"The preamble, in substance, declares that Possessory Rights. the Treaty is an amicable compromise of the rights mutually asserted over the territory, and made to put an end to a state of doubt and uncertainty, respecting the sovereignty and government over it. This being the declaration of both Governments neither is at liberty in my judgment to go behind it, or to take ground in the construction of the provisions of the Treaty, founded on the assertion of a clear previous right. * * Upon such amicable compromise, it stood upon natural justice, that protection should be extended to the subjects or citizens of either Government, found to be established within the line appropriated to the other, and that the measure of that protection should be equal to the rights of every sort, which existed under the original government. "We are not, however, left to determine what would be the rights and duties of the parties, were the treaty silent upon the subject. They have seen fit to declare, by the third article. of the Treaty, that the possessory rights of the Hudson's Bay Company by name, as well as those of all British subjects, having certain qualifications, should be respected. "The plain object of this provision is to secure protection for the parties, under the newly acknowledged sovereignty of the United States. It should be construed with a view to the futherance of that end, and so as to secure ample and complete protection to the rights which were its object. "The stipulation for protection is the language of both Governments, and therefore whatever possessory rights the Hudson's Bay Company had against either of them, whatever their nature or completeness, whether they were of perfect or only of imperfect obligation, capable of assertion through the judi cial power, or requiring legislative action to perfect them, they are secured and established in right. And the Commissioners being empowered to deal with these questions according to justice and equity, can dispose of them, unembarrassed by considerations which might arrest the action of the ordinary judicial tribunals, and require a resort to the power of legislation. In my judgment then, as well for the reasons I have stated, as for others ably set forth in the argument of the Claimants, the possessory rights of the Hudson's Bay Company included all their rights, save those which related solely to government and administration. "Upon the duration of their enjoyment of Duration of Rights. those rights, the language of the treaty imposes no limit. They did not derive them from the exclusive license to trade with the Indians. The force of that license was the exclusion of others. Had it failed of renewal before the treaty, none of their rights would have fallen with it, save those of government and administration. They would have remained in possession of the lands they occupied, of the right of trade in general, and of the right to trade with the Indians, in common with all other British subjects and American citizens. And if the Government of Great Britain had seen fit to assert its legal ownership of the land possessed by the Company, it could not have done so consistently with equity and justice, without providing compensation. Obligations of the United States. "All these rights were preserved to the Company, in my judgment, by the Treaty; and the corresponding obligations were assumed by the "Upon the question whether these rights have been respected, as the Treaty required, I do not propose to go into detail. No one who reads the history of the affairs of the Company, as related in the evidence, from the time of the Treaty to the time when they by virtual compulsion abandoned their establishments south of the American line, can fail to feel that such respect, as was in fact received, was scarcely commensurate with the extent of the obligations of the Government of the United States. This result was due, in my judgment, in great part to an erroneous view by the Government of the United States, of the extent of its obligations. It seems to have assumed, that it had no duty in the premises, but to leave the Company to the assertion of its rights, in the ordinary tribunals of the country; and that it was at liberty to confine them to such rights as were thus capable of asser tion; and it finally arrived at the conclusion, that all the rights. of the Company terminated with the expiration of the period named in its exclusive license to trade. I do not find that from the time of the Treaty to the present, the Company has voluntarily abandoned any part of its possessions or rights, and I cannot, therefore, on any such ground, diminish at all the measure of redress, to which I conceive the Company to be entitled. * "Coming then, in the last place, to the ques Amount of Compen- tion of the adequate money consideration sation. spoken of in the Treaty, for the transfer to the United States, of all the rights and claims of the Hudson's Bay Company, under the third article, I encounter serious embarrassments. From a mere trifle on the one side, all the way to the enormous sum demanded in the Claimants' memorial, on the other, almost any sum could be supported by testimony, free from criticism, affecting either the fidelity or intelligence of the witnesses. Upon comparing my views with those of my colleague, after we had each separately deliberated upon the evidence, I found that we differed in amounts, and in the directions in which our views might naturally be expected to incline. In every inquiry in respect to such a subject as value, an uncertainty necessarily exists as to the correctness of any particular determination. When upon examination, however careful, a value is set, it is not certain that the decision is free from error, to a greater or less extent, and the limit of this possible or probable error will be greater or less, according to the number and relative certainty of the several elements, which enter into the calculation. Taking this view of the difference between my colleague and myself, I could not feel so sure of the absolute correctness of my own valua tion, as to warrant me in refusing to yield in the direction of his strong convictions, within what I conceived to be the limits of my possible error, especially as I found him not unwilling, on his part, to give due weight to the like considerations. "I considered, moreover, the period which has elapsed even since the Treaty of July 1, 1863, during which the Claimants have been unavoidably delayed in the receipt of their compensation, as properly bearing upon the amount now to be allowed. Upon these grounds I have concluded to unite in an award of Four Hundred and Fifty Thousand Dollars in gold coin of the United States, to be paid according to the terms of the Treaty, as being the adequate money consideration mentioned in the Treaty for the transfer to the United States, of all the possess ory rights and claims of the Hudson's Bay Company, under the third article. Navigation of Columbia River. "It should be added, that our jurisdiction relating only to the third and fourth articles of the treaty of Oregon, we have not considered in any aspect the navigation claims of the Hudson's Bay Company, which are