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Maps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed bf ginning in the upper left hand corner, left to rignt and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc.. peuvent Atre filmte d des taux de r6duction diff^rents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA. 11 ert f limA A partir de Tangle supArieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nAcsssalre. Les diagrammes suivants illustrent la mAthode. I 1 2 3 J2X \ :4 ■ 2 3 4 5 6 EXTENT AND VALUE or THE POSSESSORY RIGHTS or THE HUDSON'S BAY COMPANY IN OREGON, SOUTH OF FORTY-NIiNTH DEGREE. 3T^<^'1 • * • • • • t « ■ * , • V • • • • ' ••* -'^m I • • "i*-. pVjfi,^ V PROPOSITION OF HUDSON'S BAY COMPANY. •!.t' [Confidential.] Hudson's Bay House, Lachine, January 11, 1848. My Dear Sir ; With reference to our conversation, when I had the pleasure of seeing you in Montreal, about two months ago, on the subject of a sale of the Hudson's Bay Com* pany's and Puget Sound Company's possessions, &c., west of the Rocky mountains, south of latitude 49°, either to the United States government or to a joint stock company, I should be glad to know, as early as possible, if there is any probability of your being in a condition to make a proposition in time to enable me to communicate thereon with the governor and committee in England before taking my departure for the interior, soon after the opening of the navigation. The Hudson's Bay Company have, south of 49°, thirteen trading establishments or vil- lages, situated on the most eligible sites as regards commerce, water power, agriculture, and dealings with the natives, while their flocks and herds pasture over large districts of country; such occupation of itself forming a good title to the districts in question. Our possessions, moreover, embrace the very best s'-uations in the whole country for oflensiva and defensive operations, towns and villages, wi ile our right of navigating the Columbia, which we hold in perpetuity, inasmuch as our charter is interminable, is saleable and trans- ferable. According to my construction of the term " possessory rights" in the treaty, it secures to us the right to cultivate the soil, to cut down and export timber, to carry on the fisheries, to trade for furs with the natives, and all other rights we enjoyed at the time of framing the treaty; but the term is so comprehensive as not to be easily defined. As regards the Hud« son's Bay Company's interest, there is a feeling among the residents in the country that our business is likely to benefit rather than be injured by the sovereignty of the country, might lead to endless disputes, which might be productive of difficulties between the two nations, and would therefore feel disposed to submit to a very great sacrifice, in order to avert dan- gers "Skso grave a nature, by selling their lands, flocks, herds, rights of trade and navigation, &c., and withdraw within the British territory, north of 49°, if they could obtain but a moderate consideration for the same. Such consideration would indeed be moderate at_on3^ million of d ollars,j )ayable within a reasonable period. But for the reasons stated above, I should fee! myself authorized to conclude an arrangement at that amount, which on a rough estimate is little more than the outlay incurred in the erection of buildings, fencing, bringing land into cultivation, and other improvements, and importing stock since our first occupatioa of the country. If your government were to look at the importance of getting a powerful trading association, belonging to a formidable neighboring, out of its territory, and to the great value of the real property that would bo acquired; besides securing to the United Stales the exclusive navigation of the Columbia river and a valuable trade in furs, with other branches of commerce, now carried on by the Hudson's Bay Company, I should think that it would readily avail itself of so favorable an opportunity for accomplishing those de- sirable ends. In speaking of the possessions of the Hudson's Bay Company, I include those of a large pastoral and agricultural association, formed under their auspices, styled the Puget Sound Coirpany, who, as well as the Hudson's Bay Company, have incurred very heavy outlay in the introduction of the most approved breeds of sheep and cattle from Europe and other parts of the world. Their flocks and herds arc now exceedingly numerous, roaming over hundreds of miles of the finest country for agricultural operatiois west of the Rocky moun- tains, including fine water power for machinery, and several of the best sites for towns and villages on the shores of Puget's Sound. This association was formed in 1839, with a capi- tal of £100,000 sterling; and so promising and p^-oductive is it, that it has this season divid- ed ten per cent, on the paid up capital, while the stock on hand is valued at less than one third of its original cost. As a commercial operation an arrangement on the terms I have proposed would be highly advantageous to the purchasers, by the resale of the real property and the large fiooks, herds, and bands of horses, throwing aside, altogether, the national advantages arising from secur- ing the exclusive navigation of the Columbia and of portions of the territory and trade now enjoyed by the British subjects ; and I cannot help thinking that if you got this subject brought fairly before your government or leading capitalists, it could not fail to receive the most prompt and favorable consideration. I remain, dear sir, very faithfully, yours, G. SIMPSON. George N. Sanders, Esq., New York, CO dit ha' ma def poi ma Li ^ LETTER FROM SIR GEORGE SIMPSON. > <.i. Hudson's Bat Hottse, Lachine, C. E., Novtmber 14, 1848. Dear Sie: In your negotiation with the United States government for the sale of the company's possessory rights in Oregon, I do not know whether you have omitted the coo] dition of our establishment as regards defence. . • All those establishments, say thirteen in number, as per list annexed, the sites of which have been carefully selected for offensive and defensive operations, and for the military com- mand of tlie country, are protected by strong picketing and corner bastions, rendering them defensible against Indians, or other irregular force, while the possession of C.^pe Diaap> pointment, which is a position of great strength, affords the holders thereof the entire com* maud of the navigation of the Columbia "ver. ,^ , ,^ ;•,<,, J/,' ^/v -^ I am, dear sir, your most obedient servant, G.SIMPSON. George N. Sanders, Esq., New York. List of the Hudson's Bay Company''s establishments, referred to in the annexed letter. 1. Cape Disappointment. 2. Fort George. 3. Fort Vancouver. ^ 4. Fort UnAqua. //MIa 5. Fort Ha 6. Fort Hall. 7. Fort Bais^e. ana Halla. />_ CL l*-^ /fhS^/TmC. 8. Fort Okunagan. 9. Fort Colvill. lO.Tiootonais. 11. Flat Heads. 12. Nisqually. 13. Cowilitz. 6 FROM MAJOR J. L. MEEK, MARSHAL OF OREGON. Washikgton, August 19, 1848. My Deae Sir: With reference to your inquiry as to my idea of the value of the Hudson's Bay Conipany estaWishmcnt, of Fort Vancouver, which, in fact, from the number and ex- tent of the buildings may be considered a small town, I think, after much consideration, I am under the mark in saying that it must have cost the Hudson's Bay Company at least $200,000, independent of the very heavy outlay incurred in bringing into cultivation several thousand acres of land, fenced in and under crop, from year to year. It may be proper to add, that Fort Vancouver is situated on the most eligible spec on the Columbia river, within »hip navigation, for the site of a town; and that Bellevue point, on which it is situated, must, in due time, become the site of the capitol of Oregon. Fort Vancouver, you are aware, is the principal depot of the Hudson's Bay Company, on the west side of the Rooky moun- tains; and its defences, with a small force within the fort, are quite sufficient to afford pro- tection to a large population against any attack from the natives. JOSEPH L. MEEK, »* ^ «•.*!• \- X M t LEGAL OPINION OF R. S. COXE. Washington, July 26, 1848. Sir : You have requested my views of the territorial rights of the Hudson's Bay Company and Puget Sound Company within the region of country lying to the south a the line established by the treaty between the United States and Great Britain of the 15th June, 1846. The subject is not free from difficulties. In its practical operation it involves matters of fact as well as law, and it is obviously impossible to anticipate the various circumstances which may materially modify or even prevent the application of the general principles which must ultimately govern the case. The third article of the treaty referred to in your inquiry provides that, " in the future appropriation of the territory south of the 49th parallel of north latitude, as provided by the first article of this treaty, the possessory rights of the Hudson's Bay Company, and of all British subjects who may already be in the occnpation of land or other property, lawfully acquired within the said territory, shall be respected." The fourth article provides that " the farms, lands, and other property ol every description belonging to the Puget Sound Agricultural Company on the north side of the Columbia river shall be confirmed." The treaty, therefore, recognises and confirms the existing rights, whatever they be, but famishes no light in ascertaining what those rights actually are. For this we must have recourse to extraneous sources of information. It is, I think, clear, that in deciding this point, reference must be had to the law of Eng- land, which must furnish the rule by which these rights are to be defined; and to that general law, as bearing upon the charters or original grants of title, and the various statutes of Great Britain by which it may be modified or controlled. The original charter of the Hudson's Bay Company is said by I^Ir. Greenough to have been granted by Charles II., on the 16ih May, 1669, (p. 455.) Anderson, in his History of Commerce, (vol. 3, p. 25.) gives the date of this grant as the 2d May, 1670. I have not been furnished with an authentic copy of this charter, and have relied upon the above cited authors for my knowledge of its provisions. According to them, its language is very comprehensive. It comprehended not only '•' the whole trade and commerce of those seas, straits, and bays, rivers, lakes,' &o., but " all the lands, countries, and territories upon the coasts and coHr fines ot the seas, straits, bays, lakes, rivers," &c. The terms of this charter nearly resemble those granted to some of the colonies upon this continent by the British crown, which have ever been construed to confer a proprietary interest in the soil as well as a modified sovereignty over the entire country granted. Such grants are not, in general, to be interpreted by the same rules which govern in the construction of private conveyances between individuals. 8 i The territory on the west coast of America was not comprebendeJ within this eriginal charter, but its general provisions have been extended to that region by subsequent acts. The statute 43, George III., passed on the 11th August, 1303; that of July 2, 1831; the royal grant of 21st December, 1S21. and another still more recent, to be found in Grcenough, extend the territorial rights to this northwest country, and modify in some particulars the terms of the original grant. Had the territory in question been ascertained to be within the absolute control and sovereignty of Great Britain, it would have been difficult to pre- scribe any limits to the territorial rights of the Hudson's Bay Company. The convention between that government and the United States of October, 1818, and the express savirg of the rights of th^ United States in the last grant to the company, materially affect this branch of the case. Under these Circumstances the treaty of June, 1846, was framed, and its language must be construed with reference to the foundations upon which the rights of the company then rested. It is well known that the Hudson's Bay Company not only appropriated to its own particular and exclusive use various tracts of lan'l lying within the general description in the grant to it, but also exercised the power of making grants of extensive tracts to sub- purchasers. The objects of the company, originally chiefly commercial and mainly confined to the fur trade, enlarged in the progress of time, and became vastly more comprehensive. Mr. Greenoijgh says, (p, 33:) '•' The Hudson's Bay Company's astablishments in Oregon have been, until recently, devoted entirely to the collection of furs, but within a few years nrany farms have been laid out and worked, and large quantities of timber have been cut and sawed and exported to the Sandwich Islands and Mexico, for the benefit oi" the com- pany." The Hudson's Bay Company's establishments west of the Rocky IMountains are called forts, ami are all sufficiently Ibrtitied to resist any attacks which might be expected. Thjy arc by tlie latest accounts twenty-two in number, of which several are situated on the coasts. — Ibid. Captain Wilkes (vol. 5, p. 126) estimates the number of the forts occupied by the company at twenty-five, and says they " are located at the best points for trade, and so as to secure the resort of the Indians without interfering with their usual habits." It must, I apprehend, be couccdeJ that the possessory rights of the company are secured by the treaty as they existed at its date under the authority of the British government. They appear, with the knowledge and at least the implied sanction of that government, to have exercised an unlimited authority, as well to grant to others as also to appropriate in severalty the absolute proprietorship of such lands as they pleased. No particular for- mality was prescribed or seem.s to have been required or folli)-ved in segregatmg these par- ticular portions from the commou mass; and, indeed, any such would obviously have been unnecessary and superfluous, As against British subjects, at least, what was not conveyed to others was reserved to themselves. Any act indicating the intention must necessarily have been all-sufiieient. It cannot, in my judgment, and fr<:m the evidence accessible to me, be contended, with any shadow of reason, that actual surveys, lines of exact demarkation, enclosures, or anything else defining and circumscribing the extent of ground thus appropri- ated or reserved, such as might bo necessary in the case of a private individual asserting an adverse possessory rigiit against a paramount legal title, can, under any circumstances, be required as an essential foundation or support of the title of the company. The foiling of timber sparsum througliout a tract of forest land, the pasturing of cattle over plains and hills, are all legal acts of ownership, and, under circumstances, would constitute the most conclusivo evidence of such possessory rights as arc recognised and protected in the treaty of June, 1846. In regard to the Puget Sound Agricultural Company, the information which I possess is even less distinct and authentic. I am not informed whether it is a private association of individuals, or an incorporated company; whether it holds by immediate grant from the crown, by authority of statatary enactment, or with