c. 158, printed at pages 125 and 129 of the U.S. Answer, Appendix.)

The federal authorities, having satisfied themselves that the Rio Grande River below El Paso, was, for some considerable distance, navigable, in May, 1897, brought a suit in the District Court of New Mexico to obtain an injunction against the Rio Grande Dam and Irrigation Company with a view to preventing the construction of the dam at Elephant Butte, on the ground that it would obstruct and diminish the navigability of the Rio Grande. The record was amended by the addition of the English Company as co-defendants. The suit was dismissed by the District Court; the dismissal was affirmed by the Supreme Court of New Mexico; but the Supreme Court of the United States, on appeal, reversed that judgment, and remitted the matter to the Court of New Mexico for inquiry as to whether the defendants' dam would diminish the navigibility of the Rio Grande within the limits of present navigability, The inquiry was made, and the suit was again dismissed by both the Courts of New Mexico; but, on appeal, was again remitted by the Supreme Court of the United States, for the purpose of the same inquiry. At this juncture, in April, 1903, leave was given by the District Court of New Mexico to the United States to file a supplemental complaint, praying that the rights of the American Company relating to the Elephant Butte undertaking might be forfeited, on the ground that the work had not been completed within five years after the location of the section as required by Section 20 of the Act of March 3, 1891, c. 561 (U.S. Answer, App., pp. 74, 93, and 129). The supplemental complaint was served on the attorney of the American Company but no appearance within the appointed time was entered thereto. A decree of forfeiture was granted

by the District Court, and was affirmed both by the Supreme Court of New Mexico, and, in December, 1909, by the Supreme Court of the United States (U.S. Answer, App., pp. 74-92).

The complaint of His Britannic Majesty's Government, as put forward in the Reply, is that these proceedings were oppressively and indirectly launched and prosecuted with other than their avowed object; and that-

"The real purpose of the litigation appears to have been to defeat the Company's scheme and it is the initiation and relentless prosecution of the suit of which His Majesty's Government complain." (Reply, p. 4.)

More than nine years before the conclusion of this litigation, namely, in April 1900, the English Company had gone into liquidation (Reply, p. 26).

On May 3, 1900, Dr. Nathan E. Boyd was appointed Receiver for the debenture-holders (Reply, p. 43); and on May 4, 1900, the Liquidator of the Company sold the equity of redemption in all the Company's undertaking, assets and rights to the Receiver (Reply, p. 49), the debenture-holders, thereupon, becoming the owners of everything belonging to the Company.

The only remaining facts, relevant to the point of jurisdiction which we have now to decide are connected with the presentation of this case during this session before the Tribunal.

On Friday, November 9, 1923, the British Agent applied for leave to file a Reply. This application was opposed by the United States Agent, broadly, on the ground, that, having regard to the history of the case, the Rules of Procedure, and the defective character of the Memorial, so voluminous a document should not be admitted at so late a moment. After some discussion, having regard to

the desire of both governments to have the case disposed of, it was agreed that the case should proceed, the Reply being admitted, and both sides being at liberty to file additional evidence. Later, on the same day, the following conversation took place between the Tribunal and the Agents on both sides :

"THE UMPIRE: . . . . Mr. Nielsen, you want to present some observations about a preliminary Motion, is not that so?

"MR. NIELSEN: I want to present a Motion that this claim should be dismissed because of the manner in which it is presented, and because there is no showing of any British interest in it, I mentioned one individual whom we have always regarded as the real claimant.

"THE UMPIRE: In the circumstances Mr. Nielsen will explain or deliver up that Motion, and then Sir Cecil Hurst will answer.

"MR. NIELSEN: I shall ask Mr. Dennis to argue that Motion, if it pleases.

"THE UMPIRE: Mr. Dennis will deliver that Motion and then you will give your answer on the Motion, Sir Cecil Hurst.

"SIR CECIL HURST: A reply will certainly be made on behalf of His Britannic Majesty's Government."

(Transcript of Record, 17th Sitting, p. 23.)

The Motion to dismiss the claim was filed on that day by the United States Agent. Broadly, it raised two points :

(I.) The absence of British interest in the claim;

(II.) The breach of the Rules of Procedure in the presentation of the case.

On Monday, November 12, 1923, the British Agent wrote a letter to the United States Agent giving notice that

he intended to argue that a preliminary motion of this character was not contemplated or provided for by the Rules or any of the instruments controlling the Tribunal. This point was in fact taken by the British Agent at the end of his argument made in reply to the Motion, when, he further argued that, if such a Motion was provided for anywhere, on the proper construction of Rules 31, 37 and 38, application for leave to make it must be in writing, and that there had been no such application in writing; and further, that, while under the rules and the exchange of notes read together, an agreement in writing between the Agents, in such case, was necessary, here there was no such agreement, nor, indeed, any agreement at all.

To these arguments there is, in the opinion of the Tribunal, one conclusive answer. Whatever be the proper construction of the instruments controlling the Tribunal or of the Rules of Procedure, there is inherent in this and every legal Tribunal a power, and indeed a duty, to entertain, and, in proper cases, to raise for themselves, preliminary points going to their jurisdiction to entertain the claim. Such a power is inseparable from and indispensable to the proper conduct of business. This principle has been laid down and approved as applicable to international Arbitral Tribunals. (See Ralston's International Arbitral Law and Procedure, pp. 21 et seq.) In our opinion, this power can only be taken away by a provision framed for that express purpose. There is no such provision here. On the contrary, by Article 73 of Chapter III of The Hague Convention, 1907, which, by virtue of Article 4 of the Treaty creating this Commission, is applicable to the proceedings of this Commission, it is declared:

"The tribunal is authorised to declare its competence in interpreting the compromis as well as the

other acts and documents which may be invoked, and in applying the principles of law."

The question, therefore, which we have to decide is this: Whatever our opinion may be as to the forfeiture of the American Company's rights by the courts of the United States, does the English Company possess the interest necessary to support this claim?

Clearly, the debenture-holders, in this respect, are in no better position than their debtors, the English Company, through whom they claim.

To answer this question, it is necessary to consider carefully the provisions of the United States Alien Law, Act of March 3, 1887, c. 340 (U.S. Answer, App., p. 122); it being United States law which is decisive of the validity of this lease. This point, it may be observed, is raised on the face of the record.

The following are the material sections of the Act aforesaid:

"1. That it shall be unlawful for any person or persons not citizens of the United States, or who have not lawfully declared their intention to become such citizens, or for any corporation not created by or under the laws of the United States or of some State or Territory of the United States, to hereafter acquire, hold, or own real estate so hereafter acquired, or any interest therein, in any of the territories of the United States or in the District of Columbia, except such as may be acquired by inheritance or in good faith in the ordinary course of justice in the collection of debts heretofore created:

"4. That all property acquired, held, or owned in violation of the provisions of this act shall be forfeited to the United States, and it shall be the duty of the Attorney-General to enforce enforce every such forfeiture by bill in equity or other proper process." (U.S. Answer, App., pp. 122-123.)