CO882-(2-3) — Page 469

PUBLIC RECORD OFFICE

C.O.

Reference :-

882

PUBLIC RECORD OFFICE, LONDON

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

India Office Case, p..8.

1bid.,

P.

11.

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Office cannot be held responsible for acts of the Committee beyond the scope of the reference

X. The valuation made by the Committee requires a few words. The Colonial Office, not having been represented upon the Committee of Valuation, cannot, it is conceived, be bound by the prices affixed to the articles valued; but it admits that the prices fairly represent the value of the articles at the date of transfer, and adopts the figures which result for the purposes of this arbitration. The India Office and the Colonial Office agree that two lists of ordnance stores were made out, one dated September 7, 1868, and the other dated September 21, 1868. There are some differences between the two lists, but these differences may be treated as immaterial. Both Offices have adopted the list of September 7, 1868, as the list determining the value. According to this list the whole ordnance stores were estimated at 32,3521, and after deduction of the portion amounting to 7097., taken over by the Colony, the remainder is 31,6431. :—

Ordnance stores

Stores taken by the Colonial Government ..

Equal

Rs. 329,535 7,098

316,437 £31,643

These stores are divided into two classes: (1) Armaments and equipments for the But while the Colonial and India Offices have guns; and (2), other military stores. adopted the list of September 7, 1868, as determining the value, the War Office ticked, in red ink, the stores considered to belong to the armaments in the list of September 21, 1868, and therefore this list contains the division into the two classes.

It must further be taken as admitted between the two parties that the War Office bas paid the India Office 13,0211., which is, for this arbitration, to be considered as paid on account of these stores. As to the sum 13,0217. there is no dispute, and the Colonial Office designedly uses the word "paid" in opposition to the allegation of the India Office that the War Office has not yet paid the sum, and justifies this use by recalling the atten- tion of the Arbitrator to the terms of submission: "Stores taken over and paid for by the Whatever be the state of accounts between the War Department on Imperial account." War Office and the India Office, it is thus expressly agreed between the India Office and the Colonial Office, that the stores are to be treated in this arbitration as "paid for." Upon this classification and payment the India Office makes the following remark :— "The articles in the list ticked by Sir George Balfour in red ink as armaments or equipments for the guns amounted to 28,2847., out of the 32,3531. at which these stores were valued by the Committee, and if his classification of the stores is correct, the War Office, by their alleged payment of 13,0217. on account of military stores, has actually purchased part of this very equipment for the guns."

The Colonial Office neither admits nor denies the accuracy of this remark, but it submits that the remark is out of place in this arbitration. The India Office is entitled to any benefit it can draw from the fact of this payment as an admission of liability in any . discussion with the War Office, but as the Colonial Office has nothing to do with the funds administered by the War Office, and as the payment was made directly by the War Office to the India Office without the intervention of the Colonial Office, or even, to use the word so much relied on by the India Office, the "conseut" of the Colonial Office, the fact of this payment cannot affect the Colonial Office. Again, the stores for which this Of that payment of 13,0211. was made are expressly excluded from this arbitration. exclusion the India Office cannot complain, for without this exclusion, if the remark upon the classification is accurate, the Colonial Office might fairly have raised the question, whether the India Office was not bound to return to the Colonial Treasury some part of this sum of 13,0211., as money received by that Office from the sale of stores properly belonging to the Colony. But the arbitration between the Colonial Office and the India Office was determined upon after this payment was made or agreed to between the War Office and the India Office, and acknowledging existing facts, so as not to rip up past transactions, was confined by the terms of submission to stores "exclusive of those which On have been taken over and paid for by the War Department on Imperial account." what principle is it open to the India Office to found any argument upon that which is excluded?