the consent and under sub- purchase from the Hudson's Bay Company. This latter may be presumed to be the tenure by which they hold. However this may be, the right of the company to the farms, lands, and other property M every description belonging to it, is fully ".'onftrmed by the treaty. Captain Wilkes (vide supras) says in relation to it, that, although they have made no divi- dends, the accumulation of their live stock may be considered as an equivalent for monied profits. In the event, however, of the country becoming the abode of a civilized community, the farms and other land possessed by the company must become very valuable, as the posts occupy all the points most favorably situated for trade, and the agricultural establishments for farming operations. Under all the circumstances of the case, and with the very limited means of mforraation at my command, it is maniles* that, in answering your inquiry, I can do little more than state general rules and principles, leaving the application of them to particular cases until the precise circumstances of such cases shall be ascertained. It will doubtless occur, unless prompt measures be taken to prevent the evil, that a vast amount of troublesome and expensive litigation, and pos: ibiy even national controversies, may be expected to grow out of this subject, materially impeding the settlement of the country, and seriously retarding its progress in improvement. RICHARD S. COXE. Geohsk N. Sanders, Esq OPINION OF MR. WEBSTER UPON THE NAVIGATION OF THE COLUMBIA RIVER. ■Washington, Au»ust 16, 1848. Sia : In answer to your further inquiries I have to state, that, in my opinion, the reserva- tion of the right in the Oregon treatv to navigate the Columbia river, enures to the benefit of the Hudson's Bay Company alone. The object was not a general grant of privilege to English commerce, or English subjects, generally. It is quite clear, that if the company agree to release or extinguish their rights, it is anni- hilated, and the reservation contained in the treaty is gone forever. DANIEL WEBSTER. Georce N. Sanders, Esq 10 CASE HAVING REFERENCE TO THE ACCOMPANYING DOCUMENTS. The opinion of counsel is required on the following questions j viz : Firstly. Au to the nature of the rights of the Hudson's Bay Company over its territories ; how those rights were acquired ; and in what manner now secured ? Secondly. What the expression " possessory rights," contained in the treaty between Great Britain and the United States, herewith submitted, comprehends ? Thirdly. Waether the use of the Columbia -iver, under the terms of that treaty, continues to Britii^h subjects in case of the surrender by the Hudson's Bay Company of its territory to the United States ? The opinion being required for foreign information and perusal, counsel is requested to j.repare it with reference to tiiat object. (I OPINION. The nature of the rights of the Hudson's Bay Company over its territories cannot be better defined than in the words of the Royal Charter from Cliarles II., dated the 2d May, 1670. After the ordinary grant of incorporation, with the powers incident thereto, and after providing for the internal regulations of the body, the charter goes on to declare— "And to the end the said (xovernor and Company of Adventurers, of England, trading " into Hudson's Bay, may b3 encouraged to undertake and edectuallv to jrosecuto the said " design of our more especial grace, certain ...lowlcdge and mere motion, we have given, " granted, and coniirmed, and, by these presents, for us, our heirs and -juccessors, do give, " grant, and confirm unto the said Governor and Company, and their successors, the solo " trade and commerce of all those seas, straits, bays, rivers, lakes, creeks, and sounds, in " whatsoever latitude they shall be, that lie vithin the entrance of the straits commonly " called Hudson's Straits, together with all the lands and territories upon the l .itries, " coasts, and confines of the seas, bays, lakes, rivers, creeks, and sounds a.bresaid, that are " not already actually possessed by, or granted to, any of our subjects, or possessed by tho " subjects of any other Christian prince or State, with the fishing of all sorts of fish, whales, " sturgeons, and all other royal fishes in tho seas, bays, inlets, and rivers within the premises, " and tho fish therein taken, togolhor with tiic royalty of the sea upon the coasts within tho " limits aforesaid; and all mines royal, as well discovered as not discovered, of gold, silver, "gems, and preciou« Svi.nes to be found or discovered within the vri'itories, limits, and 4 11 NYING mSj VIZ : I territories j .ty between y, continues territory to requested to lot be better [ay, 1670. 3, and after and, trading :uto tlie said have given, )rs, do give, •rs, tiie sola [1 sounds, iu I commonly I «- .1 tries, id, that are sssed by tho sh, whales, e premises, within tho jold, silver, limits, and " places aforesaid ; and that the said land be, from henceforth, reckoned and repnted as one " of our plantations oc colonies in America, called Rupert's Land. And, further, we do, " by these presents, tor us, our heirs and successors, make, create, and constitute tie said" " Governor and Company, for the time being, and their successors, the true and bsolute " ?' ids and proprietors of the same territory, limits, and places aforesaid, and of .ul other " the premises, saving always the faith, allegiance, and sovereign dominion due to as, our "heirs and successors; for tho same to have, hold, possess, and enjoy the said territory, " limits, and places, and all and singular other the premises hereby granted as aforesaid. " with their and every of their rightS; members, jurisdictions, prerogatives, royalties, and " appurtenances whatsoever to them the said Governor and Company, and their successors. '•' forever to be holden of us, our heirs and successors, as of our manor of East Greanwioh, " in our county of Kent, in free and common soccage, and not in capite, or by knights' ser- " vice, yielding and paying yearly to us, our heirs and successors, for the same, two elks and " two black beavers, whensoever, and as often as we, our heirs and successors, shall happeit " to enter into the said countries, territories, and regions hereby granted. " And further, our will and pleasure is, and by these presents, for us, our heirs and succes- " sors, we do grant unto the said Governor and Company, and to their successors, that it shall " and may be lawful to and for the said Governor and Company, and their successors, from " time to time to assemble themselves for or about any the matters, causes, affairs, or busi- " ness of the said trade, in any place orplaccs for the same, convenient within our dominions " or elsewhere, and there to hold court for the said Company and the affairs thereof. And, ' ' also, it shall and may be lawful to and for them, and the greater part of them, being so as. " sembled, and that shall then and there be present, in any such place or places, whereof the " Governor c.- his deputy, for the time being, to be one, to make, ordain, and constitute such *' and so many reasonable laws, constitutions, orders and ordinances, as to them, or the " greater part of them, being then and there present, shall seem necessary and convenient " l"or the good government of the said Company, and of all governors of colonies, forts and " plantations, factors, masters, mariners, and other officers employed, or to be employed, in " any of the territories and lands aforesaid, and in any of their voyages, and for the better " advancement and continuance of the said trade, or traffic and plantations, and the samp " laws, constitutions, orders and crilinances, so made, to put in use and execute accordingly, " and at their pleasure to revoke and altrr the same, or any of them, as the occasion shall " retjnlrc. And that the said Governor and Company, so often as they shall make, ordain, " or establish any such laws, constitutions, orders, and ordinances, in such form as aforesaid^ " shall and may lawfully impose, ordain, limit and provide, such pains, penalties, and " punishments, upon all offenders, contrary to such laws, constitutions, orders and ordmances, "or any of them, as to the said Governor or Company, for the time being, or the greater " part of them, then and t'lere being present, the said Governor or his deputy being always " one, shall seem necessary, requisite, or convenient for the observation of the same laws, " constitutions, orders and ordinances, and the same fines and amerciaments shall and may, " by their officers and servants, from time to time to be appointed for that purpose, levy, " take and have, to the use of tho said Governor and Company, and tlieir successors, with- "out the imp.-diment of us, our heirs and successors, or of any tho officers or ministers of us, " our heirs or successors, and without any account thercfer to us, our heirs and successors, ' to be made. All and singular which laws, constitutions, orders and ordinances, so as " aforesaid to be made, we will to be duly observed and kept under the pains and penalties 12 ! 1 ** therein to be contained; so, always, as the said laws, constitutions, orders and ordinances, " tines and anr.erciaments, be reasonable, and not contrary or repugnant, but as near as naay " be agreeable to the laws, statutes, or customs of this our realm. • "And, lurlhermore, of our ample and abundant grace, certain knowledge, and mere mo- " tlon, we have granted, and, by these presents, for us, our heirs and successors, do graut, " unto the said Governor and Company, and their successors, that they, and their successors, " and their factors, servants, and agents, for them, and on their behalf, and not otherwise, "shall, and forever hereafter have, use, and onjoy, not only the whole, entire, and only trade " and traffic, and the whole, entire, and only liberty, use, and privilege, of trading and traf- " ficking to and from the territory, limits, and places aforesaid, but also the whole and en- " tire trade and trafHc to and from all havens, bays, creeks, rivers, lakes, and seas, into " which they shall find entrance or passage, by water or land, out of the territories, limits, " or places aforesaid; and to and with all the natives and people inhabiting, or which shall " inhabit, within the territories, limits, and places aforesaid ; and to and with all other na- " tions inhabiting any of the coasts adjacent to the said territories, limits, and places, " which are not already possessed as aforesaid, or whereof the sole liberty or privilege of " trade and traffic is not granted to any other of our subjects. " And we, of our further royal favor, and of our more especial grace, certain knowledge, "and mere motion, have granted, and, by these presents, for us, our heirs and su3cessors, " do grant, to the said Governor and Company, and to their successors, that neither the said "territories, limits, and places, hereby granted as aforesaid, nor any part thereof, nor the " islands, havens, ports, cities, towns, or places thereof, or therein contained, shall be vis- " ited, frequented, or haunted, by any of the subjects of us, our heirs or successors, contrary " to the true meaning of these presents, and by virtue of our prerogative royal, which we " will not have, on that behalf, argued or brought into question ; we straightly charge, " command, and prohibit, for us, our heirs and successors, all the subjects of us, our heirs '' and successors, of what degree or quality soever they be, that none of them, directly or " indirectly, do visit, haunt, frequent, or trade, traffic, or adventure, by way of merchandise, "into or from any of the said territories, limits, or places hereby granted, or any or either " of them, other than the said Governor and Company, and such particular persons as now " be, or shall hereafter be, of that company, their agents, factors, and assigns, unless it be " by the license and agreement of the said Governor and Comjjany, in writing first had and " obtained under their common seal, to be granted — upon pain that every such person or per- " sons that shall trade or traffic unto or from any of the countries, territories, or limits " aforesaid, other than the said Governor and Company, and their successors, shall incur out " indignation and the forfeiture and the loss of the goods, merchandise, and other things " whatsoever which so shall be brought into this realm of England, or any of xh", dominions " of the same, contrary to our said prohibiiion, or the purport or true meaning of these " presents ; for which the said Governor and Company shall find, take, and seize, in other " places, out of our dominions, whore the said compaay, their agents, factors, or ministers, " shall trade, traffic, or inhabit, by virtue of these our letters patent ; as also the ship and " ships, with the fu nituro thereof, wherein such goods, merchandise, and other things shall " bo brought and found ; the one-half of all the said forfeitures to be to us, our heirs and " successors, and the other half thereof we do, by these presents, clearly and wholly, for us, " our heirs and successors, give and grant unto the said Governor and Company, and their " successors. 