duty of not pushing to the limit of irreconcilable difference, the opinion he holds; but on the contrary of modifying his views to some extent within the range to which the testimony may reasonably be held to apply, where he finds an honest opinion, equally strong, adverse to his.

"After much anxious and lengthy comparison of opinions with my colleague, and on the fullest and most careful consideration I have been able to give, I believe it to be my duty to acquiesce in the sum of Four Hundred and Fifty Thousand Dollars in gold, as an adequate money consideration to be paid to the Hudson's Bay Company for the transfer of the rights and claims to the Government of the United States, specified in the Treaty of the 1st July 1863 and do award that sum to be paid accordingly in terms of the said Treaty."

United States Commissioner's Opinion.

The commissioner on the part of the United States, after reciting the provisions of the treaty of arbitration and the treaty of 1846, in relation to the Hudson's Bay Company, said:

"These are the Treaty provisions which mainly control the rights and claims upon which we are to pronounce. There are, however, earlier arrangements between the two Governments respecting the Northwest Territory which ought to be kept in view.

"By the Convention of October 20, 1818, article 3, it was agreed that any country that may be claimed by either party on the northwest coast of America, westward of the Stony Moun tains, shall, together with its harbours, bays and creeks and the navigation of all rivers within the same, be free and open for the term of ten years, from the date of the signature of the present convention, to the vessels, citizens and subjects of the two powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or state to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves.

"Subsequently on the 6th of August, 1827, Convention of 1827. by another convention, the third article of that of 1818 was indefinitely extended and continued in force, subject, however, to be abrogated on twelve months' notice by either party to the other. And it was further declared that neither convention should be construed to impair, or in any manner affect the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains.

"In connection with the negotiation of the convention just mentioned, it is proper to notice the British statement annexed to the protocol of the sixth conference, held at London December 16, 1826, between Messrs. Huskisson and Addington, the

British Commissioners, and Mr. Gallatin, the minister plenipotentiary of the United States. It is mainly a discussion of the grounds of claim urged by the United States to the exclusive Sovereignty of the territory, and so far is not material to be considered. It contains also a statement of the views maintained by the British Government in respect to the joint occupation of the territory, which, in my judgment, have a bearing on the questions before us.

"It commences by stating that, in proposing to renew the arrangement for joint occupation for a further term of years, the British Government regrets it has been found impossible in the present negotiation, to agree upon a line of boundary which should separate those parts of the territory, which might thenceforward be occupied or settled by the subjects of Great Britain, from the parts which would remain open to occupancy and settlement by the United States.

"After a discussion of the claims of the two countries, this statement is made: In the interior of the territory in question, the subjects of Great Britain have had for many years numerous settlements and trading posts: several of these posts on the tributary streams of the Columbia, several on the Columbia itself, some to the northward, and others to the southward of that river.' 'It only remains for Great Britain to maintain and uphold the qualified rights which she now possesses over the whole territory in question. These rights are recorded and defined in the convention of Nootka. They embrace the right to navigate the waters of those countries, the right to settle in and over part of them, and the right freely to trade with the inhabitants and occupiers of the same. These rights have been peaceably exercised ever since the date of that convention; that is for a period of nearly forty years. Under that convention valuable British interests have grown up in those countries.' "To the interests and establishments which British industry and enterprise have created, Great Britain owes protection. That protection will be given as regards settlement and freedom of trade and navigation, with every attention not to infringe the coordinate rights of the United States.'

"Even prior to the making of the first conPosition of the Com-vention of joint occupation, posts were held in pany in Oregon. the country in question, both by the Northwest Company and the Hudson's Bay Company. These posts came subsequently by agreement between the two Companies, into the sole possession of the Hudson's Bay Company. These establishments had been greatly increased in number and value, before the period of the renewal of the convention for joint occupation. At the time of the making of the Oregon Treaty, they had been still further extended and improved, so that the actual possessions of the Company and of the Puget's Sound Agricultural Company embraced a very large and valuable property interest-in fact the most important and valuable of the civilized establishments within that territory. This 5627-17

result had been facilitated by the Act of Parliament of 1821, which authorized the Crown to grant for a period not exceeding 21 years the exclusive privilege of trading with the Indians: exclusive as against all British subjects, but not attempting any interference with the rights of American citizens. In pursuance of this Act, a grant was made of the exclusive trade with the Indians, which became finally vested in the Hudson's Bay Company, and which by renewal was in force in 1846, when the Oregon Treaty was made, and by its terms was to expire in 1859.

