"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 remainand Loss and Daming three items of claim presented to the Commissioners, 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 succumb 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

controversy; and as evidence of the extreme difficulty of forming an accurate estimate of the real value of the rights which were in dispute.

ages.

"If we recur to the opinion of the witnesses Evidence as to Dam- as to the value of the posts and land, and of the trade, those of the Claimants would fairly, and after making very ample allowance for over estimate, justify an award considerably in excess of the lowest sum which the Company was at one time prepared to accept; while in the opinion of the witnesses for the United States, those items of claim are hardly of any appreciable value. It cannot be denied but that during the interval which elapsed between the date of the Oregon Treaty, and their final abandonment of the country, the Company suffered a series of wrongs in disregard of the Treaty stipulations, for which indemnity is properly due to them; but it would serve no good purpose to refer in detail to these acts of aggression, or to the obstacles which from the first had been interposed in the Company's way. "While I hold these general views with Reasons for Agreeing respect to the rights of the Claimants, and to the measure of indemnity they ought to receive, I am not indifferent to the great importance of arriving at a conclusion in reference to the amount to be awarded, in which both Commissioners may concur.

on Award.

"It is obvious that in a case of this nature, where there is ground for much honest difference of opinion, both as to the law and facts of the controversy, each Commissioner must be prepared to make some concession in the views he holds, if a common judgment is to be reached. There is no rule by which the testimony can be appreciated, to warrant the conclusion that a positive sum-no more and no less-is made out in proof. Upwards of 170 witnesses from every part of the continent, and in every possible sphere of life, have been examined in the two claims before us; while the evidence both documentary and other, with the arguments upon it, cover more than 3,500 pages of printed matter. The number and character of these witnesses; their means of information; their disposition to view the claims favorably or the reverse; the grounds they assign in support of their opinions; the elements of value on which each relies in support of his opinion, have all to be weighed and often with reference to facts themselves controverted. By no process of reasoning can I satisfy my mind that I ought to fix particular sum, above or below which, within a reasonthere would be error in going.

on a

able

**

range, "My individual opinion would have been in favor of awarding a considerably larger sum to the Claimants, than that in which my colleague is willing to concur. Yet the inherent difficulties of the case, to some of which I have adverted, would seem to impose on one seeking to perform his judicial functions with impartiality, and to accomplish effectual results, the

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 Mountains, 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 Angust, 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 Decem ber 16, 1826, between Messrs. Huskisson and Addington, the

British Commissioners, and Mr. Gallatin, the minister plenipo tentiary 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 Fany 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 val uable 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