13 dinances, r as may mere mo- do grant, iccessors, therwise, )nly trada and traf- e and en- seas, into es, limits, lich shall other na- d places, rivilege of lowledge, uocessors, ir the said )f, nor tha all be vis- contrary which wo ly charge, , our heirs lirectly or rchandise, { or either ns as now niess it be it had and on or per- , or limits incur our tier things dominions of these , in other ministers, ship and ings shall heirs and ly, for us, and their ' And, further, all and every the said ofTenders, for their said contempt, to Buffer sucb " other punishment as to us, our heirs and successors, for so high a contempt, shall seem " meet and convenient ; and not to be in any wise delivered until they, and every of them, " shall become bound unto the said Governor, for the time being, in the sum of one thousand " pounds at the least, at no time thereafter to trade or traffic into any of the said places, " seas, straits, bays, ports, havens, or territories aforesaid, contrary to our express com- " mandment in that behalf, set down and published. "And, further, of our more especial grace, we have condescended and granted, and by " these presents, for us, our heirs, and successors, do grant unto the said governor and com- " pany. and their successors, that we, our heirs, and sucessors will not grant liberty, licenr^e, " or power to any person or persons whatsoever, contrary *o the tenor of these our letters " patent, to trade, traffic, or inhabit unto or upon any of the territories, limiis, or places " afore specified, contrary to the true meaning of these presents, without the consent of the " said Governor and Company, or the most part of them." After the mention of sundry other minor privileges, there is a farther grant, as follows: " And further of our especial grace, certain knowledge, and mere motion, we do, for us, our " heirs, and successors, grant to and with the said Governor and Company of adventurers of " England, trading into Hudson's bay, that all lands, islands, territories, plantations, forts, '' fortifications, factories, or colonies, where the said companies, factories, and trade are, or " shall be, within any the ports or places afore limited, shall be immediately and from hence- " forth under the power and command of the said Governor and Company, their successors " and assigns; saving the faith and allegiance duo to be performed to us, our heirs, and buo- " cessors as aforesaid. And that the said Governor and Company shall have liberty, full "power, and authority to appoint and establish governors and all other officers to govern " them; and that the governor and his council of the several and respective places where the "said company shall have plantations, forts, factories, colonies, or places of trade, within " any the countries, lands, or territories hereby granted, may have power to judge all per- '-' sons belonging to the said Governor and Company, and shall live under them in all causes, " whether civil or criminal, according to the laws of this kingdom, to execute justice ' accordingly." The territories mentioned in this charter are: " All those seas, straits, bays, rivers, lakes, " creeks, and sounds, in whatever latitude they shall be, that lie within the entrance of the "straits commonly called Hudson's straits, together with all the lands, countries, and " territories upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks, " and sounds aforesaid, which are not now actually possessed by any of our subjects, or by '■ the subjects of any other Christian prince, or state." This grant is a perpetual grant, and, as such, has been recognised by repeated legislative enactments. In the year 1819, difficulties arose between the Hudson's Bay Company and the ' North* west Company of Montreal,' an association of persons formed for like trading purposes^ respecting the exclusive right of trading on the territories mentioned in this grant, and the animosities and feuds arising from this competition between the companies led to such serious broaches of the peace, that Parliament was ■ ^impelled to interpose to put an end to them. Accordingly, by the act of 1st and 2d George IV., chap. 66, the crown was empowered to make grants, " under the hand and seal of one of the principal secretaries of state, to 14 ii:il " any body corporate or company, of such parts of North America as shall be specified in " those grants, not being part of the territories theretofore granted to the Hudson's Bay " Company, or any of the North American provinces, or of the United States of America." By a grant executed under the authority of this act, bearing date the 5th of December, 1821, the Hudson's Bay Company acquired " an exclusive right of trading in all such parts " of North America to the northward and westward of the lands and territories of the " United States, as do not form any part of our provinces of North America, oi- of the " United States." This grant was given for a period of twenty-one years; at the end of which time it was renewed for a like further period of twenty-one years. Under the authority of this act and grant, and of other acts, the Hudson's Bay Company have taken possession of and cultivated lands, erected forts and houses, and exercised various other acts of ownership and possession, and have been invested with a civil and criminal jurisdiction over the territory. The effect of these grants is not to deprive the Hudson's Bay Company of any of the ter- ritory or rights, secured under the original charter from Charles 2d, nor in any way to limit the duration of those rights. It appears to me, therefore, that the right of the Hudson's Bay Company over the territori'js mentioned in the original grant, are those of sovereignty and ownership, and that on the other lands they have, in addition to the exclusive right of trading secured to them by the license, acquired the rights of individuals who have improved the soil, built habitations, and otherwise possessed and used property, in good faith, with the con- sent of the owner, during a long series of years. These rights, which the good faith of the government would be bound to recognize, have been protected by the treaty. On the second question, with reference to the reserve of the possessory rights of the Hud- son's Bay Company, contained in the third article of the treaty, two points arise, namely: Firstly, what is the nature? and, secondly, what the local extent of the rights herein spoken of? On the first question I am clearly of opinion that the right is such a fixed right, in the soil, as would, in law, prevent its alienation to others. There is not in my mind, any doubtj but that an action would be at the instance of the party in possession for any interruption in tliat possession: the right must be looked to with reference to the object for which it was given, and the purposes for which it was intended to be applieu. The second branch of this question involves more difficulty. To determine the local extent of the right, reference must again be had to the object for which the grant was given, and the expressed intention of the legislature with reference to those objects. A due estimate of tiiese considerations leads to the conclusion, that the In- gislature meant that the possession should extend over the whole territory. We fin 1 a civil and a criminal jurisdiction given in tlie following words : " That it shall be lawful for bis Majesty, if he shall deem it convenient so to do, to issue " a commission or commissions to any person or persons, to be and act as justices of the " peace within such parts of America as aforesaid, as well within any territories heretofore " granted to the company of adventurers of England trading to Hudson's bay, as within the " Indian territories of such other parts of America as aforesaid; and it shall be lawful for " the court in the province of Upper Canada, in any case in which it shall appear expedient " to have any evidence taken by commission, or to have any facts or issue, or any cause or suit " ascertained, to issue a commission to any three or more of such justices to take such evi« 16; iciflcd ia on's Bay lerica." eceraber, leh parts PS of the n' of the *' dcncc and return the same, or try such issues; and, for that purpose,, to hold courts, and " to issue subpoenas, or other processes, to compel attendance of plaintiffs, defendants, juror«, " witnesses, and all other persons requisite and essential to the execution uf the several pur- " poses for which such commission or commissions had issued, and with the like power and " authority as are vested in the courts in the said province of Upper Canada; and any order " verdict, judgment, or decree, that shall be made, found, published, or declared, by and " before any court or courts held under and by virtue of such commission or commissions, " shall be considered to be of as full effect, and enforced in like manner, as if the same had " been made, found, declared, or published, within the jurisdiction of the court of the said " province; and at the time of issuing such commission or commissions shall be declared the " place or places where such commission is to be opened, and the courts and proceedings " thereunder held; and it shall be, at the same time, provided how and by what means the ex- '• penses of such commission, and the execution thereof, shall be raised and provided for. "jlnd be it further enacted, That it shall be lawful for his Majesty, notwithstanding any " thing contained in this act, or in any charter granted to the said Governor and Company of " adventurers of England trading to Hudson's bay, from time to time, by any commission " under the great seal, to authorize and empower any such persons so appointed justiceo of " the peace as aforesaid, to sit and hold courts of record for the trial of criminal offences " and misdemeanors, and also of civil causes; and it shall bo lawful for his Majesty to order, "direct, and autliorize the appointment of proper officers to act in aid of such courts and "justices within the jurisdictio. assigned to such courts and justices in any such commis- "sion; any thing in this act or in any charter of the Governor and Company of merchant " adventurers of England trading to Hudson's bay, to the contrary notwithstanding. " Provided always, and be it further r.iacted, That such courts shall be constituted as " to the number of justices to preside thoe'n and as to such places within the said territo- " ries of the sai 1 iv mpany or any Indian territories or other parts of North America afore- "said, and the iimes and manner of holding the ;.amc, as his Majesty shall from time to " time order and direct; but shall not try any offender on any charge or indictment for any " felony made the subject of capital punishment, or for any offence, or passing sentence " affecting the life of any offender, or adjudge or cause any offenders to suffer capital pun- " ishment or transportation, or take cognizance or try any civil action or suit in which the " cause of such suit or action shall exceed in value the amount or sum of two hundred "pounds; and in every case of any offence subjecting the person committing the same to " capital punishment or transportation, the court, or any Judge of such court, or any justice " or justice of the peace, before whom any such offender shall be brought, shall commit such " offender to safe custody, and cause such offender to be sent in such custody for trial in the " court of the province of Upper Canada." "And be it further enacted, That nothing in this act contained shall be taken or construed " to atlVct any riglit, privilege, authority or jurisdiction which the Governor and Company of " adventurers trading to Hudson's bay are by law entitled to cUiim and exercise under their " charter; t)nt that all such rigiits, priviiegeii, authorities, and jurisdiction shall remain in as " full force, virtue, and effect, as if this act had never been made, any thing in this act to the " contrary notwithstanding." These provisions of the law arc in substance embodied in the subsequent grants. It is manifest frnin this, as well as iVom the nature of the business which tlie Hudson's Bay Com* pany was autliorized to carry on, that the imperial parliament never meant to circumscribe -m the possession of the company within such limits as might be defined by actual and visible boundaries. The supposition sf an adverse possession by any other party of any portion or subdivision of the territory is at variance, not only with the whole spirit of the act, but is repugnant to the idea of an exclusive right of trade over a waste and uncultivated country. ,-. •,• ; ,5 - The end and object of the grant was to do away with the disputes engendered by undefined possessions, inseparable from the nature of the trade and circumstances of the country. On the third question: The right reserved in the second article of the treaty, namely, that the navigation of the branch of the Columbia river shall be free and open to the Hudson's Bay Company, and to all British subjects trading with the same, is, in my opinion, intended exclusively for the benefit of the Hudson's Buy Company, aud cannot be extended to confer a general right on all British subjects, except for the purposes of such trade. If, therefore, the Hudson's Bay Company dispose of their rights, the object for which the reservation was made ceases, and the right, in my opinion, becomes extinct. JNO, ROSE, Q. C. Montreal, December I, 1848. A que! F how S( Brii T, to B and Ai entir ques It trad( privi this Bay but enga Hudi ceas( B^ Eind visible 17 subdivision pugnant to y undefined )untry. imely, that le Hudson's n, intended 1 to confer which the ;e, Q.c. OPINION OF HON. LOUIS McLANE. .1 T An opinion of John Rose, esq., ♦^ leen's Counsel, Montreal, Canada, upon the following •questions, has been shown to me: Firstly. As to the nature of the rights of the Hudson's Bay Company over its territories, how those rights were acquired, and in what manner now secured? Secondly. What the expiession "possessory rights," contained in the treaty between Great Britain and the United Stales, concluded the day of A. D., 1846. Thirdly. Whether the use of the Oolambia river, under the terms of the treaty, continues to British subjects in case of the surrender, by the Hudson's Bay Company, of its territories^ and the right of using the river to the United States? And my (ipinion has also been requested particularly upon the third question, and, with entire confidence in the researches and conclusions of Mr. Hose upon the first and second questions, I proceed to state it accordingly. I am quite clear that the second article of the treaty related exclusively to the rights and trade of the Hudson's Bay Company, and intended to reserve for those objects a limited privilege only, which, without the article, would not have been claimed. The sole object of this provision was to keep the navigation of the river open for the trade of the Hudson's Bay Company, if carried on by that company and British subjects. It was not a general but a particular right; even British subjects could not use the river as such, unless they were engaged in the trade with the Hudson's Bay Company; and I am of opinion that, if the Hudson's Bay Company surrender or dispose of their rights, the object of the treaty would cease, and the right reserved by the second article would be extinct. LOUIS McLANE. Baltimore, January 6, 184?. 