United States, under the treaty of 1846, to "confirm" it in its farms, lands, and other property left open the question of title; (3) that it had no legal title to the lands which it occu pied, either by original grant from a sovereign authority or by occupancy, the country being wild and under no civilized government and the Indian title not extinguished; (4) that, having no legal title, its only right to its lands was the "possessory right" of mere occupancy, which could apply only to lands actually under fence, and for which the utmost that could be claimed was payment for improvements; (5) that it had no claim against the United States for alleged injuries to personal property, such as horses, neat cattle, or sheep, since it had, like other inhabitants of the country, a remedy in the courts; (6) that if, and so far as, the United States applied its land laws to the land claimed by the company the government merely exercised proper rights of sovereignty in discharge of its duty to all the inhabitants, including the company, and in so doing benefited the company; (7) that the claims of the company should on these grounds, and on the ground of exaggeration by false testimony, be reprobated and rejected. In his opinion on the claim of the Hudson's British Commission- Bay Company, the British commissioner said that he proposed to confine himself to the consideration of two points, viz:

er's Opinion on Hudson's Bay Company's Claims.

"1st.-What were the rights of the Hudson's Bay Company as understood by the Treaty of 1846? And what obligations did the United States of America thereby assume in respect of them?

"2nd. What is now an adequate money consideration for these rights and claims?

pany.

"I. The powers of the Hudson's Bay ComRights of the Com- pany, as recognized by the Crown and the Parliament of Great Britain, for many years previous to the Treaty of 1846, were not merely those of a trading company. Motives of public policy on the part of Great Britain had prompted that Government to confer on the Company, in the uncivilized territory over which they extended their operations, authority of a judicial, political and quasisovereign character. So far from being considered as intruders on the public domain, encouragement, in the shape of exclusive rights of trade, and otherwise, was held out to the Company as an inducement to carry their enterprise to regions into

1 Citing Johnson v. McIntosh, 8 Wheaton, 543; Mitchell v. United States, 9 Peters, 711; Dodsley's Ann. Reg. 1763, p. 208; 4 Stats. at L. 730; De Armas v. Mayor, 5 Miller (La.), 132.

which they might extend, and be the representatives of British interests.

"The public faith, was, therefore, pledged towards the Company to secure just and friendly consideration for these interests, wherever the authority of England extended, and in whatever form it might properly be exercised.

* *

"The rights and interests of the Company could hardly be more comprehensively defined than by the expression 'possessory rights.' They exercised no rights which they had not acquired, and which they did not, long before the date of the Treaty, possess, with the knowledge, and by the sanction, of the Crown. I am unable to coincide with the argument of the Counsel of the United States, that the expression 'possessory rights' imported only such fixed improvements on land as a tenant at sufferance might claim. I am, on the contrary, impelled to adopt, as the legitimate interpretation, the general view urged by the Claimants: that it comprehended all things, corporeal and incorporeal, of an appreciable character, of which the Company had the enjoyment.

"It is urged, however, that during the joint occupation preceding the Treaty of 1846, the United States were sovereign, de jure, of the country over which the Hudson's Bay Company's operations extended; that the convention of 1818 merely suspended the exercise of such sovereignty; that Great Britain could not confer, nor could the Hudson's Bay Company acquire any rights in the interim, except those of ordinary occupants; and that the Treaty of 1846 imposed no new obligation on the United States, beyond what its laws extended to other persons in the unauthorized possession of its public lands.

"The convention of 1818 cannot, in my opinion, be construed to recognize, in either party, an exclusive right to the territory, but, on the contrary, only to declare what the previous circumstances in relation to the country, and the concurrent statement of the two governments imported: that the title of neither nation was clear. I do not, however, consider it necessary to found an argument on this, because the language of the Treaty of 1846 seems to me clearly to imply on the part of the United States, an acknowledgment of, and to concede a rightful possession and property in, the Hudson's Bay Company, of the character I have defined, which the Government of the United States assumed the important and substantial obligation of respecting.

Obligation of the
United States.

"This obligation their Counsel contends was fulfilled if the United States Government, by itself or its officers, refrained from direct violation of such rights as the Treaty referred to, and permitted the Company to exercise the judicial remedies customary to the country.

"The Claimants contend for a broader view of the duty, and that under the peculiar circumstances of the country, and the position in which the Hudson's Bay Company was placed,

the attitude taken by the Government and its officers in regard to the rights of the Company under the Treaty, and the fact that trespass and violation in every form were practised, showed a substantial failure to respect, and accord that reasonable measure of protection to their rights, which, in a Treaty stipulation of this character, and with reference to rights of so peculiar a nature, one nation has the right to look for at the hands of another.

"It would be productive of no practical benefit to attempt by general rules, to define the exact measure of duty devolving on the United States in each particular case where a breach of the Treaty stipulation is complained of.

"It was obvious at the time of the Treaty, that the position of a foreign corporation, claiming to exercise almost every right not incompatible with sovereignty, in the territory of the United States, was an anomalous one, and one which would, as between any nations, and even in a maturer state of society, have given rise to innumerable difficulties that could neither be foreseen nor guarded against.

