175 



by yon at tlio present stugfc in your proceedings. W« have brou2ht it before you 

 at the earlicsl. convenient opportunity. 



The case; ol'ilie British (Joveniincnt was not orally o|)ene(l,aii(l in our pleadings 

 we hud interposed a denial of the existence of any siicli jurisdiction. If the mutter 

 had been discussed in an opening-, wo might have replied to it, but as it was we 

 could not. Tile case proceeded with the introduction of evidence. Now, if the 

 evidence offered in support of these claims could have been objected .o, we should 

 have interposed the objection that such evidence was inadmissible ; but we could 

 not do tliat, and why ? Because the Treaty expressly requires the Commission to 

 receive such evidence as either Government may choose to lay before it ; to avoid 

 the manifold inconvenience likely to result from discussing the admissibility of 

 evidence, it \va§ stipulated, and we have allowed — J suppose with the approbation 

 ol the Commissioners— every piece of evidence to come in without objection. Wc 

 conceived that we were under obligation to do so. We could not bring the question 

 up earlier, and we bring it up now, just Ijeforo our case commences, and say that 

 we ought to havi; it now decided : first, as a matter of great convenience, because 

 the course of our evidence will be affected by your decision. There is much 

 evidence which we shall be obliged to introduce if we are to be called upon to waive 

 the comparative advantages of mutual tradic, that would otherwise be dispensed with, 

 and that we think ought to be dispensed with. Moreover, we maintain that we are 

 entitled to have your decision now on grounds of precedent. A precisely similar 

 question arose before the Geneva Arbitrjition. The United States made a claim tor 

 indirect or consequential damages. That claim appeared in the case of the United 

 States and its evidence, which were filed on the l.'jth December. The British case 

 was filed at the same time, and on the l.^th of the next April, Lord Tenterderi 

 addressed this note to the Arbitrators : — 



" Gcnem. April 15. 1872. 



" Tlie I'lulpi'siunril. Agi'iii of Ifor r>i-itaniiic ]\I:iJi'.sty, is iiislructod by ITcv ^lajosty'.s (iovcniinpiit 

 to stiik' til Count Scliiiiis, lluit, wliilo prc>si,'iitiii,i,' tlioir Couulor-Case, uiider the siiucial I'l'sin'viitioii 

 liciciiial'tpr iiKJiitioncd, ill ivjily to tlio case which lins been presuntcJ on the part of the United States, 

 tliey tind it ineiindient njioii iheni to inform tlie Arliitrators that a misunderstandiiij,' has unfortunately 

 ari.seii lietui'en (Ircat liritaiu and the I'nited States as to tlio nature and extent of the claims referred 

 to the tribunal by tlii> [st Aitieli^ of the Treaty of AVashinf,'ton. 



" Tlii.H misuiulei'standiiii,' relates to the claims for indirect losses put forward by the Government 

 of the rnileil States, under the several heads of — (\!; 'The losses in the transfer of the American 

 commercial inariiK! to the British tlai,'.' (2.) 'The cnlianced jiaymenta of insurance.' (3.) ' The pro- 

 longation of th(! war, and the addition of a large sum to the oijst of the war and the supi)re.ssion of the 

 the rebellion.' Which claims for indirect losses are not admitted by Iler Majesty's Uovernnient to be 

 within either the scope! or the intention of the reference to arbitration. 



"Her Jlajesty's (lovenimeni have been for some time past, and still are, in correspondence ■with 

 llie Government of the I'nited States upon this subject: and, as this corresjiondeuee has not lieen 

 l/roiight to a linal issue. Her Maji sty's Government being desirous (if possible) of proceeding Avith the 

 I'cfeiHMice as to tile claims for direct losses, have thought it proper in the meantime to present to tlie 

 Arbitrators their C'oiiuter-t.'ase which \i strictly conliiied to the claims for direct losses), in the hope 

 that, liefoie lilt! time liinih.il by iJie \'tli Article of tlie Treaty, this unfortunate misunderstanding may 

 be removed, 



"I'lMt Her Alajc'sty's Government desire to intimate, and do hereby expressly and formally iiitimale 

 and notify to the Avbitialnrs, tiiat this ('oiinter-Case is presented without prejudice to the [losiiion 

 assumed liy Her Majesty's (iovernment in the Ciirrcspondence to which reference has been made, and 



\in(ler till' e\ic.v-!s reservation of all H 

 I'xist lictween the High Conlraeliii 

 arliilratiiai. 



■ If eircunistauccs should render it iieci 

 to lie aildri'.-sed to the Arbitrators ii|iiiii 

 made af er lielbie tlie time 



■■ The Uiidcl''iii,'ned. &i 



Maje-ity's rights, in the event of a dilference continuing to 

 Parties as to the scope and intention of the reference to 



SUIT for Ilor Majesty to cause any fiirthev comnmnication 

 his subject, Her Jlajesty will direct that communication to be 

 limiteil liv the Vlh Article cif the Treat v. 



VSignedl " TEXTERDEX." 



Thereupon, after some further fruitless negotiations, the Arbitrators, of their 

 own motion, proceeded to decide and declare that the indirect claims made by the 

 United States were not within the scope of the arbitration, thus removing all mis- 

 understanding iiy a decision eliminating- immaterial matters from the controversy. 

 The decision was made, and put on record, exactly in ti.e method which we ask you 

 to jiursue here. We say that we are entitled to have such a decision, on the ground 

 of precedent, as well as of convenience; and we say further that \xc arc entitled to 

 have it on the ground of simple justice. No tribunal has ever been known to refuse 

 to declare what, in its judgment, was tiic extent of its jurisdiction. To do so, and 

 receive evidence a|)plicable to tlie subjci-t as to which its jurisdiction is 'controverted, 



[280] 2 B 3 