18^ OPINION OF JOSIAH RANi^ALL. OPINI I i 1. i '% I have attentively examined the treaty concluded the 15th June, 1846, between the United States of America and the united Icingdom of Great Britain and Ireland, respecting the sove- reignty and government of the territory on the northwest coast of America, lying westward of the Rocky mountains, and the rights of the Hudson's Bay Company and the Puget's Sound Agricultural Company, therein contained. I have also read the opinions of Messrs. Daniel Webster and Richard S. Coxe, and sundry other documents and letters accompanying Ike same. First. I am of opinion that the Hudson's Bay Company, and the Puget's Sound Agricul- tural Company, have a legal title to the lands in their enjoyment and possession. At the date of the treaty, and under the treaty, such title is protected to its fullest extent. What consti- tuted such a possession as confers a title may be a matter of somo difficulty, but the rule on this subject is clearly stated by Mr. Coxe, and I cheerfully subscribe thereto. ^ It is tiue the third section speaks of the possessory rights of the Hudson's Bay Company. This is the language used in treaties when the rights of individuals are intended to be re- served, and I think the true meaning of the section is, that, although the sovereignty of the country is vested in the United States, yet that the private property of the Hudson's Bay Company, and British subjects, is intended to be recognized and held sacred, as theretofore used and enjoyed. Secondly. The fourth article of the treaty contemplates the purchase, by the United States, cf farms, lands, and other property, within the territory ceded and assigned to them. The advantages of buying out British companies located within the country of the United States are obvious, and will, of course, be appreciated by our government whenever the negotiations to effect that object shall be commenced. Thirdly. The second article of the treaty secures to the Hudson's Bay Company, and all British subjects fading with the same, the right to navigate the Columbia river. The terms securing this right, taken in connexion with other matters, are not explicit; but, nevertheless, I am of the opinion that, whenever the Hudson's Bay Company shall be bought out by the government of the United States, and their rights under the treaty extinguished, the privilege to navigate the river ceases, and, from that time, neither the company nor British subjects retain any privileges not held by the subjects of other foreign States. Fourthly. It is not necessary to refer more particularly to the opinions of Messrs. Webster and Coxe, excepting to say that I substantially concur in the views expressed by those gen- tlemen. JOSIAH RANDALL, Philadelphia, December 18, 1848. i % Mary. rights. § througl: cstablis elusive ensued Atk Britain in that f "Britis 19 OPINION UPON THE NAVIGATION AND POSSESSORY RIGHTS OF THE ? HUDSON'S BAY COMPANY IN OREGON- in the United ing the sove- ng westward the Puget's IS of Messrs. oconopanying und Agricul- At the date What consti- : the rule on ly Company, ded to be re- ?ignly of the [udson's Bay s theieiofore nit«jd States, them. The nited States negotiations lany, and all The terms nevertheless, t out by the the privilege tish subjects rs. Webster y those gen- NDALL, V: By the Oregon treaty of June 15, 1846, the right to navigate the Colunjbia river was secured to the Hudson's Bay Company, and to all British subjects trading with the same. Jrt. II. The "possessory rights" of that company south of the forty-ninth parallel of north latitude are to be respected. Jrt III. The farms, lands, am' -ther property of every description, belonging to the Puget's Sound Agricultural Company, on the north side of the Columbia river, are confined to said company, subject to be transferred to the gov- ernment of the United States, at a proper valuation, if deemed by that government to be of public and political importance, jlrt. IV. These rights of navigation, possession, and property, are offered by the respective com- panies to the government of the United States, for one million of dollars. The propositioB involves a consideration of the nature, extent, and value of the rights and property in question ; and the validity and effect of such transfer. To understand the subject fully, a brief historic sketch may be essential. The Hudso I's Bay Company* was incorporated by charter o, Charles the Second to Prince Rupert and his associates, dated the 2d day of May, 1670, 1 under the title of "The Governor and Company of Adventmers of England trading into Hudson's Bay," with the exclusive privilege of trading to all parts within the entrance of the strait, commonly called Hudson's strait. The charter was ample and perpetual.^ But the exclusive privilege, not being sanctioned by parliament, was said to have been taken away by act of 1 Will. 4r Mary. The company, however, continued to claim and exercise exclusive and prohibitory rights. § Superior advantages over individual traders enabled them to extend operations through nearly the whole fur region of North America, and secured a monopoly until the establishment, in 1783, of the Northwest Fur Company. This company disputed the ex- clusive right of the Hudson's Bay Company, actively opposed it, and hostilities frequently ensued between the servants of the two companies.il At length, in 1821, 3d July, by an act of parliament to regulate the fur trade, &c., Great Britain extended her civil and criminal jurisdiction over her subjects engaged in the fur trade in that territory. In the same year the two rival companies were united by license of the "British crown," and the whole business was thereafter conducted under the name of the * The followiug historical sketch of the Hudson's Bay and Paget Sound Companies, is derived chiefly from the highest American authorities; SilHinairs Jonrnsi, KncyclopiiJilia Americana, Irving's Astoria, Wilkes' Narrative, Oreenliow's Orgon, I'resiileuts' message and accompanying documents, and the Congressional debates. Of the latter, Mr. Benton's speech m the Senate, on confirming the treaty, and Mr. Owens" speech in the House of Rejiresentatives, on the Orogon question, are cliii-ny usfi. Tlio British authorities cited are also of the highest character within reach. " lOii'; otbi-r authorities, B.ilisli and Am.:ican, give 2d May, 1C70, t Iti'.-' Cyclop"' ,Iia.— Ai'-.. •■■,. ■.'':; f. L.i;. % Mr. T)<.iiton on ratilji.VL; ili^ yj. ,. ^ Recs' Cyclopicdia. II Encyclopadia Americana. -Orenhow's Oregon. 11 80 Hudson's Bay Company. This license, sdnoiioncd by act of parliament, granted to the Hud- son's Bay Company excluMve trade with the Indian tribes in the Oregon territory, subject to a reservation that it shall not operote to the exclusion "of subjects of any foreign States, who, under or by force of any convention, mny be entitled to and enj^aijed in such trade."* This license was for twenty-one years', but afterward ii was renewed for the further period of twenty-one years. By this union, the only formidable rivalry to the Hudson's Bay Com- pany ceased, and by the crown license its monopoly was secured against all further ques- tion or denial. From this period the operations of the company were greatly extended north, east, south, and west. Forts and tradinjr-houses were erected, colonies planted, and settlements made, 80 that as early as 1S34, the country extending from the Pacitio, east to the Rocky moun* tains, and from fifty-three degrees north latitude to the Columbia river, was occupied by the Hudson's Bay Company. t Within the portion lying between the Columbia river and the boundary line of the 49th degree are thirteen forts and trading establishments, erected for defence a^amst the Indians and other irregular force. These have been carefully selected lor ofTensive and defensive operations, for the military command of the couutry, and one po- sition of great strength, Cape Disappointment, hold*, entire command of the navigation of the Columbia river 4 The American traders and trappers, instead of enjoying a participa* tionin the trade of the Columbia river and its tributaries, were obliged to keep south of that river, out of the track of the Hudson's Bay Company. ^^ That company induced the re- moval to what they call the American side of the river of every citizen of the United States who attempted a settlement on what they term the British side. 11 Not one American citi- zen has found a home nortn of that stream.^ The Hudson's Bay Company was established mainly for purposes of trade. Its charter precluded agricultural operations." Besides, much of the country occupied by the company was not adapted for agriculture. In so wretched a country there can be no plantations, properly so called, nor any towns and villages. The resident traders, therefore, must be lupplied with bread, beef, flour, peas, and other necessaries from England, or some parts of America. tt The Puget Sound Agricultural Company was therefore established under the auspices of, and as auxiliary to, the Hudson's Bay Company, with the chartered right and capital to found extensive agricultural settlements of the most permanent kind.^t Captain Wilkes gives the following account: " As the charter of the Hudson's Bay Company precludes their engaging in agricultural operations, another company has been organized under the title of the Puget Sound Com- pany, the shares of which are held by the officers, agents, and servants of the Hudson's Bay Company, and its officers are exclusively chosen from among them. • • • • The cap- ital is £500,000, (two millions of dollars.) Its operations are large, comprising importations of stock from California, and some of the best b-eeds of cattle from England. They have • Pres. message, 184.5. T 25 Siilinian's Journal, 324. 2 Irviiijj's Astoria, 270 t Sir George Simpson. ^ living's Astoria, 2Gi». 25 Silliman's Journal, 324 II Robsrt Dalf Owen, House Rep. Jan. 20. IT Greenliow, :.W. ** 4 Wilkes' Nariative, 307. t* Reel' Cycloiiedia. Furs. U Mr. Owen. biaJ the) scij ish oftj bei froil sisti 21 ) the Hud- ry, subject II States, ;h trade."* tlier period Bay Com- •ther ques- cast, south, lents made, icky moun- pied by the er and the erected for illy selected and one »>o« ivigation of a partioipa* outh of that ced the re- nited States nerican citi- Its charter the company plantations, ore, must be ome parts of id under the ed right and 4t Captain 1 agricultural , Sound Com- iludson's Bay • The cap- importations They have ■i also entered into farniingon an extensive sonic, unng ns laborers the servants of the Hudson'* Bay Company, who are bound to do all manner of servico required of them, even to bearing arms." 4 Wi'kes' Nar. 307, 308. 8vo. ed. Its location embraces the mo^t valuable portion of the Oregon territory for agricultural and commercial purposes. The centre of their operations is Fort Nisquall;;, at the southern extremity of I'ugnt sound, the v.ry point at which, In all probability, a line of communica- tion hence to China and the East Indies would terminate, and the consequent embarkation of the Asiatic trade; the New Orleans, m short, of the Columbia valley, with half the world directly open to the vessels that shall leave her wharves.* By Senator Benton, the P-iget Sound Company is thus spoken of: "The company is in the Olympic district, and it will be of public and political importance that nu foreign company should be established there. The Olympic district is detached from the valley ofth") Columbia, is fertile auu picturesque — a square of mountains and valleys on the sea coast — and will make a fine American settlement of one hundred miles every way. Puget's sound and its waters will afford select positions for naval stations. • " * * A naval station, especially for large ships, may be established there; and in that point of view it may be of public and political importance that no foreign company should be there. If the article had been simply for the confirmation of their lands to the company I should have had great objections to it; but the option of taking them at a valuation removes tho difficulty ."t Such was tho position of tho Hudson's Bay Company, and the Puget Sound Agricultural Company, in reference to the territory south of the 40lh°, at the date of the Oregon treaty. Its stipulations are to bo construed with reference to the contracting parties, the subject matter, and the persons on whom it is to operate. United Stales v. jirrtdondo and others; 6 Peters' Re[»orts, 710. The treaty contains the following articles: "Art. 1. From tho point on tho forty-ninth parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United States and Great Britain tei.ninates, the line of boundary between the territories of the United States and those of her Britannic JMajesty shall be coulinued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's island; and thence sotillierly, through the middle of the said channel, and of Fuca's straits, to the Pacific ocean: Provided, however, That the navigation of the whole of the said channel and straits south of the forty-ninth parallel of north latitude remain free and open to both parties. "Art. II. From the point at which the forty-ninth parallel of north latitude shall be found to intersect the great northern branch of tho Columbia river, the navigation of the said branch shall be free and open to the Hudson's Bay Company, and to all British subjects trad« ing with tho same, to the point whore the said branch meets the main stream of the Colum- bia, and thonco down the said main stream to the ocean, with free access into and through the said river or rivers; it being understood that all tho usual portages along the line thus de- scribed shall, in like manner, be free and open. In navigating the said river or rivers, Brit- ish subjects, wiih their goods and produce, shall bo treated on the same footing as citizens of the United States; it being, however, always understood that nothing in this article shall be so construed as preventing, or intended to prevent, the government of the United States from making any regulations respecting the navigation of the said river or rivers, not incon- sistent with the present treaty. 'Mr. Owen. t Mr. ISuntuii on confirniiiiir tlie treitv. 22 "Art. III. In the future appropriation of the territory south of the forty-ninth parallel of north latitude, as provided in the first article of this treaty, the possessory rights of the Hudson's Bay Company, and of all British subjects who may be already in the occupation of land or oth< r property lawfully acquired within the said territory shall be respected. "Art. IV. The farms, lands, and other property, of every description, belonging to the Puget's Sound Agricult..aal Company, on the north side of the Columbia river, shall be con- firmed to the said company. In case, however, the situation of those farms and lands should be considered by the United States governraenc to bo of public and political importance, and \he United States government should signify a desire to obtain possession of the whole, or of any part thereof, the property 30 required shall be transferred to the said government, at a proper valuation, to be agreed upon by the parties." I. The Navigation Right. Is the, British right to navigate the Columbia river,, under the terms of the Oregon treaty^ exclusive in the Uudsonh Bay Company^ and is it perpetual ? This It- tlie tirst question arising under the ofler now made to the United States govern" tnent. By the first article of the treaty, the sovereignty of the river within the prescribed bound- ary is vested in the United States, subject to the right specified in the second article. It is apparent that no other right than that expressly mentioned was contemplated by the high contracting powers; and that nc claim, founded on protence of the upper portion of the north- ern branches being within Lritish dominion, was intended to be recognized. While the right of a nation, possessing the upper parts of a navigable river, to descend to the sea, may be sometimes acknowledged, it is, nevertheless, termed by jurists a right of imperfect obliga- tion.* But when, as in the present instance, a territory has been in dispute, a boundary agreeu upon, and a special right to navigation stipulated to one of the parties, it is not to be conceived that any further right, dehors the treaty, would be seriously set up by such party, or in any degree tolerated by the other. The British navigation right is, therefore, limited to the extent expressed by the treaty, and cannot be extended beyond its plain letter, on the ground of t'^e upper branches passing through British territory, or upon any other pretence whatever. The stipulation is exclusively in favor of that company, extending for its benefit to Brit- ioh subjects, trading A'ith the same. Not only, then, is the right limited to subjects of a particular description, but the privilege itself appertains to the comps^ny, being for its exclu- sive use. And if the company may relinquish the chief and piimavy benefit of navigation for themselves, their olTiccrs, agents, &c., it would seem beyond doubt, that the merely secon- dary and subordinate privilege extended to those trading with tlieni may also be relinquish- ed. The company's power to surrender any right belonging to it has not been questioned; for, independent of any positive law, all corporations have the absolute jus disponendi, neither limited as to objects, nor circumscribed as to quantity. t Settlements had been made, trad- ing establishmencs erected, business extensively engaged in by the company in reference to the navigation of the Columbia. It was, therefore, an act of duty in the British govern- * Kent's Com. 35.