or respected by the United States, the memorial presented a detailed account and valuation, under distinct heads, of the compensation claimed for injuries and for the transfer of all rights and claims to the United States:

1. The first item was for the deprivation of certain lands and trading stations, which were enumerated and valued. Of these it was alleged that the company was deprived by settlers claiming under the land laws of the United States, by the action of the officers of the United States, and by the hostilities between the United States and certain Indian tribes which had, until the treaty of June 15, 1846, been under the control of and at peace with the company. On this score the company claimed the sum of £285,350, or $1,388,703.33.

2. The next item of damage was the loss of the right to trade. This, it was alleged, had been virtually exclusive, and had been destroyed by the deprivation of the lands and trading stations. For this the company claimed £200,000, or $973,333.33.

3. The company also claimed damages for the relinquishment and transfer to the United States of its right to the free and open navigation of the Columbia River. On this score it claimed £300,000, or $1,460,000.

In all therefore the company claimed £785,350, or $3,822,036.67. But in the amended memorial this amount was increased by the sum of £94,500, or $499,900, for the value of certain lands alleged to have been undervalued in the memorial. The memorial was signed by Mr. Day, as counsel for the Hudson's Bay Company.

Argument of Company's Counsel.

The argument of Mr. Day in support of the memorial was full and exhaustive. Tracing the history of the Hudson's Bay Company from the grant of its charter by Charles II, in 1670, he described its rights of trade and proprietorship, as well as its rights of political and civil administration. It was quasi-sovereign over the territory it occupied, and it exercised its functions over a very large portion of the territory that passed under the exclusive sovereignty of the United States by the treaty of 1846. Immediately afterward the company began to feel the effect of the change in its position on its business. It became aware that "it was regarded by the American settlers and by the public authorities with no favorable eye. Urgent representations were made to the British Government, and from

time to time by that Government to the United States, for protection and redress, but with no satisfactory result; and meanwhile the possessions guaranteed to the company were becoming constantly less secure and deteriorated in value, by the hostile and aggressive action to which they were exposed." Passing to the question of the extent of the guaranty assumed by the United States under the treaty of 1846 of the "possessory rights" of the company, Mr. Day submitted five propositions:

"I.

"That under the obligations assumed by the 3rd article of the treaty of 1846, that the possessory rights of the Hudson's Bay Company should be respected,' the United States were bound to protect and maintain the claimants free from all disturbance or aggression arising from the change of sovereignty, in the full and perpetual use and enjoyment of all the possessory rights then held by them; with the exception of such powers and privileges as made part of the essential prerogatives of the new sovereignty.

"II.

เ

"That under the expression possessory rights' was comprehended everything of appreciable value, whether corporeal or incorporeal, of which the Hudson's Bay Company was in the possession and enjoyment in the ceded territory at the date of the treaty consisting:

"1. Of all their posts and establishments, with the buildings and all the land attached to or used in connection with them, and all the personal property.

"2. Of the right of trade.

"3. Of the right of navigation of the Columbia River and its tributaries.

"III.

"That the possessions, property and rights specified in the foregoing proposition, were of the respective values stated in the memorial, and in the motion in amendment thereof.

"IV..

"That the United States have not only failed to protect and maintain the Hudson's Bay Company in its rights, but by their officers and citizens acting under the authority of their Government or laws, have violated and usurped them.

"V.

"That the United States are now liable to the Hudson's Bay Company for the highest value of these rights, at any time between the date of the treaty and the production of the

present claim; which value, with all damage and loss suffered in consequence of such failure and aggression, ought to be the measure of the adequate money consideration to be awarded by this Commission."

Reply of United
States Counsel.

Mr. Cushing, replying to the argument on the part of the company, contended that, in the first place, the obligation of the United States was only to respect the company's possessory rights upon their "future appropriation" of the territory, as provided in the treaty, and that such appropriation would consist in the United States doing one of two things: (1) Taking for its own use such portions of the land as it would need for public purposes, as military reservations, light-houses, etc.; (2) establishing its land system over the territory.

What, in the second place, was the meaning of the term "possessory rights"? It meant, he contended, such rights as grew out of the possession of property, real or personal. But the company did not allege that its possessory rights in personal property had been violated by the United States, and the discussion was therefore confined to the possessory rights of the company in land.

In respect to "possessory rights" in land, it was observed that the company had no fee-simple title to it, because such title could be acquired, under the laws of England and of the United States, only by grant from the sovereign authority, and this the company did not pretend to have had. The company, said Mr. Cushing, was in the territory only by virtue of the license to trade. This created a mere tenancy at will, and the license might expire either by the cessation of the interest of the licensee, by revocation, or by expiration of the title of the licensor. It was laid down as a familiar principle that "the death of either party will of itself revoke it" (a license). By parity of reasoning the license of the company ended when the sovereignty of Great Britain over the territory ceased.

Pushed to their utmost limit, the "possessory rights" of the company, Mr. Cushing contended, were only as follows:

a. Right to the possession of the land occupied by it at time of the treaty.

b. Right to the use and fruit of the land occupied by it at time of the treaty, in the same manner as it was used before. c. To maintain possessory action against trespassers.

d. The duration of these rights to be commensurate with

the license to trade under which the company discharged its functions in the territory.

And even assuming that the license was not extinguished by the acknowledgment of the sovereignty of the United States over the territory, it ceased in 1859, the Crown having rescinded it in 1858 in British Columbia.

The possessory rights of the company having been thus defined, Mr. Cushing maintained that the obligation on the part of the United States to respect them simply required that they "should not, by any act of their own or their officers, invade those rights; and that they should extend proper judicial remedy for their protection." So far as the company complained of unauthorized trespassers upon its possessions, the United States was, said Mr. Cushing, in no sense responsible.

Mr. Cushing declared that $250,000 would be a large allowance for the transfer of all the claims and rights of the Hudson's Bay Company to the United States.

The memorial in the case of the Puget's Claim of Puget's Sound Agricultural Company, after reciting Sound Agricultural the fourth article of the treaty of 1846, set

Company. forth that the United States had neither confirmed the company in the possession of its lands nor signified any desire for a transfer of them, as provided in the treaty, at a valuation, "and that by reason thereof, and of the acts and proceedings of officers of the United States, and of American citizens, and of others assuming to act under the authority of the laws, or of the Government of the United States, the company were deprived of the use and enjoyment of a large portion of their lands, farms, and other property, and of the rents, fruits, and profits thereof; their pasturage was destroyed or taken from them; their live stock killed or driven off, and wholly lost to them; and their entire business broken up or rendered unprofitable." For these various losses the company claimed £240,000, or $1,168,000. Many of the arguments used in support of the claim of the Hudson's Bay Company were employed in the case of the Puget's Sound Agricultural Company. Mr. Cushing opposed the claim on the Opposition of United ground (1) that the company, having been formed by the Hudson's Bay Company for purposes which the latter could not rightfully pursue, and having no charter from the Crown, was fraudulent in its origin and had no legal existence; (2) that the obligation of the

States Counsel.

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 occupied, 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 er's Opinion on that he proposed to confine himself to the conHudson's Bay Comsideration of two points, viz: pany'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?

Rights of the Company.

"I. The powers of the Hudson's Bay Company, 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.