XI. But while the Colonial Office accepts the valuation of the ordnance stores at 31,643!., it protests against the attempt of the India Office to raise this amount to the

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sum of 33,1421., and to base its claim in the arbitration upon the enhanced sum. This sum is enhanced on the ground that "the 51. per cent., minus 58. per cent. added, is for Departmental charges, and always forms a charge in such transactions between the War and India Offices." At the risk of wearying the Arbitrator, the Colonial Office must again repeat that this is an arbitration between the Colonial Office and the India Office, and that the Colonial Office knows nothing of the terms of "transactions between the War and India Offices." The pretension of the India Office is unknown in law, or in the adminis- tration either of public or of private business. Even should the Arbitrator hold that the claim of the Colonial Office to the armaments without purchase is untenable, and that the Colony is bound in equity or honour, if it retains, to purchase these armaments, that purchase, the Colonial Office submits, if not requiring a new valuation, must, at the highest, follow the value fixed by the Committee, without the introduction of terms never acquiesced in by, or even brought to the notice of, the Colonial Office.

The Colonial Office therefore submits that the ordnance stores must be taken in this Arbitration, according to the valuation of the Committee, at the sum of 31,6431.; that it is agreed that the War Office has paid 13,0211. as part of this sum, and that the remainder, 18,6221., gives the value of the stores in arbitration.

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XII. One more paragraph, and the Colonial Office will close its criticism on the Case of the India Office. The Colonial Office alleged, early in this supplementary Case, that a fallacy on the part of the India Office ran through its Case in confounding its rela- tions to the War Office with its relations to the Colonial Office. The Colonial Office now contends that it has made good the allegation. The opening sentence of the Case ignores the actual terms of submission, and assumes, without producing any authority, other terms founded on the relations between the India Office and the War Office. Setting out from these assumed terms, the Case becomes in fact a Case against the War Office; and the fallacy shows itself clearly, when in the course of the Case the India Office discusses the appropriation of the 13,0211., and alleges that these stores have not yet been paid for, in face of the terms of submission, which describes them as paid for, and raises the 31,6431. to 33,2421.,-three subjects of argument with which it does not even attempt to connect the Colonial Office.

XIII. In conclusion, the Colonial Office will sum up the reasons upon which it rests the claim made on behalf of the Colony.

The Colonial Office prays the Arbitrator to consult the terms of submission agreed to

by the two parties, and set out both in the Case of the Colonial Office and in this Supplemen- Colonial Office tary Case, as conclusive upon the subject matter of this arbitration. It contends that the Case, pl. principle by which the liability of the Colony mentioned in these terms of submission is to be determined, must be found in the respective rights of the Straits Settlements and the Indian Government at the time of the transfer in the stores left by that Government at that time.

Proceeding from that principle, the Colonial Office has contended in the Case, and now contends, that the Colony is entitled to retain the whole of these stores in arbitration without payment.

In support of this contention, the Colonial Office refers to the four Reasons at the end of the Case. Without recapitulating any of these Reasons, the Colonial Office offers some remarks upon them.

Reasons II and IV were drawn to meet a possible attempt to divide the stores in dispute into two portions: "Guns upon the fortifications, with their equipments," and "armaments and stores which might not come strictly within that description." It must now be taken as agreed, from the description in the Case of the India Office, that the stores India Offer Case, consist of guns and "the equipment of the guns, such as gun carriages, cartridges, p. 3. powder, saltpetre, sulphur, shot and shell, with all the implements, tools, and other articles usually kept in arsenals for the use of guns." Reason IV therefore becomes merged in Reason II, and the arguments under Reason II apply to all the stores. The Colonial Office submits that this description of the stores as "articles kept in arsenals for the use of guns," comes in aid of the argument that they have been made immoveable by destination; and points out the marked difference between this description and the words of the Garrison Order to the Committee of Valuation, who were directed to affix "a money Colonial Office value on all military stores fit and suitable for the use of the troops in the Straits Settle- Cup. K

ments.

Reason III appeals to the course adopted by the Imperial Government on withdrawing from the military occupation of Colonies. In applying this course to the present case, the Colonial Office points out that the guns and carriages are stated in the Indis ce Case to amount to 5,9994. The Colonial Office is informed by the War Department that the ammunition and other stores forming the equipments of such guns according to the

India Ofire Cam p. 5.