— citing Grotlus, lib. ;!.— rtiff. lil). Tf. cli. 3.— Vatlel, lib. '2, sec. 21-2. t Kent's Com. 261.-1 Ves, & Bea. 220. Anjell and Ames on Corporations. 12.">, 12f); 2 Blar.l, 112. 23 h parallel of ighis of the iccupation of Led. mging to the shall be con- lands should lortance, and whole, or of rnment, at a the terras Company^ atcs govern" ibed bound- irticle. It is d by the high of the north- rhile the right 1 sea, may be lerfeet obliga- 2, a boundary it is not to bo by such party, rcfore, limited letter, on the ,lher pretence onefit to Brit- subjects of a ; for its exclu- navigation for merely sccon- be relinquish- en questioned; onendi, neither in made, trad- 1 reference to Jritish govern- IK. ment, and of just liberality on the American side, to stipulate for that right so long as re- qured by the interests of the company. And to ascertain the extent of this stipulation, wa may refer moreover to the fact, that the right to trade, upon which the right to nr.vigate is dependent, was, by express terras of the royal license, limited to persons "authorized by said company;" all other British suljjects being prohibited. This prohibition was rigorously en- forced; so that the right to navigate, being dependant upon the capacity to trade with the company, and that capacity resting upon authority of the company, the stipulation, if relin- quished by it, can enure to no other British subject. This right, therefore, belongs exclu- sively to the Hudson's Bay Company, to be enjoyed, for its benefit, by British subjects trading with it, and, like any other exclusive right, may be surrendered or transferred to the govern- ment of the United States, so as forever to exclude all other claims. // is also perpetual. The right being stipulated without limitation of time, necessarily at- taches for the duration of the company's existence. An opinion has been expressed, that ac- cording to the terms of the treaty, this right can exist only during the term of the present crown license.* This opinion is based upon the assertion that the Hudson's Bay Company, referred to ia the treaty, is not the one chartered by Charles the Second, but is a distinct company, created in 1821, and existing by license of the crown, continued for twenty-one years by new license in 1842 f Supposing the fact to be as alleged, the conclusion that the naviga- tion right under the treaty must necessarily expire with the present crown license, may per- haps be questioned. The company has an artificial existence created by sovereign authority, which existence may terminate at a specified period, or be indefinitely extended by an exer- cise of the same sovereign power. Tliis power known to the contracting parties, is, never- theless, unrestricted in its exercise by the treaty; nor is there any word or reference indica- ting a restriction to the present being of the company. An extension of corporate existence is regarded not as a new creation, but merely a continuance, or protraction, of former being. Former rights and privileges necessarily accompany this continued existence. Supposing, therefore, that the existence of the Hudson's Bay Company commenced in 1821, and may expire in 1863, by the terras of the present license, yet there is no reason co doubt that an extension would be sought for and granted. Were the United States, in suou a case, to Jeny the right of navigation after such extension, it would scarcely be assented to by the British government; so that new occasion for dilTiculty and collision must arise. But it is said that, upon this understanding, the Senate advised the acceptance of the treaty; notice thereof being given to the British minister without protest from his govern- ment. t To this it may bo answered, that the notification signified only the understanding of one party, and cannot, in the absence of express assent, conclude the other, who may rely upon the plain letter of the treaty, and its obvious import. And the British government would, doubtless, be slow to acknowledge Mr. Buchanan's notice to Mr. Packenham as a part of the treaty, or as a modification, or interpretation of its terms. Besides, the stipula- tion was for the benefit of the Hudson's Bay Company. Notice to the company and its assent to this restricted aoception may have been deemed essentlil by the British govern- ment; so that in any view, grave difiiuulty may arise upon this point between the two na- tions, unless an arrrangement be made with the Hudson's Bay Company. * Senate debate on ititlt'ying the treaty. t Senate ileljale on ratilying llie treaty. t Ibid. 24 But again, it is conceived that the treaty refers to the same company, chartered by Charles- the Second, and not a second rr different company. The Xorthwest Fur Company having been established, as has been seen, in 1783. the ex' elusive privileges of the Hudson's Bay Company were denied, and a ruinous competition en- sued. Bat in 1821, a coalition took plaeo; the two companies were united; the relics of the Northwest Company became merged in the rival assoeiation, and the whole business was thereafter conducted under the name of Hudson's Bay Company.* In the same yepr British Jaws were extended over the territory, and by license of the British crown exclusive privi- leges of great magnitude were granted to the Hudson's Bay Company. The "union, or coalition," of the two companies, the "merging" of the Northwest into the Hudson's Bay Company, are spoiten of, as also the "Crown license," granting exclusive privileges to the Hudson's Bay Company, but no mention is made of the creation of any "second" Hudson's Bay Company, distinct from that chartered by Charles the Second. t But, reference to a few facts and documents are conclusive on this question. $ Charles the Second's charter to the governor and Company of Hudson's Bay was perpetual, the corporate name being "The Governor and Company of Adventurers of England trading into Hudson's Bay." The powers were almost sovereign, the charter providing that the com- pany, "at all times hereafter shall be personable and capable in law to have, purchase, receive, possess, enjoy, and retain lands, rents, privileges, liberties, jurisdisction, franchises, and hereditaments, of what 'Kind, nature, and quality soever they be, to them and their succes- sors." • * The whole trade, fishery, navigation, minerals, fee, of the cou.itry^is g; anted to the company exclusively; and the company is empowered "to send ships and build fortifi- cations for the defence of its possessions, as well as to make war and peace with all nations and people not Christians." The act of 1 W'll. & Mary, heretofore mentioned, is said to have taken away the exclusive privileges of the charter, but they continued to be claimed by the Hudson's Bay, and resisted by the Northwest Company. In 1804, an act of 43 Geo. III. extended the jurisdiction of courts of justice to certain parts of North America, auj 'ining the provinces of Upper and Lower Canada. But, in 1814, the enmity existing between the Hudson Bay and Northwest Companies broke out into regular war, which was openly carried on, Posts were taken and destroyed on both sides, and battles fought. These atl'airs. were brought before parliament in June, 1819. A comprorais3 was effected by ministerial mediation, and, on the 2d of March, 1821, an agreement was made fur putting an end to competition, and carrying on the tr?ide in the name of the Hudson's Bay Company exclusively. Four months afterwards, 2d July, 1821, an act of parliament to regulate the fur trade and establish criminal and civil jurisdiction, ivas passed. It recited the competition and strife heretofore existing between the companies, und, among other provisions, authorized his Majesty to grant a royal license to the Hudson's Bay Company, by its chartered name, for the exclusive privilege of trading. The same company is expressly named by its chartered title, in the first, third, ninth, tenth, and eleventh sections of the act, and finally tho fourteenth section is as follows: "XIV. Jnd be it further enacted, That nothing in this act contained shall be taken or construed to affect any right, privilege, authority, or jurisdiction, which the Governor and * Irviiig's Astoria.— Sillimnn's Journal.— l'ros,idenl's inc. >age, lc*45. t Set '.louiiinenls. — Greenliow, 4'>.'), 4Tfi. { Greenliow'i Orpgoii — En. Am. Irving's Astoria. f )y Charles !3, the ex' etition en- e relics of siness was ppr British 31V e privi- union , or Ison's Bay ges to the Hudson's Charles letual, the ading into t the com- e, receive, !hises, and sir succes- is g; anted uiid fortifi- all nations Companies I destroyed nt in June, arch, 1821, r"4de in the July, 1821, nrisdiction. companies, e Hudson's The same tenth, and 3e taken or vernor and 25 Company of Jdventurers trading in Hudson'i, Bay, are by law entitled to claim and exercise under their charter: but that all such rights, privileges, authorities, and jurisdictions shall remain in as full force, virtuCj and effect as if this act had never been made." Under the first section of the act, a royal license was issued on the 21st day of December, 1823, and is entitled a " Grant of the exclusive trade with the Indians of North America to the Hudson's Bay Company." After reciting, as in the act of parliament, the previous difR- cultios botween the two companies, and an agreement between them to put an end to com- petition, and carry on the trade "in the name of the said governor and company exclusively," it proceeds to grant the exclusive privilege of trade to the Governor and Company of Adven- turers, trading into Hudson's bay, and certain members of the Northwest Company. Three years afterwards, in 1824, the interest of the Northwest Company, under this license, was, by mutual agreement, extinguished, the Hudson's Bay Compciy becommg solely possessed of the privileges. In 1838. four years before this license by its terms would have expired, it was surrendered, and a new grant, for a yearly rent to the crown, was made to the company for twenty-one years from its date. This grant recites tho preceding, and that "the said governor and company have acquired to themselves all the rights and interests" of the mem- bers of the Northwest Company, under the preceding grant, with express prohibition of trade tr all other British subjects, " other than and except the said governor and company, and their successors, and the persons authorized by them."* The company, referred to by the treaty, would seem, therefore, to bo the same chartered by Charles the Second. It does not date its existence from 1821, but that period marks a great change in its fortunes by the co- alition with, and merging of, its rival, and by th" "crown license" establishing, by sovereign • authority, privileges either not before possessed, or until then contested and denied. The union with the Northwest Company was not the formation of a new association, but the merger of an old rival, followed in 1831 by final extinction. And the crowa license existing at date of the treaty, was not the creation of a new company, but a new grant to an old ex- isting company. It created, not a trading right, but a trading monopoly. It was occasioned by competition; to put down future jompetition was its object. It is apparent, therefore, that the Hudson's Bay Company, referred to in the second article, is the same chartered by Charles the Second; that it has a perpetual existence under the royal charter, and may claim, under the Oregon treaty, a right to navigate the Columbia river forever^ But, be this as it may, the charter ot Chark's the Second does not seem to have been at any time surrendered hy the company, nor limited or revoked. But, on the contrary, it is re- peatedly recognized by the act of parliament as ir. force; and, by the 14th section, its rights, privileges, authorities, and jurisdictions are declared to be in full force, virtue, and elfect. And, moreover, the royal license existing at the date of the treaty, was granted to the Hud* son's Bay Company alone, reciting upon its face the final extinction of the Northwest ConX' pany, and granting exclusive privileges of trade solely to the governor and company created by Charles the Second's charter. The company claims its existence under the charter, and its new privileges under tlie crown license. While, therefore, the exclusive privileges granted by the crown license may expire, yet the company may continue with all its powers in perpetuity. Its monopoly of trade ends with the license. Its general right of trading re- mains "all time hereafter" under the charter. So that the company, having this perpetual existence at the date of the treaty, with exclusive privileges, limited to a specified time, but * Greenhow, -I'j. 26 m uot essential in any degree to the right claimed under the treaty, may insist on the exercise of that right, with all its inoonvenienco to the American government. The company thus existing by charter of Charles, and it being admitted* that the charter is perpetual; that the navigation privilege is limited in duration only by the period which, at the treaty's date, limited the company's existence, the argument may be stated in its simplest form: the treaty right enduref while the company exists; the company has perpetual existence; by conse- quence it has perpetual right. Whether it was created by the chatter of Charles, or by the crown license; whether its ex- istence be limited or perpetual ; in either view of the case, the Hudson's Bay Company, and the British subjects trading with them, have, under the second article of the treaty, a right to navigate the Columbia river; that is of the utmost importance to American in- terests, as well as for the future peace and amity of the two nations, to be terminated without delay, in the only possible mode, viz: by a fair and amicable arrangement between the United States government and the Hudson's Bay Company. t II. The Possessory Right. The next question is as to the "possessory rights" of the Hudson's Bay Company, and of British subjects in occupation of land or other property lawfully acquired in said territory. By the third article it is stipulated that these rights shall be "respected." It is understood tiiat the British subjects referred to are those claiming by grant, or other- wise, from the company, for none others were in the territory; nor could there be, under the terms of royal grant, and the jealousy of the company, which suffered no one else to set foot in the territory. The term possessory rights, indicates not merely occupation, or naked possession being in the company, but also that rights entitled to respect accompany this oc- cupation and possession. Sovereignty of the United States government over the territory is established by the treaty. But under the British claim of title, by sanction of the crown and protection of British laws, the Hudson's Bay Company had taken possession of portions of the territory, established settlements, and made graHts of lands to other British subjects, who were in occupation of lands and other property withiri the territory, lawfully acquired, as against the British government. All this may be termed a violation of the convention between the t%'o governments. Let it be so; and grant that the American government, ia the absence of any treaty stipulalion, might have regarded all the titles of the Hudson's Bay Company as illegal and void, and might, therefore, justly seize their possessions, and turn out the occupants and possessors, as mere intruders and trespassers ; yet the case was very diflerent with the British government. Had they fallen within the British lines, these possessory rights would have been vJid to the utmost extent. For not only was the pos- session of the Hudson's Bay Company recognized by its ;;,overnment, but al- < their absolute right to grant and convey vast and unlimited portions of territory. t When the line came to be established, the sovereignty of the territory now in question was found to be in the United States; but with care and watchfulness, characteristic of the British government, it * Cong. Dphates. t See, also, 3 Hunt's .Morcliants' Magazine, If^j. 11 lb. AnnaU, Am. Comin«roe, (JD. 14 Hunt's Mag., 533. Lecture of Hon. Wni. SlurgUon Fur Trade. Penny Cyc. Loni.lon, Fur. t Greanhow, t^illiman's Journal : [.'ving's Astoria, Encyc. of Geo. vol. 3, 340. Lord Selkirk pnrcliaseil, from tlia Hudson's Bay Company, one tra f 110,000 acres, to wliicli he transported a colony of various nations, cliielly Dutch and German. fi7 )n the exercise company thus )etual; that the treaty's date, rm: the treaty snce; by conse- ivhether its ex- lay Company, the treaty, a I American in< linatcd without t between the mpany, and of said territory. rant, or other- e be, under the else to set foot ition, or naked jmpany this oo- r the territory n of the crown sion of portions 3ritish subjects, I'fuliy acquired, the convention government, in r the Hudson's lossessions, and t the case was ish lines, these ' was the pos- their absolute he line came to 1 to be in ihe government, it •t iff expressly stipulated that the possessions and property acquired under its sanction shall be respected as rights. The terra respect imports that they are to be esteemed as of real worthj for such is an ordinary signification of that word.