"Those difficulties were aggravated in the present case by the two-fold exercise of authority by the State and the Federal Governments; by the rude and immature condition of society; and by the spirit of individual liberty, bordering on lawlessness, which exists in a new country. It is hardly possible to interpret the precise obligation which the words of the Treaty import, without reference to the practical difficulties which subsequently arose, and which could not then but have been anticipated, and must be presumed to have been in the minds of the high contracting parties. Keeping these considerations in view, I regard the obligations of the United States under the Treaty, to mean, that, cognizant of this state of things, they undertook the correspondingly extensive duty of seeing that the Hudson's Bay Company should not suffer from them, but that the Company would be maintained in the exercise of their rights and property as fully and amply as they had been previous to the Treaty.

"Before entering on a consideration of the Duration of Com- second branch of the case, it is proper to notice Fany's Rights. the objection taken as to the duration of the Company's rights. It is contended on the part of the United States that any rights which the Company might have had were limited as to time, by the licenses of exclusive trade granted by Great Britain, which finally expired in the year 1859, and that after that day the Company's possession was without any color of right whatever.

"I cannot acquiesce in this proposition. The licenses in my opinion had for their object to prevent the danger to the peace of the country, and the well being of the Indians, which might have arisen from the competition of rival traders within the territory. The rights which were recognized in the Company,

as national pioneers, were both antecedent to, and independent of, these licenses.

"Their occupation of the lands, their trading, their posts and other possessions, were not dependent on the license which only superadded the privilege of exclusiveness in favor of the Company, against all but the citizens of the United States. If, at the expiration of the licenses, the British Government had not seen fit to renew them, the rights, property, and interests of the Company would not have been impaired, but must have continued to be respected by the Crown on the grounds of natural justice and equity, although the Company would have been deprived of the power of excluding other British subjects from trading in the country.

"Such is the aspect in which, according to my judgment, the license of trade ought properly to be regarded.

"II. The duty of ascertaining the adequate Amount of Compen- money consideration to be paid to the Hudsation. son's Bay Company by the United States is one of extreme difficulty,-especially if the determination of the sum is to depend on the legal appreciation of the evidence which has been submitted to the Commissioners.

"The claim is presented to the Commissioners under certain specified heads of demand, viz:

"1st. The value of the various posts of the Company.

"2nd. The value of its trade.

"3rd. The value of the right of navigating the Columbia River.

"4th. The loss and damage occasioned by the acts of the United States.

"The means which have been afforded the Commissioners of arriving at a conclusion on these points are:—

"1st. The opinions of numerous witnesses who have been examined on both sides.

"2nd. The offers that have been made, as well on the part of the United States as on the part of the Hudson's Bay Company, at various times since the date of the treaty.

"3rd. Other documentary evidence, and a variety of circumstances connected with the claim, bearing on the question of value, which have taken place since 1846.

Navigation of Colum

"With reference to the item of claim founded on the right of navigating the Columbia River

bia River. (No. 3) the Treaty under which the Commissioners exercise jurisdiction empowers them to examine and decide on all claims arising out of the 3rd and 4th Articles of the Treaty of June, 1846.

"These articles relate to the possessory rights of the Hudson's Bay Company, and to the lands of the Puget's Sound Agricultural Company only-and the stipulations relating to the navigation of the Columbia River are to be found in another, the 2nd Article of the Treaty of 1846.

"No reference is made to the 2nd Article of the Oregon Treaty in that under which the Commissioners hold jurisdiction. It would, therefore, appear that their functions are limited to a consideration of those claims only which arise out of the provisions of the 3rd and 4th Articles.

"The Counsel for the Claimants, however, contends, that even assuming the alternative that the right cannot now be dealt with 'as a distinct and independent ground of claim under the 2nd Article of the Treaty, it is nevertheless a possessory right, giving an enhanced value to all the other possessions of the Company.'

"I have given my anxious consideration to the aspect of the case with reference to the Columbia River, which is thus presented, and am compelled to adopt the conclusion that dealing with any right of navigation secured by the 2nd article of the Oregon Treaty must be considered as ultra vires of the Commissioners.

Posts, Lands, Trade,

"I therefore proceed to discuss the remaining three items of claim presented to the Comand Loss and Dam- missioners, viz: the value of the Company's posts and lands, the value of the trade, and the loss and damage resulting from the acts which have been committed.

age.

*

"The evidence of the Claimants, if it stood alone, might be appealed to, to sustain an award of more than a million of dollars; while the weight of the evidence adduced by the United States would reduce the claim to a very insignificant sum. "Offers on the part of certain functionaries of the United States were made at one time

Disregard of Prior

mise.

Offers of Compro- to pay $1,000,000 for the rights of the two Companies, including the navigation of the Columbia River, as expressed in the draft of a convention prepared by Mr. Webster in 1852; while at another time, in 1860, the company, through Lord Lyons, agreed to accept $500,000 as in full for their demands.

"During the negotiations, various intermediate sums were named as a proper indemnity which it would be just to pay. I cannot regard these negotiations as any evidence of the appreciation by the Company of the true value of their rights. The Company then had well grounded apprehension that they might receive nothing. Congress had declined to vote any sum whatever. The Company no doubt feared that the Treaty stipulation could only be enforced at the risk of involving national strife. They knew that private interests must suc cumb in the presence of, and to avert so vast a danger, and were ready to accept anything which the British Government might indicate its readiness to stand on. I am disposed, therefore, to regard the wide range of these negotiations, and the diversity in the sums offered and agreed to be accepted, chiefly as indicative of the desire of the executive Governments of both countries to arrive at some adjustment of a national