"In addition to this right of exclusive trade with the Indians, various powers and duties were, in pursuance of the Act of Parliament referred to, conferred upon the Hudson's Bay Company, having reference to an administration of justice and government.

"It thereby became a quasi-governmental agency of the British Government over its subjects within that territory. Under these favoring circumstances, the Company increased largely in wealth and possessions, and was in great prosperity at the conclusion of the Treaty of 1846.

"It will be observed that not only were the rights of American citizens not interfered with by the Act of Parliament but no right was denied within the territory to any British subject, save that of trading with the Indians. The whole effect in this regard, therefore, of the Act of Parliament and the grants made in pursuance of it, was to close the trade with the Indians against all British subjects in favor of the Hudson's Bay Company. So far as we have been made aware, there was no other legislation by either Government restricting its citizens or subjects from the full and free enjoyment of al the rights embraced in the mutual declaration of the two Governments, that the territory should be free and open to the subjects and citizens of each. The declaration contains no limit, upon the nature of the use to be made of the territory by those who should resort to it, and in the absence of any such expressed limit, the terms employed should receive a large and beneficial construction. They who went into the territory were, I think, at liberty to make such use of it, as it was found to be capable of, for trade and hunting if it were fit for nothing better; for civilization and settlement if that were found to be possible.

"The main purpose and object of the reservation which accompanied the convention of joint occupation and its renewal, was to save the question of ultimate sovereignty from prejudice. And although the legal title to the land may be necessarily included in the idea of sovereignty, so that, notwithstanding settlement and improvement, the settler must be deemed to hold subject to the final adjustment of the question of sovereign dominion, it is not too much to say, that those who first appropriated the lands to the purposes and uses of civilized life, would have acquired an equitable claim to consideration, from

whichever party should in the end be found to be legally the sovereign. Certainly, each Government hoped by emigration and settlement to strengthen itself in the territory, with a view to the final adjustment of the question which was open between them. And I think it can scarcely be supposed, that either Government ever expected, that in a settlement of the disputed sovereignty by negotiation, the other would be willing to abandon its citizens or subjects, as the case may be, without stipulating for appropriate protection.

"The Hudson's Bay Company had, in addition, peculiar claims upon the protection of the British government under whose sanction its establishments were formed. For while it was carrying on trade, doubtless for its own benefit, it was also the sole governmental agency of Great Britain in the vast region in question. Its position of actual possession in the territory, afforded the strongest ground for the expectation on the part of that Government of maintaining its hold upon the territory, at least to the Columbia River.

"Under these circumstances, I think the British Government was bound to afford it protection, and that the statement of the British negotiators in 1827, as to the purpose of their Government in that regard, does not go beyond the measure of obligation due from it to the Company.

"Nor would the measure of that obligation have been less, if the territory had in the end fallen to Great Britain. The possessions of the Company in the territory, acquired with the assent and sanction of the Government, and over which they had first begun to extend the influences of civilization, could not have been taken from them, without a violation of natural justice. It is true that for the purposes of civil government, and the convenient devolution of property, the title to land is deemed to be derived from the sovereign, but its more natural foundation is upon the enterprise and labor of those who first subject it to cultivation and civilized use. So strong is the conviction of the justice of this view, in this country at least, that the rights of original settlers have, I think, never been disregarded, and the laws have, from time to time, been modified and moulded so as to protect this equitable right, even where it had its inception without the sanction of law. The same view is, in my judgment, to be applied to the possessions of the Hudson's Bay Company in this territory, with respect to the British Government.

"They were not held by grant from the Crown, but they were held under circumstances which bound that Government to maintain the Company in those possessions.

"Having thus stated as briefly as I am able, the condition of the Hudson's Bay Company at the time of the Oregon Treaty, and its relations with the Government of Great Britain and the rights and duties growing out of those relations, I proceed to consider the language of the Treaty, in its application to these subjects.

"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 judicial 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