* It has, moreover, received a judicial exposition by the Supreme Court to the same effect.! The American government is bound, therefore, by the treaty, to respect as a rightful possession what might otherwise have been regarded as mere trespass. And the possessory rights of the Hudson's Bay Company have, under the third article of the treaty, the same validity against the United States government as they would have possessed against the crown of England, if within British boundaries. In other cases, where the United States have acquired territory in which individuals or natives claimed rights of possession or occupancy, under governments to whom the territory had once belonged, it has been held by the Supreme Court of the United States, that such guaranties were also binding upon this government, and that the possessors were entitled to be protected in their occupations t The extent of these possessions has alreaf^y been stated — embracing, according to high American authority, all territory north of the Columbia. It has been said, however, that ''the fence is the limit of possession." This might be true if the possessors and occupiers were to be regarded in the light of mere trespassers or intruders. For, in aome cases the principle is just and well settled, that against a good title the intrader's possession is lim- ited to his enclosure. But such is not th position of the Hudson's Bay Company. They are in under British title, and their possession is to be "respected," in the same manner as if the question were l)etween the company and the crown. The charter, as has been seen, was ample, the privileges extensive and liberal, with express powers to trade, colonize, make settlements, and with all the implied powers essential to such as were expressly granted. Their relation to the country and its inhabitants, under tha charter and crown license, was that of a possessory lord; and this is one specitic signification of the word ^o«« nessory.i They are not, therefore, to be limited to actual erections, enclosures, or im- provements. Their possessory right is not to be estimated by the mere possessio pedis. The term of the treaty "possessory right," being a relative term, is to be interpreted according to the subject matter, the nature and purpose of possession. Even in case of intruders without color of title, holding against the rightful owner, settler's possessions have been defined in the State of Pennsylvania, where such claims have been much discussed, as em- bracing the whole of an unseated tract where the settler has entered, claiming and exercising ownership, putting up buildings, clearing and fencing more or less, using it according to the custom of the country, the clear land either as arable, meadow or pasture, and the woodland for obtaining timber at often as the settler shall have occasion for it to answer his purpose, 4"C.''"ii ^fow the territory north of the Columbia is adapted chiefly for the fur trade; possession would, therefore, be manifested "according to the custom of the country," by hunting and trapping. A hunting, or a fur-trading country, must either be incapable of legal possession, or its possession must be manifest by some other means than habitation, fence, and enclosure; for these are wholly inconsistent with purposes of hunting. But in this country, the posses. Hunt's Mag., 53-.!. pnrcliased. tVoiii tlia lions, cliiellj' Dutch * VVebiter's 4 to eil, t Clark V. Smitli, 13 Peters, 201. t Mitcliell V. The I'niteil Stat«, !l Peters, 711. <{\ VVi'hster. 1 toed. II 7 Watts Re|). .".'^0. 3 Punn. St. Rf|). -ilO. 16 sion of hnnting grounds has been recognized ever since the revolution. All Indian purchases proceed upon such possession. Every tribe has its hunting ground, marked, not by fence, wall, monument;, stake, blaze, or corner; but defined by the hunter's and trapper's range. And every year millions are paid by the United States government to extinguish possessory rights of the same nature, and defined by exactly the same means that limit the Hudson Bay Company's possessions in the fur region. Possession of such grounds has never been held re- stricted to an "occasional village, or cornfield." But, on the contrary, it has been declared by the highest judicial tribunal in this country, that possession of hunting g.ounds is to be considered in reference to the occupant's habits and mode of life, and that, in legal contem- plation, such lands are held as much in actual possession as cleared fields.* The Olympio district, around Puget's sound, being suited to agriculture and stock grazing, possession would be manifested by building, clearing, pasturmg cattle, &c. "as the settler shall have occasion." Exclusive possession and dominion under sanction of the crown has been strenu- ously claimed and diligently exercised over the whole territory north of the Columbia river, '■'for the Hudson Bay Company came into possession of all thote parts, extending their posts north, east, south and west, and settlers were encouraged with assistance and protection."t Large trading establishments were built, forts erected, settlements made, vast quantities of timber cut and exported,^ Every intruder was removed. § Walls, enclosures, monuments, and the like, servo to indicate appropriation and possession, and as such indicia only, have they any importance. The exclusive possession and absolute dominion of the Hudson Bay Company could not, therefore, have been more efiectually exercised, nor more plainly mani- fested by actual ditch, wall, and rampart, around the whole territory, and this with the knowledge and sanction of the British government. So that, by the treaty, this government holds the territory north of the Columbia in fee, encumbered with a right of occupation by the Hudson Bay Company, which is valid until ex* tinguished by transfer, and would bar ejectment; for it has been repeatedly decided by the Supreme Court of the United States, as a settled principle, that the right of occupancy is as sacred as a fee simple, || and the possessors of hunting grounds are to be protected in their possession, although the fee be vested in the State. "The right of occupancy in hunting grounds has been protected by the political power, and respected by the courts. So this court and tlie State courts have universally held."il And hence, to respect these possessory rights, according to the spirit and meaning of the treaty, would seem to imply an acknowledgment of title and interest in the company, incon. sistent with any claim by the United States government, beyond mere sovereignty with a naked fee, ?he possession and occupancy of the lands being a treaty right oelonging to the company, which the United States are bound to respect. To define or limit these possessory rights in any manner consistent with peace and har- mony between the two governments, will involve dilTiculties that can bo avoided in no way so easily as by purchase from the company. * Fletcher v. Peck, CmiicIi, 87.— Johnson v. M'lntosli, 8 VVlieatoii, 535.— .Mitchell v. the United States 9 Peters, 740.— Clarke V. Siiiilh, 13 Peters' Reports, VJi. t 25 Sillimaii s Journal, 325. I Greenhow's Oregon, ."IS, 400. 5 Wilkes' Nar. 130. $ Con};, ilehalc'. .Mr. Owen. II (i Cranch 87. y Wiiealon, ."..'I,). 9 Peters, 74fi. 13 Peters, 192. •r iMr. Justice Catron iu Sjuitii v. Clarke, 13 Peters, 201 . 29 III. * 10PERTY OF THE PuGET SoUND CoMPANY. Respecting the farms, lands, and other property of the Piiget Sound Agricultural Com- pany, there would seem to be no question. Considerations of public and political impor- tance inducing the purchase, are weighty, numerous, and manifest. The most grave and important of them were stated in the Senate by Mr. Benton, and need not here be repeated. The purchase was distinctly considered in making and ratifying the treaty, and but for this option, there would have been great objection to the treaty as ratified.* It may be difficult to estimate their actual value. But occupying the Olympic district, "fertile, picturesque, and forming a settlement one hundred miles every way," with the ad- vantageous harbors of Puget's Sound and Fort Nisqually as centre of operations, it would take a close calculator to discover that too large a sum is required, more especially when the improvements, forts, trading establishments, herds, agricultural implements, and capital expended in their acquisition, is taken into the account. For |the protection of American traders and settlors against Indians, forts and trading establishments will be required. Such protection the companj are under no obligation, ncr is it their mterest to furnish. In the meantime, before government can provide defence, our settlements are exposed to attack and massacre, as has already occurred since the treaty. It appears by the President's late message that an Indian war is now raging, and military force required there. By this purchase, protection can be had without delay. Until tie purchase shall be made, the Oregon settlers from the United States will come into collision with the Hudson's Bay Company, and its settlers, at every step north of the Columbia river. Strife and contention must ensue, to the constant annoyance of government and hazard to public peace. Even if this possession, as well as the navigation, were expressly limited to twenty-one years, time is an element of great value. And the advantage of immediate, un< disputed, exclusi%'e possession, instead of twenty-one years of rivalry and contention with powerful companies and loreign interests adverse to settlement, is to be estimated at more than millions of doUurs. But the question of value is, as has been truly said, of minor importance. The great point was to preserve peace by establishing the boundary. "That being settled, statesmen do not permit subordinate and accessorial matter to baulk their conclusion.'' While estab- lishing the boundary, it still remains the duty of government to guard and protect its citizens or subjects. That duty both governments are mindful of; and although much has been ac- complished by the treaty, its ablest friends admit that its full benefits cannot be enjoyed by the United States until the stipulated rights of navigation and possession belonging to the Hudson's Bay Company and Puget Sound Agricultural Company shall be extinguished. To accomplish this end, bj the purchase now oflTered, are combined all the considerations indu- eing the treaty, so forcibly urged upon the Senate, and fully approved by the American people. States 9 Peters, The conclusions to be drawn from the whole subject are: 1. That under the second article of the Oregon treaty, the Hudson's Bay Company, and all British subjects trading with tiicm, have a perpetual right to navigate the Columbia river, which may be surrendered by the company. 2. That the possessory rights, stipulated in the third article embrace the whole territory * Mr. Benton , ¥ m north of the Columbia river; or they a'C so extensive and undefined In character as greatly to embarrass the settlement of the territory, and endanger the peace and amity of the two nations, unless extinguished by purchase from the company. 