office reply of May 23, 1873, the two letters which closed the correspondence between the two Offices on the subject of the arbitration, and which constitute, it is submitted, the agreement of submission.
On consulting these two letters, which are set out at length in Appendix (B) of the case of the Colonial Office, it will be seen that the statement of the Colonial Office is taken word for word from the Colonial Office letter of April 26, 1873, which contained the final proposals of arbitration, and that the India Office reply of May 23, 1873, concluded with the paragraph that the Secretary of State for India agreed with the proposals of the Colonial Office letter.
These letters might be relied on as sufficient; but in order to prevent any mistake it will be desirable to place before the Arbitrator the correspondence relative to the arbitra- tion which led up to these letters, so as to put him in possession of everything which can throw light upon the terms of submission.
The first proposal of arbitration was made in a letter of the Colonial Office of March 30, 1872, set out in full in the Case of the Colonial Office. In that letter Lord Kimberley, after expressing regret that he was unable to assent to the view taken by the Duke of Argyll, then Secretary of State for India, especially with reference to the question of payment for the armaments and stores which were in the Colony at the time of its transfer on the 1st of April, 1867, and after stating that the understanding at the Colonial Office at the time of the transfer was that on the 1st of April, 1867, the Colony was, except where otherwise provided for, to take over the assets and assume the liabilities which existed at the time of transfer, added, "Lord Kimberley, on the part of the Colony, has no other wish than that the conditions, whatever may be their correct interpretation, should be fairly carried out. His Lordship would, therefore, propose that the questions now in dispute should be referred to the decision of an Arbitrator."
To this letter, as already stated in the case of the Colonial Office, a reply was sent from the India Office on June 21, 1872, that the Secretary of State for India entirely reciprocated Lord Kimberley's views with regard to an equitable settlement of the unad- justed accounts between the two Departments consequent on the transfer of the Straits Settlements to the Colonial Office, and concurred with him in opinion that the matter under discussion should be referred to arbitration.
The Colonial Office next wrote to the India Office on July 8, 1872, in reference to the preparation of their respective cases in the arbitration; and again on August 9, 1872, proposing the Right Honourable W. E. Foster as Arbitrator, a proposal accepted by the India Office in a letter of October 31, 1872. These letters call for no particular notice except to observe that the India Office letter of October 31, 1872, treats the subject- matter of their correspondence as "the disputed accounts between the India Office and Colonial Office in respect of the transfer of the Straits Settlements to the latter Govern- ment."
On the 13th December, 1872, a letter was written by Mr. Merivale from the India Office to the Under-Secretary of State for the Colonies, containing the following passage:-
"I am directed by the Duke of Argyll to request information whether his Grace is correct in the supposition that the claim of 33,1421. 15. 11d., for the armaments and their equipments left in the Straits at the date of the transfer, and the questions arising out of that claim, are the only points which the Earl of Kimberley proposed to submit for arbitration to Mr. Forster."
Then follows the two letters, the Colonial Office letter of April 26, 1873, and the India Office reply of May 23, 1873, which complete the correspondence.
This correspondence, it is submitted, establishes three points
First. The property in arbitration is described by the two parties respectively in the two documents constituting the submission as "the armaments and stores left by the Government of India at the time of the transfor, exclusive of those which have been taken over and paid for on Imperial account;" and throughout the whole correspondence, the property was never described otherwise than as left by the Government of India at the transfer.
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Secondly. The final letter of May 23, 1873, from the India Office to the Colonial Office, speaks of the arbitration as agreed upon with regard to certain matters connected with the transfer in 1867, of the Straits' Settlements to the Colonial Office."
Thirdly. "Payment by the Imperial Government," or "on Imperial account," is not once mentioned in this correspondence, except with regard to the stores excluded from arbitration; and in regard to them, it is mentioned by both parties in the letters constituting the agreement of submission.
These remarks will, it is conceived, explain the only difficulty which the most minute verbal criticism could raise upon the terms of submission. In the Colonial Office letter of April 26, 1873, it is stated that Lord Kimberley was of opinion that "the arbitration should be confined to the liability of the Colony for the armaments, &c." In the India Office letter of May 23, 1873, this statement is recited, that Lord Kimberley was of opinion that "the arbitration should be confined to the military stores, armaments," &c., "the words, "the liability of the Colony for," being omitted.
It is conceived, however, that no difference of meaning underlies this difference of phraseology. The two letters must be taken together in their entirety, and even without pressing what has already been noticed, that the India Office concludes with an unqualified agreement to Lord Kimberley's proposal, it is apparent on the face of the letters, without any
contradiction between them, that the matters in arbitration between the parties, are connected with the transfer in 1867, and are confined to the armaments, &c., left by the Government of India at that date.
Now the only questions existing at that date in reference to these armaments and stores are the questions raised in the Colonial Office letter of January 28, 1867, namely, "What property in the Settlements ought to be considered as belonging to the Settle- ments," and "What property ought to fall to the Indian Government, for that Govern- ment to remove or sell at pleasure, and for which, consequently, the Settlements. if they elected to buy either in whole or in part, would become liable either in whole or in part to the Indian Government ?"
From circumstances which will be made clear later, these questions were not deter- mined between the India Office and the Colonial Office at the time of transfer in April 1867, and they cropped up afterwards in transactions following upon the proceedings of the Committee of Valuation, which was assembled, as already mentioned, in the Case of
the Colonial Office, under instructions from the War Office, for the purpose of affixing a Colonial Office money value to certain military stores in the Straits Settlements-transactions out of Case, p. 9. which this arbitration has immediately arisen.
II. Without repeating what has been discussed at some length in the Case of the Colonial Office, it is submitted that the relative positions of the India Office, the War Office, and the Colonial Office, in respect of these transactions, may be thus shortly
stated.
The India Office entered into negotiations in the latter part of 1867 and in 1868 with the War Office for the sale to that Office of certain, stores in the Straits Settleinents. During these negotiations the Colonial Office, from communications with the War Office, came to the conclusion that the India Office was affecting to deal, as their own, with certain armaments to which the Settlements had a right, and put forward that right on behalf of the Settlements. Upon this the War Office stood apart till the question of right between the India Office and the Colonial Office was decided. It is this question which the Arbitrator is asked to decide; and as the armaments, being in the Settlements, and left there by the Indian Government, are physically under the dominion of the Government of the Colony, that is, for the purposes of this Case of the Colonial Office, and the India Office affects to deal with them, the India Office, it is submitted, must assume the part of plaintiff, and make good its title to these armaments.
From the relative positions of the three parties, as thus stated, it results, that if the Arbitrator shall decide in favour of the Colonial Office in regard to all the armaments in dispute, no further question can arise; but if the Arbitrator shall decide in favour of the India Office in regard to any portion of the armaments, then the India Office will have the right claimed in Mr. Merivale's letter of March 30, 1871, to remove that portion, and Colonial Office therefore to sell it. And in this case a further question may arise between the India Office Case, Appendix Y. and the War Office, as to how far the War Office is bound either in law or honour by its negotiations with the India Office, to purchase this portion. With this question, however, the Colonial Office and the Arbitrator have nothing to do, as the War Office is not a party to the submission, and the question, therefore, lies outside the arbitration. But it has been necessary to call attention to this question, in order to point out the fallacy which runs through the case of the India Office. The India Office has confounded its relations to the War Office with its relations to the Colonial Office. Both in the opening sentence