provided for in the second article." In considering the claims of the Puget's British Commmissioner's Opinion on Sound Agricultural Company, the British comClaim of Puget's missioner said that the same observations of a Sound Agricul- preliminary nature which were made in the tural Company. opinion expressed in the case of the Hudson's Bay Company would equally apply, and that the arguments on both sides in that case might be read in connection with those offered in the present. Continuing, then, he said: "The 4th article of the Oregon Treaty provides, that the farms, lands, and other property of every description belonging to the Company, on the north side of the Columbia River, should be confirmed to them; but that 'in case the situation of those farms and lands should be considered by the United States to be of public and political importance, and the United States Government should signify a desire to obtain possession of the whole or any part thereof, the property so required shall be transferred to the said Government at a proper valuation to be agreed upon between the parties.' "The two points which now present themselves for adjudication seem to me to be: “I.—Of what do the farms, lands, and other property consist? "II.-What is an adequate money consideration for their transfer? "The Claimants aver the property to consist of: "1st. A tract at Nisqually containing about 167,040 acres with buildings and improvements; 2nd. The lands at the Cowlitz River containing about 3,572 acres with buildings and improvements; "3rd. Live stock driven away or destroyed, and other personal property for the loss of which they claim compensation. "The Counsel for the United States, however, Company's Legal takes issue on the existence of the legal status Status. of the Company, averring it to be a fraudulent and illegal offshoot of the Hudson's Bay Company; denies that the Treaty acknowledges any property whatever in the Company, confirming only to it such property as it may prove lawfully belonged to it; insists that the proof of lawful ownership is in no way dispensed with; contends that if any compensation at all is due it must be confined to improvements only, and to those on lands actually enclosed; that no claim can be preferred under the Treaty for loss of live stock or other personal property; but that if any loss in respect of these had been sustained, the Company could only have recourse to the courts of law, like other inhabitants of the Territory of Washington. "I have read and considered with much care the ingenious arguments and the numerous authorities offered to sustain these several propositions. I fail to be convinced of the legal incapacity of the Company to acquire property. I can see no ground whatever for attributing to it any fraudulent or even questionable character. I consider that the treaty of 1846, as well as that of 1863, conceded beyond all doubt, both in spirit and in explicit terms, the right of the Company to possess its lands and property north of the Columbia River. "The only questions involving serious diffiMeasure and Amount culty or embarrassment in my mind are to of Compensation. ascertain the extent and boundaries of the farms, lands, and other property of the Company, and to decide as to what is the proper valuation, or adequate money consideration, to be paid on their transfer to the United States. "The sources to which the Commissioners have to look for guidance, in endeavoring to arrive at a just conclusion on these points, are substantially the same as those to which reference has been made in the case of the Hudson's Bay Company. The same difficulties attach to an intelligent appreciation of the evidence offered in this case as in that, whether we refer to the opinions and assertions of witnesses; to the weight to be attached to the offers of compromise; or to the several facts (such as the assessed value for taxation by the local authorities, of the property) enumerated in the evidence, as bearing both on the question of extent and value. "The position of the Puget's Sound Company under the Treaty of 1846 was equally anomalous and unsatisfactory with that of the Hudson's Bay Company. It had in addition to wait for the signification of a desire on the part of the United States to acquire its lands and property; and it was, in the mean time, subject to the inroads of settlers claiming under the local law. "It was exposed to the same recurring acts of aggression against which it was difficult to obtain protection from the local tribunals; and the testimony produced from the local tribunals, and the testimony produced by the claimants, evinces a state of popular feeling within the Territory, against which it seemed, from the outset, hopeless for the Company to contend. There is much force in the argument that the United States, standing in the double relation of sovereign of the newly acquired Territory, and purchaser, at option, of the land, ought not to have the advantage of any depreciation consequent on its own acts. While giving due weight to this aspect of the case, it would perhaps be of little avail, practically, to refer in detail to the difficulties which beset the Company from the year 1846 downwards, and which are so pointedly enumerated in the evidence before the Commissioners. I propose to content myself with stating, in general terms, the views I have formed touching the character and extent of the property for which indemnity ought to be given, and what I think has been shown to be the proper valuation and measure of indemnity in respect of it. "I have already stated it to be my opinion that the title was recognized by the high contracting parties to be a right of ownership in the Company, and that the use of the word 'belonging' did not, as contended for by the United States, imply a restriction to such property as the Company could prove a legal title to, or ownership in. The extent of its possessions, however, was left undecided, and that question now presents considerable difficulty in forming a correct judgment with ref erence to it. "The Company carried on the work, not only of farming, but of raising sheep and cattle. That business required the occupation and use of large tracts for pasturage; and this state of things was known at the time of the Treaty of 1846. That Treaty makes use of language which is manifestly intended to include the lands, and all the property of every description which the company used or possessed; and I cannot accept the modified interpretation contended for by the United States. that it meant to confirm only what the Company could prove a legal ownership in; or that in any case its claim must be confined to such land as was actually closed. The Company had no different title to the lands within enclosures, from what they had to those over which their pastoral occupations extended. Both rested on the fact of possession and use. Enclosures were unnecessary either for the convenience of the company's business, or as evidence of possession in them, for there were no other occupants in the country. They alone possessed, and the segregation of what they possessed by defined boundaries, from other tracts, was a form wholly unsuited to the primitive |