3. That the Paget Sound Company, occupying the most valuable, if not the entire agricultural region north of the Columbia, being in possession of important posts and har- bors on Puget sound, considerations of public and political importance require these rights to be extinguished, as was contemplated by both the high contracting parties to the treaty. EDWIN M. STANTON. PiTTSBtTRGH, December 15, 1848. i n OPINION OF GEO. M. BIBB. Washington, January 8, 1849. Your inquiries as to the public policy and expediency of a purchase, propobed to be made by the United States, of the rights and possessions of the Hudson's Bay Cornpaay in the Oregon country south of the forty-ninth parallel of north latitude, have received my serious consideration. The Hudson's Bay Company have carried on their extensive and magnificent operations by virtue of two royal charters — the first, unlimited in its duration; the second of limited exist- ence. The Hudson's Bay Company was created a body politic and corporate by a royal charter of Charles II., dated May 2, 1670, granting to the company their rights, powers, and privileges in perpetuity over " all those seas, straits, bays, rivers, lakes, creeks, and sounds, in whatever latitude they shall be, that lie within the entrance of the straits, com- monly Hudson's straits, together with all the lands, countries, and territories upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks, and grounds aforesaid, which are not actually possessed by any of our subjects, or by the subjects of any other Christian prince or state." This charter, of 1670, established a proprietory government in the Governor and Company, 'with all powers of civil and criminal jurisdiction over the territories and places described in the charter, " to be henceforth reckoned and reputed as one of our colonies and plantations in America, called Rupert's land." The Governor and Company, and their successors, are expressly made "the true and abso- lute lords and proprietors of the same territory, limits, and places, and of all other the pre- mises, saving always the faith, allegianc£, and sovereign dominion due to us, our heirs, and successors;"' " to have, hold, pot;sess, and enjoy the said territory, limits, and places, with all and singular the premises hereby granted as aforesaid, with their, and every of their rights, members, jurisdictions, prerogatives, royalties, and appurtenances whatsoever, unto them, the said Governor and Company and their successors, forever, to be holden of us, our heirs and successors, as of our manor of East Greenwich, in the county of Kent, in free and common socage, and not in capite, or by knight service, yielding and paying yearly to us, our heirs and successors, for the same, two elks and two black beavers, whensoever, and as often as we, our heirs and successors, shall happen to enter into the said countries, territO' ries, and regions hereby granted." Among the various powers, rights, and privileges, specially enumerated in the charter, arc the following: That the Governor and Company, and their successors, their factors, ser- vants, and agtnts sin!! have " the whole, ent'rc, a- ' n'.y *iau2 and traffic, and the wlple, entire, and only liberty, use, and privilege of trading and trafiicing to and from the terri- 32 'm tory, limits, and places aforesaid;" and '• also the whole and entire trade and trafF.c to and from ail havens, bays, creeks, rivers, lakes, and seas into which they shall find entrance or passage by water or lar.d, out of the territories, limits, or places aforesaid, and to and with all the natives and people inhabiting, or which shall inhabit, within the territories, limits, and places aforesaid, and to and with all other nations inhabiting any of the coasts adjacent to said territories, limits, and places which are not already possessed as aforesaid, or whereof the sole liberty or privilege of trade and tralTic is not granted to any other of our subjects." Tho charter furthermore grants and declares, "that neither the said territories, limits and places hereby granted, ns aforesaid, nor any part thereof, nor tho islands, havens, posts, cities, towns, or places thereof, or therein contained,, shall be visited, frequented, or haunted by any of the subjects of us. our heirs; or successors, contrary to the true meaning of these pre- sents." "We straighily charge, command, and prohibit 'or us, our heirs and successors, all the subjects of ns, our heirs and successors, of what degree and quality soever they be, that none of them directly or indirectly, do visit, haunt, frequent, or trade, traflic, or adventure, by way of merchandize, into or from any of the said territories, limits, or places hereby granted, or any or cither of tliem, other than the said Governor and Company, and such par- ticular persons us now be, or shall her^ after be of that Company, their agents, factors and assigns, unless it be by the license and agreement of the said Governor and Company, in writing first had and obtained under their common seal, to be granted; upon pain" — "of for- feiture and the loss of the goods. t.ierchandize, and other things whatsoever, which shall be so brought into this realm of England, or any of the dominions of the same, contrary to our said prohibition, or the purport and true meaning c ' these presents ;" — "as also, the ship and ships, with the furniture thereof, wherein such goods, merchandize and other things shall be brought and found ;" the one-half of all the forfeitures to be for the use of the crown, tho other hn'" to the nse of the said Governor and Company. The charter also grants and declares, "that we, our heirs and surveyors, will not grant liberty, license or power, to any person or persons, contrary to the tenor of these our letters patent, to trade, traffic or inhabit unto, or Apon, any of the territories, limits, or places afore specified, contrary to the true meaning of these presents, without the consent of the said Governor and Company." The second grant was made to the Hudson's Bay Company, under the act of 2 George IV., chap. 66, bearing date 5th Deoember, 1821, limited to twetny-one years, and renewed for the further term of twenty-one years, (to expire in December, 1863.) This grant does not affect the rights, powers, privileges, or duration of the original charter, inasmuch as it is not found- ed either upon a surrender, or a repeal of the original charter, but was a grant to the cor- poration as existing, and by way of enlargement of its circuit of action. By this second grant, the Hudson's Bay Company acquired an exclusive right of trading "in all such parts of North America to the northward and westward of the lands and territories of the United ., ..^ States as do not form any part of our provinces of North Ameri"!., or of the United States." ' :' So far from curtailing any of the rights, powers, benefits, or privileges of the original charter, or the durfttkiii' thereof, the act of parliament under which this grant of 1821 was made and renewed, oh^ %hq>owered the crown to make grants under the hand and sejal of Oniof the prmcipal Secretaries of State, "to any body corporate, or company, of such paris^of N»ril^ America, as shall be specified in those grants, not lieing part of the territories therelq{brB ■ granted to the Hudson's Bay Company, or of tho North American provinces, or of the UnitV ei States of Ata«rica." ^'*' J ;.,'•'■•»/ •^•* ,g.i-:J^i^*l ^ 33 The facts are notorious, that the Hudson's Bay Company took possession of, and havo long used, occupied and enjoyed, large tracts of country south of tiie forty-ninth parallel of north latitude, and established trading houses and posts, strongly fortified, on the most eligi- bio places for trade and traffic; cultivated farms, erected dwellings and mills, and other im- provements; opened mines of coal, and other fossils, and worked tiiem; kept large flocks and herds ranging over numerous and undefined pasture grounds; cut timber in various places; sawed lumber for domestic supplies, and for exportation, and exercised various other acts of ownership and possession, within the territory called Oregon, of a character too stronclv marked to be misunderstood as the evidences of claims of property and possession, made by those professing to be the true proprietors under their charter of incorporation. These acts of ownership had been done, exercised and made known, before the treaty between the United States and Great Britain, for adjusting the boundary between them, west of the Rocky mountains, concluded and signed at Washington on the 15th June, 18-16. In the preamble to that treaty, it appears that its object, purpose and end, was to put to rest the state of doubt and uncertainty which theretofore prevailed respecting the sovereignty and government of the territory on the northwest coast of America, lying westward of the Rocky mountains, by amicable compromise of the rights mutually asserted by the parties over that territory. * ^" :<■?•■•.' • -,— ;i;,ij,- Akticle I. established for the future boundary the forty-ninth parallel of north latitude, continued westward from the formerly established boundary " to the middle of the channel which separates the continent from Vancouver's island, and thence southerly through the middle of the said channel, and of Fucas straits, to the Pacific ocean: provided, however, that the navigation of the whole of said channel and straits, south of the forty-ninth parallel of north latitude, remain free and open to both parties." r' W' "^1. ' " " Art. II From the point at v.-hich the forly-ninth parallel of north latitude shall ba found to intersect the great northern branch of the Columbia river, the navigation of tiie said branch shall bo free and open to the Hudson^ Bay Company, and to all British subjects trading with the same, to the point where the said branch meets the main stream of the Columbia, and thence down the main stream to the ocean, with free access into and through the said river or rivers, it being understood that ftU the usual portages along the line thus described shall, in like manner, be free and open. In navigating said river or rivers, British snljjects, with their goods and produce, shall be treated on the same footing as citizens of the United States; it being, however, always understood that nothing in this article shall be con- strued as preventing, or intended to prevent, the government of the United States from making any regulations respecting the navigation of the said river or rivers not inconsistent with the present treaty. " Art. III. In the future appropriation of the territory south of tJie fojtt^f-nktlc {Wtftllekof north latitude, as provided in the first articl(9 of this f*fa«tf/tl**^6sses$ory right's 'Sft the Hudson's Bay Company, and of all Britisbsabjetols w*'o rtiay be already^ hi tlift occupation of land, or other pro£g^^^>pf)aUr'a<^qn3iijjJ vinthin the said territory, shall be respected." or the Hudson's Bay Company to release and assign to the United !eif rights in the Oregon- tBrritory,, alluded to in the^sfjiond and third articles of th8 f^eat^f a question has been staptfe. Whether the.' second article of the treaty secures td *ft«|[p' V*J^^8 generally the tight of navigating the Columbia river, or is confined to thd* :::;^i/:BSi^iS%*iBay Company, and to such particular Britisli subjects as bre trading with the . "■^f^oinpany/ ^ ' "^ t- ,,..-_ ■ - ■ #: Before' itfteekig upon rtiat questk«,> I cannot JorVwir to express my q|iii4on and firm con- 3. -^ . . . ,■ , :.■>.,_.,,_ ■, « .. -, •-■■ :- .; . : , s. ■■''','' *f'''-""y'-*.- t ■>■■ .'"i- ' ' '. V """■. ■ ~, ■•■.. 'j " '"'■^ ..• ,, ■ ■ ■'■ '^m victlon that, in weighing the proposition that the United States shall purchase and extin- gnish the rights of the Hudson's Bay Company within the territory assigned to the United (States by the compromise of the conflicting claims of jurisdiction, sovereignty, and domain, in the treaty aforementioned, this question about the navigation of the Columbia river, whether taken as a -enernl right to all British subjects iudiscriininately, or as a particular tight to tho Hudson's Bay Company, and British subjects trading with that company, does not deserve consideration as weighing a feather in the balance, in comparison with me ex- tinguishment of the possessory rights of the Hudson's Bay Company, stipulated for in tho third article. As to this question of the navigation of the Columbia, mentioned in the second article of the treaty, my opinion is that the guaranty in that article does not extend to British subjects generally, but is confined to British subjects specially who are of the Hudson's Bay Company — their agents, factors, and servants, and those who are trading with the company by their special permission and license. Tho letter of this second article reserves the right of navigating the Columbia river only to the Hudson's Bay Company, and to such British subjects as arc '' trading with the same ;" not to all British subjects generally, and without tjualiflcation. Tho true intent and reason, soul and spirit of that reservation in favor of the Hudson's Bay Company, and British tra- ders with them, may be found in their charter granting to them the sole and exclusive right of trade and traffic to and from their possessions, and tho sole and exclusive right of grant- ing license to others "to visit, haunt, or trade, or traffic, or adventure by way of merchan- dise into or from" any of their territories or places, and the whole and sole power of regu- lating the trade witji them. This article was introduced into the treaty for the sole benefit of the Hudson's Bay Company, and in pursuance of that guardian care and good faith which the British government has ever most scnijiulousiy observed towards the rights and interests of corporations created by charters emanating from the crown. The position that this second article was not intended to give a right of navigating the Columbia river to British in general, irrespective of their trading with the Hudson's Bay Com- pany by their permission and license, according to 'he terras of their charter, is further illustrated by contrasting the stipulations in this secona aiticle, relative to the navigation of the Columbia river, with the stipulations in the first article respecting the navigation of the channel which separates the continent from Vancouver's island, and of the Straits of Fuca, south of the forty-ninth parallel of north latitude. In article I., the words employed to re- serve the right of all British subjects, without any qualification or restriction, to navigate that channel and the straits, are so comprehensive, clear, and unconditional, as not to admit of doubt or misconception. In the second article, there is a clear, regular, continuous, train of thought and expression contining the right reserved to navigate the Columbia river to the Hudson's Bay Company, and Biitish subjects trading with the company, by words and terras definite and precise, to the exclusion of British subjects not "trading with the same." The first article comprises all British subjects as a genus; the second article includes only particular British subjects as a species; therefore tho Hudson's Bay Company may elect to release and assign to the United States, and abandon all right of themselves to navigate, and all right to license others to trado with thora by navigating the Columbia river, in so i'ar as it dcpt-nds upon that second article, and by such release the right of navigating the Columbia river will be withdrawn from the guaranty of the treaty, and to that extent ex- tinguished. 85 Aright In British subjects geiiernlly, without regard to tbo trade with the Hudion's Bay Company by thoir lioenso, cannot (in my opinion) bo deduced from the second article ofthi* treaty. It must be sought for in ilio principles of the law of nations, opplicablo to the state and condition of two potentates ; the one owning and occupying the country on both sides of the lower part of a great navigable river, with the entrance thereof into the sea, the other owning and occupying the country on the upper waters of the tame river. la such like cases the law of nations allows to the people owning and inhabiting the upper country the right of passage by the river to and from the sea, for the purposes of lawful trade and commerce, they conduoling themselves peaceably and with due respect to the rights of others ; coupled, however, with the condition that the nation through whose tcrri* tory such foreigners are to have passage, -nay make all regulations, and take all preoau* tlons, necessary and proper for the preservation of its neutral relations, safety, and defence. In time of peace the navigation of the Coiiunbia river by British subjects, for the lawful purposes of trade and intercourse, will be of small concern. In time of war, former treaties relating to matters not executed, but executory between the belligerents, cease to have any further obligation or effect than the one or the other parties shall voluntarily allow; unless some special matter shall have been agreed otherwise in reference to the breaking out of hostili- ties. In times of peace and war, the law of nations will justify the United States in using all precautions, and making all regulations, necessary and proper for self defence and se- curity, and the preservation of their own just rights, and of their neutral relations. When to these principles of international law wc add the known policy and usages of the United States to cultivate trade and intercourse with all foreign nation*, denying to none tlie navitration of our waters for the purposes of lawful commerce to and from their own dominions, conducted with due respect to the law of nations and to our domestic relations, the navigation of the Columliia river by British subjects sinks into insiguiticancy, into a mere abstraction, in comparison with the value and importance of the posse^-ory riglits of the Hudson's Bay Company, under their charter and the guaranty contained in the third article of the treaty. The possessory rights of the Hudson's Bay Company, alluded to in the third article of the treaty, have grown out of their royal charter of 1670, granting in express terms the powers of government and dominion, and rights of tenure in free ard common soccage, with other rights, powers, and privileges of an exclusive characto-, including the rights of exclusive trade and commerce in perpetuity. The powers, ai'.liiorities, rights, and privileges expressly granted, cany with them ineidLMital powers n':ocssary and proper to the rightful and just enjoyment of the privileges, and the attairanent of the objects and ends h< which the com- pany was incorporated. The possessory rights springing out of this perpetual charter, to be respected under this third article, are so wide, so long, so deep, so multiplied, and so indefinite, as to affect seriously tlie question of public domain which will remain (if any) to the United States after fulfilling in good faith this article of the treaty. The nature and extent of the rights coming within the compass of this third article of the treaty, whether they extend to the whole terrritory possessed south of the line of compre. mise, or only to parts thereof; to what parts; the local extent of the parts; whether they must have been defined by visible boundaries, natural or artificial; or shall have constructive extension incident on acutal seating and improving; whether all the grounds commonly used for pasturing herds and llocks, ranging at pleasure, and often changing; whether places commonly used by the company for getting supplies of fuel, tiniber, and lumber, for pur- 36 poses of foreign commerce or domestic u?es, are within ihc intendment of the treaty, are questions which will arise under the grants to the Hudson's Bay Company by the royal charters under which they claim and have been exercising their powers and authorities south of the parallel of latitude of forty-ninth degree north, and the comprehensive term, "possessory rights,"' employed in the third article of the treaty. Reasoning, from the nature of man, from the history and examples of the past to the fu- ture, it cannot be disguised, that this third article is teeming with numerous, complicated, and perplexed questions of fact and law, involving the titles to lands in Oregon in doubt, un- certainties, and multiplied litigations, long protracted, and burdened with heavy costs and charges, bringing in their train evils, grievous in their nature, and demoralizing in their eirects, if not prevented by extinguishing, by purchase, the rights of the Hudson's Bay Company. If these questions are suffered to come to issue and trial, it is to be foreseen that the ex- ecutive government of the United States will endeavor to reduce the possessory rights of the Hudson's Bay Company to the smallest spare, and that the company will strive to maintain their rights and interests to their full compass, having t!ie wealth, enterprise, ability, and in- fluence to prosecute their claims to the last extremity, and to enlist the interference of their government to cause the full measure of justice to be administered to them. If these contestations shall bo suffered to have a lieginning, when will they have an end? East and west Florida were ceded by Spain to the United States by treaty, signed and concluded on the 22d February, 1S19. It was stipulated that all grants of lands by the Spa- nish government made before the 24th January, 18 IS, should be confirmed to the persons in possession. The United States acquired the possession, under that treaty, in the year 1821. Various litigations respecting the Spanish titles have grown out of that treaty; and now, after the lapse of twenty-seven years and more, the contestations are not ended. By treaty of 30th April, 1803, for the cession by France, of Louisiana, to the United States, it was agreed that the private rights and interests of lands should be secure, and the nhabitants protected in the enjoyment of their property; and, as yet, after the lapse of forty- five years, the contestations about those claims, originated before the cession to the United States, are not ended; many suits growing out of the treaty are yet pending and undeter- mined, The contestations to arise out of the third article of this treaty of 1846, (if not prevented by a prudent forecast on the part of the United States,) are not less complex and entangling than those arising out of the cessions of Louisiana and Florida. Western Virginia, western Pennsylvania, Massachusetts, Maine, Tennessee, and Kentucky, have experienced the evils, and endured the grievances, of disputed titles to lands. The people of Illinois are now laboring under the very great inconveniences and mischiefs arising out of the titles to land granted to soldiers, for bounties in the year of 1812, which are now held by non resident proprietors and unknown heirs. Titles to large tracts of laud lying in Massachusetts, in that part now within the Slate of Maine, granted to companies and individuals, by royal letters patent before the revolution, which, after being long dormant, were asserted against a great number of seaters and im- provers, produced tumults and bloodshood; thousands of armed men, feeling the common grievance, marched with intent to overawe a tribunal of justice, or to rescue the accused, if found guilty of murder. The extent and magnitude of the grievances to these settlers induced the legislature of Massachusetts to enact a law to give to settlers and improvers compensa- 37 treaty, are the royal authorities isive term, to the fu. Jinplicated, 'loubt, un- ' costs and g in their Ison's Bay lat the ex- ;hts of the maintain ty, and in- ce of their 5 an end? signed and y the Spa- persons in j'ear 1821. and noW; he United 3, and the e of forty. le United undoter- ?vented by ffling than Kentucky, ids. Tlio fs arising are now ! State of ivoliUion, ! and im. common ;cused, if 3 induced mipensa» tion for their valuable and lasting Improvements, made in good faith, as necessary and proper under the existing state of things, and to quiet the public mind. Tiie people of Maine (since lliat State was formed out of a part of Massachusetts) are yet laboring under the evils of 'hose disputed titles to land; and a case, involving questions of law common to numerous other cases, is now pending in the Supreme Court of the United States. For forty years and more, the people of Kentucky were infested by the conflicting claims to land. The dockets of the courts, State and federal, exhibited crowds of bills in chancery upon contested claims to lands and of ejectments. The occupying claimant laws, enaeted by the legislature of Kentucky, were adjudged, by the Supreme Court of the United States, to be invalid, as contrary to the compact between Virginia and Kentucky, and to the constitu- tion of the United States. In the preamble to the act to compel the speedy adjustment of land claims, enacted by Kentucky, 9th February, 1809, the legislature declared that " the prosperity of this commonweal tix hath been greatly checked, its improvement and settlement retarded, and its citizens continually alarmed, and often ruined in their fortunes, by reason of the interference of land claims, founded, or alleged to be founded, on the land laws of Vir- ginia, or of this State;" that dormant claims " are often brought up, not only to alarm, but eventually to turn out naked to the woild numerous well settled and industrious families;" "for remedy thereof, and to fix the period to which the citizens of this State, and the proprie- tors of land therein, may look forward for peace to themselves and safety to their property," this special law was enacted limiting actions at law and bills in equity, upon claims to land by adverse interfering entry, survey, or patent, to seven years, from and after the adverse possession taken and continued. This act was contested by non-residents, as contrary to the compact between Kentucky and Virginia, and to the constitution of the United States. It was finally adjudged by the Supreme Court of the United States, in January term, 1831, not to be in violation of the compact, but constitutional and valid. This decision administered peace and safety to snch settlers as came within the enactments of this statute, and relieved the people of the State, from an enormous public evil, which had harrassed the commonwealth for so many years. Difiiculties sprung up between the Hudson's Bay Company and the iN'orthwest Company, of Montreal, respecting the rights of the Hudson's Bay Company under their charter of 1G70, exciting animosities, heart-burnings and feuds, which, in 1819, had quickened multitudes into wild commotions and breaches of the peace, so serious in their character as to induce the parliament of Great Britain to interpose to put an end to them, by enacting the statute of 2d George IV., chap. C(). There arc good frrounds to believe that the rights of the Hudson's Bay Company, grown up under their original charter, and existing in the Oregon territory, had great effect in pro- tracting the adjustment, by amicable compromise, of he claims to sovereignty mutually as- .scrted by the United States and Great Britain to the territory on the northwest coast of America, lying westward of the Rocky mountains, from the time of the treaty of Ghent, in 1815, to the treaty of Washington, in 1816. Nor can it bo doubted, that the uncertainty so prevailing for so many years respecting the right of the United States to this territory of Oregon, has, in a very eminent degree, retard- ed the settlement and improvement of that territory, and checked its prosperity. The ad- justment of that question, by the compromise in the treaty of 1846, has given an impulse, a visible impetus, to settlements in the territory of Oregon. Miserable is the servitude of a people— numerous are the ills to which they are a prey in a country where a great body of the lands are hold by uncertain tenures of conflicting adversary claims, involved in perplexed questions complicated of fact and law. In such a country, slow are the improvements — mean in their kind; great the waste, and slovenly the cultiva- tion. Large bodies of lands, holden by non-resident proprietors, awaiting the augmentation in value, by the progressive labors and industry of the resident proprietors, are also aggra- vated inconveniences. The examples before cited, history teaches. All experience proves that disputed land titles, and large bodies of land, in choice situations, holden by non-residents able to await the increased value out of the improvements, labors and expenditures of residents and pio- neers, have been, and ever must be, very oppressive to people adventuring, seating and ira proving in a new country. Such circumstances produce great temptations to trespassers; to breaches of good order and the laws; are demoralizing in their effects; inline, arc a great public calamity. It is, in my opinion, a matter of very great importance — an object of public policy well wor- thy of the prompt attention of the United States, to purchase the rights of the Hudson's Bay Company within the territory of Oregon, thereby giving quiet to the people; accelerating the peopling'and improvement of the country; removing from that territory the local hjibita- tion of that great corporation possessed therein, of thirteen fortitications, on sites selected for the purposes of offence, defence, and the military command of tlie country; whereof the fort- ress at Cape Disappointment, by its position and strength, can command the navigation of the Columbia river; extinguishing tlie rights, possessions and claims, within the Oregon ter- ritory, of this wealthy, energetic, influential, powerful corporation of aliens, holding their corporate powers under a royal charter, owin^' allegiance to, and entitled to protection from, the crown of Great Britain; and by such purchase doing away a probable cause of irritation ■which might eventually disturb the amicable relations of the two nations, capable of doing to each other in war the greatest harm, in peace the greatest good. GEO. M. BIBB To George Njcholas Sanders. 39 OPINION OF JOHN VAN BUREN, Esq. Sir:— I have received your favor asking my opinion as to the riQ[hts of the Hudson's Bay Company and Va^et Sound Company, which are secured to them by the treaty between the United States and Great Britain, of the 15th June, 184 i. These are of three descriptions. First. — The right of the former company to the free navigation of the Cohimbia river. This right, it seems clear, is reserved to that company exclusive of all other British subjects, and if released by them, is extinguisV jd. Second. — " The farms, lands, and other property of every description, belonging to the Pu- get's Sound Agricultural Company, on the north side of the Columbia river."' This property is confirmed by the 4th article of the treaty to the said company, and provision is made for the purchase of such portions of it as the United States may deem of public or political im- portance and desire to acquire. Third. — It appears from a statement made by Sir George Simpson, under date of January 14, 1849, which has been submitted to me, that the Hudson's Bay Company have, south of the 49th parallel of north latitude, thirteen trading establishments or villages, situated on ihe most eligible sites as regards commerce, water power, agriculture, and dealing with the natives; that their flocks and herds pasture over large districts of country; that their out- 'ay for building, fencing, bringing land into cultivation, and importing stock, amounts to . 'arly a million of dollars, and that each of these trading villages or posts is protected by strong picketing and corner bastions, rendering them defensible against Indians, or irregular forces, if not formidiible for oflensivj operations. Assuming this to havi been substantially tlie stale of things when the treaty was conclu- ded, I am asked what was intended by the third article, which provides that " In the future pppropriation of the territory south of the 49th parallel of north latitude, is provided by the first article of this treaty, the possessory rights of the Hudson's Bay Company, and of all Brit- ish subjects who may already be in the occupation of land,, or other property lawfully acqui- red within the said territory, shall be respected." It seems to me the obvious construction of this language, used and applied in this connection, that the parties to tiie treaty regarded the OLCupation of the Hudson's Bay Company as a lawful one, which gave such a property in the soil as forbade any " future appropriation " of it inconsistent with such occupation. ^■ J. VAN BUREN. ' New Yo»ic, January 8, 1849. /<^-" /